Charles Hunter Hobson (a former executive of Corsa Coal) was criminally charged by the DOJ in 2022 for conspiring with others to make corrupt bribe payments to an individual associated with Al Nasr Company for Coke and Chemicals (an alleged Egyptian state-owned and state-controlled entity) to obtain and retain lucrative contracts, and other business advantages from Al Nasr. (See here for the prior post).
In advance of the scheduled February 3rd trial, this recent post highlighted various DOJ motions in limine.
One motion seeks to “preclude the Defendant at trial from offering evidence or argument related to the Government’s charging and resolution decisions …” and stated:
“In this case, the Government’s decisions to charge or not charge certain individuals or entities have no bearing on Defendant’s guilt. Accordingly, any argument or evidence about such charging decisions would be irrelevant and should be precluded. See Fed. R. Evid. 402. Here, improper arguments may include, among others, that:
• Defendant’s prosecution is unfair because the Government has prosecuted some individuals, but not others;
• the identity or quantity of individuals charged is insufficient or improper;
• the defendant’s culpability is less than other individuals or entities;
• Corsa’s declination bears on the significance of Defendant’s conduct or the sufficiency of evidence of his guilt; and/or the Government should have reached a different conclusion in its review of the case pursuant to the Executive Order, or in comparison to the disposition of other cases pursuant to the Executive Order.
In short, the Government’s decisions to charge or not charge certain individuals make no material fact in this prosecution more or less probable and have no bearing on the issue of Defendant’s guilt for the crimes alleged in the Indictment. And if a jury were to consider such evidence, it would only serve to mislead, confuse, or invite a determination on improper grounds.
For the same reasons, the Government’s decision to decline prosecution of Corsa should not be the subject of evidence or argument at trial. Corsa received a declination under the Criminal Division’s Corporate Enforcement and Voluntary Self-Disclosure Policy substantially because of its voluntary self-report and full cooperation with the Government’s investigation. The Company acknowledged the criminal conduct of its employees, agreed to disgorge profits from its criminal conduct, and committed to continued cooperation, among other things. See Corsa Declination Letter, March 9, 2023.2 The form and terms of Corsa’s criminal resolution with the United States do not bear on the facts of Defendant’s conduct here, or on the fact of his guilt.”
In response, Hobson’s counsel states:
It is relevant in this trial that Mr. Hobson’s employer, the coal company Corsa, made a deal with the Government and undersigned counsel intends to enter evidence to that extent. The defense intends to cross-examine to the utmost any person or entity that made a deal with the United States Government to receive a plea agreement, declination letter, or a promise, as undersigned counsel has done for 35 years of practice. Mr. Hobson further believes it is relevant that the only two individuals being prosecuted are salesmen and that Corsa’s executives and Board of Directors, including general counsel, who authorized the payments, are not being prosecuted. Mr. Hobson believes that this evidence is relevant to showing arbitrary prosecution. See United States v. Armstrong, 517 U.S. 456, 463 (1996).
It is Mr. Hobson’s position that Corsa and its executives and Board of Directors bought their way out of prosecution in this case via a settlement with the Government and that the two defendants being prosecuted in this case (both salesmen) were not the ones making decisions to sell coal in Egypt, pay a broker in Egypt, or authorize funds to pay a broker in Egypt. To the contrary, the salesmen were only responsible for negotiating the terms of the contract to sell coal – a proposal that had to be authorized by the Corsa executives or Board of Directors, including all monies that were sent to Egypt. Furthermore, the two salesmen, including Mr. Hobson, did not ever hand over money to anyone in Egypt and had no control over the monies that were sent to
brokers or other individuals except by way of Corsa company funds authorized by the Board.Mr. Hobson believes that employees of Corsa may testify and fully plans on cross examining any Corsa employee with regard to the mechanism through which monies were paid by the company to persons, known or unknown, in Egypt. This might certainly include information regarding the Government’s declination of prosecution towards Corsa and questions regarding the Corsa executives, Board of Directors, and general counsel’s freedom from prosecution. To grant the Government the overbroad evidentiary ruling it has requested would tie Mr. Hobson’s hands in regards to a full and complete cross-examination of Government witnesses that are alleging he is guilty of a crime and violated his constitutional right to present a defense and meaningfully
challenge the Government’s theory of prosecution.Should the Government feel a particular question is irrelevant or out of order regarding cross-examination, undersigned counsel is sure this Court will hear any relevant objection at that time. It is Mr. Hobson’s position that the only way to ensure a full and fair trial in this case is to
give him as open a cross-examination as possible. “[N]o one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case. The fact that this right appears in the Sixth Amendment of our Bill of Rights reflects the belief of the Framers of those liberties and safeguards that confrontation was a fundamental right essential to a fair trial in a criminal prosecution.” Pointer v. Texas, 380 U.S. 400, 404 (1965) (internal citations omitted).Although the Government has provided information regarding the prosecution of a few others in this case, it is fundamental that Mr. Hobson be permitted to ask any government witness as to why they were or were not prosecuted to show bias under Federal Rules of Evidence 608. To grant the Government’s motion would be too broad a restriction upon Mr. Hobson and could bar questions that could elicit proof of bias. If any individual question asked by Mr. Hobson on cross examination is irrelevant, then the Government may object to the question contemporaneously.”
