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United States v. Asiegbu

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


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 have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.'" Lam, 251 F.3d at 856 (quoting Barker, 407 U.S. at 533).

B. Whether the Nearly Three Year Delay Between Asiegbu's Indictment and His Arrest Violated His Sixth Amendment Right to a Speedy Trial

1. Length of Delay

Asiegbu seeks to dismiss the indictment on the basis of the nearly three year delay between his indictment on June 27, 2002 and his arrest on May 12, 2005. While most post-indictment delay claims challenge the time lapse between indictment and trial, a defendant may also rely on delay between indictment and arrest. See Doggett, 505 U.S. at 652 ("the extraordinary 81/2 year lag between Doggett's indictment and arrest clearly suffices to trigger the speedy trial enquiry"); United States v. Aguirre, 994 F.2d 1454, 1456 (9th Cir. 1993) (holding that a five year delay between indictment and arrest was "long enough to trigger a further look"). As the government concedes, a delay of nearly three years is clearly long enough to trigger a speedy trial inquiry.*fn23

See Doggett, 505 U.S. at 652, n. 1 (delay approaching one year is generally sufficient to trigger inquiry).

2. Reason for Delay

The second factor the court must evaluate is "the reason the government assigns to justify the delay." Barker, 407 U.S. at 531; see also McNeely v. Blanas, 336 F.3d 822, 827 (9th Cir. 2003) ("the prosecution bears the burden of explaining pretrial delays"). In Barker, the Court explained that "different weights should be assigned to different reasons" for delay. Barker, 407 U.S. at 531. A "valid reason," such as a missing witness, will justify an appropriate delay. Id.

A "deliberate attempt" to delay a criminal defendant's trial, by contrast, should be "weighted heavily against the government." Id. A "neutral reason" such as negligence or overcrowded courts should be "weighted less heavily but nevertheless considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Id.; see also Gregory, 322 F.3d at 1162 ("noting that "[t]he government's negligence, which is the reason for the delay, weighs in Gregory's favor"); Beamon, 992 F.2d at 1013 (accepting the district court's finding that "the government did not act with appropriate diligence in pursuing [the defendants]").*fn24

Delay due to extradition does not weigh against the government where the government "move[s] with reasonable alacrity" in seeking extradition. See United States v. Moore, 652 F.2d 384, 388 (9th Cir. 1981) (rejecting defendant's speedy trial claim because the government promptly sought the defendant's extradition and did not obtain trial advantages from delay); see also 9A Federal Procedure, Lawyer's Edition § 22:1286 ("Ordinarily, the delays involved in international extradition do not violate the speedy trial right. Absent evidence of any formal waiver of extradition, courts are unwilling to attribute to the government any delay caused by formal extradition proceedings initiated in compliance with an extradition treaty," citing Moore, 653 F.2d at 388-89; United States v. Thirion, 813 F.2d 146, 154 (8th Cir. 1987); and United States v. Sensi, 664 F.Supp. 566 (D.D.C. 1987)).

Here, there is no indication that the government deliberately attempted to delay Asiegbu's trial, and little, if anything, to suggest that the government acted negligently. Four months elapsed between Asiegbu's indictment and the prosecutor's request to the OIA for Asiegbu's extradition. Although the government has not explained this delay, it does not appear unreasonable, and there is no evidence to suggest it was due to negligence on the part of the prosecutor. Next, a month passed before the OIA sent an official request for extradition. This delay was clearly reasonable. According to the declaration of OIA attorney Jeffrey Olsen, both an extradition request and a diplomatic letter from the State Department are necessary to trigger review by the Canadian government. An additional two months passed before the State Department sent the necessary letter in January. This, too, does not appear to be an unreasonable amount of time. The letter, however, contained an error, and a corrected letter was not sent to Canada until February. Thus, of the eight-month delay between Asiegbu's indictment and the start of Canada's review of the extradition request, at most one month, i.e., the month between the initial diplomatic letter and the corrected letter, is attributable to negligence by the government.

