Foreign Commercial Bribery Confirmed as Honest-Services Wire Fraud: A Comprehensive Commentary on United States v. Lopez, 87 F.4th ___ (2d Cir. 2025)

1. Introduction

United States v. Lopez is the Second Circuit’s most significant honest-services case since United States v. Napout (2020). The decision resolves whether foreign commercial bribery—here, bribes paid to South American soccer officials to secure lucrative broadcasting rights—falls within the ambit of 18 U.S.C. § 1346’s “intangible right of honest services.” Reversing the district court’s post-trial acquittals, the Court reinstated jury verdicts against:

• Hernán Lopez, former Twenty-First Century Fox executive; and
• Full Play Group, S.A., an Argentine-Uruguayan sports marketing company.

The panel (Judges Walker, Robinson, Merriam) holds that: (1) bribery of foreign private officials can constitute honest-services fraud, (2) the fiduciary duty element was satisfied by FIFA and CONMEBOL ethics codes, and (3) Percoco and Ciminelli do not narrow § 1346 in this context. The case returns to the district court only to address an unresolved sufficiency argument concerning deception of CONMEBOL.

2. Summary of the Judgment

• The district court had vacated convictions, reasoning that after Percoco and Ciminelli § 1346 no longer covered “foreign commercial bribery.”
• The Second Circuit disagreed, vacated the acquittals, and ordered reinstatement of the jury’s guilty verdicts on conspiracy to commit honest-services wire fraud and money-laundering conspiracy.
• Key holdings:
  • § 1346 still covers core pre-McNally conduct—bribery and kickbacks—regardless of the actors’ nationality.
  • An employer-employee (or analogous) fiduciary duty suffices; FIFA/CONMEBOL codes of ethics clearly created such duties.
  • Percoco addressed duties to the public; Ciminelli addressed property fraud. Neither confines § 1346 here.
  • Foreign law need not recognize the same fiduciary concept; violation of internal codes can evidence breach.
  • Use of U.S. wires, meetings, and banking made the scheme domestic enough under existing extraterritoriality limits.

3. Analysis

3.1 Precedents Cited and Their Influence

• McNally v. United States (1987) – Removed honest-services theory from § 1341/1343 until Congress enacted § 1346.
• Skilling v. United States (2010) – Limited § 1346 to bribery and kickback schemes; provided “core” conduct framework.
• United States v. Rybicki (2d Cir. 2003) (en banc) – Defined private-sector honest-services fraud via fiduciary breach.
• United States v. Bahel (2d Cir. 2011) – Upheld conviction of UN official; first Second-Circuit recognition that foreign actors and organizations do not remove a bribery scheme from § 1346.
• United States v. Napout (2d Cir. 2020) – Affirmed honest-services convictions from same FIFA investigation; relied on FIFA/CONMEBOL ethics codes.
• Percoco v. United States (2023) – Vacated conviction of private citizen influencing government; criticized vague fiduciary-duty jury charge.
• Ciminelli v. United States (2023) – Rejected Second Circuit’s “right-to-control” theory of property fraud; cautioned against judicial expansion of fraud statutes.

The Lopez panel synthesizes these cases: it applies Skilling’s bribery core, uses Rybicki/​Bahel/​Napout for fiduciary principles, and limits Percoco/Ciminelli to their facts.

3.2 Court’s Legal Reasoning

1. No “Pre-McNally Twin” Required. The Court rejects defendants’ insistence on finding an identical pre-1987 case; § 1346 requires continuity with “core” principles, not perfect factual matches.
2. Fiduciary Duty Established. Employer-employee relationships are classic fiduciary ones; FIFA and CONMEBOL codes expressly imposed “absolute loyalty.” Breach occurred when officials accepted bribes.
3. Foreign Status Irrelevant. Citing Bahel, the Court emphasizes the statute’s focus on conduct, not nationality. Significant U.S. wires, meetings, and Fox’s funding anchor domestic jurisdiction.
4. Statutory Construction. Congress spoke through § 1346; nothing in text narrows it to domestic actors. While bribery statutes (§§ 201, 666) differ, they do not cabin § 1346.
5. Distinguishing Percoco / Ciminelli. Those cases did not alter § 1346’s application to standard employer-employee bribery. Any “signals” cannot override binding precedents.

3.3 Impact of the Judgment

The decision has wide-ranging consequences:

• Prosecution Toolkit Expanded. Federal prosecutors may now invoke § 1346 for foreign private-sector bribery schemes with U.S. contacts—particularly common in global sports, energy, and finance.
• Compliance Programs Elevated. Corporate ethics codes can serve as evidence of fiduciary duty; companies must enforce them consistently.
• Guidance on Extraterritoriality. The panel affirms that essential—not merely incidental—use of U.S. wires suffices, aligning with Bascuñán and Trapilo.
• Judicial Methodology Clarified. Courts need not hunt for exact pre-1987 prototypes; they must analyze conduct (bribery/kickback) and duty (fiduciary) against § 1346’s text and “core” teachings.
• Sports Governance Scrutiny. FIFA and regional bodies remain subject to U.S. criminal law when U.S. commerce (media rights, sponsorships, banking) is implicated.

4. Complex Concepts Simplified

• Honest-Services Fraud (§ 1346) – A crime where a defendant schemes to deprive another (often employer, client, or the public) of the intangible right to their honest, loyal services. After Skilling, it mainly targets bribery and kickbacks.
• Fiduciary Duty – A legal duty to act in another’s best interest with loyalty and care. Classic examples: employee-employer, lawyer-client, trustee-beneficiary.
• Pre-McNally vs. Post-McNally – Courts once freely used honest-services theory; McNally halted it. Congress restored it via § 1346, but courts now confine it to “core” bribery/kickback conduct.
• Foreign Commercial Bribery – Paying off private foreign officials of non-U.S. entities. Unlike the Foreign Corrupt Practices Act (focused on foreign government officials), this concerns private sector relationships.
• Essential Use of U.S. Wires – To apply U.S. wire-fraud laws to partly foreign conduct, the electronic communications through U.S. servers or banks must be integral to the fraudulent scheme.

5. Conclusion

United States v. Lopez cements the Second Circuit’s view that § 1346 reaches foreign private-sector bribery when the scheme relies on U.S. wires and the bribed officials owe fiduciary duties—here defined by clear, written ethics codes—to multinational entities. The ruling harmonizes earlier circuit precedent with recent Supreme Court decisions, rejecting an unduly narrow reading of honest-services fraud. Companies engaged in global commerce should heed the message: U.S. courts will not hesitate to police schemes that undermine the integrity of business relationships, even where the players and venues are largely abroad, provided the United States is meaningfully used as the conduit.