CITATION: The Attorney General of Canada v. Nuradin et al., 2015 ONSC 6032

COURT FILE NO.: 14-90000047

DATE: 20151006

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an Application pursuant to section 29 of the Extradition Act for orders committing IDRIS NURADIN and HABONE GAYAD to await the Minister’s decision on whether they should be surrendered to the United States of America

B E T W E E N:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Requesting State

– and –

IDRIS NURADIN and HABONE GAYAD Persons Sought for Extradition

Nancy Dennison, Counsel for the Attorney General of Canada

HEARD: September 23, 2015

DUNNET J. (Orally):

REASONS FOR JUDGMENT ON COMMITTAL HEARING

OVERVIEW

[1] The Minister of Justice has issued an authority to proceed (“ATP”) pursuant to s. 15 of the Extradition Act, S.C. 1999, c.18 seeking an order for the committal for extradition of Idris Nuradin and Habone Gayad who are sought for prosecution by the United States of America (“United States”) for defrauding victims in that jurisdiction through a telemarketing fraud scheme.

[2] Section 29(1) (a) of the Act provides that a judge shall order the committal of the persons sought into custody to await surrender if there is evidence admissible under the Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the ATP, and if the judge is satisfied that the persons are the persons sought by the extradition partner.

[3] The ATP states that the Canadian offence which corresponds to the alleged conduct is fraud, contrary to s. 380 of the Criminal Code.

[4] The evidence available to the United States is described in the Record of the Case (“ROC”), which is certified by Assistant United States Attorney Ellyn Marcus Lindsay for the Central District of California. The certification confirms that the evidence contained in the ROC is available for trial and is sufficient to justify prosecution under the laws of the United States.

THE ALLEGATIONS

Overview of the Scheme

[5] Nuradin and Gayad are alleged to have operated a telemarketing fraud scheme from December 2008 to August 2009 involving counterfeit cheques totaling approximately $1.5 million U.S.

[6] Without authorization, they used the name of a legitimate company, Manpower, to conduct a secret shopper scam. They mailed letters to victims in the United States that contained counterfeit or fraudulent cheques made out in the victims’ names. The letters falsely represented that the victims had been selected to represent the company as mystery shoppers responsible for evaluating the quality of customer service of certain businesses by acting as customers.

[7] The letters instructed the victims to call Manpower’s “assignment coordinators” who advised them that the cheques enclosed with the letters were to fund certain training tasks and to provide the victims with a salary. They directed the victims to cash the cheques to purchase an item and transfer funds so that the victims, in their roles as mystery shoppers, could evaluate the efficiency and effectiveness of Wal-Mart/MoneyGram outlets. The victims were to provide the MoneyGram transaction numbers to Nuradin and Gayad and others working with them who would retrieve the money from the MoneyGram system.

[8] After the victims transferred the funds, the victims’ banks determined that the cheques were fraudulent and reversed the deposits by debiting the victims’ accounts in the amount of the cheques. None of the victims received any money or other thing of value from Nuradin or Gayad.

The Investigation

[9] The evidence described in the ROC is that on April 5, 2009, Don Keeley, superintendent of 61 Town Centre Court in Toronto, was advised by a security guard that at 12:40 a.m., the resident of apartment 1201 had made three trips to the garbage area and filled the garbage bin with 11 extra-large garbage bags that appeared to contain recycling material.

[10] Pursuant to the apartment complex’s normal practice of seizing and searching suspect material to ensure that recycling is not disposed of as garbage, Keeley searched the garbage bags and discovered approximately 70 cheques from a company named Warner B.P., blank cheque envelopes, self-adhesive empty stamp cards, latex gloves and discarded mail addressed to Nuradin and Gayad, the tenants of apartment 1201.

[11] On July 3, 2009, Nuradin and Gayad moved to apartment 1604 in the same complex and signed a lease in their names.

[12] On July 25, 2009, Keeley seized additional garbage that had been thrown out by the tenant of apartment 1604, including approximately 70 cheques with the same cheque number addressed to different people in the United States, misprinted cheques and large amounts of bank cheque stock. Keeley notified the police.

