## Facts

- Eagle Bus Company, a U.S. company, sought to sell buses to the provincial government of Saskatchewan, Canada.
- Two Eagle Bus employees and U.S. citizens allegedly paid a $50,000 bribe to Donald Castle and Darrell W. T. Lowry, who were Canadian government officials, to secure acceptance of Eagle Bus’s bid.
- A one-count federal indictment charged four defendants with conspiracy under 18 U.S.C. § 371 to violate the Foreign Corrupt Practices Act of 1977 (FCPA), 15 U.S.C. §§ 78dd-1, 78dd-2.
- It was undisputed the alleged bribe payment by the U.S. employees could constitute an FCPA violation and support a conspiracy charge.
- It was undisputed Castle and Lowry, as foreign officials, could not be charged with substantive FCPA violations because the FCPA does not criminalize a foreign official’s receipt of a bribe.
- Castle and Lowry moved to dismiss, arguing the government could not use § 371 to prosecute them for a conspiracy to commit an offense that Congress did not make applicable to foreign officials.
- The district court dismissed the indictment as to Castle and Lowry; the United States appealed.

## Issues

1. Whether foreign officials who are not subject to substantive criminal liability under the FCPA may nonetheless be prosecuted under 18 U.S.C. § 371 for conspiracy to violate the FCPA.

## Decision

- The Fifth Circuit affirmed the dismissal of the indictment as to Castle and Lowry.
- The court held foreign officials may not be prosecuted under 18 U.S.C. § 371 for conspiring to violate the FCPA.
- The court adopted the district court’s memorandum opinion as its rationale, with a limited correction regarding the scope of a legislative-history reference that did not alter the outcome.

## Legal Principles

- When Congress deliberately omits a class of persons from liability under a substantive criminal statute, the government generally may not use 18 U.S.C. § 371 to impose conspiracy liability on that excluded class for the same statutory offense.
- The FCPA criminalizes certain corrupt payments by U.S. issuers and domestic concerns but does not criminalize the receipt of a bribe by a foreign official; that allocation of liability reflects congressional choice.
- Ambiguous or minimal legislative-history references to “aiding and abetting” or “joint participation” do not, without more, establish congressional intent to impose conspiracy liability on foreign officials excluded from the statute’s substantive reach.

## Conclusion

The Fifth Circuit held that because Congress did not make foreign officials criminally liable under the FCPA for receiving bribes, the government could not circumvent that decision by charging foreign officials with conspiracy under § 371 to violate the FCPA, and it therefore affirmed dismissal of the indictment against Castle and Lowry.


United States v. Castle, 925 F.2d 831 (5th Cir. 1991)