Marsha Z. Gerber, Richard Craig Smith, Guy Singer and Paul Simon
December 8, 2011
On December 1, 2011, U.S. District Court Judge A. Howard Matz vacated the conviction of and dismissed the indictment against Lindsey Manufacturing Company ("LMC") and two individual co-defendants, Keith E. Lindsey ("Lindsey"), and Steve K. Lee ("Lee") (collectively, the "Lindsey Defendants") because of prosecutorial misconduct. The case was the first case since enactment of the U.S. Foreign Corrupt Practices Act ("FCPA" or the "Act") in which a corporate defendant was tried and convicted for FCPA violations. In dismissing the indictment with prejudice, Judge Matz harshly criticized the prosecution team for having made so many varied "mistakes" over a lengthy period between 2008 and 2011 that "they add up to an unusual and extreme picture of a prosecution gone badly awry." The forty-one page Order can be found here.
Judge Matz detailed in his Order what he found to be prosecutorial transgressions sufficiently serious to warrant dismissal with prejudice. In taking the action he did, Judge Matz distinguished his criticism of the prosecution team by pointing out that "In this Court's experience, almost all of the prosecutors in the Office of the United States Attorney for this district consistently display admirable professionalism, integrity and fairness." The Department of Justice ("DOJ") has filed a Notice of Appeal in the case.
Following a five week trial, the Lindsey Defendants were each convicted on May 10, 2011 on one count of conspiracy to violate the FCPA and five counts of FCPA violations. The jury deliberated for one day before returning its verdict. The defendants were charged with having bribed two high ranking officials of Mexico's state-owned utility company, Comisión Federal de Electricidad ("CFE"), to obtain contracts for LMC. Specifically, the Lindsey Defendants were charged with having used a Mexican national named Enrique Aguilar ("Aguilar") and his company Grupo International de Asesores S.A. ("Grupo") to funnel the alleged bribes to the CFE officials.
The case was closely watched and is noteworthy for a number of reasons. First, as stated, it was the first FCPA case in recent history in which a corporate defendant had chosen to litigate the Government's charges to verdict. Second, several seminal issues were addressed, including the Government's broad interpretation of "foreign official" and "instrumentality" under the Act. Judge Matz ruled against the defendants on those issues, signaling a judicial willingness to side with the Government in its aggressive stance on substantive interpretation of the FCPA. Third, the case was heavily litigated by both sides, with the defendants having brought complaints of what they claimed to be prosecutorial misconduct to the Court's attention on several occasions before, during, and after trial. Prior to his ruling last week, while Judge Matz had shown concern during trial with certain actions taken by the Government, he noted in his Order that he had given the prosecution team significant leeway, citing strong judicial reluctance to find intentional prosecutorial misconduct. Finally, despite the cited reluctance to find government misconduct, Judge Matz ultimately and "with deep regret" found in this case that the prosecution "was marred by" a wide "range of misconduct" and therefore "throws out the convictions" of the Lindsey Defendants. The Court also cited its own failure during the fast-paced and at many times acrimonious trial in failing to see "the proverbial forest for the trees," stating that "it was difficult to step back and look into whether what was going on reflected not isolated acts but a pattern of invidious conduct."
Findings Of Misconduct
The Order stated that several instances of misconduct on the part of the Government "undoubtedly affected the verdicts and thus substantially prejudiced the Lindsey Defendants."
Findings of Pre-Indictment Misconduct
False and Misleading Warrant Affidavits
Judge Matz found that an affidavit executed in order to obtain a search warrant for LMC's business premises contained false statements. Specifically, the Court found that in more than one place the affidavit stated that LMC had made payments to another Aguilar controlled company when that was not the case. Judge Matz held a pre-trial hearing on the matter under Franks v. Delaware, 438 U.S. 154 (1978), to address the false statements and determine if the warrant should be voided. At that hearing, according to the Order, the FBI agent who executed the final affidavit disclosed that one of the prosecutors had inserted the false statements into the agent's final executed affidavit without the agent's knowledge. Judge Matz ultimately ordered production of all 14 drafts of the affidavit, after which it was revealed that the first 12 drafts did not contain the false statements. Nevertheless, at the Franks hearing on the affidavit the Judge found probable cause without the false statements and declined to void the search warrant. In recounting the various acts of what the Court now found to have been misconduct, the Order also noted that the false language at issue was contained in five other affidavits executed after the first affidavit, and had been used to support search or seizure warrants in the case.
