On Monday, January 9, 2012, Judge Richard Leon, who had already dismissed the central conspiracy count against six defendants in the FCPA Sting Case, was faced with an interesting question: if the conspiracy count was dismissed for insufficient evidence, should the trial continue when much of the evidence the Government has offered was based on the acts and statements of coconspirators who were not present at the trial? The Motion for a Mistrial filed by the defendants presently at trial argued that they were prejudiced by the evidence regarding the now-dismissed conspiracy count. Judge Leon denied the Motion, ruling that the trial will continue.
Under the rules of evidence, hearsay statements are excluded – what a witness who is not at trial said outside the courtroom is not admissible. However, the rules also provide that "a statement by a coconspirator of a party during the course of the conspiracy and in furtherance of the conspiracy," is not hearsay, and is therefore admissible. In the FCPA Sting Case, the 22 defendants have been charged in a single conspiracy, but were being tried in four separate groups. As in all conspiracy cases, the Government offered evidence regarding the acts and statements of individual conspirators against all conspirators.
As discussed here, on December 22, 2011, Judge Richard Leon granted the Rule 29 Motions for Judgment of Acquittal in the FCPA Sting Case and dismissed Count 1 (on the grounds that there was not sufficient evidence to that the six defendants in Trial Group No. 2 participated in the overarching conspiracy to violate the FCPA. At the same time, Judge Leon dismissed the Government’s case against one of the six defendants in its entirety.
On January 2, 2012, the remaining five defendants moved for a mistrial, arguing, among other things, that they were prejudiced because they were improperly joined in the discovery count and the "admission in the government’s case-in-chief of hearsay statements of alleged co-conspirators and other testimony and exhibits that would not have been admissible at individual trials." The defendants argued that they were further prejudiced by the prosecutor’s opening statement, which charged the defendants with "collective wrongdoing" together with sixteen other defendants not on trial, including some whom have pled guilty. The defendants also argued that the prejudice "is so great that it cannot be cured by striking testimony and exhibits, or through curative instructions to the jury." As an alternative, the defendants argued that the Court was required to strike the testimony and other evidence regarding statements and acts of coconspirators and instruct the jury not to consider those issues.
The Government responded on January 4, 2012, arguing that "a mistrial is a severe remedy that is neither required nor warranted under the circumstances, especially given the less drastic alternatives available, such as an appropriate jury instruction." The Government also argued that "the defendants cannot show prejudice warranting severance, especially given that the Court can cure the risk of any such prejudice by a appropriate jury instruction." The Government asserted that under the relevant case law, it was not required to "charge the defendant with conspiracy in order to admit hearsay statements into evidence under the co-conspirator exception," and offered a variety of legal theories under which the statements of co-conspirators were admissible. The Government concluded that the Court, "should properly instruct the jury to consider the evidence against each defendant individually," as it did in the first of the trials in this matter (which resulted in a hung jury, as discussed here). On January 8, 2012, the Government submitted proposed supplemental jury instructions, including ones to address "Liability On The Grounds Of An Uncharged Conspiracy" and "Statements and Acts of Co-Defendants in a Common Venture."
On January 9, 2012, Judge Leon, without an Opinion, denied the Motion for a Mistrial. It remains to be seen how he will instruct the jury on these issues, as the defendants were to continue with their case-in-chief today.