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United States v. Catino

decided: May 24, 1984.

UNITED STATES OF AMERICA, APPELLEE,
v.
ALFRED CATINO, DEFENDANT-APPELLANT



Alfred Catino appeals from his conviction for failing to appear to begin serving a sentence, 18 U.S.C. § 3150, and for using an American passport obtained under a false name, 18 U.S.C. § 1542, entered June 4, 1983, in the Southern District of New York, Gagliardi, J. The indictment for failure to appear was filed within the period set by the statute of limitations, and venue over the passport charge lay in the Southern District. Affirmed.

Lumbard, Newman, and Pratt, Circuit Judges.

Author: Lumbard

LUMBARD, Circuit Judge:

Alfred Catino appeals from his conviction entered June 4, 1983, in the Southern District of New York, Gagliardi, J., following his conditional guilty plea. Catino pleaded guilty to two counts: failing to appear on March 17, 1975, to begin serving a jail sentence imposed on a prior conviction, in violation of 18 U.S.C. § 3150; and, while a fugitive in France, using an American passport issued in a false name, in violation of 18 U.S.C. § 1542. The district court denied his motion to dismiss the bail jumping charge as time barred, and his motion to dismiss the passport violation charge for lack of venue. We affirm.

I.

In January, 1974, Catino was convicted by a jury in the Southern District on two counts of narcotic law violations before Judge Pollack, who sentenced Catino on February 26, 1974, to two concurrent twelve year terms of imprisonment, to be followed by a special parole of six years, and $25,000 fine. Catino was released on a $50,000 appellate bond pending appeal.

On December 13, 1974, we affirmed Catino's conviction by order. Catino was instructed to surrender on March 17, 1975, to begin serving his sentence. When he failed to do so, Judge Pollack issued a bench warrant for his arrest.

On August 12, 1976, while still a fugitive, Catino applied for, and was issued, a United States passport in Boston under the name Frank Anthony Casta. He immediately used the passport to travel in and out of France.

In February, 1977, Catino was indicted in the Eastern District of New York for importing heroin into the United States from France, and for conspiracy to import heroin, in violation of 21 U.S.C. §§ 952(a), 963. At the same time, French police informed the United States Drug Enforcement Agency (DEA) that they had discovered Catino in Le Havre, in the presence of another suspected narcotics dealer.

Upon being informed of Catino's whereabouts, the United States Attorney in the Southern District requested, through diplomatic channels, that French police provisionally arrest Catino on Judge Pollack's outstanding bench warrant pending a formal extradition request. On March 4, 1977, before such provisional arrest was made, however, the French police, under French law, arrested Catino, along with four other men carrying two kilograms of heroin, and seized Catino's passport. Two weeks later, the French government detained Catino pursuant to the Southern District's request for provisional arrest, pending a formal proceeding.

While in French prison awaiting trial, Catino wrote to, and was visited by, officials from the United States Attorney's Office and the DEA. Although there is no record in the Justice Department's files showing that Catino formally consented to extradition, he did at the time indicate his desire to return to the United States.*fn1

Contemplating that French authorities would not return Catino until after his prosecution in France was complete and he had served his prison term, if any,*fn2 the United States, on April 27, 1977, applied to withdraw its earlier request for Catino's provisional arrest and indicated it would renew the request at a later time. On May 16, 1977, Catino was freed from the detainer for extradition. The next day, however, a DEA agent visited Catino in prison and told him that despite the withdrawal of the detainer, the United States would seek extradition again after the resolution of the then pending French charges.

Over the next few months, Catino had a change of mind. On October 7, 1977, he wrote to the United States Embassy in Paris, stating that the United States was "divested of all legal jurisdiction over my person" because it had allegedly delayed extradition proceedings until after the French police arrested him on their own charges.

Ten days later, on October 17, the United States formally requested Catino's extradition, based on the February 1977 narcotics importation indictment filed in the Eastern District of New York. Catino opposed this request in proceedings before a French tribunal, which deferred ...


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