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First Africa Sting Trial Results In Mistrial

On January 19, 2010, the DOJ announced (here [1]) a new type of FCPA enforcement action.

While not the first use of undercover techniques in an FCPA enforcement action (see here [2]), the new type of case was certainly the largest and most dramatic use of pro-active, undercover investigative techniques in the FCPA’s history.

Twenty-two executives and employees of companies in the military and law enforcement products industry were criminally indicted “for engaging in schemes to bribe foreign government officials to obtain and retain business.” However, there was no real foreign official – just FBI agents posing as representatives of a Gabon foreign official – and the case was manufactured by the government with the assistance of Richard Bistrong (an individual who previously pleaded guilty to separate FCPA violations – see here [3]).

In announcing the indictments, Assistant Attorney General Lanny Breuer called the action a “turning point.”

The cases were assigned to Judge Richard Leon (U.S. District Court for the District of Columbia). Given the number of defendants indicted, the cases were segregated into smaller units for trial.

The first trial, which started in mid-May, involved Andrew Bigelow, Pankesh Patel, John Benson Weir, and Lee Allen Tolleson. As highlighted in this [4] prior post, at the close of the DOJ’s case, Judge Leon dismissed a substantive FCPA count as to Patel, a substantive FCPA count as to Tolleson, and dismissed a money laundering count as to all defendants.

Yesterday, Judge Leon declared a mistrial as to all remaining counts of the DOJ’s “turning point” prosecution. For additional coverage see here [5] from the FCPA Blog, here [6] from Main Justice, here [7] from Reuters, here [8] from Law360, and here [9] from the Wall Street Journal Corruption Currents. [5]

Scott Fredericksen, a former DOJ prosecutor and current FCPA practitioner at Foley & Lardner (see here [10]) offered the following analysis.

“A mistrial in the Africa Sting FCPA case represents a major disappointment for the DOJ. But for those who have followed the trial, it is no surprise. Many thought outright acquittal was a real possibility. A mistrial of course is most often declared by the court where the jury has steadfastly indicated that it is unable to reach a unanimous verdict, even after the court usually gives very strong instructions urging the jury to work harder to reach a verdict. There are other situations in which a mistrial may be declared, most often involving error in the way the case is tried or the improper admission of evidence or prejudicial information. In this case, it appears there was a failure to reach unanimity by the jury on a verdict. Often times in such situations the court may allow the counsel to interview jurors about the basis for being hung, including what the final vote was. Obviously, if the vote was heavily in favor of one side, or if, as often happens, there was a lone holdout, then counsel will be able to make informed decisions about a retrial and how the case should be tried in a retrial. It is in the discretion of the court whether to allow jurors to be interviewed. Jurors must also consent. Most judges will allow some limited amount of interviewing, including only allowing the interview to take place in court. Again, it is a discretionary decision. The mistrial puts the government between the proverbial rock and hard place. The DOJ has made this prosecution a marker in their ratcheting up of their enforcement of the FCPA. It is hard to imagine that they would not seek a retrial. Yet the case likely will only get more difficult for the prosecution. The trial exposed the weaknesses of the government’s case, including their critical witnesses, the most important of which did not testify. Will DOJ change their strategy? But now defense counsel know the evidence and testimony and can cross examine with a transcript of the DOJ witnesses in hand. Waiting in the wings are another group of experienced defense counsel whose clients’ trial has been severed but already scheduled. Finally, some observers of the trial think Judge Leon was surprised and disappointed by what he saw in the government’s prosecution sting and the evidence. This looks to be only one chapter in a now much longer story.”

Indeed, it would seem that yesterday’s mistrial is merely one chapter in a much longer story. The DOJ has indicated that it intends to refile its case against all four defendants, but will a different jury make a difference? What impact will this mistrial have on the other Africa Sting cases scheduled for trial?