This post concerns a historic individual in terms of Foreign Corrupt Practices Act history.
Prior posts here and here provided necessary background information concerning the DOJ’s FCPA enforcement action against George McLean (a former Vice President of Solar Turbines International (“Solar”), a division of International Harvester Company). As indicated in the prior posts, McLean (and several others) were criminally charged in 1982 for FCPA and related offenses.
Unlike others in the case (and indeed unlike most other FCPA individual defendants over the course of FCPA history), McLean fought back, believed in his innocence, and for the first time in FCPA history, put the DOJ to its burden of proof. McLean won, both in terms of a pre-trial dismissal of substantive FCPA charges (see this prior post) and at trial on an FCPA conspiracy charge as he was found not guilty . The most amazing part of McLean’s story is that, for the most part, McLean fought back as a pro se defendant (in other words, he represented himself).
This post (part one in a two-part series) is presented in a Q&A format in which McLean tells his story. It is a human story to be sure and I encourage you to visit this photo montage of McLean (currently 78 years old) prior to reading the post. Even though McLean prevailed against the DOJ, his victory was not without costs. The thousands of hours he spent on his defense consumed his life and took him away from his young family, damaged his reputation, and changed his life forever.
In part one of George McLean’s story, he shares his views on several issues connected to his prosecution. McLean’s story provides a rare insight into the criminal justice system from a criminal defendant who experienced it. You will learn how McLean refused DOJ plea agreements, claimed DOJ prosecutorial misconduct, and testified in his own defense.
Beyond being a compelling human story, McLean’s story also further dispels the widely held myth that the DOJ has a high degree of success in FCPA enforcement actions when put to its burden of proof. To the contrary, before the Africa Sting defendants, before Lindsey Manufacturing, Keith Lindsey and Steven Lee, and before John O’Shea (all FCPA defendants who recently ultimately prevailed against the DOJ in FCPA enforcement actions – see here for additional reading), there was George McLean.
This is George McLean’s story in his own words.
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Q. Generally describe your life and career prior to being criminally indicted in October 1982?
A. I was born in New York City in 1934 and raised in Yonkers, New York. My father was an Assistant U.S. Attorney for the Southern District of N.Y. before he entered private practice. I graduated from Cornell University in 1958 with Bachelor of Mechanical Engineering (BME) and Master of Engineering (ME) degrees. I received a certificate of completion from the Program for Senior Executives at M.I.T. Sloane Business School in 1979. I served a short time on active duty as an enlisted man in the Navy reserve at Great Lakes, Il. in the winter of 1959-1960.
I joined the Solar Division of International Harvester in Washington, D.C. in the Spring of 1963 after working as an engineer for the Ingersoll-Rand Company in New York City for 4 years. At Solar, I worked as a sales engineer assigned to various U.S. Navy, Coast Guard and commercial airline accounts.
After I got married, my wife and I moved to Sausalito, California across the Golden Gate Bridge from San Francisco. I was establishing new sales offices in San Francisco and Anchorage for Solar at the time. We moved to San Diego in late 1970 when I was promoted to Solar’s manager of international sales. Our two daughters were born in the 1970’s.
At Solar I rose from sales engineer to Vice President with responsibilities for worldwide sales, field service, international operations and corporate development. I was also president of Solar Turbines, Ltd., a subsidiary of International Harvester. I left Solar on December 15, 1980 when I was abruptly fired without cause when I refused Harvester’s offer for me to resign. At the time, I was strongly objecting to their plan to auction Solar off to the highest bidder to help avoid bankruptcy. After 17½ years at Solar I was given 1 hour to clean out my desk and was escorted out the front door by an armed guard. Several weeks earlier they had forced my boss, the Solar division president, who was also vehemently objecting to the auction, into early retirement. It took several days for the initial shock of my abrupt firing to wear off and my bitterness over the treatment I had been dealt by my long time employer. Only a month earlier, I was interviewed as a potential candidate to replace my former boss as Solar’s president by a H.R. consultant retained by Harvester. I quickly came to the conclusion I would leave the corporate world and work for myself. I had broad experience in the design of compressors, gas turbines and electrical systems used by the oil and gas industry. And my over 15 years experience in marketing this machinery around the world had facilitated my establishment of friendly professional relationships with many potential clients. At the end of the holidays I tested the water with several potential clients for my services and received sufficient positive response to decide to establish myself as an independent engineering and business consultant. I immediately incorporated myself in California as George S. McLean & Associates, Inc.
