Seizing dons' assets: theory vs practice

Collin Greenland, Contributor

THE GLEANER'S editorial of June 10, which concurred with Professor Trevor Munroe's urgings on moving against the assets of dons, is laudable. With the greatest of respect to both Prof and The Gleaner, however, though well-meaning and worthy of debate, their sentiments demonstrate the difference between theoretical constructs, and the 'nuts-and-bolts' realities faced by persons actually involved in carrying out the deterrence, prevention, detection and examination of ill-gotten assets secured by gangsters over time.

In addition to the more sensational crimes as drug and gunrunning, gangsters - particularly the seasoned ones, who survive and achieve 'don' status - also secure their wealth through a plethora of lucrative white-collar crimes such as economic extortion, identity theft, insurance fraud, construction fraud, counterfeiting, tax evasion, credit card fraud, customs fraud, mail fraud, electoral fraud, money laundering, travel fraud, employment-agency scams, environmental-law violation and Ponzi/pyramid schemes, to name a few.

Unlike law enforcement and other government agencies, who have limited budgets, established dons have almost infinite resources to finance the best attorneys, accountants, bankers, government officials, custom's officer, law-enforcement officers and, in some jurisdictions, even the judiciary.

'Risk analyses'

In carrying out their 'risk analyses', most gangsters understand and even anticipate being investigated, arrested and convicted. So, they utilise the most perspicacious professionals that money can buy in their attempts to avoid, prevent, defend against or counter the seizure of their assets in the worst-case scenario of being caught. Most experienced dons in Jamaica probably are aware of and understand the Proceeds of Crime Act better that the average citizen, since it potentially affects them.

Added to that, many gangsters who live long enough to be elevated to don status, are usually themselves either extremely intelligent in the traditional sense, or are otherwise brilliantly gifted in other aspects. Recent press reports have highlighted, for example, that alleged gangster Christopher 'Dudus' Coke, did not only ace O-level mathematics from fourth form at Ardenne High, but also went on to tackle advanced maths which, in my days at high school, was the precinct of extremely bright maths geniuses intending to pursue careers in mathematics, actuarial science, nuclear physics, and such the like.

Whereas we share in the urgency to move against the assets of gangsters, perhaps instead of asking why the Financial Investigations Division (FID) has not garnished the assets of gangsters and other criminals, a better question may be: Are they equipped to do so? What, for example, is the FID's annual budget? How many, and what level of sophisticated methodologies/ techniques are they equipped with? For example, how many, and what level of forensic software/ hardware are they equipped with that can enable them to pursue cutting-edge data mining, graphology, polygraph, psychometrics, interviewing/interrogation techniques, kinesics, expert testimony, etc.

Training

Also, how many, and what level of training has the FID personnel been exposed to in regard to white collar-crime investigations that include fraud examination, cyber/computer fraud; legal elements of fraud, document examination; forensic software to name a few!

Until we can ascertain the answers to these questions, Prof and The Gleaner may be shining the spotlight in the wrong direction. It may very well be that the FID may have been under-resourced, and just allowed to exist, providing lip service by various administrations pretending to fight white-collar crime. The DPP or any other prosecutor can advise that despite the recent teeth given to investigators by the Proceed of Crime Act, garnering the evidence in complex cases, necessitate navigating through or around considerations such as admissibility, relevance, materiality, judicial notice, burden of proof and chain of custody. Forfeiture cases that may appear straightforward to us laypersons can be plagued with innumerable legal pitfalls - witness may be impeached, statements may be privileged, etc., etc. Forensic accountants, also, can advise that even with modern-day techniques, electronic evidence has to be effectively authenticated to the court's satisfaction, since data stored electronically can be so fragile.

For those who claim we cannot afford to properly finance a well-equipped FID, led by a dynamic professional, staffed by an inspired and handsomely compensated staff, think again. The Jamaican landscape has seen the proliferation of scandal (real, exaggerated or imagined) over the last few decades, transcending generations and political regimes, totaling $10.3201 billion, according to one newspaper. A fraction of this could have funded a world-class FID.

I agree with the Gleaner's editorial that the FID "clearly needs a new lease on life". The problem is, however, can it like an amoeba, reproduce itself? Even if it does, and remains a under-resourced, ill-equipped agency used as window-dressing, seizing the assets of dons in Jamaica will continue to be more theory than practice.

Collin Greenland is a forensic accountant