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THE GOVERNMENT OF RWANDA v. RWANDA WORKING GROUP
August 27, 2002
THE GOVERNMENT OF RWANDA, PLAINTIFF,
RWANDA WORKING GROUP ET AL., DEFENDANTS.
The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW RULING FOR THE PLAINTIFF
ON THE ISSUE OF CONVERSION; RULING FOR THE PLAINTIFF ON THE ISSUE
OF BREACH OF FIDUCIARY DUTY; RULING FOR THE PLAINTIFF ON THE
ISSUE OF PUNITIVE DAMAGES
The controversies in this case are distilled from events involving
political upheaval and its aftermath. The court must now resolve issues of
contract law and the fiduciary duties of legal counsel in the environment
of international affairs. Despite the dramatic circumstances that give
context to the dispute before the court, the question presented is
straightforward: with what expectations and under what strictures does
counsel perform on behalf of a client?
This case comes before the court following a two-day bench trial. The
current Government of Rwanda ("the plaintiff" or "the Republic") filed
its complaint on July 7, 1997 against the Rwanda Working Group ("RWG"),
an association allegedly hired to perform lobbying services by the
government that ruled Rwanda from April to July 1994 ("the interim
government"), Robert W. Johnson II ("defendant Johnson" or "Mr. Johnson"
or "the defendant"), an attorney for the predecessor government and an
alleged member of the RWG, and Aloys Uwimana ("Mr. Uwimana" or
"Ambassador Uwimana"), the predecessor government's ambassador to the
The plaintiff's claims of conversion and breach of fiduciary duty
against defendant Johnson and the RWG seek the return of $83,000 (the sum
of $28,000 paid by the interim government to Mr. Johnson and/or the RWG
under one contract and $55,000 paid to Mr. Johnson and/or the RWG under a
second contract) plus punitive damages. Compl. ¶¶ 56-65. At an
earlier stage of the litigation, defendant Johnson filed a motion to
dismiss for lack of subject-matter jurisdiction under Federal Rules of
Civil Procedure 12(b)(1) and 12(h), and the plaintiff filed a motion for
partial summary judgment. Defendant Johnson moved to dismiss the complaint
as to himself on the ground that the plaintiff's claims failed to satisfy
the $75,000 diversity jurisdiction requirement of Title
28 U.S.C. § 1332(a).*fn1 In turn, the plaintiff moved for partial
summary judgment against Mr. Uwimana and defendant Johnson.
On May 20, 2002, the parties began a two-day bench trial before this
court. Having now considered the testimony and evidence presented at
trial, the arguments and submissions of counsel, and the relevant law,
the court rules for the plaintiff on the issue of conversion and on the
issue of breach of fiduciary duty. In addition, the court rules for the
plaintiff on the issue of punitive damages.
In 1994, massive upheaval engulfed the country of Rwanda. On April 6,
1994, when Rwandan president Juvenal Habyarimana died in a plane crash
after 21 years in power, simmering political unrest erupted into civil
war. Def.'s Opp'n to Pl.'s Mot. for Partial Summ. J., Ex. 6 (citing 1995
DEP'T ST. COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1994, Rwanda
Section). Ethnic tension between the Hutu (85 percent of the population)
and the Tutsi (14 percent of the population) escalated when Hutu
extremists massacred hundreds of thousands of people, most of whom were
Tutsi. Id. The Rwandan Patriotic Front ("RPF"), the current government,
which is comprised largely of Tutsi's, halted the killings with a
military offensive that overtook the self-proclaimed Hutu leadership in
July 1994. Id. The ascension of the Rwandan Patriotic Front led to a
massive flight of Hutu civilians out of Rwanda for fear of Tutsi
The plaintiff in this action is the Republic, or the Government of
Rwanda, which succeeded what became generally known as the "Interim
Government." Joint Pretrial Statement ("Joint PTS") at 1. The Republic
brought this action against defendant Johnson, the RWG, and defendant
Mr. Uwimana, the former ambassador to the interim government, alleging
conversion and breach of fiduciary duty based on two separate contracts.
