The crime of money laundering is probably better labelled (at least in Australia and Canada) as "dealing in the proceeds of crime". In most jurisdictions the crime of money laundering has two parts:

1. A specified unlawful activity (SUA); and
2. A transaction or act of dealing in money (or sometimes other property) that is the proceeds of that unlawful activity ("the primary act").

In the State of Victoria, the crime is very broad. For example in a case like the one referred to above, the defendant could be charged with an offence under section 195(2) of the Crimes Act 1958(Vic), which provides that it is an offence to deal with the proceeds of crime knowing that it is proceeds of crime. This crime is punishable by up to 15 years jail.

"Deal with"  is defined to include receive, possess, conceal or dispose of;

"proceeds of crime" is defined to mean property that is derived or realised, directly or indirectly, by any person from the commission of specified unlawful activity (or unlawful activity that occurred outside Victoria that would be specified unlawful activity if it had occurred in Victoria).

The specified unlawful activity can be any indictable offence or one of a number of listed summary offences. The list of specified summary offences include a large number of offences under Fisheries, Wildlife, Forestry and other environmental statutes. This means that the underlying offence (SUA) can be a minor summary offence.

Practical Application

Lets say a person (Person A) unlawfully captures a red tailed black cockatoo from the wild and transports it to Melbourne.  Person A then sells the cockatoo to another person (Person B), who pays for the bird by depositing money into Person A's bank account.

Under the Victorian law, person A will have engaged in "money laundering" on two occasions (at least):

1. The disposal of the cockatoo to Person B amounts to dealing in proceeds of crime; and
2. The receipt of the money into his or her bank account.

Other Jurisdictions

US - Federal

Many other jurisdictions have a much narrower money laundering offence that requires a further act of concealment or intention to promote the specified unlawful activity.  For example under the US federal statutes, Title 18 USC 1956(a)(1) provides that the person must:

• Knowingly conduct or attempt to conduct a financial transaction; and
• Know that the proceeds are from an illegal activity; and
• Intend to:
  • conceal or disguise; or
  • promote the carrying on of the illegal activity; or
  • avoid a transaction reporting requirement.

While some pollution offenses are listed as SUA's for the purpose of money laundering, there do not appear to be any fisheries or wildlife offenses listed.

Canada

On the 5th February two English fish dealers lost an appeal against a proceeds of crime order.  The order was made following their prosecution for offences relating to a failure to keep records of the origin of fish received by them.

 On 11^th May 2007, at Newcastle Crown Court they pleaded guilty to 5 counts of failing to submit sales notes and landing declarations relating to purchases of fish that they made. They pleaded guilty and were sentenced to fines of £400 on each count.

What was unusual about this case, is that the judge also imposed confiscation orders in the sum of £188,195 ($292,228 USD) against Ian Perkes and in the sum of £150,000 ($232,934 USD) against Sean Perkes.  It was these orders that were the subject of the appeal.

Asset confiscation laws

By way of background, a number of jurisdictions have laws providing for the confiscation of instruments and proceeds of crime.  These provisions have traditionally be used in the fight against drug trafficking, terrorism and financial crime.  They can involve forfeiture of instruments of crime, such as a vehicle used to transport contraband, and/or an order that the offender pay to the State any benefits obtained as a result of the offence.  Confiscation laws can be: conviction based - where the court makes an order following conviction for a relevant offence, or alternatively a civil process - where an order can be made independently of any prosecution for the offence.

The UK Criminal Lifestyle Laws

The confiscation provisions utilised in the Perkes case are conviction based - but extend beyond the crime(s) for which the defendant has been convicted.

Under section 6 of the Proceeds of Crime Act 2002 (UK) the prosecutor may request that the Court proceed to confiscation.

When does a person have a "Criminal Lifestyle"?

The court must then decide whether the defendant has a ‘criminal lifestyle’ (as defined by s 75 and schedule 2 of the Act).

The defendant will be deemed to have a ‘criminal lifestyle’ if, one of the following conditions is satisfied:
• He has been convicted of at least one offence listed in schedule 2 to the Act;
• He has been convicted of conduct forming part of a ‘course of criminal activity’ from which, in total, he has obtained benefit of at least £5,000; or
• He has been convicted of an offence of any description committed over a period of at least six months from which he has obtained benefit of at least £5,000.

