The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A WELL-known businessman and two employees were acquitted of making a false $28,401 US currency declaration because Crown prosecutors failed to charge them with a conspiracy.

This meant that allegedly "inconsistent" statements made by James Curling, principal of sand miner, Tycoon Management, and his two workers to Bahamian police and a US Customs and Border Protection Officer could not be used against them.

The Court of Appeal, unveiling its rationale for overturning Mr Curling's prior conviction, and those of Dion Feaste and Patrick Pinder, found that the offences with which Mr Curling was charged could not be upheld "devoid of the statements" by the three.

Acting Justice Milton Evans, in a verdict unanimously upheld by his two fellow Appeal justices, said the evidence also suggested there was no "sinister motive" in Mr Curling giving monies to his workers. And, with the Tycoon Management chief's conviction and sentence quashed, the 'abetting' convictions imposed on Messrs Feaste and Pinder also had to fall away.

The trio were previously convicted by Magistrate Samuel McKinney on July 18, 2016, for breaching the Bahamas Preclearance Agreement Act by failing to declare they possessed more than $10,000 in US currency when travelling through Lynden Pindling International Airport (LPIA) to the US on August 14, 2015.

The conviction, which also included making a false declaration, was based on the prosecution's claim that the $28,401 was distributed between the three men in such a way that they each had less than $10,000 on them to "avoid detection".

Edward Levi, a US Customs and Border Protection Officer, testified that both Pinder and Feaste were referred to 'secondary screening' after revealing they were carrying $9,075 and $9,000 in US currency, respectively.

"Officer Levi testified that he had further conversations with appellants Pinder and Feaste, whereby he learned that they both worked for appellant Curling, who was scheduled to travel to Orlando, Florida that same day," Acting Justice Evans wrote.

"Officer Levi further averred that appellants Pinder and Feaste informed him that it was appellant Curling who had purchased the tickets on which they were travelling. According to Levi, one of the appellants provided him with the cellular phone contact for appellant Curling. He then made contact with appellant Curling by phone."

Mr Curling was by then in the airport's departure lounge, and the judgment recorded: "Officer Levi further testified that the person on the phone identified himself as James Curling, and confirmed that appellants Pinder and Feaste were his employees.

"According to Levi, appellant Curling told him that he had given both appellants Pinder and Feaste $9,000 US dollars each to carry on his behalf."

Mr Curling then returned to 'secondary screening', where his currency declaration form was assessed. He had declared that he was not carrying $10,000 or more US dollars, and was found to only be in possession of $9,326. "According to Levi, he was not satisfied with the answers provided by the men so he seized the currency totaling $28,401 for failure to report, and then turned the currency along with the men over to the Bahamian police for further investigations," Acting Justice Evans wrote.

During interviews with Detective Corporal Donald Rolle, which led to the trio being charged, Mr Curling said the other two were employed by Tycoon Management. While he had given Pinder monies for his own personal use, he denied doing the same for Feaste.

Both employees denied a conspiracy with their boss "to elude US Customs officials", with Pinder disclosing the monies received from Mr Curling were for personal use in purchasing vehicle parts. Feaste said the funds he was carrying represented savings for personal shopping.

Wayne Munroe QC, representing the trio before the Court of Appeal, argued that the fact Mr Curling and his employees were headed to different destinations - the former to Orlando, and the latter duo to Fort Lauderdale - did not suggest a conspiracy where they would all meet up and return the funds to the Tycoon Management boss.

"Counsel [Mr Munroe] submitted that as the appellants were not charged with conspiracy, nothing the individual appellants said could be used against the others," Acting Justice Evans noted. "Flowing from that there was nothing incriminating in any of the statements made by the appellants, either to the Customs Official or the Bahamian police.

"Each appellant, he says, declared what funds they each had in their possession and the Crown has not been able to show that their evidence as to the source of the funds and the reasons for carrying the same was false."

Mr Munroe also argued that there was nothing to prevent someone giving funds to others to carry on their behalf. He added that this only required completion of a FinCEN 105 form, a US mandate that requires travellers to declare currency and other monetary instruments they are carrying, but there was no offence in law for failing to do this.

Vernal Collie, for the Attorney General's Office, argued that the statements by Pinder and Feaste were "inconsistent" with Mr Curling's admission that he had given them funds to carry on his behalf. And, as a result, he insisted the Tycoon Management chief had made a false declaration.

In overturning the convictions and sentences, the Court of Appeal backed Mr Munroe's argument. "It appears that the case for the prosecution was based on suspicions formed after speaking with the three appellants," Acting Justice Evans found.

"However, in bringing the various charges against appellant Curling and the others the prosecution failed to lay a charge of a conspiracy against them. Under the rules of evidence, the out-of-court statements made by the individual appellants could not properly be used against the others, but in this case that is clearly what the magistrate did.

"The officer's suspicion as to the falsity of appellant Curling's declarations to all three appellants being concerned together in his making it was based on the fact that he claimed to have received inconsistent answers from the appellants. The magistrate fell into the same trap by seeking to determine the veracity of the individual's statements made by comparing it to those made by the other appellants."

With the statements effectively inadmissible, the Court of Appeal added: "Even if he [Curling] gave money to appellants Pinder and Feaste, his declarations were factually correct. In the absence of a conspiracy charge, his admission could not carry the matter any further.

"Appellants Pinder and Feaste on the evidence were travelling to Fort Lauderdale, whereas appellant Curling was travelling to Orlando on a different flight. It was only natural, then, that each of them would fill out a separate declaration form.

"It also stands to reason that if appellant Curling had a sinister motive in giving the funds to the employees, it's not likely he would have been so quick to confirm that he had given the funds to them to carry."