892 F.3d 95 (1st Cir. 2018), 17-1961, United States v. Handa

Docket Nº:17-1961
Citation:892 F.3d 95
Opinion Judge:LYNCH, Circuit Judge.
Party Name:UNITED STATES of America, Appellant, v. Raman HANDA, Defendant, Appellee.
Attorney:Alexia R. De Vincentis, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellant. Martin G. Weinberg, with whom Kimberly Homan, Boston, MA, was on brief, for appellee.
Judge Panel:Before Torruella, Selya, and Lynch, Circuit Judges.
Case Date:June 08, 2018
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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892 F.3d 95 (1st Cir. 2018)

UNITED STATES of America, Appellant,

v.

Raman HANDA, Defendant, Appellee.

No. 17-1961

United States Court of Appeals, First Circuit

June 8, 2018

Page 96

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge ]

Alexia R. De Vincentis, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellant.

Martin G. Weinberg, with whom Kimberly Homan, Boston, MA, was on brief, for appellee.

Before Torruella, Selya, and Lynch, Circuit Judges.

OPINION

LYNCH, Circuit Judge.

In this case, we affirm dismissal of the added charge in a superseding indictment on Sixth Amendment speedy trial grounds. On the facts of this case, we hold that the constitutional speedy trial clock starts to run from the date of the original indictment, rejecting the government’s assertion that it runs from the date of the charge first brought in the superseding indictment. We also reject, on the facts presented, the government’s contention that the Double Jeopardy Clause and the Due Process Clause are the only constitutional constraints as to when it may file a superseding indictment that adds an additional charge, and the Sixth Amendment plays no role.

I. Background

A. Facts

We draw the facts from the district court’s findings, which we accept unless they are clearly erroneous. See United States v. Moreno, 789 F.3d 72, 78 (2d Cir. 2015) (citing Doggett v. United States, 505 U.S. 647, 652-53, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); United States v. Ghailani, 733 F.3d 29, 43-44 (2d Cir. 2013) ); United States v. Aviles-Sierra, 531 F.3d 123, 126 (1st Cir. 2008).

Handa co-owned and operated a luxury watch and jewelry business, Alpha Omega Jewelers ("Alpha Omega"), which ran into financial difficulties in 2007. United States v. Handa (Handa I), 266 F.Supp.3d 443, 445 (D. Mass. 2017). In late 2007, Handa began to experience severe "stress, anxiety, depression, and sleep deprivation." Id. at 446. He was admitted to the Lahey Clinic in December 2007 after his wife found him unresponsive at home. Id. Handa left the United States shortly thereafter, purportedly to seek medical treatment in India. Id.

In 2008, Alpha Omega filed for bankruptcy. Id. During Alpha Omega’s bankruptcy proceedings in the District of Massachusetts, Handa was represented by Massachusetts attorney Edward J. Quinlan. Id. Also in 2008, Handa retained Edward McLaughlin, another Massachusetts attorney, to represent him in connection with the government’s execution of a search warrant on Alpha Omega. Id. McLaughlin communicated with federal

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prosecutors to seek the return of Handa’s personal belongings which were seized during the search. Id. None of Handa, Quinlan, or McLaughlin were informed that Handa had been charged in a criminal indictment in March 2011. Id. Nearly six years later, Handa was arrested on February 22, 2017, when he returned to the United States. Id. at 447.

Handa openly resided in India from December 2007 to March 2008. Id. at 446. He then stayed with his brother in England until sometime in 2010 or 2011, at which point he permanently relocated to India. Id. Handa retained his U.S. citizenship and passport at all times during his residence overseas. Id. Significantly, while living in India between 2012 and 2017, Handa had numerous interactions with U.S. government agencies: he used his U.S. passport to access the U.S. embassy in New Delhi; renewed his U.S. passport using his Indian address; and applied for Social Security and Medicare benefits, which he began receiving in 2012 and 2014, respectively. Id. at 447.

On March 3, 2011, unbeknownst to Handa, a federal grand jury had indicted him on twelve counts of wire fraud in violation of 18 U.S.C. § 1343. Id. at 446. The indictment alleged that Handa and others had made fraudulent inventory entries in Alpha Omega’s computer system in order to inflate the company’s borrowing base. These entries were then allegedly incorporated into Alpha Omega’s borrowing base certificates, which were used to obtain additional financing from the subsidiaries of two banks: Bank of America, N.A. and LaSalle Bank Midwest N.A. Id.

