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 Editorials | Issues | April 2008 
Brenda Martin Case Shows Inconsistent Treatment
 Charles Rusnell - Edmonton Journal.com
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| | Brenda Martin at her hearing Monday in Mexico. (Global National) | | |
Guadalajara lawyer in mansion, Canadian woman in jail after association with con man
Edmonton - When prominent Guadalajara lawyer Marco Antonio del Toro wandered into the courthouse on Monday, the irony of the situation was not lost on Brenda Martin, whose final hearing after more than two years imprisonment had just ended.
"He was walking around free and I was being led away in handcuffs back to jail," Martin said bitterly. "That is some fair, isn't it?"
Comparing the Mexican justice system's treatment of Martin and del Toro is unavoidable because both once worked for Canadian con man Alyn Waage (pronounced wage), a fact raised in court Monday.
Waage, a former Edmontonian, pulled off what is believed to the world's biggest Internet-based fraud. Operating from a Puerto Vallarta mansion between 1999 and 2001, he bilked $60 million from 15,000 investors in 59 countries.
Del Toro and Martin both told Mexican investigators in 2001 they didn't know the money they received from Waage was fraudulently obtained - but their treatment was distinctly different.
Martin, a chef for Waage, got $26,000 in severance pay after he fired her. She was interviewed twice by police but was never told she was a suspect. She was never provided with an approved translator or a lawyer when she gave two voluntary statements to police.
Five years after Waage's arrest, Martin was grabbed off the street in an elaborate sting operation, and the prosecution subsequently used her voluntary statements as evidence to charge her. She had invested $10,000 of her severance in Waage's "business," money that was later refunded to her by Waage.
She has spent more than two years in prison charged with knowingly accepting illicit funds. The prosecution concedes it has no direct evidence but says there is enough circumstantial evidence to prove she had to have known the money was illicit.
Del Toro was Waage's lawyer, but he was also the personal lawyer of then president Vicente Fox. Del Toro got Waage's $2.2 million Puerto Vallarta mansion, which he recently listed for sale for $3.5 million, despite the fact that it is the subject of an American court's forfeiture order. He also acknowledges receiving more than $1 million in legal fees. All this came from Waage's fraud, and he obtained it after Waage had been arrested and charged in Mexico in 2001. Some of it was paid after Waage jumped bail and fled to Costa Rica, where he continued his fraud.
In an exclusive interview with the Edmonton Journal earlier this week, Del Toro insists he had no knowledge the money he received came from illegal activity. Both the police and the federal court believed him.
In fact, even after the Mexican federal court knew the mansion had been bought with illicit funds, and was the subject of an American forfeiture order, it still awarded del Toro the mansion after he filed a claim against it for the legal fees owed to him by Waage.
"Within Mexico, ... if you go through all the legal proceedings, you have a right to collect such an important debt," Del Toro said, adding that the U.S. did not challenge his claim to the mansion.
Mexican court documents obtained by The Journal show del Toro received more than $1 million in payments from a bank account controlled by Canadian Keith Nordick, Waage's brother-in-law and his right-hand man in the scheme.
After Waage's arrest, he gave Nordick signing authority over his bank accounts to pay del Toro and other expenses - including Brenda Martin. In fact, the $26,000 paid to Martin came from the same account that paid del Toro more than $1 million. And some of the money paid to del Toro was paid to a joint account with Nordick and del Toro as signatories.
In an interview from a North Carolina prison where he is serving a 10-year sentence, Waage said he didn't trust Mexican lawyers and so he insisted del Toro be paid through a joint account with Nordick. The money was only to be paid at certain junctures in his case. Del Toro confirmed this.
Waage said he never told del Toro the money was fraudulently obtained. He said he believed, as did del Toro, that Waage had broken no laws in Mexico because there were no Mexican victims.
Court documents show del Toro received several payments ranging from $10,000 to more than $350,000 from Nordick. He also received payments from Waage's co-accused, including his son Cary Waage and his sister, Lynn Waage Johnston, of $45,000 each.
