DOJ Argues Against Severing Charges in FCPA Case

The case involves Javier Aguilar Morales, a former trader for Vital Inc., who was charged with violating the Foreign Corrupt Practices Act by bribing Mexican and Ecuadorian officials on behalf of Vitol. In an Aug. 9 motion, Aguilar asked the U.S. District Court for the Eastern District of New York to split off and drop the allegations related to Mexico from those related to Ecuador, saying the appearance of "two distinct offenses" in one count would prejudice Aguilar if it were allowed to proceed.

Aguilar said the government acknowledged that the two alleged schemes were distinct when it initially released charges as two different counts. DOJ then "doubled down" on the distinctions by charging Aguilar with conspiracy for only the alleged Mexico scheme in the Southern District of Texas, Aguilar said (see 2308070063). He also argued DOJ can’t say the two schemes are linked because the agency has already charged multiple people with conspiracy to commit money laundering in connection with only the Mexico scheme.

Aguilar added that the single count "substantially prejudices" him by creating a risk of “juror confusion,” opens a potential back door for the government to introduce otherwise excluded evidence, undermines Aguilar's right to have each offense tried in a proper venue and imperils him under double jeopardy. Narrowing the count also would simplify the issues, Aguilar argued. "Focusing [the] trial in this district solely on the alleged 'Ecuador Bribery Scheme' thus serves the parties’, this Court’s, and the jury’s shared interest in efficiency," Aguilar said.

DOJ disagreed, saying court precedent allows "boilerplate allegations of a single conspiracy” at the pre-trial stage, when indictments appear to allege more than one conspiracy. The government is given wide latitude in charging conspiracies, the agency said, and Aguilar cited no case as precedent to overcome that general practice.

The agency also said the count “plainly alleges that Aguilar” and the other conspirators “engaged in one money laundering conspiracy.” Aguilar conspired “to promote or conceal the proceeds of both the Ecuador and the Mexico bribery schemes," DOJ said, but arguments that there were two distinct schemes is a question of fact for a jury.

DOJ also said the claims of prejudice are both incorrect and irrelevant. The cases cited by Aguilar in support of the dismissal say only that a defendant “can request that a duplicitous indictment be dismissed” but none actually resulted in dismissal of a duplicitous count, DOJ said. The standard of review makes clear that a pretrial motion based on duplicity should be granted only if the court can find “that no 'reasonable jury [could] find a single conspiracy.'”

The government's decisions in how to charge the case don't make the fifth count duplicitous, DOJ said. The different elements and evidence standards for offenses under the FCPA and the money laundering statutes is "precisely why the government has discretion in its charging theories" and why the question of duplicity should be set aside for now.

DOJ alleges that, between 2015 to 2020, Aguilar paid bribes to Ecuadorian and Mexican officials to get and retain business for Vitol related to Ecuador's state-owned oil company, Petroecuador; Mexico's state-owned oil company, Petroleos Mexicanos (PEMEX); and a PEMEX subsidiary, PEMEX Procurement International. In the Aug. 8 indictment, DOJ alleged that Aguilar wired bribes to various bank accounts via shell companies and intermediaries, also creating fake consulting agreements and invoices to hide those payments