Parts I & II of this suitcase scandal trial update were supposed to focus on the arguments behind the "Motion to Dismiss" the charges filed by Franklin Duran on June 20. However, the first paragraph of Part I linked to a Bloomberg article that refers to a different legal document - Duran's June 24 Response to the Department of Justice (DOJ)'s absurd and hypocritical "Motion to Preclude Evidence and Argument Regarding the Foreign Policy of the United States Towards Venezuela." The misleading Bloomberg piece suggests that there is direct evidence Chavez personally sent the defendants to Miami to pressure "the Fatman" or "el Gordo," Guido Antonini Wilson, to cover-up some money-laundering. But the revelation made on pg. 4 of the defense's Response and referred to by Bloomberg was only that one of the defendants, the multi-millionaire Carlos Kauffman, told the FBI (as part of plea deal that reduces his sentence) that others told him that Chavez was "involved." That's called hearsay, and by itself, Kauffman's statements won't prove a thing in court.
A far more impressive revelation from that motion is that Duran is going to tell it like it is and argue "what appears quite obvious to everyone else": that the prosecution is POLITICALLY MOTIVATED. That starts on page 1, and on pgs. 2-3 the defense states that the DOJ intends to use evidence "having no real purpose but to embarrass the government of Hugo Chavez" at trial.
More on the weird "Foreign Policy" Motion and the defense's rational Response to it later. First, let's finish exploring the arguments found in the even more legally sound and kick-ass Motion to dismiss filed by Duran. There's only a few more, and trust me, they're good and easy to understand.
In Part I the importance of legislative intent/history and the prior 18 U.S.C. § 951 cases were examined in light of how strong the defense's motion to dismiss and void for vagueness arguments are. But legislative intent and prior caselaw are only two aspects of the legal analysis a judge should conduct when deciding whether a law is unconstitutionally vague or not. Lucky for Duran, other aspects of his vagueness argument against § 951 may be even stronger, legally speaking.
Successfully challenging a law because it is too vague depends on whether or not someone of "ordinary intelligence" could read the law and then understand what type of behavior it bans. The "ordinary intelligence" standard is well-established by the Supreme Court. But § 951 does not specify what type of behavior a person cannot do at "the direction or control of a foreign government or official." So if your friend who works at the Irish Embassy asks you to pick up her dry-cleaning and you do it, could you be prosecuted under § 951? Nothing in the statute says you would not be. And former State Department officials agree. Ironically, the defense is attacking § 951 with the State Department and DOJ's own legal memos and letters on § 951. Duran's motion included as exhibits two documents written in 1976 by government legal experts that are respectively addressed 1) to a top State Department official and 2) to the then head of the DOJ, former Attorney General Edward Levi.
The memo written by the State Department's former counselor on international law gives the hypothetical example, among others, of how a professor could be prosecuted under section 951 if they are asked by the "Ruritanian" Ambassador to write a research paper on water law policy and then they proceeded to write it before registering with the DOJ as an agent of Ruritania. Sounds crazy right? The author concludes his 12-page constitutional analysis of § 951 by stating, "let us be done with [the statute]." The letter from a State Dep. legal advisor to the then Attorney General also doubts § 951's constitutionality and usefulness, stating that "18 U.S.C. 951 does not contain a definition of the activity which requires registration, its scope is unclear, and unless it 'has some application which is not apparent, it is recommended that it be repealed.'" But why is State even involved in legal opinions since that would obviously open the door to politicization? Oh, b/c they're input is actually part of the statute.
As referred to in Part I and the defense motion, there is one other 951 case, US vs. Byrne, in which the defendants have won on the same void for vagueness arguments that Duran is now using. And that case is also the only other one besides Duran's that I know of that doesn't fit a "typical" espionage fact pattern. It's uncertain how much importance the judge will place on the above memos, but the lawyers for Byrne also used both letters as exhibits in its successful defense from the statute.
Further complicating the DOJ's chances of prosecuting Duran is the most recent decision regarding the Cuban 5. In that case, the 11th Circuit Court ruled that § 951 is a general intent law as supposed to a specific intent law, during the last Cuban 5 appeal. This means that a person does not need to know that they were supposed to have registered as a foreign agent in order to be prosecuted under this statute. That decision may actually be great for Duran. When a statue is constitutionally challenged because of its "vagueness," a judge may try to interpret the law as requiring the specific intent of "knowing" you were breaking the law in order to be guilty. This is done in order to reduce reasonable confusion over the law, and allow leeway for the judge to declare the law constitutional, which is usually the preference of the justice system.
For § 951 such reasoning would go a little like - yes the crime is vague, but you knew you had to register as a foreign agent, you deliberately failed to register, so you're still screwed. Sometimes, the judge must do some incredible legal acrobatics in order to reach such a conclusion and rule that a law is still constitutional. However, this option is now not there for Duran's judge, because the 11th Circuit Court controls what decisions may or may not be made in Duran's court, the Florida Southern District Court. The District Court must find another way to save this severely flawed statute. The 11th would also be the Court of appeal in Duran's case (a further appeal might take it to the U.S. Supreme Court).
Judge Joan A. Lenard is the one who must decide if she agrees with the defense's arguments and throw out the charges. She is no stranger to politically-charged cases, also presiding over the prosecutions of the Cuban 5 and the second mistrial of the Liberty City 7, an obvious instance of government over-reaching and political pressure not being enough to secure convictions. However, it is extremely unlikely that she will make such a decision before a trial is begun. She could also rule § 951 unconstitutionally vague at a later point in the trial. But since there will probably be a trial, it is uncertain how the jury will take the above legal arguments into account. Juries supposedly only decide on issues of fact, the judge decides on issues of law and constitutionality; however, issues of law and fact are not always easily separated, and it would seem this is just the type of case where opinions will differ.
But opinions should not differ on a few things: The prosecution appears to have bitten off more than it can chew. Nevertheless, the political and media jockeying in this case may unfortunately end up being more important than the legal arguments.
P.S. - A google search of the name of the author of the memo with the hypothetical § 951 examples, Gordon Baldwin, revealed that the University of Wisconsin law professor passed away less than two years ago. A colleague of his had this to say about him shortly after his death:
He was among what seems to be a vanishing breed of lawyers - true professionals whose loyalty to the principles of the profession ran extremely deep.I hope Prosecutor Thomas Mulvihill will take a an honest look at his memo on § 951.
