|Richard Powers, acquitted, not guilty, Dr Gary Michelson, spine, patent, Costa Rica, teak, fraud, criminal, lawsuit, complaint|
Proof Philip Powers is innocent. Gary Michelson lied. Gary Michelson was not defrauded.
The actual pdf is very hard to read in it's original format. This was translated from Costa Rican Spanish to Costa Rican English. Those aren't misspellings but merely the way you spell English words in Costa Rica. They are spelled like olde English. The phrasing is Costa Rican English, not American English. I made paragraphs where I thought the original paragraphs would have been. Still, huge chunks of text.
Here is the actual pdf.
I will summarize, paraphrase the below so you can follow it more easily. Gary Michelson accused Philip Powers of criminal fraud in Costa Rica. The case lasted a few years. The Costa Rican DA Marco Pochet-Meléndez as Pavas Coordinating Prosecutor investigated the case interviewing witnesses, Gary Michelson and looking at physical evidence, documents. The DA of Costa Rica concluded their investigation and stated no crime was committed. The DA requested that Philip Powers be acquitted.
The DA of Costa Rica stated that there was no agreement which stated Powers could only make 6% commission or profit on the sale of land to Gary Michelson. Over the course of the three year investigation Michelson never produced the contract. The DA believes this shows that Gary Michelson is lying about there being a contract for 6%. We later come to find out there was no contract. Gary Michelson committed perjury. Gary then stated the contract was oral yet has no proof at all. Again Gary commits perjury which is a crime.
Powers was acting as an independent real estate agent. The only agreement between Powers and Michelson had to do with compensation for planting and maintaining trees. Powers did not steal any money out of C & M Investments or from Gary Michelson. The DA stated that a 6% commission does not make any sense. No one would do all the work Powers did for only 6%. Powers cleared the land, title, paid taxes. This process sometimes took two to three years before he could sell it to Michelson.
DA stated that Powers merely offered land to Michelson for a price. Michelson either chose to buy it or not. Michelson did this of his own free will. Michelson did not buy all land offered to him. Powers did not fraudulently induce Michelson to buy the properties. Michelson knew that teak trees could not be planted on every single square inch of the properties he bought. Farms here in the US don't have crops on every single square inch of lots. It's physically impossible. Michelson approved of this and continued to buy land.
The DA pointed out that after Michelson accused Powers of fraud Powers offered to buy the properties back for what Michelson paid for them. Michelson refused. Powers then offered to buy the properties back for double what Michelson paid for them. Michelson still refused because the properties were worth much more.
The DA concluded that Powers did not defraud Michelson. There was no agreement which said he could only receive a 6% commission. Powers never stole any money. Gary Michelson did not lose one penny. Michelson merely feels that he should have only paid what Powers paid to the original land owners. DA states that doesn't make any sense. No one would do all that work for only 6% commission. They'd lose money. A 6% commission is only appropriate if an agent merely introduces a buyer to the seller and the property is able to be sold as is. DA requests dismissal.
The DA of Costa Rica has stated Richard Powers did not commit fraud. I'm sure DA Jackie Lacey and Robert Knowles have this document. For this reason they should have never filed a criminal complaint against Richard Powers. The DA of LA County actually flew people to Costa Rica to investigate this case! What a waste of tax payer money. Their investigator should have come to the same conclusions as the Costa Rican prosecutor. There is so much corruption in this case. Michelson should drop the charges. If he needs to save face, he can blame one of his advisors for not being honest about all the facts. What's really ironic here is Gary brags to the media and others about his great investment in teak farms in Costa Rica!
1 acre = .40 hectare
1 US $ = 500 Costa Rican colon
"The undersigned, Orlando García-Valverde, in his capacity as Official Translator by the Ministry of Foreign and Religious Affairs of the Republic of Costa Rica, appointed pursuant to Executive Decree NO. 377-90-DAJ, hereby certifies that the document in Spanish he has had before him in facsimile form, which consists of an application for final acquittal in the Powers – C&M case, translated into English reads as follows:
Application for final acquittal.
Versus: Phillip Richard Powers.
Crime: fraudulent management.
Plaintiff: C and M Investment Group Limitada.
Messrs.: Pavas Criminal Court. Third Judicial Circuit.
