Memorandum Opinion — United States v. Kunle Alabi (D. Md., Dkt. 103, June 6, 2025)

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Memorandum opinion in the case against Kunle Alabi in the District of Maryland, ruling on Alabi's motions to dismiss the Indictment and to suppress evidence and statements. The Court grants the Motion to Dismiss Due to Violation of Sixth Amendment's Right to Speedy Trial, dismisses the Indictment, and denies the remaining motions as moot. The opinion states that the Indictment was filed on February 20, 2020 against Alabi and Fatima Fahm for conspiracy to distribute and possess with intent to distribute controlled substances. It states that Special Agent James received at least two notifications of Alabi's presence in the United States in 2021 and 2022 and took no action to locate or arrest Alabi.

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“Memorandum Opinion — United States v. Kunle Alabi (D. Md., Dkt. 103, June 6, 2025).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-20-cr-00072-dkt-103-d-md-e079f0162b/, SHA-256 931acb21b3e9b0855f6eb9ba70443e5f6e3627233f72b31d1d1969e7d2eaf912.

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Case 1:20-cr-00072-MJM Document 103 Filed 06/06/25 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA *
*
v. * CRIM. NO. MJM-20-72
*
KUNLE ALABI, *
*
Defendant. *
*
* * * * * * * * * *

MEMORANDUM OPINION

Currently pending are defendant Kunle Alabi’s motions to dismiss the Indictment and to

suppress evidence and statements. ECF Nos. 43, 44, 45, & 46. The government filed an omnibus

response in opposition to the motions, ECF No. 51, and a supplemental response, ECF No. 55.

Alabi filed a reply in support of each motion, ECF Nos. 55, 56, 57, & 58, and a supplemental reply,

ECF Nos. 73 & 78. The Court conducted an evidentiary hearing on the motions and heard oral

argument on May 19 and 20, 2025. The Court took the matter under advisement and thereafter

conducted a pretrial conference on June 2, 2025, during which the parties presented additional

evidence based on recent disclosures by the government. For the reasons explained herein, the

defendant’s Motion to Dismiss Due to Violation of Sixth Amendment’s Right to Speedy Trial (ECF

No. 45) is granted, and the remaining motions are denied as moot.

I. BACKGROUND

A. Wiretap Investigation of James Johnson and Sharafa Buhari in January 2017

In 2016, the Federal Bureau of Investigation (“FBI”) began a criminal investigation of drug

trafficking in the vicinity of Gilmor Homes in Baltimore, Maryland. James “Farmer” Johnson was

the primary target. Investigators believed that Johnson conducted a drug trafficking operation out

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of multiple locations in Baltimore, including 1524 North Gilmor Street. The investigative team

included FBI Special Agents Mark James and Will Filbert, and Task Force Officers (“TFO”) Jeff

Lilly and Gerald Hensley. 1 With court authorization, FBI began intercepting wire communications

of Johnson’s cell phone in or around November 2016. Search warrants eventually executed at

various locations associated with Johnson revealed large quantities of heroin and fentanyl, drug

trafficking paraphernalia, United States currency, and firearms.

In January 2017, FBI intercepted several calls between Johnson and Sharafa Buhari, a

heroin supplier. Johnson and Buhari arranged meetings during these calls. During one such call on

January 12, Buhari told Johnson that he was coming alone in a taxi. Gov’t Ex. 1. In another call

on the same date, Buhari told Johnson he was due to arrive in two minutes. Gov’t Ex. 2. Two

minutes later, on the same date, footage from a pole camera on the 1500 block of North Gilmor

Street captured Buhari arriving in a vehicle and exiting the vehicle carrying a black backpack.

Gov’t Ex. 3. Johnson encountered Buhari, and the two men entered 1524 North Gilmor Street. Id.

Less than 15 minutes later, Johnson and Buhari exited the building, entered Johnson’s vehicle, and

left the area. Gov’t Ex. 5. Buhari was not carrying the backpack at this time. Id. In less than ten

minutes, the vehicle returned and parked, and Johnson and Buhari exited the vehicle and entered

1524 North Gilmor Street. Gov’t Ex. 6. Buhari exited the building less than ten minutes later

carrying the black backpack, entered a taxi, and departed from the area. Gov’t Ex. 7.

Other calls between Johnson and Buhari were intercepted between January 15 and January

20. During one call, Buhari stated that he had returned to Baltimore from New York and arranged

to meet Johnson “in about two hours.” Gov’t Ex. 8. Another call occurred approximately 90

minutes later, during which Buhari told Johnson that he had arrived in a cab, and the two agreed

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Special Agent James and TFO Lilly testified at the motions hearing.

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to have the cab wait for Buhari. Gov’t Ex. 9. Shortly after this call, Buhari was captured again on

pole camera footage arriving at 1524 North Gilmor Street, carrying the black backpack,

encountering Johnson, and entering the building with Johnson. Gov’t Ex. 10. Buhari exited the

building less than five minutes later, entered the taxi, and left the area. Gov’t Ex. 11. During a call

on January 17, Buhari told Johnson that he was “coming tomorrow” and that he “ha[d] something

for [Johnson,]” and Johnson responded, “Okay.” Gov’t Ex. 12. During a call on January 19, Buhari

and Johnson arranged to meet. Gov’t Ex. 13. When Johnson asked where Buhari was going when

he “leave[s] from here[,]” Buhari stated that he was “going back to New York” to “meeting those

that are coming.” Id. According to Special Agent James, the intercepted calls and conduct captured

in pole camera footage were consistent with illicit drug transactions. 2

B. Seizure of Narcotics from Buhari, Kunle Alabi, and Fatima Fahm on January 21,
2017

During a call intercepted on January 20, 2017, Buhari told Johnson that he was “coming

tomorrow[,]” and Johnson agreed that he would see him the next day. Gov’t Ex. 14. The

investigative team conducted surveillance the following day at a bus stop near a travel plaza in the

5500 block of O’Donnell Street in Baltimore. The investigators believed that Buhari would arrive

at this location and planned to seize narcotics from him. Buhari had been previously observed at

the same bus stop arriving from New York, and in at least one instance, he appeared to be with at

least one other person. The investigative team decided to have TFOs Lilly and Hensley, who were

detectives with the Baltimore Police Department (“BPD”), conduct the drug seizure to make the

seizure appear random and avoid disclosing the larger federal investigation.

2
By this point, Special Agent James had more than ten years of experience conducting drug trafficking
investigations.

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The operation was conducted at night on January 21. The investigators observed Buhari

exit a bus with two other persons—a woman later identified as Fatima Fahm and a man later

identified as Kunle Alabi—and the group started walking through a parking lot toward the nearby

travel plaza. Buhari was carrying a brown paper bag, Fahm was carrying a purse and pulling a

suitcase, and Alabi was wearing a black backpack with a white Puma emblem. The backpack Alabi

was carrying had the same appearance as that Buhari had been captured in pole camera footage

carrying in and out of 1524 North Gilmor Street on multiple prior dates.

