Case 1:15-cr-20189-RNS Document 34 Entered on FLSD Docket 10/18/2016 Page 1 of 5

United States District Court

for the
Southern District of Florida
United States of America,
Plaintiff
v.
Tamas Zafir,
Defendant.

)
)
) Criminal Case No. 15-20189-CR-Scola
)
)

Order Granting Defendants Motion to Dismiss

This Cause came before the Court upon Defendant, Tamas Zafirs, Motion
to Dismiss the Indictment (ECF No. 20) based on an alleged violation of Zafirs
Sixth Amendment right to a speedy trial. Zafir claims that the aggregate pre- and
post-indictment delays weigh heavily against the Government, thus giving rise to
a presumption of prejudice to Zafir. (Mot., ECF No. 20.) The Court has
considered the Motion, the Governments Response (ECF No. 23), Zafirs Reply
(ECF No. 26), Zafirs Supplement to Governments Oral Argument (ECF No. 30),
the Governments Response to the Supplement (ECF No. 33), the record, and the
relevant legal authorities. The Parties filed a Joint Status Report (ECF No. 28) in
which they agreed no evidentiary hearing was necessary. The Court heard oral
arguments on the Motion on October 5, 2016. For reasons set forth more fully
below, the Court grants the Motion (ECF No. 20).

1. Background
On March 24, 2015, the Government charged Zafir, co-defendant Nidal
Ahmed Waked Hatum, and two corporations by sealed indictment. The charges
against Zafir consist of one count of money laundering conspiracy, allegedly
occurring from January 2000 until February 9, 2009, and one count of bank
fraud, allegedly occurring from November 21, 2007, until February 9, 2009.
(Indictment, ECF No. 3.) Thus, Zafirs involvement in criminal activity ended in
early 2009. The indictment remained sealed until Waked was arrested in Bogot,
Colombia, on May 4, 2016. Upon the unsealing of the indictment, Zafir, through
counsel, immediately offered to surrender. The Government wanted to wait until
Waked was extradited to the United States before commencing court proceedings
against Zafir because it did not want to go through everything twice. Zafir did
not want to delay the case any further and, on July 20, 2016, Zafir surrendered
to authorities. In total, a little more than six years passed between the end of
Zafirs role in the conspiracy and the date of indictment, and sixteen months
passed between the date of the indictment and the date of arrest. Thus, a total of
eighty-nine months passed between the end of Zafirs participation in the
conspiracy and the date of his arrest.

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The Government attributes the pre-indictment delay to the long-term and

complex scheme of circular financial transactions at issue. Ultimately,
government investigators spent several years piecing together the often
difficult-to-obtain evidence required to understand and prove the charged
crimes. The Defendant does not contest the reasons for or length of the
pre-indictment delay. Rather, Zafir claims that the pre-indictment delay is
relevant when determining the issue of prejudice to Zafir from the
post-indictment delay.
The Government contends that the post-indictment delay resulted from
the overriding need to bring Waked, a wealthy and highly connected Panamanian
citizen who played a much larger role in the conspiracy, into the jurisdiction of
this Court. To this end, the Government notes several concerns: (1) the
Government needed to maintain the investigation and indictment secret in order
to preserve the chance of capturing Waked; (2) Panama likely would not extradite
Waked; (3) Waked could have used his high-level government connections to
block any efforts to extradite him; (4) Waked would not travel anywhere he was
likely to be arrested; and (5) arresting Zafir without first securing Wakeds
extradition would compromise the entire investigation.
Again, Zafir does not challenge the Governments reasons for the
post-indictment delay but does challenge the reasonableness of the length of
delay in light of those reasons.
The parties decided to forgo an evidentiary hearing in advance of the
hearing on the Motion and the Government has not challenged the facts as
presented in Zafirs Motion and Reply. Further, arguments presented by the
Government at the hearing do not constitute evidence. See, e.g., United States v.
Vernon, 593 F. Appx 883, 887 (11th Cir. 2014), cert. denied, 136 S. Ct. 333
(2015).

