## Facts

- Azerbaijan privatized its state oil company (SOCAR) through a voucher-and-auction system administered by a government committee.
- Foreign participants allegedly needed government-issued “options” to use vouchers in auctions.
- The government alleged that entities were formed to acquire a controlling interest in SOCAR and that U.S. investors entered agreements to obtain and exercise vouchers and options to acquire SOCAR shares.
- Hans Bodmer, a Swiss lawyer residing in Switzerland, allegedly advised and acted as agent for U.S. investors and related entities in structuring and executing the investment plan.
- The indictment alleged a scheme to bribe Azerbaijani officials to gain advantages in the privatization process, with payments allegedly routed through international accounts and involving wire transfers from the United States.
- Bodmer was indicted in the Southern District of New York for (1) conspiracy to violate the Foreign Corrupt Practices Act (FCPA) and (2) conspiracy to launder money.
- After arrest abroad and extradition, Bodmer moved pretrial to dismiss, arguing that the pre-1998 FCPA did not cover him and that the money-laundering conspiracy could not rest on an invalid FCPA predicate.

## Issues

1. Whether a foreign national who was not a “domestic concern” could be charged, for pre-1998 conduct, with conspiracy to violate 15 U.S.C. § 78dd-2, given the statute’s then-existing jurisdictional limits.
2. Whether conspiracy doctrine may be used to impose liability on a person outside the class of defendants Congress clearly reached under the substantive FCPA provision in effect at the time.
3. Whether applying the FCPA and related theories to largely foreign conduct satisfied fair-notice and non-retroactivity constraints.
4. Whether an FCPA conspiracy that is legally defective as to the defendant can serve as the “specified unlawful activity” predicate for a money-laundering conspiracy under 18 U.S.C. § 1956.

## Decision

- The court granted the motion to dismiss as to Bodmer on the FCPA conspiracy count.
- The court held that, as alleged, pre-1998 § 78dd-2 did not clearly reach a foreign national in Bodmer’s position and could not be extended to him through conspiracy.
- The court dismissed the money-laundering conspiracy count to the extent it depended on the FCPA conspiracy as the predicate “specified unlawful activity” as to Bodmer.

## Legal Principles

- Criminal statutes are construed to provide fair warning; liability may not be expanded through interpretation that effectively applies later-enacted jurisdictional expansions to earlier conduct.
- Where Congress has chosen not to include a class of persons within a criminal statute’s reach, the government generally may not use conspiracy charges to circumvent that legislative limitation.
- The 1998 amendments to the FCPA reflected an express expansion of jurisdiction over certain foreign nationals; that expansion could not be treated as implicit in the pre-amendment statute for purposes of prosecuting earlier conduct.
- A money-laundering conspiracy charge under 18 U.S.C. § 1956 that relies on a “specified unlawful activity” predicate cannot stand against a defendant when the alleged predicate offense is legally invalid as to that defendant.

## Conclusion

The court dismissed the FCPA conspiracy charge against a Swiss lawyer for pre-1998 conduct because the statute then in effect did not clearly cover his category of foreign conduct and conspiracy could not be used to extend the statute beyond congressional limits; it also dismissed the related money-laundering conspiracy to the extent it relied on the defective FCPA predicate.


United States v. Bodmer, 342 F. Supp. 2d 176 (S.D.N.Y. 2004)