In late 2023, the DOJ announced the unsealing of an indictment criminally charging: Carl Alan Zaglin (the owner of a Georgia-based manufacturer of law enforcement uniforms and accessories); Francisco Roberto Cosenza Centeno (former Executive Director of the Comité Técnico del Fideicomiso para la Administración del Fondo de Protección y Seguridad Poblacional (TASA) a Honduran governmental entity that procured goods for the Honduran National Police); and Aldo Nestor Marchena (a dual citizen of the U.S. and Peru) for their alleged participation in a scheme to pay and conceal bribes to Honduran government officials to secure contracts to provide uniforms and other goods to the Honduran National Police. (See here for the prior post).
The indictment contained allegations regarding: (i) a $4.8 million uniform contract with TASA; (ii) a $5.6 million uniform contract with TASA; (iii) a $480,000 contract for tear gas launchers and ammunition; and (iv) a bid for a $7.5 million uniform contract with TASA.
Trial is scheduled to begin on September 2nd and this post takes a look at the DOJ’s recently filed motion in limine.
A portion of the motion argues that the “Court Should Preclude Evidence or Argument Related to Whether Paying Bribes Was a Common Practice in Honduras or Latin America More Generally” and states:
“The Indictment and extensive discovery produced in this case highlight that companies other than Georgia Company 1 also paid bribes in Honduras and elsewhere in Latin America. Accordingly, Zaglin may argue at trial that he should be excused from his criminal conduct either because bribery was common in the industry or because bribery was simply the way that business was done in Honduras. Such an “everybody-was-doing-it” defense would be both irrelevant and unduly prejudicial, and, therefore, the Court should exclude such evidence or argument.
First, courts regularly hold that “industry practice” or lawbreaking by others is not a
defense to a federal criminal charge. (various citations omitted).[…]
Second, even if it were somehow relevant, evidence or argument that bribery was widespread or commonplace in Honduras would invite the jury to nullify on the ground that it is unfair that Zaglin is being prosecuted while someone else is not, or that Zaglin had no choice but to break the law to succeed at his job. This obvious risk of jury nullification warrants the exclusion of such evidence or argument. (various citations omitted).”
Elsewhere, the motion argues under the heading “The Court Should Exclude Evidence or Argument Concerning Government Charging Decisions” as follows:
The Court should preclude the defendant from offering evidence or argument related to the government’s charging decisions in this case and in related cases, including as it relates to the government’s review of this case pursuant to the President’s February 10, 2025 Executive Order (the “Executive Order”).
The government’s investigation uncovered evidence regarding various individuals and entities, including uncharged co-conspirators who are anonymized in the Indictment, and it conducted a review of this case pursuant to the Executive Order. Improper argument concerning such individuals and entities or the Executive Order would include, for example, suggesting that the defendant’s prosecution is unfair because the government has prosecuted some individuals, but not others; argument concerning the identity and quantity of individuals charged in connection with the scheme at issue; comparison of the defendant’s culpability to the culpability of other individuals or entities; argument suggesting that this should be a civil rather than a criminal case and therefore the government overreached in charging the defendant; and argument that the government should have reached a different conclusion in its review of the case pursuant to the Executive Order.
The Supreme Court has long recognized that “[i]n our criminal justice system, the Government retains ‘broad discretion’ as to whom to prosecute.”
[…]
Here, the government’s decisions to charge or not charge certain individuals have no bearing on the facts of this case and would make no fact of consequence more or less probable. Accordingly, any argument or evidence about such charging decisions would be irrelevant and should be precluded. See Fed. R. Evid. 402. Moreover, even assuming evidence or argument regarding charging decisions were relevant, the Court should nonetheless preclude it because any probative value would be substantially outweighed by the danger of misleading and confusing the jurors, see Fed. R. Evid. 403, and would serve no purpose other than to enflame the passions of the jury and invite nullification.
[…]
Similarly, the government’s receipt of authorization to proceed with this prosecution
following the review mandated by the Executive Order, and the internal deliberative process that led to such permission, have no bearing on the facts of this case and would make no fact of consequence more or less probable. As the Court is aware, the government completed its review of the case and filed a Notice of Authorization to Proceed on April 11, 2025 […] Evidence or argument concerning the review would be irrelevant, would intrude on the discretion afforded to the government in criminal prosecutions […] and should be precluded. See Fed. R. Evid. 402.”
