CITATION: The United States of America. v. Nuez, 2017 ONSC 4519

COURT FILE NO.: CR-16-90000339-00M0

DATE: 20170811

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 29 OF THE EXTRADITION ACT, S.C. 1999, c. 18, FOR AN ORDER COMMITTING AMIR GHAHREMANPOUR, CAMERON NASRI, and RYAN NUEZ TO AWAIT THE MINISTER’S DECISION ON WHETHER THEY SHOULD BE SURRENDERED TO THE UNITED STATES OF AMERICA

BETWEEN:

THE ATTORNEY GENERAL OF CANADA on behalf of the UNITED STATES OF AMERICA

– and –

AMIR GHAHREMANPOUR, CAMERON NASRI, and RYAN NUEZ

Respondents

E. Kirvel, for the Attorney General of Canada

C. Mainville, for Mr. Nasri

R. Golec, for Mr. Ghahremanpour

D. Sarikaya, for Mr. Nuez

HEARD: June 30, 2017

justice nakatsuru:

[1] The United States of America seeks the extradition of the three respondents on fraud related offences. Mr. Nasri consented in writing to his surrender. I thereby order his committal to await surrender.

[2] Mr. Ghahremanpour and Mr. Nuez have argued against committal. Mr. Ghahremanpour is sought on fraud. Mr. Nuez is sought on an attempted fraud.

A. THE LEGAL TEST

[3] Section 29(1) of the Extradition Act S.C. 1999, c. 18 sets out the test for committal of a person sought for prosecution in a foreign state. I must determine: (1) if there is any evidence that would support committal on the Canadian offence described in the authority to proceed; and (2) that the person before me is the person sought by the extradition partner. Both Mr. Ghahremanpour and Mr. Nuez admit that they are the persons that the United States of America seeks.

[4] The extradition hearing judge serves a limited but important screening role. I am most familiar with the test at a preliminary inquiry. I have done many. However, the extradition judge at the committal phase has evolved given the Extradition Act and the Charter. The relevant difference to a preliminary inquiry judge’s role is that I can engage in a limited weighing of the evidence to determine if there is a plausible case. If I conclude that the evidence is so defective or unreliable, it would be dangerous or unsafe to convict, I will not commit: See U.S.A. v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77 at paras. 40, 47-90; M.M. v. U.S.A., 2015 SCC 62, [2015] 3 S.C.R. 973 at para. 40.

[5] In M.M. v. U.S.A. the Supreme Court of Canada approved of the restrained approach to the assessment of reliability at paras. 71-72:

In particular, I largely agree with the interpretation of Ferras given by Doherty J.A. writing for the court in United States of America v. Anderson, 2007 ONCA 84, 85 O.R. (3d) 380, at paras. 28-31. Ferras "does not envision weighing competing inferences that may arise from the evidence", other than in the limited sense noted in Arcuri of considering that the inferences sought to be drawn from circumstantial evidence are reasonable: Anderson, at para. 28. Ferras does not contemplate that the extradition judge will decide whether a witness is credible or his or her evidence is reliable beyond determining that the evidence is not "so defective" or "so unreliable" that it should not be given any weight: Anderson, para. 30. Ferras does not call upon the extradition judge to evaluate the relative strength of the case put forward by the requesting state. There is no power to deny extradition simply because the case appears to the extradition judge to be weak or unlikely to succeed at trial. Ferras requires the extradition judge, however, to remove evidence from consideration that appears to the judge to be "so defective" or "so unreliable" that it should be disregarded. This may be the result of problems inherent in the evidence itself, problems that undermine the credibility or reliability of the source of the evidence, or a combination of those two factors.

I also agree with Doherty J.A. that "it is only where the concerns with respect to the reliability of the evidence, whatever the source or sources, are sufficiently powerful to justify the complete rejection of the evidence, that these concerns become germane to the s. 29(1)(a) inquiry": Anderson, at para. 30. The extradition judge's starting point is that the certified evidence is presumptively reliable: see Ferras, at paras. 52-56. This presumption may only be rebutted by evidence showing "fundamental inadequacies or frailties in the material relied on by the requesting state": Anderson, at para. 31.

