Ingrid L. MOCANU vs Mark H. GITENSTEIN
Palm Coast, Florida, October 21, 2017
On Friday, October 27, 2017, six days after I had published this article, Rep. Jackie Speier (D-Calif.) shared her story of experiencing unwanted sexual advances in Congress with the mainstream press. “It is not a victim-friendly process. It is an institution-protection process,” Rep. Speier told The Washington Post, launching at the same time a #MeTooCongress campaign to raise awareness about sexual harassment on Capitol Hill.
Her words struck a chord deep inside me and motivated me to add them as a prologue to my article. I had mumbled “It is an institution-protection process” or its equivalent dozens of times, especially when dealing with the the State Department in Washington, an entrenched bureaucracy if I have ever seen one, serene in its BigPicture view enabling even the smallest cog in their machine to evade responsibility whatever their actions brought on many unsuspecting victims.
It is high time to finally start a universal #MeTooStopInstitutionProtection campaign, because I believe most of us have been impacted for years already by the opacity of those in power. By now, they only know how to lead, but they forgot how to answer.
My name is Nicholas Jordan. I am an American citizen with a long-standing charge of identity theft in Romania, the country of my birth. I was finally cleared a few months ago, despite the police having received every proof possible, even my fingerprints, my naturalization certificate and an affidavit issued in 2003 by the US Embassy in Bucharest confirming my identity. All these and many other ID’s collected through the years were presented at the very start of my ordeal. Nothing else was ever introduced by the accusers, no smidgen of proof was ever offered, not even hinted. I have never been charged, never called to give a deposition, never even contacted officially—just a non-ending secret investigation, for the last 14 years, no less.
Yet since that long-ago day in November 2003, the US Embassy in Bucharest refuses even today to demand an explanation from the Romanian authorities regarding the absurdity of those charges against me. Their motivation, “the American diplomats’ hands are tied in their host country” is nothing but a boilerplate answer useful for any occasion. At the same time, the cable traffic with the State Department in Washington, went on and on, giving details of similar cases. I know it because I’ve seen some of those cables put online by WikiLeaks and showing a different picture: if the American citizen in trouble was a multimillionaire, the US Embassy did indeed intervene and would act very strongly.
Recently, local friends brought to my attention a viral (at least, in Romania) police complaint originating from a former top Romanian official and demanding the criminal investigation of another American citizen, Mark Henry Gitenstein. I wonder in what manner the US Embassy in Bucharest will tell him about their “tied hands,” considering that Mr. Gitenstein was the US ambassador to Romania at the time when the accuser was a director at the Romanian Ministry of Justice. Is it his turn now to endure what I did? Or is there a special procedure put in place for the VIP’s?
Although we are poles apart as political orientation, I found similarities with Ms. Mocanu, who, like me, sees herself as a victim of a system were the watchdogs in the fight against corruption are themselves corrupted or have corrupted the judicial process itself.
We also share a common preoccupation with the intricacies of Fondul Proprietatea, a fund created to compensate the victims of communism, where those dispossessed by the 1950 Nationalization Decree count as the main group. The controversial fund, a behemoth by Eastern European standards, has a very neat description in its brochures meant for prospective share-buyers: “Fondul Proprietatea is a joint stock company operating as a closed-end investment company (Alternative Investment Fund) without a set lifetime, incorporated in Romania, trading on the Bucharest Stock Exchange since January 2011, and on the London Stock Exchange since April 2015.”
I had as well my own encounters, albeit online, with Mr. Gitenstein. On one hand, he was the only US official to ever answer and to promise help (I kept our correspondence as proof, of course); on the other hand, he never followed up on his promise, proving what I already suspected — that ordinary people like me have no hope in such circumstances when other interests, either strategic or economic, are deemed a priori more important.
Mr. Gitenstein’s present job description is described as “lead international strategic business advisor”at Mayer Brown, a giant legal firm and “a global services provider advising clients across the Americas, Asia, Europe and the Middle East,” according to their own website. I do not question Mr. Gitenstein’s financial competence in any way, but his capacity to empathize with an average American (especially one he should be able to relate to: he is barely ten days older than me and our grandparents were all born in Romania during the late 19th century).
According to the humanitarian awards received, Mr. Gitenstein seems to channel his energies outside the US, so, too bad for me. His cozy relationship with top politicians and officials in Romania was continued by the present ambassador Hans Klemm. On October 18, just three days ago, headlines in several Romanian publications trumpeted in unison: “Hans Klemm admitted that the US is involved in the ‘fight against corruption in Romania: We do not have an ally and a friend better than Romania in this part of the world’.”