The undersigned, Marco Pochet-Meléndez, in my capacity as Pavas Coordinating Prosecutor, standing before your authority in observance of the pertinent time and form provisions, as per article 311 of the Criminal Procedural Code, hereby request a final acquittal decision in the within case, in consideration of the reasons and arguments set forth below in favour of the accused, to wit:
I. Identification data of the accused: Phillip Richard Powers, of legal age, married, an independent businessperson and a real estate agent, a citizen of the United States of America, a resident of Santa Ana, the holder of residence card.
II. Narration of the facts: based on the allegations filed by the plaintiff, C and M Investment Group Limitada, the following facts of importance have been acknowledged:
a. On a date not precisely established but in 1999 doctor Gary Karlin Michelson, who is a citizen of the United States of America and a resident of that country, met the accused Richard Powers, in the city of Los Angeles, California, United States of America, whereupon the latter introduced himself as an expert in the cultivation of teak, with vast experience in the purchase and sale of property for the development of this type of plantations.
In like manner the accused Powers informed doctor Michelson that since many years before, the price of teak had been showing an annual increase of 15%, whereby if doctor Michelson decided to develop the teak planting business he could obtain a similar rate of return, to which effect he offered him his services, indicating to him that he could find adequate tracts of land in Costa Rica and negotiate fair market prices with the sellers. Together with this, the accused Powers expressed to doctor Michelson that he could also take charge of the management, cultivation and care of the land, and that he could, to such effect, engage the collaboration of Mr. Walter Suárez-Villalobos, who, according to what Powers expressed, was also an expert in teak plantations.
b. In effect, during that year 1999, Mr. Michelson became interested in the business and decided to hire the accused Powers to take charge of the purchase of land for the cultivation of teak in Costa Rica, as well as to see to the maintenance and care thereof.
c. After Powers convinced mister Michelson about his capabilities for the cultivation of teak, both arrived at an oral agreement at a time not yet determined, whereby Powers would receive the moneys that Michelson would send to proceed with the purchase of property for the development of teak plantations, and to manage and care for the plantations referred to after the purchase.
d. In order to perform such duties, Powers and Ms. Virginia Maura-Powers set up the C and M Investment Group, Limitada company (hereinafter C/M for the purposes of this application), on which occasion Messrs. Neil David Campbell, Gary Karlin Michelson, and Phillip Richard Powers were appointed managers, such company being established for purposes of registering under its name all land to be purchased in the future.
e. On the eighteenth of January of the year 2001 the articles of incorporation of C&M were amended, and clause six, among others, was changed, in order for the company to be managed thereafter by a Manager and an Deputy Manager, the Manager being entrusted with the representation of the company for legal and non-legal purposes with full powers of attorney without limitation as to amount, and the Deputy Manager having full powers of attorney without limitation as to amount, but limited to ten thousand dollars; Gary Michelson was appointed on that occasion as Manager, and Neil Campbell as Deputy Manager of the company.
f. That, without a determination of the exact date, but approximately since the month of June 2000 and up to the end of 2006, the accused Powers looked for properties for the development of teak, negotiating a purchase price with the owners thereof, supposedly a fair market price, having purchased for C&M a total of 147 properties amounting to over 9,300 hectares of land.
g. That initially the mechanics for the purchase of many of the properties referred to was the following: the accused Powers found a piece of property deemed appropriate for the planting of teak, and once he negotiated a price that he deemed and recommended as fair he transmitted it to mister Michelson, the legal representative with powers of attorney without limitation as to amount of C&M, an offer that was made via fax to the United States of America, whereby he was informed about the price of the property, which included a 6% commission for the accused Powers, as well as the cost of expenses to close the deal; finally, once mister Michelson approved the purchase, he was informed about the account to which the transfer of funds had to be made.
h. On several occasions the accused Powers confirmed in writing to Mr. Michelson that the land recommended was appropriate for the development of teak of the best quality, and that some of the tracts recommended had teak plantations and that they had been negotiated at fair prices.
i. In conformity with the complaint it is assumed that all fax offer messages for the purchase of property were sent from the locality of Santa Ana by Powers, in representation of Powers Investments & Management Co.
