United States v. Demirtas

. 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.”

(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-Verbera,

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.2d at 778

; Fernandes,

. “Similarly, the government usually satisfies its diligence obligation if it shows

that it attempted extradition informally.” Fernandes,

. 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.2d at 379

), or where the government

17 “‘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.

18 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

12 The Court finds the fact that Roth made inquiries of the magistrate probative of whether the government proceeded diligently, notwithstanding the fact that the French magistrate was responsible only for the investigation of Demirtas and was independent of the Ministry of Justice—the Central Authority for France with authority over extradition matters. Aug. 3–4 Tr. at 37. The magistrate’s opinion as to the likelihood of extradition during the French proceedings confirmed the view already expressed by a French representative of the more relevant decisionmaking body, the BEPI within the Ministry of Justice. See Dkt. 79-8 at 8; supra n.4.

19 [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]rawing a line 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-Verbera,

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

13 As relevant here, the U.S.-French extradition treaty provides:

20 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

1. If the extradition request is granted in the case of a person who is being prosecuted or is serving a sentence in the Requested State, the Requested State may temporarily surrender the person sought to the Requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody in the Requesting State and shall be returned to the Requested State after the conclusion of the proceedings against that person, in accordance with conditions to be determined by mutual agreement of the Contracting States.

2. The Requested State may postpone the extradition proceedings against a person who is being prosecuted or who is serving a sentence in that State. The postponement may continue until the prosecution of the person sought has been concluded and any sentence has been served.

Dkt. 85-1 at 24–25 (Extradition Treaty with France, France-U.S., art. 16, Apr. 23, 1996) (emphasis added).

14 In Pomeroy, Canadian officials had apparently told the U.S. government that they would exercise their discretion to deny extradition pending a retrial of Pomeroy after his Canadian conviction was reversed on appeal.

822 F.2d at 719

. Although the Eighth Circuit did not expressly discuss that evidence, it appears that its holding was premised on the failure of the U.S. officials to seek extradition pending the appeal that precipitated the new trial. That is, while there appears to have been some evidence that the Canadians would have denied extradition during the course of the new trial—evidence not elaborated upon by the Eighth Circuit—there was no evidence that Canada would have denied extradition pending the appeal of Pomeroy’s original conviction.

21 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

22 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 incarcerated in France

while the French proceeding was ongoing.

23 2. Time in the Netherlands: July 17, 2013 to approximately Jan. 12, 2015

Skipping ahead to the period of time after Demirtas was released in the Netherlands, the

government has also established that, at that juncture, it had “a good[-]faith belief supported by

substantial evidence that seeking extradition from [the Netherlands] would be futile,” Corona-

Verbera, 509 F.3d at 1114—initially due to the pendency of a Dutch resentencing proceeding,

and then because prior jeopardy precluded Demirtas’s extradition from the Netherlands.

a. Pending Dutch Resentencing: July 17, 2013 to Oct. 8, 2013

Upon arrival in the Netherlands on July 17, 2013, Demirtas was released pending Dutch

proceedings to “convert” his French sentence to a Dutch one, a procedural resentencing that

generally shortens the sentence imposed. Dkt. 58-1 at 2; Aug. 3–4 Tr. at 136–37. Friedman,

who was the OIA official responsible for extraditions from the Netherlands, averred that the

United States could not have obtained custody of Demirtas while this resentencing procedure

was ongoing. Dkt. 71-1 at 11 (Friedman Decl. ¶ 19). Demirtas’s own expert witness on Dutch

law, Bart Stapert, agreed with this assessment. Aug. 3–4 Tr. at 419–20.

As Stapert explained, Article 9(1) of the Dutch Extradition Act barred extradition while

the Dutch resentencing proceeding was underway.

Under Article 9(1), extradition “will not

be permitted” if, “at the time of the decision for the request for extradition[,] a criminal

investigation in the Netherlands is underway.” Dkt. 78-14 at 10 (email providing English

translation of Art. 9(1)). And, according to Stapert, although the Dutch proceeding was a

procedural resentencing rather than a prosecution, it was nonetheless a criminal proceeding

covered by Article 9(1). Aug. 3–4 Tr. at 419–20. There is thus substantial evidence to support

the government’s good-faith belief that extradition would have been futile while the Dutch

24 resentencing was pending—that is, from Demirtas’s arrival in the Netherlands on July 17, 2013,

Dkt. 58-1 at 2, until the conclusion of the resentencing on October 8, 2013, Aug. 3–4 Tr. at 137.

b. Remaining Time in the Netherlands: Oct. 8, 2013 to about Jan. 12, 2015

The government also had a good-faith belief supported by substantial evidence that after

October 8, 2013, extradition from the Netherlands would have been futile because the Dutch law

of prior jeopardy barred Demirtas’s extradition. Article 5 of the extradition treaty between the

United States and the Netherlands provides that

[e]xtradition shall not be granted when: (a) The person sought is being proceeded against, has been prosecuted, or has been tried and convicted or acquitted by the Requested State for the offense for which extradition is requested; or (b) The person sought is otherwise immune from prosecution for the offense for which extradition is requested by reason of the law in the Requested State relating to prior jeopardy.

Dkt. 78-12 at 7. 15 Because subpart (a) applies only to Dutch convictions, it would not have

posed a bar to extradition from the Netherlands based solely on Demirtas’s French conviction.

See Aug. 3–4 Tr. at 119–20, 282–83. All agree, however, that subpart (b) applies to all offenses

for which prior jeopardy would attach as a matter of Dutch law, including offenses prosecuted in

foreign jurisdictions. See Aug. 3–4 Tr. at 119–20, 282–83, 372–74. And, as both Friedman and

Stapert testified, under Article 68(2) of the Dutch Criminal Code, Demirtas’s French conviction

qualified as a prosecution to which jeopardy would attach under appropriate circumstances and

at an appropriate time. Dkt. 71-1 at 5 n.2, 9 (Friedman Decl. ¶¶ 6, 15); Aug. 3–4 Tr. at 114,

281–82, 374–75. The same is true, moreover, under Article 9(1)(D)(1) of the Dutch Extradition

Law. Dkt. 73-2 at 2 (Stapert Decl.); Aug. 3–4 Tr. at 372–73.

15 Agreement Comprising the Instrument as Contemplated by Article 3(2) of the Agreement on Extradition Between the United States of America and the European Union as to the Application of the Extradition Treaty Between the United States of America and the Kingdom of the Netherlands Signed at The Hague on 24 June 1980, art. 5, Sept. 29, 2004.

