Paul Nicholls v Government of The United States of America

The Applicant renews his application for permission to appeal the decision of the District Judge in a judgment delivered on 09/01/2024, to send the case to the Secretary of State pursuant to an extradition request issued by the United States of America. Extradition was ordered by the Secretary of State on 26/02/2024. The Applicant is sought for the purposes of prosecution in the Southern District of Georgia in the United States in relation to an alleged drug trafficking and money laundering operation based in Canada between 2017 to 2018.

The three counts on which prosecution is sought are:

The conduct alleged against the Applicant is set out in the ruling of the District Judge at ¶7-9. In summary, it is alleged against the Applicant that between at least April 2017 and February 20, 2018, he and a co-defendant (Thomas Federuik) operated a drug trafficking and money laundering organisation in Canada and conspired to import, and possess with intent to distribute, controlled substances into the United States. The co-defendants also conspired to collect fiat currency and cryptocurrency which they knew to be the proceeds from a variety of illegal activities. In October 2017, the co-defendants distributed controlled substances to two United States Navy Sailors in Georgia, United States, and both men died of a fatal overdose due to the toxic effects of U-49900, methoxyacetyl fentanyl, and cyclopropyl fentanyl. Both sailors had received a package from a Dark Web vendor using packaging postmarked from Canada and labelled “East Van ECO Tours” prior to their deaths. At the same time Canadian authorities were conducting investigations into a Dark Web vendor “Canada 1” which was found to be operated by the co-defendants. An undercover operation revealed the co-defendants were posting drugs delivered throughout Canada and the United States, including to the deceased sailors. 300 packages were identified as linked to the drug trafficking operation. Approximately 80 percent of the packages were directed to be shipped into the United States while the remaining packages were shipped to Canada and other countries around the world. Drugs seized equated to a street value of over $20 million.

The grounds of appeal are that:

Before the District Judge, the Applicant raised the ground of appeal now raised before this Court, namely that if extradited, the Applicant will be subjected to inhuman and degrading punishment contrary to Article 3 ECHR in the form of a penalty of an irreducible life sentence without parole or a minimum term of 20 years which is de facto an irreducible life sentence without parole.

The District Judge considered evidence as to the likely sentence on conviction. The evidence before him included reports from Assistant Attorney Pennington who will prosecute the Applicant in the event of extradition. His evidence before the judge was that the risk of a life sentence on any conviction is remote [¶72i)&ii) of the judge’s ruling].

The District Judge also considered reports and heard oral evidence from a US Attorney, Mr Sabelli on behalf of the Applicant. Until August 2022, Mr Sabelli served as President of the National Association of Criminal Defence Lawyers. Over 30 years he has represented more than 1,000 federal criminal defendants at sentencing hearings [¶59a of the ruling]. Mr Sabelli assessed the Applicant to be at risk of a sentence ranging from 40 years to life imprisonment. On the basis of his experience, he concluded that any sentence is likely to be a life sentence [¶59b].

The Judge addressed the case-law on Article 3 ECHR. His analysis may be summarised as follows:

Having set out the law the judge accepted the submission on behalf of the US Requesting Authority that he was bound by the Divisional Court decision in Hafeez v Government of United States of America. If he found an inconsistency between the cases of Sanchez and Hafeez he could record it but not depart from binding authority. He concluded that on this basis the challenge failed [¶47].

Nonetheless, the District Judge went onto consider the submission on behalf of the Applicant that the jurisprudence had moved on from Hafeez as a consequence of Sanchez such that extradition will be incompatible with Article 3 if a defendant faces a real risk of a life sentence and a requesting state does not have a mechanism of review of that sentence on the basis of the prisoner’s progress towards rehabilitation alone. In this respect, the judge considered that Sanchez was ambiguous at particular points of the judgment but the Court had cited Hafeez without suggesting it was wrong. Read as a whole, the focus of the judgment is to require a mechanism of sentence review on penological grounds [¶53]. It was not the intention of the ECtHR to require as a procedural step the review of life sentence on the basis of progress towards rehabilitation alone (which is only one of a number of penological factors) [¶54]. He concluded therefore that the ruling in Sanchez is consistent with Hafeez.

