Confiscation Order - reasons.
[2018]JRC193
Royal Court
(Samedi)
18 October 2018
|
Before :
|
J. A. Clyde-Smith, Esq., Commissioner, and
Jurats Nicolle and Ramsden.
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The Attorney General
-v-
Michael David Reid
IN THE MATTER OF THE PROCEEDS OF CRIME (JERSEY) LAW 1999 AS MODIFIED AND
INCLUDED IN THE SCHEDULE TO THE PROCEEDS OF CRIME (ENFORCEMENT OF CONFISCATION
ORDERS) (JERSEY) REGULATIONS, 2008
AND
IN THE MATTER OF REGISTRATION OF AN EXTERNAL CONFISCATION ORDER IN
RESPECT OF THE REALISABLE PROPERTY OF MICHAEL DAVID REID
A. J. Belhomme, Esq., Crown Advocate.
JUDGMENT
THE commissioner:
1.
On 14th
September, 2018, the Court directed the Attorney General to instruct the
Viscount to carry enforcement of a US Forfeiture Order into effect and we now
set out our reasons.
2.
The
respondent is a serving prisoner at FCI Fort Dix, New Jersey, United
States. He pleaded guilty in the
United States District Court for the Middle District of Florida to one count of
conspiracy to commit money laundering and was sentenced on 27th May,
2009, to 168 months’ imprisonment, to be followed by a 36 month period of
supervised release. A Forfeiture
Order of US$1 million was made against him, representing the criminal benefit
of the respondent and his co-conspirators (“the US Order”).
3.
In brief,
the case involved identity theft and fraud on a large scale, the proceeds being
laundered through the United States, which took place from April 2005 to
October 2007, when the respondent was extradited from Bogota, Columbia to the
United States.
4.
A
representation by the Attorney General seeking to register and enforce the US
Order was first presented to the Royal Court on 7th April, 2017,
when it was adjourned until 19th May, 2017, to allow for personal
service of a copy of the representation and supporting papers on the respondent
in prison in the United States.
5.
On 2nd
May, 2017, the respondent wrote to the Court, complaining that the papers
served upon him by the US authorities on 27th April, 2017, were
unbound, in disarray and missing references to a list of lawyers in
Jersey. Accordingly, on 19th
May, 2017, the Court further adjourned the matter until 14th July,
2017, to allow the papers to be re-served.
The papers were re-served on the defendant by a deputy US marshal on 16th
June, 2017, following which the respondent did not make contact with either the
Court or the Law Officers’ Department. Accordingly, on 14th July,
2017, the Court ordered that the US Order be registered and enforced, subject
to a delay of 28 days, to allow for representations to be made to the Court by
persons holding any interest in the property in Jersey, comprising bank
accounts held by the respondent at the Royal Bank of Canada in the total sum of
US$746.89 and £50,358.92.
6.
Subsequently,
numerous letters were sent by the respondent under cover of e-mails from the
British Consulate, from which it appeared that the respondent had
unsuccessfully attempted to contact Crown Advocate Belhomme and others in
advance of the return date of 14th July, 2017, contesting the
registration of the US Order, and seeking legal representation by a Jersey
solicitor, Mr Robin Troy. Mr Troy
declined to represent him, and suggested that he approach the Jersey Legal Aid
office.
7.
In light
of these developments, the Attorney General notified the Viscount, and
requested that no further steps be taken to enforce the Order of 14th
July, 2017 until further notice. On
13th February, 2018, Crown Advocate Belhomme wrote to Commissioner
Clyde-Smith to apprise him of the developments, and he advised that the
Attorney General should formally apply to the Court for confirmation that he
can enforce the Order and fix a date for the hearing of the application, giving
due notice to the respondent.
8.
Accordingly,
Crown Advocate Belhomme wrote to the respondent on 6th June, 2018,
informing him that 16th July, 2018, had been fixed for a further
hearing. The letter stated, inter alia:-
“In summary, all that
is required from you at this stage is to consider the content of my letter
dated 13 February 2018 to Commissioner Clyde-Smith and to indicate (either
through counsel or by written communication in advance of the 16 July 2018
hearing) whether or not you wish to contest enforcement of the Court’s 14
July 2017 Orders.” (His underlining)
9.
The letter
went on to state that if he indicated he wished to oppose the enforcement of
the US Order, the Attorney General would fix a further date for a fully contested
hearing, but if he failed to appear, the Attorney General would apply forthwith
to enforce the US Order.
10. There followed difficulties on the part of the
US authorities in serving upon the respondent Crown Advocate Belhomme’s
letter of 6th June, 2018, and its enclosures, and the Fort Dix
Prison mail room had no record of receipt of his letter and enclosures by
post. Accordingly, a new date of 14th
September, 2018, was fixed for the hearing, and Crown Advocate Belhomme wrote a
further letter to the respondent, dated 6th July, 2018, and
explained the position again.
