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United States v. Weaver

United States District Court, District Circuit

June 7, 2013

UNITED STATES OF AMERICA,
v.
MICHAEL WEAVER, Defendant.

MEMORANDUM OPINION & ORDER

ELLEN SEGAL HUVELLE, District Judge.

Michael Anthony Weaver has moved to dismiss the fifty-two counts in the indictment that predate his arrest on November 19, 2012, alleging that the government has violated his right to a speedy trial by failing to make diligent efforts to arrest him after his indictment, which in turn resulted in a more than two and a half year delay between indictment and arrest.[1]

FACTS

1. October 2009 Search through Indictment

The Bureau of Alcohol, Tobacco, Firearms & Explosives ("ATF") began to investigate Weaver in July 2008, when he was identified through phone records obtained during an investigation of another suspected drug dealer in the District of Columbia. ( See Transcript of Motions Hearing ("Tr.") at 13, May 29, 2013.) After a year-long investigation, law enforcement obtained and executed a search warrant for Mr. Weaver's residence at 603 L Street, NE on October 21, 2009. ( See Government's Omnibus Response to Defendant's Legal Motions ("Gov't Opp.") at 3 [ECF No. 26].) Weaver was not present during the search but law enforcement left a search warrant return in the apartment indicating the items that had been seized, which included marijuana, drug packaging materials, U.S. currency, and documents. ( See id. at 6; Tr. at 22.)

The next day, Weaver emptied his three bank accounts at Wachovia Bank, withdrawing approximately $20, 000 and closing all accounts. ( See Tr. at 24.) On October 23, 2009, attorney Harry Tun contacted both ATF Special Agent Green and Assistant U.S. Attorney Courtney Spivey Urschel, claiming that the defendant had retained Tun to represent him. ( See id. at 29; Government Hearing Exhibit ("Gov't Hearing Ex.") 9B at 4.) On the same date, Weaver sold a car to CarMax for $8, 000 in cash. ( See Tr. at 26.) On October 30, 2009, Agent Green was contacted by another attorney, Ross Hecht, who also claimed that he represented Weaver. ( See Tr. at 30; Gov't Hearing Ex. 9B at 5.)

While it cannot be determined exactly when Weaver left the L Street apartment, it is undisputed that he was no longer living there in early 2010 (if not before), and that he moved to 203 R Street, N.W. in early 2010 and continued to reside at that address until the summer of 2012, when a flood destroyed his basement apartment.[2] ( See Defendant's Hearing Exhibits ("Def. Hearing Exs.") 4, 5; Tr. at 115-18.) Nonetheless, Weaver filed reports dated February 5 and April 2, 2010, with his probation officer indicating that he still lived at 603 L Street, NE. ( See Gov't Hearing Ex. 4.)[3] The reports he filed with probation on February 5 and April 2, 2010 also indicated that he still had an open bank account at Wachovia, although he had previously closed that account. ( See Gov't Hearing Exs. 4, 5.) Weaver stopped reporting by phone and in person to his probation officer in mid-March ( see Probation Chronological Record Report, Def. Hearing Ex. 3), and on March 22, 2010, the probation officer tried but was unable to reach Weaver by phone. ( See id. )

On April 13, 2010, a magistrate judge of this Court issued an arrest warrant, and on April 15, 2010, Weaver was indicted. ( See Gov't Opp. at 9.) Also, on April 15, 2010, an arrest warrant was issued based on Weaver's violation of the terms of his supervised release in the Eastern District of Virginia. ( See id. at 10.)

2. The Government's Efforts to Arrest Weaver

Immediately following Weaver's indictment and the issuance of the two arrest warrants, ATF agents made efforts to arrest him. On April 20, 2010, they went to 603 L Street, NE, the address that he had continued to use in probation reports as late as April 2, 2010. ( See Tr. at 33.) The agents learned from the couple who lived at that address that Weaver was no longer residing there. ( See id. ) Agents went by six or seven other addresses associated with Weaver, including the addresses of his children or the mother of his children. ( See id. ) The visits were made both during the day and at night. ( See id. ) Agent Green recalls speaking with someone at one of the addresses, but not at any of the other addresses, where they simply looked for Weaver or any family members, any activity, or one of the vehicles believed to be Weaver's. ( See id. at 34.) The arrest warrant was also put into NCIC, the national crime database maintained by the FBI, on the day it was issued, as well as the Treasury Enforcement Communication System ("TECS"). ( See id. ) Agent Green notified Weaver's probation officer about the arrest warrant and asked that Weaver be called in. ( See id. at 43; Gov't Hearing Ex. 9B at 8.) There is no evidence in the record as to whether Weaver's probation officer tried to reach him after the indictment.

