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Crossing Richard Bistrong

Today’s post is from Mike Madigan, Paul Calli, and Chas Short who represented individuals in the DOJ’s failed Africa Sting Foreign Corrupt Practices Act enforcement action.

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Convicted federal felon Richard Bistrong is speaking at an FCPA Blog conference today about his role in the failed Africa Sting prosecution. In Bistrong’s tout about the occasion [1], he said “it will be the first time I’ve publicly discussed my role in the Sting” and he dubbed it “one more cross examination about the Africa Sting.”

You may remember the Africa Sting case, in which the government manufactured a fake “crime” with Bistrong at the center and every accused person was vindicated. The truth won out; Bistrong and his FBI puppeteers were unsuccessful.

We won’t be paying money to attend the FCPA Blog conference to hear Bistrong have “one more cross examination.” We’re familiar with the real cross examination. We were there.

In this post, we share our observations regarding Bistrong’s real cross examination and highlight various facts from information and records in the public domain.

As the Washington Post reported [2], Bistrong repeatedly “joked” with his FBI agent handlers about “sex, booty calls, prostitutes, cigars, the Village People, the informant’s wives and an agent’s girlfriend. They even pondered who might play their roles in a movie based on their sting.”

It was not without drama when sometime in November 2011 after two years of pretrial litigation and DOJ’s first unsuccessful effort which resulted in a hung jury in the first Africa Sting trial (during which the government elected to not call its star witness), that Bistrong entered the court room to begin a month of testimony.

It really was “all eyes” in the court room on the person about whom everyone had heard so much, and you could hear a pin drop.  After all, in a text message later introduced into evidence Bistrong wrote to his FBI handler, “tell [the lead DOJ prosecutor] that I’m an ace on cross exam!”

At trial, Bistrong gave a certain portrayal of himself on the witness stand and tried to get the jury to believe he was someone they could trust. However, Bistrong’s words, tone and demeanor recorded on tape and in text messages with his FBI handlers could not be reconciled with the Bistrong that he tried to sell while on the witness stand. Everyone in the courtroom heard the Bistrong on the tapes as compared to Bistrong’s courtroom demeanor. After a while, many of the jurors appeared to turn away from him and couldn’t look at him as he testified.

As the jury foreperson wrote in an FCPA Professor guest post [3]:

“more than one juror voiced concern that it would be unjust for the defendants in this case to be convicted when the government relied so heavily on Mr. Bistrong who freely admitted on the stand more illegal acts than the entire group of defendants was accused of…” and “the jury with near unanimity found nearly all of the prosecution witnesses to be evasive and combative.”

One goal of the cross-examination of Bistrong was to expose the fakery and stagecraft with which the FBI and Bistrong tried to surround their manufactured offense. To that end, defense attorney Eric Dubelier crossed Bistrong about a fake seal of Gabon that the government counterfeited in order to be able to stamp documents related to the transactions at issue.  Mr. Dubelier had Bistrong admit that he told one of the defendants that the FCPA didn’t apply to a supposed Gabonese government official (actually an FBI agent doing some playacting) and accordingly the foreign official didn’t need to sign the certification.  One of Bistrong’s FBI agent “handlers” told him to say as much.

Defense lawyer Steve Bronis was next in the cross-examination of Mr. Bistrong and started:

[Question by Mr. Bronis]. [Y]ou have told this jury in the years before you became an informant that you lied and deceived many people, correct?

[Answer by Bistrong]. Correct.

Q: You lied to and deceived law enforcement officials and law enforcement agencies, correct?

A: Correct.

Q: You even lied in court proceedings and attempted to obstruct justice in courts of law, correct?

. . .

Q: Any court. You did that?

A: Yes, sir, I did.

Mr. Bronis next moved into lies Bistrong told the defendants to try to rope them into the scenario that the government had concocted. The series of questions began:

Q: Mr. Bistrong, in that call we just heard, you told Mr. Giordanella a whole series of lies; correct?

A: Specifically, sir?

Mr. Bronis then confronted Bistrong with three lies in a single voice mail that Bistrong left.

The cross-examination also revealed troubling aspects of Bistrong’s relationship with his FBI handlers. For instance, just before a conference in Washington, Bistrong joked that an FBI agent could watch him have sex with a female sales agent in their hotel suite. “Nasssssssty,” The FBI agent replied.  Meanwhile, Bistrong didn’t hesitate to poke fun at the agent. Not even the FBI Agent’s Irish girlfriend was off limits. In a text message to the agent, Bistrong joked he had downloaded a movie called “Irish Girls Go Wild in Barbados.”  “U [expletive] [expletive],” the FBI agent texted back.

This was par for the course as far as Bistrong’s texts with the FBI agents went. Defense lawyer David Krakoff crossed Bistrong about how he and his handlers treated the phony set-up like a football game.

[Question by Mr. Krakoff]. Why don’t you read that to the ladies and gentlemen of the jury.

[Answer by Bistrong.] Sure. “Great. Let’s enjoy the weekend. It’s been quite a week. I guess they are all going to start getting more intense. Keep calling the plays. I enjoy running them.”

. . .

Q: And what was his response?

A: “You won the Heisman at the college level, but now you are in the pros.

Q: And what was your response?

A: “It’s definitely the premier league, but the coaching is all there . . . . “

Q: And his response?

A: “Excellent. The play gets faster, but the game is still the same.”

Q: You and Agent Forvour looked at this as a game, didn’t you?

It sure seemed like a game to Bistrong and there were lots of ‘rah-rah’ text messages that flowed back and forth between Bistrong and his handlers. Defense attorney Charlie Leeper covered some of these on cross as well:

[Question by Mr. Leeper]. Would you read what you wrote please?

[Answer by Bistrong]. Sure. “Major takedown in your home state today. Domestic corruption, easy stuff but it was a nice looking blue bus. Rabbis went down. What a surprise.”

Q: The word “takedown” is FBI lingo for arrest; isn’t that right?

A: Yes, sir.

Q: Who taught you that?

A: I probably heard that from one of the agents.

. . .

Q: And what did you mean by “Rabbis went down. What a surprise?”

A: I was probably making fun of myself and some of the other participants who were Jewish.

We recall Bistrong seeming terrified of defense attorney Steve McCool, who would take long pauses and stand and stare at Bistrong, after Bistrong would ramble on from the witness stand while under oath in federal court.

Defense lawyer Mike Madigan crossed Bistrong on his extensive track record of addiction and drug abuse (at the time of trial, he was being drug tested quarterly).  For instance, Bistrong was spending at least $15,000 a month on his cocaine habit alone and also testified to being into hard-core pornography which, for good measure, he even had “code names” for (aka “calendars”).

This was the person to whom the prosecution had hitched its wagon, and seemingly befriended. This is the person the prosecutors were asking the jury to believe. The jurors listened carefully in disbelief.

At the end of the months long trial, following the jury’s rejection of Bistrong and rendering “not guilty” verdicts, the presiding judge – United States District Judge Richard J. Leon — observed at one point that “I think it’s pretty well established he has a long track record of lying. There is no question about that.” Much later, at Bistrong’s sentencing [4], Judge Leon offered the most concise, poignant, and important summary of the case:

“We certainly don’t want the moral of the story to be: Steal big. Violate the law big. Cooperate big. Probation.”

We do not need to hear Bistrong’s version of his cross examination at trial where the jury rejected his testimony and the prosecution’s phony FCPA sting.

The real thing will do just fine, thank you.