FEDERAL COURT OF AUSTRALIA

Rojas v United States of America [2019] FCA 22

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed, with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal under s 21 of the Extradition Act 1988 (Cth) (Act) brought by way of an originating application. It seeks limited merits review of a decision of a judge of the Federal Circuit Court of Australia, as provided for by s 21. On 9 August 2018, the primary judge determined that the respondent, Mr Edgar Andres Viloria Rojas, a citizen of Venezuela, was eligible for surrender to the United States of America.

2    This merits review proceeding focuses upon the requirements imposed by s 19(2) of the Act in relation to the sufficiency of the information provided as to the conduct said to constitute the offence for which extradition is sought, and the meeting of the “dual criminality” requirement for extradition that such conduct would constitute the commission of an offence in Australia.

3    The procedural history is as follows:

(1)    On 9 September 2017, a United States federal grand jury in Nevada indicted 36 members of an organisation known as “Infraud” on a charge of “conspiracy to engage in a racketeer corrupt influenced organization”, apparently derived from the Racketeer Influenced and Corrupt Organizations Act (RICO), contrary to Title 18, United States Code, s 1962(d). One of those indicted was Mr Rojas.

(2)    On 31 October 2017, the same grand jury returned a superseding indictment, which added further charges, but not against Mr Rojas, and an arrest warrant for Mr Rojas was issued by the United States District Court in Nevada.

(3)    On 4 December 2017, an extradition arrest warrant was issued in respect of Mr Rojas, under s 12(1) of the Act. On 6 February 2018, he was arrested on that warrant. He has been remanded in custody under s 15(2) of the Act ever since.

(4)    On 22 March 2018, the United States requested the extradition of Mr Rojas, in order to prosecute him for the RICO offence.

(5)    On 30 March 2018, the Commonwealth Attorney-General gave a notice under s 16 of the Act that the extradition request had been received.

(6)    On 23 May 2018, the United States applied for extradition proceedings to be conducted under s 19 of the Act.

(7)    On 20 July 2018, the primary judge, siting administratively as an “eligible Federal Circuit Court Judge”, conducted proceedings under s 19 of the Act.

(8)    On 9 August 2018, the primary judge determined that Mr Rojas was eligible for surrender and issued a warrant ordering that he be committed to prison under s 19(9) of the Act to await surrender under a surrender warrant, or release pursuant to s 22(5) of the Act.

(9)    On 23 August 2018, Mr Rojas commenced this appeal by way of an originating application, seeking to have the primary judge’s order quashed pursuant to s 21(2)(b) of the Act.

4    An important part of Mr Rojas’ case below and in this review is that he is a citizen of Venezuela, and has never been to the United States. He was lawfully in Australia on a student visa when he was arrested consequent upon the request for extradition. This review raises questions as to whether the primary judge erred in concluding that asserted extraterritorial impediments were not made out, and/or erred in concluding that the description of Mr Rojas’ conduct was sufficient for the purposes of making a finding of eligibility for surrender.

5    Section 19(2) of the Act provides:

For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

(a)    the supporting documents in relation to the offence have been produced to the magistrate or Judge;

(b)    where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate or Judge of any other documents—those documents have been produced to the magistrate or Judge;

(c)    the magistrate or Judge is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and

(d)    the person does not satisfy the magistrate or Judge that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

6    The content of the obligation to produce supporting documents to the magistrate or judge in s 19(2)(a) and (b) is provided by s 19(3), of which only paragraph (c)(ii) is relevant in this case. Section 19(3)(c)(ii) provides that the “supporting documents” in relation to an extradition offence must include “a duly authenticated statement in writing setting out the conduct constituting the offence” (conduct statement). This in turn picks up the extradition treaty requirement to describe the facts and “[set] forth reasonable grounds for believing that an offence has been committed and that the person sought committed it”: Article XI(3)(c) of the Treaty on Extradition between Australia and the United States of America, as replaced by Article 7 of the Protocol amending that treaty.

