Case 4:09-cr-00629 Document 58 Filed in TXSD on 04/18/11 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

UNITED STATES OF AMERICA, Plaintiff,

§ § § § § § §

CRIMINAL NO. Cr-H-09-629

v.

JOHN JOSEPH O'SHEA, Defendant.

DEFENDANT O'SHEA'S REPLY TO THE RESPONSE OF THE UNITED STATES TO DEFENDANT'S MOTION TO DISMISS COUNTS ONE THROUGH SEVENTEEN OF THE INDICTMENT

I. INTRODUCTION

On March 7, 2011, Mr. O'Shea filed his Motion to Dismiss Counts One through

Seventeen of the Indictment ("Motion") (Docket No. 47) because each of these counts rests

entirely or in part on an incorrect legal conclusion that a state-owned entity is per se a

"department, agency and instrumentality of a foreign government," and that its officers and

employees are "'foreign officials' within the meaning of the FCPA." Indictment, ~~ 5-6. On

March 28,2011, the government filed its Response. (DocketNo. 50).

II. ARGUMENT

A. The Government Relies on "Prosecutorial Common Law" and Rulings from Cases That Did Not Consider or Inadequately Considered the Meaning of Foreign Official

To support its expansive interpretation of the Foreign Corrupt Practices Act ("FCPA"),

the government notes that thirty-five individuals have entered guilty pleas after being accused of

violating the FCPA. Response at 14. The Court should give no weight to these guilty pleas

because each individual had his or her own reasons for entering into a plea agreement with the

government. As long as FCP A defendants-both individuals and corporations-enter into non-

prosecution agreements, deferred prosecution agreements, and plea agreements, the government

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will continue to build its arsenal of "prosecutorial common law" to support its aggressive and

slanted interpretation of the FCP A.' Yet court acceptance of plea agreements does not convert

the government's pronunciations on the law into sources of legal authority. Indeed, the

government's strategy of creating its own would-be common law threatens to strip the federal

courts of their judicial power to interpret the FCP A.

The federal courts, and not the Department of Justice nor any other division of the

executive branch, are the [mal arbiters of what the FCPA actually provides. See U.S. Const. art.

III, § 1; Marbury v. Madison, 1 Cranch 137, 177 (1803) ("It is emphatically the province and

duty of the judicial department to say what the law is."); United States v. Nixon, 418 U.S. 683,

704 (1974) (Judicial power "can no more be shared with the Executive Branch than the Chief

------------

Executive, for example, can share with the Judiciary the veto power, or the Congress share with

the Judiciary the power to override a Presidential veto," and sharing of powers "would be

contrary to the basic concept of separation of powers and the checks and balances that flow from

the scheme of a tripartite government"). The Court should reject the government's attempt to

bootstrap its own expansive interpretation of the FCP A into the statute through "prosecutorial

common law."

The denial of two past motions to dismiss similarly provides no support for the

government's broad reading of "instrumentality" in the FCPA's foreign official provision. The

government cites to orders issued by the district courts in the Eastern District of Pennsylvania

and the Southern District of Florida on challenges to the FCPA's "foreign official" provision.

Response at 14. But these orders denied the motions to dismiss with little or no substantive

analysis of the FCP A and its foreign official provision, and without the benefit of the analysis of

1 See Bingham's Michael Levy on the Rise ofProsecutorial Common Law, 25 Corporate Crime Reporter 6, Feb. 7, 2011, available at 4ttp:llwww.corporatecrimereporter.com/michaellevy020711.hhn (describing what author has called "prosecutorial common law") (hereinafter referred to as "Levy Interview").

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legislative history offered in the parties' briefing in this case. Response Exs. H, 1. A more recent

denial of a motion to dismiss, issued by the Honorable A. Howard Matz in United States v.

Aguilar Noriega, et al., No. 10-1031 (C.D. Ca. 2011), was apparently tied to the court's

understanding that a fact dispute existed with regard to Comisi6n Federal de Electricidad

("CFE")'s "governmental function." That ruling, far-from endorsing the government's position

on the scope of "foreign official" in the FCPA, supports the inquiry that Mr. O'Shea requests

into the nature and role of CFE within the Mexican government.

Similarly, while jury instructions are irrelevant when the issue at hand was not considered

by the issuing court, Mr. O'Shea has located jury instructions submitted to the jury in a trial in

the Southern District of Texas after the issue was well-argued and associated facts presented in

the district court. In United States v. McLean, Cr. H-82-224 (S.D. Tex. 1985), the jury

instructions defined "instrumentality of a foreign government" to mean "any entity created,

owned, or controlled by a foreign government to achieve a governmental purpose or function."

Ex. 1, Excerpt from Rudolf B. Schlesinger et al., Comparative Law: Cases, Text, and Materials

78 (New York, Foundation Press, 6th ed. 1998) (quoting the jury instructions given in McLean).

Thus, the government's attempt at creating a prosecutorial common law aside, it can cite

no authorities in support for its position, while the courts that have looked closely at the issue

have adopted analyses focused on sovereignty or government function.

B. The Government Takes Conflicting Positions on How to Define "Instrumentality," But Apparently Accepts a "Governmental Function" Test

The government asserts on the one hand that in order to show that CFE is an

instrumentality, it is entitled to the opportunity to present further facts related to the nature of

CFE and the government's ownership and/or control over the utility. Response at 2. It asserts

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on the other hand that it need only plead, as it has, that CFE is an electric utility owned by the

government of Mexico that supplies electricity to the public. Response at 5.

In the end, the government does not and cannot provide a concrete definition for

"instrumentality" as used in the FCP A; it never articulates the test to make such determinations.

It never defmes what makes something a "state-owned enterprise," sufficient to render it an

"instrumentality" under the FCP A. It asks instead that the Court accept its judgment that in any

case, CFE employees are within the definition of foreign official.

This is deliberate ambiguity on the government's part, and flies in the face of Skilling v.

