You should read this and digest it. It shows the malfeasance of the current Costa Rican government to investor's rights, along with a little collaboration from the US, Canadian, and British governments thrown in.

John

> -----Original Message-----
> From: Hank [mailto:sky_boy@swbell.net]
> Sent: Wednesday, April 14, 2004 3:36 PM
> To: rcg@destiny-worldwide.net
> Subject: The "White Paper" English translation
>
>
> Hello Friends!
>
> This morning, UCCR released the English translation of their
> highly anticipated "White Paper" authored by OUR attorney
> Jose Miguel Villalobos.
>
> A lengthy read and from what I've been told, the original
> Spanish version will make one appreciate JMV's literary
> skills, pointed expressions and a style that approaches
> brilliant poetry.
>
> Echoing the sentiments of many, I would like to know how this
> document will be used, how effective it will be in the
> upcoming Legal Procedure, what key figures exactly will read
> this piece and will it be included in the legal documentation
> and evidence to be entered in the pending trial?
>
> Happy reading!
>
> Hank
> sky_boy@swbell.net
>
>
>
>
> This document is "our" (the Villalobos Investors) "J'ACCUSE"
> ! Please feel free to forward it to anyone familiar with our
> case and to
> anyone who could influence the outcome.
>
> It shows very clearly that this "investigation" was organized
> with one
> idea in mind : "GET RID OF THE VILLALOBOS BROTHERS"
>
> Thank you for reading it and thank you for forwarding it to others.
>
> John Manners, president, UCCR
>
>
> To our members and all investors,
>
> We proudly send you the complete translated version of the
> document JUSTICE, UPSIDE DOWN, written by UCCR lawyer, the
> Lic. Jose Miguel Villalobos.
>
> We apologize for the imperfection of this transmission,
> however, since there will be a two-day delay in posting it on
> our web site, we wanted to get this important information out
> to our members as soon as possible.
>
> Please take note that this document is more than 40 printed
> pages. We will advise you when the complete formatted
> version is posted to our Web site.
>
>
> JUSTICE, UPSIDE DOWN
> How the Judicial System of Costa Rica
> Handled the Case of the Villalobos Brothers
>
> By Lic. Jose Miguel Villalobos
> As Attorney for UCCR
>
> 25 March, 2004
>
>
> PREAMBLE
>
> During the events that are accounted for in this document,
> hundreds of those affected by the illegitimate closing of the
> businesses of the Villalobos Brothers organized themselves to
> defend their interests. The group called UCCR worked out a
> strategy based on demonstrating the non-guilt of the
> Villalobos Brothers in order to facilitate his return to the
> country and to achieve the reimbursement to investors of
> their legitimate resources. Other sectors have attempted to
> file claims against the Villalobos in spite of the fact that
> don Luis Enrique is not detained, and by doing so have
> facilitated the Prosecutor’s strategy and have affected the
> process for the reimbursement of moneys. However, in the
> end, we all share the same objective, which is the recovery
> of the funds.
>
>
> INTRODUCTION
>
> The document you are about to read is not fiction. It is
> rather an elaborate, detailed account of how the Justice
> Department of Costa Rica has acted in the case against two
> citizens of this country, Luis Enrique and Osvaldo Villalobos
> Camacho. Despite the gravity of these denounced actions, all
> protests against them have thus far not merited the attention
> of the authorities for judicial inspection nor even of the
> press. Possibly this is because they think only the interests
> of a group of investors, mostly foreigners, are involved.
>
> Nonetheless, the issue is much more crucial than that. We
> have a Prosecuting Attorney for Drug Trafficking delving into
> alleged financial crimes and a Judge of Rights who's only
> concern is infringing on the rights of the accused, going so
> far as to violate his own legal resolutions. Ten million
> colones disappear during a seizure of assets and the
> authorities do not even bother to investigate those
> responsible. The operation of the Justice Department is
> public in nature, although privacy might be an issue for
> those who appear before it. Therefore, we do not believe
> these actions should be covered up, because doing so would
> make us accomplices to abuses of power, which weaken the
> credibility of the Supreme Court and its functionaries.
> Actions like these endanger those who properly carry out
> their duties, and undermine the dignity of the
> highest-ranking officials of the Prosecutor’s Office.
>
> The document that you are receiving is without error. We have
> evidence of its veracity, and we quote the pages of the legal
> record to back up our statements. We trust that, although
> some self-righteous and hypocritical dignitaries might be
> appalled at anyone who would question Prosecutors and Judges,
> the majority is capable of reasoning and defending with
> constructive criticism our legal institutions. Merely
> ignoring an injustice will not make it go away; rather, this
> attitude will cause it to multiply and thus favor the
> impunity of those guilty of committing it. Judicial
> functionaries are our guardians, and therefore their
> malpractice is one of the most dangerous behaviors for all
> citizens, for we are at the mercy of those who defend us.
>
> If you think it cannot happen to you, remember the words of a
> Nazi concentration camp survivor, Pastor Niemoller, who wrote:
>
> "In Germany they first came for the Communists, and I didn't
> speak up because I wasn't a Communist. Then they came for
> the Jews, and I didn't speak up because I wasn't a Jew.
> Then they came for the trade unionists, and I didn't speak
> up because I wasn't a trade unionist. Then they came for
> the Catholics, and I didn't speak up because I was a
> Protestant. Then they came for me — and by that time no one
> was left to speak up".
>
> The aggressions that are inflicted on one human being are
> suffered by all. The bells of injustice ring not only for the
> offended; they ring for him, for you, for me, and for all
> people of good faith.
>
>
>
>
>
> FIRST POINT:
>
> Prosecutor Espinoza knew about the request from the
> Government of Canada before his ranking superior, and acted
> prior to having official authority to do so.
>
>
> The Letter of Request sent by the Canadian Government asking
> for the cooperation of the legal authorities in Costa Rica
> arrived at the Chancellery on June 25, 2002. Action was
> immediately taken on the letter, and July 3 of that same
> year, it was made known to the Attorney General of Costa Rica
> at that time, Lic. Carlos Arias, in whose office the letter
> was received at 10:00 that same day, as recorded in the
> receipt records of that office. By order of the Attorney
> General, the document was handed over to the Narcotics
> Prosecutor’s Office, directed by Prosecutor Walter Espinoza,
> at 10:35 that same July 3, for him to take due action.
>
> Thus far, the handling of the case appears to be normal.
> However, Prosecutor Espinoza handed the Letter of Request
> from the Canadian Government over to Judge Francisco Sánchez
> at 9:00 that same day; that is, he acted an hour and a half
> before officially receiving the note from the Attorney
> General. Lic. Walter Espinoza therefore had in his hands the
> Letter of Request from the Canadian Government before the
> Secretariat of the Supreme Court of Justice delivered it to
> the Attorney General, thus totally violating the internal
> hierarchy of the Judicial Power and encroaching upon the
> attributes of the highest rank of the Attorney General of Costa Rica.
>
>
> We should ask ourselves how Prosecutor Espinoza obtained that
> document before his own superior officially sent it on and
> what the reasons were for such a hasty, abrupt action. For
> now, suffice it to say, that it is clear that Prosecutor
> Espinoza sent the request to Judge Francisco Sánchez before
> receiving the documents from the Attorney General, and it
> must be assumed that, in fact, he had them in his hands
> substantially before then, since he had enough time to read
> them and write up a request dozens of pages long, which could
> not have been done in a just few minutes. At least,
> Prosecutor Espinoza had had access to that documentation
> several days prior to that moment, which would have given him
> time to prepare the request even before his own superior
> learned of it. That can easily be proved, as shown in the
> following point.
>
>
> SECOND POINT:
>
> Official authorities from the Government of Canada
> communicated with Prosecutor Espinoza using unofficial
> channels to coordinate collaborative actions before the
> Attorney General had received the Letter of Request for
> Cooperation and those same Canadian authorities delivered
> that document using informal methods and concealing their actions.
>
> In the Supreme Court file, which refers to the Letter of
> Request sent by the Canadian Government, there is a copy of
> the note sent by Mr. Gustavo Alvarez, a staff member of the
> Canadian Embassy in Bogota, Colombia. Significantly, that
> note is dated June 21, 2000, that is, four days before the
> Chancery of Costa Rica officially received the Letter of
> Request from the Canadian Government. In that mysterious
> letter, Alvarez, the staff member of the Canadian Embassy in
> Colombia, advises Prosecutor Espinoza, bypassing his
> superiors, that two investigators from that country will
> arrive on July 2 to coordinate some operations. Those
> operations, through the indicated date and the sender, refer
> to the Letter of Request, which had not yet been received and
> much less acted upon in Costa Rica.
>
> In other words, even before the Canadian had officially
> acted, one of its staff members in another country had
> communicated with the legal authorities in Costa Rica for the
> purpose of coordinating what had not yet been requested,
> hence failing to respect his own Embassy in this country and
> the hierarchy of the Judicial Power and the Chancery. But the
> matter went beyond a simple violation of formalities, which
> itself was serious and unusual enough. Staff member Alvarez,
> from Bogota, Colombia, sends out information in Spanish and
> English describing a Legal Mutual Assistence Agreement
> between Canada and Costa Rica for carrying out investigative
> work in this country. That statement is absolutely false, as
> both the Canadian staff member and Prosecutor Espinoza well
> know. That "Agreement" does not exist, not only because it
> has not been signed, but because it refers to the
> participation of the Ministry of Justice of Costa Rica, which
> has no jurisdiction in investigative, police or!
