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ANDRÉ BIROTTE JR. United States Attorney ROBBERT E. DUGDALE Assistant United States Attorney Chief, Criminal Division JONATHAN E. LOPEZ (SBN 210513) Deputy Chief, Asset Forfeiture and Money Laundering Section Criminal Division United States Dept. of Justice 1400 New York Ave, N.W. Bond Building, Room 2200 Washington, D.C. 20005 Telephone: (202) 307-0846 Facsimile: (202) 616-2547 Email: jonathan.lopez@usdoj.gov Attorneys for Plaintiff UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION ) ) Plaintiff, ) ) v. ) ) JUTHAMAS SIRIWAN, ) aka “the Governor,” and ) JITTISOPA SIRIWAN, ) aka “Jib,” ) ) Defendants. ) ) ______________________________) UNITED STATES OF AMERICA, CR No. 09-81-GW GOVERNMENT'S SECOND SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS RE: INTENT TO PROMOTE AND ORGANIC JURISDICTION Hearing Date: Hearing Time: November 29, 2012 8:30 a.m.

Plaintiff United States of America, through its counsel of record, hereby submits its second supplemental brief to the Court. The government’s second supplemental brief is based upon

the attached memorandum of points and authorities, the files and records in this matter, including, the government’s Response in opposition to defendants’ motion to dismiss the Indictment (DE

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67) and the government’s subsequent filings, as well as any evidence or argument presented at any hearing on this matter. DATED: November 15, 2012 Respectfully submitted, ANDRÉ BIROTTE JR. United States Attorney ROBERT E. DUGDALE Assistant United States Attorney Chief, Criminal Division JAIKUMAR RAMASWAMY Chief, Asset Forfeiture and Money Laundering Section Criminal Division United States Dept. of Justice /s/ JONATHAN E. LOPEZ Deputy Chief, Asset Forfeiture and Money Laundering Section Criminal Division United States Dept. of Justice Attorneys for Plaintiff UNITED STATES OF AMERICA

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MEMORANDUM OF POINTS AND AUTHORITIES The government files this supplemental briefing to further brief the Court with respect to the pending extradition request and certain defense arguments in advance of the scheduled hearing on defendants’ Motion to Dismiss on November 29, 2012. Specifically, this filing will (1) update the Court on the status of the government’s extradition request; (2) provide additional briefing relating to charging a foreign official with a money laundering offense with the FCPA as one of the specified unlawful activities; and (3) inform the Court of two recent cases relating to defendants’ jurisdictional arguments. A. Status of Extradition Request

On November 14th, the undersigned received, via the United States Department of State, a letter from Mr. Thavorn Panichpant, Acting Attorney General of Thailand, dated November 9, 2012, stating, in part: “Currently, we are in the process of gathering further evidences before completing the investigation in order to bring both offenders to court to be formally charged. Hence, we must postpone the extradition process of both persons as requested by the U.S. Government...” (emphasis added). The above letter and translation into

English1, is attached hereto as Exhibit A. It is the government’s position that the above response does not constitute a denial of the government’s extradition request or an assertion of sole jurisdiction over this matter. Attached

as Exhibit B is a letter from the Department of State confirming

The English translation was completed by a United States Embassy employee in Thailand. -1-

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the same.

As stated in previous filings, while Thailand has

chosen to investigate its own domestic law-based charges in the first instance, prosecution by a foreign sovereign does not preclude the United States from bringing criminal charges.2 Regardless of Thailand’s response, as argued previously, and as touched upon in Part C of this filing, reliance on international law in this case is improper as Congress has expressed a clear extraterritorial intent for extraterritorial jurisdiction pursuant to 18 U.S.C. § 1956(f). Where the statute

is clear as to Congress’s intent, then “Article III courts . . . must enforce the intent of Congress irrespective of whether the statute conforms to customary international law.”3 The

government incorporates by reference its previous arguments on this issue. B. See DE 67 at 35-36; DE 84 at 9-13.

Congressional Intent With Regard to the FCPA and the Prosecution of Foreign Officials for Non-FCPA Crimes

One issue that appears to concern the Court is whether a 17 foreign official can be charged with money laundering with the 18 FCPA as a specified unlawful activity, when the foreign official 19 cannot be charged with a violation of the FCPA or conspiracy to 20 violate the FCPA.4 21 rely on United States v. Castle, 925 F.2d 831 (5th Cir. 1991). 22 As discussed further below, the Castle opinion is based on a 23 24
2

The basis of the Court’s concern seems to

25 26 27 28

United States v. Richardson, 580 F.2d 946, 947 (9th Cir. United States v. Yousef, 327 F.3d 56, 92 (2nd. Cir. 2003).

