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在美代购豪车倒卖中国遭罚没,检方撤诉

更新时间:2015-4-3 10:05:11 来源:纽约时报中文网 作者:佚名

Prosecutors Ease Crackdown on Buyers of China-Bound Luxury Cars
在美代购豪车倒卖中国遭罚没,检方撤诉

A luxury car exporter’s nearly two-year legal battle to recover a Porsche Cayenne and $120,786 seized by United States authorities has ended with federal prosecutors in South Carolina agreeing to return the property and drop a civil forfeiture lawsuit.

为了夺回被美国当局查扣的一辆保时捷卡宴(Porsche Cayenne)和120786美元(约合75万元人民币)资金,一名豪华汽车出口商打了近两年的官司。现在官司结束了,南卡罗来纳州的联邦检察官同意退还那些财产,并撤销民事罚没诉讼。

The deal with the exporter, Alibek Turkayev, follows at least a dozen other similar settlements. In nine states, federal prosecutors have reached agreements with other small companies involved in buying luxury cars in the United States and reselling them overseas, mainly in China, for a big profit.

在与这位名叫阿力别克·图尔卡耶夫(Alibek Turkayev)的出口商达成妥协之前,已经发生了至少十几宗类似的和解案例。九个州的联邦检察官都与其他小公司达成了协议。这些公司为了赚取巨额利润,在美国购买豪车,再将其转卖至海外,主要是中国。

In many of those cases, federal authorities in South Carolina, Florida, Georgia and Ohio settled the disputes by returning all of the seized cars. In one of the bigger settlements, federal prosecutors in South Carolina agreed in January to return 57 luxury cars and hundreds of thousands of dollars to Hong Chen and his Mayrock Group, which is based in Virginia.

在其中的许多案件里,南卡罗来纳、佛罗里达、乔治亚和俄亥俄州的联邦当局,同意退还所有被没收的车辆,对这些案件达成了和解。在规模较大的一宗和解案中,南卡罗来纳州的联邦检察官于今年1月同意将57辆豪车,连同数十万美元返还给陈宏(音)和他名下总部位于弗吉尼亚州的美石集团(Mayrock Group)。

The wave of settlements signals a retreat by federal prosecutors in a campaign against a niche business that seeks to exploit the demand for high-end vehicles in China, where cars that typically retail for $55,000 in the United States can be resold for as much as three times that price.

这一系列和解动作表明,联邦检察官打击一种偏门生意的行动偃旗息鼓了。这门生意力图利用中国国内对高端汽车的需求,在美国零售价通常为5.5万美元的汽车,在中国转手就可以卖出三倍的价钱。

American export companies were reselling tens of thousands of luxury cars a year to buyers in China and other countries before federal authorities began filing the civil forfeiture lawsuits in 2013 that brought much of the activity to a halt.

在联邦当局2013年开始提起民事罚没诉讼之前,美国的出口企业每年会向中国和其他国家的买家,转售数以万计的豪车。诉讼行动开始后,大部分转卖活动停止了。

The crackdown was driven largely by agents with the Secret Service and the Department of Homeland Security, who questioned whether these small export companies were violating federal law by using straw buyers — people paid small sums to buy cars — to conceal that the vehicles were being bought by people who had no intention of keeping them and were using cash from other people to make the acquisitions. Federal authorities have argued that using straw buyers is a deceptive practice that potentially deprives American consumers of a chance to buy the luxury cars and limits the ability of automakers to keep tight control over sales to domestic dealers and to foreign countries.

这场行动主要是由特勤局(Secret Service)和国土安全部(Department of Homeland Security)的特工推动的。他们怀疑,这些小型出口公司利用“稻草人买家”(straw buyers)的做法违反了联邦法律。这些被称为“稻草人买家”的代购者,付出少量资金来购置车辆,从而掩盖真实买家无意长期持有车辆,且购车资金来自他人的事实。联邦当局称,如此利用代购是一种欺诈行为,潜在地剥夺了美国消费者购买豪车的机会,而且使汽车厂商无法严格控制车辆流向国内经销商还是国外。

But the Justice Department recently advised its prosecutors to be more judicious in pursuing civil forfeiture actions — and even criminal cases —against car export companies and their owners.

