THE GEBARDI “PRINCIPLES”

Introduction

In August 2015, District Judge Janet Bond Arterton ruled on a motion to dismiss in the case United States v. Hoskins. 1 1 123 F. Supp. 3d 316, 327 (D. Conn. 2015). ... Close Although trial court decisions generally attract less attention than appellate decisions, Hoskins has since caused ripples in the legal world. 2 2 See infra notes 117–118 and accompanying text (offering examples of the buzz Hoskins created among practitioners and online reporters). ... Close This is primarily because the law underlying the Hoskins case is the Foreign Corrupt Practices Act (FCPA) 3 3 15 U.S.C. §§ 78dd-1 to -3 (2012). ... Close —a piece of federal legislation that has been pushed to the fore in recent years through high-profile investiga­tions and crackdowns on large multinational companies for corrupt acts. 4 4 See, e.g., Richard L. Cassin, Final Settlements for Siemens, FCPA Blog (Dec. 15, 2008, 7:22 pm), http://www.fcpablog.com/blog/2008/12/16/final-settlements-for-siemens.
html [http://perma.cc/SHH2-6HZA] (discussing Siemens’s $800 million settlement with the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) for FCPA violations); Richard L. Cassin, KBR and Halliburton Resolve Charges, FCPA Blog (Feb. 11, 2009, 7:08 pm), http://www.fcpablog.com/blog/2009/2/12/kbr-and-halliburton-resolve-charges.html [http://perma.cc/H9YG-9UTV] (reporting Kellogg Brown & Root LLC and former parent company Halliburton’s $579 million settlement with the DOJ and SEC for FCPA violations); Richard L. Cassin, Total SA Pays $398 Million to Settle U.S. Bribe Charges, FCPA Blog (May 29, 2013, 12:18 pm), http://www.fcpablog.com/blog/2013/5/
29/total-sa-pays-398-million-to-settle-us-bribe-charges.html [http://perma.cc/LL4C-LGJN] (re­porting Total S.A.’s $398 million settlement with the DOJ and SEC for FCPA violations). ... Close

This Note, however, argues that Hoskins is worthy of attention not merely because it involves the FCPA; it is worthy of attention because of its interpretation and application of the Gebardi principle—an exception to the federal general conspiracy 5 5 18 U.S.C. § 371 (2012). ... Close and complicity 6 6 Id. § 2. ... Close statutes that operates in situations in which a strict application of the statutes would frustrate congres­sional intent to immunize certain persons from liability. 7 7 See infra notes 37–38 and accompanying text (introducing the Gebardi principle); see also infra section I.B (detailing the origins of the Gebardi principle). ... Close The Supreme Court first articulated this principle in the case Gebardi v. United States. 8 8 287 U.S. 112 (1932). ... Close In that case, the Court presumed Congress’s intention to immunize the woman transported under the Mann Act 9 9 White-Slave Traffic (Mann) Act, ch. 395, 36 Stat. 825 (1910) (codified as amended at 18 U.S.C. §§ 2421–2424); see also infra text accompanying note 48 (quoting the language of the Mann Act). ... Close from criminal liability and thus held that the conspiracy statute could not be used to frustrate that intent. 10 10 Gebardi, 287 U.S. at 122. ... Close Since the Gebardi principle’s first articulation, however, courts have diverged in the interpretation and application of the principle. 11 11 See infra section II.A (detailing the two divergent forms of the Gebardi principle). ... Close In particular, the briefs submitted by the defendant and the government in Hoskins are encapsulations of the two divergent forms the Gebardi princi­ple has come to take. 12 12 See infra section II.B.3 (comparing the defendant’s and government’s briefs submitted in the Hoskins case). ... Close Further, in holding that nonresi­dent foreign na­tionals are per se never liable as conspirators or accomplices under the FCPA absent direct liability, Hoskins also reflects the practical dangers asso­ciated with the Gebardi principle’s broader variant. 13 13 United States v. Hoskins, 123 F. Supp. 3d 316, 322–23 (D. Conn. 2015). The broader variant, as this Note will explicate further in section II.A.2, is when courts imme­diately turn to extrinsic material to determine whether Congress intended to immunize a certain class of individuals from liability without an eye to the inherent structure of the underlying offense and criminal statute. ... Close This Note terms this as the problem of the Gebardi “principles” and cautions against this broaden­ing in the interpretation and application of the Gebardi principle.

Part I will sketch the legal backdrop for the problem of the Gebardi prin­ciples through a discussion of conspiratorial and accomplice liability under U.S. federal criminal law and the origins of the Gebardi principle. Part II will argue that the current state of the Gebardi principle, or more accu­rately “principles,” is problematic through an examination of the juris­pru­dence on the Gebardi principle, with particular focus on Hoskins. Finally, Part III will propose the solution of narrowly interpreting the Gebardi principle.

I. Federal Criminal Law and the Gebardi Principle

A comprehensive understanding of the Gebardi principle requires an appreciation of how the principle fits within the framework of federal criminal law’s provisions on conspiratorial and accomplice liability. Section I.A introduces how liability for conspiracy and complicity operate in U.S. federal criminal law. Section I.B details the origins of the Gebardi principle as introduced in the Supreme Court decision Gebardi v. United States. 14 14 287 U.S. 112. ... Close This Part focuses on the rule, and the exception to the rule, by explicating the doctrines of conspiracy and complicity and how Gebardi functions as a common law exception to liability.

A. Federal Conspiracy and Complicity Liability

The theories of conspiracy and complicity are fundamental to federal criminal law. Both function as theories of liability that apply broadly and generally across the spectrum of substantive criminal offens­es. Exceptions to the theories’ broad applicability, however, exist and operate to curtail liability in certain situations.

1. Conspiracy. — Under federal law, it is a crime to conspire to commit a substantive offense against the United States. 15 15 18 U.S.C. § 371 (2012). ... Close Conspiracy is an inchoate crime: Liability under the conspiracy statute does not require the under­lying substantive offense to have materialized, 16 16 E.g., Salinas v. United States, 522 U.S. 52, 65 (1997) (“It is elementary that a conspiracy may exist and be punished whether or not the substantive crime ensues . . . .” (citing Callanan v. United States, 364 U.S. 587, 594 (1961))). ... Close as conspiracy is a distinct and separate offense. 17 17 E.g., United States v. Rosbottom, 763 F.3d 408, 418 (5th Cir. 2014) (“‘It is settled law that conspiring to commit a crime is an offense wholly separate from the crime which is the object of the conspiracy.’” (quoting United States v. Threadgill, 172 F.3d 357, 367 (5th Cir. 1999))). ... Close As Justice Holmes once stated: “A conspiracy is a partnership in criminal purposes.” 18 18 United States v. Kissel, 218 U.S. 601, 608 (1910). ... Close The focus of the of­fense is the part­nership—“the agreement to commit a crime”—and not the underlying offense itself. 19 19 Sanford H. Kadish et al., Criminal Law and Its Processes: Cases and Materials 703 (9th ed. 2012). ... Close This is a policy choice that Congress made based on an acknowledgement of the “special danger” group criminal activities pose. 20 20 Id. at 704 (internal quotation marks omitted). ... Close

The force of conspiratorial liability in federal criminal law lies in its general applicability—it applies to “any offense against the United States.” 21 21 See 18 U.S.C. § 371 (2012). ... Close In Pinkerton v. United States, the Supreme Court held that a con­spiracy charge would generally not be merged into the charge for the underlying offense. 22 22 328 U.S. 640, 643 (1946) (noting exceptions to conspiratorial liability are of “lim­ited character”). ... Close Double jeopardy has no applicability as a defense against a conviction for the commission of the substantive offense and for a conspiracy to commit the substantive offense because each convic­tion is legally distinct. 23 23 Id. at 643–44 (highlighting the absence of a double jeopardy defense because conspiracy “has ingredients, as well as implications, distinct from the completion of the unlawful project”). ... Close

2. Complicity. — Federal criminal law also proscribes complicit behav­ior in the commission of substantive offenses. 24 24 18 U.S.C. § 2. ... Close In the words of the com­plicity statute: “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission . . . [or] willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” 25 25 Id. ... Close In other words, in the realm of federal criminal law, there are two ways an individual can be held liable for a substantive offense: by directly committing the offense as a principal or by being complicit with the principal, in which case the law would deem the accomplice to have committed the underlying offense as if she were the principal. 26 26 See, e.g., United States Court of Appeals for the Third Circuit, Model Criminal Jury Instructions § 7.02, http://www.ca3.uscourts.gov/sites/ca3/files/Chap%207%20July%202014%
20Rev.pdf [http://perma.cc/YXJ2-M3TX] (last visited Sept. 15, 2016) (“A person may be guilty of an offense(s) because (he) (she) personally committed the offense(s) (himself) (herself) or because (he) (she) aided and abetted another person in committing the offense.”). ... Close

Unlike conspiratorial liability, complicity is not an offense distinct and separate from the substantive offense. Rather, it is a means of being held liable under the substantive statute. 27 27 Kadish et al., supra note 19, at 659; see also United States v. Smith, 198 F.3d 377, 383 (2d Cir. 1999) (“[A]iding and abetting ‘does not constitute a discrete criminal offense but only serves as a more particularized way of identifying “persons involved.”’” (citing United States v. Oates, 560 F.2d 45, 54 (2d Cir. 1977))). ... Close However, like conspiratorial liability, it is generally “applicable to all federal criminal offenses.” 28 28 Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 181 (1994) (citing Act of Mar. 4, 1909, ch. 321, § 332, 35 Stat. 1152 (codified as amended at 18 U.S.C. § 2)). ... Close The general reach of the complicity statute within federal criminal offenses is understood best by comparing civil offenses, which lack a general aiding-and-abetting statute; there is, therefore, “no general presump­tion” that civil plaintiffs may bring suit against those complicit in causing their injuries. 29 29 Id. at 182–83. ... Close

3. Exceptions. — As alluded to above, however, the conspiracy 30 30 18 U.S.C. § 371. ... Close and com­plicity 31 31 Id. § 2. ... Close statutes do not necessarily lead to blanket liability even in situations that seem potentially amenable to their applications at first glance. At times, this is due to prosecutorial discretion; 32 32 See Offices of the U.S. Attorneys, U.S. Attorney’s Manual § 9-27.110(b) (1997), http://www.justice.gov/usam/usam-9-27000-principles-federal-prosecution#9-27.110 [http://cc/UA66-F4W6] (“Under the Federal criminal justice system, the prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute for appar­ent violations of Federal criminal law.”); see also Charles Doyle, Cong. Research Serv., R43769, Aiding, Abetting, and the Like: An Overview of 18 U.S.C. 2, at 4 (2014), http://
www.fas.org/sgp/crs/misc/R43769.pdf [http://perma.cc/96T6-ECD2] (noting that prose­cutorial discretion sometimes “void[s] . . . secondary criminal liability”). ... Close at other times, this is due to common law exceptions 33 33 This Note recognizes that it is up for debate whether to characterize the judicially applied exceptions—in particular Wharton’s rule and the Gebardi principle—as “common law exceptions.” The thrust of the argument to the contrary is that there is no such thing as a federal common law, and thus federal common law exceptions necessarily do not exist. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938) (“There is no federal general common law.”); see also Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 422 (2011) (recognizing that just because “a subject is meet for federal law governance . . . does not necessarily mean that federal courts should create the controlling law”); Sosa v. Alvarez-Machain, 542 U.S. 692, 726 (2004) (denying the “existence of any federal ‘general’ common law” and emphasizing the “general practice” of “look[ing] for legislative guid­ance before exercising innovative authority over substantive law”). This Note, how­ever, proceeds on the belief that the exceptions can still justifiably be termed “common law exceptions,” as opposed to mere acts of statutory interpretation, as they are two sides to the same coin. ... Close inextricably tied to legislative intent that courts have gradually carved out in federal criminal law jurisprudence. 34 34 See Doyle, supra note 32, at 4 (identifying “judicial pronouncement” as another force “void[ing] . . . secondary criminal liability”); Daniel C. Richman, Kate Stith & William J. Stuntz, Defining Federal Crimes 467 (2014) (noting criminal statutes take on a broad scope of liability and punish aiders and abettors as principals unless there is a “clear legislative intent to the contrary”). ... Close

