Case 2:10-cr-01031-AHM Document 303 Filed 03/21/11 Page 1 of 9 Page ID #:6563

1 JANET I. LEVINE (STATE BAR NO. 94255)

MARTINIQUE E. BUSINO (STATE BAR NO. 270795)
2 Crowell & Moring LLP
515 South Flower Street, 40th Floor
3 Los Angeles, California 90071-2258
Phone: (213) 622-4750
4 Fax: (213) 622-2690
EMAIL: jlevine@crowell.com
5 EMAIL: mbusino@crowell.com
6 Attorneys for Defendant
Steve K. Lee
7
JAN L. HANDZLIK (STATE BAR NO. 47959)
8 GREENBERG TRAURIG LLP
2450 Colorado Avenue, Suite 400 East
9 Santa Monica, Ca 90404
Phone: (310) 586-6542
10 Fax: (310) 586-0542
EMAIL: handzlikj@gtlaw.com
11
Attorneys for Defendants Lindsey Manufacturing
12 Company and Keith E. Lindsey
13
UNITED STATES DISTRICT COURT
14
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
15

16 UNITED STATES OF AMERICA, ) CASE NO. CR 10-1031(A)-AHM

)
17 EX PARTE APPLICATION FOR AN
Plaintiff, ) ORDER TO STRIKE THE
18 ) SUPPLEMENT TO THE
v. ) GOVERNMENT’S OPPOSITION
19 TO THE DEFENDANTS’ MOTION
) TO DISMISS THE FIRST
20 ENRIQUE FAUSTINO AGUILAR ) SUPERSEDING INDICTMENT
NORIEGA, ANGELA MARIA ) AND THE DECLARATION OF
21 GOMEZ AGUILAR, LINDSEY CLIFTON M. JOHNSON, OR, IN
MANUFACTURING COMPANY, ) THE ALTERNATIVE, FOR AN
22 KEITH E. LINDSEY, and ) ORDER REQUIRING THAT MR.
STEVE K. LEE, ) JOHNSON APPEAR AT THE
23 HEARING ON DEFENDANTS’
Defendants. ) MOTION; EXHIBIT; [PROPOSED]
24 ) ORDER (UNDER SEPARATE
) COVER)
25
)
26 )
27
28

EX PARTE APPLICATION TO STRIKE SUPPLEMENT

Case 2:10-cr-01031-AHM Document 303 Filed 03/21/11 Page 2 of 9 Page ID #:6564

1 Defendants Lindsey Manufacturing Company, Keith E. Lindsey, and Steve

2 K. Lee (collectively “defendants”), by their counsel of record, hereby apply Ex
3 Parte to Strike the Supplement to the Government’s Opposition to the Defendants’
4 Motion to Dismiss the First Superseding Indictment and the Declaration of Clifton
5 M. Johnson. In the alternative, defendants apply for an order requiring that Mr.
6 Johnson appear at the Hearing on Defendants’ Motion. Government counsel has
7 informed counsel for Mr. Lee that the government will not voluntarily produce Mr.
8 Johnson at this hearing. This application is based on the attached Memorandum of
9 Points and Authorities, Exhibit, all files and records in this case, and all matter that
10 may be later adduced.
11 The government has been advised of this application and relief sought, and
12 does not oppose the ex parte nature of the application, but does oppose the relief
13 sought.
14

15 DATED: March 21, 2011 Respectfully submitted,

16
JANET I. LEVINE
17 CROWELL & MORING LLP
18
_/s/ Janet I. Levine __________________
19 By: JANET I. LEVINE
20 Attorneys for Defendant
Steve K. Lee
21

