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URL: http://www.bailii.org/je/cases/UR/2016/2016_128.html
Cite as: [2016] JRC 128

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Hearing (Criminal) - application for property restraint order imposed by the Court on 25 February 2014 to be discharged.

[2016]JRC128

Royal Court

(Samedi)

22 July 2016

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Fisher and Grime

Between

Doraville Properties Corporation

Applicant

 

And

Her Majesty's Attorney General

Respondent

 

IN THE MATTER OF IN THE MATTER OF DORAVILLE PROPERTIES CORPORATION AND IN THE MATTER OF AN APPLICATION FOR A PROPERTY RESTRAINT ORDER IN RSPECT OF THE RECOVERABLE PROPERTY OF MOHAMMED SANI ABACHA

AND IN THE MATTER OF THE CIVIL ASSET RECOVERY (INTERNATIONAL CO-OPERATION) (JERSEY) LAW 2007

Advocate P. G. Nicholls for the Applicant.

Advocate M. T. Jowitt for the Respondent.

contents of the judgment

 

 

Paras

1

Introduction

1-4

2

Background

5-11

3

The Default Judgment

12-15

4

The 2007 Law

16-25

5

Doraville's case in outline

26

6

Expert evidence

27-41

7

Doraville's case in more detail

42-45

8

The Default judgment has not "found" any relevant fact

46-52

9

If it has "found" anything, the US court has not "found" that the Doraville Assets are "tainted property"

53-76

10

Discussion and Decision

77

11

The International Background

78-94

12

Characterisation of proceedings

95-99

13

Was there a finding for the purposes of the 2007 Law?

100-121

14

Tainted property

122-133

15

The Verified Complaint

134-150

16

Property "used in ... unlawful conduct"

151-167

17

Article 1 of the First Protocol

168-176

18

Conclusion

177-178

judgment

the commissioner:

1.        The applicant ("Doraville") applies for the property restraint order imposed by the Court on 25th February, 2014, under Article 6(3) of the Civil Asset Recovery (International Co-operation) (Jersey) Law 2007 ("the 2007 Law") to be discharged. 

2.        The property restraint order was granted in support of asset forfeiture proceedings brought by the United States of America ("the US"), through its Department of Justice, in which on the 6th August, 2014, it obtained a Default Judgment in rem ("the Default Judgment") against inter alia all assets held in account number 80020796 in the name of Doraville located at Deutsche Bank International in Jersey ("the Doraville Assets" or "the Bank Account"). 

3.        The property restraint order was made in respect of the recoverable property situated in Jersey of Mohammed Sani Abacha and specifically over the Doraville Assets.  Under Article 7(5) of the 2007 Law an application to discharge such an order can be made by any person affected by it and in this case the application is made by Doraville and not by Mohammed Sani Abacha. 

4.        The application is made on the basis that the Default Judgment is not an external civil recovery order for the purposes of the 2007 Law and cannot therefore be registered or form the basis of a property restraint order under the 2007 Law. 

Background

5.        The application by the US for the Default Judgment was supported by a Verified Complaint (the source for this background) declared under penalty of perjury by Deborah LaPrevotte, a supervisory special agent for the Federal Bureau of Investigation, on 15th November, 2013.  It is alleged that during the military regime in Nigeria of General Sani Abacha, he and his son, Mohammed Sani Abacha, together with their associate Abubakar Atiku Bagudu (and others) embezzled, misappropriated, defrauded and extorted hundreds of millions of dollars from the government of Nigeria, which were then laundered through the US in breach of its money laundering laws. 

6.        Three schemes are described, of which two are most relevant for the purposes of this judgment.  Under the first scheme, known as the Security Votes Fraud, public funds were systematically embezzled from the Central Bank of Nigeria on the false pretence that the funds were necessary for national security.  The Verified Complaint talks in terms of billions of dollars being involved.  The proceeds were then transported into and out of the US in violation of US law and poured into bank accounts in London.  Under the second scheme, known as the Debt Buy-Back Fraud, Nigeria was defrauded of more than $282M by being caused to repurchase Nigeria's own debt for more than double what Nigeria would have paid to repurchase the debt on the open market.  The proceeds of these schemes and other criminal activity were used to purchase US dollar denominated Nigerian Par Bonds paid through New York and guaranteed by the US, on which very substantial sums of interest were earned.  The interest and proceeds of sale of the Nigerian Par Bonds were paid into the accounts of corporate entities registered in the BVI of which Doraville is one. 

7.        General Abacha became President of Nigeria through a military coup on 17th November, 1993, and held office until his death on 8th June, 1998.  His first son, Ibrahim Sani Abacha, participated in these frauds, but died in a plane crash in January 1996.  After his death, Mohammed Sani Abacha, who is General Abacha's second son, assumed his role and is alleged to have helped launder more than $700M in cash stolen directly from Nigeria's public coffers.  Abubakar Bagudu played an instrumental role in setting up and executing the complicated transactions used to launder the proceeds of the conspiracy.  He was a signatory and/or a corporate representative designated on many of the accounts concerned, in particular Doraville's bank accounts.  Doraville itself was incorporated on 2nd July, 1997. 

8.        On 18th May, 2003, Abubakar Bagudu was arrested in Houston, Texas on warrants issued by Jersey.  He subsequently entered into an agreement with Nigeria and Jersey to return more than $163M of Doraville's assets to the Nigerian government, in exchange for Jersey's withdrawal of its extradition request and the requirement for his return to Nigeria for possible prosecution.  He transferred $163M from the Bank Account to Nigeria which, according to him, represented his half of the assets of Doraville, the inference being that the remaining half were the assets of Mohammed Sani Abacha.  All of the Nigerian Par Bonds are believed to have been sold or redeemed by 2007, and the current value of the Bank Account is approximately US$287M. 

9.        It would seem that on 28th August, 2012, Nigeria made a request to the US for mutual assistance in recovering assets misappropriated from it pursuant to these various schemes and that in turn led to the proceedings which culminated in the Default Judgment being obtained on 6th August, 2014. 

10.      In separate proceedings issued by Nigeria in Jersey against Doraville on 11th May, 2016, shortly before the hearing of Doraville's application to discharge the property restraint order, it is asserted by Nigeria that on 14th July, 2014, Mohammed Sani Abacha entered into an agreement with it in full and final settlement of all claims between them and under which all assets held in the Bank Account would be transferred to Nigeria.  It is alleged in those proceedings that all of the assets within the Bank Account were misappropriated or otherwise unlawfully obtained from Nigeria by Mohammed Sani Abacha, Abubakar Bagudu and others and Nigeria seeks a declaration that the monies held in the Bank Account are held as constructive trustee for Nigeria, or alternatively that it is beneficially entitled to the same.  The US has applied to intervene in these proceedings and procedural directions have been given. 

11.      Advocate Nicholls, for Doraville, informed us that Doraville accepted that the funds within the Bank Account should be remitted to Nigeria and that the proceedings issued by Nigeria in Jersey would not be resisted.  Notwithstanding this, he declined, when pressed, to admit on behalf of Doraville, that the funds within the Bank Account constitute the proceeds of crime. 

The Default Judgment

12.      The US proceedings are proceedings in rem to forfeit assets alleged to be involved in money laundering transactions and in which it is the assets that are the defendants rather than a person.  The US government is required to notify each person whom it has reason to believe might contest the forfeiture by filing a claim.  It is accepted by Doraville that it was notified of the proposed forfeiture of the Bank Account in sufficient time to enable it to defend it and chose not to file a claim to contest the same. 

13.      The US government therefore applied for the entry of Default Judgment and for an order for the forfeiture of all of the assets listed as (a) to (g), which included under (a) "all assets held in" the Bank Account.  Quoting from the judgment of John D. Bates, a United States District Judge:-

"The United States now moves for entry of Default Judgment and an order of forfeiture to vest legal title and ownership to defendant assets (a)-(g) in the United States.  Based on the government's well-pleaded allegations in its Verified Complaint, the Court finds that defendant assets (a)-(g) were involved in transactions in violation of 18 U.S.C. sections 1956 and 1957, or are traceable to such property.  As such, defendant assets (a)-(g) are subject to forfeiture to the United States pursuant to 18 U.S.C. section 981(a)(1)(A) and Rule G.  Process was fully issued with respect to these defendant assets and returned according to law.  No response, answer, or defense remains interposed, and the United States' motion for entry of a Default Judgment and order of forfeiture is unopposed.  Hence, the Court concludes that the United States is entitled to a Default Judgment under Federal Rule of Civil Procedure 55 and to an order of forfeiture.  Accordingly, the United States' motion will be granted."

14.      The actual order is in these terms:-

"ORDERED that defendant assets (a)-(g) (identified in paragraphs 4(a)-4(g) of the Verified Complaint) are hereby FORFEITED to the United States of America, and that title to defendant assets (a)-(g) is vested in the United States of America, to be disposed of in accordance with the law; and that no right, title, or interest in defendant property shall exist in any other person;"

15.      The jurisdiction of the US District Court to forfeit the Bank Account, founded on breaches of US money laundering legislation by transactions made through the US, is not challenged by Doraville and no procedural irregularity is alleged.  The issue is limited to whether that Default Judgment qualifies as an external civil asset recovery order for the purposes of the 2007 Law. 

The 2007 Law

16.      This is the first occasion on which the Court has been asked to construe the 2007 Law, which apparently has no direct equivalent in any other jurisdiction.  It is described under its heading as a law "to enable Jersey to co-operate with other countries in external civil asset recovery proceedings and investigations and for related purposes."

17.      Under Article 6(3), the Court may make a property restraint order on the application of the Attorney General in respect of any recoverable property specified in the application, where (for the purposes of this case) the following requirements set out in Article 6(5) are met:-

"(5)     The requirements of this paragraph are that -

(a)       external civil asset recovery proceedings that relate to property in Jersey have been instituted in a country or territory outside Jersey;

(b)       the proceedings have not been concluded; and

(c)       it appears to the Royal Court that there are reasonable grounds for believing that an external civil asset recovery order may be made in the proceedings."

18.      It is accepted by Doraville that these requirements were met when the property restraint order was made by the Court. 

19.      Article 7 provides that upon the making of a property restraint order, all of the recoverable property specified in the order shall vest in the Viscount.  As previously mentioned under Article 7(5), any person affected may apply to discharge or vary that order. 

20.      Article 9 deals with the registration of an external civil asset recovery order:-

"Registration of external civil asset recovery orders

9. On an application made on behalf of the government of a country or territory outside Jersey, the Royal Court may register an external civil asset recovery order made in the country or territory if -

(a)       it is satisfied that at the time of registration the order is in force and not subject to appeal;

(b)       where the respondent in relation to the order did not appear in the proceedings in which the order was made, it is satisfied that he or she received notice of the proceedings in sufficient time to enable him or her to defend them; and

(c)       it is of the opinion that enforcing the order in Jersey would not be contrary to the interests of justice."

21.      No application has yet been made on behalf of the US to register the Default Judgment.  The central issue in this case is whether it is capable of registration. 

22.      What then is an external civil asset recovery order?  It is defined in Article 1 in this way:-

" 'external civil asset recovery order' means an order or other judicial authority, that -

(a)       is made, other than in the course of criminal proceedings, by an external decision-making body in a country or territory outside Jersey; and

(b)       specifies that property specified in the order is tainted property, or specifies an amount of money to be money to be forfeited or recovered in lieu of tainted property."

23.      Doraville accepts that the Default Judgment was made other than in the course of criminal proceedings and that the US District Court is an external decision-making body (as defined) outside Jersey.  Doraville also accepts that the order of the US Court specifies the property to be forfeited but it does not accept that it is "tainted property".

24.      "Tainted property" is defined in this way:-

"'tainted property' means property that has been found by an external decision-making body to have been -

(a)       used in, or intended to be used in, unlawful conduct; or

(b)       obtained in the course of, from the proceeds of, or in connection with, unlawful conduct."

This case turns on that definition. Doraville argues that the Default Judgment does not meet the definition of "tainted property".

25.      We should also mention the definition of "unlawful conduct" which is defined as meaning "the commission of an offence against a law of a country or territory, including Jersey."  It was not asserted that the conduct alleged in the US proceedings was lawful under US law. 

Doraville's case in outline

26.      Doraville argues that the Default Judgment does not meet the definition of "tainted property" and is not therefore capable of registration for three reasons:-

(i)        Being a Default Judgment, there has been no finding in relation to the property concerned, namely the Doraville Assets;

(ii)       If the Court concludes that the Default Judgment does contain findings of the sort required by the 2007 Law, then those findings do not amount to a finding that the Doraville Assets were "tainted property", within the meaning of the 2007 Law; and in any event;

(iii)      Registration would breach Doraville's rights under Article 1 of the First Protocol of the European Convention on Human Rights. 

