This decision means that companies and individuals doing business outside the US including in the APAC region, should be aware of the possibility of US prosecutors using the honest services wire fraud statute to prosecute foreign commercial bribery where the funds were routed through the US. Further, in light of this decision, companies operating in APAC should ensure that their policies, procedures and trainings strictly prohibit commercial bribery – even if there is no specific local law to that effect in their jurisdiction.

Key takeaways

In sum, the decision has two main takeaways for companies and individuals operating in the APAC region. 

• It’s not just the Foreign Corrupt Practices Act (FCPA). The FCPA is the US anti-bribery law that receives the most interest from companies operating overseas – and rightly so, as it has explicit extraterritorial application and has resulted in very large fines. This time, however, prosecutors did not bring the charges under the FCPA, as the conduct at issue involved commercial bribery between private parties, not bribery of foreign government officials (although note that commercial bribes can still run afoul of the FCPA's accounting provisions). The new opinion from the Second Circuit (the court with federal appellate jurisdiction over the district courts in Connecticut, New York and Vermont) makes clear that, under certain circumstances, the US can prosecute foreign persons for foreign commercial bribery schemes under the US honest services wire fraud statute. 
• Local law allowing commercial bribery not a defense under the honest services wire fraud statute. Napout (former president of Paraguay’s national football federation) and Marin (a former head of the Brazilian national football federation) tried (and failed) to argue that the trial court should have allowed them to introduce evidence that commercial bribery is lawful in their home jurisdictions, in order to show lack of fraudulent intent. The Second Circuit clarified that local law is admissible only in narrow circumstances.  

In more detail

Below, we provide more detail on the two key takeaways above and guidance on what APAC companies should do following this recent decision. 

Honest Services Wire Fraud

To prove honest services wire fraud under the relevant statutes, the prosecution must show, among other things, that there was a scheme which was intended to defraud by denying others of “the intangible right of honest services” using the US mail or wire services. 

Napout and Marin argued that their convictions were based upon impermissible extraterritorial application of the statutes because their scheme was carried out almost entirely outside of the US.  

The Second Circuit rejected this argument on the grounds that the case involved domestic application of the statute. Applying precedent related to civil actions under the Racketeer Influenced and Corrupt Organizations Act (RICO), the Second Circuit held that the key issues were whether:

• the use of US wire services in furtherance of the scheme to defraud occurred in the US (not whether the scheme itself occurred in the US); and
• the US wire transfers were “essential, rather than merely incidental” to the scheme to defraud.

Napout received bribes that were often in US dollar notes from a US bank account, as well as luxury items paid for in USD. In total, USD 2.5 million of the USD 3.3 million Napout received were paid for in cash in USD generated by wire transfers originating in the US.

Marin frequently received bribe payments via his New York bank account. He also used a debit card connected to his New York bank account to purchase USD 50,000 worth of jewelry and USD 10,000 worth of clothes from US stores. In total, USD 2.4 million of the USD 3.3 million Marin received were via his New York bank account. 

In light of the above, the Court determined that the use of US wire services was “integral” to the transmission of the bribes to Napout and Marin and that the US wire transmissions were “central” to the alleged schemes because they provided a “key means of paying those bribes.” 

Relevance of Local Law 

Napout and Marin also argued that the District Court was wrong in precluding them from introducing evidence that commercial bribery was legal in their home countries in order to prove lack of fraudulent intent (or bad faith), a necessary element of the offense. (Note that this is different to the “local law defense”, which is an affirmative defense under the FCPA.)

The Court explained that whether Napout and Marin had acted with fraudulent intent (or bad faith) turned on whether they understood that by accepting bribes they were violating FIFA and CONMEBOL's codes of ethics (which clearly prohibited commercial bribery). Local laws are only relevant to the extent that Napout and Marin could prove that they believed that their local laws permitted commercial bribery and that their organizations' codes of ethics provided identical obligations to those provided under their local laws. Since neither Napout nor Marin had put forth any evidence of such belief, local law evidence carried "extremely low probative value" and admitting such evidence would only risk misleading the jury.  

As Baker has previously overviewed (although note that this is a rapidly evolving area of law and we recommend checking with attorneys familiar with the current local law of each jurisdiction as applicable), in several APAC jurisdictions commercial bribery is not unlawful (or legal under certain circumstances). For example:

• Commercial (private-to-private) bribery is not per se illegal under Hong Kong’s Prevention of Bribery Ordinance (POBO) provided the parties know about it.  It is only where there is an element of secrecy that violates the agent-principal relationship that it becomes an offense (and even then, it can be forgiven through consent). 
• There is no specific offense prohibiting private sector bribery in Thailand, although acts of commercial bribery may constitute other offenses in specific circumstances. For example, hiding an improper payment by falsifying accounting records may constitute accounting fraud under the Accounting Act.
• There is no overarching prohibition against private sector bribery in Japan. However, Article 967 of the Companies Act broadly prohibits company directors and other senior officers of a company from soliciting or accepting any improper benefits in response to a wrongful request to perform (or not perform) their duties in a certain way.

Accordingly, companies and individuals should take note that – should there be a US nexus such as wire transfers through a US bank – there is a risk that US prosecutors may prosecute them for foreign commercial bribery schemes even if the conduct is not unlawful locally. This also highlights the benefit of broad, best-practice global policies that prohibit improper conduct at the highest level. We regularly work with companies to develop such best practice policies that meet the requirements of jurisdictions globally.