1975).
3

Defendants’ arguments in this area do not apply to defendant Jittisopa Siriwan. -2-

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legal principle that only applies to conspiracies and their relation to underlying substantive charges - in Castle the FCPA. As such, the holding in Castle limiting conspiracy FCPA prosecutions does not extend to the separate and distinct offenses - such as of money laundering. In addition, in passing

the FCPA, there was no Congressional intent to prevent foreign officials from being prosecuted in any situation that touched on bribery. The international promotion money laundering charges

set forth in the indictment are entirely consistent with both Castle and Congress’ intent. 1. The Castle Opinion is Application of the Gebardi Principle and Therefore Necessarily Limited to FCPA Conspiracy Offenses

The Castle opinion is predicated on the Supreme Court case Gebardi v. United States, 287 U.S. 112 (1932), which held that if an agreement needs to be proved to form the substantive prosecution (but one party is exempt from prosecution for the substantive offense), the government cannot then charge that same agreement again in a conspiracy prosecution. as the Gebardi principle. Specifically, in Gebardi, the Supreme Court analyzed the Mann Act which criminalizes the transportation of a woman across state lines for immoral purposes. The Mann Act criminalized the This became known

conduct of the transporter, but not the conduct of the woman herself.5 The Supreme Court held that because a woman who agrees

to participate in a Mann Act violation is exempt from

5

Id. at 118; 18 U.S.C. §398. -3-

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prosecution, the same agreement cannot form the basis of a conspiracy charge.6 The court in Castle applied the Gebardi principle to the FCPA and found that Congress intended in the FCPA “to deter and punish certain activities which necessarily involved the agreement of at least two people, but Congress chose . . . to punish only one party to the agreement.”7 Because foreign

officials, to participate in a bribery scheme, would have to agree to the bribes and because a conspiracy to violate the FCPA would prosecute that same agreement, Castle held that foreign officials’ exemption from the FCPA prosecution also exempted them from conspiracy prosecution. While the Gebardi principle, relied on in Castle, applies to conspiracy charges relating to the underlying substantive offense, it cannot be extended or applied to separate substantive offenses, such as money laundering, which have their own distinct elements beyond merely an agreement.8 The government has not

found, nor has defendant cited, any precedent to the contrary. Like Castle, the court in United States v. Bodmer, 342 F.Supp. 2d 176 (S.D.N.Y. 2004) applied the Gebardi principle in prohibiting the prosecution of an FCPA exempt individual for conspiracy to violate the FCPA. In Bodmer, the defendant was

charged with conspiracy to violate the FCPA and money laundering
6

25
7

Id. at 123. Castle, 925 F.2d at 833 (emphasis added).

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8

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For example, FCPA violations do not require financial transaction involving the United States, as money laundering violations do. -4-

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conspiracy.

Bodmer was not a foreign official but a foreign

national agent who, like foreign officials, could not be prosecuted criminally under FCPA as it existed at the time of his offenses.9 While Bodmer held that Gebardi applied to the FCPA

conspiracy charge, Bodmer further held that Gebardi did not extend to the money laundering charge. Unlike conspiracy

charges, which involve “precisely the same conduct,” Bodmer explained that “[t]he elements of a money laundering offense do not include, or even implicate, the capacity to commit the underlying unlawful activity.”10 The reason that Bodmer did not

dismiss the money laundering charge was that Gebardi applies does not apply to separate substantive offenses such as money laundering. Indeed, the court in Bodmer stated that “no court

has ever applied the Gebardi principle to dismiss a charge of conspiracy to launder money.”11 2. Legislative history concerning foreign officials

In previous arguments before the Court there have been several references to the nature of the FCPA’s legislative history concerning foreign officials. Simply put, there is no

legislative history explaining Congress’ intention not to have foreign officials prosecuted under the FCPA. Indeed, the FCPA

only exempts foreign officials from prosecution by implication of the FCPA’s structure. There are no statements by Congress

concerning its intent that bribe receiving foreign officials

9

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10

Id. at 181. Id. at 190-91. Id. at 190 n. 15. -5-

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should not be prosecuted.