7    There is no issue as to authentication.

8    In relation to the requirements of a conduct statement, and the requirements of dual criminality, the primary judge relied upon Griffiths v United States of America [2005] FCAFC 34; 143 FCR 182. The Full Court’s pithy summary of six statements of principle emerging from prior authority as to what it described as “well-accepted propositions concerning what is required of, and what is the purpose of, a statement of conduct both for s 19(3)(c)(ii) and (2)(c) purposes” was is as follows (at [49]-[55]):

(i)    As already noted, it is well-accepted that the statement “setting out the conduct constituting the offence” for s 19(3)(c)(ii) purposes may consist of a number of documents: Dutton v O’Shane [[2003] FCAFC 195; 132 FCR 352] at [105]. For this reason it is permissible to have resort to all of the “supporting documents” to ascertain what that conduct is.

(ii)    Section 19(3)(c)(ii) requires a statement of the “acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed”: s 10(2). A bare description or definition of the offence will not suffice: De Bruyn v Republic of South Africa (1999) 96 FCR 290 at [8] ff; McDade v United Kingdom [[1999] FCA 1868 (Full Court)] at [16]. As was said by Gleeson CJ and McHugh and Heydon JJ in the s 42 (“speciality”) case of Truong v The Queen (2004) 78 ALJR 473 at [29]:

The acts or omissions, that is, the conduct, by virtue of which an offence has been, or is alleged to have been, committed, lie at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other.

(iii)    The statement must speak with sufficient specificity, clarity and coherence to serve its purpose: cf Linhart v Elms (1988) 81 ALR 557 at 583. Hence, as Kenny J said in McDade at [17] [with whom French and Marshall JJ agreed]:

Having regard to the purposes of a s 19(3)(c)(ii) statement, a document will not meet the requirements of that provision if it is so vague and general or so disorganised that the relevant acts and omissions cannot be reasonably identified. Whether a statement relied on in satisfaction of that provision is to be accepted as a statement setting out the conduct constituting the relevant extradition offence or offences is essentially a “matter of practical judgment and assessment, not for over-zealousness in discerning deficiencies”: Zoeller at 294 and Wiest [(1988) 23 FCR 472] at 519.

(iv)    The s 19(3)(c)(ii) statement serves a dual purpose. First, the facts relevant to the extradition offence are proved by that statement. Second, because the magistrate making the eligibility determination is confined to the material adduced in the supporting document, the statement must be such as to permit the magistrate to be satisfied that the conduct said to constitute the offence would constitute an extradition offence had it taken place in that part of Australia where the proceedings are being conducted: Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 299-300; De Bruyn v South Africa [[1999] FCA 1344; 96 FCR 290 (Full Court)] at [7].

(v)    It is not the magistrate’s function under s 19 to determine what are the minimum facts necessary to constitute the foreign offence. As was said in Zoeller at 300:

That there has been a foreign crime committed is for the purpose of the proceedings before the magistrate proved by the warrant duly authenticated. What the facts relevant to that crime are is proved by the duly authenticated statement under s 19(3)(c)(ii). That the offence is an extraditable offence is proved by the s 19(3)(c)(i) document. All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law.

(vi)    A consequence of the dual purpose of the s 19(3)(c)(ii) statement is that the level of information and detail the requesting country provides about the conduct constituting the extradition offence may be sufficient to satisfy s 19(3)(c) but be inadequate for s 19(2) purposes.

9    Filed with Mr Rojas’ originating application was an affidavit from his then solicitor, raising the following grounds of review in relation to the primary judge’s decision:

(a)    That the decision was in error in holding that s 19(2) of the Act had been satisfied in circumstances in which the United States of America sought to exercise extraterritorial jurisdiction in relation to conduct of the Applicant.

(b)    That the decision was in error in that the conduct of the Applicant could not be conduct constituting an offence in the State of NSW at the relevant time.

 (c)    That the decision was in error in that inadequate supporting material within the meaning of the Act and the Treaty on Extradition between Australia and United States of America was provided for the purposes of s 19 of the Act.

(d)    That the Applicant should not in all the circumstances be found to be eligible for surrender to United States of America[.]