United States, 130 S. Ct. 2896,2927 (2010), which holds that the statute must be construed in a

manner that does not render it unconstitutionally vague, something that can only be done if

"instrumentality" is construed to encompass bona fide government entities.

Just as the government's position within this case is uncertain, the government has a

history in suits in which the sovereign status of an entity becomes an issue of taking the most

advantageous position in each suit. In fact, while the government has since indicted defendants

for paying bribes to employees ofPemex, in the past, the government has successfully argued the

opposite position that this Mexican state-owned corporation similar to CFE was not an

"instrumentality" under common law and the Restrictive Theory of Sovereign Immunity

(superceded in the 1970's by the Foreign Sovereign Immunities Act). See Ex. 2, United States v.

Tug PemexXV, 1 AMC 896,1960 WL 99004 (S.D. Tex. Jan. 14, 1960).

C. Officers and Employees of a State-Owned Entity Are Not "Foreign Officials" Where the Entity is a Commercial Enterprise Whose Function is not Governmental

The government attempts to refute the canon that "instrumentality" is best understood by

noticing what the other words in the series=-department and agency-have in common with

each other (noscitur a sociis). It does so by arguing that state-owned corporations are really very

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much like government agencies and departments, and any line drawn between a commercial

enterprise and an entity with a governmental mission would be "illusory" where the services

provided by CFE are a "public service." But departments and agencies (and commissions as that

term is known in United States, but not, apparently, "comision" in Spanish, to judge by its use in

CFE's name) typically exercise sovereign authority, whether legislative or executive in nature.

State-owned corporations like CFE do not.

The government nevertheless points out that under the Mexican Constitution and the

Public Service Act of Electricity of 1975, the distribution of electricity as a public service (but no

longer its generation) is reserved to the Mexican government. But the government omits the fact

that CFE provides the electricity for sale to its customers. See Comisi6n Federal de Electricidad,

.----.----~----

The Company, http://www.cfe.gob.mxllang/enlPageslthecompany.aspx (last visited Apr. 12,

2011) (describing the distribution of its sales to customers). Further, any profits are distributed

to CFE empl«Yees. And while those constitutional and statutory provisions mandate a

government monopoly as to distribution of electricity, they do not specifically create sovereign

authority in the form of administrative or executive powers in CFE.

In fact, governmental authority related to electricity is reserved to the centralized

government, while CFE, as the government points out, is a "decentralized public entity with

legal personality and its own patrimony." Response at :2 (citing Exhibit B, the Mexican Public

Service Act of Electricity of 1975). Thus, the Secretaria de Hacienda y Credito Publico

("SHCP") (the equivalent of the United States Treasury Department) sets tariffs on imports of

electricity, while the Secretaria de Energia (the equivalent of the United States Department of Energy), along with SHCP, sets electricity rates? CFE's participation in determining tariffs and

2 See The North American Energy Working Group, Guide To Federal Regulation of Sales of Imported Electricity in Canada, Mexico, and the United States, at 5, 7, Jan. 2005,

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rates is strictly limited to membership on boards that make pertinent recommendations, subject to

approval. CFE makes the determination to shut off a customer's electricity for non-payment, but

Mexican courts have determined that such an act is not a state action ("acto de autoridad'y, and a

suit against CFE complaining of such action sounds in contract, not in civil rights law

("amparo,,).3

D. The FCPA's Legislative History Supports a Narrow Reading of "Instrumentality," or the Application of the Rule of Lenity

The government asserts that the legislative history surrounding the FCP A does not

expressly adopt Defendant's narrow reading of "instrumentality," but it misses the point.

Legislative history sources reflect that in passing the statute, Congress was concerned with bribes

materials explicitly adopts state-owned corporations as instrumentalities, and under the rule of

lenity, a tie of this nature goes to the defendant. The government argues that the rule of lenity is

reserved for "grievous" ambiguities, but here, where long sentences are at stake despite the

scarcity of judicial interpretation of the FCPA,the ambiguity surrounding the meaning of

"instrumentality" is indeed grievous.

The government's quote from legislative materials on pages 15 and 16 does not support

its position. The quotation discusses the great number of corporations involved in offering

bribes, not corporations taking such payments. The market sectors named in this material as

http://www.pi.energy.gov/documentsINAEWGERGuideFinal.pdf (discussing tariffs); Response Ex. B at 11 (discussing electricity rates).

3 See Ex. 3, Translation of "Federal Electricity Commission. A Receipt Notice of Electrical Power Supply, Even When Containing a Service Disconnection Warning, Is Not an Act of Authority for The Purposes Of

Amparo Proceedings," Institute for Legal Research in Mexico, Aug. 2010, available at http://www.juridicas.unam.mx/infjur/leg/jrs/jrsVer.htm?idt=29453 (explaining a Mexican court ruling that a disconnection of power service by CFE is not an act of authority that can be pursued through civil rights law-in Spanish, amparo-it is a matter of private contract); "Federal Electricity Commission, the Disconnection or Suspension of Electrical Power Supply Is Not an Act of Authority for the Purposes of Amparo Proceedings," Institute for Legal Research in Mexico, Aug.' 2010, available at http://www.juridicas.lmam.rnxlinfjur/leg/jrs/jrsVer.htln?idt=29454 (same).

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justifying the FCP A are less a list of sectors in which the government ownership is common, and

more a list of sectors that are heavily regulated, such as oil and gas, pharmaceuticals, and the

manufacture of food products.

E. The Government's Counterarguments in Support of a Broad Reading of "Instrumentality" Fail

1. The government's attempts to opine on the "plain and ordinary" meaning of FCPA's "instrumentality" or to rely on other statutes' definitions is unavailing.

The government states that "[i]nstrumentality is not an uncommon word in the law."

