Wednesday, August 14, 2019

Second Circuit Limits McDonnell Decision in § 666 & FCPA Case

The Second Circuit in United States v. Ng Lap Seng, affirmed a Southern District of NY decision following a trial with convictions for "paying and conspiring to pay bribes and gratuities to United Nations officials in violation of 18 U.S.C. §§ 371, 666, and the FCPA.  There were also related money laundering convictions. One of the arguments of defendant on appeal was that the the jury was not correctly instructed in light of the Supreme Court's McDonnell decision.  The 71 page opinion, which included a separate concurrence, tells the story of payments of money "to secure a U.N. commitment to use Ng's Macau real estate development as the site for an annual U.N. conference." It examines the jury instruction to see if it meets the McDonnell decision, finding that "(1) § 201(a)(3)'s definition of 'official act,' which informs the McDonnell standard, does not delimit the quid pro quo elements of § 666 and FCPA bribery; and (2) to the extent the district court erroneously charged an 'official act;' instruction as to Ng's § 666 crimes, the error was harmless beyond a reasonable doubt." 

The Second Circuit finds that the "McDonnell's 'official act' standard for the quo component of bribery as proscribed by § 201 does not apply to the 'more expansive' language of § 666." They find that the same holds true for the FCPA. Reading the court parsing and comparing the different statutes is fascinating to read, but one has to wonder if legislative action is needed to define the contours of "official act" for each statute. Did Congress really intend for different approaches based upon the bribery statute charged? Perhaps they wished to distinguish the elected official taking campaign contributions with payments to officials who were not subject to a United States election. In any event, it sounds like it is time for the Supreme Court to accept a post-McDonnell case to see how far courts should apply the decision when facing bribery claims under other statutes.

The case also examined § 666 and whether the U.N. was excludable from this statute as a foreign government.


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