10    Mr Rojas therefore asserts that the primary judge erred because, contrary to his Honour’s findings:

(10)    the requirement in s 19(2)(b) was not met, because the conduct statement was inadequate; and

(11)    the dual criminality requirement of s 19(2)(c) was not met, because there was a lack of jurisdictional connection between the factual allegations made against him and the United States, such that those allegations could never found a successful prosecution according to the law of New South Wales.

11    The primary judge referred to the conduct statement that was before his Honour, principally by way of an affidavit by Mr Chad McHenry, an Assistant United States Attorney, including exhibits annexed to that affidavit, including an indictment. His Honour described the first critical fact described in that affidavit as being that Mr Rojas was a member of a “transnational criminal carding organisation” known as the “Infraud Organisation”. His Honour summarised Mr McHenry’s description of “carding” as involving “the trafficking of credit card, bank account and other personal information online” as well as “related fraud services”. His Honour then summarised, non-exhaustively, the burden of the description by Mr McHenry of Mr Rojas’ conduct as follows (at [19]):

 a)    he offered, via private messages and posts on the Infraud forum, to provide a drops service, meaning that he would act as an intermediary to locate an individual to receive stolen merchandise purchased with compromised credit cards;

 b)    he purchased compromised credit card numbers from Organisation members and requested other members to offer USA paypal accounts in bulk for him to purchase;

 c)    he used the exchange services of another member of the Organisation. This person charged a fee to turn e-currency into fiat currency or another digital currency; …

 d)    he used Skype to communicate with other Infraud members;

e)    he expressed an interest in using bank-drop services which involved a person entering a bank and withdrawing ill-gotten funds from a bank account in order to provide the funds to the person using the service.

12    The submissions for Mr Rojas make only passing reference to the primary judge’s reasons, focusing instead on the material that was before his Honour and the conclusions that it is said his Honour should have reached. In relation to dual criminality, Mr Rojas contends that his Honour failed to grapple with the requirements of s 19(2)(c). In relation to the sufficiency of the conduct statement, Mr Rojas contends, in substance, that his Honour failed to find that the affidavit of Mr McHenry fell short of what was required.

13    At the hearing of the review application, senior counsel for Mr Rojas suggested that there were three issues for determination:

(1)    the proper construction of s 19(2)(c) of the Act;

(2)    what was said to be a factual question as to the identification of the “true facts” said to support the charges brought against him; and

(3)    the adequacy of the documents provided in support of the application for extradition.

The requirement for dual criminality and the proper construction of s 19(2)(c) of the Act

14    The argument advanced by Mr Rojas is that the nature of the allegations made against him could never found a successful prosecution in NSW, because there was no “jurisdictional connection” between those allegations and the United States, and that the same defect necessarily infects the finding of dual criminality.

15    The primary judge (at [35]) described the requirement imposed by s 19(2)(c) of the Act as being that the conduct relied upon by the United States as constituting the offence must also constitute an offence under the laws of New South Wales or the Commonwealth if that conduct had occurred in New South Wales on 22 March 2018, being the date upon which the extradition request was received by Australia. His Honour observed (at [36]) that there did not need to be a complete correspondence between the alleged offence and the elements of an offence under Australian law and that he was not limited to considering those facts that are necessary components of the foreign offence, but could consider all the facts contained in the materials provided, citing Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 292-300.

16    The Australian offences relied upon by the United States were both under the Crimes Act 1900 (NSW), namely participating in a criminal group contrary to s 93T, and dealing with property suspected of being proceeds of crime, contrary to s 193C. Mr Rojas did not rely upon any issue concerning the sufficiency of his alleged conduct in relation to the foreign offences to establish the express elements of those NSW offence provisions, if that conduct had taken place in NSW. Rather, his complaint was jurisdictional, in the sense that he contended that there was a lack of a connection between his conduct and the United States, and that he could not be prosecuted here for an offence which would similarly not have been connected to NSW. In his words, as reproduced by the primary judge (as part of [39]), the question posed for resolution by his Honour was:

whether New South Wales would consider it an offence, capable of prosecution in New South Wales, for a person resident and present in Venezuela, to have engaged in the conduct alleged of [Mr Viloria Rojas] in Venezuela, in circumstances in which the conduct had no connection to the state of New South Wales.

