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UNITED

CASE

SOUTHERN NO.

STATES DISTRICT COURT DISTRICT OF FLORIDA 89-802-CR-KEHOE

UNITED

STATES

OF AMERICA,

Plaintiff,

vs.
JOAQUIN POUt ALFREDO and JOSE GUASCH,
G. DURAN

Defendants.
_______________________________ 1

.JQPGMENT

DEFENDANT DURAN' S MO'fION FOR OF ACOUI'ITAL AND ~RANDUM

OF

LAW

The

Defendant,

Alfredo
I

G.

Duran

("Duran")

moves

for

a

Rule 29, Fed. R. Crim. P' Duran is charged to commit an offense
the

judgment of acquittal.

in a one-count Indictment with conspiring against the
statute,

United States, in violation Title
18 U.S.C.

of

General

Conspiracy

§ 371.
with
J

Specifically, his

the Indictment

alleges s, Joaquin

that Duran, Pou and Jose Robert

together

two named co-defendant

Guasch

and

alleged
conspired

unindicted to violate

co-conspirator, Section 78dd-2

Gurin

("Gud n") ,

of Title 15, United

States

Code (hereinafter "the Actn).

LAW OFFICES

OF BIERMAN,

SHOHAT

& LOEWY,

PA SUITE 1730, COURTHOUSE

CENTER,

MIAMI,

FLORIDA

358· 7000

Du_ran respectfully before this Court no

submits

that

based

on

the find

evidence that the

reasonable

jury

could

purpose of any of the alleged intended payments was to assist a domestic
business

concern for or the

or with,

an

issuer

in

obtaining business to to,

or

retaining person.

or directing has

any

Moreover, evidence
or

government

failed

adduce

sufficient

to prove any

intended payments were for
the

not faci lit ating of expediting or

expediting

payments

purpose

securing routine governmental action (i.e. grease payments). Accordingly, Defendant Duran must be acquitted.

Introduction Essential Elements Of A Conspiracy To Commit Prohibited Foreign TIad~ Practices In order adduce offense
to surv i ve a Rule 29 motion
I

the
every

government element to
of

must the the

sufficient charged.

evidence It
of

on each therefore
crime of

and

is
the

critical
conspi

define

essential components

racy to cornmi t the

"Prohibited Foreign Trade Practices".lJ

II

and 78dd-l by substituting the catchline "Prohibited Foreign Trade Practices" for "Corrupt Practices." Pub.L. 418, lOOth Cong., §§ 5000(c) and 5000(a), £Qdi~ at,

In 1988, Congress extensively revised the Act. In one such revision, Congress c lar i f ied the scope of Sect ions 78dd-2

15 U.S.C.A. §§ 78dd-2(a) and 78dd-l(a) (West Supp. 1989).

2

An

individua proves, two or act of

1

is beyond

gui 1 ty

of

cons pi racy,
I "(

only l)

if

the

government between

a r easonab Ie doubt
(2)

an agreement purpose, and in

more

persons, by

an of

unlawful the

(3) an overt
furtherance

committed

one

co-conspirators

the conspiracy."

~~d

States v, WieschenbeLq,
v, 848

604 F.2d 326,
F.2d 263

331 (5th Cir. 1979); United States
Cir.), government under c~rt. must 18 U. s. deniSld,
439 U.S.

White, 569
(1978). In

(5th the

addition, wi th

prove that

the

defendant .. at

charged least the

conspi racy

c.

§ 371 possessed

degree of criminal intent necessary for
itself." United
1979).2J

the substantive offense
U.S. 671,686 (l975)i

United states

States

v.

Feola,

420

v. Wi~schen~erg,

604

F.2d

326,

331

(5th

Cir.

This criminal to violate
v,

Circuit intent

has
required

declared to

that

Feola's a conviction
clear".

holding

on

the

sustain

for conspiring
Uniteg ~.

a federal

statute

is "clarion

States denied,
requires at at least 331

Beil, U.S.

577 F.2d 1313, 1314-15 (5th Cir. 1978),
946 intent, (1979). then the If

440

the

underlying offense

offense requires 604 F.2d

specific

conspiracy

that

same

specific

intent.

