Court File and Parties
COURT FILE NO.: CR-16-90000179 DATE: 20170317 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Attorney General of Canada On Behalf Of the United States of America – and – Osayi Edison Omoruyi, Respondent
Counsel: Adrienne Rice, for the Applicant/Requesting State Michael E. Webster, for the Respondent
HEARD: March 2, 2017
BEFORE: E.M. Morgan J.
Reasons for Judgment
[1] The United States of America seeks the extradition of Osayi Edison Omoruyi on charges relating to an international fraud investigation. The USA alleges that Mr. Omoruyi participated in a fraudulent scheme in which victims in the United States were induced by false representations to send funds to a bank or wire transfer facility in Lagos, Nigeria.
[2] The USA further alleges that Mr. Omoruyi received in Nigeria a number of wire transfers and postal money orders, and that these transfers and money orders represent funds traced to several fraud victims in the United States. The allegedly fraudulent scheme obtained funds amounting to a total of just under $500,000.
[3] Following the request by the USA, the Minister of Justice issued an Authority to Proceed which lists the relevant Canadian offence as possession of property obtained by crime, contrary to section 354 of the Criminal Code. The Attorney General of Canada now seeks a committal for prosecution section 29(1)(a) of the Extradition Act, SC 1999, c 18, which requires a hearing in order to determine whether there is evidence “of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence[s] set out in the authority to proceed.”
[4] The Attorney General has submitted a Record of the Case (ROC) and a Supplementary Record of the Case (SROC) which summarize the evidence and, as required by section 33(3)(b) of the Extradition Act, which certifies that the evidence is available and sufficient under the laws of the USA to justify prosecution.
I. The Evidence
[5] The ROC and SROC contain summaries of anticipated testimony from the United States Postal Inspector who investigated the fraud. The Postal Inspector will outline how victims in the United States were instructed to send to Mr. Omoruyi or his co-conspirators their own funds or funds from counterfeit money orders and bank cheques that had been received from co-conspirators in the fraud. In addition, the ROC and SROC contain summaries of the anticipated testimony of a number of victims of the scheme, who will testify as to how and where the inducements and money transfers took place. They also contain details of the bank and wire transfer records used in the scheme.
[6] The transactions uncovered by the U.S. investigation are relatively complex. They are summarized in two charts prepared by counsel for the Attorney General. The charts set out the transactions in which victims of fraud sent funds directly to Mr. Omoruyi, as well as transactions in which one of the participants and co-conspirators in the United States, Patricia Beavers, acted as middleperson and had the victims send their funds to her which she in turn forwarded to Mr. Omoruyi. These transactions are charted as follows:
Wire transfers traced from victims of fraud to Omoruyi
Victim Anticipated Victim Testimony Wire Transfer Record Connection to Omoruyi ROC Paras Chart Rows
A.L. In 2012 or 2013 she met, through a dating service, a person calling himself Justin Hampstead. He asked her to send money to help pay for his son’s health problems, which she did, sending approximately $4,000 to Patricia Beavers in Kentucky. A.L. also sent money to cover Hampstead’s alleged legal costs. A.L. learned when she attempted to meet with Hampstead in South Africa that she was likely the victim of an online romance scam. [1] 3 Western Union transfers between Feb. 8 and March 15, 2013 totaling $2,200 from A.L. to Patricia Beavers in Kentucky At least 5 MoneyGram transfers by A.L. totaling approximately $8,600 to persons in Nigeria during the same period, including about $6,300 to Samuel Arikawe On March 27, 2013 Patricia Beavers sent a MoneyGram transfer of $1,500 to Omoruyi. The sources of the $1,500 were Western Union transfers from victims totaling $3,440 sent between March 7 and 20, 2013 and included a transfer from A.L. to Beavers of $500 on March 8, 2013. A further transfer of $1,360 via MoneyGram on March 29, 2013 from Beavers to Omoruyi cites the foregoing victim transfers as the source of funds. 5, 6 17-19
