Appeal by the Government from a judgment of the United States District Court for the Southern District of New York, Kevin T. Duffy, J., dismissing an indictment on the grounds that pretrial delay denied the defendant's constitutional right to a speedy trial. Vacated and remanded for a hearing.
Kearse, Winter, Circuit Judges, and Pierre N. Leval, District Judge.*fn*
The Government appeals from an order of the U.S. District Court, Southern District of New York, Kevin T. Duffy, J., dismissing an indictment on motion of the defendant George Koskotas for violation of his Sixth Amendment right to a speedy trial.
Indictment 80 Cr. 410 was filed July 16, 1980. The indictment charges George Koskotas, his brother Steve Koskotas, Steve's wife Luz Helena Koskotas and George Katsioufis with sixty-five counts of conspiracy, federal tax fraud, false statements to the Social Security Administration, and mail fraud through a scheme to obtain unemployment insurance benefits for fictitious persons from the New York State Department of Labor.
The indictment was filed under seal and bench warrants were issued for all four defendants.
The Government then attempted without success to execute the arrest warrants. Special Agent John Wilkinson of the Internal Revenue Service contacted relatives of the defendants, interviewed persons who had business contacts with them and sought out store owners who had cashed fraudulently obtained checks for defendants. Wilkinson found no leads as to the defendants' whereabouts except advice to the effect that the defendants (who were Greek) were believed to have returned to Greece.
Wilkinson then advised the U.S. Immigration and Naturalization Service of the arrest warrants and asked the defendants' names be placed in the INS' "Lookout List" so that they would be arrested upon any attempt to enter the United States. An Assistant United States Attorney asked that their names be flagged in the INS records so that the authorities would be alerted upon any attempt by a defendant to contact INS.
The names of the defendants were also registered with the FBI's National Crime Information Center's computer list of wanted persons and with the Treasury Enforcement Communications System. Wilkinson also arranged for the dissemination of wanted circulars among various law enforcement agencies. After completing this course of action, Wilkinson ceased to pursue any further active search. None of these actions resulted in any leads as to the whereabouts of any of the defendants until October 8, 1987, more than seven years later.
It now appears that the defendants had indeed left the United States and returned to Greece. Appellee George Koskotas went to work for the Bank of Crete in Athens. Eventually he became an officer of the bank and finally in 1984, its chairman and majority shareholder. As chairman of a major bank, he became prominent in financial and political circles. He also became a newspaper publisher and a well-known public figure. Koskotas, who was apparently unaware of these charges under seal, made numerous trips to the United States, traveling openly under his own name. None of the alerts placed by Agent Wilkinson with the INS or other investigative agency files was triggered. Koskotas repeatedly entered and left the United States without being stopped or questioned.
In October 1987, Koskotas was in the United States and expected as a guest at an official United States Government function to be hosted by then Vice President George Bush. A routine Secret Service screening of the guest list revealed the outstanding warrant. Koskotas was arrested and arraigned.
Government agents then began to assemble the long-dormant prosecution files. Many of the files retained by the New York State Department of Labor ("NYSDOL") could not be found. It appears that, instead of being segregated, they had been mistakenly lodged among the ordinary files and had been routinely destroyed in June 1987 through operation of NYSDOL's regular practice of destroying seven-year old documents.
Koskotas then moved on December 3, 1987 for dismissal of the indictment on the ground that the delay of more than seven years violated his Sixth Amendment right to a speedy trial. He claimed that the loss of the NYSDOL records, together with the erosion of memory of potential witnesses, prejudiced his ability to mount his defense.
Judge Duffy applied the four-factor test of Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), considering "[length] of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Judge Duffy found that, although the government could have done more to locate Koskotas, its efforts did not "lack due diligence." Similarly, Koskotas could not be faulted for failing to assert his right to a speedy trial because he was unaware of the outstanding indictment. Judge Duffy found that the first three factors did not favor either side. He then granted the motion ...