Expert evidence

27.      Before dealing with these submissions in more detail, we will summarise the main thrust of the expert evidence received by the Court from Jeffrey E. Alberts, a partner at Pryor Cashman LLP and head of the firm's white collar defence and investigations practice, on behalf of Doraville and Stefan D. Cassella, a former federal prosecutor in the US Department of Justice and CEO of Asset Forfeiture Law, on behalf of the respondent. 

28.      There is a large measure of agreement between the experts.  The claim for forfeiture had been brought by the US pursuant to 18 U.S.C.A. (United States Code Annotated) section 981(a)(1) which is in these terms:-

"(a)(1) the following property is subject to forfeiture to the United States:

Any property, real or personal, involved in a transaction or attempted transaction in violation of section 1956, 1957 or 1960 of this title, or any property traceable to such property." (Our emphasis)

29.      Of the three sections referred to, the US relied principally on section 1957, which imposes a criminal penalty on any person who "knowingly engages or attempts to engage in a monetary transaction in criminally derived property of a value greater than $10,000 and is derived from specified unlawful activity."

30.      The term "specified unlawful activity" includes:-

(i)        The transportation, transmission, or transfer in inter-state or foreign commerce of $5,000 or more in securities or money that is known by the defendant to have been stolen, converted or taken by fraud;

(ii)       The receipt, possession, concealment, storage, sale or disposal "of securities or money of a value of $5,000 or more" or the pledge or acceptance "as security for a loan any goods ... or securities, of the value of $500 or more, which have crossed a State or the United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted or taken";

(iii)      The misappropriation, theft or embezzlement of public funds by or for the benefit of a public official. 

31.      The US also alleged a conspiracy under 18 U.S.C.A. section 1956(h) which imposes a criminal penalty on any person who conspires to commit any offences defined in section 1956 or 1957. 

32.      The US did not proceed under the narrower basis for forfeiture provided under section 981(a)(1)(C), namely where any property which constitutes or is derived from the proceeds traceable to violations of a number of specified sections or "specified unlawful activity."  It is clear that had it done so, it would have brought the Default Judgment firmly within the second part of the definition of "tainted property" of the 2007 Law, namely property "obtained .... from the proceeds of ... unlawful conduct."  It is the significance of the use of the wider section 981(a)(1)(A) with which Doraville's second argument is concerned, and in particular, whether a finding of the US Court that the assets within the Bank Account had been "involved in" US money laundering violations comes within the first part of the definition of "tainted property" in the 2007 Law, namely property "used in .... unlawful conduct".

33.      The experts were agreed upon the following:-

(i)        That a civil forfeiture action is an action in rem in which the US government is the plaintiff, the property is the main defendant and the persons with an interest in the property who object to forfeiture must intervene in the action by filing a claim. 

(ii)       A civil forfeiture action is not an action for damages, but rather is more in the nature of an action to "quiet title" to the property, meaning an action to resolve who has legal ownership of the property in question.  If the US prevails in a forfeiture proceeding, it obtains clear title to the property against anyone who filed an unsuccessful claim and against anyone who could have filed a claim but failed to do so after the US had provided notice of its forfeiture claim. 

(iii)      The entry of a Default Judgment in a civil forfeiture claim case does not involve a judicial determination of the facts of the case.  To the extent that a court considers the factual allegations in the complaint at all, the court deciding a motion for Default Judgment must accept as true all factual allegations in the complaint. 

(iv)      Because the entry of a Default Judgment does not involve the litigation or resolution of any factual issues, the defaulting party is not precluded by the doctrine of issue preclusion from litigating in another case based on the same set of facts any factual or legal issue that might have been raised in the forfeiture case. 

(v)       The entry of a Default Judgment does conclusively establish that any right, title or interest in the property that may have resided in the default party has been extinguished under US law and that the United States thenceforward has clear legal title to the property. 

(vi)      If certain procedural rules are satisfied in a timely manner, the US Court could set aside a Default Judgment and permit the original forfeiture action to proceed. 

(vii)     All forfeitures under US money laundering statutes are subject to the "Excessive Fines Clause" of the 8th Amendment to the US Constitution, namely whether the sought after forfeiture is "grossly disproportionate" to the gravity of the offence. 

(viii)    There are three categories of property that under section 981(a)(1)(A) are subject to forfeiture in a money laundering case (referred to by the experts as "theories") namely (1) the actual proceeds of the underlying crime that had been laundered, (2) the subject matter or corpus of the money laundering transaction (to include property acquired with the criminally-derived property, commingled property and property acquired with commingled property) and (3) any property external to the money laundering transaction that facilitated the money laundering offence by making it easier to commit or harder to detect.  "Commingled property" means criminally derived property that is commingled with property that is not so derived i.e. clean money. 

34.      Mr Alberts explains in his report that the US courts have identified two ways clean money can be involved in a money laundering offence and subject to forfeiture.  The first is if tainted money is commingled with clean money, and money is laundered out of the commingled account - all of the money laundered out of it constitutes the corpus of the money laundering, not just the tainted money (the second theory).  Secondly, property derived from legitimate sources can be used to facilitate money laundering (the third theory).   

35.      In terms of the scope of forfeiture under section 981(a)(1)(A) Mr Cassella gave this illustration:-

"24     To illustrate, suppose that a person deposited $100,000 derived from a scheme to defraud into a bank account, moved the money through a series of accounts where it was commingled with other funds, and used the commingled funds to buy a luxury automobile in violation of Section 1957.  And suppose that the person attempted to avoid suspicion when doing all of this by conducting the transaction through a business that gave an "aura of legitimacy" to the money laundering transaction.  In that case, the original $100,000 would be subject to forfeiture as the proceeds of the underlying offense being laundered;  the automobile would be subject to forfeiture as the subject of the Section 1957 violation (even though it was purchased with commingled funds); and the business would be subject to forfeiture as property used to facilitate the money laundering offense.  In sum, all of these assets would be subject to forfeiture as "property involved" in the money laundering offense."

36.      It is not suggested by either party that the US government in this case was seeking forfeiture under the third theory of clean money being used to facilitate the money laundering offences. 

37.      The experts agreed that the US courts differ as to the standard for entering a Default Judgment when no one files a timely and proper claim in a civil forfeiture action.  Some courts require only a showing that all potential claimants were given adequate notice of the forfeiture proceedings and the opportunity to file claims.  Others require a further showing that the government's Verified Complaint complies with all the pleading requirements in civil asset forfeiture actions contained in Rule G of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, including the requirement that the complaint set forth sufficient facts to support a reasonable belief that the government will be able to establish the forfeitability of the property by the preponderance of the evidence at trial, which is the standard that will overcome a motion to dismiss. 

38.      In this case, District Judge Bates referred in his judgment to the government's "well-pleaded" allegations in its Verified Complaint and in Mr Cassella's view, this indicates the court has applied the more rigorous standard that the complaint would, if true, support a reasonable basis to believe that the government would be able to satisfy its burden of proof at trial.  Indeed, in evidence, he said that the judgment was unusual in going further than necessary in granting a Default Judgment, which indicates to him that District Judge Bates had been specifically asked to do so. 

39.      Mr Alberts maintained that because some courts simply analyse whether the notice requirements were adhered to without conducting any analysis of whether the allegations set forth in the complaint are sufficient to survive a motion to dismiss, it is not possible to attach any significance to the court's statement that the complaint was well-pleaded.  He maintained that in entering the Default Judgment, the court did not determine that there was an adequate "actual" basis for the claims in the complaint, as that term typically relates to evidence of facts.  Rather, even if the court had reviewed factual allegations to assess whether they were sufficient to survive a motion to dismiss, it would have assumed the truth of these allegations, which would not give the court a basis to make a finding of fact. 

40.      There was also a difference between the experts as to the basis upon which the US government sought forfeiture in this case.  In the view of Mr Alberts, the US did not allege a statutory basis for forfeiture that required it to prove, or a court to find, that all of the funds in the Bank Account were the proceeds of unlawful conduct.  In his experience, prosecutors often bring forfeiture actions under both section 981(a)(1)(A) and section 981(a)(1)(C) and the decision not to do so supports the inference that the government in this matter did not seek to forfeit all of the funds as proceeds of the alleged offences.  Furthermore, he stated that there was no express allegation in the Verified Complaint that the funds in the Bank Account are subject to forfeiture on the grounds that all of the account funds were the proceeds of unlawful activity. 

41.      In Mr Cassella's view, where the proceeds of crime had been used to conduct a subsequent money laundering transaction, the government has the option of pursuing the forfeiture of those funds under either section 981(a)(1)(C), which authorises the forfeiture of the proceeds of certain crimes, or section 981(a)(1)(A) which authorises the forfeiture of property "involved in" money laundering.  Because the latter theory subsumes the former, it is often the vehicle of choice for the prosecutor.  Alleging forfeiture under the broader money laundering theory, a prosecutor believes that the property in question exclusively comprises the proceeds of another crime, but nevertheless preserves the option should the proof on that point fail, of seeking the forfeiture of the same property under one of the other money laundering theories.  It appeared to him from the allegations in the Verified Complaint that the prosecution made that strategic choice.  All of the allegations in the complaint support the theory that the property in question was the proceeds of the underlying crime, yet the prosecution relied on the broader theory of forfeiture available under the money laundering statute. 

Doraville's case in more detail

42.      In his closing submissions, and by way of overview, Advocate Nicholls argued that the only way the monies within the Bank Account would be sent to Nigeria would be if Doraville succeeds in its application.  It has entered into a binding legal obligation to that effect, and will not resist judgment being taken by Nigeria under its recently issued Order of Justice.  Whereas if the application fails and the Default Judgment is registered in due course, the monies would be paid into the Civil Asset Recovery Fund, established under Article 11 of the 2007 Law.  Under the terms of the Asset Sharing Agreement between Jersey and the US, monies within that fund may be shared between the US and Jersey, it being anticipated that in an ordinary case, the sharing will be in equal portions (Article 5 paragraph 3).  Article 4, we note, stipulates that where there are identifiable victims, consideration of their rights may take precedence. 

43.      However any funds paid into the Civil Asset Recovery Fund are dealt with, it seems clear to the Court that the principal aim of the proceedings brought by the US at the request of Nigeria both here and elsewhere is, consistent with what we understand would be its international obligations (pursuant to the international conventions we refer to later), to recover assets for the benefit of the people of Nigeria and what may really be driving both Doraville's application (Doraville itself apparently having no further interest in the funds in the Bank Account) and the proceedings recently brought by Nigeria is the question of the route by which the Doraville Assets should be returned to Nigeria, either directly or via Jersey and the US pursuant to the provisions of the 2007 Law.   

44.      How these monies would be dealt with under the 2007 Law and the Asset Sharing Agreement between the US and Jersey, if the Default Judgment is registered, is of no relevance, however, to the task which we have to decide and we comment no further upon it.  

45.      We turn, therefore, to the reasons put forward by Doraville in support of its contention that the Default Judgment is not an external civil asset recovery order, capable of registration under Article 9 of the 2007 Law. 

The Default Judgment has not "found" any relevant fact

46.      The definition of "tainted property" under the 2007 Law requires facts to be "found" by the foreign court.  The Bank Account cannot be deemed to be "tainted property" for the purposes of the 2007 Law unless the Court decides that the US court "found" that the Doraville assets were, in toto, either "used in" unlawful conduct or were the "proceeds of" unlawful conduct. 

47.      The term "found" should be given its usual legal meaning, namely "a decision upon a question of fact reached as a result of a judicial examination or investigation by a court, jury, referee, coroner, etc." (Black's Law Dictionary page 499). 

48.      This requirement is important, said Advocate Nicholls, because the 2007 Law provides the means whereby individuals in Jersey can be deprived of their property following proceedings in a foreign jurisdiction that they may not have taken part in and it is entirely proper that the 2007 Law requires that the foreign court addressed its mind to the evidence and finds the facts required to justify its conclusion that the property was "tainted property". 

49.      The experts were in agreement that the entry of a Default Judgment in a civil forfeiture case does not involve a judicial determination of the facts of the case and it was difficult for Advocate Nicholls to see how the respondent could now argue that the Default Judgment contained findings. 

50.      Mr Alberts had explained how a civil forfeiture claim begins with the prosecutor, in this case the Department of Justice, filing a Verified Complaint which sets out the basis upon which the prosecutor alleges that the US court can come to a reasonable belief that the US government would be able to prove its case at trial, referred to in Advocate Nicholls' closing submissions as the "reasonable belief standard", as required by Rule G.  It is important because it is the standard that will overcome a motion to dismiss a civil forfeiture claim. 

