Case 2:10-cr-01031-AHM Document 296 Filed 03/18/11 Page 1 of 2 Page ID #:6519

1 ANDRÉ BIROTTE JR.

United States Attorney
2 ROBERT E. DUGDALE
Assistant United States Attorney
3 Chief, Criminal Division
DOUGLAS M. MILLER (SBN: 240398)
4 Assistant United States Attorney
NICOLA J. MRAZEK
5 JEFFREY A. GOLDBERG
Senior Trial Attorneys
6 1300 United States Courthouse
312 North Spring Street
7 Los Angeles, California 90012
Telephone: (213) 894-2216
8 Facsimile: (213) 894-6436
Email: douglas.m.miller@usdoj.gov
9
Attorneys for Plaintiff
10 UNITED STATES OF AMERICA
11 UNITED STATES DISTRICT COURT
12 FOR THE CENTRAL DISTRICT OF CALIFORNIA
13 UNITED STATES OF AMERICA, ) CR No. 10-1031(A)-AHM
)
14 Plaintiff, ) SUPPLEMENT TO THE GOVERNMENT’S
) OPPOSITION TO THE DEFENDANTS’
15 v. ) MOTION TO DISMISS THE FIRST
) SUPERSEDING INDICTMENT; DECLARATION
16 ENRIQUE FAUSTINO AGUILAR ) OF CLIFTON M. JOHNSON
NORIEGA, ANGELA MARIA )
17 GOMEZ AGUILAR, KEITH E. ) Hearing: March 24, 2011, 9:30 a.m.
LINDSEY, STEVE K. LEE, and ) (Courtroom 14)
18 LINDSEY MANUFACTURING )
COMPANY, )
19 )
Defendants. )
20
21 Plaintiff United States of America, by and through its
22 attorneys of record, the United States Department of Justice,
23 Criminal Division, Fraud Section, and the United States Attorney
24 for the Central District of California (collectively, “the
25 government”), hereby supplements its opposition to the
26 defendants’ motion to dismiss the first superseding indictment
27 with the declaration of Clifton M. Johnson. The government noted
28
 Case 2:10-cr-01031-AHM Document 296 Filed 03/18/11 Page 2 of 2 Page ID #:6520

1 in its opposition that it would file this declaration if and when

2 it was received. (Opp’n #250 at 16 n.5).
3 DATED: March 18, 2011
4 Respectfully submitted,
5
ANDRÉ BIROTTE JR.
6 United States Attorney
7 ROBERT E. DUGDALE
Assistant United States Attorney
8 Chief, Criminal Division
9
10 /s/
DOUGLAS M. MILLER
11 Assistant United States Attorney
12 NICOLA J. MRAZEK
JEFFREY A. GOLDBERG
13 Senior Trial Attorneys
Criminal Division, Fraud Section
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Case 2:10-cr-01031-AHM Document 296-1 Filed 03/18/11 Page 1 of 3 Page ID #:6521

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DECLARATION OF CLIFTON M. JOHNSON

I, Clifton M. Johnson, pursuant to 28 U.S.C. § 1746, hereby declare and say as follows:

1. I am the Assistant Legal Adviser for Law Enforcement and Intelligence ("L/LEI") in the
Legal Adviser's Office of the United States Department of State, Washington D.C.
L/LEI is responsible for providing legal advice to the Department on matters of
international law enforcement and intelligence, and manages the Department's legal
responsibilities with respect to anti-corruption efforts, including those undertaken under
the Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions ("Convention"). Therefore, my responsibilities require that I be
familiar with international anti-corruption law and practice, including the interpretation
and application of the Convention

2. The United States was a driving force behind the negotiation and conclusion of the
Convention, which was approved by the United States Senate on July 31, 1998 and
entered into force on February 15, 1999. By negotiating a multilateral Convention, the
United States sought to ensure that U.S. companies, who were subject to Foreign Corrupt
Practices Act (FCPA) sanctions for bribing foreign public officials, would face a level
playing field in international business. The United States therefore pressed for the
Convention to include language ensuring that it would be applied broadly by States
parties.

