United States v. Michael Heshelman

521 F. App'x 501
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 12, 2013
Docket10-1049, 10-1223
StatusUnpublished
Cited by9 cases

This text of 521 F. App'x 501 (United States v. Michael Heshelman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Michael Heshelman, 521 F. App'x 501 (6th Cir. 2013).

Opinions

HELENE N. WHITE, Circuit Judge.

Defendants-Appellants Michael Heshel-man (“Heshelman”) and Bryce Sherwood (“Sherwood”) appeal the district court’s determination that the approximately three-year delay between indictment and trial did not violate their Sixth Amendment speedy trial rights, and also allege error in the court’s calculation of their respective sentences. In addition, Heshel-man challenges the restriction on cross-examination of his co-conspirators. Because we conclude that the appellants’ speedy trial rights were violated, we REVERSE.

I.

On February 23, 2006, twenty days before the statute of limitations would have [503]*503expired, the government filed a fifty-three count indictment against Heshelman, Sherwood and Dennis Mickelson (“Mickelson”), alleging conspiracy, wire fraud, money laundering, international money laundering, and forfeiture. All counts in the indictment stem from a Ponzi scheme run by Heshelman, Sherwood and Mickelson between 1999 and 2006. The last overt act alleged in the indictment occurred in 2001. The government moved to seal the indictment the day it was filed “in order that the execution of the arrest warrant be unimpeded and the investigation continue.” Although the court granted the motion, the government conducted no further investigation of the indicted charges except to keep a journal of Heshelman’s contacts with one of the victims.

HESHELMAN

At the time of the indictment, the government knew Sherwood’s and Mickelson’s addresses and that Heshelman probably lived in Zurich, Switzerland. The government did not have Heshelman’s address at that time but subsequently discovered that Heshelman listed a Swiss address on his passport application. Although the United States has an extradition treaty with Switzerland that covers all of the charges in the indictment, the government decided not to immediately pursue Heshelman’s extradition due to concerns that the Swiss government would refuse to extradite him on the money laundering counts. In July 2006, the United States submitted a request for a legal opinion from the Swiss government on whether it would extradite Heshelman on the money laundering counts but did not receive a response at that time.

Due to Swiss regulations, the government was not allowed to either independently pursue Heshelman in Switzerland or initiate any contact with Heshelman, but had to pursue all contact through the FBI’s legal attaché office in Switzerland. However, in 2006, Heshelman attempted to contact FBI Agent Timothy Wetherbee (“Agent Wetherbee”), the primary agent assigned to Heshelman’s case, and left multiple voicemails. Heshelman finally reached Agent Wetherbee on November 16, 2006. During this telephonic conversation, Heshelman informed Agent Wether-bee that he knew he was under investigation in the United States and complained that no one had contacted him about the investigation’s status and that the investigation was hampering his business. When Agent Wetherbee requested Heshelman’s address, Heshelman responded that he lived in Zurich, Switzerland, but declined to give his exact address, stating “If I tell you where I am living, you will come and arrest me.” During this phone conversation Agent Wetherbee neither asked Hesh-elman to return to the United States nor informed Heshelman about the indictment.1

Although the government delayed seeking Heshelman’s extradition, it sought the Swiss government’s assistance in locating Heshelman. In September and November 2006, and February 2007, Agent Wether-bee asked the Swiss government if it could locate a physical address for Heshelman based on his telephone number and Internet protocol address.2 The Swiss government responded in January 2007 that it was unable to locate Heshelman and in [504]*504June 2007 that it had traced the Internet protocol address to an Internet cafe. Agent Wetherbee’s February 2007 request to the Swiss government was the last attempt by the government to locate Heshel-man or actively secure his return to the United States for almost two years.

In December 2007, the Swiss government informed Agent Wetherbee that it had a possible address for Heshelman but would not proceed further without a provisional arrest warrant. The government decided to take no action out of concern that it would be obligated to extradite Heshelman within a specified period of time without knowing for certain whether the Swiss government would extradite him on the money laundering charges.

In addition to extradition, the government had another available option for locating and arresting Heshelman — obtaining a notice of outstanding arrest warrant (red notice) through Interpol. When a person who is the subject of a red notice tries to enter a country, a red notice is triggered notifying the authorities that the person is wanted by another country. The country is then notified of the person’s location. Although some countries will arrest a person who is subject to a red notice, others, including Switzerland, will not. While living in Switzerland, Heshel-man traveled throughout Europe and the Dominican Republic using his own passport; thus, presumably, a red notice would have triggered a notice to the government of his whereabouts, and possibly his arrest. The government decided not to seek a red notice due to the lack of control over which country would locate Heshelman and the possibility of that country not having an extradition treaty with the United States.

Around March 2008, the United States Attorney’s Office in the Western District of Michigan decided to start gathering the requisite information in the event the government decided to pursue extradition. In May 2008, those documents were submitted to the Department of Justice. However, the government did not actively pursue Heshelman’s extradition until around November or December 2008, when the Swiss government notified the United States that Heshelman had been arrested by Swiss authorities for a fraud perpetrated in Switzerland. The Swiss government informed the United States that it knew Heshel-man’s location and would cooperate with the United States if it had a provisional arrest warrant, but absent a provisional arrest warrant, Heshelman might be deported to a country of his choice. At that point, the United States concluded that the only option was to obtain a provisional arrest warrant and seek Heshelman’s extradition.

The court unsealed the indictment on December 12, 2008, so that it could be attached to the extradition packet. The United States requested Heshelman’s extradition on February 2, 2009. Although Heshelman contested the extradition, the Swiss government granted the United States’ request on February 27, 2009.

The U.S. Marshals returned Heshelman to the United States between March 17 and March 27, 2009. Heshelman’s seven-day jury trial commenced on June 2, 2009, and the jury convicted him on all counts.

SHERWOOD

On December 18, 2008, FBI agents informed Sherwood that there was a warrant for his arrest. Soon thei’eafter, Sherwood contacted Agent Wetherbee and indicated he wanted to cooperate and voluntarily surrender. Mickelson also voluntarily surrendered himself in December 2008, after being informed of the arrest warrant and asked if he could cooperate. Mickeslon and Sherwood pleaded guilty to count one [505]*505of the indictment (conspiracy to commit wire fraud) on May 19, 2009 and May 26, 2009, respectively.

II.

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Bluebook (online)
521 F. App'x 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-heshelman-ca6-2013.