Wieschenberq,

(Because the substantive offense of exporting without a license
articles r e qu i res designated speci f ic on
I

the

United

States
to

Munitions that

List

intent

conspi racy

commit

offense

2..1

Any decision of the former October 1, 1981, is binding Bonner v. City of Pritchard,
1981). 3

Fifth Circuit handed prior to wi thin the Eleventh Ci rcuit . 661 F.2d 1206, 1209 (11th Cir.

requ i res the government speci fica lly
property Davis,

to prove

the defendant
a

ag reed to and part i cu lar
States v, on proof have

intended
by

to export without
the Munitions (5th

license
United

rest r icted
583 F.2d

List.); Cir.
1978)

190,

192-93

(instruction require

conspiracy

to

violate

specific

intent

crime

must of that

of

that

same

specific

intent).~/
to the

Courts effect

Appeal

summarily conspirator
be

rejected

arguments

if anyone

had the requisite specific intent this intent CQuld to
the

imputed

other
Tavoular~,

alleged
515

conspirators.
F.2d 1070,

~,

~,
Cir.

united
1975)

States
("This is

v,

1074 (2d principle.") must prove

an erroneous statement of legal therefore, the

In this
Duran

case,

government

that

acted with

exactly the

same degree

of criminal

intent as

J/

~ ~ united Stails v. Adames, Ci r. 1989) (A substant i ve violation Act (AECA) regulations requires
It

1374, 1377 (11th Arms Export Cont rol the specific intent of "willfulness, therefore, conspiracy to violate AECA regulations requires proof of the specific intent of intentionally violating a known legal duty not to export firearms without requisite licenses.); united States v. Gregory, 73~ F.2d 692, 701-02 (11th Cir. 1984) (Because, in the particular circumstances, a substantive violation of 18 U.S.C.A. § 656, criminalizing the misapplication of bank funds would require specific intent to defraud the bank, consequently, conspiracy to violate § 656 required proof of the specific intent to defraud the bank.), ~. denieQ, 469 U.S. 1208 (1985). United £tates v. Lichenstein, 610 F.2d 1272, 1277 {5th Cir.) (The substantive offense violative of 18 U.S.C. § 1001, outlawing the willful submission of false statements to a government agency, requires the specific intent of willfulness, and thus, conspiracy to violate § 1001 requires proof of the specific intent to deceive or mislead.), Clu.t.. denied, 447 U. S. 907
878 F.2d

of

t

(1980) •

-4

the government would have to prove to secure Duran's conviction for
the

substantive
. Fo r e i qn

crime
Tr a d e

of

violating
N

Section

?Bdd-2's the "for

. "Pr oh i.b i ted

Pr ac t'ace s .-41

Accordingly, and willfully

government

must prove Duran
(1)

acted corruptly

purposes of" capacity issuer and in

influencing "in order

a foreign official to" assi st

in his official
0r

(2)

a domest i c concern for or with,

"obtaining, business that retain the

retaining

business

or

directing to prove obtain,

to, any person." purpose or of any

The government intended
to

has failed was to

payment any

direct

business

person.

~/

The Act provides in relevant part:
It shall be unlawful for any dome s t i c concern .. . to make use of. . .any means. . . of interstate commerce corruptly in furtherance of (a}... payment ... to~-

(I) any foreign official for pyrposes Q1 (A) (i) inf luencing any act or decision in his of such foreign official official capacity ... obtaining. [or]
(3)

in

order

to

. .business.

assist

such

. .;

domestic

concern

in

any person, while knowing that such money ... will be ... given ... to any foreign official ... fQI purposes Qf-(A) (i) influencing any act or decision of such foreign official in his official capacity ... in order to assist such issuer in obtaining. . .bus Lne ss , . .

15 U.S.C.A. §78dd-2{a)(1) and (3){West Supp. 1989). Moreover, an agent of a domestic concern, as Defendant Duran is charged in the Indictment, incurs criminal liability .Q.!lly if he "willfully" violates the statute. 15 U.S.C.A. § 78dd-2(g)(2)(B). 5

Alternatively,

the 90vernment

has failed to prove any intended other than to expedite or secure

payment was for any purpose

the performance of routine governmental action.

