ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-1590000129-00MO
DATE: 20150709
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
LUCAS OBI
Applicant
Elaine Krivel, for the Crown
Laurence Cohen, for the Applicant
HEARD: July 7, 2015
Reasons for Ruling Re: Application for Judicial Interim Release
M. G. Quigley, J.
[1] On this application, Lucas Obi seeks to be released on bail pending an extradition hearing which will be held in the months ahead to determine whether the request of the United States of America to have him extradited to face mass-marketing related fraud charges should be accepted and a warrant of committal for extradition issued. The prerequisites under the Extradition Act for the hearing to take place have now been met, since the Record of the Case (ROC) against him has been filed in Canada by the U.S. authorities, and since the Minister of Justice has issued an authority to proceed in accordance with the provisions of the Act.
[2] The request of the United States to proceed against Mr. Obi resulted in his arrest on a warrant issued on June 29th of this year. He has been held in custody since then. On this application he seeks an order releasing him on bail pending the committal hearing, and presumably, subject to the outcome of that hearing and the views of the presiding judge at that time, potentially also thereafter if a warrant of committal for his extradition is issued and he then proceeds to the next phase of the process and pursues other remedies under the Act to appeal to the Minister against being surrendered for extradition.
[3] The offence named in the authority to proceed is fraud, contrary to section 380 of the Criminal Code of Canada, the equivalent offence in Canada to the fraud charges that are alleged against Mr. Obi in the United States.
[4] Whether or not Mr. Obi is committed for extradition from Canada to the United States by this Court, it is largely related to the sufficiency of the evidentiary record put forward by the United States authorities as set out in the ROC for prosecution. In this particular ROC, Christy Fawcett, Assistant United States Attorney for the Middle District of Pennsylvania, certified on June 1, 2015 that the United States requests extradition of three individuals, including Mr. Obi. The ROC is set out in a 34-page document certified by Ms. Fawcett. The ROC sets out, in summary form, the evidence that will be presented by the U.S. prosecutor when the case proceeds to trial in the United States.
[5] Of course it remains to be determined whether the ROC put forward to Canada and now authorized to proceed to the committal stage by the Minister of Justice of Canada will be adequate to cause a justice of this court to order a warrant of committal to issue in respect to Mr. Obi for extradition to the United States. To understand the scope of the allegations against him, it is helpful to refer to the brief summary set out on page 1 of the ROC.
[6] Beginning in or around 1999, Lucas Obi is alleged to have recruited associates to apply for Western Union and Moneygram money transfer agency agreements. The agents, including Eloho Idisi-Arah and James Ugoh, already extradited to the United States from Canada, at Obi’s direction, are alleged to have processed and laundered the fraud induced money transfers at the money transfer outlet locations that were financed by Mr. Obi. Furthermore, Mr. Obi is alleged to have recruited numerous Western Union and Moneygram agents, referred to in the ROC as “complicit agents”, to convert fraud induced Western Union and Moneygram money transfers and money transfer cheques on behalf of international fraudulent mass marketers. It is alleged that the other two individuals whose extradition is sought together with Mr. Obi, and other allegedly similarly complicit Western Union and Moneygram agents, known and unknown to the investigation, entered false payee identification and biographical data into the Western Union and Moneygram transactional databases. In doing so, these three alleged offenders are alleged to have concealed the identity of fraudulent mass marketers, and the nature, location, source, ownership and control of the fraudulent proceeds from the victims, from Western Union, from Moneygram, and from the United States and Canadian treasury officials and law enforcement officials.
[7] The summary indicates that the government of the United States intends to prove its case at trial through testimony from an expert on international mass-marketing fraud and money laundering, as outlined in the ROC, through the introduction of business records obtained from Western Union and Moneygram, from testimony from fraud investigations and other officials at Moneygram and Western Union, from testimony from a fingerprint expert, from testimony from co-conspirators as specifically described at paras. 25 to 29 of the ROC, and from the testimony of particular fraud victims, as described in paragraphs 31 to 44 of the ROC.
