between his an indictment and he's arrested yawners although it is somewhat out of order i would first like to clarify an issue regarding defendant alexander there was a comment made by mr alexander's trial attorney stating that mr alexander was informed at the time he was arrested which was in december two thousand and six that he would be prosecuted that he would be prosecuted in the united states this is highly unlikely because at the time that he was arrested no decision had been made whether the case would be brought in the united states or not stated that staff surgeon a bla winter or spring of two thousand and seven and when he came to present the case to the u s attorney's office in los angeles this was after the march two thousand and seven return hearing where the defendants were supposed to appear in canada blank clearly stated that he did not give a copy of the indictment to the defendant and it was highly unlikely that any of his staff had done so and so at most the defendant may have been informed that that chart that the matter might be prosecuted in the united states but there was actually no no decision and regards to that matter and since there was such a long delay between the time that he was and indicted and his ultimate arrest at a time of almost five years the defendant could easily have been confused as to whether any charges would be brought against him or that they would actually  in the us because he was a minor player in this conspiracy and the us could easily have decided i was not worth the trouble to prosecute him so i ask about prejudice reasonably diligent matter so there was a presumption of prejudice and just by either by the passage of time three of the three of the witnesses had died said the witness is the victim's right i'm sorry we have  and could have had a chance to cross examine them if you wanted to and it guards do you know whether they really had suffered these damages but the main point is that while they would have been able to make the proof bring the fulfill their burden of proof with respect to those victims again i'm not sure how that that hurts your client well i think the me point is that there is a presumption of prejudice after one year and the government was not reasonably diligent and therefore the presumption of prejudice kicked in and this was all together almost five years jeff let me ask you about the presumption of presence in this case as i understand it your evidence so if that's the case if he's fighting extradition and that slows down the process and he has every right to do that how do you show prejudice about that fact to be a slow extradition when your client was asserting that he did not want to be extradited and was actually fighting extradition well it was actually the time period in question is from the indictment to his ultimate arrest not after after his arrest the challenge sex addiction he contributed to sixteen months of the delay so what the as you know the balancing test that we're looking at you know prejudice is one of the factors and so i'm just trying to figure out if he contributed to sixteen months and again there is no question and i think the government concedes that this was more delay than they would ordinarily you know like or the it was longer than the normal but i think there are going under the balancing test after taking everything to account there was no violation of the speedy trial well i think there are there are cases that say that it's irrelevant you know what happened of time that occurred between the indictments and the point where he was arrested and you know after he was arrested there were actually dishing proceedings and  process accounted for much of the delay or good part of the delay so i guess i'm trying to figure out what's your best argument for why i would hold th government here accountable for that well part seems to diminish that the part of the u s government well that actually i mean you know there's a joint venture doctrine but that's i'm submitting on that know that was discussed in the brace but basically canadian delay actually is relevant to the issue of prejudice it's a separate issue as to who is responsible for the delay for example if a if there is a long delay before trial and witnesses die that could prejudice the defendant and you can say that the government was responsible for the death of the witnesses and yet the fact that that occurred compounded the prejudice to the defendant and in this case the u s delayed the matter and canada delayed the matter and the u s delay in association with canadian delay i mean because there was also canadian delay and u s delay it prejudiced the defendant even more in terms of that the amount of time that occurred it increased the presumption of prejudice because there was almost a five year delay so it's important to the issue of prejudice no matter who was you know morning your honour's may please the court carry on you know on behalf of the united states i'd like to address defendant's clearly unsupported joint venture argument by which he seeks to conjure up an almost five year post indictment delay the joint venture argument quite quickly your honour's fail factually and legally there is absolutely nothing in the record to show that the united states government at its highest levels was engaged in a joint venture with justice canada in terms of his extradition process in fact the record shows it was an incredibly painstaking and difficult process and complaints were lodged at policy levels in general about the length of time it took canada to process extraditions in general moreover defendant just seemed to suggest that canadian delay even without the joint venture and  about on this delay i mean looks like you're arguing that the government diligently earth even when the foreign government that the government here should not be held accountable for what the government that you know i think here the foreign government was due to count up the months it's like over thirty it's like thirty to thirty six months accountable to the canadian government of the delay right thirty two points let's say it's been eight years you'd still stand on that that's correct your honor if the united states government is not the one responsible for the delay it solely a result of the canadian process it seems impermissible to then import that canadian delay into the federal constitutional analysis it's a federal right born out of the united states of america where the canadian delay does not come into it because the united states government didn't cause it you know presumably this court could figure out you know at some point twenty years down the line that maybe that canadian delay would have to be held against  united states government but i would i would argue not even at that point because that would actually reward and incentivize these sorts of cross border transactions it has to be defendants operate outside the united states of america so these defendants were in canada they were engaging in cross border crimes in the united states targeting elderly united states citizens and so if they know they're in a regime that has a painstakingly slow extradition process  and incentivizes them to commit the crime across our borders we're going to have more crime with the extradition well it would make it harder first of all for the united states to prosecute it just because they want to go into the crime business to go to the employment also i think that this isn't really a question of government employment i think the record shows here in reference to that nine point six month period of time which is probably the most the period of time we really should be looking at because  the district court found that