[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 16, 2010
JOHN LEY
No. 09-11446
CLERK
________________________
D. C. Docket No. 07-20999-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANKLIN DURAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 16, 2010)
Before WILSON and ANDERSON, Circuit Judges, and RESTANI,* Judge.
*
Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
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
2
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
3
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
4
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
5
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
1
Maionica was retained and compensated by the DISIP. He acknowledged that, at all
times, he acted as an agent of the Venezuelan government.
6
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
7
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 introducing
evidence about, or making argument regarding, Duran’s assertion that he did not
know about the duty to notify the Attorney General that he would be acting as a
foreign agent on the grounds that such evidence or argument was irrelevant and
confusing to the jury. Duran responded that knowledge of the notification
requirement is relevant to the jury’s determination of whether Duran acted with
8
knowledge that his conduct was unlawful for purposes of establishing his
participation in the charged conspiracy and whether he acted under the direction
and control of a foreign government. The district court granted the Government’s
motion in limine excluding evidence of mens rea of Duran’s failure to notify the
Attorney General of his conduct as a foreign agent because § 951 is a general
intent crime that does not require proof that a defendant knew of the notification
requirement. However, the district court did not preclude the introduction of mens
rea evidence as to the element of knowingly acting as an agent of a foreign
government.
The Government also filed a motion in limine seeking to introduce evidence
pursuant to Federal Rule of Evidence 404(b) of Duran and Kauffmann’s numerous
schemes of giving “kickbacks” to officials of various agencies of the Venezuelan
government, as well as to officials of various states of Venezuela. The
Government argued that such evidence was admissible under Rule 404(b) because
it was relevant to issues other than Duran’s character, including whether Duran
knowingly conspired with Kauffmann and others to act as agents of the
Venezuelan government; whether Duran knowingly acted as an agent of the
Venezuelan government; and whether there was a preexisting relationship between
Duran and the Venezuelan government. In response, Duran argued that the alleged
9
kickback schemes were irrelevant because none of the kickback schemes involved
the DISIP or any official with an identified connection to the DISIP. The district
court initially denied the Government’s request to introduce evidence of Duran’s
kickbacks and only permitted Kauffmann to testify generally in its case-in-chief
that he and Duran gave kickbacks to Venezuelan government officials.
Mid-trial, however, the district court permitted Duran to raise the defense of
entrapment. Duran initially advanced the theory that he acted wholly independent
of the Venezuelan government based upon concern for his own affairs. Duran
revised this initial defense to posit that, while he initially acted on his own, he
became “entrapped” into acting as Venezuela’s agent by Antonini’s insistence that
the aid he sought be provided by the Venezuelan government. Upon request by the
Government, the district court permitted the introduction of Duran’s kickbacks
through Kauffmann’s rebuttal testimony under Rule 404(b) because the evidence
was directly relevant to show Duran’s predisposition to act as an agent of the
Venezuelan government, and thus was admissible to negate Duran’s entrapment
defense.
At trial, the prosecution presented its case through the testimonies of
Antonini, Maionica, and Kauffmann, as amplified by the FBI’s recorded
conversations. A jury convicted Duran of violating 18 U.S.C. §§ 371 and 951, and
10
the district court sentenced him to 48 months’ imprisonment followed by a term of
three years’ supervised release.
II. DISCUSSION
A. 18 U.S.C. § 951 Is Not Unconstitutionally Vague
We review whether a statute is unconstitutionally vague de novo. United
States v. Paradies, 98 F.3d 1266, 1282 (11th Cir. 1996) (citing Dodger’s Bar &
Grill, Inc. v. Johnson County Bd. of County Comm’rs, 32 F.3d 1436, 1443 (10th
Cir. 1994)). Duran argues that § 951 is unconstitutionally vague as applied to the
facts of this case. Specifically, he contends that he did not have notice, and could
not have had notice, of his obligation to notify the Attorney General of his
purportedly legal conduct in the United States on behalf of the Venezuelan
government, presumably because he was not an employee of or spy for the
Venezuelan government. The jury found, however, that he was an agent of a
foreign government. Section 951(a) provides that “[w]hoever, other than a
diplomatic or consular officer or attaché, acts in the United States as an agent of a
foreign government without prior notification to the Attorney General” is guilty of
a crime. Section 951’s corresponding regulations set forth further guidance on
compliance with the statute. See 28 C.F.R. § 73.1 et seq.
