Opposition Brief — Marcos v. Republic of Philippines
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- In the Supreme Cour
OF THE
United States
OCTOBER TERM, 1988
FERDINAND MARCOS, IMELDA MARCOS,
AND RaMON AZURIN,
Petitioners,
vs.
REPUBLIC OF THE PHILIPPINES,
BRIEF IN OPPOSITION TO PETITION FOR A
WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
(Counsel of Record)
ALAN D. BERSIN
BRADLEY S. PHILLIPS
JoszPxH D. LEE
MICHAEL R. DOYEN
MUNGER, TOLLES & OLSON
355 South Grand Avenue
Los Angeles, California 90071-1560
(213) 683-9100
MatTEo A. T. CAPARAS
PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT
REPUBLIC OF THE PHILIPPINES
555 Fifth Avenue
New York, New York 10036
(212) 869-4721
Bowne of Los Angeles, Inc., Law Printers. (213) 742-6600
A
AWN
ie
i
QUESTIONS PRESENTED
1. Whether this Court should grant certiorari to re-
view the decision of an en banc panel of the Ninth Circuit
Court of Appeals affirming an interlocutory order of the
District Court.
2. Whether the act of state doctrine barred issuance of
the preliminary injunction preserving Petitioners’ assets
in the absence of any evidence that Petitioners obtained
their assets through “acts of state.”
3. Whether the political question doctrine barred issu-
ance of the preliminary injunction because United States
courts are incapable of applying any judicially managea-
ble standards to fraud, misappropriation and other un-
lawful conduct, in the United States and elsewhere, by the
former President of The Republic of the Philippines.
4. Whether the District Court abused its discretion by
exercising pendent jurisdiction over and issuing an in-
junction based upon the Philippines’ non-federal claims.
5. Whether the District Court abused its discretion in
issuing an in personam injunction in the absence of any
evidence of potential conflicts with the sovereignty of any
foreign nation.
6. Whether the District Court lacked jurisdiction to
issue the preliminary injunction because The Republic of
the Philippines is not a “person” entitled to sue on its
own behaif under the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1961 et seq.
i
LIST OF PARTIES
In addition to the parties listed in the Petition, the
following parties are named in the Second Amended
Complaint: Roberto S. Benedicto, Benjamin “Kokoy”
Romualdez, Bienvenido R. Tantoco, Gliceria R. Tantoco,
Lei Investments, Ltd., and California Overseas Bank.
ili
TABLE OF CONTENTS
ES
as sls ebactvcsccaceds
emeeeeeew en OP BEEN CADE ........ 5. cccceees
A. The Complaint and Motion for Preliminary
re gag ad's usc eed saves
B. The District Court’s Order ................
C. Proceedings in the Ninth Cireuit Court of
EE Se
I
CERTIORARI SHOULD NOT BE GRANTED TO
REVIEW THE EN BANC COURT'S INTERLOC-
UTORY AFFIRMANCE OF THE PRELIMI-
Ga
II.
CERTIORARI SHOULD NOT BE GRANTED TO
REVIEW THE COURT OF APPEALS’ DECI-
SIONS REGARDING THE ACT OF STATE
AND POLITICAL QUESTION DOCTRINES...
Bee I ID gcc cc tcc be vesccconss
1. No Conflict Exists Among the Courts of
Appeals with Regard to Corrupt Acts of
Foreign Officials for Personal Gain .....
“iv
TABLE OF CONTENTS
2. No Conflict Exists Among the Courts of
Appeals or Between the Ninth Circuit’s
Decision and Any Decision of This Court
with Regard to the Burden of Establishing
the Applicability of the Act of State Doce-
SUN ook ed owed ca ee eee eee eee
3. No Conflict Exists Between Decisions of
the Courts of Appeals and Decisions of
This Court With Respect to Application of
the Act of State Doctrine Where It Is
Asserted Against a Foreign Sovereign
PS ie reece ke nnes tha 0e4kae Bes
B. Political Question Doctrine ...............
Il.
CERTIORARI SHOULD NOT BE GRANTED TO
REVIEW THE DISCRETIONARY EXERCISE
“OF PENDENT JURISDICTION OVER THE
PHILIPPINES’ NON-FEDERAL CLAIMS ....
A. The District Court Did Not Abuse Its Discre-
tion in Exercising Jurisdiction over Pendent
Non-Federal Claims Which May Arise Under
ee errs ree pre e err
B. The District Court Did Not Abuse Its Discre-
tion in Finding that the Federal and Non-
Federal Claims Arise From a Common Nu-
cleus of Operative Facts ..................
C. The District Court Did Not Abuse Its Discre-
tion in Granting a Preliminary Injunction
Based on the Pendent Claims .............
Page
10
11
13
15
15
18
Vv
TABLE OF CONTENTS
IV.
CERTIORARI SHOULD NOT BE GRANTED TO
REVIEW WHETHER THE DISTRICT COURT
ABUSED ITS DISCRETION WHEN IT
REJECTED UNSUPPORTED AND VAGUE
SPECULATIONS CONCERNING THE “PO-
TENTIAL” FOR CONFLICT WITH FOREIGN
WEEE TERR eee re ea eee ee
CERTIORARI SHOULD NOT BE GRANTED TO
REVIEW WHETHER THE PHILIPPINES
HAS STANDING UNDER RICO..............
CE 0s in in KN b Sake d USAW ka Ace bends
APPENDIX: Complaint for Damages, Injunctive
Relief, Accounting, a Constructive
Trust, and Other Equitable Relief . .
#
21
22
28
la
vi
TABLE OF AUTHORITIES
Cases
Page(s)
Airlines Reporting Corp. v. Barry, 825 F.2d 1220
I Es 6 vus bcd convissoveheubexeweac 20
Alfred Dunhill of London, Inc. v. Republic of Cuba,
SE REO OER a vc Se cdccccetinestedaves 10, 12
American Banana Co-v. United Fruit Co., 213 U.S.
nan hocend bphknseineenacmben as 10
American Construction Co. v. Jacksonville, T. &
K. W. R. Co., 148 U.S. 372 (1893) ............ 6
Asiatic Petroleum Co. Ltd. v. Insular Collector of
Customs, 297 U.S. 666 (1936) ............... 16
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398
i chads oes Fd eh a4 eee Dae mena’ 11
Bouchet v. National Urban League, Inc., 730 F.2d
Be ee Gs ED hives cectob tastaseev ace 20, 21
Clayco Petroleum Corp. v. Occidental Petroleum
Corp., 712 F.2d 404 (9th Cir. 1983), cert. denied,
SEG UD. BORD TIGGER) onc cc ccc ccc cccsccccnce 9
Compania de Gas de Nuevo Laredo, 8.A. v. Entez,
Inc., 686 F.2d 322 (5th Cir. 1982), cert. denied,
ee I UE a 6 cb Ae cee babacnscscree 10
Cotten v. United States, 52 U.S. 229 (1851) ...... 23
County of Cook v. Lynch, 560 F. Supp. 136 (N.D.
CR Ac aca be sneer awe abekengeeue es 20
Duncan v. Kahanamoku, 327 U.S. 304 (1946) .... 14
Environmental Tectonics v. W.S. Kirkpatrick, Inc.,
847 F.2d 1052 (3d Cir. 1988), petition for cert.
filed (No. BT-BOGG) ... 0. ccc cc ccccccecceeees 8
Vil
TABLE OF AUTHORITIES
CASES
Page(s)
Federal Deposit Ins. Corp. v. Antonio, 649 F. Supp.
Se ae I I i sk ho bcbedcdemacecccee 20
Georgia v. Evans, 316 U.S. 159 (1942).......... 25
Gutor International AG v. Raymond Packer Co.,
Inc., 493 F.2d 938 (1st Cir. 1974)............ 17
Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240
mi & | eae aus Wako Ws bem x: 6
Haroldson v. Hospitality Systems, Inc., 596 F.
Supp. 1460 (D. Colo. 1984) ................. 20
Hawaii v. Standard Oil Co. of California, 405 U.S.
bi cewinin db xd'e aos ar errr pa 24
Hunt v. Mobil Oil Co., 550 F.2d 68 (2d Cir.), cert.
demed, 434 U.S. 984 (1977) ................. )
Illinois Department of Revenue v. Phillips, 771 F.2d
CR a ree 23
Industrial Investment Development Corp. v. Mitsui
& Co., 594 F.2d 48 (5th Cir. 1979), cert. denied,
Ge SE I Sc bso beeuenddcsacccecen 8
Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir.
Sabet Pp aadm ee hue cen caw awe Ee © 9,10
Jones v. Intermountain Power Project, 794 F.2d 546
a eee Wa ie we abe oh a #2 20
Laird v. Tatum, 408 U.S. 1 (1972) ............. 14,15
Maiden v. Biehl, 582 F. Supp. 1209 (S.D.N.Y.
SE oe ete hee ba oh we cee eka heat dkwee one 17
Miguel v. Court of Appeals, 29 S. Ct. Anno. 761
Sy PEGs oc. Wc 'vb0e60 60 gb 0etnee 16
hire
Vili
TABLE OF AUTHORITIES
CASES
Page(s)
Miller v. Wells Fargo Bank Inter. Corp., 406 F.
Supp. 452 (S.D.N.Y. 1975), aff’d, 540 F.2d 548
CBE SI APOE Vie-ekok bark bane eer Kb akaus 17
Northrop Corp. v. McDonnell Douglas Corp., 705
F.2d 1030 (9th Cir.), cert. denied, 464 U.S. 849
CE KKa es sak ced cee OO RCRA DEAR OE EA AS A 9
Occidental Petroleum Corp. v. Buttes Gas & Oil Co.,
331 F. Supp. 92 (C.D. Cal. 1971), aff'd, 461 F.2d
1261 (9th Cir.), cert. dened, 409 U.S. 950
CR S44 ce kk eda GwS WR ewe eee dees 9
People of State of Illinois v. Life of Mid-America
Ins. Co., 805 F.2d 763 (7th Cir. 1986) ........ 24
People of State of New York v. Seneci, 817 F.2d 1015
Py Se NEES GAN od doc che Faheenenbeaenens 24
Pfizer, Inc. v. Government of India, 434 U.S. 308
Ss ks cae ak hh aa ae ee 25, 26, 27
Pfizer, Inc. v. Lord, 522 F.2d 612 (8th Cir. 1975) 24
Phillips v. Smalley Maintenance Services, Inc., 711
ce UB A ere 20
Religious Technology Center v. Wollersheim, 796
F.2d 1076 (9th Cir. 1986), cert. denied, 479 U.S.
SE ia oA Khe os cg Whkich op aawa nea k 20
Republic of the Philippines v. Marcos, 806 F.2d 344
(2d Cir. 1986), cert. denied, 107 S.Ct. 2178
ko, SPE ere ee ee re a Peer ere 9,12
Russello v. United States, 464 U.S. 16 (1983)..... 23
Sedima, S.P.R.L. v. Imrex Company, Inc., 473 U.S.
| EGER As ere gore ren To 24, 26, 27
ix
TABLE OF AUTHORITIES
CASES
Page(s)
Sharon v. Time Inc., 599 F. Supp. 538 (S.D.N.Y.
EY! BRRSREERE Ee ya er Le ae rae ee en 10
State of Michigan, Dep’t of Treasury v. Fawaz, 653
F. Supp. 141 (E.D. Mich. 1986), aff’d mem., 848
pe ee ree 23
Steele v. Bulova Watch Co., 344 U.S. 280 (1952) 22
Sterling v. Constantin, 287 U.S. 378 (1932) ...... 14
Timberlane Lumber Co. v. Bank of America, 549
Se ee EG, I Sk dc ba ces cieeuesess 10, 16
United Mine Workers v. Gibbs, 383 U.S. 715
CN oF a a GW eh tik ia ean e450 15, 16, 19
United States v. Angelilli, 660 F.2d 23 (2d Cir.
1981), cert. denied, 455 U.S. 910 (1982) ...... 23
United States v. Firestone Tire and Rubber, 518 F.
Sune. 1061 (M.D. Olde 1961) 2c. ccc cccacees 17
United States v. Turkette, 452 U.S. 576 (1981) ... 24,27
USACO Coal Co. v. Carbomin Energy, Tic., 689
a ee Se ES seek irks Gepasunaes 20
Vespa of America Corp. v. Bajaj Auto Lid., 550 F.
em. See (TD. Cal, BOGE) occa ca vcwwnsons. 16
Williams v. Curtiss-Wright Corp., 694 F.2d 300 (3d
El eee ss dana eeee Cede se da ons 8
Zschernig v. Miller, 389 U.S. 429 (1968) ........ 14
xX
TABLE OF AUTHORITIES
CASES
Page(s)
Statutes
Rif < eae 2. ie | ee: eee re emer 4, 23
eis Coe fo) er rere Tre rere rrr: te 26
Bis Sete el Perrereerrereree, Tere rr ere 23, 26
California Civil Code,
I kn cc hoe ns hh os backend eden ess evens as 17
Philippine Civil Code,
pS. rrr er rr err rr ar rss 17
Rule
Federal Rules of Civil Procedure, Rule 44.1..... 14
No. 88-1431
In the Supreme Court
OF THE
United States
OCTOBER TERM, 1988
FERDINAND MARCOS, IMELDA MARCOs,
AND RAMON AZURIN,
Petitioners,
VS.
REPUBLIC OF THE PHILIPPINES,
Respondent.
