Federal prosecutors want to keep alive a high-profile foreign bribery case that suffered a recent setback when a judge acquitted one businessman and dismissed the conspiracy charge against five others charged in the alleged scheme.
U.S. District Judge Richard Leon heard argument Friday from defense lawyers about why the Foreign Corrupt Practices Act case in Washington's federal trial court should not be allowed to go forward.
At issue is whether the defendants—executives and employees in the military and law enforcement equipment industry—were properly grouped together for trial. In all, prosecutors charged 22 people in the scheme that involved the $15 million sale of defense items to the west African nation of Gabon. The sale was a set-up; law enforcement officials had crafted an undercover sting.
Last month, Leon dismissed the conspiracy count against the six defendants who are now on trial and acquitted one man, Stephen Giordanella. The defense attorneys for the remaining defendants then urged Leon to declare a mistrial.
The attorneys, including Reed Smith’s Eric Dubelier, Michael Madigan of Orrick, Herrington & Sutcliffe, Charles Leeper of Drinker Biddle & Reath and Buckley Sandler’s David Krakoff, contend that prosecutors joined the defendants “through a conspiracy charge that the government knew it could never prove.”
The lawyers said the conspiracy charge allowed prosecutors to present to jurors the statements from alleged co-conspirators that otherwise would not have been allowed in trials against individual defendants.
“Because the prosecutors featured the conspiracy charge in opening statement and throughout their three month long presentation of the evidence, the jury has been indoctrinated with the government’s theory of collective wrongdoing,” the defense attorneys said in a brief. “It does not appear possible to unring the ‘conspiracy bell.’”
In dismissing the conspiracy count, Leon said “it is no surprise that the various defendants viewed themselves as competing against one another to sell as much as possible of their goods within the maximum of the $15 million budgeted.”
The government’s legal team, including Assistant U.S. Attorney Matthew Graves and Justice attorneys Laura Perkins and Glenn Leon, have asked Judge Leon not to grant the mistrial request. The prosecutors said Leon has any number of other less drastic options available to him, including a special instruction for jurors.
Prosecutors disputed the suggestion that the government brought a conspiracy charge it knew it could not sustain. “That allegation is patently false and simply belied by the record,” prosecutors said.
The attorneys said Leon should not strike statements from alleged co-conspirators “simply because a criminal conspiracy could not be proven beyond a reasonable doubt.” The defendants, prosecutors argue, were “involved in the furtherance of a common goal”—that is, the sale of supplies to Gabon.
“The government has argued in good faith—and, we believe, correctly—that the evidence introduced at trial was sufficient to support the conspiracy count,” prosecutors said in court papers.
Other defendants in the closely watched case are scheduled for trial in the coming months.