2. Legal Analysis
The Sixth Amendment to the United States Constitution provides that [i]n
all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.
Amend VI. Charges against a defendant who has been denied his constitutional
right to a speedy trial must be dismissed. Strunk v. United States, 412 U.S. 434,
440 (1973). The Court must evaluate four factors to determine whether a delay
constitutes an infringement on a defendants right to a speedy trial: (1) the length
of the delay; (2) the reason for the delay; (3) the defendants assertion of his
speedy trial right; and (4) the prejudice to the defendant. United States v. Ingram,
446 F.3d 1332, 1336 (11th Cir. 2006); see also Barker v. Wingo, 407 U.S. 514,
530 (1972). Further, if the first three factors all weigh heavily against the

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government, then the Court will presume the fourth factor, prejudice to the
defendant, without a showing of actual prejudice. Ingram, 446 F.3d at 1336.
A. Length of the delay
A delay exceeding one year constitutes a presumptively prejudicial delay.
Doggett, 505 U.S. 647, 652 (1992). Once the first factor triggers the speedy trial
analysis, it is appropriate to consider inordinate pre-indictment delay in
determining how heavily post-indictment delay weighs against the government.
Ingram, 446 F.3d at 1339. Here, the Government concedes that the
sixteen-month delay between the indictment and Zafirs voluntary surrender
meets the threshold delay to merit analysis of the other three factors. (Resp. 7,
ECF No. 23.) See Doggett, 505 U.S. at 652. But the Government opposes the
inclusion of the pre-indictment delay in the balancing test because the
Government barely crossed the threshold of post-indictment delay. This is not
the analysis the Eleventh Circuit requires the Court to conduct, and the
Government presented no contrary law to show that the Eleventh Circuit has
retreated from Ingram.
Under the facts of this case, the presumptively prejudicial post-indictment
delay requires the Court to consider the six-year pre-indictment delay. Thus, the
more than seven-year delay inures strongly against the Government.
B. Reasons for the delay
Because the prosecutor and the court have an affirmative constitutional
obligation to try the defendant in a timely manner the burden is on the
prosecution to explain the cause of the pretrial delay. Ingram, 446 F.3d at 1337
(internal citations, quotations, and ellipsis omitted). A court also must consider
whether a defendants actions contribute to any delay. Id.
Here, the Government notes that the delay in arresting Zafir was a
prosecutorial choice. (Resp. 8, ECF No. 23.) As such, the Government concedes
that Zafirs actions did not contribute to the delay. In fact, Zafir lived openly
under his own name in Broward County from February 2009when his
participation in the conspiracy endeduntil his surrender in July 2016.
The Government asserts that Zafir played only a minor role in the charged
offenses, while Waked was the big fish. For this reason, the Government chose
to delay Zafirs arrest in order to ensure Wakeds arrest before unsealing the
indictment. The Government further asserts that any effort to arrest Waked in
Panama would have been futile and would have destroyed any chances to arrest
him anywhere else. In fact, the Government insists it was required to wait until
Waked left Panama and travelled to Colombia in order to arrest him on May 4,
2016. (Response 89, ECF No. 23.) In his Reply, Zafir demonstrated in detail that
after the return of the indictment Waked travelled on seventeen international