> judicial tasks. Let us analyze the facts that show why the
> Canadian staff member was not telling the truth.
>
> It is evident that the documentation sent on June 21 was the
> Letter of Request, which had not yet arrived through
> diplomatic channels, but which Prosecutor Espinoza knew about
> before his superiors did. The Canadian staff member is
> untruthful, for which an explanation ought to be extended by
> the Embassy of Canada. But even more grave is the fact that
> Prosecutor Walter Espinoza would receive documents and act
> before being authorized to do so by the Supreme Court of
> Justice and his immediate superior, the Attorney General.
> Since July 21 he had time to prepare the request that was
> received by Judge Sánchez on July 3, all before the Attorney
> General had knowledge of the Canadians' request.
>
> By his actions Prosecutor Espinoza assumes powers he did not
> possess; he disdains the Supreme Court, by acting before it
> had any knowledge of the Letter of Request; he bypassed the
> Chancery itself by maintaining contact with a friendly
> country through extra-official channels; and he took upon
> himself a case of this magnitude before his own immediate
> superior assigned it to him. Thus, the legal violations
> committed by the Prosecutor are numerous.
>
> THIRD POINT:
>
> The Canadian Embassy never requested a raid of the offices
> of the Villalobos Brothers, but Prosecutor Espinoza convinced
> the Judge in charge of the case and also the national press,
> that such a request existed.
>
> Once the Letter of Request was officially received, its
> content was known, and it can be concluded that in no way did
> the request for the cooperation made by the Canadian
> Government involve raiding the Villalobos brothers’ offices.
> Pages 18, 19 and 20 of the Letter containing the cooperation
> requests make absolutely no mention of raiding those offices.
> The request for a raid is limited to the condominium of the
> Canadian citizens, who were staying at Jacó de Garabito, for
> the purpose of seizing documents at that location. Because
> the Canadian authorities were interested in locating any
> information related to the bank accounts those individuals in
> Costa Rica, their requests were not limited to obtaining
> information on possible deposits with the Villalobos
> Brothers; they were asking for all types of reports on any
> transactions made in this country.
>
> A careful reading of that Letter of Request will show that
> that the Government of Canada never had in mind a raid of the
> Ofinter offices and those of Mr. Luis Enrique Villalobos, but
> rather they were requesting a raid on the condominium of the
> Canadians under investigation in their country, as well as
> information on any relative banking or financial transactions
> in Costa Rica, and not exclusively information on possible
> operations with Luis Enrique Villalobos. Nevertheless,
> Prosecutor Espinoza requested in his written communication,
> received at the Preliminary Criminal Court at 9:00 on July 3,
> 2002, that the Villalobos brothers’ offices be raided and
> that all documents, books, accounting statements, monies and
> other items related to the alleged investigations be seized and held.
>
> On folio 107 of the court file, Prosecutor Espinosa, in his
> request to the Judge, asks for a raid and search of the
> Ofinter offices and the sequester of any information having
> to do with to the Canadian citizens under investigation, but
> at no time did the Prosecutor manifest the same eagerness in
> soliciting information concerning the financial transactions
> of those Canadians in other Banks or financial establishments
> in the country. This reveals that he used the Letter of
> Request merely as a pretext to target his forces against the
> Villalobos brothers, so he made his actions coincide with the
> Canadian's request and transformed the matter into an
> international issue. With that conduct he has involved the
> Canadian Government in an investigation it did not request,
> and has been untruthful in his written communications to the
> preliminary Judge, by trying to link the Canadian
> investigation of several of its citizens with his own
> criminal vendetta against Osvaldo and Luis Enrique ! Villalobos.
>
> FOURTH POINT:
>
> The Chancellery of Costa Rica altered the essence of the
> request from the Government of Canada and gravely modified
> its contents, and Prosecutor Espinoza hid that information
> from the Penal Judge.
>
> The Letter of Request sent by the Canadian Government clearly
> establishes that it is a request for cooperation on the part
> of the Judicial Power of Costa Rica in an ongoing police
> investigation in that country, pointing out that at that time
> no charges had been brought against anyone. The Interim
> Juridical Director of the Chancery altered the thrust of the
> note, officiously categorizing it as a request for legal
> cooperation and stating that it was a case against several
> Canadian citizens, even though the note from that country was
> absolutely clear in that it was a simple police
> investigation, that at that time there was no case and that
> no charges had been brought against those individuals.
> Moreover, the Supreme Court repeats the error induced by the
> Chancery, categorizing the Letter of Request in like manner.
>
> But what is really unacceptable, is that Prosecutor Espinoza,
> who had supposedly read the letter in its entirety, in his
> request of the Criminal Judge, would almost completely
> transcribe the Canandians' request verbatim, except for the
> phrase found on all pages, which explains that it has to do
> with an ongoing investigation and that no charges have been
> leveled against the individuals in question. It is not
> believable that this was just a careless mistake on the part
> of the Prosecutor; rather it is obvious he had intended to
> mislead the Judge and make him believe that the letter was
> about a court case in Canada, which was totally false.
>
>
> FIFTH POINT:
>
> Prosecutor Espinoza had prior information about the
> operations of the Villalobos Brothers for several years, and
> without new evidence, had the Letter of Request for
> Cooperation coincide with the start of the investigation.
>
> Since May 11, 2000, Prosecutor Walter Espinoza had knowledge
> of the matter related to the operations of the Villalobos
> brothers. On that date he received official letter
> SUGEF-2310-2000-03 signed by the then General Intendant of
> Financial Entities, Helberth Pineda Solís, notifying him of
> the case referred to as the Villalobos Brothers Case and
> another dated July 20 numbered 3358-2000-03. The
> investigation was initiated by reason of an official letter
> sent by the Banco Crédito Agrícola de Cartago, which informed
> the Superintendence of frequent checks being cashed at that
> bank by the brothers Luis Enrique and Osvaldo
> Villalobos-Camacho. The report mentions possible fund
> gathering in dollars at a business location in San Pedro de
> Montes Oca.
>
> Time passes with no progress with respect to the Prosecutor's
> concerns, and meanwhile the banking and financial oversight
> authorities repeatedly request information from the Ofinter
> business without establishing any liability on the part of
> any of its representatives. On March 19, 2002 (almost two
> years after the first references to the case), Mr. Adolfo
> Rodríguez-Herrera, General Superintendent of Securities,
> sends to the General Attorney a simple document reporting on
> risky operations being conducted by the stock brokerage,
> Mercado de Valores Puesto de Bolsa, S.A.
>
> The Superintendent, instead of opening an administrative
> investigation against the mentioned brokerage, orders an
> investigation of the firms that allegedly were investing in
> the brokerages. Surprisingly, the General Attorney Carlos
> Arias, the next day sends the document to the Narcotics
> Prosecutor, Walter Espinoza, and transforms the letter from
> Superintendent Rodríguez into an charge of possible money
> laundering. That is absolutely false, since the note from
> Rodríguez cannot be construed as a charge at all in that
> sense, making the General Attorney General's categorization
> truly astounding. The case is even more absurd considering
> that it cannot be inferred from Prosecutor Arias’s note who
> the possible guilty parties of that alleged money laundering
> could have been.
>
> Prosecutor Espinoza was so confused by that note that he
> ordered the Rapid Processing Unit of the Public Ministry to
> assign a unique number to the case against “Unknown” and for
> the crime of “Drug Trafficking.” Yes, that’s right. As far as
> Prosecutor Espinoza was concerned, at that time there was no
> evidence whatsoever of any crime committed by Luis Enrique
> and Osvaldo Villalobos-Camacho, so much so that he received
> the note from his superior and for two months thereafter, he
> went about trying to open the case without finding anyone to
> charge. That is how the case began. One can actually read on
> the cover of the file for Case 02-008579-042-PE that it is
> against “Unknown” for the crime of “Money Laundering,” and
> that was a month before the raid and sequester that took
> place at the Villalobos brothers’ offices. It is obvious that
> as of May 27, Prosecutor Espinoza did not so much as suspect
> those men, even though he had been familiar with the case
> since two years prior to that ! that time.
>
>
> SIXTH POINT:
>
> Prosecutor Espinoza, after learning through unofficial
> channels of the Letter of Request for Cooperation, asks CICAD
> (Joint Center of Anti-Drug Intelligence) to prepare a report
> about the Villalobos Brothers’ case, with the intent to have
> it coincide with the procedural delivery of that Letter.
>
> In the file there is a note dated July 1, 2002, received in
> Prosecutor Espinoza's office that same date, Official Letter
> UAF-045-02-38-1999, through which the Joint Narcotics
> Intelligence Center (CICAD) submits its findings after
> updating the information on the Villalobos brothers as of
> October 2001. It presents eight conclusions, after 34 pages,
> and none of them even considers a possible relationship to
> the crime of money laundering. CICAD merely presents the list
> of immovable assets belonging to what it calls the Associated
> Enterprises of the Villalobos Brothers, erroneously
> indicating that they cover an area of 7,500 square kilometers
> (which is actually bigger than the area of San Jose Province!).
>
> It also states that the Villalobos brothers engage in
> financial intermediation, describing the interest rate at
> which funds are gathered, without even mentioning any
> possible illegality. It speaks of a heavy flow of funds,
> without conjecturing as to the possible causes or offering
> any opinions. That report contains no reference to possible
> illicit activities, and much less any having to do with money
> laundering. Neither do the investors ask the Prosecutor for
> more time to finish the work that was assigned to them. Thus,
> as of that date, there was no evidence, nor even suspicions,
> of any criminal activity, despite the fact that CICAD had
> been conducting the corresponding investigations for a long
> time before that.
