The Jeff Cumberbatch Column – A Clock Striking Thirteen

It was a bright cold day in April, and the clocks were striking thirteen.” –George Orwell -“1984”

I frequently use the phrase at caption to suggest that an event is not only extraordinary in itself but that it also calls into question the assumed objective reality of previous similar events. I mean, if a clock is going to strike thirteen when there are twelve hours only in the forenoon and the same number after noon in one day, then one is entitled to query what time was it exactly when that clock chimed eight times for instance.

I had cause to use the expression again last week when the news was reported that former Cabinet member in the recently outgone Democratic Labour Party administration, Mr Donville Inniss, had been arrested, charged and indicted in the US with the offence of money laundering the proceeds of a crime committed in Barbados. Of course, under the system of law that prevails in both of the relevant jurisdictions, an accused is to be presumed innocent until proven guilty beyond reasonable doubt.

Hence my retort was not occasioned by any assumption that Mr Inniss had indeed committed the offences that led to his indictment but, rather, by the allegation itself therein that that a local private sector concern had colluded corruptly with a state official to benefit unfairly from a commercial transaction. Muted whispers apart, to what extent is this prevalent in our society and for how long has it been? Or was this merely the misinterpretation of a perfectly legitimate transaction and thus simply an aberration in contemporary Barbados politico-commercial life?

So the hall clock struck thirteen, giving cause to wonder whether all public contracts over the years have been fairly won by private concerns. And to wonder whether other state officials have ever been corruptly active in the award of these contracts and whether it will even be possible to stymie the practice, if it does exist.

Much has been made of the fact that a responsible Minister was allegedly able to play such a primary role in the selection of an insurer for an enterprise governed by a board of directors. I should disclose in his favour, for what it is worth, that Mr Inniss was my line Minister for the three years [2015-2018] I served as Chairman of the Fair Trading Commission and never once in that time did he attempt to influence or interfere with any of the decisions of our Board of Commissioners, not even when we were called upon to deliberate on the compliance with the Fair Competition Act of the proposed purchase of BNTCL by a private concern; a transaction on which the administration of which he was a part then appeared to hang so much hope for Barbados’ short term economic recovery.

The indictment accuses Mr Inniss of money laundering. Essentially, this offence entails in layman’s terms, an attempt to launder “dirty” money by concealing the criminal source of its acquisition and by pretending that it has been lawfully acquired. The strict legal definition is not so limited, at least locally, however. According to section 5 of the Money Laundering and Financing of Terrorism (Prevention and Control) Act 2011-

(1) A person engages in money laundering where

(a) the person engages, directly or indirectly, in a transaction that involves money or other property or a benefit that is proceeds of crime; or

(b) the person receives, possesses, conceals, disposes of, or brings into or sends out of Barbados any money or other property or a benefit that is proceeds of crime.

For the purposes of this section, a person engages in money laundering where he knows or has reasonable grounds to suspect that the property or benefit is derived or realised directly or indirectly from some form of unlawful activity or, where the person is

(a) an individual other than a person referred to in paragraph (b), where he fails without reasonable excuse to take reasonable steps to ascertain whether or not the property or benefit is derived or realised, directly or indirectly, from some form of unlawful activity; or

(b) a financial institution or a non-financial business entity or professional, where the financial institution or non-financial business entity or professional fails to take reasonable steps to implement or apply procedures to control or combat money laundering.

So far as local law is concerned therefore, money laundering would appear to include any type of dealing with the proceeds of crime so that the perpetrator of any predicate offence from which money or other property is alleged to have been derived may be charged with the offence of money laundering even though he or she did not attempt to conceal its source but simply used those proceeds in an otherwise lawful transaction.

It is at least ironic that the predicate offence on which the Inniss indictment is based is located in the hoary Prevention of Corruption Act 1929 that was much scoffed at earlier this year when suggested as affording adequate protection against corruption. While this in no way to argue that that statute is indeed fit for contemporary purposes, it nevertheless provides for a criminal offence that may be utilized for any proceeds emanating from it to be treated as the basis of a money laundering charge.

