As highlighted in prior posts here, here and here, in August 2018 the Second Circuit rejected the DOJ’s expansive jurisdictional theory of prosecution while at the same time allowing the case to proceed on the factual issue of whether Lawrence Hoskins (a U.K. national) was “an agent of a domestic concern.”
Nearly a year has since passed and with trial less than two months away lawyers for Hoskins (led by Christopher Morvillo at Clifford Chance) recently filed this motion to dismiss. In pertinent part, the brief states:
“The Speedy Trial Act clock applicable to this case expired at the end of 2018. As a matter of law, therefore, the indictment must be dismissed. Mr. Hoskins respectfully submits that the dismissal should be with prejudice because the significant harm that he has suffered due to the long delay that both preceded and followed his indictment not only violates the Speedy Trial Act, but has also deprived him of his constitutional right to a fair and speedy trial.
The allegations against Mr. Hoskins are now between 15 and 17 years old, almost old enough to vote. Indeed, the most recent alleged conduct involving Mr. Hoskins—which dates to March 2004—was already more than a decade old at the time of his arrest in April 2014. With memory lost to the mists of time, witnesses and documents missing or unavailable, and a vague and, ultimately, unsustainable legal theory pursued by the government, Mr. Hoskins’s right to a fair trial has always been in serious jeopardy.
Fairness thus in peril from the outset, Mr. Hoskins was confronted with a clash of two fundamental constitutional rights: his speedy trial right under the Sixth Amendment and his due process right under the Fifth Amendment. In reality, however, this was a Hobson’s choice: How could Mr. Hoskins proceed to trial on such old and infirm allegations without seeking necessary and unproduced discovery, challenging the invalid charges, and taking time to try to reconstruct the distant past through the review and analysis of available information? In other words, this constitutional dilemma resulted from the extraordinary, decade-long delay between the last of Mr. Hoskins’s alleged conduct and his arrest, the government’s unrelenting pursuit of an invalid legal theory, and the government’s failure to obtain and produce relevant materials.
During the painfully long period since Mr. Hoskins’s arrest in 2014, there have been occasions when the defense has acquiesced in or even requested some of the post-arrest delay, but the record in this case amply demonstrates that Mr. Hoskins’s challenges to the defective indictment and his related quest for documents central to his defenses were both meritorious and a necessary response to deficiencies in the charges and discovery. Responsibility for those deficiencies lies with the government. Beyond any delay attributable to essential motion practice to address those deficiencies, more than 13 years has elapsed through no fault of Mr. Hoskins at all, including the decade that passed between his last alleged involvement in the charged conduct and his arrest, and the three years that passed while the government pursued reconsideration and then an unsuccessful (and unnecessary) appeal of this Court’s ruling on the scope of the FCPA. Whatever the cause of the delay, the sheer amount of time that has passed since the alleged conduct occurred presents a daunting defense challenge in a matter of this complexity, one that involves primarily foreign conduct and turns in significant part on proof of Mr. Hoskins’s status, knowledge and intent.
The prejudice that flows from this protracted delay is palpable, compelling, and manifests in both profound and personal ways for Mr. Hoskins. As noted, the entirety of the conduct by Mr. Hoskins alleged in the indictment occurred between 15 and 17 years ago—between 2002 and 2004—at which point Mr. Hoskins resigned from Alstom after working at the company for less than three years. Indeed, viewing this another way, the 15 years that has elapsed since Mr. Hoskins’s departure from the company is fivetimes longer than his total tenure at the company. Unsurprisingly, Mr. Hoskins’s recollection of events from his relatively brief stint at Alstom is vague at best and ever-fading, and thus substantially undermines his ability to assist his counsel meaningfully in preparing and presenting a defense.
During his three-year tenure at Alstom, Mr. Hoskins worked mainly from Paris but travelled extensively throughout Asia Pacific and Eastern Europe, where he promoted and coordinated Alstom’s vast and varied business ventures across 38 different countries. Over the course of those three years, Mr. Hoskins had limited, high-level involvement in literally hundreds of projects. The corrosive force of time has irretrievably blurred and blended his memory of these frenzied few years, severely impairing any reliable reconstruction of the events that are so critical to this case.
