u.s. v. duperval (duperval appellate brief)

NO. 12-13009-CC

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff/appellee,

v.

JEAN RENE DUPERVAL, Defendant/appellant.

On Appeal from the United States District Court for the Southern District of Florida

INITIAL BRIEF OF THE APPELLANT JEAN RENE DUPERVAL

Respectfully submitted, LAW OFFICES OF JOHN E. BERGENDAHL Counsel for Jean Rene Duperval 25 S.E. 2nd AVENUE, SUITE 1105 MIAMI, FLORIDA 33131 TELEPHONE NO. (305) 536-2168

THIS CASE IS ENTITLED TO PREFERENCE (CRIMINAL APPEAL)

Case: 12-13009 Date Filed: 02/04/2013 Page: 1 of 88

ii

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

United States v. Jean Rene Duperval

Case No. 12-13009-CC C1 of 2

Appellant, Jean Rene Duperval, files this Certificate of Interested

Persons and Corporate Disclosure Statement, listing the parties and entities

interested in this appeal, as required by 11th Cir. R. 26.1.

Bergendahl, John E., trial and appellate counsel for

Appellant Jean Rene Duperval

Duperval, Jean Rene, Defendant/Appellant

Fagan, Aurora, counsel for Appellee

Ferrer, Wilfredo A., counsel for Appellee

Gerrity, Kevin B., counsel for Appellee Grove, Daren, counsel for Appellee Heller, Kirby, counsel for Appellee Koukios, James M., counsel for Appellee

Martinez, Hon. Jose E., Trial Judge

Montiero, Courtney, co-counsel for Defendant at Trial Mrazek, Nicola J., counsel for Appellee


iii

United States v. Jean Rene Duperval Case No. 12-13009-CC

C2 of 2

Republic of Haiti, victim

Schultz, Anne R., counsel for Appellee Telecommunications D’Haiti, victim


iv

STATEMENT REGARDING ORAL ARGUMENT

The Appellant respectfully submits that oral argument is necessary to

the just resolution of this appeal and will significantly enhance the decision

making process.


v

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS .................................................... C-1

STATEMENT REGARDING ORAL ARGUMENT ...............................................iv

TABLE OF CITATIONS ....................................................................................... viii

STATEMENT OF JURISDICTION ........................................................................ xv

STATEMENT OF THE ISSUES ............................................................................... 1

ISSUE I ........................................................................................................................ 29

THE TRIAL COURT’S FAILURE TO MAKE ANY INQUIRY AS

TO WHETHER THE JURY HAD BEEN EXPOSED TO

EXTENSIVE, ONGOING, HIGHLY PREJUDICIAL MID-TRIAL

PUBLICITY WAS AN ABUSE OF DISCRETION AND DEPRIVED

MR. DUPERVAL OF HIS SIXTH AMENDMENT RIGHT TO BE

TRIED BY A FAIR AND IMPARTIAL JURY.

ISSUE II ....................................................................................................................... 37

THE TRIAL COURT ERRED IN NOT CHARGING THE JURY IN

ACCORDANCE WITH MR. DUPERVAL’S PROFFERED

THEORY OF DEFENSE INSTRUCTION.

ISSUE III ...................................................................................................................... 41

THE GOVERNMENT’S SUBSTANTIAL INTERFERENCE WITH


vi

A POTENTIAL ESSENTIAL DEFENSE WITNESS, DEPRIVED

MR. DUPERVAL OF HIS FIFTH AMENDMENT RIGHT TO DUE

PROCESS OF LAW.

ISSUE IV ..................................................................................................................... 47

THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A

REASONABLE DOUBT THAT HAITI TELECO WAS A

GOVERNMENT INSTRUMENTALITY AND THAT JEAN RENE

DUPERVAL WAS A FOREIGN OFFICIAL AS REQUIRED TO

PROVE THAT A VIOLATION OF THE FOREIGN CORRUPT

PRACTICES ACT GENERATED PROCEEDS OF A SPECIFIED

UNLAWFUL ACTIVITY – A NECESSARY PREDICATE FOR

THE CONVICTIONS ON THE MONEY LAUNDERING

CONSPIRACY AND SUBSTANTIVE MONEY LAUNDERING

CHARGES.

ISSUE V ....................................................................................................................... 62

THE 108 MONTH SENTENCE IMPOSED BY THE DISTRICT

COURT WAS BOTH PROCEDURALLY AND SUBSTANTIVELY

UNREASONABLE.


vii

ISSUE VI ..................................................................................................................... 71

WHETHER CUMULATIVE ERROR COMPELS REVERSAL OF

THE DEFENDANT'S CONVICTIONS.

STATEMENT OF THE CASE .................................................................................. 3

Course of Proceedings and Disposition in the District Court ......................... 3

Statement of Facts ........................................................................................... 6

Standards of Review ...................................................................................... 24

SUMMARY OF THE ARGUMENTS .................................................................... 27

ARGUMENTS AND CITATIONS OF AUTHORITY .......................................... 29

CONCLUSION ........................................................................................................ 72

CERTIFICATE OF COMPLIANCE ....................................................................... 73

CERTIFICATE OF SERVICE ................................................................................ 73


viii

TABLE OF CITATIONS

Cases:

Central Bank of Denver v. First Interstate Bank 511 U.S. 164, 176-77, 114 S.Ct. 1439, 1448-49 (1994) ..................................... 56 Compare U.S. v. Achille

277 Fed.Appx. 875 (11th Cir. 2008) ................................................................... 68 Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926) ..................................................................................... 58 Demps v. Wainwright

805 F.2d 1426 (11th Cir. 1986). .......................................................................... 45 Dole Food Co. v. Patrickson 38 U.S. 468, 475-76, 123 S.Ct. 1655, 1660-61 (2003) ....................................... 57 Gall v. United States,

552 U.S. 38, 51 (2007) ........................................................................................ 25 Hall v. American National Red Cross, 86 F.3d 919, 921 (9th Cir. 1996) ......................................................................... 52 Irvin v. Dowd,

366 U.S. 717, 81 S.Ct. 1639 (1961). .................................................................... 33 Kolender v. Lawson,

461 U.S. 352, 357 (1983) .................................................................................... 58 Lamb v. Phillip Morris, Inc., 915 F.2d 1024, .................................................................................................... 47 Mathews v. United States,

485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) ....................................... 37


ix

Norfolk & Western R. Co. v. Train Dispatchers 499 U.S. 117, 129, 111 S.Ct. 1156, 1163-64 (1991) ........................................... 51 Oswald v. Bertrand,

374 F.3d 475, 482 (7th Cir. 2004) ........................................................................ 33 Reno v. Koray,

515 U.S. 50, 65, 115 S.Ct. 2012, 2029 (1995) .................................................... 57 Rita v. United States,

551 U.S. 338, 356 (2007) .................................................................................... 69 Robinson v. Shell Oil Co., 519 U.S. 337, 341-42, 117 S.Ct. 843, 846-47 (1997). . . . . . . . . . . . . . . . . . . . .67

Rose v. Long Island R.R. Pension Plan, 828 F.2d 910, 917-18 (2d Cir. 1987) ................................................................... 55 Small v. United States, 544 U.S. 385, 396-98 (2005) ............................................................................... 50

Territory of Alaska v. American Can Company, 358 U.S. 224 (1959) ............................................................................................ 53 Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed 2d 654 (1960) ............................................... 33 United States v. Aragon,

962 F.2d 439,446-47 (5th Cir. 1992) ................................................................... 35 United States v. Barrie,

267 F.3d 220 (3d Cir. 2001) ................................................................................ 65 United States v. Campa,

529 F.3d 980, 1016 (11th Cir. 2008) .................................................................. 66 United States v. Carson, No. SACR 09–00077–JVS, 2011 WL 5101701, *5


x

(C.D. Cal. May 18, 2011) ........................................................................... 48, 52, 53 United States v. De La Mata,

266 F.3d 1275, 1298 (11th Cir.2001) ................................................................. 24 United States v. Dohan, 508 F.3d 989, 993 (11th Cir. 2007) .................................................................... 26 United States v. Dunnigan,

507 U.S. 87, 94, 113 S.Ct. 1111, 1116, 122 L.Ed.2d 445 (1993)....................... 67 United States v. Egge,

223 F.3d 1128, 1133-34 (9th Cir. 2000) ............................................................. 65 United States v. Gonzalez

550 F.3d 1319, 1324 (11th Cir. 2008) ................................................................ 69 United States v. Goodwin,

625 F.2d 693, 703 (5th Cir. 1980), cert denied, 484 U.S. 873, 108 S.Ct. 209, L.Ed.2d 160 (1987) ............................................................................................. 45 United States v. Granderson, 511 U.S. 39, 54, 114 S.Ct. 1259, 1267-68 (1994 ............................................... 57 United States v. Hammond

598 F.2d 1008 (5th Cir. 1979) ................................................................. 44, 45, 47 United States v. Hands,

184 F.3d 1322, 1334 (11th Cir. 1999) ................................................................ 72 United States v. Harrelson

754 F.2d 1153, 1163 (5th Cir. 1985). ................................................................. 24 United States v. Henricksen

564 F.2d 197 (5th Cir. 1977) ................................................................... 44, 45, 47 United States v. Herring,

568 F.2d 1099 (5th Cir. 1978) .............................................................................. 34


xi

United States v. Irey,

612 F.3d 1160, 1189 (11th Cir. 2010) (en banc ) ............................................... 69 United States v. Kloess,

251 F.3d 941 (11th Cir. 2001) ............................................................................. 62 United States v. Labarbera,

581 F.2d 107, 110 (5th Cir. 1978) ....................................................................... 72 United States v. Lanier,

520 U.S. 259, 266; 117 S.Ct. 1219, 1225 (1997)................................................ 57 United States v. Lively, 803 F.2d 1124, 1126 (11th Cir.1986) .................................................................... 37 United States v. McGarity,

669 F.3d 1218, 1232 (11th Cir.) .......................................................................... 25 United States v. McLain

823 F.2d 1457, 1462 (11th Cir. 1987) ................................................................ 72 United States v. Morrison

535 F.2d 223 (3d Cir.1976) ........................................................................... 44, 45 United States v. Orleans,

425 U.S. 807, 814-16, 96 S.Ct. 1971, 1976-1978 (1976) .................................. 55 United States v. Pineiro,

389 F.3d 1359, 1367 (11th Cir. 2004) ................................................................ 25 United States v. Pompey,

17 F.3d 351, 354 (11th Cir.1994) (citations omitted) ......................................... 63 United States v. Puche 350 F.3d 1137, 1148 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24


xii

United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir.1995) ................................................................... 37

United States v. Santos,

553 U.S. 507, 514, 128 S.Ct. 2020, 2025 (2008) ................................................ 57 United States v. Thomas,

488 F.2d 334 (6th Cir. 1973 ................................................................................ 45 United States v. Tobias,

662 F.2d 381, 386-87 (5th Cir. 1981) ................................................................. 25 United States v. Toler,

144 F.3d 1423, 1428 (11th Cir. 1998) ................................................................ 25 United States v. Williams

809 F.2d 1072 (5th Cir. 1987) .............................................................................. 35 Washington v. Texas,

388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). .................. 44, 47 Webb v. Texas,

409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) ................................. 44, 45, 47 Statutes

1 U.S.C. §§ 1-6 ....................................................................................................... 49

15 U.S.C. § 782-dd(b) ....................................................................................... 38, 62

15 U.S.C. § 78dd-2(a)(1)-(2) .................................................................................. 47

15 U.S.C. § 78dd-2(a)(2) ........................................................................................ 50

15 U.S.C. § 78dd-2(b) ............................................................................................. 50


xiii

15 U.S.C. § 78-dd-2(h)(2)(A) ................................................................................. 48

18 U.S.C. § 1956(a)(1)(B)(i) .....................................................................................4

18 U.S.C. § 1956(a)(1)(B)(i) and 2. ..........................................................................4

18 U.S.C. § 1956(h). ..................................................................................................4

18 U.S.C. § 3231 ..................................................................................................... xii

18 U.S.C. §3553(c) ........................................................................................... 28, 69

28 U.S.C. § 1002(32) .............................................................................................. 55

28 U.S.C. § 1291 ..................................................................................................... xii

28 U.S.C. § 1603(b) ................................................................................................ 56

28 U.S.C. §§ 1346(b), 2671 .................................................................................... 55

Other Authorities

ABA Standards relating to Fair Trial and Free Press. s 3.5 (f)(1968).” ............... 35

Dodd–Frank Wall Street Reform and Consumer Protection Act, Pub.L. No. 111–

203, 124 Stat. 1376, § 1054 (2010), codified at 15 U.S.C. § 78m(q)(1)(B) ....... 56

Employee Retirement Income Security Act ........................................................... 54

Foreign Corrupt Practices Act ......................................................................... passim

Six Amendment ....................................................................................................... 27

U.S. Sentencing Guidelines Manual § 3B1.1(b) ............................................... 64,65

U.S.S.G. § 3C1.1 ..................................................................................................... 66


xiv

U.S.S.G. § 2B1.1(b)(9)(B) ...................................................................................... 62

U.S.S.G. § 3B1.1 ................................................................................................ 64,67

U.S.S.G. § 3B1.1(b) .......................................................................................... 63 Rules

FRAP 32(a)(7)(B), ................................................................................................... 73


xv

STATEMENT OF JURISDICTION

The district court had jurisdiction of this case pursuant to 18 U.S.C. § 3231

because the defendant was charged with an offense against the laws of the United

States. The court of appeals has jurisdiction over this appeal pursuant to 28

U.S.C. § 1291, which gives the courts of appeals jurisdiction over all final

decisions of the district courts of the United States.