In April 2011, government agents contacted Handa’s daughter and "employed a ruse in an effort to learn of Handa’s whereabouts." Id. Handa’s daughter told the agents that Handa was spending time in Europe and India, and that they should contact Quinlan. Id. The agents did not tell Handa’s daughter about her father’s indictment. Id. Nor did they follow up with Quinlan to inquire about Handa’s whereabouts or to inform Quinlan about Handa’s indictment. Id.

Instead, in August 2011, the government applied to the International Criminal Police Organization ("INTERPOL") for a Red Notice, which allows INTERPOL to send an alert to member countries notifying them that the United States has issued an arrest warrant for an individual. Id. at 446-47. The Red Notice for Handa was issued on November 26, 2012. Id. at 447. The government took no further action until March 2014, when INTERPOL-Washington requested that INTERPOL-New Delhi check its databases to locate Handa. Id. INTERPOL-New Delhi responded that it could not locate Handa without Handa’s Indian address and passport number. Id. INTERPOL-Washington never provided the requested information to INTERPOL-New Delhi.[1] Id.

On February 22, 2017, Handa traveled to Los Angeles, where he was arrested upon arrival. Id.

B. District Court Proceedings

Handa asserted his Sixth Amendment right to a speedy trial during his arraignment on March 16, 2017, id., and filed his motion to dismiss on speedy trial grounds on April 14, 2017.

On April 26, 2017, two days before its response to Handa’s motion to dismiss was due, the government filed a superseding indictment. The superseding indictment

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contained the same twelve wire-fraud counts as the original March 2011 indictment; significantly, it added a new count for bank fraud in violation of 18 U.S.C. § 1344. The bank-fraud count alleged that Handa had defrauded "a federally-insured financial institution ... by causing fraudulent borrowing base certificates to be submitted to LaSalle Bank Midwest, N.A. and Bank of America, N.A. in order to induce LaSalle and Bank of America to continue to extend Alpha Omega credit...."

The government attempted to excuse the delay by saying that the bank-fraud charge was the product of a new investigation, which had managed to determine that Bank of America, N.A. and LaSalle Bank Midwest N.A. were federally insured, and thus were "financial institutions" under the bank-fraud statute. United States v. Handa (Handa II ), 270 F.Supp.3d 442, 443 n.2 (D. Mass. 2017). On May 8, 2017, the government filed its response to Handa’s motion to dismiss the original indictment, to which Handa filed a reply.

The district court granted Handa’s motion to dismiss the original indictment on July 19, 2017. Handa I, 266 F.Supp.3d at 449. Applying the four-factor test from Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the district court first found that "the delay ... of nearly six years create[d] a presumption of prejudice and justifie[d] further inquiry." Handa I, 266 F.Supp.3d at 447. It then found that the delay resulted from the government’s negligence, and that Handa had invoked his speedy trial right at the "earliest possible time"; both findings weighed in Handa’s favor. Id. at 448. Finally, the district court rejected the government’s argument that the presumption of prejudice was rebutted by the government’s assertion that the case would not "depend[ ] heavily on eyewitness memory of events that occurred in 2007," reasoning that at least some witness testimony would be required and that the nearly six-year post-indictment delay "surely contributed to fading memories." Id. at 449.

On July 20, 2017, Handa moved to dismiss the bank-fraud charge first introduced by the April 26, 2017 superseding indictment on Sixth Amendment speedy trial grounds, arguing that the entire period of time since the original indictment was the applicable measure for the length of delay under the first Barker factor. Handa also sought dismissal of the added bank-fraud charge under the Fifth Amendment, on grounds of prosecutorial vindictiveness and excessive pre-indictment delay. The government opposed Handa’s motions to dismiss.

On September 11, 2017, the district court also dismissed the added bank-fraud count on Sixth Amendment speedy trial grounds, without reaching Handa’s Fifth Amendment claims. Handa II, 270 F.Supp.3d at 444-45. In doing so, the...

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