BUSINESSMAN Steve Ferguson has refused to provide his financial information in the multi-million dollar RICO case in Miami as TT seeks to recover US$131 million arising out of the Piarco International Airport expansion project decades ago.
Ferguson has maintained his Fifth Amendment right against self-incrimination to all but two of the questions on a fact information sheet (Florida Rule of Civil Procedure Form 1.977).
On May 15, Miami Circuit Court judge Reemeberto Diaz entered final judgment for TT in the racketeering case against Ferguson, former UNC minister Brian Kuei Tung and US businessman Raul Guitierrez Jr for US$131,318,840.47.
The final judgment followed a jury’s verdict in March which led to TT getting triple the damages it sought under US Racketeering Influenced and Corrupt Organisations (RICO) law.
The Miami jury found Ferguson liable for multiple claims arising from the fraud linked to the redevelopment of the Piarco International Airport in the late 1990s and early 2000s,
Kuei Tung, a former minister of finance under the Basdeo Panday administration, and Gutierrez, the former principal of Calmaquip Engineering Corporation – which provided specialised equipment at the airport – were previously held liable in the racketeering case.
A Florida fact information sheet (Form 1.977 ) is a sworn financial affidavit a judgment debtor must fill out and send to the creditor after final judgment is entered and covers assets of both the debtor and their spouse. This forms part of the discovery process as the creditor pursues recovery of the court’s award.
In his fact information sheet, Ferguson gave his name, a Diego Martin address, and a telephone number.
On all other questions relating to his employment, pay, marital status, date of birth and those of his spouse, Ferguson invoked his right to “respectfully decline to provide responses” to the information sought on the fact sheet. He cited the US and TT Constitutions.
On September 11, TT filed an amended motion to compel Ferguson to respond to Form 1.977 after the businessman insisted in his response on August 29, that he was asserting his Fifth Amendment rights “regarding all questions on Form 1.977.”
Kuei Tung’s Form 1.977 was filed on August 30. In it, he gave a Fort Lauderdale address, a social security number, and his date of birth. He did not provide his employment or pay details and has “separated as his marital status. He also provided his “spouse’s” address in Moka, Maraval and a date of birth but no pay information.
The Fort Lauderdale address was supplied as real estate he owned. The form says he does not owe anyone and had no last pay stub, financial statements or lists of assets and liabilities for the last three years.
Guiterrez provided a Coral Gables address, his job, monthly salary, personal income, banking information, his wife’s name, and a blue Mercedes-Benz.
Ferguson maintained his responses to the fact sheet were “lawful and appropriate.”
“As the court knows and as (TT) repeatedly asserted at trial, Mr Ferguson is under indictment in the United States District Court for the Southern District of Florida…
“The wide-ranging charges against Mr Ferguson include conspiracy to commit wire fraud and money laundering, wire fraud and money laundering.”
There are multiple counts against him, according to the indictment.
Ferguson’s reply continued, “Moreover, (TT) repeatedly argued during the trial of this matter that the evidence of these alleged crimes includes virtually every aspect of Mr Ferguson’s personal and financial information.
“In accord with (TT's) position, the court admitted into evidence vast amounts of Mr Ferguson’s personal and financial information.
“There can be little doubt that the United States would (or at least could) seek to use the same categories and types of information in any criminal prosecution against Mr Ferguson.”
It said, “Given the existing criminal charges,” Ferguson was “undoubtedly entitled to broad protection against self-incrimination.”
The reply quotes the US appellate court’s position on Fifth Amendment privilege which, it said, applied to protection in civil discovery where a litigant has “reasonable grounds to believe that direct answers to interrogatory questions would furnish a link in the chain of evidence needed to prove a crime against him.”
Ferguson’s reply said, “Under the circumstances, Mr Ferguson does not need to show a criminal prosecution is probable or even that his answer will be used at a later prosecution. He must only demonstrate ‘a realistic probability that his answers will be used against him.’"
“From the court’s perspective, the question is whether it is ‘evident from the implications of the question, in the setting in which it is asked, that a responsive answer…might be dangerous because injurious disclosure could result.’"
“Mr Ferguson has provided his name, address, and telephone number to (TT). For the remaining information, Mr Ferguson has asserted his privilege against self-incrimination and declined to answer.
“Mr Ferguson is entitled to make these assertions because the remaining questions request: information about his income and assets (which could be used to develop evidence against him in the criminal case or as direct evidence against him); and information about his family (which could be used to identify witnesses and develop information against him in the criminal case or as direct evidence against him).”
However, (TT) says after it agreed to an extension for him to complete the form, he “summarily” asserted, in a single-sentence response, rights and “refused to answer any of the questions.”
The State maintained his responses were not sufficient and provided reasons for its position.
It said the Florida rules of civil procedure allow judgment creditors to obtain discovery in aid of their judgment, failing which, a court can enter an order of contempt.
“But Ferguson may not use the Fifth Amendment as a talisman to ward off all post-judgment discovery and violate the Republic’s right to collect on the judgment.”
The State said his refusal to provide basic information remained a “transparent effort to frustrate (TT's) collection efforts.”
“Indeed, Ferguson’s invocation is nonsensical given the questions in Form 1.977."
It continued, “Form 1.977’s routine questions cannot possibly pose a reasonable danger of self-incrimination. Indeed, the questions are the same for every judgment debtor in Florida.
“Yet Ferguson continues to assert privilege over these basic questions, including those that seek the names of his family members. But even the questions that seek financial discovery only inquire into the state of Ferguson’s financial affairs as they exist today.”
The State insists that Form 1.977 does not seek information about Ferguson’s finances as they existed at the time of the Piarco airport “enterprise,” or how he obtained his assets or why he maintained them in the way he does.
“Ferguson has provided no explanation to date (and (TT) doubts that he can), and Ferguson’s bald assertion of privilege will not suffice.
“Evidence at trial demonstrated that Ferguson is a successful businessperson in (TT). It certainly cannot be the case that all his current assets may inculpate him in some way.
“Ferguson must either answer the questions or provide ‘sufficient information on which a trial court may find that a reasonable danger of incrimination exists.’He cannot refuse to do both.”
In its motion, TT’s lead attorney Raoul Cantero asked the court to compel Ferguson to complete every part of Form 1.977 or be held in contempt. It is also the State’s contention that it is for the judge to decide if Ferguson has a right to assert his Fifth Amendment privileges.
A hearing of the motion was held on September 5 before Diaz where one of Ferguson’s attorneys, Stephen Bihnak, repeated his client’s assertions.
“In this case, we have the indictment in the Southern District of Florida. There are 84-counts against Mr Ferguson for money laundering…So from our perspective, it is not just perfectly clear that he's not mistaken, but it's perfectly clear that this information that is requested of Mr Ferguson could be used to develop and directly make evidence,” Bihnak told the judge, according to a transcript of the hearing.
At the end of the hearing, it was agreed for the State to file a supplemental motion.
On Friday, the matter was fixed for hearing on November 29 to determine which questions on the form were proper for a pleading of the Fifth.
The judge said it was open to Ferguson to give evidence via the Zoom platform.
However, his attorney said even if he did not, they would be defending the State’s motion.