Ujwal Jethwa Michaela Berney and Others v The Government of the United States of America

Hearing date: 13 December 2011

Introduction

These are appeals brought under s.103 of the Extradition Act 2003 from the decisions of District Judge Tubbs dated 20 April 2011 in the case of Mr Khan, Mr Jethwa and Ms Berney, and dated 4 May 2011 in the case of Mr Kanuga, sending the cases to the Secretary of State for her decision as to whether they should be extradited.

The extradition of each of the appellants to the United States of America has been sought in a request supported in an affidavit sworn on 16 November 2010 by Matthew L Swartz, an assistant US Attorney for the Southern District of New York. The exhibits to this affidavit in each case comprise a number of supporting documents.

Exhibit A is a sealed indictment returned by a grand jury in the United States District Court for the Southern District of New York on 4 November 2010, superseded by an indictment returned by the grand jury on 1 September 2011. The indictment contains 9 counts: count 1 (conspiracy to commit bank and wire fraud), count 2 (bank fraud), count 3 (wire fraud), count 4 (conspiracy to commit access device fraud), count 5 (access device fraud), count 6 (access device fraud – device-making equipment), count 7 (access device fraud), count 8 (conspiracy to commit international money laundering), count 9 (aggravated identity theft). Exhibit B is a warrant for the arrest of each of the appellants. Exhibit C contains the provisions of the relevant law of the United States of America. Exhibit D is a photograph of the appellants.

The facts relied on

The appellants are alleged to have been part of a conspiracy to defraud and to launder money. The prosecution case is that the conspirators stole or took possession of point of sale access card reader devices and replaced the stolen devices with dummy devices which did not function. 'Skimmers' would then be inserted into the card readers to record the data on cards inserted into the devices and the Personal Identification Numbers (PINs) on those cards. The conspirators then returned and replaced the dummy devices with the adapted card readers. These adapted devices were then used to steal card data and PINs.

An example of this activity occurred on 24 January 2010 when Mr. Kanuga, Mr. Jethwa and Ms Berney entered a shop in Amsterdam called 'Vero Moda' and stole one of the access device readers. On the same day the stolen device was modified by two other members of the conspiracy named as Irfan Khan (not Asif Khan) and Zeshan Mian. The modifications included the addition of a GSM chip in the card reader which could be used to transmit messages, including SMS or 'text' messages and data, over a mobile phone network. On or around 25 January 2010 the altered device was then returned to 'Vero Moda' by Mr Kanuga and others.

Mr Khan was among the members of the alleged conspiracy who travelled to New York to orchestrate the withdrawal of cash from Automated Teller Machines (ATMs), which included providing instructions to participants in the conspiracy on how to conduct the ATM transactions.

On 6 and 7 March 2010 Mr Jethwa and Mr Khan together with others, withdrew cash from accounts that were not their own at approximately 85 different locations in New York City. There were at least 1,110 transactions and a total of approximately $260,000 in cash was withdrawn. The transactions took place within a very short space of time, and were carried out using fraudulently obtained access devices including account numbers and PINs. These included access devices which had been obtained using the altered device that had been placed in the 'Vero Moda' shop in Amsterdam in January 2010.

The money fraudulently obtained in this way was then laundered out of the USA. A number of different methods were used. On 10 March 2010, in New York, Mr Khan discussed with Mr Jethwa the possibility of using an informal money exchange system to remove the money.

On 12 March 2010 Mr Jethwa and others travelled from New York City to Toronto carrying cash that had been fraudulently obtained. On the same date a co-conspirator received approximately $9,000 in New York which had been fraudulently obtained. This co-conspirator transferred the money in a series of smaller transactions via Western Union to Mr Jethwa (using another name) in the United Kingdom. Additionally, money was sent out of the USA using an informal banking system known as 'Hawala' banking. This involved the transfer of value from sender to recipient without the movement of funds or exchange of promissory financial instruments.

In summary, the allegation against the Appellants is that they and others, participated in a conspiracy to defraud, which was carried out by stealing and adapting point of sale devices including the one in Amsterdam; and that the access devices, including account details and PINs, which were fraudulently obtained in pursuance of the conspiracy were used to withdraw large sums of money in New York. The Appellants and others are also alleged to have conspired to conceal the proceeds of their fraudulent activity and to transfer it out of the United States.

Proceedings in the United States

On 4 November 2010 a Federal Grand Jury in the Southern District of New York returned an indictment against the appellants and others, charging the 9 counts described above. On the same date Magistrate Judge Gabriel Gorenstein of the United States District Court for the Southern District of New York issued Warrants for the arrest of each of the Appellants based on the indictment of the Grand Jury (Exhibit B, referred to above).

Proceedings in the United Kingdom

The substantive extradition hearing in the case of Ms Berney, Mr Jethwa and Mr. Khan took place before District Judge Tubbs on 16 February 2011. The District Judge heard evidence from Ms. Berney and submissions from all parties on the issues raised and reserved judgment. On 20 April 2011 she gave a written judgment in which she rejected the arguments raised on behalf of these appellants, and sent their cases to the Secretary of State for her decision on whether their extradition should be ordered.

The final extradition hearing in the case of Mr Kanuga took place on 4 May 2011, with submissions being made by both sides in substantially similar terms to those made earlier on behalf of Mr. Khan and Mr. Jethwa. The District Judge gave judgment at the conclusion of this hearing in which she rejected the arguments raised on behalf of Mr. Kanuga and sent his case to the Secretary of State.

The Secretary of State ordered the extradition of Ms. Berney, Mr. Jethwa and Mr. Khan on 13 June 2011, and Mr Kanuga 28 June 2011.

The statutory provisions

Section 78 sets out the initial stages of the extradition hearing.

(2) The Judge must decide whether the documents sent to him by the Secretary of State consist of (or include) —

(a) the documents referred to in section 70(9); [the request and the Secretary of State's certificate]

(b) particulars of the person whose extradition is requested;

(c) particulars of the offence specified in the request;

(d) in case of a person accused of an offence, a warrant for his arrest issued in the category 2 territory …

(3) If the Judge decides the question in subsection (2) in the negative he must order the person's discharge.

(4) if the Judge decides that question in the affirmative he must decide whether -

(a) the person appearing or brought before him is the person whose extradition is requested

(b) the offence specified in the request is an extradition offence;

(c) copies of the documents sent to the judge by the Secretary of State have been served on the person.

…

(6) If the judge decides any of the questions in subsection (4) in the negative he must order the person's discharge.

Section 87 is concerned with a consideration of the appellants' Human Rights.

(1) If the judge is required to proceed under this section (by virtue of section 84 [where the person has not been convicted] …) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.

(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.

(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.

Section 137 defines an extradition offence for the purpose of s.78(4)(b), where the person is accused rather than subject to a sentence.

(2) The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied

(a) the conduct occurs in the category 2 territory

(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment … for a term...