lindsey motion to strike state dept. declaration
TRANSCRIPT
EX PARTE APPLICATION TO STRIKE SUPPLEMENT
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JANET I. LEVINE (STATE BAR NO. 94255)MARTINIQUE E. BUSINO (STATE BAR NO. 270795)Crowell & Moring LLP515 South Flower Street, 40th FloorLos Angeles, California 90071-2258Phone: (213) 622-4750Fax: (213) 622-2690EMAIL: [email protected]: [email protected]
Attorneys for DefendantSteve K. Lee
JAN L. HANDZLIK (STATE BAR NO. 47959)GREENBERG TRAURIG LLP2450 Colorado Avenue, Suite 400 EastSanta Monica, Ca 90404Phone: (310) 586-6542Fax: (310) 586-0542EMAIL: [email protected]
Attorneys for Defendants Lindsey ManufacturingCompany and Keith E. Lindsey
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
ENRIQUE FAUSTINO AGUILARNORIEGA, ANGELA MARIAGOMEZ AGUILAR, LINDSEYMANUFACTURING COMPANY,KEITH E. LINDSEY, andSTEVE K. LEE,
Defendants.
))))))))))))))))
CASE NO. CR 10-1031(A)-AHM
EX PARTE APPLICATION FOR ANORDER TO STRIKE THESUPPLEMENT TO THEGOVERNMENT’S OPPOSITIONTO THE DEFENDANTS’ MOTIONTO DISMISS THE FIRSTSUPERSEDING INDICTMENTAND THE DECLARATION OFCLIFTON M. JOHNSON, OR, INTHE ALTERNATIVE, FOR ANORDER REQUIRING THAT MR.JOHNSON APPEAR AT THEHEARING ON DEFENDANTS’MOTION; EXHIBIT; [PROPOSED]ORDER (UNDER SEPARATECOVER)
Case 2:10-cr-01031-AHM Document 303 Filed 03/21/11 Page 1 of 9 Page ID #:6563
EX PARTE APPLICATION TO STRIKE SUPPLEMENT1
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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. LEVINECROWELL & MORING LLP
_/s/ Janet I. Levine __________________By: JANET I. LEVINEAttorneys for DefendantSteve K. Lee
DATED: March 21, 2011 Respectfully submitted,
JAN L. HANDZLIKGREENBERG TRAURIG LLP
__/s/ Jan L. Handzlik___________________By: JAN L. HANDZLIKAttorneys for DefendantsLindsey Manufacturing Company andKeith E. Lindsey
Case 2:10-cr-01031-AHM Document 303 Filed 03/21/11 Page 2 of 9 Page ID #:6564
EX PARTE APPLICATION TO STRIKE SUPPLEMENT1
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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 sur-
replies. 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
1 See L. Crim. R. 57-1(“When applicable directly or by analogy, the LocalRules of the Central District of California shall govern the conduct of criminalproceedings before the District Court, unless otherwise specified.”). Thegovernment attempts to deflect attention from Rule 7-10 by reminding the Courtthat “it noted” its plan to file this paper in its opposition to defendants’ motion, butits having so noted does not nullify Rule 7-10. See Supplement and Declaration at1-2.
