Last week I was in Washington DC and had the opportunity
to visit the Federal District Courthouse, where the first of the Gun Sting
defendants currently in trial. Chris Matthews is reporting daily for MainJustice
and although I think Chris is a great reporter, unfortunately I do not have a
subscription to MainJustice so I cannot read what he has been writing about
this trial. So the following are my observations are from sitting in the trial
for a short time.
I am not going to reveal the name of the defendant which
they were discussing at the time I sat in court but one of the federal
Prosecutor's was direct examining an FBI agent, who was an undercover operative
in the sting operation, on some recorded conversation where he was present. The
Prosecutor was proving up the transcripts of wiretaps and video recordings of
the defendant in question. The direct examination was straight forward with the
Prosecutor reading the transcript, then asking the FBI agent if he was present
and if the FBI agent heard the defendant state the lines of transcript
submitted and, if so, then requesting admission and publication to the jury.
Riveting stuff or perhaps not.
My first observation is really that from my wife, who sat
in with me. She is English and had never seen a US criminal trial live and in
person. So her first reaction was something along the lines of "Is this it?"
followed by "How does the jury stay awake?" It was immediately before lunch
so that may have been one reason the jury was awake.
Needless to say I found it riveting. But I found it
riveting for the same reason that my wife found it somewhat tedious. My
explanation to her was that it was a slow, methodical presentation of the
evidence. The Prosecution puts building block up after building block, in an
inexorable march towards an impenetrable case based upon the admitted evidence.
The simple act of reading line after line of conversations where the defendant
either heard about requests to pay a bribe or actually agreed (or seemed to
agree - not to supplant my opinion for the jury's role as the trier of fact) to
pay monies for a bribe. This seemed to me to be one of the trial tactics of the
Federal Prosecutors Galleon insider trading case; that is, to build such a
powerful case based upon the defendant's own words, gesture or agreements that
it simply cannot be explained away.
I understand that this was the prosecution's case and it
was direct testimony. The defense counsel is already going after the undercover
FBI agent on cross-examination this week. Additionally the defendant has raised
the defense of entrapment and other substantive and jurisdictional defenses.
But the slow plodding forward by the prosecution of the defendant's own words
and actions may well have a powerful effect on the jury. My colleague Howard
Sklar often says that if you have to raise jurisdictional defenses or claim
that you were entrapped, you are already in a place you do not want to be in.
He may well be right in this assertion.
Another strong impression that I had while watching this
slow, steady march of evidence was how much of a game changer the Gun Sting
case is for the Foreign Corrupt Practices Act (FCPA) world. Watching this
direct examination was the direct result of using organized crime fighting
techniques in a very mundane white collar case. My civil side clients need to
be very aware of what is happening around them, both from any solicitations for
bribes by any customers and any comments by competitors regarding such actions.
While in the past such comments may have been laughed off, any competitor which
makes any such comments must be taken very seriously and immediately denied and
refuted by your sales team. Your company can simply not afford, literally or
figuratively, to be caught up in any similar circumstances.
Visit the FCPA Compliance and Ethics Blog,
hosted by Thomas Fox, for more commentary on FCPA compliance, indemnities and
other forms of risk management for a worldwide energy practice, tax issues
faced by multi-national US companies, insurance coverage issues and protection
of trade secrets.
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© Thomas R. Fox, 2011
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