BRIEF IN OPPOSITION TO PETITION FOR A
WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Respondent, The Republic of the Philippines, respect-
fully submits this Brief in Opposition to the Petition for a
Writ of Certiorari filed by Petitioners, Ferdinand E.
Marcos, Imelda R. Marcos, and Ramon Azurin. The Phil-
ippines prays that the Writ of Certiorari to review the
decision of the Court of Appeals for the Ninth Circuit
entered in this case on December 1, 1988, be denied.
2
STATEMENT OF THE CASE
A. The Complaint and Motion for Preliminary
Injunction.
The Philippines filed this action in the United States
District Court for the Central District of California on
June 16, 1986, together with an emergency application for
a temporary restraining order and a preliminary injunc-
tion. The verified Complaint’ alleged that, during his
twenty years as President of the Philippines, Mr. Marcos
systematically converted to his own use, and that of his
friends, family and associates, millions of dollars in prop-
erty belonging to the Philippine government and pecple.
The Complaint alleged that some of these assets
originated in the United States, as the direct or indirect
product of various United-States-funded or supported
programs of investment and assistance to the Philippines.
Marcos and his associates invested these converted assets
in the United States, or moved the assets through the
United States, in order to conceal and facilitate the fraud,
conversion and theft perpetrated against the Philippines.
Seven days after the Complaint was filed, the Philip-
pines presented the District Court with evidence that the
Marcoses’ net worth increased by at least $1.5 billion
during the term of Marcos’s Presidency, while the Mar-
coses reported cumulative earnings of only $337,429. This
discrepancy provided compelling evidence that, after fur-
ther investigation and discovery, the Philippines would be
‘A copy of the Complaint is appended hereto. The Philippines has
since filed two amended complaints, naming additional defendants
and detailing further allegations of misconduct by the Marcoses and
their associates. The District Court has granted the Philippines until
June 20, 1989, to file a motion for leave to file a Third Amended
Complaint.
a, e >
3
able to prove that the Marcoses acquired their wealth
through unlawful means. The Philippines also presented
evidence of a number of the specific unlawful means by
which the Marcoses had obtained their assets, including
the receipt of bribes and kickbacks; the misappropriation
of monies belonging to or intended for the Republic of the
Philippines, including United States foreign aid; and the
direct raiding of the Philippine treasury.
The Philippines also presented substantial evidence
that the defendants have concealed their illegally ob-
tained assets, thus demonstrating a need for preliminary
relief to protect the Philippines’ ability ultimately to
recover those assets. Specifically, the evidence showed
that the Marcoses had deposited $1.5 billion in various
Swiss bank accounts under aliases or in the names of
shell entities, and had transferred large sums of money
through elaborate real estate and banking transactions in
the United States and elsewhere.
The defendants presented no contrary evidence. They
neither denied owning the assets alleged in the Complaint
nor denied having stolen those assets from the Philip-
pines. Moreover, the defendants presented no evidence
that the preliminary injunction would cause them any
hardship whatsoever. To the contrary, the Marcoses ex-
plicitly stated that they “would not object to a preserva-
tion of the status quo of the assets covered by the
injunction in this case ....” (Marcos Reply Brief in
Ninth Cireuit at 6.)
B. The District Court’s Order.
The District Court entered its Order Issuing Prelimi-
nary Injunction on June 25, 1986, based on the evidence
available nine days after the Complaint was filed. (Peti-
tioners’ Appendix (“P.A.”) 96a.) The court found that
4
the evidence established a “substantial likelihood that
defendants have operated, conducted the affairs of, and
invested in enterprises in violation of RICO,” and that the
affairs of such enterprises “were conducted through a
pattern of racketeering activity.” (P.A. 97a.) The District
Court ruled that “[a] foreign government is a ‘person’
within the meaning of 18 U.S.C. § 1961(3) and may bring
suit under RICO.” (P.A. 98a.) The court found that it
had pendent jurisdiction over the remaining claims be-
eause they “arise from a common nucleus of operative
fact.” (Id.)
The court found that there was a “substantial danger”
that, in the absence of preliminary relief, the defendants
“would transfer or conceal funds, property, books and
records, placing said items beyond the Court’s process
and recovery by the Philippines in this action,” and that
the Philippines would be irreparably injured as a result.
(Id.) The District Court also found a “substantial likeli-
hood” that the Philippines will prevail in this action. (Jd.)
Accordingly, the court issued an injunction which (1)
prohibits the defendants from receiving or obtaining pos-
session or control over the property held by the United
States Customs Service in Hawaii; (2) requires Lloyds
Bank to maintain custody over all funds held for the ~
benefit of the defendants; (3) prohibits the defendants
from transferring, disposing of, encumbering, or conceal-
ing any assets of the Marcoses; and (4) prohibits defend-
ants from destroying, disposing of, or concealing
documents related to such assets. (P.A. 99a-101la.) The
court’s order permits the Marcoses to “use said funds to
pay attorneys’ fees and normal living expenses.” (P.A.
101a.)
PbO hd
5
C. Proceedings in the Ninth Circuit Court of Appeals.
On June 4, 1987, a divided panel of the Ninth Circuit
reversed the preliminary injunction. The majority held
that the Philippines is not likely to prevail on its claims,
because “as to many of the assets in question, adjudica-
tion will be barred by the act of state doctrine, the
political question doctrine or both.” (P.A. 67a.)
The Ninth Cireuit agreed to rehear the case en banc,
and requested an amicus curiae brief on the act of state
doctrine from the United States. The United States sub-
mitted an amicus brief stating that “the Department of
State has informed us that there are no foreign policy
interests of the United States in our present relations
with the government of the Philippines that would be
adversely affected by adjudication,” and that ap the
present record, it is not clear that any act of state ... is
involved in this case.” (P.A. 139a-140a.)
On December 1, 1988, the en banc Court of Appeals
affirmed the preliminary injunction. The court concluded
that the Philippines had a well-pleaded RICO claim pro-
viding the District Court with jurisdiction; that neither
the act of state nor political question doctrine barred
issuance of the preliminary injunction; that the District
Court had properly exercised jurisdiction over the Philip-
pines’ pendent claims; and that the injunction as framed
was warranted by the evidence. The en banc court held
that “[a] serious question of liability has been presented
and the Republic has a fair chance of success on the
merits of its case,” and that “[h]ardship to the Republic
would have been great and irreparable if the district court
had not taken its prudent, amply justified action to keep
the Marcoses’ assets from disappearing.” (P.A. 17a.)
6
REASONS FOR DENYING THE WRIT
I
CERTIORARI SHOULD NOT BE GRANTED TO
REVIEW THE EN BANC COURT'S INTERLOCU-
TORY AFFIRMANCE OF THE PRELIMINARY
INJUNCTION.
The issue before the en banc panel of the Ninth Circuit
was whether the District Court abused its diseretion in
issuing the preliminary injunction. In affirming the in-
junction, the Ninth Circuit held only that “[a] serious
question of liability has been presented and the Republic
has a fair chance of success on the merits of its case.”
(P.A. 17a.) No final decision has been rendered with
respect to any of the issues in the case. The District
Court’s ultimate decision with respect to each of those
issues will be subject to review by the Ninth Circuit on
appeal from any final judgment, and by this Court on a
writ of certiorari to the Ninth Circuit following such
review. Moreover, as the en banc opinion states, and as
Petitioners do not contest, “(t]he Marcoses have offered
no evidence of any hardship they would suffer if the
injunction were issued.” (P.A. 12a; emphasis added.)
In these circumstances, there is no reason for this
Court to grant certiorari at this time. As the Court has
stated, “this court should not issue a writ of certiorari to
review a decree of the circuit court of appeals on appeal
from an interlocutory order, unless it is necessary to
prevent extraordinary inconvenience and embarrassment
in the conduct of the cause.” American Construction Co. v.
Jacksonville, T. & K. W. R. Co., 148 U.S. 372, 384 (1893);
accord Hamiiton-Brown Shoe Co. v. Wolf Bros. & Co., 240
U.S. 251, 258 (1916) (“except in extraordinary cases, the
writ is not issued until final decree’’). There has been no
showing, indeed Petitioners do not even argue, that this is
7
an “extraordinary” situation in which certiorari should be
granted to review an interlocutory order. The United
States has stated that “there are no foreign policy inter-
ests of the United States in our present relations with the
government of the Philippines that would be adversely
affected by adjudication [of the Philippines’ claims].”
Il.
CERTIORARI SHOULD NOT BE GRANTED TO RE-
VIEW THE COURT OF APPEALS’ DECISIONS RE-
GARDING THE ACT OF STATE AND POLITICAL
QUESTION DOCTRINES.
A. Act of State Doctrine.
This case presents unique circumstances relevant to the
applicability of the act of state doctrine. The Complaint
alleges acts of corruption for personal gain by a foreign
government official. That official is no longer a part of the
foreign government, and is now residing in the United
States. The plaintiff is the foreign government itself,
which seeks to recover money stolen from it by the former
official, and which expressly requests that the United
States courts adjudicate its claims. The Executive Branch
of the United States has advised the Court of Appeals
that “there are no foreign policy interests of the United
~ States in our present relations with the government of the
Philippines that would be adversely affected by adjudica-
tion [of the Philippines’ claims].” The Executive Branch
itself has made allegations against Petitioners in a crimi-
nal indictment that are similar to the allegations of the
Philippines’ Complaint. Finally, as the en banc Court of
Appeals noted, “the Marcoses offered no evidence whatso-
ever to support the classification of their acts as acts of
state.” (P.A. 9a.)
8
These circumstances do not present an appropriate
situation for this Court to grant certiorari to review
abstract act-of-state issues at an interlocutory stage of
the proceedings. As explained below, the Court of Ap-
peals’ decision does not conflict with any decision of this
Court or of any circuit. To the contrary, the decision was
fully warranted by existing authority. Moreover, if Peti-
tioners ever present evidence in the courts below that
they acquired some of their vast wealth through acts of
state, the District Court and Court of Appeals will ad-
dress the applicability of the act of state doctrine to
particular claims on a more developed record. This Court
will have the opportunity to review the final decisions of
those courts if it deems such review appropriate.
1. No Conflict Exists Among the Courts of Appeals
with Regard to Corrupt Acts of Foreign Officials
for Personal Gain.
Petitioners assert that there is a “conflict in the Cir-
cuits on the application of the act of state doctrine where
corruption is alleged.” (Petition at 7.) Petitioners state
that some courts “have determined that the act of state
doctrine does not prevent investigation into whether the
decisions of foreign governments in granting contracts
were influenced by bribery of foreign officials,” citing
decisions by the Third and Fifth Cireuit Courts of Ap-
peals.” (Id., at 6.) Petitioners then contrast these deci-
sions with others that “refuse to question the reasons or
motivations underlying governmental acts,” citing deci-
"Williams v. Curtiss-Wright Corp., 694 F.2d 300 (3d Cir. 1982);
Environmental Tectonics v. W.S. Kirkpatrick, Inc., 847 F.2d 1052 (3d
Cir. 1988), petition for cert. filed (No. 87-2066); Industrial Investment
Development Corp. v. Mitsui & Co., 594 F.2d 48 (5th Cir. 1979), cert.
denied, 445 U.S. 903 (1980).
9
sions by the Ninth and Second Circuit Courts of Appeals.’
(Id., at 6-7.) None of the latter decisions involved circum-
stances similar to those here. None involved a lawsuit by a
| foreign government, or a lawsuit seeking to recover prop-
erty misappropriated through corrupt acts for personal
| gain by a former government official, or a situation where
the Executive Branch had expressly stated that adjudica-
tion of the claims would not adversely affect the United
States’ foreign relations. Instead, each involved a lawsuit
between two private business interests in which, rather
than seeking recovery of property misappropriated from a
foreign government, as the Philippines does here, one
business party was challenging the legal validity of the
official act of a foreign nation. Thus, any conflict among
these decisions does not warrant the grant of certiorari
here.
There is no conflict among the circuits over the applica-
tion of the act of state doctrine to the circumstances of
this ease. Both the Second and Ninth Circuits have held
that the doctrine does not preclude adjudication of the
Philippines’ claims against Petitioners. See Republic of
the Philippines v. Marcos, 806 F.2d 344 (2d Cir. 1986),
cert. denied, 107 S.Ct. 2178 (1987). The Fifth Circuit has
also refused to apply the act of state doctrine where a
foreign government sought an adjudication by a federal
court with respect to corrupt acts for personal gain by a
former official. Jimenez v. Aristeguieta, 311 F.2d 547 (5th
A NON A OE LENG AGD Pe Pm
ir Sr eaahtd iy hte a eat
Occidental Petroleum Corp. v. Buttes Gas & Oil Co., 331 F. Supp. 92
(C.D. Cal. 1971), aff'd, 461 F.2d 1261 (9th Cir.), cert. denied, 409
U.S. 950 (1972); Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d
1030 (9th Cir.), cert. denied, 464 U.S. 849 (1983); Clayco Petroleum
Corp. v. Occidental Petroleum Corp., 712 F.2d 404 (9th Cir. 1983),
cert. denied, 464 U.S. 1040 (1984); Hunt v. Mobil Oil Co., 550 F.2d 68
(2d Cir.), cert. denied, 434 U.S. 984 (1977).
-
10
Cir. 1962).* Petitioners have cited no decision, and Re-
spondent is aware of none, reaching a different result
under similar circumstances.
2. No Conflict Exists Among the Courts of Appeals
or Between the Ninth Circuit’s Decision and
Any Decision of this Court with Regard to the
Burden of Establishing the Applicability of the
Act of State Doctrine.
