Stay of Proceedings Denied 1.31.2005

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: AG of Canada on behalf of the U.S.A. v. Graham 2005 BCSC 279

Date: 20050131
Docket: 22296
Registry: Vancouver

Between: The Attorney General on Behalf of the United States of America Respondent And: John Graham Applicant

Before: The Honourable Madam Justice Bennett Ruling on an Application to Stay Proceedings January 31, 2005.

Counsel for Respondent D.J. Strachan, J.G. Johnston
Counsel for Applicant T.E. La Liberte, Q.C.G. DelBigio

Place of Trial: Vancouver, B.C.

[1] THE COURT: Mr. Graham is sought to be extradited to the United States of America ("U.S.A.") for the first degree murder of Anna Mae Aquash which is alleged to have occurred some 30 years ago.

[2] Mr. Graham brings an application for a stay of proceedings submitting that the reasoning in United Kingdom of Great Britain and Northern Ireland v. Tarantino (2003), 177 C.C.C. (3d) 284, 2003 BCSC 1134, applies to his circumstances.

[3] In Tarantino, Justice Stromberg-Stein found that there was cogent evidence that the conduct of the requesting state fell so far below an expected reasonable standard that there was a complete failure of due diligence. She not only found that the presumption of reliability of the certification fell, but that the evidence established that it was the clearest of cases of an abuse of process and entered a stay of proceedings. A person sought is entitled to a fair extradition hearing and a remedy for the breach of that right may be a stay of proceedings.See United States of America v. Cobb, [2001] 1 S.C.R. 587, 2001 SCC 19.

[4] In Tarantino, there were three separate records of the case certified by the requesting state. In the first two, the requesting state was aware that witnesses had either died or absconded. The third record was certified without knowing whether a certain witness was available. Evidence of the deceased and absconding witnesses were deleted in the third record, and Justice Stromberg-Stein assumed that this evidence was not otherwise available.

[5] Mr. Graham has filed evidence in his application which he submits undermines the validity of the certification of this case.

[6] I will deal with each challenge individually, keeping in mind the cumulative effect of the evidence filed on the argument with respect to the abuse of process.

[7] Mr. Graham submits that there are inaccuracies in the record of the case that cast doubt on the entire document justifying a stay of proceedings. Mr. Graham submits that the facts in his case are as serious or worse than those in Tarantino. The foundation for the argument is as follows: Mr. Graham submits, firstly, that the evidence of three witnesses, Al Gates, Arlo Looking Cloud and Frank Dillon, has not been accurately reflected in the record of the case.

[8] Mr. Al Gates' evidence was certified as available for trial by Robert E. Mandel, Assistant U.S. Attorney, on January 26, 2004. In fact, Mr. Gates unfortunately passed away on August 22, 2003.

[9] In a letter, dated December 10, 2004, Mr. Mandel states that he last confirmed that Mr. Gates was alive and available as a witness when the indictment was returned in March of 2003. He states that there was "no reason to believe his demise was imminent." Mr. Gates was approximately 80 years old.

[10] The U.S.A. says that it will not rely on the evidence of Mr. Gates. The U.S.A. may withdraw evidence. However, the fact of the possible incorrect certification remains. I say "possible incorrect certification" in that the certification is that the evidence is "available for trial" and that the witness is able to testify are not necessarily the same thing. See, for example, U.S.A. v. Freimuth (2004), 183 C.C.C. (3d) 296, 2004 BCSC 154 and U.S.A. v. Yang (2001), 56 O.R. (3d) 52 (C.A.) at para. 67. For example, in Canadian law, hearsay evidence is admissible if it meets certain legal criteria.

[11] However, the evidence has been withdrawn, so it will not be part of the evidence implicating Mr. Graham.

[12] Next, Mr. Graham submits that the evidence of Mr. Arlo Looking Cloud has been misrepresented.

[13] Mr. Looking Cloud was also charged with the murder of Anna Mae Aquash. His trial was last year and he was convicted of her murder.

