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United States v. Demirtas

United States District Court, District of Columbia

September 2, 2016

UNITED STATES OF AMERICA
v.
IRFAN DEMIRTAS

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS United States District Judge

         This matter is currently before the Court on the defendant's motion to dismiss the indictment for violation of his Sixth Amendment right to a speedy trial. Dkt. 24. For the reasons explained below, the Court will deny that motion.

         I. FACTUAL BACKGROUND

         The defendant, Irfan Demirtas, is a Dutch and Turkish citizen. Dkt. 58-1 at 2; Dkt. 67-1 at 3. He is charged with providing, attempting to provide, and conspiring to provide material support to terrorists, in violation of 18 U.S.C. § 2339A (Count I); providing, attempting to provide, and conspiring to provide material support or resources to a designated terrorist organization (the Islamic Movement of Uzbekistan ("IMU")) in violation of 18 U.S.C. § 2339B (Count II); receiving military-type training from a foreign terrorist organization in violation of 18 U.S.C. § 2339D (Count III); using, carrying, possessing, brandishing, or discharging a firearm during and in relation to a crime of violence, to wit, Counts I-III, in violation of 18 U.S.C. § 924(c)(1)(A) (Count IV); as well as aiding and abetting the foregoing crimes, in violation of 18 U.S.C. §2. Dkt. 3.

         Prior to his indictment on these charges, Dutch police arrested Demirtas on May 16, 2008, in the Netherlands pursuant to a European Arrest Warrant issued by French authorities, who were pursing their own investigation of Demirtas's involvement with the IMU. Dkt. 58-1 at 2; Dkt. 80-2 at 3. On July 18 or 19, 2008, Demirtas was delivered to France pursuant to that warrant. Dkt. 24; Dkt. 58-1 at 2; see Dkt. 78-13. In accordance with Dutch law and pursuant to an order of a Dutch court, the Dutch surrender of Demirtas to the French was conditioned on a promise that, if Demirtas was convicted and sentenced by the French, "he may serve his sentence in the Netherlands." Dkt. 78-13 at 4 (citing Article 6 of the Dutch Surrender of Persons Law).

         The French then detained Demirtas pending an investigation by a French magistrate specializing in counterterrorism investigations.[1]Transcript of Aug. 3-4, 2016 Hearing ("Aug. 3-4 Tr.") at 33 (Dkts. 81, 83, 84). The French investigation culminated in charges that Demirtas "direct[ed] an[d] organiz[ed] a criminal conspiracy to plan acts of terrorism and finance[ed] a terrorist undertaking." Dkt. 73-1 at 2; Transcript of June 1, 2016 Hearing ("June Tr.") at 48 (Dkt. 69).

         In late 2008, the Federal Bureau of Investigation ("FBI") learned that Demirtas was in French custody and commenced its own investigation. Dkt. 24 at 2; Dkt. 44 at 4. As part of that investigation, the FBI and Assistant United States Attorney Michael C. DiLorenzo interviewed Demirtas on September 24, 2009, while he was in French custody. Dkt. 58-7 at 2. Over two years later, on December 8, 2011, a U.S. grand jury returned an indictment under seal containing the charges outlined above. See Dkt. 3.[2] All four counts stemmed from Demirtas's alleged ties to the IMU. Id. A magistrate judge issued a bench warrant for Demirtas's arrest, also under seal, the same day.

         On January 18, 2012, the U.S. government issued an Interpol diffusion seeking Demirtas's identification and detention pending a formal request for extradition (also known as a provisional arrest). Dkt. 58-8 at 3; see June Tr. at 6. The following day, DiLorenzo contacted Monique Roth, atrial attorney with the Department of Justice's ("DO J") Office of International Affairs ("OIA"), who served as the DOJ's attache in Paris, seeking assistance with an extradition from France in what he referred to as the "IMU case." Dkt. 67-3 at 2 (Carter Decl. ¶ 6); see Aug. 3-4 Tr. at 29, 32; Dkt. 79-8 at 1. As the DOJ's attache in Paris, Roth "was essentially the representative of the Central Authority for the United States for all mutual legal assistance and extradition matters with the French." Aug. 3-4 Tr. at29.[3] Roth responded to DiLorenzo on January 20, 2012, with general information about the extradition process. Dkt. 79-8 at 2.

