NO.

14-189
In the
Supreme Court of the United States
________________
JOEL ESQUENAZI AND CARLOS RODRIGUEZ,
PETITIONERS,
v.
UNITED STATES OF AMERICA,
RESPONDENT.
________________
On Petition for a Writ of Certiorari to
the United States Court of Appeals
for the Eleventh Circuit
________________
BRIEF OF AMICUS CURIAE
PROFESSOR MICHAEL J. KOEHLER
IN SUPPORT OF PETITIONERS
________________

RUSSELL G. RYAN
KING & SPALDING LLP
1700 Pennsylvania Ave., NW
Washington, DC 20006


BRANDT LEIBE
Counsel of Record
KING & SPALDING LLP
1100 Louisiana St.
Suite 4000
Houston, TX 77002
(713) 751-3200
bleibe@kslaw.com

Counsel for Amicus Curiae
September 17, 2014
i

TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF AMICUS CURIAE ............................. 1
INTRODUCTION AND
SUMMARY OF THE ARGUMENT ..................... 2
REASONS FOR GRANTING THE PETITION .......... 6
I. Given how the FCPA is enforced, Question 1
is extraordinarily important, and further
judicial percolation is unlikely. ............................ 6
II. Contrary to the Eleventh Circuits opinion,
the FCPAs enacting legislative history
indicates that Congress did not intend the
term foreign official to include employees
of state-owned or state-controlled
enterprises. ......................................................... 11
III. Instead of considering the relevant enacting
FCPA legislative history, the Eleventh
Circuit supported its conclusion with a
flawed analysis of subsequent 1998
amendments to the FCPA. ................................. 16
IV. If Congress wants to include SOEs in the
FCPA, as it has in other laws passed before
and after the FCPA, or wants to align the
FCPA with the OECD Convention on the
foreign official issue, Congress is clearly
capable of doing just that. .................................. 21
CONCLUSION .......................................................... 25

ii

TABLE OF AUTHORITIES
Cases
Am. Textile Mfrs. Inst., Inc. v. Donovan,
452 U.S. 490 (1981) ................................................ 24
Bond v. United States,
134 S.Ct. 2077 (2013) ............................................. 21
Bruesewitz v. Wyeth LLC,
131 S. Ct. 1068 (2011) ............................................ 16
Duncan v. Walker,
533 U.S. 167 (2001) ................................................ 24
INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) ................................................ 16
Lamb v. Phillip Morris, Inc.,
915 F.2d 1024 (6th Cir. 1990) .................................. 8
McLean v. Intl Harvester Co.,
817 F.2d 1214 (5th Cir. 1987) .................................. 8
Medelln v. Texas,
552 U.S. 491 (2008) ................................................ 21
Russello v. United States,
464 U.S. 16 (1983) .................................................. 16
United States v. Craft,
535 U.S. 274 (2002) ................................................ 21
United States v. Kay,
359 F.3d 738 (5th Cir. 2004) .................................. 19
United States v. Price,
361 U.S. 304 (1960) ................................................ 17
Whitfield v. United States,
543 U.S. 209 (2005) ................................................ 22
iii

Statutes
15 U.S.C. 78dd-2 ........................................... 3, 11, 20
15 U.S.C. 78m ......................................................... 23
18 U.S.C. 1839 ........................................................ 23
22 U.S.C. 288 .......................................................... 18
28 U.S.C. 1603 ........................................................ 23
Bribery Act 2010, c. 23 (Eng.) ................................... 24
Corruption of Foreign Public Officials Act 1998,
c. 34 (Can.).............................................................. 24
Criminal Code Act 1995, c. 4 (Austl.) ....................... 25
Foreign Corrupt Practices Act of 1977,
Pub. L. No. 95-213, 91 Stat 1494 ........................... 15
International Anti-Bribery and Fair
Competition Act of 1998,
Pub. L. No. 105-366, 112 Stat. 3302 ...................... 18
Omnibus Trade and Competitiveness Act of 1988,
Pub. L. No. 100-418, 102 Stat. 1107 ...................... 17
Other Authorities
Breuer, Lanny A.,
Assistant Attorney General, Criminal Division,
Address to the Tenth Annual Pharmaceutical
Regulatory and Compliance Congress Best
Practices Forum (Nov. 12, 2009) ............................. 6
Decl. of Professor Michael J. Koehler in
Support of Defendants Motion to Dismiss
Counts One Through Ten of the Indictment,
United States v. Carson,
No. 8:09-cr-00077 (C.D. Cal. Feb. 21, 2011) ............ 2
iv

Dept of Justice, Press Release,
Assistant Attorney General Lanny A. Breuer
Speaks at the 24th National Conference
on the Foreign Corrupt Practices Act
(Nov. 16, 2010) ......................................................... 6
Diamond, Phyllis,
More FCPA Cases in Pipeline, Brockmeyer
Says; Some Administrative (July 25, 2014) ............ 8
Examining Enforcement of the Foreign Corrupt
Practices Act: Hearing Before the Subcomm. on
Crime and Drugs,
United States Senate,
111th Cong., Second Session (Nov. 30, 2010) ......... 1
H.R. 15149 (Aug. 10, 1976) ....................................... 14
H.R. 3815 (Feb. 22, 1977) .......................................... 12
H.R. 7543 (June 1, 1977) ........................................... 14
H.R. Rept. No. 95-640 (Sept. 28, 1977) ..................... 12
Hearings Before the Subcomm. on Consumer
Protection and Finance,
House of Representatives,
95th Congress, First Session
(Apr. 20 & 21, 1977) ............................................... 12
Hearings Before the Subcomm. on Consumer
Protection,
House of Representatives,
94th Congress, Second Session
(Sept. 21 & 22, 1976) .............................................. 14
v

