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DOJ Response Brief - O'Shea Matter

DOJ Response Brief - O'Shea Matter

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Published by Mike Koehler

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Published by: Mike Koehler on Mar 29, 2011
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07/02/2013

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF TEXASHOUSTON DIVISIONUNITED STATES OF AMERICA §§v. §
 
§
CRIMINAL NO. H-09-629
JOHN JOSEPH O’SHEA §RESPONSE OF THE UNITED STATES TO DEFENDANT’SMOTION TO DISMISS INDICTMENT
O’Shea’s Motion to Dismiss is premised on the nonsensical notion that officialsof an electric utility created, governed, and owned by the Mexican government are not“foreign officials.” The Motion should be denied because the plain language andlegislative history of the Foreign Corrupt Practices Act (“FCPA”) reject O’Shea’sposition, as has every court that has addressed the issue.BackgroundThe Indictment alleges that “Comisión Federal de Electicidad (“CFE”) was anelectric utility company owned by the government of Mexico” that, at the time “wasresponsible for supplying electricity to all of Mexico other than Mexico City.”Indictment ¶ 5. Under the Mexican Constitution, the supply of electricity is
solely
agovernment function. Exhibit A (Mexican Constitution, translated by theOrganization of American States). Specifically, Article 27 provides:It is exclusively a function of the general Nation to conduct, transform,distribute, and supply electric power which is to be used for public
Case 4:09-cr-00629 Document 50 Filed in TXSD on 03/28/11 Page 1 of 22
 
service. No concessions for this purpose will be granted to privatepersons and the Nation will make use of the property and naturalresources which are required for these ends.
Id 
. Under the Public Service Act of Electricity of 1975, the organic law that createdCFE, CFE is defined as “a decentralized public entity with legal personality and itsown patrimony.” Exhibit B (Electric Power Public Utility Service Law of 1975,certificate of translation and official translation). Article 10 provides that CFE’sGoverning Board is composed of the Secretaries of Finance and Public Credit, SocialDevelopment, Trade and Industrial Development of Agriculture and Water Resources,and Energy, Mines, and State Industry, and Article 14 provides that the “President of the Republic shall appoint the Director General.”
Id.
Consequently, CFE is part of the Mexican government, mandated by its constitution, formed by its laws, owned inits entirety by the people of Mexico, and constituted to serve the public.I. T
HE
M
OTION
S
HOULD
B
E
D
ENIED
B
ECAUSE
O
FFICERS OF
CFE
 
A
RE
P
ROPERLY
P
LED AS
F
OREIGN
O
FFICIALS
A. The Motion to Dismiss Is PrematureO’Shea’s argument is premature because it is premised upon a question of fact.The Indictment properly alleges that officers of CFE are “foreign officials.”
See
Fed.R. Crim. P. 7(c)(1) (providing that indictment shall provide a “plain, concise anddefinite written statement of the essential facts constituting the offense charged”);
seealso Hagner v. United States
, 285 U.S. 427, 431 (1932);
United States v. Gonzales
,
2
Case 4:09-cr-00629 Document 50 Filed in TXSD on 03/28/11 Page 2 of 22
 
436 F.3d 560, 568-69 (5th Cir. 2006) (both holding that indictment is sufficient if italleges elements of the offense and provides sufficient notice to the defendant for double-jeopardy purposes).The law affords the United States the opportunity to present evidence at trialconcerning the ownership, control, and nature of CFE to demonstrate that it is anagency and instrumentality of Mexico. A “foreign official” is defined in the FCPAasany officer or employee of a foreign government or any department,agency, or instrumentality thereof, or of a public internationalorganization, 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). O’Shea’s Motion focuses solely on whether CFE is a“government instrumentality,” but the evidence at trial will demonstrate that CFE isan agency and instrumentality under the statute. A pretrial motion is not theappropriate vehicle for seeking dismissal of an indictment when the motion turns ondisputed factual issues.
See United States v. Flores
, 404 F.3d 320, 324 (5th Cir. 2006)(“The propriety of granting a motion to dismiss an indictment under Rule 12 bypretrial motion is by-and-large contingent upon when the infirmity in the prosecutionis essentially one of law or involves determinations of fact.”). Because O’Shea’sMotion turns on facts surrounding the nature of CFE, it should be denied on
3
Case 4:09-cr-00629 Document 50 Filed in TXSD on 03/28/11 Page 3 of 22

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