25 As explained below, the parties disagree about when jeopardy attaches under these

rules—Friedman testified that jeopardy attaches upon conviction, while Stapert testified that

under Dutch domestic law jeopardy attaches with respect to a foreign conviction only after the

defendant has fully served his sentence. 16 For present purposes, however, this dispute is

immaterial. All agree that jeopardy attached no later than October 8, 2013, when the Dutch

court reduced Demirtas’s sentence to time served. Accordingly, with respect to the period of

time following October 8, 2013, when Demirtas remained in the Netherlands, prior jeopardy

would have precluded his extradition to the United States if the French and U.S. charges were

sufficiently similar to trigger Dutch principles of prior jeopardy.

The question, then, is whether the government had a good-faith belief supported by

substantial evidence that, under Dutch law, the French and U.S. cases were indeed sufficiently

similar to preclude Demirtas’s extradition. The Court finds that it did. Between Demirtas’s

release in the Netherlands on July 17, 2013 and early October 2013, Friedman and her Dutch

counterpart corresponded “dozens of times” about whether Demirtas’s extradition from the

Netherlands would be barred by prior jeopardy. Aug. 3–4 Tr. at 136, 138; Dkt. 67-1 at 16–43;

Dkt. 71-1 at 7 (Friedman Decl. ¶ 11). Then, on October 3, 2013, Friedman’s Dutch counterpart

advised her that “the chances of extradition appear[ed] slim” because of the “considerable”

“overlap with the French conviction” and the fact that “the time frame [of the offense conduct] is

exactly the same.” Dkt. 67-1 at 44. He explained that even though the U.S. firearms charge

appeared different, it was “still strongly connected to the other [French] charges.”

Under the

16 Compare Aug. 3–4 Tr. at 114–15 (Friedman’s testimony that jeopardy attached to French conviction when that conviction became final on January 8, 2013), with Aug. 3–4 Tr. at 411 (Stapert’s testimony that jeopardy attached at the conclusion of the Dutch resentencing proceeding on October 8, 2013, when service of the French sentence was complete).

26 circumstances, the Dutch official opined that he “strongly doubt[ed] the Dutch court w[ould]

agree with an extradition based on these facts.”

Based on this opinion from a responsible

Dutch official and her own experience, Friedman believed that an extradition request would be

futile, and she so advised U.S. prosecutors. Dkt. 71-1 at 8 (Friedman Decl. ¶ 14); see also Dkt.

79-8 at 174. 17

The Court finds that the opinion of Friedman’s Dutch contact was indeed important and

reliable evidence of whether an extradition request would be futile. The Dutch official in

question was a legal advisor to the Dutch Minister of Security and Justice, as well as the deputy

director of the Dutch version of OIA. Aug. 3–4 Tr. at 105. He was responsible for advising the

Minister of Security and Justice on the legal issues surrounding extraditions, particularly in

complex cases, and had worked on Dutch extradition matters for at least fifteen years.

104–05, 244; Dkt. 71-1 at 3 (Friedman Decl. ¶ 4). Indeed, Stapert, the defense’s Dutch-law

expert, personally knew Friedman’s Dutch counterpart and confirmed that he was “absolutely” a

competent expert on Dutch extradition law. Aug. 3–4 Tr. at 391, 428.

17 Friedman requested a more formal letter memorializing the Dutch official’s assessment of the likelihood of extradition. In response, the Dutch Ministry of Justice provided a letter, dated March 4, 2014, stating:

These charges do not appear to be eligible for extradition, mainly given the French conviction with which there is a considerable overlap. The time frame in which the offences took place is also exactly the same. It is therefore likely that the Dutch court will not allow extradition based on these facts due to double jeopardy.

Dkt. 67-1 at 53. It was the earlier October 2013 opinion of Friedman’s Dutch contact that Friedman relied upon, however, in forming her belief that a formal extradition request would be futile and in calling off efforts to pursue such a request. Dkt. 71-1 at 8 (Friedman Decl. ¶ 14); see also Dkt. 79-8 at 174. The Court’s discussion of whether the government had a good-faith belief supported by substantial evidence that extradition would be futile accordingly focuses on the Dutch official’s October 2013 assessment. 27 When Friedman learned that this Dutch official had concluded that chances were “slim”

that Demirtas was subject to extradition, she was not merely receiving a prediction from an

expert on Dutch extradition matters as to how a Dutch court might rule on a formal extradition

request. She was also receiving guidance as to whether such a request was likely to be submitted

to the Dutch court and approved by the Minister of Security and Justice. In the Netherlands, the

Ministry of Security and Justice is responsible for filing extradition requests in Dutch court on

behalf of the United States, but it is not required to do so if it believes that the request fails to

comply with the Netherland’s legal obligations. Id. at 441. And, even if a Dutch court grants

extradition, the Minister of Security and Justice—to whom Friedman’s Dutch contact served as a

legal adviser—retains final authority over whether to grant extradition. Id. at 388–89. Thus, the

Dutch official’s opinion was also strong evidence that the Dutch Ministry of Security and Justice

and/or the Dutch Minister himself would deny an extradition request.

Friedman’s counterpart obtained information from the Dutch prosecutors and was aware

of the offenses charged by France and the United States, as well as the fact that both sets of

charges pertained to Demirtas’s alleged association with the IMU between 2006 and 2008. See

Dkt. 79-8 at 108 (Dutch contact’s summary of information that he received from the Dutch

prosecutor assigned to the resentencing); Dkt. 58-4 at 2–6 (Friedman email attaching three-page

summary of U.S. charges). As explained below, this was precisely the kind of information

relevant to an assessment of the case under Dutch principles of prior jeopardy. And, importantly,

Friedman’s Dutch counterpart neither asked her for further information nor qualified his

assessment as based on incomplete information. Although Demirtas suggests that the Dutch

official’s quick response to Friedman’s request for his opinion—given within twenty-four

28 hours—indicates a cursory answer, Aug. 3–4 Tr. at 302, it is more likely that the answer was

given quickly simply because it was straightforward.

Although Friedman’s Dutch contact spoke in terms of probabilities, telling her that the

“chances of extradition appear[ed] slim,” Dkt. 67-1 at 44, Friedman reasonably understood him

to be telling her “that a request for the extradition of the defendant in this case would be denied.”

