United States v. Ng Lap Seng

18-1725-cr
United States v. Ng Lap Seng
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2018
No. 18‐1725‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
NG LAP SENG, AKA DAVID NG, AKA DAVID NG LAP SENG,
Defendant‐Appellant,
JOHN W. ASHE, FRANCIS LORENZO, AKA FRANK LORENZO, JEFF C. YIN,
AKA YIN CHUAN, SHIWEI YAN, HEIDI HONG PIAO, AKA HEIDI PARK,
Defendants.
On Appeal from the United States District Court
for the Southern District of New York

The Clerk of the Court is directed to amend the official caption to read as shown
above.
ARGUED: NOVEMBER 8, 2018
DECIDED: AUGUST 9, 2019
Before: RAGGI, HALL, and SULLIVAN, Circuit Judges.
____________
On appeal from a judgment entered after trial in the United
States District Court for the Southern District of New York (Broderick,
J.), defendant Ng Lap Seng, who stands convicted of paying and
conspiring to pay bribes and gratuities to United Nations officials in
violation of 18 U.S.C. §§ 371, 666, and the Foreign Corrupt Practices
Act, 15 U.S.C. §§ 78dd‐2, 78dd‐3, and of related money laundering, 18
U.S.C. § 1956(a)(2)(A), (h), argues that (1) the United Nations is not
an “organization” within the meaning of § 666; (2) the jury was not
correctly instructed as to controlling law, particularly as pertains to
bribery in light of McDonnell v. United States, 136 S. Ct. 2355 (2016);
and (3) the evidence was insufficient, in any event, to support a guilty
verdict.
AFFIRMED.
Judge SULLIVAN concurs in a separate opinion.
DANIEL C. RICHENTHAL, Assistant United
States Attorney (Janis M. Echenberg,
2
Douglas S. Zolkind, Sarah K. Eddy,
Assistant United States Attorneys, on the
brief), for Geoffrey S. Berman, United States
Attorney for the Southern District of New
York, New York, New York, for Appellee.
PAUL CLEMENT (Viet D. Dinh, Erin E.
Murphy, C. Harker Rhodes IV, on the brief),
Kirkland & Ellis LLP, Washington, D.C., for
Defendant‐Appellant.
REENA RAGGI, Circuit Judge:
Defendant Ng Lap Seng paid two United Nations (“U.N.”)
ambassadors—one of whom was for a time also serving as President
of the General Assembly—more than $1 million to secure a U.N.
commitment to use Ng’s Macau real estate development as the site for
an annual U.N. conference. Based on this conduct, Ng now stands
convicted after a jury trial of paying and conspiring to pay bribes and
gratuities in violation of 18 U.S.C. §§ 371, 666, and the Foreign Corrupt
Practices Act (“FCPA”), 15 U.S.C. §§ 78dd‐2, 78dd‐3, as well as of
related conspiratorial and substantive money laundering, 18 U.S.C.
§ 1956(a)(2)(A), (h). A judgment, entered on June 7, 2018, in the
United States District Court for the Southern District of New York
(Vernon S. Broderick, Judge), orders Ng to serve concurrent 48‐month
3
prison terms on each of six counts of conviction,1 to forfeit $1.5
million, to pay a $1 million fine, and to make restitution to the U.N.
in the amount of $302,977.20.
Ng now appeals his conviction, arguing that (1) his conduct
cannot have violated § 666 because the U.N. is not an “organization”
within the meaning of that statute; (2) the jury instructions as to both
§ 666 and FCPA bribery were deficient in light of McDonnell v. United
States, 136 S. Ct. 2355 (2016); (3) the evidence was insufficient as a
matter of law to support a guilty verdict for these crimes; and (4)
without valid § 666 and FCPA predicate counts of conviction, his
related money laundering convictions cannot stand. For the reasons
explained in this opinion, Ng’s arguments fail on the merits.
Accordingly, we affirm the judgment of conviction on all counts.
BACKGROUND
Prosecution Evidence at Trial
Because Ng appeals a judgment of conviction following a jury
trial, we summarize the evidence adduced in the light most favorable
to the prosecution. See United States v. Thompson, 896 F.3d 155, 159 (2d
Cir. 2018).
1 The counts of conviction are as follows: Count One—conspiracy to violate
§ 666 and the FCPA; Count Two—substantive violation of § 666; Count Three—
substantive violation of the FCPA, 15 U.S.C. § 78dd‐2; Count Four—substantive
violation of the FCPA, 15 U.S.C. § 78dd‐3; Count Five—§ 1956 money laundering
conspiracy; and Count Six—substantive § 1956 money laundering.
4
Ng’s Convention Center Plan
In 2009–10, Chinese national Ng sought to develop his already
extensive Macau real estate holdings into a multi‐billion‐dollar
complex that would include hotels, luxury apartment buildings, and
a world‐class convention center. To ensure the reputation of his
convention center, and thereby to enhance the use and value of
adjacent real estate within his complex, Ng sought to have the U.N.
formally designate his center as the permanent site for the annual
convention, or “Expo,” of its Office for South‐South Cooperation
(“UNOSSC”), an event with broad attendance throughout the private
as well as public sectors.2 Toward this end, Ng engaged in a sustained
effort over five years to bribe two U.N. officials: (1) Francis Lorenzo,
a United States citizen serving as the Dominican Republic’s Deputy
Ambassador to the U.N.; and (2) John Ashe, the U.N. Ambassador for
Antigua and Barbuda and, for a time during the bribery scheme,
President of the General Assembly, the second‐ranking position
within the U.N.
Ng Recruits Lorenzo and Ashe
Ng first met Lorenzo in March 2009, and in December of that
year named him president of South‐South News (“SSN”), a media
organization owned by Ng and incorporated in New York. Lorenzo,
who pleaded guilty to bribery and other charges pursuant to a
2 UNOSSC promotes mutual assistance among developing countries of the
“Global South.” Trial Tr. at 1795–96.
5
cooperation agreement with the government,3 testified that he
understood that a portion of the $20,000 a month that Ng was paying
him as SSN salary, as well as other payments described herein—
which, by 2015, totaled over $1 million—were in fact bribes to secure
for Ng, not merely general U.N. support for UNOSSC’s use of his
Macau convention center, but a formal documented commitment to
do so. In short, Lorenzo understood that Ng was paying him in order
to procure “an official document from the United Nations,” Trial Tr.
at 652, i.e., he wanted “a contract,” id. at 671.
Ng and Lorenzo agreed that as the first step toward this goal,
Lorenzo would host “working sessions” for other ambassadors to
discuss issues of South‐South cooperation. App’x 1449. The plan was
for the sessions to produce a report making it appear that the
attending ambassadors were urging the U.N. to designate an official
UNOSSC meeting center.
At Lorenzo’s suggestion, Ng recruited Ashe to attend the first
meeting, which was held in China in April 2011. To induce Ashe’s
attendance, Ng paid for a vacation trip to New Orleans by Ashe’s
family. Ng also promised Ashe whatever financial assistance he
might need if he were to become President of the U.N. General
3 Specifically, Lorenzo pleaded guilty to (1) conspiratorial and substantive
bribery in violation of the FCPA; (2) receiving and paying bribes and gratuities in
violation of 18 U.S.C. § 666(a)(1)(B), (a)(2); and (3) money laundering, tax fraud,
and failure to file reports of foreign bank accounts in violation of 18 U.S.C.
§§ 1956(a)(2)(A), (h); 26 U.S.C. § 7606(1); and 31 U.S.C. §§ 5314, 5322(a).
6
Assembly. 4 After the China meeting, at Ashe’s request, Ng began
funneling $2,500–$6,000 per month to Ashe personally, disguised as
payments to Ashe’s wife for consulting services provided to SSN. In
fact, as SSN employees testified, Ashe’s wife never performed any
such services. Nevertheless, the sham monthly payments continued
through early 2015. Indeed, even when SSN was reducing expenses
in 2014, Lorenzo told Ng that payments to Ashe’s wife should
continue because “we need[] John [Ashe] to continue his support on
the [E]xpo.” Trial Tr. at 1258.
Acts in Furtherance of the Expo Scheme
In return for Ng’s payments, Lorenzo and Ashe took various
actions to support UNOSSC designating Ng’s convention center as its
permanent Expo site. On appeal, as at trial, the government
highlights four particular acts taken by the two ambassadors.
4 Apparently, the Office of the President of the General Assembly relies, in
part, on “voluntary contributions, in cash and in kind, from various donors,
including Member States, United Nations entities, foundations and
nongovernmental organizations.” App’x 1281 (U.N. Task Force Report). While
contributions to the Office of the President of the General Assembly are not, by
themselves, unlawful, making such contributions in exchange for a statutorily
proscribed quid pro quo can constitute unlawful bribery. See United States v. Sun‐
Diamond, 526 U.S. 398, 404–05 (1999); cf. McCormick v. United States, 500 U.S. 257,
273 (1991) (holding that elected official can commit Hobbs Act extortion for
receiving campaign contributions if payments are made “in return for an explicit
promise or undertaking by the official to perform or not to perform an official
act”).
7
Placing Documents in the Official Record of the U.N.
General Assembly Reporting Ambassadorial Support
for Ng’s Convention Center Plan
Following the 2011 working sessions, Ng directed Lorenzo and
Ashe to publicize and inflate ambassadorial support for UNOSSC’s
use of Ng’s convention center. Toward that end, the ambassadors
drafted and, on March 15, 2012, Ashe signed, a letter on U.N.
letterhead, addressed to the U.N. Secretary General, reporting that
representatives from eight member nations and various U.N.
departments had held “high‐level meetings and working sessions”
that resulted in the launching of a “Global Business Incubator.”
App’x 1449.5 With the assistance of an unwitting U.N. official,
Lorenzo and Ashe then had the letter made a part of the official
General Assembly record (hereafter “U.N. Document”), a step that
could only be taken by an accredited U.N. ambassador and that
allows the document to be circulated to all member states.6
5The letter ascribes high purposes to the Global Business Incubator while
providing no specifics as to their attainment: describing Incubator as “a facilitator
for Governments and the private sector in building the capacity of developing
countries to leverage innovation and creativity in achieving . . . [c]ore objectives”
such as “the creation of jobs and economic growth through sustainable
development and urbanization.” App’x 1451.
6Although the views expressed in such a communication remain those of
the author, not the U.N.—as would be the case for a resolution voted on by
Assembly members—a submitting ambassador must follow U.N. rules for his
communication to become part of the official record. For example, he must link
his communication to a U.N. agenda item. Ashe’s letter was, in fact, linked to
agenda item 16 for the General Assembly’s sixty‐sixth session, identified as
8
In December 2012, Ng instructed Lorenzo to revise the March
U.N. Document so that it expressly referenced a permanent Expo
center to be developed by Ng’s company, Sun Kian Ip Group (“SKI”).
Ashe and Lorenzo achieved this objective by securing reissuance of
the U.N. Document on June 6, 2013, “for technical reasons.” Id. at 1586
(hereafter “Revised U.N. Document”). In fact, changes to the reissued
document went well beyond the technical. Consistent with Ng’s
instructions, Ashe and Lorenzo added two entirely new substantive
paragraphs to the letters, as follows:
In this regard, I am pleased to inform you that in
response to the recommendation, Sun Kian Ip Group of
China has welcomed the initiative and will serve as the
representative for the implementation of the Permanent Expo
and Meeting Centre for the countries of the South. This is
one of the first centres in a network of incubator centres
in a public‐private partnership with the support of
leading partner South‐South News.
As envisaged, I foresee that this permanent exposition
centre of innovation and excellence will play an
important role, not only in accelerating the development
and deploying of technologies, including through South‐
South and triangular cooperation, but also in harnessing
the potential of [information and communication
technologies] for sustainable growth, investment,
“information and communication technologies for development.” App’x 1449,
1586. Once a communication is made part of the official General Assembly record,
the U.N. translates it into each of its six official languages, prints it in journals
reflecting the General Assembly agenda, and makes it publicly available on U.N.
websites.
9
capacity‐building and job creation, particularly in
developing countries.
Id. (emphases added).
UNOSSC’s Letter of Support for Ng’s Convention
Center Plan
Ng further directed Lorenzo to obtain a letter from UNOSSC
endorsing a permanent Expo center, characterizing such support as a
“top priority.” Id. at 1452. Lorenzo testified that such a letter from
UNOSSC would, indeed, provide “very significant” support within
the U.N. for Ng’s convention center plan. Trial Tr. at 1092. Ng paid
Lorenzo $30,000 per month to secure such a letter (in addition to the
$20,000 per month already being paid to him as SSN president),
funneling the money through sham contract payments to a
Dominican company operated by Lorenzo’s brother.
