Siriwan Reply

Case 2:09-cr-00081-GW Document 74
Filed 10/04/11 Page 1 of 45 Page ID #:831
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KELLEY DRYE & WARREN LLP David E. Fink (STATE BAR NO. 169212) 10100 Santa Monica Boulevard, Twenty-Third Floor Los Angeles, California 90067-4008 Telephone: (310) 712-6100 Facsimile: (310) 712-6199 dfink@whiteo.com Appearing Specially KELLEY DRYE & WARREN LLP David E. Frulla (D.C. Bar No. 414170; Md. Bar Member) Darryl W. Jackson (D.C. Bar No. 261305 Shaun M. Gehan (D.C. Bar No. 483720; Me. Bar No. 9380) Washington Harbour, Suite 400 3050 K Street, NW Washington, DC 20007-5108 Telephone: (202) 342-8400 Facsimile: (202) 342-8451 dfrulla@kelleydrye.com djackson keIleydrye.com sgehan elleydrye.corn Admitted Pro Hac Vice for Purposes of Appearing Specially KELLEY DRYE & WARREN LLP Julie Vasady-Kovacs (N.Y. Bar No. 2225936) 101 Park Avenue New York, NY 10178 Telephone: (212) 808-7800 Facsimile: (212) 808-7898 jvasady-kovacs@kelleydrye.com Admitted Pro Hiic Vice for Purposes of Appearing Specially Attorneys Appearing Specially for Defendants JUTHAMAS SIRIWAN and JITTISOPA SIRI WAN UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CR Nos. 09-00081-1; 09-00081-2
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UNITED STATES OF AMERICA, The Honorable George H. Wu, Crtrm. 10

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Plaintiff,
DEFENDANTS' BRIEF IN REPLY TO THE GOVERNMENT'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS THE INDICTMENT Date: October 20, 2011 Time: 8:30 a.m. Crtrm. : 10
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DEFENDANTS' BRIEF IN REPLY
JUTHAMAS SIRIWAN and JITTISOPA SIRI WAN, Defendants.
[Declarations of Shaun M Gehan and Dornnapha Suaree filed concurrently herewith]
Date of Filing:
October-4, 2011
KELLEY DRYE & WARREN LLP WASHINGTON HARBOUR, SUITE 400 3050K STREET, NW WASHINGTON, DC 20007
TO THE COURT, THE PARTIES AND THEIR COUNSEL: PLEASE TAKE NOTICE that on October 20, 2011, at 8:30 a.m., or as soon thereafter as the parties may be heard, before the Honorable George H. Wu, United States District Judge, in Courtroom 10, located at the 312 North Spring Street, Los Angeles, CA 90012, Defendants Juthamas Siriwan ("Governor Siriwan") and Jittisopa Siriwan ("Ms. Siriwan") (collectively, "the SiriwanO, through undersigned counsel, will and hereby do file their Brief in Reply to the Government's Opposition to move for an order dismissing the indictment against them pursuant to Rule 12(b)(3). DATED: October 4, 2011 Respectfully submitted, KELLEY DRYE & WARREN LLP By /s David E. Fink David E. Fink Attorneys Appearing Specially for Defendants Juthamas Siriwan and Jittisopa Siriwan
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TABLE OF CONTENTS 2 3 4 5 6 7 8 9 10 Page
I. II.
The Government Inappropriately Argues Facts Outside the Indictment International Promotion Money Laundering A. The-Money Laundering_Charges Cannot Stand Because They Are Not "Separate and Distinct" From the Alleged Bribes 1. 2. The Indictment Does Not Allege Distinct Acts Overlapping Elements of Section 1956(a)(2)(A) and the SUA Show that the Same Offense Is Criminalized By Both
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The Transactions Serving As the Basis for the Money Laundering Counts Do Not "Promote" the Alleged Underlying Bribery There Is No Intent to Promote Alleged in the Indictment
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D.
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Lenity, Due Process, and Fair Notice Weigh In Favor of Dismissing the Money Laundering Counts Against the Siriwans
III. Section 152 is Not a MLCA Predicate IV. The Court Has No Jurisdiction Over Defendants' Derivative Conduct A. The MLCA Is Not Ambiguous and Its Plain Language Provides No Basis for Jurisdiction Over the Siriwans 1. Subsection (b) Is Not Limited to Civil Actions None of the Terms Used in Paragraph (b)(2) Limit Its Application to Civil Actions MLCA Subsection (f) Has Independent Effect
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2.
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3. B.
Caselaw and Proper Construction of a Penal Statute Support Defendants Paragraph (b)(2) Reading 1. Bodmer and Stein Do Not Support the Government's Argument The MLCA's Extraterritorial Reach Must be Construed Strictly 3. Lenity Requires an Interpretation Favorable to the Defendants
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V.
The Government Has Failed to Rebut the Principles of International Law That Support Dismissal of the Indictment A. Section 9 and Other Principles of International Law The Government has Not Rebutted Defendants' Analysis of Relevant Principles of International Law 1. 2. The MLCA Has Limited Extraterritorial Application Defendants Have Shown -that-an-Exercise-of-Prescriptive Jurisdiction in This Case is Unreasonable
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B.
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VI. Conclusion
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DEFENDANTS BRIEF IN REPLY
TABLE OF AUTHORITIES
Page
CASES Albright v. Oliver, 510 U.S. 266 (1994) Bell v. United States, 349 U.S. 81 (1955) Benetti v. United States, 97 F.2d 263 (9th Cir. 1938) Blockburger v. United States, 284 U.S. 299 (1932) Conn. Nat. Bank v. Germain, 503 U.S. 249 (1992) Deal v. United States, 508 U.S. 129 (1993) Hartford Fire Ins. Co. v. California 509 U.S. 764 (1993) Jones v. United States, 529 U.S. 848 (2000) Lauritzen v. Larsen, 345 U.S. 571 (1953) McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963) Microsoft Corp. v. AT&T Corp., 550U. S. 437 (2007) Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) Morrison v. Nat'l Australia Bank Ltd., 561 U.S. , 130 S.Ct. 2869, 2883 (2010) Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804). Nat'l Surety Co. v. United States, 29 F.2d 92 (9th Cir. 1928) Rubin v. United States, 449 U. S. 424 (1981)
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Russell v. United States, 369 U.S. 749 (1962) Siderman de Blake,v. Republic of Argentina, 965 F. 2d 699 (9th Cir. 1992) Sompo Japan Ins.. Co. of Am. v: Union Pac. R.R., 456 F.3d 54 (2d Cir. 2006) United States v. Anvari-Hamedaiii, 378 F. Supp. 2d 821 (N.D. Ohio 2005) United States v. hodmer, 342 F. Supp. 2d 176 (S.D.N.Y. 2004) United States v. Caplinger, 339 F.3d 226 (4th Cir. 2003) United States v. Corey, 232 F.3d 1166 (9th Cir. 2000) United States v. Cruikshank, 92 U.S. 542 (1875) United States v. Esfahani, No. 05-CR-0255, 2006 WL 163025, at *1 (N.D. Ill. 2006) United States v. Hall, 613 F.3d 249 (D.C. Cir. 2010) United States v. Heijnen, 376 F. Supp. 2d 1193 (D.N.M. 2005) United States v. Huezo, 546 F.3d 174 (2d Cir. 2008) United States v. Jackson, 935 F.2d 832 (7th Cir.1991) United States v. Jensen, 690 F. Supp. 2d 901 (D. Alaska 2010) United States v. Johnson, 971 F.2d 562 (10th Cir. 1992) United States v. Kim brew, 406 F.3d 1149 (9th Cir. 2005) United States v. Krasinski, 545 F.3d 546 (7th Cir.) 2008 United States v. Lanier, 520 U.S. 259 (1997)
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2 26, 33 4 6 13, 21, 22 9 28, 30, 34 2 6 4 20 4 4 2 8 12 5, 9 13
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United States v. Lloyds TSB Bank PLC, 639 F. Supp. 2d 314, (S.D.N.y. 2009)
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United States v. Montoya, 945 F.2d 1068 (9th Cir. 1991) United States v. Moreland, 622 F.3d 1147 (9th Cir.) 2010) United States v. Nippon Paper Indust. Co., Ltd., 944F. Supp. 55(D. Mass. 1996) United States v. Nordic Village, Inc., 503 U.S. 30 (1992) United States v. Ors, Inc., 825 F. Supp. 255 (D. Haw. 1992) United States v. Piervinanzi, 23 F.3d 670 (2d Cir. 1994) United States v. Public Warehousing Co., 2010 U.S. Dist. LEXIS 142327, at *43 n.16 (N.D. Ga. Sept. 2, 2010) United States v. Ruiz-Castro, 125 F. Supp. 2d 411(D. Haw. 2000) United States v. Santos, 553 U.S. 507 (2008) United States v. Savage, 67 F.3d 1435 (9th Cir. 1995) United States v. Smith, 18 U.S. (5 Wheat.) 153, 5 L.Ed. 57 (1820) United States v. Stein, 1994 WL 285020 (E.D. La. June 23, 1994) United States v. Trejo, 610 F.3d 308 (5th Cir. 2010) United States v. Universal C. I. T. Credit Corp., 344 U. S. 218 (1952) United States v. Van Alstyne, 584 F.3d 803 (9th Cir. 2009) United States v. Vasquez-Velasco, 15 F.3d 833 (9th Cir. 1994) United States v. Wiltberger, 5 Wheat. 76, L.Ed. 37 (1820) (Marshal, C J.)
United States v. Yakou, 428 F.3d 241 (D.C. Cir. 2005) Winslow v. United States, 216 F.2d 912 (9th Cir. 1955)
STATUTES
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15 U.S.C. 78dd-2(g)(2) 18 U.S.C. (b)(4)(A) 18 U.S.C. 1956(a)(1)(A)(i) 18 U.S.C. 1956(a)(2)(A) 18 U.S.C. 1956(a), (b)(1) 18 U.S.C. 1956(b) (2000) 18 U.S.C. 1956(b)(2) 18 U.S.C. 1956(b)(2)(A) 18 U.S.C. 1956(c)(7)(B)(iv) 18 U.S.C. 1956(f) 18 U.S.C. 2 Fed. R. Civ. P. 4(f) Fed. R. Crim. P. 4(c)(2) Fed. R. Crim. P. Rule 4(c) OTHER AUTHORITIES ASIAN Y.B. INT'L L. VOL. 5 271 (Kluwer Law Intl 1995) Bank for International Settlements Final Award of 19 September 2003 23 REP. INT'L ARB. AWARDS 153 (2004) BLACK'S LAW DICTIONARY 42 (7th ed. 1999) Christopher L. Blakesley & David E. Stigall, The Myopia ofU v. Martinelli: Extraterritorial Jurisdiction in the U.S. 21st Century, 39 Geo. Wash. Int'l L. Rev. 1 (2007) Deserters of Casablanca Case (Fr. v. Ger.), Award of the Tribunal (Perm. Ct. Arb. May 22, 1909) available at http://vvvv-w.pca-cpa.org/upload/files/DesertersofCasalanca EnglishAward%Medited.pdf
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Finn Seyersted,
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Jurisdiction over Organs and Officials of States, The Holy See and Intergovernmental Organisations, 14 INT'L & COMP. L.Q. 31 (1965)....25, 26
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FINN SEYERSTED, COMMON LAW OF INTERNATIONAL ORGANIZATIONS xxi (Martinus Nijhoff Pub. 2008) ). M. Douglass Bellis,
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Statutory Structure and Legislative Drafting- Conventions: A Primer for Judges, 8-11 (Federal Judicial Center 2008)
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Rain Liivoja, Service Jurisdiction Under International Law, 1 1 MELB. J. INT'L L. 309 (2010) Rep. No. 433 99th Cong., 2d Sess., at 12 (Sept. 3, 1986) RESTATEMENT (THIRD) 402 cmt.f
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Restatement (Third) 401 cmt. a.

