Petition 172k - Exoneración judicial

8/14/2019 Petition 172k - Exoneracin judicial

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Case 3:07-cv-02590-PJH Document 68-7 Filed 04/13/2009 Page21 of 33All redactions made on this page pursuant toexemptions (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(F)

: : .RADUCCION

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1 File: No. 557.139.-4Accused:Offense: Illegal enrichment P9-1 All redactions made on this

page pursuant to exemptions(b)(6), (b)(7)(A), (b)(7)(C),

(b)(7)(F)

REPUBLICOF COLOMBIA

GENERAL ATTORNEY'S O FFICE

FOURTH SPECIALIZED PROSECUTORS OFFICEOF CALI

Interlocutory Resolution No.164

Santiago de Cali, September Sixteen (16) Two Thousa nd and Five (2005)

SUBJECT MATTER

This office is engaged on deciding the legal basis to enforce what is set forth on

art 327 of the Penal Code of Procedures issuing an inhibitory writ withinthe

preliminary inquiry herein carriedout against

|, for a presumptive unlawful conduct againstthe social economic

order.

S U M M A RYOF FACTS AND PROCEDURES

2) It w as Mr. himself, who in |

| , requested the Sectional Prosecutor's Officeto determine if

the f i r m ^ ^ ^ ^ ^ ^ ^ H COMISIONISTA DE BOLSA (stock broker firm) had

links with organizations dedicated to the traffic of ESTUPEFACIENTES , given its

inclusion in the so called "Clinton List" by the Treasury Department of the United

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Case 3:07-cv-02590-PJH Document 68-7 File w he re th e co mp an y

and its partners, who in turn are partners

of a company that is a pa rtner o f ^ ^ ^ ^ ^ ^ ^ H is underscored (lines 4 to 14).

A copy is attached of the leasing agreement with purchase option dated August

13, 2001 between ' ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ | ^ B " ' professionals in

purchase-sale of foreign currency, represented byI

as the LEASING PARTY and ^ ^ ^ ^ ^ ^ ^ ^ H representedby

I, as LEASE E (lines 15 to 24 and 25 to 28).

A co py is attached of a rescission agreem ent of the dation in payment of shares,

dated February 14, 2003, entered into by

| , representing

I, and the trust estates ^ ^ ^ H J ^ ^ H H and I

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P9-3TR U ST m ana ged by Fiduciaria Alianza S.A. On one part, and by

|on the other, by means of which the rights of the latter

are rescinded (lines 29 to 30 and 31 tos shareholders o

36).

The above gives grounds to assign the writ to a specialized Prosecutor (Fiscal

Esp ecializado), and on April 14 of 2003 the fourth office arranges for theproce dure of prior inquiry and to comm ission the CTI to determ ine: the partners

o f ^ m ^ ^ H ^ ^ H ' , the legal representation registered at the Chamber of

Commerce and at the Superintendence of Industry and Trade, the economic

profile to establish if

the firm, and because of this they are also requested to determine their

background (line 37).

On February 19, 2004, it is arranged to hear the account of the partners of

I, of its legal representative

(line 41).

thOn February 26, 2004, the undersigning takes over as deputy of the4

specialized office.

Trsniuao ru e luwrni^ie OticiaILJc Alia JusnciA^^Bde Juaio2

de 1981

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4File: No. 557.139.-4Accused: {Offense: Illegal enrichment

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P9-4Expert's opinion 4 30 00 -6^ 43 3 wa s rendered by a judicial expert from CTI who

acted as a judicial accountant expert; it concluded that there was a capital

increase of m ^ m between 1993 and 1994 pursuant to the income

statements of H ^ B H ^ H L

capital increase of ^ | ^ ^ ^ B w a s found pursuant to the financial

statements certified for that period that had to be justified; therefore the capital

increase to be explained amounted to ^ ^ ^ ^ ^ ^ ^ M lines 44 to 6 0).

The Report stated that the Specialized Prosecutor's Office No.9 UNAM from

Bogota was investigating

I for asset laundering,

It was arranged to summon Mr.

present his deposition on

61 and 67).

