Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SOUTHERN DIVISION
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UNITED STATES OF AMERICA CASE NO. SA CR-09-0077-JVS
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Plaintiff, DEFENDANTS’ JOINT NOTICE OF
21 MOTION AND MOTION TO
v. COMPEL DISCOVERY;
22 [PROPOSED] ORDER
STUART CARSON, HONG CARSON,
23 a/k/a “Rose Carson,” PAUL
COSGROVE, DAVID EDMONDS, Date: September 28, 2009
24 FLAVIO RICOTTI, and HAN YONG Time: 9:00 a.m.
KIM, Ctrm: 10C [Hon. James V. Selna]
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Defendants.
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Case 8:09-cr-00077-JVS Document 101 Filed 09/04/09 Page 2 of 59
1 TABLE OF CONTENTS
2 TABLE OF AUTHORITIES ……………………………………………… iv
3 MEMORANDUM OF POINTS AND AUTHORITIES …………………. 1
4 I. INTRODUCTION …………………………………………………. 1
5 II. IMI/CCI’S COOPERATION WITH THE GOVERNMENT
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AND WITHHOLDING OF DISCOVERY ……………………….. 2
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1 TABLE OF AUTHORITIES
2 CASES:
3
Beckwith v. United States
4 425 U.S. 341 (1976) ……………………………………………………….36
5 Brady v. Maryland
12 In re Columbia/HCA Healthcare
th
Corp. Billing Practices Litigation
293 F.3d 289 (6 Cir. 2002) ………………………………………………20
13
In re Grand Jury Invest.
14 974 F.2d 1068 (9th Cir. 1992) ……………………………………………..17
15 In re Leslie Fay Companies, Inc. Securities Litigation
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7 18 U.S.C. § 1519………………………………………………………………...1
9 RULES:
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Fed. R. Crim. P. 16 ……………………………………………………….passim
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Fed. R. Evid. 801(d)(2)(E) …..………………………………………………..42
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14 TREATISES:
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SOUTHERN DIVISION
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UNITED STATES OF AMERICA CASE NO. SA CR-09-0077-JVS
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Plaintiff, DEFENDANTS’ JOINT NOTICE OF
21 MOTION AND MOTION TO
v. COMPEL DISCOVERY;
22 [PROPOSED] ORDER
STUART CARSON, HONG CARSON,
23 a/k/a “Rose Carson,” PAUL
COSGROVE, DAVID EDMONDS, Date: September 28, 2009
24 FLAVIO RICOTTI, and HAN YONG Time: 9:00 a.m.
KIM, Ctrm: 10C [Hon. James V. Selna]
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Defendants.
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3 PLEASE TAKE NOTICE that on September 28, 2009, at 9:00 a.m., in the
4 courtroom of the Honorable James V. Selna, or as soon thereafter as this matter
5 may be heard, defendants Stuart Carson, Paul Cosgrove, Hong Carson, and David
6 Edmonds will, and hereby do, move this Court to compel the government to
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1 gave to the law firm of Steptoe & Johnson (“Steptoe”) in August 2007
2 containing information relating to CCI’s commission payments and
3 CCI’s organizational structure;
4 Defendants’ personnel files from IMI/CCI;
5 Documents reflecting communications and/or agreements between
6 IMI/CCI and the government, including the U.S. Department of Justice,
7 the U.S. Attorney’s Office for the Central District of California, and the
8 Federal Bureau of Investigation;
9 Documents reflecting communications between IMI/CCI and
10 customers or third-party witnesses regarding the allegations in the
11 Indictment;
12 Documents relating to the internal investigation undertaken by CCI
13 customers, including, but not limited to, China National Offshore Oil
14 Corporation (“CNOOC”), Dongfang Electric (“Dongfang”), Guohua
15 Electric Power (“Guohua”) and the Chinese State-owned Assets
16 Supervision and Administration Commission (“SASAC”), into
17 allegations of bribery by CCI and/or its employees, including
18 communications between CCI and/or the government and CNOOC,
19 Dongfang, Guohua, SASAC and/or the Chinese government, and
20 communications between CCI and the government relating to the
21 alleged bribery of CNOOC, Dongfang, Guohua and/or other officials;
22 Notes and any written reports, memoranda or e-mail summaries of
23 Defendants’ statements made to Steptoe and/or Ernst & Young in
24 August 2007;
25 Discovery required by Brady v. Maryland, 373 U.S. 83 (1963) and
26 Giglio v. United States, 405 U.S. 150 (1972);
27 Statements of non-testifying alleged co-conspirators; and
28 Supplemental Bill of Particulars.
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4 Procedure, Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405
5 U.S. 150 (1972), all other applicable constitutional, statutory, and case authority,
6 and such evidence and argument as may be presented at the hearing of this motion.
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GIBSON, DUNN & CRUTCHER LLP
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By: S/Nicola T. Hanna_____________________
16 Nicola T. Hanna
17 Attorneys for Defendant STUART CARSON
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By: S/Kimberly A. Dunne_________________
21 Kimberly A. Dunne
22 Attorneys for Defendant HONG CARSON
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By: S/David W. Wiechert_________________
26 David W. Wiechert
27 Attorneys for Defendant DAVID EDMONDS
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8 Act (the “FCPA”) and the Travel Act. The Indictment also charges various
10 and five counts of substantive violations of the Travel Act. Additionally, the
12 § 1519.