I. Failure Intended Of
payment

Proof

Obtain Or Retain

Business

Was

That

Any

A

Payment

Alleged

To

Duran must be acquitted of conspiring to commit the Foreign Trade Practice defined by paragraphs (1) and (3) of Subsection 78dd~2 (a) when no reasonable any conspiracy having or the an jury could illegal issuer in find that he entered of assisting or
I

objective obtaining

a

domestic business

concern for

retaining

or with,

or directing

bus iness to

any person.

Common to both of the conspi racy that the government or to, retaining must prove

t heor i es

is the requ i rement objective or of

the for or

illegal with,

obtaining business

business

directing
I

any person.

Accordingly,

absent

such evidence

Duran'must be acquitted.
The

statutory

requirement must concern be

that

any intended specific

payment, purpose

in of or

order

to be unlawful, a domestic business

for the

assisting retaining
person,"

or

an issuer

"in obtaining business

for or with

or directing

to any

was discussed

thoroughly

in Duran' s prey i ously filed To avoid redundancy, a copy

Motion to Dismiss the Indictment.

6

of that

Mot ion is attached as Exhibi t: "A" and inco rporated
herein. This Court

by

reference based upon

denied that for the

the motion indictment of
must

to

dismiss
a

its

observation and that

alleged motion taken

"business dismiss, true.

purpose"

purposes

a
be

to as

the allegations

of the

indictment

This principle does not apply now ana Duran submits that adduced in this case
comes nowhere

the proof

near to supporting

this allegation.
AS

pointed

out

in

Duran's

Not ion

to

Dismiss.

the

legislative history to the 1977 Act makes clear that the evil redressed . serVlces by ta
the Act was the

use for

of the

bribery sale of

by

U.S.

corporations

to

obtain

contracts

goods

or

f'or91gn

5/ coun t r i r1e5.-

Congress

determined

that

5/

proof under Section 201 is that the defendant had "a hope or expectation of either financial gain or other benefit to one's self or some aid or profit or benefit to another." United States v. Strand, 574 F.2d 993, 996 (9th CiI. 1978). The insertion of the additional requirement for the s.u~-ection 78dd-2{a) offense, namely, "obtaining" "retaining" or "directing bus iness" must mean that for a FCPA conviction Congress specific~lly intended to force the government to prove something much more than mere financial gain or benefit.
I

In this domestic

respect
bribery

statute,

the Act

must be distinguished from the 18 U.S.C. §201. An element of

7

the use of bribes over other system

to gain

a competitive basic

edge

in foreign

markets

exporters on

violated a level

tenets

of a capitalist and destabi lized

conducted

playing with

field,

this country's

trade

relations

foreign

states. /

Q

Specifically retaining legislative judicial, treatment ...

excluded

from

the

ambit

of

Hobtaining to

or the

or
history,

directing are the

business," "procurement action

according of

legislative, more favorable or other

regulatory, by a

or other

in seeking
and

foreign

government"

"lobbying

§/

S. Rep.

No.

114 defines

the evil addressed:

Corporate bribery is bad business. In our free market system it is basic that the ~ of products should take place on the bas i s of price, quality, and service. Corporate bribery is fundamentally destructive of this bas ic tenet. Corporate bribery of foreign officials takes place primarily to assist corpo rations in gaining bus iness. Thus, foreign corporate bribery affects the very stability of overseas business. Foreign corporate bribes also affect our domestic competitive climate when domestic firms engage in such practice as a substitute for healthy competition for foreign business.

rd.

at 4, 1977 (emphasis added).

U.S.

Code

Congo

& Admin.

News

at

4101

8

LAW OFFICES OF BIERMAN.

SHOHA T & LOEWY

P A. SUirE

1'30. COURTHGUSF

i:",r,rn::<>

... " ••.

~. -_._

..

n~rmal representations specifically payments price

to government oEficials.,,11 the meaning

Congress

intended to embrace in

of "business", official to as a ~

"demanded gaining
8/
i

on the part of a government gntry
intQ ~

fQx

market

or

obtain

copt{act."In

1988

Congress

extensively

revised

the Act.