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RESTATEMENT (THIRD) 403(2)(c)

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RESTATEMENT (THIRD) 403 cmt.a

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RESTATEMENT (THIRD) 403 cmt.b

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RESTATEMENT (THIRD) 403(1)

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RESTATEMENT (THIRD) at 237

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RESTATEMENT (THIRD) 403 cmt. 2

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RESTATEMENT (THIRD) 403(2)(g),(h)

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Sen. Treaty Doc. 100-18, KAV 1941 (1990)
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The Government argues strenuously it has charged just a run-of-the-mill money laundering case and chastises the Siriwans for not supplying their rebuttal case in their opening brief. But, the Government fails even to acknowledge the Justice Department's own statement, at page one of Defendant's brief, that it has obtained exactly one conviction of a foreign official under this novel charging strategy, and that by-plea-agreement. (Def. Mot. to Dismiss -(9Def. (Dock. No. 64).) Moreover, Defendants were careful to cite legal principles relevant to the issues raised. The Government is correct this is a complex case raising many important issues, as is clearly evident from its Opposition Brief To summarize, Defendants argue the Government failed to allege a distinct money laundering crime in the Indictment, that principles of jurisdiction over foreign persons (as opposed to subject matter jurisdiction over the conduct), and that issues of international and Thai law, all informed by important, recognized due process considerations of lenity and fair warning, bar the case as charged. The issue at hand is whether the Siriwans were properly charged in the Indictment, as a legal matter, and whether, under the relevant United States and Thai statutes properly construed, jurisdiction lies in this Court over the derivative conduct alleged. Resolution of these issues relies neither on evidence in the Greens' case, nor with passing of judgment on the Justice Department's ability to use similar charging tactics against other defendants under different factual settings.
I. The Government Inappropriately Argues Facts Outside the Indictment

The Government, as it did regarding the Siriwans' special appearance motion, repeatedly refers to evidence and proceedings from the trial in U.S. v. Green, CR-08-59-GW (C.D. Cal. 2008). Respectfully, each of these references is inappropriate for the Court's consideration. No information put forward by the Goverment from the Greens' record or the Court's knowledge may be used to determine this Motion to Dismiss.
III
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A well-settled criminal and civil law tenet is that a court may not take judicial notice of proceedings in specific prior litigation in the same court. Nat'l Surety Co. v. United States, 29 F.2d 92, 97 (9th Cir. 1928). "The very purpose of the requirement that a man be indicted by a grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or -judg' United States v. Ors, Inc., 825 F. Supp. 255, 257 (D. Haw. 1992) (quoting Russell v. United States, 369 U.S. 749, 771 (1962)). "In considering a motion to dismiss, the court is limited to the face of the indictment and must accept the facts alleged in the indictment as true." United States v. Ruiz-
Castro, 125 F. Supp. 2d 411, 413 (D. Haw. 2000) (citing Winslow v. United States, 216 F.2d 912, 913 (9th Cir. 1955)). Accordingly, [Ole indictment should contain not only the elements of the offense charged, it should also fairly inform the defendant of the charge against which he must defend. The indictment serves to enable a defendant to pled [sici an acquittal or conviction and bar future prosecutions for the same offense. The indictment also serves to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction should there be one. United States v. Jensen, 690 F. Supp. 2d 901, 907-08 (D. Alaska 2010) (citing United States v. Cruikshank, 92 U.S. 542, 558 (1875)). The fundamental and long-standing requirement that a motion to dismiss must be adjudged from the face of the Indictment embodies constitutional and evidentiary protections. "To prepare a record upon which a review can be had, concerning matters involved in some prior litigation, it is necessary that evidence of the material parts of proceedings in the former case be offered and embodied therein." Benetti v. United States, 97 F.2d 263, 266 (9th Cir. 1938). Evidence from the Greens' trial must meet evidentiary standards before it can be used against the Siriwans. Accordingly, the Court should decide the pending motion based on the law and facts actually alleged in the Indictment.
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II. International Promotion Money Laundering

