Sunday, August 1, 2021 7:08 pm
By Simbo Olorunfemi
On 25th June, 2020, after what was said to be 4 months of ‘Operation Fox Hunt 2’, which involved relentless investigation and monitoring of Ramon Olorunwa Abbas, aka “Ray Hushpuppi, ”aka “Hush,” aka “Malik,” and other members of his gang, the Dubai police simultaneously launched 6 raids while the suspects were asleep, leading to the arrest of 12 of them. Items estimated at over 150 million Dirhams were seized. But more importantly, the police took possession of 21 personal computers, 47 smartphones, 15 flash drives and 5 hard disks. With the arrest said to have been a part of a larger FBI investigation, Hushpuppi was extradited to the US within one week.
On February 12, 2021, a criminal complaint, which has only just being made public, was lodged at a US District court in California against Hushpuppi, Abba Kyari and 4 others accusing them of conspiracy to Commit Wire Fraud and launder proceeds obtained from a victim, in violation of U.S.C. Sections 1349 and 1956(h).
In other words, Kyari who is a Deputy Commissioner of Police in Nigeria is expected to make himself available to face these charges. In the light of the charges, some have called for the DCP to be immediately handed over to the FBI. Having reviewed the documents and considered the relevant administrative and legal protocols as they relate to the suspect and the case at hand, these are my observations/ submissions:
1. Those calling for him to be summarily handed over seem to have forgotten that even as dire as the circumstances, as serious as the charges are, they still must be processed through the appropriate administrative procedure and legal regime governing extradition. The Nigerian Police/Police Service Commission must comply with the rules, lest there is one infraction in the process of responding to another. That process should ordinarily involve internal review, issuance of query, etc. That, we are told, is in process already.
2. So soon, some that were calling for the due process of law to be followed with respect to the extradition of one citizen from another country appear to have forgotten that the rule of law does equally apply to the process of extradition from Nigeria.
3. The extradition process in Nigeria is governed by the Extradition Act, CAP E25, LFN, 2004; The Extradition Act (Modification) Order, 2014; and the Federal High Court (Extradition Proceedings) Rules, 2015.
4. Another mechanism for bringing fugitives to justice is through the agency of ‘Mutual Legal Assistance’ which though is different from ‘extradition’ is another window through which the surrender of a criminal/suspect can be activated. Instructively, there is a Mutual Legal Assistance Treaty (MLAT) between Nigeria and US, with obligations which include location of a person of interest, service of procedural documents and judicial decisions.
5. Extradition is not automatic, so also are there restrictions/limitations to assistance. The procedure with respect to extradition runs from the receipt of a request, to processing by the Attorney General who will file an application before the court to which the fugitive can file a counter-affidavit. Apart from the grounds outlined, founded around political, military offences, etc., there are also restriction clauses in the MLAT which describes circumstances under which assistance may or must be refused.
5. The point being made is that not only is that it is erroneous to assume that because a charge has been laid or a request made, a surrender must automatically follow. That is not the case in any part of the world, except where arbitrariness rules. Among other things, if the offence is considered ‘trivial’, the request can be refused.
6. It needs to be noted that when a fugitive is extradited, the person is liable to be prosecuted for ONLY the specific charges as stated in the documents backing the request. There is an immunity from prosecution for ALL acts or convictions that preceded the person’s departure from the requested state other than those specified in the documents served.
7. Also, the person cannot be incarcerated for service of any other sentence, if set free from the one charged, if he takes advantage of the 15 days of safe passage to leave the country.
Contrary to what some have said, this was not some out-of-the-world investigation of Kyari, some talking about kyari being tracked by the FBI for one year. There is nothing in the documents to suggest that. Rather, it was an easy pick. The investigation/charges solely stem from conversations/interaction between Abass and Kyari, as let out out by the call log on Hushpuppi’s phone, and messages exchanged between them. Kyari’s digital footprints and visa application form only served to confirm his identity. The point is not that it invalidates or weakens the charge/evidence, simply making that clarification.
Kyari has been charged with conspiracy to commit the crimes of wire fraud and money laundering.
What is a criminal conspiracy?
It speaks to an agreement between two or more people for the purpose of committing a crime, following which an overt act is carried out in furtherance of THIS conspiracy.
As simple as that is, it can be complex, reason being that in the United States, whereas it is generally accepted that at least two people are needed to form a conspiracy, there is no consensus around whether both parties must have guilty minds for the charge to be sustained. While the unilateral approach states that only one person needs to have the intention of carrying out the criminal actions contemplated, the bilateral approach is of the mind that both parties to the conspiracy must be in agreement to commit the crime.
Indeed, in Pinkerton v. United States, it is the position that “members of the conspiracy are also liable for the foreseeable crimes of their fellows committed in furtherance of the common plot”. But that is based on the assumption that there is a conspiracy in the first place – an intention to agree on a plan to commit an act and achieve the criminal objective of the conspiracy.