22 DATED: March 21, 2011 Respectfully submitted,

23 JAN L. HANDZLIK
24 GREENBERG TRAURIG LLP

25 __/s/ Jan L. Handzlik___________________

26 By: JAN L. HANDZLIK
Attorneys for Defendants
27 Lindsey Manufacturing Company and
28 Keith E. Lindsey

EX PARTE APPLICATION TO STRIKE SUPPLEMENT

1
Case 2:10-cr-01031-AHM Document 303 Filed 03/21/11 Page 3 of 9 Page ID #:6565

1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION
3 On March 18, 2011, without leave of the Court, the government improperly
4 filed what amounts to a sur-reply to Defendants’ Motion to Dismiss the First
5 Superseding Indictment. See Supplement to the Government’s Opposition to the
6 Defendant’s Motion to Dismiss the First Superseding Indictment; Declaration of
7 Clifton M. Johnson (Docket No. 296) (“Supplement and Declaration”); see also
8 Defendants’ Notice of Motion and Motion to Dismiss the First Superseding
9 Indictment (Docket No. 220) (“Def. Mot.”). The government’s Supplement and
10 Declaration fail to satisfy local and federal rules limiting the submission of sur-
11 replies. They also proffer irrelevant arguments and authorities.
12 For these reasons, defendants Lindsey Manufacturing Company, Keith E.
13 Lindsey, and Steve K. Lee request that the Court strike the supplement and
14 declaration or, in the alternative, order that the declarant on whose sworn statement
15 the sur-reply is based appear at the hearing on defendants’ motion to dismiss.
16 A. The Supplement and Its Accompanying Declaration is an Improper
17 Sur-Reply
18 The government styles its filing as a “supplement.” In actuality, it is an
19 inappropriate sur-reply brief filed without leave of court and in a manner that
20 deprives defendants of the ability to analyze all responses. Local Civil Rule 7-10
21 provides that “[a]bsent prior written order of the Court, the [party opposing a
22 motion] shall not file a response to the reply.” L. R. Civ. 7-10.1
23

24 1 See L. Crim. R. 57-1(“When applicable directly or by analogy, the Local

25
Rules of the Central District of California shall govern the conduct of criminal
proceedings before the District Court, unless otherwise specified.”). The
26 government attempts to deflect attention from Rule 7-10 by reminding the Court
27
that “it noted” its plan to file this paper in its opposition to defendants’ motion, but
its having so noted does not nullify Rule 7-10. See Supplement and Declaration at
28 1-2.
EX PARTE APPLICATION TO STRIKE SUPPLEMENT
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1 The government’s March 18th filing and the attached declaration are a
2 response to the defendants’ opening reply brief. The government’s purported
3 declarant, Clifton M. Johnson, submits argument on the issue before the Court,
4 which has already been briefed in the motion, opposition and reply. Specifically,
5 the declaration sets forth the text of the Organization for Economic Cooperation
6 and Development Convention (“OECD”) on Combating Bribery of Foreign Public
7 Officials in International Business Transactions (“Convention”), some legislative
8 history relating to 1998 amendments to the FCPA, and the government’s
9 interpretation of the combined significance of those sources. See Declaration of
10 Clifton M. Johnson, Exhibit 1 to Supplement and Declaration, ¶¶ 2 (history of the
11 United States’ negotiation of the Convention), 3 (text of the Convention), 4 (text of
12 a Commentary on the Convention, and statement of interpretive value of the
13 Commentary), 5 (United States’ interpretation of its obligations under the
14 Convention), 6 (history of United States’ assertions relating to the Convention), 7
15 (argument on the impact of one interpretation of the FCPA). These are nothing
16 more than reasons the government opposes defendants’ motion. The government
17 had an opportunity to make these arguments in its Opposition. See L. Civ. R. 7-9;
18 L. Cr. R. 57-1. The Court should strike the government’s attempt at a second bite
19 at the apple.
20 B. The Supplement and Declaration Relies on Hearsay and Expert
21 Testimony Presented by an Unqualified Witness, and the Core
22 Argument it Advances is Irrelevant
23 There are other grounds upon which to strike the government’s inappropriate
24 filing, including that most of the statements of Mr. Johnson’s declaration are
25 comprised of just legal argument disguised as a declaration, or hearsay, offered in
26 evidence to prove the truth of the matter asserted. See Federal Rule of Evidence
27 801. Specifically, the government asks the defendants and the Court to accept that
28 Mr. Johnson is personally “familiar with international anti-corruption law and
EX PARTE APPLICATION TO STRIKE SUPPLEMENT
2
Case 2:10-cr-01031-AHM Document 303 Filed 03/21/11 Page 5 of 9 Page ID #:6567

