Forex Cartel trader insists DOJ should not withhold evidence

Richard Usher, a former FX trader known for his participation in the “Cartel” chatroom, is pushing for the Department of Justice (DOJ) to produce all relevant documents from the criminal case against him, so that the evidence could be used in related proceedings brought by the Office of the Comptroller of the Currency (OCC).

As FX News Group has reported, the DOJ refuses to produce the information requested by Usher. He, in turn, insists that fundamental fairness and due process require that the United States not withhold this evidence in its second trial against Usher in the parallel civil proceeding before OCC.

The DOJ indicted Usher for criminal price-fixing relating to alleged competitor coordination in a chatroom among London-based FX traders. The OCC brought a parallel civil case against Usher on the same day in January 2017 that the Antitrust Division indicted him, with both alleging wrongful “coordination” among the supposed competitors to “eliminate competition.” The charges brought by the OCC and the DOJ Antitrust Division alleged that Usher engaged in “nearly daily conversations with each other” “in a permanent electronic chatroom . . . known in the market, as the ‘Cartel.’”

Over a year after Usher’s acquittal in the criminal proceedings, the OCC revived its dormant civil charges against him, based on the same conduct at issue in the criminal trial. The OCC pursues grave penalties, currently seeking to ban Usher from banking for life and impose $1.5 million in penalties on him individually.

In documents filed with the Columbia District Court on June 30, 2021, Usher once again requests to use the same discovery file – or at the very least, a portion thereof – to which he had access in the criminal trial to defend himself against another agency within the Executive Branch—this time, the OCC.

Usher has requested materials from the Department of Justice seeking the entire criminal discovery file, and a narrowed subpoena seeking only 388 documents, which the ALJ presiding over Usher’s case before the OCC issued on April 15, 2021.

The Department of Justice’s refusal to grant Usher permission to use the discovery already in his possession, even when Usher requested a subset of those documents through a subpoena that the ALJ lawfully issued, is without any basis, the trader argues. The DOJ’s refusal to produce the 388 documents requested in ALJ Whang’s subpoena on the grounds that the subpoena is invalid is without merit, he says.

Usher says that the DOJ fails to identify how granting him permission to use documents already in his possession would impose any burden on the DOJ.

Further, the trader argues that the Department of Justice’s “heads I win, tails you lose” approach to discovery violates his due process rights, denying him access to discovery and exculpatory materials that he previously had access to and used to successfully defend himself in the criminal action.

Usher concludes that the United States, having lost its criminal trial against him, should not be permitted to deny OCC-respondent the right to present a documentary defense by preventing him from using the unquestionably relevant evidence that resulted in his acquittal in the criminal action.

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