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United States v. Alahmedalabdaloklah

United States District Court, D. Arizona

July 26, 2017

United States of America, Plaintiff,
v.
Ahmed Alahmedalabdaloklah, Defendant.

          ORDER

          Neil V. Wake Senior United States District Judge.

         Before the Court is Defendant's Motion to Dismiss the Superseding Indictment Due to Violation of the Sixth Amendment Right to a Speedy Trial, or, Alternatively, to Dismiss Counts 5 and 6 Under the Speedy Trial Act (Doc. 213).

         I. OVERVIEW

         Defendant was arrested by Turkish authorities on May 18, 2011, and surrendered to the United States on August 27, 2014. Trial is set for October 3, 2017. Defendant contends that his Sixth Amendment right to a speedy trial was violated by the Government's intentional delay in obtaining his extradition. Defendant also contends that, under the Speedy Trial Act, Counts Five and Six of the Second Superseding Indictment must be dismissed with prejudice because the Government did not obtain an indictment against him within thirty days after his arrest by Turkish authorities.

         This case involves two extradition requests. The first request was presented to Turkey on June 21, 2011, and based on a criminal complaint with two charges, which was filed on May 10, 2011. The second request was presented to Turkey on November 2, 2012, and based on a grand jury indictment with four different charges, which was returned on June 28, 2012. Defendant's theory is the Government made a strategic decision to file the second extradition request for the purpose of delaying processing of the first request because it did not have sufficient evidence to obtain an indictment on the two charges in the criminal complaint and it would not be able to bring different charges after Defendant was extradited. The Government contends that Turkish authorities said the second request would be considered by the Turkish courts separately from the first request, for which judicial review had been completed and executive decision for implementation was pending. It appears that the two requests were decided separately by the Turkish courts, but the executive decision to implement the judicial determinations was made for both extradition requests at the same time. It is not apparent, however, that the second request delayed the executive decision.

         After Defendant was surrendered to the United States on August 27, 2014, trial continuances have been granted only with his consent. The Motion to Dismiss does not argue that any delay after August 27, 2014, is a violation of Defendant's rights, but rather argues that the Government's delay in producing exculpatory evidence demonstrates an intentional strategy of delay and necessitated the trial continuances.

         II. DEFENDANT'S EVIDENTIARY OBJECTIONS

         The Government's response includes the Declaration of Jeffrey M. Olson, an Associate Director with the Office of International Affairs in the Criminal Division of the United States Department of Justice. (Doc. 268-1.) Defendant objects to paragraphs 14- 32 of the Olson Declaration as inadmissible under Rules 602 and 802 of the Federal Rules of Evidence because, Defendant contends, those paragraphs are not based on personal knowledge and include inadmissible hearsay.[1]

         Although Rule 104(a) of the Federal Rules of Evidence provides that a court is not bound by evidence rules in deciding certain preliminary questions, the parties have not cited any authority expressly deciding whether Rule 104(a) applies in the present circumstances. Nevertheless, a declaration or affidavit is relevant only to the extent it is reliable, and the Federal Rules of Evidence provide guidance for assessing the reliability of the Olson Declaration.

         The Olson Declaration, made under penalty of perjury, describes Olson's employment history with and responsibilities for the Office of International Affairs. It declares that in 2013 Olson began overseeing matters in Turkey, in 2013 and 2014 he had in-person communications with his Turkish counterparts regarding Defendant, and he supervised others responsible for the day-to-day communications regarding this case. It further declares that Olson reviewed the file regarding Defendant's extradition.

         Paragraphs 15, 17, 21, 22, and 25 of the Olson Declaration declare facts consistent with those asserted by Defendant and are therefore undisputed. Paragraphs 14, 16, 18- 20, 23-24, and 26-31 declare facts based on Olson's personal knowledge or his review of the Office of International Affairs' file for Defendant. Information from the file is not considered as proving the truth of the information in the records, but rather as showing the basis for Olson's conclusion in paragraph 32, which is:

In sum, the United States remained in constant contact with Turkish authorities during the relevant period and took all reasonable steps possible to speed [Defendant's] extradition. In my opinion, the extradition occurred as expeditiously as possible given the United States' relations with Turkey and the applicable Turkish process.

(Doc. 268-1 at 11.)

         Defendant's evidentiary objections to paragraphs 14-32 of the Olson Declaration are therefore overruled.

         III. FACTUAL BACKGROUND

         A. Defendant's Arrest by Turkish Authorities

         On May 10, 2011, the United States filed a sealed criminal complaint against Defendant, and the Court issued an arrest warrant. On May 12, 2011, Interpol Washington disseminated a request to locate Defendant and notify United States authorities to enable them to seek Defendant's arrest and extradition. On May 16, 2011, United States authorities learned that Defendant would be traveling from China to Turkey on a flight that departed China on May 17, 2011. On May 16, 2011, the Office of International Affairs transmitted a request for Defendant's provisional arrest to the Department of State, which submitted the request to the United States Embassy in Ankara. On May 17, 2011, the United States Embassy in Ankara presented the provisional arrest request to the Turkish government via diplomatic note. On May 18, 2011, Turkish authorities arrested Defendant at the Istanbul Ataturk Airport after he disembarked from a flight from China. He was transferred to the Office of the State Prosecutor. On May 20, 2011, Defendant was ordered detained by the Barkiköy 11th Lower Criminal Court. On May 23, 2011, through Turkish counsel, Defendant appealed the detention order. On May 27, 2011, the appeal was denied.

         B. Extradition from Turkey Generally

         The process for submitting extradition requests involves the local United States Attorney's Office, the Office of International Affairs in the Criminal Division of the Department of Justice, the United States Department of State, the United States Embassy in Ankara, Turkey, and the Department of Justice's National Security Division. The process requires preparation, review, and translation of materials that are sent by the Department of State to the United States Embassy in Ankara, which presents the extradition package and diplomatic note requesting extradition to the Turkish government.

         Generally, an extradition request is initially routed through the Turkish Ministry of Justice, which serves as the point of contact for the Office of International Affairs and coordinates with other Turkish government authorities regarding the request. If a defendant opposes extradition, the extradition request is reviewed by a lower level court and an appellate court. If the courts find the defendant eligible for extradition, the judicial decision is submitted for implementation to the Council of Ministers, which has final authority over extradition requests under the Turkish Penal Code.

         C. The First Extradition Request

         On June 21, 2011, the United States Embassy in Ankara presented its first extradition request to the Turkish government via diplomatic note. Defendant challenged his extradition in the Turkish courts. On July 29, 2011, after an evidentiary hearing over several days, the Barkiköy 8th Aggravated Felony Court found Defendant eligible for extradition. Defendant then appealed to the Supreme Court 9th Criminal Department. On November 1, 2011, the Supreme Court dismissed the appeal. On March 6, 2012, Defendant's petition for reconsideration of the Supreme Court's decision was denied. On August 17, 2012, the first extradition request was submitted to the Council of Ministers for implementation.

         On September 24, 2012, Defendant was notified by the Ministry of Justice that the decision of the Council of Ministers was pending for implementation of the decision for Defendant's eligibility for extradition. In response to Defendant's inquiries regarding the status of his extradition, he was notified by the Ministry of Justice ...


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