Wharton’s rule is a common law exception to conspiratorial liability that is deeply rooted in U.S. federal criminal law. 35 35 See, e.g., Pinkerton v. United States, 328 U.S. 640, 643 (1946) (noting the excep­tion “where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime”); United States v. Katz, 271 U.S. 354, 355 (1926) (holding that where “agreement of the parties was an essential element in the sale, an indictment of the buyer and seller for a conspiracy to make the sale would have been of doubtful validity”). For more recent cases implicating Wharton’s rule, see also United States v. Ruhbayan, 406 F.3d 292, 300–01 (4th Cir. 2005); United States v. Worth, No. 1:15-cr-4-AT-GGB, 2015 WL 5970797, at *2–3 (N.D. Ga. Aug. 24, 2015); United States v. Dimora, 829 F. Supp. 2d 574, 582–83 (N.D. Ohio 2011). ... Close Coined by its name­sake, Francis Wharton, the rule postulates that when a “plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a character that it is aggravated by a plurality of agents, cannot be maintained.” 36 36 2 Francis Wharton, A Treatise on Criminal Law § 1339, at 176 (Phila., Kay & Brother, 9th ed. 1885). ... Close In essence, if a substan­tive crime can only be committed via concerted action of at least two indi­viduals, Wharton’s rule prohibits the government from charging the individuals with conspiracy to commit the substantive crime.

The Gebardi principle, which is the focus of this Note, is another common law exception to secondary criminal liability. Although the exact contours of the principle have been blurred due to variations in its interpretation and application across cases, 37 37 See infra section II.A (discussing the two different variants of the Gebardi principle). ... Close it generally applies in situations when a strict application of the conspiracy or complicity stat­utes would frustrate congressional intent to immunize certain persons from liability. 38 38 See Gebardi v. United States, 287 U.S. 112, 123 (1932) (“[W]e perceive . . . evidence of an affirmative legislative policy to leave [the transported woman’s] acquies­cence unpunished . . . . It would contravene that policy to hold that the very passage of the Mann Act effected a withdrawal by the conspiracy statute of that immunity . . . .”). ... Close

Wharton’s rule and the Gebardi principle are close relatives. Both function as common law exceptions to conspiratorial liability by trigger­ing a rebuttable judicial presumption that Congress did not intend to punish a certain class of persons and that Congressional intent should therefore not be frustrated through the operation of the conspiracy statute. 39 39 In the context of Wharton’s rule, the Supreme Court in Iannelli v. United States made clear that the rule was not predicated on “principles of double jeopardy” but has “current vitality only as a judicial presumption [of legislative intent], to be applied in the absence of legislative intent to the contrary.” 420 U.S. 770, 782 (1975). Similarly, in the context of the Gebardi principle, the Supreme Court in Gebardi predicates the principle on the judicial finding of an “affirmative legislative policy.” Gebardi, 287 U.S. at 123; cf. United States v. Falletta, 523 F.2d 1198, 1200 (5th Cir. 1975) (noting the Gebardi principle raises a “presumption about legislative intent,” albeit a “weak” one that can be rebutted by “con­trary and overriding indications”). ... Close

The two, however, are distinct exceptions. Notably, Wharton’s rule is only an exception to conspiratorial liability, 40 40 See supra note 35 and accompanying text (listing cases in which Wharton’s rule was applied, all of which pertained to conspiratorial liability). ... Close whereas the Gebardi princi­ple has been understood to function as an exception to both conspir­atorial and accomplice liability. 41 41 See infra note 65 and accompanying text (noting the extension of the Gebardi principle from the conspiracy context to the complicity context). ... Close This distinction reflects a more fundamental difference between Wharton’s rule and the Gebardi princi­ple. While Wharton’s rule, under which the judicial presumption of immunity from conspiratorial liability is triggered when the underlying offense necessarily requires an agreement, is predicated solely on the nature of the underlying offense, 42 42 See Iannelli, 420 U.S. at 782 (“The classic Wharton’s Rule offenses . . . are crimes that are characterized by the general congruence of the agreement and the completed substantive offense.”). ... Close the Gebardi principle—at least in its original form—is predicated on both the nature of the under­lying offense and the structure of the statute in question. In partic­ular, the Gebardi principle’s judicial presumption of immunity from conspiratorial or accomplice liability is triggered only when the underlying offense necessarily requires the participation of a certain class of persons but such class is not subject to liability under the statute criminalizing the substantive offense. 43 43 See infra notes 62–64 and accompanying text (discussing the Gebardi principle as articulated in Gebardi v. United States). ... Close Although the focus of this Note is the Gebardi principle and not Wharton’s rule, the distinction between the two helps shed light on the Gebardi principle itself.

B. Origins of the Gebardi Principle

The Gebardi principle emerged in a context in which a strict application of the conspiracy statute in certain situations produced anomalous results. For example, when a statute was specifically designed to protect a certain class of persons, holding such persons liable as mem­bers of a conspiracy to violate the underlying statute seemed to go against the interest in protecting them in the first place. 44 44 See infra note 64 and accompanying text (discussing this in the context of the Gebardi case). ... Close The question then was whether immunity from liability was possible, and if so, how it should be circumscribed. 45 45 See infra section II.A (detailing two different ways courts have circumscribed the reach of the Gebardi principle in offering immunity from conspiratorial and accomplice liability). ... Close

1. United States v. Holte: The Lead Up to Gebardi. — United States v. Holte, 46 46 236 U.S. 140 (1915). ... Close a Supreme Court case that preceded Gebardi, is critical to under­standing the subsequent development of the Gebardi principle. In Holte, the female defendant was indicted for conspiring with another to cause her own transportation across state lines for the purpose of prosti­tution. 47 47 Id. at 143. ... Close The underlying offense was the violation of the Mann Act, which provided:

[A]ny person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, or in any Territory or in the District of Columbia, any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose . . . shall be deemed guilty of a felony . . . . 48 48 White-Slave Traffic (Mann) Act, ch. 395, § 2, 36 Stat. 825, 825 (1910) (codified as amended at 18 U.S.C. § 2421 (2012)). ... Close

The sole question the Supreme Court faced was whether the defend­ant, the transported woman contemplated in the Mann Act, could possibly be guilty of conspiring with the transporter to violate the Act. 49 49 Holte, 236 U.S. at 144. ... Close In a succinct opinion, Justice Holmes, writing on behalf of the majority, determined that it would be “going too far” to say that the transported woman could never be guilty of conspiring to violate the Act. 50 50 Id. at 145. ... Close To support this conclusion, Justice Holmes raised a hypothetical situation in which the transported woman could be found guilty of violating the Act itself. 51 51 Id. ... Close In essence, when the transported woman demonstrates a great degree of initiative in bringing about the transportation such that it is an “illusion” that the transported woman is a “victim,” the woman transported could be liable under the Act and for conspiracy to violate the Act. 52 52 Id. Certain key facts in the hypothetical instance that availed the transported woman to conspiratorial liability under the Mann Act included the woman being a professional prostitute, being able to look out for herself, suggesting to carry out the journey with motive to blackmail the man, and purchasing the railroad tickets to cross state lines. Id. ... Close Holte’s contemplation of conspiracy in the context of the Mann Act set the stage for the Gebardi case that the Supreme Court would confront about two decades later.

2. Gebardi v. United States: The Gebardi Principle. — In Gebardi, the relevant federal law, like the Holte case, was the Mann Act. 53 53 See Gebardi v. United States, 287 U.S. 112, 115 (1932). ... Close The defendants were a man and a woman who were indicted for conspiring to violate the Act. 54 54 Id. at 115–16. ... Close There was evidence that the man had purchased the railway tickets and that the woman had “consented” to “voluntarily” follow the man for the immoral purpose of engaging in sexual inter­course. 55 55 Id. at 116. ... Close Defendants appealed the trial court’s convictions, attacking the indictment and the sufficiency of facts that the trial court used to support their convictions. 56 56 Gebardi v. United States, 57 F.2d 617, 617 (7th Cir. 1932), rev’d, 287 U.S. 112. ... Close The Court of Appeals for the Seventh Circuit, how­ever, affirmed the trial court’s judgment, “dispos[ing] of [the defend­ants’ contentions] without discussion.” 57 57 Id. at 618. ... Close In doing so, the Seventh Circuit relied solely on the authority of Holte despite conceding that defendants had advanced arguments that were not expressly considered in the Holte opinion. 58 58 Id. ... Close

The defendants further appealed their convictions and secured Supreme Court review on certiorari. 59 59 Gebardi, 287 U.S. at 115–16. ... Close Instead of deferring to the authority of Holte, the Supreme Court in Gebardi determined that the “exceptional circumstances” discussed in Holte were not present because there was no evidence that the woman had been the “active or moving spirit in conceiving or carrying out the transportation”—she had merely acquiesced. 60 60 Id. at 117; see also supra note 52 (detailing the “exceptional circumstances” contemplated in Holte to give rise to conspiratorial liability under the Mann Act). ... Close In rejecting the Seventh Circuit’s line of reasoning and reversing the conviction, the Supreme Court developed a principle that justified the Court’s rejection of conspiratorial liability for the woman:

[W]e perceive in the failure of the Mann Act to condemn the woman’s participation in those transportations which are effected with her mere consent, evidence of an affirmative legislative policy to leave her acquiescence unpunished. We think it a necessary implication of that policy that when the Mann Act and the conspiracy statute came to be construed together, as they necessarily would be, the same participation which the former contemplates as an inseparable incident of all cases in which the woman is a voluntary agent at all, but does not punish, was not automatically to be made punishable under the latter. It would contravene that policy to hold that the very passage of the Mann Act effected a withdrawal by the conspiracy statute of that immunity which the Mann Act itself confers. 61 61 Gebardi, 287 U.S. at 123 (emphasis added). ... Close

The passage quoted above is arguably where the answer to the proper framing of the Gebardi principle lies, but also where this conun­drum begins. Relying solely on the Supreme Court’s language in the Gebardi case, the Gebardi principle arguably stands for a judicial presump­tion that is only triggered when certain specific requirements have been met: First, the participation of a certain class of people must be an “inseparable incident” from the underlying offense, and second, the underlying offense must exclude such class from punishment. 62 62 Id. ... Close The judicial presumption triggered here is that the “failure . . . to condemn” evinces an “affirmative legislative policy” to leave that class of people unpunished. 63 63 Id. ... Close In the context of the Gebardi case itself, this policy not to punish meant that the conspiracy statute could not be used to frustrate the legislative policy to grant a certain class of people immunity from liability. 64 64 Id. ... Close Subsequent cases in the line of Gebardi jurisprudence have applied the Gebardi principle to grant immunity from accomplice liability as well, for the same reasons cases grant immunity from conspiratorial liability. 65 65 See, e.g., United States v. Hill, 55 F.3d 1197, 1205 (6th Cir. 1995) (applying the Gebardi principle in the context of accomplice liability); United States v. Pino-Perez, 870 F.2d 1230, 1234 (7th Cir. 1989) (same); United States v. Amen, 831 F.2d 373, 382 (2d Cir. 1987) (same); United States v. Wegg, 919 F. Supp. 898, 908 (E.D. Va. 1996) (same). ... Close

The conundrum, however, is what the Gebardi principle stands for today. As Part II will illustrate, two variants of the Gebardi principle have emerged in Gebardi jurisprudence, with one variant being more closely aligned with the express language in the Gebardi case and with the other variant broadening the principle beyond its original form.