While seated in an unmarked vehicle, TFO Lilly made eye contact with Buhari, at which

point Buhari stopped, put his head down, and briefly communicated with Alabi and Fahm while

nodding in the direction of TFO Lilly’s vehicle. Buhari then began walking in a different direction,

briefly separating from Alabi and Fahm, although Alabi and Fahm soon began to follow him.

According to TFO Lilly, Buhari’s conduct appeared to be an evasive maneuver intended to avoid

law enforcement contact, and he appeared to be leading and attempting to direct Alabi and Fahm. 3

TFOs Lilly and Hensley stopped the three subjects as they approached the travel plaza.

TFO Hensley asked Fahm whether she had anything on her, and she responded by handing her

purse to the officer. Looking inside the purse, TFO Hensley found a black plastic bag containing

multiple individually wrapped packages of suspected controlled substances, and he relayed this

discovery to the investigative team. The TFOs directed the three subjects to sit on the ground and

called for additional BPD units. TFO Lilly asked Buhari whether he had drugs on him. Buhari

denied having drugs and gave TFO Lilly the brown paper bag he was carrying, which was found

to contain food inside.

3
By this point, TFO Lilly had more than ten years of experience as a police officer with BPD, had served
as a detective for approximately four years, and had experience conducting drug trafficking investigations.

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TFO Lilly then asked Alabi whether he had any drugs on him. Alabi responded, “No,” and

gave TFO Lilly the black Puma backpack he was carrying. TFO Lilly searched the backpack and

found a black plastic bag containing individually wrapped packages of suspected controlled

substances and various other items, including two boxes of razor blades, a Bank of America card

bearing Buhari’s name, and multiple receipts. See ECF No. 51-10. Other items were recovered

from Alabi’s person. Alabi and Fahm each possessed a Nigerian passport in their name.

The TFOs also searched the suitcase Fahm had been pulling and found plastic bags

containing individually wrapped pellets of suspected controlled substances. The odor and visual

appearance of fecal matter led the investigators to believe that Fahm had ingested wrapped

quantities of drugs. The officers asked Fahm whether she had ingested anything and whether she

required medical attention, but they had trouble communicating with her due to a language barrier.

A medical unit was called for Fahm and transported her to an emergency room. Fahm remained in

the hospital for several days and passed additional pellets containing suspected heroin. She was

released and later departed from the United States for Nigeria.

Buhari and Alabi were transported to a BPD station the night they were stopped and were

released soon thereafter. Special Agent James took custody of the physical evidence, including the

packages of suspected narcotics. Chemical testing later confirmed the substances to be heroin. See

ECF No. 51-5. The heroin was retained in evidence but the black plastic bag found inside the black

Puma backpack and the packaging material for the heroin is not presently available.

C. Prosecution of Buhari, Johnson, Alabi, and Fahm

After Buhari and Alabi were released, the investigators learned that Buhari was scheduled

to depart from the United States on February 2, 2017. On February 1, the government filed a

criminal complaint against Buhari and obtained a warrant for his arrest. Agents arrested Buhari at

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an airport in New York on February 2. A federal grand jury in the District of Maryland returned an

indictment on February 28 charging Buhari with conspiracy to possess with intent to distribute

controlled substances, in violation of 21 U.S.C. § 846. See United States v. Sharafa Buhari, Crim.

No. RDB-17-111. Buhari entered a guilty plea in July 2017 and was sentenced in October 2017. A

federal indictment was returned against Johnson in March 2018. See United States v. James

Johnson, Crim. No. RDB-18-178. Johnson entered a guilty plea in October 2018 and was

sentenced in March 2019.

The investigators learned that Alabi was scheduled for a flight to Nigeria after his release

from custody but then learned that he was not on this scheduled flight. Based on this booking,

Fahm’s departure for Nigeria, and Buhari’s attempt to depart, the investigators believed that Alabi

left the United States without detection. However, between May 2018 and July 2022, Alabi had

several contacts with local, state, and federal government agencies in the State of Illinois. He was

cited for a traffic violation in DuPage County, Illinois in May 2018, ECF No. 58-1, and he obtained

a marriage license in Kane County, Illinois in October 2019, ECF No. 58-3. The State of Illinois

issued a driver’s permit to Alabi several times between November 2018 and July 2022. ECF No.

58-2. And in March 2021, Alabi submitted an application for adjustment of immigration status to

U.S. Citizenship and Immigration Services (“USCIS”). ECF 58-5.

The Indictment in the instant case was filed on February 20, 2020, charging Alabi and

Fahm with conspiracy to distribute and possess with intent to distribute controlled substances, in

violation of 21 U.S.C. § 846. ECF No. 1. The Indictment alleges that between January 19 and

January 21, 2017, Alabi and Fahm conspired with one another and other persons to distribute one

kilogram or more of heroin. Id. The FBI case agents entered the federal warrant for Alabi’s arrest

in the National Crime Information Center database (“NCIC”). Special Agent James received a new

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assignment in 2020 and no longer actively worked on drug trafficking investigations. No further

steps were taken to apprehend Alabi or determine his location, except that, when FBI’s NCIC

operator contacted Special Agent James to validate the NCIC entry for the arrest warrant, Special

Agent James would correspond with the U.S. Attorney’s Office and then validate the warrant as

still active. ECF Nos. 58-6, 58-7, 58-12, & 58-13. This validation occurred twice: in June 2021

and September 2022. Id. The NCIC entry would ensure that if Alabi had contact with any law

enforcement agency and the officers checked Alabi’s identifiers in the database, they would

become aware of the federal arrest warrant and alert FBI.

In 2021 and 2022, Special Agent James did receive at least two notifications of Alabi’s

presence in the United States. On August 11, 2021, he was notified that FBI received a message

regarding a name-based match on Alabi’s full name and that Alabi was fingerprinted for his

immigration application to USCIS. ECF No. 58-10. Special Agent James forwarded this notice to

Special Agent Filbert on the same date. ECF No. 78-1 at 8. In a separate notice on the same date,

Special Agent James was informed that Alabi provided an address in Aurora, Illinois on his

immigration application. ECF No. 58-9. In April 2022, Special Agent James received notification

from USCIS again that Alabi applied for immigration relief. ECF Nos. 58-11 & 58-15. Special

Agent James took no action to locate or arrest Alabi in response to these notices.

On January 24, 2023, officers of Burr Ridge Police Department in Burr Ridge, Illinois

stopped Alabi for an alleged traffic violation. ECF No. 51-9. An officer discovered Alabi’s federal

arrest warrant in NCIC. The United States Marshal Service in the Northern District of Illinois took

Alabi into custody on January 25, and Alabi made his initial appearance in that district on January

26. Alabi was ordered released under conditions of supervision.

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D. Procedural History

Alabi made his initial appearance in the District of Maryland on February 23, and the Office

of the Federal Public Defender was appointed to represent him. Between March 10, 2023, and

November 2, 2023, the government filed a series of motions for continuances under the Speedy

Trial Act with Alabi’s consent. ECF Nos. 12, 14, 16, 18, & 20. In the motion dated August 14,

2023, the government represented that it had completed its discovery obligations but the defense

remained in the process of reviewing discovery and additional time was needed to determine

whether the matter could be resolved short of trial. ECF No. 18. In the motion dated November 2,

2023, the government confirmed that the parties had begun plea discussions. ECF No. 20. The

Court granted each of the consent motions for exclusion of time pursuant to 18 U.S.C. §

3161(h)(7), which tolled the period in which trial must begin under the Speedy Trial Act through

February 7, 2024. ECF Nos. 13, 15, 17, 19, & 21.