51.      Three points arise, Advocate Nicholls said, for the Court:-

(i)        The Verified Complaint at most contains allegations that may or may not be supported by facts.  This is clear from the first sentence of the Verified Complaint which is as follows:-

"Comes now the Plaintiff, the United States of America, through its undersigned attorneys and alleges, upon information and belief, as follows:"

As Mr Alberts explained:-

"It permits people who don't know the truth or falsity of their statement but have some basis for making a statement to make that statement."

All of the statements contained in the Verified Complaint must be read in the light of that qualification. 

(ii)       In granting a Default Judgment, the US court does not engage in a judicial examination of the alleged facts or law underlying a Verified Complaint.  Courts must even assume that implausible facts alleged in a Verified Complaint are true, unless the allegations are sufficiently fantastic to defy reality (Aschroft v Iqbal 556 U.S. 662 (2009)). 

(iii)      There is an inconsistency between different US courts as to the extent to which a court will even look at the allegations contained in a Verified Complaint when considering a Default Judgment (as set out in paragraph 37 above), but even where the more intense review is undertaken - the reasonable belief standard-- it means that any conclusion in a Default Judgment is at most an expression of the view (without any analysis of the underlying facts) that the government might, in due course, establish that the target property is subject to forfeiture under the applicable US law.  This is not a finding that the property is "tainted property" as required under the 2007 Law.  In short, when District Judge Bates granted the Default Judgment, at most he looked at the Verified Complaint and concluded that the Department of Justice had satisfied the pleading requirements of Rule G, meeting the reasonable belief standard.  This is not a finding that the Doraville Assets were used in or were the proceeds from unlawful conduct, but is at its highest a conclusion that there was a reasonable belief that in due course the Department of Justice may be in a position to put forward sufficient facts to establish that the assets were "involved in" a money laundering offence.  

52.      Advocate Nicholls referred us to the draft order that had been given to District Judge Bates.  The draft had included the phrase "The court finds that the Verified Complaint for Forfeiture In Rem states a factual and legal basis for forfeiture", a phrase that Judge Bates appears to have deleted from the Default Judgment, inferring that he did not consider himself to be making a finding of fact or law and that he did not consider at that stage that the Verified Complaint stated a sufficient factual and legal basis for forfeiture, a finding that was not required in order to meet the reasonable belief standard under Rule G. 

If it has "found" anything the US court has not "found" that the Doraville Assets are "tainted property"

53.      If the Court concludes that the Default Judgment does contain findings of the sort required by the 2007 Law, then Doraville's secondary argument is that those findings do not amount to a finding that the Doraville Assets were "tainted property", within the meaning of the 2007 Law. 

54.      "Involvement" under US law, as explained in paragraph 33(viii) above, is wider than the 2007 Law definition of "tainted property". Advocate Nicholls gave this illustration.  According to the Verified Complaint, there was a point in 1998, following the death of General Abacha, when all of the monies within the Bank Account were transferred to the Nigerian government voluntarily, leaving only $1,000 in the account, which was derived from the proceeds of crime.  Subsequently, further sums were deposited into the account, which commingled with the $1,000, but because of the wide definition of involvement under US law, there was no requirement upon the US to go any further and show that these further sums were the proceeds of crime, as they had been commingled with dirty money-that was sufficient.  He made this point by way of illustration, although, as we have found below, the Verified Complaint makes it clear that these further funds, which were deposited with the $1000, were from the purchase (using the proceeds of crime) and sale of Nigerian Par Bonds. 

55.      The task of the Court, Advocate Nicholls submitted, was simple:-

(i)        To consider the allegations in the Verified Complaint. 

(ii)       Assume that they are all true; and

(iii)      Determine the actual extent of those allegations. 

The question then was whether taking those allegations as true, the Department of Justice alleged that all of the Doraville Assets were the proceeds of crime.

56.      It was not for the Court to guess the "thrust and contours" of the Department of Justice's case, as submitted by Advocate Jowitt for the respondent, but to consider the precise wording of the allegations contained in the Verified Complaint, which would have been based on a review of the various materials and discussions that had taken place and would have been carefully worded in order to reflect that knowledge and not stray beyond it.  Accordingly, the Court should not assume that the Verified Complaint somehow implied any more than the statements it actually contains - in any event, implication and supposition cannot constitute a finding for the purposes of the 2007 Law. 

57.      Mr Alberts expressed the view in his evidence that the Department of Justice did not allege that all of the Doraville Assets were the proceeds of crime.  The Verified Complaint contained a broad allegation that the Doraville Assets were "involved in" money laundering transactions but the Department of Justice had not specified which of the three theories it relied on, namely the proceeds of crime, commingled funds or facilitation.  Failure to specify the theory under which the assets were said to be involved in money laundering was not surprising because at that stage of the process, before discovery (assuming a contested hearing), they would not know all the facts of the case and would not have access to all of the records.  Furthermore, it could not be said that all of the assets currently held in an account are the proceeds of crime in circumstances where the proceeds are said to go into an account, but there is no information as to subsequent transfers in or out of the account. 

58.      There are numerous gaps in the allegations brought by the Department of Justice.  A review of the Verified Complaint shows that, at most, at the time of the seizure (6th December, 2013,) only $US11M of funds in the Doraville Account were alleged to represent the proceeds of unlawful conduct.  Advocate Nicholls reached that conclusion in this way:-

(i)        In 1998 there was only $1,000 in the Bank Account representing the proceeds of crime. 

(ii)       Nigerian Par Bonds for the face value of $325M are said to have been transferred to the Bank Account on 13th December, 1999; those were alleged to represent the proceeds of various crimes.  Those bonds were sold between April 2000 and November 2006, yielding $149M. 

(iii)      $19M from the sales of payment adjustment warrants was paid into the Bank Account (alleged to represent the proceeds of crime). 

(iv)      The US Government implied (but did not clearly allege) that a further $6M in dividend payments on the payment adjustment warrants may have been transferred into the Bank Account. 

(v)       These sums add up to a specified sum of $174M that was alleged to be the proceeds of unlawful conduct.  There was also an unspecified amount for interest payments on the Nigerian Par Bonds, but in the absence of any pleading as to the amount in question, Advocate Nicholls submitted that it should not be taken into account. 

(vi)      $163M were said to have been transferred from the Bank Account to the Nigerian government in 2003, allegedly representing Abubakar Bagudu's half share of the Doraville Assets. 

59.      Even if one assumes that there are no other transfers from the account, which Advocate Nicholls says cannot be assumed, at the time of the Default Judgment based on the allegations in the Verified Complaint, only $11M of funds in the Bank Account were specified as representing the proceeds of unlawful conduct. 

60.      Doraville's argument is that the Department of Justice did not allege any basis as to why the remaining assets, which by implication are clean funds, should be forfeitable.  The US court may well have concluded that there was a reasonable belief that the government would be able to meet its burden of proof in respect of these remaining assets at trial, notwithstanding that at that stage, the Department of Justice had not articulated any basis upon which forfeiture of the entirety of the Doraville Assets could be ordered, and whilst that might be a perfectly proper way to approach civil forfeiture claims in the US, it is not sufficient for the purposes of the 2007 Law, which requires a finding that the Doraville Assets were, in toto, tainted property.  A conclusion (1) that a portion of the assets were tainted property and (2) that the remaining assets might be found to be the equivalent to tainted property in the future is not sufficient.  Consequently, at most, the 2007 Law allows the property restraint order to be continued for $11M i.e. the portion of the Doraville Assets that could be argued to have been "found" to be "tainted property". 

61.      Turning to the meaning of "used in" under the definition of "tainted property", in the 2007 Law, Advocate Nicholls pressed the Court to define the term in this way namely that (i) all the assets must have been used in order to achieve a particular purpose (viz. relevant unlawful conduct) and (ii) there must have been a sufficient nexus or proximity between that unlawful conduct and the assets.  The term, he said, had a narrower meaning than "involved in" which was the finding under the Default Judgment.  He referred to a number of Australian cases in which the phrase "used in" had been considered in the context of money laundering offences. 

62.      In Milne v The Queen [2014] HCA 4, the High Court of Australia was concerned with section 400.3(1) of the Criminal Code which defined "instrument of crime" in this way:-

"Money or other property is an instrument of crime if it is used in the commission of, or used to facilitate the commission of, an offence that may be dealt with as an indictable offence ..."

The Court said at paragraph 33:-

"For property to become an instrument of crime within the meaning of s 400.3(1) it must be "used".  An ordinary meaning of the verb 'use' is '[t]o make use of (some immaterial thing) as a means or instrument; to employ for a certain end or purpose.  That is the relevant ordinary meaning for the definition of 'become an instrument of crime' which involves the 'use' of property to serve a purpose, namely the 'commission of an offence' or 'to facilitate the commission of an offence'.  The relevant ordinary meaning of 'facilitate' in this case is '[t]o render easier the performance of (an action), the attainment of (a result); to afford facilities for, promote, help forward (an action or process). (Advocate Nicholls' emphasis).  

63.      In Director of Public Prosecutions v King [2000] 49 NSWLR 727; [2999] NSWSC 394 O'Keefe J reviewed a number of cases involving different approaches to the expression "used in or in connection with an offence" and concluded:-

"The over-arching principle that in my opinion can be extracted from the cases in relation to that part of the statutory definition of tainted property presently under consideration is that some activity connected with the relevant crime must have involved the utilisation or employment of the property with the aim or purpose of committing or furthering the commission of the crime in question.  In none of the cases referred to has the mere fact that the property in question has been the place of commission of the crime and nothing more been held to result in the property being tainted property within the meaning of the forfeiture statutes." (Advocate Nicholls' emphasis added). 

64.      The facts of DPP v King demonstrated that "used in" does not mean the same as "involved in".  In that case the defendant carried out a series of sexual offences against a minor on his yacht.  The Court held that the boat was not "used in" those offences for the purposes of the forfeiture laws.  However, Advocate Nicholls submitted that as a matter of common English, the boat was undoubtedly "involved in" those offences. 

65.      Advocate Nicholls gave a further example - if someone shoots another person, the gun is "used in" that offence, but the shirt which the bullet travels through is "involved in" the offence, but is not "used in" the offence.  

66.      In short, if something is "used in" an offence it will be "involved in" that offence; however, the fact something is "involved in" the offence does not also mean that it is "used in" that offence.  The starting point for the Court ought to be that the US term "involved in" is broader than the Jersey term "used in" and the question is whether the term "involved in" is also applied in a way that is broader than the term "used in".  If it is, the property restraint order should be discharged as against the remaining assets. 

67.      Doraville's case is that US law does allow the forfeiture of clean funds that have not been "used" to achieve the purpose of a violation of a federal money laundering offence.  What the experts refer to as the second corpus theory allows US courts to forfeit clean funds as being "involved in" a money laundering transaction even when those funds have not been "used" for the purpose of that transaction.  Advocate Nicholls referred to this explanation by Mr Alberts:-

"if tainted property is commingled with clean money, and money is laundered out of the commingled account - all of the money laundered out of the account constitutes the corpus of the money laundering (and is therefore forfeitable) not just the tainted money."

68.      Mr Alberts gave a number of examples of these sorts of cases in his report.  One example he referred to is United States v Funds on Deposit at Bank One, Indiana, 2010 WL 909092, (N.D.Ind. Mar. 9, 2010).  In that case $335,000 representing drug proceeds was deposited in a bank account and commingled with clean funds.  The commingled funds were subsequently transferred from that account by the account holder.  It did not matter to the US court whether those transfers were in order to insure the deposits (an entirely lawful purpose) or to facilitate money laundering.  The court held that all clean funds were forfeitable as:-

"each and every withdrawal, deposit and transfer moving the criminally derived funds constituted a transaction which violated the statute and supports forfeiture."

69.      Advocate Nicholls said this demonstrates that under the second corpus theory US courts order the forfeiture of clean funds even if those funds are not "used in" a breach of the federal money laundering statutes.  Clean funds that are transferred along with dirty funds for a legitimate purpose may (under the very broad construction of the term adopted by US law) be "involved in" an earlier money laundering transaction, but they are not used in that transaction. 

70.      Similarly, where both clean and dirty funds are used to purchase property, US courts have held that the entire purchased property is subject to forfeiture as the corpus of the money laundering transaction irrespective of whether the clean funds are used for the purpose of the money laundering transaction.  For example, in United States v Odom, No. No 03cr24-DCB, U.S. Dist. LEXIS 62351, the court held that property purchased with $53,000 in untainted funds and only $5,000 in crime proceeds was subject to forfeiture on the basis either (i) that it facilitated money laundering, or, (ii) even if it had not facilitated money laundering, as the corpus of the money laundering transaction.  Under the second corpus theory for forfeiture the portion of the property purchased with clean funds was effectively deemed to be "involved in" a money laundering transaction.  

