John v United States of America
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WILKIE,LORD JUSTICE PILL |
| Judgment Date | 21 December 2006 |
| Neutral Citation | [2006] EWHC 3512 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 December 2006 |
| Docket Number | CO/8639/2006 |
[2006] EWHC 3512 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Pill
Mr Justice Wilkie
CO/8639/2006
MR MARK SUMMERS (instructed by Tuckers) appeared on behalf of the CLAIMANT
MISS ADINA EZEKIEL (instructed by Crown Prosecution Service) appeared on behalf of the DEFENDANT
This is the appeal by Tolulope John against an extradition order made by District Judge Tubbs on 14 August 2006. His appeal is brought under section 103 of the Extradition Act 2003 (the 2003 Act) on the basis that the judge ought to have decided a question before her at the extradition hearing differently and that if she had decided the question in the way she ought to have done she would have been required to order the appellant's discharge (see section 104 (1) (a), (2) and (3) (a) and (b)).
The question at the core of this appeal is whether the appellant's extradition is barred by reason of the rule against double jeopardy in that he would be entitled to be discharged under a rule of law relating to previous acquittal or conviction if he were charged with the extradition offence in the part of the United Kingdom where the judge exercises her jurisdiction (see section 79 (1) (a), (2) and section 80 of the 2003 Act).
On 27 February 2006 a provisional warrant was issued for the arrest of the appellant on the basis that he was accused in a category 2 territory, namely the United States of America, of the commission of an offence, the conduct of which occurred in that territory which conduct would constitute an offence if it had occurred in England and Wales. The offence described in the provisional arrest warrant was that—
"between 1 January 1995 and 31 December 2005 in Virginia United States [the appellant] was in relation to certain goods namely 50 to 100 grams of raw heroin a controlled drug knowingly concerned in the fraudulent evasion of the prohibition in force with respect to importation of the said goods."
On 1 March 2006 the appellant appeared at Bow Street Magistrates' Court following his arrest pursuant to that provisional warrant. On 23 March 2006 the Secretary of State issued a certificate in accordance with section 70 of the 2003 Act certifying that the request was valid and had been made in the approved way. The extradition hearing took place between 27 July and 1 August 2006. On 14 August 2006, the district judge decided that the extradition was not barred by reason of the rule against double jeopardy and sent the case to the Secretary of State for a decision whether he should be extradited. On 5 October 2006 the Secretary of State ordered his extradition.
A number of affidavits have been sworn by the respondent in support of the extradition request. Exhibited to the first was an indictment dated 18 November 2005 filed in the United States District Court for the Eastern District of Virginia, Norfolk Division. That indictment, which contains the statement of the extradition offence, charged the appellant with eight counts. Count 1 was a conspiracy to distribute and possess with intent to distribute heroin and cocaine. Count 2 was a count of conspiracy to launder monetary instruments. Counts 3 to 8 were counts of laundering of monetary instruments.
By count 1 the grand jury charged that—
"from in or about 1995, the exact date to the grand jury being unknown, up to and continuing to the date of this indictment, in the Eastern District of Virginia and elsewhere, the defendants including the appellant ….. did unlawfully, knowingly and intentionally combine, conspire, confederate and agree together with each other and with other persons known and unknown to the grand jury to commit the following offences against the United States:
1. To knowingly, intentionally and unlawfully possess with the intent to distribute 1 kilogram or more of a mixture and substance containing a detectable amount of heroin, a Schedule 1 narcotic controlled substance in violation of title 21 United States code sections 841 (a) (1) and (b) (1) (A);
2 To knowingly, intentionally and unlawfully distribute 1 kilogram or more of a mixture and substance containing a detectable amount of heroin, a Schedule 1 narcotic controlled substance in violation of title 21 United States code sections 841 (a) (1) and (b) (1) (A);
3 To knowingly, intentionally and unlawfully possess with the intent to distribute 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine, a Schedule 2 narcotic controlled substance, in violation of title 21 United States code sections 841 (a) (1) and (b) (1) (A); and
4 To knowingly, intentionally and unlawfully distribute 5 kilograms or more of a mixture and substance containing a detectable amount of cocaine, a Schedule 2 narcotic and controlled substance, in violation of title 21 United States code section 841 (a) (1) and (b) (1) (A)."
