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Third Circuit Weighs in on the Extortion Defense to Bribery
Given that the legislative history of the Federal Corrupt Practices Act (FCPA) makes clear Congress's intent that the statute not apply to cases of “true extortion” (see S. Rep. No. 95-114, at 10'11 (1977), reprinted in 1977 U.S.C.C.A.N. 4098, 4108), it is perhaps surprising that so few FCPA defendants invoke an extortion defense. After all, it is often common in cases of foreign public corruption that the officials involved have demanded the corrupt payment to “get things done,” and have excluded those unprepared to pay a bribe from receiving a fair hearing on an application for a contract or some other required approval.
In other words, if, as we suspect, the minority of bribes are initiated by bribe-payers, why would an extortion defense not be the cornerstone of more FCPA defenses than it is presently?
In a recent decision in a domestic bribery case, the United States Court of Appeals for the Third Circuit, after canvassing the law relating to extortion as a defense to federal bribery charges, identified the principal reasons why extortion is so rarely raised, and even more rarely effective, as a defense.
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