Beruflich Dokumente
Kultur Dokumente
Defendants.
respectfully moves for an in camera inspection of the legal instructions provided to the grand
jury regarding Count One of the Indictment. For the reasons set forth below, Defendants seek
this relief in order to determine whether the instructions provided could support a motion to
I. Introduction
The Court is well aware that heretofore investigations of alleged improper foreign
involvement in American elections have been handled by the United States Department of
Justice (“DOJ”); specifically the Campaign Finance Task Force created by former Attorney
General Reno in 1997, and where the Court worked as a prosecutor from September 1997 to
August 1998. Former Attorney General Reno refused to bow to massive political pressure to
appoint a special counsel, and instead the Task Force methodically investigated and prosecuted
1
Case 1:18-cr-00032-DLF Document 10 Filed 05/14/18 Page 2 of 9
cases through 2000.1 Throughout all of that activity, the DOJ never brought any case like the
Presidential election by allegedly funding free speech. The obvious reason for this is that no
Now, some twenty years later, the Deputy Attorney General acting for the recused
Attorney General has rejected the history and integrity of the DOJ, and instead licensed a Special
Counsel who for all practical political purposes cannot be fired, to indict a case that has
absolutely nothing to do with any links or coordination between any candidate and the Russian
Government.2 The reason is obvious, and is political: to justify his own existence the Special
Counsel has to indict a Russian – any Russian.3 Different from any election case previously
brought by the DOJ, the Special Counsel used the catch-all provision of the federal criminal
code, the defraud prong of conspiracy, 18 U.S.C. § 371, to allege that a foreign corporate
defendant with no presence in the United States and having never entered the United States,
Indictment, Dkt. 1, ¶ 2. Presumably to bolster these allegations (which have a strong odor of
hypocrisy)4, the Special Counsel has pleaded around the knowledge requirements of all related
1
See Ex. A, Thai Businesswomen Agree to Plead Guilty to Campaign Financing Charges, June 21, 2000,
https://www.justice.gov/archive/opa/pr/2000/June/350crm.htm (listing cases brought by the Task Force).
2
Ex. B, Rosenstein: “No Allegation in This Indictment That Any American Had Any Knowledge” of Russian
Election Influence Operation, Real Clear Politics, Feb. 16, 2018,
https://www.realclearpolitics.com/video/2018/02/16/watch_live_deputy_ag_rod_rosenstein_announcement.html.
3
See Casablanca (1942) (Captain Renault states, “Major Strassor has been shot. Round up the usual suspects.”)
4
Between 1946 and 2000, the United States and its agents interfered in many global elections for the purpose of
influencing foreign voters to elect candidates favorable to the United States. See Ex. C, Database Tracks History of
U.S. Meddling in Foreign Elections, National Public Radio, Dec. 22, 2016,
https://www.npr.org/2016/12/22/506625913/database-tracks-history-of-u-s-meddling-in-foreign-elections. When
that interference failed, on occasion the United States directed and/or participated in the removal of elected foreign
leaders. See, e.g., Ex. D, CIA Admits Involvement in Chile, ABC News, Sept. 20, 2000,
https://abcnews.go.com/International/story?id=82588&page=1 (describing declassified report explaining U.S.
involvement in 1973 coup d’état in Chile resulting in the removal and death of democratically elected President
Salvador Allende); Ex. E, In declassified document, CIA acknowledges role in ’53 Iran coup, CNN, Aug. 19, 2013,
2
Case 1:18-cr-00032-DLF Document 10 Filed 05/14/18 Page 3 of 9
substantive statutes and regulations by asserting that Concord conspired to obstruct the functions
of the United States Departments of Justice (“DOJ”) and State (“DOS”), and the Federal Election
Commission (“FEC”).5 But violations of the relevant federal campaign laws and foreign agent
registration requirements administered by the DOJ and the FEC require the defendant to have
acted “willfully,” a word that does not appear anywhere in Count One of the Indictment. See 52
This sleight-of-hand does not relieve the Special Counsel from the requirement that the
indictment contain all of the elements of the offense charged. See Russell v. United States, 369
U.S. 749, 763 (1962). As such, Count One of the Indictment appears to be facially invalid
because it fails to charge an essential element of the offense of conspiracy to defraud the United
States by impairing, obstructing and defeating the functions of the FEC and the DOJ, that is, that
the Defendant acted willfully, in this case meaning that Defendant was aware of the FEC and
FARA requirements, agreed to violate those requirements, and ultimately acted with intent to
violate those requirements. See United States v. Pickett, 353 F.3d 62, 67 (D.C. Cir. 2004)
(dismissing indictment that tracked only part of the statutory language). The absence of the word
“willfully” in Count One of the Indictment establishes that Defendant has a particularized need
to obtain the limited relief sought, that is, an in camera inspection of the legal instructions the
Special Counsel provided to the grand jury. With that information, the Court can determine
3
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whether those instructions could support a motion to dismiss the facially invalid Count One of
the Indictment.
