Why the Government lost the US$100 Million case (Pt1)
Intro: The acquittal verdict returned by the trial jury in the US$100m cocaine case in favor of the defendants and confirmed by His Honor A. Blamo Dixon, Resident Circuit Judge of Criminal Assizes “C” at the Temple of Justice has sparked an acrimonious debate both locally and internationally, with the Minister of Justice and Attorney-General, and Dean of the Supreme Court Bar, Cllr. Frank Musa Dean Jr., describing the acquittal verdict as “worrisome and shameful”, claiming that “these kinds of verdicts only lend credence to the widely held international and local perception that the judiciary- namely the courts are inherently compromised, and the ruling has also brought Liberia to international ridicule.” But in his postmortem analysis of the trial, the former Solicitor-General and Chief Prosecutor of the Republic of Liberia, Cllr. Sayma Syrenius Cephus has out rightly dismissed Cllr. Dean’s attack on the Liberian judiciary as nothing but a grandstand only intended to save face after a rather poor and disgraceful performance at the trial that was more of a “wild goose” chase due to lack of evidence. He said Minister Dean is using the Liberian judiciary as a scapegoat for his blatant failure to arrest and investigate TRH and its owners who are the actual importers of the containers in which the US$100m worth of cocaine was found which ultimately led to the Government of Liberia losing the case in court. He said because the Justice Minister is conflicted, with short and long interests strewn across the political and economic landscape, President George Manneh Weah should expeditiously appoint a Special Independent Counsel to investigate the cold-blooded murder of Charloe Musu and the US$100m cocaine case.
Postmortem Analysis of the US$100m Cocaine Case: Why the Gov’t. Must Arrest and Prosecute the Actual Culprits Part 1
By Cllr. Sayma Syrenius Cephus,
The legendary William V.S. Tubman, former Associate Justice of the Honorable Supreme Court and 18th President of the Republic of Liberia. of sainted memory, speaking for the court in the case: “Fazzah v National Economic Committee et al, 8 LLR 85 (1943) said: “Ever and anon, there arises some litigation in the course of judicial proceedings like a mighty billow raising itself to a magnificent height as out of the sea, arousing public excitement, curiosity, anxiety, and interest. The civilians, as seashore visitors and dwellers, look on, some with fear, others with satisfaction, and yet others with amazement and trembling; but these legal billows seem, as it were, to dash themselves upon the shore as do the ocean billows and recede into the sea again, for each is a part of the same ocean and of the same great national superstructure…”.
George R. Fazzah, according to Justice Tubman, was accused of hoarding in one hundred and seventy-one bales of assorted cotton goods valued at twelve thousand pounds sterling. At that time, the whole nation was stunned by such discovery and wanted nothing but justice to be served but an over zealot National Economic Committee took a reversible action that ultimately let Fazzah off the hook and therefore, the Supreme Court of Liberia had no choice but to order issued the peremptory writ of prohibition, thereby and affirming and confirming the ruling of the justice in chambers.
And now eighty(80) years on, the US$100m cocaine case is reminiscent of the of the George R. Fazzah case, and taking a cue from the wisdom of Justice Tubman, it is “like a monstrous billow, that has lifted itself, rolling on towards shore, and the noise of its tremendous roaring has been heard throughout the length and breadth of the Republic and possibly elsewhere…” , but in the end, the excitement demonstrated to arrest and prosecute the actual culprits has disgracefully waned in the silage of an “ACQUITTAL VERDICT” triggered by an apparent blatant lack of vision or malfeasance and misfeasance or a dereliction of duty on the part of the Minister of Justice and Attorney-General. The painful loss of such a case of great magnitude and public interest is a sheer demonstration of the flagrant lack of character and commitment to rise to the occasion, and seize the opportunity of prosecuting and successfully convicting through the judicial process those who want to make Liberia a transit center for their drugs trade.
