The term foreign official includes officers, employees, and others associated with instrumentalities of foreign governments.  The statute does not define that term.  In the leading case on this issue, United States v. Esquenazi, a panel of the Eleventh Circuit defined instrumentality as “an entity [1] controlled by the government of a foreign country that [2] performs a function the controlling government treats as its own.”1  Relevant factors that determine whether an entity is controlled by a foreign government include:

  • the foreign government’s formal designation of the entity;
  • whether the foreign government holds a majority interest;
  • the foreign government’s ability to hire and terminate officers and directors;
  • the extent to which the foreign government benefits from the profits of the entity;
  • the extent to which the foreign government funds the entity; and
  • the duration of these indicia relative to the life of the entity.

Factors relevant to the determination of whether an entity performs a function a foreign government treats as its own include:

  • whether the entity has a monopoly over its function;
  • whether the government subsidizes the entity’s costs;
  • whether the entity provides services to the public at large in the foreign country; and
  • whether the public and the foreign government perceive the entity as performing a government function.

Enforcement authorities have construed instrumentality broadly to include state-owned and state-controlled enterprises, including utilities and infrastructure companies, oil and gas companies, hospitals, and their respective employees.


1 United States v. Esquenazi, 752 F.3d 912, 925-26 (11th Cir. 2014).


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