UNITED STATES OF AMERICA v. OKECHUKWU JOSIAH ODUNNA (2025)

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT

As noted by the United States Supreme Court over fifty years ago, “the right to a speedy trial is a more vague concept than other procedural rights” because it is “impossible to determine with precision when the right has been denied.” Barker v. Wingo, 407 U.S. 514, 521 (1972). But while the right possesses an “amorphous quality,” the fact remains that “dismissal of the indictment when the right has been deprived ․ is the only possible remedy.” Id. at 522. Such a remedy, while certainly severe, is nonetheless appropriate to “guard against inordinate delay between public charge and trial.” Id. at 537 (White, J., concurring).

This case illustrates the need to preserve the fundamental right to a speedy trial in the face of government inaction. Well over a decade ago, Defendant Okechukwu Josiah Odunna was charged with a bevy of financial crimes. Given the extensive delay in bringing Defendant to justice, he now seeks dismissal of the indictment for violation of his constitutional right to a speedy trial. With the benefit of an evidentiary hearing, [ECF No. 261], and having reviewed Defendant's Amended Motion to Dismiss Indictment Based on Post-Indictment Delay for Violation of His Constitutional Right to a Speedy Trial (“Motion”), [ECF No. 252], the Government's Response in Opposition (“Response”), [ECF No. 255], Defendant's Reply (“Reply”), [ECF No. 259], the record, and being otherwise fully advised, it is hereby

ORDERED AND ADJUDGED that the Motion is GRANTED as set forth herein.

BACKGROUND

On May 15, 2014, Defendant was charged with one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and four counts of wire fraud affecting a financial institution, in violation of 18 U.S.C. §§ 1343 and 2. See Indictment, [ECF No. 3]. The indictment charged Defendant alongside three codefendants: Karl Oreste, Marie Lucie Tondreau, and Kelly Augustin. Id. The charges arose from a scheme involving a series of fraudulent loan applications for residential mortgages that were submitted between 2005 and 2008. Id.

On May 19, 2014, the FBI attempted to arrest Defendant at an address associated with him in Tampa, but Defendant was not there. Response at 5. The agents spoke to Defendant's ex-wife who was residing at the address, and she notified them that she believed Defendant had moved to Nigeria three to four years prior and may be working for the Nigerian Lottery Board. Id. at 5–6. Defendant's ex-wife provided the FBI with two emails and one phone number, but she did not know whether they were still valid. Id.

Indeed, Defendant moved from Florida to Nigeria in 2011. Mot. at 2. There, Defendant obtained a federal job working for the National Lottery Regulatory Commission in the capital city of Abuja, which he held from 2011 to 2021. Id. at 12. Defendant traveled between the United States and Nigeria from 2011 to 2013. Id. In March 2013, the year Defendant's green card was set to expire, Defendant left the United States for the final time by flying to Nigeria via Germany. Id. at 2; Response at 6. However, while living in Nigeria, Defendant continued to travel freely to and from Europe and lived openly under his legal name. Mot. at 2–3.

On June 30, 2014, a month after FBI agents spoke to Defendant's ex-wife, Defendant was transferred to fugitive status alongside Codefendant Augustin. Mot. at 2. Codefendants Oreste and Tondreau were promptly arrested and prosecuted. Id.; [ECF Nos. 11, 14]. On July 16, 2014, Codefendant Oreste pleaded guilty and was later sentenced to 100 months’ imprisonment. Plea Agreement, [ECF No. 45]; Transcript of Sentencing, [ECF No. 186]. And on December 16, 2014, a jury returned a guilty verdict for Codefendant Tondreau, who was ultimately sentenced to 63 months’ imprisonment. Jury Verdict, [ECF No. 104]; Transcript of Sentencing, [ECF No. 181].

Then, things went quiet. The record is silent on what efforts, if any, the FBI and the U.S. Attorney's Office took to locate, extradite, and prosecute Defendant between 2014 and 2021. The Government's Response notes that on January 21, 2015, soon after Codefendant Tondreau's trial, Defendant's case was reassigned to a different FBI case agent. Response at 7. The case was reassigned again on January 4, 2016. Id. at 7–8. And the case was reassigned a third time on July 12, 2017, to the case agent who has remained on the case to date. Id. at 8. The Government's Response adds that, since at least June 2018, the FBI annually contacted the Miami U.S. Attorney's Office to ask if the office would seek extradition of Defendant if he were apprehended. Id. The U.S. Attorney's Office consistently responded that it would, without saying or doing anything more. Id.