Finally, in his post-verdict consideration of what Judge Matz held to be cumulative prosecutorial misconduct, the Judge also noted that the first search warrant affidavit was additionally misleading in what it did not contain. He explained that during the Frankshearing on the first affidavit, the Government also disclosed for the first time that the affidavit had failed to include the fact that approximately $430,000 in the Grupo account used to fund the alleged bribes to the CFE officials came from someone other than LMC. The Order indicates that it was this information that led the Court to require the prosecution to produce all drafts of the affidavit.
Warrantless Search of Two LMC Buildings
Judge Matz also noted that FBI agents compounded the harm caused by the first affidavit containing the false information by searching not only the LMC building covered by the warrant, but also searching two LMC buildings that were not covered by the warrant.
Purposeful Insertion of Improper Language in Search Warrant
The Order also revealed that the FBI improperly reviewed electronically stored information ("ESI") found on seized LMC computers, as a result of improper language in the search warrant. According to Judge Matz, the language authorized the case agents instead of a "filter" team to review the ESI. The Court noted that it had previously found the error to be attributed to "clumsy drafting, not bad faith." However, in the Order, Judge Matz stated that although he still found "that this violation was not invidious . . . the improper language . . . was not present in 11 of the 14 versions of the warrant, thereby permitting the inference that the Government purposely inserted it in the final version."
Grand Jury Testimony of FBI Agent
Judge Matz was particularly troubled by the grand jury testimony of one of the FBI agents ("the Agent"), who testified before the grand jury four times in order to obtain the indictment against the Lindsey Defendants. The Order addressed six instances of what the Court held amounted to false and or misleading testimony.
- During two of the Agent's grand jury appearances, according to the Order, the prosecutors displayed a chart connecting in an unbroken line both LMC and a company from another FCPA investigation to both Sorvill, the alleged intermediary in the other investigation, see n.10 supra, and Grupo. The Court found that by doing so, the Agent's testimony "suggest[ed] a non-existent link between LMC and Sorvill" and was similar to the false statements regarding Sorvill contained in the first search warrant affidavit. 
- The Order also discussed the Agent's testimony regarding a July 3, 2006 contract between LMC and Grupo during which the Agent testified that the contract was created and executed in response to an IRS audit questioning the payment of 30% commissions to Grupo. Judge Matz corrected the record, saying that, "In fact, LMC had no notice of any audit when that contract was executed, and the IRS audit that LMC did learn about later on did not relate to tax year 2006 or to commissions."
- The Court said that prior to the grand jury testimony, the Agent received copies of several contracts totaling $8 million LMC had entered into with CFE before retaining Aguilar. The contracts were either in English or translated into English. In response to a grand juror's question as to whether Lindsey had a history of winning CFE contracts, the Agent nevertheless testified that LMC did not have much business with CFE before Aguilar became LMC's sales representative.
- According to the Order, the Agent testified that in response to FBI questioning when the search warrants for the LMC premises were executed, Lee was interviewed and said that he "[d]idn't want to know. Just didn't want to know" what the 30% commission (to Grupo) was going to be used for. Judge Matz noted in his Order that (a) the Agent was not present at the interview of Lee; (b) the FBI's memorandum of that interview contained no such statement; and (c) the prosecutors acknowledged that Lee never made such a statement.
- The Agent testified to the grand jury, also as recounted in the Order, that in response to an IRS audit, Lee told LMC's bookkeeper to reclassify the Grupo commissions before turning documents over to LMC's accountant. The Order stated that, in fact, the conversation Lee had with the accountant was not related to an audit and, with one possible exception, the commissions were not reclassified.