II. Emergence of the Gebardi “Principles”

With more than eight decades of jurisprudence between the Gebardi principle’s conception in 1932 and today, it would be unrealistic to expect absolute consistency in how courts across the United States have interpreted and applied it. The problem with the framing of the Gebardi principle, however, is not one of small variations in interpretation and appli­cation that are nonetheless amenable to characterization as a single principle; two distinct variations in interpretation and application have emerged such that the Gebardi principle is no longer a single principle, but two separate “principles.”

This Part will discuss in detail the problem of the Gebardi “principles” by tracking the interpretation and application of Gebardi across its eight-decade jurisprudence. In particular, this Part will focus on the recent district court decision, United Sates v. Hoskins, 66 66 123 F. Supp. 3d 316 (D. Conn. 2015). ... Close and use this discussion as a springboard into the deeper issues underlying the Gebardi principle today.

Section II.A introduces and crystallizes the distinction between the two Gebardi “principles” by drawing on key cases that have interpreted and applied the Gebardi principle. Section II.B explores the operation of the Gebardi principle in the context of Hoskins. Section II.C draws the link between sections II.A and II.B by explicating how Hoskins not only mir­rors but adds to the problem of the Gebardi “principles.”

A. Gebardi: Narrow or Broad?

When first articulated in the Gebardi case, the Gebardi principle arguably stood for a narrow rule of construction. 67 67 See supra text accompanying notes 63–64 (characterizing the principle in the Gebardi case as a rule of construction). ... Close But since then, various courts dealing with various bodies of law have interpreted and applied the Gebardi principle in various ways. 68 68 See infra sections II.A.1–.2 (discussing the treatment of the Gebardi principle as a rule of construction and as a broad look to legislative intent, respectively). ... Close This has resulted in the emer­gence of a variant of the Gebardi principle distinct from the form it took in 1932. 69 69 See infra section II.A.2 (detailing the broader variation of the Gebardi principle). ... Close Instead of a narrow rule of construction, this new and broader variant operates as an open invitation to the judiciary to determine leg­islative intent. This is not to say, however, that the Gebardi principle as a rule of construction has been superseded by this broader variant. Instead, these two variants coexist today in Gebardi jurisprudence, trans­forming the Gebardi principle into the Gebardi “principles.”

1. Narrow Variant: A Rule of Construction. — According to Francis Lieber, 70 70 Francis Lieber was a legal theorist who coined the word “hermeneutics” in his first book, Legal and Political Hermeneutics. John Catalano, Francis Lieber: Hermeneutics and Practical Reason 14 (2000) (“Prior to Lieber there is no record of the word ‘herme­neutics’ being used in the fields of politics or law in the English language.”). ... Close the first philosopher to distinguish interpretation from construc­tion through hermeneutics, 71 71 Id. ... Close interpretation is the “art of finding out the true sense of any form of words”; 72 72 Francis Lieber, Legal and Political Hermeneutics 23 (Bos., Charles C. Little & James Brown 1839). ... Close construction is the “drawing of conclusions respecting subjects, that lie beyond the direct expression of the text, from elements known from and given in the text,” which is resorted to if the “true sense” cannot be discovered. 73 73 Id. at 56. ... Close In other words, construction is a method of interpretation 74 74 See Quintin Johnstone, An Evaluation of the Rules of Statutory Interpretation, 3 U. Kan. L. Rev. 1, 1 (1954) (noting that the “ostensible purpose” of the rules of construc­tion “is to clarify statutory meaning”). ... Close that aims to come close to the “true sense” through the operation of a guiding principle. 75 75 Rules of construction are also commonly referred to as “rules of statutory interpretation” or “canons of construction.” Id. They take the form of maxims and function as a tool for rendering statutory interpretation more “determinate.” Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2148 (2002). ... Close In his treatise, Statutes and Statutory Construction, Sutherland suggests that rules of construction have the effect of introducing greater certainty to the process of interpretation. 76 76 See 2 J.G. Sutherland, Statutes and Statutory Construction 696 (John Lewis ed., 2d ed. 1904) (“The function of such interpretation unrestrained by settled rules would introduce great uncertainty, and would involve a power virtually legislative.”); see also Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 95, 106 (2010) (arguing “interpretation makes its exit and construction enters the scene” when “text is vague”). ... Close Various examples of rules of construction include expressio unius est exclusio alterius, which triggers a judicial pre­sump­tion that all omissions were intended when a statute is extremely detailed in all respects, 77 77 2A Norman Singer & Shambie Singer, Sutherland Statutory Construction § 47:23 (7th ed. 2015). ... Close and reddendo singula singulis, which triggers a judicial presumption that enumeration was not intended to be exclusive when a statute’s opening words are general but its succeeding parts are specific. 78 78 Id. § 47:26. ... Close Both are rules that trigger judicial presumptions based on the specific structure of the statute in question. The presumptions control unless a contrary legislative intent is apparent. 79 79 See id. § 47:23 (describing a rule of statutory construction as different from a rule of law and thus susceptible to being overcome by a “strong indication of contrary legislative intent”). ... Close

The Gebardi principle as first introduced in the Gebardi case is arguably a rule of construction, as the words of the Mann Act do not ex­pressly proscribe liability for a woman consenting to transportation. 80 80 See White-Slave Traffic (Mann) Act, ch. 395, 36 Stat. 825 (1910) (codified as amended at 18 U.S.C. §§ 2421–2424 (2012)) (creating liability for the male transporter in express words but not for the woman transported). ... Close Similar to the rules of construction introduced above, 81 81 See supra notes 77–79 and accompanying text (introducing examples of rules of construction). ... Close the principle in Gebardi triggered a judicial presumption based on the specific structure of the statute in question. Putting this discussion in the context of the Mann Act, because the underlying offense necessarily required a man to transport and a woman to be transported but the statute only expressly created liability for the man, the court in Gebardi presumed this to reflect what it called an “affirmative legislative policy” not to punish the woman, whether under the Act itself 82 82 It is noted here that the court in Gebardi found this to be true at least to the extent that the woman transported did not display the initiative and proactivity contem­plated in Holte to render the woman liable under the Mann Act. Gebardi v. United States, 287 U.S. 112, 117 (1932); see also supra note 52 (detailing the “exceptional circum­stances” contemplated in Holte to give rise to conspiratorial liability under the Mann Act). ... Close or under a theory of conspiracy. 83 83 Gebardi, 287 U.S. at 123 (“It would contravene that [affirmative legislative] policy to hold that the very passage of the Mann Act effected a withdrawal by the conspiracy statute of that immunity which the Mann Act itself confers.”). ... Close This Note terms the structural prerequisites of “necessity” and “omission” for triggering the judicial presumption of immunity as the twin gatekeeping requirements of the Gebardi principle.

The interpretation and application of the Gebardi principle as a rule of construction can be discerned across a range of cases subsequent to the Gebardi case. 84 84 See, e.g., United States v. Nasser, 476 F.2d 1111, 1119 (7th Cir. 1973) (charac­terizing Gebardi as an exception that “turns upon a construction of legislative intent” (emphasis added)); cf. United States v. Falletta, 523 F.2d 1198, 1200 (5th Cir. 1975) (identifying Gebardi as announcing a “rule of construction,” albeit a weak one). ... Close One of the earliest cases grappling with Gebardi-type issues, Nigro v. United States, 85 85 117 F.2d 624 (8th Cir. 1941). ... Close is evidence of this. In Nigro, the underlying law was the Harrison Anti-Narcotic Act, which expressly criminalized the act of selling, bartering for, exchanging, or giving away any drug listed in the statute but did not expressly criminalize the receipt of the drug. 86 86 The Harrison Anti-Narcotic Act is officially known as the Harrison Narcotics Tax Act of 1914, ch. 1, 37 Stat. 785 (1914), superseded by the Controlled Substances Act, Pub. L. 91-513, 84 Stat. 1242 (1970) (codified as amended in scattered sections of 21 U.S.C. (2012)). ... Close The question facing the court in Nigro was whether a conspiracy charge could hold against the defendant-doctor (the provider of the drug) for conspiring with a drug addict (the recipient-purchaser of the drug) to violate the Act. 87 87 Nigro, 117 F.2d at 627. ... Close In language reminiscent of that employed by the Court in Gebardi, the court found that the “omission” of the purchaser of the drug from liability under the Act evinced an “affirmative legislative policy” to leave the purchaser unpunished. 88 88 Id. at 629; see also Gebardi, 287 U.S. at 123 (employing similar language of “failure” to condemn as evidence of an “affirmative legislative policy” to give “immunity”). ... Close Consequently, the conspiracy statute could not operate to contravene this policy. Since the drug addict could not be subject to conspiratorial liability, the court held that the conspir­acy charge against the defendant doctor necessarily failed, as he “could not conspire with himself.” 89 89 Nigro, 117 F.2d at 629. ... Close

United States v. Bowles 90 90 183 F. Supp. 237 (D. Me. 1958). ... Close is another example of a case that has inter­preted and applied the Gebardi principle strictly as a rule of construction. In the context of accomplice liability as a theory of liability under the conflict-of-interest statutes, the court reiterated that the Gebardi case, and thus the Gebardi principle, “authoritatively declared” that when an under­lying offense “necessarily requires” two parties for its commission but the statute only expressly makes one of the two liable, the “clear meaning” is that the unpunished person is not liable under the statute, whether as a principal or an accomplice. 91 91 Id. at 251. ... Close

