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Adler v. Nigeria (419 fraud claim; unclean hands)

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  • Adler v. Nigeria (419 fraud claim; unclean hands)


    Same case on appeal, affirming decision below:


    JAMES E. ADLER, aka Jaime Adler; EL SURTIDOR DEL HOGAR, S.A. DE C.V., a
    Mexican Corporation, Plaintiffs-Appellees- Cross-Appellants, v. THE FEDERAL
    REPUBLIC OF NIGERIA, a Sovereign State; CENTRAL BANK OF NIGERIA; PAUL
    OGWUMA, aka Paul Oguma; NIGERIAN NATIONAL PETROLEUM CORPORATION,
    Defendants-Appellants- Cross-Appellees, and CHIEF ABBA GANNA HEN GEORGE; C.
    ODIBO, BALLA PETERS; STANLEY EKE; SOLOMON DANIELS; CLEMENT VICTOR ODOZI,
    CHIEF JOHN OLISA A. AHMED; MAJOR USMAN DAVID PASCAL UZO; UKPO AKPAN; CHIKE
    OKONKWO; ALHAJI JUBRIL ABDULLAHI; ANDREW AYOMANU; EDMUND ODAFE; MALLAM
    ABUBAKAR; A. AHMED; PASCAL UZO, Defendants-Cross-Appellees.

    No. 98-55456, 98-55460

    UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

    219 F.3d 869;2000 U.S. App. LEXIS 10702;2000 Cal. Daily Op. Service
    3847;2000 Daily Journal DAR 5165

    November 2, 1999, Argued and Submitted, Pasadena, California

    May 17, 2000, Filed


    SUBSEQUENT HISTORY: [*1]

    As Amended on Denial of Rehearing and Rehearing En Banc August 17, 2000,
    Reported at: 2000 U.S. App. LEXIS 20687.


    PRIOR HISTORY: Appeal from the United States District Court for the
    Southern District of California. D.C. No. CV-94-00779-IEG. Irma E. Gonzalez,
    District Judge, Presiding.
    1998 U.S. Dist. LEXIS 23419
    <http://groups.google.com/groups?selm=BC510EC4.A124%25tamsuraiya%40yahoo.ca>


    DISPOSITION: AFFIRMED.

    COUNSEL: Richard E. McCarthy, Solomon, Ward, Seidenwurm & Smith, San
    Diego, California, for the plaintiffs-appellees-cross-appellants.

    David H. Fromm, Chalos & Brown, New York, New York, attorneys for the
    defendants-appellants-cross-appellees.

    JUDGES: Before: Harry Pregerson, John T. Noonan, and Diarmuid F.
    O'Scannlain, Circuit Judges. Opinion by Judge Pregerson; Dissent by Judge
    Noonan.

    OPINIONBY: Harry Pregerson

    OPINION: AMENDED OPINION

    PREGERSON, Circuit Judge:

    At the center of this case is an illegal contract between plaintiff James
    Adler and various Nigerian individuals, including at least one government
    official, to convert Nigerian government funds for their personal use. The
    individual Nigerian defendants proposed the agreement to Adler, but did not
    perform their side of the bargain. Adler did perform, and now seeks to
    recover over five million dollars he paid to further the illegal contract
    and to bribe Nigerian government officials. The issue before this court is
    whether this criminal activity falls within the [*2] "commercial activity"
    exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. 1330
    et seq. The district court held that the defendants were not immune from
    suit, but applied the unclean hands doctrine to bar Adler from recovering.
    Defendants appeal and plaintiffs cross-appeal. We have jurisdiction under 28
    U.S.C. 1291, and we affirm. We hold that an illegal contract constitutes
    commercial activity under the FSIA. We also affirm the district court's
    factual findings, and its application of the clean hands defense to bar
    Adler's recovery.

    I

    Plaintiffs in this case are James E. Adler and El Surtidor del Hogar, S.A.
    de C.V. ("El Surtidor"). Adler is a United States citizen who resides in
    California and is president and controlling shareholder of El Surtidor. El
    Surtidor is a Mexican corporation with its principal place of business in
    Tijuana, Mexico. Defendants are the Federal Republic of Nigeria, the Central
    Bank of Nigeria ("CBN"), and seventeen Nigerian officials.

    The events in this case began in August 1992 when Adler received a letter
    signed by Chief Abba Ganna. The letter proposed a "business transaction"
    between [*3] Adler, Ganna and the Chief Accountant of the Nigerian
    National Petroleum Corporation ("NNPC"). Ganna explained the transaction as
    follows:


    During the last civilian regime here in Nigeria, the elected members of the
    ruling party used their positions and formulated companies and awarded
    themselves contracts which were fantastically over-invoiced in various
    government ministries.

    On the overthrow of the regime by the present military government, an
    enquiry was set to this. Findings and recommendations were made to the
    government who has given its blessing for the payment of these contracts
    half/fully executed. You can now see that there is a good deal for these
    government officials presently in office hence the ousted notable party
    stalwarts can not come forward for some of the claims.

    Ganna requested that Adler send (1) four signed and stamped copies of El
    Surtidor letterhead and pro forma invoices; and (2) the number to a foreign
    bank account where 130 million dollars could be deposited. In addition,
    Adler would be responsible for purchasing first-class airplane tickets for
    Nigerian officials to travel to Mexico to collect their share of the money.
    In exchange for [*4] providing these services, Adler would earn a forty
    percent commission. The remaining sixty percent of the stolen funds would be
    divided between "miscellaneous expenses" (ten percent) and "the government
    officials" (fifty percent). As requested, Adler sent the letterhead,
    invoices, and the number of a bank account in the Grand Cayman Islands.

    In September 1992, Adler traveled to Nigeria and was permitted to enter the
    country with a document from the Federal Ministry of Internal Affairs in
    lieu of a visa. He visited the home of the Minister of Finance and an office
    of the CBN where he met with various individuals who identified themselves
    as Nigerian government officials. Among these "officials" was John Olisa,
    Deputy Governor of the CBN. Olisa showed Adler a bank draft for sixty
    million dollars made out to El Surtidor and Jaime Adler, and presented Adler
    with a contract which Adler signed without reading. Olisa told Adler that he
    would give him a copy of the contract after Adler deposited funds to cover
    the difference in the exchange rate between the U.S. dollar and the Nigerian
    nira ("shortfall deposit funds"). Adler was led to believe that the Nigerian
    government had assigned to [*5] El Surtidor rights under a contract
    between the NNPC and Strabarg Company, another foreign company, for the
    computerization of Nigerian oil fields.

    Beginning with Olisa's request for the shortfall deposit funds, individuals,
    whom Adler believed to be officials of the Nigerian government, repeatedly
    requested payments from Adler. They described these payments variously as
    shortfall deposit funds, taxes, processing fees, confirmation fees,
    surcharges, legal fees, travel expenses, and gratification. Almost every
    time that someone requested a payment from Adler, that individual told Adler
    that as soon as he made that payment, the sixty million dollars would be
    deposited into his account. Adler continued making payments to Nigerian
    officials even after he filed this lawsuit. These payments totaled $
    5,180,000.

    In May 1993, Adler hired a Nigerian lawyer to prepare an affidavit declaring
    that El Surtidor and Strabarg were sister companies. Adler was told that it
    was necessary to submit the false affidavit to a Nigerian court in order to
    obtain the promised funds.

    Between August 1992 and July 1994, Adler corresponded, by mail and by
    telephone, with a variety of individuals who represented [*6] themselves
    as officials of the Nigerian government. In addition, Adler made two more
    trips to Nigeria prior to filing this lawsuit. In December 1992, he visited
    Olisa's residence. On the April 1994 trip, Adler met with Paul Ogwuma,
    Governor of the CBN.

    In November 1993, Adler borrowed $ 450,000 from Banca Serafin to pay a stamp
    duty tax. As a condition of the loan, Banca Serafin conducted due diligence
    and required Adler to change the routing instructions for the sixty million
    dollars from his Grand Cayman Islands' bank account to Banca Serafin's New
    York bank account. On Adler's authorization, a Banca Serafin official
    directed Dr. Clement Odozi, another Deputy Governor of the CBN, to send the
    sixty million dollars to New York.

    In February 1994, Adler hired former Congressmen Mervyn Dymally and Jim
    Bates to assist him in collecting the sixty million dollars. Dymally
    traveled to Nigeria, investigated the situation, and reported to Adler that
    the agreement was a "scam." Even after receiving this report, Adler
    continued to make payments requested by the Nigerian officials.

    In May 1994, Adler filed this suit in district court, naming as defendants
    the Federal Republic of Nigeria, the [*7] CBN, the NNPC, n1 and seventeen
    Nigerian officials. n2 Adler alleged claims for fraud, conspiracy to commit
    fraud, and negligence, among others. Defendants moved to dismiss on the
    basis of the FSIA, but the district court denied their motion. This court
    affirmed, holding that the commercial activity exception to the FSIA applied
    because the contract between the NNPC and Strabarg, along with the
    assignment to El Surtidor, constituted commercial activity, and that
    Nigeria's contractual obligation to make payment to Adler in New York was a
    direct effect in the United States. See Adler v. Federal Republic of
    Nigeria, 107 F.3d 720 (9th Cir. 1997).

    - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
    - -

    n1 The district court dismissed the NNPC after plaintiffs rested their case.

    n2 Of the seventeen named officials, only Paul Ogwuma, Governor of the CBN,
    was served and answered the complaint.

    - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
    - -

    The case proceeded to trial. After an eight day bench trial, the district
    court found, among other things, that (1) no contract existed between the
    NNPC and Strabarg [*8] and therefore, the NNPC could not have assigned
    Strabarg's rights to El Surtidor; (2) the Ganna letter involved criminal
    activity on its face and Adler knowingly and intentionally participated in
    that activity; (3) Adler believed that he was dealing with Nigerian
    government officials and that the scheme was sanctioned by the Nigerian
    government; (4) Adler paid bribes totaling 2.11 million dollars to Nigerian
    officials in violation of California bribery law, Cal. Penal Code 7(6),
    and the Foreign Corrupt Practices Act, 15 U.S.C. 78dd2; (5) Adler, through
    Banca Serafin, instructed the Nigerian officials to deposit the funds in New
    York; (6) at least one official of the Nigerian government, CBN Governor
    Paul Ogwuma, participated as a co-conspirator in the fraud against Adler;
    and (7) the Nigerian government permitted other co-conspirators to use the
    CBN offices to further the fraud. On these facts, the district court decided
    that the unclean hands doctrine barred Adler from recovering the money he
    paid to Nigerian government officials. n3 The district court also revisited
    the sovereign immunity question and reaffirmed that the commercial activity
    exception [*9] applied.

    - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
    - -

    n3 The district court made factual findings pertaining to the defendants'
    acts of fraud, but apparently did not decide whether the defendants actually
    committed any of the torts alleged.

    - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
    - -

    II

    We begin with the question of jurisdiction which is a question of law that
    we review de novo. See In re estate of Ferdinand Marcos Human Rights
    Litigation, 94 F.3d 539, 543 (9th Cir. 1996). The FSIA "provides the sole
    basis for obtaining jurisdiction over a foreign state in the courts of this
    country." Argentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428,
    443, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989). Under the FSIA, a foreign
    state is presumptively immune from suit in federal court unless one of the
    exceptions to the statute applies. See 28 U.S.C. 1604. There is no dispute
    here that the Federal Republic of Nigeria, the CBN, and Ogwuma fall within
    the FSIA's definition of a foreign state. See 28 U.S.C. 1603(a) ("A [*10]
    'foreign state' . . . includes . . . an agency or instrumentality of a
    foreign state."); Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095, 1106-06
    (9th Cir. 1990) (holding that government officials fall within the
    definition of an "agency or instrumentality" of a foreign state). The only
    issue in dispute is whether the FSIA's commercial activity exception applies
    to the facts of this case. n4

    - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
    - -

    n4 Our decision in Adler is not law of the case because that decision was
    issued before the district court found that the Strabarg contract and
    assignment were fictitious.

    - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
    - -

    The commercial activity exception to the FSIA denies foreign states immunity
    from suit in three circumstances:


    A foreign state shall not be immune from the jurisdiction of courts of the
    United States . . . in any case . . . in which the action is based [1] upon
    a commercial activity carried on in the United States by the foreign state;
    or [2] upon an act performed in the United States in connection with a
    commercial activity [*11] of the foreign state elsewhere; or [3] upon an
    act outside the territory of the United States in connection with a
    commercial activity of the foreign state elsewhere and that act causes a
    direct effect in the United States.

    28 U.S.C. 1605(a)(2) (emphasis added). The third clause is at issue here
    because this suit is based on the defendants' acts of fraud, conspiracy, and
    negligence which occurred outside of the United States. Defendants contend
    that the FSIA's commercial activity exception does not apply because (1)
    their acts were not "in connection with a commercial activity"; and (2)
    their acts did not have a direct effect in the United States. n5 We
    disagree.

    - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
    - -

    n5 An additional requirement for the commercial activity exception to apply
    was set out in Phaneuf v. Rep. of Indonesia, 106 F.3d 302 (9th Cir. 1997).
    In Phaneuf, we held that a agent must act with actual authority in order to
    bind a sovereign under the commercial activity exception. Id. at 308.
    Neither party contends that Phaneuf is applicable to this case. Indeed, the
    thrust of defendants' argument is that the district court erred in finding
    that Ogwuma participated in the fraud, not that Ogwuma did so without
    authorization from the government.

    In any event, Phaneuf's rule does not defeat federal jurisdiction over this
    case. The district court found, not only that Ogwuma, Governor of the CBN,
    participated as a co-conspirator in the fraud, but also that the Nigerian
    government permitted other conspirators to use the CBN offices to further
    the fraud. "Once the plaintiff offers evidence that an FSIA exception to
    immunity applies, the party claiming immunity bears the burden of proving by
    a preponderance of the evidence that the exception does not apply." Joseph
    v. Office of Consulate General of Nigeria, 830 F.2d 1018, 1021 (9th Cir.
    1987). Defendants have not sustained their burden of proving that Ogwuma and
    others acted without actual authority.

    - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
    - - [*12]

    A

    The FSIA defines "commercial activity" as "a regular course of commercial
    conduct or a particular commercial transaction or act." 28 U.S.C. 1603(e).
    It also instructs that "the commercial character of an activity shall be
    determined by reference to the nature of the course of conduct or particular
    transaction or act, rather than by reference to its purpose." Id. The
    agreement between Adler and the Nigerian officials was a commercial
    transaction. The Nigerian officials contracted for Adler's services: they
    offered Adler a commission if he would provide them with stamped letterhead,
    invoices and a bank account to which they could transfer money. Adler
    accepted their offer. A contract for services is plainly commercial in
    nature. The fact that the contract was for an illegal purpose, and therefore
    was unenforceable, does nothing to destroy its commercial nature. See Saudi
    Arabia v. Nelson, 507 U.S. 349, 366, 123 L. Ed. 2d 47, 113 S. Ct. 1471
    (1993) (White, J., concurring) (stating that torture of plaintiff by police
    was not commercial activity, but torture of plaintiff by government hired
    thugs would be commercial activity); Braka v. Multibanco Comermex, S.A., 589
    F. Supp. 802, 805 (S.D.N.Y. 1984) [*13] (holding that the sale of
    unregistered securities is commercial activity under the FSIA). n6

    - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
    - -

    n6 The dissent disagrees with our characterization of the agreement between
    Adler and the Nigerian officials as a contract for services, and contends
    that an agreement that is illegal either in nature or in purpose is not a
    commercial agreement. Neither the plain meaning of the term commercial, nor
    the sources cited by the dissent provide support for that proposition. See
    Black's Law Dictionary 263 (7th ed. 1999) (defining "commerce" as "the
    exchange of goods and services, esp. on a large scale involving
    transportation between cities, states, and nations").

    - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
    - -

    Not all criminal activity falls within the FSIA's commercial activity
    exception. That proposition is well-established by decisions of this court
    and others. See Berkovitz v. Islamic Republic of Iran, 735 F.2d 329, 331
    (9th Cir. 1983) (finding that murder is not commercial in nature); see also
    MCI Telecommunications Corp. v. Alhadhood, 82 F.3d 658, 664 (5th Cir. 1996)
    [*14] (finding that making unauthorized telephone calls is not commercial
    activity); Cicippio v. Islamic Republic of Iran, 308 U.S. App. D.C. 102, 30
    F.3d 164, 167-68 (D.C. Cir. 1994) (holding that kidnaping is not commercial
    activity); Letelier v. Republic of Chile, 748 F.2d 790, 797 (2d 1984)
    (holding that assassination is not commercial activity). Our decision today
    does not conflict with that case law. Each of those cases involved illegal
    activity devoid of any commercial component. What this case involves, and
    what drives our decision in this case, is the district court's finding that
    Adler and the Nigerian officials made a contract for illegal activity. n7

    - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
    - -

    n7 Defendants attempt to obfuscate the issue by repeatedly declaring that
    the district court found that no contract existed. The district court found
    that there was no contract between the NNPC and Strabarg, but it also found
    that there was an illegal contract between Adler and the government
    officials to convert government funds.

    - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
    - - [*15]

    The Supreme Court's decision Republic of Argentina v. Weltover, 504 U.S.
    607, 612, 119 L. Ed. 2d 394, 112 S. Ct. 2160 (1992), also supports our
    conclusion that an illegal contract is commercial activity. That case
    involved the question whether the Argentine government acted "in connection
    with commercial activity" when it refinanced bonds in order to stabilize the
    national currency. The Court held that "when a foreign government acts, not
    as a regulator of a market, but in the manner of a private player within it,
    the foreign sovereign's actions are 'commercial' within the meaning of the
    FSIA." Id. at 614. It further explained that "the question is not whether
    the foreign government is acting with a profit motive or instead with the
    aim of fulfilling uniquely sovereign objectives. Rather, the issue is
    whether the particular actions that the foreign state performs (whatever the
    motive behind them) are the type of actions by which a private party engages
    in 'trade and traffic or commerce.'" Id. (quoting Black's Law Dictionary 270
    (6th ed. 1990)).

    The agreement to convert Nigerian government funds satisfies the Weltover
    definition of commercial [*16] activity. When the Nigerian officials
    offered Adler a cash commission for participating in an enterprise for
    mutual advantage, they did essentially what every private party does in the
    open market (notwithstanding the fact that their precise undertakings were
    illegal).

    B

    Having concluded that this suit is based on acts "in connection with a
    commercial activity," we turn to the second question: whether the
    defendants' acts caused a direct effect in the United States. "An effect is
    'direct' if it follows as an immediate consequence of the defendant's
    activity." Weltover, 504 U.S. at 618 (internal quotation marks omitted). In
    adopting the "immediate consequences" rule, the Supreme Court rejected the
    more onerous "substantial and foreseeable" test employed by many circuits.
    See id. Following Weltover, this court reaffirmed the rule that a direct
    effect requires that "'legally significant acts giving rise to the claim
    occurred'" in the United States. Adler, 107 F.3d at 727 (quoting United
    World Trade v. Mangyshlakneft Oil Production ***'n, 33 F.3d 1232, 1239 (10th
    Cir. 1994)).

    We have little trouble identifying a [*17] direct effect in the United
    States caused by the defendants' acts. Adler used the United States mails
    and telephones to commit bribery in violation of the FCPA as an "immediate
    consequence" of the defendants' acts. The defendants asked Adler for bribe
    payments, and persuaded Adler to pay them by telling him that sixty million
    dollars would be deposited in his bank account if he did so. Therefore,
    Adler's payment of bribes was an immediate consequence of the defendants'
    fraudulent acts. Adler's acts of bribery are legally significant with
    respect to the tort claims because Adler seeks to recover the money he paid
    in bribes. n8

    - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
    - -

    n8 The district court identified two other effects in the United States: (1)
    Adler instructed the CBN to deposit the funds in a New York bank account;
    and (2) Adler hired former United States congressmen to investigate the
    Nigerian scheme. Because we find that Adler's violation of the FCPA
    satisfies the "direct effect" prong, we do not decide whether the second and
    third effects identified by the district court are also direct effects.

    - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
    - - [*18]

    III

    On appeal, defendants ask us to reverse several of the district court's
    factual findings. Specifically, defendants challenge the following findings
    of fact: (1) Adler met CBN Governor Paul Ogwuma and Ogwuma was a
    co-conspirator in the conspiracy to defraud Adler; (2) Ogwuma sent Adler
    letters requesting payments; (3) Adler paid Ogwuma $ 50,000; (4) Adler met
    the Nigerian Minister of Finance at the Minister's home; (5) Adler met John
    Olisa and Olisa is a Deputy Governor of the CBN; (6) Adler received a
    Revenue Collector's Receipt showing payment of $ 300,000; (7) the Nigerian
    government required a shortfall payment of $ 570,000; (8) Adler paid various
    fees and taxes to the Nigerian government; (9) Brigadier Ball Peters was
    Unit Commander for the Presidential Task Force on Trade Malpractices of CBN;
    and (10) Dr. Clement Odozi was the Deputy Governor of the CBN.

