United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
M. Bazis United States Magistrate Judge
matter is before the Court on Defendant's Motion for
Dismissal (Filing No. 23). An evidentiary hearing
was held on October 22, 2018. Documentary evidence was
received, and oral argument was heard at the hearing. No.
reasons set forth below, the undersigned will recommend that
the motion be denied.
January 17, 2018, Defendant was indicted for conspiracy to
distribute heroin and methamphetamine. (Filing No.
1.) According to the indictment, the conspiracy
allegedly began on or about February 2, 2013, and continued
to January 9, 2018. (Filing No. 1.) The government
contends that the indictment stems from Defendant's
alleged use of other inmates' telephone privileges to
conspire with others to have drugs delivered to a federal
prison. The drugs at issue were found on September 29, 2014
in a package shipped to the federal prison. (Ex. 101.)
According to the discovery materials provided to Defendant,
the last telephone call claimed to have been made by
Defendant occurred on October 6, 2014. (Ex. 101.)
individual identified as the one responsible for arranging
for the mailing of the package was arrested on October 9,
2014. (Ex. 101.) He was indicted on October 20, 2014 in the
United States District Court for the District of Nebraska,
and subsequently pled guilty. He was sentenced to prison on
July 15, 2015. (Ex. 103.)
individual to whom the package was addressed, who was a
chaplain in the federal prison, pled guilty and was convicted
in the Eastern District of Texas for Bribery of a Public
Official. He was sentenced to a term of one year and one day
in prison on June 13, 2017. (Ex. 104.)
inmates whose identities were allegedly used by Defendant
were housed in the same federal prison as Defendant. Of these
six inmates, three are still in federal custody. (Ex. 102.)
Defendant remains in federal custody and has been in custody
at all relevant times.
contends that the indictment should be dismissed because the
government delayed bringing an indictment in an intentional
effort to gain a tactical advantage. A defendant claiming a
due process violation for pre-indictment delay has the burden
of showing that “(1) the delay resulted in actual and
substantial prejudice to the presentation of his defense; and
(2) the government intentionally delayed his indictment
either to gain a tactical advantage or to harass him.”
United States v. Jackson, 446 F.3d 847, 849
(8th Cir. 2006). A court will not inquire into the
reasons for delay until actual prejudice is shown. See
United States v. Gladney, 474 F.3d 1027, 1030-31
(8th Cir. 2007).
establish actual prejudice, a defendant “must identify
specific witnesses or documents lost during the delay and the
information they would have provided.”
Jackson, 446 F.3d at 851. The defendant “must
relate the substance of the testimony which would be offered
by the missing witnesses or the information contained in lost
documents in sufficient detail to permit a court to assess
accurately whether the information is material to the
accused's defense.” United States v.
Bartlett, 794 F.2d 1285, 1290 (8th Cir.
1986). The defendant also “carries the burden to show
the lost testimony or information is not available through
other means.” Gladney, 474 F.3d at 1031.
“In sum, the defendant must demonstrate that the
prejudice actually impaired his ability to
meaningfully present a defense.” Bartlett, 794
F.2d at 1290 (emphasis in original). “[A]ctual
prejudice cannot be established by [the] defendant's
speculative or conclusory claims of possible prejudice as a
result of the passage of time.” Gladney, 474
F.3d at 1031.
has failed to establish actual and substantial prejudice
caused by any pre-indictment delay. Defendant claims that
several witnesses are now unavailable because they have been
released from prison. However, Defendant has not indicated
what these witnesses would testify to, nor has he shown that
these individuals are, in fact, unavailable. There was no
testimony or other information provided at the evidentiary
hearing as to any efforts to locate these
individuals. Any prejudice claimed by Defendant due to
possible unavailability of witnesses is entirely speculative.
there has been no showing that Defendant cannot get the
information he needs through other means. Some of the
potential witnesses are still incarcerated and can be
contacted to determine what information they can provide. In
addition, all telephone calls from a correctional facility
are recorded and documented. Therefore, the information
Defendant seeks could potentially be obtained through prison
records. Moreover, the telephone calls the government intends
to use in this case were recorded, documented, and provided
to Defendant. Also, the government asserts that it will prove
its theory of the case with evidence known and available to
Defendant. The government contends that its case is going to
be proven through a cooperating witness who communicated with
Defendant during the conspiracy. (TR. 14.) The government
asserts that this witness will identify the recorded
telephone calls of Defendant, identify Defendant's voice,
and give testimony as to what they were discussing in these
telephone calls. (TR. 14-15.) Defendant is aware of the
identity and whereabouts of the cooperating witness. (TR.
16-17.) Prison staff will identify Defendant's use of
other inmates' phone privileges. (Filing No.
short, Defendant has not shown that there has been any
prejudice that has impaired his ability to meaningfully
present a defense. Because Defendant has not established that
there has been actual and substantial prejudice caused by the
alleged delay in ...