Abogacía | 21.07.2020

U.S. Court Expands Jurisdiction to Prosecute Overseas Bribery: Important New York federal appellate decision in FIFA soccer corruption case

What is the scope of the United States’ authority to prosecute overseas bribery?  Until recently, the answer to that question depended on a U.S. statute that receives a lot of global attention, the Foreign Corrupt Practices Act (“FCPA”).  But the prosecution of two South American FIFA soccer league employees under a different statute, known as the “honest services fraud” statute, suggests that U.S. prosecutors’ authority in this area may be broader than was thought.

The FCPA makes it a federal crime to offer or pay a bribe to a foreign government official.  The statute applies to any company headquartered or with its principal place of business in the United States, and any employee of such company.  But the FCPA makes a U.S. crime of only one side of the transaction—the bribe payor’s conduct, not that of the foreign official who receives the bribe.  This limitation reflects a decision by Congress not to allow prosecution of foreign officials in the United States based on foreign bribes. 

The recent FIFA case may erase this limitation.  It arose from prosecution of two soccer federation employees from Brazil and Paraguay for accepting bribes in connection with broadcasting rights for soccer tournaments.  The U.S. statute the prosecutors relied upon was not the FCPA but rather the “honest services” wire fraud statute.  This statute makes it a crime to use interstate “wires” (like telephone or internet lines)  in a scheme to deprive an organization of the honest services of its employees through bribery.  The government argued that U.S. bank wire transfers related to the foreign bribe payments violated the statute.  The jury convicted two of the soccer federation employees, and an appellate court in New York recently upheld the convictions.

That decision opens up a new legal theory for prosecution in the United States of foreign bribery that may go well beyond the FCPA.  It also leaves open important questions.  Will this new theory apply to foreign government officials in addition to private employees like the soccer federation defendants?  Or will courts apply the policy judgment reflected in the FCPA to bar prosecution of foreign officials?  What kinds of United States “wires” will suffice to provide jurisdiction?  Are emails routed through U.S. servers enough?  Interbank transfers to convert foreign payments into U.S. dollars?  Only time will tell how far this new prosecution theory will sweep.

By Jonathan Kravis
Munger, Tolles & Olson
Washington, DC