I have followed with interest the public discussion of some of the legal issues pertinent to this matter. For instance, some have opined that Mr Inniss was arrested and charged in the US only because he had lost his diplomatic (sic) immunity together with his membership of Parliament on May 24. In fact an MP here enjoys no diplomatic immunity in respect of criminal acts, although he or she is entitled to immunity from arrest or imprisonment on any civil process while Parliament is in session except in certain limited circumstances -see section 5 (1) of the Parliament (Privileges, Immunities and Powers) Act.:

No member shall, during a session, be liable to arrest or imprisonment on any civil process, except for a debt the contraction of which constitutes a criminal offence.”

Another is the degree of calumny heaped, in my view unfairly, on the Commissioner of Police, Mr Tyrone Griffith, for his assertion on the matter, as reported in another section of the press, that “We only pursue matters where we have a complaint and, as far as I am aware, no report has been made to us….”

I do not need or intend to speak for the Commissioner, but I consider that his comments have been regrettably drawn out of context. The offence, on the basis of which Mr Inniss has been indicted in the US, is indeed criminal locally, but given its nature, there is no objective basis for the local constabulary reasonably to suspect that such an offence has indeed been committed here. Clearly, the indictment is based on intelligence to which the charging authorities in the US are privy. However, in the absence of this intelligence having been shared with the local authorities, itself an unlikely prospect since it would amount to an admission of criminal conspiracy from the party best able to do so, the Commissioner’s remarks are understandable. Perhaps the Commissioner could have expressed himself more clearly, but in light of the fact that the crime under the Prevention of Corruption Act is by nature victimless, the reference to a complainant was arguably legally and hopelessly misplaced.

Former Minister Donville Inniss Indicted for Money Laundering

Read the full document (INDICTMENT)

Monday, August 6, 2018

Former Member of Barbados Parliament and Minister of Industry Indicted for Money Laundering

Donville Inniss Allegedly Laundered Bribes through a Long Island Company

A three-count indictment was unsealed today in federal court in Brooklyn charging Donville Inniss, a former member of the Parliament of Barbados and the Minister of Industry, International Business, Commerce and Small Business Development of Barbados, with conspiracy to launder money and money laundering.  The charges stem from Inniss’s acceptance of bribes from a Barbadian insurance company in 2015 and 2016 when he was a public official.  Inniss was arrested Friday and was arraigned today before United States Magistrate Judge Julie Sneed in the Middle District of Florida at the federal courthouse in Tampa.  Inniss was released on a $50,000 bond.

Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brian A. Benczkowski, Assistant Attorney General of the Justice Department’s Criminal Division, and William F. Sweeney, Jr., Assistant Director-in-Charge, Federal Bureau of Investigation, New York Field Office (FBI), announced the indictment.

According to the indictment, between August 2015 and April 2016, Inniss engaged in a scheme to accept approximately $36,000 in bribes from high-level executives of an insurance company headquartered in Barbados (“the Barbados Company”) and launder that money through the United States.  In exchange for the bribes, Inniss leveraged his position as the Minister of Industry to enable the Barbados Company to obtain two government contracts.  Inniss concealed the bribes by arranging to receive them through a dental company and a bank located in Elmont, New York.  Barbados Company executives transferred the funds to the dental company using an invoice falsely claiming that the payments were for consulting services.  During the time of the charged conspiracy, Inniss was a legal permanent resident of the United States residing in Tampa, Florida and Barbados.

“As charged in the indictment, Inniss abused his position of trust as a government official by taking bribes from a Barbadian company, then laundered the illicit funds through a bank and a dental company located in the Eastern District of New York,” stated United States Attorney Donoghue.  “The Department of Justice will continue to hold accountable corrupt government officials here or abroad who use the U.S. financial system to facilitate their criminal conduct.”

“Donville Inniss allegedly used the U.S. financial system to launder bribes he received while serving as a government official in Barbados,” said Assistant Attorney General Benczkowski.  “These charges demonstrate the commitment of the Department and our law enforcement partners to hold accountable anyone who seeks to use our financial system to promote or launder the corrupt proceeds of their crimes.”

The charges in the indictment are merely allegations, and the defendant is presumed innocent unless and until proven guilty.

Assistant United States Attorney Sylvia Shweder of the Eastern District of New York’s Business and Securities Fraud Section, and Trial Attorney Gerald M. Moody, Jr., of the Criminal Division’s Fraud Section, are in charge of the prosecution.

The Defendant:

Age:  52

E.D.N.Y. Docket No. 18-CR-134 (KAM)