DOJ Brief in Duperval Appeal

Case: 12-13009
Date Filed: 05/20/2013
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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 Criminal No. 09-CR-21010-JEM BRIEF FOR THE UNITED STATES
WIFREDO A. FERRER
United States Attorney Southern District of Florida
MYTHILI RAMAN
Acting Assistant Attorney General Criminal Division
JAMES M. KOUKIOS
Assistant Chief
DENIS J. MCINERNEY
Acting Deputy Assistant Attorney General, Criminal Division
DANIEL S. KAHN
Trial Attorney Fraud Section, Criminal Division
KIRBY A. HELLER
Attorney Appellate Section Criminal Division U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530 202-307-0085
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No. 12-13009-CC United States v. Jean Rene Duperval CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26.1-1, undersigned counsel for the United States certifies that, in addition to the persons and entities identified in appellants initial brief, the following persons have an interest in the outcome of this case: Daniel S. Kahn, counsel for Appellee Mythili Raman, counsel for Appellee Denis J. McInerney, counsel for Appellee Joseph Wyderko, counsel for Appellee
/s/ Kirby A. Heller KIRBY A. HELLER Attorney, U.S. Department of Justice
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STATEMENT REGARDING ORAL ARGUMENT The United States concurs in appellants request for oral argument.
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TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 of 1 STATEMENT REGARDING ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . i JURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. 2. Course Of Proceedings And Disposition In The Court Below.. . 2 Statement Of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Terras Principals Bribe Robert Antoine, Dupervals Predecessor, And Then Bribe Duperval After Antoine Is Fired.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Cinergys Principals Also Bribe Duperval . . . . . . . . . . . . . 6 The Bribe Payments Are Transferred to Duperval And Others On His Behalf.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. C.
3.
Standards Of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 I. The District Court Did Not Abuse Its Discretion By Failing To Question Jurors Individually About Whether They Had Read Articles Pertaining To The Case. . . . . . . . . . . . . . . . . . . . . . . . . 15 A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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B.
The Courts Handling Of The Mid-Trial Publicity Was Appropriate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
II.
The Evidence Established That Teleco Was An Instrumentality Of Haiti. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 A. B. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 State-Owned Enterprises (SOEs) That Provide Telephone Service To The States Citizens May Qualify As Instrumentalities Under The FCPA. . . . . . . . . . . . . . . . . . 25 1. Dupervals Restrictive View Of The Term Instrumentality Is Incorrect.. . . . . . . . . . . . . . . . . 27 Dupervals Interpretation Of The Statute Does Not Comport With U.S. Treaty Obligations. . . . . . . . . . 35 The Legislative History Should Not Be Considered, Nor Does It Support Dupervals Position. . . . . . . . . 37 Dupervals Vagueness Challenge Is Misplaced And The Rule Of Lenity Does Not Apply. . . . . . . . . . . . 39
2.
3.
4.
C.
A Reasonable Juror Could Find That Teleco Was An Instrumentality Of Haiti.. . . . . . . . . . . . . . . . . . . . . . . . . . 41
III.
The District Court Did Not Abuse Its Discretion By Denying Dupervals Requested Instruction On The Routine Governmental Action Exception To The FCPA. . . . . . . . . . . . 44 A. B. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Dupervals Job Functions Were Not Routine Governmental Actions And The District Court Did Not Abuse Its Discretion By Rejecting His Proposed Instruction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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C.
The Government Was Not Required To Disprove Dupervals Claim That Terra and Cinergy Paid Him For Performing Routine Governmental Actions.. . . . . . . . . . . 50 Any Error Was Harmless. . . . . . . . . . . . . . . . . . . . . . . . . . 51
D. IV.
Duperval Has Not Demonstrated That The Government Improperly Obtained An Affidavit From A Haitian Official.. . . 53 A. B. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Duperval Has Not Demonstrated That The Government Interfered With His Right To Call Bellerive As A Witness, Let Alone That The Governments Conduct Amounted To Plain Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
V.
Dupervals Sentence Should Be Affirmed... . . . . . . . . . . . . . . . . 57 A. B. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 The District Court Did Not Err In Calculating The Guidelines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 1. 2. 3. 4. The Foreign Location Of The Fraudulent Scheme. . 60 Role In The Offense. . . . . . . . . . . . . . . . . . . . . . . . . 62 Obstruction Of Justice. . . . . . . . . . . . . . . . . . . . . . . 65 Substantive Unreasonableness. . . . . . . . . . . . . . . . . 66
VI.
There Were No Cumulative Errors That Require Reversal Of Dupervals Convictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

