From 1987 to 2001, Messrs Arnold Maurice Bengis, Jeffrey Noll, and David Bengis, through their company, Hout Bay Fishing Industries Ltd., harvested large quantities of rock lobsters from South African waters, in amounts that exceeded authorized quotas, for export to the United States. They underreported the fish harvested to South African authorities and bribed South African fisheries inspectors to help them carry out and conceal their illegal overharvesting scheme. As part of the operation, the individuals arranged for disadvantaged South African citizens, who did not have valid U.S. working permits, to work for low wages at their fish processing facility in Portland, Maine, where the employees were required to process, among other things, illegally harvested South African rock lobster.
In May 2001, South Africa authorities seized a container of unlawfully harvested lobsters. As part of the criminal prosecution in South Africa, Hout Bay were made to pay South Africa USD 7 million for its illegal conduct.
In 2003, the Defendants were charged in the United States with importing, among other things, illegally-harvested South African South Coast and West Coast rock lobster into the U.S. In July 2004, Arnold Maurice Bengis was sentenced to 46 months imprisonment, Jeffrey Noll was sentenced to 30 months imprisonment and David Bengis was sentenced to 1 year imprisonment. As part of their sentences, Arnold Bengis and Mr Noll forfeited USD 5.9 million to the United States Government.
After applications by the South African Government and numerous proceedings, the District Court for the Southern District of New York, on 14 June 2013, ordered that the Defendants pay a combined total restitution in the amount USD 22 million to South Africa. Mr David Bengis, however, did not pay in accordance with the restitution order. As a result, the District Court, on 6 March, 2017, held that Mr David Bengis was in default in paying the restitution order and ordered that he be resentenced. The Court increased the sentence of imprisonment on Mr Bengis to one of 57 months and made an additional forfeiture order of USD 37 million.
A letter of request from the US authorities dated 21 July, 2017, was sent to the Attorney General of Jersey seeking a saisie judiciaire, in respect of the realisable property of Mr Bengis, to assist in enforcing this Forfeiture Order. It was pursuant to that letter of request that the Attorney General applied for and was granted the saisie on 28 July 2017.
The latest proceeding in Jersey, on 23 March 2018, was an application to lift the saisie judiciaire issued in respect of the realisable property of Mr Bengis. The Court dismissed the application of “First Trust Management Limited” to lift the saisie.
Sudáfrica
Estados Unidos de AméricaAssets of the defendant’s companies.
Proceeds of Crime (Enforcement of Confiscation Orders) (Jersey) Regulations 2008; Proceeds of Crime (Jersey) Law 1999
Royal Court of Jersey
A letter of request from the US authorities dated 21 July, 2017, was sent to the Attorney General of Jersey seeking a saisie judiciaire, in respect of the realisable property of Mr Bengis, to assist in enforcing a Forfeiture Order against him. It was pursuant to that letter of request that the Attorney General applied for and was granted the saisie on 28 July 2017. This proceeding was an application to lift the saisie judiciaire.
The Court dismissed the application of First Trust to lift the saisie.
Royal Court of Jersey
First Trust Management Limited v AG [2018] JRC 064
The US proceedings can be found in the SHERLOC entry USx014: US v Bengis and others
The Court in this case referred to the United Nations Convention against Transnational Organized Crime (UNTOC) when discussing the nature of the criminal organisation the applicant had been involved in.
The applicant submitted that it was absurd to argue that a legitimate fishing business which happened to commit a crime as part of its business was a criminal organisation. In support of this, they said that The Crime (Transnational Organised Crime) (Jersey) Law 2008 was intended to give effect to UNTOC, which was ‘mainly concerned with human trafficking’ and ‘there were no proceeds of mere membership of a criminal organisation’.
In response, the Court said that, at first sight, it understood the argument that an enterprise which has a legitimate business but also engages in overfishing does not fit the typical idea of a criminal organisation. However, they said that the Convention is not concerned only with matters such as people trafficking, and that Article 5 deals with the topic of criminalising participation in an organised criminal group, which is defined as meaning a structured group of three or more persons existing for a period of time and acting in concert with the aim of committing one or more serious crimes. The definition is broad and could encompass the criminal activity of the applicant’s company.
'Serious crime' is defined in UNTOC as being an offence punishable by at least four years' imprisonment. The Court said, regardless of this, the States had chosen in the 2008 Law to adopt a much lower threshold when defining a serious offence, which is the law that must be applied.