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flkfa "'Ah:ateI Standard, A,G.t }lnd ALCATEL CENTROAMERICA, S.A., f/k/n "Alcatcl de Costa Ricl.,S.A.,n


___________ -_........., __ ","J


p:.LIDCTHIC ION FOJl RELIEF ]>URSU.:\NTTO 18 P.'S.C, § 37'Ufdl(3}


Defendants Alcatel-Lucent France, S,A. ("Alcate! CIT'), Alcatel-Lucent Trade International AU ("Atcatel Standard"), and Alcatel Centroarneriea, S.A. ("ACR"), hereby oppose El lnstituto Costarricenae de 8kctrlcidad's ("ICE") Petition for ReliefPursuant t() 1 g lLS.C. §3771(d)(3) and Objection toPle'1Agrecments and Deferred Prosecution Agreement C'PetitkmH) and supporting Memorandurn ofLaw(",Brief')(coHectivcly,;'Motiml"). In

Motion, ICE datms that it is enlitledt()festltution ,IS part of these proceedings and that the: agreements reached by the parties are not inthe interests oFjustkc and should be rejected by the Court.

leE's Motion for restitution should be denied J~Jr two independent reasons. First, ICE is not entitledto n::stitution because it was a participant in the conduct underlying the offense to which Defendants wil I be pleading guilty. As is the case with the Defendants, we have every reason to believe that the individuals principally responsible I~)r 11m misconduct are no longer

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employed by ICE, Hcwever.the fact remains that ICE was iii co-participant in the crime.and as such.Is lneligible forrestitution under the applicable federal statutes.

Second. the Court should reject ICE's Motion because a determination of restitution would unduly complicate and prolong thesentencing process. fCE made similar claims for damages in criminal proceedings thatjust concluded in Costa Rica. There, the court held that ICE had failed to sufficiently plead its purported damages and must instead bring civilclaims against the defendants to seek recovery for its alleged damages. This Court should similarly decline to attempt to adjudicate ICE's damages claims, the resolution of which is moresuited to acivil trial than a criminal sentencing proceeding.

j:'inaHy, the Courtshould reject ICE's objection to thePlea Agreements and the Deferred Prosecution Agreement t'DPA");' The resolution reached by the parties after afive-year investigation and lengthy plea negotiations is a fair OUi\ is 111 the interests ofjusticc, andshould be accepted by the Court.


I. Any Order of Rcstituti(l11 in This Case Is Lell to the Sound. l)ist:retion of the Court

Generally speaking, a determination of restitution in a fcdcralcriminnlcascls governed by athree-part statutory scheme comprisedoftheCrime Victims'Rights Act ("CVRA:'), 18

U.S.C. § 3171(e),. the Victim and Witness Protection Act t'VWPA"), § 3663, and the

Mandatory Victim Restitution Act ("MVRA "), id.§ 366$.11.. The CVRA grants.certnin enumerated tights to "crime victims=who are.harmed "usa. resultof'the commission of a Federal offensC{)f an offense in the District o[Coiumhia.'" Id. § 377J(c).Pcrsolls afforded "crime "kUrn" status under the CVRA are cntitledto several rights, among them "[t]hc right to fiill and timely restitution asprovided in law:' Id: § 377l{a)(6)(emphusis added}. Thus, the CVRA does not create an independeni.right ofrestiWtiol1, hut Wmerely protects the right to-receive restitution thatisprovided tot elsewhere." United 5'trifes v. AtrS/are,,; Cast Iran Pipe (:0., 612F. Supp. 2d

TCE cites no aurlicrityfor the proposition that a purported victim hasa right to challenge a DPA. The applicable statutes authorize restitution only "when sentencing.a defendant convictedei an offense." 18 fJ.S.C. §§ 366J(a)(I)(A), 3663A(a)( 1) (emphasis added). By definition. a deferred prosecution agreement means there has been no conviction.

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453,458 (D,NJ. 20(9) (quoting In re Doe, 26417. App'x260, 26211,2 (4th Cif. 2007)).

The two statutes potentially creating a right to restitution hi this case are the V WPA and MVRA. The VWPA, which provides for discretionary restitution, applies to all offenses arising underTitle 18, except those reserved formandatory restitution in the MVRA See 18 U.S.c.

§ 3663(0)(1 )(A); Atlantic Stales, 612 F. Supp. 2d at 482 ("TheVWPA (discretionary restitution statute) applies to an offenses.arising underTitle 18, as well as other specified statutes, except those carved out for mandatory treatmentin tne MVRi\. "). ]11e MVRA, on the: other hand, applies only to three types of'offenscs: (Ijcrimes of violence; (2) offenses against property under either Title 1 S, or under section 4J 6(a) of the CcnttolledSubstances Act, including any offensecommitted by fraud or deceit: and (3) offenses described in section 1365 of Title 18, related 10 tampering with consumer products. I it U..s.c. § J663A(c)(1)(A)(i~iii) (20 J 0). Thus, the MVRA applies here only if'the-offenseef coovicrion=conspiracy to violate the Foreign Corrupt Practices Act ("FCPA")""''''-{;Ollstitutes "an offense ngainstpropcrt)-<'!

ICE strenuously argues that thelVlVRAapplies here. In farge measure.whether the MVRA or VWPA applies here is irrelevant because the principalgrounds againstrestttation here-c-narnely, (i) that as a co-particlpant in the criJne,fCE is not entitled to restitution and (1) that the Court .shoulddecline to order restitution berebeeause of thecemplexlty of the issues underlying any restitution determination-c-apply equally underthe VWPA and the MVRA See United Slates v. Lazarenko; 624·1'3d l247, 1249 11.2 (9th Cir, 2(10) (explaining that there is 110 material difference betweenthe V\VPA and the MVRA., apart from the rnandatory natureof'the MVRA, and.nnting that the cQurl'$ analysis of a co-pat'tic]paht'sinahllity to recover restitution under the MVR:'\ 4PpHes.eqnaIJytotheVWPA); UnitedStatff,',;v.·.()sluna, 4S3FJd.I048. 1063 (8thCir. 2(06) (equating the complication exceptionsof the VWPAand the. MVRA), Thus, the particular statute under which the analysis is conducted is, to <I large extent, irrelevant

