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FCPA Defendant Wants To Know More About His Alleged Bribery

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As highlighted here, in September 2020 the DOJ announced that Javier Aguilar (a former employee of Vitol Inc.) was criminally charged for “his alleged participation in a five-year international bribery and money laundering scheme involving corrupt payments to Ecuadorian officials.” (In December 2020, Vitol resolved a net $90 million Foreign Corrupt Practices Act enforcement action for conduct in Brazil, Ecuador and Mexico – see here).

In November 2020, Aguilar filed a motion for a bill of particulars. Generally speaking, a bill of particulars is a request by a criminal defendant for more detailed information about the criminal charges beyond those alleged in the actual charging document. As highlighted here, the judge denied the motion.

Aguilar recently filed a motion for a Second Bill of Particular which states in summary fashion:

“The Court should grant this Motion because it seeks only what controlling Second Circuit precedent requires the government to particularize: which payments the government will argue to the jury constitute bribes paid for Mr. Aguilar’s benefit and how those payments were made. When he sought this information two years ago, the Court denied that motion after the government committed to produce discovery “in the coming weeks” that would reveal the timing, amounts, and methods of every such payment.

In the year-and-a-half since the Court’s Order, the defense has thoroughly scrutinized the government’s mounting document productions and has listened to hundreds of hours of government recordings. But despite the time, energy, and money that has gone into that investigation, the defense has yet to identify any materials containing what the government said it would produce long ago: discovery essential to identifying the payments that were allegedly made to foreign-government officials to benefit Mr. Aguilar.

Trial is now fast approaching. The Court of Appeals has made clear that it is improper to leave Mr. Aguilar guessing about which payments the government will argue constitute criminal conduct. To remedy this untenable deficiency, enforce the Court’s prior Order, and hold the government to its word before tardiness becomes unfairness, Mr. Aguilar asks the Court to order the government to provide these particulars within 21 days:

  • Request No. 1: All allegedly “corrupt[]” payments that the government will contend at trial were bribes in fact paid to the alleged Ecuadorian Officials to “influenc[e] any act or decision of such [Ecuadorian O]fficial” in his “official capacity” or to “secur[e] any improper advantage” for Defendant’s benefit. 15 U.S.C. § 78dd-3(a).

  • Request No. 2: All dates and methods of, and persons involved in making, all payments identified in response to Request No. 1.”

In its response, the DOJ stated in summary fashion:

“The defendant Javier Aguilar’s second motion for a bill of particulars should be denied. The defendant is charged with conspiring to bribe Ecuadorian officials and conspiring to launder funds associated with the bribery scheme. In support of the charges, the government has detailed the bribery scheme in a complaint and indictment against the defendant, in public charging instruments concerning three co-conspirators and the defendant’s former employer, in 25 volumes of discovery, and in the government’s previous filings and correspondence related to the defendant’s initial and now renewed motion for a bill of particulars. Despite this evidentiary detail, the defendant again demands the specific dates and amounts of all bribes to Ecuadorian officials, which he claims the government promised and failed to produce in response to his first motion for a bill of particulars. As we show below, the defendant’s motion is meritless, and he is now in possession of even more detail regarding the charges against him than when the Court denied his first motion for a bill of particulars.

As the Court recognized in denying the first motion, the defendant is not charged with making specific “downstream” bribes to Ecuadorian officials, but with conspiracy. Because the defendant has been charged with conspiracy, specific bribe payments to Ecuadorian officials are not even an essential element of the government’s case. In any event, the government has produced an extensive amount of bank records and other evidence of the “downstream” payments. And on September 30, 2022, the government sent a letter to the defendant identifying specific shell company accounts that were used by Ecuadorian officials to receive many of the bribe payments. With this information, the defendant has detailed information about the transactions the government has identified to date. The wealth of information that the government has provided more than suffices to apprise the defendant of the nature of the alleged scheme and to permit the defendant to prepare a defense and avoid unfair surprise at trial, which is all that is required at this stage. In short, the government has met its obligations and the defendant has more than sufficient notice of the charged bribery and money laundering schemes. The Court’s conclusion that no additional information is required to be provided to the defendant is just as (indeed more) sound today than it was in March, 2021. The Court should deny the motion.”

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