Tesler v Government of the United States of America

JurisdictionEngland & Wales
JudgeLord Justice Pill,Mr Justice Roderick Evans
Judgment Date20 January 2011
Neutral Citation[2011] EWHC 52 (Admin)
Date20 January 2011
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/6345/2010,Case No: CO/6345/2010

[2011] EWHC 52 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Before: Lord Justice Pill

And

Mr Justice Roderick Evans

Case No: CO/6345/2010

Between
Jeffrey Tesler
Appellant
and
Government Of The United States Of America
Respondent

Hugo Keith QC (instructed by Lucas McMullan Jacobs) for the Appellant

David Perry QC and Melanie Cumberland (instructed by CPS) for the Respondent

Hearing dates: 2 & 3 December 2010

Lord Justice Pill

Lord Justice Pill :

1

This is an appeal by Mr Jeffrey Tesler ("the appellant") a dual British and Israeli national aged 62, under section 103 of the Extradition Act 2003 ("the 2003 Act"). The Government of the United States of America ("the Government") has requested the appellant's extradition. He is accused in the United States of conspiring to violate the Foreign Corrupt Practices Act 1977 ("FCPA") and aiding and abetting violations of the Act. District Judge Tubbs rejected submissions made on behalf of the appellant and, in accordance with section 87(3) of the 2003 Act, sent the case to the Secretary of State for a decision whether the appellant is to be extradited.

2

On 17 February 2009, an indictment against the appellant was filed in the United States District Court in the Southern District of Texas, Houston Division, and a warrant was issued for the appellant's arrest. The extradition proceedings are governed by Part 2 of the 2003 Act. The extradition request was issued by the Government on 1 May 2009 and on 5 May 2009 the Secretary of State issued a certificate in accordance with section 70 of the 2003 Act certifying that the request is valid and had been made in the approved way.

3

The hearing took place before the District Judge on a number of days in November and December 2009 and January 2010. The appellant did not give oral evidence but submitted a defence statement and an addendum. Statements were submitted by his solicitor, Mr Jacobs, and an expert witness Mr J McCormick Webster III, who also gave oral evidence. The District Judge handed down her ruling on 25 March 2010. On 24 May 2010, the Secretary of State ordered the appellant's extradition to the United States pursuant to section 93(4) of the 2003 Act.

4

The District Judge set out the basic facts:

"In brief summary the Defendant is alleged to have participated in a scheme to bribe Nigerian Government officials to assist an international joint venture consortium (made up of 4 global engineering companies, each incorporated in a different country, one of which was incorporated in the USA) to win an ostensibly competitive international tender to procure and thereafter to retain contacts to construct liquefied national gas production facilities on Bonny Island in Nigeria. The conduct occurred between August 1994 and June 2004. The amount of money paid in bribes to Nigerian Government Officials was around US$132 million. The value of the 4 contracts procured by means of the corrupt scheme was more than US$6 Billion. The TSKJ Joint Venture, referred to above, was formed in 1991 with the purpose of bidding on and, if successful, carrying out the Bonny Island Project. The 4 companies constituting the Joint Venture were:

(i) the MW Kellogg Company and its successor company Kellogg, Brown and Root Inc (collectively referred to as 'KBR'). KBR was incorporated in Delaware and its Headquarters were located in Houston, Texas,

(ii) Technip, located in Paris, France,

(iii) Snamprogetti located in Milan, Italy and

(iv) The JGC Corporation located in Yokohama, Japan.

The Joint Venture, itself, was registered in Portugal. The Defendant's alleged role was that he was hired by the Joint Venture as an agent to bribe high-level Nigerian Government Officials in order to ensure that the joint venture was awarded the contracts for the Bonny Island Project. The involvement of Albert Jackson Stanley is relevant. Stanley is a US Citizen. From 1994 to 2004, the relevant period, he lived in Houston, Texas. Stanley was the Chief Executive Officer and Chairman of KBR. He was also a member of the Joint Venture's steering committee, which made major decisions on behalf of the Joint Venture, including decisions relating to the hiring of agents. On 3 September 2008 Stanley pleaded guilty in the US District Court for the Southern District of Texas to conspiring to violate the Foreign Corrupt Practices Act in relation to these bribery allegations. Chodan lived in England at the relevant time. He was the Sales Vice-President of M W Kellogg Ltd from 1988 to 1998 and thereafter was Consultant to that company until June 2004. Chodan reported to Stanley and other employees of KBR."