If they are such good friends, how come both ambassadors could not care less about the persecution I endured just because I am who I said I am, and dozens of friends and contemporaries could have vouched for me, yet no one from the US side moved a finger? I have my own observation to make: Is it right to sacrifice an American citizen to reach presumably strategic objectives and preserve a relationship, in my mind, at best dubious?
Despite my requests, the substance of my complaints was never answered.
Ms. Ingrid Mocanu is much more focused and more precise than I will ever be. As you will observe in the following text, she makes a series of very serious accusations against high placed US officials from the previous administration, even citing on her list of witnesses “Timothy F. Gethner (Secretary of the US Treasury on October 25, 2010) and Hillary Rodham Clinton (Secretary of the US State Department on October 25, 2010).”
Despite its length, a shaky translation and a 3-page intro (both mine), plus the inherent and multiple use of stuffy judicial terms, her complaint, an outline of her future testimony, remains a fascinating document. I think other people, more qualified than me, should offer their opinion, especially about the Fondul Proprietatea, created, as Ms. Mocanu wryly notes, with one main reason: “compensation”. Compensation for the thousands of people dispossessed under the Communist regime, themselves or their family, and all of them still waiting, without ever receiving a cent from Fondul Proprietatea. I am one of those thousands.
Not only do I qualify, but I probably stand out in any list of victims: of the 128 apartment nationalized from my parents, dozens and dozens had been sold illegally by the Romanian authorities to tenants and well-connected politicians nearly 20 years ago. No wonder it has been tried so hard and it would have suited so many, if I could have been unmasked as an impostor.
Interestingly enough, Ms. Mocanu informs us of another fact: “Once his mandate as ambassador was over, Mark Henry Gitenstein became a member of the SC Board of Trustees Fondul Proprietatea S.A. on 04.25.2013, a mandate extended later until 09.30.2019”—so, yes, Mr. Gitenstein might have a hand in the distribution of funds, illusory so far, I am scheduled to receive according to the current files at the City Hall.
As a fellow American taxpayer, I fail to see though how mr. Gitenstein, aware of my plight as shown by his kind-hearted reply, had ever considered me as a possible Fondul Proprietatea beneficiary. By the time I contacted him, he was already a member of the Board of Trustees, but nothing of note happened in what regards me.
Let’s see what Ms. Mocanu has to tell us about the fund:
To: Madam Chief Prosecutor of NAD (National Anticorruption Directorate) Bucharest, Romania
Dear Madam Chief Prosecutor,
The undersigned MOCANU Ingrid Luciana, CNP xxxxxxxxxxxx, domiciled in Bucharest xxxxxxxx xxxx, str. xxxxxxxxxxxxxxxxxxx, Email address xxxxxxxxxxxxxxx@xxxxxxxxx, telephone xxxxxxxxxx, with the chosen domicile (in order to receive there the procedural documents) in Bucharest, xxxxxxxx xxxx, str. xxxxxxxxxxxxxxxxxxx and according to article 290 of the Criminal Procedure Code,
I hereby make the present
against the named Mark Henry GITENSTEIN, an American citizen, domiciled in Washington, D.C. United States of America, born on March 7, 1946, in his quality as member of the Board of Directors of Fondul Proprietatea SA, to be served at his registered (work)address: Franklin Templeton Investment Management UK — Bucharest Branch, Buzeşti Str., no. 78–80, the Premium Point building, floors 7–8, Sector 1, Bucharest, Postal Code 011017, Romania
for committing the offense of influence peddling, as provided by art. 291 par. (1) Criminal Code.
According to art. 291 Criminal Code, this offence is defined as: “To demand, receive or accept a promise of money or other benefits, directly or indirectly, for oneself or for another, committed by a person who has influence or gives the impression that he has an influence on a civil servant and who promises he could persuade him to perform, to not perform, to speed up or to delay the undertaking of an act within his work duties or to undertake acts opposing these duties, is punishable by two to seven years imprisonment.”
Therefore, from the data and information available to me at that time, I discovered that Mark Henry GITENSTEIN used his influence on the top decision-makers in Romania (the Prime Minister and the President) and did persuade them to entrust the administration of Fondul Proprietatea SA to an American company, Franklin Templeton Investments.
It was only after his intervention, according to the data available, that all the “delays” or the “inaccuracies” in signing the contract described above were solved and therefore there was no reason anymore to “postpone” the appointment of Franklin Templeton Investments as administrator.
[FOOTNOTE transposed at the corresponding paragraph]: “The Management Agreement between SC Fondul Proprietatea SA and Franklin Templeton Investment Management Ltd UK was signed on February 25, 2010. Through this act, Franklin Templeton Investment Management Ltd UK was appointed as the official entity in charge of the Fund Investment Management at Fondul Proprietatea and its Unique Administrator.”