The pursuit of Defendant ramped up in 2021 after the Government heard from Nigerian authorities. On April 16, 2021, Nigeria's Independent Corrupt Practices and Other Related Offences Commission (“ICPC”) issued a request to the FBI's Legal Attaché in Nigeria for information about Defendant, his prior disbarment in Florida, and any criminal charges against him. Response at 8. Then, on April 19, 2021, the Legal Attaché notified the FBI case agent of a “strong possibility” that Defendant had been located in Nigeria. Id. On April 20, 2021, the FBI case agent told the Assistant Legal Attaché directly that the U.S. Attorney's Office would seek Defendant's extradition if his identity were confirmed. Id.

This outreach from Nigeria ultimately kickstarted a more aggressive effort by the Government to locate and extradite Defendant. In May 2021, the ICPC questioned Defendant in Nigeria about his activities in Florida after receiving an anonymous tip. Response at 9. In July 2021, the FBI submitted a Red Notice request to Interpol. Id. The FBI received a tip from a Nigerian resident in October 2021, which indicated that Defendant moved to Nigeria in 2011 and started working for the Nigerian government. Id. at 9–10. Interpol issued a Wanted Person Diffusion Notice—an alternative to a Red Notice—on March 11, 2022. Id. at 10. In October–November 2022, the Miami case agent corresponded with the Assistant Legal Attaché to seek updates on Defendant's extradition. Response at 10. The case agent discovered that the Assistant Legal Attaché had been replaced and received new contact information. Id. The case agent sent the Legal Attaché a request seeking assistance with apprehending Defendant in August 2023. Id. On October 19, 2023, the case agent requested another update on Defendant's extradition and learned that the Assistant Legal Attaché had again been replaced. Id. The case agent subsequently requested additional updates from the new Assistant Legal Attaché on December 6, 2023 and February 4, 2024. Id.

By July–August 2024, the Office of the Legal Attaché sought assistance in apprehending Defendant from Nigerian authorities and Interpol's representative in Nigeria. Response at 11. Finally, on September 24, 2024, Nigerian authorities informed the Legal Attaché that Defendant had been arrested and detained in Nigerian prison. Id. Defendant waived extradition on December 12, 2024, and the FBI transported him back to the United States on March 5, 2025. Id.

On March 7, 2025, Defendant entered his initial appearance in the Southern District of Florida. [ECF No. 213]. Judge Robert N. Scola, Jr. set Defendant's trial date for April 21, 2025. [ECF No. 219]. On April 1, 2025, Judge Scola granted Defendant's unopposed motion for a 90-day continuance of trial. [ECF No. 225]. And at Defendant's request, Judge Scola appointed new defense counsel on April 29, 2025. [ECF No. 230]. Judge Scola granted Defendant's second unopposed motion to continue trial on June 16, 2025. [ECF No. 232].

On September 30, 2025, Defendant moved to dismiss the indictment for post-indictment delay pursuant to the Sixth Amendment and Federal Rule of Criminal Procedure 48(b), pointing to a delay of over 10 years since his 2014 indictment for conduct that occurred years earlier. [ECF No. 242]. On October 3, 2025, Defendant's case was reassigned to this Court following Judge Scola's retirement. [ECF No. 244]. Defendant then filed his Amended Motion on October 8, 2025. [ECF No. 252]. On November 3, 2025, the Court held an evidentiary hearing on the Motion. [ECF No. 261].

LEGAL STANDARD

In Barker v. Wingo, 407 U.S. 514 (1972), the United States Supreme Court adopted a four-factor balancing test to determine whether a Sixth Amendment violation of the right to a speedy trial has occurred. Id. at 530. Specifically, courts should assess the following factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his speedy trial right; and (4) the prejudice to the defendant. Id. at 530. “[T]hese factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” Id. at 533. As a threshold matter, a defendant must show that the length of the delay was presumptively prejudicial under the first factor to trigger the rest of the Barker analysis. United States v. Clark, 83 F.3d 1350, 1352 (11th Cir. 1996). Unless the first three factors weigh heavily against the government, a defendant must show “actual prejudice” under the fourth factor. See United States v. Dunn, 345 F.3d 1285, 1296 (11th Cir. 2003).

