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Lindsey Motion to Strike State Dept. Declaration

Lindsey Motion to Strike State Dept. Declaration

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Case 2:10-cr-01031-AHM Document 303

Filed 03/21/11 Page 1 of 9 Page ID #:6563

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JANET I. LEVINE (STATE BAR NO. 94255) MARTINIQUE E. BUSINO (STATE BAR NO. 270795) Crowell & Moring LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071-2258 Phone: (213) 622-4750 Fax: (213) 622-2690 EMAIL: jlevine@crowell.com EMAIL: mbusino@crowell.com Attorneys for Defendant Steve K. Lee JAN L. HANDZLIK (STATE BAR NO. 47959) GREENBERG TRAURIG LLP 2450 Colorado Avenue, Suite 400 East Santa Monica, Ca 90404 Phone: (310) 586-6542 Fax: (310) 586-0542 EMAIL: handzlikj@gtlaw.com Attorneys for Defendants Lindsey Manufacturing Company and Keith E. Lindsey UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION UNITED STATES OF AMERICA, Plaintiff, v. ENRIQUE FAUSTINO AGUILAR NORIEGA, ANGELA MARIA GOMEZ AGUILAR, LINDSEY MANUFACTURING COMPANY, KEITH E. LINDSEY, and STEVE K. LEE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. CR 10-1031(A)-AHM EX PARTE APPLICATION FOR AN ORDER TO STRIKE THE SUPPLEMENT TO THE GOVERNMENT’S OPPOSITION TO THE DEFENDANTS’ MOTION TO DISMISS THE FIRST SUPERSEDING INDICTMENT AND THE DECLARATION OF CLIFTON M. JOHNSON, OR, IN THE ALTERNATIVE, FOR AN ORDER REQUIRING THAT MR. JOHNSON APPEAR AT THE HEARING ON DEFENDANTS’ MOTION; EXHIBIT; [PROPOSED] ORDER (UNDER SEPARATE COVER)

EX PARTE APPLICATION TO STRIKE SUPPLEMENT

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Defendants Lindsey Manufacturing Company, Keith E. Lindsey, and Steve K. Lee (collectively “defendants”), by their counsel of record, hereby apply Ex Parte to Strike the Supplement to the Government’s Opposition to the Defendants’ Motion to Dismiss the First Superseding Indictment and the Declaration of Clifton M. Johnson. In the alternative, defendants apply for an order requiring that Mr. Johnson appear at the Hearing on Defendants’ Motion. Government counsel has informed counsel for Mr. Lee that the government will not voluntarily produce Mr. Johnson at this hearing. This application is based on the attached Memorandum of Points and Authorities, Exhibit, all files and records in this case, and all matter that may be later adduced. The government has been advised of this application and relief sought, and does not oppose the ex parte nature of the application, but does oppose the relief sought. DATED: March 21, 2011 Respectfully submitted, JANET I. LEVINE CROWELL & MORING LLP _/s/ Janet I. Levine __________________ By: JANET I. LEVINE Attorneys for Defendant Steve K. Lee DATED: March 21, 2011 Respectfully submitted, JAN L. HANDZLIK GREENBERG TRAURIG LLP __/s/ Jan L. Handzlik___________________ By: JAN L. HANDZLIK Attorneys for Defendants Lindsey Manufacturing Company and Keith E. Lindsey
EX PARTE APPLICATION TO STRIKE SUPPLEMENT 1

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On March 18, 2011, without leave of the Court, the government improperly filed what amounts to a sur-reply to Defendants’ Motion to Dismiss the First Superseding Indictment. See Supplement to the Government’s Opposition to the Defendant’s Motion to Dismiss the First Superseding Indictment; Declaration of Clifton M. Johnson (Docket No. 296) (“Supplement and Declaration”); see also Defendants’ Notice of Motion and Motion to Dismiss the First Superseding Indictment (Docket No. 220) (“Def. Mot.”). The government’s Supplement and Declaration fail to satisfy local and federal rules limiting the submission of surreplies. They also proffer irrelevant arguments and authorities. For these reasons, defendants Lindsey Manufacturing Company, Keith E. Lindsey, and Steve K. Lee request that the Court strike the supplement and declaration or, in the alternative, order that the declarant on whose sworn statement the sur-reply is based appear at the hearing on defendants’ motion to dismiss. A. The Supplement and Its Accompanying Declaration is an Improper Sur-Reply The government styles its filing as a “supplement.” In actuality, it is an inappropriate sur-reply brief filed without leave of court and in a manner that deprives defendants of the ability to analyze all responses. Local Civil Rule 7-10 provides that “[a]bsent prior written order of the Court, the [party opposing a motion] shall not file a response to the reply.” L. R. Civ. 7-10.1 See L. Crim. R. 57-1(“When applicable directly or by analogy, the Local Rules of the Central District of California shall govern the conduct of criminal proceedings before the District Court, unless otherwise specified.”). The government attempts to deflect attention from Rule 7-10 by reminding the Court that “it noted” its plan to file this paper in its opposition to defendants’ motion, but its having so noted does not nullify Rule 7-10. See Supplement and Declaration at 1-2.
1