Petitioners somewhat vaguely suggest that the Court
should grant certiorari to “consider generally whether the
treatment of the act of state doctrine as an affirmative
defense is compatible with the operation of the act of
state doctrine as an abstention doctrine.” (Petition at 9.)
In support of this suggestion, Petitioners merely cite
several decisions, including American Banana Co. v.
United Fruit Co., 213 U.S. 347 (1909), in which the courts
determined that the act of state doctrine applied, based
upon an examination of the allegations of the complaint.
Petitioners then assert that “the en banc panel failed to
undertake such an examination.” (Petition at 8.) There is
no evidence that the en banc panel failed to examine the
Complaint. The Ninth Circuit stated that “[t]he burden
of proving acts of state rested upon [Petitioners],” citing
this Court’s decision in Alfred Dunhill of London, Inc. v.
Cuba, 425 U.S. 682 (1976), and that Petitioners had not
even attempted to meet that burden. (P.A. 9a.) Petition-
“Several other courts have held that the act of state doctrine
precludes inquiry only with respect to actions of foreign government
officials that are taken in the public interest, not those taken to
achieve private or personal interests. E.g., Compania de Gas de Nuevo
Laredo, 8.A. v. Entez, Inc., 686 F.2d 322, 326 (5th Cir. 1982), cert.
denied, 460 U.S. 1041 (1983); Timberlane Lumber Co. v. Bank of
America, 549 F.2d 597, 606 (9th Cir. 1976); Sharon v. Time Inc., 599
F. Supp. 538, 544 (S.D.N.Y. 1984).
. 11
ers do not even cite Alfred Dunhill, in which this Court
placed the burden of establishing the applicability of the
act of state doctrine on the party asserting it as a bar to
adjudication. 425 U.S. at 694.
There is no conflict in the circuits, for those decisions
that apply the act of state doctrine based on the allega-
tions of the complaint do not stand for a contrary rule. As
with any affirmative defense, in some cases, such as those
cited by Petitioners, the applicability of the doctrine
appears clearly on the face of the complaint. In others, as
here, its applicability is not apparent on the face of the
complaint and will depend upon the evidence later ad-
duced. If Petitioners ever introduce evidence that they
acquired any portion of their vast wealth through acts of
state, the District Court will be able to determine whether
) the act of state doctrine applies to the specific conduct in
) question. The Ninth Cireuit and this Court will have the
opportunity to review that decision if appropriate.
- 3. No Conflict Exists Between Decisions of the
Courts of Appeals and Decisions of this Court
with Respect to Application of the Act of State
Doctrine Where It Is Asserted Against A For-
eign Sovereign Plaintiff.
Both the en banc panel of the Ninth Circuit and the
Second Circuit held that the justification for applying the
act of state doctrine is weakened where it is asserted
against a foreign sovereign plaintiff that is making claims
against one of its former officials. Petitioners contend
that these holdings are in conflict with this Court’s deci-
sion in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398
(1964). In that case, the Cuban government sought to
recover certain property it had expropriated prior to
shipment of the property from Cuba to the United States.
The defendants asserted that the expropriation decree
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12
was invalid, but this Court held that the act of state
doctrine precluded any inquiry into the validity of the
decree. The Court noted that the “sensitivity in regard to
foreign relations and the possibility of embarassment to
the executive” were heightened where invalidating the
decree would be a “rebuke to a recognized power” which
was “a suitor in our courts.” Z7d., at 437.
But the Court also emphasized, in a passage relied
upon by the Ninth and Second Circuits but not quoted by
Petitioners, that a change of governments in the foreign
country might dictate a different result:
The balance of relevant considerations may also be
shifted if the government which perpetrated the chal-
lenged act of state is no longer in existence, ... for
the political interest of this country may, as a result,
be measurably altered.
Id., at 428. Even more clearly does the balance of consid-
erations shift when the perpetrator is no longer in power
and the newly-recognized government itself is seeking the
adjudication. See Republic of the Philippines v. Marcos,
806 F.2d at 359. -
Indeed, the manner in which Petitioners would have the
act of state doctrine applied is wholly inconsistent with
its purpose: to avoid embarrassment of the #Hxecutive
Branch in its conduct of foreign relations. Alfred Dunhill,
supra, 425 U.S. at 697. The present government of the
Philippines has requested that the United States courts
assist it in recovering money stolen by former President
Marcos, who now resides in the United States. The State
Department has determined, and has communicated to
the Ninth Circuit, that honoring the Philippines’ request
would in no way jeopardize the foreign relations of the
United States. Moreover, the Justice Department itself
<head> cb Nita ila See Se Lk ot
13
has filed criminal charges against the Marcoses that are
in many respects similar to the allegations of the Philip-
pines’ Complaint. In these circumstances, it is not a
failure to apply the act of state doctrine, but a refusal to
adjudicate the Philippines’ claims, that would threaten to
embarrass the Executive Branch in its conduct of foreign
relations. ;
B. Political Question Doctrine.
Petitioners contend that this Court should graat certio-
rari to determine whether “President Marcos’s invocation
of martial law gave him dictatorial powers that defy
judicial examination.” (Petition at 11.) Petitioners seek
to have this Court adopt the rule advanced by the original
majority panel in the Ninth Circuit, that “no legal re-
straints can prevail against dictatorial power. A dictator
ean do whatever he can get away with.” (P.A. 66a.)
Such a ruling, however, would not represent an applica-
tion of the political question doctrine; it would not be a
finding that the courts are incapable, by reason of a lack
of manageable standards, of determining whether
Marcos’s actions were legal. Instead, it would amount to
adoption of a wholly unprecedented rule of substantive
law: that everything a foreign “dictator” does is necessa-
rily legal, and that a dictator is therefore not subject to
liability for any action he takes, no matter how violent or
avaricious. The en banc panel of the Ninth Circuit cor-
rectly rejected such a rule, noting both that
“(b]ribetaking, theft, embezzlement, extortion, fraud,
and conspiracy to do these things are all susceptible of
conerete proofs that need not involve political questions,”
and that “questions of foreign law are not beyond the
capacity of our courts.” (P.A. 9a.)
14
Petitioners make two arguments, each without merit.
First, they contend, without citation to anything in the
record, that “President Marcos’s powers... were more
than ‘extraordinary,’ they were absolute.” (Petition at
12.) Even were this true, there is no evidence of it in the
record. To the contrary, the verified complaint shows that
Marcos repeatedly acknowledged his obligation to govern
“pursuant to his oath of office and the Constitution and
Laws of the Philippines,” and that Marcos’s acts were in
violation of existing Philippine laws. Moreover, Marcos
himself never asserted in either the District Court or the
Court of Appeals the sweeping proposition advanced by
the original Ninth Cireuit panel and first adopted by
Petitioners on this Petition. To the contrary, Marcos
himseif contended below that provisions of the Philippine
Constitution applied to his conduct as President of the
Philippines.
Second, Petitioners contend that United States courts
are incapable of interpreting foreign laws, including the
Philippine Constitution, or of adjudicating the legality of
acts taken under martial law. This Court has not agreed
that interpreting foreign laws is beyond the capacity of
the federal courts. See Fed. R. Civ. P. 44.1 (“The Court, in
determining foreign law, may consider any relevant mate-
rial or source’); Zschernig v. Miller, 389 U.S. 429, 461
(1968) (Harlan, J., concurring). Moreover, the Court has
rejected the argument that the existence of “martial iaw”
precludes judicial review of a government official’s con-
duct. See Duncan v. Kahanamoku, 327 U.S. 304. 315
(1946) (martial law did not authorize supplanting of
authority of civil courts); Sterling v. Constantin, 287 U.S.
378, 401 (1932) (“What are the allowable limits of mili-
tary discretion [under martial law], and whether or not
they have been overstepped in a particular case, are
judicial questions”); Laird v. Tatum, 408 U.S. 1, 19
15
(1972) (Douglas, J., dissenting on other grounds)
(“Even when ‘martial law’ is declared ... its appropriate-
ness is subject to judicial review”).
The District Court has yet to decide what law governs
the various actions of the defendants. Once the Court
decides what law applies, it can determine whether there
are judicially manageable standards for evaluating the
legality of Petitioners’ conduct under that law. If the
District Court reaches the wrong conclusions about the
applicable law, the political question doctrine, or the
legality of Marcos’s actions under that law, those conclu-
sions will be subject to review by the Court of Appeals
and this Court at the appropriate time. This Court should
not grant certiorari now, to review Petitioners’ novel
claim that the political question doctrine grants immunity
in our courts to a deposed foreign “dictator.”
III.
CERTIORARI SHOULD NOT BE GRANTED TO RE-
VIEW THE DISCRETIONARY EXERCISE OF PEN-
DENT JURISDICTION OVER THE PHILIPPINES’
NON-FEDERAL CLAIMS.
A. The District Court Did Not Abuse Its Discretion
in Exercising Jurisdiction Over Pendent Non-
Federal Claims Which May Arise Under Foreign
Law.
Petitioners assert that this Court should “review
whether the Gibbs factors apply with equal force” where
the pendent claims arise “principally under foreign law.”
(Petition at 14-15.) This suggestion lacks merit for sev-
eral reasons. Petitioners offer no explanation as to how or
why the factors set forth in United Mine Workers v. Gibbs,
383 U.S. 715 (1966), apply with less “force” in such cases.
16
No cases or commentators cited by Petitioners even
suggest that Gibbs provides an inadequate framework for
assessing pendent jurisdiction over foreign claims.”
The concerns raised by Petitioners are adequately ad-
dressed within Gibbs’ concern for “comity” and obtaining
a “surer-footed reading of applicable law.” Gibbs, supra
383 U.S. at 726. These concerns were considered and
properly rejected by the courts below. Petitioners argue
here, as Amicus argued below, that foreign law “often is
the product of a legal culture alien to U.S. Courts.”
(Petition at 14.) Whether or not this is often the case,
there is no particular reason to expect any such difficulty
here. Modern Philippine law, for example, grew out of
American jurisprudence, see generally Asiatic Petroleum
Co. Ltd. v. Insular Collector of Customs, 297 U.S. 666
(1936) (noting the history of United States Supreme
Court review of appeals from the Supreme Court of the
Philippines prior to the 1937 Independence Act), and
Philippine courts frequently look for guidance to Ameri-
ean precedents and commentators.° To the extent that the
District Court later determines that aspects of the pen-
dent claims should be judged under Philippine law, there
is no reason to believe that the District Court will find
‘Petitioners cite Vespa of America Corp. v. Bajaj Auto Litd., 550 F.
Supp. 224, 227-30 (N.D. Cal. 1982) as a case where the court applied
not Gibbs, but the Ninth Circuit’s analysis in Timberlane Lumber Co.
v. Bank of America, 549 F.2d 597 (9th Cir. 1976). In fact, Vespa
quoted and applied the Gibbs standard, Vespa, supra, 550 F. Supp. at
227, 230, and merely relied on Timberlane for a “ready made frame-
work” for a detailed assessment of “comity” considerations — one of
several factors identified in Gibbs. Vespa, supra, 550 F. Supp. at 229.
SSee, e.g., Miguel v. Court of Appeals, 29 S. Ct. Anno. 761, 775 (Phil.
Sup. Ct. 1969) (drawing on U.S. precedents in determining the
effects of a constructive trust).
ee
17
such legal issues especially difficult or unfamiliar.’ If
vexing foreign legal issues later arise in connection with
particular claims, the District Court can again consider
whether pendent jurisdiction is appropriate over the
claims in question, in light of all the cireumstances.
Petitioners also claim that foreign courts may find
federal court resolution of foreign issues offensive and
may be “openly hostile” to American judgments “bearing
little nexus to the United States.” (Petition at 14-15.)
This speculative worry has no bearing on this case, with
its substantial United States nexus. Marcos maintains
substantial assets here, and his fraudulent conduct and
dealings in this country violated United States law. More-
over, Marcos resides here. Indeed, “[t]he United States,
in the public interest of the nation, has imposed a depar-
ture control order on defendant Ferdinand Marcos.”
(P.A. 134a n.20.) As the United States seems to concede,
"Indeed, the Philippine law governing claims of fraud and imposi-
tion of constructive trusts is almost identical to that of California.
Compare, e.g., Cal. Civ. Code § 2224 (“One who gains a thing by
fraud, accident, mistake, undue influence, the violation of a trust, or
some other wrongful act...is an involuntary trustee of the thing
gained, for the benefit of the person who would otherwise have had
it”) with Philippine Civ. Code, Art. 1456 (“If property is acquired
through mistake or fraud the person obtaining it is, by force of law,
considered a trustee of an implied trust for the benefit of the person
from whom the property comes’’).
Similarly, because of the prominence of Swiss and American banks
in international finance, the United States district courts are fre-
quently called upon to resolve Swiss legal issues, and frequently do
so without apparent difficulty. See, e.g., Gutor International AG v.
Raymond Packer Co., Inc., 493 F.2d 938, 946 (1st Cir. 1974); Maiden
v. Biehl, 582 F. Supp. 1209, 1215-17 (S.D.N.Y. 1984); United States v.
Firestone Tire and Rubber, 518 F. Supp. 1021 (N.D. Ohio 1981);
Miller v. Wells Fargo Bank Inter Corp., 406 F. Supp. 452, 482-83
(S.D.N.Y. 1975), aff’d, 540 F.2d 548 (2d Cir. 1976).
