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In an attempt to salvage a criminal investigation devoid of sufficient evidence, federal prosecutors resorted to misconduct to win a high-profile Foreign Corrupt Practices Act case, defense lawyers argued in a court document. The document, filed on July 25, supplemented a motion to dismiss based on prosecutorial misconduct that lawyers for Lindsey Manufacturing Co. and two of its executives filed one day before a jury verdict went against their clients. The case is one of the few verdicts the government has won under the Foreign Corrupt Practices Act, which prohibits individuals and businesses from bribing foreign officials to secure work. Those convictions hang in the balance after prosecutors acknowledged on June 27 that they failed to turn over the entire grand jury testimony of an FBI special agent. U.S. District Judge Howard Matz in Los Angeles, who called the recent disclosure “astonishing” and “troublesome,” ordered both sides to file supplemental briefs addressing whether the indictment should be dismissed due to prosecutorial misconduct that violated the defendants’ due process rights. “In short, the prosecutors’ misconduct throughout the course of this case demonstrates, at the very least, a reckless disregard for their constitutional obligations and this Court’s findings, and was therefore flagrant,” the defense lawyers wrote in their brief. They listed a host of additional examples of alleged misconduct, concluding that “the government prosecutors in this case lost their way, forgetting their unique duty to do justice. Instead, they adopted a ‘win at all costs’ strategy. The misconduct attendant to that strategy permeates this case from beginning to end. It cannot be condoned, and it is time for this Court to say ‘enough.’ “ Assistant U.S. Attorney Douglas Miller of Los Angeles and Nicola Mrazek, a trial attorney in the fraud section of the U.S. Department of Justice in Washington, the lead prosecutors in the case, did not respond to a request for comment. The government’s supplemental response brief is due on Aug. 8. Lindsey Manufacturing and the two executives, Chief Executive Officer Keith Lindsey and Chief Financial Officer Steve Lee, were convicted of paying bribes, including a $300,000 red Ferrari, to two officials from a state-owned electric utility in Mexico. The jury found each man guilty of five FCPA counts and one count of conspiracy to violate the FCPA. They each face 30 years in prison. Their sentencing hearing originally was scheduled for Sept. 16, but Matz bumped that deadline after the misconduct claims surfaced. In their original motion to dismiss, Jan Handzlik, a shareholder in the Los Angeles office of Greenberg Traurig who represents Lindsey Manufacturing and Lindsey, and Janet Levine, a partner in the Los Angeles office of Crowell & Moring who represents Lee, maintained that FBI Special Agent Susan Guernsey lied during her testimony before the grand jury on Oct. 14, 2010. During a June 27 hearing, Handzlik said he was preparing to argue his motion when he discovered that some of Guernsey’s testimony on that day was missing from a transcript provided by the government. Miller acknowledged the missing testimony but said it was something he had overlooked, not “flagrant misconduct.” “I regret more so in my career that it took place,” he said. Mrazek told Matz that the government’s original plan was not to call Guernsey as a witness during trial. She said she hadn’t remembered that Guernsey had testified before the grand jury on that day. Matz called the government’s handling of the case “extraordinarily sloppy” with a “bad odor at times,” citing the search of two buildings without warrants and the government’s unauthorized acquisition of e-mails of a defendant who was in jail. Earlier, on March 29, Matz suppressed statements that Lindsey made during an FBI raid of his office because he hadn’t been warned of his Miranda rights. In their recent brief, defense attorneys noted these instances, as well as others: that prosecutors provided false statements in preparation for a search warrant affidavit, belatedly produced discovery documents, “played games” with the witness list and used an unqualified FBI agent as a summary witness to conceal holes in its investigation. “The investigation and prosecution of this case were permeated with instances of purposeful, prejudicial government misconduct,” they wrote. “The government’s misconduct was patent and pervasive, designed to win the case, not do justice.” A hearing on the supplemental briefing on the prosecutorial misconduct claims is scheduled for Sept. 8. Amanda Bronstad can be contacted at [email protected] .  

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