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TABLE OF AUTHORITIES FEDERAL CASES Aluminum Bahrain B.S.C. v. Alcoa Inc., 2012 WL 2094029 (W.D. Pa. June 11, 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 CSX Transportation, Incorporated v. Alabama Dept. of Revenue, 131 S. Ct. 1101 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Cherry Cotton Mills v. United States, 327 U.S. 536, 66 S. Ct. 729 (1946). . . . . . 28 Edison v. Douberly, 604 F.3d 1307 (11th Cir. 2010). . . . . . . . . . . . . . . . . . . . . 34 First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 103 S. Ct. 2591 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30 Fordham v. United States, 706 F.3d 1345 (11th Cir. 2013).. . . . . . . . . . . . . . . . 51 Gall v. United States, 552 U.S. 38, 128 S. Ct. 586 (2007). . . . . . . . . . . . . . . . . 12 Garcia v. United States, 469 U.S. 70, 105 S. Ct. 479 (1984).. . . . . . . . . . . . . . . 31 Gordon v. United States, 438 F.2d 858 (11th Cir. 1971).. . . . . . . . . . . . . . . . . . 18 Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466 (1991).. . . . . . . . . . . . . . . 43 Hall v. American National Red Cross, 86 F.3d 919 (9th Cir. 1996). . . . . . . . . . . 34 Keifer and Keifer v. Reconstruction Finance Corporation, 306 U.S. 381, 59 S. Ct. 516 (1939).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Lamie v. United States Trustee, 540 U.S. 526, 124 S. Ct. 1023 (2004). . . . . . . . 38 Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 115 S. Ct. 961 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28 In re Maxwell Communication Corporation, 93 F.3d 1036 (2d Cir. 1996). . . . . . 35
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Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804). . . . . . . . . . . 35 Muscarello v. United States, 524 U.S. 125, 118 S. Ct. 1911 (1998). . . . . . . . . . . 41 Securities Industry Association v. Board of Governors, 468 U.S. 137, 104 S. Ct. 2979 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Skilling v. United States, 130 S. Ct. 2896 (2010). . . . . . . . . . . . . . . . . . . . . . . . 51 Smith v. United States, 133 S. Ct. 714 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . 50 Transaero, Incorporated v. La Fuerza Aerea Boliviana, 30 F.3d 148 (D.C. Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 United States v. Aguilar, 783 F. Supp. 2d 1108 (C.D. Cal. 2011).. . . . . . . . 27, 38 United States v. Alpert, 28 F.3d 1104 (11th Cir. 1994).. . . . . . . . . . . . . . . . . . . 65 United States v. Aragon, 962 F.2d 439 (5th Cir. 1992). . . . . . . . . . . . . . 19, 22, 23 United States v. Arzola-Amaya, 867 F.2d 1504 (5th Cir. 1989).. . . . . . . . . . . . . 22 United States v. Augustin, 661 F.3d 1105 (11th Cir. 2011), cert. denied, 132 S. Ct. 2444 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States v. Awan, 966 F.2d 1415 (11th Cir. 1992). . . . . . . . . . . . . . . . . . . 40 United States v. Ballinger, 395 F.3d 1218 (11th Cir. 2005).. . . . . . . . . . 26, 29, 37 United States v. Bates, 600 F.2d 505 (5th Cir. 1979). . . . . . . . . . . . . . . . . . . . . 55 United States v. Bradberry, 466 F.3d 1249 (11th Cir. 2006). . . . . . . . . . . . . . . . 12 United States v. Brodie, 403 F.3d 123 (3d Cir. 2005). . . . . . . . . . . . . . . . . . . . . 64 United States v. Browne, 505 F.3d 1229 (11th Cir. 2007).. . . . . . . . . . . . . . . . . 43 United States v. Capers, 708 F.3d 1286 (11th Cir. 2013). . . . . . . . . . . . . . . . . . 69
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United States v. Carrodeguas, 747 F.2d 1390 (11th Cir. 1984). . . . . . . . . . . 11, 20 United States v. Carson, 2011 WL 5101701 (C.D. Cal. May 18, 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 38 United States ex rel. Chicago, New York & Boston Refrigerator Co. v. Interstate Commerce Commission, 265 U.S. 292, 44 S. Ct. 558 (1924).. . . . . . . . . . . . . 33 United States v. Chitwood, 676 F.3d 971 (11th Cir.), cert. denied, 133 S. Ct. 288 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 United States v. Cousins, 842 F.2d 1245 (11th Cir. 1988).. . . . . . . . . . . . . . . . . 20 United States v. Dean, 487 F.3d 840 (11th Cir. 2007). . . . . . . . . . . . . . . . . . . . 45 United States v. Demarest, 570 F.3d 1232 (11th Cir. 2009). . . . . . . . . . . . . . . . 11 United States v. Diallo, 575 F.3d 252 (3d Cir. 2009). . . . . . . . . . . . . . . . . . . . . 33 United States v. Dunnigan, 507 U.S. 87, 113 S. Ct. 1111 (1993). . . . . . . . . . . . 66 United States v. Frank, 599 F.3d 1221 (11th Cir. 2010). . . . . . . . . . . . . . . . . . . 26 United States v. Garmany, 762 F.2d 929 (11th Cir. 1985). . . . . . . . . . . . . . . . . 57 United States v. Girod, 646 F.3d 304 (5th Cir. 2011). . . . . . . . . . . . . . . . . . 55, 56 United States v. Hammond, 598 F.2d 1008 (5th Cir. 1979). . . . . . . . . . . . . . . . 56 United States v. Harrelson, 754 F.2d 1153 (5th Cir. 1985). . . . . . . . . . . . . . 20, 21 United States v. Hendricksen, 564 F.2d 197 (5th Cir. 1977). . . . . . . . . . . . . . . . 56 United States v. Herring, 568 F.2d 1099 (5th Cir. 1978).. . . . . . . . . . . . 19, 21, 22 United States v. Hunt, 526 F.3d 739 (11th Cir. 2008). . . . . . . . . . . . . . . . . . . . 67 United States v. Irey, 612 F.3d 1160 (11th Cir. 2010). . . . . . . . . . . . . . . . . . . . 67
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United States v. Jackson, 935 F.2d 832 (7th Cir. 1991).. . . . . . . . . . . . . . . . . . . 40 United States v. Kay, 359 F.3d 738 (5th Cir. 2004). . . . . . . . . . . . . 30, 37, 45, 46 United States v. Kloess, 251 F.3d 941 (11th Cir. 2001).. . . . . . . . . . . . . . . . . . . 50 United States v. Lanier, 520 U.S. 259, 117 S. Ct. 1219 (1997). . . . . . . . . . . . . . 39 United States v. Levy, 416 F.3d 1273 (11th Cir. 2005).. . . . . . . . . . . . . . . . . . . 55 United States v. Menendez, 600 F.3d 263 (2d Cir. 2010). . . . . . . . . . . . . . . . . . 60 United States v. Miller, 607 F.3d 144 (5th Cir. 2010).. . . . . . . . . . . . . . . . . . . . 66 United States v. Morrison, 535 F.2d 223 (3d Cir. 1976). . . . . . . . . . . . . . . . . . . 56 United States v. Njau, 386 F.3d 1039 (11th Cir. 2004).. . . . . . . . . . . . . . . . . . . 64 United States v. Orleans, 425 U.S. 807, 96 S. Ct. 1971 (1976). . . . . . . . . . . . . . 34 United States v. Palma, 511 F.3d 1311 (11th Cir. 2008). . . . . . . . . . . . . . . . . . 49 United States v. Regueiro, 240 F.3d 1321 (11th Cir. 2001). . . . . . . . . . . . . . . . . 68 United States v. Sanchez, 586 F.3d 918 (11th Cir. 2009). . . . . . . . . . . . . . . . . . 68 United States v. Svete, 556 F.3d 1157 (11th Cir. 2009). . . . . . . . . . . . . . . . . . . 11 United States v. Thomas, 488 F.2d 334 (6th Cir. 1973). . . . . . . . . . . . . . . . . . . 56 United States v. Townsend, 630 F.3d 1003 (11th Cir. 2011). . . . . . . . . . . . . . . . 33 United States v. Vallejo, 297 F.3d 1154 (11th Cir. 2002). . . . . . . . . . . . . . . . . . 66 United States v. Velazquez-Armas, 335 Fed. Appx. 912 (11th Cir. 2009 ). . . . . . 64 United States v. Williams, 340 F.3d 1231 (11th Cir. 2003).. . . . . . . . . . . . . . . . 11 United States v. Williams, 527 F.3d 1235 (11th Cir. 2008).. . . . . . . . . . . . . . . . 12
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United States v. Williams, 627 F.3d 839 (11th Cir. 2010). . . . . . . . . . . . . . . . . 65 United States v. Williams, 809 F.2d 1072 (5th Cir. 1987). . . . . . . . . . . . . . . . . 22 United States v. Zuniga-Arteaga, 681 F.3d 1220 (11th Cir. 2012). . . . . . . . . . . . 26 Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 115 S. Ct. 2322 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351 (1972).. . . . . . . . . . . . . . . . . . . . . . 56 FEDERAL STATUTES 15 U.S.C. 78dd-2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 15 U.S.C. 78dd-2(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 15 U.S.C. 78dd-2(a)(1)(A)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 15 U.S.C. 78dd-2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 31, 44 15 U.S.C. 78dd-2(d)(2) (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 15 U.S.C. 78dd-2(h)(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 29 15 U.S.C. 78dd-2(h)(4)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 15 U.S.C. 78dd-2(h)(4)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 15 U.S.C. 78m(q)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33 18 U.S.C. 1512(b)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 18 U.S.C. 1956.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 18 U.S.C. 1956(a)(1)(B)(i) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 18 U.S.C. 1956(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
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18 U.S.C. 1956(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 18 U.S.C. 1957(f)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 18 U.S.C. 3231.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 18 U.S.C. 3553(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 66 18 U.S.C. 3742(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1603(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 28 U.S.C. 1608.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 28 U.S.C. 1610.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 28 U.S.C. 1291.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 UNITED STATES SENTENCING GUIDELINES U.S.S.G. 2B1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 U.S.S.G. 2B1.1(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 U.S.S.G. 2B1.1(b)(1)(H). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 U.S.S.G. 2B1.1(b)(9)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim U.S.S.G. 2S1.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 U.S.S.G. 2S1.1(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 U.S.S.G. 2S1.1(b)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 U.S.S.G. 2S1.1(b)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 U.S.S.G. 3B1.1(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 62 U.S.S.G. 3B1.1 comment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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U.S.S.G. 3C1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Sentencing Guidelines Manual App. C (Vol. III) 736.. . . . . . . . . . . . . . . . . . 61 MISCELLANEOUS Blacks Law Dictionary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Bureaucrats in Business: The Economics and Politics of Government Ownership, World Bank Policy Research Report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Convention On Combating Bribery Of Foreign Public Officials In International Business Transactions. . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36 The International Anti-Bribery and Fair Competition Act of 1998, Pub. L. 105-366 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Presidential Statement on Signing the International Anti-Bribery and Fair Competition Act of 1998. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 H.R. Conf. Rep. No. 100-576 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 S. Rep. 100-85 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 H.R. Rep. 100-40 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 H.R. Rep. 95-640 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 46 S. Rep. 95-114 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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JURISDICTIONAL STATEMENT This is an appeal from a judgment of conviction in a criminal case. The district court, which had jurisdiction under 18 U.S.C. 3231, entered the judgment on May 22, 2012. Doc. 816. Duperval filed a timely notice of appeal on June 1, 2012. Doc. 826. The jurisdiction of this Court rests on 28 U.S.C. 1291 and 18 U.S.C. 3742(a). QUESTIONS PRESENTED 1. Whether the district court abused its discretion by declining to interview jurors individually about whether they had been exposed to mid-trial publicity related to the case. 2. Whether the evidence sufficiently established that Teleco was an instrumentality of the government of Haiti as required under the Foreign Corrupt Practices Act (FCPA), 15 U.S.C. 78dd-2. 3. Whether the district court abused its discretion in refusing to give Dupervals proposed jury instruction on his theory of the defense when the evidence did not support it, and whether the government was required to disprove the non-applicability of the exception in the FCPA for routine governmental action. 4. Whether the government interfered with an essential defense witness.
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5. Whether the district court correctly calculated the Guidelines and whether Dupervals within-Guidelines sentence was substantively unreasonable. 6. Whether cumulative errors require reversal of Dupervals convictions. STATEMENT OF THE CASE 1. Course Of Proceedings And Disposition In The Court Below. A federal grand jury in the Southern District of Florida returned a second superseding indictment charging Duperval and others with money laundering conspiracy, in violation of 18 U.S.C. 1956(h) (Counts 8 and 9), and 19 counts of concealment money laundering, in violation of 18 U.S.C. 1956(a)(1)(B)(i) (Counts 10-28). Doc. 685. The indictment alleged that the financial transactions involved the proceeds of wire fraud and violations of the FCPA and Haitian bribery laws. Doc. 685-Pg. 29, 32, 35. A jury convicted Duperval on all counts. Doc. 816. The district court sentenced Duperval to concurrent terms of 108 months of imprisonment, to be followed by three years of supervised release.1/ Doc. 816.
Co-conspirators Joel Esquenazi and Carlos Rodriguez were charged in the first indictment and were convicted in a separate trial of conspiring to violate the FCPA and to commit wire fraud, seven counts of violating the FCPA, money laundering conspiracy, and 12 counts of concealment money laundering. Esquenazi was sentenced to 15 years of imprisonment, and Rodriguez was sentenced to seven years of imprisonment. Doc. 637, 638. Their appeals are pending before this Court (No. 11-15331-C), and oral argument is scheduled for the week of October 7, 2013.
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2. Statement Of Facts. Viewing the evidence in the light most favorable to the verdict, the jury could have found the following facts. From June 2003 through April 2004, Duperval was the Assistant Director General and Director of International Affairs of the state-owned
telecommunications company of Haiti (Teleco). Doc. 772-Pg. 683, 686; Doc. 773-Pg. 800. His responsibilities included administering Telecos contracts with foreign telecommunications companies that provided phone service to Haiti. Doc. 772-Pg. 687. As a result, he was in a position to grant favors to the foreign companies, and the owners of two Miami companies, Cinergy
Telecommunications, Inc. (Cinergy)2/ and Terra Telecommunications Corporation (Terra), were ready to buy them. Joel Esquenazi and Carlos Rodriguez, on behalf of Terra, and Washington Vasconez, Cecilia Zurita, and Amadeus Richers, on behalf of Cinergy, paid Duperval close to $500,000 in bribes and funneled the payments through conduit companies that were owned by Dupervals siblings. The intermediaries then transferred the money to Duperval and others on his behalf. See pages 9-10 infra.
The principals of Cinergy also did business under the name UniPlex. The companies were interchangeable, Doc. 769-Pg. 153; Doc. 770-Pg. 336, and we refer to the company as Cinergy throughout the brief.
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A.
Terras Principals Bribe Robert Antoine, Dupervals Predecessor, And Then Bribe Duperval After Antoine Is Fired.
Robert Antoine was the Director of International Affairs at Teleco from about June 2001 through March or April 2003. Doc. 770-Pg. 248, 292. He administered the contract between Teleco and Terra that governed Terras purchase of minutes from the Haitian phone company. Doc. 770-Pg. 259. Terra was continually behind in its payments to Teleco, and Antoine repeatedly threatened to disconnect Terras service. Doc. 770-Pg. 260-261. Esquenazi and Antoine eventually resolved the problem when Antoine agreed to cut Terras bills, and Terra, in exchange, agreed to pay Antoine 50% of the amount that Terra saved. Doc. 770-Pg. 261-262, 348-349. Terra paid the bribes through conduit companies that were owned by Antoines friends.3/ Doc. 770-Pg. 262264. After Antoine was fired, Alphonse Inevil briefly took over as Telecos Director of International Affairs. Doc. 770-Pg. 294. When Inevil became Telecos General Director, Duperval replaced Inevil as the International Affairs director and replaced Antoine as the recipient of Terras bribes. Doc. 772-Pg. 584-585, 631-639. One of those companies was J.D. Locator, an insolvent equipment company owned by Juan Diaz. Cinergy also used J.D. Locator as a conduit for bribes to Antoine and Patrick Joseph, Telecos General Director at the time. Doc. 770-Pg. 262, 275-276; Doc. 771-Pg. 505.