The opportunity for procuring such a letter arose when, for a
time in 2013, Ashe served as President of both the U.N. General
Assembly and the Assembly’s High‐Level Committee on South‐South
Cooperation, which was serviced by UNOSSC, then headed by
Chinese national Yiping Zhou. Taking advantage of these
circumstances, Ashe and Lorenzo proceeded to procure the
demanded UNOSSC commitment letter, creating a paper trail that
made no mention of payments the two men were receiving from Ng
to do so but, rather, suggested that they were objectively performing
their official duties in supporting Ng’s plan.
10
As the first step in the charade, on October 10, 2013, Ng sent
Lorenzo a letter congratulating his U.N. leadership on South‐South
cooperation; referencing SKI’s purported appointment (as indicated
in the Revised U.N. Document) to implement a “Permanent Expo and
Meeting Center for the countries of the South”; and seeking Lorenzo’s
ambassadorial assistance in bringing to the attention of the President
of the General Assembly, i.e., Ashe, and UNOSSC an attached “master
plan and proposal for implementation” of the center. App’x 1602.
The letter gave Lorenzo an excuse to meet with Ashe and Zhou and,
thereafter, to make a formal request “on behalf of the Ambassadors”
who had attended earlier Expos to give favorable consideration to the
“offer made by Macao7 Special Administrative Region of the People’s
Republic of China to provide the Global South‐South Development
Expo a permanent home.” Id. at 1536–37.
When a month passed with no action on Lorenzo’s request, Ng
had his subordinate threaten to halt future payments to Lorenzo
“unless further progress is made.” Id. at 1478. Ten days later, on
November 28, 2013, Lorenzo met in New York with the subordinate,
who gave Lorenzo $20,000 to pay Ashe as a further inducement for
his influencing Zhou to endorse Ng’s permanent Expo plan.8 After
7 While this opinion refers to “Macau,” to the extent some record evidence
uses the alternative spelling, “Macao,” we so quote it.
8 Lorenzo gave Ashe only $16,000, the amount Ashe had requested Ng pay
to cover the cost of a reception that Ashe wished to host for U.N. staff. Lorenzo
kept the rest of Ng’s $20,000 payment for himself.
11
more meetings among Lorenzo, Ashe, and Zhou, the UNOSSC
director provided the desired letter of support.9
The letter, which was backdated to June 7, 2013—so that it
could be copied to Ashe as if he were still serving as President of the
General Assembly High‐Level Committee—was addressed to both
Lorenzo in his ambassadorial capacity and to Ng’s SKI organization.
Written on UNOSSC letterhead and signed by Zhou as UNOSSC
director, the letter observed that the Revised U.N. Document “clearly
state[s] that Sun Kian Ip Group of China is tasked to establish the
Permanent Expo and Meeting Centre for the countries of the South,”
professed UNOSSC’s view that this was “a very welcome initiative,”
and expressed its “strong support for this initiative led by Sun Kian
Ip Group with the coordination of [SSN].” Id. at 1642.
Ashe’s March 2014 Trip to Macau
In March 2014, Ng arranged for Ashe, as General Assembly
President, and accompanying U.N. staff and security officers, to visit
Macau for a first‐hand inspection of the almost‐completed convention
center complex. Ashe agreed to make the trip only if Ng made a
sizable contribution to the Office of the President of the General
Assembly. See id. at 1493 (“I will not go unless I see the funds . . . to
help fund the PGA office.”). On the trip, Ashe assured Ng of his
support for U.N. use of the Macau center in return for Ng’s continued
9 The government does not contend that Zhou was other than an unwitting
participant in the charged bribery scheme.
12
financial support of Ashe’s endeavors as General Assembly
President.
Soon thereafter, Ashe asked Ng to pay the $200,000 cost of a
concert that Ashe wished to host at the U.N. Lorenzo advised Ng to
make the payment to ensure that Ashe “continues supporting” a
convention center agreement. Trial Tr. at 1310. On June 3, 2014, Ng
wired the requested amount to an account designated by Ashe.
UNOSSC’s Expo Commitment and Pro Bono
Agreement
On June 13, 2014, approximately ten days after Ng wired Ashe
the requested $200,000, Zhou sent Lorenzo a letter stating that “with
the support of the President of the General Assembly”— i.e., Ashe—
UNOSSC expected to have a pro bono agreement drafted in a matter
of weeks for SKI to host the 2015 UNOSSC Expo as well as another
global forum. App’x 1641.10 On December 25, 2014, Ng on behalf of
SKI and Zhou on behalf of UNOSSC did, in fact, sign what was
entitled the “Pro Bono Agreement . . . [f]or the hosting of the United
Nations Global South‐South Development Expo and Permanent
Meeting Center and other Mutually Agreed Events.” Id. at 1836–48.11
The contract was denominated a “pro bono agreement” because Ng’s
10
company would be obligated to provide the required Expo facilities at no cost to
UNOSSC.
11 Despite the title reference to a “Permanent Meeting Center,” the
agreement ran only through December 31, 2017, and was terminable at will even
earlier on either side giving proper notice.
13
A few weeks later, on February 2, 2015, Zhou sent a letter to
Lorenzo—identified therein as President of both SSN and SKI—
formally inviting these two entities to host both the 2015 Expo and a
2015 global forum on poverty. Zhou therein reported that “the
President of the . . . General Assembly, H.E. John Ashe, [had] been
calling upon [Zhou’s] office to step up the efforts to support . . . in
particular, the Permanent Expo and Meeting Centre in Macao,” and
that UNOSSC “strongly support[ed]” such a center by SKI and SSN.
Id. at 1525.
The 2015 Expo
In August 2015, Ng launched his Macau convention center with
a UNOSSC forum attended by U.N. ambassadors, as well as other
public‐ and private‐sector officials. Lorenzo prepared an “outcome
document” for circulation within the U.N., which reported, among
other things, participants’ call for the establishment of a permanent
convention center for the Expo. Lorenzo and Ashe then worked to
incorporate the document into a General Assembly resolution,
broaching such action to the then‐president of the High‐Level
Committee on South‐South Cooperation. The plan was abandoned,
however, after Ng’s arrest the following month.
Defense Evidence at Trial
The defense case was limited to offering into evidence financial
records and a U.N. report, and to having a witness testify to certain of
these documents.
14
Conviction
On July 27, 2017, a jury found Ng guilty on all counts charged.
The district court sentenced Ng on May 11, 2018, to a total of 48
months’ imprisonment and a $1 million fine, and ordered forfeiture
of $1.5 million and restitution of $302,977.20. Judgment was entered
on June 7, 2018. This timely appeal followed. On June 27, 2018, this
Court denied Ng’s motion for bail pending appeal.
DISCUSSION
The § 666 Challenge
Ng argues that his § 666 convictions cannot stand because the
U.N. is not an “organization” within the meaning of that statute.12 13
Ng does not dispute that the U.N. meets the dictionary definition of
the term “organization.”14 Indeed, he acknowledges that the “UN is
undeniably a public international organization.” Appellant Reply Br.
at 4; see also Appellant Br. at 23–24. Nevertheless, he maintains that
“organization,” as used in § 666, must be construed narrowly to
reference only private, and not public, entities.
Precedent Supports § 666 Prosecution of U.N. Bribery
In arguing that § 666 does not reach a public international
organization such as the U.N., Ng confronts a high hurdle: this court’s
12 The statute, entitled “Theft or bribery concerning programs receiving
Federal funds,” states in pertinent part as follows:
15
(a) Whoever, if the circumstance described in subsection (b) of this
section exists—
(1) being an agent of an organization, or of a State, local, or
Indian tribal government, or any agency thereof—
...
(B) corruptly solicits or demands for the benefit of any
person, or accepts or agrees to accept, anything of value
from any person, intending to be influenced or rewarded in
connection with any business, transaction, or series of
transactions of such organization, government, or agency
involving any thing of value of $5,000 or more; or
(2) corruptly gives, offers, or agrees to give anything of value
to any person, with intent to influence or reward an agent
of an organization, or of a State, local or Indian tribal
government, or any agency thereof, in connection with any
business, transaction, or series of transactions of such
organization, government, or agency involving anything of
value of $5,000 or more;
shall be fined under this title, imprisoned not more than 10
years, or both.
(b) The circumstance referred to in section (a) of this section is that
the organization, government, or agency receives, in any one
year period, benefits in excess of $10,000 under a Federal
program involving a grant, contract, subsidy, loan, guarantee,
insurance, or other form of Federal assistance.
18 U.S.C. § 666 (emphases added).
13 Although Ng was prosecuted under § 666 on both bribery and gratuity
theories, he does not distinguish between these theories in pursuing his appellate
challenges. This court reviews those challenges by reference to bribery, which is
distinguished from the unlawful payment of a gratuity by a quid pro quo element.
See United States v. Sun‐Diamond Growers of Cal., 526 U.S. at 404–05.
16
decision in United States v. Bahel, 662 F.3d 610 (2d Cir. 2011). In that
case, this court affirmed the § 666 conviction of a U.N. official who
corruptly accepted and solicited things of value in return for
influencing the award of U.N. contracts.
Ng argues that Bahel does not control this appeal because the
defendant there challenged only whether United States’ contributions
to the U.N., specified by international agreement, qualified as federal
program benefits under § 666. He did not ask the court to decide
whether the U.N. was an “organization” under § 666. Perhaps not.
But the court’s opinion is more reasonably read to suggest that the
matter is beyond, rather than open to, question. Bahel explains that
Congress having allocated money to the U.N., the United States “has
a legitimate and significant interest in prohibiting . . . acts of bribery
being perpetuated at the organization,” and identifies “no principled
basis on which to distinguish congressional authorization of the
payment [of] U.N. dues from federal monies flowing to [other] non‐
governmental organizations.” Id. at 629–30 (internal quotation marks
omitted) (emphases added).
14 See Black’s Law Dictionary (10th ed. 2014) (defining “organization” as
“body of persons . . . formed for a common purpose”); Oxford English Dictionary
(3rd ed. 2004) (defining “organization” as an “organized body of people with a
particular purpose, as a business, government department, charity”); Webster’s
Third New Int’l Dictionary (2002) (defining “organization” as “a group of people
that has a more or less constant membership, a body of officers, a purpose, and
usu. a set of regulations”).
17
Section 666’s Text and Context Warrant Excluding Only
Governments, not Public International Organizations,
from the Word “Organization”
Even without Bahel, Ng’s urged narrow reading of § 666 is not
persuasive. We review questions of statutory interpretation de novo,
see, e.g., United States v. Epskamp, 832 F.3d 154, 160 (2d Cir. 2016), and
here conclude that while “organization,” as used in § 666, does not
include governments or their constituent parts, it does include non‐
government public international organizations such as the U.N.
“Statutory analysis necessarily begins with the plain meaning
of a law’s text and, absent ambiguity, will generally end there.”
Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir. 2010) (internal quotation
marks omitted); see Salinas v. United States, 522 U.S. 52, 57 (1997)
(stating, in construing § 666, that “[c]ourts in applying criminal laws
generally must follow the plain and unambiguous meaning of the
statutory language” (internal quotation marks omitted)).
Section 666 specifically defines certain words used in that
statute. For example, the term “State,” as used in the phrase “or of a
State, local or Indian tribal government,” is statutorily defined to
mean “a State of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States.” 18
U.S.C. § 666(d)(4). But § 666 provides no statute‐specific definition of
“organization.” Nevertheless, at the outset of Title 18, Congress
provides a broad general definition of the word: “As used in this title,
the term ‘organization’ means a person other than an individual.” Id.
§ 18. Further, the very first provision of the United States Code
18
generally defines the word “person”: “In determining the meaning of
any Act of Congress, unless the context indicates otherwise— . . . the
word[] ‘person’ . . . include[s] corporations, companies, associations,
firms, partnerships, societies, and joint stock companies, as well as
individuals.” 1 U.S.C. § 1. Read together, these two definitional
provisions signal that, unless the statutory context indicates
otherwise, the word “organization,” whenever used in Title 18,
applies broadly to all legal “persons,” whether large or small,
domestic or international, public or private, governmental or non‐
governmental. See Black’s Law Dictionary (10th ed. 2010) (defining
“legal” or “artificial” person as “entity, such as a corporation, created
by law and given certain legal rights and duties of a human being”);
cf. Town of River Vale v. Orangetown, 403 F.2d 684, 686 (2d Cir. 1968)
(holding that municipal corporation, like any “corporation,” is person
within protection of Fourteenth Amendment).
The context in which “organization” is used in § 666, however,
does signal some definitional narrowing; specifically, governments
and their constituent parts are not among the legal persons that
Congress intended to include within the word as used in that statute.
See generally United States v. Epskamp, 832 F.3d at 162 (“A particular
statute’s plain meaning can best be understood by looking to the
statutory scheme as a whole and placing the particular provision
within the context of that statute.” (internal quotation marks
omitted)). This is evident from the fact that the statute prohibits the
solicitation or payment of bribes not only as to “organization[s],” but
also as to “State, local, or Indian tribal government[s]” receiving
19
federal funds. 18 U.S.C. § 666(a)(1), (2). There would be no need to
identify such government entities in § 666 if they were already among
the legal persons covered by the word “organization.” It is a well‐
established canon of construction that statutory text should not be
construed so broadly as to render other statutory text superfluous.