13 As this Court is aware, the allegations in the Indictment are sweeping – both
14 in terms of the timeframe (and frequency) of the alleged wrongdoing, as well as in
16 occurred. According to the Indictment, over a nine-year period (between 1998 and
17 2007), Defendants allegedly “made and caused [CCI] employees and agents to
20 obtaining or retaining business for [CCI].” Indictment, ¶ 14. And the government
21 alleges that between 2003 and 2007, the Defendants bribed customers “in over
23 $6.85 million” to secure a series of projects that “resulted in net profits to [their
24 employer, CCI] of approximately $46.5 million.” Id. The government has also
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Case 8:09-cr-00077-JVS Document 101 Filed 09/04/09 Page 14 of 59
1 control valves for use in the nuclear, oil and gas, and power generation industries.1
2 CCI is a subsidiary of a British firm, IMI, plc (“IMI”). Exh. A. CCI is a large and
3 diverse enterprise, with thousands of customers across the globe. CCI presently
6 Defendants are former CCI executives, each of whom worked at CCI for a
7 substantial period of time. Stuart Carson was the Chief Executive Officer of CCI
9 Sales for China and Taiwan from 2000 to 2002 and then served as Director of
10 Sales for China and Taiwan from 2002 to 2007. Paul Cosgrove was CCI's
11 Executive Vice President from 2002 to 2007 and served as the head of CCI's
12 Worldwide Sales Department from 1992 to 2007. Id., ¶ 6. Dave Edmonds was
26
1
See CCI Website Profile attached as Exhibit A to the Declaration of
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Kenneth Miller (“Miller Declaration”).
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1 agency agreements, and forensic images of over 200 computer hard drives, which
10 government’s request, IMI and CCI also prepared extensive factual analyses and
12 improper expenses, which the government relied upon to tailor its investigation and
14 Incredibly, of the more than 5.5 million pages of relevant documents obtained
15 by IMI and CCI, Steptoe selected less than 1% – roughly 42,000 pages – to disclose
17 blame on Defendants while protecting IMI and CCI’s own interests. The
18 government apparently relied primarily on the 42,000 pages hand-picked by IMI and
19 CCI in tailoring its investigation and securing the Indictment against Defendants.
20 CCI’s Plea Agreement confirms that the government has control over the
21 entire scope of the 5.5 million pages of relevant documents in this case, thereby
23 the defense. But despite Defendants’ detailed requests for this discovery, and the
24 government’s control over and access to the documents Defendants seek, the
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26 2
See Memorandum on Behalf of Control Components, Inc. in Support of Rule
27 11(c)(1)(C) Plea and Agreed-Upon Sentence (“CCI Sentencing Memo”), p. 3, lns.
11-19; 23-26, attached as Exhibit B to the Miller Declaration.
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2 42,000 received from CCI and disclosed only oral descriptions of the purported
3 statements the Interviewed Defendants made to Steptoe and EY. The government
5 the government’s request and disclosed to the government – under the guise of the
6 attorney-client and attorney work product privileges asserted by CCI, and maintains
7 that it has otherwise complied with its discovery obligations to Defendants in this
11 exceeds the approximately 37,000 pages of discovery the government has produced
12 in this case. The government essentially outsourced its investigation to Steptoe and
14 it had the documents in its physical possession. The government should not be
15 permitted to use the fact that Steptoe conducted the investigation as a shield from
16 producing the documents Defendants seek, while it has the ability to use this
18 Given the cooperative relationship between CCI and the government, which is
19 both documented and mandated by contract in the CCI Plea Agreement, it is clear
20 that the government has control over the entire scope of material documents in this
21 case, and has the ability to access them with a simple request to CCI. To limit the
24 defendant such as CCI to steer the government’s investigation and craft the evidence
25 in a manner that furthers its own interests at the expense of others who are not privy
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1 Despite Defendants’ repeated requests for Brady material in April and June 2009,
3 Steptoe dated June 22, 2009, wherein CCI acknowledged “the possibility that some
5 customers or end users.” The government chose to produce Steptoe’s letter only
6 after Defendants learned through media reports that CCI had informed a Chinese
7 customer that it had no evidence of bribes being paid to its employees (despite a
8 DOJ press release and CCI’s representations to the Court in its Statement of Facts to
9 its Plea Agreement that said otherwise), and after Defendants specifically asked the
10 government for all information and documents related to the media report (and over
11 one month after the government assured Defendants that it had complied with its
15 defense.
18 issue in the Indictment, it is imperative that all discovery to which Defendants are
20 Brady material, in order to facilitate Defendants’ effective preparation for trial and
21 avoid any delays. Because the documents Defendants seek are material to the
22 defense and are within the government’s control, and because any applicable
24 the government simply has no basis for failing to produce the requested discovery to
26 defendants Stuart Carson, Rose Carson, Paul Cosgrove and David Edmonds move
27 the Court for an order compelling production of the items described herein.
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8 other physical objects in the government’s “possession, custody or control” that are
9 (i)“material to preparing the defense,” (ii) intended for use by the government as
12 government the unqualified right to demand from CCI the production of any non-
14 “possession, custody or control” of documents that are stored at IMI/CCI and its
15 agents and is obligated to produce them to the extent they are material to the
17 determinative, nor is actual possession necessary if the party has control of the
18 items. Control has been defined to include ‘the legal right to obtain the documents
19 requested upon demand.’ The term ‘control’ is broadly construed.” United States
20 v. Stein, 488 F. Supp. 2d 350, 361 (S.D.N.Y. 2007) (quoting MOORE’S FEDERAL
22 United States v. Int’l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d
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19 plea agreements and other communications, on the grounds that the government had
20 control over the requested documents based on the government’s legal right under
22 case from KPMG. 488 F. Supp. 2d at 357. KPMG resisted production, arguing that
23 the government did not have Rule 16 control over the documents that were not in its
24 physical possession – “whether or not the government may assert a claim to the
26
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See CCI Plea Agreement, ¶ 6 attached as Exhibit C to the Miller Declaration.
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1 also argued the Deferred Prosecution Agreement simply vested discretion in the
2 government to request documents from KPMG, leaving the court unable to compel
4 Rejecting KPMG’s first argument, the court held that Rule 16 speaks of
5 “possession, custody or control,” not simply “possession.” Id. “KPMG’s arguments
6 would read the words ‘custody or control’ out of the rule in flat contravention of the
7 principle that all words in a statute, rule or contract are to be given meaning
9 considered the question has held that ‘control’ under the federal rules of procedure
10 includes the legal right to obtain the documents in question.” Id. In rejecting
11 KPMG’s second argument, the court noted that Rule 16 requires that the
12 government produce all documents material to preparing the defense that are within
13 its possession, custody or control. Since the Deferred Prosecution Agreement gave
14 the government the legal right to obtain these documents subject to the limited
15 carve-out for privileged documents, the government had control over the documents
16 sought by defendants. Id. “Once control is established, the obligation exists.” Id.
