Judicial Assistance

• Author: International Law Group

In November 1995, a Florida federal court entered a [revised] confiscation order against Kathleen Conway Montgomery (respondent) and her former husband, Larry Barnette. The order arose out of Barnette's failure to fully comply with an October 1984 order based on his convictions for fraud and related offenses, including offenses under the RICO Act. Barnette controlled two laundry companies which carried out contracts in Germany on behalf of the U. S. Government. The government alleged that Barnette had defrauded it of about $15 million in connection with those contracts and had shunted part of the proceeds to Old Dominion S.A.(ODSA), a Panamanian company he controlled.

Shortly before a grand jury indicted him for fraud, Barnette transferred 800 of the 900 shares he held in ODSA to respondent, Mrs. Montgomery. An October 1984 order required him to forfeit his interests in the shares and to pay the Government US $7 million or the market value of the shares, whichever was greater. Barnette paid the US $7,000,000, but failed to comply with an order to provide information about the market value of the shares.

In December 1992, the federal district court made an order for discovery against Mrs. Montgomery who had left Mr. Barnette in 1983 and was living in England. She failed to comply with it. The district court entered a confiscation order against Barnette's assets in November 1995. Mrs. Montgomery and Barnette had appealed this order to the U.S. Court of Appeals for the Eleventh Circuit.

That court, however, had dismissed the appeal without a hearing under the "fugitive disentitlement" doctrine.

In June 2002, the English High Court granted an application by the United States to register the order as an external confiscation order under Section 97 of the Criminal Justice Act of 1988 (CJA).

Respondent then filed this appeal, claiming that the confiscation order would implicate Articles 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and Article 1 of the First Protocol thereto. If the Convention applied to the United States, respondent urged, then the English courts would be violating Section 6 of the English Human Rights Act of 1998 by registering the order. The Court of Appeal (Civil Division), however, is not persuaded and dismisses respondent's appeal. In the Court's view, a central issue on appeal is whether the High Court judge, as a matter of law, was entitled to register the confiscation order under CJA Section...