‘The strange thing is I don’t know where I am,” said Nigel Potter, the British executive now known to the American authorities as prisoner 05350 070.
Three years ago Potter was the chief executive of Wembley, the leisure group. Respected and well liked in the business community, he entertained royalty and sports stars and lived comfortably in the home counties.
Now the company he ran has been liquidated, chased into extinction by the American legal system, and Potter is serving a three-year sentence for attempting to bribe a government official — a sentence he is appealing against and a crime that even the prosecution admits never took place.
“Anybody who knows Nigel knows he is incapable of doing something like this,” said Sir Francis Mackay, chairman of the catering giant Compass. “It’s a terrible injustice.”
Potter’s plight has come to symbolise the potential nightmare British business people face doing business in America.
The American legal system is increasingly spreading its reach overseas. And, thanks to tough extradition laws, it is now fairly easy for the Americans to seize British businessmen accused of wrongdoing.
Looking pale and thin, Potter, 59, is putting a brave face on his situation. “I don’t know why this happened to me. There must be a reason, I just can’t see it,” he said, speaking for the first time from Allenwood prison, close to the Allegheny mountains in Pennsylvania. Potter can see the foothills from behind the razor wire but until recently had no real idea what they were.
He arrived at night in the back of a van last November after surrendering to the American authorities at Boston airport, an eight-hour drive away.
Opposite the prison is a zoo — Clyde Peeling’s Reptiland. One of Potter’s friends mentioned it in a letter, but he thought it was a joke he didn’t quite understand.
The whole case has felt like that for Potter, like a long, very black joke.
AS chief executive of Wembley he earned £275,000 a year. Now he makes about $15 a month teaching inmates “parenting skills” and helping them study for the General Education Diploma.
Potter has been shocked by the seedy underside of American life. English speakers are in the minority and education poor — some inmates have never heard of England. There are few white prisoners, and those that are jailed are assumed to be paedophiles by the other inmates. Fortunately, publicity about Potter’s trial meant he was not mistaken for a child abuser.
The talk is of drugs, gangs and violence. Families are broken, jobs are scarce. One of the students in Potter’s parenting class is a 28-year-old grandfather. Most prisoners are on their second sentence and expect to be back.
Winston Churchill said you could judge a society by the way it treats its prisoners. “America doesn’t care about these people,” said Potter.
“There is no interest in teaching people something here,” he said. In return, the prisoners have no interest in learning. They snore and talk through classes. “Education is seen as a white thing,” he said.
For many life on the outside is so rough that Potter said the prison joke is that the razor wire is to keep families out rather than prisoners in.
But for Potter the lack of freedom is a torture. Just seven months into his sentence he is struggling to cope with the boredom and frustration of life inside.
Every hour is regimented. Any movement outside the prison’s daily activities means a strip search and handcuffs.
He was recently checked for a return of kidney cancer (he lost one kidney to the disease). Potter was kept in shackles for the clinic visit and even while undergoing the scan, his hands and feet were kept in irons.
His one treat is getting his washing done by a fellow inmate. Smoking is banned and packets of mackerel have replaced cigarettes as an unofficial currency. The prison store sells them for $1.15. Some prisoners live off mackerel rather than eat the prison food. Two packs a week means Potter does not have to risk his washing getting lost or burned in the prison laundry system.
When he arrived Potter was issued with a set of trousers, socks, shirts and boots. Half his wardrobe promptly went missing. New clothes fetch good mackerel prices. Not wanting to cause trouble, Potter decided to tell the guards his items were missing.
“‘You’re a liar,’ they said,” Potter’s heart sank. He said it was at that moment that the reality of his new life sunk in. “I am not used to being called a liar.”
A quiet, mild-mannered man, Potter has kept out of trouble. Security is tight at Allenwood. When the fog rolls in off the mountains, prisoners are counted every hour. So far Potter has avoided drugs or violence and he has learnt to steer clear of trouble spots.
“The TV room is very territorial,” he said. In the winter people put hats on the chairs to let you know whose seat is whose. In the summer, it’s a guessing game and one that could provoke a fight.
Mostly he reads and writes letters. The Sunday Times is “his lifeline”, he said. The paper is sent from England and sometimes gets delayed so that three papers arrive in one go.
“My friends joke that I’m lucky to have the time to read it all the way through,” he said.
He has two big fears. The first is for his family and the second for himself. His eyes reddened as he talked about how his family is coping without him.
An accountant by training and nature, Potter is fretting about how his wife Joanna will cope with this year’s tax return. His accounts are more complex than ever after selling his shares in Wembley and rearranging his finances to take care of his family. Potter said he has plenty of friends who would willingly help but he doesn’t want to ask. Nor does he want his friends visiting.
“It’s such a bother,” he said. “It’s just too far to come.” Another reason, he said, is that it is just too hard to say goodbye. On leaving the visitors’ room he will be strip-searched once more in a sad reminder of how far removed he is from his old life. His wife has visited twice and both said the second time was even harder than the first.
His father was ill with cancer recently and his eldest son Oliver, 25, is planning to get married. He has said he will wait until his father is free.
“But he has got to get on with his own life,” said Potter.
His second fear is a transfer to a state prison. Allenwood is a low-security facility. Potter’s fellow inmates disappear on a weekly basis and many are transferred to state penitentiaries where his fellows tell him conditions are much worse.
Several factors, including his appeal hearing, could trigger a transfer. Potter’s greatest fear is that his American nightmare is about to become even grimmer.