20 request “is standard” and that the implications of holding that such language places
22 Rejecting this argument, the court noted that “[t]he plain language of Rule 16 makes
23 clear that documents material to the defense that are within the government’s control
24 are producible. That the government has begun making broad use of pre-indictment
25 cooperation agreements in recent years or that it might regard compliance with its
28 cooperation agreements, it need not insist upon them in future cases.” Id. at 364.
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1 The court concluded that the requested documents were in the possession,
2 custody or control of the government subject only to the carve-out for privileged
3 documents. Id. The court further held that because KPMG failed to establish that
4 any privilege applied to the documents, “all responsive documents are within the
6 documents that were in KPMG’s physical possession pursuant to Rule 16. Id.
7 Like Stein, CCI’s Plea Agreement reflects that the government has the legal
8 right to demand production by CCI of any of its non-privileged documents in
9 connection with the government’s case. The government’s 302 statement for IMI’s
10 in-house counsel, John O’Shea, underscores this point as O’Shea agreed to provide
11 material documents to Steptoe, rather than to the FBI.4 The documents Defendants
12 seek are plainly within the government’s control and the government is obligated to
13 produce them. See United States v. Kilroy, 523 F. Supp. 206 (E.D. Wis. 1981)
14 (holding that since the defendant’s former employer, Standard Oil, was cooperating
15 with the government and making available any records which Standard Oil had, the
16 records were within the government’s control under Rule 16). Accordingly,
17 Defendants respectfully request that the Court direct the government to produce the
22 2003) (citing United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)). The
24
25 4
See document bates numbered CCI_357, FBI 302 statement of John Joseph
26 Patrick O’Shea dated May 22, 2008, attached as Exhibit D to the Miller
Declaration (“O’Shea still maintained the training notes he used for the training
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and will provide those notes to Steptoe and Johnson.”).
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1 there is a strong indication that the evidence will play an important role in
4 United States v. Liquid Sugars, Inc., 158 F.R.D. 466, 471 (E.D. Cal. 1994)); United
5 States v. Lloyd, 992 F.2d 348, 350-51 (D.C. Cir. 1993). A defendant meets the
11 2007. Indictment, ¶ 14. CCI’s Electronic Database, comprised of over 5.5 million
12 pages of “relevant evidence” that EY gathered from IMI/CCI in connection with the
14 accounting records, agency agreements and forensic images of over 200 computer
15 hard drives” (Exh. B, p. 3, lns. 15-19), undoubtedly includes the specific documents
16 that Defendants have repeatedly requested from the government relating to each of
17 the 236 alleged improper payments referenced in the Indictment and identified in the
18 Bill of Particulars.
21 2000 to 2006 time period, expense reports and some of KPMG’s annual audit
22 documents for the same 2000 to 2006 time period, and agency agreements and
23 accounting records for only some of the 236 payments identified in the Bill of
25 documents relating to each of the alleged improper payments identified in the Bill
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1 relating to the projects and alleged improper payments, and the project files CCI
5 document bates numbered CR0833-0834 consists of an April 28, 2004 e-mail from
6 CCI employee Sara Peng to defendant Paul Cosgrove, with a “cc” to defendant
9 numbered 127 on the actual document) contains the same April 28, 2004 e-mail
10 from Sara Peng, but includes only three paragraphs of information, omitting three
15 the same page dated August 25, 2007, almost three and one-half years after the
16 initial e-mail was sent, and in or around the time that IMI/CCI commenced its
18 information in the header of the e-mail, leaving Defendants to guess at the actual
19 author of the e-mail without explanation for the three-year gap in response time.
20 The fact that some of the government’s discovery plainly includes altered
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22 5
For example, payment number 47 in the Bill of Particulars lists an alleged
23 payment of $7,612 to Fu Xiangwei. However, Defendants are unable to find any
documents in the discovery showing or discussing a payment of $7,612 for that
24 project, let alone to Fu Xiangwei.
6
25 See documents bates numbered CR0833-0834 and document number
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0000212 (bates numbered 127) attached as Exhibit E to the Miller Declaration.
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See document bates numbered CS2002 attached as Exhibit F to the Miller
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Declaration.
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4 Because each of the key documents material to the alleged improper payments and
6 Database, Defendants are entitled to CCI’s Electronic Database under Rule 16.
7 Emails: E-mails relating to the 236 payments will likely specify the
8 individuals who negotiated and participated in the calculation and approval of the
9 payment of commissions under the project contracts. Further, e-mails to and from
13 vehicle created for paying bribes, and knowledge concerning the identity of the third
15 Defendants received and the number of projects they were working on at the time of
17 understanding and state of mind with respect to the transactions at issue in this case.
18 Project Files: CCI kept files for each of its projects. The project files
19 relating to each of the 236 alleged improper payments, as well as documents relating
20 to the travel and entertainment referenced in the Indictment, are material to the
21 defense because they are vital in uncovering admissible evidence concerning the
22 facts at issue in the Indictment. The project files contain information concerning the
23 persons involved in the procurement of each of the contracts relating to the alleged
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26 8
To the extent the Database does not contain all of Defendants’ e-mails
27 covering the time period alleged in the Indictment, Defendants seek these e-mails
for the reasons stated herein.
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1 hand, and customer employees and third party agents on the other, regarding
3 Further, the project files will likely uncover information relating to the
4 amount of commissions to be paid under the contracts and the intended recipients of
5 the commissions, as well as the nature and extent of the third-party agents’
8 concerning the circumstances and persons involved in the alleged improper travel
10 the same.