j. That mister Michelson, having believed the assertions made by the accused Powers during the period mentioned, from the year 2000 to the year 2006, sent him an approximate amount of $25,000,000 (twenty-five million dollars), such money having been sent exclusively for the purchase of land in the terms indicated, and such money having been transferred on several occasions to some companies managed by the accused Powers, specifically to the accounts of Powers Investments & Management, Inc., S.A., Protección Forestal de Teca S.A., and to Guanana Gris S.A.
k. That under the mechanism used initially to transfer the properties to C&M the accused Powers enjoyed the collaboration of mister Walter Suárez, whereby the property was first transferred to Walsu S.A., represented precisely by mister Suárez, or to some company managed by the accused to transfer them in a second instance to Walsu S.A.; otherwise Powers’ other companies transferred them to C&M, in most cases with an indication, in this second transfer, of the amount that C&M had actually paid for the property.
l. Specifically on October 3 of the year 2003 Mr. Michelson and the accused Powers decided to formalise the relationship for services that were being rendered through the accused’s companies, several aspects of relevance having been specified; among them, the following:
(i) that Powers Investment would be responsible for the purchase of new reforested pieces of property for C&M;
(ii) Powers would be the person responsible for planting and maintaining the teak plantations in the property purchased by C&M in Costa Rica;
(iii) That in exchange for the planting and maintenance service Powers would receive two dollars for each new tree planted, among other obligations.
II.(III?) That there being a contract itemised verbally, which was, in the year 2003, defined in writing by the parties, in which the most relevant obligations among the parties were set forth, in the year 2006 mister Michelson learned that the assertions about the quality of the land purchased for the cultivation of teak were false, since approximately 70% of the total area of all the land was useless for the development of teak plantations, and since many of the lots had wooded areas, in addition to the fact that there arose the suspicion that Powers’ assertions on the fair price in the purchase of the land were not true either, in view of the fact that, according to certain interviews conducted by the plaintiff with the original owners, they became aware that in some cases the accused Powers exaggerated the sale prices of the lots to the detriment of C&M, two of the following cases having been specifically mentioned in the complaint:
a. Property recorded under number 5-51781-000 in the real estate register as per the title granted on August 26 of the year 2002; regardless of the fact that it is established that mister Servillano Zeledón-Villalobos did sell for the amount of three million colons to Walsu S.A., Zeledón’s son informed the plaintiffs that his father received five hundred and fifty thousand colons per hectare for the sale of that land. The preceding means, according to the complaint, that Mr. Ze-ledón-Villalobos received, for the sale of 147.90 hectares which is the surface area of the property in question, eighty-one million three hundred forty-five thousand colons, whose equivalent in dollars on the date of the purchase would be $223,009.65 dollars. Once the sale became finally registered in the Public Real Estate Register on September 02 of the year 2002, on September 04 of that same year the accused Powers sent a fax message to Michelson offering the property, and asking him to send the money to purchase that property, where he indicated that the sale price of the property was $374,000 dollars, and requesting also the remittance of $6,000 dollars for expenses, when in reality he could not include a commission that would exceed a 6% commission, whereby Powers deliberately and fraudulently exaggerated the price of property 5-51781-000 by approximately $137,609.78 dollars.
b. Property recorded under number 5-8412-000 in the real estate register, where, regardless of proof that, pursuant to the title granted on August 27 of the year 2002, Ms. María Catalina Carrillo-Carrillo did sell for the sum of nine hundred thousand colons to Walsu S.A., Carrillo’s son-in-law informed the plaintiffs that his mother-in-law received two hundred and fifty thousand colons per hectare from Walter Suárez in the sale of that property. The preceding means, according to the complaint, that in return for the sale of 51.25 hectares which is the surface area of the property in question, Ms. Carrillo-Carrillo received the amount of twelve million eight hundred twelve thousand and five hundred colons, an amount that corresponds to the approximate sum of $35,108.51 dollars on the date of the purchase. Once this sale became finally recorded in the public Real Estate Register, on October 01 of the year 2002 the accused Powers sent a fax message to Michelson offering the property, and asking him to send the money to purchase that property, where he indicated that the sale price of the property was $130,000 dollars, and requesting also the remittance of $3,000 dollars for expenses, when in reality he could not include a commission that would exceed a 6% commission, whereby Powers deliberately and fraudulently exaggerated the price of property 5-51781-000 (Translator’s note: this property number differs from the number that appears at the beginning of paragraph b. which refers to the property sold by Ms. Carrillo-Carrillo). That by means of an extension of the complaint filed by the Special Legal Representative, Rocío Amador-Hasbrun, Esq., new facts were added indicating mainly the following:
That the accused Powers obtained the excedent in price referred to by means of a scheme that deceived doctor Michelson, whereby he was assured that the amounts that were being charged to him for the land were the same that he had paid to the sellers, plus the commission to which he was entitled, which could not exceed a commission of six per cent of the total paid for the purchase of the property.
