18 U.S.C. § 1352 - Demands by Foreign Officials for Bribes
Recent Foreign Corrupt Practices Act (FCPA) cases, an amendment to the Foreign Corrupt Practices Act (FCPA), and the new pilot whistleblower rewards program show that anti-corruption enforcement remains a top priority for the Department of Justice.
The FEPA, a significant addition to the legal framework, plays a crucial role in combating foreign bribery. Its significance lies in the fact that it criminalizes the solicitation of bribes by foreign officials, even those acting in an unofficial capacity, while in the United States.
This law complements the FCPA, which targets individuals who pay such bribes. Specifically, the FCPA focuses on the suppliers of bribes, while the FEPA targets those who demand bribes, thereby strengthening the anti-corruption measures. The two laws work in tandem to cover both sides of the bribery transaction.
The FEPA does not include scenarios where the bribe requestee or payor is neither a U.S. issuer nor a domestic concern, unless the foreign official requesting the bribe is within U.S territory.
The FEPA does not qualify those foreign officials acting in an unofficial capacity, and FEPA's quid pro quo requirement may be met by influencing any act or decision taken by a foreign official in their official capacity. In simpler terms, the law requires a clear exchange of value for influence or action, commonly known as a 'quid pro quo' arrangement, for a bribe to be considered illegal.
Simply put, the Foreign Extortion Prevention Act (FEPA), codified in 18 U.S. Code 1352, is a federal law that aims to protect the integrity of international commerce by prohibiting foreign officials from corruptly requesting or accepting anything of value in exchange for:
- Exerting influence,
- Violating their official duties, or
- Granting improper advantages.
Violating U.S.C. 1352 carries serious penalties. These may include fines of up to $250,000, or up to three times the value of the bribe involved, whichever is greater, and/or incarceration in federal prison for up to 15 years. This underscores the seriousness of the law and the consequences of non-compliance in a clear and direct manner.
FEPA Quick Facts
- FEPA is designed to protect businesses from undue pressure or exploitation by targeting the 'demand' side of foreign bribery. It empowers the U.S. to penalize foreign officials for soliciting bribes from individuals, companies, or organizations, providing a sense of security and reassurance.
- The FEPA makes it a crime for any foreign official, including any employee of a foreign government or any current or former senior official of a foreign government's executive, legislative, judicial, or military branches, or any immediate family member or close associate, to demand or accept a bribe from an American company.
- The motivation behind the FEPA is clear and rooted in the need to address a significant gap in U.S. anti-corruption legislation. It seeks to hold foreign officials accountable for demanding bribes, a crucial step in the fight against corruption.
- While the Foreign Corrupt Practices Act (FCPA) penalizes U.S. companies and individuals for bribing foreign officials, no corresponding legal mechanism has held those foreign officials accountable for demanding bribes.
- The FEPA seeks to enhance U.S. anti-corruption measures by targeting corrupt foreign officials, thereby strengthening the United States' position in the global fight against corruption and demonstrating the progress and strength of the legal system to the audience.
What Does Section 1352 Say?
18 U.S. Code § 1352 - Demands by foreign officials for bribes says -
"(b) Prohibition of Demand for a Bribe.-
(1) Offense.-It shall be unlawful for any foreign official or person selected to be a foreign official to corruptly demand, seek, receive, accept, or agree to receive or accept, directly or indirectly, anything of value personally or for any other person or nongovernmental entity, by making use of the mails or any means or instrumentality of interstate commerce-
(A) from (i) any person (as defined in section 104A of the Foreign Corrupt Practices Act of 1977 (15 U.S.C. 78dd-3), except that that definition shall be applied without regard to whether the person is an offender) while the foreign official or person selected to be a foreign official, or a person acting on behalf of the foreign official or person selected to be a foreign official, is in the territory of the United States.
