The Use of the Travel Act to Prosecute Foreign Commercial Bribery

The Carson case, which is not scheduled to go to trial until mid-2012, has already featured several challenges to the U.S. government's prosecution of foreign bribery. The Travel Act motion comes on the heels of the defendants' objection to the government's interpretation of the term “foreign official” in the FCPA. Previously, the district court had rejected the defendants challenge based on the definition of “foreign official” that asserted that payments to employees of state instrumentalities that do not perform traditional government functions are not encompassed by the FCPA, and that specific individuals employed by a Mexican state-owned public utility Comisi'n Federal de Electricidad did not fall within the parameters of this definition. See Sean Hecker, Philip Rohlik & Michael A. Janson, Carson Ruling on Defendants' Challenge to the DOJ's Definition of “Foreign Official”: A Fact-Based Approach, FCPA Update, Vol. 2, No. 10 (May 2011). For further coverage on Carson, see Sean Hecker, Bruce E. Yannett & Michael A. Janson, Defendants Contest DOJ's Definition of “Foreign Official,” FCPA Update, Vol. 2, No. 9 (Apr. 2011).

Subsequent to that ruling, in preparing to formulate jury instructions for the upcoming trials, Judge James V. Selna posed the question whether a conviction under the FCPA requires the defendant to have known that the bribe recipient was a foreign official. Both parties answered that question affirmatively, although the government contended that it should not have to prove that the defendant was aware of the definition of foreign official under the FCPA or the factors that constitute a government instrumentality. See United States v. Carson, No. 8:09-cr-00077-JVS, Government's Supplemental Brief Regarding Jury Instructions (C.D. Cal. Sept. 26, 2011).