In any event, to Defcndantsvknowledge, nocourt has ever' held that a violation of the FCPA Of cons pi rae)' to viclate the FCP .. \ constitutes an offensengninstpn;>pcrty, Ml)rCOVCr, the Eleventh Circuit has expressly declined to l1Qld that bribery more generally constitutes "an offense against propcl1y" or otherwise comes under the MVR.A. United SImes \I. McNair, 6U5 .F.3d 1152, .1221 n.107 (lIth Cir. 2{)1O) ("WesuCl spomeno{e there isa potential issue of


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whether bribery is 'an offense against property' covered by§ 3663A(c) andwhethertho j'vlVRA applies to bribery crimes. 1 S U.S.C. § 3663A(c). Nothing herein should be read as implying the answer to that question. "), cert. denied,lJ! S. Ct. 1600(2011); see also United Stares v. Huff. 609F.3d 1240~ 1241 (llth Cir, 201O) (relying, in a case involving both wire fraud and bribery offenses, on the wire fraud offense to satisfy the "offense against property" prong of the MVRA). The Eleventh Circuit has, however, upheld arr.crdercf'rcstitution under the VWPALor a defendant convicted of'bribery and conspiracy to commit bribery, McNair, 605 F.3d at i 216- 24.

Moreover, other courts that have examined the question have analyzed bribery cases under the VWPA insteadof the MVRA See United Slates v, Gamma 'Tech Indus .. Inc .• 265 F.3d 917, 920-26 (9th Cir .. 2001) (enalyzing.a case involving a kickback scheme under the VWPA):

United Stolt!s 1'. Vaj,:nin, 112 1".30 579, 58:2 (151. Cir, 1997) (analyzing a case involving bank bribery under the VWPA). Accordingly, the Court's determination of the instant Moticm is governed by the VWPA.

U. As II Co-Pnrticfpant in the Crime, Jell: Is Not Entitled to Relief

Absentextraordinary cireumstances.t'a participant in a crime-cannot recover restitution."

Lazarenfm,624 F3d atI252;see:aiso United States v. Ret/ler, 446 F.3d 65, 127 (2d Cir, 2006) (holding that to permit co .. ccnsplrators to recover restitutien would be "an error so fimdamental ' and so adversely reflecting on the public reputation ofthe judicial prnccedh1gs that we may, and do, deal with it sua .'ipOnle"), 111 determinirig whether apurported victim Wi"S a "perticipant" l.mdcrthe federal victims' protection statutescourts examine whether the victim took part in the oftcnsefor which the defendant wasconvleted.See Reijler, 446 FJd at lZJ; United States IJ. ()jeik(Jre~ 545 F.3d 210,222-23 (2aCit. 2008).

Here, 1GB readily admits that former members ofits top management took part in the criminalconduct, and the government's key wirnessadmined that lCE'sfbrmerofilci;;!ls solicited the bribes that were-ultimately paid byAlcatel, S.A. or its subsidiaries ("Alctltel"), In its Motion, ICE admits that-five of its former directors and senior management accepted bribes from Alcatcl, See PeL'I'1 lO-12;Br. at I., 11~14, In fact, at least three of seven former members

• MleErs hoard of directors were directly involved in Alcatel's misconduct by.acceptingcorrupt


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payments: Jose Antonio Lobo Solem; Joaquin Alberto Fcmandez AIJar6; and TIernan Victor Bravo Trejos, In addition, Guido Sibaja Fonseca, the advisor to the then Executive President of ICE, Pablo Cob.was also accused of taking a "reward" from Alcatcl, CompL'1[22, Procuradurla General de [a Republica de Costa Rica 11, Alcatel CIT{Nov, 25,2004) (Expediente No, 04-006835-647-PE (109-04)) (Ex. 1). And atlcasr one other unidentified '~rCE Official" is alleged to have accepted corrupt payments flom AlcatcLSee United.States II, Alcatel-Lucent France, S.A" No.1: I O-CR~20906, PIM Agreement, Statement of Facts '148 (8.1). Fla. Feb, 22, 201 J). Several of these individuals have been criminally prosecuted in Costa Rica for their conduct and sentenced to terms of imprisonment, See Pet ~ 11; He at 13~14. Furthermore, the Gevcrnment's key cooperator, ChdslhmSQPsizhm, stHtedthat former ICE offic1nls-not A.lcatel--'initiated the bribery scheme by soliciting bribes from Alcatel and the other telecommunications companies vying for the contracts. See Startls Conference Tr. 22.:4-U, May 11,2011 (hereinafter "Tr.").

Just as Alcatel 'isresponsible, ICE itself is responsible forthe lCE-Alcatel bribery scheme because its top management, including several members of its board-of.directors and senior officers, actively participated in the bribery. See Loco/ISI4. In! '{ LongS}lOremen's Ass'n, AFL~ CIO V, NLRB, 735 F2d 1384, 1395 (D.c. Cir. 1984) (holding that union wasproperty held responsible for actions of its highest officers in accepting kickbacks). lCl~'s()wn responsibility here is bolstered by one o f the casesit cites, Williams Elecfr(jilic Games, 'tne. v. Garri(}I, 366 FJd 569 (7th Cir, 2Q(4). There, the. court concluded that the employer in.question was an innocent victim because the cmplQycrdid·I1Qtknow, and was.not negligent in.fhiHng to know, of themiscanduct of a singleenployee, Id. at 575 .. 76, BuflJnHkc the Qx:lrrily ease, the conduct at issue in this case was not ctmfincdtQ a single rogue employee. Instead, it implicated many individuals at the highest levels of ICE's management under circumstances where the corporation did nothing to ilnposccontrols to prevent it until afterthe fact

To. award ICErestittrtion under the victims' protection statutes in this case would be to permit ICE to deny its responsibility for instigating and perpetu.atIng the corruptcenduct inCosta Rica. Because courts uniformly find that criminal schemes may not recover restitution under the crime victims' protection statutes, leE's claim for restitution here should be

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HI. Grml1ing ICE's Motion Would Unduly }J;urui;lu the Sentencing Process

Under the VWPA, a court may decline to order restitution where "complication and prolongation ofthe sentencing process resulting' from the fashioning 0]' an order of restitution under this section outweighs the need to provide restitution to any victims." J 8 U.S.C.

