By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A federal judge has branded one of Island Luck's co-founders a "fugitive" from US justice in rejecting his bid to have near-decade old human smuggling charges thrown out.

District judge Denise Cote, in a January 27, 2020, verdict said she would not consider Adrian Fox's claim that his constitutional rights to "a speedy trial" were being violated by the US government because he has remained in The Bahamas and not submitted himself to the court's jurisdiction.

She added that Mr Fox, who teamed with Sebas Bastian to create The Bahamas' largest web shop chain by market share with over $100m in annual revenues, was effectively "flouting the judicial process" through having been aware of the charges against him since at least 2014 but deliberately remaining outside the reach of the US authorities.

"The court declines to consider the merits of Fox’s motion," Judge Cote ruled. "Under the fugitive disentitlement doctrine, judicial resources need not be expended on the motion of a defendant who is unwilling to submit to the court’s jurisdiction.

"As a threshold matter, Fox is a fugitive....... Fox’s argument - that a defendant becomes a fugitive only upon actual flight from the judicial district in which he was indicted - is unavailing." The judge added that the "fugitive" term can also be applied to persons who know they have been indicted but refuse to return to the US to face charges.

Noting that the current situation favours the Island Luck co-founder, Judge Cote said: "First, unless Fox appears he cannot be held to account on the indictment. Thus, while a decision in Fox’s favour would grant him relief, a decision that the indictment should not be dismissed would be unenforceable....

"He has been aware of the indictment since at least 2014, when counsel appeared on his behalf, but he has chosen to remain beyond the reach of the warrant issued for his arrest. Third, entertaining Fox’s motion would encourage similar flights from justice, which interfere with the efficient operation of the courts.

"Fourth, if the defendant continues to remain a fugitive, the [US] government will be prejudiced by further delay in its ability to prosecute this case. In the exercise of its discretion, the court finds that Fox is a fugitive who is disentitled from consideration of his motion to dismiss."

Alex Spiro, Mr Fox's US attorney, yesterday told Tribune Business in an e-mailed statement that the charges against the Island Luck co-founder "can and should be dismissed".

He added that the southern New York federal court's determination was based on a technicality, and said his client was focused on his business and philanthropic activities.

"We firmly believe the indictment can and should be dismissed," Mr Spiro said. "The ruling was based on a technical issue; that Mr Fox is not present in the United States. He remains committed to his business and philanthropic efforts, and looks forward to this issue being behind him."

Judge Cote did leave the door open to Mr Fox renewing his dismissal bid - but only if he submits to the New York court's jurisdiction. The Island Luck co-founder had argued that the charges should be dismissed because the US government's near 10-year failure to launch extradition proceedings against him had breached his "right to a speedy trial"

It remains unclear whether the US government will now launch extradition proceedings against Mr Fox in The Bahamas. The federal authorities have to-date declined to exercise this option even though the charges against Mr Fox are two months' shy of being 10 years-old.

He 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.

Legal papers previously obtained by Tribune Business disclosed US government accusations that Mr Fox only sought to dismiss the allegations against him after efforts to negotiate a "deferred prosecution agreement" with the southern district of New York attorney's office stalled.

The documents also revealed that legal representatives acting for the Island Luck co-founder had 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.

However, Mr Fox's attorneys 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 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. He has remained in the public spotlight through the charitable activities of his Fox Foundation, which for last Christmas financed an extensive neighbourhood clean-up in the Kemp Road area/Freetown constituency.

The foundation traditionally holds an annual Christmas block party and gift/food giveaway for residents in the same area, but switched its giving to a beautification project in 2019.