United States v. Duperval

Citation777 F.3d 1324
Decision Date09 February 2015
Docket NumberNo. 12–13009.,12–13009.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Jean Rene DUPERVAL, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Kirby A. Heller, U.S. Department of Justice, Washington, DC, Anne Ruth Schultz, U.S. Attorney's Office, Miami, FL, for PlaintiffAppellee.

John E. Bergendahl, Law Offices of John E. Bergendahl, Miami, FL, for DefendantAppellant.

Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:09–cr–21010–JEM–4.

Before WILLIAM PRYOR and JORDAN, Circuit Judges, and JONES,* District Judge.

Opinion

WILLIAM PRYOR, Circuit Judge:

This appeal of criminal convictions involving money laundering and foreign bribery presents issues of exposure of jurors to publicity; the sufficiency of the evidence that a telephone company was an “instrumentality” of a foreign government, 15 U.S.C. § 78dd–2(h)(2)(A) ; whether the administration of a multi-million dollar contract is “routine governmental action,” id. § 78dd–2(h)(4)(A) ; whether the government interfered with a witness when it obtained a clarifying declaration from that witness; and four issues about the application of the United States Sentencing Guidelines. Jean Rene Duperval appeals both his convictions of two counts of conspiring to commit money laundering, 18 U.S.C. § 1956(h), and 19 counts of concealment of money laundering, id. § 1956(a)(1)(B)(i), and his sentence of imprisonment of 108 months followed by three years of supervised release. Duperval worked as the Director of International Affairs at Telecommunications D'Haiti, a company owned by the government of Haiti. Duperval participated in two schemes in which international companies gave him bribes in exchange for favors from Teleco. Duperval's arguments fail. We affirm.

I. BACKGROUND

We divide our discussion of the background in two parts. First, we explain the two schemes to provide bribes to Duperval. Second, we explain the charges against Duperval and the relevant portions of Duperval's trial.

A. The Two Schemes to Provide Bribes to Duperval.

From June 2003 to April 2004, Duperval was the Assistant Director General and Director of International Affairs for Teleco. In that role, Duperval managed contracts with foreign telecommunication companies. Duperval participated in two schemes in which companies provided him with payments in exchange for favors from Teleco.

The first scheme involved Terra Telecommunications Corporation and its representatives, Joel Esquenazi and Carlos Rodriguez. Robert Antoine served as the Director of International Affairs at Teleco before Duperval and had an agreement with Terra in which Antoine reduced amounts owed to Teleco and Terra paid Antoine half of the reduction. Shortly after Duperval was named the Director of International Affairs, he began to receive these bribes. Duperval also received $10,000 and a Rolex watch for his assistance in renewing the contract with Terra.

The second scheme involved Cinergy Telecommunications, Inc., and its representatives, Washington Vasconez Cruz, Cecilia Zurita, and Amadeus Richers. While Antoine worked at Teleco, he helped Cinergy enter into an agreement with Teleco, and Cinergy paid Antoine about $150,000 as a reward. After Teleco fired Antoine, Cinergy hired him as a consultant. In August 2003, the agreement between Cinergy and Teleco was about to expire, and Cinergy was concerned that Teleco would not renew the contract. Antoine met with Duperval and offered Duperval 50 percent of his consulting fee if Teleco renewed the contract. Duperval agreed to help but demanded 60 percent. Teleco maintained its contract with Cinergy, and Duperval received two cents for every minute that was added to the contract, for a total of about $150,000.

Duperval had Cinergy and Terra pay the bribes to two companies. Duperval first used Crossover Records, a music company owned by his brother, Lionel Duperval. Cinergy wrote five checks, for a total of $142,460, to Crossover as payments for Duperval. Duperval later established a shell company, Telecom Consulting Services Corporation, with the help of Esquenazi, a co-owner of Terra. Duperval's sister, Marguerite Grandison, served as the president of Telecom and operated its checking account. Duperval's name did not appear on any of the corporate documents. After Grandison and Esquenazi signed a commission agreement between Telecom and Terra, Terra made seven wire transfers to Telecom that Terra described as “consulting fees.” Terra transferred a total of $75,000 to Telecom. Cinergy also paid a total of $257,339.68 to Duperval through Telecom.

