Failure to Pursue Fugitive Not a Speedy Trial Violation

Wednesday, November 19, 2008

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Failure to Pursue Fugitive Not a Speedy Trial Violation—C.A.

By STEVEN M. ELLIS, Staff Writer

The State of California’s failure to aggressively pursue disgraced political mega-bundler Norman Hsu after he fled from justice 16 years ago before sentencing on a plea to a grand theft charge did not violate his right to a speedy trial, the First District Court of Appeal held yesterday.

Upholding Hsu’s conviction and three-year prison sentence, Div. Four concluded that the former Democratic Party fundraiser was more to blame for the delay than the government, and rejected his contention that he should have been able to rescind his plea agreement because the judge who was required to sentence him under it retired eight years ago.

Hsu was charged in California in 1991 with 16 counts of grand theft after the collapse of an alleged “pyramid or ‘Ponzi’ scheme” in which he solicited investments in a fictional latex glove business, but used money obtained from later investors to pay earlier investors.

He entered a no contest plea in 1992 before San Mateo Superior Court Judge Aram Severian to one count of grant theft, with an admission that he took more than $100,000, under an agreement which called for a three-year sentence, to be imposed by Severian.

However, Hsu fled prior to sentencing, and spent a number of years in Asia before returning to the United States in the late 1990’s.

Political Contributions

In 2003, with no effort to hide his identity despite his fugitive status, Hsu began contributing to, and collecting contributions for, political candidates and other causes. By 2007, he had raised over $100,000 in “bundled” funds for Hillary Rodham Clinton’s 2008 presidential campaign, even though he was neither a party member nor registered to vote.

When Hsu learned that year that he was about to be arrested on a bench warrant from the 1992 charge, he arranged for his surrender in August and appeared in court and posted $2 million cash bail. However, when he once again failed to report for sentencing, another bench warrant issued, and he was taken into custody by FBI agents and extradited to California after falling ill on an Amtrak train in Colorado bound for Denver.

Back in California, Hsu moved to dismiss the charges on the basis that the 15-year delay in sentencing violated his constitutional rights, claiming that authorities could easily have found and arrested him during those years.

Noting Severian’s retirement from the bench in 2000, Hsu also asserted he was entitled to withdraw his plea under People v. Arbuckle (1978) 22 Cal.3d 749, which generally provides that when a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term is that sentence will be imposed by that judge.

Three-Year Sentence

But San Mateo County Judge Stephen Hall denied both motions in January of this year and sentenced Hsu to the bargained-for term of three years in state prison, a decision Presiding Justice Ignazio J. Ruvolo wrote was correct on appeal.

Assuming, “[o]ut of an abundance of caution,” that Hsu’s flight might not have waived his speedy trial claim, Ruvolo said that Hall had correctly denied Hsu’s motion given the reason for the delay, as well as the defendant’s failure to invoke the right during his 15 years of flight or show any prejudice.

“While it is unclear how Hsu could have engaged in such prominent political activity without being detected, [his] flight to avoid being sentenced must be weighed more heavily than the ensuing failure of the government to apprehend him,” the judge wrote.

Pointing to the prosecution’s declaration that there are more than 100,000 arrest and bench warrants outstanding in California at any given time, Ruvolo opined that “the government should have discretion concerning how to allocate its finite investigative resources and…cannot be expected to pursue each of these 100,000 individuals with the effort it might expend to capture, for example, a serial killer.”

Ruvolo similarly rejected Hsu’s contention that he could withdraw his plea agreement, emphasizing that “Hsu himself caused the failure of the Arbuckle condition.”

He explained:

“If we sanctioned such an argument, any defendant who expressly demanded the right to be sentenced by the judge who accepted his or her plea could secure a tactical advantage by entering a plea and then fleeing––hopefully delaying sentencing to such a point where the judge who took the plea was no longer on the bench and a trial on the original charges was unlikely or impossible because the evidence was diminished by the passage of time. Such a ruling would enhance the attractiveness of flight, something we refuse to encourage here.”

Justices Timothy A. Reardon and Patricia K. Sepulveda joined Ruvolo in his opinion.

The case is People v. Hsu, A120768.