The
defense attorneys presented four separate
appeals to the Sala Tercera (Third Chamber)
of the Supreme Court on July 27, 2007. The
four dealt with different aspects of the
case. The lengthiest and the most
encompassing of these was a document of some
160 pages, which was compiled by lawyers who
are recognized for their expertise in
preparing appeals. They had not previously
been involved in the case, but a review of
the appeal shows that they had intimate
knowledge of its details.
The document is written in the first person,
as if by Oswaldo; and though he signs it, he
is certainly not the author. It is
skillfully done and weaves in chronological
order a tale of events which demonstrate the
gross abuse of power and disrespect for the
civil rights of the accused, dating back to
1999. The examples of abuse are well
illustrated by the applicable Costa Rican
law and lead one to the inevitable
conclusion that nearly all the evidence
gathered by the prosecutor was done so
illegally.
It is also obvious that the judges involved
in the investigative phase and the
intermediate phase, whose responsibility it
was to make sure that due process was
afforded the defendant at all times, seemed
to be ignorant of that obligation when
granting every request made by the
prosecution without examining thoroughly the
basis for the request and its legal
consequences. Indeed, their approval was
so automatic that the suspicion of collusion
is unavoidable. And the defense, on the
other hand, found its requests routinely
denied or deferred to the trial court to be
resolved later (something which never
happened).
The appeal indicates that the injustice
began as early as 1999. In August of that
year the superintendent of SUGEF reported to
the Ministerio Publico that the Banco de
Costa Rica had informed his office of
questionable activity in the account of one
of Oswaldo's companies. This was passed
directly to the antidrug division (precursor
of the Fiscalia Adjunta de Narcotrafico, now
headed by Walter Espinoza) whose chief at
that time gave verbal instructions to a
financial analysis group belonging to CICAD
(Centro de Inteligencia Conjunto Antidrogas)
to conduct an investigation.
CICAD did its job all right. In the process
they obtained from ICE a list and location
of the telephones (63 in all) belonging to
the Villalobos brothers and their companies;
they located eight bank accounts in the
States and received information about
transactions made there; they obtained data
from the tax department (tributacion directa),
the Banco Nacional and Banco de Costa Rica
and also the Costa Rican stock exchange.
What they forgot, or didn't bother to do,
was to obtain the judicial authority to
ignore the privacy and secrecy laws that
protect the citizens of Costa Rica from just
such abuse of power.
There is nothing to be found in the record
to indicate that any judge at any time
granted the officials of CICAD the right to
do what they did. Such invasions of privacy
are legal only when authorized by a judge
who has jurisdiction over the matter and has
expressed in writing his reasons for
granting the authority. The law states
emphatically that such omission renders any
evidence collected in such a fashion to be
invalid for legal purposes. In October of
2001 CICAD produced an updated report of 34
pages which cited 8 conclusions - none of
which mentioned the possibility of money
laundering.
The significance of this is that the
information collected by CICAD was used by
Walter Espinoza with the letter from the
Canadian government (Carta Rogatoria) in his
request to Judge Sanchez in order to
convince him that Casa Ofinter was involved
in money laundering and thus to justify his
request for the authority to conduct
searches - and more. In his request
Espinoza greatly misrepresented the nature
and objectives of the Canadian letter.
The Carta Rogatoria was officially received
by the office of the attorney general (at
that time Lic. Carlos Arias) at 10:35 AM on
July 3, 2002. Curiously, at 9:00 AM on that
same date Judge Sanchez accepted the formal
request of fiscal Espinosa personally. There
is no evidence in the record to indicate
that either the letter from Canada or the
report from CICAD was included in the
request, nor was any case number assigned.
A review of the case record, however, shows
that Espinoza had access to the letter from
Canada weeks before it was received by his
superior and had, indeed, included much of
it in his request. He also knew that the
original document had been tampered with by
the removal of those statements which
emphasized that no one in Canada had been
accused of anything, that it was a police
investigation (not judicial) and that they
only needed the collaboration of Costa Rican
authorities to access bank accounts and
other financial records related to the
suspects. The only reference to a possible
raid concerned the condominium owned by St
Onge in Garabito de Puntarenas.
It was the obligation of the judge to review
and evaluate the evidence submitted by the
fiscal, to decide if it is credible and
sufficient to justify granting the powers
being requested, and to make certain that it
was obtained legally. He must assure
himself that the evidence is balanced and
unbiased; and, finally, he is charged with
the responsibility to guarantee protection
of the civil rights of the accused. Somehow
Judge Sanchez managed to read and analyze
more than 70 pages of material, redact his
resolution and have it ready for Espinoza by
1:00 PM on the same date he had received the
request. Draw your own conclusions.
The resolution, entitled "Se Ordena
Allanamiento, Registro, Requisa, Secuestro Y
Otros" was prepared in a matter of three
hours - according the records. This gave
Espinoza the power to Search, Inspect,
Requisition, Confiscate, Seize, and Others.
The latter included the freezing of bank
accounts and the requisition of information
from brokerages. The resolution did not
question the legality of the manner in which
the information was obtained by CICAD.
The judge justified his decision by saying
that the evidence pointed to the strong
probability that the accused was engaged in
money laundering; and, therefore, he
approved the measures requested to obtain
proof of that allegation. Regardless of the
intentions of the judge, this was
interpreted and acted upon by Espinoza as
carte blanche permission to proceed with his
investigation. It is doubtful that Judge
Sanchez examined in depth the foundations of
Espinosa's request. Be that as it may, his
decision jump-started the process and led to
a sequence of abuses of the civil rights of
the accused.
End of Part 1.
Thank you.