    We review a district court's factual findings for clear error. See Fed. R.
    Civ. P. 52(a); Adler, 107 F.3d at 729. "We accept the lower court's findings
    of fact unless upon review we are left with the definite and firm conviction
    that a mistake has been committed." United States v. Doe, 155 F.3d 1070,
    1074 (9th Cir. 1998) [*19] (en banc). We may not reject the district
    court's "account of the evidence [if it] is plausible in light of the record
    viewed in its entirety." Id. Here, the district court's factual findings
    present a plausible account of the evidence, and therefore defendants'
    challenge fails to satisfy the clear error standard.

    IV

    On cross-appeal, Adler argues that the district court erred in applying the
    unclean hands doctrine. The unclean hands doctrine "closes the doors of a
    court of equity to one tainted with inequitableness or bad faith relative to
    the matter in which he seeks relief, however improper may have been the
    behavior of the defendant." Precision Inst. Mfg. Co. v. Automotive
    Maintenance Machine Co., 324 U.S. 806, 814, 89 L. Ed. 1381, 65 S. Ct. 993
    (1945). Under this doctrine, plaintiffs seeking equitable relief must have
    "acted fairly and without fraud or deceit as to the controversy in issue."
    Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1097 (9th Cir. 1985) (citing
    Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 387, 88 L. Ed. 814, 64 S.
    Ct. 622 (1944); Keystone Driller Co. v. General Excavator Co., 290 U.S. 240,
    245, 78 L. Ed. 293, 54 S. Ct. 146 (1933)). [*20] The district court
    decided that Adler dirtied his hands by intentionally attempting to aid and
    abet the Nigerian officials' scheme to steal from the government treasury
    and by paying bribes.

    Under California law, we review the district courts decision to apply the
    unclean hands doctrine for an abuse of discretion. See Health Maintenance
    Network v. Blue Cross of Southern California, 202 Cal. App. 3d 1043, 249
    Cal. Rptr. 220 (1988). A district court "abuses its discretion if it bases
    its ruling on an erroneous view of the law or on a clearly erroneous
    assessment of the evidence." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
    405, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990); see also United States v.
    Washington, 98 F.3d 1159, 1162 (9th Cir. 1996).

    In deciding whether Adler's unclean hands barred relief, the district court
    applied the correct legal standard. In California, the unclean hands
    doctrine applies not only to equitable claims, but also to legal ones. See
    Jacobs v. Universal Development Corp., 53 Cal. App. 4th 692, 699 (1997). The
    court examined, as California law requires, the nature of the misconduct at
    issue [*21] and the misconduct's equitable impact on the relationship
    between the parties and the injuries claimed. See Unilogic v. Burroughs, 10
    Cal. App. 4th 612, 619-20 (1992) (citing Blain v. Doctor's Co., 222 Cal.
    App. 3d 1048, 1060, 272 Cal. Rptr. 250 (1990)).

    Nevertheless, Adler puts forth a variety of arguments in an attempt to
    persuade this court that inequity results from the district court's exercise
    of discretion. He asserts that he and the Nigerian officials are not equally
    at fault; that the Nigerian officials will be unjustly enriched if they do
    not return the funds to Adler; and that this court should grant Adler a
    remedy because, by doing so, it will discourage Nigerian officials from
    perpetrating such schemes in the future. Whatever the merits of these
    arguments, the district court did not abuse its discretion in reaching the
    opposite conclusion.

    First, it is not clear that Adler is any less blameworthy than the Nigerian
    officials. The Nigerian officials proposed the criminal scheme, but Adler
    voluntarily participated it. And while the Nigerian officials successfully
    defrauded Adler of over five million dollars, Adler attempted to steal sixty
    [*22] million dollars from the Nigerian government. Second, the fact that
    the defendants will receive a windfall is not an absolute bar to the unclean
    hands defense. See Wallace v. Opinham, 73 Cal. App. 2d 25, 26, 165 P.2d 709
    (1946) (applying the unclean hands rule in a fraud action in which the
    parties engaged in illegal gambling and the defendant used marked cards).
    Finally, it is not clear that justice would be served by compelling the
    Nigerian government to return the money to Adler. Making a judicial remedy
    available when the bribe fails to accomplish the intended result would
    reduce the risk inherent in paying bribes, and encourage individuals such as
    Adler. In short, public policy favors discouraging frauds such as the one
    perpetrated on Adler, but it also favors discouraging individuals such as
    Adler from voluntarily participating in such schemes and paying bribes to
    bring them to fruition.

    Finally, Adler relies heavily on two cases, neither of which are analogous
    to the case before us. In the first case, R. D. Reeder Lathing Co. v.
    Cypress Ins. Co, 3 Cal. App. 3d 995, 84 Cal. Rptr. 98 (1970), the California
    Court of Appeals held that the plaintiff [*23] could bring an action for
    fraud based on an illegal contract. See id. at 999. That case differs in
    important respects: the plaintiff did not know the underlying contract was
    illegal when he entered into it, and the defendant had far superior
    knowledge about the relevant law. See id. Here, the district court found
    that the deal proposed in Chief Ganna's letter was criminal on its face. The
    second case, Crosstalk Productions, Inc. v. Jacobson, 65 Cal. App. 4th 631
    (1998), involved payments by plaintiffs to safeguard their rights in a legal
    contract. Rejecting the unclean hands defense, the court held that payments
    made by the plaintiffs were the result of economic duress and thus were
    extortionate payments, not bribes. See id. at 640-41. In the instant case,
    the district court specifically found that the Adler knew the contract was
    illegal, and that Adler paid illegal bribes.

    V

    We hold that the district court properly exercised jurisdiction over this
    case; the district court's factual findings are not clearly erroneous; and
    the district court did not abuse its discretion in applying the unclean
    hands defense to bar Adler's recovery. [*24]

    AFFIRMED.





    DISSENTBY: John T. Noonan

    DISSENT: AMENDED DISSENT

    NOONAN, Circuit Judge:

    The majority opinion opens with the declaration. "At the center of this case
    is an illegal contract between plaintiff James Adler and various Nigerian
    individuals including at least one government official, to convert Nigerian
    government funds for their personal use." At the very center of this case,
    therefore, is a contract criminal in nature and purpose, which the majority
    for unexplained reasons contends constitutes commercial activity.

    This case has no place in our courts. It began with a mistaken allegation of
    a fact conferring federal jurisdiction, a mistake that led to an opinion of
    this court properly assuming on a motion to dismiss that the allegation was
    true. On remand to the district court for trial, the mistake was laid bare.
    The factual allegation conferring jurisdiction was not true. Foundation for
    federal jurisdiction disappeared.

    Nonetheless the trial continued because of the plaintiff's contention that
    he had engaged in a criminal conspiracy with officials of the Nigerian
    government. Jurisdiction does not exist on the foundation of this
    contention. A criminal conspiracy in violation [*25] of the laws of
    Nigeria and of the United States does not constitute commercial activity by
    Nigeria. Only commercial activity by Nigeria provides an exception to the
    immunity of this foreign state from the jurisdiction of our courts, 28
    U.S.C. 1605. As no commercial activity was conducted here, no jurisdiction
    exists or existed to try this case, 28 U.S.C. 1330(c).

    The Original Mistake. On July 1, 1996, the plaintiff filed his first amended
    complaint alleging that "the Nigerian National Petroleum Corporation [the
    NNPC], a quasi-governmental agency wholly owned and controlled by the
    Federal Republic of Nigeria, entered into a contract with a foreign
    corporation known as Strabarg & Company, Ltd., a company registered under
    the Nigerian Companies Act, 1968." The complaint went on to state that the
    plaintiff had accepted assignment of proceeds due under this contract to
    computerize oil fields in Kaduna. Nigeria and the Nigerian officials moved
    to dismiss on the grounds of sovereign immunity. On appeal, we said: "The
    district court ruled that Nigeria engaged in commercial activity by entering
    into an agreement for the assignment of [*26] a contract in exchange for
    consideration. We agree." Adler v. The Federal Republic of Nigeria, 107 F.3d
    720, 725 (9th Cir. 1997). The case returned to the district court for trial.

    After trial, the district court found "that no contract existed between
    Adler and the NNPC. Additionally, it is undisputed that no contract existed
    between the NNPC and Strabarg to computerize the oil fields in Kaduna. In
    fact, no oil fields exist in Kaduna. Because no contract existed between the
    NNPC and Strabarg, no assignment of any contract could be made to Adler."

    The commercial activity alleged in the complaint and accepted as commercial
    activity by us was thus found to be a fiction. Not only had no assignment
    been made but no contract to be assigned had existed, and the subject of the
    contract, oil fields to be computerized, did not exist. The facts on which
    jurisdiction had been based were now stamped as wholly bogus.

    The Plaintiff's Criminal Activity. The district court further found after
    trial that "the evidence establishes that Adler intended to aid and abet
    Nigeria officials to pay themselves kickbacks." Adler was asking the court's
    help to recover monies paid by him [*27] "to further criminal activity."
    "From August 1992, until the time that this lawsuit was filed, Adler
    knowingly and intentionally engaged in illegal conduct to obtain money to
    which he and his company were not entitled." Throughout the period in
    question, "Adler engaged in numerous acts of bribery." Even after the law
    suit was filed, "Adler made another $ 50,000 payment to obtain the proceeds
    to which he was not entitled."

    After making these findings, the court concluded:

    The Court finds that Adler violated the Foreign Corrupt Practices Act, 15
    U.S.C. 78dd2 (1997) . . . . Adler traveled in interstate commerce and used
    instrumentalities of interstate commerce to make gifts and payments to
    foreign officials or persons he believed were foreign officials for the
    purpose of influencing their decisions to assist him in obtaining or
    returning business.

    To prove his case, the plaintiff had proved himself to have been a criminal.
    Unashamedly, he had sought the help of a federal court to recover the
    promised share of his criminal endeavors. The district court resisted this
    desperate undertaking.

    Criminal Activity Is Not Commercial Activity. Repulsing [*28] the attempt
    to make a federal court an accessory to crime, the district court
    nonetheless held that it retained jurisdiction because this activity was
    commercial. The opinion on appeal accepts this conclusion. It is a
    conclusion contrary to the controlling statute, to relevant precedent, and
    to common sense.

    The basic fraud, notorious in Nigeria for its practice by skilled confidence
    men, is known to the Nigerian police as a "419", because it is a violation
    of the Criminal Code Act of Nigeria, Chapter 77, 419 (1990). A common kind
    of fraud, it involves no commerce and no activity of the government. To the
    extent, if any, that real governmental officials played a part in this
    "419", they were not only violating the anti-fraud law but various other
    provisions of the criminal code, including 98 (corruption); 103 (false
    claims by officials); 104 (abuse of office); and 422 (conspiracy to
    defraud the public).

    The majority rests its holding of jurisdiction on the letter from Chief Abba
    Ganna (a wholly fictitious person) to Adler offering Adler 40% of $ 130
    million from contracts "fantastically over-invoiced" by unnamed government
    officials. The letter was on the letterhead [*29] of something called
    "Benzil (Nig.) Ltd." and is referred to by the district court as "the Benzil
    letter."

    The majority reasons that the activity was commercial because a contract was
    made between the plaintiff and the persons he supposed were Nigerian
    officials. The majority declares: "A contract for services is plainly
    commercial in nature. The fact that the contract was for an illegal purpose,
    and therefore unenforceable, does nothing to destroy its commercial nature."
    This analysis seems to suppose that any contract for any service is "plainly
    commercial in nature." But when a would-be murderer hires a hit man and
    furnishes his agent money and a gun, neither the consideration he gives nor
    the services he receives are commercial. Adler was not being offered $ 52
    million in exchange for blank letterheads and his signature. He was offered
    this tempting amount for his services in aiding a moneylaundering operation.
    To say he was paid for the documents alone would be like saying the hit man
    was paid for the bullets he used. The services contract was a criminal
    instrument, proposing fraud by Adler to be compensated by criminal profits.

    The majority attempts to distinguish an illegal [*30] contract from "a
    contract with an illegal purpose." This exercise in hairsplitting ignores
    the actual finding of fact by the district court: "The Court finds that, on
    its face, the Benzil letter (Exhibit 1) involves criminal activity and Adler
    participated in that criminal activity." Not only was the purpose of the
    contract found by the district court to be criminal, so was its nature found
    by the district court to be illegal: an attempt by an "obligor under a
    contract to assign the obligee's rights to a third party" and "to convert
    funds belonging to the Nigerian government" to the use of Adler and his
    co-conspirators. It is intrinsically alien to the marketplace to contract to
    defraud a government. The nature of the contract was criminal and therefore
    its nature was not commercial. See Weltover, 504 U.S. at 614. A contract of
    this kind is intrinsically evil or, in the traditional Latin phrase, malum
    in se.

    It is sometimes difficult to distinguish what is intrinsically evil from
    what is wrong because it is prohibited. An example is a monopoly in
    violation of the antitrust laws. Arguably, at least, such a monopoly could
    be seen as merely malum prohibitum and [*31] a sovereign engaging in it as
    conducting commercial activity within the sense of the statute.

    Such ambiguity does not exist where the contract in question is the
    instrument of fraud. No society treats fraud as innocent activity. In this
    case the contract that the court accepts as commercial activity was the
    instrument of fraud. That is not my characterization but the claim with
    which Adler launched this lawsuit: the defendants had defrauded him by
    offering him the contract purportedly signed by Chief Abba Ganna. The
    plaintiff is not free to repudiate his own characterization of the contract.
    He is in the position of contending that the government of Nigeria engaged
    in commercial activity by the practice of fraud, criminal both under the
    laws of Nigeria and the laws of California. Looked at in terms of Adler's
    complaint, this criminal scheme was intrinsically dishonest. Looked at in
    terms of Adler's own promised services pursuant to the contract, Adler
    entered into a criminal enterprise to hide what even the majority concedes
    were "stolen funds." Either way, the central contract involved fraud and
    constituted malum in se.

    After the district court determined that the alleged contract [*32] for
    the computerization for the oil fields did not exist, Adler's one remaining
    claim was for misrepresentation and deceit. Any claim rising out of
    misrepresentation or deceit is expressly barred by 28 U.S.C.
    1605(a)(5)(B).

    Hornbook law is that a contract is illegal if it either has an illegal
    purpose or was based on an illegal consideration. Witkin, Summary of Cal.
    Law (9th ed. 1987) Contracts 441; 6A Corbin on Contracts 1378 (1993).
    The contract with Chief Abba Ganna had an illegal purpose and was based on
    an illegal consideration. The alleged purpose of the contract was to
    moneylaunder cash fraudulently obtained at the expense of the government.
    The consideration offered was a portion of these criminal proceeds. Hornbook
    law maintains that a contract like this contract against good morals is
    malum in se. See Witkin, Summary of Cal. Law (1987) Contracts 441. A
    contract which is malum in se is alien to the market.

    A contract to commit murder does not become commercial activity because the
    hit man contracts with a payor for his services. See Letelier v. Republic of
    Chile, 748 F.2d 790, 797 (2d Cir. 1984). [*33] An agreement as to the
    ransom between kidnappers and the parents of a kidnapped child does not
    become commercial activity because a contract for services is thereby
    entered into by the kidnappers. See Cicippio v. Islamic Republic of Iran,
    308 U.S. App. D.C. 102, 30 F.3d 164, 168 (D.C. Cir. 1994). A contract to
    evade the laws of Nigeria by furnishing false documents to deceive the
    government of Nigeria does not become commercial activity because there is a
    contract for the criminal services of the agent of the fraud; a fortiori, no
    commercial activity exists when the payment for the services is to be
    criminally-acquired and criminally-transported loot.

    In the decided cases, the victim of a kidnapping could not sue in federal
    court the nation arranging the kidnapping because the kidnapping is not
    commercial activity; the victim of a murder plot could not sue federally the
    nation contracting for the murder, because murder is not commercial
    activity. We have discovered no case where the criminal himself had the
    effrontery to sue alleged accomplices asserting that the crimes in which he
    had participated were commercial activity.

    It is an insult to every honest trader [*34] or businessman to suppose
    that a cunning criminal scheme, if initiated by a contract, is commercial
    activity.

    It is an insult to any foreign country, and in this instance to Nigeria, to
    maintain that a contract proposing a fraud on the government of Nigeria is
    commercial activity being carried on by the government. The government is
    not in business to defraud itself. Corruption is not commerce.

    The opinion quotes from Republic of Argentina v. Weltover, 504 U.S. 607,
    614, 119 L. Ed. 2d 394, 112 S. Ct. 2160 (1992): "when a foreign government
    acts, not as a regulator of a market, but in a manner of a private player
    within it, the foreign sovereign's actions are 'commercial' within the
    meaning of the FSIA." The opinion then declares: "The agreement to convert
    Nigerian government funds satisfies the Weltover definition of commercial
    activity" - as if a government scheming to defraud itself was acting "in the
    manner of a private player!" When the Supreme Court contrasted private
    players with regulators it did not sweep all racketeers under the role of
    private players; the distinction drawn was merely between government as
    regulator and government as manger of its own [*35] finances. The Supreme
    Court reiterated that to have jurisdiction the acts must be "the type of
    actions by which a private party engages in 'trade and traffic or
    commerce'." Id.

    The opinion takes out of context a dictum in Justice White's concurrence in
    Nelson, 507 U.S. at 369. Justice White opined hypothetically that
    governmental thugs performing torture in connection with the commercial
    operation of a hospital could make the government liable; it was the
    connection with the Saudi government's commercial activity that brought the
    commercial exception into play. See Cicippio, 30 F.3d at 168. There is
    nothing in the opinion of the court in Nelson that justifies the majority
    here in stretching for a dictum from a hypothetical in a concurrence.

    The definition of a criminal conspiracy is an agreement to violate a law.
    Every conspiracy depends on this kind of contract. That a contract is made
    is evidence not of commercial dealing but of crime. Congress cannot have
    meant to make conspiracy a type of commerce for foreign governments to
    engage in.

    The Contract Was Void. A corollary of the criminal nature of the contract is
    that it was void in [*36] California where the offer was accepted. Smith
    v. Bach, 183 Cal. 259, 262, 191 P. 14 (1920); R.M. Sherman Co. v. W.R.
    Thomason, Inc., 191 Cal. App. 3d 559, 563, 236 Cal. Rptr. 577 (1987);
    Witkin, Summary of Cal. Law (9th ed. 1987) Contracts 441. A void contract
    cannot be sued upon. It is a nullity. A nullity cannot qualify under the
    FSIA requirement of "a regular course of commercial conduct or a particular
    commercial transaction or act." 28 U.S.C. 1603(d). Engaging in an act that
    is legally nothing is not engaging in commerce. For this reason, too, no
    federal jurisdiction exists.

    As no commercial activity was engaged in by Nigeria, there is no occasion to
    consider the statutory phrase "in connection with commercial activity."
    Before that phrase can kick in, some commercial activity must be identified.
    Here there is only fraud and conspiracy and bribery from the plaintiff's
    first involvement up to and after this lawsuit was filed in federal court.

    Two further peculiarities of the majority opinion may be observed. First, it
    finds "the direct effect in the United States caused by the defendants'
    acts" to be Adler's [*37] payment of bribes. No such finding was made by
    the district court. No such point was made by Adler in his briefs or in his
    oral argument on appeal. No doubt there is a reason that Adler did not
    advance this argument: it underscored his criminal conduct and his audacity
    in asking a federal court to help him recover payments made in defiance of
    federal law. It is also far from clear how the original contract with Chief
    Abba Ganna, if taken seriously as a business transaction, implied that Adler
    would bribe anyone: he was merely being asked to assist in the production of
    forgeries and falsified documentation.

    Second, the test offered by the majority for pronouncing activity to be
    commercial is entirely novel and without foundation in any precedent: that
    the act of a sovereign is commercial if it is what "every private party does
    in the open market." The implication is that only what is ":uniquely
    sovereign" is immune. This test is not in the statute. The test has been
    explicitly rejected by the Supreme Court: "the question is not whether the
    foreign government is acting . . . with the aim of fulfilling uniquely
    sovereign objectives." Republic of Argentina v. Weltover, 504 U.S. at 614.
    [*38] It is a gloss that substitutes a wholly different term for the
    statutory "commercial activity."

    Conclusion. In summary, the contract at the center of the crux is a contract
    made with a fictitious person, Chief Abba Ganna, never shown to have been an
    official of the Nigerian government and indeed never shown to have existed.
    The contract was criminal in nature and criminal in purpose. It was void
    under California law. On this fragile foundation the majority has found
    jurisdiction over a sovereign state presumptively immune from suit in our
    courts.

    The district court threw out the plaintiff's case because of his unclean
    hands. This court is ready to affirm this result. But a further cleansing of
    the courthouse is needed. If the truth had been known, we had no
    jurisdiction on the first appeal. As the truth has come out at trial, we
    have no jurisdiction now, nor had the district court. This disgraceful
    effort by the plaintiff to make us parties to a criminal conspiracy should
    never have darkened our doors. It is time to expunge it wholly.

    <end>


  • #2
    Adler v. Nigeria (419 fraud claim; unclean hands)

    I am ecstatic.

