When Judge Richard Leon declared a mistrial in the first shot-show trial Thursday, sending the jury home after five days of deadlocked deliberations, he handed the DOJ's FCPA unit its biggest setback ever. Against the four defendants who went on trial in mid May on multiple counts, there wasn't a single conviction on a single count.
It may not be such a sweet victory for the first four defendants, though. They're still facing retrials and more huge legal fees. Still, it would have been a lot worse for them if they'd been convicted last week. Today they'd be facing serious prison time and forfeiture of their assets.
For us, the mistrial contains some important lessons. Here are three:
Not all of the shot-show defendants were created equal.
Three of the original 22 may have already pleaded guilty, but that doesn't prove the guilt of the others. The three who copped guilty pleas were likely facing the worse of the evidence -- undercover surveillance tapes with them saying really dumb things ("I love bribery"). But not all of the defendants were on all of the tapes, and some hardly appeared at all. The three guilty pleas may have been the low-hanging fruit for the DOJ. The rest will be a lot harder to reach.
Juries may hate bribery, as we often say, but stings really stink.
Let's remember that in this foreign bribery case, there was no real foreign bribery because there was no real foreign official. The guy 'taking the money,' as the jury heard every day, wasn't a crooked pol from Gabon after all. He was a clever fed doing some play acting. Do juries like to see working people tricked by the government in front of multiple hidden microphones and cameras? Nope. In the best of economic and political times, the government isn't all that loved. These days, people think our government is, well, you know.
Bottom line: stings make sizzling headlines but can also produce creepy evidence unfavorable to the prosecution.
An important government witness with severe credibility problems is a weak foundation.
The shot-show case rests almost entirely on Richard Bistrong, who introduced the undercover FBI team to his friends and colleagues in the military and police equipment industry, who were then sucked into the alleged bribery scheme.
Bistrong was himself on the wrong side of the law before the shot-show sting. In September last year, he pleaded guilty to one count of conspiracy to violate the Foreign Corrupt Practices Act and other statutes. His charges didn't come from the sting but from his own business practices. He then turned state's evidence (and enabler) in the hope of a lighter sentence.
Bistrong brings a lot of baggage, and with 19 defense teams taking aim, his credibility problems put the feds in a fix. The first four defendants said before the shot-show trial opened that the case against them was "built entirely around an irredeemably corrupt con-man, Richard Bistrong, and that, by mishandling him and by other misconduct, the government allowed Bistrong to contaminate every aspect of the operation."
If that's even half true, the government's case was always a house of cards.
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Prosecutors said after Thursday's mistrial that they plan to retry the first four shot-show defendants -- Pankesh Patel, Andrew Bigelow, John Benson Weir, and Lee Allen Tolleson. After that, three more trials are still needed for the remaining 15 defendants. (Judge Leon wisely divided the original 22 defendants into four groups. He didn't want his courtroom to become a mass-trial circus where the rights of defendants are a lot harder to protect.)
Our take? The feds never needed to use their bag of tricks to dig up FCPA defendants. There are plenty of real targets out there and they're easy to find. Just listen to the whistleblowers. Or look inside Tyson Foods, Siemens, BAE, Daimler, and dozens of other companies that have admitted violating the FCPA, paid big fines, but produced no individual FCPA defendants.
Forget future shot-show trials.
Focus instead on the real bad apples who paid real bribes to real foreign officials.
Editor's Note: The SHOT Show is owned by the Natioanal Shooting Sports Foundation (NSSF) and is a registered trademark of the NSSF. The SHOT Show has no connection with the arrests made by the FBI in Las Vegas in January 0f 2010. No arrests were made at the SHOT Show and neither the SHOT Show nor the NSSF are in anyway involved in the matter.