British Columbia’s highest court has ordered a new extradition hearing for local businessman Mark Wilson. The unanimous decision is the climax of Mr. Wilson’s 12-year David-and-Goliath battle with a particularly hard-nosed prosecutor in the United States. The prosecutor, Ellyn Marcus Lindsay, has been dubbed the Cobra Queen by the press because she heads up Operation COBRA (short for “County of Orange Boiler Room Apprehension”), initially formed to root out Canadian-based telemarketing lottery scams directed against residents of California. But the glory the Cobra Queen justly earned from prosecuting lottery scams in California is overshadowed by the pure poison of her obsessive persecution of Mr. Wilson.
The evidence that Mr. Wilson sought to admit might have impeached the reliability of the ROC. Since he was denied a meaningful opportunity to challenge the ROC, he was denied a meaningful judicial process, and his s. 7 rights were infringed. A new extradition hearing is directed….
U.S.A. v Wilson, B.C. Court of Appeal, December 16, 2011
At the turn of the millennium, Wilson’s companies were at the cutting edge of the direct marketing industry, employing more than 1,700 people and generating upwards of $100,000 in revenues a day. They supplied a credit card registration service and advice on avoiding fraud and identity theft. Many banks and credit card companies now offer these services at prices comparable to the $299 for ten years’ protection offered by Mr. Wilson.
News of the service went viral long before that concept was widely understood. Tens of thousands of customers signed up, indicating that they saw a need for the protections offered. Mr. Wilson’s companies scrambled to keep up with demand.
Naturally, not all of the estimated 120,000 customers were satisfied with the product. Those who complained that the service was not what they had expected received a full refund or had the charges to their credit cards reversed. A few of the complaints came to the attention of COBRA – and the police.
One particularly eager RCMP officer, Constable Trevor Dusterhoft, rather than going through Canadian channels, took it upon himself to feed information about Mr. Wilson’s enterprises to FBI special agent Scott Gicking, a COBRA team member who visited Vancouver early in 2000. They obtained a court order allowing the RCMP to seize all Wilson’s office equipment, computers and customer files and freeze all his accounts. The COBRA team obtained customer lists from the search, and over the next several years systematically combed through them, phoning hitherto content customers in California to tell them that they had been “scammed” and asking them to assist in the “investigation” of Wilson and his companies.
As news of the raid spread, the demand for refunds increased. Thus the position of COBRA and the RCMP appeared to be legitimized in a sick form of self-fulfilling prophecy. They used these stacked statistics against Wilson.
It is telling that not one other state, and no province in Canada, has initiated criminal proceedings against Mr. Wilson. Only Orange County, California.
The Cobra Queen used the fact that she was able to find a dozen unhappy customers above the age of 55 to claim that Mr. Wilson and his companies had “targeted the elderly” – which automatically adds three years to any potential sentence. In fact, fewer than 6% of the consumers who bought Mr. Wilson’s products and services were seniors, and Mr. Wilson had given strict instructions to telemarketers not to sell his products to anyone over 75 – anyone truly “elderly”.
Canadian Extradition Law: The Hassan Diab Case
A few “complainants” (significantly, all had received refunds) alleged that telemarketers had told them that they represented their banks. This would have been a direct departure from the sales scripts used by Mr. Wilson’s telemarketers. Every telemarketing sale was verified by a supervisor, who made it clear that the telemarketer did not represent the individual’s bank or credit card company. This “verification” part of the telemarketing transaction was recorded.
It was clear from the sales scripts and recordings that the complainers had either mis-heard, misremembered, misunderstood or misrepresented what they had been told by the telemarketers.
Either that, or they had been misquoted.
Obviously the actual recordings of the verifications would be more reliable than the recollections of elderly complainers testifying years after the event. Yet in requesting the extradition of Mr. Wilson in 2007, Ms. Lindsay and her team ignored the verification aspect of the complaints.
It is a truism that prosecutors in the United States often distort the facts to fit their theories. Unfortunately, owing to a series of judgments in Canadian courts of appeal, extradition judges are required to accept that the summary of evidence supplied by foreign prosecutors is reliable. In most cases, this is the only evidence judges require to commit for extradition.
American prosecutors are of course aware of this Achilles’ heel of the Canadian judicial system. In extradition requests, they are quick to use Canadian judicial naiveté to their advantage, exaggerating where necessary, leaving out crucial exculpatory details, making connections where there are none and sometimes even seeding the summary with evidence that is factually false.
Ms. Lindsay has publicly railed against the Canadian judicial system for being tardy in extradition matters (although she praises the RCMP, upon whose leaked evidence she has regularly relied). In Wilson, her blatant indictment of the Canadian judicial system apparently had its desired effect: so concerned was the judge in thinking that extradition must be “expeditious” rather than fair and just that he did not allow Mr. Wilson to lead any evidence – even the verification part of the phone calls.
That was the error of judgment identified by the B.C. Court of Appeal on December 16, 2011: Mr. Wilson should have been allowed to lead verification evidence which potentially rebutted the complaints relied upon in the blanket assertions in the summary of evidence – evidence which the Cobra Queen had “certified” was in her opinion adequate to take Mr. Wilson to trial.
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