S 3663(a){J )(B)(ii.). The Senate Report addressing passage of the VWPA notes that "[tjhe Commitree added thisprovision to prevent sentencing hearings from becoming prolonged and complicated trials on the.questionofdamages owed the victim." S. Rep. No .. 97~532., at 31 (1982), reprinted in 1982 U,S.C.C.A.N. 2515, 2537. Similarly,ln1der tho MVRA, a court may decline to order restitnticn where "determining complex issues offact related to the cause or amount of the victim's tosses would complicate or prolong the sentencing process that the: need to provide restitution to any victim is outweighed by the burden on the sentencing process." 18 U.S,c. § 3663A{c){3)(ll).

This "cornpdcationexception" clllJsfol""awcighing of'the burden thatwouldbe imposed on the court by adjudicating restitution inthecriminalcaseagainst (he burden rhatwould be imposed on the victim byleavinghim or her-to other available legal remedies." United Stales v. Kones.Tl F.3d 66, 68~69 (3d tiL J 9(6), Here, gratlting ICiI'sMotion would require the Court to reject the Plea Agreements in full find resolve numerous complex issues of fault. damages, and

ICE correctly points (jut that foreign· govemmentsmay be considered victims under the crime victim sUltutes.But the cases ()nwliich IC.E rc1iestosupPOtf that propositionrnercly reflect the distinction courts draw between victims andpnrticipantsintt criminal scheme, Self, (j,g., Pasquantino 11, United States, 544 U.s. 349 (200S) (holding that the CalJrtdiangovernrnent, which Was not" participant in the defendant 's scheme to defsaud Canada of tax revenue, was a victim onder rhe1VIVRA); United Slates v, Bengis, 6311'.3d 33 (2dCir.2011) (holding that the South African government, which did not participate In the illegal export and tradeufsbellfish from South Africa, was avictim under the MVRA),pet/liollf()r cert. flIed, 79 U,S.L.W. 3594 (U.S. Apr. 4,2011 ) (No. 10-1208), 'rhus, althOllghlCE cites a battery of cases which hold that various types of'govenunental instiunicns can be victims under the restijutlon.stanrtes, none or these entitieswas a: ee-participant ill thedefendant 's crhne..and thustheyareinapplieable to the instant casco See, e;g, United Slates v vVarlingt<Hl, 287 F. App'x 257 {4thCiL 20(8);.Unfled Slates )1 .. Phillips, 477F 3d .21 5 (5 th .Cir, 2007); United States Ii, /1rock-Dmjis, 504 F.3 d 99 J (9th CiL 20(7); United Stales p. Wushing{ol1, 434 V.3d 1265 (.11 th Cit. 20(6); United States I', Paquette, 20t F . .3d 40 (Lst Cir. 10M); Uniled{)'tdtes v. Bugart, 490 F. Supp. 2d 885 (S.D.Ohlo 20(7).

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foreign law .. When facing such issues, it is appropriate to apply the complication exception, See e.g., id. at 71 (affirming the district court's refusal to award restitution where determining the amount of restitutionwould have required prolonged and complicated proceedings to resolve disputed issues off.';lult and causation); United States v.FOlmICliJI, 768 F.2d 790, 802.(7111 CiL

! 985) (declining to order restitution where amount was in dispute and determination of amcuut would have required unduly burdensome and complicated calculation).

A, RestitutiQIl Would Require: H,ejecting the Parties' PI(m Agrccnlcnts

Granting ICE restitutionwould result in undue complication and. prolongation of the sentencing process because it would force the court to rt~ect thePlea Agreements between Defendants. and the DOl, which followed 1'1 five-year lnvestigation and a lengthy negotiatiou process. The Plea Agreements nOW before the Court have been submitted "pursuant 10 Rule 11(c){1 )(C) of the Federal Rules of Criminal Pr6cedure:' See Plea Agreements between.the

. United States and Mentel Ccntroarnerica, S.A.,AtcatcH~uccnt France, S .. A., and Alcatel-Lucent Trade International. A. G. Onder Rule 11(c )(l)(C), the parties may "agree that a specific sentence ... is the appropriate disp6shirin of the CHoSe;." and that "sucl: a recommendation or request binds the court once the court accepts the pleaagrecment." See Fed, R. Crim, P.

11 (c)(1 )(C), Thus, ifthe Court accepts the proffered Plea Agreemcats.Itwillbe bound by the "specific sentence' contemplated in those Agreements, Id.; see also Vnlted State» v. 7)11(111,80 F,3dL535, 1539 (1 l their. 1996) (,"One Important distinctionbetween-B" pleas and 'A' or 'C' pleas is that only 'J'r pleas may be modiUcd."),ll1oti{fied, 87 F .Sd 1212(11tlrCk 19(6).

Moreover, <Ojflcstitution is deemed an aspect of the defendant'sscateace." Fed.R, P. i I

advisQry con:imitlee's note (1 985) (citing S. Rep. No. 97S32, at JO~:)3 (!982)., reprinted in 1982 U.S.C.C.A.N. 2515, 2536~39). Asa result, a court could not accept a RJJle tl(c)(l}(C) plea and then order, restitution uot.authorized by the i'l.grc<llUcnt. See UnitedStates v. 131' Products Nm·th Amertca. Inc .. 6J 0 F. StiPP. Zd 655. 724nA9 (S.D. Tex. 2009) (accepting a Rule 11{c)O)(C') plea agreement that did not provide for restitution and noting lhat,although restinnten is available fhr the crimesatissue, "the terms oEthe pleaagreement, which this court cannot alter, but only accept or reject, do notprovide for .. .restitntion"). Thus, if restitution is not specified

.., ... / ..

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as part of the sentence in '1 Rule J I (c)(l)(C) pleaagreement, it cannot be Impcsed.'