17    The basis for posing the question in that way was based on the terms of s 19(2)(c), reproduced above at [5]. The argument was that the “dual criminality” of his conduct was required to be determined by reference to local law, such that a NSW court would dismiss such a charge for want of a sufficient territorial jurisdictional connection or geographic nexus with either NSW or the Commonwealth of Australia.

18    This argument failed before the primary judge for two reasons:

(1)    his Honour found that the argument conflated two very different questions:

(a)    whether the conduct as alleged constitutes an offence in the United States; and

(b)    whether, if that conduct occurred here, it would constitute an offence against Australian domestic law;

(2)    his Honour found that the argument ignored the transposition required by s 19(2)(c), which in this case involved an assumption that Mr Rojas was in NSW when, as alleged, he bought a compromised credit card, requested “bank drop” services, used the escrow and currency exchange services provided by other Infraud members and requested other such members to provide bulk United States PayPal accounts for sale.

19    The primary judge found that the only extra-territorial activity that had to be considered was that of Infraud and its other members, with the law of NSW being neutral to that extra-territoriality so that the alleged conduct, if it happened here, would contravene both ss 93T and 193C of the NSW Crimes Act.

20    The primary judge then considered the terms of those two offence provisions in some detail, and concluded that the conduct alleged to have been engaged in by Mr Rojas would have constituted an offence against both. That aspect of his Honour’s reasons is not challenged. To the contrary, Mr Rojas quite properly concedes that ss 93T and 193C of the NSW Crimes Act, both being extradition offences, “may capture physical conduct ‘equivalent’ to the physical conduct alleged”, but asserts that was not an answer to the problem he is raising. This dispenses with any debate about sufficient similarity to meet that dimension of dual criminality. Rather, the issue Mr Rojas raises is as to the asserted extra-territorial element said to be missing. He asserts that his alleged conduct would not qualify as an offence against the law of NSW because neither offence provision captured the specific features of his alleged extraterritorial conduct. That is a reference to his conduct occurring only in Venezuela, which he seeks to make part of the transposition requirement imposed by s 19(2)(c). Thus he argues that the requested offence must be a criminal offence under NSW law.

21    In this review proceeding, Mr Rojas places reliance on the following passages in the judgment of Deane J in Riley v Commonwealth (1985) 159 CLR 1 at 16-18:

… double criminality, although not binding as a mandatory rule under international law, has long been recognized as an accepted principle which is customarily observed by states in making and applying arrangements for the extradition of alleged offenders …

Notwithstanding widespread acceptance of the principle of double criminality as a general standard to be observed in international relations, the precise content of the principle remains unsettled. Its essential utility is to provide an available safety mechanism whereby a state is not required to surrender up a person, possibly one of its own nationals, to be tried and punished for conduct which, according to the standards accepted by those within its boundaries, is not deserving of punishment at all …

The preferable view – and that which commands general acceptance – rejects the need for precise correspondence between labels or between the constituent elements of identified legal offences under the criminal law of the requesting and requested states and defines the principle of double criminality in terms of substance rather than technical form. …

One of the most authoritative general statements of the preferable view of the requirement of double criminality remains that contained in the resolutions adopted by the Institut de Droit International at its 1880 Oxford meeting: “As a rule it should be required that the acts to which extradition applies be punishable by the law of both countries, except in cases where by reason of particular institutions or of the geographical situation of the country of refuge the actual circumstances constituting the offense cannot exist” (emphasis added). Of comparable importance for this country is the provision of Art. 10 of the London Scheme of 1966: “The return of a fugitive offender will either be precluded by law or be subject to refusal by law ... if the facts on which the request for his return is grounded do not constitute an offence under the law of the country or territory in which he is found” (emphasis again added; quoted in Ryan, International Law in Australia, 2nd ed. (1984), p. 199). It has been suggested that the requirement of double criminality will be satisfied whenever the acts alleged in the extradition request would involve the commission of a criminal offence in both the requesting state and the requested state: see, e.g., Levy, “Double Criminality and the U.S.-U.K. Extradition Treaty”, Brooklyn Journal of International Law, vol. VII (1982), pp. 482- 483. That suggestion would, however, unduly discount the content of the requirement of double criminality if it would permit extradition in a case where conviction under the law of the requesting state was possible upon proof of some only of the acts alleged in the warrant. The principle of double criminality is satisfied where, and only where, any alleged offence against the law of the requesting state in respect of which extradition is sought would necessarily involve a criminal offence against the law of the requested state if the acts constituting it had been done in that state.

