U.S. v. Catino, 956

• Citation: 735 F.2d 718
• Decision Date: 24 May 1984
• Docket Number: D,No. 956,956
• Parties: UNITED STATES of America, Appellee, v. Alfred CATINO, Defendant-Appellant. ocket 83-1419.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 718

735 F.2d 718

UNITED STATES of America, Appellee, v. Alfred CATINO, Defendant-Appellant.

No. 956, Docket 83-1419.

United States Court of Appeals,

Second Circuit.

Argued March 22, 1984.

Decided May 24, 1984.

Alan Scribner, Contoocook, N.H. (Jeffrey D. Ullman, New York City, of counsel), for defendant-appellant.

David S. Hammer, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Benito Romano, Asst. U.S. Atty., S.D.N.Y., New York City, of counsel), for appellee.

Before LUMBARD, NEWMAN and PRATT, Circuit Judges.

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. Sec. 3150; and, while a fugitive in France, using an American passport issued in a false name, in violation of 18 U.S.C. Sec. 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. Secs. 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. ¹

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, ² 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 its decision pending additional evidence requested from the United States.

On November 13, 1978, during the pendency of the extradition proceedings, Catino was convicted on the French charges, and sentenced to 5 years in prison and fined. The court also ordered that, after serving of the prison term, he be "permanently barred residence in French territory."

The French government then opposed the extradition request on the grounds that as to both the importation and conspiracy charges, he already had been convicted for the same conduct in France, and on December 20, 1978, the extradition tribunal denied extradition.

Catino completed serving his French sentence on January 21, 1981. French authorities immediately enforced the expulsion order by placing Catino on a plane bound for John F. Kennedy International Airport, located in the Eastern District of New York. Upon his arrival, Catino was arrested by DEA agents on a warrant pursuant to the 1977 Eastern District narcotics importation indictment.

On April 3, 1981, however, the Eastern District indictment was dismissed on the government's motion and Catino transferred to the custody of the Southern District in compliance with the fugitive warrant issued by Judge Pollack in March, 1975, and began serving the sentence imposed upon him in January, 1974.

On October 18, 1982, seven and a half years after Catino had become a fugitive, he was indicted in the Southern District for bail jumping, 18 U.S.C. Sec. 3150. On March 1, 1983, the district court denied Catino's motion to dismiss the indictment for being time barred.

On March 15, 1983, before trial on the bail jumping charge, ³ a superseding indictment was filed in the Southern District, which added a charge that while in France, he used the United States passport issued to him under the false name Frank Casta. Catino's motion to dismiss the passport count, on the ground that venue for the charge lay exclusively in the Eastern District, was denied on May 5, 1983.

Pursuant to an agreement with the government which preserved his right to appeal from the denial of his motion to dismiss, Catino pleaded guilty on June 4, 1983, to both counts of the superseding indictment. On November 18, 1983, the district court sentenced Catino to three years in prison on the bail jumping charge, to run consecutively to the twelve-year sentence he was then serving, and three years' special probation on the passport charge, to follow his release from prison. We affirm.

II.

The federal statute of limitations for non-capital crimes, 18 U.S.C. Sec. 3282, declares that no person may be prosecuted "unless the indictment is found or the information instituted within five years" after the commission of the offense. The statute, however, does not run in favor of "any person fleeing from justice." 18 U.S.C. Sec. 3290. This exception is comprehensive, in that a person fleeing from justice in one jurisdiction loses the benefit of the statute of limitations for all charges in all federal jurisdictions. United States v. Gonsalves, 675 F.2d 1050, 1052-53 (9th Cir.), cert. denied, 459 U.S. 837, 103 S.Ct. 83, 74 L.Ed.2d 78 (1982) (flight from Nevada tolled statute in California); King v. United States, 144 F.2d 729, 731 (8th Cir.1944), cert. denied, 324 U.S. 854, 65 S.Ct. 711, 89 L.Ed. 1413 (1945) (flight from Texas tolled statute in Arkansas).

Catino concedes that he became a "person fleeing from justice" upon his failure to appear for sentencing in March, 1975, but Catino argues that his fugitive status ended in March, 1977, when he consented to extradition to the Southern District. Although the government agrees that a fugitive who executes a formal and voluntary consent to extradition regains the benefit of the statute of limitations, United States v. Gonsalves, supra, 675 F.2d at 1055 (statute begins to run upon good faith effort to surrender), it disputes whether Catino had actually done so.

The district court assumed arguendo that Catino had consented to extradition in March, 1977, but declined to make a factual finding on this point, as, in its view, the issue was irrelevant. As evidenced by his letter of October 10, 1977, Catino obviously had changed his mind about returning to face imprisonment as well as new charges in the United States. On December 14, 1977, Catino opposed an extradition request made by the Eastern District, and continued to do so until the request was denied on December 20, 1978. The court reasoned that, whatever Catino's status from March through December 1977, his resistance to extradition to the Eastern District made him a "person fleeing from justice" with regard to those charges, at least until the extradition proceedings ended. Since tolling of charges in one district tolls the statute in all federal districts, the court concluded that prosecution in the Southern District for bail jumping was not time barred. We agree.

The tolling provision of 18 U.S.C. Sec. 3290 commences when a person absents himself from a jurisdiction where an offense has been committed with the intent of avoiding arrest or prosecution. Jhirad v. Ferrandina, 486 F.2d 442 (2d Cir.1973) (Jhirad I ). A person can be "fleeing from justice" in one jurisdiction even though in prison in another. Taylor v. United States, 238 F.2d 259 (D.C.Cir.1956). Catino concedes that a fugitive who is imprisoned in a...