## Facts

- A federal grand jury returned a one-count indictment charging four defendants with conspiracy, under 18 U.S.C. § 371, to violate the Foreign Corrupt Practices Act (FCPA), 15 U.S.C. §§ 78dd-1, 78dd-2.
- Two defendants were U.S. citizens employed by a U.S. company alleged to be a “domestic concern” covered by the FCPA.
- The indictment alleged the U.S. defendants paid a $50,000 bribe to two Canadian officials to secure acceptance of a bid to provide buses to a Canadian provincial government.
- The government conceded the FCPA criminalizes bribery by covered U.S. persons but does not criminalize a foreign official’s receipt of the bribe.
- The Canadian officials moved to dismiss the indictment as to them on the ground that, because they could not be charged under the FCPA itself, they could not be charged with conspiring to violate it.

## Issues

1. Whether foreign officials whom Congress did not make liable under the FCPA for receiving bribes may nonetheless be prosecuted under 18 U.S.C. § 371 for conspiring to violate the FCPA.

## Decision

- The court granted the Canadian officials’ motions to dismiss.
- The court held that foreign officials who are not subject to substantive FCPA liability for receiving bribes cannot be prosecuted for conspiracy to violate the FCPA under 18 U.S.C. § 371.
- The indictment remained as to the U.S. defendants.

## Legal Principles

- Where Congress, by statutory design, excludes a class of participants from substantive criminal liability, the government may not use the general conspiracy statute to impose liability on that excluded class. (Gebardi v. United States principle.)
- Legislative intent controls the permissible reach of conspiracy charges tied to a substantive offense; conspiracy cannot be used to expand criminal liability beyond the persons Congress chose to punish.
- The FCPA targets bribe payers within specified categories (including domestic concerns) and does not criminalize a foreign official’s mere receipt of a bribe; that exclusion bars § 371 conspiracy charges against the foreign officials based on the same conduct.

## Conclusion

The court dismissed the conspiracy count against the foreign officials because Congress’s choice not to criminalize foreign officials’ receipt of bribes under the FCPA could not be circumvented through prosecution under the general conspiracy statute.


United States v. Blondek, 741 F. Supp. 116 (N.D. Tex. 1990)