Amendment: The Commentary to §2B4.1 captioned "Statutory Provisions" is amended by striking "15 U.S.C. §§ 78dd-1, 78dd-2;".
The Commentary to §2B4.1 captioned "Application Notes" is amended in Note 1 by inserting ", foreign governments, or public international organizations" after "local government"; and by striking "governmental" and inserting "any such".
The Commentary to §2B4.1 captioned "Background" is amended in the sixth paragraph by striking "to violations of the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1 and 78dd-2, and".
The Commentary to §2C1.1 captioned "Statutory Provisions" is amended by inserting "15 U.S.C. §§ 78dd-1, 78dd-2, 78dd-3;" before "18 U.S.C.".
The Commentary to §2C1.1 captioned "Background" is amended by inserting after the ninth paragraph the following:
" Section 2C1.1 also applies to offenses under 15 U.S.C. §§ 78dd-1, 78dd-2, and 78dd-3. Such offenses generally involve a payment to a foreign public official, candidate for public office, or agent or intermediary, with the intent to influence an official act or decision of a foreign government or political party. Typically, a case prosecuted under these provisions will involve an intent to influence governmental action.".
Appendix A (Statutory Index) is amended in the line referenced to 15 U.S.C. § 78dd-1 by striking "2B4.1" and inserting "2C1.1";
in the line referenced to 15 U.S.C. § 78dd-2 by striking "2B4.1" and inserting "2C1.1";
by inserting after the line referenced to 15 U.S.C. § 78dd-2 following new line:
"15 U.S.C. § 78dd-3 2C1.1";
and n the line referenced to 15 U.S.C. § 78ff by striking "2B4.1" and inserting "2C1.1".
Reason for Amendment: This amendment changes the Statutory Index reference for violations of section 30A of the Securities Exchange Act of 1934 (15 U.S.C. § 78dd-1) and sections 104 and 104A of the Foreign Corrupt Practices Act of 1977 (15 U.S.C. §§ 78dd-2 and 78dd-3), from §2B4.1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery) to §2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right).
This change is made because violations of 15 U.S.C. §§ 78dd-1 through 78dd-3 involve public corruption of foreign officials and are, therefore, more akin to public corruption cases than commercial bribery cases. Violations of the 15 U.S.C. §§ 78dd-1 through 78dd-3 typically involve payments to foreign officials for the purposes of influencing their official acts or decisions, inducing them to do or omit an act in violation of their lawful duty, inducing them to influence a foreign government, or securing any improper advantage. These cases also involve payments to foreign political parties or officials, candidates for foreign political office, or persons who act as conduits to these individuals. Most cases prosecuted under 15 U.S.C. §§ 78dd-1 through 78dd-3 involve an intent to influence governmental action.
Conversely, commercial bribery cases sentenced under §2B4.1 often involve kickback and gratuity payments made to bank officials or others who accept payments in return for influence or some type of exchange from the other person. These cases typically do not involve bribery of public or governmental officials and indeed, the Commentary to the guideline makes this clear in Application Note 1.
This change also is made to comply with the mandate of a mulitlateral treaty entered into by the United States, the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. In part, this Convention requires signatory countries to impose comparable sentences in both domestic and foreign bribery cases. Domestic public bribery cases are referenced to §2C1.1. To comply with the treaty, offenses committed in violation of 15 U.S.C. §§ 78dd-1 through 78dd-3 are now similarly referenced to §2C1.1.
Effective Date: The effective date of this amendment is November 1, 2002.