Macau billionaire Ng Lap Seng’s conviction on FCPA, money laundering charges affirmed

On August 9, 2019, the United States Court of Appeals for the Second Circuit affirmed Ng Lap Seng’s June 2018 conviction in the US District Court for the Southern District of New York.  Ng, a Chinese real estate developer from Macau, paid over $1 million to two United Nations (UN) officials in exchange for receiving a commitment to permanently hold the UN’s annual South-South Cooperation convention on Ng’s property in Macau.  Ng was convicted after a jury trial of paying and conspiring to pay bribes and of money laundering, in violation of the FCPA and other federal statutes.  Ng was sentenced to 48 months imprisonment, and required to forfeit $1.5 million, pay a $1 million fine, and provide $302,977.20 in restitution to the UN.

On appeal, Ng challenged the jury instructions provided for the FCPA charge, arguing that the quid pro quo element of the FCPA required a thing of value to be offered or provided in exchange for an “official act,” as that term was defined in McDonnell v. United States, 136 S. Ct. 2355 (2016).  In McDonnell, the Supreme Court held that under 18 USC § 201(a)(3)—the general federal bribery statute there at issue—an “official act” required a formal and specific exercise of governmental power.  The Second Circuit contrasted the language of 18 USC § 201(a)(3), which explicitly requires the provision of a thing of value to be made in exchange for an “official act,” with that of the FCPA, which makes no reference to an “official act,” and held that McDonnell’s “official act” standard did not limit the quid pro quo element of the FCPA.

The Second Circuit also rejected Ng’s argument that the UN is not an “organization” within the meaning of 18 USC § 666, holding that “organization” as used in § 666 includes non‐government public international organizations such as the U.N.  Finally, the Second Circuit rejected Ng’s argument that the evidence was insufficient to support a guilty verdict, holding that “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.”

Opinion (2nd Circuit) | Judgment (SDNY)

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