Response at 4 (emphasis added). But the legal definition of "instrumentality" cannot be the

source for determining a word's ordinary meaning because a criminal statute must have a

The government argues alternatively that "instrumentality" should be given the meaning that is

defined in the Foreign Sovereign Immunities Act ("FSIA"), passed in 1976, and the Economic

Espionage Act. Response at I 0-11. But these two definitions are themselves different: one is

about majority ownership, while the other mentions substantial ownership and control. See Mot.

at 4. Moreover, the FSIA contains an important exception for commercial activity that prohibits

its application when an entity is acting more like a corporation; while approaching the problem

differently, it therefore reflects the same interest that Mr. O'Shea has argued is incorporated into

the FCPA in separating the "commercial" from the governmental. 28 U.S.C. § 1605(a)(2)

(2008). The Dodd-Frank Act, meanwhile, specifically refers to state-owned entities, and

distinguishes them from "instrumentalities." See Dodd-Frank Wall Street Reform and

Consumer Protection Act, Pub. L. 111-203, 124 Stat. 1376 (July 21, 2010). Indeed, as the

government mentions, "instrumentality" is used in the Code 1,492 times (at 4). And it is evident

that the word "instrumentality" simply does not have an accepted legal definition.

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2. The FCP A's grease payment exception does not support a broad reading of "instrumentality"

The FCPA's "routine governmental action" or "grease payment" exception provides that

routine governmental action "means only an action which is ordinarily and commonly performed

by a foreign official in" among other things, "providing phone service, power and water

supply[.]" 15 U.S.C. § 78dd-2(h)(4) and 2(b) (the latter permitting payments to foreign official

and others to "secure the performance of a routine governmental action by a foreign official,"

among others). The government reasons that this provision of the FCP A proves that Congress

intended entities that provide power supply to be foreign officials; otherwise, the mention of

power supply would be superfluous. Response at 7. But the Court need not disagree with this in

"instrumentalities," and their employees not "foreign officials." The focus of the "foreign

official" definition is not the nature of the service provided by the entity in question, but rather

the nature of the entity in question. Nothing in the text of the FCPA suggests that state-owned

corporations that are commercial enterprises can be instrumentalities-no matter what their

business is. U.S.C. § 78 dd-2 (h) ( 4):

Further, to the extent that the concern is reading portions of the FCP A in such a way as to

render them superfluous, the FCP A provides that it shall not constitute a violation of the statute

if the person charged can prove that the payment in question constituted "a reasonable and bona

fide expenditure, such as travel and lodging expenses," and that it was "directly related to (A) the

promotion, demonstration, or explanation of products or services; or (B) the execution or

performance of a contract with a foreign government or agency thereof." 15 U.S.C. § 78dd-2(b)

and ( c). The government says the statute must be construed to give meaning to all of its parts,

but it never explains why the "bona fide expenditure" affirmative defense does not extend to

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payments made to employees of government instrumentalities, but just to agencies. If state-

owned corporations are included within the definition of "instrumentality," this omission makes

no sense.

3. The Charming Betsy argument is inapplicable.

The government also makes a Charming Betsy argument" that the Court must accept the

government's interpretation of "instrumentality" because otherwise, the United States will not be

in compliance with its treaty obligations under the Organization for Economic Cooperation and

Development Convention on Combating Bribery of Foreign Public Officials in International

Business Transactions ("OECD Convention"). In this case, the government's contention that its

interpretation is more consistent with the OECD Convention is not supported by the text of the

FCP A, and there is no legislative history suggesting Congress intended to adopt this

interpretation when it amended the FCPA. Indeed, the government's interpretation distorts the

FCPA and its history, rendering the Charming Betsy canon inapplicable. Munoz v. Ashcroft, 339

F.3d 950, 958 (9th Cir. 2003) (refusing to apply the Charming Betsy doctrine because the statute

in question could not be fairly construed consistently with the treaty the plaintiff cited because

"[t]he language of the statute provides absolutely no support for such a construction" and

"Congress never suggested or hinted that" it meant for the statute to conformj.'

The "instrumentality" language on which the government hangs its hat has been in the

statute (and has remained unchanged) since 1977. Therefore, it is the intent of that 1977

Congress, and not any subsequent Congress (none of which revised that language or otherwise

4 Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) ("[A]n act of Congress ought never to be construed to violate the law of nations ifany other possible construction remains[.]") (emphasis added).

5 Nor is the OECD Convention without comment on the subject. Commentary 15 to the OECD Convention provides that "[a]n official of a public enterprise shall be deemed to perform a public function unless the enterprise operates on a normal commercial basis in the relevant market, i.e., on a basis which is substantially equivalent to that of a . private enterprise, without preferential subsidies or other privileges." See Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, available at http://www.oecd.org/dataoecdl4118/38028044.pdf; Response Ex. D. (emphasis added).

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included state-owned entities) that matters. See Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1081

(2011) ("Post-enactment legislative history (a contradiction in terms) is not a legitimate tool of

statutory interpretation.") (citing Jones v. United States, 526 U.S. 227,238 (1999); United States \

v. Mine Workers, 330 U.S. 258, 281-82 (1947)). "Real (pre-enactment) legislative history" is

persuasive because it sheds light on what legislators understood the text of an ambiguous statute

to mean when voting to enact it into law. Id. at 1081-82 (citing Exxon Mobil Corp. v. Allapattah

Servs., Inc., 545 U.S. 546, 568 (2005)). On the other hand, post-enactment legislative history by

defmition "could have had no effect on the congressional vote." Id. (quoting District of

Columbia v. Heller, 554 U.S. 570, 605 (2008)). The government offers no "real legislative

history" in support.

In any case it is certain that the FCP A does not completely conform to the OECD

Convention. The OECD Convention does not contain an express facilitating payment exception

like the FCPA's. Instead, commentary 9 to the OECD Convention states that the Convention

views facilitating payments as not relevant to obtaining or retaining business. See Convention on

Combating Bribery of Foreign Public Officials in International Business Transactions, available

athttp://www.oecd.org/dataoecd/4118/38028044.pdf; Response Ex. D. Even this concession to

business needs is becoming less accepted by the OECD,6 but the FCPA's provision remains

unchanged.