Hearings Before the Subcomm. on Finance and
Hazardous Materials,
House of Representatives,
105th Congress, Second Session
(Sept. 10, 1998) ...................................................... 19
Hearings Before the Subcomm. on International
Economic Policy,
House of Representatives,
94th Congress, First Session (June 5, July 17,
24, & 29, and Sept. 11, 18, & 30, 1975) ................. 13
Hearings Before the Subcomm. on Multinational
Corporations,
United States Senate,
94th Congress, First Session
(May 16 & 19, June 9 & 10, July 16 & 17,
and Sept. 12, 1975) ................................................ 13
Koehler, Michael J.,
A Focus On DOJ FCPA Individual Prosecutions
(Jan 20, 2014) ........................................................... 8
Koehler, Michael J.,
Disconnected Another Telecommunications
Company Settles An FCPA Enforcement Action
(Jan. 30, 2010) ........................................................ 10
Koehler, Michael J.,
Do Lanny Breuer And Robert Khuzami Actually
Read FCPA Enforcement Actions?
(June 30, 2010) ....................................................... 10
Koehler, Michael J.,
From Healthcare Providers To Customs Officials
To SOE Employees The Alleged Foreign
Officials Of 2013 (Jan. 13, 2014)............................ 7
vi

Koehler, Michael J.,
The Origins And Prominence Of A Theory
(Sept. 13, 2012) ........................................................ 9
Letter from American Bar Association to
Rep. John Murphy, Chairman of the House
Subcomm. on Consumer Protection and
Finance (Sept. 22, 1976),
Foreign Payments Disclosure Hearings ................ 15
Organization for Economic Cooperation and
Developments Convention on Combating
Bribery of Foreign Public Officials in
International Business Transactions,
Dec. 17, 1997, S. Treaty Doc. No. 105-43,
37 I.L.M. 1 (ratified Dec. 8, 1998,
entered into force Feb. 15, 1999) ..................... 19, 20
Report of the Securities and Exchange Commission,
Questionable and Illegal Corporate Payments
and Practices (May 12, 1976) ................................ 12
S. 305 (May 2, 1977) .................................................. 12
S. 3741 (Aug. 6, 1976) ................................................ 14
S. Rept. No. 95-114 (Dec. 7, 1977) ............................. 12
Scarboro, Cheryl J.,
Chief of the Foreign Corrupt Practices Act,
News Conference Announcing New SEC
Leaders in Enforcement Division Unit
(Jan. 13, 2010) .......................................................... 7


1

INTEREST OF AMICUS CURIAE
1

Professor Michael J. Koehler is a law professor
whose research, scholarship and teaching focus on
the Foreign Corrupt Practices Act (FCPA).
2
Among
other things, Professor Koehler has testified before
Congress on the FCPA. In 2010, the Chair of the
Senate Judiciary Committees Subcommittee on
Crime and Drugs asked Professor Koehler to provide
information concerning the Department of Justices
FCPA enforcement program. Examining
Enforcement of the Foreign Corrupt Practices Act:
Hearing Before the Subcomm. on Crime and Drugs,
United States Senate, 111th Cong., Second Session
(Nov. 30, 2010), available at http://www.
gpo.gov/fdsys/pkg/CHRG-111shrg66921/pdf/CHRG-11
1shrg66921.pdf.
Professor Koehler seeks to explain to this Court
why it should grant the Petition as to Question 1 by
providing information relevant to the FCPAs
legislative history and related topics.
3
Professor
Koehler has spent hundreds of hours personally
reviewing and analyzing thousands of pages of

1
Pursuant to Sup. Ct. R. 37.2(a), amicus timely notified the
parties of his intent to file this brief and received the consent of
both parties. No counsel for any party authored this brief in
whole or in part, and no person or entity, other than amicus, or
its counsel, made a monetary contribution intended to fund the
preparation or submission of this brief.
2
Professor Koehler is a faculty member of Southern Illinois
University School of Law. The views expressed herein are those
of Professor Koehler, and his institutional affiliation is provided
for identification purposes only.
3
This brief does not address Question 2 of the Petition.
2

legislative history regarding the enactment of the
FCPA and subsequent amendments. The end result
of this work, which is the most comprehensive
analysis of the FCPAs legislative history conducted,
was relied upon by Petitioners in the case below and
cited in the Petition.
4

INTRODUCTION AND
SUMMARY OF THE ARGUMENT
The Petition presents this Court, for the first
time in the FCPAs thirty-seven year history, with
the opportunity to construe a key element of a top-
priority federal criminal statute of significant
importance to all businesses and individuals engaged
in international commerce.
The issue presented in Question 1 of the Petition
is whether a state-owned or state-controlled
enterprise (SOE) can constitute an
instrumentality of a foreign government as that
term is used in the FCPA. If so, as the Court of
Appeals held, employees of SOEs could qualify as
foreign officials under the FCPAs anti-bribery
provisions such that anything of value offered or
provided to them to obtain or retain business could
violate the FCPAs criminal anti-bribery provisions.