To prevail on the international promotion money laundering charges against the Siriwans, the Government must show that the Siriwans transported, transmitted or transferred a monetary instrument or funds from the United States to a place outside of the United States (1) with the intent; (2) to promote the carrying on of; (3) a (separate and distinct) specified -unlawful-activity. 1-8 'ftS.CA 1956(a)(2)(A). The transfer of funds which compromises money laundering must be a separate offense from the underlying specified unlawful activity for a reason:
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Courts must determine, within the context of the facts presented, that the defendant committed the former offense with the intent to promote the carrying on of the latter offense. That is, one act must "promote" the carrying on of the other, and the defendant must have intended that result. As set forth in the Siriwans' Motion to Dismiss, and below, the money laundering counts in the Indictment must be dismissed because (1) the Government fails to allege separate and distinct acts as the basis for the money laundering and the specified unlawful activity; (2) the alleged transfers of money comprising the money laundering charges did not "promote" the underlying alleged bribery payments; and (3) the Government does not allege any facts which show that the Siriwans intended to promote the underlying unlawful activity. For all of these reasons, the derivative money laundering charges against the Siriwans must be dismissed.
A.
The Money Laundering Charges Cannot Stand Because They Are Not "Separate and Distinct" From the Alleged Bribes As the Government concedes, "the offense of money laundering [i.e., the
transport, transmit or transfer of the monetary instrument or funds] must be separate and distinct from the underlying offense that generated the money to be laundered [i.e., the specified unlawful activity ("SUA")]." ((Gov't Opp. at 7 (Dock. No. 67) (quoting Def. Br. at 3-5) (describing this as a "well-known concept")); ((id. at 10, n. 11 ("That is not to say that the SUA need not be a separate and distinct crime."))
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This rule applies equally to international promotion money laundering under 1956(a)(2)(A), as it does to promotion laundering under 1956(a)(1)(A)(i). See, e.g., United States v. Trejo, 610 F.3d 308, 314 (5th Cir. 2010) (a (a)(2)(A) case emphasizing "Congress meant to create a separate crime of money laundering, discrete and apart from the underlying substantive offense").' Courts examine money-laundering-charges-in context-to determine whether-the govemment-has alleged distinct acts comprising the separate offense. The Government has not met this burden because (1) the Indictment fails to allege separate and distinct acts as the bases for the money laundering charges and the SUAs; and (2) the elements of money laundering and the SUAs here overlap such that the same offense is criminalized under both. 1. The Indictment Does Not Allege Distinct Acts
While recognizing that the money laundering offense must be distinct, the Government still argues "the monetary transfer that is the basis of the international promotion money laundering transaction can also serve as the basis of a separate charge alleging as an offense the very SUA being promoted." (Gov't Opp. at 1314.) This is incorrect; the same transaction which is an essential element of the SUA cannot also serve as the overt act for a money laundering charge. (Def. Br. at 6) (citing United States v. Hall, 613 F.3d 249, 254-55 (D.C. Cir. 2010)). 2
Trejo, a decision made following conviction at trial, addressed the sufficiency of evidence needed to prove intent to promote. 610 F.3d at 315. By contrast, here the issue is, as a threshold matter, whether the Government has alleged "a separate crime of money laundering, discrete and apart from the ynderlying substantive offense." Id. at 314 (citations omitted). The Government's claim that (a)(1)(A)(i) cases are irrelevant in a (a)(2)(A) case (e.g., Gov't Opp. at 13, 17), is disingenuous. Because there are relatively few (a)(2)(A) cases compared to those involving (a)(1)(A)(1), courts dealing with the former frequently look to decisions involving the latter in interpreting the statute. See Trejo, 610 F.3d at 315 (citing United States v. Huezo, 546 F.3d 174, 179 (2d Cir. 2008)); see also United States v. Savage, 67 F.3d 1435, 1440 (9th Cir. 1995) (citing United States v. Jackson, 935 F.2d 832, 842 (7th Cir.1991)); Sompo Japan Ms. Co. of Am. v. Union Pac. R.R., 456 F.3d 54, 66 (2d Cir. 2006) ("The use of similar language, let alone identical language, in two different provisions of the same statute is, as the Supreme Court has emphasized, a
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In fact, all cases cited by the Government as purported examples of a single act constituting the basis for both the international money transfer and the underlying unlawful activity (Gov't Opp. at 14-15) actually are cases in which the court, addressing the defendant's conduct in context, found divisible "analytically distinct" acts underlying the money laundering and the predicate unlawful conduct. These are cases irrwhich-the-transferring-offunds overseas was an additional step above and beyond what was required to complete the specified unlawful activity. In United States v. Piervinanzi, 23 F.3d 670 672 (2d Cir. 1994), for example, the American defendants planned to rob an armored car before determining that illegally wiring money out of a bank would be "less violent." They decided to send those stolen funds abroad to circumvent strict U.S. banking regulations, and chose the Cayman Islands specifically because they believed its strong bank secrecy laws would prevent these funds' tracing. Id. at 673. In upholding the money laundering charges, the court found "analytically distinct" the act underlying the wire fraud charge (i.e., "Nile act of attempting to fraudulently transfer funds out of the banks") and the act underlying the money laundering charge (i.e., "the attempted transmission of those funds overseas"). Id. at 679. Once the funds were wired out of the bank, the fraud was complete; the defendants could have been charged with bank and wire fraud even if those funds were wired to another domestic bank. It was the additional step of attempting to transmit those funds overseas that served as the basis of the money laundering charges. The other cases the Government cites similarly involve "analytically distinct" acts. See United States v. Krasinski, 545 F.3d 546, 551 (7th Cir. 2008) (drug distribution based on act of distributing drugs in the U.S.; money laundering on transfer funds between U.S. and Canada to purchase additional drugs); United States v. Moreland, 622 F.3d 1147, 1168 (9th Cir. 2010) (mail fraud based on strong indication that the two provisions should be interpreted paripassu,i.e, in the same manner.") (alteration, internal quotation marks, and citation omitted.)
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domestic pyramid scheme; money laundering on sending funds offshore to conceal the funds from the government); Savage, 67 F.3d at 1440 (mail and wire fraud based on collection of money from domestic investors in fraudulent scheme; money laundering on international monetary transfers making the domestic scheme appear legitimate); United States v. Anvari-Hamedani, 378 F. Supp. 2d 821, 825 (N.D. Ohio 2005) (International-Emergency Economic Powers Act violation -based on fund transfers from intermediary international banks to Iran; money laundering on fund transfers from domestic accounts to the intermediary banks); United States v. Esfahani, No. 05-CR-0255, 2006 WL 163025, at *1 (N.D. Ill. 2006) (same). In contrast, when considered in context, the international wire of funds to foreign-domiciled defendants, such as the Siriwans, to effectuate alleged bribe payments simply does not constitute any "analytically distinct" activity to support money laundering. This is not a case in which the international transfer was a separate step divisible from the underlying SUA; indeed, it is difficult to imagine how anyone could bribe a foreign national with no ties to the U.S. without the bribe payment somehow being transferred or transported outside of the country. Here, the Government has alleged no international transportation of funds aside from the bribe payments themselves. These transfers cannot serve as the basis for both the money laundering counts against the Siriwans and the SUAs. The Indictment's failure to identify any separate and distinct activity must prove fatal to its charges. 3
2.
Oyer1appin2 Elements of Section 1956(a)(2)(A) and the SUA Show that the Same Offense Is Criminalized By Both
Quoting selectively from Defendants' brief, the Government disputes the Siriwans' claim that the Money Laundering Control Act ("MLCA") and Foreign
The Government's six-page attack on the contention "that money to be laundered [under 1956(a)(2)(A first needs to be generated by a separate and distinct crime," (Gov't Opp'n at , is a straw man. -The Siriwans never argue that "ill-gotten'gains" from a -"completed predicate offense" are necessary to charge money laundering. (Id. at 8.) The Government's contrary arguments are irrelevant.
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DEFENDANT$' BRIEF IN REPLY
Corrupt Practices Act ("FCPA") share a monetary transfer as an "essential element," arguing instead the FCPA unlike the MLCA can be violated merely by the "promise or offer of something 'of value.' (Gov't Opp. at 15-16). This misses the mark. First, the Siriwans' argument in full is that use of an "instrumentality of interstate commerce corruptly in furtherance of' an alleged bribe under the FCPA canand here doesdefine -the analytically same conduct alleged as criminal under (a)(2)(A), to wit, "transfer[ing] or transport[ing] a monetary instrument or funds. . . with the intent to promote the carrying on of' the alleged bribe. (Id. at 4 (quoting 1956(a)(2)(A)).) It is this transmission through an "instrument of interstate commerce" which, when done to further or promote an alleged bribe, is criminalized under both statutes. Such a payment is also a predicate to the Thai SUAs. More to the point, this is not a theoretical FCPA 78dd-2(a) "offer, . . . promise to pay, or authorization of the payment" case. Under the facts alleged in this case, the Siriwans are charged with causing actual transfers of money through an instrumentality of interstate commerce (see Indictment 1132). Further, the fact Defendants are "foreign persons," (and specifically, Thai) is itself central to the underlying FCPA and Thai anti-bribery law predicates. For the Greens to have violated the FCPA by bribing the Siriwans, money would ordinarily have to be sent from the U.S. to a place outside the U.S. In context, the Greens could not have participated in a kickback scheme involving Thai public contracts and officials without transferring funds abroad. This is exactly what is alleged. Unlike all the (a)(2)(A) cases the Government cites or the Siriwans have found, this is the only one in which the foreign transfer was itself a contextually essential component of the SUAs as charged. Thus, the alleged transfer of funds to international accounts is not a "separate and distinct" offense. /// II!
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B.
The Transactions Serving As the Basis for the Money Laundering Counts Do Not "Promote" the Alleged Underlying Bribery The money laundering counts against the Siriwans also must fail because the
Siriwans' alleged actions could not have "promoted" the alleged underlying bribery. Cases interpreting "intent to promote" under either paragraphs (a)(2)(A) or (a)( 1)(A)4 look-to-individual circumstances;finding an -international transfer of funds "promotes" the underlying specified unlawful activity only in a limited number of contexts, none of which are applicable here. First, courts have found "promotion" where the international transfer of funds was done specifically to conceal from the U.S. government funds from the underlying unlawful activity. See Moreland, 622 F.3d at 1168 (defendant's money laundering charge was based on sending funds from domestic mail fraud scheme "offshore to conceal [them] from the government"). Second, a defendant may "promote" the underlying SUA by transferring money internationally to add an "aura of legitimacy" to that underlying activity. See Savage, 67 F.3d at 1440-41 (defendant's use of the foreign bank account was essential to the fraud because "[t]he transfers made the program appear legitimate," thus inducing investors to continue participation) (citing United States v. Johnson, 971 F.2d 562, 566 (10th Cir. 1992) (defendant's use of wire fraud proceeds to support his home office lent a "aura of legitimacy [which] was bolstered in the
The Government's criticism of the Siriwans' reliance on out-of-circuit and (a)(1)(A) cases for guidance on (a)(2)(A)'s interpretation is misplaced. First, the Siriwans do rely onlTinth Circuit (a)(2)(A) cases. (Def. Br. at 5, 8, 10 (citing Savage, Moreland). Second, as noted supra n.2, courts deciding (a)(2)(A) cases frequently refer to (a)(1)(A) cases to help interpret that statute including regarding "intent to promote." Indeed, even Piervinanzi, upon which the Government most heavily relies, looked to a series of (a)(1)(a)(i) cases to divine the meaning of "intent to promote." 23 F.3d at 681. Second, the Government itself relies on out-of-circuit cases (e.g., Piervinanzi) and (a)(1)(A) cases (e.g., Montoya) for its (a)(2)(A) arguments. If the "intent to promote" analysis is limited to Ninth Circuit (a)(2)(A) cases, however, the small body of case law supports a much more narrow definition of "promote" than the Government suggests.
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minds of investors who saw the defendant's house")); United States v. Montoya, 945 F.2d 1068, 1076 (9th Cir. 1991) (deposit, but not receipt, of bribe check found to promote crime by allowing its characterization as "a legitimate honorarium"). Finally, courts outside of the Ninth Circuit have found "promotion" where the international transfer of money ensures the continuing operation of the underlying SUA. See, e.g., Krasinski, 545 F.3d at 551 (defendant -transferred-fundsabroad to purchase additional drugs in Canada, ensuring domestic drug distribution scheme's continuing operation); Trejo, 610 F.3d at 314-316 (defendants transferred money to pay drug traffickers in Mexico, thus ensuring continued operation of drug trafficking scheme); United States v. Caplinger, 339 F.3d 226, 233 (4th Cir. 2003) (defendant transferred funds internationally to pay fraudulent drug business's operating and advertising expenses, ensuring its continued operation). The Indictment alleges none of these promotional purposes as to any of the discrete alleged bribe payments. First, this is not a case like Moreland in which the Government alleges a separate act by U.S. domiciles of sending funds from an underlying unlawful scheme abroad solely for the purpose of hiding the funds from the government. Nor is this a case like Savage or Montoya, in which the U.S. Government alleges the Siriwans directed the Greens to send the funds abroad in order to add an "aura of legitimacy" to an underlying scheme. Finally, this is not a drug case like Krasinski, Trejo, or Caplinger, where the ongoing underlying scheme to distribute drugs required sending funds abroad to purchase additional drugs or advertise the underlying unlawful business. Combined with the requirement that, for (a)(2)(A) money laundering, the foreign transaction must be analytically distinct from the underlying unlawful activity, the unitary transactions forming the alleged Count One conspiracy's overt acts5 and Counts Two through Eight did not "promote" the foreign bribery charges.
5
Specifically, Overt Acts Numbers 3, 5, 10-13, 15, 16. (Indictment at 12-17.)