    My respect for the American Judicial system is now more profound.
    --
    Team EuroMeko
    ---------------------------------------------
    http://blackie.bounceme.net

    "Tam" <[email protected]> wrote in message
    news:BC52C826.B229%[email protected]
    Same case on appeal, affirming decision below: JAMES E. ADLER, aka Jaime Adler; EL SURTIDOR DEL HOGAR, S.A. DE C.V., a Mexican Corporation, Plaintiffs-Appellees- Cross-Appellants, v. THE
    FEDERAL
    REPUBLIC OF NIGERIA, a Sovereign State; CENTRAL BANK OF NIGERIA; PAUL OGWUMA, aka Paul Oguma; NIGERIAN NATIONAL PETROLEUM CORPORATION, Defendants-Appellants- Cross-Appellees, and CHIEF ABBA GANNA HEN GEORGE;
    C.
    ODIBO, BALLA PETERS; STANLEY EKE; SOLOMON DANIELS; CLEMENT VICTOR ODOZI, CHIEF JOHN OLISA A. AHMED; MAJOR USMAN DAVID PASCAL UZO; UKPO AKPAN; CHIKE OKONKWO; ALHAJI JUBRIL ABDULLAHI; ANDREW AYOMANU; EDMUND ODAFE; MALLAM ABUBAKAR; A. AHMED; PASCAL UZO, Defendants-Cross-Appellees. No. 98-55456, 98-55460 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 219 F.3d 869;2000 U.S. App. LEXIS 10702;2000 Cal. Daily Op. Service 3847;2000 Daily Journal DAR 5165 November 2, 1999, Argued and Submitted, Pasadena, California May 17, 2000, Filed SUBSEQUENT HISTORY: [*1] As Amended on Denial of Rehearing and Rehearing En Banc August 17, 2000, Reported at: 2000 U.S. App. LEXIS 20687. PRIOR HISTORY: Appeal from the United States District Court for the Southern District of California. D.C. No. CV-94-00779-IEG. Irma E.
    Gonzalez,
    District Judge, Presiding. 1998 U.S. Dist. LEXIS 23419
    <http://groups.google.com/groups?selm=BC510EC4.A124%25tamsuraiya%40yahoo.ca>
    DISPOSITION: AFFIRMED. COUNSEL: Richard E. McCarthy, Solomon, Ward, Seidenwurm & Smith, San Diego, California, for the plaintiffs-appellees-cross-appellants. David H. Fromm, Chalos & Brown, New York, New York, attorneys for the defendants-appellants-cross-appellees. JUDGES: Before: Harry Pregerson, John T. Noonan, and Diarmuid F. O'Scannlain, Circuit Judges. Opinion by Judge Pregerson; Dissent by Judge Noonan. OPINIONBY: Harry Pregerson OPINION: AMENDED OPINION PREGERSON, Circuit Judge: At the center of this case is an illegal contract between plaintiff James Adler and various Nigerian individuals, including at least one government official, to convert Nigerian government funds for their personal use. The individual Nigerian defendants proposed the agreement to Adler, but did
    not
    perform their side of the bargain. Adler did perform, and now seeks to recover over five million dollars he paid to further the illegal contract and to bribe Nigerian government officials. The issue before this court is whether this criminal activity falls within the [*2] "commercial
    activity"
    exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C.
    1330
    et seq. The district court held that the defendants were not immune from suit, but applied the unclean hands doctrine to bar Adler from recovering. Defendants appeal and plaintiffs cross-appeal. We have jurisdiction under
    28
    U.S.C. 1291, and we affirm. We hold that an illegal contract constitutes commercial activity under the FSIA. We also affirm the district court's factual findings, and its application of the clean hands defense to bar Adler's recovery. I Plaintiffs in this case are James E. Adler and El Surtidor del Hogar, S.A. de C.V. ("El Surtidor"). Adler is a United States citizen who resides in California and is president and controlling shareholder of El Surtidor. El Surtidor is a Mexican corporation with its principal place of business in Tijuana, Mexico. Defendants are the Federal Republic of Nigeria, the
    Central
    Bank of Nigeria ("CBN"), and seventeen Nigerian officials. The events in this case began in August 1992 when Adler received a letter signed by Chief Abba Ganna. The letter proposed a "business transaction" between [*3] Adler, Ganna and the Chief Accountant of the Nigerian National Petroleum Corporation ("NNPC"). Ganna explained the transaction
    as
    follows: During the last civilian regime here in Nigeria, the elected members of
    the
    ruling party used their positions and formulated companies and awarded themselves contracts which were fantastically over-invoiced in various government ministries. On the overthrow of the regime by the present military government, an enquiry was set to this. Findings and recommendations were made to the government who has given its blessing for the payment of these contracts half/fully executed. You can now see that there is a good deal for these government officials presently in office hence the ousted notable party stalwarts can not come forward for some of the claims. Ganna requested that Adler send (1) four signed and stamped copies of El Surtidor letterhead and pro forma invoices; and (2) the number to a
    foreign
    bank account where 130 million dollars could be deposited. In addition, Adler would be responsible for purchasing first-class airplane tickets for Nigerian officials to travel to Mexico to collect their share of the
    money.
    In exchange for [*4] providing these services, Adler would earn a forty percent commission. The remaining sixty percent of the stolen funds would
    be
    divided between "miscellaneous expenses" (ten percent) and "the government officials" (fifty percent). As requested, Adler sent the letterhead, invoices, and the number of a bank account in the Grand Cayman Islands. In September 1992, Adler traveled to Nigeria and was permitted to enter
    the
    country with a document from the Federal Ministry of Internal Affairs in lieu of a visa. He visited the home of the Minister of Finance and an
    office
    of the CBN where he met with various individuals who identified themselves as Nigerian government officials. Among these "officials" was John Olisa, Deputy Governor of the CBN. Olisa showed Adler a bank draft for sixty million dollars made out to El Surtidor and Jaime Adler, and presented
    Adler
    with a contract which Adler signed without reading. Olisa told Adler that
    he
    would give him a copy of the contract after Adler deposited funds to cover the difference in the exchange rate between the U.S. dollar and the
    Nigerian
    nira ("shortfall deposit funds"). Adler was led to believe that the
    Nigerian
    government had assigned to [*5] El Surtidor rights under a contract between the NNPC and Strabarg Company, another foreign company, for the computerization of Nigerian oil fields. Beginning with Olisa's request for the shortfall deposit funds,
    individuals,
    whom Adler believed to be officials of the Nigerian government, repeatedly requested payments from Adler. They described these payments variously as shortfall deposit funds, taxes, processing fees, confirmation fees, surcharges, legal fees, travel expenses, and gratification. Almost every time that someone requested a payment from Adler, that individual told
    Adler
    that as soon as he made that payment, the sixty million dollars would be deposited into his account. Adler continued making payments to Nigerian officials even after he filed this lawsuit. These payments totaled $ 5,180,000. In May 1993, Adler hired a Nigerian lawyer to prepare an affidavit
    declaring
    that El Surtidor and Strabarg were sister companies. Adler was told that
    it
    was necessary to submit the false affidavit to a Nigerian court in order
    to
    obtain the promised funds. Between August 1992 and July 1994, Adler corresponded, by mail and by telephone, with a variety of individuals who represented [*6] themselves as officials of the Nigerian government. In addition, Adler made two more trips to Nigeria prior to filing this lawsuit. In December 1992, he
    visited
    Olisa's residence. On the April 1994 trip, Adler met with Paul Ogwuma, Governor of the CBN. In November 1993, Adler borrowed $ 450,000 from Banca Serafin to pay a
    stamp
    duty tax. As a condition of the loan, Banca Serafin conducted due
    diligence
    and required Adler to change the routing instructions for the sixty
    million
    dollars from his Grand Cayman Islands' bank account to Banca Serafin's New York bank account. On Adler's authorization, a Banca Serafin official directed Dr. Clement Odozi, another Deputy Governor of the CBN, to send
    the
    sixty million dollars to New York. In February 1994, Adler hired former Congressmen Mervyn Dymally and Jim Bates to assist him in collecting the sixty million dollars. Dymally traveled to Nigeria, investigated the situation, and reported to Adler
    that
    the agreement was a "scam." Even after receiving this report, Adler continued to make payments requested by the Nigerian officials. In May 1994, Adler filed this suit in district court, naming as defendants the Federal Republic of Nigeria, the [*7] CBN, the NNPC, n1 and
    seventeen
    Nigerian officials. n2 Adler alleged claims for fraud, conspiracy to
    commit
    fraud, and negligence, among others. Defendants moved to dismiss on the basis of the FSIA, but the district court denied their motion. This court affirmed, holding that the commercial activity exception to the FSIA
    applied
    because the contract between the NNPC and Strabarg, along with the assignment to El Surtidor, constituted commercial activity, and that Nigeria's contractual obligation to make payment to Adler in New York was
    a
    direct effect in the United States. See Adler v. Federal Republic of Nigeria, 107 F.3d 720 (9th Cir. 1997). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
    -
    - - n1 The district court dismissed the NNPC after plaintiffs rested their
    case.
    n2 Of the seventeen named officials, only Paul Ogwuma, Governor of the
    CBN,
    was served and answered the complaint. - - - - - - - - - - - - - - - - -End
    Footnotes- - - - - - - - - - - - - - -
    - - The case proceeded to trial. After an eight day bench trial, the district court found, among other things, that (1) no contract existed between the NNPC and Strabarg [*8] and therefore, the NNPC could not have assigned Strabarg's rights to El Surtidor; (2) the Ganna letter involved criminal activity on its face and Adler knowingly and intentionally participated in that activity; (3) Adler believed that he was dealing with Nigerian government officials and that the scheme was sanctioned by the Nigerian government; (4) Adler paid bribes totaling 2.11 million dollars to
    Nigerian
    officials in violation of California bribery law, Cal. Penal Code 7(6), and the Foreign Corrupt Practices Act, 15 U.S.C. 78dd2; (5) Adler,
    through
    Banca Serafin, instructed the Nigerian officials to deposit the funds in
    New
    York; (6) at least one official of the Nigerian government, CBN Governor Paul Ogwuma, participated as a co-conspirator in the fraud against Adler; and (7) the Nigerian government permitted other co-conspirators to use the CBN offices to further the fraud. On these facts, the district court
    decided
    that the unclean hands doctrine barred Adler from recovering the money he paid to Nigerian government officials. n3 The district court also
    revisited
    the sovereign immunity question and reaffirmed that the commercial
    activity
    exception [*9] applied. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
    -
    - - n3 The district court made factual findings pertaining to the defendants' acts of fraud, but apparently did not decide whether the defendants
    actually
    committed any of the torts alleged. - - - - - - - - - - - - - - - - -End
    Footnotes- - - - - - - - - - - - - - -
    - - II We begin with the question of jurisdiction which is a question of law that we review de novo. See In re estate of Ferdinand Marcos Human Rights Litigation, 94 F.3d 539, 543 (9th Cir. 1996). The FSIA "provides the sole basis for obtaining jurisdiction over a foreign state in the courts of
    this
    country." Argentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428, 443, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989). Under the FSIA, a foreign state is presumptively immune from suit in federal court unless one of the exceptions to the statute applies. See 28 U.S.C. 1604. There is no
    dispute
    here that the Federal Republic of Nigeria, the CBN, and Ogwuma fall within the FSIA's definition of a foreign state. See 28 U.S.C. 1603(a) ("A
    [*10]
    'foreign state' . . . includes . . . an agency or instrumentality of a foreign state."); Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095,
    1106-06
    (9th Cir. 1990) (holding that government officials fall within the definition of an "agency or instrumentality" of a foreign state). The only issue in dispute is whether the FSIA's commercial activity exception
    applies
    to the facts of this case. n4 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
    -
    - - n4 Our decision in Adler is not law of the case because that decision was issued before the district court found that the Strabarg contract and assignment were fictitious. - - - - - - - - - - - - - - - - -End
    Footnotes- - - - - - - - - - - - - - -
    - - The commercial activity exception to the FSIA denies foreign states
    immunity
    from suit in three circumstances: A foreign state shall not be immune from the jurisdiction of courts of the United States . . . in any case . . . in which the action is based [1]
    upon
    a commercial activity carried on in the United States by the foreign
    state;
    or [2] upon an act performed in the United States in connection with a commercial activity [*11] of the foreign state elsewhere; or [3] upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. 28 U.S.C. 1605(a)(2) (emphasis added). The third clause is at issue here because this suit is based on the defendants' acts of fraud, conspiracy,
    and
    negligence which occurred outside of the United States. Defendants contend that the FSIA's commercial activity exception does not apply because (1) their acts were not "in connection with a commercial activity"; and (2) their acts did not have a direct effect in the United States. n5 We disagree. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
    -
    - - n5 An additional requirement for the commercial activity exception to
    apply
    was set out in Phaneuf v. Rep. of Indonesia, 106 F.3d 302 (9th Cir. 1997). In Phaneuf, we held that a agent must act with actual authority in order
    to
    bind a sovereign under the commercial activity exception. Id. at 308. Neither party contends that Phaneuf is applicable to this case. Indeed,
    the
    thrust of defendants' argument is that the district court erred in finding that Ogwuma participated in the fraud, not that Ogwuma did so without authorization from the government. In any event, Phaneuf's rule does not defeat federal jurisdiction over
    this
    case. The district court found, not only that Ogwuma, Governor of the CBN, participated as a co-conspirator in the fraud, but also that the Nigerian government permitted other conspirators to use the CBN offices to further the fraud. "Once the plaintiff offers evidence that an FSIA exception to immunity applies, the party claiming immunity bears the burden of proving
    by
    a preponderance of the evidence that the exception does not apply." Joseph v. Office of Consulate General of Nigeria, 830 F.2d 1018, 1021 (9th Cir. 1987). Defendants have not sustained their burden of proving that Ogwuma
    and
    others acted without actual authority. - - - - - - - - - - - - - - - - -End
    Footnotes- - - - - - - - - - - - - - -
    - - [*12] A The FSIA defines "commercial activity" as "a regular course of commercial conduct or a particular commercial transaction or act." 28 U.S.C.
    1603(e).
    It also instructs that "the commercial character of an activity shall be determined by reference to the nature of the course of conduct or
    particular
    transaction or act, rather than by reference to its purpose." Id. The agreement between Adler and the Nigerian officials was a commercial transaction. The Nigerian officials contracted for Adler's services: they offered Adler a commission if he would provide them with stamped
    letterhead,
    invoices and a bank account to which they could transfer money. Adler accepted their offer. A contract for services is plainly commercial in nature. The fact that the contract was for an illegal purpose, and
    therefore
    was unenforceable, does nothing to destroy its commercial nature. See
    Saudi
    Arabia v. Nelson, 507 U.S. 349, 366, 123 L. Ed. 2d 47, 113 S. Ct. 1471 (1993) (White, J., concurring) (stating that torture of plaintiff by
    police
    was not commercial activity, but torture of plaintiff by government hired thugs would be commercial activity); Braka v. Multibanco Comermex, S.A.,
    589
    F. Supp. 802, 805 (S.D.N.Y. 1984) [*13] (holding that the sale of unregistered securities is commercial activity under the FSIA). n6 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
    -
    - - n6 The dissent disagrees with our characterization of the agreement
    between
    Adler and the Nigerian officials as a contract for services, and contends that an agreement that is illegal either in nature or in purpose is not a commercial agreement. Neither the plain meaning of the term commercial,
    nor
    the sources cited by the dissent provide support for that proposition. See Black's Law Dictionary 263 (7th ed. 1999) (defining "commerce" as "the exchange of goods and services, esp. on a large scale involving transportation between cities, states, and nations"). - - - - - - - - - - - - - - - - -End
    Footnotes- - - - - - - - - - - - - - -
    - - Not all criminal activity falls within the FSIA's commercial activity exception. That proposition is well-established by decisions of this court and others. See Berkovitz v. Islamic Republic of Iran, 735 F.2d 329, 331 (9th Cir. 1983) (finding that murder is not commercial in nature); see
    also
    MCI Telecommunications Corp. v. Alhadhood, 82 F.3d 658, 664 (5th Cir.
    1996)
    [*14] (finding that making unauthorized telephone calls is not commercial activity); Cicippio v. Islamic Republic of Iran, 308 U.S. App. D.C. 102,
    30
    F.3d 164, 167-68 (D.C. Cir. 1994) (holding that kidnaping is not
    commercial
    activity); Letelier v. Republic of Chile, 748 F.2d 790, 797 (2d 1984) (holding that assassination is not commercial activity). Our decision
    today
    does not conflict with that case law. Each of those cases involved illegal activity devoid of any commercial component. What this case involves, and what drives our decision in this case, is the district court's finding
    that
    Adler and the Nigerian officials made a contract for illegal activity. n7 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
    -
    - - n7 Defendants attempt to obfuscate the issue by repeatedly declaring that the district court found that no contract existed. The district court
    found
    that there was no contract between the NNPC and Strabarg, but it also
    found
    that there was an illegal contract between Adler and the government officials to convert government funds. - - - - - - - - - - - - - - - - -End
    Footnotes- - - - - - - - - - - - - - -
    - - [*15] The Supreme Court's decision Republic of Argentina v. Weltover, 504 U.S. 607, 612, 119 L. Ed. 2d 394, 112 S. Ct. 2160 (1992), also supports our conclusion that an illegal contract is commercial activity. That case involved the question whether the Argentine government acted "in
    connection
    with commercial activity" when it refinanced bonds in order to stabilize
    the
    national currency. The Court held that "when a foreign government acts,
    not
    as a regulator of a market, but in the manner of a private player within
    it,
    the foreign sovereign's actions are 'commercial' within the meaning of the FSIA." Id. at 614. It further explained that "the question is not whether the foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the particular actions that the foreign state performs (whatever
    the
    motive behind them) are the type of actions by which a private party
    engages
    in 'trade and traffic or commerce.'" Id. (quoting Black's Law Dictionary
    270
    (6th ed. 1990)). The agreement to convert Nigerian government funds satisfies the Weltover definition of commercial [*16] activity. When the Nigerian officials offered Adler a cash commission for participating in an enterprise for mutual advantage, they did essentially what every private party does in
    the
    open market (notwithstanding the fact that their precise undertakings were illegal). B Having concluded that this suit is based on acts "in connection with a commercial activity," we turn to the second question: whether the defendants' acts caused a direct effect in the United States. "An effect
    is
    'direct' if it follows as an immediate consequence of the defendant's activity." Weltover, 504 U.S. at 618 (internal quotation marks omitted).
    In
    adopting the "immediate consequences" rule, the Supreme Court rejected the more onerous "substantial and foreseeable" test employed by many circuits. See id. Following Weltover, this court reaffirmed the rule that a direct effect requires that "'legally significant acts giving rise to the claim occurred'" in the United States. Adler, 107 F.3d at 727 (quoting United World Trade v. Mangyshlakneft Oil Production ***'n, 33 F.3d 1232, 1239
    (10th
    Cir. 1994)). We have little trouble identifying a [*17] direct effect in the United States caused by the defendants' acts. Adler used the United States mails and telephones to commit bribery in violation of the FCPA as an "immediate consequence" of the defendants' acts. The defendants asked Adler for bribe payments, and persuaded Adler to pay them by telling him that sixty
    million
    dollars would be deposited in his bank account if he did so. Therefore, Adler's payment of bribes was an immediate consequence of the defendants' fraudulent acts. Adler's acts of bribery are legally significant with respect to the tort claims because Adler seeks to recover the money he
    paid
    in bribes. n8 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
    -
    - - n8 The district court identified two other effects in the United States:
    (1)
    Adler instructed the CBN to deposit the funds in a New York bank account; and (2) Adler hired former United States congressmen to investigate the Nigerian scheme. Because we find that Adler's violation of the FCPA satisfies the "direct effect" prong, we do not decide whether the second
    and
    third effects identified by the district court are also direct effects. - - - - - - - - - - - - - - - - -End
    Footnotes- - - - - - - - - - - - - - -
    - - [*18] III On appeal, defendants ask us to reverse several of the district court's factual findings. Specifically, defendants challenge the following
    findings
    of fact: (1) Adler met CBN Governor Paul Ogwuma and Ogwuma was a co-conspirator in the conspiracy to defraud Adler; (2) Ogwuma sent Adler letters requesting payments; (3) Adler paid Ogwuma $ 50,000; (4) Adler met the Nigerian Minister of Finance at the Minister's home; (5) Adler met
    John
    Olisa and Olisa is a Deputy Governor of the CBN; (6) Adler received a Revenue Collector's Receipt showing payment of $ 300,000; (7) the Nigerian government required a shortfall payment of $ 570,000; (8) Adler paid
    various
    fees and taxes to the Nigerian government; (9) Brigadier Ball Peters was Unit Commander for the Presidential Task Force on Trade Malpractices of
    CBN;
    and (10) Dr. Clement Odozi was the Deputy Governor of the CBN. We review a district court's factual findings for clear error. See Fed. R. Civ. P. 52(a); Adler, 107 F.3d at 729. "We accept the lower court's
    findings
    of fact unless upon review we are left with the definite and firm
    conviction
