Suitcasegate - A Politically Motivated Prosecution Directed Against Venezuela?
Valijagate Part I
With the U.S. legal system managing to repeatedly piss off leftist Latin American governments, I thought I could contribute to the BoRev by utilizing my lawyerhood for good instead of the usual evil and take a closer look at some of these controversies. To kick things off, I've just done a boatload of research on the legal arguments surrounding the so-called "suitcase scandal,” or “malitenazo” or "valijagate." Since December, three Venezuelans and a Uruguayan have been detained in Miami without bail. Their alleged crime involves the supposed cover-up of the delivery of money between the Venezuelan and Argentine governments. There are now allegations that Chavez himself was involved. Interesting maybe, but does it sound like something the U.S. justice system should be involved in? Probably not. Even worse, the U.S. case is sort of laughable. Where to begin?
The four defendants are charged with violating 18 U.S.C. § 951 – acting as “agents” of the Venezuelan government, and failing to send a letter, email, or text message to Alberto Gonzalez telling him about their agency. Well not quite, but almost (full text of law). A popular misconception is that they were charged under 22 U.S.C. § 611 et seq., the Foreign Agents Registration Act (FARA), a similar, better-known statute with a catchier name that largely deals with foreign government lobbyists or public relations firms registering their activities with the Department of Justice (DOJ). Either way, the legal case is slowly proceeding, and the defense has recently submitted a motion to dismiss (full text) the charges to the court. Although it would be a huge political shock for the defendant to win on the motion, the defense has legal precedent on it’s side. But it’s also just common sense. After the jump, a closer look at the law and the defense motion lends support to Venezuelan and Argentine claims that the prosecution is politically motivated.
After being re-scheduled twice while the government slowly persuaded three of the four defendants into making plea agreements and admissions of guilt (all had originally pleaded not guilty), the trial for the lone detainee not to succumb to the pressure, Franklin Duran, is now set to proceed on September 2, 2008 in the Florida Southern District Court in Miami. On June 20, Duran’s attorney, Edward R. Shohat, submitted a motion to dismiss the two charges (there is also a count for conspiracy to violate section 951) against his client on the grounds that the relevant statute is unconstitutional. The defense’s main legal theory is that 18 U.S.C. § 951 is void for vagueness, and so it violates the Due Process Clause of the 5th Amendment of the U.S. Constitution. This argument maintains that when a law does not clearly explain what type of behavior is a no-no, it promotes discriminatory enforcement by officials, and all other sorts of violations of the Bill of Rights – you know, that piece of paper that used to be the foundation of this country’s democracy.
When a law’s plain meaning is as ambiguous as is section 951’s, the judge should examine the legislative intent/history of Congress when passing or amending the law in order to determine whether it is constitutional, and whether or not the defendant has gone against its purposes. 18 U.S.C. § 951 was originally passed during WWI with an eye on ze Germans. It was meant to, and has previously only been used to prevent classic espionage – collecting intelligence or classified information and transmitting it back to a foreign country over an extended period of time – or other activities that were reasonably considered a threat to US national security. And as the defense points out in its motion, when Congress passed the law in 1917, it was viewed by legislators as a defense for the country during times of war. The statute was last amended in 1984 with an eye on the Ruskies in the midst of a resurgent case of Cold War hysteria.
So that’s the legal “ideology” behind the law, and the legal reality has so far largely backed it’s intended purposes. § 951 is an FBI-investigation-initiator when spying is suspected, as well as a prosecutorial safety-net when more serious spying charges are alleged, but uncertain to be proven. It has, up until recently, been used as a secondary charge along with other more serious spying charges, or as part of a plea agreement reached after extended spying. Of the 35 prior § 951 cases found on LexisNexis and referred to in page 15 of the defense motion, 32 reasonably involved such “spying” activities and have been used against “agents” of regimes that the US was then openly hostile to. These include Germany earlier last century (8), the USSR (12), Vietnam during that war (2), an unnamed country (1), and more recently Iraq (5) and Cuba (4). The fact patterns in two cases are unpublished and the one remaining case involved the illegal exportation of weapons from the US to Northern Ireland (US vs. Byrne). In fact, according to the motion to dismiss, the defendants in Byrne were able to beat the § 951 charge using the same void for vagueness arguments as Duran.