Id. The parties stipulated to the following facts: (1) the plaintiff, the
Republic, is the current legitimate Government of Rwanda; (2) Mr. Uwimana
was given until July 22, 1994 to return his diplomatic credentials to the
U.S. Department of State; and (3) Mr. Uwimana turned in his diplomatic
credentials/letter of credence to the United States Department of State
on July 22, 1994. Id. at 26. In addition, the parties stipulated during
the trial to the fact that Mr. Uwimana was the Ambassador of Rwanda until
about 5:00 p.m. on July 22 when he turned in his credentials.*fn2 Tr. at
Finally, both the Republic and Mr. Johnson agree that "Johnson came
into possession of $83,000 of the Republic's funds, pursuant to the July
8 [Memorandum of Understanding ("MOU")] and the July 22 Letter
Agreement." Joint PTS at 4. Under the first contract, the July 8, 1994
MOU, Mr. Johnson, on behalf of the RWG, received $28,000 from the
Republic for services. Id. at 20. Two weeks later, under the second
contract, the so-called "July 22 Letter Agreement," Mr. Uwimana
agreed to transfer $55,000 to Mr. Johnson. Id. at 21.
B. The Plaintiff's Claims
First, the plaintiff claims that the services it contracted for under
the July 8 MOU never took place. Joint PTS at 1. In addition, the
plaintiff alleges that the RWG consisted of the Washington World Group,
Inc., represented by lobbyist Edward van Kloberg, III, the Foreign Policy
Group, Inc., represented by lobbyist Timothy Towell, and Mr. Johnson.
Id. at 1-2. "The Republic has settled its claims vis-à-vis van
Kloberg and Towell for the sum of $26,200. Thus, the Republic seeks only
to recover from Johnson the sum of $1,800," i.e., the remaining portion
of the $28,000 under the July 8 MOU. Id. at 2.
Second, under the July 22 Letter Agreement, defendant Johnson, acting
as counsel to Rwanda, received $55,000 for legal services he was to
perform on behalf of the Rwandan Embassy and its diplomats and staff. Id.
at 2. The plaintiff claims that defendant Johnson knew that the $55,000
was transferred to him for ultra vires purposes: to assist in the
defection of Mr. Uwimana, his two subordinates at the Embassy, Boniface
Karani and Jean-Baptiste Rwakazina, and their families. Id. at 2. The
Republic alleges that despite having this knowledge, defendant Johnson
"nevertheless accepted the funds and expended them to his client's
detriment." Id. Moreover, the plaintiff asserts that Mr. Johnson
continued to convert the Republic's funds even after it became clear that
Mr. Uwimana's subordinates were no longer in need of defection services,
and that Mr. Johnson refused to return the $55,000 despite repeated
requests from the Republic to do so. Id. Consequently, the plaintiff
seeks to recover the full $55,000 from Mr. Johnson. Id.
In sum, then, the Republic claims that Mr. Johnson converted these
monies by using them for his own benefit against the interests of the
Republic and by refusing to return the funds to the Republic, and that,
in converting these funds, Mr. Johnson breached his fiduciary duties of
good faith and loyalty to the Republic. Joint PTS at 4. The plaintiff
also seeks interest that would have accumulated on the $83,000 since the
date of the alleged conversion (i.e., the date of transfer) and costs, as
well as punitive damages. Id. at 3.
C. The Defendant's Defenses
In terms of the July 8 MOU, defendant Johnson denies that he was a
"member" of the RWG and contends that the RWG was the name of a project
undertaken by the Washington World Group, Inc. Joint PTS at 2. Next,
defendant Johnson contends that, at the time of the July 22 Letter
Agreement, Mr. Uwimana was the recognized Ambassador from Rwanda to the
United States and thus possessed full plenipotentiary powers and the
authority to bind his government in contract. Id. Accordingly, Mr.