The Governing Legal Principles
[8] The regime for the granting of judicial interim release to individuals in respect of whom extradition is sought under is set out in sections 18 and 19 of the Act. Paragraph 18 (1) (b) of the Act provides that the judge before whom a person is brought, pursuant to a warrant under section 16 of the Act, shall order the release or detention of that person. The onus lies on the Attorney General of Canada to demonstrate that the respondent is not entitled to judicial interim release. In this respect, the regime applicable under the Extradition Act largely mirrors that set out in the Criminal Code, since section 19 of the Act provides that Part XVI of the Criminal Code, which deals with judicial interim release in domestic proceedings, applies to the hearing that is required by paragraph 18 (1)(b) "with any modifications that the circumstances require".
[9] Section 515(10) of the Criminal Code spells out the only statutory grounds for the pre-trial detention of an accused. It states:
For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to the circumstances, including: (i) the apparent strength of the prosecution’s case; (ii) the gravity of the offence; (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used; and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
[10] However, this regime is modified and given a slightly more refined focus in extradition matters by the provisions of the Extradition Act as noted. As Marrocco J, now A.C.J. noted at paras. 4-5 of R. v. Mordi, 2010 ONSC 6666, [2010] O.J. No. 5204, the reasons of Justice Borins in United States of America v. Leibowitz, [1987] O.J. No.1505 (Dist. Ct.) show that one of the modifications that extradition circumstances may require and that is contemplated by the provisions of the Extradition Act is ensuring adherence by Canada to its international obligations in extradition proceedings.
[11] More recently, the decision in chambers of Low J.A. of the British Columbia Court of Appeal in United States of America v. Edwards, 2010 BCCA 149 at para. 18, highlights the importance of the first of the requirements under Canadian domestic law, but emphasizes it even further, noting that in an extradition hearing, "the court must look at the risk of non-appearance even more cautiously than might be the case in domestic proceedings." Accordingly, as Marrocco A.C.J. then observed, that kind of a cautious viewing of the risk of flight or nonappearance is plainly a modification that is required by the particular circumstances and nature of an extradition request.
[12] MacDonnell J. emphasized the same point in United States of America v. Ugoh, [2010] O.J. No. 6303, a case that is important in the context of this proceeding. It is important and relevant since the applicant whose extradition was at issue at that time, and who was seeking judicial interim release was one of two co-accused being sought for extradition, and Mr. Ugoh, one of the two whose release was at issue in the case, is the same individual who will allegedly give evidence at the U.S. proceedings against Mr. Obi in this case, should he be extradited. The ROC shows that he will testify essentially to the fact that Mr. Obi is one of the main characters, a central figure and organizer of the fraudulent arrangements embraced in this Western Union and Moneygram mass marketing scam and scheme, and that he is a so-called "general merchant of fraud", to use Mr. Ugoh’s words.
[13] Mr. Ugoh’s proposed testimony against Mr. Obi is set out at paragraphs 26 a. - p. of the ROC. I also note in passing that his co-accused on that extradition hearing was represented by Mr. Obi's present defence counsel on this hearing, and that Mr. Mordi who was the subject matter of the decision rendered by Marracco J, was also one of the alleged participants in this mass-marketing fraud.
[14] Indeed, it is instructive that of the cases included in the Crown’s book of authorities originally presented on this application, and excluding those related to electronic monitoring, except for two, all relate to different participants in this same Western Union and Moneygram based mass-marketing fraud: United States of America v. Mordi, above, where a recognizance of $1 million was required, United States of America v. Ugoh, above, a second decision in United States of America v. Ugoh, [2011] O.J. No. 6574 where MacDonnell J. also dismissed a second attempt by Mr. Ugoh to gain judicial interim release by the pledge of more than $1 million of surety, where again the focus was the issue of flight risk. On that second try, Mr. Cohen represented Mr. Ugoh but it was no more successful than the first. The other cases are Justice Spies decision in United States of America v. Akubueze, 2011 ONSC 6456 and Justice Kelly’s decision in United States of America v. Utomi, an unreported decision but where Crown counsel appeared, dated Friday, November 18, 2011. Some were granted release. Others were not. Not surprisingly, that determination largely fell to be made based on the particular circumstances attendant on each of the individual applicants.