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During the fall of 2003, Esquenazi helped Duperval establish a shell company, Telecom Consulting Services Corporation (Telecom Consulting), to serve as the conduit for the bribes. Doc. 669-Pg. 66-67; Doc. 773-Pg. 764. Dupervals sister Marguerite Grandison, a nutritionist, was Telecom Consultings president, and James Dickey, Terras in-house counsel, was its registered agent. Doc. 769-Pg. 59, 63-64, 68-69, 118. Esquenazi also helped Grandison open Telecom Consultings bank account.4/ Doc. 769-Pg. 71-72, 126-127, 131. On November 18, 2003, the date that Grandison opened the account, Esquenazi and Grandison signed a phony commission agreement on behalf of Terra and Telecom Consulting; on November 19, Carlos Rodriguez (Terras co-owner) submitted a Repetitive Funds Transfer Set-Up Request to Terras bank to facilitate ongoing payments for consulting fees to Telecom Consulting; and on November 20, Rodriguez authorized a $15,000 transfer to the Telecom Consulting account. Doc. 769-Pg. 73-74, 132-134. During the next four months, Rodriguez authorized six additional wire transfers described as consulting fees. Doc. 769-Pg. 74-75, 134-138; Doc. 772-Pg. 619. Terra paid Telecom Consulting $75,000 in total. GX 606.
Although Duperval testified that he formed Telecom Consulting with his sister and that Esquenazi helped Duperval in setting up the company, Doc. 773-Pg. 763-764, Dupervals name was not on any of the corporate or bank documents.
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The benefits to Terra were substantial. Its service remained connected, and its rate per minute was reduced to an amount that was lower than that extended to its competitors. Doc. 772-Pg. 657-661; Doc. 773-Pg. 797-800. On December 16, 2003, Esquenazi faxed a copy of an e-mail to Duperval confirming the reduction in rates; twenty-two minutes later, Rodriguez wired the second bribe payment to Telecom Consulting. Doc. 772-Pg. 635-636; GX 125, 503. Between November 2003 and January 2004, Terras bills were reduced by about $102,000, and it enjoyed the reduced rates through March 2004. Doc. 772-Pg. 633, 635638. Duperval admitted during an interview with Internal Revenue Service (IRS) agents that he had accepted $10,000 and a Rolex watch from Esquenazi. Doc. 772-Pg. 585. According to Duperval, Esquenazi had paid him for his assistance in resolving the billing disagreement and continuing the contract. Doc. 772-Pg. 585. Duperval also told the agents that he had set up a company in his sisters name called Telecom Consulting and that it never did any work. Doc. 772-Pg. 583-584. B. Cinergys Principals Also Bribe Duperval.
On October 25, 2001, Cinergy and Teleco entered into an agreement concerning a calling card project. Doc. 770-Pg. 268-269. Cinergy agreed to install the necessary equipment and pay for the cards, and Teleco agreed to
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reimburse Cinergy for its costs. Doc. 770-Pg. 271-272; GX 303. To cover its investment in the project, Cinergy demanded a letter of credit from Teleco, and Telecos Board of Directors and Haitis Central Bank ultimately agreed that the bank would issue the letter of credit for $6 million. Doc. 770-Pg. 269-273. Antoine was a big help to Cinergy in procuring the letter of credit, and the company rewarded him, to the tune of about $150,000. Doc. 770-Pg. 273-275. On August 23, 2002 after the letter of credit was in place and the project was set to begin Antoine and Richers amended the original agreement. Doc. 770-Pg. 288. Under the new terms, Cinergy would receive a credit of
approximately 85 million minutes of calling time to be used over a 12- to 18month period (at a minimum of 7,000 minutes per month) in exchange for its investment in the project. Doc. 770-Pg. 278-280. Once the 85 million minutes were used, Cinergy would return the letter of credit and Teleco would own the equipment free and clear. Doc. 770-Pg. 280. The agreement was periodically revised to reflect Cinergys actual use of its allotted minutes and an $890,000 upgrade to the equipment. Doc. 770-Pg. 282-283, 285-287. As to the latter, Teleco agreed to reimburse Cinergy over a six-month period, ending in February 2004. Doc. 770-Pg. 288-289. By August 2003, Cinergy had about 23,000 minutes left on the project and would have to transfer ownership of the equipment in a few months. Doc. 7707
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Pg. 296. The company was concerned that, upon expiration of the contract, Teleco would take its business elsewhere, and Antoine, who by then was a consultant at Cinergy, volunteered to ask Duperval for his help in extending the contract. Doc. 770-Pg. 292-293, 295, 297-298. Antoine met with Duperval in Haiti and offered to pay Duperval 50% of Antoines consulting fee if the contract continued. Doc. 770-Pg. 299-300. Duperval agreed to do whatever he could but demanded a 60% cut instead. Doc. 770-Pg. 299. Between September 2003 and early November 2003, Cinergy wrote five checks totaling $142,460 to Crossover Records, a music company owned by Dupervals brother Lionel. Doc. 770-Pg. 301-302; Doc. 772-Pg. 606-607; GX 602. Once Grandison established Telecom Consulting, Cinergy disguised its bribe payments by writing six checks to Telecom Consulting. The six checks, which totaled $257,339, were for odd amounts and bore phony memos (e.g., interconnection services, Invoice # 043004). Doc. 772-Pg. 617-618; GX 604. Antoines company (Process Consulting) also issued two checks to Telecom Consulting to make up the difference between the amount that Cinergy had paid Duperval through Telecom Consulting and the percentage that Antoine had agreed to pay. Doc. 770-Pg. 302-303, 318-319; GX 605. Teleco kept the contract going while Duperval was still in charge. Doc. 770-Pg. 310-317, 320. On October 10, the same date that Crossover Records
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received two checks from Cinergy, Duperval signed an agreement with Richers that credited Cinergy with more than 13 million additional minutes. Doc. 772Pg. 628-629; GX 336. On February 10, 2004, Antoine emailed Duperval a draft letter that Duperval could send to Richers to justify Cinergys continued participation in the project and its need for additional minutes. Doc. 770-Pg. 315317; GX 348. Three days later, Duperval sent such a letter, stating that Cinergy would be credited with 11,189,934 minutes and that Cinergys usage would be deducted from that amount until its balance reached zero. GX 348. The letter was memorialized in a final settlement signed by Duperval and Richers and dated March 5, 2004, the same date that Cinergy issued a check to Telecom Consulting for $47,009.66. Doc. 772-Pg. 630; GX 349. Duperval also admitted to the IRS agents that Cinergy had bribed him, although, as with Terra, he understated the amount of the bribes. Duperval told the agents that Cinergys owner, Washington Vasconez, offered to pay Duperval two cents for every minute that was added to the contract, Duperval accepted Vasconezs offer, and Vasconez paid him about $150,000. Doc. 772-Pg. 582-584. C. The Bribe Payments Are Transferred to Duperval And Others On His Behalf.
Before October 2003, Duperval kept less than $100 in his credit union account. Doc. 772-Pg. 617. That changed shortly after the companies began
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bribing him. In October and December 2003, there were three wire transfers, totaling $93,000, from the Crossover Records bank account to Dupervals credit union account. Doc. 772-Pg. 611; GX 603. After the Telecom Consulting bank account was opened, Duperval was paid through that account.5/ From March 1, 2004 through March 29, 2005, Grandison wrote 20 checks from the Telecom Consulting account to Duperval and his wife.6/ The checks were all under $10,000 and totaled $63,577.64. Doc. 772-Pg. 621-622; GX 608. She also wrote $49,214 worth of checks to cash in amounts less than $10,000. Doc. 772-Pg. 622623; GX 609. Other Telecom Consulting checks were used to purchase
Dupervals house, pay his mortgage, contribute to his childrens prepaid college programs, and purchase other personal items.7/ Doc. 772-Pg. 623-625; GX 609. 3. Standards Of Review.
Issue 1: The district courts decision not to question jurors individually about whether they had read articles about the case is reviewed for abuse of
Virtually all of the deposits into the Telecom Consulting account (99%) were the bribe payments from Terra, Cinergy, and Antoines company. Doc. 772-Pg. 620-621; GX 607. No money was deposited into the account after Duperval was fired from Teleco. GX 50.
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These checks formed the bases for Counts 10-28.
Duperval told Telecom Consultings tax preparer that the payment for the house was a commission and that some of the personal items were returns on his initial investment in the company. Doc. 770-Pg. 197-199.
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discretion. United States v. Carrodeguas, 747 F.2d 1390, 1395 (11th Cir. 1984). Issue 2: This Court reviews the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences and credibility choices in favor of the jurys verdict. United States v. Demarest, 570 F.3d 1232, 1239 (11th Cir. 2009). Issue 3: The district courts refusal to give a requested jury instruction is reviewed for abuse of discretion. United States v. Svete, 556 F.3d 1157, 1161 (11th Cir. 2009) (en banc). In considering the failure of a district court to give a requested instruction, the omission is error only if the requested instruction is correct, not adequately covered by the charge given, and involves a point so important that failure to give the instruction seriously impaired the partys ability to present an effective case. omitted). Issue 4: Because Duperval did not claim in the district court that the government interfered with his right to obtain favorable testimony from a Haitian official, his due process claim is reviewed for plain error. United States v. Augustin, 661 F.3d 1105, 1122 (11th Cir. 2011), cert. denied, 132 S. Ct. 2444 (2012). Issue 5: This Court reviews the legal interpretation of the money United States v. Williams, 340 F.3d 1231, Ibid. (internal quotation marks and citation
laundering Guidelines de novo.
12381239 (11th Cir. 2003). It reviews the district courts factual findings in
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support of the enhancements for Dupervals role in the offense and his obstruction of justice for clear error, and it reviews the application of those enhancements to the facts de novo. United States v. Williams, 527 F.3d 1235, 1249 (11th Cir. 2008) (role in the offense); United States v. Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006) (obstruction of justice). Dupervals claim of substantive unreasonableness is reviewed under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). SUMMARY OF ARGUMENT 1. The district court did not abuse its discretion by refusing to interview jurors individually about whether they had been exposed to the mid-trial publicity about the case or the Teleco investigation. The news accounts primarily reported about individuals that were either only tangentially related to the trial or matters that were brought out during the trial testimony. The court instructed the jurors repeatedly throughout the trial that they should not read anything even touching on the case and emphasized that they should report any such exposure if it occurred. 2. The evidence sufficiently established that Teleco was an instrumentality of Haiti during the relevant time period. The government, through its national bank, owned 97% of Telecos shares and subsidized Teleco when it could not cover its costs. Haitis president and high-level ministers controlled Teleco
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through their appointment of Telecos board of directors and general director. Telecos status as a government instrumentality is also reflected in Haitian law that subjected Teleco officials to its prohibitions against official corruption. Dupervals narrow construction of the term instrumentality is inconsistent with the terms of the FCPA and Congressional intent. The
prohibitions in the FCPA are expressed broadly and reflect Congresss purpose to combat the problem of pervasive foreign bribery. Dupervals interpretation of the statute is also inconsistent with the provisions of an international treaty and with Congresss explicitly-stated intent, when amending the FCPA, to conform the statute to the treaty. Even if the evidence on the FCPA money laundering predicate were insufficient, Dupervals convictions should be upheld because a reasonable juror could conclude that the funds that Duperval laundered were proceeds of wire fraud or Haitian bribery. 3. The district court did not abuse its discretion by refusing to instruct the jury on Dupervals defense theory that the FCPA did not prohibit Terras and Cinergys bribes to Duperval to facilitate routine governmental action. 15 U.S.C. 78dd-2(b). Even when the evidence is viewed in the light most favorable to Duperval, he has not established that his conduct fell under the statutory exception, which applies only to ministerial actions by low-level foreign officials.
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As Telecos Director of International Affairs, Duperval administered the contracts with Terra and Cinergy, and those companies paid him to use his influence to maintain their contracts. Because there was no evidence to support the defense theory, the government was not required to disprove it. 4. Duperval has not shown that the government interfered with his right to call a defense witness. The government contacted a Haitian official who had provided a declaration to Patrick Josephs defense counsel about Telecos status, and the government assisted the official in drafting a second declaration when the official offered to clarify his statement. The governments conduct was not improper, and nothing in the record suggests that the official was prepared to testify but changed his mind as a result of overbearing conduct by the government. 5. The district court properly applied U.S.S.G. 2B1.1(b)(9)(B), which enhances the base offense level for wire fraud when a substantial part of a fraudulent scheme was committed outside the United States. The money laundering Guidelines applicable to Duperval direct the district court to use the total offense level for the underlying offense as the base offense level for the money laundering offense, and the district court did not clearly err in concluding that a substantial portion of the wire fraud occurred in Haiti.
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The district court did not clearly err in concluding that Grandison and Lionel Duperval were participants in the money laundering offenses and that Duperval supervised them. It also did not clearly err in finding that Duperval obstructed justice by committing perjury at trial. Dupervals testimony that Terra and Cinergy paid him in appreciation for his faithful administration of their contracts was contradicted by Antoines testimony, documentary evidence, and Dupervals own admissions to IRS agents. Dupervals sentence of 108 months, which was the bottom of the advisory Guidelines range, was not substantively unreasonable. The differences between Dupervals and Antoines sentences were a function of Guidelines enhancements that applied to Duperval but not to Antoine. In sentencing Duperval, the district court stated that it took into account the sentencing factors in 18 U.S.C. 3553(a), the advisory Guidelines, and Dupervals arguments. 6. There were no cumulative errors that warrant reversal of Dupervals convictions. ARGUMENT I. The District Court Did Not Abuse Its Discretion By Failing To Question Jurors Individually About Whether They Had Read Articles Pertaining To The Case.
Duperval contends (Br. 29-36) that the district court erred by failing to individually interview jurors about whether they had been exposed to mid-trial
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publicity related to the case. The district court did not abuse its discretion by refusing to question each juror individually and instead questioning the jury as a group. A. Background.