In case he was wrong in his view of the jurisprudence, he went on to apply the first limb of the two-stage approach in Sanchez, i.e whether there are substantial grounds for considering there to be a real risk that the Applicant will be sentenced to life imprisonment without parole in the event of conviction.

After summarising the evidence from Mr Sabelli and Mr Pennington, the judge set out his analysis as follows:

Drawing together his analysis he concluded as follows:

On behalf of the Applicant, Mr Fitzgerald KC focussed his criticisms of the judge on paragraphs 85, 86, 87 and 92, 93 and 97 of his ruling. The paragraphs in question are set out above. He submitted the analysis in those paragraphs reveals significant errors of the reasoning process of the judge in reaching his conclusions.

In relation to ¶85 Mr Fitzgerald submitted the judge’s stated ‘concern’ about Mr Sabelli’s reliance on material indicating drugs were imported from China was misplaced. He took the Court to the indictment issued by the United States District Court (Southern District of Georgia Brunswick Division) and pointed to reference to the drugs being imported from China. In relation to ¶86 he submitted that the judge was wrong to consider the aggravating features identified by Mr Sabelli were speculative. In particular, the aggravating feature of mass marketing is grounded in the evidence, including the use of the dark web and the value of the drugs seized (£20 million). Mr Fitzgerald also took the Court to the indictment and to Mr Pennington’s report and a reference to “where the controlled substance is distributed through mass marketing by use of a computer, the Guidelines provide an increase by 2 levels”. The judge’s finding at ¶87 that Mr Sabelli had failed to identify a single case where a life sentence without parole has been imposed in comparable circumstances was to ignore the thrust of Mr Sabelli’s submissions which were that the present case is wholly exceptional, involving in particular the deaths of two servicemen. At ¶92 the judge’s rejection of Mr Sabelli’s view that Mr Pennington’s analysis assumed co-operation by the defendant or a guilty plea was undermined by the judge’s reference at ¶89 to Mr Pennington’s concession that the cases he relied on all concerned Guilty pleas. The judge’s finding that discretionary life sentences are extremely rare [¶93] is contradicted by Mr Sabelli’s citation of the data as to the percentage of life sentences for drugs offending. It was, he submitted irrational of the judge to conclude at ¶97 that he attached no weight to Mr Sabelli’s reports given Mr Sabelli’s role as a former president of the Bar Association in the US and his 30 years’ experience at the defence bar.

The test on appeal was common ground. Mr Fitzgerald took the Court to paragraph 26 of Love v USA [2018] EWHC 172 (Admin) as to which there was no dispute.

Mr Fitzgerald’s criticisms of the District Judge focused on five paragraphs of his ruling. Before turning to address the specific criticisms, it is appropriate to set out the wider context.

At the start of the hearing, the judge had before him two reports (declarations) from Mr Pennington (dated 19 April 2023 and 5 November 2023). He also had two reports from Mr Sabelli (dated 8 September 2023 and 19 October 2023). Mr Sabelli had produced a third report dated 18 November 2023 which was served on 20 November 2023, the day before the hearing opened on the 21 November 2023. On behalf of the US Requesting Authority, Ms Brown, who appeared before the District Judge (as did Mr Fitzgerald) explained that Mr Sabelli also gave additional oral evidence. In particular he identified what he considered would be additional enhancements to any sentence, in the course of which he referred to a press release dated 1 June 2022 issued by the US Attorney’s Office, Southern District of Georgia which is headed “Two men indicted for international conspiracy to ship Fentanyl, other drugs into United Sates through Dark Web connections”. The press release had not been mentioned in his report, a point Mr Fitzgerald did not dispute before this Court. Accordingly, the District Judge permitted Mr Pennington, who did not give oral evidence, to serve a third declaration prior to closing submissions. The judge explains in his ruling that he permitted the third report from Mr Pennington on the basis it was in the interests of justice to do so and he rejected an application from Mr Fitzgerald to adjourn the hearing to enable Mr Sabelli to respond further [¶69-71].

The judge summarised the evidence of Mr Sabelli and Mr Pennington as the evidence developed over the course of the written reports and in oral evidence from ¶59 – 72 of his ruling. He did so in detail before turning to his analysis of the evidence at ¶73 – 100 and his findings on the evidence at ¶101- 107.

