U.S. v. Hay

• Decision Date: 19 April 1976
• Docket Number: No. 75--1044,75--1044
• Citation: 527 F.2d 990
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Robert HAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 990

527 F.2d 990

UNITED STATES of America, Plaintiff-Appellee, v. John Robert HAY, Defendant-Appellant.

No. 75--1044.

United States Court of Appeals, Tenth Circuit.

Argued Sept. 3, 1975.

Decided Dec. 31, 1975.

Certiorari Denied April 19, 1976.

See 96 S.Ct. 1666.

Edward B. Almon and David Barsotti, Denver, Colo., for defendant-appellant.

Richard Spelts, First Asst. U.S. Atty. (James L. Treece, U.S. Atty., Denver, Colo., James Graham, Dept. of Justice, Washington, D.C., on the brief), for plaintiff-appellee.

Before HILL, BARRETT and DOYLE, Circuit Judges.

HILL, Circuit Judge.

Appellant was convicted of conspiracy to defraud the United States in violation of 18 U.S.C. § 371. ¹ Three co-conspirators, Robert Melloni, Pierre Vallee and Theophile Siuave, also were indicted, but were not United States citizens and have not been arrested. The events of the conspiracy and of appellant's arrest and trial were played against an international scenario. Venue was laid in the District of Colorado because it was appellant's last known residence in the United States. In this appeal he argues three grounds for reversal of his conviction. Appellant contends (1) that he was denied his right to a speedy trial, (2) that records of his secret Swiss bank account and a deposition taken to authenticate them were improperly admitted as evidence, and (3) that the evidence does not establish a crime against the United States. None of these contentions, in our opinion, warrants reversal of the conviction.

We will first summarize the evidence concerning the alleged conspiracy. In 1960, acting through the Agency for International Development (A.I.D.), ² the United States loaned the government of South Vietnam $17,500,000 to help finance a new water system for the city of Saigon. The loan agreement required the creation of a government agency, the Saigon Metropolitan Water Office (Saigon), to supervise the construction and to operate the water system upon completion. The loan agreement gave A.I.D. extensive supervisory powers, including the right of approval of all contractors working on the project. Saigon was obligated to employ an engineering firm to design the water system and supervise its construction. Hydrotechnic Corporation of New York, New York, was selected by Saigon and approved by A.I.D. pursuant to the agreement. From 1961 through 1967, appellant was employed by Hydrotechnic as an engineer on the Saigon project at an average annual salary of $14,000.

A portion of the construction was contracted to a French corporation, Les Establissements Eiffel. Appellant was assigned by Hydrotechnic to supervise this work. Eiffel's contract price was $9,400,000 with a provision for the allowance of additional sums for cost overruns. Eiffel retained work worth $4,300,000 and subcontracted the rest. When construction was completed in 1966, Eiffel made claim for a $5,500,000 cost overrun. The government's evidence was that appellant agreed with three co-conspirators, all employees of Eiffel, to exert efforts to obtain the highest possible allowance on Eiffel's claim. During the last quarter of 1966, the conspiracy agreement was reduced to writing. At trial two witnesses testified to the existence and contents of the written agreement. Appellant agreed to approve all documents submitted by Eiffel in support of its claim and to keep co-conspirator Melloni, director of Eiffel's Saigon operation, informed as to the progress of the claim. In return appellant was to receive payment for his services based on the amount of the claim allowed. The invoices submitted to support the claim were falsified by altering invoices from Eiffel's suppliers on other projects to make them appear as expenses on the Saigon project.

When the Eiffel claim was submitted, an audit was required. An accounting firm was hired to conduct the audit and appellant was assigned to assist them with items requiring expertise in engineering. On the basis of the audit, Eiffel was allowed approximately $2,300,000 on its claim. This amount was paid directly by the Vietnamese government because the United States loan funds had already been exhausted. However, A.I.D. did pay the cost of the audit.

