United States v. Antonakeas

• Citation: 255 F.3d 714
• Decision Date: 19 June 2001
• Docket Number: PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,No. 99-10002,99-10002
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. PANTELIS ANTONAKEAS, AKA ALEXX ANTAEUS,
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 714

255 F.3d 714 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. PANTELIS ANTONAKEAS, AKA ALEXX ANTAEUS, DEFENDANT-APPELLANT.

No. 99-10002

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 13, 2000

Filed June 19, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Elizabeth A. Fisher, Honolulu, Hawaii, for the appellant.

Thomas Muehleck, Assistant U.S. Attorney, Honolulu, Hawaii, for the appellee.

Appeal from the United States District Court for the District of Hawaii Helen Gillmor, District Judge, Presiding. D.C. No. CR-92-00784-HG

Before: Procter Hug, Jr., Stephen S. Trott, and Kim McLane Wardlaw, Circuit Judges.

The opinion of the court was delivered by: Hug, Circuit Judge

OPINION

In 1993, Appellant Pantelis Antonakeas was arrested in California, where he lived at the time, and was brought to Hawaii to stand trial in U.S. district court for one count of conspiracy to distribute cocaine and two counts of possession of cocaine with intent to distribute. A jury convicted him of all three counts, and he was released on bail pending sentencing. However, instead of appearing for sentencing, Appellant fled the United States and remained at large until German authorities arrested him in 1997. The United States then secured his extradition.

Finding himself once again before the district court, Appellant moved to terminate the sentencing proceedings, arguing that the court lacked jurisdiction because the United States had failed to comply with certain procedural terms of the extradition treaty. The district judge rejected this argument and imposed sentence. Appellant now appeals the denial of his motion to terminate the proceedings. He also argues, for the first time on appeal, that the Vienna Convention was violated. Additionally, Appellant raises numerous issues relating to his trial and sentencing: (1) constructive amendment of the indictment; (2) fatal variance; (3) insufficiency of the evidence; (4) improper rebuttal testimony; (5) Brady violations; (6) improper venue; (7) erroneous refusal to give a mitigating role adjustment; and (8) erroneous sentencing based on a quantity of cocaine that was attributed to him by the sentencing judge rather than determined by the jury. We affirm the judgment entered by the district court.

Factual Background

After the jury returned its guilty verdict in Appellant's drug trial on September 8, 1993, Appellant was released on bail pending his sentencing, which was scheduled for January 18, 1994. Having fled the United States, Appellant failed to appear for sentencing. Accordingly, he was indicted on January 27, 1994, for failure to appear after having been released on bail, in violation of 18 U.S.C. §§ 3146.

German authorities arrested Appellant at the Munich Airport on August 14, 1997. He has dual nationality and was traveling on his Greek passport at the time. The U.S. Department of Justice ("DOJ") asked the U.S. State Department to cable the U.S. Embassy in Germany and request that German officials arrest and extradite Appellant for both the drug conviction and the indictment for failure to appear. In its request to the State Department, the DOJ referred to the 1978 extradition treaty¹ between the United States and Germany, and the DOJ assured that it would "provide the supporting documents required under the treaty within the time specified by the treaty."

German officials ultimately approved Appellant's extradition for the drug conviction but denied it for the failure-to-appear indictment.² Appellant was turned over to U.S. authorities, and on March 18, 1998, he was again brought before the United States District Court for the District of Hawaii. Appellant objected to the district court's assertion of jurisdiction based on an alleged procedural violation of the Treaty.³ On December 14, 1998, after receiving briefing on the issue, the district court denied Appellant's motion to terminate the proceedings and sentenced Appellant to 168 months of incarceration and five years of supervised release on each count, all to run concurrently.

Originally in the district court, Appellant was charged with conspiracy to distribute a quantity of cocaine in excess of 500 grams⁴ (Count 2) and with possession with intent to distribute a quantity of cocaine in excess of 500 grams⁵ (Counts 3 and 4). The organizer of the conspiracy, co-defendant Vassilios Liaskos, was a Honolulu resident who distributed there each month multiple kilograms of cocaine that he received from several suppliers. Much of the cocaine was transported to Liaskos by Sergio Panagiotopoulos, Cyriakos Cyzeridis, and Hristos Vasuras--who testified at trial that Appellant had sold, supplied, or attempted to supply them with cocaine on numerous occasions. The "ways and means" section of Count 2 alleged that, in order to achieve the objectives of the conspiracy, Appellant (among several others) "from 1987, and continuing through 1992 . . . obtained kilogram quantities of cocaine in California for delivery to VASSILIOS LIASKOS in Honolulu, Hawaii." Counts 3 and 4 also stated that the defendants knew and intended that the cocaine would be distributed in Hawaii.