The understanding of the Gebardi principle as a rule of construction has continued over the past eight decades of Gebardi jurisprudence. In 1989, the Seventh Circuit in the case United States v. Pino-Perez dealt with the Gebardi principle in the context of the drug-kingpin statute. 92 92 870 F.2d 1230, 1231 (7th Cir. 1989). ... Close Under this statute, heavy penalties are imposed on the organizer, supervisor, or manager of a continuing criminal enterprise (CCE) engaged in a series of felony narcotics violations when such violations are conducted in concert with five or more persons. 93 93 Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 848 (2012). ... Close In answering the question of whether an exception to accomplice liability applied to persons who assisted the drug kingpin in the violation of the statute but who were neither expressly held liable under the statute nor one of the five or more persons necessary for the commission of the crime, Judge Richard Posner emphatically argued that he could not say “amen.” 94 94 See Pino-Perez, 870 F.2d at 1237 (“Aides do not satisfy the five-supervised-persons requirement of the CCE statute . . . .”). This was a clever play on words by Judge Posner, who was alluding to a prior case in the Second Circuit, United States v. Amen, that deter­mined that a drug kingpin’s helpers could not be held liable under the act on a theory of accomplice liability. 831 F.2d 373, 382 (2d Cir. 1987). ... Close By rejecting the operation of the Gebardi principle in this context, Judge Posner arguably conceived the principle as the Gebardi case set it out to be—a rule of construction that triggered a judicial presumption of immunity only in certain specific circumstances. Citing Gebardi, Judge Posner asserted that an exception to accomplice liability is only found where an “affirmative legislative policy” to create the exception exists. 95 95 Pino-Perez, 870 F.2d at 1234 (quoting United States v. Falletta, 523 F.2d 1198, 1200 (5th Cir. 1975)). ... Close

Although Judge Posner did not explicate why an affirmative legisla­tive policy was absent, it can be implied from his citation to Gebardi that perhaps two aspects of the underlying case were driving his refusal to apply the Gebardi principle: First, the defendant in Pino-Perez was not a party necessary to the inherent nature of the underlying offense because the statute did not contemplate parties on opposite ends of a transaction but parties on the same side of a transaction; and second, the defendant in Pino-Perez was also not a necessary party as a function of statutory creation, as “[a]ides [not supervised by the kingpin] do not satisfy the five-supervised-persons requirement of the CCE statute.” 96 96 Id. at 1237. ... Close It was proba­bly this failure to satisfy the requirement of “necessity” that urged Judge Posner to determine that an affirmative legislative policy to immunize the defendant could not be found in the instant case, contrary to Gebardi. 97 97 Id. ... Close

Perhaps the most recent authoritative enunciation of the Gebardi principle, however, was made in Abuelhawa v. United States. 98 98 556 U.S. 816 (2009). ... Close Although the case did not engage in a deep discussion of the Gebardi principle because the Supreme Court found the principle to “not strictly control the outcome” in this case, 99 99 Id. at 821. ... Close the Court nonetheless circumscribed the Gebardi principle as follows: “[W]here a statute treats one side of a bilat­eral transaction more leniently, adding to the penalty of the party on that side for facilitating the action by the other would upend the calibration of pun­ishment set by the legislature.” 100 100 Id. at 820–21. ... Close Finally, while given cursory treat­ment in the Court’s majority opinion in Ocasio v. United States, 101 101 136 S. Ct. 1423 (2016). In Ocasio, the Supreme Court faced the question of whether the petitioner could be convicted of conspiring to violate the Hobbs Act, when the individuals being extorted from under the act were part of the same conspiratorial entity. Id. at 1427. The Court ruled that in spite of the statute’s language defining the crime as obtaining property “from another,” the fact that the individual members of the conspir­atorial entity could never have committed the substantive crime on their own does not preclude a charge of conspiracy to commit the same substantive crime. See id. at 1433–34. ... Close Justice Sotomayor’s dissent is instructive. In essence, she frames the Gebardi decision as “based . . . explicitly on the language of the Mann Act.” 102 102 Id. at 1443 (Sotomayor, J., dissenting). ... Close Although she does not expressly refer to the Gebardi principle as a rule of construction, her acknowledgement that the Gebardi decision was closely tethered to the language of the statute supports the framing of the principle as such.

In each of these cases, the Gebardi principle was interpreted and applied as a rule of construction. An inference of an “affirmative legisla­tive policy” not to create criminal liability was only triggered when two gatekeeping conditions were met: First, the nature of the offense necessarily required participation of a particular party; and second, the statute was structured such that liability for such necessary party was omitted. These two gatekeeping conditions had to be satisfied in order to trigger the presumption that in criminalizing the activity, Congress must have had all necessary parties in mind and thus any omission of a neces­sary party must have been a deliberate one. It is the requirement of a necessary party omitted from liability that undergirds Gebardi as a rule of construction, and it thereby bridges the gulf between the multitude of things Congress possibly contemplated and the discrete set of things Congress probably contemplated.

2. Broad Variant: Unbounded by Rules. — A broader variant of the Gebardi principle, however, has emerged more recently. This variant is broader because whereas Gebardi as a rule of construction guides and mediates the process of determining legislative intent through the twin gate­keeping requirements, this variant operates as an invitation for courts to delve into legislative history and congressional records in order to intuit a “policy” for or against prosecutorial immunity. 103 103 See, e.g., United States v. Amen, 831 F.2d 373, 382 (2d Cir. 1987) (examining legislative history to find a legislative policy). ... Close In other words, this broader take on Gebardi can defeat the default rule notwith­standing the absence of the twin gatekeeping requirements.

United States v. Amen provides a case in point. 104 104 Id. ... Close Similar to Pino-Perez, 105 105 See supra notes 93–94 and accompanying text (detailing the mechanics of the drug-kingpin statute). ... Close the relevant law in Amen was the drug-kingpin statute. 106 106 Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 848 (2012). ... Close One of the defendants, Michael Paradiso, had assisted the kingpin in communi­cating with his subordinates and performed tasks for the kingpin. 107 107 Amen, 831 F.2d at 375, 377. ... Close The question facing the court was whether Paradiso could be liable as an accom­plice even though he was not an employee of the CCE and thus not one of the five supervised persons required for the commission of the offense. 108 108 Id. at 381. ... Close In answering this question and ultimately convicting Paradiso for aiding and abetting the kingpin, the court noted, relying on the authority of Gebardi, that when “Congress assigns guilt to only one type of participant in a transaction, it intends to leave the others unpunished for the offense.” 109 109 Id. (citing Gebardi v. United States, 287 U.S. 112, 123 (1932)). ... Close

However, attention to the court’s analysis reveals that Gebardi’s influence in this case was not as a rule of construction. Instead of relying solely on statutory structure to infer a legislative policy, the court in Amen directly delved into legislative history to find a legislative policy. 110 110 The court found that “[w]hile the legislative history makes no mention of aiders and abettors, it makes clear that the purpose of making CCE a new offense rather than leaving it as sentence enhancement was not to catch in the CCE net those who aided and abetted the supervisors’ activities.” Id. at 382. ... Close The Gebardi principle was applied as an exception to the general principles of criminal secondary liability not when the particular rule of construction could be applied to give rise to an inference of legislative policy, but as a broad invitation for courts to parse through legislative history in search of such policy unbounded by the gatekeeping requirements.

Amen was not the first case to apply the Gebardi principle in a manner more expansive than a rule of construction. In United States v. Falletta, 111 111 523 F.2d 1198 (5th Cir. 1975). ... Close the defendant was convicted for aiding and abetting the violation of 18 U.S.C. § 922(g), which proscribes the receipt, possession, and transportation of a firearm in interstate commerce by a convicted felon. 112 112 Id. at 1198–99. ... Close The prosecution’s theory of the case was that the defendant had aided and abetted a convicted felon in the receipt of a firearm. 113 113 Id. at 1199. ... Close The defendant attempted to shield himself from accomplice liability through a reasoning akin to that undergirding the Gebardi principle as a rule of construction: Since Congress cabined liability for the firearm-transaction offense to the recipient of the firearm in spite of the inherent necessity of a giver in order for the offense to materialize, Congress’s failure to impose liability on the giver evinced a “legislative desire that such a person should go unpunished.” 114 114 Id. ... Close In essence, the twin gatekeeping require­ments of (1) a transaction necessarily requiring the participation of a particular party and (2) the omission of such necessary party from liability under the statute were both satisfied in the context of a giver of a firearm vis-à-vis 18 U.S.C. § 922(g); as such, the judicial presumption of immunity for the giver ought to be triggered.

The Court in Falletta, however, rejected the defendant’s line of reasoning. While conceding that there is “respectable authority support­ing this approach to statutory construction,” the Court concluded that “[t]he rule of construction in Gebardi amounts at best to a weak presumption about legislative intent.” 115 115 Id. at 1199–200 (citing Gebardi v. United States, 287 U.S. 112 (1932)). ... Close Instead, the Court looked to the “main objective” of the statute—the restriction of firearm possession—and determined that Congress did not focus on the “receiving” aspect of the statute and so an “affirmative legislative policy” to immunize givers of firearms from liability could not be found. 116 116 Id. ... Close Again, this is evidence of a court bypassing the structural requirements originally put in place in the Gebardi case and delving directly into materials beyond the text of the statute to ascertain legislative intent.

B. Hoskins and the Gebardi Principle

United States v. Hoskins was a key development in the Gebardi principle’s jurisprudence on many levels. Yet the reason it drew almost immediate attention from both practitioners 117 117 See, e.g., Martin S. Bloor & Christopher Howard, Federal Judge Rejects Government’s Accomplice Theory of FCPA Liability, Insight Ctr.: Publications, Pepper Hamilton LLP (Aug. 26, 2015), http://www.pepperlaw.com/publications/federal-judge-rejects-governments-accomplice-theory-of-fcpa-liability-2015-08-26/ [http://perma.cc/J2VD-R6PL]; Charles S. Leeper & Joshua M. Link, Federal Court Rejects Invalid Theory of FCPA “Accomplice” Liability, Insights & Events, Drinker Biddle (Aug. 21, 2015), http://
www.drinkerbiddle.com/insights/publications/2015/08/federal-court-rejects-invalid-theory-
of-fcpa-acc__ [http://perma.cc/D3EE-CGKH]; Kimberly A. Parker et al., Federal Judge Rejects DOJ’s Theory of FCPA Accomplice Liability, Publications & News, WilmerHale (Aug. 27, 2015), http://www.wilmerhale.com/pages/publicationsandnewsdetail.aspx?
NewsPubId=17179879236 [http://perma.cc/2AWK-TFPD]. ... Close and online reporters 118 118 See, e.g., Judge Trims DOJ’s FCPA Enforcement Action Against Lawrence Hoskins, FCPA Professor (Aug. 17, 2015), http://www.fcpaprofessor.com/judge-trims-dojs-fcpa-enforcement-action-against-lawrence-hoskins (on file with the Columbia Law Review); Stephanie Russell-Kraft, Judge Raises Hurdle for DOJ FCPA Conspiracy Charge, Law360 (Aug. 14, 2015, 4:56 pm), http://www.law360.com/articles/691453/judge-raises-hurdle-for-doj-fcpa-conspiracy-charge [http://perma.cc/T5D8-MMVU]. ... Close alike cannot be divorced from the hot-button nature of the underlying law, the FCPA. 119 119 Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1 to -3 (2012). ... Close