13 payments were made, are necessary to establish the terms and conditions under
14 which representatives and consultants were paid under the contracts and to
16 uncover evidence as to what payments were actually made, and will presumably
17 reveal the identity of the recipients and, importantly, whether the recipient of each
19 company.
23 and use of FICs and knowledge concerning the identity of third parties receiving
25 information central to each of the facts at issue concerning the alleged corrupt
27 testimony, and aiding in preparation for trial. Lloyd, 992 F.2d at 351.
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2 culpability in this case with respect to the 236 payments referenced in the
26 served as the basis for the charges against Defendants as it recites almost verbatim
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1 made in approximately 236 payments in over thirty countries and resulted in net
2 profits to [CCI] of approximately $46.5 million from the sales related to those
4 particularly those relating to the 236 payments Steptoe identified for the government
5 that are now referenced in the Indictment, will undoubtedly uncover admissible
7 entitled to this discovery under Rule 16(a)(1)(E), and the government should be
20 they are material to the defense and any privileges attaching to these documents
21 have been waived. These documents include analyses and charts of potentially
22 improper payments, analyses and charts of allegedly improper meals, travel and
23 entertainment expenses, and an analysis of IMI’s and CCI’s profits from 2003-
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25 9
To the extent CCI’s Electronic Database does not contain the documents
26 identified herein relating to each of the alleged improper payments, including those
from CCI’s foreign offices, Defendants respectfully request these documents as
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well for the reasons stated herein.
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1 2007.10
2 These documents are patently material to the defense because they relate
3 precisely to the facts at issue in the Indictment concerning alleged improper
20 improper payments and expenses that now form the basis of the Indictment,
21 Defendants are entitled to these documents under Rule 16(a)(1)(E) because they
26
27 10
See CCI Privilege Log attached as Exhibit G to the Miller Declaration.
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1 documents. The privilege log indicates that CCI asserts the attorney-client privilege
2 as to seven of the eight documents, and CCI asserts the attorney work product
8 F.R.D. at 493 (citing In re Grand Jury Invest., 974 F.2d 1068, 1071 (9th Cir. 1992)).
9 Communications between a client and attorney made for the purpose of relaying
10 communications to a third party are not confidential and not protected by the
18 The defendants argued that the attorney-client privilege did not apply to the
19 documents sought and that they were entitled to them under Rule 16 and Brady
20 because, inter alia, the materials at issue were prepared for the government to obtain
21 leniency and not for the purpose of assisting in providing legal advice, and the
22 company waived any claim of privilege by voluntarily producing the materials to the
24 In analyzing the privilege issues, the district court noted that it was
25 undisputed that McKesson retained Skadden to gather relevant facts and to develop
27 result of the accounting regularities, and that prior to preparation of the documents,
28 Skadden, acting on behalf of the company, had agreed to turn them over to the SEC
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2 493. Although the confidentiality agreements stated that (i) the documents were
3 created “solely for the purposes of providing legal advice to the Company and the
5 doctrine and attorney-client privilege,” and (iii) the company “did not want to or
7 agreements made “clear that prior to preparation of the Report and Back-up
8 Materials, the Company agreed to disclose the documents to the Government.” Id.
11 furtherance of [either entities’] discharge of its duties and responsibilities,” and the
13 the [USAO] deems appropriate, and in any criminal prosecution that may result
14 from the [USAO’s] investigation.” Id. at 494. For these reasons, the district court
16 remain confidential. Id. at 493-94. The court concluded that because Skadden made
17 the investigation report and back-up materials with the intent to relay them to the
18 government, the attorney-client privilege did not apply. Id. at 493-94. “It is
19 difficult for the Court to imagine how the communication between the company and
21 Skadden prepared the Report and Back-up Material after the company agreed to
22 disclose the same to the Government.” Id. at 494 n.7. As the court noted, “[s]uch a
23 disclosure conflicts with the underlying rationale behind the privilege, namely that
24 the privilege encourages frank discussions between an attorney and his client.” Id.
27 the intent to relay them to the government. Thus, to the extent that the “extensive
28 factual analysis and summary of the improper payments at issue” and “similar
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2 ‘training trips’” identified in CCI’s Sentencing Memorandum are the seven of eight
4 attorney-client privilege does not apply because the documents were admittedly
5 made “for the purpose of relaying the communication to a third party,” indeed, the
10 documents related to the same subject matter) as a result of its disclosure of the
11 documents to the government. See Bergonzi, 216 F.R.D. at 494 n.8, 497-98
13 privilege was waived as a result of, inter alia, the corporation’s disclosure of the
15 1179, 1185 (10th Cir. 2006) (“[T]he attorney-client privilege is lost if the client
17 (citation omitted); In re Syncor Erisa Litig., 229 F.R.D. 636, 645 (C.D. Cal. 2005)
20 these documents under Rule 16(a)(1)(E), and the government should be compelled
21 to produce them.
26 made to a third party and that disclosure enables an adversary to access the
27 information. See In re Syncor Erisa Litig., 229 F.R.D. at 645 (citing Bergonzi, 216
28
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1 F.R.D. at 497); United States v. Mass. Inst. Of Tech., 129 F.3d 681, 687 (1st Cir.
2 1997).
3 In Bergonzi, for example, the court found that the documents prepared by
4 Skadden were protected from disclosure by the work product doctrine but concluded
5 that work product protection was waived as a result of, inter alia, the company’s
7 party has disclosed work product to one adversary, it waives work product
8 protection as to all other adversaries.” Id. at 498. Because McKesson disclosed the
10 waiver of the attorney work product doctrine, and any work product protection
12 As the court reasoned, “[i]n the final analysis, the ability to prepare one’s case
13 in confidence, which is the chief reason articulated in Hickman for the work product
14 protections, has little to do with talking to the Government.” Id. at 497 (citing In re
15 Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 306-07
16 (6th Cir. 2002)); see also United States v. Thompson, 562 F.3d 387, 394 (D.C.Cir.