LINCOLN PARK on Rhode Island is a “racino” — the term for a racetrack with slot machines. The greyhound track bills itself as “New England’s premier gaming destination” but is probably most famous for inspiring the name of the American rock band Linkin Park.
As a venue it is a world away from the glamour of Wembley but it was to here that Potter’s company turned for profits after the sale of England’s iconic national football stadium.
Gambling is a highly regulated and sensitive business in America, as it is in Britain, and involves a lot of legal work.
The Potter case stemmed from allegations that in 2000 and 2001 he and Dan Bucci, the general manager of Lincoln Park, conspired to bribe John Harwood, a former speaker of the Rhode Island state house of representatives.
Harwood is the cousin and partner of Lincoln Park’s lawyer in a Rhode Island law firm. Prosecutors told the court that Bucci had proposed to pay this firm a “bonus” of up to $4m (£2.3m) — allegedly to get state approval for another 1,000 gaming machines at Lincoln Park and to help block plans for a rival casino.
Harwood had excluded himself from any decisions that might affect Lincoln Park, however. Before the prosecution started, he said he had never known about the bonus scheme. Nor was the $4m ever paid.
The case against Potter hung on whether he approved Bucci’s bonus proposal. He is not able to discuss his case, but his defence team argues that he was jailed because of a simple cultural misunderstanding. Potter found the more voluble and excitable Bucci difficult to deal with, the lawyers say. He didn’t want to strain their relationship by saying no to the bonus scheme but at the same time he had no intention of proceeding without assessing the possible legal implications of the sensitive payment.
To keep Bucci happy, say Potter’s lawyers, he resorted to the very British talent for polite but meaningless language. In faxes to Bucci, Potter wrote he was “minded” to look at the plan and that “in principle” it was an idea they could proceed with.
While Potter stalled Bucci, lawyers, auditors and Wembley’s board all analysed the proposed payment. Having taken all these soundings, Potter decided not to proceed with the payment.
He then heard from federal prosecutors that they were investigating the proposed payment after being alerted by disgruntled employees.
Believing in his innocence, he voluntarily opened Wembley’s files to the American authorities. But, in the wake of the spectacular collapse of Enron, business executives had become public enemies.
In 2003 Potter and Bucci were indicted for wire fraud and conspiracy to bribe a government official. The charges came months after the British government had signed a new extradition treaty with America designed to bring suspected terrorists to justice. Potter said the treaty — and his strong belief in his innocence — made him less willing to fight his case from Britain, as other executives have done. Had he fought extradition and lost, he would have been taken to America in chains and jailed while awaiting trial.
Last year he went to America voluntarily to clear his and the company’s names. The first trial ended in a split jury. Prosecutors brought a second trial and last August Potter and Bucci were found guilty of three charges of wire fraud. Bucci is now serving three years and five months and is also appealing against his sentence.
Jean Rosiello, of Potter’s law firm MacFadyen, Gescheidt & O’Brien, said they had not found a single American case similar to Potter’s and Bucci’s. She is arguing this is a “case of first impression” — potentially setting new law for America.
“We have found no other example where the government has prosecuted a discussion at such an early stage,” she said and added that it was a “potentially dangerous” precedent to set for businesses.
An appeal hearing is likely in July or August. Potter’s supporters, including his local Windsor MP, Adam Afriyie, are lobbying for him to be returned to Britain and have set up a website (www.justice4nigelpotter.com) to build support. But the odds of acquittal are small. Most appeals fail, say the lawyers.
In their appeal brief, Potter’s prosecutors said it was irrelevant whether Harwood was aware of the bonus scheme. “What matters is that defendants plainly anticipated that obtaining Harwood’s influence would be money very well spent,” they wrote. They said Potter’s argument for a cultural misunderstanding “does not dignify a response”.
This would come as no surprise to Potter. Initially he thought being British might help his case. “I guess that was naive. There is no special relationship as far as I can see,” he said.
The only thing being British gave him was a nickname, the inevitable “Harry Potter”.
“I don’t get called that any more. Now even that has gone,” he said.
How America uses our law
THE UK’s 2003 Extradition Act was intended to make it easier for foreign nationals — especially terrorists — to be brought to justice in the countries where they had committed their crimes.
Under the law, American authorities are not required to present a prima facie case. They must prove only that the defendant has been indicted for a crime that is punishable in both countries by a sentence of at least 12 months.
The offence must be a crime under English law. Extradition could be granted for charges of fraud, insider dealing, tax evasion, bribery or health-and-safety offences that lead to fatal accidents. So far the majority of extraditions have been for financial crimes.
The treaty has not been ratified by the United States, meaning a far higher burden of proof is required to extradite an American to Britain. Sir Digby Jones, director-general of the CBI, has accused the American government of abusing the justice system. ‘America is being an ignorant bully,’ he said.
Four British executives are now fighting extradition under the act. They are:
- Ian Norris, 63, the retired chief executive of Morgan Crucible. America is seeking to extradite Norris for allegedly conspiring to fix the price of carbon products between 1989 and 2000. The alleged crime was not a criminal offence in Britain until June 2003. Most of the alleged wrongdoing happened in Britain.
- The ‘NatWest Three’, David Bermingham, Gary Mulgrew and Giles Derby, former executives at NatWest bank accused of conspiring with Enron executives to defraud NatWest of $7.3m. They maintain their innocence and British authorities have not pressed charges even though the alleged victim is a British financial institution.