1 practice, including the interpretation and application of the Convention,”

2 Supplement and Declaration ¶ 1; that the United States was a driving force behind
3 the Convention, id. ¶ 2; that the United States interprets its obligations under the
4 Convention a certain way, id. ¶ 5; that the United States has made certain
5 assertions over the years relating to its own compliance with the Convention, id. ¶
6 6; that there would be a particular impact on United States foreign policy were the
7 Court to adopt the defendants’ interpretation of the FCPA, id. ¶ 7; and so on.
8 Also, the declaration does not comport with rules applicable to declarations.
9 While Local Civil Rule 7-6 provides that “factual contentions involved in any
10 motion . . . shall be presented, heard, and determined upon declarations and other
11 written evidence alone,” because the declaration fails to meet the standards of
12 Local Civil Rule 7-7, the Court should strike it. Local Civil Rule 7-7 provides that
13 “[d]eclarations shall contain only factual, evidentiary matter and shall conform as
14 far as possible to the requirements of F. R. Civ. P. 56(e).” L. Civ. R. 7-7. Federal
15 Rule 56(e), in turn, requires that:
16 An affidavit or declaration used to support or oppose a
17 motion must be made on personal knowledge, set out
18 facts that would be admissible in evidence, and show that
19 the affiant or declarant is competent to testify on the
20 matters stated.
21 Fed. R. Civ. P. 56(c)(4); L. Cr. R. 57-1. See also L. Cr. R. 12-1.1 (setting forth
22 analogous requirements for declarations submitted in support of motions to
23 suppress).
24 The Johnson declaration fails these standards in several ways. It fails to
25 satisfy Local Rule 7-7 because it contains Mr. Johnson’s opinion of the weight to
26 be given to treaties, interpretation of the Convention and to the FCPA, and about
27 the positive impact of a particular interpretation of the FCPA, none of which are
28 “factual material.” Supplement and Declaration ¶¶ 4, 5, 7. It also does not
EX PARTE APPLICATION TO STRIKE SUPPLEMENT
3
Case 2:10-cr-01031-AHM Document 303 Filed 03/21/11 Page 6 of 9 Page ID #:6568

1 conform to the requirements of Rule 56(c)(4) because Mr. Johnson offers

2 statements that would not be admissible in evidence. For example, there is no
3 indication on the face of the declaration that any statement within it (such as that
4 the United States was a driving force in Convention negotiations) is made upon
5 personal knowledge. See Fed. R. Evid. 602. Moreover, putting aside the fact that
6 expert and opinion testimony are themselves impermissible subjects of
7 declarations, the government’s proffer makes no attempt to qualify Mr. Johnson as
8 a witness with the expertise necessary to opine on the issues he addresses. See
9 Fed. R. Evid. 702. The declaration also contains hearsay within hearsay, such as
10 accounts of what took place in a 1998 hearing. Supplement and Declaration ¶¶ 5,
11 6; see Fed. R. Evid. 801. Moreover, Mr. Johnson’s assertions about what took
12 place outside of the court are also not supported by sworn or certified copies of
13 papers on which the declarant purports to or may otherwise rely, a further failure to
14 satisfy Rule 56.
15 Finally, much of Mr. Johnson’s declaration is irrelevant. See Federal Rule
16 of Evidence 401. The opinion of one employee of the Department of State, or even
17 of the Department of State as a whole, on the terms of the Convention and what the
18 treaty required of the United States, as well as the meaning of the FCPA, a United
19 States criminal statute, has no bearing on the matter before the Court. In any
20 event, it is the job of the federal courts, not the executive branch, to be the final
21 arbiter of what the FCPA actually provides. See generally Marbury v. Madison, 1
22 Cranch 137, 177 (1803) (“It is emphatically the province and duty of the judicial
23 department to say what the law is.”).
24 On the other hand, the foreign policy implications of a particular
25 interpretation, and how to deal with them, are the business of Congress and the
26 President to address. Mr. Johnson’s suggestion to this Court to decide foreign
27 policy is inappropriate. Courts concern themselves with the interpretation of the
28 law as written. Congress is perfectly capable of amending the statute if it decides
EX PARTE APPLICATION TO STRIKE SUPPLEMENT
4
Case 2:10-cr-01031-AHM Document 303 Filed 03/21/11 Page 7 of 9 Page ID #:6569

