United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
M. Bazis United States Magistrate Judge.
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.
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).
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.
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.
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.)
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.)
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.
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.
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.
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.
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 ...