United States v. Demirtas

• Decision Date: 02 September 2016
• Docket Number: No. 11-cr-356 (RDM),11-cr-356 (RDM)
• Citation: 204 F.Supp.3d 158
• Parties: UNITED STATES of America v. Irfan DEMIRTAS
• Court: U.S. District Court — District of Columbia

204 F.Supp.3d 158

UNITED STATES of America

v.Irfan DEMIRTAS

No. 11-cr-356 (RDM)

United States District Court, District of Columbia.

Signed September 2, 2016

Ari B. Redbord, Michael C. Dilorenzo, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

Jonathan Jeffress, Federal Public Defender for the District Of Columbia, Washington, DC, for Irfan Demirtas.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

This matter is currently before the Court on the defendant's motion to dismiss the indictment for violation of his Sixth Amendment right to a speedy trial. Dkt. 24. For the reasons explained below, the Court will deny that motion.

I. FACTUAL BACKGROUND

The defendant, Irfan Demirtas, is a Dutch and Turkish citizen. Dkt. 58–1 at 2; Dkt. 67–1 at 3. He is charged with providing, attempting to provide, and conspiring to provide material support to terrorists, in violation of 18 U.S.C. § 2339A (Count I); providing, attempting to provide, and conspiring to provide material support or resources to a designated terrorist organization (the Islamic Movement of Uzbekistan ("IMU")) in violation of 18 U.S.C. § 2339B (Count II); receiving military-type training from a foreign terrorist organization in violation of 18 U.S.C. § 2339D (Count III); using, carrying, possessing, brandishing, or discharging a firearm during and in relation to a crime of violence, to wit, Counts I–III, in violation of 18 U.S.C. § 924(c)(1)(A) (Count IV); as well as aiding and abetting the foregoing crimes, in violation of 18 U.S.C. § 2. Dkt. 3.

Prior to his indictment on these charges, Dutch police arrested Demirtas on May 16, 2008, in the Netherlands pursuant to a European Arrest Warrant issued by French authorities, who were pursing their own investigation of Demirtas's involvement with the IMU. Dkt. 58–1 at 2; Dkt. 80–2 at 3. On July 18 or 19, 2008, Demirtas was delivered to France pursuant to that warrant. Dkt. 24; Dkt. 58–1 at 2; see Dkt. 78–13. In accordance with Dutch law and pursuant to an order of a Dutch court, the Dutch surrender of Demirtas to the French was conditioned on a promise that, if Demirtas was convicted and sentenced by the French, "he may serve his sentence in the Netherlands." Dkt. 78–13 at 4 (citing Article 6 of the Dutch Surrender of Persons Law).

The French then detained Demirtas pending an investigation by a French magistrate specializing in counterterrorism investigations.¹ Transcript of Aug. 3–4, 2016 Hearing ("Aug. 3–4 Tr.") at 33 (Dkts. 81, 83, 84). The French investigation culminated in charges that Demirtas "direct[ed] an[d] organiz[ed] a criminal conspiracy to plan acts of terrorism and finance[ed] a terrorist undertaking." Dkt. 73–1 at 2; Transcript of June 1, 2016 Hearing ("June Tr.") at 48 (Dkt. 69).

In late 2008, the Federal Bureau of Investigation ("FBI") learned that Demirtas was in French custody and commenced its own investigation. Dkt. 24 at 2; Dkt. 44 at 4. As part of that investigation, the FBI and Assistant United States Attorney Michael C. DiLorenzo interviewed Demirtas on September 24, 2009, while he was in French custody. Dkt. 58–7 at 2. Over two years later, on December 8, 2011, a U.S. grand jury returned an indictment under seal containing the charges outlined above. See Dkt. 3.² All four counts stemmed from Demirtas's alleged ties to the IMU. Id. A magistrate judge issued a bench warrant for Demirtas's arrest, also under seal, the same day.

On January 18, 2012, the U.S. government issued an Interpol diffusion seeking Demirtas's identification and detention pending a formal request for extradition (also known as a provisional arrest). Dkt. 58–8 at 3; see June Tr. at 6. The following day, DiLorenzo contacted Monique Roth, a trial attorney with the Department of Justice's ("DOJ") Office of International Affairs ("OIA"), who served as the DOJ's attaché in Paris, seeking assistance with an extradition from France in what he referred to as the "IMU case." Dkt. 67–3 at 2 (Carter Decl. ¶ 6); see Aug. 3–4 Tr. at 29, 32; Dkt. 79–8 at 1. As the DOJ's attaché in Paris, Roth "was essentially the representative of the Central Authority for the United States for all mutual legal assistance and extradition matters with the French." Aug. 3–4 Tr. at 29.³ Roth responded to DiLorenzo on January 20, 2012, with general information about the extradition process. Dkt. 79–8 at 2.