Like George R. Fazzah, the actual culprits are off the hook because those who should have made them to account, to face criminal prosecution have either over-sighted or perhaps ignored their activities. This, in my opinion clearly constitutes a serious prosecutorial booboos, and the leadership at the Ministry of Justice is solely responsible for the disgrace the Liberian Government has suffered. Here are the reasons why.
- The consignor of the purported goods that turned out to be the US$100m worth of cocaine is Allegra food company of Brazil;
- The consignee of the ‘goods’ is TRH, that does fresh frozen food business in Liberia; it a major supplier of pig feet and chicken feet on the Liberian market and its offices are Monrovia;
- TRH is a body corporate, legally registered and operating under the laws of Liberia, with business offices within the Republic of Liberia;
- TRH is owned by George Abi Jaoudi of Abi Jaoudi & Azar Trading Compnany, 50% and Bilal Tohmea 50%.
- . Bilal Tohmea, and his wife own 98% shares of TRH and Cllr Johnny Momo owns 2%.
- Malam Conte went to TRH to buy seven containers of frozen food. These were the same containers in which the US$100m cocaine was found. This means the US$100m worth of cocaine was already shipped by the Consignor (Allegra food company of Brazil) to the consignee (TRH) to Monrovia before Malam Conte went there to buy the seven containers.
- Makki Issam Abdullah claimed that he came to Liberia to do gold business and was told by one Gustavus to go to TRH to purchase Seven containers of frozen food. The prosecution arrested, investigated, and subsequently indicted Oliver Payday, Makki Issam Abdullah et. al., for illegal importation of drugs, illegal possession of drugs, money laundering, and criminal conspiracy.
II. Procedural Missteps
The Ministry of Justice committed a total of 120 procedural and elementary trial errors both at discovery and during the trial, and primary among these errors are issues that should formed the basis of the prosecution’s investigation and subsequent indictment. Much to the disbelief of many legal experts, the State (prosecution) woefully failed to:
- Cite and investigate for alleged complicity Allegra food company of Brazil as the consignor of the containers in which US$100m worth of cocaine was found;
- Utilize the Mutual Legal Assistance (MLA) aid to work with its Brazilian counterparts and investigate the business activities of Allegra food company of Brazil both in Brazil and other countries as it relates to its supply chain to establish whether or not it has been involved in similar activities or has been linked to similar cocaine crimes;
- Declare TRH as a crime scene and thereby ensure that it is fully investigated, charged and subsequently indicted as an alleged source or custodian of the US$100m worth of cocaine;
- Indict Bilal Abraham, and his wife who are owners of 98% shares of TRH where these containers were found;
- Take any action against Allegra food company and deliberately failed to issue an international arrest warrant through INTERPOL, using MLA to arrest Mr. Bilal Abraham, wherever found;
- Close down the business of Bilal Abraham but merely declared him persona non grata and then allowed his business to remain operational, while his wife roams about freely in and out of Liberia;
- Stop Bilal Abraham and TRH from making a complete mockery of the Liberian criminal justice system and because of this they again imported into the country another US$40m worth of cocaine while the defendants were in jail;
- Go after the seller and supplier of the cocaine and that both the consignor and consignee but decided to go after the buyer(s) should have served as witnesses for the prosecution.
- Establish whether any of the defendants ever traveled to Brazil;
- Prove whether the bill of laden for the transport of the US$100m cocaine was in the name of any of defendants;
- Countercheck the allegations made by Malam Conte that he came to Liberia to do gold business and was told by one Gustavus to go to TRH to purchase Seven containers of frozen food;
- Establish how and when Gustavus left the country; and
- investigate who was Gustavus and his link, if any, with TRH to prove or disprove what Malam Conte had said.
Based on the aforesaid facts and circumstances, there is only a single issue of law that is determinative of this matter, and that is: “Whether or not the prosecution has established a prima facie case to warrant a conviction of the defendants?”