1

STATEMENT OF THE ISSUES

ISSUE I

THE TRIAL COURT’S FAILURE TO MAKE ANY INQUIRY AS

TO WHETHER THE JURY HAD BEEN EXPOSED TO

EXTENSIVE, ONGOING, HIGHLY PREJUDICIAL MID-TRIAL

PUBLICITY WAS AN ABUSE OF DISCRETION AND DEPRIVED

MR. DUPERVAL OF HIS SIXTH AMENDMENT RIGHT TO BE

TRIED BY A FAIR AND IMPARTIAL JURY.

ISSUE II

THE TRIAL COURT ERRED IN NOT CHARGING THE JURY IN

ACCORDANCE WITH MR. DUPERVAL’S PROFFERED

THEORY OF DEFENSE INSTRUCTION

ISSUE III

THE GOVERNMENT’S SUBSTANTIAL INTERFERENCE WITH

A POTENTIAL ESSENTIAL DEFENSE WITNESS, DEPRIVED

MR. DUPERVAL OF HIS FIFTH AMENDMENT RIGHT TO DUE

PROCESS OF LAW.

ISSUE IV

THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A


2

REASONABLE DOUBT THAT HAITI TELECO WAS A

GOVERNMENT INSTRUMENTALITY AND THAT JEAN RENE

DUPERVAL WAS A FOREIGN OFFICIAL AS REQUIRED TO

PROVE THAT A VIOLATION OF THE FOREIGN CORRUPT

PRACTICES ACT GENERATED PROCEEDS OF A SPECIFIED

UNLAWFUL ACTIVITY – A NECESSARY PREDICATE FOR

THE CONVICTIONS ON THE MONEY LAUNDERING

CONSPIRACY AND SUBSTANTIVE MONEY LAUNDERING

CHARGES.

ISSUE V

THE 108 MONTH SENTENCE IMPOSED BY THE DISTRICT

COURT WAS BOTH PROCEDURALLY AND SUBSTANTIVELY

UNREASONABLE

ISSUE VI

WHETHER CUMULATIVE ERROR COMPELS REVERSAL OF

THE DEFENDANT'S CONVICTIONS.


3

STATEMENT OF THE CASE

Course of Proceedings and Disposition in the District Court

On December 4, 2009, a grand jury in the Southern District of Florida

returned an indictment charging the Appellant, Jean Rene Duperval, along with

Joel Esquenazi, Carlos Rodriguez, Robert Antoine, and Marguerite Grandison

with various offenses arising out of business transactions conducted between

Telecomunications D’Haiti and its officers and Terra Telecommunications Corp.

and its officers(DE:3).

On March 12, 2010, Mr. Antoine pled guilty and cooperated with the

government. (DE:132;135). Two of Mr. Antoine’s co-conspirators, Juan Diaz and

Jean Fourcand, were charged in separate informations, pled guilty and also

cooperated with the government.

On July 12, 2011, the indictment was superseded adding as defendants

Cinergy Telecommunications, Inc. and its officers Washington Vasconez Cruz and

Amadeus Richers, as well as Patrick Joseph, the former Director General of

Telecomunications D’Haiti, as defendants. (DE:419). The superseding indictment

expanded the charges against Mr. Duperval by adding money laundering

allegations related to purported bribe payments made to him by Cinergy

Telecommunications, Inc. As a result, Mr. Duperval, Ms. Grandison, and Mr.


4

Joseph were severed and set for trial in the early part of 2012. (DE:556). Mr.

Esquenazi and Mr. Rodriguez proceeded to trial on July 18, 2011 and on August 5,

2011, Mr. Esquenazi and Mr. Rodriguez were found guilty. (DE:454;522).

On July 12, 2011, the indictment was superseded for the second and final

time, thereby charging Jean Rene Duperval, with the following offenses:

Count 8 – conspiracy to commit money laundering in relation to

Cinergy Telecommunications, Inc. in violation of 18 § U.S.C. 1956(h).

Count 9 – conspiracy to commit money laundering in relation to Terra

Telecommunications Corp. in violation of 18 § U.S.C. 1956(h).

Counts 10-28 – money laundering in in violation of 18 § U.S.C.

1956(a)(1)(B)(i) and 2.

(DE:685).

Prior to trial, Marguerite Grandison entered into a diversionary disposition

program and on February 24, 2012, Cinergy Telecommunications, Inc. was

dismissed from the indictment. (DE:727).

Following a seven day jury trial held March 1, 2012 through March 12,

2012, Mr. Duperval was found guilty on all counts. (DE:757). The defense

moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of


5

Criminal Procedure at the close of the government’s case (DE:772:115-16) and

again at the close of all of the evidence. (DE:773:111).

On April 30, 2012, Mr. Duperval filed objections to the presentence

investigation report which were argued at sentencing and overruled by the court.

(DE:806; DE:850).

On May 21, 2012, Mr. Duperval was sentenced to 108 months

imprisonment to be followed by three (3) years of supervised release. A special

assessment of $100.00 was imposed as to each count of conviction. (DE:816).

He timely filed his Notice of Appeal on June 1, 2012 (DE:826) and is

currently incarcerated serving his sentence at McRae CI, in Georgia.


6

Statement of Facts

From the latter part of June 2003 until his discharge in April, 2004, Jean

Rene Duperval served as the Director of International Affairs and Deputy Director

General of Telecommunications D’Haiti (“Teleco”). (DE772:22). Teleco is a

Haitian telecommunications company which, upon its founding in 1968 was

granted and continues to maintain a monopoly to provide land line telephone

service to the residents and businesses of Haiti. (DE:771:69-70). In his capacity

as Director of International Affairs, Mr. Duperval was charged with the

responsibility of administering telecommunications contracts that had been

entered into between Teleco and international telecommunications providers

including large providers such as AT&T and smaller carriers such as Terra

Telecommunications (“Terra”) and Cinergy Telecommunications, Inc. and its

related company, Uniplex Telecom Technologies Inc. (collectively “Cinergy”).

Both Terra and Cinergy were located in Miami, Florida. (DE:770:71-72;772:129).

During the course of administering Teleco's contracts with the international

providers, Mr. Duperval would discuss and negotiate rates charged by Teleco,

participate in discussions addressing payment and billing issues between Teleco

and the various providers, and, generally, oversee the international business of

Teleco. Mr. Duperval did not have the discretion or authority to enter into


7

contracts on behalf of Teleco nor did he have the discretion or authority to

unilaterally change or adjust the contractual per minute rates charged by Teleco

to its international customers. Those powers rested exclusively with the Director

General of Teleco who, during Mr. Duperval's tenure, was Alfonse Inevil.

(DE:772:109-10).

Robert Antoine became Director of International Affairs of Haiti Teleco in

June or July of 2001. (DE:770:71). Prior to the time that he assumed that position

at Teleco, Teleco had entered into two contracts with Terra. One of the contracts

was a exclusive calling card agreement between Terra and Teleco (the 108

platform joint venture agreement) that existed for only a brief period of time. That

contract was apparently terminated by the then Director General of Teleco, Patrick

Joseph. On behalf of Teleco, Joseph then entered into a similar contract with

Cinergy. The other Terra contract was a standard international telephone service

agreement which allowed Terra to transmit landline traffic from the United States

through Teleco to Haiti at a per minute rate. (Gov. Ex. 113 TERRA 2398;

DE:770:160). This contract had a "most favored nations clause" pursuant to

which Terra would be charged at a rate not greater than the lowest rate Teleco

charged to other international carriers. (DE:772:141).


8

During the course of its business relationship with Teleco, Terra provided

Teleco with a significant amount of expensive telecommunications equipment.

Pursuant to the standard contract, Terra was invoiced on a monthly basis for the

minutes transmitted, and was expected to pay the invoices on a monthly basis.

Early on during his employment at Teleco, Mr. Antoine became aware that

Teleco contended that Terra was substantially in arrears in making payments for

minutes which it had transmitted to Haiti pursuant to the contract. (DE:770:81).

According to Mr. Antoine, his longtime friend, Jean Fourcand, who was Patrick

Joseph's cousin and had assisted Antoine in getting his position at Teleco,

approached him with a plan that would make them some money and at the same

time, assist Terra in resolving it's delinquency issues with Teleco.1 Ultimately,

after further discussions between Mr. Antoine and Joel Esquenazi, the Chief

Executive Officer of Terra, Antoine agreed to fraudulently reduce the monthly

number of minutes that Terra would be billed for. (DE:770:82). In exchange for

his assistance, Antoine would be paid a sum equal to approximately half of the

money Terra would be saving each month. (DE:770:83).

1 Although Antoine testified that it was Jean Fourcand who hatched the plan, (DE:770:168-70), Juan Diaz, who knew both Antoine and Fourcand well, contradicted Antoine. According to Diaz, Fourcand lacked the insight and sophistication to come up with an idea like this. The plan was Antoine’s idea. (DE:771:168).


9

To effectuate the plan, Mr. Antoine created false invoices on a monthly

basis thereby substantially reducing the number of minutes that were being

charged to Terra. Between October 2001 and February 2003, Mr. Antoine

received approximately $400,000 to $500,000 from Terra pursuant to this illicit

arrangement. (DE:770:85). In addition, Mr. Antoine also received prepaid calling

cards that were provided by Terra. These cards were then sold by Mr. Fourcand,

either at his store or through other local card distributors. Antoine would then

receive a portion of the proceeds from the sale of the cards.

To facilitate and cover up the payments from Terra to Antoine, Antoine

enlisted the services of his friend, Juan Diaz. Mr. Diaz had a dormant company,

J.D. Locator Services, which he had previously used in connection with exporting

goods to Haiti. At Mr. Antoine's request, Mr. Diaz reactivated the company,

opened a bank account in the company name, and began receiving monthly

payments from Terra for Antoine's benefit. JD Locator Services entered into a

consulting agreement with Terra to justify the receipt of payments. (DE:770:83).

In exchange for his assistance, Mr. Diaz was promised a seven percent

commission on the payments from Terra he handled for Antoine. (DE:770:85).

Mr. Diaz would usually pick up checks on a monthly basis from Terra's

offices. He would deposit those checks into the JD Locator account and then, in


10

exchange for his agreed to commission, distribute the remaining proceeds directly

to Antoine or into Antoine's bank account. (DE:771:138). In addition to JD

Locator Services, Antoine also used two other entities including A&G Import and

Ernst Cadet & Assoc. to receive a few of the initial payments made pursuant to his

arrangement with Terra. (DE:770:83).

Mr. Antoine also had a number of dealings with Cinergy and its operating

officers, including Washington Vasconez, Cecilia Zureta, and Amadeus Richers.

Like Terra, Cinergy had a basic international service agreement with Teleco.

(DE:770:88). In addition, Cinergy had a calling card agreement (the 104 platform)

with Teleco. (DE:770:105). Under that agreement, Cinergy paid for and installed

at Teleco the requisite telecommunications and technical equipment for the calling

card operation to function. (DE:770:89). In addition, following the inception of

the agreement, Cinergy purchased and prepaid for approximately 85 million

minutes of phone time for the sum of $6 million. (DE:770:92;99). The calling

card agreement entitled Cinergy to use a set number of the prepaid minutes per

month. Minutes used by Cinergy in excess of the agreed figure would be billed at

the prevailing contract rate. (DE:770:101).