Void for vagueness “means that criminal responsibility should not attach
11
where one could not reasonably understand that his contemplated conduct is
proscribed.” United States v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32–33 (1963)
(citing United States v. Harriss, 347 U.S. 612, 617 (1954)). If a vagueness
challenge to a statute does not involve the First Amendment, the analysis must be
as applied to the facts of the case. United States v. Mazurie, 419 U.S. 544, 550
(1975) (citing Nat’l Dairy Prods. Corp., 372 U.S. at 32); United States v. Awan,
966 F.2d 1415, 1424 (11th Cir. 1992) (citing Maynard v. Cartwright, 486 U.S.
356, 361 (1988)). We apply the two-part standard set forth in Kolender v. Lawson,
461 U.S. 352 (1983), when we evaluate a vagueness challenge; it “requires that a
penal statute define the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement.” Awan, 966 F.2d at 1424
(quoting Kolender, 461 U.S. at 357 (internal quotation marks omitted)).
“[S]tatutes are not automatically invalidated as vague simply because difficulty is
found in determining whether certain marginal offenses fall within their language,”
and there is a strong presumption supporting the constitutionality of legislation.
Nat’l Dairy Prods. Corp., 372 U.S. at 32.
Additionally, as the Supreme Court in Cheek v. United States stated, “[t]he
general rule that ignorance of the law or a mistake of law is no defense to criminal
12
prosecution is deeply rooted in the American legal system.” 498 U.S. 192, 199
(1991). Because this rule is based on the common law notion that presumes that
every person knows the law, and the law is definite, the Supreme Court has applied
it to cases construing criminal statutes. Id.
1. The Plain Language of § 951 is Readily Understandable
In analyzing a vagueness claim, the first step in determining whether a
statute provides fair warning is to begin with the language of the statute itself.
United States v. Hunt, 526 F.3d 739, 743 (11th Cir. 2008). Where the language
alone sets forth plainly perceived boundaries, no further inquiry is necessary. Id. at
744. To violate § 951, (1) a person must act; (2) the action must be taken at the
direction of or under the control of a foreign government; and (3) the person must
fail to notify the Attorney General before taking such action. See 18 U.S.C. §
951(a) (criminalizing “acts” of “an agent of a foreign government without prior
notification to the Attorney General”); 18 U.S.C. § 951(d) (defining “agent of a
foreign government” as “an individual who agrees to operate within the United
States subject to the direction or control of a foreign government or official”); 28
C.F.R. § 73.1(a) (defining “agent” as “all individuals acting as representatives of,
or on behalf of, a foreign government or official, who are subject to the direction
and control of that foreign government or official”); 28 C.F.R. § 73.3 (detailing the
13
procedure and means of giving notification to the Attorney General). Nothing in §
951 is, in the context before us, vague. Here, § 951 plainly and concretely
identifies the conduct which constitutes its violation, and the statute’s language is
clear and unambiguous. See United States v. Latchin, 554 F.3d 709, 715 (7th Cir.
2009) (finding that “[i]t was enough for the jury to conclude that Latchin took acts
of some kind on behalf of Iraq without first registering as a foreign agent”
(emphasis in original)); see also United States v. Truong Dinh Hung, 629 F.2d 908,
920 (4th Cir. 1980) (finding the term “agent” to be clear on the face of the statute);
United States v. Lindauer, S.D.N.Y. 2004, ___ F. Supp. 2d ___, at *4 (No. S2 03
CR. 807 (MBM), Dec. 6, 2004) (same). Therefore, the plain language of § 951 and
its corresponding regulations give notice of what is prohibited and are readily
understandable to a person of ordinary intelligence.
2. Section 951 Is a General Intent Crime
Looking beyond the statutory language, Duran argues that § 951 is
unconstitutionally vague because it must require an element of specific intent that a
defendant knew of the duty to notify the Attorney General of conduct that
necessarily involves espionage or subversive activity as an agent of a foreign
government. Specifically, Duran argues that he could not have had notice of the
notification requirement without the specific intent to fail to notify the Attorney
14
General or the specific intent to engage in espionage or subversive activity, which
would have given him the probability of knowledge of the notification
requirement. However, we have routinely validated general intent statutes against
vagueness challenges without suggesting that the lack of a specific intent
component heightens its need for definiteness or otherwise renders the provision
susceptible to constitutional doubt. See, e.g., United States v. Eckhardt, 466 F.3d
938, 943–44 (11th Cir. 2006) (placing “‘annoying, abusive, harassing, or
threatening telephone calls’ in violation of 47 U.S.C. § 223(a)(1)(C)” is not vague
despite absence of specific intent element); United States v. Hedges, 912 F.2d
1397, 1403 (11th Cir. 1990) (finding strict liability offense requiring no scienter
was not vague as judged by normal constitutional standard).
