The Special Organized Crime Unit (SOCU) has started a process which could lead to millions in cash and other assets belonging to fugitive drug convict Barry Dataram, being forfeited, as outlined in the Anti-Money Laundering and Countering the Financing of Terrorism (AML/CTF) legislation.
Publicly there is little information available about Dataram’s wealth and how much of it has been frozen by law enforcement authorities.
Head of SOCU Sydney James recently indicated to Stabroek News that an investigation has started in this regard.
“We have launched an assets investigation… that is currently ongoing,” he said when contacted. He was asked whether SOCU had made any moves to seize Dataram’s assets in keeping with an anti-money laundering investigation.
Dataram, his reputed wife Anjanie Boodnarine, Kevin Charran, and Trevor Gouveia were before Magistrate Judy Latchman charged with the possession of 129.230 kilogrammes of cocaine (equivalent to 284 pounds) that were found on April 16, 2015 at the Lot 661 Silver Dam, Fourth Avenue, Diamond Housing Scheme house owned by Dataram. Last week, Dataram was found guilty and sentenced to 60 months imprisonment and fined $164 million. At the time he and Boodnarine were absent from court. Local law enforcement officials have since been able to establish that they travelled to Suriname illegally and have since left that country for an unknown destination.
Stabroek News has been informed that during the raid on the Diamond property, ranks of the Customs Anti-Narcotics Unit (CANU) found approximately $9 million and this was later handed over to SOCU so that an investigation could be initiated. According to multiple sources, this money is now the subject of a forfeiture investigation.
There are a number of provisions in the AML/CFT law that address the freezing of assets including bank accounts and the eventual forfeiture of assets of every description found to be connected to drug trafficking, money laundering, terrorism financing and trafficking of arms among other crimes.
The legislation speaks extensively about the freezing of assets and forfeiture. There were several amendments to the 2009 Act since the coalition government took office. Several amendments were made to the sections which dealt with the freezing and forfeiture of assets.
Back in January, Attorney-General Basil Williams had expressed confidence that Guyana now has the legal framework in place for freezing the assets of money launderers. This would also apply to those accused of committing any crime outlined in the anti-money laundering legislation.
In June last year, key amendments were first passed and subsequently even more changes which provide for, among other things, the freezing of assets were made. In addition the Anti-Terrorism and Terrorist Related Activities Act 2015 was passed.
Clause 6 of the amended anti-laundering bill altered section 71(1) of the Principal Act to enable the Director of Public Prosecutions (DPP) to make an ex parte application to the High Court for a freezing order.
Clause 4 of the bill amended section 68A (6) of the Principal Act to reduce the period from not later than seven days to not later than five days for the Director of Public Prosecutions to apply for the order.
The amendments also provide that an application for a freezing order may be made ex parte to a Judge in Chambers. The amendments also insert into section 68A, a new subsection to provide that when a Judge is considering granting the freezing order, the standard of proof required shall be on the balance of probabilities. Clause 4 also inserts a new sub-section that requires the Director of Public Prosecutions to immediately serve on the reporting entity a copy of the freezing order.
According to the legislation, if the court is satisfied that the property which was subject of the freeze order is “tainted” in respect of a serious offence for which a person has been convicted, it can be ordered that specified property be forfeited.
In determining whether property is “tainted” the court, in absence of evidence to the contrary, may infer that the property was used in or in connection with the commission of a serious offence if it was in the person’s possession at the time of or immediately after the commission of the serious offence for which the person was convicted or that the property was derived, obtained or realized as a result of the commission of the serious offence if it was acquired by the person before, during or within six years after the period of the commission of the serious offence for which the person was convicted and the court is satisfied that the income of that person from sources related to criminal activity that person cannot reasonably account for their acquisition of that property.
It stated that where the court orders that property, other than money be forfeited it is to be specified in the order the amount that it considers to be the value of the property at the time the order is made.
According to the law, once assets are forfeited they become the property of the state and are not to be disposed of, if not directed by the court. There are also provisions for the person convicted to pay the state an amount equal to the value of the property, part of interest instead of having it confiscated.
According to the legislation, the court may order that “tainted” property be forfeited as a consequence of a person dying or absconding in connection with a serious offence.
More provisions for forfeiture
Meanwhile, former attorney general Anil Nandlall, in an invited comment, told Stabroek News that the Narcotics and Psychotropic Substances (Control) Act itself provides for forfeiture of assets that were acquired from activities connected to narco trafficking and related activities.
That option, he said has now been buttressed, modernized and expanded by the provisions of the AML/CFT Act and its array of amendments and regulations. He stressed that Dataram’s case is the type of matter that SOCU was established to investigate and take the appropriate action.
“SOCU, like any other investigative agency, needs not wait on a conviction before it can commence an investigation. The AML/CFT structure created by the law is expected to generate data information and evidence which ought to be passed to SOCU, to verify, investigate or embark upon an evidence-gathering exercise; that ought to be an ongoing process,” Nandlall said. The former minister of legal affairs, who was instrumental in the creation of SOCU under the PPP administration, stressed that this is how SOCU was conceived to operate.
“If SOCU did not have such an individual [Dataram] under its surveillance then it shows how misplaced SOCU’s mandate has become and I blame the political administrators who have been kicking SOCU around like a political football, for SOCU losing its focus of what its mandate truly is,” he said.
Nandlall said that not only is government “uncertain” where to put SOCU – whether in the Guyana Police Force or out – “they have had SOCU pursuing sinister agendas.”
He cited the bungled surveillance operation last December which ended in a horrific crash that caused the deaths of three people, including an army intelligence officer. He also spoke of SOCU ranks investigating leaders of the PPP, raiding prominent business people’s homes and business premises at all hours of the morning and seizing people’s jewellery at the airport. Nandlall stressed that none of these activities have any known connection to drug trafficking, money laundering or terrorism; which are the three main focuses of SOCU.
Test
Nandlall believes that the anti-money laundering bodies that have been looking at Guyana may use Dataram’s case to test SOCU’s effectiveness and competence.
“Since Guyana is under review and since our AML/CFT legal framework has been viewed as being defective and delinquent by FATF [the Financial Action Task Force], I have no doubt that part of the scrutiny to which we are now subject will involve FATF paying close attention to cases of this type and how the AML/CFT apparatus will react,” he said.
According to Nandlall, one of the areas in which Guyana has fallen down in the past is prosecution and the utilization of the statutory powers post prosecutions. “Now that we have been placed under review I have no doubt that greater scrutiny will be exerted,” he said.
Poor man
Meanwhile, sources close to Dataram told Stabroek News that he doesn’t have much and is not as rich as people think he is. According to the sources, the house where the convict was found was actually a rented property.
Based on the information gathered by this newspaper, Dataram and his first wife never owned a home but were rather living with her relatives. “That man has no asserts… He was a tenant most of his life,” the sources said, adding that though at one time, Dataram had owned a house in an upscale neighbourhood, he had to sell it after he ran into “financial difficulties.”
The sources insisted that Dataram has no assets for SOCU to seize.
However, law enforcement officials told Stabroek News that it would be foolish for Dataram to be the only focus and not those close to him. It was pointed out that those involved in criminal activities, particularly drug trafficking. would go to great lengths to hide their connection to a property including putting houses and vehicles in the names of their relatives, close friends and even children.
Stabroek News was reminded of convicted drug trafficker Roger Khan who did not have much disposable assets though it was a known fact that “he had money”.
It is unclear how much SOCU has been able to gather on Dataram thus far. What is clear is that the money seized during the Diamond raid will no doubt become the property of the state.
Dataram in the meantime remains on the run.