1 it is necessary to do so in light of a court’s decision. See generally McNally v.

2 United States, 483U.S. 350, 360 (1987) superseded by statute, Anti-Drug Abuse
3 Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (“If Congress desires to go
4 further, it must speak more clearly.”).
5 The government has submitted a brief masquerading as a declaration. This
6 additional argument was submitted without leave of the Court, and without
7 adhering to standards applicable to declarations. For these reasons, defendants
8 request that the Court strike the Supplement and Declaration.
9 C. At a Minimum, the Court Should Require that Mr. Johnson Appear
10 Even though it submitted Mr. Johnson’s declaration and urges this Court to
11 rely on the arguments made in it, the government has informed the defendants that
12 it does not intend to voluntarily make Mr. Johnson available at the hearing
13 scheduled for argument on defendants’ motion to dismiss. See March 19, 2011
14 Letter, Exhibit A. If the Court is inclined to consider Mr. Johnson’s declaration,
15 defendants request that the Court order that Mr. Johnson appear for cross-
16 examination at the hearing on defendants’ motion to dismiss. See L. Civ. 7-6
17 (“[T]he Court may, in its discretion, require or allow oral examination of any
18 declarant or any other witness.”); see L. Cr. R. 57-1. See also L. Cr. R. 12-1.3
19 (providing that the parties should make available for cross-examination any
20 declarant in connection with a motion to suppress). Defendants also request that
21 the Court order that the government provide a sworn and certified copy of any
22 written material or Jencks on which Mr. Johnson has or will rely. See Fed. R. Civ.
23 P. 56(c)(4); L. Civ. R. 7-7; L. Cr. R. 57-1. See also Fed. R. Crim. P. 26.2.
24

25 ///
26

27
28 ///
EX PARTE APPLICATION TO STRIKE SUPPLEMENT
5
Case 2:10-cr-01031-AHM Document 303 Filed 03/21/11 Page 8 of 9 Page ID #:6570

1 III. CONCLUSION
2 For the reasons set forth herein, this Court should strike the Supplement to
3 the Government’s Opposition to the Defendant’s Motion to Dismiss the First
4 Superseding Indictment and the Declaration of Clifton M. Johnson or, in the
5 alternative, exercise its discretion to require Mr. Johnson to appear at a hearing on
6 defendants’ motion to dismiss.
7

8 DATED: March 21, 2011 Respectfully submitted,

9
JANET I. LEVINE
10 CROWELL & MORING LLP
11
_/s/ Janet I. Levine __________________
12 By: JANET I. LEVINE
13 Attorney for Defendant
Steve K. Lee
14

