U.S. v. Duperval (Duperval Appellate Brief)

Case: 12-13009
Date Filed: 02/04/2013
Page: 1 of 88
NO. 12-13009-CC
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff/appellee, v. JEAN RENE DUPERVAL, Defendant/appellant.
On Appeal from the United States District Court for the Southern District of Florida
INITIAL BRIEF OF THE APPELLANT JEAN RENE DUPERVAL
Respectfully submitted, LAW OFFICES OF JOHN E. BERGENDAHL Counsel for Jean Rene Duperval 25 S.E. 2nd AVENUE, SUITE 1105 MIAMI, FLORIDA 33131 TELEPHONE NO. (305) 536-2168
THIS CASE IS ENTITLED TO PREFERENCE (CRIMINAL APPEAL)
Case: 12-13009
Page: 2 of 88
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT United States v. Jean Rene Duperval Case No. 12-13009-CC C1 of 2 Appellant, Jean Rene Duperval, files this Certificate of Interested Persons and Corporate Disclosure Statement, listing the parties and entities interested in this appeal, as required by 11th Cir. R. 26.1. Bergendahl, John E., trial and appellate counsel for Appellant Jean Rene Duperval Duperval, Jean Rene, Defendant/Appellant Fagan, Aurora, counsel for Appellee Ferrer, Wilfredo A., counsel for Appellee Gerrity, Kevin B., counsel for Appellee Grove, Daren, counsel for Appellee Heller, Kirby, counsel for Appellee Koukios, James M., counsel for Appellee Martinez, Hon. Jose E., Trial Judge Montiero, Courtney, co-counsel for Defendant at Trial Mrazek, Nicola J., counsel for Appellee ii
Case: 12-13009
Page: 3 of 88
United States v. Jean Rene Duperval Case No. 12-13009-CC C2 of 2
Republic of Haiti, victim Schultz, Anne R., counsel for Appellee Telecommunications DHaiti, victim
iii
Case: 12-13009
Page: 4 of 88
STATEMENT REGARDING ORAL ARGUMENT
The Appellant respectfully submits that oral argument is necessary to the just resolution of this appeal and will significantly enhance the decision making process.
iv
Case: 12-13009
Page: 5 of 88
TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS ....................................................C-1 STATEMENT REGARDING ORAL ARGUMENT...............................................iv TABLE OF CITATIONS....................................................................................... viii STATEMENT OF JURISDICTION........................................................................xv STATEMENT OF THE ISSUES...............................................................................1 ISSUE I ........................................................................................................................29 THE TRIAL COURTS FAILURE TO MAKE ANY INQUIRY AS TO WHETHER THE JURY HAD BEEN EXPOSED TO
EXTENSIVE, ONGOING, HIGHLY PREJUDICIAL MID-TRIAL PUBLICITY WAS AN ABUSE OF DISCRETION AND DEPRIVED MR. DUPERVAL OF HIS SIXTH AMENDMENT RIGHT TO BE TRIED BY A FAIR AND IMPARTIAL JURY. ISSUE II .......................................................................................................................37 THE TRIAL COURT ERRED IN NOT CHARGING THE JURY IN ACCORDANCE WITH MR. DUPERVALS PROFFERED
THEORY OF DEFENSE INSTRUCTION. ISSUE III......................................................................................................................41 THE GOVERNMENTS SUBSTANTIAL INTERFERENCE WITH v
Case: 12-13009
Page: 6 of 88
A POTENTIAL ESSENTIAL DEFENSE WITNESS, DEPRIVED MR. DUPERVAL OF HIS FIFTH AMENDMENT RIGHT TO DUE PROCESS OF LAW. ISSUE IV .....................................................................................................................47 THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT HAITI TELECO WAS A
GOVERNMENT INSTRUMENTALITY AND THAT JEAN RENE DUPERVAL WAS A FOREIGN OFFICIAL AS REQUIRED TO PROVE THAT A VIOLATION OF THE FOREIGN CORRUPT PRACTICES ACT GENERATED PROCEEDS OF A SPECIFIED UNLAWFUL ACTIVITY A NECESSARY PREDICATE FOR THE CONVICTIONS ON THE MONEY LAUNDERING
CONSPIRACY AND SUBSTANTIVE MONEY LAUNDERING CHARGES. ISSUE V .......................................................................................................................62 THE 108 MONTH SENTENCE IMPOSED BY THE DISTRICT COURT WAS BOTH PROCEDURALLY AND SUBSTANTIVELY UNREASONABLE.
vi
Case: 12-13009
Page: 7 of 88
ISSUE VI .....................................................................................................................71 WHETHER CUMULATIVE ERROR COMPELS REVERSAL OF THE DEFENDANT'S CONVICTIONS. STATEMENT OF THE CASE ..................................................................................3 Course of Proceedings and Disposition in the District Court .........................3 Statement of Facts ...........................................................................................6 Standards of Review ......................................................................................24 SUMMARY OF THE ARGUMENTS ....................................................................27 ARGUMENTS AND CITATIONS OF AUTHORITY ..........................................29 CONCLUSION ........................................................................................................72 CERTIFICATE OF COMPLIANCE .......................................................................73 CERTIFICATE OF SERVICE ................................................................................73
vii
Case: 12-13009
Page: 8 of 88
TABLE OF CITATIONS Cases: Central Bank of Denver v. First Interstate Bank 511 U.S. 164, 176-77, 114 S.Ct. 1439, 1448-49 (1994) ..................................... 56 Compare U.S. v. Achille 277 Fed.Appx. 875 (11th Cir. 2008) ................................................................... 68 Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)..................................................................................... 58 Demps v. Wainwright 805 F.2d 1426 (11th Cir. 1986)........................................................................... 45 Dole Food Co. v. Patrickson 38 U.S. 468, 475-76, 123 S.Ct. 1655, 1660-61 (2003) ....................................... 57 Gall v. United States, 552 U.S. 38, 51 (2007) ........................................................................................ 25 Hall v. American National Red Cross, 86 F.3d 919, 921 (9th Cir. 1996) ......................................................................... 52 Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639 (1961). .................................................................... 33 Kolender v. Lawson, 461 U.S. 352, 357 (1983) .................................................................................... 58 Lamb v. Phillip Morris, Inc., 915 F.2d 1024, .................................................................................................... 47 Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) ....................................... 37
viii
Case: 12-13009
Page: 9 of 88
Norfolk & Western R. Co. v. Train Dispatchers 499 U.S. 117, 129, 111 S.Ct. 1156, 1163-64 (1991) ........................................... 51 Oswald v. Bertrand, 374 F.3d 475, 482 (7th Cir. 2004) ........................................................................ 33 Reno v. Koray, 515 U.S. 50, 65, 115 S.Ct. 2012, 2029 (1995) .................................................... 57 Rita v. United States, 551 U.S. 338, 356 (2007) .................................................................................... 69 Robinson v. Shell Oil Co., 519 U.S. 337, 341-42, 117 S.Ct. 843, 846-47 (1997). . . . . . . . . . . . . . . . . . . . .67 Rose v. Long Island R.R. Pension Plan, 828 F.2d 910, 917-18 (2d Cir. 1987) ................................................................... 55 Small v. United States, 544 U.S. 385, 396-98 (2005) ............................................................................... 50 Territory of Alaska v. American Can Company, 358 U.S. 224 (1959) ............................................................................................ 53 Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed 2d 654 (1960) ............................................... 33 United States v. Aragon, 962 F.2d 439,446-47 (5th Cir. 1992) ................................................................... 35 United States v. Barrie, 267 F.3d 220 (3d Cir. 2001) ................................................................................ 65 United States v. Campa, 529 F.3d 980, 1016 (11th Cir. 2008) .................................................................. 66 United States v. Carson, No. SACR 0900077JVS, 2011 WL 5101701, *5 ix
Case: 12-13009
Page: 10 of 88
(C.D. Cal. May 18, 2011) ........................................................................... 48, 52, 53 United States v. De La Mata, 266 F.3d 1275, 1298 (11th Cir.2001) ................................................................. 24 United States v. Dohan, 508 F.3d 989, 993 (11th Cir. 2007) .................................................................... 26 United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 1116, 122 L.Ed.2d 445 (1993)....................... 67 United States v. Egge, 223 F.3d 1128, 1133-34 (9th Cir. 2000) ............................................................. 65 United States v. Gonzalez 550 F.3d 1319, 1324 (11th Cir. 2008) ................................................................ 69 United States v. Goodwin, 625 F.2d 693, 703 (5th Cir. 1980), cert denied, 484 U.S. 873, 108 S.Ct. 209, L.Ed.2d 160 (1987) ............................................................................................. 45 United States v. Granderson, 511 U.S. 39, 54, 114 S.Ct. 1259, 1267-68 (1994 ............................................... 57 United States v. Hammond 598 F.2d 1008 (5th Cir. 1979)................................................................. 44, 45, 47 United States v. Hands, 184 F.3d 1322, 1334 (11th Cir. 1999) ................................................................ 72 United States v. Harrelson 754 F.2d 1153, 1163 (5th Cir. 1985). ................................................................. 24 United States v. Henricksen 564 F.2d 197 (5th Cir. 1977) ................................................................... 44, 45, 47 United States v. Herring, 568 F.2d 1099 (5th Cir. 1978).............................................................................. 34 x
Case: 12-13009
Page: 11 of 88
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc ) ............................................... 69 United States v. Kloess, 251 F.3d 941 (11th Cir. 2001)............................................................................. 62 United States v. Labarbera, 581 F.2d 107, 110 (5th Cir. 1978)....................................................................... 72 United States v. Lanier, 520 U.S. 259, 266; 117 S.Ct. 1219, 1225 (1997)................................................ 57 United States v. Lively, 803 F.2d 1124, 1126 (11th Cir.1986) .................................................................... 37 United States v. McGarity, 669 F.3d 1218, 1232 (11th Cir.).......................................................................... 25 United States v. McLain 823 F.2d 1457, 1462 (11th Cir. 1987) ................................................................ 72 United States v. Morrison 535 F.2d 223 (3d Cir.1976) ........................................................................... 44, 45 United States v. Orleans, 425 U.S. 807, 814-16, 96 S.Ct. 1971, 1976-1978 (1976) .................................. 55 United States v. Pineiro, 389 F.3d 1359, 1367 (11th Cir. 2004) ................................................................ 25 United States v. Pompey, 17 F.3d 351, 354 (11th Cir.1994) (citations omitted) ......................................... 63 United States v. Puche 350 F.3d 1137, 1148 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
xi
Case: 12-13009
Page: 12 of 88
United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir.1995) ................................................................... 37 United States v. Santos, 553 U.S. 507, 514, 128 S.Ct. 2020, 2025 (2008) ................................................ 57 United States v. Thomas, 488 F.2d 334 (6th Cir. 1973 ................................................................................ 45 United States v. Tobias, 662 F.2d 381, 386-87 (5th Cir. 1981) ................................................................. 25 United States v. Toler, 144 F.3d 1423, 1428 (11th Cir. 1998) ................................................................ 25 United States v. Williams 809 F.2d 1072 (5th Cir. 1987).............................................................................. 35 Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967)................... 44, 47 Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) ................................. 44, 45, 47 Statutes
1 U.S.C. 1-6 ....................................................................................................... 49 15 U.S.C. 782-dd(b) ....................................................................................... 38, 62 15 U.S.C. 78dd-2(a)(1)-(2) .................................................................................. 47 15 U.S.C. 78dd-2(a)(2) ........................................................................................ 50 15 U.S.C. 78dd-2(b) ............................................................................................. 50
xii
Case: 12-13009
Page: 13 of 88