Federal Rule of Criminal Procedure 48(b) permits the dismissal of an indictment “if unnecessary delay occurs in: (1) presenting a charge to a grand jury; (2) filing an information against a defendant; or (3) bringing a defendant to trial.” Fed. R. Crim. P. 48(b). The rule “vests much discretion in the trial court, and dismissal is mandatory only if the defendant's constitutional rights have been violated.” United States v. Butler, 792 F.2d 1528, 1533 (11th Cir. 1986).

ANALYSIS

I. Barker Factors

The Court begins by addressing all four factors under Barker before turning to its analysis under Federal Rule of Criminal Procedure 48(b).

1. Length of the Delay

The first factor is “a double enquiry” where the court must decide whether “the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay” as to trigger analysis of the remaining three Barker factors. Doggett v. United States, 505 U.S. 647, 651–52 (1992) (citing Barker, 407 U.S. at 530–31). “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530.

“[B]ecause of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.” Id. at 530–31. The Eleventh Circuit has consistently held that “delays exceeding one year are generally found to be ‘presumptively prejudicial.’ ” Clark, 83 F.3d at 1352 (citation omitted); see also United States v. Ingram, 446 F.3d 1332, 1337 (11th Cir. 2006) (finding a two-year delay between indictment and trial sufficiently long to be considered presumptively prejudicial and trigger the rest of the Barker analysis). Here, the Government does not dispute that the post-indictment delay of over ten years substantially exceeds the one-year minimum and triggers the presumption of prejudice. See Response at 14. As such, this factor weighs in favor of Defendant, and the Court will proceed to analyzing the remaining Barker factors.

2. Reason for the Delay

Defendant maintains that the post-indictment delay in this case is attributable to the Government's negligence. Specifically, Defendant was living openly in Nigeria and the Government had ample opportunities to locate him with minimal diligence. See Mot. at 14. In response, the Government points to Defendant's evasive tactics, their lack of intelligence regarding Defendant's whereabouts, and the purported futility of pursuing Defendant's extradition from Nigeria. See Response at 15–16.

“To determine whether [a defendant's] right to a speedy trial has been violated the conduct of the government must be weighed against the conduct of the defendant.” United States v. Bagga, 782 F.2d 1541, 1543 (11th Cir. 1986) (citing Barker, 407 U.S. at 530). The Government “bears the burden of establishing valid reasons for the delay.” United States v. Villarreal, 613 F.3d 1344, 1351 (11th Cir. 2010) (citing Ingram, 446 F.3d at 1337). “[A] defendant who intentionally evades the Government's efforts to bring him to trial is culpable in causing the delay.” Ingram, 446 F.3d at 1337. But when the government's negligence is at issue, “it should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Barker, 407 U.S. at 531. “The longer the delay ․ the heavier the government's negligence must be weighted.” United States v. Machado, 886 F.3d 1070, 1080 (11th Cir. 2018) (citing Doggett, 505 U.S. at 657).

Here, the Government has failed to provide any basis for the extreme delay between indicting Defendant and bringing him to trial. Of particular concern is the seven-year period from 2014 to 2021, during which time the Government concedes it made no effort to locate and extradite Defendant. Instead, the Government points to Defendant's evasion of law enforcement beginning in 2007, during which time Defendant purportedly destroyed documents related to the scheme for which he was charged and ultimately fled the country. See Response at 14–15. But this activity took place well before Defendant was indicted in 2014—and thus fails to explain the Government's lack of diligence post-indictment. And the Government's focus on steps it took from 2021 onward, such as reaching out to the Legal Attaché and Interpol, fails to address its inactivity from 2014 to 2021. Id. at 18.

Despite conceding at the evidentiary hearing that the Government took no action for seven years after being advised of Defendant's possible whereabouts and employment in Nigeria, the Government maintains that it would have been futile to seek his extradition. In support of this position, the Government compares its efforts here to those taken Bagga, where the Eleventh Circuit held that the reason for delay did not weigh against the government because the government fulfilled its obligation to make a diligent, good-faith effort to locate the defendant. 782 F.3d at 1543 (explaining that while “Bagga's absence from the country did not relieve the government of its obligations to make good-faith efforts to have him returned ․ such efforts do not require the government to pursue futile legal gestures.”).

