From the perspective of the FCPA's anti-bribery provisions, when an inducer intends to cause an official to misuse his or her official position, it is not relevant whether the official has the capacity to influence an official decision. In determining whether an individual or entity may be subject to liability for a violation of the FCPA, the focus should be on the intent of the individual or entity making the inducement.

Under the anti-bribery provisions of the FCPA, culpability is determined by the intent of the person making the inducement as opposed to the official's action, inaction, or capacity.[1]  The payment or offer need not be accepted in order for there to be a violation.[2]  Nor does the intended beneficiary need to have the actual authority to make or influence the official decision.[3]  Even if the payment or offer was "intended to influence an official act that was lawful," there would still be a violation.[4]

Nor is it relevant under the FCPA's anti-bribery provisions whether inducements are made directly or indirectly to a foreign government official. Any evidence of intent to influence a foreign official may be sufficient to constitute a violation of the anti-bribery provisions.

For parties to the Organisation for Co-operation and Economic Development Convention of Combating the Bribery of Foreign Public Officials in International Business Transactions (OECD Anti-Bribery Convention), the same principles apply.  Under Article 1 to the OECD Anti-Bribery Convention, parties to the Convention are required to make it a criminal offense for "any person to intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business."

[1]Kozeny, 582 F. Supp. 2d at 541.

[2]Id. (citing 1 L. Sand, et al., Modern Federal Jury Instructions-Criminal, ΒΆ 16.01, Instr. 16-6 (2008)).

[3]Id.

[4]Id.