by Mike Koehler
When put to its burden of proof in the Africa Sting trials, the DOJ’s record currently stands at 0-10. As detailed in this prior article, in July 2011 Judge Richard Leon declared a mistrial in the first case involving defendants Andrew Bigelow, Pankesh Patel, John Weir and Lee Tolleson. Perhaps even more significant, at the close of the DOJ’s case, Judge Leon dismissed a substantive FCPA count as to Patel and one as to Tolleson and dismissed a money laundering count as to all defendants as well.
In the second Africa Sting trial, in December 2011 at the close of the DOJ’s case, Judge Leon dismissed the conspiracy charge as to all defendants. Because this was the only charge Stephen Giordanella faced, he was exonerated. Earlier this week, the jury found Patrick Caldwell and John Godsey not guilty. Yesterday, Judge Leon declared a mistrial on the remaining charges against the other defendants: John Mushriqui, Jeana Mushriqui and Mark Morales.
The recent events in the Africa Sting case have generated significant coverage. Wall Street Journal Corruption Currents calls the recent events a “major setback” for DOJ’s FCPA enforcement program. The FCPA Blog states that ”the DOJ’s embattled FCPA unit has suffered a string of high-profile losses.” The Blog of Legal Times calls it ”another setback for the Justice Department as the jurors in the case overwhelmingly supported not guilty verdicts for several defendants.”
Like in the first Africa Sting case, the DOJ has reportedly stated its intention to retry the charges it is able to in the second Africa Sting case. Steven McCool, counsel to Morales, is quoted in a Wall Street Journal article: “I am hopeful that, after considering the number of jurors who voted for acquittal and their thoughtful comments about their deliberation, Department of Justice officials will conclude that this case should be dismissed.”
In a Law360 article, various attorneys react to the recent Africa Sting events. Susan Kohn Ross of Mitchell Silberger & Knupp LLP state, “[The DOJ has] developed a certain arrogance. There was just this feeling on the part of the government that we’re right and screw you.’”