FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 FEBRUARY 16, 2010

JOHN LEY

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-11446

________________________

D. C. Docket No. 07-20999-CR-JAL

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANKLIN DURAN,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(February 16, 2010)

Before WILSON and ANDERSON, Circuit Judges, and RESTANI, Judge.

*

Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,

*

sitting by designation.
WILSON, Circuit Judge:

Franklin Duran (“Duran”), a Venezuelan citizen, was convicted of

conspiring with one of his business partners and three other co-conspirators to

knowingly act in the United States as an agent of a foreign government, without

prior notification to the Attorney General of the United States, in violation of 18

U.S.C. § 371, and of acting in the United States as an agent of a foreign

government, without prior notification to the Attorney General, in violation of 18

U.S.C. § 951, as a result of his involvement in attempting to cover up the so-called

“Suitcase Scandal” between Venezuela and Argentina. Duran’s business partner

and the two other co-conspirators pled guilty to the same charges and testified

against Duran at his trial. Duran now raises five issues on appeal: (1) that § 951 is

unconstitutionally vague as applied to the facts of this case; (2) that Federal Rule of

Evidence 404(b) character evidence was admitted for an improper purpose; (3) that

the Government engaged in prosecutorial misconduct by improperly commenting

on the Rule 404(b) evidence; (4) that evidence of Duran and his co-conspirators’

lack of knowledge of the notification requirement under § 951 was erroneously

excluded; and (5) that the district court should have admitted several hearsay

statements evidencing Duran’s lack of intent to act as an agent of a foreign

government under § 951. Upon considering the briefs, the record, and after the

2
benefit of oral argument, we affirm Duran’s convictions under 18 U.S.C. §§ 371

and 951.

I. BACKGROUND

Duran was a co-proprietor of Venoco, the largest private petro-chemical

enterprise in Venezuela, which is reliant upon the operations of Petróleos de

Venezuela, S.A. (“PDVSA”), an energy corporation and monopoly owned and

operated by the Venezuelan government. Several of Duran’s other ventures were

also heavily dependent upon the favor of the Venezuelan government. Carlos

Kauffmann (“Kauffmann”) was one of Duran’s co-conspirators and Duran’s main

business partner, as the other co-proprietor of Venoco. Prominent among Duran’s

business partners was Guido Alejandro Antonini Wilson (“Antonini”), a dual

citizen of Venezuela and the United States, who engaged in commercial dealings

with the Venezuelan government and other ventures involving Venezuelan coinvestors. In addition to being business partners, Duran, Kauffmann, and Antonini

were personal friends.

The “Suitcase Scandal” between Argentina and Venezuela erupted on

August 4, 2007, when Argentine customs agents searched a suitcase Antonini was

carrying upon arrival in Buenos Aires, Argentina on a private plane chartered by

the PDVSA. A customs agent discovered approximately $800,000 in United States

3
currency in the suitcase. It is a criminal violation in Argentina to fail to declare

more than $10,000 being imported into the country. Antonini, traveling on his

Venezuelan passport, executed a customs statement in which he listed Duran’s

Caracas, Venezuela apartment as his residence. Thereafter, Antonini attended a

reception for Venezuelan President Hugo Chavez in Buenos Aires and boarded the

first flight to Miami. As a result of Antonini leaving Argentina without resolving

the introduction of $800,000 into Argentina without declaring it, the Argentine

authorities began extradition proceedings against Antonini. Communication

among Antonini, Duran, and Kauffmann commenced immediately after Antonini

returned to Miami because Duran and Venoco had been implicated when Antonini

listed Duran’s apartment on the customs statement. The media speculated that the

discovery of the suitcase with $800,000 was evidence that the governments of

Venezuela and Argentina had been secretly channeling large sums of money from

PDVSA to Argentine presidential candidate Cristina Fernández de Kirchner,

favored by the Venezuelan regime.

After being implicated in the “Suitcase Scandal,” Duran contacted Tarek AlAissimi, Venezuela’s Minister of the Interior, and General Henry Rangel Silva

(“Rangel”), Director of the Venezuelan intelligence agency, Dirección de los

Servicios de Inteligencia y Prevención (the “DISIP”). They informed Duran that

4
the DISIP would be handling the “Suitcase Scandal.” On August 10, 2007, Duran

and his brother, a DISIP agent, traveled to Miami to get Antonini to set forth a full

written account of the incident with the suitcase. Antonini gave the Durans a full

oral recounting, but he declined to provide the requested written narrative. Shortly

thereafter, Antonini hired an attorney and entered into a cooperation agreement

with the FBI. In Venezuela, the DISIP formulated a strategy to defuse the

“Suitcase Scandal” in hopes of concealing evidence that the $800,000 found in the

suitcase was a campaign contribution from the Venezuelan government to the

Argentine presidential candidate. The DISIP proposed that a forged and backdated document purporting to attest to Antonini’s removal of $800,000 of his own

money from Venezuela be placed in the files of Venezuela’s customs authority.

Then, the DISIP would retain an Argentine lawyer, pursuant to Antonini’s

execution of a power of attorney, to represent Antonini for failing to declare the

money upon arrival in Argentina. Thus, if Antonini were to claim the money as his

own, the matter would be resolved between Venezuela and Argentina without any

implication that the money was being funneled to the Argentine presidential

candidate.