71.      Another example is United States v Real Property known as 1700 Duncanville Road,90 F. Supp. 2d 737, 741 (N.D. Tx. 2000).  Again, that case involved property purchased with a mix of tainted and clean funds.  The Court stated that:-

"it is immaterial that claimants may have used untainted funds for its purchase."

72.      The second corpus theory cases are particularly pertinent, argued Advocate Nicolls, as Advocate Jowitt takes the view that the question for this Court is whether "used in" is broad enough to encompass US case law in which a mixed clean/dirty fund is forfeited as the corpus of a transaction.  He said the answer to that question is no. 

73.      Further, US courts order the forfeiture of clean assets under the third facilitation theory on the basis that they have facilitated money laundering transactions in circumstances where those clean assets have not, in any meaningful sense, been "used in" money laundering transactions.  Advocate Nicholls referred to this explanation from Mr Alberts:-

"Some US Courts have held that in order to establish a factual basis for finding that clean funds were used to facilitate a money laundering offence by concealing the origin of the tainted funds, it is sufficient for the government to prove that the clean funds and tainted funds were both deposited in the same account at the same time, resulting in "commingling" of funds."

74.      This means that under the third facilitataion theory the US government can forfeit the entire contents of bank accounts containing commingled funds even if there is "no direct evidence of intent to conceal" (see McGauley 279 F.3d at 70 (1st Cir. 2002). Thus, a finding by a US court that clean funds are "involved in" a breach of the federal money laundering statutes on the basis that such funds facilitated money laundering may, in practice, mean that clean funds were merely commingled with dirty funds.  Clean funds that are commingled with dirty funds may be "involved in" unlawful conduct, but they are not, without more, "used in" it.  

75.      Advocate Nicholls concluded that the US government can, under US law, forfeit property when the property has not been "used in" unlawful conduct as is required under the 2007 Law, and in these circumstances, a finding that the remaining assets were "involved in" transactions in violation of money laundering offences is not tantamount to a finding that those assets were "used in" unlawful conduct for the purposes of the 2007 Law.  The property restraint order should therefore be discharged, as against the remaining assets. 

76.      This is not to mean, he said, that a US forfeiture order based on involvement can never be enforced in Jersey.  It simply means that a finding of involvement is not in and of itself sufficient to satisfy the first limb of the definition of "tainted property".  It is open to the Department of Justice to:-

(i)        Make a narrow, focussed case in a Verified Complaint; and/or

(ii)       Bring a claim under 28 U.S.C.A. section 981(1)(1)(C) which focuses on the proceeds of crime; and/or

(iii)      Obtain factual findings from the US court which show that the property in question was "involved in" a crime by virtue of being used in it.   

But here it has not done so. 

Discussion and Decision

77.      We are not persuaded by the arguments advanced on behalf of Doraville, substantially for the reasons put forward by Advocate Jowitt, but before we go into those reasons, it is helpful to start with the international background to which Advocate Jowitt referred us. 

The International Background

78.      The 2007 Law was enacted having regard to the recommendations of the Financial Action Task Force ("FATF") and in anticipation of an International Monetary Fund ("IMF") assessment of Jersey against the standards set out in those recommendations (see the Projet at paragraph 5 and Hansard at page 57). 

79.      The sponsoring Minister envisaged that the legislation would apply to orders from a wide variety of States (including, expressly, the US).  The Projet says (paragraph 1):-

"Civil forfeiture schemes currently operate in a number of jurisdictions around the world including, at least, England and Wales, Scotland, Northern Ireland, Republic of Ireland, Switzerland, Italy, USA, Australia, South Africa and various Canadian provinces."

80.      The most important current FATF recommendations for present purposes are recommendations 4, 36, 38 and 40. In setting out extracts from the FATF Recommendations and from some of the conventions, as we do below, the distinction (which we have underlined) between property which constitutes the proceeds of crime and property that is used or involved in crime - referred to as "instrumentalities" - becomes apparent. 

81.      Recommendations 4, 36, 38 and 40 (of the current text) state:-

"B. MONEY LAUNDERING AND CONFISCATION

4. Confiscation and provisional measures

Countries should adopt measures similar to those set forth in the Vienna Convention, the Palermo Convention and the Terrorist Financing Convention, including legislative measures, to enable their competent authorities to freeze or seize and confiscate the following, without prejudicing the rights of bona fide third parties: (a) property laundered, (b) proceeds from, or instrumentalities used in or intended for use in money laundering....

Countries should consider adopting measures that allow such proceeds or instrumentalities to be confiscated without requiring a criminal conviction...to the extent that such a requirement is consistent with the principles of their domestic law.

G. INTERNATIONAL COOPERATION

36       International instruments

Countries should take immediate steps to become party to and implement fully the Vienna Convention, 1988; the Palermo Convention, 2000; the United Nations Convention against Corruption, 2003; and the Terrorist Financing Convention, 1999.  Where applicable, countries are also encouraged to ratify and implement other relevant international conventions, such as the Council of Europe Convention on Cybercrime, 2001; the inter-American Convention against Terrorism, 2002; and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, 2005.

...

38       Mutual legal assistance: freezing and confiscation

Countries should ensure that they have the authority to take expeditious action in response to requests by foreign countries to identify, freeze, seize and confiscate property laundered; proceeds from money laundering, predicate offences and terrorist financing; instrumentalities used in, or intended for use in, the commission of these offences; or property of corresponding value.  This authority should include being able to respond to requests made on the basis of non-conviction-based confiscation proceedings and related provisional measures, unless this is inconsistent with fundamental principles of their domestic law ...

...

40       Other forms of international cooperation

Countries should ensure that their competent authorities can rapidly, constructively and effectively provide the widest range of international cooperation in relation to money laundering, associated predicate offences and terrorist financing ..." (Our emphasis). 

82.      The international conventions referred to in recommendation 36 are relevant aids to the interpretation of legislation such as the 2007 Law (see, for example, SOCA v Perry [2013] AC 182 at paragraph 18) although ultimately, the Court is concerned with the interpretation of the domestic legislation and the actual words used by the legislature. 

83.      The United Nations Convention Against Corruption (the "Anti-Corruption Convention") was extended to Jersey on 9th November, 2009.  It was expressly referred to by the Attorney General in the States Assembly in the course of the debate on the draft that became the 2007 Law.  The FATF recommendations expect States both to become a party to and 'implement fully' those conventions (see recommendation 36 above). 

84.      The Anti-Corruption Convention contains the following Articles:-

"Article 1        Statement of purpose

The purposes of this Convention are:

(a)       To promote and strengthen measures to prevent and combat corruption more efficiently and effectively;

(b)       To promote facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery;

...

Chapter V

Asset recovery

Article 51 General provision

The return of assets pursuant to this chapter is a fundamental principle of this Convention, and States Parties shall afford one another the widest measure of cooperation and assistance in this regard.

Article 54        Mechanisms for recovery of property through international cooperation in confiscation.

1.        Each State Party, in order to provide mutual legal assistance pursuant to article 55 of this Convention with respect to property acquired through or involved in the commission of an offence established in accordance with this Convention, shall, in accordance with its domestic law:

(a) Take such measures as may be necessary to permit its competent authorities to give effect to an order of confiscation issued by a court of another State Party;

..., and

(c) Consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases.

Article 55  International cooperation for purposes of confiscation

1.        A State Party that has received a request from another State Party having jurisdiction over an offence established in accordance with this Convention for confiscation of proceeds of crime, property, equipment or other instrumentalities referred to in article 31, paragraph 1, of this Convention situated in its territory shall, to the greatest possible extent within its domestic legal system:

(a) ....: or

(b)       Submit to its competent authorities, with a view to giving effect to it to the extent requested, an order of confiscation issued by a court in the territory of the requesting State Party in accordance with article 31, paragraph 1, and 54, paragraph 1(a), of this Convention insofar as it relates to proceeds of crime, property, equipment or other instrumentalities referred to in article 31, paragraph 1, situated in the territory of the requested State Party.

Article 31, paragraph 1 provides:

Article 31. Freezing, seizure and confiscation

1.        Each State Party shall take, to the greatest extent possible within its domestic legal system, such measures as may be necessary to enable confiscation of:

(a) Proceeds of crime derived from offences established in accordance with this Convention or property the value of which corresponds to that of such proceeds;

(b) Property, equipment or other instrumentalities used in or destined for use in offences established in accordance with this Convention.

...

5.        If such proceeds of crime have been intermingled with property acquired from legitimate sources, such property shall, without prejudice to any powers relating to freezing or seizure, be liable to confiscation up to the assessed value of the intermingled proceeds." (Our emphasis). 

85.      Article 31 paragraph 5 above was the subject of some discussion to which we will come shortly. 

86.      The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and the Financing of Terrorism 2005 ("the Warsaw Convention") was extended to Jersey from 1st August, 2015. 

87.      The Warsaw Convention includes the following Articles:-

"Chapter 1 - Use of terms

Article 1 -        Use of terms

For the purposes of this Convention:

a         "proceeds" means any economic advantage, derived from or obtained, directly or indirectly, from criminal offences.  It may consist of any property as defined in sub-paragraph b of this article;

...

c         "instrumentalities" means any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence or criminal offences;

d         "confiscation" means a penalty or a measure, ordered by a court following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property;

...

Chapter IV - International co-operation

Section 1 - Principles of international co-operation

Article 15 - General principles and measures for international co-operation

1.     The Parties shall mutually co-operate with each other to the widest extent possible for the purposes of investigations and proceedings aiming at the confiscation of instrumentalities and proceeds.

2.     Each Party shall adopt such legislative or other measures as may be necessary to enable it to comply, under the conditions provided for in this chapter, with requests:

a.     For confiscation of specific items of property representing proceeds or instrumentalities, as well as for confiscation of proceeds consisting in a requirement to pay a sum of money corresponding to the value of proceeds;

b.    For investigative assistance and provisional measures with a view to either form of confiscation referred to under a above.

Section 4 - Confiscation

Article 23 - Obligation to confiscate

1         A Party, which has received a request made by another Party for confiscation concerning instrumentalities or proceeds, situated in its territory, shall:

a         enforce a confiscation order made by a court of a requesting Party in relation to such instrumentalities or proceeds; or

b         submit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such order is granted, enforce it.

...

5         The Parties shall co-operate to the widest extent possible under their domestic law with those Parties which request the execution of measures equivalent to confiscation leading to the deprivation of property, which are not criminal sanctions, in so far as such measures are ordered by a judicial authority of the requesting Party in relation to a criminal offence, provided that it has been established that the property constitutes proceeds or other property in the meaning of Article 5 of this Convention.

Article 5 provides:

Article 5 - Freezing, seizure and confiscation

Each Party shall adopt such legislative and other measures as may be necessary to ensure that the measures to freeze, seize and confiscate also encompass:

a         the property into which the proceeds have been transformed or converted;

b         property acquired from legitimate sources, if proceeds have been intermingled, in whole or in part, with such property, up to the assessed value of the intermingled proceeds;

c         income or other benefits derived from proceeds, from property into which proceeds of crime have been transformed or converted or from property with which proceeds of crime have been intermingled, up to the assessed value of the intermingled proceeds, in the same manner and to the same extent as proceeds." (Our emphasis). 

88.      The United Nations Convention Against Transnational Organised Crime 2000 ("the Palermo Convention") was extended to Jersey on 17th December, 2014.  It provides for mutual legal assistance in connection with the proceeds and instrumentalities of crime in similar terms to Articles 55 and 31 of the Anti Corruption Convention (see Articles 12 and 13 of the Palermo Convention).

89.      The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 ("the Vienna Convention") was extended to Jersey on 7th July, 1997.  It also envisages measures relating to the proceeds of crimes and to "instrumentalities used in or intended for use in .. offences.." (see Article 5).   