conspiring to defraud the United States “ . . . by impairing, obstructing and defeating the lawful
functions of the Federal Election Commission, the U.S. Department of Justice and the U.S.
in certain domestic activities.” Indictment ¶ 9. The Indictment asserts that the lawful functions
involved were: (1) the FEC’s authority to require certain disclosures, (2) the DOJ’s authority to
require certain persons to register as foreign agents, and (3) the DOS’s authority over issuance of
travel visas. See id. ¶¶ 7, 9 and 25-28. The mens rea alleged in Count One is “knowingly and
intentionally.” Id. ¶ 9.
To obtain disclosure of grand jury materials a defendant must show a particularized need;
specifically, that the material is needed to avoid possible injustice in a judicial proceeding, the
need to disclose outweighs the need for continued secrecy, and the request is structured to cover
only what is needed. See United States v. Proctor & Gamble, 356 U.S. 677, 682-83 (1958).
With regard to legal instructions provided to the grand jury, the Defendant must identify facts
which raise doubts to the accuracy of the instructions. See United States v. Stevens, 771 F. Supp.
2d 556, 567 (D. Md. 2011) (“. . . where a prosecutor’s legal instruction to the grand jury
seriously misstates the applicable law, the indictment is subject to dismissal if the misstatement
casts ‘grave doubt that the decision to indict was free from the substantial influence’ of the
erroneous instruction.” (quoting United States v. Peralta, 763 F. Supp. 14, 21 (S.D.N.Y. 1991)).
4
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A court may authorize disclosure of a grand jury matter at the request of a defendant who shows
that a ground may exist to dismiss the indictment because of a matter that occurred before the
grand jury. See Fed. R. Crim. P. 6(e)(3)(E)(ii). See also United States v. Naegele, 367 B.R. 15,
17 (D.D.C. 2007) (finding a particularized need for in camera inspection of grand jury
transcripts). But see United States v. Singhal, 876 F. Supp. 2d 82, 98-99 (D.D.C. 2012); United
States v. Espy, 23 F. Supp. 2d 1, 10 (D.D.C. 1998); and United States v. Trie, 23 F. Supp. 2d 55,
62 (D.D.C. 1998) (finding no particularized need for disclosure of grand jury instructions where
As best as the Defendant can determine from Count One of the Indictment, the Special
Counsel appears, at least in part, to believe that the Defendant either failed to disclose or caused
the failure to disclose funding for certain electioneering communications to the FEC as required
by 52 U.S.C. § 30104(f).8 See Indictment ¶¶ 7, 11. A violation of this statute requires that the
defendants acted “knowingly and willfully.” See 52 U.S.C. § 30109(d). The Department of
Justice has stated unequivocally that in using 18 U.S.C. § 371 to allege a conspiracy to defraud
the FEC, the government must prove that: (1) the defendant was aware that his or her conduct
was generally unlawful, and (2) that the defendant intended to disrupt and impede the lawful
functioning of the FEC. See Dep’t of Justice, Federal Prosecution of Election Offenses 162-163
Justice conceded that this is arguably an even a higher burden than the “knowingly and willfully”
mental state required by Section 30109(d) itself. Id. See also Bluman v. Federal Election
7
Defendant intends to fully brief this issue in its motion to dismiss the Indictment.
8
There is a serious question about whether the provisions contained in 52 U.S.C. § 30104(f) applied to Concord in
this case. That question will be addressed in a motion to dismiss the Indictment.
5
Case 1:18-cr-00032-DLF Document 10 Filed 05/14/18 Page 6 of 9
Commission, 800 F. Supp. 2d 281, 292 (D.D.C. 2011) (three judge panel of the district court
warning the Department of Justice that seeking criminal penalties against foreign nationals for
making certain prohibited campaign expenditures will require proof of the defendant’s
knowledge of the law); Ex. F, Indictment at ¶ 10, United States v. Hsia, No. 98-cr-0057 (D.D.C.
Feb. 18, 1998) (charging that defendant acted “knowingly and willfully” in conspiring to defraud
the FEC).9 See also United States v. Curran, 20 F.3d 560, 571 (3d Cir. 1994) (in a case
involving conspiracy to defraud the Federal Election Commission, finding an instruction that
contained the word “willfully” to be deficient and requiring a jury instruction that the jury must
find defendant agreed to commit an unlawful act combined with intent to commit the underlying
offense).
