Law360, Los Angeles (May 24, 2017, 10:36 PM EDT) — A Volkswagen AG executive accused of aiding in the conspiracy to cover up the diesel emissions test scandal will remain in pretrial detention after a Sixth Circuit panel on Wednesday denied his bid to overturn a lower court decision that ruled him a flight risk.
Oliver Schmidt, 48, is a German citizen who prosecutors say headed up VW’s U.S. engineering and environmental office until 2015 before returning to work for the company in his native Germany. He was accused earlier this year of playing a role in the conspiracy to cover up the emissions testing scandal. After a Michigan federal judge denied his attempt at pretrial release, he took the detention order up to the Sixth Circuit.
In a brief order issued Wednesday, a panel affirmed the detention order that had cited the seriousness of the charges in determining Schmidt was a potential flight risk.
“The record demonstrates that the district court considered the relevant statutory factors, and we find no clear error in the district court’s factual findings,” the panel said. “Upon de novo review, we agree that no condition or combination of conditions will reasonably assure Schmidt’s appearance as required.”
Schmidt was arrested in January as he was leaving the United States from Miami-Dade International Airport, according to court records. A few days later, he was charged in 11 counts of an 18-count second superseding indictment related to the VW diesel emissions scandal in Michigan federal court. Counts include one count of conspiracy to defraud the United states, commit wire fraud and violate the Clean Air Act, two counts of making false statements in violation of the Clean Air Act and eight counts of wire fraud.
Prosecutors accused Schmidt, along with five other VW executives, of participating in a conspiracy to defraud the United States and consumers, and to violate the Clean Air Act by cheating on its emissions tests. The overall scheme purportedly began in 2006 when VW designed and installed illegal defeat device software in diesel-fueled cars, and prosecutors say Schmidt helped cover up the conspiracy.
A Florida federal court magistrate judge initially ordered Schmidt detained pending trial, holding that Schmidt was a flight risk. U.S. District Judge Sean F. Cox subsequently ordered him detained pending trial after a detention hearing in mid-March, finding the charges against Schmidt “are very serious and weigh in favor of detention.”
Judge Cox also determined Schmidt is a flight risk, and noted how Germany does not extradite its citizens to the United States.
In appealing Cox’s detention order, Schmidt, who was described as “a mid-level current employee” of VW, argued he wasn’t a flight risk despite his German citizenship. He noted his willingness to surrender his passport, as well as four declarations and affidavits as well as 53 attesting that he is not a flight risk. Schmidt also offered to post $1.6 million bail, according to court records.
But federal prosecutors countered that the lower court made no error in determining Schmidt is a flight risk, citing his extensive personal, professional and financial ties to Germany and the country’s constitutional prohibitions against extradition.
Representatives for Schmidt and federal prosecutors didn’t immediately return requests for comment late Wednesday.
U.S. Circuit Judges Richard F. Suhrheinrich, Karen Nelson Moore and Deborah L. Cook sat for the panel.
Schmit is represented by David B. Massey and Margaret Winterkorn Meyers of Richards Kibbe & Orbe and David F. DuMouchel and Joseph E. Richotte of Butzel Long.
Federal prosecutors in the appellate case include John K. Neal, Jennifer Leigh Blackwell and Benjamin Singer.
The appeal case is USA v. Oliver Schmidt, case number 17-1336 in the U.S. Court of Appeals for the Sixth Circuit. The lower court case is USA v. Liang et al., case number 2:16-cr-20394 -SFC-APP-6 in the U.S. District Court for the Eastern District of Michigan.
–Editing by Pamela Wilkinson.