FX Cartel traders demand access to statements made by US Government chief witness

Maria Nikolova

The defendants in a Forex manipulation lawsuit ask the Court to compel the US Government to assist them in accessing statements made by the Government’s chief cooperating witness to UK, Australian and South Korean regulators.

Former Forex traders Richard Usher, Rohan Ramchandani, and Christopher Ashton, who stand accused of conspiring to fix prices and rig bids for US Dollars and Euros in the FX spot market, are asking the New York Southern District Court to assist them in obtaining access to statements made the US Government chief cooperating witness to overseas regulators.

In a Letter, dated November 16, 2017, the defendants, also known as “FX Cartel” or “FX Mafia” asked Honorable Richard M. Berman to compel the US Government to help them access statements by the chief witness to the UK Serious Fraud Office (SFO), Australia Competition & Consumer Commission (ACCC), and Korea Fair Trade Commission (KFTC).

On October 30, 2017, in response to an inquiry by the defendants, the US Government claimed that it did not participate in the interviews involving the foreign regulators, and that it does not possess “any written or recorded memorialization of any statements the Cooperating Witness made to these authorities.” Also, the US Government stated during a further meet-and-confer on Monday, November 13, that it remains unwilling to ask the SFO, ACCC, or the KFTC for the Cooperating Witness’s statements.

The defendants now ask that the Court order the Government to request these records from the SFO, ACCC, and KFTC, or from the Cooperating Witness or banks with which it has reached plea agreements, and to produce them when it receives them, in the interests of fundamental fairness and judicial efficiency.

The defendants note that the US Government and its Cooperating Witness have signed a cooperation and non-prosecution agreement. Under the terms of the agreement, the Cooperating Witness has a continuing obligation to “cooperate fully and truthfully” with the Government. This includes a duty to produce all documents in the Cooperating Witness’s possession, custody, or control, requested by attorneys and agents of the Government in connection with any Federal Proceeding.

The defendants emphasize the importance of this evidence to the defense: The Cooperating Witness has provided statements (including in certain circumstances, we understand, sworn statements under oath) to the three regulators and those regulators subsequently found no antitrust violations in the same conduct at issue here—with the SFO explaining that “a detailed review of the available evidence led us to the conclusion that the alleged conduct, even if proven and taken at its highest, would not meet the evidential test required to mount a prosecution.”

According to the defendants, these facts suggest that the Cooperating Witness’s testimony contains exculpatory and impeaching statements.

The US Government is also said to be able to easily obtain this evidence, whereas the Defendants cannot. At a minimum, they say, the Government can certainly ask its counterparts whether they would provide the Cooperating Witness’s statements.

The case, captioned USA v. Usher et al (1:17-cr-00019), continues at the New York Southern District Court. The former traders have recently asked the Court to reschedule the date of their trial as the volume of evidence associated with the case continues to grow.

Usher, former Head of G11 FX Trading-UK at an affiliate of Royal Bank of Scotland plc, as well as former Managing Director at an affiliate of JPMorgan Chase & Co., Ramchandani, former Managing Director and head of G10 FX spot trading at an affiliate of Citicorp, and Ashton, former Head of Spot FX at an affiliate of Barclays PLC, are alleged to have conspired to manipulate the FX market by “coordinating their bidding, offering, and trading” at “certain times.”

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