To protect its investment and guarantee Teleco's performance under the

calling card contract, Cinergy convinced Teleco to provide a $6 million letter of


11

credit for the benefit of Cinergy. Antoine, despite being employed by Teleco,

lobbied extensively on Cinergy’s behalf for Teleco to agree to provide the letter of

credit which benefited only Cinergy. In exchange for his efforts in securing the

letter of credit (for the benefit of Cinergy and to the detriment of Teleco), Antoine

received a total of $150,000. Cinergy paid this money to Antoine through Juan

Diaz's company, JD Locator Services. (DE:770:93-96).

In addition to his own dealings, Mr. Antoine assisted Patrick Joseph in

receiving payments from Cinergy by picking up checks and delivering them to

Joseph. Juan Diaz was also involved in handling some of the Cinergy/Uniplex

payments to Patrick Joseph. (DE:770:96-97).

After Patrick Joseph fired Mr. Antoine from his position at Teleco in March

or April 2003, Antoine was offered a consulting position with Cinergy.

(DE:770:113). To conduct his new consulting business, Antoine opened a Florida

corporation known as Process Consulting Inc. (DE:770:116).

After Antoine was fired from Teleco, he was replaced by Alfonse Inevil as

Director of International Affairs. Mr. Inevil, who had previously been the

Director of Planning, remained in that position for only a few months before being

promoted to the position of Director General upon Patrick Joseph's resignation.

(DE:770:113-15).


12

At the time that Mr. Inevil began serving as Director of International

Affairs, there was an ongoing dispute between Terra and Teleco concerning

significant sums of money allegedly owed by Terra to Teleco. (DE:772:26). As a

result of this dispute, at some point in June 2003, Teleco disconnected Terra's

lines. (DE:772:147).

In late June 2003, when Mr. Duperval became Director of International

Affairs, Teleco was still dealing with numerous issues concerning Terra, including

the alleged delinquency and the disconnection of Terra’s circuits. Shortly after he

assumed office, Mr. Duperval attended a meeting held at Teleco between Mr.

Inevil and Mr. Esquenazi. During the meeting, ongoing issues were discussed and

Terra again made it known that it had been and was continuing to be overcharged

by Teleco for the minutes it was sending to Haiti. (DE:772:140-45).

Mr. Duperval carefully reviewed the overcharging allegations and detailed

written backup documentation provided by Terra. That, coupled with a review of

the specific terms of the Terra/Telco contract (particularly the "most favored

nations” provision), showed that Terra was correct. For a number of years Terra

had been charged at a rate significantly higher than that which was called for

under the contract, i.e., a rate not greater than the lowest rate charged to other


13

international carriers.2 The total amount of the overcharges far exceeded one

million dollars. (DE772:145).

To resolve the ongoing dispute with Terra, Teleco agreed to reconnect

Terra's lines on the condition that Terra would prepay for minutes that it

anticipated using in the future. (DE:772:148). In addition, Teleco agreed (with

the express approval of Mr. Inevil, the Director General) to downwardly adjust

the per minute rate Teleco had been charging Terra so that it more nearly

approximated the lowest rate charged to other international carriers.

(DE:772:156). The initial rate adjustment effective in November 2003 lowered

the rate to $0.075 per minute. That figure was subsequently adjusted again, and by

December 2003, a permanent rate of $0.07 per minute was in effect. (DE:772:78).

Even that rate was still slightly higher than the lowest rate Teleco was then

charging other international providers. (DE:772:163).

During the latter portion of 2003, Terra became aware that it had also been

overcharged for minutes billed by Teleco through UT Starcom. Starcom was a

limited range calling program that was initiated by Teleco in anticipation of

2 For example, at various junctures during the relevant time frame through June 2003, Cinergy was charged $0.065 per minute; Haiti direct $0.08 per minute; Mt. Salem $0.06 per minute; Toscana $0.05 per minute. Terra, on the other hand, was routinely charged between $0.07 and $0.15 cents per minute. (DE:772:135;139;143;160; Defense Ex. D).


14

increased telephone traffic attributable to the celebration of the anniversary of

Haiti's independence. Given the limited calling range of the Starcom system,

minutes were supposed to be billed at the prevailing Teleco contract rate for land

line calls rather than the higher rate customarily charged for full range cellular

calls. However, for a number of months, Teleco had billed minutes sent through

by Terra through Starcom at a higher rate, i.e., $0.15 per minute, rather than at the

land line rate. When Terra brought this error to Teleco's attention, the rate was

corrected and the appropriate credit was given to Terra in December 2003. From

that point forward Terra was billed for minutes sent through Starcom at the correct

rate. (DE:772:158-63).

In October 2003, Terra's General Counsel, James Dickey, incorporated

Telecom Consulting Services, Inc. (“Telecom Consulting”). (DE:772:110). Mr.

Duperval's sister, Marguerite Grandison, was designated as the president of

Telecom Consulting and signed a consulting agreement with Terra on behalf of the

newly formed corporation.3 (DE:772:49). At Mr. Esquenazi’s request, his

business banker, Pedro Lacau, visited Ms. Grandison at her home and had her sign

the necessary documents to open a business account for Telecom Consulting.

(DE:769:128). An account was then opened at Southtrust Bank. (DE:769:130).


15

Between November 2003 and June 2004 Terra initiated wire transfers

totaling approximately $75,000 to the Telecom Consulting account. (DE:772:61).

In late June and July 2003, there was also an ongoing dispute between

Teleco and Cinergy concerning the fact that Cinergy was routing a substantial

number of calls through a smaller carrier, Toscana. Toscana had a very favorable

contract with Teleco that allowed it to purchase minutes at the rate of five cents

per minute. The Cinergy/Toscana arrangement was negatively impacting Teleco's

monthly revenues since Cinergy was sending minutes thru Toscana’s circuits and

paying Toscana at a lower rate than if Cinergy was sending the traffic through its

own circuits and paying Teleco directly. To resolve the dispute, Teleco, through

Mr. Inevil, approved a slightly lower per minute rate than what Teleco had been

charging Cinergy with the understanding that Cinergy would send no further

minutes through Toscana's circuits. The resolution ended up costing Cinergy

more money each month and increased Teleco’s monthly cash flow. (DE:772:136-

140).

During the time that Mr. Duperval was employed at Teleco, a major concern

was the $6 million letter of credit that ran in favor of Cinergy. Despite Cinergy's

insistence and wishes, Mr. Inevil and Mr. Duperval (unlike his predecessor Mr.

3 Ms. Grandison’s prior employment history reflected no involvement or


16

Antoine) were unwilling to support and lobby for an extension of the letter of

credit because it was simply a benefit to Cinergy and a huge, unnecessary liability

for Teleco. (DE:773:3-6).

Although the letter of credit was not renewed, Teleco found it financially

profitable to continue to do business with Cinergy under each of the existing

contracts.

To comply with the terms of the calling card contract, Teleco was required

to repay Cinergy $890,000 for the telecommunications and technical equipment

Cinergy had provided. (DE:772:171). The debt was repaid by Teleco crediting

Cinergy’s account with minutes with a value equal to the amount of the debt.4

When the debt was repaid, Teleco became the owner of the equipment.

(DE:772:176).

Given the profitability of the calling card arrangement with Cinergy, Teleco

ordered an additional million prepaid calling cards from Cinergy in late 2003. To

pay for the calling cards, Teleco credited Cinergy's account with the appropriate

number of minutes. Additional minutes were credited at the same time to adjust for

experience in the telecommunications industry. 4 The total number of minutes credited over an approximate four month period beginning in late 2003 was 13,692,307. The value of the minutes was $890,000, i.e., the exact amount Teleco owed Cinergy for the equipment. (DE:772:180-81).


17

unused minutes still outstanding on cards previously sold by Teleco in Haiti and

older cards remaining in its inventory.5

Beginning in late 2003, Cinergy made a number of payments to or on behalf

of Mr. Duperval. The initial payments totaling $142,640 were made to a company

named Crossover Records, a music business Mr. Duperval had been involved in

with his brother, Lionel. Subsequently, six payments totaling $257,339 were made

to Telecom Consulting, Inc. (Gov. Ex. 601). The payments to Crossover and

Telecom Consulting were reflected on internal documents prepared and retained

by Cinergy. These internal documents indicated that the payments were for the

purchase of phone minutes for traffic sent to Haiti. In addition, two payments

totaling $22,532.00, were made by Robert Antoine to Mr. Duperval via Antoine's

company, Process Consulting. (Gov. Ex. 51 at HAI 010324 & 007553;

DE770:124-25).

According to Mr. Antoine, the money that was being paid by Cinergy to

Crossover Records and Telecom Consulting was in exchange for Mr. Duperval's

efforts to continue the favorable contracts that Cinergy had with Teleco. Antoine

5 The calling cards entitled people in Haiti to place calls to the United States through Cinergy’s circuits. Teleco compensated Cinergy by crediting it for each minute sent at the same rate Teleco was charging Cinergy for minutes sent to Haiti. Teleco sold the cards in Haiti at a price equal to approximately $0.17 per minute. Teleco’s profit was approximately $0.11 per minute on the cards.


18

testified that Cinergy was concerned that once Teleco paid off the debt owed to

Cinergy for the equipment that was part of the calling card platform, Teleco would

be free to utilize the equipment for its own purposes and could then enter into a

calling card arrangement with any other carrier. Antoine also testified that to

secure Mr. Duperval's assistance and cooperation, he had traveled from the United

States to Haiti and met with Mr. Duperval at Mr. Antoine's residence in Haiti. At

that meeting, he received assurances that Mr. Duperval would do what he could to

help. Mr. Duperval and Antoine then agreed on the compensation that would be

necessary to secure Mr. Duperval’s cooperation. Antoine then reported the results

of the meeting back to the executives at Cinergy.6

Of the $142,640 that was paid by Cinergy to Crossover Records,

approximately $93,000 was subsequently transferred to Mr. Duperval's personal

account at University Credit Union via three wire transfers in October/November

2003. (Gov. Ex. 603). Of the monies paid by Terra ($75,000) and Cinergy

($257,340) to Telecom Consulting, substantial sums were transferred to Mr.

Duperval's personal accounts at University Credit Union or Wachovia Bank. In

6 Juan Diaz had a different version. It was his understanding that Mr. Duperval was cutting minutes and reducing Cinergy’s monthly bills. No evidence of this was presented at trial. According to Diaz, Antoine also told him that with regard to Terra, Mr. Duperval was doing the same thing Antoine had been doing. (DE:771:160). That too is belied by the record.


19

addition, Telecom Consulting made other payments for Mr. Duperval or his

family's benefit. For example, the approximate sum of $100,272 was paid by

Telecom to Statewide Title as part of the purchase price for a residence in

Broward County, Florida and $3956 was paid to the Florida prepaid college tuition

program. (Gov. Ex. 609).

IRS Special Agent Charles Hyacinthe interviewed Mr. Duperval at Villa

Creole Hotel in Haiti in December 2005. (DE:772:16). According to Hyacinthe,

during the course of the interview, Mr. Duperval told him that he had been asked

by President Aristide to take the position of Director of International Relations.

(DE:772:22). He also told him that he had written a letter to Cinergy informing

them that Teleco was going to cancel the contract because of money owed by

Cinergy.7 After he sent that letter, he went to Miami and met with the Cinergy

executives and Robert Antoine at Cinergy's offices. During that meeting he was

offered two cents minute to continue the Cinergy Teleco contracts. He accepted

the offer with the understanding that it would generate approximately $10,000-

$12,000 per month. (DE:772:23-24). According to the agent, Mr. Duperval also

told him about the payment arrangement between Cinergy and Telecom

7 No such letter was ever introduced by the government at trial. Nor did the evidence at trial establish that Cinergy was indebted to Teleco. To the contrary.


20

Consulting and admitted that Telecom performed no actual services for Cinergy.

(DE:772:25-26). Mr. Duperval estimated that he had received a total of

approximately $150,000 from Cinergy and was paid a monthly salary of $2,500 by

Telecom Consulting. (DE:772:26).

Agent Hyacinthe recalled that with regard to Terra, Mr. Duperval informed

him that Mr. Inevil had wanted to terminate the Terra/Teleco contract. Terra

claimed it was owed over $1 million by Teleco and provided backup

documentation. (DE:772:26). Mr. Duperval decided to continue with the contract

and for his assistance in resolving the matter, he received $10,000 and a Rolex

watch. Mr. Duperval did not mention receiving any other payments from Terra.

(DE:772:27).

