USA v. Koon et al.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
United States of America, 	)
)
Plaintiff, 	) 	ORDER GRANTING MOTION
vs. 	) 	FOR RECONSIDERATION
)
Jerome Wesseh Koon, Jr., 	) 	Case No. 3:21-cr-183
)
Defendant. 	)
______________________________________________________________________________
Defendant Jerome Wesseh Koon, Jr. moves for reconsideration of an order denying his
motion to dismiss. Doc. 148. The United States opposes the motion. Doc. 150. For the reasons
below, the motion is granted, and the indictment is dismissed without prejudice.
I. 	BACKGROUND
Koon was federally indicted in an alleged multi-defendant drug conspiracy on September
15, 2021. Doc. 1. At the time of his federal indictment, he was also facing an attempted murder
charge in North Dakota state court. Koon was advised of the federal indictment, and the United
States chose to wait to pursue the federal charges until Koon’s state charges were resolved. After
his North Dakota case was resolved, the United States Drug Enforcement Agency (“DEA”)
requested a federal detainer on Koon. Doc. 119-6. The date of the detainer request was January
25, 2022. On the detainer form, Koon checked the box to demand a speedy trial within 180 days
under the Interstate Agreement on Detainers Act (“IADA”). Id.
When the initial motion to dismiss was denied, the record was unclear what happened to
the detainer after it was signed. There was no evidence it was delivered to the Court, the DEA (as
the requesting federal agency), or the United States Attorney’s Office, as required and as stated on
the detainer. Doc. 134 at 1-2. But now the record tells a different story—in this motion, Koon filed
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documentation that shows the North Dakota Department of Corrections sent the detainer to the
DEA via email. Doc. 148-1; Doc. 148-4. Given this new evidence, Koon moves for reconsideration
of the order denying his motion to dismiss.
II. 	LAW AND ANALYSIS
A motion for reconsideration “serves the limited function of correcting manifest errors of
law or fact or presenting newly discovered evidence.” Bradley Timberland Res. v. Bradley Lumber
Co., 712 F.3d 401, 407 (8th Cir. 2013) (cleaned up). Such motions are not “a vehicle to identify
facts or legal arguments that could have been, but were not, raised at the time the relevant motion
was pending.” SPV-LS, LLC v. Transamerica Life Ins. Co., 912 F.3d 1106, 1111 (8th Cir. 2019)
(quoting Julianello v. K-V Pharm. Co., 791 F.3d 915, 923 (8th Cir. 2015)). Nor may a motion for
reconsideration attempt “simple reargument on the merits.” Broadway v. Norris, 193 F.3d 987,
990 (8th Cir. 1999). The evidence of delivery of the detainer by North Dakota to the DEA is newly
discovered evidence, and reconsideration is appropriate.
Article III(a) of the IADA allows a prisoner to demand a speedy trial within 180 days. See
18 U.S.C. § 2, art. III(a). Dismissal is the remedy if the United States does not bring the prisoner
to trial within 180 days after receiving proper notice of the demand. See e.g., United States v.
Ward, 135 F. App’x 885, 886 (8th Cir. 2005). The operative question now is whether delivery of
the detainer (which included the speedy trial demand) to the DEA triggers the 180-day period.
The United States relies on Fex v. Michigan, 507 U.S. 43 (1993). In Fex, the United States
Supreme Court held “the 180-day time period in Article III(a) of the IAD does not commence until
the prisoner’s request for final disposition of the charges against him has actually been delivered
to the court and prosecuting officer of the jurisdiction that lodged the detainer against him.” 507
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U.S. at 52. If read in a vacuum, this seems to foreclose dismissal because no one disputes that the
detainer was not delivered to the Court or United States Attorney’s Office.
But facts and context matter, and the facts underlying Fex are quite different from the facts
of this case. In Fex, the defendant was in Indiana custody when Michigan requested a detainer. Id.
at 46. On September 7, 1988, Indiana authorities informed the defendant of the detainer, and he
gave them his speedy trial demand. Id. On September 22, Indiana authorities mailed the demand
to Michigan, and on September 26, 1988, the prosecuting attorney and the court received it. Id.
Trial on the Michigan charges began on March 22, 1989—or 177 days after his speedy trial
demand was delivered to the Michigan officials, and 196 days after he gave the demand to the
Indiana authorities. Id. If the clock began when the defendant gave his demand to Indiana
authorities, then dismissal was necessary. But if the clock began when the Michigan officials
received the demand, then his trial properly began within 180 days. So, the Supreme Court held
that the 180-day clock did not start until the prosecuting attorney and the court received the
detainer. Id. at 52. Of primary concern to the Supreme Court was avoiding an outcome where the
prosecuting state was punished as a result of the other state’s failure to forward the paperwork in
a timely manner. Id. at 49-51.
