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United States v. Esquenazi

United States Court of Appeals for the Eleventh Circuit

May 16, 2014, Decided

No. 11-15331

Opinion

 [*917]  MARTIN, Circuit Judge:

Joel Esquenazi and Carlos Rodriguez appeal their convictions and sentences imposed after a jury convicted them of conspiracy, violating the Foreign Corrupt Practices Act, and money-laundering. After careful review, and with the benefit of oral argument, we affirm.

In December 2009, a grand jury indicted Messrs. Esquenazi and Rodriguez on 21 counts. Two of these were conspiracy charges that spanned November 2001 through March 2005: conspiracy to violate the Foreign Corrupt Practices Act (FCPA) and commit wire fraud, all in violation of 18 U.S.C. § 371 (Count 1); and conspiracy to launder money, in violation of 18 U.S.C. § 1956 (Count 9). Counts 2 through 8 charged substantive violations of the FCPA, 15 U.S.C. § 78dd-2. And Counts 10 through 21 charged acts of concealment money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i).

A. Trial2

Messrs. Esquenazi and Rodriguez co-owned Terra Telecommunications Corp.  [**3] (Terra), a Florida company that purchased phone time from foreign vendors and resold the minutes to customers in the United States. Mr. Esquenazi, Terra's majority owner, served as President and Chief Executive Officer. Mr. Rodriguez, the company's minority owner, served as Executive Vice President of Operations. James Dickey served as Terra's general counsel and Antonio Perez as the company's comptroller.

One of Terra's main vendors was Telecommunications D'Haiti, S.A.M. (Teleco). Because the relationship of Teleco to the Haitian government was, and remains, at issue in this case, the government presented evidence of Teleco's ties to Haiti. Former Teleco Director of International Relations Robert Antoine testified that Teleco was owned by Haiti. An insurance broker, John Marsha, testified that, when Messrs. Rodriguez and Esquenazi were involved in previous contract negotiations with Teleco, they sought political-risk insurance, a type of coverage that applies only when a foreign government is party to an agreement. In emails with Mr. Marsha copied to Messrs. Esquenazi and Rodríguez, Mr. Dickey called Teleco an "instrumentality" of the Haitian government.

An expert witness, Luis Gary  [**4] Lissade, testified regarding Teleco's history. At Teleco's formation in 1968, the Haitian government gave the company a monopoly on telecommunication services. Teleco had significant tax advantages and, at its inception, the government appointed two members of Teleco's board of directors. Haiti's  [*918]  President appointed Teleco's Director General, its top position, by an executive order that was also signed by the Haitian Prime Minister, the minister of public works, and the minister of economy and finance. In the early 1970s, the National Bank of Haiti gained 97 percent ownership of Teleco. From that time forward, the Haitian President appointed all of Teleco's board members. Sometime later, the National Bank of Haiti split into two separate entities, one of which was the Banque de la Republique d'Haiti (BRH). BRH, the central bank of Haiti, is roughly equivalent to the United States Federal Reserve. BRH retained ownership of Teleco. In Mr. Lissade's expert opinion, for the years relevant to this case, Teleco belonged "totally to the state" and "was considered . . . a public entity."

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752 F.3d 912 *; 2014 U.S. App. LEXIS 9096 **; Fed. Sec. L. Rep. (CCH) P97,966; 24 Fla. L. Weekly Fed. C 1349; 2014 WL 1978613

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JOEL ESQUENAZI, CARLOS RODRIGUEZ, Defendants - Appellants.

Subsequent History: US Supreme Court certiorari denied by Esquenazi v. United States, 135 S. Ct. 293, 190 L. Ed. 2d 141, 2014 U.S. LEXIS 6543 (U.S., Oct. 6, 2014)

Post-conviction proceeding at, Magistrate's recommendation at Joseph v. Mechling, 2015 U.S. Dist. LEXIS 149014 (W.D. Pa., Oct. 8, 2015)

Post-conviction proceeding at, Motion denied by, Without prejudice, Request denied by, Without prejudice United States v. Esquenazi, 2015 U.S. Dist. LEXIS 189003 (S.D. Fla., Oct. 19, 2015)

Prior History:  [**1] Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:09-cr-21010-JEM-1.

United States v. Esquenazi, 2011 U.S. Dist. LEXIS 163892 (S.D. Fla., Oct. 12, 2011)

CORE TERMS

instrumentality, entity, district court, enhancement, sentencing, convictions, bribe, money-laundering, foreign government, enterprise, declaration, challenges, factors, instructions, conspiracy, marks, bribery, forfeiture, indictment, appointed, quotation, governmental function, proceeds, counts, sufficiency of evidence, obligations, performs, provide a service, public entity, designated

Criminal Law & Procedure, Bribery, Public Officials, Elements, Governments, Legislation, Interpretation, General Overview, Standards of Review, De Novo Review, Jury Instructions, Trials, Jury Instructions, Judicial Discretion, Sufficiency of Evidence, Vagueness, Plain Error, Reviewability, Preservation for Review, Objections, Requirements, Particular Instructions, Harmless & Invited Error, Evidence, Burdens of Proof, Proof Beyond Reasonable Doubt, Discovery & Inspection, Brady Materials, Brady Claims, Abuse of Discretion, Discovery, Banking Law, Racketeering, Money Laundering, Preliminary Proceedings, Pretrial Motions & Procedures, Dismissal, Substantial Evidence, Courts, Judicial Precedent, Penalties, Definition of Plain Error, Sentencing Guidelines, Adjustments & Enhancements, Aggravating Role, Appeals, Clear Error Review, Obstruction of Justice, Sentencing, Appealability, Imposition of Sentence, Findings, Forfeitures, Proceedings, Plain Error