United States v. Moreno, 1:11–CR–246–DNH–1.

• Decision Date: 19 February 2014
• Docket Number: No. 1:11–CR–246–DNH–1.,1:11–CR–246–DNH–1.
• Citation: 997 F.Supp.2d 165
• Parties: UNITED STATES of America, v. Frank MORENO, Defendant.
• Court: U.S. District Court — Northern District of New York

997 F.Supp.2d 165

UNITED STATES of America,
v.
Frank MORENO, Defendant.

No. 1:11–CR–246–DNH–1.

United States District Court,
N.D. New York.

Feb. 19, 2014.

[997 F.Supp.2d 168]

Hinckley, Allen Law Firm, of Counsel, Samuel C. Breslin, Esq., Albany, NY, for Defendant.

Richard S. Hartunian, United States Attorney for the Northern District of New York, of Counsel, Robert A. Sharpe, Esq., Ass't United States Attorney, Albany, NY.

MEMORANDUM—DECISION and ORDER
DAVID N. HURD, District Judge.

TABLE OF CONTENTS

I.	INTRODUCTION	169
II.	BACKGROUND	169

1.	Pre–Indictment Investigation	169
2.	Moreno's Whereabouts	170
3.	Initial Arrest Operation	170
4.	Post–Indictment Efforts	171

III. DISCUSSION
171

1.	Sixth Amendment	171
2.	Length of the Delay	172
3.	Reasons for the Delay	174

A.	Operation Block Crusher	175
B.	May 26, 2011, to September 6, 2012	176
C.	September 6, 2012, to September 9, 2013	178

4.	Defendant's Assertion of the Right	179
5.	Prejudice to Defendant	179
6.	Balancing the Factors	181

IV. CONCLUSION and ORDER
181

EXHIBIT A
182

[997 F.Supp.2d 169]

I. INTRODUCTION

On May 26, 2011, the United States of America (the “Government”) unsealed a nine-count indictment charging defendant Frank Moreno (“Moreno”) and fifteen others with various drug and conspiracy offenses. Although federal arrest warrants were issued and all of his co-defendants were quickly rounded up as part of a coordinated law enforcement operation, Moreno remained a free man for 837 days. When he was finally arrested, it was on a completely unrelated charge—driving on a suspended license.

Moreno now moves to dismiss the federal indictment, with prejudice, alleging a violation of his Sixth Amendment right to a speedy trial. The motion has been fully briefed. Oral argument was heard on Friday, February 7, 2014, in Utica, New York. Decision was reserved.

II. BACKGROUND¹

On May 20, 2011, a federal grand jury sitting in the Northern District of New York returned a sealed indictment charging sixteen individuals with conspiracy to possess and distribute cocaine and heroin in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and § 846. Gov. Ex. 1.² Moreno is charged in Count One of this indictment, which alleges that he conspired with others to procure cocaine and heroin in New York City for distribution to co-conspirators in Upstate New York and elsewhere between 2008 and September 2010. Id. A federal arrest warrant was issued for Moreno the same day. Gov. Ex. 3.

On May 26, 2011, the Government unsealed the indictment. A superseding indictment was later filed on October 20, 2011, which added additional counts and forfeiture allegations against Moreno's co-defendants. Gov. Ex. 2. It also extended the ending date of the alleged conspiracy to “May 2011.” Id. Moreno remained charged in Count One. Id.

On September 9, 2013—nearly twenty-eight months after the Government unsealed the indictment against him in the Northern District of New York—Moreno was arrested by officers with the New York Police Department (the “N.Y.P.D.”) for driving on a suspended license. Breslin Aff. ¶ 13. After the outstanding federal warrant was discovered, Moreno was transferred to this federal district and pleaded “not guilty” to Count One of the superseding indictment. Id. ¶ 30. Counsel was appointed and asserted Moreno's Sixth Amendment speedy trial right at a detention hearing on December 13, 2013. Id. ¶ 34. On January 10, 2014, Moreno filed this motion to dismiss.

1. Pre–Indictment Investigation

For weeks prior to the return of the indictment against Moreno, the Federal Bureau of Investigation (“FBI”) had been planning and organizing a large-scale arrest operation (“Operation Block Crusher”) consisting of thirty-nine separate teams of FBI investigators. Gov. Ex. 5. Operation Block Crusher was intended to simultaneously arrest Moreno, his codefendants, and a number of individuals charged

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under similar indictments. Id. Each of these individuals were allegedly involved in a drug-dealing organization known as the Four Block Gang, which originated from the Hamilton Hill neighborhood of Schenectady, New York, and operated throughout eastern Upstate New York and areas of Vermont. Id.

Although nearly all of the FBI's targets were located in the Schenectady area, the FBI believed Moreno and one of his co-defendants, a man named Terrance Neal, were living somewhere in New York City. Id. An eight-person FBI investigative team (“Team 31”) was specifically tasked with locating and arresting Moreno during Operation Block Crusher. Gov. Exs. 5, 15.³ Team 31 prepared for this arrest operation by establishing “leads” on Moreno's likely whereabouts. Id. On May 4, 2011, electronic searches of criminal history databases in New York and New Jersey revealed that Moreno had been arrested a number of times between 1994 and 2006. Gov. Ex. 7. These searches revealed several street addresses associated with these prior arrests. Id.