Louis Gary Lissade, a practicing attorney and former Haitian Minister of

Justice, was qualified by the court as an expert in Haitian law and public

administration and testified on behalf of the government with regard to the legal

status of Teleco. (DE:771:67). Lissade explained that in 1968 Teleco was

founded as private company and granted a monopoly to serve as the land line

telephone service provider in Haiti. (DE:771:69-71). About three to four years

later, the Bank National Republic of Haiti (“BNRH”) became the owner of 97% of

Cinergy often advanced money and equipment to Teleco and at least until early


21

the Teleco shares of stock. (DE:771:71-72). BNRH evolved into what is now the

Central Bank of Haiti---the Haitian equivalent of the Federal Reserve in the

United States. (DE:771:72-73).

When BNRH acquired the shares, Teleco's official designation should have

been changed from an S.A. (a designation indicating private ownership) to an

S.A.M (a designation indicating a corporation that has mixed government and

private ownership). (DE:771:74). However, unlike any other company in which

the Haitian government had acquired an ownership interest, no law was ever

passed officially designating Teleco as an S.A.M.

Lissade explained that the Teleco Board of Directors (consisting of five

members from the government and two members from the private sector) is

appointed by an executive order signed by the President of Haiti, the prime

minister, and other cabinet members. (DE:771:75). According to Lissade, the

General Director of Teleco is appointed by the President. The executive order

confirming that appointment (for example the order appointing Mr. Joseph) is

signed by the President, the prime minister and the ministers of public works, etc.

(DE:771:75).

2004 was a creditor of Teleco.


22

Mr. Lissade also testified that the letter designating Mr. Duperval as Deputy

Director had been signed by the Minister of Public Works and Transportation and

Communication; and that the letter terminating Mr. Duperval from his position

had been signed by the president of Teleco's board. (DE:771:88-89; Gov. Ex.

415T).

During his testimony, Mr. Lissade was shown insurance documents and

related correspondence, including a letter from Mr. Esquenazi to an insurance

broker suggesting they could get a letter from the president of Teleco confirming

Teleco is an instrumentality of the Haitian government. (DE:771:94). Lissade

explained that an asset disclosure law passed in 2008 and applicable to Teleco and

its Director and Deputy Director was declarative of the long standing

understanding that Teleco was part of the public administration. (DE:771:98-

101).8

8 Contrary to Lissade’s opinion, the record demonstrates that in virtually all aspects of its business, Teleco functioned as a private company. For example, Teleco can be sued in its own name, can bring a lawsuit in its own name, pays for and is represented by the attorneys of its choosing, is not funded by the Haitian annual budget, opened a private pension fund account in the United States, its employees do not receive the same benefits as government employees, and to overcome cash flow issues it has borrowed money or been funded by private concerns including Terra and Cinergy. In addition, it contracts on its own behalf, the Haitian government is neither a party to Teleco’s contracts, or liable for a breach. (DE:771:113).


23

In addition to testifying about the legal status of Teleco, Lissade also opined

that two provisions of the Haitian Penal Code (Article 137 and 140) applied

respectively to the Teleco Director of International Affairs and to people who

bribe public agents or officials such as Teleco Director of International Affairs.

(DE:771:95-98).

Mr. Duperval testified that as the Director of International Affairs at Teleco,

it was his job to administer and manage contracts that had been entered into by the

Director General. Only the Director General had the power to enter into contracts.

As Director of International Affairs, he did not have the power to enter into or

modify contracts with the carriers. (DE:772:129-30).

Mr. Duperval explained that his understanding of the reason he was

receiving money from Terra and Cinergy was that “they showed their appreciation

for the way [he] was administering their contracts.” Nothing illegal or beyond the

scope of the contracts was ever performed. (DE:773:16-17).

Nor does it guarantee performance as evidenced by the Teleco/Cinergy $6 million letter of credit.


24

STANDARDS OF REVIEW

ISSUE I

A trial judge’s decision as to whether to make an inquiry to determine if the

accused has been prejudiced by the jury’s exposure to media coverage concerning

a trial the reviewed for abuse of discretion. United States v. Harrelson, 754 F.2d

1153, 1163 (5th Cir. 1985).

ISSUE II

A deferential standard of review is applied to a trial court’s jury

instructions. United States v. Puche, 350 F.3d 1137, 1148 (11th Cir. 2003). This

Court reviews the trial court’s refusal to give a requested theory of defense

instruction to determine (1) if the requested instruction is a correct statement of the

law; (2) whether the requested instruction was adequately covered by other

instructions given in the case; (3) whether there is any evidence in the record to

support the requested instruction; and (4) whether the failure to give the requested

instruction seriously impaired the defendant's ability to present an effective

defense. United States v. De La Mata, 266 F.3d 1275, 1298 (11th Cir.2001).

ISSUE III

Claims of government misconduct, including claims of substantial

interference with a defense witness are reviewed de novo. United States v.


25

Tobias, 662 F.2d 381, 386-87 (5th Cir. 1981).

ISSUE IV

This Court reviews de novo the sufficiency of evidence to support a

conviction. United States v. Pineiro, 389 F.3d 1359, 1367 (11th Cir. 2004);

United States v. Toler, 144 F.3d 1423, 1428 (11th Cir. 1998). The Court must

“examine the evidence in the light most favorable to the government to determine

whether a reasonable jury could have concluded beyond a reasonable doubt that

the defendant was guilty of the crimes charged.” Toler, 144 F.3d at 1428. A

guilty verdict can only stand if there is “substantial evidence” to support it. Id. at

1426, 1428.

ISSUE V

The review of a sentence for reasonableness is analyzed under a deferential abuse

of-discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007). A district

court's factual findings underlying a sentencing enhancement are reviewed for

clear error and the application of those facts to the guidelines is reviewed de

novo. United States v. McGarity, 669 F.3d 1218, 1232 (11th Cir.)

ISSUE VI

In addition, where cumulative error is reviewed by this Court, the total prejudicial

effect of the trial errors must be weighed to determine whether reversal is


http://web2.westlaw.com/find/default.wl?mt=Florida&db=780&rs=WLW13.01&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2029708314&serialnum=2014313739&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=4B199069&referenceposition=51&utid=2

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26

warranted. United States v. Dohan, 508 F.3d 989, 993 (11th Cir. 2007)

(“cumulative impact of multiple evidentiary and instructional errors” reviewed de

novo).


http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=506&FindType=Y&ReferencePositionType=S&SerialNum=2014197171&ReferencePosition=993

27

SUMMARY OF THE ARGUMENT

The trial court’s failure to make any inquiry as to whether the jury had been

exposed to extensive, detailed, ongoing, extrajudicial, highly prejudicial mid-trial

publicity was an abuse of discretion and deprived Mr. Duperval of his Six

Amendment right to be tried by a fair and impartial jury. The trial court also erred

in failing to make inquiry when one of the jurors sent a note to the judge in the

middle of trial suggesting she had obtained extrajudicial knowledge of facts of the

case.

The trial court erred in not charging the jury in accordance with Mr.

Duperval’s proffered theory of defense instruction, which explained that it is an

exception to the Foreign Corrupt Practices Act “FCPA” to pay or provide any

facilitating payment to expedite or secure the performance of a routine

governmental action by a foreign official. The proffered instruction was a correct

statement of the law, was supported by Mr. Duperval’s testimony that the

payments were made in appreciation of his administering the contracts, and was

not adequately covered by other instructions delivered by the court.

The government interfered with a favorable defense witness prompting a

revision of a declaration written by then Prime Minister Bellerive which

substantially contradicted the government’s position that Teleco was an


28

instrumentality of the Haitian government. In so doing, the government interfered

with a favorable defense witness and violated Mr. Duperval’s right to due process.

The evidence was insufficient to prove beyond a reasonable doubt that Haiti

Teleco was a government instrumentality and that Jean Rene Duperval was a

foreign official as required to prove a charge of money laundering related to the

proceeds of a violation of the “FCPA”.

The 108 month sentence imposed by the district court was both procedurally

and substantively unreasonable. The trial court erred in applying numerous

sentencing enhancements including adding two levels on grounds that a

substantial part of the fraudulent scheme was committed outside the United States,

three levels for managing five or more participants where there was no evidence

the individuals Mr. Duperval allegedly supervised were criminally responsible,

two levels for obstruction of justice where there was no evidence Mr. Duperval

willfully perjured himself or provided a materially false statement to law

enforcement. Mr. Duperval’s sentence was also substantively unreasonable based

on the factors mandated by 18 U.S.C. §3553(c) and resulted in an unwarranted

sentencing disparity between Mr. Duperval and his similarly situated co-

defendants.


29

ARGUMENT AND CITATIONS OF AUTHORITY

ISSUE I

The trial court’s failure to make any inquiry as to whether the jury had been

exposed to extensive, ongoing, highly prejudicial mid-trial publicity was an abuse

of discretion and deprived Mr. Duperval of his Six Amendment right to be tried by

a fair and impartial jury.

The second superseding indictment returned by the grand jury in this case

made a number of specific allegations regarding corruption at Haiti Teleco

involving not only Teleco officials such as Mr. Duperval and Patrick Joseph, but

also by letter designation, political figures including Venel Joseph, the father of

Patrick Joseph and former chairman of the Central Bank of Haiti, and Jean

Bertrand Aristide, the former President of Haiti. Given these very specific

allegations of corruption extending to the highest level of the Haitian government,

it was of paramount concern to the defense to determine whether potential jurors

had knowledge of or personal feelings regarding the case, corruption in Haiti, the

political situation in Haiti, or Mr. Aristide that would hinder the jurors’ ability to

sit as fair and impartial judges of the facts in this case.

Jury selection was conducted on Thursday, March 1, 2012. At the

beginning of the jury selection process, defense counsel requested that the court


30

not only make inquiry of the prospective jurors concerning their knowledge of or

dealings in Haiti, but also given recent media coverage concerning Jean Bertrand

Aristide and Haiti, whether they had been exposed to that coverage. (DE:769:4-

5). In response to a very general inquiry made by the court, two prospective jurors

indicated that they had read something about either the case or President Aristide,

but could not recall specifics. (DE:855:68-70). Following jury selection, the case

was recessed until Monday, March 5, 2012. (DE:855:137).

On Sunday, March 4, 2012, a very extensive and detailed article entitled

“Bribe Probe Zeroes in on Aristide” appeared on the front page of the Miami

Herald. The article also was prominently featured on the Miami Herald website.

(Mt.S.R. Ex. 2). The article mentioned Mr. Duperval and Patrick Joseph by name,

provided detailed allegations of corruption at Teleco and implicated Aristide. At

the beginning of the court proceedings on Monday, March 5, 2012, defense

counsel brought this extensive media coverage to the attention of the court and

requested that the jurors who had been selected the previous Thursday be

individually voir dired to determine whether they had seen or read the newspaper

or website articles, discussed their contents, and if so, how it may affect their

ability to serve as a fair and impartial juror. The court denied that request.

(DE:769:2-8;17-19).


31

On Tuesday, March 6, 2012, the court indicated that it had received a note

from juror, Clarinda Gil. (DE770:2). In her note, Ms. Gil wrote, "I am aware of

Mr. Aristide’s problems in Haiti, charges of corruption, etc, etc." (DE:770:129).

Given the fact that during jury selection Ms. Gil failed to indicate any knowledge

of the situation in Haiti or President Aristide and in light of the extensive media

coverage which appeared over the weekend between jury selection and the

commencement of trial, counsel requested the court to individually question Ms.

Gil to determine exactly what knowledge she had, how she obtained it, and

whether it would impact her ability to serve as a fair and impartial juror in the

case. (DE:770:129). The court failed to make the requested inquiry.

Beginning on the evening of March 7, 2012, a number of articles appeared

on the Internet describing in great detail how Patrick Joseph's father had been

executed in Haiti in apparent retaliation for his son’s cooperating with the

government in its investigation of corruption in Haiti. (Mt.S.R.). The following

morning, March 8, 2012, an article appeared on the front page of the Miami

Herald titled “Father of Man in Aristide Probe is Slain.” (Mt.S.R. Ex. 4). Again

the article went into great detail not only about the specifics of this case and the

execution of Mr. Joseph’s father who was “brutally shot in the mouth,” but also

recounted details of the probe into President Aristide, corruption in Haiti, Mr.


32

Duperval and Haiti Teleco. It also included the observations of a former Assistant

United States Attorney that the execution was a clear message to the witnesses to

keep their mouths shut.