[14] In the record of the case, Mr. Looking Cloud's evidence is stated as follows: Fritz Arlo Looking Cloud is a co-defendant in this case who will be tried separately from Graham. He is expected to testify that in late November or early December of 1975, Aquash was taken from Troy Lynn Irving's residence in Denver, Colorado, in a Ford Pinto station wagon by John Graham, a/k/a John Boy Patton, Theda Clark, a/k/a Theda Nelson, and himself, and that Aquash was placed in the back of the station wagon. He is further expected to testify that they drove all night from Denver, Colorado, to Rapid City, South Dakota, and that Aquash was kept at a house in Rapid City until the next evening, when she was placed back in the vehicle and the same individuals then drove down to Pine Ridge. He recalled going to a house and staying outside with Aquash while Clark and Graham went inside the house. After that, when they were heading towards Kadoka, South Dakota, (just north of Wanblee, South Dakota), they stopped by the side of the road. Looking Cloud recalled that Aquash was praying and then was shot in the back of her head by Graham. The gun used was a small, silver .32 revolver. Looking Cloud then took the gun from Graham and fired the rest of the rounds in it into the ground.

[15] Mr. Graham has filed two affidavits of legal assistants that touch on this evidence.

[16] The affidavit of Margaret Freeman appends one affidavit and one interview. The affidavit is that of Mr. Terry Gilbert, Mr. Looking Cloud's attorney on appeal. He deposes that Mr. Looking Cloud does not want to testify and his lawyer has advised him not to testify in any proceeding involving John Graham and the United States. Mr. Gilbert expects Mr. Looking Cloud would assert his privilege against self-incrimination.

[17] During the Grand Jury hearing on October 19, 2004, relating to the Aquash matter, Mr. Looking Cloud refused to testify even though he was ordered to do so.

[18] The internet interview is from the Dakota-Lakota-Nakota Human Rights Advocacy Coalition. The interview was conducted by Mr. David Seals with Mr. Looking Cloud after Mr. Looking Cloud's conviction and before sentencing.

[19] Mr. Looking Cloud had, according to the interview, given the police a videotaped statement implicating himself and John Graham. The interview states that Mr. Graham is a Canadian Native awaiting extradition to South Dakota.

[20] In the interview with Mr. Seals, Mr. Looking Cloud said that he was drunk and he said the police gave him alcohol and drugs, including heroin.

[21] Mr. Seals asked Mr. Looking Cloud about other witnesses who testified at his trial implicating both Mr. Looking Cloud and John Graham. Mr. Looking Cloud told Mr. Seals that all of the witnesses had lied.

[22] The next affidavit appends a news report by a local reporter, Terry Donnelly. It is a short report of comments purported to be made by Terry Gilbert stating that the FBI tricked Arlo Looking Cloud into testifying against Mr. Graham. Mr. Gilbert does not make any reference to this in his affidavit.

[23] There are two aspects of this evidence I am asked to consider. The first is that the unsworn interviews suggest that the U.S. government has used unconscionable methods to obtain Arlo Looking Cloud's statement.

[24] Assuming that these reports are admissible, and even assuming that the contents are true, they are irrelevant to the issue that I have to decide. My jurisdiction is limited to whether there is a prima facie case, including evidence of identification, and a fair extradition hearing.

[25] What occurred in the investigation in the United States is not relevant to whether a prima facie case has been established. The evidence does not touch on the fairness of this hearing. See, for example, in Cobb , supra, where the conduct of the U.S. prosecutor did affect the fairness of the extradition hearing in Canada.

[26] These matters may, of course, be brought to the attention of the Minister of Justice if, in fact, Mr. Graham is found to be the person sought and a prima facie case has been established.

[27] The second aspect is the fact that Mr. Looking Cloud says he will refuse to testify at Mr. Graham's trial. That may be so, but the statement that he is "expected to testify in the summary of his evidence" is not a certification that he will testify. The certification states that his evidence is available.

[28] In Canada, the videotaped statement might well be admissible under the principles of R. v. K.G.B., [1993] 1 S.C.R. 740. It is not for me to analyze the law of evidence of South Dakota to determine whether the evidence is admissible without Mr. Looking Cloud's actual testimony once the evidence is certified as available. Further, the fact that Mr. Looking Cloud now asserts that he will not testify does not demonstrate any carelessness or lack of diligence by the requesting state.

[29] The next issue is the evidence of Frank Dillon. Mr. Dillon's evidence from a Grand Jury hearing in 1994 was filed as an exhibit. He deposes he knew John Boy Patton, also known as John Graham, and Anna Mae Aquash. He said John Boy Patton told him they had to "move an informant." He did not recall at that time Mr. Patton saying "off" an informant.

[30] Mr. Dillon denies in the transcript any more knowledge of what occurred to Anna Mae Aquash other than some conversations he had with Troy Lynn Irving where Ms. Irving had said that Ms. Aquash had been taken from her house after a large meeting and that she was possibly raped before she was killed.