         On January 27, 2012, in response to the Interpol diffusion, an official from the French Ministry of Justice-the French Central Authority for extradition matters-telephoned Roth about Demirtas's case. Aug. 3-4 Tr. at 31-32, 48.[4] Roth documented the conversation in a "memo to file, " stating that her French counterpart had told her that "France can't act on" the "provisional] a[rrest] request that's been diffused through Interpol" because the French "got [Demirtas] from the Netherlands on a European Arrest Warrant." Dkt. 79-8 at 7-8; see also Aug. 3-4 Tr. at 38, 60. Roth wrote that "[t]he Netherlands conditioned (as it always does) its surrender of a Dutch citizen (which, apparently, [Demirtas] is) . . . pursuant to a European Arrest Warrant on the agreement of. . . France[] to return the person to the Netherlands to serve any sentence imposed in . .. France[]." Dkt. 79-8 at 8. According to Roth's memo,

That means that if Demirtas is convicted here [in France], he gets shipped immediately to the Netherlands to serve the sentence there. For that reason, France cannot authorize/approve his extradition to the States. Because France will not extradite a guy while incarcerated in France on French charges (the situation now with his pretrial detention) and because they couldn't extradite him upon conviction ([because] he has to be returned to the Netherlands), the request for provisional arrest or extradition would be immediately denied.

Id. Roth further explained that she had inquired about submitting a provisional arrest request as "insurance" "in the event the case goes bust in France, " but her French counterpart responded that any such request would be denied and that, in any event, "there is a [ten-]day delay before release from the date of any court decision that would result in his freedom, so [the U.S. government would] have sometime to get the [provisional arrest request] served." Id. Finally, Roth recounted that she had proposed contacting the French magistrate directly in order "to get a better feel for the strength of the case and timing, " but that her French counterpart had said she "could not do that." Id. Roth wrote that her counterpart's conclusion "make[s] little sense" and "would leave them with no information at all." Id.

         That same day, Roth's French counterpart emailed her "[t]o follow up on [their] phone conversation." Dkt. 58-8 at 2. The French official stated:

[t]he French authorities cannot respond to [the U.S. Interpol diffusion], to the extent that Irfan Demirtas, a Dutch national, was given to us by the Netherlands as a part of a European arrest warrant, and France promised to return him to the Netherlands to execute the possible sentence. . . .
France being committed to the Netherlands to return [him] .. ., it cannot give him to a different country which might ask for his return as part of either a European arrest warrant or an extradition request. Besides, [the investigating magistrate] just told me that he thinks the judicial investigation should end from now until July 2012. I wanted to let you know so that you could, if necessary, seek out the Dutch authorities in due course.

Id. In light of this information, Roth told DiLorenzo, who was preparing a French extradition package, to "put [his] pen down." Dkt. 79-8 at 5-6.

         Notwithstanding the French official's admonition, Roth then contacted the French magistrate assigned to Demirtas's case. Aug. 3-4 Tr. at 35-36. On January 31, 2012, Roth emailed DiLorenzo to inform him that the magistrate had told her that the investigation needed to be finished by "May/June 2012"; that the trial would take place in late 2012 or early 2013; and that Demirtas was "sure to be convicted" and would "likely [receive a sentence of] 5-7 years." Dkt. 79-8 at 11; cf. Aug. 3-4 Tr. at 47, 50 (Roth's testimony of her recollection that, notwithstanding the foregoing, she was told that the investigation would end in July 2012). She also told DiLorenzo that "[t]here is no way that we can get him temporarily before trial" and that "[a]s you know, .. . you can't get him afterwards as he'll be shipped straight away to the Netherlands." Dkt. 79-8 at 11; see also Aug. 3-4 Tr. at 37. Roth suggested that DiLorenzo talk to Judith Friedman, a senior trial lawyer at OIA responsible for the Netherlands, "to find out whether the Dutch are typically amenable to giving us temporary surrender while the subject is doing time in their prison." Dkt. 79-8 at 11; see also Dkt. 71-1 at 1-2 (Friedman Decl. ¶¶ 1-3); Aug. 3-4 Tr. at 103. Roth copied Friedman on the email. Id.

         In the same email, Roth added a note directed to Friedman. Id.[5] Roth explained that Demirtas was in the custody of the French pursuant to a European Arrest Warrant that included a "promise[] to remit the person to the Netherlands to serve any sentence imposed." Dkt. 79-8 at 11. She further stated that "France will not entertain an extradition request from us (they can't grant extradition while he's pending trial, and they won't have the body upon conviction)" and that DiLorenzo thus needed to "gear up to pursue extradition from the Netherlands when Demirtas is returned to them." Id.

         Friedman replied later that day. See Dkt. 79-8 at 12. She explained that once Demirtas arrived in the Netherlands, his sentence would be "convert[ed]" to a Dutch sentence, which can be no longer than the French sentence, and that he would serve only two-thirds of the converted sentence. Id. Friedman stated that although "[t]he Dutch will do a temporary surrender[, ] .. . extraditing a Dutch national generally takes about [one-and-one-half to two] years, so the timing may be such that a temporary surrender doesn't make sense." Id. Friedman also noted that, if the United States did obtain custody of Demirtas from the Netherlands, it would be conditioned on his return to the Netherlands to serve any sentence imposed by the U.S. court. Id. Finally, Friedman invited further questions. Id.