The government's efforts in Bagga, however, establish a level of diligence readily distinguishable from the inactivity here. There, the government searched for the defendant at multiple addresses; sought information from local authorities; pursued a lead regarding the defendant's potential location in Detroit; and took affirmative steps to apprehend the defendant if he returned to the United States. Id. at 1543–44. This constituted a diligent, good faith effort to locate the defendant—even though the government did not place a notice on his passport or seek his extradition after receiving a tip that he was in India. Id. The Eleventh Circuit explained that “the extradition treaty with India ․ does not expressly cover a false declarations offense with which Bagga was charged. Thus, there was great doubt that this was an extraditable offense.” Id. at 1543. This doubt as to extradition—and the fact the government did not have an address for the defendant—led the Eleventh Circuit to conclude that the government could not be faulted for failing to check with the Consulate and INS “on the off-chance that they might have knowledge of Bagga's exact address in India.” Id. at 1544.

Here, the Government's efforts between 2014 and 2021—or lack thereof—fall short of the level of diligence exhibited in Bagga. First, the FBI attempted to arrest Defendant at only one address; there is no evidence that the Government looked elsewhere or sought assistance in locating Defendant following this initial attempt. Second, the Government failed to pursue a critical lead. Defendant's ex-wife told the FBI that she believed Defendant was living in Nigeria and working for the Lottery Board. She also provided two emails and one phone number, albeit with a disclaimer that they may be dated. Nothing in the record indicates that the Government did anything to follow up on this lead, which was quite credible and actionable. Defendant did in fact live in Nigeria; he worked for the National Lottery Regulatory Commission; and he went by his legal name. In other words, this lead—had it been pursued—would have pointed the Government in the direction of Defendant.

This expectation of diligence under Barker is a common thread. In cases where the defendant's Sixth Amendment right to a speedy trial was not violated, the Eleventh Circuit has noted either some affirmative steps by the government to pursue the defendant or a valid explanation for the delay. See, e.g., United States v. Louis, 146 F.4th 1328, 1338 (11th Cir. 2025) (citing the practical difficulties of scheduling trials during the Covid-19 pandemic to justify the delay); Machado, 886 F.3d at 1080–81 (detailing law enforcement agent's consistent efforts to search for, monitor, and intercept the defendant for a period of years); United States v. Spaulding, 322 F. App'x 942, 946 (11th Cir. 2009) (finding that the government made a sufficiently diligent effort to locate defendant through surveillance, contacting law enforcement, interviewing witnesses, monitoring mail and telephone records, and attempting to lure defendant back to Florida). Here, the Government failed to diligently pursue Defendant for a period of seven years—over half of the total ten-plus-year post-indictment delay. This greatly exceeds the length of delay observed in other cases. See, e.g., Louis, 146 F.4th at 1333 (fourteen months); Machado, 886 F.3d at 1077 (over five years); Spaulding, 322 F. App'x at 945 (four years and eight months).

Because “[t]he longer the delay ․ the heavier the government's negligence must be weighted,” Machado, 886 F.3d at 1080, the circumstances here greatly favor Defendant when compared to other cases involving government negligence. In Clark, for example, the court explained that the 17-month post-indictment delay, during which police did not search for the defendant because they assumed the U.S. Marshal's office planned to arrest him, was the result of negligence and thus weighed against the government. 83 F.3d at 1352–53. And in Ingram, where the government failed to pursue the defendant for two years despite having enough information to find him, the Eleventh Circuit asserted that “[c]omparing this case to Clark, not only is the delay more weighty here; the Government's negligence in creating the delay is more egregious.” 446 F.3d at 1339. Here, the delay is even greater—and the Government's negligence even more egregious—than in both Clark and Ingram.

The Court is not persuaded by the Government's explanations as to why it failed to do more to locate and extradite Defendant. The Government asserts that it did not have a “specific address or location within Nigeria where Odunna might be found.” Response at 16. But the Government did know his name, his employment abroad, and the country where he was purportedly located. Nonetheless, it failed to take any steps to piece together the information it had in order to locate Defendant. And the Government's argument that it did not pursue extradition because it would have been futile is similarly unavailing. In making this argument, the Government relies entirely on the Declaration of Jeffrey M. Olson, Associate Director of the Office of International Affairs for the U.S. Department of Justice. The Olson Declaration asserts that “[f]rom 2014 through 2021, Nigeria only extradited a handful of fugitives to the United States, and in fact did not extradite anyone to the United States from 2014 through 2017.” Decl. at ¶ 15. Olson also notes “the process of requesting extradition from Nigeria is time-consuming, challenging, and almost always unsuccessful.” Id. The Court does not dispute that extradition from Nigeria can be challenging. But challenging is far from futile. And extradition was clearly possible if Nigeria did extradite some fugitives to the United States from 2017 to 2021. If there is one takeaway from the Olson Declaration, it is that Defendant's extradition was not a priority for the Government.