- In response to a question from a grand juror, the Order noted that the Agent testified that as much as 90-95% of the funds in the Grupo account came from LMC. However, in an earlier affidavit, the Agent had accurately stated that LMC's deposits into Grupo's account totaled only approximately 70% of the funds. Judge Matz noted in the Order that the "material difference between these sworn statements is something even [the FBI] acknowledged at trial."
Judge Matz made special note of the testimony discussed in the latter four points above; all given during the Agent's final appearance before the grand jury on October 21, 2010, the day the indictment was returned against the Lindsey Defendants. The Judge found that each was "indisputably material," having been reflected in the Government's theories of the case before the grand jury and at trial. Judge Matz also noted that some of that testimony was directly responsive to questioning from the grand jury.
Finally, the Order recited potentially exculpatory omissions in the Agent's grand jury testimony. While the prosecution correctly argued and Judge Matz acknowledged that the Government was not obligated to present exculpatory evidence to the grand jury, the Order stated that "While viewed in a vacuum, the Government…is correct…the omissions are not irrelevant because [the standard to be applied for the dismissal motion] is whether, in its totality the Government's conduct was so improper and harmful to the Defendants as to have violated their rights, undermined the very foundations of judicial integrity, or otherwise been so egregious as to require a deterrent sanction."
Findings of Post-Indictment Misconduct
Failure to Produce the Agent's Grand Jury Testimony
In discussing what he considered to be additional misconduct following the indictment, Judge Matz acknowledged that the Agent's numerous errors in the grand jury testimony did not establish that perjury was knowingly committed. The Court speculated instead that "perhaps [the Agent] was sloppy, or lazy, or ill-prepared by the prosecutive team" and concluded that the prosecution had determined that the Agent would be a poor witness and "that its investigation was terribly flawed." Judge Matz further concluded and cited the prosecution's acknowledgement that they wanted to keep the Agent from testifying in order to avoid questions about the investigation.
Thus, under established principles, if the Agent would not testify at trial, the Lindsey Defendants were not entitled to see transcripts of her grand jury testimony unless they contained exculpatory material. However, in the Order Judge Matz revealed that he had ordered the Agent to testify in a hearing on one of the Defendants' Motion to Suppress a statement he was alleged to have made during the search of the LMC premises. Following that hearing, "in light of several major problems that had surfaced in the suppression hearing testimony," and upon the Defendants' Motion For Production of all transcripts of the Agent's testimony, the Court inspected the grand jury testimony transcripts in camera and then ordered that the prosecution produce all transcripts of the Agent's grand jury testimony to the Lindsey Defendants.
After having been admonished by the Court on several occasions for failing to meet discovery obligations, discussed in the Order, the prosecution represented on April 7, 2011 that it had conducted "a top to bottom review of discovery" and that "[w]e have done what we believe not only meets our obligation but exceeds it." At the time of the representation, none of the Agent's grand jury testimony had been produced to the Lindsey Defendants, nor were any produced until eight days later and ten days after opening statements were given at trial. In the course of the post-verdict Motion To Dismiss activity, the prosecution disclosed that it had not turned over the transcript from the Agent's October 14, 2010 testimony.
Angela Aguilar's Privileged Communications
According to the Order, Angela Aguilar was in custody through the conclusion of the trial. Judge Matz had granted a "filter team" AUSA's ex parte application filed on January 28, 2011 to permit the prosecution to obtain telephone conversations recorded by the Bureau of Prison ("BOP") between Angela and Enrique Aguilar. Later, the prosecutors disclosed that as early as December 9, 2010, the lead prosecutor had obtained from BOP not only the phone conversations that were the subject of the ex parte application, but also copies of Angela Aguilar's emails, some of which included communications between Angela Aguilar and her attorneys. According to the Order, the prosecutors neither sought nor obtained the Court's permission to receive these emails and misrepresented how they had obtained them.
