Evers Gonzalez Lazo v Government of the United States of America
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cavanagh |
| Judgment Date | 13 June 2022 |
| Neutral Citation | [2022] EWHC 1438 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3960/202 |
[2022] EWHC 1438 (Admin)
Mr Justice Cavanagh
Case No: CO/3960/202
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Fitzgerald QC and David Ball (instructed by H.P. Gower Solicitors) for the Appellant
Richard Evans (instructed by Extradition Unit, Crown Prosecution Service) for the Respondent
Hearing date: 25 May 2022
Approved Judgment
This is the Appellant's appeal against the decision of District Judge (Magistrates' Court) Tempia, dated 2 September 2020, to send the Appellant's case to the Secretary of State for a decision whether the Appellant should be extradited to the United States, pursuant to section 87 of the Extradition Act 2003. Following the District Judge's decision, the Secretary of State ordered the Appellant's extradition to the United States on 13 October 2020.
Permission to appeal was refused on the papers by Saini J on 9 February 2021, but was granted at a renewal hearing on 21 April 2021 by Lane J, limited to one ground of appeal.
The sole ground of appeal now pursued is that the District Judge was wrong to send the Appellant's case to the Secretary of State because the arrest warrant issued by the United States District Court for the Middle District of Florida was defective as it was issued by a court clerk, rather than a judge, as is required by the Federal Rules of Criminal Procedure (“the Rules”). The Appellant submits that the District Judge was required to satisfy herself to the criminal standard that the arrest warrant was valid and that, on the basis of the material before her, she was wrong to be so satisfied. Even if, contrary to the Appellant's primary case, the burden rested with the Appellant to show, on the basis of facts that are clear beyond legitimate dispute, that the arrest warrant was satisfied, the Appellant submits that this test is satisfied.
The Respondent accepts that, in order to be valid, an arrest warrant issued by a U.S. District Court must have been issued by a judge, but contends that the District Judge was right to find that the Appellant's arrest warrant was valid. The Respondent also contends that it was not necessary for the District Judge to satisfy herself to the criminal standard, or to any standard of proof, that the arrest warrant was valid: all the District Judge had to do was to satisfy herself that there was an arrest warrant. The Respondent submits that it is for a Requested Person to advance an argument, if so advised, that the arrest warrant is invalid, and that the Requested Person should do so by challenging the arrest warrant under the abuse of process jurisdiction. The Respondent further submits that the District Judge should only find an arrest warrant to be invalid, and so that extradition is an abuse of process, if the true facts that demonstrate that the warrant is invalid are clear beyond legitimate dispute. The Respondent contends, however, that even if the District Judge needs to be satisfied to the criminal standard that the arrest warrant was satisfied, that requirement was met in the present case.
In an application notice dated 23 November 2021, the Respondent applied to rely upon additional evidence in the form of a letter, dated 8 November 2021, from Randall Leonard, Assistant U.S. Attorney, acting on behalf of Karin Hoppmann, Acting U.S. Attorney for the Middle District of Florida, and a very short law report in the case of United States v Light, United States District Court, MD Florida, Tampa Division, dated 3 December 2012. This application was based upon the power of the court to admit fresh evidence under its inherent jurisdiction. The Appellant does not oppose the admission of this fresh evidence, but contends that, when considering the weight to be given to this evidence, the Court should bear in mind that Mr Leonard is not an independent expert, but an attorney in the employ of the prosecuting authority. The Appellant also says that, if the evidence is admitted, the court should also admit as fresh evidence a Second Supplemental Report dated 26 April 2022, prepared by the Appellant's expert in U.S. law, Peter Goldberger Esq, an attorney based in Ardmore, Pennsylvania, which comments on the contents of Mr Leonard's letter.
I am satisfied that I should admit and take account of the fresh evidence, both in the form of the letter from Mr Leonard dated 8 November 2021, and Mr Goldberger's Second Supplementary Report. The requirements that must be complied with in order for fresh evidence to be relied upon by a Requested Person on appeal, namely that the evidence was not available at the extradition hearing and would have resulted in a question being decided differently by the District Judge (see Extradition Act 2003, section 27, and Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin)), do not apply where it is the Respondent which seeks to rely on fresh evidence. In such cases, the Court has a wide power, under the inherent jurisdiction of the High Court, to admit such evidence, though this does not mean that there is carte blanche to admit fresh evidence on behalf of the Respondent in all circumstances ( FK v Germany, [2017] EWHC 2160 (Admin), paragraph 31). This power is a broad one and the central question is whether it is in the interests of justice to admit the evidence. It is plainly in the interests of justice to admit Mr Leonard's letter, especially as it is not opposed by the Appellant. Given that Mr Goldberger's Second Supplementary Report addresses Mr Leonard's fresh evidence, it in in the interests of justice also to admit and take account of this report.