Dkt. 71-1 at 8 (Friedman Decl. ¶ 13). Friedman testified that even though the email from the

Dutch official said only that the chance of extradition was “slim,” she was confident that her

counterpart “meant we were not going to get him.” Aug. 3–4 Tr. at 144–45. Based on her over

fifteen-year professional relationship with this official—a relationship that “involve[d] almost

daily written and/or telephone discussions related to requests for legal assistance and

extraditions,” Dkt. 71-1 at 3, 8 (Friedman Decl. ¶¶ 4, 13)—Friedman understood him to be using

“diplomatic speak” that was a “polite” way of saying that extradition was “not going to happen,”

Aug. 3–4 Tr. at 145. And because her “Dutch contact [was] a good law enforcement partner of

the United States,” Friedman was “confident that if there had been any realistic chance of

successfully extraditing the defendant, even if it had been on only some of the charges, [he]

would have so advised [her].” Dkt. 71-1 at 8 (Friedman Decl. ¶ 13). The Court finds no reason

to doubt that Friedman in good faith (and for good reason) believed that her Dutch contact

intended to convey to her that an extradition request would be refused. Moreover, although

admittedly after-the-fact and generated in the context of the present litigation, Friedman’s

counterpart confirmed in a July 2016 email that she correctly understood him to have opined that

“a request for extradition would not [have stood] a chance” and that she was “sufficiently

experienced to get [that] message.” Dkt. 78-14 at 1. He added that he “wanted to discourage”

Friedman from filing a request for extradition, because his office “probably” would not have

29 even been willing to go to “court with” an extradition request in light of the “double jeopardy

obstacles.” Id.

Importantly, in forming her assessment that a formal extradition request would be futile,

Friedman did not rely on the Dutch official’s statement that “the chances are slim” in a vacuum;

the Dutch official’s assessment accorded with Friedman’s own experience. Friedman has served

as the OIA official responsible for legal assistance and extradition requests involving the

Netherlands for twenty-two years and has worked on approximately 500 extraditions involving

the Netherlands. Dkt. 71-1 at 2, 3 (Friedman Decl. ¶¶ 3, 5); Aug. 3–4 Tr. at 102, 106. In that

capacity, she has “become very familiar with the [t]reaties and Dutch policy regarding”

extradition of Dutch nationals and the implications of prior jeopardy law, Dkt. 71-1 at 3–6

(Friedman Decl. ¶¶ 5, 7, 9), and was aware of a number of cases in which prior jeopardy

precluded the extradition of fugitives, id.

As Friedman testified—and as Stapert confirmed—Dutch prior jeopardy law is “much

more expansive” than U.S. double jeopardy doctrine. Aug. 3–4 Tr. 107, 407 (Stapert’s testimony

that Dutch prior jeopardy is “much broader” than U.S. double jeopardy). Unlike U.S. double

jeopardy doctrine, which examines whether two offenses have the same legal elements and

which does not bar successive prosecutions by separate sovereigns, see Blockburger v. United

States,

284 U.S. 299

(1932); Heath v. Alabama,

474 U.S. 82, 88

(1985), Dutch prior jeopardy

law considers the degree to which the underlying conduct at issue is the same and, if it is

sufficiently similar, bars a successive prosecution even by a separate sovereign, Aug. 3–4 Tr. at

108–09, 407–08; Dkt. 71-1 at 9 (Friedman Decl. ¶ 15). Friedman testified that, accordingly,

“[t]he fact that [the U.S. charges] were focusing on harm to U.S. citizens . . . was not a relevant”

means of distinguishing the U.S. case from the French conviction, because the conduct charged

30 in France and the United States “was all part of the same pattern and the same criminal activity.”

Aug. 3–4 at Tr. 143–44. Thus, when Friedman’s Dutch counterpart opined that the chances of

extraditing Demirtas “appear[ed] slim,” Dkt. 67-1, at 44, his opinion accorded with her own

“experience that [where] the totality of the facts are similar and occur during the same time

frame,” Article 5 of the U.S.-Dutch extradition treaty precludes extradition, Dkt. 71-1 at 9

(Friedman Decl. ¶ 15).

Yet, even assuming that the Dutch official’s opinion was indeed merely a statement that

it was highly probable, rather than certain, that extradition from the Netherlands would be

denied, the relevant legal question is whether the U.S. government had a good-faith belief,

supported by substantial evidence, that extradition would be futile—and not whether extradition

was in fact impossible. See, e.g., Corona-Verbera,

509 F.3d at 1115

(holding government

established futility where there was “[s]ubstantial evidence . . . that extradition from Mexico on

drug related charges prior to 2002 was extremely rare” (emphasis added)); Bagga,

782 F.2d at 1543

(holding that government established futility where there was “great doubt” that the offense

was “extraditable”). Such certainty could be obtained only by formally requesting that the

foreign law enforcement partners of the United States pursue extradition litigation, even where

those officials have concluded, based on their experience and expertise, that the litigation stands

little chance of success. Such a requirement cannot be squared with settled law holding that

informal communications generally suffice to establish the government’s reasonable diligence,

see, e.g., Walton,

814 F.2d at 379

; Fernandes,

, and, indeed, could prove

counterproductive by undermining the working relationships necessary to foster international

cooperation and by imprudently alerting criminal defendants to otherwise sealed proceedings.

Here, the Court finds that Friedman’s informal communications with her Dutch counterpart and

31 her own experience constituted substantial evidence supporting her belief, held in good faith, that

a formal request for extradition would be denied.

The Court rejects Demirtas’s characterization of the government’s failure to seek his

extradition from the Netherlands as “neglect or a purposeful attempt to gain a tactical

advantage.” Dkt. 24 at 8; see also Dkt. 58 at 7 (alleging “bad faith and a lack of diligence”).

According to Demirtas, by failing formally to request extradition, “the government sought to

avoid its obligations under” the U.S.-Dutch extradition treaty with respect to prior jeopardy and

to deprive Demirtas of his right, as a Dutch citizen, to seek asylum in the Netherlands. See Dkt.

58 at 13, 21. He also suggests that the government did not seek extradition from the Netherlands

because the U.S.-Dutch extradition treaty would have permitted Demirtas to return to the

Netherlands following a U.S. conviction, where his sentence would be shortened. Aug. 3–4 Tr.

at 79, 308–09; see also Dkt. 79-8 at 12. According to this theory, by waiting to see if Demirtas

could be apprehended by the United States in some other manner, the government hoped to avoid

these conditions applicable to an extradition from the Netherlands.