Congress

clarified the ambit
78dd-l

of the Act's criminal provisions 78dd-2 and the catchline
Practices "Prohibited ....9./

by substituting for

Foreign Trade created an

Practices"

"Corrupt

Congress

1/

House Conf. Rep. No. 576 at 918-19, reprinted in, 1988 U.S. Code Congo & Admin. News at 1951-52. Congress rejected several House amendments to broaden the definition of obtaining or retaining business. .I9...,_ (1988) i House Conf. Rep. No. 831 at 12, reprinted .in 1977 U.S. Code Congo & Admin. News at 4124 (1977).
S.

EI
~/

Rep. No. 114 at 10-11.
15 U.S.C.A.

st,

Pub. L. 418,

lOOth Cong., §§ 5000(c) and 5000(a), codified §§ 78dd-2 and 78dd-l (West Supp. 1989) (emphasis added).

9

exception purpose 78dd-2(b). the statute, of

for

expediting routine

or

facilitating governmental

payments action. the
15

for

the

securing

U.S.C.A.

But so as not "routine

to

impinge

upon

narrow was

scope

of to

governmental

action"

defined

exclude

decisions: by a foreign of f i c i a1 whether, or on what terms, to award new business to or to continue business with a particular party, or any action taken by a foreign official i nvol ved in the deei s i on-rnakt nq process to encourage a decision to award new business or to continue business with a particular party.

rd.

§ 78dd-2(h)(4)(B). of the awarding are the

By

clear

tmplication, contracts of

payments the

in

respect

of procurement
type of

foreign
by the

government "Prohibited congressional

payments

targetted Another

Foreign intent

Trade is for

Practices." that Congress and

indication created expenditures

of an

specifically bona to fide

af fi rmat i ve defense of foreign

reasonable in

officials or or

relation

promotion, products performance of or
a

demonstration, services contract impl iei t defense Act is is the wi th

explanation . the execution

of
or
.IJL_

a foreign

government." the trade

§ 78dd-2 (c) (2) . of thi s

The

as sumption that the

behind type to of sell

exi stence practice or

aff irma ti ve by the to foreign

criminalized services

attempt

products

10

g-overnments or the furtherance
of cont racts
wi th

of the execution
by

and performance
use of bribery. Attorney

fo reign

governments
78dd-2(e)

the

Furthermore,

Subsection

instructed

the

General to determine the
guidelines conduct,

appropriateness

of issuing:

specified types of with common types of export §ales 2rrangemenis and business cQntr~, which for purposes of the Department of Just ice' s p reserrt enforcement po licy, the Attorney General determines describing associated would be in conformance with provisions of this section. ~ such (emphasis
the

preceding

added). language
arrangements" taken

Again, is that

the the

inevitable

implication

of

statutory
sales

Act

is

aimed

at
,lQ/

certain

"export The

and "bus i.nes s contracts" in the light

evidence,

most

favorable

to

the

government,

shows at best that payments were to be made to

.lQ.1

on the 1988 Amendments to the Act is references to the type of trade practices which Congress intended to criminalize, ~, 134 Congo Rec. 6.10571-01 (daily ed. August 21 1988)("to win a sale""foreign trade~"American exports""bribes to win sales""giving it to a close relative of the guy who makes the purchasing decision") (statement of Sen. Pro:xmire); iQ. ("What [the 1988 Amendments do] is that finally we set forth to American businesses that these are clearly the rules when you go to sell abroad,"). replete
with
~J

cone ress i cna I debate

11

Joaquin government of

Pou

and,

through for to
by

him,

to

unidentified of obtaining this

Dominican the is release not what retaining person." indirectly of an

off ici a Is aircraft

the

purpose

a single

its owner. the or phrase

Clearly,

Congress business The fact

intended

"obtaining business may to,

or any

for:: or with, that Gurin' s does this

directing

intended by

payment

have the

benef ited aircraft

business

f aci li tat ing

re lease

not establish
by

the type The

of direct

business

purpose would

contemplated not and could

the statute.

