An attempt by US prosecutors to introduce extracts of private email correspondence between attorney-at-law Tariq Khan and former Insurance Corporation of Barbados Ltd. (ICBL) chief executive officer Ingrid Innes into evidence against former Minister of Commerce and Industry Donville Inniss, has fallen flat on its face.
In fact, contrary to reports carried in another section of the media, in a 71-page ruling on Friday by United States District Judge Kiyo Matsumoto, it was determined that the details carried in the email between Khan and Innes were protected by client-lawyer privilege and could not be introduced into the case against Inniss. Indeed, Matsumoto made it abundantly clear that the information in the possession of the prosecution should be destroyed.
On Page 70 of the ruling, a copy of which was obtained by Barbados TODAY, Matsumoto stated: “The court denies the government’s seventh motion in limine and finds that the document is protected by the attorney-client privilege and that Ms. Innes has not waived the attorney-client privilege with respect to the document. Thus, the government should take reasonable steps to promptly remove and/or destroy the document and any copies thereof currently in its possession and is not permitted to use the document in its prosecution of this case.”
Tariq Khan
Today, an attorney-at-law with intimate knowledge of the case but who spoke on condition of anonymity, told Barbados TODAY that the ruling had either been grossly misinterpreted, misunderstood or simply not read properly at all in the other section of the media. He indicated that while the prosecution had been successful in other aspects of its in limine (pre-trial request) motions, the judge had been clear in her ruling with respect to the various case law governing lawyer-client privilege.
Innes, along with former ICBL senior vice-president Alex Tasker, has been indicted in the United States with co-defendant Inniss on charges related to bribery and money laundering allegedly started in Barbados and completed in the US jurisdiction.
However, Tasker and Innes have not been on US soil since the matter broke and have never been formally arrested, though their warrants remain enforceable. Inniss was arrested in August 2018 while in the US jurisdiction.
Ingrid Innes
In June this year, US authorities filed five pretrial motions in the case against Inniss. These requested the court to (1) admit evidence concerning Inniss’ request to ICBL for a purported donation to the Corporation; (2) preclude Inniss from introducing evidence or argument concerning Barbadian criminal law enforcement, including that Barbadian law enforcement has not, to date, charged him with any crimes; (3) preclude Inniss from introducing evidence or argument that bribes are a custom or practice in Barbados; (4) preclude evidence or argument concerning Inniss’ prior commission of “good acts” or non-commission of other bad acts; and (5) preclude evidence or argument concerning the defendant’s family background, health condition, age, conditions of pretrial release, or any other personal factor unconnected to guilt. Inniss’ defence responded to these motions.
In August, the US government filed two additional pre-trial motions. These were namely: (6) requesting that the court admit evidence of Inniss’ “financial motive to commit the charged offences,” and (7) a request that the court find that the Innes document was not protected by the attorney-client privilege, and to permit the government to use it in its prosecution of the case against Inniss. Again, Inniss’ defence counsel responded to the state’s motions.
On September 3, the prosecution filed its eighth pre-trial motion, requesting the court admit evidence concerning two additional BDS$7,000 donations that ICBL made to Inniss as direct evidence of the crimes charged or admissible evidence. The defence also responded to this motion.
At the conclusion of its deliberations, the court ruled in favour of the government with respect to motions 1, 2, 3 and 4. However, the defence had originally conceded motion 1, had shown no indication of raising motion 2 and thus took no position on it. With respect to motion 3, defence counsel indicated it was not aware that bribery was a common practice or custom in Barbados and therefore the defence did not intend to make such an argument.
The court denied parts of motion 5, with respect to the government’s request that the court preclude evidence of any personal or background information concerning Inniss. However, it allowed part of the same motion related to government’s request to preclude evidence or argument concerning the potential punishment or consequences Inniss faced if convicted. The court granted motion 6 with respect to Inniss’ alleged indebtedness. The court also allowed the prosecution’s eighth motion.
However, in a lengthy submission on the issue of client-lawyer privilege where numerous precedents were cited, the court ruled that information contained in an email entitled “Chronological Order of Events” sent by Innes to Khan after being suspended from ICBL in relation to Inniss’ matter, was protected by client-attorney privilege. That email had been written on a laptop owned by ICBL and had been accessed without Innes’ prior knowledge and permission and provided to the prosecution by sources in Barbados.
Inniss has been charged in the US for contravening a Barbados 1929 Prevention of Corruption Act and is the first Barbadian to be charged and prosecuted under this Act in any global jurisdiction.
“This is a unique case. The US – not Barbados – is trying Inniss under a 1929 Barbados Law. Whether ICBL gave Inniss money or not, it will be quite a stretch for the US prosecution to prove it was a bribe. Mr Inniss is not a broker and he was not responsible for sourcing insurance coverage for BIDC properties. And if they can’t prove any assertions of bribery in Barbados, how can they prove that the transfer of money from one jurisdiction to another is money laundering. There is nothing intrinsically illegal in moving money from one jurisdiction to another. People do it every day,” the attorney-at-law told Barbados TODAY.
He, however, expressed disappointment that the motions by the prosecution and allowed by the court meant that the jury would never hear during the trial that neither Inniss nor any other person had ever been charged under the 1929 legislation, and that Inniss had no history of criminal conduct in government.
wadegibbons@barbadostoday.bb
