U.S. v. Hagege, 04-50425.
| Decision Date | 22 February 2006 |
| Docket Number | No. 04-50425.,No. 04-50427.,04-50425.,04-50427. |
| Citation | 437 F.3d 943 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Charly Sion HAGEGE, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. Charly Sion Hagege, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Elana Shavit Artson, Assistant United States Attorney, Los Angeles, for the plaintiff/appellant/appellee.
Stanley L. Friedman, Esq., Los Angeles, for the defendant/appellee/appellant.
Appeal from the United States District Court for the Central District of California; Florence Marie Cooper, District Judge, Presiding. D.C. No. CR-03-00965-FMC.
Before HARRY PREGERSON, ROBERT E. COWEN,* and SIDNEY R. THOMAS, Circuit Judges.
The United States appeals the district court's sentence of Charly Sion Hagege for bankruptcy fraud and false representation of a social security number. The government argues that the district court committed error in refusing to increase Hagege's sentence on the basis of judicially-found facts. Hagege cross-appeals his conviction based on the following grounds: (1) the district court erred in denying Hagege's motion for an evidentiary hearing on the issue of whether the prosecutor intentionally provoked Hagege into moving for a mistrial; (2) the district court erred in denying Hagege's motion to dismiss count one of the indictment based upon the statute of limitations; (3) the district court's admission of foreign bank records violated the Confrontation Clause of the Sixth Amendment; and (4) the district court erred in denying Hagege's motion for a mistrial as to the second trial based upon the district court's reference to a jury instruction relating to prior convictions. For the reasons given below, we will affirm the conviction, vacate the sentence, and remand the case for further proceedings in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
On September 24, 2003, Hagege was named in a four-count indictment charging him with making a false declaration in bankruptcy, in violation of 18 U.S.C. § 152(3) (count one), concealment of assets in bankruptcy, in violation of 18 U.S.C. § 152(1) (count two), and false representation of a social security number, in violation of 42 U.S.C. § 408(a)(7)(B) (). Count one of the indictment alleges that Hagege made a false declaration in bankruptcy on or about January 27, 1998. Absent any suspension period, the five-year statute of limitations applicable to count one would have expired on January 27, 2003, approximately eight months before the indictment was filed.
On September 26, 2002, the government moved for a suspension of the statute of limitations, pursuant to 18 U.S.C. § 3292, in order to obtain foreign evidence from Israel. In the motion, the government requested that the suspension period begin on March 21, 2002, the date of its official Request for Assistance pursuant to the Treaty of Mutual Legal Assistance in Criminal Matters ("MLAT") to Israel. In an order dated September 30, 2002, the district court granted the motion and suspended the statute of limitations from March 21, 2002 "until final action is taken by Israel on the government's request for assistance, provided that this period of suspension may not exceed three years." (AER1 at 245.)
The MLAT request sought production of records of bank accounts in Israel in the name of Hagege for the period from January 1, 1994 to the present. With regard to certification of the authenticity of the records, the MLAT request provided, in relevant part, as follows:
In order to obtain the evidence sought as quickly as possible for use in the pending investigation, the United States will at this time accept the evidence sought without execution of the certifications enclosed at the end of this request (the certifications are required for the use of the evidence at trial, but are not required for investigative purposes). Thereafter, when the time for trial in the United States approaches, the United States requests that some or all of the non-certified evidence be resent to the United States in certified form as the evidence cannot be admitted in court in the U.S. without these certifications.
(AER at 198.)
On June 18, 2002 and June 21, 2002, the Israeli government received two batches of uncertified bank records which it forwarded to the U.S. government in response to the MLAT request. In a follow-up letter dated July 18, 2002, which identified "MLAT request — Hagege" as the subject of the letter, the Israeli government stated, "[t]he above captioned request was executed." (AER at 332.) The July 18, 2002 letter also stated, "in the future, should you need certified copies of the bank statements please let me know." (AER at 332.)
Thrice between March 2003 and early December 2003, the U.S. government requested the Israeli government to produce a certificate of authenticity pertaining to the documents it had already sent, as well as additional documents responsive to the MLAT request. On December 18, 2003, the Israeli government produced the requested certificate of authenticity via facsimile. On or about the same date, the Israeli government informed the U.S. government that Bank Hapoalim possessed additional documents relating to six accounts held by Hagege, which had not been previously produced due to an oversight. On December 23, 2003, the U.S. government received the additional documents.
On December 29, 2003, Hagege moved to dismiss the false declaration charge in count one of the indictment based on the statute of limitations. Hagege argued that the Israeli government took "final action" on the March 21, 2002 request when the Israeli authorities first produced documents responsive to the request in June 2002. Hagege contended that the MLAT request did not contain a request for certification. At most, Hagege argued, the suspension period lasted six months pursuant to 18 U.S.C. § 3292(c)(2). Adding a six-month suspension period to the five-year statute of limitations, Hagege contended that the statute of limitations expired, at the latest, on July 27, 2003. Since the indictment was filed two months later on September 24, 2003, Hagege argued that count one of the indictment was untimely.
In opposition to the motion, the government contended that "final action" was not taken by the Israeli government on the MLAT request until December 2003, when the Israeli government produced the certificate of authenticity and the additional responsive documents. The government argued that the statute of limitations was therefore suspended from March 21, 2002 until December 2003. Therefore, the government posited, the statute of limitations was suspended when count one of the indictment was filed on September 24, 2003.
The district court agreed with the government and denied the motion to dismiss. Rejecting Hagege's reading of the MLAT request as "too narrow[]," the district court found that the MLAT request included a request for certification. The district court found that the Israeli government did not produce the certification or the requested documents until December 2003, and, therefore, that "final action" did not occur until December 2003. For these reasons, the district court concluded that count one of the indictment was not time-barred.
On December 22, 2003, prior to the start of trial, the government moved for an order ruling that foreign records obtained from banks in Luxembourg and Israel would be admitted pursuant to 18 U.S.C. § 3505, based upon certificates of authenticity. Hagege opposed the motion based upon several arguments, including the argument that the business records constituted inadmissible hearsay. Hagege did not directly challenge the admission of the bank records based upon a violation of the Confrontation Clause. However, the government raised the issue of whether the admission of the records violated the Confrontation Clause in its reply memorandum. With the exception of some documents excluded as irrelevant, the district court permitted the admission of the foreign bank records under § 3505.
Trial commenced on January 15, 2004. During trial, pursuant to the district court's ruling under § 3505, the government introduced the foreign bank records into evidence, but not the certificates of authenticity.
On the third day of trial, the district court declared a mistrial after a government witness, Anthony Keats, testified that Hagege was involved in a pornography business. The government had proffered that Keats, a lawyer who had represented Polo Ralph Lauren Corporation ("Polo") in an unrelated civil action against Hagege, would testify about Hagege's efforts in transferring assets in violation of a court order entered in the civil action. After Keats took the stand, the government asked Keats about the nature of the civil action and the judgment that was entered. Keats testified that the civil action was based on Hagege's counterfeiting of Polo's trademark, and that the judgment included a $8.8 million damage award. The government asked Keats whether Polo had ever collected the money. When Keats testified that Hagege had not paid the money, the government asked Keats what steps Polo had taken in order to collect the money. Keats responded that Polo had conducted an investigation to determine the whereabouts of the money that Hagege had received from the counterfeiting activity. The government then prodded Keats about the specifics of the investigation:
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