United States District Court, M.D. Pennsylvania
H. RAMBO UNITED STATES DISTRICT JUDGE.
the court is the Motion to Dismiss for Violation of
Defendant's Right to a Speedy Trial Due to Pre-Arrest
Delay (Doc. 42) filed by Defendant Omoefe Okoro
(“Defendant” or “Okoro”). For the
reasons stated below, the court shall deny the motion.
September 26, 2012, a grand jury indicted Okoro of mail
fraud, wire fraud, money laundering, and conspiracy, based on
the United States Attorney's Office's
(“USAO”) allegations that Okoro conspired with a
group to defraud several law firms out of thirty million
dollars. Okoro, however, was not arrested until February 14,
2017. Between those two dates, the USAO went through an
extensive process seeking to extradite Okoro from Canada. The
USAO coordinated with the Office of International Affairs
(“OIA”) of the Criminal Division of the United
States Department of Justice (“DOJ”) to submit
sufficient paperwork and proof to acquire the aid of Canadian
law enforcement in extraditing Okoro. The United States and
Canada have an agreement, by treaty, to cooperate with each
other in the extradition of criminals. Canada has complied
with the treaty by creating its own internal process for
reviewing extradition applications from the United States.
While extradition was ultimately successful, this process
resulted in an over four-year delay in arresting Okoro.
3, 2019, Defendant filed a motion to dismiss the indictment,
arguing, in large part, that the delay in acquiring
Okoro's arrest was due to negligent conduct by the USAO.
(Doc. 42.) On June 25, 2019, the USAO filed a response,
thoroughly laying out the steps it took in attempting to
extradite Okoro from Canada. (Doc. 50.) On September 30,
2019, the court held an evidentiary hearing on the matter,
whereby the parties elicited testimony from Judge Christy
Fawcett, a former Assistant United States Attorney for the
Middle District of Pennsylvania from 2000 to 2016. On October
10, 2019, Defendant filed, by leave of court, a supplemental
brief in support of his motion to dismiss. (Doc. 61.) This
matter is thus ripe for resolution.
Standard of Review
Sixth Amendment to the United States Constitution states that
“[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public
trial[.]” The United States Supreme Court has held
that the Sixth Amendment right to a speedy trial is distinct
from “the accused's other constitutional
rights” because a long delay in being tried does not
inherently prejudice a defendant in the same way being
deprived of a lawyer or the opportunity to defend oneself
would; in fact, “deprivation of the right may work to
the accused's advantage.” Barker v. Wingo,
407 U.S. 514, 521 (1972). “[T]he right to a speedy
trial is a more vague concept than other procedural rights.
It is, for example, impossible to determine with precision
when the right has been denied.” Id. In
contrast to other court-constructed remedies, like the
exclusionary rule, the “amorphous quality of the
right” to a speedy trial “leads to the
unsatisfactorily severe remedy of dismissal of the indictment
when the right have been deprived . . . mean[ing] that a
defendant who may be guilty of a serious crime will go free,
without having been tried. . . . but it is the only possible
remedy.” Id. at 522.
the peculiarity of the right to a speedy trial, the Supreme
Court laid out four factors for courts to balance:
“Length of delay, the reason for the delay, the
defendant's assertion of his right, and prejudice to the
defendant.” Id. at 530. The court must
consider these factors in light of the complexity of the
crime of which the defendant is accused. Id.
first Barker factor requires “a double
enquiry.” Doggett v. United States, 505 U.S.
647, 651 (1992). First, the court must apply a threshold
test, considering the raw length of time between the
defendant being accused of a crime and being arrested. The
length of delay must be sufficiently long to create
presumptive prejudice before the court conducts a full
analysis of the Barker factors. United States v.
Velazquez, 749 F.3d 161, 174 (3d Cir. 2014). Here, the
parties agree that, even under the USAO's framing of the
issue, a roughly four-year delay occurred between Okoro being
accused and arrested. This is sufficient to warrant moving
forward in the analysis. See Id. (holding a
fourteen-month delay is sufficient to trigger a full
Barker analysis) (citing United States v.
Battis, 589 F.3d 673, 678 (3d Cir. 2009)); accord
Doggett, 505 U.S. at 652 n.1 (holding the circuit courts
have generally held a delay of close to one year satisfies
the first factor). Thus, the court turns to the second facet
of the delay factor, “the extent to which the delay
stretches beyond the bare minimum needed to trigger judicial
examination of the claim.” Doggett, 505 U.S.
at 652. Here, the court notes that a four-year delay, on its
own, is substantial. This factor thus weighs against the
USAO. The court must now turn to examining the cause for such
delay, allocating the portion attributable to any
unreasonable conduct by the USAO.
examining the USAO's conduct, the court begins by noting
that USAO culpability can be grouped into categories resting
on four tiers. At the top is the USAO intentionally delaying
trial to gain a tactical advantage over the defendant, an act
which would be “weighted heavily against the
government.” Barker, 407 U.S. at 531. One step
below that exists USAO negligence, weighted moderately
against the USAO. Id. The third tier concerns delay
caused by events entirely outside of the USAO's control,
such as a missing critical witness. Such an event does not
warrant any weight against the USAO. See Id. And the
fourth tier concerns portions of delay attributable to the
defendant-a situation that, at best, renders the delay
irrelevant, and, at worst, suggests the defendant has waived
the right to a speedy trial. See Id. at 529. In
evaluating the delay, the court must also consider the
complexity of the crime at issue, for “the delay that
can be tolerated for an ordinary street crime is considerably
less than for a serious, complex conspiracy charge.”
Id. at 531.
analyzing delay and culpability can be complex, the court
eschews a lengthy discussion because its decision ultimately
turns on one core conclusion. Judge Fawcett, testifying on
behalf of the USAO, laid out a very thorough, persuasive,
and-to Defendant's admission-credible explanation of how
the delay in extraditing Okofor was primarily attributable to
the US-Canadian extradition process itself. Cf. Zilich v.
Reid, 36 F.3d 317, 321-22 (3d Cir. 1994) (“Face to
face with living witnesses the original trier of the facts
holds a position of advantage from which appellate judges are
excluded. In doubtful cases the exercise of his or her power
of observation often proves the most accurate method of
ascertaining the truth.”) (internal quotations and
United States v. Alexander, 817 F.3d 1178 (9th Cir.
2016), the United States Court of Appeals for the Ninth
Circuit considered a strikingly similar case. There, the USAO
took approximately five years to extradite a man from Canada
for conspiracy to commit mail and wire fraud. Id. at
1180-81. The USAO introduced similar testimony regarding the
long process of obtaining extradition from Canada, explaining
that an “extensive back-and-forth between the United
States and Canada was ‘very typical.'”
Id. at 1181. Like Defendant, Mr. Alexander was able
to pick apart the process, pointing to places where the USAO
dragged its feet in getting information back to Canada when
it was requested. See Id. at 1182-83. The Ninth
Circuit resolved the issue by allocating some delay to the
defendant, some to Canada, and some to the USAO, leaving the
USAO with only a few months of responsibility. See
Id. The court thus found that, while some delay was
attributable to the USAO, it was ultimately an insufficient
amount to warrant a presumption of prejudice. See
court finds the reasoning in Alexander persuasive.
Judge Fawcett's testimony here regarding the specific
steps taken by the USAO in seeking Okoro's extradition
leads the court to believe that only a few months of delay
could be attributed to the United States's negligence.
Specifically, the court finds the length of time between some
requests for information and the USAO's response to be
inexplicably long. But the majority of the delay seems
attributable to the extradition process itself. Because this
inquiry concerns the fault of the United ...