Case 1:09-cr-21010-JEM Document 712 Entered on FLSD Docket 02/16/2012 Page 1 of 8

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 09-CR-21010-MARTINEZ MIAMI DIVISION UNITED STATES OF AMERICA, Plaintiff, v. JEAN RENE DUPERVAL, et al., Defendants. ______________________________/

MOTION FOR SEVERANCE OR IN THE ALTERNATIVE TO PRECLUDE CO-DEFENDANT CINERGY TELECOMMUNICATIONS, INC., FROM PRESENTING AN EXTORTION AND/OR ECONOMIC DURESS DEFENSE TO THE CHARGES FILED IN THIS CAUSE

The Defendant, JEAN RENE DUPERVAL, through counsel and pursuant to Rule 14 of the Federal Rules of Criminal Procedure files this his Motion for Severance or in the Alternative to Preclude Co-Defendant Cinergy Telecommunications, Inc., from presenting an Extortion and/or Economic Duress Defense to the Charges Filed in this Cause and in support thereof states the following: A. THE PENDING CHARGES AGAINST JEAN RENE DUPERVAL AND CINERGY TELECOMMUNICATIONS, INC. The second superseding indictment returned in this cause charges Cinergy and its principal officers, Washington Vasconez Cruz, Cecilia Zurita, and Amadeus Richers, along with Mr. Dupervals sister, Marguerite Grandison, with conspiracy to violate the Foreign Corrupt

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Practices Act, Title 15, United States Code 78dd-2 (a) and wire fraud in violation of Title 18, United States Code 1343 (Count I). Vasconez Cruz, Zurita, Richers, and Cinergy are also charged with substantive violations of the Foreign Corrupt Practices Act (Counts 4-7) and Vasconez Cruz, Richers and Cinergy are charged with additional substantive violations of the Foreign Corrupt Practices Act, (Counts 2-3). In summary, the conspiracy to violate the Foreign Corrupt Practices Act and the substantive violations of the Act center around allegations that Cinergy, Vasconez Cruz, Zurita, and Richers made a number of payments (which the government characterizes as bribes) to Jean Rene Duperval, Patrick Joseph, and other individuals who, according to the government, were foreign officials employed at various times by Haiti Teleco. These payments were made for the purposes of influencing Mr. Dupervals (and the others) acts and decisions in his official capacity; inducing him to do and to omit acts in violation of the lawful duties imposed upon him; to secure an improper advantage; and to induce Mr. Duperval to use his influence with a foreign government and instrumentality to effect and influence the acts and decisions of the government and instrumentality in order to assist Cinergy, Vasconez Cruz, Zurita, and Richers in obtaining and retaining business for and with, and directing business to Cinergy (DE:685). Count 8 of the Indictment (The Cinergy Money Laundering Conspiracy) charges Vasconez Cruz, Zurita, Richers, Cinergy, Mr. Duperval, Marguerite Grandison, and Patrick Joseph with conspiracy to violate Title 18, United States Code 1956(a)(1)(B)(i) and 1957 by engaging in financial transactions with the proceeds of a specified unlawful activity, i.e., violations of the Foreign Corrupt Practices Act, Criminal Bribery Laws of Haiti and Wire Fraud.

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Counts 10-28 charge the above named individuals with substantive money laundering in violation of Title 18, United States Code 1956(a)(1)(B)(i). 1 THE BASIS FOR SEVERANCE On Monday, February 13, 2012, Cinergys attorney, Joel Hirschorn, Esquire, confirmed to the undersigned that he intends to present an extortion and/or economic duress defense to the charges brought against Cinergy in this cause. Specifically, Mr. Hirschorn intends to introduce witness testimony and documents to support his defense theory that Cinergy was forced to enter into third party consulting agreements with, inter alia, Telecom Consulting/Marguerite Grandison and as a result paid large sums of money for the benefit of Jean Rene Duperval in order to protect its (Cinergys) capital investment in telephone equipment which it had provided to Haiti Teleco and its vested interest in calling card contracts and contracts for the purchase and/or exchange of long distance minutes from and to Haiti Teleco. Simply put, it will be Cinergys position at trial that if it failed to capitulate to the alleged extortionate demands it made by or on behalf of Mr. Duperval it would lose all or parts of its capital investment, its contracts, and the telephone line connections which it utilized to route calls to Haiti would be shut-off, thereby shutting down Cinergys business in Haiti. The essence of Mr. Dupervals defense at trial would be that, to the extent that monies were paid by Cinergy to intermediary companies for his benefit, those payments violated neither the Foreign Corrupt Practices Act, Haitian Bribery Laws, or any other United States Penal Statute. Consequently, the funds were not derived from any specified unlawful activity and thus could not serve as a predicate for the charged money laundering violations.

Of the individuals and entity charged in the Second Superseding Indictment, it appears that only Mr. Duperval and Cinergy will be proceeding to trial. Upon information and belief Vasconez Cruz, Zurita, and Richers are residing in Brazil and have not appeared in this case. Ms. Grandison is unlikely to go to trial and Mr. Joseph has pled guilty and will likely be testifying as a government witness in this case.

