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United States v. Fernandes

May 26, 2009

UNITED STATES OF AMERICA
v.
JOSEPH FERNANDES, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Now before the Court are six motions filed by defendant Joseph Fernandes, including a motion to dismiss for violation of defendant's Sixth Amendment right to a speedy trial.*fn1 For the reasons explained below, the Court will grant defendant's motion to dismiss on speedy trial grounds. Defendant's remaining motions will therefore be denied as moot.

BACKGROUND

From 1991 to 2004, defendant was an employee of the U.S. Environmental Protection Agency ("EPA"). His job responsibilities at EPA included reviewing Notifications Forms for new or re-labeled fuel additives, and then -- if the Notification Forms were in order -- registering those fuel additives. Under the Clean Air Act, 42 U.S.C. § 7545, a fuel additive may not be sold until it is registered with the EPA.

The indictment alleges that in September 2001, defendant began submitting false Notification Forms to the EPA that he himself was responsible for registering. See Indictment of Joseph Fernandes ¶ 12. The forms were "false," it is alleged, because they failed to disclose his financial connection with the companies submitting the forms. Id. Two of the forms were also allegedly false because they were submitted as "re-labels" -- a designation that requires less information and less testing for registration. Id. Based on these submissions, defendant is charged with making criminal false statements under 8 U.S.C. § 1101. Defendant is also charged under the financial conflict of interest statute, 18 U.S.C. §§ 208, 216. The government alleges that defendant "knowingly and willfully participate[d] personally and substantially in the particular matter in which he . . . had a financial interest." Indict. ¶ 30.

The investigation of defendant began in August 2004. Def. Mem. at 1. After several months of investigation, the government obtained two search warrants, which agents executed in late June 2005. Id. at 2. Pursuant to those warrants, agents searched defendant's home and a storage locker. Thus notified of the investigation, defendant hired counsel.*fn2 In August 2005, the government prosecutor, Noreen McCarthy, met with defense counsel to discuss the parameters of a potential plea. Id. For the remainder of 2005, and until April or May 2006, McCarthy and defense counsel negotiated the terms of a potential plea. In May 2006, the government learned that defendant had left the country to go to India. Id. The government has not argued -- in briefing or in argument before the Court -- that defendant left the country because of the government's investigation. Rather, it appears that defendant traveled to India and stayed there to attend to unrelated civil litigation. See Gov't Ex. 5 (letters describing defendant's litigation in India).*fn3

The government obtained the present indictment, under seal, on June 30, 2006. FBI Special Agent Lisa Kite Hill then entered defendant's arrest information into the National Crime Information Center ("NCIC"), a national criminal database. Transcript of April 22, 2009 Hearing ("Tr.") at 40-41. Hill also put a "lookout" on defendant with Immigration and Customs Enforcement ("ICE"), an agency of the U.S. Department of Homeland Security. Id. at 41. Lookouts notify law enforcement personnel when an individual with an outstanding arrest warrant returns to the United States. Id. In late June 2006, Hill learned that defendant might return to the United States on July 18 or 19, 2006 via Dulles Airport. She prepared for a possible arrest at Dulles, but upon learning that defendant had not boarded a connecting flight, she called off the effort. Id. at 41-42.

Several weeks later, in early August 2006, the government sought assistance in securing defendant's return from India from the Office of Inspector General of the Social Security Administration ("SSA"). Tr. at 19. Special Agent Sean Stephenson agreed to pose as a SSA field representative, contact defendant, and attempt to initiate a meeting. Id. at 19, 22-23. On August 21, 2006, Stephenson emailed defendant and advised him that his Social Security benefits would be terminated because he had been out of the country for more than 30 days. See Gov't Ex. 1 at 5-6. Stephenson proposed a meeting. Id. That day, Stephenson and defendant exchanged several emails and a phone call, and Stephenson suggested that defendant might visit the U.S. embassy to address this benefits issue rather than returning to the United States. Id.; see also Tr. at 23-24. Defendant apparently did not respond, and Stephenson did not attempt to contact him again. Tr. at 36.

After this failed "ruse," the government's affirmative efforts to secure defendant's return to the United States ceased. Nevertheless, between August 2006 and May 2008 -- when defendant returned to the United States on his own volition -- several other events occurred that inform the analysis that follows. On September 26, 2006 -- entirely unrelated to the government's criminal case against defendant -- the SSA terminated defendant's Social Security benefits. See Gov't Ex. 2. The SSA sent a letter to defendant's last known address (in Virginia) and advised that the benefits were terminated because of an outstanding arrest warrant. Id.

In mid-November 2007, defendant visited the U.S. consulate in Mumbai, India, advised consulate staff that he had lost his passport, and requested a new one. Tr. at 44-46. Because defendant had been entered into the NCIC and ICE databases, McCarthy and other government officials learned of defendant's request. McCarthy, Hill, and an attorney from the Office of International Affairs at the Department of Justice held a conference call. Id. at 46. For the first time, they discussed the possibility of seeking defendant's extradition from India. Tr. at 60. But they decided that an extradition request would be inefficient because extradition could take several years. Id. at 46, 56-57. Rather than seeking extradition -- formally or informally -- they took defendant's request for a new passport to mean that he intended to return to the United States on his own. Id. at 46-47. On that reasoning, McCarthy informed consulate staff that they could issue defendant a new passport, id. at 47-49, and a new passport was issued to defendant on January 16, 2007, see Def. Ex. 1.

In early December 2007, defendant initiated email communication with A.J. Kramer, the Federal Public Defender for the District of Columbia. Defendant noted that "he believed that there were charges pending" against him in the United States. Transcript of May 27, 2008 Removal Proceedings at 36. Kramer then contacted McCarthy, who declined to provide information about the case. Kramer explained to defendant that McCarthy's refusal to provide information "must mean that they believe you are a fugitive and have a sealed warrant for you." Id. at 37.

On December 22, 2007, defendant re-initiated contact with Special Agent Stephenson. Gov't Ex. 1 at 4. Defendant told Stephenson that his return to the United States was imminent and asked what he needed to do to have his benefits reinstated. It appeared to Stephenson that defendant "did not know why his benefits were terminated." Tr. at 30. Defendant, Stephenson, and Stephenson's supervisor, Christopher Cherry, exchanged seven emails over the next several weeks. Stephenson and Cherry repeatedly emphasized the need to meet with defendant in person, and defendant advised that his return to the United States had been postponed because of "legal issues." Gov't Ex. 1 at 2; see also Tr. at 30-32. Communications ceased after January 11, 2008. Gov't Ex. 1 at 1.

Sometime before May 7, 2008, defendant again contacted the U.S. consulate in Mumbai. This time he asked for assistance in obtaining an exit permit to leave India. On May 7, 2008, the consulate wrote a letter on defendant's behalf to the Indian government seeking "every courtesy in issuing Mr. Fernandes an exit permit." Gov't Ex. 3. Defendant received an exit permit on May 26, 2008, left India the next day, and was arrested upon his return at JFK International Airport in New York. See Tr. at 73.

A draft letter was found in defendant's luggage, which was searched upon his arrest. See Gov't Ex. 4. In the letter -- dated December 12, 2007 but never mailed -- defendant wrote:

I am not a fugitive. I came to know that I have an arrest warrant when a staff from the Social Service Office called me and told me that my retirement benefits will be terminated. After a period of few months, I learnt that my Social Security Benefit was ...


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