The indictment then goes on under the heading "Ways, Manners and Means to Accomplish the Conspiracy" to state as follows—
"the purpose of the conspiracy was to make money in and through the distribution of heroin and cocaine. The Ways, Manners and Means by which that purpose was carried out included but were not limited to the following ….. "
There then appear over the next two pages eight paragraphs containing general descriptions of how the defendants sought to accomplish the conspiracy. There then appears under a heading "Overt Acts" the following:
"In furtherance of the conspiracy, and to accomplish the objects of the conspiracy, the following overt acts, among others, were committed in the Eastern District of Virginia and elsewhere ….. "
There then is set out 123 numbered paragraphs, setting out various overt acts, and concluding "(all in violation of title 21 United States code section 846)".
Within those 123 overt acts appear the following:
"1 On or about June 16 1995 at Chicago, Illinois Tolulope John possessed 2.2 grams of heroin with intent to distribute …..
26 On or about September 8 1999 at Chicago, Illinois Tolulope John, using the alias Adetokunbo Macarthy, a co-conspirator named 'Mike' and 'ID' took receipt of approximately $7,011 in drug proceeds from two individuals …..
33 On or about March 1 2000 at Chicago, Illinois Tolulope John, using the alias Adetokunbo Macarthy, a co-conspirator named 'Mike' and 'ID' and another co-conspirator distributed approximately 50 grams of raw (uncut) heroin, and possessed $3,724 in drug proceeds."
The question for the district judge was whether, either individually or collectively, these three matters constituted a bar by reason of the rule against double jeopardy.
The district judge made the following findings of fact in relation to each of these overt acts. Her findings of fact are not in dispute. They were as follows.
Overt Act 1:
"Tolulope John was arrested in Chicago, Illinois on 16 June 1995 for possession of 2.2 grams of heroin. He falsely identified himself as 'Femi T John' his brother's name, and the proceedings in 1995 were in that name. He was indicted for the offence, absconded and a warrant for his arrest was issued. In September 1999 he was arrested in pursuance of the warrant. He was arraigned and pleaded not guilty to the offence. He subsequently pleaded guilty and was sentenced to 24 months probation and community service. (He was subsequently charged with violating his probation. The probation violation is still outstanding.) It was the defence submission in relation to this conduct specified in this overt act 1 that the requesting government was intending to prosecute Mr John for precisely the same conduct. The government's stated aim, in the defence submission, was to use the conduct as an overt act so that it would not simply be relied upon to illustrate the defendant's use of an alias, his presence in Chicago during that period, and that he had connections with drug traffickers in that area during that time (as asserted in the affidavit of Darryl James Mitchell dated 30 June 2006). The conduct had already been before a court and a conviction and sentence imposed. The conduct and the circumstances remain the same and there was a significant overlap with count 1 in this extradition request. It was submitted that the defendant's extradition on that count was, therefore, barred on the basis of autrefois convict or, in the alternative, the matter should be stayed as an abuse of process."
Overt Act 26:
"Fingerprint evidence confirms that Tolulope John using the name Adetokunbo Macarthy, was arrested in Chicago on 8 September 1999 after police agents witnessed what they believed to be a drug transaction between two cars, one of which was an overdue rental car containing Mr John ….. (others) were also arrested. Money was seized at the time of the arrest and although trained dogs indicated that the money had come into contact with drugs, there is no suggestion that any drugs were found. Mr John was charged before the Cook County Court with theft of the car. He was not charged with any drug trafficking offences. The theft charge was 'stricken out without prejudice ….. akin to dismissal'. The defence submission notes that no information is provided as to why, having been arrested, charged and indicted on the theft charge, the allegation was 'stricken out'. The defence submit that the conduct described in the affidavits is sufficient to allow the court to find that there would be an abuse of process of court under section 80 of the 2003 Act even if the narrow autrefois ground is not made out."
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