FCPA and FEPA Charges for Diplomatic Staff: When a Goodwill Gesture Becomes a Federal Indictment

For decades, U.S. anti-bribery law had a structural blind spot. The Foreign Corrupt Practices Act, codified at 15 U.S.C. §§ 78dd-1, targeted bribe payers.

The recipients, the foreign officials who demanded, accepted, or solicited corrupt payments, were largely beyond the reach of American federal prosecution. That gap closed in December 2023 with the enactment of the Foreign Extortion Prevention Act  (FEPA).

For diplomatic staff, trade representatives, government-adjacent consultants, and anyone acting in an official or unofficial capacity on behalf of a foreign government with any U.S. jurisdictional touchpoint, the enforcement landscape has fundamentally changed.

A gesture that reads as protocol in one capital now reads as extortion in a federal indictment. If you are accused of violating either of these acts, you need a strong defense. Contact Eisner Gorin LLP today for a confidential consultation.

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The FCPA and FEPA: Two Statutes, Two Sides of the Same Transaction

Understanding the enforcement framework requires understanding how these two statutes interact: 

• The FCPA targets the supply side of foreign bribery. It prohibits U.S. citizens, companies, and certain foreign persons acting within U.S. territory from corruptly offering, paying, or authorizing anything of value to a foreign official to influence an official act, induce a violation of lawful duty, or secure an improper business advantage. The FCPA is enforced jointly by the DOJ and the SEC. Criminal penalties for individuals include up to 5 years in prison per violation, with fines up to $250,000 or twice the gross gain or loss from the corrupt payment.
• FEPA targets the demand side. FEPA makes it a crime for any foreign official, or a person selected to be a foreign official, to corruptly demand, seek, receive, accept, or agree to receive or accept, directly or indirectly, payments from certain classes of persons and entities by making use of the mails or any means or instrumentality of interstate commerce in return for taking certain actions and in connection with obtaining or retaining business. The penalties under FEPA are significantly harsher than those under the FCPA. A violation of FEPA is punishable by up to 15 years' imprisonment and a maximum fine of $250,000 or three times the monetary equivalent of the thing of value demanded by the foreign official.

Together, the two statutes now criminalize both ends of a corrupt transaction. A U.S. company that pays a bribe faces FCPA prosecution.

The foreign official who demanded or received it now faces FEPA prosecution. For the first time in the history of U.S. anti-corruption law, foreign officials have federal criminal exposure for what happens on their end of the table.

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Who FEPA Covers: The Definition of “Foreign Official” Is Deliberately Broad

One of the most consequential features of FEPA for diplomatic personnel is its expansive definition of "foreign official." Under FEPA, the term "foreign official" is defined to include:

• any official or employee of a foreign government or any department, agency, or instrumentality thereof;
• any senior foreign political figure;
• any official or employee of a public international organization; any person acting in an official capacity for or on behalf of a government, department, agency, instrumentality, or public international organization; and
• any person acting in an unofficial capacity for or on behalf of such entities.

That final category, persons acting in an unofficial capacity, is the one that most directly threatens diplomatic staff, trade attachés, government advisors, and consultants who facilitate interactions between foreign governments and U.S. business interests.

Holding a Formal Title

FEPA does not require that you hold a formal title or carry a diplomatic passport.

The definition includes individuals acting in both official and unofficial capacities for governmental agencies or entities, and expressly includes family members of government officials. The jurisdictional trigger is equally broad. FEPA applies when:

• the foreign official is physically in U.S. territory,
• when the transaction involves a U.S. issuer or domestic concern, or
• when any instrumentality of U.S. interstate commerce, including an email routed through a U.S. server, a wire transfer through a U.S. correspondent bank, or a phone call made to or from the United States, is used in furtherance of the demand or receipt.

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How the DOJ Builds FEPA Cases Against Diplomatic Targets

FEPA investigations targeting diplomatic personnel do not typically begin with the foreign official under scrutiny. They begin with the U.S. company or individual on the other side of the transaction.

The investigative sequence follows a recognizable pattern. A U.S. company either self-discloses potential FCPA exposure or is identified during a government investigation.

As part of cooperation, the company provides documentation of what it characterizes as demands made by foreign counterparts.

FEPA Investigation

Those characterizations, filtered through the company's interest in minimizing its own FCPA liability, become the factual foundation for a FEPA investigation targeting the official on the other side. From that starting point, agents build the case using:

• wire transfer records,
• email metadata,
• meeting logs,
• travel records, and
• witness interviews with company employees who participated in the disputed interactions.

Any communication that touches U.S. infrastructure becomes potential jurisdictional evidence.

A dinner invitation sent via WhatsApp, a summary memo emailed through a U.S.-based server, and a wire sent through a correspondent bank all create the interstate commerce nexus the statute requires.

Ordinary Conduct Referred

The most dangerous feature of this architecture for diplomatic targets is how ordinary conduct gets reframed. A request for a charitable donation from a U.S. company becomes a "corrupt demand."

