Former FX “cartel” traders should have destroyed evidence after criminal case conclusion, DOJ says

Maria Nikolova

Rohan Ramchandani and Richard Usher should not have kept any documents produced as part of the discovery in the criminal proceedings against them, according to the Department of Justice.

The United States Department of Justice (DOJ) has responded to a request by former FX traders Richard Usher and Rohan Ramchandani to use discovery materials from the criminal case against them in the renewed proceedings by the Office of the Comptroller of the Currency (OCC).

The reply, submitted at the New York Southern District Court on August 21, 2020, opposes the traders’ request.

Let’s recall that Richard Usher and Rohan Ramchandani, along with an alleged co-conspirator, were indicted in January 2017 for violation of the Sherman Act for an alleged price-fixing and bid-rigging scheme in the FX market. Shortly after their July 2017 arraignment, both began to receive an extraordinary amount of pretrial discovery.

By the time of trial, according to the US Government, the defendants had received:

  • Well over two million contemporaneous business records from over 50 different private financial institutions, including Bloomberg chats, emails, memoranda, and internal corporate documents, including materials produced under grand jury subpoenas;
  • Nearly a half million audio files, primarily from phones located on bank trading desks, used by hundreds of traders for business and personal calls;
  • Over 250 witness interview memoranda from the FBI, known as 302s;
  • Other sensitive law enforcement materials, such as audio files and transcripts of consensual recordings made by the FBI and a cooperating witness;
  • Transcripts of grand jury testimony; and several hundred sets of attorney and paralegal notes and other work product created during the FX investigation by the Department of Justice and other U.S. and foreign authorities engaged in parallel investigations and enforcement actions against Usher, Ramchandani, and other FX traders.

In the document filed with the Court on August 21, 2020, the DOJ says that the defendants did not, and do not, own any of these materials.

The DOJ notes Paragraph 2(c) of the Protective Order issued in the criminal case which directed that, “following the conclusion of this case, including after all appeals have been exhausted,” the discovery “shall be returned to the Government or destroyed…together with any and all copies thereof, to the best of Defense Counsel’s ability.” No exception to this rule was stated.

The criminal case against Usher and Ramchandani ended on October 26, 2018, when a jury acquitted the defendants of the charge against them. At that time, paragraph 2(c) of the Order unmistakably directed Usher and Ramchandani to return or destroy the materials that had been provided to them for use in their defense, and not retain any copies, the Government says.

According to the DOJ, in their recent letter, Usher and Ramchandani reveal that they did not follow the Order, and knowingly so – after being acquitted, they instructed their attorneys to archive the discovery for potential later use. In a footnote to their recent letter they say they did so because of “uncertainty” following their criminal trial regarding whether they would “need” the documents for future proceedings.

The DOJ insists that Usher’s and Ramchandani’s request should be denied.

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