The elements of the FCPA only apply to

the bribe-giving side of a corrupt transaction, which is why foreign officials are exempt. Therefore, although Congress was

clear that foreign officials could not be prosecuted under the FCPA, it did not give an explanation, and this Court should not assume that Congress’ reasoning would apply to any other statute. In addition, in the FCPA’s legislative history, Congress was necessarily silent on the subject of money laundering as money laundering was not a federal offense until nine years later. Congress could not have expressed an intent to prevent prosecution of foreign officials from a category of crime that had yet to exist. Because substantive offenses are necessarily different from each other, in construing them it is important to look at each statute’s own legislative history. Indeed, the money laundering

statutes were passed by Congress to achieve different purposes than the FCPA. Of particularly relevance here, in 2001, Congress passed § 315 of the Patriot Act, 18 U.S.C. § 1956(c)(6)(B)(iv), that included as specified unlawful activity a variety of

offenses “against a foreign nation” including “bribery of a public official.” explained, By expanding the definition of “Specified Unlawful Activity” to include a wide range of offenses . . . we are confirming that our money laundering statutes prohibit anyone from using the United States as a platform to commit money laundering offenses against foreign jurisdictions in whatever form that they occur. It should be clear that our intention that the money laundering statutes of the United States are intended In passing this provision, Senator Kerry

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to insure that all criminals and terrorists cannot circumvent our laws.12 A foreign bribery violation necessarily involves a foreign

3 official, and Congress was emphatic that the money laundering 4 statutes reach as broadly as possible. 5 In addition, Congress has subsequently expressed its support 6 of money laundering prosecutions against foreign officials. 7 Congress described the inclusion of foreign bribery as a 8 specified unlawful activity as having, “for the first time, made 9 the knowing acceptance of foreign corruption proceeds a money 10 laundering offense.”13 11 provision was one component of the “anti-corruption battle” 12 against “politically powerful foreign officials, their relatives, 13 and close associates [who] utilize U.S. financial institutions to 14 conceal, transfer, and spend funds suspected to be the proceeds 15 of corruption.”14 16 As a consequence, it is clear that Congress intended that 17 money laundering offenses be permitted against foreign officials 18 who accept bribes in violation of foreign bribery law and use 19 U.S. financial institutions in doing so. 20 21 22 23 24 25 26 27 28 Proceedings and Debates, USA Patriot Act of 2001, 147 Cong. Rec. S10990-02 (Oct. 25, 2001), 2001 WL 1297566 (emphasis added). United States Senate Permanent Subcommittee on Investigations, Committee on Homeland Security and Governmental Affairs, Majority and Minority Staff Report, Keeping Foreign Corruption Out of the United States: Four Case Histories at 9 (Feb. 4, 2010) available at http://www.hsgac.senate.gov/subcommittees/investigations/hearings (emphasis added).
14 13 12

Congress further explained that this

It would be

Id. -7-

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inconsistent for Congress to intend to make these same bribereceiving foreign officials exempt from prosecution for money laundering offenses predicated on the separate specified unlawful activity of violation of the FCPA. 3. Precedent for Prosecution of Foreign Officials for Non-FCPA Crimes

There is binding precedent in the Ninth Circuit that foreign 7 officials who accept bribes are not exempt from money laundering 8 prosecutions where the underlying specified unlawful activity is 9 akin to foreign bribery, despite the FCPA’s exemption. 10 States v. Lazarenko, “Lazarenko was extremely powerful as the 11 governor of the Dnepropetrovsk region of the Ukraine” and 12 “required businesses to pay him fifty percent of their profits in 13 exchange for his influence to make the businesses successful.” 14 564 F.3d 1026, 1030 (9th Cir. 2009). 15 among other offenses, money laundering with extortion as a 16 specified unlawful activity. 17 Because the extortion was the equivalent of international 18 bribery, Lazarenko argued that he was exempt from prosecution 19 under the money laundering laws as a foreign official on the 20 receiving end of a bribe, as the FCPA exempted that class of 21 offenders from prosecution.15 22 the FCPA’s exemption of foreign officials, the holding in Castle, 23 and the resemblance of Lazarenko’s actions to bribery, 24 25 26 27 28 Lazarenko, 564 F.3d at 1038; Def. Br. 2007 WL 2302047. Notably, both Lazarenko and the Ninth Circuit appear to acknowledge that, after the Patriot Act was passed in 2001, foreign officials who engage in transactions involving proceeds of foreign corruption are squarely liable under the money laundering statutes. Id. -815

In United

Lazarenko was charged with,

Id. at 1038.

The Ninth Circuit, acknowledging

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nonetheless rejected this argument. Id.

