In the City of Buenos Aires, on the nineteenth day of November of the year two thousand and one, the members of the Second Economic Criminal Court, Drs. Luis Gustavo LOSADA, César Osiris LEMOS and Claudio Javier GUTIERREZ de la CARCOVA, under the presidency of the first of those named, assisted by the Secretary, Dr. Leticia Graciela DIAZ de CALAON, met in order to make known the factual and legal grounds of the judgment rendered in case no. 2, entitled: REQUIERE, Jorge Damián et al. s/inf. law 332 and 22415, regarding:
a) JORGE DAMIAN REQUIRES: DNI No. 20.470.574, Argentine, born on October 2, 1968 in the City of Buenos Aires, son of Adolfo and Hilda Guillermina Salses, single, commercial pilot, residing on Reseros Street between Balbín and Frers, Villa Udaondo, Ituzaingó District, PBA.
b) VICTOR ADRIAN QUADRINI: DNI No. 17.953.766, Argentine, born on November 10, 1966 in the City of Buenos Aires, married, commercial pilot, son of José Luis and Irene de Frusco, residing at Roque Saenz Peña 342, 8th floor, apt. B, San Isidro, PBA.
c) NOE FRANCO: LE No. 5.567.348, Argentine, born on May 10, 1930 in the City of Buenos Aires, son of Atilio and Cayetana Danielle, widower, customs agent, residing at Aranguren 564, 5th floor, apartment 17″, City of Buenos Aires.
d) MIGUEL ANTONIO COTRONEO: DNI nro. 4.532.495, Argentine, born on December 9, 1945 in the City of Buenos Aires, son of José Miguel and Antonia Sanz, married, customs broker, domiciled at Av. Juan Bautista Alberdi 2335 1st floor apt. 13 of the City of Buenos Aires.
e) RUBEN ALBERTO AMENDOLARA: DNI No. 16.723.463, Argentine, born on March 4, 1963 in the City of Buenos Aires, son of Eduardo Roberto and Susana Gómez, married, customs broker, residing at 38 Monteagudo Street, Sarandí, Avellaneda District, PBA.
f) CARLOS ROBERTO OCAMPO: DNI No. 13.411.037, Argentine, born on September 30, 1959 in the City of Buenos Aires, son of Osvaldo and Ofelia Elsa de Rose, divorced, customs broker, residing at Santo Domingo 3283, City of Buenos Aires.
g) RODOLFO DEL CASTILLO: LE No. 8.209.471, Argentine, born on May 19, 1950 in the City of Rosario, Province of Santa Fe, son of Rodolfo and Gerarda Nieves, divorced, graduate in foreign trade, domiciled at Terrero 1796, ground floor, apartment A, City of Buenos Aires.
h) ALEJANDRO MARIANO GACHE: DNI No. 14.375.810, Argentine, born on June 21, 1960 in the Province of Buenos Aires, son of Héctor Andrés and Elvira Beatríz Vazquez, businessman, residing at Chacabuco Street 2920, Olivos, PBA.
i) FERNANDO MATIAS ARANGUREN: DNI No. 11.773.676, Argentine, born on December 20, 1955 in the City of Buenos Aires, son of Juan Francisco and Sara Josefina Allemand, single, businessman, residing at Hipólito Irigoyen Street s/n, Tortugas, Pilar, PBA.
j) NESTOR JUAN GONZALEZ: LE No. 4.421.546, Argentine, born on October 30, 1943 in the City of Buenos Aires, son of Juan Bautista and Angela Rodriguez, married, businessman, residing at Juan María Gutierrez 2595, 2nd floor, City of Buenos Aires.
k) LUIS RIVEIRO RIVAS: DNI nro. 93.688.206, Spanish, born on June 8, 1951 in Pontevedra, Spain, son of José Luis and Josefa Joaquina Rivas, married, businessman, residing at Federico Lacroze 2321, 3rd floor, apartment A, City of Buenos Aires.
l) PEDRO DAVID SCHOJET: DNI nro. 16.342.417, Argentine, born on January 28, 1965 in the City of Buenos Aires, son of Isidoro and Anita Lachs, married, businessman, residing at 1584 Libertad Street, 2nd floor, apartment B of the City of Buenos Aires.
The following intervened in the debate on behalf of the accusing party: I) the Attorney General, Dr. Jorge A. PEZZANO RAVA, and II) the Federal Public Revenue Administration as plaintiff, who was represented by the attorneys and sponsors Drs. Nelson Pablo BRUNOTTO and Carlos LUCUY and as sponsoring attorney Dr. Gustavo PORTICELLA; and on behalf of the respective defenses: 1) Drs. Oscar H. COLOMBO and Inés DILERNIA with respect to the accused ARANGUREN and GACHE, 2) Dr. Adriana MARTILOTA LUGO with respect to the accused Del CASTILLO, 3) Drs. Marcos Oscar and Javier LITVACK with respect to the accused GONZALEZ and RIVEIRO RIVAS, 4) Drs. Bernardo RODRIGUEZ PALMA and Ignacio GARONA with respect to the accused SCHOJET; 5) Dr. Camila RODRIGUEZ CASELLA regarding the accused COTRONEO, 6) the Public Defender, Dr. Patricia M. GARNERO regarding the accused FRANCO, OCAMPO and AMENDOLARA and 7) Dr. Rodolfo B. ROLDAN regarding the accused QUADRINI and REQUIERE.
From whose records,
RESULTS:
1. That the Public Prosecutor before the Investigation, Dr. María del Carmen ROGLIANO, in her request recorded on pages 4212/4236 back, requested that the present case be elevated to trial in relation to the defendants in this case. This was due to the events that involved the entry into national territory through the Customs of the city of Buenos Aires, of one hundred and sixty-five vehicles of foreign origin, under the government of the direct import regime of 0km automobiles for personal use established by decree 2677/91 and subsequent resolutions of the Secretariat of Industry and Commerce, under the following import clearances: 36261-9/93, 81180-7/93, 64531-0/93, 36266-4/93, 74542-3/93, 16548-5/93, 297047-5/92, 275416-7/92, 64522-8/93, 180495-8/93, 32283-0/94, 208733-0/93, 135170-6/93, 135550-0/93, 190936-3/93, 17464-6/94, 155274-1/93, 160480-0/93, 13792-4/94, 208707-1/93, 32479-9/94, 32483-6/94, 45528-0/94, 16868-5/94, 11556-8/94, 11594-0/94, 11574-2/94, 150817-1/93, 147177-4/93, 141260-3/93, 43788-8/94, 26196-4/94, 11419-0/94, 11429-9/94, 43797-0/94, 43954-9/94, 43807-2/94, 32289-2/94, 15857-8/94, 29857-9/94, 18727-1/94, 59772-0/94, 152136-6/94, 208706-4/93, 128137-5/93, 146466-6/93, 136547-1/93, 141266-5/93, 141246-7/93, 179855-6/93, 141256-6/93, 135174-4/93, 170480-7/93, 141251-1/93, 185867-2/93, 170459-3/93, 209646-8/93, 141274-0/93, 212613-0/93, 208712-5/93 and 12401-6/94. The details are set out in Annex I, which is incorporated herein.
2. He analyzed the conduct displayed by the accused within the provisions of art. 2 of Law 23.771 (only with respect to REQUIERE and QUADRINI) and art. 864, paragraph b) of the Criminal Code with the aggravating circumstances of art. 865, paragraphs a), d) and f) of the Criminal Code. He emphasized that he was in the presence of sixty-one independent punishable acts (the material and historical autonomy of the actions coincides with each of the definitive import destinations involved), which concur in reality and/or materially with each other (art. 55 of the Criminal Code), and which, when assessed individually, present, under the perspective of the individualized norms mentioned above, a plural typicality and/or multiple typical framework (ideal concurrence) of crimes (art. 54 of the Criminal Code).
3. Thus, he framed the conduct of:
a) Jorge Damián REQUIERE and Victor Adrián QUADRINI as co-authors of the crimes described in order of the sixty-one alleged facts.
b) Miguel COTRONEO as material co-author of the eight criminal acts linked to import shipments nos. 36261-9/93, 64531-0/93, 36266-4/93, 74542-3/93, 16548-5/93, 297047-5/92, 275416-7/92 and 64522-8/93.
c) Noé FRANCO as material co-author of the two punishable acts linked to import dispatches Nos. 81180-7/93 and 180495-8/93.
d) Rubén Alberto AMENDOLARA como coautor material de los cincuenta y dos hechos punibles vinculados con los despachos de importación nros. 32283-0/94, 208733-0/93, 135170-6/93, 135550-0/93, 190936-3/93, 17464-6/94, 155274-1/93, 160480-0/93, 13792-4/94, 208707-1/93, 32479-9/94, 32483-6/94, 45528-0/94, 16868-5/94, 11556-8/94, 11594-0/94, 11574-2/94, 147177-4/93, 141260-3/93, 43788-8/94, 26196-4/94, 11419-0/94, 11429-9/94, 43797-0/94, 43954-9/94, 43807-2/94, 32289-2/94, 15857-8/94, 29857-9/94, 18727-1/94, 59772-0/94, 208706-4/93, 146466-6/93, 136547-1/93, 141266-5/93, 141246-7/93, 179855-6/93, 141256-6/93, 135174-4/93, 170480-7/93, 141251-1/93, 185867-2/93, 170459-3/93, 209646-8/93, 141274-0/93, 212613-0/93, 208712-5/93, 12401-6/94, 128137/93, 150817-1/93, 81180-7/93 y 180495-8/93.
e) Carlos Roberto OCAMPO como coautor material de los cincuenta hechos punibles vinculados con los despachos de importación nros. 32283-0/94, 208733-0/93, 135170-6/93, 135550-0/93, 190936-3/93, 17464-6/94, 155274-1/93, 160480-0/93, 13792-4/94, 208707-1/93, 32479-9/94, 32483-6/94, 45528-0/94, 16868-5/94, 11556-8/94, 11594-0/94, 11574-2/94, 147177-4/93, 141260-3/93, 43788-8/94, 26196-4/94, 11419-0/94, 11429-9/94, 43797-0/94, 43954-9/94, 43807-2/94, 32289-2/94, 15857-8/94, 29857-9/94, 18727-1/94, 59772-0/94, 208706-4/93, 146466-6/93, 136547-1/93, 141266-5/93, 141246-7/93, 179855-6/93, 141256-6/93, 135174-4/93, 170480-7/93, 141251-1/93, 185867-2/93, 170459-3/93, 209646-8/93, 141274-0/93, 212613-0/93, 208712-5/93, 12401-6/94, 128137/93 y 150817-1/93.
f) Rodolfo del CASTILLO as co-author of the two punishable acts related to import dispatches Nos. 59772-0/94 and 152136-6/94.
g) Alejandro Mariano GACHE and Fernando Matías ARANGUREN as necessary participants in the punishable acts related to import shipments Nos. 64522-8/93, 141256-6/93, 170480-7/93 and 147177-4/93.
h) Néstor Juan GONZALEZ and Luis RIVEIRO RIVAS as necessary participants in the eleven punishable acts related to import duties nos. 185867-2/93, 170480-7/93, 136547-1/93, 146466-6/93, 16868-5/94, 179855-6/93, 160480-0/93, 135174-4/93, 150817-1/93, 170459-3/94 and 141251-1/93.
i) Pedro David SCHOJET as a necessary participant in the criminal act related to import clearance no. 170480-7/93.
AND WHEREAS:
I. Conclusions of the parties during the debate.
4. That Dr. Carlos LUCUY, representative of the plaintiff, stated that REQUIERE and QUADRINI were charged with tax evasion of value-added tax in 1993. That said evasion had been carried out through the following modus operandi: 1) carrying out sales operations for which no receipt was provided, 2) providing hussar-type receipts or common receipts which were then returned by the buyers of the cars when they were delivered, 3) providing invoices or receipts for the provision of import services. Taking into account the provisions of art. 2 of Law 11683, the economic reality of the operations carried out had to be established, thus proving that REQUIERE and QUADRINI claimed to be managers in the importation of the cars that they actually imported for marketing to third parties. He referred to the testimonies of MARTIN and HERREROS who declared that both REQUIERE and QUADRINI were dedicated to selling cars. That from the testimonies given by GISER, PERALTA RAMOS, PERETTI, etc. it was determined that buyers were given hussar-type receipts at the time of receiving the deposit. The witnesses also said that they gave the money to the accused out of confidence, trust that fueled the modus operandi of the accused. That the testimonies showed that the purchasers of the vehicles wanted to buy a car, not import it, that they did not know that they would be importing a car, that they were not told anything about the different import regimes, and that they also forged their signatures on the respective import clearances. That this substitution of the importing subject showed a part of the simulation in which REQUIERE and QUADRINI acted jointly buying vehicles and selling them to individuals, that both defendants formed a de facto partnership, according to the elements collected during the debate, citing as an example that the witness ODORICO bought from REQUIERE but deposited a check in the name of QUADRINI, COHEN bought from REQUIERE but delivered the car to QUADRINI, at the port REQUIERE and QUADRINI were delivering the cars, HERREROS bought from QUADRINI however the billing was in the name of REQUIERE. That both defendants acted as a de facto partnership and under such legal form analyzed the facts. He referred to the increase in VAT that he considered applicable to the case, explaining that in some transactions, in addition to the 18% rate, there was an increase of 50% more, that is, 9% that was added, in accordance with the value added tax law no. 23349. That the testimonies of the purchasers of vehicles from 1994 did not include the fiscal claim. He stressed that during the raid in February, the defendants gave invoices to people who had previously purchased cars. He said that the tax claim amounted to the sum of 139.056 pesos in value added tax for the 43 fiscal year. That the reference prices used to determine the amount of such claim were lower than those on the market. That the fact should fall within the provisions of art. 2 inc. b) of Law 23.771. For his part, Dr. Nelson Pablo BRUNOTTO, in his capacity as representative of the plaintiff, added that he was faced with two instances of smuggling: a) on the one hand, the simulation by the importing party when documenting imports to the customs service with the unequivocal purpose of subjecting the merchandise to a tax treatment different from that to which it would have corresponded, avoiding the payment of additional advances on VAT and profits that should have been entered into Customs, designating third-party purchasers as the importers of the proceedings when in reality REQUIERE and QUADRINI were the true importers, and 2) through fraudulent under-invoicing determined in twenty-two import events (which corresponded to import dispatches whose no. in order were the no. 11, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, and 44), replacing the original invoice with another of lower value and purchasing from a different seller, INVESTRA and LAVENSEMAR, which replaced CATALANA DE RECAMBIOS. He said that REQUIERE and QUADRINI, who met because they both worked in the same field (airplane pilots), formed a structure to market foreign cars in the country. He thus highlighted three stages of the operations investigated: 1) the acquisition of vehicles abroad from different countries and different companies, 2) the nationalization of the cars by presenting the documentation to the customs service with the necessary participation of the dispatcher COTRONEO, the commissioners AMENDOLARA, OCAMPO and then the dispatchers Noe FRANCO and ACCATI. He said that customs control was violated by not complying with provisions 3431/91 and 3543/92 of the ANA. At this stage, Noe FRANCO, ACCATI and COTRONEO also collaborated by signing the import clearances, without which the clearance could not pass through Customs. He added that the car dealerships Trade Cars and G. A. Automotive, in the persons of GONZALEZ, RIVEIRO RIVAS, GACHE, ARANGUREN and SCHOJET, who sold their clients the cars that REQUIERE and QUADRINI imported. He referred to the evidence collected in the case. He referred to the testimonies given in the debate, from which it emerged that the majority of buyers wanted to buy a car, not import it, that they were unaware of the car import regulations, that they did not sign the respective dispatches, that they went to car dealerships because of publications in the newspaper. He said that REQUIERE and QUADRINI formed a de facto partnership, mentioning the statements of the witnesses in that regard. He stressed that OCAMPO and AMENDOLARA had the possibility of filling out the documents at will, emphasizing that the handwriting examination had determined that the signatures inserted in said documents were false. Regarding under-invoicing, he said that with the Spanish documentation and that added to the file, it had been possible to determine the replacement of invoices of lower value than that purchased. Regarding DEL CASTILLO, he stated that the due payment of the respective customs duties was confirmed in the import clearances whose number order numbers were 42 and 43 on the one hand, with under-invoicing having been accredited on the other hand as it emerged from the documentation of the respective offices. However, the subjective aspect with respect to DEL CASTILLO could not be proven since his participation was subsequent to the moment in which the merchandise had already been documented with a value different from that at which it had been purchased in the country of origin. For this reason there would be no charges against him. That in relation to Noe FRANCO, he described his conduct as reckless, taking into account the status of customs agent that the aforementioned person had, considering his statements to be true, having proven that he had no contact with REQUIERE and QUADRINI, his conduct falling within the provisions of art. 869 of the CA as author in relation to import clearances whose number. The orders were 2 and 10, requesting that he be sentenced to a fine of one thousand pesos and the accessory penalties provided for in art. 876 section 2 of the CA. In relation to COTRONEO, whose participation was determined in eight import dispatches, he considered that he could have represented the situation that was taking place, placing the intention of action in the accused's name as eventual fraud, imputing to him the commission of the crime of smuggling in the terms of art. 864 inc. b) of the CA requesting that he be sentenced to two years in prison plus the accessories of art. 876 – 1 of the CA. Regarding REQUIERE and QUADRINI, he considered them co-authors of the crime provided for in arts. 864 inc. b) and 865 inc. a del CA in 51 facts regarding the simulation of the importing subject (excepting from the imputed shipments the nos. 23, 31, 35 to 40, 42 and 43) and 22 cases of underbilling (dispatches nos. 11, 23 to 43) in ideal competition with the tax crime already mentioned by Dr. LUCUY. He requested that they be sentenced to six years in prison plus the accessories of art. 876 of the CA. Regarding OCAMPO, he described his conduct as a necessary participant in the crime of smuggling provided for in art. 864 inc. by 865 inc. ayf of the CA, requesting that he be sentenced to four years in prison and the accessories of art. 876 of the CA. This is in relation to the fifty facts that will be imputed to him that are materially present: forty facts regarding the importer's simulation (dispatches 11 to 61 except 23, 31, 35 to 40) and twenty-two regarding the fraudulent under-invoicing in dispatches 11 and 23 to 43. Regarding AMENDOLARA, who intervened in offices 2 and 10, he described his actions as within the provisions of arts. 864 inc. by 865 inc. a del CA requesting the sentences of two years and six months in prison plus the accessories of art. 876 apar. 1 of the CA. In relation to GACHE and ARANGUREN, he considered them necessary participants in relation to the importer's simulation, qualifying their actions within the provisions of art. 864 inc. by 865 inc. Regarding offices 3, 29, 51 and 53. He requested the sentences of two years and six months in prison plus the accessories of art. 876-1 the CA. In relation to GONZALEZ and RIVEIRO RIVAS, he described their conduct as necessary participants in the crime of smuggling, art. 864 inc. b of the CA, in relation to offices 18, 24, 28, 46, 47, 50, 51, 53, 54, 55 and 56. He requested the sentences of three years and six months in prison plus the accessories of art. 876-1 of the CA. Regarding SCHOJET, he said that he considered him a necessary participant in the crime of smuggling in the terms of arts. 864 inc. by 865 inc. a del CA requesting a sentence of two years in prison plus the accessories of art. 876-1 of the CA. The right to reply was exercised by Dr. Gustavo PORTICELLA, who referred to the figure of the increase for the purposes of determining the amount of the tax claim and referred to the import shipments that were taken into account for the purposes of determining the same, including all shipments for which the defendants had been investigated and their referral to trial had been requested; and Dr. Nelson Pablo BRUNOTTO who referred to the allegation of Dr. LITVACK stating that in his accusation he referred to the same facts and not to other facts different from those of the accused who had been investigated. That when he referred to the lack of invoices from the agencies, he was referring to the fact that the agents intentionally omitted the invoices so that the transactions were not recorded as sales. That the advice referred to by the defense was advice on a sale which was hidden due to the need of REQUIERE and QUADRINI not to show said operation. He alluded to the dispossession suffered by the DGI and the ANA due to the lower declared sale value of the cars.