See, e.g., Marx v. Gen. Revenue Corp., 568 U.S. 371, 386 (2013); United
States v. Valente, 915 F.3d 916, 923 (2d Cir. 2019). Thus, consistent with
this canon, we construe the word “organization” as used in § 666 to
reference any legal person that is not a government precisely because
Congress used additional language—“or a State, local or Indian tribal
government”—to identify those government entities it wished to
cover by the statute.15
Construing “organization” to mean all legal persons except
governments yields no peculiar result. Indeed, in other contexts,
Congress has so limited the word, while otherwise maintaining its
broad application. See, e.g., 18 U.S.C. § 513(c)(4) (stating with respect
to securities of “State” or “organization” that “term ‘organization’
means a legal entity, other than a government, established or
organized for any purpose, and includes a corporation, company,
association, firm, partnership, joint stock company, foundation,
15 As the text indicates, Congress did not extend § 666 to all government
entities receiving federal money. Notably, the statute does not apply to bribery
within branches, departments, or agencies of the federal government, a matter
proscribed, both as to solicitation and payment, by 18 U.S.C. § 201; see infra at note
21 (quoting statutory text). It also does not apply to bribery of foreign government
officials, conduct prohibited by the FCPA when engaged in by United States
domestic concerns or by any person within United States territory. See 15 U.S.C.
§§ 78dd‐2(a), 78dd‐3(a); infra at note 20.
20
institution, society, union, or any other association of persons which
operates in or the activities of which affect interstate or foreign
commerce”). Congress’s failure in one statutory provision to impose
a limit expressly stated in another provision can signal its intent not
to narrow the reach of the unmodified word. See, e.g., Russello v.
United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes
particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.”
(internal quotation marks omitted)). But here, statutory context and
the canon against superfluous construction allow us to identify a
limiting intent even though not explicitly expressed. See generally
Burns v. United States, 501 U.S. 129, 136 (1991) (“An inference drawn
from congressional silence certainly cannot be credited when it is
contrary to all other textual and contextual evidence of congressional
intent.”).
Neither the text nor structure of § 666, however, supports the
still narrower construction of “organization” urged by Ng. He would
have us cabin the word, as used in § 666, to private organizations,
excluding from the statute’s protection scores of public international
organizations in which the United States is a member and for which
it is frequently a major financial contributor. 16 In addition to the U.N.,
such organizations include the International Monetary Fund, the
World Health Organization, the Organization of American States, the
16The United States contributes in excess of $1 billion annually to U.N.
operations.
21
International Committee of the Red Cross, the International Criminal
Police Organization (INTERPOL), and many more. See 22 U.S.C.
§ 288 (listing more than 80 entities “designated by executive order as
public international organizations”).17 Such legal persons easily fall
within the broad definition of “organization” established by 1 U.S.C.
§ 1 and 18 U.S.C. § 18. And there is no need to exclude such persons
from the word “organization” as used in § 666 to avoid rendering
other language in the statute superfluous. In the absence of such a
concern, neither statutory text nor purpose supports construing
“organization,” as used in § 666, to exclude public international
organizations. See Salinas v. United States, 522 U.S. at 56 (stating that
§ 666 has “expansive, unqualified language, both as to the bribes
forbidden and the entities covered” (emphasis added)); see also United
States v. Bahel, 662 F.3d at 627 (observing, in upholding § 666
conviction, that Congress has an interest in “ensuring that any
[federal] money contributed to the U.N. is responsibly expended and
accounted for”).18
17That statute, in providing privileges and immunities to “international
organization[s],” states that the term “means a public international organization
in which the United States participates pursuant to any treaty or under the
authority of any Act of Congress authorizing such participation or making an
appropriation for such participation.” 22 U.S.C. § 288.
18 In urging otherwise, Ng quotes a reference to “private organizations” in
legislative history. See S. Rep. No. 98‐225, at 369 (1983) (observing that § 666 is
intended to protect “federal monies that are disbursed to private organizations or
state and local governments”). While legislative history may aid statutory
construction when text, context, and canons of construction fail to make
Congress’s intent clear, the Supreme Court has cautioned against giving
22
The U.N. Is Not Excludable from § 666 as a Foreign
Government
Nor can Ng avoid § 666 culpability by analogizing the U.N. to
a foreign government. The U.N. is not a sovereign entity. Rather, it
is an association of more than 190 independent sovereigns that have
joined in, and agreed to fund, what they themselves describe as an
“Organization . . . based on the principle of the sovereign equality of
all its members,” for the purpose of “maintain[ing] international
peace and security.” Charter of the United Nations, ch. I, art. 1, § 1,
art. 2, § 1. Thus, from a definitional perspective, the U.N. cannot
reasonably be deemed a “foreign government” rather than an
international “organization” under § 666.
This conclusion finds further support in statutes that refer
separately to “foreign governments” and “international
organizations,” even when Congress chooses to apply the law equally
to both. See, e.g., 10 U.S.C. § 130c (explaining that statutory protection
for sensitive information of foreign governments reaches information
provided by or produced in cooperation with an international
organization as well as a foreign government); 18 U.S.C.
§ 1116(b)(4)(B) (defining “internationally protected person” in federal
“authoritative weight” to “a single passage of legislative history that is in no way
anchored in the text of the statute.” Shannon v. United States, 512 U.S. 573, 583
(1994); accord United States v. Awadallah, 349 F.3d 42, 54 (2d Cir. 2003). Here,
Congress did not employ the term “private organization” in § 666; rather, it spoke
of “organization,” without qualification. Thus, we construe the word according
to its broad statutory definition, see 1 U.S.C. § 1; 18 U.S.C. § 18, limited only as
necessary to avoid superfluousness.
23
homicide statute to include representatives, officers, employees, or
agents of United States government, foreign government, “or
international organization”). Whether to apply certain laws equally
to foreign governments and international organizations is, of course,
a policy choice left to Congress. Courts, by contrast, do not make
policy choices in construing statutes. See generally Husted v. A. Philip
Randolph Inst., 138 S. Ct. 1833, 1848 (2018) (observing that “case
presents a question of statutory interpretation, not a question of
policy”).
Ng nevertheless argues that the U.N. should be treated as a
government outside the scope of § 666 to avoid the “international
conflict” that could arise because that statute—by contrast to the
FCPA—can apply to “both the payor and the recipient of a bribe,” the
latter of whom may be a foreign government official or diplomat.
Appellant Br. at 22 (emphasis in original). We are not persuaded. As
we observed in Bahel, the law already provides a comprehensive
framework for affording government officials and diplomats
immunity from prosecution. See United States v. Bahel, 662 F.3d at 623–
26 (discussing Diplomatic Relations Act, 22 U.S.C. § 254d, the
Convention on Privileges and Immunities of the U.N., Feb. 13, 1946,
21 U.S.T. 1418, and the International Organization Immunities Act, 22
U.S.C. § 288a).19
19 Moreover, within that framework, certain limitations and exceptions
apply. For example, in Bahel, the U.N. itself waived the immunity of its employee.
See 662 F.3d at 623–26; 22 U.S.C. § 288d(b). Further, diplomats who are citizens or
permanent residents of the United States do not enjoy general diplomatic
24
The Federalism Concerns Informing Nixon v. Missouri
Municipal League Are Not Present Here
Ng maintains that if Congress intended for § 666 to prohibit
bribes pertaining to public, as well as private, organizations, it was
required to say so explicitly. In support, he cites Nixon v. Missouri
Municipal League, 541 U.S. 125 (2004), wherein the Supreme Court
construed the undefined phrase “any entity” in a preemption
provision of the Telecommunications Act not to apply to political
subdivisions of a state. See 47 U.S.C. § 253(a) (“No State or local
statute or regulation, or other State or local legal requirement, may
prohibit or have the effect of prohibiting the ability of any entity to
provide any interstate or intrastate telecommunications service”
(emphasis added)). Nixon explained that “[w]hile an ‘entity’ can be
either public or private, there is no convention of omitting the
modifiers ‘public and private’ when both are meant to be covered.”
Nixon v. Mo. Mun. League, 541 U.S. at 132 (citations omitted). From
immunity. Rather, they are entitled to immunity only in the performance of their
duties. See Vienna Convention on Diplomatic Relations (“VCDR”), April 18, 1961,
23 U.S.T. 3227, Art. 38(1) (“[A] diplomatic agent who is a national of or
permanently resident in that State shall enjoy immunity from jurisdiction, and
inviolability, in respect of official acts performed in the exercise of his functions.”);
22 U.S.C. § 254d (incorporating VCDR); U.N. Manual of Protocol, Section VI
(stating that “diplomatic privileges and immunities are not granted to members of
diplomatic personnel who are citizens or permanent residents of the United
States”); see also Memorandum and Order, United States v. Lorenzo, 15‐cr‐706 (VSB),
Dkt. No. 155 (S.D.N.Y. Feb. 6, 2016) (holding that Lorenzo, as a U.S. citizen, could
claim diplomatic immunity with respect to official acts only). Thus, far from
supporting Ng’s urged narrowing of § 666 to exclude all public international
organizations, the very limitations on U.N. diplomats’ and employees’ immunity
indicate that international comity demands no such categorical construction.
25
this, Ng urges us to conclude from the absence of such modifiers for
the word “organization” in § 666 that the word presumptively does
not reach both “public and private” legal persons.
This argument fails to persuade because Nixon used “public
and private” to distinguish between government and non‐
government entities in circumstances where the animating concern
was federalism—i.e., the constitutional principle for distributing
“power as between the Nation and the States.” Staub v. City of Baxley,
355 U.S. 313, 325–26 (1958). For reasons explained supra at Section
I.B., from the context in which “organization” is used in § 666, we
construe the word not to include government entities, thereby
removing the federalism concern informing the Nixon decision.
In Nixon, a Missouri law stated that “[n]o political subdivision of
this state shall provide or offer for sale . . . a telecommunications
service . . . for which a certificate of service authority is required.”
Missouri Rev. Stat. § 392.410(7) (emphasis added); see Nixon v. Mo.
Mun. League, 541 U.S. at 129. The Court addressed whether such
legislation was preempted by the Telecommunications Act’s
reference to “any entity.” 47 U.S.C. § 253(a) (emphasis added). Nixon
concluded that it was not, relying on Gregory v. Ashcroft, 501 U.S. 452(1991), which holds that Congress must speak with particular clarity
when its intent is to constrain traditional state authority to order its
own government. In sum, federalism compelled a conclusion that,
without a “public and private” modifier, § 253(a)’s use of the term
“any entity” was insufficient to make clear Congress’s intent to
preclude state legislation pertaining to its own political subdivisions.
26
See Nixon v. Mo. Mun. League, 541 U.S. at 140 (referencing “working
assumption that federal legislation threatening to trench on the States’
arrangements for conducting their own government should be
treated with great skepticism, and read in a way that preserves a
State’s chosen disposition of its own power, in the absence of the plain
statement Gregory requires”). But nothing in Nixon suggests that
Congress must use such modifiers to give words that do not reference
government entities—such as “organization” in § 666—their natural
broad effect.
Thus, even assuming arguendo that Congress’s extension of
§ 666 protection to state and local governments could implicate
federalism, Congress here satisfied Nixon and Gregory by expressly
stating its intent to reach such governments in the statutory phrase,
“or of a State, local, or Indian tribal government.” 18 U.S.C.
§ 666(a)(1), (2); see id. § 666(d)(4) (defining “State”); cf. Salinas v. United
States, 522 U.S. at 60 (observing, in the case of § 666 conviction, that
Gregory’s federalism principle of statutory construction does “not
apply when a statute [is] ambiguous”). It is because statutory text
making explicit Congress’s intent to reach certain governments
cannot be superfluous that we construe the word “organization” not
to reach governments, state or otherwise. Nevertheless, because
“organization” is broadly defined by 1 U.S.C. § 1 and 18 U.S.C. § 18,
we conclude that the word otherwise includes all non‐government
legal persons, including public international organizations such as the
U.N., within § 666’s protection. That conclusion presents no
federalism concern and, thus, we do not understand Nixon to require
27
a “public and private” modifier to give “organization” the full reach
of its statutory definition. Accordingly, we reject Ng’s Nixon‐based
challenge to his § 666 convictions.
Statutory History Does Not Require Construing § 666 To
Exclude Public International Organizations
Ng maintains that the statutory histories of § 666 (enacted in
1984) and the FCPA (enacted in 1977 and as amended in 1998) compel
limiting the former’s use of “organization” to private entities.