         On April 19, 2012, DiLorenzo again touched base with Friedman and Roth, explaining his understanding that both France and the Netherlands would deny an extradition request while Demirtas was in French custody-France because "he [is] only on loan to them, " and the Netherlands because "he is not present in [t]he Netherlands." Dkt. 79-8 at 15. DiLorenzo expressed frustration, stating, "We should be able to resolve this issue with our [two] allies. Any suggestions .. . ?" Id. Later that same day, DiLorenzo asked Friedman and Roth whether "France and [t]he Netherlands [would] consider lending [Demirtas] to [the United States] for trial, " with any sentence imposed in the United States to be served in the Netherlands after the conclusion of the French case. Id. at 17. Roth responded that she had "already confirmed" that France would "not entertain" an extradition request in light of the promise to return Demirtas to the Netherlands. Id. at 18-22. Friedman, in turn, responded that obtaining a temporary surrender from the Dutch "can take [two] years." Id. at 20. In the course of this same email chain, Friedman also flagged the risk that, "if the French are prosecuting [Demirtas] on the same fact pattern, the Dutch will claim double jeopardy." Dkt. 79-8 at 16. "Assuming that's not the case, " she confirmed that "it does look like you'll have to wait until he returns to the Netherlands" to seek extradition. Id.

         On June 1, 2012, the U.S. government issued an Interpol Red Notice seeking the provisional arrest of Demirtas "with a view to[ward] extradition." Dkt. 67-5 at2.[6] Meanwhile, Roth and her successor as DOJ's Paris attache continued to check in with their French counterpart to monitor the status of the French proceedings. Aug. 3-4 Tr. at 29, 52-54. In September 2012, the new attache received word that Demirtas's trial was scheduled to begin that month. Id. at 53; Dkt. 79-5 at 3.

         On September 6, 2012, DiLorenzo emailed Roth and Friedman, asking whether and where he could "move for [Demirtas's] extradition." Dkt. 79-8 at 23. Friedman replied that "it[] [was] not promising, " because, after the French conviction, Demirtas would be sent back to the Netherlands and, "[i]f [the United States] ask[s] the Dutch for his extradition (since the Dutch will have to approve, even if we sent the request to the French), extradition will be denied if the facts are basically the same." Id. at 24. Roth in turn responded that she was no longer the DOJ attache in Paris and copied her successor. Id. at 25. She reiterated France's position that it "cannot consider a U.S. extradition request [because] [France] [is] committed ... to returning him to the Netherlands, " adding, "[t]hus, your energies need to be focused on the Netherlands." Id. DiLorenzo then asked Friedman whether he could request Demirtas's extradition from the Netherlands at that time, or whether he "ha[d] to wait until he is returned to [t]he Netherlands . .. ?" Dkt. 79-8 at 26. Friedman responded that "[r]equests can only go to where the body is." Id. at 34. DiLorenzo subsequently requested clarification as to whether she meant that DiLorenzo "ha[d] to wait until France is done, " but Friedman did not respond. Id. at 35.

         On January 25, 2013, the DOJ attache in Paris (Roth's successor) again asked his French counterpart about the status of the French proceedings. Dkt. 67-2 at 6. The French official responded the same day, informing the attache that on January 8, 2013, Demirtas had been convicted and sentenced to eight years' imprisonment. Id. at 7; see also Dkt. 78-6 (French judgment). Following this news, the U.S. government took no steps to extradite Demirtas from France. Aug. 3-4 Tr. at 88-89, 296; see also Dkt. 79-8 at 41-43.

         Approximately six months later, on July 17, 2013, France returned Demirtas to the Netherlands. Dkt. 58-1 at 2. He was released the same day pending a September 24, 2013, Dutch hearing to "convert" the French sentence to a Dutch one-in essence, a procedural resentencing proceeding. Dkt. 58-1 at 2; Aug. 3-4 Tr. at 137.[7] On October 8, 2013, Demirtas was resentenced to time served-that is, to ninety months with early release after two-thirds served. Dkt. 58-1 at 2; Dkt. 71-1 at 11 (Friedman Decl. ¶ 19); Aug. 3-4 Tr. at 136-37. Accordingly, following his transfer to the Netherlands on July 17, 2013, Demirtas served no further time for the French conviction.