Section 951’s plain language makes it clear that it is a general intent crime,
as there is no mens rea element on the face of the statute. Additionally, in United
States v. Campa, we affirmatively held that § 951 is a general intent crime, and
knowledge of the notification requirement need not be proven by the Government.
529 F.3d 980, 999 (11th Cir. 2008). We joined the Seventh Circuit in Dumeisi,
holding that “section 951 does not require proof that the defendant knew of the
requirement to register.” Id. The silence of § 951 as to a specific intent element is
dispositive of the fact that Congress intended it to be one of general intent. Id.
15
(citing United States v. Ettinger, 344 F.3d 1149, 1158 (11th Cir. 2003)). “[A]
defendant need not intend to violate the law to commit a general intent crime, but
he must actually intend to do the act that the law proscribes.” Id. (alteration in
original) (quoting United States v. Phillips, 19 F.3d 1565, 1576–77 (11th Cir.
1994)) (internal quotation marks omitted). Section 951 proscribes acting as an
agent of a foreign government without first notifying the Attorney General, and a
person of ordinary intelligence can understand what conduct the statute prohibits.
Although we found that § 951 does not require a showing of a heightened mens rea
requirement, the Government must still prove the mens rea of general intent. Id.
In fact, the district court in Campa correctly instructed the jury “that the defendants
must have acted ‘knowingly,’ and that they must have known ‘that [they] had not
provided prior notification to the Attorney General.’” Id. (alteration in original).
What the statute prohibits is clear on its face, and ignorance of the law is no
defense to a criminal prosecution. See id. Accordingly, the fact that § 951 requires
only general intent merely subjects it to simple linguistic scrutiny.
3. Section 951 Does Not Require Actual Notice or Knowledge of the
Notification Requirement
Despite our precedent and the plain language of § 951, Duran argues that the
statute must be read to require actual knowledge or probability of knowledge of the
notification requirement by affirmatively engaging in espionage or subversive
16
activities. Duran argues that in order to avoid a vagueness challenge, we must read
into § 951 an element of specific intent.
It is true that knowledge of a registration or notification statute is required in
some cases; however, knowledge or probability of knowledge is not an element
under § 951, and Duran is deemed to have notice because the statute requires the
affirmative action and conduct of the defendant. Although § 951 appears to be a
registration statute similar to the ordinance held unconstitutional in Lambert v.
California, in which the defendant was convicted for violating a Los Angeles
ordinance requiring all convicted felons who remain in Los Angeles for more than
five days to register, whether a defendant must register under § 951 depends on the
defendant’s action and conduct as an agent of a foreign government. 355 U.S. 225,
226–27 (1957); see Latchin, 554 F.3d at 715. Whereas the registration statute in
Lambert was held unconstitutional in part because it required the defendant merely
to hold the status of felon, under § 951, it is not sufficient for the defendant to hold
the status of an agent of a foreign government—he must also act. See 355 U.S. at
228 (finding the defendant’s conduct “wholly passive”). Essentially, the Lambert
Court distinguished between misfeasance and nonfeasance, and here, Duran
engaged in misfeasance by “acting” as an agent of a foreign government without
notifying the Attorney General before doing so.
17
Duran also cites United States v. Mancuso, a Second Circuit case in which
the defendant was convicted under a statute that “requires any citizen convicted of
narcotics or marijuana offenses, as well as those who are addicted to, or ‘use’
narcotics drugs, to register with customs officials on leaving and entering the
country.” 420 F.2d 556, 556 (2d Cir. 1970). The Second Circuit held that
knowledge or probability of knowledge of the registration requirement is an
element that must be established in order to be convicted under the statute because
finding that the defendant’s conduct was nonfeasance would render the statute
unconstitutional, but requiring probability of knowledge of the registration
requirement would save it. Id. at 557–58. Thus, the Second Circuit read into the
statute the element of probability of knowledge, finding that the defendant did not
have probability of knowledge of the registration requirement, and therefore, could
not be convicted under the statute. Id. at 558. Duran similarly argues that the
element of knowledge or probability of knowledge of the notification requirement
cannot be separated from § 951. However, the Mancuso decision is only
persuasive authority in this Circuit, and our Court already decided in Campa that
knowledge of the registration requirement is not an element of § 951.