III.(IV?) On the essence. Basis for the application. The entirety of the evidence gathered during this stage of the investigation having been analysed, the conclusion is reached that there is no sufficient basis in the complaint so as to substantiate charges against the accused, Phillip Richard Powers, and to require on well-founded basis the opening of a trial in this case.
After having analysed the different pieces of evidence on record, this representation believes that what is most pertinent and consistent with the law is to request the Pavas Criminal Court to rule Final Acquittal in this case in favour of the accused, on the basis of the considerations that are described below:
From the analysis of these proceedings the conclusion is reached that the Defence of the accused is correct, as it explained it in its requirement for Final Acquittal visible on folios 81(third figure or symbol illegible) and following folios of Volume IV of the record, its request being applicable. In truth, as indicated by the Defence of the accused, this representation arrives at the conclusion that the «representation» attributed to the accused in the complaint, and that the accused supposedly undertook in the C/M Investment Group Limited company, cannot be regarded as such as it was alleged, specifically to substantiate the crime of fraudulent management, as a constituting element of this crime. Such as has become established in the investigation, the accused acquired only one of the two pieces of property reported as summarised in the report of the facts, specifically the property recorded in the real estate register with the number 5-5178-000, which was done in «representation solely for this action» as per the powers of attorney submitted, that is, not done in his capacity as partner, stockholder or representative of the company itself in the strict sense, but on behalf of someone else, since the manager of the company was not present in the country. While it is true that the accused acted as founder of the C/M company according to the certification from the register submitted, the truth of the matter is that he was so only for approximately six months, during which term, as has been proven, he did not acquire the property reported, since the latter was acquired in the year 2002, and the accused was removed from his position in the company in the year 2001; to such effect, the documentation of the public registration bureau should be examined, and especially about changes in the board of the C/M company; this is why special powers of attorney had to be granted to the accused for acquiring only the property in question, to wit, the property bearing number 51781-000 of the real estate register, since the second property reported, whose number is 8412-000 was acquired by a person other than the accused who is not reported in this proceeding.
It is likewise clear for this prosecutorial agency not only that the accused did acquire with powers of attorney for this single action, but that he did so in his capacity as real estate agent, there being, therefore, objectively no grounds to allege the crime investigated.This type of representation does not generate the relationships required to configure the objective elements of the criminal figure of fraudulent management, since, had such assumption been valid, all persons who on a given occasion acquired property on behalf of, and in representation for such action, for C/M should have been likewise reported, such as in the case shown in the record, of the special legal representative of the complaining company, that is, mister José Antonio Muñoz-Fonseca, for instance in a title granted in San Jose on May 22, 2002, which has been added to the record, it being possible to conclude validly that the accused acquired pieces of property for the plaintiff pursuant to a mandate, and not as part of his duties in the company.