Subsequently, on April 25, 2013, as it results from Decision no. 4 of the Ordinary General Meeting of the Shareholders of SC Fondul Proprietatea SA, the same person, Mr. Mark Henry GITENSTEIN, received an important position within the Board of Directors (member of the Board of Directors at Fondul Proprietatea). Following his previous interventions at the highest level, SC Fondul Proprietatea SA was listed on the Bucharest Stock Exchange (at a very questionable value per share) and, in consequence, the shareholders have earned high profits.
The questionable nature of the Bucharest Stock Exchange listing results clearly from the “Prospectus for admission to trading” issued on December 2, 2010. There, instead of a valuation method according to the International Valuation Standards (in line with the principle of fair value, as required by the law at that time, directly affecting investors’ interests and the integrity of the market), another valuation method was applied, one “Based on the equity value of the Companies included in the Portfolio, a valuation reflected in the most recent financial statements.” According to the Prospectus, the value of 60.78% of the Fondul Proprietatea was established by using the second method, based on the “equity value of the Companies included.”
This hypothesis is supported as well by the former Supervisory Board director at Fondul Proprietatea, who, through address no. 243/07.03.2007, notified the Ministry of Public Finance, that:
“*At the date of SC Fondul Proprietatea SA incorporation, the assets of the subscribed and the paid-up share capital were not accompanied by an evaluation report certifying the individual value of each component, only the total;
*In order for the financial statements drawn up by SC Fondul Proprietatea SA to represent a true and fair image of the assets, it was necessary to identify the fair value of each individual asset from the start;
*To achieve the purpose for which the Fondul Proprietatea SA was created (COMPENSATION), it is required to be listed on a regulated market, requiring a listing prospectus which should include a full description of the patrimonial assets and their value;
*The possibility that the public recognition of this factual situation would lead to a political and media scandal.
*Although the in-share capital is listed as being fully subscribed and paid, according to our ministry internal calculations to valuate the in-share capital (calculations transmitted to you, madam Chief Prosecutor, during several meetings we had started in the summer of 2006), we found a difference of approximately RON 5 billion between the value of the in-share capital and the value of the registered assets.
According to Ambassador Klemm’s official declarations, also confirmed by the WikiLeaks transcripts as “The Fund is traded now at .70 RON per share [on January 26, 2016], seven times the amount quoted before the listing” and “Before, the Fund listing was undervalued… As a result, the compensation beneficiaries received only about .10 RON for each RON listed as the value of the shares in the Fund alloted.” (US Ambassador Hans Klemm’s speech at the five-year anniversary of the Proprietatea Fund listing at the Bucharest Stock Exchange, January 26, 2016).
Mr. Mark Henry GITENSTEIN’s intervention (the US ambassador at that time) is described in other WikiLeaks transcripts, made public only accidentally, particularly those from 04. 13.2005, 07.09.2007, 08.14.2008, 06.23.2009 and 02.25.2010.
Thus, in the transcript dated 02.25.2010 (ID 10BUCHAREST 101) and sent to both the Secretary of the Treasury Department of the United States and the US Secretary of State, after a detailed description of the situation at Fondul Proprietatea, we find the following statement: “At the request of the ambassador, both PM Boc and President Basescu intervened personally to finally solve the litigious problem.”
The WikiLeaks cable proves beyond doubt not only the personal intervention by Ambassador Mark Henry GITENSTEIN, but proves that both Prime Minister Boc and President Basescu were involved as well in solving “this litigious problem” at the time when the management contract was awarded.
However, as it can be seen from the public record at that date, even a previous dispute over this award was settled as well in favor of Franklin Templeton Investment, after the company had lost it initially.
It should be verified whether there have been other similar interventions prior to that instance, especially which other persons were involved, persons who, in their turn, should be held accountable in the same way for their actions.
Thus, following the civil decision no. 25518/December 21. 2011, filed at no. 47039/3/2010 of the Bucharest Tribunal, the Decision of the Extraordinary General Meeting of S.C. Fondul Proprietatea Shareholders from September 6, 2010, appointing Franklin Templeton Investment Management Limited London — Romania Branch as the sole administrator of Fondul Proprietatea was overturned. Subsequently, after a highly “controversial” appeal, this solution of annulment was first vacated, then, in 2014, it was finally voided.
Therefore, the personal intervention of the American Ambassador led to the settlement of the litigation and secured F.Templeton’s position by resolving these issues, described in the transcripts as: the resignation of the selection committee chairman; a delay in signing the selection contract and the negotiation of the remaining clauses still in discussion; another delay, this time of a current litigation in the courts (with one of the shareholders who contested the contract and the award process in itself).
