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A federal judge’s dismissal of convictions in a high-profile Foreign Corrupt Practices Act case because of prosecutorial misconduct has prompted a defense attorney in a related prosecution to challenge the government’s case against his client. U.S. District Judge Howard Matz in Los Angeles on Dec. 1 threw out the convictions of Lindsey Manufacturing Co. and two of its senior executives on charges that they paid an intermediary to bribe two officials of a Mexican utility in violation of the FCPA. Matz cited numerous instances of prosecutorial misconduct, including an FBI agent’s false statements to the grand jury and false information in affidavits submitted for search and seizure warrants. The lead prosecutor in that investigation, Nicola Mrazek, a senior trial attorney with the Department of Justice in Washington, is spearheading a related FCPA case in Texas headed to trial on Jan. 10. John Joseph O’Shea, a former general manager of a subsidiary of ABB Ltd. in Sugarland, Texas, stands accused of paying a separate intermediary run by the same person to bribe the same two Mexican utility officials identified in the Lindsey case. Joel Androphy, a partner at Houston’s Berg & Androphy who represents O’Shea, said he plans to keep his “ears open” as the trial approaches for government conduct that mimics the Lindsey case. He already has cited Matz’s ruling in a Dec. 6 motion to preclude prosecutors from introducing evidence at trial of a red Ferrari and a yacht–both of which were identified as bribes in the Lindsey case. “This opinion may not be short-term for us helpful, but may be helpful in the court as our trial progresses, because if the pattern of behavior parallels it, we’ll deal with it accordingly,” he said. “It’s one of those things we have to stay tuned [to]. Because we know, we’ve seen an example of what to expect, we’ve got a bird’s view, a preliminary review, of how they’ll try the case.” Department of Justice spokeswoman Laura Sweeney declined to comment. The government has indicated that it plans to appeal Matz’s ruling. O’Shea was indicted in 2009 on charges of paying a company called Sorvill International to bribe two officials of Comisión Federal de Electricidad, or CFE, which provides electricity to a large part of Mexico, to obtain millions of dollars in contracts. The principals of Sorvill were Enrique Aguilar and Fernando Maya Basurto. The conspiracy, according to the indictment, lasted from 1997 through 2005 and involved having CFE officials submit false invoices and kickbacks cloaked as commissions to Sorvill officials. O’Shea was charged with one count of conspiracy to violate the FCPA, 11 counts of violating the FCPA, four counts of international money-laundering and one count of falsifying records. The government seeks nearly $3 million in illegal proceeds from the alleged conspiracy. Matz’s ruling cited the O’Shea case numerous times, finding that prosecutors had attempted use the evidence in that case against the Lindsey defendants. The alleged link: Grupo International, another of Aguilar’s companies, was the alleged intermediary in the Lindsey case. “At all times the Government lacked any evidence that LMC [Lindsey Manufacturing Co.] had anything whatsoever to do with either ABB or Sorvill,” Matz wrote. “Nevertheless, the prosecutive team repeatedly attempted to show a link between what ABB allegedly did in bribing CFE through Sorvill and what LMC allegedly did in bribing CFE through Grupo.” For instance, the government attempted to establish a connection between Lindsey and Sorvill when an FBI special agent drafted an affidavit for a search warrant of Lindsey’s offices in 2008, Matz wrote. Then, in 2010, another FBI agent testified before a grand jury that Lindsey had some connection to Sorvill. During the Lindsey trial, prosecutors attempted to establish a link again when Basurto took the stand. Additionally, they presented evidence that one of the CFE officials had received bribes from Lindsey, through Grupo, in the form of tuition payments for his son. Those same tuition payments they attributed to bribes paid by ABB in the O’Shea case. Matz concluded that “the Government’s conduct also illustrates just how far the Government was willing to go to make some connection between LMC and Sorvill, regardless of how misleading was the link.” In his motion, Androphy cited Matz’s decision, arguing that the government shouldn’t bring up the Ferrari and yacht in his case because prosecutors told jurors in the Lindsey case that both were bribes paid by Grupo. “As he went through his opinion, he accused the government of unfairly combining multiple cases in one,” Androphy said. “And so we filed the motion in limine so our judge could see the judge’s findings in L.A. with regard to the inconsistent positions the government was trying to take that was basically unfair to both parties.” O’Shea has attempted to have the charges against him dismissed several times based on the statute of limitations and the definition of a “foreign official” under the FCPA. U.S. District Judge Lynn Hughes, hearing the case in Houston, rejected those motions. O’Shea also cited prosecutorial misconduct. In an April 25 motion, Androphy moved for sanctions and a dismissal of the indictment based on new information that CFE officials had just met with prosecutors in the Lindsey case in Los Angeles, despite the government’s insistence that it had “no control” over those employees. “It’s remarkable they were able to get them in a meeting in L.A. but not invite us or the Lindsey defendants to the meeting and claim later they can’t bring these people into the United States,” Androphy said. In response, prosecutors in the O’Shea case insisted that the meeting with CFE officials had no relevance to ABB. Hughes denied the motion on May 31. Then, on Oct. 31, Androphy moved to dismiss based on “flagrant prosecutorial misconduct” related to discovery in the case. Prosecutors called the accusations baseless and, on Nov. 1, Hughes denied the motion. Androphy said the Lindsey decision has implications beyond his case. “This wasn’t brought by the U.S. attorney’s office in L.A. and the U.S. Attorney’s office in Houston. It was brought by the Department of Justice,” he said. “It sends a strong message not only to us but to the entire defense community in terms of putting the government to the test in proving these cases.” Contact Amanda Bronstad at [email protected].

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