>
> In spite of all this, Prosecutor Espinoza, on July 1,
> presents to the Preliminary Criminal Court a request for a
> raid, search, sequester, seizure of items and other things,
> against the Villalobos Brothers' assets. In that petition he
> mixes the contents of the Letter of Request from Canada with
> alleged internal investigations, which he neither describes
> nor details, and information internally gathered, also not
> described, to justify the request. The first 15 pages are
> nothing more than a copy of the Letter of Request, from which
> the Prosecutor omits the Canadians’ clarification that it
> involved no legal cases but rather a police investigation and
> that the individuals under investigation were Canadian
> citizens and not the Villalobos brothers. Starting half way
> down on page 15 until page 32, the document merely
> transcribes the CICAD report mentioned above but indicates no crimes.
>
> It must be pointed out that Prosecutor Espinoza states that
> the information had come from SUGEF, SUGEVAL and CICAD, when
> actually only the latter is true. The SUGEF had actually
> produced a lengthy file beginning in March 2001, which
> indicates that the Villalobos brothers were not involved in
> financial intermediation activities, according to the
> official letter from SUGEF's Legal Consultancy Office,
> DAJ-074-2002, dated June 12, 2002. In other words, less than
> a month before the Prosecutor’s request for the raid, the
> technical experts in that discipline had stated that they had
> detected no crime of illegal financial intermediation. That
> fact was reiterated before the Prosecutor himself by the
> Superintendent of Financial Entities in April 2003, which
> shows that Walter Espinoza had been untruthful before the
> Criminal Judge. In reference to SUGEVAL, there is only a note
> calling for the investigation of the money movements, which
> had been received by the Prosecutor way back in Mar! ch. The
> part about CICAD is the report we described.
>
> The only input from Espinoza is the statement that Ofinter
> gathers funds from investors, which had already been said by
> CIDAD and, in and of itself, is not an illegal activity. This
> can be verified by comparing the Prosecutor's report with the
> CICAD report and noting that 99 percent of it is the same
> document, found in the appendix to the copy of the Canadians'
> Letter of Request. Despite such weak justification, the
> Prosecutor requests from the Judge and is granted a raid and
> search of the Ofinter offices, owned by the Villalobos
> Brothers, as well as the sequester of any physical and
> material evidence relevant to the case. He includes in the
> request the confiscation of money found on the premises,
> irrespective of who it belonged to. What is really striking
> about this is that he does not ask the banks for information
> pertaining to the Canadians sought by the Canadian
> Government, even though that is precisely what was requested,
> but rather only seeks information related to the!
> Villalobos brothers.
>
> The Prosecutor presents no evidence whatsoever to justify his
> requests, and the Judge consents without prior, serious review.
>
>
> SEVENTH POINT:
>
> Judge Francisco Sánchez authorizes the petitions from the
> Prosecutor in record time.
>
> Judge Sánchez receives Prosecutor Espinoza's request at 9:00
> on July 3, 2002, and by 13:00, he has not only read the
> respective documentation but has issued a resolution. There
> were 70 folios, including the Letter of Request, but with an
> agility worthy of a much more important case, someone read
> all of that information, interpreted it, made a decision on
> it and drafted an entire 13-page resolution concerning it.
> Amazingly, in the heading of that resolution the Judge
> indicates that he has decided on the request after analyzing
> it, which is obviously not true considering material and time
> limitations.
>
>
> EIGHTH POINT:
>
> Of the sums confiscated from the Offices of OFINTER, property
> of the Villalobos Brothers, Ten Million Three Hundred
> Thirty-One Thousand Colones disappeared, without any
> explanations to this day about this situation from Prosecutor
> Espinoza.
>
> On July 4, 2002, the Ofinter offices were raided,
> confiscating a large sum of cash, which was put in charge of
> the Prosecutor's office. The Judge responsible for the action
> was Licda. Cindy Williams, who had a large number of
> officials from the Judicial Power accompany her. The 16-page
> search warrant was issued at 21:15. Everything that was
> seized is properly documented, except for the sum of
> 10,331,000 colones, which do not appear as deposited in the
> Court accounts, nor is the Prosecutor able to explain the
> whereabouts of that money. Page 10 of the Search Warrant
> mentions that amount of paper money was found in a small
> safe, but no one will assume the responsibility of explaining
> what subsequently happened to the money. The money was lost
> at the time the judicial agents were on the scene and raided
> the offices; there is a record that the money was found at
> the location, but it was evidently not deposited in the
> Judicial Power accounts. This is no small amount, but even if
> i! t were, the Prosecutor and the Judge in charge are
> obligated to explain its whereabouts and divulge who is
> responsible for its disappearance.
>
>
> NINTH POINT:
>
> The Prosecutor insists in the Press that all the money is
> located in the accounts of the Judiciary.
>
> On August 6, 2003, Prosecutor Espinoza publicly referred to
> the complaint about money allegedly disappearing during the
> raid and categorically stated that the amounts of money in
> their entirety are deposited in the Judicial Power accounts,
> producing the respective deposit slips. Once again Prosecutor
> Espinoza is untruthful, being that the amount of 10,331,000
> colones does not appear as deposited in those accounts,
> despite the fact that it does appear as seized in the records
> of the raid.
>
> TENTH POINT:
>
>
> Prosecutor Espinoza commits serious errors of addition and
> retracts information he had provided in regards to the
> deposited funds.
>
> On June 9, 2003, Prosecutor Espinoza responded to an
> investor's request by stating that the entirety of the money
> deposited in the accounts of the Costa Rican Anti-Drug
> Institute (ICD), is US$204,189. Nonetheless, on August 6 he
> had to acknowledge that there were actually 56,000 dollars
> more, since he had had failed to add correctly, and that had
> occurred without the 10,331,000 colones showing up yet. It is
> difficult to trust an office whose calculator works so poorly
> in such sizeable amounts and where those responsible
> constantly change their statements without explaining the
> reasons for their errors.
>
> ELEVENTH POINT:
>
>
> The Prosecutor requests and the Judge concedes the holding of
> financial assets and the freezing of accounts of the
> companies related to the Villalobos Brothers, affecting the
> rights and interests of the investors without due process.
>
> Right from July 3, Prosecutor Espinoza requested the freezing
> of the accounts and the immobilization and sequester of the
> money confiscated from the Villalobos brothers’ offices. The
> raid is supposedly justified by alleged crimes of money
> laundering and illegal financial intermediation. Although no
> legal regulation to back up the action was cited, the Judge
> went right ahead and authorized the confiscation of those
> funds anyway. Sufficient was a reference to an alleged
> operation with some Canadian citizens, under police, not
> judicial, investigation, to freeze the totality of the funds
> of thousands of investors who had nothing at all to do with the case.
>
> No reference whatsoever was made of the knowledge that the
> Villalobos brothers might have had of the Canadian
> operations, nor was any consideration given to the fact that
> a month earlier the SUGEF itself had established that they
> found no evidence of illegal financial intermediation.
> Nonetheless, a mere invention of the Prosecutor sufficed to
> freeze the funds of third parties. The Prosecutor could have
> requested information concerning the Canadians or
> investigated the destination of the funds gathered, but
> instead, with the help of the Judge, which must have been by
> way of guarantees, he closed a business that had been
> operating smoothly for over 18 years.
>
> TWELFTH POINT:
>
>
> The Prosecutor is arbitrary in the application of the Law,
> because similar cases are handled in a different manner.
>
> The gathering funds from the public by non-authorized
> entities or individuals in Costa Rica is not a crime. It
> becomes illegal whenever it can be proven that the
> destination of those funds is for money lending or investment
> in stocks and bonds. That is why the SUGEF always deemed that
> the Villalobos brothers had not committed that crime. It is
> well known that the same activity of fund gathering up until
> that time was being conducted publicly by Luis Milanés and
> his firm Savings Unlimited and Vinir, S.A., owned by Vinicio
> Esquivel, who was involved in fund gathering in exchange for
> the payment of interests, without the authorization of the
> government regulatory entity. However, the General Attorney
> at that time had never investigated Milanés, but rather
> allowed him to continue to operate. But with Mr. Esquivel the
> situation is much worse, because he continues to operate in
> the country and openly states to the national press that he
> has been gathering funds for years without l! egal
> authorization, without it concerning the General Attorney in
> the least.
>
> The law ought to be applied equally to all, regardless of
> whether legal authorities are dealing with friends or
> acquaintances. If the Attorney General considers that mere
> fund gathering without legal authorization is tantamount to
> the crime of illegal financial intermediation, then he should
> have, right from the onset of investigating those who engage
> in such activities, intervened in their operations, raided
> their businesses and possibly pressed criminal charges
> against them. The Attorney General has been arbitrary in
> applying the law, in that he has only exercised his powers
> against the Villalobos brothers, in spite of the fact that he
> had at his disposal that case along with technical reports
> indicating that no crime was being committed. It is even
> worse when a bad government official is also arbitrary, or
> more specifically, the worse government official is not the
> most ignorant but rather the most arbitrary.
>
> THIRTEENTH POINT:
>
>
> Prosecutor Espinoza processes a criminal accusation of more
> than 127 people in less than three days.
