United States v. Aguilar

SHORT-FORM MEMORANDUM & ORDER

ERIC N. VITALIANO UNITED STATES DISTRICT JUDGE

Jury selection in this case is scheduled to start on January 2, 2024, and, in that connection, the government has filed a motion in limine. Mot., Dkt. 177. Having considered the submissions of the parlies, Dkts. 177, 179, 181, the motion is resolved in the manner and for the reasons as set forth below.

Motion

Ruling

(A) The government seeks to preclude Aguilar from arguing that he should be acquitted because the case should have been brought in a different district. Mot. at 18-20.[1] Specifically, the government seeks to preclude argument that “[Aguilar] should have been prosecuted in a different venue or that it is unfair to him to be prosecuted in this Court.” Id.

(A) With its fixed focus on what he terms the government's attempt to deprive him of his constitutional right to assert at trial that the government has not met its burden on venue as to Count Five, see Def.'s Opp., Dkt. 179, at 9-10, Aguilar's argument in opposition to this in limine request of the government is somewhat the straw dog. Indeed, the Com! has already ruled, and the government does not dispute, that Aguilar is free to

at 20; see also Gov't Reply, Dkt. 181, at 7.

renew at trial his contention that the government cannot meet its burden to show, by a preponderance of the evidence, that venue is proper. See Order, Dkt. 154, at 4. Indeed, such inquiry is within the province of the jury. See United States v. Griffith, No. 20-CR-15 (PKC), 2020 WL 4369650, at *3 (S.D.N.Y. July 29, 2020). Buoyed by the fact that its gravamen has essentially been met with defendant's silence, this in limine request seeking to preclude Aguilar from making the broader argument that none of the counts should have been charged in the Eastern District of New York, see Mot. at 18, is granted.

(B) The government seeks preclusion of evidence or argument that paying bribes was common practice in Ecuador, Mexico, or the petroleum industry generally. Mot. at 20-24. Specifically, the government seeks to preclude as irrelevant evidence and argument that other Vitol employees and competitors of Vitol paid bribes to foreign officials as an “everybody-was-doing-it defense.” Id.

(B) As conditioned by its motion papers, see Mot. at 21 n.3, the government's request is granted as unopposed.

at 20-21. The government notes,however, that it expects testimony from cooperating witnesses as to their roles in other bribery schemes involving Vitol's competitors, and does not seek to preclude cross-examination of such witnesses on that topic. Id. at 21 n.3.

(C) The government asks the Court to preclude evidence or argument that defendant was extorted into paying bribes, because there is no evidence that extortion[2] occurred here. Mot. at 24-25. The government argues that since there is no evidence that Aguilar or Vitol was threatened with physical harm if they did not participate in the alleged bribery, any extortion augment or evidence would be irrelevant. Id. at 24-25 (citing United States v. Kozeny, 582 F.Supp.2d 535, 540 n.31 (S.D.N.Y. 2008)).

(C) In response, Aguilar agrees with the government that the court should follow the reasoning of Kozeny. His interpretation of that case, however, leads to a different result. Concisely, Aguilar contends that Kozeny held that, under the FCPA, a defense of lack of corrupt intent due to extortion is distinct from the affirmative defense of duress, the latter of which he concededly does not intend to raise. Def.'s Opp. at 12. A careful review of the Kozeny opinion confirms that the only way to disprove corrupt intent due to extortion is by showing “true extortion.” Kozeny, 582 F.Supp.2d at 540. The Kozeny court explained that a defense of true

extortion does not apply when “payment [is] demanded on the part of a government official as a price for gaining entry into a market or to obtain a contract,” but does apply where payment is made “to keep an oil rig from being dynamited.” Id. Thus, the court concluded that “if [the defendant] provides an evidentiary foundation for the claim that she was a victim of ‘true extortion,'” the court would “instruct the jury on what constitutes a situation of ‘true extortion' such that [the defendant] would not be found to have possessed the ‘corrupt' intent required for a violation under the FCPA” Id. Therefore, consistent with Kozeny, and as the FCPA's legislative history confirms, a defendant may argue that he lacked a corrupt intent because he was the victim of true extortion only where he is able to lay the necessary evidentiary foundation for such a defense. Id.; S. Rep. No. 95114, at 10-11 (1977), reprinted in 1977 U.S.C.C.A.N. 4098, 4108. To that end, Aguilar will be required to make an offer of proof as to how he can satisfy

those conditions and, if satisfactory to the Court, he will be permitted to introduce such evidence of true extortion.[3] Kozeny, 582 F.Supp.2d at 540.