5. That Mr. In his argument, the prosecutor described the facts that gave rise to this case, detailed the searches carried out in the case, and referred to the evidence collected during the investigation. He stated that the present investigation began on 15/12/93 following a complaint filed with the DGI by Gladys KOSCIUZCIK, who was requesting documentation that had not been delivered in a timely manner and that she needed because her car had been stolen. Following this complaint, an investigation into other car buyers began. This research is carried out within the rules provided for in Law 11.683. On February 9, 1994, the relevant judicial complaint was filed, requiring various search warrants. That in connection with said request, 17 searches were carried out, of which only six are of interest to the case. Mr. The Prosecutor highlighted that at fs. 2087, the DGI had requested authorization to summon people and continue with the administrative investigation within the parameters of Law 11.683. That there was no delegation of powers in this regard, but rather the procedure that corresponded to determine the tax loss and the taxpayer of the tax obligation was continued. That the incorporation of said minutes was not necessary as evidence, given that they are merely administrative acts carried out within the powers of the DGI. That at fs. 2062, the intervening Judge ordered that a separate case be formed, with respect to the defendants in these proceedings. The incompetence of the intervening court was declared on 6/10/94 and the investigation was transferred to the Economic Criminal Court. He pointed out that it is within the scope of this jurisdiction where testimonial, documentary, expert handwriting evidence and report evidence were collected. He clarified in reference to the investigation ordered by Mr. Judge "a quo" regarding the foreign companies that sold cars to Argentina, a task entrusted to the GITE group, that the information produced was duly clarified with the testimonies of BUSTOS HARM and BENITEZ That said reports allowed to expand the knowledge and prove the maneuver carried out regarding the under-invoicing carried out for the sale of the cars in question. He then carried out an analysis of the evidence collected during the investigation phase and of the evidence acquired during the trial phase as supplementary investigation. He stated that the maneuvers investigated in this case were carried out by a gang whose authors were REQUIERE AND QUADRINI with the necessary participation of agents, car salesmen and resellers (GACHE, ARANGUREN, GONZALEZ, RIVEIRO RIVAS and SCHOJET) who together with those captured the clients counting on the participation for customs documentation of the commission agents AMENDOLARA AND OCAMPO, together with the dispatchers COTRONEO and FRANCO. He added that he would independently evaluate the actions of Rodolfo DEL CASTILLO. He pointed out that according to the 61 facts that were required for the case to be brought to trial, we must make the following distinction. 1) the following were involved in customer acquisition: a) Pedro SCHOJET in case No. 53, b) Alejandro GACHE and Fernando ARANGUREN, in the facts cases No. 9, 29, 51,53, c) Néstor GONZALEZ AND Luis RIVEIRO RIVAS in the facts cases no. 18, 24, 28, 46, 47, 50,52, 53, 54, 55, 56. In the rest of the cases, REQUIERE AND QUADRINI acted in attracting customers, with the exception of facts No. 23, 31, 35, 36, 37, 39, 40, 42 and 43, in which a simple reading of the DI shows that the 8 and 3% VAT and profits taxes were paid, so there is no violation of the import regime, although they will be analyzed from the point of view of under-invoicing. 2) in the customs procedure: there we have the brokers and customs agents: 1) Rubén AMENDOLARA, the facts of case no. will be charged to him. 2 and 10, 2) Carlos OCAMPO will be charged with the commission of 50 acts, cases No. 11/42 and 44/61, 3) MIGUEL COTRONEO will be analyzed for his involvement in events 1, 3, 4, 5, 6, 7, 8 and 9 and regarding NOE FRANCO, cases No. 2 and 10. Mr. recalled. Prosecutor that regarding Gerónimo ACCATI, the criminal action had been extinguished due to the death of the accused. He then analyzed the conduct of RODOLFO del CASTILLO in light of the two facts that were charged against him according to the request for referral to trial of cases nos. 42 and 43, stating that from reading the import dispatches it emerged that the corresponding duties were paid. Therefore, the only thing left to analyze was whether in these cases he would have participated in the under-invoicing maneuvers. Although objectively it could be demonstrated with the Levansemar invoices that the under-invoicing was material, with respect to the accused CASTILLO, the subjective element was not proven. This is because the named person entered into an agreement with Julio GONZALEZ which was provided on fs. 3888 and who was the owner of the cars that had already entered the plaza, which shows that DEL CASTILLO only intervened in the entry into the plaza of cars that were already in the primary customs zone. In support of his statements, he pointed out all the evidence that existed regarding the arguments that demonstrated the nonexistence of the subjective element in the crime attributed to the aforementioned DEL CASTILLO, requesting that he be ACQUITTED OF GUILT AND CHARGES, WITHOUT COSTS. Regarding PEDRO DAVID SCHOJET, he participated in the commission of the crime, case No. 53. He was the person who sold the car to Alicia GISER, who made the sales negotiations, and who prepared a sales agreement. His contribution was to attract customers by making the buyer appear as the owner and importer of the vehicle, using personal data to enter it into the customs documentation that made it possible to import the car. It was demonstrated that SCHOJET had full knowledge of the operations carried out by QUADRINI. For this reason, he accused PEDRO DAVID SCHOJET as a necessary participant (arts. 45 CP and 886 of the CA) of the crime provided for in arts. 864, inc b) and 865, inc. a) of the CA, requesting based on the guidelines of arts. 40 and 41 of the Criminal Code, he will be sentenced to a suspended sentence of two years' imprisonment and the accessory penalties of art. 876 of the CA, paragraphs d) e) f) and h), requesting that the disqualification for the exercise of commerce be one year and limiting paragraph f) to be a member of security forces, WITH COSTS. Regarding ALEJANDRO GACHE AND FERNANDO ARANGUREN, they were charged as necessary participants in the events in case No. 9, 29, 51 and 53. The named are the only partners of the GA car agency AUTOMOTIVE, according to the social contract appearing on fs. 2796/7. This agency was dedicated to the sale of used cars until, through Quadrini's father, they expanded their business to include the sale of new imported cars. He made a detailed analysis of the evidence presented against them and came to the conclusion that both sold new imported cars without informing the clients that they were the importers of the same nor of the tax benefits that they would obtain under that regime. That said clients were left with the conviction that they were buying cars from the agency and not importing them. That both defendants knew how Requiere and Quadrini operated, since they did not provide sales invoices and provided personal data of clients so that import dispatches and invoices from abroad could be drawn up in their names. He analyzed each case individually, and with respect to the fact mentioned in case No. 53, who was charged as an necessary participant to SCHOJET, requested the ACQUITTAL of those named. He accused ALEJANDRO GACHE and FERNANDO ARANGUREN as necessary participants, art- 45 CPP and art. 886 of the CA, for three facts which materially concur, cases Nos. 9, 29, and 51, of the crime provided for in arts. 864, Inc. b) and 865, paragraph a) of the CA, requesting that each of them be sentenced in accordance with the guidelines mentioned in arts. 40 and 41 of the CP, to the penalties of 2 years and 8 months suspended, and the accessories provided for in art. 876 of the CA, subsections d) e) f) and h), with respect to the exercise of commerce to one year and six months, and limiting the provisions of subsection. f) to be members of security forces. WITH COASTS. He also requested regarding the facts cases nos. 22 and 28, referring to the imports made by JACOB and PATRICIO PERALTA RAMOS, the relevant testimonies will be extracted for submission to the intervening Examining Magistrate in order to investigate the responsibility of those named in said imports. Regarding NESTOR JUAN GONZALES and LUIR RIVEIRO RIVAS, he stated that they were brought to trial because they were charged with their participation in eleven events, cases no. 18, 24, 28, 46, 47, 50, 52, 53, 54, 55, and 56. He said that his participation would be limited to the violation of the import regime, not to under-invoicing, since there was no evidence against him in this regard. Below I will detail each of the facts, carefully analyzing the evidence against them, such as the testimony provided by the purchasers of the cars in question. He highlighted the case of witness PATRICIA GLORIA DAGRADI – case no. 46- that the aforementioned person who spontaneously presented documentation given by the agency during the hearing, among which was an invoice dated July 21, 1993 issued by the firm SODEXA No. 193-65-4339 in the name of DAGRADI. That this last invoice is of interest given that within the Import Clearance corresponding to this operation there was an invoice of the same number and date but issued in the name of QUADRINI. This proves the falsification of invoices that were presented to carry out imports. He also pointed out that the invoices for TRADE CARS and REQUIERE were issued long after the transactions with the clients had been carried out and before they had submitted their declarations to the DGI. . He concluded that the analysis of the eleven facts demonstrated a methodology that was used in the importation of these cars, they captured the clients, provided the data to REQUIERE and QUADRINI, it was shown that the clients wanted to buy cars and far from the intention of these people was to import them as they were also unaware of the regime under which they were brought and the consequent tax benefit. It was also shown that both RIVEIRO RIVAS and GONZALEZ knew the operation of REQUIERE AND QUADRINI. He highlighted on this basis the evidence that emerged from the documentation that was seized in said agency, mentioning, among others, handwritten papers on Folio 28 and on Folio 24, making it clear that those named had full knowledge that their clients who had gone to the agency to buy cars, were becoming importers of vehicles, without their approval. If they had not acquired the client and provided the data for customs paperwork, the operation in question could not have been carried out. For the reasons stated above, he accused NESTOR JUAN GONZALEZ and LUIS RIVEIRO RIVAS as necessary participants in the commission of eleven acts, which materially coincide, art. 55 CP, of the crime defined in arts. 864, Inc. b) and art. 865inc a) of the CA, requesting that each of those named be sentenced in accordance with the guidelines indicated by arts. 40 and 41 of the CP, to the penalties of three years and six months in prison, the accessories provided for in art. 876, inc d) e), f) and h) CA, the disqualification for the exercise of commerce being two years, circumscribing the provisions of inc. f) members of security forces, and the disqualification provided for in art. 12 of the CP With COASTS. Also regarding the fact, case no. 34, requested that the relevant testimonies be extracted to investigate the possible commission of a crime such as the participation of GACHE and RIVEIRO RIVAS in it. In relation to JORGE DAMIÁN REQUIERE and VICTOR ADRIÁN QUADRINI, the aforementioned were brought to trial and charged with being material co-authors in sixty-one events. Both are charged with two forms of commission of the crimes attributed to them: for violating the vehicle import regime carried out by private individuals in the sixty-one events with the exception of those identified with numbers. 23, 31, 35, 36, 37, 39, 40, 42, 43, in which the respective import duties were paid, and for under-invoicing in twenty-two cases, identified as cases Nos. 11, 23, 24, 25, 26, 27, 28, 29, 30, 31,32, 33,34, 35, 36, 37, 38, 39, 40, 41, 42 and 43. He then recounted the circumstances that led them both to dedicate themselves to importing cars for individuals until they managed to set up a sales and import structure, specialising in two brands, FIAT and PEUGEOT. He pointed out that to do so they carried out various tasks: they personally traveled abroad to purchase cars, they personally intervened in the entire operation, they went to the homes of future buyers, they took brochures, they went to agencies and interested independent agents and resellers in the sale. Among the clients were neighbors, hairdressers, coworkers, friends, relatives, and even, in expansion, used car resale agencies. That for this operation, technical knowledge in customs matters was needed, hiring the services of the Customs agent first Cotroneo, then Noe Franco and Accati, the commissioners Amendolara and Ocampo. He also highlighted the evidence by which he maintained that REQUIERE and QUADRINI formed a de facto partnership, they did not act independently but rather divided the tasks indistinctly or jointly dealt with clients or agencies, thus detailing a series of acts carried out by each of them with respect to the same import. As for the alleged facts, he recalled that fourteen of them had already been described when dealing with the cases of SCHOJET, GACHE, ARANGUREN, REVEIRO RIVAS and GONZALEZ. In these cases, REQUIERE AND QUADRINI turned out to be the material authors of the same given that they were the importers and those who, with the connivance of the commission agents, the negligence of the dispatchers and the complicity of the sellers, achieved the objective of circumventing customs control. The remaining facts and evidence proving the illegality of their respective conduct were then analyzed. He concluded that the testimony, documents, and handwriting examinations were able to prove that smuggling had been committed through the violation of the import regime for cars for private individuals. In relation to the cases of underbilling, this maneuver was proven in twenty-two cases, cases identified with the numbers. 11, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 sufficient evidence was also gathered to prove REQUIERE AND QUADRINI as the authors of said maneuver, highlighting the report produced by the National Customs Administration, the comparison of documentation from abroad, and the two cases of invoices with the same number and company but with different recipients, as I already said when dealing with the case of the witness DAGRADI and the one referring to the witness Fernando Rafael LIBERMAN and the witness Pablo De Barrio, which are in the Import Offices identified with the no. 5 and 9, Unilasa invoice no. 9215 used twice. He added that with respect to the eight facts identified with order numbers 12, 13, 14, 15, 16, 17, 19, and 20, the commission of a crime in its various forms of commission already described could not be duly proven, therefore in these cases he stated THAT HE WOULD NOT FORM ANY ACCUSATION, requesting the acquittal of the accused in relation to them. Regarding how the crimes concurred with each other, he stated that with respect to those referring only to the violation of the regime (facts 1/10, 18, 21/22, 44/61) and those referring only to under-invoicing (facts 11, 23, 31/32, 35/40, 42/43), in both cases and among the same assumptions of the same type of maneuver they concurred in a real manner, as for the facts where the form of commission was double, violation of the regime and under-invoicing (facts 24/30, 33/34, 41), they concurred in an ideal manner. That all the facts mentioned above, 53 facts that occur in a real way with each other, also occur in an ideal way with the crime provided for in art. 2?, section b) of Law 23771- Regarding this last charge, he agreed with everything stated by the complaining party. Thus he accused JORGE DAMIAN REQUIERE and VICTOR ADRIAN QUADRINI, as co-authors (art. 45 of the CP) of the crimes defined in arts. 864, Inc. b) and art. 865, Inc. a) and f) of the CA, in relation to fifty-three acts committed repeatedly, materially in ideal concurrence with the violation of the provisions of art. 2? , inc b) of Law 23771, requesting that each of those named be sentenced in accordance with the guidelines of arts. 40 and 41 of the CP to the penalties of FIVE YEARS AND SIX MONTHS, plus the accessories of art. 876 inc. d) e) f) and h), requesting that for section e) it be THREE YEARS of disqualification for commerce, and f) be limited to being members of the security force, the disqualification provided for in art. 12 of the CP, ALL WITH COSTS. In relation to RUBEN AMENDOLARA, he pointed out that the aforementioned had acted as the axis or pivot of the maneuver, his actions dating back to the intervention of Miguel COTRONEO as a customs agent in the events investigated in the case. It was in this place where he met Quadrini. He said that he was the one who connected the importers with other customs agents and with Ocampo. He also referred to the circumstances in which he was fired by the law firm Cotroneo. He considered that AMENDOLARA, together with OCAMPO, played a necessary role in the entire operation without which the falsifications and under-invoicing would not have taken place, providing necessary assistance to the perpetrators without whose cooperation the crime would not have been carried out. After a report on the facts that were imputed to him, he accused RUBEN AMENDOLARA as a necessary participant, art. 45 of the Criminal Code, of the crime of aggravated smuggling in the types provided for in arts. 864 inc. b) and 865 inc. a) and f) of the CA for two facts identified with the numbers. 2 and 10, which are in real form, requesting that he be sentenced according to the guidelines indicated in arts. 40 and 41, to the penalties of two years and eight months of suspended imprisonment, and the accessories provided for in art. 876, Inc. d) e), f) h), CA, requesting that the disqualification from engaging in commerce be set at one year and six months, and with respect to f) be limited to being a member of the security forces, and the costs of the trial. Regarding CARLOS ROBERTO OCAMPO, he stated that his participation in the events investigated was similar to that of AMENDOLARA. He stressed that the person named worked as a commission agent for the ACCATI Customs Broker. He maintained that he filled out the customs documentation that had to be submitted, had it signed by the broker involved, presented it to Customs, continuing with the process until achieving the nationalization of the cars and their release to the square. That the purchasers of the vehicles did not deal with AMENDOLARA or OCAMPO, which explains why neither of them recognised them during the hearing, since these agents formed a group that acted in the shadows, carrying out the procedures behind the backs of the interested parties. He pointed out the evidence against him, highlighting among them the invoices from Catalana de Recambios, Servicios Prades and Levansemar issued in the name of Requiere and the import dispatches signed by ACCATI in blank, which were found at his home during the raid. That in relation to the facts cases identified with the nos. 11, 12, 13, 14, 15, 19 and 20 for which no charges were brought against REQUIERE and QUADRINI, he also requested that OCAMPO be acquitted of them. Finally, he accused the named person as a primary participant in 42 acts committed repeatedly, differentiating acts that had been committed in violation of the regime (18, 21/22, 44/61), acts in which under-invoicing was confirmed (11, 23, 31/32, 35/40, 42) and the acts where the two forms of commission were proven (24/30, 33/34, 41), which concur in an ideal manner, for the crime of aggravated smuggling provided for in the figures of arts. 864 inc. b) and 865, paragraph a) and f) of the CA, requesting that he be sentenced, in accordance with the guidelines of arts. 40 and 41 of the CP, to the penalties of four years of prison, to the accessories provided for in art. 876, paragraph d) e) f) and h) requesting that the disqualification from engaging in commerce be set at two years and six months and that, for paragraph f), the disqualification provided for in art. 12 of the CP, all WITH COSTS. Regarding NOE FRANCO, he indicated that the person named had intervened as a customs agent in two incidents, cases identified with numbers. 2 and 10. He gave an account of how the person named had participated in said events. He stressed that it had been proven that the person named proceeded to sign the dispatches that Amendolara had already prepared. On the other hand, he stated that it could not be proven that he had acted with any deceit, and therefore, in light of the obligations that he had as a customs agent, he should have taken extreme care. He highlighted the quality of customs agent that he had, who due to his habitual handling of documents specific to the activity was more capable of detecting irregularities, having to take extreme care in relation to the greater knowledge that he possesses and having not done so due to negligence or apathy he should be held responsible for negligence. ACUYes“ to NOE FRANCO as author (art. 45 of the CP) of the crime provided for in art. 869 of the CA in two events that occur in a real manner, requesting that a fine of two thousand pesos be applied in accordance with resolution 2344/91 of ANA and the accessories provided for in art. 876 of the CA, paragraph d) e) and f), establishing the disqualification to engage in commerce in one year and limiting the penalty of paragraph. f) to be a member of the security forces. WITH COASTS. And finally, regarding MIGUEL COTRONEO, he stated that the person named had participated in the events of the cases identified with numbers. 1, 3, 4, 5, 6, 7, 8, and 9. His role was as a customs agent in dispatches that he himself prepared and then gave to QUADRINI for the clients to sign. He then made an account of the evidence submitted during the debate and concluded that it was not possible to prove fraudulent conduct on the part of COTRONEO, but that he was guilty, since due to his profession and special knowledge of the tax benefits granted to private importers of cars for their personal use, he should have taken extreme care to ensure that the circumvention of customs control would not take place. ACCUSED MIGUEL COTRONEO as the author of eight events (arts. 45 and 55 CP) of the crime provided for and punished in art. 869 of the CA, requesting that he be sentenced in accordance with the guidelines set out in art. 40 and 41 of the CP, to the penalty of TEN THOUSAND PESOS FINE and the accessories provided for in art. 876 CA, section two, paragraph d) e) and f), setting the disqualification for the exercise of commerce at one year and six months and limiting f) to being a member of security forces. WITH COASTS. Once the respective accusations were concluded, he requested the following be ordered: 1) to extract the pertinent testimonies in order to investigate the conduct of FEDERICO CLASEN, JULIO GONZALEZ, CARLOS SALA, and the firm Carlos SALA SA, sending the documentation regarding those named that was reserved in the Secretariat within the documentation that was seized from the accused OCAMPO at his home; 2) to extract testimonies regarding the eight import offices in which AMENDOLARA was investigated and for which no request for referral to trial had been made; 3) to extract the pertinent testimonies in order to investigate, according to the evidence that emerged from the debate, the participation of PEDRO DAVID SCHOJET regarding the import made in the name of the witness HERNAN RUBEN DARIO TOMASINI and 4) in attention to the prison sentence requested, the detention of the respective accused be ordered for those cases in which it was to be effectively served. He made use of the right to reply. He said that he agreed with the statements made by the plaintiff regarding tax crimes. He clarified that, regarding the documentation alluded to by the Public Defender, which, according to her, was brought to the case by JACOB, it could be verified that among the documentation seized from OCAMPO, there were the originals of invoices 29 and 30. He added that the defendants knew they were being investigated, which is why a series of receipts were issued in an attempt to document their involvement in the operations carried out.
6 Dr. Rodolfo B. Roldán, defense attorney for the defendants Jorge Requiere and Adrian Quadrini, stated that his clients were charged, in relation to all the facts investigated, with simulating the subject of the import, as well as smuggling by under-invoicing and the violation of the criminal tax law in relation to the value added tax of 1993. In relation to this last charge, he requested that the facts be judged within the framework of the current criminal tax law in accordance with the terms of art. 2 of the CP. He argued that at first, when determining the tax claim, the DGI did so separately, attributing a certain amount of evasion to each of its clients and, noting that the amount evaded did not reach the limit required by current regulations, the criteria were modified and the figure of the de facto company was used, which would be made up of REQUIERE and QUADRINI with the sole purpose of exceeding that sum. The tax authority based its arguments for the existence of such a company on the fact that the activity of both parties had been carried out in the same property, which they both served as references for their clients. It stressed that such circumstances were not sufficient to prove the existence of the de facto company being sought, because, as experience in the professional field had shown, it was common for these circumstances to occur between those who share an office without there being a common purpose or motivation, nor a common contribution to the formation of a common fund, and, above all, the decision to share in the profits and losses of a joint business. The Court held that even if the existence of such a company were accepted as a hypothesis, the amount of the tax allegedly evaded would not exceed the limit established by law, firstly because the amount claimed from the unregistered liable parties does not form part of the amount allegedly evaded, and because, not having invoiced and collected such amount from the agencies, it simply places them in the position of liable for another's debt, due to their failure to act as withholding agents, conduct that is not contemplated as a criminal offence in the text of the current criminal tax law. Secondly, he argued that there were elements of conviction to presume that the agencies were not properly categorized as non-registered responsible parties, and that no investigation had been carried out in this regard. He referred to the dispatches not included by Mr. Prosecutor in his accusation but included by the complaint in the amount allegedly evaded. He claimed that there were calculation errors by the tax authorities in those operations in which an agency was involved and claimed that there was a calculation error in the application of the variation in sales prices made by the plaintiff in its argument, providing calculation spreadsheets referring to the cases mentioned. Finally, he argued that the sales value taken as a basis for calculating the amount evaded deviated from the parameters provided for in this regard by the law on the matter, since it used information from third parties operating in different markets and which included conditions and services not offered by his clients. That it would have been easy for the plaintiff to determine the values of cars imported by individuals under the same conditions, in the same context by analyzing the data existing in the Department of Commerce at the time of the events. That consequently, since the amount of the charge did not exceed $100.000 provided for as an objective element of the type by the current law, he requested the acquittal of his defendants for said charge, reserving the federal issue and the right to appeal in cassation. He stated that there was also no simulation by the importing subject since the purchasers of the cars agreed in stating that they wanted to buy a car, that they knew it was imported, that they knew the car was brought for them, that it was a 0 KM, and that in this way they acquired it using the activity carried out by REQUIERE and QUADRINI through the specific regime. That if the express or implied mandate was analyzed, the conduct of these persons who knew that they would receive and patent the car brought from abroad in their name and for their personal use, satisfied the requirements of the mandate, whether express or implied, in accordance with the provisions of the Civil Code in this regard. That the provisions of Decree 2677 regulating the automotive industry, aimed at allowing individuals to obtain a vehicle at a lower price or in less time than they would have to wait in the local market, were not simulated or distorted. He added that the provisions of DGI resolution no. 3543, since it was proven that the cars were intended for the personal use and consumption of the third-party purchasers. That there being no simulation whatsoever, the plain and simple acquittal of those assisted by said accusation was requested. He reserved the right to appeal to the federal court in the event that the prosecution's position was accepted. That in relation to the underbilling that was imputed to his pupils, he said that the accusations were based on the documentation provided by Bustos Harm, which could not be taken into account as evidence without violating the right of defense, because they were obtained behind the scenes of the process and hidden from the parties, for which reason he reserved the federal issue and the right to appeal in cassation. That its production was not ordered by any court but rather produced by order of the Customs Administrator and then sent to Federal Court No. 1 of Córdoba, to a case with a different procedural object. That its subsequent referral by that Court to this process is nothing more than a supposed disguise of legitimacy. Regarding the invoices that are alleged to be false, he maintained that there was no evidence to disprove their authenticity. That the request to Uruguay processed during the process corroborated the real existence of the firm Investra SA. That the alleged falsification of the signature of the recipients of vehicles in some offices cannot be attributed to their defendants except in those cases in which they acknowledged having inserted them at the request of friends, signing them in some cases with their own signature. That such signatures on the import clearances were not an obstacle to their processing under the respective regime, verifying that the persons who appeared on the clearances were in fact the purchasers of the vehicles in question. That in this way they did not affect the control functions of Customs nor can they be considered a falsification because there was no possible harm. He argued that the promiscuous imputation made against his defendants regarding all the facts imputed to them without specifying the activity that each one was accused of in each case entailed an impairment of the right of defense, which is why he reserved the right to appeal in cassation. Lastly, with regard to the prison sentences requested by the accusers, he said that they in no way satisfied the purpose of the sentence, since his defendants had no criminal record. That they also had excellent environmental reports, that from the date of the events in question until the present, a longer period of time had elapsed than that requested by the accusations, during which they have led an irreproachable life, making their reintegration into society evident. That is why he requested, as a subsidiary measure, that any prison sentence imposed on them be suspended. He made use of his right to reply regarding the tax crime charged against his clients. He exercised his right of reply, reiterating that he did not consider the increase referred to by the plaintiff to be applicable to the case when evaluating the tax claim made by his clients. He added that, with regard to the import clearances that were taken into account to determine the tax claim, since they were considered crimes in ideal competition, they should be evaluated according to the criteria expressed by Mr. Prosecutor in his argument.
7. Dr. Adriana Marlene MARTILOTTA LUGO, Rodolfo DEL CASTILLO's defense attorney, said that she agreed with the statements made by the Public Prosecutor in his argument, that in light of the decision made in the Tarifeño ruling of the CSJN in the absence of a prosecution charge, she requested the outright acquittal of her client, and also requested that a copy of the judgment in this case be sent in a timely manner to the investigating court in which proceedings against Del Castillo were being processed.