    that a mistake has been committed." United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998) [*19] (en banc). We may not reject the district court's "account of the evidence [if it] is plausible in light of the
    record
    viewed in its entirety." Id. Here, the district court's factual findings present a plausible account of the evidence, and therefore defendants' challenge fails to satisfy the clear error standard. IV On cross-appeal, Adler argues that the district court erred in applying
    the
    unclean hands doctrine. The unclean hands doctrine "closes the doors of a court of equity to one tainted with inequitableness or bad faith relative
    to
    the matter in which he seeks relief, however improper may have been the behavior of the defendant." Precision Inst. Mfg. Co. v. Automotive Maintenance Machine Co., 324 U.S. 806, 814, 89 L. Ed. 1381, 65 S. Ct. 993 (1945). Under this doctrine, plaintiffs seeking equitable relief must have "acted fairly and without fraud or deceit as to the controversy in issue." Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1097 (9th Cir. 1985) (citing Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 387, 88 L. Ed. 814, 64 S. Ct. 622 (1944); Keystone Driller Co. v. General Excavator Co., 290 U.S.
    240,
    245, 78 L. Ed. 293, 54 S. Ct. 146 (1933)). [*20] The district court decided that Adler dirtied his hands by intentionally attempting to aid
    and
    abet the Nigerian officials' scheme to steal from the government treasury and by paying bribes. Under California law, we review the district courts decision to apply the unclean hands doctrine for an abuse of discretion. See Health Maintenance Network v. Blue Cross of Southern California, 202 Cal. App. 3d 1043, 249 Cal. Rptr. 220 (1988). A district court "abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Cooter & Gell v. Hartmarx Corp., 496 U.S.
    384,
    405, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990); see also United States v. Washington, 98 F.3d 1159, 1162 (9th Cir. 1996). In deciding whether Adler's unclean hands barred relief, the district
    court
    applied the correct legal standard. In California, the unclean hands doctrine applies not only to equitable claims, but also to legal ones. See Jacobs v. Universal Development Corp., 53 Cal. App. 4th 692, 699 (1997).
    The
    court examined, as California law requires, the nature of the misconduct
    at
    issue [*21] and the misconduct's equitable impact on the relationship between the parties and the injuries claimed. See Unilogic v. Burroughs,
    10
    Cal. App. 4th 612, 619-20 (1992) (citing Blain v. Doctor's Co., 222 Cal. App. 3d 1048, 1060, 272 Cal. Rptr. 250 (1990)). Nevertheless, Adler puts forth a variety of arguments in an attempt to persuade this court that inequity results from the district court's
    exercise
    of discretion. He asserts that he and the Nigerian officials are not
    equally
    at fault; that the Nigerian officials will be unjustly enriched if they do not return the funds to Adler; and that this court should grant Adler a remedy because, by doing so, it will discourage Nigerian officials from perpetrating such schemes in the future. Whatever the merits of these arguments, the district court did not abuse its discretion in reaching the opposite conclusion. First, it is not clear that Adler is any less blameworthy than the
    Nigerian
    officials. The Nigerian officials proposed the criminal scheme, but Adler voluntarily participated it. And while the Nigerian officials successfully defrauded Adler of over five million dollars, Adler attempted to steal
    sixty
    [*22] million dollars from the Nigerian government. Second, the fact that the defendants will receive a windfall is not an absolute bar to the
    unclean
    hands defense. See Wallace v. Opinham, 73 Cal. App. 2d 25, 26, 165 P.2d
    709
    (1946) (applying the unclean hands rule in a fraud action in which the parties engaged in illegal gambling and the defendant used marked cards). Finally, it is not clear that justice would be served by compelling the Nigerian government to return the money to Adler. Making a judicial remedy available when the bribe fails to accomplish the intended result would reduce the risk inherent in paying bribes, and encourage individuals such
    as
    Adler. In short, public policy favors discouraging frauds such as the one perpetrated on Adler, but it also favors discouraging individuals such as Adler from voluntarily participating in such schemes and paying bribes to bring them to fruition. Finally, Adler relies heavily on two cases, neither of which are analogous to the case before us. In the first case, R. D. Reeder Lathing Co. v. Cypress Ins. Co, 3 Cal. App. 3d 995, 84 Cal. Rptr. 98 (1970), the
    California
    Court of Appeals held that the plaintiff [*23] could bring an action for fraud based on an illegal contract. See id. at 999. That case differs in important respects: the plaintiff did not know the underlying contract was illegal when he entered into it, and the defendant had far superior knowledge about the relevant law. See id. Here, the district court found that the deal proposed in Chief Ganna's letter was criminal on its face.
    The
    second case, Crosstalk Productions, Inc. v. Jacobson, 65 Cal. App. 4th 631 (1998), involved payments by plaintiffs to safeguard their rights in a
    legal
    contract. Rejecting the unclean hands defense, the court held that
    payments
    made by the plaintiffs were the result of economic duress and thus were extortionate payments, not bribes. See id. at 640-41. In the instant case, the district court specifically found that the Adler knew the contract was illegal, and that Adler paid illegal bribes. V We hold that the district court properly exercised jurisdiction over this case; the district court's factual findings are not clearly erroneous; and the district court did not abuse its discretion in applying the unclean hands defense to bar Adler's recovery. [*24] AFFIRMED. DISSENTBY: John T. Noonan DISSENT: AMENDED DISSENT NOONAN, Circuit Judge: The majority opinion opens with the declaration. "At the center of this
    case
    is an illegal contract between plaintiff James Adler and various Nigerian individuals including at least one government official, to convert
    Nigerian
    government funds for their personal use." At the very center of this case, therefore, is a contract criminal in nature and purpose, which the
    majority
    for unexplained reasons contends constitutes commercial activity. This case has no place in our courts. It began with a mistaken allegation
    of
    a fact conferring federal jurisdiction, a mistake that led to an opinion
    of
    this court properly assuming on a motion to dismiss that the allegation
    was
    true. On remand to the district court for trial, the mistake was laid
    bare.
    The factual allegation conferring jurisdiction was not true. Foundation
    for
    federal jurisdiction disappeared. Nonetheless the trial continued because of the plaintiff's contention that he had engaged in a criminal conspiracy with officials of the Nigerian government. Jurisdiction does not exist on the foundation of this contention. A criminal conspiracy in violation [*25] of the laws of Nigeria and of the United States does not constitute commercial activity
    by
    Nigeria. Only commercial activity by Nigeria provides an exception to the immunity of this foreign state from the jurisdiction of our courts, 28 U.S.C. 1605. As no commercial activity was conducted here, no
    jurisdiction
    exists or existed to try this case, 28 U.S.C. 1330(c). The Original Mistake. On July 1, 1996, the plaintiff filed his first
    amended
    complaint alleging that "the Nigerian National Petroleum Corporation [the NNPC], a quasi-governmental agency wholly owned and controlled by the Federal Republic of Nigeria, entered into a contract with a foreign corporation known as Strabarg & Company, Ltd., a company registered under the Nigerian Companies Act, 1968." The complaint went on to state that the plaintiff had accepted assignment of proceeds due under this contract to computerize oil fields in Kaduna. Nigeria and the Nigerian officials moved to dismiss on the grounds of sovereign immunity. On appeal, we said: "The district court ruled that Nigeria engaged in commercial activity by
    entering
    into an agreement for the assignment of [*26] a contract in exchange for consideration. We agree." Adler v. The Federal Republic of Nigeria, 107
    F.3d
    720, 725 (9th Cir. 1997). The case returned to the district court for
    trial.
    After trial, the district court found "that no contract existed between Adler and the NNPC. Additionally, it is undisputed that no contract
    existed
    between the NNPC and Strabarg to computerize the oil fields in Kaduna. In fact, no oil fields exist in Kaduna. Because no contract existed between
    the
    NNPC and Strabarg, no assignment of any contract could be made to Adler." The commercial activity alleged in the complaint and accepted as
    commercial
    activity by us was thus found to be a fiction. Not only had no assignment been made but no contract to be assigned had existed, and the subject of
    the
    contract, oil fields to be computerized, did not exist. The facts on which jurisdiction had been based were now stamped as wholly bogus. The Plaintiff's Criminal Activity. The district court further found after trial that "the evidence establishes that Adler intended to aid and abet Nigeria officials to pay themselves kickbacks." Adler was asking the
    court's
    help to recover monies paid by him [*27] "to further criminal activity." "From August 1992, until the time that this lawsuit was filed, Adler knowingly and intentionally engaged in illegal conduct to obtain money to which he and his company were not entitled." Throughout the period in question, "Adler engaged in numerous acts of bribery." Even after the law suit was filed, "Adler made another $ 50,000 payment to obtain the
    proceeds
    to which he was not entitled." After making these findings, the court concluded: The Court finds that Adler violated the Foreign Corrupt Practices Act, 15 U.S.C. 78dd2 (1997) . . . . Adler traveled in interstate commerce and
    used
    instrumentalities of interstate commerce to make gifts and payments to foreign officials or persons he believed were foreign officials for the purpose of influencing their decisions to assist him in obtaining or returning business. To prove his case, the plaintiff had proved himself to have been a
    criminal.
    Unashamedly, he had sought the help of a federal court to recover the promised share of his criminal endeavors. The district court resisted this desperate undertaking. Criminal Activity Is Not Commercial Activity. Repulsing [*28] the
    attempt
    to make a federal court an accessory to crime, the district court nonetheless held that it retained jurisdiction because this activity was commercial. The opinion on appeal accepts this conclusion. It is a conclusion contrary to the controlling statute, to relevant precedent, and to common sense. The basic fraud, notorious in Nigeria for its practice by skilled
    confidence
    men, is known to the Nigerian police as a "419", because it is a violation of the Criminal Code Act of Nigeria, Chapter 77, 419 (1990). A common
    kind
    of fraud, it involves no commerce and no activity of the government. To
    the
    extent, if any, that real governmental officials played a part in this "419", they were not only violating the anti-fraud law but various other provisions of the criminal code, including 98 (corruption); 103 (false claims by officials); 104 (abuse of office); and 422 (conspiracy to defraud the public). The majority rests its holding of jurisdiction on the letter from Chief
    Abba
    Ganna (a wholly fictitious person) to Adler offering Adler 40% of $ 130 million from contracts "fantastically over-invoiced" by unnamed government officials. The letter was on the letterhead [*29] of something called "Benzil (Nig.) Ltd." and is referred to by the district court as "the
    Benzil
    letter." The majority reasons that the activity was commercial because a contract
    was
    made between the plaintiff and the persons he supposed were Nigerian officials. The majority declares: "A contract for services is plainly commercial in nature. The fact that the contract was for an illegal
    purpose,
    and therefore unenforceable, does nothing to destroy its commercial
    nature."
    This analysis seems to suppose that any contract for any service is
    "plainly
    commercial in nature." But when a would-be murderer hires a hit man and furnishes his agent money and a gun, neither the consideration he gives
    nor
    the services he receives are commercial. Adler was not being offered $ 52 million in exchange for blank letterheads and his signature. He was
    offered
    this tempting amount for his services in aiding a moneylaundering
    operation.
    To say he was paid for the documents alone would be like saying the hit
    man
    was paid for the bullets he used. The services contract was a criminal instrument, proposing fraud by Adler to be compensated by criminal
    profits.
    The majority attempts to distinguish an illegal [*30] contract from "a contract with an illegal purpose." This exercise in hairsplitting ignores the actual finding of fact by the district court: "The Court finds that,
    on
    its face, the Benzil letter (Exhibit 1) involves criminal activity and
    Adler
    participated in that criminal activity." Not only was the purpose of the contract found by the district court to be criminal, so was its nature
    found
    by the district court to be illegal: an attempt by an "obligor under a contract to assign the obligee's rights to a third party" and "to convert funds belonging to the Nigerian government" to the use of Adler and his co-conspirators. It is intrinsically alien to the marketplace to contract
    to
    defraud a government. The nature of the contract was criminal and
    therefore
    its nature was not commercial. See Weltover, 504 U.S. at 614. A contract
    of
    this kind is intrinsically evil or, in the traditional Latin phrase, malum in se. It is sometimes difficult to distinguish what is intrinsically evil from what is wrong because it is prohibited. An example is a monopoly in violation of the antitrust laws. Arguably, at least, such a monopoly could be seen as merely malum prohibitum and [*31] a sovereign engaging in it
    as
    conducting commercial activity within the sense of the statute. Such ambiguity does not exist where the contract in question is the instrument of fraud. No society treats fraud as innocent activity. In this case the contract that the court accepts as commercial activity was the instrument of fraud. That is not my characterization but the claim with which Adler launched this lawsuit: the defendants had defrauded him by offering him the contract purportedly signed by Chief Abba Ganna. The plaintiff is not free to repudiate his own characterization of the
    contract.
    He is in the position of contending that the government of Nigeria engaged in commercial activity by the practice of fraud, criminal both under the laws of Nigeria and the laws of California. Looked at in terms of Adler's complaint, this criminal scheme was intrinsically dishonest. Looked at in terms of Adler's own promised services pursuant to the contract, Adler entered into a criminal enterprise to hide what even the majority concedes were "stolen funds." Either way, the central contract involved fraud and constituted malum in se. After the district court determined that the alleged contract [*32] for the computerization for the oil fields did not exist, Adler's one
    remaining
    claim was for misrepresentation and deceit. Any claim rising out of misrepresentation or deceit is expressly barred by 28 U.S.C. 1605(a)(5)(B). Hornbook law is that a contract is illegal if it either has an illegal purpose or was based on an illegal consideration. Witkin, Summary of Cal. Law (9th ed. 1987) Contracts 441; 6A Corbin on Contracts 1378 (1993). The contract with Chief Abba Ganna had an illegal purpose and was based on an illegal consideration. The alleged purpose of the contract was to moneylaunder cash fraudulently obtained at the expense of the government. The consideration offered was a portion of these criminal proceeds.
    Hornbook
    law maintains that a contract like this contract against good morals is malum in se. See Witkin, Summary of Cal. Law (1987) Contracts 441. A contract which is malum in se is alien to the market. A contract to commit murder does not become commercial activity because
    the
    hit man contracts with a payor for his services. See Letelier v. Republic
    of
    Chile, 748 F.2d 790, 797 (2d Cir. 1984). [*33] An agreement as to the ransom between kidnappers and the parents of a kidnapped child does not become commercial activity because a contract for services is thereby entered into by the kidnappers. See Cicippio v. Islamic Republic of Iran, 308 U.S. App. D.C. 102, 30 F.3d 164, 168 (D.C. Cir. 1994). A contract to evade the laws of Nigeria by furnishing false documents to deceive the government of Nigeria does not become commercial activity because there is
    a
    contract for the criminal services of the agent of the fraud; a fortiori,
    no
    commercial activity exists when the payment for the services is to be criminally-acquired and criminally-transported loot. In the decided cases, the victim of a kidnapping could not sue in federal court the nation arranging the kidnapping because the kidnapping is not commercial activity; the victim of a murder plot could not sue federally
    the
    nation contracting for the murder, because murder is not commercial activity. We have discovered no case where the criminal himself had the effrontery to sue alleged accomplices asserting that the crimes in which
    he
    had participated were commercial activity. It is an insult to every honest trader [*34] or businessman to suppose that a cunning criminal scheme, if initiated by a contract, is commercial activity. It is an insult to any foreign country, and in this instance to Nigeria,
    to
    maintain that a contract proposing a fraud on the government of Nigeria is commercial activity being carried on by the government. The government is not in business to defraud itself. Corruption is not commerce. The opinion quotes from Republic of Argentina v. Weltover, 504 U.S. 607, 614, 119 L. Ed. 2d 394, 112 S. Ct. 2160 (1992): "when a foreign government acts, not as a regulator of a market, but in a manner of a private player within it, the foreign sovereign's actions are 'commercial' within the meaning of the FSIA." The opinion then declares: "The agreement to convert Nigerian government funds satisfies the Weltover definition of commercial activity" - as if a government scheming to defraud itself was acting "in
    the
    manner of a private player!" When the Supreme Court contrasted private players with regulators it did not sweep all racketeers under the role of private players; the distinction drawn was merely between government as regulator and government as manger of its own [*35] finances. The
    Supreme
    Court reiterated that to have jurisdiction the acts must be "the type of actions by which a private party engages in 'trade and traffic or commerce'." Id. The opinion takes out of context a dictum in Justice White's concurrence
    in
    Nelson, 507 U.S. at 369. Justice White opined hypothetically that governmental thugs performing torture in connection with the commercial operation of a hospital could make the government liable; it was the connection with the Saudi government's commercial activity that brought
    the
    commercial exception into play. See Cicippio, 30 F.3d at 168. There is nothing in the opinion of the court in Nelson that justifies the majority here in stretching for a dictum from a hypothetical in a concurrence. The definition of a criminal conspiracy is an agreement to violate a law. Every conspiracy depends on this kind of contract. That a contract is made is evidence not of commercial dealing but of crime. Congress cannot have meant to make conspiracy a type of commerce for foreign governments to engage in. The Contract Was Void. A corollary of the criminal nature of the contract
    is
    that it was void in [*36] California where the offer was accepted. Smith v. Bach, 183 Cal. 259, 262, 191 P. 14 (1920); R.M. Sherman Co. v. W.R. Thomason, Inc., 191 Cal. App. 3d 559, 563, 236 Cal. Rptr. 577 (1987); Witkin, Summary of Cal. Law (9th ed. 1987) Contracts 441. A void
    contract
    cannot be sued upon. It is a nullity. A nullity cannot qualify under the FSIA requirement of "a regular course of commercial conduct or a
    particular
    commercial transaction or act." 28 U.S.C. 1603(d). Engaging in an act
    that
    is legally nothing is not engaging in commerce. For this reason, too, no federal jurisdiction exists. As no commercial activity was engaged in by Nigeria, there is no occasion
    to
    consider the statutory phrase "in connection with commercial activity." Before that phrase can kick in, some commercial activity must be
    identified.
    Here there is only fraud and conspiracy and bribery from the plaintiff's first involvement up to and after this lawsuit was filed in federal court. Two further peculiarities of the majority opinion may be observed. First,
    it
    finds "the direct effect in the United States caused by the defendants' acts" to be Adler's [*37] payment of bribes. No such finding was made by the district court. No such point was made by Adler in his briefs or in
    his
    oral argument on appeal. No doubt there is a reason that Adler did not advance this argument: it underscored his criminal conduct and his
    audacity
    in asking a federal court to help him recover payments made in defiance of federal law. It is also far from clear how the original contract with
    Chief
    Abba Ganna, if taken seriously as a business transaction, implied that
    Adler
    would bribe anyone: he was merely being asked to assist in the production
    of
    forgeries and falsified documentation. Second, the test offered by the majority for pronouncing activity to be commercial is entirely novel and without foundation in any precedent: that the act of a sovereign is commercial if it is what "every private party
    does
    in the open market." The implication is that only what is ":uniquely sovereign" is immune. This test is not in the statute. The test has been explicitly rejected by the Supreme Court: "the question is not whether the foreign government is acting . . . with the aim of fulfilling uniquely sovereign objectives." Republic of Argentina v. Weltover, 504 U.S. at 614. [*38] It is a gloss that substitutes a wholly different term for the statutory "commercial activity." Conclusion. In summary, the contract at the center of the crux is a
    contract
    made with a fictitious person, Chief Abba Ganna, never shown to have been
    an
    official of the Nigerian government and indeed never shown to have
    existed.
    The contract was criminal in nature and criminal in purpose. It was void under California law. On this fragile foundation the majority has found jurisdiction over a sovereign state presumptively immune from suit in our courts. The district court threw out the plaintiff's case because of his unclean hands. This court is ready to affirm this result. But a further cleansing
    of
    the courthouse is needed. If the truth had been known, we had no jurisdiction on the first appeal. As the truth has come out at trial, we have no jurisdiction now, nor had the district court. This disgraceful effort by the plaintiff to make us parties to a criminal conspiracy should never have darkened our doors. It is time to expunge it wholly. <end>