15 DATED: March 21, 2011 JAN L. HANDZLIK

16 GREENBERG TRAURIG LLP

17 __/s/ Jan L. Handzlik___________________

18 By: JAN L. HANDZLIK
Attorneys for Defendants
19 Lindsey Manufacturing Company and
20 Keith E. Lindsey

21

22

23

24

25

26

27
28

EX PARTE APPLICATION TO STRIKE SUPPLEMENT

6
Case 2:10-cr-01031-AHM Document 303 Filed 03/21/11 Page 9 of 9 Page ID #:6571

1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 I am employed in the County of Los Angeles, State of California, at Crowell
4 & Moring LLP at 515 S. Flower Street, 40th Floor, Los Angeles, California 90071.
5 I am over the age of 18 and not a party to the within action.
6 On March 21, 2011, I served the foregoing document described as
7 EX PARTE APPLICATION FOR AN ORDER TO STRIKE THE
SUPPLEMENT TO THE GOVERNMENT’S OPPOSITION TO THE
8 DEFENDANTS’ MOTION TO DISMISS THE FIRST SUPERSEDING
9 INDICTMENT AND THE DECLARATION OF CLIFTON M. JOHNSON,
OR, IN THE ALTERNATIVE, FOR AN ORDER REQUIRING THAT MR.
10 JOHNSON APPEAR AT THE HEARING ON DEFENDANTS’ MOTION;
11 EXHIBIT; [PROPOSED] ORDER (UNDER SEPARATE COVER) on the
parties in this action by electronically filing the foregoing with the Clerk of the
12 District Court using its ECF System, which electronically notifies the following:
13
Douglas M. Miller (Assistant United States Attorney)
14 Email: doug.miller@usdoj.gov
15 Nicola J. Mrazek (United States Department of Justice Senior Trial
Attorney)
16 Email: nicola.mrazek@usdoj.gov
17 Jeffrey Goldberg (United States Department of Justice Senior Trial Attorney)
Email: jeffrey.goldberg2@ usdoj.gov
18
Jan L. Handzlik (Attorney for Defendants Lindsey Manufacturing Company
19
and Keith E. Lindsey)
20 Email: handzlikj@gtlaw.com
21
Stephen G. Larson (Attorney for Defendant Angela Maria Gomez Aguilar)
22 Email: slarson@girardikeese.com
Email: mweber@girardikeese.com
23

24 I declare under penalty of perjury under the laws of the State of California
25 that the above is true and correct.
26 Executed on March 21, 2011, at Los Angeles, California.
27 _/s/Kristen Savage Garcia________________
KRISTEN SAVAGE GARCIA
28
Case 2:10-cr-01031-AHM Document 303-1 Filed 03/21/11 Page 1 of 1 Page ID #:6572

Page 000007 EXHIBIT A

Case 2:10-cr-01031-AHM Document 303-2 Filed 03/21/11 Page 1 of 3 Page ID #:6573

1 JANET I. LEVINE (STATE BAR NO. 94255)

MARTINIQUE E. BUSINO (STATE BAR NO. 270795)
2 Crowell & Moring LLP
515 South Flower Street, 40th Floor
3 Los Angeles, California 90071-2258
Phone: (213) 622-4750
4 Fax: (213) 622-2690
EMAIL: jlevine@crowell.com
5 EMAIL: mbusino@crowell.com
6 Attorneys for Defendant
Steve K. Lee
7
JAN L. HANDZLIK (STATE BAR NO. 47959)
8 GREENBERG TRAURIG LLP
2450 Colorado Avenue, Suite 400 East
9 Santa Monica, Ca 90404
Phone: (310) 586-6542
10 Fax: (310) 586-0542
EMAIL: handzlikj@gtlaw.com
11

12
Attorneys for Defendants Lindsey Manufacturing
13 Company and Keith E. Lindsey
14
UNITED STATES DISTRICT COURT
15
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
16

