United States v. Boone ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal Action No. 05-427 (GK)
FILED
APR152(]10
C|ark. U.S. Distrlct & Bankruptcy
courts for me Dlstnct of Columbla
DONALD BOONE,
Defendant.
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MEMORANDUM OPINION
Defendant Donald Boone is charged in an indictment with two
counts of Unlawful Distribution of 5 Grams or More of Cocaine Base,
in violation of 21 U.S.C. §§ 84l(a)(l) and 84l(b)(l)(B)(iii). This
matter is presently before the Court on Defendant’s Motion to
Dismiss Indictment Because Defendant Has Been Denied His Right to
a Speedy Trial [Dkt. No. 7]. Upon consideration of the Motion,
Opposition, Reply, and, the entire record herein, and for the
reasons set forth below, the Motion to Dismiss Indictment is
granted.
I. Background
Defendant Boone allegedly engaged in sales of crack cocaine,
which were recorded on audio and/or video tapes, to a Special
Employee and an undercover officer of the Metropolitan Police
Department (“MPD”) on November l and November 8, 2005. A search
warrant was executed on November 30, 2005 for a residence which
Boone was observed entering to retrieve crack cocaine before the
November 8, 2005 sale. Boone was not present in the residence at
the time the warrant was executed, although multiple other
individuals were found there. A sealed bench warrant was issued
for Defendant Boone’s arrest on November 29, 2005, and a grand jury
returned an indictment under seal on December l, 2005,
At the time of his indictment, Defendant Boone was on parole
for a 1995 conviction for Unlawful Possession with Intent to
Distribute Cocaine in the Superior Court of the District of
Columbia, Case No. 1995-FEL-2285. Boone last spoke to his parole
officer, Dwayne Murray, on December l9, 2005, Because Murray was
unaware of the warrant for Boone's arrest, it was not discussed.
Boone did acknowledge to Murray that he knew that MPD was looking
for him and that they had kicked in his grandmother’s door, but
stated that he did not know why. Boone also told Murray that he
would go to the police after speaking with his lawyer, but never
did so. After he failed to report for an office visit with Murray
scheduled_ for December 29, 2005, Boone was deemed. a “loss of
contact,” and a parole warrant was issued for his arrest on March
l6, 2006.
The MPD’s efforts to arrest Boone on the criminal arrest
warrant consist of two acts of surveillance of Boone’s
grandmother’s residence in December 2005, distribution of Boone’s
photograph to patrol officers in the Fifth District, and at least
ten inquiries made to several confidential sources in the period
between late 2005 and 20l0. ln addition, Officer Harry Allen
conducted surveillance “on multiple occasions” of the neighborhood
in which Boone resided. Affidavit of Officer Harry Allen (EX. A to
Gov’t’s Opp'n). In the summer of 2008, Officer Allen conducted
surveillance of a location in Mary1and where a confidential source
reportedly had seen Boone, but did not find him. Einally, in
January 2010, a confidential source reported having seen Boone in
the area of his grandmother’s residence and, after conducting
surveillance in the area, Officer Allen finally spotted and
arrested Boone on February 15, 2010.
On March 26, 2010, Boone filed a Motion to Dismiss the
1ndictment, arguing that the more than four years of delay between
his indictment and arrest violate his Sixth Amendment right to a
speedy trial. The Government opposes the Motion on the grounds
that any delay is attributable to Boone, and therefore that no such
violation has occurred. All briefing was concluded by April 7,
2010, and the parties agreed that no evidentiary hearing is needed.
II. Standard of Review
Excessive delay in prosecuting a defendant after he is
indicted or arrested violates the SiXth Amendment right “[i]n all
criminal prosecutions, . . . to a speedy . . . trial.” U.S. Const.
amend. VI. See Doggett v. United States, 505 U.S. 647, 112 S. Ct.
2686, 120 L. Ed. 2d 520 (1992) (eight-and-a-half year delay between
indictment and arrest violated defendant’s right to a speedy
trial). 1n Barker v. Win o, 407 U.S. 514, 92 S. Ct. 2182, 33
L. Ed. 2d 101 (1972), the Supreme Court listed four factors to be
assessed in speedy trial right claims: the “[l]ength of delay, the
reason for the delay, the defendant’s assertion of his right, and
prejudice to the defendant.” Our Court of Appeals has explained
that “[n]one of the four 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.’” United States v. Tchibassa, 452 F.3d 9l8, 923 (D.C.