    Comment


    • #3
      Adler v. Nigeria (419 fraud claim; unclean hands)

      On 13/02/04 18:29, in article BC52C826.B229%[email protected], "Tam"
      <[email protected]> wrote:
      Same case on appeal, affirming decision below: JAMES E. ADLER, aka Jaime Adler; EL SURTIDOR DEL HOGAR, S.A. DE C.V., a Mexican Corporation, Plaintiffs-Appellees- Cross-Appellants, v. THE FEDERAL REPUBLIC OF NIGERIA, a Sovereign State; CENTRAL BANK OF NIGERIA; PAUL OGWUMA, aka Paul Oguma; NIGERIAN NATIONAL PETROLEUM CORPORATION, Defendants-Appellants- Cross-Appellees, and CHIEF ABBA GANNA HEN GEORGE; C. ODIBO, BALLA PETERS; STANLEY EKE; SOLOMON DANIELS; CLEMENT VICTOR ODOZI, CHIEF JOHN OLISA A. AHMED; MAJOR USMAN DAVID PASCAL UZO; UKPO AKPAN; CHIKE OKONKWO; ALHAJI JUBRIL ABDULLAHI; ANDREW AYOMANU; EDMUND ODAFE; MALLAM ABUBAKAR; A. AHMED; PASCAL UZO, Defendants-Cross-Appellees. No. 98-55456, 98-55460 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 219 F.3d 869;2000 U.S. App. LEXIS 10702;2000 Cal. Daily Op. Service 3847;2000 Daily Journal DAR 5165 November 2, 1999, Argued and Submitted, Pasadena, California May 17, 2000, Filed SUBSEQUENT HISTORY: [*1] As Amended on Denial of Rehearing and Rehearing En Banc August 17, 2000, Reported at: 2000 U.S. App. LEXIS 20687. PRIOR HISTORY: Appeal from the United States District Court for the Southern District of California. D.C. No. CV-94-00779-IEG. Irma E. Gonzalez, District Judge, Presiding. 1998 U.S. Dist. LEXIS 23419 <http://groups.google.com/groups?selm=BC510EC4.A124%25tamsuraiya%40yahoo.ca> DISPOSITION: AFFIRMED. COUNSEL: Richard E. McCarthy, Solomon, Ward, Seidenwurm & Smith, San Diego, California, for the plaintiffs-appellees-cross-appellants. David H. Fromm, Chalos & Brown, New York, New York, attorneys for the defendants-appellants-cross-appellees. JUDGES: Before: Harry Pregerson, John T. Noonan, and Diarmuid F. O'Scannlain, Circuit Judges. Opinion by Judge Pregerson; Dissent by Judge Noonan. OPINIONBY: Harry Pregerson OPINION: AMENDED OPINION PREGERSON, Circuit Judge: At the center of this case is an illegal contract between plaintiff James Adler and various Nigerian individuals, including at least one government official, to convert Nigerian government funds for their personal use. The individual Nigerian defendants proposed the agreement to Adler, but did not perform their side of the bargain. Adler did perform, and now seeks to recover over five million dollars he paid to further the illegal contract and to bribe Nigerian government officials. The issue before this court is whether this criminal activity falls within the [*2] "commercial activity" exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. 1330 et seq. The district court held that the defendants were not immune from suit, but applied the unclean hands doctrine to bar Adler from recovering. Defendants appeal and plaintiffs cross-appeal. We have jurisdiction under 28 U.S.C. 1291, and we affirm. We hold that an illegal contract constitutes commercial activity under the FSIA. We also affirm the district court's factual findings, and its application of the clean hands defense to bar Adler's recovery. I Plaintiffs in this case are James E. Adler and El Surtidor del Hogar, S.A. de C.V. ("El Surtidor"). Adler is a United States citizen who resides in California and is president and controlling shareholder of El Surtidor. El Surtidor is a Mexican corporation with its principal place of business in Tijuana, Mexico. Defendants are the Federal Republic of Nigeria, the Central Bank of Nigeria ("CBN"), and seventeen Nigerian officials. The events in this case began in August 1992 when Adler received a letter signed by Chief Abba Ganna. The letter proposed a "business transaction" between [*3] Adler, Ganna and the Chief Accountant of the Nigerian National Petroleum Corporation ("NNPC"). Ganna explained the transaction as follows: During the last civilian regime here in Nigeria, the elected members of the ruling party used their positions and formulated companies and awarded themselves contracts which were fantastically over-invoiced in various government ministries. On the overthrow of the regime by the present military government, an enquiry was set to this. Findings and recommendations were made to the government who has given its blessing for the payment of these contracts half/fully executed. You can now see that there is a good deal for these government officials presently in office hence the ousted notable party stalwarts can not come forward for some of the claims. Ganna requested that Adler send (1) four signed and stamped copies of El Surtidor letterhead and pro forma invoices; and (2) the number to a foreign bank account where 130 million dollars could be deposited. In addition, Adler would be responsible for purchasing first-class airplane tickets for Nigerian officials to travel to Mexico to collect their share of the money. In exchange for [*4] providing these services, Adler would earn a forty percent commission. The remaining sixty percent of the stolen funds would be divided between "miscellaneous expenses" (ten percent) and "the government officials" (fifty percent). As requested, Adler sent the letterhead, invoices, and the number of a bank account in the Grand Cayman Islands. In September 1992, Adler traveled to Nigeria and was permitted to enter the country with a document from the Federal Ministry of Internal Affairs in lieu of a visa. He visited the home of the Minister of Finance and an office of the CBN where he met with various individuals who identified themselves as Nigerian government officials. Among these "officials" was John Olisa, Deputy Governor of the CBN. Olisa showed Adler a bank draft for sixty million dollars made out to El Surtidor and Jaime Adler, and presented Adler with a contract which Adler signed without reading. Olisa told Adler that he would give him a copy of the contract after Adler deposited funds to cover the difference in the exchange rate between the U.S. dollar and the Nigerian nira ("shortfall deposit funds"). Adler was led to believe that the Nigerian government had assigned to [*5] El Surtidor rights under a contract between the NNPC and Strabarg Company, another foreign company, for the computerization of Nigerian oil fields. Beginning with Olisa's request for the shortfall deposit funds, individuals, whom Adler believed to be officials of the Nigerian government, repeatedly requested payments from Adler. They described these payments variously as shortfall deposit funds, taxes, processing fees, confirmation fees, surcharges, legal fees, travel expenses, and gratification. Almost every time that someone requested a payment from Adler, that individual told Adler that as soon as he made that payment, the sixty million dollars would be deposited into his account. Adler continued making payments to Nigerian officials even after he filed this lawsuit. These payments totaled $ 5,180,000. In May 1993, Adler hired a Nigerian lawyer to prepare an affidavit declaring that El Surtidor and Strabarg were sister companies. Adler was told that it was necessary to submit the false affidavit to a Nigerian court in order to obtain the promised funds. Between August 1992 and July 1994, Adler corresponded, by mail and by telephone, with a variety of individuals who represented [*6] themselves as officials of the Nigerian government. In addition, Adler made two more trips to Nigeria prior to filing this lawsuit. In December 1992, he visited Olisa's residence. On the April 1994 trip, Adler met with Paul Ogwuma, Governor of the CBN. In November 1993, Adler borrowed $ 450,000 from Banca Serafin to pay a stamp duty tax. As a condition of the loan, Banca Serafin conducted due diligence and required Adler to change the routing instructions for the sixty million dollars from his Grand Cayman Islands' bank account to Banca Serafin's New York bank account. On Adler's authorization, a Banca Serafin official directed Dr. Clement Odozi, another Deputy Governor of the CBN, to send the sixty million dollars to New York. In February 1994, Adler hired former Congressmen Mervyn Dymally and Jim Bates to assist him in collecting the sixty million dollars. Dymally traveled to Nigeria, investigated the situation, and reported to Adler that the agreement was a "scam." Even after receiving this report, Adler continued to make payments requested by the Nigerian officials. In May 1994, Adler filed this suit in district court, naming as defendants the Federal Republic of Nigeria, the [*7] CBN, the NNPC, n1 and seventeen Nigerian officials. n2 Adler alleged claims for fraud, conspiracy to commit fraud, and negligence, among others. Defendants moved to dismiss on the basis of the FSIA, but the district court denied their motion. This court affirmed, holding that the commercial activity exception to the FSIA applied because the contract between the NNPC and Strabarg, along with the assignment to El Surtidor, constituted commercial activity, and that Nigeria's contractual obligation to make payment to Adler in New York was a direct effect in the United States. See Adler v. Federal Republic of Nigeria, 107 F.3d 720 (9th Cir. 1997). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The district court dismissed the NNPC after plaintiffs rested their case. n2 Of the seventeen named officials, only Paul Ogwuma, Governor of the CBN, was served and answered the complaint. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The case proceeded to trial. After an eight day bench trial, the district court found, among other things, that (1) no contract existed between the NNPC and Strabarg [*8] and therefore, the NNPC could not have assigned Strabarg's rights to El Surtidor; (2) the Ganna letter involved criminal activity on its face and Adler knowingly and intentionally participated in that activity; (3) Adler believed that he was dealing with Nigerian government officials and that the scheme was sanctioned by the Nigerian government; (4) Adler paid bribes totaling 2.11 million dollars to Nigerian officials in violation of California bribery law, Cal. Penal Code 7(6), and the Foreign Corrupt Practices Act, 15 U.S.C. 78dd2; (5) Adler, through Banca Serafin, instructed the Nigerian officials to deposit the funds in New York; (6) at least one official of the Nigerian government, CBN Governor Paul Ogwuma, participated as a co-conspirator in the fraud against Adler; and (7) the Nigerian government permitted other co-conspirators to use the CBN offices to further the fraud. On these facts, the district court decided that the unclean hands doctrine barred Adler from recovering the money he paid to Nigerian government officials. n3 The district court also revisited the sovereign immunity question and reaffirmed that the commercial activity exception [*9] applied. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 The district court made factual findings pertaining to the defendants' acts of fraud, but apparently did not decide whether the defendants actually committed any of the torts alleged. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - II We begin with the question of jurisdiction which is a question of law that we review de novo. See In re estate of Ferdinand Marcos Human Rights Litigation, 94 F.3d 539, 543 (9th Cir. 1996). The FSIA "provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country." Argentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428, 443, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989). Under the FSIA, a foreign state is presumptively immune from suit in federal court unless one of the exceptions to the statute applies. See 28 U.S.C. 1604. There is no dispute here that the Federal Republic of Nigeria, the CBN, and Ogwuma fall within the FSIA's definition of a foreign state. See 28 U.S.C. 1603(a) ("A [*10] 'foreign state' . . . includes . . . an agency or instrumentality of a foreign state."); Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095, 1106-06 (9th Cir. 1990) (holding that government officials fall within the definition of an "agency or instrumentality" of a foreign state). The only issue in dispute is whether the FSIA's commercial activity exception applies to the facts of this case. n4 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 Our decision in Adler is not law of the case because that decision was issued before the district court found that the Strabarg contract and assignment were fictitious. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The commercial activity exception to the FSIA denies foreign states immunity from suit in three circumstances: A foreign state shall not be immune from the jurisdiction of courts of the United States . . . in any case . . . in which the action is based [1] upon a commercial activity carried on in the United States by the foreign state; or [2] upon an act performed in the United States in connection with a commercial activity [*11] of the foreign state elsewhere; or [3] upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. 28 U.S.C. 1605(a)(2) (emphasis added). The third clause is at issue here because this suit is based on the defendants' acts of fraud, conspiracy, and negligence which occurred outside of the United States. Defendants contend that the FSIA's commercial activity exception does not apply because (1) their acts were not "in connection with a commercial activity"; and (2) their acts did not have a direct effect in the United States. n5 We disagree. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 An additional requirement for the commercial activity exception to apply was set out in Phaneuf v. Rep. of Indonesia, 106 F.3d 302 (9th Cir. 1997). In Phaneuf, we held that a agent must act with actual authority in order to bind a sovereign under the commercial activity exception. Id. at 308. Neither party contends that Phaneuf is applicable to this case. Indeed, the thrust of defendants' argument is that the district court erred in finding that Ogwuma participated in the fraud, not that Ogwuma did so without authorization from the government. In any event, Phaneuf's rule does not defeat federal jurisdiction over this case. The district court found, not only that Ogwuma, Governor of the CBN, participated as a co-conspirator in the fraud, but also that the Nigerian government permitted other conspirators to use the CBN offices to further the fraud. "Once the plaintiff offers evidence that an FSIA exception to immunity applies, the party claiming immunity bears the burden of proving by a preponderance of the evidence that the exception does not apply." Joseph v. Office of Consulate General of Nigeria, 830 F.2d 1018, 1021 (9th Cir. 1987). Defendants have not sustained their burden of proving that Ogwuma and others acted without actual authority. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*12] A The FSIA defines "commercial activity" as "a regular course of commercial conduct or a particular commercial transaction or act." 28 U.S.C. 1603(e). It also instructs that "the commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose." Id. The agreement between Adler and the Nigerian officials was a commercial transaction. The Nigerian officials contracted for Adler's services: they offered Adler a commission if he would provide them with stamped letterhead, invoices and a bank account to which they could transfer money. Adler accepted their offer. A contract for services is plainly commercial in nature. The fact that the contract was for an illegal purpose, and therefore was unenforceable, does nothing to destroy its commercial nature. See Saudi Arabia v. Nelson, 507 U.S. 349, 366, 123 L. Ed. 2d 47, 113 S. Ct. 1471 (1993) (White, J., concurring) (stating that torture of plaintiff by police was not commercial activity, but torture of plaintiff by government hired thugs would be commercial activity); Braka v. Multibanco Comermex, S.A., 589 F. Supp. 802, 805 (S.D.N.Y. 1984) [*13] (holding that the sale of unregistered securities is commercial activity under the FSIA). n6 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 The dissent disagrees with our characterization of the agreement between Adler and the Nigerian officials as a contract for services, and contends that an agreement that is illegal either in nature or in purpose is not a commercial agreement. Neither the plain meaning of the term commercial, nor the sources cited by the dissent provide support for that proposition. See Black's Law Dictionary 263 (7th ed. 1999) (defining "commerce" as "the exchange of goods and services, esp. on a large scale involving transportation between cities, states, and nations"). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Not all criminal activity falls within the FSIA's commercial activity exception. That proposition is well-established by decisions of this court and others. See Berkovitz v. Islamic Republic of Iran, 735 F.2d 329, 331 (9th Cir. 1983) (finding that murder is not commercial in nature); see also MCI Telecommunications Corp. v. Alhadhood, 82 F.3d 658, 664 (5th Cir. 1996) [*14] (finding that making unauthorized telephone calls is not commercial activity); Cicippio v. Islamic Republic of Iran, 308 U.S. App. D.C. 102, 30 F.3d 164, 167-68 (D.C. Cir. 1994) (holding that kidnaping is not commercial activity); Letelier v. Republic of Chile, 748 F.2d 790, 797 (2d 1984) (holding that assassination is not commercial activity). Our decision today does not conflict with that case law. Each of those cases involved illegal activity devoid of any commercial component. What this case involves, and what drives our decision in this case, is the district court's finding that Adler and the Nigerian officials made a contract for illegal activity. n7 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 Defendants attempt to obfuscate the issue by repeatedly declaring that the district court found that no contract existed. The district court found that there was no contract between the NNPC and Strabarg, but it also found that there was an illegal contract between Adler and the government officials to convert government funds. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*15] The Supreme Court's decision Republic of Argentina v. Weltover, 504 U.S. 607, 612, 119 L. Ed. 2d 394, 112 S. Ct. 2160 (1992), also supports our conclusion that an illegal contract is commercial activity. That case involved the question whether the Argentine government acted "in connection with commercial activity" when it refinanced bonds in order to stabilize the national currency. The Court held that "when a foreign government acts, not as a regulator of a market, but in the manner of a private player within it, the foreign sovereign's actions are 'commercial' within the meaning of the FSIA." Id. at 614. It further explained that "the question is not whether the foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in 'trade and traffic or commerce.'" Id. (quoting Black's Law Dictionary 270 (6th ed. 1990)). The agreement to convert Nigerian government funds satisfies the Weltover definition of commercial [*16] activity. When the Nigerian officials offered Adler a cash commission for participating in an enterprise for mutual advantage, they did essentially what every private party does in the open market (notwithstanding the fact that their precise undertakings were illegal). B Having concluded that this suit is based on acts "in connection with a commercial activity," we turn to the second question: whether the defendants' acts caused a direct effect in the United States. "An effect is 'direct' if it follows as an immediate consequence of the defendant's activity." Weltover, 504 U.S. at 618 (internal quotation marks omitted). In adopting the "immediate consequences" rule, the Supreme Court rejected the more onerous "substantial and foreseeable" test employed by many circuits. See id. Following Weltover, this court reaffirmed the rule that a direct effect requires that "'legally significant acts giving rise to the claim occurred'" in the United States. Adler, 107 F.3d at 727 (quoting United World Trade v. Mangyshlakneft Oil Production ***'n, 33 F.3d 1232, 1239 (10th Cir. 1994)). We have little trouble identifying a [*17] direct effect in the United States caused by the defendants' acts. Adler used the United States mails and telephones to commit bribery in violation of the FCPA as an "immediate consequence" of the defendants' acts. The defendants asked Adler for bribe payments, and persuaded Adler to pay them by telling him that sixty million dollars would be deposited in his bank account if he did so. Therefore, Adler's payment of bribes was an immediate consequence of the defendants' fraudulent acts. Adler's acts of bribery are legally significant with respect to the tort claims because Adler seeks to recover the money he paid in bribes. n8 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 The district court identified two other effects in the United States: (1) Adler instructed the CBN to deposit the funds in a New York bank account; and (2) Adler hired former United States congressmen to investigate the Nigerian scheme. Because we find that Adler's violation of the FCPA satisfies the "direct effect" prong, we do not decide whether the second and third effects identified by the district court are also direct effects. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*18] III On appeal, defendants ask us to reverse several of the district court's factual findings. Specifically, defendants challenge the following findings of fact: (1) Adler met CBN Governor Paul Ogwuma and Ogwuma was a co-conspirator in the conspiracy to defraud Adler; (2) Ogwuma sent Adler letters requesting payments; (3) Adler paid Ogwuma $ 50,000; (4) Adler met the Nigerian Minister of Finance at the Minister's home; (5) Adler met John Olisa and Olisa is a Deputy Governor of the CBN; (6) Adler received a Revenue Collector's Receipt showing payment of $ 300,000; (7) the Nigerian government required a shortfall payment of $ 570,000; (8) Adler paid various fees and taxes to the Nigerian government; (9) Brigadier Ball Peters was Unit Commander for the Presidential Task Force on Trade Malpractices of CBN; and (10) Dr. Clement Odozi was the Deputy Governor of the CBN. We review a district court's factual findings for clear error. See Fed. R. Civ. P. 52(a); Adler, 107 F.3d at 729. "We accept the lower court's findings of fact unless upon review we are left with the definite and firm conviction that a mistake has been committed." United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998) [*19] (en banc). We may not reject the district court's "account of the evidence [if it] is plausible in light of the record viewed in its entirety." Id. Here, the district court's factual findings present a plausible account of the evidence, and therefore defendants' challenge fails to satisfy the clear error standard. IV On cross-appeal, Adler argues that the district court erred in applying the unclean hands doctrine. The unclean hands doctrine "closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant." Precision Inst. Mfg. Co. v. Automotive Maintenance Machine Co., 324 U.S. 806, 814, 89 L. Ed. 1381, 65 S. Ct. 993 (1945). Under this doctrine, plaintiffs seeking equitable relief must have "acted fairly and without fraud or deceit as to the controversy in issue." Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1097 (9th Cir. 1985) (citing Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 387, 88 L. Ed. 814, 64 S. Ct. 622 (1944); Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245, 78 L. Ed. 293, 54 S. Ct. 146 (1933)). [*20] The district court decided that Adler dirtied his hands by intentionally attempting to aid and abet the Nigerian officials' scheme to steal from the government treasury and by paying bribes. Under California law, we review the district courts decision to apply the unclean hands doctrine for an abuse of discretion. See Health Maintenance Network v. Blue Cross of Southern California, 202 Cal. App. 3d 1043, 249 Cal. Rptr. 220 (1988). A district court "abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990); see also United States v. Washington, 98 F.3d 1159, 1162 (9th Cir. 1996). In deciding whether Adler's unclean hands barred relief, the district court applied the correct legal standard. In California, the unclean hands doctrine applies not only to equitable claims, but also to legal ones. See Jacobs v. Universal Development Corp., 53 Cal. App. 4th 692, 699 (1997). The court examined, as California law requires, the nature of the misconduct at issue [*21] and the misconduct's equitable impact on the relationship between the parties and the injuries claimed. See Unilogic v. Burroughs, 10 Cal. App. 4th 612, 619-20 (1992) (citing Blain v. Doctor's Co., 222 Cal. App. 3d 1048, 1060, 272 Cal. Rptr. 250 (1990)). Nevertheless, Adler puts forth a variety of arguments in an attempt to persuade this court that inequity results from the district court's exercise of discretion. He asserts that he and the Nigerian officials are not equally at fault; that the Nigerian officials will be unjustly enriched if they do not return the funds to Adler; and that this court should grant Adler a remedy because, by doing so, it will discourage Nigerian officials from perpetrating such schemes in the future. Whatever the merits of these arguments, the district court did not abuse its discretion in reaching the opposite conclusion. First, it is not clear that Adler is any less blameworthy than the Nigerian officials. The Nigerian officials proposed the criminal scheme, but Adler voluntarily participated it. And while the Nigerian officials successfully defrauded Adler of over five million dollars, Adler attempted to steal sixty [*22] million dollars from the Nigerian government. Second, the fact that the defendants will receive a windfall is not an absolute bar to the unclean hands defense. See Wallace v. Opinham, 73 Cal. App. 2d 25, 26, 165 P.2d 709 (1946) (applying the unclean hands rule in a fraud action in which the parties engaged in illegal gambling and the defendant used marked cards). Finally, it is not clear that justice would be served by compelling the Nigerian government to return the money to Adler. Making a judicial remedy available when the bribe fails to accomplish the intended result would reduce the risk inherent in paying bribes, and encourage individuals such as Adler. In short, public policy favors discouraging frauds such as the one perpetrated on Adler, but it also favors discouraging individuals such as Adler from voluntarily participating in such schemes and paying bribes to bring them to fruition. Finally, Adler relies heavily on two cases, neither of which are analogous to the case before us. In the first case, R. D. Reeder Lathing Co. v. Cypress Ins. Co, 3 Cal. App. 3d 995, 84 Cal. Rptr. 98 (1970), the California Court of Appeals held that the plaintiff [*23] could bring an action for fraud based on an illegal contract. See id. at 999. That case differs in important respects: the plaintiff did not know the underlying contract was illegal when he entered into it, and the defendant had far superior knowledge about the relevant law. See id. Here, the district court found that the deal proposed in Chief Ganna's letter was criminal on its face. The second case, Crosstalk Productions, Inc. v. Jacobson, 65 Cal. App. 4th 631 (1998), involved payments by plaintiffs to safeguard their rights in a legal contract. Rejecting the unclean hands defense, the court held that payments made by the plaintiffs were the result of economic duress and thus were extortionate payments, not bribes. See id. at 640-41. In the instant case, the district court specifically found that the Adler knew the contract was illegal, and that Adler paid illegal bribes. V We hold that the district court properly exercised jurisdiction over this case; the district court's factual findings are not clearly erroneous; and the district court did not abuse its discretion in applying the unclean hands defense to bar Adler's recovery. [*24] AFFIRMED. DISSENTBY: John T. Noonan DISSENT: AMENDED DISSENT NOONAN, Circuit Judge: The majority opinion opens with the declaration. "At the center of this case is an illegal contract between plaintiff James Adler and various Nigerian individuals including at least one government official, to convert Nigerian government funds for their personal use." At the very center of this case, therefore, is a contract criminal in nature and purpose, which the majority for unexplained reasons contends constitutes commercial activity. This case has no place in our courts. It began with a mistaken allegation of a fact conferring federal jurisdiction, a mistake that led to an opinion of this court properly assuming on a motion to dismiss that the allegation was true. On remand to the district court for trial, the mistake was laid bare. The factual allegation conferring jurisdiction was not true. Foundation for federal jurisdiction disappeared. Nonetheless the trial continued because of the plaintiff's contention that he had engaged in a criminal conspiracy with officials of the Nigerian government. Jurisdiction does not exist on the foundation of this contention. A criminal conspiracy in violation [*25] of the laws of Nigeria and of the United States does not constitute commercial activity by Nigeria. Only commercial activity by Nigeria provides an exception to the immunity of this foreign state from the jurisdiction of our courts, 28 U.S.C. 1605. As no commercial activity was conducted here, no jurisdiction exists or existed to try this case, 28 U.S.C. 1330(c). The Original Mistake. On July 1, 1996, the plaintiff filed his first amended complaint alleging that "the Nigerian National Petroleum Corporation [the NNPC], a quasi-governmental agency wholly owned and controlled by the Federal Republic of Nigeria, entered into a contract with a foreign corporation known as Strabarg & Company, Ltd., a company registered under the Nigerian Companies Act, 1968." The complaint went on to state that the plaintiff had accepted assignment of proceeds due under this contract to computerize oil fields in Kaduna. Nigeria and the Nigerian officials moved to dismiss on the grounds of sovereign immunity. On appeal, we said: "The district court ruled that Nigeria engaged in commercial activity by entering into an agreement for the assignment of [*26] a contract in exchange for consideration. We agree." Adler v. The Federal Republic of Nigeria, 107 F.3d 720, 725 (9th Cir. 1997). The case returned to the district court for trial. After trial, the district court found "that no contract existed between Adler and the NNPC. Additionally, it is undisputed that no contract existed between the NNPC and Strabarg to computerize the oil fields in Kaduna. In fact, no oil fields exist in Kaduna. Because no contract existed between the NNPC and Strabarg, no assignment of any contract could be made to Adler." The commercial activity alleged in the complaint and accepted as commercial activity by us was thus found to be a fiction. Not only had no assignment been made but no contract to be assigned had existed, and the subject of the contract, oil fields to be computerized, did not exist. The facts on which jurisdiction had been based were now stamped as wholly bogus. The Plaintiff's Criminal Activity. The district court further found after trial that "the evidence establishes that Adler intended to aid and abet Nigeria officials to pay themselves kickbacks." Adler was asking the court's help to recover monies paid by him [*27] "to further criminal activity." "From August 1992, until the time that this lawsuit was filed, Adler knowingly and intentionally engaged in illegal conduct to obtain money to which he and his company were not entitled." Throughout the period in question, "Adler engaged in numerous acts of bribery." Even after the law suit was filed, "Adler made another $ 50,000 payment to obtain the proceeds to which he was not entitled." After making these findings, the court concluded: The Court finds that Adler violated the Foreign Corrupt Practices Act, 15 U.S.C. 78dd2 (1997) . . . . Adler traveled in interstate commerce and used instrumentalities of interstate commerce to make gifts and payments to foreign officials or persons he believed were foreign officials for the purpose of influencing their decisions to assist him in obtaining or returning business. To prove his case, the plaintiff had proved himself to have been a criminal. Unashamedly, he had sought the help of a federal court to recover the promised share of his criminal endeavors. The district court resisted this desperate undertaking. Criminal Activity Is Not Commercial Activity. Repulsing [*28] the attempt to make a federal court an accessory to crime, the district court nonetheless held that it retained jurisdiction because this activity was commercial. The opinion on appeal accepts this conclusion. It is a conclusion contrary to the controlling statute, to relevant precedent, and to common sense. The basic fraud, notorious in Nigeria for its practice by skilled confidence men, is known to the Nigerian police as a "419", because it is a violation of the Criminal Code Act of Nigeria, Chapter 77, 419 (1990). A common kind of fraud, it involves no commerce and no activity of the government. To the extent, if any, that real governmental officials played a part in this "419", they were not only violating the anti-fraud law but various other provisions of the criminal code, including 98 (corruption); 103 (false claims by officials); 104 (abuse of office); and 422 (conspiracy to defraud the public). The majority rests its holding of jurisdiction on the letter from Chief Abba Ganna (a wholly fictitious person) to Adler offering Adler 40% of $ 130 million from contracts "fantastically over-invoiced" by unnamed government officials. The letter was on the letterhead [*29] of something called "Benzil (Nig.) Ltd." and is referred to by the district court as "the Benzil letter." The majority reasons that the activity was commercial because a contract was made between the plaintiff and the persons he supposed were Nigerian officials. The majority declares: "A contract for services is plainly commercial in nature. The fact that the contract was for an illegal purpose, and therefore unenforceable, does nothing to destroy its commercial nature." This analysis seems to suppose that any contract for any service is "plainly commercial in nature." But when a would-be murderer hires a hit man and furnishes his agent money and a gun, neither the consideration he gives nor the services he receives are commercial. Adler was not being offered $ 52 million in exchange for blank letterheads and his signature. He was offered this tempting amount for his services in aiding a moneylaundering operation. To say he was paid for the documents alone would be like saying the hit man was paid for the bullets he used. The services contract was a criminal instrument, proposing fraud by Adler to be compensated by criminal profits. The majority attempts to distinguish an illegal [*30] contract from "a contract with an illegal purpose." This exercise in hairsplitting ignores the actual finding of fact by the district court: "The Court finds that, on its face, the Benzil letter (Exhibit 1) involves criminal activity and Adler participated in that criminal activity." Not only was the purpose of the contract found by the district court to be criminal, so was its nature found by the district court to be illegal: an attempt by an "obligor under a contract to assign the obligee's rights to a third party" and "to convert funds belonging to the Nigerian government" to the use of Adler and his co-conspirators. It is intrinsically alien to the marketplace to contract to defraud a government. The nature of the contract was criminal and therefore its nature was not commercial. See Weltover, 504 U.S. at 614. A contract of this kind is intrinsically evil or, in the traditional Latin phrase, malum in se. It is sometimes difficult to distinguish what is intrinsically evil from what is wrong because it is prohibited. An example is a monopoly in violation of the antitrust laws. Arguably, at least, such a monopoly could be seen as merely malum prohibitum and [*31] a sovereign engaging in it as conducting commercial activity within the sense of the statute. Such ambiguity does not exist where the contract in question is the instrument of fraud. No society treats fraud as innocent activity. In this case the contract that the court accepts as commercial activity was the instrument of fraud. That is not my characterization but the claim with which Adler launched this lawsuit: the defendants had defrauded him by offering him the contract purportedly signed by Chief Abba Ganna. The plaintiff is not free to repudiate his own characterization of the contract. He is in the position of contending that the government of Nigeria engaged in commercial activity by the practice of fraud, criminal both under the laws of Nigeria and the laws of California. Looked at in terms of Adler's complaint, this criminal scheme was intrinsically dishonest. Looked at in terms of Adler's own promised services pursuant to the contract, Adler entered into a criminal enterprise to hide what even the majority concedes were "stolen funds." Either way, the central contract involved fraud and constituted malum in se. After the district court determined that the alleged contract [*32] for the computerization for the oil fields did not exist, Adler's one remaining claim was for misrepresentation and deceit. Any claim rising out of misrepresentation or deceit is expressly barred by 28 U.S.C. 1605(a)(5)(B). Hornbook law is that a contract is illegal if it either has an illegal purpose or was based on an illegal consideration. Witkin, Summary of Cal. Law (9th ed. 1987) Contracts 441; 6A Corbin on Contracts 1378 (1993). The contract with Chief Abba Ganna had an illegal purpose and was based on an illegal consideration. The alleged purpose of the contract was to moneylaunder cash fraudulently obtained at the expense of the government. The consideration offered was a portion of these criminal proceeds. Hornbook law maintains that a contract like this contract against good morals is malum in se. See Witkin, Summary of Cal. Law (1987) Contracts 441. A contract which is malum in se is alien to the market. A contract to commit murder does not become commercial activity because the hit man contracts with a payor for his services. See Letelier v. Republic of Chile, 748 F.2d 790, 797 (2d Cir. 1984). [*33] An agreement as to the ransom between kidnappers and the parents of a kidnapped child does not become commercial activity because a contract for services is thereby entered into by the kidnappers. See Cicippio v. Islamic Republic of Iran, 308 U.S. App. D.C. 102, 30 F.3d 164, 168 (D.C. Cir. 1994). A contract to evade the laws of Nigeria by furnishing false documents to deceive the government of Nigeria does not become commercial activity because there is a contract for the criminal services of the agent of the fraud; a fortiori, no commercial activity exists when the payment for the services is to be criminally-acquired and criminally-transported loot. In the decided cases, the victim of a kidnapping could not sue in federal court the nation arranging the kidnapping because the kidnapping is not commercial activity; the victim of a murder plot could not sue federally the nation contracting for the murder, because murder is not commercial activity. We have discovered no case where the criminal himself had the effrontery to sue alleged accomplices asserting that the crimes in which he had participated were commercial activity. It is an insult to every honest trader [*34] or businessman to suppose that a cunning criminal scheme, if initiated by a contract, is commercial activity. It is an insult to any foreign country, and in this instance to Nigeria, to maintain that a contract proposing a fraud on the government of Nigeria is commercial activity being carried on by the government. The government is not in business to defraud itself. Corruption is not commerce. The opinion quotes from Republic of Argentina v. Weltover, 504 U.S. 607, 614, 119 L. Ed. 2d 394, 112 S. Ct. 2160 (1992): "when a foreign government acts, not as a regulator of a market, but in a manner of a private player within it, the foreign sovereign's actions are 'commercial' within the meaning of the FSIA." The opinion then declares: "The agreement to convert Nigerian government funds satisfies the Weltover definition of commercial activity" - as if a government scheming to defraud itself was acting "in the manner of a private player!" When the Supreme Court contrasted private players with regulators it did not sweep all racketeers under the role of private players; the distinction drawn was merely between government as regulator and government as manger of its own [*35] finances. The Supreme Court reiterated that to have jurisdiction the acts must be "the type of actions by which a private party engages in 'trade and traffic or commerce'." Id. The opinion takes out of context a dictum in Justice White's concurrence in Nelson, 507 U.S. at 369. Justice White opined hypothetically that governmental thugs performing torture in connection with the commercial operation of a hospital could make the government liable; it was the connection with the Saudi government's commercial activity that brought the commercial exception into play. See Cicippio, 30 F.3d at 168. There is nothing in the opinion of the court in Nelson that justifies the majority here in stretching for a dictum from a hypothetical in a concurrence. The definition of a criminal conspiracy is an agreement to violate a law. Every conspiracy depends on this kind of contract. That a contract is made is evidence not of commercial dealing but of crime. Congress cannot have meant to make conspiracy a type of commerce for foreign governments to engage in. The Contract Was Void. A corollary of the criminal nature of the contract is that it was void in [*36] California where the offer was accepted. Smith v. Bach, 183 Cal. 259, 262, 191 P. 14 (1920); R.M. Sherman Co. v. W.R. Thomason, Inc., 191 Cal. App. 3d 559, 563, 236 Cal. Rptr. 577 (1987); Witkin, Summary of Cal. Law (9th ed. 1987) Contracts 441. A void contract cannot be sued upon. It is a nullity. A nullity cannot qualify under the FSIA requirement of "a regular course of commercial conduct or a particular commercial transaction or act." 28 U.S.C. 1603(d). Engaging in an act that is legally nothing is not engaging in commerce. For this reason, too, no federal jurisdiction exists. As no commercial activity was engaged in by Nigeria, there is no occasion to consider the statutory phrase "in connection with commercial activity." Before that phrase can kick in, some commercial activity must be identified. Here there is only fraud and conspiracy and bribery from the plaintiff's first involvement up to and after this lawsuit was filed in federal court. Two further peculiarities of the majority opinion may be observed. First, it finds "the direct effect in the United States caused by the defendants' acts" to be Adler's [*37] payment of bribes. No such finding was made by the district court. No such point was made by Adler in his briefs or in his oral argument on appeal. No doubt there is a reason that Adler did not advance this argument: it underscored his criminal conduct and his audacity in asking a federal court to help him recover payments made in defiance of federal law. It is also far from clear how the original contract with Chief Abba Ganna, if taken seriously as a business transaction, implied that Adler would bribe anyone: he was merely being asked to assist in the production of forgeries and falsified documentation. Second, the test offered by the majority for pronouncing activity to be commercial is entirely novel and without foundation in any precedent: that the act of a sovereign is commercial if it is what "every private party does in the open market." The implication is that only what is ":uniquely sovereign" is immune. This test is not in the statute. The test has been explicitly rejected by the Supreme Court: "the question is not whether the foreign government is acting . . . with the aim of fulfilling uniquely sovereign objectives." Republic of Argentina v. Weltover, 504 U.S. at 614. [*38] It is a gloss that substitutes a wholly different term for the statutory "commercial activity." Conclusion. In summary, the contract at the center of the crux is a contract made with a fictitious person, Chief Abba Ganna, never shown to have been an official of the Nigerian government and indeed never shown to have existed. The contract was criminal in nature and criminal in purpose. It was void under California law. On this fragile foundation the majority has found jurisdiction over a sovereign state presumptively immune from suit in our courts. The district court threw out the plaintiff's case because of his unclean hands. This court is ready to affirm this result. But a further cleansing of the courthouse is needed. If the truth had been known, we had no jurisdiction on the first appeal. As the truth has come out at trial, we have no jurisdiction now, nor had the district court. This disgraceful effort by the plaintiff to make us parties to a criminal conspiracy should never have darkened our doors. It is time to expunge it wholly. <end>
      And still they come. Another one this morning (do they think we don't know
      the limited place of customary law in the West African legal system, and
      that however corrupt government and courts may be, they work reasonably well
      as between and among political equals?


