Earlier this week, lawyers for John Joseph O'Shea filed a replly brief (here) in the "foreign official" challenge pending in the Southern District of Texas. The "foreign officials" at issue in the O'Shea matter are alleged to be officials of Comision Federal de Electricidad ("CFE"), a Mexican utility, the same entity at issue in the Lindsey matter currently in trial in the Central District of California. See here for the prior post.
O'Shea's argument begins as follows.
"The Government Relies on 'Prosecutorial Common Law' and Rulings from Cases That Did Not Consider or Inadequately Considered the Meaning of Foreign Official."
The reply brief then states as follows. "As long as FCPA defendants - both individuals and corporations - enter into non-prosecution agreements, deferred prosecution agreements, and plea agreements, the government will continue to build its arsenal of 'prosecutorial common law' to supports its aggressive and slanted interpretation of the FCPA. Yet court acceptance of plea agreements does not convert the government's pronunciations on the law into sources of legal authority. Indeed, the government's strategy of creating its own would-be common law threatens to strip the federal courts of their judicial power to interpret the FCPA."
See here for the prior post on O'Shea's motion to dismiss.
See here for the prior post on the DOJ's response brief.
Along with the reply brief, O'Shea's lawyers also filed (here) a motion to strike the Declaration of Clifton Johnson ((Assistant Legal Adviser for Law Enforcement and Intelligence in the Legal Adviser's Office of the United States Department of State). Johnson's declaration was ordered stricken in the Lindsey challenge (see here) and was also filed earlier this week in the Carson "foreign official" challenge pending in the Central District of California. (See here).