Saturday, November 3, 2007
The Fifth Circuit Court of Appeals affirmed a Foreign Corrupt Practices Act conviction in the case of United States v. Kay. The court opinion discusses, among other things, the application of the Rule of Lenity and whether the indictment and jury instructions failed to properly account for the element of "willfulness." The court found that "where the legislative history shows that 'Congress meant to prohibit a range of payments wider than only those that directly influence the acquisition or retention of government contracts or similar commercial or industrial arrangements,' the FCPA is not sufficiently ambiguous to merit application of the rule of lenity." The court also found that the failure to include "willfulness" in the indictment was not harmful error.