8. Dr Marcos LITVACK, defense attorney for Luis RIVERO RIVAS and Néstor Juan GONZALEZ, stated that his defendants were charged with the crime of aggravated smuggling on eleven occasions, as necessary participants, the conduct attributed to them having been defined in paragraph 3) of point XI of Chapter D) of the public prosecutor's request for referral to trial on fs. 4212/36.- That the oral debate made it possible to demonstrate the existence of gross irregularities in the instruction of the process, such as the selection made by the AFIP of the declarations that the purchasers had made before it, omitting the sending of those that made references to import dispatches or invoices or omitting, when these were exhibited by the declarant, their addition to the declaration, the similar structure of the testimonial declarations made before the investigating court, for which reason they lacked the gift of spontaneity, the fact that the DGI officials would have resorted to customs brokers, for advice, instead of doing so with customs officials, the circumstance that, when a woman had to declare about the operation, not knowing the details of the same, they were explained by her husband, present at the hearing, but not mentioned in the minutes, or by the declarant's son-in-law and his lawyer, also not mentioned in the corresponding minutes, and in general, the lack of respect for the truth that had been demonstrated by the majority of witnesses, only partly justifiable by memory lapses due to the time elapsed, all of which affected the convincing virtuality of the testimonial evidence. - That also on the occasion of the arguments of the accusing parties, references had been noted to the testimonial statements made in the debate that did not reflect the reality of those That in relation to the vehicle destined for Mrs. Amarante was a special situation, as it was the only case in which the defendants had not admitted any connection with it, which would be illogical if they had been involved in the transaction, given the admission of their involvement in the other transactions, and it was also the only case in which the purchaser had not provided any documentation proving the involvement of Tradecars, so the only evidence in this regard were the statements of Mrs. Amarante, absolutely contradictory to each other, comparing the statements made during the investigative stage with those made in the oral trial, according to the analysis carried out by Mr. Advocate. He reviewed the statements made by his clients in their statements under investigation, according to which they had not been involved in the imports, but only in the sales of the vehicles, with the accused Requiere and Quadrini being in charge of these, and to whom they had not provided any fraudulent collaboration to carry them out, since they had not given him photocopies of their ID cards. of the purchasers to enable the forgery of their signatures in import offices, having been logical, legitimate and necessary both the contribution of their data, as well as the recruitment of clientele, typical of all commercial activity. - That in relation to the circumstances mentioned in the fiscal indictment for referral to trial, argued to attribute criminal liability to his defendants, he reiterated that the recruitment of clientele was typical of commercial activity and that, in the specific case that concerned us, this has been recognized by the customs official, Contador Bustos Harm, who stated that, since the objective of the rule is to enable the individual to import a vehicle, the individual could not be required to, for this purpose, register as an importer and travel abroad to make the purchase, for which reason the intervention of a dealership did not mean a transgression of the regime established by decree No. 2677/91, provided that such intervention did not entail wilful collaboration in tax fraud, for which knowledge of the existence of such fraud was essential; on the other hand, the capture was in no way for Requiere and Quadrini, since the purchasers of vehicles did not even know them. - That in relation to the false signatures of the end users in the import offices, their defendants did not provide any collaboration for this, since they did not deliver photocopies of the DNI for this purpose. de los adquirentes, quienes manifestaron que en Trade Cars no se las requirieron, que las firmas no tenían el menor parecido con las propias y que no asumieron ninguna conducta cuando supieron de tales falsificaciones, debiendo agregarse a ello que el perito MILLET sostuvo que las firmas falsas no han sido el producto de un proceso imitativo, y en cuanto a los datos personales de los adquirentes, esos sí entregados a Requiere y Quadrini, ello no solo era normal, sino que, más aún, resultaba imprescindible para el trámite aduanero, desde el momento que, sin ellos era imposible que el certificado de nacionalización emitido por la Aduana indicara a dichos adquirentes como titulares, lo cual hace impensable la posibilidad de una actuación dolosa por parte de quienes efectuaran tal aporte de información.- Que, en virtud de todo ello, correspondía absolver a sus defendidos.- Que en la ocasión prevista por el art.393 del Código de forma, los acusadores habían basado sus imputaciones en circunstancias fácticas diversas de las mencionadas en la requisitoria fiscal de instrucción, configurándose, de tal modo, conductas diferentes de aquellas que fueran materia de debate, o sea hechos distintos, lo que ha impedido el adecuado ejercicio del derecho de defensa en juicio, por lo que correspondía aplicar al caso lo dispuesto en el segundo párrafo del art.401 del Código Procesal Penal, absteniéndose de dictar sentencia respecto de los mismos.- Que, de todos modos , a efectos de evitar un estado de indefensión se refirió a estas últimas imputaciones.- Que de las declaraciones prestadas por los testigos adquirentes de vehículos surgía que los mismos fueron importados para ellos, lo que por otra parte, surgía de la documentación que, respecto de cada operación obraba en estos autos y del certificado de nacionalización expedido por la Aduana, que permitió el patentamiento de dichos vehículos a nombre de los adquirentes, que, por lo tanto, estaban en conocimiento de que los coches iban a ser importados a nombre de ellos, tal como sucedió, lo que impide la aplicación al caso de la norma prevista en el inciso b) del art.864, tal como lo ha entendido la Cámara de casación penal in re Zankel.- Que la cuestión acerca de si las operaciones consistieron en una compra o en una importación no pasaba de ser una cuestión semántica, ya que los adquirentes no eran importadores, ni nadie quiso hacerlos pasar por tales, ni tampoco simples compradores, sino ,con mayor propiedad, comprador de un coche importado para uso personal de aquel, de acuerdo al régimen del decreto N!2677/91.-Que si no se entregó facturas por el total de lo abonado por los adquirentes fue porque Tradecars no era propietaria del vehículo vendido, ni sus integrantes tenían conocimiento de que fueran propiedad de Requiere y Quadrini.- Que si no se entregaba recibo en forma a los adquirentes era, simplemente, por razones de evasión tributaria, no imputada a Gonzalez y Riveiro Rivas, y no al contrabando imputado a aquellos.- Que no era cierto que los vehículos hayan sido introducidos al país antes de que los usuarios finales concertaran la compra de aquellos, como se afirmara en el requerimiento fiscal de elevación a juicio.- Que, por lo ya dicho, sus defendidos, eran ajenos a la falsificación de las firmas de los usuarios finales en los despachos de importación..- Que por la subfacturación, sus defendidos no fueron imputados, lo que indicaba que aquellos desconocían las facturas emitidas por Catalana de Recambios a Requiere y Quadrini, lo que llevaba como lógica consecuencia que tampoco conocían que estos eran adquirentes de los vehículos que importaban, no existiendo, por lo demás, elemento alguno que acreditara tal conocimiento.- Que ,por ello, no se daba en el caso el elemento subjetivo imprescindible para responsabilizar a sus defendidos, invocando, al efecto, la jurisprudencia de la Corte Suprema de Justicia de la Nación in re Ramos e in re Morillas, así como el del propio Tribunal in re Fano, Norberto Gabriel.- Hizo reserva de recurrir en casación y del caso federal, en caso de sentencia condenatoria, en caso de errónea aplicación del art. 45 of the Penal Code and inc. b) of art.864 of the Customs Code, as well as whether the conduct for which such a sentence is issued is that stated by the Public Prosecutor's Office and the plaintiff, no longer in the request for referral to trial, but in the corresponding arguments. - That he requested that testimonies be extracted to investigate the crimes of false testimony in which witnesses Vega and Amarante would have incurred. He made use of the right to reply. He reiterated that he considered that the complaint had not analyzed the same facts investigated regarding his clients who were accused of attracting clients and providing personal data. Other charges were later added, modifying the factual basis and considering different criminal conduct. He referred to the Prosecutor's statements regarding the receipts that were being recovered, which was related to the tax crime that was not charged against his clients.
9. Dr. Oscar H. COLOMBO, defense attorney for Alejandro GACHE and Fernando ARANGUREN, first stated that his clients had not been charged with tax crimes and secondly considered the version of events given by GACHE and ARANGUREN in their respective investigations to be proven, namely, QUADRINI's knowledge of the offer and non-agreement to import, which was a regular activity of G and A AUTOMORES, the failure to obtain clients, the buyers being not new clients but former clients of the firm, the acting as intermediaries as advisors, the failure to purchase the cars abroad, the failure to intervene in the import and the fact that they did not know the other persons involved in the case. He stressed that there were situations of doubt, thus: Requires-Quadrini's offer about the operation, about convincing clients to purchase imported vehicles, the percentage of incriminated sales on the agency in that period, whether or not the cars were on display at the agency, and about the existence of an agreement to commit the maneuver. Based on the above, he requested that the benefit of the doubt provided for in art. 3 of the CPP be applied to his defendants, and in the event that they did not share this criterion, he requested a reservation of cassation. He then considered that there was subjective atypicality in the conduct of GACHE and ARANGUREN based on arts. 864 inc. b and 865 inc. a of the CA. That there was an absence of necessary participation of his clients in the facts brought to trial, mentioning doctrine and jurisprudence that indicated the absence of the required intent for smuggling. In the event of not sharing this criterion, he reserved his right to appeal. For all these reasons, he requested the acquittal of his clients of guilt and charges in facts nos. 9,29, 51 and 2. Without costs. 3) the supplementary application of art. 3 of the CPP, in the situations of doubt indicated and 22) the request for testimony made by the Public Prosecutor in relation to facts nos. 28 and 53 be rejected, since its investigation would entail a double trial. He also requested the acquittal of his clients in relation to the facts arising from the office whose order number was XNUMX, in accordance with what was stated by the Public Prosecutor. In exercising his right to reply, he said that the purpose of the decree in question was fulfilled because it could be verified that the third parties effectively used the imported vehicles for their personal use. That his wards had to endure investigations by the DGI in which no irregularities could be verified and there was no fiscal reproach against them.
10. Dr. Bernardo RODRIGUEZ PALMA, defense attorney for Pedro David Schojet, stated that the defendant was considered by the Public Prosecutor to be a necessary participant in the import office, the order number of which was 53, arguing that he had attracted clients, forming a gang with the other defendants, but that the participation of GACHE and ARANGUREN in said office could not be proven, so the gang would be formed by QUADRINI and his client. That with respect to the car that his client sold, it emerged from GISER's testimony that the defendant knew that she would import a car, which she requested to be in the name of her mother for personal reasons, that the car would be brought from Uruguay, that she was given an invoice from INVESTRA in which the name of Rosa FRAIMOVICH, GISER's mother, appeared, that the bill of sale expressly stated that the car would be in the name of her mother. That all of this ruled out the possibility that GISER had been deceived or seduced by SCHOJET. That the car in question was introduced through the port of Buenos Aires, having processed the respective import clearance before Customs without any problem. That the fact of having requested personal data from GISER to import his car did not constitute a crime. That the fraud that was attributed to the conduct of his client could not be proven at any time. He added that SCHOJET was unaware of the customs procedures, that he was only a car salesman. He requested that the extraction of testimonies regarding the declarations made by TOMASINI not be allowed, since his statements had no value whatsoever, it was not known what car he bought, he did not provide documentation that implicated SCHOJET, he did not mention SCHOJET when he testified before the instruction. For all these reasons, he requested the outright acquittal of his client.
11. Dr. Camila RODRIGUEZ CASSELLA, defense attorney for Miguel Antonio COTRONEO, stated that the plaintiff had considered COTRONEO a necessary participant in the crime provided for in art. 864 inc. by 865 inc. a del CA, and the Prosecutor framed his actions within the provisions of art. 869 of the CA. That in order to establish the crime charged by the complaint, it was not enough to simply represent the criminal act, but rather it required intentionality, the purpose of carrying out an illicit conduct. That the aggravating circumstance charged also required a concurrence of wills. That the culpable conduct was materialized by the simple presentation of false documentation to the customs service, this objective element not being sufficient but the subjective element, imprudence, inexperience, negligence, was also required. That the evidence in the file showed that COTRONEO knew QUADRINI, whom he met at Customs and later registered as an importer. That he did not know REQUIERE, even REQUIERE himself said that he did not know which brokers the OCAMPO and AMENDOLARA commissioners worked with. That COTRONEO's conduct was to prepare the import clearance using the documentation that QUADRINI sent him for this purpose, the commercial invoices, the bill of lading, the certificate of origin and the data of the third-party purchasers of the vehicles. He then gave QUADRINI the respective matrix of the office so that he could have the third-party purchasers sign it, because, according to QUADRINI's own statements, they lived far from his client's place of work. He clarified that in this import system the importer and the third-party purchaser had joint liability in relation to the imported merchandise. That in field 80 of the import clearance COTRONEO declares QUADRINI as the registered importer. That QUADRINI requested more participation in the processing of the dispatches, to which COTRONEO refused, the only thing he left in the hands of QUADRINI was obtaining the signatures of the third parties. COTRONEO later found out that QUADRINI also dealt with other customs agents, later disassociating himself from him. That COTRONEO documented the importation of automobiles and at no time suspected the existence of any illegal activity. That the fraud in the conduct of his client could not be proven, referring to the testimonies of Gil Baez, Di Menna, Alvarez, Hoffman, Crescenti, Bondarosky, some of whom had recognized his signature and others had authorized QUADRINI to sign for them, which meant a tacit mandate. That with respect to the negligent crime, COTRONEO had fully complied with the controls of the operations under his charge. For all these reasons, he requested the outright acquittal of his client. He further added, regarding the accessory penalties for the crime of smuggling, that they were burdensome, signifying for his client a civil death, that he would not be able to perform his work, he referred to his state of health, and the loss of most of his assets.
12. Dr. Patricia M. GARNERO, in charge of the defense of the accused Noé FRANCO, Rubén AMENDOLARA and Carlos OCAMPO said first of all and in relation to the import shipments nos. 36261/9, 64631/0, 36266/4, 74542/3, 16548/5, 297047, 275416 and 64522/8 for which AMENDOLARA was investigated at the investigation stage but was not prosecuted and required, that a remissory decision should be taken since otherwise it would generate a breach of the principle of preclusion affecting the right to defense in court, citing jurisprudence of the SCJN Mattei, POLACK, Federico G and AMADEO de ROTH, Angelica L, in reference to the right of the accused to obtain a reasonably speedy trial. For the same reasons, he said that the same solution was required with respect to the fifty facts for which his client was not investigated but was prosecuted and required to be brought to trial. He reserved the right to appeal the federal case and to appeal in cassation in this regard. He stated that the elements used to carry out the accusation were basically the investigative statements of the co-defendants, that the complaint referred to a structure in which his clients participated in order to market the cars in the country, the brokers being the axes of this customs maneuver due to their technical knowledge. That the Prosecutor referred to a gang which included OCAMPO and AMENDOLARA, as a group that acted from the shadows, that both were the central axis that made their contribution, thus attributing to them the liquidation of the tax amounts, the presentation of the respective documentation, the preparation of the import dispatches. That on the one hand the representative of the Complaint based his accusation against the accused OCAMPO in the same way as that made by Mr. Prosecutor, i.e. necessary participant (art. 45 of the CP) of the crime of smuggling contained in inc. b of art. 864 of the CA, and with the aggravating factor established in art. 865 inc. ayf of the CA. But with regard to the accused AMENDOLARA, the accusers have differed in their criteria of assessment since the complaint has classified the conduct attributed to Rubén AMENDOLARA, reproaching him for his participation as author, with respect to the facts classified in art. 864 inc. by with the aggravating circumstance contained in inc. a of art. 865 of the CA. That the investigation by Quadrini and Cotroneo regarding the operations carried out between them as early as 1992 and the registration of the former as an importer, when Amendolara was only an employee, has not been assessed. He also mentioned the testimony of. Osvaldo Julio VIDAL, who although he knew Rubén AMENDOLARA as a person who worked in the Cotroneo office, did not know exactly what his functions were, but is completely sure that for the processing of this import he did not have any dealings with the aforementioned AMENDOLARA, he only saw him in that office. This shows that if Quadrini was already making imports in 1992 and his clients were not involved as commission agents, it is difficult to say that they were some kind of ideological authors of the maneuver. He said that despite all this, it could not be said that Amendolara and Ocampo formed the group, which, acting from the shadows, emerged as the true pivots and mentors of this maneuver. He referred to the activity of commission agents, whose essential work was that of a free agent who charges for the performance of his work, which in customs jargon was known as running a dispatch, charging a fixed amount. He said that it could not be expected that the work of a commission agent would become that of an expert who would recognise the authenticity of the documentation that was presented, when this was not even noted by the very body in charge of controlling these imports. That later analyzing the testimonies given in the proceedings, regarding DOMENEC, GISER, KOSCIUCZYK, COHEN, CORBETTA, PIERRETI, AVILA, TOMASSINI, CUCCURULLO, CACCIA, ODORICO, CERSOCIMO, he said that it was proven that the buyers did not know their clients. Regarding the collection of fees from the commissioners, who agreed not to remember whether such sum was for import clearance or for the order, he said that the Complaint had biased the aforementioned statements. He stated that both accusing parties had referred, in order to try to prove the fraudulent participation of their clients in the investigated maneuvers, to the documentation obtained from the search carried out at the address at 611 Santa Elena Street, which turned out to be the address of Carlos OCAMPO. He referred to the copy of the invoice from the company CATALANA DE RECAMBIOS No. 24L 0016, of the copies of the company SERVICIOS PRADES with which, in the opinion of the Complainant, it would be proven that REQUIERE AND QUADRINI delivered all the invoices, and that their clients were the ones who, in a sort of selection, carried out the operation to circumvent customs control, stating that there was an error because said invoices corresponded to operations duly documented by other Customs brokers with whom they also worked and which did not constitute operations of those charged here. He referred to the existence of manuscripts with personal data that would be transferred to various offices, as well as two invoices from Requiree ending in 029 and 030, which were issued in the name of JACOB, stating that they were not the product of the aforementioned raid of February 11, 1994, but were incorporated into this case by JACOB himself when he made a statement before the investigation, as stated therein. He also said that from the mere comparison of the dates that appear on them (February 16, 1994) it was clear that they could never have been in the possession of his client at the time the procedure was carried out five days before they were issued. Regarding the blank documentation signed by ACCATI, it is inexplicable that it was intended to attribute responsibility to AMENDOLARA Y OCAMPO for this, when in any case it will be a question to be clarified regarding the work modality of the aforementioned dispatcher. Finally, with regard to the manuscripts containing personal data that would appear in the dispatches, nothing could be more in line with the work mechanics demonstrated, since they were delivered by REQUIERE AND QUADRINI, like the rest of the documentation necessary to prepare the import dispatches. For all these reasons, he stated that the charges were brought based on mere statements and without any other means of proof other than the investigations of other co-defendants. He added that since the burden of proof was on the prosecutors who had to destroy the presumption of innocence enjoyed by all defendants and since the subjective aspect, the intent of the criminal figure charged, had not been proven, the acquittal of AMENDOLARA and OCAMPO was therefore appropriate. Regarding the accusation of his client Noe FRANCO consisting of negligent smuggling, he stressed that the delicate state of health that his client was suffering at the time of the events, which motivated an urgent surgical intervention, made it possible to cast a shadow of doubt as to whether he was really in physical condition to observe the due duty of care required of him regarding the signing of these import dispatches, the lack of which constitutes the basis of the accusations. He said that how could it be expected that his client would notice alleged irregularities if in this case Customs itself had not noticed them, even in the case in which one of the import dispatches (fact No. 2) was subject to a value adjustment. He stressed that the documents had passed all the controls to which the agency subjected them, which occur through several departments. For all these reasons, he requested the acquittal of his client. He exercised his right to reply. He confirmed that JACOB's invoices were those provided by the person named in the investigation. That according to the minutes of fs. 160 reference had been made to REQUIERE documentation but it had not been detailed. That the prosecution's arguments responded to a subjective criterion not based on evidence. He again requested the acquittal of his clients.
II. Evaluation of the evidence.
13. To this end, the procedural documents incorporated by reading, the elements exhibited during the debate and the statements made by the witnesses and the statements of the accused detailed below are taken into account.
14. Jorge Damián REQUIERE, Victor Adrián QUADRINI, Alejandro Mariano GACHE, Rubén Alberto AMENDOLARA, Noé FRANCO and Carlos Roberto OCAMPO refused to testify, exercising their right. Therefore, their statements made before the investigation were incorporated by reading.
Statements made by the accused during the investigation.
15. Jorge Damián REQUIRES declared on fs. 3008/3011 who with his friend QUADRINI imported a car for the declarant. That as a result of this and some time later he began to import cars for a group of friends on behalf of the latter, specifying that his objective was never the sale of the cars that are the subject of this case, but rather to provide the service of importing them to individuals. As time went by, he contacted the Trade Cars and Gache y Aranguren agencies, but he does not remember whether it was because he offered the business or because these agencies had requested it. When he began importing a large number of cars, he registered as an importer, clarifying that his main activity was that of an instructor and pilot. That he was aware of the existence of two import systems in force at the time of the importation of automobiles in this case, not knowing precisely his obligations as an importer, in cases of imports on behalf of third parties. That as a result of such importation, contact was made through a friend with the customs broker assistants AMENDOLARA and OCAMPO, to whom the corresponding commission was given for each importation, a commission previously agreed upon in advance and paid by the declarant together with QUADRINI, with money from third parties, without knowing which broker each of them worked with. That he subsequently contacted the dispatchers Noe FRANCO and Gerónimo ACCATTI whom he met at Customs. That he always dealt with the appointed commission agents and on rare occasions he did so with the aforementioned dispatchers. That the customs procedures were handled by the commission agents of the respective dispatchers, who on some occasions were the ones in charge of having the import dispatch matrices signed and on other occasions it was the declarant himself who had them signed, clarifying that on several occasions he himself signed such matrices, given that the location of the person was not immediate or was still a friend. That in Colonia, ROU, the declarant contacted the company Investra SA. That through it he contacted people in Spain, not remembering whether he did so with Catalana de Recambios, Levansemar or Servicio Prades, clarifying that it was the people from Investra who generally contacted them. That in France SODEXA was contacted through a person or INVESTRA. That with Chile the declarant went to the Iquique area and contacted QUADRINI at some company in the area, not remembering which one, leaving on record that the declarant did not import any car from said country. That in relation to Panama the situation was similar to that of Colonia and Chile. That sometimes the company Investra informed him that cars imported from Spain would not enter through the port of Montevideo but would do so through the port of Buenos Aires. He provided clarifications regarding some of the seized documentation. He said that Federico Classen was a friend who helped the declarant and QUADRINI with their tasks without any remuneration. At fs. 3447/3448 expanded his statement and stated that he knew the firms Carlos Sala and Toyo Pamp, but not Ouville and Jiggers. That he brought some cars for the firm Carlos Sala SA, that he knew Carlos Sala through the father of the declarant. Who also brought cars for the Toyo Pamp firm and who knew BRESSO and his wife. That the named person was a pilot. That he did not know TOMASINI or NOGUEIRA. The name SCHOJET sounded familiar to him.
16. Victor Adrian QUADRINI declared on pages. 3014/3018 who started the activity of importing cars as a result of his desire to import a car from Chile. That through inquiries at Customs he learned that he had to register as an importer. That he was aware of two import systems from information published in the newspapers. That when he found out what the procedures for importing cars were like, he told his friends about it. Who first went to Chile to make some contact. That he handled customs clearance with the broker COTRONEO, whom he met through recommendations given to him at customs. That there was little contact with the named person since the procedures were carried out by the commissioner AMENDOLARA. That he learned that a better type of vehicles could be brought from Panama. Taking advantage of a trip by REQUIERE, he asked him to carry out the relevant investigations to import a Fiat Uno. As he received more requests from friends about the import service he offered, he began to find out about the different countries from which they could import cars. This is how France emerged for the Peugeot and Spain for the Fiat Uno. By that time he had already contacted Investra in Cologne, ROU., who made the contacts with the people in Spain and France. That the declarant traveled to France in order to verify the existence of the company Sodexsa and to Spain for the same purpose for the company Lavensemar. That with France he dealt with the dispatcher NOE whom he met through AMENDOLARA. That with Spain he dealt with the broker ACCATTI whom he met through OCAMPO, the latter introduced by AMENDOLARA. He clarified that he had no knowledge of the procedures for exporting with either France or Spain, procedures that were carried out by INVESTRA's people. Regarding imports, he said that INVESTRA people would let him know if the car was coming from Spain, whether it was entering directly to Buenos Aires or through Montevideo, depending on the route of each ship. Then car dealerships, Trade Cars and Gache and Aranguren, emerged. That GACHE's brother flew with the declarant, not remembering who offered the service. The arrangement with the agencies was as follows: they would find the client and then order the cars to be imported. They would send them the details of the third-party buyers by fax using a photocopy of the document, in order to carry out the customs procedures, agreeing on a commission for the import procedures. The cars were brought to the dealership by the dealer or the dealer and sometimes by a friend. That Federico CLASEN was a friend who once helped them. That he was aware of the import regimes existing at the time of the operation but was unaware of the regulations that supported such imports. That it was the brokers' commission agents who had third parties sign the import dispatches. That on one occasion, when dealing with friends, it was the declarant who made said signature. in order to speed up the customs process. That the business between him and REQUIERE was independent, each one handled his clientele but given the friendship between the two they helped each other. At fs. 3368/69 round. He expanded his statement and stated in relation to the firm Toyo Pamp SA that he only knew one of its members, BRESSO, as he was also a pilot for Aerolineas Argentinas, and that he did not know the firm JIGGERS or any of its members. That he did not know the company OUVILLE SA. That he knew Carlos Alberto SALA because he was an acquaintance of the declarant's father and that he could have collected some order that REQUIERE brought for the named person. At fs. 3368/69 expanded his statement and stated that he did not know the Toyo Pamp firm, but he did know one of its members, BRESSO, who was an airplane pilot, but he does not remember whether he had any business dealings with him. That he had no dealings with Aurora Velez. That he did not know the Jiggers firm or the Ouville firm. That he knew Carlos Alberto Sala because he was an acquaintance of the father of the declarant and that he did not remember if he imported any car for the named person, but that it could be that he carried out some collection procedure for him since with REQUIERE they occasionally provided help. He said he did not know Malatini, Monteverde, Delprato, the company Gahan y Cia, Hernan Tomasini, or Nogueira.
17. Alejandro Mariano GACHE stated on pages 3376/77 back that he met QUADRINI through his brother who knew the father of the named. That QUADRINI offered to bring him foreign cars cheaper than the market prices. That QUADRINI set a price for the car and the deponent had to gather the buyer's information, that a plus for advice was added to the established price and in some cases the accessories had to be completed. That many times QUADRINI himself dealt with the client at the agency. That on one occasion he dealt with REQUIERE. That he did not know that clients had to sign import dispatches. That QUADRINI took the cars to the agency, on one occasion ARANGUREN was present in the port area. That he did not know Noe FRANCO, COTRONEO or ACATTI but that he did hear about the latter.
