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Judge To DOJ: Your Principal Witness Knows Almost Nothing

Here’s what Judge Lynn Hughes, left, said when he ruled in favor of John O’Shea’s motion to dismiss the substantive FCPA counts against him.

Charles Duross was there for the DOJ and Joel Androphy for O’Shea.

It happened on January 17 in the U.S. District Court in Houston.

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THE COURT: John O’Shea’s Motion for Judgment of Acquittal will be granted.

The problem here is that the principal witness against Mr. O’Shea is [Fernando] Basurto, Jr., who knows almost nothing.

His answers were abstract and vague, generally relating gossip. And as I indicated, even hearsay testimony must be something other than a conclusion.

While the Government does not have to trace a particular dollar to a particular pocket of a particular official, it has to connect the payment to a particular official, that the funds made under his authority to a foreign official, who can be identified in some reasonable way, that is, with no reasonable doubt. . . .

We have considerable non-production on the part of the Government records and people. . . .

The immunity to Basurto, Sr. means he doesn’t have to do anything and he can still take the Fifth on the grounds that he could be incriminating himself in explaining these payments because they were, in fact, transactions unrelated to the commission [sic] Nestor Moreno and ABB. He didn’t, as part of his earning his immunity, produce his financial records. What we have is some records that Jr. produced, which are modest in their extent and inconclusive in their reach.

We don’t know what the going rate for a country representative is. We know it varies and we know it varied even for the Basurtos. But what we do know is the Basurtos had other customers. They were collecting money from Microsoft and IBM and doing something with it. I am not suggesting that either of those companies was doing anything wrong, authorized the Basurtos to do something wrong for them. It’s a fact that the Basurtos had a business. And being the country representative for a foreign company is sort of like being a public relations officer. Responsibilities are ill defined sometimes, but the Government has not produced evidence from which one could conclude beyond a reasonable doubt that their only business was paying bribes or the business they did for ABB was only paying bribes.

The money that is disbursed is sometimes tied as closely as three steps can be to Moreno. In two instances, the hair plugs and the tuition. But there are just disbursements to the Basurtos that disappear into the Basurto family. For instance, in Count 6, the account, $67,500 is paid on a collection of $30,000.That makes neither one of them explanatory. . . .

Most of all, we don’t have all of the Basurtos’ records and the Basurtos are both cooperating.

We don’t have their financial records. We don’t have their cell phone records, we don’t have all their other account records. I didn’t count the number of bank accounts here, but there are five or six of them, and those are just Bank of America accounts and Wells Fargo Accounts. There are lots of other banks. And with Sorvill, there is $268,000 going into Sorvill and $29,000 coming out. That makes, as the Government says, the nature of that account undetermined rather than suspect.

Basurto and O’Shea, I hesitate to say used a code, talked deliberately obscurely instead of deliberately clearly, that’s not evidence of committing a crime. People encrypt stuff all the time, every day.

They did before we got to the Internet. There is an equally logical explanation for the post-termination e-mails, and that is helping the Basurtos keep their contract.

Does the defendant want me to bring the jury in and instruct them or just go tell them?

MR. ANDROPHY: You can tell them. That would be fine, Your Honor.

THE COURT: Government?

MR. DUROSS: That would be fine, Your Honor. The Government would like an opportunity, if the Court would permit us to speak with the members of the jury.

THE COURT: I will, if they want to. I’m going to go talk to them for a minute and I’ll tell them that you are in here. Do you want to talk to them?

MR. ANDROPHY: Yes, Your Honor.

THE COURT: Mr. Androphy, be nice to them.

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