By the time these articles appeared, there had been extensive testimony and

evidence at trial concerning the fact that President Aristide appointed Patrick

Joseph as General Director of Teleco. (DE:770:69). Moreover, the jury would

hear testimony from a government agent that Mr. Duperval told him he had met

with President Aristide and that Aristide was responsible for Mr. Duperval

obtaining his position at Teleco. (DE:772:22). The jury also heard testimony

during trial to the effect that Patrick Joseph had been bribed by Cinergy and that

he was assisted by government witnesses Robert Antoine and Juan Diaz in that

endeavor. (DE:770:96).

Given this inherently prejudicial media coverage recounting allegations of

corruption tied to this case and extrajudicial accounts of witness intimidation and a

brutal execution, Mr. Duperval, at the beginning of the day’s proceedings on

March 8, 2012, moved for a mistrial or in the alternative, that each juror be

individually questioned to determine whether they had seen or read any of the

media coverage and whether it would impact their ability to be fair and impartial.

(DE:772:6). The court denied the motion for mistrial and the request to interview


33

jurors and proceeded with trial. (DE:772:7-8). Mr. Duperval renewed the motion

and request for juror inquiry at the noon recess. Those motions were also denied.

(DE:772:90).

The Sixth Amendment to the United States Constitution guarantees an

accused the right to trial by jury. That right includes the critical guarantee that the

accused’s trial be held before, and his fate decided by, a panel of impartial,

indifferent jurors. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639 (1961). As the

Supreme Court in Dowd, noted, in the ultimate analysis, only the jury can strip a

man of his liberty or life. Thus, the verdict must be based only on the evidence

developed at trial. Id. at 722 (citing Thompson v. City of Louisville, 362 U.S. 199,

80 S.Ct. 624, 4 L.Ed 2d 654 (1960)). This is true, regardless of the heinousness of

the crime charged, the apparent guilt of the offender or the station in life which he

occupies. Dowd, 366 U.S. at 722. Moreover, the right to be tried before an

impartial tribunal is one of the few rights that is not subject to the doctrine of

harmless error. Oswald v. Bertrand, 374 F.3d 475, 482 (7th Cir. 2004).

To insure the right to a fair trial, the court has the duty to inquire into possible

juror prejudice in those situations when a jury is exposed to some type of media

publicity that potentially affects their impartiality. In this situation, the courts of

appeals have imposed an affirmative duty on the presiding trial judge to inquire to


34

determine the possible prejudicial impact of extraneous media information the jury

may have seen, heard, or read. Voir dire is required if there are “serious questions of

possible prejudice.” United States v. Herring, 568 F.2d 1099 (5th Cir. 1978). For

example, in Herring, Gregg Allman, a prominent rock musician testifying under a

grant of immunity, implicated defendant Herring in narcotics related activity. On

the day following Allman’s testimony, articles appeared in the local newspaper

indicating that, perhaps as a result of his testimony in the case, Mr. Allman was

being heavily guarded, purportedly as a result of a death threat. Id. at 1102. That

morning, defense counsel brought the article to the trial judge’s attention and asked

the court to ask jurors whether they had read the paper, and if so, to make further

inquiry to determine whether it would influence their ability to make an impartial

decision in the case. Over defense counsel’s objection, the trial court declined to

question the jury. Id. In reversing Herring’s conviction, the court held that the

district court committed reversible error by failing to make the appropriate inquiry.

Id. at 1105. The court also noted that the district court’s instructions to the jury

were inadequate where it only instructed the jury to disregard external information

and that the court should have examined each juror separately in the presence of

counsel to determine how much contact the jury members had with the damaging

publicity and how much prejudice to the defendant had resulted from that contact


35

assuming that any had occurred. Id.9

Subsequent decisions are in accord with Herring. United States v. Williams,

809 F.2d 1072 (5th Cir. 1987) held it was reversible error for the trial court not to

inquire of the possible contamination of mid-trial publicity where there was

extensive media coverage, which included front page headlines and a color

photograph of the defendants being led away in handcuffs; and local television and

radio news programs, following testimony that the defendants were involved in drug

deals even during the trial. In reaching its decision, the Court reasoned that the

nature of the material went beyond the record and raised serious questions of

possible prejudice despite the fact that the judge explicitly instructed the jury “not to

read or listen to anything pertaining to this case.” Id. at 1092. See United States v.

Aragon, 962 F.2d 439,446-47 (5th Cir. 1992) (holding the district court abused its

discretion in failing to adequately inquire whether the jury had been tainted and

9 The Herring court noted with approval a procedure recommended by the ABA when extraneous and potentially prejudicial media matter has been brought to the jury’s attention:

If it is determined that material disseminated during the trial goes beyond the record on which the case is to be submitted to the jury and raises serious questions of possible prejudice, the court may on its own motion or shall on motion of either party question each juror, out of the presence of the others, about his exposure to that material. The examination shall take place in the presence of counsel, and an accurate record of the examination shall be kept. ABA Standards relating to Fair Trial and Free Press s 3.5(f) (1968).


36

whether it was prejudicial where, although the jury was told not to read about the

trial, the court was apprised of the existence of a highly prejudicial article that went

well beyond the record and rejected the defendant’s motion for voir dire and made

no inquiry).

Following the selection and impaneling of the jury on March 1, 2012,

extensive media coverage appeared during the ensuing three day recess. Mr.

Duperval promptly requested that the trial judge make inquiry of the jurors to

determine whether they had been exposed to the coverage. The court did nothing.

The court again abdicated its responsibility to undertake an appropriate inquiry

when Ms. Gil brought her situation to the court’s attention. Finally, and worst of

all, the court failed to make any inquiry when the March 7 and March 8, 2012

media flood dealing with the execution of Mr. Joseph’s father, corruption at Haiti

Teleco, Mr. Duperval’s situation, and a variety of other extrajudicial information

directly impacting the case being tried. The court’s refusal to make any inquiry

when it was clearly necessary to insure Mr. Duperval’s right to be tried by a fair,

impartial jury was a clear abuse of discretion. Mr. Duperval’s convictions must be

vacated. Herring, 568 F.2d 1099; Williams, 809 F.2d 1072; Aragon, 962 F.2d 439.


37

ISSUE II

The trial court erred in not charging the jury in accordance with Mr.

Duperval’s proffered theory of defense instruction. The proffered instruction was

a correct statement of the law, supported by the evidence and not adequately

covered by other instructions delivered by the court.

A criminal defendant has the right to a jury instruction on his theory of

defense, separate and apart from instructions given on the elements of the charged

offense. See Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d

54 (1988); United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir.1995). If the

proposed instruction presents a valid defense and there has been “some evidence”

adduced at trial to support the defense, a trial court may not refuse to charge the

jury on that defense. Ruiz, 59 F.3d at 1154. The burden of presenting evidence

sufficient to support a jury instruction on a theory of defense is “extremely low.”

Id. “[T]he defendant is entitled to have presented instructions relating to a theory

of defense for which there is any foundation in the evidence, even though the

evidence may be weak, insufficient, inconsistent, or of doubtful credibility.”

United States v. Lively, 803 F.2d 1124, 1126 (11th Cir.1986) (internal marks

omitted). In reviewing the evidence adduced, the court must view the evidence in

the light most favorable to the accused. Ruiz, 59 F.3d at 1154.


http://web2.westlaw.com/find/default.wl?mt=Florida&db=708&rs=WLW13.01&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2007873362&serialnum=1988025715&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=128BD755&utid=2

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38

The primary underlying theory of the government’s money-laundering

conspiracy and substantive money laundering charges against Mr. Duperval was

that the funds that Mr. Duperval purportedly laundered were the proceeds of the

specified unlawful activity of violations of the “FCPA” 15 U.S.C.§ 782dd(a)(1).

During the course of his trial testimony, Mr. Duperval admitted that although he

had received substantial sums of money from both Terra and Cinergy, the payment

of that money was as a result of him having competently performed a routine

governmental action, i.e., the administration of a contract in accordance with its

terms. (DE:773:16-17). Mr. Duperval's explanation of why he received the

payments brought his receipt of the payments within the exception to the FCPA'S

prohibition on bribery of foreign officials found in 15 U.S.C. § 782-dd(b). That

subsection exempts facilitating payments to expedite or secure the performance of

a routine governmental action by a foreign official, political party, or party

official. Accordingly, Mr. Duperval requested that the court charge the jury in

accordance with the statutory exception and the following theory of defense

instruction:

Defense Proposed Jury Instruction 2

Theory of Defense

However, it is not a violation of the FCPA to pay or provide any facilitating


39

or expediting payment to a foreign official, political party, or party official the

purpose of which is to expedite or secure the performance of a routine

governmental action by a foreign official, political party, or official.

The term "routine governmental action" means only an action which is

ordinarily and commonly performed by a foreign official in

a. obtaining permits, licenses, or other official documents to qualify a person to do business in a foreign country;

b. processing governmental papers, such as visas and work orders;

c. providing police protection, mail pick-up and delivery, or scheduling inspections associated with contract performance or inspections related to transit of goods across country;

d. providing phone service, power and water supply, loading and unloading cargo, or protecting perishable products or commodities from deterioration; or

e. actions of a similar nature.

The term "routine governmental action" does not include any decision by a

foreign official whether, or on what terms, to award new business to or to continue

business with a particular party, or any action taken by a foreign official involved

in the decision-making process to encourage a decision to award new business to

or continue business with a particular party. The court denied the requested instruction. (DE:772:118).


40

The requested theory of defense instruction should have been given. To

begin with, it is a correct statement of the law. The language in the instruction

was extracted verbatim from the statute. Moreover, there was ample evidence in

the record to support the giving of the instruction. Mr. Duperval testified that the

payments were made because he performed a routine governmental function, i.e.,

administering the Terra and Cinergy contracts in accordance with their terms.

(DE:773:16-17). He also testified that only the Director General could enter into

contracts (award new business) or extend contracts (continue business) or

authorize a rate reduction, etc. and that he did not have that authority.

(DE:773:67;130). Finally, the theory of defense was not adequately covered by

the other instructions delivered by the court.

As we have demonstrated, the requested instruction should have been given

by the trial court. The court’s failure to give the instruction flatly deprived Mr.

Duperval of his right to avail himself of a defense based on the language of the

FCPA itself. His convictions must therefore be reversed. See e.g., Mathews, 485

U.S. at 62 (holding even if the defendant denies one or more elements of the

crime, he is entitled to an entrapment instruction whenever there is sufficient

evidence from which a reasonable jury could find entrapment); Ruiz, 59 F.3d 1154

(holding the court’s failure to give a mistake of fact defense instruction constituted


41

reversible error because the defense theory was not adequately covered by the

pattern instructions).

ISSUE III

Five days after the jury returned its verdict against the severed

codefendants, Mr. Esquenazi and Mr. Rodriguez, the Government disclosed for

the first time, the existence of a declaration authored and signed on July 26, 2011

by Jean Max Bellerive, Haiti’s then Prime Minister and acting Minister of Justice

and Public Safety. In his declaration, Prime Minister Bellerive explained the

origins and status of Teleco and disclosed inter alia, that (a) “Teleco is not nor will

be an organization subject to public law”; (b) “Teleco has never been and until

now is not a State enterprise;” and (c) the by-laws of Teleco were never amended

to reflect the Government’s acquisition of Teleco shares and such an amendment

was “essential to allow the State to appoint its representatives to [Teleco’s] Board

of Directors.” (DE:543:1-4).

The official position of the Haitian government set forth in the declaration

undermined the government’s theory of the case against Mr. Duperval (as well as

Mr. Esquenazi and Mr. Rodriguez) in at least two important respects: (1) it

substantially contradicted the government’s position that Teleco was an

“instrumentality” of the Haitian government within the ambit of the proscriptions


42

of the “FCPA”; (2) it established that Teleco and its officers and employees were

not subject to public law, including Haitian anti-bribery laws applicable to public

officials. Moreover, the substance of the declaration contradicted the expert

testimony of Mr. Lissade given at the Esquenazi/Rodriguez trial and which would

be repeated nearly verbatim at Mr. Duperval’s trial.

The declaration appears to have been drafted in response to a letter sent to

Bellerive by an attorney representing Mr. Duperval’s codefendant, Patrick Joseph,

a former Teleco official awaiting trial with Mr. Duperval on the Second

Superseding Indictment in this case. (DE:581-4). Specifically, on July 19, 2011,

the attorney sent a letter to Mr. Bellerive inquiring about the status of Teleco, and

asking whether Teleco “is a private company or a government owned company.”

(DE:581:4). In response, on July 26, 2011, seven days after the letter was sent,

Mr. Bellerive’s office forwarded the declaration to Mr. Joseph’s attorney along

with a cover letter. (DE:581:5;2). The cover letter acknowledged the July 19,

2011 letter and explained that the declaration was in response to that letter: “In

response, The Minister of Justice and Public Safety hereby sends, as a joint

document, the requested declaration.” (DE:581:4).

