Circle October 17th on your FCPA calendar. On this day, U.S. District Court Howard Matz (C.D. Cal.) will hear arguments whether the DOJ’s first and only jury trial conviction of a corporate FCPA defendant (as well as two individual defendants) should stand or be dismissed because of the DOJ’s alleged prosecutorial misconduct.
This prior post asked, based on comments Judge Matz made during a June hearing, whether the DOJ’s conviction of Lindsey Manufacturing and its executives Keith Lindsey and Steve Lee is hanging by a thread. This post summarized (and linked to) the defendants’ supplemental motion to dismiss. This post summarized (and linked to) the DOJ’s response brief.
Recently, Janet Levine (Crowell & Moring – here) and Jan Handzlik (Venable – here), counsel for the defendants, filed a reply brief (here). The issues in dispute are highly factual and the brief opens as follows. “From at least October 2008, the prosecution engaged in a course of misconduct that was both flagrant and prejudicial. Among other things, the prosecutors inserted false factual statements into their agent’s search warrant affidavit; failed to bring those statements to the agent’s attention; repeatedly used affidavits containing these falsehoods for searches and seizures; changed the contents of proposed search warrant authorizations from language that comported with the Fourth Amendment to language that allowed the case agents to conduct general searches of electronically stored information; allowed false testimony to be presented to the grand jury; shielded that false testimony and other falsehoods and failures in the investigation from disclosure to the grand jury, the Court and the Lindsey-Lee Defendants; failed to comply with disclosure orders and with Brady v. Maryland; failed to comply with this Court’s limiting instructions; and improperly and prejudicially argued willful blindness to the jury.”
In closing, defendants argued as follows. “Regardless of what terms are used to describe the prosecution’s actions — “mistake,” “misconduct,” “error” — and regardless of whether the prosecution acted willfully or not, one thing is clear: the prosecution, at the very least, recklessly and continuously disregarded its obligations to the Court, the defendants and the Constitution. The cumulative effect of this misconduct substantially prejudiced the defendants’ ability to secure a fair trial.” According to defendants, “[t]his pattern of misconduct requires dismissal with prejudice.”