In the FCPA Sting Case, U.S. v. Goncalves, No. 09-cr-00335 (D.D.C.), which resulted in a mistrial last month for four of the 22 defendants (as discussed here), the Court has set a new schedule for the defendants, with four separate trials scheduled to begin between September 22, 2011 now and mid-May 2012. In the mean time, the Government defended its Indictment against a post-trial Rule 29 motion filed by the four defendants originally tried, arguing that the Court has already rejected the defense arguments and that the evidence at trial proved the existence of a conspiracy.
The case, which was brought against 22 defendants (three of whom have pled guilty), has been closely followed because it was based on a sting operation, and appears to be the first of its kind involving FCPA charges to go to trial. As Professor Mike Koehler of the FCPA Professor Blog pointed out in his post this morning, there have been at least two other matters where the Government used sting tactics in FCPA cases (both of which resulted in guilty pleas).
As reported here, on July 21, 2011, the four defendants who had been tried (Pankesh Patel, John Benson Wier, Andrew Bigelow and Lee Allen Tolleson) filed a renewed Rule 29 motion for judgment of acquittal, arguing that the Government’s theory that all 22 defendants acted as part of a single interdependent conspiracy was "unprecedented, unsustainable and unsupported." The defendants argued that the defendants were actually in competition and odds with each other, which did not support the Government’s argument that a single conspiracy existed, especially one with a Government agent or informant at the "hub." In addition, the Defendants argued that in light of the jury’s inability to reach a verdict, the Court should dismiss the conspiracy charge.
On Monday, August 8, 2011, the Government filed its opposition to the Rule 29 Motion, asserting that "[t]he renewed motions do not raise any new arguments or provide any articulable basis to reverse the Court’s trial findings. Nor do the renewed motions support the argument, counter to the Court’s earlier and correct decision in submitting the case to the jury, that there is no evidence upon which a reasonable juror might fairly conclude guilt beyond a reasonable doubt for the challenged counts."
Last Thursday, August 4, 2011, the Court set a new schedule for the four groups of defendants (each trial expected to last eight weeks):
• six defendants (known as Trial Group No. 2) are scheduled for trial beginning on September 22, 2011;
• the next group, consisting of five defendants, is scheduled to be tried on December 12, 2011;
• the four defendants from the original case which resulted in the July mistrial will be retried on February 28, 2012; and
• the remaining four defendants are scheduled to be tried on May 12, 2012.
As mentioned previously (here), Judge Leon warned the prosecutors that he will not accept scheduling conflicts as a reason to delay the cases, which are already twenty months old.
Finally, James McGrath of the Internal Investigations Blog recently provided a link to a fascinating article from last month by Christopher Matthews regarding Judge Leon’s decision to announce at the time of the mistrial how the jurors voted on each count and allowed counsel for each side to interview the jurors in the courtroom that day. Mr. Matthews’ coverage is a provides a rare insight into the thoughts of the jurors following a trial, especially since the defendants will be tried again on the same charges in six months.
