U.S. v. Walker, 95-3861

• Decision Date: 13 August 1996
• Docket Number: No. 95-3861,95-3861
• Citation: 92 F.3d 714
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos D. WALKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 714

92 F.3d 714

UNITED STATES of America, Plaintiff-Appellee, v. Carlos D. WALKER, Defendant-Appellant.

No. 95-3861.

United States Court of Appeals Eighth Circuit.

Submitted April 9, 1996.

Decided Aug. 13, 1996.

Deborah D. Cunningham, Omaha, NE, argued, for appellant.

Michael G. Heavican, Omaha, NE, argued (Thomas J. Monaghan, on the brief), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, and WOLLMAN and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Carlos D. Walker appeals from the final judgment of the district court entered after he pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute in excess of 50 grams of cocaine base. Walker's guilty plea specifically preserved his right to appeal the district court's ¹ denial of his motion to dismiss the indictment, in which Walker claimed that the government violated his Sixth Amendment speedy trial rights because of the period of time that elapsed between his indictment and his return to the District of Nebraska to stand trial. After reviewing the record, we affirm.

I.

On September 6, 1988, Carlos Walker was charged in Nebraska state court with possession with intent to deliver cocaine base. For his permanent address, Walker gave law enforcement officers the Los Angeles, California, address of his parents' residence. After being released on bail, Walker fled the jurisdiction and failed to appear in the Douglas County, Nebraska, district court for any subsequent court appearances on the state charges. On August 22, 1991, Walker was indicted by a federal grand jury in the District of Nebraska on one count of conspiracy to distribute cocaine base. A federal arrest warrant was issued and was returned unexecuted, and the United States District Court was informed that Walker was a fugitive from justice.

In 1991, one of Walker's co-conspirators had contact with Walker in a telephone conversation monitored by the FBI. In that conversation, the co-conspirator informed Walker that law enforcement officers had penetrated the conspiracy. Walker's co-conspirators also provided other information leading law enforcement officers to conclude that Walker was in Los Angeles. FBI agents made efforts to locate Walker in Los Angeles but were unsuccessful. They did not, however, seek Walker at his parents' Los Angeles residence.

Special Agent G. William Nellis of the Omaha, Nebraska, office of the FBI testified at the hearing on Walker's motion to dismiss regarding the particular procedures the FBI uses in locating and identifying individuals accused of crimes, procedures that were employed during the time Walker was a fugitive. Agent Nellis testified that when an indictment is returned and an arrest warrant issued, the defendant's name is entered into the National Crime Information Center (NCIC) computer system within 24 hours. Information entered includes the accused's name, date of birth, tattoos, fingerprints, aliases, sex, and race. The NCIC information is available to all federal and state law enforcement agencies nationwide. ² If an individual whose name is entered into the NCIC database is later arrested and provides correct identification, a match or "hit" will occur when the arresting agency enters his name into the system. The match informs the arresting agency that the individual is wanted on charges elsewhere and who wants him. If the arresting agency believes the individual has provided false information concerning his identity, that agency may send the individual's fingerprints to the FBI's headquarters in Washington, D.C. If the fingerprints match any in the FBI's database, that information will be sent to the agency detaining the individual as well as to the agency seeking the individual.

Agent Nellis testified that the FBI's practice is to check the NCIC records every six months to see whether a wanted individual in the system has been arrested. Agent Nellis stated that the six-month checks were performed with respect to Carlos Walker after his indictment but the checks revealed nothing.

Walker was arrested on unrelated charges in Los Angeles on August 17, 1993. At the time of his arrest, Walker was operating under the alias of "Omar Dotson," and had identification as such. The California authorities provided Walker's fingerprints to the FBI's identification division in Washington, D.C. He was positively identified on September 7, 1993, and Agent Nellis received information on that date concerning Walker's whereabouts. Agent Nellis did not contact the Los Angeles FBI so they could contact Walker, but Agent Nellis did inform the U.S. Attorney's office in Omaha, Nebraska, that Walker had been arrested and was being detained in Los Angeles. Agent Nellis notified officials at the Los Angeles County Jail that Walker was wanted by the FBI in Omaha, Nebraska, and should be detained pending his return to Nebraska.