>
> On Friday, September 26, 2003, the attorney Edwald
> Acuña-Blanco, representing more than 120 people, files a
> lawsuit against the brothers Osvaldo and Luis Enrique
> Villalobos-Camacho for the crime of fraud. The document
> submitted, which is over 70 pages long (although it is
> practically all taken up with lists of the plaintiffs), was
> received in the General Attorney's office at 14:00, as
> indicated by the receipt form of that entity. By the
> following Monday, that is, in less than one half a business
> day, Prosecutor Espinoza had reviewed the entire document,
> verifying compliance with the provisions of the Criminal
> Process Code.
>
> Believe it or not, by 8:00 a.m. on Monday, September 29, less
> than half a business day after attorney Acuña's request,
> Prosecutor Espinoza ruled to accept the case and proceed with
> the public lawsuit. That is not only impossible; it is also
> objectionable. Lic. Espinoza cannot logically affirm that he
> worked all weekend on a lawsuit filed by private individuals
> for a possible crime of fraud, when he is the Narcotics
> Prosecutor. Such swiftness is uncommon with that Prosecutor
> in particular, and in the Court in general, and reflects an
> absolutely preferential treatment of matters arising from
> those who seek to denounce and sue the Villalobos-Camacho
> brothers. When it comes to defense matters, the decision is
> delayed and normal procedures are affected, but a lawsuit for
> alleged fraud filed by over 120 people is somehow given this
> impressive, speedy treatment.
>
>
> FOURTEENTH POINT:
>
>
> The Prosecutor’s Office attempts to intimidate an investor
> who has questioned its action and deprives him of his freedom
> in an arbitrary manner.
>
> On August 21, 2003, the OIJ supposedly received a complaint
> from Mr. Francisco Sánchez-Fallas against Mr. M. Shizard, for
> alleged threats. The data entry operator of that entity, Mr.
> Marco Andrés Brenes-Durán assigns to the case the unique code
> 03-016146-042-PE, according to him, at the request of Mr.
> Gustavo Porras from the Section of Miscellaneous Crimes of
> the OIJ. He even states that the complaint was filed
> personally by Mr. Sánchez-Fallas at 4:11, understood to be
> a.m. because, if it had been the afternoon, the time would
> have been indicated as 16:11. That same day, OIJ Agent
> Gustavo Porras-González transfers the complaint to the
> Coordinating Prosecutor of the Specialized Unit of
> Miscellaneous Crimes of the Public Ministry, classifying it
> as URGENT. On Friday, August 25, just four days later, Mr.
> Shizard is arrested, taking from him a statement, and he is
> immediately handcuffed and taken to an OIJ jail cell, in
> spite of the fact that he was still recovering from an oper! ation.
>
> This incident is incredible because Mr. Francisco
> Sánchez-Fallas has never denounced Mr. Shizard and much less
> the on day and hour falsely indicated by Mr. Brenes Durán,
> the OIJ data entry operator. It is certainly preposterous to
> conceive that at four o'clock in the morning Judge Sánchez,
> the judge over the Villalobos brothers case would be there
> filing charges at the OIJ. What Judge Sánchez actually did
> was to send to the Superior Council of the Judicial Power a
> note on August 19, making known several letters sent by Mr.
> Shizard and which did not please him, with the purpose, not
> of criminally indicting anyone, but to make sure that care
> was taken so that those incidents did not happen again in the
> future. The title page of the file of the case against Mr.
> Shizard indicates that the plaintiff is Francisco
> Sánchez-Fallas, although no complaint has been made and the
> record prepared by the OIJ is totally false.
>
> To this day, the case is dead, and Judge Sánchez has not
> ratified any indictment. This is just one more case of
> arbitrary actions and falsehoods contained in the
> documentation of a legal file. The purpose is clear: to
> intimidate any investor who would even think about vehemently
> defending his or her rights, as Mr. Shizard did before he was
> so barbarously accused. A foreigner still hurting from a
> fresh operation is arrested and held in an OIJ jail cell for
> a nonexistent accusation and a case is initiated against him
> for an act that is no longer a crime. Yes, even that, because
> the criminality for threats had been repealed many years
> before. Ignorance mixed with arbitrariness and the abuse of
> power, are, disgustingly commonplace in the case we have before us.
>
>
> FIFTEENTH POINT:
>
> The Prosecutor’s case is absolutely weak, for the crime of
> illegal financial intermediation, for fraud, and in regards
> to the freezing of monies.
>
> As for the Villalobos-Camacho brothers, they are accused of
> committing the crime of illegal financial intermediation,
> contemplated in Article 157, clause a) of the Organic Law of
> the Central Bank of Costa Rica, which relates to Article 116
> of the second paragraph of the same law.
>
> The mentioned article 157, which prescribes imprisonment of
> three to six years for anyone who “engages in unauthorized
> financial intermediation”, is completed in Article 116 the
> second paragraph, which defines financial intermediation as
> the gathering of financial resources from the public in a
> habitual manner, for the purpose of investing them, at the
> intermediary’s expense and risk, in any type of lending or in
> securities, irrespective of the contractual or legal mode or
> the type of document, electronic record or any similar means
> employed in the transactions.”
>
> Observe that the legal definitions that apply in this case
> require: Not only is it necessary to engage in habitual fund
> gathering, but also to invest those funds in something
> specific, expressly defined by the legislator –any form of
> money lending or investment in stocks and bonds. It is not
> enough that funds be gathered for the purpose of investing
> them; the legislator stipulates that the investment must be
> made in some form of money lending or be backed by stocks and
> bonds (securities). Any other form of investment made with
> the gathered funds does not constitute financial
> intermediation, and therefore, to engage in those activities
> without legal authorization does not constitute a crime, and
> it is an unsanctionable act from the legal standpoint.
>
> In the case of the Villalobos brothers, the prosecution has
> been referring to illegal financial intermediation as if it
> meant merely gathering funds and paying interests, in
> flagrant disregard for the rest of the description of the
> criminal type as presented a few lines earlier, and what is
> clearly stated in Article 116 of the Organic Law of the
> Central Bank. In all the cases in which the Public Minister
> and the Criminal Office has cited the crime of illegal
> financial intermediation prior to January 2004, they have
> ignored the legal destination of the funds, acting in total
> negligence with respect to the real legal definition,
> justifying the preventive custody of the accused Osvaldo
> Villalobos-Camacho on the mere grounds of fund gathering from
> the public. We may cite many requests made by the prosecutor
> and judicial resolutions, but all of them are summarized on
> folio 2 of the writ of extension of preventive custody
> dictated by the Criminal Court of San Jose at 13:00 on May !
> 27, 2003:
>
> “The investigations conducted based on the documentation and
> reports obtained from the raid and search carried out in the
> mentioned month [referring to July 2002], try to demonstrate
> the likelihood that through the OFINTER S.A. firm and other
> related businesses and enterprises, Mr. Osvaldo
> Villalogos-Camacho was involved in the illegal activity of
> financial intermediation, that is, in gathering funds from
> public investors and paying interests in exchange, all
> without such activities being registered with the
> Superintendence of Financial Entities and without the
> oversight of that agency.”
>
> It is quite evident that the Criminal Court persists in
> interpreting the criminal type with partiality, making legal
> acts illegal, that is, violating the true intent of the law
> and infringing on the personal liberty of the defendants, the
> Villalobos-Camacho brothers. It is impossible that at this
> stage of the game those responsible are incapable of reading
> the law correctly. One can easily deduce from articles 116
> and 157 of the Organic Law of the Central Bank that the
> described conduct requires that the funds gathered be use for
> a particular purpose, that is, money lending or investment in
> securities. To assert, as in the quoted resolution, that the
> mere gathering of funds and payment of interests constitutes
> the crime, is reckless and misleading.
>
> Delving more deeply into this matter, the General
> Superintendent of Financial Entities, Mr. Bernardo Alfaro,
> testified before Prosecutor Espinoza stating that the actions
> of the Villalobos brothers could not be classified as the
> crime of illegal financial intermediation since the funds
> were not used for the purposes specified in the respective articles.
>
> Prosecutor Espinoza and the Criminal Justice Office are also
> attempting to classify the Villalobos-Camacho brothers’
> actions as money laundering. The Criminal Justice Office
> asserts in the above-mentioned resolution issued at 13:00
> last May 27 that the accusation “is based on the fact that
> through the structure of financial intermediation established
> through OFINTER, money derived from grave crimes including
> drug trafficking that were mobilized for the purpose of
> covering up their illicit origin and thus favoring those
> involved in such criminal activities . . . , probably
> mobilized funds arising from the drug trafficking of Henry
> St. Onge and Sandra St. Onge, people accused of drug
> trafficking in Canada.”
>
> These assertions of the Criminal Court are nothing more than
> mechanical repetitions of Prosecutor Espinoza’s flimsy
> arguments, and do not line up with the truth of the
> documentation contained in the legal case file. What gave
> rise to the case in the first place was the request from the
> Canadian Government for international cooperation in ordering
> the intervention and search of the St. Onges’ residences in
> Costa Rica, and the offices of the Villalobos-Camacho
> brothers, supposedly because it was needful for the
> investigation conducted by that country. Surprisingly, the
> letter of request sent by the Canadian Government is not
> included in the file, but rather is transcribed according to
> the interests of the Prosecutor in his request, and
> curiously, the Criminal Justice Office takes it up in the
> same manner. But at the bottom of each page of the actual
> letter of request, one finds the following clarification:
>
> “All of the information contained in this request is part of
> a police investigation and consists of unproven allegations.”