4
See Decl. of Professor Michael J. Koehler in Support of
Defendants Motion to Dismiss Counts One Through Ten of the
Indictment, United States v. Carson, No. 8:09-cr-00077 (C.D.
Cal. Feb. 21, 2011) (Koehler Declaration). Amicus served as a
pro bono expert for the Petitioners in connection with the appeal
of their convictions to the Eleventh Circuit.
3

The FCPA defines a foreign official as any
officer or employee of a foreign government or any
department, agency, or instrumentality thereof, or of
a public international organization. 15 U.S.C.
78dd-2(h)(2) (emphasis added). The FCPAs
legislative history indicates that Congress did not
intend that statutory term to include employees of
SOEs. In the legislative process that ultimately
produced the FCPA, Congress specifically considered
competing bills that would have included employees
of SOEs as foreign officials yet rejected those
definitions in the version of the FCPA it enacted.
The proper scope and meaning of the foreign
official element of the FCPAs anti-bribery
provisions is an issue of extraordinary practical
significance as it affects all businesses and
individuals engaged in international commerce. The
FCPAs criminal anti-bribery provisions prohibit
certain business conduct with foreign officials, but
those prohibitions do not apply to conduct that does
not involve a foreign official. Thus, it would not
violate the FCPA to offer or provide something of
value to a private customer, but offering or providing
the same to a foreign official could be a crime.
Consequently, drawing the line between individuals
who could qualify as foreign officials and those who
could not is critically important in a wide range of
international business interactions.
An issue that has developed so little in the lower
courts would not ordinarily satisfy the criteria for
this Courts review. However, the way FCPA
enforcement actions are resolved makes it unlikely
that lower courts will often consider this issue in the
4

foreseeable future. The vast majority of FCPA
investigations are resolved through out-of-court
settlements including non-prosecution agreements
(NPAs), deferred prosecution agreements (DPAs),
and other administrative settlements not subject to
judicial scrutiny. As a result, courts rarely construe
the FCPA. The court below was the first Court of
Appeals to address this statutory issue since
Congress first enacted the FCPA thirty-seven years
ago. Given these dynamics, there is little reason to
believe that other federal appellate courts will
examine this issue in the foreseeable future. Yet the
Eleventh Circuits erroneous interpretation of the
statute is likely to affect numerous future FCPA
enforcement actions negotiated and resolved in the
absence of judicial scrutiny and in the shadow of
scant precedent interpreting the FCPA and thus
the conduct of countless businesses and individuals
subject to the FCPA.
The Eleventh Circuits interpretation of the
statute was erroneous. The decision below failed to
consider the enacting legislative history of the
provisions it construed. It instead mistakenly relied
on amendments enacted more than twenty years
later and mistakenly concluded that those
amendments were intended to bring the FCPA into
strict conformity with the OECD.
The Eleventh Circuits express reliance on
amendments to the FCPA in 1998 is flawed in at
least two respects. First, the 1998 amendments to
the FCPA are, on their face, irrelevant to the
statutory-interpretation question at issue in this case
because those amendments did not modify the
5

portion of the foreign official definition in question
here. Second, contrary to the Eleventh Circuits
conclusion, the 1998 amendments did not fully
conform the FCPA to the OECD Convention.
Because they did not conform the FCPA to the OECD
Convention, the amendments the Eleventh Circuit
relied upon do not support the conclusion that the
FCPAs foreign official element includes employees
of SOEs.
Amending a key element of a top-priority federal
criminal statute of such significance to international
commerce is not properly accomplished through a
process of judicial inferences about the supposed
purpose of subsequent, unrelated statutory
amendments. Rather, actual legislative action is
required to amend the FCPA. If Congress wished to
include employees of SOEs in the statutory definition
of foreign official, it easily could have done so
when enacting the FCPA in 1977, when amending
the FCPA in 1998, or on any other occasion.
Congress has expressly included employees of SOEs
in similar statutory definitions contained in other
legislation passed both before and after the
enactment of the FCPA. Similarly, the legislative
bodies of several signatory countries to the OECD
Convention have taken specific legislative action to
include SOEs and related concepts in their
comparable anti-corruption legislation.
6

REASONS FOR GRANTING THE PETITION
I. Given how the FCPA is enforced, Question
1 is extraordinarily important, and further
judicial percolation is unlikely.
The Department of Justice (DOJ) has declared
FCPA criminal prosecution to be among its top
priorities out of the approximately nine hundred
federal statutes that its Criminal Division enforces.
Lanny A. Breuer, Assistant Attorney General,
Criminal Division, Address to the Tenth Annual
Pharmaceutical Regulatory and Compliance Congress
Best Practices Forum at 2 (Nov. 12, 2009), available
at http://www.justice.gov/criminal/pr/speeches-test
imony/documents/11-12-09breuer-pharmaspeech.pdf.
Indeed, DOJ has a specific FCPA Unit, and in 2010
declared a new era of FCPA enforcement,
emphasizing that we are here to stay. Dept of
Justice, Press Release, Assistant Attorney General
Lanny A. Breuer Speaks at the 24th National
Conference on the Foreign Corrupt Practices Act (Nov.
16, 2010), available at http://www.justice.gov/crimina
l/pr/speeches/2010/crm-speech-101116.html.
Although the Securities and Exchange
Commission (SEC) is not a litigant in this case, the
SEC also enforces the FCPA as to publicly traded
companies and associated persons. The SEC has
created a specialized FCPA Unit (one of only five
specialized units at the SEC) and declared the FCPA
to be a vital part of its overall enforcement
program. Cheryl J. Scarboro, Chief of the Foreign
Corrupt Practices Act, News Conference Announcing
New SEC Leaders in Enforcement Division Unit (Jan.
7