The underlying rationale and concern of the Supreme Court in Fex is key:
Indications in the text of Article III confirm, in our view, that the receiving State’s
receipt of the request starts the clock. The most significant is the provision of
Article 	III(b) 	requiring 	the 	warden 	to 	forward 	the 	prisoner’s 	request 	and
accompanying documents by registered or certified mail, return receipt requested.
The IAD thus provides for documentary evidence of the date on which the request
is delivered to the officials of the receiving State, but requires no record of the date
on which it is transmitted to the warden (assuming that is to be considered the act
of “causing”).
Id. at 43 (cleaned up and emphasis added). Here, the receiving “State” is the federal government,
and the DEA is part of the federal government. The North Dakota Department of Corrections
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“caused” the detainer and speedy trial demand “to be delivered” to the requesting federal agency—
the DEA. And it is apparent from the record that there was some notification to the United States
Attorney’s Office of the federal detainer because the United States filed for a writ of habeas corpus
ad prosequendum on January 27, 2022 (Doc. 13), just two days after the detainer was signed. This
is factually distinguishable from Fex because the prosecuting state (here, the United States)
received the detainer and speedy trial demand from North Dakota.
United States v. Daily, 488 F.3d 796 (8th Cir. 2007), is similarly distinguishable. In Daily,
the state prisoner was facing federal charges and gave written notice to prison officials of his
speedy trial demand, but state officials failed to forward the demand to the United States. 488 F.3d
at 801. Again though, Daily is factually analogous to Fex, and because the demand was not
delivered to the United States, dismissal was not appropriate. Id. But Daily, like Fex, does not
consider a situation where the detainer was delivered to the receiving “State.”
Fex and Daily were controlling authority when there was no evidence that the prosecuting
authority received the IADA detainer and speedy trial demand. Koon’s new evidence that the DEA
did receive the detainer changes that analysis. There is also a concern that strictly applying Fex
and Daily to this case, without careful consideration of the factual differences, would perversely
incentive prosecuting federal agencies (like the DEA) to lose or fail to forward detainers as
required. That result harms defendants, who demand speedy trials timely and appropriately, to the
benefit of the United States as to prosecuting authority, even though it received the demand. That
outcome is contrary to the rationale and concern expressed in Fex. On the specific facts of this
case and given the new evidence of the United States received the IADA detainer and demand,
reconsideration is appropriate, and Koon’s motion is granted.
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The next question then is whether dismissal is with or without prejudice. Under the IADA,
a prisoner against whom a detainer has been lodged “shall be brought to trial within one hundred
and eighty [180] days after” the prisoner has given proper notice of his request for a speedy trial.
18 U.S.C. 2 § 2. Dismissal of an indictment may be with or without prejudice when the United
States is the receiving state. 18 U.S.C. 2 §§ 9(1)-(2). Three factors are generally used to make that
decision: (1) the seriousness of the offense; (2) the facts and circumstances leading to the dismissal;
and (3) the impact of re-prosecution. United States v. McKinney, 395 F.3d 837, 840 (8th Cir.
2005).
In considering the seriousness of the offense, the Eighth Circuit Court of Appeals looks to
the nature of the conduct charged and the potential maximum sentence. McKinney, 395 F.3d at
841. The conduct charged here is a large-scale drug conspiracy that resulted in serious bodily
injury and distribution of fentanyl that resulted in serious bodily injury. Doc. 8. The conspiracy
carries a potential maximum sentence of 20 years. On these facts, this factor favors dismissal
without prejudice.
In considering the facts and circumstances leading to dismissal, courts examine whether
there has been bad faith or a pattern of negligence from the Unites States. Id. There is no evidence
of bad faith or negligence. So, this factor also favors dismissal without prejudice.
Finally, as to the impact of re-prosecution, the focus is on whether the prosecution had an
improper motive and whether the defendant suffered prejudice. Id. at 841-42. There is no evidence
of an improper motive from the United States. As to prejudice, aside from his failure to receive a
speedy trial, Koon was already incarcerated because of his North Dakota state sentence. So, as
previously noted, any prejudice to Koon has been minimal. Doc. 134 at 6. This also favors
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dismissal without prejudice. On balance, all three factors weigh in favor of a dismissal without
prejudice.
III. 	CONCLUSION
The Court has reviewed the record, the parties’ filings, and the relevant legal authority.
Koon’s motion for reconsideration (Doc. 148) is GRANTED, his motion to dismiss is
GRANTED, and the indictment as to Koon is DISMISSED without prejudice.
IT IS SO ORDERED.
Dated this 4th day of June, 2024.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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