18. Ruben Alberto AMENDOLARA testified on pages 3444/46 back and said that he was unaware of having prepared the import dispatches signed by the dispatcher COTRONEO since at that time he was an employee of the aforementioned and not a commission agent. That he did work as a commission agent for the dispatcher Noe FRANCO. That he met QUADRINI because COTRONEO was his dispatcher. That the declarant introduced him to Noe FRANCO. to QUADRINI. That he later met REQUIERE. That he later worked as a commission agent with the dispatcher ACATTI who was introduced to him by Noe FRANCO. That he did not remember if he charged fifty pesos per order or per dispatch. That the declarant prepared the dispatches with the documentation given to him by REQUIERE and QUADRINI, then gave them to the dispatcher who signed them. That REQUIERE and QUADRINI were in charge of having the third-party purchasers sign. That he did not know the firm Toyo Pamp, Jiggers, Ouville, or Hernán TOMASINI or Carlos SALA. That the declarant introduced OCAMPO to REQUIERE and QUADRINI. That he never thought that the operation could be criminal since at that time they were not the only ones importing cars. That when he went to the port area he was generally accompanied by REQUIERE and QUADRINI, that there he saw people who he believed could be the purchasers of the cars.
19. Noe FRANCO testified on pages 3440/41 and stated that he met REQUIERE and QUADRINI through AMENDOLARA, who was an employee of COTRONEO. That AMENDOLARA proposed that he act as a dispatcher for REQUIERE and QUADRINI charging fifty pesos per dispatch. That the declarant only signed the dispatches that were already prepared by AMENDOLARA. That due to health problems he left the business to ACATTI. That at all times he thought that it was about cars for private individuals.
20. Carlos Roberto OCAMPO testified on pages 3378/81 back and stated that he met REQUIERE and QUADRINI through AMENDOLARA, who was initially a commission agent for the COTRONEO broker. That when AMENOLARA stopped working with COTRONEO to work with ACATTI, they proposed to the deponent to work for REQUIERE and QUADRINI, who were to import cars from abroad. That the aforementioned parties gave him the necessary documentation (bill of lading, commercial invoice, freight certificate, the data of the third-party purchasers in whose name the shipment was made) to carry out the process of the shipment in order to nationalize the cars. That he did not know the third-party purchasers. That when REQUIERE and QUADRINI did not bring the corresponding matrices of the third-party purchasers signed, the nationalization was documented with a blank signature because it was not their function to sign said matrices. He said he did not remember whether he charged fifty pesos per dispatch or per car. He knew the companies Investra, Levansemar, Servicio Prades, Catalana de Recambios because their names appeared on the invoices. He knew Noe FRANCO and COTRONEO. The declarant and AMENOLARA were in charge of releasing the car to the plaza and then REQUIERE and QUADRINI handed the keys to third parties. The dispatchers signed the dispatches but the procedures were carried out by their commission agents or employees. He made clarifications in relation to the documentation that was seized in the search carried out in the case. He explained the procedures necessary to carry out the transfer of ownership of the cars.
Statements made by the accused during the trial.
21. Rodolfo del CASTILLO said that he worked at Customs, that he was dedicated to carrying out tasks related to customs criminal matters. That he was an official in the contentious sector of Customs and a verifier of tariff positions. That he was never involved in the importation of automobiles. He was shown the import dispatches numbers 59772-0/94 and 152136-6/94. He said that he had contacted the customs agent VILLAGRA to process one of the import dispatches, however he did not dare to do so and ended up doing the ACATTI procedure. That NOGUEIRA was the other dispatcher. That Julio GONZALEZ asked him as a favor to import the automobile, that it was he who gave him the deposit receipt. That he did not know either REQUIERE or QUADRINI, that he paid the corresponding duties. That he did not see the automobiles since that was a task of the dispatcher. That Customs said that the cars were worth three times more than what was stated on the document. That the document (deposit slip) shows a value of 6700 pesos and Customs says that it was 8200 according to an investigation carried out with invoices from Spain. That the cars did not have the names of the buyers, they were displayed in the window, except for one of the cars that was kept by one of his employees. That another car was delivered to NOGUEIRA. That Julio GONZALEZ currently works at the GACHE and ARANGUREN Agency. That he does not know the other defendants, only GACHE through Julio GONZALEZ. That OUVILLE invoiced the merchandise that appears in the described shipments.
22. Luis RIVEIRO RIVAS stated that he had a vehicle agency called Trades Cars with Néstor GONZALEZ. He said that he was aware of a new customs regulation for importing new cars. That he was dedicated to selling cars with Néstor GONZALEZ. That they carried out the sale of the cars and REQUIERE and QUADRINI carried out the importation of the same. That REQUIERE and QUADRINI were introduced to the declarant and GONZALEZ in a meeting. That REQUIERE was known to GONZALEZ. That the declarant and GONZALEZ were dedicated to the sale of used, non-imported cars. That if an interested client showed up, they were asked for a first payment and their personal information, giving all this to REQUIERE and QUADRINI. That the price was set by the aforementioned parties plus a bonus that they stipulated, but that he did not know how that value was arrived at. That when the car arrived in the country, the client was asked for a second payment, which was transferred to REQUIERE and QUADRINI. That the client was given a provisional receipt when he was interested in a purchase. That REQUIERE and QUADRINI had the client's details, but the purchasers did not sign any type of documentation in front of them. The import dispatches imputed to the declarant in the case were shown to him. He said he recognized some people who appeared in the import dispatches that were shown to him, imputed to the declarant in the present case. That said people were clients, owners of cars. That there was advertising about the sale of vehicles, but he does not remember by what means. That clients were offered new imported cars, which were the most requested. That the prices of the cars were variable, cheaper than those in the market, without knowing why this difference existed. That he did not remember if the person was told that he had to import the car in his name. That REQUIERE and QUADRINI presented themselves as car importers and that he knew Federico Classen since he imported with them. That they gave invoices to the clients. That he was also given invoices from REQUIERE and QUADRINI, not remembering how many and when. That the Trades Cars Agency also registered the cars, sometimes he went there. That they did not take precautions regarding the legitimacy of the entry of imported cars, they only dedicated themselves to selling them. That he did not know INVESTRA. That he also did not know the company OUVILLE or DEL CASTILLO.
23. Néstor GONZALEZ stated that he owned a car dealership together with Luis RIVEIRO RIVAS called Trades Cars. That REQUIERE and QUADRINI offered them cars that they imported. That they knew that their clients were going to be the importers of the cars. That he does not remember if he informed the clients that they would be the importers. That he did not know the ownership of the cars and that there was trust in REQUIERE and QUADRINI. That they billed the clients for their intermediation in the sale of the imported car. That Federico Clasen was a friend of REQUIERE and QUADRINI.
24. Fernando Matias ARANGUREN said that he was dedicated to the commercialization of cars on commission, he had a vehicle sales agency together with GACHE. That he knew REQUIERE and QUADRINI since GACHE's father was a friend of QUADRINI's father. That at some point QUADRINI offered to bring in imported brand new cars. That a photocopy of the ID of the clients and the money for the purchase abroad was requested. That the declarant was unaware of the import procedure. That between ten or eleven sales operations of these cars were carried out. The import dispatches nos. 0-64522/8, 93-414.256/6, 93-170.480/7 and 93-147.177/4 were shown to him.
25. Pedro David SCHOJET said that he knew GACHE. That he needed to increase his income, and in response to an offer made to him by GACHE, he devoted himself to street reselling of cars. That he bought a car for himself and another for GISER. He was shown import orders numbers 170.855 and 170480.
26. Miguel Antonio COTRONEO said that he knew REQUIERE and QUADRINI. That he knew that they were airplane pilots. That he was called by the Bank of Boston Foundation in relation to a person -QUADRINI- who needed a Customs broker. That he knew about the regulatory change in the resolution that favored the importation of automobiles for individuals. That the import operations on behalf of and by order of third parties were used a lot for another type of importation -of colts for ranchers-. That when the importation of automobiles was opened, individuals needed a registered importer. That QUADRINI had an importer registration, the declarant registered him as an importer-exporter before Customs. The respective import clearances were exhibited. That DI MENA, SANCHES and HOFFMAN did not sign in front of him. That to carry out the import clearance he asked QUADRINI for a series of data: bill of lading, certificate of origin. That in general it was FIAT and PEUGEOT automobiles. That QUADRINI, being a pilot, had clients in the city of Córdoba. That the declarant prepared the documentation on behalf of a third party and gave it to QUADRINI so that he could take it to his client who lived in another province. That in order to register the car, certificates were required. Regarding the import dispatch no. 74542-3/93, it is a direct dispatch to QUADRINI and does not pay taxes on profits because it is for his use. That he later separated from QUADRINI due to a difference in fees and the concept of doing the work. That QUADRINI wanted less fees and to carry out more procedures before Customs, with that he lost control of the operation. That QUADRINI wanted to advance his customs activity. That Rubén AMENDOLARA was an employee of the declarant and he did all the paperwork. That he later stopped working with AMENDOLARA who continued working for QUADRINI, which he considered disloyalty. That the possibility of forcing the import regime was never represented. That ten months after he stopped working with QUADRINI, his office was raided. That he knew Noe FRANCO as a dispatcher. That he met REQUIERE once QUADRINI went with him to his office. That he knew he was an importer after he left QUADRINI. That the commission agent can act without being an employee with a dependency relationship or as a free agent receiving a commission (making payments, loading and receiving the merchandise) or acting on commission. That AMENDOLARA was an employee in a dependency relationship of the declarant. That in 1993 it was very easy to register as an importer. That Customs values import dispatches, there is a department that regulates or compares the values, they must review all the values that are shown in the respective dispatches. That if that department observes the value, the importer can justify that value, if it does not, Customs revalues it.
Witness statements.
27. Angel Carlos GIANNATTASIO confirmed the complaint filed in the case. That it was initiated as a result of a complaint filed by a person who purchased a car, possibly Rosa FRAIMOVICH. That they detected the sale of imported cars at the GACHE and ARANGUREN agency. That the clients said they had not intervened in the import operations. He described the operation as it was reported.
28. Guillermo Claudio LANZON ratified his statement and acknowledged his signature on the technical report on pages 2099/2169. He said that to determine the market value at which the tax loss was determined, the prices of official dealer publications of imported cars were taken, prices below those of official dealerships, an average price was taken. That the clients paid more than the average price determined by the AFIP. That he did not see any invoices for the sale of cars from REQUIERE and QUADRINI, they were invoicing for an import management. That one of the people who purchased cars said that he had dealt with REQUIERE and the documentation was made in the name of QUADRINI.
29. Analía LOPEZ LEDESMA de GONZALEZ stated that she participated in the preparation of the technical report on pages 2099/2169 together with LANZON. That it was determined that the buyer was unwittingly the importer of the vehicle, who was importing under a regime that he did not know. That the values of the cars that were taken into account were those of ACARA, of national companies dedicated to this branch. That given the time that had passed, she did not remember further details.
30. Silvia Beatriz GROSSO, who was shown the proceedings on pages 898/903 and 2099/2169, stated that the investigation she carried out consisted essentially of asking the people who bought the vehicles about the purchase operation of the cars. That most of them did not know the special import regime, nor did they recognise the signature in the offices, nor did they know REQUIERE or QUADRINI. That what they saw at the car dealership was the only thing that appears seized according to the minutes. That most of the purchasers said that they had problems with the documentation. That they did not see any receipts for the sale of the cars at the dealerships.
31. Claudio SATALOVSKY confirmed what was stated in the reports on pages 20))72169 and 2836/40. He said that the invoices from foreign companies were in the name of the users. He also recognized signatures in the photocopied minutes on pages 996, 2100, 2107 and 2127.
32. Paula QUERIO de SILVA acknowledged her signatures in the proceedings on pages 170/171 and 2099/2169. She said that the persons who appeared in the respective import offices were investigated. She recalls that the invoices were in the name of importers and users. That at the time of delivery of the vehicles they had not been given all the documentation, that after the raids they presented documentation. That there were users who did not know REQUIERE or QUADRINI.
33. Walter Omar BENITEZ said that he had travelled to Spain for the investigations carried out in this case. That the investigation was brought to the attention of Customs. That the informant was a member of the Gite Group. That he recognised the documentation shown to him, consisting of the Catalana de Recambios folder.
34. Guillermo Diego JACOB said that he knew GACHE and ARANGUREN from buying cars. That he wanted to buy cars for each of his children. That they told him that the cars were at the port and that the nationalization process had to be completed. That he told them that his company was registered as an importer, so they told him that it was better. That the prices were better than in the market, there was a 5 or 8% discount for acting as an importer. That it was not an import with all the expression that this implied as a purchase abroad. That he did not see the customs documentation. That he did not know REQUIERE or QUADRINI. That he was never informed about the special import regime. When he was told that he received import clearance number 32483-6, he said that he did not recognize his signature and that the data was not true. That his address was registered on the Investra 312 invoice. That it is assumed that someone from the company GACHE and ARANGUREN requested the details of his company to use them as an importer. That Felix DOMENEC is a distant relative of his but is not the person who requested the details. That he accompanied the declarant to the agency a couple of times. Folio 15 of the documentation seized from OCAMPO is displayed, in which JACOB states that he does not know the person named. That all the details that appear in said documentation are correct.
35. Samuel Bernardino Felix BUSTOS HARM stated that at the request of the Head of the Fiscal Audit Division, Dr. PEÍA, information was requested on the importation of automobiles. That to date, in 1992, 1993 and 1994, imports were permitted through private individuals to import units for personal use. That differences in values were detected between the invoices and what was stated in the dispatches. That the real operation was carried out in Spain but before the Argentine authorities the purchase was listed with a Uruguayan company, including INVESTRA. That in fact there was no purchase abroad, but rather the cars were bought in the warehouse, at the Argentine customs headquarters, where the car was chosen. That the importer who appeared in the papers bought the cars in the warehouse. That for Customs there was only one importer who was the owner of the registration and the one who documents, the one responsible before Customs. That if you buy on behalf of a third party, a mandate from that third party must have been drawn up. That in normal operations in which agencies participated, they were the ones who imported and then correctly billed the user as an internal sale.
36. Sergio Hernán SIMONE, witness of the search at 689 Peru Street, recognized his signatures in the minutes on pages 141/146 and confirmed what was stated there.
37. Jorge Gabriel ALONSO, DGI inspector, participated in the search of Peru Street 689, recognized their signatures on pages 141/146, confirmed what was stated there, did not know COTRONEO or AMENDOLARA.
38. Daniel Horacio ROTELLA, DGI inspector, recognized his signatures 141/143 and 146, he did not remember the specific case.
39. Pascual Mario BELLIZI, sub-inspector of the Federal Police, participated in the raid on Peru Street 689, ratified the minutes on pages 140/146.
40. Alejandro Nicolás GERMINO, participated in the search of Santa Elena Street 611, acknowledged his signatures in the minutes on pages 155/7 and 160 ratifying said actions.
41. Francisco Antonio PONTORIERO participated as a witness to the search carried out at the address at Santa Elena 617. He acknowledged his signatures on pages 155/7 and 160. That he lived below the place where the search was carried out. That he did not know OCAMPO. That his wife lived there with another person and after her husband died another man appeared. That he regularly paid the rent. That this occupant had not lived there for long.
42. Rafael MUZZUPAPPA participated as a witness in the search carried out at the address at Santa Elena 617. He recognized his signatures in the minutes on pages 155/7 and 160.
43. Mónica Patricia BORGONOVO, inspector of the DGI, recognized her signatures on pages 155/157 and 160.
44. Andrés Gonzalez VEIRAS, inspector of the DGI, recognized his signatures on pages 155/7 and 160.
45. Oscar Andrés MOLINA, said he was a Federal Police inspector and recognized his signatures on pages 155/7 and 160.
46. Justo Ramón HUERTA, witness of the search carried out at Av. Libertador 8308, headquarters of the Trade Cars Agency, recognized his signature on pages 170/171. He said that he saw that documentation had been seized.
47. Claudio Mario ANTELO participated in the raid on the GACHE and ARANGUREN agencies. He recognized their signatures on pages 435, 436, 439, 442/53.
48. Gregorio TALABERA witnessed the search at the Gache and Aranguren Agency. He recognized their signatures on pages 435, 439, 442/453. He said that he was with JAIMES, a co-worker of his.
49. Guillermo Alberto WAISSMAN, DGI inspector, recognized their signatures on pages 435/453. He said that they had imported cars for sale when they carried out the search in GACHE and ARANGUREN.
50. Felix Alberto DOMENECH said that he knew GACHE and ARANGUREN. That he met REQUIERE at the car dealership that the named persons owned. That he had contacted him when a relative of his, JACOB, wanted to buy cars for his children. That the declarant was unaware of the car import operation. That he was told that he could buy a car in a bonded warehouse. That he received the cars in Martinez. That the declarant told JACOB that there was an import operation for cars of lower value. That there was a noticeably lower price for these cars. That there was an invoice from REQUIERE for his intervention. That he did not remember if he gave JACOB the information. That JACOB knew that the cars were going to be imported by his company JIGGERS because it was cheaper.
51. Juan Alberto CARNIGLIA said he had been head of the import clearance section from 1992 to 1994. That the declarant did not control merchandise.
52. Walter Eduardo ARCE, a public accountant, said that he worked for the AFIP. He recognized his signatures on pages 928, 939 and 940. He also recognized his signatures on pages 170/171. He said that it was an investigation into the importation of cars. He did not remember their characteristics.
53. Néstor SOSA said he was an accountant and an AFIP official. He recognized his signatures on pages 923/925 and 906/955.
54. Eliseo RASO acknowledged his signatures on pages 930, 933, 928, 939/40. That they summoned the persons who had purchased the vehicles to gather information. That the minutes confirmed what these persons had stated.
55. Aníbal RODRIGUEZ, who at the time of the events investigated in this case worked at Customs, and who was responsible for import clearances Nos. 152.136-6, 59772-9, 135.550-0, 081180-7, 12401-6, 43788-8, 185.867-2, 32483-6 and 15857-8, stated that in some of these clearances the value of the merchandise had been recomposed and in others it had not. The value recompositions were carried out according to the instructions given by the Valuation Analysis Division of Customs. Generally, when clearances were processed through the red selection channel, there were value recompositions.
56. Alcer REYNARD, who was shown import dispatches no. 152.136-6 and 59772-9, said that at the time of the events he was Head of the Customs warehouse and controlled the documentation. He was not aware of any complaints regarding motor vehicles.
57. Omar VACCARO said he was a Customs employee. He was shown import dispatches no. 152.136-6 and 59772-0 and he recognized his signature on the back of partial 2. That he received the file, consulted the list or table, and checked the data of the dispatcher and importer. That in 1994 he was Head of the Customs Bonded Warehouse. That he was not aware of any investigation into motor vehicles at that time.
58. Rosa FRAIMOVICZ that her daughter GISER handled the purchase and sale of a car that was registered in the name of the declarant. When it was shown that she received the import clearance number 170480-7, she stated that she did not recognize her signature. That since her daughter was not yet divorced, she asked the declarant to put the car in her name. That said car was stolen from the door of a friend's house and the insurance did not pay them since it later appeared.
59. Alicia GISER, who knew SCHOJET because he had sold her a car. That the aforementioned worked at the GACHE Agency. That SCHOJET told her that in a week she would have the Fiat Uno car like the one she saw at the door of the Agency. That he told her that they were imported cars. That he told her that the security was that she would appear in an import dispatch so she could stay calm. That the declarant only wanted to buy a car and she wanted it quickly and the cars in the market had a delay of one month. The INVESTRA invoice was shown and she stated that the price that appears there was less than what she paid for the car. That they told her at the agency to tear up the sales contract and to say that she had not paid the sum of seventeen thousand dollars. That she does not know REQUIERE or QUADRINI. That the car was registered in the name of her mother Rosa FRAIMOVICZ.
60. Gladys Fabiana KOSCIUZCYK said that she knew RIVEIRO RIVAS. That the declarant and her husband saw an advertisement in the newspaper and went to the aforementioned agency. That they bought a car but at no time were they told that they were going to be the importers. That they requested an invoice that they were never given. That the car was then stolen, she repeated the request for an invoice that she needed to claim from the insurance company, they did not give it to her, only a consignment note or document where it said import expenses. That the car later appeared all crashed. She recognized her signature in the minutes on fs. 1018 that there she found out when she saw the photocopy of the import dispatch that the signature that appeared there was not hers. Import dispatch no. 170480-7 was shown. She said that she does not know any INVESTRA company. That the car was removed from the agency.
61. Gustavo Gabriel MARTIN was shown import dispatches nos. 152.136-6 and 59772-9 and invoice on pages 5548.
62. Fernando Roberto MARTIN said that he knew Requiree from whom he bought a car. That the named person was dedicated to selling cars privately. That Requiree was going to import a car in his name. That the car that he offered him was cheaper than those offered on the market because there was no agent involved in the operation, as he understood. That he made an advance payment of eight thousand dollars, extending a deposit contract. He exhibited that it was the Import Office No. 208712. He stated that the personal data that appear on it are his, but the signature that appears there is not his own handwriting.
63. Patricia DAGRADI, who was shown the Import Clearance No. 146466/6, stating that the personal data corresponded to her, but she did not recognize the signature stamped there as hers. In this state, the appearing party provided original documentation consisting of: DGI Form F.3004, 001 N? 062812 and 062813, invoice No. 17 from the Trade Cars firm; Invoice 000190/000223 Quadrini, Victor Adrián, import-export, photocopy of the Banco Nación form quadruplicated for taxpayer No. 8981224; photocopy of Import Clearance 146466-6 on 4 pages and photocopy of the in-voice invoice from the Peugeot Sodexa firm. That she did not know who had imported the car. That from the TRADE CARS agency her husband knew Gonzalez. The statement on pages 2369 was read, after which, the contradictions were brought to her attention in that on that occasion she stated that she was the purchaser of the car in question, the one who paid, the one who received the papers and now, in the present debate, she related that the car was bought by her husband, that he took care of the paperwork, that it was a gift that he gave to her, that it was her husband - who died in 1997 - who dealt with the TRADE CARS agency, with Gonzalez certainly because they both knew him. Regarding this matter, the declarant stated that she was not questioned about the above when she made her statement before the Court of Instruction.
64. Alejandro ODORICO said that he met Requiree through an acquaintance of his named Carlos GRECCO who introduced them. That Requiree sold him a car. That he dealt with REQUIERE, that he went to his house when he made a down payment and then went to an office in Belgrade and dealt with the person who did the import. That this office was on Juramento Street. He was shown that he was given Import Office No. 1412467 and stated that his personal details appear on it but the signature is not his. When he was shown the deposit receipts from Banco del Buen Ayre, he stated that Requiree asked him to put them in Quadrini's name.
65. Ricardo COHEN stated that he knows Jorge REQUIERE because he is a resident of Castelar and goes to the same hairdresser. He was shown ID No. 081180-7 stating that the importer was Jorge -Requiere-. That he gave him the money for the car in confidence, without any receipt. That, first he gave him a deposit that he did not document. That, Jorge Requiere was doing the paperwork. That, he went to the port to get the car and there, he met Quadrini, saw the car lowered with the crane and then he left driving the vehicle. That, regarding the signature on the order, he did not recognize it as his own handwriting and it did not bear any similarity to his own. He clarified that the personal data recorded in the order were correct. That, he wanted to buy an imported car because they were not manufactured here. It was shown that the Peugeot Sodesa ticket was in the import office, which was shown with the folio number 160, the declarant stated that he did not remember it.
66. Daniel Alejandro CORBETTA said that he knew Quadrini, Requiere, Gache and Aranguren, having visited the Agency of the last two of those named on several occasions. That, on one occasion, Requiree made him sign a dispatch when giving him money to buy his car. That, they also gave him some invoices for the intervention in the import. When the invoices that appear on pages 2653/54 were shown to him, he recognized them as the invoices that had been given to him by Requiree. When he was shown ID No. 141.260-3, he stated that the personal data that appear there were correct, as well as his signature. When ID No. 18.727-1 was shown, he stated that the personal data were correct but he did not recognize the signature, adding that that signature did not resemble his own. That, Requiree imported the car to him and sold it to him. That he knew Julio González because he was a relative of Eduardo González, who had a dealership in Chacarita. That he did not know Ouville or Rodolfo del Castillo. That he knew that the Fiat car was imported for him, paying between 11.000 and 12.000, but he could not specify the exact price. That he may have seen Julio González at the Gache and Aranguren dealership.