Further, other signatories to the treaty do not accept the inclusion of state-owned

corporations. The United Kingdom's new foreign bribery act does not include employees of

state-owned corporations to be "foreign public officials."

The Court should therefore determine that Congress could have, but deliberately did not,

6 See The End of the FCPA Facilitation Payment Exception?, http://tfoxlaw.wordpress.com/2010111/11/the-end-ofthe-fcpa-facilitation-payment-exception (Nov. 11,2010).

7 See An Ocean Apart, http://fcpaprofessor.blogspot.com/2011/01/ocean-apart.html (Jan. 16, 2011).

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bring the FCP A into perfect conformity with the OECD Convention because it chose not to

adopt the "state owned enterprise" language from the OECD Convention in 1998, just as it chose not to incorporate state-owned entities in the 1977 and 1988 amendments to the FCPA.8

4. The Use of "Any" in the FCPA Provision Does Not Support a Broader Reading of "Instrumentality"

The government also argues that Congress intended the FCP A to be interpreted broadly

because it did not provide a definition .of "instrumentality" and the word "any" exists in the

FCP A, both of which supposedly indicate that instrumentalities include state-owned entities. See

Response at 10.

But the word "any" merely signals that once the limits of "instrumentality" are discerned,

~._____.__.anything_within thos_e_Jimitsjs_within_the_statute._Eurther,~'anY'''_app_ears_b_efQ1:_e_'.:_d~partm~nt,_____ __ .~. _

agency or instrumentality," and not directly before "instrumentality." "Any" therefore modifies

the entire list within which "instrumentality" falls.

And as to the lack of a definition for "instrumentality," as seen in other statutes, Congress

knows how to define "instrumentality" to include state-owned entities. Mot. at 4. For example,

as the government mentioned in the Response, the Foreign Sovereign Immunities Act ("FSIA")

was passed the year before the FCP A' s enactment. Response at 11. If Congress wanted to

defme instrumentality to include state-owned entities, as it did in the FSIA, surely it did not

forget how to do so one year later.

5. Absurdities flowing from the government's broad readings of "instrumentality" and "foreign official" are far from "hypothetical"

The government argues that the absurd results flowing from its broad reading of the

FCPA are "irrelevant" and "imaginary". Response at 13-14. To the contrary, the federal

8 Simultaneously with the filing of this Reply, Mr. O'Shea files a Motion to Strike the Declaration of Clifton M. Johnson because the government uses the declaration to introduce into evidence inadmissible hearsay, expert testimony, and irrelevant information related to the OECD Convention and other issues. See Response Ex. G.

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government's substantial ownership in American corporations such as General Motors is far

from imaginary. And in Houston, the legal and business communities are keenly aware of highly

visible foreign energy companies such as CITGO (a wholly-owned subsidiary of a Venezuelan-

state-owned oil corporation, Petroleos de Venezuela S.A.) with substantial numbers of

employees in the city, many of whom are American citizens and American-born. The

government's position would make foreign officials of such employees.

III. CONCLUSION

For all the reasons set forth in the Motion and in this Reply, Mr. O'Shea respectfully

requests that the Court dismiss Counts One through Seventeen of the Indictment.

lsi Joel Androphy Joel Androphy

State Bar No. 01254700 S.D. Tex. 53457

Sarah M. Frazier

State Bar No. 24027320 S.D. Tex. 27980

Ashley Gargour

State Bar No. 24065272

S.D. Tex. 1040478

Berg & Androphy

3704 Travis Street

Houston, Texas 7'(002 Telephone (713) 529-5622 Facsimile (713) 529-3785 Email: jandrophy@bafirm.com Email: sfrazier@bafirm.com Email: agargour@bafirm.com

ATTORNEYS FOR DEFENDANT JOHN JOSEPH O'SHEA

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CERTIFICATE OF SERVICE

On April 18, 2011, a true and correct copy of the foregoing document was served on counsel electronically through the CM/ECF System.

/s/ Sarah M. Frazier

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The CQurt, however, affirmed the de(endants' conviction on the conapiracy count,holdingtbatwith res)',lsct to toot eount the td:al judge's error was hro.-mless;ll because the COl1spiracy clearlyahned at ilIegaJl;ydealing with artifacts e:g:ported (and to be eXported) from MelCic;:o after the effective dateot the 1972 statute.~

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(4) • In the Fifth Circuit,.ithas beenheJdthe.tt~e proper COl1.structionofa legal term des~ibing aneaaent,ial element of'a federal offense is itself.an essential element of that offense, and has to besubmlttedtc the jury. United States v. Johnaop, 118 F.2dlS17; 1322-23 (5th Cir.1983) ("security" BS used intederel secutitiolllegisletion).tJndert'hiaapproach,it israveI'sil.)lE) wortpkeep expert evidence on the meaning even ofdomesti.c~Iaw terlnS from the jury. United States v, Garber, 607 E2d 92 (5th Cir.197·9) (remuneration fa)' twrpa.yer's blood a.a"income'; fOl:federru income ta. x ;purposes). In United. States v. McLeaTl, Cr. H-82-,.224 (S;P,T¢x. wa5)) both:. thepl'oaecutionand thedef611~epresented expert teatim1mytotl16 jUry'ol.l.the questiiJn whether Psmex (Pefujleos :Menca:nos) wasan clil1stl."urne:ntallty"ofth,e Mexic a,nst<Iteforpurposes of the Jroo:eign Corrupt Practice&Act,15U;S.CA. § 7BdiI-.2.As~he.dGfendant wasaequitted, there was no appellateseque], For background, $eeU})itedStatl;!sv. McLean,

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see. lAo this case. They are cited supra n.e. .