[15] There were two other important points that emerge from Justice MacDonnell’s decisions in the two Ugoh cases. The first, as a practical matter, is that the prospective length of pre-hearing custody will factor into a decision on bail. And in circumstances like those present here, where the ROC is complete and the case can proceed to a committal hearing without delay, prehearing custodial detention is a less serious concern and the need to grant judicial interim release less severe since the proceeding itself can be conducted within a very short period of time.
[16] Indeed in this case, when counsel spoke to the trial coordinator at my request about when an extradition hearing could actually be held in this case, dates were offered in the next three weeks of July and in mid-August. When the matter was discussed with counsel when the hearing resumed after lunch, it was agreed that it would be set for a date in September in order to accommodate vacation plans and to ensure that both counsel, but particularly defence counsel who is only very recently retained, had adequate time to prepare appropriate materials for the committal hearing itself.
[17] The point, however, is that extradition hearings are meant to be dealt with expeditiously on the basis of the ROC provided by the foreign government and so they do not inherently have the same delay issues as are present in domestic cases, where the potential delay to a trial date can be a strong factor in favor of a grant of judicial interim release. On the other side of the same coin is the conclusion in the second of the two Ugoh cases that whether an order detaining a person in custody pending an extradition hearing should be set aside may also depend upon the proposed timing of the committal hearing itself: see also United States of America v. Pannell, [2005] O.J. No. 10 (C.A. Chambers) at para. 41.
The Personal Circumstances of the Accused
[18] Mr. Obi is 52 years of age. He was born on March 18, 1963 in Nigeria but became a permanent resident of Canada in the year 2000. He has been continually living in Canada as a permanent resident for the last 15 years. He resides at 88 Grandville Ave. in Toronto and has lived at that address for 17 years. He is married to Mary Sualim, and they have nine children, two of whom, Bilikus aged 29 and Halamat, aged 20, were also put forward as sureties in this matter on behalf of their father. All of the children are Canadian citizens with the exception of his son Ahmed, aged 23, and also excluding his wife Mary.
[19] One of the most important considerations relative to Mr. Obi, however, is his past criminal record. He acknowledges in his affidavit that he has a criminal record going back 20 years in the United States. Indeed that record seems related to the allegations that are now being made in this matter. At that time, in October 1995, he was convicted of fraud by wire and money laundering contrary to section 1343 of the United States Code, and was sentenced to 23 months of imprisonment. This case arose in New Jersey.
[20] Importantly, however, is the fact that at the time that he was convicted, he had entered into the United States from Nigeria with a visa that said his name was Suleman Ajuwuksualim. It was in that name that he was convicted and sentenced. He responded in cross-examination when asked about what his real name was and why he had used that other name, which I note is the name the U.S.A. thinks is his real name, that that was the name he used to gain an access visa to the United States because that was the name in which a visa was available. Nevertheless, he was insistent that his real name is Lucas Obi, not Suleman Ajuwuksualim as he represented himself to the U.S. Immigration Authorities at that time, or as the name under which he committed the earlier fraudulent acts and was tried, convicted and sentenced.
[21] Mr. Obi notes that Canadian Citizenship and Immigration has been aware of his criminal record in the United States, and that in 2004 inadmissibility proceedings were commenced against him due to his prior conviction, but that after a hearing at the Immigration and Refugee Board, he was granted a four-year stay of his removal due to humanitarian considerations. Mr. Obi says he complied with each and every term of the conditions that were imposed on him under the terms of that stay, and that after the end of the four-year probation period, Citizenship and Immigration Canada cancelled the removal order. He states that he then applied for Canadian citizenship, which is currently being litigated before the Federal Court of Canada. He continues to be required to report every month without fail to Canada Border Services Agency relative to his status as a landed immigrant and relative to the terms and conditions of the probationary stay. He would have violated that reporting condition last week, after being arrested on the warrant in this case, had he not called upon his counsel to speak to Canada Border Services to advise them of his change of circumstances.
