If US law enforcement had moved to seize assets owned by drug kingpin Roger Khan as they did in the case of Jamaican trafficker Christopher ‘Dudus’ Coke, it could have tested local laws on seizure and forfeiture of proceeds from crime, which Attorney General Anil Nandlall says are still “a work in progress”.
Last week, US District Judge Robert Patterson ordered that Coke, who pleaded guilty to trafficking cocaine and marijuana to the US, pay US$1.5 million over to the US Asset Forfeiture Unit based on his conduct. He also authorised the United States Attorney’s office to conduct any discovery needed to identify, locate or dispose of forfeitable property. At the same time, Jamaican law enforcement indicated that they had intensified their search for Coke’s assets, with Jamaica’s Deputy Commissioner of Police Glenmore Hinds saying that they were moving separately to confiscate some of Coke’s assets. Even before Coke was jailed in 2010, the Jamaican authorities had frozen assets from three companies he owned and assets also owned by his mother, girlfriend and a close friend.
The US did not move similarly against Khan, who is now a serving a 15-year sentence for drug smuggling, witness tampering and gun possession in the US, after striking a plea deal with prosecutors.
For his part, Guyana’s Attorney General Anil Nandlall said while he does not know to what extent Guyana has the type of legislation that can facilitate such seizures, he is aware that the authorities have started a process of propagating the different pieces of legislation in an attempt to “create a global conducive environment to pursue illegal acquired assets across international borders.”
He pointed to the Mutual Assistance in Criminal Matters Act, which along with other pieces of legislation, he said, is designed to achieve the objective of launching probes and going after assets owned by persons convicted in other jurisdictions. “It is a work in progress and I am not sure how far Guyana has gone. I know that Guyana is part of the international movement to create the statutory framework to deal with those types of endeavours,” Nandlall said in an invited comment.
Attorney and APNU MP Joseph Harmon, when asked specifically about Khan and the seizure of his assets, said that the first thing that the authorities would have to do is link the assets to him.
Although Khan and other traffickers like Peter Morgan and David Clarke have been convicted in the US, there has been little in the way of local investigations.
Harmon added that while there are laws in Guyana to seize assets, the court does not make use of them. He pointed out that people in the drug business find ways of hiding their assets in companies so you would not find assets in the name of a person who has been convicted. But, he noted, orders made in other jurisdictions can become orders here once they are entered in the local courts. He was one of the lawyers in two local cases involving persons convicted in the United Kingdom, which had seen officers from Scotland Yard coming to Guyana to seize local assets of the convicts. He said the officers did not find anything of substance but they had conducted some investigations here.
“Once an order is entered, what they would do is to seek to have the order operable in Guyana by entering it in the local courts and have it stamped. It would then be made a local order and they can go after the local assets,” he explained. “The law is there. As far as I am concerned we don’t use it enough to really give teeth to the act,” he added, while referring to the Narcotic Drugs and Psychotropic Substances Act, emphasising that implementation is important.
“But once a person is found guilty, I believe that the magistrates stop there and just impose a fine in some cases or they impose a jail sentence,” Harmon said, while suggesting that there needs to be penalties outside of imprisonment to serve as a deterrent. “It is a societal matter, if the society is sufficiently moved that they need to do something more than is happening, I believe that it can happen,” he said.
‘Nothing in his name’
The Narcotic Drugs and Psychotropic Substances Act also provides for the seizure of assets of persons convicted locally but with conditions. According to a source knowledgeable about the operation of the act, before a convicted person’s assets can be seized, their debts must be paid off and if they have dependent children they also have to be catered for. The source pointed out that he is aware of three cases involving local drug traffickers where the state had gone after their assets but there was not much success after their debts were paid. “In the end, the state would not have had anything, that was my understanding of it at the time and so they never worried with it after that,” the source said. He suggested that the law be amended to follow examples from other countries that are more “useful” to authorities.
The source, however, pointed out that unlike Coke, Khan had nothing registered in his name. Instead, most of what he owned was registered in other persons’ names. “The regular behaviour of drug men is that their assets are hidden in other people’s names. Roger Khan has a lot of properties around here but nothing in his name. That is a normal behaviour of drug men in Guyana and outside Guyana; not to have anything in their names and hence forfeiture and seizure would be nullified,” the source said, adding that persons who act as fronts should be under investigation by law enforcement as this could eventually result in charges of conspiracy or benefiting from the proceeds of crime.
There are other laws on the books intended to support international investigations and moves to seize proceeds from money laundering. In 2009, the same year Khan was convicted, the Mutual Assistance in Criminal Matters Act was passed for the second time and then Shadow Home Minister Deborah Backer noted that it would have enabled the government to seek information on the drug cases of Khan, Clarke and others. The act provides for the local central authority to request a Commonwealth country to assist in obtaining “evidence or information,” locating or identifying a person or thing, including by search and seizure if necessary, believed to be in that country. The Anti-Money Laundering and Countering the Financing of Terrorism Act 2007 is also a tool in the arsenal of local authorities for forfeiture of assets. The law was passed in May 2009, after a two-year parliamentary review had expanded its scope for the identification, tracking, freezing and forfeiture of the proceeds of money-laundering, among other offences. The act, however, does not apply retroactively.
Speaking with Stabroek News after the passage of that law, current Speaker of the National Assembly—and then AFC MP—Raphael Trotman had said in 2009 that without any evidence to initiate prosecutions here, the seizure and forfeiture of the local assets of drug smugglers and others who have pleaded guilty to drug trafficking and money laundering in the US would not be possible. However, he had argued that the guilty pleas should have prompted local law enforcement to start investigations.
Trotman, who had sat on the parliamentary special select committee that reviewed the legislation, explained that any move on the properties or assets of any of the persons convicted overseas is still dependent on willingness by local authorities to investigate and the provision of crucial evidence. Action, such as the freezing of assets and the seizing of property, could be taken, but only after investigations or in anticipation of the filing of legal charges here, he said.
“You can’t ipso facto say I have the right to take away your property in Guyana if you plead guilty [and] if you have not even gone as far as charging that person with a crime,” he said. “A person may plead guilty in a foreign court to knowingly trafficking in narcotics but that in and of itself should not be able to trigger the DPP seizing [assets] unless you can show that the assets here are a direct result of the crime to which that person has admitted.” He had noted that this demonstrated the need for documentation which indicated the proceeds of the crimes as well as identification of all persons who may have benefited. “Just to say you pleaded guilty is not going to be enough and I can see great resistance,” he said.