In order to secure Antonini’s cooperation, the DISIP retained a Venezuelan

attorney, Moises Maionica (“Maionica”), one of the co-conspirators who pled

5
guilty and testified against Duran, believing that he could address Antonini’s legal

concerns and prepare and oversee the execution of a power of attorney. The

1

DISIP also enlisted the help of Duran and Kauffmann because of their personal

relationship and potential influence over Antonini. Duran, Kauffmann, and

Maionica met with Antonini several times in Miami to discuss the DISIP’s strategy

and to convince Antonini to cooperate. Antonini wore a recording device provided

by the FBI to all of the meetings. Duran repeatedly tried to get Antonini to sign a

power of attorney. D.E. 318 at 80. Duran, Kauffmann, and Maionica assured

Antonini that the Venezuelan and Argentine governments would come to an

agreement, and Argentina would drop the charges against Antonini once he

executed the power of attorney. Antonini raised some concerns with the proposal

and remained non-committal.

After several unsuccessful attempts to get Antonini to sign the power of

attorney, Duran, Kauffmann, and Maionica met with Rangel at the DISIP

headquarters in Caracas, Venezuela. Duran told Rangel that he would seek to get

Antonini to sign the power of attorney. Id. In September 2007, Duran met with

Antonini and encouraged him to sign the power of attorney, but Antonini refused.

Frustrated with Antonini’s non-cooperation, Duran did not meet with Antonini

Maionica was retained and compensated by the DISIP. He acknowledged that, at all 1

times, he acted as an agent of the Venezuelan government. 

6
again until December 2007. In early October 2007, Antonini sent a written offer to

President Hugo Chavez, requesting $2 million in monetary compensation and

DISIP assistance in forging sufficient documentation to corroborate his ownership

of the $800,000 seized by Argentine officials. On October 28, Antonini met with

DISIP agent Antonio Jose Canchica Gomez (“Gomez”) in a recorded meeting and

reiterated the demands he made to Chavez. Gomez accepted the offer on behalf of

Chavez. After Rangel confirmed the terms with Antonini via telephone, the only

remaining question was how the $2 million would be transferred. At a meeting on

December 11, 2007, Duran supplied Antonini with the falsified documents that

would justify Antonini bringing $800,000 into Argentina. They also discussed the

power of attorney and the payment of the $2 million. As Duran and Maionica left

the meeting, the FBI arrested them.

Before trial, the Government filed several motions in limine relevant to this

appeal. First, the Government sought to preclude the presentation of evidence

regarding the foreign policy or lack of foreign policy between the United States

and Venezuela. The Government was concerned that Duran would introduce such

evidence to show that Duran was the subject of a political prosecution designed to

embarrass the Venezuelan government for illegally contributing to an Argentine

presidential candidate. The Government argued that relations between the United

7
States and Venezuela had nothing to do with Duran’s specific criminal conduct or

the statutes he violated. Additionally, the Government argued that permitting

Duran to raise the defense of being politically prosecuted would be an invitation

for improper jury nullification. Duran responded that the evidence of foreign

policy relations between the United States and Venezuela was directly relevant to

the motives of the Government witnesses, and that the only purpose of the

prosecution was to embarrass the Chavez government in Venezuela by using

Duran as a scapegoat. However, at the status conference, Duran admitted that he

would not defend the case on the basis that it was a political prosecution, even

though he said it was. D.E. 216 at 40. Thus, the district court granted the

Government’s motion in limine to exclude evidence of foreign policy relations

between the United States and Venezuela because it was facially irrelevant to the

crimes charged.

Second, the Government sought to preclude Duran from introducing

evidence about, or making argument regarding, Duran’s assertion that he did not

know about the duty to notify the Attorney General that he would be acting as a

foreign agent on the grounds that such evidence or argument was irrelevant and

confusing to the jury. Duran responded that knowledge of the notification

requirement is relevant to the jury’s determination of whether Duran acted with

8
knowledge that his conduct was unlawful for purposes of establishing his

participation in the charged conspiracy and whether he acted under the direction

and control of a foreign government. The district court granted the Government’s

motion in limine excluding evidence of mens rea of Duran’s failure to notify the

Attorney General of his conduct as a foreign agent because § 951 is a general

intent crime that does not require proof that a defendant knew of the notification

requirement. However, the district court did not preclude the introduction of mens

rea evidence as to the element of knowingly acting as an agent of a foreign

government.

The Government also filed a motion in limine seeking to introduce evidence

pursuant to Federal Rule of Evidence 404(b) of Duran and Kauffmann’s numerous

schemes of giving “kickbacks” to officials of various agencies of the Venezuelan

government, as well as to officials of various states of Venezuela. The

Government argued that such evidence was admissible under Rule 404(b) because

it was relevant to issues other than Duran’s character, including whether Duran

knowingly conspired with Kauffmann and others to act as agents of the

Venezuelan government; whether Duran knowingly acted as an agent of the

Venezuelan government; and whether there was a preexisting relationship between

Duran and the Venezuelan government. In response, Duran argued that the alleged

9
kickback schemes were irrelevant because none of the kickback schemes involved

the DISIP or any official with an identified connection to the DISIP. The district

court initially denied the Government’s request to introduce evidence of Duran’s

kickbacks and only permitted Kauffmann to testify generally in its case-in-chief

that he and Duran gave kickbacks to Venezuelan government officials.