The same burden exists under the Foreign Agents Registration Act to prove willfulness.
enforcement.10
grand jury. See United States v. Hillie, 227 F. Supp. 3d 57, 77-78 (D.D.C. 2017). While there is
case law to support the argument that some Section 371 conspiracies to defraud do not require
proof of the mens rea required for related substantive offenses, see, e.g., United States v.
Childress, 58 F.3d 693, 708 (D.C. Cir. 1995), the law relating to such conspiracies which are
9
In United States v. Moore, 612 F.3d 698, 703 (D.C. Cir. 2010), Circuit Judge Kavanaugh in his concurring opinion
noted that Supreme Court case law is clear that statutes prohibiting some regulatory offenses require proof that the
defendant was aware that the conduct was unlawful.
10
There is also serious doubt about whether FARA applied to Concord, and whether the Special Counsel is claiming
that Concord was required to register as a foreign agent. The same is true with respect to the allegations about
obtaining visas through false and fraudulent statements. Those questions will also be addressed in a subsequent
motion to dismiss.
6
Case 1:18-cr-00032-DLF Document 10 Filed 05/14/18 Page 7 of 9
based on complex regulatory offenses allows less leeway. See Section III.B above. The instant
Indictment fails to allege that the Defendant knew it was acting unlawfully and that it intended to
The risk here is acute, that is, a foreign corporation with no presence in the United States
is indicted in an unprecedented case of a type never before brought by the DOJ for conspiring to
defraud the United States purportedly by not complying with certain regulatory requirements that
are unknown even to most Americans. Under these limited circumstances the Court should
conduct an in camera review of the legal instructions provided to the grand jury to determine
whether or not they include information that would support a motion to dismiss the indictment.
See United States v. Hoey, No. 11-cr-337, 2014 WL 2998523, at *3 (S.D.N.Y. July 2, 2014)
(granting motion for in camera review of grand jury legal instructions where defendant “has
come forward with more than mere speculation that the grand jury did not receive the proper
instructions” on the causation element that would trigger a mandatory minimum sentence). See
also Stevens, 771 F. Supp. 2d at 566-68 (dismissing indictment where the government “seriously
misstate[d] the applicable law” to the grand jury); United States v. Bowling, 108 F. Supp. 3d 343,
352-53 (E.D.N.C. 2015) (concluding that “the government’s erroneous legal instruction to the
grand jury concerning the Procurement Integrity Act played a significant and impermissible role
Defendant Concord is seeking the narrowest of relief, simply that the Court conduct an in
camera inspection of the legal instruction the Special Counsel provided to the grand jury with
respect to Count One of the Indictment. If the Court determines that the Special Counsel did not
11
Nothing in this filing should be construed as an admission that Concord committed any of the alleged activities.
7
Case 1:18-cr-00032-DLF Document 10 Filed 05/14/18 Page 8 of 9
provide a complete and accurate mens rea instruction then the instruction should be disclosed to
the Defendant because there may be grounds to dismiss Count One of the Indictment on that
basis.
The Special Counsel has not responded to undersigned counsel’s April 19, 2018 request
By Counsel
/s/Eric A. Dubelier
Eric A. Dubelier
Katherine Seikaly
Reed Smith LLP
1301 K Street, N.W.
Suite 1000 – East Tower
Washington, D.C. 20005
202-414-9200 (phone)
202-414-9299 (fax)
edubelier@reedsmith.com
kseikaly@reedsmith.com
8
Case 1:18-cr-00032-DLF Document 10 Filed 05/14/18 Page 9 of 9
CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of May 2018, the foregoing was electronically filed
with the Clerk of Court using the CM/ECF system, which will then send a notification of such
filing (NEF) all counsel of record registered with the CM/ECF system.
9
Case 1:18-cr-00032-DLF Document 10-1 Filed 05/14/18 Page 1 of 5
EXHIBIT A
Case 1:18-cr-00032-DLF Document 10-1 Filed 05/14/18 Page 2 of 5
CRM
(202) 616-2777
WWW.USDOJ.GOV
https://www.justice.gov/archive/opa/pr/2000/June/350crm.htm 5/14/2018
Case 1:18-cr-00032-DLF Document 10-1 Filed 05/14/18 Page 3 of 5
https://www.justice.gov/archive/opa/pr/2000/June/350crm.htm 5/14/2018
Case 1:18-cr-00032-DLF Document 10-1 Filed 05/14/18 Page 4 of 5
On December 17, 1999, Yogesh Gandhi was sentenced to one year in prison
for mail fraud, tax evasion, and violating federal election laws by
aiding and abetting the making of a political campaign contribution by a
foreign national.
