Foreign Nationals Facing Extradition and Charges - 15 U.S.C. § 78dd-3

The Foreign Corrupt Practices Act (FCPA) prohibits certain bribes to foreign government officials in connection with obtaining or keeping business.

For a foreign national who lives and works outside the United States, however, an FCPA accusation raises an important threshold question: does the United States actually have the legal authority to prosecute you for the conduct alleged?

Under 15 U.S.C. § 78dd-3, the answer to that question can depend on the alleged allegation, where it was committed, and whether the accused was in U.S. territory when they took an act connected to the alleged payment.

A foreign executive can face an especially complicated situation if U.S. prosecutors obtain an indictment or arrest warrant and request international assistance in locating or arresting the person.

An INTERPOL Red Notice may alert law enforcement agencies in other countries to the U.S. request. At the same time, a separate extradition proceeding may determine whether the person is surrendered to the United States.

These are separate legal processes, and neither an indictment nor a Red Notice automatically establishes that the FCPA applies to the foreign national.

When Can the United States Prosecute a Foreign National for Conduct Outside the United States?

Section 78dd-3 applies to foreign individuals and foreign companies that are not publicly traded in the U.S., and are not U.S. citizens, residents, or U.S.-based businesses.

Essentially, this specific section of the law is a catch-all. It ensures the law applies to "everyone else" (foreigners and foreign entities) if they engage in illegal activities, like bribery, while physically inside U.S. territory.

The statute contains an important territorial requirement: the person must be in the territory of the United States when:

Using the mails,
Using an instrumentality of interstate commerce, or
Committing another act in furtherance of the alleged corrupt payment.

Meaning, being a foreign national does not automatically place every business decision made overseas under U.S. FCPA jurisdiction. The government must establish the statutory connection between the defendant, the alleged bribery, and the United States.

That issue can become particularly important when an executive lives abroad, conducts business abroad, and is accused of participating in a transaction involving foreign officials outside the United States.

The government may rely on a U.S. business connection, communications, financial transactions, travel, or other conduct to establish jurisdiction. The specific facts determine whether those allegations satisfy § 78dd-3.

For a foreign national already facing a U.S. indictment, the question isn't only whether prosecutors believe a foreign official was improperly paid. It also depends on whether the charged conduct falls within the reach of the federal statute.

What Conduct Can Lead to an FCPA Charge Under 15 U.S.C. § 78dd-3?

Section 78dd-3 addresses corrupt conduct involving money or anything of value provided directly or indirectly for specified purposes, including obtaining or retaining business or directing business to a person.

Conduct that may form the basis of an allegation includes:

Offering or providing money or anything of value to a foreign official to influence an official act
Providing a benefit to induce a foreign official to violate a lawful duty
Providing something of value to secure an improper advantage
Using an intermediary while knowing that money or another benefit will be passed to a foreign official
Making an act in furtherance of an alleged corrupt payment while physically present in the United States
Using U.S. communications or interstate commerce in connection with conduct that otherwise falls within the statute

How Does U.S. Jurisdiction Become a Defense Issue?

For a foreign executive, jurisdiction should be examined at the level of the particular conduct alleged. Prosecutors may point to a:

U.S. meeting,
Telephone call,
Email,
Bank transaction,
Business trip, or
Other conduct as the connection between the defendant and the United States.

The timing, location, purpose, participants, and relationship of the alleged U.S. conduct to the purported corrupt payment can all become important.

How Do INTERPOL Red Notices Affect a Foreign National Accused of FCPA Violations?

An INTERPOL Red Notice can create an immediate international problem for someone accused of an FCPA offense, particularly if the person regularly travels between countries.

A Red Notice is a request to law enforcement authorities worldwide to locate and provisionally arrest an individual pending extradition or similar legal action. It is based on an arrest warrant or court order issued by the requesting jurisdiction.

A Red Notice is not itself an international arrest warrant. INTERPOL does not have independent authority to arrest a person, and each member country determines what legal effect a Red Notice has under its own law.

The existence of a Red Notice does not establish that the underlying U.S. criminal charge is valid or that the United States has established jurisdiction under § 78dd-3. It creates an international law-enforcement alert based on the requesting country's process.

How Does Extradition Work in an FCPA Case?

Extradition is the formal process through which one country seeks the surrender of a person located in another country for prosecution or to serve a sentence.

In the United States, international extradition is generally treaty-based, and the applicable treaty and the law of the requested country govern the judicial and executive phases.

The extradition process is separate from the underlying FCPA prosecution. A U.S. indictment does not automatically result in an individual being physically transported to the United States.

The government must pursue the extradition process applicable to the country where the defendant is located.

Related Federal Laws

Understanding related statutes is critical because federal prosecutors rarely bring 15 U.S.C. § 78dd-3 Foreign Corrupt Practices Act charges in isolation; they routinely layer ancillary statutory violations to increase leverage, expand available evidence, and magnify potential criminal exposure during investigations.

15 U.S.C. § 78dd-1 & § 78dd-2 – Foreign Corrupt Practices Act Issuers and Domestic Concerns: Criminalizes corrupt payments to foreign officials by U.S. publicly traded companies, U.S. citizens, residents, or entities organized under U.S. law.
18 U.S.C. § 1956(a)(2)(B) – International Money Laundering: Prohibits transferring monetary instruments or funds across U.S. borders to promote foreign bribery or conceal illicit proceeds.
18 U.S.C. § 1343 – Wire Fraud: Penalizes executing or attempting to execute fraudulent schemes using international or interstate wire communications, emails, or banking transfers.
18 U.S.C. § 371 – Conspiracy to Commit Offenses Against the United States: Targets agreements between foreign executives, domestic agents, or third-party intermediaries to violate FCPA anti-bribery provisions.
18 U.S.C. § 1952 – Travel Act: Criminalizes using interstate or international travel and facilities to distribute proceeds or facilitate unlawful activity, including foreign commercial bribery.
18 U.S.C. § 3184 – International Extradition: Governs the statutory and treaty-based judicial proceedings required to arrest and surrender individuals located in foreign jurisdictions to face federal criminal charges.

