The DOJ yesterday suffered what could be a key defeat in the battle over who's a "foreign official" under the FCPA when the judge blocked submission of an extraordinary State Department declaration.
Last Friday, the government in the Lindsey case filed a supplemental memorandum and declaration of a U.S. State Department official concerning the defendants' motion to dismiss the indictment on the "foreign official" issue.
The State Department official -- Clifton M. Johnson, Assistant Legal Adviser for Law Enforcement and Intelligence in the Legal Adviser's Office -- said the judge should not grant the defendants' motion to dismiss because it would adversely impact U.S. foreign policy. He asserted that the FCPA was consistent with the OECD anti-bribery convention and that the "foreign official" and state-owned entity coverage of the FCPA must be maintained.
The defendants filed a motion to strike the government's supplemental pleading and the declaration of the State Department official. They argued that the declaration was inappropriate and without a legal basis because the State Department's opinion about how a federal criminal statute should be interpreted was irrelevant.
The defendants also argued that federal judges are not required to bow to foreign policy concerns, but rather have a duty to interpret federal criminal statutes in a manner consistent with the Constitution and federal law.
Judge Matz granted the defendants motion to strike the government's supplemental filing and the declaration of the State Department official on Tuesday afternoon, handing a significant setback to the DOJ in the case.
As a result, the hearing on the defendants' motion to dismiss on grounds that the FCPA does not apply to officials of foreign, state-owned entities will go ahead tomorrow morning as scheduled.
The case is styled U.S. v. Noriega et al, U.S. District Court, Central District of California (Western Division - Los Angeles), Case #: 2:10-cr-01031-AHM-4.
Download a copy of the February 28, 2011 motion to dismiss the superseding indictment by Lindsey Manufacturing Company, Dr. Keith Lindsey, and Steve K. Lee here.