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FIFA Decision Confirms Long Arm of Honest Services Fraud
The U.S. government's lead role in the prosecution of corruption within the Zurich, Switzerland-based Fédération Internationale de Football Association (FIFA) may be a paradigmatic example of U.S. law enforcement acting as the world's policeman, reaching out around the globe to prosecute wrongdoing with little apparent connection to the land of baseball, hot dogs and apple pie. Didn't the Supreme Court remind everyone just a few years ago that U.S. statutes are presumed only to apply domestically? If corruption is based on foreign executives violating their duties of loyalty to foreign private entities, how does that translate into a violation of U.S. criminal law? Does it matter that the conduct in which the foreign executive engaged — commercial bribery — may not be illegal under the law of the executive's home country?
The Second Circuit answers these questions in its recent decision in United States v. Napout, 963 F.3d 163 (2d Cir. 2020), affirming the convictions of Juan Angel Napout, the former president of Paraguay's national soccer federation, and Jose Maria Marin, the former head of the Brazilian national soccer federation. In doing so, the decision joins a long line of authority illustrating that as long as the scheme entails some use of the U.S. banking system, the Department of Justice can venture broadly indeed to prosecute foreign nationals under U.S. criminal law for conduct that appears predominantly foreign in locus and effect, with little regard for whether that conduct would violate the criminal laws of their home country.
Background on FIFA Prosecutions
After public allegations that senior FIFA officials demanded bribes in connection with the 2010 bidding process to be the host country for the 2018 and 2022 World Cup tournament, FIFA commissioned an internal investigation led by former Southern District of New York U.S. Attorney Michael Garcia. Garcia later resigned in protest after FIFA leadership released a summary he claimed to be inaccurate, rather than his 430-page investigation report.
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