- The High Court ruled that double criminality depends on conduct and not matching legal elements of offences.
- Six Nigerian nationals lost their appeal against extradition to the United States on fraud and money laundering charges.
- The court found the alleged conduct constitutes fraud, cybercrime and money laundering under South African law.
The High Court in the Western Cape has confirmed that six men accused of running a multi-million dollar online fraud scheme can be extradited to the United States. The court held that differences in how crimes are defined across countries do not stand in the way of extradition.
Judge M Sher, with Acting Judge A Bhoopchand concurring, said, “The focus is to be on the nature of the conduct of the offender and not upon the name or elements of the offence in either state.”
The appellants, Perry Osagiede, Enorense Izevbigie, Franklyn Edosa Osagiede, Osariemen Eric Clement, Collins Otughwor, Musa Mudashiru, Toriseju Gabriel Otubu and Prince Ibeabuchi Mark, are Nigerian nationals who were living in South Africa at the time of the alleged offences.
US authorities are seeking their extradition following indictments issued by the United States District Court for New Jersey on 22 July 2021, covering the first to seventh appellants, and by the United States District Court for Eastern Texas on 18 November 2021, covering the eighth appellant. The charges include wire fraud, aggravated identity theft and money laundering, together with conspiracy to commit those offences.
The affidavits supporting the extradition request were filed by State Attorneys for the Districts of New Jersey and Eastern Texas, along with agents of the United States Secret Service and the Federal Bureau of Investigation. They set out the investigations conducted, the charges reflected in grand jury indictments, and the warrants issued for the appellants’ arrest.
The case is that between 2011 and 2021, the appellants participated in an international criminal enterprise involving wire fraud, aggravated identity theft and money laundering. They are alleged to have defrauded individual victims in the United States, as well as corporate and government entities, out of at least 17 million US dollars.
According to the evidence, the appellants used false aliases built on stolen identities to communicate with victims and persuade them to transfer funds. In several alleged romance scams, the appellants deceived victims into believing they were in genuine romantic relationships, persuading them to hand over large sums of money. The proceeds were then allegedly laundered through various structures, entities and bank accounts across jurisdictions.
A Cape Town magistrate ruled on 19 February 2024 that the appellants were liable to be extradited under section 10 of the Extradition Act, and ordered their detention pending a decision by the Minister of Justice and Constitutional Development. Six of the eight appellants went on to appeal that ruling.
Arguments before the court
The appellants argued that the double criminality requirement had not been met, because the offences they face in the United States do not correspond with any offences under South African law.
They contended that the court was required to compare the elements of the offences in both jurisdictions and determine whether those elements are the same or substantially similar.
The State argued that the correct approach is to assess whether the conduct alleged would constitute offences in South African law, regardless of differences in terminology or formulation.
Court settles the test
The court held that the USA-South Africa extradition treaty requires a conduct-based approach. The totality of the acts or omissions alleged must be assessed to determine whether they constitute offences under South African law, regardless of how those offences are described or categorised in the requesting state.
Judge Sher said, “Whether the laws of the two states categorise or denominate the offences as the same, or substantially similar, is not required or relevant.”
The court also held that elements specific to US law, such as references to interstate or foreign commerce, are relevant only to jurisdiction and play no role in the double criminality enquiry.
Application to the facts
Applying this approach, the court found that the conduct described in the extradition request would constitute offences under South African law.
Judge Sher held, “The alleged conduct of the appellants… constitutes in South Africa the common law offence of fraud and statutory offences of cyber fraud and cyber forgery and uttering.”
The court also found that the alleged laundering of proceeds through accounts, entities and financial structures would constitute offences under the Prevention of Organised Crime Act.
The court held that these offences are punishable with terms of imprisonment exceeding the minimum threshold required under the Extradition Act and the applicable treaty.
The court concluded that although the magistrate had applied an elements-based approach, the bottom line was that the appellants were liable to be extradited.
Limits of the extradition inquiry
The appellants also raised complaints about search and seizure operations, the admissibility of evidence, and their alleged association with the Neo Black Movement of Africa.
The court held that these issues fall outside the scope of an extradition enquiry under section 10 of the Extradition Act. Judge Sher said, “The magistrate was not empowered to determine the admissibility or reliability of the evidence… those issues are for the trial court in the requesting state.”
The court held that references to the Neo Black Movement formed part of the background narrative and did not form part of the essential elements of the charges.
Outcome
The appeal was dismissed. The six appellants remain liable to be extradited to the United States, pending a decision by the Minister of Justice and Constitutional Development.
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