15 U.S.C. 78-dd-2(h)(2)(A) ................................................................................. 48 18 U.S.C. 1956(a)(1)(B)(i) .....................................................................................4 18 U.S.C. 1956(a)(1)(B)(i) and 2. ..........................................................................4 18 U.S.C. 1956(h). ..................................................................................................4 18 U.S.C. 3231 ..................................................................................................... xii 18 U.S.C. 3553(c) ........................................................................................... 28, 69 28 U.S.C. 1002(32) .............................................................................................. 55 28 U.S.C. 1291 ..................................................................................................... xii 28 U.S.C. 1603(b) ................................................................................................ 56 28 U.S.C. 1346(b), 2671 .................................................................................... 55 Other Authorities ABA Standards relating to Fair Trial and Free Press. s 3.5 (f)(1968). ............... 35 DoddFrank Wall Street Reform and Consumer Protection Act, Pub.L. No. 111 203, 124 Stat. 1376, 1054 (2010), codified at 15 U.S.C. 78m(q)(1)(B)....... 56 Employee Retirement Income Security Act ........................................................... 54 Foreign Corrupt Practices Act ......................................................................... passim Six Amendment....................................................................................................... 27 U.S. Sentencing Guidelines Manual 3B1.1(b) ............................................... 64,65 U.S.S.G. 3C1.1 ..................................................................................................... 66 xiii
Case: 12-13009
Page: 14 of 88
U.S.S.G. 2B1.1(b)(9)(B) ...................................................................................... 62 U.S.S.G. 3B1.1 ................................................................................................ 64,67 U.S.S.G. 3B1.1(b) .......................................................................................... Rules FRAP 32(a)(7)(B), ................................................................................................... 73 63
xiv
Case: 12-13009
Page: 15 of 88
STATEMENT OF JURISDICTION The district court had jurisdiction of this case pursuant to 18 U.S.C. 3231 because the defendant was charged with an offense against the laws of the United States. The court of appeals has jurisdiction over this appeal pursuant to 28 U.S.C. 1291, which gives the courts of appeals jurisdiction over all final decisions of the district courts of the United States.
xv
Case: 12-13009
Page: 16 of 88
STATEMENT OF THE ISSUES ISSUE I THE TRIAL COURTS FAILURE TO MAKE ANY INQUIRY AS TO WHETHER THE JURY HAD BEEN EXPOSED TO
EXTENSIVE, ONGOING, HIGHLY PREJUDICIAL MID-TRIAL PUBLICITY WAS AN ABUSE OF DISCRETION AND DEPRIVED MR. DUPERVAL OF HIS SIXTH AMENDMENT RIGHT TO BE TRIED BY A FAIR AND IMPARTIAL JURY. ISSUE II THE TRIAL COURT ERRED IN NOT CHARGING THE JURY IN ACCORDANCE WITH MR. DUPERVALS PROFFERED
THEORY OF DEFENSE INSTRUCTION ISSUE III THE GOVERNMENTS SUBSTANTIAL INTERFERENCE WITH A POTENTIAL ESSENTIAL DEFENSE WITNESS, DEPRIVED MR. DUPERVAL OF HIS FIFTH AMENDMENT RIGHT TO DUE PROCESS OF LAW. ISSUE IV THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A 1
Case: 12-13009
Page: 17 of 88
REASONABLE
DOUBT
THAT
HAITI
TELECO
WAS
GOVERNMENT INSTRUMENTALITY AND THAT JEAN RENE DUPERVAL WAS A FOREIGN OFFICIAL AS REQUIRED TO PROVE THAT A VIOLATION OF THE FOREIGN CORRUPT PRACTICES ACT GENERATED PROCEEDS OF A SPECIFIED UNLAWFUL ACTIVITY A NECESSARY PREDICATE FOR THE CONVICTIONS ON THE MONEY LAUNDERING
CONSPIRACY AND SUBSTANTIVE MONEY LAUNDERING CHARGES. ISSUE V THE 108 MONTH SENTENCE IMPOSED BY THE DISTRICT COURT WAS BOTH PROCEDURALLY AND SUBSTANTIVELY UNREASONABLE ISSUE VI WHETHER CUMULATIVE ERROR COMPELS REVERSAL OF THE DEFENDANT'S CONVICTIONS.
Case: 12-13009
Page: 18 of 88
STATEMENT OF THE CASE Course of Proceedings and Disposition in the District Court On December 4, 2009, a grand jury in the Southern District of Florida returned an indictment charging the Appellant, Jean Rene Duperval, along with Joel Esquenazi, Carlos Rodriguez, Robert Antoine, and Marguerite Grandison with various offenses arising out of business transactions conducted between Telecomunications DHaiti and its officers and Terra Telecommunications Corp. and its officers(DE:3). On March 12, 2010, Mr. Antoine pled guilty and cooperated with the government. (DE:132;135). Two of Mr. Antoines co-conspirators, Juan Diaz and Jean Fourcand, were charged in separate informations, pled guilty and also cooperated with the government. On July 12, 2011, the indictment was superseded adding as defendants Cinergy Telecommunications, Inc. and its officers Washington Vasconez Cruz and Amadeus Richers, as well as Patrick Joseph, the former Director General of Telecomunications DHaiti, as defendants. (DE:419). The superseding indictment expanded the charges against Mr. Duperval by adding money laundering allegations related to purported bribe payments made to him by Cinergy Telecommunications, Inc. As a result, Mr. Duperval, Ms. Grandison, and Mr. 3
Case: 12-13009
Page: 19 of 88
Joseph were severed and set for trial in the early part of 2012. (DE:556). Mr. Esquenazi and Mr. Rodriguez proceeded to trial on July 18, 2011 and on August 5, 2011, Mr. Esquenazi and Mr. Rodriguez were found guilty. (DE:454;522). On July 12, 2011, the indictment was superseded for the second and final time, thereby charging Jean Rene Duperval, with the following offenses: Count 8 conspiracy to commit money laundering in relation to Cinergy Telecommunications, Inc. in violation of 18 U.S.C. 1956(h). Count 9 conspiracy to commit money laundering in relation to Terra Telecommunications Corp. in violation of 18 U.S.C. 1956(h). Counts 10-28 money laundering in in violation of 18 U.S.C. 1956(a)(1)(B)(i) and 2. (DE:685). Prior to trial, Marguerite Grandison entered into a diversionary disposition program and on February 24, 2012, Cinergy Telecommunications, Inc. was dismissed from the indictment. (DE:727). Following a seven day jury trial held March 1, 2012 through March 12, 2012, Mr. Duperval was found guilty on all counts. (DE:757). The defense moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of
Case: 12-13009
Page: 20 of 88
Criminal Procedure at the close of the governments case (DE:772:115-16) and again at the close of all of the evidence. (DE:773:111). On April 30, 2012, Mr. Duperval filed objections to the presentence investigation report which were argued at sentencing and overruled by the court. (DE:806; DE:850). On May 21, 2012, Mr. Duperval was sentenced to 108 months imprisonment to be followed by three (3) years of supervised release. A special assessment of $100.00 was imposed as to each count of conviction. (DE:816). He timely filed his Notice of Appeal on June 1, 2012 (DE:826) and is currently incarcerated serving his sentence at McRae CI, in Georgia.
Case: 12-13009
Page: 21 of 88
Statement of Facts From the latter part of June 2003 until his discharge in April, 2004, Jean Rene Duperval served as the Director of International Affairs and Deputy Director General of Telecommunications DHaiti (Teleco). (DE772:22). Teleco is a Haitian telecommunications company which, upon its founding in 1968 was granted and continues to maintain a monopoly to provide land line telephone service to the residents and businesses of Haiti. (DE:771:69-70). In his capacity as Director of International Affairs, Mr. Duperval was charged with the responsibility of administering telecommunications contracts that had been entered into between Teleco and international telecommunications providers including large providers such as AT&T and smaller carriers such as Terra Telecommunications (Terra) and Cinergy Telecommunications, Inc. and its related company, Uniplex Telecom Technologies Inc. (collectively Cinergy). Both Terra and Cinergy were located in Miami, Florida. (DE:770:71-72;772:129). During the course of administering Teleco's contracts with the international providers, Mr. Duperval would discuss and negotiate rates charged by Teleco, participate in discussions addressing payment and billing issues between Teleco and the various providers, and, generally, oversee the international business of Teleco. Mr. Duperval did not have the discretion or authority to enter into 6
Case: 12-13009
Page: 22 of 88
contracts on behalf of Teleco nor did he have the discretion or authority to unilaterally change or adjust the contractual per minute rates charged by Teleco to its international customers. Those powers rested exclusively with the Director General of Teleco who, during Mr. Duperval's tenure, was Alfonse Inevil. (DE:772:109-10). Robert Antoine became Director of International Affairs of Haiti Teleco in June or July of 2001. (DE:770:71). Prior to the time that he assumed that position at Teleco, Teleco had entered into two contracts with Terra. One of the contracts was a exclusive calling card agreement between Terra and Teleco (the 108 platform joint venture agreement) that existed for only a brief period of time. That contract was apparently terminated by the then Director General of Teleco, Patrick Joseph. On behalf of Teleco, Joseph then entered into a similar contract with Cinergy. The other Terra contract was a standard international telephone service agreement which allowed Terra to transmit landline traffic from the United States through Teleco to Haiti at a per minute rate. (Gov. Ex. 113 TERRA 2398; DE:770:160). This contract had a "most favored nations clause" pursuant to which Terra would be charged at a rate not greater than the lowest rate Teleco charged to other international carriers. (DE:772:141).
Case: 12-13009
Page: 23 of 88
During the course of its business relationship with Teleco, Terra provided Teleco with a significant amount of expensive telecommunications equipment. Pursuant to the standard contract, Terra was invoiced on a monthly basis for the minutes transmitted, and was expected to pay the invoices on a monthly basis. Early on during his employment at Teleco, Mr. Antoine became aware that Teleco contended that Terra was substantially in arrears in making payments for minutes which it had transmitted to Haiti pursuant to the contract. (DE:770:81). According to Mr. Antoine, his longtime friend, Jean Fourcand, who was Patrick Joseph's cousin and had assisted Antoine in getting his position at Teleco, approached him with a plan that would make them some money and at the same time, assist Terra in resolving it's delinquency issues with Teleco. 1 Ultimately,
after further discussions between Mr. Antoine and Joel Esquenazi, the Chief Executive Officer of Terra, Antoine agreed to fraudulently reduce the monthly number of minutes that Terra would be billed for. (DE:770:82). In exchange for his assistance, Antoine would be paid a sum equal to approximately half of the money Terra would be saving each month. (DE:770:83).
Although Antoine testified that it was Jean Fourcand who hatched the plan, (DE:770:168-70), Juan Diaz, who knew both Antoine and Fourcand well, contradicted Antoine. According to Diaz, Fourcand lacked the insight and sophistication to come up with an idea like this. The plan was Antoines idea. (DE:771:168). 8
Case: 12-13009
Page: 24 of 88
To effectuate the plan, Mr. Antoine created false invoices on a monthly basis thereby substantially reducing the number of minutes that were being charged to Terra. Between October 2001 and February 2003, Mr. Antoine
received approximately $400,000 to $500,000 from Terra pursuant to this illicit arrangement. (DE:770:85). In addition, Mr. Antoine also received prepaid calling cards that were provided by Terra. These cards were then sold by Mr. Fourcand, either at his store or through other local card distributors. Antoine would then receive a portion of the proceeds from the sale of the cards. To facilitate and cover up the payments from Terra to Antoine, Antoine enlisted the services of his friend, Juan Diaz. Mr. Diaz had a dormant company, J.D. Locator Services, which he had previously used in connection with exporting goods to Haiti. At Mr. Antoine's request, Mr. Diaz reactivated the company, opened a bank account in the company name, and began receiving monthly payments from Terra for Antoine's benefit. JD Locator Services entered into a
consulting agreement with Terra to justify the receipt of payments. (DE:770:83). In exchange for his assistance, Mr. Diaz was promised a seven percent commission on the payments from Terra he handled for Antoine. (DE:770:85). Mr. Diaz would usually pick up checks on a monthly basis from Terra's offices. He would deposit those checks into the JD Locator account and then, in 9
Case: 12-13009
Page: 25 of 88
exchange for his agreed to commission, distribute the remaining proceeds directly to Antoine or into Antoine's bank account. (DE:771:138). In addition to JD Locator Services, Antoine also used two other entities including A&G Import and Ernst Cadet & Assoc. to receive a few of the initial payments made pursuant to his arrangement with Terra. (DE:770:83). Mr. Antoine also had a number of dealings with Cinergy and its operating officers, including Washington Vasconez, Cecilia Zureta, and Amadeus Richers. Like Terra, Cinergy had a basic international service agreement with Teleco. (DE:770:88). In addition, Cinergy had a calling card agreement (the 104 platform) with Teleco. (DE:770:105). Under that agreement, Cinergy paid for and installed at Teleco the requisite telecommunications and technical equipment for the calling card operation to function. (DE:770:89). In addition, following the inception of the agreement, Cinergy purchased and prepaid for approximately 85 million minutes of phone time for the sum of $6 million. (DE:770:92;99). The calling card agreement entitled Cinergy to use a set number of the prepaid minutes per month. Minutes used by Cinergy in excess of the agreed figure would be billed at the prevailing contract rate. (DE:770:101). To protect its investment and guarantee Teleco's performance under the calling card contract, Cinergy convinced Teleco to provide a $6 million letter of 10
Case: 12-13009
Page: 26 of 88
credit for the benefit of Cinergy. Antoine, despite being employed by Teleco, lobbied extensively on Cinergys behalf for Teleco to agree to provide the letter of credit which benefited only Cinergy. In exchange for his efforts in securing the letter of credit (for the benefit of Cinergy and to the detriment of Teleco), Antoine received a total of $150,000. Cinergy paid this money to Antoine through Juan Diaz's company, JD Locator Services. (DE:770:93-96). In addition to his own dealings, Mr. Antoine assisted Patrick Joseph in receiving payments from Cinergy by picking up checks and delivering them to Joseph. Juan Diaz was also involved in handling some of the Cinergy/Uniplex payments to Patrick Joseph. (DE:770:96-97). After Patrick Joseph fired Mr. Antoine from his position at Teleco in March or April 2003, Antoine was offered a consulting position with Cinergy. (DE:770:113). To conduct his new consulting business, Antoine opened a Florida corporation known as Process Consulting Inc. (DE:770:116). After Antoine was fired from Teleco, he was replaced by Alfonse Inevil as Director of International Affairs. Mr. Inevil, who had previously been the