Mid-trial, however, the district court permitted Duran to raise the defense of

entrapment. Duran initially advanced the theory that he acted wholly independent

of the Venezuelan government based upon concern for his own affairs. Duran

revised this initial defense to posit that, while he initially acted on his own, he

became “entrapped” into acting as Venezuela’s agent by Antonini’s insistence that

the aid he sought be provided by the Venezuelan government. Upon request by the

Government, the district court permitted the introduction of Duran’s kickbacks

through Kauffmann’s rebuttal testimony under Rule 404(b) because the evidence

was directly relevant to show Duran’s predisposition to act as an agent of the

Venezuelan government, and thus was admissible to negate Duran’s entrapment

defense.

At trial, the prosecution presented its case through the testimonies of

Antonini, Maionica, and Kauffmann, as amplified by the FBI’s recorded

conversations. A jury convicted Duran of violating 18 U.S.C. §§ 371 and 951, and

10
the district court sentenced him to 48 months’ imprisonment followed by a term of

three years’ supervised release.

II. DISCUSSION

A. 18 U.S.C. § 951 Is Not Unconstitutionally Vague

We review whether a statute is unconstitutionally vague de novo. United

States v. Paradies, 98 F.3d 1266, 1282 (11th Cir. 1996) (citing Dodger’s Bar &

Grill, Inc. v. Johnson County Bd. of County Comm’rs, 32 F.3d 1436, 1443 (10th

Cir. 1994)). Duran argues that § 951 is unconstitutionally vague as applied to the

facts of this case. Specifically, he contends that he did not have notice, and could

not have had notice, of his obligation to notify the Attorney General of his

purportedly legal conduct in the United States on behalf of the Venezuelan

government, presumably because he was not an employee of or spy for the

Venezuelan government. The jury found, however, that he was an agent of a

foreign government. Section 951(a) provides that “[w]hoever, other than a

diplomatic or consular officer or attaché, acts in the United States as an agent of a

foreign government without prior notification to the Attorney General” is guilty of

a crime. Section 951’s corresponding regulations set forth further guidance on

compliance with the statute. See 28 C.F.R. § 73.1 et seq.

Void for vagueness “means that criminal responsibility should not attach

11
where one could not reasonably understand that his contemplated conduct is

proscribed.” United States v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32–33 (1963)

(citing United States v. Harriss, 347 U.S. 612, 617 (1954)). If a vagueness

challenge to a statute does not involve the First Amendment, the analysis must be

as applied to the facts of the case. United States v. Mazurie, 419 U.S. 544, 550

(1975) (citing Nat’l Dairy Prods. Corp., 372 U.S. at 32); United States v. Awan,

966 F.2d 1415, 1424 (11th Cir. 1992) (citing Maynard v. Cartwright, 486 U.S.

356, 361 (1988)). We apply the two-part standard set forth in Kolender v. Lawson,

461 U.S. 352 (1983), when we evaluate a vagueness challenge; it “requires that a

penal statute define the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited and in a manner that does not

encourage arbitrary and discriminatory enforcement.” Awan, 966 F.2d at 1424

(quoting Kolender, 461 U.S. at 357 (internal quotation marks omitted)).

“[S]tatutes are not automatically invalidated as vague simply because difficulty is

found in determining whether certain marginal offenses fall within their language,”

and there is a strong presumption supporting the constitutionality of legislation.

Nat’l Dairy Prods. Corp., 372 U.S. at 32.

Additionally, as the Supreme Court in Cheek v. United States stated, “[t]he

general rule that ignorance of the law or a mistake of law is no defense to criminal

12
prosecution is deeply rooted in the American legal system.” 498 U.S. 192, 199

(1991). Because this rule is based on the common law notion that presumes that

every person knows the law, and the law is definite, the Supreme Court has applied

it to cases construing criminal statutes. Id.

1. The Plain Language of § 951 is Readily Understandable

In analyzing a vagueness claim, the first step in determining whether a

statute provides fair warning is to begin with the language of the statute itself.

United States v. Hunt, 526 F.3d 739, 743 (11th Cir. 2008). Where the language

alone sets forth plainly perceived boundaries, no further inquiry is necessary. Id. at

744. To violate § 951, (1) a person must act; (2) the action must be taken at the

direction of or under the control of a foreign government; and (3) the person must

fail to notify the Attorney General before taking such action. See 18 U.S.C. §

951(a) (criminalizing “acts” of “an agent of a foreign government without prior

notification to the Attorney General”); 18 U.S.C. § 951(d) (defining “agent of a

foreign government” as “an individual who agrees to operate within the United

States subject to the direction or control of a foreign government or official”); 28

C.F.R. § 73.1(a) (defining “agent” as “all individuals acting as representatives of,

or on behalf of, a foreign government or official, who are subject to the direction

and control of that foreign government or official”); 28 C.F.R. § 73.3 (detailing the

13
procedure and means of giving notification to the Attorney General). Nothing in §

951 is, in the context before us, vague. Here, § 951 plainly and concretely

identifies the conduct which constitutes its violation, and the statute’s language is

clear and unambiguous. See United States v. Latchin, 554 F.3d 709, 715 (7th Cir.

2009) (finding that “[i]t was enough for the jury to conclude that Latchin took acts

of some kind on behalf of Iraq without first registering as a foreign agent”

(emphasis in original)); see also United States v. Truong Dinh Hung, 629 F.2d 908,

920 (4th Cir. 1980) (finding the term “agent” to be clear on the face of the statute);

United States v. Lindauer, S.D.N.Y. 2004, ___ F. Supp. 2d ___, at *4 (No. S2 03

CR. 807 (MBM), Dec. 6, 2004) (same). Therefore, the plain language of § 951 and

its corresponding regulations give notice of what is prohibited and are readily

understandable to a person of ordinary intelligence.