release

of the aircraft

not have

as its result

the obtaining

of business of

in a foreign business directing companies. As Duran which within the the
in

state by Gurin
a

and his companies,
by Gurin

the retaining

foreign business

state in a

and his companies state to Gurin

or the and his

of

foreign

warned

in his Motion is prosecuting of the statute

to

Dismiss, Duran under

the

conduct does he

for

government ambit This

simply which

not fall is being to deny that in the the

prosecuted. Duran's government Indictment. probative this

Court to

may have

been

legally the

obligated fact

Motion
had

Dismiss the the

based

upon

made that

necessary government to

"allegations" has
failed

Now

to

introduce on is

competent

evidence

support

those

allegations this Cour.t

essential and

statutory obUg

element, ated to to

however, te rmina te

leg a lly The

mora lly has this

this that

prosecution, the intended of

government in

failed case

establish for the

payments

were 12

specific

purpose

1 AW nFFIr:~"

(')0-

.... 1FRMAN

.c:.f../(,)HAT

A.

i

(,)FWY

PA

c:.IIITE'

1730

r:nIII'lTHr'lII<:F

"<:.,.,.",, .......

~, _ •....

obtaining, accordingly,

retaining

or

directing of acquittal
II.

business should

to

any person

and,

a judgment

be entered.

The Government Has Failed To prove That Any Intended payment Was Not A Facilitating Or Expediting Payment
Under inVOlved of the intend Act the or action The payment Had no crime is committed to when the be used for
of

individuals the
a

proposed securing
by

payment the

purpose
routine U.S.C.h.

expediting

performance official. the burden

governmental § 78dd-2(b). that the

a

foreign bears a

15
of or

government was not

disproving expediting or it

"facilitating the

payment. "ll/ expedi t ing would have

Congress exception" it in

intended to

"faci li tating

payment placed and

be an affi rmat i ve defense, 78dd-2(c) ("Affirmative

subsection

Defenses")

not

subsection

7815d-2(b)

("Exception")

.1.£/

ll/

~I

generally, United States v. ~rouche, 723 F. 2d 1541, 1543 (11th Cir.) (discussing the mode of analysis for determining who bears the burden of proving an except ion) .Q.!ll.t. denieQ., 467 U.S. 1245 (1984).

1

121 The

legislative history indicates that the House of Representa t i ves receded to the Senate and an except ion was created instead of a "defense". H.R. Conf. Rep. No. 576, looth Cong., 2nd Sess. 916, 921, reQ,rinted in, 1988 U.S. Code Congo &. Admin. News at 1954. Further evidence that the government bears the burden of proof can be gleaned from congressional debate on earlier similar bills that failed to become law. ~, .9..e..!1:~rally, United States v, RusselIo, 464 U.S. 16, 24 (1983) (interpreting statute by referring to an early unenacted version). Discussing unenacted Senate bill S.2105, Senator Byrd stated that exceptions were created to provide guidance to the U. S. executive and that the difference between an exception and a defense is that. in the case of the latter, the burden of proof rests with the defendant. 133 Congo Rec. S. 2105 (daily ed , Feb. 19, 1987) (debate on 5.2105, lOOth Cong., 1st Sess. (1987».
13

Moreover, because serve
York,

the

exception

cannot

be

an that

affirmative a defense

defense "does v. not New

it does not fit the definition to
432

negative
U.S. 197,

any

facts

of
(1977).

the:rime".
A payment

Patterson defined the

206-07

in terms facts
By

of

a legal

purpose

necessarily

serves

to negate
illegal

of a its

crime

defined

in terms the

of a payment's

purpose,

nature, which

therefore,

except ion creates disprove beyond

an addi tiona 1 element a reasonable doubt to

the government the crime. starting or the

must

establish The

point

for

determining payment" in
1977.

the

scope is

of the

the first

"facilitating version of

expediting enacted

exception Under fail foreign one whose the

Act,

1977

Act,

a

prosecution government employee
"essentially

under could was an

§ 78dd-2(1) not prove that

wOlild the
thgn

whenever

the

governmental duties were
&

employee

other

ministerial

or c i e r i ca l ;" history wa s a

15 U.S.C.

§ 78dd-2(a) clear
to

(d)(2)(1983). reach to
of

The
1977

legislative

makes

that

the

the

Ac t ' s prohibi tion

restricted foreign

payments in an his the

influence

an

act

or

decision the

of

official

official influence domestic to any

capacity, to affect in

or to induce a government obtaining, Congress

foreign

official

to use

act or decision retaining or

to assist

concern

directing the

business

person.ll1

characterized

noncriminal.

ill S. Rep. No. 114 at 10 & 12; 1977 U.S, News at 4108 & 4124. 14

Code

Congo

&

Admin.

