siriwan update
TRANSCRIPT
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ANDR BIROTTE JR.United States AttorneyROBBERT E. DUGDALE
Assistant United States AttorneyChief, Criminal DivisionJONATHAN E. LOPEZ (SBN 210513)
Deputy Chief, Asset Forfeitureand Money Laundering SectionCriminal DivisionUnited States Dept. of Justice
1400 New York Ave, N.W.Bond Building, Room 2200Washington, D.C. 20005Telephone: (202) 307-0846Facsimile: (202) 616-2547Email: [email protected]
Attorneys for PlaintiffUNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
JUTHAMAS SIRIWAN,aka the Governor, and
JITTISOPA SIRIWAN,aka Jib,
Defendants.
)))))))))))))
CR No. 09-81-GW
GOVERNMENT'S SECOND SUPPLEMENTALBRIEF IN OPPOSITION TODEFENDANTS MOTION TO DISMISS RE:INTENT TO PROMOTE AND ORGANICJURISDICTION
Hearing Date: November 29, 2012Hearing Time: 8:30 a.m.
______________________________)
Plaintiff United States of America, through its counsel of
record, hereby submits its second supplemental brief to theCourt. The governments second supplemental brief is based upon
the attached memorandum of points and authorities, the files and
records in this matter, including, the governments Response in
opposition to defendants motion to dismiss the Indictment (DE
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67) and the governments subsequent filings, as well as any
evidence or argument presented at any hearing on this matter.
DATED: November 15, 2012 Respectfully submitted,
ANDR BIROTTE JR.United States Attorney
ROBERT E. DUGDALEAssistant United States AttorneyChief, Criminal Division
JAIKUMAR RAMASWAMYChief, Asset Forfeitureand Money Laundering SectionCriminal DivisionUnited States Dept. of Justice
/s/JONATHAN E. LOPEZDeputy Chief, Asset Forfeitureand Money Laundering SectionCriminal DivisionUnited States Dept. of Justice
Attorneys for PlaintiffUNITED STATES OF AMERICA
ii
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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 hearingon defendants Motion to Dismiss on November 29, 2012.
Specifically, this filing will (1) update the Court on the status
of the governments 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 furtherevidences before completing the investigation in order tobring both offenders to court to be formally charged.Hence, we must postpone the extradition process of bothpersons 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 governments position that the above response does
not constitute a denial of the governments extradition requestor an assertion of sole jurisdiction over this matter. Attached
as Exhibit B is a letter from the Department of State confirming
1 The English translation was completed by a United StatesEmbassy employee in Thailand.
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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 Thailands 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 Congresss 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. See DE 67 at 35-36; DE 84 at 9-13.
B. Congressional Intent With Regard to the FCPA and theProsecution of Foreign Officials for Non-FCPA Crimes
One issue that appears to concern the Court is whether a
foreign official can be charged with money laundering with the
FCPA as a specified unlawful activity, when the foreign official
cannot be charged with a violation of the FCPA or conspiracy to
violate the FCPA.4 The basis of the Courts concern seems to
rely on United States v. Castle, 925 F.2d 831 (5th Cir. 1991).
As discussed further below, the Castle opinion is based on a
2 United States v. Richardson, 580 F.2d 946, 947 (9th Cir.1975).
3 United States v. Yousef, 327 F.3d 56, 92 (2nd. Cir. 2003).
4 Defendants arguments in this area do not apply todefendant Jittisopa Siriwan.
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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 distinctoffenses - 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 GebardiPrinciple and Therefore Necessarily Limited toFCPA 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. This became known
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
conduct of the transporter, but not the conduct of the womanherself.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.
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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 andpunish 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 Id. at 123.
7 Castle, 925 F.2d at 833 (emphasis added).
8 For example, FCPA violations do not require financialtransaction involving the United States, as money launderingviolations do.
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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 FCPAconspiracy 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 Thereason that Bodmer did not
dismiss the money laundering charge was that Gebardiapplies 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 FCPAs 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 FCPAs structure. There are no statements by Congressconcerning its intent that bribe receiving foreign officials
9 Id. at 181.
10 Id. at 190-91.
11 Id. at 190 n. 15.
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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 theFCPA, 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 FCPAs 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
statutes 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. In passing this provision, Senator Kerry
explained,
By expanding the definition of Specified UnlawfulActivity to include a wide range of offenses . . . weare confirming that our money laundering statutesprohibit anyone from using the United States as aplatform to commit money laundering offenses againstforeign jurisdictions in whatever form that they occur.It should be clear that our intention that the moneylaundering statutes of the United States are intended
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to insure that all criminals and terrorists cannotcircumvent our laws.12
A foreign bribery violation necessarily involves a foreign
official, and Congress was emphatic that the money laundering
statutes reach as broadly as possible.
In addition, Congress has subsequently expressed its support
of money laundering prosecutions against foreign officials.