To answer this issue, let us take a recourse to the facts of the case and the law controlling. First, there seems a superficial attempt on the part of the Ministry of Justice to obfuscate the prosecution of US$100m cocaine case with trivialities. Perhaps, this object of this ploy was meant to create a state of public disinterest as have been a number of cases in which there have been no arrests or no criminal prosecutions over the last five years.
Second, the emphasis in this case should not have been placed on the jury or the court as it is being done by the Honorable Minister of Justice, but on the quantum of the material evidence gathered and adduced at trial. In all fairness to the Government, and our international partners, let it be known that the entire trial was a complete charade! And of course, as always, the Honorable Minister was fully in charge of ‘everything’ pulling the strings from afar. The only difference this time around is that there is no Solicitor-General to his disliking that could have become the “scapegoat” for his ineptitude. That said, let it be stated that only those who know Frank Musa Dean very well and his pranks, knew that this purported trial was nothing but a subterfuge—there was absolutely no evidence to convict the defendants, yet, the Minister created a grandstand of a color trial that truly never was! The Supreme Court of Liberia has made it clear that only compelling and incontrovertible evidence can support a conviction or liability in a criminal or civil trial.
In the case: “The Management of the Forestry Development Authority (F.D.A)” v. Moses B. Walters and the Board of General appeals, Ministry of Labor, 34LLR 777, 783 (1988), the Supreme Court of Liberia said: “In this jurisdiction it is evidence alone which enables the court, tribunal or administrative forum to pronounce with certainty the matter in dispute and no matter how logical a complaint might be stated, it cannot be taken as proof without evidence. It is required that every party alleging the existence of a fact is bound to prove it by preponderance of the evidence…”. The truth is, the Minister of Justice knew or ought to have known that the containers in which the US$100m worth of cocaine was found were already in Monrovia and stockpiled at TRH warehouse. The Minister of Justice ignored this critical part of the discovery and only concentrated on the buyers. Any serious criminal investigation would focus specifically on the source of the cocaine and its chain of custody—how it came to Liberia; when, from where, and by whom? It has been incontestably established that there was a consignor and a consignee, called Bilal Tohmea and TRH. The consignee, TRH is wholly owned by Bilal Tohmea and George Abi Jaoudi – they should have been at the center of any serious criminal investigation. In fact, we are told that TRH enjoys ‘special privilege’ at the Freeport of Monrovia so much no inspectors can search its goods. Moreover, the containers with the US$100m worth of cocaine were stockpiled at TRH warehouse.
Strangely, the Minister of Justice and Attorney-General who should be someone cognizant of the danger that drugs pose to our society and who should have been firmed in dealing with such a grave matter, apparently became causal, as usual, and only decided to go after the persons who wanted to buy the seven containers full of cocaine from TRH, while the seller(TRH) and the supplier(Allegra Foods Company of Brazil) or the consignor and consignee were left out. Assuming arguendo, that the alleged buyers were part of the syndicate which rarely seems not the case, is it possible for such alleged buyers to have successfully plied their trade if there was no supplier or seller of the cocaine?
The most interesting element of deception and misfeasance on the part of the Minister of Justice is found in count 11 of the police investigative findings and it states: “that the investigation also established that the proprietor of Tania Rinia Houssein TRH, Bilah Abrahim was invited by the investigation team to make clarity as to his company’s involvement into importation of containers# MNBU 4070592 and SUDU6082664 which had on board cocaine and frozen food but failed to cooperate.” Now if the would-be defendants, TRH, Bilal Ibrahim and others are given a leeway to baffle and frustrate the police investigation, what else could the courts do? Convict people, who, from the records did not import the cocaine to Liberia?
