United States v. John Alexander , 817 F.3d 1178 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50576
Plaintiff-Appellee,
D.C. No.
v. 2:07-cr-01402-
SJO-20
JOHN FELIX ALEXANDER, AKA
Africa,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
March 10, 2016—Pasadena, California
Filed April 1, 2016
Before: Stephen Reinhardt, Mary H. Murguia,
and John B. Owens, Circuit Judges.
Per Curiam Opinion
2 UNITED STATES V. ALEXANDER
SUMMARY*
Criminal Law
The panel affirmed the district court’s denial of a motion
to dismiss an indictment in a case in which the defendant,
who was extradited from Canada, claimed that the delay
between the indictment and his arrest violated his
constitutional right to a speedy trial.
The panel wrote that the delay of almost five years is
sufficient to trigger an inquiry into the other factors set forth
in Barker v. Wingo, but agreed with the district court that the
balance of those factors weighs against finding a
constitutional violation. The panel held that the record
supports the district court’s conclusion that the United States
pursued the defendant’s extradition with reasonable diligence.
The panel rejected the defendant’s argument that the United
States should be held jointly responsible for Canada’s delay
under the “joint venture” doctrine. The panel held that the
factor relating to the defendant’s assertion of his right to a
speedy trial favors neither party, where there is no evidence
that the defendant knew about the indictment until after he
had been arrested, at which point he fought extradition for
over 16 months. The panel expressed concern that the 9.6
months it took for the U.S. prosecutor to submit a draft of the
extradition request to the Department of Justice Office of
International Affairs could have been reduced, but wrote that
such a period of negligence alone would not deny the
defendant’s right to a speedy trial without a sufficient
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ALEXANDER 3
showing of prejudice. The panel concluded that the
defendant had not met his burden of showing particularized
prejudice, where he was not incarcerated for any portion of
the overall five year delay, he has not shown any uncertainty
or anxiety resulting from the delay, and he has not provided
any non-speculative proof as to how his defense was
prejudiced.
COUNSEL
Alissa Sawano Peterson (argued), Law Offices of Alissa
Sawano Peterson, Irvine, California, for Defendant-
Appellant.
Kerry C. O’Neil (argued), Assistant United States Attorney;
Eileen M. Decker, United States Attorney; Lawrence S.
Middleton and Ellyn Marcus Lindsay, Assistant United States
Attorneys, United States’ Attorney’s Office, Los Angeles,
California, for Plaintiff-Appellee.
OPINION
PER CURIAM:
On December 18, 2007, Defendant John Felix Alexander
was indicted, along with twenty-one co-defendants, for
conspiracy to commit mail and wire fraud against elderly
victims living in Canada and the United States. Shortly after
the indictment was returned, the United States initiated its
effort to extradite Alexander from Canada for trial. After
four years, nine months, and 29 days, Canada finally
approved the United States’ request for Alexander’s
4 UNITED STATES V. ALEXANDER
extradition, and Canadian authorities arrested Alexander
shortly thereafter. Following his arrest, Alexander resisted
extradition for approximately 16 additional months.
Almost immediately upon entering the United States,
Alexander filed a motion to dismiss his indictment, claiming
that the delay between the indictment and his arrest violated
his constitutional right to a speedy trial.1 The district court
held a hearing on the issue during which the U.S. and
Canadian officials responsible for Alexander’s case testified
that the process of extraditing a defendant from Canada can
be a frustrating one. The prosecutor must first send a request
to the Department of Justice, Office of International Affairs
(“OIA”), where it is reviewed by the OIA attorney in
accordance with the extradition treaty between the United
States and Canada. Once the request is put into final form,
the U.S. Department of State issues a diplomatic note
requesting extradition. The Canadian Central Authority for
extradition, the International Assistance Group (“IAG”), then
receives and reviews the request, and may require additional
information or even a new request. Once IAG is satisfied that
the request meets Canadian requirements, it issues an
Authority to Proceed, and the request is given to the Canadian
prosecutor’s office for the issuance of an arrest warrant.
