U.S. v. Meador

• Decision Date: 13 April 1998
• Docket Number: No. 97-40022,97-40022
• Citation: 138 F.3d 986
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jack Manning MEADOR, Jane Meador Cook, John Stephen Torigian, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 986

138 F.3d 986

UNITED STATES of America, Plaintiff-Appellant, v. Jack Manning MEADOR, Jane Meador Cook, John Stephen

Torigian, Defendants-Appellees.

No. 97-40022.

United States Court of Appeals, Fifth Circuit.

April 13, 1998.

Richard A. Friedman, U.S. Dept. of Justice, Washington, DC, Carol Kay Johnson, Asst. U.S. Atty., Sherman, TX, Terri Lynn Hagan, Plano, TX, for Plaintiff-Appellant.

Jack Gordon Kennedy, Aileen Rachelle Goldman, Kennedy, Minshew, Campbell & Morris, Sherman, TX, for Meador.

Michael P. Gibson, Burleson, Pate & Gibson, Dallas, TX, for Cook.

Dick W. DeGuerin, DeGuerin and Dickson, Houston, TX, for Torigian.

Appeal from the United States District Court for the Eastern District of Texas.

Before HIGGINBOTHAM, JONES and SMITH, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The United States appeals the dismissal of the felony indictment of three Texans as barred by the statute of limitations. We must decide whether the indictment is saved by the suspension of the limitations period Congress granted to allow pursuit of evidence in foreign countries. This requires The district court held that when a foreign government regards its efforts to satisfy an "official request" by the United States government as complete and communicates that fact to the United States government, it takes "final action" for the purposes of 18 U.S.C. § 3292(b), regardless of whether the foreign government's closing of the matter proves in time to have been incorrect. We agree.

decision of what constitutes "final action" within the meaning of the suspension provision in 18 U.S.C. § 3292(b).

I.

This case takes us to events more than fifty years ago in Nazi Germany. In the summer of 1945, as World War II was just concluding, American troops maintained the peace for Allied forces in Quedlinburg, Germany, a town that dates back to medieval times.

Precious items had been placed for safekeeping in an abandoned mine southwest of the town. After U.S. troops withdrew from the area, several important pieces were missing. The missing artifacts included the "Samuhel-Evangeliar", a ninth century medieval manuscript written entirely in gold--the "Samuhel Gospels," and the "Evangelistar aus St. Wiperti," a sixteenth century prayer book--the "Prayer Book".

Joe T. Meador, a young American serviceman, was part of the Allied force in Quedlinburg. During this time, he sent several packages to his family in Whitewright, Texas. By his letters, the packages contained at least two of the missing items. The Government alleged in its indictment that Joe Meador stole the artifacts from the church treasury in Quedlinburg, Germany on or about April 19, 1945, when he was stationed there. On Joe Meador's death, his brother, Jack Manning Meador, and sister, Jane Meador Cook, inherited his possessions and belongings. Among those items were the Samuhel Gospels and the Prayer Book.

Difficult financial times came, and Jane Cook and Jack Meador decided to sell the Samuhel Gospels and the Prayer Book. They retained defendant John Stephen Torigian, a Houston attorney, who assured them that they had good title to the treasures through the Texas laws of inheritancy. They then decided to sell these manuscripts with Torigian's help.

The effort to sell the manuscripts was no clandestine enterprise. Torigian hired an expert in medieval manuscripts, Jacques Quentin, of Geneva, Switzerland to authenticate the manuscripts and assist in their sale. In 1988, Torigian opened a Swiss bank account and thereafter leased two safety deposit boxes from the same bank in Zurich. Torigian then began sending letters and photographs of the two manuscripts to various museums and art and manuscript dealers in the United States and Europe for the purpose of selling these manuscripts. Heribert Tenschert, a Bavarian book dealer in Passau, Germany expressed an interest in the manuscripts. In 1990, Torigian allowed Tenschert to examine the Samuhel Gospels. Tenschert then approached Dr. Klaus Maurice, the Secretary-General of the Cultural Foundation of the States in Berlin, Germany to obtain funding for the purchase of the Samuhel Gospels.

Acting for the Foundation, Dr. Maurice authorized Tenschert to purchase the Samuhel Gospels from Torigian for three million dollars. As part of his agreement with Torigian, Tenschert deposited funds into Torigian's Swiss bank account and took possession of the Samuhel Gospels. All parties agree that the last of these transactions took place on May 9, 1990.