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The defense posited by Cinergy is clearly antagonistic to the defense which will be asserted by Mr. Duperval. Moreover, the defenses are mutually exclusive. That is, if the jury were to accept Cinergys defense, it would necessarily have to reject Mr. Dupervals. If it were to accept Mr. Dupervals, it would necessarily have to reject Cinergys. Beyond that, if Cinergy is allowed to present this defense at trial, the prejudice to Mr. Duperval would be clear and overwhelming. On one hand, the government would be presenting evidence and argument demonstrating that he was a bribe taker and money launderer. On the other hand, counsel for Cinergy with whom he will be seated at the same table will be presenting evidence and argument telling the jury that Mr. Duperval is guilty of an equally or perhaps far more heinous yet uncharged crime, i.e., extortion. SEVERANCE IS REQUIRED Rule 14 of the Federal Rules of Criminal Procedure recognizes that joinder, even when proper under Rule 8(b) may prejudice a defendant, Zafiro v. United States, 506 U.S. 534 (1993). Specifically, the rule provides: If it appears that a defendant is prejudice by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together the Court may grant a severance of the defendants or provide whatever other relief justice requires. The joinder of defendants asserting mutually antagonistic defenses can operate to reduce the burden of the prosecutor. Id. at 544. Cases where the defendants accuse each other introduce a second prosecutor by turning each codefendant into the others most forceful adversary, which is particularly troublesome because the defense counsel are not always held to the limitations and standards imposed on a government prosecutor. Id.; Id. at n.3 (citing United States v. Tootick, 952 F.2d 1078, 1082 (9th Cir. 1991). The prejudice created by a second

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prosecutor is particularly acute here, where the defendants are not only blaming one another, but Cinergy is accusing Duperval of uncharged criminal conduct, i.e. extortion. Severance is mandated where a joint trial will prevent the jury from making a reliable judgment about guilt or innocence or will result in denial of a constitutional right. Zafiro at 539; United States v. Blankenship, 382 F.3d 1110, (11th Cir. 2004). Since Cinergys defense amounts to a glaring accusation of uncharged criminal conduct, Duperval will be placed in the plainly unfair position of defending against Cinergys criminal accusations in addition to the charges contained in the Second Superseding Indictment. It is difficult to conceive of a case where severance could be more necessary. IN THE ALTERNATIVE EVIDENCE OF EXTORTION AND/OR ECONOMIC DURESS DEFENSE SHOULD BE EXCLUDED If this Court is disinclined to grant a severance, in the alternative, Mr. Duperval moves in limine to exclude Cinergy from presenting a defense based upon theories of extortion and/or economic duress. Simply put, even if factually supported, neither extortion nor economic duress are legally cognizable defenses to the bribery and other charges brought against Cinergy in this case. As alleged in the Second Superseding Indictment and as more fully developed in the discovery provided in this case, the government contends that beginning at least as early as 2001, Cinergy bribed Patrick Joseph, the former Director General of Haiti Teleco, to obtain advantageous contracts for the purchase of minutes from Haiti Teleco and establishing a calling card partnership with Haiti Teleco. The government will attempt to prove and argue that the contract for minutes and the calling card contract were bestowed on Cinergy as a result of bribes paid to Patrick Joseph. The government has further alleged in the Second Superseding

Indictment, and will further contend at trial, that Mr. Duperval was effectively bribed to allow 5

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Cinergy to continue to maintain the unlawfully obtained contractual benefits it had obtained under Josephs regime at Teleco. A number of courts that have addressed the issue have indicated that bribery and extortion are not mutually exclusive and that a defendant, such as Cinergy can be guilty of paying a bribe even if they were extorted. See e.g., United States v. Lee, 846 F.2d 531, 534 n.1 (9th Cir. 1988) (where defendants argued that the specific intent necessary to prove the crime of bribery under 18 U.S.C. 201 was negated by their fears that they would lose their contract with the government if they did not pay off government inspectors a plain reading of [the statute] casts doubt on [defendants] economic coercion theory); United States v. Colacurcio, 659 F.2d 684,690 (5th Cir. 1981)(appellants insistence that extortion can be a defense to bribery is incorrect even if the appellants were subjected to extortion, they can still be convicted on the bribery charge.); see also, United States v. Miller, 340 F.2d 421, 425 (4th Cir. 1965)(declining to decide whether extortion was a defense to a violation of 201 because the evidence did not support an extortion claim in the first place since the defendant by his payments was purchasing favored treatment from Lawrence and a fear of losing his illegal advantage if the payment were discontinued was not extortion); United States v. McPartlin, 595 F.2d 1321 (7th Cir. 1979) (observing that the defendant could not have asserted an extortion defense due to his lack of legal entitlement to the benefits he sought to obtain through bribes). In the instant case, the issues framed by the Second Superseding Indictment and supplemented through discovery provided to date define the governments position that Cinergy, through its early initial dealings with Patrick Joseph, which involved paying him bribes when he was director general of Haiti Teleco, resulted in it obtaining contracts to which it was not lawfully entitled. Given the lack of lawful entitlements to the contractual benefits which Cinergy

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now claims it later sought to protect through payments to Duperval, neither extortion nor economic duress provide a legal recognizable defense to the charges against Cinergy. Thus, Cinergy should be precluded from asserting them in a joint trial with Duperval. The undersigned has discussed the relief requested in this Motion with Assistant U.S. Attorney James Koukios who is prosecuting this matter on behalf of the government. At this time Mr. Koukios is unable to state an opinion with regard to the request for severance. He concurs with Movants position that the co-defendant Cinergy should be precluded from presenting an extortion and/or economic duress defense. WHEREFORE based upon the foregoing the Defendant Jean Rene Duperval requests that this Court sever him from his co-defendant Cinergy or in the alternative enter an order precluding Cinergy from presenting extortion and/or economic duress defense.

Respectfully submitted, LAW OFFICES OF JOHN E. BERGENDAHL 25 S.E.2nd Avenue, Suite 1105 Miami, Florida 33131 Telephone No.: (305) 536-2168 Facsimile No.: (305) 536-2170 vaneri17@bellsouth.net By: s/John E. Bergendahl John E. Bergendahl Florida Bar No. 327761

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was filed electronically by CM/ECF system with the Clerk of Court and electronic copy furnished to all counsel of record, this 16th day of February, 2012.

s/ John E. Bergendahl John E. Bergendahl