Director of Planning, remained in that position for only a few months before being promoted to the position of Director General upon Patrick Joseph's resignation. (DE:770:113-15). 11
Case: 12-13009
Page: 27 of 88
At the time that Mr. Inevil began serving as Director of International Affairs, there was an ongoing dispute between Terra and Teleco concerning significant sums of money allegedly owed by Terra to Teleco. (DE:772:26). As a result of this dispute, at some point in June 2003, Teleco disconnected Terra's lines. (DE:772:147). In late June 2003, when Mr. Duperval became Director of International Affairs, Teleco was still dealing with numerous issues concerning Terra, including the alleged delinquency and the disconnection of Terras circuits. Shortly after he assumed office, Mr. Duperval attended a meeting held at Teleco between Mr. Inevil and Mr. Esquenazi. During the meeting, ongoing issues were discussed and Terra again made it known that it had been and was continuing to be overcharged by Teleco for the minutes it was sending to Haiti. (DE:772:140-45). Mr. Duperval carefully reviewed the overcharging allegations and detailed written backup documentation provided by Terra. That, coupled with a review of the specific terms of the Terra/Telco contract (particularly the "most favored nations provision), showed that Terra was correct. For a number of years Terra had been charged at a rate significantly higher than that which was called for under the contract, i.e., a rate not greater than the lowest rate charged to other
12
Case: 12-13009
Page: 28 of 88
international carriers. 2 The total amount of the overcharges far exceeded one million dollars. (DE772:145). To resolve the ongoing dispute with Terra, Teleco agreed to reconnect Terra's lines on the condition that Terra would prepay for minutes that it anticipated using in the future. (DE:772:148). In addition, Teleco agreed (with the express approval of Mr. Inevil, the Director General) to downwardly adjust the per minute rate Teleco had been charging Terra so that it more nearly approximated the lowest rate charged to other international carriers.
(DE:772:156). The initial rate adjustment effective in November 2003 lowered the rate to $0.075 per minute. That figure was subsequently adjusted again, and by December 2003, a permanent rate of $0.07 per minute was in effect. (DE:772:78). Even that rate was still slightly higher than the lowest rate Teleco was then charging other international providers. (DE:772:163). During the latter portion of 2003, Terra became aware that it had also been overcharged for minutes billed by Teleco through UT Starcom. Starcom was a limited range calling program that was initiated by Teleco in anticipation of
For example, at various junctures during the relevant time frame through June 2003, Cinergy was charged $0.065 per minute; Haiti direct $0.08 per minute; Mt. Salem $0.06 per minute; Toscana $0.05 per minute. Terra, on the other hand, was routinely charged between $0.07 and $0.15 cents per minute. (DE:772:135;139;143;160; Defense Ex. D). 13
Case: 12-13009
Page: 29 of 88
increased telephone traffic attributable to the celebration of the anniversary of Haiti's independence. Given the limited calling range of the Starcom system, minutes were supposed to be billed at the prevailing Teleco contract rate for land line calls rather than the higher rate customarily charged for full range cellular calls. However, for a number of months, Teleco had billed minutes sent through by Terra through Starcom at a higher rate, i.e., $0.15 per minute, rather than at the land line rate. When Terra brought this error to Teleco's attention, the rate was corrected and the appropriate credit was given to Terra in December 2003. From that point forward Terra was billed for minutes sent through Starcom at the correct rate. (DE:772:158-63). In October 2003, Terra's General Counsel, James Dickey, incorporated Telecom Consulting Services, Inc. (Telecom Consulting). (DE:772:110). Mr. Duperval's sister, Marguerite Grandison, was designated as the president of Telecom Consulting and signed a consulting agreement with Terra on behalf of the newly formed corporation. 3 (DE:772:49). At Mr. Esquenazis request, his
business banker, Pedro Lacau, visited Ms. Grandison at her home and had her sign the necessary documents to open a business account for Telecom Consulting. (DE:769:128). An account was then opened at Southtrust Bank. (DE:769:130).
14
Case: 12-13009
Page: 30 of 88
Between November 2003 and June 2004 Terra initiated wire transfers totaling approximately $75,000 to the Telecom Consulting account. (DE:772:61). In late June and July 2003, there was also an ongoing dispute between Teleco and Cinergy concerning the fact that Cinergy was routing a substantial number of calls through a smaller carrier, Toscana. Toscana had a very favorable contract with Teleco that allowed it to purchase minutes at the rate of five cents per minute. The Cinergy/Toscana arrangement was negatively impacting Teleco's monthly revenues since Cinergy was sending minutes thru Toscanas circuits and paying Toscana at a lower rate than if Cinergy was sending the traffic through its own circuits and paying Teleco directly. To resolve the dispute, Teleco, through Mr. Inevil, approved a slightly lower per minute rate than what Teleco had been charging Cinergy with the understanding that Cinergy would send no further minutes through Toscana's circuits. The resolution ended up costing Cinergy more money each month and increased Telecos monthly cash flow. (DE:772:136140). During the time that Mr. Duperval was employed at Teleco, a major concern was the $6 million letter of credit that ran in favor of Cinergy. Despite Cinergy's insistence and wishes, Mr. Inevil and Mr. Duperval (unlike his predecessor Mr.
Ms. Grandisons prior employment history reflected no involvement or 15
Case: 12-13009
Page: 31 of 88
Antoine) were unwilling to support and lobby for an extension of the letter of credit because it was simply a benefit to Cinergy and a huge, unnecessary liability for Teleco. (DE:773:3-6). Although the letter of credit was not renewed, Teleco found it financially profitable to continue to do business with Cinergy under each of the existing contracts. To comply with the terms of the calling card contract, Teleco was required to repay Cinergy $890,000 for the telecommunications and technical equipment Cinergy had provided. (DE:772:171). The debt was repaid by Teleco crediting Cinergys account with minutes with a value equal to the amount of the debt. 4 When the debt was repaid, Teleco became the owner of the equipment. (DE:772:176). Given the profitability of the calling card arrangement with Cinergy, Teleco ordered an additional million prepaid calling cards from Cinergy in late 2003. To pay for the calling cards, Teleco credited Cinergy's account with the appropriate number of minutes. Additional minutes were credited at the same time to adjust for
experience in the telecommunications industry. 4 The total number of minutes credited over an approximate four month period beginning in late 2003 was 13,692,307. The value of the minutes was $890,000, i.e., the exact amount Teleco owed Cinergy for the equipment. (DE:772:180-81). 16
Case: 12-13009
Page: 32 of 88
unused minutes still outstanding on cards previously sold by Teleco in Haiti and older cards remaining in its inventory. 5 Beginning in late 2003, Cinergy made a number of payments to or on behalf of Mr. Duperval. The initial payments totaling $142,640 were made to a company named Crossover Records, a music business Mr. Duperval had been involved in with his brother, Lionel. Subsequently, six payments totaling $257,339 were made to Telecom Consulting, Inc. (Gov. Ex. 601). The payments to Crossover and Telecom Consulting were reflected on internal documents prepared and retained by Cinergy. These internal documents indicated that the payments were for the purchase of phone minutes for traffic sent to Haiti. In addition, two payments totaling $22,532.00, were made by Robert Antoine to Mr. Duperval via Antoine's company, Process Consulting. DE770:124-25). According to Mr. Antoine, the money that was being paid by Cinergy to Crossover Records and Telecom Consulting was in exchange for Mr. Duperval's efforts to continue the favorable contracts that Cinergy had with Teleco. Antoine (Gov. Ex. 51 at HAI 010324 & 007553;
The calling cards entitled people in Haiti to place calls to the United States through Cinergys circuits. Teleco compensated Cinergy by crediting it for each minute sent at the same rate Teleco was charging Cinergy for minutes sent to Haiti. Teleco sold the cards in Haiti at a price equal to approximately $0.17 per minute. Telecos profit was approximately $0.11 per minute on the cards. 17
Case: 12-13009
Page: 33 of 88
testified that Cinergy was concerned that once Teleco paid off the debt owed to Cinergy for the equipment that was part of the calling card platform, Teleco would be free to utilize the equipment for its own purposes and could then enter into a calling card arrangement with any other carrier. Antoine also testified that to secure Mr. Duperval's assistance and cooperation, he had traveled from the United States to Haiti and met with Mr. Duperval at Mr. Antoine's residence in Haiti. At that meeting, he received assurances that Mr. Duperval would do what he could to help. Mr. Duperval and Antoine then agreed on the compensation that would be necessary to secure Mr. Dupervals cooperation. Antoine then reported the results of the meeting back to the executives at Cinergy. 6 Of the $142,640 that was paid by Cinergy to Crossover Records, approximately $93,000 was subsequently transferred to Mr. Duperval's personal account at University Credit Union via three wire transfers in October/November 2003. (Gov. Ex. 603). Of the monies paid by Terra ($75,000) and Cinergy ($257,340) to Telecom Consulting, substantial sums were transferred to Mr. Duperval's personal accounts at University Credit Union or Wachovia Bank. In
Juan Diaz had a different version. It was his understanding that Mr. Duperval was cutting minutes and reducing Cinergys monthly bills. No evidence of this was presented at trial. According to Diaz, Antoine also told him that with regard to Terra, Mr. Duperval was doing the same thing Antoine had been doing. (DE:771:160). That too is belied by the record. 18
Case: 12-13009
Page: 34 of 88
addition, Telecom Consulting made other payments for Mr. Duperval or his family's benefit. For example, the approximate sum of $100,272 was paid by Telecom to Statewide Title as part of the purchase price for a residence in Broward County, Florida and $3956 was paid to the Florida prepaid college tuition program. (Gov. Ex. 609). IRS Special Agent Charles Hyacinthe interviewed Mr. Duperval at Villa Creole Hotel in Haiti in December 2005. (DE:772:16). According to Hyacinthe, during the course of the interview, Mr. Duperval told him that he had been asked by President Aristide to take the position of Director of International Relations. (DE:772:22). He also told him that he had written a letter to Cinergy informing them that Teleco was going to cancel the contract because of money owed by Cinergy. 7 After he sent that letter, he went to Miami and met with the Cinergy executives and Robert Antoine at Cinergy's offices. During that meeting he was offered two cents minute to continue the Cinergy Teleco contracts. He accepted the offer with the understanding that it would generate approximately $10,000$12,000 per month. (DE:772:23-24). According to the agent, Mr. Duperval also told him about the payment arrangement between Cinergy and Telecom
No such letter was ever introduced by the government at trial. Nor did the evidence at trial establish that Cinergy was indebted to Teleco. To the contrary. 19
Case: 12-13009
Page: 35 of 88
Consulting and admitted that Telecom performed no actual services for Cinergy. (DE:772:25-26). Mr. Duperval estimated that he had received a total of
approximately $150,000 from Cinergy and was paid a monthly salary of $2,500 by Telecom Consulting. (DE:772:26). Agent Hyacinthe recalled that with regard to Terra, Mr. Duperval informed him that Mr. Inevil had wanted to terminate the Terra/Teleco contract. Terra claimed it was owed over $1 million by Teleco and provided backup documentation. (DE:772:26). Mr. Duperval decided to continue with the contract and for his assistance in resolving the matter, he received $10,000 and a Rolex watch. Mr. Duperval did not mention receiving any other payments from Terra. (DE:772:27). Louis Gary Lissade, a practicing attorney and former Haitian Minister of Justice, was qualified by the court as an expert in Haitian law and public administration and testified on behalf of the government with regard to the legal status of Teleco. (DE:771:67). Lissade explained that in 1968 Teleco was
founded as private company and granted a monopoly to serve as the land line telephone service provider in Haiti. (DE:771:69-71). About three to four years later, the Bank National Republic of Haiti (BNRH) became the owner of 97% of
Cinergy often advanced money and equipment to Teleco and at least until early 20
Case: 12-13009
Page: 36 of 88
