U.S. v. Flores

• Decision Date: 09 July 1976
• Docket Number: No. 1219,D,1219
• Citation: 538 F.2d 939
• Parties: UNITED STATES of America, Appellant, v. Antonio FLORES, Defendant-Appellee. ocket 76-1195.
• Court: U.S. Court of Appeals — Second Circuit

Page 939

538 F.2d 939

UNITED STATES of America, Appellant, v. Antonio FLORES, Defendant-Appellee.

No. 1219, Docket 76-1195.

United States Court of Appeals Second Circuit.

Argued June 18, 1976.

Decided July 9, 1976.

Stuart R. Shaw, New York City, for defendant-appellee.

John P. Flannery, II, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., for the Southern District of New York, Frederick T. Davis, Lawrence B. Pedowitz, Asst. U. S. Attys., New York City, of counsel), for appellant.

Before MANSFIELD, OAKES and GURFEIN, Circuit Judges.

MANSFIELD, Circuit Judge:

Upon this appeal by the government pursuant to Title 18 U.S.C. § 3731 ¹ from a pretrial ruling of Judge Bonsal of the United States District Court for the Southern District of New York barring the introduction into evidence of certain proof which the government proposes to offer at trial against the defendant-appellee, a fugitive who has been extradited from Spain to the United States, the central issue is whether admission of the evidence is precluded by the terms of an order of the High Court of Spain extraditing the defendant to this country. We hold that it is not precluded and reverse the district court's ruling.

The case grows out of appellee's alleged participation in a major international narcotics conspiracy that has already spawned considerable litigation before this court. ² On January 8, 1973, Antonio Flores, along with several others, was indicted in the United States District Court, Southern District In ordering extradition, however, the Spanish Court noted that the United States and Spain had not entered into an extradition treaty encompassing narcotics smuggling until September 3, 1970, when Spain joined the Geneva Convention of 1936 for the Suppression of Illicit Traffic in Dangerous Drugs. Accordingly, the Spanish Court qualified Flores' extradition as follows:

of New York, for conspiracy to sell narcotics in violation of 21 U.S.C. §§ 173 and 174. The indictment charged Flores with participation in the alleged conspiracy from on or about January 1, 1968, through April 30, 1971, in furtherance of which 11 overt acts were committed, all but two prior to September 3, 1970. At that time he was a fugitive from this jurisdiction, residing in Spain. Spanish authorities arrested appellee on March 23, 1973, pursuant to an American extradition request. Flores, however, resisted extradition and the resulting legal proceedings lasted until November 13, 1973. On that date the High Court of Spain ruled that Flores should be extradited.

"If it is concluded from the foregoing that the Treaty of 1904 is applicable, it is also concluded that some limitations must be clearly stated, owing to the charge that the fugitive conspired with other persons to receive, conceal, buy, sell, or facilitate the transport to the United States of an undetermined quantity of heroin or other drugs during the approximate period of January 1968 to April 30, 1971, as evidenced by several acts commited (sic) by Antonio Flores himself or his co-conspirators; and it is concluded from the foregoing that the request for extradition must be totally rejected with respect to the charges brought against him before the United States District Court for the Eastern District (of New York) because they only include acts committed between January and August 1968, that is, outside the effectiveness of the Treaty of 1904 taken in conjunction with the aforesaid Convention; and with respect to the charges brought against him before the Court of the Southern District of New York, the extradition must be granted, but expressly limited to activities from September 3, 1970 to April 30, 1971, all previous activities being excluded; . . . .

"THEREFORE: In view of the articles and provisions cited and others which are applicable, the Court hereby rules :

"1. The extradition of Antonio Flores; also known as Antonio-Javier Flores Serrano, who uses the name of Louis Serrano Flores as well, a United States citizen born in Caguas, Puerto Rico, in 1937, is admissible, and his extradition is granted, at the request of the United States of America, limited solely and exclusively to the alleged crime of conspiracy to violate Sections 173 and 174 of Title 21 of the United States Code, of which crime he is accused before the Court of the Southern District of New York, and further expressly limited with respect to time to the acts committed between September 3, 1970 and April 30, 1971, excluding any previous or subsequent acts. . . . (A)nd it is understood that the extradition is contingent upon the formal promise of the United States Government that the aforesaid person will not be prosecuted for previous offenses or offenses foreign to this extradition request unless he expressly consents to such prosecution."