Congress described the inclusion of foreign bribery as a
specified unlawful activity as having, for the first time, made
the knowing acceptance of foreign corruption proceeds a money
laundering offense.13 Congress further explained that this
provision was one component of the anti-corruption battle
against politically powerful foreign officials, their relatives,
and close associates [who] utilize U.S. financial institutions to
conceal, transfer, and spend funds suspected to be the proceeds
of corruption.14
As a consequence, it is clear that Congress intended that
money laundering offenses be permitted against foreign officials
who accept bribes in violation of foreign bribery law and use
U.S. financial institutions in doing so. It would be
12 Proceedings and Debates, USA Patriot Act of 2001, 147Cong. Rec. S10990-02 (Oct. 25, 2001), 2001 WL 1297566 (emphasisadded).
13 United States Senate Permanent Subcommittee onInvestigations, Committee on Homeland Security and Governmental
Affairs, Majority and Minority Staff Report, Keeping ForeignCorruption Out of the United States: Four Case Histories at 9 (Feb.4, 2010) available athttp://www.hsgac.senate.gov/subcommittees/investigations/hearings(emphasis added).
14 Id.
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inconsistent for Congress to intend to make these same bribe-
receiving 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
officials who accept bribes are not exempt from money laundering
prosecutions where the underlying specified unlawful activity is
akin to foreign bribery, despite the FCPAs exemption. In United
States v. Lazarenko, Lazarenko was extremely powerful as the
governor of the Dnepropetrovsk region of the Ukraine and
required businesses to pay him fifty percent of their profits in
exchange for his influence to make the businesses successful.
564 F.3d 1026, 1030 (9th Cir. 2009). Lazarenko was charged with,
among other offenses, money laundering with extortion as a
specified unlawful activity. Id. at 1038.
Because the extortion was the equivalent of international
bribery, Lazarenko argued that he was exempt from prosecution
under the money laundering laws as a foreign official on the
receiving end of a bribe, as the FCPA exempted that class of
offenders from prosecution.15 The Ninth Circuit, acknowledging
the FCPAs exemption of foreign officials, the holding in Castle,
and the resemblance of Lazarenkos actions to bribery,
15 Lazarenko, 564 F.3d at 1038; Def. Br. 2007 WL 2302047.Notably, both Lazarenko and the Ninth Circuit appear to acknowledgethat, after the Patriot Act was passed in 2001, foreign officialswho engage in transactions involving proceeds of foreign corruptionare squarely liable under the money laundering statutes. Id.
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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. In
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
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.
16 See Plea Agreement, United States v. Antoine, No. 09-cr-21010, DE No. 135 (S.D. Fla. Mar. 12, 2010); Plea Agreement, UnitedStates v. Joseph, No. 09-cr-21010, DE No. 706 (S.D. Fla. Feb. 8,2012).
17 See Verdict, United States v. Duperval, No. 09-cr-21010,DE No. 757 (S.D. Fla. Mar. 13, 2012).
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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 exemptedfrom FCPA prosecution. These cases demonstrate an important
point: 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 Courts 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, wasindicted for conspiracy and substantive violations of arms export
control violations, as well as with international promotion money
18 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).
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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 theIndictment). Kuoks 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 governments
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 Kuoks 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. Id. at
*2-3. 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, whetherconduct 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 courts
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
19 2012 WL 425240 at *2-3 (N.D. Ga. Feb. 9, 2012)(citingUnited States v. Belfast, 611 F.3d 783, 813 (11th Cir. 2010) andUnited States v. Yakou, 428 F.3d 241, 252 (D.C. Cir. 2005)).
20 The court also cited Fed. R. Crim. P. 12(B)(2) statingonly those defenses that the court can determine without a trial ofthe general issue may be raised by pretrial motion.
21 Indictment at 19,25, Overt Act #2.
22 Indictment at 18.
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Juthamas Siriwan, made several trips to the United States.23
Defendants attempts to claim that their actions do not
constitute conduct24 in the United States ignore well-
established case law. In the Ninth Circuit, for example, adefendant 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
23 Indictment at 25. The government proffers that defendantJittisopa Siriwan also made several trips to the United States insupport of their scheme. Regardless, the ability of the governmentto prove that conduct occurred in the United States is a trialissue, not one relating to the sufficiency of the indictment.United States v. Buckley, 689 F.2d 893, 897-99 (9th Cir. 1982).
24 DE 87 at 12.
25 See also United States v. Gotti, 459 F.3d 296, 335 (2dCir. 2006)(person who accepts a transfer of cash participates inthe conclusion of the transfer, and therefore conducts thetransaction).
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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 extraterritorialjurisdiction, 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,
ANDR BIROTTE JR.
United States Attorney
ROBERT E. DUGDALEAssistant United States AttorneyChief, Criminal Division
JAIKUMAR RAMASWAMYChief, Asset Forfeitureand Money Laundering Section
United States Dept. of Justice
/s/JONATHAN E. LOPEZDeputy Chief, Asset Forfeitureand Money Laundering SectionCriminal DivisionUnited States Dept. of Justice
Attorneys for PlaintiffUNITED STATES OF AMERICA
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