the Teleco shares of stock. (DE:771:71-72). BNRH evolved into what is now the Central Bank of Haiti---the Haitian equivalent of the Federal Reserve in the United States. (DE:771:72-73). When BNRH acquired the shares, Teleco's official designation should have been changed from an S.A. (a designation indicating private ownership) to an S.A.M (a designation indicating a corporation that has mixed government and private ownership). (DE:771:74). However, unlike any other company in which the Haitian government had acquired an ownership interest, no law was ever passed officially designating Teleco as an S.A.M. Lissade explained that the Teleco Board of Directors (consisting of five members from the government and two members from the private sector) is appointed by an executive order signed by the President of Haiti, the prime minister, and other cabinet members. (DE:771:75). According to Lissade, the General Director of Teleco is appointed by the President. The executive order confirming that appointment (for example the order appointing Mr. Joseph) is signed by the President, the prime minister and the ministers of public works, etc. (DE:771:75).
2004 was a creditor of Teleco. 21
Case: 12-13009
Page: 37 of 88
Mr. Lissade also testified that the letter designating Mr. Duperval as Deputy Director had been signed by the Minister of Public Works and Transportation and Communication; and that the letter terminating Mr. Duperval from his position had been signed by the president of Teleco's board. (DE:771:88-89; Gov. Ex. 415T). During his testimony, Mr. Lissade was shown insurance documents and related correspondence, including a letter from Mr. Esquenazi to an insurance broker suggesting they could get a letter from the president of Teleco confirming Teleco is an instrumentality of the Haitian government. (DE:771:94). Lissade explained that an asset disclosure law passed in 2008 and applicable to Teleco and its Director and Deputy Director was declarative of the long standing understanding that Teleco was part of the public administration. (DE:771:98101). 8
Contrary to Lissades opinion, the record demonstrates that in virtually all aspects of its business, Teleco functioned as a private company. For example, Teleco can be sued in its own name, can bring a lawsuit in its own name, pays for and is represented by the attorneys of its choosing, is not funded by the Haitian annual budget, opened a private pension fund account in the United States, its employees do not receive the same benefits as government employees, and to overcome cash flow issues it has borrowed money or been funded by private concerns including Terra and Cinergy. In addition, it contracts on its own behalf, the Haitian government is neither a party to Telecos contracts, or liable for a breach. (DE:771:113). 22
Case: 12-13009
Page: 38 of 88
In addition to testifying about the legal status of Teleco, Lissade also opined that two provisions of the Haitian Penal Code (Article 137 and 140) applied respectively to the Teleco Director of International Affairs and to people who bribe public agents or officials such as Teleco Director of International Affairs. (DE:771:95-98). Mr. Duperval testified that as the Director of International Affairs at Teleco, it was his job to administer and manage contracts that had been entered into by the Director General. Only the Director General had the power to enter into contracts. As Director of International Affairs, he did not have the power to enter into or modify contracts with the carriers. (DE:772:129-30). Mr. Duperval explained that his understanding of the reason he was receiving money from Terra and Cinergy was that they showed their appreciation for the way [he] was administering their contracts. Nothing illegal or beyond the scope of the contracts was ever performed. (DE:773:16-17).
Nor does it guarantee performance as evidenced by the Teleco/Cinergy $6 million letter of credit. 23
Case: 12-13009
Page: 39 of 88
STANDARDS OF REVIEW ISSUE I A trial judges decision as to whether to make an inquiry to determine if the accused has been prejudiced by the jurys exposure to media coverage concerning a trial the reviewed for abuse of discretion. United States v. Harrelson, 754 F.2d 1153, 1163 (5th Cir. 1985). ISSUE II A deferential standard of review is applied to a trial courts jury instructions. United States v. Puche, 350 F.3d 1137, 1148 (11th Cir. 2003). This Court reviews the trial courts refusal to give a requested theory of defense instruction to determine (1) if the requested instruction is a correct statement of the law; (2) whether the requested instruction was adequately covered by other instructions given in the case; (3) whether there is any evidence in the record to support the requested instruction; and (4) whether the failure to give the requested instruction seriously impaired the defendant's ability to present an effective defense. United States v. De La Mata, 266 F.3d 1275, 1298 (11th Cir.2001). ISSUE III Claims of government misconduct, including claims of substantial interference with a defense witness are reviewed de novo. 24 United States v.
Case: 12-13009
Page: 40 of 88
Tobias, 662 F.2d 381, 386-87 (5th Cir. 1981). ISSUE IV This Court reviews de novo the sufficiency of evidence to support a conviction. United States v. Pineiro, 389 F.3d 1359, 1367 (11th Cir. 2004); United States v. Toler, 144 F.3d 1423, 1428 (11th Cir. 1998). The Court must examine the evidence in the light most favorable to the government to determine whether a reasonable jury could have concluded beyond a reasonable doubt that the defendant was guilty of the crimes charged. Toler, 144 F.3d at 1428. A guilty verdict can only stand if there is substantial evidence to support it. Id. at 1426, 1428. ISSUE V The review of a sentence for reasonableness is analyzed under a deferential abuse of-discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007). A district court's factual findings underlying a sentencing enhancement are reviewed for clear error and the application of those facts to the guidelines is reviewed de novo. United States v. McGarity, 669 F.3d 1218, 1232 (11th Cir.) ISSUE VI In addition, where cumulative error is reviewed by this Court, the total prejudicial effect of the trial errors must be weighed to determine whether reversal is 25
Case: 12-13009
Page: 41 of 88
warranted. United States v. Dohan, 508 F.3d 989, 993 (11th Cir. 2007) (cumulative impact of multiple evidentiary and instructional errors reviewed de novo).
26
Case: 12-13009
Page: 42 of 88
SUMMARY OF THE ARGUMENT The trial courts failure to make any inquiry as to whether the jury had been exposed to extensive, detailed, ongoing, extrajudicial, highly prejudicial mid-trial publicity was an abuse of discretion and deprived Mr. Duperval of his Six Amendment right to be tried by a fair and impartial jury. The trial court also erred in failing to make inquiry when one of the jurors sent a note to the judge in the middle of trial suggesting she had obtained extrajudicial knowledge of facts of the case. The trial court erred in not charging the jury in accordance with Mr. Dupervals proffered theory of defense instruction, which explained that it is an exception to the Foreign Corrupt Practices Act FCPA to pay or provide any facilitating payment to expedite or secure the performance of a routine governmental action by a foreign official. The proffered instruction was a correct statement of the law, was supported by Mr. Dupervals testimony that the payments were made in appreciation of his administering the contracts, and was not adequately covered by other instructions delivered by the court. The government interfered with a favorable defense witness prompting a revision of a declaration written by then Prime Minister Bellerive which substantially contradicted the governments position that Teleco was an 27
Case: 12-13009
Page: 43 of 88
instrumentality of the Haitian government. In so doing, the government interfered with a favorable defense witness and violated Mr. Dupervals right to due process. The evidence was insufficient to prove beyond a reasonable doubt that Haiti Teleco was a government instrumentality and that Jean Rene Duperval was a foreign official as required to prove a charge of money laundering related to the proceeds of a violation of the FCPA. The 108 month sentence imposed by the district court was both procedurally and substantively unreasonable. The trial court erred in applying numerous
sentencing enhancements including adding two levels on grounds that a substantial part of the fraudulent scheme was committed outside the United States, three levels for managing five or more participants where there was no evidence the individuals Mr. Duperval allegedly supervised were criminally responsible, two levels for obstruction of justice where there was no evidence Mr. Duperval willfully perjured himself or provided a materially false statement to law enforcement. Mr. Dupervals sentence was also substantively unreasonable based on the factors mandated by 18 U.S.C. 3553(c) and resulted in an unwarranted sentencing disparity between Mr. Duperval and his similarly situated codefendants.
28
Case: 12-13009
Page: 44 of 88
ARGUMENT AND CITATIONS OF AUTHORITY ISSUE I The trial courts failure to make any inquiry as to whether the jury had been exposed to extensive, ongoing, highly prejudicial mid-trial publicity was an abuse of discretion and deprived Mr. Duperval of his Six Amendment right to be tried by a fair and impartial jury. The second superseding indictment returned by the grand jury in this case made a number of specific allegations regarding corruption at Haiti Teleco involving not only Teleco officials such as Mr. Duperval and Patrick Joseph, but also by letter designation, political figures including Venel Joseph, the father of Patrick Joseph and former chairman of the Central Bank of Haiti, and Jean Bertrand Aristide, the former President of Haiti. Given these very specific
allegations of corruption extending to the highest level of the Haitian government, it was of paramount concern to the defense to determine whether potential jurors had knowledge of or personal feelings regarding the case, corruption in Haiti, the political situation in Haiti, or Mr. Aristide that would hinder the jurors ability to sit as fair and impartial judges of the facts in this case. Jury selection was conducted on Thursday, March 1, 2012. At the
beginning of the jury selection process, defense counsel requested that the court 29
Case: 12-13009
Page: 45 of 88
not only make inquiry of the prospective jurors concerning their knowledge of or dealings in Haiti, but also given recent media coverage concerning Jean Bertrand Aristide and Haiti, whether they had been exposed to that coverage. (DE:769:45). In response to a very general inquiry made by the court, two prospective jurors indicated that they had read something about either the case or President Aristide, but could not recall specifics. (DE:855:68-70). Following jury selection, the case was recessed until Monday, March 5, 2012. (DE:855:137). On Sunday, March 4, 2012, a very extensive and detailed article entitled Bribe Probe Zeroes in on Aristide appeared on the front page of the Miami Herald. The article also was prominently featured on the Miami Herald website. (Mt.S.R. Ex. 2). The article mentioned Mr. Duperval and Patrick Joseph by name, provided detailed allegations of corruption at Teleco and implicated Aristide. At the beginning of the court proceedings on Monday, March 5, 2012, defense counsel brought this extensive media coverage to the attention of the court and requested that the jurors who had been selected the previous Thursday be individually voir dired to determine whether they had seen or read the newspaper or website articles, discussed their contents, and if so, how it may affect their ability to serve as a fair and impartial juror. The court denied that request. (DE:769:2-8;17-19). 30
Case: 12-13009
Page: 46 of 88
On Tuesday, March 6, 2012, the court indicated that it had received a note from juror, Clarinda Gil. (DE770:2). In her note, Ms. Gil wrote, "I am aware of Mr. Aristides problems in Haiti, charges of corruption, etc, etc." (DE:770:129). Given the fact that during jury selection Ms. Gil failed to indicate any knowledge of the situation in Haiti or President Aristide and in light of the extensive media coverage which appeared over the weekend between jury selection and the commencement of trial, counsel requested the court to individually question Ms. Gil to determine exactly what knowledge she had, how she obtained it, and whether it would impact her ability to serve as a fair and impartial juror in the case. (DE:770:129). The court failed to make the requested inquiry. Beginning on the evening of March 7, 2012, a number of articles appeared on the Internet describing in great detail how Patrick Joseph's father had been executed in Haiti in apparent retaliation for his sons cooperating with the government in its investigation of corruption in Haiti. (Mt.S.R.). The following morning, March 8, 2012, an article appeared on the front page of the Miami Herald titled Father of Man in Aristide Probe is Slain. (Mt.S.R. Ex. 4). Again
the article went into great detail not only about the specifics of this case and the execution of Mr. Josephs father who was brutally shot in the mouth, but also recounted details of the probe into President Aristide, corruption in Haiti, Mr. 31
Case: 12-13009
Page: 47 of 88
Duperval and Haiti Teleco. It also included the observations of a former Assistant United States Attorney that the execution was a clear message to the witnesses to keep their mouths shut. By the time these articles appeared, there had been extensive testimony and evidence at trial concerning the fact that President Aristide appointed Patrick Joseph as General Director of Teleco. (DE:770:69). Moreover, the jury would hear testimony from a government agent that Mr. Duperval told him he had met with President Aristide and that Aristide was responsible for Mr. Duperval obtaining his position at Teleco. (DE:772:22). The jury also heard testimony during trial to the effect that Patrick Joseph had been bribed by Cinergy and that he was assisted by government witnesses Robert Antoine and Juan Diaz in that endeavor. (DE:770:96). Given this inherently prejudicial media coverage recounting allegations of corruption tied to this case and extrajudicial accounts of witness intimidation and a brutal execution, Mr. Duperval, at the beginning of the days proceedings on March 8, 2012, moved for a mistrial or in the alternative, that each juror be individually questioned to determine whether they had seen or read any of the media coverage and whether it would impact their ability to be fair and impartial. (DE:772:6). The court denied the motion for mistrial and the request to interview 32
