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NCJRS Abstract

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NCJ Number: 75161 Find in a Library
Title: Application of the Mail and Wire Fraud Statutes to International Bribery - Questionable Prosecutions of Questionable Payments
Journal: Georgia Journal of International Comparative Law  Volume:9  Issue:1  Dated:(Winter 1979)  Pages:49-65
Author(s): R A Hibey
Date Published: 1979
Page Count: 17
Format: Article
Language: English
Country: United States of America
Annotation: This paper critically examines the U.S. Department of Justice
Abstract: Justice Department prosecutions of illegal payments under mail fraud laws are based on the contention that the company deprived citizens of a foreign country of the honest services of their public officials, as evidenced in U.S. versus The Williams Company. Considering that such practices are not illegal in many countries and no international treaties exist condemning bribery, these assumptions are questionable. Several Government agencies have vigorous programs which effectively investigate and deter unlawful payments, including the Securities and Exchange Commission, the Federal Trade Commission, and the Internal Revenue Services. The legal basis of any criminal prosecutions for foreign payments should be analyzed carefully, since these actions could hamper the ability of American corporations to compete in the international market and create resentment against the United States. Although Congress intended the mail and wire fraud laws to reach transactions which crossed U.S. borders, they were not necessarily meant for payments to foreign officials. Most courts have interpreted the statutes broadly and have sustained prosecutions premised on the deprivation of the citizenry of government officials< services. However, in every case of mail fraud involving a public official, the official was also a defendant. Because the foreign official cannot appear as defendant in a foreign payments case, the judicial extension of these statutes to protect citizens of another country cannot be justified. Fraud statutes have been applied to prohibit fraudulent schemes whose victims were not U.S. nationals, but the fraud deprived victims of property or things of value, not officials< services. Because the Williams accusation was neither purely a fraud perpetrated upon an identifiable person nor a violation of the U.S. public trust, case law does not provide rationales for this prosecution approach. Furthermore, the allegation that foreign citizens were deprived of public employees< services cannot be prosecuted under other antibribery laws since U.S. interests were not affected. The Williams formulation prosecutions place Government and business in needless antagonistic positions. Instead, the United States should encourage international cooperation in eliminating corruption in international business
Index Term(s): Bribery; Corruption of public officials; Foreign Corrupt Practices Act (FCPA); Foreign countries; Laws and Statutes; Postal crimes
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