To be clear, the Court does not fault the Government for failing to successfully locate and extradite Defendant in less time. The problem is that—for seven years—the Government did not even try. Instead, the case bounced between three FBI case agents, and the U.S. Attorney's Office picked up yearly phone calls and said they would extradite Defendant if he were apprehended. From 2014 to 2021, that was it. Thus, this was not a “diligent good faith effort,” but rather an example of “findable negligence.” Compare Bagga, 782 F.3d at 1543, with Doggett, 505 U.S. at 653 (affirming district court's determination that the government was negligent in failing to pursue their assumption that the defendant was living abroad, which would have led them to the defendant within minutes). In fact, it appears that the Government only sprung into action in 2021 because Nigerian officials reached out to ask about Defendant's history—and informed the Government of the strong possibility that Defendant had been located.

In order to illustrate what would constitute a diligent, good-faith effort, the Court need not look any further than the Government's efforts in this case from 2021 to 2024. Even though it ultimately took three more years before Defendant was eventually apprehended, that delay was not caused by the Government's neglect. The record clearly establishes that the Government contacted Interpol and regularly checked in with the Legal Attaché in Nigeria about the status of Defendant's extradition. Defendant was not arrested immediately, due in large part to staffing changes at the Legal Attaché’s office. But the Government at least tried to remain on top of Defendant's case and its contacts in Nigeria. Had the Government pointed to efforts like these dating all the way back to 2014, this factor would weigh in favor of the Government. Because it cannot, this factor clearly weighs in favor of Defendant.

3. Defendant's Assertion of His Speedy Trial Right

The third factor looks at whether and when a defendant asserted his Sixth Amendment right to a speedy trial. “[A] defendant has some responsibility to assert a speedy trial claim.” Barker, 407 U.S. at 529. “A defendant's failure to assert his Sixth Amendment right to a speedy trial before the day of trial weighs heavily against the defendant.” United States v. Schlei, 122 F.3d 944, 988 (11th Cir. 1997) (citing United States v. Twitty, 107 F.3d 1482, 1490 (11th Cir. 1997)). In Barker, the Supreme Court rejected a rigid “demand-waiver” rule, where “a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded a trial.” Barker, 407 U.S. at 525. Instead, the Court embraced a more flexible approach where “the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.” Id. at 528.

In Doggett, the Supreme Court suggested that this factor would weigh against a defendant who knew about his indictment years before he was arrested. 505 U.S. at 653. However, the government bears the evidentiary burden of proving the defendant's knowledge of an indictment. See Barker, 407 U.S. at 529; see also United States v. Velazquez, 749 F.3d 161, 184 (3d Cir. 2014) (“Having identified knowledge of the indictment as the appropriate measure for the timely assertion of the speedy trial right, we turn to the evidence in the record, keeping in mind the government's burden to demonstrate [defendant's] knowledge.”). In Doggett, the government claimed that the defendant knew of his indictment years before he was arrested but presented no evidence challenging the testimony of the defendant's wife and mother, who testified that he did not know about it. 505 U.S. at 653. The Court concluded that “Doggett had won the evidentiary battle on this point.” Id.; see also Clark, 83 F.3d at 1352 (“The district court found that neither Clark nor his counsel knew of the federal indictment until the date of Clark's arrest.”). However, in United States v. Resnik, the court inferred that the defendant learned of his indictment years before his arrest, noting that he was charged alongside his nephew who was convicted and sentenced for crimes they committed together, was in regular communication with his family in this district, and did not return to the United States following his departure even though his immediate family lived here. No. 92-00394, 2014 WL 1463469, at *4 (S.D. Fla. Apr. 14, 2024).

The Government argues that “Odunna's alleged desire for a speedy trial is inconsistent with his initial obstruction, his continued presence in Nigeria, and his history of refusing to return to the United States.” Response at 19. But none of these facts establish Defendant's knowledge of the indictment, especially considering the “initial obstruction” took place before Defendant was even charged. And at the evidentiary hearing, the only post-indictment evidence of knowledge identified by the Government consisted of a 2021 tip from the Nigerian Independent Corrupt Practices and Other Related Offences Commission (“ICPC”). This tip, which stated that Defendant was evading prosecution and refusing to return to the United States, hardly proves Defendant's knowledge of the indictment.