13, 2010), available at http://www.sec.gov/news/speec
h/2010/spch011310newsconf.htm.
5

Despite this declared new era of FCPA
enforcement during which many dozens of
criminal and civil law-enforcement cases have been
resolved, often with fines and other sanctions in the
tens or hundreds of millions of dollars remarkably
few cases have proceeded through ordinary judicial
processes. There have been few indictments and
even fewer trials. Instead, nearly all corporate FCPA
enforcement actions have been resolved through out-
of-court settlements, such as NPAs, DPAs and civil
consent decrees. Many of these settled enforcement
cases were predicated on the same enforcement
theory at issue in the Petition i.e., that employees
of SOEs qualify as foreign officials under the
FCPA.
6

In addition to the prevailing use of out-of-court
settlements to resolve FCPA enforcement actions, the
SEC has recently signaled an intention to shunt
more of its civil FCPA enforcement actions into non-

5
Because Petitioners were employed by a private company, the
SEC lacked jurisdiction in this case.
6
As noted by Petitioners, who cite amicuss research, in 2013
55% of the corporate enforcement actions involved employees of
alleged SOEs; in 2012, 42% of such actions involved employees
of alleged SOEs; and in 2011, 81% of such enforcement actions
involved employees of alleged SOEs. Michael J. Koehler, From
Healthcare Providers To Customs Officials To SOE Employees
The Alleged Foreign Officials Of 2013 (Jan. 13, 2014),
available at http://www.fcpaprofessor.com/from-healthcare-
providers-to-customs-officials-to-soe-employees-the-alleged-forei
gn-officials-of-2013.
8

judicial administrative proceedings. According to the
SECs FCPA Unit Chief, administrative resolution of
FCPA investigations will absolutely continue in the
future, further reducing the likelihood of judicial
involvement in FCPA enforcement actions. Phyllis
Diamond, More FCPA Cases in Pipeline, Brockmeyer
Says; Some Administrative (July 25, 2014), available
at http://www.bna.com/sec-enforcement-officer-n1717
9892900/.
Furthermore, corporate FCPA enforcement
actions resolved through out-of-court settlements or
the SECs administrative process usually do not
result in any related enforcement actions against
individuals, who often have greater motivation to
litigate than to settle. Since 2008, approximately
75% of DOJ corporate FCPA enforcement actions
have not involved any related individual
prosecutions. Michael J. Koehler, A Focus On DOJ
FCPA Individual Prosecutions (Jan 20, 2014),
available at http://www.fcpaprofessor.com/a-focus-on-
doj-fcpa-individual-prosecutions-2. In the same
period, approximately 85% of SEC corporate FCPA
enforcement actions have not resulted in enforcement
actions against individuals. Id.
Moreover, courts do not confront substantive
FCPA issues in private litigation because, unlike
other federal statutes, there is no private right of
action under the FCPA. See McLean v. Intl
Harvester Co., 817 F.2d 1214 (5th Cir. 1987); Lamb v.
Phillip Morris, Inc., 915 F.2d 1024 (6th Cir. 1990).
Therefore, DOJ and SEC enforcement actions
present the only conceivable opportunities for judicial
examination of the FCPA.
9

As a result of the above enforcement dynamics,
courts generally do not pass upon the interpretations
of the FCPA or the governments legal theories that
undergird the vast majority of FCPA enforcement.
7

While this case is an exception to that rule, it also
illustrates just how rare it is for a federal court to
encounter an FCPA issue. Indeed, this Petition is
the first in the FCPAs thirty-seven year history to
present this issue of statutory construction for the
Courts consideration.
The specific statutory language at issue in this
case has always appeared in the FCPA since its
enactment in 1977, but the decision below is the first
appellate decision to interpret it. The absence of a
current split in the lower courts is, therefore,
unremarkable and does not render the question
presented insignificant or suggest it should await
further percolation. Indeed, the FCPA enforcement
dynamics described above make additional judicial
opinions on this subject quite unlikely. Assuming
these dynamics persist, it is difficult to envision how