Besides, while these defendants were in jail in February 2023, another US$40m worth of cocaine was again discovered at TRH warehouse. Nobody was question and no arrest was made because the defendants who had been framed were already behind bars. And to make a complete mockery of the entire exercise, it is reported that Bilal Ibrahim was declared a persona non grata, yet, his TRH business with offices in Topoe Village and Bong Mines Bridge is smoothly running, while his(Bilal’s) wife who is a shareholder in TRH is roaming in and out of Liberia. What else is the definition of collusion or connivance than this? What legal justification can the Minister of Justice and Attorney-General provide for not investigating and indicting Bilal Ibrahim, TRH and Allegra food company of Brazil? The best evidence that the case admits of, are the alleged roles at material time diverse that TRH, Bilal Ibrahim and Allegra Food Company of Brazil allegedly played in this case.
The Supreme Court of Liberia has held in the case:”Marpleh v. RL, 19 LRR335(1969) syl.1 that: “No evidence should be admitted by the trial court which supposes the existence of better evidence as proof”. Also see 1LCL Revised section 25.6- Best Evidence Rule. Even if the prosecution had succeeded in convincing the jury to return a GUILTY VERDICT against the defendants who are nothing but accessories after the fact, I am 100% certain that the Honorable Supreme Court of Liberia would have reversed the decision and ordered their acquittal a matter of law. Based on this, I am deeply constrained to resoundingly answer the issue of whether or not the prosecution has established a prima facie case to warrant a conviction of the defendants in the NEGATIVE. The reason is that a careful review of the case, shows that those who were indicted for illegal importation of drugs, illegal possession of drugs, money laundering, and criminal conspiracy, were in fact not the actual culprits. The Minister of Justice knew this for a fact. The defendants who were indicted should have been treated as accessories after the facts or facilitators and charged with criminal facilitation, provided the prosecution had any evidence to prove such allegations.
By failing to make TRH, Bilal Ibrahim and Allegra Food Company of Brazil, subjects of the US$100m cocaine investigation, the Minister of Justice unwittingly damaged and undermined entire process that should have unmasked the true culprits in the drugs trade. It was a complete ploy to indict the defendants who were at the receiving end of a cocaine trade. By so doing, it is obvious that the Ministry Justice intentionally shielded the drugs “kingpins” by making them “whistleblowers” for cocaine that was found their own warehouse. Again, and as always the Minister of Justice has deceived the Liberian government and its international partners with such cheap trial strategy of going after the innocent buys rather than the seller and supplier or producer. This, of course, has clearly undermined the level of collaboration, coordination and cooperation between the Government of Liberia and its international partners in the war on drugs.
The Ministry of Justice was somewhat blinkered and pathetically misconstrued an accessory after the fact with the theory of a principle defendant. An accessory after the fact according to the Supreme Court of Liberia “is one who after the consummation of a felony, knowing that a felony has been committed, receives, relieves comforts or assists the felon or in any manner aids him to escape arrest or punishment”. See”Marpleh v. RL, 19 LRR335(1969) .
Moreover, it is a settled principle, practice and procedure in this jurisdiction that the State(prosecution) cannot carry an accessory before or after the fact to court in the absence of the principal defendant. The Minister of Justice ought to have known or he knew or had reason to know that those that were indicted for illegal importation of drugs, illegal possession of drugs, money laundering, and criminal conspiracy were not after all, the main suspects; yet, he wasted precious time, energy, and state resources on a wild goose chase!
The law in this jurisdiction dictates that a mere allegation does not constitute proof; and the burden of proof rests a party who alleges a fact. See 1lCL Revised section 25.5. For the sake of the argument, let us agree that those who were arrested and indicted were the actual culprits, and if that is the case, and which of course is not the case, did the prosecution produce at trial any incontrovertible evidence to prove illegal importation of drugs, illegal possession of drugs and money laundering?
Is it not true that the containers in which these drugs were found were imported by TRH owned by George Abi Jaoudi, Bilal and his wife? Did the Minister of Justice who is now blaming the courts for setting “hardcore defendants free” ever investigate these people? Did the Ministry of Justice produce at trial any import documents, i.e. bill of laden, showing that the defendants actually imported these containers? The only import documents associated with the containers are owned by both Consignor and Consignee—TRH and Alegra Food Company of Brazil. Can the Minister of Justice tell the Liberian people why these people were investigated and indicted?
