lindsey motion to strike state dept. declaration

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 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


JAN L. HANDZLIKGREENBERG TRAURIG LLP

__/s/ Jan L. Handzlik___________________By: JAN L. HANDZLIKAttorneys for DefendantsLindsey Manufacturing Company andKeith E. Lindsey



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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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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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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.


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


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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


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


[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


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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


lindsey motion to strike state dept. declaration

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