         Pursuant to the Red Notice previously issued by the U.S. government, a Dutch official immediately informed Friedman of Demirtas's presence in the Netherlands and his release from custody. Dkt. 67-1 at 8; Dkt. 71-1 at 7 (Friedman Decl. ¶ 10); Aug. 3-4 Tr. at 135. The Dutch official, who was Friedman's contact for complex extradition matters, served as a senior legal advisor to the Dutch Minister of Security and Justice and as Deputy Director of the Office of International Judicial Assistance within the Ministry of Security and Justice, which is the Central Authority for the Netherlands. Aug. 3-4 Tr. at 103, 244. Upon learning of Demirtas's release, Friedman told her Dutch contact, "I can confirm that we want him, " but then, recognizing that the U.S. extradition treaty with the Netherlands contains an exclusion in cases of "prior jeopardy, " qualified that "we don't want to ask for his arrest if it's going to be double jeopardy." Dkt. 67-1 at 10, 12.

         Prior jeopardy-also known as non bis in idem-is a concept incorporated in many bilateral extradition treaties and in Dutch domestic law, which precludes extradition in certain cases where the subject of the extradition request has previously been placed in "jeopardy" on the same or similar charges. See, e.g., Dkt. 71-1 at 4-5, 7-8 (Friedman Decl. ¶¶ 6, 11); Restatement (Third) of Foreign Relations Law § 476 (1987) ("Under most international agreements ... [a] person sought for prosecution . .. will not be extradited ... if prosecution in the requesting state would be, or was, in contravention of an applicable principle of double jeopardy . .. ."). It is distinct from the prohibition on double jeopardy contained in the Fifth Amendment to the U.S. Constitution, which does not apply to successive prosecutions by "separate sovereigns." See Puerto Rico v. Sanchez Fa//e, No. 15-108, slip op. at 6 (U.S. June 9, 2016) (citing Heath v. Alabama, 4'H U.S. 82, 88 (1985)).

         Between Demirtas's July 17, 2013, release in the Netherlands and early October 2013, Friedman and her Dutch counterpart corresponded "dozens of times" about the need "to figure out .. . whether [prior] jeopardy" would preclude Demirtas's extradition from the Netherlands to the United States. Aug. 3-4 Tr. at 136-38; Dkt. 67-1 at 16-39. During this period, DiLorenzo and others were also attempting to obtain a copy of the French charges and verdict so that a prior jeopardy analysis could be performed. See, e.g., Dkt. 79-8 at73, 76, 78, 82-88, 91, 93, 95, 97, 116, 119, 126, 149-50, 200; Aug. 3-4 Tr. at 296. The acquisition of these documents was complicated by the fact that the French do not maintain an electronic docket, Dkt. 79-8 at 97, and that French officials required the United States to obtain an official order under the relevant Mutual Legal Assistance Treaty in order to access the court file, id. at 126.

         Friedman's Dutch counterpart provided her with a summary of the French charges on September 20, 2013, id. at 108, and then, on October 2, 2013, Friedman sent her Dutch counterpart a summary of the United States's case against Demirtas, Dkt. 58-4 at 2. Friedman asked her Dutch counterpart to "review and advi[s]e as to whether any/all of the charges would be eligible for extradition." Dkt. 58-4 at 2. Within twenty-four hours, the contact replied:

         The chances of extradition appear slim to me.

The overlap with the French conviction is considerable, and the time frame is exactly the same.
The only difference seems to be the firearms charge, which is still strongly connected to the other charges for which he was tried in France.
I strongly doubt the Dutch court will agree to the extradition based on these facts. Provisional arrest is unlikely anyhow, since he's Dutch and the possibility of extradition is far from certain.

Dkt. 67-1 at 44; see also Dkt. 71-1 at 3, 8 (Friedman Decl. ¶¶4, 13); Aug. 3-4 Tr. at 302.

         Based on this Dutch official's opinion, Friedman "advised the U.S. prosecutors that there would be no reason to proceed with an extradition request .. ., as we could not prevail." Dkt. 71-1 at 8-9 (Friedman Decl. ¶ 14); see also Dkt. 79-8 at 174. And, although during September 2013 U.S. officials had been preparing a provisional arrest request, they halted their efforts after hearing from Friedman. Dkt. 79-8 at 138-39, 172; Aug. 3-4 Tr. at 298. They did, however, confirm that the June 2012 Red Notice remained in place in case Demirtas traveled to another country. Aug. 3-4 Tr. at 149; Dkt. 79-8 at 206. U.S. law enforcement officials also asked then-Dutch contacts for assistance tracking Demirtas's movements, but that request was refused. Aug. 3-4 Tr. at 153-54. On January 29, 2014, Friedman requested a formalized statement of her Dutch counterpart's opinion, Dkt. 67-1 at 45-53; see also Dkt. 79-8 at 175 (DiLorenzo's October 3, 2013 request for a formalized statement "for speedy trial purposes"), which was provided on March 4, 2014, Dkt. 67-1 at 52-53. The U.S. government took no further action to obtain custody of Demirtas while he remained in the Netherlands. See Dkt. 67-1 at 45-53; Dkt. 78-8 at 41.