>
> Moreover, from the Prosecutor’s petition one gathers that Mr.
> St. Onge has not been accused of any crime in Canada; what it
> states is that he was convicted of a crime in the United
> States in 1976 (!!!), for conspiracy to import marihuana, but
> the sentence was suspended. In other words, the Criminal
> Court is untruthful when it states in its resolution that
> extends the time of preventive custody for Osvaldo Villalobos
> that St. Onge is accused of drug trafficking in Canada, when
> in reality, that man died on March 10 last year, thus making
> it impossible to investigate him. The letter of request
> itself clearly states that what was under police –not
> judicial– investigation was an assumption impossible to prove:
>
> “The Royal Mounted Police of Canada opines that the money
> will be used in a short while to finance the purchase of a
> large quantity of cocaine to be smuggled into Canada.”
>
> There is no evidence at all that the St. Onges’ money had
> come from any crime, since no crime had even been proven in
> their country, and therefore it is not possible to charge the
> Villalobos brothers with money laundering when there is no
> money to launder.
>
> And what is even graver is the fact that after raiding the
> St. Onges’ condominium in Jacó, absolutely no evidence was
> found that would link those Canadians with the business of
> the Villalobos-Camacho brothers. What was actually
> confiscated was a savings passbook and a checkbook which show
> that they managed their funds legally --until the contrary
> can be proven-- through the National Bank of Costa Rica. Thus
> it is truly astounding that Prosecutor Espinoza and the
> Criminal Court have not show the same care, enthusiasm and
> eagerness to place the staff of the national bank under
> preventive custody and freeze the accounts of that banking
> institution. It is clear, then, after 18 months of
> investigation, including raids on the Canadians’ condominium
> and the offices of the Villalobos-Camacho brothers, that
> there is no evidence whatsoever that links them.
>
> In the above-mentioned judicial resolution, the Criminal
> Court states that monies arising from grave crimes, even drug
> trafficking, have been mobilized, and throughout the case
> file only the St. Onges are mentioned, one of which passed
> away 15 months ago, and who could no longer be the object of
> a police investigation, unless they intend to violate the
> rights of the deceased. What exactly are the other grave
> crimes whose proceeds are mobilized through the Villalobos
> brothers enterprises? Who are the perpetrators of those
> “grave crimes” referred to by the Criminal Justice Office
> citing no more than a dead man and his surviving wife, whose
> savings were mobilized through the a branch of the National
> Bank of Costa Rica in Jacó?
>
> Of course, the Prosecutor could respond by saying that he has
> other evidence to warrant the continuance of the case under
> investigation, but no such explanation is found in the case
> file. It is evident that his response would be inappropriate
> for a matter of such magnitude. Neither would it be
> appropriate to respond that in order to support the case, he
> is investigating all persons who deposited money through the
> Villalobos brothers, with which it would be found that there
> is no case at all for money laundering, since for this
> criminal charge one must prove the commission of a felony
> that would make it necessary to legitimize that capital with
> the intent of concealing its illegal origin. If by now he has
> not established so much as one felony committed by the over
> 6,000 investors, what is reflected is the reckless and
> arbitrary behavior of the Prosecutor and the Criminal Court
> to the detriment of the Villalobos brothers.
>
> Fraud is another charge the Prosecutor makes against the
> Villalobos-Camacho brothers. This one is just as ludicrous as
> the others. The Criminal Justice Office asserts in its
> well-known resolution that the fact on which this alleged
> commission of this crime is based is that the brothers
> promised to pay high interests and the investors were given
> as collateral for their investment a check written with
> insufficient funds. In the first place, the interests were
> paid religiously, until the Prosecutor ordered the closing of
> the business and the Judge consented to it; until the
> Prosecutor ordered the freezing of the accounts and the Judge
> consented to it.
>
> Obviously, with the business shut down and the accounts
> frozen it was materially impossible to pay interests, even
> low interests, and much less return the principal to all of
> the depositors. Secondly, the checks do not have funds
> because they are to be paid only when a bank cashier verifies
> that condition and indicates the corresponding reason on the
> reverse of each check. Before such time, the check can be
> cashed, except in the case before us in which the Judge
> orders the freezing of the accounts, making it impossible,
> funds or not, to cash even one check.
>
> Weakness of the charges for illegal financial intermediation.
>
> Article 157, subsection a) of the Organic Law of the Central
> Bank establishes a prison sentence of three to six years for
> anyone involved in unauthorized financial intermediation,
> which is classified as the crime of “illegal financial
> intermediation.” The objective classification is constituted
> by the definition of financial intermediation, which is not
> some abstract or subjective concept to be liberally filled in
> by the judge and much less by the Prosecutor. To even begin a
> case for this crime, one must have a clear understanding of
> the legal definition of financial intervention, because it
> does not suffice to merely engage in financial activities
> without legal authorization, but rather to indict a person
> for this crime, the activities involved in the financial
> intermediation must be precisely those set forth in the law.
>
> Therefore, it is perfectly possible to engage in financial
> activities without the authorization of the SUGEF and still
> not commit a crime, simply because those do not fall under
> the legal classification of financial intermediation.
>
> Article 116 of the Organic Law of the Central Bank sets forth
> the precise concept of financial intermediation as follows:
>
> “…For the purposes of this law, financial intermediation is
> understood to be the habitual gathering of financial
> resources from the public, for the purpose of using them, at
> the expense and risk of the intermediary, in any form of
> money lending or investment in securities, regardless of the
> contractual or legal modality followed or the type of
> document, electronic registration or any similar instrument
> employed to formalize the transactions. . . .”
>
> This description clearly defines financial intermediation,
> and to classify any action as such, it must meet all of the
> particular criteria set forth. Specifically, the crime
> involves the habitual gathering of resources for the purpose
> of money lending or investment in securities (i.e., stocks
> and bonds). For the classification of this crime, it is not
> enough to engage in fund gathering or to do so habitually,
> for that is only the first part of the definition and does
> not therefore in and of itself, constitute a crime.
>
> We certainly accept, reiterate and acknowledge in this case
> that Luis Enrique Villalobos did indeed engage in fund
> gathering by receiving checks and cash from banking and other
> financial institutions regulated and monitored both inside
> and outside the country. The investors would deposit their
> money for the purpose of earning interests paid periodically,
> trusting that their money would be returned at the end of the
> agreed term. Mr. Villalobos did not habitually use those
> funds either for money lending or for investment in stocks
> and bonds; he did possibly invest in business activities that
> generated enough profit to pay the agreed interest rates,
> with the additional advantage of having much lower overhead
> than other financial institutions.
>
> The case file contains the names of the investors and the
> amounts of their investments, but despite having raided the
> offices and confiscated thousands of documents, after a year
> and a half of investigation, there is absolutely no evidence
> that Mr. Villalobos was using the gathered funds for money
> lending or investment in securities. Observe that the
> above-mentioned Article 116 establishes not only the
> criterion of investing the funds but also that of investing
> those funds in securities.
>
> The most deplorable action on the part of the Prosecutor in
> this case is that he has simply ignored the SUGEF’s technical
> opinion, thus failing to maintain the level of objectivity
> required by articles 6 and 63 of the Criminal Process Code.
> It is truly surprising that, notwithstanding the fact that
> twice (the first time publicly in November 2002 through the
> written press) the responsible State body for determining the
> existence of financial intermediation has indicated that the
> criteria for financial intermediation have not been met in
> Mr. Villalobos’s case, the Prosecutor persists in going on
> with the investigation of the matter.
>
> In November 2002 the SUGEF published a paid announcement in
> which it clearly indicated that in its opinion, the
> Villalobos brothers and the companies they own had not
> engaged in financial intermediation. Perhaps one could
> hypothesize that the Prosecutor does not read the newspapers
> or that he has not grasped the technical opinion presented in
> the report. What is unacceptable is that since July 2002 and
> for eight months thereafter he did not formally request the
> SUGEF’s opinion, even though it is the technical body with
> the expertise needed to determine the existence of financial
> intermediation. It was not until the defendant
> Villalobos-Camacho demanded it that testimony was heard from
> head of the SUGEF, who in unequivocal clarity stated that no
> financial intermediation had been proven, despite a lengthy
> investigation of the matter in search of evidence.
>
> In this regard, Dr. Bernardo José Alfaro-Araya, the General
> Superintendent of Financial Entities, in a statement given at
> 10:30 on March 4, 2003 indicated, as recorded in the court
> file: “. . . we could not demonstrate that any financial
> intermediation had taken place. I am a financial
> intermediary, if at my own expense and risk I gather funds
> and I invest them . . . .” Dr. Alfaro adds, “. . .what we did
> verify was that Mr. Villalobos gathered funds from third
> parties, but we could not prove that he invested the money in
> securities or money lending . . . .” Dr. Alfaro further
> stated how the SUGEF itself had never determined that any
> movements of that type had been engaged in, whether
> investments in securities or money lending, with the
> investors monies, but only that the funds had been gathered.
> In this same vein, Dr. Alfaro went on to say: “. . . based on
> the depositions taken from Mr. Nash and Mr. Clinto, we were
> able to verify that the money gathered was from third partie!
> s, but we could not determine that financial intermediation
> was taking place . . . .”