2. Section 951 Is a General Intent Crime

Looking beyond the statutory language, Duran argues that § 951 is

unconstitutionally vague because it must require an element of specific intent that a

defendant knew of the duty to notify the Attorney General of conduct that

necessarily involves espionage or subversive activity as an agent of a foreign

government. Specifically, Duran argues that he could not have had notice of the

notification requirement without the specific intent to fail to notify the Attorney

14
General or the specific intent to engage in espionage or subversive activity, which

would have given him the probability of knowledge of the notification

requirement. However, we have routinely validated general intent statutes against

vagueness challenges without suggesting that the lack of a specific intent

component heightens its need for definiteness or otherwise renders the provision

susceptible to constitutional doubt. See, e.g., United States v. Eckhardt, 466 F.3d

938, 943–44 (11th Cir. 2006) (placing “‘annoying, abusive, harassing, or

threatening telephone calls’ in violation of 47 U.S.C. § 223(a)(1)(C)” is not vague

despite absence of specific intent element); United States v. Hedges, 912 F.2d

1397, 1403 (11th Cir. 1990) (finding strict liability offense requiring no scienter

was not vague as judged by normal constitutional standard).

Section 951’s plain language makes it clear that it is a general intent crime,

as there is no mens rea element on the face of the statute. Additionally, in United

States v. Campa, we affirmatively held that § 951 is a general intent crime, and

knowledge of the notification requirement need not be proven by the Government.

529 F.3d 980, 999 (11th Cir. 2008). We joined the Seventh Circuit in Dumeisi,

holding that “section 951 does not require proof that the defendant knew of the

requirement to register.” Id. The silence of § 951 as to a specific intent element is

dispositive of the fact that Congress intended it to be one of general intent. Id.

15
(citing United States v. Ettinger, 344 F.3d 1149, 1158 (11th Cir. 2003)). “[A]

defendant need not intend to violate the law to commit a general intent crime, but

he must actually intend to do the act that the law proscribes.” Id. (alteration in

original) (quoting United States v. Phillips, 19 F.3d 1565, 1576–77 (11th Cir.

1994)) (internal quotation marks omitted). Section 951 proscribes acting as an

agent of a foreign government without first notifying the Attorney General, and a

person of ordinary intelligence can understand what conduct the statute prohibits.

Although we found that § 951 does not require a showing of a heightened mens rea

requirement, the Government must still prove the mens rea of general intent. Id.

In fact, the district court in Campa correctly instructed the jury “that the defendants

must have acted ‘knowingly,’ and that they must have known ‘that [they] had not

provided prior notification to the Attorney General.’” Id. (alteration in original).

What the statute prohibits is clear on its face, and ignorance of the law is no

defense to a criminal prosecution. See id. Accordingly, the fact that § 951 requires

only general intent merely subjects it to simple linguistic scrutiny.

3. Section 951 Does Not Require Actual Notice or Knowledge of the

Notification Requirement

Despite our precedent and the plain language of § 951, Duran argues that the

statute must be read to require actual knowledge or probability of knowledge of the

notification requirement by affirmatively engaging in espionage or subversive

16
activities. Duran argues that in order to avoid a vagueness challenge, we must read

into § 951 an element of specific intent.

It is true that knowledge of a registration or notification statute is required in

some cases; however, knowledge or probability of knowledge is not an element

under § 951, and Duran is deemed to have notice because the statute requires the

affirmative action and conduct of the defendant. Although § 951 appears to be a

registration statute similar to the ordinance held unconstitutional in Lambert v.

California, in which the defendant was convicted for violating a Los Angeles

ordinance requiring all convicted felons who remain in Los Angeles for more than

five days to register, whether a defendant must register under § 951 depends on the

defendant’s action and conduct as an agent of a foreign government. 355 U.S. 225,

226–27 (1957); see Latchin, 554 F.3d at 715. Whereas the registration statute in

Lambert was held unconstitutional in part because it required the defendant merely

to hold the status of felon, under § 951, it is not sufficient for the defendant to hold

the status of an agent of a foreign government—he must also act. See 355 U.S. at

228 (finding the defendant’s conduct “wholly passive”). Essentially, the Lambert

Court distinguished between misfeasance and nonfeasance, and here, Duran

engaged in misfeasance by “acting” as an agent of a foreign government without

notifying the Attorney General before doing so.

17
Duran also cites United States v. Mancuso, a Second Circuit case in which

the defendant was convicted under a statute that “requires any citizen convicted of

narcotics or marijuana offenses, as well as those who are addicted to, or ‘use’

narcotics drugs, to register with customs officials on leaving and entering the

country.” 420 F.2d 556, 556 (2d Cir. 1970). The Second Circuit held that

knowledge or probability of knowledge of the registration requirement is an

element that must be established in order to be convicted under the statute because

finding that the defendant’s conduct was nonfeasance would render the statute

unconstitutional, but requiring probability of knowledge of the registration

requirement would save it. Id. at 557–58. Thus, the Second Circuit read into the

statute the element of probability of knowledge, finding that the defendant did not

have probability of knowledge of the registration requirement, and therefore, could

not be convicted under the statute. Id. at 558. Duran similarly argues that the

element of knowledge or probability of knowledge of the notification requirement

cannot be separated from § 951. However, the Mancuso decision is only

persuasive authority in this Circuit, and our Court already decided in Campa that

knowledge of the registration requirement is not an element of § 951.