B. OVERVIEW OF THE REQUESTING STATE’S EVIDENCE

[6] In the Record of the Case (“ROC”), the United States has described the evidence available. This is a brief summary. The prosecution alleges a scheme whereby a group of co-conspirators go to retail stores of a major technology company and fraudulently get computer, cellphones, or related goods. The scheme allegedly goes like this. Two persons go into the store. One poses as a customer. The other as a friend. They select a number of expensive items to buy. The retail store does not have regular check-out lines. Rather, the store employee who works on the floor of the store uses a handheld device to complete the transaction. The customer presents a credit card to buy the items. When the employee hands the device back to the customer to complete the transaction, for example by inputting a PIN, the friend distracts the employee. The customer then changes the transaction from a credit card transaction to a cash one. He does this by flipping the device over and using the screen that normally is reserved for use by the sales associate. The customer inputs that cash has been paid. The employee does not know this. When the device is returned to the employee, it shows the purchase has been completed. The customer and friend then leave the store with the goods. The sales associate is none the wiser. Sometimes other co-conspirators are there to act as look-outs or to block the cash till from opening when the transaction type is changed.

[7] The evidence available comes from three sources. The first source is Pierre Auguste, a supervisor of the loss prevention department of the company. He describes how merchandise transactions are normally done at the stores. He also has identified 80 transactions at stores in the United States where a transaction was initiated as a credit card payment but the record ultimately shows that cash was paid. This is from March 1 to October 17, 2016. Mr. Auguste describes the above noted fraudulent scheme after reviewing store video footage of 80 transactions which depicts that scheme.

[8] The second source is a witness who was charged as a defendant but is now cooperating with the prosecution in hopes of leniency. This witness confirms the above described scheme to defraud the company. This cooperating witness remains anonymous but his identity will be revealed to the defence before trial. He participated in the scheme along with a Mr. Sadykov on numerous occasions. He will describe the structure and organization of the conspiracy involved. Mr. Sadykov played a leading role. This witness states that the other members of the conspiracy included Mr. Ghahremanpour, Mr. Nasri, and Mr. Nuez who participated together with the witness in the scheme and are also his social acquaintances. The members of the conspiracy did not have fixed roles but would alternate roles as needed.

[9] The final source is New York City Police Detective Daniel Herzog. He reviewed the video footage from the company and compared the footage with known photographs of the alleged conspirators including Mr. Ghahremanpour and Mr. Nuez. Detective Herzog identified specific instances on the video footage in which he states the conspirators directly participated in the scheme. He gives examples of specific dates and describes what each video shows. He concludes by stating that video footage from March 10 to September 25, 2016, shows Mr. Ghahremanpour personally participating in the above described scheme at at least 10 times at different locations in the United States. The transaction records that correspond to the fraudulent transactions had a collective value of $74,694.83. For the same time period, the video footage from the company shows Mr. Nuez personally participating in the above described scheme at at least 10 times at different locations. The transaction records that correspond to the fraudulent transactions had a collective value of $26,925.92.

C. AMIR GHAHREMANPOUR

[10] Mr. Ghahremanpour makes two arguments. First, he submits that there is insufficient evidence that Mr. Ghahremanpour is the man that is identified to be him in the alleged fraudulent transactions. Second, he submits that on the whole of the evidence, it would be unsafe to convict him on fraud given the insufficient evidence of both the actus reus and the mens rea of fraud.

[11] I do not accept these arguments.

[12] Dealing with the first argument, a photograph of Mr. Ghahremanpour is attached to the certified ROC of the Assistant United States Attorney David Denton. Exhibit B of the affidavit is the photograph. When I look at the color photograph that was actually attached as Exhibit B, now marked as Exhibit 5 at this extradition hearing, I find that a reasonable jury properly instructed could find that this photograph is the respondent, Mr. Ghahremanpour, by comparing the photograph to the person before the court. The photograph is a full frontal shot of good quality. The ROC prepared by Mr. Denton states that the cooperating witness has viewed the photograph attached as Exhibit B and that this depicts the Mr. Ghahremanpour who was involved in the fraudulent scheme against the technology company. The cooperating witness’s source of knowledge of Mr. Ghahremanpour comes from the fact he participated with him in the scheme and the fact Mr. Ghahremanpour is a social acquaintance. Detective Herzog then reviewed the video footage from the stores. He compared that to known photographs of the defendants including Mr. Ghahremanpour. This included Exhibit B, the photograph of Mr. Ghahremanpour attached to the ROC. Based on these comparisons, Detective Herzog identified specific instances where Mr. Ghahremanpour participated in the scheme. One such instance that related to Mr. Ghahremanpour was the video footage on April 5, 2016 which showed Mr. Ghahremanpour with Mr. Sadykov obtaining $6,976.29 of merchandise from the store.