[13] Detective Constable Peter Rallis of the Toronto Police Service found the following items in the garbage bags seized on April 5, 2009:

• Bank of America cheques in the amounts of $2985 and $3985 with the company name “Warner B.P.” in Burbank, California, addressed to different payees in the United States;
• several blank pages of cheque stock;
• latex gloves;
• documents containing the names Idris Nuradin and Habone Gayad and the address, 61 Town Centre Court, apartment 1201;
• a secret shopper letter with the name “Manpower” on the letterhead, the address “1000 Manpower Place, Milwaukee, Wisconsin” and the telephone number “416-389-0705”;
• a blank secret shopper survey questionnaire for an evaluation of Wal-Mart and MoneyGram, including a space for the MoneyGram transaction reference number, and the number “810-483-6838” where the survey was to be faxed; and
• a United Parcel Service invoice, dated March 10, 2009, addressed to Sean Williams in Brampton, Ontario with the item described as “blank cheque paper” and the shipper listed as “Compuchecks” in New York.

[14] On July 29, 2009, Rallis searched the garbage bags seized by Keeley on July 25, 2009 and found:

• cheque envelopes with sticker labels containing printed names of residents in the United States;
• sheets of stickers containing printed names of residents in the United States;
• forty-six cheques with the same Bank of America account number as those found in the garbage bags seized in April 2009, ending with the same digit “8242” and made out in the amount of $2985 or $3985 with the names of payees in the United States;
• cheque stock; and
• latex gloves.

[15] On August 7, 2009, Rallis obtained a search warrant for 61 Town Centre Court, apartment 1604. The search yielded the following items:

• boxes and stacks of secret shopper letters with the Manpower heading listing the address, 1000 Manpower Place, Milwaukee, Wisconsin, with telephone numbers matching those identified by various victims, including the number “647-209-6502” listed on Manpower letters received by the victims Don Holland and Vanessa Garcia;
• boxes of letters, blank survey forms and cheques folded into envelopes ready to be mailed;
• sales scripts describing details of the mystery shopper scheme to be communicated to the victims, including where the cheques were to be cashed, the amounts of the MoneyGram transfers, and to whom the transfers were to be sent;
• blank secret shopper survey questionnaires similar to those provided to the victims, including questionnaires that listed the fax number “810-483-6838,” which was used by the victim Antonio Salas;
• numerous Bank of America cheques, dated July 23 and July 29, 2009, in the amount of $3985, listing the company name Warner B.P., addressed to individuals in the United States;
• MoneyGram documentation;
• blank cheque stock;
• latex gloves;
• two Royal Bank of Canada Visa credit cards in the name of Sean Williams;
• computer containing photographs of Nuradin and Gayad; cheque templates and scanned cheques from different companies; lead lists containing approximately 500,000 names, addresses, emails and telephone numbers of residents in the United States; copies of business logos such as JC Penney and T.J. Maxx that appeared on the mystery shopper letters; completed secret shopper survey questionnaires listing the fax number “810-483-6838” and fax cover sheets with dates in March and June 2009, from numerous individuals enclosing MoneyGram receipts in differing amounts.
• cellular telephone with a call log that included the number “416-908-1091” listed on Manpower letters received by victims of the scheme.

[16] Kevin Kraft, Director of Investigations at Warner Bros. Entertainment Inc., confirmed that the cheques found in the garbage bags were counterfeit, as the account number belonged to Warner Bros. Entertainment Inc. Kraft learned that beginning in April 2009, cheques had been cashed throughout the United States by victims of the secret shopper scheme. Some of the letters that accompanied the counterfeit cheques were written on Manpower letterhead listing the telephone numbers “647-218-2578,” “647-268-5059” and “416-908-1091.” A log of counterfeit cheques that were cashed contained approximately 390 victims.

[17] Tina Reyes, who is employed by Frost National Bank Loss Prevention, reviewed copies of cheques drawn on the bank that several victims received with their Manpower letters, including Holland and Garcia. Reyes confirmed that the cheques were counterfeit, as the account number belonged to a company in Texas called Speakwrite.

[18] Sarah Ross, an investigator with the Royal Bank of Canada, is expected to testify that when Gayad was an employee of the bank in March 2008, she created a fictitious profile for “Sean Williams,” entered a false social insurance number and approved and issued two Visa credit cards in that name.

The Victims

[19] The ROC describes the expected testimony of several victims who are resident in California.

[20] In June 2009, Antonio Salas received a letter signed by Stephen Greene on Manpower letterhead with the address, P.O. Box 2053, Milwaukee WI, 53201-2053. Salas received a counterfeit cheque for $3975 and sent a MoneyGram wire transfer in the amount of $3665 to Melton, Ontario. Salas completed the secret shopper survey questionnaire and faxed it to 810-483-6838, the same fax number listed on the blank secret shopper survey questionnaire found in the garbage and in the apartment of Nuradin and Gayad.