Thereafter, only the length of the time between Canada's requests for supplemental information and the responses to those requests was within the government's control. The government took one month to respond to the first request and five months to respond to the second. Although it is unclear why responding to the second request took significantly longer than responding to the first, the court cannot conclude, based on the record before it, that the government acted negligently. In his reply, Asiegbu argues that the fact that the Canadian authorities requested additional information is attributable to negligence by the government.*fn25

Nothing in the record suggests that the government could have prevented the supplemental requests by anticipating precisely what information Canada would require, however. Rather, Olsen's declaration suggests that a back and forth exchange involving requests for additional information is typical of the extradition process. He explains that after an extradition request is sent to Canada, the IAG "then reviews the request. . . and may request supplemental information or, in some cases, a new request, depending on the nature and complexity of the request and sometimes based on the legal requirements of the courts of the applicable Canadian province where the defendant is located."*fn26

Overall, the court concludes that the government acted with reasonable diligence in seeking Asiegbu's extradition. The reason for the delay, i.e., the need to secure Asiegbu's extradition from Canada, thus does not weigh against the government. See Moore, 652 F.2d at 388; 9A Federal Procedure, Lawyer's Edition § 22:1286.

3. Asiebu's Assertion of His Right to a Speedy Trial

Asiegbu asserts that he was not notified that an indictment had been filed against him until his arrest in February 2005. The government presents no evidence to the contrary. Asiegbu's failure to assert his speedy trial right prior to his arrest, therefore, does not weigh against him. See Doggett, 505 U.S. at 653-54 ("[T]he trial and appellate courts were entitled to accept the defense's unrebutted and largely substantiated claim of Doggett's ignorance [of the indictment]. Thus, Doggett is not to be taxed for invoking his speedy trial right only after his arrest"); Beamon, 992 F.2d at 1013 ("As to the third factor, the defendant's asserting his right to a speedy trial, the district court found that although [the defendants] knew the investigation was continuing, Beamon did not know about the indictment and McMillin turned himself in within a few weeks of finding out he was wanted by the police. Thus, neither can be faulted for contributing to the delay. The third factor, accordingly, favors Beamon and McMillin"); United States v. Williams, 782 F.2d 1462, 1465-66 (9th Cir. 1985) ("[T]he district court found that although there was some indication that Williams may have known that postal authorities were looking for him, there was no evidence, in fact, that Williams knew of the indictment. This factual finding is not clearly erroneous. Thus, the failure to assert his right to a speedy trial will not be weighed against Williams").*fn27

4. Whether Asiegbu Has Suffered Prejudice As A Result Of The Delay

a. Standards Governing Prejudice in the Speedy Trial Context

A defendant typically must show he has suffered actual prejudice as a result of post-indictment delay. The amount of prejudice a defendant must show, however, is inversely proportional to the length and reason for the delay. "No showing of prejudice is required when the delay is great and attributable to the government." United States v. Shell, 974 F.2d 1035, 1036 (9th Cir. 1992) (citing Doggett, 505 U.S. at 655-56 (noting that "affirmative proof of particularized prejudice is not essential to every speedy trial claim. . . . [E]xcessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify")). If the government "has been negligent and the delay does not far exceed the minimum time required to trigger the full Barker inquiry, [however,] '[the court] must consider the amount of delay in relation to particularized prejudice.'" Gregory, 322 F.3d at 1163, citing Beamon, 992 F.2d at 1014. "In negligence cases. . . [the court's] concern for substantiating prejudice diminishes as delay mounts." Beamon, 992 F.2d at 1013.

Where a demonstration of particularized prejudice is required, it "can be shown in three ways: oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the accused's defense will be impaired." Id. at 1014 (citing Doggett, 505 U.S. at 654). The Supreme Court has noted that impairment of an accused's defense is "the most serious [of the three grounds for prejudice] . . . because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker, 407 U.S. at 532.