Additionally, § 951 requires misfeasance, which was not required under the statute

18
at issue in Mancuso. Thus, unlike the registration requirements in Lambert and

2

Mancuso, which were based on the defendant’s status as a convicted felon or

narcotics violator, conviction under § 951 involves affirmative action or conduct

on behalf of a foreign government, and Duran is deemed to have notice.

Duran argues that in order to have sufficient notice of the notification

requirement, his conduct must also have necessarily involved an intent to engage in

espionage or traditional notions of spying and subversive activity. He argues that

his purportedly innocent conduct could not have given him the probability of

knowledge of the registration requirement. Duran relies on the legislative history

of § 951 and argues that all of the cases that involve criminal prosecution under §

951 relate to some form of subversive activity or espionage-related component.

However, there is no suggestion in the language of the statute, the legislative

history, or cases that convictions under § 951 require the conduct to be of that

nature. To the contrary, the activities that fall within § 951’s purview have never

been expressly or by judicial interpretation limited to those bearing upon national

security or even those which by their nature are criminal or inherently wrongful.

 While in some areas the distinction between nonfeasance and misfeasance may not be 2

clear, this is not an issue for this case. Status is not the issue in any sense, rather specific actions

are at issue. Further, if there were any such confusion, the area of foreign intelligence activities

is one which is highly regulated and a notification or registration requirement normally would

not be unexpected by one who acts as an intermediary for a foreign government. 

19
See Latchin, 554 F.3d at 715 (uncertain acts of “some kind” were sufficient to

establish guilt under § 951 (emphasis in original)); Dumeisi, 424 F.3d at 581

(transmitting publicly available information was sufficient). In fact, the Northern

3

District of Illinois found that § 951 is not unconstitutional, even though it requires

registration when no future criminal activity is anticipated. United States v.

Melekh, 193 F. Supp. 586, 592 (N.D. Ill. 1961).

Relying on legislative history, Duran asserts that his failure to have

anticipated the statute’s registration requirement stemmed from the fact that his

conduct did not involve espionage or traditional spying on the United States

government, what he categorizes as the primary focus of § 951. “When the text of

a statute is plain, however, we need not concern ourselves with contrary intent or

purpose revealed by the legislative history.” Hunt, 526 F.3d at 744. Duran

contends that for over ninety years, the only application of § 951 has been to

prosecute cases dealing with espionage or subversive activities against the United

States. However, the plain language of § 951 does not exclude from its scope

cases that do not involve such subversive activities. “Congress is free to pass laws

with language covering areas well beyond the particular crisis du jour that initially

 Although these cases involved agents of a foreign government acting for espionage- 3

related purposes and goals, the conduct for which the agents were convicted under § 951 did not

involve illegal activity or traditional subversive conduct. 

20
prompted legislative action.” Id.

Although Congress’ original intent in 1917 was national security, defense,

and targeting espionage and subversive acts, over time, the original 1917 Act

4

broke off into three directions to form three separate registration or notification

statutes dealing with agents of foreign governments. Congress enacted legislation

targeted specifically at such subversive acts through the Foreign Agents

Registration Act of 1938 (“FARA”) and 50 U.S.C. § 851, and Congress separated

5 6

 The earliest form of § 951 was enacted on June 15, 1917, shortly after the United States 4

entered World War I. It was part of “An Act To punish acts of interference with the foreign

relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and

better to enforce the criminal laws of the United States, and for other purposes.” Act of June 15,

1917, ch. 30, 40 Stat. 217 (codified as amended at 18 U.S.C. § 951 (1948)). In fact, the

predecessor to § 951 is found in Title VIII, § 3 entitled: “Disturbance of foreign relations.” Id. at

226. Legislative history suggests that the 1917 Act was a war-time act to protect the United

States from subversive elements that could threaten America’s war effort. This is because, in its

Congressional Reports, Congress labeled the act, “To Punish Espionage and Enforce the

Criminal Laws of the United States,” H.R. Rep. No. 65-30, at 1 (1917), and “Espionage Bill,”

H.R. Rep. No. 65-65, at 1 (1917) (Conf. Rep.); H.R. Rep. No. 65-69, at 1 (1917) (Conf. Rep.). 

 FARA, 22 U.S.C. § 611 et seq., is primarily aimed at foreign political propagandists and 5

political activists that the United States has an interest in keeping track of, and it requires agents

of foreign principals to identify themselves and their foreign principals, disclose their activities,

and file and label political propaganda. FARA’s registration provision states in pertinent part,

“No person shall act as an agent of a foreign principal unless he has filed with the Attorney

General a true and complete registration statement . . . unless he is exempt from registration.” 22

U.S.C. § 612(a). Thus, this is one example of a statutory registration requirement enacted after

the 1917 Act that specifically covers “agents of foreign principals” as defined under 22 U.S.C. §

611(c). 

 On August 1, 1956, Congress enacted 50 U.S.C. § 851 “Registration of certain persons; 6

filing statement; regulations” under Title 50 “War and National Defense,” Chapter 23 “Internal

Security,” Subchapter V “Registration of Certain Persons Trained in Foreign Espionage

Systems.” Section 851 states in pertinent part that,

[E]very person who has knowledge of, or has received instruction or assignment

21
§ 951, classifying it under “Foreign Relations.” The limited legislative history

persuasively suggests that Congress chose to separate § 951 and treat it as a catchall statute that would cover all conduct taken on behalf of a foreign government.

