Case 2:09-cr-00081-GW Document 97

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KELLEY DRYE & WARREN LLP WASHINGTON HARBOUR, SUITE 400 3050 K STREET, NW WASHINGTON, DC 20007-

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@kelleydrye.com sgehan@kelleydrye.com 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 Hac Vice for Purposes of Appearing Specially Attorneys Appearing Specially for Defendants JUTHAMAS SIRIWAN and JITTISOPA SIRIWAN UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CR Nos. 09-00081-1; 09-00081-2 UNITED STATES OF AMERICA, Plaintiff, v. DEFENDANTS STATUS REPORT Date: November 29, 2012 Time: 8:30 a.m. Crtrm.: 10 The Honorable George H. Wu, Crtrm. 10

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KELLEY DRYE & WARREN LLP WASHINGTON HARBOUR, SUITE 400 3050 K STREET, NW WASHINGTON, DC 20007-

JUTHAMAS SIRIWAN and JITTISOPA SIRIWAN, Defendants Date of Filing: November 15, 2012

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KELLEY DRYE & WARREN LLP WASHINGTON HARBOUR, SUITE 400 3050 K STREET, NW WASHINGTON, DC 20007-

Pursuant to this Courts Order of July 31, 2012 (Dock. No. 95), Defendants, Governor Siriwan and Ms. Siriwan, respectfully submit this Status Report. The Court has ordered two stays in this case to provide the Kingdom of Thailand an opportunity to act on the United States request to extradite the Siriwans. At the January 30, 2012, hearing, this Court permitted the United States to pursue its request for extradition, which it voluntarily stayed the previous summer. During this hearing, this Court expressed the view that Thailands response to this request may shed further light on Defendants arguments relating to Thailands superior interests in the matter and expressions of exclusive jurisdiction reflected in that nations laws. Fully nine months have passed since the United States request for extradition. Needless to say, the Defendants have not been extradited, and the United States has just made Defendants aware that the Kingdom of Thailand has formally postponed extradition via official channels. Defendants Motion to Dismiss is ripe for decision, and the Court should grant it. I. THE KINGDOM OF THAILAND HAS FORMALLY POSTPONED RESOLUTION OF THE UNITED STATES REQUEST The formal communication from the Thai Deputy Attorney General and Acting Attorney General, Mr. Thavorn Panichpant, confirm the Siriwans are now facing the prosecution in Thailand. Pending the gathering of further evidences, the Kingdom intends to formally charge[] Governor Siriwan for violations of Sections 6 and 11 of the Official in Organizations or Government Act B.E. 2502 (1959), as well as Section 12 of the Offences regarding to the Governments Bidding Process, B.E. 2542 (1993). Ms. Siriwan will be charged as a supporter of these alleged crimes. As a result, Thailand has now postpone[d] the extradition process of both persons as requested by the U.S. Government, according to the Extradition Act, B.E. 2551 (2008), Section 14 (2), (4) in addition to the Extradition Treaty between Thailand and U.S.A. Section 5, second Paragraph. As we will

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show, the authorities cited by the Kingdom in its decision support Defendants Motion to Dismiss. II. THE KINGDOMS FORMAL COMMUNICATION SUPPORTS THE ELEMENTS OF SIRIWANS MOTION TO DISMISS The authorities cited in the Acting Attorney Generals letter include the Thai Extradition Act, Section 14(2), which, in relevant part, states: if the request for extradition affects other cases or criminal proceedings which the person is being charged in Thailand, the Central Authority may postpone the extradition proceedings . . . .1 More importantly, subsection (4), in full, states: If the Central Authority considers that the request may affect the international relation, or there is a reason not to proceed with the request, or the request is not subject to the provisions of this Act, the Central Authority shall notify the Requesting State or Ministry of Foreign Affairs, as the case may be, for further proceedings. For its part, the U.S./Thai Extradition Treaty,2 Article 5 (Prior Jeopardy for the Same Offense), paragraph 2, provides that [e]xtradition may be denied when the person sought is being or has been proceeded against in the Requested State for the offense for which extradition is requested. A. The Kingdoms Response Supports the Siriwans Arguments Relating to Exclusive and Organic Jurisdiction