In evaluating whether an accused's defense has been impaired by delay, a court examines "prejudice caused by the delay that triggered the Barker inquiry, not simply any prejudice that may have occurred before the trial date but [that is] unrelated to the fact of the delay itself." Gregory, 322 F.3d at 1163; see also Barker, 407 U.S. at 534 ("[T]here is no claim that any of Barker's witnesses died or otherwise became unavailable owing to the delay" (emphasis added)). The prejudice suffered must be concrete, not merely speculative. See United States v. Loud Hawk, 474 U.S. 302, 315 (1986) (a "possibility of prejudice is not sufficient to support" a finding that speedy trial rights have been violated); Gregory, 322 F.3d at 1164 (defendant's claim that a higher sentence might be imposed upon conviction as a result of a delay did not satisfy the actual prejudice requirement because "any sentencing prejudice that Gregory might suffer is speculative rather than actual"); Lam, 251 F.3d at 860 ("Lam cannot credibly point to any specific damage to his defense stemming from the delay in his trial. . . . Lam's contentions regarding alleged defects in witness testimony or lost evidence amount at most to speculation and fail to demonstrate any actual prejudice to his defense"); Beamon, 992 F.2d at 1014 ("Beamon and McMillin argue that their defense was prejudiced because they had a better chance of negotiating a favorable resolution of the case before the time they were arrested. . . . Whether the prosecutor would have agreed to a lower sentence, or the court would have approved it, without the delay is speculation. For this reason, there is only the possibility of prejudice, and that is insufficient in the Sixth Amendment context").

b. Whether Asiegbu Must Show Particularized Prejudice

Asiegbu is not excused from demonstrating actual prejudice. At most one month of the delay between his indictment and arrest is attributable to an isolated instance of negligence in the government's otherwise diligent pursuit of Asiegbu, i.e. the error in the initial diplomatic letter. This is insufficient to obviate the need to show particularized prejudice. Cf. Beamon, 992 F.2d at 1014 (defendants were required to show actual prejudice where government's failure to pursue them with due diligence resulted in delays of seventeen and twenty months); compare Doggett, 505 U.S. at 657-58 (holding that an 81/2 year lag between indictment and arrest, due largely to the government's negligence, led to a "presumption of prejudice, albeit unspecified, [that] is neither extenuated . . . nor persuasively rebutted").

c. Whether Asiegbu Has Shown Sufficient Prejudice

Asiegbu was not incarcerated during the period between his indictment and arrest; because he was unaware of the indictment, he did not suffer anxiety and concern. Thus, to show prejudice, he must demonstrate that his ability to mount a defense was impaired. Asiegbu does not contend that he has lost access to witnesses or evidence as a result of the delay. Rather, he asserts that he was prejudiced because, during the period between his indictment and arrest, he settled a civil case filed by the Federal Trade Commission ("FTC") against him that was based on the same facts as this case.*fn28 In the settlement, Asiegbu gave up his claim to three parcels of real property that Wilson Okike and his family also claimed.*fn29 Asiegbu had sued Okike, seeking unpaid compensation from the telemarketing businesses, and filed a lis pendens against the properties in connection with the suit.*fn30 The settlement allowed the FTC to sell the properties to compensate victims of the telemarketing fraud. Asiegbu contends that had he been aware of the indictment, he "would have recognized the need to conserve his resources to defend himself against the criminal charges, and would not have surrendered his claim to the real property."*fn31

He does not specify how access to the additional funds would have improved his defense.

Asiegbu has not shown concrete prejudice to his defense as a result of his loss of his claim to the property. Indeed, the prejudice he claims is speculative. Without adducing evidence, he asks the court to speculate that he would not have settled the FTC's lawsuit if he had known of the indictment; that he would have prevailed in the suit; and that this would have benefitted his defense. Any potential prejudice arising from Asiegbu's loss of his claim to the properties, moreover, is not related to the delay. Asiegbu might have lost the suit and his claim to the properties even had he been arrested shortly after his indictment.