Specifically, he points to the 1998 amendment’s addition of “public
international organizations” to the FCPA’s definition of “foreign
officials” whose bribery violates that law. See International Anti‐
Bribery and Fair Competition Act of 1998, P.L. 105‐366, sec. 3(c), 112
Stat. 3302, 3305 (codified as amended 15 U.S.C. §§ 78dd‐2(h)(2), 78dd‐
3(f)(2)).20 Ng argues that this amendment would have been
20Two provisions of the FCPA are relevant to this appeal. The first, entitled
“Prohibited foreign trade practices by domestic concerns,” states in pertinent part
as follows:
(a) It shall be unlawful for any domestic concern . . . or for any
officer, director, employee, or agent of such domestic concern .
. . to make use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer,
payment, promise to pay, or authorization of the payment of
any money, or offer, gift, promise to give, or authorization of
the giving of anything of value to—
(1) any foreign official for purposes of—
(A) (i) influencing any act or decision of such foreign official
in his official capacity, (ii) inducing such foreign official
28
unnecessary if such organizations were already included within the
term “organization,” as used in § 666. The argument fails to persuade.
to do or omit to do any act in violation of the lawful duty
of such official, or (iii) securing any improper advantage
(B) inducing such foreign official to use his influence with a
foreign government . . . to affect or influence any act or
decision of such government or instrumentality,
in order to assist such domestic concern in obtaining or
retaining business for or with, or directing business to, any
person.
...
(h) For purposes of this section:
...
(2) (A) The term “foreign official” means 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 such government or department, agency, or
instrumentality, or for or on behalf of any such public
international organization.
(B) For purposes of subparagraph (A), the term “public
international organization” means—
(i) an organization that is designated by Executive order
pursuant to section 288 of title 22; or (ii) any other
international organization that is designated by the
President by Executive order for the purposes of this
section . . . .
15 U.S.C. § 78dd‐2 (emphasis added).
A second FCPA section, entitled “Prohibited foreign trade practices by
persons other than issuers or domestic concerns,” prohibits the same conduct
when engaged in by any person “while in the territory of the United States.” Id.
§ 78dd‐3(a).
29
The presumption against surplusage is a canon for construing the text
of a single statute. See generally Marx v. Gen. Revenue Corp., 568 U.S. at
386 (observing that canon against surplusage is strongest when
interpretation would render superfluous another part of “same
statutory scheme”); Schiller v. Tower Semiconductor Ltd., 449 F.3d 286,
301 (2d Cir. 2006) (observing that canon against surplusage pertains
within single statutory provision, not across provisions). As long as
Congress does not run afoul of the Double Jeopardy Clause, it is not
required to address criminal conduct—such as corruption within
public international organizations—through only a single statute. See
United States v. Garavito‐Garcia, 827 F.3d 242, 251 & n.58 (2d Cir. 2016)
(rejecting double jeopardy challenge and noting that overlapping
statutes are not unusual); Conn. Nat’l Bank v. Germain, 503 U.S. 249,
253 (1992) (“Redundancies across statutes are not unusual . . . and so
long as there is no positive repugnancy between two laws, a court
must give effect to both.” (internal quotation marks and citation
omitted)).
Moreover, while certain conduct—as in this case—may violate
both the FCPA and § 666, the statutes are not invariably duplicative.
Section 666 focuses on the integrity of federal funding and, thus,
requires proof of such receipt by the public international
organization. The FCPA, however, applies to any entity designated a
public international organization as provided in 15 U.S.C. §§ 78dd‐
2(h)(2), 78dd‐3(f)(2), without regard to its receipt of federal money.
Further, while both § 666 and the FCPA prohibit domestic concerns
from paying bribes to officials of public international organizations,
30
the former statute also prohibits non‐domestic concerns from paying
such bribes, organization officials from soliciting or receiving such
bribes, and any theft or embezzlement from such organizations. Were
we to construe “organization” in § 666 as categorically limited to
private organizations on the ground that the FCPA now addresses
bribes by U.S. concerns to officials of foreign international
organizations, the result would be to leave much of the criminal
activity proscribed by § 666—and not covered by the FCPA—
unaddressed as pertains to public international organizations.
Nothing in the history of the statutes persuades us that was ever
Congress’s intent.
In sum, where, as here, a concern for statutory superfluousness
compels only that the word “organization,” as used in § 666, be
construed to exclude government entities, there is no reason for this
court also to exclude non‐government public international
organizations, such as the U.N., from the broad scope of that word as
defined in 1 U.S.C. § 1 and 18 U.S.C. § 18. Accordingly, here, as in
Bahel, we conclude that § 666 prohibits bribery pertaining to U.N.
officials. See United States v. Bahel, 662 F.3d at 629–30.
The McDonnell Challenge
Before the district court, the prosecution argued that the quid
pro quo elements of § 666 and the FCPA are not limited to “official
acts” as defined in the general bribery statute, see 18 U.S.C.
31
§ 201(a)(3),21 and as construed by the Supreme Court in McDonnell v.
United States, 136 S. Ct. 2355. The argument finds support in this
court’s decision in United States v. Boyland, 862 F.3d 279, 291 (2d Cir.
2017) (holding that McDonnell standard does not apply to § 666, which
“is more expansive than § 201”). The district court nevertheless
charged the jury that, as to the § 666 charges—but not the FCPA
charges—the government was required to prove that Ng “acted with
the intent to obtain ‘an official act’ from those agents of the U.N. to
whom he had given or offered something of value.” Trial Tr. at 4243.
On appeal, Ng argues, as he did below, that FCPA bribery, as well as
§ 666 bribery, requires proof of an official act satisfying the McDonnell
standard; that the district court’s official‐act instruction on § 666
bribery failed to satisfy that standard; and that the evidence was
insufficient in any event to satisfy the McDonnell standard.
We review a challenged jury instruction not in isolation but “as
a whole to see if the entire charge delivered a correct interpretation of
the law” or, rather, misled the jury as to the correct legal standard or
21The general bribery statute proscribes giving, offering or promising
anything of value to a “public official,” “with intent—(A) to influence any official
act.” 18 U.S.C. § 201(b)(1). The statute defines “public official” to mean any officer
or employee of the United States, or a “person acting for or on behalf of” the
federal government or a juror. Id. § 201(a)(1). It defines “official act” as,
any decision or action on any question, matter, cause, suit,
proceeding or controversy, which may at any time be pending, or
which may by law be brought before any public official, in such
official’s official capacity, or in such official’s place of trust or profit.
Id. § 201(a)(3).
32
otherwise failed adequately to inform it on the applicable law. United
States v. Silver, 864 F.3d 102, 118 (2d Cir. 2017) (internal quotation
marks omitted), cert. denied, 138 S. Ct. 738 (2018). Even where
charging error is identified, however, we will not reverse a conviction
if the government can show harmlessness, i.e., show that it is “clear
beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error.” United States v. Botti, 711 F.3d 299,
308 (2d Cir. 2013) (internal quotation marks omitted); see Neder v.
United States, 527 U.S. 1, 15 (1999); Fed. R. Crim. P. 52(a).
As to sufficiency, a defendant mounting such a challenge
“bears a heavy burden.” United States v. Heras, 609 F.3d 101, 105 (2d
Cir. 2010) (internal quotation marks omitted). That is because “a
reviewing court must consider the evidence ‘in the light most
favorable to the prosecution’ and uphold the conviction if ‘any
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” United States v. Aguilar, 585 F.3d
652, 656 (2d Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)) (emphasis in Jackson). Under this “stern standard,” a court
cannot substitute its own judgment for that of the jury as to the weight
of the evidence and the reasonable inferences to be drawn therefrom.
United States v. MacPherson, 424 F.3d 183, 187 (2d Cir. 2005). Rather, it
may reverse a guilty verdict only if “evidence that the defendant
committed the crime is nonexistent or so meager that no reasonable
jury could find guilt beyond a reasonable doubt.” Id. (internal
quotation marks omitted).
33
Applying these principles here, we reject Ng’s McDonnell
challenge because (1) § 201(a)(3)’s definition of “official act,” which
informs the McDonnell standard, does not delimit the quid pro quo
elements of § 666 and FCPA bribery; and (2) to the extent the district
court erroneously charged an “official act” instruction as to Ng’s § 666
crimes, that error was harmless beyond a reasonable doubt.
The McDonnell Standard Does not Apply to § 666 or the
FCPA
The McDonnell Standard
In McDonnell v. United States, a former Governor of Virginia
was convicted of honest services fraud, see 18 U.S.C. §§ 1343, 1349;
and Hobbs Act extortion, see id. § 1951(a), based on his alleged
acceptance of bribes, see McDonnell v. United States, 136 S. Ct. at 2365.22
At trial, the parties agreed that bribery would be defined for the jury
according to the general federal bribery statute, which in relevant part
required proof that the Governor had “committed or agreed to
commit an ‘official act’ in exchange for” undisputed loans and gifts.
Id. (quoting 18 U.S.C. § 201). At issue was whether “arranging a
meeting, contacting another public official, or hosting an event—
without more—concerning any subject, including a broad policy
issue such as Virginia economic development,” qualified as an
22As McDonnell observed, precedent had construed “honest services fraud
to forbid ‘fraudulent schemes to deprive another of honest services through bribes
or kickbacks,’” 136 S. Ct. at 2365 (quoting Skilling v. United States, 561 U.S. 358, 404
(2010)); and “Hobbs Act extortion to include ‘taking a bribe,’” id. (quoting Evans v.
United States, 504 U.S. 255, 260, 269 (1992)).
34
“official act” as defined in § 201(a)(3). Id. at 2367. In holding that
these actions did not, the Supreme Court identified in the statutory
text two requirements to prove an “official act” under § 201.
First, the Government must identify a “‘question, matter, cause,
suit, proceeding or controversy,’” that (a) is “‘pending’” or that “‘may
by law be brought before [a] public official’”; and (b) involves “a
formal exercise of governmental power” similar in nature to “a
lawsuit, hearing, or administrative determination.” Id. at 2368
(quoting § 201(a)(3)). The Court interpreted a “pending” matter as
“the kind of thing that can be put on an agenda, tracked for progress,
and then checked off as complete.” Id. at 2369. A matter that “may by
law be brought” is “something within the specific duties of an
official’s position.” Id.
“Second, the Government must prove that the public official
made a decision or took an action ‘on’ that question, matter, cause,
suit, proceeding, or controversy, or agreed to do so.” Id. at 2368
(quoting § 201(a)(3)). Such a decision or action could “include using
[one’s] official position to exert pressure on another official to perform
an ‘official act,’ or to advise another official, knowing or intending
that such advice will form the basis for an ‘official act’ by another
official.” Id. at 2372. But, without more, “[s]etting up a meeting,
talking to another official, or organizing an event (or agreeing to do
so)” are not official acts—although such actions “could serve as
evidence of an agreement to take an official act.” Id. at 2371–72; see
United States v. Silver, 864 F.3d at 116–17 (detailing two‐part test for
35
“official act” identified in McDonnell); United States v. Boyland, 862
F.3d at 289–90 (same).
Applying these principles to the Governor’s case, the Supreme
Court concluded that the jury charge on the “official act” element was
“significantly overinclusive” because it failed to instruct on “three
important qualifications.” McDonnell v. United States, 136 S. Ct. at
2374.23 Specifically, the charge should have instructed the jury,
(a) that it “must identify a ‘question, matter, cause, suit,
proceeding or controversy’ involving the formal
exercise of governmental power”;
(b) that “the pertinent ‘question, matter, cause, suit,
proceeding or controversy’ must be something
specific and focused that is ‘pending’ or ‘may by law
be brought before any public official’”; and
(c) that the Governor “made a decision or took an
action—or agreed to do so—on the identified
‘question, matter, cause, suit, proceeding, or
controversy,’” and that “merely arranging a meeting
23 In McDonnell, the jury was instructed that “official action” included
“‘actions that have been clearly established by settled practice as part of a public
official’s position, even if the action was not taken pursuant to responsibilities
explicitly assigned by law.’” 136 S. Ct. at 2373 (quoting jury charge). Further,
“‘official actions may include acts that a public official customarily performs,’
including acts ‘in furtherance of longer‐term goals,’ or ‘in a series of steps to
exercise influence or achieve an end.’” Id.
36
or hosting an event to discuss a matter does not count
as a decision or action on that matter.”
Id. at 2374–75 (emphasis in original) (quoting § 201(a)(3)). The Court
concluded that these omissions could not be deemed harmless
because, absent such instructions, and in light of the prosecution’s
arguments, the jury might have convicted the Governor based on
conduct that is not unlawful, such as merely holding meetings, taking
calls, and hosting events. See id. at 2375. Accordingly, the Court
ordered vacatur and remand. See id.; accord United States v. Silver, 864
F.3d at 112, 117–18 (identifying error in similarly unqualified jury
charge instructing that “‘[o]fficial action includes any action taken or
to be taken under color of official authority’” (emphasis in original)
(quoting jury instruction)).