The judge first assessed the evidence of Mr Sabelli starting with Mr Sabelli’s evidence that his ability to comment on the likely sentence is limited because he did not have access to the case files [¶80]. At ¶85 – 87 he sets out his criticisms of the evidence, which formed the focus of Mr Fitzgerald’s submissions to which I will return.

The judge then turned to consider the evidence of Mr Pennington, observing that he will be the prosecution attorney who will have conduct of the Applicant’s trial in the US and who has access to the investigation file. There is no suggestion that Mr Pennington has acted in bad faith [¶88]. Mr Pennington and colleagues had reviewed drug cases for the past 5 years in their jurisdiction and had not identified the imposition of any life sentences [¶90]. Mr Pennington had undertaken an objective assessment of sentencing practices in similar case within the district in which the Applicant’s case will be tried [¶91]. Mr Fitzgerald did not challenge these findings about Mr Pennington’s evidence.

As Mr Fitzgerald conceded in reply, his criticism of the judge for placing no weight on Mr Sabelli’s reports does not bear scrutiny. Read fairly, the paragraph in question [¶97] refers to two particular reports relied on by Mr Sabelli and not to Mr Sabelli’s reports. It is readily apparent from the detailed summary of his evidence that the judge gave Mr Sabelli’s evidence careful consideration.

As Mr Fitzgerald also conceded during the course of his submissions, the press release relied on by Mr Sabelli during the course of his oral evidence was not referred to in Mr Sabelli’s written reports. There was therefore no error in the judge’s observation to this effect at ¶85.

I do not accept Mr Fitzgerald’s wider submission that in criticising Mr Sabelli’s focus on particular aggravating features at ¶85 and 86 the judge was ignoring the underlying evidence. I accept Ms Brown’s cogent submissions in response. The indictment represents the height of the case against the Applicant and must be considered in the context of the analysis of prosecuting counsel (Mr Pennington) who, unlike Mr Sabelli, has access to the investigation files. In this regard Mr Pennington’s report explains that the Applicant’s co-defendant is likely to be regarded as having a leadership role rather than the Applicant. Any mass marketing found would not take the sentence into the realm of life imprisonment. Significantly, given there is no challenge to the good faith of Mr Pennington, his report records that it is very unlikely for a sentence enhancement to be applied for if not sought by a prosecutor. Ms Brown took the Court to Mr Pennington’s analysis that even if the Applicant were to be sentenced to every possible enhancement it would take him to level 42 in the relevant sentencing guidelines which does not attract a life sentence. Mr Pennington’s view is that the Applicant’s case is much more likely to be nearer the lower end of level 40 than 42 given his good character [¶ 5 & 9 - 12 of Mr Pennington’s third declaration].

Mr Fitzgerald’s submissions about the exceptionality of the present case amount to an attempt to reargue submissions which failed before the District Judge. Ms Brown explained that in her submissions before the District Judge she had invited him to contrast Mr Pennington’s knowledge of the case gained from his role as prosecuting counsel and access to the investigation file with Mr Sabelli’s concession that his ability to comment was limited. Mr Sabelli’s limited ability to comment is the first point made by the judge in his analysis of the evidence [see ¶ 80-81]. When the ruling is read as a whole it is apparent that the Judge preferred Mr Pennington’s evidence to that of Mr Sabelli’s. Having been taken to some of the evidence in question, I consider there was abundant evidence before the judge which entitled him to prefer the view of Mr Pennington to Mr Sabelli. The judge gave clear and cogent reasons for his preference.

Accordingly, it is not reasonably arguable that the Judge erred in his view that there are no substantial grounds for believing there is a real risk that the Applicant will receive a sentence of life imprisonment on conviction.

Both parties were agreed that it was not necessary for the Court to consider the second limb of the Sanchez test in the event that I found against the Applicant on the first limb. Accordingly, I do not address the Applicant’s submission in relation to the development of the jurisprudence of Article 3 ECHR post Hafeez in the extradition context.

For the reasons given above the renewed application for permission to appeal is refused.