7
An instructive example relevant to the foreign official issue
involves DOJ corporate FCPA enforcement actions against
pharmaceutical and other health care related companies based
on the theory that employees of foreign health systems (such as
physicians, nurses, and lab personnel) are foreign officials
under the FCPA. Despite resolving more than ten corporate
FCPA enforcement actions based on this theory, DOJ has never
brought any individual enforcement action in connection with
these corporate actions, and the theory has never been tested in
a contested litigation. Michael J. Koehler, The Origins And
Prominence Of A Theory (Sept. 13, 2012), available at http://
www.fcpaprofessor.com/the-origins-and-prominence-of-a-theory.
10

a split in the lower courts would develop as to any
substantive FCPA issue in the foreseeable future.
The issue presented in the Petition is
extraordinarily significant to all businesses and
individuals engaged in international commerce. The
meaning of instrumentality and foreign official
determine the scope of the FCPA and dictate how
corporate compliance programs approach business
outside the United States. As enforcement
authorities have construed the FCPA, payments
prohibited by the statute include not only envelopes
of cash passed under the table and suitcases of
money but also ordinary business courtesies. Indeed,
FCPA enforcement actions have faulted companies
for providing to foreign officials such mundane
courtesies as flowers, cigarettes, bottles of wine, and
tea sets. See, e.g., Michael J. Koehler, Disconnected
Another Telecommunications Company Settles An
FCPA Enforcement Action (Jan. 30, 2010), available
at http://www.fcpaprofessor.com/disconnected-anothe
r-telecommunications-company-settles-an-fcpa-enforc
ement-action; Michael J. Koehler, Do Lanny Breuer
And Robert Khuzami Actually Read FCPA
Enforcement Actions? (June 30, 2010), available at
http://www.fcpaprofessor.com/do-lanny-breuer-and-ro
bertkhuzami-actually-read-fcpa-enforcement-actions.
Under these circumstances, it is critically important
for companies and individuals to understand which
rules apply to which people.
11

II. Contrary to the Eleventh Circuits opinion,
the FCPAs enacting legislative history
indicates that Congress did not intend the
term foreign official to include employees
of state-owned or state-controlled
enterprises.
At its relevant core, the FCPA criminalizes
offering or providing anything of value to a foreign
official in order to obtain or retain business. 15
U.S.C. 78dd-2(a). The statute defines foreign
official, in pertinent part, as:
any officer or employee of a foreign
government or any department, agency, or
instrumentality thereof, or of a public
international organization . . .
15 U.S.C. 78dd-2(h)(2) (emphasis added).
The statute does not define instrumentality.
The issue presented in Question 1 of the Petition
is whether an SOE in this case a
telecommunications company can qualify as an
instrumentality of a foreign government and thus
whether its employees can be foreign officials under
the FCPAs anti-bribery provisions. The FCPAs
extensive enacting legislative history indicates that
Congress did not intend the foreign official element
to include employees of SOEs.
Enacted in 1977, the FCPA was the end result of
more than two years of investigation and
consideration by both the 94th and 95th Congresses
of the so-called foreign corporate payments
problem. Between June 1975 and September 1977,
12

approximately twenty different bills were introduced
in the Senate or House to address the foreign
payments issue, and Congress held numerous
hearings during which representatives from DOJ,
SEC, State Department, Defense Department,
Commerce Department, and Treasury Department
testified. See Koehler Declaration (summarizing the
bills and hearing which led to enactment of the
FCPA).
During its investigation and consideration of the
foreign payments issue, Congress learned of a wide
variety of payments to a broad range of recipients.
See, e.g., Report of the Securities and Exchange
Commission, Questionable and Illegal Corporate
Payments and Practices (May 12, 1976); Hearings
Before the Subcomm. on Consumer Protection and
Finance, House of Representatives, 95th Congress,
First Session (Apr. 20 & 21, 1977). But instead of
enacting a general anti-bribery statute that would
have applied to payments made to both public
officials and private parties, Congress chose to enact
a more limited law and concluded that the FCPA
would not reach all corrupt payments overseas.
See, e.g., S. Rept. No. 95-114, at 11 (Dec. 7, 1977) as
to S. 305 (May 2, 1977); H.R. Rept. No. 95-640 (Sept.
28, 1977) as to H.R. 3815 (Feb. 22, 1977).
Congress used the foreign official element of
the FCPA to limit the reach of the statute: If an
alleged payment scheme does not involve a foreign
official, no violation of the FCPAs anti-bribery
provisions can occur.
Statements, events, and information in the
legislative history indicate Congresss intent to
13

exclude employees of SOEs from the definition of
foreign official.
The payments that prompted Congressional
scrutiny principally involved traditional foreign
government officials such as the Prime Minister of
Japan; the Inspector General of the Dutch Armed
Forces; the husband of the Queen of the Netherlands;
the President of Honduras; the President of Gabon;
and Saudi Arabian military generals.
8
See, e.g.,
Hearings Before the Subcomm. on Multinational
Corporations, United States Senate, 94th Congress,
First Session (May 16 & 19; June 9 & 10; July 16 &
17; and Sept. 12, 1975) (Political Contributions to
Foreign Governments Hearings); Hearings Before the
Subcomm. on International Economic Policy, House
of Representatives, 94th Congress, First Session
(June 5, July 17, 24, & 29, Sept. 11, 18, & 30, 1975).
It was these types of payments and the foreign
policy issues they created that motivated Congress
to pass the FCPA in 1977. See, e.g., Political
Contributions to Foreign Governments Hearings at 1
(This subcommittee is concerned with the foreign
policy consequences of these payments by U.S. based
multinational corporations. . . . It is time to treat the
issue for what it is: a serious foreign policy
problem.); Hearings Before the Subcomm. on
Consumer Protection, House of Representatives, 94th
Congress, Second Session at 139 (Sept. 21 & 22,

