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Despite Hung Jury, Sting Defendants Want Acquittal

The four Africa sting defendants who ended up in a mistrial are asking the judge to acquit them on the FCPA conspiracy count.

Andrew Bigelow, Pankesh Patel, John Benson Wier III, and Lee Allen Tolleson argued that the evidence against them was “insufficient to sustain a conviction as to the charged FCPA conspiracy.”

Their seven-week trial ended in July when the jury couldn’t reach a verdict. The DOJ has said it will retry them. They’re facing the FCPA conspiracy count and multiple substantive FCPA charges.

The judge has the power to order an acquittal even though the jury deadlocked. If he acquits them on the conspiracy count, they couldn’t be retried on it.

Fifteen other defendants in the case face the same charges. Their trials, according to the DOJ, will be staged after the retrial of the first four defendants.

Conspiracy is a lot easier for the government to prove than substantive FCPA offenses. If the judge ordered an acquittal on the conspiracy, the entire sting prosecution could fall apart.

(Last week, prosecutors didn’t oppose a defense motion to dismiss a money-laundering count.)

How easy is it to prove conspiracy?

The DOJ described the prosecutor’s burden this way:

To prove the existence of a conspiracy, the government must show that the defendants: (1) knowingly entered into an agreement, (2) with at least one other person, (3) to commit a specific offense, in this case to violate the FCPA, and (4) that the defendant, or any other conspirator, took one step in furtherance of the conspiracy. See United States v. Hemphill, 514 F.3d 1350, 1362 (D.C. Cir. 2008); United States v. Wynn, 61 F.3d 921, 928-29 (D.C. Cir. 1995).

That, as we’ve said before, is a low bar.

During the sting trial, the DOJ said, its evidence showed that the defendants agreed to participate in the phony Gabon deal. That showed they “shared a common understanding with the other participants of the essential nature of the deal: to corruptly obtain contracts to sell their products to Gabon,” the government said.

The defendants said there was no “hub” to the alleged conspiracy, and that they didn’t even know each other.

Co-conspirators, the government replied, don’t need to know or have any direct contact with each other. All the government has to prove, prosecutors said, is “that there was a common understanding, either spoken or unspoken, among those who were involved.”

A hearing date on the defendants’ motion for acquittal hasn’t been set.

Download the government’s response to defendants’ renewed motions for judgment  of acquittal here.

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