Appeal from an order of the United States District Court for the Southern District of New York (Charles S. Haight, Jr., Judge) dismissing an indictment against defendant-appellee for failure of appellant to seek extradition in violation of defendant-appellee's sixth amendment right to a speedy trial. Reversed and remanded.
Kearse and Altimari, Circuit Judges, and Lasker, District Judge.*fn*
The government appeals, pursuant to 18 U.S.C. § 3731, from an order dismissing an indictment against defendant-appellee Michael Diacolios entered in the United States District Court for the Southern District of New York (Haight, J.). The indictment charged, inter alia, that defendant-appellee engaged in a conspiracy to defraud the United States by filing false claims for federal income tax refunds, in violation of 18 U.S.C. § 286, and engaged in federal mail fraud in connection with the filing of false claims for New York State income tax refunds, in violation of 18 U.S.C. § 1341.
In his motion to dismiss the indictment pursuant to Fed. R. Crim. P. 48(b), defendant invoked his sixth amendment right to a speedy trial, arguing that there was unnecessary and inexcusable delay in bringing him to trial. Defendant never raised any violation of his rights under the provisions of the Speedy Trial Act, 18 U.S.C. § 3161 et seq., but instead maintained that the government deprived him of his constitutional right to a speedy trial by failing to exercise due diligence in seeking his timely return to the United States from Greece. Relying on our prior decision in United States v. Salzmann, 548 F.2d 395 (2d Cir. 1976), the district court held that the government's failure to seek extradition of defendant constituted a lack of due diligence and, therefore, dismissed the indictment. Because we disagree with the district court's reading of Salzmann, we reverse and remand for the purpose of reinstating the indictment.
On February 3, 1984, an arrest warrant was issued for Michael Diacolios based upon a complaint, filed the same day, which alleged that on five occasions between February and April 1982, Diacolios mailed "short-form" tax returns to the Internal Revenue Service regional office in Holtsville, New York. The complaint alleged that the tax returns claimed refunds for the year 1981 on behalf of fictitious persons listed at the address of defendant's restaurant in Manhattan. Accompanying each of the tax returns was a W-2 wage statement which purported to show that federal income taxes had been withheld by various employers, some of whom also allegedly were fictitious. Although no federal refund checks were ever issued in connection with the filing of these tax returns, according to the government, defendant also falsified New York State income tax returns which resulted in defendant receiving five state refund checks. The complaint further alleged that defendant and his brother cashed the checks.
Defendant was indicted on June 29, 1984 and charged with conspiracy to defraud the federal government and with mail fraud. Diacolios never appeared to answer the charges because he had left the country before the arrest warrant was issued. On July 12, 1984, defendant did, however, enter a plea of not guilty before then Judge Sofaer through his attorney. At a pre-trial conference on August 27, 1984, the district court considered various motions filed by defendant's attorney as well as a letter from Diacolios to his attorney which alleged that Diacolios could not afford to return to the United States. The government indicated at that time that it would consider paying for Diacolios' airfare from Greece if he in fact was willing to return to the United States.
Diacolios instead pursued efforts through his attorney to be tried in absentia. On March 5, 1985, defendant's attorney requested that the case proceed to trial. The district court denied the request, noting that Diacolios could not be tried in absentia because he had never personally appeared to respond to the charges against him. See United States v. Tortora, 464 F.2d 1202, 1209 (2d Cir.), cert. denied, 409 U.S. 1063, 93 S. Ct. 554, 34 L. Ed. 2d 516 (1972). At that time, the government informed the court that it believed Diacolios was not subject to extradition from Greece since he was a Greek national. The government then moved to have the trial date adjourned indefinitely, and the district court granted the government's motion.
On June 14, 1985, the case was reassigned to Judge Haight, and thereafter on February 19, 1986, defendant moved to dismiss the indictment for nonprosecution under the speedy trial clause of the sixth amendment. In opposition to defendant's motion to dismiss, the government filed various affidavits which set forth the history of the case and which indicated that, at the March 5, 1985 pre-trial conference, the government stated its belief that defendant was not subject to extradition. According to the government, this conclusion was confirmed after further research by an assistant United States Attorney who contacted an official at the Department of Justice, Office of International Affairs and was advised that, because defendant was a Greek citizen, he was not subject to extradition for two reasons. First, pursuant to the terms of the extradition treaty between the United States and Greece, "neither of the [parties] shall be bound to deliver up its own citizens" (Extradition Treaty, Nov. 1, 1932, United States-Greece, art. VIII, 47 Stat. 2185, 2191, T.S. No. 855); and second, Diacolios was not subject to extradition as a matter of comity because Greece does not permit extradition of its own nationals apart from the extradition treaty. The Justice Department official further explained that "it is not generally the policy of the United States to request surrender as an act of comity."
In a memorandum decision and order dated September 8, 1986, Judge Haight considered Diacolios' motion to dismiss the indictment and rejected defendant's initial contention that the government failed to offer financial assistance to enable defendant to return to the United States. Judge Haight found that Diacolios had been on notice since August 27, 1984 -- the date of the initial pre-trial conference -- of the government's willingness to provide any necessary financial assistance to secure Diacolios' presence at trial. The district court indicated, however, that defendant never agreed to return to face the charges against him. The court, therefore, viewed defendant's inaction in this regard as a "deliberate attempt [by Diacolios] to prevent clear resolution of the matter" and not as a failure of the government to bring him to trial.
The district court was unable on the existing record, however, to resolve Diacolios' other contention that the government failed to exercise due diligence in seeking his return from Greece. In the court's view, it was not sufficient for the government simply to assert that Diacolios was not subject to extradition. Specifically, Judge Haight found
the record before [him] . . . devoid of any evidence that a policy decision was made not to pursue diplomatic efforts outside the extradition treaty . . . .
Accordingly, the district court ordered additional affidavits from government officials with personal knowledge of any "policy decisions made by the Government not ...