The Release Plan
[22] The release plan in this case involves the pledge of a very significant amount of money, approximating three quarters of $1 million, from four distinct sureties, two of whom are his daughters as noted above, and two other individuals; one being the pastor of his church, and the other being a real estate agent who is a friend. The three principal sureties in terms of the amount of money being pledged are the pastor of his church, Mr. Duke Oliogu, his friend, Mr. Imonitie Esekie, and his daughter, Halamat. They have offered a letter of credit sureties secured on the equity of their homes or on savings in the amounts of $400,000, $150,000 and $200,000 respectively. The $200,000 pledge by Mr. Obi’s 20 year-old daughter, Halamat, is the amount of her personal savings. There was no evidence of the source of those monies, but she understood they would be tied up by a letter of credit and could be forfeited if bail was granted to her father and he breached the terms imposed. Finally, Mr. Obi’s 29 year-old daughter, Bilikus, who works for a bank, is willing to pledge a surety of $20,000 secured on her condominium residence in Mississauga.
[23] It is obvious that $770,000 is a very significant amount of money to be pledged by the sureties. There is no personal pledge by Mr. Obi because the value of his house is evidently fully absorbed by liens registered against it in favour of the Canada Revenue Agency, and his wife, Mary, is not offered as a surety because even though her extradition is not sought, she is a named agent who allegedly owned one of the paying agencies on behalf of her husband.
[24] As for the plan itself, each of the sureties testified and as Pastor Oliogu indicated, they have discussed the use of randomly timed texting and the requirement of Mr. Obi to respond absent in which he would be reported to the authorities. Beyond this, however, and Mr. Oliogu’s acknowledgment at paragraph 6 of his affidavit that being his surety means that he is responsible for his behavior once he is released from jail, until the extradition hearing is completed, and the acknowledgment of his daughters that it is their responsibility to prevent him from not attending court and from not complying strictly with the terms of his bail or committing an offence while on bail should he be released into their care as his sureties, there were no specific terms of release set out in any of the affidavits of the sureties.
[25] One question that arose is whether the sureties have the moral force and suasion to ensure that Mr. Obi would adhere to their directions as his sureties, particularly in the case of his two daughters. However, plainly all four trust him and believe that his commitment to his family is such that there is no need to be concerned that he presents a substantial risk to re-offend if granted release, notwithstanding that the present charges are effectively the second time he has been accused by the United States of engaging in the same fraudulent activity in the U.S. and against U.S. victims. I was surprised when Mr. Obi indicated in his cross-examination that “his daughters listen to him” and how, in those circumstances, it could reasonably be expected that he would listen to them, which is obviously what the plan of release requires, not the converse. Nevertheless, both his daughters were strong and firm in their evidence that they will have the moral force to cause him to adhere to the rules they establish because they are both adults, because they are pledging significant amounts as surety to support him, and because they were both unequivocal in their view and assessment that he would respect and abide by their direction of him as sureties.
Analysis and Conclusions
[26] Mr. Obi presently faces very serious criminal charges laid by the US authorities. In that regard, Crown counsel directed me to a letter dated July 2, 2015 from Mr. Peter J. Smith, the United States attorney for the Middle District of Pennsylvania addressed to Lisa Roberts of the Office of International Affairs at the United States Department of Justice in Washington D.C. concerning Mr. Obi. His stated purpose in writing is to provide additional information about Mr. Obi as a defendant in the Pennsylvania case given his request to be granted judicial interim release by this court.