22    Some caution must be taken in relying upon Riley, due to that case being concerned with an earlier, and more stringent, extradition regime prior to the Act. However, the broad statements of principle reproduced above remain relevant and helpful.

23    In answer to the suggestion that the focus of the above passages was on conduct, Mr Rojas submits that this is too narrow a view, and that the facts encompass not just the conduct, but also the location of the conduct. This submission is based on the phrase in s 19(2)(c) “the conduct of the person constituting the offence in relation to the extradition country”. In response to the suggestion that this interpretation was importing the idea of Mr Rojas having done things in Venezuela, which is not what s 19(2)(c) requires, but rather consideration of the circumstance if the conduct alleged had taken place in NSW, he submits that the “conduct of the person constituting the offence” includes the territorial location of that conduct, and in this case, the extraterritorial location of that conduct. Mr Rojas accepts that this is not what a strict reading of s 19(2)(c) requires, but submits that such a literal reading would lead to “an immediate absurdity which is not what is contemplated by the Act, nor the purposes of the Act”. According to Mr Rojas, this is because it would countenance a foreign country criminalising conduct occurring overseas that had no jurisdictional nexus with that country, and then seeking to extradite a person accused of that offence from Australia.

24    There are at least three answers to Mr Rojas’ argument for departing from the text of s 19(2)(c). First, in Polyukhovich v Commonwealth (1991) 172 CLR 501, the High Court by majority upheld the validity of the War Crimes Amendment Act 1988 (Cth), in amending the War Crimes Act 1945 (Cth), by providing for the prosecution in Australia of war crimes committed in Europe in the Second World War as a law with respect to external affairs, despite this operating on the past conduct of persons who, at the time of the commission of the conduct, may have had no connexion with Australia (i.e. who may have, like Mr Polyukhovich, later emigrated to, and obtained citizenship in, Australia). The operation of that Act was confined to Australian citizens, but it did not have to be, and that was not the foundation for its constitutional validity. Thus, there is no inherent absurdity in a country seeking to protect its wider interests by criminalising extraterritorial conduct, noting that in any event that is not the case that the United States seeks to bring against Mr Rojas. The United States asserts a jurisdictional nexus to Mr Rojas’ alleged conduct as being directed to that country.

25    Secondly, even if some absurdity could be found that fell outside the ambit of Polyukhovich, that is not a sufficient basis for changing the plain meaning of the statute. If that situation truly arose, the remedy lies in the ultimate discretion of the Commonwealth Attorney-General to exercise his (or her) discretion under s 22 of the Act to decline the extradition request, being the fourth stage of determining such a request.

26    Thirdly, the phrase in s 19(2)(c) relied upon by Mr Rojas – “the conduct of the person constituting the offence in relation to the extradition country” – does no more than make clear that it is the alleged conduct relied upon for extradition, wherever it took place, that is to be transposed to the part of Australia in which the extradition proceedings take place. It does not have the effect of importing any territorial or extraterritorial dimension into the transposition exercise that is required.

27    The written submissions for Mr Rojas are detailed on this issue, but do not warrant similarly detailed consideration. That is because, flowing from the above, they depend upon a foundational false premise starkly raised by the question he posed for the primary judge (reproduced above at [16]), positing his alleged conduct occurring in Venezuela, and him being prosecuted for that overseas conduct in NSW. As the United States correctly points out, by way of a positive construction of s 19(2)(c) to the contrary, the necessary comparison is between the conduct as if it had occurred in NSW, and any applicable offence in NSW (State or federal) that is relied upon. In truth, it is not necessary to go beyond the plain words in s 19(2)(c), which make it clear that the primary judge was required to be satisfied, on a hypothetical transposition, that if the alleged conduct of Mr Rojas “had taken place in [NSW on 22 March 2018], that conduct or that equivalent conduct would have constituted an extradition offence in [NSW]”.