[21] In February 2009, Andrea Ponce received a letter signed by Stephen Greene on Manpower letterhead with the address, P.O. Box 2053, Milwaukee WI, 53201-2053. Ponce received two counterfeit cheques in the amount of $2975 and $4975 and sent a MoneyGram transfer in the amount of $2671.57 to Toronto, Ontario.

[22] In August 2009, Beatrice White received a letter on Manpower letterhead and a counterfeit cheque in the amount of $3985 drawn on a Warner B.P. account at the Bank of America. White sent a MoneyGram transfer in the amount of $3660 to Niagara Falls, Ontario.

[23] In May 2009, Don Holland received a letter signed by J.F. Stewart on Manpower letterhead with the address, 1000 Manpower Place, Milwaukee WI. The letter contained the telephone number “647-209-6502,” which is the telephone number listed on the mystery shopper letters found in the apartment of Nuradin and Gayad. Holland received a counterfeit cheque in the amount of $3985 drawn on the account of S.W. at the Frost National Bank.

[24] In June 2009, Vanessa Garcia received a letter with Canadian postage signed by J.F. Stewart on Manpower letterhead with an address in Milwaukee WI. The letter contained the telephone number “647-209-6502,” which is the telephone number listed on the mystery shopper letters found in the apartment of Nuradin and Gayad. Garcia received a counterfeit cheque in the amount of $3985 drawn on the account of S.W. at Frost National Bank. She sent a MoneyGram transfer in the amount of $3660 to Kingston, Ontario.

PRIOR RELATED PROCEEDINGS

Canadian Criminal Charges

[25] Following the execution of the search warrant at the apartment of Nuradin and Gayad on August 7, 2009, they were charged with the Canadian offence of fraud and were granted bail. On June 16, 2011, the charges were withdrawn.

First Extradition Request

[26] On October 17, 2011, the Minister of Justice issued an ATP for the extradition of Nuradin and Gayad to face charges in the United States equivalent to the Canadian offence of fraud.

[27] An arrest warrant was issued on December 9, 2011. They were arrested on December 13, 2011, and were granted bail.

[28] Between December 2011 and April 2012, the extradition proceedings were remanded in court because they were in the process of trying to obtain legal aid.

[29] The extradition hearing was set for June 7, 2012, and ordered to proceed “with or without counsel.” The hearing was adjourned in order to deal with Gayad’s Rowbotham application and the hearing was rescheduled to November 1, 2012.

[30] On June 15, 2012, The Minister of Justice withdrew the ATP pursuant to s. 23(3) of the Extradition Act.

Mutual Legal Assistance Proceedings

[31] On October 11, 2011, the United States sent a request to obtain the original documents that were seized from the apartment of Nuradin and Gayad. On October 21, 2011, the Attorney General of Ontario received authority from the Minister of Justice to apply to have the documents sent to the United States.

[32] On April 12, 2012, counsel for the Attorney General of Ontario brought an application pursuant to s. 490 of the Criminal Code for the forfeiture of the property that was seized from the apartment in order to send it to the United States to be used as evidence.

[33] On July 20, 2012, counsel for the Attorney General of Ontario advised counsel for Nuradin and Gayad that the forfeiture application had been withdrawn and that the Attorney General of Ontario would proceed to obtain a gathering order for the seized property. On July 24, 2012, the gathering order was granted ex parte and Nuradin and Gayad were given notice of the application for a sending order.

[34] At the sending order proceedings, counsel assisting Gayad brought an application naming the Attorney General of Canada as a party to the hearing and seeking relief pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms.

[35] The Attorney General of Canada brought an application to be removed as a named party and to strike certain grounds of relief from the notice of application. On December 17, 2012, the Attorney General of Canada’s application was granted. (The Attorney General of Ontario v. Gayad and Nuradin, 2012 ONSC 7201)

[36] Nuradin and Gayad did not pursue their allegations of abuse of process and on March 26, 2013, O’Marra J. ordered the material to be sent to the United States for use in their investigation.