It is also possible to gather from the evidence included into the record, that the accused was a free-lance consultant, as per the testimony of Messrs. Marianne Lierow and Walter Suárez, but also with the documentary evidence gathered, to wit, the contracts entered into by the parties, the different deeds where the accused appears, it not being possible to conclude validly from the analysis of such evidentiary elements, that the accused Richard Powers worked for the complaining organisation as it has been reported, since what resulted from the only contract submitted by the complaining party between the accused and C/M was a contractual relationship whereby the accused had to give maintenance to the pieces of property acquired, as well as look for pieces of property for the plaintiff, without specification of any consideration and without establishment of a percentage of benefit for the sale thereof either. Take notice of how, in the contract dated October 13, 2003, visible on folios 383 and following folios, there is indication that the parties were free-lance contractors, nothing relative to commissions for the purchase or sale of property having been established, and that as mentioned in the complaint and by Gary Michelson himself, that the issue was a 6% agreed to, which was not specified in those agreements of wills, no other documentation with respect thereto having been furnished, as assured by Michelson during his appearance at this prosecutorial agency, that is, that his lawyers had documents that proved so; however, to this day, and since the time of such assertion, the evidence was not added to the record, which generates doubts about its very existence; but in any event, such circumstance is not ascertained in this investigation. Much to the contrary, this representation feels that with the evidence gathered it is concluded that such percentage or commission was never agreed to, since what it may sustain is that it appears that the accused was merely a real estate agent who invested his money or that of third parties, such as Walter Suárez, thus being able to purchase property that he would later offer to the complaining organisation, or to any other third party having an interest. Thus, it is therefore not logical that the accused would have appeared together with another company known as Walsu and its representative in the original contract dated February 11, 2003, submitted by the defence, as a real estate agent if he were an employee or a representative of the complaining company itself, since it would have not been necessary to give such titles to the persons who appeared as parties in the legal transaction, let alone identify them for purposes of the contract as «agents,» which shows clearly that they were individuals or organisations involved in a commercial relationship of purchase and sale of land in an independent fashion. In respect thereof we may conclude then that the accused did not have the responsibility to represent the complaining organisation, nor, it appears, can we assert beyond the shadow of a doubt whether the accused was entrusted with the handling or management of moneys from that organisation that contends to be affected. It has not been possible to ascertain in any manner that the accused managed moneys from the complaining organisation, which came from transfers made to accounts of Richard Powers or of the companies represented by him, and furthermore this representation believes that the ac- counting evidence requested at some point during the proceeding is not pertinent to prove a possible management of assets or moneys, since what could be obtained from such proof would be the evidence of money transfers, never of the use thereof, which must be proven by means of other documents or witnesses required and that the complaining organisation has not provided, since the accounting evidence could determine a total amount of money sent from one place to another, or from one person to another, but we cannot know in this way about the destination thereof with respect to the use thereof.
Together with the preceding, taking into consideration what the accused has expressed in relationship to the fact that he himself has admited to having received the amount of money that has been reported as sent, it is felt that an accounting study is not of major relevance, since this has been established by the admission of the accused himself; however, it appears as to use or destination, that the money was used exclusively for the purchase of land. We similarly hold as documentary evidence the sworn translation of a fax message that the accused Powers sent to mister Michelson offering him pieces of property for C/M, in which he indicated that he never received the balance pending for the properties, and that pursuant to the commercial relationship that they maintained among themselves, he was offering him a purchase option on those properties at the original price thereof.
It may then be concluded from such assertions that if the complaining organisation did not show any interest in purchasing such pieces of property, and the funds were not received in the Protección Forestal de Teca account by that date, the assumption would be made that C&M was not interested in purchasing such properties.
Based on the element of proof indicated we may conclude that it appears that there was no management of moneys for the purchase of property, since what was being made was a sale offer; it is likewise obvious that the parties had independence to enter into contracts and that the accused was not a part of any relationship that would tie him to the above-mentioned company or to the representatives thereof. Thus, if the person investigated had been an employee or a representative of C/M, his granting a term to C/M’s manager to express his interest in purchasing certain properties that the company Powers Investments would otherwise offer to third parties would not be understandable.
Another aspect examined by this representation was the matter relative to the percentage of teak cultivation in the lands sold by the accused and purchased by C/M, which is reported in the sense that, upon having met Gary Michelson, the accused alleged to be an expert in teak cultivation, and that motivated Michelson to invest in Costa Rica on properties appropriate for that purpose; however, this is not clear since, in the document submitted, where the civil complaint filed by Gary Michelson against Richard Powers in the United States of America is translated, this is not reported or alleged in this manner, since there is no mention that the accused introduced himself as an expert in teak cultivation but only in real estate, which generates an important contradiction taken into consideration for this request of the prosecution, given the fact that, if this is true, it should not be omitted in the case of a suit involving millions.
Together with the preceding, the accused has offered also as proof the sworn translation of a document that proves that mister Gary Michelson knew that the percentage of teak cultivation was low, and that the number of trees planted was small, all of which he expressed in the year 2003, long before continuing with his commercial land purchase operation up to the year 2006; to this effect see the document attached to the record dated February 4, 2003, translated by a sworn translator, the case being that his assertion that it was not until the year 2006 that he learned about the low percentage planted in the properties is not credible, since, in spite of the fact that he knew about such a situation since the year 2003, he purchased a large number of properties thereafter.