By mid January 1981, I had landed my first consulting job and soon others. In early 1982, I contracted with Ross Hill Controls Company (RHCC), an electronics firm in Houston, Texas to develop a business plan and marketing organization for a variable frequency A.C. motor drive system product line based on solid state electronics technology. While the RHCC assignment was taking up most of my time, I undertook an urgent consulting assignment for the U.S. Dept. of Commerce on behalf of the White House to determine if a U.S. equipment and technical data embargo was successful in impeding the work on a 3000 mile natural gas export pipeline from northwestern Siberia to Western Europe.
In early September 1982, I received a phone call from a Commerce official who had learned I had been a sales executive working closely with the USSR Ministry of Gas (now Gazprom) and had negotiated contracts for Solar compressors and generators with the USSR Ministry of Foreign Trade. The Commerce official wanted to know if I could determine the effectiveness of the embargo which I said I could. I made a verbal consulting agreement with Commerce and flew from Los Angeles to Paris. After four days in Europe, I had gathered enough hard evidence to prove that the embargo was completely ineffective. I hurried back to Washington to present my findings on a Saturday meeting at the Commerce Dept. headquarters to a disappointed group of staffers from Commerce, State and the White House. The Export Administration Act was amended a week later to terminate the ill-advised embargo.
Little did I know at the time, but in the meantime, down Pennsylvania Avenue, in the Justice Department the prosecutors were busy setting me up in the Crawford indictment and as one of two scapegoats in the Harvester plea bargain as part of their brilliant prosecution strategy. For my part, I had just helped save the White House from making a bad international political situation worse if they had continued with their non effective embargo.
Q. Your indictment was part of a much broader case that also involved other individuals and companies. Your case and the related cases were the FCPA’s first mega enforcement action. Describe the circumstances giving rise to the cases?
A. The 42 page indictment document dated October 22, 1982 presents the prosecutors detailed summary of the cases. Much of this document, as far as my involvement, is incorrect and convoluted as subsequent discovery, hearings and testimony at my trial would show. Briefly, during the late 1970’s, Petroleos Mexicanos (Pemex), the national petroleum company of Mexico, purchased large quantities of gas turbine compressor equipment used to capture and transport from the well heads to processing plants high volumes of natural gas produced in association with the crude oil. The Solar Division of International Harvester Company was the dominant worldwide supplier of such equipment. I was Solar’s vice-president responsible for worldwide sales of this equipment. Crawford Enterprises, Inc., (CEI) was a broker and lessor of gas compression systems who frequently purchased equipment from Solar for resale or lease. Solar, as prime contractor, had supplied Pemex with equipment since the mid-seventies. During the period of accelerated development at Pemex in the late 1970’s, Solar had also acted as a subcontractor for CEI, who had contracted with Pemex to build complete compression plants. In early 1979 the DOJ initiated grand jury investigations into allegations that U.S. businessmen had bribed Pemex officials in violation of the new FCPA law.
I testified to the Washington grand jury on January 8, 1990, without immunity, after an 8 hour session the previous day with Harvester lawyers. On October 22, 1982, a 49 count indictment was filed in federal district court charging CEI and nine individuals. I, along with another Solar employee, was named in one count of conspiracy and 43 substantive counts of aiding and abetting CEI in violating the FCPA. Harvester was unexplainably missing from the indictment.
I later learned that the government advised my Harvester appointed lawyer in August 1981 that I was a target of the investigation; this information was withheld from me until June 1982. On June 22, 1982 a letter was sent to my Harvester appointed lawyer inviting me to testify without immunity to the Houston (indicting) grand jury. The letter was withheld until May 1983. The Harvester lawyers tried unsuccessfully during the summer of 1982 to kill the probe and they continued to assure me they would never plea bargain with the government and not to worry. They were blowing about how they had enlisted the help of the Illinois congressional delegation to help kill any indictment. I would later learn that the prosecutors were telling Harvester that I and another key Solar employee were plea bargaining. At that point the Harvester lawyers had in fact opened a secret plea negotiation with the government and they became incommunicado as far as I was concerned. I then became extremely anxious of the situation and on the morning of October 18, 1982, against the strong advise of my Harvester appointed lawyer, I directed him to contact the prosecutors conducting the Houston grand jury by phone and convey my offer to testify immediately and without immunity. They got back to him a couple of hours later and said it was too late although they continued to question witnesses for another day and a half. Also unbeknownst to me at the time the Harvester lawyers were frantically springing into action.