67. Gustavo Daniel MARTIN, who was shown the import dispatch No. 59.772-0 and 152.136-6 and the invoice ending in 0017 from Ouville. That he did not know Julio González, nor Del Castillo, nor the firm Ouville.
68. Alejandro HORNER said that he knows Alejandro Gache and that Fernando Aranguren is a friend of his family. He bought imported cars from both of them on several occasions. He was shown the import clearance number 152.136-6 and the invoice from Ouville ending in 0048, and he acknowledged having seen that invoice. The declarant stated that he went to Ouville's office but did not remember who he dealt with there. When asked if he recognized any of the people present in this Courtroom, he stated that he only recognized Mr. Gache and Mr. Aranguren. He picked up the car from Gache and Aranguren's agency.
69. Juan BERMUDEZ, who was shown the Import Clearance No. 185.867-2, stated that the personal data contained therein are his own, but that the signature that appeared there was not his own. After showing the photocopy of the statement he made before the DGI that appears on page 952, he recognized his signature, confirming what was stated therein. That, through the Diario Clarín, he went to a car dealership, which caught his attention because the price was cheaper than at other dealerships. That he gave a deposit and two days later they gave him the car. That they told him that they had to bring it from Uruguay, that they would cross it immediately. That the van was delivered to him at the Agency. That he received an invoice for registration fees and as soon as he read his statement on page 2322, he stated that he confirmed all of its content. That the signature on the import dispatch that was shown to him is not his own and does not bear any similarity.
70. Silvia Elsa VEGA, who was shown ID No. 179.855-6, stated that the personal data contained therein are hers, but that the signature is not hers, nor is it similar. After reading the testimony statement on page 2437, she stated that she ratified her signature, clarifying that the procedure and everything related to the papers was carried out by her husband. After being shown the documentation on pages 2497/98/99, she stated that she did not remember it. When asked if she knew any of the people present in the courtroom, she stated that the only one she knew was the man with the moustache, like Mr. González, who attended to them at the agency - pointing to the accused Néstor Juan González. That they paid for the car at around 12.800 pesos, that her husband paid for it, that he brought the money. In this state the witness stated that about this operation they can ask her husband who is in the room and his name is Victor Alberto MAZZA
71. Víctor Alberto MAZZA said that at no time was it explained to him that the car was going to be imported by him or his wife. That, when they went to the DGI and to the Courts, he always accompanied his wife in order to give the explanations of the case, which he always spoke about. After the invoices that appear on pages 2497/99 were shown to him, he stated that all three were given to him by Mr. Gonzalez.
72. María Elena PIERRETTI said that she met Quadrini as the boyfriend of a distant cousin of hers. She was shown the import order No. 141.266/5 and stated that his personal details were correct, but that she did not know the signature on it. She said that she paid around 10 pesos for the car, and that María Celeste Cersosimo is the sister of Andrea, her distant cousin.
73. Antonio Roberto AVILA said that he never bought a car from Jorge Requiere. That he never did business with Requiere. That he met Jorge Requiere through his son-in-law Carlos Salas, who was a friend of Jorge's father. That he never owned a foreign vehicle. That he never bought a car from him. That he believes he came once years ago to give a statement. That Graciela Ávila is his daughter and he never had an imported car. When he was shown that Import Clearance No. 12.401-6 was issued, he did not recognize his signature on it. When he was shown that the statement made before the intervening Court of Instruction was issued, he stated that he recognized the signature on it as his own. He then stated that he knew nothing about this matter. His statement on pages 2585/vta was read in light of the contradictions that arose with what he had declared on that date. The witness then stated that it was a family matter, that he never owned an imported car and neither did his daughter, that what he said in that statement is not true. That he does not remember why he made that statement. That his son-in-law had a car sales agency on Maipú and Paraná streets, Martínez, province of Buenos Aires. That he had health problems, he suffers from depression and had a heart attack and a blood pressure attack. That they had a business relationship, they made him appear. That when he came to testify he came with a lawyer named De Vitto and his son-in-law, that they were present when he testified in court. That someone had to have told him what he had to say before testifying. That he never saw the Investra invoice – it was displayed during the act and was added to the import dispatch. That he remembered that his daughter also came to testify that day. That he never saw his daughter with an imported Peugeot 205 car. That he takes medication LOTRIAL, HALL, LEXOTANIL That he has a normal family relationship with his son-in-law. That he did not say anything to his son-in-law that he was coming to testify today.
74. Graciela Elvira AVILA stated that she knew Jorgito -Jorge REQUIERE- because she was a flight attendant and flew with the father of the named. The witness gave an account of the events. She said that she contacted Jorgito Requiere because he brought cars. She asked him if he could bring her a Peugeot 205, that she really liked that car and had some money saved up, and he replied that he could. She was shown the Importation Clearance No. 12401-6 stating that the personal data contained therein belonged to her and that she did not recognize the signature as hers.
75. Luis Arnaldo JOFRE said that he knew Requiere's father and Jorge Requiere, since he works as a taxi driver for Aerolíneas Argentinas and that he has taken Jorge Requiere's father to his house on several occasions. That, for the purchase of the car, he first gave Requiere the sum of ten thousand pesos and the latter did not give him any receipt. That he gave it to him verbally. That it was the only opportunity to have an imported Okm that would be cheaper for him between six and eight thousand pesos less. When he was shown that he received Import Clearance No. 11.594, he stated that the data entered are his, but not the signature inserted there. When he was shown that he received receipt No. 076 issued by Requiere, he stated that he gave it to him as payment for tariffs and he assumes it is tax expenses. That it was a comment circulating in Aeroparque that Requiere's son drove cars. He knew that Requiree had to import it. That the car was from France. When he was shown the invoice from Investra 269, he stated that he had never seen it. When asked if he recognized any of the people present in the courtroom who were present with Requiree when he picked up the car at the port, the deponent stated that he did not.
76. María Fernanda AMARANTE said that she bought a car at Trade Cars. That she paid all the money at Tade CARS. That she did not remember which person from that agency helped her. When it was shown that she had received import clearance number 136.547-1, she stated that the personal information was correct but the signature that appears there was not hers. Then her statement made on page 2352 was read to her. That the declarant did not remember Quadrini. That she believes that he could have been the employee who helped her. That what interested her was how fast the delivery of the car was going to be. That she wanted to buy a car and that car was not at the agency but they did have it. That she did not remember having gone to the port to see the car. That the car was delivered to her at the agency.
77. Osvaldo Julio VIDAL said that he was Miguel Cotroneo's accountant and that he met Requiere and Quadrini in Cotroneo's office. That what he needed was an importer to be able to bring a car for him. That he did not buy the car abroad, that he ordered it from Requiere and Quadrini because they knew where to buy it. That he dealt more with Quadrini than with Requiree, but he knew them both. That the form of payment was agreed upon as the full cash on delivery of the car. His statement was read in the pertinent part on page 2517, stating that given the time elapsed to date it is probable that the payment was as he had reported on that occasion. That he did not remember the event very well now. That he had no dealings whatsoever with Amendolara in the importation of this car. That he knew that Amendolara worked in Cotroneo's office.
78. Javier Hugo VAZQUEZ IGLESIAS said he was a businessman and a friend of Luis RIVERIRO RIVAS. The informant bought a Ducato van from RIVEIRO RIVAS's dealership, who offered him a brand new one. He was shown import clearance number 0-170.459, on which he did not recognize his signature but did recognize his personal details. He said he did not know REQUIERE.
79. Hernán Dario TOMASINI said that he knew SCHOJET and bought two new cars from him, a Fiat Uno and a Fiat Tipo. He said that he met Pedro SCHOJET at an ice cream shop named Romini located in La Lucila, on Av. Libertador. He said that he was friends with the aforementioned. He decided to buy from him because he delivered the cars quickly. He also saw QUADRINI at the ice cream shop but did not deal with him. He did not use his importer registration to import these cars. He did not know why his details appeared on page 15 of the documentation that was shown to him and which was seized at Ocampo's home. After the respective import dispatches were shown to him, he said: in relation to dispatch no. 18727-1, he clarified that it was not his signature but his personal details, regarding no. 21 said that the signature that appears there is not his signature and the office whose order number is 48 said that the signature that appears there is not his but it was similar. When he was shown the request for transfer of ownership, he recognized his signature but did not remember when he had signed said document.
80. Andrea CUCCURULLO said that she bought a car at the Trade Cars Agency together with her current husband, Marcelo Eduardo TORTOSA. She did not recognize the documentation that was shown to her (import clearance no. 160480-0, Investra invoice on page 2567, invoice on page 2568). She also did not recognize the people who were in the room.
81. Marcelo Eduardo TORTOSA said that, together with CUCURRULLO, they bought a car at the Trade Cars Agency. That he did not know who imported the car. That he did not know REQUIERE. That he obtained the sufficient papers to register the car.
82. Mónica Laura HERREROS said she was a flight attendant and that she knew QUADRINI's father, who was a pilot. She also knew REQUIERE's father, who worked for Aerolíneas, and that she later met his children. She knew that her son imported cars. She bought a car from him, which she returned after two days because it had problems. She bought it from QUADRINI because he would deliver it to her faster than if she bought it from any agency. She said it was delivered to her at a car agency. When the import clearance no. 11594 was shown, she said she did not recognize his signature.
83. Marcelo Eduardo CACCIA said that he bought an Italian car, a Fiat that he liked better than the one made here in the country. That he did business with QUADRINI. Import clearance number 141246 7 was displayed, recognizing his signature on it. That he signed the documentation in an office located on Juramento Street, in Belgrano. In court, he also identified REQUIERE, saying that he knew him from having seen him at the port but he did not know his name.
84. Irma POLCI went to buy a car at a car dealership located on Av. Libertador and Ramallo. She went there because she saw an advertisement in the newspaper. The invoice she provided when she testified before the investigation was given to her at the dealership. She did not know QUADRINI. She was told that she had received import clearance number 16868 5 and said that she did not recognize his signature.
85. Patricio PERALTA RAMOS said that he bought an imported Fiat Uno car at the Gache and Aranguren Agency. That there was a difference in the delivery time of the car compared to other agencies. That when he delivered a first payment of ten thousand pesos by check, they gave him a provisional receipt. That he requested the correct purchase receipts and they gave him an invoice in the name of Investra. That he then delivered another check for a payment of six thousand five hundred pesos. He ratified his statement on page 2112. That he continued looking for his invoices and when he last went to the agency, it had been raided.
86. Armando ODORICO said that his brother bought a car and that he was the one who picked it up from the port. He did not remember any documentation. The person who gave him the car had told him something about the papers, that he should say something, but he did not remember any further details.
87. Gustavo Daniel DI MENNA said that he asked QUADRINI to buy him a car. He was aware that QUADRINI managed the importation of vehicles. He was shown the import dispatch no. 275.416-7, recognizing his signature.
88. Carlos Alberto SALA said that he did not buy or import any car. That when he retired from the Federal Police he registered as an importer but never used that registration. That he did not recognize the import clearance numbers 32283-0 and 32289-2.
89. Carlos VERNESE said he was a Customs broker. That he was OCAMPO's brother-in-law and a friend of AMENDOLARA. That he was in charge of issuing vehicle certificates for AMENDOLARA and OCAMPO. That he saw those named at Customs, not at the port. That he does not know what tasks those named performed around 1993, 1994. That for his work as a broker he earned approximately thirty pesos per dispatch. That he met REQUIERE and QUADRINI in a bar. That he does not know if those named imported cars.
90. María Celeste CERSOSIMO said she was QUADRINI's sister-in-law. She said she had bought a Fiat Uno from the man named above. She did not remember any further details. She went to the port to pick it up. She recognised his signature on the import dispatch no. 141.251-1. She did not have the car's documentation because she had given it all up when she sold it.
91. Daniel ITURRIZA said that he knew REQUIERE. That a friend introduced him to him. That he bought a car from him at the end of 1993. He was shown import clearance number 11429, which did not recognize his signature. That when he testified before the DGI he provided the documentation that he had.
92. Roberto Oscar ALVAREZ said that he asked QUADRINI to bring him a car from abroad. That it was cheaper than buying it elsewhere, he did not know why. He was shown that the import clearance number 136.261-9 was sent to him, but he did not recognize his signature but did recognize his details. That QUADRINI did not tell him how he had to bring the car. That he did not know COTRONEO.
93. Lorenzo Ariel MASSI met GONZALEZ and bought a car from him at his agency. He was shown that the import clearance number 141251 was issued and he did not recognize his signature.
94. Alba Beatriz KOTLER and Hugo Omar ABALO, public accountants, acknowledged their signatures in the accounting appraisal carried out in the proceedings. ABALO stated that they had seen the corresponding import dispatches and the declarations made by the purchasers of the vehicles.
95. Eduardo Santiago GONZALEZ said that he owned a car dealership. That he had a nephew named Julio Alberto GONZALEZ, who once worked with the declarant.
96. Manuel GONZALEZ said that he knew Rodolfo DEL CASTILLO as a client of his dealership. That Julio GONZALEZ was the son of one of his employees, who worked at his car dealership. That he knew GACHE and ARANGUREN since they were merchants in the area. That Julio GONZALEZ once left three or four cars at his dealership. That Julio GONZALEZ was in the car sales business and DEL CASTILLO did the customs paperwork for him.
97. Miguel Angel GALEANO said that at the time of the events he worked in Customs. That he determined the value of imported goods that arose in import clearances. That on some occasions it was necessary to recompose the value of the declared goods and for this purpose parameters were used to compose the price paid or payable taking into account the principle of reasonableness of the price. Import clearances were shown to him. That there were selectivity channels in Customs; if the documentation had a green channel it was not controlled, if it had an orange channel only the documentation was controlled and in the red channel everything was controlled. A purple channel was also later implemented. That it was possible for an import clearance that had a green channel to be passed to the red channel. That the valuation is carried out clearance by clearance.
98. Jorge Raúl MILLET, a handwriting expert who carried out the handwriting examination in the case, said that he recognised his signature on it and that he ratified it. He detected among the signatures some that were false without imitation and others that were false with imitation. During the trial, he was shown import dispatches no. 185367, 170480, 136147, 146446, 16868, 179855, 135174, 141241, 170459 and the statements on pages 2323. 2324, 2352, 2339, 2387, 2427, 2659, 2777 and 16868 determining that the signatures therein, in the respective offices, were false without imitation, clarifying that there was no signature in office XNUMX.
III. Attributable shares
Regarding the defendants REQUIERE and QUADRINI
Tax evasion
99. The first of the charges against these defendants is that of having evaded the value added tax (VAT) during the fiscal year 1993 through three evasion methods: commercial sales transactions without receipts, sales documented only with hussar receipts and delivery of invoices or receipts under the heading of import services. According to the accusing parties, such conduct is typically adapted to the provisions of arts. 3 and 1, paragraph b of Law No. 2.
100. For the purposes of the respective treatment, it is necessary to first determine whether the objective condition of punishability provided for in art. 8 of Law No. 24.587 - applicable to the case because it is a later, more lenient law (art. 2 of the CP) - is satisfied.
101. In this light, it must be assumed that the defendants REQUIERE and QUADRINI formed a de facto company for the importation of the motor vehicles that are the subject of this proceeding. As is known, a de facto company is one that operates as such without having been established, and therefore enjoys a precarious legal personality. The broad evidentiary freedom that even the law on companies itself allows for proving the existence of a de facto company when it is a third party contracting party (art. 25 of the aforementioned law) is also applicable to the case, given the existence of sufficient objective guidelines that prove it. In this sense, the de facto partnership formed by REQUIERE and QUADRINI is considered to be proven by the friendship between both, the identical profession of both (airplane pilots), the original import of a car for REQUIERE with the participation of both (declaration on fs. 3008 back incorporated by reading), the subsequent registrations of both as importers, the payment of commissions to the co-defendants OCAMPO and AMENDOLARA indistinctly with the end users' own money (same declaration), the common contacts between the named REQUIERE and QUADRINI on the occasion of the exporting companies in Chile (same source), the shared trips between both or one or the other to the countries of the companies abroad (id.), the collaboration of another friend -Federico Classen- in the activities that both carried out, the use of the same office, indistinct roles as managers or recipients of the commissions (conf. Testimony of Alejandro ODORICO during the debate) and the indistinct ownership of both in the import offices mentioned, among other equally objective guidelines. The economic reality that emerges from the aforementioned evidence clearly indicates the existence of an irregular company existing between those named in relation to the common object of importing motor vehicles (arg. Art. 2 of Law No. 11.683).
102. Based on the concept of a de facto partnership existing between the aforementioned parties, it is not possible to individually consider the various VAT evasions during the aforementioned year 1993 for the purposes of determining the amount evaded for the sake of the objective condition of punishability already referred to.
103. The next step for the purposes of determining the amount evaded is to establish the amount of the tax liability. As is known, such liability arises from applying the value added tax (VAT) rate to the sales prices of the transactions under investigation, understood as the minimum market value, as established in the accounting appraisal carried out in the supplementary investigation.
104. Next, the amount of the tax credit must be established based on what arises from the purchase operations that originated the sales indicated in the previous paragraph.
105. In the above sense, it is observed that there is a certain coincidence between the accusing parties and the defense of the accused REQUIERE and QUADRINI in that, in their respective arguments, both admitted that the tax debit in this case was the amount of $261.914,88. There is also agreement between these parties regarding the tax credit, which was estimated at the sum of $165.951,00. Subtracting the tax debit from the tax credit, the resulting sum reaches $95.963,88 and, as can be seen, does not exceed the $100.000 established by Law No. 24.587.
106. The accusing parties considered that such limit was exceeded in this case by establishing the amount of the increase for sales made to unregistered taxpayers. In this regard, they estimated that the amount evaded corresponding to the 1993 fiscal year in relation to VAT reached $139.056,43, which was reduced to $116.968,65 by applying the average price established in the aforementioned accounting appraisal for the number of vehicles subject to the respective transactions. This figure, then, exceeded the floor of the aforementioned provision of Law No. 24.769.
107. However, it must be considered that in the present case there are not two marketing stages for the aforementioned increase to be possible. In fact, it is not a stage where the importer sells to a third party who then markets the units in question to the final destination, but rather the importer and the alleged intermediaries formed a single decision-making unit removed from these marketing stages (see considerations set out in the following paragraphs). If this were the case, it is not appropriate to apply the increase for sales to non-registered taxpayers (art. 2 of the VAT law).
108. Without the application of this increase, as has been seen, the objective amount of punishability is not reached, regardless of the methodological basis used to determine the amount evaded. It goes without saying that art. 2ª inc. b of law 23.771 is not applicable to the case, since it is not possible to determine the total tax obligation of REQUIERE and QUADRINI in order to extract, from it, the 40% referred to by the law.
109. Given that the Court has considered the increase in VAT for sales to non-registered taxpayers to be inapplicable, the argument that the named persons had ceased to act as withholding agents is inapplicable. In accordance with the above, the final charge against the aforementioned defendants will not include the commission of the crime of tax evasion which, as stated, was combined by the accusers in ideal competition - art. 54 of the Criminal Code - with the crime of smuggling.
Smuggling
110. The first point to be clarified is linked to the affectation of the legal interest that tends to protect the crime of smuggling, due to the conduct attributed to the defendants in this case. In this sense, with the evidentiary scope that will be explained later, it is considered proven that numerous imports of automobiles were simulated under a certain regime or that the purchase values at origin were under-invoiced, with the evident purpose of obtaining an economic end either by omitting the payment of certain taxes or by paying them in a smaller amount than what would have been legally due.
111. The control that the laws attribute to the customs service on the occasion of the import or export of goods refers, in principle, to the functions that are expressly assigned to it in art. 23 of the CA -conf. CSJN, Fallos 312:1920-. Among such powers is expressly that of applying, liquidating, collecting, returning and inspecting the taxes whose application, liquidation, collecting, returning and inspecting are or were entrusted to it (art. 23 inc. C of the CA).
112. According to Executive Decree No. 2677/91 (rules for the reorganization and regulation of the automotive industry and the importation of automobiles) and general resolutions of the DGI No. 3431/91 and 3543/92, individuals and legal entities were allowed to directly import new automobiles in makes and models that were similar to those imported by automotive manufacturers. These regimes provided for two possibilities, depending on whether the vehicles were imported for personal use or for subsequent commercialization. For the purposes of one or the other import possibility, different taxes and customs duties were established to be paid. Thus,
a) In the case of imports of motor vehicles for personal use by individuals or legal entities, the FOB value of the unit had to be indicated in the respective import clearances. The following taxes were applied to this value: 18% value added tax (VAT), 10% customs duties -statistics- and 20% surcharge or special tax.
b) In the case of importing motor vehicles for sale, 8% VAT and 3% income tax were added to the taxes mentioned above.
113. It is known that the criminal types that comprise the crime of smuggling share the characteristics of the so-called blank penal laws (e.g. the hypotheses of arts. 863, 864 incs. A and c and 866 of the CA). In the case, the cited resolutions of the Executive Branch No. 2677/91 and following, are shown as an adequate specification of the generic conduct determined in the CA (conf. CSJN Fallos 312:1920 and the citations made therein).
114. The main of the maneuvers exposed, as will be seen in the following paragraphs, was generally carried out in the following manner: those interested in acquiring an imported vehicle - either through direct knowledge of the importers or through the intervention of a car dealership - were warned that their vehicle was actually going to be imported, but instead they were omitted to be told, in most cases, that their name as the end user was going to be used in the respective customs documentation. In this way, the import regime to be applied was that corresponding to an import for personal use - with the application of certain taxes - while strictly speaking the import was for marketing said vehicles and therefore avoiding the other taxes that corresponded. As will be seen, in most of the import dispatches subject to this ruling, even the signatures of the buyers or end users were falsified, and it should also be noted that in no case was a sales invoice issued for the acquisitions in question.
115. Another form of the smuggling crime charged here consisted of under-invoicing the FOB purchase values of vehicles whose taxable base made it possible to pay lower taxes.
116. Given the conflict to be decided in these terms, there seems to be no doubt that the simulation of the import operations referred to or the under-invoicing in this case were directly linked to the affectation of the control of the customs service for this type of operations - inspection of the corresponding customs and fiscal taxes - with the aim of obtaining an economic benefit. Accordingly, the detailed conduct finds legal framework in the crime of smuggling provided for in arts. 863 et seq. of the CA. Furthermore, the present interpretation has been expressly accepted by the CNCP in case no. 1336: Zankel Juan Adolfo Ramón et al. s/ appeal for cassation, chamber III, reg. 105/98 and Neder Jorge et al. s/ appeal for cassation, chamber II, reg. 856/96.
117. Before entering into the treatment of the responsibilities of each of the accused, it is appropriate to highlight that the Court will not proceed to weigh one by one the numerous questions introduced by the parties or the also numerous pieces of evidence incorporated into the process, but only those that are considered relevant to base the conclusions in question (doctrine of the SCJN of Rulings 308: 2262, 2265 and 2475).
a) Jorge Damán REQUIRES
118. In his report, it is fully proven that he proceeded, in his capacity as authorized importer, to import the vehicles covered by the clearances referred to in Annex I of this document with express knowledge of the respective import regime (hereinafter the clearances in question will be identified according to the order numbers given in the aforementioned annex). In this regard, the connection between the accused and the members of two automobile agencies has also been proven: Trade Cars and the agency run by the accused GACHE and ARANGUREN, and the necessary intervention of customs service assistants in the respective procedures.
119. From his own statements included in the instruction (pages 3008; incorporated by reading during the debate) it appears that his registration as an importer was when he began importing a large number of cars (it should be remembered that his main activity was that of an airplane pilot). Prior to that, together with his friend QUADRINI, he apparently imported a car for his personal use and there he became aware of the different automobile import regimes in force at that time. In that sense, REQUIERE expressly admitted having been aware of the existence of the two import systems in force at the time of such operations, that is, that he was perfectly aware of the differences existing between an import made for personal use or for marketing.
120. According to his version, there were two perfectly delimited instances in the importation of automobiles in which he intervened, according to the final recipient of the same. The first, related to the demands of a group of friends or relatives. The second, if you want more expansive, is when he contacted the car dealerships Trade Cars and GA Automores (the imports that were carried out for the firms Carlos Sala SA and Toyo Pamp should also be included in this period, according to his statements on fs. 3447, declaration incorporated by reading).