         On January 12, 2015, Demirtas was arrested in a German airport pursuant to the Red Notice. Dkt. 24 at 4; Dkt. 79-8 at 228. After contested extradition proceedings, Demirtas was extradited to the United States on July 17, 2015. Dkt. 67-3 at 5 (Carter Decl. ¶¶ 18-19).

         II. PROCEDURAL BACKGROUND

         Demirtas made his initial appearance before this Court on July 20, 2015. On March 9, 2016, he moved to dismiss the indictment, asserting that the lengthy delay between his indictment and his initial appearance before this Court violated his constitutional right to a speedy trial. Dkt. 24. The government filed its opposition to the motion to dismiss on April 25, 2016. Dkt. 44. The opposition relied solely on the declaration of an associate director of OIA who lacked any personal knowledge of the U.S. government's efforts to obtain custody of Demirtas. Dkt. 44-1 at 2 (Carter Decl. ¶ 3) ("This affidavit is based upon my review of the records and files at OIA relating to this matter.").[8]

         The Court initially held a hearing on the motion to dismiss on June 1, 2016.[9] Although motions of the type at issue here are typically resolved after an evidentiary hearing, see, e.g., Tchibassa, 452 F.3d at 923, the parties did not present any fact or expert witnesses at that hearing. See generally June Tr. Thus, although the government bears the burden of explaining any pre-trial delay, see United States v. Fernandes, 618 F.Supp.2d 62, 68 (D.D.C. 2009), as of the June 1 hearing, the government had failed to offer any testimony (written or live) from anyone actually involved in its efforts to obtain custody of Demirtas from France, the Netherlands, or Germany.

         In response to numerous factual questions posed by the Court at that hearing, the government requested the opportunity to make a supplemental submission. The Court granted that request over Demirtas's objection, and it permitted Demirtas to make a further submission as well. June Tr. at 159-61. The government's supplemental submission included, however, only one further declaration: a factual account by Friedman of her involvement in the matter. That declaration addressed the proceedings against Demirtas only after he had been returned to the Netherlands in July 2013. See Dkt. 71-1 (Friedman Decl.). The government thus still had not submitted any evidence based on personal knowledge regarding the period of time during which Demirtas was in French or German custody. Demirtas, in turn, submitted a declaration from an expert on Dutch extradition law, positing that the government could have extradited Demirtas from France with the consent of the Netherlands. See Dkt. 73-2.

         Given the fact-intensive nature of the relevant inquiry, the shortcomings in the then-existing record, and issues newly raised by Demirtas's supplemental submission, the Court concluded that an evidentiary hearing was warranted. See Dkt. 74. That hearing was held on August 3 and 4, 2016. The government presented the testimony of Roth, Friedman, and Marcus Busch, an OIA official involved in the German extradition, as well as documentary evidence not previously offered. See generally Aug. 3-4 Tr.; Dkt. 76.[10] The defense, in turn, presented in-person testimony of its Dutch-law expert witness, BartStapert, but due to scheduling difficulties, its expert on French law, Joseph Breham, was unable to testify. Aug. 3-4 Tr. at 94-99. Breham's direct testimony was accordingly offered in a declaration submitted on August 19, 2016. Dkt. 80-2. The government cross-examined Breham at a hearing held on August 26, 2016. The Court permitted Demirtas to make a final submission addressing an issue of French and European Union law on August 29, 2016, and heard oral argument that same day.

         The motion to dismiss for violation of Demirtas's Sixth Amendment right to a speedy trial, Dkt. 24, is, accordingly, now ripe for resolution.

         III. ANALYSIS

         The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const, amend. VI.[11] "Excessive delay in prosecuting a defendant after he is indicted or arrested violates this Sixth Amendment right." Tchibassa, 452 F.3d at 922. "Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending." United States v. MacDonald, 456 U.S. 1, 7 (1982) (citations omitted); see also United States v. Marion, 404 U.S. 307, 313 (1971). Here, Demirtas has not offered any argument or evidence in support of a Fifth Amendment due process claim, nor, as explained below, has he offered the type of affirmative evidence of prejudice necessary to sustain such a claim. See United States v. Mills, 925 F.2d 455, 464 (D.C. Cir. 1991), modified on other grounds, 964 F.2d 1186 (D.C. Cir. 1992) (en banc); infra pp. 56-57. Moreover, although Demirtas raises a statute of limitations argument in a separate motion, Dkt. 56, he does not press that defense here. And, finally, the pending motion does not invoke the Speedy Trial Act, 18 U.S.C. § 3161 etseq. Thus, for present purposes, the sole question is whether the more than three-and-a-half year delay between Demirtas's indictment and his initial appearance before this Court constitutes excessive delay for purposes of the Sixth Amendment.

