United States v. Hoskins

• Decision Date: 12 August 2022
• Docket Number: Docket Nos. 20-842,20-1061,20-1084,August Term, 2021
• Citation: 44 F.4th 140
• Parties: UNITED STATES of America, Plaintiff-Appellant-Cross-Appellee, v. Lawrence HOSKINS, Defendant-Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

44 F.4th 140

UNITED STATES of America, Plaintiff-Appellant-Cross-Appellee,

v.Lawrence HOSKINS, Defendant-Appellee-Cross-Appellant.¹

Docket Nos. 20-842

20-1061

20-1084

August Term, 2021

United States Court of Appeals, Second Circuit.

Argued: August 17, 2021

Decided: August 12, 2022

DAVID E. NOVICK, Assistant United States Attorney (David P. Burns, Acting Assistant Attorney General, Brian C. Rabbitt, Former Acting Assistant Attorney General, Daniel S. Kahn, Senior Deputy Chief, Fraud Section, United States Department of Justice, Lorinda I. Laryea, Assistant Chief, Fraud Section, United States Department of Justice, Sandra S. Glover, Assistant United States Attorney, on the brief), for John H. Durham, United States Attorney, District of Connecticut, New Haven, CT, for Plaintiff-Appellant—Cross-Appellee.

CHRISTOPHER J. MORVILLO, Clifford Chance US LLP, (Daniel S. Silver, Celeste L.M. Koeleveld, Benjamin Peacock, on the brief), New York, NY, for Defendant-Appellee-Cross-Appellant.

Frederick T. Davis, International Academy of Financial Crime Litigators, New York, NY, amici curiae in support of Defendant-Appellee-Cross-Appellant.

Richard M. Strassberg (Lindsay A. Lewis, Vice Chair, Amicus Curiae Committee of the National Association of Criminal Defense Lawyers, James D. Gatta, Andrew Kim, Emily M. Notini, Daniel M. Gitner, Jeannie Rose Rubin, on the brief), New York, NY, amici curiae in support of Defendant-Appellee-Cross-Appellant.

Before: NEWMAN, POOLER, and LOHIER, Circuit Judges.

Judge Lohier concurs in part and dissents in part in a separate opinion.

POOLER, Circuit Judge:

The American subsidiary of Alstom Power, Inc. ("API"), a global power and transportation services company, hired two consultants to bribe Indonesian officials to help secure a $118 million power contract. Lawrence Hoskins, who worked in Paris for API's United Kingdom subsidiary, was allegedly responsible for approving the selection of the consultants and authorizing payments to them. For his role in the alleged bribery scheme, Hoskins was charged in an American court with (among other things) violating the Foreign Corrupt Practices Act ("FCPA"), which makes it unlawful for officers, directors, and agents "of a domestic concern" to use interstate commerce corruptly to bribe or attempt to bribe foreign officials. 15 U.S.C. § 78dd et seq.

Because Hoskins is not an American citizen, was not employed by the American subsidiary, and did not enter the United States while allegedly working on the scheme, he falls outside the category of persons directly covered by the FCPA. The government nevertheless contended that Hoskins was liable under the FCPA as a co-conspirator or accomplice to the American subsidiary's FCPA violation. Earlier in this litigation, we rejected that theory and held that a person could not be "guilty as an accomplice or a co-conspirator for an FCPA crime that he or she is incapable of committing as a principal[.]" United States v. Hoskins ("Hoskins I "), 902 F.3d 69, 76 (2d Cir. 2018). The government then revised its prosecutorial theory, arguing Hoskins's work for API's American subsidiary rendered him an "an agent" of "a domestic concern"—a category of persons squarely within the FCPA's terms. See 15 U.S.C. § 78dd-2. The jury convicted Hoskins of eleven counts, seven of which were FCPA violations, and four of which were money laundering charges, and acquitted him on one count of money laundering. Hoskins then moved for acquittal, arguing he was not an agent within the meaning of the FCPA. The district court granted that motion, see United States v. Hoskins ("Hoskins II" ), 3:12cr238 (JBA), 2020 WL 914302, at *7, *13 (D. Conn. Feb. 26, 2020), and the government brought this appeal.

Hoskins cross-appeals, arguing that (1) the district court erred in determining there was no violation of the Speedy Trial Act ("STA"), 18 U.S.C. §§ 3161(c)(1), 3162(a)(2), nor any violation of the Sixth Amendment during the lengthy course of trial; (2) the district court erred in giving jury instructions regarding withdrawal from the conspiracy and liability for setting a conspiracy in motion; and (3) the district court erred in denying his Rule 29 motion for judgment of acquittal based on faulty jury instructions regarding venue in the District of Connecticut.

We affirm, and hold that the United States District Court for the District of Connecticut (Arterton, J. ) properly acquitted Hoskins under Rule 29 because there was no agency or employee relationship between Hoskins and API. We also affirm on the cross-appeal, finding no error in either the district court's speedy trial analysis or its jury instructions.