Th e Specialized Prosecutor's Office 9 UNAIM reports that they had not done an

investigation against ^ H ^ B ^ ^ ^ H H ^ H H I H H I ^ I ^ H I i l ^ ^ ^ lbut upon consulting the system it w as

established that National Unity Against Asset Laundering -UN CLA- of Bogota,

within file ^ | investigated and accused ^ B ^ H ^ ^ ^ ^ I H ^ Ion

I(Line 70).

iT 'J>.-jiluc/or-J -i." Intcrpreie 'JiiruJ002227de 1ZS7


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5File: No. 557.139.-4Accused:O ffense: Illegal enrichment

IEROpg-5

Specialized Prosecutor's Office 9 from UNCLA reports that it investigated against

because of certified true copies from file 095

L.A. carried out by the same agency against the extinct ^ ^ m | ^ ^ ^ m |

who, through his money exchange office SERVICHEQUES with see

in Calf, received considerable amounts of money from several accounts

throughout the national territory whose origin was the proceeds of illegal drug

dealing - ^ ^ ^ ^ H I H ^ ^ ^ ^ ^ H i -T h a t a g a i n s t]an accusation was pronounced that was appealed at the

this decision also affected:!

accomplice) . Lines

72 to 73).

A certificate of the chamber of commerce for

I is entered into record , wh ereby by means pu blic

deed No 1511 of April21, 2003, of Notary sixth of Cali registered at the chamber

on April 25, 2003 the partnership was declared to be dissolved and in a state of

liquidation, | H ^ ^ ^ ^ H H H H ^ I ^ I ^ Hw a s aPP ointed tn e principal

liquidator,and H ^ ^ ^ ^ H H ^ ^ ^ H H I ^ ^ ^ Has nis al ternate- t n e

Oficia'c Junio

Tntductora e J/irILJc. Min Justicia

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6File: No.Accused:Offense: Illegal enrichment pg-6external auditing would be done by BKR FERNANDEZ & ASOCIADOS

INTERNATIONAL LIMITADA (lines 78 to 79).

The deense counse for Mr. m m m i m enered

into record documentation that he was going to forward to the judicial accountant

expert for his analysis and for the opinion extension. (Line 80).

Mr. | | ^ H | ^ | | [ | ^ H ^ H i m ^ m in his version states that herequested the sectional director of the Prosecutor's offices in Cali to investigate

the firm he represents in relation to its illegal and unfair inclusion on the

Clinton List to demonstrate the complete AMENIDAD both of the partnership and

himself of any criminal deed. That since it was established in ^ | ^ | ^ ^ | ( t e n

years) the partnership had the same shareholders; in that year Dr.

established two trusts in l ^ ^ ^ ^ ^ ^ ^ ^ m placing

the shares of his family g r o u p ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ 1 and his own

shares in the name of t h ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ V T RU S T S which have as

beneficiaries h i s i m m and thus the new shareholder composition is

as follows: 1. ^ | ^ ^ | ^ | ^ ^ H H ^ B 3. ^^^ ^^^ ^^^ ^^^ ^^^ ^^H

~^^^^"" 4. j ^ ^ H H ^ ^ H ^ ^ H and 5.HIHHIIn the year of 2001, the shares of the first two are

sold by ^ | | H H ^ | H ^ ^ H | ^ | ^ | ^ |w ' th authorization the

Superintendence of Securities of and under its surveillance since they did not

have any legal issue, and H were purchased by

v TraLtuflora ? Imerarert Ofinial


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7File:Accused:Offense: Illegal enrichment

/ho worked at

since August 5, 1991 and the remaining

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That pursuant to Resolution No. 08 of the year 2000 issued by the Banco de la

Republics (Central Bank of Colombia), the stock broker firms received approval

to operate in the exchange market to increase controls on asset laundering.

Since the foreign currency that came into the country through drafts made by

Colombians from abroad constituted the second most important item, it became

an interesting business that attracted many, and therefore from the second

semester of the year 2000 people came to offer to work in a partnership in order

to be able to participate in the exchange business, in some cases a pre

agreement was reached, but because of the delay of the Superintendence of

Securities the prospective partners declined their intent to become partners.

Tow ards the m iddle of 200 1, acting as legal representative of

the partners of ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ H w h i c h at that time was an

authorized money exchange office under surveillance of the superintendence of

banks, requested to become a partner because although they were authorized to

work in the exchange market, they had to increase their capital by $3,500 million

to be able to continue to operate, therefore after several conversations with f/^^

whom Iknew f romj j^^^^Jand ^ ^ ^ J ^ ^ ^ ^ ^ J t h e

legal representative from ^ ^ ^ ^ ^ H ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ l an agreement

was reached w h e r e b y ^ ^ ^ ^ ^ ^ ^ H would lease all of their assets in such a

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i-.~~ or> ~ * oo

SFile: No.Accused:Offense: Illegal enrichmentmanner that

pursuant to exemptions (b)(6), (b)(7)(A)(b)(7)(C), (b)(7)(F)