         The evaluation of a Sixth Amendment speedy trial claim involves a detailed, fact-intensive inquiry in which the Court must balance multiple factors, which include the "[l]ength of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo, 401 U.S. 514, 530 (1972). "[N]one of [these] factors .. . [is] either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Id. at 533. Of these factors, however, "[t]he flag all litigants seekto capture is the second factor, the reason for the delay." United States v. Loud Hawk, 474 U.S. 302, 315 (1986); see also Fernandes, 6\S F.Supp.2d at 67 ("[T]he second factor-who is to blame for the delay-often dictates the outcome of cases."). The Court addresses in turn each of the four factors identified in Barker v. Wingo.

         A. Length of Delay

         The first Barker factor-length of delay-"entails 'a double enquiry': First, '[s]imply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay. ..." Tchibassa, 452 F.3dat923 (first alteration in original) (quoting Doggettv. United States, 505 U.S. 647, 651-52 (1992)). "[P]ostaccusation delay" crosses this threshold "at least as it approaches one year." Doggett, 505 U.S. at 652 n. 1; see also United States v. Jones, 524 F.2d 834, 849 (D.C. Cir. 1975) ("We have said that cases involving delays of more than six months are properly subject to inquiry and require justification."). Here, the delay between Demirtas's indictment on December 8, 2011, and his initial appearance before this Court on July 20, 2015, was over forty-three months. The Court, accordingly, must apply the Barker factors to determine whether Demirtas's Sixth Amendment right to a speedy trial has been violated. Second, "once the accused makes this threshold showing, 'the [C]ourt must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.'" Tchibassa, 452 F.3d at 923 (quoting Doggett, 505 U.S. at 652)). Here, the over three-and-a-half year delay was, to use the government's words, "unquestionably substantial, " Dkt. 44 at 15, albeit shorter than the "well over five[-]year" delay deemed "extraordinary" in Barker, 407 U.S. at 533-34, or the eight-and-a-half-year delay deemed "far" in excess of the threshold in Doggett, 505 U.S. at 658. At any rate, "[a]s a practical matter, once the threshold of more than one year is exceeded, the length of the delay does not strongly sway the ultimate outcome of the speedy trial issue." Fernandes, 618 F.Supp.2d at 68 (explaining that the D.C. Circuit has held "an eleven-year delay was outweighed by" the defendant's fault, while "in contrast, when a delay is the fault of the government, courts have held that delays as short as two years are unconstitutional" (citations omitted)). The significance of the length of the delay, moreover, cannot be assessed in the abstract, without first determining what portion of that delay, if any, is "attributable" to the government. See Doggett, 505 U.S. at 657-58. Hence, the Court must consider the magnitude of the delay in the relevant context.

         B. Reason for the Delay

         "Closely related to length of delay is the reason the government assigns to justify the delay." Barker 407 U.S. at 531. "The government 'has an affirmative constitutional obligation to try the defendant in a timely manner, and thus, the burden is on the prosecution to explain the cause of the pre-trial delay.'" Fernandes, 618 F.Supp.2d at 68 (quoting United States v. Graham, 128 F.3d 372, 374 (6th Cir. 1997)). It is thus the government's burden to show that it pursued the defendant "with reasonable diligence from his indictment to his arrest." Id. (quoting Doggett, 505 U.S. at 656 (internal quotation mark omitted)). That is, the "government . . . has a 'constitutional duty to make a diligent, good-faith effort' to locate and apprehend a defendant and bring the defendant to trial." United States v. Bagga, 782F. 2d 1541, 1543 (11th Cir. 1986) (quoting Smith v. Hooey, 393 U.S. 374, 383 (1969)).

         "[W]here a defendant is located abroad, ... the hallmark of government diligence is extradition." Fernandes, 6\S F.Supp.2d at 69. If "the United States has a valid extradition treaty in place with a foreign country and prosecutors formally seek extradition . .., courts routinely hold that the government has satisfied its diligence obligation." Id. (citing Tchibassa, 452 F.3d at 925). At the same time, however, good-faith, diligent efforts "do not require the government to pursue futile legal gestures." Bagga, 782 F.2d at 1543; see also, e.g., United States v. Heshelman, 521 F.App'x 501, 507 (6th Cir. 2013); United States v. Corona-Verb era, 509 F.3d 1105, 1114 (9th Cir. 2007); United States v. Blanco, 861 F.2d 773, 778 (2d Cir. 1988); United States v. Walton, 814 F.2d 376, 379-80 (7th Cir. 1987). The government can accordingly carry its burden of establishing "due diligence" by showing that it had "a good[-]faith belief supported by substantial evidence that seeking extradition from a foreign country would be futile." Corona-Verbera, 509 F.3d at 1114; see also Blanco, 861 F.2dat778; Fernandes, 618 F.Supp.2d at 69. "Similarly, the government usually satisfies its diligence obligation if it shows that it attempted extradition informally." Fernandes, 618 F.Supp.2d at 69. Thus, courts have "held that the government was sufficiently diligent for Sixth Amendment purposes" where it "informally contacted Swedish officials on numerous occasions" and was informed that extradition was not possible, id. (citing Walton, 814 F.2dat379), or where the government "'procur[ed] an agreement from Dominican officials to notify the [government] prior to [defendant's] release' from a Dominican jail, " id. (quoting United States v. Valencia-Quintana, 136 F.App'x 707, 709-10 (5th Cir. 2005)).