Johnson maintains that the tasks contained in the July 22 Letter
Agreement — which included securing immigration counsel on behalf
of Mr. Uwimana, his legation, and their dependents to seek territorial
asylum in the United States — continued to be a prudent and
reasonable mission in light of Mr. Uwimana's diplomatic responsibilities
to his legation, "coupled with the chaotic and dangerous situation on the
ground in Rwanda at that time." Id. at 2-3. Mr. Johnson denies that he
converted any of the funds "for his own benefit," and that, at all
times, Mr. Johnson acted according to the directives, desires and wishes
of the Government of Rwanda, "through the apparent and or actual
authority of the latter's ambassador to United States, Uwimana." Id. at
A. Mr. Johnson Was a Member of the RWG
1. Defendant Robert W. Johnson, II is an individual whose principal
place of business is at 1275 Pennsylvania Avenue, N.W., Washington, D.C.
Tr. at 18. In 1994, Mr. Johnson was a member of the District of
Columbia, Alabama, and Virginia bars and was subject to their rules of
professional conduct. Tr. at 18.
2. As of July 22, 1994, Mr. Johnson served as an attorney to the
Government of Rwanda. Tr. at 12, 141, 167.
3. Despite Mr. Johnson's protestations to the contrary, Mr. Johnson was
a member of the RWG, and not merely its lawyer. Tr. at 73, 94. Indeed,
Mr. Johnson admits that he did not "act as counsel to the Rwanda Working
Group." Tr. at 21.
4. In his pretrial motions and briefs, and at trial, Mr. Johnson
consistently denied that he was a member of the RWG. Tr. at 21. At
trial, however, both Mr. van Kloberg and Mr. Towell, the other two
undisputed members of the RWG, testified without any hesitation that Mr.
Johnson was a member of the RWG. Tr. at 74, 94. Mr. Johnson's attorney
did nothing to cast doubt on the testimony of Mr. van Kloberg or Mr.
Towell, and offered no evidence to substantiate the defendant's vague
allegations that these two witnesses were or are biased against Mr.
Johnson. Indeed, Mr. Towell referred to Mr. Johnson during his testimony
as "a friend of mine." Tr. at 94. The record is devoid of any evidence
that Mr. van Kloberg or Mr. Towell harbor or harbored a scintilla of
prejudice or ill will against Mr. Johnson.
5. The court finds Mr. van Kloberg's and Mr. Towell's testimony
credible and rejects Mr. Johnson's contention that he was not a member of
the RWG. Indeed, the court's disbelief of Mr. Johnson's testimony on this
important topic presages other assessments of his credibility.
6. On behalf of Rwanda, Ambassador Uwimana entered into a July 8, 1994
MOU with the RWG to provide lobbying services. Tr. at 112; Exs. 2, 28.*fn3
Mr. Johnson stated in a letter to the United States government that he
had signed the July 8 MOU "on behalf of the Rwanda Working Group." Ex.
7. Mr. Johnson insists that he served as counsel to the Washington
World Group, that the RWG was a Washington World Group "project," and
that the July 8 MOU was the Washington World Group's contract with
Rwanda. Tr. at 20, 21, 29.
8. These assertions have no support in the record. Mr. van Kloberg, the
principal of the Washington World Group, testified that he never saw the
July 8 MOU in July 1994 or until after this litigation commenced. Tr. at
73. In addition, Mr. van Kloberg testified that Mr. Johnson did not serve
as the Washington World Group's lawyer on the Rwanda project, but rather
was the "lead member" of the RWG. Tr. at 74. In this capacity, Mr. van
Kloberg explained that Mr. Johnson would "prepar[e] the documents, [and]
negotiat[e] with Ambassador Mr. Uwimana" while serving as "lead member"
of the RWG. Tr. at 74. Moreover, Mr. Johnson's July 19, 1994 letter to
Joseph E. Clarkson, chief of the Foreign Agent's Registration Act*fn4
registration unit, states that he signed the July 8 MOU "on behalf of the
Working Group." Ex. 28. The letter says nothing about the
Washington World Group. Ex. 28. Once again, these facts call into
question Mr. Johnson's truthfulness.
