United States v. Walker

1

UNITED STATES OF AMERICA, v. JAMES WALKER a/k/a “Tommy,” Defendant.

No. 1:23-CR-00077 JLS (MJR)

United States District Court, W.D. New York

March 5, 2024

REPORT, RECOMMENDATION AND ORDER

MICHAEL J. ROEMER, United States Magistrate Judge

This case has been referred to the undersigned by the Hon. John L Sinatra, Jr. pursuant to 28 U.S.C. § 636(b)(1) for all pre-trial matters and to hear and report upon dispositive motions. (Dkt. No. 3)

BACKGROUND

Defendant James Walker (“defendant” or “Walker”) is charged with: (1) conspiracy to possess with intent to distribute, and to distribute, 5 kilograms or more of cocaine, from February 2018 through July 25, 2018, in violation of Section 846 of Title 21 of the United States Code; (2) possession of 5 kilograms or more of cocaine with intent to distribute, on July 25, 2018, in violation of Sections 841(a)(1) and 841(b)(1)(A) of Title 21 of the United States Code and Section 2 of Title 18 of the United States Code; and (3) money laundering conspiracy, from February 2018 through January 25, 2018, in violation of Section 1956(h) of Title 18 of the United States Code (the “Indictment”). (Dkt. No. 1) The Indictment was filed on July 18, 2023. (Id.)

On November 28, 2023, defendant filed various omnibus discovery demands as well as a motion to dismiss the Indictment and motions to suppress evidence.

(Dkt. No. 15) The Government filed responses to defendant's motions and omnibus demands on December 11 2023. (Dkt. No. 12) The Court held oral argument on January 9, 2024, at the conclusion of which the Court set a deadline of January 26, 2024 for defendant to submit supplemental briefing and/or an affidavit in support of his motion to suppress statements. (Dkt. No. 18) The Government was to submit a response by February 9, 2024, upon which date the Court considered the matter submitted. (Id.)

DISCUSSION

The Court will first address defendant's motion to dismiss the Indictment and motions to suppress evidence before turning to his non-dispositive omnibus discovery demands and the Government's request for reciprocal discovery.

Motion to Dismiss the Indictment

Defendant moves to dismiss the Indictment on the basis of excessive pre-indictment delay, in violation of his due process rights under the Fifth Amendment.^[1] (Dkt. No. 15, pgs. 3-6) For the following reasons, the Court recommends that defendant's motion to dismiss the Indictment be denied.

An indictment brought within the statute of limitations "has a strong presumption of validity." United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999). Thus, a defendant faces a “heavy burden” in seeking dismissal based on pre-indictment delay. United States v. Scarpa, 913 F.2d 993, 1014 (2d Cir. 1990). The Second Circuit has held that, in order to meet this burden, a defendant must show that the delay "cause[d] 'substantial prejudice' to the defendant's ability to present his defense and [that] 'the delay was an intentional device to gain [a] tactical advantage over the accused.1" Cornielle, 171 F.3d at 752 (quoting United States v. Marion, 404 U.S. 307, 324 (1971)) (emphasis added). A defendant must make a specific and particularized showing of actual prejudice to overcome a timely indictment's presumption of validity. See Cornielle, 171 F.3d at 752. The possibility of faded memories, unavailable witnesses, and loss of evidence, by itself, is insufficient. See Marion, 404 U.S. at 325-26.

Here defendant has not made a specific, particularized showing of substantial prejudice as a result of the Government's delay in filing the Indictment. Defendant generally contends that the almost five-year gap between the conduct charged and the filing of the Indictment has caused his own memory of relevant events to have faded, and has made it more difficult for witnesses to recall important facts of the case. He claims that important witnesses are likely no longer available. However, defendant fails to identify any specific witnesses who possess exculpatory or even relevant information about the charges; what the anticipated testimony of these witnesses would show; or why these individuals are now unavailable. See United States v. Scala, 388 F.Supp.2d 396, 399400 (S.D.N.Y. 2005) (due process claim denied where defendant could not demonstrate actual prejudice from pre-indictment delay resulting in the unavailability of two witnesses because he failed to show, beyond mere speculation, what the witnesses' testimony would have been and how he was specifically or actually prejudiced without it).