28    To put the issue beyond doubt, as was clearly stated in Zoeller at 300 (emphasis added):

The magistrate is no expert in foreign law. He is not required to determine what the facts are that are the minimum facts necessary to constitute the foreign crime. That there has been a foreign crime committed is for the purpose of the proceedings before the magistrate proved by the warrant duly authenticated. What the facts relevant to that crime are is proved by the duly authenticated statement under s 19(3)(c)(ii). That the offence is an extraditable offence is proved by the s 19(3)(c)(i) document. All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law.

29    The point is made even clearer in Dutton v O’Shane [2003] FCAFC 195; 132 FCR 352 at [69] (emphasis added):

For this reason, the “practical judgment” to which Gummow J referred in Linhart requires one, when looking at the conduct constituting the offence in the extradition country, to ask what is the essence of that conduct in its setting when viewed by Australian eyes for the purpose of determining its criminality under municipal law. If the conduct so characterised satisfies the component elements or ingredients of what would be an extradition offence under the law of the part of Australia where the proceeding was taking place, that conduct, in our view, would constitute “equivalent conduct” for s 19(2) purposes. This process involves a form of abstraction and characterisation of Mr Dutton’s conduct which, to adapt the language used in the Canadian decision Re Collins (No 3) (1905) 10 CCC 80 at 101, requires you:

to fasten your attention not upon the adventitious circumstances connected with the conduct of the accused but upon the essence of his acts, in their bearing upon the [foreign] charge in question. And if you find that his acts so regarded furnish the component elements of the imputed offence according to the law of this country, then [the double criminality] requirement is complied with.

30    If there is any jurisdictional deficiency in the United States being able to prosecute what is said to be wholly extra-territorial conduct in relation to that country, that is a matter to be raised in the courts of that country. It is beyond doubt that such questions of validity of overseas proceedings cannot be raised in extradition proceedings: see again the quote from Zoeller at 300 reproduced at [28] above; see also Bennett v United Kingdom [2000] FCA 916; 179 ALR 113 at [25]. Mr Rojas therefore gains no assistance in this proceeding from the cases he cites on the content and effect of such challenges to the validity based on want of jurisdiction, including by reason of extra-territoriality. Such issues and arguments are for litigation in the United States, not here. As it transpires, Mr Rojas does not assert for the purposes of his argument any such impediment to the prosecution proceeding in the United States, but only to extradition to face such proceedings.

31    It follows that far from the primary judge falling into error, his Honour was correct in his analysis and understanding of dual criminality, and in its application. This ground of review must therefore fail.

The requirements of a conduct statement: s 19(2)(b) of the Act

32    The substance of this complaint is an assertion that Mr McHenry’s affidavit falls short of setting forth reasonable grounds for believing that Mr Rojas has committed an offence under United States law. He submits that the conduct particularised against him falls short of establishing a reasonable basis for concluding that he participated or contributed to a conspiracy to engage in a racketeer influenced corrupt organisation. It is said that Mr McHenry’s affidavit “completely fails” to identify any conduct by Mr Rojas which could suggest that he entered into an agreement that at least any combination of two of the prohibited racketeering activities would be committed by at least one other conspirator.

33    The substance of the complaint as developed in oral submissions is as follows:

(1)    the Infraud organisation is a web forum by way of an internet website;

(2)    the substance of the indictment is that anybody who logged onto the website is said to be a conspirator;

(3)    the indictment does not allege any express act of conspiracy of Mr Rojas with any other person on the website;

(4)    Mr Rojas is named in the indictment, but is only named in a single one of the pleaded 117 overt acts (at [14.87] of the indictment), being that he purchased a compromised credit card;

(5)    the facts outlined by Mr McHenry commence by describing the information provided by a “cooperating witness”, who had first-hand knowledge of the existence of Infraud, including the use of illicit websites, which does not refer to Mr Rojas;