Consequences of a "Criminal Lifestyle"

Where the defendant falls within the criminal lifestyle definition, then the court is required to make the following assumptions:

1. any property transferred to the defendant at any time after the ‘relevant day’ was obtained by him as a result of his general criminal conduct and was obtained by him at the earliest time he appears to have held it;
2. any property held by the defendant at any time after the date of his conviction was obtained by him as a result of his general criminal conduct.
3. any expenditure incurred by the defendant at any time after the ‘relevant day’ was met from property obtained by him as a result of his general criminal conduct; and
4. for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.

The burden of proof then shifts to the defendant to show that, on the balance of probabilities (preponderance of evidence), the assumption is incorrect or there would be a serious risk of injustice if the assumption were made.

The Investigation

In this case investigators conducted a detailed financial analysis of invoices recording cash purchases of fish. These did not contain the name of the purchaser in any identifiable form.  The Appellate Court held that the only realistic way the presumption could be rebutted would be for the defendants to identify the sellers of the fish and either call them to support their case When interviewed in relation to the identities of the people who sold them the fish Sean Perkes was evasive and Ian Perkes walked out of the interview.

While the appeal did not deal with any significant legal issues (it is difficult to appeal a consent order), it serves to highlight the use confiscation proceedings in the fight against environmental crime.

Following on from my post on seizing internet evidence the US National Institute of Justice has released an updated version of its publication Electronic Crime Scene Investigation: A Guide for First Responders (2nd ed.).

The publication is designed to assist law enforcement officers in preserving an electronic crime scene and for recognizing, collecting, and safeguarding digital evidence.

The guide outlines types of digital evidence, digital investigative tools, as well as crime scene procedures and evidence analysis.

Another publication worth reading is the UK Association of Chief Police Officers  Good Practice Guide for Computer-Based Evidence.

Environmental crime is increasingly seen as a distinct category of crime and one that poses special challenges to law enforcement officials. While there are many issues that face environmental policing, there are a number of key societal and environmental factors that will shape our strategic future. 

In this series I will discuss how some of these changes may influence the future of environmental policing over the next 20 years. 

The future will see both challenges and opportunities in an era where there is a tension between shrinking budgets and an increasing demand for law enforcement services and effectiveness.

Feel free to post comments or your own observations on future directions.

There are a number situations in which conservation officers may need to gather evidence from the internet. For example, in episodes 2 and 3 of the Conservation Law Enforcement Today Podcast we covered a news story about two Canadians posting a video on YouTube with footage of themselves shooting ducklings illegally and breaking several wildlife and firearms laws.  If you now try and follow the link from the show notes in episode 2 of the podcast, you will find that the video is no longer on YouTube.  This reinforces the need to act swiftly to preserve electronic evidence.

There are a number of options for capturing data from the internet, ranging from specialised investigation software software to screen capture utilities. A great resource for conducting internet investigations is SEARCH which has a number of guides available for download. 

Useful Software

Webcase by Vere Software

WebCase is designed specifically for conducting live online investigations. It is a full featured online investigation management tool that provides case management tools for conducting online undercover investigations.  If you have a budget (lucky you) and are doing a lot of internet investigations (particularly undercover investigations involving the trading in fish and wildlife over the internet) then this may be worth looking at.  It currently costs $595 USD for Law Enforcement

Camtasia Studio by TechSmith

Camtasia Studio is an application designed for producing training videos.  SEARCH has a guide titled How to Capture a MySpace Page for Investigative Purposes that demonstrates using the Camtasia screen recorder and other software to capture web pages including video with a view to presenting it in court.  Camtasia is not free but as of writing it is available to Government agencies for $249 USD.

Cam Studio

CamStudio is a free screen recording program that has some functionality of the screen recorder in Camtasia studio.  If you are following the procedure in the SEARCH guide you can use CamStudio

Video Download Helper

Video DownloadHelper is a Firefox extension that allows you to download video from YouTube and other web video sites.  It is referred to in the SEARCH guide.

Enjoy.

For those that attended (and anyone else interested) here is a link to a set of "Delicious" bookmarks for a number of articles and documents on restitution for unlawfully taken fish and wildlife.

Here is a link to a .pdf of my presentation.  For speaker notes, click on the call-out box in the top left hand corner of the slide.

Due to popular demand, here is a direct link to the Ohio regulations setting out their wildlife valuation formula.

Feel free to contact me if you have any questions on the subject.

One of the tools often used by regulators is the imposition of catch or bag limits for a particular species.  This can have a number of aims, but the main purposes for these limits are to prevent over harvesting and to prevent a person from obtaining a saleable quantity of the fish or wildlife.  These limits can take a number of forms, including:

• Daily take/catch limits;
• Annual / seasonal limits;
• Possession limits; and
• Vehicle/boat limits.

