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In the Courts

By ALM Staff | Law Journal Newsletters |

Successful Prosecution of FCPA Bribery Does Not Require Showing of Knowledge of FCPA's Specific Prohibitions

In United States v. Kay, No. 05-20604, 2007 WL 3088140 (5th Cir. Oct. 24, 2007), the Fifth Circuit held that the anti-bribery provisions of the Foreign Corrupt Practices Act ('FCPA') do not require proof that a defendant acted with knowledge of the FCPA's specific prohibitions. As charged in the indictment, the government had to prove in part that the defendants acted 'willfully' and 'corruptly.' 15 U.S.C. ' 78ff(c)(2)(A). The district court told the jury that 'corruptly' was an element of the offense and meant acting intentionally 'with a bad purpose or evil motive of accomplishing either an unlawful end or result, or a lawful end or result by some unlawful method or means.' The district court also defined 'knowingly' as acting voluntarily and intentionally. Id. It did not define the term 'willfully.'

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