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On May 16, the Court of Appeals for the Eleventh Circuit became the first federal appellate court to define an important element of the Foreign Corrupt Practices Act (“FCPA”) – what constitutes an “instrumentality” of a foreign government and, thus, who is a foreign official. In United States v. Esquenazi,1 a three-judge panel adopted a broad, fact-based definition of that term. Affirming the criminal convictions of both appellants, the court held that, in order to satisfy the statute, an “instrumentality” had to be an entity that both (1) is controlled by a foreign government and (2) performs a function that the foreign government “treats as its own.” The court provided clear guidance to trial judges and juries by setting out the critical elements to be determined when applying the two-pronged test