[13] In my view, the circle of identification is complete. First the cooperating witness personally knows Mr. Ghahremanpour and identifies a photo of him. Then Detective Herzog uses that same photograph and compares it to video footage taken from the store on April 5, 2016, and identifies one of the persons participating in the scheme that day to be Mr. Ghahremanpour. Detective Herzog also identifies Mr. Ghahremanpour in at least 10 other locations in the United States participating in the scheme.

[14] While the specific details of the circumstances of how the cooperating witness was shown the photograph are not revealed, this does not make this evidence manifestly unreliable. The witness knew Mr. Ghahremanpour. From that knowledge, he was able to identify a photograph. On its face, there is nothing suspect about this evidence. The detective made comparisons using photographs including the one the witness identified and was able to identify the respondent in a video footage of the store. While again few details are provided about the exact nature of the video reviewed or the process in which the officer conducted this comparison, there is nothing inherently unreliable about that evidence. The source material used in the comparison is identified. The officer compared the images as he was entitled to do. I find that this constitutes prima facie evidence of Mr. Ghahremanpour being the man involved in the alleged fraud transaction of April 5, 2016: See U.S.A. v. Asiegbu (2008), 2008 BCCA 519, 243 C.C.C. (3d) 88 (B.C.C.A.) at paras. 21-22. While a trial may uncover deficiencies in the process or the evidence of identification, an extradition hearing is not Mr. Ghahremanpour’s trial. The issues raised by the respondent are the “stuff trials are made of.”

[15] The second argument raised is that no reasonable jury properly instructed in law could find Mr. Ghahremanpour guilty of fraud beyond a reasonable doubt based on the contents of the ROC. It is submitted that on April 5, 2016, no reasonable jury could find that he participated in the scheme with Mr. Sadykov. On that day, Mr. Ghahremanpour acted only passively. It is submitted that it would be unreasonable to conclude that he was involved.

[16] I disagree. In my opinion, a reasonable jury properly instructed could find the respondent guilty of fraud beyond a reasonable doubt. I agree that a person cannot be committed for surrender based simply on statement that the police suspected Mr. Ghahremanpour of an offence: See U.S.A. v. Yang (2001), 2001 CanLII 20937 (ON CA), 157 C.C.C. (3d) 225 at para. 63. Indeed, the paragraph that simply states that the video footage showed Mr. Ghahremanpour personally participated in the fraudulent scheme at at least 10 times at different company locations comes close to that. This is so devoid of detail that it is merely an opinion of the detective. It would be hard to rely upon this alone to justify committal for surrender.

[17] However, the April 5, 2016, incident has considerably more detail. The video footage of that day is said to show Mr. Sadykov playing the role of a fake customer while Mr. Ghahremanpour played the role of the friend. It is Mr. Ghahremanpour who initiated the sale with the sales associate. But it was Mr. Sadykov who tendered the payment card and used the device. From this, it can be reasonably inferred that both were participating in the purchase and that Mr. Sadykov was not buying the merchandise alone. This is further supported by the fact each carried a bag of merchandise out of the store. It is true that it was Mr. Sadykov who took and manipulated the device to obtain the merchandise fraudulently. It is also true that all Mr. Ghahremanpour appeared to have done was to turn toward the sales associate while Mr. Sadykov moved in close behind Mr. Ghahremanpour’s back to be shielded from view. In my opinion, this provides a reasonably detailed summary of the evidence that will be led against the respondent at trial. It is not manifestly unreliable due to a lack of specificity.