For example, in United States v, Simon, the court held that it could not award restitution that was not contemplated as pari ora Rule ll(c)(l )(C)plea agreement because (0 do so would violate the defendant's due process rights, UnttedStates v. Simon, No. CR-08-0907, 2009 WI, 2424673, at *3-4, *7 (N.D. Cal. 2(09). 'The plea agreement in that case specified a term of supervised release and a Iine not exceeding $15,000. Idat '" 1; In response to a restitution request filedby a purported victim, the court analyzed whether it could order restitution. After determining that. despite a reference to "restitution" in a boilerplate provision, the plea agreement did notcontemplate rcstitution,lheconrt concluded thatordering restitution would

violate. the notice and due: process requirements of Rule 11.4 See id. at (citing UNited Slates

11. Pi/hilney, 838 F.2d 404 (9th Cir, 1988). The court explainedthatRule 11 requires a court to advise a defendant or the maximumpossible penalty for the crime, including the court's authority to order restitution, before accepting a guilty plea. Id. Aecordingly, the court accepted the plea agreement, sentencing the defendant to the agreed-upon term of supervised release and $15,a(}O tine. ltl at'" L

Here, the agreed-upon sentences proffered to the Court do not include restitution, The agreed-upon sentence ineachofthePlea Agreements providesthat each of the Defendants will pay a $500,OOOnllC (recognizing that the remainderoffhe fine us calculated under the Sentencing Guidelines, $90.5 million, wOilldbe paid by the: parent companyunder its DPA) and a $4()O special assessment; there is no provisIon whatsoever for restitution. See Plea Agreements between the United States and Alcatel Centroamerica, S.A,~ Alsatel-LucentFrance, S.I'''L, and Alcatel-Lueent Trade International, A.O., ,,15. The.singlereference torestimrionin the Agreements f1111s in ubuilcrplatepreliminaryparagniph on the timing and-manner of'payment;

:; ICE concedes this point, having stated that "[Wlehav0 a.form cf'pleahcre.thaf'sanuper

down plea on itsown terms. If'[the Court] ac(;cplfsltl1al plea 011 its QWI1 terms, .. there will be no restitution to any victim." TL 13:21-25.

The court noted that it could have ordered restitution up to the maximum amount of the fine ($15,OOO) agreed by the parties in the plea agreement, as long as amount of the tine and restitutiondid not exceed the agreed-upon maximumpenalty of$15,000. See Simon, 2009 we 2424673, at "'4,

• II •

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which states that "If/he Defendant agrees that any fine or restitution imposed by the Court will be due and payable within ten (10) business days of sentencing, and the Defendantwill not attempt to avoid or delay payments," See Plea Agreements between the United States and Alcatel Cemroamerica, 8.A., Alcatel-Lucent France, S.A, and Alcatel-Lucent Trade International, A .. O., ~ 8. And a single reference to restitution found in boilerplate language is Insnfficienr to conclude that the parties contemplated restitution. See Simon, 2009WL 242467J,at *4.

Disputed Rule 11(c)O)(C) agreements have been found topermit restitution o Illy Where the language of the agreement "plainly evincels]" a11 intent that restitution be included. See United States v. A nderson, 545 F3d 1072, 1079 (D.C. CiT. 2(09), cat, denied, Anderson 1/, United States, 129 S. Ct. 244S{2(09). ,Here, not only is restitution not part of the agreed-upon sentence, but.each oCthe PleaAgreements containsa merger clause stating that "((Illis document states the full extent of the agreement between the parties, Thereare no other promisesor agreements, express or implied." Plea Agreements between the United States andAlcatcl Cemroamerice, SA., Alcarcl-Lucent France, SA., and Alcatel-Lueent Trade Inlernalit.mal,A.G., ,r 22. Therefore, restitution cannot he interpreted to be a part ofthe sentence agreed-upon by the DO] and the Defendants. See United Slates v. Garcia, 698 F.ld 31,36 (Ist Cir, 1983) (rejecting restimrionwherc plea agreement was silent on restitution and contained amerger clause).

Because the Plea Agreements here are sUbnlitted Rule 11 (c)O )(C), and because the Agreements do not incl ude restitution, the Court cannot both accept the Agreements and order restimtion,"

-~------ -~-- -

J ICE relies heavily-on threeFGPA cases 10 support its asserill,}tlthat the Court should

order restitution ill this case. See Br, at 10 (citing UnifedStatr:s v. Diaz;,No, 09~cl'~2{J346 (S,/). Fla, 2010); Uniled States Y. F G. lyta.wut Eng'g. Em;', and f)y;mclsG.Masrm, Cr. No, B·90 .. 29 (1J. Conn. 1990); and United States \I, Kenny Int'temp., Cr. No. 79~372 (DJ).C. 1(79»). But in eachof.thesecases, the parties contemplated restitution ,IS pattofthe plea agreement, See United.States v. Diaz, No. 09-cr~20346 (S.D. r'J<.I;2(10); UnttedStaie« \I, F.G, lvla:ron Eng'g, InC'. andFrancis a Mason; Cr. No. B~~iO~29 (D. Conn. 1990};LltJitedStales v. Kenny ini 'l Corp" Cr. No. 79~J72(J).J).C. 1(79). Moreover, because the arnounr ofrcstiruticn had already been set out expressly in the plea agreements, the respectivecourts did not have to engage in any determination ofthe identity of victims or thetUllOun1ofrostituH(llJ owed, See Diaz; NQ. 09~cr-· 20346; Mason. Cr. No. B-90-29; Kenny, Cr. No, 79··372. In contrast, here, the Gcvcmmem.and the Defendants have not contemplated restitution as part (lEthei!' Plea Agreements. And as discussed itt/rain section Ill.B, a.slmple calculationof'thc.arrrount ofresthntion-isno; possible

- !I •

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B, GtHoting ICE's Petition. Would Require the Court to Resolve Complex Issues Better Reserved 1n Civil Stilts

Courts routinelyemploy the "complication exception" 10 the restitution statutes where a determination of restitution would require resolution of complexissues better reserved to civil lawsuits. Here, ICE claimsan astounding $40() million in restitution for "[contractual] cbligaticns. ., never satisfied, services ... never rendered, and hardwarethat was Inferior to what was promisedor never delivered," Be. at.6, 18. ICE clllims it received "an unfinished and largely inoperable telecommunicatlaas network," "inferior equipment," and "business interruptions and related losses," Id. at 6-7, In fact, ICE seeks restitution for all damages that were "0 direct and proximate result 011' defendant' s criminelconduct," Id. at 6.