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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
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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
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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
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EX PARTE APPLICATION TO STRIKE SUPPLEMENT5
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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 cross-
examination 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 SUPPLEMENT6
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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. LEVINECROWELL & MORING LLP
_/s/ Janet I. Levine __________________By: JANET I. LEVINEAttorney for DefendantSteve K. Lee
DATED: March 21, 2011 JAN L. HANDZLIKGREENBERG TRAURIG LLP
__/s/ Jan L. Handzlik___________________By: JAN L. HANDZLIKAttorneys for DefendantsLindsey Manufacturing Company andKeith E. Lindsey
Case 2:10-cr-01031-AHM Document 303 Filed 03/21/11 Page 8 of 9 Page ID #:6570
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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 asEX PARTE APPLICATION FOR AN ORDER TO STRIKE THESUPPLEMENT TO THE GOVERNMENT’S OPPOSITION TO THEDEFENDANTS’ MOTION TO DISMISS THE FIRST SUPERSEDINGINDICTMENT 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 theparties in this action by electronically filing the foregoing with the Clerk of theDistrict Court using its ECF System, which electronically notifies the following:
Douglas M. Miller (Assistant United States Attorney)Email: [email protected]
Nicola J. Mrazek (United States Department of Justice Senior TrialAttorney)Email: [email protected]
Jeffrey Goldberg (United States Department of Justice Senior Trial Attorney)Email: jeffrey.goldberg2@ usdoj.gov
Jan L. Handzlik (Attorney for Defendants Lindsey Manufacturing Companyand Keith E. Lindsey)Email: [email protected]
Stephen G. Larson (Attorney for Defendant Angela Maria Gomez Aguilar)Email: [email protected]: [email protected]
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 Filed 03/21/11 Page 9 of 9 Page ID #:6571
Page 000007 EXHIBIT A
Case 2:10-cr-01031-AHM Document 303-1 Filed 03/21/11 Page 1 of 1 Page ID #:6572
[PROPOSED] ORDER RE EX PARTE APPLICATION TO STRIKE SUPPLEMENT
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JANET I. LEVINE (STATE BAR NO. 94255)MARTINIQUE E. BUSINO (STATE BAR NO. 270795)Crowell & Moring LLP515 South Flower Street, 40th FloorLos Angeles, California 90071-2258Phone: (213) 622-4750Fax: (213) 622-2690EMAIL: [email protected]: [email protected]
Attorneys for DefendantSteve K. Lee
JAN L. HANDZLIK (STATE BAR NO. 47959)GREENBERG TRAURIG LLP2450 Colorado Avenue, Suite 400 EastSanta Monica, Ca 90404Phone: (310) 586-6542Fax: (310) 586-0542EMAIL: [email protected]
Attorneys for Defendants Lindsey ManufacturingCompany and Keith E. Lindsey
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
ENRIQUE FAUSTINO AGUILARNORIEGA, ANGELA MARIAGOMEZ AGUILAR, LINDSEYMANUFACTURING COMPANY,KEITH E. LINDSEY, andSTEVE K. LEE,
Defendants.
)))))))))))))))))
CASE NO. CR 10-1031(A)-AHM
[PROPOSED] ORDER GRANTINGEX PARTE APPLICATION TOSTRIKE THE SUPPLEMENT TOTHE GOVERNMENT’SOPPOSITION TO THEDEFENDANTS’ MOTION TODISMISS THE FIRSTSUPERSEDING INDICTMENTAND THE DECLARATION OFCLIFTON M. JOHNSON, OR, INTHE ALTERNATIVE, FOR ANORDER REQUIRING THAT MR.JOHNSON APPEAR AT THEHEARING ON DEFENDANTS’MOTION
Case 2:10-cr-01031-AHM Document 303-2 Filed 03/21/11 Page 1 of 3 Page ID #:6573
[PROPOSED] ORDER RE EX PARTE APPLICATION TO STRIKE SUPPLEMENT1
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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 MATZUNITED STATES DISTRICT JUDGE
Respectfully submitted,
CROWELL & MORING LLP
_/s/Janet I. Levine____________By: Janet I. LevineAttorneys for DefendantSteve K. Lee
Case 2:10-cr-01031-AHM Document 303-2 Filed 03/21/11 Page 2 of 3 Page ID #:6574
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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 TOSTRIKE THE SUPPLEMENT TO THE GOVERNMENT’S OPPOSITIONTO THE DEFENDANTS’ MOTION TO DISMISS THE FIRSTSUPERSEDING INDICTMENT AND THE DECLARATION OF CLIFTONM. JOHNSON, OR, IN THE ALTERNATIVE, FOR AN ORDERREQUIRING THAT MR. JOHNSON APPEAR AT THE HEARING ONDEFENDANTS’ MOTION on the parties in this action by electronically filingthe foregoing with the Clerk of the District Court using its ECF System, whichelectronically notifies the following:
Douglas M. Miller (Assistant United States Attorney)Email: [email protected]
Nicola J. Mrazek (United States Department of Justice Senior TrialAttorney)Email: [email protected]
Jeffrey Goldberg (United States Department of Justice Senior Trial Attorney)Email: jeffrey.goldberg2@ usdoj.gov
Jan L. Handzlik (Attorney for Defendants Lindsey Manufacturing Companyand Keith E. Lindsey)Email: [email protected]
Stephen G. Larson (Attorney for Defendant Angela Maria Gomez Aguilar)Email: [email protected]: [email protected]
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 303-2 Filed 03/21/11 Page 3 of 3 Page ID #:6575