It is true that where the government fails to seek extradition for the purpose of hampering

the defense, the delay “should be weighted heavily against the government.” Barker,

407 U.S. at 531

. At least one court, moreover, has applied this rationale where the government “deliberately

chose not to extradite sooner because it wanted to ensure that [defendant] could be tried” on all

of the charged counts. Heshelman, 521 F. App’x at 506–09. Here, however, the record

substantiates that the government earnestly desired to extradite Demirtas from the Netherlands.

Friedman spoke with her Dutch counterpart somewhere between twenty and thirty times between

July 17, 2013, and early October 2013 to discuss “potential alternatives” for proceeding against

Demirtas. Aug. 3–4 Tr. at 317. She asked her Dutch counterpart, for example, whether “any/all

32 of the charges would be eligible for extradition,” Dkt. 58-4 at 2 (emphasis added), and whether it

was possible to “cull out the firearms charge” to avoid the prior jeopardy problem, Aug. 3–4 Tr.

at 317. But her counterpart responded that “the gun charge was . . . part of the entire pattern for

the same timeframe.” Id. at 139. And, although Friedman mentioned in passing to other U.S.

officials that extradition from the Netherlands would ultimately result in a reduction of any U.S.

sentence imposed, she testified that this was “not a consideration” and was “absolutely separate”

from the analysis of whether he could be extradited. Id. at 319–20. The Court credits that

testimony. In short, there is no credible evidence that the government deliberately delayed

seeking extradition for any tactical—or any other—purpose.

The Court, accordingly, finds that the government held a good-faith belief that a formal

extradition request to the Netherlands would be denied. It also finds that that belief was backed

by substantial evidence—the opinion of a senior Dutch official with both expertise and

significant influence over the disposition of extradition decisions, and Friedman’s own opinion,

based on her twenty-two years of experience working on Dutch extradition matters. The

government, moreover, diligently pursued other alternatives to obtain custody of Demirtas after

it concluded that a formal extradition from the Netherlands would be futile. It confirmed that the

June 2012 Red Notice remained in place in case Demirtas traveled to another country, and it

sought the assistance of Dutch law enforcement in tracking his movements. Aug. 3–4 Tr. at

148–49, 153–54; Dkt. 79-8 at 206. The latter request was refused, Aug. 3–4 Tr. at 153–54, but

the former measure ultimately led to Demirtas’s arrest in Germany in January 2015 and his

subsequent extradition to the United States, Dkt. 79-8 at 228.

33 3. Possible Chance to Extradite from France: Jan. 8, 2013 to July 17, 2013

The Court now turns back to the period of time following Demirtas’s French conviction

and preceding his return to the Netherlands. As the Court explained above, the government had

a good-faith belief, supported by substantial evidence, that extradition of Demirtas from France

would have been futile while his French prosecution was pending. The question remains,

however, whether the government failed to exercise due diligence in pursuing extradition during

the window in time between Demirtas’s French conviction on January 8, 2013, Dkt. 78-6, and

his return to the Netherlands on July 17, 2013, Dkt. 58-1 at 2.

The parties agree that an extradition request must be made to the country where the

person sought is located and that, accordingly, while Demirtas remained in French custody, it

was not possible to file an extradition request directly with the Dutch government. Dkt. 79-8 at

34; Aug. 3–4 Tr. at 128, 400–01. It is also undisputed that when the Netherlands surrendered

Demirtas to the French for prosecution pursuant to a European Arrest Warrant, it surrendered

him on the condition that he could serve any sentence imposed in the Netherlands. Dkt. 78-13 at

4. The order of the Dutch court authorizing Demirtas’s surrender to the French government

explained that “surrender may only be allowed if the issuing judicial authority provides the

guarantee” of return required under Dutch law. Id. It also stated that the French government

transmitted its “guarantee in accordance with which, if Irfan Demirtas were to be sentenced to a

definitive prison sentence for the acts for his extradition . . . , he may serve his sentence in the

Netherlands . . . .” Id.

According to Demirtas, although France had promised to return him to the Netherlands

following any French conviction, the U.S. government had the legal option to pursue his

“onward extradition” (also known as a “subextradition”) from France to the United States. See

34 Dkt. 58 at 8–9; Dkt. 80-2. The government responds that France had categorically refused to

grant Demirtas’s extradition and that, in any event, extradition from France would have been

futile for the same reason that it was futile from the Netherlands—Dutch prior jeopardy barred a

successive prosecution by the United States. See Aug. 3–4 Tr. at 141. As explained below, the

Court concludes that Demirtas is correct that onward extradition was theoretically available—or

at least, that the government has not met its burden to establish legal futility. See Fernandes,

. But, at the same time, the Court finds that the government was not

substantially at fault for failing to pursue this possibility, and, in particular, for failing to

recognize the unusual urgency of pressing the French government, which had indicated that it

could not extradite Demirtas, to reconsider and to seek Dutch consent for onward extradition.

a. Legal Theory of Demirtas’s Extraditability from France

Demirtas argues that the government had a legally viable path to obtain his extradition

from France, which it failed to raise with the French. Under Demirtas’s theory, the U.S.

government could have obtained custody of him from France at the conclusion of the French

prosecution by utilizing several different legal instruments and concepts in tandem: The U.S.

government could have obviated timing issues by pursuing a deferred extradition pursuant to the

U.S.-French extradition treaty, and it could have overcome the French promise to return

Demirtas to the Netherlands by asking the French to seek Dutch consent to an onward extradition

and by guaranteeing to the Dutch that Demirtas would serve both his French sentence and any

U.S. sentence in the Netherlands.

As explained by Joseph Breham, Demirtas’s expert on French extradition law, even

assuming that the French were unwilling to interrupt their own prosecution to extradite Demirtas

to the United States, under Article 16 of the U.S.-French extradition treaty, France had the option

35 to commence extradition proceedings but to defer the actual extradition of Demirtas to the

United States until the conclusion of its prosecution. Dkt. 80-2 at 6 (Breham Decl.); see also

Dkt. 85-1 at 24 (text of Article 16). That is, the government “was not obligated to wait for the

end of the prosecution in France to make an official request to France for the extradition of . . .

Demirtas.”

618 F. Supp. 2d at 70, 72

Making such a request while a prosecution remains underway “allows the

requesting state to gain time and [to] obtain custody sooner” than waiting to commence

extradition proceedings until the conclusion of the prosecution. Dkt. 80-2 at 6 (Breham Decl.).