Additionally, § 951 requires misfeasance, which was not required under the statute
18
at issue in Mancuso.2 Thus, unlike the registration requirements in Lambert and
Mancuso, which were based on the defendant’s status as a convicted felon or
narcotics violator, conviction under § 951 involves affirmative action or conduct
on behalf of a foreign government, and Duran is deemed to have notice.
Duran argues that in order to have sufficient notice of the notification
requirement, his conduct must also have necessarily involved an intent to engage in
espionage or traditional notions of spying and subversive activity. He argues that
his purportedly innocent conduct could not have given him the probability of
knowledge of the registration requirement. Duran relies on the legislative history
of § 951 and argues that all of the cases that involve criminal prosecution under §
951 relate to some form of subversive activity or espionage-related component.
However, there is no suggestion in the language of the statute, the legislative
history, or cases that convictions under § 951 require the conduct to be of that
nature. To the contrary, the activities that fall within § 951’s purview have never
been expressly or by judicial interpretation limited to those bearing upon national
security or even those which by their nature are criminal or inherently wrongful.
2
While in some areas the distinction between nonfeasance and misfeasance may not be
clear, this is not an issue for this case. Status is not the issue in any sense, rather specific actions
are at issue. Further, if there were any such confusion, the area of foreign intelligence activities
is one which is highly regulated and a notification or registration requirement normally would
not be unexpected by one who acts as an intermediary for a foreign government.
19
See Latchin, 554 F.3d at 715 (uncertain acts of “some kind” were sufficient to
establish guilt under § 951 (emphasis in original)); Dumeisi, 424 F.3d at 581
(transmitting publicly available information was sufficient).3 In fact, the Northern
District of Illinois found that § 951 is not unconstitutional, even though it requires
registration when no future criminal activity is anticipated. United States v.
Melekh, 193 F. Supp. 586, 592 (N.D. Ill. 1961).
Relying on legislative history, Duran asserts that his failure to have
anticipated the statute’s registration requirement stemmed from the fact that his
conduct did not involve espionage or traditional spying on the United States
government, what he categorizes as the primary focus of § 951. “When the text of
a statute is plain, however, we need not concern ourselves with contrary intent or
purpose revealed by the legislative history.” Hunt, 526 F.3d at 744. Duran
contends that for over ninety years, the only application of § 951 has been to
prosecute cases dealing with espionage or subversive activities against the United
States. However, the plain language of § 951 does not exclude from its scope
cases that do not involve such subversive activities. “Congress is free to pass laws
with language covering areas well beyond the particular crisis du jour that initially
3
Although these cases involved agents of a foreign government acting for espionage-
related purposes and goals, the conduct for which the agents were convicted under § 951 did not
involve illegal activity or traditional subversive conduct.
20
prompted legislative action.” Id.
Although Congress’ original intent in 1917 was national security, defense,
and targeting espionage and subversive acts,4 over time, the original 1917 Act
broke off into three directions to form three separate registration or notification
statutes dealing with agents of foreign governments. Congress enacted legislation
targeted specifically at such subversive acts through the Foreign Agents
Registration Act of 1938 (“FARA”)5 and 50 U.S.C. § 851,6 and Congress separated
4
The earliest form of § 951 was enacted on June 15, 1917, shortly after the United States
entered World War I. It was part of “An Act To punish acts of interference with the foreign
relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and
better to enforce the criminal laws of the United States, and for other purposes.” Act of June 15,
1917, ch. 30, 40 Stat. 217 (codified as amended at 18 U.S.C. § 951 (1948)). In fact, the
predecessor to § 951 is found in Title VIII, § 3 entitled: “Disturbance of foreign relations.” Id. at
226. Legislative history suggests that the 1917 Act was a war-time act to protect the United
States from subversive elements that could threaten America’s war effort. This is because, in its
Congressional Reports, Congress labeled the act, “To Punish Espionage and Enforce the
Criminal Laws of the United States,” H.R. Rep. No. 65-30, at 1 (1917), and “Espionage Bill,”
H.R. Rep. No. 65-65, at 1 (1917) (Conf. Rep.); H.R. Rep. No. 65-69, at 1 (1917) (Conf. Rep.).