3. The Convention requires each State party to "take such measures as may be necessary to
establish that it is a criminal offence under its law for any person intentionally to offer,
promise or give any undue pecuniary or other advantage, whether directly or through
intermediaries, to a foreign public official...." Convention on Combating Bribery of
Foreign Public Officials in International Business Transactions art. 1(1). "Foreign public
official" is defined to include "any person exercising a public function for a foreign
country, including for a public agency or public enterprise." Id. at art. 1(4)(a).

4. The Commentaries to the Convention, which were adopted by the Negotiating

Conference of the Convention on the same date as the text of the Convention itself and
therefore provide important guidance on the interpretation of the Convention, further
elucidate the coverage of the definition of "public enterprise" under Article 1. The
Commentaries state that the Convention is properly interpreted to prohibit the payment,
offer, or promise of a bribe to any official of "any enterprise, regardless of its legal form,
over which a government, or governments, may, directly or indirectly, exercise a
dominant influence. This is deemed to be the case, inter alia, when the government or
governments hold the majority of the enterprise's subscribed capital, control the majority
of votes attaching to shares issued by the enterprise or can appoint a majority of the
members of the enterprise's administrative or managerial body or supervisory board."
Case 2:10-cr-01031-AHM Document 296-1 Filed 03/18/11 Page 2 of 3 Page ID #:6522

Commentaries on the Convention on Combating Bribery of Foreign Public Officials in

International Business Transactions, 14.

5. The United States interprets its obligations under the Convention to include criminalizing
the payment, offer, or promise of a bribe to foreign officials of public enterprises. In his
testimony before the Senate Foreign Relations Committee during its consideration of the
Convention, the then-Under Secretary of State for Economic, Business, and Agricultural
Affairs testified that the Convention as written "would cover government controlled
parastatals so that publicly owned, foreign owned airlines and utilities and state
telecommunications companies, which are increasingly important in public procurement,
would be covered." Testimony of Stuart E. Eizenstat, S. Exec. R. 105-19 at 29, July 16,
1998. In furtherance of those obligations, the United States amended all of the portions
of the FCPA necessary to bring U.S. law into compliance with the Convention. Id. at 33
("Since the Convention follows our FCPA closely, we have submitted to Congress only
those amendments designed to bring our law into full compliance with its obligations and
to implement the Convention.").

6. In the years since ratification, the United States has consistently asserted its compliance
with its obligations under the Convention, including the obligation to criminalize the
bribery of foreign officials of public enterprises, including enterprises that may be owned
by foreign states. The United States has asserted in multiple international fora, including
in the review process under the Convention itself, that U.S. domestic statutes criminalize
all of the conduct covered by Article 1 of the Convention.

7. The United States is a leader in global anti-corruption efforts, having been at the forefront
of the negotiation of the Convention and as a strong voice in the Working Group on
Bribery responsible for the monitoring and follow-up of the Convention. The United
States is also an active participant in other multilateral anti-corruption fora, including the
United Nations Convention against Corruption, recent anti-corruption efforts in the G20,
the Inter-American Convention against Corruption, and the Council of Europe's Group of
States against Corruption. The global fight against corruption is an important aspect of
and tool for advancing U.S. foreign policy, including U.S. economic and security
interests. In addition to treaty-based regimes, the United States provides significant
foreign assistance on anti-corruption matters to countries around the world, and is
committed to leading by example in its own laws and the enforcement of those laws.
Compliance with U.S. treaty commitments to criminalize the bribery of foreign public
officials, including officials of public enterprises, is a central aspect of U.S. leadership in
this area. Likewise, development of review processes such as the one under the
Convention, ensuring their rigor, and promoting robust compliance by all State parties,
has been among the key U.S. government objectives in this sphere and is another area
where U.S. leadership has been determinative. Interpreting the FCPA in a way that
would render the United States non-compliant with the Convention would have serious
consequences. It would have a negative impact on these foreign policy goals and be
contrary to the consistent interpretation of U.S. law that the United States has advanced in
international fora. Given past representations to the contrary by the United States in the
review process under the Convention and other multilateral fora, it would also undermine
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the influence and impact of the United States in the development and strengthening of
these key processes and, most fundamentally, in combating foreign corruption.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on this 1 94day of March, 2011.