The U.S. Supreme Court will not review the Fifth Circuit’s decisions in U.S. v. Kay, the Justices said yesterday. The Foreign Corrupt Practices Act convictions of David Kay and Douglas Murphy cannot be further appealed and the two must now serve their prison sentences — 37 months for Kay and 63 months for Murphy.
The former executives of American Rice, Inc. were found guilty in 2005 of bribing Haitian officials in order to reduce their company’s taxes. They argued all along that the FCPA didn’t apply to bribes to reduce taxes, or that if it applied, the “obtaining or retaining” language in the law (the business nexus element) is so ambiguous that enforcement in their case would be unfair. The Justice’s denied the petition for certiorari after a review at their Sept. 29, 2008 docket conference.
The lower court’s view of the FCPA, left undisturbed by the Supreme Court, is important for at least a few reasons:
First, the Fifth Circuit said any payments to foreign officials that might assist in obtaining or retaining business by lowering the costs of operations can fall within the FCPA.
Second, the Fifth Circuit emphatically did not think enforcing the statute against Kay and Murphy would be unfair, even if the business nexus element is a bit ambiguous. “A man of common intelligence,” it ruled, “would have understood that . . . in bribing foreign officials, [Kay and Murphy were] treading close to a reasonably-defined line of illegality. . . . Defendants took this risk, and splitting hairs . . . does not allow them to argue successfully that the FCPA’s standards were vague.”
And third, the court said the government can satisfy the “knowing” element of an FCPA offense by showing merely that the defendants understood that their actions were illegal. No specific knowledge about the FCPA and its prohibitions is required.
Denial of cert is terrible news for Kay and Murphy and a personal tragedy for them. For the rest of us, it means the Justice Department’s so-called “expansive enforcement” of the FCPA will continue. Compliance programs need to be expansive as well, aimed not just at bribes intended to help land business directly from foreign governments but extending also to any overseas public bribery that might create a commercial advantage. That includes payments to reduce taxes or speed up refunds, jump customs queues, obtain favorable product inspections, manipulate business registrations, alter rates or delivery times of national carriers, reduce utility costs, and enhance property usage — to name just a few.
View the U.S. Supreme Court’s Oct. 6, 2008 Orders List here.
View our prior posts about U.S. v. Kay here.