US v. Ortiz de Zevallos
| Decision Date | 18 October 1990 |
| Docket Number | No. 89-0677-CR.,89-0677-CR. |
| Citation | 748 F. Supp. 1569 |
| Parties | UNITED STATES of America, Plaintiff, v. Emilio ORTIZ de ZEVALLOS, Michael Macko, and Frank Van Ameringen, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
COPYRIGHT MATERIAL OMITTED
Paul E. Pelletier, Asst. U.S. Atty., for plaintiff.
Michael H. Tarkoff, Miami, Fla., for defendant Zevallos.
Jay L. Levine, Miami, Fla., for defendant Macko.
Kenneth Swartz, Asst. Public Defender, for defendant Van Ameringen.
ORDER GRANTING MOTION FOR JUDGMENT OF ACQUITTAL AND DENYING MOTION FOR NEW TRIAL
This cause came before the Court upon the Defendants' motions for judgment of acquittal and new trial pursuant to Federal Rules of Criminal Procedure 29 and 33.1 The Defendants were charged with violating 1) the Cuban Assets Control Regulations, 31 C.F.R. § 515.201(b)(1), promulgated pursuant to the Trading With the Enemy Act ("TWEA"), 50 U.S.C.App. §§ 5(b) and 16, 2) the Export Administration Act ("EAA") and implementing regulations, 50 U.S.C.App. § 2410(b) and 15 C.F.R. §§ 772.1, 785.1, 787.6 and 799.1, and 3) 18 U.S.C. § 2. In addition, Defendant Michael Macko was charged with making false statements on a Shippers Export Declaration ("SED") in violation of 18 U.S.C. § 1001. The Defendants allegedly shipped to Panama materials for use in manufacturing cigarettes — namely, packaging machinery, printing ink, and poly film — which were then shipped from Panama to Cuba. Defendants first moved for judgment of acquittal at the conclusion of the government's case and the Court reserved ruling. Following the verdict the Court requested written memorandum from the Defendants and the government regarding the motion for judgment of acquittal. Defendants now move for a judgment of acquittal on the grounds that 1) the government failed to show that Defendants had the specific intent necessary to sustain a conviction under either the TWEA or the EAA; 2) the transaction as established by the evidence does not violate the implementing regulations of the TWEA or EAA as charged in the indictment; and 3) the evidence failed to show that Defendant Macko made a false statement as to a material fact on the SED.
A judgment of acquittal will be granted when the evidence adduced at trial fails to prove the defendant's guilt beyond a reasonable doubt. United States v. Villegas, 911 F.2d 623 (11th Cir.1990). It is well established, however, that to determine the sufficiency of the evidence supporting the verdict, the court must view the evidence in the light most favorable to the government. Id.; see also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Thus, to support the jury's finding, the evidence need not exclude every hypothesis of innocence if a reasonable construction of the facts adduced at trial establishes guilt beyond a reasonable doubt. United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).
Even viewed by this standard, however, the paper trail relied on by the government has too many twists and turns and dead ends to establish more than a tenuous inference that the Defendants acted with the requisite intention to violate either the TWEA or the EAA. The government's case against the Defendants is primarily a paper case, made up of letters, faxes, shipping invoices, and other documents by which the government attempts to weave a web of culpability in which all the Defendants are entangled. The documents and testimony introduced at trial, taken in the light most favorable to the government, reflect the following. Sometime in the first half of 1988, Defendant Frank Van Ameringen became part of a plan involving the sale of counterfeit Winston cigarettes manufactured in Cuba. The exact details of the genesis of the plan are not clear. It is clear, however, that by August of 1988, Van Ameringen had contacted Defendant Emilio Ortiz de Zevallos, a Peruvian citizen residing in Chile who conducted business in the Panamanian free zone.2 The third Defendant, Michael Macko, was apparently the last of the Defendants to enter into the arrangement. Macko was a former engineer with R.J. Reynolds Tobacco Co., and had substantial knowledge about manufacturing cigarettes.