The Government's Response also refers to a 2021 interview where the ICPC asked the Defendant “about the open-source articles alleging his involvement in fraud in Florida” to which Defendant “reportedly responded that ‘he was not convicted of any fraud and there was nothing to it and he eventually moved to Nigeria.’ ” Response at 9. Defendant points out that he had family in Nigeria, including his aging parents, and his green card expired in 2013—the same year he returned to Nigeria for good. Mot. at 2. These alternative explanations for Defendant's move to Nigeria and failure to return rebut any inference that Defendant had knowledge of the indictment merely because there were articles about the scheme, the indictment had been unsealed, and a tipster had claimed Defendant refused to travel back to the United States. Response at 9.

In support of Defendant's contention that he timely asserted his speedy trial right, Defendant highlights the fact that he waived extradition following his arrest in Nigeria. In Ingram, the defendant turned himself in and promptly asserted his right to a speedy trial once law enforcement contacted him. 446 F.3d at 1340. The court “fail[ed] to see merit in the Government's argument that, while Ingram did everything he should to assert his right to a speedy trial, this should not weigh heavily against the Government.” Id. Here, Defendant was arrested in September 2024 and elected to waive extradition in December 2024. Response at 11. While not quite as immediate, Defendant promptly waived extradition—especially given the logistical challenges inherent in extradition from Nigeria to the United States.

The Government's final argument that Defendant did not timely assert his speedy trial right is based on the two continuances of trial that Defendant sought following his initial appearance in the Southern District of Florida. These requests for a continuance, however, do not evidence Defendant's attempt to unduly delay his trial. Rather, Defendant sought continuances to gain time to obtain counsel, review voluminous records from nearly twenty years ago, and develop a legal strategy. In rejecting rigid demand-waiver rules where “[u]nless [defense counsel] demands a trial early and often, he is in danger of frustrating his client's right,” the Barker court was sympathetic to situations where “counsel is willing to tolerate some delay because he finds it reasonable and helpful in preparing his own case.” 407 U.S. at 527.

To be sure, this factor can weigh against a defendant who uses continuances to delay his trial. In United States v. Register, for example, the defendant sought four continuances over the 38-month period between his arrest and trial. 182 F.3d 820, 827 (11th Cir. 1999). But the circumstances here differ significantly from those in Register. Defendant initially appeared on March 7, 2025, [ECF No. 213], and trial was set for April 21, 2025, [ECF No. 219]. Defendant—represented by his original counsel—moved for a 90-day continuance on April 1, 2025, and his trial was reset for August 11, 2025. [ECF No. 225]. On April 19, 2025, Judge Scola appointed Defendant's current counsel, at Defendant's request. [ECF No. 230]. Then, Judge Scola granted a second continuance on June 6, 2025, which reset trial for November 3, 2025. [ECF No. 232]. Defendant asserted his speedy trial right by filing his Motion to Dismiss on September 30, 2025. [ECF No. 242].

When viewed in context, these facts do not paint a picture of a defendant seeking to unduly delay his trial. Upon initial appearance, Defendant was assigned a trial date just over one month away, on charges based on conduct that occurred nearly twenty years prior. It is reasonable that Defendant would need more time to digest the charges against him and prepare his defense, especially after obtaining new counsel. At the evidentiary hearing, Defendant's counsel underscored the magnitude of this case, which involves over 500,000 documents. Thus, the Court does not fault Defendant for obtaining two continuances, which were intended to provide both prior and present counsel more time to effectively understand the factual predicate for the charges and reconstruct a nearly two-decade-old timeline. This would therefore be a situation where counsel tolerates some delay—albeit a relatively minor one of about six months—before asserting a speedy trial violation. See Barker, 407 U.S. at 527. As such, this factor also weighs in favor of Defendant.

4. Prejudice to the Defendant

If the first “three [Barker] factors weigh heavily against the Government, the defendant need not show actual prejudice (the fourth factor) to succeed in showing a violation of his right to a speedy trial.” Ingram, 446 F.3d at 1336 (citing Doggett, 505 U.S. at 647). However, if the first three Barker factors do not weigh heavily against the government, the defendant “must demonstrate actual prejudice to succeed on his speedy trial claim.” Villarreal, 613 F.3d at 1355. “In order to prove actual prejudice, the accused must demonstrate one of the following: (1) oppressive pretrial incarceration, (2) anxiety and concern, or (3) possible impairment of his defense.” Spaulding, 322 F. App'x at 947 (citing Barker, 407 U.S. at 532).