On January 4, 2024, the Court directed the parties to file a joint status report by February

5, 2024. ECF No. 22. On February 5, the government filed a letter stating that it had fulfilled its

discovery obligations and remained in plea discussions with the defense. ECF No. 23. The defense

agreed and consented to this status report. Id. Thereafter, the government continued filing Speedy

Trial Act tolling motions with the defense’s consent. ECF Nos. 24 & 27. The Court granted these

motions pursuant to 18 U.S.C. § 3161(h)(7), which tolled the period through July 8, 2024. ECF

Nos. 26 & 28.

On May 1, 2024, the Court directed the parties to file another status report by July 8, 2024.

ECF No. 29. On July 8, the government filed, with the defense’s agreement and consent, a letter

stating that plea discussions were ongoing and that the defense had informed government counsel

that Alabi was “in the process of understanding how resolving the case may impact his immigration

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status.” ECF No. 31. The government filed another Speedy Trial Act tolling motion with the

defense’s consent, ECF No. 30, which the Court granted, ECF No. 33, tolling the period through

September 7, 2024.

On October 15, 2024, the Court conducted a telephone conference with counsel for both

parties for scheduling purposes, during which a potential trial date of May 19, 2025, was identified.

The Court directed defense counsel to file correspondence with the Court addressing whether

potential trial dates were discussed with Alabi and whether he agreed to the trial date of May 19,

2025. ECF No. 35. No correspondence was filed. But the defense did consent to the government’s

motion to toll the period through May 19, 2025. ECF No. 36. The Court granted this motion on

October 22, 2024. ECF No. 37.

On February 25, 2025, the Court conducted another scheduling call with counsel, during

which defense counsel confirmed Alabi’s consent to May 19, 2025, as a trial date. See ECF No.

39. The Court entered a Letter Order scheduling the matter for a jury trial beginning on June 9,

2025, and setting deadlines for motions and a status report regarding the completion of discovery.

Id. On March 7, the government filed a status report stating that it had recently produced additional

discovery to the defense pertaining to its larger investigation of Johnson and others, wherein

mention of Alabi was limited, and requesting modification of certain deadlines and Speedy Trial

Act tolling through the new trial date. ECF No. 41. The defense consented and agreed to these

requests, and the Court granted them. ECF No. 42.

E. Defense Motions

On March 26, 2025, Alabi filed a Motion to Dismiss for Preindictment Delay, ECF No. 43;

a Motion to Dismiss Due to Violation of Sixth Amendment’s Right to Speedy Trial, ECF No. 45;

a Motion to Suppress Statements, ECF No. 44; and a Motion to Suppress Tangible Evidence, ECF

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No. 46. The government filed an omnibus response in opposition to all of Alabi’s motions on April

14, 2025. ECF No. 51. On April 18, the government filed a sealed supplemental response. ECF

No. 55. Alabi filed replies in support of his motions on April 21. ECF Nos. 56, 57, 58, & 59. On

May 6, the government disclosed for the first time body-worn camera (“BWC”) footage of law

enforcement’s encounter with Alabi, Buhari, and Fahm on January 21, 2017. On May 14, Alabi

filed a supplement noting the recent discovery from the government and advancing additional

arguments for dismissal of the Indictment. ECF No. 73.

On May 19, 2025, the Court conducted an evidentiary hearing on Alabi’s motions, hearing

testimony from Special Agent James and TFO Lilly, and receiving several exhibits into evidence.

The Court heard oral argument on the same date and on May 20, took the motions under

advisement. On June 2, 2025, the Court conducted a pretrial conference during which the parties

presented additional evidence and presented further arguments on the motions that remained under

advisement.

For reasons explained below, Alabi’s Motion to Dismiss Due to Violation of Sixth

Amendment’s Right to Speedy Trial (ECF No. 45) is granted, and the Indictment shall be

dismissed.

II. DISCUSSION

Alabi moves for dismissal of the Indictment on the ground that his Sixth Amendment right

to a speedy trial was violated in this case.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial.” U.S. Const. amend. VI. “The bounds of this right are

‘impossible to determine with precision.’” United States v. Pair, 84 F.4th 577, 588 (4th Cir.

2023), cert. denied, 144 S. Ct. 2589 (2024) (quoting Barker v. Wingo, 407 U.S. 514, 521 (1972)).

The Supreme Court has described the speedy trial right as “amorphous,” “slippery,” and

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“necessarily relative.” Barker, 407 U.S. at 522 (citation omitted). The right is “consistent with

delays,” and whether it is violated is ultimately “depend[ent] upon circumstances.” Vermont v.

Brillon, 556 U.S. 81, 89 (2009) (quoting Barker, 407 U.S. at 522). The Supreme Court has “refused

to ‘quantif[y]’ the right ‘into a specified number of days or months’ or to hinge the right on a

defendant’s explicit request for a speedy trial.” Id. at 89–90 (quoting Barker, 407 U.S. at 522–

25). Despite its imprecise nature, the consequence for violating a criminal defendant’s right to a

speedy trial is severe in that it requires the dismissal before the truth of the government’s charges

can be determined at trial. Barker, 407 U.S. at 522; see also Betterman v. Montana, 578 U.S. 437,

444–45 (2016) (dismissal of charges as “[t]he sole remedy for a violation of the speedy trial right”).

To determine whether a pretrial delay contravenes the speedy trial guarantee, the Supreme

Court developed a four-factor balancing test requiring courts to consider: “(1) the length of delay;

(2) the reasons therefor; (3) the timeliness and vigor of the assertion of the speedy trial guarantee;

and (4) prejudice to the defendant.” United States v. Hall, 551 F.3d 257, 271 (4th Cir. 2009) (citing

Barker, 407 U.S. at 530). To prevail on a speedy trial claim, a defendant must “establish ‘that on

balance, [the] four separate factors weigh in his favor.’” Id. (quoting United States v. Thomas, 55

F.3d 144, 148 (4th Cir. 1995)).

A. Length of Pretrial Delay

The first Barker factor calls for consideration of the length of delay between indictment

and trial. Hall, 551 F.3d at 271. The court must determine “whether delay before trial was

uncommonly long[.]” Doggett v. United States, 505 U.S. 647, 651 (1992) (citing Barker, 407 U.S.

at 530). This first factor is “actually a double enquiry.” Id. In addition to serving as one of four

factors in the balancing test, an uncommonly long pretrial delay “is a threshold requirement”

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necessary to show that “the length of the delay is at least presumptively prejudicial.” United States

v. Burgess, 684 F.3d 445, 451 (4th Cir. 2012) (citing Doggett, 505 U.S. at 651–52).