11. On 12th July, 2018, Crown Advocate
Belhomme received confirmation that the letter of 6th July, 2018,
notifying the respondent of the re-scheduled date of 14th September,
2018, and enclosing a copy of the previous letter of 6th June, 2018,
and attachments consisting of approximately 125 pages had been served upon the
respondent personally, and we have a copy of the acknowledgement of receipt
duly signed by the respondent dated 12th July, 2018.
12. There has been no response from the respondent,
who was not represented at the hearing on 14th September, 2018. The Legal Aid office has confirmed that
no application has been made by him for legal aid, and his last communication
was received on 10th August, 2017.
The respondent’s complaints
13. The respondent’s correspondence sets out
a number of complaints comprising claims of injustice and breaches of human
rights. The Attorney General
suggests that the various complaints may fairly be summarised as follows:-
(i)
The
respondent claims that he was illegally arrested and detained in Colombia on
the basis of a ‘note verbal’ (sic) from the US authorities which
stated that he was wanted to stand trial on charges of fraud and money
laundering but that the money laundering charges did not exist at that time.
(ii) He complains of alleged defects in the
subsequent extradition process. In
this respect he claims that the US authorities made an extradition request to
the Colombian authorities which was based on ten Counts of fraud and two Counts
of money laundering. The Colombian
Court ordered extradition to the US based on the money laundering offences
only. However, the defendant claims
that on arrival in the US he was indicted on all twelve Counts (ie, including
the ten fraud charges for which the Colombians had refused to extradite);
(iii) The respondent claims he was coerced and
blackmailed into entering into a subsequent Plea agreement which resulted in
his conviction on Count 11 (money laundering). In this respect he alleges that the sum
mentioned in Count 11 was arbitrarily increased by the US authorities from US$2
million (as shown on the extradition papers) to US$2.5 million (as shown in the
Plea agreement); and
(iv) He complains generally that his lines of
communication have been interfered with which has resulted in him being denied
his “day in Court”.
14. These complaints were aired by the respondent
before the US Court in connection with a Motion filed by him to vacate, correct
or set aside his sentence and were addressed by the US Court in its Order and
judgment of 15th February, 2011. In its judgment, the US Court considered
the respondent’s claim that the terms of the Colombian extradition treaty
with the US had been violated in that the respondent had been indicted in the
US on all twelve counts of the indictment. At pages 6 and 7 of its judgment, the
following appears:-
“Reid accuses the Court of
violating the terms of the Colombian extradition treaty and international law
by arraigning Reid on all twelve counts of the indictment. Reid accuses his counsel of being ineffective
for failing to challenge this alleged violation …..The terms of the
extradition and the limiting scope of prosecution set forth in the extradition
agreement was discussed at Reid’s change of plea hearing:
MR HANSEN:
…
Looking at para A-4 of the plea
agreement where we indicate that we will dismiss certain counts, we, in fact,
will dismiss all the counts we indicate that we are going to, however, Mr Reid
was in custody of the Colombian authorities and extradited to the United
States. As part of that
extradition, the Colombian Government required that only the two money
laundering counts be prosecuted, and that is Counts 11 and 12.
So, notwithstanding the fact that
we are dismissing the other counts as part of the plea agreement, in effect,
the only other count that he is actually facing here in the US would be Count
12, which will be dismissed under the plea agreement, also.
THE COURT: Okay. The bottom line being that all the
charges will be dismissed, but you understand this unwritten position that the
Colombian Government takes here that has limited what you can be prosecuted
for. In the end, you’re
looking at one charge.
REID: I do, sir, thank you.”
15. The US Court then continued:-
“The record is clear that the
Government, the Court, and Reid each understood, pursuant to the terms of the
extradition, that Reid was only facing prosecution as to Counts 11 and 12 and
that Count 12 would be dismissed as agreed in the plea agreement.”
16. The US Court went on to consider the
respondent’s claim that he was coerced into entering his guilty plea to
Count 11 by the Government’s offer not to proceed with the remaining
eleven counts on the indictment. At
page 8 of its judgment the US Court said this:-
“The record nullifies
Reid’s allegations of coercion and lack of understanding. As discussed above, Reid understood he
was facing prosecution as to Counts 11 and 12 alone, therefore by entering into
the plea agreement, he was benefiting by the government’s agreement to
dismiss Count 12, not the other ten counts of the indictment.
The record also demonstrates
Reid’s understanding as to the charges against him and the proceeding of
entering his guilty plea.”
17. At page 9, the US Court continued:
“The record is clear that
Reid had a full understanding of the charges against him and the consequences
of entering his guilty plea.