At the hearing on the motion, Asiegbu argued that he was prejudiced by the settlement for a different reason. Specifically, he pointed to a declaration the FTC obtained from him in connection with the settlement. In the declaration, Asiegbu admitted to working for the lottery business and conceded that he knew the business's activities were illegal.*fn32 The FTC submitted the declaration in support its motion for summary judgment against Okike.*fn33 FTC attorney Eleanor Durham testified at the hearing that at the time the FTC obtained the declaration, she was aware that a criminal investigation of the lottery companies was ongoing. She also testified that the primary purpose of the declaration was to confirm that Asiegbu had no assets which could be used to provide restitution for victims of the lottery scheme. Durham testified that to her knowledge, the FTC did not inform Asiegbu of the criminal investigation. Asiegbu asserted that, had the FTC informed him of the investigation, he would not have executed a potentially incriminating declaration in connection with the settlement.

As is evident from this description of Asiegbu's argument, the source of his claimed prejudice is not the prosecution's delay in securing his arrest following indictment, but the FTC's failure to advise him of the investigation. Outside the speedy trial context, courts have addressed the propriety of parallel civil and criminal proceedings by different arms of the government. Generally, parallel civil and criminal proceedings examining the same conduct are permissible, and simultaneous progression of both proceedings is considered to be in the public interest. See United States v. Kordel, 397 U.S. 1, 11 (1970) ("It would stultify enforcement of federal law to require a governmental agency . . . invariably to choose either to forgo recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a criminal trial"). For this reason, "[t]he prosecution may use evidence obtained in a civil proceeding in a subsequent criminal action unless the defendant shows that to do so would violate his constitutional rights or depart from the proper administration of criminal justice." United States v. Unruh,855 F.2d 1363, 1374 (9th Cir. 1987) (citing Kordel,397 U.S. at 12-13); see also Securities and Exchange Commission v. Dresser Industries, Inc.,628 F.2d 1368, 1377 (D.C. Cir. 1980) ("The SEC cannot always wait for Justice to complete the criminal proceedings if it is to obtain the necessary prompt civil remedy; neither can Justice always await the conclusion of the civil proceeding without endangering its criminal case. Thus we should not block parallel investigations by these agencies in the absence of 'special circumstances' in which the nature of the proceedings demonstrably prejudices substantial rights of the investigated party or of the government"); United States v. Scrushy, 366 F.Supp.2d 1134, 1139 (N.D. Ala. 2005) (the "prosecution may use evidence from a civil action in a subsequent criminal proceeding unless it would violate the defendant's constitutional rights 'or depart from the proper administration of criminal justice,'" citing United States v. Teyibo,877 F.Supp. 846, 855-56 (S.D.N.Y. 1995)).

In Kordel, the Supreme Court identified the type of circumstances that would support a finding that a defendant's due process rights had been violated due to parallel criminal and civil proceedings. These included cases in which (1) the government pursued a civil action "solely to obtain evidence for a criminal prosecution"; (2) the government "failed to advise the defendant during the civil proceeding that it contemplate[d] his criminal prosecution"; (3) "the defendant [wa]s without counsel"; (4) the defendant "reasonably fear[ed] prejudice from pretrial publicity or other unfair injury"; or (5) "other special circumstances suggest that the criminal prosecution is unconstitutional or improper." Kordel,397 U.S. at 11-12; see also Teyibo, 877 F.Supp. at 846-47 (analyzing the Kordel factors to determine whether the use of civil discovery in a criminal case warranted suppression of evidence and dismissal of the indictment).