Beyond the loss of Mr. Hoskins’s own memory, the sheer passage of time has also stolen other relevant evidence from this case. At least one critical witness has died (William Pomponi). Another central witness (Frederic Pierucci) has been sentenced and has returned to France. Although the government has yet to confirm whether Mr. Pierucci will testify, his appearance is doubtful, as Mr. Pierucci has very recently published a best-selling book about this case—“The American Trap”—which contains numerous false and misleading characterizations of this case, including of both his own and Mr. Hoskins’s conduct. Not only does Mr. Pierucci’s book contradict his past statements (rising swiftly to the level of Brady/Giglio material), but it has also prejudiced Mr. Hoskins by exposing him to renewed and unfair public opprobrium.
Add to this already toxic and prejudicial mix the fact that the vast majority of the alleged conduct is extraterritorial: The Court will recall that Mr. Hoskins never set foot in the United States at any time during the relevant period. As a result, most of the relevant witnesses with whom Mr. Hoskins would have interacted are located outside of the United States and, with so much time having passed since the alleged conduct, are unavailable to Mr. Hoskins and well beyond the jurisdiction of this Court. The same is true for relevant documents. As the Court is aware from previous motion practice in this matter, Alstom did not produce documents from France (where Mr. Hoskins worked) due to the French blocking statute. Thus, evidence—including, but not limited to, a complete set of his own emails—remains unavailable to Mr. Hoskins, denying him necessary context to assess and respond to the cherry-picked communications upon which the government intends to rely, and hindering his search for faded and lost recollections and other useful information to respond to these old allegations.
On a more personal level, Mr. Hoskins is 68 years old. After nearly four decades of hard work, he and his wife reached retirement shortly before he was arrested on these charges. With his arrest, the well-earned quietude of retirement has been replaced by the dissonance of constant anxiety, fear, pressure and distraction from facing aged criminal allegations. This anxiety is inexorably heightened by the fact that Mr. Hoskins is a British citizen who never worked or lived in the United States. Technical jurisdictional questions aside, the simple and harrowing truth for Mr. Hoskins is that he is faced with the daunting task of defending himself in a foreign country and before a foreign jury in a foreign legal system, far away from his home, family and friends. Suffering under the ever-present fear of this foreign prosecution over the long course of the last five years has been utterly debilitating and, for a foreign citizen like Mr. Hoskins, a unique and oppressive form of prejudice.
In addition, since his arrest on these charges five years ago, Mr. Hoskins has not only lost his retirement to this case, but he also lost the last years of his mother’s life, who died without seeing any resolution to her son’s case. Following his arrest and release from jail, Mr. Hoskins’s bail conditions prevented him from returning to England until shortly before she passed away, as she was too infirm to visit him in the United States. Beyond that very sad consequence, Mr. Hoskins’s bail restrictions have also impaired his ability to enjoy more regular visits with his two children and two grandchildren (each born post-arrest), all of whom live outside of England. Another difficult corollary of this case is the fact that the majority of Mr. Hoskins’s assets have been posted for bail, thus severely restricting, along with his bail travel restrictions, his ability to truly retire and manage his assets. Thus, due to his bail conditions alone, the long delay in resolving this matter has been consequential and injurious.
But perhaps the most difficult personal consequence of this epic delay is the fact that his wife of 44 years has recently been diagnosed with cancer. She had surgery on July 5, 2019 and will undergo radiation therapy throughout August, right when Mr. Hoskins should be returning to the United States to prepare for and stand trial. Had this matter been brought and resolved in any reasonable timeframe, he likely would have been able to be by her side throughout this time of great personal crisis. Instead, he now confronts the painfully unfair choice between either assisting his counsel in the preparation of his defense in the United States or supporting his wife during this critical period in the United Kingdom. Whichever way, with his focus divided and distracted, Mr. Hoskins’s ability to defend this case is seriously impaired, and the extraordinary delay is largely to blame.
Enough is enough. This delay was avoidable. The delay in charging and arresting Mr. Hoskins was extreme, as is the delay since his arrest, much of which is attributable to the government’s attempt to seek reconsideration and an interlocutory appeal of a tangential legal issue, for reasons that appear to have more to do with the government’s FCPA enforcement program than relevance to the case against Mr. Hoskins. Mr. Hoskins should not, under these unfair circumstances, be forced to defend conduct that is more than 15 years old. Because of the passage of time since his alleged crimes occurred, as well as the inordinate delay post-indictment (including the expiration of the Speedy Trial Act), Mr. Hoskins has been severely prejudiced. Accordingly, the Court should dismiss the indictment with prejudice.”
See here for a recent FCPA Flash podcast with Frederic Pierucci.
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