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United States v. Oz

United States District Court, D. Minnesota

February 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MORAN OZ (2); LACHLAN SCOTT MCCONNELL 6; Defendants.

          Jacqueline Blaesi-Freed, Linda I. Marks, U.S. Department of Justice, Consumer Protection Branch, and Roger J. Gural, U.S. Department of Justice, for the United States of America.

          Joseph S. Friedberg, Joseph S. Friedberg, Chartered, Robert D. Richman, P.O. for Defendant Moran Oz.

          Marie Celine Pacyga and Ryan M. Pacyga, Pacyga and Associates, PA for Defendant Lachlan Scott McConnell.

          ORDER

          SUSAN RICHARD NELSON United States District Judge.

         This matter is before the Court on the Government's Motion in Limine to Exclude Evidence of Duress and Evidence Relating to Paul Le Roux (“Gov't's Mot.”) [Doc. No. 690]. For the reasons set forth below, that Motion is denied.

         I. BACKGROUND

         In response to the Government's Motion, the Court previously ordered that Defendants Moran Oz (“Oz”) and Lachlan Scott McConnell (“McConnell”) participate in a pretrial proffer related to their anticipated duress defenses. (See Order dated 1/4/2017 (“January 4 Order”) [Doc. No. 756].) The Court incorporates that previous order by reference here.

         Oz and McConnell are charged with various offenses related to their alleged involvement in unlawfully distributing prescription drugs over the Internet through an organization known as RX Limited (“RXL”). (Id. at 2.) The Government alleges that the RXL conspiracy, in relevant part, ran from 2004 through 2012. (See Indict. at 7.)

         According to Oz and McConnell, Paul Le Roux (“Le Roux”)-who is not a defendant in this case-is a “billionaire global criminal mastermind” who allegedly ran a multi-faceted international criminal enterprise that included RXL. (January 4 Order at 2.) At a prior hearing in this case, Le Roux admitted to committing the murders of at least six foreign nationals in other countries, trafficking drugs internationally, arming a “private security team” in Somalia, sending arms to the Philippines, and hatching a plan to sell fertilizer, which could be used to make explosives, and chemicals necessary to manufacture methamphetamines. (Id.) In 2014, Le Roux pled guilty in the Southern District of New York to various charges, including: (1) conspiracy to import drugs, (2) exporting prohibited technology to Iran (and, as part of that offense, participating in or causing six murders and soliciting a seventh), (3) computer hacking, (4) assisting an offender by paying a foreign official to impede the offender's extradition to the United States, and (5) offenses related to RXL including misbranding, mail and wire fraud, and conspiracy to commit money laundering. (Id. at 2-3.) Le Roux is awaiting sentencing on these charges. (Id. at 3.)

         Pursuant to the Government's request-and because relevant case law supported it-the Court ordered that Oz and McConnell make pretrial proffers so that it might assess whether each Defendant could support a prima facie case of duress. (Id. at 7-11, 16.) On January 13, 2017, counsel for Oz and McConnell made proffers regarding the evidence they anticipated eliciting at trial in support of their duress defenses. (See Hr'g Tr. dated 1/13/2017 (“Hr'g Tr.”) [Doc. No. 774].) Counsel later supplemented these proffers with additional information. (See Def. Oz's Supplement to Proffer on Duress (“Oz's Supplemental Proffer”) [Doc. No. 773], Def. Oz's Mem. in Supp. of Duress Defense (“Oz's Mem. in Supp.”) at 5-9 [Doc. No. 792], Def. McConnell's Resp. in Supp. of Defendant's Use of Coercion and Duress Evidence at Trial (“McConnell's Resp. in Supp.”) at 2-5 [Doc. No. 794].)

         The Court summarizes the Defendants' proffers below. At this juncture, the Court will not evaluate the credibility of the evidence and the Court will view the evidence in the light most favorable to Defendants.” See United States v. Capozzi, 723 F.3d 720, 725 (6th Cir. 2013) (“To establish a prima facie case, the defendant must present some evidence that could support each [element of duress].” (emphasis added)); United States v. Bailey, 444 U.S. 394, 415 (1980) (“[P]recisely because a defendant is entitled to have the credibility of his testimony, or that of witnesses called on his behalf, judged by the jury, it is essential that the testimony given or proffered meet a minimum standard as to each element of the defense so that, if a jury finds it to be true, it would support an affirmative defense-here that of duress or necessity.” (emphasis added)).

         A. Oz and Le Roux

         Oz, an Israeli citizen, joined an internet pharmacy company based in and incorporated under the laws of Israel in 2005. (Hr'g Tr. at 6-7.) This company was not immediately identifiable as part of RXL and appeared to Oz to be a legitimate, legal enterprise like many other online pharmacies he was familiar with in Israeli and elsewhere. (Hr'g Tr. at 6-7.) Oz's job was to manage call centers and direct the logistics of delivering prescription drugs purchased through websites. (Hr'g Tr. at 6-7.) Oz was initially unaware of Le Roux's involvement with this company. (Hr'g Tr. at 7.)

         In 2008, Le Roux invited Oz to the Philippines on multiple occasions. (Hr'g Tr. at 8.) During these meetings, Le Roux complimented Oz on his performance and explained more about Le Roux's role in RXL (i.e., he was the owner/boss of the company and its many affiliates), the structure of RXL, the Israeli company's status as an affiliate of RXL, and why RXL was based out of the Philippines (e.g., cheaper labor and lower taxes). (Hr'g Tr. at 8-9.) Nothing in these meetings suggested that RXL was an illegitimate company or that Le Roux was a dangerous individual. (See Hr'g Tr. at 8-9.)

