• Uncategorized

Lindsey and the FCPA

I am sorry to burst everyone’s bubble but the Lindsey decision does not reflect any repudiation or cut back in FCPA enforcement.  To the contrary, Judge Matz’s decision was in response to “standard” prosecutorial misconduct violations.

Nothing in Judge Matz’s decision had anything to do with the Justice Department’s aggressive FCPA enforcement program.  

Putting all this aside, the Lindsey decision will have an impact on the professional status and careers of the prosecutors involved in the case, especially the prosecutor(s) responsible for the pre-indictment investigation.  There is no excuse for failing to turn over the grand jury testimony of the FBI case agents and for including false statements in the various affidavits supporting search warrants.  Repeated claims of mistakes, oversight and inadvertent errors have a hollow ring.

In addition, Congress is likely to hear about the Lindsey case and will examine, yet again, possible remedies for prosecutorial misconduct.  Hopefully, Congress will not consider opening up prosecutors to civil liability since prosecutors’  face enough risks and challenges in their careers.  More likely, Congress will consider amending Federal Rule of Criminal Procedure 16 which governs discovery.  The amendment of the rule is even more imperative given the conduct of prosecutors who seem to skirt the requirements and avoid Brady disclosure obligations.  More importantly, amendments are need to set in stone the government’s obligations to disclose Brady and Giglio evidence so that future claims of inadvertent mistakes or omissions can be measured against a clear requirement.

In cases where a prosecutor cannot determine if evidence meets the Brady standard, prosecutors should submit materials in camera for a judge to review.  

It is difficult to accept federal prosecutors’ claims of inadvertent failures to turn over Brady evidence.  It looks too much like gamesmanship.  Every prosecutor knows their disclosure obligations.  It is just not credible for a prosecutor to claim they did not know or overlooked such evidence.  Whether true or not, such claims reflect sloppy incompetence or worse, deleiberate obfuscation.  Almost all federal prosecutors are highly ethical and committed to justice.  Unfortunately, a few bad apples, questionable conduct in high profile cases, and an apparent insensitivity to the disclosure issue, have undermined the Justice Department’s claims that it is committed to compliance with basic principles of fairness.

You may also like...

3 Responses

  1. Jon May says:

    Assuming these are isolated events (and as a former AUSA I do), it is too much to expect prosecutors to determine what constitutes favorable evidence. A lawyer’s perspective is just too clouded by his or her’s commitment to the cause. And it is impossible to know what evidence fits into his or her adversary’s defense. Moreover, prosecutors don’t understand what Brady/Kyle requires and think that it only applies to”exculpatory” evidence. If such evidence existed presumably the government would not have charged the defendant in the first place.
    I completely agree; the only solution if Rule 16 reform. Long overdue. Not holding my breath. Already turning blue.

  1. December 7, 2011

    […] in FCPA violators. Mike Volkov doesn’t think the Lindsey case heralds new wisdom on the FCPA, but it will change the career trajectory […]

  2. January 29, 2012

    […] doesn’t agree with and investing in FCPA violators. Mike Volkov doesn’t think the Lindsey case heralds new wisdom on the FCPA, but it will change the career trajectory of the prosecutors […]