Defendant also claims that, absent the delay, he would have been able to produce phone communications and business records showing innocent or legitimate explanations for his statements and behavior. However, defendant's failure to offer any specific details as to the content of these purported records or communications, or a specific explanation as to how they would tend to prove his innocence, is fatal to his claim of prejudice. See United States v. Jordan, 629 F.Supp.3d 49, 54 (E.D.N.Y. 2022) (denying motion to dismiss indictment on basis of delay despite defendant's claims that a “lost cell phone, telephone, and beeper records” would “support his alibi”, since “conspicuously absent from [defendant's] argument is any factual support for his claim.”); United States v. Valentin, 14-CR-55, 2016 U.S. Dist. LEXIS 42630 (D. Conn. Mar 30, 2016) (rejecting defendant's claim that pre-indictment delay caused him actual prejudice due to loss of phone records that supported his defense, because “[i]n absence of any factual support, the Court has no idea what [defendant] believes the phone records contain, how they could conceivably contradict [the Government's evidence], and how those contradictions could conceivably demonstrate that [defendant] did not commit the crime[] charged."); United States v. Birney, 686 F.2d 102, 105-06 (2d Cir. 1982) (“The burden of demonstrating actual prejudice is on defendant, and the proof of prejudice must be definite and not speculative.”).^[2] Indeed, defendant's failure to show actual prejudice as a result of the pre-indictment delay is alone sufficient for the Court to deny his motion to dismiss.

Furthermore, even if defendant had shown actual prejudice as a result of the delay, which he has not, defendant has not demonstrated that the delay was either intentionally pursued by the Government for an improper purpose or was utilized by the Government to gain a tactical advantage over him in the prosecution. See Cornielle, 171 F.3d at 752; Marion, 404 U.S. at 324.

The Government has proffered that Walker owned a trucking company in Alabama and hired an acquaintance to drive his tractor trailer in 2017. (Dkt. No. 16, pg. 7) The Government alleges that the driver later learned that he would be delivering legitimate goods as well as occasionally picking up and delivering narcotics as well as cash from the sale of narcotics. (Id.) The Government proffers that, on July 25, 2018, as part of a law enforcement operation, agents observed the driver distribute 17 kilograms of cocaine from Walker's truck and receive over $500,000 in exchange for the drugs. (Id.) In addition, Walker's truck was found to contain a secret compartment concealing $145,000 in drug proceeds. (Id.) At that time, the driver was arrested and Walker's truck was seized. (Id.)

The driver was later charged with drug conspiracy and other related crimes, in a separate case, along with a number of other individuals, not including Walker. See United States v. Valdez, et al., 18-CR-138. A trial in United States v. Valdez was held in the fall of 2021, resulting in the conviction of several defendants. (Id.) The driver entered into a plea agreement with the Government on October 14, 2021, shortly before the start of the trial. See 18-CR-138, Dkt. Nos. 431, 432. According to the Government, around this same time, the driver provided the Government with access to his previously locked and encrypted cell phone. (Dkt. No. 16, pgs. 7-8) The Government was then able to recover, from the driver's phone, numerous deleted messages between Walker and the driver. (Id.) The Government submits that these messages constituted essential corroborating evidence, against Walker, as to the instant drug conspiracy and related charges, that was not previously available. (Id.) The Government indicates that the driver testified before the grand jury on April 25, 2023 and the instant Indictment was returned three months later. (Id.)

Courts in this Circuit have held that, in order to satisfy their burden in demonstrating a due process violation, a defendant must show that the government acted intentionally or recklessly with regard to the delay. United States v. Santiago, 987 F.Supp.2d 465, 485-86 (S.D.N.Y. 2013). Where a defendant can demonstrate that the government made a "series of deliberate (not inadvertent) decisions," recklessness can be found. Id. However, an "[investigative delay," namely the delay caused by a prosecutor waiting until he "is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt," will not suffice. Lovasco, 431 U.S. at 795.

Based on the record here, including the information proffered by the Government, it appears that much of the pre-indictment delay in this case was investigatory in nature. Specifically it seems that the Government did not uncover some of its most significant evidence against defendant until the fall of 2021, at the earliest. Defendant has offered no evidence to contradict the Government's explanation for the delay. Moreover, defendant has failed to offer any evidence suggesting that the delay was the result of intentional or reckless Government conduct, designed to provide the...