         In early 2009, Le Roux again summoned Oz to the Philippines-ostensibly to discuss relocating the Israeli affiliate to the Philippines. (Hr'g Tr. at 9.) Le Roux had Oz board a boat under the guise of going to check out a potential location on another island. (Id. at 9-10.) On this boat were three individuals Le Roux described as his “Brazilian business partners.” (Id.) However, once the boat was in open water, these three individuals threw Oz into the ocean. (Id. at 10.) The boat turned back and began to circle Oz while one of the Brazilians pointed a gun at him and another accused him of being disloyal to Le Roux, stealing from the company, and operating a competing online pharmacy. (Id. at 10-11.) The Brazilian holding the gun would occasionally shoot into the water close to Oz. (Id. at 11.)

         Oz denied the Brazilians' accusations and could hear and see them communicating with Le Roux via a cellphone. (Id. at 11.) The Brazilians then offered Oz a “choice”- he could confess to being disloyal and he would be shot to death, or he could continue to deny it, in which case he would be shot, but merely wounded, and left for the sharks. (Id.) Oz continued to deny any disloyalty, at which point the Brazilians suggested to Le Roux that he might be telling the truth. (Id.) Oz was then hauled back onto the boat, tranquilized, and kept onboard for approximately another day. (Id.) As the boat approached the shore, one of Le Roux's associates, Dave Smith, told Oz that Le Roux's organization “is like an octopus” with “tentacles all over the world” that could reach Oz or his family anywhere and punish them if Oz were disloyal to Le Roux. (Id. at 12.)

         Back on shore, Le Roux picked up Oz and “apologized” for what had just happened. (Id.) However, he reiterated that he would not tolerate any disloyalty from Oz and expected Oz to do as he was told. (Id.) Le Roux also explained that the internet pharmacy business was his “bread and butter” and thus it was critical that it “work efficiently” and Oz had better not give Le Roux reason to doubt him. (Id. at 12-13.) Oz now believes that Le Roux became suspicious because Oz spoke with an Israeli associate, Levi Kugel, about buying a “brick-and-mortar” pharmacy which they would then use to fill prescriptions for RXL. (Id. at 13.) Oz believes Kugel reported this conversation to Le Roux, demonstrating that Le Roux had a wide-reaching network of informants that included some working in Israel. (Id.)

         Oz immediately fled the Philippines and returned to Israel. (Id. at 13-14.) Another associate of his told Oz not to contact the Filipino police about what had happened because Le Roux “owned” that police force. (Id. at 14.) This comported with statements Le Roux made earlier to Oz about how he had a “very friendly relationship” with the police in the Philippines. (Id. at 15.) Oz believed he could not tell Israeli authorities about what had happened because no crime had been committed in Israel. (Id. at 16.) Moreover, Oz was now “petrified” of Le Roux and believed that Le Roux was capable of harming him and his family in Israel by employing Le Roux's connections with certain Israeli “gangsters.” (Id.)

         Over the next several months, Oz continued to “stay loyal” to Le Roux by operating the logistics center in Israel. (Id.) However, Oz did try and protect himself by installing a security system in his home, buying weapons, and changing up his daily routines. (Id.) He also hired a private investigator, but this investigator advised him that he “couldn't be protected.” (Id.)

         For the next several years, there was a “constant flow” of Le Roux's associates coming to Israel and monitoring the activities of Oz and others at the Israeli company. (Id. at 16-17.) Although these “henchmen” were not always present, they appeared “intermittently.” (Id.) Oz also learned that Le Roux had a “partner”-Ben Menashe- who was allegedly part of Israel's intelligence services. (Id. at 17-18.) Menashe would appear from time to time at the company and was a “frightening” “ghost-like” figure. (Id.) In fact, Kugel allegedly told Oz that he had paid a considerable sum of money to Menashe on Le Roux's behalf in an attempt to get Le Roux a diplomatic passport. (Id. at 18.) However, Menashe stole the money instead and Kugel fled the country because he believed Le Roux would hold him responsible and kill him. (Id.) In 2009, Le Roux also called Oz and told him that if another associate-Alon Berkman, who is a Defendant in this case-did not answer Le Roux's calls, Le Roux would cut off Berkman's hands and tongue. (Id. at 20.)

         Oz is similarly prepared to testify that after the 2009 incident in the Philippines and continuing through 2012, he heard many other accounts of Le Roux's ruthlessness, paranoia, and seemingly substantial connections with various government agencies and criminal organizations around the world.[1] (See Hr'g Tr. at 20-26, 29-30.) Moreover, Le Roux repeatedly “reminded” Oz that if Oz did not do as Le Roux instructed, tried to leave Le Roux's employ, or if he were otherwise disloyal, Oz would be “going back in the water.” (Id. at 25.) Even when Le Roux seemingly “disappeared” for a time in 2011, his henchmen were present in Israel and/or regularly called Oz and others to remind them to continue doing as Le Roux had ordered. (Id. at 26.)

         In 2012, Le Roux contacted Oz and suggested that they meet so that he could give Oz money to pay the employees of the Israeli logistics company.[2] (Id. at 28.) Oz was “feeling pressure” to meet with Le Roux so that Oz's employees could be paid. (Id.) Oz agreed to meet Le Roux, but suggested Romania as a location. (Id.) Oz suggested this location because he had a contact who would arrange for bodyguards to accompany Oz to the meeting. (Id.) Oz in fact hired the bodyguards, who escorted him to the meeting location, where Oz was ultimately arrested by Romanian authorities and extradited to the United States. (See id.)

         During the proffer, counsel for Oz stressed that at no time did he believe the work he was doing was illegal. (Id. at 28-29.) However, he wanted to leave the company after the 2009 incident in the Philippines. (Id. at 29.) Oz continued working for Le Roux only because he believed that ...


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