Enacted by Congress in 1977 in the wake of the Watergate political scandal, 120 120 For more information on the scandal, see generally Keith W. Olson, Watergate: The Presidential Scandal that Shook America (2003) (providing the broader context surrounding the scandal). ... Close the FCPA aimed to restore public confidence in U.S. business by stamping out corporate bribery. 121 121 Criminal Div., U.S. Dep’t of Justice & Enf’t Div., U.S. SEC, A Resource Guide to the U.S. Foreign Corrupt Practices Act 3 (2012) [hereinafter FCPA Guide], http://
www.justice.gov/sites/default/files/criminal-fraud/legacy/2015/01/16/guide.pdf [http://
perma.cc/VUA6-VYVP]. ... Close Since then, the FCPA has under­gone two amendments: one in 1988 122 122 The 1988 amendment added two affirmative defenses to the FCPA—namely, the “local law” defense and the “bona fide promotional expense” defense. Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, § 5003, 102 Stat. 1107, 1415–25 (1988); see also H.R. Rep. No. 100-576, at 916–24 (1988) (discussing the FCPA 1988 amendments); FCPA Guide, supra note 121, at 3 (discussing the background of the FCPA 1988 amendments). ... Close and another in 1998. 123 123 The 1998 amendment involved bringing the FCPA in line with the requirements of the Anti-Bribery Convention that came into force in February 1999. International Anti-Bribery and Fair Competition Act of 1998, Pub. L. No. 105-366, 112 Stat. 3302; see also S. Rep. No. 105-277, at 2–3 (1998) (describing the FCPA 1998 amendments); FCPA Guide, supra note 121, at 4 (discussing the background of the FCPA 1998 amendments). ... Close The current FCPA anti-bribery provisions proscribe the offer to pay, payment, promise to pay, or authorization of payment of money or “anything of value” to a “foreign official” in her official capacity in exchange for some improper business advantage. 124 124 112 Stat. at 3305; FCPA Guide, supra note 121, at 10. ... Close The statute expressly metes out three broad catego­ries of natural and legal persons to which the antibribery provisions apply: issuers, 125 125 Under the FCPA, an “issuer” is defined as a company that has a class of securities registered under section 12 of the Exchange Act or is required to file reports with the SEC under section 15(d) of the Exchange Act. 15 U.S.C. § 78c(a)(8) (2012). The FCPA Guide authored by the SEC and DOJ has clarified that this essentially includes any company that lists securities on a U.S. national securities exchange or is quoted in the U.S. over-the-counter market. FCPA Guide, supra note 121, at 11. ... Close domestic concerns, 126 126 Under the FCPA, a “domestic concern” can refer to both individuals and legal entities. 15 U.S.C. § 78dd-2(h). In the context of an individual, a “domestic concern” would be either a citizen or a resident of the United States; in the context of a legal entity, a “domestic concern” would either be organized under the laws of the United States or have the United States as its principal place of business. Id. ... Close and certain real and legal entities (other than issuers and domestic concerns) acting within U.S. territory. 127 127 This is the territorial jurisdiction provision of the FCPA. Id. at  78dd-3(a). ... Close The FCPA is another area of law 128 128 As discussed in section II.A, the Gebardi principle has been applied across a range of laws, including the Mann Act, the Harrison Anti-Narcotic Act, the federal conflict-of-interest statutes, and the drug-kingpin statute. ... Close within which the Gebardi principle has been interpreted and applied.

1. FCPA and the Gebardi Principle Pre-Hoskins. — Hoskins was not the first FCPA case to deal with Gebardi issues. However, given the FCPA’s rather recent enactment 129 129 See supra text accompanying note 120 (noting enactment of the FCPA). ... Close and the infrequency with which FCPA cases go to trial, 130 130 See Mike Koehler, Big, Bold, and Bizarre: The Foreign Corrupt Practices Act Enters a New Era, 43 U. Tol. L. Rev. 99, 146 (2011) (noting there is “little substantive FCPA case law” due to strong incentives to settle). ... Close it is unsurprising that only two other cases had con­fronted the Gebardi principle before the Hoskins decision in 2015.

The first FCPA case involving the Gebardi principle was United States v. Castle. 131 131 925 F.2d 831 (5th Cir. 1991). ... Close The central question in the Castle case was whether the Canadian foreign officials who had accepted the bribe in question could be prosecuted for conspiring to violate the FCPA. 132 132 Id. at 831. ... Close The Fifth Circuit, fully adopting Judge Sanders’s trial court decision and opinion, held that foreign officials could not be prosecuted under a theory of conspiracy. 133 133 Id. For a detailed presentation of the reasoning the Fifth Circuit adopted, see Judge Sanders’s memorandum in United States v. Blondek, 741 F. Supp. 116 (N.D. Tex. 1990). ... Close Judge Harold Barefoot Sanders’s reasoning hinged on the application of the Gebardi principle, with respect to which he clearly stated: “The principle enunci­ated by the Supreme Court in Gebardi squarely applies to the case before this Court.” 134 134 Blondek, 741 F. Supp. at 117. ... Close Framing the principle as a rule of construction and analogizing the structure of the FCPA to that of the Mann Act in Gebardi, Judge Sanders argued that both statutes involved an offense that “necessarily involved” at least two parties acting in concert but only explicitly assigned liability to one party. 135 135 Id. ... Close

In the specific context of the FCPA, the twin gatekeeping require­ments for triggering the judicial presumption of immunity from criminal secondary liability under Gebardi as a rule of construction are similarly met. First, in terms of the nature of the transaction, the offense of bribery necessarily involves a briber and a foreign official to be bribed. 136 136 Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1 to -3 (2012). ... Close Second, in terms of the structure of the statute, criminal liability is expressly created only for the briber, not the bribe recipient, notwith­standing the recipient’s indispensability in the execution of the transac­tion. 137 137 Id. ... Close As such, this allows for the judicial presumption that Congress did not intend to punish the foreign official (bribe recipient) and that prosecuting the foreign official through the conspiracy statute would only serve to “override the Congressional intent . . . .” 138 138 Blondek, 741 F. Supp. at 118. ... Close The Castle case is therefore another example of a court applying the variant of the Gebardi principle that operates as a rule of construction within the context of the FCPA.

The other FCPA case involving the Gebardi principle is United States v. Bodmer. 139 139 342 F. Supp. 2d 176 (S.D.N.Y. 2004). ... Close Like Castle, Bodmer also involved a foreign national charged with conspiring to violate the FCPA. 140 140 See id. at 177–78 (noting the defendant to be a Swiss national). ... Close Unlike Castle, however, Bodmer involved charging a foreign national briber and not a foreign national bribe recipient. 141 141 Id. at 179. ... Close One wrinkle that troubled the court in the Bodmer case was that it was heard in court after the 1998 amendments to the FCPA, but the alleged conspiracy—and thus the relevant law—predated the amendments. 142 142 See id. at 181 (“[Defendant] has been charged pursuant to the FCPA of 1977, as it existed prior to the November 10, 1998 amendments . . . .”). ... Close This is a unique wrinkle because while the 1998 amend­ments clarified that foreign nationals could be subject to the FCPA if they were acting in the capacity of “agent[s] of a domestic concern,” 143 143 International Anti-Bribery and Fair Competition Act of 1998, Pub. L. No. 105-366, § 3(b)(2), 112 Stat. 3302, 3304. ... Close the liability for such persons under the FCPA of 1977 was ambiguous.

The most troubling aspect of the Bodmer case, however, was not the question of the scope of the FCPA of 1977; on this front, the court en­gaged in a thorough analysis of statutory canons, 144 144 See Bodmer, 342 F. Supp. 2d at 182–84. ... Close legislative history, 145 145 See id. at 184–86. ... Close and judicial interpretations. 146 146 See id. at 186–87. ... Close Instead, it was what the Bodmer court unquestioningly adopted: If defendant foreign nationals could not be subject to criminal liability under the FCPA, the conspiracy charge necessarily had to be dismissed pursuant to Gebardi and Castle. 147 147 Id. at 181. ... Close

This reasoning—or perhaps more accurately, the lack thereof—is extremely problematic. Neither Gebardi nor Castle stands for the follow­ing rule: If a person cannot be held liable under the substantive statute, such person also cannot be held liable for conspiracy to violate the substantive statute. On the contrary, the court in Gebardi was explicit in stating that the “[i]ncapacity of one to commit the substantive offense does not necessarily imply that he may with impunity conspire with others who are able to commit it.” 148 148 Gebardi v. United States, 287 U.S. 112, 120 (1932). ... Close Further, the Gebardi principle as conceived in Gebardi and as applied in Castle operated as a rule of con­struction, in which a judicial presumption to defeat the general reach of the conspiracy or accomplice-liability statutes was triggered only when the gatekeeping requirements of “necessity” and “omission” were met. 149 149 See supra notes 136–138 and accompanying text (highlighting the satisfaction of the twin gatekeeping requirements in Castle). ... Close Under the facts in Bodmer and assuming the application of the Gebardi principle as a rule of construction, an exception to conspiratorial liability should not be found as, even if the “omission” requirement were met, a foreign national briber was in no way a party necessary to a bribery transaction—any briber, foreign or not, would have sufficed.

The only way to rationalize the Bodmer court’s sweeping take on the force of Gebardi is that the court was applying the broader variant of the Gebardi principle. Since in determining whether the defendant was liable under the FCPA the court was engaging in an exercise of ascertaining legislative intent through various methods (statutory construction, legis­lative history, and the like), the court assumed that if it found a legislative intent to leave the defendant unpunished, that would neces­sarily immun­ize the defendant from conspiratorial liability. The court made this assumption of legislative intent notwithstanding the failure to meet the twin gatekeeping requirements of Gebardi at the outset. 150 150 See Bodmer, 342 F. Supp. 2d at 187–88 (reasoning that Congress “likely intended” to extend liability to the defendant based on importing the civil concept of personal juris­diction to a criminal context, as opposed to meeting the twin gatekeeping requirements). ... Close The Bodmer case is therefore another example of a court applying the Gebardi principle in the context of the FCPA—but this time, in its broader variant.

Overall, there were extremely few criminal cases interpreting and applying the Gebardi principle within the context of the FCPA pre-Hoskins. Even so, the splintering between the two variants of the Gebardi principle was already apparent.

2. The Hoskins Case. — As detailed above, even before the Hoskins case came before the District of Connecticut, Gebardi’s jurisprudence had already splintered into two distinct variants. This divergence was evident across all cases that dealt with Gebardi-type issues and also within the microcosm of Gebardi cases pertaining to the FCPA. Hoskins, however, was not a mere reflection of this ongoing problem. Instead, this Note argues that Hoskins not only reflected but also added to the problem.