Section 666 and FCPA Bribery Are Not Textually
Limited to “Official Acts” as Defined in § 201(a)(3) and
McDonnell
No uniform definition applies to the word “bribe” as
proscribed in the federal code. See United States v. Zacher, 586 F.2d
912, 915 (2d Cir. 1978). Nevertheless, at least as to the giver, bribery
is generally understood to mean the corrupt payment or offering of
something of value to a person in a position of trust with the intent to
influence his judgment or actions. See Perrin v. United States, 444 U.S.
37, 43–46 (1979).24 It is this quid pro quo element—“a specific intent
Perrin traces the “ordinary meaning of the term ‘bribery’” from its earliest
24
common law application in Coke’s writings “only to the corruption of judges,” to
37
[corruptly] to give . . . something of value in exchange” for action or
decision that distinguishes bribery from the related crime of illegal
gratuity. United States v. Sun‐Diamond Growers of Cal., 526 U.S. 398,
404–05 (1999) (emphasis in original) (explaining that gratuity “may
constitute merely a reward” for some past or future act).
In addressing various manifestations of bribery under the
federal criminal law, Congress may, of course, define the particular
quids and quos prohibited. In generally proscribing the bribery of
federal officials, Congress has prohibited corruptly giving such an
official “anything of value” (the quid) “to influence any official act” (the
quo). 18 U.S.C. § 201(b)(1)(A) (emphasis added). Congress has limited
“official act,” as used in § 201(b)(1)(A), (2)(A), however, to a statutory
definition. See id. § 201(a)(3). And, as just discussed, this text is the
source of the McDonnell standard. See supra at Section II.A.1.
But not all federal bribery statutes identify “official act,” much
less official act as defined in § 201(a)(3), as the necessary quo for
bribery. Indeed, the general bribery statute itself proscribes corruptly
its expansion by the time of Blackstone to “other person[s] concerned in the
administration of justice.” 444 U.S. at 42–43 (internal quotation marks omitted).
By the 19th century, bribery commonly penalized the corruption of voters,
witnesses, and any public official. See id. By the mid‐20th century, federal and
state statutes also proscribed the commercial bribery of employees and agents in
particular areas. See id. at 43. As this court has observed, the “common thread”
running through these formulations of bribery is “the element of corruption,
breach of trust, or violation of duty.” United States v. Zacher, 586 F.2d at 915; see
United States v. Esperdy, 285 F.2d 341, 342 (2d Cir. 1961) (“Bribery in essence is an
attempt to influence another to disregard his duty while continuing to appear
devoted to it or to repay trust with disloyalty.”).
38
giving anything of value in exchange for other quos: to influence a
public official to commit fraud, see 18 U.S.C. § 201(b)(1)(B); to induce
an official to violate a public duty, see id. § 201(b)(1)(C); to influence
sworn testimony, see id. § 201(b)(3). It would be superfluous to
identify these quos distinctly if they were mere variations on the
statute’s defined “official act.” See Marx v. Gen. Revenue Corp., 568 U.S.
at 386 (discussing presumption against statutory superfluousness);
United States v. Valente, 915 F.3d at 923.
Turning to the statutes here at issue, Congress identifies still
different quos in proscribing bribery in other contexts. Section 666,
which prohibits bribery concerning programs receiving federal
funding, makes it a crime corruptly to give a person anything of value
(the quid) “with intent to influence . . . an agent of an organization or
of a State, local or Indian tribal government,” any part of which
receives federal funding, “in connection with any business,
transaction, or series of transactions of such organization . . . involving
anything of value of $5,000 or more” (the quo). 18 U.S.C. § 666(a)(2).
The FCPA, which addresses certain foreign trade practices, makes it
a crime corruptly to give a foreign official anything of value (again,
the quid) for purposes of (1) “influencing any act or decision of such
foreign official in his official capacity”; (2) “inducing such foreign
official to do or omit to do any act in violation of the lawful duty of
such official,” (3) “securing any improper advantage,” or (4)
“inducing such foreign official to use his influence with a foreign
government or instrumentality thereof to affect or influence any act
or decision of such government or instrumentality” (the quos). 15
39
U.S.C. §§ 78dd‐2(a)(1), 78dd‐3(a)(1). The FCPA further requires that
each of these quos serves a particular purpose, i.e., to assist the giver
in “obtaining,” “retaining,” or “directing” business. Id.
From these textual differences among various bribery statutes,
we conclude that the McDonnell “official act” standard, derived from
the quo component of bribery as defined by § 201(a)(3), does not
necessarily delimit the quo components of other bribery statutes, such
as § 666 or the FCPA.
This court has already so held with respect to § 666 bribery,
reasoning that the language of that statute “is more expansive than
§ 201.” United States v. Boyland, 862 F.3d at 291. As Boyland observed,
§ 201(b)(1)(A) bribery pertains only to “‘official acts,’” a term
statutorily “limited to acts on pending ‘questions, matters, causes
suits, proceedings, or controversies.’” Id. (brackets omitted) (quoting
18 U.S.C. § 201(a)(3)); see supra at note 21. By contrast, § 666 prohibits
bribery “‘in connection with any business, transaction, or series of
transactions of [an] organization, government, or agency.’” United
States v. Boyland, 862 F.3d at 291 (quoting and emphasizing 18 U.S.C.
§ 666(a)(1)(B) (prohibiting solicitation of bribe)); see 18 U.S.C.
§ 666(a)(2) (prohibiting offering or paying bribe in same
circumstances). Nowhere does § 666 mention “official acts.”
Nowhere does it place any definitional limits on the business or
transactions to be influenced—beyond requiring them to be “of” the
organization receiving more than $10,000 in federal funding and to
have a “value of $5,000 or more.” 18 U.S.C. § 666(a)(2). Further, the
bribery proscribed by § 666 need not pertain directly to the business
40
or transactions of an organization receiving federal funding; it need
only be “in connection with” it. Id.; see Salinas v. United States, 522 U.S.
at 56–57 (stating that § 666’s “expansive, unqualified language” as to
“bribes forbidden” “undercuts the attempt to impose . . . narrowing
construction”); see also United States v. Robinson, 663 F.3d 265, 273–74
(7th Cir. 2011) (holding that “broad language” of § 666 reaches bribery
intended to influence even “intangible” business of federally funded
organization). Thus, Boyland holds that McDonnell’s “official act”
standard for the quo component of bribery as proscribed by § 201 does
not apply to the “more expansive” language of § 666. United States v.
Boyland, 862 F.3d at 291; see also United States v. Thiam, No. 17‐2765,
2019 WL 3540276, at *3 (2d Cir. August 5, 2019) (holding that
McDonnell analysis does not apply to provisions of Guinea’s Penal
Code that, like § 666, “plainly cover more than official acts”).25
25 Ng argues that Boyland is necessarily limited by United States v. Skelos,
707 F. App’x 733 (2d Cir. 2017), which summarily vacated a § 666 conviction based
on McDonnell error. He is wrong. First, summary decisions are non‐precedential
and, thus, cannot provide controlling “limits” on published rulings. See Jackler v.
Byrne, 658 F.3d 225, 244 (2d Cir. 2011); 2d Cir. Local R. 32.1.1(a). Second, and in
any event, a subsequent panel of this court is bound by prior precedent unless and
until reversed by the Supreme Court or by this court sitting en banc, see Doscher v.
Sea Port Grp. Secs., LLC, 832 F.3d 372, 378 (2d Cir. 2016), neither of which has
occurred with respect to Boyland. Third, Skelos presented unique facts
distinguishable from this case. In Skelos, the government argued that the state
senator defendant’s corrupt intent to be influenced in the performance of official
acts could be found from his arranging for or engaging in certain meetings. See
United States v. Skelos, 707 F. App’x at 737–38. Such conduct could not qualify as
an “official act” under the McDonnell standard, and the Skelos jury had not been
charged as to how the quo element of § 666 might nevertheless be found without
an official act and without raising the constitutional concerns identified in
41
Boyland’s reasoning applies with equal force to the FCPA,
which prohibits giving anything of value in exchange for any of four
specified quos, identified supra at note 20. While the first FCPA quo
referencing an “act or decision” of a “foreign official in his official
capacity” might be understood as an official act, the FCPA does not
cabin “official capacity” acts or decisions to a definitional list akin to
that for official acts in § 201(a)(3). 15 U.S.C. §§ 78dd‐2(a)(1)(A)(i);
78dd‐3(a)(1)(A)(i). Nor does it do so for acts or omissions that violate
an official’s “duty,” or that affect or influence the act or decision of a
foreign government. Id. §§ 78dd‐2(a)(1)(A)(ii), (B); 78dd‐3(a)(1)(A)(ii),
(B). Finally, the FCPA prohibits bribing a foreign official to “secur[e]
an improper advantage” in obtaining, retaining, or directing business,
McDonnell. In these circumstances, this court could not confidently conclude
beyond a reasonable doubt that any properly charged, rational jury would
necessarily return a guilty verdict in the particular circumstances of that case. See
id.
By contrast, here we conclude, for reasons stated infra at Section II.B. that
the “official act” instruction given by the district court on the § 666 charges, though
unwarranted, satisfied the McDonnell standard. Further, the government here
never suggested to the jury that setting up a meeting, taking a call, or hosting an
event, qualified as either the “official act” charged by the district court or the
“transaction” required by § 666. In fact, at its request, the district court instructed
the jury that such evidence could not satisfy § 666. Finally, as explained infra at
Section II.A.3., this case presents no constitutional concerns.
Thus, as a matter of both law and fact, Skelos cannot be read to limit
Boyland’s holding that McDonnell’s “official act” standard does not apply to § 666
or the FCPA. See also United States v. Thiam, 2019 WL 3540276, at *3 n.15 (cabining
Skelos).
42
without requiring that the advantage be secured by an official act as
limited by the § 201(a)(3) definition. Id. §§ 78dd‐2(a)(1)(A)(iii); 78dd‐
3(a)(1)(A)(iii).
Our conclusion that McDonnell’s “official act” standard does
not pertain to bribery as proscribed by § 666 and the FCPA finds
support in decisions of our sister circuits, which also recognize the
McDonnell standard to be grounded in the narrower text of § 201(a)(3),
(b)(1)(A). See, e.g., United States v. Porter, 886 F.3d 562, 565 (6th Cir.
2018) (“In McDonnell, the Supreme Court limited the interpretation of
the term ‘official act’ as it appears in § 201, an entirely different statute
than the one at issue here [i.e., § 666].”); United States v. Ferriero, 866
F.3d 107, 127‐28 (3d Cir. 2017) (declining to apply McDonnell standard
derived from § 201 to state bribery), cert. denied, 138 S. Ct. 1031 (2018);
see also United States v. Reed, 908 F.3d 102, 111 113 (5th Cir. 2018)
(declining to apply McDonnell to wire fraud conviction because
“troublesome concept of an ‘official act’” was not an element of that
crime, and further observing “fellow circuits’ reluctance to extend
McDonnell beyond the context of honest services fraud and the
[general] bribery statute”); cf. United States v. Maggio, 862 F.3d 642, 646
n.8 (8th Cir. 2017) (declining to revisit precedent holding that § 666
requires no nexus between charged bribe and federal funding,
explaining “McDonnell had nothing to do with § 666”).
43
Constitutional Concerns Do Not Mandate Application
of McDonnell’s “Official Act” Standard to § 666 and the
FCPA
In urging otherwise, Ng argues that McDonnell’s “official act”
standard is dictated not only by the text of § 201, but also by
constitutional concerns—about vagueness, representative
government, and federalism—that pertain equally to § 666 and FCPA
bribery. See McDonnell v. United States, 136 S. Ct. at 2372–73. We are
not persuaded.
a. Vagueness
The void‐for‐vagueness doctrine, derived from the Due Process
Clause, see U.S. Const., amend. V, instructs that a penal statute must
“define the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a manner
that does not encourage arbitrary and discriminatory enforcement,”
Kolender v. Lawson, 461 U.S. 352, 357 (1983); accord United States v.
Demott, 906 F.3d 231, 237 (2d Cir. 2018).
While the vagueness of a statute implicating First Amendment
rights will be assessed on its face, where, as here, no such rights are at
issue, we assess the vagueness of a challenged statute as applied to
defendant’s particular case. See Maynard v. Cartwright, 486 U.S. 356,
361 (1988); United States v. Holcombe, 883 F.3d 12, 17 (2d Cir. 2018). In
doing so, we are mindful that courts have uniformly rejected
44
vagueness challenges both to § 66626 and to the FCPA.27 Ng’s
vagueness challenges warrant no different conclusion.
Section 666 prohibits corruptly giving anything of value to any
person with intent to influence or reward an agent of an organization
in connection with any business or transaction of that organization
having a value of $5,000 or more. See supra at note 12. The FCPA
prohibits corruptly paying anything of value to the officer or
employee of a foreign international organization for purposes of, inter
alia, influencing any act or decision of such person in his official
capacity in order to obtain, retain or direct business. See supra at note
20. The language of these statutes is adequate to alert a reasonable
person to the illegality of Ng’s conduct here and to avoid arbitrary
enforcement of these laws against him.
