Federal Securities Law Blog

A story from the Blog of the Legal Times states that prosecutors "are considering whether to abandon" the charges in the FCPA Sting Case in federal court in Washington, DC. Mike Scarcella's blog entry (available here) states that prosecutor Joey Lipton reported to Judge Richard Leon at a February 7, 2012 status conference that "Assistant Attorney General Lanny Breuer and U.S. Attorney Ronald Machen Jr. are examining the continued viability of the case," and a decision on whether the cases will continue will be made by February 21, 2012.

The Government charged 22 defendants with conspiring to violate the FCPA, violating the FCPA and conspiring to launder money, based on dealings with an informant and an undercover FBI agent posing as the Minister of Defense of Gabon. Three defendants have pled guilty. The first trial (against four defendants) resulted in a hung jury and a mistrial on July 7, 2011. In the second trial (against six defendants), Judge Leon dismissed Count 1 (conspiracy to violate the FCPA) and dismissed the Government's case in its entirety against one defendant on December 22, 2012. On January 30, 2012, Judge Leon accepted a partial verdict, acquitting two of the defendants. On January 31, 2012, the Judge declared a mistrial as to the remaining three defendants when the jury was unable to break its deadlock.

The article states that at the February 7, 2012 Status Conference, Mr. Lipton asked Judge Leon "to hit the 'pause button' on the prosecution." Judge Leon, who previously indicated that he would keep the Government to a tight trial schedule, gave prosecutors a slight reprieve by moving the next trial (which was scheduled for February 28, 2012) to March 13, 2012, but instructed the parties to continue moving forward and responding to pending motions.

Other than the results in the first two trials, one factor that may play a role in the Government's reconsideration is that two of pending motions ask the Court to dismiss the FCPA conspiracy count consistent with the Court’s December 22, 2011 decision to dismiss Count 1 against the defendants in the second trial (also discussed here). Another factor which the prosecution must consider is the recent comments from the jury foreman in the second trial that the jury found nearly all of the prosecution witnesses to be evasive and combative.