In Hoskins, the government charged the defendant with participat­ing and conspiring to participate in a bribery scheme for Alstom’s U.S. subsidiary to secure a business contract. 151 151 United States v. Hoskins, 123 F. Supp. 3d 316, 317–18 (D. Conn. 2015). ... Close The government alleged that the defendant had instigated and conspired with many others to violate the FCPA; the government also suggested that the defendant “may” have engaged a U.S. consultant to pay bribes to one of the highest-ranking officials of the Indonesian Parliament on his behalf and “caused” wire transfers to be made via U.S. bank accounts as part of the corrupt scheme. 152 152 Government’s Response to Defendant’s Second Motion to Dismiss at 2, Hoskins, 123 F. Supp. 3d 316 (No. 3:12CR238 (JBA)), 2015 WL 11018892, at *3–4 [hereinafter Government’s Response to June 4 Motion to Dismiss]. ... Close Notably, the defendant was not an American citizen, was employed as a senior vice president for the Asia region by Alstom U.K., and was engaged in other responsibilities for Alstom Resources Management S.A. in France. 153 153 Hoskins, 123 F. Supp. 3d at 317–18. ... Close This meant the defendant was a “non-resident foreign national.” 154 154 Id. at 318–19. Classification as a “non-resident foreign national” means that the defendant cannot be liable under the FCPA in an individual capacity because the defendant would not constitute a “domestic concern” under 15 U.S.C. § 78dd-2(a) (2012). The only way for the defendant to be liable under the FCPA, therefore, would be to either commit the proscribed act on U.S. territory, id. § 78dd-3(a), or act in the capacity of an “officer, director, employee, or agent” or “stockholder” of an “issuer” or “domestic concern,” id. §§ 78dd-1(a), -2(a). ... Close

On June 4, 2015, the defendant filed a motion to dismiss the count that charged him with conspiring “together with” a domestic concern to violate section 78dd-2 of the FCPA. 155 155 See Memorandum of Law in Support of Lawrence Hoskin’s Motion to Dismiss Count One of the Third Superseding Indictment at 4, Hoskins, 123 F. Supp. 3d 316 (No. 3:12-cr-238 (JBA)), 2015 WL 11018889 [hereinafter Defendant’s June 4 Motion to Dismiss]. ... Close The limited question facing the Court on this motion to dismiss was whether assuming the defendant was not an agent of a “domestic concern” within the language of section 78dd-2 (i.e., the defendant could not be found directly liable for the substantive underlying offense), the defendant could nonetheless be prosecuted for conspiracy to violate the FCPA in the capacity of a “non-resident foreign national.” 156 156 Hoskins, 123 F. Supp. 3d at 319. ... Close The ability of the defendant to escape liability thus had to turn—and did turn—on the applicability of a common law exception to general conspiratorial and accomplice liability. In other words, the defendant’s fate turned on the Gebardi principle.

3. Hoskins: Clash of the Gebardi “Principles.” — The briefs submitted in support of and in response to the June 4 motion to dismiss are telling. The respective stances the government and the defendant took on the applicability of the Gebardi principle underscore the tension between the two variants of the Gebardi principle that exist today.

a. Defendant’s Memorandum. — The focus of the defendant’s argu­ment in the memorandum in support of this motion to dismiss was as follows: “[B]ecause the . . . conspiracy charge fails to allege that Mr. Hoskins falls into any defined FCPA class, it is defective and must be dismissed.” 157 157 Defendant’s June 4 Motion to Dismiss, supra note 155, at 5. ... Close Interestingly, in support of this conclusion, the memoran­dum cites to Castle, a case that dismissed the charge of conspiracy to violate the FCPA not solely because the defendant in that case was not a member of one of the defined classes subject to FCPA liability but also because the defendant—the foreign official who received the bribe—was a necessary party to a bribe transaction. 158 158 United States v. Castle, 925 F.2d 831, 835 (5th Cir. 1991) (“[T]he very individuals whose participation was required in every case—the foreign officials accepting the bribe—were excluded from prosecution . . . . [I]t is only logical to conclude that Congress chose to exempt this small class of persons from prosecution.”); Defendant’s June 4 Motion to Dismiss, supra note 155, at 5. ... Close The twin gatekeeping require­ments of “omission” and “necessity” inherent in Gebardi as a rule of construction were of paramount importance in Castle’s ultimate dismissal of the conspiracy charge, but “omission” was deemed dispositive in the defendant’s memorandum in Hoskins. 159 159 See Defendant’s June 4 Motion to Dismiss, supra note 155, at 4 (“The new charging language of Count One confirms that the government is attempting to circum­vent clear-stated congressional intent: that the FCPA was not intended to apply to indi­viduals . . . who do not otherwise fit within one of the FCPA’s purposefully and carefully defined classes.”). ... Close The defendant’s memorandum, notwithstanding the citation to Castle, 160 160 Id. at 5. ... Close did not construe the Gebardi principle to be a narrow rule of construction; instead, it adopted its broader variant.

The fact that the defendant’s memorandum subscribed to the broader variant of the Gebardi principle is even more apparent because of its extensive focus on legislative history to support Congress’s apparent intent to immunize nonresident foreign nationals not expressly captured by the FCPA from conspiracy charges. 161 161 See id. at 5–18 (drawing on legislative history to support purported congressional intent). ... Close It was only after establishing that legislative history supports immunity that the memorandum argued that in light of the Gebardi principle, Congress’s intent cannot be circum­vented. 162 162 Id. at 18–20. ... Close This is distinct from Gebardi as a rule of construction because congressional intent to immunize is reached through a pre­sumption triggered by the structure of the statute, not through an examination of legislative history. 163 163 See supra section II.A.1 (detailing gatekeeping requirements for the narrow variant of the Gebardi principle). ... Close

b. Government’s Memorandum. — On the other hand, the govern­ment’s memorandum in response to the motion to dismiss construed the Gebardi principle as a rule of construction. It recognized that the Gebardi principle functioned as a “narrow exception” to the “long-established” rules of conspiratorial and accomplice liability, which applied only when a “necessary” party was “excluded” from prosecution for the underlying offense. 164 164 Government’s Response to June 4 Motion to Dismiss, supra note 152, at 1–2. The government also contemplated another circumstance in which the Gebardi principle might apply—when the defendant charged with conspiracy or complicity fell within the class of persons the substantive statute aimed to protect. Id. This Note, however, does not dwell on this situation, as “victims” are arguably a subset of “necessary” parties. ... Close The government also highlighted that the defendant’s memorandum misinterpreted Castle, as the decision was not only “premised . . . on the fact that the foreign officials were merely ‘exempted’ from direct liability under the statute”; it was also premised on the necessary involvement of that party. 165 165 Id. at 21. ... Close

The government’s memorandum, though it applied Gebardi as a rule of construction, also examined legislative history. 166 166 See id. at 26–33 (arguing legislative history supports congressional intent to hold the defendant liable). ... Close Relying on the same legislative materials that the defendant relied on in his memorandum, 167 167 All of the legislative materials that the government relied on in reaching its conclusion were also relied on in the defendant’s memorandum, though for an opposing end. Compare Government’s Response to June 4 Motion to Dismiss, supra note 152, at iv, with Defendant’s June 4 Motion to Dismiss, supra note 155, at ii–iii. The reports include, for example, H.R. Rep. No. 105-802 (1998); S. Rep. No. 105-277 (1998); H.R. Rep. No. 95-831 (1977) (Conf. Rep.); S. Rep No. 94-1031 (1976); 122 Cong. Rec. 30,332 (1976). ... Close the government came out on the opposite side: Congress “expressly chose to subject individuals like the defendant to [conspiracy and accessorial] liability.” 168 168 Government’s Response to June 4 Motion to Dismiss, supra note 152, at 26. ... Close

c. The Decision. — Ultimately, Judge Arterton determined that the Gebardi principle applied in this case to exempt the defendant from conspiratorial liability because the “text and structure of the FCPA” and its “legislative history” reveal that Congress “did not intend to impose accomplice liability on non-resident foreign nationals who were not subject to direct liability.” 169 169 United States v. Hoskins, 123 F. Supp. 3d 316, 327 (D. Conn. 2015). ... Close Central to her reasoning was that the Gebardi principle allowed for congressional intent to immunize a given class of persons in “other circumstances” beyond the situation laid out in the gov­ernment’s memorandum. 170 170 Id. at 322. ... Close In support of this, Judge Arterton drew heavily on the Second Circuit precedent, Amen, in which the court applied the Gebardi principle because “legislative history . . . makes it clear that the purpose [of the drug-kingpin statute] . . . was not to catch . . . those who aided and abetted the supervisors’ activities.” 171 171 United States v. Amen, 831 F.2d 373, 382 (2d Cir. 1987); see also Hoskins, 123 F. Supp. 3d at 322 (quoting a passage from Amen). ... Close As illustrated above, Amen is a case in which the court applied the broader variant of the Gebardi principle. 172 172 See supra notes 104–110 and accompanying text. ... Close The Hoskins decision thus affirmed such a broad interpretation of the Gebardi principle.

C. State of Affairs Post-Hoskins

Hoskins serves as a continued extension of the applicability of Gebardi to contexts in which the principle is no longer cabined to a narrow rule of construction and is instead applied in any instance in which the judici­ary believes Congress did not intend to penalize a certain class of persons. This section explains how Hoskins stretches the Gebardi principle beyond its preexisting jurisprudence.

1. From Necessary Parties to Unnecessary Parties. — One expansion that Gebardi has undergone since Hoskins is from a narrow application in cases involving only necessary parties to cases in which the relevant party is not necessary at all to the commission of the underlying offense. This is in line with Amen’s broadening of the Gebardi principle notably because the situation in Amen was not a bilateral transaction between a transporter and one to be transported, such as a buyer and a seller or a briber and an official to be bribed, that necessarily required such two parties on each side to commit the underlying offense; the situation was a single drug enterprise. 173 173 See supra notes 104–110 and accompanying text (discussing the application of the Gebardi principle in Amen). ... Close There was also no necessity as a product of statutory crea­tion, as the defendant Paradiso in Amen was not one of the five subordinates who were essential to the kingpin’s conviction under the CCE statute but a third-party aide. 174 174 See Amen, 831 F.2d at 381 (characterizing defendant Paradiso as a “non-employee[] who knowingly provide[d] direct assistance to the head of the organization”). ... Close

Similarly in Hoskins, the defendant was arguably not a necessary party at all, whether by function of the nature of the transaction or by function of statutory conditions. 175 175 In terms of the nature of the transaction, a bribe requires a briber and a bribe recipient but not necessarily a non-resident-foreign-national briber. Cf. Hoskins, 123 F. Supp. 3d at 327 (arguing the “text and structure” of the FCPA reveals congressional intent to immunize non resident foreign nationals against accomplice liability absent direct liability). In terms of the structure of the statute, there is no statutorily created necessity of a non-resident-foreign-national briber in order for to find FPCA liability. Id. As such, in the context of Hoskins, the defendant was in no way necessary to the bribe transaction. ... Close Unlike the defendant foreign official in Castle who played the necessary role of bribe recipient in order for the bribe to have materialized, 176 176 See supra notes 135–138 and accompanying text (discussing the necessity of the defendant bribe recipient in the bribe transaction in Castle). ... Close the non-resident-foreign-national briber was not necessary for the bribe to have materialized in Hoskins. 177 177 See supra note 175 and accompanying text (discussing the dispensability of a non-resident-foreign-national briber in the bribe transaction in Hoskins). ... Close So, just as Amen expanded the reach of the Gebardi principle to individuals neither necessary to the inherent nature of the offense nor necessary as a product of statutory creation, 178 178 See supra notes 108–108 and accompanying text (noting Amen’s expansion of Gebardi from necessary to unnecessary parties). ... Close Hoskins reinforced this expansion in the FCPA context by applying the Gebardi principle to situations in which the party in question was not necessary by any means because the bribery scheme did not require a nonresident-foreign-national briber—any briber would have sufficed.

