Here’s the ‘agent’ instruction from US v. Hoskins

It made sense for Lawrence Hoskins to challenge whether the Foreign Corrupt Practices Act could apply to him. He had worked for Alstom SA, a French company, in Paris. He carried a UK passport and said he never set foot in the United States.

The Second Circuit said despite those facts, Hoskins could indeed be convicted — if the DOJ could prove he had acted as an “agent of a domestic concern” while violating the FCPA. The basis for the Second Circuit ruling was the FCPA itself. The text says it covers any domestic concern as well as any “agent of such domestic concern.”

Alstom’s Connecticut subsidiary, Alstom Power, Inc., was a domestic concern for purposes of the FCPA. (Both Hoskins and the DOJ stipulated to that fact.) But, Hoskins said, he couldn’t be an agent of Alstom Power when he was already an employee of its parent company, Alstom SA.

The FCPA defines “domestic concern” but not “agent of such domestic concern.” That meant it was up to Judge Janet Bond Arterton to instruct the jury about the meaning in the FCPA of “agent of a domestic concern,” and how to analyze whether Hoskins fit that meaning.

Here’s what the judge said. I’ve edited her lengthy jury instructions down to the relevant “agent” material.

QUOTE

In order to satisfy its burden of proof, the government must prove each of the following five essential elements beyond a reasonable doubt . . .

Now, the third element that the government must prove is that the defendant was an agent of a domestic concern.

A domestic concern is any individual who is a citizen, national or resident of the United States or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization or sole proprietorship which has its principal place of business in the United States or is organized under the laws of a state of the United States or a territory, possession, commonwealth of the United States. Here the parties have stipulated that Alstom Power was a domestic concern, and the government must prove that the defendant was an agent of Alstom Power, Inc., in connection with the alleged FCPA offenses.

An agent is a person who agrees to perform acts or services for another person or company, known as the principal. To create an agency relationship, there must be, one, a manifestation by the principal that the agent will act for it; two, acceptance by the agent of the undertaking; and, three, an understanding between the agent and the principal that the principal will be in control of the undertaking.

The undertaking consists of the acts or services which the agent performs on behalf of the principal.

Such control need not be present at every moment, its exercise may be attenuated, and it may even be ineffective. Proof of agency may not — need not be in the form of a formal agreement between agent and principal. Rather, it may be inferred circumstantially from the words and actions of the parties involved.

One may be an agent for some business purposes and not others. Here the government must prove that the defendant was an agent of a domestic concern in connection with the specific events related to the Tarahan Project.

You have seen and heard evidence that this term “agent” was sometimes used to refer to third-party consultants in this case. But in determining whether Mr. Hoskins was an agent of Alstom Power, Inc., you should only use the definition of agency which I have given you and you should not consider any other uses of the term “agent.” . . .

END QUOTE

After deliberating for a day, the jury convicted Lawrence Hoskins on 11 of 12 counts — six counts of violating the FCPA, three counts of money laundering, and two counts of conspiracy.

Judge Arterton set his sentencing for March 6.

Meanwhile he has asked for a post-verdict acquittal or a new trial. Those requests are pending.