31] Frank Dillon's evidence is summarized as follows in the record of the case: Frank Dillon had a relationship with Troy Lynn Irving at the time surrounding this incident and at different times lived at her house. He is expected to testify that John Boy (Graham) would often come over to his house in Denver and visit. In December 1975, John Boy came over to his house when John Boy had been drinking. At that time, John Boy told him, "We had to move an informant. We had to off her." Dillon was also present when John Boy told Troy Lynn that "they," meaning law enforcement, found the body and he observed Troy Lynn start to cry at that time. Dillon is further expected to testify that in 1976 Graham told him that he put a gun to the back of Aquash's head and shot her. Graham then told Dillon that the gun was then placed in a plastic bag and hidden under a bridge somewhere in the Wanblee, South Dakota, area. Graham also told Dillon that Theda Clark was with him when they moved Aquash. When Graham was telling Dillon about what he had done, he seemed to be proud of it. Dillon is further expected to testify that in February, 1976 he, Clark and Graham travelled from Denver to the Rosebud Indian Reservation to the house of Bill Means. Dillon overheard Means state to Theda Clark, "Last time you were here you had a pig with you." Dillon understood this reference to mean Aquash was with her and was as an informant. Dillon will testify that the reason he didn't come forward with this information on previous occasions was because of fear of his personal safety and for the safety of his children.

[32] Much was made of the suggestion that Mr. Dillon is expected to say that he did not come forward before out of fear. The defence submits that Mr. Dillon did come forward in 1994. What is overlooked by the defence is the statement that he "did not come forward with this information." There is no mention of a confession by Mr. Graham to Mr. Dillon in the 1994 transcript. I do not see how this transcript, when compared with the summary of the record of the case, is in any way misleading, careless or does not reflect due diligence.

[33] Next, the defence has also filed the affidavit of Mr. Leonard Peltier.

[34] Mr. Peltier was extradited from Canada a number of years ago for the murder of two FBI agents. I add that there is no evidence of that fact, however, the case was well-known at the time.

[35] Mr. Peltier deposes: I, Leonard Peltier, of Leavenworth USP, in the City of Leavenworth, in the State of Kansas, hereby make oath and say as follows that sometime in or about 1998 or 1999, Robert Branscombe and his wife visited with me here at the Leavenworth penitentiary. Branscombe stated that he was investigating the death of Anna Mae Aquash and he had a proposition to make to me. About this time, Shannon got up and went to the bathroom. Branscombe said he was working with Ecoffey and the Denver police, including Abel Alonzo. He asked if I would help in their investigation. I told him that I knew nothing about her death, so how could I help them. I told him I suspected the FBI had some involvement because of records I had seen. Branscombe told me that they were after the leadership of AIM, including Dennis Banks and Vernon Bellecourt. I repeated I knew nothing and did not believe they were involved. Branscombe said that because of my credibility he had spoken with the U.S. attorney who had indicated that they could help me get out of prison if I cooperated. I asked him whether they wanted me to lie and become another Myrtle Poor Bear. Branscombe replied that, "We can help you. All you have to do is name names and testify against the leadership." I repeated that I would never lie and become a Myrtle Poor Bear like the government did to me. I told him the visit was over and I refused to say anything else to him.

[36] The defence asks me to infer that Robert Branscombe is an agent of law enforcement. There is no evidence other than the affidavit, and another document to which I will refer shortly, relating to the identity of Robert Branscombe. However, Mr. Peletier said Mr. Branscombe referred to working with "Ecoffey" and the Denver police, including Abel Alonzo. Mr. Ecoffey was one of the people who investigated the Anna Mae Aquash murder.

[37] The defence says that this affidavit demonstrates that U.S. law enforcement tried to convince Mr. Peltier to lie in exchange for favourable treatment.

[38] I have also had presented to me a paper that suggests that in 2000 Mr. Graf, who is the FBI agent who apparently summarized the evidence for the record of the case, interviewed Mr. Branscombe.

[39] Even if I drew all of the inferences the defence asks me to draw, (and I add parenthetically that I do not draw the inference that Mr. Branscombe was an agent of law enforcement, nor do I infer that he was trying to get Mr. Peltier to lie), and concluded that there had been some nefarious or underhanded or inappropriate activity in 1998 or 1999, it is irrelevant at this stage of the proceedings. The affidavit does not suggest that anyone tried to falsely implicate Mr. Graham, nor does it affect my assessment of the case against Mr. Graham.

