By NEIL HARTNELL
Tribune Business Editor
An Island Luck co-founder is urging the New York federal courts to dismiss the US government's near decade-old human smuggling charges against him because his "rights" are being violated.
Adrian Fox, who teamed with Sebas Bastian to create The Bahamas' largest web shop by market share, is arguing that the charges should be thrown out because the US government's failure to launch extradition proceedings against him has breached his "right to a speedy trial".
The US, though, is resisting Mr Fox's dismissal bid on the basis that this was only launched when his efforts to negotiate a "deferred prosecution agreement" with the southern district of New York attorney's office stalled.
Legal papers obtained by Tribune Business allege that the federal authorities told Mr Fox he would personally have to come to the United States before negotiations on such an agreement could proceed further.
The documents also reveal that US legal representatives acting for the Island Luck co-founder have been talking to the authorities in a bid to settle the case since at least 2014. A deferred prosecution deal, which would essentially be a contract between Mr Fox and the US government, would typically result in the case being closed in return for the former complying with certain conditions.
Such conditions often involve making charitable contributions, community service and paying restitution if victims are involved. But, with legal negotiations seemingly going nowhere after five years, Mr Fox's move has sparked a flurry of activity in a case where the US has allegedly not launched extradition proceedings against him in The Bahamas ever since the indictment's 2010 release.
"Fox brings this motion to dismiss the indictment.... based on the Government’s violation of his constitutional right to a speedy trial," his attorneys argued in legal filings. "The nine-year post-indictment delay is 'extreme' as a matter of law, and mandates dismissal absent a compelling Government excuse. There is none.
"The indictment was unsealed on July 13, 2010, while Fox was living in the Bahamas. In the nine years since then, the government has made no effort to bring Fox to trial. The United States has an extradition treaty with the Bahamas and could have extradited Fox. Yet the Government appears to have made no effort over the past nine years to do so.
"Although that judgment may be sensible in light of Mr Fox’s exemplary conduct since the date of the alleged offense, it has prejudiced Fox’s rights irreparably by subjecting him to the anxiety of criminal charges and vitiating his ability to mount an effective defense... The sheer passage of time here requires dismissal. Nine years is just too long for the government to bring a defendant to trial."
Mr Fox was charged in a sealed April 4, 2010, indictment that was subsequently revealed three months later after his alleged co-conspirator, fellow Bahamian citizen, Mario Bowe, was arrested by US law enforcement.
Bowe, the son of the late Sir Lynden Pindling's confidant, Felix "Mailman" Bowe, ultimately pled guilty in September 2010 and was sentenced to 33 months in prison in early 2011. While he is understood to have been released from prison and returned to The Bahamas, Mr Fox has remained outside the US judicial system's reach ever since.
The pair were accused of masterminding a three-year human smuggling operation that involved bringing Chinese and other migrants into the US, arranging "transportation and safe houses" for them in The Bahamas while they waited to travel to New York Via Miami.
Blaming the US authorities' failure to extradite Mr Fox for the case's delay, his attorneys continued: "Fox has lived openly in The Bahamas, under his own name, since he was indicted.
"He is a prominent businessman and philanthropist who could easily have been found. The government cannot credibly claim that there were any obstacles to his extradition – at least none that excuse the government’s failure to even try."
However, the US government's November 12, 2019, legal filings dispute Mr Fox's assertions regarding the extradition process or lack of it, although they do not go into detail. Instead, they urged the southern New York district court to reject dismissal of the case on the basis that the Island Luck co-founder "continues to evade the charges against him and remains a fugitive".
"Since 2014, when one of Fox’s prior counsel filed his notice of appearance in this case, the government has engaged in numerous conversations with various counsel for Fox regarding the defendant’s willingness to travel to the United States and face the pending charges," the US attorney's office alleged.
"During those discussions, Fox’s counsel has indicated that Fox was aware of the charges against him as early as 2010. The government’s discussions with Fox’s prior attorneys have included Fox’s submission of a deferred prosecution application to this office, with additional material submitted to this office as recently as September 2019.
"Only when the government informed Fox’s then-counsel that it would not further consider Fox’s deferred prosecution application while he was a fugitive did Fox retain new counsel and file the instant motion."
The US attorney's office is arguing that Fox has "constructively fled" by failing to come to the US to face the charges against him, and alleged that the court would send a bad message to other fugitives by dismissing the case against him.
However, Mr Fox's attorneys, in a November 19 follow-up submission to the court, challenged their client's labelling as "a fugitive" on the basis that he had never "set foot" in New York or the US when committing the alleged offences.
"The government has done nothing to bring Fox to justice other than reject every one of his efforts to negotiate a voluntary self-surrender," they blasted. "The government had a constitutional duty to extradite Fox yet took no steps to do so for over nine years. It has offered no excuse for this apparently flagrant violation of Fox’s constitutional rights."
Mr Fox was previously Mr Bastian's 50/50 partner in Island Luck's rapid expansion prior to the industry's legalisation, regulation and taxation by the former Christie administration. But subsequent regulatory filings named Jeffrey Prescott Kerr as a 50 percent equal shareholder with Mr Bastian in an operation whose $100m in annual revenues give it around half the domestic gaming market.
Mr Kerr was also named as president of Quantas Investment Group, the entity said to be responsible for development of the Venetian West residential project at the back of Old Fort Bay. This was constructed by Brickell Management Group, the construction, property development and management arm of Mr Bastian's interests.
Mr Fox, meanwhile, is well-known for the activities of his Fox Foundation, which holds an annual Christmas block party and gift/food giveaway for residents in Nassau's Kemp Road area.