Assets Recovery Agency v Fogo and Others

• Jurisdiction: Jamaica
• Judge: Sykes J
• Judgment Date: 06 February 2014
• Neutral Citation: [2014] JMSC Civ 10
• Docket Number: CLAIM NO. 2013 HCV 06677
• Court: Supreme Court (Jamaica)
• Date: 06 February 2014

[2014] JMSC Civ.10

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2013 HCV 06677

Between

In The Mater of an Application by the Assets Recovery Agency for Court Orders Pursuant to Sections 32, 33 & 57 of the Proceeds of Crime Act, 2007

The Assests Recovery Agency

Applicant

and

Adrian Fogo

First Respondent

and

Patrick Fogo

Second Respondent

and

Kayann Fogo

Third Respondent

and

Patmars Clothing & Rental Co. Ltd

Fourth Respondent

and

Dawn Poyser

Fifth Respondent

and

Marie Mcleod

Sixth Respondent

and

Juliet Smith

Seventh Respondent

Charmaine Newsome and Susan Watson Bonner for the applicant

No respondents or legal representatives

PROCEEDS OF CRIME — APPLICATION FOR RESTRAINT ORDER — SECTIONS 2 (1), 5, 6, 16, 32 OF THE PROCEEDS OF CRIME ACT

Sykes J

1 This is a without-notice application for a restraint order under section 32 of the Proceeds of Crime Act (“ POCA”) preventing any of the named respondents or indeed anyone from disposing of or dealing with several parcels of real estate and personal property including accounts at financial institutions, motor vehicles and heavy duty equipment.

2 The essential nature of the case brought by the Assets Recovery Agency (“ARA”) is this. The ARA claims that it is conducting civil recovery and money laundering investigations under POCA in respect of properties held by the named respondents. It alleged that the total value of the properties is three hundred and ninety nine million, five hundred thousand dollars (JA$399,500,000.00). It is also alleged that these properties were acquired directly or indirectly from criminal conduct, namely drug trafficking and money laundering.

3 The investigation commenced on the basis of information received that the Mr Adrian Fogo and Mr Patrick Fogo (“the Fogos”) were engaged in drug trafficking and they funneled the proceeds of their activity to the other respondents who have been holding property coming directly or indirectly from the drug trafficking.

4 In respect of Mr Adrian Fogo, the allegation is that on July 25, 2012, he had delivered to him a suitcase with 2.2 kilogrammes of cocaine. The courier who took the suitcase to Mr Fogo was detected on entry into the United States and thereafter a controlled delivery of a now empty suitcase took place and both Mr Fogo and the courier were arrested and charged with conspiracy to import, importation and attempt to possess with intent to distribute a controlled substance. In March 2013, Mr Adrian Fogo made a plea deal with the United States authorities where he agreed to plead guilty to conspiracy to import and conspiracy to possess cocaine with intent to distribute (“the first indictment”).

5 After his arrest in July 2012, Mr Adrian Fogo was granted bail. It is alleged that while on bail and leading up to the plea agreement, Mr Adrian Fogo and Mr Patrick Fogo made arrangements to import cocaine into the United States of America. Arising from investigations the Fogos were indicted for conspiracy to distribute and possession of cocaine with intent to distribute (“the second indictment”).

6 In July 2013 Mr Adrian Fogo made another plea agreement and pleaded guilty to the two offences with which he was charged in July 2012. He has since been sentenced to eight years (the second indictment). The court will now address each type of property ARA wishes to be restrained.

7 In respect of Mr Patrick Fogo the evidence was that he was alleged to be involved in drug trafficking. The second affidavit filed on February 5, 2013 alleges that Mr Patrick Fogo pleaded guilty in December 2013 to drug trafficking and entered a plea deal with the United States authorities. Based on the evidence presented so far, this was his first conviction.

Real Estate

8 There are eleven parcels of real estate in this application. All are located in the parish of St James. All properties, except one, are in the names of the Fogos or the other named respondents. One parcel is in the name of the grandmother of the Fogos. Unfortunately, the grandmother is now deceased. All the real estate and any subsequent construction done whether by way of making a complete structure or by improving what was already there was done before any of the Fogos were charged with or convicted of any criminal offence.

Motor vehicles

9 All the motor vehicles including the heavy earth-moving equipment were acquired before any of the Fogos were charged with or convicted of any criminal offence.