An expectation that a meeting will be accompanied by a gift of culturally appropriate value constitutes solicitation.

A protocol-driven discussion of what the foreign government requires to advance a licensing process becomes a "demand for value in connection with retaining business."

The official never used the word bribe. The official may never have believed what they were doing was corrupt.

Under FEPA, that is not the inquiry. The inquiry is whether the demand or receipt was made corruptly, with the intent to influence an official act, in connection with obtaining or retaining business.

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What the Government Must Prove: The Elements of a FEPA Violation

To secure a conviction under 18 U.S.C. § 1352, the prosecution must establish every element beyond a reasonable doubt:

• The accused is a foreign official or person acting on behalf of a foreign official.
• A corrupt demand, solicitation, or receipt occurred.
• The demand or receipt involved anything of value, including non-monetary items.
• The conduct made use of the mails or any means or instrumentality of interstate commerce.
• The purpose was to influence an official act, to omit or delay an official act, or to use the official's influence with a foreign government.
• The connection was to obtaining or retaining business.

The intent element is where the defense most frequently finds traction. FEPA requires that the demand or receipt be made “corruptly,” meaning with the intent to improperly influence the exercise of official power.

Cultural gift-giving, standard hospitality, facilitation of protocol-driven processes, and good-faith negotiation of government requirements are not inherently corrupt.

The government must show that the specific transaction was designed to induce the official to misuse their position, not merely that value changed hands in the vicinity of a government interaction.

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FCPA vs. FEPA Penalties Overview

Key Differences in Penalties

• FEPA penalties are significantly more severe, especially in terms of prison exposure
• FCPA cases often include both criminal and civil enforcement actions
• FEPA focuses on individual liability, while FCPA often targets corporations and executives
• Both laws allow fines tied to the financial benefit involved in the conduct

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Related Federal Crimes Often Charged with FCPA and FEPA Violations

In many cases, FCPA and FEPA charges are not brought alone. Federal prosecutors frequently add related offenses to increase potential penalties and strengthen their case. Understanding these related crimes is critical when evaluating legal exposure.

Wire Fraud – 18 U.S.C. § 1343

Wire fraud involves using electronic communications, such as emails, phone calls, or wire transfers, to carry out a scheme to defraud. In FCPA and FEPA cases, prosecutors often use wire fraud charges when payments or communications pass through U.S. systems.

Money Laundering – 18 U.S.C. §§ 1956, 1957

Money laundering involves conducting financial transactions with proceeds from illegal activity to conceal their origin. Payments tied to bribery or extortion schemes are often routed through multiple accounts, which can trigger additional money laundering charges.

Conspiracy – 18 U.S.C. § 371

A conspiracy occurs when two or more people agree to commit a crime and take steps to carry it out. Even if the underlying offense is not completed, participating in a coordinated scheme involving bribery or extortion can lead to conspiracy charges.

Honest Services Fraud – 18 U.S.C. § 1346

Honest services fraud involves depriving another party of the right to honest services, typically through bribery or kickbacks. This charge is often used when officials abuse their position for personal gain.

Travel Act Violations – 18 U.S.C. § 1952

The Travel Act makes it illegal to use interstate or international travel or communication to promote unlawful activity, including bribery. This charge is commonly added when cross-border transactions or meetings are involved.

Obstruction of Justice – 18 U.S.C. §§ 1503, 1512

Obstruction of justice involves interfering with an investigation, such as destroying evidence, influencing witnesses, or providing false information. This charge can arise during an ongoing FCPA or FEPA investigation.

False Statements – 18 U.S.C. § 1001

Under Section 1001, providing false or misleading information to federal investigators is a separate criminal offense. Even minor inaccuracies during interviews or disclosures can lead to additional charges.

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Key Takeaway

FCPA and FEPA investigations often expand beyond bribery or extortion allegations. Prosecutors may build multi-charge cases that include fraud, money laundering, and obstruction offenses, significantly increasing potential penalties and legal risk.

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Frequently Asked Questions (FAQs)

What is the difference between FCPA and FEPA?

The FCPA targets those who pay bribes, while FEPA targets foreign officials who demand or receive them.

Can diplomatic staff be charged under FEPA?

Yes. The law applies broadly and can include individuals acting in official or unofficial roles connected to a foreign government.

Do I need to be physically in the United States to be charged?

No. Using U.S. financial systems, email servers, or communication channels may be enough to establish jurisdiction.

What counts as “anything of value” under the law?

This can include money, gifts, travel, entertainment, business opportunities, or other benefits.

Is gift-giving always illegal under FEPA?

No. The key issue is whether the exchange was intended to influence an official act or business decision.

Can I be investigated without knowing it?

Yes. Many cases begin with company disclosures, and individuals may not be aware until the investigation is advanced.

What should I do if I am contacted by investigators?

You should not provide statements without legal counsel. Speak with an experienced federal defense attorney immediately.

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Statutory Defenses and Diplomatic Protections Available to Foreign Officials

The FEPA defense landscape for foreign officials differs materially from the FCPA framework, and that difference matters.