The government countered by making a beyond inappropriate response to

the declaration that ultimately deprived Mr. Duperval of an essential defense


43

witness and amounted to nothing less than an unbridled denial of his Fifth

Amendment right to due process of law. In its own words the government

explained:

After receiving the letter from Mr. Calli [one of Mr. Joseph’s attorneys], the Government reached out to representatives of the Haitian Government, including Mr. Bellerive, to ascertain the origin and purpose of the July 26th declaration. The Government learned that the letter was actually an internal document created in connection with Teleco’s modernization and was not intended to convey a position that Teleco was not a government entity, as had been interpreted by Mr. Calli (and now Rodriguez and Esquenazi). The Haitian Government reiterated the position it has held throughout the course of this investigation and prosecution—that Haiti Teleco was part of the public administration during the relevant time period. The Haitian Government, and Mr. Bellerive in particular, offered to clarify its position on this issue. As a result of those conversations, the Government assisted Mr. Bellerive in preparing the declaration attached to this response as Exhibit 1 (hereinafter, the “second Bellerive declaration”).

In the second Bellerive declaration, Bellerive stated, in part, that he signed

the first declaration (a) “not know[ing] that it was going to be used in criminal

legal proceedings in the United States;” and (b) “strictly for internal purposes and

to be used in support of the on-going modernization process of Teleco[.]”

(DE:563:1-2). Both the government’s explanation and Bellerive’s statements in

his second declaration, however, are nothing short of disingenuous, border on the


44

nonsensical, and are expressly contradicted by the previous correspondence, which

established that Bellerive signed the first declaration in response to an inquiry

from an attorney representing Patrick Joseph, that it was sent to that attorney and

“not maintained within the Haitian government for “internal purposes.”

The Supreme Court has recognized that a criminal defendant has a

constitutional right to present his own witnesses to establish a defense.

Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019

(1967). Although this right is specifically found in the Sixth Amendment right to

compulsory process, the right is so fundamental to a fair trial that it is guaranteed

by the Due Process Clause of the Fifth and Fourteenth Amendments. Id.

Decisional authority from the Supreme Court and courts of appeal recognize

that various forms of governmental interference or intrusion can deprive the

accused of this right. See e.g. Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34

L.Ed.2d 330 (1972). (defense witness intimidated by remarks of trial judge);

United States v. Henricksen, 564 F.2d 197 (5th Cir. 1977) (defense witness

intimidated by terms of plea bargain); United States v. Hammond, 598 F.2d 1008

(5th Cir. 1979) (defense witness intimidated by remarks of FBI agent); United

States v. Morrison, 535 F.2d 223 (3d Cir.1976) (defense witness intimidated by

remarks by assistant United States Attorney); United States v. Thomas, 488 F.2d


45

334 (6th Cir. 1973) (defense witness intimidated by remarks of secret service

agent involved in the case). Simply put, "substantial government interference with

a defense witness' free and unhampered choice to testify violates due process"

rights of the defendant. United States v. Henricksen, 564 F.2d at 199.

The remedy to cure a due process violation of this nature which courts have

recognized as harmful per se, see e.g. United States v. Morrison, 535 F.2d 223 (3d

Cir.1976) and United States v. Thomas, 488 F.2d 334 (6th Cir. 1973) (both

concluding that Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972)

does not require a finding of prejudice in order to reverse a conviction because of

this type of due process violation) is reversal of the convictions without regard to

prejudice to the defendant. See also United States v. Hammond, 598 F.2d 1008

(5th Cir. 1979), United States v. Goodwin, 625 F.2d 693, 703 (5th Cir. 1980), cert

denied, 484 U.S. 873, 108 S.Ct. 209, L.Ed.2d 160 (1987). Demps v. Wainwright,

805 F.2d 1426 (11th Cir. 1986).

The government's reaction to the first Bellerive declaration is precisely the

type of governmental interference with a favorable defense witness that the courts

have recognized as a substantial due process violation. As soon as the government

learned of the declaration, they immediately contacted the government of Haiti to

enlist it's assistance in convincing Prime Minister Bellerive to recede from his


46

officially stated position that contradicted the government's theory of the legal

status of Teleco. Beyond that, the government was kind enough to assist Prime

Minister Bellerive in revising his declaration to reflect inter alia that Teleco was

part of the "public administration" of Haiti. The choice of words was not

coincidental. The "public administration" terminology was parroted at both the

Esquenazi/Rodriguez trial and Mr. Duperval's trial by Mr. Lissade and became the

linchpin of the government’s argument that payments to Teleco officials were the

subject of proscriptions contained in the “FCPA”.10

But for the government’s unjustified interference with Prime Minister

Bellerive, Mr. Duperval could have availed himself of a favorable witness to

demonstrate quite simply that Teleco was not a government instrumentality and he

was not a foreign official. Establishing either at trial would have demonstrated

that the monies he received were not proceeds of a specified unlawful activity, i.e.,

a violation of the FCPA or Haitian bribery laws and thus undermined the

necessary predicate for his conviction. However, because of the government's

10 The government’s response to the declaration, its disingenuous explanation as to why it was prepared, its enlistment of the Haitian government to “remedy” the situation, the use of the government’s own words/terminology in the second declaration, and the government’s “assistance” to Mr. Bellerive support the compelling inference he was pressured to change the substance of the first declaration to assimilate the government’s theory of the case. It is difficult to imagine a clearer example of governmental interference with a defense witness.


47

interference the favorable testimony of this witness was lost. Mr. Duperval's

convictions must now be reversed. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct.

1920, 1923, 18 L.Ed.2d 1019 (1967); Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34

L.Ed.2d 330 (1972); United States v. Henricksen, 564 F.2d 197 (5th Cir. 1977);

United States v. Hammond, 598 F.2d 1008 (5th Cir. 1979).

ISSUE IV

The evidence was insufficient to prove beyond a reasonable doubt that Haiti

Teleco was a government instrumentality and that Jean Rene Duperval was a

foreign official as required to prove a charge of money laundering related to the

proceeds of a violation of the Foreign Corrupt Practices Act (“FCPA”).

The FCPA was primarily designed to protect the integrity of American

foreign policy and domestic markets. Lamb v. Phillip Morris, Inc., 915 F.2d 1024,

1029 (6th Cir. 1990). The FCPA thus prohibits making corrupt payments to a

“foreign official” or a “foreign political party or official thereof or any candidate

for political office” for the purpose of influencing the acts or decisions of the

foreign official in his official capacity, or inducing the foreign official to influence

an act or decision of the government or its instrumentality in order to obtain or

retain business on behalf of a private concern. 15 U.S.C. § 78dd-2(a)(1)-(2).

Congress, in turn, defined the term “foreign official” as “any officer or employee


48

of a foreign government or any department, agency, or instrumentality thereof” or

“any person acting in an official capacity for or on behalf of any such government

or department, agency, or instrumentality[.]” 15 U.S.C. § 78-dd-2(h)(2)(A).

Teleco is not a department or agency of the Haitian government and the

government concedes as much. The second superseding indictment instead labeled

Teleco as a “stateowned national telecommunications company,” qualifying it as

an “instrumentality” of the Haitian government. (DE:685). The jury instructions

were based on the same “instrumentality” theory. The FCPA, however, does not

define “instrumentality” of a foreign government.

The only court that has attempted to construe the term in the context of the

FCPA applied the term “instrumentality” to entities that perform governmental

functions. See United States v. Carson, No. SACR 09–00077–JVS, 2011 WL

5101701, *5 (C.D. Cal. May 18, 2011). No evidence was presented at trial that

Haiti Teleco performed a governmental function. To the contrary, phone service,

specifically cellular service is provided by purely private carriers as well as

Teleco.

A. The FCPA Must Be Construed to Exclude Payments Made to State-Owned Business Enterprises that Do Not Perform Governmental Functions.


49

As noted above, the FCPA does not define “instrumentality” of a foreign

government, and nowhere in the statute are state-owned companies or government

ownership of the stock of a privately-formed business discussed as possible

instrumentalities. The Dictionary Act, 1 U.S.C. §§ 1-6, likewise offers no

definition of “instrumentality,” and “instrumentality” certainly does not have an

established meaning at common law.

The standard dictionary definition of “instrumentality” offers little help.

Black’s Law Dictionary, for example, defines “instrumentality” as “[s]omething by

which an end is achieved; a means, medium, agency.”11 But no ends or means are

specified in the FCPA. The term thus could potentially encompass: 1) programs or

businesses that a government has invested in, provided funding for, or licensed,

like AIG or GM; 2) businesses that have received government tax breaks or other

incentives, like nearly every company in the United States; 3) an entire regulated

industry, like agriculture, airlines, banking, or telecommunications; 4) government

contractors; or 5) completely private businesses that step in to take the place of

former government-run programs. In short, based on dictionary definitions alone,

an instrumentality could include almost anything that directly or indirectly furthers

some unspecified purpose (governmental or not) that benefits from government

11 Black’s Law Dictionary at 801 (6th ed. 1990).


50

action or inaction. However, it is the statutory context in which a term appears

that controls. See Small v. UnitedStates, 544 U.S. 385, 396-98 (2005).

1. The Statutory Context of the FCPA Indicates that “Instrumentality” Must Be Construed to Exclude Both State-Owned Business Enterprises that Do Not Perform Governmental Functions and Employees of the Same.

The statutory context of the FCPA indicates that “instrumentality” must be

read to exclude both state-owned business enterprises that do not perform

governmental functions, as well as their employees, because: 1) the FCPA is

aimed at foreign governments; and 2) the term instrumentality is to be read in line

with government departments and agencies.

The context of the FCPA reveals that Congress was particularly focused on

the evils of bribing foreign public officials. In addition to the prohibition covering

“foreign officials,” the statute also prohibits corrupt payments to “any foreign

political party or official thereof or any candidate for foreign political office.” 15

U.S.C. § 78dd-2(a)(2). And within the definition of “foreign official,” Congress in

1998 added officers and employees of “public international organizations.”

Congress also created an exception to the FCPA for “facilitating or expediting

payment[s]” made to secure “routine governmental action,” 15 U.S.C. § 78dd-2(b)

(emphasis added). In short, every time Congress specified the evils that the FCPA


51

is meant to address, it identified political, public, or governmental actors, not

state-owned enterprises that do not perform a political, public, or governmental

function.

The word “instrumentality,” moreover, should be read narrowly not only in

light of the word it seeks to define (foreign official), but also in light of the words

it follows: a governmental “department” or “agency.” Norfolk & Western R. Co. v.

Train Dispatchers, 499 U.S. 117, 129, 111 S.Ct. 1156, 1163-64 (1991) (“Under

the principle of ejusdem generis, when a general term follows a specific one, the

general term should be understood as a reference to subjects akin to the one with

specific enumeration.”). All three neighboring words, “official,” government

“department,” and government “agency” suggest a specific governmental position,

subdivision, or function.12

As such, the phrase governmental “instrumentality” should be read to either:

1) be a governmental subdivision; or 2) require the performance of some

governmental function. There is nothing in the language of the FCPA to suggest

that state-ownership or control of an entity is enough. For the same reason,

employees of a state-owned enterprise should not be deemed part of the relatively

small class of foreign officials unless the enterprise is performing a governmental

12 Cf. 18 U.S.C. §§ 112 & 1116.


52

function similar to a political subdivision.13 Cf. Hall v. American National Red

Cross, 86 F.3d 919, 921 (9th Cir. 1996) (“{t}he use of the word ‘instrumentality’

in a general, inclusionary definition does not indicate an intention to encompass

entities which are not part of the government, even though they may be

governmental ‘instrumentalities’ in some sense.”).

a. Legislative History Supports Construing the FCPA to Exclude State-Owned Business Enterprises that Do Not Perform Governmental Functions.

When a statute is as vague or ambiguous as the FCPA, other interpretative

tools may be used, including an examination of the act’s purpose and its

legislative history. See Garcia v. United States, 469 U.S. 70, 75-76 n.3, 105 S.Ct.

479, 482-83 (1984).

As detailed in Professor Michael J. Koehler’s declaration filed in United

States v. Carson, the legislative history of the FCPA is both extensive and

13 See, e.g., In re Grand Jury Subpoena Dated August 9, 2000, 218 F. Supp. 2d 544, 557 (S.D.N.Y. 2002) (holding that FCPA involves “foreign public officials” and “by definition, violations of the FCPA touch upon ‘official acts’ of sovereign nations, and every investigation of a suspected violation of the FCPA has the potential to impugn the integrity of the officials of foreign sovereigns”); United States v. Blondek, 741 F. Supp. 116, 120 (N.D. Tex. 1990) (concluding that “foreign officials” are a “small class of persons” and a “well-defined group”).