(6)    Mr McHenry describes Mr Rojas becoming a member of Infraud on 26 May 2011 and being given a particular status within the organisation on 8 September 2011, but did not generally operate as a vendor – the point taken is that there is no allegation that he in fact operated as a vendor – but he is alleged to have used the forum to purchase various illegal goods and services offered for sale by other Infraud vendors;

(7)    Mr McHenry accepts that there must be a link known or at least reasonably apprehended by him, between what he is said to have done, and the United States, which was not there at all;

(8)    it was not enough that there is an organisation dedicated to a set of illegal activities and a person participates in the activities of that organisation;

(9)    nor was it enough that Mr McHenry only identified a single instance of Mr Rojas having purchased the details of a compromised (that is to say, stolen) credit card, which was advertised on the Infraud forum by an alleged co-conspirator, but purchased from a different website;

(10)    the conduct as alleged fell short of constituting a “pattern of racketeering activity” as required by the RICO offence relied upon for extradition;

(11)    the conduct alleged also fell short of the minimum asserted by Mr McHenry of proving that its natural consequence affected interstate or overseas commerce; and

(12)    it followed that the supporting material did not come close to demonstrating the necessary level of seriousness and the likelihood of successful prosecution, as required by Todhunter v United States of America (1995) 57 FCR 70.

34    The United States challenges the assertion of inadequacy in two ways. The first is cast at the level of principle, namely that Article XI(3)(c) of the treaty (as amended) requires no more than “an inclination of the mind towards the proposition that the relevant offences have been committed and that the [person whose extradition is sought] committed them”, which is “sufficient even if the description of the facts falls short of proof”: Hermanowski v United States of America [2006] FCAFC 8; 149 FCR 93 at [61]. The second is by reference to the content of Mr McHenry’s affidavit, effectively characterising it as comfortably exceeding the Hermanowski standard, noting also that the requirement is to have regard to the totality of the material, rather than to single out parts for close analysis, as Mr Rojas had done.

35    As was further concluded in Hermanowski at [62]:

We are of the opinion that Art XI(3)(c) does not mandate either that there must be an explanation of the facts sufficient to demonstrate reasonable grounds for believing that an offence has been committed and that the person whose extradition has been sought committed it, that the intended witnesses for the prosecution be identified, that their respective availability to give evidence be confirmed and that their respective likely evidence be specified, or that there must be disclosure of material from which an assessment may be made of the quality of the evidence to be called to prove the facts described. Such material may, but need not necessarily, be provided.

36    This submission of the United States is supported and indeed made good by a summary of Mr McHenry’s affidavit that was provided to the primary judge and was annexed to the written submissions for the United States in this proceeding, aspects of which were addressed at the review hearing. The thrust of those submissions is that the burden of the affidavit is to establish Mr Rojas’ participation in a criminal group. There is no requirement to determine guilt or innocence, or even to determine whether a prima facie case exists, subject to the threshold identified in Todhunter, discussed below. Section 11 of the Act provides that a prima facie test may be prescribed for a specific extradition country, however that is not the case for the treaty with the United States.

37    On my reading and comparison, the summary document prepared by the United States, furnished to the primary judge, and also relied upon in this review proceeding, contains a fair, although not exhaustive, summary of the relevant content of Mr McHenry’s affidavit as to Mr Rojas’ conduct. While Mr Rojas’ submissions pick holes in the material in that affidavit, which might be useful at trial in the United States if the evidence adduced went no further, it does not gainsay the United States’ submission to the effect that the Hermanowski standard has been met and indeed exceeded. It is convenient to reproduce that summary, rather than attempt to further paraphrase it (omitting footnote references to the particular parts of Mr McHenry’s affidavit):

In 2015, the United States Department of Homeland Security, Homeland Security Investigations (HSI), conducted an investigation into the Infraud organisation: a transnational criminal “carding” organisation suspected of engaging in various criminal activities. These activities include, but are not limited to, large-scale trafficking of compromised credit card data and counterfeit instruments (counterfeit identifications and counterfeit credit cards); money laundering; and various computer crimes. The slogan of Infraud was “In Fraud We Trust”.