      De: "Princess Mary Otete" <[email protected]>*|*Ce mail est un
      spam*|*Ajouter au carnet d'adresses
      : any ****** who will read this rubbish
      Date: Mon, 4 Feb 2002 15:04:46 +0700
      Objet: Strrictly Personal ( Please Help me because of God)

      The Palace of King of Ogoni Kingdom,
      Ogoni Oil producing community,
      Rivers State Nigeria.

      Attention:

      Dearest in The Lord,

      My Dear I know this letter will come to you as a surprise, I have
      already thought of what will come to your mind or how you will feel when you
      see my mail, but because of the persuation I have in the spirit, and the
      convinction God has placed in my mind, I picked up courage to write you
      knowing that it is God wish.

      I am Princess Mary Otete, daughter of Chief Oti Otete, the king of
      Ogoni Kingdom. I am 25 years old and a graduate of Mass Communication. My
      father was the king of Ogoni Kingdom the highest oil producing area in
      Nigeria. He was in charge of reviving royalties from the multi-national oil
      companies and government on behalf of the oil producing communities in
      Nigeria.

      After the hanging of the Ogoni Nine(9) including Ken Saro Wiwa by the late
      dictator General Sani Abacha, my father suffered stroke and died in August
      27th last year. But before his death, he called me and told me he has
      Twenty Three Million Five Hundred and Sixty Thousand Dollars
      (USD23,560,000.00) cash in his possession, specially deposited in a Security
      vault company here. He advised me not to tell anybody except my mother who
      is the last wife of the (8) eight wives that he married.

      My mother did not bear any male child for him. Which implies that all
      my father's properties, companies e.t.c., we have no share in them
      becausem my mother has no male child according to African Tradition. My
      father therefore secretly gave me all the relevant documents of the said
      money, and told me that I should use this money with my mother and my
      younger sisters because he knows that traditionally, if he dies we cannot
      get anything, as inheritance.

      He importantly advised me that I should seek foreign assistannce and
      that I should not invest this money here in Nigeria because of his other
      wives and male children who happen to be my elders. I am soliciting for your
      immediate assistance to get a Bungalow for us, where I will live with my
      mother and two younger sisters and further advise me where and how I will
      invest the balance money overseas, possibly on products of your company and
      other profitable ventures.

      I believe that by the special grace of God, you will help us move this
      money out of Nigeria to any country of your choice where we can invest this
      money judiciously with you. You are entitled to a reasonable part of this
      money based on our agreement, and God will bless you as you help us, Please
      reply through my e-mail

      Looking forward to hear from you as soon as possible. Please reply
      through my mail box:

      Remain blessed.

      Princess Mary Otete



      Comment


      • #4
        Adler v. Nigeria (419 fraud claim; unclean hands)

        Why is the Holy Princess Mary using a .UK address when she is with God in
        oil rich Ogoni kingdom? Huuuuuuuhhhhuuu

        --
        Team EuroMeko
        ---------------------------------------------
        http://blackie.bounceme.net


