Prosecutorial Misconduct: The Risks Inherent In Criminal Discovery

On Dec. 1, 2011, a California federal judge overturned a conviction in the first Foreign Corrupt Practices Act (FCPA) case against a corporation to proceed to a jury trial, citing "flagrant" prosecutorial misconduct where the government: (i) failed to turn over Brady evidence, (ii) obtained a search warrant with an application that contained false and misleading information, and (iii) intercepted a defendant's confidential communications with her attorney. The combined weight of these disparate acts of misconduct drove the court's decision and is an object lesson both for government lawyers and the defense bar.

The indictment in United States v. Noriega, et al., Case No.10-cr-1031 (AHM), 2011 U.S. Dist. LEXIS 138439 (C. Dist. Ca. Dec. 1, 2011), charged Lindsey Manufacturing Company, its president and vice president with conspiracy to violate the FCPA and substantive FCPA offenses. The indictment alleged that the Lindsey defendants bribed high-level employees of a government-owned Mexican utility company by funneling the payments through a third company owned and controlled by Enrique Faustino Aguilar Noriega (Enrique Aguilar) and his wife, Angela Maria Gomez Aguilar (Angela Aguilar). The government alleged that Lindsey paid the bribes to obtain contracts from the utility company. The trial began on March 30, 2011, and the jury returned a verdict on May 10. The defendants were convicted of eight counts of conspiracy, aiding and abetting, money laundering and substantive FCPA violations.

But this verdict did not stand. In a 41-page opinion, United States District Judge Howard Matz details six instances of prosecutorial misconduct by federal prosecutors that led the court to set aside the findings of guilt. Among these, the government suborned false or misleading grand jury testimony by an FBI agent whose veracity prosecutors knew to be questionable. Also, the government obtained a search warrant to intercept prison telephone calls between the Aguilars. Instead of adhering to the scope of the warrant, prosecutors directed the prison warden to intercept Angela Aguilar's e-mail communications, some of which consisted of communications with her attorney. Those communications were then disclosed to the government trial team.

Perhaps the most egregious example of prosecutorial misconduct, however, was the government's failure to timely disclose Brady material. In the landmark case of Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held...