J.D. In April 2013, she advertised a printer for sale for $600. She was contacted by a person who sent her a cheque for $2,000 to purchase the printer. He said the sum was a mistake and requested that J.D. keep $600 from the cheque and return the rest to Patricia Beavers in Kentucky, which she did. J.D.’s bank told her the cheque was counterfeit. Western Union transfer to Patricia Beavers of $1,400 from J.D. on April 18, 2013 On April 18, 2013, Patricia Beavers sent a MoneyGram transfer of $1,470.59 to Omoruyi in Lagos. One of the sources of the transfer was the April 18 transfer of J.D. to Beavers. 7, 8 20
B.C. In the summer of 2013 he received a job offer through the internet with a cheque. He deposited the cheque as instructed and sent a portion of the funds to a person in Princeton, Kentucky. He was told by his bank that the cheque was counterfeit and he owed it money for the transfer. Western Union transfer of $1,364 sent by B.C. to Patricia Beavers on June 21, 2013 (with minor adjustments in figures expected) The transfer from B.C. to Beavers is recorded as the source of the MoneyGram transfer of $1,200 from Beavers to Omoruyi on June 23, 2013. 9, 10 24, 25
S.B. In the summer of 2013 he received a job offer through Craigslist and a cheque. As instructed, he deposited the cheque and sent a portion of the funds to a person in Princeton, Kentucky. He was told by his bank that the cheque was counterfeit and he owed it money for the transfer. Western Union transfer of $1,360 sent by S.B. to Patricia Beavers on June 24, 2013 S.B.’s transfer to Patricia Beavers on June 24, 2013 is one of the sources for Beavers’ July 7, 2013 transfer of $1,190 to Omoruyi. 11, 12 27
M.C. In the summer of 2013 she received a job offer through Craigslist and a cheque. She deposited the cheque and sent a portion of the funds to a person in Princeton, Kentucky as told. She then learned from her bank that the cheque was counterfeit and she owed it money. Western Union transfer of $1,360 sent by M.C. to Patricia Beavers on July 2, 2013 (with minor adjustments in figures expected) On July 7, 2013 Patricia Beavers sent a MoneyGram transfer of $1,190 to Omoruyi. The sources of the $1,500 were a Western Union transfer of $1,344 from M.C. to Beavers on July 3, 2013 and the aforementioned transfer from S.B. on June 24, 2013. 13, 14 26, 27
T.M. From 2011-2013, T.M. sent over 50 MoneyGram transfers to persons as instructed by a man whom she had met over Facebook. T.M. believed she was assisting him with payment of his medical bills and tax for an inheritance he was to receive. As instructed by this person, T.M. sent about $50,000 of her own money and money sent to her by persons in the U.S. T.M. believed she would get her money back. MoneyGram transfers totaling approximately $40, 400 from T.M. to persons in the U.S. and to Samuel Arikawe and Omoruyi in Nigeria between June 29, 2011 and December 27, 2013 Western Union transfers of approximately $41,000 to persons in the U.S. and to Arikawe and Omoruyi in Nigeria between June 28, 2011 and May 20, 2014 Omoruyi received a MoneyGram transfer of $420 from T.M. Omoruyi received Western Union transfers of $950 and $1,400 from T.M. on July 2 & 15, 2011 Omoruyi received in total approximately $4,100 during June 28, 2011 to May 20, 2014 from T.M. via Western Union transfers. 17-21 1, 2, 14, 15
Wire transfers to/from Patricia Beavers traced to victims
Victim Anticipated Victim Testimony Wire Transfer Record ROC Paras Chart Row
T.J. On May 24, 2012, she responded to an ad on Craigslist for a personal assistant job and was contacted by a man who said he would send her cheques to get started. She received a cheque that she deposited into her account as instructed and then wired money to Patricia Beavers in Kentucky. T.J.’s bank told her the cheque was counterfeit and she had to pay the loss. MoneyGram transfer of $1,014 sent by T.J. to Patricia Beavers in Kentucky on May 24, 2012 3, 4 10
A.H. She posted her home entertainment unit for sale on Craigslist. She received a cheque from an interested person who told her to deposit it, keep the amount for the unit and then transfer the rest to Patricia Beavers in Princeton, Kentucky, whom she believed would arrange for shipping. On July 17, 2013, A.H. transferred approximately $1,240 as told. A.H. learned the cheque she deposited was counterfeit. Western Union transfer of $1,129 sent by A.H. to Patricia Beavers in Princeton, Kentucky on July 17, 2013 15, 16
S.M. In May 2012, S.M. responded to an ad on Craigslist for a job as a personal assistant. As part of this job, she received 2 cheques that she cashed and, as instructed, sent wire transfers via MoneyGram to Patricia Beavers in Princeton, Kentucky. S.M. lost about $3,000. [2] May 17, 2012 MoneyGram transfer of $1,298.50 sent by S.M. to Patricia Beavers in Kentucky May 19, 2012 MoneyGram transfer of $1,298.50 sent by S.M. to Patricia Beavers in Kentucky (with minor adjustments in figures expected) 22, 23 7-9
