United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR SENIOR UNITED STATES DISTRICT JUGDE.
is a motion by the defendant, filed July 30, 2019, to dismiss
the indictment for a violation of his Sixth Amendment right
to a speedy trial. The government responded in opposition on
July 31, 2019, and a hearing was held on August 7, 2019, at
which the United States appeared by John J. Frail, Assistant
United States Attorney, and the defendant, Ricky Walker,
appeared in person and by his counsel, Lorena E. Litten,
Assistant Federal Public Defender.
facts giving rise to this motion are, in all pertinent
respects, undisputed. On February 20, 2014, a federal grand
jury returned a single-count indictment charging the
defendant with knowingly and intentionally distributing
quantities of oxycodone and oxymorphone, in violation of 21
U.S.C. § 841(a)(1). ECF # 1. As noted on the record of
the hearing, the charges in the indictment resulted from a
November 2, 2012 controlled buy wherein the defendant sold
illicit drugs to an unbeknownst-to-him undercover police
officer; lab tests of the drugs confirmed them to be
oxycodone and oxymorphone, both Schedule II controlled
substances. The indictment was filed under seal, and a
warrant for the defendant's arrest was issued the same
day. ECF # 4. Thereafter, law enforcement took the following
actions in an effort to locate and apprehend the defendant:
1. On February 21, 2014, the defendant's name was entered
into the National Crime Information Center
(“NCIC”), a database shared among federal and
state law enforcement agencies. Resp., ECF # 19 at 1.
2. On February 26, 2014, the United States Department of
Justice Drug Enforcement Agency (“DEA”) engaged
with two potential known residences of the defendant: 1416
Post Oak Lane and 90 Toomer Lane, each in Sanford, North
Carolina. Gov. Ex. 1, ECF # 24. The investigating agents did
not encounter the defendant, but spoke with his relatives who
were at each of the locations. Id. The agents
informed the relatives that the defendant was wanted by law
enforcement. Id. A man representing to be the
defendant's attorney shortly thereafter contacted the
agents by telephone. Id. An agent explained the
situation to the attorney, who agreed to attempt to speak
with the defendant and convince him to turn himself in.
Id. The defendant was not heard from.
3. A more recent address for the defendant was uncovered in
June 2014 in Detroit, Michigan, where the United States
Marshals Service Detroit Fugitive Apprehension Team attempted
to locate him. Resp., ECF # 19 at 2. The defendant was not
present at the address, but the investigating agents informed
acquaintances of the defendant who were discovered at the
residence that the defendant was wanted by law enforcement.
Id. The acquaintances informed the agents that the
defendant lived elsewhere in Detroit, but did not provide an
address. Id. The defendant was not heard from.
4. On two separate occasions, the most recent of which
occurred on May 26, 2017, the defendant was featured on a
television program called “Detroit's Most Wanted,
” airing in the greater Detroit area. Id.
Shortly thereafter, an anonymous tip directed law enforcement
to 12510 Kilbourne Street in Detroit, where the tipster
claimed the defendant was staying. Deputy United States
Marshals engaged the residence and spoke with an individual
who lived there, who advised that the defendant had
previously resided there, but that she did not know his
current location. Id. at 3.
5. On June 19, 2017, the United States Marshals Service
obtained a search warrant to uncover the dialing, routing,
addressing, and signaling information associated with a
Facebook profile believed to belong to the defendant. Mot.
these attempts proved fruitful, and the defendant was finally
apprehended on April 24, 2019, in Durham, North Carolina.
Since then, the defendant has remained in custody in the
Southern District of West Virginia.
7, 2019, the defendant filed a motion, pro se, to have his
indictment dismissed for, inter alia, a violation of his
Sixth Amendment right to a speedy trial. Upon receiving
counsel, the defendant filed the instant motion to dismiss,
contending that the five-year delay between his 2014
indictment and 2019 arrest violates his right to a speedy
court considers four factors when determining whether a
speedy trial violation has occurred: the “[l]ength of
delay, the reason for the delay, the defendant's
assertion of his right, and prejudice to the
defendant.” Barker v. Wingo, 407 U.S. 514, 530
first factor, the length of the delay, serves two functions.
As described by the Fourth Circuit:
First, it operates as a preliminary requirement: It is
unnecessary to conduct an analysis of a speedy trial claim
unless the defendant first demonstrates “that the
interval between accusation and trial has crossed the
threshold dividing ordinary from ‘presumptively
prejudicial' delay.” Once this hurdle is overcome,
the length of delay is relevant to the remainder of the
speedy trial analysis because “the presumption that
pretrial delay has prejudiced the accused intensifies over
United States v. Frith,
181 F.3d 92 (4th Cir. 1999)
(internal citations omitted) (quoting Doggett v. United
States,505 U.S. 647 at 651-52). The five-year delay
here is sufficient to trigger the Sixth Amendment inquiry.
See United States v. Trotman,406 Fed.Appx. 799, 807
(4th Cir. 2011) (“Courts often have concluded that a
delay over one year is ‘presumptively