The foreign transactions are the alleged bribe payments themselves. It defeats the language of (a)(2)(A), in this specific context, to have the transfers which comprise essential parts of the FCPA violation and the foreign bribery charges also comprise these underlying SUAs' "promotion." The SUAs and international fund transfers are not analytically distinct, and the same offense cannot promote itself.
C.
There Is No Intentto Promote Alleged-hrthe Indictment Even were the Court to find the Indictment sets forth two different offenses,
one of which promoted the other, the money laundering claims still must fail. The Government has not alleged the Siriwans had the requisite intent to promote the SUAs under 18 U.S.C. 1956(a)(2)(A). The "intent to promote the carrying of," in (a)(2)(A), relates to, in this case, the "transmission" or "transfer" referred to in (a)(2) and specified in the Indictment. As Trejo explained: [T]he evidence must show that the defendant's conduct not only promoted a specified unlawful activity but that he engaged in it with the intent to further the progress of that activity. The _justification for this rigorous mens rea requirement is that, in enacting the statute, Congress meant to create a separate crime of money laundering, discrete and apart from the underlying substantive offense. 610 F.3d at 314 (emphasis in original) (citation omitted). It is the Government's burden to allege, via the Indictment, that the foreign monetary transfers were undertaken with the requisite "intent." Here, however, the Indictment fails to set forth any facts to support the notion the Siriwans directed payments with the "intent" to promote the alleged bribery. In relevant part, the Indictment merely recites that: Co-conspirators Gerald Green and Patricia Green would and did arrange for the corrupt pa ments to be made, for the benefit of Defendant JUTHAMAS SIRI WAN, via international wire transfer. . . from the bank accounts of one or more of the Green Businesses in the Los Angeles area to bank accounts held in the name of JITTISOPA SIRIWAN or the friend at banks in the United Kingdom, Singapore, and the Isle of Jersey. . . . (Indictment 25.) The transactions alleged to form the foreign transactions are
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specified in Count One Overt Acts Numbers 3, 5, 10-13, 15, 16, and Counts Two through Eight. These counts merely allege the bare transmission of funds to effectuate the alleged bribery; not a single transaction is alleged to have been taken with the "intent" to promote the carrying on of the alleged underlying bribery. Other allegations in the Indictment, such as those in 26, 31 ("Overt Act 14"), show that-the-payments were "commissions" owed on-the contracts, or; -iii other words, the bribe payments themselves. Thus, the "intent" demonstrated by the Indictment is the intent to consummate the corrupt arrangement, not to promote its "carrying on." Cf Savage, 67 F.3d at 1140 ("[C]ircumstantial evidence of intent to promote a fraudulent scheme exists if the transfer lends an 'aura of legitimacy' to the scheme."). Here, in contrast, and in the context of this foreign bribery case, the Greens' alleged transfers were not intended to promote the carrying on of the underlying crime, as were the payments in the wire fraud at issue in Savage. The Greens' alleged transfers were the crime. Section (a)(2)(A) deals with transfers made with a specific mental state. The Government makes allegations regarding "concealment," alleged tax evasion, and the like (see, e.g., Indictment at J 13, 21, 29), to attempt to create a sense the whole enterprise was particularly unseemly. However, the manner in which the Government structured its charges demonstrates that the intent of the transactions themselves was to make a corrupt payment, not to "promote" the carrying on of the specified unlawful activity. 6 Thus, the Government has not alleged any facts None of these allegations support international promotion money laundering charges. Rather, they just serve to bring into additional reliefif any more is neededthat the Government is unavailingly trying to thread a camel through the eye of a needle in this case of first impression. The allegations that the funds were sent to non-Thai bank accounts to avoid Thai taxes might support a claim that the transaction was designed to commit a tax offense against a foreign nation, but that is not a recognized predicate under (c)(7)(B). Nor did the Government charge the Siriwans with money laundering under (a)(2)(B)(i), which requires a showing that the money laundered was "proceeds" of the SUA, an element the Government has made clear does not exist in this case. (See, e.g., Gov't Opp. at 2, 9-10.) Finally, the allegations regarding concealment might conceivably have gone to a (a)(2)(B)(i) charge, which also requires proceeds.
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supporting its argument that the Siriwans "intended" to promote the alleged bribery scheme, and the money laundering charges in the Indictment must fail.
D.
Lenity, Due Process, and Fair Notice Weigh In Favor of Dismissing the Money Laundering Counts Against the Siriwans The Government's argument that Section 1956(a)(1)(A) "merger" cases and
the standards set-forth in Blockbargerv. United States, 284 U.S. 2991932), contradict the Siriwans' argument that they cannot be charged under the MLCA where the elements are the same as the underlying crime (see Gov't Opp. at 13-16), is misplaced. Defendants do not argue theirs is a direct "merger" or "multiplicity" case like United States v. Santos, 553 U.S. 507 (2008), or United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005). The Siriwans have not been and indeed, could not be charged by the U.S. with the underlying SUAs (FCPA and Thai law). The reasoning behind the merger cases is applicable here, however. The instant situation is more stark than the merger context. The Government has employed its charging tactic to try to create criminal liability where it would not otherwise exist, rather than "merely" substantially enhancing the penalty, a keystone consideration in Santos. United States v. Van Alstyne, 584 F.3d 803 (9th Cir. 2009), examined the Supreme Court's reasoning in Santos in overturning two money laundering counts involving a mail fraud scheme. Id. at 813-14. Van Alstyne began its analysis by noting "[w]e are 'bound not only by the holdings of [the Supreme Court's] decisions but also by their mode of analysis.' Id. at 813 (quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)) (en banc). Van Alstyne used Santos' "mode of analysis" to "focus on the concrete details of the particular 'scheme to defraud,' finding "that many, if not all, of the fraud counts of which Van Alstyne was convicted could have been charged as money laundering as well, sharply illustrating the 'merger' problem." Id. at 815.
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Santos applied the rule of lenity to hold the MLCA's ambiguous term "proceeds" should not be construed so elastically as to cover the payments to lottery winners and runners, bringing the same conduct under the prohibitions of both the MLCA and anti-lottery laws. 553 U.S. at 515-16 (plurality), 528 (Stevens, J., concurring). The Supreme Court emphasized that money laundering carried significantly greater penalties -than the predicate lottery charge. kL516, 527. This Court should be equally vigilant to ensure the Government does not employ another inherently elastic MLCA term ("to promote" 7) in a manner that extends to foreign government officials derivative criminal liability for FCPA violations, and does so in a manner that could result in a sentence far exceeding the FCPA's five years. Perhaps even more significantly, the Court should not permit such aggressive charging tactics to penalize Thai officials in connection with alleged violations of Thai anti-corruption laws, particularly in the context of Thai Penal Code Section 9, discussed infra at Part IV. (See also Def. Br. at 16-17.) It makes no more sense to discuss the transfer of money to consummate a bribery scheme under these facts as an act designed "promote the carrying on of' bribery than to describe firing a gun at another as an act designed "to promote the carrying on of' assault with a deadly weapon. The act defines the crime, unlike the situation in Montoya where the deposit of a bribe check was found to promote the bribery because it served an ancillary purpose of helping the scheme to succeed by allowing him to claim the funds were "a legitimate honorarium." 945 F.2d at 1076. In United States v. Bodmer, 342 F. Supp. 2d 176 (S.D.N.Y. 2004), where the language and legislative history was ambiguous and no court had previously interpreted the FCPA's personal jurisdiction provisions, the court construed the Regarding the application of lenity, just like "proceeds" in Santos, the MLCA does not define 'promotion," thus requiring judicial interpretation. It is in this interpretation that the rule of lenity becomes operative. United States v. Lanier, 520 U.S. 2592 266 (1997) ("[T]he canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.") (citing cases). 13
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statute, but refused to apply it to Bodmer because "he did not have fair notice that the FCPA's criminal sanctions applied to him, or that his appearance in court triggered the statutory criminal penalty." Id. at 186, 189. Likewise, in this case of first impression, the Siriwans had no "fair warning" their alleged actions could have led to U.S. criminal liability. Id. at 181 (quoting Lanier, 520 U.S. at 266). Thailand, of coursejs a different story. III. Section 152 is Not a MLCA Predicate The Siriwans argued that Thai Penal Code Section 152 made out the crime of honest services fraud, not one of "misappropriation, theft, or embezzlement of public funds." (Def. Br. at 11-13 (quoting 18 U.S.C. 1956(c)(7)(B)(iv)).) The Government cannot rely on an alleged Section 152 offense, as the MLCA does not specify honest services fraud against a foreign nation as a SUA. The only issue is whether Section 152 is a theft statute or not. 8 Defendants have shown it is not. The Siriwans stand on their arguments. Further, on August 23, 2011, the Thai National Anti-Corruption Commission announced its recommendation that the Governor and Ms. Siriwan be charged under Sections 6 and 11 of An Act on Offenses by Public Officials in State or Organizations, 1959 ("The 1959 Act"), 9 and referred the matter to the Attorney General. (Sukkree Decl., Ex. B (final three pages of NACC document).) These sections parallel Thai Penal Code Sections 149 and 157. 10 This is strong evidence that Defendants' analysis is correct. Thai Supreme Court case precedent supports the "honest services" fraud interpretation in a case where a local official was exonerated from Section 152 charges for letting a public contract to a company in which he had an interest, because the contract was on reasonable terms, thus defeating the conflict of interest considerations. (See Ex. A to Declaration of Dornnapha Sukkree ("Sukkree Decl.") (Thai Sup. Ct. Decision 1706/2535)) 9 A copy of the 1959 Act was submitted to this Court during the course of the Greens' trial and can be found at Crim. No. 08-cr-059 (Dock. No. 240-2). 10 (Id. IT 5.) The Act represents specific law, while the Penal Code contains general law. (Id.) As a general matter in Thailand, application of specific law, where available, is preferred. (Id) This being said, the United States has charged the Penal Code violations as SUAs, not the 1959 Act. (Indictment Tif 2,3.) 14
DEFENDANTS' BRIEF IN REPLY 8
With respect to points raised by the Government, Defendants do not concur that they "recognize [that, based on Section 149] the SUA is legitimate." (Gov't Opp. at 27.) The Siriwans challenge the Indictment in the ways specified in this and their initial brief. All Defendants concede is that Section 149 makes out the crime of bribery. As to Defendants' "translation" of Section 152, we simply note
the quote cornes from a copy ofthe Code -published-by-the Thai Office ofthe Attorney General. (See Dock. No. 20-1 at 2.) Stipulations from Green do not govern here. (Gov't Opp. at 28 n.26.) Finally, the Siriwans never claimed that an offense against a foreign nation involving theft of public funds had to involve funds of the U.S. (Id. at 29-30.) That would make no sense. The point was the crime must involve the relevant government's public funds, using case law to show when funds or property can properly be considered those of the government. (Def. Br. at 12-13.) It did not seem necessary to explain the obvious further.
IV. The Court Has No Jurisdiction Over Defendants' Derivative Conduct