53

complex.14 Although the legislative history itself also does not offer a clear

definition of the term “instrumentality,” several salient points stand out:

1. The events discussed by Congress that eventually gave rise to the FCPA

concerned allegations that domestic companies had made payments to traditional

foreign government officials or foreign political parties.15

2. Congress used the terms “foreign government official,” “foreign public

official,” and “foreign official” interchangeably during discussions on the bills

that eventually became the FCPA.16

3. At the time it was considering the bills that eventually became the FCPA,

Congress was aware of questionable payments to state-owned entities. Several

draft competing bills specifically included state-owned entities, but the bills that

eventually became the FCPA did not.17

4. In 1998, in accordance with the adoption of the Organization for

Economic Cooperation and Development Convention on Combating Bribery of

Foreign Public Officials in International Business Transactions (OECD

14 United States v. Carson, No. SA CR 09-00077-JVS (C.D. Cal.), DE 305 (“Koehler Dec.”); see also Ex. I to Defendant Rodriguez’s Motion for Release Pending Appeal. See Territory of Alaska v. American Can Company, 358 U.S. 224, 226-27 (1959) (a court can take judicial notice of legislative history). 15 Koehler Dec. at ¶¶ 16(a), 29, 33, 39, 42-43, 49, 58-59, 75-77, 91, 159, 165- 66, 197, 222, 236, 243, 252, 269, 301, 327, and 336. 16 Koehler Dec. at ¶¶ 16(b), 76, 108, 183, 238, 253, 266, 273, 275, and 336.


54

Convention), Congress amended the definition of “foreign official” to include

“public international organizations.” Congress did not amend the definition to

include officials of “public enterprises,” despite the fact that that term was

included and defined in the OECD convention.18

The legislative history thus supports construing the term “instrumentality”

to include only those entities similar to departments and agencies that perform a

governmental function, rather than businesses such as Teleco that are merely

majority owned or controlled by a foreign government.

b. The Use of the Term “Instrumentality” in Other Statutes Supports Construing the FCPA to Exclude State-Owned Business Enterprises that Do Not Perform Governmental Functions.

When a term is ambiguous, courts may look to the use of a similar term in

other statutes to help determine the meaning of the ambiguous term. See Robinson

v. Shell Oil Co., 519 U.S. 337, 341-42, 117 S.Ct. 843, 846-47 (1997).

Several statutes that use but do not define the word “instrumentality” have

construed the term narrowly to require more than just governmental ownership,

regulation, or funding. In the Employee Retirement Income Security Act (ERISA),

for example, certain “governmental plan[s]” are exempt from its provisions. The

17 Koehler Dec. at ¶¶ 16(c),(d),(f), 41, 79, 95, 148-51, 162, 230-31, and 279-80. 18 Koehler Dec. at ¶¶ 17, 385-89, 407, 428, and 435-37. See also DE 283 at


55

statute defines such plans as those established by “the Government of the United

States, by the government of any State or political subdivision thereof, or by any

agency or instrumentality of any of the foregoing.” 28 U.S.C. § 1002(32). The

term “instrumentality” in ERISA has been construed by courts to be limited to

those entities that perform a governmental function. See Koval v. Washington

County Redevelopment Authority, 574 F.3d 238, 240-41 (3d Cir. 2009); Rose v.

Long Island R.R. Pension Plan, 828 F.2d 910, 917-18 (2d Cir. 1987). Similarly,

the Supreme Court has construed the word “instrumentalities or agencies” under

the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, to require a showing of

the day-to-day power to direct the detailed physical performance of a contractor.

In United States v. Orleans, 425 U.S. 807, 814-16, 96 S.Ct. 1971, 1976-1978

(1976), the Court rejected an argument the mere provision of funds and regulation

by the government were sufficient, standing alone, to turn a contractor into an

“instrumentality.”19 Id. at 815-16.

In contrast, when Congress intended to include state-owned entities in the

12-13. 19 Similar examples abound. See, e.g., Americans with Disabilities Act (ADA), 42 U.S.C. § 12131(1) & (B) (defining “public entity” as “any department, agency, special purpose district, or other instrumentality of a State or States or local government[.]”); Edison v. Douberly, 604 F.3d 1307, 1309-10 & n.4 (11th Cir. 2010) (holding that “the term ‘instrumentality of a State’ refers to governmental units or units created by them”).


56

definition of “instrumentality,” it knew how to do so. Indeed, in enacting the

Foreign Sovereign Immunities Act (FSIA), Congress specifically included entities

a “majority of whose shares or other ownership interest is owned by a foreign

statute or political subdivisions” within the definition of “agency or

instrumentality of a foreign state.” 28 U.S.C. § 1603(b). Likewise, in the Dodd–

Frank Wall Street Reform and Consumer Protection Act, Pub.L. No. 111–203, 124

Stat. 1376, § 1054 (2010), codified at 15 U.S.C. § 78m(q)(1)(B), Congress

specifically defined “foreign government” to include “a department, agency, or

instrumentality of aforeign government, or a company owned by a foreign

government, as determined by the Commission.” Id. (emphasis added). The

presence of such explicit definitions in FSIA and Dodd-Frank regarding foreign-

owned entities indicates that Congress knew how to include such language in the

FCPA, but chose not to do so. See Central Bank of Denver v. First Interstate

Bank, 511 U.S. 164, 176-77, 114 S.Ct. 1439, 1448-49 (1994) (“Congress knew

how to impose aiding and abetting liability when it chose to do so,” but it did not

use the words “aid” and “abet” in the statute, and, hence, did not impose aiding

and abetting liability).


57

That absence in the FCPA’s definition of “instrumentality” is significant

and warrants construing “instrumentality” narrowly. Thus, state-owned or state-

controlled entities that are not political subdivisions that perform governmental

functions should not be grafted into the definition “instrumentality.” See Dole

Food Co. v. Patrickson, 538 U.S. 468, 475-76, 123 S.Ct. 1655, 1660-61 (2003)

(contrasting the absence of language in FSIA with that used in other statutes and

concluding that the absence of language was instructive).

c. The Rule of Lenity Requires the Court to Construe the FCPA to Exclude State-Owned Business Enterprises that Do Not Perform Governmental Functions.

The rule of lenity requires that a criminal statute be strictly construed in

favor of the accused so as to apply only to conduct “clearly covered.” United

States v. Santos, 553 U.S. 507, 514, 128 S.Ct. 2020, 2025 (2008); United States v.

Lanier, 520 U.S. 259, 266; 117 S.Ct. 1219, 1225 (1997). Where, as here, a court is

left to guess as to what Congress intended, the rule of lenity should be applied. See

Reno v. Koray, 515 U.S. 50, 65, 115 S.Ct. 2012, 2029 (1995). Ties go to the

defendant. Santos, 553 U.S. at 514. Put another way, unless the Government’s

position is “unambiguously correct,” the Court must resolve the ambiguity in Mr.

Duperval’s favor. See United States v. Granderson, 511 U.S. 39, 54, 114 S.Ct.

1259, 1267-68 (1994).


58

The Government certainly has not demonstrated that its position on the

meaning of “instrumentality” is unambiguously correct. To the contrary, based on

the statutory context, legislative history, and similar uses of the term in other

statutes, the Government cannot do so. As such, the rule of lenity requires a

narrow construction of the FCPA that excludes transactions that the government

relies on to demonstrate the funds purportedly laundered were proceeds of a

specified unlawful activity.

2. In the Alternative, the FCPA Is Unconstitutionally Vague as Applied to Mr. Duperval.

The Due Process Clause of the Fifth Amendment “requires that a penal

statute define [a] criminal offense with sufficient definiteness that ordinary people

can understand what conduct is prohibited and in a manner that does not

encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461

U.S. 352, 357 (1983). A statute is unconstitutionally vague if people “of common

intelligence must necessarily guess at its meaning and differ as to its application.”

Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926); see also United States v.

Biro, 143 F.3d 1421 (11th Cir. 1998). The “touchstone” of fair warning is whether

it was “reasonably clear at the relevant time” that a defendant’s conduct was

criminal under “the statute, either standing alone or as construed.” United States v.


59

Lanier, 520 U.S. 259, 267 (1997).

As illustrated above, based on dictionary definitions alone, an

instrumentality could include almost anything that accomplishes some unspecified

purpose (governmental or not) that in some form benefits from government action

or inaction. Thus, it certainly is not clear from the face of the FCPA that

employees of business enterprises in which a government holds some sort of

ownership interest qualify as “foreign officials.”

If Teleco was a purely private enterprise, there would be no FCPA violation,

no violation of Haitian bribery laws, the predicate acts for the money laundering

would disappear. But the statutory definition provides no basis for Mr. Duperval

to know whether Teleco or its employees were subject to the FCPA (potentially

rendering payments may be criminal) or not (rendering the payments non-

criminal). Consequently, “instrumentality” is a vague term that escapes

comprehension by people of common intelligence - a point echoed by many FCPA

commentators. See, e.g., Koehler, The Façade of FCPA Enforcement, 41 Geo. J.

Int’l L. at 998 (criticizing “foreign official” definition as vague and ambiguous);

B. The Government Failed to Present Any Evidence that Haiti Teleco Performed a Governmental Function Similar to that Performed by Political Subdivisions Like a Department or Agency.


60

The Government’s case regarding Haiti Teleco’s qualification as an

“instrumentality” under the FCPA rested on four categories of evidence: 1) the

testimony of Gary Lissade; 2) the testimony of various individuals that Haiti

Teleco was state-owned or nationalized; 3) documents evidencing Haitian

governmental appointments to Haiti Teleco’s Board of Directors and position of

Director General; and 4) an alleged insurance application. None of these

categories, however, whether viewed in isolation or combination, establish that

Teleco was an “instrumentality” performing a governmental function akin to a

department or agency under the FCPA.

Mr. Lissade’s only opined that Haiti Teleco was part of “the public

administration” of Haiti – a term that is different from the FCPA’s

“instrumentality.” Otherwise, Mr. Lissade’s testimony was focused on the Haitian

government’s control over the appointment of officials to the Board of Directors

and the Director General position (a right the government had with respect to the

board of directors since the 1968 inception of the company as an admittedly

private enterprise), benefits Haiti Teleco received (again dating back to the 1968

formation of the private company); Government ownership, via the National Bank,

of 97% of the stock of Haiti Teleco; and occasional references to Haiti Teleco as a

S.A.M. (even though no formal legal act was ever taken to transform Haiti Teleco


61

into an S.A.M., as was required by Haitian law to qualify as a state-run entity).

This evidence, however, does not establish that Haiti Teleco performed a

governmental function akin to a department or agency under the FCPA.

Moreover, this instrumentality theory ignores evidence that demonstrated Teleco

did not provide a government function and operated as a private company.

Cellular phone service was also provided by a number of nonstate owned

companies. Teleco can be sued in its own name, can bring a lawsuit in its own

name, pays for and is represented by the attorneys of its choosing, is not funded by

the Haitian annual budget, opened a private pension fund account in the United

States, its employees do not receive the same benefits as government employees,

and to overcome cash flow issues it has borrowed money or been funded by

private concerns including Terra and Cinergy. In addition, it contracts on its own

behalf, the Haitian government is neither a party to Teleco’s contracts, or liable for

a breach. (DE:771:113).

C. The Government Failed to Negate the Applicable Statutory Exception/Affirmative Defense

Finally the government failed to prove the non-applicability of the

statutory exception/affirmative defense raised by Mr. Duperval's trial

testimony. As we have explained supra, Mr. Duperval testified that in


62

exchange for the money he received, he did nothing more than perform a

routine governmental action and thus the exception to an FCPA violation

found in 15 U.S.C. § 782-dd(b) applied. That showing then shifted the

burden to the government to prove beyond a reasonable doubt the non-

applicability of the statutory exception/affirmative defense. See e.g. United

States v. Kloess, 251 F.3d 941 (11th Cir. 2001). This it failed to do and Mr.

Duperval's convictions must therefore be reversed.

ISSUE V

The 108 month sentence imposed by the district court was both procedurally

and substantively unreasonable.

Mr. Duperval’s sentence was procedurally unreasonable because the district

court erred in its determination that the following guideline sentencing

enhancements should be applied.