Accordingly, the court must first “decide whether the length of the delay triggers a speedy

trial inquiry.” Hall, 551 F.3d at 271. The length of delay that will trigger inquiry into whether the

speedy trial right has been violated is “necessarily dependent upon the peculiar circumstances of

the case.” Barker, 407 U.S. at 530–31. For example, “the delay that can be tolerated for an ordinary

street crime is considerably less than for a serious, complex conspiracy charge.” Id. at 531. “The

Supreme Court has observed that ‘postaccusation delay [is] presumptively prejudicial at least as it

approaches one year.’” Burgess, 684 F.3d at 452 (quoting Doggett, 505 U.S. at 652 n.1). But even

“a postaccusation delay as short as eight months may qualify as presumptively prejudicial in cases

of limited complexity.” Id. (citing United States v. Woolfolk, 399 F.3d 590, 598 (4th Cir. 2005)). In

the instant case, approximately five years and three months have passed since the indictment was

filed—an uncommonly long delay more than sufficient to trigger a speedy trial analysis.

Next, the court must “weigh ‘the extent to which the delay stretches beyond the bare

minimum needed to trigger judicial examination of the claim.’” Hall, 551 F.3d at 271 (quoting

Doggett, 505 U.S. at 652). In Doggett, the Supreme Court called this factor “significant to the

speedy trial analysis because . . . the presumption that pretrial delay has prejudiced the accused

intensifies over time.” 505 U.S. at 652.

It is important to bear in mind that “the constitutional right to a speedy trial is triggered by

an indictment[]” and “does not protect a defendant from a pre-indictment delay.” Hall, 551 F.3d

at 271. Some courts have held, however, that once post-indictment delay triggers a speedy trial

analysis, “it is appropriate to consider inordinate pre-indictment delay in determining how heavily

post-indictment delay weighs against the Government.” United States v. Ingram, 446 F.3d 1332,

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1339 (11th Cir. 2006) (citing United States v. Vispi, 545 F.2d 328, 333 (2d Cir. 1976)). This Court

agrees. Here, the post-indictment delay in excess of five years stretches far beyond the bare

minimum necessary to trigger a speedy trial analysis, especially when considered in combination

with the three-year delay in charges before the Indictment was filed.

Accordingly, the Court finds that the first Barker factor weighs in favor of finding a

violation of Alabi’s speedy trial right.

B. Reason for the Delay

The second Barker factor requires the court to consider the reason for the pretrial delay.

Hall, 551 F.3d at 271. The court must determine “whether the government or the criminal

defendant is more to blame for th[e] delay.” Brillon, 556 U.S. at 90 (quoting Doggett, 505 U.S. at

651). “Barker instructs that ‘different weights should be assigned to different reasons.’” Id.

(quoting Barker, 407 U.S. at 531). “The reasons for a trial delay should be characterized as either

valid, improper, or neutral[,]” focusing on “the intent of the prosecution.” Hall, 551 F.3d at 272.

A reasonably diligent prosecution weighs heavily against finding a speedy trial violation. See

Doggett, 505 U.S. at 656 (“[I]n this case, if the Government had pursued Doggett with reasonable

diligence from his indictment to his arrest, his speedy trial claim would fail.”). “Deliberate delay

‘to hamper the defense’ weighs heavily against the prosecution.” Brillon, 556 U.S. at 90 (quoting

Barker, 407 U.S. at 531). Negligence by the government occupies a “middle ground” between

diligent prosecution and deliberate delay. Doggett, 505 U.S. at 656–57. Official negligence is more

neutral than deliberate delay, and it is therefore “weighed more lightly than a deliberate intent to

harm the accused’s defense[.]” Id. at 657. But it “still falls on the wrong side of the divide between

acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun.” Id.;

see also United States v. Frith, 181 F.3d 92 (4th Cir. 1999) (unpub.) (“More neutral reasons, such

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as governmental negligence or an overcrowded court docket, are still weighed against the

government (because it bears the ultimate responsibility for bringing a defendant to trial), but less

heavily.”).

In United States v. Loud Hawk, the Supreme Court recognized the second Barker factor,

the reason for delay, is “[t]he flag all litigants seek to capture . . . .” 474 U.S. 302, 315–16 (1986).

Several courts have taken this statement to place special importance and focus on the second

Barker factor in the speedy trial analysis. See, e.g., United States v. Sears, Roebuck & Co., 877

F.2d 734, 739 (9th Cir. 1989); United States v. Seltzer, 595 F.3d 1170, 1177 (10th Cir. 2010).

Here, the government is to blame for most of the lengthy pre-indictment and post-

indictment delays in this case. The Court, again, acknowledges that the Sixth Amendment right to

a speedy trial “does not protect a defendant from a pre-indictment delay.” Hall, 551 F.3d at 271.

But when a post-indictment delay is “immediately preceded” by a lengthy lapse in time between

“the government’s discovery of the alleged offense and its filing of [charges,]” the delay in filing

charges is properly considered in conjunction with post-indictment delay as part of the speedy trial

analysis. Vispi, 545 F.2d at 333; see also Ingram, 446 F.3d at 1339. Below the Court will examine

the different reasons offered for the period of pre-indictment delay, the period between the filing

of the Indictment and Alabi’s arrest, and the post-arrest delay.

1. Pre-Indictment Delay Between January 2017 and February 2020

The government attributes its three-year delay in seeking an indictment against Alabi

primarily to its continuing investigation of Buhari, Johnson, and others. The Court acknowledges

that deference must be accorded to decisions made by the government to protect the integrity of

its criminal investigations. Still, the passage of time increases the need for sound reasons to justify

official delay in bringing an accused to justice, considering the potential prejudice the accused may

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suffer from the delay. Cf. United States v. Automated Med. Lab’ys, Inc., 770 F.2d 399, 404 (4th

Cir. 1985) (quoting United States v. Lovasco, 431 U.S. 783, 790 (1977)) (an accused’s Fifth

Amendment right to due process is violated when prosecution “after substantial delay violates

‘fundamental conceptions of justice’ or ‘the community’s sense of fair play and decency[]’”);

Howell v. Barker, 904 F.2d 889, 895 (4th Cir. 1990) (finding of unconstitutional preindictment

delay where the delay prejudiced the defendant and the state attributed its delay to “mere

convenience” and negligence in failing to prosecute the defendant at an earlier point in time); Vispi,

545 F.2d at 333 (considering the lengthy four-to-five-year delay in filing charges in deciding

whether defendant’s speedy trial right was violated, noting that after this delay in filing charges,

“further delay in the trial could only serve to increase [defendant’s] burden of obtaining witnesses

and evidence to show that his conduct had not been willful”).

