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Organized Crime Groups Case: 1:13-cr-00515 Document #: 40 Filed: 07/24/17 Page 1 of 115 PageID #:197 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA ) ) v. ) No. 13 CR 515 ) Hon. Rebecca R. Pallmeyer DMITRY FIRTASH, ) also known as, “Dmytro Firtash,” ) and “DF,” and ) ANDRAS KNOPP ) GOVERNMENT’S CONSOLIDATED RESPONSE TO DEFENDANT FIRTASH’S AND KNOPP’S MOTIONS TO DISMISS INDICTMENT JOEL R. LEVIN SANDRA MOSER Acting United States Attorney Acting Chief, Fraud Section United States Department of Justice By: AMARJEET S. BHACHU By: JONATHAN P. ROBELL Assistant United States Attorney Trial Attorney 219 South Dearborn Street United States Department of Justice Fifth Floor Criminal Division, Fraud Section Chicago, Illinois 60604 1400 New York Avenue, NW (312) 469-6212 Washington, DC 20530 MICHAEL T. DONOVAN Special Assistant United States Attorney 219 South Dearborn Street Fifth Floor Chicago, Illinois 60604 Case: 1:13-cr-00515 Document #: 40 Filed: 07/24/17 Page 2 of 115 PageID #:197 TABLE OF CONTENTS Page: BACKGROUND ...........................................................................................................................1 SUMMARY OF ARGUMENT ..................................................................................................7 ARGUMENT ..............................................................................................................................16 I. Defendants’ Motions are Not Ripe for Decision as a Matter of International Comity. .............................................................................................................................16 II. Defendants’ Motions to Dismiss for Improper Venue Should Be Denied. ............21 A. Applicable Law. ...................................................................................................21 B. Analysis. ...............................................................................................................29 1. Venue is Proper in this District. ...........................................................29 2. The Defendants’ Venue Arguments are Meritless. ...........................31 III. Defendants’ Motions to Dismiss Count One for Failure to State an Offense Should Be Denied. ...........................................................................................................36 A. Background concerning the RICO Statute, the United States’s Treaty Obligations to Combat Transnational Organized Crime, and the Supreme Court’s Decision in Nabisco. ......................................................36 B. Count One Sufficiently Alleges the Offense of Racketeering Conspiracy. ..........................................................................................................44 ii Case: 1:13-cr-00515 Document #: 40 Filed: 07/24/17 Page 3 of 115 PageID #:197 Page: C. The Defendants’ Challenges to the Sufficiency of Count One are Meritless. .............................................................................................................46 1. Count One Contains Sufficient Allegations that the Enterprise Affected Commerce............................................................47 2. Count One Contains Sufficient Allegations Concerning the Predicate Offenses. ................................................................................50 a. The Allegations in Count One Concerning the Money Laundering Predicate are Sufficient. .......................................53 (1) Correspondent Bank Transactions are Within the Scope of the Money Laundering Statute. .............53 (2) There is No Requirement that Firtash Personally Engaged in Illegal Activity in the United States. .................................................................60 b. The Allegations in Count One Concerning the Travel Act Predicate are Sufficient. .....................................................66 IV. Defendants’ Motions to Dismiss Counts Two through Four for Failure to State an Offense Should Be Denied. ............................................................................69 V. Defendants’ Motions to Dismiss Count Five for Failure to State an Offense Should Be Denied. ...........................................................................................................70 A. When Alleging a Conspiracy to Violate the FCPA, the Government is Not Required to Allege that a Conspirator “Committed Bribery” within the United States. ..................................................................................70 1. Applicable Law. .......................................................................................70 2. Analysis. ..................................................................................................74 iii Case: 1:13-cr-00515 Document #: 40 Filed: 07/24/17 Page 4 of 115 PageID #:197 Page: B. Defendants Firtash and Knopp Do Not Have to Be “Domestic Concerns” or to Personally Take An Act within the United States in Order to Be Prosecuted for Conspiring to Violate Sections 78dd-2 and 78dd-3 of the FCPA. ...................................................................................76 1. Applicable Law. .......................................................................................76 2. Analysis. ..................................................................................................78 a. Gebardi Does Not Apply to this Case Because the Defendants Are Neither Victims of, Nor Necessary Parties to, an FCPA Violation. .................................................82 b. Hoskins’ Application of the Narrow Exception in Gebardi to the FCPA is Inconsistent with the Supreme Court’s More Recent Decision in Ocasio and Seventh Circuit Precedent. .......................................................................90 VI. Defendants’ Motions to Dismiss on Due Process Grounds Should Be Denied ...............................................................................................................................93 A. The Due Process Clause Does Not Apply to the Defendants. ....................93 B. The Defendants’ Due Process Arguments are Without Merit. ..................94 1. Applicable Law. .......................................................................................94 2. Analysis. ..................................................................................................97 a. This Prosecution Does Not Offend Due Process Because the Conduct Took Place in Substantial Part in the United States. .......................................................................97 b. This Prosecution Does Not Offend Due Process Because the Conduct Had or Was Intended to Have Substantial Effect within the United States. .........................98 iv Case: 1:13-cr-00515 Document #: 40 Filed: 07/24/17 Page 5 of 115 PageID #:197 Page: c. This Prosecution Does Not Offend Due Process Because the Conduct Was Directed Against Significant United States Interests. ......................................100 d. This Prosecution Does Not Offend Due Process Because it is Reasonable. .........................................................106 CONCLUSION .........................................................................................................................108 v Case: 1:13-cr-00515 Document #: 40 Filed: 07/24/17 Page 6 of 115 PageID #:197 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA ) ) v. ) No. 13 CR 515 ) Hon. Rebecca R. Pallmeyer DMITRY FIRTASH, ) also known as, “Dmytro Firtash,” ) and “DF,” and ) ANDRAS KNOPP ) GOVERNMENT’S CONSOLIDATED RESPONSE TO DEFENDANT FIRTASH’S AND KNOPP’S MOTIONS TO DISMISS INDICTMENT The UNITED STATES OF AMERICA, by JOEL R. LEVIN, Acting United States Attorney for the Northern District of Illinois, and SANDRA MOSER, Acting Chief, Fraud Section, United States Department of Justice, hereby respond to defendant Dmitry Firtash’s and Andras Knopp’s motions to dismiss the indictment (the “Motions”). In support of this response, the government respectfully represents as follows: BACKGROUND Summary of Alleged Offense Conduct The instant prosecution concerns defendants Dmitry Firtash and Andras Knopp, two organized crime members, and their criminal organization’s efforts to introduce millions of pounds of illegally obtained goods into the United States. Specifically, beginning no later than in or around 2006, Firtash, Knopp and others planned to bribe Indian public officials in order to receive the necessary approvals for a mining project in India. A substantial amount of the products to be generated from the mining activity— Case: 1:13-cr-00515 Document #: 40 Filed: 07/24/17 Page 7 of 115 PageID #:197 approximately five to twelve million pounds of titanium sponge on an annual basis—were intended for sale to a company (“Company A”) headquartered in Chicago, Illinois. Moreover, in order to carry out this illegal bribery activity, individuals working with Firtash, and under Firtash’s direction and control, utilized United States financial institutions to transfer millions of dollars of bribe money to Indian officials, used the communications infrastructure of the United States to direct the ongoing illegal activity, and traveled to, and held meetings within, the United States and elsewhere to advance the illegal activity by, for example, attending meetings in the United States with Company A personnel to negotiate the sale of products to be obtained through the illegal bribery of Indian officials. The conspirators also caused personnel from Company
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