The most recent entry in these databases was a September 27, 2006, arrest in New Jersey. Id. This entry reported Moreno's address as 40 Morrow Ave in Scarsdale, New York (“40 Morrow Ave.”). Id. The New York criminal history database reported a typographically incorrect version of the same address—“40 Mattow Ave. Apt 2R, Srarsdale, NY”—associated with a term of probation in Westchester County from June 25, 2008, to April 24, 2010. Id. The FBI had also received information from informants that suggested Moreno might be living at two other addresses in Bronx, New York: 716 Beck Street and 2816 Roebling Avenue. Gov. Ex. 15.

2. Moreno's Whereabouts

Moreno has maintained 40 Morrow Ave. as his legal and mailing address for the past eight years. Teresa Moreno Aff. ¶ 3 (“Teresa Aff.”); Breslin Aff. ¶ 19. He shares this residence with his sister, Teresa Moreno. Teresa Aff. ¶ 3. She has claimed Moreno as a dependent on her federally filed tax returns using his own name and social security number for the 2010, 2011, and 2012, tax years. See Teresa Aff., Ex. A.

On August 9, 2011, Moreno obtained a New York State-issued identification card from the Department of Motor Vehicles (“DMV”) using his real name and 40 Morrow Ave. Gov. Mem. 5; Teresa Aff. ¶ 4; Breslin Aff. ¶ 27. On April 28, 2012, Moreno was involved in an automobile accident and filed a personal injury lawsuit in his own name in Bronx Supreme Court. Breslin Aff. ¶ 26. On June 25, 2013, a request for judicial intervention was electronically filed with the New York State Unified Court System in connection with this ongoing lawsuit. ⁴ Breslin Aff., Ex. B. An undated copy of a delinquent juror notice from Westchester County also lists Moreno's address as 40 Morrow Ave. Breslin Aff., Ex. C.

3. Initial Arrest Operation

On May 26, 2011, the Government unsealed the indictments and simultaneously executed Operation Block Crusher.⁵ Gov.

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Ex. 5. Team 31 investigated the two addresses in Bronx, New York, in its attempt to locate Moreno, but it is unclear whether the FBI ever investigated 40 Morrow Ave. ⁶ Although Team 31's operational planning documents indicated that 40 Morrow Ave. was one of the three locations where Moreno might be found, a review of the “site survey” attached to this plan includes only the two Bronx, New York, locations as targeted addresses. See Gov. Ex. 15. Despite Operation Block Crusher's overwhelming success, Team 31's initial efforts to locate and arrest Moreno were met with failure.

4. Post–Indictment Efforts⁷

On July 12, 2011, a routine NCIC database search revealed a potential match for Moreno. Gov. Ex. 10. This information was sent to the FBI field office in Albany, New York, but it is unclear whether the Albany office conducted any follow-up. Id.

On June 14, 2012, the FBI Albany office conducted a proffer session with one of the individuals arrested in connection with the Four Block gang's criminal activities. Gov. Ex. 12. This individual identified a photograph of Moreno, indicated he had dealt with him on prior drug deals, and believed Moreno had been living somewhere in Bronx, New York, as recently as June 2010. Id. The Government contends that the FBI followed up on this information by “check[ing] with Con Edison to attempt to locate utility bills” in Moreno's name, but has not provided any evidentiary support for this contention. Gov. Mem. 7. The next day, the FBI contacted the Airline Reporting Corporation in Arlington, Virginia, to see if Moreno had purchased any tickets using his name or social security number. Gov. Ex. 13.

On September 6, 2012, DEA agents in Norfolk, Virginia, arrested an individual on unrelated charges. Gov. Ex. 14. This individual claimed to have purchased heroin from Moreno in the past, suggested Moreno was living on Randalls Avenue in Bronx, New York, and provided the telephone number of one of Moreno's alleged criminal associates. Id. The DEA agents alerted the FBI field office in Albany, New York, to this information. The Government contends that the FBI subpoenaed cell phone records and obtained a “Trap and Trace Order” on this telephone number, but has not provided any evidentiary support for this contention. Gov. Mem. 7. This is the last effort by the Government to locate and arrest Moreno, over a year before his “accidental” arrest.

III. DISCUSSION1. Sixth Amendment

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial.” U.S. Const. amend. VI. The right created by the Speedy Trial Clause of the Sixth Amendment enjoys recognition as “one of the most basic rights preserved by our Constitution.” Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Yet this right has also been acknowledged as “amorphous, slippery, and necessarily relative.” United States v. Ray, 578 F.3d 184, 191 (2d Cir.2009) (quoting

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Vermont v. Brillon, 556 U.S. 81, 89, 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009)). “It neither prohibits all delays, nor establishes a strict time limit between the announcement of...