Hypothetical Case Study: Foreign Executive Challenging FCPA Jurisdiction and Extradition

A Swiss national serves as the regional president of a European pharmaceutical company that sells medical equipment to government hospitals in Southeast Asia.

Federal prosecutors allege that the company paid approximately $7 million to a consulting firm controlled by a politically connected businessman.

Prosecutors contend that the consultant secretly directed portions of those payments to officials responsible for awarding hospital contracts.

The executive did not authorize each payment personally. Instead, the company's regional finance director presented him with quarterly reports showing:

Consulting expenses,
Contract awards, and
Compliance concerns.

Several internal emails warned that the consultant had unusually close relationships with government officials. Despite those warnings, the executive approved a new three-year consulting agreement and authorized increased payments.

Review of the Government's Evidence

The government's evidence also establishes a U.S. connection. Six months before approving the agreement, the executive traveled to New York for investor meetings.

While there, he participated in a video conference with the company's European compliance director and regional finance director about the consultant.

During the meeting, he instructed the finance director to “keep the project moving” and approved a revised payment schedule. Prosecutors characterize that instruction as an act in furtherance of the bribery scheme under 15 U.S.C. § 78dd-3.

The executive returned to Switzerland and did not travel to the United States again. Federal prosecutors later indicted him for FCPA violations and obtained an arrest warrant.

INTERPOL issued a Red Notice, and he was subsequently detained while traveling through a country with an extradition treaty with the United States.

Examining the Government's Evidence by Eisner Gorin LLP

The case presents substantial issues beyond whether the consultant actually bribed foreign officials. At Eisner Gorin LLP, we would examine whether the government can establish the territorial requirement of § 78dd-3 based on the executive's conduct in New York.

His physical presence in the United States is significant, but prosecutors must still connect what he did there to an act covered by the statute.

The purpose of the video conference, the information available to him at that time, and the meaning of his instruction to “keep the project moving” would therefore become important evidence.

The intermediary evidence also raises a difficult question about knowledge and intent. Prosecutors may argue that the executive's awareness of the consultant's political relationships, unusually high fees, and compliance warnings shows that he knew payments would reach government officials.

Review of the Financial Records

Our attorneys would examine whether the records actually establish that knowledge or instead show an executive approving a consultant who performed legitimate business services despite unresolved compliance concerns.

The financial records would provide another area for scrutiny.

If the consultant performed documented services and the payments corresponded to contracts, invoices, and legitimate business activity, the government would need to prove why those transactions constituted corrupt payments rather than legitimate consulting expenses.

We would address the extradition proceeding separately. Our legal team would analyze:

The applicable treaty,
The government's supporting materials, and
Whether the allegations presented for extradition correspond to the conduct charged in the U.S. indictment.

The Red Notice itself would not establish guilt or prove that § 78dd-3 applies.

Ultimately, the extradition court denies the request after finding that the United States has not satisfied the applicable treaty requirements. The U.S. prosecution then faces its own evidentiary problem.

Review of the Conference Records

After reviewing the New York conference records, prosecutors determine they cannot establish beyond a reasonable doubt that the executive's instruction concerned the alleged bribe payments rather than legitimate contract administration.

Prosecutors dismiss the FCPA charges and withdraw the extradition request.

The outcome demonstrates why an international FCPA case requires more than identifying a foreign payment and a U.S. connection.

The government must establish the statutory basis for prosecuting the particular defendant, prove the required knowledge and intent, and satisfy the separate legal requirements governing international extradition.c

Frequently Asked Questions (FAQs)

Reviewing these FAQs is essential for understanding how federal authorities establish jurisdiction over overseas executives, how INTERPOL Red Notices impact international travel, and how foreign nationals can challenge U.S. extradition proceedings.

How does 15 U.S.C. § 78dd-3 apply to foreign nationals living abroad?

Section 78dd-3 applies to foreign individuals and non-U.S. entities, requiring prosecutors to prove an act in furtherance of a corrupt payment occurred while physically present in U.S. territory.

Does a U.S. wire transfer create FCPA jurisdiction over a foreign national?

Not automatically under § 78dd-3, which requires physical presence in the U.S. when committing the act, though prosecutors often attempt to build jurisdiction through conspiracy or wire fraud charges.

What is the legal effect of an INTERPOL Red Notice?

An INTERPOL Red Notice requests global law enforcement to locate and provisionally arrest an individual pending extradition, but it is not an international arrest warrant and does not establish that U.S. charges are valid.

Can a foreign national challenge a U.S. extradition request?

Yes, foreign nationals can challenge extradition in a foreign court by demonstrating a lack of treaty compliance, establishing dual criminality deficiencies, or arguing procedural bars under local laws.

How do prosecutors prove knowledge when consultants pay foreign bribes?

Prosecutors rely on compliance warnings, red flags, high commission structures, and internal communications to establish "conscious avoidance" or willful blindness regarding an intermediary's corrupt acts.

What immediate steps should an indicted overseas executive take?

An executive should retain experienced white-collar defense counsel, avoid international travel through countries with U.S. extradition treaties, evaluate jurisdictional defenses, and request official records from INTERPOL.

The federal criminal defense attorneys at Eisner Gorin LLP are here to help. You can schedule a consultation by calling (818) 781-1570 or filling out the contact form. Our law firm is based in Los Angeles.

Foreign Nationals