S.R. In 2012, S.R. applied for a job through Craigslist. As part of her duties, she mailed cheques for clients. S.R. began to suspect her job was not legitimate because all her work communications were online and she was paid by wire transfer, sent by an unknown person. Upon receipt of a credit card in her name and instruction to use the card to purchase merchandise, S.R. decided to quit the job. May 5, 2012 MoneyGram transfer of $300 from Patricia Beavers to S.R. 24, 25 6
[7] In response to this substantial amount of evidence, the defense makes a number of arguments. First, defense counsel submits that identification of Mr. Omoruyi is an issue, and that it is not clear that the police have arrested the same person as the U.S. authorities were investigating. He points out that although the Nigerian bank where much of the funds were sent did require that the person retrieving the money present proper identification, and the ROC contains a photocopy of the I.D. page in Mr. Omoruyi’s Canadian passport that was provided to the U.S. investigator by the bank, the picture is blurred and the features of the person pictured in the passport cannot be made out.
[8] Second, defense counsel points out that there is no way to identify money; it is fungible. Counsel for the defense observes that funds transferred to Mr. Omoruyi from Ms. Beavers may or may not be related to the frauds under investigation. He submits that there is no way to tell. As counsel puts it, Ms. Beavers could be sending money to Mr. Omoruyi for any number of legitimate reasons, and there is nothing to say that the funds she sends to him are the very funds that the fraud victims sent to her.
[9] The fact that the photo on Mr. Omoruyi’s passport is too blurred to properly discern the face does not present an insurmountable difficulty in terms of identification of the Respondent. The print is legible, and it clearly indicates the name Osayi Edison Omoruyi, with the birth date of November 15, 1989. That is Mr. Omoruyi’s proper name and correct birth date. The booking photograph is also in the ROC, which is not only clear and identifies Mr. Omoruyi visually, but also contains the same full name and birth date. I do not know whether Osayi Edison Omoruyi is a common or an unusual name in Nigerian society, but the fact the holder of the passport and the person on the booking photo (and in the courtroom before me) have the identical first, middle, and family name as well as the same birth date makes for a rather large coincidence. Even if Osayi Omoruyi is the Nigerian equivalent of “John Smith”, it would be rather remarkable to find two John Edison Smiths with the identical birth date in Canada.
[10] Likewise, the fact that Ms. Beavers’ money transfers do not come with a full explanation as to what the funds relate to is not a real impediment to the reliability of wire transfers. As the chart shows, on four separate occasions Ms. Beavers sent funds to Nigeria and Mr. Omoruyi collected them within a day of their having been sent. The amounts collected by Mr. Omoruyi were each time slightly less than the amounts transferred by Ms. Beavers, suggesting that Ms. Beavers took a small portion of the victims’ funds as a commission for herself and forwarded the balance to Mr. Omoruyi. It would again be quite a remarkable coincidence if Mr. Beavers were sending Mr. Omoruyi the precise amounts, minus commission, that she received from victims of fraud. Moreover, the charts show six other occasions that fraud victims in the United States were instructed to, and did, transfer funds directly to Mr. Omoruyi without using Ms. Beavers as a middleperson. Mr. Omoruyi collected those funds at the bank or at a Western Union or other money transfer centre in Nigeria.
II. The role of extradition judge
[11] The Supreme Court of Canada has observed that, “Extradition is primarily a function of the executive branch of government and a product of international agreements between States”: United States of America v Kwok, 2001 SCC 18, [2001] 1 SCR 532, at para 27. The Minister of Justice is responsible for treaty relations and makes the ultimate decision as to whether to surrender the person sought to the foreign State extradition partner: McVey v United States of America, [1992] 3 SCR 475, at paras 53, 107. The extradition judge, on the other hand, has a relatively limited function.
