A thoughtful comment came in from a reader about our post In Lindsey Trial, FBI’s handling of grand jury questioned.
The reader said:
Putting aside arguments that CFE may not be the type of entity the FCPA was designed to cover, it would be helpful for the FCPA Blog to provide commentary on the relevance of the points raised during cross-examination. For example, the relevance and importance of (i) the Mexican government entity being a “victim,” (ii) the existence of any competition for the government contract in question, (iii) a purported competitor actually competing for the work, and (iv) where all the money in a recipient’s bank account came from if it is otherwise firmly established that money was paid to the “foreign official.”
April 27, 2011 | Chas Wilkinson ([email protected])
And our response:
Thanks for your comment.
We wouldn’t presume to speak for defense counsel in the Lindsey case.
But the relevance of the points raised in our post goes mainly to the credibility of the government’s witness, in this case the FBI’s co-case agent for the investigation. Also, the matters raised in our post go to the conduct of the government before the grand juries that indicted the defendants. It is possible that if the grand juries were not provided accurate or complete information on which to base indictment decisions, the trial judge might decide to dismiss some or all of the charges against the defendants or direct an acquittal.
Even if the judge doesn’t dismiss the indictments, defense counsel may use the government’s behavior at the grand jury proceedings to argue against the credibility of the government’s witnesses in the trial. We’ll see what happens in the courtroom and what the defense lawyers and the judge do with the information coming out on cross examination of the government’s witnesses.
So, for example, the victimhood of CFE isn’t itself that relevant in the Lindsey case. But the fact that the investigators / prosecutors didn’t talk to CFE until after the indictment perhaps indicates a narrow or shallow investigation that may have gaps in it.
Nestor Moreno’s promotion, apparently putting him out of the relevant chain of command at CFE, appears contrary to the government’s theory of the case, which is based on his receiving bribes and influencing contract awards during the relevant period.
The fact that there may have been no competitor to Lindsey for the CFE awards also conflicts with the government’s theory of the case. If there was no competitor, why would Lindsey need to pay bribes?
And the FBI agent’s apparent statement to the grand jury that most of the funds in Grupo’s account came from Lindsey when very little did, could be both misleading and potentially prejudicial, going both to the credibility of the government’s witness and the propriety and fairness of the grand jury proceeding.
Thanks again for the comment.