12. A rar.der who is an QJl.cionadd of lS.Eemelnberl'ihathappBl1ecl. to the

pra-Coltlin.biaUart, of srt.law, Qr of thrilling appe.llsot In th~ :Fitl:patriof, eaae? See a\i'pra cl'i.m.e 9torie~,willlinditrewJlXding to ~erU8e sea.i/!"

Case 4:09-cr-00629 Document 58-1 Filed in TXSD on 04/18/11 Page 4 of 6

, 77

D; Exp.'ERTWITNESS [p, 13)

Yt;\Uhave}u~a.rd the testi.mony otl\1:;r, I>a~d and ProrassorBaade, whO testmedllSeJq1erte in their .fielda, You may cOlisidettheil.- tS$t.imonyto determine whether Pemex was hl fact at the time a'llegedinthe indictment a foreign government or instrumentality thereof, M dermed· in these instructions. The testimony of an expert wltnessis adrniasiqle where the siibjectma.ttel' involved requires specialstiidy, training, orekil! not within the l'eahnofthe ordinary e:!tperiell.Ces ofa layman; However, the fact that an~ert opiriionisgiV'en does notmean-that.sueh.opiniou isbil1dingupoll tb.ejury or that thejury is obligated toaccept the expsl.'t'a opinion as-to what the facts are. It lathe f)l"oviIWeof the jury to det~rn~i't!.etl:t.ecredibility and weight that should he given to an expert opinion in the lighto£ all the evidence. Although the jury lJli!l.y not arbitrarily disregard the testimony of an ex-pert ~tneea,if the jury finds that h).sopinion is ll(~tbnsE)don the f~Ct8, Or is <:ontl'ary to or outweighed. by the. evidence, or thatthel'easol'ls ~VeIl in support of the opinion are not;. !lound, such' opin~on maybe disregarded.

E. ELEMENTS OF THEOFJj'ENSE [pp.16~18J

I will ucw ·su.mJ!!lLl'}zethe_eBsentialelemenw of the offe~s_ech~geq in ~his caas.iIn order to convict the defe:nde.nt~ in thiscaae. ofconsp:il<acyto Violate the ·FC:PA [Foreign Cprl'upt.P:cacticea f..:ct), the governme:nt '. m'1).st pro'\'e beyond a reasonable doubt all of the folloWing things as tohfrn.:

First, the governmel'lt)l1ustpro'le beyond a reasonable doubt that a single. coptinu:ing conspiracy was. wiUf1.llly formed and was • watSllg.· at or about. December 19, .1977, the effective date of. the 'FCPA, That is,. iii· ., conspiracy by a dronesticccmcern and others tomElkepayments of :money to two ofiicialsof ~. foreign .. gQV'ernment~lnatrumentalitythereQf! for the corrup~ p,urp088 ofin4UCillg them to usethe4'inf.lu.ence With .the foreign govemmBllt orinst!"IXmeneslity fuer.eof,. toe-Ward gascompri:lssionequip· ment contracts to thedefeniliplt or hiscoconflpirators, .. and thatinreratate coIl1Plel:'cew!l£lneed,jn i'urtherance of that oonspitacy: It is Bufncientlfthe evidencashows beyohd El. reasonable doubt that the, offenaecharged was cOnirnitte4dU:ringthetlme brreasonablynear ·thetin;(eaJleged lithe indictment.

Second, before you. .mllyfind the defendant .. guilty Of con8pirlt~Y',the gOVernment rnusb: prove beyond a.l'sasonabledo:ubt t1~at the d.et'endari~ became, a member of the cons,Piiacy charged in the . indictment, a sih&le continuingconspi't'scy to make Jlaymentsof money to two Peme)::officlals

,forehe purpose. of i!iducing them. to use their influence with Psmex to award gas compression equipmentcontl-acls to his Elmployer or ~he employer ot hiscqconspil.-ators during the period l~ve deacribedto you.

Third, the GoverlUnElnt mustprov'~beyond a reasonable dOubttb.a.t the defe~dant knowingly, v61ut).tarily,· and intentionally· be9lt'ine a. :member of theallegecf conspiracy.

Case 4:09-cr-00629 Document 58-1

Filed in TXSD on 04/18/11 Page 5 of 6

78

, "\'.

:Fourth, the goVernment ·liiUst prove beyoXld· a re$.$onablenoubt that one of the coconapiratotB. th~l'eafter knowingly co:zmnitted at least one of the .o'VElrt ac~s oh8.l'gedlnthe indictment a.~ orabOllt the tb:n.e and plated all(;ged.

Fifth,the government must PtPV~ beyond areasona.ble d.oubt~hat such oyert act waaknowinglYUllJ.ertaken :in .furtherance of 8omeobjeet; or purpOse of theCOD.Sp4'8cy described in tneindictment.

AP.. I further ·deffueeaehof theseeleix\entafo:ryoll futhese.inetru()tionsJ you. should remelllbertnatthe Government-hasthebm:den ofpr()'V.ing each and every one of these elelnents beyond a reaso:!lahledoubt as to the defendant. Even if only one. of theaeeiementsiStiQt proved beyond a reasonable doubt as to the defendants the law l'equireatbatyou llnd the defe))dant.notgUilty .

AIl 'UserJ jll. tl:Ieae inatrtlctIons: (pp. 21-Z2)

TM t~.r~ I!toreignoffichu" mean:sMyo££icer or emJllqyee oi'aforeign gover:m:nentcn: any dell~l:l,~,.agency,.·Ol'llwt~lllelitality.thereof,or·.aij porsonacting. jn~offieial·· capacity-. £0'('. 0),- OIl behalf .ofauy BucI:1.govern. men.t or depal'!;ment,~genajor instrumentality; Such term does not inolude any ~ployee of a foreignguvernmellt or any depattmentJ agency, or il'l.5trumentality thereof' whose duties are .esse~tiru1y IXlinisteri.a1 oot clerical.