        "Tam" <[email protected]> wrote in message
        news:BC539D0D.C3E%[email protected]
        On 13/02/04 18:29, in article BC52C826.B229%[email protected], "Tam" <[email protected]> wrote:
        Same case on appeal, affirming decision below: JAMES E. ADLER, aka Jaime Adler; EL SURTIDOR DEL HOGAR, S.A. DE C.V., a Mexican Corporation, Plaintiffs-Appellees- Cross-Appellants, v. THE
        FEDERAL
        REPUBLIC OF NIGERIA, a Sovereign State; CENTRAL BANK OF NIGERIA; PAUL OGWUMA, aka Paul Oguma; NIGERIAN NATIONAL PETROLEUM CORPORATION, Defendants-Appellants- Cross-Appellees, and CHIEF ABBA GANNA HEN GEORGE;
        C.
        ODIBO, BALLA PETERS; STANLEY EKE; SOLOMON DANIELS; CLEMENT VICTOR ODOZI, CHIEF JOHN OLISA A. AHMED; MAJOR USMAN DAVID PASCAL UZO; UKPO AKPAN;
        CHIKE
        OKONKWO; ALHAJI JUBRIL ABDULLAHI; ANDREW AYOMANU; EDMUND ODAFE; MALLAM ABUBAKAR; A. AHMED; PASCAL UZO, Defendants-Cross-Appellees. No. 98-55456, 98-55460 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 219 F.3d 869;2000 U.S. App. LEXIS 10702;2000 Cal. Daily Op. Service 3847;2000 Daily Journal DAR 5165 November 2, 1999, Argued and Submitted, Pasadena, California May 17, 2000, Filed SUBSEQUENT HISTORY: [*1] As Amended on Denial of Rehearing and Rehearing En Banc August 17, 2000, Reported at: 2000 U.S. App. LEXIS 20687. PRIOR HISTORY: Appeal from the United States District Court for the Southern District of California. D.C. No. CV-94-00779-IEG. Irma E.
        Gonzalez,
        District Judge, Presiding. 1998 U.S. Dist. LEXIS 23419
        <http://groups.google.com/groups?selm=BC510EC4.A124%25tamsuraiya%40yahoo.ca>
        DISPOSITION: AFFIRMED. COUNSEL: Richard E. McCarthy, Solomon, Ward, Seidenwurm & Smith, San Diego, California, for the plaintiffs-appellees-cross-appellants. David H. Fromm, Chalos & Brown, New York, New York, attorneys for the defendants-appellants-cross-appellees. JUDGES: Before: Harry Pregerson, John T. Noonan, and Diarmuid F. O'Scannlain, Circuit Judges. Opinion by Judge Pregerson; Dissent by
        Judge
        Noonan. OPINIONBY: Harry Pregerson OPINION: AMENDED OPINION PREGERSON, Circuit Judge: At the center of this case is an illegal contract between plaintiff
        James
        Adler and various Nigerian individuals, including at least one
        government
        official, to convert Nigerian government funds for their personal use.
        The
        individual Nigerian defendants proposed the agreement to Adler, but did
        not
        perform their side of the bargain. Adler did perform, and now seeks to recover over five million dollars he paid to further the illegal
        contract
        and to bribe Nigerian government officials. The issue before this court
        is
        whether this criminal activity falls within the [*2] "commercial
        activity"
        exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C.
        1330
        et seq. The district court held that the defendants were not immune from suit, but applied the unclean hands doctrine to bar Adler from
        recovering.
        Defendants appeal and plaintiffs cross-appeal. We have jurisdiction
        under 28
        U.S.C. 1291, and we affirm. We hold that an illegal contract
        constitutes
        commercial activity under the FSIA. We also affirm the district court's factual findings, and its application of the clean hands defense to bar Adler's recovery. I Plaintiffs in this case are James E. Adler and El Surtidor del Hogar,
        S.A.
        de C.V. ("El Surtidor"). Adler is a United States citizen who resides in California and is president and controlling shareholder of El Surtidor.
        El
        Surtidor is a Mexican corporation with its principal place of business
        in
        Tijuana, Mexico. Defendants are the Federal Republic of Nigeria, the
        Central
        Bank of Nigeria ("CBN"), and seventeen Nigerian officials. The events in this case began in August 1992 when Adler received a
        letter
        signed by Chief Abba Ganna. The letter proposed a "business transaction" between [*3] Adler, Ganna and the Chief Accountant of the Nigerian National Petroleum Corporation ("NNPC"). Ganna explained the transaction
        as
        follows: During the last civilian regime here in Nigeria, the elected members of
        the
        ruling party used their positions and formulated companies and awarded themselves contracts which were fantastically over-invoiced in various government ministries. On the overthrow of the regime by the present military government, an enquiry was set to this. Findings and recommendations were made to the government who has given its blessing for the payment of these contracts half/fully executed. You can now see that there is a good deal for these government officials presently in office hence the ousted notable party stalwarts can not come forward for some of the claims. Ganna requested that Adler send (1) four signed and stamped copies of El Surtidor letterhead and pro forma invoices; and (2) the number to a
        foreign
        bank account where 130 million dollars could be deposited. In addition, Adler would be responsible for purchasing first-class airplane tickets
        for
        Nigerian officials to travel to Mexico to collect their share of the
        money.
        In exchange for [*4] providing these services, Adler would earn a
        forty
        percent commission. The remaining sixty percent of the stolen funds
        would be
        divided between "miscellaneous expenses" (ten percent) and "the
        government
        officials" (fifty percent). As requested, Adler sent the letterhead, invoices, and the number of a bank account in the Grand Cayman Islands. In September 1992, Adler traveled to Nigeria and was permitted to enter
        the
        country with a document from the Federal Ministry of Internal Affairs in lieu of a visa. He visited the home of the Minister of Finance and an
        office
        of the CBN where he met with various individuals who identified
        themselves
        as Nigerian government officials. Among these "officials" was John
        Olisa,
        Deputy Governor of the CBN. Olisa showed Adler a bank draft for sixty million dollars made out to El Surtidor and Jaime Adler, and presented
        Adler
        with a contract which Adler signed without reading. Olisa told Adler
        that he
        would give him a copy of the contract after Adler deposited funds to
        cover
        the difference in the exchange rate between the U.S. dollar and the
        Nigerian
        nira ("shortfall deposit funds"). Adler was led to believe that the
        Nigerian
        government had assigned to [*5] El Surtidor rights under a contract between the NNPC and Strabarg Company, another foreign company, for the computerization of Nigerian oil fields. Beginning with Olisa's request for the shortfall deposit funds,
        individuals,
        whom Adler believed to be officials of the Nigerian government,
        repeatedly
        requested payments from Adler. They described these payments variously
        as
        shortfall deposit funds, taxes, processing fees, confirmation fees, surcharges, legal fees, travel expenses, and gratification. Almost every time that someone requested a payment from Adler, that individual told
        Adler
        that as soon as he made that payment, the sixty million dollars would be deposited into his account. Adler continued making payments to Nigerian officials even after he filed this lawsuit. These payments totaled $ 5,180,000. In May 1993, Adler hired a Nigerian lawyer to prepare an affidavit
        declaring
        that El Surtidor and Strabarg were sister companies. Adler was told that
        it
        was necessary to submit the false affidavit to a Nigerian court in order
        to
        obtain the promised funds. Between August 1992 and July 1994, Adler corresponded, by mail and by telephone, with a variety of individuals who represented [*6]
        themselves
        as officials of the Nigerian government. In addition, Adler made two
        more
        trips to Nigeria prior to filing this lawsuit. In December 1992, he
        visited
        Olisa's residence. On the April 1994 trip, Adler met with Paul Ogwuma, Governor of the CBN. In November 1993, Adler borrowed $ 450,000 from Banca Serafin to pay a
        stamp
        duty tax. As a condition of the loan, Banca Serafin conducted due
        diligence
        and required Adler to change the routing instructions for the sixty
        million
        dollars from his Grand Cayman Islands' bank account to Banca Serafin's
        New
        York bank account. On Adler's authorization, a Banca Serafin official directed Dr. Clement Odozi, another Deputy Governor of the CBN, to send
        the
        sixty million dollars to New York. In February 1994, Adler hired former Congressmen Mervyn Dymally and Jim Bates to assist him in collecting the sixty million dollars. Dymally traveled to Nigeria, investigated the situation, and reported to Adler
        that
        the agreement was a "scam." Even after receiving this report, Adler continued to make payments requested by the Nigerian officials. In May 1994, Adler filed this suit in district court, naming as
        defendants
        the Federal Republic of Nigeria, the [*7] CBN, the NNPC, n1 and
        seventeen
        Nigerian officials. n2 Adler alleged claims for fraud, conspiracy to
        commit
        fraud, and negligence, among others. Defendants moved to dismiss on the basis of the FSIA, but the district court denied their motion. This
        court
        affirmed, holding that the commercial activity exception to the FSIA
        applied
        because the contract between the NNPC and Strabarg, along with the assignment to El Surtidor, constituted commercial activity, and that Nigeria's contractual obligation to make payment to Adler in New York
        was a
        direct effect in the United States. See Adler v. Federal Republic of Nigeria, 107 F.3d 720 (9th Cir. 1997). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
        -
        - - n1 The district court dismissed the NNPC after plaintiffs rested their
        case.
        n2 Of the seventeen named officials, only Paul Ogwuma, Governor of the
        CBN,
        was served and answered the complaint. - - - - - - - - - - - - - - - - -End
        Footnotes- - - - - - - - - - - - - - -
        - - The case proceeded to trial. After an eight day bench trial, the
        district
        court found, among other things, that (1) no contract existed between
        the
        NNPC and Strabarg [*8] and therefore, the NNPC could not have assigned Strabarg's rights to El Surtidor; (2) the Ganna letter involved criminal activity on its face and Adler knowingly and intentionally participated
        in
        that activity; (3) Adler believed that he was dealing with Nigerian government officials and that the scheme was sanctioned by the Nigerian government; (4) Adler paid bribes totaling 2.11 million dollars to
        Nigerian
        officials in violation of California bribery law, Cal. Penal Code
        7(6),
        and the Foreign Corrupt Practices Act, 15 U.S.C. 78dd2; (5) Adler,
        through
        Banca Serafin, instructed the Nigerian officials to deposit the funds in
        New
        York; (6) at least one official of the Nigerian government, CBN Governor Paul Ogwuma, participated as a co-conspirator in the fraud against
        Adler;
        and (7) the Nigerian government permitted other co-conspirators to use
        the
        CBN offices to further the fraud. On these facts, the district court
        decided
        that the unclean hands doctrine barred Adler from recovering the money
        he
        paid to Nigerian government officials. n3 The district court also
        revisited
        the sovereign immunity question and reaffirmed that the commercial
        activity
        exception [*9] applied. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
        -
        - - n3 The district court made factual findings pertaining to the
        defendants'
        acts of fraud, but apparently did not decide whether the defendants
        actually
        committed any of the torts alleged. - - - - - - - - - - - - - - - - -End
        Footnotes- - - - - - - - - - - - - - -
        - - II We begin with the question of jurisdiction which is a question of law
        that
        we review de novo. See In re estate of Ferdinand Marcos Human Rights Litigation, 94 F.3d 539, 543 (9th Cir. 1996). The FSIA "provides the
        sole
        basis for obtaining jurisdiction over a foreign state in the courts of
        this
        country." Argentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428, 443, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989). Under the FSIA, a foreign state is presumptively immune from suit in federal court unless one of
        the
        exceptions to the statute applies. See 28 U.S.C. 1604. There is no
        dispute
        here that the Federal Republic of Nigeria, the CBN, and Ogwuma fall
        within
        the FSIA's definition of a foreign state. See 28 U.S.C. 1603(a) ("A
        [*10]
        'foreign state' . . . includes . . . an agency or instrumentality of a foreign state."); Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095,
        1106-06
        (9th Cir. 1990) (holding that government officials fall within the definition of an "agency or instrumentality" of a foreign state). The
        only
        issue in dispute is whether the FSIA's commercial activity exception
        applies
        to the facts of this case. n4 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
        -
        - - n4 Our decision in Adler is not law of the case because that decision
        was
        issued before the district court found that the Strabarg contract and assignment were fictitious. - - - - - - - - - - - - - - - - -End
        Footnotes- - - - - - - - - - - - - - -
        - - The commercial activity exception to the FSIA denies foreign states
        immunity
        from suit in three circumstances: A foreign state shall not be immune from the jurisdiction of courts of
        the
        United States . . . in any case . . . in which the action is based [1]
        upon
        a commercial activity carried on in the United States by the foreign
        state;
        or [2] upon an act performed in the United States in connection with a commercial activity [*11] of the foreign state elsewhere; or [3] upon
        an
        act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. 28 U.S.C. 1605(a)(2) (emphasis added). The third clause is at issue
        here
        because this suit is based on the defendants' acts of fraud, conspiracy,
        and
        negligence which occurred outside of the United States. Defendants
        contend
        that the FSIA's commercial activity exception does not apply because (1) their acts were not "in connection with a commercial activity"; and (2) their acts did not have a direct effect in the United States. n5 We disagree. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
        -
        - - n5 An additional requirement for the commercial activity exception to
        apply
        was set out in Phaneuf v. Rep. of Indonesia, 106 F.3d 302 (9th Cir.
        1997).
        In Phaneuf, we held that a agent must act with actual authority in order
        to
        bind a sovereign under the commercial activity exception. Id. at 308. Neither party contends that Phaneuf is applicable to this case. Indeed,
        the
        thrust of defendants' argument is that the district court erred in
        finding
        that Ogwuma participated in the fraud, not that Ogwuma did so without authorization from the government. In any event, Phaneuf's rule does not defeat federal jurisdiction over
        this
        case. The district court found, not only that Ogwuma, Governor of the
        CBN,
        participated as a co-conspirator in the fraud, but also that the
        Nigerian
        government permitted other conspirators to use the CBN offices to
        further
        the fraud. "Once the plaintiff offers evidence that an FSIA exception to immunity applies, the party claiming immunity bears the burden of
        proving by
        a preponderance of the evidence that the exception does not apply."
        Joseph
        v. Office of Consulate General of Nigeria, 830 F.2d 1018, 1021 (9th Cir. 1987). Defendants have not sustained their burden of proving that Ogwuma
        and
        others acted without actual authority. - - - - - - - - - - - - - - - - -End
        Footnotes- - - - - - - - - - - - - - -
        - - [*12] A The FSIA defines "commercial activity" as "a regular course of
        commercial
        conduct or a particular commercial transaction or act." 28 U.S.C.
        1603(e).
        It also instructs that "the commercial character of an activity shall be determined by reference to the nature of the course of conduct or
        particular
        transaction or act, rather than by reference to its purpose." Id. The agreement between Adler and the Nigerian officials was a commercial transaction. The Nigerian officials contracted for Adler's services:
        they
        offered Adler a commission if he would provide them with stamped
        letterhead,
        invoices and a bank account to which they could transfer money. Adler accepted their offer. A contract for services is plainly commercial in nature. The fact that the contract was for an illegal purpose, and
        therefore
        was unenforceable, does nothing to destroy its commercial nature. See
        Saudi
        Arabia v. Nelson, 507 U.S. 349, 366, 123 L. Ed. 2d 47, 113 S. Ct. 1471 (1993) (White, J., concurring) (stating that torture of plaintiff by
        police
        was not commercial activity, but torture of plaintiff by government
        hired
        thugs would be commercial activity); Braka v. Multibanco Comermex, S.A.,
        589
        F. Supp. 802, 805 (S.D.N.Y. 1984) [*13] (holding that the sale of unregistered securities is commercial activity under the FSIA). n6 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
        -
        - - n6 The dissent disagrees with our characterization of the agreement
        between
        Adler and the Nigerian officials as a contract for services, and
        contends
        that an agreement that is illegal either in nature or in purpose is not
        a
        commercial agreement. Neither the plain meaning of the term commercial,
        nor
        the sources cited by the dissent provide support for that proposition.
        See
        Black's Law Dictionary 263 (7th ed. 1999) (defining "commerce" as "the exchange of goods and services, esp. on a large scale involving transportation between cities, states, and nations"). - - - - - - - - - - - - - - - - -End
        Footnotes- - - - - - - - - - - - - - -
        - - Not all criminal activity falls within the FSIA's commercial activity exception. That proposition is well-established by decisions of this
        court
        and others. See Berkovitz v. Islamic Republic of Iran, 735 F.2d 329, 331 (9th Cir. 1983) (finding that murder is not commercial in nature); see
        also
        MCI Telecommunications Corp. v. Alhadhood, 82 F.3d 658, 664 (5th Cir.
        1996)
        [*14] (finding that making unauthorized telephone calls is not
        commercial
        activity); Cicippio v. Islamic Republic of Iran, 308 U.S. App. D.C. 102,
        30
        F.3d 164, 167-68 (D.C. Cir. 1994) (holding that kidnaping is not
        commercial
        activity); Letelier v. Republic of Chile, 748 F.2d 790, 797 (2d 1984) (holding that assassination is not commercial activity). Our decision
        today
        does not conflict with that case law. Each of those cases involved
        illegal
        activity devoid of any commercial component. What this case involves,
        and
        what drives our decision in this case, is the district court's finding
        that
        Adler and the Nigerian officials made a contract for illegal activity.
        n7
        - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
        -
        - - n7 Defendants attempt to obfuscate the issue by repeatedly declaring
        that
        the district court found that no contract existed. The district court
        found
        that there was no contract between the NNPC and Strabarg, but it also
        found
        that there was an illegal contract between Adler and the government officials to convert government funds. - - - - - - - - - - - - - - - - -End
        Footnotes- - - - - - - - - - - - - - -
        - - [*15] The Supreme Court's decision Republic of Argentina v. Weltover, 504 U.S. 607, 612, 119 L. Ed. 2d 394, 112 S. Ct. 2160 (1992), also supports our conclusion that an illegal contract is commercial activity. That case involved the question whether the Argentine government acted "in
        connection
        with commercial activity" when it refinanced bonds in order to stabilize
        the
        national currency. The Court held that "when a foreign government acts,
        not
        as a regulator of a market, but in the manner of a private player within
        it,
        the foreign sovereign's actions are 'commercial' within the meaning of
        the
        FSIA." Id. at 614. It further explained that "the question is not
        whether
        the foreign government is acting with a profit motive or instead with
        the
        aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the particular actions that the foreign state performs (whatever
        the
        motive behind them) are the type of actions by which a private party
        engages
        in 'trade and traffic or commerce.'" Id. (quoting Black's Law Dictionary
        270
        (6th ed. 1990)). The agreement to convert Nigerian government funds satisfies the
        Weltover
        definition of commercial [*16] activity. When the Nigerian officials offered Adler a cash commission for participating in an enterprise for mutual advantage, they did essentially what every private party does in
        the
        open market (notwithstanding the fact that their precise undertakings
        were
        illegal). B Having concluded that this suit is based on acts "in connection with a commercial activity," we turn to the second question: whether the defendants' acts caused a direct effect in the United States. "An effect
        is
        'direct' if it follows as an immediate consequence of the defendant's activity." Weltover, 504 U.S. at 618 (internal quotation marks omitted).
        In
        adopting the "immediate consequences" rule, the Supreme Court rejected
        the
        more onerous "substantial and foreseeable" test employed by many
        circuits.
        See id. Following Weltover, this court reaffirmed the rule that a direct effect requires that "'legally significant acts giving rise to the claim occurred'" in the United States. Adler, 107 F.3d at 727 (quoting United World Trade v. Mangyshlakneft Oil Production ***'n, 33 F.3d 1232, 1239
        (10th
        Cir. 1994)). We have little trouble identifying a [*17] direct effect in the United States caused by the defendants' acts. Adler used the United States
        mails
        and telephones to commit bribery in violation of the FCPA as an
        "immediate
        consequence" of the defendants' acts. The defendants asked Adler for
        bribe
        payments, and persuaded Adler to pay them by telling him that sixty
        million
        dollars would be deposited in his bank account if he did so. Therefore, Adler's payment of bribes was an immediate consequence of the
        defendants'
        fraudulent acts. Adler's acts of bribery are legally significant with respect to the tort claims because Adler seeks to recover the money he
        paid
        in bribes. n8 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -
        -
        - - n8 The district court identified two other effects in the United States:
        (1)
        Adler instructed the CBN to deposit the funds in a New York bank
        account;
        and (2) Adler hired former United States congressmen to investigate the Nigerian scheme. Because we find that Adler's violation of the FCPA satisfies the "direct effect" prong, we do not decide whether the second
        and
        third effects identified by the district court are also direct effects. - - - - - - - - - - - - - - - - -End
        Footnotes- - - - - - - - - - - - - - -
        - - [*18] III On appeal, defendants ask us to reverse several of the district court's factual findings. Specifically, defendants challenge the following
        findings
        of fact: (1) Adler met CBN Governor Paul Ogwuma and Ogwuma was a co-conspirator in the conspiracy to defraud Adler; (2) Ogwuma sent Adler letters requesting payments; (3) Adler paid Ogwuma $ 50,000; (4) Adler
        met
        the Nigerian Minister of Finance at the Minister's home; (5) Adler met
        John
        Olisa and Olisa is a Deputy Governor of the CBN; (6) Adler received a Revenue Collector's Receipt showing payment of $ 300,000; (7) the
        Nigerian
        government required a shortfall payment of $ 570,000; (8) Adler paid
        various
        fees and taxes to the Nigerian government; (9) Brigadier Ball Peters was Unit Commander for the Presidential Task Force on Trade Malpractices of
        CBN;
        and (10) Dr. Clement Odozi was the Deputy Governor of the CBN. We review a district court's factual findings for clear error. See Fed.
        R.
        Civ. P. 52(a); Adler, 107 F.3d at 729. "We accept the lower court's
        findings
        of fact unless upon review we are left with the definite and firm
        conviction
        that a mistake has been committed." United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998) [*19] (en banc). We may not reject the district court's "account of the evidence [if it] is plausible in light of the
        record
        viewed in its entirety." Id. Here, the district court's factual findings present a plausible account of the evidence, and therefore defendants' challenge fails to satisfy the clear error standard. IV On cross-appeal, Adler argues that the district court erred in applying
        the
        unclean hands doctrine. The unclean hands doctrine "closes the doors of
        a
        court of equity to one tainted with inequitableness or bad faith
        relative to
        the matter in which he seeks relief, however improper may have been the behavior of the defendant." Precision Inst. Mfg. Co. v. Automotive Maintenance Machine Co., 324 U.S. 806, 814, 89 L. Ed. 1381, 65 S. Ct.
        993
        (1945). Under this doctrine, plaintiffs seeking equitable relief must
        have
        "acted fairly and without fraud or deceit as to the controversy in
        issue."
        Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1097 (9th Cir. 1985) (citing Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 387, 88 L. Ed. 814, 64
        S.
        Ct. 622 (1944); Keystone Driller Co. v. General Excavator Co., 290 U.S.
        240,
        245, 78 L. Ed. 293, 54 S. Ct. 146 (1933)). [*20] The district court decided that Adler dirtied his hands by intentionally attempting to aid
        and
        abet the Nigerian officials' scheme to steal from the government
        treasury
        and by paying bribes. Under California law, we review the district courts decision to apply
        the