90.      Advocate Jowitt submitted that these international materials support at least the following propositions:-

(i)        The States parties to the above conventions have undertaken in International Law to co-operate as fully as possible with each other to ensure that assets that are relevantly connected to crime are taken away from those who hold them;

(ii)       This extends to co-operation to recognise and enforce civil forfeiture orders of the type with which the present proceedings are concerned;

(iii)      These obligations extend (broadly) to both assets produced by crime (proceeds of crime) and to assets which were not necessarily the proceeds of crime but were relevantly involved in crime or are intended to be relevantly involved in crime (instrumentalities);

(iv)      The most common definition of instrumentalities in the international materials describes instrumentalities as "used or intended to be used .." in crime.  However, the Anti Corruption Convention uses the phrase "involved in the commission of an offence" and "instrumentalities used in or destined for use in offences" interchangeably (see Article 54 paragraph 1, Article 55 paragraph 1 and Article 31 paragraph 1(b) which cross refer to each other).  It would appear to follow that the States parties regarded the phrases "involved in" and "used in" as meaning the same thing;

(v)       The Warsaw Convention defines (in Article 1) instrumentalities extremely broadly:-"...any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence".  This is consistent with the Anti-Corruption Convention's use of "involved in" and "used in" apparently interchangeably; and

(vi)      While some of the Conventions contain provisions dealing with the relationship between clean funds and proceeds (see Article 31 paragraph 5 of the Anti-Corruption Convention and Article 5 b of the Warsaw Convention), there are no such provisions which apply to instrumentalities.  

91.      Advocate Nicholls argued that Advocate Jowitt had failed to find a single example of a convention that adopted the phrase "involved in" in its operative section, the clear inference being that the international community did not accept that property can be confiscated as the instrumentalities of crime unless it is "used in" unlawful conduct.  This is not the case.  Article 54 of the Anti-Corruption Convention refers to mutual legal assistance pursuant to Article 55 with respect to property "involved" in an offence.  Article 55 applies to requests which include "instrumentalities referred to in Article 31, paragraph 1" and the instrumentalities referred to in Article 31, paragraph 1 are those "used in or destined to be used in".  That is to say "involved in" and "used in" are used interchangeably in the Anti-Corruption Convention as submitted by Advocate Jowitt. 

92.      Advocate Nicholls futher argued that Advocate Jowitt misunderstood Article 31 paragraph 5 of the Anti-Corruption Convention, which made it clear that intermingled funds are liable to confiscation "up to the assessed value of the intermingled proceeds".  Reference to "proceeds" is a reference, he said, to the "proceeds of crime" at the beginning of the Article and thus, this article sets out the relatively uncontroversial proposition that if dirty money is intermingled with clean assets, those assets are liable to confiscation up to the value of the intermingled proceeds, i.e. up the value of the dirty assets that were intermingled. 

93.      Advocate Jowitt responded by pointing out that this provision (and Article 5 b of the Warsaw Convention) is concerned with the "proceeds" part of these conventions.  There are no equivalent provisions in the "instrumentalities" sections of those conventions. 

94.      We accept that the international materials do support at least the propositions put forward by Advocate Jowitt as set out above.  Specifically in relation to Article 31 paragraph 5 of the Anti-Corruption Convention and Article 5 b of the Warsaw Convention, these provisions are concerned with clean assets which have been intermingled with the proceeds of crime and they limit confiscation up to, as Advocate Nicholls put it, the value of the dirty assets that were intermingled.  However, that does not apply to clean assets that have been used or involved in crime-instrumentalities.  There is no such limitation in either Convention to the confiscation of those assets.  They are tainted by such use or involvement and are susceptible to confiscation for that reason, notwithstanding their legitimate origins.  

Characterisation of proceedings

95.      These proceedings are civil proceedings and are solely concerned with the enforcement of the pre-existing rights of a foreign government against Jersey assets.  This characterisation of the proceedings is made in Jersey domestic law (see AG v Rosenlund and Another [2015] JRC 186 at paragraphs 39 and 41) and in the jurisprudence of the European Court of Human Rights ("ECtHR") - (see Rosenlund at paragraph 46 applying the reasoning of the ECtHR in Saccoccia v Austria 69917/01 5th July 2007).  In Saccoccia the ECtHR held that as far as civil proceedings before domestic courts are concerned, Article 6 of the Convention (the right to a fair and public hearing in the determination of a person's civil rights and obligations) extended to the execution phase of the proceedings (exequatur proceedings) but said this at paragraph 63:-

"However, as the Government rightly pointed out, in exequatur proceedings, the domestic courts are not called upon to decide anew on the merits of the foreign court's decision.  All they have to do is to examine whether the conditions for granting execution have been met."

96.      In our view the 2007 Law creates a relatively simple statutory scheme.  Any application under Article 9 to register an order will involve the Court considering the following issues in the following order:-

(i)        Is it an order or other judicial authority made other than in the course of criminal proceedings by a court or tribunal (or other body or person), who is authorised under a law of another country or territory to make orders of the type in (b) below;

(ii)       Does the order specify that property specified in the order has been found (by a relevant court or person) to have been:-

(a)       used in, or intended to be used in, unlawful conduct; or

(b)       obtained in the course of, from the proceeds of, or in connection with, unlawful conduct; OR

specify an amount of money to be money forfeited or recovered in lieu of property:

(c)       used in, or intended to be used in, unlawful conduct; or

(d)       obtained in the course of, from the proceeds of, or in connection with, unlawful conduct;

(iii)      Is the order in force and not subject to appeal;

(iv)      If the respondent did not appear in the foreign court, is the Court satisfied that he or she received notice of the proceedings in sufficient time to enable him or her to defend them; and

(v)       Is the Court of the opinion that enforcing the order in Jersey would not be contrary to the interests of justice?

97.      We are not at the stage of an application to register the Default Judgement under Article 9, but are concerned with whether the Default Judgement is an external civil asset recovery order as defined and therefore capable of registration.  Doraville contends that it does not comply with the definition of "tainted property" in that there has been no finding by the US District Court, but if there has been a finding it does not come within the first part of that definition. 

98.      The approach of the Court in Rosenlund, which was concerned with the interpretation of the Proceeds of Crime (Enforcement of Confiscation Orders)(Jersey) Regulations 2008, applies with equal force here.  In that case the Court said this at paragraphs 50 and 51:-

"50.    The purpose of the Modified law is to facilitate international cooperation in the recovery of assets from criminals. This statutory purpose is supported by important considerations of domestic and international public policy. Provisions based on this public policy are contained in a number of treaties. The interpretation which is most in accord with the statutory purpose is that which makes it easier for Jersey to cooperate and recover assets when requested to do so by foreign governments; that is to say, the interpretation contended for by the Attorney General.

51.      This approach is consistent with previous decisions of the Royal Court."

99.      We therefore start with the first issue of whether there was a finding for the purposes of the 2007 Law. 

Was there a finding for the purposes of the 2007 Law?

100.   The starting point is the wording of District Judge Bates.  He said this:-

"This motion is unopposed.  Upon careful consideration of the government's verified complaint, its pending motion, the affidavit in support of default, the relevant legal authorities, and the entire record herein, the Court will grant the government's motion for Default Judgment and enter an order of forfeiture."

101.   It is clear from the face of this that District Judge Bates had addressed his mind carefully to the evidence and law before him and reached a judicial decision based on the same.  We have no grounds for doubting the plain meaning of the words he used in his judgment. 

102.   The judgment continues:-

"The verified complaint alleged that the defendant assets were involved in an international conspiracy to launder proceeds of corruption in Nigeria during the military regime of General Sani Abacha ... The United States now moves for entry of Default Judgment and an order of forfeiture to vest legal title and ownership to defendant assets (a)-(g) in the United States.  Based on the government's well-pleaded allegations in its verified complaint, the Court finds that defendant assets (a)-(g) were involved in transactions in violation of 18 U.S.C. sections 1956 and 1957, or are traceable to such property..." (our emphasis). 

103.   As Advocate Jowitt submits, it is difficult to see how Doraville can succeed in arguing that the US court made no finding when District Judge Bates has expressly said that he did make a finding - a finding that the Doraville Assets were "involved in" the violation of US money laundering provisions.  We will come on to the question of what "involved in" meant. 

104.   We can see no reason to go behind the Default Judgement to question whether the District Judge Bates was justified on the evidence before him to reach that finding, in the same way that a court in considering the registration or enforcement of the foreign judgment does not go behind that judgment - see Showlag v Mansour [1995] 1 AC 431 at 440B and In re IMK Family Trust [2008] JLR 250 at paragraph 62.  The point was made in the case of USA v Abacha [2015] 1 WLR 1917 at page 1932G where Gloster LJ said this:-

"(v)    There is no suggestion in the 2005 Order that a respondent may reopen the merits of the external order or the jurisdiction of the foreign court to make it.  The court must, however, be satisfied that the criminal conduct is conduct which would either constitute an offence in any part of the United Kingdom or would have constituted an offence in any part of the United Kingdom if it had been committed here.  See section 447(8) of POCA."

105.   That case involved the same US proceedings with which we are concerned, but the UK authorities had indicated that they would not, at that time, assist by taking measures under the different regime of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005.  The issue was whether the English court could continue an injunction imposed at common law in aid of the US Default Judgment in rem - it was held that such a judgment was unenforceable at common law and there was no jurisdiction to grant an injunction in aid of it.  The case is of no assistance in the task of construing the provisions of the 2007 Law. 

106.   Advocate Nicholls submitted that the rules relating to the recognition or enforcement of foreign judgments had no application to the situation here, where the respondent is seeking to enforce a foreign order under a statutory scheme that contains its own requirements.  Absent that scheme, enforcement would be out of the question, because the US courts have no jurisdiction over Doraville or over its assets here in Jersey and the Default Judgment would not be enforceable under our customary law for the same reasons found by the English Court of Appeal in USA v Abacha. 

107.   In any event, he made it clear that Doraville was not seeking to go behind the Default Judgment and asking this Court to re-examine whether District Judge Bates was justified in making the order that he did.  The issue raised by Doraville is whether that judgment complies with the requirements of the 2007 Law. 

108.   The 2007 Law expressly contemplates the registration of an external civil assets recovery order made in default.  Article 9(b) is in these terms:-

"Where the respondent in relation to the order did not appear in the proceedings in which the order was made, it is satisfied that he or she received notice of the proceedings in sufficient time to enable him or her to defend them."

109.   Not to permit the registration of default judgments would, as Advocate Jowitt points out, severely emasculate the scheme for the recognition and enforcement of such overseas orders.  It would be an easy way to avoid the confiscation or forfeiture of Jersey assets; one would only have to ignore the overseas domestic proceedings and allow the overseas domestic court to enter judgment by default.  It would lead to the strange result that judgments based on stronger, uncontested cases would be more difficult to enforce in practice than judgments based on weaker, contested cases.  Furthermore, it would make this legislation unique among all these schemes for the recognition and enforcement of overseas civil judgments, which would require some kind of explanation or justification and, he said, none exists. 

110.   Advocate Nicholls accepts, as we believe he must, that in the light of Article 9(b), default judgments can be registered, but he maintains that in order to comply with the definition of "tainted property", that default judgment must still make factual findings.  He said that this was particularly important because the 2007 Law applies potentially to judgements from every legal system in the world, for example from Iraq or Afghanistan.  If such orders were made in the absence of the interested party, it cannot be right that this Court should give effect to the same without that foreign court making any findings.  

111.   We accept that under a default judgement there must be a finding, as that is what the 2007 Law stipulates, but given the structure of the 2007 Law and the requirement for any assets recovered to be paid into the Civil Asset Recovery Fund, then it seems to us that in practice applications are only going to be made by those countries which have civil forfeiture schemes and asset sharing agreements with Jersey (currently limited in number--see paragraph 79 above) which provides some safeguard, but the real safeguard against injustice lies with the provisions of Article 9(c), which provides that the Court will not enforce an order where it would be contrary to the interests of justice to do so.  

112.   In evidence, Mr Alberts informed us that the US District Court had the power to hold a further hearing in order to inquire into the facts, if so requested, but as a matter of US procedure, it would not be customary and it would not be necessary to do so. 

113.   We question what such a further hearing would achieve in the absence of a contesting party and when the US court must still accept as true all of the factual allegations before it.  Mr Alberts in his report pointed to the case of Aschroft v Iqbal (supra) a decision of the US Supreme Court which was concerned neither with a Default Judgment nor asset forfeiture, and in which it was made clear that in a motion to dismiss, the court must take the allegations as true, no matter how sceptical the court may be, unless the allegations are sufficiently fantastic to defy reality.  We are not in the territory here of the facts being alleged in the Verified Complaint being regarded as implausible let alone sufficiently fantastic to defy reality. 

114.   Because such a further hearing did not take place, Advocate Nicholls reaches the conclusion that at most the Default Judgment is an expression of the view of District Judge Bates that the reasonable belief standard under Rule G had been met, namely that in due course, the US government would be able to meet its burden of proof at trial. 