17 UNITED STATES OF AMERICA, ) CASE NO. CR 10-1031(A)-AHM

)
18 [PROPOSED] ORDER GRANTING
Plaintiff, )
19 ) EX PARTE APPLICATION TO
STRIKE THE SUPPLEMENT TO
v. ) THE GOVERNMENT’S
20 OPPOSITION TO THE
)
21 ENRIQUE FAUSTINO AGUILAR ) DEFENDANTS’ MOTION TO
NORIEGA, ANGELA MARIA DISMISS THE FIRST
) SUPERSEDING INDICTMENT
22 GOMEZ AGUILAR, LINDSEY
MANUFACTURING COMPANY, ) AND THE DECLARATION OF
23 KEITH E. LINDSEY, and ) CLIFTON M. JOHNSON, OR, IN
STEVE K. LEE, THE ALTERNATIVE, FOR AN
) ORDER REQUIRING THAT MR.
24 JOHNSON APPEAR AT THE
Defendants. )
25 ) HEARING ON DEFENDANTS’
MOTION
)
26
)
27 )
)
28

[PROPOSED] ORDER RE EX PARTE APPLICATION TO STRIKE SUPPLEMENT

Case 2:10-cr-01031-AHM Document 303-2 Filed 03/21/11 Page 2 of 3 Page ID #:6574

1 GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED

2 that the government’s pleading, captioned “Supplement to the Government’s
3 Opposition to the Defendants’ Motion to Dismiss the First Superseding Indictment;
4 Declaration of Clifton M. Johnson” be stricken or, in the alternative, that Clifton
5 Johnson be ordered to appear in Court on March 24, 2011 with all of the
6 documents on which he relies, and all Fed. R. Crim. P. 26.2 materials, and submit
7 to cross-examination.
8

9 DATED: ________________ __________________________________

HONORABLE A. HOWARD MATZ
10
UNITED STATES DISTRICT JUDGE
11

12
Respectfully submitted,
13
CROWELL & MORING LLP
14

15

16
_/s/Janet I. Levine____________
17 By: Janet I. Levine
Attorneys for Defendant
18
Steve K. Lee
19

20

21

22

23

24

25

26

27
28

[PROPOSED] ORDER RE EX PARTE APPLICATION TO STRIKE SUPPLEMENT

1
Case 2:10-cr-01031-AHM Document 303-2 Filed 03/21/11 Page 3 of 3 Page ID #:6575

1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 I am employed in the County of Los Angeles, State of California, at Crowell
4 & Moring LLP at 515 S. Flower Street, 40th Floor, Los Angeles, California 90071.
5 I am over the age of 18 and not a party to the within action.
6 On March 21, 2011, I served the foregoing document described as
7 [PROPOSED] ORDER GRANTING EX PARTE APPLICATION TO
STRIKE THE SUPPLEMENT TO THE GOVERNMENT’S OPPOSITION
8 TO THE DEFENDANTS’ MOTION TO DISMISS THE FIRST
9 SUPERSEDING INDICTMENT AND THE DECLARATION OF CLIFTON
M. JOHNSON, OR, IN THE ALTERNATIVE, FOR AN ORDER
10 REQUIRING THAT MR. JOHNSON APPEAR AT THE HEARING ON
11 DEFENDANTS’ MOTION on the parties in this action by electronically filing
the foregoing with the Clerk of the District Court using its ECF System, which
12 electronically notifies the following:
13
Douglas M. Miller (Assistant United States Attorney)
14 Email: doug.miller@usdoj.gov
15 Nicola J. Mrazek (United States Department of Justice Senior Trial
Attorney)
16 Email: nicola.mrazek@usdoj.gov
17 Jeffrey Goldberg (United States Department of Justice Senior Trial Attorney)
Email: jeffrey.goldberg2@ usdoj.gov
18
Jan L. Handzlik (Attorney for Defendants Lindsey Manufacturing Company
19
and Keith E. Lindsey)
20 Email: handzlikj@gtlaw.com
21
Stephen G. Larson (Attorney for Defendant Angela Maria Gomez Aguilar)
22 Email: slarson@girardikeese.com
Email: mweber@girardikeese.com
23

24 I declare under penalty of perjury under the laws of the State of California
25 that the above is true and correct.
26 Executed on March 21, 2011, at Los Angeles, California.
27 _/s/Kristen Savage Garcia________________
KRISTEN SAVAGE GARCIA
28