Tuesday, June 28, 2016

Feds move to ensure Lap Seng conviction

Chinese billionaire Ng Lap Seng
Courtesy: South China Morning Post

Since the untimely passing of former UN General Assembly President John Ashe, speculation has been rife as to how his death may affect the government's case against Chinese billionaire Ng Lap Seng. Undoubtedly Mr. Ashe's death is certain to add a considerable amount of intrigue to a case that has already been punctuated with several twists and turns, but we are convinced that although Ashe's death may force the Feds to make some adjustments, Manhattan US Attorney Preet Bharara is not going to allow Ashe's passing to impede his prosecution of Lap Seng and his indicted co-conspirators. Mr. Ashe died just 5 days before a scheduled court appearance in Manhattan Federal Court.
From left: John Ashe, Francis Lorenzo, Roosevelt Skerrit, and Ng Lap Seng

Mr. Ashe, who was initially introduced to Mr. Ng by Dominica's Prime Minister Roosevelt Skerrit, was to appear before presiding Judge Vernon Broderick on Monday, July 27th alongside Ng Lap Seng and Jeff Yin, who was arrested with Mr. Ng last September. Mr. Ashe, Mr. Skerrit, Mr. Ng and former Dominican Republic deputy Ambassador Francis Lorenzo were photographed in Macau last August signing agreements on projects pushed by Mr. Ng, including a "Technology Center" in Dominica. Three weeks after that meeting, the FBI arrested Mr. Ng, Mr. Ashe and Mr. Lorenzo, while Mr. Skerrit remains at large. We can only presume that is probably due to his status as head of state.
Letter of Agreement signed by Roosevelt Skerrit and Ng Lap Seng

Mr. Ashe was in talks with prosecutors hoping to secure a plea deal. In his negotiations with prosecutors, Mr. Ashe would have had to provide the Feds with detailed information on Mr. Ng's UN bribery scheme in order to get prosecutors to agree to a deal which would limit Mr. Ashe's time behind bars. We do not know what Mr. Ashe may have handed prosecutors by the time of his death but we are certain it would have had to be of sufficient value to keep them interested in continuing negotiations. We also do not know how close the two parties were to a deal but prosecutors would most certainly have documented the negotiations on video. Therefore, we do not believe Mr. Ashe's passing is going to affect the Feds in any significant way. Proof of that was just 48 hours away.

Two days after Mr. Ashe's death and 3 days before Ng Lap Seng was to appear in Federal Court, prosecutors filed a letter with Judge Broderick seeking a Curcio hearing on a matter involving Lap Seng attorney Hugh Mo. A Curcio hearing is held to examine facts relating to whether an attorney can provide adequate representation to a client during a trial where he or she may have conflicting interest. The Feds may be attempting to have one of Mr. Ng's lawyers dismissed from the case due to potential conflicts of interest.

We informed you in April that Mr. Mo became part of Mr. Ng's defense team upon the withdrawal of Mr. Ng's primary attorney, Benjamin Brafman. Mr. Brafman did not state what the reason was for his withdrawal but he informed the court that Mr. Mo was taking over. Now the Feds could be looking at having Mr. Mo removed from the case.
Brafman withdrawal letter

In his letter to Judge Broderick, US Attorney Bharara stated that the Federal government believes Mr. Hugh Mo "faces a potential conflict of interest stemming from his representation in other matters of clients linked to the Government of the People's Republic of China." Mr. Bharara went on further to state that in November 2015 the government informed Mr. Mo that it had learned that he had served as General Counsel to the Permanent Mission of the People's Republic of China to the United Nations (PRCUN) and requested further details in order to evaluate whether an actual or potential conflict of interest existed.

Mr. Mo subsequently confirmed to the Feds that he has represented the PRCUN as well as the Consulate of the People's Republic of China in New York (PRCNY), where his "duties and representation concerned providing advice and representation in areas of taxation, real estate, liaison with local and federal agencies, and providing general legal advice". He stated that his "most recent engagement...involves serving as liaison and providing legal advice regarding public security matters with the NYPD and do not involve political or policy issues". Mr. Mo also told the Feds that he did not believe any actual or potential conflict of interest existed, but that Mr. Ng was willing to waive any conflicts that the Federal government may believe exist.

Mr. Bharara noted in his letter that the Feds have continued to evaluate whether a potential conflict exists due to Mr. Mo's representation of the PRCUN among other clients linked to the Chinese government. The Feds believe that a potential conflict of interest exists, though he noted that the potential conflict can be waived by Mr. Ng.
Pages 1 & 2 of Curcio request letter

In requesting a Curcio hearing, the prosecutors are ensuring that their case against Ng Lap Seng is not tainted by Mr. Mo being part of the defense team, a situation which could lead to an appellate ruling that is unfavourable to the government should Mr. Ng be convicted and then appeal his conviction based on the premise that he did not receive proper representation because of the presence of Mr. Mo on the defense team, which the government had prior knowledge of.

In laying out his case to Judge Broderick, Mr. Bharara made reference to several cases where arguments relating to potential conflicts of interest were integral to the individual trials, and he cited a ruling from the Second Circuit court: "The trial court has an obligation to inquire into the facts and circumstances of an attorney's interests either in response to a timely conflict of interest objection or when it knows or reasonably should know of the possibility of a conflict of interest. Failure to engage in such an inquiry, when it is required, results in an automatic reversal. An inquiry allows the trial judge to determine the precise nature of the conflict and how to proceed, i.e., whether to disqualify counsel, obtain a waiver from the defendant pursuant to Curcio, or take no action". Mr. Bharara is dotting his "I's" and crossing his "T's".

Judge Broderick has not made a determination in regards to the Curcio hearing request from the government but we expect that he will hand down his ruling shortly. We are looking forward to his ruling.

Updated: 12:00 GMT

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