In line with this restriction, the Spanish Court forbade prosecution of Flores upon an indictment pending in the Eastern District of New York charging him with conspiring between January 1 and August 31, 1968, to violate the federal narcotics laws. In a formal note from the United States Embassy to the Spanish Government the American authorities promised that

"Antonio Flores will not be prosecuted . . . for prior infractions or infractions different than those which are concretely referred to by the decision portion of the dictated decree. . . ."

Since Flores then was serving a Spanish prison sentence, his actual delivery to the Southern District of New York was delayed "(a)t trial all of evidence of the defendant's conspiratorial behavior (should be) admissible against him subject only to the limitation that the jury must find that all the necessary elements of the crime charged existed sometime during the period September 3, 1970 to April 30, 1971."

until February 14, 1976. In a pretrial hearing held on February 26, Flores, in reliance on the Spanish decree, moved that the United States be precluded from introducing any evidence concerning the "(a)cts and declarations of the defendant and conspirators made prior to September 3, 1970, or after April 30, 1971. . . . " In response, however, the Government argued that

On March 24, 1976, Judge Bonsal decided, and the government readily conceded, that the prosecution must establish that "the conspiracy charged in the indictment was in existence between September 3, 1970 and April 30, 1971 and that the defendant was a member of it during this period." The district court, citing United States v. Papadakis, 510 F.2d 287 (2d Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975), further held that the government may introduce evidence of Flores' prior acts and statements as "relevant to defendant's knowledge and intent with respect" to the post September 3, 1970, conspiracy. However, in pretrial conferences held on April 13, 19 and 22 the court construed the Spanish High Court's extradition order as precluding the introduction of evidence of prior acts and statements of defendant's co-conspirators. Although Judge Bonsal did not specify the precise terms of the Spanish Court's order, he apparently relied upon statements in the order that extradition was limited "to the acts committed between September 3, 1970, and April 30, 1971, excluding any previous or subsequent acts." However, he forthrightly observed that others might reasonably differ as to his interpretation of this and similar language in the order, which led him to suggest on several occasions that the government might seek our view through this interlocutory appeal.

In accordance with his interpretation of the treaty and order Judge Bonsal instructed the prosecution that its witnesses would be restricted to testifying "when they first ran into Flores . . ., how long they had known Flores and . . . what Flores told them to do," but that other prior acts in furtherance of the conspiracy would be excluded. While acknowledging that such evidentiary restrictions differ from the practice in "the ordinary case," the court felt itself bound by its reading of the Spanish decree and invited the government to seek review in this court. The government thereupon filed its notice of appeal and trial has been stayed accordingly.

DISCUSSION

Jurisdiction

Despite the language of 18 U.S.C. § 3731 authorizing the government to appeal from district court orders "suppressing or excluding evidence" and decisions by this court holding that the statute permits an immediate appeal from pretrial orders excluding prospective trial testimony of government witnesses, see, e.g., United States v. Cannone, 528 F.2d 296 (2d Cir.1975); United States v. Percevault, 490 F.2d 126 (2d Cir.1974), defendant-appellee contends that the present appeal should be dismissed. First he argues that the appeal is time barred by § 3731, which requires that an appeal "in all such cases . . . be taken within thirty days after the decision, judgment or order has been rendered," since the government did not file its notice of appeal until May 5, 1976, which was more than 30 days after March 24, 1976, the date when Judge Bonsal, in response to the defendant's motion to limit the government's introduction of evidence at trial, ruled in favor of the government, holding that it might introduce evidence of Flores' prior acts. From this appellee apparently assumes that the district court by implication must, at the same time, have granted Flores' concurrent motion that the government be forbidden from introducing the prior acts of his co-conspirators at trial. If so, this assumption is unfounded and finds no support in Judge Bonsal's March 24th order. Indeed it was not until the mid-April pretrial conferences that the court orally ruled that it would exclude evidence of the prior acts and statements of Flores' co-conspirators. In this context, the government's good faith appeal, well within 30 days of the oral rulings, amply satisfies the time limits imposed by § 3731. ³

Nor can we accept appellee's...