On January 27, 2012, in response to the Interpol diffusion, an official from the French Ministry of Justice—the French Central Authority for extradition matters—telephoned Roth about Demirtas's case. Aug. 3–4 Tr. at 31–32, 48.⁴ Roth documented the conversation in a "memo to file," stating that her French counterpart had told her that "France can't act on" the "p [rovisional] a[rrest] request that's been diffused through Interpol" because the French "got [Demirtas] from the Netherlands on a European Arrest Warrant." Dkt. 79–8 at 7–8; see also Aug. 3–4 Tr. at 38, 60. Roth wrote that "[t]he Netherlands conditioned (as it always does) its surrender of a Dutch citizen (which, apparently, [Demirtas] is) ... pursuant to a European Arrest Warrant on the agreement of ... France[ ] to return the person to the Netherlands to serve any sentence imposed in ... France[ ]." Dkt. 79–8 at 8. According to Roth's memo,

That means that if Demirtas is convicted here [in France], he gets shipped immediately to the Netherlands to serve the sentence there. For that reason, France cannot authorize/approve his extradition to the States. Because France will not extradite a guy while incarcerated in France on French charges (the situation now with his pretrial detention) and because they couldn't extradite him upon conviction ( [because] he has to be returned to the Netherlands), the request for provisional arrest or extradition would be immediately denied.

Id. Roth further explained that she had inquired about submitting a provisional arrest request as "insurance" "in the event the case goes bust in France," but her French counterpart responded that any such request would be denied and that, in any event, "there is a [ten]day delay before release from the date of any court decision that would result in his freedom, so [the U.S. government would] have some time to get the [provisional arrest request] served." Id. Finally, Roth recounted that she had proposed contacting the French magistrate directly in order "to get a better feel for the strength of the case and timing," but that her French counterpart had said she "could not do that." Id. Roth wrote that her counterpart's conclusion "make[s] little sense" and "would leave them with no information at all." Id.

That same day, Roth's French counterpart emailed her "[t]o follow up on [their] phone conversation." Dkt. 58–8 at 2. The French official stated:

[t]he French authorities cannot respond to [the U.S. Interpol diffusion], to the extent that Irfan Demirtas, a Dutch national, was given to us by the Netherlands as a part of a European arrest warrant, and France promised to return him to the Netherlands to execute the possible sentence....

France being committed to the Netherlands to return [him] ..., it cannot give him to a different country which might ask for his return as part of either a European arrest warrant or an extradition request. Besides, [the investigating magistrate] just told me that he thinks the judicial investigation should end from now until July 2012. I wanted to let you know so that you could, if necessary, seek out the Dutch authorities in due course.

Id. In light of this information, Roth told DiLorenzo, who was preparing a French extradition package, to "put [his] pen down." Dkt. 79–8 at 5–6.

Notwithstanding the French official's admonition, Roth then contacted the French magistrate assigned to Demirtas's case. Aug. 3–4 Tr. at 35–36. On January 31, 2012, Roth emailed DiLorenzo to inform him that the magistrate had told her that the investigation needed to be finished by "May/June 2012"; that the trial would take place in late 2012 or early 2013; and that Demirtas was "sure to be convicted" and would "likely [receive a sentence of] 5–7 years." Dkt. 79–8 at 11; cf. Aug. 3–4 Tr. at 47, 50 (Roth's testimony of her recollection that, notwithstanding the foregoing, she was told that the investigation would end in July 2012). She also told DiLorenzo that "[t]here is no way that we can get him temporarily before trial" and that "[a]s you know, ... you can't get him afterwards as he'll be shipped straight away to the Netherlands." Dkt. 79–8 at 11; see also Aug. 3–4 Tr. at 37. Roth suggested that DiLorenzo talk to Judith Friedman, a senior trial lawyer at OIA responsible for the Netherlands, "to find out whether the Dutch are typically amenable to giving us temporary surrender while the subject is doing time in their prison." Dkt. 79–8 at 11; see also Dkt. 71–1 at 1–2 (Friedman Decl. ¶¶ 1–3); Aug. 3–4 Tr. at 103. Roth copied Friedman on the email. Id.

In the same email, Roth added a note directed to Friedman. Id.⁵ Roth explained that Demirtas was in the custody of the French pursuant to a European Arrest Warrant that included a "promise[ ] to remit the person to the Netherlands to serve any sentence imposed." Dkt. 79–8 at 11. She further stated that "France will not entertain an extradition request from us (they can't grant extradition while he's pending trial, and they won't have the body upon conviction)" and that DiLorenzo thus needed to "gear up to pursue extradition from the Netherlands when Demirtas is returned to them." Id.

Friedman replied later that day. See Dkt. 79–8 at 12. She explained that once Demirtas arrived in the Netherlands, his sentence would be "convert[ed]" to a Dutch sentence, which can be no longer than the French sentence, and that he would serve only two-thirds of the converted sentence. Id. Friedman stated that although "[t]he Dutch will do a temporary surrender [,] ... extraditing a Dutch national generally takes about ...