[27] Defence counsel objects to the introduction of that letter or to me making reference to it in the context of this application for bail, but I disagree that it is inappropriate for it to at least be looked at, provided it is not given disproportionate weight. Indeed, in Mordi, at paragraph 8, Justice Marrocco specifically notes that the admissibility of such a letter is permitted by section 18(1)(b) in the course of considering the judicial interim release of the individual sought for extradition, because it is, in his view, a "modification that the circumstances require.” He noted, however, that a court considering such representations should only consider them where they are supported by documents or facts that are contained in the ROC itself, and referred to section 33 (2) of the Act and its indication that the ROC may include "other relevant documents." I would not make reference to that letter for pejorative purposes or to accept the comments made by the writer of the letter relative to his opinion of the severity of the charges that Mr. Obi presently faces in the United States, but two aspects of it are important, and are supported by the ROC.
[28] The first, when combined with Mr. Obi’s own evidence yesterday and that has importance, is that Mr. Obi accepted in his own testimony on his own affidavit that his conduct as a “fee pooler” in the 1995 and 1996 matters was not materially different from the allegations that he acted as a "check pooler" for at least nine other complicit Western Union or Moneygram agents in the facts of this fraud scam.
[29] Secondly, it notes that Mr. Obi has allegedly engaged in wide raging fraudulent activity over a very extended period of time, since it acknowledges that in 1995 he was convicted in the district of New Jersey and was deported following service of a sentence of incarceration even though at that time, he was convicted under the name of Suleman Ajuwuksualim, which the writer describes as "his real name" as confirmed by fingerprint identification.
[30] Similar to that earlier offence, in this present case in which the United States seeks his extradition, Mr. Obi is allegedly involved in a significant fraud scheme, where evidence consisting of Western Union and Moneygram documents, testimony from co-conspirators, victim testimony, and expert testimony allegedly results in a strong case for the prosecution. The letter notes that two similarly situated defendants were recently convicted and both faced very lengthy terms of incarceration of 180 months and 151 months respectively. Attorney Smith notes that Mr. Obi faces a similarly substantial sentence if he was to be convicted of the charges laid against him, and thus that the risk of flight must be considered to be paramount, and calls for his continuing detention.
[31] As the writer states, he has access to substantial quantities of cash, has significant overseas ties, and uses straw party names and alias identities. Those factors are alleged to present a significant risk of flight, a proposition fully supported by Ms. Krivel on behalf of the Attorney General of Canada for the United States government.
[32] While I am essentially content that the plan of release and the extensive sureties provided meets the secondary ground and could provide a foundation for Mr. Obi to be released on bail, and that the tertiary ground is not engaged, nevertheless the primary focus in my view on this application for judicial interim release must be on flight risk.
[33] I am obliged to give extra focus and caution in an extradition hearing to the risk of flight. That risk is highlighted in this case for several reasons. Mr. Obi is not a citizen of Canada. He is a permanent resident. It may be that deportation proceedings would be continued or re-activated against him by Canadian Immigration Authorities for his failure to fully disclose in a full true and open manner his prior circumstances at the time that he came to Canada. But more importantly, he now faces the prospect of being extradited to the United States where a reasonably strong case is about to be presented against him, a case that suggests that he is a central figure in the organization of the mass-marketing that is the focus of this matter, and that if convicted of the charges that are made against him by the United States, he will most likely face a very lengthy term of incarceration.
[34] To try to address the flight risk issue, I raised with both counsel the issue of electronic monitoring. Electronic monitoring has been raised in a number of other cases but several cases put forward by the Crown in response to my suggestion and discussion of the issue with counsel show that other judges have not been persuaded of the adequacy of electronic monitoring to ensure that an accused will comply with his obligations to appear before court, that is for satisfaction of the primary ground, because of the inherent frailties of the monitoring process itself: see for example, United States of America v. Ugoh, 2011 ONSC 1810, [2011] O.J. No. 1383, again in regard to the same Mr. Ugoh who is implicated here, and United States of America v. Pannell, 2005 22 (ON CA), [2004] O.J. No. 5715.
