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A federal judge has suppressed statements by a key defendant in a Foreign Corrupt Practices Act prosecution who wasn’t warned of his Miranda rights during an FBI raid, but denied motions to dismiss the charges on ground of prosecutorial misconduct. The rulings came on March 29 in a closely watched case in which, the judge said, “the government has been the recipient of tons of motions, maybe a gang rape so to speak.” U.S. District Judge Howard Matz in Los Angeles later recanted his “gang rape” remark, apologizing to the prominent defense lawyers including former U.S. District Judge Stephen Larson, now at Los Angeles-based Girardi & Keese. He clarified that he believed the government had been “overwhelmed,” given the numerous “flaws and omissions” he found in its court papers. “I shouldn’t have used that comment,” he said. “There’s no basis to find it is a ganging-up factor.” Opening statements are scheduled for April 5. The government has charged the Lindsey Manufacturing Co., which makes emergency power transmission systems; its president, Keith Lindsey; and Lindsey’s vice president and chief financial officer, Steve Lee, with conspiracy to violate the FCPA by paying a sales representative in Mexico to bribe officials of the Comisión Federal de Electricidad, a state-owned utility company. It also charged the sales representative, Enrique Noriega, and Noriega’s wife, Angela Aguilar. Defense attorneys challenged the government’s conduct during the raid of Lindsey’s offices in Azusa, Calif., and complained the search warrant affidavit makes numerous misstatements — for example, about financial records showing that Lindsey funds were used to buy a yacht and a Ferrari for one of the Mexican officials. Matz ruled against the government on what he called “one of the key motions at the outset.” He said that Keith Lindsey was not given a Miranda warning when FBI agents raided his corporate office on Nov. 20, 2008. Lindsey’s lawyer, Jan Handzlik, a shareholder in the Los Angeles office of Greenberg Traurig, argued that agents ignored Lindsey when he asked whether he should have an attorney present. There was a “purposeful and investigative-premised decision to not respond to his clear efforts to get assistance from a lawyer,” Matz said following lengthy testimony that began on March 28. “Just human nature tells you the context was that this witness was not allowed to confer with other people, including his frantic wife.” Matz denied a similar motion to suppress statements made by Lee and two motions by Aguilar to dismiss the indictment based on prosecutorial misconduct. In one motion, Aguilar alleged that prosecutors illegally recorded telephone conversations she made and read e-mails she wrote while in jail in downtown Los Angeles. Matz agreed to suppress the e-mails, concluding that prosecutors failed to inform defense counsel that they planned to submit them as evidence. “There was no business in the government prosecutorial team getting this e-mail communication in the first place,” he said. But he refused to toss the recordings, ruling that she knew her conversations were not private. Her lawyer, Larson, argued that the conversations were of an “extraordinarily private nature” and weren’t provided to him in a timely fashion. Matz gave Larson the option to renew his motion if he could offer more details about when the government provided the recordings. In her second motion, Aguilar argued that prosecutors arrested her in Houston before the indictment for the sole purpose of gaining access to her husband, who was in Mexico. “What this is all about from Day One is getting her husband,” Larson told Matz. “She was not a target of the investigation at any point of time up until the time prosecutors realized that this was a way to get Mr. Aguilar.” Matz denied that motion, concluding that prosecutors could have had enough proof to bring charges against her. “They had something. I think it’s very thin. I think it remains very thin,” he said, adding that he would let a jury decide. Matz was expected to rule on additional motions, including another motions to dismiss. The criminal trial bar is closely watching that motion because it rests on an emerging defense in FCPA cases: That the “foreign official” who was bribed actually was a company executive, not a government official. That argument has been brought up in a separate case pending in Santa Ana, Calif., against an executive accused of bribing an official of a state-owned company in China. Matz put off a decision on that point, however, indicating that he would decide it at some future date. Contact Amanda Bronstad at [email protected].

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