5

Chodan is a UK national whose extradition had also been requested by the Government and was subject to proceedings before the City of Westminster Magistrates' Court. He is a co-defendant in the proposed proceedings in Texas. At the request of both the appellant and Chodan, the extradition proceedings were not joined. In separate proceedings, District Judge Tubbs sent Chodan's case to the Secretary of State for a decision whether to order extradition pursuant to section 87 of the 2003 Act and extradition was ordered. On his failure to file and serve a notice of appeal within the required 14 day period, his appeal to this court was held to be inadmissible.

6

Before specifying counts, the indictment in the United States District Court contains a narrative statement which provides:

"The Foreign Corrupt Practices Act of 1977, as amended, Title 15, United States Code, Section 78dd-1, et seq. ("FCPA"), was enacted by Congress for the purpose of, among other things, making it unlawful for certain classes of persons and entities to act corruptly in furtherance of an offer, promise, authorization, or payment of money or anything of value to a foreign government official for the purpose of securing any improper advantage, or of assisting in obtaining or retaining business for or with, or directing business to, any person."

It was of the essence of the charges under Title 15 that the officials concerned were foreign officials, that is foreign to the United States.

7

Title 18 of the United States Code, section 2, provides:

"(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever wilfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."

8

It involves some repetition but I summarise parts of the narrative describing the nature of the prosecution case. It goes on to provide that KBR was engaged in the business of providing engineering, procurement and construction ("EPC") services around the world, including designing and building liquefied natural gas production plants. KBR was incorporated in Delaware and its headquarters were in Houston, Texas. It is stated that Albert Stanley is a United States citizen and a resident of Houston, Texas. He served in various capacities as an officer and/or director of KBR. Wojciech Chodan is a citizen of the United Kingdom employed by a KBR company. He reported to Stanley and other KBR employees and assisted KBR in winning a series of EPC contracts to design and build an LNG plant and several expansions on Bonny Island, Nigeria.

9

The Joint Venture is stated to be a 4-company joint venture formed in 1991 for the purpose of bidding on and, if successful, performing the Bonny Island Project. It consisted of KBR and 3 other companies. The steering committee of the Joint Venture consisted of high-level executives from each of the 4 Joint Venture companies, including Stanley on behalf of KBR. The Joint Venture operated through 3 Portuguese special purpose corporations which were owned by the 4 Joint Venture companies, 2 of them owned equally by the 4 companies and a third, used to enter into consulting agreements with Joint Venture agents, 50% by KBR and the rest by other Joint Venture companies.

10

The appellant is stated to be a citizen of the United Kingdom, resident in London, England. He was hired by the Joint Venture to help it obtain business in Nigeria, including by offering to pay and paying bribes to high-level Nigerian Government Officials. He was an agent of the Joint Venture and each of the Joint Venture companies.

11

Tri- Star Investments Limited ("Tri- Star") was a Gibraltar corporation that Tesler used as a corporate vehicle to enter into agency contracts with and receive payments from the Joint Venture. Between December 1995 and January 2004, the Joint Venture paid Tri- Star over $130 million for use in bribing Nigerian Government Officials. Tri- Star was an agent of the Joint Venture and each of the Joint Venture companies.

12

The Nigerian National Petroleum Corporation ("NNPC") was a Nigerian Government-owned company charged with development of Nigeria's oil and gas wealth and regulation of the country's oil and gas industry. Nigeria LNG Limited ("NLNG") was created by the Nigerian Government to develop the Bonny Island Project and was the entity that awarded the EPC contracts. The Nigerian Government exercised control over NLNG, including but not limited to the ability to block the award of EPC contracts. NLNG was an entity and instrumentality of the Government of Nigeria and its officers and employees were foreign officials within the meaning of Title 15.

13

Between 1995 and 2004, the Joint Venture was awarded 4 EPC contracts to build the Bonny Island Project. The first was awarded to the Joint Venture through an ostensibly competitive...

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