The prosecution’s case against well-known lawyer Arcelio Hernandez Mussio was aided by emails he had exchanged with U.S. investors.
The lawyer, whose last office was in Jacó, is expected to appeal his sentence, but the 116-page written decision by the Tribunal de Penal de Puntarenas is detailed and comprehensive. The court sentenced the lawyer to 10 years in prison and ordered him to pay back more than $1 million to seven investors.
The would-be investors are Justin Dean Hamel, Gretchen Hamel, Sherry Lee Meehan, Chistine Larson, Suresh Kumar Krishnan, Ray David Krueger-Koplin and Suzane Therese Krueger-Koplin, according to the decision.
The court said that Hernández took some $626.698.68 that had been entrusted to him for the purchase of the Hotel Rancharlo in Sámara, which was owned through a corporation by Canadian Michael Lefrance.
Testimony at the trial said that Lefrance was so affected by the failure of the sale that he ended up selling the property for half price, returned to Canada and committed suicide. That was not part of the actions for which Hernández was tried.
The court heard that Hernández was a well-respected, bilingual lawyer and that Justin Hamel had employed him for legal business in the past. The investor relied on printed advertisements as well as Internet sources to verify the lawyer’s standing, according to the decision.
Hernández and his firm, Bufete Hernández Mussio & Asociados, advertised in A.M. Costa Rica up until last September. He offered escrow services and correctly said his firm was registered with the Superintendencia de Entidades Financieras, which is what Hamel was seeking.
The court in its decision made a distinction that Hernández was convicted of his activities as an escrow agent and not as a lawyer or notary. The court declined to rule that he could no longer practice. The conviction was for fraudulent administration.
As a defense, Hernández said he was suffering from depression over a divorce, had an obsessive-compulsive ailment and termed the legal situation traumatic.
The court said that he showed he did not have any metal impairment because on the day he was supposed to surrender the money for the real estate deal and the following day he transferred $250,000 to HSBC Bank de New York. The court said that not only did this show he was in his right mind but that he also gave the bank fictitious sources for the money.
The Hernández case is important because only infrequently do lawyers face trial for taking the money of their clients. A.M. Costa Rica has received a number of complaints from investors who lost funds. For the most part, unlike the group that involved the Hamels, most of those who complained did not have the resources or the will to continue with a criminal case.
Some said that the lawyers who took their money offered to give them a promissory note and promised that they would pay back the funds. Testimony in the Hernández case said he made a similar offer, and if the investors accepted his pagaré, as such a note is called here, legal action would have been precluded.
Hamel and his fellow investors did not waste any time. Hernández failed to show up at a closing in Nicoya June 1, 2010. He excuse was that he missed a plane flight. His secretary also told the investors that he had checked into a hospital, said the transcript.
The investors moved quickly, and judicial police raided the San Joaquín de Flores apartment of Hernández June 23.
At last report, Hernández still was in prison even though an appeal was expected. The court said he had lived years in the United States and had contacts there, as well as the $250,000. The judges considered him a flight risk.
The email messages between the lawyer and Hamel showed up in part in the transcript. The messages clearly show that Hernández was supposed to escrow the money and deliver it to the seller on closing. The transcript reports the date and time of the emails down to the exact second.
Instead, the evidence showed, the lawyer transferred the money from his company account to his personal accounts. A Judicial Investigating Organization accountant testified to these facts at trial.
The judges involved were Eduardo Rojas Sáenz, Simón Angulo Arredondo and Miguel Porras Cascante.
The prosecutor in the case was Liseeth Garro Arce. The investors were represented in a parallel civil action by Douglas Murillo Murillo. Hernández was defended by Alejandra Araya.
The case was decided July 7, but the lengthy written decision was not available until late last week.
In the civil part of the decision, the court awarded each litigant $75,000 in moral damages and actual damages of $600,000. The court noted that the investors had borrowed some money from parents and friends to generate the cash needed to complete the deal.