The Iraqi cases are all post-Gulf War I and some involve international intrigue related to the current Iraqi adventure, including an American anti-war activist accused of being an agent of Saddam. Other recent section 951 cases found on the internet include the prosecution of two engineers for sending back classified weapons information to China for over twenty years. Another, maybe even comical case involves a Marine sending classified information to the Philippines from, get this, Dick Cheney’s office.
And now you can add Venezuela to the list. But notably absent from the government’s indictment (full text) of Moisés Maionica, Carlos Kauffman, Antonio José Canchica Gómez (not detained), Rodolfo Wanseele Paciello, and Duran is any mention of espionage or other concrete violations of US national security interests by the defendants. Even the recent Cuban cases of the Cuban 5 and the Alvarezes, relate to the transmittal of intelligence by those living in the U.S. to Havana over a period of several years or decades. The fact pattern in the Venezuelan case is drastically different than prior § 951 prosecutions, with the fabulously wealthy defendants only visiting the U.S. for small periods of time.
So why now is the government attempting to prosecute Duran and by extension Venezuela under an obscure anti-spying law, other than Miami’s disdain for anything Castro or Chavez-ey? From a legal point of view, you’ve got me.
Unlike FARA, section 951 does not detail what "registration" form an "agent" of a foreign government is supposed to send to the DOJ or Attorney General. But why would it? It doesn't make sense that a law meant to catch spies actually expects them to announce their activities to the country they're spying on, or they would be terrible at their jobs. But if you apply section 951 the way the DOJ is asking the District Court to do so, then any activity or favor done by someone in the U.S. at the request of a foreign official, no matter how innocent, exposes that person to the risk of being arrested. Well, at least it's a lot more likely if the U.S. does not like that official's government. And that is precisely why, in a purely legal sense, the void for vagueness doctrine should prevail for Duran, as it did in US vs. Byrne, although that doesn't mean it will.
Prosecutor Thomas Mulvihill and his team at the DOJ must respond to the defense’s motion by July 10, and it undoubtedly will be very interesting to see what kind of legal arguments they pull out of their asses come up with. There are several other legal minefields that the prosecution will have to navigate in order to win a conviction, and they will be detailed in future Revolter postings. What is clear now however, is that Venezuela and Argentina have bona fide support, including both common sense and legal precedent, for their positions that this prosecution is politically motivated. The media has willfully ignored all of these arguments, taking the White House line of the “independence of the US judiciary” as some sort of absolute truth that prevents such judicial bias form occurring. But many people all over the world are already unconvinced, and many more will be so if Duran is actually convicted under this strange statute.
Valijagate Part II
Parts I & II of this suitcase scandal trial update were supposed to focus on the arguments behind the “Motion to Dismiss” the charges filed by Franklin Duran on June 20. However, the first paragraph of Part I linked to a Bloomberg article that refers to a different legal document – Duran’s June 24 Response to the Department of Justice (DOJ)’s absurd and hypocritical “Motion to Preclude Evidence and Argument Regarding the Foreign Policy of the United States Towards Venezuela." The misleading Bloomberg piece suggests that there is direct evidence Chavez personally sent the defendants to Miami to pressure "the Fatman" or “el Gordo,” Guido Antonini Wilson, to cover-up some money-laundering. But the revelation made on pg. 4 of the defense's Response and referred to by Bloomberg was only that one of the defendants, the multi-millionaire Carlos Kauffman, told the FBI (as part of plea deal that reduces his sentence) that others told him that Chavez was “involved.” That’s called hearsay, and by itself, Kauffman's statements won’t prove a thing in court.
A far more impressive revelation from that motion is that Duran is going to tell it like it is and argue "what appears quite obvious to everyone else": that the prosecution is POLITICALLY MOTIVATED. That starts on page 1, and on pgs. 2-3 the defense states that the DOJ intends to use evidence “having no real purpose but to embarrass the government of Hugo Chavez” at trial.
More on the weird “Foreign Policy” Motion and the defense's rational Response to it later. First, let’s finish exploring the arguments found in the even more legally sound and kick-ass Motion to dismiss filed by Duran. There’s only a few more, and trust me, they’re good and easy to understand.
In Part I the importance of legislative intent/history and the prior 18 U.S.C. § 951 cases were examined in light of how strong the defense’s motion to dismiss and void for vagueness arguments are. But legislative intent and prior caselaw are only two aspects of the legal analysis a judge should conduct when deciding whether a law is unconstitutionally vague or not. Lucky for Duran, other aspects of his vagueness argument against § 951 may be even stronger, legally speaking.