5
FARA, 22 U.S.C. § 611 et seq., is primarily aimed at foreign political propagandists and
political activists that the United States has an interest in keeping track of, and it requires agents
of foreign principals to identify themselves and their foreign principals, disclose their activities,
and file and label political propaganda. FARA’s registration provision states in pertinent part,
“No person shall act as an agent of a foreign principal unless he has filed with the Attorney
General a true and complete registration statement . . . unless he is exempt from registration.” 22
U.S.C. § 612(a). Thus, this is one example of a statutory registration requirement enacted after
the 1917 Act that specifically covers “agents of foreign principals” as defined under 22 U.S.C. §
611(c).
6
On August 1, 1956, Congress enacted 50 U.S.C. § 851 “Registration of certain persons;
filing statement; regulations” under Title 50 “War and National Defense,” Chapter 23 “Internal
Security,” Subchapter V “Registration of Certain Persons Trained in Foreign Espionage
Systems.” Section 851 states in pertinent part that,
[E]very person who has knowledge of, or has received instruction or assignment
21
§ 951, classifying it under “Foreign Relations.” The limited legislative history
persuasively suggests that Congress chose to separate § 951 and treat it as a catch-
all statute that would cover all conduct taken on behalf of a foreign government.7
Thus, Duran’s argument that he could not have had notice of the registration
requirement under § 951 is meritless because registration is not only required of
spies or foreign agents engaged in subversive acts under FARA or § 851, but it
also reaches beyond such classifications to any affirmative conduct undertaken as
an agent of a foreign government. Additionally, 28 C.F.R. § 73.6 states that “[t]he
filing of a notification under [§ 951] shall not be deemed compliance with the
requirements of the Foreign Agents Registration Act of 1938, as amended, 22
in, the espionage, counter-espionage, or sabotage service or tactics of a
government of a foreign country or of a foreign political party, shall register with
the Attorney General by filing with the Attorney General a registration statement
in duplicate, under oath, prepared and filed in a such manner and form, and
containing such statements, information, or documents pertinent to the purposes
and objectives of this subchapter as the Attorney General, having due regard for
the national security and the public interest, by regulations prescribes.
Thus, § 851 is an espionage registration statute, while § 951 is a broader, catch-all notification
statute aimed at all foreign relations in general.
7
On March 28, 1940, the 1917 version of § 951 was amended and codified under Title 22
“Foreign Relations and Intercourse” Section 601 “Acting as a foreign governmental agent
without notice to Secretary of State.” 22 U.S.C. § 601 was codified under the same subchapter
as FARA. Act of March 28, 1940, ch. 72, § 6, 54 Stat. 79, 80 (codified at 22 U.S.C. § 601).
Then, in 1948, 22 U.S.C. § 601 was repealed and re-codified under 18 U.S.C. § 951 “Agents of
foreign governments” under Chapter 45 “Foreign Relations.” Thus, it became a completely
separate notification statute from FARA, and it continues to cover any action of conduct by an
agent of a foreign government.
22
U.S.C. § 611 et seq., nor compliance with any other statute.”
The Government is vested with sound discretion in determining who to
prosecute and under what laws to prosecute. Here, the Government exercised its
prosecutorial discretion to convict Duran for violating § 951, which permits
prosecution so long as Duran acted on behalf of a foreign government and failed to
notify the Attorney General of such action, regardless of the nature of such action.8
The broad sweep of § 951 creates a plethora of possibilities under which
those engaged in purportedly legal conduct on behalf of a foreign government
could be convicted if an agent of a foreign government fails to notify the Attorney
General of such conduct. Here, it is hard to imagine that Duran was acting
completely innocently because his actions generally involved bribery and
extortion, even if not violations of United States law. Section 951 sweeps broadly
because the Government has an interest in knowing the identity of those acting on
behalf of a foreign government within the United States, whether the action is legal
or not. By its plain text, the statute placed Duran on notice that his conduct was
unlawful.
Section 951 is not unconstitutionally vague as applied to Duran. The jury
8
It is therefore understandable why the district court excluded evidence regarding the
foreign policy between the United States and Venezuela because such evidence is irrelevant and
has no relation to the elements of §§ 951 or 371 or to the exercise of the Government’s
prosecutorial discretion.
