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United States v. Walker

United States District Court, S.D. West Virginia, Charleston

September 4, 2019

UNITED STATES OF AMERICA
v.
RICKY WALKER

          MEMORANDUM OPINION AND ORDER

          JOHN T. COPENHAVER, JR SENIOR UNITED STATES DISTRICT JUGDE.

         Pending 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.

         The 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. Ex. B.

         None of 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.

         On June 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 trial.

         The 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 (1972).

         The 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 time.”

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 ...


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