On October 8, 1993, Walker was sentenced in California state court on "felony evading" charges to two years of imprisonment and was received at Soledad prison on January 21, 1994. Walker subsequently completed a petition for speedy trial on his federal charges on May 10, 1994, and mailed the petition to the U.S. Attorney's office in Omaha, where it was received on May 17, 1994. On May 24, 1994, Agent Nellis placed a formal detainer ³ on Walker. The federal district court in Nebraska subsequently issued a writ of habeas corpus ad prosequendum on June 8, 1994, and Walker was transported from California to Nebraska on July 7, 1994. He entered his initial appearance and was arraigned the following day.

Walker then filed a motion to dismiss the indictment with prejudice on the basis that his Sixth Amendment right to a speedy trial was violated because of the 37-month delay between his indictment and arraignment. After holding an evidentiary hearing and applying the principles set forth in Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), the magistrate judge recommended denial of Walker's motion to dismiss. The district court adopted the report and recommendation and denied Walker's motion to dismiss. Walker then entered a conditional plea of guilty under Federal Rule of Criminal Procedure 11(a)(2), preserving his right to challenge the district court's denial of his motion to dismiss.

II.

Walker contends that the Doggett factors, when correctly balanced, require dismissal of the indictment. Specifically, he claims that the 37-month ⁴ delay was presumptively prejudicial, the government failed to exercise due diligence in locating him, he timely asserted his speedy trial rights, and his defense has been prejudiced due to the passage of time.

The magistrate judge correctly observed that the analysis set forth in Doggett governs Walker's Sixth Amendment speedy trial claim. In Doggett, the Supreme Court stated that Doggett's constitutional speedy trial claim turned on the four factors it had set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and went on to expand upon and refine the Barker factors. Those factors are: "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, 505 U.S. at 651, 112 S.Ct. at 2690.

The first factor, whether the delay was uncommonly long, consists of a dual inquiry. Id. "Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay, since, by definition, he cannot complain that the government has denied him a 'speedy' trial if it has, in fact, prosecuted his case with customary promptness." Id. at 651-52, 112 S.Ct. at 2690-91 (quoting Barker, 407 U.S. at 530-31, 92 S.Ct. at 2192) (internal citation omitted). The court acknowledged that lower courts had concluded that, depending on the charges, a delay that approaches one year would be "presumptively prejudicial," triggering the speedy trial inquiry and appeared to accept that conclusion. Id. at 652 n. 1 and 658, 112 S.Ct. at 2691 n. 1 and 2694. The 37-month delay in this case is thus sufficient to trigger the speedy trial analysis.

If the defendant makes a showing sufficient to trigger the speedy trial inquiry, "the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim." Id. at 652, 112 S.Ct. at 2691. In this vein, "the presumption that pretrial delay has prejudiced the accused intensifies over time." Id. Accordingly, the 37-month period of time is a factor which weighs in Walker's favor.

The second factor involves determining who is responsible for the delay, the defendant or the government. Id. at 652, 112 S.Ct. at 2691. The government's intentional delay in locating a defendant will weigh heavily against it. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. Negligence, on the other hand, will be weighted less heavily against the government but is still a considerable factor in the weighing process. Id.; see also Doggett, 505 U.S. at 652-53, 112 S.Ct. at 2690-91.

The magistrate judge noted that Walker makes no claim of intentional governmental delay; rather, Walker contends that the government was negligent in failing to locate him. In deciding Walker's claim, the magistrate judge considered the following facts. After Walker was released on bail for his Nebraska state court charges, he fled the jurisdiction. The Nebraska and California FBI offices made efforts to locate Walker based on information obtained from Walker's co-conspirators but were unable to find him. The FBI also entered Walker's personal information in the NCIC computer and checked on that information every six months to see if Walker had been...