7

Thus, Duran’s argument that he could not have had notice of the registration

requirement under § 951 is meritless because registration is not only required of

spies or foreign agents engaged in subversive acts under FARA or § 851, but it

also reaches beyond such classifications to any affirmative conduct undertaken as

an agent of a foreign government. Additionally, 28 C.F.R. § 73.6 states that “[t]he

filing of a notification under [§ 951] shall not be deemed compliance with the

requirements of the Foreign Agents Registration Act of 1938, as amended, 22

in, the espionage, counter-espionage, or sabotage service or tactics of a

government of a foreign country or of a foreign political party, shall register with

the Attorney General by filing with the Attorney General a registration statement

in duplicate, under oath, prepared and filed in a such manner and form, and

containing such statements, information, or documents pertinent to the purposes

and objectives of this subchapter as the Attorney General, having due regard for

the national security and the public interest, by regulations prescribes. 

Thus, § 851 is an espionage registration statute, while § 951 is a broader, catch-all notification

statute aimed at all foreign relations in general. 

 On March 28, 1940, the 1917 version of § 951 was amended and codified under Title 22 7

“Foreign Relations and Intercourse” Section 601 “Acting as a foreign governmental agent

without notice to Secretary of State.” 22 U.S.C. § 601 was codified under the same subchapter

as FARA. Act of March 28, 1940, ch. 72, § 6, 54 Stat. 79, 80 (codified at 22 U.S.C. § 601). 

Then, in 1948, 22 U.S.C. § 601 was repealed and re-codified under 18 U.S.C. § 951 “Agents of

foreign governments” under Chapter 45 “Foreign Relations.” Thus, it became a completely

separate notification statute from FARA, and it continues to cover any action of conduct by an

agent of a foreign government. 

22
U.S.C. § 611 et seq., nor compliance with any other statute.”

The Government is vested with sound discretion in determining who to

prosecute and under what laws to prosecute. Here, the Government exercised its

prosecutorial discretion to convict Duran for violating § 951, which permits

prosecution so long as Duran acted on behalf of a foreign government and failed to

notify the Attorney General of such action, regardless of the nature of such action.

8

The broad sweep of § 951 creates a plethora of possibilities under which

those engaged in purportedly legal conduct on behalf of a foreign government

could be convicted if an agent of a foreign government fails to notify the Attorney

General of such conduct. Here, it is hard to imagine that Duran was acting

completely innocently because his actions generally involved bribery and

extortion, even if not violations of United States law. Section 951 sweeps broadly

because the Government has an interest in knowing the identity of those acting on

behalf of a foreign government within the United States, whether the action is legal

or not. By its plain text, the statute placed Duran on notice that his conduct was

unlawful.

Section 951 is not unconstitutionally vague as applied to Duran. The jury

 It is therefore understandable why the district court excluded evidence regarding the 8

foreign policy between the United States and Venezuela because such evidence is irrelevant and

has no relation to the elements of §§ 951 or 371 or to the exercise of the Government’s

prosecutorial discretion. 

23
determined that Duran acted to convince Antonini to sign a power of attorney and

delivered false documents to Antonini; that his action was on behalf of the

Venezuelan government; and that Duran failed to notify the Attorney General of

such action before acting. This Court has already determined that § 951 is a

general intent crime, and Duran did not need to know of the notification

requirement before acting. Section 951 covers any and all affirmative conduct

taken on behalf of a foreign government, and is not limited to espionage or

subversive activities. The case for upholding Duran’s conviction under § 951 is

particularly strong because the language is readily understandable by a person of

ordinary intelligence, his conduct involved some form of bribery or extortion on

behalf of the Venezuelan government, and Duran’s conviction was not based on

mere status as an agent of the Venezuelan government.

9

B. Evidentiary Issues

We review evidentiary rulings for an abuse of discretion. Eckhardt, 466

F.3d at 946 (citing United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir.

2005)).

1. Evidence of Knowledge of the Notification Requirement under §

951 Was Properly Excluded

 Because Duran’s conduct was not innocent, we need not in this case express an opinion 9

as to the constitutionality of possible applications of § 951 to completely innocent conduct. 

24
Duran argues that the district court abused its discretion in excluding

evidence of mens rea to show that Duran and his co-conspirators did not know of

the notification requirement under § 951. As discussed in § A supra, this Court in

Campa held that a defendant need not know of the notification requirement under §

951 in order to be convicted. 529 F.3d at 999. “For a conviction of conspiracy,

there must be proof of (1) an agreement between two or more persons, (2) an

unlawful purpose, and (3) an overt act committed by one of the coconspirators in

furtherance of the conspiracy.” United States v. Wieschenberg, 604 F.2d 326, 331

(5th Cir. 1979). “In addition, ‘in order to sustain a judgment of conviction on a

10

charge of conspiracy to violate a federal statute, the Government must prove at

least the degree of criminal intent necessary for the substantive offense itself.’” Id.

(quoting United States v. Feola, 420 U.S. 671, 686 (1975)). Thus, the Government

had to prove that Duran knowingly acted as an agent of a foreign government

without first notifying the Attorney General, and that his co-conspirators knew that

he acted as such.