Cir. 2006) (quoting Barker, 407 U.S. at 533, 92 S. Ct. 2182)
(brackets omitted).
The first factor--length of delay--involves a two-step
inquiry. First, the accused must allege that the interval between
accusation and trial has crossed the threshold dividing ordinary
from “presumptively prejudicial” delay to trigger the speedy trial
analysis. Once the accused has made this showing, the court must
consider the extent of delay, with the understanding that the
presumed prejudice to the defendant intensifies over time. Dogget,
505 U.S. at 651.
The Court must also consider the reason the Government offers
for the delay and assess whether the Government or the defendant is
more to blame. Because “[a] defendant has no duty to bring himself
to trial,” however, the Government must at least pursue the
defendant with “reasonable diligence,” a standard that demands
“serious effort.” Doggett, 505 U.S. at 656; Barker, 407 U.S. at
531.
Next, although a defendant’s failure to demand his right to a
speedy trial weighs against him, when a defendant is ignorant of
his indictment, he “is not to be taxed for invoking his speedy
trial claim only after his arrest.” Doggett, 505 U.S. at 653-54.
Finally, when the Government has negligently failed to pursue the
defendant with reasonable diligence, prejudice may be presumed.
ld; at 657-58. In addition, any particularized prejudice that the
defendant can identify is also considered. ld;
III. Analysis
In this case, the Government concedes that the four-year delay
between Boone’s indictment and arrest is “presumptively
prejudicial”. The Court agrees. _§§ Gov’t's Opp’n at 6; QQgge;;,
505 U.S. at 652 n.1 (noting that post-accusation delay approaching
one year is generally presumptively prejudicial); United States v.
Fernandes, 618 F. Supp. 2d 62, 68 (D.D.C. 2009) (“A delay of more
than one year is ‘presumptively prejudicial’ and triggers the four
factor analysis.”). The Court also finds that a four-year delay
between indictment and arrest for a straightforward narcotics crime
is a considerably lengthy delay that exceeds the “bare minimum” for
“judicial examination of the claim.” Doggett, 505 U.S. at 652.
Thus, the first factor weighs in favor of Defendant.
In explaining the reason for delay, the Government argues that
Boone knew that MPD was looking for him in order to arrest him, and
that he made efforts to evade arrest, This argument is critical to
the Barker analysis: if Boone consciously sought to evade arrest,
not only would he be to blame for the delay, but his failure to
invoke his speedy trial rights during the four-year period would
also weigh against him.
The Government offers circumstantial evidence to establish
that the undercover narcotics investigation, as well as the
identity of MPD's Special Employee, became public knowledge in
Boone's neighborhood around. the time of his indictment, The
Government's evidence shows that several other individuals involved
in narcotics trafficking were arrested in late 2005, and that the
residence that Boone used to sell drugs was searched by MPD five
days after the November 25, 2005 sale. The Government also cites
Boone’s admission to his parole officer that he knew the police had
kicked in his grandmother’s door while looking for him, his
subsequent loss of contact with his parole officer, and the fact
that police efforts were unsuccessful in locating him during that
time.1
1 The Government also relies on the efforts of Dwayne
Murray, Defendant Boone’s parole officer, to locate Defendant in
December 2005, Gov’t’s Opp’n at 7. After checking the NC1S and
WALES databases in preparation for an office visit with Boone on
December 6, 2005, Murray spoke with MPD officers “involved in the
investigation of the defendant’s pending narcotics case.” ld4 at
3. MPD did not inform Murray of the arrest warrant, but advised
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Boone responds that he had no knowledge of the warrant for his
arrest, and that since 2005 he has been living at his grandmother’s
house, which is only one half block from the place where Officer
Allen eventually located and arrested him in 2010. Def.’s Reply at
3. Boone also alleges that the Government was fully aware of his
residence at that location, since (1) his commercial driver's
license, which was issued in 2004 and expired in 2007, was
registered to that address; and (2) he received. his Medicare
disability benefits and bank statements at that address. MPD
responds that it conducted surveillance of this residence “on at
least two occasions” in December 2005, but admits that officers did
him that Boone “may be involved in narcotics trafficking” and that
they wished to speak with him. ld; Murray informed Detective
William Witkowski that Boone had a scheduled office visit on that
same day--December 6, 2005--and Witkowski replied that he would
call Murray back. However, Witkowski never contacted Murray.
