Subject: Re: Attorney Client Communication/Work Product confidential and privileged
From: "Jim Bucknam" <[email-masked]>
To: "Louis Freeh" <[email-masked]>
Cc: "Gabriel Popoviciu" <[email-masked]>, <[email-masked]>, "Rob Walker" <[email-masked]>, <[email-masked]>, <[email-masked]>, <[email-masked]>
Date: Sun, 10 Jul 2016 17:40:13 +0300

Privileged and Confidential
Attorney Work Product

Thank you, Louie.

Jim

Sent from my iPhone

> On Jul 10, 2016, at 5:09 PM, Louis Freeh <[email-masked]> wrote:
>
> Attorney Client Communication/Work Product confidential and privileged
>
> Dear All
>
> Good morning.
>
> Gabriel and I had lunch here today and reviewed both the plans for
> this week as well as the 6/15/17 decision by the Constitutional Court
> relating to Article 246, et al, of the Criminal Code (the provision
> which controls the 'Abuse of Power' provision and its legal elements).
>
> Gabriel will return to Bucharest today and meet with our team there
> tomorrow. The plan is to study the facts and circumstances of this
> case and create a factual 'white paper' which sets forth both the
> relevant exculpatory evidence, as well as the lack of credible
> evidence here to support a conviction. In this regard transcripts,
> witness statements and documentary evidence will be studied and
> analyzed.
>
> This 'White Paper' will be the basis for presenting our case/request
> for relief to the relevant Romanian authorities--as well as to third
> parties and banks--which have started to pressure Gabriel and his
> businesses as a result of the recent conviction.
>
> We will need the legal opinions of Prof Mico and Andreia on the
> 6/15/16 opinion by the Constitutional Court, but I believe that the
> decision should directly and positively impact our case. The judges
> found that the main element of  the criminal statute (Abuse of Office)
> upon which our conviction is based is vague and therefore creates
> "unpredictability," "imprecision" and "lack of clarity" for potential
> defendants (Par. 54).
>
> For example, the judges noted that prosecutors have construed the
> statutory phrase "inefficiently" (the statutory provision proscribes a
> public 'clerk' not to "inefficiently fulfill") in a manner "which is
> known only by the case prosecutor"(Par 14). In sum, the judges found
> that the sole and discretionary interpretation of this material
> element does not provide  a defendant with fair notice, or require an
> intent (or conduct) to "breach a law."
>
> The judges seem to conclude by ruling that the "shall inefficiently
> fulfill" element of the statute must be interpreted to mean that the
> defendant must actually be "breaking [a] law" with some objective
> conduct (eg., "prefiguring any benefit for himself or for any other
> individual in exchange of his abuse or inefficient conduct" (Par. 13),
> and thus the judges seem to "reconfigure" a material element of the
> 'Abuse of Power' offense (Par. 76).
>
> So if the 6/15/16 decision holds that the 'Abuse of Power' criminal
> offense now requires the public prosecutor to "expressly stipulate the
> element as related to which such inefficiency is being analyzed" (Par.
> 57), there needs to be proof of a particular criminal act or "breach
> of the law" by the defendant. In that case, our criminal conviction
> should be vacated and the matter either dismissed, or sent back to the
> lower court to be re-analyzed in light of the Constitutional Court's
> 6/15/16 decision---and the current charges then dismissed.
>
> However, rather than relying exclusively on the decision, we will also
> implement an overarching strategy which we discussed at lunch and will
> further analyze when we meet this week. Specifically, we will evaluate
> the timing of meeting with the relevant Romanian authorities and
> perhaps try to do so this week. Timing here is of the essence as we
> don't know how quickly the authorities will react to the court's
> decision. Also, the adverse impact of the conviction  on Gabriel's
> businesses, credit and reputation is very serious.
>
> I look forward to joining you this week in Bucharest.
>
> Safe travels and best regards,
> Louie
>
>
> Sent from my iPhone
>
>
> Sent from my iPhone
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