Testimony Regarding Another Case
According to Judge Matz, the prosecutors improperly elicited testimony from a witness who pleaded guilty in a different case involving bribery of CFE officials. Even after a limiting instruction from Judge Matz, the prosecutors used this testimony in closing argument. Although Judge Matz had overruled an objection at the time, in dismissing the case, Judge Matz stated, "in retrospect, [the Court] should not have [overruled the objection]. . . . The suggestion that Lee and other LMC witnesses had any connection to [the prosecution's witness] or ever even knew anything about him was not only misleading, but contrary to the Court's ruling."
"Willful Blindness" Closing Argument
Before closing arguments at trial, Judge Matz had rejected prosecutorial requests to give the jury stand-alone instructions regarding "deliberate ignorance" or "willful blindness." Despite this, during closing arguments, prosecutors stated that "the law is saying you can't turn a blind eye[.]" Judge Matz sustained an objection to this statement, but the prosecutor then told the jury that the Lindsey Defendants "cannot see all of this smoke and all of these red flags and then close their eyes," and covered his eyes with his hands. In the Order, Judge Matz carefully pointed out that the prosecutor at fault "was not directly or personally responsible for the numerous other forms of misconduct" and that his actions could have been "entirely unintentional". Nevertheless, Judge Matz found that "Now that the Court has had the benefit of appraising . . . in light of the supplemental briefing [on the Motion to Dismiss] . . . the Court finds that this improper argument undoubtedly resonated with at least some of the weary jurors."
Analysis and Conclusions – Lessons From the Lindsey Case
In his Order, Judge Matz made it clear that he was displeased by many of the actions of the prosecutors in this case, saying that, "The prosecutor's job isn't just to win, but to win fairly, staying well within the rules." It is therefore tempting to interpret this case as a judicial attempt to curtail the aggressive enforcement strategies employed by the Government in FCPA investigations over the past several years, but it is not clear that the case will have such a pervasive impact.
Despite the ultimate dismissal and harsh words of the Court in its Order, during the trial Judge Matz ruled in the prosecution's favor on many motions, including eight previous motions to dismiss the indictment. Of those previous motions to dismiss, at least five were premised upon claims of prosecutorial misconduct. Equally important, Judge Matz ruled against the defendants on substantive motions challenging the Government's broad interpretation of the FCPA.
It is probable that Judge Matz's rebuke to the Lindsey prosecution team and resulting dismissal will instill caution in the Government in determining whether to seek indictment in the first instance and how it proceeds if it chooses to do so. For example, a factor the Court appeared to consider in dismissing the indictment against the Lindsey Defendants is that, in the Court's estimation, "[t]he case against the Lindsey Defendants was far from compelling." However, Judge Matz included in his Order that the Lindsey Defendants are not entitled to a finding of factual innocence. He also pointed out the financial and emotional toll exacted on the Lindsey Defendants and stated clearly throughout his Order that "dismissing an indictment is a disfavored remedy."
While the case is certainly a defeat for the Government and the second this year, companies and individuals can take limited comfort from the Lindsey Case. As Charles E. DuRoss, the DOJ's Deputy Chief of the Fraud Section, stated in November of this year, the DOJ "will continue to follow evidence and bring [FCPA] charges when we think appropriate." Although this statement, similar to others made in recent years by DOJ officials, was made prior to the Lindsey dismissal, there is little reason to believe we will see substantial Government retrenchment from its aggressive posture on the FCPA.
We can expect more FCPA cases to go to trial, and therefore more wins for both defendants and the prosecution. The Lindsey case demonstrates that defendants can and should strenuously challenge the Government when appropriate to do so. However, defendants have yet to achieve a trial ruling, much less a verdict, that significantly curbs the Government's broad reading and application of the FCPA in the last decade. Companies and individuals should continue to implement risk-based compliance programs designed to reasonably prevent or detect corruption issues in the first instance, rather than finding themselves in the position of challenging the Government at trial.
This article was prepared by Marsha Z. Gerber (firstname.lastname@example.org or 713 651 5296), Richard C. Smith (email@example.com or 202 662 4795), Guy Singer(firstname.lastname@example.org or 212 318 3353) and Paul Simon (email@example.com or 202 662 4632) from Fulbright's White Collar Crime Practice Group, Fulbright's FCPA and International Anti-Corruption Practice Group and Fulbright's Investigations Practice Group.