In response to Dupervals request during jury selection, the court questioned prospective jurors about whether they had read any articles about former Haitian president Aristide. Doc. 855-Pg. 5-6, 68. Two jurors stated that they had seen such articles, and neither ended up on the jury. Doc. 855-Pg. 6970, 100, 111-113. Along with other admonitions, the court instructed the selected jurors to avoid all news accounts that say anything about federal criminal case, Haiti, telephone communications, anything like that and to let the court know if they saw or heard anything that fell into those categories because the odds are it wont have anything to do with this case, but just in case, tell me and well look into it. Doc. 855-Pg. 126-128. On the first day of trial, defense counsel informed the court that an article had appeared in the Miami Herald over the weekend that dealt with Aristide and the Teleco bribery scheme and mentioned Duperval by name. Doc. 769-Pg. 2-3. The court denied his request to question the jurors individually. It noted that, even if a juror had disregarded the courts instructions, there was nothing in the article that would prejudice someone, and it preferred to address the jury as a
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group because that way it seems . . . that Im not building it up to a big drama thing. Doc. 769-Pg. 5-6. Accordingly, before opening statements, the court asked the jurors whether they had seen any publicity about this or any other case, and, if they had, to bring it to the courts attention. Doc. 769-Pg. 17-19. The court repeated its cautionary instruction at breaks and at the end of each day. Doc. 769-Pg. 75, 175-176; Doc. 770-Pg. 257, 364; Doc. 771-Pg. 448, 556; Doc. 772-Pg. 646-647, 740; Doc. 773-Pg. 853-854. The following day, a juror sent a note to the court stating that Im aware of Mr. Aristides problems in Haiti, charges of corruption, etc., etc. Doc. 770Pg. 181-182, 308. The court didnt get the impression that [the juror] read anything new, but told defense counsel that it would consider his request that the juror be interviewed. Doc. 770-Pg. 308-309. The next morning, defense counsel informed the court that there had been additional press coverage as a result of the murder in Haiti of Patrick Josephs father. The articles mentioned Josephs cooperation in investigations of Aristide and other senior Teleco officials, Doc. 772-Pg. 560-563, and one article in particular reference[d] the fact that Mr. Duperval, a senior Teleco official, is now on trial in Miami. Doc. 772-Pg. 561. Defense counsel moved for a mistrial, and, in the alternative, requested that the court question each juror individually about whether the juror had seen the publicity or whether the jurors had discussed
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it as a group. Doc. 772-Pg. 564. The court denied the motion for a mistrial and declined to follow counsels proposed procedure because of its concern that individual questioning might poison the jury. Doc. 772-Pg. 565. The court noted that each time that I have asked, I have been told by them that they havent seen anything and havent read anything, and that it suspected that if they had seen [the articles], I would have gotten at least one note, if not four or five this morning because they do not seem to be shy about giving me notes telling me things. Doc. 772-Pg. 565-566; see also Doc. 772-Pg. 567. B. The Courts Handling Of The Mid-Trial Publicity Was Appropriate.
The district court has considerable discretion in deciding how to respond to publicity during the course of a trial. Gordon v. United States, 438 F.2d 858, 873 (11th Cir. 1971). It is for the trial judge to decide at the threshold whether news accounts are actually prejudicial; whether the jurors were probably exposed to the publicity; and whether jurors would be sufficiently influenced by bench instructions alone to disregard the publicity. Ibid. With so many variables involved, every claim of jury prejudice because of newspaper articles appearing during a trial must turn on its own facts from examination of the total circumstances surrounding a given case. Ibid.
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The total circumstances here did not require individualized questioning. First, the material in the articles was not innately prejudicial to Duperval. See United States v. Aragon, 962 F.2d 439, 444 (5th Cir. 1992) (describing first step of inquiry under United States v. Herring, 568 F.2d 1099 (5th Cir. 1978)). The articles about the murder of Patrick Josephs father in Haiti and Josephs cooperation as a possible motive for the murder had no bearing on the proceedings below because there was no evidence that Duperval had any connection with Joseph (who left Teleco before Duperval began). The articles about Aristides corruption also had little relation to this case. Aristide was not charged as a co-conspirator, and the only mention of the former president at trial was that he appointed several officials to their positions at Teleco, fired Antoine, and interviewed Duperval before he began working at Teleco. To the extent that the articles discussed the corruption at Teleco more generally, the jury knew from the testimony at trial that senior Teleco officials (Antoine and Joseph) had accepted bribes and that another individual threatened to expose the corruption at Teleco to the Wall Street Journal. Doc. 771-Pg. 515-516, 541-542. The articles that summarized the indictment and the parties openings were similarly not prejudicial. There was also little likelihood that the jurors saw any of the articles. The court repeatedly instructed the jury that it should not read any articles touching
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on the case in any way. E.g., Doc. 769-Pg. 75, 175; Doc. 770-Pg. 257, 364; Doc. 771-Pg. 556; Doc. 772-Pg. 740. See Carrodeguas, 747 F.2d at 1395 ([T]he likelihood that the information reached the jurors was small, especially in light of the trial courts specific instructions to the jurors not to read or listen to media accounts concerning the trial.). Jurors are presumed to follow their instructions, and there is no reason to believe otherwise in this case. See United States v. Cousins, 842 F.2d 1245, 1248 (11th Cir. 1988) ([T]he trial transcript reflects that throughout the course of Cousins trial, the district court admonished the jury not to read any newspaper account of the case. Nowhere does the record indicate that the jury failed to heed these instructions. We will, therefore, presume that the jurors followed the district courts instructions and did not read the newspaper article.). The district court also reasonably inferred from the jurors frequent communications with the court that they would have reported any exposure to the news if it had occurred. Nor is there any reason to assume the jurors would have been more candid if they were interviewed individually. See Doc. 772-Pg. 563 (I dont think theyre lying to me because its not in their best interest to do so. I think that most of them would just as soon not be here.). Finally, the district courts observation that few people actually read the newspaper or even care about news items, Doc. 772-Pg. 563, was borne out by the fact that only two prospective jurors had seen any reports about Aristide. See United States v.
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Harrelson, 754 F.2d 1153, 1164 n.9 (5th Cir. 1985) (noting that cautionary instructions in highly sensational case were more likely to be effective [g]iven the degree of indifference of these particular jurors to the media revealed by the voir dire). As to the single juror who informed the district court that she was aware of Mr. Aristides problems of Haiti, charges of corruption, etc., etc., Doc. 770Pg. 308, the district court did not abuse its discretion by declining to question her further. The juror did not say that she had seen any articles about Duperval or the case, and her knowledge extended only to general corruption in the Haitian government and Mr. Aristide in particular that had been reported for years. Doc. 772-Pg. 567-568. The court understandably did not want to emphasize that the media were reporting on matters related to the Teleco bribes, and its handling of the jurors note was reasonable under the circumstances. See Harrelson, 754 F.2d at 1163 n.8 (Voir dire regarding particular matter carries the obvious danger of tainting the jurors by informing them of prejudicial circumstances of which they had been unaware. . . . It should therefore be avoided where it properly can be.). The cases that Duperval cites are readily distinguishable. In United States v. Herring, 568 F.2d 1099 (5th Cir. 1978), the district court gave only a brief and inadequate instruction at the beginning of trial, and, unlike here, never told the
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jury to report any exposure to the news. Id. at 1101; compare United States v. Arzola-Amaya, 867 F.2d 1504, 1514 (5th Cir. 1989) (distinguishing Herring on ground that [t]he cautionary instructions were made on two separate occasions and [t]he judge was very careful and very specific. These collective admonitions concerning media coverage were adequate safeguards to ensure that appellants received a fair trial free from prejudice.). In addition, the publicity in Herring was far more sensational; it described death threats against a witness, who was a well-known rock musician, and the story was reported on the front page of the local newspaper with a banner headline mentioning the musicians name. Herring, 568 F.2d at 1103. In United States v. Williams, 809 F.2d 1072 (5th Cir. 1987), the media reported the defendants uncharged criminal conduct, the trial judges expression of outrage over the defendants conduct, and testimony that took place outside the presence of the jury. News photos also showed the defendants being led away from the courthouse in handcuffs and chains. Id. at 1091-1092 & nn.19, 20. Finally, in Aragon, supra, the articles portrayed one of the defendants as an established drug dealer with a criminal history, the others as his co-conspirators, and the three as having ties to a notorious crime family. 962 F.2d at 442. The district court never polled the jury, even as a group, on whether anyone had seen the articles, and its instruction to the jury to avoid reading or listening to media reports about the case was selective, quick[], and
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casual[]. Id. at 445. II. The Evidence Established That Teleco Was An Instrumentality Of Haiti.
Duperval contends (Br. 47-62) that the evidence supporting the FCPA money laundering predicate was insufficient because the government did not prove that Teleco performed a governmental function, and it therefore was not an instrumentality of the Republic of Haiti. Dupervals interpretation of the statute is incorrect, and the evidence sufficiently established that Teleco was an instrumentality under the FCPA. A. Background. Louis Gary Lissade, a former Haitian Minister of Justice and author of a book on public administration in Haiti, testified as the governments expert on Haitian law and the Haitian public administration. Doc. 771-Pg. 430-433. Lissade defined public administration as the instrumentality that the state used to . . . accomplish its mission and also to provide services to the public, Doc. 771-Pg. 432, and testified that, before its privatization began in 2009, Teleco was part of Haitis public administration. Doc. 771-Pg. 434, 467, 478. Lissade explained that Teleco was created when the government of Haiti entered into a contract with two individuals and granted their company a monopoly over telecommunication services in Haiti. Doc. 771-Pg. 435-437. In
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1971 or 1972, Haitis state-owned bank acquired 97% of Telecos stock, and Teleco became a state-owned company that was controlled 100% by Central Bank.8/ Doc. 771-Pg. 437-439, 441. The Central Bank controlled Telecos revenues, and, when Teleco was in a very bad financial situation, the bank advance[d] a lot of money to Teleco and paid its employees. Doc. 771-Pg. 456, 478, 492-493. During the relevant time period, Telecos board of directors was appointed through an executive order signed by Haitis President, the Prime Minister, and two other high-ranking Ministers. Doc. 771-Pg. 441, 446-447; GX 451T. Three of the five board members were public officials, including its president and vicepresident. Doc. 771-Pg. 444-445, 447. Telecos General Director was similarly appointed through an executive order signed by the same government officials. Doc. 771-Pg. 441-446; GX 452T, 453T. In June 2003, the Minister of Public Works appointed Duperval as Telecos Deputy General Director and set his salary. Doc. 771-Pg. 454-455; GX 414T.
Lissade testified that the remaining 3% has never been claimed, and no one knows who owns it. Doc. 771-Pg. 439-440. Lissade also explained that, at some point, Teleco changed the acronym in its name from S.A., referring to private corporations, to S.A.M., reflecting its mixed private-public nature, although the change in designation was never officially authorized. Doc. 771-Pg. 440, 488-489.
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Haitian law recognized Teleco as a state-owned company. In 1996, Haiti passed a modernization law to partially privatize state-owned companies. Doc. 771-Pg. 457. One of the laws provisions specifically named telephones as a State-owned compan[y]. Doc. 771-Pg. 457; GX 455T. In addition, as public agents, officials of Teleco were not allowed to accept bribes. Doc. 771-Pg. 461-464; GX 457T. To help combat corruption, a new law was enacted in 2008 requiring certain government employees of public institutions to declare their assets at the beginning and end of their government employment. The General Director, Deputy General Director, and members of the Board of Directors of Teleco were covered by the provisions of the new law. Doc. 771-Pg. 464-466. Lissade testified that the new law, by explicitly including Teleco within its provisions, confirmed that Teleco was a part of the public administration. Doc. 771-Pg. 467. B. State-Owned Enterprises (SOEs) That Provide Telephone Service To The States Citizens May Qualify As Instrumentalities Under The FCPA.
As relevant here, the Foreign Corrupt Practices Act (FCPA) prohibits domestic concerns and their officers from making corrupt payments to a foreign official for the purpose of influencing the foreign officials actions in order to assist [the domestic concern] in obtaining or retaining business. 15 U.S.C. 78dd-2(a)(1). A foreign official is defined as:
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any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization. 15 U.S.C. 78dd-2(h)(2)(A). When interpreting a statute, the starting point . . . is the language of the statute itself. United States v. Zuniga-Arteaga, 681 F.3d 1220, 1223 (11th Cir. 2012) (quotation marks omitted). In conducting this interpretation, we analyze the language of the provision at issue, the specific context in which that language is used, and the broader context of the statute as a whole. Ibid.; see also, e.g., United States v. Ballinger, 395 F.3d 1218, 1237 (11th Cir. 2005) (statutory language must be read in the context of the purpose it was intended to serve). Because the FCPA does not define the term instrumentality, this Court construes it according to its ordinary meaning. United States v. Frank, 599 F.3d 1221, 1234 (11th Cir. 2010). Blacks Law Dictionary defines instrumentality as [a] means or agency through which a function of another entity is accomplished, (9th ed. 2009), and, as applied here, an instrumentality of a foreign government is an entity through which the foreign government carries out one of its objectives or functions. The government therefore agrees with
Duperval that the instrumentality must perform a governmental function, see,
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e.g., Br. 48, 50-52, 54, but we disagree on what that means.9/ 1. Dupervals Restrictive View Instrumentality Is Incorrect. Of The Term
Duperval contends that SOEs, like Teleco, are not instrumentalities under the FCPA because they do not perform a governmental function similar to a political subdivision. Br. 51-52. That narrow interpretation of instrumentality ignores the fact that governments perform many functions, including selling commercial services to the public, and they do so through entities other than departments, agencies, and political subdivisions. For example, the Supreme Court observed in Lebron v. Natl Railroad Passenger Corp., 513 U.S. 374, 115 S. Ct. 961 (1995), that, even in this country, there is a long history of corporations created and participated in by the United States for the achievement of governmental objectives, id. at 386, 115 S. Ct. at 968, and some of those entities brought the Government into the commercial sale of goods and services, id. at 388, 115 S. Ct. at 969. The governmental objective at issue in Contrary to Dupervals claim, all the district courts that have considered similar arguments have rejected them. See, e.g., United States v. Aguilar, 783 F. Supp. 2d 1108 (C.D. Cal. 2011); Aluminum Bahrain B.S.C. v. Alcoa Inc., 2012 WL 2094029 (W.D. Pa. June 11, 2012); United States v. Carson, 2011 WL 5101701 (C.D. Cal. May 18, 2011). Although Duperval suggests that Carson supports his view, that court cited with approval the district courts denial of Esquenazis motion to dismiss the first indictment (which Duperval had joined), and concluded, consistent with the governments view, that some business entities may be considered an instrumentality, . . . depend[ing] on the nature and characteristics of the business entity. Id. at *8.
