2nd Cir. Holds Delay in Arrest Doesn’t Doom Case

(CN) - The government did not violate a Bronx, N.Y., man's right to a speedy trial by taking more than two years from the time he was indicted to arrest him on drug charges.

The June 5 ruling reversed a ruling by U.S. District Judge David Hurd, who had found that the 27-month prearrest delay was entirely attributable to government negligence, and that the arrestee in the case, Frank Moreno aka "Mo," suffered prejudice as a result.

A sealed indictment filed on May 20, 2011, charged Moreno and 15 others with conspiracy to distribute cocaine and heroin. Days later, FBI agents arrested every defendant but Moreno in an action the government called "Operation Block Crusher."

According to court documents, a team of eight agents with the FBI's New York office searched for Moreno at two Bronx addresses provided by informants, but to no avail.

Over a year later, an informant told FBI agent, that Moreno had been dealing kilos of cocaine from his Bronx apartment as recently as 2010.

But an FBI search of billing records held by the utility Con Edison of New York, and a subsequent search of records held by the Airline Reporting Corp., which handles ticketing transactions for over 200 airlines and railroads, turned up no leads.

On Sept. 6, 2012, an informant arrested in Virginia told Drug Enforcement Administration agents that Moreno was dealing heroin out of an apartment in a Bronx housing project, and even provided investigators with the cell phone number of his alleged dealing partner, an individual identified as "Fluffy."

Despite obtaining Fluffy's cell phone records, the FBI was never able to conclusively determine his location, and it took no further steps to locate Moreno.

Ten months later, however, Moreno was arrested during a Bronx traffic stop after officers found his outstanding federal warrant and transferred him to federal custody for prosecution in the Northern District of New York.

Moreno moved to dismiss the indictment on the ground that the 27-month delay violated his Sixth Amendment right to a speedy trial.

It was later revealed that Moreno had been living openly at his sister's apartment in Scarsdale, N.Y. for at least eight years before his arrest, and that her address was available to the FBI through a New York State criminal justice database at the time of the active investigation.

In dismissing the case against Moreno, Judge Hurd said the pre-arrest delay stemmed from the "anemic" nature of the government's investigation and agents' failure to pursue the Scarsdale address.

The government moved for reconsideration, submitting evidence that Moreno did not actually live at his sister's home -- the testimony of two long-time employee's of the apartment complex, who said they didn't recall seeing Moreno there during the preceding four years.

But Hurd denied the motion, holding that the government's negligence lay in its "failure to proffer any evidence of due diligence" in the one-year period prior to Moreno's arrest.

The government appealed, and the Second Circuit reversed the lower court's ruling Friday, rejecting the claim that evidence shows Moreno stayed with his sister for the past eight years.

"Moreno II expressly disclaimed reliance on a finding that Moreno ever lived there or that investigation of that address would have improved the government's chances of finding him," U.S. Circuit Judge Dennis Jacobs wrote for the three-judge panel.

The investigators' negligence is not to blame for the entire pre-arrest delay, the ruling states.

"The government could have taken additional steps that would have improved its chances of finding Moreno, but the salient consideration is that the efforts it did take were diligent and reasonably calculated to lead to capture," Jacobs wrote. "Those efforts spanned the period from May 2011 to November 2012, well over half of the pre-arrest period."

The judge later added that "the government can be faulted only for the ten-month period

(November 2012 to September 2013) during which it ceased to exercise reasonable diligence."

Attorney Samuel Breslin, who represents Moreno, said he and his client are disappointed by the Second Circuit's ruling.

"Over the next [several] days we will be reviewing and weighing all available options," Breslin said.

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