[18] More to the point, the respondent argues that an inference of guilt beyond a reasonable doubt could not reasonably be drawn from this. Where an inference is based upon circumstantial evidence, a limited weighing is permitted: See R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. It is submitted an inference of guilt beyond a reasonable doubt based upon such ambiguous conduct by Mr. Ghahremanpour would be unreasonable.

[19] If this stood alone, the respondent may well have a good point. But it does not stand alone. The whole of the evidence must be considered. This includes the evidence of Mr. Auguste regarding a number of transactions committed over a few months that involve a similar scheme of fraud directed against the retail stores of the major tech company. In addition to this, while devoid of detail, Detective Herzog did see the respondent attend at the retail stores of this company at a number of locations when fraudulent transactions were conducted. Even without giving this evidence much if any probative weight, it will still be a remarkable coincidence that Mr. Ghahremanpour was present those number of times. In addition, there is the evidence of the cooperating witness. Firstly, he states he personally participated in such frauds with Mr. Sadykov. He also confirms the scheme as described by Mr. Auguste. At trial, the jury would then have this evidence to provide some context to the actions taken by Mr. Ghahremanpour on April 5, 2016. Mr. Sadykov is present making a purchase. He is said to play a leading role in the conspiracy. The purchase is fraudulent. At the moment Mr. Sadykov manipulates the device, Mr. Ghahremanpour is talking to the sales associate. This is consistent with the fraudulent scheme that is described by the witnesses. Given the whole of the evidence, the jury would reasonably be entitled to infer that Mr. Ghahremanpour was a party to the fraud; that he acted in the role of the distracting friend. The arguments made by the respondent that what Mr. Ghahremanpour did was dissimilar to the roles or actions played on other occasions by the distracting friend are matters that a jury should consider in determining the ultimate question of guilt. Finally, the cooperating witness gives direct evidence that Mr. Ghahremanpour is a member of the conspiracy that commits these frauds against the company.

[20] While it is conceivable that Mr. Ghahremanpour was an innocent dupe or did not participate in the scheme on April 5, 2016 while Mr. Sadykov acted alone, there remains a reasonable if not powerful inference based on the whole of the evidence that he and Mr. Sadykov acted in concert in committing the fraud. It is not my role to choose between competing inferences.

[21] In weighing the evidence, I find that it remains a reasonable inference that a jury could draw that Mr. Ghahremanpour was a party to the fraud. Finally, I find the evidence to be sufficiently reliable such that a committal to surrender should be ordered. There is sufficient evidence that a reasonable jury properly instructed could find Mr. Ghahremanpour guilty beyond a reasonable doubt of fraud.

[22] As a result, I order Mr. Ghahremanpour to be committed for surrender on the charge of fraud.

D. RYAN NUEZ

[23] The allegation against Mr. Nuez is attempted fraud. In my opinion, based upon this record, the prosecution case against him is weaker than that against Mr. Ghahremanpour. However, this conclusion is not an impediment to committal.

[24] The structure of the certified ROC is similar to that against Mr. Ghahremanpour. The sources are the same. The cooperating witness identifies Mr. Nuez as a member of the conspiracy. Detective Herzog identifies an example of Mr. Nuez’s participation from a March 25, 2016 video footage at a company store. Finally, Detective Herzog states that video footage shows Mr. Nuez personally participating in the fraudulent scheme at at least 10 different locations in the United States.

[25] Mr. Nuez points to a number of deficiencies in the ROC. While he agrees that the evidence must be viewed as a whole, he dissects each source to illustrate their deficiencies. I agree as I have in the case of Mr. Ghahremanpour that the statement of Detective Herzog showing Mr. Nuez’s personal participation at 10 or more different locations should attract little probative weight. I also agree that though the cooperating witness does identify Mr. Nuez to be a member of the conspiracy, he is not shown a photograph of Mr. Nuez. I do not agree however with the respondent’s argument that the ROC states that the cooperating witness only knows Mr. Nuez as a charged defendant in the conspiracy. The only reasonable interpretation of the ROC is that the cooperating witness knows Mr. Nuez to be a member of the conspiracy as well as knowing him socially. It states that Mr. Nuez and the others participated together along with the cooperating witness in the scheme.

