Former JPMorgan FX trader sues DOJ over “shell game with evidence”
Richard Usher, former Head of G10 Spot Trading at JPMorgan Chase Bank, has taken the Department of Justice (DOJ) to Court over what he labels as a “shell game with evidence”.
Usher filed a Complaint with the Columbia District Court on March 11, 2021. The complaint alleges that “the DOJ has adopted a purposeful and spiteful strategy” to prevent Usher from using the exculpatory materials that led to his acquittal in his criminal trial to defend himself from the same allegations in a follow-on administrative enforcement action.
Usher seeks relief in Court because “the United States Government is playing a shell game with evidence—evidence that the Government has already admitted in the parallel criminal case is exculpatory—that Usher needs for his defense in the parallel Office of Comptroller of the Currency (“OCC”) administrative enforcement action that carries severe penalties, including lifetime banishment from his livelihood”.
Let’s recall that Usher was acquitted of charges of manipulating the Forex spot market in a criminal case brought by the DOJ. But he and Rohan Ramchandani are now facing new challenges related to the events that led to the criminal proceedings against them, as the Office of the Comptroller of the Currency (OCC) is targeting them in administrative proceedings.
Let’s recall that, in August 2020, the OCC issued notices against Usher and Ramchandani. The notices said that hearings will commence so as to determine whether Orders should be issued against Ramchandani, the former Head of European Foreign Exchange Spot Trading at Citibank, and Richard Usher, the former Head of EMEA Foreign Exchange Spot Trading at JPMorgan Chase Bank, N.A., prohibiting the respondents from participating in any manner in the conduct of the affairs of any federally insured depository institution or any other institution, credit union, agency or entity referred to in 12 U.S.C. § 1818(e), and requiring respondents to pay a civil money penalty.
Usher claims that, since his acquittal by a New York jury in 2018, the OCC and DOJ have worked seemingly together, but possibly in a consciously parallel manner, to erect procedural barriers and hurdles to deny Usher his constitutional due process rights to a fair administrative proceeding and to a defense that would be based on that proven exculpatory evidence.
The evidence in question consists of nearly three million records that the DOJ produced to Usher as discovery in a criminal prosecution that DOJ brought against Usher.
The OCC’s case arises from an investigation it coordinated with DOJ, and is based on the same foreign exchange conduct. The penalties that the OCC seeks against Usher are severe: lifetime banishment from the banking industry and a $1.5 million penalty.
The OCC’s theory is that Usher’s trading caused the distant parent of the bank that employed Usher to plead guilty to a criminal antitrust violation. The OCC will use the bank’s guilty plea to support its case for Usher’s liability in the OCC matter. Usher has been acquitted of the criminal antitrust charges in his jury trial in the Southern District of New York. His defense is, in part, that for whatever good faith reasons the bank chose to plead guilty, the government is estopped from claiming it is because Usher’s acquitted trading created any criminal antitrust liability.
Usher argues that his request is modest: he asks to defend himself, for a second time, in a second, parallel American proceeding, using the same evidence that the U.S. Government has already gathered and produced to him as exculpatory.
The Exculpatory Evidence is already in Usher’s possession. All he needs is DOJ’s consent for Usher to “use” that evidence by presenting it to another arm of the same government—i.e., OCC personnel. Usher alleges that the DOJ Antitrust Division has undertaken a campaign of intransigence and resistance, seeking in essence to bury the Exculpatory Evidence.
To start with, the OCC denied possession of—and responsibility for—the Exculpatory Evidence, redirecting Usher to DOJ. Then the Department refused the release of any of the Exculpatory Evidence.
According to Usher, DOJ’s refusal to grant the permission he seeks violates both DOJ’s own Touhy regulations and the Constitution. Moreover, the United States Government’s continued pursuit of the OCC’s administrative action without permitting Usher to present already-gathered, already-proven-to-be-exculpatory evidence would offend due process.
Usher therefore asks the Court, in essence, to require the government either to permit Usher to use the Exculpatory Evidence before the OCC or to abandon the (second) prosecution of Usher.
An inscription on the walls of the Department of Justice states: ‘The United States wins its point whenever justice is done its citizens in the courts.’ The government has lost sight of that guiding principle here, Usher concludes.