111is is precisely the sort of the claim for restitution that prompted Congress-to include the "complication exceptions" In the VWJ' A and MVRA. "Nothing in the legislative history [of the VWP A1 evidences M expectation that a scntencingjudgewould adjudicate, in the course of the court's sentcnclngprcceeding, all civil claims against. a criminal defendant arising from conduct related to the offense." Kones, T7 F3d at 69. In this case, issues such as profits, costs, value of'equipmentprovided, value of competing bids,and comparisons to other available equlpmentwould all need to be resolvedas.part ohdjudicatinglCE's claim. This would require extensive discovery, expert testimcny, and a pf()lolIgedheating.Givcnthe international scope of the aHegedmigcnnc!uct and the Costa Rican, French and Swiss nationalities.of the Defendants, foreign discovery and expertisewould alsobe required, Congress lws made clear "that the scutcncingphase[s] of criminal trials [shouldlMthecol11e fora fbI' thedetcrminati.onoffacts and

issues better suitedto civil proceedings," ·8. No. 104~ 179., 'It 1 S (1995), reprinted in 1996

U.s.CCA.N, 924) 931. Complexissues of dau1ages and .restttution arcbetter.lefl to civil proceedings than crimlnal cases, See United States v, Ferguson; 584F. Stipp, 2d 447, 457~58 (D .. CorUL ;ZOOS),

Indeed, ICE's recent attempt toobtain damages from Alcatcl err as part of the justconcluded criminal proceedings inCosta Rica failed Ibr this very reason. After the fCE-Alcala.] bribery scheme became public, the Costa Rican Prosecutor's Of lice indicted several individuals

~.'w,,,,,~~_n , , ~ .. ~ ""'''' '''_.''''~''''' m " "'~''''~., '''w ..,.''''''''~,''~ "";.,.:.,...,_ •. "' __ ~~ __ . __ H '~ •••• __ ••• _.,,_


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on charges of aggravated corruption, unlawful enrichment, simulation, fraud and other crimes. In connection with this criminal case, ICE brought a civil claim against Alcatel err seeking "moral damages" to compensate ICE for harm to its reputation resulting from these events and "material damages" to compensate ICE forthe alleged overpricing it was forced to pay under its: contract with Alcatel. The trial on the criminal case, including all related Civil claims, began in April 201 Q. Following a year-long trial, the Costa Rican tribunal rendered its verdict on all claims on t\pril27, 20 J L However, the tribunal rejected the damages claim brought by KE. See T1'i bunal Penal del Segundo Circuito Judicial, San Jose, Costa Rica {Crimina! Court of the Public Treasury ofthe Second Judicial Circuit in San Jose, Costa Rica] Apr, 27, 2011. No, 04- 683::H547~PE, 6 (Ex. 2), The tribuna] concluded that ICE had failed to sufficiently plead its purported damages and that ICE would have lore-melts claim asa.civil 'suitagaiast Alcatel CIT.

This Court shoukl roach the same conclusion. Ii) enacting the VWPA, Congress expected that any "entitlement to restitution could be readily determined by the sentencing judge based upon the evidence he had heard during the trial of the criminal case or.learned in the course of determining whether to accept a plea and whatanappropriate sentence would be .... , The kind of case that Congress had in mind was one in which liability is dear from the information provided by the government and the defendant and all the.senrencing court has to do is calculate damages." Kones, 77F.3d tiL 69 (citing S.Rep, 97<)32, reprintedilt U .S.C.CA.N. 2515, 2536- 37., which the Kones court notesdiscasses "a case where the.victim of'a.purse snatching suffered a broken hip"). Here, however, ICE is requesting the.Court hold a mini. .. trlal to resolve complex issues of purported damages relate)d to alleged!y substandard equipment, services never delivered, and business intemliJtiQns and related losses. These types of dan luges claims are betterleft to a civil lawsuit.

C. ICE Has Little Need for Restitution Because HHHsQtber LegalRemedies

ICE is currently pursuing several civil actiens against Alcatelin Costa Rica for the same: alleged injuries for which ICE now seeksrestitntioJ1. Inparticular, lCEh,lS multiple suits pending in Costa Rica that involve overpayment and provision ofsubstandard equipment and services as a result ofcorrupt payments. In one snit, ICE sought compensarioo.of'S'rl.Smillio»

• 11. -

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for harm to ICE's reputation and for damages resulting from alleged overpricing (this is the justconcluded case with respect to which the Costa Rican tribunal rejected leE's claim as part of the criminal proceedings and suggested ICE bringa civil lawsuit for its purported damages), Inn separate action, ICE commenced an administrarlve proceeding to terminate its contract with Alcatel CIT in connection with which TCE claimed compensation 01'$71:>.1 million for damages and lost income. A $ j 5.1 million performance bond on the contract has been ordered held in escrow by the Supreme Court of Costa Rica pending final resolution of the case,

Moreover, 011 April 30, lOW! shortly after the Defendants publicly disclosed that they badentered into agreements in principle with the DO] andSEC1 ICE filed acomplaintin Florida's Elev'Cl1th Judicial Circuit for Miami-Dade County. The complaint named as defendants the parent company, Alcarel-Lueent, S,A. ("AI,U"), and the Defendants in this case..und alleged that these entities had operated aRlen enterprise that caused injury to ICE. The defendants moved to dismisson/oriim non conveniens grounds, arguing that Costa Rica was a more convenient forum for adjudicating this-claim, Thecourt agreed, and dismissed the case (although ICE has appealed). In so bolding, the court held that fCE could re-file its Florida claims in Costa Rica, Although Costa Rica dOCSI1ot have a R1 CO statute, Costa Rica does rceognize claims similar to those made by ICE in the Florida litigation, and allows claims for mouey damages arising from bribery, i.lliclt enrichment, arid other crimes and torts. Such damages are precisely what ICE is alleging it should he compensated for in both the Florida litigation endthe criminal settlement in front of this Court. Indeed, as a condition of dismissal on/ormn non conveniens grounds, the defeudantswere required 1.0 make certain stipulations that would facilItate ICE's ability tnre-flleits claims in CostaRica. ForeXEtmple, the defendants stipulated that Ihey wouldaccept service ofpmcessofacOlnplaint filed in Costa-Rica and that such acomplaintw()uld be deemed to be filedonthe same deteaa the Florida complaint for sto:tUle Of lim itat ions purposes. Furthermore, the defendants stlpulutedthal certain materials

frbrn the FLorida action would also be available to reB in a re-filed Costa RicitJ:1 action.

