Attorneys file motion after Miami court verdict –Ferguson demands new trial

BUSINESSMAN Steve Ferguson wants a new trial of the State’s civil case related to the Piarco International Airport corruption case in Miami.

On April 13, Ferguson's attorneys filed a motion for a new trial and for judgment "notwithstanding the verdict" delivered on March 29.

The motion will be heard on April 28, a week after Florida judge, Reemberto Diaz, is expected to enter the final judgment in the case.

Before the court were Ferguson, former minister Brian Kuei Tung and US businessman Raul Gutierrez Jr.

The State began litigation in 2004 in the US, hoping to recoup US$37 million from those accused of corruption, among them Ferguson and Kuei Tung.

The alleged racketeering charges were filed under the US’s Racketeering and Influence Corruption Organisation Act (RICO).

Ferguson, Kuei Tung and Gutierrez were the only defendants left in the Government's civil case from the original matter by former attorney general John Jeremie, SC. The case originally involved 23 defendants.

Default judgment was already entered against Kuei Tung.

Ferguson's motion says he is entitled to judgment on all claims because Trinidad lacked standing to bring a claim for injury alleged to have suffered by the Airports Authority.

"Standing requires that 'the claim be brought by or on behalf of one who is recognised in law as a real party in interest,'” Ferguson's motion argued.

It added that "the basic purpose of this rule is to “protect a defendant from facing a subsequent similar action brought by one not a party to the present proceeding and to ensure that any action taken to judgment will have its proper effect as res judicata."

The motion says the undisputed trial evidence established that the Airports Authority entered into the contract for CP-13 and the maintenance contract while NIPDEC entered into a contract for CP-9. It said the Airports Authority made payment on CP-9, CP-13, and the maintenance contract; and paid for the construction of the Piarco Airport with money borrowed from bonds.

"Further, all the contracts stipulated that the contracts shall be governed in accordance with the laws of Trinidad and Tobago and that any claim or controversy arising out of the contracts shall be settled by arbitration "

It went on to say that the Supreme Court of Trinidad and Tobago in November 2011 ruled that this country was the appropriate forum to try matters in relation to the Piarco Airport project and in particular construction packages 9 and 13.

"The Attorney General of Trinidad and Tobago was a party to those proceedings…and is bound by the ruling. Also, the Attorney General never sought to appeal that ruling of the High Court."

Ferguson's motion also referred to a claim brought by the Airports Authority against Calmaquip to support the ownership of the airport contention, adding that it was the exact same claims the State pursued in the recently-ended case in Miami.

"The Airports Authority properly advanced those claims because, as the Third District Court of Appeals recently held, 'the Airports Authority of Trinidad and Tobago is not a mere instrumentality of the Republic of Trinidad and Tobago, but a sui generis statutory entity..."

"For its part, Trinidad understood the claims advanced here were owned by the Airports Authority. Trinidad’s own filings confirm this is so," Ferguson's lawyers argued.

The motion further contends Ferguson is entitled to judgment on all RICO claims and said even if Trinidad had standing, there was no evidence of a domestic injury.

"The Airports Authority, not Trinidad, suffered any asserted injury, so Trinidad lacks standing and Mr Ferguson is entitled to judgment as a matter of law on all claims.

"In the alternative, if the Court concludes that Trinidad did suffer an injury sufficient to confer standing, any such injury was suffered abroad, and so Mr Ferguson is entitled to judgment on all RICO claims.

"The RICO claims against Mr Ferguson fail because there is no evidence of a domestic injury. Trinidad’s corporate representative and its own former Attorney General testified that Trinidad lost its money when it funded the airport construction from Trinidad’s consolidated fund. RICO only compensates injuries suffered in the United States."

It also said the RICO claims also fail because Trinidad never proved a pattern of racketeering activity.

"RICO requires a 'pattern of racketeering activity.' This means that the evidence must show that the defendants committed two or more predicate acts within a ten-year time span; the predicate acts were related to one another; and the predicate acts demonstrated criminal conduct of a continuing nature.”

It said Trinidad alleged only closed-ended continuity which required "the plaintiff to show predicate acts that extend over a substantial period of time and were directed toward multiple victims."

The 23-page motion also maintained that the jury's verdict was fatally flawed "because the court inappropriately admitted documents from a separate criminal proceeding. This evidence made it impossible for Mr Ferguson to have a fair trial. The court improperly admitted several documents from a separate criminal proceeding."

Ferguson contends it was an error to instruct the jury that material elements of the case against him had already been established and accused the court of improperly instructed the jury that the “Piarco Airport Enterprise” and the “Piarco Airport Conspiracy” had already been established because of the default ruling against Kuei Tung and the summary judgment ruling against Gutierrez.

His motion says the instructions to the jury were improper because Ferguson had an independent right to defend Trinidad’s claims on the merits of the case.

In its own motion for a final judgment, the State has asked the Miami judge to order restitution for TT in the sum of US$97,157,964 which constitutes treble in damages of the jury verdict amount of US$32,38,988, according to RICO provisions.

The Government is also asking for pre-judgment interest. The hearing of the motion for final judgment comes up on Thursday.