17 2009) (“[D]isclosure of work product materials can waive the privilege for those
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8 waiver of the attorney work product privilege, and any work product protection
9 claimed against production to the Defendants was also waived. Bergonzi, 216
10 F.R.D. at 498.
11 CCI’s waiver also applies to the materials underlying the analyses and charts
12 identified in the privilege log, and the government should be required to produce
13 those documents as well. See In re Leslie Fay, Inc. Sec. Litig., 161 F.R.D. 274, 281
14 (S.D.N.Y. 1995) (holding that waiver of attorney work product and attorney-client
17 F.R.D. 579 (N.D. Ohio 2005) (holding that disclosure of presentation materials to
20 Defendants are entitled to these documents under Rule 16(a)(1)(E), and the
22
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24
25
11
26 Defendants have asked the government about the provisions of the non-
waiver agreement referenced in CCI’s Sentencing Memo, but the government has
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failed to provide this information.
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25
26
12
See documents bates numbered CHART0345, CHART 1203 – 1206, and
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CHART 1207 attached as Exhibit H to the Miller Declaration.
28
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3 their entirety, rather than portions or incomplete e-mail strings for which context
4 and key information is lacking, in order to make meaningful use of the information
5 and adequately prepare for trial. Accordingly, Defendants respectfully request that
6 the Court direct the government to produce the missing pages of discovery identified
14 documents are material to the defense. The 2007 Investigation Materials identify
15 the basis for Steptoe’s determinations concerning Defendants’ culpability and will
18 providing context and insight to these transactions and the FICs at issue, largely
24 strengthen defenses and provide a basis for impeaching the government’s theories
25 regarding Defendants’ culpability. See Bergonzi, 216 F.R.D. at 502 n.17 (noting
27 “may shed light on the issue of relative culpability of third parties and provide a
28 basis for impeaching the Government’s theories of culpability with respect to these
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1 defendants”).
2 To the extent the 2007 Investigation Materials include Steptoe’s, EY’s or any
3 other investigator’s interview memoranda or underlying notes of the 125 CCI
4 employee interviews, Defendants are entitled to this information under Rule 16.
5 The interview memoranda reflect statements by CCI employees and third parties
7 payments that now form the basis of the charges against Defendants. The interview
8 memoranda likely provide facts concerning the alleged improper payments and, as
10 concerning the facts at issue in the Indictment. For example, the 302 statement of
11 cooperating witness Mario Covino states that during his first interview with Steptoe
12 attorneys, he “did not tell the Steptoe attorneys all that he knew [and] attempted to
13 explain the emails as being benign.”13 To the extent Covino’s statements to Steptoe
15 regarding the nature of the transactions at issue in this case, such information is
21 v. Nicholas, 606 F. Supp. 2d 1109, 1116, 1121 (C.D Cal. 2009) (suppressing all
24 Upjohn warnings). Unless the government demonstrates that the interviewees are
25
26
13
See document bates numbered CCI_226, FBI 302 statement of Mario
27
Covino dated February 25, 2008, attached as Exhibit I to the Miller Declaration.
28
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3 discoverable under Rule 16 and should be produced. See Bergonzi, 216 F.R.D. at
4 500 (holding that interview memoranda are not covered by Jencks Act and are
6 were prospective or actual witnesses who created the memoranda or, at least,
10 focusing the investigation on certain payments and providing facts and evidence
17 alleges a conspiracy to violate the FCPA and Travel Act dating back to 1998 and
18 charges substantive violations of the FCPA in Counts 2 through 4, and the Travel
21 While the government has produced some documents relating to the 2004
22 Audit, such as consulting agreements, e-mails, correspondence, and minutes of IMI
23 board meetings, there are certain documents referenced in this discovery that do not
25 document bates numbered IMI0001 states that “[a] report on the issues arising in
26 relation to the US audit and action taken in response would be made to the [Audit]
27
28
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Case 8:09-cr-00077-JVS Document 101 Filed 09/04/09 Page 38 of 59
2 the government has produced to date. As some documents relating to the 2004
3 Audit appear to be missing from the government’s production, Defendants seek all
5 reports and underlying materials, because these documents are material to the
6 defense.
7 The 2004 Audit specifically looked into the alleged improper payment of
8 commissions and expenses by CCI employees in countries including China and
9 Korea, which presumably included payments relating to the contracts now identified
10 in the Indictment, and at least 53 payments identified in the Bill of Particulars for
11 contracts involving China and Korea in 2004. As such, this information is patently
13 identify witnesses that are germane to the charges in the Indictment and at least 53
16 documents will strengthen defenses and provide a basis for impeaching the
21 Audit (Indictment, ¶ 24), defendants Rose Carson and Edmonds provided false
22 information to internal auditors during the 2004 Audit (id., ¶ 25), and defendant
24 certain commission payments. Id., ¶ 26. The 2004 Audit documents also bear
25
14
26 See document bates numbered IMI0001 attached as Exhibit J to the Miller
Declaration.
27 15
See Bill of Particulars attached as Exhibit K to the Miller Declaration.
28
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Case 8:09-cr-00077-JVS Document 101 Filed 09/04/09 Page 39 of 59
2 CCI employees to withhold information from auditors during the 2004 Audit.16 The
4 these allegations, will corroborate testimony, and will aid in Defendants’ preparation
5 for trial. See United States v. Marshall, 132 F.3d 63, 67 (D.C. Cir. 1998) (holding
12 Defendants because such documents are material to the defense. To the extent
13 documents exist relating to such Inquiries - other than the 2007 Investigation and
16 employed at CCI and, specifically, likely contain information demonstrating that the
24 Indictment because they are material to the defense. FCPA and Travel Act training
26
16
27 See Statement of Facts ¶ 20, attached as Exhibit 1 to CCI Plea Agreement,
attached as Exhibit C to the Miller Declaration.