23
determined that Duran acted to convince Antonini to sign a power of attorney and
delivered false documents to Antonini; that his action was on behalf of the
Venezuelan government; and that Duran failed to notify the Attorney General of
such action before acting. This Court has already determined that § 951 is a
general intent crime, and Duran did not need to know of the notification
requirement before acting. Section 951 covers any and all affirmative conduct
taken on behalf of a foreign government, and is not limited to espionage or
subversive activities. The case for upholding Duran’s conviction under § 951 is
particularly strong because the language is readily understandable by a person of
ordinary intelligence, his conduct involved some form of bribery or extortion on
behalf of the Venezuelan government, and Duran’s conviction was not based on
mere status as an agent of the Venezuelan government.9
B. Evidentiary Issues
We review evidentiary rulings for an abuse of discretion. Eckhardt, 466
F.3d at 946 (citing United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir.
2005)).
1. Evidence of Knowledge of the Notification Requirement under §
951 Was Properly Excluded
9
Because Duran’s conduct was not innocent, we need not in this case express an opinion
as to the constitutionality of possible applications of § 951 to completely innocent conduct.
24
Duran argues that the district court abused its discretion in excluding
evidence of mens rea to show that Duran and his co-conspirators did not know of
the notification requirement under § 951. As discussed in § A supra, this Court in
Campa held that a defendant need not know of the notification requirement under §
951 in order to be convicted. 529 F.3d at 999. “For a conviction of conspiracy,
there must be proof of (1) an agreement between two or more persons, (2) an
unlawful purpose, and (3) an overt act committed by one of the coconspirators in
furtherance of the conspiracy.” United States v. Wieschenberg, 604 F.2d 326, 331
(5th Cir. 1979).10 “In addition, ‘in order to sustain a judgment of conviction on a
charge of conspiracy to violate a federal statute, the Government must prove at
least the degree of criminal intent necessary for the substantive offense itself.’” Id.
(quoting United States v. Feola, 420 U.S. 671, 686 (1975)). Thus, the Government
had to prove that Duran knowingly acted as an agent of a foreign government
without first notifying the Attorney General, and that his co-conspirators knew that
he acted as such.
Duran argues that because conspiracy and aiding and abetting require
willfulness, they import a higher mens rea into the substantive charge under § 951,
10
In Bonner v. City of Prichard, this Court adopted as binding precedent all decisions of
the former Fifth Circuit handed down prior to October 1, 1981. 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
25
and thus, evidence of Duran’s averred lack of knowledge of the registration
requirement is relevant. Although conspiracy is a specific intent crime, and aiding
and abetting of a substantive violation must be willfully undertaken, those theories
of vicarious liability do not import into either the conspiracy charge or the
substantive offense under § 951 that Duran be on actual notice of the registration
requirement. See Feola, 420 U.S. at 686–87. Feola reiterates the longstanding and
uniformly recognized rule that the conspiracy statute does not impose its scienter
requirement upon the general intent offense that is the object of the conspiracy.
Id.; see also United States v. Muncy, 526 F.2d 1261, 1264 (5th Cir. 1976) (citing
Ingram v. United States, 360 U.S. 672, 678 (1959)).
The district court did not abuse its discretion in excluding evidence of Duran
and his co-conspirators’ lack of knowledge of the registration requirement under §
951 because this Court’s precedent makes clear that knowledge of the registration
requirement is not an element of the offense under § 951. Campa, 529 F.3d at 999.
2. Evidence of State of Mind Exception to the Hearsay Rule Was
Properly Excluded
Duran argues that the district court abused its discretion in excluding
admissible hearsay evidence under the Federal Rule of Evidence 803(3) state of
mind hearsay exception proffered by Duran to show that he did not intend to act as
an agent of the Venezuelan government. Rule 803(3) provides that regardless of
26
whether the declarant is unavailable as a witness, the hearsay rule does not
exclude:
A statement of the declarant’s then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive, design, mental
feeling, pain, and bodily health), but not including a statement of memory or
belief to prove the fact remembered or believed.
The Supreme Court held that out-of-court statements admitted into court to
establish intent are admissible. Mutual Life Ins. Co. of N.Y. v. Hillmon, 145 U.S.
285, 295 (1892). “[T]he state-of-mind exception does not permit the witness to
relate any of the declarant’s statements as to why he held the particular state of
mind, or what he might have believed that would have induced the state of mind.”