Successfully challenging a law because it is too vague depends on whether or not someone of "ordinary intelligence" could read the law and then understand what type of behavior it bans. The "ordinary intelligence" standard is well-established by the Supreme Court. But § 951 does not specify what type of behavior a person cannot do at "the direction or control of a foreign government or official." So if your friend who works at the Irish Embassy asks you to pick up her dry-cleaning and you do it, could you be prosecuted under § 951? Nothing in the statute says you would not be. And former State Department officials agree. Ironically, the defense is attacking § 951 with the State Department and DOJ’s own legal memos and letters on § 951. Duran’s motion included as exhibits two documents written in 1976 by government legal experts that are respectively addressed 1) to a top State Department official and 2) to the then head of the DOJ, former Attorney General Edward Levi.
The memo written by the State Department’s former counselor on international law gives the hypothetical example, among others, of how a professor could be prosecuted under section 951 if they are asked by the Ruritanian Ambassador to write a research paper on water law policy and then they proceeded to write it before registering with the DOJ as an agent of Ruritania. Sounds crazy right? The author concludes his 12-page constitutional analysis of § 951 by stating, "let us be done with [the statute]." The letter from a State Dep. legal advisor to the then Attorney General also doubts § 951’s constitutionality and usefulness, stating that "18 U.S.C. 951 does not contain a definition of the activity which requires registration, its scope is unclear, and unless it 'has some application which is not apparent, it is recommended that it be repealed.'" But why is State even involved in legal opinions since that would obviously open the door to politicization? Oh, b/c they're input is actually part of the statute.
As referred to in Part I and the defense motion, there is one other 951 case, US vs. Byrne, in which the defendants have won on the same void for vagueness arguments that Duran is now using. And that case is also the only other one besides Duran's that I know of that doesn't fit a "typical" espionage fact pattern. It's uncertain how much importance the judge will place on the above memos, but the lawyers for Byrne also used both letters as exhibits in its successful defense from the statute.
Further complicating the DOJ's chances of prosecuting Duran is the most recent decision regarding the Cuban 5. In that case, the 11th Circuit Court ruled that § 951 is a general intent law as supposed to a specific intent law, during the last Cuban 5 appeal. This means that a person does not need to know that they were supposed to have registered as a foreign agent in order to be prosecuted under this statute. That decision may actually be great for Duran. When a statue is constitutionally challenged because of its "vagueness," a judge may try to interpret the law as requiring the specific intent of "knowing" you were breaking the law in order to be guilty. This is done in order to reduce reasonable confusion over the law, and allow leeway for the judge to declare the law constitutional, which is usually the preference of the justice system.
For § 951 such reasoning would go a little like – yes the crime is vague, but you knew you had to register as a foreign agent, you deliberately failed to register, so you’re still screwed. Sometimes, the judge must do some incredible legal acrobatics in order to reach such a conclusion and rule that a law is still constitutional. However, this option is now not there for Duran's judge, because the 11th Circuit Court controls what decisions may or may not be made in Duran's court, the Florida Southern District Court. The District Court must find another way to save this severely flawed statute. The 11th would also be the Court of appeal in Duran's case (a further appeal might take it to the U.S. Supreme Court).
Judge Joan A. Lenard is the one who must decide if she agrees with the defense's arguments and throw out the charges. She is no stranger to politically-charged cases, also presiding over the prosecutions of the Cuban 5 and the second mistrial of the Liberty City 7, an obvious instance of government over-reaching and political pressure not being enough to secure convictions. However, it is extremely unlikely that she will make such a decision before a trial is begun. She could also rule § 951 unconstitutionally vague at a later point in the trial. But since there will probably be a trial, it is uncertain how the jury will take the above legal arguments into account. Juries supposedly only decide on issues of fact, the judge decides on issues of law and constitutionality; however, issues of law and fact are not always easily separated, and it would seem this is just the type of case where opinions will differ.
But opinions should not differ on a few things: The prosecution appears to have bitten off more than it can chew. Nevertheless, the political and media jockeying in this case may unfortunately end up being more important than the legal arguments.
P.S. - A google search of the name of the author of the memo with the hypothetical § 951 examples, Gordon Baldwin, revealed that the University of Wisconsin law professor passed away less than two years ago. A colleague of his had this to say about him shortly after his death:
He was among what seems to be a vanishing breed of lawyers - true professionals whose loyalty to the principles of the profession ran extremely deep.I hope Prosecutor Thomas Mulvihill will take a an honest look at his memo on § 951.
