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United States v. Russell

United States District Court, D. Nebraska

August 15, 2017

UNITED STATES OF AMERICA, Plaintiffs,
v.
ALAN RUSSELL Defendants.

          FINDINGS AND RECOMMENDATION

          Susan M. Bazis United States Magistrate Judge.

         This case involves a robbery of a U.S. Bank that occurred on April 30, 2014. Defendant Alan Russell (“Defendant”) was indicted for this bank robbery on August 16, 2016. Defendant claims he has suffered actual prejudice from the approximate 2 year and 4 month delay between the commission of the crime and the indictment. Defendant claims he was prejudiced due to lost evidence and the failed memory of a witness. Defendant has filed a motion requesting that the charges levied against him in the indictment be dismissed. (Filing No. 69.) Defendant argues that pre-indictment delay violated his rights under the Due Process Clause of the Fifth Amendment.

         The Court held an evidentiary hearing on May 15, 2017. Defendant was present with his attorney, Mark Bubak. The United States was represented by Assistant United States Attorneys Russell Mayer and Susan Lehr. The Court heard testimony of Agent John Hallock (“Agent Hallock”) and James Thomas, Sr. (“Thomas”). The Court received Exhibit 1 into evidence, as well as Exhibits 101 through 113. (Filing No. 84.) A transcript (TR.) of the hearing was prepared and filed on June 15, 2017. (Filing No. 99.) This matter was deemed fully submitted for disposition. Defendant then filed a Notice of Intent to Present Further Evidence regarding the Motion to Dismiss on June 30, 2017. (Filing No. 104.) The Court held a hearing on the Notice on July 26, 2017. A transcript of the second hearing was prepared and filed on August 2, 2017. (Filing No. 114).

         BACKGROUND

         Defendant's brother, Aaron Russell, was arrested on May 30, 2014 for allegedly robbing the Bank of Bennington (“Bennington robbery”) on May 30, 2014. (TR. 18.) When Aaron Russell was interviewed by law enforcement, he implicated himself, Lavonte Prince (“Prince”), Lance Bartling, Jr. and Jordan Gregory in the robbery. In the interview, Aaron Russell described what Price was wearing and the weapon Prince was carrying during the Bennington robbery. Specifically, Aaron Russell stated that Prince was dressed in blue, and carrying an eight-inch pellet gun. (TR. 24.) The clothing and weapon description given by Aaron Russell as to Prince during the Bennington robbery was similar to what an individual was wearing and the weapon the person was carrying in a U.S. Bank robbery that occurred on April 30, 2014. (TR. 65.)

         On July 7, 2014, Aaron Russell was interviewed and asked about the U.S. Bank robbery. Law enforcement showed Aaron Russell 14 surveillance photographs of the suspects in that robbery. (TR. 64.) Aaron Russell stated he could not identify any of the bank robbers and denied any involvement in the U.S. Bank robbery. (TR. 26, 47, 64.) Law enforcement interviewed Aaron Russell again on March 24, 2015. During the interview, he admitted that he robbed the U.S. Bank with Defendant and Marcus Sanders (“Sanders”). (TR. 48-49.) Aaron Russell identified Defendant as the person wearing the dark hoodie and carrying the long-barreled pellet gun in the U.S. Bank robbery.

         Agent Hallock testified at the evidentiary hearing that when the Bennington robbery occurred, the Omaha Police Department crime lab processed the scene. (TR. 32.) Agent Hallock stated that it is normal police procedure to obtain a video of an incident if one is available. (TR. 31-33.) He further testified that it is normal procedure for the Omaha Police Department crime lab to book all evidence received. (TR. 32-36.) In this case, there were photographs and a disk with approximately 45 photographs booked into evidence. (TR. 33-36.) Agent Hallock testified that police never possessed a video of the robbery at the Bank of Bennington. (TR. 33-36.) Agent Hallock stated that he does not know if there ever was a video of the robbery. (TR. 38, 66.) Agent Hallock testified that he contacted the Bank of Bennington earlier this year to determine if the Bank could obtain a video of the robbery, but he was told it would not be possible. (TR. 31-32.)

