To prosecute a non-US entity or foreign national for conspiracy to violate the FCPA, the DOJ must prove beyond a reasonable doubt:
- an agreement between two or more persons to commit a criminal act;
- the defendant’s knowing and willful participation in the agreement;
- the commission of an overt act in furtherance of the agreement by any party to the conspiracy; and
- a jurisdictional nexus.1 For more on this requirement, see here.
Conspiracy charges are attractive to prosecutors because:
- the five-year statute of limitations period does not begin until the commission of the last overt act in furtherance of the conspiracy, and
- each member of a conspiracy is liable for the acts of all co-conspirators.2
1 18 USC § 371.
2 Fiswick v. United States, 329 U.S. 211, 216-17 (1946).