'rile availability of'theselegal remedies in CostaRlea further shifts the balance in favor of the cornplication exception because it reduces ICE's need for restitution. This is particularly true given thesigni ficant advantages to resolving ICE's claims in Costa Rica, rather than here, <1£

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reflected in the Florida court's dismissal ofICE'sRICO claim on grounds o(fbrilltl non conveniens. The vast majority of witnesses arc in Costa Rica, including current and former ICE employees, Alcatel employees, consultants, Costa Rloan.officials, and hank officers, Order at 3, Ellnstitulo Costarricense de Electricidad II. Alcatel-Lllcerif,S.A., No. 10-25859 (Fla. CiL CL Jun. 18,20) 1) (Ex. 3). The availability of legal recourseinCosta.Rica dramatically undercuts ICE's need for restitution in an American criminal case relative to the burdens that litIgating a claim of restitution wCH1Jd impose. See 18 lU);C. § 3663(a)(I )(l3)(ii).6

IV. The Parties' Resn!uHoll Is It F:-lir One lInd Should He Accepted by the Court

ICE argues that the Pica Agreements unci the DP,'\ should be rejected because they tbil to satisfy "fundamental requirements-of the law," and arc therefore l10t "in the best interests of jostle;;" and do not "serve the public's interest" Hr. at 14.7 fCE's counsel's allegations reflect,

(i In addition, ALU has already paid $45AtnilIion in disgorgement'and prejudgment

interest to thcS13C. S'eeSIZCv. Alcatel Lueent. SA. ,No. 1:1O-CV-24620, Final Judgmcnt(S.D. Fla. Dec. 30, 2(10). '11m SEC's regulations provide-that lhe~mC sballdistributcdisgorged funds to those aggrieved by a defendantunless it would be unreasonable so, See 17 C.F.R

§ 20J.l JOt) et seq.; see also SEC v. Lorin, 869F. Sllpp.1117,1129(S.JlN.Y. 1994). In the event that the SEC finds that distribution is not justified, itmay direct the-funds to theUnned States Treasuryj=Trcesury"), See 17 C.F.R § 20 1 .. 1 l02(h); SEC v. lJhagat, No.C-() 1-21 OJJ, 2008WL 4890890 (N.D. Col Nov.l2.20(8) (grantingthe SI~C's motion to distribute disgorged

funds to the Treasury) .. Here .. the SBC made a motion a tbecourt tj;i approve the transfer of

the funds to the Treasury.which the court granted .. See .. .. . lcatel Lucetu, 5LA~ , No, 1: 1 0-

CV"24620, Plainti ft"' s NQtjceoJ]7iling Consent of Defendant Alcatel-Lircent, S .. A. and Motion for Entry of Final Judgm.ent § V (S.D. Fin. DC\:. 30, 2010); hl.Pinalhll;lgrnent § V. An entity that isnot a party tp thecflse,.hutnonethcless may have an interesiln the Otltcoxne;mayoO.iect to tlleSEC'spl'opnseddispositioH oftbe disgorged funds. See Q{ficlaICmnm. of Unseclired CreditOJ'so/tt'(;wldCom. Inc. v. SEC. 467 F.3d 77 (2dCir. 2n(6) , While the SEC may either order distribution of the disgorgcdfi.:rnds or directthe funds 11,.) the-Treasury, theceart ttltimatcly decideswhat equitable remedy is appropriate. ICE failed toobjeet to thepreposedFinal Judgment and failed to appeal the entry ofthe Final Judgment.

ICE claims that a court has thediscretit)J1 to reject a pleaif'tt isnot in the interests of justiceaccotding to Ooverm}1ento/ll1eVirginisiands v.WalkCl!', 2611".3d370 (3dCir.2001). len's reliance on. Walker > however, is mi spl aced. . I n that case the court found th<'rt the! rial court had "exceeded allconceivable Iimitationsofpropricl.i' by interfering in plea !lcgo1iatinns and essentially punishing the defendaniIb; exercising hisconstitutionalrights. Id. at376, In this case there is noevidence, or even an.allegation, of suchjudicial.misconduct that would render the Plea Agreements contrary to the interests or justice.

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at best, a misunderstanding of the record, and at worst, a gross distortion of the record, The proposed settlement is in accordance with the law, and is consistent with the DOYs Principles of Federal Prosecution of Business Orgal1izationsR and theU.S. Sentencing Guidelines ("Guidelines"). 'rho proposed resolution was reached after eonsidered and extended negotiationea full analysis of the facts and circumstances, and 11 comprehensive review of the aggravating and nririgaring factors. "In the case of a plea agreement that includes a specific sentence (Rule 1 j (c)( 1 )(C)), the court. may accept the agreement if the court is satisfied either that: (l) the agreed sentence is within the applicable guideline runge; Of (2)(A) the agreed sentence departs from the applicable guideline range fhr justifiable reasons; and (B) those reasons are specifically set Ionh lnwriting in the statement of reasons or judgment and commitment order." {J,S. SENTBNCINGGUIDELINES MANUAL§ 6HL2(e) (20 to).

In support of its argument, ICE lists several perceived deficjencies, the first of which is that "a single count of conspiracyis Insufficient to reflect the actual offense. Br, at 15. But Alcatel's proposed resolution can hardlY be summarized in such an incomplete manner. The agreed-upon resolution includes:

" A total criminal fine of $92 million-cone of the largest fines ever for a violation of'the FCPA-apPQrt.iormd as follows: $90.5 million III be p.aid by the parent company ALU, and $500,000 each to be paid by Alcatel Cl'I', Alcate] Standard, and ACR.

A three-year deferred prosecution agreement, under whicbAl.U is chargedwlth violations of the books arld records and intemal.controls provisions Qfthe FCPA. Guilty pleas byertch of'the uft):rementionedsubsidiariesto conspiracyto violate the Fel' A' stultHJdhery, books and recordaand internal controls provisions.

A continuing obligation to provide full, complete, and.truthful cooperation to [he DOJ and SEC and other domestic and foreignlaw enforcement agencies;

The first-ever lmpcsition ora corporate compliancc.monuer over a F rench compan y. The mOD itor ' stem} will bethree Years, during whlchtlre monitor will

U.S. DcI' '1 of Justice, United States Attorncys'ManuaL§§ 9-28, 100 to 9·28.iJ 00 (2008).

·14 "

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conduct a review of ALU's FCPA policies, procedures; and compliance, and will prepare periodic reports on his reviews to be furnished to the French Ministry of Justice and, ultimately, 10111e DOJ and SEC

The implementation of numerous other remedial measures-some of\'vbich have been adopted at ALUls own initiarive."