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Lebron was decidedly commercial providing improved railroad services to passengers and the Court considered Amtraks furtherance of that governmental goal in concluding that the for-profit corporation was an instrumentality of the federal government for First Amendment purposes. Id. at 383-385, 397-398, 400, 115 S. Ct. at 967, 973-974. See also, e.g., Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 389, 59 S. Ct. 516, 517-518 (1939) (For more than a hundred years corporations have been used as agencies for doing work of the government. Congress may create them as appropriate means of executing the powers of government, as for instance, . . . a railroad corporation for the purpose of promoting commerce among the states.) (quotation marks omitted); Cherry Cotton Mills v. United States, 327 U.S. 536, 539, 66 S. Ct. 729, 730 (1946) (That the Congress chose to call [the Reconstruction Finance Corporation] a corporation does not alter its characteristics so as to make it something other than what it actually is, an agency selected by Government to accomplish purely Governmental purposes, which the Court earlier described as making loans to banks, insurance companies, railroads, and the like). Foreign governments similarly perform certain functions through SOEs, and placing those functions in SOEs does not mean that they are not undertaken on behalf of the foreign government. To the contrary, foreign nations use SOEs to structure their governmental activities in a manner deemed necessary to
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promote economic development and efficient administration. First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 626, 103 S. Ct. 2591, 2600 (1983). By looking to traditional functions performed by American governmental units as the benchmark, Duperval ignores the Supreme Courts observation that the concept of a usual or a proper governmental function . . . varies from nation to nation, id. at 633 n.27; 103 S. Ct. at 2603 n.27, and pays no heed to the foreign governments own determination of what its functions are and what entity should perform them. Dupervals restrictive view of the scope of governmental functions effectively reads the statutory term instrumentality out of the FCPA. Entities encompassed by his definition will almost always fit under one of the other distinct prongs of 78dd-2(h)(2)(A). By not providing real meaning to
instrumentality, Duperval violates a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant. Ballinger, 395 F.3d at 1236 (internal quotation marks and citation omitted). Dupervals construction is also inconsistent with Congresss purpose in enacting broad prohibitions against corporate bribery. Congress was concerned with the problem of corporate bribery because, among other reasons, it was bad
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business. S. Rep. 95-114, at 4 (1977); see also, e.g., id. at 3 (bribery hamper[s] the efficient functioning of our capital markets); H.R. Rep. 95-640, at 4 (1977) (Corporate bribery erodes public confidence in the integrity of the free market system and short-circuits the marketplace by directing business to those companies too inefficient to compete . . . or too lazy to engage in honest salesmanship, or too intent upon unloading marginal products.); United States v. Kay, 359 F.3d 738, 749 (5th Cir. 2004) (Congress was obviously distraught not only about high profile bribes to high ranking officials, but also by the pervasiveness of foreign bribery by United States businesses and businessmen.). As a result, the statute cast a[] wide net over foreign bribery. Ibid. In light of the significant role that foreign government instrumentalities played in their countries developing economies at the time that the FCPA was enacted, see First National City Bank, 462 U.S. at 624-625, 103 S. Ct. at 2598-2599,10/ Dupervals contention that Congress meant to exclude the mine run of government entities that were not agencies or departments when it used the broad term any instrumentality runs counter to the statutes language and purpose.
See also Bureaucrats in Business: The Economics and Politics of Government Ownership, World Bank Policy Research Report at 268, Table A.1 (1995) (showing that, according to World Bank data, state-owned enterprises in developing countries constituted about 10% of the GDP in 1978).
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The routine governmental action exception in the FCPA, 78dd-2(b), also supports the governments interpretation of the statute. Under the so-called grease exception, individuals and companies can pay foreign officials to perform certain ministerial governmental actions without running afoul of the FCPA, and the description of those routine governmental actions includes commercial activities. See 78dd-2(h)(4)(A). Significantly, providing phone service is one of the items on that list, reflecting Congresss view that foreign officials ordinarily and commonly perform[] such actions. See ibid. Duperval invokes the statutory canon of ejusdem generis, but that doctrine does not further his point. The Supreme Court has explained that the rule of ejusdem generis, which limits general terms [that] follow specific ones to matters similar to those specified, does not apply where, as here, the term at issue is not a general or collective term following a list of specific items to which a particular statutory command is applicable. CSX Transportation, Inc. v. Alabama Dept. of Revenue, 131 S. Ct. 1101, 1113 (2011); see also Garcia v. United States, 469 U.S. 70, 75, 105 S. Ct. 479, 482 (1984) (the ejusdem generis rule did not apply because the terms in question are made separate and distinct from one another by Congress use of the disjunctive.). Moreover, even assuming that the doctrine applies, Duperval ignores the reality that SOEs, like departments and agencies, are often governed by public laws, directly managed by government-appointed officials,
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draw from and contribute to the public fisc, and carry out important government policies and functions. Duperval argues that Congresss explicit inclusion of SOEs in the definition of an agency or instrumentality of a foreign state in the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1603(b)(2), and in the definition of foreign government in a provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act pertaining to the disclosure of payments to foreign governments by resource extraction issuers, 15 U.S.C. 78m(q)(1)(B), indicates that Congress knew how to include such language in the FCPA, but chose not to do so. Br. 56. That argument does not hold up. The FSIAs detailed and limited definition of instrumentality was needed because the restrictive theory of sovereign immunity generally posits that a foreign state shall enjoy immunity from suit in actions involving the states sovereign or public acts but not its commercial activities. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 151 (D.C. Cir. 1994) (summarizing Supreme Court cases). It was also important to define agency and instrumentality in the FSIA because, unlike the FCPA, the FSIA treats an agency and instrumentality differently from either a foreign state or its political subdivisions. See 28 U.S.C. 1608, 1610. It therefore seems unlikely that, when Congress enacted the broadly-worded FCPA the year after it enacted the more restrictive FSIA, it intended to exclude SOEs from its
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coverage without explicitly saying so. Cf. United States v. Townsend, 630 F.3d 1003, 1011 (11th Cir. 2011) (If Congress had intended to exclude intangibles from the scope of 18 U.S.C. 666, it easily could have done so.). Even less relevant is Section 78m(q)(1)(B)s definition of foreign government. That provision, which was enacted more than 30 years after the FCPA in a specific and unrelated context, says little about Congresss use of the term instrumentality in the FCPA. Similarly, the cases that Duperval cites in support of his definition of instrumentality are inapposite because they interpret the term in contexts other than the FCPA. See United States ex rel. Chicago, New York & Boston Refrigerator Co. v. Interstate Commerce Commission, 265 U.S. 292, 295, 44 S. Ct. 558, 559 (1924) (acknowledging that because words used in one statute have a particular meaning they do not necessarily denote an identical meaning . . . in another and different statute.); Securities Industry Assn v. Board of Governors, 468 U.S. 137, 174175, 104 S. Ct. 2979, 2999 (1984) (dissent) (In determining the meaning of a term in a particular statute, the meaning of the term in other statutes is at best only one factor to consider, and it may turn out to be utterly irrelevant in particular cases. Congress need not, and frequently does not, use the same term to mean precisely the same thing in two different statutes, even when the statutes are enacted at about the same time.); United States v. Diallo, 575 F.3d 252, 258
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(3d Cir. 2009) (refusing to apply the definition of use of a firearm as construed in Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501 (1995), to use of a counterfeit mark, in violation of 18 U.S.C. 2320(a)). Indeed, the cases make clear that context is critical in defining instrumentality under the specific statute at issue. See Hall v. American National Red Cross, 86 F.3d 919, 921-922 (9th Cir. 1996) (concluding that the Red Cross was not an instrumentality of the federal government for purposes of liability under the Religious Freedom Restoration Act, but stating that [a]s with many other government-chartered corporations, the legal status of the Red Cross has varied depending on the context in which it has been examined); Edison v. Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010) (interpreting the words instrumentality of a State as used in the Americans With Disabilities Act in a manner consistent with their plain meaning and context and concluding that a private prison management corporation that operated a Florida state prison was not an instrumentality of a State merely because it contracted with [a] public entity to provide some services); United States v. Orleans, 425 U.S. 807, 816, 96 S. Ct. 1971, 1977 (1976) (considering Congressional intent and principles of sovereign immunity to conclude that a local community action agency that was funded by federal grants and ran a neighborhood center was a contractor with the federal government rather than a federal agency or instrumentality under the Federal Torts Claim Act).
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2.
Dupervals Interpretation Of The Statute Does Not Comport With U.S. Treaty Obligations.
This Court should also reject Dupervals narrow interpretation of instrumentality because it is inconsistent with the Organization of Economic Cooperation and Developments (OECD) 1997 Convention on Combating Bribery of Foreign Officials in International Business Transactions (the Convention), which the Senate ratified in 1998. See Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) ([A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.); Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 539, 115 S. Ct. 2322, 2329 (1995) (If the United States is to be able to gain the benefits of international accords and have a role as a trusted partner in multilateral endeavors, its courts should be most cautious before interpreting its domestic legislation in such manner as to violate international agreements.). Because Congress legislates against the backdrop that includes those international norms that guide comity analysis, absent a contrary legislative direction the doctrine may properly be used to interpret any statute. In re Maxwell Communication Corp., 93 F.3d 1036, 1048 (2d Cir. 1996). As relevant here, the Convention required the parties to criminalize bribes to a foreign public official, Convention, Art. 1.1., which it defined as, among
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other things, any person exercising a public function for a foreign country, including for a public agency or public enterprise, id. at Art. 1.4(a). The Commentaries to the Convention, in turn, explain that: a public enterprise is any enterprise, regardless of its legal form, over which a government, or governments, may, directly or indirectly, exercise a dominant influence. This is deemed to be the case, inter alia, when the government or governments hold the majority of the enterprises subscribed capital, control the majority of votes attaching to shares issued by the enterprise or can appoint a majority of the members of the enterprises administrative or managerial body or supervisory board. An official of a public enterprise shall be deemed to perform a public function unless the enterprise operates on a normal commercial basis in the relevant market, i.e., on a basis which is substantially equivalent to that of a private enterprise, without preferential subsidies or other privileges.11/ Id. at cmt. on Art. 1.4. Dupervals construction of the statute to exclude employees of SOEs like Teleco would mean that the United States is out of compliance with its treaty obligations under the Convention. Congress clearly did not intend such a result. It implemented the Convention through its 1998 amendments to the FCPA, see The International Anti-Bribery and Fair Competition Act of 1998, Pub. L. 105-366 (1998), and, as relevant here, added a category to the FCPA definition of foreign official (employee of a public international organization) that was
During the relevant time period, Teleco was a public enterprise under the Convention because it was state-owned, state-controlled, held a state-granted monopoly, and received preferential subsidies.
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included in the Convention but not previously covered by the FCPA, see Presidential Statement on Signing the International Anti-Bribery and Fair Competition Act of 1998 (This Act makes certain changes in existing law to implement the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.). By not similarly amending the statute to add employees of public enterprises, Congress understood that the FCPA already included them. As the Fifth Circuit explained in construing a different provision of the FCPA, given the United Statess ratification and implementation of the Convention without any reservation, understandings or alterations specifically pertaining to its scope, we would find it difficult to interpret the statute as narrowly as the defendants suggest. Kay, 359 F.3d at 755 n.68. That conclusion is equally warranted here. 3. The Legislative History Should Not Be Considered, Nor Does It Support Dupervals Position.
This Court need not resort to the legislative history of the FCPA because the plain meaning of instrumentality, when considered in the context of the statutes structure and purpose, is unambiguous. See, e.g., Ballinger, 395 F.3d at 1239 (where anomalous results produced by the Appellants strained reading of [statute at issue] also plainly defeat the statutes clear purpose and statutory language is unambiguous, resort to legislative history [is] unnecessary).
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Consulting the legislative history is especially unwarranted in light of Dupervals concession that the legislative history does not offer a clear definition of the term instrumentality. Br. 53. See Lamie v. United States Trustee, 540 U.S. 526, 539, 124 S. Ct. 1023, 1033 (2004) (Though we find it unnecessary to rely on the legislative history behind the [statute at issue], we find it instructive that the history creates more confusion than clarity about the congressional intent.). Even if the Court were to consider the legislative history, it does not support Dupervals position.12/ See Aguilar, 783 F. Supp. 2d at 1119 (Although [the legislative history] does not demonstrate that Congress intended to include all state-owned corporations within the ambit of the FCPA, neither does it provide support for Defendants insistence that Congress intended to exclude all such corporations within the ambit of the FCPA.). Although the legislative