,4'"

__

............

"...,_,_

.....>_.~

••

~.

"",

........

, ..........

,

...........

1\'

.1"'1

.....

,',

.....

,...

~""T""0""1

...........

,~

.... _

......

,.~-

.... ~ ••

---

,.,

••••

_.

--

-

so-called particular

"grease" matter

payments toward

as

payments act

"which or

merely or

move a which

an eventual

decision

. do not involve

any d i lscretlonary the 1977 Act, governmental of action concerning of his duties not

ae t· ion. ,,14/ f ac i Li t at i nq or

Thus, made to the a

under

"grease" order to to

payments speed secure up a

foreign

employee or in

in

performance

order any was

governmental decision-making The permissibility Amendments
In

involving business is

discretionary not
a

obtaining payments

crime. 19B8

grease

continued

in the

to the Act. the Act, a as amended in
1988,12/

fact,

clarifies for
U.S.C.A.

"grease" "facilitating

through or The

specific expediting

statutory payments." that "routine

exception
15

§ 78dd-2 (b) . action" means:

statute

states

governmental

only an commonly in - (i)

action which is ordinarily and performed by a foreign official obtaining permits, licenses, or

14/ House Cong. on Interstate & Foreign Commerce, Unlawful Corporate Payments Act of 1977, H. R. Rep. No. 640, 95th Cong .• 1st Sess. B (1977) hereinafter H.R. Rep. No. 640]. 15/ Foreign Corrupt Pract ices Act Amendments of 1988, Pub. L. No. lO0- 418 , tit. V see S . 5a 01- 5a a 3 , 10Z Stat. 14 15 (codified at 15 U.S.C. §§ 78m(b), 78dd-11 78ff, and 78dd-2). The original Omnibus Trade Bill, H.R. 3. was passed by both houses but was vetoed by president Reagan on May 24, 1988. Its follow-up bill, H.R. 4848, was identical to the original except that it omitted a plant closing r equ i rement and section restricti ng the export of Al askan oi 1. H. R. 4848 was passed by the House on Ju ly 13, 1988 and the Senate on August 3, 1988, and was signed by President Reagan on August 23, 1988.
I

15

·.
other official docwnents to qualify a person to do business in a foreign country; (ii) processing governmental papers, such as vi sas and work orders; (iii) providing police protection, mail pick-up and delivery or scheduling inspections associated with contract performance or inspections related to transit of goods a~ross country; (i v) providing phone s ervice , power and water supply, loading and unloading ca rgo, or protecting perishable products or commodities from deterioration; or (v) actions of a similar nature.
~ § 87dd-2(h)(4)(A).

Equally

important,

the

exception's

key

phrase,

"routine

governmental action,~ is statutorily defined so as to exclude:
any

decision .Qy .§. foreign official whether, or on what terms .to. awa,d .new business to or to continue business wi th a particular party, or any action taken bY ~ foreign official involved in thg decision-making proce&~ 1Q encourage g Qecis]~ iQ award new business to or continue business with a particular party.
I

~
that

§ 78dd-2(h)(4)(B).
the routine (h)(4)(A) involving
"

The House

Conference

Report in

stresses Section

governmenta 1 actions enumerated "would an not include those
by

78dd-2 approvals

governmental a goverrnent

exercise

of discretion

official .

House Conf., Rep. No. 576 at 921, 1988 U.S.
News at 1954.

Code Congo & Admin.

The

congressional or

intent

underpinning
payments"

the to

exception clarify

for

"faCilitating

expediting

was

the

circumstances

in which

a payment would not via late subsect ion

16

78dd-2 (a). demonstrate decision
by

Pursuant that the

to

this

test, in

t.he

government involved on what with

must either

first
I

activities official to a to

que s t I on
I

a

a foreign

"whether

or

terms,

to

award new business pa rty, " or "action

to or [of]

continue foreign encourage business

business offici
a

a particular in award party." portion the acts the new

a 1 involved to

decision-making business to or

process continue

decision a

wi th

particular this that and one

15 a.S.C.A.