Eventually, other parties got wind of the situation. The Church in Quedlinburg filed suit in Whitewright, Texas, seeking return of the rest of the treasures. As a settlement of this suit, the Church paid one million dollars for the artifacts. After this sale, the United States Government began investigating the transactions concerning the two manuscripts.

Because the United States cannot directly investigate a crime and gather evidence in a foreign country, on March 2, 1995, the Government made an official request to the Ministry of Justice of the Federal Republic of Germany for certain evidence located in Germany pertinent to the investigation of the defendants. This official request came two

months before the five-year limitations period would have expired on May 9, 1995, absent any suspension. It stated, in relevant part:

TESTIMONY NEEDED

The prosecutor requests interviews with several persons in Germany and further requests that she and an agent of the Federal Bureau of Investigation be permitted to be present for all interviews. With respect to the interview in Munich of Heribert Tenschert, the prosecutor requests that a judge or magistrate conduct the proceedings. With respect to all other witnesses, police interviews will be sufficient. The prosecutor also seeks to view and photograph or copy documents and other evidence presently in the possession of persons or institutions in Germany. Please interview the following persons at the indicated locations:

1. Berlin

A. Dr. Klaus Maurice, Secretary General of the Cultural Foundation of the States, ... Dr. Maurice is expected to have information and documents regarding the agreement by The Cultural Foundation of the States to purchase the Samuhel Gospels....

On March 3, 1995, the Government, based upon this official request, filed an ex parte application for suspension of the running of the statute of limitations pursuant to 18 U.S.C. § 3292. The district court granted the application.

On June 2, 1995, Assistant U.S. Attorney Carol Johnson and FBI Special Agent Mike Krenek participated in an interview by the German police of Dr. Maurice. During the interview Dr. Maurice provided the German police with documents relating to the purchase of the Gospels and promised to produce additional documents and ledgers to the German police. On June 7, 1995, all interviews of witnesses sought in the government's official request were completed.

On August 23, 1995, and September 7, 1995, the Office of International Affairs (OIA) in the U.S. Department of Justice received documents sent by German officials that were responsive to the March 2, 1995 official request. The OIA forwarded those documents to Assistant U.S. Attorney Johnson.

On October 27, 1995, the German Ministry of Justice sent a letter to the OIA stating, in relevant part:

I have the honor of transmitting to you the following items in satisfaction of the above request which have turned up in Bavaria....

According to my documentation, the request has now been completely satisfied. I therefore consider my function to be concluded. ¹

On November 7, 1995, OIA forwarded these additional documents from German authorities to AUSA Johnson. The OIA attorney cautioned that AUSA Johnson should review the enclosed documents carefully to determine if the German government had fully complied with the official request.

On November 14, 1995, AUSA Johnson responded that additional documents were required since Dr. Maurice had not yet provided the accounting statements and ledgers promised to them during the police interview on June 2, 1995. However, at this time the prosecution chose not to seek an official letter of request to the German government requesting its assistance in obtaining the accounting statements and ledgers from Dr. Maurice. Significantly, the prosecution also did not request the district court to continue suspension of the limitations period.

On December 21, 1995, the OIA attorney notified German officials that the documents which Dr. Maurice had agreed to produce during the police interview had not been received and requested that the documents be supplied "as soon as possible." Again, the government requested no extension of the suspension of limitations earlier ordered. Rather, the government accelerated its efforts to obtain an indictment, working through the Christmas holiday. The prosecutors were plainly not waiting for the additional production of documents before asking the grand jury to indict the defendants.

On January 4, 1996, the grand jury indicted Meador, Cook and Torigian for conspiring to receive, possess, conceal, store, barter, sell and dispose of stolen goods and for receiving, possessing, concealing, storing, bartering, selling and disposing of stolen goods.

The German government did not respond until March 31, 1996. At that time, it sent a memorandum from the Police President in Berlin stating that Dr. Maurice had sent the documents to the U.S. Consulate in Frankfurt, Germany, to the attention of Special Agent Richard Tamplin of the FBI on January 31, 1996. SA Tamplin had forwarded these documents to SA Krenek.

The defendants, Meador, Cook and Torigian, moved to dismiss the indictment urging the statute of limitations. On October 18, 1996, at the final pretrial hearing, the Government conceded that the last overt act in furtherance of the alleged conspiracy was taken on May 9, 1990. Thus, May 9, 1995 was the expiration date under ...