>
> What was surprising and unacceptable in that statement is the
> fact that Mr. Roldán, apparently from OIJ, asserts that the
> SUGEF cannot say that there was no financial intermediation
> taking place. In a manifestation that was totally partial,
> subjective and unacceptable in a preliminary procedure aimed
> at determining the truth about the facts, the OIJ
> representative expects the SUGEF to prove a negative –that no
> financial intermediation had occurred.
>
> Dr. Alfaro had already stated clearly that since 1999 they
> had been investigating Mr. Villalobos and that they could not
> prove any engagement in financial intermediation.
> Nonetheless, the Prosecutor and the OIJ wants the SUGEF to
> tell them what they want to hear. But since the SUGEF in its
> capacity as a technical body declares, after four years of
> investigating Mr. Villalobos, that there was no financial
> intermediation, they ask the judge to authorize them to
> continue the investigation, having neither the training nor
> the technical knowledge necessary to determine the existence
> of financial intermediation.
>
> Since July 2002 they have had access to all of the documents
> concerning Mr. Villalobos. Since January 1999 the SUGEF had
> unsuccessfully attempted to prove that the Villalobos
> brothers were engaging in financial intermediation. To
> attempt now to demonstrate that the case is complex when they
> have at their disposal the studied technical opinion that
> denies the existence of the crime is an abuse of power.
> Certainly the judge ought not contribute to something so
> incongruous: This case is not complex but simple; it is clear
> that no financial intermediation was taking place, as the
> SUGEF has stated and restated. The judge should rather reject
> the case for the charges of illegal financial intermediation
> and request that it be shelved.
>
> Weakness of the fraud charges.
>
> Several investors have filed suit for the alleged crime of
> fraud supposedly committed by the defendants in this case.
> All of those suits were filed subsequent to the start of this
> investigation in July 2002, and they demand that the money
> collected by Mr. Villalobos be returned since it is
> impossible for them to cash the checks written out to them
> due to the freezing of the accounts in the banks of the
> National Banking System.
>
> The crime of fraud is described in Article 216 of the Penal
> Code as follows:
>
> “Anyone by leading another person into error or causing that
> person to continue in an erroneous course through the
> simulation of false facts or through the distortion and
> concealment of the true facts to obtain illegal patrimonial
> benefits for him/herself or for a third party, who infringes
> on another’s assets, shall be sanctioned in the following manner:
>
> 1)…
>
> 2)…
>
> The preceding prison sentences shall be increased by a third
> whenever the stipulated acts are carried out by any agent or
> administrator of an enterprise that obtains, entirely or
> partially its funds from the savings of the public, or
> obtains them through anyone, who personally or through some
> unregistered entity, of any nature, that has obtained the
> resources either entirely or partially from the savings of
> the public.”
>
> Fraud is a patrimonial crime, and the criminality of the
> action is derived from a type of deceit categorized as
> defraudation. The Superior Criminal Appellate Tribunal in
> Resolution No. 397 issued at 12:25 on May 12, 1997 conceives
> of it in the same way:
>
> “Defraudation, understood as any patrimonial harm inflicted
> through deceit, is a generic definition that encompasses
> several types, among which are stellionate and fraud, which
> are, therefore, special forms of defraudation.”
>
> Plainly, then, fraud has both objective and subjective
> components. Within the objective component there are elements
> of deceit, misleading of a passive subject, a dispositive act
> on the part of the deceived person and some resulting
> economic harm. The subjective component includes the fraud,
> which necessarily must be aimed at the aforementioned
> objective (which may be direct or incidental). Likewise, the
> Court in that same resolution goes on to clarify:
>
> “The crime of fraud (for the purposes of sentencing) can be
> divided into two major parts, namely the objective and the
> subjective. The objective part of fraud is comprised of four
> elements: (a) Some form of ruse or deceit, defined in the
> text as the simulation of false facts and the distortion or
> concealment of true facts; (b) An error in the passive
> subjective –the deceived person–, whether that person is led
> into error or is kept in it; (c) A dispositive act of the
> deceived; and, (d) Some economic damage. And the subjective
> part of fraud is dolus (ill-intentioned deceit), which must
> necessarily be aimed at the objective part.”
>
>
>
> All of the cases directed against the Villalobos-Camacho
> brothers are flawed by a serious conceptual error, which
> being so obvious ought not have escaped the intelligence of
> the Prosecutor right from the start. In the first place,
> there has been no ruse or deception, that is, a simulation of
> false facts or a distortion or concealment of the true facts.
> For over 15 years Enrique Villalobos ran a system of fund
> gathering with payment of interests to the investors and
> subsequent return of the principal invested at the appointed
> time. There was never any ruse or deceit, nor was there any
> pre-established intent to deceive or entice people into
> handing over their money. In all of the cases known in Costa
> Rica in which funds were not returned by the financial
> agencies and even banks that have shut down their operations,
> complaints are filed when those entities cease paying their
> clients of their own accord and because they are unable to
> honor their obligations. The investors normal! ly arrive
> some Monday only to find that the facilities are closed and
> those responsible for the business are already outside of the
> country without having owned up to their actions. In this
> case the situation is entirely different.
>
> Mr. Villalobos’s business serving over 6,000 investors was
> totally normal until July 4, 2002. That day the police shut
> down the facilities from which the business operated. They
> seized papers and support documentation and froze the
> accounts of the defendant Villalobos-Camacho. Despite that
> incident, Mr. Villalobos continued to honor his obligations
> to return the gathered funds, until the total shutdown of the
> business made it impossible to continue doing so and the
> unprecedented incarceration of his brother prompted him to
> exit the country. Observe that the closing of his operations
> was not prompted by Mr. Villalobos but rather by a judge’s
> decision. Then, in the face of the freezing and immobilizing
> of his bank accounts, it was materially impossible to return
> the funds gathered, being that no means of transferring funds
> out of those accounts was left. All of this clearly
> demonstrates the non-existence of any fraud aimed at the
> objective parties to their economic detriment.
>
>
>
> It is revealing to observe that all of these fraud
> accusations come about after the operations and accounts are
> shut down by the judicial authorities, which suggests that at
> no time was the economic damage, with which the investors are
> still being inflicted, ever instigated by Mr.
> Villalobo-Camacho’s decision, but rather was produced by an
> external decision beyond the control of the defendant.
>
>
>
> It is quite evident that Mr. Villalobos could not have
> foreseen the closing of his operations and his accounts with
> an eye to reneging on his obligations, since that would mean
> even the Judicial Power and the Prosecutor would have to be
> accomplices of the alleged fraud.
>
>
>
> Neither is it logical to suppose that the Prosecutor would
> claim that the economic damage and the failure to fulfill the
> obligation of returning the money has somehow magically
> transformed a civil offense into a crime punishable by
> something akin to a debtors’ prison.
>
>
>
> One distinguishes no complexity to this case, because there
> is no case. Clearly, there has been no scheme aimed at the
> objective type of fraud, nor any ruse or deceit devised by
> Mr. Villalobos to swindle the investors out of their money.
> It is remarkable that the accusations were not discarded at
> the onset. The crime of fraud could have been alleged, if Mr.
> Villalobos had suddenly and voluntarily shut down his own
> operations and immediately fled the country, which would have
> been indicative of a premeditated ruse or deceit. However, it
> didn’t happen like that; no, the closing was the result of an
> external, uncontrollable action. It is preposterous to
> classify the case as complex merely on the basis of the
> number of victims, when it is clear there was never any
> deception aimed at committing fraud, as was already shown.
>
>
>
> Hence, we see in this specific case there has been absolutely
> no fraud, being that the element of deception is missing,
> because the Villalobos brothers had no intention of deceiving
> or tricking anyone. There never was a single complaint filed
> by any investor until Mr. Villalobos’s accounts were frozen,
> and it obvious that under those conditions it is impossible
> to return the money. It is important to add also that the
> accusations made for the crime of fraud were not initiated
> until after July 3 and 5, 2002, the dates on which the
> Criminal Court of the First Criminal Circuit of San Jose
> ordered the immobilization of the money and the lawsuits were
> filed by Attorney Acuña in September 2003.
>
>
>
> Likewise, it is clear that Mr. Villalobos never had any
> intention of appropriating any money for himself, since the
> freezing of the accounts is the real cause of not returning
> the invested funds.
>
> Weakness of the resolution related to the freezing of the accounts.
>
> The Criminal Court’s resolution issued on April 25, 2003
> states that the freezing of the accounts of the defendants
> and their enterprises is based on the application of articles
> 110 of the Penal Code and 198 and 199 of the Criminal Process
> Code. It must be remembered that thus far only charges for
> the crime of illegal financial intermediation have been
> investigated, and that is based on that alleged offense that
> Osvaldo Villalobos-Camacho has been jailed under the pretext
> of preventive custody, raids and seizures have been conducted
> and the application of the procedure of complex process for
> the case has been requested and granted.
>
> The regulation cited by the Criminal Justice Office is
> totally inapplicable to this case. The aforementioned
> articles establishes the following:
>
> “Article 110.- Confiscation
>
> The crime results in a loss in favor of the State of the
> instruments with which the crime was committed and of the
> things and values arising from their use, or which constitute
> for the agent some advantage derived from the crime,
> excepting the right that the offended party or third parties
> may have over those instruments.
>
> Article 198.- Warrant of seizure
>
> The judge, the Public Ministry and the police may decide to
> collect and hold the articles related to a crime, both those
> subject to confiscation and those that could serve as
> evidence; for that purpose, whenever necessary, a seizure
> will be ordered. In urgent cases, this measure may be
> delegated to an executive of the judicial police.