The Honorable Minister is playing a catch-up in his vain attempt to conceal his administrative inadequacies and viciousness for failing what should have been a “signature trial victory” for President Weah and the Government of Liberia in Court in the war on drugs and abuse. Now, he wants the public to join him and condemn the court; to believe that an indictment is synonymous to a conviction, and therefore, once a defendant is indicted, he/she is automatically guilty of the crime charged. The truth is, an indictment as we know it, is not a proof in itself or a judicial conviction of the crime charged; instead, is a set of allegations stating how the crime is committed, by what means, time and date, where, when, by whom, among others. And the fundamental basis for any criminal indictment is triggered by a “probable cause”, which, by all account, is a presumption that the accused in a criminal investigation is in fact responsible for the commission of the crime. Although an indictment is certain and definitive from the perspective of the State(prosecution), in terms of charging a crime, it is however not conclusive until the elements constituting the crime charged are duly established and proved beyond all reasonable doubts during trial. The Minister of Justice took for granted the gravity of the case and in his lackluster approach to every critical issue, he sat back sipping whisky on 17th Street, thinking that the court and the jury would do for him what he did not do for his own case.
Further, under our adversarial system of jurisprudence, the jury sits as trier of facts under the direct supervision of a judge who also sits and serves as an impartial referee. Neither the jury nor the judge is a party to an action brought before the court, and therefore, none can take a blame for the loss of a case. If the evidence is compelling, material and incontrovertible, it is easily defended but when it presupposes the existence of a better as it is in the US$100m cocaine case, the jury and court will throw it out.
The averments of the indictment were nothing but a product of a cacophony of half-truths, hasty generalizations and asinine insinuations. Apart from its prolixity, the indictment charging the crimes of illegal importation of drugs, illegal possession of drugs, money laundering, and criminal conspiracy, was somewhat asymmetrical and grossly incoherent in terms of logic and reasoning. The Honorable Minister of Justice was fully aware of this, and so he cleverly avoided the court –he never footed to the court, let alone holding a strategic trial meeting to access the veracity and materiality of the evidence.
At trial, the prosecution was like a raging wreck hacked off from a ship in stormy seas; it woefully failed to produce any evidence to establish the allegations of illegal importation of drugs, illegal possession of drugs, money laundering, among others. The defendants on the other hand openly denied ever being involved in illegal importation of drugs, illegal possession of drugs, money laundering. The failure to rebut an allegation in any criminal prosecution by a preponderance of evidence is very much critical. See Failure to rebut in 1LCL Revised section 9.8(3).
When the defendants entered a plea of NOT GUILTY to all of the charges contained in the indictment, the Minister of Justice and Attorney-General, believed to be highly learned in the law ought to have known that such a plea to the indictment had put in issue every fact the prosecution was duty bound to prove during the trial but which it had miserably failed to do. See Massaquoi v. Lowndes, 4LLR26(1935); Yancy v. Republic of Liberia, 4LLR268(1935).
The Supreme Court of Liberia has held that in all criminal cases the prosecution must as a matter of law establish beyond all reasonable doubts the elements of the crime such as (1) the occurrence of an injury or loss; (2) criminal agency; and (3) the responsibility of the defendant therefore; or (1) that the act itself was done; and (2) it was done by the person charged. In other words, the State(prosecution) must prove corpus delicti and identify the person charged with the act(emphasis supplied). See”Marpleh v. RL, 19 LRR335, 340 (1969).
Here again, our Minister of Justice and Attorney-General was found bunking (napping). And “like a monstrous billow, that has lifted itself, rolling on towards shore, and the noise of its tremendous roaring has been heard throughout the length and breadth of the Republic and possibly elsewhere…” , the US$100m cocaine case suddenly crashed out on the court’s dockets, with the actual culprits remaining at large, thus leaving the entire nation and its international partners scraping their heads in total disbelief. This is a serious tragedy!