The Siriwans previously explained this Court does not have jurisdiction over them for the Count 1 conspiracy charge because: (1) the MLCA restricts jurisdiction over "foreign persons" to cases in which the defendant "commits an offense under subsection (a)," 18 U.S.C. 1956(b)(2)(A) (emphasis added); and (2) the Siriwans are not charged with an offense under subsection (a), but with conspiracy, under subsection (h). (Def. Br. at 13-15.) Nor is there jurisdiction for Counts Two through Eight for the additional reason that 18 U.S.C. 2 does not expand the jurisdiction of the underlying criminal statute." (Id. at 15-16.) In response, the Government argues, contrary to the MLCA's plain language, that paragraph (b)(2), which addresses jurisdiction over foreign persons, applies only to civil actions, and that the court's criminal jurisdiction is set forth As it must, the Government concedes that 2 only "confer[s extraterritorial jurisdiction to the same extent as the offense [I that underlie[s it]."(Gov't Opp'n at 35) (citing United States v. Yakou, 428 F.3d 241, 252 (D.C. Cir. 2005).
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exclusively in subsection (0. (Gov't Opp'n at 31-35.) The Government is wrong. Paragraph (b)(2) unambiguously applies to both criminal and civil MLCA actions. Even were this Court to find the relevant provisions ambiguous, rules of statutory construction favor the same interpretation. Importantly, paragraph (b)(2) has never been interpreted in this context or even at all. This issue stands on terra incognita. A. The-MLCA Is-Not-Ambiguous and Its Plain Language Provides -No Basis for Jurisdiction Over the Siriwans When interpreting a statute, "a court should always turn first to one, cardinal canon before all others," which is that "courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Conn. Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992). "When the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete." Id. at 254 (quoting Rubin v. United States, 449 U. S. 424, 430 (1981)). The MLCA allows the Government to bring both civil and criminal actions to enforce the statute. Paragraph (a) sets forth conduct that will result in criminal liability and subsection (b)(1) imposes civil liability for the same conduct. 18 U.S.C. 1956(a), (b)(1). Paragraph (b)(2), entitled "Jurisdiction over foreign persons," provides that "[for purposes of adjudicating an action filed or enforcing a penalty ordered under this section, the district courts shall have jurisdiction over any foreign person . . . ." 18 U.S.C. 1956(b)(2) (emphasis added). The words "under this section" unambiguously refer to the entirety of section 1956. 12 (See Gov't Opp. at 31-32.) Thus, under the rule in Connecticut National Bank, the jurisdictional limitations of paragraph (b)(2) must be read to apply to any "action filed" or "penalty enforced" under the MLCA, regardless of whether the
See M. Douglass Bellis, Statutory Structure and Legislative Drafting Conventions: A Primer for Judges, 8-11 (Federal Judicial Center 2008) (subdivisions of a statute are (from largest to smallest) sections, subsections, paragraphs, subparagraphs, clauses, subclauses, items, and subitems).
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action or penalty is brought under the criminal (under paragraph (a)), or civil (under subsection (b)(1)) provisions of the statute. 503 U.S. at 253-54. 1. Subsection (b) Is Not Limited to Civil Actions Initially, the Government baldly asserts that subsection (b), which is entitled simply "Penalties," is "the civil penalties provision." (Gov't Opp'n at 31.) Not only is the Government-wronvitmisteadingly quotes legislative history-from-the th original MLCA's 1986 passage as support. (Id. at 32 (quoting Rep. No. 433 99 Cong., 2d Sess., at 12 (Sept. 3, 1986)).) At that time, subsection 1956(b) was comprised of only one provision, that which is now paragraphn (b)(1), granting the federal government a right of civil action for certain violations of subsection (a) and section 1957, see 18 U.S.C. 1956(b) (2000), so a discussion of civil penalties only is unsurprising. The relevant provision did not enter the law until 2001 when it became the broader "penalties" provision. (Def. Br. at 22.) From this (ancient) history, the Government argues that paragraph (b)(2) only governs jurisdiction in civil actions. (Id.) The words Congress actually used refute this characterization. 13 First, as stated above, paragraph (b)(2) expressly applies to any action or penalty civil or criminal "under this section," i.e., under the entirety of 1956. 18 U.S.C. 1956(b)(2). Second, paragraph (b)(3), entitled "Court authority over assets," also permits a court to take actions necessary to ensure satisfaction of a judgment "under this section." Id. This provision authorizes a court to ensure performance of criminal fines of up to $500,000 that may be imposed under
13 Paragraph (b)(2)'s legislative history does provide an example of its application to a civil action. See H.R. REP. No. 107-205 pt.1 at 54, available at http://www.gpo.gov/fdsys/pkg/CRPT-107hrpt250/pdf/CRPT-107hrpt250-ptl.pdf . The committee report's citing an example differs from stating the provision is exclusively civil, particularly in the face of express statutory -language that does not limit its application to civil cases in any way. See Dep't of Housing and Urban Devel. v. Rucker, 535 U.S. 125, 133-34 (2002) (inappropriate to consider legislative history unless statute ambiguous); Consumer Prod. Safety Corn 'n v. GTE Sylvania Inc., 447 U.S. 102, 108 (1980) ("We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself.").
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subsection (a), as well as civil fines under paragraph (b)(1). Id. (a), (b)(1). Third, paragraph (b)(4) provides that a court may appoint a Federal Receiver "to satisfy . . . a criminal sentence under section 1957 or subsection (a) of this section. . . ." Id. (b)(4)(A) (emphasis added). These paragraphs amply demonstrate the "Penalties" referenced by subsection (b)'s title can be either civil or criminal. In-contrastparagraph (b)(1), setting -forth MLCA's civil-penaltiesjs-the only
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paragraph of subsection (b) limited on its face to civil penalties. Id. (b)(1). If Congress had desired to limit (b)(2)'s application to (b)(1)'s civil remedies, it certainly knew how. Elsewhere in subsection (b), Congress granted courts the power to "appoint a Federal Receiver. . . to satisfy a civil judgment under this subsection. ." Id. 1956(b)(4)(A) (emphasis added). However, Congress did not so limit the scope of paragraph (b)(2)'s jurisdiction, which must be read to refer to both criminal and civil actions. Conn. Nat. Bank, 503 U.S. at 253-54.
2.
None of the Terms Used in Paragraph (b)(2) Limit Its Application to Civil Actions
Next, the Government asserts paragraph (b)(2) is "limited to civil enforcement" because such is "manifest from the language of the provision itself." (Gov't Opp'n at 33.) Such a reading is far from "manifest" and cannot be derived from the words Congress actually employed. The Government highlights that (b)(2) authorizes "service of process. . . made under the Federal Rules of Civil Procedure or the laws of the country in which the foreign person is found," arguing it would be "nothing short of nonsensical to allow for extraterritorial criminal jurisdiction over foreign persons to be perfected upon" service that complies with the Federal Rules of Civil Procedure. (Gov't Opp'n at 34.) In fact, the notion is not farfetched. First, the MLCA is both a civil and criminal statute. As such, the (b)(2) "long-arm" provision is intended to gain jurisdiction over defendants found outside the United States' territorial jurisdiction under both types of actions. In general, the
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Government would serve a defendant in a foreign country either: (1) pursuant to the Federal Rules of Civil Procedure if the proceeding were civil; or (2) pursuant to the laws of the country where the defendant is found if the proceeding were criminal. 18 U.S.C. 1956(b)(2). However, there is also a recognized possibility that Federal Rules of Civil Procedure can, in the appropriate circumstances, be used to serve criminal defendants abroad. I4 Indeed, these methods of service comport with both the Federal Rules of Civil Procedure, which do provide a method for serving persons in a foreign country, Fed. R. Civ. P. 4(f), and the Federal Rules of Criminal Procedure, which do not. Fed. R. Crim. P. 4(c)(2). Unlike the federal civil rules, which authorize service in foreign countries, the federal criminal rules provide only that a summons may be served "within the jurisdiction of the United States or anywhere else a federal statute authorizes an arrest." Id. Here, the applicable federal statute would be the MLCA, which provides that criminal process be served according to "the laws of the country in which the foreign person is found." 18 U.S.C. 1956(b)(2). This makes sense because, as the parties briefed before this Court, a treaty and a whole, well-developed body of Thai law govern how indictments and arrest warrants should be served on those within Thailand's jurisdiction. Finally, none of the operative phrases "adjudication," "action," "service of process," and certainly not "commits an offense" have a strictly civil connotation. The term "adjudicate," for instance, means only to "[t]o rule upon judicially." BLACK'S LAW DICTIONARY 42 (7th ed. 1999). Similarly, "action" is relevantly defined as "[a] civil or criminal judicial proceeding." Id. at 28. "Service of process" means only "[t]he formal delivery of other legal notice, such
14
Cf., United States v. Public Warehousing Co., 2010 U.S. Dist. LEXIS 142327, at *43 n.16 (N.D. Ga. Sept. 2, 2010) magistrate's opinion), overruled on other grounds, 2011 WL 1126333 (N.D. Ga. March 28, 2011) (discussing Federal Rule of Criminal Procedure 57 and general allowance for use of civil rules when, as with Criminal Rule 4, there is no provision for foreign service of criminal process).
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as a pleading." Id. at 1972. In fact, the Federal Rules of Criminal Procedure, in Rule 4, provide for issuance and "service" of summonses in appropriate circumstances. Fed. R. Crim. P. Rule 4(c). Foreign criminal defendants must be served with an indictment, information, and/or arrest warrant in accordance with proper procedure under the relevant treaty or other provision of foreign law. These words and-phrases are all used in the criminal context. I5
3.
MLCA Subsection (f) Has Independent Effect
The Government further argues subsection (0, providing "[t]here is extraterritorial jurisdiction over the conduct prohibited by this section if. . . the conduct is by a United States citizen or, in the case of a non-United States citizen, the conduct occurs in part in the United States," is the only applicable jurisdictional provision. 18 U.S.C. 1956(f) (emphasis added); (Gov't Opp'n at 31-35.) The Siriwans do not contest subsection (f)'s grant of jurisdiction over certain "conduct" (although Defendants do note it conveys a limited grant of exterritorial jurisdiction, i.e., only if the non-U.S. citizen's "conduct occurs in part in the United States"). (Parenthetically, Defendants note the Indictment does not allege Ms. Siriwan was ever in the U.S., much less engaged in "conduct" here. As such, a proper allegation of jurisdiction even under subsection (0 has not been made against her, and the Indictment should be dismissed on that ground alone.) In dealing with "conduct," subsection (f) is concerned with subject matter jurisdiction.' By contrast, paragraph (b)(2) details how a court may obtain personal jurisdiction over that "foreign person" who engages in such conduct. See
See, e.g., Deal v. United States, 508 U.S. 129, 132(1993) ("adjudication of 15 guilt"); Albr!ght v. Oliver, 510 U.S. 266, 269 (1994) ("criminal action"); United States v. Heynen, 376 F. Supp. 2d 1193, 1194 (D.N.M. 2005) (service of criminal p rocess); United States v. Nippon Paper Indust. Co., Ltd., 944 F. Supp. 55, 58 (D. ass. 1996) (same). The legislative history quoted by the Government affirms the view that subsection (t) relates to subject matter. (See Gov't Opp'n at 32 (quoting S. Rep. No. 433 at 11) ("Section 1956(0 is intended to clarify the jurisdiction over extraterritorial acts [and] the offense. .") (italic emphasis added).)
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United States v. Lloyds TSB Bank PLC, 639 F. Supp. 2d 314, 317 (S.D.N.Y. 2009) ("[s]ubsection 1956(b)(2) deals with obtaining personal jurisdiction over a foreign person in cases where subject matter jurisdiction is established by other provisions of the MLCA," such as subsection (f)). This is the only case even to mention paragraph (b)(2), and it did not construe it further, because its focus was on subject matter jurisdiction. Id. Paragraph (b)(2) isas -the Government says, a " -long=arm" provision (Gov't Opp'n at 33), albeit not exclusively a "civil" one. Personal and subject matter jurisdiction are separate concepts. Thus, subsection (f) provides jurisdiction over "conduct," including that by "non-U.S. citizens" when they commit an unlawful act occurring at least partially in the U.S. Paragraph (b)(2) establishes when a court may obtain jurisdiction over "foreign persons" for such a crime, specifically when the "conduct" directly violates subsection (a) Thus, the two subsections work together, and do not conflict. This Court is required to give each provision its full effect and read them in a manner that avoids any inconsistencies between them. See United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992) ("[A] statute must, if possible be construed in such a fashion that every word has some operative effect."). Ostensibly, if the foreign person were arrested in the U.S. and already before a court, personal jurisdiction could be thereby established. See, e.g., Bodmer, 342 F. Supp. 2d at 188 (personal criminal jurisdiction over foreigners can result from "arrest in the United States"). Under those circumstances, it is at least conceivable the conduct violating the MLCA could also include conspiracy under subsection (g), because it would be unnecessary to serve and obtain jurisdiction under (b)(2). However, as explained in the Siriwans' prior brief, (b)(2) allows a court to lawfully assert jurisdiction over a foreign person outside the U.S. only when he or she commits a direct MLCA violation (i.e., a subsection (a) violation). Charges for a derivative violation (i.e., conspiracy under subsection (g) or willfully causing others under 18 U.S.C. 2) do not convey such jurisdiction. (Def. Br. at 13-16.)
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Each serve independent purposes and do not conflict. Because each can be given effect, each therefore must be given effect. Nordic Village, 503 U.S. at 36.
B.
Caselaw and Proper Construction of a Penal Statute Support Defendants Paragraph (b)(2) Reading Whether or not there is some ambiguity in the statute, the rules of statutory
construction and relevant case law support -the-interpretation-thatthe jurisdictional limitations of paragraph (b)(2) apply to both criminal and civil actions.
1.
Bodmer and Stein Do Not Support the Government's Argument