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flights between Panama and Canada, China, and Colombia. (Reply 89, ECF No.
26.) On March 31, 2015, just one week after the return of the indictment, Waked
flew from Panama to Toronto, Canada for four days. On one of these flights
Waked even travelled to Colombia several months before his arrest.
For each flight that travelled over United States airspace, Waked was
required to register using a unique redress number provided by the Department
of Homeland Security. In this way, the Government was on advanced notice for
the majority of times that Waked travelled internationally. And yet, the
Government provided no evidence of any effort to arrest Waked either in United
States airspace or in his destination country, one of which (Canada) is our
closest geographical and political ally. If the Government intentionally chose not
to arrest Waked in Canada during the six times he traveled there prior to
December 2015 because they made a strategic decision to only arrest him in
Colombia, Waked traveled by international flight to Colombia for four days in
early February 2016 but was not arrested.
Further, the record shows that Waked attempted several times to obtain a
visa to enter the United States, including one attempt to travel here to so his
daughter, who suffered from a serious health issue, could receive medical
treatment in the United States. Each time, his request was deniedeven though
had it been granted as a lure, the Government could have arrested Waked in the
territory of the United States without the need to engage in an extradition
process in any foreign country.
The record also shows no due diligence on behalf of the Government to
employ any of these tactics to apprehend Waked as soon as possible after the
return of the indictment. The Governments lack of demonstrated effort
constitutes a strong component in evaluating the reasons for the delay. Doggett,
505 U.S. at 656 ([I]f the Government had pursued [the defendant] with
reasonable diligence from his indictment to his arrest, his speedy trial claim
would fail.). In United States v. Hayes, 40 F.3d 362 (11th Cir. 1994), the
Government made persistent and dogged efforts to prosecute the defendant.
Such efforts were lacking in this case.
At the hearing on the Motion, the Government admitted to knowing of
Wakeds travels and attempts to seek a United States visa. Essentially, the
Government argued that the Executive Branch has a great deal of expertise in
determining how best to arrest defendants like Waked. Based on that expertise,
the Government made a strategic decision to arrest Waked when and where he
was arrested. The Government noted at the hearing that it is not the province of
the court to speculate which method of securing Waked would have been
appropriate. Ironically, without any evidence or testimony to delineate the efforts
the Government made or to explain the factual circumstances supporting that

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strategic decision, the Court is left to speculate whether the Governments

reasons for the delay actually weigh in its favor. But, even if the reasons for
delay weigh in its favor, its failure to diligently effectuate those reasons does not.
The Court finds that, based on the record, the reasons for the delay in
arresting Zafira delay inextricably linked to the delay in arresting
Wakedweigh heavily against the Government. Doggett, 505 U.S. at 657
(Condoning prolonged and unjustifiable delays in prosecution would both
penalize many defendants for the states fault and simply encourage the
government to gamble with the interests of criminal suspects assigned a low
prosecutorial priority.).
C. Defendants assertion of his speedy trial right
[A] defendant has some responsibility to assert a speedy trial claim.
Barker, 407 U.S. at 529. Here, Zafir unquestionably asserted his rights to a
speedy trial. Zafir had no knowledge of the indictment until it was unsealed. He
lived openly in Broward County, and the Government presumably knew where to
locate him. (Mot. 23, 15, ECF No. 20.) Government agents found him in August
2008 when they served him with a subpoena for company records. From the day
after the indictment was unsealed, Zafir attempted to voluntarily surrender.
Soon after arraignment, Zafir filed the Motion. Without more, this factor weighs
heavily against the Government.
D. Prejudice to the defendant
Because the first three factors weigh heavily against the Government,
prejudice to Zafir is presumed. Ingram, 446 F.3d at 1336. Although prejudice is
presumed, the Court notes that the delay has prejudice Zafir. Shortly after Zafirs
participation in the conspiracy ended in February 2009, the business he
managed that was used in the criminal activity ceased operations and its records
were destroyed. Zafir is now sixty-eight years old and without business records
to rely upon, would be hard pressed to remember details from more than seven
years ago to present a defense in the case.

3. Conclusion
Zafir has shown that all four factors weigh in his favor. Id.; Barker, 407
U.S. at 530. Accordingly, the Court grants Zafirs Motion to Dismiss the
Indictment (ECF No. 20).
Done and Ordered in Miami-Dade County, on October 17, 2016.

__________________________
Robert N. Scola, Jr.
United States District Judge