In like manner this representation feels that the public defender of the accused is correct in her/his request visible on folios 817 and following folios of Volume IV of the record, concerning the alleged surcharge charged by the accused to the C/M company as a product of property sales, where it is asserted by the plaintiff that the accused Powers had the obligation to sell the
properties that he would find at the same price that the original sellers charged for them and that he could earn only 6% commission for each purchase of new properties.
Concerning this fact reported, there is no objective evidence that proves that such maximum percentage of 6% was a reality, and it is even less evident that Powers had the obligation to sell the properties at the same price that he had paid to purchase them, since solely the assertion of the plaintiff is known in this respect, which is all the more evident when he affirmed in his ratification of his complaint in Costa Rica, on April 8 last, that he arrived at an agreement in that sense by means of a telephone conversation with mister Powers, there being no witness or documentary proof that would be a reference in this sense; instead, and in this same respect, which is of great importance in this investigation, there is proof confirmed by the accused’s own defence when he asserted that he had no obligation to sell for the same price, and even less of an obligation to charge only 6% commission, a situation that was corroborated by the witness Marianne Lerow.
Also of importance is the contract signed among the parties in the year 200(fourth figure illegible); while it is true that the form in which the accused and the company represented by the latter were to be remunerated is established in it concerning the care and planting of trees, the matter of searching for properties and offering them for sale to C & M is totally omitted in this respect in the body of that contract, which naturally causes this representation to harbour doubts about the existence of such obligation, since it is absolutely logical to think that an obligation of such importance, and under the assumption that it would be real, would have not been omitted in the contract.
This prosecutorial agency even finds of great interest the fact that mister Michelson would have wanted to diminish the importance of the contract executed by the parties when he referred to it in his deposition here in Costa Rica, and would have, even this being the case, filed a civil complaint in the United States of America, the basic document for such a complaint being precisely the referenced contract, which, together with the sworn translation thereof has been added to the record as evidence provided by the accused’s expert defence.
In this context, be it noticed that there is no mention at all in the first complaint filed by the Special Legal Representative that the accused had to sell the properties to C & M at the same price that he had paid to purchase them from the original sellers, and instead the complaint refers to the fact that Powers’ obligation was limited only to obtaining and negotiating fair market prices; thus, this obligation to sell for the same price as that of the original sellers appeared as a new fact when an addition was made to the record by the other Special Legal Representative of C & M, Rocío Amador, Esq. who, in the act of extending the complaint, introduced this new element that was totally omitted in the first complaint, something that generates doubt as to truthfulness of such assertion. The fact that real estate agents work subject to commission of 5 or 6% of profit for each sale accomplished under this intermediary role is known by all; however, pieces of evidence of great importance which support the accused’s own defence have been added to the record with reference to the fact that his work exceeded that of a plain real estate agent, in that, in addition to finding the properties and before transferring them to C & M, he necessarily had to clear the title thereto, given the fact that among the many properties offered to said company some were affected by a number of liens or encumbrances that had to be eliminated, whereby they had to be placed in a clear condition for registry purposes in order for the complaining company to pay the rest of the price, and that in some cases such clearance work took a considerable length of time, this being an assertion that was supported in every respect by the witness Lierow, who pointed out before this prosecutorial agency that it was the accused who purchased the property paying 100% of the money to the seller, out of his own pocket, and who in addition took charge of the clearing of the property, it being understood as freeing it from liens and encumbrances, and cancelling the commissions of all real estate agents; that in most cases new drawings were made; he had, also, to cancel fees for the transfer of each property, and in some cases, approximately in twenty such cases, ownership information requirements had to be met which took as much as three years, there being even cases involving succession, and all payments having been made by mister Powers.