Duran argues that because conspiracy and aiding and abetting require

willfulness, they import a higher mens rea into the substantive charge under § 951,

 In Bonner v. City of Prichard, this Court adopted as binding precedent all decisions of 10

the former Fifth Circuit handed down prior to October 1, 1981. 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc). 

25
and thus, evidence of Duran’s averred lack of knowledge of the registration

requirement is relevant. Although conspiracy is a specific intent crime, and aiding

and abetting of a substantive violation must be willfully undertaken, those theories

of vicarious liability do not import into either the conspiracy charge or the

substantive offense under § 951 that Duran be on actual notice of the registration

requirement. See Feola, 420 U.S. at 686–87. Feola reiterates the longstanding and

uniformly recognized rule that the conspiracy statute does not impose its scienter

requirement upon the general intent offense that is the object of the conspiracy.

Id.; see also United States v. Muncy, 526 F.2d 1261, 1264 (5th Cir. 1976) (citing

Ingram v. United States, 360 U.S. 672, 678 (1959)).

The district court did not abuse its discretion in excluding evidence of Duran

and his co-conspirators’ lack of knowledge of the registration requirement under §

951 because this Court’s precedent makes clear that knowledge of the registration

requirement is not an element of the offense under § 951. Campa, 529 F.3d at 999.

2. Evidence of State of Mind Exception to the Hearsay Rule Was

Properly Excluded

Duran argues that the district court abused its discretion in excluding

admissible hearsay evidence under the Federal Rule of Evidence 803(3) state of

mind hearsay exception proffered by Duran to show that he did not intend to act as

an agent of the Venezuelan government. Rule 803(3) provides that regardless of

26
whether the declarant is unavailable as a witness, the hearsay rule does not

exclude:

A statement of the declarant’s then existing state of mind, emotion,

sensation, or physical condition (such as intent, plan, motive, design, mental

feeling, pain, and bodily health), but not including a statement of memory or

belief to prove the fact remembered or believed.

The Supreme Court held that out-of-court statements admitted into court to

establish intent are admissible. Mutual Life Ins. Co. of N.Y. v. Hillmon, 145 U.S.

285, 295 (1892). “[T]he state-of-mind exception does not permit the witness to

relate any of the declarant’s statements as to why he held the particular state of

mind, or what he might have believed that would have induced the state of mind.”

United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir. 1980).

Duran argues that several hearsay statements should not have been excluded

under Rule 803(3) because they tended to prove that Duran did not intend to act as

an agent of the DISIP. The Government argues that the district court never

reached the question of whether the contested testimony lay outside the permissible

scope of Rule 803(3); rather, the court’s rulings were based upon its finding that

the testimony was irrelevant and excludable under Rule 401. That Duran told a

United States customs agent that he was in the United States to meet with

Antonini, while he was carrying newspaper articles related to the Antonini matter

was properly excluded because it did not meet Rule 401’s test for relevancy, while

27
statements concerning Venoco’s future did not fall within the state of mind

exception because they explain why Duran had a concerned state of mind.

Further, the final statement, that Duran told Maionica “I’m never bringing

[Antonini] that money,” was arguably relevant but not particularly probative. D.E.

409 at 4. While Duran argues that his statement was a clear expression of intent

used to show Duran was not acting as an agent of the DISIP, the Government

correctly argues that Duran’s proclaimed intent to deprive Antonini of his $2

million bribe provides no insight as to whether Duran had, over the preceding four

months, acted as Venezuela’s agent. Additionally, the Government correctly

argues that Duran’s acknowledgment that the DISIP was going to entrust him with

$2 million in cash strongly suggests that he was, in fact, Venezuela’s trusted

representative. The admissibility of Duran’s statement that he did not intend to

deliver the money to Antonini for the purpose of showing that Duran did not intend

to act as an agent of the DISIP was a close call under Rule 803(3), and the

exclusion of the statement, if error, was harmless.

3. The Rule 404(b) Evidence Was Properly Admitted

Duran argues that the district court abused its discretion by admitting

evidence of Duran and Kauffmann’s payment of illegal kickbacks to various

Venezuelan government officials to establish his motive and intent to commit the

28
charged crimes under Federal Rule of Evidence 404(b), as well as to counter his

belated claim of entrapment by showing predisposition to commit the crimes.

Under Rule 404(b), evidence of uncharged criminal conduct is admissible

only if relevant to an issue other than the defendant’s character or propensity to

commit a crime. See United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)

(en banc). Rule 404(b) allows for the introduction of evidence of an extrinsic act if

the Government “can demonstrate: (1) a proper purpose for introducing the

evidence; (2) that the prior act occurred and that the defendant was the actor; and

(3) that the probative value of introducing the evidence outweighs any prejudicial

effect the evidence might have.” United States v. Cancelliere, 69 F.3d 1116, 1124

(11th Cir. 1995) (citing United States v. Perez-Garcia, 904 F.2d 1534, 1544 (11th

Cir. 1990)). Duran contends that the evidence of giving kickbacks to the

Venezuelan government and various officials was not properly offered to show

intent or motive, but merely as improper propensity evidence, as reflected in the

prosecutor’s closing argument, in which he referred to Duran’s “life of crime.”

D.E. 422 at 109–10.