[26] Much depends upon the weight to be attributed to the video footage of March 25, 2016. It shows Mr. Nuez playing the role of the friend while a Mr. Miguel Bahadur served as the fake customer. The respondent argues that Mr. Bahadur is never identified by the cooperating witness to be a member of the charged conspiracy. While this is true, the video footage on another occasion shows Mr. Bahadur participating in the scheme. Mr. Bahadur is an indicted co-conspirator. On March 15, 2016, Mr. Sadykov played the role of the friend and Mr. Bahadur played the fake customer. Another person played the role of the blocker. Thus, from this evidence, a jury could reasonably find that Mr. Bahadur was a member of the conspiracy and not just an innocent purchaser of goods on March 25, 2016. This conclusion is reasonably available to be drawn on the evidence despite the cooperating witness not identifying Mr. Bahadur as a member of the conspiracy.

[27] On March 25, 2016, Mr. Nuez and Mr. Bahadur entered the store together and attempted to engage in a transaction with the sales associate. The associate handed Mr. Bahadur the device. He then turned away from the sales associate while Mr. Nuez attempted to engage the sales associate in conversation. However, Mr. Bahadur was unable to alter the payment method on the device. Therefore the transaction record showed that $4,218.91 worth of merchandise was initially processed for purchase but the transaction was not completed. In my opinion, this evidence is not manifestly unreliable due to the lack of detail. The evidence comes from video footage. It describes what takes place during the transaction. While the minutiae of the acts of those depicted are not fully described, that is a matter for trial.

[28] As essentially conceded by counsel at the hearing, the issue here is whether accepting this evidence, could a reasonable jury properly instructed make a reasonable inference that Mr. Nuez was a party or principal to an attempted fraud. Standing alone, looking at the video footage, this would seem to be no more than evidence of an incomplete purchase. Standing alone, it would be unreasonable to infer that those involved were attempting to defraud the company. However, again, I must look at the evidence as a whole. Just like in the case of Mr. Ghahremanpour. The evidence of Mr. Auguste and the cooperating witness will give context to the actions seen on the videotape. Mr. Bahadur was involved in another fraudulent transaction with Mr. Sadykov playing similar roles described as the scheme. There are other videos of Mr. Nuez being present in the company’s store when fraudulent transactions take place. The testimony of the cooperating witness’ evidence that Mr. Nuez is a member of the conspiracy must be considered. True, there is a potential weakness in the identification of Mr. Nuez by this witness. However, it remains some evidence the jury will have. Looked at in its entirety, a reasonable jury could conclude that Mr. Nuez along with Mr. Bahadur were attempting to defraud the company. Their target is the same as in the numerous other alleged fraudulent transactions. They were trying to buy expensive computer equipment. The roles played by each follow the roles played by the conspirators in the scheme as described. The video footage shows Mr. Bahadur being unable to alter the payment method on the device. While the details of what was seen on the video footage supporting this conclusion are not fully described in the record, nonetheless, a video camera is capable of capturing this action. Whether it actually did or not is again a matter for the trier of fact to determine.

[29] At the end of the day, when looked at collectively, and apply the test that I must, I find that the applicant has met that test. Based upon the ROC, I find that a reasonable jury properly instructed in law could find Mr. Nuez guilty of attempted fraud beyond a reasonable doubt having assessed the evidence in the manner permitted by Ferras.

[30] As a result, I order Mr. Nuez to be committed for surrender on the charge of attempted fraud.

Justice S. Nakatsuru

Released: August 11, 2017

CITATION: The United States of America. v. Nuez, 2017 ONSC 4519

COURT FILE NO.: CR-16-90000339-00M0

DATE: 20170811

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 29 OF THE EXTRADITION ACT, S.C. 1999, c. 18, FOR AN ORDER COMMITTING AMIR GHAHREMANPOUR, CAMERON NASRI, and RYAN NUEZ TO AWAIT THE MINISTER’S DECISION ON WHETHER THEY SHOULD BE SURRENDERED TO THE UNITED STATES OF AMERICA

BETWEEN:

THE ATTORNEY GENERAL OF CANADA on behalf of the UNITED STATES OF AMERICA

– and –

AMIR GHAHREMANPOUR, CAMERON NASRI, and RYAN NUEZ

Respondents

REASONS FOR JUDGMENT

NAKATSURU J.

Released: August 11, 2017