§ 78dd-2(h)(4)(B). the government were must not

Having then those
a 1 fall

satisfied demonstrate ordinarily
ing

of of

the the

test, foreign by

official the foreign

commonly
of

performed four

offici of of

wi thin

the or

statutory an

categories action

perffiissible
a

transactions nature.

constituting

similar

§ 78dd-2(h)(4)(A). Here, consistent intended an the with payments The informant He was nor the any led other . of evidence a int roduced that facilitate had by the or been were that held the prosecut of the
by

ion the

is

only

finding was to

purpose expedite told no legal neither any that release payment

alleged of

release

aircraft.

Defendant that to

an holds the

undercover upon the

government aircraft. Republic right in

there believe

Dominican to or a

government

legal it

claim was

ai rcraft matter the

He understood expediting Any intended the

simply

straightforward on behalf of

of an aircraft was simply for

owner.

17

,~,

--~

.-

,.-.,~-

..

,

",

,.."

,

~""

--,

.-.,.-.

_ ..---

"

.~., _.

-

,_'

"'--

_ _-

the purpose purpose of

of hurrying the alleged

along

a

bureaucratic payment was

process. to expedite

The a

intended

routine governmental could conclude that

action. the

Consequently, agreed

no reasonable upon an

jury

Defendant

illegal

objective. The government that the release has failed to present any evidence to prove of the aircraft involved a decision by a

foreign official

in an official capacity on whether, or on what to Gur in or his company. The

terms, to awa rd new bus iness

facts simply show that the army of the Dominican Republic had no di scret ion in the matter of the release of the ai rcraft, and that some government pockets outside the Defendant, officials were simply trying to line their capaci ties. In the mind of

of their official

there were no legal or equ i table holds on the decision to be made by

aircraft, hence, there was no official any government

official on whether to turn over the aircraft or be released. would The Defendant have to balance

on what terms the aircraft would understood that no government

official

any competing factors in deciding to release the aircraft. Neither has the government Republic process to offer,ad sufficient government in the a evidence to

show that any Dominican in the decision-making took action

employee, area of

involved business to award

contracts,

encourage

decision

business to Gurin or his company.

There was no decision-making

18

.....

~I..-..

"....'

'"'

.-.

,-;,.,.....-...,_.~~.,

._

~-

••..

,

--

-_

_ .. __

.

-

.-

--

.. ---

"

..•.

_.

---

--.

---.

process

in

this or

case,

the matter

facts

merely the

demonstrate processing

a of

ministerial government

clerical

involving

papers

and the automatic

release of the aircraft.

As the Defendant understood it, the army had mere possession of someone e lse s aircraft
f

and they we re duty-bound

to turn it

over to its rightful owner or someone acting on his behalf.

19

CONCLUSION Duran evidence government, that Duran respectfully presented in submi ts the that: even most find an By
a

interpreting favorable to

the the fact or the Duran or

light

no reasonable acted with than the a or

jury could knew of one.

the necessary objective of

illegal no

purpose,

rather does the

legal

stretch

imagination acted for

evidence purpose any

support of

finding

that

specific to

obtaining, At most, payments

retaining the were

directing

business

person.

evidence for the action

supports a finding that the contemplated purpose of facilitating or expediting

routine government

on the part of government Since the alleged

employees of the Dominican thus had

Republic.
,

conspi racy

no il1ega 1 obj ect iv e

defendant Duran must be acquitted.
BIERM~N, SHOHAT & LOEWY Attorneys for Defendant Alfredo Duran 17th Floor Courthouse Center 175 N.W. 1st Avenue
Miami, Florida (305) 358-7000 33128

~.-~,

Donald I. Bierman Ira N. Loewy

20

~IFrCATE WE foregoing HEREBY CERTIFY that a

OF SERVICE

true

and correct

copy

of

the

was mailed

thiS~ay

of .~pril,

1990 to:

~

·Of

Counsel

13081

21