EX PARTE APPLICATION TO STRIKE SUPPLEMENT 1

Case 2:10-cr-01031-AHM Document 303

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The government’s March 18th filing and the attached declaration are a response to the defendants’ opening reply brief. The government’s purported declarant, Clifton M. Johnson, submits argument on the issue before the Court, which has already been briefed in the motion, opposition and reply. Specifically, the declaration sets forth the text of the Organization for Economic Cooperation and Development Convention (“OECD”) on Combating Bribery of Foreign Public Officials in International Business Transactions (“Convention”), some legislative history relating to 1998 amendments to the FCPA, and the government’s interpretation of the combined significance of those sources. See Declaration of Clifton M. Johnson, Exhibit 1 to Supplement and Declaration, ¶¶ 2 (history of the United States’ negotiation of the Convention), 3 (text of the Convention), 4 (text of a Commentary on the Convention, and statement of interpretive value of the Commentary), 5 (United States’ interpretation of its obligations under the Convention), 6 (history of United States’ assertions relating to the Convention), 7 (argument on the impact of one interpretation of the FCPA). These are nothing more than reasons the government opposes defendants’ motion. The government had an opportunity to make these arguments in its Opposition. See L. Civ. R. 7-9; L. Cr. R. 57-1. The Court should strike the government’s attempt at a second bite at the apple. B. The Supplement and Declaration Relies on Hearsay and Expert Testimony Presented by an Unqualified Witness, and the Core Argument it Advances is Irrelevant There are other grounds upon which to strike the government’s inappropriate filing, including that most of the statements of Mr. Johnson’s declaration are comprised of just legal argument disguised as a declaration, or hearsay, offered in evidence to prove the truth of the matter asserted. See Federal Rule of Evidence 801. Specifically, the government asks the defendants and the Court to accept that Mr. Johnson is personally “familiar with international anti-corruption law and
EX PARTE APPLICATION TO STRIKE SUPPLEMENT 2

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practice, including the interpretation and application of the Convention,” Supplement and Declaration ¶ 1; that the United States was a driving force behind the Convention, id. ¶ 2; that the United States interprets its obligations under the Convention a certain way, id. ¶ 5; that the United States has made certain assertions over the years relating to its own compliance with the Convention, id. ¶ 6; that there would be a particular impact on United States foreign policy were the Court to adopt the defendants’ interpretation of the FCPA, id. ¶ 7; and so on. Also, the declaration does not comport with rules applicable to declarations. While Local Civil Rule 7-6 provides that “factual contentions involved in any motion . . . shall be presented, heard, and determined upon declarations and other written evidence alone,” because the declaration fails to meet the standards of Local Civil Rule 7-7, the Court should strike it. Local Civil Rule 7-7 provides that “[d]eclarations shall contain only factual, evidentiary matter and shall conform as far as possible to the requirements of F. R. Civ. P. 56(e).” L. Civ. R. 7-7. Federal Rule 56(e), in turn, requires that: An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. Fed. R. Civ. P. 56(c)(4); L. Cr. R. 57-1. See also L. Cr. R. 12-1.1 (setting forth analogous requirements for declarations submitted in support of motions to suppress). The Johnson declaration fails these standards in several ways. It fails to satisfy Local Rule 7-7 because it contains Mr. Johnson’s opinion of the weight to be given to treaties, interpretation of the Convention and to the FCPA, and about the positive impact of a particular interpretation of the FCPA, none of which are “factual material.” Supplement and Declaration ¶¶ 4, 5, 7. It also does not
EX PARTE APPLICATION TO STRIKE SUPPLEMENT 3