Duperval then transferred the money to himself. Crossover made three wire transfers, for a total of about $93,000, to Duperval's personal account. Grandison wrote 20 checks to Duperval that were drawn on the checking account of Telecom. Each check was for less than $10,000, and they totaled $63,577.64. Grandison also wrote checks to cash, and Duperval used other checks to purchase a house for himself, pay his mortgage, contribute to college funds, and purchase other personal items.

B. The Charges against Duperval and the Relevant Portions of His Trial.

A federal grand jury returned an indictment that charged Duperval with money laundering and conspiracy to commit money laundering. The indictment alleged that the money laundering involved the proceeds of violations of the Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd–1 to –3.

Before Duperval's trial, the prosecution disclosed a declaration from Jean Max Bellerive, who was the Prime Minister and acting Minister of Justice and Public Safety of Haiti. Bellerive provided the declaration in response to an inquiry from an attorney who represented one of Duperval's co-conspirators. The declaration expressed that “Teleco has never been and until now is not a State enterprise.”

The United States later helped Bellerive prepare a second declaration. The second declaration explained that Teleco was a part of the public administration of Haiti, that the first declaration was prepared for internal purposes, and that Bellerive did not know that the first request was related to a criminal trial in the United States.

A federal grand jury later returned a second superseding indictment that charged Duperval with two counts of conspiring to commit money laundering, 18 U.S.C. § 1956(h), and 19 counts of concealment of money laundering, id. § 1956(a)(1)(B)(i). This indictment also alleged that Duperval's financial transactions involved the proceeds of violations of the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd–1 to –3.

During jury selection, the district court asked the venire if any of the potential jurors had seen the articles and media coverage ... that mentioned Jean Bertrand Aristide, the former president of Haiti recently.” Prospective jurors numbers seven and ten responded that they had seen articles. The district court asked each juror if “there [was] anything that [he] read in those articles, although [the court did] not think that those articles or stories are in any way related to this case, that would in any way influence [the juror's] ability to be fair and impartial in this case.” Each prospective juror told the district court that he could be fair and impartial. When the district court asked the parties if any of the potential jurors should be questioned individually, Duperval's counsel asked to question prospective juror number seven about what media he had seen. The district court did not want to question him because it did not find that any of the media was prejudicial:

The article, the stories that have come out have nothing to do with this case. They have to do with somebody, I don't even remember the details of it, because it was of no concern to me, but it really doesn't have anything to do with this case. I don't really see any need to go into it further.

The district court later allowed Duperval's counsel to question prospective juror number seven, and he was selected as a juror.

After jury selection, the district court instructed the jurors to avoid any media about a “federal criminal case, Haiti, telephone communications, anything like that.” Before trial, the Miami Herald published an article entitled “Miami bribery probe zeroes in on Haiti's ex-leader Aristide.” The article focused on the former president of Haiti, Jean–Bertrand Aristide, and on corruption in his administration. On the first day of trial, Duperval's counsel told the district court about the article, and the district court questioned the jurors as a group about whether they had seen the article. The district court questioned the jurors as a group because it “didn't see that [the article] was anything that would prejudice [a juror] if they were, in fact, still intending to comply with the instructions of the court.” On each day of the trial, the district court reminded the jurors not to look at any media and to report to the district court any media that they saw.

On the second day of trial, the district court received a note from juror number one that stated she was “aware of Mr. Aristide's problems in Haiti, charges of corruption, etc., etc.” The district court asked counsel for both parties how it should respond, and Duperval's counsel moved for the district court to question juror number one individually. The district court said that it would consider interviewing the juror even though it “didn't get the impression that she read anything new.”

On the evening of the third day of trial, the Miami Herald published articles about the murder of Patrick Joseph's father. Joseph was the General Director of Teleco before Duperval worked at Teleco, and the articles suggested that the murder may have been retaliation for Joseph's cooperation with the investigation into corruption. On the fourth day of trial, Duperval's counsel moved to question all of the jurors individually, but the district court denied the motion because it “might poison [the jury]....

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1 books & journal articles
  • Trials
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • 1 de agosto de 2022
    ...articles published mid-trial did not mention defendants or witnesses and no evidence any jurors saw articles); U.S. v. Duperval, 777 F.3d 1324, 1332 (11th Cir. 2015) (no reversible error because individual questions “might poison” jury and group questions would not turn midtrial publicity i......

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