121. Already in full import activity, he was in contact with the dispatch assistants OCAMPO and AMENDOLARA, who received the corresponding commission for each import, agreed in advance and paid jointly with the co-defendant QUADRINI with money from third parties (referring to the buyers of the cars). The commission agents were in charge of the customs procedures. Regarding these, and in relation to the matrices of the import dispatches, he noted that although OCAMPO and AMENDOLARA and he were in charge of obtaining the respective signatures, at other times he signed such matrices himself, aware that the location of the person was not immediate or it was a friend. Regarding the purchases abroad of the cars to be imported, the connection with the alleged Uruguayan company Investra SA meant that he in turn had contact with the European companies Catalana de Recambios, Levansemar and Servicio Prades. There were also express contacts with the firms Sodexa (France) and companies from Iquique (Chile) and Panama.
122. The structure thus assembled was carried out in the importation of the one hundred and sixty-five (165) automobiles whose income configured the procedural object of this case (see details in Annex I of this document). In almost all of these operations, the importers were the defendants REQUIERE and QUADRINI. In the import dispatches whose order numbers are 1, 2, 3, 4, 5, 6,7, 8, 9, 10, 18, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61 and 2677, it can be seen that the automobiles had one or more end users. However, in general terms, the imports were not carried out on behalf of and by order of these third parties through a tacit mandate, but by the aforementioned defendants with the invocation of the end user to avoid paying the taxes in question. The testimonies of MAZZA, POLCI and AMARANTE received during the trial (among others) and those of MAGALHAES and CRESCENTI (among others) incorporated by reading fully prove that the end users were unaware that they were going to be the real importers of the vehicles they acquired. So much so that the witnesses JACOB, FRAIMOVICZ, KOSCIUZCYK, DAGRADI, ODORICO, COHEN, CORBETTA, BERMUDEZ, VEGA, MAZZA, PIERRETTI, Graciela AVILA, JOFRE, AMARANTE, VASQUEZ IGLESIAS, TOMASINI, HERREROS, POLCI, ITURIZA, ALVAREZ and MASSI did not recognise during the debate the signatures attributed to them on the respective matrixes of the offices, signatures that did not even attempt to falsify the originals but were merely imaginary signatures (conf. calligraphic expertise carried out by the expert MILLET). However, as it arises from the aforementioned customs documents, the taxes paid for such operations were not those corresponding to the imports of motor vehicles for commercialization but those applicable to imports for end users (decree PE 91/XNUMX and related decrees).
123. It should be recalled once again that DGI resolutions No. 3431 and 3543 established the requirements and other conditions for making effective the value-added tax (VAT) and income tax collection regime respectively. It was expressly established (Art. 6) that importers must record, as a sworn declaration for all applicable legal purposes, the destination to be assigned to the imported good. For this reason, the legends signed by both REQUIERE and QUADRINI in the respective import dispatches after the false signatures of the purchasers to the effect that the merchandise … is a consumer good owned by the third parties, signatories previously, who are physical persons, undoubtedly warns of the former's certain knowledge of the improper import they were carrying out.
Furthermore, in some dispatches in which they intervened as importers, express reference is made to decree no. 3431, such as for example in dispatch number 51 (Roberto Enrique FELIS). Furthermore, the existence of more than ninety (90) receipts issued in February 1994 by REQUIERE and QUADRINI informing third parties of fees for import services seems to further strengthen the alleged smuggling behaviors, taking into account the occurrence of the events -1992 and 1993-, the difficulties of the interested parties in obtaining some documentation relative to the purchases of the vehicles and the imprint of those receipts, suggestively also from February 1994.
124. It is noted in this chapter that it has been fully proven that the defendants REQUIERE and QUADRINI formed a de facto partnership whose common object was the improper importation of motor vehicles, under either of the two modalities referred to above. Therefore, the acts for which the final reproach will be applicable must be considered to have been committed by both, given the inseparability of their conduct. In relation to the modality referred to in this chapter, the accused REQUIRES must answer as author (arts. 881 of the CP and 45 of the CP) of the crime of simple smuggling (art. 864 inc. B of the CA) aggravated by the intervention of more than three people and for having used false customs documentation (art. 865 incs. a and f of the CA), in real competition - 41 facts, namely: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 18, 21, 22, 24, 25, 26, 27, 28, 29, 30, 33, 34, 41, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60 and 61). The qualifying factor of three or more persons occurs with respect to the wilful intervention of QUADRINI, GACHE, ARANGUREN, OCAMPO, AMENDOLARA, RIVEIRO RIVAS, GONZALEZ and SCHOJET, to whom, as will be seen later, the specific qualities of authorship and participation will be attributed. The aggravating factor of art. 865 inc. f of the CA is applicable based on the forged signatures in the respective matrices of the import offices, without requiring the existence of harm, since the aggravating factor is based on the mere presentation of a document in that form, independent of the success of the maneuver or the harm that the crime of forgery does require in the CP (conf. Also the doctrine of the cited Zankel ruling). For the purposes of this aggravating circumstance, it is especially noted that the signature operations in the respective import offices' headquarters were carried out by REQUIERE or QUADRINI (AMENDOLARA's statement on page 3444 incorporated by reading). The facts referred to concur with each other in a real manner (art. 55 of the CP). In relation to the latter, any form of continued crime can be ruled out based on the fact that in the facts in question there is no typical unity of action with a continuing intent, in which each partial act is a continuation of the same previous psychic line (Conf. German Criminal Law, Han Welzel, 1976, p. 308 et seq.; Criminal Law - General Part, Enrique Bacigalupo, pp. 418 et seq., 1987). In the case, each improper import clearance constitutes an independent fact, to the extent that its activity is exhausted in its own existence.
125. The accused REQUIERE is also charged with the crime of smuggling by means of under-invoicing. In this regard, the correlation between the original invoices issued by the firms Catalana de Recambios SA and the invoices issued by the companies Investra SA and Levansemar SA corresponding to the import dispatches whose order numbers are 11, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42 and 43 shows a substantial difference with respect to the purchase values of the respective vehicles (compare the documentary annex attached to fs. 2876). In this regard, the invoices of Investra SA. and Levansemar have a lower FOB value than the originals from the European firms, this value being taken into account as a taxable base for the purposes of setting the respective customs taxes. Furthermore, neither Investra SA. nor Levansemar as service companies (warehouse of goods in transit - see the request of the Uruguayan RO reserved Secretariat) and loader respectively were dedicated to the commercialization of vehicles, according to REQUIERE's own statements and the letterheads existing in the respective invoices. The issuance of such invoices and their subsequent addition to the respective customs documents were fueled by a fraudulent conduct of undue exemption from fiscal and customs taxes to be paid on the occasion of each import (it should be noted that REQUIERE knew about the automobile import regimes under which they were introduced into the market).
126. The report on page 2876 corresponding to the customs documentation collected from the Spanish Customs Office, a report that forms the basis for the charge in question, does not appear to have been incorporated outside of any procedural rule, affecting the right to a defence in court. In this regard, it is worth noting that the National Customs Administration exercises police power in relation to customs offences (art. 23, subsections. m, n, ñ, o, etc. of the CA) and that this case is precisely about the offence of smuggling. For this reason, the investigation carried out in Spain within the framework of its natural powers and which resulted in the aforementioned report on page 2876, does not appear to have been incorporated outside of any procedural rule, affecting the right to a defence in court. 1026 does not violate any procedural rule, which is the maximum when the National Customs Administration itself exercises jurisdictional functions over the crime of smuggling itself (art. 2888 of the CA) and the request of the acting official was expressly stated in this sense on pages 2889 back/XNUMX. Furthermore, the investigation of the case was the result of a similar maneuver with another importer that was being investigated by the Federal Court of the city of Córdoba (Province of the same name).
127. The legal qualification that applies to these facts will be that included in arts. 864 inc. b and 865 inc. a of the CA. The aggravating circumstance plays a role in the case with respect to the fraudulent participation of QUADRINI, OCAMPO, AMENDOLARA and REQUIERE himself. The facts also concur in a real manner (art. 55 of the CP) - twenty-two facts. It should be noted that there is an ideal concurrence (art. 54 of the CP) since the facts resulting from import dispatches nos. 24, 25, 26, 27, 28, 29, 30, 33, 34 and 41 share both qualifications.
a) VICTOR ADRIAN QUADRINI
128. There are many common issues that unite this defendant with the named REQUIERE. Thus, his registration as an importer around 1992 with the intention of acquiring automobiles, his knowledge at that time of the import regimes in force, his trips to Chile for the purpose of connecting with local importers, his relationship with the COTRONEO agent or with the AMENDOLARA broker, his contacts with the firms Investra or Sodexa, his subsequent dealings with the Trade Cars and Gache Aranguren car dealerships, the transfers of the cars arrived to the respective agency, to cite just some of these issues.
129. Although in his statement on pages 3014 he placed special emphasis on the fact that the business between him and Jorge Requiere was completely independent, each dealing with his own clientele, it is worth reiterating in this case the proven existence of a de facto partnership for the purposes of importing motor vehicles and its effects on the same subject with respect to REQUIERE.
130. As in the case of the latter, his fraudulent involvement as importer of the motor vehicles referred to in Annex I and identified under the order numbers 1, 2, 3, 4, 5, 7, 8, 9, 23, 24, 44, 45, 46, 47, 48, 49 and 51 has been proven with the necessary certainty. Notwithstanding the foregoing, the considerations set forth when dealing with REQUIERE's conduct are valid in his regard, given the inseparability of the actions of both with respect to all the facts referred to therein, in either of their two versions of the crime of smuggling: abuse of the special regime or under-invoicing or both. In a special way in his case, the certain knowledge of the import regime under which the respective motor vehicles were introduced is also taken into account.
131. The accused QUADRINI must then answer as the author (arts. 881 of the CP and 45 of the CP) of the crime of simple smuggling (art. 864 inc. B of the CA) aggravated by the intervention of more than three persons and by the use of false customs documentation (art. 865 incs. a and f of the CA), in real competition - 53 facts, namely: import clearance orders nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 18, 21, 22,23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, according to the detail given when dealing with the legal framework of REQUIERE's conduct, to which it refers). The qualifying circumstance of three or more persons is given with respect to the wilful intervention of REQUIERE, GACHE, ARANGUREN, OCAMPO, AMENDOLARA, RIVEIRO RIVAS, GONZALEZ and SCHOJET to whom, as will be seen later, the specific qualities of authorship and participation will be attributed. The aggravating circumstance of art. 865 inc. f of the CA is applicable based on the forged signatures in the respective matrices of the import dispatches (conf. also the cited doctrine of the Zankel ruling).
132. Regarding the charge made against this defendant for the crime of tax evasion, reference is made to what has already been considered in his report regarding the same charge against the defendant REQUIRES.
Alexander Mariano Gache
133. This defendant, together with the co-defendant ARANGUREN, owned a car sales and consignment agency (see the social contract on page 2796 incorporated by reading). GACHE was the first to establish contact with QUADRINI and to propose to import cars at a better and cheaper price than the market price. According to his statements, the agreement reached with the former consisted in that after QUADRINI had set the price to be imported, the named ARANGUREN had to collect the buyer's data (with a photocopy of the ID included). The price set by QUADRINI was accompanied by a bonus for the advice, although he maintained that both he and his partner ARANGUREN were unaware of the customs procedures that had to be carried out. He also said that many times it was the aforementioned QUADRINI who maintained direct contact with the agency's clients, not knowing whether or not such clients had to sign the matrix of the respective import dispatches. The dealings, moreover, were not only with QUADRINI but on some occasions he also dealt with REQUIERE. Once the vehicles arrived in the country they were taken to the agency by both QUADRINI and his partner ARANGUREN (the present statements by GACHE have been extracted from his statement on pages 3376, incorporated by reading during the trial).
134. Comparing these statements with QUADRINI's testimony (pages 3014), there are details that do not necessarily correspond to each other. Thus, he said that the agreement with the car dealerships (one of them was precisely GACHE and ARANGUREN) consisted of... they would capture the clients, and then order the cars to be imported. They would pass him the data of the third-party buyers, (in) order to carry out the customs procedures necessary for the import, also agreeing on the commission for the import management, they would pass him the money, for each vehicle, and generally, once the car arrived at the port, they would transfer it to the dealership as requested.
135. As can be seen, the acquisition of clients for these purposes (in the words of QUADRINI) had to be carried out by the car agency and although it was apparently one more service offered by the agency, it can be considered as proven without euphemisms that the clients interested in the acquisition of a foreign vehicle had to leave their personal data for the importation in their name that was not announced to them, services that REQUIERE-QUADRINI offered according to what was previously agreed. And it also seems to emerge without effort that both GACHE and ARANGUREN were perfectly aware of the particular conditions under which QUADRINI-REQUIERE's imports were made. Proof of this is that with respect to the sales made through the importation of the vehicles covered by offices nos. In order 9, 29 and 51 (also 53) no commercial invoices were issued (RG DGI nª 3519/91) and that invoices or receipts were issued by importers for their import services. In this sense, what happened with the purchaser Patricio PERALTA RAMOS regarding the commercial documentation required from GACHE in relation to the vehicle purchased (testimony during the debate and ratification of its presentation before the administrative authority) is illustrative. The considerations that correspond to the joint activity that he developed with his partner ARANGUREN and that will be explained in the paragraph relative to the responsibility of the latter are also valid for this accused.
136. The named GACHE will then have to answer for the crime of simple smuggling (art. 864 inc. B of the CA) aggravated by the intervention of three persons (art. 865 inc. A i. – REQUIERE, QUADRINI, ARANGUREN and GACHE himself) with respect to the facts resulting from the importation of the motor vehicles covered by orders numbers 9, 29 and 51, as primary participant (art. 886 of the CA) and in real competition (art. 55 of the CP).
Fernando Matias Aranguren
137. This defendant also shares many of the reasons given in the previous point regarding his partner in the GA Automotores agency, the aforementioned GACHE. In his statement during the debate stage, he virtually confirmed GACHE's statements in the same sense regarding the knowledge existing between the latter and QUADRINI's father, the offer made to them to supply imported cars, the procedure to follow with interested clients and the removal of cars he carried out several times at the local port. He strongly emphasized his lack of knowledge of the customs procedures used by REQUIERE-QUADRINI for the importation of cars.
138. As in the case of GACHE, the statements of this defendant regarding this last ignorance, assessed in the light of sound criticism, are not credible. In fact, if one takes into account that the main activity of the agency was advice on the purchase and sale of used cars, exceptionally new cars (page 2992), it must necessarily be agreed that the new activity should have been preceded by a minimum feasibility study where the scope of the services offered by QUADRINI and the possible benefits were specified. Furthermore, since GACHE and ARANGUREN accessed this new sales opportunity through a person they were friends with or knew closely (QUADRINI and his father), it is unlikely that the former did not expressly warn them what this offer to import cars at a better and cheaper price than the local one consisted of (from GACHE's statements, which were even ratified by the witness DOMENECH, one should also remember REQUIERE's words regarding attracting customers). Furthermore, it is also worth considering the alleged advice provided by the aforementioned GACHE and ARANGUREN to JACOB and the aforementioned DOMENECH regarding the removal of imported cars from a bonded warehouse, or also the advice given to JACOB on the advisability of importing cars in the name of his company. If we add to this that in no case was a commercial invoice issued to the purchasers for the sale of the vehicles (RG DGI No. 3419/91 in force at the time) and that invoices were issued by the importers for their services, it can be concluded that there is complete knowledge of the specific import conditions set by QUADRINI-REQUIERE. Note, in the above sense, the receipt issued by REQUIERE to Patricio PERALTA RAMOS for import services for an operation arranged through the sales management of Fernando ARANGUREN.
139. The named ARANGUREN must then answer for the crime of simple smuggling (art. 864 inc. B of the CA) aggravated by the intervention of three persons (art. 865 inc. A. – REQUIERE, QUADRINI, GACHE and ARANGUREN himself) with respect to the facts resulting from the importation of the motor vehicles covered by orders nos. 9, 29 and 51, as primary participant (art. 886 of the CA) in real bankruptcy (art. 55 of the CP).
Luis Rivero Rivas
140. As in the case of AG Automotores, through personal knowledge (in the case of the accused GONZALEZ), the aforementioned REQUIERE and QUADRINI also interested the used car agency Trade Cars, made up of RIVEIRO RIVAS and Néstor GONZALEZ, in the offer to import vehicles. Although the procedure referred to by GACHE and ARANGUREN was basically repeated in terms of the way in which the operations were carried out (issuing the client's personal data for later delivery to the importers, agreed prices, delivery of the cars, etc.), this accused indicated his knowledge of the new customs regulations for importing cars, although he noted that they had not taken precautions (GONZALEZ and he) regarding the legitimacy of their entry into the market.
141. Once again, the assessment of these statements in the light of sound criticism makes them not credible. As in the case of GACHE-ARANGUREN, this was also an agency that sold used cars, that is, in other words, it was not involved in the trade of imported cars. If this were the case, and despite the knowledge that GONZALEZ could have had with REQUIERE, it was a commercial matter with a profit motive. Consequently, it is not credible that they had not at least advised themselves on the application of the customs regimes that RIVEIRO RIVAS expressly said he knew, especially when the accused REQUIERE clearly set out in his statement on pages 3008 the clear terms of the agreement in this regard established with the agencies of RIVEIRO RIVAS and GONZALEZ and in this regard advertisements were published (testimonies of POLCI, BERMUDEZ and KOSCIUZCYK). Please note, corroborating this, that in the deposit receipt provided by the purchaser Horacio Manuel de MAGALHAES, issued by Trade Cas, reference is made at all times to the purchase of a vehicle.142. On this basis, it is plausible that the commercial invoices required to be delivered (RG DGI No. 3419/91; see the receipt dated 6/10)3 delivered to MAGALHAES) were not issued to the clients or that the transactions were documented by provisional receipts or by invoices issued by a Uruguayan firm (Investra SA) or Sodexa in the name of the client when the latter never had any dealings with the same (attestations during the CUCURULLO, TORTOSA, PERALTA RAMOS, DAGRADI, AMARANTE, BERMUDEZ debate). Thus, in the case of the witness DAGRADI, the existence of two invoices is observed, one issued by the firm Sodexa in her name (with the number 193-65-4339) and another, from the same company and with the same date, issued in the name of QUADRINI. In the case of the witness AMARANTE, her testimony of having dealt with both QUADRINI and the Trade Cars agency in order to acquire her Peugeot car does not merit objections in relation to that dealing, beyond other particular issues that do not call into question her credibility in that regard. Finally, the testimony of Carlos BONANO (page 2637 incorporated by reading) was clear when he indicated that he had only been issued a receipt for the import services of REQUIERE by the Trade Cars agency upon receiving the summons from the DGI to testify; said receipt is dated February 1994, having been printed in that same month.
143. Even at the risk of repeating the obvious, it is necessary to point out once again that the purchasers of vehicles imported through Trades Cars were NOT informed in a concrete or suggested manner of the import regime for end users established by decree PE n 2677/91 and related decrees, according to the consistent testimony of the persons who testified in the process (e.g. attestations of KOSCIUZCKY, DAGRADI, CUCURULLO, AMARANTE, etc.)
144. Furthermore, the factual structure of the request for referral to trial (page 4212) had not been altered in any way by the accusers' requests at the trial stage, since said platform had naturally been respected both in the imputation of the facts (import dispatches order numbers 18, 24, 28, 46, 47, 50, 52, 53, 54, 55 and 56) and the circumstances relating to the commission of the same.
145. The named RIVEIRO RIVAS shall then be held responsible for the crime of simple smuggling (art. 864 inc. B of the CA) aggravated by the intervention of three persons (art. 865 inc. A. – REQUIERE, QUADRINI, GONZALEZ and RIVEIRO RIVAS himself) regarding the facts resulting from the importation of the motor vehicles covered by the offices referred to in the previous paragraph, as a primary participant (art. 886 of the CA) and in real competition (art. 55 of the CP)-
Nestor Gonzalez
146. His statements in the debate were virtually identical to those of his partner in the Trade Cars agency. He did maintain that both he and RIVEIRO RIVAS knew that their clients were going to be the importers of the cars that REQUIERE or QUADRINI would bring, although he said he did not remember whether such clients were informed of this circumstance. Such an assertion is not credible, without prejudice to the contradiction that it feeds on. If, as has been proven by the testimonies of the persons cited in the previous paragraph, the only thing that they wanted was to buy a car and both GONZALEZ and RIVEIRO RIVAS advised their clients, it is incredible that they had not told them that they were going to be importers. Furthermore, it does not seem certain that the purchasers were the eventual importers because, unless they were registered as such, they necessarily had to hire the services of a third party. And, of course, all these issues must be assessed bearing in mind that RIVEIRO RIVAS and by extension his partner GONZALEZ, knew about the customs regulations then in force for the importation of automobiles for marketing or as end users.
147. Where appropriate, and in order to avoid unnecessary repetition, reference is made to the considerations set forth in the previous paragraphs when dealing with the responsibility of the accused RIVEIRO RIVAS, since his conduct appears inseparable from the cases brought to trial.
148. The named GONZALEZ will then be responsible for the crime of simple smuggling (art. 864 inc. B of the CA) aggravated by the intervention of three persons (art. 865 inc. Ad. – REQUIERE, QUADRINI, RIVEIRO RIVAS and GONZALEZ himself) with respect to the facts resulting from the importation of the motor vehicles covered by orders numbers 18, 24, 28, 46, 47, 50, 52, 53, 54, 55 and 56, as primary participant (art. 886 of the CA) and in real competition (art. 55 of the CP).
Pedro David SHOJET
149. This defendant appears to be linked to the car dealership owned by GACHE and ARANGUREN based on his acquaintance with the former. Strictly speaking, his sales modality was a kind of street resale. His activity in the case is limited to the sale of a car made to Alicia GISER (import office identified with order number 53) with certain knowledge of the customs operations in force, without prejudice to his involvement in other car imports (that of the witness TOMISINI for example). The respective import office shows that GISER's mother, Rosa FRAIMOVICH, is the owner of a Fiat Uno, including an Investra invoice number 156 in her name. In this regard, the sales contract that he signed with the aforementioned party, which omitted any reference to the purchase being made, is relevant to his conduct, although it did detail an import in the name of the interested party that she was never aware of, according to her own testimony. Furthermore, his dealings with QUADRINI in relation to imports are proven with respect to the procedure used on the occasion of the import to the aforementioned GISER (he gave her personal data in a sealed envelope to QUADRINI, who was also the one who set the prices of the vehicles to be sold - page 3449 - or by TOMASINI's statements regarding the former's knowledge through the aforementioned SCHOJET). The aforementioned FRAIMOVICZ did not recognise his signature on the matrix of the respective import office.
150. As in the case of GACHE and ARANGUREN, RIVEIRO RIVAS and GONZALEZ, their criminally relevant conduct lies in the recruitment of the client GISER for the improper importation in his name of the vehicle that she acquired and the repetition of the required procedure regarding her personal data and then its transfer to REQUIERE or QUADRINI for the importation of the case.
151. The named SCHOJET shall then be held responsible for the crime of simple smuggling (art. 864 inc.B of the CA) aggravated by the intervention of three persons (art. 865 inc. A d. – REQUIERE, who acted as importer in the case, QUADRINI, the commissioner OCAMPO and SCHOJET himself) regarding the fact resulting from the importation of the motor vehicle covered by dispatch number. Of order 53), as primary participant (art. 886 of the CA)-
Ruben Alberto Amendolara
152. The procedural object relative to this defendant should be limited to the facts relating to import dispatches order numbers 2 and 10, taking into account what was decided regarding the rest of the facts for which there was a request for referral to trial when dealing with the joint proceedings prior to the debate.
153. At the time of the events, the accused AMENDOLARA worked as a customs broker. In this regard, he worked at that time for the broker FRANCO, before having worked as an employee of another broker, COTRONEO. His relationship with QUADRINI dated from the latter period, given that COTRONEO was his broker. His main task consisted of the complete drafting of import dispatches for motor vehicles based on the documentation that REQUIERE or QUADRINI provided him, for subsequent signature by the brokers. The aforementioned documentation consisted of the vehicle purchase invoice, the bill of lading and the freight certificate, as well as the data of the third-party purchasers. The deal with the aforementioned REQUIERE and QUADRINI was $50 for each dispatch or for each car, of which $30 was set aside for the broker. He also maintained that he also recommended the broker ACCATI and the commissioner OCAMPO, given the excess of work that FRANCO or himself had for the dispatches that REQUIERE and QUADRINI (The present statements have been taken from the declaration of this defendant held on pages 3444 incorporated by reading).
