Do­minica Diplo­matic Pass­port Row high­lights Dis­tinc­tion be­tween ‘know­ingly’ and ‘know­able’

The Star (St. Lucia) - - REGIONAL - --- Caribbean News Now

The lat­est con­tro­versy over the is­sue of diplo­matic pass­ports by Eastern Caribbean gov­ern­ments to wealthy in­di­vid­u­als with ques­tion­able back­grounds and mo­tives has served to raise aware­ness of a lit­tle-dis­cussed pro­vi­sion in US law as it re­lates to sanc­tions im­posed on Iran.

The Com­pre­hen­sive Iran Sanc­tions, Ac­count­abil­ity, and Divest­ment Act (CISADA) of 2010 ex­panded the scope of po­ten­tial crim­i­nal and civil li­a­bil­ity un­der the law from pos­sess­ing “ac­tual knowl­edge” to in­clude what “should have been known”.

In gen­er­ally ac­cepted US le­gal us­age, when the word “know­ingly” is used, it means that the de­fen­dant re­alised what he was do­ing and was aware of the na­ture of his con­duct and did not act through ig­no­rance, mis­take, or ac­ci­dent. Knowl­edge may be proved by the de­fen­dant’s con­duct and by all the facts and cir­cum­stances sur­round­ing the case. [United States v. Kist­ing, 159 Fed. Appx. 725, 728 (7th Cir. Ill. 2005)]

How­ever, in Sec­tion 101 of CISADA (“Def­i­ni­tions”), sub­sec­tion (6) pro­vides:

(6) KNOW­INGLY -- The term ‘‘know­ingly’’, with re­spect to con­duct, a cir­cum­stance, or a re­sult, means that a per­son has ac­tual knowl­edge, or should have known, of the con­duct, the cir­cum­stance, or the re­sult.

There­fore, once sig­nif­i­cant and/or rel­e­vant in­for­ma­tion is freely avail­able in the pub­lic domain, there is an ex­pec­ta­tion that such in­for­ma­tion is know­able.

Dan Peak, CEO of WorldCheck, noted, “This leg­is­la­tion has teeth and it will have a se­ri­ous bite. The ex­panded scope of the new in­ter­na­tional leg­is­la­tion means that check­ing dusty, old sanc­tion lists or do­ing In­ter­net searches for any­thing men­tion­ing Iran is not go­ing to cut it.”

In fact, World-Check es­tab­lished a new Iran Eco­nomic In­ter­est so­lu­tion that en­abled its clients to screen ev­ery re­la­tion­ship and trans­ac­tion for in­di­vid­u­als and en­ti­ties with a “know­able eco­nomic re­la­tion­ship with Iran, there­fore en­sur­ing the client is ad­e­quately pro­tected from risk.

While the cur­rent con­tro­versy re­lates to the al­leged sale of a Do­minica diplo­matic pass­port to Ira­nian na­tional, Alireza Mon­fared, who has since been ar­rested in the Do­mini­can Repub­lic and “ex­tra­dited” to Iran to face charges there re­lated to a multi­bil­lion dol­lar fraud con­nected to sanc­tions-evad­ing oil sales, none of the Eastern Caribbean gov­ern­ments that run cit­i­zen­ship by in­vest­ment pro­grammes have been im­mune to al­le­ga­tions of im­pro­pri­ety re­gard­ing the is­sue of diplo­matic pass­ports, some also in­volv­ing other Ira­nian na­tion­als.

Although Do­minica Prime Min­is­ter Roo­sevelt Sk­er­rit has de­nied that he has ever sold or will ever sell diplo­matic pass­ports to any­one, his ex­po­sure to US crim­i­nal and/or civil pro­ceed­ings for fa­cil­i­tat­ing the free­dom of travel of an in­di­vid­ual in­volved in the eva­sion of Iran sanc­tions would not ap­pear to turn on whether he re­ceived money but whether Mon­fared’s in­volve­ment was “know­able”.

Given that at least one com­pli­ance ex­pert that worked for World-Check at the time has stated that he had been aware of Mon­fared’s ac­tiv­i­ties as long ago as 2012, an as­ser­tion by Sk­er­rit or on his be­half that what ap­pears to be a largely su­per­fi­cial “due dili­gence” re­port ob­tained in 2014 from a firm that may not have the nec­es­sary re­sources or ex­per­tise to do so would not seem to amount to a per­sua­sive de­fence in this re­spect.

Sim­ply put, un­der US law, Mon­fared’s ac­tiv­i­ties as an Iran sanc­tions evader were clearly “know­able” in 2014 if the right re­sources had been en­gaged.

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