United States v. Billman ( 1996 )

Filed: June 5, 1996
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 94-5526
(CR-89-466-JFM)
United States of America,
Plaintiff - Appellee,
versus
Tom J. Billman,
Defendant - Appellant.
O R D E R
The Court amends its opinion filed May 21, 1996, as follows:
On page 4, first paragraph, line 3 -- the words "do support"
are corrected to read "does support."
For the Court - By Direction
/s/ Bert M. Montague
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5526
TOM J. BILLMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-89-466-JFM)
Argued: February 2, 1996
Decided: May 21, 1996
Before LUTTIG, Circuit Judge, BUTZNER, Senior Circuit Judge,
and DOUMAR, United States District Judge for the Eastern District
of Virginia, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: John Robert Fornaciari, ROSS & HARDIES, Washington,
D.C., for Appellant. Barbara Slaymaker Sale, Assistant United States
Attorney, Joyce Kallam McDonald, Assistant United States Attorney,
Baltimore, Maryland, for Appellee. ON BRIEF: Robert M. Disch,
ROSS & HARDIES, Washington, D.C., for Appellant. Lynne A. Bat-
taglia, United States Attorney, Baltimore, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant Tom Billman was one of four people indicted in 1989
for conspiracy (18 U.S.C. § 371), racketeering (18 U.S.C. § 1962(c)),
and eighteen counts of wire and mail fraud (18 U.S.C. §§ 1341 &
1343), following the collapse of the Maryland-chartered Community
Savings and Loan approximately six months after Billman sold his
interests in the various partnerships connected with Community for
nearly $30 million. Billman's co-conspirators were acquitted after a
four-month trial in 1992. Billman, however, had fled the country in
1988 after the Maryland Deposit Insurance Fund won a civil judg-
ment of $112 million against him. He was subsequently arrested in
France in March 1993, extradited in December 1993, and, after a
bench trial on all but the conspiracy and racketeering counts, found
guilty of eleven counts of wire and mail fraud, and sentenced to forty
years in prison and ordered to pay nearly $42 million in restitution to
the Maryland Deposit Insurance Fund. Billman's principal argument
is that the prosecution of the wire and mail fraud counts was contrary
to the terms of the French extradition decree, and therefore barred.
The United States requested extradition of Billman under the
Franco-American extradition treaty of 1909. Article VII of the Treaty
incorporates the "doctrine of specialty," which prohibits the request-
ing nation from prosecuting the extradited individual for offenses
other than those on which the surrendering nation agreed to extradite.1
See United States v. Rauscher, 119 U.S. 407, 418-19 (1886); United
States v. Khan, 993 F.2d 1368, 1373 (9th Cir. 1993). Compare United
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1 "No person surrendered by either of the High contracting Parties to
the other shall be triable or tried or be punished for any crime or offence
committed prior to his extradition, other than the offence for which he
was delivered up . . . ." Extradition Convention, Jan. 6, 1909, U.S.-Fr.,
art. VII, 37 Stat. 1526, 1531 ("Treaty").
2
States v. Alvarez-Machain, 504 U.S. 655, 659-60 (1992) (distinguish-
ing Rauscher on the ground that the defendant was not before the
court by virtue of a treaty). Article I of the Treaty allows for extradi-
tion "only . . . upon such evidence of criminality as, according to the
laws of the [surrendering nation], would justify his or her apprehen-
sion and commitment for trial if the crime or offence had been there
committed." 37 Stat. at 1527. Article II of the Treaty, as amended,
provides a list of crimes for which extradition"shall be granted . . .
if they are punished as crimes or offenses by the laws of both States."
Supplementary Convention, Feb. 12, 1970, U.S.-Fr., art. II, 22 U.S.T.
408, 409 ("Treaty Supp."). Although mail fraud and wire fraud were
not covered by Article II of the original Treaty, they are covered by
the 1970 supplement to the Treaty, see id., art. II, ¶ 18,2 and thus
extradition for those counts "shall be granted" under the explicit terms
of the Treaty if the crimes are also punished as crimes or offenses by
France.3
French law apparently provides that requests for extradition are ini-
tially considered by the Paris Court of Appeals, which issues a recom-
mendation known as "Enacting Terms." The "Enacting Terms" are
then forwarded to the Prime Minister, who makes the decision upon
which, if any, of the offenses to grant extradition. Appellant's Br. at
9 (citing Law of March 10, 1927, Arts. 13-17). The Prime Minister
then issues a Decree of extradition, at which point the proceedings of
the Paris Court are "absorbed" into the decree and "deprived of any
autonomous existence." A party may take an appeal from the Decree
itself, but no appeal was taken in this case.