115.   It is helpful to break down the central part of the judgement of District Judge Bates, set out in paragraph 13 above, into its constituent parts:-

(i)        Firstly, he made a finding based on the Verified Complaint, that the Doraville Assets had been "involved in" transactions in violation of US money laundering legislation;

(ii)       Secondly, based upon that finding, he held that the Doraville Assets were subject to forfeiture pursuant to section 981(a)(1)(A) and Rule G;

(iii)      Thirdly, he held that due process had been complied with and that the motion for entry of default judgement was unopposed; and

(iv)      Fourthly, he then concluded that the US was entitled to default judgement and an order for forfeiture. 

116.   We are advised by the experts that as a matter of US law the default judgement does not constitute a judicial determination of the facts of the case-being a default judgement it necessarily does not involve the litigation or resolution of any factual issues.  That, it seems to us, is inherent in any default situation.  As a matter of general principle foreign civil default judgements will be enforced in this jurisdiction without the foreign court having investigated the merits of the case.  As Dicey, Morris and Collins on Conflict of Laws, 15th edition, says at paragraph 14-021:-

"Nor was it necessary that the judgement should be given as the result of investigation of the merits of the case; if the court were one which in the view of English law had jurisdiction over the defendant, and he failed to defend, the court's judgement might be enforced in England as fully as if he had defended the case on the merits".

117.   What is clear is that District Judge Bates made a finding on evidence that had been verified and in our view that suffices for the purposes of the 2007 Law.  It complies with the definition of the word "found" in Black's Law Dictionary (see paragraph 47 above) in that it is a decision upon a question of fact (the involvement of the Doraville Assets in money laundering) as a result of a judicial examination of the evidence (the Verified Complaint-which constitutes evidence notwithstanding the qualifications referred to in paragraph 51(i) above).  It is not a mere expression of the view of District Judge Bates or a mere decision that the threshold under Rule G had been met, as would be the case in a motion to dismiss.  Rule G was a threshold that had to be passed in order to make an order for forfeiture, but it is wrong to equate the finding to the threshold. 

118.   In relation to the threshold, we accept and prefer the view of Mr Cassella that District Judge Bates applied the more rigorous standard as contained in Rule G-indeed he makes express reference to it in his judgment. 

119.    We cannot infer from District Judge Bates apparently deleting wording from the draft order (see paragraph 52 above), that he did not consider himself to be making a finding of fact or law, as he clearly made such a finding.  Nor can we infer that he did not think the Verified Complaint stated a sufficient factual and legal basis for forfeiture, because he based his order for forfeiture upon it. 

120.   We conclude that District Judge Bates did make a finding based on the evidence and law before him that the Doraville Assets had been "involved in" transactions in violation of US Money laundering legislation.  That part of the definition of "tainted property" that requires a finding is therefore met. 

121.   It is, however, necessary to look at what he found in order to see whether that complies with the remainder of the definition of "tainted property".  The expression "involved in" derives from section 981(a)(1)(A) and is a term of art under US law.  Its meaning for the purposes of the 2007 Law is not clear on the face of the Default Judgement and the assistance of expert evidence as to US law and recourse to the Verified Complaint is therefore required.  

Tainted property

122.   When construing the definition of "tainted property" in the 2007 Law, the Court has had regard to the following matters:-

(i)        The legislature cannot have intended that these precise words would appear in the foreign judgment or order.  Many such judgments or orders will be in a language other than English.  In Bujak v Solicitor General [2009] NZSC 42 at paragraph 23, the Supreme Court of New Zealand said:-

"The substance of the order rather than specific words which may appear within it should determine whether or not it constitutes a 'foreign order'.  Looking at the Polish order as a whole ...;"

Our task therefore is to look at the substance of what District Judge Bates found and determine whether it meets the definition of "tainted property" under the 2007 Law.  

(ii)       The legislation envisages that the foreign court will have made its own decision as to whether the property is an instrumentality or the proceeds of crime as its own law defines those phrases;

(iii)      The legislative background and the international materials set out above, oblige States parties to afford each other as much assistance as possible in registering and enforcing each other's orders (Rosenlund supra);

(iv)      The international materials contain very wide definitions of both instrumentalities and proceeds of crime;

(v)       There is a significant public interest in enforcing overseas orders relating to corruption;

(vi)      It is not necessary that the words used in the 2007 Law be interpreted in the same way as those words might be interpreted in a purely domestic statute.  The question is always what the words mean in the particular statute in question: Rosenlund (supra). 

123.   The definition of "tainted property" has two parts.  Under the first part it means property "found" to have been "used in, or intended to be used in, unlawful conduct".  In broad terms, this first part is concerned with property which is not necessarily the proceeds of crime but the instrumentalities of crime.  The second part is concerned with property "found" to have been "obtained in the course of, from the proceeds of, or in connection with, unlawful conduct".  This second part is concerned with the proceeds of crime. 

124.   It must be the case that the first part of the definition adds something to the second part.  If property "used in" unlawful conduct has itself to comprise the proceeds of crime, then the first part of the definition becomes redundant.  Thus in the first part of the definition, the property "used in" unlawful conduct may comprise property from legitimate sources that is used in unlawful conduct. 

125.   This distinction is clear from the international materials we have considered above and was recognised by the Court of Final Appeal of Hong Kong in HKSAR v Wayland and Anor [2014] HKCFA 51.  That case concerned two conspiracies: a conspiracy to defraud the Stock Exchange of Hong Kong and a conspiracy involving circular payments aimed at concealing the first conspiracy.  The second conspiracy was charged as a conspiracy to launder money.  The conviction on the second conspiracy could only be upheld if the payments could be characterised as proceeds of crime.  They were made with clean money.  The Court of Appeal held that the payments could not be classified as proceeds of crime; they were instrumentalities of crime.  Because the Hong Kong legislation only criminalised the laundering of the proceeds of crime and not the laundering of instrumentalities of crime, the conviction had to be quashed. 

126.   The same distinction has been drawn in a number of New South Wales cases dealing with the offence in section 24 of the Financial Transaction Reports Act 1988.  That section makes it an offence to open or operate a bank account in a false name. 

127.   In Studman v Commonwealth Director of Public Prosecutions [2007] NSWCA 285, the New South Wales Court of Appeal was considering forfeiture provisions which it described as follows:-

"45     Section 94(1) of the Act precludes an order excluding property from forfeiture if the property is an 'instrument of unlawful activity'.  Property is an instrument of an offence and accordingly an instrument of an unlawful activity if the property is used, or in connection with the commission of an offence (s 329(2)(a), 329(4))."

It held that the bank balances were subject to forfeiture on the following basis:-

"48     To my mind there are no difficulties in the resolution of the factual issues in the present case.   The chose in action vested in the appellant was the direct result of the offence committed by the appellant when each account was opened.  That chose in action was the vehicle by which he operated the relevant accounts under a false name.  The property was both used in and in connection with the offences, making the bank accounts and the account with the broker instruments of unlawful activity."

128.   That judgment was followed by the Supreme Court of New South Wales in Re Commissioner of the Australian Federal Police [2012] NSWSC 1533, a case which concerned the same offence and where the assets in the bank account were otherwise clean.  Simpson J held:-

"13     I found it difficult to accept that lawfully obtained money, deposited in a bank account in a false name in breach of s24 of the FTR Act, could be said to have been 'derived or realised' (whether wholly or partly, directly or indirectly) from that offence, or from the subsequent offence of operating that account in a false name.

...

21       I was not satisfied that there were reasonable grounds to conclude that the funds in the bank account the subject of the present proceedings were, within s 329 the 'proceeds' of an indictable offence or offences: they were, in reality, the subject of the indictable offence(s);

22       Accordingly, I declined to make an order on the basis on which it was sought.

23       However, it was plain that the Commissioner had available to him an alternative route to achieving the same result.

24       Section 19 also requires that an order be made where there are reasonable grounds to suspect that the property is an instrument of a serious offence (s 19(1)(d)(ii)).  A 'serious offence' includes an offence against s 24 of the FTR Act if transactions on the relevant account total at least £50,000 in value during any six month period (see PoC Act, s 329).  The single deposit to which I have referred is sufficient to bring the operation of the account in question within that definition.  There were other transactions that also amounted to £40,000 over the relevant period.  There were therefore reasonable grounds to suspect that the operation of the account constituted a serious offence.

25       By s 392(2) of the PoC Act, property is an instrument of an offence if it is used in, or in connection with the commission of an offence.  Plainly, there was evidence sufficient to establish reasonable grounds for suspecting that the funds in the bank account in question were the instrument of a serious offence or serious offences  -  ie  the s 24 offences."

129.   Studman was also followed in another decision of the New South Wales Supreme Court concerning clean money: Commissioner of the Australian Federal Police v Mulder [2013] NSWSC 993. 

130.   Advocate Nicholls points out that Jersey criminal law (like English law) does not permit the confiscation of assets that are "used in" money laundering.  Instead Jersey law authorises the confiscation of assets by reference to the extent that the offender has benefited from crime (Article 3 of the Proceeds of Crime (Jersey) Law 1999).  However as Advocate Jowitt says in response, one cannot ignore the different wording used in the 2007 Law, wording which is consistent with Jersey's obligations under the international conventions to co-operate in the enforcement of foreign confiscation orders over property that constitutes both proceeds and instrumentalities.  We note that the Proceeds of Crime (Cash Seizure)(Jersey) Law 2008 does permit the forfeiture of cash that is tainted property using the same definition as in the 2007 Law. 

131.   It is worth interposing here to observe that the second part of the definition of "tainted property" - the proceeds of crime - in the 2007 Law appears wider than the definition of "criminal property" for a domestic laundering offence and wider than the definition of "benefit" for domestic confiscation purposes.  Neither of these definitions includes the words "obtained in the course of".  It is important to note, however, that the test does not require a tracing exercise as would be required in a civil case, see R v Keith and Ors [2010] EWCA Crim. 477 at paragraphs 30, 40-42 and 45- (criminal proceeds owed to defendant B by defendant A.  Before defendant A paid defendant B, he dissipated all the criminal money.  Defendant A sold shares and paid the clean proceeds to defendant B.  The Court of Appeal held that the share sale proceeds were the proceeds of the original offending). 

132.   The advice of the experts as to the scope of the finding that the Doraville Assets were "involved in" violation of US money laundering legislation is clear in that (to repeat) it includes three categories of property (referred to by the experts as "theories") namely (1) the actual proceeds of the underlying crime that had been laundered, (2) the subject matter or corpus of the money laundering transaction (to include property acquired with the criminally-derived property, commingled property and property acquired with commingled property) and (3) any property external to the money laundering transaction that facilitated the money laundering offence by making it easier to commit or harder to detect. 

133.   If the substance of the finding of the US District Court is that the Doraville Assets comprise the first theory, namely the proceeds of crime, then Doraville accepts that they would come within the second part of the definition of "tainted property".  Doraville's case is that only a small proportion of the Doraville Assets were found to comprise the proceeds of crime.  We need to turn therefore to the Verified Complaint. 

The Verified Complaint

134.    The Verified Complaint runs to 119 paragraphs over some 40 pages and a synopsis was attached to the respondent's skeleton argument. 

135.   Mr Alberts expressed the view that the US government did not allege a statutory basis for forfeiture that required it to prove, or a court to find, that all of the funds in the Bank Account were the proceeds of crime.  In evidence, he said this:-

"They [the DOJ] have not specified whether it is facilitation, whether it is corpus or whether it is proceeds.

Reading the complaint, you don't know, they don't specify which of those theories they are going to use. Just to be clear, we don't know, reading the complaint, whether the government will ultimately pursue a proceeds theory, a corpus theory or a concealment theory and that is part of the strength of using 981(a)(1)(A), which is a broader "involved in" basis for forfeiture, that includes all three of those sub categories." (Advocate Nicholls' emphasis added). 

136.   He also indicated that it could not be said that all the assets currently held in the Bank Account are the proceeds of crime in circumstances where the proceeds (in this case bond payments) are said to go into an account, but there is no information as to subsequent transfers in or out of the account:-

"In addition, you don't know whether after the bond payments were made into the account there were subsequent transfers out.  That doesn't mean that the government won't ultimately pursue a proceeds theory, and the government at the time that they drafted the complaint may have in fact believed that they were all proceeds.  When you read the complaint, you just don't know because they don't say that there were no transfers out of the account, they don't say there were no other transfers into the account."

137.   Advocate Nicholls argued that Mr Alberts' conclusion is consistent with a careful reading of the Verified Complaint:-

(i)        There is no statement anywhere in the Verified Complaint that all of the Doraville Assets were alleged to be the proceeds of crime.  There is an obvious explanation he said-the Department of Justice was not alleging that all of the Doraville assets were the proceeds of crime. 