BACKGROUND

I. API, Hoskins, and the Tarahan Project

Alstom S.A. is a global corporation headquartered in France that provides power and transportation services. Hoskins I , 902 F.3d at 72. Alstom has a United States-based subsidiary, API, located in Connecticut. As detailed in Hoskins I , the government alleged that API and other affiliates of Alstom retained two "consultants" who bribed Indonesian officials in order to secure a $118 million power contract with the Indonesian government for API and certain other partners, referred to as the "Tarahan Project." Id. Between November 2001 and August 2004, Hoskins was employed by Alstom's UK subsidiary, but was assigned to work in its French subsidiary, Alstom Resources Management S.A. Id. Specifically, Hoskins worked in the subsidiary's International Network ("IN") department, which was an internal-facing "support organization" that provided operational business units with support "on an as-needed basis." App'x at 287.

During the relevant time, Hoskins was the Area Senior Vice President for the Asia region in the IN. He performed various functions for and on behalf of Alstom subsidiaries, including API. One project in which Hoskins was involved was the Tarahan Project, which sought to secure a $118 million contract with the Indonesian government to build a coal-fired power plant. The bidding for the project was being conducted by Indonesia's state-owned and controlled electricity company, Perusahaan Listrik Negara ("PLN"). At the time, API was looking for a way to bribe PLN and other officials to ensure that PLN would give the contract to a consortium led by API. The other members of the consortium were a Japanese trading company, Marubeni Corporation, and Alstom's Indonesian subsidiary, Alstom Power Energy Systems Indonesia ("PTESI").

In 2002, Hoskins and his alleged API co-conspirators discussed hiring a consultant named Harsono, who had connections with Emir Moeis, a high-ranking member of the Indonesian Parliament. During these early stages of the project, Fred Pierucci, the head of boiler sales worldwide for Alstom, asked Hoskins to check in with two Alstom Indonesia leaders—Reza Moenaf, the Alstom "country president" for its Indonesia business who reported to Hoskins, and Eko Sulianto, who reported to Moenaf—regarding the "latest position on Tarahan." App'x at 860. Moenaf sent an email to Frederic Pierucci and David Rothschild, the regional sales manager for API who worked on the Tarahan Project, stating: "According to [Hoskins], [Pierucci] has already given his ‘go-ahead’ to proceed with the proposed consultant[.]" App'x at 862. In response to another of Moenaf's emails, Pierucci responded, "Please go ahead and finalise the consultancy agreement. Please send me the key data so that I can approve it officially." App'x at 863.

Before finalizing this arrangement, Rothschild expressed concern that Harsono was too close to Moeis, which would make the bribery too obvious, and instead suggested hiring another consultant named Pirooz Sharafi, who was based in Maryland, and his company, Pacific Resources, Inc. Sharafi had a close personal relationship with Moeis. Pierucci agreed with Rothschild's recommendation. Moenaf pushed back because he did not think that Sharafi had the requisite connections with PLN's Tarahan Project team. Nevertheless, API hired Sharafi and Pacific Resources, and Moenaf facilitated the execution of the consultancy agreement, committing 3 percent of the ultimate contract price to Sharafi if API won the bid.

By 2003, Moenaf's concerns came to fruition, when the PLN evaluation committee expressed dissatisfaction with Sharafi and questioned his commitment to bribing them. Larry Puckett, another API sales representative, told Pierucci via email that PLN's president was dissatisfied. Puckett explained that API's consortium partner, Marubeni, wanted API, "particularly ... Pierucci to agree to take ... immediate action" on finding a new consultant. App'x at 883.

Subsequently, Pierucci, Hoskins, William Pomponi, an API employee, and Marubeni representatives, among others, met in Jakarta, where Sharafi was informed that API needed to switch to a different arrangement with a different consultant who was in better standing with PLN: Azmin Aulia and his consulting company, PT Gajendra. They informed Sharafi that his commission would be cut to 1 percent, while Aulia would be retained at a 2 percent commission. On another occasion, Hoskins, Sharafi, and Thiessen met with Aulia to confirm his commitment to a 2 percent commission on his consulting agreement. Communications and testimony about this friction identified Pierucci as the ultimate decision-maker regarding the switch. Pierucci directed Hoskins to issue the revised consulting agreements, and Hoskins directed people in his department to execute them.

The plan encountered troubles when Aulia complained to Moenaf (who reported to Hoskins) that Aulia was concerned about paying bribes up front and not receiving any compensation for years. Hoskins proposed offering Aulia a better payment schedule and asked Pierucci for the "all clear" before communicating the new terms to the consultants. App'x at 934-37. Once the agreements were finally in place, Pierucci thanked the team, commending Pomponi for "leading this negotiation" and Hoskins for "the local...