28
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2 Defendants and that Defendants lacked the requisite scienter to commit FCPA and
3 Travel Act offenses. Accordingly, Defendants are entitled to this discovery under
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2 allegations of the alleged misconduct and will strengthen defenses. To the extent
24
17
See Transcript of July 31, 2009 CCI Change of Plea and Sentencing
25
Hearing at 24, attached as Exhibit L to the Miller Declaration (“There is an
26 agreement between the department and CCI’s parent company, IMI. I’m not sure
that I would consider that a joint agreement, but it has been part of our
27
discussion.”).
28
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Case 8:09-cr-00077-JVS Document 101 Filed 09/04/09 Page 42 of 59
2 government alleges that Defendants did the acts complained of in the Indictment for
6 employed.
9 relating to what CCI was willing to admit to and what the government
10 unsuccessfully sought from CCI. As such, this information will play an important
13 60 (holding that correspondence between KPMG and the government, including (i)
14 statements made during plea negotiations, (ii) KPMG’s internal memoranda relating
15 to meeting and telephone conversations with the government, and (iii) drafts of the
17 discoverable under Rule 16 because such information would play an important role
19 Moreover, to the extent these documents reflect CCI’s cooperation with the
20 government’s investigation, or reflect the government’s consideration of CCI’s
23 defense that CCI shifted blame on Defendants and sought to use Defendants as
24 scapegoats while protecting its own interests. See United States v. Pollard, 856 F.2d
25 619, 622 (4th Cir. 1988) (holding that defendant’s Rule 17 subpoena for his
27 value to defendant’s defense that employer made him a scapegoat while protecting
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Case 8:09-cr-00077-JVS Document 101 Filed 09/04/09 Page 43 of 59
4 effort to obtain leniency from the government and mitigate its liability, has
5 interfered with Defendants’ due process rights of access to witnesses. See United
6 States v. Black, 767 F.2d 1334, 1338 (9th Cir. 1985) (analyzing whether government
7 interfered with defendant’s due process rights and holding that absent compelling
8 justification, the government may not interfere with defense access to witnesses).
9 Accordingly, Defendants are entitled to this information under Rule 16(a)(1)(E), and
15 they are material to the defense. These documents likely reflect statements from
17 connection with CCI projects. Additionally, these documents will likely provide
18 details concerning the circumstances under which the projects at issue were awarded
19 to CCI and under which they received entertainment and/or gifts and the individuals
20 involved.
23 (“Guohua”) denied that they were involved with any bribes from CCI.18 The
24 Indictment alleges that defendants Rose Carson and Cosgrove engaged in corrupt
25 dealings with officials at Guohua Power and charges them with making an alleged
26
27 18
See China.Org.CN article attached as Exhibit M to the Miller Declaration.
28
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Case 8:09-cr-00077-JVS Document 101 Filed 09/04/09 Page 44 of 59
1 improper payment to a Guohua official in Count 9 (Indictment, ¶ 31, Overt Acts 41-
2 43, ¶ 33), and the Bill of Particulars identifies one alleged improper payment to
3 China Resources Power (Exh. K, payment 82) and five others to Datang Power.
8 allegations in the Indictment are potentially exculpatory and patently material as this
10 in the Indictment and will strengthen defenses and aid in Defendants’ trial
17 bribery scheme, denied that any of its employees were involved with alleged bribery
18 by CCI.19 Specifically, the article states that a “CNOOC official . . . said no one
19 inside the company has been found to have accepted bribery from [CCI] or its sales
22 communication of June 22 that the “payments involved had been wired to personal
23 accounts of CCI staff or friends and relatives of CCI staff. . . . There is no evidence
24 indicating that [bribes] paid by [] CCI had landed in [the] hands of CNOOC staff.”
25
26
19
See Xinhua General News Service Report attached as Exhibit N to the
27
Miller Declaration.
28
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Case 8:09-cr-00077-JVS Document 101 Filed 09/04/09 Page 45 of 59
1 Id. The article further states that “CCI has informed the DOJ of the above
2 assertions.” Id.
5 bribery case after internal investigations[,]” and the Global Times reported on
6 August 30, 2009, that although an investigation conducted by the Chinese State-
9 from CCI, “the amount was far less than previously alleged by US authorities.”20
10 According to the Global Times article, the “SASAC investigation showed that
11 CNPC subsidiaries “accepted bribes of less than 10,000 yuan ($1,464) from CCI,
12 instead of the 1.66 million yuan alleged by the US Justice Department.” Exh. O.
17 CCI and/or the government on the one hand, and CNOOC and/or the Chinese
18 government on the other hand, relating to the bribery allegations; the “June 22”
20 News Services article, including the “request from [CNOOC to CCI] for a joint
21 investigation;” and all communications between CCI and the government relating to
24
25
26
20
See ShanghaiDaily.com and Global Times articles attached as Exhibit O to
27
the Miller Declaration.
28
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Case 8:09-cr-00077-JVS Document 101 Filed 09/04/09 Page 46 of 59
1 The Indictment alleges Defendants Stuart Carson, Rose Carson, and Paul
2 Cosgrove engaged in corrupt dealings with CNOOC officials between 2003 and
3 2005, and charges them with making an alleged improper payment to a CNOOC
4 official in Count 6. Indictment, ¶ 31, Overt Act Nos. 27-32, ¶ 33. CNOOC’s
5 assertions run directly counter to these allegations in the Indictment concerning the
9 in the Indictment and will aid in Defendants’ trial preparation. As with the CNOOC
10 investigation, Defendants are entitled to any such information relating to any other
17 expansively to any statements that are or could be relevant. As the Ninth Circuit has
18 explained:
19 Rule 16(a)(1)(A) can fully serve its intended purpose only if the
20 Government takes a broad view of what is relevant for purposes of
21 that provision. We believe the Government should disclose any
22 statement made by the defendant that may be relevant to any possible
23 defense or contention that the defendant might assert. Ordinarily, a
24 statement made by the defendant during the course of the
25 investigation of the crime charged should be presumed to be subject to
26 disclosure, unless it is clear that the statement cannot be relevant.