Several hours later during the evening of October 18th the Harvester general counsel personally delivered a 3 page memo to the U.S. Associate Attorney General and conferred with him and others at the Justice Department in Washington. The memo stated that Harvester understood the Solar president, who was also a Harvester corporate officer, would not be indicted and proposed their “respondeat superior” defense. The next morning the prosecutors at the grand jury in Houston were advised that the Associate Attorney General had ordered Harvester removed from the indictment.
At arraignment of all the Crawford defendants in Houston on November 3, 1982 there was a strong rumor circulating that Harvester was plea bargaining. On November 9, 1982, I wrote the Harvester president and told him that I was ready to help them refute any government charges because the indictment was without substance as far as Solar was concerned and that I and the other indicted Solar employee had conducted our business with Pemex under the strict guidance of the company lawyers. My letter and a similar letter from the former Solar president to the Harvester board chairman were ignored. On November 16, 1982, the Wall Street Journal reported Harvester was pleading guilty because they had very little money. I was in Houston on November 18, 1982 pursuing a consulting assignment and I attended the hearing in federal court where Harvester pleaded guilty to a one count of conspiracy to violate the FCPA while urging respondeat superior, that is, Uriarte (the other Solar employee indicted) and I were guilty simply because the government said we were guilty. Harvester was fined $10,000 and court costs. When I read the court document I was shocked to see myself labeled as being guilty and I felt stupid at having believed the information the Harvester lawyers had been feeding me. I was livid when I confronted one of Harvester’s lawyers on the sidewalk outside the court house. He threatened to withdraw their legal support if I “declared war” on Harvester.
Testimony in my Harvester civil action would later reveal the details surrounding the plea bargain. The DOJ was determined that I should be indicted and that under the Eckhardt Amendment, Harvester also had to be indicted. During the period from October 19 through November 5, 1982, Harvester lawyers understood that the prosecutors were attempting to buttress the 43 aiding and abetting charges made against me in the October 22nd indictment and to apply pressure on Harvester to accept DOJ’s theory of the case.
The Harvester lawyers accepted the proposition that Harvesster had to accept DOJ’s versions of the Information, Offer of Proof and Plea Agreement, in order to attain Harvester’s goals of a one count conspiracy charge with a $10,000 fine coupled with a commitment that Harvester would not be charged with criminal income tax evasion. Both Harvester lawyers testified that there was no evidence that Harvester was guilty of either substantive violations of the FCPA or conspiring to violate the FCPA, that Harvester was not pleading guilty because it was guilty, that Harvester had been “bludgeoned” into agreeing to the prosecution positions and the Harvester lawyer believed that “it was vital for Harvester to resolve the charges quickly before they would interfere with lender negotiations even if it meant pleading guilty against (his) wishes as a lawyer who believed there was no merit in the charges.”
In October 1983 the need was felt by Harvester management to make decisions in the best interest of Harvester and the attitude of the Harvester General Counsel was that he had to balance the responsibilities to the company and its pensioners to keep the Company alive even though no one at Harvester doubted my innocence. Harvester and its attorneys decided they could not spend the next two years or whatever it took to prove themselves in the courts. They determined to “take the least of all evils to keep the company alive” and save the maximum number of jobs which entailed setting me up as their scapegoat.
In the words of the Harvester General Counsel, “Doing ethics is the maximizing the good for the most people and minimizing the evil, and in many cases you make choices where you cannot avoid adverse consequences to a few, but you say, ‘what’s the net?’ Is there any other course of action I could have taken that would have produced more good and less ill? I couldn’t think of any I reached my conclusion after a great deal of soul-searching, and I don’t think I was missing any relevant facts when I made that decision, and I did a lot of consulting with others. I didn’t rely only on my own judgment. This was talked about with Harvester’s President, Harvester’s Chairman, and a Harvester Director, “in view of all our obligations and our trials and tribulations at the time.”