Of the circumstances identified in Kordel, only the government's "fail[ure] to advise the defendant during the civil proceeding that it contemplate[d] his criminal prosecution" is applicable to Asiegbu's situation on the present record. The Ninth Circuit has recently clarified, however, that suppression of evidence or dismissal of an indictment due the failure to disclose a concurrent or possible criminal investigation is not appropriate absent evidence of "trickery or deliberate misleading" by the government. See United States v. Stringer, 535 F.3d 929, 941 (9th Cir. 2008); see also id. at 940 ("A government official must not affirmatively mislead the subject of parallel civil and criminal investigations into believing that the investigation is exclusively civil in nature and will not lead to criminal charges. However, we have consistently held that the failure of an IRS agent . . . to warn a taxpayer that an audit may have potential criminal ramifications does not render the search unreasonable. . . . Almost every [ ] circuit has denied suppression, even when government agents did not disclose the possibility or existence of a criminal investigation, so long as they made no affirmative misrepresentations. . . . We applied virtually the same standard in Robson, where we held that suppression was not appropriate in the absence of affirmative misrepresentations. [United States v. Robson] 477 F.2d [13,] 17-18 (9th Cir. 1973)" (other citations and internal quotation marks omitted)).

There is no evidence here that the SEC affirmatively mislead Asiegbu to believe that the lottery businesses were not the subject of the criminal investigation. Thus, on the present record, the SEC's activities, on their own, would not support dismissal of the indictment on due process grounds.*fn34

The question for the court, then, is whether the SEC's failure to notify Asiegbu of the criminal investigation before he participated in settlement of the civil action constitutes sufficient prejudice to support dismissal on speedy trial grounds, despite the fact that it would be insufficient to support dismissal on due process grounds. The court concludes that it does not. The Ninth Circuit in Stringer indicated that parallel civil and criminal proceedings are both permissible and desirable. See 535 F.3d at 937 ("Effective enforcement of the securities laws requires that the SEC and [the Department of] Justice be able to investigate possible violations simultaneously," quoting SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1377 (D.C. Cir. 1980) (en banc)); see also Kordel, 397 U.S. at 11 (""It would stultify enforcement of federal law to require a governmental agency . . . invariably to choose either to forgo recommendation of a criminal prosecution once it seeks civil relief"). If otherwise permissible conduct in a civil case could lead to dismissal of a criminal prosecution on speedy trial grounds, this policy would be frustrated. Agencies like the FTC might curtail civil proceedings out of concern that otherwise permissible investigatory and litigation activity would later give rise to a claim of prejudice under the Speedy Trial Act.

Moreover, any prejudice to Asiegbu's from his declaration was not "caused by the delay that triggered the Barker inquiry," Gregory, 322 F.3d at 1163, but by the fact that the FTC did not advise him of the criminal investigation. Any "prejudice that may have occurred before the trial date but [that is] unrelated to the fact of the delay itself" is not a factor in the speedy trial analysis. See id. This is particularly true since appropriate remedies for abusive use of parallel proceedings are available outside the speedy trial context.

Asiegbu's prejudice claim is further undermined by the fact that, in 2000, he stated in a filing related to his claim against Okike that he was aware the actions of the lottery business in which he participated were illegal.*fn35 The fact that Asiegbu made this admission in 2000, before the indictment was filed, undercuts his claim that he would not have made incriminating statements in the SEC action but for the delay between his indictment and arrest.

5. Balancing the Factors

Although the nearly three year period that elapsed between Asiegbu's indictment and arrest is sufficient to trigger a speedy trial analysis, the delay was necessary and has not concretely prejudiced Asiegbu. To secure Asiegbu's arrest, the government was required to engage in a lengthy extradition process with Canadian authorities. Aside from an error in a diplomatic letter that delayed extradition by one month, there is no evidence that the government acted negligently. The government initiated the extradition process soon after Asiegbu's indictment and acted diligently while its extradition request was pending. Asiegbu's failure to assert his speedy trial rights during this period does not weigh against him, as he was unaware that he was under indictment. He has not demonstrated that the delay resulted in any actual impairment of his defense, however. Consequently, on balance, the court concludes that the delay between Asiegbu's indictment and arrest did not violate his speedy trial rights. See Williams, 782 F.2d at 1465-66 (9th Cir. 1985) (39 month delay with no government negligence and minimal showing of prejudice did not violate defendant's speedy trial rights).

III. CONCLUSION

For the reasons stated, Asiegbu's motion to dismiss the indictment is denied.


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