(ii)       It is clear from the statement in the Verified Complaint that the Doraville assets "include the funds remaining after the transfer and liquidation of the [Nigerian Par Bonds]."  (Advocate Nicholls' emphasis added).  The word "include", he says, makes it clear that the US government was not alleging that all of the Doraville assets were traceable to the liquidation of the Nigerian Par Bonds. 

(iii)      There are numerous gaps in the allegations brought by the Department of Justice with the result that the sum total of the allegations do not amount to an allegation that all of the Doraville Assets in toto were the proceeds of crime.  For instance, no value is given for interest payments and no information as to when the bonds were sold.  There is no statement that no other monies were transferred in or out of the Bank Account.  In the absence of this detail, the US court could not have known how much of the alleged proceeds remained in the Bank Account and accordingly, would not have assumed for the purposes of the Default Judgment that all of the funds currently held in the Bank Account were the proceeds of crime.   

138.   Mr Cassella expressed the view that all of the allegations in the Verified Complaint supported the theory that the property in question was the proceeds of the underlying crime, even though the prosecution relied on the broader theory of forfeiture available under the money laundering statute, a theory which subsumed within it the narrower theory relating to the proceeds of crime. 

139.   We accept Advocate Jowitt's submission that, strictly speaking, Mr Alberts' views on the factual element of the Verified Complaint, and it would follow those of Mr Cassella, are not admissible as expert evidence.  This is because the Verified Complaint is written in English and comprises a factual account that members of this Court are perfectly able to read and to form their own view.  This was explored with Mr Alberts in evidence and whilst he accepted that the Court could reach its own view as to the factual case being presented under the Verified Complaint, he said it would need expert assistance on some of the words and phrases used which were terms of art (such as "laundered") and on certain aspects of US law, such as the tracing rules.   

140.   Accepting that caveat as to the limited extent to which US expert evidence is required in relation to what is a factual account, this Court has considered the Verified Complaint carefully and, accepting the synopsis of the respondent, finds that all of the Doraville Assets constitute the proceeds of crime and therefore come within the second part of the definition of "tainted property", namely property "obtained in the course of, from the proceeds of or in connection with, unlawful conduct."  That is what was being alleged in the Verified Complaint, which sought a forfeiture order over all, not part, of the Doraville Assets, and that is in substance what District Judge Bates found by the use of the words "involved in".  To the extent that the views of the experts are relevant, we agree therefore with, and prefer, the views expressed by Mr Cassella. 

141.   It is true that the Verified Complaint does not set out a complete audit of all of the funds through the numerous transactions which took place over many years and inevitably there are gaps, but the overarching allegation is contained in paragraphs 1, 2 and 3 in these terms:-

"1       This is an action in rem to forfeit five corporate entities and more than $500 million in other assets involved in an international conspiracy to launder proceeds of corruption in Nigeria during the military regime of General Sani Abacha.  General Abacha, his son Mohammed Sani Abacha, their associate Abubakar Atiku Bagudu, and others embezzled, misappropriated, defrauded, and extorted hundreds of millions of dollars from the government of Nigeria and others, including through the three criminal schemes described herein.  They then transported and laundered the proceeds of those crimes through conduct in and affecting the United States.  The defendants in rem are subject to forfeiture as property involved in money laundering offenses in violation of U.S. law.

2         As alleged herein, in one scheme, General Abacha, together with Mohammed Sani Abacha, Bagudu, and others, systematically embezzled public funds worth billions of dollars from the Central Bank of Nigeria (CBN) on the false pretense that the funds were necessary for national security.  After causing the CBN to disperse the funds, often in cash, General Abacha and Bagudu then moved the funds overseas, including through U.S. financial institutions (the "Security Votes Fraud").  In another scheme, General Abacha and his finance minister, Anthony Ani, caused the government of Nigeria to purchase non-performing government debt from a company controlled by Bagudu and Mohammed Abacha at vastly inflated prices, generating a windfall of over $282 million for Mohammed Abacha and Bagudu through U.S. financial transactions (the "Debt Buy-Back Fraud").  Finally, in the third scheme alleged herein, General Abacha and his associates extorted more than £11 million from a French company and its Nigerian affiliate in connection with payments on government contracts (the "Dumez Extortion").

3         Proceeds of the Security Votes Fraud were transported into and out of the United States in violation of U.S. law and pooled into bank accounts in London, where they were used to purchase hundreds of millions of dollars of U.S. dollar-denominated Nigerian bonds.  The bonds generated tens of millions of dollars in interest paid through Citibank in New York and guaranteed by the United States; in effect the conspirators lent money stolen from Nigeria back to Nigeria with zero risk and at enormous profit.  By 2007, the bonds were liquidated, and the proceeds from the sale of the bonds, together with the proceeds of the Debt Buy-Back Fraud and Dumez Extortion, were deposited into the defendant accounts, using the defendant corporate entities and through U.S. financial transactions, as described herein.  The defendant corporate entities are registered in the British Virgin Islands, and bank accounts and investment firms holding the other defendant assets are located in the United Kingdom, France, and the Bailiwick of Jersey."

142.   Doraville's argument that the proceeds of these fraudulent schemes within the Bank Account are limited to some $11M requires District Judge Bates and this Court to ignore the overarching nature of the allegations and specifically the (admittedly in part unquantified) interest payments on the Nigerian Par Bonds, which the Verified Complaint illustrates would have been large.  We can see no reason to do so. 

143.   There is no hint in the Verified Complaint of Doraville having any purpose other than that of laundering these large sums of money misappropriated from the Nigerian government.  No evidence of any legitimate activity on the part of Doraville was advanced by Doraville before the US Court, because it elected not to contest the US proceedings, and no evidence was filed by Doraville in these proceedings.  We note that Advocate Nicholls was very careful in his submissions not to suggest that there might have been any such legitimate activity.  Doraville's argument is based upon its (in our view unrealistically restrictive) interpretation of the Verified Complaint. 

144.   We note from the Verified Complaint that in 1997 Goldman Sachs informed Abubakar Bagadu and Mohammed Sani Abacha (the principals behind the activities of Doraville) that it was ending their relationship over concerns about the source of their money.  In 1998 Banque Baring Brothers terminated its relationship with Abubakar Bagadu and Mohammed Sani Abacha over false representations made by them about the source of their money.  When they approached Deutsche Bank International in Jersey, with whom the Bank Account was opened, they produced false documents and made false representations as to the source of their money, namely that it was the proceeds of oil, construction and energy trading when, as the Verified Complaint says "in truth the funds were the proceeds of theft and corruption".  

145.   Doraville also requires us to assume that District Judge Bates ignored the statement that Abubakar Bagudu returned $163M in 2003 and this was his half of the Doraville Assets.  Advocate Nicholls says that the Court should reach this conclusion because otherwise the Court would be concluding that Judge Bates relied on inference and there is no room for inference.  That is unsustainable.  Courts draw inferences every day of the week and it is a perfectly proper basis upon which to make findings. 

146.   The reliance on the use of the phrase "include .... The [Nigerian Par Bonds]" does not assist.  Doraville concedes that there was also some Debt Buy-Back money and so the phrase is readily explainable. 

147.   Advocate Nicholls argued that the Verified Complaint itself failed to specify what property was tainted and what was not, but there was no requirement under the 2007 Law for it to do so.  The requirement is for the order of the US court to do so and it does that in clear terms, namely that all of the Doraville Assets "were involved" in money laundering. 

148.   The final, but simple, point relates again to what the US District Court actually found.  Under the Default Judgment, Doraville's Assets, which were the subject of forfeiture, are defined as "(a) All assets held in account number...", so that when District Judge Bates states that "...defendant assets (a)-(g) were involved in transactions in violation..." he means all of the assets in the Bank Account, not some part of them.  To suggest that there was insufficient evidence contained within the Verified Complaint to justify such a conclusion is to go behind the judgment (impermissibly), but in any event in our view there was sufficient evidence.  

149.   Taking up the approach suggested by Advocate Nicholls at paragraph 55 above, we have considered the allegations in the Verified Complaint, assumed they are true and have determined that the allegations are that all of the Doraville Assets constitute the proceeds of crime; and that is what in substance District Judge Bates found. 

150.    We therefore find that under the Default Judgement, the US District Court found that all of the Doraville Assets constitute the proceeds of crime and the case therefore falls squarely within the second part of the definition of "tainted property" under the 2007 Law.  That finding is sufficient to dispose of Doraville's application. 

Property "used in ... unlawful conduct"

151.   If we are wrong in so concluding and that in some wholly unknown way clean funds had found their way into the Bank Account, so that those clean funds fell within the second corpus theory of property that can be forfeited under US law, namely commingled property, we would need to consider whether such commingled property falls within the first part of the definition of "tainted property" namely property "used in.....unlawful conduct".  

152.   There are serious difficulties in our attempting to do so.  The starting point for dealing with a question of whether property has been "used in" unlawful conduct are the actual facts of the case being considered.  It is a question of fact and degree in each case and we agree with Advocate Jowitt that it is not appropriate to seek to define such a term in the abstract, as Advocate Nicholls has done-see paragraph 61 above.  We do not think such an attempted definition is helpful either to this or to any future court in considering what is a question of fact.  

153.   The question would be whether, on the facts of any particular case, the first part of the definition of "tainted property" is wide enough to cover the whole of a commingled clean/dirty fund when that commingled fund is used in (forms the corpus of) a money laundering transaction. In principle the answer to that question must be yes for the following reasons:-

(i)        Clean funds used in unlawful conduct are capable of falling within the phrase "used in... unlawful conduct" and of being classified as instruments of crime-see Studman, Commissioner of AFP and Commissioner v Mulder (supra);

(ii)       There is no distinction of principle to be made between a money laundering transaction, provided at least some money is the proceeds of crime (an element of the offence), and the transactions in those cases; and

(iii)      If wholly clean funds can be the instrument of a crime (by reason of the "used in" definition), a commingled clean/dirty fund must also be capable of being an instrument of crime by reason of that definition. 

154.   The difficulty in this case is that the Verified Complaint provides no factual base for considering whether any clean funds within the Bank Account have been used in unlawful conduct and Doraville has declined to provide the US court or this Court with evidence upon which such a factual exercise could be conducted.  

155.   Doraville relies on its own interpretation of the Verified Complaint, an interpretation we have rejected, and on that interpretation seeks to found an argument that of the $287M in the Bank Account, some $276M or 96%, which it defines as "the remaining assets", comprise clean monies-an assertion which leaves this Court somewhat incredulous- but if there are clean monies in this account, then we need to know how much, how they came into the account and how they have been used, if at all.  Were they deposited in the account and commingled without more?  Were they transferred into the account already commingled with the proceeds of crime?  Have they been used to facilitate money laundering?  In essence how can we consider whether any clean money has been "used in" unlawful conduct when we do not know what money we are talking about or how it was used, if at all? 

156.   All of the US cases cited to us under the second corpus theory proceeded on established facts as to the extent of clean monies commingled with the proceeds of crime and how these commingled funds had been used.  We have no such factual base because the Verified Complaint, which we have found proceeded on the basis that the Bank Account comprised the proceeds of crime, provides none.  There is, as we have said, no hint anywhere in the document that Doraville was involved in any legitimate activity from which clean funds might have been derived and Doraville, which must surely know if there are clean funds there, has provided none.  We are not even being invited to proceed on a hypothetical basis, because no basis at all is put forward other than, contrary to the allegations contained within the Verified Complaint, there may be an unknown quantity of clean monies in the Bank Account. 

157.   Advocate Nicholls submits that the key issue is whether US law allows the forfeiture of property that has not itself been used to achieve the purpose of a violation of a federal money laundering offence and in circumstances where there is insufficient proximity between the unlawful money laundering transaction and the clean property.  In his submission, the second category corpus theory allows US courts to forfeit clean funds as being "involved in" a money laundering transaction, even when those funds have not been used for the purpose of that transaction-a very fine distinction, if there is any distinction at all, but surely one that can only be drawn on the facts of each case. 

158.   In this respect, Advocate Nicholls relied on this passage from Mr Alberts' opinion:-

"Some US Courts have held that in order to establish a factual basis for finding that clean funds were used to facilitate a money laundering offense by concealing the origin of the tainted funds, it is sufficient for the government to prove that the clean funds and tainted funds were both deposited in the same account at the same time, resulting in "commingling" of funds."

