In United States v. Ho, 984 F.3d 191 (2d Cir. Dec. 29, 2020), the U.S. Court of Appeals for the Second Circuit refused an invitation to narrow the scope of the Foreign Corrupt Practices Act (FCPA). Two years ago, in United States v. Hoskins, 902 F.3d 69 (2d Cir. 2018), the Second Circuit ruled that the FCPA only applies to foreign nationals covered by the statute’s specifically enumerated categories. In Ho, the defendant argued that Hoskins required a further narrowing of the statute, insisting that these enumerated categories were mutually exclusive and that it was inappropriate to convict him under two separate provisions.

In an opinion written by Circuit Judge Richard Sullivan and joined by Circuit Judges Reena Raggi and Denny Chin, the court disagreed and ruled that the FCPA provisions separately targeting foreign activities by a domestic concern and U.S.‑based activities by a foreign entity are not mutually exclusive. The court upheld the defendant’s bribery convictions.

The FCPA and Precedent