During deliberations, the jury sent out a note asking, "To be part of this conspiracy charge (count #2) does the defendant need to have the knowledge that the cocaine was to be ultimately sold [and] distributed in Hawaii? " The district judge responded: "The answer to that question is no. The elements of the conspiracy that the government is required to prove beyond a reasonable doubt are set forth in Court's Instruction No. 21 and the indictment." The court's instructions did not include the Hawaii nexus with regard to either the conspiracy count or the possession-with-intent-to-distribute counts.

Appellant argues that the Hawaii nexus of each count was critical and that omitting the Hawaii nexus (1) constituted a constructive amendment to the indictment, (2) resulted in a fatal variance between the indictment and the evidence, and (3) resulted in the government failing to prove his involvement in the conspiracy.

Appellant also argues that the district court erred in denying his motion for a mistrial, which contended that he was prejudiced by the government's rebuttal case. On direct examination during the defense's case, Appellant denied any involvement in the sale or use of drugs. He claimed to be an aspiring music remixer and testified, "we do not tolerate any drug abusers or users in our business." In rebuttal, the prosecution called Panagiotopolous, a major participant in the conspiracy, who testified to two non-indicted cocaine sales made to him by Appellant.

Appellant also makes two allegations of Brady violations, for which he also moved for a mistrial in the district court. First, he contends that the government should have produced a DEA agent's debriefing report for Panagiotopolous. After being arrested, Panagiotopolous attempted to negotiate a plea agreement with the government. It took several months for Panagiotopolous to reach an agreement because the government initially did not believe that he was telling the truth. Relying on the fact that the government did not initially believe Panagiotopolous, Appellant argues that Panagiotopolous's statements, made during the plea negotiations and summarized in the report, were Brady material. The district court rejected this argument and denied a mistrial.

Second, Appellant contends that the government should have disclosed that government witness Cyzeridis had tried to bribe another government witness, Vasuras. The district court denied the defense motion for a mistrial, holding that the government had no obligation to disclose anything in reference to Cyzeridis.

Additionally, Appellant argues that venue was not proper in Hawaii and that the sentencing judge erred in denying him a mitigating role adjustment. And, finally, we construe a letter filed by Appellant pursuant to Rule of Appellate Procedure 28(j) as arguing that he was sentenced, in violation of the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), on the basis of a quantity of cocaine that was not determined by the jury, but rather by the judge at sentencing.

Discussion

1. Standing to Raise Procedural Violations of an Extradition Treaty

The United States argues that Appellant has no standing to raise noncompliance with procedural provisions of the Treaty as a bar to jurisdiction in the district court. We agree. An early Supreme Court case, United States v. Rauscher, 119 U.S. 407, 409-10, 430, 433 (1886), recognized the right of a person extradited to enforce what has become known as a "specialty" provision in a treaty--a requirement that the receiving country may proceed against the person extradited only for offenses that are enumerated in the treaty and upon which extradition actually rested. In Rauscher , the treaty enumerated murder as an eligible offense, and extradition rested on that offense, but the defendant was tried and convicted for the then-existing lesser offense of "cruel and unusual punishment." Id. at 409-10. The Supreme Court reversed. Id. at 433. A more recent Supreme Court case, United States v. Alvarez-Machain, 504 U.S. 655, 659-60 (1992), expressed agreement that a defendant may not be prosecuted in violation of the terms of an extradition treaty, citing Rauscher . But there the Court held that a treaty could not be violated where it was not invoked (because the defendant had in fact been kidnapped, not extradited). Id. at 669-70. In United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986) (per curiam), another specialty case, this court made the broad statement that "the person extradited may raise whatever objections the rendering country might have." Despite this broad pronouncement, however, we conclude that, unlike the substantive right of specialty, procedural violations do not give rise to individually...