To begin with, an additional two levels were added pursuant to U.S.S.G. §

2B1.1(b)(9)(B) because according to the government, a substantial part of the

fraudulent scheme was committed outside the United States. The guideline does

not define “substantial,” nor apparently has any court had occasion to consider the

precise definition. However, “language in the Sentencing Guidelines is to be given

its plain and ordinary meaning. Further, where the guidelines provide no


63

indication as to a particular application the Court looks to the language and

purpose of the Sentencing Guidelines for instruction.” United States v. Pompey, 17

F.3d 351, 354 (11th Cir.1994) (citations omitted).

Mr. Duperval was charged with money laundering, not a violation of the

“FCPA”. The government alleged that the specifics of his offense of conviction

was the laundering of money through two companies, both of which were located

in the United States, i.e., Crossover Records and Telecom Consulting. The source

of the funds was purportedly disguised consulting agreements entered into in the

United States. The funds originated with United States corporations, i.e., Cinergy

and Terra, from their bank accounts in the United States and were deposited into

other bank accounts in the United States in the name of Telecom Consulting or

Crossover Records. The funds were then transferred to Mr. Duperval’s account in

the United States or to other entities in the United States for his benefit. Thus, all

alleged laundering activity occurred only within the United States. The

application of this enhancement was therefore unwarranted and erroneous. A

three level enhancement based upon role in the offense pursuant to U.S.S.G. §

3B1.1(b) was included in the guideline calculation urged by the government and

determined by the court. The application of a role enhancement was

inappropriate. In the alternative, if a role enhancement was to be applied it should


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have been a two level enhancement as opposed to the three level enhancement

imposed.

Under § 3B1.1(b) of the guidelines, the district court is authorized to apply a

three-level enhancement to the base offense level if a defendant was “a manager or

supervisor ... and the criminal activity involved five or more participants or was

otherwise extensive.” U.S.S.G. Manual § 3B1.1(b). In determining the nature of

Mr. Duperval’s role the district court could consider “the exercise of decision

making authority, the nature of participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a larger share of the fruits of the

crime, the degree of participation in planning or organizing the offense, the nature

and scope of the illegal activity, and the degree of control and authority exercised

over others.” U.S.S.G. § 3B1.1 cmt. n.4. Under the guidelines a participant must

be “criminally responsible for the commission of the offense .” U.S.S.G. § 3B1.1,

cmt. n. 1.

The evidence did not establish that Lionel Duperval and Marguerite

Grandison were willful criminal participants. There was nothing to suggest that

Lionel Duperval had any knowledge, direct or indirect, of any underlying

criminality of the funds. The money went into an account in the name of


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Crossover Records, after which it was transferred from Crossover to Mr.

Duperval's personal account.

Furthermore, although Marguerite Grandison was the nominee president or

sole nominee officer of Telecom, there is precious little to suggest that she was a

criminal participant in this venture. What the evidence did show was that Mr.

Dickey at Terra had formed Telecom Consulting and then a representative of the

bank went to Ms. Grandison’s home and had her sign the appropriate account

documents. Beyond that, there was nothing to suggest that she had actual

knowledge of the fact that the money was coming from unlawful activity or that

she should have reasonably suspected such.

Here, neither Ms. Grandison nor Lionel Duperval assisted Mr. Duperval in

the scheme of money laundering and there is no evidence that they had any

knowledge. Their passive involvement in the offense is comparable to the

recipient of a Social Security card or the customers of drug dealers. See United

States v. Barrie, 267 F.3d 220 (3d Cir. 2001); United States v. Egge, 223 F.3d

1128, 1133-34 (9th Cir. 2000). Accordingly, Ms. Grandison and Lionel Duperval

cannot be said to have been criminally responsible. Given their noninvolvement,


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an enhancement for role in the offense pursuant to 3B1.1(b) is inappropriate.20

In the alternative, if an enhancement based on role in the offense was

appropriate, a two level as opposed to a three level enhancement should have been

applied. A three level enhancement applies only where the criminal activity

involved five or more participants or is otherwise extensive.21

The trial court also erroneously applied a two-level enhancement based on

Mr. Duperval’s purported obstruction of justice pursuant to U.S.S.G. § 3C1.1.

In order for an enhancement pursuant to 3C1.1 to apply, the defendant must

consciously act with the purpose of obstructing justice. See United States v.

Campa, 529 F.3d 980, 1016 (11th Cir. 2008). There is no evidence that Mr.

Duperval consciously acted with the purpose of obstructing justice. The

arguments for enhancing Mr. Duperval involved his allegedly having testified

falsely at trial and having made false pre-indictment statements to Special Agent

Charles Hyacinthe.

20 Clearly, Mr. Duperval exercised no supervisory authority over Mr. Antoine or the executives at Terra or Cinergy. 21 Neither Robert Antoine, Mr. Duperval’s predecessor at Haiti Teleco, nor Patrick Joseph, the former Director General of Teleco received an enhancement for role in the offense even though Mr. Antoine recruited and/or supervised other individuals who were clearly criminally involved with Antoine, i.e., Juan Diaz and Jean Fourcand. Patrick Joseph involved his father, Venel Joseph, who was the former chairman of the Central Bank, had Antoine picking up and delivering checks to him and utilized and directed Juan Diaz with respect to certain transactions.


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Perjury has been defined as “false testimony concerning a material matter

with the willful intent to provide false testimony, rather than as a result of

confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87,

94, 113 S.Ct. 1111, 1116, 122 L.Ed.2d 445 (1993). The application of the

enhancement is not appropriate based on Mr. Duperval’s trial testimony. Notably,

Mr. Duperval never denied receiving money. Mr. Duperval never disputed the

amounts of money he eventually recovered from Telecom Consulting or Crossover

Records as a result of payments made by Terra and Cinergy. At trial he only

offered an interpretive explanation as to why he received the money. He

explained that in his view he did nothing beyond ensuring that Terra and Cinergy

got nothing more or nothing less than they were entitled to. He simply

administered the contracts thereby performing only a routine function that neither

resulted in the award of new business nor conferred a business advantage on Terra

or Cinergy. There is no evidence to support a finding that Mr. Duperval’s

explanation was made with the “willful intent to provide false testimony” required

to constitute perjury.

Conduct covered by § 3C1.1 also includes “providing a materially false

statement to a law enforcement officer that significantly obstructed or impeded the

official investigation or prosecution of the instant offense.” Id. § 3C1.1, comment.


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(n.4(g)). An example of conduct not ordinarily covered by § 3C1.1 includes

“making false statements, not under oath, to law enforcement officers, unless

Application Note 4(g) ... applies.” Id. § 3C1.1, comment. (n.5(b)). Mr. Duperval

provided an informal statement (he was not under oath) to Special Agent Charles

Hyacinthe in Haiti in 2005 at which time he admitted to receiving $150,000 and

the source of the money, Cinergy as well as $10,000 and a Rolex watch from

Terra. (DE:772:26). Any inaccuracy in the amount received by no means

significantly obstructed or impeded the overall scope of the investigation. The

government was never misled and always had access to the corporate documents

which would establish the exact amount of money Mr. Duperval received. It did

not cause further substantial investigative efforts. Compare U.S. v. Achille, 277

Fed.Appx. 875 (11th Cir. 2008). Any discrepancy in the amount received cannot

be characterized as a significant obstruction or impediment in the investigation.

In summary, Mr. Duperval offered an explanation as to why the payments

were made. That explanation was substantively supported by rather than

contradicted by the documentary evidence introduced at trial including contracts,

invoices, emails, other correspondence and the like. Furthermore, the court never




69

made a specific finding that Mr. Duperval willfully perjured himself.22 See United

States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 1117–18 (1993) (the district

court must make an independent factual finding that the defendant willfully gave

perjured testimony to support a finding of obstruction of justice under § 3C1.1).

Under these circumstances, the application of the enhancement provided for by §

3C1.1 was unjustified.

The district court’s sentence was substantively unreasonable based on its

failure to properly apply the factors mandated by 18 U.S.C. §3553(c). When

reviewing a district court’s application and consideration of the § 3553(a) factors,

the court must evaluate whether the district court considered the parties' arguments

and had a reasoned basis for imposing the sentence. See Rita v. United States, 551

U.S. 338, 356 (2007). “The review for substantive unreasonableness involves

examining the totality of the circumstances, including an inquiry into whether the

statutory factors in §3553(a) support the sentence in question.” United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). “A district court abuses its

discretion when it ... weighs those factors unreasonably, arriving at a sentence that

does not achieve the purposes of sentencing as stated in § 3553(a).” United States

v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc ).

22 The court merely states “[i]t is perjurious, in my view, and I think it justifies the





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At sentencing, Mr. Duperval urged, inter alia, that a downward variance was

appropriate to avoid unwarranted disparity between defendants sentenced in

similar or related cases and given his own personal characteristics, history, etc.

The imposition of a 10 month sentence resulted in an unwarranted

sentencing disparity when compared to other individuals charged in “FCPA”

based cases and as compared to his co-defendants with similar roles in this case.

The money laundering scheme of which Mr. Duperval was convicted was

predicated on a theory that the funds were generated by violations of the “FCPA”.

The average sentence in “FCPA” cases nationwide has been two years. The

highest sentence ever imposed was fifteen years on Mr. Esquenazi in this case.

Mr. Duperval’s culpability is less significant than Mr. Antoine who was his

predecessor as Director of International Affairs at Haiti Teleco and who also

accepted money from Cinergy and Terra for the performance of his duties. His

culpability is also more comparable to that of Patrick Joseph, the Director General

of Haity Teleco. Prior to his cooperation, Mr. Antoine was sentenced to 48

months. (DE:182). Mr. Joseph has since been sentenced to twelve months and

one day in prison. (DE:845).

The amount of money Mr. Duperval received is a fraction of that received

obstruction of justice.” (DE:850:16).


71

by Mr. Antoine and Mr. Joseph. Mr. Antoine was convicted of receiving $1.5

million, an amount three times greater than the $497,000 received by Mr.

Duperval. Patrick Joseph was held responsible for $2.3 million, an amount almost

five times greater than that received by Mr. Duperval.

In addition, neither Robert Antoine nor Patrick Joseph received an

enhancement for role in the offense, yet Mr. Duperval received a three level

enhancement for being a leader or organizer in criminal activity involving five or

more participants. As explained supra, both Antoine and Joseph were prime

candidates for role enhancements. Mr. Duperval was not.

In the last analysis, the 108 month sentence imposed on Mr. Duperval was

contraindicated by any reasonable application of the §3553 factors and was far

greater than necessary to achieve the statutory sentencing objectives.

ISSUE VI

Where, as here, the prejudice affects multiple aspects of the trial, the Court

does not parse the improprieties, and review them individually - under varying

standards - but rather for their effect on the defendant's substantial rights. The

Court considers the prejudice cumulatively, to determine if the cumulative effect of

the errors denied the defendants a fair trial. See United States v. Hands, 184 F.3d

1322, 1334 (11th Cir. 1999) (“We assess not the prosecutorial misconduct alone,


72

but the combined impact of [all] errors on the verdict”); United States v. McLain,

823 F.2d 1457, 1462 (11th Cir. 1987) (even if some errors would not in and of *53

themselves have warranted reversal, reversal is mandated where cumulative effect

of errors “denied the defendants a fair trial”); United States v. Labarbera, 581

F.2d 107, 110 (5th Cir. 1978) (same).

CONCLUSION

Based upon the foregoing argument and citations of authority, the

Court should vacate the defendant’s convictions and remand for the entry of a

judgment of acquittal or, in the alternative, for a new trial or resentencing.

Respectfully submitted, /s/ John E. Bergendahl John E. Bergendahl Florida Bar No. 327761 Counsel for Appellant Duperval 25 S.E. 2nd Avenue, Suite 1105 Miami, Florida 33131-1605 Tel. No. (305) 536-2168 Facsimile: (305) 536-2170 E-mail: [email protected]


mailto:[email protected]

73

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitation set forth in

FRAP 32(a)(7)(B), and that according to the program (WORD) on which it is

prepared it contains 13,999 words.

By: /s/ John E. Bergendahl John E. Bergendahl

CERTIFICATE OF SERVICE I CERTIFY that a copy of the foregoing was served by mail this 4th

day of February, 2013 upon Kirby Heller, of the Appellate Section of the U.S.

Department of Justice, 950 Pennsylvania Avenue, N.W., Room 1263, Washington

DC 20530-0009.

By: /s/ John E. Bergendahl John E. Bergendahl


u.s. v. duperval (duperval appellate brief)

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