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 December 2022, the DOJ filed a superseding indictment adding FCPA and related charges in connection with an alleged Mexican bribery scheme. The DOJ alleges that Aguilar “together with others, engaged in a bribery and money laundering scheme involving the payment of bribes to Mexican officials … in exchange for, among other things, securing improper advantages for Vitol in obtaining and retain business with PEMEX and PEMEX Procurement International.
Aguilar moved to sever the Mexico related charges in the Superseding Indictment from the Ecuador related charges. In summary fashion, Aguilar argued:
“After two-and-a-half years of extensive discovery on a single charge that Mr. Aguilar conspired to violate the Foreign Corrupt Practices Act (“FCPA”) by allegedly bribing government officials in connection with a fuel-oiltransaction in Ecuador (and an associated money-launderingconspiracy charge), the Court set a July 2023 date for a complex trial. For the government’s case alone, that trial was estimated to take six weeks and require 15 witnesses. In December, less than a month after the Court set this trial schedule, the government filed a superseding indictment that more than doubles the charges and alleges an entirely separate scheme to violate the FCPA in Mexico by bribing different officials in connection with different transactions. The misjoinder of these alleged schemes will transform an already demanding trial in which jurors will be asked to absorb the complicated economics of state-sponsored fuel-oil deals in Ecuador, pore over detailed bank statements and arcane financial data, and parse the credibility (through translators) of several alleged coconspirators, into a multiheaded hydra that needlessly will burden the Court and the jury and severely prejudice Mr. Aguilar. For the reasons below, the Court should sever these unrelated charges and limit the upcoming trial to the Ecuador-related charges and evidence that this Court expected to hear when it carefully set the schedule last November.
The Mexico-related allegations have almost nothing to do with the Ecuador-related charges, which means that, absent a severance, some hapless jury will be asked to spend the summer and early autumn enduring two highly complex white-collar trials in one. The only apparent connections between the two alleged schemes are that Mr. Aguilar was the alleged payor working for his employer, Vitol Inc., and that Lionel Hanst processed transfers to alleged coconspirators. There are no other facts common to the two alleged schemes. The Superseding Indictment charges the two schemes separately and makes clear that they involve different countries; different alleged coconspirators; different alleged foreign officials; different alleged modes of execution; and different kinds of contracts, commodities, and economic objectives. These two alleged schemes are different and do not belong in the same indictment, much less the same trial. Because Rule 8 prohibits this kind of misjoinder, the Court should sever.
Even if joinder of the Ecuador- and Mexico-related charges passes muster under Rule 8(a) (it doesn’t), the Court should sever under Rule 14(a). Not only would the jury and the Court have to endure extraordinary burdens in sorting through pitched battles over two entirely different charges—the prejudice to Mr. Aguilar also will be overwhelming. After the government filed the Mexico-related charges last December, it produced a vast volume of new discovery—almost none of which concerns these new charges—and has since conceded that its investigation into Mexico is far from finished. With just four months before trial, at a time when the defense has been feverishly preparing for trial on the Ecuador-related charges, Mr. Aguilar cannot be expected to pivot to these new charges and be ready. He has waited nearly three years for his day in court on the original charges, and he should have that day in July as scheduled by the Court. The only way to do that fairly is to sever the Mexico-related charges.
Moreover, charging both schemes in one trial will interfere with Mr. Aguilar’s right to testify in his own defense as to Mexico-related events while preserving his Fifth Amendment right against self-incrimination as to the very different Ecuador-related events. Binding precedent is clear that where, as here, a defendant wishes to testify on one set of charges but not another, and the charges concern unrelated offenses, a district court errs, and vacatur is required, when it fails to sever the charges to protect a defendant’s constitutional rights to pursue both those alternative courses. The defense currently expects that Mr. Aguilar would pursue alternative courses as to the two disparate charges, as is his constitutional right—and as further illustrates how completely distinct the two fact patterns are. Only separate trials would preserve this right.”
Recently, Judge Eric Vitaliano (E.D.N.Y.) denied Aguilar’s motion to sever.
In pertinent part, Judge Vitaliano stated:
“Aguilar’s journey to severance has the traditional starting point; he argues that joinder of the Mexico-related charges with the Ecuador-related charges is improper under Federal Rule of Criminal Procedure 8(a). However, the evidentiary overlap between the two sets of counts required to make joinder appropriate is clearly present here. As described in the Background section … Aguilar allegedly used two of the same co-conspirators (Hanst and Co-Conspirator #1), the same accounts, and some of the same sham agreements to conduct two conspiracies that used essentially the same means to achieve essentially the same results.
[…]
Proving the conduct of both sets of charges will therefore involve overlapping evidence as to the connections between Aguilar, Hanst, the sham agreements, and the accounts, and will involve analogous evidence as to the remainder of each conspiracy.
[…]
The similarities in origin, structure, conduct, and operation, as revealed in the Superseding Indictment itself, show that the Mexico-related charges and the Ecuador-related charges are clearly related enough to justify joinder. The Court concludes that both schemes should be considered together, and therefore holds that joinder is appropriate under Rule 8(a).”