2. From Acts to Status. — Inseparable from the shift toward opening Gebardi immunity to nonessential parties is the more fundamental shift away from applying Gebardi to a party’s substantive role and acts toward applying Gebardi to a party’s status. In Hoskins, there was no other reason for the court granting the defendant immunity but for his status as a nonresident foreign national. 179 179 See Hoskins, 123 F. Supp. 3d at 319 (limiting the question of liability under the FCPA to turn on the status as a “non-resident foreign national”). ... Close The court’s decision was divorced from any substantive role the defendant played. 180 180 See id. at 322 (concluding Congress did not intend to impose accomplice liability on bribers who are nonresident foreign nationals). ... Close Again, this is in stark contrast to prior cases in Gebardi jurisprudence in which immunity was grafted to a specific role a party played in a transaction—the woman to be transported, 181 181 E.g., Gebardi v. United States, 287 U.S. 112, 121–22 (1932) (immunizing the woman being transported from conspiratorial liability). ... Close the purchaser, 182 182 E.g., Nigro v. United States, 117 F.2d 624, 629 (8th Cir. 1941) (immunizing a drug purchaser from conspiratorial liability). ... Close or the bribe recipient. 183 183 E.g., United States v. Blondek, 741 F. Supp. 116, 119 (N.D. Tex. 1990) (immuniz­ing a bribe recipient from conspiratorial liability). ... Close It is not surprising that in a case not long after Gebardi, the Eighth Circuit assumed that Gebardi applied to an “act” and thus the individual in the capacity of having performed that “act”—not the individual per se. 184 184 Fulbright v. United States, 91 F.2d 210, 211–12 (8th Cir. 1937) (“[I]t is necessary that the act intended to be effected, in order to support a charge of conspiracy, must in some manner be prohibited by an act of Congress . . . . If the act is not prohibited by Congress, it is not unlawful to conspire to do it.” (emphasis added) (citing Gebardi, 287 U.S. at 123)). ... Close

Proponents of the broader variant of the Gebardi principle might argue that if Congress did not intend to prosecute a certain class of persons, it should be immaterial whether the principle is applied in relation to the class’s substantive acts or the class’s status; prosecuting such a class under the conspiracy or complicity statute would similarly frustrate congressional intent. In theory, this is true. In practice, however, the narrow variant of the Gebardi principle recognizes that while giving effect to congressional intent is important, giving the judiciary free reign to search for this intent is dangerous. By functioning as a rule of con­struction and limiting judicial discretion through structural gatekeeping requirements central to the inherent nature of the underlying offense and statutory language, the narrow variant of the Gebardi principle argua­bly strikes a better balance between adhering to legislative policy and curtailing judicial intuitions.

Ocasio, 185 185 See supra notes 101–102 and accompanying text (discussing the Ocasio case). ... Close however, gives cause to temper these concerns arising from the Hoskins decision and question how durable the broader variant of the Gebardi principle would be, at least in the FCPA context. Although this was a case involving extortion and not bribery, the Ocasio decision hinged on the premise that extortion was the “rough equivalent of what we would now describe as ‘taking a bribe.’” 186 186 Ocasio v. United States, 136 S. Ct. 1423, 1428 (2016) (internal quotation marks omitted) (quoting Evans v. United States, 504 U.S. 255, 260 (1992)). ... Close This suggests that since con­spir­atorial liability was found in the context of extortion in Ocasio, the Supreme Court might potentially find conspiratorial liability in the FCPA context as well, contrary to the ruling in Hoskins.

III. Finding a Single Principle

The previous Parts identified and described the problem of the Gebardi principle’s splintering. This Part will argue for the narrower framing of the Gebardi principle—in other words, the Gebardi principle as a rule of construction. To justify this interpretation and application of the Gebardi principle, this section first highlights the problematic practi­cal implications of the broader Gebardi variant in section III.A and then moves on to analogize the Gebardi principle to Wharton’s rule in section III.B.

A. Problematic Implications

The expansion of the applicability of the Gebardi principle through the emergence of the variant that allows courts to look beyond the statute itself to construct legislative intent, and Hoskins’s further expan­sion of this variant, leads to troubling implications in practice. Three main practical problems follow: (1) the inconclusiveness of legislative history; (2) undercriminalization; and (3) a more limited reach of the conspiracy statute.

1. Inconclusiveness of Legislative History. — First and foremost, this Note does not hope to join the theoretical debate on statutory interpretation and the tension between textualism and purposivism—that is well-covered ground. 187 187 See, e.g., John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev. 113, 119 (discussing the Supreme Court’s approach toward statutory interpretation as a “textually-structured” purposivism); John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 91–109 (2006) (distinguishing modern textualism from purposiv­ism); Jonathan T. Molot, The Rise and Fall of Textualism, 106 Colum. L. Rev. 1, 56–69 (2006) (arguing the end of textualism). ... Close This Note does, however, aim to highlight the practical problems that follow from the Gebardi principle interpreted and applied as its broader variant. The tension between the govern­ment’s memorandum and the defendant’s memorandum in the Hoskins case provides a case in point because reliance on the exact same pool of legislative materials resulted in opposing conclusions. 188 188 See supra notes 167–168 and accompanying text (discussing the government’s and the defendant’s reliance on the same legislative materials in their respective memoranda). ... Close

What this suggests is that legislative materials often fail to provide any clear or determinative indicator of legislative intent. As legal scholar Professor Max Radin argues, “[L]egislative history based on the ‘materials’ does not . . . enable us to discover without more ado what deter­minate situations or events are included in . . . the statute.” 189 189 Max Radin, Statutory Interpretation, 43 Harv. L. Rev. 863, 873 (1930). ... Close Professor W. David Slawson has also argued against the practicability of statutory interpretation driven by research into legislative history from the perspective of an attorney:

Legislative history requires extraordinary amounts of research. It consists, at a minimum, of committee reports, conference reports, records of committee hearings, floor statements, Presi­dential signing statements, and all previous legislation or documents of any nature to which any of the foregoing refer . . . . If a lawyer were required to become knowledgeable in the legislative history of a statute he was interpreting in order to be regarded as having acted with professional competence, most of the lawyers in this country will be guilty of malpractice. 190 190 W. David Slawson, Legislative History and the Need to Bring Statutory Interpretation Under the Rule of Law, 44 Stan. L. Rev. 383, 408 (1992). But see A. Raymond Randolph, Dictionaries, Plain Meaning, and Context in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 71, 77 (1994) (“Legislative history may be useful in filling the gap.”); Fritz Snyder, Legislative History and Statutory Interpretation: The Supreme Court and the Tenth Circuit, 49 Okla. L. Rev. 573, 577 (1996) (arguing the dangers associated with relying on legislative history in statutory interpretation are “clearly overstated”). ... Close

Consequently, interpreting and applying the Gebardi principle to exempt conspiratorial and accomplice liability whenever Congress intended to do so, while theoretically ideal, runs into very real practical issues in execution when courts have free reign to construct this con­gressional intent unmediated by rules rooted in the nature of the transac­tion and the structure of the underlying statute. The cost inherent in determining congressional intent based on extrinsic materials such as legislative history without first meeting some threshold gatekeeping requirements is the greater risk of courts replacing congressional intent with judicial intuitions.

2. Undercriminalization. — The Hoskins case and the context of the FCPA also shed light on the problem of undercriminalization should the courts stretch the Gebardi principle too far. This might seem like an outrageous argument to make, especially in view of the trends within the FCPA today and the broader trends in federal criminal law. Indeed, within the context of the FCPA, the trend has been a growing concern toward overenforcement. 191 191 See, e.g., The Anti-Bribery Business, Economist (May 9, 2015), http://www.economist.
com/news/business/21650557-enforcement-laws-against-corporate-bribery-increases-there-are-risks-it-may-go (on file with the Columbia Law Review) (discussing the risk of FCPA enforcement going too far); Is the SEC Pushing the Foreign Corrupt Practices Act Too Far?, Risk & Compliance Hub (Aug. 20, 2015), http://www.riskandcompliancehub.com/is-the-sec-pushing-the-foreign-corrupt-practices-act-too-far/ [http://perma.cc/CTL2-PY9T]; Michael Volkov, Are Prosecutors Pushing the Envelope Too Far?, Volkov (Jan. 19, 2012), http://blog.volkovlaw.com/2012/01/are-prosecutors-pushing-the-envelope-too-far/ [http://
perma.cc/BV3W-KYRL] (same). In the context of SEC enforcement of the FCPA, see Max Stendahi, Rare Scolding in FCPA Case Shows SEC Can Go Too Far, Law360 (Feb. 20, 2013, 8:05 pm), http://www.law360.com/articles/416967/rare-scolding-in-fcpa-case-shows-sec-can-go-too-far [http://perma.cc/8YM7-KGH6]. ... Close The U.S. Chamber Institute for Legal Reform has been pushing for amendments to the FCPA since October 2010, 192 192 Andrew Weissmann & Alixandra Smith, U.S. Chamber Inst. for Legal Reform, Restoring Balance: Proposed Amendments to the Foreign Corrupt Practices Act (2010), http://www.instituteforlegalreform.com/uploads/sites/1/restoringbalance_fcpa.pdf [http://
perma.cc/TFB9-6EF4]. ... Close all of which serve to curtail and circumscribe liability under the Act. 193 193 There are five primary amendments that were recommended: (1) creating a compliance defense against liability similar to the one in the U.K. Bribery Act, (2) limiting a company successor’s liability for acts taken by the acquired company prior to point of purchase, (3) requiring a mental state of “willfulness” for corporate criminal liability, (4) limiting the parent company’s liability for acts of the subsidiary, and (5) clarifying the definition of “foreign official.” Id. at 11–27. ... Close Within federal criminal law more generally, the trend has been a growing concern toward overcriminalization 194 194 E.g., Michael Pierce, The Court and Overcriminalization, 68 Stan. L. Rev. Online 50, 50–51, 58–60 (2015), http://www.stanfordlawreview.org/wp-content/uploads/sites/3/
2015/10/68_Stan_L_Rev_Online_50_MPierce.pdf [http://perma.cc/5PHX-Z42T] (discussing new substantive canon against overcriminalization). ... Close and a gradual increase in the invocation of the rule of lenity. 195 195 The rule of lenity dictates that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity” (i.e., exculpating the defendant). Yates v. United States, 135 S. Ct. 1074, 1088 (2015) (plurality opinion) (Ginsburg, J.) (citing Cleveland v. United States, 531 U.S. 12, 25 (2000)). The Harvard Law Review’s report on the rule of lenity notes United States v. Santos, 553 U.S. 507 (2008), as the point at which the Supreme Court “revitaliz[ed]” the rule of lenity. The Supreme Court, 2007 Term—Leading Cases, 122 Harv. L. Rev. 276, 475–76 (2008). ... Close Overcriminalization has been defined as a trend that refers to not only the quantitative increase in the number of criminal statutes but also the qualitative broadening of exist­ing statutes, which is inseparable from the courts’ “penchant to construe ambiguous criminal statutes broadly.” 196 196 Stephen F. Smith, Overcoming Overcriminalization, 102 J. Crim. L. & Criminology 537, 539 (2012); see also Erik Luna, The Overcriminalization Phenomenon, 54 Am. U. L. Rev. 703, 713 (2005) (noting the phenomenon of overcriminalization is not just a problem of “too many crimes” but also “what should be the boundaries of punishment”). ... Close