Thus, under Demirtas’s theory, the government could have filed a formal extradition request

either during the French prosecution or during the six months in which Demirtas remained in

France following his French conviction; either way, the request would not have interrupted the

French prosecution.

Breham and the defense’s expert on Dutch extraditions, Bart Stapert, further explained

that the French promise to return Demirtas to the Netherlands to serve any sentence imposed

would not have prevented Demirtas’s removal to the United States at the conclusion of the

French prosecution. That promise was made pursuant to the Council Framework Decision of

June 13, 2002 on the European Arrest Warrant (“European Framework”) and pursuant to Dutch

domestic law. Dkt. 78-13 at 4; Aug. 3–4 Tr. at 125, 262, 367, 370. In particular, Article 28(4) of

the European Framework provides that “a person who has been surrendered pursuant to a

European arrest warrant shall not be extradited to a third State without the consent of the

competent authority of the Member State which surrendered the person.” Dkt. 80-3 at 10.

Article 28(4) further explains that “[s]uch consent shall be given in accordance with the

Conventions by which that Member State is bound, as well as with its domestic law.” Dkt. 80-3

at 10. The government, for the most part, does not dispute that deferred extradition and onward

36 extraditions are, as a general matter, legal options in appropriate circumstances. Instead, it

contends that it diligently pursued various alternatives for obtaining custody of Demirtas from

the French; that the French were emphatic in their position that they would not extradite

Demirtas; and that, in light of this clear response from the French, the U.S. government was not

required to file a formal extradition request with France.

According to Stapert, obtaining Dutch consent to an onward extradition from France

pursuant to Article 28(4) would have required that the French government make a request for

onward extradition to the Dutch Ministry of Security and Justice. Dkt. 73-2 at 2; Aug. 3–4 at Tr.

413. As he explained, the Dutch would then have considered whether onward extradition was

consistent with Dutch treaties and domestic law, including prior jeopardy law, Dkt. 73-2 at 2;

Aug. 3–4 Tr. at 371, and would have decided whether to exercise their discretion to consent, see

Aug. 3–4 Tr. at 388, 413; see also id. at 401. Finally, Stapert explained that to grant an onward

extradition of Demirtas to the United States, France would have to “address the treaty transfer

return it had guaranteed to the Dutch” by “negotiat[ing] additional diplomatic assurances or

guarantees”—by, for example, obtaining an assurance that Demirtas could return to the

Netherlands to serve both the French sentence and any U.S. sentence imposed. Dkt. 73-2 at 2;

III.B.2.

Putting aside the issue of prior jeopardy, it was not unreasonable for the government to

conclude that it should wait until Demirtas was returned to the Netherlands to seek extradition.

France had declined the government’s request for a provisional arrest and had repeatedly

informed Roth that it could not grant an extradition request in light of its guarantee to return

Demirtas to the Netherlands. Dkt. 58-8 at 2; Dkt. 79-8 at 7–8. Although Roth might have more

effectively pushed back on this conclusion by raising the prospect of deferred extradition and the

possibility that the French might agree to seek Dutch consent, any significant advantage to doing

so was far from apparent at the time, and it is far from clear that “that any such effort would have

succeeded.” Tchibassa,

452 F.3d at 925

. To do so would have, in effect, required that the

government clear two sets of hurdles to extradition: those arising under the U.S.-French

extradition treaty and French law, and those arising under the U.S.-Dutch extradition treaty and

Dutch law. And, as Stapert acknowledged, Dutch officials would have retained discretion to

deny consent to an onward extradition. See Aug. 3–4 Tr. at 388, 413; see also id. at 401. In the

ordinary course, there is little doubt that it would have been reasonable for the government to

wait to seek extradition until Demirtas was returned to the Netherlands.

48 Here, however, one factor counseled in favor of pressing harder for Demirtas’s

extradition while he remained in France: As the Court explained above, once Demirtas returned

to the Netherlands, his extradition became futile. See supra pp. 24–33. But, while it is tempting

to read the record with the benefit of hindsight and with the benefit of expert testimony, the

requirement that the government use “reasonable diligence” in pursuing a defendant located

overseas does not mean that the government’s efforts must be flawless. Doggett,

505 U.S. at 656

. Friedman’s failure to anticipate the nuances of Dutch prior jeopardy law—that is, that there

was a brief window in time when jeopardy did not preclude Dutch approval of Demirtas’s

extradition—was not unreasonable. Friedman had handled “all legal assistance and extradition

requests to and from the Netherlands” for over twenty years, Dkt. 71-1 at 2 (Friedman Decl. ¶ 3),

yet was unaware of the peculiar distinction in Dutch law between when jeopardy attaches for

foreign and domestic convictions. Notably, when Friedman and her knowledgeable Dutch

counterpart engaged in discussions of prior jeopardy law upon Demirtas’s return to the

Netherlands, the Dutch counterpart never suggested that the United States might have missed its

window by having waited until Demirtas was returned to the Netherlands, even though

Demirtas’s sentence was not fully served for almost three months after Demirtas’s return. Dkt.

67-1 at 44. And even Stapert conceded that the distinction between Dutch and foreign

convictions was an “odd” one grounded in an outmoded rationale. Aug. 3–4 Tr. at 22.

Overall, the record reflects that U.S. officials actively and in good faith sought to obtain

custody of Demirtas at the earliest reasonable time, but that, with the benefit of hindsight, it

would have been preferable to have at least further explored with the French whether they would

have been willing to institute a deferred extradition proceeding and to seek Dutch consent to an

onward extradition prior to Demirtas’s return to the Netherlands. The Court, accordingly,

49 concludes that the government is “more to blame” than Demirtas—who bears no blame at all—

for the failure to obtain his extradition from France. Doggett,

505 U.S. at 651

. But, on the

spectrum ranging from “deliberate” delay to “valid reason[s]” for delay, Barker,

407 U.S. at 531

the government’s conduct is best viewed as an understandable failure to raise an alternative legal

strategy with the French officials in a complex case involving a multi-country extradition process

and an arcane issue of Dutch prior jeopardy law, cf. Bagga,

782 F.2d at 1544

(finding that the

government’s conduct was “clearly no more than mere negligence” and insufficient to “tip the

scale in favor of the defendant”); see also United States v. Kresler,

392 F. App’x 765, 771

(11th

Cir. 2010) (quoting Bagga,

782 F.2d at 1544

Finally, although the government took no actions to seek custody of Demirtas during the

six-month period following his conviction in France and preceding his return to the Netherlands,

see Aug. 3–4 Tr. at 89, 296, the Court does not fault the government for this period of inactivity,

except to the extent that, as explained above, it failed earlier to recognize that this was a key

moment when an extradition might possibly have been carried out. The government’s pursuit of

Demirtas lay dormant between January 25, 2013—when it learned that the French prosecution

had concluded, Dkt. 67-2 at 7—and July 17, 2013—when it learned that Demirtas had been

released in the Netherlands, Dkt. 71-1 at 7 (Friedman Decl. ¶ 10). But, the government

reasonably believed that it would receive notice prior to Demirtas’s release from foreign custody.