         However the government proceeds, the Court must evaluate "the reason ... for the delay" along a continuum. Barker, 407 U.S. at 531. At one end of the spectrum, "[a] deliberate attempt to delay the trial in order to hamper the defense" or to "gain some tactical advantage" "[must] be weighted heavily against the government, " while, at the other end, "a valid reason, such as a missing witness, should serve to justify appropriate delay." Id. at 531 &n.32. In the middle of the spectrum lie "more neutral reason[s] such as negligence or overcrowded courts." Id. at 531. And although "the ultimate responsibility for such circumstances [as negligence] . . . must rest with the government, " id. at 531, the Court must evaluate the specific facts in the context of the other Barker factors to assess how heavily to weight any such shortcoming.

         In analyzing the second Barker factor, the Court will proceed mostly, but not entirely, in chronological order. First, the Court will address the initial thirteen months subsequent to Demirtas's indictment that he spent in French custody pending the French prosecution. It will then skip ahead to the eighteen months after Demirtas was returned to the Netherlands. Next it will analyze the additional six months that Demirtas spent in French custody after his French conviction but before his release in the Netherlands. This chronological detour is useful because Demirtas's theory of why the government should have sought his extradition from France subsequent to his conviction turns, in part, on principles of prior jeopardy that are more clearly framed by assessing the government's subsequent decision not to seek his extradition from the Netherlands. Finally, the Court will address the sixth months immediately preceding Demirtas's removal from Germany to the United States, while he was in German custody.

         1. Detention Pending Prosecution in France: Dec. 8, 2011 to Jan. 8, 2013

         Shortly after Demirtas's indictment on December 8, 2011, the government promulgated an Interpol diffusion seeking custody of Demirtas, and it began preparing to request his extradition from France. See Dkt. 58-8 at 3; June Tr. at 6; Dkt. 79-8 at 2. Those efforts, however, were almost immediately rebuffed by the French official responsible for extradition matters involving the United States. On January 27, 2012, that official informed Roth, the responsible U.S. official, that France would not authorize or approve Demirtas's extradition "while [he was] incarcerated in France on French charges." Dkt. 79-8 at 8. Roth, moreover, directly inquired of her French counterpart whether the United States "could borrow [Demirtas]"-that is, "interrupt the French proceeding"-so that Demirtas could stand trial in the United States. Aug. 3-4 Tr. at 34. The French official responded that France would not entertain such a request. Id. He explained to Roth that, even absent France's promise to return Demirtas to the Netherlands upon conviction, the French would not interrupt their own proceedings to extradite Demirtas to the United States. Id. And, although that answer was "no real surprise, " id., Roth confirmed with the French magistrate assigned to Demirtas's case "that there was no way the United States would be able to get [custody] of [Demirtas] during the pendency of the French proceeding, " id. at 37.[12] In sum, according to Roth's testimony, the French "made it clear [to her] on multiple occasions that they would not honor a U.S. request for [Demirtas's] extradition . .. during the pendency of the French investigation[.] .. . There was no uncertainty whatsoever in the communications from the French to [her] on that." Id. at 56.

         In light of the foregoing, the government had no duty to make a formal request for extradition while the French prosecution was ongoing. Foreign "officials [had] made clear that they would not grant an extradition request." Blanco, 861 F.2d at 778 (citing Walton, 814 F.2d at 379). And, when "[d]ra wing aline between intentional delays that are permissible and those that are impermissible, . . . deferring prosecution because of an ongoing trial by another sovereign" falls on the permissible side of the line. Heshelman, 521 F.App'x at 509. The government has, accordingly, established that it had "a good[-]faith belief supported by substantial evidence that seeking extradition from" France while the French prosecution was ongoing would have been "futile." Corona-Verb era, 509 F.3d at 1114.