The Second Extradition Request

[37] On December 31, 2013, the United States certified an extradition request for Nuradin and Gayad. The ROC explained that at the time the first ROC was certified, Assistant United States Attorney General Lindsay had copies of the evidence in his possession. In paragraph one of the ROC, it states:

Pursuant to United States’ law, copies are admissible at trial in lieu of originals. However, it is preferable to have originals for use at trial, as the jury prefers to see the actual documents and evidence present at the scene of the crime. Therefore, an MLAT was sent to Canada in order to obtain the original documents and to prevent victim information, along with other evidence, from being returned to the defendants.

[38] On January 29, 2014, the Minister of Justice issued an ATP and Nuradin and Gayad surrendered to the court on February 26, 2014.

[39] Between February 26 and October 6, 2014, the proceedings were remanded in court, as Nuradin and Gayad were in the process of trying to obtain legal aid. Ultimately, their applications and appeals were denied.

[40] A Rowbotham application was scheduled for February 9, 2015, but it was not perfected in time. The application proceeded on April 24, 2015, and was dismissed by Code J.

[41] At the outset of the extradition hearing on July 8, 2015, Nuradin and Gayad brought an application before this court to challenge the search warrant executed on August 7, 2009, and to stay the proceedings for abuse of process. On July 17, 2015, their application was dismissed.

THE POSITION OF NURADIN AND GAYAD

[42] Nuradin and Gayad again seek to challenge the search warrant pursuant to which documents relied on in the ROC were seized from their apartment on August 7, 2009.

[43] They submit that the Information to Obtain the Search Warrant incorrectly identifies the woman observed on security camera footage filling the garbage bin with bags as the resident of apartment 1201. They assert that the woman in still photographs taken from the security camera videotape is not Gayad. They also dispute the number of bags depicted in the photographs. It is their position, therefore, that neither the justice who issued the search warrant, nor this court can be certain that the garbage belonged to Nuradin and Gayad.

[44] They contend that none of the documents or items found in the garbage or in their apartment demonstrate that they were in communication with the alleged fraud or the victims. Further, they assert that telephone and fax numbers contained in the ROC do not connect them to the victims.

[45] They deny, for example, that the telephone number 416-389-0705, which was included on the letters sent to some of the victims, was on Manpower letterhead found in the garbage. I note, however, that the ROC, at paragraph 6(b)(vi), states that a secret shopper letter with Manpower letterhead observed by Rallis when he searched the garbage seized on April 5, 2009, contained the telephone number 416-389-0705.

[46] Nuradin and Gayad also submit that they have no knowledge of the number 810-483-6838, which was referred to in the ROC as the fax number that was found in the garbage on the blank secret shopper survey questionnaire, and which was the number Salas used to fax his completed questionnaire.

[47] Gayad also asserted that she did not open a bank account or approve credit cards for a person named Sean Williams.

ANALYSIS

[48] Under s. 29(1) of the Extradition Act, the court’s dual statutory task is to determine whether there is evidence admissible under the Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada for the offence of fraud; and whether the court is satisfied that Nuradin and Gayad are the persons sought by the extradition partner.

[49] In Argentina [Republic] v. Mellino, 1987 49 (SCC), [1987] 1 S.C.R. 536, at para. 29, the Supreme Court of Canada held that the jurisdiction of the extradition judge is statutory and limited:

…the role of the extradition judge is a modest one; absent express statutory or treaty authorization, the sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed.

[50] In United States of America v. Thomlison, 2007 ONCA 42, at para. 47, Moldaver J.A., as he then was, underscored the judge’s limited role in assessing the evidence:

To summarize, I am satisfied that if there is some evidence that is available for trial and not manifestly unreliable on every essential element of the Canadian crime upon which a jury, properly instructed, could convict, the test for committal will have been met. In that regard, it matters not whether the case against the person sought is “weak” or whether the prospect for conviction “unlikely”. The ultimate question of guilt or innocence is for the trial court in the foreign jurisdiction.

[51] In Germany v. Schreiber, [2000] O.J. No. 2618, at para. 57, Watt J., as he then was, cautioned that an extradition hearing is not a trial. After reviewing various decisions of the Supreme Court of Canada, he stated:

These authorities make it clear that extradition is to be and remain an expedited process to ensure prompt compliance with Canada’s international obligations that our statute and treaties reflect. These authorities, and others like them, remind extradition hearing judges that the hearing is not a trial, nor should it be allowed to become a trial, as though it were a domestic criminal proceeding. It is not simply a matter of degree. There is a difference in kind between an extradition hearing and the trial of a domestic criminal case.