;ould go into the marketand |

continue w ith the business within this strategic alliance, all according to

the legal requirements. As of2001 ^ H f l ^ ^ ^ ^ H j j ^ J ^ ^ U ^ Hc e a s e sto operate. In October of that same year, approval was requested from the

Superintendence of Securities for the partners ofl

to become partners of ^ H | ^ ^ ^ ^ | therefore they were investigated and

approved as partners in October 2002, and the shareholder composition

became:

I ( 1 3 .2 8 % ) ^ ^ ^ ^ ^ ^ ^ ^ B ^ ^ ^ ^ B 1 2- 6 % ) I

(14.66%),

(13.80%), so that 69% of the shares went to the extinct money

exchange office and31 % to the traditional (shareholders) from

T hat on t h e ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ H months after having received the first

authorization from the Superintendence of securities and 4 months after having

joined as partners with the authorization of the Superintendence of Securities,

the Treasury Department of the USA included fl|^^|^^^^^^^H|^^|

and some of its partners in the Clinton List and o n ^ ^ ^ ^ ^ | ^ ^ | t h e y also

i n c l u d e d ^ ^ ^ ^ ^ ^ ^ Hon the list because among its partners it had partners

who were partners f ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ | w ' t n t n e consequence of

not being able to perform their corporate purpose, which led to a cease of

activities , about which the Superintendent of Securities and the Stock Exchange

were notified.

trial'c

Juiiio

t'raiiuciora c jiii'

Lie MJn Jwflift;i... .

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P9-9

T hat on ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ H days after the inclusionin the Clinton list)a

rescission agreement was executed among the former partners of

|and the new partners - the ones coming from]

|, that b rought eve rything back to October of the year 200 2, and thus

the former partners recovered their share percentage in the Stock Brokerfirm.

Since the corporate purpose could not be carried out, in April 2003 they voteda

compulsory wind up, and in ^ H ^ ^ ^ ^ Bt n e

names of the partners of

were included in the Clinton List, so they did not only wantto

dam age th e firm but also with him and his family (lines 83 to 89).

Report No. was entered into record, according to which

presen ted cap ital increases explained by the appraisement

of its investments and fixed assets during the period ^ ^ ^ ^ ^ g a ndof

$66,000,000 and $2,720,500,000 for theperiod ^ ^ ^ ^ H as a product of the

subscription of shares and the merger with the partnership

|(Lines 90 to 98).

RECITALS OF THE OFFICE:

Article 322 of the Penal Procedure C ode establishes the objectives fora prior

inquiry as follows: "In case of doubt about the legal basis to bring forth a pre trial

hearing, the objective of the prior inquiry shall be to establishif the conduct that

\ Traductiim c Jnt,Uc. I'Ain Justicia


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10File: No.

Accused:

Offense: Illegal enrichment P9-10has become known to the authorities by whatever means has taken place,

if it is described in the penal law as sanctionable, if the actions taken have

been performed without responsibility,if it fulfils the requirement of being

triable to bring forth a criminal action, and to collect the necessary evidence

to be able to achieve individuaiization or identification of the authors or

participator of the sanctionable condu ct", (boldnot in text)

Article327 of the Penal Law Code sets forth that a writof waiver shallbe issued

when the conduct under investigation has not existed, or if it is found to be

atypical , that the criminal action can not be brought forth or that a motive of

absence of responsibilityis demonstrated.

In this case, the prior investigation occurs becauseit is the same person heard,

th e one who requests an

investigation of whether he or the company he represents, has links ori

connections with illegal drug dealing, given the inclusion of

land its partners in the well known "Clinton List" that

pretends to disqualify natural or juridical persons that have any relationship with

dealings in illegal drug dealing.

Among the people in the list is Mrs. H J ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ H who was a

partner of ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ |and who had legal, juridical

connections with ^ ^ ^ ^ ^ ^ ^ ^ ^ | under the supervision, control and

002233 \ I'raduclonl-Lie MSn Juntjcnsi \


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Case 3:07-cv-02590-PJH Document 68-7 Fiie< All redactions made on this pagepursuant to exemptions (b)(6), (b)(7)(A(b)(7)(C), (b)(7)(F)1 File:No.Accused:

Offense: Illegal enrichment P9-11authorization of the Superintendence of Securities and the Stock Exchange.The

woman was investigated for money laundering, the same as others, by the

Specialized Prosecutor's office of the National Unitfor Money Launderingof

Bogota - UNCLA-for activities performed through SERVICHEQUE S.A. with

venue in Cali, who were charged with an indictment that was the objectof an

appeal at the Supreme Court of Bogota, and there is no knowledge about such

recourse has been resolved.