9. Ambassador Uwimana paid Mr. Johnson $28,000 directly with a Rwandan
Embassy check issued to the "Robert W. Johnson II Trust Fund" on July
13, 1994. Ex. 22A. Mr. Johnson deposited the check into his trust account
that same day. Ex. 22B. On July 13, 1994, Mr. Johnson also sent a receipt
in the form of a letter to the Rwandan Embassy, which states in its
entirety that "We are in receipt of a check for $28,000 for `the Rwanda
Working Group' for lobbying services." Ex. 13.
10. When asked whether the RWG ever performed any of the services
listed in the July 8 MOU for the Embassy of Rwanda, Mr. van Kloberg
stated that "[e]vents superseded us." Tr. at 72. He added that the RWG
members "worked individually making calls, seeing what was going on in
various areas that were germane to us as individuals. . . ." Tr. at 72.
Mr. van Kloberg's response demonstrates that because of the civil war
engulfing Rwanda, he, and by implication, the co-members of the RWG could
not perform the lobbying services contemplated in the July 8 MOU since
events in Rwanda had superseded the RWG members. Based on his testimony,
the court concludes that Mr. van Kloberg did not perform any of the
lobbying or other services contemplated by the July 8 MOU.
11. In addition, Mr. Towell testified unequivocally that he never
performed any lobbying services on behalf of Rwanda. Tr. at 97.
Specifically, he never attempted to convince the U.S. Department of State
to modify its hard-line on Rwanda, he never contacted the White House to
modify its position on Rwanda, he never contacted anybody in Congress to
modify Congress's position on Rwanda, and he never undertook any
activities that would prevent the Department of State from seeking to
freeze the Embassy's accounts. Tr. at 97. Based on his testimony, the
court concludes that Mr. Towell did not perform any of the lobbying or
other services contemplated by the July 8 MOU.
12. Mr. Johnson himself testified that to "the best of my knowledge,
there were no lobbying services performed" under the July 8 MOU. Tr. at
26. Mr. Johnson stated that his work pursuant to the July 8 MOU involved
"administration of the contract," disbursement of the $28,000, and one
conversation with a Riggs Bank employee "regarding whether there was a
hold place[d] by the State Department on any funds by Rwanda." Tr. at
23. Mr. Johnson explained that the conversation with the bank employee
was his effort to ascertain that any check issued by the Rwandan Embassy
pursuant to the contract would be "a good check as opposed to a bad
check." Tr. at 23-24.
13. Although Mr. Johnson testified that he was familiar with the
Foreign Agent's Registration Act ("FARA"), he never registered with the
U.S. Department of Justice as a foreign agent nor did he register as a
lobbyist under any other authority of law to lobby on behalf of Rwanda.
Tr. at 19, 40. Indeed, exhibit 29 demonstrates that Mr. Johnson received
a response to his July 19, 1994 letter from Mr. Clarkson, the FARA
official, informing Mr. Johnson that the government required him to
register as a lobbyist. Ex. 29.
14. Although all three RWG members admitted that no lobbying work was
done, Ambassador Uwimana was under the clear impression that the RWG
members had performed the work requested in the July 8 MOU. Tr. at
15. In addition, Mr. Johnson wrote a letter dated July 21, 1994 to
Ambassador Uwimana stating that the entire $28,000 "has been disbursed or
obligated for work performed thus far on various projects. . . ." Ex. 1.