18
this action probably “renders the Philippine forum ‘un-
available’”’ (P.A. 134a), thus eliminating the only forum
capable of rendering a “surer-footed reading” of Philip-
pine law. Given these circumstances, and the presence of
the Philippines as plaintiff, there is no reason to expect
Philippine hostility toward the decision of the District
Court.
B. The District Court Did Not Abuse Its Discretion
in Finding that the Federal and Non-Federal
Claims Arise from a Common Nucleus of Opera-
tive Facts.
The District Court found, and the Court of Appeals
agreed, that the federal and pendent claims are based on
a common nucleus of operative facts. As the Ninth Circuit
succinetly summarized this finding:
“The RICO claims cannot be proved without getting
deeply into the pendent claims and proving some or
all of them. Because the acts charged, if proved,
support both the RICO and the non-RICO claims, the
district court has subject matter jurisdiction over all
claims in the Republie’s complaint.”
(P.A. 6a.)
Petitioners never suggest that this factual finding was
clearly erroneous. They note only, as Amicus did below,
that “ ‘it is not clear to what extent the bulk of plaintiff's
nonfederal claims arise from a “common nucleus of opera-
tive facts” with the federal claim.’” Petition at 15 (em-
phasis added). This faint-hearted disagreement with the
District Court’s factual finding ignores the applicable
appellate standard and presents no issue worthy of inter-
locutory review.
19
The courts below properly found that the Philippines
would ordinarily be expected io litigate all these claims in
a single suit. Petitioners’ contrary arguments present no
substantial issue. The fact that, in addition to the instant
action against Marcos personally, the Philippines com-
menced several in rem actions involving particular pieces
of property is irrelevant. Petitioners do not suggest that
any of those actions would provide a preferable, or even
conceivable, forum for any of the pendent claims in the
instant action.®
In any event, if, as Amicus speculates, a more fully
developed record later reveals that the claims do not arise
from a common nucleus of operative facts, the District
Court will be free, as the en banc panel noted, to again
exercise its discretion, and “may conclude that some or
all of the pendent claims should be dismissed.” (P.A. 6a-
7a.) See Gibbs, supra, 383 U.S. at 727. There is no reason
to assume that the District Court will later resolve these
issues incorrectly, and there is no point to granting
certiorari only to guess what the District Court might
later do in light of developments which eannot now be
anticipated or fully evaluated.
C. The District Court Did Not Abuse Its Discretion
in Granting a Preliminary Injunction Based on
the Pendent Claims.
Petitioners seem to suggest that because RICO does
not itself provide for injunctive relief, RICO somehow
*Similarly, the fact that Marcos keeps a large part of his booty in
numbered Swiss bank accounts provides no basis for refusing to hear
the pendent claims in this country. Petitioners do not and could not
suggest that Switzerland is a preferable forum for any of the instant
pendent claims. Nor is there any reason to think that Swiss banking
issues, if they arise, will dominate the proceedings or will be particu-
larly difficult to decide. See supra, note 7.
20
bars the federal courts from granting such relief on
pendent claims. Petitioners ask this Court to ciear up
“the confusion among lower courts regarding this issue.”
(Petition at 17.)
Petitioners failed to raise this issue below. In any
event, there is no such confusion. The lower courts have
consistently endorsed the practice of granting injunctions
under pendent non-federal claims in RICO actions. See,
e.g., Airlines Reporting Corp. v. Barry, 825 F.2d 1220,
1227 (8th Cir. 1987); Religious Technology Center v. Wol-
lersheim, 796 F.2d 1076, 1089-90 (9th Cir. 1986), cert.
denied, 479 U.S. 1103 (1987); USACO Coal Co. v.
Carbomin Energy, Inc., 689 F.2d 94, 97-98 (6th Cir. 1982);
Federal Deposit Ins. Corp. v. Antonio, 649 F-Supp. 1352,
1354 (D. Colo. 1986); County of Cook v. Lynch, 560 F.
Supp. 136, 140-41 (N.D. Ill. 1982).
Petitioners not only cite no evidence, they do not even
allege, that Congress intended to deprive RICO plaintiffs
of preliminary injunctive relief on pendent claims. Peti-
tioners point to no policies supporting the judicial enact-
ment of such a limitation. In contrast to the Title VII
context, where a somewhat similar issue engendered some
eontroversy among the district courts,” there is no reason
*Petitioners argue that Title VII’s provision of equitable relief bars
jurisdiction over pendent claims for compensatory relief. This inter-
pretation finds no support among the circuit courts of appeals. The
Tenth Circuit has expressly rejected this position, Jones v. Intermoun-
tain Power Project, 794 F.2d 546, 552 (10th Cir. 1986), and overruled
one of the cases cited by Petitioners, Haroldson v. Hospitality Systems
Inc., 596 F. Supp. 1460 (D. Colo. 1984). The Eleventh Circuit has
affirmed the exercise of jurisdiction over state claims pendent to Title
VII claims, Phillips v. Smalley Maintenance Services, Inc., 711 F.2d
1524, 1531 (11th Cir. 1983), and the D.C. Circuit has declined to
consider the issue. Bouchet v. National Urban League, Inc., 730 F.2d
799, 805 n.2 (D.C. Cir. 1984).
" | ,
21
to believe at this point that there is a “great discrepancy
between the ... relief available under” RICO and the
relief sought under the pendent claims. Bouchet v. Na-
tional Urban League, Inc., 730 F.2d 799, 805-06 (D.C. Cir.
1984) (discussing Title VII remedies). The injunction
sought here is merely ancillary to the enforcement of the
ultimate remedy sought under RICO and the pendent
claims — money damages.
IV.
CERTIORARI SHOULD NOT BE GRANTED TO RE-
VIEW WHETHER THE DISTRICT COURT
ABUSED ITS DISCRETION WHEN IT REJECTED
UNSUPPORTED AND VAGUE SPECULATIONS
CONCERNING THE “POTENTIAL” FOR CON-
FLICT WITH FOREIGN COURTS.
Petitioners claim that this Court should review the
preliminary injunction because the en banc panel “ignored
... comity concerns” over the extraterritorial reach of the
injunction. (Petition at 19.) Here, as below, Petitioners
point to no particular cause for concern, and claim only a
speculative “potential” for interference with the laws or
sovereignty of other nations. No such interference ap-
pears likely at this point. There is no reason to believe, for
example, that Swiss courts will be offended by the Dis-
trict Court’s order that Marcos not remove money from
Swiss bank accounts. Indeed, at the request of the Philip-
pines, Swiss authorities have frozen Marcos’s assets.
Given the presence of the Philippines as the plaintiff,
interference with Philippine courts seems even less likely.
The en banc panel properly rejected Petitioners’ con-
clusory arguments, noting that the injunction operated
against Marcos personally, not 1m rem, and that there was
‘no reason to be concerned about its territorial reach.”
22
(P.A. 15a.) This conclusion was neither clearly erroneous
nor contrary to applicable law.
Petitioners’ reliance on Steele v. Bulova Watch Co., 344
U.S. 280 (1952), is misplaced. In Bulova, this Court held
that, because the Mexican courts had expressly rejected
any interest in protecting registration of the defendant’s
infringing trademark, the question “whether a valid for-
eign registration would affect the power to enjoin [use of
the trademark] or the propriety of its exercise is not
before us.” 344 U.S. at 289 (emphasis added). The Court
expressed no view as to the propriety of entering the
injunction if Mexican courts had upheld the registration
and interference had therefore seemed likely. In the
passage quoted by Petitioners, the Court merely held
that, given the conceded lack of any possible interference
with Mexican courts, there was no reason to question the
scope of the injunction. Nothing in Bulova suggests that,
at the preliminary injunction stage, a court must somehow
imagine every conceivable interference with a foreign
sovereign, or somehow guarantee that every unknown
potential for interference could not possibly oceur.
V
CERTIORARI SHOULD NOT BE GRANTED TO RE-
VIEW WHETHER THE PHILIPPINES HAS
STANDING UNDER RICO.
Petitioners’ final argument is that this Court should
grant certiorari to determine whether the Philippines has
standing to sue under RICO. Every judge on both panels
of the Ninth Cireuit agreed that the Philippines has such
standing. Petitioners’ suggestion that the issue requires
resolution by this Court on this interlocutory appeal is
without merit.
|
:
:
23
First, Petitioners claim there is a conflict among the
lower courts as to whether any governmental entity has
standing to sue under RICO. This is incorrect. In Illinois
Department of Revenue v. Phiilips, 771 F.2d 312 (7th Cir.
1985), the Court of Appeals expressly held that RICO
“makes no distinction between state governments, con-
sumers, competitors, or other victims in determining who
qualifies as a person....” Id., at 314. The only decision
cited by Petitioners for the proposition that a governmen-
tal entity does not have RICO standing is State of Michi-
gan, Dep’t of Treasury v. Fawaz, 653 F. Supp. 141 (E.D.
Mich. 1986), aff'd mem., 848 F.2d 194 (6th Cir. 1988). In
that ease, the district court held that the Revenue Divi-
sion of the State Treasury Department did not have
standing to bring a civil RICO action against a state sales
tax violator. The court did not rule that a governmental
entity is not generally a “person” with standing to sue
under RICO. Instead, it merely held that policy consider-
ations dictated against affording such standing to state
tax eollectors in particular, because “[f]ederal courts
would be barraged with state agencies’ vindictive civil
RICO actions against tax cheaters.” 653 F. Supp. at 143.
In faet, there can be little doubt that a governmental
entity is a “person” generally entitled to sue under 18
U.S.C. § 1964(e). Section 1961(3) of RICO states that
“person” includes “any individual or entity capable of
holding a legal or beneficial interest in property.” (Ei:npha-
sis added.) It is beyond dispute that a sovereign state is
an “entity,” see United States v. Angelilli, 660 F.2d 23, 31
(2d Cir. 1981), cert. denied, 455 U.S. 910 (1982), and is
eapable of holding a legal or beneficial interest in prop-
erty, Cotten v. United States, 52 U.S. 229, 231 (1851).
Moreover, this Court has repeatedly held that similarly
broadly worded definitions under RICO are to be given
their full effect. Russello v. United States, 464 U.S. 16, 21
24
(1983) (“any interest”); United States v. Turkette, 452
U.S. 576, 580-81 (1981) (“any enterprise’); see also
Sedima, S.P.R.L. v. Imrex Company, Inc., 473 U.S. 479,
497 (1985) (“RICO is to be read broadly”).
Second, Petitioners contend that the Ninth Circuit’s
decision creates a conflict among the circuits with regard
to the “capacity” in which a governmental entity may sue
under RICO. The en banc panel held that “[t]he foreign
nature of the Republic does not deprive it of statutory
personhood.” (P.A. 3a.) As Petitioners concede, the panel
did not distinguish between the Philippines’ standing to
sue for damages for alleged misappropriations from its
national treasury and its standing to sue in parens patriae
for damages to its individual citizens. Petitioners cite
absolutely no authority for the proposition that a govern-
mental entity does not have standing to sue, either under
RICO or under the antitrust laws, for damages to its
treasury. The “conflicting” cases Petitioners cite hold
only that, under certain circumstances, a government
entity does not have standing to sue for damages suffered
by its individual citizens or its “general economy.” See
Hawaii v. Standard Oil Co. of California, 405 U.S. 251
(1972); People of State of New York v. Seneci, 817 F.2d
1015 (2d Cir. 1987); People of State of Illinois v. Life of
Mid-America Ins. Co., 805 F.2d 763 (7th Cir. 1986); Pfizer,
Inc. v. Lord, 522 F.2d 612 (8th Cir. 1975). Even if the
Philippines did not have standing to sue in parens patriae,
however, it would still have standing under RICO to sue
for damages to its treasury, and the District Court would
still have had subject matter jurisdiction to enter the
preliminary injuction. Thus, neither the District Court
nor the Ninth Cireuit had any need to decide whether the
Philippines had standing to sue in parens patriae in
ruling on the preliminary injunction. If that issue ever
becomes relevant, it ean be resolved in the first instance
i it, -
25
by the courts below. There is no reason for this Court to
grant certiorari to decide it now.
Finally, Petitioners urge the Court to grant certiorari
to decide whether a foreign government should be denied
standing to sue for treble damages under RICO, even
though it has similar standing under the antitrust laws.
See Pfizer, Inc. v. Government of India, 434 U.S. 308
(1978). Petitioners contend that “the principal basis” for
this Court’s holding in Pfizer — that foreign governments
have standing to sue for treble damages under the anti-
trust laws — was “an acknowledgement that a state [or
foreign government] had no alternate remedy.” (Petition
at 24.) Petitioners then contend that Pfizer is distinguish-
able because state and foreign governments have means
under their own laws, other than federal treble damage
actions, to redress injuries caused by racketeering
activity.
This reading of Pfizer is incorrect. In Pfizer and in
Georgia v. Evans, 316 U.S. 159 (1942), this Court noted
that Congress did not provide state and foreign govern-
ments with remedies other than treble damages under the
Sherman Act, whereas it did provide the United States
Government with such other remedies. The Court never
suggested that it was permitting state and foreign gov-
ernments to claim treble damages because such govern-
ments did not have other remedies for the same conduct
under their own or other laws. Nothing in the Sherman
Act precludes state governments from outlawing anti-
competitive activity and giving themselves authority to
seek injunctive relief under their own laws. The point
made in Pfizer and Evans was that, because Congress had
not provided state and foreign governments with any
remedies other than those provided to private parties, the
Court could not conclude that Congress intended to
26
deprive those governments of the remedies provided to
private parties under the Sherman Act.