On August 12, 1999, former Lippo Executive John Huang pleaded guilty to
a felony charge, filed in U.S. District Court in Los Angeles, that he
conspired with other employees of the Indonesia-based Lippo Group to
make campaign contributions and reimburse employees with corporate funds
or with funds from Indonesia. He was sentenced to one year of probation,
500 hours of community service, a $10,000 fine and directed by the judge
to continue cooperating with the investigation as a condition of his
probation.
https://www.justice.gov/archive/opa/pr/2000/June/350crm.htm 5/14/2018
Case 1:18-cr-00032-DLF Document 10-1 Filed 05/14/18 Page 5 of 5
In June 1999, Berek Don, former GOP party leader in Bergen County, NJ,
pled guilty to another conduit contribution scheme to the Senator
Torricelli Campaign. Don awaits sentencing. On December 1, 1999, Carmine
Alampi, a Bergen County New Jersey attorney, pleaded guilty to the same
scheme. He awaits sentencing.
On March 23, 1999, Juan C. Ortiz, the Chief Financial Officer of Future
Tech International, Inc., was sentenced to two years probation, $20,000
in fines, and 200 hours in community service for acting as a conduit for
an illegal campaign contribution and participating in the reimbursement
of eight other conduit contributions.
On December 14, 1998, Johnny Chung was sentenced to probation and 3,000
hours of community service for bank fraud, tax evasion and two
misdemeanor counts of conspiring to violate election law.
In 1997, the Task Force obtained guilty pleas from Democratic fund-
raisers Nora and Gene Lum, and their daughter Trisha, and Michael Brown
for illegal fund-raising activities after their cases were referred from
Independent Counsel Daniel Pearson. In August 1998, Gene Lum pleaded
guilty to filing a false 1994 tax return and falsely preparing Nora
Lum's 1994 tax return. After cooperating with the government, he was
sentenced in June 1999, to two years in prison. Nora Lum was sentenced
to 5 months in a halfway house, 5 months in home detention, and ordered
to pay a $30,000 fine, a sentence which Gene Lum also served separate
and apart from the sentence he received for his tax-related conviction.
Trisha Lum and Michael Brown each received probation, a $5,000 fine,
costs of more than $7,000, and were ordered to perform 150 hours of
community service.
###
00-350
https://www.justice.gov/archive/opa/pr/2000/June/350crm.htm 5/14/2018
Case 1:18-cr-00032-DLF Document 10-2 Filed 05/14/18 Page 1 of 8
EXHIBIT B
Case 1:18-cr-00032-DLF Document 10-2 Filed 05/14/18 Page 2 of 8
Case 1:18-cr-00032-DLF Document 10-2 Filed 05/14/18 Page 3 of 8
https://www.realclearpolitics.com/video/2018/02/16/watch_live_deputy_ag_rod_rosenstei... 5/14/2018
Case 1:18-cr-00032-DLF Document 10-2 Filed 05/14/18 Page 4 of 8
https://www.realclearpolitics.com/video/2018/02/16/watch_live_deputy_ag_rod_rosenstei... 5/14/2018
Case 1:18-cr-00032-DLF Document 10-2 Filed 05/14/18 Page 5 of 8
On September 13th of 2017, soon after the news media reported that
the special counsel's office was investigating evidence that Russian
operatives had used social media to interfere with the 2016 election,
one defendant allegedly wrote, quote, "We had a slight crisis here at
work. The FBI busted our activity. So I got preoccupied with
covering tracks together with my colleagues," end quote.
Count two charges conspiracy to commit wire fraud and bank fraud
by Internet Research Agency and two of the individual defendants.
And counts three through eight charge aggravated identity theft by
https://www.realclearpolitics.com/video/2018/02/16/watch_live_deputy_ag_rod_rosenstei... 5/14/2018
Case 1:18-cr-00032-DLF Document 10-2 Filed 05/14/18 Page 6 of 8
I want to thank the federal agents and prosecutors who are working
on this case for their exceptional service, and I'll be happy to take a
few questions.
https://www.realclearpolitics.com/video/2018/02/16/watch_live_deputy_ag_rod_rosenstei... 5/14/2018
Case 1:18-cr-00032-DLF Document 10-2 Filed 05/14/18 Page 7 of 8
Jessica.