Andfinally, a related.resolutlon with the SEC, underwhleh the company is enjoined from any further violations of the FCPA and has paid disgorgement of illicit profits and prejudgment interest tottlllng$45;4 million,

Based on the, foregoing,. when considered as a whole, the propmiedsc:ttlementis clearly in the interest of'justlce,

ICE also claims that ibePleaAgreements arc "based on flawed rnelhodology for determiningthe appropriate sentencing guidcHl1cs."Br, at IS. However, in reaching the overall criminal penalty reflected in the l)PA, the parties adhered strictly to the 201 0 edition or1lle Guidelines, Specifically, ICE claims that "the DO.! has chosen to use the Alcatel Defendants' pecuniary gain as the metric for calculating the base offense level, despite the explicit instnrction lnU.S.S.O.§2B1.lthat the base offense level shouldbe calculated using thevictim's loss." Be at 16. However, the comments to the Guidelines state-rhai.Iffoss-cannct be determined, the gain that resulted from the offense shall be used as an.alternative rneasuee ef loss, U,S,SENTHNCING GUiDEL.INES MANUAL§ 2.131 .. 1 cmt. nJ(I3) (2010). Here, the loss ofhoflcstservkcs, oreven the damagespurported]y suffered by ICE (even assuming arguendo that ICE is a-victim), cannot be: reH(HI~' determined, and undersuchcircumstasces, calculating theotfense level based on the gain that resulted from the offense is appropriate. See United Slates v .. McAIi!tan, 600F.3d 434,458- 6n (5th CiT. 2010)(upholdingthc trialcouri's.dccislon appJyingU.S.S.O. §2BLi to calculate

9 Mostnotably, ALUultlnwteJy determined that the risk of corruption inherent in using sales agents and consultants was too great. On its owninitlativeand at a substarnialfinancial cost, ALU detenninedes a matter of company policy to no longer LlSC (hitd party sales agents or consultarns in conductingitsworldwide business, III November .zOOS, rheeompany announced its extraordinary decision tophaseout the useof salesagents and consultants by the end of 20lO. Since the announcement, ALU has fulfilled its pledge to endall such third party relationships. DO] hasacknowledged that this commitment is an unprecedented remedial action and abold compliance statement from ALU's most senior executives,

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defendants' offense level based on their gain from the offense in a wire and mail fraud case, because the amount of loss: the defendants caused could not reasonably be determined). cerro denied, 13l S. Ct. 504 (2010),

ICE claims that ALU's proposed settlement agreements should be rejected because they do not punish any t'Offlcers Or Directors" of the Defendants. 131'. at 17. But whether and to what extent any individualsmay be criminally prosecuted docs not impact the appropriateness ofany resolution with the companies, Additionally, after the allegations in Costa Rica were publicized, Alcatel (011 behalf'of itseltand the Defendants) began to take disciplinary action against the employees responsible for thecondnct, up to and includingterminarioa of their employment CHITontl)', virtually an of the individual;') who were substantially involved in prior misconduct either are no longer employed by the companies Or have been disciplined. The diseiplinary actions taken by the companies resulted in significant managementcbanges in a number of countries worldwide.

ICE also claims that the proposed resolution should be rejected because it seeks to avoid "mandatory and routine pre-trial-services." Hr. at 17-19. In fact, the Court has-ordered n presentence investigation and report. In any event, even if the Coun had not, Federal Rule of Criminal Procedure 32(c)(1 )(A)(H) permits the Court to impose a sentence withoutthe preparatienof a presentence report if the Court finds "that the information in the record enables it to meaningfully exercise-its sentencing authority under 18 V.S.c. § 3553, and the court explains its fmding on the record." See, e.g. ,United Slates v, Latner, 702 F.2d 947;. 949~.5() (l Ith Cir. 1983) (IimJing that the trial court did not abuse its discretionin imposing a.sentence withou; the benefit of a presentence report, where there was sufficient record infbrmsticn to enable the court to make a fair sentencing determinaticn). This includes cases where thedefendant enters a plea pursuant to FedcJr'l'tl Rule ofCriminal Procedurell(c}(l )(C), See, e.g:, United Statesv. Brow17,557 FJd 291, ::W()~Ol (6th CIL 20(9) (affirming a sentencefollowiug an 1 i(c) (1)(C) pica without a presentence report, finding that the plea agreement, along with discussions that the district court judge bad with counsel, constituted "sufficient information , ., to 'exercise its sentencing authority meanirrgfully'"), cert. denied, 129 S. CL 2884 (2009), Consistent with

§ 6A 1.1 (a)(2) of'the Guidelines, the information contained in the record of this mise-including

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the.Information, the Plea Agreements, and the Statement of Facts-s-is sufficientto enable the Court to exercise its sentencingeulhority meaningfully under IS U.S.C§ 3553 without a presentence investigation or report. This would allow.the COUI1 10 consolidate the entry ofthe pleas and sentencing into one proceeding, and toconduct theplea and sentencing hearingsofall of the Defendants in one proceeding, as the parties request. See, e.g:, Plea Agreement between the Unhed SlaLes and Alcatel-LueentPrance, 8.A.,,! 17.

Finally, ICE claim." that ALU "continue(s) to violate" the .oPA. Br. at 19. In support of this proposition, ICE relies on statements made by Aleatel CIT's counselinthe context of crimina] proceedings in Costa Rica. Specifically, ICE claims that "AI~jandro Batalla, an attorney representing Alcatel-Lucentemlties, appeared in COUt1. in Costa Rica and flatly denied any crimina! responsibility by Alcaiel-Lucent companies, claiming instead that an responsibility for the bribery and corruption that occurred in Costa Rica was the responsibility of Christian Sapsizian and Edgar Valverde." Pet. at 15. In pnim.of fact, however, during his closing arguments, Batalla made clear that AIJJ acknowledged its liability, and accordingly, had settled its civil case with the Costa Rican Of lice ofthe AttorneyGeneral on behalf ofthe Costa Rican government ICE's Exhibit X at 2 (Closing Remarks of Alejandro Batalla) (Feb. 17 , 2(11), Restitution Civil Suit Against A lcotel CfT S.A., FileNo. ~j4-006835"'647 -PE (109-04) (Nov. 25, 20(4). Furthermore, Hi')! statement made-by Batalla has to be understood in the context of Costa Rican law,which does not recognize corporate criminal liability, The CostaRican system follews the Roman law rule of«s()cielaS deliflquere rum potest" (corporations cannot commit crimes). See Costa Rica C. PEN. §§ 16, 17 (Ex. 4). Moreover, under Costa Rican law, interms of civil HablUty, corporations ate jointly and severally liable for the criminal acts of their employees. Id. § 106 (Ex. 4), ThcJ'doTe, unystatcmentfrom ALl] or its rcp!1'!scntatives blaming Sapsizian or Valverde purpose either to disavow criminal Or c1vil responsibility for their actions.