The Paris Court found that all four crimes with which Billman was
charged -- conspiracy, racketeering, mail fraud, and wire fraud --
were "unknown in French penal law." J.A. at 143-44. Thus, in its
view, Article II of the amended Treaty did not provide authority for
extradition as to those particular crimes. But the Paris Court also
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2 Adding "Use of the mails or other means of communication in con-
nection with schemes devised or intended to deceive or defraud the pub-
lic or for the purpose of obtaining money or property by false pretenses"
to the list of crimes covered by Article II. 22 U.S.T. at 409.
3 RICO and conspiracy are concededly not covered, and Billman was
not prosecuted for those counts of the indictment.
3
reviewed the evidence supporting the wire fraud counts, and found
that although "French law does not punish these actions as such," the
conduct giving rise to the charges does support the French crime of
"abus de confiance," or "breach of trust." J.A. at 144-45; 170-71. Sim-
ilarly, the Paris Court found that the evidence supporting the mail
fraud counts constituted the French crime of "escroquerie," or "fraud."
J.A. at 146; 172. Extradition for the latter two categories of crimes
was thus permitted, according to the Paris Court, under Article II of
the Treaty, paragraph 7 ("breach of trust" or"abus de confiance et
detournements") and paragraph 8 ("obtaining money or other property
by false pretenses" or "escroquerie"). See Supp. Treaty, art. II, ¶¶ 7,
8, 22 U.S.T. at 409, 413. The Paris Court therefore issued an order
recommending in favor of extradition, "but only with respect to the
infractions termed breach of trust and fraud, and hence to the exclu-
sion of the infractions termed conspiracy, criminal organization, mail
fraud and wire fraud, in connection with which the Criminal Court
believes it would be inappropriate to approve the request." J.A. at
150. The Prime Minister adopted the recommendation of the Paris
Court and, through an Extradition Decree, granted extradition "only
for the offenses called swindle [fraud] and fraudulent misuse of funds
[breach of trust]." J.A. at 176.4
Both the opinion of the Paris Court and the Extradition Decree
were thus self-contradictory: extradition was not granted for the mail
and wire fraud counts, but it was granted for those same counts
because the conduct giving rise to those counts was also criminal
under French law. Billman filed a motion in federal district court
seeking release from custody in France, in which he argued that since
the Decree only authorized prosecution for "swindling" and "fraudu-
lent misuse of funds," he could not be held because those were not
crimes listed in the United States code nor charged in the indictment.5
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4 The different language is a result of a different English translation,
not an alteration from the recommendation of the Paris Court. Both the
Paris Court and the Extradition Decree granted extradition for the crimes
of "escroquerie" and "abus de confiance," J.A. at 174, 178, which, for
consistency, we translate as "fraud" and "breach of trust."
5 The Government argues that the"doctrine of specialty" confers a right
to enforce the terms of the extradition decree only upon the extraditing
4
While that motion was pending, the United States Government
sought clarification of the Paris Court's order and of the Extradition
Decree by filing, through the Attorney General of France, a "request
for interpretation" with the Paris Court. Appellee's Br. at 8; J.A. at
260. The Paris Court issued a decision in which it clarified its earlier
opinion and, by implication, the identical language of the Extradition
Decree based upon that opinion, stating that the Conspiracy and
Racketeering counts were not extraditable offenses, but that the mail
and wire fraud counts were, because, although they"do not exist as
such under French law, [Billman's actions] nonetheless . . . constitute
the offenses of breach of trust and fraud provided for and repressed
under the French Code." J.A. at 271. Based on the clarifying opinion
of the Paris Court, the district court denied Billman's motion for
release. Billman's attempts to avoid the clear import of the decision
by the Paris Court are unavailing.
First, Billman asserts that the Extradition Decree unambiguously
denied extradition for the mail and wire fraud counts, and that, pursu-
ant to Article VI of the Treaty, that denial is unreviewable in Ameri-
can courts. While Billman is correct in asserting that the decision of
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nation, not the individual extradited. While we need not address this
argument because we find Billman's challenge without merit in any
event, we note that, at the very least where, as here, the Treaty itself vests
the defendant with a right to raise the doctrine of specialty, then the chal-
lenge must be permitted. See United States ex rel. Donnelly v. Mulligan,
74 F.2d 220 (2nd Cir. 1934); see also Fiocconi v. Attorney General of
United States, 462 F.2d 475, 478 n.4 (2nd Cir.) (referring to the French
treaty as conferring such a right), cert. denied, 409 U.S. 1059 (1972);
Khan, 993 F.2d at 1373-75 (implicitly interpreting similar provision in
the extradition treaty between the United States and Pakistan as confer-
ring such a right); cf. Rauscher, 119 U.S. at 422 (stating that a court can-
not decline to give force to a "specialty" provision in an extradition treaty
which does not explicitly confer a right in the defendant himself, "with-
out an implication of fraud upon the rights of the party extradited, and
of bad faith to the country which permitted his extradition" (emphasis
added)); Fiocconi, 462 F.2d at 478 (recognizing that the Court in
Rauscher rejected the argument that an extradition treaty "confers no
rights [to raise a violation of the doctrine of specialty] on persons who
have been . . . extradited unless this has been spelled out").
