In the Courts

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.'

In response to the defendant's arguments, the Fifth Circuit reasoned that 'willfully,' which was not defined in the statute, had three accepted common law definitions: 1) having knowledge of one's actions; 2) having knowledge that one's actions were generally unlawful; and 3) having knowledge that one's actions violated a specific statute. The Fifth Circuit held that the district court's jury instruction captured the first and second categories of 'willfully' and that the third category applied only to certain statutory violations involving complex statutes such as federal tax laws and therefore not the FCPA.