Accounts at financial institutions

10 There is no evidence indicating when these accounts were opened.

Bases of the application

11 ARA has applied for the restraint order on a number of bases. The first basis is that the Fogos have a criminal lifestyle. The argument goes like this. The Fogos have now been convicted of drug trafficking. The offences for which they were convicted are Second-Schedule offences under POCA. According to counsel, the fact that the conviction was before a foreign court is of no moment. Counsel submitted that a conviction of a Second-Schedule offence anywhere in the world is a sufficient trigger event for a benefit hearing into whether the defendant has a criminal lifestyle.

12 As this court understands the submission, the advantage of classifying a person of having a criminal lifestyle is that it opens up the person to the risk of ARA saying that he has benefited from his criminal lifestyle over the previous ten years ending on the day he was convicted (section 6 (2)). The classification of having a criminal lifestyle carries with it the rebuttable presumption that the all property acquired in that ten years was from crime and that property would represent his benefit from his criminality. In other words, such a classification would enable ARA to go back ten years from the date of conviction and seek to recover the benefit from the presumed history of criminal conduct over that time period. ARA would not need to prove that the defendant benefited from the particular crime which triggered the benefit hearing.

13 From that has been said it should be obvious why ARA wants to say that the Fogos have a criminal lifestyle. ARA wishes to say that all properties acquired in the ten years leading up to and ending with the date of their convictions represent their benefit.

14 After the hearing into this matter was concluded on January 27, ARA decided to submit a second affidavit setting out what it considers to be relevant information. One of the things that stands out in the second affidavit is that a Special Agent David Jensen sent a memorandum, dated January 30, 2014, (three days after the application concluded) to Mr Justin Felice, Chief Technical Director of the Financial Investigations Division in which it is being said that he (Jensen) spoke personally to Mr Adrian Fogo and that Mr Adrian Fogo admitted that he was involved in drug trafficking in the United States for the past ten years. It is important to see what the first affidavit says.

15 The first affidavit filed on behalf of ARA states at paragraph 25:

I have received information from Homeland Security Investigations' Special Agent David Jensen and do verily believe that based on information he received from cooperating sources, the 1 ^st and 2 ^nd respondents have been involved in drug trafficking activities for over ten (10) years .

16 The second affidavit from the same deponent states at paragraph 2:

In furtherance of the investigation, I have received a copy of a letter dated January 30, 2014, from Mr David Jensen, Special Agent of the US Immigration and Customs Enforcement indicating that he debriefed a confidential criminal informant who worked with Adrian Fogo in drug trafficking. This informant told him that the 1 ^st and 2 ^nd respondents have been in drug trafficking activities for over ten (10) years. He stated that some of the information provided by the informant has been verified from public sources. Special Agent Jensen further stated in his said letter that he personally interviewed Adrian Fogo, the 1 ^st respondent on several occasions in 2013 and that he David Jensen was personally told by Adrian Fogo that he was involved in trafficking drugs to the USA for ten (10) years. This is the information to which I referred to in paragraph 25 of my 1 ^st affidavit .

17 The court makes three observations about this. First, in the first affidavit there is no evidence that Mr Adrian Fogo confessed to being a long-standing drug trafficker. The court's understanding from the first affidavit was that Special Agent Jensen had received his information from a reliable confidential source as distinct from hearing the confession from the mouth of Mr Adrian Fogo. Second, during the hearing the court made the observation that while the law permitted hearsay the court did not think that the permissible hearsay extended to the deponent being told that he was told by Special Agent Jensen who himself was told by a reliable source, who was unnamed, that Mr Adrian Fogo was a drug trafficker. Third, in examining paragraph 25 of the first affidavit it is clear that the noun information although used twice in the paragraph does mean the same thing each time it is used. Where it is used the first time in paragraph 25 information refers to what the deponent was told by the Special Agent. In the second instance information refers to what the Special Agent was told by the cooperating source. It will be recalled that in the paragraph the deponent said that the Special Agent got his communication from a third party. In neither instance does it mean that the Special Agent was told by Mr Adrian Fogo that he (Adrian) was a drug trafficker. If this is correct then it is unlikely that information has the meaning now being sought to be attributed to it in the deponent's second affidavit. There is a world of...