The Roger Ng Foreign Corrupt Practices Act (FCPA) trial has now concluded its testimony phase, the parties have closed and the decision on freedom or not for Ng rests with the jury. The closing arguments highlighted the strengths and weaknesses of both parties’ positions in the trial. As reported by Patricia Hurtado, writing in Bloomberg, the prosecution’s closing assailed Ng’s defense based upon the testimony of Ng’s wife, Hwee Bin Lim, who testified that a “$35.1 million infusion of capital into a shell company she controlled was not a kickback for her husband in the 1MDB scheme, but was from an unrelated, legitimate business transaction.” Luc Cohen, writing in Reuters, said that “Ng’s wife, Hwee Bin Lim, later testified for the defense that the business venture was, in fact, legitimate. She said she invested $6 million in the mid-2000s in a Chinese company owned by the family of Leissner’s wife at the time, and the $35 million was her return on that investment.”
The biggest problem for the prosecution was its star witness Timothy Leissner. From his innocuous “lying a lot” admission, the government had to both depend on Leissner’s testimony and distance itself from it, largely at the same time. In the former category, Cohen wrote that “Leissner said the men (he and Ng) agreed to tell banks a “cover story” that the money was from a legitimate business venture between their wives and that Alixandra Smith, a prosecutor, said in her closing argument that other evidence backed up Leissner’s testimony.”
In the latter category, Matthew Goldstein, writing in the New York Times, said “A federal prosecutor told jurors on Monday that they had received enough evidence to convict a former Goldman Sachs banker for his role in one of the biggest international money laundering and bribery schemes even without the testimony of the government’s star witness.” He went on to note that the prosecutor claimed Leissner had selected moments of truthful testimony, writing “Mr. Leissner did not lie when he testified in federal court in Brooklyn to the key facts of the scheme, which was funded by a series of bond offerings that Goldman arranged for the 1MDB fund.”
The defense assailed Leissner and his testimony in their grueling 6-day cross examination, where Leissner “admitted to lying a lot in life. He was forced to admit to initially lying to federal agents, to his fellow partners at Goldman and to his wives and girlfriends.” At closing, Ng’s attorney “said Mr. Leissner was a man who “will lie if it suits his interest.” He said that, despite what the prosecution had said, without Mr. Leissner’s testimony the government could not connect Mr. Ng to the conspiracy to steal billions from the 1MDB fund. There is no evidence that connects Roger. There is not a dirty email. Not a bad text message.”
Interestingly, in the prosecution’s rebuttal, another prosecutor, Drew Rolle appeared to change tactics to defend and rehabilitate Leissner. Stewart Bishop, writing in Law360 said “Rolle also mounted a last-ditch defense of Leissner. Tim Leissner came in here, took the stand and told you the unvarnished truth,” Rolle said. “It was painful, but that’s what has to happen, because it’s the truth.” When you must try and rehabilitate your story witness on rebuttal, it is never a good sign.
Finally in an interesting twist, Hurtado reported that “The jury in the 1MDB conspiracy case against former Goldman Sachs banker Roger Ng has asked to review testimony from his wife that the defense says is key to its case. After seven weeks of testimony in federal court in Brooklyn, New York, the jurors deciding the fate of Goldman Sachs Group Inc.’s former head of investment banking in Malaysia made the request soon after they began their deliberations on Tuesday afternoon.” Trial lawyers and trial watchers are continually trying to read signs from the jury. It seems to me that this request means that the jury took Ng’s defense to heart through the testimony of his wife about the source of the family’s funds.
We all now have to sit back and wait for the jury to return with its verdict. If the jury comes back with a guilty verdict, it will bolster the Department of Justice’s (DOJ) attempts to hold individual actors culpable for their actions in engaging in FCPA violations and other white collar crime involving corporations. If the jury comes back with a not guilty verdict in the wake of the largest corporate FCPA fine and penalty, against Ng’s former employer Goldman Sachs, it could bode poorly for DOJ attempts to hold individuals accountable in similar cases or even other cases of fraud cases going forward. If there is a not guilty verdict in the Ng and you couple it with the recent not guilty verdict in the prosecution of Mark Forkner, the former chief technical pilot at Boeing responsible for the 737 Max, it may well point to the difficulties of trying to hold employees at large corporations responsible.
Mike Volkov said of the Forkner verdict, “Juries often bring justice to deliberations and verdicts.  In the Boeing case, the jurors saw through the government’s lack of fairness – Boeing officials were not charged – only a chief technical pilot was held accountable.  The fundamental flaw in this approach is that even assuming that Forkner engaged in misconduct, his actions or failures to act occurred in the context of an organization with colleagues, supervisors and other senior officials ultimately responsible for Boeing’s actions.” He concluded “Forkner’s defense attorney argued to the jury, “This was a massive corporate failure, and Boeing simply needed  someone to pin it on.” The jury agreed.”