For example, in California, Abalone is regulated by an seasonal catch limit with strict tagging and record keeping requirements. 

Traditionally (at least here in Australia) the main tool used has been the daily catch or take limit, with no prohibition on a person accumulating multiple daily catch limits. As an aid to enforcement, some jurisdictions have a possession limit that applies in the hunting area or while on public waters, while others have provisions deeming that a person in possession of fish or wildlife in a particular area is deemed to have taken the fish or wildlife from that area.

There seems to be a trend towards total possession limits directed at preventing accumulation of catches.  As with the New Zealand example mentioned above, the justification seems to be prevent suspected traffickers from being able to claim that a large quantity of fish or wildlife has been taken lawfully over an extended period.

Is anyone else seeing this trend?

What is the situation in your jurisdiction, and how does it work?

Conspiracy laws are often used to disrupt and dismantle organised criminal enterprises. The essence of a conspiracy is the agreement between two or more people to commit an unlawful act in the furtherance of of the object of the conspiracy.

Classification of Conspiracy

In some jurisdictions, conspiracy to commit a minor offence is itself a serious offence. For example, in the State of Victoria, Australia an offence under the Fisheries Act 1995 to exceed the catch limit for a species of fish is a summary offence punishable by a maximum fine of $2,000 and no jail time. Conspiracy to commit that offence, however, is an indictable offence punishable by up to 5 years jail. In the USA, this would be equivalent to a conspiracy to commit a misdemeanour being classified as a felony. The policy justification cited for the difference in penalty is that a conspiracy "assumes a formidable or aggravated character when it is to be effected by the powers of combination (i.e. by more than one person)": Parnell's case (1881) 14 Cox CC 508

Advantages of charging conspiracy

Aside from the advantage in some jurisdictions of increasing the penalties available, there is also a tactical advantage to the prosecution during a conspiracy trial.  Firstly, often evidence that may have been inadmissible on the ground that it is not relevant in a prosecution for a substantive offence, may be relevant in a conspiracy prosecution.  Secondly, at least in Australia and the United Kingdom, if there is other reasonable evidence that an accused person was a participant in a conspiracy, evidence of things done or said in furtherance of the conspiracy in that person's absence by an alleged co-conspirator will be admissible against that person, as evidence of his participation in the conspiracy: Tripodi v R (1961) 104 CLR 1. 

Limitations on the use of conspiracy charges

In British Commonwealth countries, such as Australia and England, the courts have been critical of prosecutors charging conspiracy in cases where where it is alleged that a conspiracy to commit a single substantive offence has been brought to fruition. In R v Hoar 1981 148 CLR 32, which coincidentally was a fisheries case, the High Court of Australia (Supreme Court)  held that, generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed.  In subsequent cases, however, Australian courts have held that where the case involves proof of a ring of criminality, a charge of a conspiracy may more accord with the reality of the situation, namely the setting up and operation of a criminal organisation: R v Shepherd (1988) 94 FLR 55.

One other limitation to consider in conspiracy cases (and also  other cases involving offences outside fish and wildlife laws) is that, as the offence of conspiracy is not found in the fish or wildlife statute, the arrest, search, seizure and forfeiture provisions of fish and wildlife statutes will not normally be available.  This was a problem faced by the prosecution in the Hoar case.  As conspiracy to commit an offence under the Fisheries Act of the Northern Territory of Australia was itself an offence under the Criminal Law and Procedure Act, the court did not have the power to forfeit equipment seized under the Fisheries Act.

Practical use of conspiracy in fish & wildlife prosecutions

The California Department of Fish and Game have been using felony conspiracy charges for some time in abalone trafficking investigations to overcome penalty limitations in the Fish and Game Code.  Under the F & G Code, the unlawful sale of abalone is only a misdemeanour.

Here is an example of a recent arrest in California on felony conspiracy to harvest abalone for commercial purposes.  Another link for further information on this case.

In these situations lateral thinking investigators and prosecutors often look to the general criminal law to fill the gap.

General criminal offences (offenses) used in fish, wildlife and environmental prosecutions include:

• Conspiracy;
• Fraud offences;
• theft (stealing); and
• Proceeds of crime offences.

In this series I will discuss a number of cases where these offences have been successfully used for fish and wildlife crime. I apologise in advance for the fisheries focus here, however these are the examples I have found. The principles used equally apply to wildlife and other environmental cases. If you have wildlife or other environmental examples, feel free to post them in the comments.