In this case, it took the U.S. prosecutor 9.6 months to
submit a draft of the extradition request to OIA. It then took
OIA four months to complete its initial review and return the
1
The length of delay in speedy trial claims is ordinarily measured from
the time of the indictment to the time of trial. United States v. Gregory,
322 F.3d 1157, 1162 (9th Cir. 2003). In this case, however, the defendant
challenges only the delay between the indictment in December 2007 and
his arrest in Canada in October 2012.
UNITED STATES V. ALEXANDER 5
draft to the prosecutor. Four months later, the request was
provided to the Canadian authorities. Canada did not approve
the request, however, and instead repeatedly returned it to the
United States with demands for corrections or additional
information. On each occasion, the United States prosecutor
revised the request per Canada’s specifications, only to have
Canada identify other reasons to return it. This process
continued for over three years. According to the testimony at
the hearing, this extensive back-and-forth between the United
States and Canada was “very typical.”
In total, the district court found, 32.5 months of the delay
was attributable to Canada, 26.4 months of the delay was
attributable to the United States, and 16 months resulted from
Alexander’s fighting the extradition. With respect to the
delay attributable to the United States alone, the district court
held that the United States “pursued extradition with
reasonable diligence” and that any prejudice caused by the
delay was not severe enough to have denied Alexander his
right to a speedy trial. Accordingly, the court denied
Alexander’s motion.
We review a district court’s denial of a speedy trial claim
de novo, although factual determinations underlying the
decision are reviewed for clear error. United States v.
Mendoza, 530 F.3d 758, 762 (9th Cir. 2008). Under Barker
v. Wingo, 407 U.S. 514, 530 (1972), we must review four
factors in determining whether a defendant has been denied
his right to a speedy trial: (1) the length of the delay, (2) the
reason for the delay, (3) the defendant’s prior assertion of the
right, and (4) the prejudice resulting from the delay.
The length of the delay is a “threshold” factor, and a
sufficiently lengthy delay “necessitates an examination of the
6 UNITED STATES V. ALEXANDER
other three factors.” United States v. Sears, Roebuck & Co.,
Inc., 877 F.3d 734, 739 (9th Cir. 1989). Here, the delay of
almost five years is sufficiently lengthy to trigger an inquiry
into the other factors. See United States v. Gregory, 322 F.3d
1157, 1161–62 (9th Cir. 2003) (“[D]elays approaching one
year are presumptively prejudicial.”). We agree with the
district court, however, that the balance of the other factors
weighs against finding a constitutional violation.
The second factor, the reason for delay, is “the focal
inquiry.” Sears, 877 F.3d at 739. If the government can
show that the delay was wholly justifiable because it
proceeded with reasonable diligence, the defendant’s speedy
trial claim generally cannot succeed in the absence of a
showing of actual prejudice resulting from the delay. See
Doggett v. United States, 505 U.S. 647, 656 (1992). If the
government intentionally delayed or negligently pursued the
proceedings, however, prejudice may be presumed, and its
weight in the defendant’s favor depends on the reason for the
delay and the length of the delay. Id. at 656–57; United
States v. Aguirre, 994 F.2d 1454, 1456 (9th Cir. 1993). A
district court’s finding on the reason for delay and its
justifiability is reviewed “with considerable deference.”
Aguirre, 994 F.2d at 1457 (quoting Doggett, 505 U.S. at 652).
Here, the district court determined that on the whole the
United States pursued Alexander’s extradition with
reasonable diligence and the record supports this conclusion.
Alexander argues that the United States was negligent
because it failed to produce adequate extradition requests,
resulting in numerous rounds of review and significant delay.
The testimony from the hearing, however, demonstrates that
this was not a case in which the extradition requests had
substantial deficiencies or in which the U.S. prosecutor
UNITED STATES V. ALEXANDER 7
consistently failed to follow protocol. Rather, the evidence
showed that Canada was not consistent “in terms of the
questions that [it] ask[ed] the United States,” and further, that
delays of this nature are typical of Canadian extradition
requests.