Case: 12-13009
Page: 48 of 88
jurors and proceeded with trial. (DE:772:7-8). Mr. Duperval renewed the motion and request for juror inquiry at the noon recess. Those motions were also denied. (DE:772:90). The Sixth Amendment to the United States Constitution guarantees an accused the right to trial by jury. That right includes the critical guarantee that the accuseds trial be held before, and his fate decided by, a panel of impartial, indifferent jurors. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639 (1961). As the Supreme Court in Dowd, noted, in the ultimate analysis, only the jury can strip a man of his liberty or life. Thus, the verdict must be based only on the evidence developed at trial. Id. at 722 (citing Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed 2d 654 (1960)). This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. Dowd, 366 U.S. at 722. Moreover, the right to be tried before an impartial tribunal is one of the few rights that is not subject to the doctrine of harmless error. Oswald v. Bertrand, 374 F.3d 475, 482 (7th Cir. 2004). To insure the right to a fair trial, the court has the duty to inquire into possible juror prejudice in those situations when a jury is exposed to some type of media publicity that potentially affects their impartiality. In this situation, the courts of appeals have imposed an affirmative duty on the presiding trial judge to inquire to 33
Case: 12-13009
Page: 49 of 88
determine the possible prejudicial impact of extraneous media information the jury may have seen, heard, or read. Voir dire is required if there are serious questions of possible prejudice. United States v. Herring, 568 F.2d 1099 (5th Cir. 1978). For example, in Herring, Gregg Allman, a prominent rock musician testifying under a grant of immunity, implicated defendant Herring in narcotics related activity. On the day following Allmans testimony, articles appeared in the local newspaper indicating that, perhaps as a result of his testimony in the case, Mr. Allman was being heavily guarded, purportedly as a result of a death threat. Id. at 1102. That morning, defense counsel brought the article to the trial judges attention and asked the court to ask jurors whether they had read the paper, and if so, to make further inquiry to determine whether it would influence their ability to make an impartial decision in the case. Over defense counsels objection, the trial court declined to question the jury. Id. In reversing Herrings conviction, the court held that the
district court committed reversible error by failing to make the appropriate inquiry. Id. at 1105. The court also noted that the district courts instructions to the jury were inadequate where it only instructed the jury to disregard external information and that the court should have examined each juror separately in the presence of counsel to determine how much contact the jury members had with the damaging publicity and how much prejudice to the defendant had resulted from that contact 34
Case: 12-13009
Page: 50 of 88
assuming that any had occurred. Id.9 Subsequent decisions are in accord with Herring. United States v. Williams, 809 F.2d 1072 (5th Cir. 1987) held it was reversible error for the trial court not to inquire of the possible contamination of mid-trial publicity where there was extensive media coverage, which included front page headlines and a color photograph of the defendants being led away in handcuffs; and local television and radio news programs, following testimony that the defendants were involved in drug deals even during the trial. In reaching its decision, the Court reasoned that the nature of the material went beyond the record and raised serious questions of possible prejudice despite the fact that the judge explicitly instructed the jury not to read or listen to anything pertaining to this case. Id. at 1092. See United States v. Aragon, 962 F.2d 439,446-47 (5th Cir. 1992) (holding the district court abused its discretion in failing to adequately inquire whether the jury had been tainted and
The Herring court noted with approval a procedure recommended by the ABA when extraneous and potentially prejudicial media matter has been brought to the jurys attention: If it is determined that material disseminated during the trial goes beyond the record on which the case is to be submitted to the jury and raises serious questions of possible prejudice, the court may on its own motion or shall on motion of either party question each juror, out of the presence of the others, about his exposure to that material. The examination shall take place in the presence of counsel, and an accurate record of the examination shall be kept. ABA Standards relating to Fair Trial and Free Press s 3.5(f) (1968). 35
Case: 12-13009
Page: 51 of 88
whether it was prejudicial where, although the jury was told not to read about the trial, the court was apprised of the existence of a highly prejudicial article that went well beyond the record and rejected the defendants motion for voir dire and made no inquiry). Following the selection and impaneling of the jury on March 1, 2012, extensive media coverage appeared during the ensuing three day recess. Mr. Duperval promptly requested that the trial judge make inquiry of the jurors to determine whether they had been exposed to the coverage. The court did nothing. The court again abdicated its responsibility to undertake an appropriate inquiry when Ms. Gil brought her situation to the courts attention. Finally, and worst of all, the court failed to make any inquiry when the March 7 and March 8, 2012 media flood dealing with the execution of Mr. Josephs father, corruption at Haiti Teleco, Mr. Dupervals situation, and a variety of other extrajudicial information directly impacting the case being tried. The courts refusal to make any inquiry when it was clearly necessary to insure Mr. Dupervals right to be tried by a fair, impartial jury was a clear abuse of discretion. Mr. Dupervals convictions must be vacated. Herring, 568 F.2d 1099; Williams, 809 F.2d 1072; Aragon, 962 F.2d 439.
36
Case: 12-13009
Page: 52 of 88
ISSUE II The trial court erred in not charging the jury in accordance with Mr. Dupervals proffered theory of defense instruction. The proffered instruction was a correct statement of the law, supported by the evidence and not adequately covered by other instructions delivered by the court. A criminal defendant has the right to a jury instruction on his theory of defense, separate and apart from instructions given on the elements of the charged offense. See Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir.1995). If the proposed instruction presents a valid defense and there has been some evidence adduced at trial to support the defense, a trial court may not refuse to charge the jury on that defense. Ruiz, 59 F.3d at 1154. The burden of presenting evidence sufficient to support a jury instruction on a theory of defense is extremely low. Id. [T]he defendant is entitled to have presented instructions relating to a theory of defense for which there is any foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility. United States v. Lively, 803 F.2d 1124, 1126 (11th Cir.1986) (internal marks omitted). In reviewing the evidence adduced, the court must view the evidence in the light most favorable to the accused. Ruiz, 59 F.3d at 1154. 37
Case: 12-13009
Page: 53 of 88
The primary underlying theory of the governments money-laundering conspiracy and substantive money laundering charges against Mr. Duperval was that the funds that Mr. Duperval purportedly laundered were the proceeds of the specified unlawful activity of violations of the FCPA 15 U.S.C. 782dd(a)(1). During the course of his trial testimony, Mr. Duperval admitted that although he had received substantial sums of money from both Terra and Cinergy, the payment of that money was as a result of him having competently performed a routine governmental action, i.e., the administration of a contract in accordance with its terms. (DE:773:16-17). Mr. Duperval's explanation of why he received the
payments brought his receipt of the payments within the exception to the FCPA'S prohibition on bribery of foreign officials found in 15 U.S.C. 782-dd(b). That subsection exempts facilitating payments to expedite or secure the performance of a routine governmental action by a foreign official, political party, or party official. Accordingly, Mr. Duperval requested that the court charge the jury in accordance with the statutory exception and the following theory of defense instruction: Defense Proposed Jury Instruction 2 Theory of Defense However, it is not a violation of the FCPA to pay or provide any facilitating 38
Case: 12-13009
Page: 54 of 88
or expediting payment to a foreign official, political party, or party official the purpose of which is to expedite or secure the performance of a routine governmental action by a foreign official, political party, or official. The term "routine governmental action" means only an action which is ordinarily and commonly performed by a foreign official in a. obtaining permits, licenses, or other official documents to qualify a person to do business in a foreign country; processing governmental papers, such as visas and work orders; providing police protection, mail pick-up and delivery, or scheduling inspections associated with contract performance or inspections related to transit of goods across country; providing phone service, power and water supply, loading and unloading cargo, or protecting perishable products or commodities from deterioration; or actions of a similar nature.
b. c.
d.
e.
The term "routine governmental action" does not include any decision by a foreign official whether, or on what terms, to award new business to or to continue business with a particular party, or any action taken by a foreign official involved in the decision-making process to encourage a decision to award new business to or continue business with a particular party. The court denied the requested instruction. (DE:772:118).
39
Case: 12-13009
Page: 55 of 88
The requested theory of defense instruction should have been given. To begin with, it is a correct statement of the law. The language in the instruction was extracted verbatim from the statute. Moreover, there was ample evidence in the record to support the giving of the instruction. Mr. Duperval testified that the payments were made because he performed a routine governmental function, i.e., administering the Terra and Cinergy contracts in accordance with their terms. (DE:773:16-17). He also testified that only the Director General could enter into contracts (award new business) or extend contracts (continue business) or authorize a rate reduction, etc. and that he did not have that authority. (DE:773:67;130). Finally, the theory of defense was not adequately covered by
the other instructions delivered by the court. As we have demonstrated, the requested instruction should have been given by the trial court. The courts failure to give the instruction flatly deprived Mr. Duperval of his right to avail himself of a defense based on the language of the FCPA itself. His convictions must therefore be reversed. See e.g., Mathews, 485 U.S. at 62 (holding even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment); Ruiz, 59 F.3d 1154 (holding the courts failure to give a mistake of fact defense instruction constituted 40
Case: 12-13009
Page: 56 of 88
reversible error because the defense theory was not adequately covered by the pattern instructions). ISSUE III Five days after the jury returned its verdict against the severed codefendants, Mr. Esquenazi and Mr. Rodriguez, the Government disclosed for the first time, the existence of a declaration authored and signed on July 26, 2011 by Jean Max Bellerive, Haitis then Prime Minister and acting Minister of Justice and Public Safety. In his declaration, Prime Minister Bellerive explained the origins and status of Teleco and disclosed inter alia, that (a) Teleco is not nor will be an organization subject to public law; (b) Teleco has never been and until now is not a State enterprise; and (c) the by-laws of Teleco were never amended to reflect the Governments acquisition of Teleco shares and such an amendment was essential to allow the State to appoint its representatives to [Telecos] Board of Directors. (DE:543:1-4). The official position of the Haitian government set forth in the declaration undermined the governments theory of the case against Mr. Duperval (as well as Mr. Esquenazi and Mr. Rodriguez) in at least two important respects: (1) it substantially contradicted the governments position that Teleco was an instrumentality of the Haitian government within the ambit of the proscriptions 41
Case: 12-13009
Page: 57 of 88
of the FCPA; (2) it established that Teleco and its officers and employees were not subject to public law, including Haitian anti-bribery laws applicable to public officials. Moreover, the substance of the declaration contradicted the expert
testimony of Mr. Lissade given at the Esquenazi/Rodriguez trial and which would be repeated nearly verbatim at Mr. Dupervals trial. The declaration appears to have been drafted in response to a letter sent to Bellerive by an attorney representing Mr. Dupervals codefendant, Patrick Joseph, a former Teleco official awaiting trial with Mr. Duperval on the Second Superseding Indictment in this case. (DE:581-4). Specifically, on July 19, 2011, the attorney sent a letter to Mr. Bellerive inquiring about the status of Teleco, and asking whether Teleco is a private company or a government owned company. (DE:581:4). In response, on July 26, 2011, seven days after the letter was sent, Mr. Bellerives office forwarded the declaration to Mr. Josephs attorney along with a cover letter. (DE:581:5;2). The cover letter acknowledged the July 19, 2011 letter and explained that the declaration was in response to that letter: In response, The Minister of Justice and Public Safety hereby sends, as a joint document, the requested declaration. (DE:581:4). The government countered by making a beyond inappropriate response to the declaration that ultimately deprived Mr. Duperval of an essential defense 42
Case: 12-13009
Page: 58 of 88