On October 2, 1967, the $2,300,000 was deposited in Eiffel's account at the Chase Manhattan Bank in New York City. On the same day, $538,000 of the deposit was transferred to the Chase Manhattan account of Theophile Siauve, an Eiffel employee and an indicted co-conspirator in this case. Transfers were then made from Siauve's account to two secret accounts in the Union Bank of Switzerland in Geneva. One transfer, in the amount of $125,000, was to account No. 580.425 PL. Appellant was shown to be the owner of this account. This transaction completed the conspiracy.

We how set out the sequence of events relevant to appellant's contention he was denied a speedy trial. The possibility of criminal activity in obtaining the Eiffel cost overrun settlement was first discovered in January, 1969. This triggered a lengthy investigation extending into many foreign countries and encompassing interviews with over 100 persons. The investigation culminated with the confirmation of appellant's Swiss bank account through information obtained under a Swiss magistrate's search warrant. Because the bank refused to allow its officials to come to the United States and testify at a trial, the State Department had to negotiate with the Swiss government and the bank for the taking of a deposition under the provisions of 18 U.S.C. §§ 3491-94. ³ Upon reaching a tentative agreement, the government presented its evidence to a grand jury which returned an indictment on August 18, 1972.

In June 1972, the government had learned of appellant's presence in Mali, Africa, where he was working on another A.I.D. project. Because the United States has no extradition treaty with Mali, appellant was able to remain there for nine months after his indictment. He declined invitations from A.I.D. to return to the United States under the pretext of consultation about the Mali project. Finally, the State Department was able to negotiate an informal agreement with the government of Mali to have appellant declared persona non grata. Mali revoked his visa and its police shepherded him aboard a plane. As appellant's plane was about to land in New York, he was arrested by United States marshals who were conveniently aboard.

We consider the period of time from appellant's arrest on May 18, 1973 to his trial on October 13, 1974, the relevant period for determining whether his right to a speedy trial has been denied. We do not include the time from appellant's indictment to his arrest because appellant was not available for prosecution and because none of the interests protected by the sixth amendment guarantee were endangered during this time. ⁴ The constitution does not set a specific time limit for criminal trials; whether a defendant has been denied a speedy trial depends on the circumstances of the case. ⁵ In making the determination, the Supreme Court has suggested four primary factors be considered: 'Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.' Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972).

We consider the 17 months from arrest to trial sufficient to invoke the Barker analysis. In this complex case, however, we do not believe the time lapse is long enough to weigh heavily in appellant's favor. ⁶ The record shows appellant steadfastly asserted his right to a speedy trial and that must be considered more strongly in his favor. Although these factors are worthy considerations, they are not dispositive. Whether appellant's right has been violated in this case depends primarily on balancing the reasons for delay against the prejudice to appellant.

Different reasons are given for two identifiable periods of delay. The first delay was initiated by the government's motion for the issuance of a commission to take a deposition in Switzerland to authenticate records of appellant's bank account. The second delay was to allow the government to obtain a witness who was unavailable for an earlier trial date.

Delay caused by the Swiss deposition procedure ultimately resulted in continuance of the trial to June 10, 1974--approximately 13 months after appellant's arrest. Appellant's claim a continuance to that date would deprive him of a speedy trial was considered by the trial court in United States v. Hay, 376 F.Supp. 264 (D.Colo.1974). Judge Winner found the circumstances of the case justified the delay. The circumstances were indeed extraordinary and presented both legal and diplomatic problems.

Depositions to authenticate foreign documents, including business records, have long been authorized by 18 U.S.C. §§ 3491--94, but such a deposition had never been taken in Switzerland and the statutes had never been interpreted in a reported opinion. As a result, unique problems were encountered. Some delay was necessary to protect appellant's right to confront the deposing witness. Although he later declined to attend in person, steps were taken to secure Justice Department payment of the travel expenses to Switzerland for appellant and his counsel and to obtain a special passport for appellant. Because Swiss law severely restricts the conduct of foreign judicial proceedings on Swiss soil, special permission had to be negotiated for the American consul to take the deposition. In addition, bank officials were reluctant to cooperate for fear of violating Swiss bank secrecy laws. Other misunderstandings arose because of differences in the two nations' laws. Swiss law has no counterpart to the right to confront witnesses; it has no hearsay rule and thus does not require the type of business record authentication necessary under American law. These and other problems were manifested when the deposition was finally taken on January 29,...