The government’s explanation for its three-year delay in charging Alabi is less than

satisfactory. Alibi’s only connection to the larger Johnson investigation was through his alleged

association with Buhari. Buhari’s case reached final judgment less than one year after the January

2017 encounter with no apparent harm to the larger investigation of Johnson’s drug trafficking

operation. Johnson’s case reached final judgment in March 2019, almost a year before the

Indictment was filed against Alabi in the instant case.

2. The Post-Indictment, Pre-Arrest Delay Between February 2020 and January
2023

The Court turns next to consider the reasons for the period of delay between the filing of

the Indictment on February 20, 2020, and Alabi’s arrest on January 24, 2023. The government

offers no valid reasons for this delay of almost three years. Although the FBI case agent took the

basic steps of entering Alabi’s arrest warrant in NCIC in 2020, after the Indictment was filed, and

then confirmed with the U.S. Attorney’s Office that the warrant should remain active and validated

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the NCIC entry in 2021 and 2022, the government took no active steps to determine Alabi’s

whereabouts or to effect his arrest. Several courts have found that entering an arrest warrant on

NCIC does not suffice to support a finding of reasonable diligence. See, e.g., United States v.

Reynolds, 231 F. App’x 629, 631 (9th Cir. 2007); United States v. Boone, 706 F. Supp. 2d 71, 76

(D.D.C. 2010).

After Alabi’s encounter with law enforcement in January 2017, the government believed

that he left the United States. For his part, Buhari scheduled a flight to leave the country, but the

government charged and apprehended him at the airport before his departure on February 2, 2017.

Records government counsel recently acquired from U.S. Customs and Border Protection confirm

that, like Buhari, Alabi and Fahm had a booked flight to leave the United States for Nigeria. Fahm,

in fact, departed on that flight, but Alabi did not. In these circumstances, the government’s

suspicion or assumption that Alabi found some other way to leave the country was not

unreasonable. But reasonable diligence required the government to test this assumption and

attempt to determine Alabi’s whereabouts, and the government’s obligation to test its assumption

increased with the passage of time. See Doggett, 505 U.S. at 652–53, 656–57.

In Doggett, the Supreme Court found negligence by the government when, during a period

spanning multiple years, law enforcement “made no serious effort to test their progressively more

questionable assumption that [the defendant] was living abroad[.]” 505 U.S. at 652–53. The Court

went on to state: “While the Government’s lethargy may have reflected no more than Doggett’s

relative unimportance in the world of drug trafficking, it was still findable negligence, and the

finding stands.” Id. at 653. The Court also stated that “if the Government had pursued Doggett

with reasonable diligence from his indictment to his arrest, his speedy trial claim would fail.

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Indeed, that conclusion would generally follow as a matter of course however great the delay, so

long as Doggett could not show specific prejudice to his defense.” Id. at 656.

Here, as in Doggett, the government “made no serious effort to test” its assumption that

Alabi was abroad in the six years that passed between his encounter with TFOs Lilly and Hensley

in January 2017 and his eventual arrest by the Burr Ridge Police Department in January 2023. Id.

at 652–53. But, in this case, the government’s failures exceeded the mere negligence or

inadvertence presented in Doggett.

Special Agent James received notifications originating with USCIS in August 2021 and

April 2022 indicating that Alabi applied for immigration relief and provided an address in Illinois.

Specifically, Special Agent James received two email notices on August 11, 2021: the first stating

that a subject with Alabi’s name and matching identifiers applied for an immigration benefit and

provided a specific address in Aurora, Illinois; and the second indicating a name-based match for

Alabi and advising that the FBI contact USCIS to verify the subject’s identity. ECF Nos. 58-8

through 58-11. No action was taken in response to either notification. Next, on April 25, 2022,

Special Agent James received a notice from USCIS stating that Alabi applied for immigration

relief again that month. ECF No. 58-15.

The notifications in August 2021 and April 2022 clearly undermined the government’s

assumption that Alabi was out of the country. Still, the agent took no action in response to these

notifications. 4 At no point, did he or any other agent assigned to the case check any government

4
The Court acknowledges that Special Agent James was reassigned to another division within FBI by the
time he received these notifications and no longer worked drug trafficking investigations. I find little
significance in this fact considering that Special Agent James continued consulting the U.S. Attorney’s
Office about the status of Alabi’s arrest warrant and validating the NCIC entry for it after he was reassigned.
And at the pretrial conference on June 2, 2025, government counsel confirmed that Special Agent James
remains the case agent on this case today.

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databases to ascertain whether Alabi was in Illinois, as suggested by the notices from USCIS. 5

“[H]ad they done so, they could have found him within minutes.” Doggett, 505 U.S. at 653. The

investigators would have likely discovered several contacts Alabi had with state and local

government agencies in Illinois between the time of his indictment and his eventual arrest almost

three years later. In United States v. Akinsola, the district court found reasonable diligence lacking

where, while the defendant was at large, he “had numerous government contacts,” including

applying for resident alien cards and driver’s licenses in his own name, and “[t]he Government

made no attempts to check any of these governmental agencies.” 57 F. Supp. 2d 455, 458 (E.D.

Mich. 1999). But here, the government’s conduct was more culpable than the negligence displayed

in Doggett and Akinsola in that the case agent ignored notices he received from USCIS giving

clear indication that Alabi was likely present and available for arrest in Illinois. The government

neither proffered nor presented evidence of any good reason to ignore these notices and allow

Alabi to remain at large, ignorant of the Indictment accusing him of a serious federal crime and

therefore unable to prepare a defense.

Although the Court does not find that the government delayed Alabi’s arrest in bad faith

or purposefully to impair his defense, the government’s conduct is fairly characterized as gross

negligence—a level of culpability greater than simple negligence or mere inadvertence. See United

States v. Ferreira, 665 F.3d 701, 706 (6th Cir. 2011) (government’s conduct was “grossly

negligent” and “beyond simple negligence” in causing three-year post-indictment delay in securing

defendant’s transfer from state to federal custody); United States v. Oliva, 909 F.3d 1292, 1298–

99, 1303–04 (11th Cir. 2018) (finding no clear error in district court’s finding that the government

5
Recent communications between Special Agent James and USCIS, which were presented during the
pretrial conference on June 2, 2025, demonstrate the ease with which the agent could have followed up with
USCIS in response to the notices he received in August 2021 and April 2022.

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was “‘grossly negligent’ in failing to procure [defendants’] arrests,” although the government did

not “purposefully cause[] delay or otherwise act[] in bad faith”).