Nordick and Cary Waage were both sentenced to five years in the U.S., and authorities are still searching for Johnston.
The Journal has corresponded with Nordick, who is serving time in a federal penitentiary in Ohio. In a July 13, 2007, letter, Nordick described his involvement with del Toro. He said that after del Toro and his staff met individually with himself and Waage, they decided to take on the case for an "exceptional amount of money."
"Alyn OKed the fees and the lawyers devised a payment plan that would involve me," Nordick said. "I was assured that it was legal and nothing I was doing was illegal or improper. The lawyer (del Toro) and myself opened a joint account at the bank and Alyn had someone deposit the lawyer's fees into it."
Nordick said Del Toro's law firm also helped him collect a debt in Puerto Vallarta and deposit the money in several Costa Rican banks. This money was also to be used to pay del Toro and his law firm. Nordick and del Toro flew to Costa Rica to get the money. The first bank released the money and it went to several lawyers, Nordick said. But at the next two banks, the accounts had been frozen.
Del Toro, who is originally from Costa Rica, confirmed Nordick's version of events but said the money was to pay legal fees to challenge an extradition application against Waage.
All of these financial dealings between del Toro, Waage, Nordick and others raise questions for Martin's lawyers about equal treatment.
The main piece of circumstantial evidence put forth by prosecutors against Martin is that she must have known the money she received was illicit because it came from Nordick, a known member of the scheme, and from an offshore account. It was enough to convince a judge to issue an arrest warrant for Martin.
But the same prosecutors apparently did not apply the same criminal legal standard to del Toro. While Martin had received money from Nordick, del Toro shared a joint account with him through which flowed more than a million dollars. And del Toro had personally received roughly 50 times as much money from Waage via Nordick as Martin from the same account.
"That is easy to explain," del Toro said. "I didn't know Mr. Waage prior to him being involved in a criminal charge."
Del Toro said he and Martin were part of the same police investigation. But the difference in their treatment is glaring.
Del Toro said he knew he was a suspect because he had been invited by the prosecution to file a defence explaining all the money transfers. He was never arrested and never spent a minute in custody despite his close financial dealings with Waage and Nordick.
"In that time frame, we presented ourselves to the public prosecutors, filed all the documents we have, presented any witnesses we had and the public prosecutors determined that our evidence was sufficient enough to clarify our professional activity in the case," del Toro said.
Martin was never advised that she was a suspect and never advised of her right to present evidence of her innocence before her arrest. To the contrary, she was grabbed off the street in a sting operation five years after Waage was arrested.
Prosecutors did seize Waage's Puerto Vallarta mansion and del Toro made an application to the federal court to get it back, a process that took four years.
But Mexican court documents show del Toro simply removed the seizure seals and took the house back three years before the court issued its ruling and Mexican justice officials let him keep it.
During the investigation, police interviewed the pool cleaner, Jorge Luis Sandoval Alvarez. He told police that two months after Waage's arrest in early 2001, del Toro's wife, Monica, showed up at the mansion.
"Mrs. Monica del Toro asked me if I was the person who fixed the swimming pool. I answered I was, so she told me she was the new owner and she asked me if I wanted to work for her," Sandoval said. In June 2002, Sandoval arrived to find seals attached to the mansion's door which stated it had been seized by Mexican justice authorities. Sandoval phoned Monica del Toro.
"She replied that there was no problem, that the house was in her name and that she had made the change of ownership and that her husband was in charge of the situation." Sandoval said.
The seals were eventually removed, and the del Toro's used the 15,000 square-foot mansion, with its sweeping views of the Bay of Banderas from its mirrored pool, as their weekend and holiday getaway.
crusnell(at)thejournal.canwest.com
Visit EdmontonJournal.com for Charles Rusnell's reports from Mexico as he continues to follow the Brenda Martin case. |
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