The opinion of the court was delivered by: CARTER
Moses Schreiber was indicted on March 31, 1966 on a 12 count indictment charging various violations of federal law in connection with obtaining loans of the Federal Housing Administration ("FHA"). At the time of his indictment, Schreiber was living in London. In July, 1964, he and his family had moved to London to be near his father who was ill at the time. Initially, he resided at his father's home at 48 Moresby Road, but he subsequently moved to his own residence at 30 Seymour Court, Cazenove Road where he has lived up to the present.
Schreiber has engaged in a variety of business activities in London, and from 1964 to February 9, 1969, he had to secure a permit to work by registering annually with the Metropolitan Police in London as an alien resident. His passport was renewed in 1965, 1970 and 1975 by the American Embassy in London. His 1965 application records both his London address and his former address in Brooklyn, 357 Bedford Avenue. His youngest child was born in London in December, 1964, and a birth certificate for the child was issued by the American Embassy.
When he applied for renewal of his passport at the American Embassy in 1980, renewal was refused because a notice of the pending indictment had been placed in his file. A hearing was held at the American Embassy concerning the matter. The proceeding resulted in the revocation of his passport. The matter was appealed and, in January, 1981, the revocation was upheld.
On February 2, 1981, without returning to the United States, Schreiber moved in this court to dismiss the indictment, pursuant to Rule 48(b), F.R.Cr.P., alleging violations of his rights under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. On May 28, 1981, on the grounds that the claims asserted turned on a number of factual disputes, the motion was denied without prejudice pending a hearing at which Schreiber's presence was required. Schreiber thereupon voluntarily returned to New York and a two-day hearing was held on November 23-24, 1981. Subsequent to the hearing, the parties filed post trial memoranda and a stipulation as to what one Joseph Yanklewitz would testify if called as a witness.
Schreiber, his sister, brother-in-law, uncle, Special FBI Agent William Taylor, Special FBI Agent Wayne Morse, now retired, and two other witnesses testified.
Schreiber testified that he had left this country in July, 1964, and did not know when he left that he was under investigation by the government for his role in securing the FHA loans. He did not recall "to the best of his recollection" being interviewed at FBI headquarters on December 26, 1963, and "to the best of his recollection" did not recall any telephone conversation with an FBI agent on March 9, 1964. He further testified that he had kept in touch with his sister and his brother-in-law in this country; they made several visits to London and knew where he was and how to reach him. He did not learn of the indictment until 1978. A few years before he was apprised of the pending charges, he had been involved in a civil litigation, and his solicitor had advised him that his adversaries questioned his credibility because of some problem pending in the United States. He did not learn anything more. In November, 1978, he asked his solicitor, Peter Brown, to find out what the problem was. Brown made contact with Abberley, Kooiman, Marcellino & Clay in New York, his counsel at the instant hearing, and from that source he learned for the first time about the indictment. He did nothing at the time because his solicitor advised him that he had no responsibility to take any affirmative steps, but that it was up to the government to proceed.
When he left New York in 1964, he packed all of his important business papers in a cushion and left it with his sister.
Miriam Stern, Schreiber's sister, testified that her brother had left his papers with her and the papers had been stored in a warehouse. There was a fire and the papers, along with carpets, had been destroyed. She testified further that she had never been visited by the FBI and her husband never told her about the FBI visiting him. Herman Stern, her husband, testified that he did not "to the best of (his) knowledge," recall whether anybody from the FBI contacted him about Schreiber.
Two witnesses testified for the government, Special Agent William Taylor who was the chief FBI special agent in the case until February, 1964, and Special Agent Wayne Morse, now retired, who succeeded Taylor as chief FBI special agent assigned to the case when Taylor was assigned some other duty.
Taylor testified that he interviewed Schreiber on December 26, 1963, at FBI headquarters in New York. Morse recalled being present at the interview. Taylor filed a report of the interview on January 7, 1964. He could not, however, recall the details of the interview and the report was received as past recollection recorded. The report indicates that Schreiber was advised by Taylor that he and Morris Weiss were the targets of an investigation concerning FHA loans they had obtained in violation of federal laws. Schreiber refused to make any statement without consulting with his lawyer, Joseph Yanklewitz of 983 Broadway, Brooklyn, New York, whom he would not be able to see until sometime early in January. The report gives Schreiber's age as 32, his place and date of birth as Oredea Uhare, Romania, on February 15, 1931, his then current address as 537 Bedford Avenue, Brooklyn, New York, his place of employment as Stanton Salvage Co., 110 Stanton Street, New York City, his wife's name as Irene, and his religion as Orthodox Jew. The personal details and the address of Yanklewitz are all accurate.
Special Agent Morse testified that he telephoned Schreiber on March 9, 1964. He filed a report of the substance of this conversation. This report was received as past recollection recorded since Morse had no present recollection of the substance of the conversation. The report states that Schreiber indicated that on the advice of counsel he did not wish to discuss the loans, that while he signed some documents to secure the loans, he considered the matter to be Morris Weiss' responsibility and he was in no position to pay.
On February 16, 1966, inquiry was made of the passport office in New York and Morse was advised that the office could not locate any record of a passport being issued to Schreiber in 1964 or 1965. After the indictment was handed down on March 31, 1966, various reports show that on April 12, 1966, Morse filed a stop order request with the Immigration and Naturalization Service requesting that Schreiber be taken into custody by reason of the pending indictment if he sought entry at a port of the United States. This stop order request was renewed on November 23, 1971, and November 23, 1976.
On May 6, June 22 and June 26, 1966, Morse sought to locate Miriam Stern at 939 44th Street, Brooklyn, New York, without success. On May 6, 1966, Morse went to 537 Bedford Avenue, Brooklyn, New York, and interviewed Sandor Katz who advised him that Schreiber, who used to live at that address, had left the United States in 1964. Katz claimed to have had no contact with Schreiber since and no information concerning Schreiber's present location or activities.
On July 6, 1966, Morse's report indicates that he interviewed Herman Stern at his place of business, 1076 38th Street, Brooklyn, New York. The report attributes to Stern the following statements: that he was aware of the charges pending against his brother-in-law; that he and his wife, Miriam, continued to reside at 939 44th Street, Brooklyn, New York; that he did not know the whereabouts of Schreiber; that the latter had left the country for Europe two to two and a half years previously; that he and his wife had never been close to Schreiber and that he did not know the whereabouts of any of his wife's relatives in Europe; and that if he found where Schreiber was, he would notify the FBI. Reports indicate that Morse subsequently spoke on the telephone to Herman Stern on August 12, 1966, November 14, 1966, March 29, 1967, July 21, 1967, and December 8, 1967. On each occasion, Stern stated he still did not know Schreiber's whereabouts. In the March 29, 1967 conversation Stern said he believed Schreiber was living in England but he did not know where. Morse testified at the ...