Duperval relies on a 144-page declaration by a proposed defense expert that was filed on behalf of the defendants in Carson, No. 09-00077-JVS (C.D. Cal.). Although Duperval suggests that this Court may take judicial notice of the declaration because it relates to legislative history, the declaration selectively reviews the legislative history and draws inferences in support of a defense motion to dismiss the indictment. As such, it is not necessarily the statement of a disinterested expert, it was not reviewed as a scholarly article, and it was never subject to impeachment in the case below. Even the district court in Carson did not rely on the declaration because it concluded that resort to the legislative history of the FCPA [was] unnecessary. Carson, 2011 WL 5101701, at *8. If the Court is inclined to consider the defense affidavit, the government asks the Court to similarly consider the declaration of FBI Special Agent Brian Smith, also filed in Carson, that discusses references to SOEs in the legislative history. Carson Doc. 334-Pg. 27-30.
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history includes references to the impact of corruption on traditional government officials, Br. 53, Duperval has not identified a single statement that supports his position that the FCPA cannot apply to employees of SOEs. Moreover, Congress enacted the FCPA against a backdrop of foreign governments increasing use of SOEs to conduct their affairs, and it was aware that companies were bribing SOE employees. See Duperval Br. at 53 and citations to Carson defense affidavit therein; Smith Declaration at 56-60. 4. Dupervals Vagueness Challenge Is Misplaced And The Rule Of Lenity Does Not Apply.
Duperval further argues (Br. 58-59) that, as applied to his conduct, the FCPA is unconstitutionally vague. The problem with Dupervals argument is that he was not convicted of violating the FCPA. Dupervals convictions were for money laundering, and he has not claimed that the money laundering statutes are unconstitutionally vague. Nor could he prevail on such a claim. The touchstone of vagueness analysis is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendants conduct was criminal. United States v. Lanier, 520 U.S. 259, 267, 117 S. Ct. 1219, 1225 (1997). Duperval was surely on notice that his conduct was illegal when he transferred money that he knew were proceeds from Cinergys and Terras bribery scheme through a conduit that he created to conceal the source of the funds. See
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United States v. Awan, 966 F.2d 1415, 1424 (11th Cir. 1992) ([T]he requirement that the government prove that a defendant knew that the proceeds stemmed from felonious activity do[es] much to destroy any force in the argument that application of the [statute] would be so unfair that it must be held invalid.) (internal quotation marks and citation omitted); United States v. Jackson, 935 F.2d 832, 839 (7th Cir. 1991) ([T]he requirements of intent and knowledge [in Section 1956] do [] much to destroy any force in the argument that application of the [statute] would be so unfair that it must be held invalid, especially with regard to the adequacy of notice to the complainant that his conduct was proscribed.) (internal quotation marks and citations omitted; alteration in original). Dupervals claim that he did not know whether Teleco or its employees were subject to the FCPA, Br. 59, is beside the point. The charged money laundering offenses do not require proof that Duperval knew that he was laundering proceeds from an FCPA violation; it was enough that he knew that the money involved in the transactions represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony under State, Federal, or foreign law, 18 U.S.C. 1956(c)(1), or were derived from proceeds obtained from a criminal offense, 18 U.S.C. 1957(f)(2). For similar reasons, Dupervals reliance on the rule of lenity is unsupported. Duperval does not contend that the terms of the money laundering
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statutes are ambiguous.
In addition, even if there were some grievous
ambiguity, Muscarello v. United States, 524 U.S. 125, 138-139, 118 S. Ct. 1911, 1919 (1998), as to the meaning of the FCPA predicate and, for the reasons discussed above, there is not there is no such ambiguity as to the wire fraud and Haitian bribery predicates. C. A Reasonable Juror Could Find That Teleco Was An Instrumentality Of Haiti.
Based on Lissades testimony, a reasonable juror could conclude that Teleco was an instrumentality of Haiti. The Haitian government, through its national bank, effectively owned Teleco in its entirety. Thus, when Teleco was in a very bad financial situation, the bank had to come to its rescue and support the company with public money. Doc. 771-Pg. 493. Teleco was also managed and controlled by government appointees. Haitis President, Prime Minister, and two other high-ranking ministers appointed Telecos General Manager and Board of Directors, and the Minister of Public Works appointed Duperval to his position and determined his salary. Haitis public bribery laws applied to officials at Teleco, and the jury could conclude, from the passage of the 2008 anti-corruption law, that Teleco was part of Haitis public administration because its general director, deputy general director, and board members were required to declare their assets. See page 24 supra and citations therein.
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Antoine similarly testified that Teleco was a state-owned company; that he had been a government employee when he worked at Teleco; and that he understood that Duperval was a government employee when Antoine bribed him. Doc. 770-Pg. 323. Antoine also stated that President Aristide appointed Patrick Joseph as director; that the Haitian National Police were stationed as security in Josephs Teleco suite; and that Josephs car had official license plates. Doc. 770-Pg. 248-250. Juan Diaz described Teleco as the national phone company. Doc. 771-Pg. 500. Dupervals co-conspirators at Terra also believed that Teleco was an instrumentality of Haiti. In its application for political risk insurance, Terra described Teleco as a government-owned telecommunications company, Doc. 771-Pg. 459, and, to expedite the processing of its insurance application, Terras in-house counsel offered to provide the insurance broker with a letter from Telecos president that Teleco is an instrumentality of the Haitian government, Doc. 771-Pg. 460; see also GX 138. Duperval primarily argues that the evidence was insufficient because the government did not prove that Teleco perform[ed] a governmental function akin to a department or agency.13/ Br. 60. As previously discussed, that standard is Duperval did not request a jury instruction to that effect. Nor did he object to the courts instruction that defined instrumentality by referencing a list of non-exclusive factors that the jury could consider in reaching its determination.
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incorrect, and the government was not required to meet it. Duperval also argues that Lissade only opined that Haiti Teleco was part of the public administration . . . a term that is different from the FCPAs instrumentality. Br. 60. Even if the two terms technically differ, Lissades testimony that Teleco was part of the public administration (i.e., the instrumentality that the state used to . . . accomplish its mission and also to provide services to the public, Doc. 771-Pg. 432) was relevant to, and highly probative of, Telecos status under the FCPA. And, Dupervals claim that the governments instrumentality theory ignores evidence that Teleco operated as a private company, Br. 61, is made in the wrong forum. Duperval argued that same point to the jury, Doc. 774-Pg. 936-938, and the jury reasonably rejected it in light of the countervailing evidence. Finally, even if this Court were to conclude that the evidence was not sufficient to support the FCPA violation as a source of the illegal funds that Duperval laundered, it does not matter because the evidence was sufficient to prove the wire fraud and Haitian bribery predicates. Cf. Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466 (1991) (a general verdict on multi-object conspiracy count may be upheld where evidence on one of the objects was factually insufficient); United States v. Browne, 505 F.3d 1229, 1261 (11th Cir. 2007) Doc. 755-Pg. 21-22.
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(Reversal of . . . a conviction on a substantive RICO count is not required simply because some predicate acts are factually insufficient, as long as there remain at least two adequately proven acts.). The Haitian bribery laws, which apply to a public official or any agent or officer of a public authority, GX 457T, do not depend on the FCPA definition of foreign official, and wire fraud does not impose any limitation as to the status of the participants. The evidence also sufficiently established the other elements of those offenses. See pages 52-53 infra. III. The District Court Did Not Abuse Its Discretion By Denying Dupervals Requested Instruction On The Routine Governmental Action Exception To The FCPA.
Duperval contends (Br. 37-41) that the district court erred by refusing to give his requested instruction that the FCPA does not prohibit payments to a foreign official for performing a routine governmental action. See 15 U.S.C. 78dd-2(b), (h)(4)(A). The evidence did not support the proposed instruction, and the district court correctly rejected it. A. Background.
Duperval requested that the court instruct the jury on the routine governmental action exception to the bribery prohibitions in the FCPA, Doc. 751 at 3, because what he was doing at Teleco when it came to the crediting of minutes, adjustment of rates was doing nothing more and nothing less than
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administering a contract, Doc. 773-Pg. 858-859. The court denied the request. It concluded that Dupervals actions were not similar to those listed in Section 78dd-2(h)(4)(A), and that the instruction, while an accurate statement of the law, [was] not applicable to the facts of this case or to the evidence thats been presented. Doc. 773-Pg. 863. B. Dupervals Job Functions Were Not Routine Governmental Actions And The District Court Did Not Abuse Its Discretion By Rejecting His Proposed Instruction.
The trial court must instruct the jury on a defendants theory of defense as long as it has some basis in the evidence and has legal support. United States v. Dean, 487 F.3d 840, 847 (11th Cir. 2007). Dupervals had neither. The routine governmental action exception is limited. It applies when a bribe is paid to facilitate routine, non-discretionary acts generally performed by low- or mid-level foreign officials. Kay, 359 F.3d at 750-751. In distinguishing such payments from illegal bribes prohibited under the FCPAs otherwise broad reach, Congress meant to exclude payments which merely move a particular matter toward an eventual act or decision or which do not involve any discretionary action, such as a gratuity paid to a customs official to speed the processing of a customs document or payments made to secure permits, licenses, or the expeditious performance of similar duties of an essentially ministerial or clerical nature which must of necessity be performed in any event.
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H.R. Rep. No. 95-640, at 8; see also Kay, 359 F.3d at 750 (A brief review of the types of routine governmental actions enumerated by Congress shows how limited Congress wanted to make the grease exceptions.). To qualify for the exception, the payment must be for an action that is of a similar nature to those included on the statutory list. 15 U.S.C. 78dd-2(h)(4)(A). On the other hand, the exception does not include 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. 15 U.S.C. 78dd-2(h)(4)(B). As Kay correctly observed, that provision must mean, conversely, that decisions that do relate to continu[ing] business with a particular party are covered by, i.e., are not excepted from, the scope of the statute. Kay, 359 F.3d at 752-753. Even when the evidence is viewed in the light most favorable to the defense, it does not support Dupervals theory that he was merely paid for performing the types of ministerial actions that are outside the FCPAs bribery prohibitions. Dupervals high-ranking position alone calls into question the application of the exception as does the size of Terras and Cinergys repeated payments for Dupervals favors.14/
14/
Even more telling is Dupervals own
The FCPA originally excluded grease payments by focusing on the recipient of the payments and excluding from the definition of foreign official any employee of a foreign government or any department, agency, or
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testimony that he administer[ed] and manage[d] the contracts with the foreign telecommunications companies, which squarely places his conduct outside the exception. Doc. 772-Pg. 687; Doc. 773-Pg. 786. See H.R. Conf. Rep. No. 100576, at 918 (1988) (the reference to corrupt payments for retaining business in present law . . . includes a prohibition against corrupt payments related to the execution or performance of contracts or the carrying out of existing business). Dupervals description of his job responsibilities also makes clear that they were not similar in nature to the examples in Section 78dd-2(h)(4)(A). See Doc. 772Pg. 699, 728 (reviewing existing contracts); Doc. 772-Pg. 696, 711; Doc. 773-Pg. 792-793, 810 (attending meetings in which rates were set and other contractrelated matters were discussed); Doc. 773-Pg. 786-787 (approving the final bills to Terra and Cinergy); Doc. 772-Pg. 687 (bringing in the revenues at Teleco). Dupervals explanation for the $500,000 payment similarly shows that Terra and Cinergy were not merely paying him to perform ministerial actions. According to Duperval, Terra appreciated that [he] was administering the contract in a fair instrumentality thereof whose duties are essentially ministerial or clerical. 15 U.S.C. 78dd-2(d)(2) (1977). That method proved difficult to apply in practice, S. Rep. 100-85, at 53 (1987), and both the House and the Senate bills proposed amendments that focused instead on the purpose of the payment. Ibid.; H.R. Rep. 100-40, at 77 (1987). The House Report also stated that, in deciding whether payments ostensibly for routine governmental action are a subterfuge for other prohibited payments, a court may determine that a payment which is unusually large in relation to the governmental action performed may not fall within this defense. Ibid.
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manner, Doc. 773-Pg. 800; appreciated that Duperval agreed that they were entitled to a lower rate, Doc. 773-Pg. 802; andappreciate[d] getting reconnected to Teleco, Doc. 773-Pg. 801. Cinergy appreciated Duperval even more; its corrupt principals paid Duperval more than $400,000 because these people had finally found somebody that would entertain [a] proper relationship with them. Doc. 772-Pg. 762. In support of his claim, Duperval argues that he did not have the authority to approve contracts or set rates on his own,15/ but he provides no support for the proposition that the FCPA prohibitions are limited to bribes to the ultimate decision-maker. To the contrary, the statute prohibits bribes to a foreign official for the purpose of influencing any act of the official in order to assist the briber in obtaining or retaining business, Section 78dd-2(a)(1)(A)(i), and it specifically excludes from the routine governmental action category any action taken by a foreign official involved in the decision-making process to encourage a decision . . . to continue business with a particular party, Section 78dd-2(h)(4)(A) (emphasis added). Dupervals involvement in decisions pertaining to the Terra and Cinergy contracts satisfies those criteria. See page 47 supra; see also Doc. 773-Pg. 790 (Duperval was afraid that Terra would sue Teleco and while I was director of In fact, in his capacity as Director of International Affairs, Duperval signed binding agreements with Cinergy. See, e.g., GX 336, 338, 339, 342, 345, 349.