In fact, as the en banc opinion held, the reasoning of
this Court in Pfizer compels the conclusion that a foreign
government may sue for treble damages under section
1964(c) of RICO. In Pfizer, the defendants contended
that a foreign nation could not be a “person” entitled to
sue under Section 4 of the Clayton Act both because
“Ti]hey are foreign, and [because] they are sovereign
nations.” 434 U.S. at 313. This Court rejected both argu-
ments. With respect to the fact that the plaintiff was
foreign, the Court noted both that a foreign corporation is
entitled to sue, and that the antitrust laws extend to trade
“with foreign nations.” 434 U.S. at 313. While RICO’s
definition of “person” (unlike the Clayton Act definition)
does not expressly include foreign corporations, its lan-
guage is actually broader (“any entity”) than that of the
antitrust laws, and plainly encompasses “foreign” as well
as “domestie” entities. See Sedima, S.P.R.L. v. Imrez
Company, Inc., supra (plaintiff a Belgian corporation).
Moreover, RICO extends to “foreign commerce” as well
as interstate commerce, in the same way that the antitrust
laws extend to trade “with foreign nations.” 18 U.S.C.
§ 1962.
The Court in Pfizer added that exclusion of foreign
plaintiffs from the class of “persons” entitled to sue
would defeat the two purposes of the Clayton Act: “to
deter violators and deprive them of ‘ “the fruits of their
illegality” ’ and ‘to compensate victims of antitrust viola-
tions for their injuries.’ ” 434 U.S. at 314. The purposes of
section 1964(c) of RICO are the same, to deter infiltra-
tion of legitimate enterprises by racketeers, by encourag-
ing private actions to “fill prosecutorial gaps,” and to
compensate those injured by such activity. Sedima, supra,
27
473 U.S. at 494-95; Turkette, supra, 452 U.S. at 593. To
deny RICO standing to foreign plaintiffs would defeat
these purposes by permitting a racketeer to escape full
liability for his illegal actions and by denying compensa-
tion to certain of his victims, merely because they happen
to be foreign. See Pfizer, supra, 434 U.S. at 314-15.
This Court in Pfizer wrote, in language equally applica-
ble to RICO:
This Court has long recognized the rule that a foreign
nation is generally entitled to prosecute any civil claim
in the courts of the United States upon the same basis as
a domestic corporation or individual might do. “To
deny him this privilege would manifest a want of
comity and friendly feeling.” To allow a foreign
sovereign to sue in our courts for treble damages to
the same extent as any other person injured by an
antitrust violation is thus no more than a specific
application of a long-settled general rule. To exclude
foreign nations from ihe protections of our antitrust
laws would, on the other hand, create a conspicious
exception to this rule, an exception that could not be
justified in the absence of clear legislative intent.
434 U.S. at 318-19 (emphasis added) (citations omitted).
The same is true of Petitioners’ effort to deprive the
Philippines of standing to sue under RICO.”
Petitioners contend that enforcement of RICO by the District
Court in this case would somehow constitute “an unwarranted en-
forcement of foreign penal laws.” (Petition at 25-26.) RICO, whether
penal in nature or not, is not a foreign law. Moreover, in order to
prevail on its RICO claims, the Philippines will be required to prove
RICO predicate acts, each of which involves a violation of United
States, not Philippine, law.
28
CONCLUSION
For the foregoing reasons, Respondent respectfully
prays that the Petition for a Writ of Certiorari be denied.
Dated: March 31, 1989
Respectfully submitted,
RONALD L. OLSON
(COUNSEL OF RECORD)
ALAN D. BERSIN
BRADLEY S. PHILLIPS
JOSEPH D. LEE
MICHAEL R. DOYEN
MUNGER, TOLLES & OLSON
355 South Grand Avenue
Los Angeles, California 90071
(213) 683-9100
MaTEo A. T. CAPARAS
PRESIDENTIAL COMMISSION ON
GooD GOVERNMENT
REPUBLIC OF THE PHILIPPINES
555 Fifth Avenue
New York, New York 10036
(212) 869-4721
la
Case No. CIV 86-3859
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
THE REPUBLIC OF THE PHILIPPINES,
Plaintvff,
Vv.
FERDINAND E. MARCOS, an individual; IMELDA R.
MARCOS, an individual; GREGORIO ARANETA, an individ-
ual; RAMON AZURIN, an individual; ANTONIO O.
F'LOIRENDO, an individual; DiosDADO C. ORDONEZ, an
individual; KRODO PROPERTIES, N.V., a Netherlands
Antilles Corporation; CALMO HOLDINGS, N.V., a Nether-
lands Antilles Corporation; ANCOR HOLDINGS, N.V., a
Netherlands Antilles Corporation; AL DJEBEL CORPORA-
TION, a Grand Cayman Corporation; LLOYDS BANK OF
CALIFORNIA, a California corporation,
Defendants.
Complaint for Damages, Injunctive Relief, Accounting,
a Constructive Trust, and Other Equitable Relief for
1. Violations of the Racketeer Influenced Corrupt
Organizations Act (“RICO”), 18 U.S.C. 1961 et seq.;
2. Conversion; 3. Fraud; 4. Constructive Fraud;
5. Constructive Trust; 6. Breach of Implied Contract;
7. Quiet Title; 8. Accounting; 9. Subrogation.
Filed June 16, 1986
DEMAND FOR JURY TRIAL
2a
SEVERINA B. RIVERA
PRESIDENTIAL COMMISSION
ON GooD GOVERNMENT
REPUBLIC OF THE PHILIPPINES
1617 Massachusetts Avenue, N.W.
Washington, D.C. 20036
(202) 485-1414
MUNGER, TOLLES & OLSON
RONALD L. OLSON
RICHARD B. KENDALL
JOSEPH D. LEE
FELicia A. MARCUS
612 South Flower Street
Los Angeles, California 90017
(213) 683-9100
JOSE Y. LAUCHENGCO, JR.
2503 West Beverly Boulevard,
Suite 4
Los Angeles, California 90057
(213) 387-1339
Attorneys for Plaintiff
The Republic of the Philippines
Pe — ee ee ee ee a
3a
Plaintiff THE REPUBLIC OF THE PHILIPPINES
hereby files its complaint against the above-named de-
fendants, and, demanding a trial by jury in conformity
with Rule 38(b) of the Federal Rules of Civil Procedure
and Rule 3.4.10.1 of the Local Rules of this United States
District Court, complains and alleges as follows:
INTRODUCTION
1. This is a civil action to recover for wrongs commit-
ted by Ferdinand E. Marcos, his wife Imelda R. Marcos,
and others acting in concert and as co-conspirators with
them. During his twenty years as President of the Philip-
pines, Mr. Marcos systematically converted and caused to
be converted, to his own use and that of his friends,
family, and associates, money, funds, and other property
belonging to The Republic of the Philippines and its
people. Some of the assets thus fraudulently converted
originated in the United States, as the direct or indirect
product of various United States-funded or supported
programs of investment and assistance to the Republic of
the Philippines. Other assets originated in the Philippines
and were later fraudulently converted in the Philippines
or the United States. After Mr. Marcos and his accom-
plices and co-conspirators acquired the converted assets,
they caused these assets to be invested for the benefit of
Mr. Marcos, his accomplices, and their families and asso-
ciates, in Switzerland and in the United States. These
investments were made in numerous distinct enterprises,
including enterprises located in this judicial district.
Such investments were employed to conceal and facilitate
the frauds, conversions, and thefts perpetrated by Mr.
Marcos and his accomplices and co-conspirators.
4a
JURISDICTION
2. This Court has jurisdiction over the claims for relief
alleged herein pursuant te the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. §$§ 1961
et seq., and 28 U.S.C. § 1331. This Court has jurisdiction
over the remaining claims under State and foreign law by
virtue of the doctrine of pendent jurisdiction in that such
claims arise from a common nucleus of operative fact and
are so intertwined with the other matters pending before
this Court as to make the exercise of jurisdiction
appropriate.
VENUE
3. Venue of this action is proper in this judicial dis-
trict pursuant to 18 U.S.C. § 1391(d) in that all of the
defendants, except for Lloyds Bank of California
(“Lloyds Bank”), are aliens. Venue further obtains pur-
suant to 18 U.S.C. §1965(a) because certain of the
defendants, viz, Krodo Properties, N.V., Al Djebel Corpo-
ration, and Lloyds Bank, reside, are found, have agents or
transact their affairs in this judicial district. Venue fur-
ther obtains pursuant to 28 U.S.C. § 1391(b) in that the
claims arose in part in this judicial district.
PARTIES AND PARTICIPANTS
A. PLAINTIFF
4. The Republic of the Philippines (‘‘Philippines”’) is a
sovereign state recognized by the Government of the
United States of America. The Philippines was formerly
subject to the rule of Mr. Marcos, during which time most
of the acts complained of occurred.
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5. The Philippines has standing to bring this complaint
and sues:
(a) In its own right, as the victim of the Defendants’
unlawful acts, conspiracies, schemes, and acts of racke-
teering; and
(b) As the representative of its people, who were vic-
timized by Defendants’ unlawful acts, conspiracies,
schemes, and acts of racketeering.
B. DEFENDANTS
6. Ferdinand E. Mareos (Mr. Marcos) was the Presi-
dent of the Philippines from in or about November, 1965
until his flight from the Philippines on or about February
25, 1986. His salary as President was approximately U.S.
$5,600 per year. Despite Mr. Marcos’ relatively small
annual income from legitimate sources, Mr. Marcos, while
occupying the Presidency, accumulated a net worth ex-
ceeding $1,550,000,000.00 ($1.55 billion). At least $4.8
million of this amount is presently located in California,
approximately $7 million is located in the State of Hawaii,
approximately $50 million is located in the State of New
York, and approximately $1.5 billion is located in Switzer-
land. Mr. Mareos currently is located at a residence in
Honolulu, in the State of Hawaii.
7. Imelda R. Marcos (“Mrs. Marcos”) is the wife of
Ferdinand E. Marcos; she conspired, aided and abetted,
and participated with him in a culpable manner in the
unlawful activities alleged in this complaint. Some of the
funds illegally diverted, transported, and/or invested are
eurrently held in Mrs. Marcos’ name. She resides with Mr.
Marcos in Honolulu, in the State of Hawaii.
8. Ramon Azurin (“Azurin’) and Gregorio Araneta
(‘‘Araneta”) are the nominees and agents of Mr. Marcos
6a
who declared in Mr. Marcos’ behalf, upon their entry into
the United States in the company of Mr. Marcos, approxi-
mately $7,000,000.00 ($7 million) in currency, securities,
and property consigned to Mr. Marcos, which property is
presently being detained by the United States Bureau of
Customs.
9. Antonio O. Floirendo (“Floirendo’”’) and Diosdado
Ordonez (“Ordonez”) are managing directors and agents
for Calmo Holdings, N.V. (“Calmo Holdings’) and
Krodo Properties, N.V. (‘“Krodo Properties”), both
Netherlands Antilles corporations. Calmo Holdings is
located in and has its principal place of business at
Ordonez’s home in West Orange, New Jersey. Krodo
Properties is located in and has its principal place of
business in Century City, California. Krodo Properties
now holds a $4 million beneficial interest in a trust deed
secured by property located at 1085 Summit Drive, Bev-
erly Hills, California (“Beverly Hills Property’), whose
legal description is as follows:
Lot 1 of Tract No. 20373, as per map thereof re-
eorded in Book 563, pages 1 and 2 of Maps, in the
Office of the County Recorder of Los Angeles,
County, except that portion thereof described as
follows: Beginning at the southwesterly corner of
said Lot 1; thence southeasterly along the southwest-
erly line of said Lot sixty-four (64.00) feet to the
most southerly corner of said Lot; thence northeast-
erly along the southeasterly line of said Lot twelve
(12.00) feet; thence northwesterly in a direct line to
the point of beginning.
Floirendo is also the managing director and Ordonez is
the attorney-in-fact, agent, and employee, of Ancor Hold-
ings, N.V. (“Aneor’’), a Netherlands Antilles corporation,
which owns the Lindenmere Estate in Long Island, New
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York. Ordonez and Floirendo control and manage Ancor,
Calmo Holdings, and Krodo Properties for the benefit of
Mr. and/or Mrs. Marcos and have conspired with, aided
and abetted, and participated with Mr. and Mrs. Marcos
in the creation of an elaborate network of secret corpora-
tions and other entities to conceal and facilitate the
frauds, conversions, and thefts alleged in this complaint.
Ordonez and Floirendo are currently located in New York
or New Jersey.
10. Al Djebel Corporation (“Al Djebel’’) is a corpora-
tion organized under the laws of the Cayman Islands,
with its principal place of business in Los Angeles, Cali-
fornia. Al Djebel received a grant deed to the Beverly
Hills Property on or about March 10, 1986, thirteen days
after Mr. Marcos fled from the Philippines to Honolulu,
Hawaii.
11. Lloyds Bank of California (“Lloyds Bank’) is a
corporation organized under the laws of California, with
its principal place of business in California. Lloyds Bank
holds and manages at least twe accounts containing
assets which were illegally acquired and maintained by
Mr. and/or Mrs. Marcos and/or ineir agents and/or their
co-conspirators. Krodo properties, Calmo Holdings,
Ancor, and Al Djebel, but not Lloyds Bank, are collec-
tively referred to herein as “the Corporate Defendants.”
