In August 2024, the DOJ announced that a “federal grand jury in the Southern District of Florida returned an indictment … charging three executives of an election voting machine and service provider company and a former Chairman of the Commission on Elections (COMELEC) of the Republic of the Philippines for their roles in an alleged bribery and money laundering scheme to retain and obtain business related to the 2016 Philippine elections. […] These bribes were allegedly paid to obtain and retain business related to providing voting machines and election services for the 2016 Philippine elections and to secure payments on the contracts, including the release of value added tax payments.”

The company is Smartmatic (and related entities) and the individuals charged with Foreign Corrupt Practices Act offenses were:

  • Roger Alejandro Pinate Martinez (a citizen of Venezuela and resident of Florida described as a cofounder, Chief Operating Officer and President of Company 1 who was also and employee of Company 2); and
  • Jorge Miguel Vasquez (a citizen of the U.S. and executive for Company 2 in Florida who managed hardware development and manufacturing worldwide for Company 1 who reported to Pinate).

Pinate filed a motion for a bill of particulars (a request by a criminal defendant for more detailed information about the criminal charges beyond those alleged in the actual charging document) which was also adopted by Vasquez.

In general the motion asserted that the Indictment “while long on story, is short on several key facts needed to inform [him] of how he is alleged to have violated the [FCPA and money laundering statutes].” The motion requested that the Government particularize its allegations by (1) identifying the official acts, decisions, omissions in violation of lawful duties, or uses of influence that were undertaken by a foreign official in consideration for a corrupt act, and how those allegedly corrupt acts were intended to assist in “obtaining or retaining business for or with, or directing business to, any person,” as required by the FCPA; and (2) the specific transactions that underlie the alleged money laundering conspiracy. According to Piñate, the Indictment and the Government’s disclosures to date, “fail[ ] to sufficiently set forth these facts, and prejudices [his] ability to prepare for trial.”

Recently a Magistrate Judge in the S.D. of Florida denied the motion for a bill of particulars  In summary fashion, the order states:

“[The] motion seeks relevant material, to be sure. The motion is not illogical. Any seasoned, rational, and focused criminal defense attorney would want to obtain the materials requested here in this Foreign Corrupt Practices Act (“FCPA”)/money laundering prosecution.

But relevance is not the standard. And counsel’s strategic preferences do not establish the applicable legal standard, either. Using the appropriate standard, the Undersigned concludes that the Indictment is sufficiently specific and that the Government has also fulfilled its legal obligations by providing information through other sources, including discovery. At bottom, the motion seeks the type of pre-trial discovery which, while often required in civil litigation, is not mandatory in a federal criminal prosecution. Although Piñate denies it in his motion and reply, the motion appears to be motivated by a desire to obtain an investigatory tool designed to uncover the precise way in which the Government intends to prove its case.

As outlined in the Government’s opposition response, the Government has provided Defendants with what it calls “voluminous discovery, including documents pertaining to the specific transactions alleged in [the relevant counts]. Furthermore, it has itemized the discovery productions “to aid in [ ] [D]efendants’ review of this material,” and has “responded in writing to defense inquiries and made itself available to field discovery-related inquiries on several occasions.”

By way of summary introduction, Defendants are not entitled to a bill of particulars here, especially when their ability to understand the charges against them is informed by the Indictment, substantial discovery, and voluntary cooperation in a process which seems akin to responding to interrogatories in a civil lawsuit.”

[…]

Here, the Indictment (coupled with the Government’s disclosures) is sufficient for Piñate and Vasquez to understand the charges against them, prepare for trial, and avoid unfair surprise. Piñate may well want more, but he is not entitled to more.”

In conclusion, the order states:

“The Government, of course, is always free to voluntarily produce some or all of the information requested in the instant motion. There are several reasons why the Government might want to do so, including, for example: (1) to eliminate a potential appellate issue; (2) to facilitate meaningful plea negotiations; (3) to generate factual specifics prompting a decision by Piñate and/or Vasquez to resolve the case without trial; or (4) to help streamline the trial and make it more efficient. But, as outlined above, the Government is not required on this record to produce the requested materials in response to a motion for a bill of particulars.”