United States v. Moreno

Citation789 F.3d 72
Decision Date05 June 2015
Docket NumberDocket No. 14–1820–cr.
PartiesUNITED STATES of America, Appellant, v. Frank MORENO, a/k/a “Mo,” Defendant–Appellee, Henry Keene, Terrance Neal, Maikel Mangra, Rodney Randall, Shirockie Kirk, Vittorio George, Steven Hartridge, Gregory Wilson, El–Hajj Moses, a/k/a “Little Elie,” Dushan Wilson, a/k/a “Lil Du,” Omar Lewis, a/k/a “Tree,” Jubbar Singleton, a/k/a “Ja,” Asar Brandow, a/k/a “Jamel,” Marquas Buchanan, a/k/a “Un,” Sakena Kocer, a/k/a “Kills,” Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Paul D. Silver (Robert A. Sharpe, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Albany, New York, for Appellant.

Samuel C. Breslin, Albany, New York, for DefendantAppellee.

Before: JACOBS and LOHIER, Circuit Judges, and GERACI, District Judge.*


DENNIS JACOBS, Circuit Judge:

After the unsealing of an indictment charging Frank Moreno and others with narcotics conspiracy, every defendant except Moreno was promptly arrested. Notwithstanding their efforts, federal agents were unable to find Moreno until his arrest by state police officers during a Bronx traffic stop, 27 months later.

Moreno moved to dismiss the indictment with prejudice because the pre-arrest delay violated his Sixth Amendment right to a speedy trial. He asserted (through counsel) that prior to his arrest he was unaware of the federal indictment, and was living openly at his sister's apartment at 40 Morrow Avenue in Scarsdale, New York (“40 Morrow Avenue”), which federal agents never searched. The motion was granted by the United States District Court for the Northern District of New York (Hurd, J.), which held that the pre-arrest delay was entirely attributable to government negligence and that Moreno suffered prejudice. The government's motion for reconsideration was denied.

We conclude that: (I) the entire pre-arrest delay cannot be attributed to the government's negligence, and (II) Moreno did not adequately show prejudice.


A sealed indictment, filed May 20, 2011, charged Moreno and fifteen others with conspiracy to distribute cocaine and heroin. In anticipation of a takedown operation to arrest the defendants, agents of the Federal Bureau of Investigation (“FBI”) interviewed informants and ran database searches. As to Moreno, informants told the agents that he could potentially be found at one of two locations in the Bronx: 716 Beck Street and 2816 Roebling Avenue. A New Jersey database listed “40 Morrow Avenue, Scarsdale, NY” as Moreno's address at the time of a 2006 arrest, while a New York database listed 40 Mattow Ave. Apt. 2R Srarsdale, N.Y. [sic] as the address associated with Moreno's prior term of probation, which ended in 2010. Ultimately, only the two Bronx addresses were included in the ‘Site Survey’ section of the final operation plan for the takedown.

On May 26, 2011, the indictment was unsealed and FBI agents executed simultaneous arrests of individuals charged in several related indictments (“Operation Block Crusher”). All other defendants targeted by Operation Block Crusher were successfully found and arrested during or in the days immediately following the takedown.

A team of eight agents in the FBI's New York City office were assigned to find and arrest Moreno. Pursuant to the operation plan they searched at the two Bronx addresses, unsuccessfully. Individuals interviewed at one of the Bronx addresses told agents that they had seen Moreno there “within days.” Later that day, agents entered Moreno's information into the National Crime Information Center (“NCIC”), an FBI database shared with other federal and state law enforcement agencies. On July 12, 2011, NCIC returned a potential lead on Moreno, which was forwarded to the FBI's Albany office. The record does not show whether the FBI followed up.

On June 14, 2012, a cooperating witness told FBI agents that Moreno had been dealing kilogram quantities of cocaine from his Bronx apartment as recently as 2010. In response, FBI agents ran a search with Con Edison to locate Moreno's utility bills, and submitted a request to the Airline Reporting Corporation to search its databases for Moreno's name, date of birth, and social security number.1 Neither effort proved fruitful.

On September 6, 2012, an informant arrested in Virginia told agents of the Drug Enforcement Administration (“DEA”) that Moreno was his heroin supplier. According to this informant, Moreno was dealing drugs out of a residence in the “middle projects” at Randall Avenue in the Bronx. The informant provided agents with the cell phone number of one “Fluffy,” who dealt heroin with Moreno. DEA agents relayed this information to the FBI. In November 2012, FBI agents sought and obtained account information and historical cell site data for Fluffy's cell number, but were unable to discern a discrete location where Fluffy (or Moreno) could be found. Federal law enforcement took no further steps to locate Moreno after November 2012.