COMMON ALLEGATIONS
A. FRAUD AND CONVERSION OF FUNDS
12. During his twenty years as President of the Philip-
pines, Mr. Marcos used his position of power and author-
ity to convert and cause to be converted, to his use and
that of his friends, family, and associates, money, funds,
and property belonging to the Philippines and its people.
8a
Defendants Mrs. Mareos, Azurin, Araneta, Floirendo,
Ordonez, the Corporate Defendants, and others presently
known and unknown to Plaintiff, participated, aided and
abetted, and conspired with Mr. Marcos in the commis-
sion of these massive wrongs upon his country and people.
13. During the twenty years of his Presidency, Mr.
and Mrs. Marcos filed tax returns with the Philippines
Bureau of Internal Revenue showing their joint legitimate
income from various limited and defined sources, includ-
ing Mr. Marcos’ $5,600 annual Presidential salary. Ac-
cording to these tax returns, Mr. and Mrs. Marcos’
eumulative after-tax income for the calendar years 1965
through 1984 totalled 6,748,573 Philippine pesos, which at
current exchange rates equals approximately $337,429.00.
See Declaration of Benigno C. Alas, Jr., CPA (attached to
the accompanying exhibits as Exhibit “A’’).
14. During the same period in which Mr. and Mrs.
Marcos claimed after-tax earnings of $337,429, they
amassed a personal fortune exceeding $1.55 billion, virtu-
ally all of which Mr. and Mrs. Marcos obtained by fraudu-
lently converting monies, funds, and properties of the
Philippines and its people to their personal use and that
of their friends, family, and associates.
15. Immediately following Mr. Marcos’ flight from the
Philippines, President Corazon C. Aquino issued Execu-
tive Order No. 1 (Exhibit “B”), establishing the Presi-
dential Commission on Good Government
(“Commission”). The purpose of the Commission is to
recover the “vast resources of the government” of the
Philippines “ill-gotten” by Mr. Marcos. The commission
was established because of the evidence in the possession
of the government of the Philippines that vast sums of
money were improperly or illegally used or diverted by
Mr. Marcos. See Executive Order No. 2 (Exhibit “C’’).
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9a
B. DIVERSION OF FUNDS TO SECRET SWISS
ACCOUNTS
16. During the period of Mr. Marcos’ Presidency,
Defendants Mr. and Mrs. Marcos accumulated, through
the fraud and conversion of funds set forth in Paragraphs
13 through and including 16 above, approximately $1.5
billion, which they caused to be deposited in various
Swiss banks under aliases or in the names of various shell
entities.
17. In at least one instance, Mr. and Mrs. Marcos used
the aliases William Saunders and Jane Ryan to establish
such an aceount.
C. DIVERSION OF FUNDS TO CALIFORNIA
18. Beginning on or before November 8, 1983, and
continuing until the present, Defendants Mr. and Mrs.
Mareos, Floirendo, Ordonez, and the Corporate Defend-
ants participated in and conspired to effect an elaborate
scheme to invest in the Los Angeles real-estate market
some of the proceeds of Mr. Marcos’ massive scheme to
defraud and to obtain money and property by false
pretenses, promises, and representations from the Philip-
pines and its people.
19. On or about November 8, 1983, in Los Angeles
County, California and elsewhere, Defendants Mr. and
Mrs. Mareos, Floirendo, and Ordonez caused Calmo
Holdings to aequire a $4,000,000 beneficial interest under
a Deed of Trust and Security Agreement issued on the
Beverly Hills Property. Thereafter, on or about November
14, 1983, in furtherance of the fraud deseribed in Para-
graph 18 above, these Defendants and Calmo Holdings
eaused the Los Angeles County Recorder’s Office to mail
Transamerica Title Company, in Los Angeles, California,
the officially-reeorded Deed of Trust and Security Agree-
10a
ment perfecting this $4,000,000 interest in the Beverly
Hills Property. See Deed of Trust and Security Agree-
ment (Exhibit “D’’).
20. On or about March 1, 1984, in New York, New York
and elsewhere, Defendants Mr. and Mrs. Marcos,
Floirendo, and Ordonez caused Calmo Holdings to assign
and transfer its $4,000,000 beneficial interest in the Deed
of Trust issued on the Beverly Hills Property to Defen-
dant Krodo Properties. Thereafter, on or about May 24,
1984, in furtherance of the fraud described in Paragraph
18 above, these Defendants and Krodo Properties caused
the Los Angeles County Recorder’s Office to mail the
officially-recorded Assignment of Deed of Trust to Defen-
dant Krodo Properties at 1900 Avenue of the Stars, Suite
2000, Los Angeles, California. See Assignment of Deed of
Trust (Exhibit “E’’).
21. On or about March 10, 1986, approximately thir-
teen days after Mr. and Mrs. Marcos’ flight from the
Philippines, Defendants Mr. and Mrs. Marcos, Floirendo,
Ordonez, and others known and unknown to Plaintiff
eaused Al Djebel to acquire title to the Beverly Hills
Property. Thereafter, on or about March 18, 1986, in
furtherance of the fraud described in Paragraph 18 above,
said Defendants and others known and unknown to Plain-
tiff caused the Los Angeles County Recorder’s Oftice to
mail a copy of the officially-recorded grant deed to the
Beverly Hills Property to Defendant Al Djebel Corpora-
tion at 11611 San Vicente Boulevard, Suite 10, Los
Angeles, California 90049. See Grant Deed (attached
hereto as Exhibit “F”’’).
22. At a time unknown to Plaintiff, but no later than
August 8, 1985, in furtherance of the fraud described in
Paragraph 18 above, Defendants Mr. and Mrs. Marcos
deposited or caused to be deposited by mailing or foreign
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wire transfer at least $787,972.80 with Defendant Lloyds
Bank in the name of Imelda R. Marcos, in two separate
accounts, numbered 4099657 and 5900020.
23. On or about August 8, 1985, Defendants Mr. and
Mrs. Mareos caused to be purchased, in the name of
Imelda R. Marcos, for $675,000, certain United States
Treasury Bills, which will mature on August 8, 1986 in the
amount of $700,000.00. These Treasury Bills are main-
tained in Lloyds Bank account number 4099657.
24. During the period beginning prior to August 8,
1985 and continuing to at least the date of this complaint,
Defendants Mr. and Mrs. Marcos caused Defendant
Lloyds Bank to establish an “LBC Auto Temp” Account
No. 5900020, which now holds approximately $112,922.17
in the name of Imelda R. Mareos. During such time
period, in furtherance of the fraud described in Para-
graph 18 above, Defendants Mr. and Mrs. Marcos have
eaused Defendants Lloyds Bank to mail periodic state-
ments showing the account balance as well as interest
eredited to the account.
D. FLIGHT TO HAWAII WITH DIVERTED
PROPERTY
25. On or before February 25, 1986, in preparation for
Defendants Mr. and Mrs. Mareos’ impending flight from
the Philippines, Defendants Mr. and Mrs. Marcos caused
to be gathered vast amounts of currency, negotiable
instruments, and easily-transportable property, valued at
approximately $7 million, which they had accumulated
during the twenty years of Mr. Marcos’ Presidency as a
result of their fraudulent schemes and conversions of
money, funds, and property belonging to the Philippines
and its people. They then caused this $7 million in
currency, negotiable instruments, and property (“booty’’)
l2a
to be loaded on board the airplane which transported
Defendants Mr. and Mrs. Marcos, Azurin, and Araneta to
Hawaii.
26. Upon entry in Hawaii, Mr. Marcos designated
Defendants Azurin and Araneta as his attorneys-in-fact
for the purpose of declaring the aforesaid $7 million in
booty to United States Customs and introducing it into
the United States. See Exhibits ‘“‘G” and “H”. The United
States Customs Service is currently detaining the $7
million in booty, but is due to return it to Defendants Mr.
Marcos or Azurin or Araneta on June 16, 1986.
FIRST CLAIM FOR RELIEF
(Against All Defendants Except Lloyds Bank
For Violations Of The Racketeer Influenced
And Corrupt Organizations Act, 18 U.S.C.
§§ 1962(c) and 1964(a) & (c))
27. Plaintiff realleges and incorporates herein by this
reference as though fully set forth the allegations of
Paragraphs 1 through and including 26 above.
28. During the period from in or about November
1965, until on or about February 25, 1986, the Philippines
existed as a sovereign government and thus constituted a
RICO “enterprise” within the meaning of 18 U.S.C.
§ 1961(4), as more fully described in Paragraph 29 below.
The Philippines engaged in, and its activities affected,
interstate and foreign commerce. Defendants Mr. Marcos,
Mrs. Mareos, Floirendo, Ordonez, and the Corporate
Defendants are each an “individual or entity capable of
holding a legal or beneficial interest in property” and, as
such, each constitutes a “person” within the meaning of
18 U.S.C. § 1961(3).
13a
29. (a) Beginning in or about November 1965 and
continuing until on or about February 25, 1986, Defend-
ants Mr. Marcos, Mrs. Marcos, Floirendo, Ordonez, and
the Corporate Defendants conducted, or participated di-
rectly or indirectly in the conduct of the affairs of the
Philippines through a pattern of racketeering activity,
within the meaning of 18 U.S.C. § 1961(1) (5), in violation
of 18 U.S.C. $ 1962(e).
(b) Alternatively, Defendants Mr. Marcos, Mrs.
Marcos, Floirende, Ordonez, and the Corporate Defend-
ants constituted individuals and corporations associated
in facet for a common purpose with an existence separate
and apart from the pattern of racketeering activity in
which they engaged. This association in fact constituted
an enterprise within the meaning of 18 U.S.C. § 1961(4).
(c) During the period from in or about November,
1965 through on or about February 25, 1986, Defendants
Mr. Marcos, Mrs. Marcos, Floirendo, Ordonez, and the
Corporate Defendants, being persons employed by or
associated with the enterprise described in Paragraph
27(a) above, conducted, or participated directly or indi-
rectly in the conduct of the affairs of that enterprise,
through a pattern of racketeering, within the meaning of
18 U.S.C. §1961(1)(5), in violation of 18 U.S.C.
§ 1962(c¢).
30. From in or about November, 1965, and continuing
until the present, Defendants Mr. Marcos, Mrs. Marcos,
F'loirendo, Ordonez, and the Corporate Defendants did
knowingly and willfully commit, and aid and abet in the
commission of, offenses against the United States that
also constitute acts of racketeering within the meaning of
18 U.S.C. § 1961. These offenses were committed as part
of a pattern of racketeering, in that they (a) consist of
two or more individual offenses constituting two or more
l4a
individual episodes, and (b) were committed with, the
express intention and common design and purpose of
converting money and property belonging to the Philip-
pines and its people to the personal use and profit of Mr.
and Mrs. Marcos, and their friends, family, and
associates.
31. The pattern of racketeering alleged in Paragraph
30 above included the following acts:
(a) At various times during the period from on or
about November 1965 through on or about February 25,
1986, as more fully alleged in Paragraphs 18 through and
including 30 above, Defendants Mr. and Mrs. Marcos,
having devised or intending to devise a scheme or artifice
to defraud, or to obtain money or property by means of
false or fraudulent pretenses, representations, or
promises, for the purpose of executing such scheme or
artifice or attempting to do so, caused numerous wire
transfers in interstate and/or foreign cemmerce or
caused numerous mailings to be delivered by the United
States Postal Service to be sent and received, in violation
of 18 U.S.C. $§ 13841 and 1343, and defined as racketeer-
ing activity by 18 U.S.C. § 1961(1).
(b) On or about October 25, 1986, as more fully
alleged in Paragraphs 25 through and including 26 above,
Defendants Mr. and Mrs. Marcos, aided and abetted by
Defendants Azurin and Araneta, transported and caused
to be transported in foreign commerce goods, wares,
merchandise, securities, or money, having a value exceed-
ing $5,000.00, knowing the same to have been stolen or
taken by fraud from the Philippines and/or its people, in
violation of 18 U.S.C. § 2314, and defined as racketeering
activity by 18 U.S.C. § 1961(1).
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(ec) At various times during the period from on or
about November 1965 through on or about February 25,
1986, as more fully alleged in Paragraphs 9, 10, and 18
through and ineluding 21 above, Defendants Floirendo,
Ordonez, and the Corporate Defendants received goods,
wares, merchandise, securities, or money having a value
exceeding $500.00, which had moved in or were a part of
interstate or foreign commerce, knowing the same to have
been stolen or taken by fraud from the Philippines and/or
. its people, in violation of 18 U.S.C. § 2315, and defined as
racketeering activity by 18 U.S.C. § 1961(1). _
(d) At various times during the period from on or
about November 1965 through on or about February 25,
1986, as more fully alleged in Paragraphs 12 through and
including 30 above, Defendants Mr. and Mrs. Marcos,
Floirendo, Ordonez, and the Corporate Defendants con-
cealed goods, wares, merchandise, securities, or money
having a value exceeding $500.00, which had moved in or
were a part of interstate or foreign commerce, knowing
the same to have been stolen or taken by fraud from the
Philippines and/or its people, in violation of 18 U.S.C.
§ 2315, and defined as racketeering activity by 18 U.S.C.
§ 1961(1).
(c) On or about March 1, 1984, as more fully alleged in
Paragraph 20 above, Defendant Calmo Holdings sold or
disposed of its beneficial interest under the Deed of Trust
and Security Agreement in the Beverly Hills Property, a
security, which had moved in or been a part of interstate
or foreign commerce, knowing the same to have been
stolen or taken by fraud from the Philippines and/or its
people, in violation of 18 U.S.C. § 2315, and defined as
racketeering activity by 18 U.S.C. § 1961(1).