Similarly, the witness Walter Suárez himself pointed out that the accused Richard Phillip Powers was the person who paid an advance to secure the agreement and who later cleared the property in the event there was a problem with it. Even the legal representative of the complaining company, mister Michelson, admitted that Powers performed all those tasks, for which reason it is of vital importance to mention and reiterate the Private Contract among the parties C and M Investment Group, Phillip Richard Powers, Walter Suárez-Villalobos, Walsu Sociedad Anónima, the latter identified in this contract as the agents; however, what is of greater relevance in this contract is that truly C & M and the agents had agreed that the sale and transfer of the properties mentioned in the contract in favour of the former would take place provided the agents would see to the termination of all lease contracts that were affecting the properties, as well as to the payment of the respective charges thereon at the Public Registration Bureau; however, C & M has accepted to buy those properties subject to the commitment that the agents comply with such obligations, to the point where the right of C & M to request the revocation of the purchase and sale contract, as well as to demand from the seller the return of the total sale price paid by C & M is imposed as guarantee to ensure that they shall comply with such obligations, all costs relative to transfer taxes, tax stamps, and professional fees generated by such contractual revocation being charged to the seller, and even committing the agents inconditionally to pay to C & M any amount that the latter would have to pay in judicial or administrative departments; the agents even committed to pay to C & M for damages in respect of actions, claims and/or complaints brought by the State, and/or lessees of the land, among an additional number of commitments of importance.
It is precisely such series of contractual commitments what motivates this prosecutorial agency to arrive at the conclusion that it is neither logical nor proportionate to accept as probable that the accused Powers and the companies that he represented would commit themselves to such an extent in return for a 6%, which is the regular commission paid to an agent merely for bringing a purchaser and a ready seller into agreement, it being very much more logical to accept that such commitments arose from the possibilities that Powers and the companies that he represented had to offer to sell to C & M at the price they deemed appropriate after adding all costs and commissions for clearance of the properties, to the point that he became a guarantor of such purchases by C & M.
On the other hand, in his addition of elements to the investigation the accused provided the sworn translation of a document with which the special legal representative of C/M, mister José Antonio Muñoz sent a document to William Capps with a copy to attorney Rodrigo Cordero, on the subject of C/M, where they are advised that all the properties purchased by Walsú S.A. were purchased at thirds of the price of sale offered to the complaining company, whereby it becomes clear that, thanks to the legal assistance that such complaining organisation and its representatives had, the amount paid for the properties by the accused and the companies that he represented, or those that his partner (word illegible) Walter Suárez, was always known; therefore, the prosecutorial agency considers that the surcharge as a reason for a complaint is not acceptable, given the fact that such situation was known since many years ago by the General Legal Representative of C & M himself.
In addition to the preceding it has not been possible to ascertain damage against the complaining organisation, which in this case would be of a financial nature, since we can clearly notice that property retention, or loss in sales or in the management of assets are not reported, and far from submitting evidence of any damage, the complaint deals with the subject in relationship to an excessive charge for commission on the part of the accused, but, as indicated before, this may not be ascertained; therefore, it is not possible to allege a damage that is not proven in a case lasting several years, a time sufficient to gather and provide the corresponding evidence, it, instead, being strange that the accused himself offered to repurchase the properties for almost double the price paid by the complaining company, and the latter did not respond in any manner through its representatives, but that in any event they don’t prove in all certainty during the investigation the damage against the company required to constitute the possible crimes relative to property reported.
In like manner this prosecutorial agency dismisses entirely the existence of the crime of fraud, since the objective elements that constitute this type of crime as such were not proven; deception by the accused was not proven; no proof is provided to calculate financial damages.
IV.(V?) In consequence thereof: In conformity with the provisions of article 311 of the Criminal Procedural Code, I hereby reiterate my application in order for a decision of final acquittal to be entered in this case brought against Richard Phillip Powers for the crime of fraudulent management to the detriment of C and M Investment Group Limited.
V.(VI?) Notices: For purposes of acknowledging receipt of notices I submit the Pavas Prosecutorial Agency, or otherwise fax number 2296-8526. Pavas, June 2, 2010. Marco Pochet-Meléndez, Prosecutor for Pavas. (Ink stamp: «Republic of Costa Rica. Judicial Branch. Prosecutorial Agency. Prosecutor for Pavas»).
IN WITNESS WHEREOF I hereby set my hand and stamp on this Official Translation which consists of seven folios, in San Jose, on this nineteenth day of June, 2010, the statutory stamps having been affixed hereto and duly invalidated. Orlando García-Valverde."
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