In sum, Lazarenko (like

defendant Juthamas Siriwan) could not have been prosecuted under the FCPA or for conspiring to violate the FCPA but could be prosecuted for money laundering. Other precedent for prosecution of foreign officials in bribery cases includes three cases from the Southern District of Florida. There, three money laundering prosecutions have been

successfully brought against former foreign officials relating to international bribery schemes where they accepted bribes. United States v. Antoine, and United Sates v. Joseph, the defendants pleaded guilty to one count of a money laundering conspiracy where the specified unlawful activities were violation of the FCPA, violation of Haitian bribery law, and wire fraud.16 In United States v. Duperval, the defendant was tried and convicted on two counts of money laundering conspiracy and 19 counts of money laundering where the specified unlawful activities were violation of the FCPA, violation of Haitian bribery law, and wire fraud.17 In all three cases, no challenge In

was made by the former foreign officials that they were exempt from prosecution of the money laundering charges against them because, as foreign officials, they could not be prosecuted under the FCPA.

See Plea Agreement, United States v. Antoine, No. 09-cr21010, DE No. 135 (S.D. Fla. Mar. 12, 2010); Plea Agreement, United States v. Joseph, No. 09-cr-21010, DE No. 706 (S.D. Fla. Feb. 8, 2012). See Verdict, United States v. Duperval, No. 09-cr-21010, DE No. 757 (S.D. Fla. Mar. 13, 2012). -917

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In addition, two foreign officials have pleaded guilty to FCPA charges where they acted as intermediaries for bribes to other foreign officials.18 Neither raised any challenge based on

an argument that foreign officials were categorically exempted from FCPA prosecution. point: These cases demonstrate an important

Although receipt of an international bribe by a foreign

official may not violate U.S. law, other, related conduct such as serving as an intermediary for the bribe (or, as we argue, laundering the bribe proceeds) can still be prosecuted. C. 1956(f) is the Appropriate Jurisdictional Statute

The government brings to the Court’s attention two recent cases relating to defendants’ jurisdictional arguments that 18 U.S.C. § 1956(b)(2)(A) is the appropriate jurisdictional statute: United States v. Kuok,671 F.3d 931 (9th Cir. 2012) and United States v. Galvis-Pena, 2012 WL 425240 (N.D. Ga. Feb. 9, 2012). Both of the above cases cite to and interpret § 1956(f) as the appropriate extraterritorial jurisdictional statute in criminal money laundering violations – even in situations where § 1956(h) (conspiracy) and 18 U.S.C. § 2 are alleged. As these cases

illustrate, and as argued previously, the jurisdiction in this case is proper and Section § 1956(b)(2)(A) is irrelevant to the criminal money laundering jurisdictional discussion. In Kuok, the defendant, who is a citizen of Macau, was indicted for conspiracy and substantive violations of arms export control violations, as well as with international promotion money

See Plea Agreement, United States v. Basu, No. 02-cr-475 (D.D.C. Dec. 17, 2002); Plea Agreement, United States v. Sengupta, No. 02-cr-40 (D.D.C. Jan. 30, 2002). -10-

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laundering pursuant to both § 1956(a)(2)(A) and 18 U.S.C. § 2 (Count 4 of Indictment) in connection with transmitting funds with the intent of carrying on the smuggling and export offenses charged under the export control act (Counts 2 and 3 of the Indictment). Kuok’s conduct, as it relates to the international

promotion money laundering offense, was that of arranging for a wire transfer from outside of the United States of $5,400 into the United States for the purchase of a prohibited encryptor. The funds were subsequently picked up in San Diego by an undercover law enforcement agent. The defendant in Kuok challenged the government’s jurisdictional authority pursuant to the monetary requirement of § 1956(f) - which requires that at least $10,000 in funds be transmitted. The Ninth Circuit analyzed the jurisdictional

impact of § 1956(f) (not § 1956(b)(2)(A)) and found that while the government established that relevant conduct had occurred, in part, in the United States (due to Kuok’s arranging of the wire transfer into San Diego), the monetary threshold had not been met and vacated the money laundering conviction. Id. at 940. In Galvis-Pena, the defendant was charged violations of conspiracy pursuant to § 1956(h), money laundering pursuant to § 1956(a) and aiding and abetting pursuant to § 2. Defendant

Galvis-Pena argued that the court lacked jurisdiction under § 1956(f) because his conduct occurred outside the United States and that there was no evidence that he personally made any transfers into or out of accounts in the United States. *2-3. Id. at