United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir. 1980).
Duran argues that several hearsay statements should not have been excluded
under Rule 803(3) because they tended to prove that Duran did not intend to act as
an agent of the DISIP. The Government argues that the district court never
reached the question of whether the contested testimony lay outside the permissible
scope of Rule 803(3); rather, the court’s rulings were based upon its finding that
the testimony was irrelevant and excludable under Rule 401. That Duran told a
United States customs agent that he was in the United States to meet with
Antonini, while he was carrying newspaper articles related to the Antonini matter
was properly excluded because it did not meet Rule 401’s test for relevancy, while
27
statements concerning Venoco’s future did not fall within the state of mind
exception because they explain why Duran had a concerned state of mind.
Further, the final statement, that Duran told Maionica “I’m never bringing
[Antonini] that money,” was arguably relevant but not particularly probative. D.E.
409 at 4. While Duran argues that his statement was a clear expression of intent
used to show Duran was not acting as an agent of the DISIP, the Government
correctly argues that Duran’s proclaimed intent to deprive Antonini of his $2
million bribe provides no insight as to whether Duran had, over the preceding four
months, acted as Venezuela’s agent. Additionally, the Government correctly
argues that Duran’s acknowledgment that the DISIP was going to entrust him with
$2 million in cash strongly suggests that he was, in fact, Venezuela’s trusted
representative. The admissibility of Duran’s statement that he did not intend to
deliver the money to Antonini for the purpose of showing that Duran did not intend
to act as an agent of the DISIP was a close call under Rule 803(3), and the
exclusion of the statement, if error, was harmless.
3. The Rule 404(b) Evidence Was Properly Admitted
Duran argues that the district court abused its discretion by admitting
evidence of Duran and Kauffmann’s payment of illegal kickbacks to various
Venezuelan government officials to establish his motive and intent to commit the
28
charged crimes under Federal Rule of Evidence 404(b), as well as to counter his
belated claim of entrapment by showing predisposition to commit the crimes.
Under Rule 404(b), evidence of uncharged criminal conduct is admissible
only if relevant to an issue other than the defendant’s character or propensity to
commit a crime. See United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)
(en banc). Rule 404(b) allows for the introduction of evidence of an extrinsic act if
the Government “can demonstrate: (1) a proper purpose for introducing the
evidence; (2) that the prior act occurred and that the defendant was the actor; and
(3) that the probative value of introducing the evidence outweighs any prejudicial
effect the evidence might have.” United States v. Cancelliere, 69 F.3d 1116, 1124
(11th Cir. 1995) (citing United States v. Perez-Garcia, 904 F.2d 1534, 1544 (11th
Cir. 1990)). Duran contends that the evidence of giving kickbacks to the
Venezuelan government and various officials was not properly offered to show
intent or motive, but merely as improper propensity evidence, as reflected in the
prosecutor’s closing argument, in which he referred to Duran’s “life of crime.”
D.E. 422 at 109–10.
The evidence of Duran’s kickbacks was properly admitted by the district
court under Rule 404(b). First, the Government provided a proper purpose for
introducing the evidence because Kauffmann’s testimony showed similar criminal
29
acts by Duran that went to Duran’s intent and motive to knowingly act as an agent
of the DISIP. Second, Kauffmann’s testimony stated that Duran paid kickbacks to
various Venezuelan government officials. See United States v. Dickerson, 248
F.3d 1036, 1047 (11th Cir. 2001) (citing United States v. Bowe, 221 F.3d 1183,
1192 (11th Cir. 2000)) (finding that uncorroborated testimony provided sufficient
basis for concluding that the defendant committed extrinsic acts).11 Third, the
danger of unfair prejudice to Duran was minimal because the Government showed
that the introduction of the kickbacks was probative to establish the relationship
between Duran and the Venezuelan government, and the court instructed the jury
regarding the proper purpose of such evidence. See United States v. Baker, 432
F.3d 1189, 1205 (11th Cir. 2005) (quoting United States v. Meester, 762 F.2d 867,
875 (11th Cir. 1985)) (stating that effectiveness of a limiting instruction should be
part of the court’s analysis in determining admissibility under Rule 404(b)); D.E.
348 at 85–86.
In addition to being admitted under Rule 404(b) for a proper purpose, the
kickback evidence was properly admitted in order for the Government to rebut
Duran’s entrapment defense by establishing Duran’s predisposition to act as an
agent of a foreign government without first notifying the Attorney General.