By postpon[ing] resolution of the United States extradition request, the Kingdom of Thailand, through its official channels, is communicating in express terms that Thailand desires to take the lead in any prosecution of the Siriwans, and that it is doing so. As Acting Attorney General Panichpant states, Currently, we
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Included in the Docket as Exhibit A to the Decl. of Dornnapha Sukkree filed in conjunction with Defendants brief on Thai extradition law (Dock. No. 51-1). 2 Treaty Between the Government of the Kingdom of Thailand and the Government of the United States of America Relating to Extradition, Art. 5(2), December 14, 1983, 98.16 U.S.T. I, Heins KAV 1940 (entered into force May 17, 1991).
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KELLEY DRYE & WARREN LLP WASHINGTON HARBOUR, SUITE 400 3050 K STREET, NW WASHINGTON, DC 20007-

are in the process of gathering further evidences before completing the investigation in order to bring both offenders to court to be formally charged. The Kingdoms response is entirely consistent with Defendants arguments that Thailand exercises exclusive jurisdiction over the extraterritorial crimes of its officials, both as a matter of Thai law and the international precept of organic jurisdiction. (See, e.g., Def.s Mot. to Dismiss at Part II.D (Dock. No. 64); see also Def.s Reply Br. at Part V (Dock. No. 74).) Indeed, the letter refers to subsection (4), which applies to cases that, among other things, may affect the international relation. The new formal communication represents a direct, albeit diplomatic, expression of the Kingdoms sovereignty and legal interests, rooted in its criminal statutes and Section 9 of its Penal Code. This Court has likewise referenced Thailands sovereign interests in addressing its officials alleged corruption. Throughout this case, the United States has praised Thai government cooperation in the Bangkok International Film Festival investigation and the Greens prosecution. (See Govts Opp. to Defs Mot. for Leave to Appear Specially at 19 (Dock. No. 55) (It must be noted, however, that over the past several years, there has been close coordination with Thailand via the Mutual Legal Assistance Treaty process with respect to the instant case as well as the related Green case.).) But Thailand has now expressed its sovereign desire to deal with matters relating to the Siriwans itself. Thailands expression of sovereign interest decisively tilts the balance of the Restatement (Third) of Foreign Relations 403 reasonableness inquiry against the prosecution currently before this Court. Notably, the Kingdom has expressed sovereign interest as to both the Governor and Ms. Siriwan, whom, as the Indictment alleges, both held official positions with the Thai government. (Indictment 4-6.)

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B.

Thailand Views The Offenses Charged in Both Countries as The Same

By referencing the double jeopardy provisions of the U.S./Thai Extradition Treaty, of which Article 5(2)) is a part, Thailand also is treating the charges against the Siriwans in the U.S. and the pending charges recommended by Thailands National Anti-Corruption Commission as essentially the same. Thailands assessment of the matter conflicts directly and wholly with the United States continuing protestations regarding the supposed distinctiveness of its charges as compared to those laid by the Kingdom. (That assessment also conflicts with the wafer-thin distinction the United States is unavailingly trying to make to save its money laundering charges.) Significantly, as well, Article 5(1) of the Treaty prohibits Thailand from extraditing if the Siriwans are convicted or acquitted. III. THE GOVERNMENTS UNTIMELY REHASH OF ISSUES EXTENSIVELY BRIEFED IS UNAVAILING At its January 30, 2012, hearing, this Court extensively questioned the United States tactic of charging the Greens alleged payment of the alleged bribe to Governor Siriwan as a money laundering transaction under circumstances in which the Governor could not be charged with violating the Foreign Corrupt Practices Act (FCPA) or conspiring to violate FCPA. As Defendants extensively demonstrated, this novel approach runs against both Congress express choice and the reasoning behind the holding in Castle v. United States, 925 F.2d 831 (5th Cir. 1991).3 In apparent response to the Courts observations, the United States now seeks a fourth bite at the apple by filing a Second Supplemental Brief without the Courts leave in what was supposed to be an updated Status Report. (Dock. No. 96.) The fact other foreign officials have not challenged this charging tactic in their cases does not make this any less of a case of first impression, as it always has been.
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KELLEY DRYE & WARREN LLP WASHINGTON HARBOUR, SUITE 400 3050 K STREET, NW WASHINGTON, DC 20007-