(ii) an issuer (as defined in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a))), or any officer, director, employee, or agent of an issuer or any stockholder thereof acting on behalf of the issuer; or
(iii) a domestic concern (as defined in section 104 of the Foreign Corrupt Practices Act of 1977 (15 U.S.C. 78dd-2)), or any officer, director, employee, or agent of a domestic concern or any stockholder thereof acting on behalf of the domestic concern; and
(B) In return for (i) being influenced in the performance of any act or decision of the foreign official or person selected to be a foreign official in the official capacity of the foreign official or person selected to be a foreign official.
(ii) being induced to do or omit to do any act in violation of the lawful duty of the foreign official or person selected to be a foreign official.
(iii) conferring any improper advantage; or
(iv) using the influence of the foreign official or person selected to be a foreign official with a foreign government or instrumentality thereof to affect or influence any act or decision of that government or instrumentality, in connection with obtaining or retaining business for or with, or directing business to, any person."
Who Is a Foreign Official?
- Any official or employee of a foreign government, department, or agency.
- Employees or representatives of public international organizations, such as the United Nations.
- Anyone acting in an official capacity on behalf of such organizations or government entities.
This definition encompasses both current officials and individuals selected to become officials, thereby broadening the range of individuals covered by this law.
What Acts are Prohibited?
18 U.S.C. 1352 makes it a federal offense for foreign officials or individuals acting on their behalf to demand or accept bribes in connection with their duties. Specifically, the law prohibits:
- Demanding, seeking, receiving, accepting, or agreeing to accept anything of value, either directly or indirectly.
- Using methods such as mail or interstate commerce to facilitate the demand or acceptance.
- Seeking improper advantages, influence decisions, or manipulating their official authority in exchange for a bribe.
The law includes extraterritorial jurisdiction, meaning that people can be prosecuted for offenses occurring outside the United States if there is a sufficient connection to U.S. commerce or entities. The law applies not only to completed bribery acts but also to attempted or agreed-upon exchanges, even if the bribe ultimately isn't delivered or accepted.
What are Related Federal Offenses?
18 U.S. Code Chapter 63 Part I - Mail fraud and other fraud offenses has several related federal statutes, including the following:
- 18 U.S.C. 1341 - Frauds and swindles.
- 18 U.S.C. 1342 - Fictitious name or address.
- 18 U.S.C. 1343 - Fraud by wire, radio, or television.
- 18 U.S.C. 1344 - Bank fraud.
- 18 U.S.C. 1345 - Injunctions against fraud.
- 18 U.S.C. 1346 - Definition of "scheme or artifice to defraud."
- 18 U.S.C. 1347 - Health care fraud.
- 18 U.S.C. 1348 - Securities and commodities fraud.
- 18 U.S.C. 1349 - Attempt and conspiracy.
- 18 U.S.C. 1350 - Failure of corporate officers to certify financial reports.
- 18 U.S.C. 1351 - Fraud in foreign labor contracting.
- 18 U.S.C. 1352 - Demands by foreign officials for bribes.
What Are the Common Defenses?
If you are under investigation for potential involvement in an international bribery scheme, understanding the implications of the Foreign Exchange Act (FEA) is essential. Understanding FEPA can help formulate a defense strategy, especially if accusations involve interactions with foreign officials who may also be subject to scrutiny.
Anyone under investigation might find opportunities to cooperate with federal authorities in exchange for leniency, mainly by providing evidence against corrupt foreign officials targeted under FEPA.
Allegations of corruption by foreign officials are serious, but our federal criminal defense attorneys can thoroughly investigate the situation to develop effective defense strategies that challenge the charges.
Perhaps we can argue that there was no corrupt intent. Perhaps we can demonstrate that any exchange or demand lacked the corrupt intention required for the offense. Maybe there was a gift offered strictly as a courtesy, and the official's actions would not have been influenced either way.
Perhaps we can question whether the federal government has jurisdiction, particularly if the alleged act occurred entirely outside the U.S. or lacked sufficient ties to interstate commerce. Perhaps we can argue that law enforcement improperly induced the accused to commit the offense, which might not have occurred otherwise.
For additional information, contact our federal criminal defense attorneys at the Hedding Law Firm, located in Los Angeles, CA.
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