32. As a direct and proximate result of the individual
and the Corporate Defendants’ violations of 18 U.S.C.
16a
§ 1962(c), Plaintiff has suffered damages in an amount to
be determined at trial and presently estimated to be not
less than $1.55 billion. Plaintiff has been injured in its
business or property by reason of each Defendant’s RICO
violations and, pursuant to the Civil Remedy Provisions
of 18 U.S.C. §1964(e), is thereby entitled to recover
three-fold the damages it has suffered, together with its
costs of suit and reasonable attorneys’ fees.
33. By reason of the foregoing violations, Plaintiff is
entitled to equitable relief pursuant to 18 U.S.C.
$§ 1964(a) and (ce).
SECOND CLAIM FOR RELIEF
(Against All Defendants Except Lloyds Bank
For Violations Of The Racketeer Influenced
And Corrupt Organizations Act, 18 U.S.C.
§ 1962(a) and 1964(a) & (c))
34. Plaintiff realleges and incorporates herein by this
reference as though fully set forth the allegations in
Paragraph 1 through and including 26 above, as well as
the allegations of Paragraphs 28 through and including
33 above.
35. During the period from in or about November, 1965
through the present, the individual and the Corporate
Défegdants, having received income derived, directly or
indireetly, from the pattern of racketeering activity de-
scribed above, used and invested, directly or indirectly,
proceeds of income from said illegal racketeering activity
in various enterprises within the United States which
were and are engaged in, or the activities of which have
affected and do affect, interstate or foreign commerce, in
violation of 18 U.S.C. §1962(a). The investments in
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enterprises described in Paragraphs 19 through and in-
cluding 24 above included the following:
(a) The investment in the Beverly Hills Property and
Deed of Trust thereto (Paragraphs 19 through and in-
eluding 21);
(b) The investment in the Lloyds Bank’s accounts,
numbered 4099657 and 5900020 (Paragraphs 22 through
and including 24).
36. As a direct and proximate result of the individual
and the Corporate Defendants’ violations of 18 U.S.C.
§ 1962(a), Plaintiff has suffered damages in an amount to
be determined at trial and presently estimated to be not
less than $1.55 billion. Plaintiff has been injured in its
business or property by reason of each Defendant’s RICO
violations and, pursuant to the Civil Remedy Provisions
of 18 U.S.C. §1964(c), is thereby entitled to recover
three-fold the damages it has suffered, together with its
eosts of suit and reasonable attorneys’ fees.
37. By reason of the foregoing violations, Plaintiff is
entitled to equitable relief pursuant to 18 U-S.C.
§§ 1964(a) and (ec).
THIRD CLAIM FOR RELIEF
(Against All Defendants Except Lloyds Bank
For Violations Of The Racketeer Influenced
And Corrupt Organizations Act, 18 U.S.C.
§§ 1962(d) and 1964(a) & (ce))
38. Plaintiff realleges and incorporates herein by this
reference as though fully set forth the allegations of
Paragraphs 1 through and including 37 above.
39. Beginning on or about December 1965 and contin-
uing to the present, the individual and the Corporate
18a
Defendants combined and conspired together and with
each other to commit the aforementioned violations of 18
U.S.C. § 1962(a) and (ec) and thereby violated 18 U.S.C.
§ 1962(d). In furtherance of the conspiracy and to effect
the objeets thereof, the individual and Corporate Defend-
ants committed the following overt acts, among others, in
the Los Angeles County and elsewhere:
(a) On or before August 8, 1985, in Los Angeles,
California, Defendants Mr. and Mrs. Marcos caused to be
transmitted to, deposited with, and held by Lloyds Bank
at least $787,972.80;
(b) On or about November 8, 1983, in Los Angeles,
California, the individual and Corporate Defendants
eaused the acquisition of the beneficial interest in the
Deed of Trust to the Beverly Hills Property, and the
subsequent recordation of said interest in Los Angeles
County, California;
(ce) On or about March 10, 1986, in Los Angeles,
California, the individual and Corporate Defendants
eaused Al Djebel to acquire title to the Beverly Hills
Property, and caused the Grant Deed transferring said
title to be reeorded in Los Angeles County, California;
(d) On or about February 25, 1986, defendants Mr.
and Mrs. Mareos, Azurin, and Araneta caused the trans-
portation from the Philippines to Hawaii of the $7 million
in booty stolen or taken by fraud from the Philippines
and/or its people; and
(e) At various times beginning in or about November
1965 and continuing through the present, Defendants Mr.
and Mrs. Marcos caused to be transmitted approximately
$1.5 billion to Switzerland to be deposited in Swiss bank
accounts in the aliases of “William Saunders” and “Jane
Ryan.”
BAA 1 neh desea
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:
;
3
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19a
40. As a direct and proximate result of the individual
and Corporate Defendants’ violations of 18 U.S.C.
§ 1962(d), Plaintiff has suffered damages in an amount to
be determined at trial and presently estimated to be not
less than $1.55 billion. Plaintiff has been injured in its
business or property by reason of each Defendant’s RICO
violations and, pursuant to the Civil Remedy Provisions
of 18 U.S.C. § 1964(c), is thereby entitled to recover
three-fold the damages it suffered, together with its costs
of suit-and reasonable attorneys’ fees.
41. By reason of the foregoing violations, Plaintiff is
entitled to equitable relief pursuant to 18 U.S.C.
$$ 1964(a) and (ce).
FOURTH CLAIM FOR RELIEF
(Against All Defendants, Except Lloyds Bank, For
Conversion)
42. Plaintiff realleges and incorporates herein by this
reference as though fully set forth the allegations con-
tained in Paragraphs 1 through and including 41 above.
43. The individual and Corporate Defendants, and
each of them, have wrongfully converted, aided and abet-
ted, and caused to be converted, to their own use, and that
of their friends, families and associates, money, funds,
and property belonging to the Philippines and its people.
Such conversions have been for the benefit of the Defend-
ants and their families and associates, and to the detri-
ment of the true owners of the property, the Philippines
and its people.
44. Such acts of conversion included the following
acts, among others:
20a
(a) Defendants Mr. and Mrs. Marcos acquired control
over approximately $797,000 in money and funds belong-
ing to the Philippines and its people and caused said
money and funds to be transported to the United States,
to be deposited in Lloyds Bank account numbers 4099657
and 5900020, in Los Angeles, California, in the name of
and for the benefit of Mrs. Marcos; and
(b) The individual and Corporate Defendants acquired
eontrol over approximately $4,000,000 in money, funds,
and property belonging to the Philippines and its people
and caused it to be transported to Beverly Hills, Califor-
nia, to be invested in a Deed of Trust to the Beverly Hills,
Property, in the name of Calmo Holdings, and later
Krodo Properties, for the benefit of the individual and
Corporate Defendants.
45. The individual and Corporate Defendants unlaw-
fully, willfully, and knowingly did combine, conspire,
eonfederate, and agree together and with each other to
eonvert money, funds, and property belonging to the
Philippines and its people to their own use, and that of
their associates. In furtherance of the conspiracy and to
effect the objects thereof, the Defendants committed the
overt acts, among others, alleged in Paragraph 44 above.
46. As a direct and proximate result of Defendants’
acts of conversion, Plaintiff has suffered damages in an
amount to be determined at trial, and presently estimated
to be not less than $1.55 billion.
47. In doing the acts alleged herein, Defendants in-
tended to injure Plaintiff and acted with conscious disre-
gard for Plaintiff's rights. Defendants are guilty of
malice, and Plaintiff is therefore entitled to punitive
damages in the amount of $50 billion.
2la
FIFTH CLAIM FOR RELIEF
(Against All Defendants, Except Lloyds Bank,
For Fraud And Deceit)
48. Plaintiff realleges and incorporates herein by this
reference as though fully set forth the allegations con-
tained in Paragraphs 1 through and including 47 above.
49. During his twenty-year reign as President of the
Philippines, in addition to the acts of fraud detailed in
Paragraphs 12 through and ineluding 14 above and else-
where in this complaint, Defendant Mr. Marcos repre-
sented on countless occasions to the Philippines and its
people that he was governing and would govern fairly and
honestly, pursuant to his oath of office and the Constitu-
tion and Laws of the Philippines. He further made numer-
ous and frequent declarations to his people that he had
never taken money, property, or funds belonging to the
Philippines or its people for his own personal use, nor
that of his friends, family and associates.
50. While Mr. Mareos was President, he appointed
Mrs. Mareos as Governor of Manila, the wealthiest city in
the Philippines and its Capital City. Mrs. Marcos made
similar representations of honesty, integrity, and willing-
ness to act within and not above the laws to the people of
the Philippines residing in Manila.
51. On the many occasions that Mr. and Mrs. Marcos
made these representations to the Philippines and its
people, they knew said representations to be false. They
further intended that the Philippines and its people rely
on these misrepresentations and thereby permit Mr. and
Mrs. Marcos to remain in power and positions of author-
ity. They further intended that the people of the Philip-
pines would be deceived and not realize that Mr. and Mrs.
Mareos, and their accomplices, family, and associates
22a
were plundering the wealth of the country to enrich
themselves at the expense of the Philippines and its
people. Z
52. Plaintiff relied to its detriment on the representa-
tions of Mr. and Mrs. Marcos, and their accomplices, by
permitting them to remain in positions of power and
authority for twenty years and by allowing, through igno-
rance, the plunder of the country.
53. In the course of developing the elaborate scheme to
defraud set forth above and in Paragraphs 12 through
and ineluding 26 above, Mr. and Mrs. Mareos secured the
assistance of the remaining Defendants, as well as other
family and associates. The remaining individual and Cor-
porate Defendants unlawfully, willfully, and knowingly
did combine, conspire, confederate, and agree together
and with each other to facilitate, aid and abet, and
conceal the scheme and artifice to defraud, and to obtain
money and property by false representations and
promises, by enabling the diversions of funds, as de-
scribed in Paragraphs 16 through and including 17 and 18
through and including 24, and elsewhere. Such acts of
facilitation and concealment included as overt acts the
transactions described in Paragraph 44 above relating to
the Lloyds Bank funds and the Beverly Hills Property.
54. As a direct and proximate result of Defendants’
acts of fraud and deceit, Plaintiff has suffered damages in
an amount to be determined at trial, and presently esti-
mated to be not less than $1.55 billion.
55. In doing the acts alleged herein, Defendants in-
tended to injure Plaintiff and acted with conscious disre-
gard for Plaintiff's rights. Defendants are guilty of
malice, and Plaintiff is therefore entitled to punitive
damages in the amount of $50 billion.
0 DNA 4 TEN.
23a
SIXTH CLAIM FOR RELIEF
(Against The Mareos Defendants, For Constructive
Fraud)
56. Plaintiff realleges and incorporates herein by this
reference as though fully set forth the allegations con-
tained in Paragraphs 1 through and including 55 above.
57. Mr. Mareos as President, and Mrs. Mareos as
Governor of Manila, oceupied positions of trust and confi-
dence as to the government and people of the Philippines.
58. Mr. and Mrs. Marcos breached that trust and
confidence by committing numerous acts of fraud, deceit,
conversion, eivil conspiracy, acts of racketeering, and
other unlawful acts.
59. Plaintiff relied to its detriment on the integrity of
Mr. and Mrs. Marcos; it trusted and confided in Mr. and
Mrs. Marcos, and permitted them to remain in positions
of power and to conduct the affairs of the Philippines
virtually unchecked. As a direct and proximate result of
Defendants’ acts in breach of fiduciary duty, Plaintiff has
suffered damages in an amount to be determined at trial,
and presently estimated to be not less than $1.55 billion.
60. In doing the acts alleged herein, Defendants in-
tended to injure Plaintiff and acted with conscious disre-
gard for Plaintiff's rights. Defendants are guilty of
malice, and Plaintiff is therefore entitled to punitive
damages in the amount of $50 billion. ;
24a
SEVENTH CLAIM FOR RELIEF
(Against All Defendants, Including Lloyds Bank, For
Constructive Trust)
61. Plaintiff realleges and incorporates herein by this
reference as though fully set forth the allegations con-
tained in Paragraphs 1 through and ineluding 60 above.
62. Mr. and Mrs. Marcos, by virtue of their position as
President of the Philippines and Governor of Manila,
respectively, occupied positions of trust as to the Philip-
pines and its people. -
63. Mr. and Mrs. Marcos violated said trust by their
numerous acts of conversion, fraud, deceit, constructive
fraud, civil conspiracy, acts of racketeering, and other
unlawful acts.
64. As a result of these violations of trust, Mrs. Marcos
acquired the funds and property held in Lloyds Bank
account numbers 4099657 and 5900020.
65. As a further result of these violations of trust, Mr.
and Mrs. Marcos, and the remaining individual and Cor-
porate Defendants, acquired the Beverly Hills Property.
66. As a further result of these violations of trust, Mr.
and Mrs. Mareos acquired approximately $1.5 billion in
deposits in Swiss banks under the aliases “William Saun-
ders” and “Jane Ryan.”
67. As a further result of these violations of trust,
Defendants Mr. and Mrs. Mareos, Araneta, and Azurin
acquired the approximately $7 million in booty which they
transported to Hawaii on or about February 26, 1986.
68. It would be unconscionable for Defendants to re-
tain any of these funds or properties. Unless a construc-
tive trust is imposed as to these properties, Defendants
will be unjustly enriched at Plaintiff's expense.
