Wednesday, March 23, 2011
Previously blogged was a FCPA Act case with some interesting issues - such as whether the FCPA applies to state-owned entities. (see here) and whether a grand jury was being used for trial preparation (see here). The government had filed a supplemental memorandum and declaration of a US State Dept. official on the "foreign official" issue. The court struck the government's supplemental filing and the declaration of the State Dept. official, refusing to accept that courts needed to defer to foreign policy concerns. The hearing on the motion is set for later this week. (See also Mike Koehler, FCPAProfessor, here)
In the meantime, defense counsel has been busy. They filed a motion claiming a Brady violation by the government. This is clearly a "hot" topic these days. They claim that it's a week before trial and the government did not provide exculpatory material that the government has had for "five and one-half weeks." Defense counsel also claims that:
"[h]ad the defense had this information in a timely fashion, it could have attempted to depose the witnesss under Federal Rule of Criminal Procedure 15, sought other evidence to corroborate this information, and followed through with our own investigation. There is no sound reason and no justification for the government's suppression of this favorable evidence."
The defense offers suggestions on possible remedies that the court could employ here. These include, "consistent with W.R. Grace, the jury should be instructed that the prosecution withheld exculpatory evidence from the defense, contrary to its obligations."