Q. When, where and how did you learn of your indictment?
A. I learned of my indictment late on the morning of October 22, 1982 when I removed a Wall Street Journal from a vending machine outside the Pennsylvania Ave. entrance to the Commerce Department building in Washington, DC. I had been collecting my consulting fees from my Russian pipeline assignment and negotiating a new retainer arrangement for other assignments. And there on the front page was an article on the indictment.
I sat on a bench and read the lengthy article. I was somewhat shocked that I was included because of the assurances to the contrary being given to me by the Harvester lawyers before the period of silence. I was puzzled by Harvester’s omission as a defendant. I was back in San Diego the next day and the headlines across the front page of the San Diego Union in bold letters was “EX-SOLAR OFFICIALS ACCUSED OF BRIBERY.” The story complete with photos and special “art” work took up the entire third page. The story had also appeared on the front pages of the New York Times, Los Angeles Times and many other prominent newspapers.
The Justice Department goes out of their way with their public relations campaigns when they plan to pressure a defendant into pleading guilty as part of their prosecution strategy as well as seeking approbation from the public. They did so in supplying the San Diego Union a more than adequate and distorted story of their investigation and indictment which put a lot of pressure on me and my wife of 17 years and our 5 and 8 year old daughters and exposed us to scrutiny and unjust ridicule in our community. When I was acquitted of the final count at trial, I was lucky to get a 4 inch single column story buried on an inside page of the San Diego Union and then only after I personally confronted the editor-in-chief about their muckraking reporting of my indictment 3 years earlier. The Wall Street Journal relegated even less inside space to the story.
Q. How did the indictment and defending yourself against the allegations specifically affect your life and career?
A. After the initial shock of the indictment wore off, I had to quickly determine where I stood, where I wanted to go and my options for getting there. I knew I was innocent of the allegations against me and I realized there was a strong cooperation between the government and Harvester lawyers which landed me in the indictment and as Harvester’s scapegoat in their plea bargain. I couldn’t figure out where the false information came from which the government used to allege the several illegal overt acts in which I was alleged to have participated in. I knew that false information was being told and that false testimony must have been sworn to.
In the course of adjudication of the Crawford and Harvester cases, there were false statements made to the courts by the government and Harvester lawyers regarding me which they knew they could get away with as long as the government could get a guilty plea from me or convict me of one felony. By the time of the Harvester guilty plea, the government had approached me with two plea offers, one in the summer of 1982 and the second on November 5, 1982. They approached me two more times on the subject, in writing on October 7, 1983 and shortly before my trial.
My answer was always no. I would never plead guilty to something I didn’t do no matter what the inducement. Also, my success in the corporate world and in private business as a consultant and running an engineering business has a lot to do with the reputation I had built for being straight forward, honest and truthful. How could I continue to successfully pursue my international consulting business if I pled guilty to international bribery? Establishing a new consulting business was taking up most of my time. My defense against the government allegations would be time-consuming even with a team of lawyers. The first thing I had to resolve was the question of my defense counsel.
On November 22, 1982, two days after the Harvester guilty plea hearing, the lawyer they appointed for me asked for $200,000 collateral to stay in the case because he was afraid that Harvester wouldn’t continue to pay his bills. He suggested I take out a mortgage in that amount on my house. Harvester had advised him that any further advancement of fees and expenses would be contingent upon me executing an undertaking to repay if found guilty and that advances would be subject to Harvester’s continuing review. In the meantime, Harvester was refusing to pay the other indicted Solar employee’s lawyer and they then fired the lawyer. I quickly decided there was no way I could work with a lawyer completely beholden to Harvester who needed to have me found guilty to justify their guilty plea wherein I was named as their scapegoat. On January 3, 1983 I released my lawyer. I couldn’t fire him because I hadn’t hired him.
In late December 1982 I visited the University of San Diego law library for the first time to start familiarizing myself with the legal system. I initiated my first law library search by thumbing through cardboard library index cards in wooden index file boxes. The next step was accessing the law books on the shelves since there was no such animal as the internet and electronic law books. There was two copying machines available for $.05 per page.