3. Post-Arrest Delay Between January 2023 and June 2025

While the Court finds the government to blame for the six-year delay between its discovery

of Alabi’s crime and his eventual arrest, the Court cannot place the blame for the delays that

followed the arrest solely with the government. Approximately two years and four months have

passed since Alabi’s arrest, initial appearance, and appointment of counsel. Most of this delay

resulted from continuances sought by the government and granted by the Court with Alabi’s

consent. Although the government continued disclosing discovery to the defense in the weeks and

days that preceded and followed the recent motions hearing, the bulk of discovery specifically

relevant to Alabi’s conduct was disclosed within three months of his initial appearance in this

district and appointment of counsel. Thereafter, the defense took time to review the discovery, and

the parties engaged in what appears to have been protracted plea discussions that involved the

defense assessing what impact a plea agreement might have on Alabi’s immigration status. In sum,

the post-arrest portion of the pretrial delay in this case was not a bad-faith or deliberate effort to

gain tactical advantage over Alabi, and Alabi consented to it. Thus, the Court finds that the reasons

for this portion of post-indictment delay are neutral and do not weigh for or against the

government.

4. Summary of the Reasons for Pretrial Delay

Ultimately, the government’s negligence is to blame for most of the five-year-and-three-

month post-indictment delay in this case—and for most of the broader eight-and-a-half-year delay

that has followed the government’s discovery of Alabi’s alleged crime in January 2017. The two-

year-and-one-month period of delay between the alleged crime and the filing of the Indictment in

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February 2020, and the post-indictment delay until August 2021, are owed to simple negligence

by the government. But the period of delay between August 2021 and Alabi’s arrest in January

2023 is owed to gross negligence by the government. During this period, the government failed to

investigate Alabi’s location and pursue his arrest even after receiving specific notification that he

gave USCIS a specific address for himself in Aurora, Illinois, on an application for immigration

relief. The FBI case agent received another notification in April 2022 that Alabi was in the United

States and applied for immigration relief again.

To be sure, the Court does not find that the government purposefully delayed Alabi’s arrest

with “a deliberate intent to harm [his] defense[.]” Doggett, 505 U.S. at 657. But a pattern of official

negligence emerged and increased in culpability during the six-year period that preceded Alabi’s

arrest. Accordingly, the second Barker factor—“[t]he flag all litigants seek to capture[,]” Loud

Hawk, 474 U.S. at 315–16—weighs firmly in favor of finding a violation of Alabi’s speedy trial

right.

C. Defendant’s Assertion of His Speedy Trial Right

The third factor the court must consider is “the timeliness and vigor of the assertion of the

speedy trial guarantee.” Pair, 84 F.4th at 590 (quoting Hall, 551 F.3d at 271). “The defendant’s

assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether

the defendant is being deprived of the right.” Barker, 407 U.S. at 531–32. In Barker, the Supreme

Court rejected “the rule that a defendant who fails to demand a speedy trial forever waives his

right.” Id. at 528. In a typical case, defense counsel is reasonably “willing to tolerate some delay”

where counsel “finds it reasonable and helpful in preparing his own case[.]” Id. In Doggett, the

Court recognized that “pretrial delay is often both inevitable and wholly justifiable.” 505 U.S. at

656. Thus, “an automatic, pro forma demand made immediately after appointment of counsel[,]”

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the Court stated in Barker, “is not consistent with the interests of defendants, society, or the

Constitution.” 407 U.S. at 528. At the same time, however, the Court emphasized that “failure to

assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.”

Id. at 532.

In Doggett, the Supreme Court held that a defendant “is not to be taxed for invoking his

speedy trial right only after his arrest” when there is no evidence that the defendant was aware of

his charges before his arrest. 505 U.S. at 654. So, in the instant case, the Court cannot weigh the

third Barker factor against Alabi for failing to assert his speedy trial right before he was arrested.

No evidence has been presented to suggest that he was aware of the Indictment before his arrest in

January 2023.

However, once Alabi became aware of his charges in January 2023, he bore responsibility

for asserting his speedy trial right, and he failed to assert that right for more than two years. Alabi

had numerous opportunities to assert his speedy trial right after his initial appearance. Based in

part on his consent and the parties’ plea discussions, the government filed a series of motions for

continuances that spanned two years. Each motion presented an opportunity for Alabi to object to

any continuance and either to demand a speedy trial or move for dismissal of the Indictment.

Instead, he consented to each continuance. Additionally, before scheduling the trial, the Court

requested periodic status reports from the parties and conducted two conference calls with counsel

for scheduling purposes. Alabi’s speedy trial right was not asserted at any of these points. If Alabi

desired a speedy trial, there was no reason for him not to assert his right to one after the government

stated on the record in August 2023 that it had completed discovery. 6 Still, the defense continued

6
The government later obtained additional materials to disclose and opted to disclose a broader range of
discovery than might have been necessary. But if Alabi desired a speedy trial in this case, the government’s
first assertion that discovery was complete gave him every reason to demand prompt scheduling of a trial.

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consenting to continuances for several more months and eventually consented to a trial date two

years and three months after his arrest. He did not assert his right to a speedy trial until he filed his

motion to dismiss the Indictment in March 2025—about two and a half months before his trial was

scheduled to begin.

The Court finds the two-year delay in Alabi’s assertion of his speedy trial right to weigh

against a finding that his right was violated in this case. See United States v. Perry, 46 F.3d 1128

(4th Cir. 1995) (unpub.) (“With respect to the third factor, whether a defendant has timely asserted

his right to a speedy trial ‘may be weighed in favor of the Government when the Defendant waits

until late in the course of events to assert his right.’”) (citation omitted); United States v. Gould,

672 F.3d 930, 938 (10th Cir. 2012) (“[I]f the defendant fails to demand a speedy trial, moves for

many continuances, or otherwise indicates that he is not pursuing a swift resolution of his case,

this factor weighs heavily against the defendant.”); United States v. Brooks, 734 F. Supp. 3d 447,

466 (D. Md. 2024) (finding defendant’s assertion of speedy trial right “woefully deficient” where

he “repeatedly joined in the parties’ many requests for a continuance”).

The Fourth Circuit has found much shorter periods of delay in a defendant’s assertion of

his speedy trial right to weigh against finding a Sixth Amendment violation. See Pair, 84 F.4th at

590 (defendant “did not object to the continuance of his trial” until almost eight months after his

indictment and did not oppose “various continuances”); United States v. Robinson, 55 F.4th 390,

399–400 (4th Cir. 2022) (defendant did not assert his speedy trial right until more than a year after

his arrest); United States v. Grimmond, 137 F.3d 823, 829 (4th Cir. 1998) (defendant failed to assert

his speedy trial right until four months before the start of his trial); United States v. Ramey, 201

F.3d 438 (4th Cir. 1999) (unpub.) (defendant “wait[ed] several months after learning at the

indictment to assert his Sixth Amendment right”); United States v. Bryant, 417 F. App’x 220, 221–

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22 (4th Cir. 2008) (defendant “waited until . . . ten months after his indictment was unsealed,” and

six months before his trial was scheduled to begin, to assert his right).

Likewise, here, the Court finds that the third Barker factor weighs against Alabi. Although

vigorous, his motion to dismiss is the first and only time he has asserted his speedy trial right. And

this motion was filed more than two years after his arrest, after Alabi consented to several

continuances, after his counsel conducted multiple scheduling conferences with the Court, and less

than three months before his scheduled trial. This assertion of Alabi’s speedy trial right is plainly

untimely and weighs against him on the third Barker factor.