See Valencia-Quintana, 136 F. App’x at 709–10. Roth’s French counterpart had told her that

there would be “a [ten-]day delay before release from the date of any court decision that would

result in [Demirtas’s] freedom,” and that the U.S. government would accordingly have time to

serve a provisional arrest request prior to Demirtas’s release. Dkt. 79-8 at 8; see also Aug. 3–4

50 Tr. at 41–42, 90–91. The government is not at fault where, as here, foreign authorities “fail[ed]

to provide the promised notice.” Valencia-Quintana, 136 F. App’x at 709–10. 25

4. German Arrest to Initial Appearance: Jan. 12, 2015 to July 20, 2015

This, then, leaves the period of time between Demirtas’s arrest in Germany on January

12, 2015, Dkt. 24 at 4; Dkt. 79-8 at 228, and his initial appearance before this Court on July 20,

2015. The Court concludes that the government is not to blame for this approximately six-month

delay in bringing Demirtas to trial.

The government proceeded with due diligence in seeking Demirtas’s extradition from

Germany. Just two days after Demirtas was arrested in the Dusseldorf airport pursuant to the

Red Notice, the government submitted a request for his provisional arrest and informed German

officials that it intended to file a formal request for extradition. Dkt. 79-8 at 228; Dkt. 78-8 at

250–51; Aug. 3–4 Tr. at 172. The formal extradition packet was then delivered to the German

Foreign Office on March 11, 2015, within the time permitted under the U.S.-German extradition

treaty. Dkt. 78-8 at 160; Aug. 3–4 Tr. at 172, 175. 26 Although Demirtas suggests that the

government could have prepared and submitted the extradition package with greater haste,

reasonable diligence did not require it to submit the formal request in advance of the legal

deadline.

25 The government was also surprised to learn that its Red Notice had failed to prevent Demirtas’s release, filing a “formal inquiry with Interpol on why France and the Netherlands missed or ignored the Red Notice.” Dkt. 78-8 at 49. Roth testified, however, that the French will hold a defendant on a Red Notice for only four hours, even though they will honor a request for a provisional arrest by holding a defendant in detention for sixty days pending the submission of formal extradition documents. Aug. 3–4 Tr. at 90.

26 The United States requested and received a twenty-day extension to submit the formal extradition package, as permitted under the terms of the treaty. The OIA official responsible for extraditions involving Germany testified that it was “typical[]” for both sides to seek this extension. Aug. 3–4 Tr. at 172.

51 Nor did the government cause any unjustified delay of Demirtas’s removal to the United

States once Germany granted extradition. The German court of first review approved Demirtas’s

extradition in early June 2015, and the last of Demirtas’s three appeals was denied on or about

July 2, 2015, clearing the way for Demirtas’s removal to the United States. See Aug. 3–4 Tr. at

177–78, 188–89; Dkt. 78-8 at 104–05. Six days later, the German prosecutor general’s office

accepted the government’s proposed travel itinerary, which listed a departure date of July 15,

2015. Dkt. 78-8 at 101. There was then a two-day postponement of the itinerary because the

plane to be used for Demirtas’s transport was “unexpectedly down for maintenance,” Dkt. 78-8

at 99—a valid reason for this brief delay. The OIA official responsible for coordinating the

logistics of extraditions from Germany testified that, overall, Demirtas’s extradition was “really

on the short end [of the range of times it takes to] organiz[e] these removals.” Aug. 3–4 Tr. at

193–94. The Court concludes that Demirtas’s pending appeals and the need to finalize

arrangements for his transportation to the United States provide ample justification for the short

delay between the German court’s initial approval of extradition and Demirtas’s actual removal

to the United States. See Loud Hawk,

474 U.S. at 316

The evidence thus shows that the approximately six-month delay between Demirtas’s

arrest in Germany and his initial appearance before this Court was within “the typical timeframe

for contested extraditions” from Germany, Aug. 3–4 Tr. at 179, and that the government

exercised reasonable diligence in pursuing Demirtas during this period.

***

In sum, the Court concludes that the government had a good-faith belief, supported by

substantial evidence, that Demirtas’s extradition from France would have been futile while his

French prosecution remained underway and that his extradition from the Netherlands would have

52 been futile due to pending proceedings and to prior jeopardy. The Court also finds that, although

the government might have done more to push for extradition of Demirtas within the six-month

window between his French conviction and his return to the Netherlands, its failure to recognize

the importance of seeking a deferred, onward extradition from France is understandable in light

of the complex mix of international and foreign legal rules at issue. Any misstep during this

period of time did not constitute a lack of reasonable diligence in pursuing Demirtas’s arrest.

C. Defendant’s Assertion of Speedy Trial Right

The third Barker factor—the defendant’s assertion of the speedy trial right—is often

intertwined with the second factor—who is “more to blame for the delay.” Doggett,

505 U.S. at 651

. If a defendant is aware of the charges and becomes a fugitive, concealing his whereabouts

from the government, he is generally charged with fault for the delay, as well as with failure to

assert his right to a speedy trial. See Fernandes,

. In contrast, a

defendant cannot be blamed for a failure to assert his right to a speedy trial until he “know[s] of

the charges” against him. Doggett, 505 U.S. at 653–54.

The government makes three arguments that Demirtas failed timely to assert his speedy

trial right such that the third factor weighs against him. First, it contends that Demirtas “was

clearly aware that the United States was looking at him for engaging in terrorist-related activity”

as early as September 24, 2009, when the FBI and DiLorenzo interviewed him while he was in

French custody. Dkt. 44 at 20. According to the government, notwithstanding this purported

knowledge, Demirtas failed to assert his right to a speedy trial until 2015.