The trial evidence showed that over a period of five years, Ng
paid more than a million dollars to U.N. Ambassadors Lorenzo and
Ashe (the latter of whom also served for a time as President of the
26See United States v. Rosen, 716 F.3d 691, 699–701 (2d Cir. 2013) (rejecting
vagueness challenge to quid pro quo element of crimes of conviction, including
§ 666); United States v. Brunshtein, 344 F.3d 91, 98 (2d Cir. 2003) (rejecting vagueness
challenge to federal‐nexus requirement of § 666); United States v. Crozier, 987 F.2d
893, 900 (2d Cir. 1993) (rejecting vagueness challenge to mens rea requirement of
§ 666).
See United States v. Esquenazi, 752 F.3d 912, 929 (11th Cir. 2014) (rejecting
27
vagueness challenge to FCPA definition of “foreign official” to include any
“instrumentality” of foreign government); United States v. Kay, 513 F.3d 432, 441–
42 (5th Cir. 2007) (rejecting vagueness challenge to “obtaining or retaining”
business requirement of FCPA).
45
General Assembly) in order for them to use their influence (and that
of other U.N. employees) to procure a formal contract with the U.N.
designating Ng’s Macau Convention Center as the permanent site for
UNOSSC’s annual Expo. Ng can hardly claim that he lacked notice
that such payments were things “of value,” 18 U.S.C. § 666(a)(2); 15
U.S.C. §§ 78dd‐2(a), 78dd‐3(a); that a U.N. contract was a
“transaction,” 18 U.S.C. § 666(a)(2), or “business,” 15 U.S.C. §§ 78dd‐
2(a), 78dd‐3(a), of the organization; or that Lorenzo and Ashe, as
ambassadors accredited to the U.N., or at least Ashe, as President of
the General Assembly, was an “agent,” 18 U.S.C. § 666(a)(2), (d)(1), or
“official,” 15 U.S.C. §§ 78dd‐2(a)(1), 78dd‐3(a)(1), of that organization.
Certainly, Lorenzo testified that he understood that Ng was
corruptly paying him to circumvent the organization’s established
contract process. In these circumstances, Ng does not, and cannot,
claim that a reasonable “ordinary person”—as payor—would not
have had the same awareness. Kolender v. Lawson, 461 U.S. at 357
(reviewing vagueness challenge with reference to whether “ordinary
people can understand what conduct is prohibited”); see Copeland v.
Vance, 893 F.3d 101, 114 (2d Cir. 2018) (noting that whether “ordinary
person” has sufficient notice of prohibited conduct is “objective
inquiry” (internal quotation marks omitted)). Lorenzo further
testified to communications between Ng and Ashe confirming a quid
pro quo arrangement between these men: Ashe conditioned his
support for Ng’s desired contract on Ng’s financial support both for
Ashe personally and for some of his projects as President of the
General Assembly. Ng’s own awareness that payments he made in
46
these circumstances were unlawful, is evident from his efforts at
concealment, notably, through sham contracts to Lorenzo’s brother
and a no‐show job for Ashe’s wife. It can also be inferred from Ng’s
direction that Lorenzo and Ashe use their unique ambassadorial
authority not only to place a document in the official U.N. record but
also, thereafter, to tamper with that document to Ng’s advantage.
Ng’s knowledge that he was engaged in prohibited quid pro quo
bribery is further evident from his threat to cancel further payments
to Lorenzo unless he quickly secured the desired formal U.N.
designation, as well as from Ng’s further cash payment to Ashe as an
added inducement to secure the UNOSSC designation. Indeed, Ng
can hardly claim that he lacked notice that he was engaged in
unlawful bribery when, within days of his meeting Ashe’s demand
for a $200,000 “concert” payment, UNOSSC advised him that, at
Ashe’s behest, the desired contract would at last be finalized.
In sum, as applied to this case, § 666 and the FCPA both provide
adequate notice to a reasonable person in Ng’s position that the
payments made to Lorenzo and Ashe were unlawful bribery, and
present no risk of arbitrary enforcement. See Mannix v. Phillips, 619
F.3d 187, 197 (2d Cir. 2010) (“The touchstone of the notice prong is
whether the statute, either standing alone or as construed, made it
reasonably clear at the relevant time that the defendant’s conduct was
criminal.” (internal quotation marks omitted)). Accordingly, no
application of McDonnell’s “official act” standard is necessary to
avoid unconstitutional vagueness.
47
b. Representative Government and Federalism
Ng next argues that our particular federalist and representative
government structure compels application of McDonnell’s official act
standard in this case. McDonnell observed that the “basic compact
underlying representative government assumes that public officials
will hear from their constituents and act appropriately on their
concerns.” McDonnell v. United States, 136 S. Ct. at 2372 (emphasis in
original). Thus, the “official act” element of § 201 could not be
construed so broadly that government officials “might wonder
whether they could respond to even the most commonplace requests
for assistance, and citizens with legitimate concerns might shrink
from participating in democratic discourse.” Id. Nor could it be
construed to invite unauthorized federal interference in states’ ability
to set standards of good government. See id. at 2373; see generally
Gregory v. Ashcroft, 501 U.S. at 460 (recognizing that sovereign defines
itself “[t]hrough the structure of its government, and the character of
those who exercise government authority”); The Federalist No. 51, at
323 (James Madison) (C. Rossiter ed., 1961) (“In the compound
republic of America, the power surrendered by the people is first
divided between two distinct governments, and then the portion
allotted to each subdivided among distinct and separate departments.
Hence a double security arises to the rights of the people. The
different governments will control each other, at the same time that
each will be controlled by itself.”).
Those concerns, however, do not pertain to the FCPA. None of
its prohibitions operate within our federalist structure of
48
representative government. Rather, it prohibits bribery with respect
to officials of foreign governments or public international
organizations, whose structure is no part of our constitutional
concern.
The same conclusion applies for § 666 as applied to non‐
government “organizations.” Not only is the U.N. a public
international organization outside our federalist structure, but also, it
is not an entity subject to the “basic compact” of representative
government. Its members are equal sovereigns, not elected
representatives. U.N. ambassadors represent sovereign nations, not
an electorate, and owe no duty to hear from or act on the requests of
private persons.
To be sure, § 666 also proscribes bribery with respect to the
agents of State and local governments. Thus, in generally construing
its quid pro quo prohibitions, we are respectful of federalism and
principles of representative government. Nevertheless, we conclude
that McDonnell’s constitutional concerns simply do not arise in the
context of that statute.
At issue in McDonnell was the general federal bribery statute,
18 U.S.C. § 201, a broad construction of which, when applied to State
officials, risked trenching on the States’ “prerogative to regulate the
permissible scope of interactions between state officials and their
constituents.” McDonnell v. United States, 136 S. Ct. at 2373. The
Supreme Court did not hold that Congress necessarily lacked the
power to legislate in that area. See Gregory v. Ashcroft, 501 U.S. at 460
49
(observing that “[a]s long as it is acting within the powers granted it
under the Constitution, Congress may impose its will on the States”).
It held only that Congress had not expressly done so in § 201, a statute
that, by its terms, applies to federal officials, but whose definition of
bribery was borrowed by the parties in McDonnell to delineate the
charged honest services fraud by a state Governor. It is in that context
that the Supreme Court declined to construe § 201 bribery in a way
that disrupted the federalism balance, particularly because “a more
limited interpretation of ‘official act’ is supported by both text and
precedent.” McDonnell v. United States, 136 S. Ct. at 2373; see Gregory
v. Ashcroft, 501 U.S. at 460 (stating that courts “must assume Congress
does not exercise lightly” its power to legislate in areas “traditionally
regulated by the States”).
Section 666 presents different text in a different context. First,
in § 666, Congress expressly states its intent to reach bribery within
State and local governments insofar as they receive federal funding.
Thus, to this extent, it was expressly recalibrating the federalism
balance. Second, Congress does not use intent to influence an “official
act” to limit the bribery proscribed; rather, § 666 more broadly
prohibits offering “‘anything of value’” to the agent of an
organization or State or local government “in exchange for the
influence or reward” in connection with any business, transaction, or
series of transactions of the organization or government. Salinas v.
United States, 522 U.S. at 56.28 Third, the circumstances Congress does
28 Section 666’s enactment was prompted by a circuit split as to whether
State, local, or organizational employees could be considered “public officials”
50
use to cabin the State, local, and organizational bribery proscribed by
§ 666 are (a) the organization or government entity at issue must
receive more than $10,000 in federal funding benefits over the course
of a year, and (b) the business or transaction intended to be influenced
must have a value of $5,000 of more. See 18 U.S.C. § 666(a), (b).
Given the ever‐growing dependency of State and local
governments on federal funding, the limiting effect of these
requirements may appear minimal. Nevertheless, Congress’s “power
to keep a watchful eye on [its] expenditures and on the reliability of
those who use public money” cannot be disputed; such power “is
bound up with congressional authority to spend in the first place.”
Sabri v. United States, 541 U.S. 600, 608 (2004). Thus, just as Congress
did not sweep too broadly by not requiring a nexus between the
bribery proscribed by § 666 and federal funding, see id. at 605–06, it
did not impermissibly intrude on a State’s own policy choices when,
in keeping watch on recipients of federal funding, it did not limit
§ 666 bribery to the “official act” definition of § 201(a)(3), see id. at 608
under 18 U.S.C. § 201(a). See Salinas v. United States, 522 U.S. at 58 (collecting cases
evidencing split). Without waiting for the Supreme Court’s resolution of that issue
in Dixson v. United States, 465 U.S. 482, 490–97 (1984) (construing “public officials,”
as used in § 201(a) to include corporate officers having operational responsibility
for administration of federal housing grant), Congress enacted § 666 “to extend
federal bribery prohibitions to bribes offered to state and local [and
organizational] officials employed by agencies receiving federal funds.” Salinas v.
United States, 522 U.S. at 58. In doing so, however, Congress did not replicate
§ 201’s definition of bribery, or even mention “official act.” Rather, it employed
“expansive, unqualified language, both as to the bribes forbidden and the entities
covered.” Id. at 56.
51
(stating that “Congress was within its prerogative to protect [federal]
spending objects from the menace of local administrators on the
take”); see also id. at 606 (observing, in rejecting urged nexus
requirement, that “[m]oney is fungible, bribed officials are
untrustworthy stewards of federal funds, and corrupt contractors do
not deliver dollar‐for‐dollar value”).
In sum, we conclude that no McDonnell “official act”
instruction was required for the § 666 and FCPA crimes charged in
this case because those statutes define bribery more expansively than
§ 201(a)(3), the textual source for the McDonnell standard, and because
none of the constitutional concerns identified in McDonnell—
vagueness, representative government, federalism—requires limiting
§ 666 and FCPA bribery to “official acts.”
Accordingly, because the McDonnell standard does not apply
to the text of either § 666 or the FCPA, the district court did not err in
failing to instruct the jury on that standard for Ng’s FCPA crimes,
and, insofar as the district court did charge “official acts” for Ng’s
§ 666 crimes, for reasons stated in the next section of this opinion, we
identify no McDonnell error warranting vacatur in any event.
52
McDonnell Error in the Challenged § 666 Jury Charge
Was Harmless
The Charging Error
The district court charged the jury that to convict Ng on any of
the § 666 charges,
The government must prove that the defendant acted
with the intent to obtain “an official act” from the agent
or agents of the United Nations to whom he gave or
agreed to give or offered something of value.
An official act is a decision or action that must involve a formal
exercise of power. It also must be specific and focused on
something that is pending or may by law or rule be brought
before the agent. The decision or action may include using
the agent’s official position to exert pressure on another
official to perform an official act or to advise another
official, knowing or intending that such advice will form
the basis for an official act by another official.
Expressing support for an idea, setting up a meeting,
talking to another official, or organizing an event or
agreeing to do so without more does not fit that
definition of official act. This is not to say that expressing
support for any idea, setting up a meeting, hosting an
event, or making a phonecall is always an innocent act or
is irrelevant. These actions could serve as evidence of (1)
an agreement to take an official act, (2) an attempt to use
the agent’s official position to exert pressure on another
official to perform an official act, or (3) an attempt to
advise another official knowing or intending that such
53
advice will form the basis of an official act by another
official.
Trial Tr. at 4243–44 (emphasis added).