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conform to the requirements of Rule 56(c)(4) because Mr. Johnson offers statements that would not be admissible in evidence. For example, there is no indication on the face of the declaration that any statement within it (such as that the United States was a driving force in Convention negotiations) is made upon personal knowledge. See Fed. R. Evid. 602. Moreover, putting aside the fact that expert and opinion testimony are themselves impermissible subjects of declarations, the government’s proffer makes no attempt to qualify Mr. Johnson as a witness with the expertise necessary to opine on the issues he addresses. See Fed. R. Evid. 702. The declaration also contains hearsay within hearsay, such as accounts of what took place in a 1998 hearing. Supplement and Declaration ¶¶ 5, 6; see Fed. R. Evid. 801. Moreover, Mr. Johnson’s assertions about what took place outside of the court are also not supported by sworn or certified copies of papers on which the declarant purports to or may otherwise rely, a further failure to satisfy Rule 56. Finally, much of Mr. Johnson’s declaration is irrelevant. See Federal Rule of Evidence 401. The opinion of one employee of the Department of State, or even of the Department of State as a whole, on the terms of the Convention and what the treaty required of the United States, as well as the meaning of the FCPA, a United States criminal statute, has no bearing on the matter before the Court. In any event, it is the job of the federal courts, not the executive branch, to be the final arbiter of what the FCPA actually provides. See generally Marbury v. Madison, 1 Cranch 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). On the other hand, the foreign policy implications of a particular interpretation, and how to deal with them, are the business of Congress and the President to address. Mr. Johnson’s suggestion to this Court to decide foreign policy is inappropriate. Courts concern themselves with the interpretation of the law as written. Congress is perfectly capable of amending the statute if it decides
EX PARTE APPLICATION TO STRIKE SUPPLEMENT 4

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it is necessary to do so in light of a court’s decision. See generally McNally v. United States, 483U.S. 350, 360 (1987) superseded by statute, Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (“If Congress desires to go further, it must speak more clearly.”). The government has submitted a brief masquerading as a declaration. This additional argument was submitted without leave of the Court, and without adhering to standards applicable to declarations. For these reasons, defendants request that the Court strike the Supplement and Declaration. C. At a Minimum, the Court Should Require that Mr. Johnson Appear Even though it submitted Mr. Johnson’s declaration and urges this Court to rely on the arguments made in it, the government has informed the defendants that it does not intend to voluntarily make Mr. Johnson available at the hearing scheduled for argument on defendants’ motion to dismiss. See March 19, 2011 Letter, Exhibit A. If the Court is inclined to consider Mr. Johnson’s declaration, defendants request that the Court order that Mr. Johnson appear for crossexamination at the hearing on defendants’ motion to dismiss. See L. Civ. 7-6 (“[T]he Court may, in its discretion, require or allow oral examination of any declarant or any other witness.”); see L. Cr. R. 57-1. See also L. Cr. R. 12-1.3 (providing that the parties should make available for cross-examination any declarant in connection with a motion to suppress). Defendants also request that the Court order that the government provide a sworn and certified copy of any written material or Jencks on which Mr. Johnson has or will rely. See Fed. R. Civ. P. 56(c)(4); L. Civ. R. 7-7; L. Cr. R. 57-1. See also Fed. R. Crim. P. 26.2. ///

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EX PARTE APPLICATION TO STRIKE SUPPLEMENT 5

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III.

CONCLUSION For the reasons set forth herein, this Court should strike the Supplement to

the Government’s Opposition to the Defendant’s Motion to Dismiss the First Superseding Indictment and the Declaration of Clifton M. Johnson or, in the alternative, exercise its discretion to require Mr. Johnson to appear at a hearing on defendants’ motion to dismiss. DATED: March 21, 2011 Respectfully submitted, JANET I. LEVINE CROWELL & MORING LLP _/s/ Janet I. Levine __________________ By: JANET I. LEVINE Attorney for Defendant Steve K. Lee DATED: March 21, 2011 JAN L. HANDZLIK GREENBERG TRAURIG LLP __/s/ Jan L. Handzlik___________________ By: JAN L. HANDZLIK Attorneys for Defendants Lindsey Manufacturing Company and Keith E. Lindsey

EX PARTE APPLICATION TO STRIKE SUPPLEMENT 6

Case 2:10-cr-01031-AHM Document 303

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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California, at Crowell & Moring LLP at 515 S. Flower Street, 40th Floor, Los Angeles, California 90071. I am over the age of 18 and not a party to the within action. On March 21, 2011, I served the foregoing document described as EX PARTE APPLICATION FOR AN ORDER TO STRIKE THE SUPPLEMENT TO THE GOVERNMENT’S OPPOSITION TO THE DEFENDANTS’ MOTION TO DISMISS THE FIRST SUPERSEDING INDICTMENT AND THE DECLARATION OF CLIFTON M. JOHNSON, OR, IN THE ALTERNATIVE, FOR AN ORDER REQUIRING THAT MR. JOHNSON APPEAR AT THE HEARING ON DEFENDANTS’ MOTION; EXHIBIT; [PROPOSED] ORDER (UNDER SEPARATE COVER) on the parties in this action by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies the following: Douglas M. Miller (Assistant United States Attorney) Email: doug.miller@usdoj.gov Nicola J. Mrazek (United States Department of Justice Senior Trial Attorney) Email: nicola.mrazek@usdoj.gov Jeffrey Goldberg (United States Department of Justice Senior Trial Attorney) Email: jeffrey.goldberg2@ usdoj.gov Jan L. Handzlik (Attorney for Defendants Lindsey Manufacturing Company and Keith E. Lindsey) Email: handzlikj@gtlaw.com Stephen G. Larson (Attorney for Defendant Angela Maria Gomez Aguilar) Email: slarson@girardikeese.com Email: mweber@girardikeese.com I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 21, 2011, at Los Angeles, California. _/s/Kristen Savage Garcia________________ KRISTEN SAVAGE GARCIA