         Agent Hallock further testified that when Aaron Russell was interviewed on March 24, 2015, and implicated Defendant and Sanders in the U.S. Bank robbery, Defendant and Sanders were not prosecuted because he needed to corroborate the information. (TR. 49, 68.) Agent Hallock stated that he tried to locate Sanders, but Sanders was no longer in Omaha. (TR. 49). Agent Hallock also contacted Defendant two days after Aaron Russell implicated him. However, Defendant did not want to speak to him. (TR. 61.) Agent Hallock testified that he was finally able to interview Sanders on August 3, 2016. At that time, Sanders admitted to participating in the U.S. Bank robbery. He also implicated Defendant and Aaron Russell as being involved in the robbery. (TR. 49-50, 54.) Defendant was indicted and charged with the U.S. Bank robbery on August 16, 2016. (TR. 54-55.)

         ANALYSIS

         A defendant claiming a due process violation for pre-indictment delay must establish: (1) the delay resulted in actual and substantial prejudice to the presentation of his defense; and (2) the government intentionally delayed the indictment either to gain a tactical advantage or to harass him. United States v. Jackson, 446 F.3d 847 (8th Cir. 2006); United States v. Grap, 368 F.3d 824, 829 (8th Cir. 2004); United States v. Sprouts, 282 F.3d 1037, 1041 (8th Cir. 2002). A court will only inquire into the reasons for delay where actual prejudice has been established. United States v. Gladney, 474 F.3d 1027, 1030-31 (8th Cir. 2007). “To establish actual prejudice, a defendant must identify witnesses or documents lost during the delay period.” Id. at 1031. “[A]ctual prejudice cannot be established by defendant's speculative or conclusory claims of possible prejudice as a result of the passage of time.” Id.The defendant bears the burden of showing that the lost testimony or information is not available through other means. Id.

         Defendant maintains that he was prejudiced by pre-indictment delay because law enforcement and/or the government lost the video of the Bennington robbery. Although Defendant is not charged with the Bennington robbery, he asserts that one of the individuals involved in that robbery was described as wearing similar clothes and carrying a similar weapon to the individual (later identified as Defendant) involved in the U.S. Bank robbery. Essentially, Defendant asserts that the Bennington robbery video will help him show that Prince, rather than Defendant, was the third robber in the U.S. Bank robbery. Defendant claims that the pictures from the Bennington robbery were poor quality and that the video would better show what transpired.

         Defendant's argument on this point fails, however. The record in this matter shows that law enforcement and the government never possessed a video of the Bennington robbery. The only thing law enforcement and/or the government possessed were photos, which have all been turned over to Defendant. In fact, there is absolutely no evidence that the Bennington robbery was even videotaped. Agent Hallock testified that he does not know if a video existed and Defendant has not presented any evidence that a video existed. Therefore, Defendant has not met his burden regarding this issue.

         Defendant also contends he has been prejudiced by the loss of the video of Aaron Russell's May 30, 2014 interview. At Defendant's request, the Court held an additional hearing on July 26, 2017, largely pertaining to this interview. All parties were present and Defendant offered exhibits 101 and 102, which were received. Exhibit No. 101 is Federal Bureau of Investigation Report by Agent Hallock. The report is a synopsis of his interview with Aaron Russell that occurred on May 30, 2014. The report indicates that the interview was audio and video recorded. Exhibit No. 102 is a Omaha Police Department Supplementary Report by Officer Alfred Orsi (“Officer Orsi”). The report deals with Officer Orsi's attempts to obtain the audio and video recording of Aaron Russell's May 30, 2014 interview. Officer Orsi was unable to retrieve the audio and video recordings of the interview because it had been erased. According to Exhibit No. 102, the interview was erased because all four suspects in the Bennington robbery plead guilty, and no request was made to download the interview. Officer Orsi also checked personal records, files and his computer for a copy of the interview. However, Officer Orsi could not locate a copy. Defendant argues that this loss of evidence strengthens his position that the indictment should be dismissed. The Court finds Defendant's argument unpersuasive.

         Aaron Russell's May 30, 2014 interview pertains to the Bennington robbery. Defendant was not charged in that robbery. Agent Hallock has his notes from the interview and there is a synopsis report from the interview. The notes and report reveal that Aaron Russell did not discuss the U.S. Bank robbery during the interview. Defendant has not shown that he has been prejudiced by the loss of the video because both officers involved in the interview are available to testify. Moreover, the Court is unable to conclude that the destruction of this interview was intentional, or done to gain a tactical advantage or harass Defendant. The explanation as to ...


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