I started my legal career by reading the FCPA statute and studying the legislative history. Early in 1983, I discovered the legislative history of the Eckhardt Amendment that became very important to me. On January 7, 1983, I filed a 9 page document with the court wherein I advised the “Honorable Judge of the Court” that I could not afford a lawyer and I petitioned the court to appoint a Houston law firm to represent me or to order Harvester to pay for a lawyer of my choice who was not beholden to Harvester in any way. This motion was denied after a hearing. The court didn’t appear to have any idea of the potential cost of my defense. Also in my initial court filing I quite unabashedly described how the Harvester and government lawyers had been providing false information to the court and falsifying documents with impunity in their violations of the “Federal Conspiracy Act, the United States Attorney’s Manual, and the Code of Professional Responsibility.” I suggested a special prosecutor be appointed to investigate their gross misconduct. I was right on, but we know how far I got at that time. So began my pro se legal career.
From the time I released my Harvester appointed lawyer in January 1983 to the acquittal of the conspiracy count at trial in May 1985, I spent an estimated 3300 hours of my own time in my defense including 1860 hours in preparing 51 pleadings and 5 miscellaneous documents totaling about 550 pages for submittal to the federal trial courts in Houston, 200 pages in pleadings/documents for my four pro se 5th Circuit cases, three times as appellant and once as appellee, and 125 pages of submittals in my two unsuccessful petitions to the Supreme Court for writs of certiorari.
In addition, I spent over 300 hours traveling to hearings and meetings in various cities including 18 round trips between San Diego and Houston for hearings and trial. These hearings and meetings consumed another 400 hours. I also spent another 600 hours in preparation for trial and attendance at my 3 weeks trial. This time and the out-of-pocket expenses do not include my civil case against Harvester that overlapped the other actions and was finally settled in 1991. In my pro se “career” lasting from 1982 to 1991, I had a reasonable “batting average” in the federal court system but made all the big hits necessary to clear my record and recoup my expenses.
You can see from the hours I spent on the cases, the time away from my career and family was devastating especially in the period from the fall of 1982 until after my acquittal at trial in the spring of 1985. The adjudication of my civil suit against Harvester until its settlement in December 1991 was less intense because my neck was not in a noose with the government determined to nail me with all their tricks and chicanery.
I missed out on much of my daughters’ childhood activities when I was traveling to Houston. I missed out when I was home because I was forever preparing a document at the law library, or at home, going to the post office or FedEx office and often working late into the night and on a number of occasions all night long. I wrote my documents out by hand which I then took to a typist who didn’t have a “new-fangled” word processor. There were many copies of my documents to be made at a local shop because of the large number of defendants required to be serviced. This all put an undo burden on my wife and on our relationship. She not only had to raise our daughters on her own but she had to put up with my stress.
I fortunately had several faithful clients who believed in my innocence and gave me all the work I could handle when not tied up with work on the case. We were able to barely just get by financially for a couple of the years with my reduced income and some borrowing. I had to put my business plans on hold for three years.
Q. Nearly all the defendants in the case (corporate or individual) decided to plead guilty or no contest and declined to put the DOJ to its ultimate burden of proof. You did not choose that path but immediately began to mount a defense? Why? Did you ever consider pleading guilty? Did the DOJ ever offer you a plea agreement?
A. At the time the Crawford indictment was returned it was impossible to know what was going on behind the rumor mill. It would be revealed later during discovery that several individuals and companies who were known targets and had appeared before the Washington and/or Houston grand juries had made deals with the government and pled guilty to various charges and/or offered favorable grand jury testimony with immunity in exchange for their deal.
The biggest question mark surrounded the omission of International Harvester, a prime target, from the indictment. That question was answered less than four weeks later when International Harvester pled guilty to a single charge. The principal defendants, Crawford Enterprises, Inc. and its owner Don Crawford had already assembled a high-powered legal team and were preparing a vigorous and expensive defense and served in the role of lead counsel. The other secondary individual defendants were being represented by various counsel funded by their corporate employers who had already plead guilty. In November 1983 Uriarte, who was not guilty of anything, but could not stand the pressure when Harvester dropped his legal support, plead guilty to a single 18 USC 3 violation and was sentenced to one year of unsupervised probation. The no contest “nolo” pleas in 1985 were actually not so subtly suggested by the prosecutors who had just arrived at the Houston courtroom from Washington for a pre-trial hearing just days before the scheduled beginning of the trial. The rumor was and is that in the course of discovery at that time certain Mexican banking information involving Bechtel Corp. was revealed that could be embarrassing to the Republican party because two ex Republican cabinet officials were then senior executives at Bechtel. The nolo pleas were suggested to all the remaining defendants through their various defense counsel.