但最近,司法部(Justice Department)建议自己的检察官,在对汽车出口公司及其老板提起民事罚没诉讼,乃至刑事诉讼的行动中,要更审慎一些。

“Over the past year, we have been engaged in a comprehensive review of the asset forfeiture program, including straw-buyer luxury export cases and other aspects of the program,” said Peter Carr, a Justice Department spokesman, in an emailed statement. “As a result of this ongoing review, the department is encouraging prosecutors to pursue civil and criminal sanctions for straw-buyer fraud cases that lead to other criminal violations, such as tax fraud, identify theft fraud and the submission of false export documents.”

“过去一年里,我们对资产罚没计划,包括代购豪车出口案及该计划的其他方面,进行了全面审核,”司法部发言人彼得·卡尔(Peter Carr)通过电子邮件发表声明称。“因为这项仍在进行的审核工作,司法部鼓励检察官,对构成其他刑事犯罪(如税务欺诈、身份盗窃欺诈和提交虚假出口文件)的代购诈骗案件,追究民事和刑事责任。”

In practice, that means using a straw buyer alone to buy a car may not be enough evidence for government agents to seize a vehicle from an export company, said people briefed on the matter who spoke on the condition of anonymity.

在操作层面上,这意味着单凭利用“稻草人买家”这一点,可能不构成政府机关没收出口公司车辆的充分证据,一些了解情况的人士在匿名条件下透露。

Since 2013, raids by the Secret Service have resulted in hundreds of Mercedes, Land Rovers, BMWs and Porsches being seized, many of them just as they were waiting to be loaded onto cargo ships. The Porsche bought by Mr. Turkayev’s company was among 14 luxury cars seized by the Secret Service in South Carolina and in Kearny, N.J. Also frozen by the federal government were millions of dollars in proceeds from the sale of cars to overseas buyers.

自2013年以来,在特勤局开展的突击搜查中,已有数百辆梅赛德斯-奔驰(Mercedes)、路虎(Land Rover)、宝马(BMW)和保时捷被没收,其中许多车辆是在等待装运到货船上时被没收的。图尔卡耶夫的公司购买的那辆保时捷,是特勤局在南卡罗来纳州和新泽西州卡尼(Kearny)没收的14辆豪车中的一辆。联邦政府还冻结了数百万美元的资金,这些钱都是向海外买家销售车辆时取得的。

Brian Leary, a Secret Service spokesman, declined to comment and referred inquiries to the Justice Department.

特勤局发言人布赖恩·利里(Brian Leary)拒绝发表评论,并表示应询问司法部。

The policy change stems from a broad review of the federal government’s asset forfeiture procedures by the Justice Department. In January, Eric H. Holder Jr., the United States attorney general, said his office was taking steps to make sure that civil forfeiture cases were brought in such a manner “to take the profit out of crime and return assets to victims, while safeguarding civil liberties.”

这种政策变动源于司法部对联邦政府资产罚没程序的广泛审查。今年1月,美国司法部长小埃里克·H·霍尔德(Eric H. Holder Jr.)表示,他的办公室正在采取行动,确保民事罚没案件在处理时,能够保证“追讨犯罪活动所得的利润,将资产还给受害者,并同时保障公民自由”。

Civil forfeiture is a powerful tool that prosecutors can use when pursuing cases involving money laundering, terrorism, drug dealing or other illegal activity. But it is a particularly punitive measure because the burden is often on the defendants to prove that any property and cash that are seized were obtained through lawful activities.

检方在追查涉及洗钱、恐怖主义、贩毒或其他违法行为的案件时,可以利用民事罚没这种强大的手段。但这种举措有很强的惩罚性,因为通常需要被告人来证明,被没收的资产和现金都是通过合法活动取得的。

Lawyers for Mr. Chen, in court papers, had said the seizures forced Mayrock to “cease operations, depriving Mr. Chen of the assets necessary to support his family, to fund his legal defense and to continue to pursue his livelihood.” Mr. Turkayev said the litigation led him to postpone plans to apply to business school.