The evidence of Duran’s kickbacks was properly admitted by the district

court under Rule 404(b). First, the Government provided a proper purpose for

introducing the evidence because Kauffmann’s testimony showed similar criminal

29
acts by Duran that went to Duran’s intent and motive to knowingly act as an agent

of the DISIP. Second, Kauffmann’s testimony stated that Duran paid kickbacks to

various Venezuelan government officials. See United States v. Dickerson, 248

F.3d 1036, 1047 (11th Cir. 2001) (citing United States v. Bowe, 221 F.3d 1183,

1192 (11th Cir. 2000)) (finding that uncorroborated testimony provided sufficient

basis for concluding that the defendant committed extrinsic acts). Third, the

11

danger of unfair prejudice to Duran was minimal because the Government showed

that the introduction of the kickbacks was probative to establish the relationship

between Duran and the Venezuelan government, and the court instructed the jury

regarding the proper purpose of such evidence. See United States v. Baker, 432

F.3d 1189, 1205 (11th Cir. 2005) (quoting United States v. Meester, 762 F.2d 867,

875 (11th Cir. 1985)) (stating that effectiveness of a limiting instruction should be

part of the court’s analysis in determining admissibility under Rule 404(b)); D.E.

348 at 85–86.

In addition to being admitted under Rule 404(b) for a proper purpose, the

kickback evidence was properly admitted in order for the Government to rebut

Duran’s entrapment defense by establishing Duran’s predisposition to act as an

agent of a foreign government without first notifying the Attorney General.

Duran does not dispute that he gave such kickbacks, only that such evidence should be 11

excluded. 

30
Entrapment requires “government inducement of the crime and a lack of

predisposition by the defendant to commit the crime.” United States v. Ventura,

936 F.2d 1228, 1230 (11th Cir. 1991) (citing Mathews v. United States, 485 U.S.

58, 63 (1988)). After the defendant raises the defense of entrapment, the burden

shifts to the Government to show that the defendant was predisposed to commit the

offense charged beyond a reasonable doubt. Id. (citation omitted). According to

Duran, the kickback evidence was not sufficiently similar to the violation of § 951

or the conspiracy to violate § 951 because Duran’s previous transactions with the

Venezuelan government were not with the DISIP or connected to this case.

However, because similar acts used to demonstrate predisposition are offered

precisely to show propensity, they are more broadly applicable, and their use is not

subject to the normal constraints of evidence admitted pursuant to Rule 404(b).

See United States v. Burkley, 591 F.2d 903, 922 (D.C. Cir. 1978); United States v.

Dickens, 524 F.2d 441, 444 (5th Cir. 1975) (citations omitted).

Essentially, because the defendant puts his character at issue by raising an

entrapment defense, he cannot complain that the Government introduces evidence

as to such character. Sorrells v. United States, 287 U.S. 435, 451 (1932). Finally,

the Government argued that Duran’s previous dealings with the Venezuelan

government were based upon his agreement to “kick back” profits to influential

31
officials. Similarly, Duran’s anticipated benefits in this case were dependent upon

his willingness to extort or bribe Antonini into remaining silent in order to receive

favors from the DISIP or Venezuelan government in the future.

The district court did not abuse its discretion in admitting the Government’s

Rule 404(b) evidence of Duran’s payment of kickbacks to various Venezuelan

government officials because it showed Duran’s intent, motive, and predisposition

to knowingly act as an agent of a foreign government.

C. Any Prosecutorial Misconduct Was Harmless

Duran alleges that the Government engaged in prosecutorial misconduct

during his closing argument by improperly commenting on the Rule 404(b)

evidence, with statements that Duran “spent the last ten years of his life bribing . . .

officials” and that Duran had been involved in a “life of crime.” D.E. 422 at 82,

109–10. We review allegations of prosecutorial misconduct de novo because it is a

mixed question of law and fact. Eckhardt, 466 F.3d at 947. In analyzing

allegations of prosecutorial misconduct, we must assess whether the challenged

comments were improper, and if so, whether they affected the substantial rights of

the defendant. Campa, 529 F.3d at 997 (quoting United States v. Castro, 89 F.3d

1443, 1450 (11th Cir. 1996)). “A defendant’s substantial rights are prejudicially

affected when a reasonable probability arises that, but for the remarks, the outcome

32
of the trial would have been different.” Eckhardt, 466 F.3d at 947 (citing United

States v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998)). “When the record

contains sufficient independent evidence of guilt, any error is harmless.” Id.

(citing United States v. Adams, 74 F.3d 1093, 1097–98 (11th Cir. 1996)).

Although the Government’s comments could be construed by the jury as an

effort to characterize the challenged remarks as improper propensity evidence,

there was more than enough other evidence of guilt beyond a reasonable doubt for

the jury to convict Duran of violating §§ 951 and 371. Because the district court

properly instructed the jury as to the purpose for which Rule 404(b) evidence was

introduced, we find that the prosecutor’s comments did not prejudicially affect

Duran’s substantial rights at his trial, and therefore, any error was harmless.

III. CONCLUSION

We affirm the convictions of Duran under 18 U.S.C. §§ 371 and 951.

Section 951 is not unconstitutionally vague as applied to Duran. The district court

did not abuse its discretion by by excluding evidence of Duran’s lack of knowledge

of the notification requirement under § 951, by excluding Duran’s hearsay

statements, or by admitting the Rule 404(b) evidence of Duran’s kickbacks to

various officials of the Venezuelan government. Finally, although the Government

arguably engaged in prosecutorial misconduct during closing statements, such

33
error was harmless. We therefore affirm Duran’s convictions as to all counts.

AFFIRMED.

34