Defendant Boone did not attend the scheduled office visit.
Later that month, Murray conducted a home visit to the address
provided by Boone, which was not his grandmother’s residence.
Boone’s mother was present at the address provided to Murray, and,
after she told him that Boone was not present, Murray left
instructions for Boone to report for an office visit on December
19, 2005, Boone failed to report on that date, although, as
discussed above, he held a telephone conversation with Murray.
After the December l9, 2005 telephone conversation with Boone,
Murray mailed a certified letter to the above address instructing
Boone to report for an office visit on December 29, 2005, Again,
Boone failed to report. ld;
The Government argues that these facts support the inference
that Boone was actively seeking to evade arrest during this period.
However, despite the fact that Boone was not very reliable in
communicating with his parole officer, he had no legal obligation
to turn himself over to the police when he had only been informed
that MPD was “looking” for him and did not know an arrest warrant
had been issued for him.
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not return to the house in subsequent years or attempt to execute
the arrest warrant at that location, Gov't’s Opp’n at 2.
lt is the Government’s burden to establish the reason for
delay, Jackson v. Ray, 390 F.3d 1254, 1261 n.3 (10th Cir. 2004)
(noting that “every circuit court to address the question has held
that Barker places the burden to explain the delay on the State”
and collecting cases); Fernandes, 618 F.Supp.2d at 68, 72. While
the Government’s evidence is largely circumstantial, it does
support the inference that Boone was at least aware of some kind of
connection between MPD’s investigation and his own criminal
conduct.
However, the Government's evidence does not establish that
Boone had specific knowledge that a warrant--which remained sealed
throughout the four-year delay--had been issued for his arrest;
indeed, the fact that the indictment remained sealed makes it
somewhat less likely that Boone knew of its existence. The
Government's evidence also fails to establish that Boone took any
specific steps with the intent of evading arrest. Compare United
States v. Brown, 169 F.3d 144 (6th Cir. 1999) (government failed to
establish defendant’s knowledge of indictment through evidence that
defendant used aliases and fled from authorities), and Tchibassa,
452 F.3d at 923 (government established defendant’s knowledge where
record showed that defendant was informed of arrest warrant by
Interpol agents); United States v. Aquirre, 994 F.2d 1454, 1456
(9th Cir. 1993) (evidence that defendant sought continuance of
court appearance established his knowledge of pending charges).
Even if this Court were to conclude that there is evidence to
establish that Boone sought to evade arrest, the majority of the
blame lies with the Government for its failure to exercise
reasonable diligence in arresting Boone, 1n United States v.
Reynolds, 231 Fed.Appx. 629, 631 (9th Cir. 2007), the government
was found not to have exercised reasonable diligence when it “only
presented evidence of attempts to apprehend Reynolds during, at
most, six of the total fifty-six months of delay. During the other
fifty months, the most that can be said for the government is that
the warrant for Reynolds’s arrest was listed in the National Crime
1nformation Center (“NCIC”) database.”2
Significantly, the arrest warrant issued in this case was
apparently not entered into the NC1C or Washington Area Law
Enforcement (“WALES”) databases any time before January 30, 2006.
The Government’s evidence establishes that Murray, the Defendant's
parole officer, found no outstanding warrants or detainers after
checking the NCIC and WALES databases on December 6, 2005 and
2 NC1C is the primary nationwide database used by law
enforcement to determine whether any warrants have been issued for
an individual’s arrest. See United States v. Erenas-Luna, 560 F.3d
772, 775 n.2 (8th Cir. 2009). While entering a name into the
database does not on its own satisfy the Government’s reasonable
diligence obligation, see Fernandes, 618 F.Supp.2d at 70, it is a
routine step in alerting federal and state law enforcement
officials to the existence of an outstanding warrant, thus
facilitating prompt arrests.
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January 30, 2006. §ee Alleged Violation(s) Report from Dwayne
Murray, Community Supervision Officer, to the United States Parole
Commission (Jan. 30, 2006) (Ex. B to Govt.’s Opp'n). 1nstead, the
databases included a notation that two MPD officers wished to speak
with Boone, The Government has not indicated whether the arrest
warrant was ever entered into the databases after January 30, 2006.