>
> Article 199.- Seizure procedure
>
> The provisions prescribed for a search shall be applied to a
> seizure. The articles seized shall be inventoried and placed
> in safekeeping.
>
> Copies or replicas of the objects sequestered may be made
> whenever the originals could disappear or be altered or they
> are difficult keep, or whenever it is advantageous to do so
> for investigation.”
>
> It is clear, then, that the financial resources collected
> from the investors are not objects related to the crime of
> illegal financial intermediation, and much less instruments
> used to commit the crime, nor are they valuables produced
> through committing the crime. Even if that crime had been
> committed, certainly the frozen funds belong to third
> parties, since the Criminal Justice Office itself permits
> such actions. It is completely illegal to hold those funds
> whenever the conditions of the mentioned regulation are not
> met. Moreover, what the judge concludes, saying that the
> sequestered funds are only a small portion of the total
> amount invested, is totally improper, because that statement
> actually reflects the fact that those resources belong to
> third parties and not the defendants. Purporting that the
> freezing of accounts is justified because of alleged money
> laundering would oblige the Prosecutor and the Judge to
> follow the procedure established in the Narcotics Law in not!
> ifying the possible interested third parties with the
> greatest rights, which has thus far not been done.
>
> SIXTEENTH POINT:
>
> The Court and Appellate Tribunal granted the Prosecutor an
> absolutely inappropriate process of complex procedure, which
> allowed him to lengthen the terms in which to complete the
> investigative phase.
>
> This type of procedure is regulated by Article 376 and
> articles following of the Criminal Process Code, which states:
>
> “Whenever the process is complex because of the multiplicity
> of facts, the large number of defendants or victims or with
> any case related to the investigation of any form of
> organized crime, the court, through an official letter o
> request from the Public Ministry shall authorize, by a
> well-founded resolution, the application of special norms
> contemplated under this Title . . . .” (The boldface is ours.)
>
>
>
> For this case, the requirements established in the
> above-cited article are lacking. The wording of the article
> indicates that this has to do with an exception procedure and
> as Lic. Rosario Fernández-Vindas well states in her article
> entitled “Complex Process Matters”, contained in the
> collective work, Reflexiones sobre el Nuevo Proceso Penal
> (Reflections on the New Criminal Process), only in
> exceptional cases, and only with timely notification of those
> affected, is it to be authorized. The interpretation for the
> application of this process is to be restricted, inasmuch as
> the extension of time limits will affect the rights of the
> defendants and the victims, placing at risk the application
> of the right to timely, consistent justice and to be tried in
> a reasonable timeframe, as established by the Political
> Constitution, the San Jose Pact and Article 379 itself of the
> Criminal Process Code.
>
>
>
> It is important to point out that the first thing the
> Prosecutor must prove when he requests the application of
> this procedure is that there indeed exists a clear and
> unmistakable difficulty in processing the case, because first
> the complexity of the case must be established and then the
> reasons for the request studied to ensure that they line up
> with those specifically stipulated in Article 376. It can
> well be that there are a large number of victims without
> there being any difficulty in processing the case, or that
> there are multiple facts involved but which are easy to
> process: The legislator required that first that one
> establish the complexity of the process and that the
> complexity was for one of the cited reasons. Thus, if the
> complexity of the case is due to any of the causes
> enumerated, the procedure may be authorized; on the other
> hand, if there are a large number of defendants or victims,
> or many facts involved, or even if organized crime is
> involved, but, “. . .if!
> there is no complexity or difficulty in the investigation,
> the procedure of complex process shall not be authorized”
> (Fernández, p. 766).
>
>
>
> For the 18 months that the General Attorney has been
> conducting an investigation of the case within the
> preliminary procedure, he has not found any evidence or even
> sufficient indications to transform the charges made into an
> indictment, according to Article 303 of the Criminal Process
> Code. One of those charges has been under investigation since
> 1999 –four years–, and the Prosecutor to date has not been
> able to find enough evidence upon which to base even one indictment.
>
>
>
> It is clear that that the purpose of the preliminary
> procedure is to determine if there are any grounds for a
> trial, through the gathering of information that would make
> it possible to found an indictment and the defense (Article
> 274 of the Criminal Process Code). Nevertheless, it is
> obvious that to begin the preliminary procedure and
> especially when preventive custody, raids and confiscations
> have been ordered, the Prosecutor should have done a prior
> study so as to determine whether there was any fairly sound
> reason for doing so. Otherwise, the Prosecutor would order
> the arrest of people and carry out confiscations and raids
> with the authorization of the Judge with no justification
> whatsoever. We believe that in this case a long enough time
> has elapsed for the completion of the preliminary procedure,
> be it through rejecting the case, dismissal or any other
> conclusive act specified in Article 299 of the Criminal
> Process Code, or else by presenting an indictment requiring the!
> opening of a trial, as stipulated in Article 303 of the same code.
>
>
>
> In this case the Judge has granted all of the Prosecutor’s
> requests: Throughout 18 months the Judge has permitted the
> Prosecutor to raid offices and premises of the defendants,
> confiscate articles they own and even some that belong to the
> depositing investors, access all the papers and supporting
> documents of the companies of the defendants, and since
> November 2002, facilitated by a judicial order, to detain in
> prison one of the defendants under the pretext of preventive
> custody. On the other hand, he has consistently rejected
> requests to cease the preventive custody measures while
> receiving all the technical information from the responsible
> government agency in charge of overseeing financial
> intermediation, such as the General Superintendence of
> Financial Entities. For 18 months the Prosecutor has had
> access to the list of investors and has encouraged the filing
> of criminal charges for fraud in the Victims Protection Office.
>
>
>
> The resolution of the Criminal Court of San Jose issued on
> 16:45 on April 25, 2003, by the Criminal Court of San Jose,
> which declared this case to be of Complex Process is not duly
> founded, contravening the provisions of Article 376 of the
> Criminal Process Code. Observe that to date the only charges
> investigated are those related to the crime of illegal
> financial intermediation allegedly committed by the
> Villalobos brothers, being that the Prosecutor supports his
> request exclusively on that basis. The Judge backs him and
> grants that petition based on a scant 15-line paragraph, in
> which he affirms that the cause is complex due to the
> multiplicity of facts and the large number of victims
> involved. Let us analyze these circumstances.
>
>
>
> The Judge asserts that there are a multiplicity of facts
> involved in the case, because the gathering of funds from the
> public was maintained over the years and generated countless
> facts, which is certainly debatable. The facts pertaining to
> the crime of illegal financial intermediation do not need to
> be investigated with respect to fund gathering, because that
> has been duly proven and accepted. It is not necessary to
> investigate whether there was any fund gathering taking
> place, because that is quite evident, proven in the legal
> file and accepted by the defendants. What does not exist, and
> shall be shown, is any evidence whatsoever of involvement in
> money lending or investment in securities using the financial
> resources gathered. Hence the resolution is improperly supported.
>
>
>
> The other criteria the Judge relies on to establish that the
> case is complex is even weaker. The cited crime is defined in
> the Organic Law of the Central Bank of Costa Rica without
> establishing the legally protected asset, which shows that it
> is dealing with a victimless crime, typically formal and is
> constituted by a fraudulent, objective act. The only thing
> affected by illegal financial intermediation is the legal
> code itself, the law and the SUGEF’s dignity, but the law is
> not established for the purpose of protecting legal
> patrimonial assets. It may well be that a financial
> intermediary acts illegally, but fully honors its obligations
> and the agreed payment of interests, and likewise returns the
> principle upon expiration of the contracted term. This shows
> that this has to do with a formal crime.
>
>
>
> The alleged victims are not victims then because of the
> alleged commission of that crime, but because, it seems, that
> the Prosecutor and the Judge are referring to the accusations
> for fraud. The weakness is evident in the total lack of
> grounds in this sense, which will be dealt with in greater
> depth below.
>
>
>
> SEVENTEENTH POINT:
>
> Judge Sánchez alters the Prosecutor’s petition and is not
> capable of carrying out his own decisions.
>
> This past January 22, Prosecutor Walter Espinoza, in charge
> of the Villalobos case requested that Judge Francisco Sánchez
> extend the house arrest order against Osvaldo
> Villalobos-Camacho for another four months, leaving open the
> possibility of requesting new extensions. In other words, the
> Prosecutor was clear in the sense that Osvaldo should stay
> home under a so-called house arrest. At no time did he ask to
> suspend the house arrest nor that the defendant be incarcerated.
>
> Nonetheless, in a completely inexplicable act, Judge Sánchez
> ruled this past January 27 to rescind the house arrest order
> for Osvaldo Villalobos and dictated his preventive custody
> for a period of three months, expiring in April 27 of this
> year. Even worse, the Judge asserts at the beginning of the
> resolution that the Prosecutor had recommended the preventive
> custody, when in reality it was quite the contrary, as
> pointed out. The judge prevaricates and bases his resolution
> on a falsehood and even states that he is granting the
> Prosecutor’s petition that the house arrest be rescinded and
> preventive custody be dictated, when the truth is the
> Prosecutor had backed the house arrest.
>
> But the lamentable role of Judge Sánchez does not end there.
