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DOJ Files Brief In Another Second Circuit Appeal In The Hoskins Matter

Why?

That was the question posed in this March [1] when the DOJ filed a notice of appeal to the Second Circuit of Judge Janet Bond Arterton’s February 26th grant of Lawrence Hoskins’s motion for acquittal on the seven FCPA charges he was convicted of by the jury. (See here [2] for the prior post. As noted in the post, Judge Arterton denied Hoskin’s motion for acquittal on the five money laundering charges he was convicted of by the jury).

As highlighted in this post [3], thereafter Judge Arterton significantly rejected the DOJ’s 7-9 year sentencing recommendation on the money laundering charges and sentenced Hoskins to approximately one year in federal prison. Even if the Second Circuit would overturn Judge Arterton’s acquittal (a process that would likely take a few years given that the last Second Circuit appeal in Hoskins matter took approximately two years), Judge Arterton already ruled on February 26th that Hoskins’s motion for a new trial was conditionally granted if her judgment of acquittal was later vacated or reversed on appeal.

Nevertheless, the DOJ is plowing ahead with its appeal as it filed this brief [4] earlier this week.

As framed by the DOJ, the issue on appeal is as follows:

“Whether, viewing the evidence in a light most favorable to the guilty verdict, a rational jury could have found that the defendant, a senior executive in a corporate support function of multinational holding company Alstom S.A., was an agent of a Connecticut-based Alstom business, Alstom Power Inc. (“API”), in the course of his assisting API to secure a power plant contract in Indonesia, including by hiring consultants to funnel bribes to Indonesian officials, where the defendant repeatedly followed API’s instructions and API was in charge of all facets of the project.”

As stated by the DOJ:

“For three years, Lawrence Hoskins (“Hoskins”) assisted Connecticut-based Alstom Power, Inc. (“API”) in its efforts to secure a contract to build a power plant in Indonesia by bribing Indonesian government officials who had influence over who won the contract. Hoskins worked for “Alstom International Network,” a support function within the Alstom group of companies, and was mandated to assist Alstom businesses, including API, to obtain work. Among other responsibilities, Hoskins helped API identify and negotiate with consultants who would pass the bribes to officials. Ultimately API won the contract, and thanked Hoskins for his support. Hoskins left Alstom shortly thereafter, but the bribe payments he helped negotiate continued for years afterwards.

A jury convicted Hoskins of Foreign Corrupt Practices Act (“FCPA”) conspiracy and substantive charges and money laundering conspiracy and substantive charges. However, the district court granted a motion for acquittal, and conditionally granted a new trial, on the FCPA charges because it concluded that the government had failed to prove Hoskins was an “agent” of domestic concern API, as required under United States v. Hoskins, 902 F.3d 69 (2d Cir. 2018), decided by interlocutory appeal in this case. In particular, the district court found that there was insufficient evidence of interim control by API over Hoskins’s activities on its behalf. The district court then, relying in part on those FCPA acquittals, sentenced the defendant to a far-below guidelines sentence of 15 months’ imprisonment.

As set forth below, the evidence was sufficient to prove API’s interim control over Hoskins’s activities on its behalf, based on extensive evidence of Hoskins seeking approval from API for his actions, Hoskins acceding to API’s instructions, API’s control over the Tarahan Project and the hiring of consultants, and Hoskins’s support role within Alstom. The district court’s Rule 29 order substituted its own choice of inferences for that of the jury, misapplied the law of this Court and the Supreme Court, and relied on formal badges of control inconsistent with the highly factual nature of an agency inquiry. The district court’s conditional new trial order was based on similarly flawed analysis, usurped the role of the jury, and provided no reason why the guilty verdicts were a miscarriage of justice. This Court should reverse the district court and reinstate the jury verdict in its entirety.

[5]

Elsewhere, the DOJ argues:

“The district court’s order of acquittal on Counts 1-7 or, conditionally, a new trial, should be reversed and the convictions reinstated.

There was sufficient evidence for the jury to conclude that API controlled Hoskins’s undertaking on its behalf—his assistance in securing the Tarahan Project and particularly in helping API to retain consultants to funnel bribes to Indonesian officials—and therefore that Hoskins was API’s agent. First, the record was replete with examples of Hoskins complying with API’s instructions in support of its efforts to secure the Tarahan Project. Second, a rational jury could infer API’s control over Hoskins’s Tarahan-related activities on its behalf from the ample evidence of API’s control over the Tarahan Project and the hiring of consultants. Third, the jury could likewise infer API’s control over Hoskins’s support activities on Tarahan from the evidence of Hoskins’s role within the Alstom organization.

In the face of this ample evidence of an agency relationship, the district court and Hoskins’s contrary arguments are unavailing. First, the district court improperly substituted its own view of the evidence for that of the jury, and misapplied cases of this Court and the Supreme Court to suggest a narrower view of control than the law permits. Second, the district court dispensed with the fact-bound agency analysis required by this Court, and instead relied on a claimed lack of certain “typical” indicia of control (like the right to hire or fire). Third, contrary to Hoskins’s argument below, Hoskins’s limited approval authority over certain aspects of the consultancy agreements did not undermine API’s control.

Finally, the district court abused its discretion in conditionally granting a new trial because it usurped the role of the jury in doing so and provided no reason why the verdict was a miscarriage of justice. The district court simply disagreed with the verdict.”

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