U.S. v. Duran

• Decision Date: 16 February 2010
• Docket Number: No. 09-11446.,09-11446.
• Citation: 596 F.3d 1283
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Franklin DURAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

596 F.3d 1283

UNITED STATES of America, Plaintiff-Appellee, v. Franklin DURAN, Defendant-Appellant.

No. 09-11446.

United States Court of Appeals, Eleventh Circuit.

February 16, 2010.

Ira N. Loewy, Edward R. Shohar, Bierman, Shohat, Loewy & Perry, P.A., Miami, FL, for Defendant-Appellant.

Stephen Schlessinger, Anne R. Schultz, Kathleen M. Salyer, Harriett R. Galvin, Miami, FL, for Plaintiff-Appellee.

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

Before WILSON and ANDERSON, Circuit Judges, and RESTANI,^* Judge.

WILSON, Circuit Judge:

Franklin Duran ("Duran"), a Venezuelan citizen, was convicted of conspiring with one of his business partners and three other co-conspirators to knowingly act in the United States as an agent of a foreign government, without prior notification to the Attorney General of the United States, in violation of 18 U.S.C. § 371, and of acting in the United States as an agent of a foreign government, without prior notification to the Attorney General, in violation of 18 U.S.C. § 951, as a result of his involvement in attempting to cover up the so-called "Suitcase Scandal" between Venezuela and Argentina. Duran's business partner and the two other co-conspirators pled guilty to the same charges and testified against Duran at his trial. Duran now raises five issues on appeal: (1) that § 951 is unconstitutionally vague as applied to the facts of this case; (2) that Federal Rule of Evidence 404(b) character evidence was admitted for an improper purpose; (3) that the Government engaged in prosecutorial misconduct by improperly commenting on the Rule 404(b) evidence; (4) that evidence of Duran and his co-conspirators' lack of knowledge of the notification requirement under § 951 was erroneously excluded; and (5) that the district court should have admitted several hearsay statements evidencing Duran's lack of intent to act as an agent of a foreign government under § 951. Upon considering the briefs, the record, and after the benefit of oral argument, we affirm Duran's convictions under 18 U.S.C. §§ 371 and 951.

I. BACKGROUND

Duran was a co-proprietor of Venoco, the largest private petro-chemical enterprise in Venezuela, which is reliant upon the operations of Petróleos de Venezuela, S.A. ("PDVSA"), an energy corporation and monopoly owned and operated by the Venezuelan government. Several of Duran's other ventures were also heavily dependent upon the favor of the Venezuelan government. Carlos Kauffmann ("Kauffmann") was one of Duran's co-conspirators and Duran's main business partner, as the other co-proprietor of Venoco. Prominent among Duran's business partners was Guido Alejandro Antonini Wilson ("Antonini"), a dual citizen of Venezuela and the United States, who engaged in commercial dealings with the Venezuelan government and other ventures involving Venezuelan co-investors. In addition to being business partners, Duran, Kauffmann, and Antonini were personal friends.

The "Suitcase Scandal" between Argentina and Venezuela erupted on August 4, 2007, when Argentine customs agents searched a suitcase Antonini was carrying upon arrival in Buenos Aires, Argentina on a private plane chartered by the PDVSA. A customs agent discovered approximately $800,000 in United States currency in the suitcase. It is a criminal violation in Argentina to fail to declare more than $10,000 being imported into the country. Antonini, traveling on his Venezuelan passport, executed a customs statement in which he listed Duran's Caracas, Venezuela apartment as his residence. Thereafter, Antonini attended a reception for Venezuelan President Hugo Chavez in Buenos Aires and boarded the first flight to Miami. As a result of Antonini leaving Argentina without resolving the introduction of $800,000 into Argentina without declaring it, the Argentine authorities began extradition proceedings against Antonini. Communication among Antonini, Duran, and Kauffmann commenced immediately after Antonini returned to Miami because Duran and Venoco had been implicated when Antonini listed Duran's apartment on the customs statement. The media speculated that the discovery of the suitcase with $800,000 was evidence that the governments of Venezuela and Argentina had been secretly channeling large sums of money from PDVSA to Argentine presidential candidate Cristina Fernández de Kirchner, favored by the Venezuelan regime.