The Government cites two cases in support of its argument that "[c]ourts have long recognized that 1956(f) provides for extraterritorial criminal jurisdiction against foreign persons that have violated 1956(a)(2)(A) and (h)." (Gov't Opp'n at 32 (citing Bodmer, 342 F. Supp. 2d 176 and United States v. Stein, 1994 WL 285020 (E.D. La. June 23, 1994)).) As a preliminary matter, Defendants do not dispute that subsection (f) conveys a type of extraterritorial jurisdiction, just as does paragraph (b)(2). For that reason, Stein, which concerned a defendant's direct violation of 1956(a)(2)(A), is inapposite. I7 1994 WL 285020, at *1. Bodmer actually assists Defendants' argument. First, the case does not discuss MLCA jurisdiction, although it does quote subsection (f). 342 F. Supp. 2d at 190. It did not discuss (b)(2) which, as in Stein, was not in effect during the time of the conduct in question, i.e., between 1997 and 1999. Id. at 179. Whether or not Bodmer, a Swiss citizen, could have argued paragraph (b)(2) had retroactive effect and thus did not apply to his subsection (g) conspiracy charge, as the Siriwans do here, is unclear. What is certain is he made no MLCA jurisdictional arguments. Mr. Bodmer did, however, challenge the FCPA charge, arguing the court lacked personal jurisdiction over him, and he prevailed. See id. at 182-88. At the time, the FCPA's personal jurisdictional predicate over foreign persons was tied
17 Stein also pre-dates the 2001 PATRIOT Act amendment adding paragraph (b)(2), and therefore says nothing about its scope. (Def. Br. at 22.)
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with its substantive provisions. The criminal provisions applied to lalny employee or agent of a domestic concern who is a United States citizen, national, or resident or is otherwise subject to the jurisdiction of the United States." 15 U.S.C. 78dd2(g)(2) (1997). At great length, the court discussed the concept of personal jurisdiction in criminal cases, principles that also apply in this case.
2.
The 1VILCA-'s Extraterritorial Reach -Must-be Construed-Strictly
There is no question that the 1VILCA provides for some extraterritorial jurisdiction over the conduct of non-U.S. citizens and foreign persons where some conduct occurs inside the United States. However, the rules of statutory construction require that "when a statute provides for some extraterritorial application, the presumption against extraterritoriality operates to limit that provision to its terms." Morrison v. Nat'l Australia Bank Ltd., 561 U.S. , 130 S.Ct. 2869, 2883 (2010) (citing Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 455-56 (2007)). Here, the Government advocates an overbroad interpretation of the MLCA's limited extraterritorial jurisdiction. In construing this statute, the limitation on extraterritoriality must be observed. Id.
3.
Lenity Requires an Interpretation Favorable to the Defendants
Finally, the rule of lenity "requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them." Santos, 553 US at 514 (citing cases). "[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." United States v. Universal C. I T Credit Corp., 344 U. S. 218, 221-222 (1952); see also Jones v. United States, 529 U.S. 848, 858 (2000) (quoting Universal). Here, the Government urges the Court to read words and intent into the statute which, if adopted, would subject the Siriwans to prosecution in a forum remote to them. Even should the Court find ambiguity, it should not apply this first ever interpretation against the Siriwans in this instance. Any ambiguity should be
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resolved in favor of the Siriwans by finding that paragraph (b)(2) does apply to criminal actions. "When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity." Bell v. United States, 349 U.S. 81, 83 (1955); see also United States v. Wiltberger, 5 Wheat. 76, 105, 5 L.Ed. 37 (1820) (Marshal, C.J.) (" [P]robability is not a guide which-a courtjn construing-a-penal statute, can safely take."). In conclusion, there is no jurisdiction over the Siriwans under the MLCA. As explained at great length above, they have not been charged with a violation of subsection (a). Because there is no jurisdiction over the Siriwans under the MLCA, there can be no extraterritorial jurisdiction under 18 U.S.C. 2(b) either. 428 F.3d at 252. All Counts must be dismissed. V. The Government Has Failed to Rebut the Principles of International Law That Support Dismissal of the Indictment Because the Government misapprehends the substantive legal argument, it misses the import of Defendant's prescriptive jurisdiction analysis and Section 9's relevance to the inquiry properly before this Court. A. Section 9 and Other Principles of International Law The Government argues Section 9 of Thailand's Penal Code (discussed at pages 16-17 of the Siriwans' opening brief) has no application to the legal issues before this Court, and that issues of concurrent jurisdiction can only be resolved at the political level. (See Gov't Opp. at 45 ( "It is up to Thailand. . . to make assertions of superior interests or sole jurisdiction." 18).) To the contrary, as a matter of law subject to interpretation by this Court, Section 9 is an expression of As evidence of ostensible acquiescence by Thai authorities in this prosecution, the Government points to the assistance Thailand has provided "in connection with the investigation and indictment of the defendants: (Id.) The fact that Thailand has provided "materials" under the Mutual Legal Assistance Treaty between the two nations indicates nothing about that nation's views of this prosecution because such assistance is required by the Treaty. See Art. I "Obligation to Assist," Sen. Treaty Doc. 100-18, KAV 1941 (1990).
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exclusive jurisdiction regarding extraterritorial crimes of Thailand's public officials relating to official malfeasance. Section 9's "legislative history" confirms this proposition. 19 Section 9 was adopted to address the rule of Thai Supreme Court Decision No. 1035/2464 (Dock. No. 65-1), discussed in Defendants' opening brief. (Def. Br. at 16-17); (Sukkree Decl., Ex. C at 7) (Minutes of Extraordinary Meeting No. 7/2495 (Nov. 6, 1952)). "The theory and-principle-behind-this section-is-that we desire to punish a Thai governmental official who commits a crime outside the Kingdom. Because by committing a crime, his action constitutes untrustworthy and causes damages to the country's reputation, integrity and dignity." (Id. (statement of Mr. Yood Sang-au-Thai).) "This section aims to adjudicate punishment of Thai governmental officials because we want to discipline them to act responsibly and perform in a good manner." (Id. at 8 (statement of M.L. Seni Pramod).) As such, Section 9 embodies a type of special jurisdiction over government officials that international law expert, Finn Seyersted, termed "organic jurisdiction."20 "The organic jurisdiction of a State implies that all its relations withand all relations between and withinits organs and officials as such are governed by the public law and by the executive and judicial organs of that State and not by the public or private law or the organs of any other State." Id. at 33-34.
///
For a discussion of the Thai legislative process and, in particular, the role of Ad-Hoc Committees panels of legal experts that consider legislation and advise the Thai legislature see -Exhibit D to Sukkree Declaration (Legal Statement of Dr. Pinai Nanakorn); (see also Sukkree Dee!. Ili 8-9 (Dr. Pines credentials).) 20 Finn Seyersted, Jurisdiction over Organs and Officials of States, The Holy See and Intergovernmental Organisations, -14 INT'L & COMP. L.Q. 31 (1965). (Declaration of Shaun M. Gehan ("Gehan Decl."), Ex. A.) Seyersted, legal director of the International Atomic Energy Commission at this time, wrote extensively on the subject of sovereign jurisdiction, during a time when the jurisdiction of the United Nations and other international bodies that proliferated before and after World War II was being established and delimited. See SEYERSTED, COMMON LAW OF INTERNATIONAL ORGANIZATIONS xxi (Martinus Nijhoff Pub. 2008) (Mr. Seyersted's background and the treatise's Foreword is provided for context on his work and its significance (Ex. G to Gehan Decl.). 25
19
Organic jurisdiction is distinct from the "privileges and immunities" diplomats and high government officials enjoy abroad. Id. at 34. Immunities, which form a procedural bar to judicial and administrative proceedings before the authorities of other states, do not affect the underlying substantive legal obligations. Organic jurisdiction, on the other hand, means exclusive legislative competence, completely exempting the issues involved from the legislation of other states. In other words, some matters are such that they can, by their very nature, only be regularal by the state to which the organ belongs.' Seyersted identified exercises of organic jurisdiction from a series of court decisions from around the world involving jurisdictional decisions regarding government officials and employees that must, of necessity, have had a basis other than either territorial or personal jurisdiction, or those resulting from the application of privileges and immunities. Seyersted (1965), at 35-39. "Courts ascertain customary international law 'by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law." Siderman de Blake v. Republic of Argentina, 965 F. 2d 699, 714-15 (9th Cir. 1992) (quoting United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L.Ed. 57 (1820) (Story, J.)). Organic jurisdiction is recognized in the context of the law governing employment of nationals by foreign consulates, 22 as well as in the context of Rain Liivoja, Service Jurisdiction Under International Law, 11 MELD. J. INT'L L. 309, 332 (2010) (discussing contemporary notions of organic jurisdiction in the context of foreign military deployments). (Gehan Decl., Ex. B.) An early case from the Permanent Court of International Arbitration in The Hague determined that German nationals who had joined the French Foreigra..,egion were subject to French jurisdiction for desertion and could not rely on German consular protection or German nationality jurisdiction to avoid arrest. Deserters of Casablanca Case (Fr. v. Ger.), Award of the Tribunal (Perm. Ct. Arb. May 22, 1909), available at http://www.pca-cpa.org/upload/files/DesertersofCasablanca EnglishAward%20edited.pdf (cited in Seyersted (1965) supra n.20). 22 Seyersted (1965), at 36; see also International Committee On Transnational Recognition and Enforcement Of Foreign Public Laws 63 INT'L L. ASS'N REP. CONF. 719, 738 (1988) ("National courts declare themselves incompetent ratione materiae in disputes relating to the internal administration of a foreign state or an intergovernmental organization. This incompetencewhich follows from public
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foreign military deployments, 23 and international organizations. 24 It continues to be a vital and recognized principle of international law. Section 9 embodies this concept; to wit, that Thailand exercises a recognized form of exclusive jurisdiction over the acts of its public officials acting as an agent of the organs of state abroad. 25 As Mr. Yood Sang-au-Thai noted at the inception of the Ad-Hoc Committee's discussion of-Section 9, "[N-ecau-se there is-a specifrc provision gives-the Court has-supersede jurisdiction over its officials. And this is implicitly underlined in the international law."26 (Sukkree Decl., Ex. C at 7.) As Professor Pinai explains in statement, Dr. Yood ("Yud") was both a renowned legal scholar and SecretaryGeneral of the Council of State at this time. (Ex. D Sukkree Decl. at 2.) Dr. Yood's use of the word "supersede" denotes exclusive, not concurrent or shared, Thai jurisdiction. These background principles, overlooked by the Government, are essential to understanding why prescriptive jurisdiction does not here obtain. international lawcomprizes all matters falling under the exclusive organic jurisdiction of the foreign state or organization, .e., relations within and between i organs and officials as such, including employment and service conditions of state and international officials.") (citing Seyersted (1965)). (Gehan Decl., Ex. C.) 23 Liivoja, at 332; see also Aurel Sari, The EU Status of Forces Agreement: Continuity and Change in the Law of Visiting Forces, 46 Mil. L. & L. War Rev. 1, 143 (200'7) (concept of organic jurisdiction embodied in NATO Status of Forces Agreement, citing Seyersted). (Gehan Decl., Ex. D.) 24 Bank for International Settlements Final Award of 19 September 2003 23 REP. INT'L ARB. AWARDS 153, 209-10 (2004) (opinion in Reineccius v. Bank for Intl Settlements, characterizing the Bank's arguments regarding its "organic jurisdiction" and citing . Seyersted); see also id. at 210 n.44 (citing cases expressing the concept of organic jurisdiction). The court ultimately. found that "[t]he Bank is correct in asserting that 'issues implicating its organic principles or internal governance' are governed by international - law.' Id. at 217. (Gehan Decl., Ex. E.) 25 While the Government disclaims any su_ggestion that Ms. Siriwan is charged as or is in fact a Thai governmental official (Gov't Opp. at 23 n.22) the fact is that the Indictment specifically alleges that she is a former employee of the Thai ' Privilege Card Program. (Indictment 6.) Regardless how the Government now opts to view her role as to its theory of criminal liability, the fact remains that, just as with the Governor, Ms. Siriwan is a former Thai public official. 26 This assertion of jurisdiction is also consistent with Thailand's status as a civil law country. "[qountries like Thailand also consider the principle of personal jurisdiction as a crucial factor in exercising jurisdiction." Ko Swan Sik et al., ASIAN Y.13. INTI L. VOL. 5 271 (Kluwer Law 1995) (Gehan Decl., Ex. F).
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B. The Government has Not Rebutted Defendants' Analysis of Relevant Principles of International Law In terms of the relevant principles of statutory construction, with particular respect to the MLCA, "when a statute provides for some extraterritorial application, the presumption against extraterritoriality operates to limit that provision to its terms " Morrison, 130 S. Ct:at2883. This canon is aided-by a-hostofothers relevant to determining a statute's extraterritorial reach in a specific context. The "long recognized" Charming Betsy principle is "that 'an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains." United States v. Corey, 232 F.3d 1166, 1178-79 (9th Cir. 2000) (quoting McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963)) (internal quotes omitted); Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804). The Restatement (Third) of Foreign Relations is an authoritative source for defining the "law of nations" as recognized by the United States. (See Def. Br. at 18-19 & n.9 (citing cases).) "Under the Restatement, a nation having some 'basis' for jurisdiction to prescribe law should nonetheless refrain from exercising that jurisdiction 'with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable." Hartford Fire Ins. Co. v. California 509 U.S. 764, 818 (1993) (Scalia, J, dissenting) (quoting RESTATEMENT (THIRD) 403(1)). Even where a basis for prescriptive jurisdiction (territorial, protective, nationality, or effects) lies, "an exercise of jurisdiction on one of these bases still violates international principles if it is 'unreasonable." United States v. Vasquez-Velasco, 15 F.3d 833, 840 (9th Cir. 1994) (footnote omitted); see also Hartford Fire Ins., 509 U.S. at 818. The issue is, therefore, whether the MLCA can and should be construed in such a way as to encompass the crimes alleged in the Indictment against these