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KELLEY DRYE & WARREN LLP WASHINGTON HARBOUR, SUITE 400 3050 K STREET, NW WASHINGTON, DC 20007-

While the Siriwans believe that the United States should have sought the Courts leave to file this new brief, its recycled arguments do not warrant a finding in favor of the Government. For example, the Fifth Circuits decision in Castle is not as narrow as the Government purports. While Castle looked to Gebardi v. United States, 287 U.S. 112 (1932), for support, its holding is much broader: Based upon the language of the statute and the legislative history, this Court finds in the FCPA what the Supreme Court in Gebardi found in the Mann Act: an affirmative legislative policy to leave unpunished a well-defined group of persons who were necessary parties to the acts constituting a violation of the substantive law. 925 F.2d at 836. As Defendants have explained over the extensive course of briefing relating to the Motion to Dismiss, the fact the alleged bribe was consummated via wire transfer does not alter the substantive calculus. The facts in United States v. Lazarenko, 564 F.3d 1026, 1037 (9th Cir. 2009), also conclusively differ. Mr. Lazarenko was charged with laundering bribe proceeds well after the bribe payments themselves had already been made. Defendants have also extensively addressed United States v. Bodmer, 342 F. Supp. 2d 176 (S.D.N.Y. 2004), a case that likewise involved a money launderer of proceeds derived from violations of the FCPA, id. at 191, rather than the consummation of the alleged bribe itself. Likewise, and to the extent a legislative staff report is probative of anything, the passages to which the Government now would directs the Court, (2nd Supp. Br. at 7), focus on efforts to hide proceeds of bribes already made. As the United States itself has made abundantly clear, this is not a case about proceeds. Further, the statements quoted themselves make exactly the same point the Siriwans did in their opening brief, specifically that the PATRIOT Act amendments to the Money Laundering Control Act (MLCA) were aimed at the harm of U.S. banks being utilized to launder foreign corrupt assets. (Def.s Mot. to Dismiss at 22-24.)

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KELLEY DRYE & WARREN LLP WASHINGTON HARBOUR, SUITE 400 3050 K STREET, NW WASHINGTON, DC 20007-

That is a far different matter than the facts in this case. The quoted observation made in floor debate by Sen. Kerry is likewise off point, as it addresses money laundering offenses against foreign jurisdictions. Id. at 6; see also Garcia v. United States, 469 U.S. 70, 77 (1984) (the Supreme Court ha[s] eschewed reliance . . . on casual statements from floor debates) (citing United States v. OBrien, 391 U. S. 367, 385 (1968)). As to the well-worn jurisdictional arguments relating to MLCA section 1856(b)(2), none of the cases cited deal with the issue of personal jurisdiction, such as in the manner with which it was dealt in Bodmer. CONCLUSION The purposes of the Courts stay have now been fulfilled. To the extent the Court desired a more tangible expression of the Kingdoms interest than the Siriwans presented in their briefing, the Court now has this information at hand. Further, Thailands response belies the United States effort to charge an FCPA violation as derivative money laundering. In signaling its willingness to allow the Siriwans to appear specially, this Court has recognized the Defendants and, derivatively, Thailands interests in having these allegations of official Thai government misconduct heard in Thailand, as well as the equitable interests involved. Therefore, the Siriwans respectfully request that this case be decided, on the briefs, in favor of the Defendants. DATED: November 15, 2012 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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