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International Affairs, I think I prevented Teleco from being sued); Doc. 773-Pg. 797 (Duperval was willing to reconnect [Terra] to discourage them from going into the gray market). Dupervals defense theory thus lacked foundational support, and the district court did not abuse its discretion in refusing to give his proposed instruction. See, e.g., United States v. Palma, 511 F.3d 1311, 1316 (11th Cir. 2008) (Even assuming arguendo that . . . defense [of innocent transitory possession of firearm] were available, it was not supported by the evidence in this case, and the district court did not abuse its discretion in refusing to instruct the jury on the defense). Duperval also cannot show that the rejection of his requested instruction substantially impaired his defense. Viewed as a whole, the instructions informed the jury that it had to find that Terra and Cinergy acted corruptly, that is, with the intent to induce [Duperval] to misuse . . . his official position, Doc. 755-Pg. 20, and that they paid him for purposes of influencing any act or decision in his official capacity or in securing any improper advantage in order to obtain or retain business, Doc. 755-Pg. 19; see also Doc. 755-Pg. 20 (jury must find [t]hat the payment was made to assist the person in obtaining or retaining business for or with, or directing business to, any person). Based on those instructions, Duperval argued that the two companies did not pay him for his assistance in obtaining or retaining business and that he merely administered the contracts
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according to their terms. See Doc. 774-Pg. 938-946, 950-951, 953-955. He also emphasized that whenever there was a decision, [Duperval] couldnt make it on his own. Doc. 774-Pg. 951. C. The Government Was Not Required To Disprove Dupervals Claim That Terra and Cinergy Paid Him For Performing Routine Governmental Actions.
For the same reasons, there is no merit to Dupervals contention that the government failed to prove the non-applicability of the statutory exception after he testified that in exchange for the money he received, he did nothing more than perform a routine governmental action. Br. 61-62. Duperval did not meet his burden of production in support of his defense, and the government was not required to disprove it.16/ Even if Duperval had met his burden of production, the government disproved it beyond a reasonable doubt. In addition to Dupervals testimony at trial, which established that his job did not involve routine governmental
In support of his allocation of the burden of the proof, Duperval simply cites this Courts decision in United States v. Kloess, 251 F.3d 941 (11th Cir. 2001), without discussing the issue further. That case involved an affirmative defense that negated an element of an obstruction of justice offense, 18 U.S.C. 1512(b)(3). Because the grease exception does not negate an element of an FCPA offense and Duperval does not argue to the contrary Kloesss discussion of the allocation of the burden of proof does not apply to this case. See Smith v. United States, 133 S. Ct. 714, 719 (2013) (The State is foreclosed from shifting the burden of proof to the defendant only when an affirmative defense does negate an element of the crimes.) (internal quotation marks and citation omitted).
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actions, an IRS agent testified that Duperval admitted that the companies paid him to continue their contracts. Doc. 772-Pg. 582-585 (Cinergy paid him to continue the contract and Terra paid him after he reviewed Terras documentation and decided to continue its contract). Antoines testimony similarly demonstrated that Dupervals conduct was not the type of routine action excepted from the statute. Cinergy paid Duperval to keep the Cinergy contract going, Doc. 770-Pg. 300-301, 398, and Duperval met his side of the bargain by crediting Cinergy with additional minutes, Doc. 770-Pg. 311, 316. The documentary evidence (e.g., email correspondence between Duperval and the Terra and Cinergy principals, revisions to the Cinergy contract, rate reductions for Terra) likewise disproved Dupervals purported affirmative defense. D. Any Error Was Harmless.
Even if the district court erred by refusing to give Dupervals requested instruction or the government failed to disprove Dupervals defense beyond a reasonable doubt, the error was harmless. The defense only pertained to the FCPA money laundering predicate, and the evidence overwhelmingly established that the funds that Duperval laundered were also the proceeds of wire fraud and violations of Haitian bribery laws. See Skilling v. United States, 130 S. Ct. 2896, 2934 (2010) ([E]rrors of the Yates [v. United States, 354 U.S. 298, 77 S. Ct. 1064 (1957)]) variety are subject to harmless-error analysis.); Fordham v. United States,
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706 F.3d 1345, 1348 (11th Cir. 2013) (noting that instructional error on alternative theory of guilt is subject to harmless error analysis), pet. for cert. filed, Apr. 26, 2013 (No. 12-9978), Apr. 30, 2013 (No. 12-1307). The evidence overwhelmingly established that Cinergy and Terra participated in a scheme to defraud Teleco by secretly bribing Duperval to obtain financial benefits for their companies (e.g., reduced rates and additional credits for minutes that extended the contract) for their companies. See Doc. 770-Pg. 299-304, 310-319, 402-404, 411412; Doc. 771-Pg. 526, 546-547. The co-conspirators testimony was
corroborated by the companies efforts to disguise the true nature of the bribes (e.g., using conduits, falsely categorizing the bribes as consulting fees or international minutes, creating phony consulting agreements), the amounts and timing of the bribes (often near the time that the companies received some benefit, Doc. 772-Pg. 628-638), Dupervals false statements to Telecom Consultings tax preparer about the source of the funds deposited into the account, Doc. 770-Pg. 197-200, and Dupervals admissions to the IRS agents, Doc. 772-Pg. 582-585. There was also uncontested evidence of interstate and foreign faxes and e-mails that were sent in furtherance of the scheme. See, e.g., Doc. 769-Pg. 66-67, 69-70; Doc. 770-Pg. 312-313, 315-316. As to the Haitian bribery predicate, uncontroverted evidence established that Duperval was a public official under Haitian law, see Doc. 771-Pg. 462-463, GX 457T, and the evidence
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summarized above similarly demonstrates that Terra and Cinergy principals attempted to corrupt Duperval by offering him $500,000 for a benefit of any type, GX 457T. IV. Duperval Has Not Demonstrated That The Government Improperly Obtained An Affidavit From A Haitian Official.
Duperval contends (Br. 41-47) that the government violated his right to due process by depriving him of an essential defense witness. Duperval did not raise that claim below, and he has not established that the government interfered with his ability to call the witness. A. Background.
Four days after the jury returned the verdict against co-conspirators Joel Esquenazi and Carlos Rodriguez and almost seven months before Dupervals trial began, the attorney for Patrick Joseph, whose client still faced FCPA-related charges, forwarded to the government a July 26, 2011 declaration from Haitis Minister of Justice (and Prime Minister), Jean Max Bellerive. Doc. 561-Pg. 9. That declaration concluded, in substance, that Teleco has never been and until now is not a State enterprise. Doc. 543-1-Pg. 4. The government promptly disclosed the declaration to the defendants. Doc. 609-Pg. 24. In its responses to Esquenazis and Rodriguezs various motions, the government explained that it was surprised to receive the declaration in light of
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the Haitian governments consistent and unwavering support for its investigation and prosecutions, and it therefore reached out to representatives of the Haitian government, including Mr. Bellerive, to ascertain the origin and purpose of the July 26th declaration. Doc. 584-Pg. 8-9. Bellerive offered to clarify his statements, and the government assisted Mr. Bellerive in preparing a second declaration. Doc. 561-Pg. 10. Bellerive explained that he signed the July 26 declaration strictly for internal purposes relating to Telecos modernization and did not know that it was going to be used in criminal legal proceedings in the United States or that it was going to be used in support of the argument that, after the takeover by [Haitis central bank] and before its modernization, Teleco was not part of the Public Administration in Haiti. Doc. 563-1-Pg. 4-5. Esquenazi and Rodriguez requested an evidentiary hearing on questions arising from the Bellerive declarations. Docs. 543, 581, 586. Although Duperval did not join in those motions, he joined Esquenazi, Rodriguez, Grandison, and Joseph in asking the court to schedule a status conference to establish a timetable for the submission of motions on the declarations and a date for an evidentiary hearing if one were needed. Doc. 566. The court denied the motions. Doc. 609. Duperval did not seek further relief. At trial, both he and the government agreed not to explore that topic [the Bellerive declarations] during their
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examination of Lissade. Doc. 771-Pg. 427. B. Duperval Has Not Demonstrated That The Government Interfered With His Right To Call Bellerive As A Witness, Let Alone That The Governments Conduct Amounted To Plain Error.
Duperval claims that the government contacted the government of Haiti to enlist its assistance in convincing Prime Minister Bellerive to recede from his officially stated position, Br. 45-46, but he has no facts to back up that accusation.17/ Cf. United States v. Bates, 600 F.2d 505, 511 (5th Cir. 1979) (condemning unsubstantiated cavalier and reckless allegations that prosecutor threatened defense witness). Although Duperval characterizes the governments explanations for its conduct following receipt of the first Bellerive declaration as disingenuous, Br. 43, 46 n.10, his inference from the uncontested sequence of events that Bellerive was pressured to change his statement, Br. 46 n.10, is unsupported. The government has a right to interview potential witnesses, United States v. Girod, 646 F.3d 304, 311 (5th Cir. 2011), and there is no evidence that it engaged in the kinds of tactics (e.g., threats, coercion, selective perjury warnings) that courts have found to impermissibly interfere with a witnesss decision to
Unlike Esquenazi and Rodriguez, Duperval did not specifically request a hearing, and he does not challenge on appeal the district courts failure to order discovery. That claim is therefore abandoned. See United States v. Levy, 416 F.3d 1273, 1275 (11th Cir. 2005) (holding that an argument not raised in an appellants opening brief is deemed waived).
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testify. This case is therefore unlike those that Duperval cites to support his due process claim. See Br. 44-45 (citing Webb v. Texas, 409 U.S. 95, 97-98, 93 S. Ct. 351, 353 (1972) (judge singles out defense witness to warn him of danger of perjury and assures him that he would be prosecuted and probably convicted); United States v. Hammond, 598 F.2d 1008, 1012-1013 (5th Cir. 1979) (FBI agent threatens defense witness that if he continued with his testimony he would have nothing but trouble at his own trial); United States v. Hendricksen, 564 F.2d 197, 198 (5th Cir. 1977) (plea agreement prohibited a defense witness, who would exonerate the defendant, from testifying in any manner regarding the defendant); United States v. Morrison, 535 F.2d 223, 226-228 (3d Cir. 1976) (prosecutor repeatedly warned defense witness that she could be prosecuted during intimidating interview); United States v. Thomas, 488 F.2d 334 (6th Cir. 1973) (agent told defense witness that he would be prosecuted for misprision of a felony if he testified)). Duperval also has not explained how the government interfered with his ability to call Bellerive as a witness. Unlike the cases he cites, there is nothing in the record to suggest that Bellerive was prepared to testify for the defense and changed his mind as a result of the governments (or the trial courts) improper interference. See, e.g., Girod, 646 F.3d at 312 (correlation between agents interviews with witnesses and their decision not to testify is not enough;
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[defendant] must at a minimum prove causation); United States v. Garmany, 762 F.2d 929, 937-938 (11th Cir. 1985) (no indication that witnesss failure to testify resulted from witnesss fear of retaliation by prison officials; In order to substantiate his constitutional claim, appellant must establish, as a threshold matter, that the governments action worked to deprive him of a witness who could have testified on his behalf.). Because Duperval has not demonstrated that the government improperly interfered with a favorable defense witness, Br. 45, or that Bellerives failure to testify was the result of the governments conduct, his due process claim fails. V. Dupervals Sentence Should Be Affirmed.
Duperval contends (Br. 62-71) that the district court erred in calculating his advisory Sentencing Guidelines and that his 108-month sentence was substantively unreasonable. Those claims lack merit. A. Background.
The Presentence Investigation Report (PSR) calculated Dupervals base offense level for the money laundering offenses by applying the Guidelines for the underlying wire fraud predicate. PSR 70 (applying U.S.S.G. 2S1.1(a)(1)). The PSR thus started with a base offense level of six, Section 2B1.1(a)(2), and then applied a 14-level enhancement under Section 2B1.1(b)(1)(H) because the offense involved more than $400,000, and a two-level enhancement under
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Section 2B1.1(b)(9)(B) (since redesignated as 2B1.1(b)(10)(B)), because a substantial part of the fraudulent scheme was committed from outside the United States. PSR 70. Using that final offense level under Section 2B1.1 (level 21) as the base offense level for calculating the advisory Guidelines range for money laundering, the PSR then applied an additional two-level enhancement under Section 2S1.1(b)(2)(B) because the offense involved a conviction under 18 U.S.C. 1956 and a two-level enhancement under Section 2S1.1(b)(3) because the offense involved sophisticated laundering. PSR 71-72. The PSR also
recommended a three-level enhancement for Dupervals role in the offense under Section 3B1.1(b), PSR 74, and a two-level enhancement under Section 3C1.1 for obstruction of justice based on Dupervals testimony at trial and false statements to the IRS agents, PSR 66-67, 75. With a criminal history category of I and a total offense level of 31, Dupervals advisory Guidelines range was 108 to 135 months of imprisonment. PSR 79, 82, 110. As relevant here, Duperval objected to the two-level increase for committing a substantial portion of the scheme outside the United States and to the enhancements for his role in the offense and for obstructing justice. Doc. 806. The district court rejected Dupervals arguments and adopted the calculations in the PSR. Doc. 850-Pg. 23. It stated that there [was] ample evidence that [Duperval] supervised two or more people, perhaps three, but
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definitely two, and that the . . . enterprise had more than five participants. Doc. 850-Pg. 9; see also Doc. 850-Pg. 7 (I think theres ample evidence that he supervised at least two [referring to Marguerite Grandison and Lionel Duperval], if not more than two, people.). The court also concluded that the enhancement for obstruction of justice was justified. It acknowledged that people have a constitutional right to defend themselves but characterized Dupervals testimony about the reasons for Terras and Cinergys payments as ludicrous and perjurious. Doc. 850-Pg. 15-16. The court added that its finding did not even take[] into consideration the very real possibility that [Dupervals] understating the amount [of the bribes] and failing to mention one of the conduits for the money [Crossover Records] in his initial interviews with the government may be enough in and of itself. Doc. 850-Pg. 16. Finally, the court rejected Dupervals argument that the two-level enhancement under Section 2B1.1(b)(9) did not apply because the money laundering scheme took place almost exclusively in the United States. Doc. 850-Pg. 21. The court reasoned that it was hard to argue that a substantial part of the scheme did not take place outside the United States when the gravamen of the offense was money laundering for paying bribes to a Haitian person involved with the Haitian telephone system. Doc. 850-Pg. 18. Duperval asked the court to grant a downward variance from the Guidelines range. Doc. 850-Pg. 28.
