United States v. Galanis

• Decision Date: 08 March 1977
• Docket Number: Civ. No. N-76-385.
• Parties: UNITED STATES of America v. John Peter GALANIS, a/k/a Peter Galanis.
• Court: U.S. District Court — District of Connecticut

429 F. Supp. 1215

UNITED STATES of America v. John Peter GALANIS, a/k/a Peter Galanis.

Civ. No. N-76-385.

United States District Court, D. Connecticut.

March 8, 1977.

Raymond L. Sweigart, Asst. U. S. Atty., New Haven, Conn., for plaintiff.

Paul R. Grand, Grand & Ostrow, New York City, Mark A. Weinstein, Weinstein, Shields, Schaffer, Hirsch & Lev, Norwalk, Conn., for defendant.

MEMORANDUM OF DECISION

NEWMAN, District Judge.

On February 6, 1973, a Canadian information was filed in Montreal charging defendant John Peter Galanis with defrauding Champion Savings Corp., Ltd. and its creditors of securities valued at 1,600,000 Canadian dollars. On September 1, 1976, Government counsel applied to this Court, pursuant to 18 U.S.C. § 3184, which governs the extradition of persons in the United States to foreign countries, for a warrant requiring the defendant, an American citizen residing in Connecticut, to be brought before the Court for a hearing. Section 3184 requires that a hearing be held on the Government's application, and that if the Court finds probable cause to sustain the charge,¹ it shall certify that finding to the Secretary of State, who then takes the appropriate steps, according to the governing treaty or convention, to secure the extradition upon the request of the demanding government.

On November 23, 1976, the Court commenced the hearing required by § 3184.² After an adjournment prompted by defense counsel's request for additional time, the hearing was resumed on December 3, 1976. Initially, the Court heard testimony relating to motions filed by the defendant. The motions all seek the same relief — dismissal of the extradition proceeding with prejudice. The defendant argues for dismissal on the following grounds: (1) that the proceeding violates a prior agreement between the defendant and the United States Attorney's Office in the Southern District of New York, (2) that the proceeding is barred by the double jeopardy clause because the defendant has already been "proceeded against" in this country on the charge for which extradition is sought, and (3) that the United States and Canada have violated defendant's Sixth Amendment right to a speedy trial. On the merits of the issue of probable cause, the defendant contends that the exhibits offered in support of the extradition request have not been properly authenticated and without these exhibits, evidence of probable cause is lacking.

The hearing lasted more than two days, during which testimony was taken from, among others, the Canadian official who directed that country's investigation of Galanis and Champion Savings, two Canadian lawyers qualified as expert witnesses on Canadian criminal procedure, and the two American lawyers who were principally responsible for the American securities fraud investigations that involved the defendant. Extensive briefs have been filed.

Before turning to the basic task required by § 3184 — the determination of probable cause — the Court will rule on defendant's motions seriatim.

I. Alleged Violation of Plea Agreement

Defendant's first claim is that the extradition proceeding must be dismissed because it violates a prior agreement between himself and the United States Attorney's Office in the Southern District of New York. The argument's legal rationale is based on the Supreme Court's decision in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), in which the Court vacated a petitioner's state court conviction, which had been entered upon his guilty plea, because a prosecutor's promise to refrain from a sentence recommendation had been broken.³

In Santobello, the Court stated:

. . . the adjudicative element inherent in accepting a plea of guilty must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

Id. at 262, 92 S.Ct. at 499. A court reviewing a claim of a violated plea agreement must determine the precise terms of the bargain, assess the claim of breach, and, if the inquiry indicates that the promise has been broken, fashion the proper remedy. The task, as Santobello states, is to determine "what is reasonably due in the circumstances." See, e. g., United States v. Alessi, 544 F.2d 1139 (2d Cir. 1976); United States v. Alessi, 536 F.2d 978 (2d Cir. 1976); United States v. Papa, 533 F.2d 815 (2d Cir. 1976); Geisser v. United States, 513 F.2d 862 (5th Cir. 1975).