[52] In that regard, ss. 32 and 33 of the Extradition Act establish an evidentiary regime quite different from the rules of evidence applicable in domestic criminal proceedings. Any evidence aimed at contradicting or providing a defence to the evidence adduced by the requesting state is inadmissible as irrelevant, since an extradition judge has no authority to weigh the evidence presented and to decide issues of credibility or draw competing inferences. (United States of America v. Anderson, 2007 ONCA 84, at para. 28)

[53] In the ROC, it states that Keeley is expected to testify at trial that the resident of apartment 1201 filled the garbage bin with bags that appeared to be recycling material, contrary to the rules of the apartment complex. The still photographs taken from the security camera videotape are neither clear, nor decisive on the issue of the identity of the woman or the number of bags thrown into the bin. In my opinion, the photographs relied on by Nuradin and Gayad are incapable of rendering the evidence manifestly unreliable. In any event, it is a matter for the trial court in the foreign jurisdiction.

[54] Moreover, there is no air of reality to the argument that the search warrant was invalid or in violation of Nuradin and Gayad’s Charter rights. The issue has previously been argued without success and there was nothing in their submissions to warrant revisiting the matter. There were more than sufficient grounds to obtain the search warrant based on the information contained in the garbage.

[55] The actus reus of fraud is established by evidence of:

(i) a prohibited act, be it an act of deceit, a falsehood or some other fraudulent means; and

(ii) deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk.

[56] The mens rea of fraud is established by evidence of :

(i) subjective knowledge of the prohibited act; and

(ii) subjective knowledge that the prohibited act could have as a consequence the deprivation of another, including knowledge that the victim’s pecuniary interests are put at risk. (R. v. Théroux, 1993 134 (SCC), [1993] 2 S.C.R. 5, at para. 27)

[57] The evidence of the victims demonstrates that false representations were made to them about their employment as customer service evaluators. They were induced to believe that the cheques accompanying the letters they received, and made payable to them, were real and should be used to perform their purported employment tasks, which included sending money to recipients by wire transfer. As a consequence of the false representation, the victims cashed the counterfeit cheques and forwarded, as directed, funds to the recipients.

[58] As a result of the deception, the victims suffered deprivation when the banks looked to them for reimbursement of the banks’ payments on the counterfeit cheques.

[59] In all the circumstances, I am satisfied that there is evidence available for trial on the essential elements of the Canadian crime of fraud upon which a jury, properly instructed, could convict. There is evidence that was found in Nuradin and Gayad’s garbage linking them to the initial deception and the subsequent deprivation of the victims. Accordingly, the evidence is sufficient to justify their committal for extradition for the offence of fraud.

[60] Although the material seized during the execution of the search warrant provides further evidence establishing their involvement in the fraudulent scheme, it is not necessary, in my view, to justify their committal.

[61] The ROC states that Rallis participated in the search of the apartment where a lease in the names of Nuradin and Gayad was found. Rallis will testify that when he walked into the bedroom during the search, Nuradin and Gayad were in bed together. Their photographs were located throughout the apartment, including on the computer and cellular telephones. Rallis will also testify that he is familiar with their appearance from his observations during the investigation and from the photographs attached to the ROC as exhibits.

[62] Idris Nuradin is described as 6 feet 2 inches tall, weighing approximately 200 pounds, with brown eyes, black hair and a birthdate of May 25, 1981. Habone Gayad is described as 5 feet 7 inches tall, weighing 130 pounds, with brown eyes, brown hair and a birthdate of November 11, 1982.

[63] Both Nuradin and Gayad made oral submissions on the committal hearing. I am satisfied on a balance of probabilities that a comparison of the persons before the court and the photographs in the ROC demonstrates that they are the same persons who are sought for prosecution by the United States.

DISPOSITION

[64] There will be an order committing Nuradin and Gayad into custody to await surrender for the offence of fraud.

DUNNET J.

Released: October 6, 2015

CITATION: The Attorney General of Canada v. Nuradin et al., 2015 ONSC 6032

COURT FILE NO.: 14-90000047

DATE: 20151006

ONTARIO

SUPERIOR COURT OF JUSTICE

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Requesting State

– and –

IDRIS NURADIN and HABONE GAYAD Persons Sought for Extradition

REASONS FOR JUDGMENT ON COMMITTAL HEARING

DUNNET J.

Released: October 6, 2015