The court in Galvis-Pena first found that § 1956(f)

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provides for extraterritorial jurisdiction over § 1956(a) cases, including in cases where conspiracy (§ 1956(h)) and aiding and abetting (§ 2) are also charged.19 The court then stated that

with respect to the substantive money laundering counts, whether conduct occurred in part in the United States was a “jurisdiction defense intermeshed with questions going to the merits of the case and should not be determined by pre-trail motion...indeed such questions are for a jury to decide.” Id. at *3-4.20

Importantly, the court noted that the above defense argument only applies to the substantive offense of money laundering, and not the conspiracy or aiding and abetting charges. “Even if

Galvis-Pena did not personally make transfers into or out of accounts in the United States, he could be subject to the court’s jurisdiction for conspiring to do so or for aiding and abetting others in doing so.” Id. at 3.

The instant Indictment on its face establishes that conduct occurred in the United States. Similar to defendant Kuok

defendants arranged for wire transfers out of the United States into bank accounts all over the world.21 Defendants also set up

all of the overseas bank accounts to receive from the United States (all in excess of $10,000).22 In addition, defendant

2012 WL 425240 at *2-3 (N.D. Ga. Feb. 9, 2012)(citing United States v. Belfast, 611 F.3d 783, 813 (11th Cir. 2010) and United States v. Yakou, 428 F.3d 241, 252 (D.C. Cir. 2005)). The court also cited Fed. R. Crim. P. 12(B)(2) stating only those defenses that the court can determine without a trial of the general issue may be raised by pretrial motion.
21 20

19

Indictment at ¶¶19,25, Overt Act #2. Indictment at ¶18. -12-

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Juthamas Siriwan, made several trips to the United States.23 Defendants’ attempts to claim that their actions do not constitute “conduct”24 in the United States ignore wellestablished case law. In the Ninth Circuit, for example, a

defendant need only be aware of the transfers for § 1956(a)(2)(A) liability. Specifically in United States v. Moreland, 622 F.3d

1147, 1166-67 (9th Cir. 2010), a § 1956(a)(2)(A) case, the court held that the defendant was liable for the transfers because he was “behind” the wires and “controlled” the accounts the money was going into.25 Even assuming defendants’ take issue with the

above facts, pursuant to Galvis-Pena, the evidentiary issue of conduct is for trial, not a pre-trial motion. Most importantly, at no time in Kuok or Galvis-Pena, did the court, the government, or defense in any way discuss or consider the jurisdictional implications of 18 U.S.C. § 1956(b)(2)(A), defendants’ proffered jurisdictional statute. The reason for

this is simple, § 1956(b)(2)(A) is not a criminal jurisdictional limitation on § 1956(f). Indeed, defendants have failed to cite

one criminal case, let alone a criminal case involving § 1956(a)(2)(A), that supports their position that a major change

Indictment at ¶25. The government proffers that defendant Jittisopa Siriwan also made several trips to the United States in support of their scheme. Regardless, the ability of the government to prove that conduct occurred in the United States is a trial issue, not one relating to the sufficiency of the indictment. United States v. Buckley, 689 F.2d 893, 897-99 (9th Cir. 1982).
24

23

DE 87 at 12.

See also United States v. Gotti, 459 F.3d 296, 335 (2d Cir. 2006)(person who accepts a transfer of cash participates in the conclusion of the transfer, and therefore “conducts” the transaction). -13-

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in jurisdictional reach, limiting the power of the government, occurred in 2001 with the enactment of the penalty provisions of § 1956(b)(2)(A). As set forth in Kuok, Bodmer, Galvis-Pena, and

every case that has looked at criminal extraterritorial jurisdiction, § 1956(f), not § 1956(b)(2)(A), is the appropriate jurisdictional statute and defendants’ jurisdictional claims and arguments stemming from those claims, should be denied. This Court should DENY defendants’ Motion to Dismiss. DATED: November 15, 2012 Respectfully submitted, ANDRÉ BIROTTE JR. United States Attorney ROBERT E. DUGDALE Assistant United States Attorney Chief, Criminal Division JAIKUMAR RAMASWAMY Chief, Asset Forfeiture and Money Laundering Section United States Dept. of Justice

16 17 18 19 20 21 22 23 24 25 26 27 28 -14/s/ JONATHAN E. LOPEZ Deputy Chief, Asset Forfeiture and Money Laundering Section Criminal Division United States Dept. of Justice Attorneys for Plaintiff UNITED STATES OF AMERICA

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