witness and amounted to nothing less than an unbridled denial of his Fifth Amendment right to due process of law. explained: After receiving the letter from Mr. Calli [one of Mr. Josephs attorneys], the Government reached out to representatives of the Haitian Government, including Mr. Bellerive, to ascertain the origin and purpose of the July 26th declaration. The Government learned that the letter was actually an internal document created in connection with Telecos modernization and was not intended to convey a position that Teleco was not a government entity, as had been interpreted by Mr. Calli (and now Rodriguez and Esquenazi). The Haitian Government reiterated the position it has held throughout the course of this investigation and prosecutionthat Haiti Teleco was part of the public administration during the relevant time period. The Haitian Government, and Mr. Bellerive in particular, offered to clarify its position on this issue. As a result of those conversations, the Government assisted Mr. Bellerive in preparing the declaration attached to this response as Exhibit 1 (hereinafter, the second Bellerive declaration). In the second Bellerive declaration, Bellerive stated, in part, that he signed the first declaration (a) not know[ing] that it was going to be used in criminal legal proceedings in the United States; and (b) strictly for internal purposes and to be used in support of the on-going modernization process of Teleco[.] (DE:563:1-2). Both the governments explanation and Bellerives statements in his second declaration, however, are nothing short of disingenuous, border on the 43 In its own words the government
Case: 12-13009
Page: 59 of 88
nonsensical, and are expressly contradicted by the previous correspondence, which established that Bellerive signed the first declaration in response to an inquiry from an attorney representing Patrick Joseph, that it was sent to that attorney and not maintained within the Haitian government for internal purposes. The Supreme Court has recognized that a criminal defendant has a constitutional right to present his own witnesses to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). Although this right is specifically found in the Sixth Amendment right to compulsory process, the right is so fundamental to a fair trial that it is guaranteed by the Due Process Clause of the Fifth and Fourteenth Amendments. Id. Decisional authority from the Supreme Court and courts of appeal recognize that various forms of governmental interference or intrusion can deprive the accused of this right. See e.g. Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972). (defense witness intimidated by remarks of trial judge); United States v. Henricksen, 564 F.2d 197 (5th Cir. 1977) (defense witness intimidated by terms of plea bargain); United States v. Hammond, 598 F.2d 1008 (5th Cir. 1979) (defense witness intimidated by remarks of FBI agent); United States v. Morrison, 535 F.2d 223 (3d Cir.1976) (defense witness intimidated by remarks by assistant United States Attorney); United States v. Thomas, 488 F.2d 44
Case: 12-13009
Page: 60 of 88
334 (6th Cir. 1973) (defense witness intimidated by remarks of secret service agent involved in the case). Simply put, "substantial government interference with a defense witness' free and unhampered choice to testify violates due process" rights of the defendant. United States v. Henricksen, 564 F.2d at 199. The remedy to cure a due process violation of this nature which courts have recognized as harmful per se, see e.g. United States v. Morrison, 535 F.2d 223 (3d Cir.1976) and United States v. Thomas, 488 F.2d 334 (6th Cir. 1973) (both concluding that Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) does not require a finding of prejudice in order to reverse a conviction because of this type of due process violation) is reversal of the convictions without regard to prejudice to the defendant. See also United States v. Hammond, 598 F.2d 1008 (5th Cir. 1979), United States v. Goodwin, 625 F.2d 693, 703 (5th Cir. 1980), cert denied, 484 U.S. 873, 108 S.Ct. 209, L.Ed.2d 160 (1987). Demps v. Wainwright, 805 F.2d 1426 (11th Cir. 1986). The government's reaction to the first Bellerive declaration is precisely the type of governmental interference with a favorable defense witness that the courts have recognized as a substantial due process violation. As soon as the government learned of the declaration, they immediately contacted the government of Haiti to enlist it's assistance in convincing Prime Minister Bellerive to recede from his 45
Case: 12-13009
Page: 61 of 88
officially stated position that contradicted the government's theory of the legal status of Teleco. Beyond that, the government was kind enough to assist Prime Minister Bellerive in revising his declaration to reflect inter alia that Teleco was part of the "public administration" of Haiti. The choice of words was not coincidental. The "public administration" terminology was parroted at both the Esquenazi/Rodriguez trial and Mr. Duperval's trial by Mr. Lissade and became the linchpin of the governments argument that payments to Teleco officials were the subject of proscriptions contained in the FCPA. 10 But for the governments unjustified interference with Prime Minister Bellerive, Mr. Duperval could have availed himself of a favorable witness to demonstrate quite simply that Teleco was not a government instrumentality and he was not a foreign official. Establishing either at trial would have demonstrated that the monies he received were not proceeds of a specified unlawful activity, i.e., a violation of the FCPA or Haitian bribery laws and thus undermined the necessary predicate for his conviction. However, because of the government's
The governments response to the declaration, its disingenuous explanation as to why it was prepared, its enlistment of the Haitian government to remedy the situation, the use of the governments own words/terminology in the second declaration, and the governments assistance to Mr. Bellerive support the compelling inference he was pressured to change the substance of the first declaration to assimilate the governments theory of the case. It is difficult to imagine a clearer example of governmental interference with a defense witness. 46
10
Case: 12-13009
Page: 62 of 88
interference the favorable testimony of this witness was lost. Mr. Duperval's convictions must now be reversed. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967); Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); United States v. Henricksen, 564 F.2d 197 (5th Cir. 1977); United States v. Hammond, 598 F.2d 1008 (5th Cir. 1979). ISSUE IV The evidence was insufficient to prove beyond a reasonable doubt that Haiti Teleco was a government instrumentality and that Jean Rene Duperval was a foreign official as required to prove a charge of money laundering related to the proceeds of a violation of the Foreign Corrupt Practices Act (FCPA). The FCPA was primarily designed to protect the integrity of American foreign policy and domestic markets. Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1029 (6th Cir. 1990). The FCPA thus prohibits making corrupt payments to a foreign official or a foreign political party or official thereof or any candidate for political office for the purpose of influencing the acts or decisions of the foreign official in his official capacity, or inducing the foreign official to influence an act or decision of the government or its instrumentality in order to obtain or retain business on behalf of a private concern. 15 U.S.C. 78dd-2(a)(1)-(2). Congress, in turn, defined the term foreign official as any officer or employee 47
Case: 12-13009
Page: 63 of 88
of a foreign government or any department, agency, or instrumentality thereof or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality[.] 15 U.S.C. 78-dd-2(h)(2)(A). Teleco is not a department or agency of the Haitian government and the government concedes as much. The second superseding indictment instead labeled Teleco as a stateowned national telecommunications company, qualifying it as an instrumentality of the Haitian government. (DE:685). The jury instructions were based on the same instrumentality theory. The FCPA, however, does not define instrumentality of a foreign government. The only court that has attempted to construe the term in the context of the FCPA applied the term instrumentality to entities that perform governmental functions. See United States v. Carson, No. SACR 0900077JVS, 2011 WL 5101701, *5 (C.D. Cal. May 18, 2011). No evidence was presented at trial that Haiti Teleco performed a governmental function. To the contrary, phone service, specifically cellular service is provided by purely private carriers as well as Teleco. A. The FCPA Must Be Construed to Exclude Payments Made to State-Owned Business Enterprises that Do Not Perform Governmental Functions.
48
Case: 12-13009
Page: 64 of 88
As noted above, the FCPA does not define instrumentality of a foreign government, and nowhere in the statute are state-owned companies or government ownership of the stock of a privately-formed business discussed as possible instrumentalities. The Dictionary Act, 1 U.S.C. 1-6, likewise offers no definition of instrumentality, and instrumentality certainly does not have an established meaning at common law. The standard dictionary definition of instrumentality offers little help. Blacks Law Dictionary, for example, defines instrumentality as [s]omething by which an end is achieved; a means, medium, agency. 11 But no ends or means are specified in the FCPA. The term thus could potentially encompass: 1) programs or businesses that a government has invested in, provided funding for, or licensed, like AIG or GM; 2) businesses that have received government tax breaks or other incentives, like nearly every company in the United States; 3) an entire regulated industry, like agriculture, airlines, banking, or telecommunications; 4) government contractors; or 5) completely private businesses that step in to take the place of former government-run programs. In short, based on dictionary definitions alone, an instrumentality could include almost anything that directly or indirectly furthers some unspecified purpose (governmental or not) that benefits from government
11
Blacks Law Dictionary at 801 (6th ed. 1990). 49
Case: 12-13009
Page: 65 of 88
action or inaction. However, it is the statutory context in which a term appears that controls. See Small v. UnitedStates, 544 U.S. 385, 396-98 (2005). 1. The Statutory Context of the FCPA Indicates that Instrumentality Must Be Construed to Exclude Both State-Owned Business Enterprises that Do Not Perform Governmental Functions and Employees of the Same. The statutory context of the FCPA indicates that instrumentality must be read to exclude both state-owned business enterprises that do not perform governmental functions, as well as their employees, because: 1) the FCPA is aimed at foreign governments; and 2) the term instrumentality is to be read in line with government departments and agencies. The context of the FCPA reveals that Congress was particularly focused on the evils of bribing foreign public officials. In addition to the prohibition covering foreign officials, the statute also prohibits corrupt payments to any foreign political party or official thereof or any candidate for foreign political office. 15 U.S.C. 78dd-2(a)(2). And within the definition of foreign official, Congress in 1998 added officers and employees of public international organizations. Congress also created an exception to the FCPA for facilitating or expediting payment[s] made to secure routine governmental action, 15 U.S.C. 78dd-2(b) (emphasis added). In short, every time Congress specified the evils that the FCPA
50
Case: 12-13009
Page: 66 of 88
is meant to address, it identified political, public, or governmental actors, not state-owned enterprises that do not perform a political, public, or governmental function. The word instrumentality, moreover, should be read narrowly not only in light of the word it seeks to define (foreign official), but also in light of the words it follows: a governmental department or agency. Norfolk & Western R. Co. v. Train Dispatchers, 499 U.S. 117, 129, 111 S.Ct. 1156, 1163-64 (1991) (Under the principle of ejusdem generis, when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration.). All three neighboring words, official, government department, and government agency suggest a specific governmental position, subdivision, or function. 12 As such, the phrase governmental instrumentality should be read to either: 1) be a governmental subdivision; or 2) require the performance of some governmental function. There is nothing in the language of the FCPA to suggest that state-ownership or control of an entity is enough. For the same reason, employees of a state-owned enterprise should not be deemed part of the relatively small class of foreign officials unless the enterprise is performing a governmental
12
Cf. 18 U.S.C. 112 & 1116. 51
Case: 12-13009
Page: 67 of 88
function similar to a political subdivision. 13 Cf. Hall v. American National Red Cross, 86 F.3d 919, 921 (9th Cir. 1996) ({t}he use of the word instrumentality in a general, inclusionary definition does not indicate an intention to encompass entities which are not part of the government, even though they may be governmental instrumentalities in some sense.). a. Legislative History Supports Construing the FCPA to Exclude State-Owned Business Enterprises that Do Not Perform Governmental Functions.
When a statute is as vague or ambiguous as the FCPA, other interpretative tools may be used, including an examination of the acts purpose and its legislative history. See Garcia v. United States, 469 U.S. 70, 75-76 n.3, 105 S.Ct. 479, 482-83 (1984). As detailed in Professor Michael J. Koehlers declaration filed in United States v. Carson, the legislative history of the FCPA is both extensive and
See, e.g., In re Grand Jury Subpoena Dated August 9, 2000, 218 F. Supp. 2d 544, 557 (S.D.N.Y. 2002) (holding that FCPA involves foreign public officials and by definition, violations of the FCPA touch upon official acts of sovereign nations, and every investigation of a suspected violation of the FCPA has the potential to impugn the integrity of the officials of foreign sovereigns); United States v. Blondek, 741 F. Supp. 116, 120 (N.D. Tex. 1990) (concluding that foreign officials are a small class of persons and a well-defined group). 52