Ten months after the federal investigation became inactive, Moreno was arrested in the Bronx on September 9, 2013. The arresting officers discovered the outstanding federal warrant and transferred Moreno to federal custody for prosecution in the Northern District of New York.

Moreno moved to dismiss the indictment with prejudice on the ground that the 27–month delay violated his Sixth Amendment right to a speedy trial. His counsel averred that, during that time, Moreno had been living openly at his sister's apartment at 40 Morrow Avenue, and submitted in support an affidavit from the sister, Teresa Moreno, along with her tax returns and other documents.2

The district court granted the motion, finding that each of the factors under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), militated in favor of dismissal. United States v. Moreno, 997 F.Supp.2d 165 (N.D.N.Y.2014) (“Moreno I ”). The court's analysis focused chiefly on the reason for the delay—the second Barker factor—and concluded that the entire pre-arrest delay stemmed from the government's “anemic” investigation and “fail[ure] to exercise reasonable diligence in its efforts to locate [Moreno].” Id. at 177, 181. The court credited Moreno's assertion that he “maintained 40 Morrow Ave. as his legal and mailing address for the past eight years” and faulted the government for not investigating that address. Id. at 170, 175–76.

The government's motion for reconsideration was denied. United States v. Moreno, 12 F.Supp.3d 313 (N.D.N.Y.2014) (“Moreno II ”). The motion adduced evidence that Moreno did not live at 40 Morrow Avenue, including an affidavit from an FBI agent stating that he interviewed two long-time employees of 40 Morrow Avenue neither of whom recalled seeing Moreno there in the preceding four years. In view of that newly submitted evidence, the court clarified that Moreno I 's “finding of negligence was not based on an ‘unfavorable’ resolution of” the issues of ‘whether and when’ Moreno lived at 40 Morrow Ave.,” but on “the Government's failure to proffer any evidence of due diligence in the one-year period prior to defendant's arrest by the N.Y.P.D.” Id. at 316.

The government appeals Moreno I and Moreno II . We reverse and remand for reinstatement of the indictment.


The Sixth Amendment provides that [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. That right protects both the accused's interest in “decent and fair procedures” and the public's interest in a speedy adjudicative system. Barker, 407 U.S. at 519, 92 S.Ct. 2182. It is “triggered by arrest, indictment, or other official accusation,” Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), or (in cases such as this) by the unsealing of a sealed indictment, United States v. Watson, 599 F.2d 1149, 1156 (2d Cir.1979). Dismissal of the indictment with prejudice is “the only possible remedy.” Barker, 407 U.S. at 522, 92 S.Ct. 2182.

[T]he right to speedy trial is a more vague concept than other procedural rights.” Barker, 407 U.S. at 521, 92 S.Ct. 2182. The Supreme Court has identified four factors that must be balanced when considering whether the right has been violated: [l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.” Id. at 530, 92 S.Ct. 2182. The first factor, the length of delay, also operates as a threshold inquiry: a Barker analysis is triggered only if a delay is so long as to be “presumptively prejudicial.”3 Doggett, 505 U.S. at 652, 112 S.Ct. 2686 (internal quotation marks omitted). Once an analysis is triggered, no one factor is “a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial,” and all “must be considered together with such other circumstances as may be relevant.” Barker, 407 U.S. at 533, 92 S.Ct. 2182.

Dismissal of an indictment for a constitutional speedy trial violation is reviewed for “abuse of discretion.”4 United States v. Ghailani, 733 F.3d 29, 43–44 (2d Cir.2013). We must defer to the district court's findings of fact, which may be reversed only if clearly erroneous. Id.; Doggett, 505 U.S. at 652–53, 112 S.Ct. 2686. Given a particular set of factual findings, however, the district court's legal conclusion as to whether the Sixth Amendment was violated commands little deference: “a determination whether someone's constitutional rights have been violated is rarely viewed as a matter truly left to district court ‘discretion.’ Ghailani, 733 F.3d at 44. On a given factual record, “a district court is in no better position than a reviewing court to undertake the required balancing”; “it is improbable that we would approve opposite decisions as to two identically-placed defendants on the basis that each decision was within the trial judge's discretion.” Id. So if we conclude that the district court...

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