        unclean hands doctrine for an abuse of discretion. See Health
        Maintenance
        Network v. Blue Cross of Southern California, 202 Cal. App. 3d 1043, 249 Cal. Rptr. 220 (1988). A district court "abuses its discretion if it
        bases
        its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Cooter & Gell v. Hartmarx Corp., 496 U.S.
        384,
        405, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990); see also United States
        v.
        Washington, 98 F.3d 1159, 1162 (9th Cir. 1996). In deciding whether Adler's unclean hands barred relief, the district
        court
        applied the correct legal standard. In California, the unclean hands doctrine applies not only to equitable claims, but also to legal ones.
        See
        Jacobs v. Universal Development Corp., 53 Cal. App. 4th 692, 699 (1997).
        The
        court examined, as California law requires, the nature of the misconduct
        at
        issue [*21] and the misconduct's equitable impact on the relationship between the parties and the injuries claimed. See Unilogic v. Burroughs,
        10
        Cal. App. 4th 612, 619-20 (1992) (citing Blain v. Doctor's Co., 222 Cal. App. 3d 1048, 1060, 272 Cal. Rptr. 250 (1990)). Nevertheless, Adler puts forth a variety of arguments in an attempt to persuade this court that inequity results from the district court's
        exercise
        of discretion. He asserts that he and the Nigerian officials are not
        equally
        at fault; that the Nigerian officials will be unjustly enriched if they
        do
        not return the funds to Adler; and that this court should grant Adler a remedy because, by doing so, it will discourage Nigerian officials from perpetrating such schemes in the future. Whatever the merits of these arguments, the district court did not abuse its discretion in reaching
        the
        opposite conclusion. First, it is not clear that Adler is any less blameworthy than the
        Nigerian
        officials. The Nigerian officials proposed the criminal scheme, but
        Adler
        voluntarily participated it. And while the Nigerian officials
        successfully
        defrauded Adler of over five million dollars, Adler attempted to steal
        sixty
        [*22] million dollars from the Nigerian government. Second, the fact
        that
        the defendants will receive a windfall is not an absolute bar to the
        unclean
        hands defense. See Wallace v. Opinham, 73 Cal. App. 2d 25, 26, 165 P.2d
        709
        (1946) (applying the unclean hands rule in a fraud action in which the parties engaged in illegal gambling and the defendant used marked
        cards).
        Finally, it is not clear that justice would be served by compelling the Nigerian government to return the money to Adler. Making a judicial
        remedy
        available when the bribe fails to accomplish the intended result would reduce the risk inherent in paying bribes, and encourage individuals
        such as
        Adler. In short, public policy favors discouraging frauds such as the
        one
        perpetrated on Adler, but it also favors discouraging individuals such
        as
        Adler from voluntarily participating in such schemes and paying bribes
        to
        bring them to fruition. Finally, Adler relies heavily on two cases, neither of which are
        analogous
        to the case before us. In the first case, R. D. Reeder Lathing Co. v. Cypress Ins. Co, 3 Cal. App. 3d 995, 84 Cal. Rptr. 98 (1970), the
        California
        Court of Appeals held that the plaintiff [*23] could bring an action
        for
        fraud based on an illegal contract. See id. at 999. That case differs in important respects: the plaintiff did not know the underlying contract
        was
        illegal when he entered into it, and the defendant had far superior knowledge about the relevant law. See id. Here, the district court found that the deal proposed in Chief Ganna's letter was criminal on its face.
        The
        second case, Crosstalk Productions, Inc. v. Jacobson, 65 Cal. App. 4th
        631
        (1998), involved payments by plaintiffs to safeguard their rights in a
        legal
        contract. Rejecting the unclean hands defense, the court held that
        payments
        made by the plaintiffs were the result of economic duress and thus were extortionate payments, not bribes. See id. at 640-41. In the instant
        case,
        the district court specifically found that the Adler knew the contract
        was
        illegal, and that Adler paid illegal bribes. V We hold that the district court properly exercised jurisdiction over
        this
        case; the district court's factual findings are not clearly erroneous;
        and
        the district court did not abuse its discretion in applying the unclean hands defense to bar Adler's recovery. [*24] AFFIRMED. DISSENTBY: John T. Noonan DISSENT: AMENDED DISSENT NOONAN, Circuit Judge: The majority opinion opens with the declaration. "At the center of this
        case
        is an illegal contract between plaintiff James Adler and various
        Nigerian
        individuals including at least one government official, to convert
        Nigerian
        government funds for their personal use." At the very center of this
        case,
        therefore, is a contract criminal in nature and purpose, which the
        majority
        for unexplained reasons contends constitutes commercial activity. This case has no place in our courts. It began with a mistaken
        allegation of
        a fact conferring federal jurisdiction, a mistake that led to an opinion
        of
        this court properly assuming on a motion to dismiss that the allegation
        was
        true. On remand to the district court for trial, the mistake was laid
        bare.
        The factual allegation conferring jurisdiction was not true. Foundation
        for
        federal jurisdiction disappeared. Nonetheless the trial continued because of the plaintiff's contention
        that
        he had engaged in a criminal conspiracy with officials of the Nigerian government. Jurisdiction does not exist on the foundation of this contention. A criminal conspiracy in violation [*25] of the laws of Nigeria and of the United States does not constitute commercial activity
        by
        Nigeria. Only commercial activity by Nigeria provides an exception to
        the
        immunity of this foreign state from the jurisdiction of our courts, 28 U.S.C. 1605. As no commercial activity was conducted here, no
        jurisdiction
        exists or existed to try this case, 28 U.S.C. 1330(c). The Original Mistake. On July 1, 1996, the plaintiff filed his first
        amended
        complaint alleging that "the Nigerian National Petroleum Corporation
        [the
        NNPC], a quasi-governmental agency wholly owned and controlled by the Federal Republic of Nigeria, entered into a contract with a foreign corporation known as Strabarg & Company, Ltd., a company registered
        under
        the Nigerian Companies Act, 1968." The complaint went on to state that
        the
        plaintiff had accepted assignment of proceeds due under this contract to computerize oil fields in Kaduna. Nigeria and the Nigerian officials
        moved
        to dismiss on the grounds of sovereign immunity. On appeal, we said:
        "The
        district court ruled that Nigeria engaged in commercial activity by
        entering
        into an agreement for the assignment of [*26] a contract in exchange
        for
        consideration. We agree." Adler v. The Federal Republic of Nigeria, 107
        F.3d
        720, 725 (9th Cir. 1997). The case returned to the district court for
        trial.
        After trial, the district court found "that no contract existed between Adler and the NNPC. Additionally, it is undisputed that no contract
        existed
        between the NNPC and Strabarg to computerize the oil fields in Kaduna.
        In
        fact, no oil fields exist in Kaduna. Because no contract existed between
        the
        NNPC and Strabarg, no assignment of any contract could be made to
        Adler."
        The commercial activity alleged in the complaint and accepted as
        commercial
        activity by us was thus found to be a fiction. Not only had no
        assignment
        been made but no contract to be assigned had existed, and the subject of
        the
        contract, oil fields to be computerized, did not exist. The facts on
        which
        jurisdiction had been based were now stamped as wholly bogus. The Plaintiff's Criminal Activity. The district court further found
        after
        trial that "the evidence establishes that Adler intended to aid and abet Nigeria officials to pay themselves kickbacks." Adler was asking the
        court's
        help to recover monies paid by him [*27] "to further criminal
        activity."
        "From August 1992, until the time that this lawsuit was filed, Adler knowingly and intentionally engaged in illegal conduct to obtain money
        to
        which he and his company were not entitled." Throughout the period in question, "Adler engaged in numerous acts of bribery." Even after the
        law
        suit was filed, "Adler made another $ 50,000 payment to obtain the
        proceeds
        to which he was not entitled." After making these findings, the court concluded: The Court finds that Adler violated the Foreign Corrupt Practices Act,
        15
        U.S.C. 78dd2 (1997) . . . . Adler traveled in interstate commerce and
        used
        instrumentalities of interstate commerce to make gifts and payments to foreign officials or persons he believed were foreign officials for the purpose of influencing their decisions to assist him in obtaining or returning business. To prove his case, the plaintiff had proved himself to have been a
        criminal.
        Unashamedly, he had sought the help of a federal court to recover the promised share of his criminal endeavors. The district court resisted
        this
        desperate undertaking. Criminal Activity Is Not Commercial Activity. Repulsing [*28] the
        attempt
        to make a federal court an accessory to crime, the district court nonetheless held that it retained jurisdiction because this activity was commercial. The opinion on appeal accepts this conclusion. It is a conclusion contrary to the controlling statute, to relevant precedent,
        and
        to common sense. The basic fraud, notorious in Nigeria for its practice by skilled
        confidence
        men, is known to the Nigerian police as a "419", because it is a
        violation
        of the Criminal Code Act of Nigeria, Chapter 77, 419 (1990). A common
        kind
        of fraud, it involves no commerce and no activity of the government. To
        the
        extent, if any, that real governmental officials played a part in this "419", they were not only violating the anti-fraud law but various other provisions of the criminal code, including 98 (corruption); 103
        (false
        claims by officials); 104 (abuse of office); and 422 (conspiracy to defraud the public). The majority rests its holding of jurisdiction on the letter from Chief
        Abba
        Ganna (a wholly fictitious person) to Adler offering Adler 40% of $ 130 million from contracts "fantastically over-invoiced" by unnamed
        government
        officials. The letter was on the letterhead [*29] of something called "Benzil (Nig.) Ltd." and is referred to by the district court as "the
        Benzil
        letter." The majority reasons that the activity was commercial because a contract
        was
        made between the plaintiff and the persons he supposed were Nigerian officials. The majority declares: "A contract for services is plainly commercial in nature. The fact that the contract was for an illegal
        purpose,
        and therefore unenforceable, does nothing to destroy its commercial
        nature."
        This analysis seems to suppose that any contract for any service is
        "plainly
        commercial in nature." But when a would-be murderer hires a hit man and furnishes his agent money and a gun, neither the consideration he gives
        nor
        the services he receives are commercial. Adler was not being offered $
        52
        million in exchange for blank letterheads and his signature. He was
        offered
        this tempting amount for his services in aiding a moneylaundering
        operation.
        To say he was paid for the documents alone would be like saying the hit
        man
        was paid for the bullets he used. The services contract was a criminal instrument, proposing fraud by Adler to be compensated by criminal
        profits.
        The majority attempts to distinguish an illegal [*30] contract from "a contract with an illegal purpose." This exercise in hairsplitting
        ignores
        the actual finding of fact by the district court: "The Court finds that,
        on
        its face, the Benzil letter (Exhibit 1) involves criminal activity and
        Adler
        participated in that criminal activity." Not only was the purpose of the contract found by the district court to be criminal, so was its nature
        found
        by the district court to be illegal: an attempt by an "obligor under a contract to assign the obligee's rights to a third party" and "to
        convert
        funds belonging to the Nigerian government" to the use of Adler and his co-conspirators. It is intrinsically alien to the marketplace to
        contract to
        defraud a government. The nature of the contract was criminal and
        therefore
        its nature was not commercial. See Weltover, 504 U.S. at 614. A contract
        of
        this kind is intrinsically evil or, in the traditional Latin phrase,
        malum
        in se. It is sometimes difficult to distinguish what is intrinsically evil from what is wrong because it is prohibited. An example is a monopoly in violation of the antitrust laws. Arguably, at least, such a monopoly
        could
        be seen as merely malum prohibitum and [*31] a sovereign engaging in
        it as
        conducting commercial activity within the sense of the statute. Such ambiguity does not exist where the contract in question is the instrument of fraud. No society treats fraud as innocent activity. In
        this
        case the contract that the court accepts as commercial activity was the instrument of fraud. That is not my characterization but the claim with which Adler launched this lawsuit: the defendants had defrauded him by offering him the contract purportedly signed by Chief Abba Ganna. The plaintiff is not free to repudiate his own characterization of the
        contract.
        He is in the position of contending that the government of Nigeria
        engaged
        in commercial activity by the practice of fraud, criminal both under the laws of Nigeria and the laws of California. Looked at in terms of
        Adler's
        complaint, this criminal scheme was intrinsically dishonest. Looked at
        in
        terms of Adler's own promised services pursuant to the contract, Adler entered into a criminal enterprise to hide what even the majority
        concedes
        were "stolen funds." Either way, the central contract involved fraud and constituted malum in se. After the district court determined that the alleged contract [*32]
        for
        the computerization for the oil fields did not exist, Adler's one
        remaining
        claim was for misrepresentation and deceit. Any claim rising out of misrepresentation or deceit is expressly barred by 28 U.S.C. 1605(a)(5)(B). Hornbook law is that a contract is illegal if it either has an illegal purpose or was based on an illegal consideration. Witkin, Summary of
        Cal.
        Law (9th ed. 1987) Contracts 441; 6A Corbin on Contracts 1378
        (1993).
        The contract with Chief Abba Ganna had an illegal purpose and was based
        on
        an illegal consideration. The alleged purpose of the contract was to moneylaunder cash fraudulently obtained at the expense of the
        government.
        The consideration offered was a portion of these criminal proceeds.
        Hornbook
        law maintains that a contract like this contract against good morals is malum in se. See Witkin, Summary of Cal. Law (1987) Contracts 441. A contract which is malum in se is alien to the market. A contract to commit murder does not become commercial activity because
        the
        hit man contracts with a payor for his services. See Letelier v.
        Republic of
        Chile, 748 F.2d 790, 797 (2d Cir. 1984). [*33] An agreement as to the ransom between kidnappers and the parents of a kidnapped child does not become commercial activity because a contract for services is thereby entered into by the kidnappers. See Cicippio v. Islamic Republic of
        Iran,
        308 U.S. App. D.C. 102, 30 F.3d 164, 168 (D.C. Cir. 1994). A contract to evade the laws of Nigeria by furnishing false documents to deceive the government of Nigeria does not become commercial activity because there
        is a
        contract for the criminal services of the agent of the fraud; a
        fortiori, no
        commercial activity exists when the payment for the services is to be criminally-acquired and criminally-transported loot. In the decided cases, the victim of a kidnapping could not sue in
        federal
        court the nation arranging the kidnapping because the kidnapping is not commercial activity; the victim of a murder plot could not sue federally
        the
        nation contracting for the murder, because murder is not commercial activity. We have discovered no case where the criminal himself had the effrontery to sue alleged accomplices asserting that the crimes in which
        he
        had participated were commercial activity. It is an insult to every honest trader [*34] or businessman to suppose that a cunning criminal scheme, if initiated by a contract, is
        commercial
        activity. It is an insult to any foreign country, and in this instance to Nigeria,
        to
        maintain that a contract proposing a fraud on the government of Nigeria
        is
        commercial activity being carried on by the government. The government
        is
        not in business to defraud itself. Corruption is not commerce. The opinion quotes from Republic of Argentina v. Weltover, 504 U.S. 607, 614, 119 L. Ed. 2d 394, 112 S. Ct. 2160 (1992): "when a foreign
        government
        acts, not as a regulator of a market, but in a manner of a private
        player
        within it, the foreign sovereign's actions are 'commercial' within the meaning of the FSIA." The opinion then declares: "The agreement to
        convert
        Nigerian government funds satisfies the Weltover definition of
        commercial
        activity" - as if a government scheming to defraud itself was acting "in
        the
        manner of a private player!" When the Supreme Court contrasted private players with regulators it did not sweep all racketeers under the role
        of
        private players; the distinction drawn was merely between government as regulator and government as manger of its own [*35] finances. The
        Supreme
        Court reiterated that to have jurisdiction the acts must be "the type of actions by which a private party engages in 'trade and traffic or commerce'." Id. The opinion takes out of context a dictum in Justice White's concurrence
        in
        Nelson, 507 U.S. at 369. Justice White opined hypothetically that governmental thugs performing torture in connection with the commercial operation of a hospital could make the government liable; it was the connection with the Saudi government's commercial activity that brought
        the
        commercial exception into play. See Cicippio, 30 F.3d at 168. There is nothing in the opinion of the court in Nelson that justifies the
        majority
        here in stretching for a dictum from a hypothetical in a concurrence. The definition of a criminal conspiracy is an agreement to violate a
        law.
        Every conspiracy depends on this kind of contract. That a contract is
        made
        is evidence not of commercial dealing but of crime. Congress cannot have meant to make conspiracy a type of commerce for foreign governments to engage in. The Contract Was Void. A corollary of the criminal nature of the
        contract is
        that it was void in [*36] California where the offer was accepted.
        Smith
        v. Bach, 183 Cal. 259, 262, 191 P. 14 (1920); R.M. Sherman Co. v. W.R. Thomason, Inc., 191 Cal. App. 3d 559, 563, 236 Cal. Rptr. 577 (1987); Witkin, Summary of Cal. Law (9th ed. 1987) Contracts 441. A void
        contract
        cannot be sued upon. It is a nullity. A nullity cannot qualify under the FSIA requirement of "a regular course of commercial conduct or a
        particular
        commercial transaction or act." 28 U.S.C. 1603(d). Engaging in an act
        that
        is legally nothing is not engaging in commerce. For this reason, too, no federal jurisdiction exists. As no commercial activity was engaged in by Nigeria, there is no
        occasion to
        consider the statutory phrase "in connection with commercial activity." Before that phrase can kick in, some commercial activity must be
        identified.
        Here there is only fraud and conspiracy and bribery from the plaintiff's first involvement up to and after this lawsuit was filed in federal
        court.
        Two further peculiarities of the majority opinion may be observed.
        First, it
        finds "the direct effect in the United States caused by the defendants' acts" to be Adler's [*37] payment of bribes. No such finding was made
        by
        the district court. No such point was made by Adler in his briefs or in
        his
        oral argument on appeal. No doubt there is a reason that Adler did not advance this argument: it underscored his criminal conduct and his
        audacity
        in asking a federal court to help him recover payments made in defiance
        of
        federal law. It is also far from clear how the original contract with
        Chief
        Abba Ganna, if taken seriously as a business transaction, implied that
        Adler
        would bribe anyone: he was merely being asked to assist in the
        production of
        forgeries and falsified documentation. Second, the test offered by the majority for pronouncing activity to be commercial is entirely novel and without foundation in any precedent:
        that
        the act of a sovereign is commercial if it is what "every private party
        does
        in the open market." The implication is that only what is ":uniquely sovereign" is immune. This test is not in the statute. The test has been explicitly rejected by the Supreme Court: "the question is not whether
        the
        foreign government is acting . . . with the aim of fulfilling uniquely sovereign objectives." Republic of Argentina v. Weltover, 504 U.S. at
        614.
        [*38] It is a gloss that substitutes a wholly different term for the statutory "commercial activity." Conclusion. In summary, the contract at the center of the crux is a
        contract
        made with a fictitious person, Chief Abba Ganna, never shown to have
        been an
        official of the Nigerian government and indeed never shown to have
        existed.
        The contract was criminal in nature and criminal in purpose. It was void under California law. On this fragile foundation the majority has found jurisdiction over a sovereign state presumptively immune from suit in
        our
        courts. The district court threw out the plaintiff's case because of his unclean hands. This court is ready to affirm this result. But a further
        cleansing of
        the courthouse is needed. If the truth had been known, we had no jurisdiction on the first appeal. As the truth has come out at trial, we have no jurisdiction now, nor had the district court. This disgraceful effort by the plaintiff to make us parties to a criminal conspiracy
        should
        never have darkened our doors. It is time to expunge it wholly. <end> And still they come. Another one this morning (do they think we don't know the limited place of customary law in the West African legal system, and that however corrupt government and courts may be, they work reasonably
        well
        as between and among political equals? De: "Princess Mary Otete" <[email protected]> | Ce mail est
        un
        spam | Ajouter au carnet d'adresses : any ****** who will read this rubbish Date: Mon, 4 Feb 2002 15:04:46 +0700 Objet: Strrictly Personal ( Please Help me because of God) The Palace of King of Ogoni Kingdom, Ogoni Oil producing community, Rivers State Nigeria. Attention: Dearest in The Lord, My Dear I know this letter will come to you as a surprise, I have already thought of what will come to your mind or how you will feel when
        you
        see my mail, but because of the persuation I have in the spirit, and the convinction God has placed in my mind, I picked up courage to write you knowing that it is God wish. I am Princess Mary Otete, daughter of Chief Oti Otete, the king of Ogoni Kingdom. I am 25 years old and a graduate of Mass Communication. My father was the king of Ogoni Kingdom the highest oil producing area in Nigeria. He was in charge of reviving royalties from the multi-national
        oil
        companies and government on behalf of the oil producing communities in Nigeria. After the hanging of the Ogoni Nine(9) including Ken Saro Wiwa by the late dictator General Sani Abacha, my father suffered stroke and died in August 27th last year. But before his death, he called me and told me he has Twenty Three Million Five Hundred and Sixty Thousand Dollars (USD23,560,000.00) cash in his possession, specially deposited in a
        Security
        vault company here. He advised me not to tell anybody except my mother who is the last wife of the (8) eight wives that he married. My mother did not bear any male child for him. Which implies that all my father's properties, companies e.t.c., we have no share in them becausem my mother has no male child according to African Tradition. My father therefore secretly gave me all the relevant documents of the said money, and told me that I should use this money with my mother and my younger sisters because he knows that traditionally, if he dies we cannot get anything, as inheritance. He importantly advised me that I should seek foreign assistannce and that I should not invest this money here in Nigeria because of his other wives and male children who happen to be my elders. I am soliciting for
        your
        immediate assistance to get a Bungalow for us, where I will live with my mother and two younger sisters and further advise me where and how I will invest the balance money overseas, possibly on products of your company
        and
        other profitable ventures. I believe that by the special grace of God, you will help us move this money out of Nigeria to any country of your choice where we can invest
        this
        money judiciously with you. You are entitled to a reasonable part of this money based on our agreement, and God will bless you as you help us,
        Please
        reply through my e-mail Looking forward to hear from you as soon as possible. Please reply through my mail box: Remain blessed. Princess Mary Otete

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