8
The FCPAs legislative history also reflects Congresss
examination of payments to foreign political parties and
campaigns, both of which the FCPA refers to expressly. See 15
U.S.C. 78dd-2(a)(2).
14

1976) (Foreign Payments Disclosure Hearing) (the
problem with corporate bribery overseas is that it
poses very significant problems for our own foreign
policy).
During its multi-year investigation and
deliberation, Congress clearly was aware that SOEs
existed and that some of the foreign payments may
have involved employees of such enterprises. Indeed,
some of the bills introduced to address the foreign
payments issue in the Senate and the House during
both the 94th and 95th Congresses included
definitions of foreign government that expressly
included SOEs. But none of those bills became law.
For instance, in August 1976, S. 3741 was
introduced in the Senate, and H.R. 15149 was
introduced in the House. Both bills defined foreign
government to include, among other things, a
corporation or other legal entity established or owned
by, and subject to control by, a foreign government.
S. 3741 (Aug. 6, 1976); H.R. 15149 (Aug. 10, 1976).
Similarly, in June 1977, H.R. 7543 was introduced in
the House and defined foreign government to
include a corporation or other legal entity
established, owned, or subject to managerial control
by a foreign government. H.R. 7543 (June 1, 1977).
The above-quoted language from S. 3741 and
H.R. 15149 provoked a comment from an American
Bar Association (ABA) committee, which informed
Congress that the definition of foreign government
in these bills was somewhat ambiguous. Foreign
Payments Disclosure Hearings (containing a Sept. 22,
1976 letter from the American Bar Association to
Rep. John Murphy, Chairman of the House
15

Subcomm. on Consumer Protection and Finance).
The ABA committee suggested a more precise
definition of this aspect of the definition of foreign
government and proposed the following language: a
legal entity which a foreign government owns or
controls as though an owner. Id.
Even though Congress was obviously aware of
SOEs and even though language in other bills
addressing foreign payments expressly included
SOEs, Congress chose not to include these definitions
or concepts in the bill that ultimately became the
FCPA in December 1977.
Rather, the FCPA defined foreign official as:
Any officer or employee of a foreign
government or any department, agency, or
instrumentality thereof, or any person acting
in an official capacity for or on behalf of such
government or department, agency or
instrumentality. Such term does not include
any employee of a foreign government or any
department, agency, or instrumentality
thereof whose duties are essentially
ministerial or clerical.
Foreign Corrupt Practices Act of 1977, Pub. L.
No. 95-213, 104, 91 Stat 1494, 1498.
In short, in enacting the FCPA, Congress
specifically contemplated but rejected statutory
language that would have included SOEs. Indeed, by
rejecting the definitions that appeared in S. 3741 and
H.R. 15149, Congress rejected the very ownership-
and-control test the Eleventh Circuit articulated in
this case to determine when individuals employed by
16

SOEs may be considered foreign officials under the
FCPA. The Eleventh Circuits erroneous
interpretation of the FCPA warrants this Courts
review. See INS v. Cardoza-Fonseca, 480 U.S. 421,
44243 (1987) (Few principles of statutory
construction are more compelling than the
proposition that Congress does not intend sub silentio
to enact statutory language that it has earlier
discarded in favor of other language) (internal
quotation marks omitted); Russello v. United States,
464 U.S. 16, 2324 (1983) (Where Congress includes
[certain] language in an earlier version of a bill but
deletes it prior to enactment, it may be presumed
that the [omitted text] was not intended.).
III. Instead of considering the relevant
enacting FCPA legislative history, the
Eleventh Circuit supported its conclusion
with a flawed analysis of subsequent 1998
amendments to the FCPA.
The Eleventh Circuit failed to consider the
legislative history of the 1977 enactment of the
FCPA. The court instead relied on statutory
amendments passed more than twenty years later to
determine the meaning of critical terms that have
always appeared in the statute. This Court has
cautioned that [p]ost-enactment legislative history
(a contradiction in terms) is not a legitimate tool of
statutory interpretation. Bruesewitz v. Wyeth LLC,
131 S. Ct. 1068, 1081 (2011). Even the Court of
Appeals acknowledged that it was wary of relying
too much on later legislative developments to decide
a prior Congress legislative intent and specifically
cited this Courts prior warning that the views of a
17

subsequent Congress form a hazardous basis for
inferring the intent of an earlier one. Pet. App. at
16 & n.7 (citing United States v. Price, 361 U.S. 304,
313 (1960)). Nevertheless, the construction of the
statute adopted by the Court of Appeals relied
heavily on the legislative history of the 1998
amendments to the FCPA.
Even assuming post-enactment legislative
history could theoretically be relevant to this issue,
the Eleventh Circuits reliance on the 1998
amendments is flawed in at least two respects. First,
the 1998 amendments did not modify or address the
component of the FCPAs definition of foreign
official at issue in this case. Prior to the FCPAs
1998 amendments, the FCPA defined foreign
official in pertinent part as:
any officer or employee of a foreign
government or any department, agency, or
instrumentality thereof, or any person acting
in an official capacity for or on behalf of any
such government or department, agency, or
instrumentality . . .
Omnibus Trade and Competitiveness Act of 1988,
Pub. L. No. 100-418, 5003, 102 Stat. 1107, 1418.
The 1998 amendments to the FCPA modified
that definition as follows:
any officer or employee of a foreign
government or any department, agency, or
instrumentality thereof, or of a public
international organization, or any person
acting in an official capacity for or on behalf
of any such government or department,
18

agency, or instrumentality, or for or on
behalf of any such public international
organization.
9