618 F. Supp. 2d at 68, 74

This argument is without merit. During the 2009 interview, DiLorenzo informed

Demirtas that he had not been charged with a crime in the United States and that DiLorenzo

could not say whether Demirtas was a suspect. Dkt. 58-7 at 2. Indeed, the grand jury did not

53 return the indictment against Demirtas for well over two years after the Paris interview, and the

indictment remained under seal until 2015. Dkt. 3; July 20, 2015 Min. Order. There is no

evidence that Demirtas was aware of pending U.S. charges against him prior to his arrest in

Germany on January 12, 2015. Cf. Tchibassa,

452 F.3d at 926

(holding defendant responsible

for failing to assert speedy trial right because “he was aware that charges were pending against

him”). Demirtas thus cannot be faulted for failing to assert his speedy trial right before that time.

See Doggett, 505 U.S. at 653–54.

Second, the government emphasizes that Demirtas contested his extradition from

Germany, instead of seeking to be brought promptly to the United States to face the charges.

Dkt. 44 at 20. On this record, there is no sound basis for a finding that Demirtas wasted time “by

filing indisputably frivolous” appeals,27 Loud Hawk,

474 U.S. at 314

, and there is no basis to

conclude that Demirtas’s efforts to fight extradition in early 2015 means that any prior delay by

the government in pursuing him was thereby vitiated. Rather, the delay occasioned by

Demirtas’s 2015 challenge to his extradition from Germany should simply be “excluded from

[the] calculation” of overall delay in bringing Demirtas to trial in the United States. Heshelman,

521 F. App’x at 505

n.3; see also United States v. Manning,

56 F.3d 1188, 1195

(9th Cir. 1995)

(“Manning cannot avoid a speedy trial by forcing the government to run the gauntlet of obtaining

formal extradition and then complain about the delay that he has caused by refusing to return

voluntarily to the United States.”). The government continues to bear the burden, however, of

27 In an email included in the record, the OIA official responsible for extraditions from Germany recounts that an official with the German Federal Office of Justice told him that one of the issues raised by Demirtas in one of the three rounds of appeals “appear[ed] . . . to be completely meritless.” Dkt. 78-8 at 107. However, the same OIA official testified that he was otherwise unaware of what issues Demirtas raised during the various appeals. Aug. 3–4 Tr. at 177, 194.

54 justifying the delay between Demirtas’s indictment on December 8, 2011 and his arrest in

Germany on January 12, 2015.

Third, the government faults Demirtas for failing to assert his right to a speedy trial until

September 9, 2015—“nearly nine months after his arrest.” Dkt. 44 at 20. But the government

misapprehends the facts. Demirtas requested a speedy trial at his initial appearance before this

Court on July 20, 2015. Dkt. 35 at 7–8. At the subsequent detention hearing held on July 23,

2015, prior defense counsel agreed to waive time under the Speedy Trial Act (“STA”) until the

next hearing on September 9, 2015, stating that the “government is going to use this time to

produce discovery and inform us more about the case.” Dkt. 35 at 8. From September 9, 2015,

onward, Demirtas repeatedly and consistently objected to any delay and refused to waive time

under the STA. Dkt. 37 at 11; Dkt. 38 at 20; Dkt. 39 at 23; Dkt. 40 at 12; Dkt. 41 at 12–13.

The Court finds that Demirtas’s single waiver of time under the STA—from July 23,

2009 to September 9, 2015—is immaterial to his constitutional speedy trial claim. Rather, the

Court is required to “weigh the frequency and force of the objections” to delay. Barker,

407 U.S. at 529

; see also

id. at 528

(rejecting “demand-waiver” approach under which “fail[ure] to

demand a speedy trial forever waives [the] right”). Here, Demirtas requested a speedy trial at his

first appearance before this Court, and, with only one exception, reasserted that right at every

opportunity. The Court, moreover, “attach[es] a different weight to a situation in which the

defendant knowingly fails to object from a situation in which his attorney acquiesces.”

Id. at 529

. Demirtas consented to the brief STA waiver on advice of counsel, presumably without

personal knowledge of the U.S. legal system, and for the limited purposes of allowing the

government to complete discovery and enabling defense counsel to review that discovery. See

Dkt. 24 at 8; see also Barker, 407 U.S. at 527–28 (recognizing that tension often arises when

55 defense counsel needs time to prepare, notwithstanding the defendant’s request for a speedy

trial). The Court, accordingly, declines to fault Demirtas for his limited waiver of time under the

STA.

D. Prejudice

Under the fourth Barker factor—prejudice—the Court considers three kinds of prejudice

that result from “unreasonable delay between formal accusation and trial”: “‘oppressive pretrial

incarceration,’ ‘anxiety and concern of the accused,’ and ‘the possibility that the [accused’s]

defense will be impaired’ by dimming memories and loss of exculpatory evidence.” Doggett,

505 U.S. at 654

(alteration in original) (quoting Barker,

407 U.S. at 532

). The former two forms

of prejudice are largely irrelevant in this case, as there is no evidence that Demirtas was aware of

the charges (and therefore anxious or concerned about them) prior to his arrest in Germany, and

the time he spent incarcerated prior to his arrest in Germany was attributable to the French

prosecution, rather than to the U.S. charges. See Tchibassa, 452 F.3d at 926–27.

“Of the[] forms of prejudice,” however, “the most serious is the last, because the inability

of a defendant adequately to prepare his case skews the fairness of the entire system.” Doggett,

505 U.S. at 654

(quoting Barker,

407 U.S. at 532

). Here, the forty-three month interval between

Demirtas’s indictment and his appearance before this Court is well beyond the amount of time

ordinarily deemed “presumptively prejudicial.”

Id. at 651

, 652 n.1 (“[C]ourts have generally

found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.”).

Indeed, even if limited to the period of time running from the completion of the French

proceedings—prior to which there was no colorable means of obtaining custody of Demirtas—to

Demirtas’s arrest in Germany, the two-year delay exceeds the period of time that is

presumptively prejudicial. Demirtas contends that this delay has prevented him from

56 interviewing witnesses who were incarcerated with him in France, and who have since been

released and cannot be located. Dkt. 24 at 9; June Tr. at 66–68 (defense counsel’s representation

that to date, her investigator, who is located abroad, has been unable to track down current

addresses for the potential witnesses). The parties dispute, however, whether these prospective

witnesses’ testimony would be inculpatory or exculpatory. Dkt. 44 at 21–22; June Tr. at 67–68.