there were twenty six point four months attributable to united states delay sixteen point eight by my count is dealing with the redrafting and the resounding of the record of the case back and forth between a u s a o i a and justice canada there is a lot of testimony on the record that there was nothing unusual or a typical about that and moreover that the work product of the usa was in no way substandard and that was testified to by both director olsen who was head of the canadian team as well as staff sergeant blank of the mounties so if you want to focus your honour's on the nine point six period of time which the district court held was still reflective of reasonable diligence the usa was cand with the court she showed candor and credibility with the district court and the district court found her credible and in fact made a finding of reasonable diligence which underdog at this court has to give considerable deference to and i quote those term she testified the first two months she had a busy calendar so after indictment the first two months she did not immediately start working on the record of the case she explained that there was no paralegal to assist her and that her f b i agent was not organized easier to convict the defendant at trial in the united states beyond a reasonable doubt than it was to get them extradited from canada that's york city twenty she testified that preparing this likely case was akin to preparing for trial e r two hundred twenty three  wondering having worked in that office and worked in other u s attorneys offices is there any system in place to track like a tickler system where after ninety days the international court near one would check in with a usa and say you know where are we or the just up to i i actually help handle incoming extraditions for the office not outgoing extraditions and there is frequent contact between but it seems to me that that if someone were on  then we probably mean it probably would have been nine point six months maybe it would been three months maybe even six months but some of that was frankly i see admitted in her testimony she just didn't get around to it so i'm just wondering we're dealing with people's rights in other countries are their process if they're not in place yet pretty simple process spreadsheet with a little whistle on your out whatever mind you ninety days where are we on this thing is that going for something that could happen oh most definitely your honor and i assure you that there is communication at least on my side of it which is with incoming executions from foreign countries there is a lot of follow up in communication but i would also remind the court that if this were just a united states prosecution and it didn't have this cross border element the nine point six months of delay here wouldn't even trigger the barker and alice under parker vs window because it's not even a year so i do think that's a fact that needs well but that nine months is not the only nine months contributor to the government i mean the government here i totaled up more to twenty twenty six months so well that is correct but i think that what i'm trying to get to is out of that twenty six point four months i would urge this court to find that at least the sixteen point eight that was the going back and forth once the formal extradition requests have been submitted so i it is then a very typical process that ensues and the record supports that and there is nothing to suggest that during that period of time there was anything but reasonable diligence so then the question is was there in bengal gentz should this court find that the district court was wrong and that there was negligence with that nine point six month period of time even if this court determines that for some reason  was somehow negligent in not preparing the formal extradition request before those nine point six months the defendant still doesn't get to retain the presumption of prejudice throughout the barker analysis the supreme court made clear in barker that the negligence presumption of prejudice question is analyzed on a spectrum so if there is governmental negligence the question of what whether or not the presumption of prejudice remains to the tail end of the barker analysis depends on the length of time gregory and manning have clearly shown that the type of delay here just over two years if you're looking at the twenty six point four and under a year if you're looking at the one point six is not sufficient to remove from defendant his burd actual prejudice that you are you a agree i guess don't you that the government the defendant here you know has no ability to expedite extradition during this period particularly if he's unaware of the  indictment if that were the case but i quarrel with a couple of the underlying propositions there first of all you can always make yourself amenable to the united states jurisdiction by appearing which twelve of did so what happened was they were arrested and the canadian are you talking post indictment post indictment so post post us indictment they are then arrested in canada and  they had their property seized by the canadians throughout the investigation the united states requested that property through m last so staff sergeant le blanc testified that they were repeatedly meeting with the arrestees and that staff sergeant was blunt repeatedly instructed his detectives working under him to tell these defendants that most likely they were going to be proceedings in the united states but they should av themselves of the united states bring their bring themselves to the united states essentially in part and he testified to speed up the extradition process and twelve excuse me thirteen of the twenty one other knew of the american charges before their arrest and made themselves available and i would argue the circumstantial evidence here coupled with that custom and practice that staff sergeant was blunt testified to which under federal rule of evidence for  admissible as proof of the fact that actually happen this defendant most likely knew that this had been handed over to the united states and there was going to the an indictment and then after there was the arrest he was being informed that the property wasn't being returned because it was being sent to nine states so did you know most likely so i think it really needs to be emphasized that there was a delay of over a year and a half before the first draft of the indictment we quest was even submitted to the canadian government washington and in regards to extradition requests she had a tremendous amount of experience and yet she said she really didn't have a good excuse for the nine point six months of delay just to get it to the to the  work and then she took another four months just to work on the initial draft so it was a year and a half before the canadians even received it and both are also and lindsey knew that the canadians are picky and this could be  lengthy process so there really is no excuse to spend a year and a half just to get the and their initial draft to them and even after left point each time that their requests came back it took one to three months  visions and it's not a matter of just a matter of the amount of time but it's whether this could have been prevented and actually it seems that they could have certainly put the first draft in you know in much m slee and and in regards to prejudice the it was actually almost five years and the long of a time that the defendant is that pending there was a mention in the brief that he was suffering most emotional distress or he was stressed because he didn't know what was going to happen to him and cases do go stale at that point so there was a strong presumption