As discussed in this prior post, judicial findings of prosecutorial misconduct or other mishaps have been an all too frequent feature in contested individual Foreign Corrupt Practices Act enforcement actions.
This recent post highlighted the start of the FCPA (and related) trial of Roger Ng (a former managing director at Goldman Sachs) for allegedly paying bribes to various Malaysian and Abu Dhabi officials in connection with 1Malaysia Development Berhad (1MDB), Malaysia’s state-owned and state-controlled investment development company.
As highlighted here, the trial has been paused due to – in the words of the DOJ – an “inexcusable” error by the government. Specifically, the DOJ has acknowledged that it has failed to produce to the defense 15,500 documents of co-defendant Tim Leissner (a former Southeast Asia Chairman at Goldman Sach and Participating Manager Director who pleaded guilty and is cooperating with the government). As highlighted here, the DOJ further described the error as a “total institutional failure.”
This February 23rd letter to presiding Judge Margo Brodie (E.D.N.Y) states in pertinent part:
“On February 15, 2022, the undersigned prosecutors (the “Case Team”) discussed with the Court a production of documents that was made to the defendant on February 14, 2022, which was comprised in part of documents from email accounts and a laptop belonging to Tim Leissner that had been reviewed and released for production by a privilege review team of Department of Justice (“DOJ”) trial attorneys of the Criminal Division (the “Privilege Team”). At that time, the Court asked the Case Team whether the Privilege Team was still reviewing information related to Leissner, and whether all nonprivileged information related to Leissner had been produced to the defendant. Based on multiple representations made by the Privilege Team to the Case Team over several months, the Case Team in turn represented to the Court that the Privilege Team had completed its review of these materials, and that all nonprivileged documents had been produced to the defendant. The Case Team followed up again with the Privilege Team on the evening of February 15, 2022, and were again told that the review had been completed and there were no Leissner-related documents left to produce.
This evening at approximately 10:30 p.m., the Case Team learned that the Privilege Team failed to produce to either the defendant or the Case Team approximately 15,500 documents held by the Privilege Team related to Leissner that were not privileged (the “Nonprivileged Documents”). The basis for the Case Team’s prior representations to the defendant and to the Court are set forth below.
The Case Team has directed the Privilege Team to release for immediate production the Nonprivileged Documents. In addition, the Case Team has escalated the matter to a DOJ attorney who supervises the Privilege Team, who will oversee that production and ensure that the Privilege Team has not retained any other nonprivileged documents. Given the hour, the Case Team has not yet received an exact time when the Privilege Team will produce the Nonprivileged Documents to the defendant and the Case Team, but the Case Team has requested the production be prepared overnight, and expects to have an update in the morning.
The error by the Privilege Team is inexcusable. The Case Team will consent to a reasonable adjournment of the trial prior to the cross-examination of Leissner to permit the defendant to review the Nonprivileged Documents.”
As reported here:
“Marc Agnifilo, Ng’s attorney, said his team was “utterly deceived” by the mistake and denied access to evidence that gets at the heart of his defense.
“This is as serious as it gets from our perspective,” Agnifilo said in court Wednesday.
Discovery timelines had already been a concern for Agnifilo, who raised issues with the protracted process during pretrial hearings. The night after opening arguments, the government turned over more than 120,000 pages of discovery. Agnifilo said that, due to Covid restrictions, he was able to take only one trip to Asia to prepare for trial in late 2021, and had to do so without hundreds of thousands of documents.
“At this point, the government has goaded us into moving for a mistrial. I’m not doing that yet,” Agnifilo said, adding that such a motion may be in the pipeline if, once “every stitch of evidence” is turned over, it appears the trial can’t fairly continue.
Agnifilo said he may also file a motion to dismiss the indictment based on evidence supporting his argument that the $35 million Ng is accused of getting from 1MDB actually came from separate business between Ng and Leissner’s respective wives.
Chief U.S. District Judge Margo K. Brodie agreed to adjourn the trial before Leissner’s direct examination begins, and to give Agnifilo as much time as he needs to review the new materials. She declined Agnifilo’s request to tell the jury the reason for the delay.
“It’s especially troubling to be sitting here … after I specifically asked the government whether or not all disclosures were made,” Brodie said.
The judge acknowledged that the proceedings can’t be postponed forever.
“I don’t know what the solution is going to be ultimately,” Brodie said, “but we’re going to take it one step at a time.”