A meeting was held and everyone agreed to negotiate with the government except for me. I turned them down without hesitation. This did not sit well with some of the counsel who were basically racking up billing hours as they rode on the backs of the lead counsel who were doing all the work. They were afraid the government would back out of any deal unless all the defendants agreed to a deal, because of the added cost of a long trial for one defendant who the government had to know wasn’t guilty. And they needed my guilty plea to justify the Harvester guilty plea.
Chief Judge John Singleton invited me for a private meeting in his chambers to discuss the risks involved with me taking on the federal prosecutors pro se in a high-profile trial. I think he was also apprehensive about how he could give me a fair trial without counsel. He had already demonstrated that in the previous pre-trial hearing when he described my treatment by Harvester as being “dropped in the grease” while they got out of the case with a “parking ticket.” I had advised the court as part of pre-trial procedure that my defense would be predicated on the fact that the only reason I was in the case was because I had been set up by high-ranking DOJ officials and International Harvester as Harvester’s scapegoat. The lead DOJ prosecutor protested vehemently against my intended defense and the judge essentially took my position in a long argument from the bench with the DOJ prosecutor.
In the end, my defense was allowed. I thanked the judge in his chambers for his concern and I told him I would hire counsel if I could raise the money. I was able to borrow the necessary funds from friends and I hired Charles Sullivan, a tax lawyer who had never represented a criminal defendant and certainly not in a federal court white-collar trial. The judge gave us 10 days to prepare for a three-week trial against the team of DOJ prosecutors who had been preparing for years.
The DOJ started suggesting plea bargains long before the indictment. They offered to negotiate an attractive guilty plea with me on at least four occasions and at least once in writing which I turned down in writing. The last offer was in the courtroom just before the jury was seated. I turned down all their offers without hesitation because, first of all, I was innocent and not about to compromise my self-respect no matter what pressure they would exert on me. The DOJ prosecutors were using the old chain of command strategy of offering sweet deals to guilty underlings going up the chain of command in order to reach their objective of nailing the big guns. They were so successful early on with their plea bargain strategy that they believed the fabricated accusations of their star witness who had pleaded guilty of bribery and was cooperating with testimony to lessen his fines and avoid a possible jail term.
Q. Discuss the specifics of your defense, both pre-trial and at trial?
A. After reading the indictment I knew immediately I was innocent of all the charges and I recognized that at least several of the purported overt acts involving me were absolute fantasy. I was equally puzzled that International Harvester was missing from the indictment. I was assuming that the Harvester lawyers were still pursuing their inculpable position with the DOJ and would probably be added to the indictment at a later date. When I tried to reach the Harvester lawyers and other officials who had been professing that they would be continuing to defend the Company, Uriarte and myself against any DOJ charges because they believed in our innocence, they were suddenly incommunicado. Then credible rumors starting circulating that Harvester was plea bargaining. As naïve as I turned out to be about the legal profession at the time, I found it difficult to believe that the high-powered in-house lawyers and Harvester’s well regarded outside counsel could be giving misleading information to Uriarte and me that they would never plea bargain when they where in fact in the middle of several weeks of negotiation of a plea deal. Several weeks later my worst fears played out when Harvester pleaded guilty in November 1982 with Uriarte and me set up as their scapegoats. On January 3, 1983, I released my Harvester chosen lawyer and several days later the court denied my motion to appoint counsel for me or compel Harvester to pay my legal fees. I was at that point proceeding pro se. My first action in my own defense was on January 11, 1983 when I filed a very amateurish but effective motion to dismiss my indictment based on the “Eckhardt Amendment.”