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Defendants. 27 The Siriwans have respectfully argued that such a reading would be inconsistent with the law of nations, based on all that is foregoing and a reasoned application of the relevant Restatement factors. The fact that international promotion money laundering is charged must be viewed in light of the fact that this case involves Thai public officials, and the derivative SUAs are-all based on crimes associated with that status-Even-as-to-Ms-
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Siriwan, liability is predicated on application of the FCPA and Thai bribery laws, each here necessitating the involvement of a Thai public official involved in official acts. Consistently, the transactions alleged relate to corrupt payments in connection with Thai public contracts for services performed in Thailand. Defendants have shown, under the Restatement 403 factors, that reading the MLCA to confer prescriptive jurisdiction based on these facts and allegations is not "reasonable," and thus contrary to international law.
1.
The MLCA Has Limited Extraterritorial Application
The Government correctly outlines relevant provisions of law with respect to presumptions against extraterritoriality, but misses their import because it looks solely to 1956(f) as a source of foreign jurisdiction. (See Gov't Opp. at 36-38.) The Government claims (again only with respect to 1956(f)), that the Charming Betsy and Restatement canons are "irrelevant" because "there is no ambiguity with Congress' intent." (Gov't Opp. at 37 (citing United States v. Yousef, 327 F.3d 56, 92 (2d Cir. 2003)).) As explained in detail above, however, subsection (f) confers only subject matter jurisdiction. The Government ignores paragraph (b)(2) dealing
The Government appears to argue that prescriptive jurisdiction does not go to the Court's power to adjudicate this action. (See Gov't Opp. at 38-39 n.30.) However, " aldjuticative and enforcement jurisdiction are dependent on the existence o prescriptive jurisdictionif the legislative scope is not broad enough to cover the proscribed conduct, obviously, no adjudication or enforcement is appropriate." Christopher L. Blakesley & David E. Stigall, The Myopia ofU.S. v. Martinelli: Extraterritorial Jurisdiction in the 211 Century, 39 Geo.AVash. Intl L. Rev. 1, 12 (2007) (citing Restatement (Third) 401 cmt. a). 29
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with "jurisdiction over foreign persons." Defendants have demonstrated the "plain text" of 1956(b)(2) grants this Court "jurisdiction over foreign persons" to adjudicate only if they are charged under subsection (a), which is not the case here. Despite the plain meaning of the statute, the Government tries to create the very ambiguity it says the law lacks, to wit, by engrafting the non-existent word "civil" onto-paragraph-(b)(2)Butthat-coristructruns -into-relevant-calions oflaw. See, e.g., Morrison, 130 S. Ct. at 2883. Further, in this context, the principle that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains," is likewise relevant. Corey, 232 F.3d at
1178-79. In other words, the Court should not go searching for constructs, even plausible ones, that seek to extend the extraterritorial application of the law beyond its apparent terms or inconsistently with established international law principles.
2.
Defendants Have Shown that an Exercise of Prescriptive Jurisdiction in This Case is Unreasonable
The Government correctly notes that, in this Circuit, evaluation of the application of customary international law looks first for a basis for jurisdiction to prescribe under Restatement 402, and if such exists, then considers 403 factors to determine if such jurisdiction's application would be reasonable under the facts. (Gov't Opp. at 38-39 (citing Vasquez-Velasco, 15 F.3d at 840)); see also Hartford Fire Ins., 509 U.S. at 818 (Scalia, J, dissenting) (quoting RESTATEMENT (THIRD) 403(1)). The Government's characterization of the issue is, however, flawed. Sub-paragraph 1956(a)(2)(A) confers "territorial" jurisdiction by requiring a "monetary transfer" that emanates or terminates in the U.S. 28 The fact that the U.S. Questions do arise whether the other two bases asserted for prescriptive jurisdiction apply. (Gov't Opp. at 40 n.31.) The first, based on "effects,' is premised on the "national interest in maintaining the integrity" of U.S. banks by preventing their use for money laundering offenses to promote foreign bribery crimes. (Id.) In the abstract, perhaps, but the "effect" is lessened here where Congress does not assert FCPik jurisdiction over foreign officials, and was concerned about U.S. banks being used to launder foreign corruption proceeds, generally regarding such tainted money coming into the country. (Def.. Br. at 2230
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may have a basis for jurisdiction to prescribe only brings it within the terms of 402. Having an arguable basis for prescriptive jurisdiction, however, is just a prelude to the second part of the inquiry, application of the "reasonableness" factors. RESTATEMENT (THIRD) 403(1); Hartford Fire Ins., 509 U.S. at 821. Thus, the Government's assertion that "Defendant's arguments relate less to the basis of jurisdiction under-customary law-and-more to-a challenge of the
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'reasonableness' of the government's prosecution" gets close to the matter. (Gov't Opp. at 40.) The Government appears to believe that the 403 inquiry is unwarranted because "Congress has clearly expressed its intention that the statute apply to conduct committed outside the United States." (Id.) It is, however, the reasonableness of that jurisdiction's exercise in context that is at issue. First of all, standing on its own, a finding that an exercise of prescriptive jurisdiction in a particular case is "unreasonable" itself demonstrates inconsistency with international law. Vasquez-Velasco, 15 F.3d at 840; Hartford Fire Ins., 509 U.S. at 819. Second, the Government misses the fact that questions of the extent of extraterritoriality can arise from the limitations on the scope of the law and/or from the application of the law to the facts of the case. RESTATEMENT (THIRD) 403 cmt.a ("[C]ourts have usually interpreted general language in a statute as not intended to exercise or authorize the exercise of jurisdiction in circumstances where application of the statute would be unreasonable."). It was toward these questions Defendants directed their analysis. (Def. Br. at 21-24.) Naturally, the Government focuses its analysis of Restatement 403(2)(a) analysis (link to territory) on the U.S. acts, going so far as improperly arguing evidence in the Greens' case, discussing facts nowhere to be found in the 23.) Nor does the Government explain why this interest is not protected by punishing "domestic concerns," such as the Greens. The "protective" basis of jurisdiction does not apply at all. That is reserved for "a limited class of offenses by persons who are not its nationalsoffenses directed at the security of the state or other offenses threatening the integrity of governmental functions. ' RESTATEMENT (THIRD) 402 cmt.f, not bribery of a foreign official. 31
Indictment. (See, e.g., Gov't Opp. at 42 n.32.) But as explained in great detail above, this 1956(a)(2)(A) case involves a series of transactions from the U.S. to places abroad alleged to have been committed with intent to promote foreign bribery. Supra Part II.C. As such, the only relevant U.S. actions as to (a)(2)(A) are the transfers emanating from the U.S.; in contrast, the alleged FCPA and Thai law violations are each directed, eitherlargely-or-wh-olly, at-effects-and harms-to Thailand. Therefore, Defendants appropriately argued the 'center of gravity' of events giving rise to the Siriwans' alleged culpability is decidedly in Thailand." (Def. Br. at 21 (quoting RESTATEMENT (THIRD) at 237).) The Government emphasizes the Greens' conduct, as well as certain nonalleged activities occurring at the "Los Angeles office of the Tourism Ministry of Thailand," (Gov't Opp. at 42), but they are ancillary to the primary matter, the alleged bribery of a Thai official regarding a series of Thai public contracts, that purchased services ultimately delivered in Thailand. This case involves, among other things, promoting a major film festival in Bangkok over the course of years, not manufacturing a widget in the U.S. and shipping it to Thailand. The effects in Thailand easily preponderate. (Def. Br. at 21.) As to factor (b), "connection, such as nationality, residence or economic activity, between the regulating state" and regulated persons, all the Government says is the Siriwans' foreign residence and citizenship "by itself' does not make the "prosecution unreasonable." (Gov't Br. at 42.) True, the 403 reasonableness inquiry is a multifactor test, but "[n]ot all considerations have the same importance in all situations" and they can be weighted "depend[ing] on the circumstances." RESTATEMENT (THIRD) 403 cmt.b. In this case, where case involves alleged acts of official malfeasance by Thai Government officials, derivatively charged, the nationality and residence factors do and should weigh heavily. The "character of the activity to be regulated, the importance of regulation to the regulating state, [and] the extent to which other states in regulate such
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activities," are the next considerations. Id. 403(2)(c). Their assessment depends on how the activity and scope of regulation are defined. Defendants demonstrated both MLCA's jurisdictional provisions, subsections (b)(2) and (f), are limited. The PATRIOT Act added (b)(2) when it expanded the MLCA's foreign law SUAs, including foreign bribery. The contemporaneous enactment connotes an intent to cabin the MLCA's reac Def. Br. at-22- 23.) This Court should weigh the equivocated assertions of MLCA jurisdiction against Thailand's broad "supersed[ingr jurisdictional assertion over its public officials' acts, particularly those allegations that directly affect Thailand's public fisc. The Government's rejoinder is that Defendants 'have provided no evidence that Thailand has asserted its jurisdiction over this matter that forecloses prosecution by the United States," (Gov't Opp. at 43), implying that this question can only be resolved by state-to-state interactions. This Court should not abdicate its obligation to determine its jurisdiction. Reading and interpreting Thai law, and the additional case law, legislative history, and legal materials provided, to determine Section 9's meaning is within the Court's competency. Siderman de Blake, 965 F. 2d at 714-15. The concept of organic jurisdiction that Section 9 embodies is a recognized principle of international law. Supra Part V.A. This Court is capable of assessing international law and applying the Restatement test. In terms of factor (h) of the Restatement test relating to the "likelihood of conflict with regulations by the another state," 403(2)(h), the Government asserts there exists no conflict, and that what exists is a simple case of concurrent jurisdiction. (Gov't Opp. at 44.) An invocation of "concurrent" jurisdiction does not end the matter. The fact that Thailand has exercised its jurisdiction over the Governor and Ms. Siriwan regarding the substantive acts comprising the underlying SUA may not be "conclusive that it is unreasonable for the" United States to claim its MLCA jurisdiction, but it is relevant to the Court's inquiry into the both the extent of Thailand's "interest in regulating the activity" and the "likelihood of
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conflict with regulation by" the United States. RESTATEMENT (THIRD) 403 cmt. 2; 403(2)(g),(h). As Justice Scalia explained in Hartford Fire Insurance, ample Supreme Court precedent shows that "conflict" need not arise only from one country requiring what another prohibits, but also when an adjudication entails a "sharp and unnecessary conflict with the legitimate interests of other countries." 509 U.Sat-820 (citing-Lauritzen-v. Lamen, 345 .171, 582 (1953)). The Ninth Circuit stated, as the Government notes, that the principle of "[c]oncurrent jurisdiction is well-recognized in international law" such that its exercise "raises no eyebrows among international lawyers." Corey, 232 F.3d at 179-80; (see also Gov't Opp; at 46). Corey involved a case against an American citizen, a key factor in the decision. See id. at 1178 ("But acknowledging the claims of the foreign government does not determine whether the United States exercises concurrent jurisdiction over that territoryparticularly with regard to the actions of its own citizens.") But Corey also observed, that if the government were to apply the same extraterritorial jurisdictional provision to non-U.S. citizens, "courts could avoid the [resulting] conflict by construing the subsection with reference to the principle that 'statutes should not be interpreted to regulate foreign persons or conduct if that regulation would conflict with principles of international law." Id. at 1179 n.9 (quoting Hartford Fire Ins., 509 U.S. at 815). It is this analysis the Siriwans ask this Court to undertake. The Government next asserts Section 9 does not apply because "Thailand is pursuing allegations completely different than the United States." (Gov't Opp. at 44). The argument addresses neither the issue of concurrent jurisdiction nor Section 9's application. Section 9 applies to extraterritorial acts of Thai officials, rather than specific charges. It is highly unlikely Thailand and the charging country will ever charge exactly the same crime. Other countries do not have jurisdiction to enforce the Thai Penal Code. In fact, charging violations of Thai law as money laundering SUAs is as close to congruity as the charging country can realistically
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get. As to the United States, a prosecution involving or predicated on alleged corrupt acts of Thai officials implicates crimes covered by Section 9. Extraterritorially, Section 9 operates as an assertion of exclusive organic jurisdiction over the crimes by its public officials conducting their official duties. For purposes of that jurisdiction, all that matters is that acts fall within the ambit of Section 9Ifso, an-foreign nation's assertion ofjurisdiction, as the -TSattempts, conflicts with Thailand's expressed sovereignty. Proper application of the 403 factors shows that under the facts of this case, the Siriwans' prosecution for violating the MLCA is unreasonable. Accordingly, prescriptive jurisdiction does not lie. VI. Conclusion It is no small matter to charge a foreign official with official misconduct. Congress recognized as much in how it repeatedly cabined the FCPA. Especially when the recognized protections of international and domestic criminal law are factored in, the many premises, constructs, and presumptions that the Government would apply to seek the Siriwans' derivative criminal liability must collapse of their own weight. For reasons stated in the Siriwans' Motion to Dismiss and explained further herein, the Defendants respectfully request Indictment be dismissed. DATED: October 4, 2011 Respectfully submitted, KELLEY DRYE & WARREN LLP By /s David E. Fink David E. Fink Attorneys Appearing Specially for Defendants Juthamas Siriwan and Jittisopa Siriwan
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Case 2:09-cr-00081-GW Document 74