Case 2:10-cr-01031-AHM Document 303-1

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Page 000007

EXHIBIT A

Case 2:10-cr-01031-AHM Document 303-2

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JANET I. LEVINE (STATE BAR NO. 94255) MARTINIQUE E. BUSINO (STATE BAR NO. 270795) Crowell & Moring LLP 515 South Flower Street, 40th Floor Los Angeles, California 90071-2258 Phone: (213) 622-4750 Fax: (213) 622-2690 EMAIL: jlevine@crowell.com EMAIL: mbusino@crowell.com Attorneys for Defendant Steve K. Lee JAN L. HANDZLIK (STATE BAR NO. 47959) GREENBERG TRAURIG LLP 2450 Colorado Avenue, Suite 400 East Santa Monica, Ca 90404 Phone: (310) 586-6542 Fax: (310) 586-0542 EMAIL: handzlikj@gtlaw.com Attorneys for Defendants Lindsey Manufacturing Company and Keith E. Lindsey UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION UNITED STATES OF AMERICA, Plaintiff, v. ENRIQUE FAUSTINO AGUILAR NORIEGA, ANGELA MARIA GOMEZ AGUILAR, LINDSEY MANUFACTURING COMPANY, KEITH E. LINDSEY, and STEVE K. LEE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. CR 10-1031(A)-AHM [PROPOSED] ORDER GRANTING EX PARTE APPLICATION TO STRIKE THE SUPPLEMENT TO THE GOVERNMENT’S OPPOSITION TO THE DEFENDANTS’ MOTION TO DISMISS THE FIRST SUPERSEDING INDICTMENT AND THE DECLARATION OF CLIFTON M. JOHNSON, OR, IN THE ALTERNATIVE, FOR AN ORDER REQUIRING THAT MR. JOHNSON APPEAR AT THE HEARING ON DEFENDANTS’ MOTION

[PROPOSED] ORDER RE EX PARTE APPLICATION TO STRIKE SUPPLEMENT

Case 2:10-cr-01031-AHM Document 303-2

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GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED that the government’s pleading, captioned “Supplement to the Government’s Opposition to the Defendants’ Motion to Dismiss the First Superseding Indictment; Declaration of Clifton M. Johnson” be stricken or, in the alternative, that Clifton Johnson be ordered to appear in Court on March 24, 2011 with all of the documents on which he relies, and all Fed. R. Crim. P. 26.2 materials, and submit to cross-examination. DATED: ________________ __________________________________ HONORABLE A. HOWARD MATZ UNITED STATES DISTRICT JUDGE

Respectfully submitted, CROWELL & MORING LLP

_/s/Janet I. Levine____________ By: Janet I. Levine Attorneys for Defendant Steve K. Lee

[PROPOSED] ORDER RE EX PARTE APPLICATION TO STRIKE SUPPLEMENT 1

Case 2:10-cr-01031-AHM Document 303-2

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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California, at Crowell & Moring LLP at 515 S. Flower Street, 40th Floor, Los Angeles, California 90071. I am over the age of 18 and not a party to the within action. On March 21, 2011, I served the foregoing document described as [PROPOSED] ORDER GRANTING EX PARTE APPLICATION TO STRIKE THE SUPPLEMENT TO THE GOVERNMENT’S OPPOSITION TO THE DEFENDANTS’ MOTION TO DISMISS THE FIRST SUPERSEDING INDICTMENT AND THE DECLARATION OF CLIFTON M. JOHNSON, OR, IN THE ALTERNATIVE, FOR AN ORDER REQUIRING THAT MR. JOHNSON APPEAR AT THE HEARING ON DEFENDANTS’ MOTION on the parties in this action by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies the following: Douglas M. Miller (Assistant United States Attorney) Email: doug.miller@usdoj.gov Nicola J. Mrazek (United States Department of Justice Senior Trial Attorney) Email: nicola.mrazek@usdoj.gov Jeffrey Goldberg (United States Department of Justice Senior Trial Attorney) Email: jeffrey.goldberg2@ usdoj.gov Jan L. Handzlik (Attorney for Defendants Lindsey Manufacturing Company and Keith E. Lindsey) Email: handzlikj@gtlaw.com Stephen G. Larson (Attorney for Defendant Angela Maria Gomez Aguilar) Email: slarson@girardikeese.com Email: mweber@girardikeese.com I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 21, 2011, at Los Angeles, California. _/s/Kristen Savage Garcia________________ KRISTEN SAVAGE GARCIA

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