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unwarranted disparities with Antoine and Patrick Joseph, who laundered four to five times more money than Duperval but whose advisory Guidelines were not enhanced for their role in the offense or the sophistication of the money laundering scheme. Doc. 850-Pg. 28-32. He also urged the district court to consider his devotion to his family, his positive influence on his children, and the isolated nature of his crime. Doc. 850-Pg. 33-39. After considering the statements of all the parties, the presentence report which contains the advisory guidelines and the statutory factors, the district court sentenced Duperval to 108 months of imprisonment. Doc. 850-Pg. 45. B. The District Court Did Not Err In Calculating The Guidelines. 1. The Foreign Location Of The Fraudulent Scheme.
Duperval first argues that the application of the specific offense characteristic in Section 2B1.1(b)(9)(B), which adds two levels when a substantial part of a fraudulent scheme was committed from outside the United States, was unwarranted and erroneous because the money laundering offense occurred only within the United States. Br. 63. His analysis is flawed. To establish the base offense level for a money-laundering offense, Section 2S1.1 of the Sentencing Guidelines uses the total offense level for the offense underlying the money laundering. United States v. Menendez, 600 F.3d 263, 267
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(2d Cir. 2010) (collecting cases); see also Sentencing Guidelines Manual App. C (Vol. III) 736 (For direct money launderers (offenders who commit . . . the underlying offense which generated the criminal proceeds), subsection (a)(1) sets the base offense level at the offense level in Chapter Two (Offense Conduct) for the underlying offense (i.e., the base offense level, specific offense characteristics, cross references, and special instructions for the underlying offense.)). As applied here, the district court had to first calculate the offense level for the wire fraud predicate, including the specific offense characteristic at issue here. Accordingly, the relevant inquiry was whether a substantial part of [the wire fraud] scheme was committed from outside the United States. U.S.S.G. 2B1.1(b)(9)(B). Although the parties and the district court considered the specific offense characteristic as it applied to the money laundering scheme, the government also argued that a substantial portion of the wire fraud scheme and the bribery scheme took place in Haiti, and the court agreed.18/ Doc. 850-Pg. 21. That finding was not clearly erroneous. Antoine presented the fraudulent scheme to Duperval in Haiti; the companies and Dupervals fraud allowed Terra and Cinergy to send calls to Haiti; Duperval participated in the scheme from
This Court may affirm the district courts decision on any ground supported by the record, even if not relied on by the district court. United States v. Chitwood, 676 F.3d 971, 975 (11th Cir.), cert. denied, 133 S. Ct. 288 (2012).
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Haiti, and Telecos bills were generated there. Doc. 850-Pg. 20-21. 2. Role In The Offense.
Duperval next contends that the district court erred in applying a three-level enhancement for his role in the offense because Marguerite Grandison and Lionel Duperval were not participants in the crime. Section 3B1.1(b) provides for a three-level enhancement when a defendant is a manger or supervisor and the criminal activity involved five or more participants or was otherwise extensive. The commentary specifies that the defendant must have been the . . . manager or supervisor of one or more other participants, and it defines a participant as a person who is criminally responsible for the commission of the offense, but need not have been convicted. U.S.S.G. 3B1.1 comment. (n.1), (n.2). The government established, by a preponderance of the evidence, that Grandison and Lionel Duperval were knowing participants in the money laundering scheme. Grandison was personally involved in establishing the shell corporation and its bank account, which were integral to the money laundering scheme. See page 5 supra and citations therein. The company was also an obvious sham. Although Grandison was the president of Telecom Consulting, she could not answer basic questions about its operations, and she provided false information to the companys tax preparer. Doc. 770-Pg. 186-188, 190-191. As the sole account holder for Telecom Consulting, she received checks and wire
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transfers from Terra, Cinergy, and Process Consulting (Antoines company), with memos that she had to know were false, and she wrote numerous checks from the Telecom Consulting bank account to Duperval and his wife in amounts less than $10,000. GX 604-606, 608. Based on that evidence, the court could properly infer that Grandison knew that the deposits into the Telecom Consulting account were illegal proceeds. Although Lionel Duperval was less involved in the scheme, the suspicious circumstances surrounding the funds in and out of his companys bank account similarly supported the inference that he knew that the deposits were from illegal activity. Although Crossover Records did no business with Uniplex or Cinergy, Doc. 769-Pg. 163-164, five checks from UniPlex Telecom (four of which had invoice in the memo line) were deposited into Crossovers account (which previously had a balance of $297.55) between September 3 and November 6, 2003, totaling $142,460. GX 8.1, 602. The money did not stay in the account for long; between October 14 and December 5, 2003, $93,000 was transferred to Dupervals Miami credit union account. (Two of those wire transfers show Lionel as the originator; the third was illegible). Doc. 772-Pg. 610-617; GX 29.1-29.3, 603. The district court could also consider that Lionel was Dupervals brother and infer that Lionel knew that Duperval was using the family business, Doc. 773-Pg. 773, as a conduit for the receipt of illegal payments. Cf.
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United States v. Brodie, 403 F.3d 123, 151 (3d Cir. 2005) (A rational jury, moreover, could legitimately consider the relationship between the [the brothers who ran the company] in drawing reasonable inferences about [one brothers] knowledge and intent.) Even if Lionel were not considered a participant under the Guidelines, the enhancement is still supported because there were at least five participants in the schemes without him. Thus, the participants in the Terra scheme included, in addition to Duperval, its two principals, the in-house counsel, Antoine, and Grandison. Antoine and Grandison similarly were participants in the Cinergy scheme, as were Cinergys three principals. Moreover, the enhancement requires that Duperval manage or supervise at least one participant but not necessarily more. See United States v. Njau, 386 F.3d 1039, 1041 (11th Cir. 2004) (seeing no error in district courts finding that defendant supervised at least one person in the scheme); United States v. Velazquez-Armas, 335 Fed. Appx. 912, 915 (11th Cir. 2009 ) (The assertion of control or influence over only one individual is enough to support a 3B1.1 enhancement.). And, Duperval clearly supervised or managed Grandison when he directed her to complete the paperwork related to Telecom Consulting and its bank account and then transfer the funds from the account directly to Duperval or others on his behalf.
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3.
Obstruction Of Justice.
Duperval also has failed to show that the district court erred in enhancing his offense level for obstruction of justice. Dupervals testimony that the
companies paid him close to $500,000 as a token of their appreciation for faithfully administering the contracts was contrary to the evidence and, in effect, a denial that Terra and Cinergy had bribed him. See United States v. Williams, 627 F.3d 839, 845 (11th Cir. 2010) (concluding that district court clearly erred in not enhancing defendants sentence for obstruction of justice when defendants testimony was irreconcilable with the record). Although Dupervals perjurious testimony at trial supported the enhancement on its own, Dupervals false statements to the IRS agents provided additional support for the district courts finding. As a result of Dupervals representation that he received only $150,000 from Cinergy, agents did not discover the bribes deposited into the Crossover Records account for another five years. Doc. 850-Pg. 13-14; see also Doc. 769-Pg. 98 (IRS agent testified that the investigators were not aware of the significance of Crossover Records until they received copies of Cinergys invoices to Crossover Records in 2011.). By the time the investigators learned about Crossover Records role in Dupervals money laundering scheme, the bank had destroyed relevant documents. Doc. 769-Pg. 99; Doc. 772-Pg. 611-613. See United States v. Alpert, 28 F.3d 1104, 1107 (11th
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Cir. 1994) (Certain uncooperative conduct deserves enhancement under 3C1.1 if it actually obstructs justice.). The district court also did not err by failing to recite the word willful in concluding that the enhancement was justified. The court explicitly found that Dupervals testimony that he was paid for doing a good job was ludicrous and perjurious. Doc. 850-Pg. 16. Those findings necessarily implied that Dupervals testimony was the result of a willful intent to provide false testimony. United States v. Dunnigan, 507 U.S. 87, 94, 113 S. Ct. 1111, 1117 (1993); see also United States v. Miller, 607 F.3d 144, 152 (5th Cir. 2010) (The district courts findings in this case do not include an explicit finding of willfulness and they need not.); United States v. Vallejo, 297 F.3d 1154, 1168 (11th Cir. 2002) (It is sufficient . . . that the district court makes a general finding of obstruction of justice that encompasses all of the factual predicates of perjury.) (quotation marks omitted). 4. Substantive Unreasonableness.
Finally, Duperval contends that his sentence was substantively unreasonable because more culpable participants in the scheme received lower sentences. He also summarily argues that the district court failed to consider the sentencing factors listed in 18 U.S.C. 3553(a).
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[S]ubstantive review exists, in substantial part, to correct sentences that are based on unreasonable weighing decisions. United States v. Irey, 612 F.3d 1160, 1194 (11th Cir. 2010) (en banc). Thus, this Court will reverse a sentence as substantively unreasonable only when it is left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the [18 U.S.C. 3553(a)] factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case. Ibid. Although this Court does not automatically presume that a sentence falling within the guidelines range is reasonable, it ordinarily expects that such a sentence is reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). Duperval has not met the high burden for establishing that his sentence was substantively unreasonable. First, because he was sentenced for his money laundering convictions, his comparison to FCPA sentences is inapt. He also cannot use Patrick Joseph to support his sentencing disparity argument because Joseph had not been sentenced at the time of Dupervals sentencing. Doc. 845. Any disparity between Dupervals and Antoines sentence (which, at the time, was a within-Guidelines sentence of 48 months of imprisonment, Doc. 850-Pg. 33) was a function of the Guidelines, which took into account the amount of money that each man laundered but also reflected real differences between the two co-conspirators. Antoine accepted responsibility for his criminal conduct
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early on, and, unlike Duperval, did not obstruct justice or create his own fictitious shell corporation solely for the purpose of laundering his illegal bribes. Doc. 850Pg. 40-41. Moreover, if the district court had reduced Dupervals sentence because his Guidelines were enhanced for factors that were not applied to Antoine (e.g., managerial role in the offense, Doc. 850-Pg. 30), it would have created another, wholly unwarranted disparity between the defendant receiving the adjustment and all similar offenders in other cases. United States v. Regueiro, 240 F.3d 1321, 1326 (11th Cir. 2001) (internal quotation marks and citation omitted). Finally, in imposing sentence, the district court stated that it considered the parties arguments, specifically mentioning Dupervals argument about unwarranted sentencing disparities, the statutory sentencing factors, and the PSR, Doc. 850-Pg. 33, 45, and Duperval has not demonstrated that the district court improperly weighed the pertinent factors. See United States v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009) (stating that a district court need not discuss each 3553(a) factor in explaining its sentence as long as it considers the defendants arguments at sentencing and states that it has taken the 3553(a) factors into account).
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VI.
There Were No Cumulative Errors That Require Reversal Of Dupervals Convictions.
Finally, Duperval asserts (Br. 71-72) without argument that the cumulative effect of the errors he alleges requires reversal. None of the errors he alleges, viewed individually or together, justifies reversal of the convictions. See United States v. Capers, 708 F.3d 1286, 1299 (11th Cir. 2013) (rejecting cumulative error claim where defendant has failed to demonstrate, or offer any explanation, for how the aggregate effect of the[] errors substantially influenced the outcome of his trial, as required to establish that cumulative error rendered his trial unfair).
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CONCLUSION The judgment of the district court should be affirmed. Respectfully submitted, WIFREDO A. FERRER United States Attorney Southern District of Florida MYTHILI RAMAN Acting Assistant Attorney General Criminal Division DENIS J. MCINERNEY Acting Deputy Assistant Attorney General Criminal Division JAMES M. KOUKIOS Assistant Chief Fraud Section, Criminal Division DANIEL S. KAHN Trial Attorney Fraud Section, Criminal Division /s/Kirby A. Heller KIRBY A. HELLER Attorney United States Department of Justice Criminal Division, Appellate Section 950 Pennsylvania Ave., NW Room 1264 Washington, D.C. 20530 (202) 307-0085
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CERTIFICATE OF COMPLIANCE I hereby certify that this brief was prepared in a 14-point proportionally spaced font (Calisto MT) using WordPerfect X4, that the brief contains 16,193 words, excluding the parts of the brief exempted by 11th Cir. R. 32-4, and that the brief complies this Courts order of May 15, 2013, granting the governments request for leave to file a brief containing up to 17,000 words.
/s/ Kirby A. Heller KIRBY A. HELLER Attorney United States Department of Justice
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CERTIFICATE OF SERVICE I hereby certify that seven copies of the foregoing Brief for the United States were mailed to the Court of Appeals via Federal Express this 20th day of May, 2013 and that, on the same day, the foregoing brief was filed using CM/ECF and served via CM/ECF on John E. Bergendahl, counsel for Duperval.
/s/ Kirby A. Heller KIRBY A. HELLER Appellate Section, Criminal Division U.S. Department of Justice
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DOJ Brief in Duperval Appeal

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DOJ Brief in Duperval Appeal

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Case: 12-13009

Date Filed: 05/20/2013

No. 12-13009-CC IN THE

United States Court of Appeals

Date Filed: 05/20/2013

/s/ Kirby A. Heller KIRBY A. HELLER Attorney, U.S. Department of Justice

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The Courts Handling Of The Mid-Trial Publicity Was Appropriate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A Reasonable Juror Could Find That Teleco Was An Instrumentality Of Haiti.. . . . . . . . . . . . . . . . . . . . . . . . . . 41

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There Were No Cumulative Errors That Require Reversal Of Dupervals Convictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

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These checks formed the bases for Counts 10-28.

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laundering Guidelines de novo.

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Duperval that the instrumentality must perform a governmental function, see,

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