The former general counsel of Broadcom Corp., David Dull, avoided criminal charges in a stock options backdating case this week following claims of prosecutorial misconduct.
Dull is expected to reach a nonprosecution agreement with the government, according to court documents. He has not been criminally charged in the case, but he is considered to be a co-conspirator in the government’s indictment, which leveled securities fraud charges against Henry Nicholas, the former chief executive officer, and William Ruehle, the former chief financial officer, of Broadcom. The U.S. Securities and Exchange Commission also sued Dull in a related civil action in which he has denied any wrongdoing.
Dull was expected to testify Thursday in the government’s case against Ruehle, which is in its fifth week of trial.
The prosecutorial misconduct claims arose after U.S. District Court Judge Cormac Carney of the Central District of California in Santa Ana, Calif., made the unusual move of granting immunity to Dull on Monday at the request of Ruehle’s lawyers, who wanted him to rebut a key government witness. Carney also granted immunity to Henry Samueli, the co-founder of Broadcom, who is awaiting sentencing after pleading guilty to making a false statement to the SEC.
Both had indicated prior to the immunity order that they would plead the Fifth Amendment if called to testify.
Soon after Carney’s order, prosecutorial misconduct claims surfaced. According to press reports, Dull’s lawyer, James Asperger, co-chairman of the white-collar group at Los Angeles-based Quinn Emanuel Urquhart Oliver & Hedges, told the judge that Assistant U.S. Attorney Andrew Stolper had called him in an attempt to negotiate his client’s upcoming testimony and had warned that Dull should not give the same testimony he had to the SEC.
Such threats were made in order to avoid “adverse consequences,” according to proposed jury instructions submitted on Dec. 3 by Ruehle’s lawyer, Matthew Umhofer, an associate in the Los Angeles office of New York’s Skadden, Arps, Slate, Meagher & Flom.