Here, MFD relied chiefly on the efforts of one--and only one--
police officer to locate Defendant. Apart from the two acts of
surveillance in December 2005, Officer Allen's affirmative efforts
to locate Boone from 2006-2010 were largely limited to broad
surveillance of the neighborhood “on multiple occasions” and “at
least ten” inquiries of confidential sources. 1n the summer of
2008, two and a half years after the indictment, Officer Allen
reacted to a tip fran a confidential source regarding Boone’s
whereabouts. lt was not until nearly two more years had passed
that another such tip finally led to Boone’s arrest.
The Government has produced no evidence indicating that it put
forth “serious effort” to find and, arrest Boone, such as by
conducting a stake-out of the residences associated with him. §e§
Barker, 407 U.S. at 53l. The Government fails to indicate what, if
any, efforts were made to question the individuals arrested in
November 2005 as a result of MPD’s investigation to learn Boone’s
whereabouts. Similarly, the Government has produced no evidence
that it reached out to government agencies or other institutions to
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learn the address Boone was using to receive mail, which was sent
to his grandmother’s residence. See United States v. Akinsola, 57
F. Supp. 2d 455 (E.D. Mich. 1999) (no reasonable diligence where
government failed to contact other governmental agencies for
defendant’s updated address and defendant had applied for resident
alien cards, driver's licenses, and Social Security Cards). Given
these facts, and given the wide-ranging resources commanded by MPD,
the Court cannot conclude that the Government was reasonably
diligent in arresting Boone in the four years after his indictment.
With regard to the third factor, the defendant’s assertion of
his speedy trial right, the Government has failed to show that
Boone knew about his indictment--which, it must be remembered, was
sealed--before the February 2010 arrest. Mere awareness that the
police are looking for a person does not obligate that person to
affirmatively seek out the police to find out what, if any, problem
exists. §ee_ Barker, 407 U.S. at 527, 92 S.Ct. at 2190 (“A
defendant has no duty to bring himself to trial.”); Dickey v.
Florida, 398 U.S. 30, 50, 90 S. Ct. 1564, 1575 (1970); United States
v. Molina-Solorio, 577 F.3d 300, 306 (5th Cir. 2009) (“[T]he law
does not require [a defendant] to assume the existence of, and ask
for a speedy trial on, a charge he is not actually aware of.”).
Thus, the third factor weighs in Boone’s favor because he asserted
this right shortly after his arrest. Doggett, 505 U.S. at 653-54.
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Finally, the Government argues that “[g]iven the nature and
strength of the government’s evidence [which includes audio and
video tapes of Boone selling crack cocaine], he cannot reasonably
proffer facts demonstrating actual prejudice to his defense.”
Gov’t’s Opp’n at 10. The Supreme Court has identified three types
of prejudice that may be caused by excessive delay: “oppressive
pretrial incarceration, anxiety and concern of the accused, and the
possibility that the [accused’s] defense will be impaired by
dimming memories and loss of exculpatory evidence.” Doggett, 505
U.S. at 654, 112 S. Ct. 2686. The last form_ of prejudice--
impairment of the accused’s defense--is the most serious, as well
as the hardest to prove. lg;_ at 654-55 (“[E]xcessive delay
presumptively compromises the reliability of a trial in many ways
that neither party can prove or, for that matter, identify.”);
Fernandes, 618 F.Supp.2d at 72. As a result, prejudice is presumed
in cases where the delay exceeds one year and the Government has
failed to exercise reasonable diligence. In this case, defense
counsel has already indicated the difficulties he will face in
locating the individuals who were in the house where the search
warrant was executed in 2005,
Here, the delay exceeded four years and, as discussed above,
the Government failed to exercise reasonable diligence. Thus,
prejudice is presumed, and there is no need for Boone to
demonstrate actual prejudice to his defense. The Government has
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offered no evidence to rebut this presumption, and thus the fourth
factor also weighs in favor of Boone.
Because all four Barker factors weigh in Defendant's favor,
the Motion to Dismiss 1ndictment is granted.
IV. CONCLUSION
For the reasons set forth above, Defendant's Motion to Dismiss
1ndictment is granted. An Order will accompany this Memorandum
Opinion.
16 447/w 5
Aprii 15, 2010 Giad§§‘r<@ssi@r ' '
United States strict Judge
Copies to: attorneys on record via ECF
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