154. Although they were authorised importers, the aforementioned REQUIERE and QUADRINI had to hire customs agents and other assistants for the correct processing of customs documentation. In this sense, AMENDOLARA's fraudulent participation in dispatches numbered 2 and 10 (dispatches documented by FRANCO) is recorded. As a specialist in the field (he prepared the dispatches entirely on the basis of the necessary documentation provided by the two defendants mentioned) he could not be unaware of the obvious illegality of the data that were included there when he was expressly aware of the import regulations to be applied (remember that the minimum documentation he had for such purposes were the invoices for the purchase of the vehicles abroad (issued in some cases by Catalana de Recambios or Investra as he referred to in his statement), the bill of lading, freight certificate and data of the purchasers. The REQUIERE himself was emphatic when on page 3008 he maintained that…in relation to the customs procedures, these were the responsibility of the brokers' commissioners (ACCATI and FRANCO), taking into account that on some occasions they were the ones in charge of having the matrices of the import dispatches signed… (In relation to OCAMPO and AMENDOLARA), No less It was clear that QUADRINI said on pages 3016 that... he had little contact with the import agent (COTRONEO), since the procedures were carried out with the commission agent Amendolara...). Finally, COTRONEO himself, in his statement during the debate, while saying that AMENDOLARA had been his employee in a dependent relationship, was also clear when he maintained that it was precisely he (AMENDOLARA) who carried out all the procedures inherent to import clearances.
155. It seems appropriate to recall once again that DGI resolutions No. 3431 and 3543 established the requirements and other conditions for making effective the value added tax (VAT) and income tax collection regime respectively. It was expressly established (Art. 6) that importers must record, as a sworn statement for all applicable legal purposes, the destination to be assigned to the imported good. For this reason, the legend signed by both REQUIERE and QUADRINI in the respective import dispatches after the false signatures of the purchasers to the effect that the merchandise …is a good for use owned by the third parties, previously signed, who are physical persons, could not go unnoticed by experts in the field and rather demonstrates their unequivocal participation in the illegal maneuver.
156. The named AMENDOLARA should then be held responsible for the crime of simple smuggling (art. 864 inc. B of the CA) aggravated by the intervention of three persons (art. 865 inc. A d. – REQUIERE, QUADRINI, and AMENDOLARA himself) and for having falsified the documentation necessary for the processing of the imports of the motor vehicles covered by dispatches of order numbers 2 and 10, as co-author (art. 45 of the CP), in real competition (art. 55 of the CP). The quality of co-author arises from the necessary functional contribution to the realization of the illegal maneuver, in a sort of inseparable distribution of tasks in the customs operation of the case, understood as complex acts that encompass everything from contacts and purchases of the vehicles abroad, as well as their transfers until their documented entry into the customs service, the latter aspect in which the aforementioned defendant intervened.
Carlos Roberto OCAMPO
157. The actions of this defendant have many points in common with the conduct already analyzed by the co-defendant AMENDOLARA. Thus, his status as customs broker, his dealings in this regard with REQUIERE and QUADRINI, the documentation that they provided for the import procedures (commercial invoices, bill of lading, freight certificate and data of third-party purchasers), his ignorance regarding the latter, the agreement reached for fees, his ignorance of the origin of the respective vehicles, the payments outside of accounting, the procedures in the port area for the release of the vehicles to the market (declaration on page 3378 incorporated by reading).
158. His statements to the effect that… he understood that this was just another import operation, like any other common operation, in which the importer delivers the documentation to the clearing agent and/or employee, consisting of invoices, bills of lading, freight certificates, payments to shipping companies and debt clearance… do not seem credible in the light of sound criticism. In this regard, his qualified knowledge of the customs operations in question should be noted, where the individualization of the respective data to be included in the pertinent documentation implies an assertion of certainty. Thus, it is incredible that, being aware of the special regime for importing motor vehicles under which the motor vehicles in this case were imported, he would consent to the mistaken identification of importers for marketing or as end users or even to the processing of the dispatches without the apparent signatures of the latter. To this panorama it must be added that he joined as a broker for imports for REQUIERE and QUADRINI after AMENDOLARA did so and on his recommendation, which in itself proves a certain knowledge of the particular operation that was being carried out.
159. Based on the above, it seems that the documentation found at the time of the search of his work address is correct. In particular, the handwritten papers that REQUIERE or QUADRINI brought to complete the dispatches where the personal data of the purchasers of the vehicles that did NOT import them using the services of the former (on behalf and order of third parties) or for the requests for transfers of ownership of the vehicles brought to them by the two defendants cited (unequivocal commercialization destination) or for the blank documentation signed by the dispatcher ACCATI, which proves the real work of these customs commissioners. Finally, it should be noted that the performance of OCAMPO was not limited, as for example the dispatcher COTRONEO was, to a few dispatches, but that his intervention was reflected in more than forty (40) import dispatches, too many in fact not to notice the illegality of the maneuver in which he participated.
160. The named OCAMPO should then be held responsible for the crime of simple smuggling (art. 864 inc. B of the CA) aggravated by the intervention of three persons (art. 865 inc. A d. – REQUIERE, QUADRINI, and OCAMPO himself) and for having falsified the documentation necessary for the processing of the imports of the motor vehicles covered by the order numbers 11, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60 and 61, as co-author (art. 45 of the Criminal Code), in real competition (art. 55 of the Criminal Code). As previously stated, the status of co-author of this accused arises from the necessary functional contribution to the execution of the illegal maneuver, in a sort of inseparable distribution of tasks in the customs operation of the case, understood as complex acts that include everything from contacts and purchases of the vehicles abroad to their transfers until their documented entry before the customs service, this last aspect in which the aforementioned accused intervened.
Rodolfo DEL CASTILLO:
Drs. Luis Gustavo LOSADA and Claudio J. GUTIERREZ from CARCOVA said:
161. That in the absence of an accusation in the final argument by the Public Prosecutor's Office and the plaintiff regarding Rodolfo DEL CASTILLO in relation to the crime of smuggling charged against him in relation to the import shipments whose order numbers are 42 and 43, the doctrine established by the Supreme Court of Justice of the Nation in Rulings 317:2043, 318:1234, 1400 and 2098 among others, in which it was expressed that the conviction sentence without there being an accusation, violated the constitutional guarantees of defense in court and due process, is applicable to the case. Furthermore, the arguments of the Attorney General of the trial and of the plaintiff were duly founded, in accordance with the evidence accredited in the file, so that they can be considered valid procedural acts.
162. Consequently, leaving aside the personal opinion of the undersigned, it is understood that the criterion must be followed, at the risk of the unnecessary creation of issues whose outcome is foreseeable and which would only entail an expenditure of activity, incompatible with the adequate service that the administration of justice must provide.
163. In this last aspect, the SCJN itself has pointed out that the pure and simple disregard of its rulings by the lower courts means disturbing the institutional judicial scheme (Rulings: 212:253). As the High Court clarified, it is not a question of ignoring the correct development of the freedom of judgment proper to judges, since the Court's rulings are susceptible to being disputed like any human judgment, but the discrepancy must be duly justified (Rulings 212:253 already cited and 212:59). The simple disregard of the Court's rulings, whose loyal observance is indispensable for public tranquility, social peace and the stability of institutions, means an affront to the institutional order (Rulings 212:160).
164. In this regard, and by applying the doctrines established by the SCJN in the rulings already cited, it is appropriate to ACQUIT Rodolfo DEL CASTILLO OF GUILT AND CHARGE of the act for which there was a request for referral to trial. Without costs.
THIS IS HOW WE VOTE.
Dr. Cesar Osiris LEMOS said:
165. Given the lack of an accusation at the time of the arguments of the plaintiff and the Public Prosecutor, I understand that the court is obliged to issue an acquittal in the present case. This is based on what was expressed in my vote in the MAROTTA case reg. 165-S/97, to whose arguments I refer for the sake of brevity.
166. Therefore, I cast my vote in the sense that Rodolfo DEL CASTILLO be absolved of guilt and charge for the act for which he was brought before this trial, without costs.
SUCH IS MY VOTE.
Noah FRANCO:
167. Noé FRANCO was charged with the crime of smuggling in relation to the facts involved with the import dispatches whose order numbers are: 2 and 10. The accusing parties framed his conduct within the provisions of art. 869 of the CA as author.
168. Noé FRANCO stated that he signed the import dispatches with order numbers 2 and 10, as presented to him by the agent AMENDOLARA. According to his own statements, the accused was aware that the merchandise detailed in the respective dispatches were vehicles that would be imported for third parties, who appeared as the purchasers of the same. The documentation that was available for the purposes of preparing the respective import dispatches was that which REQUIERE and QUADRINI sent to the agent AMENDOLARA. Thus, in dispatch no. 2 there is a commercial invoice from Peugeot Sodexa, which shows the sale of a Peugeot 405 to Ricardo Cohen, who appears as the purchaser of the vehicle. In dispatch no. 10. There are copies of the commercial invoices issued by Investra in the name of Quadrini, Alvarez Dominguez and Ricardo Sergio Schestopalek, who appear as purchasers of the imported vehicles. Going to extremes in his duty of care as a clearing agent, Noe FRANCO could not in any way have assumed that the documents he presented were falsified in any way. It should also be noted that Customs intervened in clearance no. 2, making a value adjustment as indicated therein, without observing any falsity.
169. For all these reasons, since the provisions of Article 869 of the CA have not been proven, Noe FRANCO shall be absolved of any liability and without costs.
Miguel Antonio COTRONEO:
170. The accused was charged with the crime of smuggling in relation to the import dispatches with the order numbers: 1, 3, 4, 5, 6, 7, 8, and 9. The complaint accused COTRONEO of committing the crime of smuggling in the terms of art. 864 inc. b of the CA. The Prosecutor, for his part, placed the accused's conduct within the provisions of art. 869 of the CA.
171. According to the statements of QUADRINI and COTRONEO, both defendants learned about the incident through third parties who contacted them. They told COTRONEO that QUADRINI, who had taken a course in foreign trade at the Bank of Boston, needed a customs agent, according to what they told him. It was COTRONEO who registered QUADRINI as an importer. From the evidence gathered in the debate, there is no element that allows us to suppose that COTRONEO had represented the underhanded maneuver implemented by the co-defendants REQUIERE and QUADRINI. He met REQUIERE after beginning his dealings with QUADRINI. He stopped acting as QUADRINI's agent when the latter tried to advance the customs procedures that were his responsibility. It is noted that, at the time COTRONEO began his activity as a customs broker for QUADRINI, AMENDOLARA was an employee of COTRONEO, who behind COTRONEO's back then began his activity directly for QUADRINI by contacting another customs broker, Noe FRANCO. COTRONEO carried out the import clearances having in sight the documentation that the importer QUADRINI himself brought him and who was, according to the aforementioned, the person who had the respective matrices of the purchasers of the vehicles signed. QUADRINI intervened in all these import clearances as an importer and did not REQUIRE it. It is also noted that COTRONEO himself contacted his accountant Osvaldo Julio VIDAL with QUADRINI in order for the latter to import a car for him. According to VIDAL's own statements, the signature inserted in the import dispatch referred to was his, he also said that he contacted QUADRINI because he needed an importer to buy the car from him.
172. Taking into account the elements brought to the debate and incorporated into the case, the extremes provided for in arts. 864 inc. b and 869 of the CA have not been able to be proven, since neither the fraud required by the first of the norms nor the violation of due diligence of the other norm can be put in his head, and Miguel Antonio COTRONEO must be acquitted of the crime of smuggling linked to the import dispatches whose order numbers are: 1, 3, 4, 5, 6, 7, 8, and 9. Without costs.
Alejandro Mariano GACHE and Fernando Matías ARANGUREN:
173. Both defendants were charged with the crime of smuggling as necessary participants in the incident involving the import clearance, the order number of which is 53. As was proven in the debate, the defendant SCHOJET was involved in said incident. Thus, it emerges from the respective clearance that among the purchasers of the vehicle are: Rosa Fraimovicz, whose daughter GISER bought the car from SCHOJET; Gladys Kosciuczyk who bought her car from Trade Cars; Carlos Roberto OCAMPO, a customs broker, accused in these proceedings, without the testimony of the rest of the purchasers of the cars described therein (Cooperativa de Vivienda y Crédito y Consumo Cavemar LTDA and Quadrini, Daniel Guillermo).
174. The fact that SCHOJET worked at the car agency of the aforementioned parties does not prove the participation of GACHE and ARANGUREN in the sale made by the latter, taking into account also GISER's own statements.
175. In this regard, the participation attributed to the accused GACHE and ARANGUREN could not be proven during the trial, which is why the accused must be absolved of any guilt and charges in relation to the fact linked to import clearance no. 53, without costs.
Carlos Roberto OCAMPO, Jorge Damian REQUIERE and Victor Adrian QUADRINI:
176. The named individuals were charged with the crime of smuggling in relation to the events related to the import shipments whose order numbers are: 12, 13, 14, 15, 16, 17, 19 and 20.
177. In relation to these dispatches, the crime of smuggling could not be proven in relation to the under-invoicing of the imported goods. Nor were the testimonies of the third-party purchasers available, so it could not be determined whether or not the signatures inserted in these dispatches were false.
178. For all of the above, since the participation of Carlos Roberto OCAMPO, Jorge Damian REQUIERE and Victor Adrian QUADRINI has not been proven in relation to the facts related to the import dispatches whose order numbers are: 12, 13, 14, 15, 16, 17, 19 and 20, the named parties shall be absolved of any liability and responsibility, without costs.
IV. Graduation of penalties.
Drs. Luis Gustavo LOSADA and Claudio Javier GUTIERREZ from CARCOVA said:
1) Regarding Jorge Damian REQUIRES:
179. To this end, the following are taken into account: the personality of the accused, assessed in the light of the report on pages 3815/3820, the favourable impression received during the debate, the nature of the action committed, the extent of the damage caused, his age when the acts were committed, his education, customs and conduct, the lack of judicial and police records (pages 3045, 6072), the plurality of the acts, the profit motive that motivated him, the expansion noted and other assessment guidelines provided for in arts. 26 and 41 of the CP.
180. On such bases, REQUIERE shall be sentenced to FIVE (5) YEARS of effective imprisonment. In addition, the disqualifications provided for in art. 876 subsections d, f, h and e, also of effective application (art. 26 of the CP), shall be imposed, setting the quantum of TWO (2) YEARS for the latter case. The provisions of art. 12 of the CP and the costs of the trial shall also be applicable.
2) Regarding Victor Adrian QUADRINI:
181. To this end, the following are taken into account: the accused's personality, assessed in the light of the report on pages 3734/3738 back, the favourable impression received during the debate, the nature of the action committed, the extent of the damage caused, his age when the acts were committed, his education, customs and conduct, the lack of judicial and police records (pages 3336, 6078), the plurality of the acts, the profit motive that motivated him, the expansion noted and other assessment guidelines provided for in arts. 26 and 41 of the CP.
182. On such bases, QUADRINI shall be sentenced to FIVE (5) YEARS of effective imprisonment. In addition, the disqualifications provided for in art. 876 subsections d, f, h and e, also of effective application (art. 26 of the CP), shall be imposed, setting the quantum of TWO (2) YEARS for the latter case. The provisions of art. 12 of the CP and the costs of the trial shall also be applicable.
3) Regarding Fernando Matias ARANGUREN:
183. To this end, the following are taken into account: the personality of the accused, assessed in the light of the report on pages 3684/3688 back, the impression received during the debate, the nature of the action committed, the extent of the damage caused, his age, education, customs and conduct, the lack of judicial and police records (pages 3041, 3494, 6062/6064), the plurality of facts and other assessment guidelines provided for in arts. 26 and 41 of the CP.
184. On such bases, ARANGUREN shall be sentenced to TWO (2) YEARS AND SIX (6) MONTHS OF PRISON with suspended execution. In addition, the disqualifications provided for in art. 876 subsections d, f, h and ââof effective application (art. 26 of the CP) shall be imposed, setting the amount of ONE (1) YEAR AND THREE (3) MONTHS for the latter case and the costs of the trial.
4) Regarding Alejandro GACHE:
185. To this end, the following are taken into account: the personality of the accused, assessed in the light of the report on pages 3774 and back, the impression received during the debate, the nature of the action committed, the extent of the damage caused, his age, education, customs and conduct, the lack of judicial and police records (pages 3482, 6059/6061), the plurality of facts and other assessment guidelines provided for in arts. 26 and 41 of the Criminal Code.
186. On such bases, GACHE shall be sentenced to TWO (2) YEARS and SIX (6) MONTHS OF PRISON with suspended execution. In addition, the disqualifications provided for in art. 876, subsections d, f, h and e of effective application (art. 26 of the CP) shall be imposed, setting the amount of ONE (1) YEAR AND THREE (3) MONTHS for the latter and the costs of the trial.
5) Regarding Nestor Juan GONZALEZ:
187. To this end, the following are taken into account: the personality of the accused, assessed in the light of the report on pages 3702/06 back, the impression received during the debate, the nature of the action committed, the extent of the damage caused, his age, education, customs and conduct, the lack of judicial and police records (pages 3496, 6069/6071), the plurality of facts and other assessment guidelines provided for in arts. 26 and 41 of the CP.
188. On such bases, GONZALEZ shall be sentenced to THREE (3) YEARS OF PRISON with suspended sentence. In addition, the disqualifications provided for in art. 876 subsections d, f, h and e of effective application (art. 26 of the CP) shall be imposed, setting the amount of ONE (1) YEAR AND SIX (6) MONTHS for the latter case and the costs of the trial.
6) Regarding Luis RIVEIRO RIVAS:
189. To this end, the following are taken into account: the personality of the accused, the impression received during the debate, the nature of the action committed, the extent of the damage caused, his age, education, customs and conduct, the lack of previous records (pages 3495, 6066/68), the plurality of facts and other assessment guidelines provided for in arts. 26 and 41 of the CP.
190. On such bases, RIVEIRO RIVAS shall be sentenced to THREE (3) YEARS of suspended imprisonment. In addition, the disqualifications provided for in art. 876 subsections d, f, h and e of effective application (art. 26 of the CP) shall be imposed, setting the amount of ONE (1) YEAR AND SIX (6) MONTHS for the latter and the costs of the trial.
7) Regarding Pedro David SCHOJET:
191. To this end, the following are taken into account: the personality of the accused, assessed in the light of the report on pages 3641/3645, the impression received during the debate, the nature of the action committed, the extent of the damage caused, his age, education, customs and conduct, the lack of judicial and police records (pages 3477, 6075/77) and other assessment guidelines provided for in arts. 26 and 41 of the Criminal Code.
192. On such bases, SCHOJET shall be sentenced to TWO (2) YEARS of suspended imprisonment. In addition, the disqualifications provided for in art. 876 subsections d, f, h and e, of effective application (art. 26 of the CP) shall be imposed, setting the amount of SIX (6) MONTHS for the latter case and the costs of the trial.
8) Regarding Ruben Alberto AMENDOLARA:
193. To this end, the following are taken into account: the personality of the accused, assessed in the light of the report on pages 3757/3761 back, the impression received during the debate, the nature of the action committed, the extent of the damage caused, his age, education, customs and conduct, the lack of judicial and police records (pages 3481, 6081), the plurality of facts and other assessment guidelines provided for in arts. 26 and 41 of the CP.
194. On such bases, a TWO (2) YEARS AND THREE (3) MONTHS OF PRISON with suspended execution shall be imposed. In addition, the disqualifications provided for in art. 876 subsections d, f, h and e of effective application (art. 26 of the CP) shall be imposed, setting the amount of ONE (1) YEAR for the latter case and the costs of the trial.
9) Carlos Roberto OCAMPO:
195. To this end, the following are taken into account: the personality of the accused, assessed in the light of the report on pages 3763/3766 back, the impression received during the debate, the nature of the action committed, the extent of the damage caused, his age, education, customs and conduct, the lack of judicial and police records (pages 3479, 6101), the plurality of facts and other assessment guidelines provided for in arts. 26 and 41 of the CP.
196. On such bases, OCAMPO shall be sentenced to FOUR (4) YEARS of effective imprisonment. In addition, the disqualifications provided for in art. 876 subsections d, f, h and c shall be imposed. and, also of effective application (art. 26 of the CP), setting the quantum of ONE (1) YEAR AND EIGHT (8) MONTHS for the latter case. The provisions of art. 12 of the CP and the costs of the trial will also apply.
Dr. Cesar Osiris LEMOS said:
LEGAL FRAMEWORK OF CONDUCTS
197. Having already resolved the situations regarding the crime and the criminal type assigned to the conduct of the accused, it is appropriate to delve into the characteristics of these conducts in their respective categories within the criminal type, but in this case distinguishing between the type of concurrence that may exist; and for this purpose, ask ourselves whether we are faced with a single act or a plurality of acts committed by the different accused.
198. Thus, it is clear that all those accused whose actions have been caught in the type of smuggling, have carried it out in such a way that it has been proven that their intention was to harm the protected legal asset (the control of the customs service) in a repetitive, similar and continuous manner, within what can be called a homogeneous and unique plan, encompassing the crime from beginning to end, beyond the number of shipments processed and vehicles entered.
199. It can be understood that when the legal right protected by the respective criminal type is totally violated by a single act, continuity is unthinkable; but when, as in this case, the legal injury can progress, deepen and become more serious, then fragmented or staggered commission is possible, and continuity becomes legally possible.
200. Thus, we understand that the crime is unitary, as in this case, although the facts were several (processing of several offices; sale to different third parties or sale of several vehicles), because the latter tend to the same end and the same result (illegal marketing of the vehicles in the market).
201. This arises as an imposition of real necessity over the literal tenor of the law, that is, by the recognition of a unitary reality of human action that must adhere more to being than to appearance and more to the spiritual than to the material, we are definitely faced with an ontological consideration.
202. Going deeper into the development of the subject, we can say that the continued offence is inspired by: a) the imposition of the need for the primacy of reality over the literal tenor of the law (ontological argument); b) a humanitarian purpose, to prevent the literal tenor from leading to false appraisals of reality due to the weight of mere physical appearances; c) preventing the judicial process from deviating and becoming slowed down by the search, investigation and analysis of space-time fractions of human conduct, which are unnecessary when faced with the verification of the whole; d) making formal justice agree with material justice.
203. The above is especially applicable to the case at hand, since by applying the continuing offence it is not necessary to enter into convoluted justifications as to whether each fact was represented by each office, by each vehicle or by each buyer.
204. The continuing offence must not be seen as an ad hoc unification of plural facts, but as a unity of meaning that the law must recognise.
205. Collective fraud, such as the one we are dealing with, is one of the greatest reasons for judicial practice to recognize continuing crime and mass crime as legal constructions that apply the law to the needs of social life (A Fernandez Albor, Studies on Economic Criminality, Edit. Bosch, p.48).
206. In each fraction of the continuing offence, the occurrence of each and every one of the characteristics of the total offence can be seen. It is undoubtedly this structural conformation which has induced the false representation of a plurality of concurrent offences, united by the law in a fictitious unit. It is not a question of several actions, but of the conjunction of several equally typical, unlawful and culpable actions, only that they are carried out under such conditions that they are objectively seen as a continuation or continuation of the others and all as the realisation of a joint plan or the product of a relapse at the same opportunity, that is, a unity of design or project, without it being possible for this reason to speak of concurrence.
207. The time that must elapse between one act and another for them to cease to form a structural and legal unit and give rise to a concurrence cannot be resolved with the concept of chronometric time, since any break in it would be arbitrary. In this regard we must agree that although the passage of a very long time lapse between act and act is an indication against the unity of assessment, this is not decisive evidence against it. It is best to stick to the concept of existential time, which can be translated as unity of purpose or at least of motivational situation. If this is the case, we will be dealing with a unitary crime; otherwise, the concurrence of crimes could be considered (El delito continuado, J. Fernandez Carrasquilla, p. 48). Etcheberry determines the existence of this type of crime, asking himself whether hypothetically the totality of what happened could have been achieved with a single act (or with several, but without a solution of continuity, in a single context of action), in the ideally most favorable circumstances for the act. If this was possible, it means that the fragmentation was due only to the force of the unfavorable circumstances, or to the desire to better ensure the result or impunity (Criminal Law, General Part, A. Etcheberry, p.110/1).
LEGALITY
208. The continuing crime is not a legal fiction, but a natural reality of human action, which, despite the absence of a specific legal regulation, will place us before a unitary crime.
209. It also provides us with a rational interpretation of the types and their scope, in order to avoid falling into often forced consequences such as estimating that 50, 100 or more crimes have been committed when reality indicates unity of purpose. Denying the existence of the continuing crime simply because there is no express provision in the law is excessively positivistic and responds to a jurisprudence that is too exegetical and scarcely constructive (ER Zaffaroni, Tratado derecho penal, vol. IV, p. 544/45).