Here, the Court finds that the first three Barker factors weigh heavily against the Government. Thus, no showing of actual prejudice is required, and the Court holds that Defendant's right to a speedy trial has been violated. But even if the Court were to conclude that the first three Barker factors do not weigh heavily against the Government, the result would be no different. That is because Defendant has shown actual prejudice due to the impairment of his defense. Barker, 407 U.S. at 532.

The Court in Barker noted that this interest is the “most serious ․ because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id. “If witnesses die or disappear during a delay, the prejudice is obvious.” Id. “There is also prejudice if defense witnesses are unable to recall accurately events of the distant past.” Id. However, “Barker explicitly recognized that impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony ‘can rarely be shown.’ ” Doggett, 505 U.S. at 655 (quoting Barker, 407 U.S. at 532).

The Government argues that Defendant's claims of prejudice are too generalized. Specifically, Defendant “does not explain what he would expect such witnesses to say ․ claims that records from his law firm have disappeared but he does not explain when or how the records were lost ․ [and] does not explain what the records are or why they would aid his defense.” Response at 21. But in Defendant's Reply and at the evidentiary hearing, counsel for Defendant elaborated on how the defense has specifically been impaired by the lengthy delay, emphasizing that the offense conduct at issue occurred between 2005 and 2008.

Defendant's counsel has been unable to identify and locate many witnesses, including former employees of Defendant's law firm who could testify about his practice and the real estate closings in question. Reply at 14. And those who have been located are unable to recall information that would be relevant to the defense. Id. Defendant also no longer has access to the records from his law firm, and his counsel has been unable to locate them. Id. at 15. Defendant closed his firm in 2009 and provided certain records to his counsel in a civil lawsuit from seventeen years ago. Id. But prior civil counsel has indicated that said records are no longer in her possession and have either been returned or destroyed since she was under no obligation to retain them. Id.

As Defendant concludes, with specificity, “[t]he defense's ability to reconstruct closing-room realities (who saw which HUD-1, sequence of signatures, lender call logs, payoff confirmations, wire instructions, ATIF communications, and trust-account reconciliations) is materially impaired.” Id.; cf. Spaulding, 322 F. App'x at 948 (“Spaulding's bare assertion of prejudice, without more, is insufficient to establish actual prejudice.”). The Court finds that Defendant has sufficiently shown actual prejudice, considering that nearly twenty years have elapsed since the closings in question that form the basis of Defendant's charges. When such a prolonged period passes, both people and papers can disappear, thereby impairing the defense.

In sum, all four Barker factors weigh in Defendant's favor. Accordingly, Defendant's Sixth Amendment right to a speedy trial has been violated.

II. Federal Rule of Civil Procedure 48(b)

Defendant also requests that the Court dismiss the indictment pursuant Federal Rule of Criminal Procedure 48(b), which provides that a court may dismiss an indictment “if unnecessary delay occurs in ․ bringing a defendant to trial.” Fed. R. Crim. P. 48(b)(3). Although courts have broad discretion to determine whether to dismiss an indictment, “ ‘dismissal is mandatory only if the defendant's constitutional rights have been violated.’ ” United States v. Knight, 562 F.3d 1314, 1324 (11th Cir. 2009) (quoting Butler, 792 F.2d at 1533 (11th Cir. 1986)).

Here, Defendant has established a violation of his Sixth Amendment right to a speedy trial under the Barker factors, thereby leading the Court to conclude that Defendant's constitutional rights have been violated. Thus, given the Government's prolonged inaction, dismissal of the indictment under Rule 48(b)(3) is also warranted.

CONCLUSION

Based on the foregoing, Defendant's Amended Motion to Dismiss Indictment Based on Post-Indictment Delay for Violation of His Constitutional Right to a Speedy Trial, [ECF No. 252], is GRANTED. The indictment, [ECF No. 3], is hereby DISMISSED. Further, Defendant's Motion to Quash, [ECF No. 258], is DENIED as MOOT.

DONE AND ORDERED in Miami, Florida, this 11th day of November, 2025.

RODOLFO A. RUIZ II UNITED STATES DISTRICT JUDGE