As discovery progressed in the spring of 1983, information was extracted from the government which helped explain how I was accused of alleged wrongdoings. On June 24, 1983, the trial court issued the order and opinion dismissing the 43 aiding and abetting counts based on the Eckhardt Amendment. The trial court failed to dismiss the conspiracy count because it was a separate issue. Eventually, the government appealed and the 5th Circuit affirmed the trial court order after verbal argument. In my pro se brief, I urged the 5th Circuit to invoke their “equitable powers” and dismiss the conspiracy count. In their August 10, 1984 order, the court, in denying me, said because I had not filed a cross-appeal the issue was not properly before them.
As time rolled on into 1983 and 1984, I basically rode on the backs of the very experienced lead counsel who were racking up millions of dollars in fees. Early on I pursued an unsuccessful motion to expunge references to me in the Harvester plea bargain court papers which identified me as being guilty and I pursued a motion to separate my case from the other defendants and provide me with a speedy trial on my remaining conspiracy count. Both motions were denied and affirmed in the 5th Circuit. The 5th Circuit said my being named in the Harvester plea was of no advantage to the government in my prosecution. Little did they know at the time. The government argued that a speedy trial for me would cost the government undo expense.
When the transcript of my Washington grand jury appearance was finally made available by the government, I immediately noticed that 4 ½ pages were left blank. I knew from notes that I made immediately after I left the grand jury room that the missing pages contained information that would have made the Harvester plea bargain impossible. I motioned the court for the government to produce the missing 4 ½ pages. The government said the missing pages were colloquy between the prosecutor and the grand jury. When I persisted, the government produced a fabricated 4 ½ pages of colloquy. I questioned why would the court reporter include this alleged chatter in the transcript of my testimony? On my insistence she swore that it was a truthful transcript. About a year after my trial when I was pursuing my suit against Harvester, we took the deposition of Harvester’s former outside counsel lawyer who had briefed me before my grand jury appearance. One of the documents he produced at his deposition was the transcript of my grand jury testimony which had been serviced to him by the government at least two years earlier. This document included the 4 ½ missing pages. If I had this true copy at the time there never would have been a trial and one or more DOJ lawyers could have been facing serious misconduct charges.
My primary defense strategy was to show the jury how Solar and I had legally carried out the Pemex business under the legal guidance of its staff lawyers who were well versed in the FCPA. We felt It would be risky to rely on the manner in which the government lawyers, with the close cooperation of Harvester, had set me up in the case as Harvester’s scapegoat because it might be difficult for some jurors to swallow because they most likely would understandingly believe “lawyering” is a most honorable profession. We had 10 days to prepare for trial. The judge ordered the government to make their copies of Solar’s Pemex business files available to us. A former Solar project manager who worked on the Pemex projects made himself available to help us prepare for trial and to testify at the trial. We worked about 18 hours a day in preparation. We also lined up the retired manager of the Bechtel Corporation pipeline division as a character witness and to explain how construction was carried on in the oil and gas business.
The prosecutor turned out to be the biggest help to us. He called the former Solar president, my boss, as a witness as well as Uriarte and another top Solar Sales manager who had worked for me. They all testified strongly in my behalf both in direct and in cross-examination. The biggest help was the government’s star witness who was a former Solar salesman. On direct, he told the government’s scripted cock and bull story. On cross, he was forced to admit that key incriminating information about me that he had proffered to the government when he was plea bargaining was untrue, but he blamed the untruths on his lawyer who submitted the proffers. His believability on anything was compromised after he related the story about entertaining several of his Pemex customers in a whorehouse.
It was always key to my strategy that I take the witness stand in my own defense because I had nothing to hide. Charlie Sullivan kept me on the stand for most of a morning. My cross-examination was the piece de resistance. After the first few minutes it turned into a debate. I finally had my chance to face my accuser. The DOJ prosecutor had asked me shortly before trial why I wouldn’t plea bargain with him and I told him sarcastically that I didn’t want to deny him his “day in court.” But I also meant it. After all the government’s dirty tricks and pressure on me and my family, I wanted to clear my name in court and then go after Harvester. From the jury’s reaction to my testimony and their short deliberation before acquittal, that’s one debate I concluded I won hands down. From time to time I read the transcript of my cross-examination with satisfaction.
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Stay tuned for part two of George McLean’s story.