The t.ei'in itinstrumentaliuy ofa foreign government" means any e~tity ~reated, owned, ot' contl·olIedhy. a fOl:'elgtJ. government toac.hievea governmental pU'rpoae·o)) t'ullctjOl:\.

Tho tSl'lJ1"intel'state c0ml<lerce" ll1eana tJ:ade, COl.nlllel'Ce, ttanspor;tation. or communication among the several States ox be~Wl.genan.y foreign COllutJ:y and an,y Stat{:) orbe~ween any State an4 im,y place OI'8hip . outside tllereoLSuch . Wl:!ll'includeatheintrasta.teuae of (A) a telephone or otller juterstate meanao~ coml'rl.~nlcation,. or . (B) any other intel:'state in:$1illien. talit)'.

'.'l'h.etel'nl.."d<mle$ticcQl:.I.cern" lnellllil. eA} .anYlndividua:l who is.a citizenl· n~tipna.ll . (ltreBidei1t qft4e United State$; or (B) .: any .. corporatio~, pal'tnership;associatlon •. joint·stockcompal3:Y, bU8ilI~8Et·truSt, urllnco:qlorat. edol;'garuzatiou, OrB()~e .prqprieto1'8'hipwhichhas itS principal place of business. in the. U!\tietL· Statfls, 0),' whlchis organized uhdei:- the lawa·(Jf.11 State of the United Sta.teaoraterrltorYfPoSseai3iOlI, or cOlliroonweaIth of

the UnitedSta~eJS. .

Thetel'Ill "cpl':ruptly. o:rwith corrupt 'lritetit" means for an evil Or, wiclc$dpurpose.

Thus, the Govwmmentl!1u$tpl'ovebeyond.afeasonable·dol,lpbthat Mr.

Ignacio DeLeon andiorMr. JeausOhavarl'ia were in facUo):eignoffioiala as I de.fined th:atterm. for you; and that Pemex waa in '.fact.8 foreign goverllmfjnt ormstrumentallty thereof;.ll.lldthatJnterstat.e eommsrcewas used-in; fnrtheral1.c~ oUhe scheme to bribe thoBe foreign offidala;and tha.t; Crawford Enterprises, Inc. is-a domestic concern.ae I de£inedthat term for

. .. ir . "

(-','"_,, -,'

Case 4:09-cr-00629 Document 58-1 Filed in TXSD on 04/18/11 Page 6 of 6

. C~TER rr 'FORl!:lGl>! LAwn, Olm COURTS

79

you. I.fyou do not find that ea('.h of the facta hasbeen proved by th~. evid6;tlCe beyonde. reasonable douht,tMn you rn,usta.cquit the dl"iendant.

NOTE

See also, fOl.' background.and JUl'ther 'developments, United States v, Internatiollal H'sl'ITester Co., 720 FJ!d 4:18 (5th Cid983); :rv.tcLean v, Tntetne.~ tiolie.l Barveste:rCo., 817 F.2d 1~14 (5th Cir.1987).

F'.nnnmer v. Hilton :Hotels Internation.a1,JJ:)c. ff~w Y()rkSllpremeCOl!rl; Tril!l (tenn.,lGltgi> County,1969.

60 MUle.2d.840, 80~ N,¥.S.2d 8.86. .

Bill MANGANo,J. In bhia negligence actio:n the.'juryhl'ls ret\lrne:d a verdict. in favor of the defendant, and thecourthas been asked by the plaint,iff to .set aside that; dete~-rninationa.t)d. grant a. new' trial

(The ophrion then. outlines the evidence received at thetriru., which.

Showed that plaintiff; while a registered guel>t at defendant's hotel in London, England, 'l'l'as.thevictiro ofanaccident, As he was talringashower, plaintiff slipped andfell in the bathtub,andas a result B)lfferedgerio'lls injuries, Plaintiff conte:ndsthat the accident was-due. to defendant's failure topl'ovide a rt).bber$hower-.mat(altho1,lghplaintiffhada.sks(Lfor Buena. mat),a.ndto qerfiain defectain the facilities prov.ided byth.e defen4ant.]

'" A serious .quj3stion of this¢otu't's jurisdiction over this defendant W3a raised !U1d ultimately resolved in favol' ofjmisdiction by the Courtef , Appea4 (19 N.Y.2d 533, 281 N.Y..S.2d41, 227 N.E.2d851).

...The motion to set aside the judgment entered upon thejulj"s verdictlS based; upon two group,ds. The first is that the coUrt failed to chargeprope;rly.the relevant provisions of EngHah law, partl.cularJ.;ythe Occupiers' LiabiJityAct of 1957 (5 and 6 El1z. 2, c. 31), and second, that

certain photographic evtdl'l:nce wasimpropei:ly exclud(;!d. .

[The cou.rt found both oftheae.il:rgtunehtStope withoutinsrit.J

During the course of the court'a research. on theQccupie.~a'Liabilio/ Act, the court becar,nea:ware of @ issuel1{)h raise~ by plaintilrariounBsLIt kth~t conh'ibutorynegligel1ce ianota. defensato .thiila1ltlon under English iaw .. That Cbl1ntry has adopted. a comparative .negllgellce statute which reduces a plaintiff'.sdamages t.O the extent that Ill~ntiffca:nhesaid to be responsible for hia ownfnjuries .. The statute-enti(;ledthe LaW Reform (Contributory Negligence) Act (8 and gGe!) .. VI.,e. 28)~bec:am6Iaw in 1945, and providesin perlinentpart (S.l) as.follows:

(I) where any person suffers • damage as the result partly of hi$own fault alld~artJ,y ofth~ fault of any other person orpers0rlB1 a. clatm in l.'espect .ofthat damage shall not be defeated by reason ~f the fault of the person su:fferingthe damage, but the damages recoverable in respect thereof shall be reduced to suchextentllS thecourtthin,lts just

Case 4:09-cr-00629 Document 58-2 Filed in TXSD on 04/18/11 Page 1 of 3

Exhibit 2

Case 4:09-cr-00629 Document 58-2 Filed in TXSD on 04/18/11 Page 2 of 3

UNITED STATES, Libellant, VS. TUG PEMEXXV, IN REM ••• , 1960 WL 99004 (1960) 1960 A.M.C. 896

1960 A.M.C. 896

American Maritime Cases

UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

UNITED STATES, Libellant, vs.