Ng argues that the quoted instruction—particularly the
highlighted portion—was erroneous because it conflates the two
McDonnell requirements for an official act. Whereas McDonnell states
that it is the identified “question, matter, cause, suit, proceeding or
controversy” component of an “official act” that must involve the
“formal exercise of governmental power,” and be “something specific
and focused that is ‘pending’ or ‘may by law be brought before any
public official,’” McDonnell v. United States, 136 S.Ct. at 2372‐75, the
district court here instructed the jury that it was the “decision or
action” taken on such “question, matter, cause, suit, proceeding or
controversy” that must have these attributes. Ng maintains this
allowed the jury to convict for any “specific action” that “’focused on’
virtually anything that was pending or that the UN might one day
consider”—no matter how ill defined. Appellant Br. at 42.
We identify charging error—but not for the reason Ng argues.
As just explained, the “official act” requirement that McDonnell
locates in § 201(a)(3) is not a part of § 666. Thus, the district court
should not have charged “official act” at all as to the § 666 counts in
this case. It sufficed for the district court to charge the requisite quid
pro quo as it initially did:
[T]he government must prove beyond a reasonable doubt
. . . that the defendant gave or agreed to give or offered
54
something of value to the agent with the intent to influence
the agent’s actions in connection with some sort of
business transaction of the United Nations.
Trial Tr. at 4242.
Harmlessness
Insofar as the district court mistakenly charged the jury that it
was further required to find that the action Ng intended to influence
was an “official action,” we conclude that the error was harmless
beyond a reasonable doubt. Where a jury returns a guilty verdict on
instructions requiring it to find proved more than the law requires, a
court can generally conclude that the jury would also have returned
a guilty verdict on proper instructions omitting the unwarranted
element. That is the case here. The jury, having found proved—in
addition to all the other elements of § 666—that Ng intended to
influence action amounting to an “official act,” we easily conclude
that it would have found that Ng intended to influence action not
limited by such a heightened quid pro quo requirement. Cf. Musacchio
v. United States, 136 S. Ct. 709, 715 (2016) (“[W]hen a jury instruction
sets forth all the elements of the charged crime but incorrectly adds
one more element, a sufficiency challenge should be assessed against
the elements of the charged crime, not against the erroneously
heightened command in the jury instruction.”).
Nor is a different conclusion warranted because Ng argues that
the jury’s “official act” finding is the product of a jury charge and
evidence not satisfying McDonnell. We need not here decide under
55
what circumstances, if any, harmless error can be identified when a
jury finds a defendant guilty based on an additional, unnecessary
element infected by such purported McDonnell errors. Ng’s charging
and sufficiency challenges are meritless, and, thus, they cannot deter
a finding of harmless error in the giving of an unwarranted McDonnell
instruction.29
As to charging error, the record belies Ng’s conflation
hypothesis. The pleadings, evidence, and arguments all identify a
single, overriding “question, matter, [or] cause” informing the alleged
official actions in this case: procurement of formal U.N. designation
of Ng’s Macau convention center as the permanent site for the
UNOSSC Expo.30 This objective undoubtedly presented a specific
and focused “question, matter, [or] cause,” requiring the formal
It is for this reason that we address Ng’s McDonnell arguments. We
29
cannot agree with our concurring colleague that the exercise is unnecessary and
merely academic.
30 See, e.g., App’x 164–65 (stating, in Superseding Indictment, that
defendant’s “principal objective . . . was to obtain official action from the UN with
respect to a multi‐billion dollar conference center, . . . [i]n particular, . . . formal UN
support for the Macau Conference Center, including establishing the [Center] as
the permanent site of the annual UNOSSC Expo”); Trial Tr. at 80 (stating, in
prosecution opening, that “[y]ou will see that each of the actions that these
ambassadors took on [Ng’s] behalf moved the defendant along a path to his
ultimate goal of a UN center in Macau”); id. at 652, 671 (Lorenzo testifying that
what Ng sought was “an official document from the United Nations,” “a contract”
for use of the Macau convention center); id. at 3954 (stating, in prosecution
summation, that defendant paid bribes “in exchange for the ambassadors getting
the UN to approve a massive United Nations convention center in Macau”).
56
exercise of U.N. power to achieve Ng’s goal. See McDonnell v. United
States, 136 S.Ct. at 2374 (contrasting “nebulous” policy objective, such
as general “business and economic development,” which would not
qualify as official action, with question whether to initiate particular
research study, which would). In these circumstances, we agree with
the government that no reasonable jury could identify a decision or
action on this question as focused, specific, pending, and a formal
exercise of U.N. power, without also finding that the question
exhibited these attributes. Thus, any imprecision in the challenged
charge’s discussion as between the “question” and “decision”
requirements of the McDonnell standard did not mislead or misinform
the jury in finding an “official act” in this case.31
31 That conclusion is reinforced by the district court’s specific instruction
precluding the jury from finding an official act based only on “[e]xpressing
support for an idea, setting up a meeting, talking to another official, or organizing
an event or agreeing to do so without more.” Trial Tr. at 4244; see supra at pp. 53–
54. McDonnell signals that such an instruction serves usefully to cabin both the
“question” and “decision” parts of the “official act” test. See McDonnell v. United
States, 136 S. Ct. at 2368 (acknowledging that “it may be difficult to define the
precise reach” of terms such as “‘question, matter, case, suit, proceeding or
controversy,’” but stating that “it seems clear that a typical meeting, telephone call,
or event arranged by a public official” does “not sweep so broadly”); id. at 2371
(“Setting up a meeting, hosting an event, or calling an official (or agreeing to do
so) merely to talk about a research study or to gather additional information, . . .
does not qualify as a decision or action on the pending question of whether to
initiate the study.”). In the absence of any such instruction in McDonnell, and with
the government there urging the jury to find a § 201 “official act” based only on
meetings and calls, the Supreme Court concluded that the charging error there
could not be deemed harmless. See id. at 2375. By contrast, where, as here, the
alleged McDonnell charging error is more one of imprecision than
mischaracterization, the evidence of a specific and focused question is
57
As for sufficiency, overwhelming record evidence, much of it
documented, allowed a reasonable jury to find not only that Ng’s
efforts to procure a U.N. contract for his convention center presented
a specific and focused question, but also that the question was one
that could be—and was—brought before a U.N. official. Compelling
evidence further showed that the official, UNOSSC Director Zhou,
exercised formal organization power when, on December 25, 2014,
“on behalf of the United Nations,” he signed the Pro Bono Agreement
between Ng’s company SKI and UNOSSC. App’x 1836‐48. Whether
or not the Agreement secured all that Ng desired is beside the point.
What matters is that, by entering into such a contract on behalf of the
U.N., Zhou took an official action. Evidence further proved that it
was as a result of Ng’s payments that Lorenzo and Ashe used their
official positions at the U.N. to influence Zhou to take that action. Not
only did Lorenzo so testify, but Zhou himself, in a June 13, 2014 letter
to Lorenzo, specifically referenced Ashe’s “support for Ng’s
convention center in reporting that UNOSSC was now ready to enter
into a formal agreement for SKI to host the 2015 Expo. App’x 1641.
The letter is dated only ten days after Ng complied with Ashe’s
request for $200,000. And in a February 2, 2015 letter formally
inviting Ng’s companies to host the U.N.’s 2015 Expo, Zhou stated
that General Assembly President Ashe had “been calling upon my
overwhelming, the district court specifically safeguarded against the jury relying
on meetings or calls to find “official act,” and the government did not argue for
such a finding, we confidently conclude that Ng’s instructional challenge is
meritless.
58
office to step up the efforts to support the early implementation of . . .,
in particular, the Permanent Expo and Meeting Centre in Macao.” Id.
at 1525.
Other record evidence also shows how Lorenzo and Ashe used
their official positions at the U.N. to enhance the likelihood that Zhou
would follow their advice to have the U.N. enter into a contract with
Ng. This began with the working sessions that Lorenzo organized for
U.N. ambassadors so that he and Ashe could then place a letter into
the General Assembly record—something only U.N. ambassadors
could do—for circulation throughout the membership, documenting
purported ambassadorial agreement for the designation of an Expo
site. It continued with Lorenzo and Ashe effectively tampering with
the U.N. record under the guise of a “technical” amendment. In this
way, they modified the original letter to add language indicating that
an agreement had already been reached for using Ng’s company, SKI,
to implement the desired permanent Expo site. See supra at pp. 9–10.
That this alteration was used to influence Zhou’s subsequent contract
decision is evident from the fact that Zhou referenced the Revised
U.N. Document as a predicate for UNOSSC’s support for designation
of Ng’s center. See App’x 1642 (observing that Revised U.N.
Document “clearly state[s] that [SKI] is tasked to establish the
Permanent Expo and Meeting Centre” (emphasis added)); see supra at
p. 12. Thus, we need not resolve the parties’ dispute as to whether
any of these additional actions could themselves qualify as “official
acts” under McDonnell. They reinforce the conclusion that Zhou’s
entry into the December 25, 2014 Pro Bono Agreement was an official
59
action that, because influenced by Lorenzo and Ashe in their official
capacities, satisfied the second McDonnell requirement for an “official
act.”
In sum, Ng’s McDonnell challenge to the jury charge fails
because McDonnell’s “official act” standard does not apply to § 666
and the FCPA. To the extent the district court nevertheless applied
that standard in charging the jury as to the quid pro quo element of
Ng’s § 666 crimes, it was error to do so. That error, however, was
harmless beyond a reasonable doubt because the jury, having found
more proved than required by law—i.e., the intent to influence an
“official act”—it certainly would have found Ng guilty on proper
instructions omitting that inapplicable standard. Finally, no different
conclusion is warranted by Ng’s charging and sufficiency challenges
based on McDonnell; those challenges are meritless.
The “Corruptly” Challenge
When a statute uses the word “corruptly,” the government
must prove more than the general intent necessary for most crimes.
It must prove that a defendant acted “with the bad purpose of
accomplishing either an unlawful end or result, or a lawful end or
result by some unlawful method or means.” United States v. McElroy,
910 F.2d 1016, 1021–22 (2d Cir. 1990); see Arthur Andersen LLP v. United
States, 544 U.S. 696, 705 (2005) (stating that “‘[c]orrupt’ and ‘corruptly’
are normally associated with wrongful, immoral, depraved, or evil”
intent). Ng argues that to find him to have acted “corruptly” in
violation of either § 666 or the FCPA, the jury was required to find
60
something more, specifically, his intent to have Lorenzo or Ashe
breach an “official duty” owed to the U.N. Ng faults the district court
for failing to instruct the jury as to this component of the “corruptly”
element of these statutes.32 Further, he maintains that the record
evidence was insufficient, as a matter of law, to permit a reasonable
jury to find that he acted corruptly because the government never
proved a particular duty owed by Lorenzo or Ashe to the U.N.
Ng’s arguments are defeated by precedent. In United States v.
Kozeny, 667 F.3d 122 (2d Cir. 2011), this court upheld an instruction
on the “corruptly” element of an FCPA crime that made no mention
of breach of duty. The instruction charged simply as follows:
A person acts corruptly if he acts voluntarily and
intentionally, with an improper motive of accomplishing
either an unlawful result or a lawful result by some
unlawful method or means. The term “corruptly” is
intended to connote that the offer, payment, and promise
was intended to influence an official to misuse his official
position.
32 On the § 666 crimes, the district court instructed the jury that to act
“corruptly” means to act “voluntarily and intentionally with an improper motive
or purpose to influence or reward John Ashe’s and/or Francis Lorenzo’s actions,”
which involves “conscious wrongdoing or, as has sometimes been expressed, a
bad or evil state of mind.” Trial Tr. at 4242. On the FCPA charges, the district
court instructed that to find Ng acted “corruptly,” the jury had to be persuaded
beyond a reasonable doubt that he acted “voluntarily and intentionally, with a bad
purpose or evil motive of accomplishing either an unlawful result or a lawful
result by some unlawful method or means,” and intending “to influence the
foreign official to misuse his or her official position.” Id. at 4252.
61
Id. at 135. In a § 666 case, this court similarly upheld a charge that
made no mention of breach of duty in instructing that a person acted
“corruptly” if he acted “voluntarily and intentionally and with the
purpose, at least in part, of accomplishing either an unlawful end
result or a lawful end result by some unlawful method or means.”
United States v. Bonito, 57 F.3d 167, 171 (2d Cir. 1995). In then giving
an example, this court referenced a briber’s intent to influence the
recipient’s “official duties,” but nowhere required an intended
breach. Id. (“A person acts corruptly, for example, when he gives or
offers to give something of value intending to influence or reward a
government agent in connection with his official duties.”).
More instructive still is United States v. Alfisi, wherein this court
expressly declined to construe the term “corruptly”— there, as used
in the general bribery statute, 18 U.S.C. § 201(b)(1)(A)— to “require[]
evidence of an intent to procure a violation of the public official’s
duty.” 308 F.3d 144, 150 (2d Cir. 2002). Alfisi held that the defendant
could be found guilty of bribing a federal produce inspector even if
the monies paid were intended to ensure only that the official
accurately inspected and reported on the produce at issue. This court
explained that what the statute outlawed were “payments made with
a corrupt intent . . . ‘to influence any official act.’” Id. at 150–51
(quoting § 201(b)(1)(A) to identify quid pro quo at issue). To cabin the
“corruptly” element further, to require an intent not only to influence
an official act, but also to secure breach of an official duty, risked
“underinclusion,” particularly where “official duties require the
exercise of some judgment or discretion.” Id. at 150. To illustrate,
62
Alfisi cited the example of a litigant who paid a judge in exchange for
a favorable decision. “[T]hat conduct would—and should—
constitute bribery,” even if it could subsequently be shown that “the
judgment was on the merits legally proper.” Id.
