The silence of the non-consenting

Most likely you haven’t been following the FBI’s so-called “African Sting” case. It’s a huge, expensive operation, but so obscure and technically complex that nobody but dedicated fiskers of the Foreign Corrupt Practices Act (FCPA) pays much attention to it.

I know about the case via Rich Lucibella, who knows and likes one of the defendants. At his instigation I wrote an article about it for S.W.A.T. a year or so ago.

I don’t believe the article is online, but I can sum the case up in a couple of lines: The fibbies entrapped a bunch of small business people into paying bribes (which the feds called “commissions”) to a supposed representative of the government of Gabon in hopes of getting business. Then they pounced on them, accusing them of all manner of crimes, including the ever-popular “conspiracy.” For the last several years, these businessperson-victims have been forced to fight for their assets, their reputations, and their freedom.

Now, I don’t have a lot of sympathy for the business these folks do. All of them chose to get into the government-contracting racket. On top of that, some used their status as minorities to get special consideration from the fedgov.

They went into a dirty business with eyes wide open.

Still, it’s a joy to watch the predictable thing occurring: two years after the initial busts, the government case is collapsing.

This morning an FCPA-watching website printed an insider’s look at jury deliberations in the most recent trial. Among other things, the jury foreperson wrote (emphasis mine):

As noted above, a number of jurors were troubled by the nature of the FBI sting operation. Specifically, some seemed unwilling to convict on the basis of vague language (e.g., “commission” instead of “bribe”) and where the defendants had not sought out the deal. These jurors were largely not participatory in the deliberations and when specifically called upon for their views would typically voice agreement with views expressed by some other juror voting “Not Guilty.” But enough small comments through the course of deliberations lead me to believe that their underlying view was that the defendants had acted in good faith and the FBI/DOJ in bad faith. Along the same lines, more than one juror voiced concern that it would be unjust for the defendants in this case to be convicted when the government relied so heavily on Mr. Bistrong [an informant/instigator of the sting] who freely admitted on the stand more illegal acts than the entire group of defendants was accused of, yet was able to plead to only one count of conspiracy to violate the FCPA.

So here we have jury nullification in brilliant action. Not the bold agitation of a Julian Heicklen (though bless him and his great courage). Not an overt FIJA-based challenge (though bless FIJA and their educational efforts). Just the quietest people on the jury sitting there thinking, “No, even if the defendants actually did something wrong, the government did worse.”