Catherine?
https://www.realclearpolitics.com/video/2018/02/16/watch_live_deputy_ag_rod_rosenstei... 5/14/2018
Case 1:18-cr-00032-DLF Document 10-2 Filed 05/14/18 Page 8 of 8
QUESTION: Have you had any assurances from the Russians that
they will provide these individuals for prosecution?
https://www.realclearpolitics.com/video/2018/02/16/watch_live_deputy_ag_rod_rosenstei... 5/14/2018
Case 1:18-cr-00032-DLF Document 10-3 Filed 05/14/18 Page 1 of 4
EXHIBIT C
Case 1:18-cr-00032-DLF Document 10-3 Filed 05/14/18 Page 2 of 4
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EXHIBIT D
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https://abcnews.go.com/International/story?id=82588&page=1
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https://abcnews.go.com/International/story?id=82588&page=1
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https://abcnews.go.com/International/story?id=82588&page=1
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EXHIBIT E
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While this might be the CIA's first formal nod, the U.S. role has long been known.
President Barack Obama acknowledged the United States' involvement in the coup during a 2009
speech in Cairo.
"In the middle of the Cold War, the United States played a role in the overthrow of a democratically
elected Iranian government," the president said.
In 2000, then-U.S. Secretary of State Madeleine Albright spoke of the intervention, and in the same
year, the New York Times published what it said was a leaked 1954 CIA-written account of the
overthrow.
Iranians elected Mossadegh prime minister in 1951. Quickly, the leader moved to nationalize oil
production in the country -- a move that would have been a serious blow to the United States and
Britain and a win for the USSR.
Because of the failure of oil negotiations with Iran, along with a number of other issues, the United
States was concerned "that Iran was in real danger of falling behind the Iron Curtain."
"If that happened, it would mean a victory for the Soviets in the Cold War and a major setback for the
West in the Middle East," Donald N. Wilber, a principal planner of the mission, wrote within months of
the overthrow. "It was the aim of the TPAJAX project" -- that was the mission's code name -- "to cause
the fall of the Mossadeq government; to reestablish the prestige and power of the Shah."
Shortly after Mossadegh's election, the CIA began to plan his overthrow. The goal of the coup was to
elevate the strength of Shah Mohammad Reza Pahlavi and appoint a new prime minister -- Gen.
Fazlollah Zahedi.
Before the coup, the agency -- along with the British Secret Intelligence Service -- helped foment anti-
Mossadegh fervor using propaganda, according to CIA documents. "In Iran, CIA and SIS propaganda
assets were to conduct an increasingly intensified effort through the press, handbills and the Tehran
clergy in a campaign designed to weaken the Mossadeq government in any way possible," Wilber
wrote.
On August 19, 1953, the coup swung into full effect as the CIA and British intelligence agency helped
pull pro-Shah forces together and organized large protests against Mossadegh.
https://www.cnn.com/2013/08/19/politics/cia-iran-1953-coup/index.html
Case 1:18-cr-00032-DLF Document 10-5 Filed 05/14/18 Page 4 of 4
"The Army very soon joined the pro-Shah movement and by noon that day it was clear that Tehran, as
well as certain provincial areas, were controlled by pro-Shah street groups and Army units," Wilber
wrote. "By the end of 19 August ... members of the Mossadeq government were either in hiding or were
incarcerated."
In order to provide Zahedi, the country's new prime minister, with some stability, the "CIA covertly made
available $5,000,000 within two days of Zahedi's assumptions of power."
After the coup, Mossadegh was sentenced to death, but the sentence was never carried out. The
former leader died in Tehran in 1967.
Even 60 years removed, the 1953 coup still hangs over U.S.-Iran relations.
Iranian politicians and religious leaders still use the coup as a way to foment anti-American sentiment.
Mahmoud Ahmadinejad, Iranian president from 2005 until earlier this year, demanded apologies from
the United States for "crimes" the CIA committed in Iran during the 1953 coup.
"The issue is more than academic," wrote Byrne of George Washington University. "Political partisans
on all sides, including the Iranian government, regularly invoke the coup to argue whether Iran or foreign
powers are primarily responsible for the country's historical trajectory, whether the United States can be
trusted to respect Iran's sovereignty, or whether Washington needs to apologize for its prior interference
before better relations can occur."
https://www.cnn.com/2013/08/19/politics/cia-iran-1953-coup/index.html
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EXHIBIT F
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Defendants.
[Proposed] ORDER
Pursuant to Rule 6(e)(3)(E)(ii) for In Camera Inspection of Legal Instructions Provided to the
Grand Jury Regarding Count One of the Indictment, it is hereby ORDERED that the motion is
GRANTED.
SO ORDERED.