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No Gov’t Misconduct Against Aguilar, Judge Rules

The judge presiding over the FCPA-related trial of four defendants in federal court in Los Angeles denied a motion to dismiss the case against a Mexican woman who said there was no evidence to charge her in the first place.

Angela Aguilar, 55, had alleged misconduct by prosecutors for causing a grand jury to indict her without sufficient evidence.

But in a ruling on Thursday, Judge A. Howard Matz said the government’s charging decisions need not be based on proof beyond a reasonable doubt at the time of indictment but only probable cause. Citing United States v. Sells Engineering, Inc., 463 U.S. 418, 421 (1983), he said:

Lack of proof beyond a reasonable doubt does not make the act of seeking an indictment an act of vengeance, retaliation, overreaching, or misconduct. Given the materials before the Court, a jury, consistent with their duties and requirements and the standard of proof, could find the defendant Angela Aguilar guilty. There is no basis to find that the government has engaged in any misconduct.

The judge said Aguilar can raise any claim of insufficiency of the evidence at trial through a motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29.

Aguilar is a co-defendant with Lindsey Manufaturing, its CEO Dr. Keith Lindsey, and CFO Steve K. Lee. Their trial started two weeks ago.

The government alleges that Aguilar and her husband helped arrange millions in bribes from Lindsey Manufacturing to an official at the Mexican state-owned electric utility Comisión Federal de Electridad, called CFE. The bribes were allegedly paid in exchange for contracts from CFE.

The DOJ first charged Aguilar with FCPA offenses, later replaced by conspiracy and money laundering counts. Since her arrest in Houston in August and transfer to California, she’s been held without bail at the Metropolitan Detention Center in Los Angeles.

Aguilar’s husband, Enrique Faustino Aguilar Noriega, 56, has also been indicted but is still at large.

Lindsey Manufacturing, Keith Lindsey, and Steve Lee were charged in an eight-count superseding indictment with conspiracy to violate the Foreign Corrupt Practices Act and FCPA violations.

Before the trial started, the Lindsey defendants mounted the strongest challenge yet to the DOJ’s so-called expansive view of who’s a “foreign official” under the FCPA. But Judge Matz upheld the Justice Department. He found that Mexico’s CFE is an “instrumentality” of the government. Therefore, he said, the CFE officer who allegedly received bribes was a “foreign official” under the FCPA.

Defendants in two other FCPA prosecutions are also challenging the government’s view of “foreign officials” — in U.S. v. Carson et al in the Central District of California, and in a trial pending in Houston, U.S. v. O’Shea.

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The case is U.S. v. Noriega et al, U.S. District Court, Central District of California (Western Division – Los Angeles), Case #: 2:10-cr-01031-AHM-4.

Angela Aguilar is represented by Stephen G. Larson of Garardi Keese. Jan L. Handzlik of Greenberg Traurig is defending Lindsey Manufacturing and Dr. Keith Lindsey. Steve K. Lee is represented by Janet Levine of Crowell & Moring.

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