Given the dearth of evidence regarding any lost witnesses and the content of their would-

be testimony, Demirtas has not made a showing of “particularized” or “specific” prejudice. 28

Doggett, 505 U.S. at 655–56; see also Tchibassa,

452 F.3d at 927

. But neither has the

government “persuasively rebutted” the presumption of prejudice. Doggett,

505 U.S. at 658

That presumption rests on the understanding that “impairment of one’s defense is the most

difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence

and testimony ‘can rarely be shown.’”

Id.

at 655 (quoting Barker,

407 U.S. at 532

). Here, the

passage of time in bringing Demirtas to the United States to stand trial “presumptively

compromises the reliability of a trial in ways that neither party can prove or, for that matter,

identify.” Id.; see also Barker,

407 U.S. at 532

. Thus, in balancing the Barker factors, the

presumptive prejudice to Demirtas from delay remains “part of the mix of relevant facts.”

Doggett,

505 U.S. at 656

28 Demirtas points out that the French have an inquisitorial, rather than an adversarial, criminal justice system, meaning that the investigation is conducted by the magistrate and not the defense lawyers. Thus, Demirtas’s French lawyers would not have engaged in the kind of investigation that U.S. defense lawyers employ. See Dkt. 24 at 9. The Court recognizes this difference between the U.S. and French systems but lacks specific evidence regarding the scope of the French investigation, whether the magistrate’s files are available, and, if they are, whether they would reveal some or all of the information Demirtas seeks. 57 E. Balancing

Finally, the Court must balance the four factors. As for the first factor—the length of the

delay—the forty-three-month delay between Demirtas’s indictment and his initial appearance

before this Court weighs somewhat in favor of dismissal. The delay was more than three times

as long as the threshold one-year delay that triggers a Barker analysis, and “courts have

dismissed cases on speedy trial grounds based on delays of [shorter] length.” Fernandes,

(twenty-three month delay). This delay must, however, be examined in the

context of the second Barker factor, which requires consideration of which portions of the delay,

if any, are attributable to the government.

The second factor—“[t]he flag all litigants seek to capture,” Loud Hawk, 474 U.S. at

315—“assesses whether the government or the defendant is more to blame for the delay.”

Fernandes,

. Here, because Demirtas was unaware of the U.S. charges

pending against him prior to his arrest in Germany, he cannot be blamed for that delay. As for

whether the government is to blame, as explained above, the government has established that it

had a good-faith belief, supported by substantial evidence, that a formal request to extradite

Demirtas would have been futile during the French prosecution, as well as once Demirtas was

returned to the Netherlands—accounting for thirty-one months of the challenged delay. And,

although Demirtas’s extradition from Germany after he was arrested there in 2015 took six

months to carry out, the government unquestionably proceeded with due diligence during this

period.

Complicating the matter is the fact that the government has not “provided substantial

evidence that extradition would have been futile” for the entirety of the time preceding

Demirtas’s arrest in Germany. Fernandes,

. Demirtas has propounded a

58 plausible theory of how his removal to the United States for prosecution might conceivably have

been achieved during the six-month window between the conclusion of the French case on

January 8, 2013, and his transfer to the Netherlands on July 17, 2013. The government could

have raised this possibility with the French and pressed harder for extradition during this time.

But, the Court also concludes that the government did not act unreasonably when it failed to

recognize that a combination of treaty provisions and foreign laws, if wielded in combination

with the cooperation of two foreign governments, might have provided a path forward, and

instead accepted a French official’s categorical statements that extradition from France would

not be granted. It is only with the benefit of hindsight and a nuanced understanding of an oddity

of Dutch prior jeopardy law that it becomes evident that this was the critical moment to press for

Demirtas’s extradition. This is thus an unusual case in which the government is arguably

responsible, but not substantially culpable, for the delay in bringing Demirtas to trial, because his

U.S. prosecution might conceivably have started as early as late January 2013. At most, the

government is responsible for this approximately two-and-a-half year difference in when

Demirtas’s U.S. proceedings might have commenced but for the government’s failure to seek

extradition from France. The process that Demirtas suggests that the government might have

pursued was by no means a sure thing, but it was a path that the government might have at least

presented to the French had it put all of the (admittedly complex) pieces together at the relevant

time.

The third factor, the defendant’s assertion of his right to a speedy trial, generally “repeats

the analysis of defendant’s role in causing the delay.” Fernandes,

. Here,

there is no evidence that Demirtas was aware of the charges against him until he was arrested in

Germany, and thus he cannot be blamed for failing to assert his right to a speedy trial before that

59 time. This is accordingly an unusual case in a second respect: Unlike in most of the cases cited

by the government, Demirtas did not knowingly become a fugitive from justice. Cf., e.g.,

Tchibassa,

452 F.3d at 926

; Wangrow,

924 F.2d at 1437

; Blanco,

861 F.2d at 779

. And although

Demirtas contested his extradition from Germany and was thus, in a sense, “a reluctant

defendant,” Bagga,

782 F.2d at 1545

, the Court declines to hold against him his assertion of his

rights of appeal, absent evidence that his appeals were frivolous, cf. Loud Hawk, 474 U.S. at

314–15. Rather, it merely holds that the delay occasioned by Demirtas’s efforts to fight

extradition do not count against the speedy trial clock.

Finally, with respect to the fourth factor—prejudice—Demirtas has not established that

he suffered “particularized” or “specific” prejudice. Doggett, 505 U.S. at 655–56. But because

“the government is more to blame” than Demirtas for not bringing him to trial approximately

two-and-a-half years earlier than it did, Demirtas “is entitled to a presumption of prejudice,

which the government has not rebutted.” Fernandes,

On balance, the Court finds that the government did not unreasonably delay Demirtas’s

prosecution and that he is not entitled to dismissal of the indictment based on a violation of his

Sixth Amendment right to a speedy trial. This case is a difficult one, which cannot be answered

with a simple (or not so simple) assessment of which party is right about the meaning of the

relevant treaties, conventions, and foreign law. The Supreme Court has admonished, moreover,

that “none of the four [Barker] 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.” Barker,

407 U.S. at 533

That is, “[t]he Barker test” is not intended to provide “an easy, mechanical answer,” requiring

instead “a difficult and sensitive balancing process.” Jones,

524 F.2d at 846

; see also Barker,

407 U.S. at 530

(“A balancing test necessarily compels courts to approach speedy trial cases on

an ad hoc basis.”).

Here, had the government fully anticipated and understood the problems of foreign law

involved in obtaining custody of Demirtas, it might have been able to bring him to trial sooner.

This is not a case, however, in which the government simply failed to take an “obvious step to

secure” custody of the defendant. Fernandes,