In a blow to the DOJ, on March 4, 2019, a Northern District of California district court dismissed all charges against former Barclays foreign currency options trader Robert Bogucki. The DOJ had charged Mr. Bogucki with six counts of wire fraud affecting a financial institution and one count of conspiracy to commit wire fraud affecting a financial institution, arising from his role in an alleged scheme to defraud Barclays client Hewlett-Packard Company (“HP”). Following Mr. Bogucki’s motion under Federal Rule of Criminal Procedure 29 for a judgment of acquittal after the DOJ’s case-in-chief, the district court found that the DOJ failed to produce sufficient evidence that Mr. Bogucki had made material misrepresentations, as required for a reasonable jury to find him guilty of any of the charges.

In 2011, HP hired Barclays to execute a foreign exchange transaction relating to HP’s planned acquisition of U.K.-based software company, Autonomy. At the time, Mr. Bogucki was the head of Barclays’ foreign exchange trading. In January 2018, the DOJ indicted Mr. Bogucki on the seven counts, alleging that Mr. Bogucki had engaged in wire fraud with regard to the transaction with HP. At trial, the DOJ pursued two theories to prove the charges: 1) that Mr. Bogucki received and misused confidential information from HP and 2) that Mr. Bogucki made self-serving misrepresentations so that Barclays would make millions of dollars at the expense of HP.

The district court found that the evidence at trial failed to support either theory. The court pointed to an agreement between HP and Barclays that expressly stated that HP and Barclays were engaged as principals on opposite sides of an arm’s-length transaction, and as a result, neither Barclays nor Mr. Bogucki owed any duties to HP. As the court highlighted, even the DOJ’s own expert testified that Barclays’ “pre-positioning,” wherein banks change positions prior to taking an asset, was a common practice.

The court also looked to testimony by an HP employee who was responsible for negotiating with Mr. Bogucki. That employee stated at trial that he understood HP and Barclays had no reason to be entirely truthful; that, instead, each was acting in their own best interest. He further testified that he had engaged in half-truths and “BS-ing” in his interactions with Mr. Bogucki. The court determined, in other words, that HP representatives did not expect Mr. Bogucki to be forthright and honest, nor were they themselves fully truthful with Mr. Bogucki.

In light of this lack of evidence, the district court concluded that the DOJ had “pursued a criminal prosecution on the basis of conduct that violated no clear rule or regulation, was not prohibited by the agreements between the parties, and indeed was consistent with the parties’ understanding of the arm’s-length relationship in which they operated.”

The district court’s acquittal demonstrates the complexities surrounding the prosecution of individual defendants in financial crime cases. It highlights the importance of agreements between companies defining their relationship and posture in a negotiation, and the relevance of industry practices in objectively determining whether the materiality element of many financial crimes has been met. Simply put, subjective beliefs are insufficient to sustain a finding of “materiality,” and bluffing or lying in a situation where the norm is to bluff or lie cannot serve as a basis for a fraud conviction.