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United States v. Asiegbu

February 17, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
NATTY ASIEGBU, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Margaret M. Morrow United States District Judge

ORDER DENYING MOTION TO DISMISS INDICTMENT

On June 27, 2002, defendant Natty Asiegbu was indicted on charges of violating 18 U.S.C. § 1343, (wire fraud); 18 U.S.C. § 2326 (enhanced penalties for telemarketing fraud against the elderly); 18 U.S.C. § 1302 (mailing lottery tickets and related material); and 18 U.S.C. § 2 (aiding and abetting and causing an act to be done). In June 2004, the grand jury returned a first superseding indictment that included the charges outlined above and added new sentencing allegations.

Asiegbu has now moved to dismiss the indictment. He asserts that by arresting him three years after his indictment, the government has violated his Sixth Amendment right to a speedy trial.

I. FACTUAL BACKGROUND

A. Factual Allegations Underlying the Indictment

The charges against Asiegbu arose out of a joint investigation of fraudulent telemarketing businesses ("the Lottery Companies") by the Federal Bureau of Investigation, the Royal Canadian Mounted Police and the British Columbia Ministry of Attorney General.*fn1 The government contends that, while working in Canada as a telemarketer for the Lottery Companies, Asiegbu telephoned elderly victims in the United States and informed them that they were winners of a foreign lottery.*fn2 Victims were purportedly told that they had to send money to the Lottery Companies to claim their prizes, which money would be used to pre-pay taxes, attorneys' fees, and administrative fees on the winnings.*fn3 Some victims were told that, if they paid a fee, the Lottery Companies could recover funds they had lost previously to other fraudulent telemarketers.*fn4 The government alleges that elderly victims of the scheme lost more than $2 million.*fn5

B. The Circumstances Surrounding Asiegbu's Indictment and Transfer to U.S. Custody

At the time of the indictment, Asiegbu resided in Canada.*fn6 In its opposition, the government explains the steps it must take to extradite a defendant from Canada. First, the United States Attorney must send an extradition request to the Department of Justice's Office of International Affaris ("OIA"); an OIA attorney then determines whether the request meets the requirements of the United States' extradition treaty with Canada.*fn7 After finalizing the request, the OIA sends it to the Canadian Department of Justice, and "at the request of [the] OIA, the U.S. Department of State issues a separate diplomatic note requesting the extradition."*fn8 The Canadian Department of Justice's International Assistance Group ("IAG") reviews the request, and, if necessary, requests supplemental information.*fn9 The IAG then sends the request to the appropriate regional office of the Canadian Department of Justice for review.*fn10 If the request is satisfactory, an arrest warrant for the defendant is issued.*fn11 After the defendant is arrested, a Canadian extradition judge determines "whether the conduct in the foreign state would constitute an offense in Canada if it had occurred in Canada and if there is sufficient evidence to prosecute the fugitive."*fn12 Finally, "the Canadian Minister of Justice must make a decision whether the defendant should be surrendered to the requesting state in accordance with the relevant extradition treaty."*fn13

The government sent a request for Asiegbu's extradition to the OIA in October 2002.*fn14

The OIA submitted the request to the IAG in November 2002, and the State Department issued a diplomatic note requesting Asiegbu's extradition on January 29, 2003. The note contained an unspecified error, and the State Department issued a new note on February 24, 2003.*fn15 On March 10, 2003, the IAG requested supplemental information; the United States provided the requested information on April 23, 2003.*fn16 The IAG requested additional supplemental information on January 21, 2004; the government provided this information on June 24, 2004.*fn17 On December 21, 2004, the IAG informed the OIA that it had approved the request and forwarded it to the regional office of the Canadian Department of Justice in British Columbia.*fn18 Canadian authorities arrested Asiegbu on May 12, 2005.*fn19 Asiegbu contested his extradition in the Canadian courts.*fn20 He was extradited in October 2008, and made his first court appearance on October 31, 2008.*fn21

Trial was initially scheduled for December 16, 2008; it was continued to March 3, 2009 at Asiegbu's request.*fn22

II. DISCUSSION

A. Legal Standard Governing Claims Of Post-Indictment Delay

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. CONST., AMEND. 6. The court evaluates claims that a defendant's speedy trial rights have been violated by balancing four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) the prejudice to the defendant. United States v. Mendoza, 530 F.3d 758, 762 (9th Cir. 2008) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). The speedy trial inquiry is a two-step process. First, the court considers whether the delay "passes a threshold point of 'presumptively prejudicial' delay." See United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993) (citing Doggett v. United States, 505 U.S. 647, 652 (1992)). Most courts generally find post-accusation delay presumptively prejudicial if it approaches one year. See Doggett, 505 U.S. at 652, n. 1. The Ninth Circuit has held that even "a six-month delay constitutes a 'borderline case.'" United States v. Lam, 251 F.3d 852, 856 (9th Cir. 2001) (quoting United States v. Valentine, 783 F.2d 1413, 1417 (9th Cir. 1986)).

If the delay passes this threshold, "the court considers the extent to which the delay exceeds the threshold point in light of the degree of diligence by the government and acquiescence by the defendant to determine whether sufficient prejudice exists to warrant relief." Beamon, 992 F.2d at 1012 (citing Doggett, 505 U.S. at 650-56). "'[N]one of the four 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. In sum, these factors ...


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