However, the broadening of the Gebardi principle, and the conse­quent extension of immunity from conspiratorial and accomplice liability in federal criminal law, is problematic not just conceptually but practically, too. Especially in the corporate crime context, the narrowing of the pool of individuals who could be criminally prosecuted for corporate crimes could prevent prosecution of the most culpable individ­uals due to the preeminence of multinational companies with interna­tional operations and international employees. 197 197 See generally Mark Casson, Introduction to the Growth of International Business 1, 1–2 (Mark Casson ed., 2013) (listing growth of multinational firms as one of the key contemporary developments driving research into international business and economics). ... Close This very problem was raised in the government’s brief in the Hoskins case, in which the government argued that it was strange that a “high-level” executive like the defendant who potentially played a substantial role in orchestrating the entire bribery scheme should fall through the cracks of the FCPA and be “immune from prosecution” from the outset. 198 198 Government’s Response to June 4 Motion to Dismiss, supra note 152, at 2. ... Close This is in contrast to the CCE context, in which a broader interpretation of Gebardi, while conceptually troubling, 199 199 This Note argues that a broader interpretation of the Gebardi principle in the CCE context is troubling because it disregards the twin gatekeeping requirements of the Gebardi principle in its original form by placing no analytic pressure on the element of “necessity.” See supra section II.C.1 (analyzing the shift in Gebardi jurisprudence from necessary to unnecessary parties). ... Close at the very least allows for the prosecution of the most culpable individual: the drug kingpin. 200 200 See United States v. Amen, 831 F.2d 373, 381 (2d Cir. 1987) (explaining that the purpose of the CCE statute is to target the kingpin, which is why “one cannot incur liability for aiding and abetting such a person”). ... Close Construing the Gebardi principle more narrowly is not overcriminaliza­tion but simply an applica­tion of federal criminal law to appropriately criminalize individuals who ought to be criminalized in the first place.

Furthermore, there is a case to be made that when Congress is insouciant and the executive selectively aggressive, the courts ought to play a greater role in upholding the integrity and clarity of statutes. This means minimizing both over- and undercriminalization. Arguably, while over- and undercriminalization seem to be opposites, they in fact are both symptoms of a similar problem—the tendency of courts to read breadth into ambiguities. 201 201 See supra note 196 and accompanying text (identifying courts’ “penchant to construe ambiguous criminal statutes broadly” as one of the causes of overcriminalization). ... Close For example, a court’s broad reading of a statute defining a criminal offense leads to overcriminalization; similarly, a court’s broad reading of a principle like Gebardi leads to the opposite effect. Both are not ideal, especially in contexts such as that of the FCPA, in which the legislative mechanisms to keep courts and the executive in check are in a gridlock. 202 202 In the FCPA context, no amendments to the statute have been made since 1998 in spite of recommendations for such amendments to be effected. See supra notes 192–193 and accompanying text (discussing amendments to the FCPA proposed by the U.S. Chamber Institute for Legal Reform). ... Close

3. Limiting Federal Conspiracy Liability. — The practical effect of limiting conspiratorial liability through a broad interpretation of the Gebardi principle is also especially troubling in the particular context of federal criminal law. Under the law of many states and the Model Penal Code, conspiracy is a unilateral crime. 203 203 See Peter Buscemi, Note, Conspiracy: Statutory Reform Since the Model Penal Code, 75 Colum. L. Rev. 1122, 1135–36 (1975) (“Nearly all [state] jurisdictions have elected to follow the Model Penal Code recommendation that conspiracy be redefined as a unilateral, rather than a bilateral (or multilateral), crime.”). ... Close What this means is that an individual’s violation of the conspiracy statute is not contingent on the “collaboration of several wrongdoers” but solely on the individual’s behavior. 204 204 Id. at 1136. ... Close The language of the conspiracy statute under the Model Penal Code is illustrative. In section 5.03 of the Model Penal Code on Criminal Conspiracy, conspiracy is defined as follows: “A person is guilty of conspiracy . . . to commit a crime if with the purpose of promoting or facilitating its commission he . . . agrees with such other person . . . to commit such crime . . . or . . . agrees to aid such other person in the . . . commission of such crime . . . .” 205 205 Model Penal Code § 5.03 (Am. Law Inst. 1985). ... Close The focus of the offense is on the individual’s own agreement and thus has a unilateral formulation.

On the other hand, conspiracy in federal criminal law has a bilateral formulation. 206 206 Palato v. State, 988 P.2d 512, 515 (Wyo. 1999) (“The federal [conspiracy] rule . . . takes a bilateral approach . . . .”). ... Close The federal conspiracy statute defines the crime of conspiracy not as the act of an individual agreeing with another but as the act of “two or more persons” agreeing with each other. 207 207 18 U.S.C. § 371 (2012); see also United States v. Escobar de Bright, 742 F.2d 1196, 1199 (9th Cir. 1984) (“A conspiracy is defined [under federal law] as an agreement between two or more people to commit an unlawful act . . . .”). ... Close In other words, “unless at least two people commit it, no one does.” 208 208 Developments in the Law—Criminal Conspiracy, 72 Harv. L. Rev. 920, 926 (1959); see also Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965) (“[A]s it takes two to conspire, there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy.”). ... Close The com­bined effect of a broad Gebardi exception to conspiratorial liability and the federal bilateral formulation of the conspiracy statute is that notwithstand­ing an individual satisfying all other elements of conspiracy, no conspiracy conviction can lie if the other member of the conspiracy happens to be immune or incapable of committing the conspiracy offense.

This was an issue in the Gebardi case itself. Because the court found that the conspiracy statute did not reach the woman who was trans­ported, the court also reversed the male transporter’s conspiracy charge because the bilateral formulation of federal conspiracy law meant that it was legally impossible for him to conspire with someone who was im­mune to prosecution for conspiracy. 209 209 Gebardi v. United States, 287 U.S. 112, 123 (1932). ... Close Similarly, in other cases applying the Gebardi principle, conspiracy charges against the party not technically immunized by the Gebardi principle also had to be dropped because that party could not be guilty of conspiracy without a co-conspirator. 210 210 See, e.g., Nigro v. United States, 117 F.2d 624, 629 (8th Cir. 1941) (“The proof, therefore, fails to show that Conley was a party to the conspiracy charged. It follows that appellant was not a conspirator, however guilty his own state of mind may have been. He could not conspire with himself.”); Mackreth v. United States, 103 F.2d 495, 496 (5th Cir. 1939) (“Conceding that the man was guilty of the substantive offense denounced by the statute, that alone would not make him guilty of conspiracy. He could not conspire by himself.”). ... Close

A broadening Gebardi principle—one that does not just apply as a rule of construction but as an invitation to immunize anyone the court thinks Congress intended to exclude from criminal liability under a statute—in conjunction with the bilateral formulation of conspiratorial liability under federal criminal law is problematic. As the exception broadens, this collaterally broadens the scope of individuals beyond the reach of the conspiracy statute.

B. The Wharton’s Rule Analogy

The case for a narrow Gebardi principle is more persuasive when analogized to the treatment of Wharton’s rule. In general, exceptions to the general statutes on conspiratorial and accomplice liability are meant to be of a “limited character.” 211 211 Pinkerton v. United States, 328 U.S. 640, 643 (1946). ... Close This underscores the policy choice Congress made to punish organized crime and to use the law of accom­plice liability and conspiracy as “legal tools” for this end. 212 212 Richman, Stith & Stuntz, supra note 34, at 465–66. ... Close The treatment of Wharton’s rule, a common law exception to conspiratorial liability, reflects the tightly cabined nature that other exceptions should take on.

Based on an assessment of the application of Wharton’s rule by courts, the rule has been generally applied to only a narrow set of cases involving adultery, incest, bigamy, and dueling. 213 213 Iannelli v. United States, 420 U.S. 770, 781–82 (1975) (listing “adultery, incest, bigamy, [and] duelling” as “classic Wharton’s Rule offenses”). ... Close All these criminal offenses share the same characteristics: the “general congruence of the agreement and the completed substantive offense,” “parties to the agree­ment are the only persons who participate in commission of the substantive offense,” and “immediate consequences of the crime rest on the parties themselves rather than on society at large.” 214 214 Id. at 782–83 (citing United States v. Bobo, 477 F.2d 974, 987 (4th Cir. 1973)). ... Close Notably, courts have interpreted and applied Wharton’s rule as a rule of construction. The Supreme Court made clear that Wharton’s rule does not stand for a blanket exception against double jeopardy. 215 215 Id. at 782 (citing Pereira v. United States, 347 U.S. 1, 11 (1954); Pinkerton, 328 U.S. at 643–44). ... Close Instead, it functions as a tool to further that policy by triggering a “judicial presumption” when the aforementioned statutory characteristics are met. 216 216 Iannelli, 420 U.S. at 782; see also United States v. Lebeau, No. 5:14–CR–50048–KES, 2015 WL 3886823, at *2 (D.S.D. June 24, 2015) (“Wharton’s Rule only applies if the government produces evidence that only two persons sold drugs to each other and there is no evidence of distribution to another person.”); United States v. Fedele, No. 5:10–CR–50067–003, 2014 WL 3846904, at *7 (W.D. Ark. Aug. 5, 2014) (“Wharton’s Rule is inapplicable when the conspiracy involves the cooperation of a greater number of persons than is required for the commission of the substantive offense.”). ... Close Although “legis­lative intent to the contrary” can rebut this judicial presumption, 217 217 Iannelli, 420 U.S. at 782. ... Close it is crucial that this is a search for an affirmative legislative intent not to grant immunity (i.e., to punish) and not a mere absence of a legislative intent to punish.

The treatment of Wharton’s rule—though not in any way binding on how the Gebardi principle should be treated—is instructive. The Gebardi principle should also be narrowly construed and applied as a rule of construction that triggers a judicial presumption that is rebuttable only by evidence that Congress intended to punish the parties in question, and not a green light to immunize all parties in cases in which the court can find evidence indicating Congress did not intend to punish. In the latter situation, in which the Gebardi principle is interpreted and applied in its broader variant, the search for legislative intent beyond the structure of the statute no longer serves the limited function of rebutting a judicial presumption but instead functions as the principle in itself. Just as statutory structure plays a gatekeeping role in the operation of  Wharton’s rule, it should play a similar role in the operation of the Gebardi principle, as they both stand as narrow exceptions to general federal criminal law.

Conclusion

Ultimately, this Note argues that the broadening of the Gebardi principle needs to come to a halt and advocates for a definitive reading of the principle as a narrow rule of construction rather than a broad invitation to determine legislative intent. This Note recognizes the impli­ca­tion of the appeal for a narrower Gebardi: More people would be unable to use Gebardi as a shield to deflect conviction as a conspirator or an accomplice. This is especially at odds with calls for less prosecutorial aggression in the enforcement of the FCPA. However, this Note empha­sizes the importance of adjudicative clarity and reminds naysayers of the sound policy that undergirds the conspiracy and complicity statutes, which should not be lightly annulled.