On April 22, 2010, agents contacted the MPD and requested assistance in locating Weaver using the MPD tag reader system, which could establish where in the District Weaver's cars were traveling, possibly suggesting a pattern that might indicate where he was staying. ( See Tr. at 53-54; Gov't Hearing Ex. 9B at 9.) Agent Green recalls that both license plates that authorities knew about were entered into the system, although the contemporaneous records only refer to a single tag being entered. ( See Tr. at 55; Gov't Hearing Ex. 9B at 9.) While the system returned a number of hits, including for the Third Street tunnel, none led agents to a specific residence. ( See Tr. at 55.) On April 28, 2010, MPD reported that no tag readers in the District had read Weaver's tag since April 20, 2010, leading agents to believe that he may have left the jurisdiction. ( See Gov't Hearing Ex. 9B at 9.) Accordingly, on April 29, 2010, agents used the Accurint database system to determine that Weaver had a relative living in Mt. Pleasant, North Carolina. ( See id. ) They contacted the Cabarrus County sheriff's office and requested that officers drive by the address to check for any D.C.-registered cars. ( See id.; Tr. at 52-53.) None were observed. ( See Gov't Hearing Ex. 9B at 9.) In June 2010, an ATF agent went to North Carolina but did not observe any D.C.-registered cars or any other signs that Weaver was present at the address. ( See Tr. at 52; Gov't Hearing Ex. 9B at 9.) At the end of June 2010, Agent Green was transferred to the New Jersey office, at which time the case was reassigned twice to other agents, and then ultimately to Agent Jeffrey Meixner in the summer of 2012. ( See Tr. at 31-32, 59-60; Gov't Hearing Ex. 9B at 9-10.)

After this spurt of activity in April after the warrant was issued, not much else of any significance occurred for over two years. Between June 16, 2010 and July 7, 2011, the only recorded efforts to locate Weaver consisted of database searches to determine if there were any new reported addresses or information about Weaver, and a visit to this courthouse to ensure that the warrant remained active. ( See Gov't Hearing Ex. 9B at 9-10.) On July 7, 2011, an agent went to a D.C. address on Fairmont Street, NW, where a maintenance worker informed him that Weaver "frequents [the] building." ( See id. at 10.) Despite a notation that the agent would "make furt[]her intel checks and spot checks of apt. building, " there is no evidence that such efforts were made. ( See id. ) On July 8, 2011, the same agent went by the L Street address, despite prior confirmation that Weaver no longer resided there. ( See id. ) Thereafter, the only recorded efforts made between July 8, 2011 and August 9, 2012, were checks of various databases to confirm that Weaver remained a fugitive. ( See id. )

In the summer of 2012, Agent Meixner took over the case and restarted the investigation. ( See Gov't Hearing Ex. 9B at 10.) On August 9, 2012, he determined that a 2003 Nissan Maxima owned by Weaver had been sold in November 2010 by an individual determined to be an associate of Weaver's. ( See Tr. at 86; Gov't Hearing Ex. 9B at 10.) ATF obtained that person's phone records by subpoena and an intelligence analyst attempted to determine a phone number for Weaver based on the call detail records. ( See Gov't Hearing Ex. 9B at 10.) On October 3, 2012, Agent Meixner received a list of Weaver's family and associates from his prior federal probation case, and ATF subpoenaed additional phone records relating to his family and associates. ( See id. ) ATF ascertained a phone number that they believed was being used by Weaver, although the subscriber was listed as Michael Brown with an Irvine, California billing address. ( See Tr. at 89-90.) Suspecting a ...


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