by Kim Ives

On Oct. 28, Judge Abraham Gerges sentenced in New York State Court in Brooklyn former Haitian death squad leader Emmanuel “Toto” Constant to 12 to 37 years in prison on six counts of scheming to defraud, grand larceny and falsifying business records.

The sentence was just short of the 15 to 45 year maximum sentence Constant could have received.

Constant, 52, was convicted on the charges on Jul. 25, after a two-week trial and three hours of deliberations by a 12-member jury (see Haiti Liberté, Vol. 2, No. 2, 7/30/2008). The verdict was hailed by U.S. and Haitian human rights groups who had pursued Constant for his role as leader of the Revolutionary Front for the Advancement and Progress of Haiti (FRAPH), a paramilitary death-squad which helped the Haitian Army kill some 5,000 Haitians during the 1991-1994 coup d’état in Haiti. Constant was also a CIA informant in Haiti for $700 monthly, he told CBS in 1995.

In his sentencing statement, Judge Gerges noted that Constant was “a full and active participant” in an “elaborate fraud that included the use of ‘straw buyers,’ falsification of key portions of loan documentation required by law, false appraisals, and inflated income figures for these notional buyers. All of this fabricated information was used to falsely inflate a property’s value so a lending institution would loan an amount of money in excess of the property’s worth.” Constant and the dozen or so other confederates in his mortgage fraud ring “would then split the ‘profit,’” Gerges wrote.

Gerges noted that Constant’s case “takes on an added resonance given the current global financial crisis,” arguing that “this scheme, and others like it, have played a role” in the U.S. foreclosure crisis and “economic meltdown.”

“Mortgage fraud is not a victimless crime,” Gerges continued. “All citizens and taxpayers are victims of this scheme. Falsely inflated real estate prices impact our communities by distorting the market and, for most Americans, their home is their most significant asset.”

Judge Gerges also took into account Constant’s “truly heinous record of violence, murder, torture and intimidation” during the neo-Duvalierist coup of 1991-94, noting that when he slipped into the U.S. in 1995, he “embarked on a further life of crime.” The judge also understood that the scheme in Brooklyn’s Kings County was “not an isolated incident; [Constant] was also involved in another similar mortgage fraud scheme in Suffolk County, New York… It is evident that he will continue to flout the law, if given the opportunity.’

Gerges closed with a recommendation that Constant serve out his time in New York State prisons. “Given the uncertainty of the political situation in Haiti and the very real chance that the defendant may be able to evade justice due to the instability in the Haitian judicial system, it is this court’s hope that the defendant remain in New York State for the full term of incarceration, although it is apparent that the federal authorities may move to deport him shortly.”

During the sentencing hearing, Constant introduced a thirty-odd page memorandum aimed at convincing Gerges to delay or soften sentencing. As he had done previously, Constant then made a long presentation that he was the victim of an international smear campaign and that the FRAPH was a defender of democracy and human rights.

Gerges closely reviewed the documents that Constant submitted but did not alter his sentencing.

“The judge was very careful all along to make sure that he was following the law and giving Constant his due process rights, rights which Constant’s victims in Haiti were never accorded,” said attorney Jennie Green of the Center for Constitutional Rights (CCR), who submitted briefs and testimony to Judge Gerges about Constant’s past human rights crimes in Haiti."I think that it will make it very difficult for Constant to overturn this decision on appeal.”

“We are happy that he is facing justice and receiving the sentence he deserved,” she added. “We are also gratified that the judge made a point of asking that the sentence be served in New York.”

Lawyer Brian Concannon of the Institute for Justice and Democracy in Haiti (IJDH) also underlined the importance of Constant not being deported now. “The New York State Courts have done their job to ensure justice for Constant’s victims,” he said. “It is now up to the Federal government to ensure that he serves a sufficient sentence in U.S. prisons. and not be deported until the Haitian government can demonstrate that it can effectively prosecute him. If Constant were deported today, he would be free pretty quickly.”

An elderly Haitian woman named Marie, whose family had been victimized under the Duvalier dictatorships and who regularly attended the trial and picket-lines outside the court, was moved to tears after the sentencing. “Praise God!” she cried out as Constant was led away. The judge and court security guards were startled by the outburst. They looked at each other, befuddled for several moments, but then did nothing to remove her from the court.