Alfisi’s conclusion that the “corruptly” element of bribery does
not invariably require intent to secure a breach of duty finds further
support in the fact that § 201(b) separately proscribes corruptly
paying a public official with intent “to influence any official act,” and
making such a payment with intent “to induce such public official to
“act in violation of [his] lawful duty.” Compare 18 U.S.C.
§ 201(b)(1)(A), with id. § 201(b)(1)(C); see United States v. Alfisi, 308 F.3d
at 151 n.3 (recognizing overlap in these two sections and observing
that “resort to (A) seems most appropriate in the case of bribes
regarding decisions involving the exercise of judgment or discretion,
such as judicial decisions or produce inspections, while use of (C)
would be most appropriate in the case of bribes to induce actions that
directly violate a specific duty, such as a prison guard’s duty to
prevent the smuggling of contraband”). The FCPA makes a similar
distinction. Compare 15 U.S.C. § 78dd‐2(a)(1)(A)(i), with id. § 78dd‐
2(a)(1)(A)(iii); see supra at note 20.
United States v. Rooney, 37 F.3d 847 (2d Cir. 1994), a § 666 case
relied on by Ng, warrants no different conclusion. Although this
court there observed that “a fundamental component of a ‘corrupt’
act is a breach of some official duty owed to the government or the
public at large,” id. at 852, it did so in highlighting the absence of any
pertinent duty in that case, see id. at 850, 853 (observing that private
63
manager of private development project that “happen[ed] to have”
federal agency as its lender, “was under no duty to the government
either to apply or not to apply for . . . supplemental government
funds” to pay contractor and, thus, did not “breach[] any duty he
owed the government when he conditioned further loan requests and
thus prompter payment” upon contractor’s performance of
additional work at no cost). Rooney elsewhere makes plain that a
public official acts corruptly, whenever he “accept[s] or demand[s] a
personal benefit intending to be improperly influenced in [his] official
duties.” Id. at 853 (emphasis added) (stating that “[i]t is an obvious
violation of duty and public trust for a public official” to act with that
intent).33
Alfisi applies this same reasoning to the person paying the
bribe. He acts corruptly under § 201(a)(1)(A) if he pays a government
official intending “to influence any official act,” whether or not the
33 While Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders In
Het Kapitaal Van Saybolt Int’l B.V. v. Schreiber (“Stichting”), 327 F.3d 173 (2d Cir.
2003), quotes Rooney’s observation about breach of duty being “‘a fundamental
component of a “corrupt” act,’” id. at 182 (quoting United States v. Rooney, 37 F.3d
at 852), it does so only in the context of concluding that a plaintiff who pleaded
guilty to an FCPA crime was not estopped from maintaining a malpractice action
against the attorney who purportedly advised him that his actions did not violate
the law. This court distinguished the “corruptly” element of an FCPA crime,
which was established by the guilty plea, from plaintiff’s professed lack of
knowledge in violating the FCPA. See id. It was in that context that Stichting
quoted not only Rooney, but also United States v. Zacher, 586 F.2d at 915, which
suggests that “corruption” and “breach of duty” are not necessarily synonymous.
See Stichting, 327 F.3d at 182 (quoting Zacher stating that “common thread that runs
through common law and statutory formulations of the crime of bribery is the
element of corruption, breach of trust, or violation of duty” (emphasis added)).
64
intent is “to procure a violation of the public official’s duty.” United
States v. Alfisi, 308 F.3d at 150. Thus, there was no instructional error.
Nor was the evidence insufficient to allow a reasonable jury to
find that Ng acted corruptly. Ng argues that the government “did not
introduce any evidence at trial describing any duties that Ashe and
Lorenzo may have owed to the UN or the public, let alone any
evidence that Ng sought to induce them to breach any such duty.”
Appellant Br. at 46–47 (emphasis in original). The second part of this
argument fails for reasons just explained: the “corruptly” element of
the crimes of conviction does not require proof of a breach of duty.
As for Ng’s sufficiency challenge to evidence of duty, we need not
here decide what, if any, duties ambassadors accredited to the U.N.
owe to that organization34 because the evidence here showed that, at
times pertinent to the charged crimes, Ashe served not only as an
ambassador to the U.N., but also as an official of that organization,
indeed, its second highest official, the President of the General
Assembly. Viewing the evidence in the light most favorable to the
government, a reasonable jury could find that, at least in that role,
34 For instance, we need not decide whether U.N. ambassadors act
“corruptly” vis‐à‐vis the U.N. when, as Lorenzo and Ashe did here, they
effectively sold to Ng the unique ability afforded accredited ambassadors by the
U.N. to place documents into the official General Assembly record. Such a
conclusion appeals, however, particularly in light of Lorenzo’s and Ashe’s
subsequent breach of that trust to tamper with the original U.N. Document and,
thus, with the official U.N. record, thereby influencing Zhou’s ultimate contract
action. See supra at pp. 9–10, 13–14.
65
Ashe was an agent of the U.N. and, as such, owed a duty to that
organization not to sell his ability to influence subordinate U.N.
employees in entering into transactions or business arrangements for
the U.N. See id. at 151; see also United States v. Zacher, 586 F.2d at 916
(observing that bribery encompasses, in addition to acts entailing
either a breach of trust or duty, “the corrupt selling of what our
society deems not to be legitimately for sale[:] the Senator’s vote, the
citizen’s ballot, the labor leader’s negotiating position or the
employee’s actions taken on behalf of an employer”). Thus, a
reasonable jury could find that Ashe misused his position as President
of the General Assembly when he accepted hundreds of thousands of
dollars from Ng in return for being influenced—in turn—to use his
influence with Zhou to procure the Pro Bono Agreement between
Ng’s company and the U.N. See United States v. Rooney, 37 F.3d at 853.
Whether the decision to enter into such an agreement itself
represented the breach of any duty is irrelevant. It was corruptly
influenced by Ng’s payment. See United States v. Alfisi, 308 F.3d at 150.
Accordingly, there is no merit to Ng’s charging or sufficiency
challenges as to the “corruptly” element of the crimes of conviction.
The “Obtaining or Retaining Business” Challenge
The FCPA prohibits bribing foreign officials for the purpose of
“obtaining or retaining business for or with, or directing business to,
any person.” 15 U.S.C. §§ 78dd‐2(a)(1)(B), 78dd‐3(a)(1)(B). Although
the district court tracked this statutory language in charging the jury,
Ng argues that it erred in rejecting his request to define “business” as
66
“commercial” business. Trial Tr. at 3843. According to Ng, the given
instruction was erroneous because the jury had “no way to know
whether ‘business’ referred to commercial business or more broadly
to any transaction.” Appellant Br. 54. Moreover, Ng argues that the
trial evidence was insufficient for the jury to find this “business”
element because he intended to build the convention center and to
make it available for UNOSSC use at no cost to the U.N.
These arguments merit little discussion. Assuming arguendo
that Congress intended to limit the FCPA to “commercial bribery,”
United States v. Kay, 359 F.3d 738, 746–47 (5th Cir. 2004), a reasonable
jury would so understand from the statutory text. While “business”
can refer to any productive activity, a reasonable jury, instructed as
here to consider the word in the context in which it is used in the
FCPA, i.e., “obtaining or retaining business for, or with, or directing
business to, any person,” Trial Tr. at 4257–58 (emphasis added)
(quoting 15 U.S.C. §§ 78dd‐2(a)(1)(B), 78dd‐3(a)(1)(B)), would need
no further instruction to understand it to bear the common meaning
of “commercial or mercantile activity,” Webster’s Third New Int’l
Dictionary (2002).
Moreover, the record evidence would allow a reasonable jury
to find that Ng paid the two U.N. ambassadors intending for them to
obtain a commercial business deal with the U.N., specifically, a
contract for his Macau Conference Center to serve as the official host
site for the U.N.’s UNOSSC Expo. Ng does not dispute that contracts
are a routine tool in obtaining, maintaining, and directing commercial
business. See generally United States v. Kay, 359 F.3d at 748 (referencing
67
corporate payments to assist in obtaining government contracts as
one abuse informing FCPA). Indeed, at his request, the district court
charged the jury that “business” includes “the execution or
performance of contracts.” Trial Tr. at 4257; App’x 329. Nevertheless,
Ng argues that a contract, such as the Pro Bono Agreement, which
imposed no monetary obligations on the U.N., cannot be deemed to
have obtained “commercial” business for him.
Ng’s argument fails because the FCPA prohibits commercial
bribery without regard to whether the briber himself profits directly
from the business obtained. Indeed, it prohibits bribery designed to
obtain, retain, or direct business not only for or to the briber, but for or
to “any person.” 15 U.S.C. §§ 78dd‐2(a)(1)(B), 78dd‐3(a)(1)(B). Here,
“any person” could refer to the U.N. A reasonable jury could find Ng
guilty under the FCPA for bribing Lorenzo and Ashe in return for
them using their influence to direct Ng’s business to the U.N.,
specifically, his willingness contractually to obligate himself to
provide the U.N. with the cost‐free use of his Macau convention
center as its permanent UNOSSC Expo site. While such a contract, on
its face, might appear to give all commercial benefits to the U.N., the
jury could find that by thus using bribery to direct his own business
obligation to the U.N., Ng thought he would best be able to obtain
greater business for and, thus, to maximize profits from, the larger
commercial complex of which the convention center was a part. Thus,
his sufficiency challenge to the business purpose component of the
FCPA crimes also fails.
68
Ng’s Derivative Arguments
Because Ng’s challenges to his § 666 and FCPA convictions are
meritless, so too are his derivative challenges to his money laundering
convictions.
CONCLUSION
To summarize, we conclude as follows:
1. The word “organization” as used in 18 U.S.C. § 666, and
defined by 1 U.S.C. § 1 and 18 U.S.C. § 18, applies to all non‐
government legal persons, including public international
organizations such as the U.N.
2. The “official act” quid pro quo for bribery as proscribed by
18 U.S.C. § 201(b)(1), defined by id. § 201(a)(3), and explained in
McDonnell v. United States, 136 S. Ct. 2355 (2016), does not delimit
bribery as proscribed by 18 U.S.C. § 666 and the FCPA, 15 U.S.C.
§§ 78dd‐2, 78dd‐3. Thus, the district court did not err in failing to
charge the McDonnell standard for the FCPA crimes of conviction.
3. Insofar as the district court nevertheless charged an
“official act” quid pro quo for the § 666 crimes, that error was harmless
beyond a reasonable doubt because the jury, having found Ng guilty
under the higher McDonnell official act standard, would certainly
have found him guilty under a proper instruction omitting that
unnecessary standard. No different conclusion obtains because Ng
argues that the jury’s “official act” finding was a product of charging
69
error conflating the McDonnell standard and of insufficient evidence,
as these arguments fail on the merits.
4. The jury was not misinstructed as to the “corruptly”
element of § 666 and the FCPA, and the evidence was sufficient to
permit a reasonable jury to find that element proved.
5. The jury was not misinstructed as to the “obtaining or
retaining business” element of the FCPA, and the evidence was
sufficient to permit a reasonable jury to find that element proved.
Accordingly, the judgment of conviction is AFFIRMED in all
respects.
70
18-1725-cr
United States v. Ng Lap Seng
SULLIVAN, Circuit Judge, concurring:
I fully agree with the majority that the official acts requirement set forth in
McDonnell v. United States, 136 S. Ct. 2355 (2016), does not apply to 18 U.S.C. § 666
or the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd‐2, 78dd‐3. I likewise agree
that the district court erred by giving (what turned out to be) an unnecessary
McDonnell instruction. However, that error is clearly harmless, for the reasons set
forth in the majority opinion.
Having reached this conclusion, I see no need to engage in an alternative
holding that essentially hypothesizes what we would have concluded in the event
that McDonnell did apply to § 666. To my mind, this analysis obscures what is
otherwise a clear holding, and since “[i]t has long been [the] considered practice
[of Article III courts] not to decide abstract, hypothetical or contingent questions,”
Ala. State Fed’n of Labor, Local Union No. 103, United Bhd. of Carpenters & Joiners of
Am. v. McAdory, 325 U.S. 450, 461 (1945), I see no reason to engage in an
unnecessary and purely academic McDonnell analysis.
Accordingly, I decline to join in the majority’s alternative McDonnell
holding. In all other respects, I wholly concur in the majority’s excellent opinion.