(D) As narrowed by its reply papers, in this request the government seeks to preclude Aguilar “from arguing or suggesting to the jury that his failure to obtain an improper advantage (or any other particular result) is a defense to liability under the FCPA.” Gov't Reply at 11. The government argues that “what matters under the FCPA” is the defendant's intent, and not whether the “bribe payment did not have its intended result,” i.e., to secure an improper business advantage. Mot. at 26. As a result, the government seeks to bar as irrelevant and unduly prejudicial any argument that foreign officials did not

(D) Aguilar does not dispute that actually obtaining an improper advantage is not an element of a FCPA offense. Def's Opp. at 14; see also Kozeny, 582 F.Supp.2d at 541 (“[T]he proper focus is on [the defendant's] intent and . . . the [g]overnment is not required to show that ‘the official accepted the bribe,' that the ‘official [ ] had the power or authority to perform the act [ ] sought' or that the ‘defendant intended to influence an official act which was lawful.'”). He does, however, oppose the government's request to the extent it seeks to bar him from introducing evidence that he did not secure an improper advantage as such evidence is probative circumstantial evidence of the absence of corrupt intent. Id. at 15-16. Stated differently, on the absence of proof by the government that he

provide Aguilar or Vitol with a business advantage, or that any “assistance or information that they provided was minor or insignificant.” Id. at 26-27.

obtained an improper benefit, such evidence is probative, circumstantially, of whether any alleged payments were made to foreign officials “‘for purposes of obtaining such a benefit.” Id. at 15. At any rate, there appears to be a meeting of the minds. In its reply, the government does not contest that Aguilar may put on circumstantial evidence of his intent, “provided he does not imply or argue to the jury that actually obtaining an improper advantage is a necessary element of the offense.” Gov't Reply at 11. On that basis, this request is granted.

(E) At its essence, in this request the government seeks to preclude defendant from relitigating his motion to suppress statements made to FBI agents at George Bush Intercontinental Airport (“IAH”) that were subject to a prior motion to suppress and found by the Court to have been made voluntarily in a non-custodial setting. Mot. at 27-29; see also Order, Dkt. 106, at 9. The admissibility of such statements, the government contends, is a

(E) Declaring that he had no intent to do so anyway, Aguilar effectively concedes that he is barred by 18 U.S.C. § 3501 from relitigating the Court's earlier finding that the statements made in a non-custodial setting at IAH were voluntary. Def.'s Opp. at 17. The government correctly points out, see Gov't Reply at 12-13, that “evidence concerning the voluntariness of a statement may only be admitted under 18 U.S.C. § 3501(a) where the statement was made ‘during interrogation following arrest or detention.'” United States v.

matter of law reserved to the Court under Rule 104[4] and are inappropriate for the jury's consideration. Mot. at 28. To that end, the government seeks to preclude Aguilar from arguing or suggesting that the government obtained those statements through any illegal, improper, or unconstitutional means. The government also argues that evidence of any claimed impropriety by government agents in seeking the statements is irrelevant at trial and is barred by Rule 401. Id. at 29.

Ramsey, No. 21-CR-495 (ARR), 2023 WL 2523193, at *8 (E.D.N.Y. Mar. 15, 2023). To the extent that this in limine request seeks to bar that argument or inquiry, it is granted. This includes argument about or inquiry into what Aguilar deems to be “coercive circumstances surrounding his encounter with federal agents.” Def.'s Opp. at 18; United States v. Morel, 751 F.Supp.2d 423, 429 (E.D.N.Y. 2010). Aguilar does, however, seek to trim what he believes is the excess reach of the government's request. He argues that, not withstanding any inability to contest the voluntariness of his statements, he is free to attack and impeach the trustworthiness of the testimony of the agents who secured Aguilar's statements at the IAH interview. And he is. While Aguilar may not contest the voluntariness of his confession at trial, he is not precluded from offering evidence concerning the credibility of the statements made at IAH. See Ramsey, 2023 WL 2523193, at *8 (“Although the

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