There is no knowledge that H l ^ m i ^ ^ H H I ^ H H ^ I I H or tnat tne

entity he represents fl^^^|^^^H^^^^H^^HJj^^B nas been

investigated for offenses related to illegal drug dealing or asset laundering.The

decision to insert this firm or its partners was a unilateral action taken by the

North American Government, throughthe Treasury Department, but not

referenced or related to a decision of any judicial court w hatsoever.

This prior inquiry brought forth against

[, because of his petition to be investigated as was

indicated above, motivates an economic study that in an initial report establishes

capital differences to be justified fo r the period | ^ ^ ^ | The time that has

elapsed since then, over ten years, is enough to declare the prescription of the

penal ac tion, which m otivates the inhibition of the opening of thetrial, taking into

account that it is a cause to impede the commencement of the penal action.

However, the reason for the inhibitionis a different one, that of absolute non

002234"^ Thstiucraat Interpret*: Otjcial

JLic. Jblin JtitsMftt ri ?J rf.->


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Case 3:07-cv-02590-PJH Document 68-7 Filec12Fi!e:Accused:Offense: Illegal enrichment P9-12specificity (atypicity), taking into account, that even thoughthe grounds for the

inhibitionis a different one, thatof absolute atipicity, taking into account thatthe

extension of the accounting report states that the capital increasefor the period

of H | j ^ | ' s justified because of an appraisement not taken into account in .

the initial report.

A similar situation occurs withthe capital difference to be justified duringthe

period of ^ H ^ H | determined by the first accounting reportofthe

judicialexpert from CTI, because in an extension to the report, taking into accountthe

documents furnished by the defense, the increase is completely justified with

appraisements and with the subscription of shares, reversed later on by means

of a rescission, because of the impossibilityto make the strategic alliance that

pretended to bring in profits both t o ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ H ( which

to be able to continue to operate had to increase its capital) and to

which enabled it in turn to make it possible for it to come

into the market, having,to do so, legal authorization from the Superintendence

of Securities and the stock exchange, which means that the former,or some of

its partners, did not have any estoppels whatsoever, and were not under

investigation then, even if they were investigated later - fl^HHH^HH

and others- but due to their activity in another partnership

with venue in Cali. Surely, this background was what

madeHHand the partnership ^ ^ ^ | ^ ^ H ^ ^ | ^ | ^ H | ^ | where | ^

appears to e a partner, be included; and when the latter becomes a partner to

002235

\ Th-.d'u. JLJC ttein Jastias

liLJi/ile funiul


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Case 3:07-cv-02590-PJH Document 68-8 Fil13File:

Accused:Offense: Illegal enrichment pg.13OBURSATILES, it brings it along with the inauspicious consequence that did

away the business purpose and that led to its dissolution and liquidation.

it is argued then, that the only possible decision is that of an inhibition of the

opening of the pre-trial, and the decision shall be made in that sense.

The former are sufficient reasons for the undersigning DEPUTY SPEC IALIZED

FOUR TH P ROSECU TOR BEFORE THE PENAL JUDGES OF THE CIRCUITOF CALI,

DECIDES:

1- Decree an inhibitory writ within the prior inquiry herein, in the favor of the

person rendering the account,

having known the civil memorandums, legal representative from

for the conduct not

specified (typified), by mandate of article 327 of the Penal Law Code and

pursuant to what was reasoned.

2. The recourses of appeal for reversal and/or the remedy of appeal proceed

against the decision made.

' Lie Klin Jastian Bfc JuiuoJ.-/. I9S7

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Accused:Offense: Illegal enrichment

(b)(7)(A), (b)(7)(C), (b)(7)(F)pg.14

3. The action must go to the common secretary of the Unit for notice to be served

to the interested parties. If the decision is not appealed, it will be filed among

those of its lineage.

LET IT BE NOTIFIED AND ENFORCED

FOURTH SPECIALIZED FISCAL OF CALI

Certified Translation No. 2005-141 of a document written in Spanish. The above is a true andfaithful translation of a document written in Spanishlhad before me. Translated b y | ^ H H I H i| ^ m , Translator and interpreter's license m ^ | issued by the Ministry of Justice ofColombia and duly registered at the Ministry of External Affairs. Cali, October 15,2005. Signatureand Seal:

Lie. Aijn Jusriciscle J9i

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Petition 172k - Exoneración judicial