United States District Court, E.D. Washington
ORDER DENYING MOTION TO DISMISS
FREMMING NIELSEN SENIOR UNITED STATES DISTRICT JUDGE.
evidentiary hearing was held March 28, 2019. The Defendant,
who is in custody, was present and represented by Adam
Pechtal; Assistant United States Attorney Russell Smoot
represented the Government. The Court heard testimony from
Richard Meyer, Kevin Currie, Paterno Valdenor, Matthew
Cordova, Mario Tovar, Scott Hershey, and Defendant.
Co-Defendants Fowler and Thompson were also present and
represented by counsel, Richard Mount and Stanley Corbit for
Fowler, and Ronald Van Wert for Thompson.
Moore argues that the case against her should be dismissed
for speedy trial violations. In evaluating a case for
violation of the Defendant's speedy trial rights the
Court must examine both the Speedy Trial Act as well as the
whether any delay is constitutionally reasonable. According
to the Speedy Trial Act, the trial clock began to run in this
case on August 29, 2018, the date of Ms. Moore's initial
appearance and arraignment.
In any case in which a plea of not guilty is entered, the
trial of a defendant charged in an information or indictment
with the commission of an offense shall commence within
seventy days from the filing date (and making public) of the
information or indictment, or from the date the defendant has
appeared before a judicial officer of the court in which such
a charge is pending, whichever date last occurs.
18:3161(c)(1). The original trial setting was well within the
70 days of Ms. Moore's initial appearance. The Court
continued the trial on motion of the Defendant twice, each
time making findings that a continuance was required to serve
the ends of justice. Consequently, there is no violation of
the Speedy Trial Act.
only must the delay be justified by the Speedy Trial Act, any
delay in trial date must also be constitutionally
permissible. To determine whether the delay is reasonable,
the Court makes "four separate inquiries: whether delay
before trial was uncommonly long, whether the government or
the criminal defendant is more to blame for that delay,
whether, in due course, the defendant asserted his right to a
speedy trial, and whether he suffered prejudice as the
delay's result." Doggett v. United States,
505 U.S. 647, 651 (1992).
delay from the Indictment to the date of Defendant's
arrest was uncommonly long. The Indictment was filed on
January 25, 2013; Defendant's initial appearance was held
on August 29, 2018. Over five years elapsed between the
Indictment and Defendant's appearance in the district.
the Government could have been more dogged searching for
Defendant, the Defendant is more to blame for the delay.
Dogget requires that that Government not exhibit
negligence in apprehending a fugitive defendant. However,
"[t]here is no requirement that law enforcement
officials make heroic efforts to apprehend a defendant who is
purposefully avoiding apprehension." United States
v. Sandoval, 990 F.2d 481, 485 (9th Cir. 1993) (internal
citation omitted). "A true fugitive, whose location is
unknown, or who is successfully resisting government efforts
to bring him into the jurisdiction, will not be able to
obtain dismissal of an indictment. This is as it should be.
Otherwise, the courts would be sanctioning the playing of
games by fugitives." United States v. Salzmann,
548 F.2d 395, 404 (2d Cir.1976)
should have been aware that a there was an outstanding
warrant for her arrest. Law enforcement executed simultaneous
search warrants for many of the 62 defendants in the
Indictment, including Defendant Moore's residence. Though
Defendant Moore was not home at the time of the search, the
officers executing the search warrant left paperwork behind
at the Defendant's home. Several defendants, including
Defendant Moore, were members or affiliates of the Eight Trey
Gangster Crips. In the days following the take down, officers
also searched places where the Eight Treys were known to
congregate. They questioned many people to track down all
fugitives. Lieutenant Meyer testified that every Eight Trey
member or affiliate he interviewed was aware of the
Indictment, but many were not forthcoming with information
helpful to finding fugitives. He used social media to attempt
to gather leads about Defendant Moore's whereabouts and
forwarded the leads to the United States Marshals Service.
Deputy Marshal Paterno Valdenor testified that he was
responsible for finding Defendant Moore. He followed up on
leads provided to him and developed new leads but did not
locate her. He searched multiple addresses in the L.A. area,
pulled records of family members, searched phone records and
cultivated several informants. One of the informants provided
fruitful information and deputies located Defendant Moore
visiting her grandmother in senior citizen housing in 2015,
only to have Defendant Moore flee when deputies attempted to
arrest her. Despite continued efforts to locate Defendant
Moore, she evaded law enforcement detection until L.A.P.D.
officers arrested Defendant Moore on November 8, 2016, for
suspicion of robbery following a high speedy chase.
delay from November 8, 2016, until her initial appearance in
this district is reasonable as Defendant had been arrested
and convicted in California and the state case was pending
for that period. Defendant is still serving time on her state
sentence, though a writ brought her into Federal custody
following conclusion of the state case. Once in Federal
custody, Defendant requested a continuance on more than one
occasion, waiving her right to a speedy trial.
suffered some prejudice from the lengthy delay, but because
the delay resulted from her attempts to elude capture rather
than governmental negligence, any prejudice suffered does not
justify dismissal of the Indictment. Had Defendant Moore been
arrested at the same time as co-Defendants, the evidence
would have been fresher, and she could have been involved in
litigating the myriad of legal issues previously addressed in
this case. The age of the evidence and previously decided law
of the case prejudices Defendant Moore to some extent.
However, because the Court finds that the delay resulted from
Defendant's decision to elude, she must bear the brunt of
the hearing, the Government submitted materials and a brief
ex parte for the Court's review to ensure that
no Henthorn materials required disclosure. Upon
in camera review, the Court determines that no
disclosures are required. The Court has reviewed the file and
Motions and is fully informed. Accordingly, 3
IS ORDERED that Defendant N. Moore's Motion to
Dismiss for Violation of Her Sixth Amendment Right to Speedy
Trial, filed March 15, 2019, ECF ...