13
Case: 12-13009
Page: 68 of 88
complex. 14 Although the legislative history itself also does not offer a clear definition of the term instrumentality, several salient points stand out: 1. The events discussed by Congress that eventually gave rise to the FCPA concerned allegations that domestic companies had made payments to traditional foreign government officials or foreign political parties. 15 2. Congress used the terms foreign government official, foreign public official, and foreign official interchangeably during discussions on the bills that eventually became the FCPA. 16 3. At the time it was considering the bills that eventually became the FCPA, Congress was aware of questionable payments to state-owned entities. Several draft competing bills specifically included state-owned entities, but the bills that eventually became the FCPA did not. 17 4. In 1998, in accordance with the adoption of the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD
United States v. Carson, No. SA CR 09-00077-JVS (C.D. Cal.), DE 305 (Koehler Dec.); see also Ex. I to Defendant Rodriguezs Motion for Release Pending Appeal. See Territory of Alaska v. American Can Company, 358 U.S. 224, 226-27 (1959) (a court can take judicial notice of legislative history). 15 Koehler Dec. at 16(a), 29, 33, 39, 42-43, 49, 58-59, 75-77, 91, 159, 16566, 197, 222, 236, 243, 252, 269, 301, 327, and 336. 16 Koehler Dec. at 16(b), 76, 108, 183, 238, 253, 266, 273, 275, and 336. 53
14
Case: 12-13009
Page: 69 of 88
Convention), Congress amended the definition of foreign official to include public international organizations. Congress did not amend the definition to include officials of public enterprises, despite the fact that that term was included and defined in the OECD convention. 18 The legislative history thus supports construing the term instrumentality to include only those entities similar to departments and agencies that perform a governmental function, rather than businesses such as Teleco that are merely majority owned or controlled by a foreign government. b. The Use of the Term Instrumentality in Other Statutes Supports Construing the FCPA to Exclude State-Owned Business Enterprises that Do Not Perform Governmental Functions.
When a term is ambiguous, courts may look to the use of a similar term in other statutes to help determine the meaning of the ambiguous term. See Robinson v. Shell Oil Co., 519 U.S. 337, 341-42, 117 S.Ct. 843, 846-47 (1997). Several statutes that use but do not define the word instrumentality have construed the term narrowly to require more than just governmental ownership, regulation, or funding. In the Employee Retirement Income Security Act (ERISA), for example, certain governmental plan[s] are exempt from its provisions. The
17
18
Koehler Dec. at 16(c),(d),(f), 41, 79, 95, 148-51, 162, 230-31, and 279-80. Koehler Dec. at 17, 385-89, 407, 428, and 435-37. See also DE 283 at 54
Case: 12-13009
Page: 70 of 88
statute defines such plans as those established by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing. 28 U.S.C. 1002(32). The term instrumentality in ERISA has been construed by courts to be limited to those entities that perform a governmental function. See Koval v. Washington County Redevelopment Authority, 574 F.3d 238, 240-41 (3d Cir. 2009); Rose v. Long Island R.R. Pension Plan, 828 F.2d 910, 917-18 (2d Cir. 1987). Similarly, the Supreme Court has construed the word instrumentalities or agencies under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671, to require a showing of the day-to-day power to direct the detailed physical performance of a contractor. In United States v. Orleans, 425 U.S. 807, 814-16, 96 S.Ct. 1971, 1976-1978 (1976), the Court rejected an argument the mere provision of funds and regulation by the government were sufficient, standing alone, to turn a contractor into an instrumentality. 19 Id. at 815-16. In contrast, when Congress intended to include state-owned entities in the
12-13. 19 Similar examples abound. See, e.g., Americans with Disabilities Act (ADA), 42 U.S.C. 12131(1) & (B) (defining public entity as any department, agency, special purpose district, or other instrumentality of a State or States or local government[.]); Edison v. Douberly, 604 F.3d 1307, 1309-10 & n.4 (11th Cir. 2010) (holding that the term instrumentality of a State refers to governmental units or units created by them). 55
Case: 12-13009
Page: 71 of 88
definition of instrumentality, it knew how to do so. Indeed, in enacting the Foreign Sovereign Immunities Act (FSIA), Congress specifically included entities a majority of whose shares or other ownership interest is owned by a foreign statute or political subdivisions within the definition of agency or instrumentality of a foreign state. 28 U.S.C. 1603(b). Likewise, in the Dodd Frank Wall Street Reform and Consumer Protection Act, Pub.L. No. 111203, 124 Stat. 1376, 1054 (2010), codified at 15 U.S.C. 78m(q)(1)(B), Congress specifically defined foreign government to include a department, agency, or instrumentality of aforeign government, or a company owned by a foreign government, as determined by the Commission. Id. (emphasis added). The presence of such explicit definitions in FSIA and Dodd-Frank regarding foreignowned entities indicates that Congress knew how to include such language in the FCPA, but chose not to do so. See Central Bank of Denver v. First Interstate Bank, 511 U.S. 164, 176-77, 114 S.Ct. 1439, 1448-49 (1994) (Congress knew how to impose aiding and abetting liability when it chose to do so, but it did not use the words aid and abet in the statute, and, hence, did not impose aiding and abetting liability).
56
Case: 12-13009
Page: 72 of 88
That absence in the FCPAs definition of instrumentality is significant and warrants construing instrumentality narrowly. Thus, state-owned or statecontrolled entities that are not political subdivisions that perform governmental functions should not be grafted into the definition instrumentality. See Dole Food Co. v. Patrickson, 538 U.S. 468, 475-76, 123 S.Ct. 1655, 1660-61 (2003) (contrasting the absence of language in FSIA with that used in other statutes and concluding that the absence of language was instructive). c. The Rule of Lenity Requires the Court to Construe the FCPA to Exclude State-Owned Business Enterprises that Do Not Perform Governmental Functions.
The rule of lenity requires that a criminal statute be strictly construed in favor of the accused so as to apply only to conduct clearly covered. United States v. Santos, 553 U.S. 507, 514, 128 S.Ct. 2020, 2025 (2008); United States v. Lanier, 520 U.S. 259, 266; 117 S.Ct. 1219, 1225 (1997). Where, as here, a court is left to guess as to what Congress intended, the rule of lenity should be applied. See Reno v. Koray, 515 U.S. 50, 65, 115 S.Ct. 2012, 2029 (1995). Ties go to the defendant. Santos, 553 U.S. at 514. Put another way, unless the Governments position is unambiguously correct, the Court must resolve the ambiguity in Mr. Dupervals favor. See United States v. Granderson, 511 U.S. 39, 54, 114 S.Ct. 1259, 1267-68 (1994). 57
Case: 12-13009
Page: 73 of 88
The Government certainly has not demonstrated that its position on the meaning of instrumentality is unambiguously correct. To the contrary, based on the statutory context, legislative history, and similar uses of the term in other statutes, the Government cannot do so. As such, the rule of lenity requires a narrow construction of the FCPA that excludes transactions that the government relies on to demonstrate the funds purportedly laundered were proceeds of a specified unlawful activity. 2. In the Alternative, the FCPA Is Unconstitutionally Vague as Applied to Mr. Duperval.
The Due Process Clause of the Fifth Amendment requires that a penal statute define [a] criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357 (1983). A statute is unconstitutionally vague if people of common intelligence must necessarily guess at its meaning and differ as to its application. Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926); see also United States v. Biro, 143 F.3d 1421 (11th Cir. 1998). The touchstone of fair warning is whether it was reasonably clear at the relevant time that a defendants conduct was criminal under the statute, either standing alone or as construed. United States v.
58
Case: 12-13009
Page: 74 of 88
Lanier, 520 U.S. 259, 267 (1997). As illustrated above, based on dictionary definitions alone, an instrumentality could include almost anything that accomplishes some unspecified purpose (governmental or not) that in some form benefits from government action or inaction. Thus, it certainly is not clear from the face of the FCPA that employees of business enterprises in which a government holds some sort of ownership interest qualify as foreign officials. If Teleco was a purely private enterprise, there would be no FCPA violation, no violation of Haitian bribery laws, the predicate acts for the money laundering would disappear. But the statutory definition provides no basis for Mr. Duperval to know whether Teleco or its employees were subject to the FCPA (potentially rendering payments may be criminal) or not (rendering the payments noncriminal). Consequently, instrumentality is a vague term that escapes
comprehension by people of common intelligence - a point echoed by many FCPA commentators. See, e.g., Koehler, The Faade of FCPA Enforcement, 41 Geo. J. Intl L. at 998 (criticizing foreign official definition as vague and ambiguous); B. The Government Failed to Present Any Evidence that Haiti Teleco Performed a Governmental Function Similar to that Performed by Political Subdivisions Like a Department or Agency.
59
Case: 12-13009
Page: 75 of 88
The Governments case regarding Haiti Telecos qualification as an instrumentality under the FCPA rested on four categories of evidence: 1) the testimony of Gary Lissade; 2) the testimony of various individuals that Haiti Teleco was state-owned or nationalized; 3) documents evidencing Haitian governmental appointments to Haiti Telecos Board of Directors and position of Director General; and 4) an alleged insurance application. None of these categories, however, whether viewed in isolation or combination, establish that Teleco was an instrumentality performing a governmental function akin to a department or agency under the FCPA. Mr. Lissades only opined that Haiti Teleco was part of the public administration of Haiti a term that is different from the FCPAs instrumentality. Otherwise, Mr. Lissades testimony was focused on the Haitian governments control over the appointment of officials to the Board of Directors and the Director General position (a right the government had with respect to the board of directors since the 1968 inception of the company as an admittedly private enterprise), benefits Haiti Teleco received (again dating back to the 1968 formation of the private company); Government ownership, via the National Bank, of 97% of the stock of Haiti Teleco; and occasional references to Haiti Teleco as a S.A.M. (even though no formal legal act was ever taken to transform Haiti Teleco 60
Case: 12-13009
Page: 76 of 88
into an S.A.M., as was required by Haitian law to qualify as a state-run entity). This evidence, however, does not establish that Haiti Teleco performed a governmental function akin to a department or agency under the FCPA. Moreover, this instrumentality theory ignores evidence that demonstrated Teleco did not provide a government function and operated as a private company. Cellular phone service was also provided by a number of nonstate owned companies. Teleco can be sued in its own name, can bring a lawsuit in its own name, pays for and is represented by the attorneys of its choosing, is not funded by the Haitian annual budget, opened a private pension fund account in the United States, its employees do not receive the same benefits as government employees, and to overcome cash flow issues it has borrowed money or been funded by private concerns including Terra and Cinergy. In addition, it contracts on its own behalf, the Haitian government is neither a party to Telecos contracts, or liable for a breach. (DE:771:113). C. The Government Failed to Negate the Applicable Statutory Exception/Affirmative Defense
Finally the government failed to prove the non-applicability of the statutory exception/affirmative defense raised by Mr. Duperval's trial testimony. As we have explained supra, Mr. Duperval testified that in
61
Case: 12-13009
Page: 77 of 88
exchange for the money he received, he did nothing more than perform a routine governmental action and thus the exception to an FCPA violation found in 15 U.S.C. 782-dd(b) applied. That showing then shifted the burden to the government to prove beyond a reasonable doubt the nonapplicability of the statutory exception/affirmative defense. See e.g. United States v. Kloess, 251 F.3d 941 (11th Cir. 2001). This it failed to do and Mr. Duperval's convictions must therefore be reversed. ISSUE V The 108 month sentence imposed by the district court was both procedurally and substantively unreasonable. Mr. Dupervals sentence was procedurally unreasonable because the district court erred in its determination that the following guideline sentencing enhancements should be applied. To begin with, an additional two levels were added pursuant to U.S.S.G. 2B1.1(b)(9)(B) because according to the government, a substantial part of the fraudulent scheme was committed outside the United States. The guideline does not define substantial, nor apparently has any court had occasion to consider the precise definition. However, language in the Sentencing Guidelines is to be given its plain and ordinary meaning. Further, where the guidelines provide no 62
Case: 12-13009
Page: 78 of 88
