NCIC Database Check Not Enough to Protect Speedy-Trial Rights

, The Legal Intelligencer

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The Drug Enforcement Administration's running of a defendant's name through the National Crime Information Center database a few times over five years without making other efforts to arrest him was a violation of his Sixth Amendment right to a speedy trial, the Third Circuit has ruled in a split decision.

The U.S. Court of Appeals for the Third Circuit's decision in United States v. Velazquez overturned a district court ruling denying Sergio Velazquez's motion to dismiss the charges against him for speedy trial violations. The Third Circuit said the length of time between the charges and arrest "crossed the threshold of prejudicial," the government's claims of preserving resources as a cause for not doing more to find the defendant failed and the defendant's receipt of mail at a P.O. box wasn't enough to show he was being evasive.

"We recognize the significance of our decision," said Senior Judge Kermit V. Lipez of the First Circuit, who was sitting by designation. "A defendant who pleaded guilty to serious drug charges will no longer have to answer those charges. But we accept such rare outcomes as the necessary cost for the protection of the speedy trial right set forth in the Constitution."

In Velazquez, the DEA began investigating defendant Velazquez in June 2005 after receiving a tip that he was interested in selling cocaine to a confidential informant, according to Lipez's majority opinion.

Velazquez and a co-defendant traveled from California to Philadelphia to meet with the informant, who wore a wire to the meeting. The recorded discussions outlined a plan to sell between 5 and 10 kilograms of cocaine, according to the opinion.

The DEA had Philadelphia police stop Velazquez and his co-defendant after the meeting to identify the men. The police got Velazquez's name, California license information and his P.O. box address. The men were not arrested, Lipez said.

The informant's calls with Velazquez were monitored and in July 2005, the DEA tracked the co-defendant to a truck stop where another man gave him a sack of cocaine. The police arrested both men, Lipez said.

The two men were indicted in August 2005 and a complaint and arrest warrant were issued for Velazquez a day later. DEA agents traveled to California to visit an address associated with Velazquez, but he was not there, Lipez said. Velazquez was declared a fugitive and the U.S. Marshals Service was charged with apprehending him. The warrant for Velazquez's arrest was then put into the NCIC database, described as an "'electronic clearinghouse of crime data that can be tapped into by virtually every criminal justice agency nationwide, 24 hours a day, 365 days a year,'" Lipez said.

In November 2005, an assistant U.S. attorney from the Eastern District of Pennsylvania sent a copy of the complaint to Velazquez's attorney in California, Jerome Kaplan. Kaplan had testified before the Third Circuit that he was retained to contact the U.S. Attorney's Office about a potential surrender. Three weeks later, a superseding indictment was filed, charging Velazquez with three counts related to the distribution of cocaine. The indictment was not sent to Kaplan. Neither Kaplan nor Velazquez appeared at the December 2005 arraignment.

Over the next five years, the U.S. Marshals Service checked the NCIC regarding Velazquez four times and the DEA checked it four times. At one point during that time, a DEA agent noticed the warrant was removed from the NCIC and ensured it was put back in the database. No one attempted to visit the California address again, check other commercial databases, contact Kaplan or contact the agent who initially visited the California address, Lipez said.

In November 2010, a new deputy marshal began working on the case and looked at a LexisNexis database of public records that showed Velazquez tried to renew his driver's license in California with an address that was a garage that possibly employed Velazquez, Lipez said. Surveillance by marshals in California over the next year proved unsuccessful.

Lipez said Velazquez was ultimately apprehended in December 2011 after Glendale, Calif., police arrested him on an unrelated narcotics charge. He was extradited to the Eastern District of Pennsylvania to face the 2005 charges.

The district court denied Velazquez's motion to dismiss the indictment on the basis of a speedy trial violation. He pleaded guilty in June 2012 while reserving his right to appeal the speedy trial issue.

The Third Circuit examined Velazquez's claims under the four-factor test outlined in the U.S. Supreme Court's 1972 decision in Barker v. Wingo to determine whether the right to a speedy trial was violated.

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