That meant, Advocate Nicholls said, that in a third theory facilitation case the US government can forfeit the entire contents of the bank accounts containing commingled funds even if there is no direct evidence of intent to conceal, citing the US case of McGauley (supra).  Advocate Jowitt set out the relevant part of the judgment in that case in his closing submission, but as we are not concerned with facilitation, suffice to say that it is clear from that judgment that the jury had been directed that forfeiture of a commingled account was proper so long as the government demonstrated to them "that the defendant pooled the funds, commingled the funds, moved the funds to facilitate - that is, to disguise the nature or the source or the location of the funds."  Thus, commingling was sufficient to expose the legitimate funds to forfeiture "if the commingling was done for the purpose of concealing the nature or source of the tainted funds".  In his report, Mr Albert takes this quote from the case of McGauley:- "There was no direct evidence of intent to conceal" but as Advocate Jowitt points out, the full quotation is "Although there was no direct evidence of intent to conceal, the evidence was sufficient to support an inference of such intent."

159.   Our understanding of the US law in respect of the third facilitation theory is that mere commingling is not sufficient and the test is whether it is "used to facilitate" the money laundering offence, an expression that Mr Alberts uses in his report and which Mr Cassella uses in his illustration set out above.  The question does not arise in the facts of the present case but we can see no reason why "used in" should not be wide enough to encompass "used to facilitate".  The other cases referred to by Mr Alberts are to similar effect, namely United States v Seher 562 F. 3d 1344 and Puche 350 F.3d at 1154. 

160.   The simple answer to the assertion that under the second corpus theory mere commingling is enough is that the clean money has to be used in the money laundering transaction, so that it forms part of the corpus of that transaction.  In Mr Cassella's illustration, set out above, it is part of the money used to buy the luxury automobile.  Nowhere, so far as we can see, does Mr Alberts state that clean monies commingled in this way with dirty money as one corpus and then made the subject of a money laundering transaction, is not being used for the purpose of that transaction as self-evidently it is being used.  As Mr Cassella said in evidence:-

"In an in rem forfeiture case, there is no such thing as forfeiting untainted property.  It has to be tainted, either because it was derived from the underlying crime, theft or corruption, or because it is tainted because it was involved in the money laundering, but it must be tainted..."

161.   As Advocate Jowitt pointed out, the three US cases to which Advocate Nicholls referred in support of this proposition do not support him.   In United States v Funds on Deposit at Bank One, Indiana, 2010 WL 909091, it was held that where $691,490 in 'illegal cash proceeds' and $1,071,971 in apparently clean funds were deposited into an account and then transferred back out of the account (the money laundering offence), all of the funds transferred from the account including the clean funds were subject to forfeiture.  The purpose of the transfer was not relevant, because, as the court said "each and every withdrawal, deposit, and transfer moving the criminally derived funds constituted a transaction which violated the statute and supports forfeiture." 

162.   United States v Odom, No No 03cr24-DCB, US Dist. LEXIS 62351, concerned what appears to be another entirely conventional money laundering case.  The money laundering transaction was the purchase of a house with $53,000 in untainted funds and $5,000 in crime proceeds.  The "clean monies" were used to purchase the house and the purchase of the house was the money laundering transaction.  It may be that in Jersey the whole amount could not be confiscated under our differently worded legislation, but that does not mean that the whole amount would not be the corpus of the transaction and therefore used in it as a matter of Jersey law. 

163.   Advocate Nicholls also referred to United States v Real Property known as 1700 Duncanville Road, 90F Supp 2d 741, which also appears to be an entirely conventional money laundering case. 

164.   We accept Advocate Jowitt's submission that in the field of money laundering there is no meaningful distinction between "used in" and "involved in" for the following reasons:-

(i)        For there to be a crime of money laundering (both as a matter of US law and as a matter of Jersey law) there must be a transaction using the relevant property.  Despite Doraville's claim to the contrary, it is not sufficient under either law that dirty money is simply placed in the same account as clean money. 

(ii)       Under US law, clean property will only be "involved in" money laundering if it either forms the corpus of the transaction (the second theory) or is used to facilitate the transaction (the third theory)- that is to say, it is "used in" the transaction. 

(iii)      Under Article 29 of the Proceeds of Crime (Jersey) Law 1999 "criminal property" is defined as being the whole of a clean and unclean fund (not just the unclean part).  Article 29 is in these terms:-

"29     Criminal property

For the purposes of this Part of this Law, property is criminal property if -

It constitutes proceeds of criminal conduct or represents such proceeds, whether in whole or in part and whether directly or indirectly..."

Section 340 of the Proceeds of Crime Act 2002 defines "criminal property" as being "a person's benefit from criminal conduct or it represents such a benefit, in whole or in part, and whether directly or indirectly..."

In Williams and Ors v R [2013] EWCA Crim 1262, the English Court of Appeal said:-

"25     The reference to 'in whole or in part' is important because it shows that the whole property is treated as criminal property, even where only part of it represents benefit from criminal conduct."

It follows that as a matter of the Jersey law of money laundering the whole of the clean and unclean fund would be regarded as having been used in the money laundering transaction.  There is therefore no incongruity in the 2007 Law applying to the US second corpus theory of money laundering. 

(iv)      Support for this can be found in Studman, Commissioner of AFP and Commissioner v Mulder (supra). In any event the two theories of money laundering that have been described to the Court by the experts fall within those parts of the judgment underlined by Advocate Nicholls in the cases of Milner v The Queen and DPP v King above. 

165.   The facts in DPP v King and the shirt and bullet example given by Advocate Nicholls to demonstrate what he says is the difference between "used in" and "involved in" might apply to non-financial crime, although that would be a question of fact and degree, but are not really relevant to this case.  Having said that, it may not be correct to say that a boat that is merely a venue for an offence is "involved in" the offence, precisely because it is not "used in" the offence.  It is merely "present at the scene".  The same might be said for the shirt and the bullet example - the shirt is simply present at the scene of the crime. 

166.   Our understanding of US law is therefore that commingled funds must form part of the corpus of a money laundering transaction or be used to facilitate money laundering.  Whether or not that understanding is correct, in this case we have no evidence of the existence of any commingled funds, only Doraville's unrealistically restrictive interpretation of the Verified Complaint.  

167.   In reality for the second "corpus" theory to be engaged, Doraville would have to have contested the US proceedings and adduced evidence of the existence of clean funds.  On the basis of that evidence the US court would no doubt have reached a determination on the facts and it would be that determination that would enable this Court, in turn, to determine whether any clean funds found to have been commingled were "used in" unlawful conduct. 

Article 1 of the First Protocol

168.   It is accepted that in deciding whether to enforce the Default Judgment the Court must comply with Article 1 of the First Protocol of the European Convention on Human Rights ("Protocol 1").  That Article provides:-

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions.  No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

169.   Advocate Nicholls submitted that there can be dispute that if the Court continues the property restraint order (and in due course registers or enforces the Default Judgment) that is (and would be) an interference with Doraville's peaceful enjoyment of its possessions.  The only issue is whether that interference is justified. 

170.   Interference is only justified if the following three principles are satisfied:-

(i)        The interference must be lawful;

(ii)       The interference must be directed towards a legitimate aim; and

(iii)      The means employed by the state must be proportionate to the legitimate aim sought to be realized by that interference. 

171.   Doraville accepts that the interference is lawful, in the sense that it is undertaken pursuant to the 2007 Law.  Doraville also accepts that the 2007 Law is directed towards a legitimate aim: the confiscation of the proceeds of crime.  The explanatory notes to the Projet to the 2007 Law state that this is the aim of the Law:-

"This Law is intended to enable Jersey to co-operate with other countries or territories in respect of proceedings that are instigated for the purpose of enabling the seizure by those countries or territories of the "proceeds of crime."

172.   Moreover, the Official Report to the Draft Version of the 2007 Law is also clear that the aim of the 2007 Law is to confiscate the proceeds of crime.  By way of illustration, paragraph 1 states:-

"Civil asset forfeiture is a civil action brought by the state seeking a court ruling that particular property held by the individual represents the proceeds of criminal conduct and should be forfeited to the state." (Advocate Nicholls' emphasis added). 

The purpose of the Law is then described in paragraph 7:-

"The first phase is the introduction of legislation [the 2007 Law] to provide for the enforcement of external civil asset forfeiture orders in Jersey."

173.   The question for this Court is therefore whether continuing the property restraint order and in due course enforcing the Default Judgment is proportionate to the legitimate aim of confiscating the proceeds of crime.  If not, this would amount to a violation of Protocol 1. 

174.   Any assets that have not been found by the US court to be equivalent to tainted property must be assumed, Advocate Nicholls argued, to be untainted for the purposes of Doraville's Convention rights.  The question is therefore whether it would be disproportionate to order the forfeiture of some $287m if only $11m of that total had been found to be tainted. 

175.   Although we have been referred to a considerable body of European case law, we intend to deal with this part of Doraville's application briefly, for the following reasons:-

(i)        We have interpreted the US Default Judgment as finding that all of the Doraville Assets constitute the proceeds of crime-accordingly there are no untainted assets. 

(ii)       If per chance, there is an element of clean money within the assets of Doraville, then this Court needs evidence of the same upon which to make a determination as to proportionality.  All of the decisions of the ECtHR cited to us proceeded on the basis of established facts as to the element of clean assets and it must be incumbent upon Doraville, which is claiming that its Convention rights have been interfered with, to establish the facts upon which it relies.  It knows the source of the funds within the account but has declined to assist the Court with any evidence upon which a determination as to proportionality could be made. 

(iii)      If there are clean monies in the account, then it was open to Doraville to appear in the US proceedings to contest the forfeiture and to take advantage of the 8th Amendment to the US Constitution which requires the US Court to determine if forfeiture of the property would be "grossly disproportional" to the gravity of the offence.  It failed to do so.  Again, all of the US cases cited to us in the context of the 8th Amendment proceeded on the basis of established facts as to the extent of the clean money involved, from which the US Courts were able to make a determination as to proportionality. 

176.   If this Court had any doubt as to the Doraville Assets constituting the proceeds of crime, which we do not, then any such doubts would be dispelled by the following:-

(i)        The failure of Doraville to produce any evidence either in the US proceedings or before this Court as to the existence of any clean funds in the Bank Account. 

(ii)       The fact that Doraville has agreed under what is described as a "Repatriation Agreement" (that description is significant) to transfer all of the funds in the Bank Account to Nigeria. 

(iii)      The fact that Doraville will not be resisting proceedings brought by Nigeria in which Nigeria claims a proprietary interest in those funds. 

Conclusion

177.   Accordingly, and for the reasons set out above, we find that the Default Judgment is an external civil asset recovery order as defined, which would qualify for registration under Article 9 of the 2007 Law, and on the information presently before this Court, the enforcement of such an order would not be contrary to the interests of justice. 

178.   The application is accordingly dismissed and the property restraint order will remain in place. 

Authorities

Civil Asset Recovery (International Co-operation) (Jersey) Law 2007.

18 U.S.C.A. (United States Code Annotated) section 981(a)(1).

Black's Law Dictionary.

Aschroft v Iqbal 556 U.S. 662 (2009)).

Milne v The Queen [2014] HCA 4.

Director of Public Prosecutions v King [2000] 49 NSWLR 727; [2999] NSWSC 394.

United States v Funds on Deposit at Bank One, Indiana, 2010 WL 909092, (N.D.Ind. Mar. 9, 2010.

United States v Odom, No. No 03cr24-DCB, U.S. Dist. LEXIS 62351.

McGauley 279 F.3d at 70 (1st Cir). 2002.

SOCA v Perry [2013] AC 182.

United Nations Convention Against Corruption.

The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and the Financing of Terrorism 2005.

The United Nations Convention Against Transnational Organised Crime 2000.

The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988.

AG v Rosenlund and Another [2015] JRC 186.

Saccoccia v Austria 69917/01.

Proceeds of Crime (Enforcement of Confiscation Orders)(Jersey) Regulations 2008.

Showlag v Mansour [1995] 1 AC 431 at 440B.

In re IMK Family Trust [2008] JLR 250.

USA v Abacha [2015] 1 WLR 1917.

Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005.

Dicey, Morris and Collins on Conflict of Laws, 15th edition.

Bujak v Solicitor General [2009] NZSC 42.

HKSAR v Wayland and Anor [2014] HKCFA 51.

Financial Transaction Reports Act 1988.

Re Commissioner of the Australian Federal Police [2012] NSWSC 1533.

Commissioner of the Australian Federal Police v Mulder [2013] NSWSC 993.

Proceeds of Crime (Jersey) Law 1999.

Proceeds of Crime (Cash Seizure)(Jersey) Law 2008.

R v Keith and Ors [2010] EWCA Crim. 477.

United States v Seher 562 F. 3d 1344.

Puche 350 F.3d at 1154.

United States v Funds on Deposit at Bank One, Indiana, 2010 WL 909091.

United States v Odom, No No 03cr24-DCB, US Dist. LEXIS 62351.

Williams and Ors v R [2013] EWCA Crim 1262.


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