The question that jumps out is this – Was there a COMMON PLOT between Kyari and Abass to commit wire fraud and launder proceeds therefrom? That will be up to the Prosecutor to establish and prove. His argument is this
“KYARI, a Deputy Commissioner of the Nigeria Police Force,
arranged the arrest of CHIBUZO at the request of ABBAS to prevent CHIBUZO from interfering in the scheme defrauding the Victim Businessperson. KYARI had CHIBUZO held in custody for a month and also facilitated payments from ABBAS to the Nigeria Police Force personnel who arrested CHIBUZO, in order to ensure
CHIBUZO’s continued arrest, thereby preventing CHIBUZO from notifying the Victim Businessperson of ABBAS’ and JUMA’s fraudulent scheme and preventing CHIBUZO from hijacking the scheme for his own benefit. KYARI’s knowing involvement in the scheme allowed ABBAS and JUMA to continue
defrauding the Victim Businessperson undetected and receive money obtained from the Victim Businessperson after it was laundered”
In other words, there was a common plot, a conspiracy to commit these two crimes for which they have been charged.
But these questions arise:
Was there the intent to prevent Chibuzo from interfering in the scheme to defraud or a show of force or punishment for an offence?
Did Kyari, for a fact, know of this intent, if there was?
Did he act in accordance with this intent or as he has submitted?
From the account in the complaint lodged, the plot had been on long before Kyari’s alleged ‘role’. The victim had made 2 payments in December. It would be up to the prosecutor to prove that the 3rd payment would not have been made if Chibuzo had not been in detention, even though he seemed to have retraced his step back to Abbas, after reaching out to the victim, perhaps having not succeeded on his own.
Even if the action allegedly carried out by Kyari was instrumental, would that not qualify more as aiding and abetting, like an accessory, rather than a part of a conspiracy as has been charged? Except there is more to what has been let out. But then he cannot be charged outside of what is so indicated in the documents upon which a possible surrender will be predicated, which is what is in the public domain.
Indeed, there has always been a lot of questions around ‘criminal conspiracy’. To Francis B. Sayre, “a doctrine so vague in its outlines and uncertain in its fundamental nature as criminal conspiracy lends no strength or glory to the law; it is a veritable quicksand of shifting opinion and ill-considered thought.” (Criminal Conspiracy, 35 HARV. L. REV. 393, 393 (1922) as quoted in Neal Kumar Katyal, Conspiracy Theory, 112 YALE L. J. 1307, 1310 n. 6 (2003) as quoted in Federal Conspiracy Law – A Brief Overview, by Charles Doyle, Congressional Research Service).
“And as wherever two or more have united for the commission of a crime there is a conspiracy, the opening to oppression thus made is very wide indeed. It is even wider if success should be held not to merge the conspiracy in the crime intended and achieved.” (Hyde v. United States, 222 U.S. 347, 387 (1912) (Holmes, J, with Lurton, Hughes & Lamarr, JJ.) (dissenting), as quoted in Neal Kumar Katyal, Conspiracy Theory, 112 YALE L. J. 1307, 1310 n. 6 (2003) as quoted in Federal Conspiracy Law – A Brief Overview, by Charles Doyle, Congressional Research Service).
To Francis B. Sayre, “a doctrine so vague in its outlines and uncertain in its fundamental nature as criminal conspiracy lends no strength or glory to the law; it is a veritable quicksand of shifting opinion and ill-considered thought.” Criminal Conspiracy, 35 HARV. L. REV. 393, 393 (1922) as quoted in Neal Kumar Katyal, Conspiracy Theory, 112 YALE L. J. 1307, 1310 n. 6 (2003) as quoted in Federal Conspiracy Law – A Brief Overview, by Charles Doyle, Congressional Research Service.
So, with the charge being that of conspiracy, it is not cut and dry, as some have laid out, based on the fact that this is an investigation/complaint by FBI. The charge of conspiracy, to me, will not be an easy one for the prosecutor to prove, even though the fact that Kyari is a senior and well-trained police officer, might not be of much help in his argument.
But then, what the charge sheet has let out is most likely only a part of the conversations between the two men that the Prosecutor would have adjudged as helpful to his case. It is not impossible that there might have other conversations and messages which might help the defendant (Kyari) to make a case that he was not a part of the plot or conspiracy to commit the said crimes. That window is there.
I think the charge of conspiracy, strictly on the basis of the document available, is a bit of a stretch to prove. Perhaps, a charge of aiding and abetting might be an easier one to prove. Not that it would make things easier for the defendant, though. But it is back home that he is exposed to a greater jeopardy, in view of what has been alleged and that which he is admitted to. There are no ways to dice this, the road ahead is a lonely and long one for the cop.
However, there are two levels to engaging this matter. At the level of possible extradition here and point of trial over there. The MLAT between Nigeria and USA, however opens a window. It provides a window for the person of interest to voluntarily travel to US for the sole purpose of resolving the matter. That is the advisable route to take in this case.
* This is purely a speculative, academic exercise akin to others I often challenge myself to.