11
Duran does not dispute that he gave such kickbacks, only that such evidence should be
excluded.
30
Entrapment requires “government inducement of the crime and a lack of
predisposition by the defendant to commit the crime.” United States v. Ventura,
936 F.2d 1228, 1230 (11th Cir. 1991) (citing Mathews v. United States, 485 U.S.
58, 63 (1988)). After the defendant raises the defense of entrapment, the burden
shifts to the Government to show that the defendant was predisposed to commit the
offense charged beyond a reasonable doubt. Id. (citation omitted). According to
Duran, the kickback evidence was not sufficiently similar to the violation of § 951
or the conspiracy to violate § 951 because Duran’s previous transactions with the
Venezuelan government were not with the DISIP or connected to this case.
However, because similar acts used to demonstrate predisposition are offered
precisely to show propensity, they are more broadly applicable, and their use is not
subject to the normal constraints of evidence admitted pursuant to Rule 404(b).
See United States v. Burkley, 591 F.2d 903, 922 (D.C. Cir. 1978); United States v.
Dickens, 524 F.2d 441, 444 (5th Cir. 1975) (citations omitted).
Essentially, because the defendant puts his character at issue by raising an
entrapment defense, he cannot complain that the Government introduces evidence
as to such character. Sorrells v. United States, 287 U.S. 435, 451 (1932). Finally,
the Government argued that Duran’s previous dealings with the Venezuelan
government were based upon his agreement to “kick back” profits to influential
31
officials. Similarly, Duran’s anticipated benefits in this case were dependent upon
his willingness to extort or bribe Antonini into remaining silent in order to receive
favors from the DISIP or Venezuelan government in the future.
The district court did not abuse its discretion in admitting the Government’s
Rule 404(b) evidence of Duran’s payment of kickbacks to various Venezuelan
government officials because it showed Duran’s intent, motive, and predisposition
to knowingly act as an agent of a foreign government.
C. Any Prosecutorial Misconduct Was Harmless
Duran alleges that the Government engaged in prosecutorial misconduct
during his closing argument by improperly commenting on the Rule 404(b)
evidence, with statements that Duran “spent the last ten years of his life bribing . . .
officials” and that Duran had been involved in a “life of crime.” D.E. 422 at 82,
109–10. We review allegations of prosecutorial misconduct de novo because it is a
mixed question of law and fact. Eckhardt, 466 F.3d at 947. In analyzing
allegations of prosecutorial misconduct, we must assess whether the challenged
comments were improper, and if so, whether they affected the substantial rights of
the defendant. Campa, 529 F.3d at 997 (quoting United States v. Castro, 89 F.3d
1443, 1450 (11th Cir. 1996)). “A defendant’s substantial rights are prejudicially
affected when a reasonable probability arises that, but for the remarks, the outcome
32
of the trial would have been different.” Eckhardt, 466 F.3d at 947 (citing United
States v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998)). “When the record
contains sufficient independent evidence of guilt, any error is harmless.” Id.
(citing United States v. Adams, 74 F.3d 1093, 1097–98 (11th Cir. 1996)).
Although the Government’s comments could be construed by the jury as an
effort to characterize the challenged remarks as improper propensity evidence,
there was more than enough other evidence of guilt beyond a reasonable doubt for
the jury to convict Duran of violating §§ 951 and 371. Because the district court
properly instructed the jury as to the purpose for which Rule 404(b) evidence was
introduced, we find that the prosecutor’s comments did not prejudicially affect
Duran’s substantial rights at his trial, and therefore, any error was harmless.
III. CONCLUSION
We affirm the convictions of Duran under 18 U.S.C. §§ 371 and 951.
Section 951 is not unconstitutionally vague as applied to Duran. The district court
did not abuse its discretion by by excluding evidence of Duran’s lack of knowledge
of the notification requirement under § 951, by excluding Duran’s hearsay
statements, or by admitting the Rule 404(b) evidence of Duran’s kickbacks to
various officials of the Venezuelan government. Finally, although the Government
arguably engaged in prosecutorial misconduct during closing statements, such
33
error was harmless. We therefore affirm Duran’s convictions as to all counts.
AFFIRMED.
34
United States v. Duran
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2010-02-16
Citations: 596 F.3d 1283
Copy Citations