27 Where the Government is in doubt, the written or recorded statement
28 should be disclosed, if a proper request is made.
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1 United States v. Bailleaux, 685 F.2d 1105, 1114 (9th Cir. 1982) (modified on other
5 Poindexter, 727 F. Supp. 1470, 1483 (D.D.C. 1989); United States v. Layton, 564 F.
6 Supp. 1391, 1395-96 (D. Or. 1983), as well as any other memorializations of the
7 defendant’s oral statements. See United States v. Johnson, 525 F.2d 999, 1004 (2d
8 Cir. 1975) (verbatim statements and summaries of conversations recorded after the
9 fact are discoverable); see also United States v. Morrison, 43 F.R.D. 516, 519 (N.D.
10 Ill. 1967) (noting that any narrower definition of “statement” would encourage
12 The Indictment alleges that Defendants Rose Carson, Cosgrove and Edmonds
13 provided false and misleading information to CCI’s attorneys in connection with
16 investigation of alleged improper payments and expenses and took notes of the
20 entitled to the entirety – not just an oral description – of all relevant oral, written, or
21 recorded statements they made, including the notes and reports of the statements
27 assert concerning their involvement and relative culpability in this case. To the
28 extent that the government calls a witness to testify about these statements, it seems
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Case 8:09-cr-00077-JVS Document 101 Filed 09/04/09 Page 48 of 59
1 obvious that the witness will have to review such notes or summaries to refresh him
2 or her about the details years after the interviews took place.
3 Further, the notes and any written reports of Defendants’ statements are
4 relevant to whether Steptoe and/or EY were acting as investigators for the
8 interviews. See Nicholas, 606 F. Supp. at 1116, 1121 (suppressing all evidence
11 warnings); Beckwith v. United States, 425 U.S. 341, 347-48 (1976) (noting that
12 proof that some kind of warnings were given or that none were given would be
13 relevant evidence on the issue of whether the questioning was in fact coercive);
14 Garrity v. New Jersey, 385 U.S. 493, 500 (1967) (holding that the protection of the
17 removal from office). Accordingly, the court should compel the government to
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Case 8:09-cr-00077-JVS Document 101 Filed 09/04/09 Page 49 of 59
1 Government while suppression could very well prejudice the defendant.” Id. at
2 1128; see also United States v. Agurs, 427 U.S. 97, 108 (1976).
3 Under Brady, the government must disclose to the defendants all “favorable”
4 evidence that is “material either to guilt or to punishment.” Brady, 373 U.S. at 87.
17 Acosta, 357 F. Supp. 2d 1228, 1239-40 (D. Nev. 2005), citing United States v.
18 Sudikoff, 36 F. Supp. 2d 1196 (C.D. Cal. 1999)). This includes evidence that
19 corroborates the defendant’s theory of the case, see United States v. Hibler, 463
20 F.2d 455, 460 (9th Cir. 1972) (reversing conviction for government’s failure to
21 disclose evidence that corroborated defendant’s story), as well as evidence that casts
22 blame on a codefendant, victim, or other party. Brady, 373 U.S. at 83; Miller, 529
23 F.2d at 1127-28.
27 counsel for the defendant.” Despite Defendants’ repeated requests for Brady
28 material, and the Court’s Order directing forthwith disclosure, the government has
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1 withheld certain exculpatory information in this case and has instead produced it
2 only after Defendants have learned of and specifically identified the exculpatory
4 For example, even though each of Defendants made several written requests
5 in June 2009 for immediate disclosure of Brady material, the government initially
6 failed to produce Steptoe’s June 22, 2009 letter addressed to the government that
7 raised “the possibility that some or all of the funds in question were . . . not passed
11 stating that the government had complied with its discovery obligations. The
12 government finally produced Steptoe’s letter two months after Defendants’ requests,
13 on August 28, 2009, in response to defendant Stuart Carson’s renewed request for
14 Brady material and specific request for documents relating to the CNOOC internal
16 demonstrates that the government is sitting on Brady material despite the Court’s
17 mandate that it produce this information forthwith, and suggests that additional
18 Brady material may exist which the government has yet to produce.
19 Specific exculpatory evidence that may exist to which Defendants are entitled
20 here includes (i) the 2007 Investigation Materials, (ii) correspondence between
21 IMI/CCI and the government, customers, and/or third-party witnesses in which the
23 the allegations in the Indictment, (iii) the 2004 Audit documents; (iv) documents
25
26
21
See June 22, 2009 letter from Steptoe & Johnson to Department of Justice
27
Trial Attorney, Andrew Gentin, attached as Exhibit P to the Miller Declaration.
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Case 8:09-cr-00077-JVS Document 101 Filed 09/04/09 Page 51 of 59
1 by Defendants; and (v) any witness statements that fail to identify any of the four
3 To the extent that the 2007 Investigation Materials, including Steptoe’s interview
5 company’s actions and the policies or practices under review or contain denials by
6 CCI employees concerning the facts at issue in the Indictment, these materials are
7 discoverable under Brady as they are likely to contain exculpatory information that
12 Audit documents must also be produced because, as noted above, the 2004 Audit
13 apparently determined that improper payments were not being made. Thus,
14 documents relating to the 2004 Audit are exculpatory and clearly discoverable under
15 Brady.
16 Further, to the extent documents relating to any IMI/CCI inquiries, other than
17 the 2007 Investigation and 2004 Audit, contain information exonerating Defendants
18 from alleged misconduct, these documents also are discoverable under Brady.