The trio's plan was premised on Macko obtaining items necessary to manufacture the counterfeit Winstons and then selling them to Ortiz de Zevallos. The evidence shows that Macko acquired used packaging machines that could wrap individual packs of cigarettes, place them in cartons, and then overwrap the carton in a poly film. The evidence also shows that Macko purchased poly film, tear tape, and printing inks. Specifically, the printing ink purchased included "Winston Red" and "Winston Gold," two colors specially mixed to match the colors then used on the Winston cigarette packaging.
In October 1989, the overwrap machine purchased by Macko was sent to Panama by Union Standard Equipment Co., the company which sold the overwrap machine to the Defendant. In March 1989, Macko, through his company Machine Systems Inc., sent the other items to Panama. In both instances, Ortiz de Zevallos was the consignee. Ortiz de Zevallos made several trips to the United States, and in March, helped arrange for the export of the items sent to Panama. Moreover, all of the Defendants traveled to Cuba subsequent to the exportation of the equipment from the United States. Macko admitted that he traveled to Cuba at least twice to install the equipment.
Finally, the evidence indicates that Ortiz de Zevallos paid Macko for the equipment. The government introduced into evidence checks from Ortiz de Zevallos payable to either Macko or one of his companies in the amounts of $55,000.00, $42,000.00, $21,000.00, and $2,218.00. The government also produced some evidence that Macko would have received compensation in the form of shared profits from the cigarettes manufactured in Cuba when they were sold.
The "designated foreign country" referred to in these regulations is Cuba. 31 C.F.R. § 515.201(d). Pursuant to the TWEA, 50 U.S.C.App. § 16, any criminal violation of the regulations requires "willfulness," or specific intent.
Defendants also are charged with knowingly and willfully conspiring to export machinery to Cuba without obtaining a license in violation of the EAA, 50 U.S.C.App. § 2410(b). Pursuant to 15 C.F.R. §§ 772.1, 785.1, 787.6, and 799.1, a license is required for the export and reexport of almost all U.S. commodities to Cuba. Under § 2410(b) violation of the EAA must also be "willful," and at a minimum, the government must prove the same degree of criminal intent required for the substantive offense to support a conspiracy conviction. United States v. Wieschenberg, 604 F.2d 326, 331 (5th Cir.1979); United States v. Davis, 583 F.2d 190, 192 (5th Cir.1978). Thus, to sustain the conviction under either the TWEA or EAA, the evidence must show that Defendants had the specific intent to violate the regulations prohibiting trade with Cuba except under certain circumstances.
A finding of specific intent requires evidence that the defendant must "have actually known of the ... requirement and have voluntarily and intentionally violated that known legal duty...." United States v. Warren, 612 F.2d 887, 890 (5th Cir.1980) (en banc) (emphasis added), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). In recent years, the United States Court of Appeals for the Eleventh Circuit has addressed the issue of specific intent in several cases involving foreign trade, thus clearly defining the nature of the evidence necessary to sustain a finding of guilt in the case now before the Court. See United States v. Markovic, 911 F.2d 613 (11th Cir.1990) (); United States v. Adames, 878 F.2d 1374 (11th Cir.1989) (per curiam) (); United States v. Fuentes-Coba, 738 F.2d 1191 (11th Cir.1984) (), cert. denied, 469 U.S. 1213, 105 S.Ct. 1186, 84 L.Ed.2d 333 (1985); United States v. Frade, 709 F.2d 1387 (11th Cir.1983) (). Indeed, United States v. Adames is squarely and inescapably on point. Although Adames involved the violation of the Arms Export Control Act, 22 U.S.C. § 2778, rather than the TWEA or EAA, it is...
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U.S. v. Macko, 90-5965
...held that the evidence was insufficient to support the guilty verdicts against Macko and Van Ameringen. United States v. Ortiz de Zevallos, 748 F.Supp. 1569, 1575, 1580 (S.D.Fla.1990). As an alternative basis for its holding on the TWEA counts, the court concluded that the appellees' conduc......