International Anti-Bribery and Fair Competition Act
of 1998, Pub. L. No. 105-366, 3, 112 Stat. 3302,
3305 (emphasis added).
As highlighted by the italicized text, the FCPAs
1998 amendments added unrelated language to make
it clear that public international organizations were
within the FCPAs scope. The amendments did not
modify the foreign official definition in any way
that is relevant to the question presented in this
case.
Second, the Eleventh Circuit erroneously
concluded that the FCPAs 1998 amendments fully
conformed the FCPA to the OECD Convention. Pet.
App. 1418. Having so concluded, the Court of
Appeals decided that the FCPAs foreign official
element must include employees of SOEs because the
OECD Conventions foreign public official definition
can include employees of a public enterprise under
certain circumstances. Pet. App. at 16.
10


9
The term public international organization was defined to
mean: (i) an organization that is designated by Executive order
pursuant to section 1 of the International Organizations
Immunities Act (22 U.S.C. [] 288); or (ii) any other
international organization that is designated by the President
by Executive order for the purposes of this section, effective as
of the date of publication of such order in the Federal Register.
10
The OECD Conventions inclusion of public enterprise in the
definition of foreign public official is specifically qualified
through Commentary 15 to the OECD Convention, which

19

However, the 1998 Amendments to the FCPA
were not intended to and did not bring the FCPA into
complete conformity with the OECD Convention.
When it passed the 1998 amendments, Congress
understood that, while the OECD Convention
approximated the FCPA, the two were not identical.
During Congressional hearings that led to the 1998
amendments, the OECD Convention was described
as closely model[ing] the FCPA, being very
similar to the FCPA; being largely consistent with
the FCPA; and tracking the FCPA closely. See
Hearings Before the Subcomm. on Finance and
Hazardous Materials, House of Representatives,
105th Congress, Second Session at 7, 10, 11 (Sept. 10,
1998). None of those statements demonstrates
Congresss intent to establish complete conformity
between the OECD Convention and the FCPA.
Regardless of Congresss intent, as the Fifth
Circuit has stated, the OECD Convention and the
FCPA, as modified by the 1998 amendments, remain
different in significant respects. See United States v.
Kay, 359 F.3d 738, 754 (5th Cir. 2004). For instance:
(i) while the FCPA contains an express statutory

states: An official of a public enterprise shall be deemed to
perform a public function unless the enterprise operates on a
normal commercial basis in the relevant market, i.e., on a basis
which is substantially equivalent to that of a private enterprise,
without preferential subsidies or other privileges.
Organization for Economic Cooperation and Developments
Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions, Dec. 17, 1997, S. Treaty
Doc. No. 105-43, 37 I.L.M. 1, art. 1.4, cmt. 15 (ratified Dec. 8,
1998, entered into force Feb. 15, 1999).
20

exception for facilitating payments, the OECD
Convention does not; (ii) while the FCPA prohibits
certain corrupt payments to political parties, the
OECD Convention does not; and (iii) while the FCPA
requires that corrupt payments be for the purpose of
obtain[ing] or retain[ing] business, the OECD
Convention contains no such requirement. Compare
15 U.S.C. 78dd-2(b), 78dd-2(a), with the
Organization for Economic Cooperation and
Developments Convention on Combating Bribery of
Foreign Public Officials in International Business
Transactions, Dec. 17, 1997, S. Treaty Doc. No. 105-
43, 37 I.L.M. 1 (ratified Dec. 8, 1998, entered into
force Feb. 15, 1999).
The erroneous assumption of equivalence
between the OECD Convention and the FCPA is a
critical flaw in the Eleventh Circuits analysis of the
statute. Based on that false premise, the Court of
Appeals inferred that Congress considered its
preexisting definition [of foreign official] already to
cover employees of SOEs. Pet. App. at 16. After all,
the Court of Appeals reasoned, if the 1998
amendments were designed to conform the FCPA to
the OECD Convention, and if the 1998 amendments
did not modify the relevant portions of the definition
of foreign official, then the definition of foreign
official must have already conformed to the OECD
Convention definition.
However, the Eleventh Circuits reasoning finds
support in neither the FCPAs enacting legislative
history, the legislative history relevant to the 1998
amendments, nor accepted norms of statutory
construction. This Court has warned against
21