indication as to a particular application the Court looks to the language and purpose of the Sentencing Guidelines for instruction. United States v. Pompey, 17 F.3d 351, 354 (11th Cir.1994) (citations omitted). Mr. Duperval was charged with money laundering, not a violation of the FCPA. The government alleged that the specifics of his offense of conviction was the laundering of money through two companies, both of which were located in the United States, i.e., Crossover Records and Telecom Consulting. The source of the funds was purportedly disguised consulting agreements entered into in the United States. The funds originated with United States corporations, i.e., Cinergy and Terra, from their bank accounts in the United States and were deposited into other bank accounts in the United States in the name of Telecom Consulting or Crossover Records. The funds were then transferred to Mr. Dupervals account in the United States or to other entities in the United States for his benefit. Thus, all alleged laundering activity occurred only within the United States. application of this enhancement was therefore unwarranted and erroneous. A three level enhancement based upon role in the offense pursuant to U.S.S.G. 3B1.1(b) was included in the guideline calculation urged by the government and determined by the court. The application of a role enhancement was The
inappropriate. In the alternative, if a role enhancement was to be applied it should 63
Case: 12-13009
Page: 79 of 88
have been a two level enhancement as opposed to the three level enhancement imposed. Under 3B1.1(b) of the guidelines, the district court is authorized to apply a three-level enhancement to the base offense level if a defendant was a manager or supervisor ... and the criminal activity involved five or more participants or was otherwise extensive. U.S.S.G. Manual 3B1.1(b). In determining the nature of Mr. Dupervals role the district court could consider the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. U.S.S.G. 3B1.1 cmt. n.4. Under the guidelines a participant must be criminally responsible for the commission of the offense . U.S.S.G. 3B1.1, cmt. n. 1. The evidence did not establish that Lionel Duperval and Marguerite Grandison were willful criminal participants. There was nothing to suggest that Lionel Duperval had any knowledge, direct or indirect, of any underlying criminality of the funds. The money went into an account in the name of
64
Case: 12-13009
Page: 80 of 88
Crossover Records, after which it was transferred from Crossover to Mr. Duperval's personal account. Furthermore, although Marguerite Grandison was the nominee president or sole nominee officer of Telecom, there is precious little to suggest that she was a criminal participant in this venture. What the evidence did show was that Mr. Dickey at Terra had formed Telecom Consulting and then a representative of the bank went to Ms. Grandisons home and had her sign the appropriate account documents. Beyond that, there was nothing to suggest that she had actual knowledge of the fact that the money was coming from unlawful activity or that she should have reasonably suspected such. Here, neither Ms. Grandison nor Lionel Duperval assisted Mr. Duperval in the scheme of money laundering and there is no evidence that they had any knowledge. Their passive involvement in the offense is comparable to the
recipient of a Social Security card or the customers of drug dealers. See United States v. Barrie, 267 F.3d 220 (3d Cir. 2001); United States v. Egge, 223 F.3d 1128, 1133-34 (9th Cir. 2000). Accordingly, Ms. Grandison and Lionel Duperval cannot be said to have been criminally responsible. Given their noninvolvement,
65
Case: 12-13009
Page: 81 of 88
an enhancement for role in the offense pursuant to 3B1.1(b) is inappropriate. 20 In the alternative, if an enhancement based on role in the offense was appropriate, a two level as opposed to a three level enhancement should have been applied. A three level enhancement applies only where the criminal activity
involved five or more participants or is otherwise extensive. 21 The trial court also erroneously applied a two-level enhancement based on Mr. Dupervals purported obstruction of justice pursuant to U.S.S.G. 3C1.1. In order for an enhancement pursuant to 3C1.1 to apply, the defendant must consciously act with the purpose of obstructing justice. See United States v. Campa, 529 F.3d 980, 1016 (11th Cir. 2008). There is no evidence that Mr. Duperval consciously acted with the purpose of obstructing justice. The
arguments for enhancing Mr. Duperval involved his allegedly having testified falsely at trial and having made false pre-indictment statements to Special Agent Charles Hyacinthe.
Clearly, Mr. Duperval exercised no supervisory authority over Mr. Antoine or the executives at Terra or Cinergy. 21 Neither Robert Antoine, Mr. Dupervals predecessor at Haiti Teleco, nor Patrick Joseph, the former Director General of Teleco received an enhancement for role in the offense even though Mr. Antoine recruited and/or supervised other individuals who were clearly criminally involved with Antoine, i.e., Juan Diaz and Jean Fourcand. Patrick Joseph involved his father, Venel Joseph, who was the former chairman of the Central Bank, had Antoine picking up and delivering checks to him and utilized and directed Juan Diaz with respect to certain transactions. 66
20
Case: 12-13009
Page: 82 of 88
Perjury has been defined as false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory. United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 1116, 122 L.Ed.2d 445 (1993). The application of the
enhancement is not appropriate based on Mr. Dupervals trial testimony. Notably, Mr. Duperval never denied receiving money. Mr. Duperval never disputed the amounts of money he eventually recovered from Telecom Consulting or Crossover Records as a result of payments made by Terra and Cinergy. At trial he only offered an interpretive explanation as to why he received the money. He
explained that in his view he did nothing beyond ensuring that Terra and Cinergy got nothing more or nothing less than they were entitled to. He simply administered the contracts thereby performing only a routine function that neither resulted in the award of new business nor conferred a business advantage on Terra or Cinergy. There is no evidence to support a finding that Mr. Dupervals explanation was made with the willful intent to provide false testimony required to constitute perjury. Conduct covered by 3C1.1 also includes providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense. Id. 3C1.1, comment. 67
Case: 12-13009
Page: 83 of 88
(n.4(g)). An example of conduct not ordinarily covered by 3C1.1 includes making false statements, not under oath, to law enforcement officers, unless Application Note 4(g) ... applies. Id. 3C1.1, comment. (n.5(b)). Mr. Duperval provided an informal statement (he was not under oath) to Special Agent Charles Hyacinthe in Haiti in 2005 at which time he admitted to receiving $150,000 and the source of the money, Cinergy as well as $10,000 and a Rolex watch from Terra. (DE:772:26). Any inaccuracy in the amount received by no means
significantly obstructed or impeded the overall scope of the investigation. The government was never misled and always had access to the corporate documents which would establish the exact amount of money Mr. Duperval received. It did not cause further substantial investigative efforts. Compare U.S. v. Achille, 277 Fed.Appx. 875 (11th Cir. 2008). Any discrepancy in the amount received cannot be characterized as a significant obstruction or impediment in the investigation. In summary, Mr. Duperval offered an explanation as to why the payments were made. That explanation was substantively supported by rather than
contradicted by the documentary evidence introduced at trial including contracts, invoices, emails, other correspondence and the like. Furthermore, the court never
68
Case: 12-13009
Page: 84 of 88
made a specific finding that Mr. Duperval willfully perjured himself. 22 See United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 111718 (1993) (the district court must make an independent factual finding that the defendant willfully gave perjured testimony to support a finding of obstruction of justice under 3C1.1). Under these circumstances, the application of the enhancement provided for by 3C1.1 was unjustified. The district courts sentence was substantively unreasonable based on its failure to properly apply the factors mandated by 18 U.S.C. 3553(c). When reviewing a district courts application and consideration of the 3553(a) factors, the court must evaluate whether the district court considered the parties' arguments and had a reasoned basis for imposing the sentence. See Rita v. United States, 551 U.S. 338, 356 (2007). The review for substantive unreasonableness involves examining the totality of the circumstances, including an inquiry into whether the statutory factors in 3553(a) support the sentence in question. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). A district court abuses its discretion when it ... weighs those factors unreasonably, arriving at a sentence that does not achieve the purposes of sentencing as stated in 3553(a). United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc ).
22
The court merely states [i]t is perjurious, in my view, and I think it justifies the 69
Case: 12-13009
Page: 85 of 88
At sentencing, Mr. Duperval urged, inter alia, that a downward variance was appropriate to avoid unwarranted disparity between defendants sentenced in similar or related cases and given his own personal characteristics, history, etc. The imposition of a 10 month sentence resulted in an unwarranted sentencing disparity when compared to other individuals charged in FCPA based cases and as compared to his co-defendants with similar roles in this case. The money laundering scheme of which Mr. Duperval was convicted was predicated on a theory that the funds were generated by violations of the FCPA. The average sentence in FCPA cases nationwide has been two years. The highest sentence ever imposed was fifteen years on Mr. Esquenazi in this case. Mr. Dupervals culpability is less significant than Mr. Antoine who was his predecessor as Director of International Affairs at Haiti Teleco and who also accepted money from Cinergy and Terra for the performance of his duties. His culpability is also more comparable to that of Patrick Joseph, the Director General of Haity Teleco. Prior to his cooperation, Mr. Antoine was sentenced to 48 months. (DE:182). Mr. Joseph has since been sentenced to twelve months and one day in prison. (DE:845). The amount of money Mr. Duperval received is a fraction of that received
obstruction of justice. (DE:850:16). 70
Case: 12-13009
Page: 86 of 88
by Mr. Antoine and Mr. Joseph. Mr. Antoine was convicted of receiving $1.5 million, an amount three times greater than the $497,000 received by Mr. Duperval. Patrick Joseph was held responsible for $2.3 million, an amount almost five times greater than that received by Mr. Duperval. In addition, neither Robert Antoine nor Patrick Joseph received an enhancement for role in the offense, yet Mr. Duperval received a three level enhancement for being a leader or organizer in criminal activity involving five or more participants. As explained supra, both Antoine and Joseph were prime candidates for role enhancements. Mr. Duperval was not. In the last analysis, the 108 month sentence imposed on Mr. Duperval was contraindicated by any reasonable application of the 3553 factors and was far greater than necessary to achieve the statutory sentencing objectives. ISSUE VI Where, as here, the prejudice affects multiple aspects of the trial, the Court does not parse the improprieties, and review them individually - under varying standards - but rather for their effect on the defendant's substantial rights. The Court considers the prejudice cumulatively, to determine if the cumulative effect of the errors denied the defendants a fair trial. See United States v. Hands, 184 F.3d 1322, 1334 (11th Cir. 1999) (We assess not the prosecutorial misconduct alone, 71
Case: 12-13009
Page: 87 of 88
but the combined impact of [all] errors on the verdict); United States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987) (even if some errors would not in and of *53 themselves have warranted reversal, reversal is mandated where cumulative effect of errors denied the defendants a fair trial); United States v. Labarbera, 581 F.2d 107, 110 (5th Cir. 1978) (same). CONCLUSION Based upon the foregoing argument and citations of authority, the Court should vacate the defendants convictions and remand for the entry of a judgment of acquittal or, in the alternative, for a new trial or resentencing. Respectfully submitted, /s/ John E. Bergendahl John E. Bergendahl Florida Bar No. 327761 Counsel for Appellant Duperval 25 S.E. 2nd Avenue, Suite 1105 Miami, Florida 33131-1605 Tel. No. (305) 536-2168 Facsimile: (305) 536-2170 E-mail: vaneri17@bellsouth.net
72
Case: 12-13009
Page: 88 of 88
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a)(7)(B), and that according to the program (WORD) on which it is prepared it contains 13,999 words.
By:
/s/ John E. Bergendahl John E. Bergendahl
CERTIFICATE OF SERVICE
I CERTIFY that a copy of the foregoing was served by mail this 4th day of February, 2013 upon Kirby Heller, of the Appellate Section of the U.S. Department of Justice, 950 Pennsylvania Avenue, N.W., Room 1263, Washington DC 20530-0009.
By:
/s/ John E. Bergendahl John E. Bergendahl
73

U.S. v. Duperval (Duperval Appellate Brief)

Transféré par

Informations du document

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

U.S. v. Duperval (Duperval Appellate Brief)

Transféré par

Droits d'auteur :

Formats disponibles

Case: 12-13009

Date Filed: 02/04/2013

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff/appellee, v. JEAN RENE DUPERVAL, Defendant/appellant.

INITIAL BRIEF OF THE APPELLANT JEAN RENE DUPERVAL

THIS CASE IS ENTITLED TO PREFERENCE (CRIMINAL APPEAL)

Date Filed: 02/04/2013

Date Filed: 02/04/2013

United States v. Jean Rene Duperval Case No. 12-13009-CC C2 of 2

Date Filed: 02/04/2013

STATEMENT REGARDING ORAL ARGUMENT

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Ms. Grandisons prior employment history reflected no involvement or 15

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

2004 was a creditor of Teleco. 21

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013

Date Filed: 02/04/2013