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Case 4:09-cr-00629 Document 59 Filed in TXSD on 04/18/11 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

UNITED STATES OF AMERICA, Plaintiff,

§ § § § § § §

CRIMINAL NO. Cr-H-09-629

v.

JOHN JOSEPH O'SHEA, Defendant.

DEFENDANT O'SHEA'S OPPOSED MOTION TO STRIKE THE DECLARATION OF CLIFTON M. JOHNSON

Mr. O'Shea files this Motion to request that the Court strike the Declaration of Clifton M.

Johnson (the "Declaration"), Exhibit G (Docket No. 50-7) to the March 28,2011 Response of the

.United.States to.Defendant's.Motion.to Dismiss Indictment (Docket NQ. 50_) ("Resp-onse~'). ~_The_

government attached the Declaration to provide this Court with a "review of the OECD

Convention'" and discussion of "the foreign policy impact of a ruling that officials of state-

owned entities like CFE are not 'foreign officials' under the FCPA." Response at 9 n.3. As its

own comments indicate, the government is using this so-called declaration as a means to

introduce into evidence unqualified expert testimony in the form of legal opinions, inadmissible

hearsay, and irrelevant information.

A. Declarations must contain admissible facts; Johnson's "Declaration" contains expert opinions instead, which are inadmissible without a showing that he is an expert qualified to make them.

The Court should strike the Declaration because, while cloaked as a declaration, Mr.

Johnson's statements are in fact expert opinions and legal argument-impermissible subjects for

1 The government first offered this Declaration as a Supplement to its Opposition to the Defendants' Motion to Dismiss in United States v. Aguilar, No.1 0-1 031 (C.D. Ca. Mar. 18, 2011). On March 22, 2011, the district court in that case ordered that the Declaration be stricken. The Supplement, the defendants Motion to Strike, and the court's order granting the Motion to StIike are attached to this Motion as Exhibits A, B, and C respectively.

2 Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions ("Convention").

Case 4:09-cr-00629 Document 59 Filed in TXSD on 04/18/11 Page 2 of 5

a declaration. The Local Rules of the United States District Court for the Southern District of

Texas provide that declarations are instruments for offering factual, not legal, information. See

S.D. Tex. CrLR 12.2 (requiring a "declaration which sets forth with particularity the material

facts at issue"); S.D. Tex.CrLR 12.3 (requiring a "declaration of material facts"). While Mr.

Johnson states in the first paragraph of his Declaration that he is "familiar with international anti-

corruption law and practice, including the interpretation and application of the Convention," his

opinion is not truly based on his personal knowledge. Instead, he offers his legal opinion

throughout the Declaration as the "Assistant Legal Adviser for Law Enforcement and

Intelligence ('L/LEI') in the Legal Adviser's Office of the United States Department of State,

Washington, D.C."-in short, counsel for the government.

-

Even if such expert testimony were permissible in a declaration, the government fails to

address any qualifications Mr. Johnson may have as an expert witness with regard to the

opinions he offers. See Fed. R. Evid. 702.

B. The Declaration conflicts with the constltutlonal principle of separation of powers

and invades the province of the Court. '

Moreover, legal opinions on United States law are never admissible, whether or not

contained in a declaration. See Morris v. Equifax Info. Servs., LLC, CIV.A. H-04-423, 2005 WL

5976334, at *6 (S.D. Tex. Jan. 19,2005) ("Lawyer experts cannot opine as to what law governs

an issue or what the applicable law means because such opinions impermissibly intrude upon the

Court's duty to instruct the jury on the governing law.") (citing Askanase v. Fatjo, 130 F.3d 657,

673 (5th Cir. 1997». The federal courts, not the executive branch, are the final arbiter of what

the Foreign Corrupt Practices Act ("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."). In offering legal opinions interpreting federal law, (in an

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attempt to support what amounts to "prosecutorial common law,") the government is

disregarding the fundamental constitutional principle of separation of powers.

Asking the Court to consider the impact that a certain interpretation of the FCP A would

have on United States foreign policy likewise violates separation of powers principles.

Declaration 1 7. The foreign policy implications of a particular statutory interpretation, and how

to reconcile that interpretation, are matters for Congress and the President to address. Federal

courts interpret the laws as written, and Congress may amend the statute if it deems it is

necessary in light of a court's decision. See generally McNally v. United States, 483 U.S. 350,

360 (1987) ("If Congress desires to go further, it must speak more clearly.").

c. Factual material in declarations must be admissible; Johnson's Declaration in .contrast.is replete with irrelevant information and Inadmtsslble.hearsay..

Alternatively, if not considered as expert opinion, the lay opinion of one employee of the

Department of State on how to interpret treaties, anti-bribery laws, and the FCPA is irrelevant to

any issue before the Court and therefore inadmissible. See Fed. R. Evid. 401; Fed. R. Evid. 402.

In addition, while declarations must set forth facts that are admissible evidence, the

Declaration at issue here is littered with inadmissible hearsay statements by Mr. Johnson. See

Fed. R. Evid. 801; Fed. R. Evid. 602; see also Fed. R. Civ. P. 56(c)(4) (providing that a

declaration "must be made on personal knowledge, [and] set out facts that would be admissible

in evidence"). For example, Mr. Johnson represents-without any apparent personal

knowledge-that the United States was a driving force behind the Convention, Declaration 1 2;

that the United States interprets its obligations under the Convention a certain way, id. 1 5; and

that the United States has made certain assertions over the years relating to its own compliance

with the Convention, id. 1 6. Nothing in the Declaration supports that Mr. Johnson is as

omniscient as these statements suggest.

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The Declaration also contains inadmissible hearsay within hearsay as to Mr. Johnson's

accounts of what transpired during a 1998 hearing. ld. '1'15, 6; see Fed. R. Evid. 801. In making

these assertions about what took place outside of the court, Mr. Johnson fails to provide sworn or

certified copies of documents on which he relies. See Fed. R. Civ. P. 56(c). Because Mr.

Johnson does not state that he attended the 1998 hearing and has personal knowledge of the

testimony given during the hearing, he is required to attach the Senate Report to which he cites in

the Declaration.

D. Conclusion

Because it offers improper legal opinions from an unqualified expert that invade the

province of the Court, rather than facts appropriate for a declaration, and because its content is

irrelevant and includes inadmissible hearsay, the Court should strike the Declaration of Clifton

M. Johnson.

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Respectfully submitted,

lsi Joel Androphy Joel Androphy

State Bar No. 01254700 S.D. Tex. 53457

Sarah M. Frazier

State Bar No. 24027320 S.D. Tex. 27980

Ashley Gargour

State Bar No. 24065272

S.D. Tex. 1040478

Berg & Androphy

3704 Travis Street

Houston, Texas 77002 Telephone (713) 529-5622 Facsimile (713) 529-3785 e_:_m§:ii: . jill1drophy@bafirm.()o~ E-mail: sfrazier@bafirm.com E-mail: agargour@bafirm.com

ATTORNEYS FOR DEFENDANT JOHN JOSEPH O'SHEA

CERTIFICATE OF SERVICE

On April 18, 2011, a true and correct copy of the foregoing document was served on

counsel electronically through the CMlECF System.

lsI Sarah M. Frazier

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