210. But the argument that sees in the jurisprudence of the continued crime a mockery of the principle of legality of punishments, at least in part, is for me the most important. I believe that the basis of this argument is mistaken, because it assumes that the offender who divides his criminal enterprise has the right to be judged by the rules of the concurrence, and therefore on the basis of the most serious of partialities, losing sight of the fact that each person must answer for the totality of his conduct, as a typical set of volitional actions, and not for the mere sum of isolated acts. Just as the co-author of a crime is responsible for the total work according to the joint plan, and not only for the part of the act personally carried out, each person is responsible, in each stage of his legal-vital conduct, for the totality of the acts of a typical conduct and not for each one of them considered separately and, in the best of cases, only for the most serious of the parts of a totality of conduct. In crimes with a legally quantified result and a penalty dependent on the magnitude of the same, there is no justification for criminal liability based on a competition of quotas, instead of that corresponding to the total result, since this represents what the subject actually did and consults the purposes for which he did it. The purpose, the occasion and the type are the essential factors for determining the typical units of action and therefore for distinguishing the unity and the plurality of crimes (criminal charges). (El delito continuado, J. Fernandez Carrasquilla, p.36/37, Ed. Temis).
211. The crime of continued action does not infringe the same provision several times, but does so only once, although by means of an action made up of several acts. In this action, as pointed out by PE Correa, among others (El crimen continuado, Edit. Abeledo-Perrot, p. 28), fractionation is only one executive modality of the crime, a modality that uses time (temporary interruption) for reasons of convenience or opportunity. Discontinuity is nothing more than a technique of criminal operation. B. Alimena had also already pointed out (Principles of Criminal Law, p. 492 and 494) that in the continued crime the various and successive consummations are nothing more than the various and successive parts of a single consummation, and that the injury is constituted by the totality of the aggression to a right… and not by each one of the things on which the crime materially falls, or by each one of the moments during which the aggression is developed and executed.
212. It is important to emphasize that this legal-natural unity of action does not depend only on the rules of the theory of crime, but is linked to the interpretation of each type or particular criminal figure. It is the type that determines the breaks in the continuity of the imputable vital conduct and only from its interpretation can the possibility be derived that the violation of its norm or provision may occur indistinctly by unity or plurality of acts, especially acts situated in different times or contexts. And to say it with the words of Soler (Argentine Criminal Law, Tipográfica Editora Argentina, p.338/9) the matter depends on the power of absorption of each figure and must therefore be resolved, in each case, in light of the meaning of the corresponding type. Thus, "the problem consists in determining whether the figures corresponding to each hypothesis, whether in an express manner, or by the meaning that the protected legal asset has in them or by the form of protection, have or do not have the meaning and power to encompass this apparent plurality. Zaffaroni (Manual de derecho penal. Parte general, p. 546) also provides another angle of view to the analysis of the subject by saying: There are some types in which the repetition of typical conduct does not imply a real concurrence, but rather a greater clash of the typical conduct against the law, that is, a greater content of injustice in the conduct. This is deduced from the fact that the interpretation of the same in the sense that repetition gives rise to a real concurrence leads to absurd results that collide with the principle of rationality of punishment.
213. Consequently, the legal types that cover this type of conduct are those that protect quantifiable or graduated legal assets and those in which, in the protection of these assets, the amount of damage can be assessed, such is the case of art. 864 inc. b) CA that concerns us. For there to be a continuing offense, according to H. Welzel (German Criminal Law, Santiago de Chile, p. 315), the subsequent particular acts must only produce an extension of the same content of injustice.
214. It is a matter of a mode of criminal progression and not of several injustices that are linked by the unity of culpability, but of several magnitudes of injury or of the progressive injury of the same legal right, which constitute a unitary injustice.
215. In short, everything stated above regarding the continuing offense is strictly applicable to the case at hand, whether it has been developed in general terms or with direct reference to the case.
GRADUATING PENALTIES
216. For all the above, it is considered that the defendants mentioned below have participated in the crime, in a single act, although with different amounts of injustice in each particular case, and therefore the following penalties will be imposed on them.
1) CONDEMN with express imposition of costs Jorge Damian REQUIRES as co-author of the crime of smuggling provided for in arts. 864 inc. b and 865 incs. ayf of the CA, in order to the import dispatches whose order numbers are: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, and 61 to suffer the following penalties (arts. 876 incs. d, e, fyh of the CA, and 45 and 55 of the CP):
a) THREE (3) YEARS AND SIX (6) MONTHS OF PRISON,
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for SEVEN (7) YEARS to serve as a public official or employee,
d) SPECIAL DISQUALIFICATION of ONE (1) YEAR AND SIX (6) MONTHS for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION from serving as a member of the security forces;
f) ABSOLUTE DISQUALIFICATION for the duration of the prison sentence for the exercise of parental authority, the administration of property, the enjoyment of any retirement, pension or withdrawal and the right to dispose of them by acts inter vivos (art. 12 of the CP).
2) CONDEMN with express imposition of costs Víctor Adrian QUADRINI, as co-author of the crime of smuggling provided for in arts. 864 inc. b and 865 incs. ayf of the CA, in order to the import dispatches whose order numbers are: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, and 61 to suffer the following penalties (arts. 876 incs. d, e, fyh of the CA, and 45 and 55 of the CP):
a) THREE (3) YEARS AND SIX (6) MONTHS OF PRISON,
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for SEVEN (7) YEARS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of ONE (1) YEAR AND SIX (6) MONTHS for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION from serving as a member of the security forces;
f) ABSOLUTE DISQUALIFICATION for the duration of the prison sentence for the exercise of parental authority, the administration of property, the enjoyment of any retirement, pension or withdrawal and the right to dispose of them by acts inter vivos (art. 12 of the CP).
3) TO CONDEMN with express imposition of costs Alejandro Mariano GACHE as a necessary participant in the crime provided for in arts. 864 inc. b and 865 incs. a of the CA, in relation to the import dispatches whose order numbers are: 9, 29, and 51, to suffer the following penalties (arts. 886, 876 incs. d, andh of the CA and art. 55 of the CP):
a) TWO (2) YEARS AND THREE (3) MONTHS OF PRISON, suspended;
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for FOUR (4) YEARS and SIX (6) MONTHS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of ONE (1) YEAR for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION to serve as a member of the security forces.
4) CONDEMN with express imposition of costs Fernando Matías ARANGUREN as a necessary participant in the crime provided for in arts. 864 inc. b, 865 incs. a of the CA, in relation to the import dispatches whose order numbers are: 9, 29 and 51 to suffer the following penalties (arts. 886, 876 incs. d, e, f and h of the CA and 55 of the CP):
a) TWO (2) YEARS AND THREE (3) MONTHS OF PRISON, suspended,
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for FOUR (4) YEARS and SIX (6) MONTHS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of ONE (1) YEAR for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION to serve as a member of the security forces.
5) CONDEMN with express imposition of costs Luis RIVEIRO RIVAS, whose personal data appear in this document, as a necessary participant in the crime provided for in arts. 864 inc. b and 865 inc. a of the CA in order to import dispatches whose order numbers are: 18, 24, 28, 46, 47, 50, 52, 53, 54, 55 and 56 to suffer the following penalties (arts. 886 and 876 incs. d, e, f and h of the CA and 55 of the CP):
a) TWO (2) YEARS AND SIX (6) MONTHS OF PRISON, suspended,
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for FIVE (5) YEARS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of ONE (1) YEAR AND THREE (3) MONTHS for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION to serve as a member of the security forces.
6) CONDEMN with express imposition of costs Néstor Juan GONZALEZ, whose personal data appear in this document, as a necessary participant in the crime provided for in arts. 864 inc. b and 865 inc. a of the CA in order to import dispatches whose order numbers are: 18, 24, 28, 46, 47, 50, 52, 53, 54, 55 and 56 to suffer the following penalties (arts. 886, 876 incs. d, e, f and h of the CA and 55 of the CP):
a) TWO (2) YEARS AND SIX (6) MONTHS OF PRISON, suspended,
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for FIVE (5) YEARS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of ONE (1) YEAR AND THREE (3) MONTHS for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION from serving as a member of the security forces;
7) ORDER, with express imposition of costs, Pedro David SCHOJET, whose personal data are included in this document, as a necessary participant in the crime provided for in art. 864 inc. b and 865 inc. a of the CA, in relation to the import clearance whose order number is 53, to suffer the following penalties (arts. 886, 876 incs. d, e, f and h of the CA and 55 of the CP):
a) TWO (2) YEARS OF PRISON, suspended;
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for FOUR (4) YEARS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of SIX (6) MONTHS for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION to serve as a member of the security forces.
8) CONDEMN with express imposition of costs Carlos Roberto OCAMPO, whose personal data are included in this document, as co-author of the crime provided for in art. 864 inc. b, 865 incs. ayf of the CA, in order to import dispatches whose order numbers are: 11, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, and 61 to suffer the following penalties (arts. 876 incs. d, e, f and h of the CA, 45 and 55 of the CP):
a) THREE (3) YEARS OF PRISON, suspended,
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for SIX (6) YEARS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of ONE (1) YEAR AND FOUR (4) MONTHS for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION from serving as a member of the security forces;
f) ABSOLUTE DISQUALIFICATION for the duration of the prison sentence for the exercise of parental authority, the administration of property, the enjoyment of any retirement, pension or withdrawal and the right to dispose of them by acts inter vivos (art. 12 of the CP).
9) TO ORDER, with express imposition of costs, RUBEN ALBERTO AMENDOLARA, whose personal data are included in this document, as co-author of the crime provided for in arts. 864 inc. b and 865 incs. a and f of the CA, in relation to import clearances whose order numbers are: 2 and 10, to suffer the following penalties (arts. 876 incs. d, e, f and h of the CA, 45 and 55 of the CP):
a) TWO (2) YEARS AND TWO (2) MONTHS OF PRISON, suspended,
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for FOUR (4) YEARS AND FOUR (4) MONTHS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of NINE (9) MONTHS for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION to serve as a member of the security forces.
10) ACQUIT Rodolfo DEL CASTILLO, whose personal details are included in this document, of GUILT AND CHARGE as the author of the crime of smuggling for which there was an accusation in relation to the import dispatches with order numbers 42 and 43. Without costs.
11) ACQUIT Alejandro Mariano GACHE, whose personal details are included in this document, of GUILT AND CHARGE as the author of the crime of smuggling for which there was an accusation in relation to the import clearance whose order number is 53. Without costs.
12) ACQUIT Fernando Matías ARANGUREN, whose personal details are included in this document, of GUILT AND CHARGE as the author of the crime of smuggling for which there was an accusation in relation to the import clearance whose order number is 53. Without costs.
13) ACQUIT OF GUILT AND CHARGE Carlos Roberto OCAMPO, whose personal data are contained in this document, as the author of the crime of smuggling for which there was an accusation in relation to the import dispatches whose order numbers are 12, 13, 14, 15, 16, 17, 19 and 20. Without costs.
14) ACQUIT OF GUILT AND CHARGE Jorge Damián REQUIERE, whose personal data are contained in this document, as the author of the crime of smuggling for which there was an accusation in relation to the import dispatches whose order numbers are 12, 13, 14, 15, 16, 17, 19 and 20. Without costs.
15) ACQUIT Víctor Adrián QUADRINI, whose personal data are included in this document, of GUILT AND CHARGE as the author of the crime of smuggling for which there was an accusation in relation to the import dispatches whose order numbers are 12, 13, 14, 15, 16, 17, 19 and 20. Without costs.
16) ACQUIT Miguel Antonio COTRONEO, whose personal data are included in this document, of GUILT AND CHARGE in relation to the crime of smuggling for which there was an accusation regarding the import shipments whose order numbers are 1, 3, 4, 5, 6, 7, 8, and 9. Without costs.
17) ACQUIT Noe FRANCO, whose personal details are included in this document, of GUILT AND CHARGE in relation to the crime of smuggling for which there was an accusation regarding the import dispatches whose order numbers are 2 and 10. Without costs.
217. With the exception of what is discussed in points 161 to 164 and 197 to 216, Dr. César Osiris LEMOS agrees with the rest of the judgment in question.
V. Other issues.
218. In accordance with the request made by the Public Prosecutor, testimony will be obtained in order to investigate the commission of possible crimes with respect to the events involved in the import shipments with order numbers 22 and 28 in relation to the participation of GACHE and ARANGUREN in them.
219. Testimonies will also be extracted in order to investigate the commission of possible crimes regarding the event involved in the import clearance whose order number is 34 in relation to the participation of GONZALEZ and RIVEIRO RIVAS in them.
220. Relevant testimony will be extracted in order to investigate the conduct of Federico CLASEN, Julio GONZALEZ, Carlos SALA and the firm Carlos Sala SA. For this purpose, the documentation regarding the named individuals that is confidential in the Secretariat will be sent to the investigating court involved.
221. The relevant testimonies will be forwarded for investigation into the participation of Pedro David SCHOJET regarding the importation carried out in the name of the witness Hernán Rubén Dario TOMASINI, as requested by the Prosecutor in his argument, in light of the statements made by the witness in his declaration during the debate.
222. The extraordinary appeal filed by the defense of RIVEIRO RIVAS and GONZALEZ regarding the Court's decision issued in relation to its interpretation of art. 393 of the CPP will not be upheld. This is because the contested decision is not a final judgment, but rather an interlocutory decision made by the Court during the hearing.
223. Photocopies of the relevant parts will be sent to the intervening Court of Instruction in order to investigate the participation of AMENDOLARA in the import shipments for which he was prosecuted and required but not thus investigated, and in the eight shipments for which he was investigated, in accordance with what was already resolved by the Court, in the minutes of the debate dated 1 October last.
224. The extraction of testimonies requested in relation to the possible commission of the crime of false testimony in which AMARANTE and VEGA may have incurred will not be granted, without prejudice to the respective documents being made available to the requesting party. This is because the contradictions observed in both testimonies are not sufficiently significant to extract testimonies for the purposes requested.
225. The appeals and reservations of the federal case made by the parties in their respective arguments are taken into account.
226. It is noted that due to a material error, the operative section dated November 12 in point 20) included the firm Sala Importadora instead of Carlos Sala SA.
227. In relation to the provisions of point 23), it is highlighted that the references referred to refer not only to the import dispatches for which AMENDOLARA was prosecuted and requested (50 facts), but also include the eight dispatches for which he was investigated but not prosecuted, according to the lists in annexes 1 and 2 of the resolution dated October 1, 2001, which is included in the respective minutes of the debate.
228. The fact that Pedro SCHOJET participated in the conduct of the court was also recorded as materially incorrect, taking into account that the accused is accused of participating in only one of the events investigated.
For the above reasons, in accordance with arts. 398 et seq. of the CPP and after hearing the parties, the Court, by majority
RESOLVED:
1) CONDEMN with express imposition of costs Jorge Damian REQUIRES as co-author of the crime of smuggling provided for in arts. 864 inc. b and 865 incs. ayf of the CA, in order to the facts involved with the import dispatches whose order numbers are: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60 and 61 to suffer the following penalties (arts. 876 incs. d, e, fyh of the CA, and 45 and 55 of the CP):
a) FIVE (5) YEARS IN PRISON,
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for TEN (10) YEARS to serve as a public official or employee,
d) SPECIAL DISQUALIFICATION of TWO (2) YEARS for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION from serving as a member of the security forces;
f) ABSOLUTE DISQUALIFICATION for the duration of the prison sentence for the exercise of parental authority, the administration of property, the enjoyment of any retirement, pension or withdrawal and the right to dispose of them by acts inter vivos (art. 12 of the CP).
2) CONDEMN with express imposition of costs Víctor Adrian QUADRINI, as co-author of the crime of smuggling provided for in arts. 864 inc. b and 865 incs. ayf of the CA, in order to the facts involved with the import dispatches whose order numbers are: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60 and 61 to suffer the following penalties (arts. 876 incs. d, e, fyh of the CA, and 45 and 55 of the CP):
a) FIVE (5) YEARS IN PRISON,
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for TEN (10) YEARS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of TWO (2) YEARS for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION from serving as a member of the security forces;
f) ABSOLUTE DISQUALIFICATION for the duration of the prison sentence for the exercise of parental authority, the administration of property, the enjoyment of any retirement, pension or withdrawal and the right to dispose of them by acts inter vivos (art. 12 of the CP).
3) TO ORDER, with express imposition of costs, Alejandro Mariano GACHE as a necessary participant in the crime provided for in arts. 864 inc. b and 865 incs. a of the CA, in relation to the facts related to the import dispatches whose order numbers are 9, 29 and 51, to suffer the following penalties (arts. 886, 876 incs. d, e, f and h of the CA and art. 55 of the CP):
a) TWO (2) YEARS AND SIX (6) MONTHS OF PRISON, suspended;
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for FIVE (5) YEARS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of ONE (1) YEAR AND THREE (3) MONTHS for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION to serve as a member of the security forces.
4) CONDEMN, with express imposition of costs, Fernando Matías ARANGUREN as a necessary participant in the crime provided for in arts. 864 inc. b, 865 incs. a of the CA, in order to the facts related to the import dispatches whose order numbers are 9, 29 and 51, to suffer the following penalties (arts. 886, 876 incs. d, e, f and h of the CA and 55 of the CP):
a) TWO (2) YEARS AND SIX (6) MONTHS OF PRISON, suspended,
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for FIVE (5) YEARS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of ONE (1) YEAR AND THREE (3) MONTHS for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION to serve as a member of the security forces.
5) CONDEMN, with express imposition of costs, Luis RIVEIRO RIVAS, whose personal data appear in this document, as a necessary participant in the crime provided for in arts. 864 inc. b and 865 inc. a of the CA in the facts involved with the import dispatches whose order numbers are 18, 24, 28, 46, 47, 50, 52, 53, 54, 55 and 56, to suffer the following penalties (arts. 886 and 876 incs. d, e, f and h of the CA and 55 of the CP):
a) THREE (3) YEARS OF PRISON, suspended,
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for SIX (6) YEARS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of ONE (1) YEAR AND SIX (6) MONTHS for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION to serve as a member of the security forces.
6) CONDEMN with express imposition of costs Néstor Juan GONZALEZ, whose personal data appear in this document, as a necessary participant in the crime provided for in arts. 864 inc. b and 865 inc. a of the CA in the facts involved with the import dispatches whose order numbers are 18, 24, 28, 46, 47, 50, 52, 53, 54, 55 and 56 to suffer the following penalties (arts. 886, 876 incs. d, e, f and h of the CA and 55 of the CP):
a) THREE (3) YEARS OF PRISON, suspended,
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for SIX (6) YEARS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of ONE (1) YEAR AND SIX (6) MONTHS for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION from serving as a member of the security forces;
7) ORDER, with express imposition of costs, Pedro David SCHOJET, whose personal data are included in this document, as a necessary participant in the crime provided for in art. 864 inc. b and 865 inc. a of the CA in relation to the fact linked to the import clearance whose order number is 53, to suffer the following penalties (arts. 886, 876 incs. d, e, f and h of the CA):
a) TWO (2) YEARS OF PRISON, suspended;
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for FOUR (4) YEARS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of SIX (6) MONTHS for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION to serve as a member of the security forces.
8) CONDEMN with express imposition of costs Carlos Roberto OCAMPO, whose personal data are included in this document, as co-author of the crime provided for in art. 864 inc. b, 865 incs. ayf of the CA, in order to the facts related to the import dispatches whose order numbers are: 11, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60 and 61 to suffer the following penalties (arts. 876 incs. d, e, f and h of the CA, 45 and 55 of the CP):
a) FOUR (4) YEARS IN PRISON,
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for EIGHT (8) YEARS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of ONE (1) YEAR AND EIGHT (8) MONTHS for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION from serving as a member of the security forces;
f) ABSOLUTE DISQUALIFICATION for the duration of the prison sentence for the exercise of parental authority, the administration of property, the enjoyment of any retirement, pension or withdrawal and the right to dispose of them by acts inter vivos (art. 12 of the CP).
9) TO ORDER, with express imposition of costs, RUBEN ALBERTO AMENDOLARA, whose personal data are included in this document, as co-author of the crime provided for in arts. 864 inc. b and 865 incs. a and f of the CA, in order to the facts related to the import clearances whose order numbers are 2 and 10, to suffer the following penalties (arts. 876 incs. d, e, f and h of the CA, 45 and 55 of the CP):
a) TWO (2) YEARS AND THREE (3) MONTHS OF PRISON, suspended,
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed;
c) ABSOLUTE DISQUALIFICATION for FOUR (4) YEARS AND SIX (6) MONTHS to serve as a public official or employee;
d) SPECIAL DISQUALIFICATION of ONE (1) YEAR for the exercise of commerce;
e) PERPETUAL SPECIAL DISQUALIFICATION to serve as a member of the security forces.
10) ACQUIT Rodolfo DEL CASTILLO, whose personal details are included in this document, of GUILT AND CHARGE as the author of the crime of smuggling for which there was an accusation in relation to the facts involved with the import shipments whose order numbers are 42 and 43. Without costs.
11) ACQUIT Alejandro Mariano GACHE, whose personal data are included in the case file, of GUILT AND CHARGE in relation to the crime of smuggling for which there was an accusation in relation to the fact linked to the import clearance whose order number is 53. Without costs.
12) ACQUIT Fernando Matías ARANGUREN, whose personal data are included in the case, of GUILT AND CHARGE in relation to the crime of smuggling for which there was an accusation in relation to the fact linked to the import clearance whose order number is 53. Without costs.
13) ACQUIT OF GUILT AND CHARGE Carlos Roberto OCAMPO, whose personal data are contained in this document, in relation to the crime of smuggling for which there was an accusation regarding the import shipments whose order numbers are: 12, 13, 14, 15, 16, 17, 19 and 20. Without costs.
14) ACQUIT OF GUILT AND CHARGE Jorge Damian REQUIRES, whose personal data are contained in this document, in order to the crime of smuggling for which there was an accusation in relation to the import shipments whose order numbers are: 12, 13, 14, 15, 16, 17, 19 and 20. Without costs.
15) ACQUIT OF GUILT AND CHARGE Victor Adrian QUADRINI, whose personal data are contained in this document, in relation to the crime of smuggling for which there was an accusation in relation to the import dispatches whose order numbers are: 12, 13, 14, 15, 16, 17, 19 and 20. Without costs.
16) ACQUIT Miguel Antonio COTRONEO, whose personal data are included in this document, of GUILT AND CHARGE in relation to the crime of smuggling for which there was an accusation regarding the import shipments whose order numbers are: 1, 3, 4, 5, 6, 7, 8, and 9. Without costs.
17) ACQUIT Noe FRANCO, whose personal data are included in this document, of GUILT AND CHARGE in relation to the crime of smuggling for which there is an accusation regarding the facts involved with the import shipments whose order numbers are: 2 and 10. Without costs.
18) EXTRACT TESTIMONIES in order to investigate the commission of possible crimes regarding the events involved in the import shipments whose order numbers are 22 and 28 in relation to the participation of GACHE and ARANGUREN in them.
19) EXTRACT TESTIMONIES in order to investigate the commission of possible crimes regarding the event involved in the import clearance whose order number is 34 in order to determine the participation of GONZALEZ and RIVEIRO RIVAS in them.
20) EXTRACT RELEVANT TESTIMONIES in order to investigate the conduct of Federico CLASEN, Julio GONZALEZ, Carlos SALA and the firm Carlos Sala SA, and send the documentation regarding those named that is confidential in the Secretariat.
21) EXTRACT RELEVANT TESTIMONIES to investigate the participation of Pedro David SCHOJET regarding the importation carried out in the name of the witness Hernán Rubén Dario TOMASINI.
22) NOT TO ALLOW the extraordinary appeal filed by the defense of RIVEIRO RIVAS and GONZALEZ regarding the Court's resolution issued in relation to its interpretation of art. 393 of the CPP.
23) SEND to the intervening Court of Instruction photocopies of the relevant parts in order to investigate the participation of AMENDOLARA in the import clearances for which he was prosecuted and required but not so investigated, and in which he was investigated and not required, in accordance with what has already been resolved by the Court.
24) NOT TO ALLOW the extraction of testimonies requested in relation to the possible commission of the crime of false testimony in which AMARANTE and VEGA could have incurred, without prejudice to making the respective documents available to the requesting party.
25) BEAR IN MIND the appeals and reservations of the federal case made by the parties in their respective arguments.
Register, report and comply.