Mr. Johnson added that "Mr. van Kloberg and Ambassador Towell have
maintained continuous liaison with State Department officials to provide
accurate information and to persuade the State Department to modify the
White House's hard line with respect to the closure of the Embassy and
the expulsion of the diplomatic staff." Ex. 1.
16. As noted previously, both Mr. van Kloberg and Mr. Towell testified
that they never did any such work. Based on Mr. van Kloberg's and Mr.
Towell's testimony that no such work ever occurred, the court deems Mr.
Johnson's statements in his July 21, 1994 letter to Ambassador Uwimana to
be blatant misrepresentations.
17. In sum, the only work Mr. Johnson performed pursuant to the July 8
MOU was to administer the contract, disburse the $28,000, and make sure
that the checks disbursing the $28,000 would not bounce. Based on the
record and all the witnesses' testimony about the July 8 MOU, the court
concludes that the three RWG members did not perform the lobbying
services contemplated by the July 8 MOU.
C. The July 22, 1994 Letter Agreement
18. On July 15, 1994, the Department of State issued a Note Verbale
stating that "the Department of State has decided to require for the
present the cessation of operations of the diplomatic mission [of the
Rwandan Embassy], other than activities relating to the closure of the
mission, effective July 22, 1994. . . ." Ex. 27. In addition, the
Department of State's Note Verbale ordered that "Ambassador Uwimana will
be required to depart the United States no later than July 22, 1994."
19. The Note Verbale directed that Mr. Karani could remain in the
United States to oversee the closing of the Embassy, the departure of all
other Embassy personnel, and the disposition of all property. Ex. 27. In
addition, the Department of State ordered all remaining members of the
mission and their family members, including Mrs. Uwimana and the
Ambassador's children, to leave the United States no later than August
14, 1994. Ex. 27.
20. Mr. Johnson testified that he almost certainly knew that the Note
Verbale had been issued either that same day or the next day, July 16,
1994, but in any event, he definitely knew of its issuance by July 21,
1994. Tr. at 33.
21. Accordingly, Mr. Johnson knew of the Note Verbale when he sent the
July 21, 1994 letter to Ambassador Uwimana proposing a set of
"ongoing/new projects" for a $55,000 fee. Ex. 1.
22. On the afternoon of July 22, 1994, Mr. Uwimana, in his official
capacity on behalf of Rwanda, agreed to the terms of Mr. Johnson's July
21, 1994 letter, which would serve as the blueprint for the July 22
Letter Agreement. Ex. 1. Mr. Uwimana also engaged Mr. Johnson to perform
legal services on behalf of the Republic. Ex. 1.
24. Under the July 22 Letter Agreement, Mr. Johnson was paid $55,000
with Rwanda funds. Ex. 23.
25. On July 22, 1994, Ambassador Uwimana approved a $55,000 check on an
Embassy account to the "Robert W. Johnson II Trust Fund." Ex. 23A. The
check was signed by Mr. Rwakazina, the First Secretary of the Rwandan
legation, and Mr. Karani, the Embassy's Counselor. Ex. 23A; Tr. at 55.
The payor's name on the check reads "L'Ambassade De La Republique
Rwandaise," thus clearly indicating that the monies being used to pay
Mr. Johnson belonged to the Rwandan government and not to Mr. Uwimana or
any other individual. Ex. 23A.
26. On July 22, 1994, Mr. Johnson signed a receipt for "lobbying
services." Ex. 14. He deposited the check into his trust fund that same
day. Tr. at 56.
27. In the July 22 Letter Agreement, Mr. Johnson explicitly represented
that he would provide asylum and other immigration services for Mr.
Uwimana and his family to stay in the United States, and would provide
the same services for Mr. Karani and Mr. Rwakazina, the two other
Rwandans in the Embassy. Ex. 1; Tr. at 56-57.
28. Under the July 22 Letter Agreement, Mr. Johnson told Mr. Uwimana
that he would have to use $30,000 out of the $55,000 to pay two
immigration attorneys ...