Regarding his allegation that
counsel failed to explain the role of the PSR at the time of the guilty plea,
his assertion meritless (sic). Reid
asserts that had he known the Court could have used relevant conduct against
him, he would not have entered his guilty plea and surrendered his right to
trial …. However, Reid does not provide any support for his allegation;
he does not even address the “unadmitted” relevant conduct to which
he refers.”
18. In concluding the Rule 11 colloquy, the Court
found:
“[Reid is] alert and
intelligent …. [he is] coherent, that [he] understand[s] the allegations
against [him] …. As well as the potential punishment on [his] charges
… It does not appear that there are any inappropriate promises or
inducements, nor does it appear that the Defendant has been threatened, forced
or coerced in any way into pleading guilty … [Reid’s plea is] being
entered freely and voluntarily, with an understanding of the
consequences.”
19. As to the respondent’s complaint
regarding the increase in the amount laundered (as set out in Count 11) the US
Court said:-
“Reid claims the Court and
the government violated his rights by changing the fact of his case after his
change of plea proceedings by holding him accountable for $2.5M instead of $2M
as charged …
Reid’s claims are vague
…
In his next claim that the
government or Court erred in holding him accountable for $2.5 million as
opposed to $2 million, his allegation has no merit. The facts Reid agreed to in
his plea agreement, and again at his change of plea hearing before this Court,
simply state he was involved in a conspiracy to fraudulently obtain over $2.5
million, not $2 million … thus his counsel cannot be held ineffective for
failing to challenge this meritless issue.”
20. For the sake of completeness, the
correspondence received from the respondent was forwarded by the Attorney
General to the US authorities for comment, and on 22nd September,
2017, they replied by e-mail, advising as follows:-
“According to the prosecutor,
Reid did in fact plead guilty to conspiracy to commit money laundering. He was sentenced on May 27, 2009. On May 17, 2010, he filed a Motion to
Vacate his sentence under 28 U.S.C. section 2255. Reid made several arguments in this
motion, including arguments related to the propriety of his extradition from
Colombia. On February 15, 2011, the
Judge entered an Order Denying the Motion to Vacate. The Court noted that pursuant to his
plea agreement, Reid expressly waived his right to appeal his sentence. In
accordance with the terms of his plea agreement, Reid did not file a direct
appeal, but instead filed the Section 2255 motion. The Court denied his Motion to Vacate on
all grounds, including those related to his extradition. The Court also held that he was not
entitled to a Certificate of Appealability, and thus he cannot appeal the
denial of his motion to vacate.”
21. Crown Advocate Belhomme contended and the Court
agreed that the various arguments raised by the respondent constitute an
attempt by him to re-litigate his US criminal case, and that the principal
claims made by him in the correspondence clearly received proper judicial
consideration in the US proceedings.
In this respect, he referred us to this extract from the judgment of Sir
William Bailhache, then Deputy Bailiff of 17th November, 2010, in
the case of In re Johnson [2010] JRC 206A at paragraph 13:-
“The requirement in Article
39(1)(c) to form a view as to whether enforcing the order in Jersey would be
contrary to the interests of justice should not in our judgment generally lead
to re-litigating the matters which have been decided by the Court in which the
External Confiscation Order was first made. It is clear that that Court was seized
of the issues which led to the making of the order, and it is before that Court
that all the evidence would have been produced. It would, other than in exceptional
circumstances, be inappropriate to anticipate the same evidence having to be
produced again in the Royal Court.
The rationale of these provisions is to enable the Courts of one
jurisdiction to give assistance to the Courts of the original jurisdiction in
order to prevent criminals benefiting from the worldwide financial system and
being able to hide their proceeds of crime for their benefit. One cannot of course anticipate all
factual circumstances which might arise in any hypothetical case, and it
therefore would be unhelpful to go further than saying that in our view the
risks of re-litigation seem to us to be small. Article 39(1)(c) requires the Court to
consider the interests of justice and the starting point subject to argument to
the contrary, would be that justice had been done at the time the external
confiscation order was made in the court exercising that jurisdiction.”
22. The only matter not addressed by the US Court
is the respondent’s complaint that his lines of communication have been
interfered with, which has resulted in him being denied his day in Court. In his last communication of 1st
August, 2017, he questioned whether it was possible that the US Department of
Justice might be playing games with his communications. However, numerous communications have
been received from the respondent, and there was no evidence that anyone was interfering
with his lines of communication in any way. In any event, as concluded above, his
communications simply sought to re-litigate complaints that had received proper
judicial consideration by the US Court.
23. In the circumstances, the Court concluded that
the respondent should not be given an opportunity to contest the registration
and enforcement of the US Order, and we directed the Attorney General to
instruct the Viscount to carry enforcement of the US Order into effect, in
accordance with the Court’s order of 14th July, 2017.
Authorities
In
re Johnson [2010] JRC 206A.