[12] My role is to provide a “screening function”. That is, as extradition judge, I am “simply to decide whether [I] am satisfied that the person before the court is the person sought and whether ‘there is evidence admissible under the [Extradition Act and available for trial] of conduct that, had it occurred in Canada, would justify committal for trial…”: MM v United States of America, 2015 SCC 62, [2015] 3 SCR 973, at para 36. I am not to consider foreign law or foreign jurisdiction, United States of America v Kavaratzis (2004), 182 CCC (3d) 176, at para 20 (Ont CA), and am not to consider any substantive defenses or otherwise convert the extradition proceeding into a form of trial: USA v MM, at para 64.
[13] The only time in which a departure from the relatively low test for sufficiency of evidence is called for at this kind of hearing is where concerns about the reliability of the evidence are substantial enough to prompt the outright rejection of the evidence: United States of America v Anderson (2007), 85 OR (3d) 380, at para 30 (Ont CA). That is certainly not the case here. There is a significant quantity of evidence, albeit for the most part circumstantial, from which a trier of fact could reasonably infer guilt. Indeed, even “where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered”: R v Arcuri, [2001] 2 SCR 828, at paras 29-30.
[14] Since the extradition hearing is supposed to be an efficient one, it requires a “flexible, non-technical approach”: United States of America v Ferras, 2006 SCC 33, [2006] 2 SCR 77, at para 21. Accordingly, the documents contained in the ROC and SROC are presumptively admissible under section 32(1) of the Extradition Act. The evidence gathered by the U.S. authorities and summarized in the record before me is admissible; as Rosenberg JA put it in United States of America v Yang (2001), 56 OR (3d) 52, at paras 51-52 (Ont CA), “[i]t is not for this country to assume that it alone knows how to arrive at a true verdict.”
[15] As indicated above, Mr. Omoruyi is to be tried in the United States for the equivalent of the Canadian offence of possession of property obtained by crime. Under section 354(1) of the Criminal Code, this offence is aimed at a person who receives property despite knowing it to have been acquired illicitly: R v Daoust, 2004 SCC 6, [2004] 1 SCR 217.
[16] The ROC and SROC contain admissible evidence that the person who collected the wire transfers of funds sent by Patricia Beavers was Mr. Omoruyi, that the victims in the United States were induced to send these funds via wire transfer by false representations, that Patricia Beavers is associated with and was receiving instructions from one Justin Hampstead who also instructed Mr. Omoruyi, that Western Union and MoneyGram transfers went from the victims to Ms. Beavers and then to Mr. Omoruyi, and that a number of direct transfers went from fraud victims to Mr. Omoruyi via MoneyGram and Western Union. All of this evidence supports a prima facie case that Mr. Omoruyi possessed money obtained by or derived from an indictable offence.
[17] In addition, the evidence in the ROC and SROC establishes the identity of Mr. Omoruyi as the person who possessed the wire transfers derived from fraud and whose extradition is sought by the United States. The passport obtained by the bank in Lagos, Nigeria contains the name Osayi Edison Omoruyi, born November 15, 2017. The booking photo taken by the police upon Mr. Omoruyi’s arrest is the same person as the person before the court.
[18] There is evidence available for trial on all of the essential elements of the offence for which he is sought. Based on the material in the record before me, a jury properly instructed could convict Mr. Omoruyi of the parallel Canadian offence. The test for committal is therefore met.
III. Disposition
[19] Mr. Omoruyi is committed into custody pursuant to section 29 of the Extradition Act, to await surrender for the offence set out in the Authority to Proceed.
Morgan, J. Released: March 17, 2017
Court Information (Repeated)
COURT FILE NO.: CR-16-90000179 DATE: 20170317 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Attorney General of Canada On Behalf Of the United States of America – and – Osayi Edison Omoruyi, Respondent
REASONS FOR JUDGMENT E.M. Morgan, J. Released: March 17, 2017
Footnotes
[1] Justin Hampstead was identified by Beavers as complicit in the scheme in an interview with U.S. investigators on April 1, 2014, see SROC, para 1.
[2] According to Beavers’ interview, she was instructed by a person called Justin Hampstead to send S.M.’s transfers to Samuel Arikawe in Nigeria. Emails from the account Justin_hampstead@yahoo.com contain instructions for sending and receiving transfers, including S.M.’s, see SROC para.1. Arikawe is identified as a participant in the fraud, see ROC, para 29.