Following his interventions at the highest level (Romania’s President and its Prime Minister) and a previous agreement with the Franklin Templeton officials, once his mandate as ambassador was over, Mark Henry GITENSTEIN became a member of the SC Board of Trustees Fondul Proprietatea S.A. on 04.25.2013, a mandate extended later until 09.30.2019.
Yet, his professional qualities in performing the trustee function was not vouched for by any vast previous professional experience, his only links with SA Fondul Proprietatea SC resulting from his “special” relationship with Franklin Templeton, in whose benefit he lobbied both the President and the Prime Minister in office at the time.
It was to be expected that, in exercising these functions, similar interventions were to be expected and I have the proof: in my professional activity (formerly the director of the Ministry of Justice), I found myself dealing with such interventions in several specific cases. And, although I was approached and asked through Mark Henry GITENSTEIN’s interventions, I refused to exercise my duties in any other way than how I had been originally tasked. I will detail these aspects during my deposition.
Therefore, this interference outside his legal attributions, especially considering the function Mr. Gitenstein was invested with as the US ambassador to Romania, contradicts not only the Romanian law (its Criminal Code), but also the US Foreign Corrupt Practices Act (FCPA) — the Law covering the corruption practices abroad (which is why I will file a complaint with the competent judicial authorities in the US as well).
This law prohibits US companies from paying, or promising to pay, foreign dignitaries, foreign political parties or other persons or candidates for high positions in exchange for influencing the actions of a foreign dignitary in the exercise of his or her duties.
And yet, the work carried out by Mark Henry GITENSTEIN on behalf of Franklin Templeton Investments included all these instances of influence peddling; it is also covered by the scope of this particular act. Such details became public once the WikiLeaks transcripts were published.
This is due to the anti-corruption provisions of the FCPA, which prohibit the intentional use of any means through which the inter-state commerce is manipulated corruptly in favor of any offer, payment, promise of payment or of money authorization or anything else of value for any person, knowing that all or part of such money or valuables will be offered or promised, directly or indirectly, to a foreign dignitary in order to influence him in his official capacity, thus urging this foreign official either to perform or to not perform an act that violates his legal attributions or it provides an undue advantage in order to help in obtaining or retaining a business or to direct the said business to any person.
To prove all my assertions, I submit, in addition, the following documents regarding the facts described above:
- The WikiLeaks transcript referred by me earlier
- Address no. 243/07 .03 .2007 of the Supervisory Board of Fondul Proprietatea.
- Decision no. April 4/25, 2013, of the Proprietatea Fund’s OGG.
- Extract from the Prospectus of Fondul Proprietatea dated December 2, 2010, soliciting the admission to trading on the Bucharest Stock Exchange.
- Extract from Fondul Proprietatea’s website, attesting to the membership of the Committee of Representatives for Mr. Mark Henry GITENSTEIN.
- Mr. Mark Henry GITENSTEIN’s own CV, posted on the Fondul Proprietatea website.
I request that several witnesses must be questioned. I propose the following list:
*The President of Romania at that time, Mr. Traian Băsescu; citation address: Senate of Romania, Str. Calea 13 Septembrie 1–3, sector 5, Bucharest, Romania.
*The Prime Minister at that time, Mr. Emil Boc; citation address: Cluj Napoca City Hall, Str. Motilor nr. 3, Cluj County, Romania.
*Sfirîiala Ioana, the person who facilitated in court the takeover of the Fondul Proprietatea; citation address: SCP Sfiraiala and Associates, based in Str. Ion Bibicescu, Nr. 3, Sector 1, Bucharest, Romania.
*The members of the commission that conducted the selection process of the Fondul Proprietatea S.A. management company.
*Jeri Guthrie-Corn, Deputy Head of the US Diplomatic Mission in Bucharest on October 25, 2010, co-signatory of the cable ID 10BUCHAREST101, and currently Permanent Representative of the U.S. to the OECD with the citation address: 2, rue Andre Pascal 75775 Paris Cedex 16, France.
*The US Citizens recipients of the cable reprinted by WikiLeaks with the ID 10BUCHAREST101.
They are: Timothy F. Geithner (Secretary of the US Treasury on October 25, 2010) and Hillary Rodham Clinton (Secretary of the US State Department on October 25, 2010).
I submit this 5-page file togther with a 9-page file (Append.)
Ingrid Luciana Mocanu,
To: Madam Laura Codruţa Kovesi, Chief Prosecutor of the National Anticorruption Directorate