We also reject Alexander’s argument that the United
States should be held jointly responsible for Canada’s delay
under the “joint venture” doctrine. In the context of the
exclusionary rule, the Ninth Circuit has recognized a limited
exception to the general rule that U.S. constitutional
protections are inapplicable to actions of foreign agents
conducted in foreign countries for situations in which “United
States agents’ participation in the investigation is so
substantial that the action is a joint venture between United
States and foreign officials.” United States v. Barona,
56 F.3d 1087, 1091 (9th Cir. 1995). No circuit has ever
extended the joint venture doctrine to the speedy trial context,
and we decline to do so here. Further, the facts of this case
do not support a finding that a joint venture existed in terms
of Alexander’s extradition. The United States neither
participated in nor encouraged the delay caused by the
Canadian authorities. There is no evidence that United States
agents were attempting to undermine Alexander’s speedy trial
right “by circuitous and indirect methods.” See United States
v. Rose, 570 F.2d 1358, 1362 (9th Cir. 1978). Rather, as the
district court concluded, there “was certainly no cooperation
between the prosecutors in Canada and the prosecutors in the
United States” during the extradition process. Accordingly,
no joint venture existed with respect to Alexander’s
extradition.
There is, however, one portion of the delay that we
believe the district court should have weighed against the
8 UNITED STATES V. ALEXANDER
United States. It took 9.6 months for the U.S. prosecutor to
submit a draft of Alexander’s extradition request to OIA, and
the government has failed to adequately explain the extent of
this delay. Some of this time, of course, was necessary to
prepare an extensive request for the extradition of twenty-two
defendants, but it is not clear that all of the 9.6 months should
be ascribed to the complexities of this case—as opposed to
the United States’s negligence. The U.S. prosecutor admitted
that it took her a “couple of months” to clear her other cases
so that she could devote her resources to drafting the
extradition request. Further, it seems that the prosecutor did
not use the entire remaining time to draft the request
efficiently. Although she did not recall how long it took her
to write the request, when asked if she could estimate whether
it took “more than a week and less than a month,” she
responded only that it “was definitely more than a week.”
The third Barker factor is the defendant’s assertion of the
right to a speedy trial. Barker, 407 U.S. at 530. There is no
evidence in the record that Alexander knew about the
indictment against him until after the extradition request had
been approved and he was arrested. After his arrest,
however, Alexander fought extradition for over 16 months.
We have held under similar circumstances that this factor, on
balance, favors neither party. See United States v. Coronoa-
Verbera, 509 F.3d 1105, 1116 (9th Cir. 2007).
The last factor we consider is the prejudice to the
defendant. The amount of prejudice a defendant must show
is inversely proportional to the length and reason for the
delay. See Doggett, 505 U.S. at 655–56. While we are
concerned that the initial prosecutorial delay could have been
reduced, a 9.6 month period of negligence alone would not
deny Alexander’s right to a speedy trial without a sufficient
UNITED STATES V. ALEXANDER 9
showing of prejudice. As the Supreme Court held in Doggett,
“to warrant granting relief, negligence unaccompanied by
particularized trial prejudice must have lasted longer than
negligence demonstrably causing such prejudice.” Id. at 657.
This court has previously held that a violation of the
constitutional right to a speedy trial did not occur in the
absence of a showing of particularized prejudice when the
government’s negligence caused a 22-month delay. Gregory,
322 F.3d at 1162. Here, Alexander has not met his burden of
showing particularized prejudice. He was not incarcerated
for any portion of the overall five year delay, he has not
shown any uncertainty or anxiety resulting from the delay,
and he has not provided any non-speculative proof as to how
his defense was prejudiced by the delay. See Corona-
Verbera, 509 F.3d at 1116; United States v. Williams,
782 F.2d 1462, 1466 (9th Cir. 1985).
After weighing the Barker factors, we agree with the
district court that Alexander was not deprived of his right to
a speedy trial. We note, however, that the U.S. Attorney’s
offices would do well to adopt systems of controls that would
track the status of extradition requests so as to ensure the
timely submission of extradition materials to the Justice
Department and foreign governments. Such a system would
likely have avoided much of the initial 9.6 month delay
present here, which, though not sufficient to affect the
outcome of this case, is troublesome indeed.
AFFIRMED.