It is an open secret that the Honorable Minister of Justice, Frank Musa Dean is fully aware, and the evidence is glaring that Bilal Ibrahim, TRH and Allegra food company of Brazil are the actual culprits, or to aptly put, the alleged suspects who must be arrested, investigated and possibly indicted, yet, he proceeded to indict people who should have been treated as accessories either before or after the fact. Again, and like the uncertainty surrounding the Charloe Musu’s murder case, the Honorable Minister of Justice wants us to believe that the US$100m worth of cocaine came to Liberia all by itself.
The problem that this nation faces in the drugs war is not the “ACQUITTAL VERDICT; not why those who should have been the actual culprits were never investigated and indicted; not why the excitement of fighting the drugs war has been deflated; no far from it. The real problem is our reliance on a “political demagogue” who is in love with himself; in love with the title “Minister of Justice-Attorney-General” so much that he is least concerned about the collective security of the state; careless about the sanctity of human life and value and is only interest in being called and revered as “Minister” while criminals are running riots throughout the country. How sad it is that we are being treated to a blatant malfeasance and misfeasance of the Minister of Justice who cannot win a court case but believes that the only way to keep his “job” and be called “honorable Minister” is to ensure that nobody is arrested, nobody is prosecuted, nobody is called to account, even if a crime is committed.
How sad is it that the cold bloody murder case of Charloe Musu and now the US$100m cocaine are in the dustbin? Lest we forget, the primary duty of every responsible government is to protect life and property. Frank Musa Dean wanted to have a freehand to operate as the Minister of Justice and Attorney-General, and so, on countless occasions both in the print and electronic, he complained that the Solicitor-General was eyeing his job. He did not rest until the Solicitor-General was placed on US Treasury Department sanctions list. So what is the story at the Ministry of Justice now? What has happened for the last nine (9) months has shown all too well that there’s a complete lack of vision, complete dereliction of duty, poor judgment, connivance and collusion— heinous crimes are being committed and are being investigated by the Liberia National Police but the all-knowing Justice Minister who sees himself as “bigger” than the Liberian State and is withholding all of the reports. The murderer of Charloe Musu would have been arrested, prosecuted, and perhaps convicted and sentenced by now if Liberia had not had an all-knowing Justice Minister heading our criminal justice system.
It is quite interesting to note that these horrific events are taking place at a time when President George Manneh Weah’s name is expected to be on the ballot for the October 2023 elections. Although one cannot say for sure what actually is the motive or what is the meaning of shielding criminals in these critical an times; the fact however is that there’s a conspicuous silence that is incrementally
suggesting a deliberate omission, to bolster the claims in some quarters that the government is doing nothing to fight crimes.
Be that as it may, and since it would appear that the ‘Honorable Minister’ of Justice has both short and long terms vested interests strewn out across the business landscape, and since he has demonstrated to be more of a “businessman” inundated with the problems of commerce and trade, rather than with the job of being a Minister of law and order, what not give him a matching order out of office? For the good of the nation, It would be prudent and expedient if the government of Liberia can appoint a “Special Independent Counsel” (SIC) to earnestly work with the Liberia National Police to investigate both the Charloe Musu bloody murder case and that of US$100m cocaine.
It’s doubtless sickening to see that people to whom much is entrusted, sometimes become myopic and tend to compromise national interest for a parochial agenda. What else is a complete compromise of national interest than the loss of a drug case in broad daylight under the watchful eyes of Frank Musa Dean? The loss of the case is a stab in the back, and in the opinion of any reasonable person, it unwittingly symbolizes an element of complicity of a cabal within the system that seemed quite determined to undermine what has become a clear testament of a strategic partnership between the Government of Liberia its international partners in the war on drugs.