The purposes of Infraud are described in the Indictment.

Through a virtual forum located at various domain names, members of Infraud congregate to purchase illegally obtained data, and share knowledge and techniques used in various credit card fraud schemes for the purpose of maximising the amount of money they can fraudulently obtain.

During the course of a separate law enforcement operation, undercover authorities regularly logged into one of the domains used by Infraud, where they observed the advertising, sale and purchase of compromised or stolen credit card and debit card account numbers, among other activities. Multiple posts, messages and conversations revealed transactions for the sale of goods and services associated with compromised, stolen, credit and debit card data. Coordination with MasterCard, Visa, American Express and Discover confirmed the compromised nature of the credit card information appearing on the forum.

During its investigation, HSI obtained copies of the online forum, allowing investigators to review forum membership dating back to the establishment of Infraud.

Mr Viloria Rojas was a member of Infraud. HSI identified that Mr Viloria Rojas had become a member of Infraud on 26 May 2011.

On 8 September 2011, Mr Viloria Rojas was granted “Fratello Mason” status, recognising him as a notable member of Infraud, as distinct from general members and vendors. He was given this status by the founder of Infraud, who is the first defendant in the Indictment.

Mr Viloria Rojas was found to have engaged in various unlawful activities, such as purchasing stolen credit card numbers, as well as illegal goods and services.

In conducting these activities, Mr Viloria Rojas made use of Infraud’s escrow service, which acted as a neutral safe-deposit box where buyers could deposit e-currency when purchasing illegal goods. The escrow service was operated by the second defendant in the Indictment.

While Mr Viloria Rojas did not advertise as a vendor, he sent private messages and posts offering to provide a “drops” service, whereby other members could use him to locate an individual to receive stolen merchandise purchased with compromised credit cards. That individual would then sell or send the stolen merchandise to the purchaser. [Mr Viloria Rojas] also expressed interest in using “bank drop” services, whereby a service provider enters a bank to withdraw illegal funds from a bank account, and provides these to the client for a fee, for the purpose of protecting the client from arrest or other harassment from law enforcement.

In order to access the online forum, individuals had to request membership from Infraud’s leadership. Access was restricted to members, and members were encouraged to communicate using private messaging services. Despite these attempts to protect members’ anonymity, investigators were able to identify Mr Viloria Rojas by tracing the email addresses associated with his online username, “Guapo”. Evidence of Mr Viloria Rojas’ unlawful activity was corroborated by a review of Infraud’s online discussion forum; business and official records; and expert witnesses familiar with financial transactions involving Infraud, its staff and its operators.

38    I infer that the above summary assisted the primary judge in reaching the following conclusions (at [33]):

In this case, the description of the facts is found in the McHenry Affidavit. The deponent not only gives a description of the conduct which is said to have constituted the offence but also describes the state of the investigation, including the information obtained from a former member of the Organisation, and information gleaned by agents by monitoring the Organisation's website. In addition, he describes the essential elements of the offence. That description of the facts is sufficient in my view to establish reasonable grounds for believing that Mr Viloria Rojas has committed the offence for which his extradition is sought.

39    I can see no error in that characterisation. To the contrary, I agree with it. I do not consider that the objections made by Mr Rojas, summarised above, demonstrate that the conduct alleged falls short of the Hermanowski standard. The conduct alleged is more than sufficient to induce the necessary “inclination of the mind” in favour of the proposition that the alleged offences have been committed by Mr Rojas. While that information falls short of a full proof of evidence, that is not required, even under the most demanding standard set by Todhunter. Todhunter requires no more than a description of the facts and the identification of reasonable grounds for believing that the person for whom the extradition was sought had in fact committed an offence under the applicable law of the United States: see Matson v United States of America [2018] FCAFC 57 at [57]. It is not necessary to set out facts that even establish on the balance of probabilities that Mr Rojas committed those offences: Matson at [59]; see also [60]-[61].

40    It follows that the challenge to the sufficiency of the conduct statement must fail.

Conclusion

41    The originating application must be dismissed with costs.

Associate:

Dated:    18 January 2019