A. The Agreement

One uncontroverted fact emerging from the record of this case is that the defendant has been an unusually cooperative Government informant and witness. The Assistant United States Attorney in charge of the securities investigations involving the defendant described his cooperation as "overwhelming." As a direct result of his assistance, the United States Attorney's Office for the Southern District of New York developed nearly twenty different investigations, and obtained numerous indictments, convictions, and additional informants. When the defendant was sentenced, Assistant United States Attorney Brodsky described the information furnished by the defendant as "completely candid and honest," and represented to the Court that Galanis had persisted in his cooperation despite at least two verified threats to his and his family's safety.

The critical issue this Court must determine is what the defendant was promised in return for his cooperation. The record developed during the hearing provides abundant evidence, not all of which is clear.⁴ The evidence comes from three principal sources — Brodsky's testimony, defense counsel's representations to the Court, and contemporaneous written documents purporting to set forth the agreement.

The issue was initially joined over a rather narrow dispute — whether the extradition proceeding violated a plea bargain between Galanis and the United States that barred "the use of any information supplied to the United States by Mr. Galanis."⁵ This statement of the agreement is repeated throughout defendant's submissions to this Court.⁶ And this view of the agreement as barring only use of Galanis' information has been expressed by the Government throughout this proceeding.

After the hearing, however, defense counsel's position changed. In his post-hearing memorandum, defendant abandons his earlier position, and instead pleads in the alternative. Specifically, the defendant now argues that, in return for his cooperation, the Government agreed not to participate in any extradition proceeding based on charges involving transactions the defendant disclosed to the Government. Alternatively, the defendant argues that if the agreement was only not to disclose information received from Galanis, then the Government has not proved that the evidence on which the Canadian charge is based is wholly independent from the immunized information.

This shift in position is troublesome. Although no lawyer should be reluctant to advance additional arguments on behalf of his client, defense counsel's role in the context of this case is not simply that of an advocate. Attorney Grand, acting on behalf of the defendant, was an active participant in the negotiations that led to the agreement between the United States and the defendant. Despite the defendant's post-hearing claim that the agreement prevents Government participation in the extradition proceeding, the fact remains that the only sworn testimony before the Court that purports to state the defendant's own view of the plea bargain at the time it was made is contained in Attorney Grand's affidavit, which clearly indicates that the defendant bargained only for a Government promise that no information he disclosed to the Government would be used against him in any subsequent proceeding to which the United States was a party.

The only evidence in the record that gives any support to the defendant's belated claim that the agreement precludes Government participation in an extradition proceeding is found in the testimony of Assistant United States Attorney Brodsky before this Court. Brodsky testified that Galanis agreed to cooperate completely with agencies of the United States concerning his activities, and that he agreed to plead guilty to two felony indictments, which would expose him to maximum penalties of a ten-year prison sentence and $20,000 in fines. In return for his guilty pleas and his cooperation, the defendant was given what Brodsky now characterizes as "complete transactional immunity for all of the offenses which he gave us information about." (Tr. 36. Unless otherwise indicated, transcript citations refer to the hearing of December 3, 1976.)

Defendant concedes that the actual agreement as made prior to his guilty pleas contained no provision for protection from extradition or foreign prosecution.⁷ Evidently neither subject was discussed (Tr. 37-39). The guilty pleas were entered separately, one in 1972, the other in early 1973. The defendant was sentenced for both crimes on February 2, 1973. He served six months of a five-year prison sentence, and is now on probation.

Four days after Galanis' sentencing, the Canadian information was filed, and shortly thereafter the Canadian authorities made known to the United States their intention to seek the extradition of Galanis. The defendant does not dispute that the first conversation between Government counsel and his attorneys concerning extradition took place only after this intention had become known — approximately a year and a half after his plea bargain was struck and clearly after he had pleaded guilty. At the hearing, Brodsky recalled the conversation, in response to questioning by the Court. He stated that Galanis' attorneys asked him whether he believed the plea agreement...