5
the French government is unreviewable in the courts of the United
States, see Johnson v. Browne, 205 U.S. 309 (1907) (holding, with
regard to a similar provision in another treaty, that "[w]hether the
crime came within the provision of the treaty was a matter for the
decision of the [surrendering] authorities, and such decision was final
by the express terms of the treaty itself"), he is incorrect in asserting
that the Extradition Decree is unambiguous.6 In fact, as described
above, it is self-contradictory, and neither Article VI of the Treaty nor
Browne require the United States courts to accept Billman's interpre-
tation of the ambiguous extradition decree.
Second, Billman claims that only the Extradition Decree, not the
opinions of the Paris Court, is binding under French law and under
the terms of the Treaty. While French law apparently does provide
that the "Enacting Terms" of the Paris Court are absorbed into the
Extradition Decree and deprived of any autonomous existence, that
proposition does not address the question whether the subsequent
opinion by the Paris Court, essentially interpreting the ambiguous
Extradition Decree,7 is similarly without force absent a subsequent
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6 Billman's argument that the Decree is unambiguous is based on his
erroneous claim that the United States sought extradition for the crimes
of "escroquerie" and "abus de confiance" in its original extradition
request in addition to the four crimes actually charged in the indictment,
and that that part of the request, and only that part, was granted. Reply
Br. at 4. The part of the extradition request to which Billman refers
explicitly addresses the racketeering count of the indictment, both by
name and code section, see J.A. at 129; the translation of that request
replaced "racketeering" with "escroquerie et abus de confiance," J.A. at
133, because there is no French word for racketeering. Both the Paris
Court and the Extradition Decree clearly rejected the request for extradi-
tion on the Racketeering Count, but used the same phrases "escroquerie"
and "abus de confiance" to describe the actions underlying the wire and
mail fraud counts. If we were to accept Billman's disingenuous charac-
terization, which has its origin solely in the confusion generated by the
imprecise translations, then we should, presumably, disallow the mail
and wire fraud prosecutions but allow Billman to be prosecuted for rack-
eteering, translated as "Escroquerie et abus de confiance" in the original
extradition request -- the very terms used in the Extradition Decree to
describe the crimes for which extradition was being granted.
7 The Paris Court appears to have"clarified" only the "Enacting
Terms," not the Extradition Decree itself, see J.A. at 266-72, but the
Extradition Decree was phrased in identical terms, see supra, note 4.
6
amendment to the Extradition Decree itself. The Treaty provides that,
for extraditions from France, the interpretation of the French govern-
ment is final. See Treaty, art. VI, 37 Stat. at 1530 ("If any question
shall arise as to whether a case comes within the provisions of this
article, the decision of the authorities of the Government on which the
demand for surrender is made shall be final."). Billman emphasizes
the word "government," Appellant's Br. at 11, in a misguided attempt
to argue that the decision of the Prime Minister, as against the Paris
Court, is what is binding, essentially misreading Article VI of the
Treaty as a kind of separation of powers clause, when the clause
clearly addresses which of the two governments -- the United States
or France -- shall be the final interpreter of an extradition decision.8
The United States submitted its request for clarification of the con-
tradictory Extradition Decree to the French Ministry of Justice (i.e.,
the relevant department of the executive branch of the French govern-
ment), which forwarded it to the Paris Court. Billman was represented
by his attorney at the hearing before the Paris Court. The clarification
issued by the Paris Court can therefore properly be deemed the "deci-
sion" of the French government which would be unreviewable under
Billman's characterization of Article VI of the Treaty. That decision
clearly permits prosecution on the mail and wire fraud counts, and the
district court therefore properly denied Billman's motion for release
from custody.
We have also reviewed Billman's several claims regarding the
scope of the indictment, evidentiary issues, and the sufficiency of the
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8 Moreover, although the United States does not make the argument,
the language from Article VI on which Billman relies appears to apply
only to offenses that come "within the provisions" of Article VI itself,
namely, "offence[s] of a political character." 37 Stat. at 1530; see also
Supp. Treaty, art. VI, ¶ 4, 22 U.S.T. at 410 ("Extradition shall not be
granted . . . If the offense for which the individual's extradition is
requested is of a political character, or if he proves that the requisition
for his surrender has, in fact, been made with a view to try or punish him
for an offense of a political character. If any question arises as to whether
a case comes within the provisions of this subparagraph, the authorities
of the Government on which the requisition is made shall decide.").
7
evidence, and find them to be equally without merit. Accordingly, we
affirm the judgment of the district court.
AFFIRMED.
8