> In the last page of the resolution, the Judge establishes
> that Osvaldo must be placed in a Police Force Headquarters
> rather than in the Penitentiary System, citing his health as
> the reason, and nevertheless allows the person whose freedom
> he ought to ensure to be sent to a jail, in stark
> contradiction to his own decision. Since last February 3,
> when the resolution was legally challenged, Judge Sánchez has
> not owned up to his action nor addressed this deplorable
> situation. Perhaps over the next few days the Constitutional
> Court or even the Superior Criminal Court will repeal that
> preventive custody order on Mr. Villalobos. But once again
> Judge Sánchez erroneously interprets and applies the Law and
> in so doing, tramples on the rights of a citizen, when it is
> his duty to defend them.
>
> EIGHTEENTH POINT:
>
>
> The Prosecutor and the Judge are arbitrary in this case and
> omit the investigation of the Banks in which the Canadians
> deposited their monies.
>
> >From the onset of this case, the Defense has requested
> consideration of
> >the fact that the Canadian Government had solicited reports
> of all of
> >the financial entities in which the Canadians citizens under
> >investigation had deposited funds. Thus far, from at least
> two banks,
> >deposit records were found pertaining to those two Canadians
> and, yet,
> >the Prosecutor does not apply the same criteria and zeal in
> the process
> >and opens no case against the people in charge of those entities. He
> >takes note of this fact, but he shirks his duties, thus
> causing one to
> >believe that he must have a persecutory attitude against the
> Villalobos
> >brothers. It does not concern him that the Canadians opened
> accounts in
> >Costa Rica, but only that they might have had investments with the
> >Ofinter firm, Luis Enrique or Osvaldo Villalobos.
>
> NINTEENTH POINT:
>
> The Prosecutor recognizes that there is no evidence as to the
> existence of accounts of the Canadians with the Villalobos
> Brothers, yet he continues with the case.
>
> The origin of the case against the Villalobos brothers, as
> indicated earlier, was the Letter of Request sent by the
> Canadian Government in June 2002. The letter alleged that the
> Canadians had deposits with the Villalobos brothers and that
> could possibly evidence the Villalobos brothers’
> participation in the crime of money laundering. Believe it or
> not, after 18 months of investigation, the Prosecutor only
> manages to write on January 22, 2004, in a communication
> addressed to Judge Sánchez, folio 1961 of the file, that the
> only evidence of the value of the account is a promissory
> note presently located at the condominium in Playa Jacó,
> Costa Rica, which was not found during the initial raid of
> the condominium on July 4, 2002.
>
> This sentence is transcribed verbatim from the Prosecutor’s
> record. Incredible indeed that after 18 months of
> investigation, the Prosecutor would acknowledge that there is
> absolutely no proof that the Canadians had any accounts with
> the Villalobos brothers --because the alleged promissory note
> was not found in July 2002, 18 months before. I hope
> Prosecutor Espinoza does not expect us to believe that the
> promissory note that supposedly exists could somehow appear
> two years after the raid, considering that the place has not
> been under any kind of surveillance or care.
>
> The Prosecutor’s phrase is a monument to ignorance and
> ill-will. To assert that a promissory note would be found in
> a place 18 months after the first fruitless search, is
> characteristic of a negligent, careless official, to say the
> least. But it seems rather the result of a desperate person
> who has made irresponsible statements, which now he is unable
> to prove. If the promissory note is the only evidence of the
> alleged investment, and it did not show up in the raid of the
> condominium in July 2002, it simply does not exist, and even
> it were found there and was not seized, after so many months
> the sudden appearance of such a document would be absolutely
> spurious. A responsible Prosecutor should admit that he has
> no evidence at all of the existence of the Canadians’
> investment with the Villalobos brothers, other than the
> statements made in Canada without the oversight of the
> Defense and with no investigative findings to back them up.
>
> TWENTIETH POINT:
>
>
> The Prosecutor falsifies the truth in relation to the
> accusation against Sandra Kerwin St. Onge in Canada.
>
> On folio 1960 of the case file, the Prosecutor states that
> the Ms. Kerwin-St. Onge was accused of the crime of “profit
> derived from a crime related to assets in Costa Rica.” That
> accusation did not exist, and it is from such statements
> about that woman that leads to the deduction concerning the
> existence of the aforementioned promissory note. The only
> assets referred to in the Canadians’ case is the condominium
> purchased in Jacó and the Canadian Judge’s request to claim
> the money allegedly deposited with the Villalobos brothers.
> But since the request was signed on March 10, 2003, no formal
> steps have been taken in Costa Rica nor does there exit any
> proof that it was ever sent to this country through the
> corresponding channels.
>
> The Prosecutor again alters the facts and makes statements
> that he knows are untrue, with the intent to confuse the
> Judge and public opinion.
>
> TWENTY-FIRST POINT:
>
>
> The Prosecutor has improved his knowledge in the criminal
> matter of illegal financial intermediation but still does not
> understand it.
>
> Throughout the process of the investigation, the Prosecutor
> has insisted that the criminal classification of financial
> intermediation was constituted by mere fund gathering without
> authorization. After repeated arguments making it very plain
> that it is was also necessary to demonstrate that those
> habitually gathered funds needed to be used for money lending
> or investment in securities, possibly he finally read the
> legal criminal description and became concerned enough to
> investigate whether or not the funds gathered were being used
> for money lending or investments in securities.
>
> In that remarkable communication of January 22, he continues
> to repeat something no one is denying, namely, that the
> Villalobos brothers were engaged in habitual fund gathering
> activities. Now, however, he states that “a substantial
> portion” of the money collected was invested in stocks and
> bonds (securities). After asking the OIJ and other agencies
> for reports, he found only one alleged investment, which he
> also fails to demonstrate. On folio 1916, he says that on
> March 18, 2002, Mr. Osvaldo Villalobos signed a contract with
> the Banco Popular to participate in an investment fund and
> that on June 19 he authorized the purchase of Costa Rican
> external debt bonds for the amount of three million dollars
> and for that purpose he used checks written by the investors.
>
> Frankly, the Prosecutor’s conclusion is astonishing. First of
> all, since there is no record anywhere of the Mr.
> Villalobos’s signed authorization for this investment, it
> cannot be stated that it even occurred. Secondly, after 18
> months of investigation and showing that the Villalobos
> brothers collected hundreds of millions of dollars, there
> appears only that one alleged investment, in absolutely
> secure bonds pertaining to this country’s own external debt.
> No one in his right mind would consider that just one
> investment reflects a habitual practice and much less would
> think that the purpose of money gathered to pay the rate of
> interest that was actually paid to the investors would have
> come from those securities because their rate of interest is
> substantially less. In that unproven alleged investment there
> was no risk, being that it had to do with external debt
> securities issued by the government of this country.
>
> The other alleged investments that the Prosecutor tries to
> show were made are nothing of the kind. What was occurring,
> rather, was the cashing of checks by a stockbroker, as
> indicated in folio 1917. To cash a check is definitely not an
> investment in securities, even though the stockbroker may do
> it, and if that firm is not authorized to engage in the
> activity, that is not the responsibility of the Villalobos brothers.
>
> TWENTY-SECOND POINT:
>
> The Prosecutor’s document dated 22 January, 2004 is
> incorrectly collated and in that manner was supposedly read
> by Judge Sánchez.
>
> Starting at folio 1921 of the file, the data entry operator
> who typed the document, working at the Prosecutor’s office,
> erred in his work, and from folio 1922 to 1935 the document
> is repeated, without anyone having noticed it, much less
> Prosecutor Espinoza, who is the one who signed it. With this
> error, the document is practically incomprehensible, but that
> is no problem for a person who receives it without reading it.
>
> TWENTY-THIRD POINT:
>
> A mysterious document appears named Alternative Emergency
> System that for the Prosecutor represents proof that the
> Villalobos Brothers intended to evade their legal
> responsibilities to the investors, a totally unacceptable
> interpretation.
>
> >From folio 1962 and following, Prosecutor Espinosa refers to a
> >mysterious document that he found 18 months after the
> initial sequester
> >and which bears no signature of the person responsible. From
> its text,
> >one gathers that there supposedly was a meeting of attorneys
> to review
> >a case of a possible criminal accusation by the investors. The
> >Prosecutor assumes that is proof of an alleged fraud,
> because according
> >to him, they were preparing to cease payment of the investors, which
> >would have adversely affected their patrimonial rights. That
> estimation
> >is totally unacceptable.
>
> If the Villalobos brothers had devised some type of fraud,
> they would not have left a written record of their
> intentions. If they had done that, they would have fled the
> country long ago, taking with them the money of the
> investors, especially when we realize that the alleged
> minutes are from a meeting that took place on May 12, 1999,
> over three months before the beginning of the criminal case,
> the sequester of the documents and the freezing of the
> accounts. The records reveal that at no time were the
> Villalobos brothers planning to leave the country, and much
> less were they preparing to stop paying the investors. They
> were simply referring to the appropriate document to give as
> a guarantee to the investors, and it was suggested that they
> use a bill of exchange instead of a check, because that would
> be more appropriate.
>
> To deduce that an unsigned document dated three years before
> the onset of the case and that in this way the alleged fraud
> was being planned, is entirely consistent with the arbitrary,
> slipshod manner in which the Prosecutor has conducted this
> whole process of investigation, infringing on the rights of
> thousands of investors, with absolutely no grounds.
>
> (end)
>
>
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> http://www.ticostuff.com/uccr/
>
> Al Reves del Derecho en Espanol:
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>
> UCCR
> membership form:
> http://www.ticostuff.com/uccr/memberform.htm
>
>
> Let there be no doubt...
>
> The UCCR - By investors, for investors!
> Unidos, venceremos!
> United, we will succeed!
> Unis, nous vaincrons!
>
>

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