United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS United States District Judge
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.
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.
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
French then detained Demirtas pending an investigation by a
French magistrate specializing in counterterrorism
investigations.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).
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. 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.
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. Roth responded to DiLorenzo on January 20,
2012, with general information about the extradition process.
Dkt. 79-8 at 2.
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,
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."
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.
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.
same email, Roth added a note directed to Friedman.
Id. 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."
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.
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.
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. 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.
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.
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.
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. 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.
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.
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
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.
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:
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.
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
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).
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
Court initially held a hearing on the motion to dismiss on
June 1, 2016. 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.
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.
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. 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
motion to dismiss for violation of Demirtas's Sixth
Amendment right to a speedy trial, Dkt. 24, is, accordingly,
now ripe for resolution.
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.
"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
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.
Length of Delay
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
Reason for the Delay
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)).
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.
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
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.
Detention Pending Prosecution in France: Dec. 8, 2011 to
Jan. 8, 2013
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. 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.
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
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.),  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. 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.
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.
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.
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]").
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 ...