TUG PEMEX XV, IN REM AND BARGE PEMEX 559, IN REM, AND PETROLEOS MEXICANOS, IN PERSONAM, AND THE HOUSTON PILOT BOAT NO.1, IN REM, Respondents.

IN ADMIRALTY - 2067January 14,1960

JURISDICTION - 135. Sovereign States, Sovereign Immunity.

Under the current executive policy adhering to the "restrictive theory" of-sovereign-immunity, a-governmentowned corporation, engaged in the production, refining, and distribution of petroleum, and its vessels are not entitled to the defense of sovereign immunity in the courts of the United States.

JURISDICTION

1423. Foreign Government

Merchant Vessels.

Vessels owned and operated by a Government-owned corporation, engaged in the production, refining, and distribution of petroleum products, are not in the possession and ownership of the foreign sovereign,' and, accordingly, are not entitled to the defense of sovereign immunity in the courts of the United States.

Attorneys and Law Firms

CARL C. DAVIS and ALAN RA YWID, Attys., Admiralty and Shipping Section, Dept. of Justice, for Libellant.

E. V. GREENWOOD (FULBRIGHT, CROOKER, FREEMAN, BATES & JAWORSKI, on Brief), for Respondent.

STATEMENT.

This suit, brought against Petroleos Mexicanos, a Mexican government-owned corporation, and its vessels Tug Pemex XV and Barge Pemex 559 seeks damages of $50,000.00 arising out of a collision on February 12, 1958, between the Pemex vessels and a United States Coast Guard vessel in Galveston Bay, Texas, an area

within the territorial waters of the United States. At the time of the collision Pemex XV was towing astern the Barge Pemex 559 on a voyage from Houston, Texas, to Tampico, Mexico, Transporting a cargo of steel drill pipe purchased in the United States and for use in one of Pemex's new installations.

The respondent Petroleos Mexicanos is a corporation which was created by executive order of the Mexican Govemment in 1938, and '1:897 is engaged in the production, refining, and distribution of petroleum products.

Petroleos Mexicanos appeared specially and excepted to jurisdiction claiming sovereign immunity on the ground that the corporation was a branch of the Mexican Government, a friendly foreign sovereign, and as such, is not amenable to suit in the court of the United States. The United States answered the exception to jurisdiction asserting that Petroleos Mexicanos and its vessels are not entitled to sovereign immunity, since the vessels at the time of the collision were not in the ownership or possession of the Mexican Government but ,were: owned and operated by the independent corporation Petroleos Mexicanos, and, moreover, the granting of sovereign immunity is governed by the current executive policy, which adheres to the "restrictive theory" of sovereign immunity, i.e., distinguishes between vessels engaged in a public and governmental function and vessels employed in private commercial activity, allowing immunity only in cases in the public, governmental category."

BEN C. CONNALLY, D.J.:

INTERLOCUTORY ORDER In Rem AND In Personam.

The above-entitled cause, having come on regularly for decision upon motion of respondent Petroleos Mexicanos for an order of dismissal based on allegation of sovereign immunity, and the Court having considered said motion together with the affidavit of counsel for respondent, the attached documents submitted· by the respective parties, as well as the briefs submitted on behalf of libellant United States and respondent Petroleos Mexicanos, and being otherwise fully informed of the matters involved.

And, after due deliberation, the Court having entered its finding on the Motion Calendar on December 30, 1959,

NOW, THEREFORE, IT IS HEREBY ORDERED that the motion of respondent Petroleos Mexicanos to dismiss on the basis of sovereign immunity is denied, and

IT IS FURTHER ORDERED that respondent Petroleos Mexicanos is directed to file its written claims to the Tug Pemex XV and the Barge Pemex 559, and plead to the libel herein by February 15, 1960.

\!'/s5tl2\vNexf@ 2011 Thomson Reuters. No claim to original U.S. Government Works.

1

Case 4:09;.cr-00629 Document 58-2 Filed in TXSD on 04/18/11 Page 3 of 3

UNITED STATES, Libellant, VS. TUG PEMEX XV, IN REM ... , 1960 WL 99004 (1960)

,------------

1960 A.M.C. 896

Done at Houston, Texas, this 14th day of January, 1960.

Parallel Citations

[NOTE: The claim stated in the libel for collision was settled. - EDS.]

1960 A.M.C. 896

Copyright (c) 1960 by American Maritime Cases, Inc.

Footnotes

a1 See State Department Bulletin which immediately follows. - EDS.

End of Document

© 201 i Thomson Reuters, No claim to original U,S. Government Works,

Westl2v;,Ne<;.;!' © 201'\ Thomson Reuters, No claim to original U.S, Government Works.

2

Case 4:09-cr-00629 Document 58-3 Filed in TXSD on 04/18/11 Page 1 of 5

Exhibit 3·

Case 4:09-cr-00629 Document 58-3

Filed in TXSD' on 04/18/11 Page 20f 5 4100Spring VdlleyRd., SUite 203 Dallas, IX 75244 Telephone: (214j-256-9222 Fax: (214h256.;9301 www.akorbi.com

April 18, 20U

CERTIFICA.TE OF AC0URACY

ThetUidersignedcertify that-to the best of bur knowledge, the translation provided by Akorbi Language C(jllsultinginto .El1glish, of the Spanish document provided by Berg &Androphyistrtie, complete, and aC,curate. AHtrali~lations haNe been petfo011ed following our ISO 9001:20QO certified qua.lity assurance pl'ocess tMt in.c]ude~pr6fessiol1atartd·quali:fied trans lators,ed1tol's.an'dpr,oofrea.dets ..