19 Similarly, any witness statements that fail to identify any of the four Defendants as
20 having been involved in the transactions or facts at issue in the Indictment, such as
21 omitting any of the four Defendants as having been involved with the arranging
24 Defendants are further entitled to the identities and statements of all persons
25 with knowledge of the events described in the Indictment whom the government
26 does not intend to call at trial. If the government is aware of persons who have
27 knowledge of the acts that it alleges as the basis for this prosecution, and if the
28 accounts given by those persons tend to exculpate the Defendants in any way, the
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1 government must divulge that information. See United States v. Cadet, 727 F.2d
2 1453, 1469 (9th Cir. 1984) (holding that no legitimate governmental interest had
5 disclosure of such witnesses). Thus, to the extent that any of the more than 125
11 1967); LaMere v. Risley, 827 F.2d 622, 625 (9th Cir. 1987) (due process requires
13 defendants to make effective use of that material”); see also United States v. Zuno-
14 Arce, 44 F.3d 1420, 1427 (9th Cir. 1995) (“If the prosecution delayed turning over
15 the exculpatory report until the defense could no longer make practical use of it, that
16 is close, in practical effect, to not turning it over at all.”). To assist the defense to
17 prepare effectively for trial and avoid continuances at the time of trial, the Court
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1 (1959). Defendants thus seek all evidence that may impeach the credibility of the
5 cooperating witnesses’ computer hard drives and personnel files. The Indictment
6 alleges that Defendants and other CCI employees made false statements to auditors
7 in connection with the 2007 Internal Investigation and the 2004 Audit. Indictment,
9 witnesses Mario Covino and Richard Morlok state that they provided false and
10 misleading information concerning the improper payments during the 2004 Audit.22
11 Thus, to the extent the 2007 Investigation Materials or the 2004 Audit reflect false
12 statements by government witnesses, these items are Giglio material and must be
14 also be produced as they likely contain information which contradicts the witnesses’
18 current attestations of impropriety, and may include poor reviews that could create
22 Hamric, 386 F.2d at 393. “[I]n order to assist the defendants in their trial
23 preparation,” disclosure should occur “as soon as the government [is] made aware of
24 the defendant’s request” for impeachment materials. Cadet, 727 F.2d at 1467. If
25
26 22
See Covino Plea Agreement, Exhibit A, ¶ 8; Morlok Plea Agreement,
27 Exhibit A, ¶ 7 attached as Exhibits Q and R, respectively, to the Miller
Declaration.
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1 the government has a question about the discoverability of any item, that item
6 Defendants.
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2 witnesses or with an accused” so that courts can “determin[e] what evidence must
3 be produced pursuant to the Jencks Act or other applicable law”). Additionally, the
5 Fed. R. Crim. P. 16(c); Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987); Agurs, 427
6 U.S. at 106. As such, Defendants respectfully request that the Court direct the
9 F. The Court Should Direct the Government to Comply with the Court’s
Order Regarding the Bill of Particulars
10
The Court’s May 18, 2009 order directed the government to provide a bill of
11
particulars for each of the 236 alleged unlawful payments referenced in the
12
Indictment specifying the date of the payment, the amount of the payment, and the
13
name of the recipient and business affiliation of the recipient, or if the recipient is an
14
intermediary, the business affiliation of the individual who was intended to benefit
15
from the payment. For many of the payments, however, the government’s Bill of
16
Particulars is deficient: (1) it fails to specify the date of the payment, instead listing
17
only the year or range of years in which the payment allegedly was made; (2) it
18
provides only an “approximate amount” as to each of the payments; and (3) it fails
19
to identify the name and business affiliation of the recipient who received the
20
payment (see Exh. K, Payment 27 listing payment made “on or about date” as
21
“2004,” for “approximate amount” of $10,000,” to “Fujian Pacific FIC(s).”)23
22
As a result of these deficiencies, Defendants are often having difficulty
23
identifying the precise payment to which the government is referring, and have
24
25
23
26 The payments for which the Bill of Particulars is deficient are: 1, 2, 5, 8-12,
20-28, 31, 35-36, 39, 43, 48-49, 51, 55, 61-62, 64-69, 72-73, 83, 86-91, 93, 96-101,
27 107-09, 114-15, 117-20, 123-31,137-43, 153, 159, 161, 164, 166-77, 179-80, 182,
184-85, 190, 194-99, 204-06, 209-10, 212, 214-16, 218, 220, 225, 234-36.
28
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1 been left to guess the identity of the recipient and/or beneficiary the government
4 does not provide the framework for Defendants to mesh the discovery with the
5 Indictment. As the Court noted in its order, “the discovery produced to date leaves
6 [Defendants] to guess which transactions and events will form the Government’s
7 bribery case.” For many of the 236 payments alleged in the Indictment, the Bill of
9 adequately prepare for trial. Accordingly, for those payments for which the
10 government failed to identify the precise date, amount, and recipient of the
11 payment, Defendants respectfully request that, consistent with the Court’s prior
12 order, the Court order the government to supplement its Bill of Particulars with this
13 information.
14 IV. CONCLUSION
15 For the reasons stated, Defendants respectfully request that the Court grant
16 their Motion to Compel Discovery and enter the attached proposed order compelling
17 the government to produce all requested items that remain undisclosed at the time of
18 the hearing on this motion within 30 days of the Court’s order, and Brady and Giglio
20
27
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6
SIDLEY AUSTIN LLP
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LAW OFFICES OF DAVID W. WIECHERT
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1 CERTIFICATE OF SERVICE
2 I, Janine Philips, declare,
3
That I am a citizen of the United States and am a resident or employed in
4 Orange County, California; that my business address is 115 Avenida Miramar, San
Clemente, California 92672; that I am over the age of 18 and not a party to the
5 above-entitled action.
6 That I am employed by a member of the United States District Court for the
Central District of California and at whose direction I caused service of:
7 DEFENDANTS’ JOINT NOTICE OF MOTION AND MOTION TO COMPEL
DISCOVERY; [PROPOSED] ORDER on the interested parties as follows:
8
X_ BY ELECTRONIC MAIL: by electronically filing the foregoing with the
9 Clerk of the District Court using its ECF System pursuant to the Electronic Case
Filing provision of the United States District Court General Order and the E-
10 Government Act of 2002, which electronically notifies said parties in this case:
11
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3 S/Janine Philips_____
Janine Philips
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