divining legislative intent from Congresss inaction.
United States v. Craft, 535 U.S. 274, 287 (2002).
Furthermore, international agreements like the
OECD Convention which is not self-executing
may be given legal effect only insofar as Congress
separately enacts legislation to implement them. See
Bond v. United States, 134 S.Ct. 2077, 2084 (2013) (a
convention that is not self-executing does not by
itself give rise to domestically enforceable federal
law absent implementing legislation passed by
Congress (quoting Medelln v. Texas, 552 U.S. 491,
505, n.2 (2008))).
The scope of a key element of a top-priority
federal criminal statute that applies to countless
businesses and individuals engaged in international
commerce should be determined by ordinary tools of
statutory construction, not through a process of
inference based on mistaken assumptions about a
non-self-executing international agreement.
IV. If Congress wants to include SOEs in the
FCPA, as it has in other laws passed before
and after the FCPA, or wants to align the
FCPA with the OECD Convention on the
foreign official issue, Congress is clearly
capable of doing just that.
Both before and after enactment of the FCPA,
Congress has demonstrated its ability to draft and
enact bills that expressly address SOEs and related
concepts. It is axiomatic that when a particular term
is explicitly included in other statutes but is not
included in the statute at issue, courts should
presume that Congress did not intend to include that
22

term in the statute at issue. See, e.g., Whitfield v.
United States, 543 U.S. 209, 216 (2005).
Congress has repeatedly enacted statutory
definitions that expressly include SOEs, but the
definition included in the FCPA does not. Under
such circumstances, the absence of any mention of
SOEs in the FCPA indicates Congresss intent that
employees of SOEs do not fall within the FCPAs
definition of foreign official. Indeed, if the Eleventh
Circuits interpretation of the FCPAs statutory
language were correct, the express references to
SOEs that appear in other statutes would be
rendered entirely superfluous.
For instance, the Foreign Sovereign Immunities
Act (FSIA) passed by Congress in 1976 (one year
before the FCPA) expressly provides the following
definition:
(a) foreign state . . . includes a political
subdivision of a foreign state or an agency or
instrumentality of a foreign state as defined
in subsection (b).
(b) An agency or instrumentality of a
foreign state means any entity (1) which
is a separate legal person, corporate or
otherwise, and (2) which is an organ of a
foreign state or political subdivision thereof,
or a majority of whose shares or other
ownership interest is owned by a foreign state
or political subdivision thereof, and (3) which
is neither a citizen of a State of the United
States . . . nor created under the laws of any
third country.
23

28 U.S.C. 1603 (emphasis added).
Likewise, the Economic Espionage Act (EEA)
passed by Congress in 1996 regulates certain conduct
that will benefit any foreign government, foreign
instrumentality, or foreign agent and expressly
provides the following definition:
foreign instrumentality means any agency,
bureau, ministry, component, institution,
association, or any legal, commercial, or
business organization, corporation, firm, or
entity that is substantially owned, controlled,
sponsored, commanded, managed, or
dominated by a foreign government.
18 U.S.C. 1839(1) (emphasis added).
Similarly, the Dodd-Frank Wall Street Reform
and Consumer Protection Act (Dodd-Frank), passed
by Congress in 2010, required certain resource
extraction companies to disclose information
regarding payments for development of oil, natural
gas, or minerals made to foreign governments. The
law expressly includes the following definition of
foreign government:
the term foreign government means a
foreign government, a department, agency,
or instrumentality of a foreign government,
or a company owned by a foreign
government, as determined by the
Commission.
15 U.S.C. 78m(q)(1)(B) (emphasis added)
The quoted language of those statutes, which
expressly includes SOEs, would be rendered
24

surplusage if the Eleventh Circuits interpretation of
the FCPA were correct. Of course, courts hesitate to
adopt constructions of statutes that render language
unnecessary or inoperative. It is a well-settled rule
that all parts of a statute, if possible, are to be given
effect, Am. Textile Mfrs. Inst., Inc. v. Donovan, 452
U.S. 490, 513 (1981), and courts are reluctant to
treat statutory terms as surplusage in any setting.
See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001)
(internal quotation marks omitted).
Indeed, should it choose, Congress could easily
look to the anti-corruption legislation enacted by
several other OECD Convention signatory countries,
which legislation expressly includes SOEs and
related concepts. For instance, the United Kingdom
Bribery Act defines foreign public official to
expressly include individuals who exercise a public
function for any public enterprise. Bribery Act
2010, c. 23, 6 (Eng.), available at http://www.
legislation.gov.uk/ukpga/2010/23/contents (emphasis
added). Similarly, Canadas Corruption of Foreign
Public Officials Act defines foreign public official to
expressly include a person who performs public
duties or functions for a foreign state, including a
person employed by a corporation. Corruption of
Foreign Public Officials Act 1998, c. 34, 2 (Can.),
available at http://laws-lois.justice.gc.ca/eng/acts/C-
45.2/page-1.html (emphasis added). Likewise, the
relevant provisions of Australias Criminal Code Act
expressly state that foreign government body
includes a foreign public enterprise, and the Act
then contains a detailed definition of foreign public
enterprise. Criminal Code Act 1995, c. 4, Div. 70
25

(Austl.), available at http://www.comlaw.gov.au/
Details/C2014C00196 (emphasis added).
CONCLUSION
For the reasons stated above, the Petition should
be granted as to Question 1.
Respectfully submitted,

BRANDT LEIBE
Counsel of Record
KING & SPALDING LLP
1100 Louisiana St.
Suite 4000
Houston, TX 77002
(713) 751-3200
bleibe@kslaw.com

RUSSELL G. RYAN
KING & SPALDING LLP
1700 Pennsylvania Ave., NW
Washington, DC 20006

Counsel for Amicus Curiae