TlIiscettification.pertai:ns totbef611owiug:

Instituto de.lnyestig~ciones.·Jul1idicas.2ENGDISII_;FINAL Institutode·In.vestiga.ciones Juridicas·(2)·ENGLISH_FINAL.

Akotl)i Jobnulilber:BYOOOlT0417.

Al1tllorizedSignafure

STA.TE OF TEXAS .J)ALLA.S·COUN'I;Y .

Tilisinstrtlment was·acknOv,rleQg<hd,t>eforeme·on April 18th, 201.1 .·by].a¢heICagle· of Ela.hi . EllterfJiises, Inc',dJja,:t\l<orbi,.·aTexas··Corpo1'ationon· behalfofsaid·corporation·. .

I

Case 4:09-cr-00629 Document 58-3 Filed in TXSD on 04/18/11 Page 3 of 5

L~···'(-' h ·L

H ;,A

. '.JLJ .J,.t.. R ..

Further reflection leads this Court to abandon the opinion that the Federal Electricity Commission is an authority for the purposes of amparo proceedings regarding the determination and collection of electrical power supply services, due to the fact that: 1) the relationship between the parties originates from a meeting of minds whereby the service provider and the user acquire reciprocal rights; this is governed by private law, which regulates the relationship between the provider and the individual; 2) the legal relationship existing between the parties is not that of an authority and the governed (superordinate/subordinate), but rather a relationship of coordination between the decentralized agency and the individual service user; and 3) shutting off the electrical power supply due to noncompliance by the user does not convert the relationship of coordination into that of

superordinate/subordinate; it merely implies the possibility that the party being affected may discontinue the contract service, exercising the legitimate right to suspend the performance of their obligation to which such party is entitiedunder anycontractuai relationshipwhen the other party faiis to comply (as it happens in private law contracts, in matters of insurance, telephone services, credit cards and others), without this entailing an enforcement procedure intended to collect the debt through coercive mechanisms (e.g. seizure of property), for which it would be necessary to

turn to the ordinary courts of justice. In that sense, not every action taken by a public administration agency or the application of contractual clauses suspending obligations in the event of noncompliance by the other party constitute an act of authority for the purposes of amparo proceedings, but rather only those that entail the exercise of administrative power, which grants the authority some attributes of such magnitude that they trigger a superordinate/subordinate relationship in that matter. In that sense, the receipt notice of electrical power supply issued by the Federal Electricity Commission, even when containing a service disconnection warning, is not an act of authority for the purposes of amparo proceedings.

Code: 2a.!J., No.: 112/2010

Contradiction of opinion 318/2009. Among those upheld by the Sixteenth Circuit Second Associate Court of Administrative and Labor Matters, the Twenty-First Circuit First Associate Court of Criminal and Administrative Matters, the Twenty-First Circuit Second Associate Court of Criminal and Administrative Matters, and the Ninth Circuit First Associate Court. October 7,2009. Majority of four votes. Dissenting judge: Genaro David G6ngora Pimentel. Court opinion written by Judge: Margarita Beatriz Luna Ramos. Clerk: Fernando Silva Garda.

1 Appeal for relief under the Constitution, with no direct equivalent in the American judicial system.

Case 4:09-cr-00629 Document 58-3 Filed in TXSD on 04/18/11 Page 4 of 5 Case law opinion 112/2010. Approved by the Second Chamber of this High Court in private session on August eighteen, two thousand and ten.

Type: Case Law by Contradiction

Subjects:

Administrative Law. Procedural Law.

Copyright, (C)2011 IIJ-UNAM Institute for Legal Research of UNAM2

Circuito Maestro Mario de la Cueva sin, Ciudad Universitaria, CPo 04510, Mexico, D.F.

Ph. (52) (55) 56-22-74-74, Fax. (52) (55) 56-65-21-93

2 National Autonomous University of Mexico

Case 4:09-cr-00629 Document 58-3 Filed in TXSD on 04/18/11 Page 5 of 5

INSTITUTE FOIt LEGAL RESEARCII

Upon further reflection, this Second Chamber concludes that shutting off or suspending the contracted flow of electrical power due to lack of timely payment cannot be considered, on its own, an act of authority for the purposes of amparo proceedings. This is because, when dealing with contractual relationships, it is common to agree that the party injured by the other party's noncompliance shall cease to perform its obligations. Generally speaking, contracts are governed by the parties' will and by bilateralism whereby one party's noncompliance triggers the other party's right to set aside their own obligation as long as the noncompliance with the meeting of minds persists. Therefore, disconnection of the electrical power supply by the Federal Electricity Commission does not convert the contract relationship between the user and said agency into an act of authority.

Code: 2a./J., No.: 113/2010

Contradiction of-opinion 31812009. Among-those upheld-by the Sixteenth Circuit Second Associate Court of Administrative and Labor Matters, the Twenty-First Circuit First Associate Gourt of Criminal and Administrative Matters, the Twenty-First Circuit Second Associate Court of Criminal and Administrative Matters, and the Ninth Circuit First Associate Court. October 7,2009. Majority of four votes. Dissenting judge: Genaro David G6ngora Pimentel. Court opinion written by Judge:

Margarita Beatriz Luna Ramos. Clerk: Fernando Silva Garcia.

Case law opinion 113/2010. Approved in private session by the Second Chamber of this High Court on August eighteen, two thousand and ten.

Type: Case law by Contradiction

Subjects:

Administrative Law. Procedural Law.

Copyright, (C)2011 IIJ-UNAM Institute for Legal Research of UNAM2

Circuito Maestro Mario de la Cueva s/n, Ciudad Universitaria, CPo 04510, Mexico, D.F.

Ph. (52) (55) 56-22-74-74, Fax. (52) (55) 56-65-21-93

1 Appeal for relief under the Constitution, with no direct equivalent in the American judicial system. 2 National Autonomous University of Mexico

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