[40] It has been stated a number of times that I cannot weigh the evidence, and I would refer to my ruling on the constitutional challenge for further expansion of the role of the extradition judge.

[41] In the context of whether there is an abuse of process, it is clear that the evidence does not affect the extradition hearing with respect to Mr. Graham. Again, these are circumstances that may be presented to the Minister of Justice, but they do not assist me in assessing whether or not there has been an abuse of process with respect to the proceedings against Mr. Graham.

[42] The next piece of evidence relates to two letters sent to Ms. Strachan, counsel for the U.S.A., on December 15, 2004, in response to a disclosure order I made in relation to some of the information in the record of the case. The defence submits that these letters demonstrate carelessness, a lack of due diligence, negligence and perhaps more serious misconduct on the part of the FBI.

[43] The first is a letter written by Special Agent Graf wherein he states his sources for information regarding, amongst other things, Mr. Graham's alleged aliases, his height and weight.

[44] The next letter submitted purports to be written by Mark T. Post and is signed by William Grode, both of whom appear by their titles to be senior to Mr. Graf.

[45] The letters are almost identical. It appears that the senior officials took Mr. Graf's letter, Mr. Grode signed it and sent it out under his name. It also appears that not much care was taken in changing the grammar from Mr. Graf's letter to that signed by Mr. Grode. Perhaps it was because the matter was done quickly. However, a comparison of the two letters obviously demonstrates what occurred.

[46] Mr. Grode signed Mr. Graf's letter without a careful proofread, careless perhaps, but far from egregious conduct. Nor do I draw the inference that this letter suddenly demonstrates a huge change in the record of the case and somehow suggests that Mr. Grode, in fact, did all of these things which Mr. Graf said that he did.

[47] Further, Mr. Graf explains the height discrepancy between 188 centimetres and 168 centimetres in the documents as an error not caught by proofreading. The issue of sufficiency of the evidence will deal with the question of the height discrepancy.

[48] In the context of whether there has been an abuse of process by the U.S.A., the only issue which raises any concern regarding the conduct of the U.S.A. in the preparation of the record of the case is the inclusion of the evidence of Mr. Gates some months after he died.None of the other submissions, for reasons already stated, call into question the certified record.

[49] I agree with the submission that Mr. Mandel was careless in not confirming that Mr. Gates was alive before he certified the evidence as available. However, this is not like the Tarantino case where the foreign authority knew that a witness had absconded and that another had died. Mr. Mandel states in his response that he was unaware of Mr. Gates' death until notified by Canadian authorities.

[50] The defence has submitted that documents are surfacing at the last minute. They have had the record of the case since January 2004. Much of the evidence in the record of the case was tendered at Mr. Looking Cloud's trial last spring, which is summarized in the Seals interview. I have not been told why documents are surfacing at the last minute when there has been considerable time to obtain information.

[51] I conclude that the evidence tendered does not reach the level of cogency required to show "a complete failure of due diligence"; see Tarantino, supra , at para. 46.

[52] I am alive to the law in Cobb, supra, and U.S.A. v. Shulman, [2001] 1 S.C.R. 616, 2001 SCC 21. Further, Yang, supra, Tarantino, supra, U.S.A. v. L.L. (17 November 2003), Vancouver 21006 (B.C.S.C.), Freimuth, supra, U.S.A. v. Licht (2002), 168 C.C.C. (3d) 287, 2002 BCSC 1151, and U.S.A. v. Cheema, [2004] B.C.J. No. 2198, 2004 BCSC 811, and all state that a proceeding may be stayed where the evidence establishes the "clearest of cases" of an abuse of process.

[53] In Freimuth and L.L., the courts found there was no abuse of process based on the analysis found in Tarantino. In Licht, the court stayed the proceedings based on the Cobb analysis. In Cheema, I did not find the evidence sufficient for a remedy of a stay of proceedings applying the Cobb analysis.

[54] In this case, the evidence does not establish that proceedings should be stayed either on the analysis in Tarantino or on the analysis set out by the Supreme Court of Canada in Cobb.

[55] The application for a stay of proceedings is dismissed.

"E.A. Bennett, J." The Honourable Madam Justice E.A. Bennett April 20, 2005. Revised Judgment Corrigendum to the Oral Ruling issued advising that the style of cause was incorrect. It should read: Attorney General of Canada on behalf of the United States of America v. Graham. This has now been amended.

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