陈宏的律师在法庭文件中写道,罚没举措迫使美石集团“停止运营,使陈宏失去了养家糊口、寻求法律辩护,及继续谋求生计所需的资产”。图尔卡耶夫表示,此次诉讼导致他推迟了申请商学院的计划。

A year ago, objections were raised by some car exporters that federal authorities were becoming embroiled in a largely commercial dispute. The car exporters had argued that if automakers had a problem with the reselling of luxury cars overseas, then they needed to put more pressure on car dealerships to insure that a vehicle was being sold to a person for their own personal use.

一年之前,一些汽车出口商提出异议,称联邦当局正在介入基本上属于商业纠纷的局面。汽车出口商辩称,如果制造商对将豪车转售至海外的行为感到不满,就需要向经销商施加更多压力,让它们确保汽车只出售给自用客户。

The Justice Department’s shift also coincides with a decision by the New York State attorney general, Eric Schneiderman, and the Department of Homeland Security to put aside a joint criminal investigation into the car export business in the metropolitan area, said several people briefed on that investigation who spoke on the condition of anonymity.

几名了解相关调查的匿名消息人士表示,司法部调整政策时,纽约州总检察长埃里克·T·施耐德曼(Eric T. Schneiderman)和国土安全部也决定搁置针对纽约市汽车出口企业的联合刑事调查。

But not all car export forfeiture cases are being dropped or settled quickly.

但并非所有汽车出口罚没案件,都会被撤诉或迅速达成和解。

One of the biggest car export forfeiture cases, a lawsuit filed in November 2013 by federal prosecutors in Manhattan that involved the seizure of 48 luxury vehicles, is still active. In January, Judge Katherine Polk Failla of the Federal District Court in Manhattan rejected a motion to dismiss the lawsuit. Judge Failla, in her ruling, said prosecutors had shown sufficient evidence of an “intent to defraud” by the car export company to permit the lawsuit to continue for now.

联邦检察官于2013年11月在曼哈顿提起的一宗诉讼仍未结案,在该案中有48辆豪车被没收,这是最大的汽车出口罚没案件之一。今年1月,曼哈顿联邦地区法院的法官凯瑟琳·波尔克·法伊拉(Katherine Polk Failla)否决了驳回诉讼的动议。法官法伊拉在判决书中写道,检方出具了充分的证据,表明汽车出口公司“有意欺诈”,因此案件目前仍在继续审理。

In some settlements, such as ones reached by federal prosecutors in New Jersey and Brooklyn, only half of the cars seized have been returned to the export companies.

在一些和解案件中,比如新泽西和布鲁克林的联邦检察官达成的和解协议,只有一半被没收的汽车归还给了出口公司。

Even some in the luxury car export business concede that some companies use items like fraudulent driver's licenses and fake shipping documents to either conceal what they are doing or avoiding paying state taxes.

甚至连豪华汽车出口公司的一些工作人员都承认,一些公司会利用伪造的驾驶执照和虚假的运输文件,掩盖他们的所作所为或逃避州税。

Still, lawyers who have been defending car exporting companies praised the Justice Department’s guidance on bringing new civil forfeiture cases.

但为汽车出口公司辩护的律师,对司法部有关提起新民事罚没诉讼的指导方针表达了赞许。

Ely Goldin, a lawyer with Fox Rothschild in Pennsylvania who represents Mr. Turkayev and the car exporter in the New York case before Judge Failla, said many of these actions were cases of “civil forfeiture run amok” and many of the car dealerships were aware that many of the cars would be destined for sale overseas. “The dealerships were not deceived,” he said.

图尔卡耶夫的代理律师、福罗律师事务所(Fox Rothschild)的埃利·戈尔丁(Ely Goldin)表示,很多举动都是“滥用民事罚没权”的行为,而且很多汽车经销商都知道,很多汽车会被运往海外销售。他说,“经销商没有受骗。”戈尔丁也是法伊拉法官在纽约审理的那宗案件中,涉案汽车出口商的辩护律师。

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