It follows that I must determine the following issues:
(1) How should a District Judge approach the validity of an arrest warrant?: is it for the District Judge to satisfy herself to the criminal standard in each case that the arrest warrant is valid, or must the requested party persuade the District Judge that, on the basis of clear facts which are beyond legitimate dispute, the arrest warrant is defective and so that it would be an abuse of process to continue with the extradition proceedings?; and
(2) Applying the correct approach, was the District Judge wrong to decide that the arrest warrant was not defective and so to send the Appellant's case to the Secretary of State for a decision?
The Appellant has been represented before me by Mr Edward Fitzgerald QC and Mr David Ball, and the Respondent by Mr Richard Evans. I am very grateful for counsel's submissions, both oral and in writing, which have been of a very high standard.
I will first summarise the relevant facts and will set out the relevant statutory provisions. I will then summarise the reasoning of District Judge Tempia on this issue, before dealing with the two issues in turn.
The facts
The Appellant is a Honduran national. The Respondent alleges that from June 2016 to August 2016 the Appellant participated in drug trafficking activities that included “a conspiracy to transport large quantities of narcotics, specifically methamphetamine and cocaine, from the State of Texas to the State of Florida”.
On 13 March 2018 a grand jury in Tampa, Florida, returned a 5-count indictment charging 3 co-conspirators with drug distribution-related offences. 6. On 15 August 2018 a grand jury in Tampa returned a 5-count superseding indictment which added the Appellant as a defendant to the charges in the original indictment.
On the same day, 15 August 2018, a warrant was issued for the Appellant's arrest. The warrant took the form of a pro forma document, with spaces for information and a signature to be added to the document at appropriate places. The warrant was headed “United States District Court for the Middle District of Florida.” The warrant said, “To: any authorised law enforcement officer. YOU ARE COMMANDED to bring before a United States magistrates judge without unnecessary delay EVER GONZALEZ LAZO”. The warrant was signed in manuscript by a person named Lisa Silvia, above a line stating “Issuing Officer's Signature”. Beneath that were printed the words “ELIZABETH WARREN, Clerk, United States District Court”, above a line stating “Printed name and title”.
It is undisputed, on the evidence, that Ms Silvia is the supervisory deputy clerk of the U.S. District Court for the Middle District of Florida and that Elizabeth Warren is the Clerk of the District Court. The arrest warrant did not state in terms that it was issued by order of a federal judge or give the name of an issuing judge.
The letter of Mr Leonard dated 8 November 2021 explained the process which is followed in the U.S. District Court when indictments are laid and arrest warrants are issued. He said:
“Prosecutors present cases to the grand jury. The grand jurors vote in secret on whether to indict the defendant, to return what is known as a “true bill”. At the conclusion of the last case presented to the grand jury on any given day, a prosecutor will escort the grand jury foreperson to meet a federal magistrate judge. The judge will swear in the foreperson; review the indictments; and upon finding no technical or other errors, order the issuance of arrest warrants, unless some other court process is requested by the prosecutor. In the Middle District of Florida, where Lazo was indicted, this process occurs daily, three times per week. Lazo was indicated as part of this process, which has gone on largely unchanged for decades.”
In his Second Supplementary Report, Mr Goldberger said that the description of this process was “entirely credible as a general matter.” It follows that no issue arises as to whether I should place less weight on this part of Mr Leonard's evidence than I would if he were not an...
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Mr A v Deputy General Public Prosecutor of the Lyon Court of Appeal
...of its position, the Respondent relies upon the observation of Cavanagh J in Lazo v Government of the United States of America [2022] EWHC 1438 (Admin), [2022] 1 WLR 4673 that “the starting point in extradition cases, both Part 1 and Part 2 cases, is that unless the contrary is establishe......