         Demirtas responds that this case is analogous to United States v. Pomeroy, 822 F.2d 718 (8th Cir. 1987), in which the Eighth Circuit held that the government was not reasonably diligent when it failed to request the defendant's extradition from Canada, even though Canadian criminal proceedings were underway at the time. See Dkt. 58 at 19-20 (citing Pomeroy, 822 F.2d at 719-21). Demirtas's case, however, is distinguishable from Pomeroy in at least one crucial respect: Although both the extradition treaty at issue in Pomeroy and the extradition treaty between the United States and France leave the matter of temporary surrender during the pendency of a prosecution to the discretion of the requested state, compare Pomeroy, 822 F.2d at 721 & n.7, with Dkt. 85-1 at 24-25 (Extradition Treaty with France, France-U.S., art. 16, Apr. 23, 1996); Dkt. 80-2 at 6 (Breham Decl.), [13] in Pomeroy, unlike in this case, "there [was] nothing in the record to indicate [that the Canadians] would have [exercised their discretion to deny extradition] had a proper request been made by the Government, " 822 F.2d at 721-22. In Pomeroy, the government had simply "held [Pomeroy's] extradition request 'in abeyance' pending completion of his Canadian sentence, " without ever inquiring of Canadian officials whether a surrender to the United States was possible during service of that sentence. Id. at 719.[14] In contrast, in this case, Roth asked the French on multiple occasions whether the United States could interrupt the French proceedings and bring Demirtas to the United States for prosecution, and those requests were unambiguously refused. See Aug. 3-4 Tr. at 56. Thus, even though the extradition treaty between the United States and France may indeed have permitted France to interrupt its prosecution to extradite Demirtas, there was substantial evidence that France would have exercised its discretion to deny such a request.

         The Supreme Court's decision in Smith v. Hooey, 393 U.S. 375 (1969), is distinguishable for the same reason. In that case, the Supreme Court reversed a denial of mandamus on a speedy trial question where "the State [of Texas] took no steps to obtain" custody of the petitioner, who was serving a federal sentence, id. at 375, notwithstanding the fact that the federal "Bureau of Prisons would doubtless have made the prisoner available" had "the State at any point sought to initiate [the] procedure" for bringing him before its courts, id. at 381 (internal quotation marks omitted). Here, in contrast, the government took appropriate steps to ascertain whether the French were amenable to surrender of Demirtas during the course of the French prosecution and learned that they were not.

         In short, the U.S. government did not fail to file an extradition request with a foreign government that was cooperative and willing to extradite. Cf. Heshelman, 521 F.App'x at 508. Where, as here, the relevant extradition treaty "left the extradition question to the discretion of appropriate [foreign] officials, " and informal communications with those officials "reveal[ed] [that they had] no interest in extraditing" the defendant, "a formal request for extradition" was not required to establish due diligence. Walton, 814 F.2d at 379; see also Valencia-Quintana, 136 F.App'x at 708-09 (noting defendant's concession that delay attributable to defendant's "arrest and incarceration in the Dominican Republic" was not even "arguably attributable to a lack of diligence on the part of the government" where "Dominican authorities denied the [government's] request to have [the defendant] released into United States custody[, even though] no formal extradition request was ever filed"). And, even if the government might have more aggressively demanded that the French interrupt the French case, reasonable diligence did not require them to do so.

         The government, moreover, did not simply abandon efforts to obtain custody of Demirtas after learning that the French would not extradite him while the French prosecution was ongoing. Instead, Roth asked whether France would or could provisionally arrest Demirtas as "insurance" so that he would not be released if the French case "[went] bust, " but she was informed that such a request would be denied. Dkt. 79-8 at 8; Aug. 3-4 Tr. at 34. The U.S. government also kept in periodic contact with the French regarding the status of the proceedings, and disseminated through Interpol a Red Notice seeking Demirtas's detention, see Dkt. 67-2 at 6; Dkt. 67-5 at 2; Dkt. 79-5 at 3; Aug. 3-4 Tr. at 51-54-further evidence that it was earnestly pursuing Demirtas, see United States v. Vasquez-Uribe, 426 F.App'x 131, 133-34, 138 (3d Cir. 2011) (finding government reasonably diligent where it deferred to joint ongoing investigation of defendant's activities in Colombia and, instead of pursuing extradition from Columbia, "took alternative measures to attempt to locate [the defendant] internationally and to ensure he would be detained if he were to travel within the United States"); United States v. Wangrow, 924 F.2d 1434, 1437 (8th Cir. 1991) (holding no speedy trial violation where government requested deportation of defendant to United States "as soon as [foreign charges were] resolved" and "remained in periodic contact with [foreign] officials regarding [defendant]").

         The Court, accordingly, finds that the government did not fail to exercise due diligence in pursuing Demirtas during the thirteen-month period in which he was ...


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