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United States v. Drake

United States District Court, M.D. North Carolina

April 10, 2018

UNITED STATES OF AMERICA
v.
SHANNON MICHELLE DRAKE RONALD KEITH EARNEST ROBERT THOMAS TAYLOR

          MEMORANDUM OPINION AND ORDER

          OSTEEN, JR., District Judge.

         Presently before this court is the Sealed Motion to Dismiss the Third Superseding Indictment Based on Pre-Indictment Delay filed by Defendant Robert Taylor (“Taylor”).[1] (Doc. 157.) Taylor has filed a brief in support of this motion, (Doc. 158), to which the Government has responded, (Doc. 174). On March 8, 2018, this court held a motion hearing and heard arguments on this motion.[2] (Minute Entry 03/08/2018.) At the conclusion of the motion hearing, this court took the motion under advisement. (Id.) For the reasons stated herein, this court will deny Defendant Taylor's motion without prejudice.

         I. Facts and Procedural History

         On August 29, 2017, charges were brought against Taylor in the Middle District of North Carolina. (See generally Superseding Indictment (Doc. 85).) As reflected in the Superseding Indictment, Taylor is charged with two counts of conspiracy under 18 U.S.C. § 371; thirteen counts of bank fraud under 18 U.S.C. § 1344; and thirteen counts of theft, embezzlement, or misapplication by bank officer or employee under 18 U.S.C. § 656. (See generally id.) The factual allegations within the indictment date back as far as 2003 and the conspiracies in question are alleged to have continued from in or around July 2008 until in or around August 2013 and from on or about January 4, 2008, until on or about August 27, 2013. (Id. at 11, 16, 34.)

         Taylor alleges the following time line with respect to the Government's investigation that led to his eventual indictment. The investigation began as early as 2009, when subpoenas were issued to Grand South Bank (“the Bank”) in relation to a related case. United States v. Harrison, No. 1:10CR411-1 (M.D. N.C. ). By June 2012, Taylor's co-defendant in the instant case, Douglas Corriher, had received a target letter. It wasn't until June 2016 that Corriher, along with another co-defendant, Shannon Drake, were indicted. In October 2016, Taylor received a target letter. The next month, November 2016, Taylor's co-defendant Ronald Earnest was indicted. Finally, in August 2017, Taylor was indicted. Taylor contends that this delay violates the due process clause of the Fifth Amendment and warrants the dismissal of the Superseding Indictment. (See Def. Taylor's Br. in Supp. of Mot. to Dismiss the Third Superseding Indictment Based on Pre-Indictment Delay (“Def.'s Br.”) (Doc. 158) at 1.)

         II. Legal Standards

         The Supreme Court, in United States v. Marion, 404 U.S. 307 (1971), stated that the Fifth Amendment “would require dismissal of the indictment if it were shown at trial that the pre-indictment delay . . . caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” Id. at 324; accord United States v. Lovasco, 431 U.S. 783 (1977). The Fourth Circuit conducts a two-part inquiry in evaluating a defendant's claim that pre-indictment delay violates due process. United States v. Uribe-Rios, 558 F.3d 347, 358 (4th Cir. 2009); United States v. Automated Med. Labs., Inc., 770 F.2d 399, 403-04 (4th Cir. 1985).

First, we ask whether the defendant has satisfied his burden of proving “actual prejudice.” Second, if that threshold requirement is met, we consider the government's reasons for the delay, “balancing the prejudice to the defendant with the Government's justification for delay.” The “basic inquiry then becomes whether the Government's action in prosecuting after substantial delay violates ‘fundamental conceptions of justice' or ‘the community's sense of fair play and decency.'” If delay results from a protracted investigation that was nevertheless conducted in good faith, the Supreme Court has held that “to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.”

Uribe-Rios, 558 F.3d at 358 (citations omitted).

         III. Analysis

         This court proceeds to consider Defendant Taylor's motion to dismiss in accordance with the Fourth Circuit's two-step inquiry, first determining whether Taylor has met his burden of proving actual prejudice, and second, balancing said prejudice against the Government's justification for delay.

         A. Defendant's Burden of Proving Actual Prejudice

          In support of his position, Taylor points to four things as prejudicial in light of this delay: (1) David Burgess, Mr. Taylor's supervisor at the bank, is unavailable for trial due to health conditions that have rendered him incompetent to testify; (2) Jim Medford, the bank's attorney who led its response to the Government's investigation, is likewise unavailable for trial; (3) critical documents have been lost or deleted; and (4) the passage of time has led to memory loss. (Def.'s Br. (Doc. 158) at 9-19.)

         The Government responds, contending that Taylor has not established prejudice sufficient to meet the first prong of the test. (Government's Resp. to Def.'s Mot. to Dismiss Indictment Based on Pre-Indictment Delay (“Government's Br.”) (Doc. 174) at 3.) The Government cites to Jones v. Angelone, where the Fourth Circuit expanded upon what is required for a defendant to meet his burden of proving ...


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