Filed 10/04/11 Page 1 of 45 Page ID #:831

UNITED STATES OF AMERICA, The Honorable George H. Wu, Crtrm. 10

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Case 2:09-cr-00081-GW Document 74

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JUTHAMAS SIRIWAN and JITTISOPA SIRI WAN, Defendants.

[Declarations of Shaun M Gehan and Dornnapha Suaree filed concurrently herewith]

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2 26, 33 4 6 13, 21, 22 9 28, 30, 34 2 6 4 20 4 4 2 8 12 5, 9 13

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Filed 10/04/11 Page 8 of 45 Page ID #:838

20 8, 13 5, 8 20 21 2 5, 8 19 2 12, 13, 23 4, 5, 8, 11 26 22 4, 9, 10 23 12 28,30,31 24

DEFENDANTS' BRIEF IN REPLY

Case 2:09-cr-00081-GW Document 74

Filed 10/04/11 Page 9 of 45 Page ID #:839

23 18 3 passim 16, 17 17 16, 17, 19 15 14 20 15, 21, 24 19 19 20

DEFENDANTS' BRIEF IN REPLY

Case 2:09-cr-00081-GW Document 74

Filed 10/04/11 Page 10 of 45 Page ID #:840

Restatement (Third) 401 cmt. a.

RESTATEMENT (THIRD) 403(2)(c)

RESTATEMENT (THIRD) 403 cmt.a

RESTATEMENT (THIRD) 403 cmt.b

RESTATEMENT (THIRD) 403(1)

RESTATEMENT (THIRD) at 237

RESTATEMENT (THIRD) 403 cmt. 2

RESTATEMENT (THIRD) 403(2)(g),(h)

Sen. Treaty Doc. 100-18, KAV 1941 (1990)

Case 2:09-cr-00081-GW Document 74

Filed 10/04/11 Page 11 of 45 Page ID #:841

I. The Government Inappropriately Argues Facts Outside the Indictment

Case 2:09-cr-00081-GW Document 74

Filed 10/04/11 Page 12 of 45 Page ID #:842

Sunt 400 3050K STREET, NW WASHINGTON, DC 20007

Case 2:09-cr-00081-GW Document 74

Filed 10/04/11 Page 13 of 45 Page ID #:843

II. International Promotion Money Laundering

DEFENDANTS' BRIEF IN REPLY

Case 2:09-cr-00081-GW Document 74

Filed 10/04/11 Page 14 of 45 Page ID #:844

3050 K STREET, NW WASHINGTON, DC 20007

Case 2:09-cr-00081-GW Document 74

Filed 10/04/11 Page 15 of 45 Page ID #:845

DEFENDANTS' BRIEF IN REPLY

Case 2:09-cr-00081-GW Document 74

Filed 10/04/11 Page 16 of 45 Page ID #:846