For purposes of FCPA compliance, attorneys, international attorneys, in-house counsel, and others providing legal advice, the anti-bribery provisions differ from most other fraud statutes in that they require that the intent be corrupt. This requirement or element of the offense is, in many instances, the critical factor in determining whether a violation may have occurred.
“Corrupt intent” is defined as “having an improper motive or purpose.” The legislative history of the anti-bribery provisions makes clear that, like the domestic bribery statute, the prohibited conduct occurs only when a payment or offer of payment is made to induce the intended beneficiary to in some way misuse his or her official position.
“Corruptly” as used in the anti-bribery provisions signifies “a bad or wrongful purpose and an intent to influence a foreign official to misuse his official position.” “[A] person acts ‘corruptly’ if he or she acts with a ‘bad purpose’.” The thing of value must be given or offered with the intent to influence as opposed to be simply given whether or not the public official carries out his or her official duties.
“Corrupt intent” as used within the context of the anti-bribery provisions derives from the domestic bribery statute. In the domestic context, “corrupt intent” requires a higher degree of intent than that required for violating the provisions prohibiting gratuities to public officials. It “incorporat[es] a concept of the bribe being the prime mover or producer of the official act.” It is this element of quid pro quo that distinguishes the heightened criminal intent requisite under the bribery sections of the statute from the simple mens rea required for violations of the gratuity sections of the domestic bribery statute.
United States v. Kozeny, 582 F. Supp. 2d 535, 541 (S.D.N.Y. 2008). Id. (citing S. Rep. No. 114, 9th Cong., 1st Sess. 10 (1977), reprinted in 1977 U.S.C.C.A.N. 4098). S.Rep. No. 114 provides:
The word “corruptly’ is used in order to make clear that the offer, payment, promise, or gift, must be intended to induce the recipient to misuse his official position in order to wrongfully direct business to the payor or his client, or to obtain preferential legislation or a favorable regulation. The word “corruptly” connotes an evil motive or purpose, an intent to wrong-fully influence the recipient. It does not require that the act be fully consummated, or succeed in producing the desired outcome.18 U.S.C. § 201 (2012). Stichting Ter Behartiging Van de Velangen Van Ouddaandeelhouders In Het Kapitaal Van Saybolt Int’l B.V. v. Schreiber, 327 F.3d 173, 183 (2d Cir. 2003). As explained inUnited States v. Liebo, 923 F. 2d 1308, 1312 (8th Cir. 1991), ‘[a]n act is ‘corruptly’ done if done voluntarily and intentionally, and with a bad purpose of accomplishing either an unlawful end or result, or a lawful end or result by some unlawful method or means. The term ‘corruptly’ is intended to connote that the offer, payment, and promise was intended to induce the recipient to misuse his official position.” Cf. Bryan v. United States, 524 U.S. 184, 191, 118 S. Ct. 1939, 141 L. Ed. 2d 197 (1998) (approving a similar definitions of “willful”).
Schrieber, 327 F.3d at 182 (citing United States v. McElroy, 910 F.2d 1016, 1026 (2d Cir. 1990)).United States v. Strand, 574 F.2d 993, 996 (9th Cir. 1978) (distinguishing between intent required for bribery as opposed to an illegal gratuity in domestic bribery statute).
Schrieber, 327 F.3d at 184.United States v. Hsieh Hui Mei Chen, 754 F.2d 817 (9th Cir.), cert. denied, 471 U.S. 1139, 105 S. Ct. 2684, 86 L. Ed. 2d 701 (1985). United States v. Brewster, 506 F.2d 62, 82 (1974).
See id., 506 F.2d at 72; United States v. Alessio, 528 F.2d 1079, 1082 (9th Cir.), cert. denied, 426 U.S. 948, 96 S. Ct. 3167, 49 L. Ed. 2d 1184 (1976).