D. Prejudice to the Defense

The fourth factor the Court must consider is prejudice to the defendant caused by the

pretrial delay. Hall, 551 F.3d at 271 (citing Barker, 407 U.S. at 530). This factor “should be

assessed in the light of the interests of defendants which the speedy trial right was designed to

protect.” Pair, 84 F.4th at 590 (quoting Barker, 407 U.S. at 532). “The Supreme Court has

identified three defense interests for consideration: (1) whether there was an oppressive pretrial

incarceration; (2) the anxiety and concern suffered by the accused; and (3) the possibility that the

defense was impaired.” Hall, 551 F.3d at 272 (citing Barker, 407 U.S. at 532). Of these interests,

“the most serious is the last, because the inability of a defendant adequately to prepare his case

skews the fairness of the entire system.” Barker, 407 U.S. at 532.

Although Alabi has not been subjected to “oppressive pretrial incarceration” and has not

shown any “anxiety [or] concern” based on the post-indictment delays, he has presented “the

possibility that [his] defense [has been] impaired.” Hall, 551 F.3d at 272.

First, Alabi claims prejudice based on Special Agent James’s and TFO Lilly’s failure to

remember certain details about their investigation when testifying at the motions hearing. Alabi is

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correct that, during certain points of each witness’s testimony, the witness testified that he could

not remember certain details related to the investigation and events of January 2017. In at least one

of these instances, TFO Lilly attributed to the passage of time to his difficulty recalling the exact

point in time that he recognized the black Puma backpack Alabi was carrying as the same backpack

he had previously observed Buhari carrying on pole camera footage. Tr., May 19, 2025, at 105:12–

16. 7

Alabi contends that TFO Lilly’s failure in recollection impairs his defense that the search

of the backpack he was carrying violated the Fourth Amendment and that the fruits of the search

are subject to suppression. The Fourth Amendment “generally requires police to secure a warrant

before conducting a search[.]” United States v. Currence, 446 F.3d 554, 556 (4th Cir. 2006)

(quoting Maryland v. Dyson, 527 U.S. 465, 466 (1999)) (internal quotation marks omitted).

However, the government contends that TFO Lilly’s search of the backpack was justified as a

search incident to arrest—a well-established exception to the Fourth Amendment’s warrant

requirement. 8 See id. (citing United States v. Robinson, 414 U.S. 218, 224 (1973)). “[W]hen law

enforcement officers have probable cause to make a lawful custodial arrest, they may—incident

to that arrest and without a warrant—search the arrestee’s person and the area within his immediate

7
To be sure, TFO Lilly’s broader testimony about the backpack was notably ambiguous. TFO Lilly testified
that he reviewed pole camera footage before stopping Alabi, Buhari, and Fahm on January 21, 2017. Tr.,
May 19, 2025, at 125:3–5. But when the Court asked him whether he was aware of the black Puma backpack
before he stopped Alabi, he responded, “That’s a good question, sir,” and then stated, while trying to recall,
“I was aware but I don’t know. I don’t know, sir. Like I said, I can’t remember exactly when I realized the
black Puma bag was in play so I don’t want to speculate. I do not – I don’t remember.” Id. at 125:17–126:1.
When government counsel later asked TFO Lilly whether “any information” about the backpack was
“relayed” to him by other investigators, TFO Lilly stated, “Yes.” Id. at 126:10–19. When the Court asked
when this information was conveyed, the officer stated, “It was prior to the stop,” although he could recall
the exact point in time. Id. The Court finds it likely that the ambiguity in TFO Lilly’s testimony is
attributable to the passage of eight and a half years in time since the events in question.
8
The government does not argue that the search of the backpack was justified by Alabi’s consent. See
United States v. Buckner, 473 F.3d 551, 554–55 (4th Cir. 2007) (“[V]alid consent to seize and search items
provides an exception to the usual warrant requirement.”).

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control.” Id. (quoting Chimel v. California, 395 U.S. 752, 763 (1969)) (internal quotation marks

omitted). “[I]n determining whether an arrest was justified by probable cause,” a court should

consider “all the relevant facts known to the arresting officer and ‘the inferences [that may be]

drawn by [the officer] on the scene,’ including the ‘officer’s practical experience and the inferences

the officer may draw from that experience.’” United States v. Myers, 986 F.3d 453, 457 (4th Cir.

2021) (quoting United States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004) (alterations in

Myers)).

The Court finds there to be a real possibility that TFO Lilly’s failure in recollection severely

impaired Alabi’s defense. If TFO Lilly was not aware that the black backpack Alabi was carrying

on January 21, 2017, was an apparent match for the one Buhari was captured carrying in earlier

pole camera footage, then Alabi could lodge a stronger argument that TFO Lilly lacked probable

cause to arrest Alabi at the time he searched the backpack. If TFO Lilly lacked probable cause to

arrest Alabi, then his warrantless search of the backpack would not have been a permissible search

incident to arrest and would have violated the Fourth Amendment’s warrant requirement. The

evidence obtained through the search would have been subject to suppression. See United States

v. Stephens, 764 F.3d 327, 335 (4th Cir. 2014) (“The exclusionary rule ‘generally prohibits the

introduction at criminal trial of evidence obtained in violation of a defendant’s Fourth Amendment

rights[.]’”) (quoting Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 359 (1998)).

Suppression of the quantities of heroin found in the backpack would have certainly increased the

likelihood of acquittal at trial. Thus, the possibility that stronger recollection by TFO Lilly would

have helped Alabi’s defense is sufficient to show prejudice associated with the officer’s fading

memory.

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Additionally, Alabi claims prejudice based on the loss of certain physical evidence seized

during his encounter with law enforcement on January 21, 2017. Photos of the physical items

recovered from the backpack were taken, and the photos remain available. But the black plastic

bag in which individually wrapped pellets of heroin were found, the packaging material itself, and

other items recovered from the backpack are no longer available for fingerprint or DNA analysis.

Special Agent James testified that he would have taken custody of the plastic bag and placed it in

FBI’s evidence control unit, Tr., May 19, 2025, at 50:19–51:5, but he was not able to remember

whether the plastic bag was retained, id. at 67:4–9. The Court attributes this lack of recollection to

the passage of several years.

Notably, chemical analysis reports issued by the Drug Enforcement Administration

(“DEA”) for the heroin found in the backpack state that the three exhibits of “[o]riginal packaging”

for the substances were “separated and returned to FBI for latent print examination.” ECF No. 51-

5 at 1–3. Another DEA report includes the remark, “Conduct laboratory analysis [for the suspected

heroin] and forward packing to FBI laboratory for fingerprint analysis.” Id. at 4. According to

these DEA reports, the substances were submitted to the DEA lab for chemical analysis on

February 22, 2017. Id. The Court has been presented with no evidence that the black plastic bag

and packaging material were ever submitted for fingerprint analysis. Today, the items are lost and

unavailable for any forensic examination. It is not clear from the testimony presented at the

motions hearing when and how the physical items were lost. The Court can only attribute the loss

of these items, and the lack of information about when or how they were lost, to the passage of

time.