After being implicated in the "Suitcase Scandal," Duran contacted Tarek Al-Aissimi, Venezuela's Minister of the Interior, and General Henry Rangel Silva ("Rangel"), Director of the Venezuelan intelligence agency, Dirección de los Servicios de Inteligencia y Prevención (the "DISIP"). They informed Duran that the DISIP would be handling the "Suitcase Scandal." On August 10, 2007, Duran and his brother, a DISIP agent, traveled to Miami to get Antonini to set forth a full written account of the incident with the suitcase. Antonini gave the Durans a full oral recounting, but he declined to provide the requested written narrative. Shortly thereafter, Antonini hired an attorney and entered into a cooperation agreement with the FBI. In Venezuela, the DISIP formulated a strategy to defuse the "Suitcase Scandal" in hopes of concealing evidence that the $800,000 found in the suitcase was a campaign contribution from the Venezuelan government to the Argentine presidential candidate. The DISIP proposed that a forged and back-dated document purporting to attest to Antonini's removal of $800,000 of his own money from Venezuela be placed in the files of Venezuela's customs authority. Then, the DISIP would retain an Argentine lawyer, pursuant to Antonini's execution of a power of attorney, to represent Antonini for failing to declare the money upon arrival in Argentina. Thus, if Antonini were to claim the money as his own, the matter would be resolved between Venezuela and Argentina without any implication that the money was being funneled to the Argentine presidential candidate.

In order to secure Antonini's cooperation, the DISIP retained a Venezuelan attorney, Moises Maionica ("Maionica"), one of the co-conspirators who pled guilty and testified against Duran, believing that he could address Antonini's legal concerns and prepare and oversee the execution of a power of attorney.¹ The DISIP also enlisted the help of Duran and Kauffmann because of their personal relationship and potential influence over Antonini. Duran, Kauffmann, and Maionica met with Antonini several times in Miami to discuss the DISIP's strategy and to convince Antonini to cooperate. Antonini wore a recording device provided by the FBI to all of the meetings. Duran repeatedly tried to get Antonini to sign a power of attorney. D.E. 318 at 80. Duran, Kauffmann, and Maionica assured Antonini that the Venezuelan and Argentine governments would come to an agreement, and Argentina would drop the charges against Antonini once he executed the power of attorney. Antonini raised some concerns with the proposal and remained non-committal.

After several unsuccessful attempts to get Antonini to sign the power of attorney, Duran, Kauffmann, and Maionica met with Rangel at the DISIP headquarters in Caracas, Venezuela. Duran told Rangel that he would seek to get Antonini to sign the power of attorney. Id. In September 2007, Duran met with Antonini and encouraged him to sign the power of attorney, but Antonini refused. Frustrated with Antonini's non-cooperation, Duran did not meet with Antonini again until December 2007. In early October 2007, Antonini sent a written offer to President Hugo Chavez, requesting $2 million in monetary compensation and DISIP assistance in forging sufficient documentation to corroborate his ownership of the $800,000 seized by Argentine officials. On October 28, Antonini met with DISIP agent Antonio Jose Canchica Gomez ("Gomez") in a recorded meeting and reiterated the demands he made to Chavez. Gomez accepted the offer on behalf of Chavez. After Rangel confirmed the terms with Antonini via telephone, the only remaining question was how the $2 million would be transferred. At a meeting on December 11, 2007, Duran supplied Antonini with the falsified documents that would justify Antonini bringing $800,000 into Argentina. They also discussed the power of attorney and the payment of the $2 million. As Duran and Maionica left the meeting, the FBI arrested them.

Before trial, the Government filed several motions in limine relevant to this appeal. First, the Government sought to preclude the presentation of evidence regarding the foreign policy or lack of foreign policy between the United States and Venezuela. The Government was concerned that Duran would introduce such evidence to show that Duran was the subject of a political prosecution designed to embarrass the Venezuelan government for illegally contributing to an Argentine presidential candidate. The Government argued that relations between the United States and Venezuela had nothing to do with Duran's specific criminal conduct or the statutes he violated. Additionally, the Government argued that permitting Duran to raise the defense of being politically prosecuted would be an invitation for improper jury nullification. Duran responded that the evidence of foreign policy relations between the United States and Venezuela was directly relevant to the motives of the Government witnesses, and that the only purpose of the prosecution was to embarrass the Chavez government in Venezuela by using Duran as a scapegoat. However, at the status conference, Duran admitted that he would not defend the case on the basis that it was a political prosecution, even though he said it was. D.E. 216 at 40. Thus, the district court granted the Government's motion in limine to exclude evidence of foreign policy relations between the United States and Venezuela because it was facially irrelevant to the crimes charged.

Second, the Government sought to preclude Duran from...