The DOJ’s once invincible FCPA unit isn’t just losing high profile prosecutions. It’s getting clobbered. And a common theme in the setbacks is a lack of professionalism and preparation.
Del Quentin Wilber of the Washington Post said earlier this month that FBI agents and Richard Bistrong, the chief witness for the prosecution in the Africa sting case, ‘joked about sex, booty calls, prostitutes, cigars, the Village People, the informant’s wives and an agent’s girlfriend. They even pondered who might play their roles in a movie based on their sting.’
Text messages between FBI agents and Bistrong became evidence in the trials and ‘shocked former prosecutors, who said the texts hurt the agents’ credibility,’ the Washington Post said.
On Tuesday, the DOJ dropped the Africa sting prosecution — the biggest mass indictment of individuals in the FCPA’s thirty-five year history. Two separate trials resulted in three acquittals and hung juries on all counts as to seven other defendants.
When he dismissed the case, Judge Richard Leon said it was the ‘end of a long and sad chapter in the annals of white collar prosecutions.’
Steven Levin, a former federal prosecutor in Maryland, told the Washington Post the behavior of the FBI in the text messages was ‘just foolish.’
‘Jurors,’ Levin said, ‘are loath to convict if they feel that both the informant and the law enforcement officers have acted improperly.’
The Washington Post’s Wilber said:
Defense lawyers used the questionable messages to savage the credibility and professionalism of FBI agents, who not only seemed to share their informant’s offensive sense of humor but also appeared to like him.
The professionalism of FBI agents and their bosses at the DOJ has been questioned in other FCPA cases that ended badly for the government.
In December last year, a federal judge in Los Angeles dismissed indictments against Keith Lindsey and Steve K. Lee, and their company Lindsey Manufacturing. After the jury convicted the three defendants on all counts, Judge Howard Matz threw out the verdicts because of the prosecutors’ misconduct.
Judge Matz said:
[I]t is with deep regret that this Court is compelled to find that the Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s rulings, engaged in questionable behavior during closing argument and even made misrepresentations to the Court.
And last month, Judge Lynn Hughes ordered the acquittal of John O’Shea, a former ABB manager in Texas, on all substantive FCPA counts he faced. Judge Hughes wouldn’t send the case to the jury, he said, because the government’s primary witness ‘knew almost nothing.’ The judge also criticized the government for not producing witnesses and documents the defense asked for.