[35] Justice Trotter in Ugoh simply makes the point relative to electronic monitoring at paragraph 11 of his reasons:
On occasion, and in the Extradition context, judges have been presented with plans that involve privately retained, electronic monitoring firms. It has been recognized that, while evolving technology has made electronic monitoring more efficacious, it is not infallible. Electronic monitoring cannot prevent someone from bonding; it merely helps notify the authorities when the person has left: see United States of America v. Pennell and United States of America v. Khadr.
[36] While I observed with counsel that the technology used in electronic monitoring continues to evolve and seems now to be focused principally on GPS-based tracking which appears capable of providing greater certainty relative to the location of an accused person, Crown counsel then, at the end of the hearing, noted from discussions with one of her colleagues that in another extradition matter where release was recently denied by the Court of Appeal, R. v. X.Y, an anonymous and unreported matter, the Court of Appeal nevertheless reviewed the disclosure materials relative to electronic monitoring that are provided by Recovery Science Corporation with respect to its electronic monitoring program, and specifically notes at paragraphs 38 (a), (b), (c) and (g), that significant deficiencies remain and at root, that when a court determines that there is a risk that an accused individual may be determined to flee or offend despite the consequences, it cannot be assumed that monitoring with active alerts can guarantee a sufficiently timely intervention by police authorities to prevent the accused from fleeing.
[37] That is my fundamental concern in this case. I appreciate that this plan of release may be the best one that can realistically be put together for the accused at the present time, and again, I would emphasize that my remarks as to its suitability or adequacy are not meant to reflect negatively upon the proposed sureties, or others who may have offered their voluntary assistance.
[38] There is no release plan that is perfect. It is not about the perfection of the release plan, but rather the courts’ ability to have confidence that the accused does not present a risk of flight, that he can be trusted to abide by the plan at all times, whether within eyesight of his sureties or not, and whether supervised or not, and that the public’s sensibilities will not be offended if he is released.
[39] In this case, notwithstanding the sincerity of the plan and the best wishes of the sureties, I fear that the proposed sureties are putting themselves at risk in this plan.
[40] The core reason is simple. Mr. Obi is an individual who is previously operated under aliases. He obtained access to the United States initially using a visa and a name that was not his own I had no reluctance to do so, simply because that was the visa that was available to him at that time; presumably an illegal visa. Now he operates under what he claims is his own real name. But the fact that he has previously been convicted of committing offences that are virtually the same as those for which he is now charged, that the ROC appears on its face, obviously subject to the determination of the committal hearing judge, to present a strong case for extradition, leaves the real prospect facing him of extradition to the United States, and at least a realistic possibility of conviction and of being sentenced to a significant term of incarceration. I do not believe in those circumstances given his prior conduct, notwithstanding his compliance with Canadian immigration terms over the past years that he has been present in Canada, might not motivate him at this time, in light of the heightened risk it seems to me he now faces, to flee and be unable to be extradited to the United States if it is determined by the committal hearing judge that a warrant of committal ought to issue.
[41] Perhaps if this case were entirely in a domestic context, with a pledge of sureties of the amount that are present in this case, and with the plan of release that has been put forward by the sureties, the same concern would not be present about flight risk. But in this particular case, it is a significant concern. Further, it is a concern that is highlighted by the facility with which Mr. Obi appears to be able to operate under different identities, and that concern is exacerbated by the fact that this is an extradition proceeding where case law instructs me that I need to be particularly cautious about compliance with the primary ground in order to ensure that Canada can meet its international obligations to its treaty partners, such as the United States of America. As in Ugoh and R. v. Utomi, that is the compelling feature that is present here and that requires Mr. Obi to continue to be detained pending his extradition committal hearing.
Conclusion
[42] For these reasons, the application is dismissed. Mr. Obi will remain detained pending the committal hearing. For at least that time being, the detention order will remain in place.
M. G. Quigley, J.
Released: July 9, 2015
COURT FILE NO.: CR-1590000129-00MO
DATE: 20150709
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
LUCAS OBI
Applicant
REASONS FOR RULING Re: Application for Judicial Interim Release
M. G. Quigley, J.
Released: July 9, 2015