Case: 2:17-cr EAS Doc #: 57 Filed: 10/01/18 Page: 1 of 6 PAGEID #: 413 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

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1 Case: 2:17-cr EAS Doc #: 57 Filed: 10/01/18 Page: 1 of 6 PAGEID #: 413 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION UNITED STATES OF AMERICA, Plaintiff, CASE NO. 2:17-CR-233(3) CHIEF JUDGE SARGUS vs. AZAT MARTIROSSIAN, a/k/a AZAT MARTIROSYAN, Defendant. GOVERNMENT S RESPONSE TO DEFENDANT S NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF MOTION TO DISMISS SUPERSEDING INDICTMENT The United States, by and through undersigned counsel, responds to Defendant Azat Martirossian s notice of supplemental authority in support of his motion to dismiss Counts 9 through 19 of the Superseding Indictment (ECF No. 55; see also ECF No. 28). For the following reasons, the defendant s supplemental authority is not at all relevant to the charges in this case, as was recognized by the very decision the defendant cites as well as every other court that has addressed this issue. Moreover, the defendant remains a fugitive who refuses to submit to this Court s jurisdiction, and the fugitive disentitlement doctrine should bar consideration of his motion to dismiss until he appears in the United States to answer the charges against him. (See ECF No. 41.) MEMORANDUM In his notice of supplemental authority, the defendant attempts to draw a connection between United States v. Hoskins, No cr, 2018 WL (2d Cir. Aug. 24, 2018) and

2 Case: 2:17-cr EAS Doc #: 57 Filed: 10/01/18 Page: 2 of 6 PAGEID #: 414 the defendant s motion to dismiss the money laundering counts against him. (ECF No. 55-1, PAGEID#318.) In Hoskins, the Second Circuit held that a non-resident foreign national who does not fall within any of the categories enumerated in the anti-bribery provisions of the Foreign Corrupt Practices Act ( FCPA ), 15 U.S.C. 78dd-1, et seq., cannot be prosecuted as an accomplice or a co-conspirator for a violation of the FCPA WL , at * The Second Circuit s decision in Hoskins relates only to violations of the FCPA s anti-bribery provisions, and was based on an interpretation of the text and legislative history of the FCPA. In short, the Hoskins decision concluded that the anti-bribery provisions of the FCPA were intended to apply only to certain categories of persons, and therefore that these provisions fell within a very narrow exception to the general rule that a person may be liable for conspiracy even though he is incapable of committing the substantive offense himself. See generally Gebardi v. United States, 287 U.S. 112, 120 (1932) (describing exception to general rule); see also Ocasio v. United States, 136 S. Ct. 1423, 1432 (2016) (concluding that the Gebardi exception to general principles of conspiracy law apply only when a person s consent or acquiescence is inherent in the underlying substantive offense and that person is not covered by the prohibitions of the statute). Hoskins is wholly inapplicable in this case because the defendant is not charged with a violation of the FCPA; the defendant is charged with conspiracy to commit money laundering, in violation of 18 U.S.C. 1956(h) (Count 9), and money laundering, in violation of 18 U.S.C (Counts 10 19). (ECF No. 13, PAGEID#91 92). In fact, the Hoskins decision actually supports the charges in this case, because the Second Circuit held that the money laundering conspiracy and substantive charges against Hoskins (for which the specified unlawful activity is a violation of the FCPA) could proceed WL , *3 n.3. Thus, the Hoskins Court explicitly recognized 2

3 Case: 2:17-cr EAS Doc #: 57 Filed: 10/01/18 Page: 3 of 6 PAGEID #: 415 that its decision regarding the conspiracy to violate the FCPA had no bearing on the money laundering charges against Hoskins. Id. This is consistent with the many other courts that have held that a defendant could be convicted of committing money laundering (or conspiring to commit money laundering) where the specified unlawful activity was a violation of the FCPA, even where the defendant cannot be convicted of violating the FCPA for the very same reasons outlined in the Hoskins decision. For example, courts have long held that foreign officials cannot be convicted of violating the FCPA, conspiring to violate the FCPA, or aiding and abetting a violation of the FCPA. See, e.g., United States v. Castle, 925 F.2d 831, 831 (5th Cir. 1991) (holding that foreign officials may not be prosecuted under 18 U.S.C. 371 for conspiring to violate the FCPA based on the Gebardi principle). Yet the Eleventh Circuit and a number of district courts have upheld convictions of foreign officials for engaging in money laundering where the specified unlawful activity was a violation of the FCPA. See, e.g., United States v. Duperval, 777 F.3d 1324, 1328 (11th Cir. 2015) (affirming conviction of Haitian foreign official for money laundering and conspiracy to commit money laundering where the money laundering involved the proceeds of violations of the FCPA). In fact, in United States v. Bodmer, 342 F.Supp.2d 176, 191 (S.D.N.Y. 2004), the court addressed this very issue. The court dismissed the FCPA conspiracy count under the Gebardi principle because the defendant did not fall within the categories of individuals covered by the FCPA, but nonetheless permitted the money laundering charges to proceed, holding that [w]hether [the defendant] violated the FCPA, and the fact that he cannot be criminally sanctioned for that conduct, is irrelevant to proving that he transported money in furtherance of FCPA violations.. In doing so, the Bodmer court noted that [i]f immunity from the FCPA s criminal penalties automatically conferred non-resident foreign nationals with immunity from the money laundering statute, these 3