In any event, the DPA states that: "[t]he decision whether any public statement by any such person contradicting a fact contained in the Statement of Facts will be imputed to .AlcatelLucent for the purpose 0 r determining whether they have breached this Agreement shal 1 be at the sole discretionofthe Department. Ifthe Department determines tha.I a [breach occurred], the

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Department shall so notify Alcatel-Luccnt, and Alcatel-Lucent may avoid ,1 breach ofthis Agreement by publicly repudiating such statcmenus) within five (5) business days after notlflcaticn," UnitedStates v. Alc({fel-Luc(fJH. SA., No. W-CR-20907, Deferred Prosecution Agreement ~ 21 (S.D.F'lu. Feb. 22, 201 I). The Department has not determined that the DPA has been breached. In any event, following the statements made by Batalla In the litigation, the company issued a statement once again accepting responsibility lor its actions ill Costa Rica, thereby curingany theoretical breach (}f the agreement that may have occurred. Hl

V. Conclasion

AWQrciing restitution to tcs in this case wouldbe contrary TO the interests (lfjustiee, given its role as a participant in the misconduct. ICE's request also places an excessive burden on this Court, by essentially reqtliringa trial on several factual and legal issues that would he best adjudicated in a civil trial in CostaRica; Because rCE has multiplcpotcntialrcmedics outside of these criminal settlement proceedings, ICE's need for restitution is outweighed by the burden it would place on the Court.

'\VHERJ3FOR.t::, forallof the foregoing reasons, the Defendants respectfully urge the Court to dCll)' ICEis petition lor relief: and overrule its objections to the PIca Agreements and the DPA,

lOIn a statement issued at the conclusion ofthe Costa Ric<l111ltigatioD referenced by iCE its Petition, ALU said that "[tJhe companytskes responsibility for and regrets what happened and the impact on individuals; institutiol}Sflndthepc(lple oJ Costa Rica." Samuel Rubenfeld, fi't.mmw Costa Rican President Sentenced to Prison Oval' Alcatcl13rib(u:!,. \VALL ST.]. BLOC; (Apr. 28, lOU, t :58 AM), ht1p:flblogs.wsj.comlcorruption~currents!2011/04/28/fQrmer~cosla~ rican"pl'eside:nt~sentenced.,t(l-pdso1l-0VeHllcatel-bribery. This statement was just Ol1eQf many issued by ALU since the announcement of the settlements accepting full responsibility for these actions. See, e.g~, Alcatel-Lncent Press Release} Alct:llel-Lw:enl Welcomes the Settleme/'lls wilh U.S. Authorities Regarding Previously Reported Violations a/Foreign Carmpt Praotioes' Act (Dec. 27, 20 I 0) ("We take responsibility for and regret what bappened and have implemented policies and procedures to preventthese violatiens from happening again.") .

. I s-

Case 1:1 0-cr-20906-MGC Document 42 Entered on FLSD Docket 05/23/2011 Page 19 of 20

May 23; 2011 Respectfully submitted,

By:',}/JOl1lt. Selle __ _

JON A. SALE (FBN 246387) Sale & Weintraub, 1'.1\. Wacfll1via Financial Center 200 South Biscayne ElveL Suite 4300

M.iam.i, FL 33 1

TeI: (305) 374~I818

Fax: (305) 579-320 I

Email: 1t1g1~t1V,sal~~,tell1traub.c().m

MAR'JIN J. WEINSTEIN (admitted pro hac vice) Ro.BERI' J. MEYER (ndmittccipro hac vice) Willkic Farr & Gallagher LLP . J875KStrcet, NW

Washington, DC 2fJ006

Tel: (.2(2) 303-.1000

F<L'X:(202) 303·2000

Email: .!Uw~.i!)§tcin@\ mlcyq{iUwil.lkIg"t;:gn2

Attorneys for Defendants

Alcatel-Lucent France, S.A., Alcatel Lucent Trude hrternatienal A .. Q,and Ak:atcl. Ccntrcamerica S.A,

... 19 ...

Case 1:1 O-cr-20906-MGC Document 42 Entered on FLSD Docket 05/23/2011 Page 20 of 20

1 hereby certify that on May 23, 2011 a true and correct copy ofthe foregoing, including exhibits., \11/(1$ served via transmission ofNotices of Electronic Filing generated by eM/HeF on all counselor parties of record on the Service List below,

~~q!e __ ,_"""_,,,,,,,,, __ ",,

Jon.A, Sale


Attorneys for Plaintiff United Sraieaof'Arnerica

Burton Webb Wiand George L, Guerra Wiand Guerra King £1.L" 300n Bayport Drive, Suite 600

Tampa, PL 33607

Tel: (813) .347"'-5100 EmaH;h}via.nd((4wi~£

g1\9.!!tlJ.v.cqm Q.Q£I!rimap{(v,\'\'1£Lnd1a'0{.c()lJ1 li.Qn9.~wJalJdl<:!w.t.;Slrn .

I Damag(:".~v. ~aavcdr~----'-"'-

Saavedra, Pelosi, Goodwin & Flcl'mann,A"pjl. 3 12 S.E. i 7th Street, Second Fioor

Fort Lauterdale, Florida 33316

Tc!:(954) 767~6J33


Duross Andrew Gentin

United States Attorney's Off1ce 99 NH 4 Street

Miami, Plorida 33132

Tel~ (305) 961-9358

Email: Qharles.qJ:!nlli~(~llust19Jgov PSA.FLS:I:IQDKT(el{ f!.T},Qrew.l!,entin@H!;1doj.gQ'y

[Jan] Cassell

Professor of Ltf\.\" 1 Quhmcy College of Law III the University of Utah

332 S.·1400E.

Salt Lake City, UT841 J 2 Tel: (SOl)585-5202

Email: 1.cl1.$..;i.~!I~%U~~l1ah;edu

Attorneys for HI IllstitUt{) Costarricense de Electricidad