Diplomatic immunity

Diplomatic agents and certain other categories of accredited diplomatic personnel retain immunity from criminal jurisdiction in the receiving state under the Vienna Convention on Diplomatic Relations.

The practical reach of this immunity depends on the official's accreditation status, the nature of their role, and whether the conduct at issue falls within the exercise of official functions.

Immunity is a threshold defense that must be raised immediately and before any substantive engagement with investigators.

Absence of corrupt intent

Because FEPA requires proof of corrupt intent, conduct that is consistent with standard diplomatic or governmental protocol, including ceremonial gift exchanges, hospitality extended in accordance with official policy, or discussions of government requirements in a regulatory context, can support an intent defense.

The government must show more than that value was requested or received. It must show that it was requested corruptly.

Lack of connection to obtaining or retaining business

FEPA applies only where the demand or receipt is connected to a business purpose for the counterparty. Official acts that are entirely regulatory, administrative, or governmental in character, with no nexus to a commercial transaction, fall outside the statute's reach.

Challenging the jurisdictional nexus

If the government cannot establish that the transaction made use of U.S. interstate commerce, FEPA jurisdiction may fail. Defense counsel scrutinizes every asserted nexus: the routing of emails, the origination and destination of wire transfers, and the location of the parties at the time of each communication.

Extortion and duress

The DOJ has historically acknowledged in FCPA opinion procedure releases that payments made in response to genuine extortion or under imminent threat do not carry the corrupt intent required for an offense.

A foreign official whose conduct was itself a response to pressure from higher authorities, or who acted under institutional direction rather than personal corrupt motive, may have a viable defense on those grounds.

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Hypothetical Case Study: Trade Attaché Charged Under FEPA Following U.S. Company's FCPA Self-Disclosure

A senior trade attaché at a foreign government's consulate in Los Angeles had facilitated licensing negotiations between that government's regulatory agency and a U.S. technology company seeking market entry.

Over 18 months, the attaché participated in a series of meetings in which the regulatory requirements for market entry were discussed, and in several of which the company provided hospitality, including dinners and travel accommodations for a site visit to the company's facilities.

The company later self-disclosed potential FCPA exposure to the DOJ. In its disclosure, the company characterized two specific interactions as "demands for accommodation" that it had felt compelled to satisfy to advance the licensing process.

The attaché was identified as a FEPA target. Defense counsel was retained before any agent contact occurred.

Defense Lawyer Investigation

Counsel's investigation developed four defense pillars.

• First, both identified interactions were corroborated by the consulate's own official hospitality logs, which documented the dinners as protocol-consistent events attended by multiple government representatives, not individual solicitations.
• Second, the site visit accommodations were booked and managed by the U.S. company on its own initiative, with no request from the attaché documented anywhere in the company's own email records.
• Third, the attaché held accredited diplomatic status at the relevant time, and counsel immediately raised a diplomatic immunity analysis with the State Department.
• Fourth, the company's internal emails showed that its legal team had characterized the same hospitality as "promotional expenses" and "relationship building" for more than a year before recharacterizing them as demands in its FCPA disclosure.

Defense counsel presented all four findings to the DOJ's FCPA Unit before any grand jury was convened. The government declined to pursue an FEPA indictment. The attaché's diplomatic status was not formally adjudicated.

The lesson: Early engagement, immediate immunity analysis, and a documented record of protocol-consistent conduct can close a FEPA investigation before it becomes a case.

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The FCPA Enforcement Pause and What It Means for Diplomatic Targets

On February 10, 2025, President Trump paused enforcement of the FCPA. The pause was lifted in a June 2025 memorandum under new guidelines.

While the pause affected FCPA enforcement against U.S. companies, FEPA is a separate statute targeting foreign officials and was not formally included in the enforcement pause.

Diplomatic targets cannot assume that the political environment in 2025 will shield them from future FEPA exposure.

The DOJ's FCPA Unit remains operational, FEPA is codified independently at 18 U.S.C. § 1352, and prosecutorial discretion under the new guidelines has not been publicly interpreted to extend to FEPA cases.

Any foreign official with U.S. jurisdictional exposure should treat FEPA as an active enforcement priority regardless of the FCPA's current political status.

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Federal Defense for Diplomatic Professionals Facing FCPA and FEPA Investigation

FEPA cases present a distinctive defense challenge. The government often builds its case on a U.S. company's self-disclosure, meaning the target may not know they are under investigation until agents are already prepared to act.

The diplomatic immunity analysis must happen immediately. The jurisdictional nexus must be challenged at the outset.

 And the conduct at issue, often years of routine diplomatic interaction, must be reconstructed from contemporaneous records before the government's narrative hardens.

Eisner Gorin LLP's federal defense team represents foreign officials, diplomatic staff, trade representatives, and government-adjacent professionals facing FCPA and FEPA investigation and prosecution.

For more information on how the attorneys at Eisner Gorin LLP can help, contact our offices today for a confidential consultation.

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