United States v. Alexander

• Decision Date: 01 April 2016
• Docket Number: No. 14–50576.,14–50576.
• Citation: 817 F.3d 1178
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. John Felix ALEXANDER, aka Africa, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

817 F.3d 1178

UNITED STATES of America, Plaintiff–Appellee,

v.John Felix ALEXANDER, aka Africa, Defendant–Appellant.

No. 14–50576.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2016.

Filed April 1, 2016.

Alissa Sawano Peterson (argued), Law Offices of Alissa Sawano Peterson, Irvine, CA, 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, CA, for Plaintiff–Appellee.

Before: STEPHEN REINHARDT, MARY H. MURGUIA, and JOHN B. OWENS, Circuit Judges.

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 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 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, 92 S.Ct. 2182, 33 L.Ed.2d 101 (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 other three factors." United States v. Sears, Roebuck & Co., Inc., 877 F.2d 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.2d 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, 112 S.Ct. 2686, 120 L.Ed.2d 520 (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, 112 S.Ct. 2686 ; 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, 112 S.Ct. 2686 ).

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 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...