4 Case: 2:17-cr EAS Doc #: 57 Filed: 10/01/18 Page: 4 of 6 PAGEID #: 416 non-resident foreign nationals could openly serve as professional money launderers of proceeds derived from violations of the FCPA, without repercussion, which would contravene Congress s clearly articulated intention to include foreigners within the scope of the money laundering statute. Id. This is also consistent with the more general proposition, widely recognized by courts, that a defendant need not be charged with, or even involved in, the underlying crime associated with the money laundering charge in order to be convicted of the money laundering charge. See e.g., Jamieson v. United States, 692 F.3d 435, 441 n.4 (6th Cir. 2012) ( There is no requirement that a defendant be separately charged with or convicted of an offense for it to qualify as a predicate offense. ); see also United States v. Awada, 425 F.3d 522, 525 (8th Cir. 2005) (explaining that there is absolutely no requirement that a money laundering defendant also be involved in the underlying crime. ); United States v. Cherry, 330 F.3d 658, 667 (4th Cir. 2003) ( It is clear that a defendant may be convicted of money laundering even if she is not a party to, much less convicted of, the specified unlawful activity. ); United States v. Mankarious, 151 F.3d 694, 703 (7th Cir. 1998) (upholding money laundering convictions even though the defendant had been acquitted of specified unlawful activity). The defendant has not pointed to a single case suggesting otherwise, because no court has held that a defendant incapable of committing an FCPA violation cannot be convicted of engaging in money laundering where an FCPA violation is the specified unlawful activity. The government also respectfully submits that the Court should not entertain motions, or supplemental notices of authority, by the defendant while he remains safely outside the jurisdiction of the United States and is unwilling to submit himself to this Court s jurisdiction except for the purpose of obtaining favorable rulings. 4

5 Case: 2:17-cr EAS Doc #: 57 Filed: 10/01/18 Page: 5 of 6 PAGEID #: 417 CONCLUSION For these reasons, the defendant s supplemental authority is non-binding and immaterial. He is a fugitive who refuses to submit to this Court s jurisdiction, and the fugitive disentitlement doctrine should bar consideration of his motion until he appears in the United States to answer the charges against him. Accordingly, the United States respectfully requests that this Court hold the defendant s motion to dismiss Counts 9 through 19 of the Superseding Indictment (ECF No. 28) in abeyance unless and until the defendant submits himself to the jurisdiction of the United States Marshals Service for the Southern District of Ohio or is taken into custody by the same. In the alternative, and to the extent the Court does not grant the government s request to hold this motion in abeyance, the United States respectfully requests that this Court deny the defendant s motion, or grant the government an extension of 30 days to fully brief and respond to the defendant s motion. Respectfully submitted, SANDRA MOSER Chief, Fraud Section BENJAMIN C. GLASSMAN United States Attorney s/vanessa S. Snyder VANESSA S. SNYDER Trial Attorney Criminal Division, Fraud Section U.S. Department of Justice 1400 New York Ave., NW Washington, DC Office: (202) Fax: (202) Vanessa.Snyder@usdoj.gov s/jessica H. Kim JESSICA H. KIM (87831) Assistant United States Attorney 303 Marconi Boulevard, Suite 200 Columbus, Ohio Office: (614) Fax: (614) Jessica.Kim@usdoj.gov 5

6 Case: 2:17-cr EAS Doc #: 57 Filed: 10/01/18 Page: 6 of 6 PAGEID #: 418 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served this 1st day of October 2018, electronically upon all counsel of record. s/jessica H. Kim JESSICA H. KIM ( ) Assistant United States Attorney 6