25a
69. By reason of the foregoing, Defendants hold the
property set forth in Paragraphs 64 through and inelud-
ing 67 above, as well as other property obtained by means
. of fraud, deceit, conversion, breach of fiduciary duty, acts
of racketeering, and other unlawful acts, in a constructive
7 trust of Plaintiff.
EIGHTH CLAIM FOR RELIEF
(Breach of Implied Contract Against Ferdinand E.
Marcos)
70. Plaintiff realleges and incorporates herein by this
reference as though fully set forth the allegations con-
tained in Paragraphs 1 through and including 69 above.
71. In or about November, 1965, Mr. Mareos assumed
the office of the President of the Philippines. Before
doing so, he took the Oath of Office (Exhibit “I’”’).
72. By aecepting the duties and obligations imposed
by the oath, in consideration for the remuneration, finan-
eial and honorary, provided by Philippine law, Mr.
Mareos entered into an implied contract with the Philip-
pine government to use the powers of the Presidency
according to law, in good faith, and not for personal
aggrandizement.
73. By diverting funds owned by the Philippine gov-
ernment in the United States to his personal use as more
fully deseribed in Paragraphs 66 through and including
67 above, Mr. Marcos breached this contract.
74. As a result of said breach, the Plaintiff has suf-
fered damages in an amount to be determined at trial,
and presently estimated to be not less than $1.55 billion.
75. In doing the acts alleged herein, Defendants in-
tended to injure Plaintiff and acted with conscious disre-
26a
gard for Plaintiff's rights. Defendants are guilty of
malice, and Plaintiff is therefore entitled to punitive
damages in the amount of $50 billion.
NINTH CLAIM FOR RELIEF
(For Quiet Title)
76. Plaintiff realleges and incorporates herein by this
reference as though fully set forth the allegations con-
tained in Paragraphs 1 through and including 26 above.
77. Mr. and Mrs. Marcos, and the remaining individual
and Corporate Defendants, acquired properties, real and
personal, with funds stolen or taken by fraud from the
Philippines and/or its people. The properties herein re-
ferred to belong to the Piaintiff. The said Defendants
have no right, title, or lawful interest in the said
properties.
78. The properties are:
(a) Aeeounts held by Lloyds Bank of California in
the name of Imelda R. Marcos, specifically account
numbers 4099657 and 5900020.
(b) The beneficial interest in a trust deed to the
Beverly Hills Property legally described in Para-
graph 9 above, held in the name of Krodo Properties,
which corporation is owned and/or controlled by Mr.
and/or Mrs. Mareos or their accomplices or
eoconspirators.
(ec) The Beverly Hills Property, legally described
in Paragraph 9 above, held by Al Djebel, which
corporation is owned and/or controlled by Mr.
and/or Mrs. Marcos or their accomplices or
eoconspirators.
Pai) gee se
27a
(d) Booty worth $7 million transported by Mr.
and/or Mrs. Marcos and/or their nominees and/or
agents, Azurin and Araneta, from the Philippines to
the United States in February 1986, currently in the
custody of the United States Bureau of Customs.
TENTH CLAIM FOR RELIEF
(For An Accounting)
79. Plaintiff realleges and incorporates herein by this
reference as though fuily set forth the allegations of
Paragraphs 1 through and including 78 above.
80. The net worth of Mr. and Mrs. Marcos is in excess
of their declared legal sources of income.
81. Some of the funds currently held by Mr. and/or
Mrs. Marcos in the United States were misappropriated
from the Philippines and its people.
82. Some of the funds, negotiable instruments, and
personal property owned by Mr. and/or Mrs. Marcos is
currently held by Lloyds Bank.
83. Mr. and Mrs. Mareos have not accounted to the
Republie of the Philippines for the value of the money,
securities, and personal property of the Plaintiff taken by
these Defendants for their own use-and benefit. The other
individual and Corporate Defendants and Lioyds Bank,
have not accounted to the Republic of the Philippines for
the value of funds, negotiable instruments, and personal
property of the Plaintiff taken by Mr. and/or Mrs. Marcos
and held by these Defendants on behalf of Mr. and/or
Mrs. Marcos.
84. By reason of the foregoing, the Plaintiff is entitled
to an accounting.
28a
ELEVENTH CLAIM FOR RELIEF
(For Subrogation)
85. Plaintiff realleges and incorporates herein by this
reference as though fully set forth the allegations in
Paragraphs 1 through and including 84 above.
86. In conducting the affairs of the various enterprises,
ineluding but not limited to the Republic of the Philip-
pines and the associations in fact described in Paragraph
31 above, the individual and Corporate Defendants ac-
quired rights or claims for payment from third parties or
from each other. To the extent these Defendants have a
right or claim to a payment from third parties or from
each other, Plaintiff should be substituted in the place of
these Defendants as the equitable holder of such claim or
right under the doctrine of subrogation.
WHEREFORE, Plaintiff prays for judgment as
follows:
1. On the First Claim for Relief
(a) For compensatory damages according to proof,
trebled pursuant to 18 U.S.C. § 1964(c);
(b) For reasonable attorneys’ fees;
(c) For an order requiring the Defendants to disgorge
thermselves of any illegal profits and to divest themselves
of any interest in the Philippines;
(d) For other appropriate equitable relief;
(e) For costs of suit incurred herein; and
(f) For such other and further relief as the Court may
deem proper.
aS &
sabi Re
AeA Na ARS A MPRA ins tan ET PDS ig ea hs SO CON es
—————
nh tee: oes
29a
2. On the Second Claim for Relief
(a) For compensatory damages according to proof,
trebled pursuant to 18 U.S.C. § 1964(e);
(b) For reasonable attorneys’ fees;
(c) For an order requiring the Defendants to disgorge
themselves of any illegal profits and to divest themselves
of any interest in the Beverly Hills Property and the
Lloyds Bank accounts, numbered 4099657 and 5900020;
(d) For other appropriate equitable relief;
(e) For costs of suit incurred herein; and
(f) For such other and further relief as the Court may
deem proper.
3. On the Third Claim for Relief
(a) For compensatory damages according to proof,
trebled pursuant to 18 U.S.C. § 1964(e);
(b) For reasonable attorneys’ fees;
(c) For an order requiring the Defendants to disgorge
themselves of any illegal profits and to divest themselves
of any interest in the Philippines, the Beverly Hills
Property and the Lloyds Bank account numbers 4099657
and 5900020;
(d) For other appropriate equitable relief;
(e) For eosts of suit incurred herein; and
(f) For such other and further relief as the Court may
deem proper.
4. On the Fourth Claim for Relief
(a) For compensatory damages according to proof;
(b) For punitive and exemplary damages;
30a
(c) For reasonable attorneys’ fees;
(d) For equitable relief;
(e) For eosts of suit incurred herein; and
(f) For such other relief as the Court may deem
proper.
5. On the Fifth Claim for Relief
(a) For compensatory damages according to proof;
(b) For punitive and exemplary damages;
(ec) For reasonable attorneys’ fees;
(d) For equitable relief;
(e) For eosts of suit incurred herein; and
(f) For such other relief as the Court may deem
proper.
6. On the Sixth Claim for Relief
(a) For compensatory damages according to proof;
(b) For punitive and exemplary damages;
(c) For reasonable attorneys’ fees;
(d) For equitable relief;
(e) For eosts of suit incurred herein; and
(f) For such other relief as the Court may deem
proper.
7. On the Seventh Claim for Relief
(a) Fora constructive trust as to Lloyds Bank aceount
numbers 4099657 and 5900020;
(b) For a constructive trust as to the beneficial inter-
est in, and the title to, the Beverly Hills Property;
—
TTT CS tt deat a wae ae atone BB".
AMP eat, meteor ae
<n ADiniretet ite an rt wt SI
3la
(c) For a constructive trust as to assets held by Mr.
and Mrs. Marcos in Swiss banks;
(d) For a constructive trust as to booty transported by
the Defendants to Hawaii, currently in the custody of the
United States Bureau of Customs;
(e) For other appropriate equitable relief;
(f) For reasonable attorneys’ fees;
(g) For costs of suit incurred herein; and
(h) For such other relief as the Court may deem
proper.
8. On the Eighth Claim for Relief
(a) For eompensatory damages according to proof;
(b) For reasonable attorneys’ fees;
(ce) For costs of suit ineurred herein; and
(d) For such other relief as the Court may deem
proper.
9. On the Ninth Claim for Relief
For a judgment
(a) That Plaintiff is the owner in fee simple of the
Lloyds Bank accounts, deseribed in Paragraph 78(a)
above;
(b) That Plaintiff has been the owner in fee simple of
the Lloyds Bank accounts described in Paragraph 78 (a)
above since the accounts were opened and entitled to any
interest, dividends, or other earnings accrued thereon;
(ec) That Plaintiff is the owner of the beneficial interest
in the trust deed of the Beverly Hills Property, deseribed
in Paragraph 78(b) above;
32a
(d) That Plaintiff is the owner in fee simple of the
Beverly Hills Property described in Paragraph 78(b)
above; “
(e) That Plaintiff is the owner in fee simple of the
negotiable instruments and personal property described
in Paragraph 78(c) above; and
(f) That Plaintiff has been the owner in fee simple of
the negotiable instruments and personal property de-
scribed in Paragraph 78(d) above since a date to be
determined at trial, but not later than February 26, 1986,
and is entitled to any interest, dividends, or other earn-
ings accrued thereon.
(g) For reasonable attorneys’ fees;
(h) For ecosis of suit incurred herein; and
(i) For such other relief as the Court may deem
proper.
10. On the Tenth Claim for Relief
(a) For an accounting;
(b) For reasonable attorneys’ fees
(ec) For other appropriate equitable relief;
(d) For costs of suit herein; and
(e) For such other relief as the Court may deem
proper.
SE a
I
ee —
net)
.
33a
11. On the Eleventh Claim for Relief
(a) For a subrogation of any rights or claims for
payment acquired by the individual and Corporate De-
fendants from third parties or from each other;
(b) For reasonable attorneys’ fees;
(ce) For eosts of suit herein; and
(d) For such other relief as the Court may deem
proper.
DATED: June 16, 1986
PRESIDENTIAL COMMISSION ON
GooD GOVERNMENT
REPUBLIC OF THE PHILIPPINES
SEVERINA B. RIVERA
MUNGER, TOLLES & OLSON
RONALD L. OLSON
RICHARD B. KENDALL
JOSEPH D. LEE -
FELICIA A. MARCUS
JOSE Y. LAUCHENGCO, JR.
By
.
Riehard B. Kendall
Attorneys for Plaintiff
Republic of the Philippines
34a
VERIFICATION
I, RAFAEL FERNANDO, am the Representative and
Coordinator of the Presidential Commission on Good
Government with respect to all activities of the Commis-
sion on the West Coast of the United States. I have read
the foregoing complaint and know the contents thereof.
The same is true of my own knowledge, except as to those
matters which I know only upon information and belief,
and as to those matters, I believe them to be true.
I declare under penalty of perjury and under the laws
of the State of California that the foregoing is true and
correct.
Executed at Los Angeles, California on June 16, 1986.
/s/
RAFAEL FERNANDO
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA .
CouUNTY OF Los ANGELES
I am a citizen of the United States and a resident of or
employed in the City of Los Angeles, County of Los
| Angeles; I am over the age of 18 years and not a party to
the within action; my business address is 1706 Maple
Avenue, Los Angeles, California 90015.
On March 31, 1989, I served the within Brief in Opposi-
tion to Petition for a Writ of Certiorari in re: “Ferdinand
Marcos, Imelda Marcos vs. Republie of the Philippines”
in the United States Supreme Court, October Term 1988,
No. 88-1431; on all parties interested in said action, by :
placing one true copy thereof enclosed in a sealed envel-
ope, with postage thereon fully prepaid, in the United
States Post Office mail box at Los Angeles, California,
addressed as follows:
John J. Bartko, Esq.
Bartko, Welsh, Tarrant
& Miller
One Maritime Plaza, #1440
San Francisco, CA 94111
richard A. Hibey, Esq.
Anderson, Hibey, Nauheim
& Biair
1708 New Hampshire Avenue
Washington, D.C. 20009
Attorneys for
Ferdinand E. Marcos
Imelda R. Marcos
Ramon Azurin
John J. Stumreiter, Esq.
Rosenfeld, Meyer & Susman
9601 Wilshire Blvd., 4th Fir.
Beverly Hills, CA 90210
Attorneys for
Ancor Holdings, N.V.
Diosdado C. Ordonez
Calno Holdings, N.V.
Antonio O. Floirendo
Joseph A. Ball, Esq.
Ball, Hunt, Hart, Brown &
Baerwitz
211 E. Ocean Blvd.
Long Beach, CA 90802
Attorneys for
Al Djebel Corporation
Robert P. Khoury, Esq.
612 S. Flower Street, #803
Los Angeles, CA 90017
Attorneys for
Lloyds Bank of California
Donald C. Smaltz, Esq.
Morgan, Lewis & Bockius
801 S. Grand Avenue, 21st Fr.
Los Angeles, CA 90017
Attorneys for
California Overseas Bank
Roberto S. Benedicto
Tom Garcin, Esq.
Stutman, Treister & Glatt
3699 Wilshire Blvd., #900
Los Angeles, CA 90010
Attorneys for
Krodo Properties, N.V.
All parties required to be served have been served.
I declare under penalty of perjury, that the foregoing is
true and correct.
Executed on March 31, i989, at Los Angeles, California
ef Bordon. Joat!
J. GORDON HOOPER
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.