Alabi contends that fingerprint and DNA analyses of the lost materials would support his

contention that he did not touch and was unaware of the contents of the backpack he was found

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carrying. The Court agrees and finds that even negative fingerprint and DNA results from the items

would tend to support Alabi’s defense. Therefore, the Court finds sufficient prejudice based on

Alabi’s inability to examine the lost physical items to weigh in his favor on the fourth Barker

factor.

Finally, Alabi claims that he is prejudiced by the loss of footage from surveillance cameras

installed on the scene of his encounter with law enforcement in 2017. At the motions hearing,

Angela Valdez, an investigator for the defense, testified that she went to the travel plaza in March

2025 and observed surveillance cameras installed at the location. At least one of the cameras was

located in a place where it could have captured Alabi’s encounter with law enforcement on January

21, 2017. Valdez spoke with a manager at the facility who told her that the camera was installed

and operational in 2017. She testified that the manager told her that footage from the surveillance

cameras would have been preserved for a period between 30 and 90 days. The manager himself

did not testify or submit an affidavit.

The Court finds Valdez’s testimony inadequate to show substantial prejudice based on the

loss of surveillance footage. First, Alabi cannot carry his burden with hearsay regarding the

operation of the surveillance system in 2017. 9 Second, the Court is left to speculate whether the

lost surveillance footage would have aided the defense in any way. Alabi offers no testimony or

affidavit as to what the footage would have shown if it remained available.

Still, Alabi has sufficiently demonstrated prejudice based on the loss of recollection by the

government’s law enforcement witnesses and loss of physical evidence to the passage of time. It

is important to note, however, the Supreme Court’s holding in Doggett that “consideration of

9
The government lodged a hearsay objection to Valdez’s testimony about what she learned from the
manager at the travel plaza. The Court permitted the testimony to proceed to determine whether there was
a non-hearsay source of the investigator’s information about the operation of the surveillance system in
2017. There was none.

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prejudice is not limited to the specifically demonstrable, and . . . affirmative proof of particularized

prejudice is not essential to every speedy trial claim.” 505 U.S. at 655. The Court noted 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.’” Id. (quoting Barker,

407 U.S. at 532). Therefore, “excessive delay presumptively compromises the reliability of a trial

in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice

cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part

of the mix of relevant facts, and its importance increases with the length of delay.” Id. at 655–56

(citing Loud Hawk, 474 U.S. at 315). Thus, to the extent that Alabi has failed to demonstrate that

lost testimony and lost physical evidence actually impaired his defense, the length of delay in this

case—spanning more than five and a half years since the Indictment was filed, and eight and a half

years since the government’s discovery of the alleged crime—supports a presumption that the

delay caused prejudice to the defense.

In sum, the Court finds that the fourth Barker factor weighs in favor of finding a speedy

trial violation in this case based on the faded recollections of the law enforcement witnesses who

testified at the motions hearing and the loss of physical evidence presently unavailable for forensic

examination.

E. Balancing the Factors

None of the four Barker 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.” Barker, 407 U.S. at 533. A court must

engage in the “difficult and sensitive” process of balancing the factors and do so “with full

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recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.”

Id.

Here, the first, second, and fourth Barker factors weigh in favor of finding a speedy trial

violation, but the third factor weighs against such a finding. The Court finds that the combined

weight of the first, second, and fourth factors outweighs the third factor. Regarding the third factor,

the Barker Court did state that a “failure to assert the right [to a speedy trial] will make it difficult

for a defendant to prove that he was denied a speedy trial.” 407 U.S. at 532. The Court declined to

hold, however, “that there may never be a situation in which an indictment may be dismissed on

speedy trial grounds where the defendant has failed to object to continuances.” Id. at 536. For

instance, “[t]here may be a situation in which the defendant was represented by incompetent

counsel, was severely prejudiced, or even cases in which the continuances were granted ex parte.”

Id. Here, not only was the potential prejudice from law enforcement witnesses’ lack of recollection

severe in that it weakened Alabi’s ability to demonstrate a lack of probable cause for the search of

the backpack, but the length of delay in this case is longer than that at issue in Barker, and most

of the delay is not attributable to Alabi’s acquiescence. Official negligence accounts for six of the

eight and a half years that have passed since the government’s discovery of the two-day drug

trafficking conspiracy charged in this case. And a substantial portion of the post-indictment delay

is owed to FBI’s gross negligence in failing to secure Alabi’s arrest after receiving multiple

notifications that he resided in Illinois.

Doggett, again, is instructive. There, the Supreme Court held that the weight accorded

official negligence in the speedy trial analysis “compounds over time as the presumption of

evidentiary prejudice grows.” Doggett, 505 U.S. at 657.

[The Court’s] toleration of such negligence varies inversely with its
protractedness . . . and its consequent threat to the fairness of the

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accused’s trial. Condoning prolonged and unjustifiable delays in
prosecution would both penalize many defendants for the state’s
fault and simply encourage the government to gamble with the
interests of criminal suspects assigned a low prosecutorial priority.

Id.

Here, as in Doggett, Alabi “would have faced trial 6 years earlier than he did but for the

Government’s inexcusable oversights.” Id. While it is true that, unlike Alabi, the defendant in

Doggett promptly asserted his right to a speedy trial, the government’s culpability for the six-year

delay at issue in Doggett was lower than that in the instant case. In this case, the investigating

agency took even fewer steps than those taken in Doggett to determine the defendant’s location

and secure his arrest. See Doggett, 505 U.S. at 649 (in addition to placing Doggett’s name in NCIC,

the case agent notified U.S. Customs stations about Doggett’s arrest warrant and, upon discovering

that Doggett had been arrested in Panama, unsuccessfully sought cooperation from Panamanian

authorities to secure Doggett’s return to the U.S.). And as time passed in the instant case and the

presumption of evidentiary prejudice increased, the government’s culpability for the delay also

increased. What may have started as mere inattentiveness by the government became more

culpable when, in August 2021, the case agent began receiving notices about Alabi’s location and

took no responsive action.

The Court notes again that the imprecise nature of the Sixth Amendment right to a speedy

trial calls for careful balancing of the factors identified in Barker “with full recognition that the

accused’s interest in a speedy trial is specifically affirmed in the Constitution.” 407 U.S. at 533.

Here, the Court finds that the balance strikes in favor of finding that Alabi’s Sixth Amendment

right has been violated. Accordingly, the Indictment must be dismissed.

30
Case 1:20-cr-00072-MJM Document 103 Filed 06/06/25 Page 31 of 31

III. CONCLUSION

For reasons stated herein, the defendant’s Motion to Dismiss Due to Violation of Sixth

Amendment’s Right to Speedy Trial (ECF No. 45) is granted. The Indictment is dismissed. All

remaining motions are denied as moot.

6/6/25 /S/
Date Matthew J. Maddox
United States District Judge

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