Sometimes you can tell the importance of an event by the crowd it draws.
That certainly was the case Tuesday as a courtroom packed with white collar defense attorneys, reporters, FBI agents and DOJ lawyers watched opening arguments in a foreign corruption trial for four defendants charged with attempting to pay bribes to government officials in Africa to win lucrative supply contracts.
The left side of the room was the de facto government bleachers, and seated there were DOJ bigwigs Fraud Section Chief Denis McInerney, Deputy Assistant Attorney General Greg Andres, Chuck Duross, the head of the Foreign Corrupt Practices Act team, and other top brass. Also in attendance was Steven Durham, chief of corruption unit of the D.C. U.S. Attorney’s Office.
The DOJ leadership had turned up to watch a case that many view as a test of the department’s increasingly aggressive enforcement of the FCPA. They listened as Assistant U.S. Attorney Jonathan Haray told the jury, “This was a corrupt deal, plain and simple, and they all knew it.”
Paul Pelletier, the former chief deputy in the fraud section, showed up just before Haray began. His former colleagues joked with him that he should sit on the right side of the room now that he’s in private practice. Pelletier recently jumped to the Washington office of Boston-based Mintz Levin Cohn Ferris Glovsky and Popeo P.C. after nine years in the section.
Haray told jurors that the defendants knowingly agreed to pay bribes to government officials in Africa to win lucrative supply contracts, and were caught as the result of an undercover sting designed to “root out corruption in the international arms industry.”
But defense attorneys claimed that the FBI’s investigation was corrupted because the agents ceded control of the operation to its chief cooperator, a man they called a “highly incentivized criminal informant” and a “scoundrel.”
“Mr. Haray wants you to believe this case is about a few snippets of tape,” defense attorney Eric Bruce said. “It’s not. This case is about law enforcement not following the rules first, and rushing to make arrests second.”
After more than 16 months of pre-trial proceedings, the much-anticipated foreign bribery case began Tuesday. Twenty-two defendants were charged in 16 sealed indictments filed in December 2009 with violating and conspiring to violate the FCPA, which prohibits bribes to foreign officials to obtain or retain business, as well as conspiracy to launder money.
The indictments were unsealed in January 2010 after the arrests of all but one of the defendants in a dramatic roundup at a gun show in Las Vegas. The defendants have since been broken into four separate trial groups, and defendants Pankesh Patel, Andrew Bigelow, John Benson Weir and Lee Allen Tolleson make up the first group.
The case is the culmination of a complicated sting operation in which FBI agents, in coordination with industry executive-turned-cooperator Richard Bistrong, posed as representatives of the West African country of Gabon, soliciting bribes for a fictitious $15 million deal to supply the Ministry of Defense. The investigation was the first large scale use of wiretaps, undercover agents and other clandestine investigative techniques in an FCPA case.
Haray said that the defendants had no concerns that the commissions they were paying would line the pockets of corrupt ministers and would not directly benefit the impoverished African country itself. He repeatedly pointed at each of the defendants during his opening, describing them as willing participants in the corrupt scheme.
Haray mentioned Bistrong only briefly during his opening, instead focusing on the defendants’ interactions with the undercover agents they thought to be representatives of Gabon. During a hearing on Monday, it was divulged that the government is unlikely to call Bistrong as a witness.
Bistrong, a former vice president of international sales at Armor Holdings Inc., pleaded guilty to conspiracy in September. He was nabbed in an investigation of corrupt sales to United Nations peacekeeping units in the mid 2000s.
Bruce forcefully drew attention to Bistrong’s absence from the government’s statements during his opening. He repeatedly called Bistrong a “scoundrel,” painting him as a master manipulator who had the FBI wrapped around his finger.
“Let’s see if the government even has the nerve to call Mr. Bistrong. I’m betting they don’t do it,” Bruce said. “You could scour this country of ours and not find a less reliable, less trustworthy, less honest person.”
Judge Richard Leon, who is presiding over the case, has previously indicated that he will allow the defendants to call Bistrong.
Attorney Todd Foster, who is representing Weir, said the Bistrong was the “architect” of the case and that the FBI agents ceded control of the investigation to him, against agency rules, out of a desire to make headline-grabbing arrests. Foster outlined how each stage of the investigation was allegedly designed by Bistrong, whose only goal was to stay out of jail.
The defense attorneys also sought to rebut Haray’s claims that their clients are shady international arms dealers, instead describing them as middling businessmen dealing in law enforcement products like laser sights, tear gas and uniforms.
Lawyers for Tolleson painted him as a “small town kid,” who was home-schooled, had no college education, and only became caught up in the FBI sting when his employer, Arkansas-based ALS Technologies, hired Bistrong.
At one point Tolleson’s lawyer, Joseph Passanise, asked Tolleson’s wife, who was seated in the spectator’s seats, to stand for the jury. Tolleson, who has a boyish face and anxiously bounced his leg throughout the hearing, smiled quickly at her as she stood.
Each of the opening statements lasted roughly twenty minutes and attorneys for Andrew Bigelow opted not to give one. The trial now turns to government’s case-in-chief, in which it must lay out its evidence against the defendants.
Corrected 5/19/11: This article incorrectly said Steven Durham is the Fraud and Public Corruption Chief in the D.C. U.S. Attorney’s Office. Durham is the chief of the office’s corruption unit.