Fulbright's White Collar Crime, FCPA and International Anti-Corruption and Investigations Practice Groups
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 U.S. vs. Noriega, et al, U.S. District Court, Central District of California, Western Division of Los Angeles, Case #:2:10- cr- 10131-AHM-4(the "LindseyCase").
 See Marsha Z. Gerber, Richard Craig Smith, and Paul Simon, "Federal Jury Convicts FCPA Defendants, Including First Corporate FCPA Defendant To Be Convicted,"Fulbright Alert, May 11, 2011, available at http://www.fulbright.com/index.cfm?fuseaction=publications.detail&pub_id=4871&site_id=494&detail=yes.
 Lindsey Case, Order Granting Motion to Dismiss("Order"), at 5.
 Aguilar and his wife Angela Aguilar were also indicted as co-defendants in the case. Aguilar has not been arrested. Angela Aguilar was arrested and defended against a count of conspiracy to commit money laundering at trial. She was convicted, entered into a "time served" settlement with the prosecution, and has returned to Mexico.
 Order, at 1-2.
 Order, at 2, 28.
 Order, at 5.
 Order, at 36.
 A company also allegedly controlled by Aguilar by the name of Sorvill was the purported conduit for bribes in another FCPA investigation by the Department of Justice ("DOJ") in which one of the Lindsey case prosecutors was involved. Judge Matz noted that "the prosecutors pushed aggressively to link Sorvill to the Lindsey Defendants, when in fact there was no evidence even suggesting the Lindsey Defendants ever heard of Sorvill." Order, at 3.
 At the hearing, the AUSA responsible for insertion of the false statements said there had been a misunderstanding and that when he asked the agent to identify any errors in his changes the agent had not identified the statements the Court found to be false. Order, at 9.
 The prosecution's attempt at the post-verdict dismissal stage to rely on the Court's earlier Franks motion denial was rebuked by Judge Matz, who held that, "The issue at this point is … not whether there was sufficient, non-tainted cause to obtain a warrant, but whether the Government's submission to a … judge of an affidavit containing a material falsehood was part of an overall course of conduct that requires the sanction of dismissal." Order, at 9.
 Order, at 10.
 Order, at 11-12.
 Id., at 11.
 Id., at 11
 Id., at 12, citing the transcript of the grand jury testimony from October 21, 2010 at page 22.
 Id., at 12.
 Order, at 12.
 These omissions, described by the Lindsey Defendants as "an effort to conceal important and exculpatory information," included: (a) that Hurricane Wilma hit Mexico in July 2006, causing CFE to immediately obtain emergency restoration systems, and the first significant post-Aguilar contract between LMC and CFE was signed shortly thereafter; (b) that the IRS audit found no irregularities in LMC's payments to Grupo and no taxes owing; and (c) that a source other than LMC had deposited $433,000 into Grupo's account. Order, at 13 n.12.
 Order, at 13-14
 Order, at 15.
 Order, at 16 citing the Court's Docket 642, p. 47.
 Judge Matz found that the prosecutors' actions directly affecting only Angela Aguilar were nevertheless relevant to the dismissal motion (a) because the "broad legal principle" underlying all grounds for dismissal based on misconduct is that "the prosecution has the duty to comply with its legal obligations in every case"; and (b) because the Lindsey Defendants were accused of conspiring with Aguilar, and both Aguilars were accused of conspiring with each other. Order, at 18.
 Id., at 21.
 Id., at 22.
 Id., at 22.
 Id., at 23.
 Order, at 29, citing U.S. v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993).
 Order, at 37.
 Order, at 38, citing U.S. v. Rogers, 751 F.2d 1074, 1076-77 (9th Cir. 1985).
 Earlier this year, a mistrial was declared in the prosecution of the first four "Shot Show" defendants. See Transcript of Trial Record, U.S. v. Patel et. al, No. 09-cr-00335 (D.D.C. Jul. 7, 2011).
 American Conference Institute, 26th National Conference on the Foreign Corrupt Practices Act, Nov. 8, 2011.
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