UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA v. Criminal Action No. 18-009 (CKK) RONALD HINKLE, Defendant

MEMORANDUM OPINION (February 2, 2023) In this criminal action, Defendant Ronald Hinkle is charged with two counts of unlawful

distribution of cocaine, in violation of

(a)(1) and (b)(1)(C) (Counts One and

Two); one count of unlawful possession with intent to distribute five kilograms or more of

cocaine, in violation of

(a)(1) and (b)(1)(A)(ii) (Count Three); one count of

unlawful possession with intent to distribute 28 grams or more of cocaine base, in violation of

(a)(1) and (b)(1)(B)(iii) (Count Four); one count of unlawful possession with intent

to distribute heroin, in violation of

(a)(1) and (b)(1)(C) (Count Five); and one

count of using, carrying, and possessing a firearm during a drug trafficking offense, in violation

of

(c)(1) (Count Six). See Superseding Indictment, ECF No. 7. Defendant

filed the pending [49] Motion to Dismiss Counts One and Two of the Superseding Indictment

due to pre-arrest and pre-indictment delay. Def.’s Mot. at 1. More specifically, Defendant

argues that these counts should be dismissed “because the government violated his right to a

speedy trial by failing to diligently pursue his arrest or an indictment for nearly 30 months

following the events that are the bases for those two charges.”

Upon consideration of the

1 pleadings,1 the relevant legal authorities, and the record as a whole, the Court will DENY

Defendant’s [49] Motion to Dismiss Counts One and Two of the Superseding Indictment.

I. BACKGROUND

On or about July 30, 2015 and August 19, 2015, Defendant Ronald Hinkle allegedly

distributed a detectable amount of cocaine to a confidential government source in controlled

buys. Def.’s Mot. at 1. The Government filed an Indictment against Defendant on January 16,

2018 charging him with Counts One and Two, see Indictment, ECF No. 1, and Defendant was

arrested on February 22, 2018, see ECF No. 2. The Government later filed a Superseding

Indictment on March 1, 2018 adding additional charges. See Superseding Indictment, ECF No.

7. Defendant Hinkle first appeared before Judge Emmet G. Sullivan on March 6, 2018. See

Minute Entry, March 6, 2018.

Over the next few years, Defendant appeared before Judge Sullivan for numerous

hearings. At various times, the parties were prepared to proceed to trial, and at other times the

parties were prepared to proceed with a plea offer; both fell through. In April and May 2021,

Defendant filed several motions, including the present [49] Motion to Dismiss. Throughout the

following months, Judge Sullivan held motions hearings that bore on some of Defendant’s

pretrial motions.

1 The Court’s consideration has focused on the following documents: • Def.’s Mot. to Dismiss Counts One & Two of Indictment Due to Pre-Arrest and Pre- Indictment Delay (“Def’s Mot.”), ECF No. 49; • Gov.’s Omnibus Opposition to Defendant’s Multiple Motions (“Gov.’s Opp’n”), ECF No. 60; and • Def.’s Reply to Gov.’s Omnibus Opposition (“Def.’s Reply”), ECF No. 62. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f). 2 This case was transferred to Judge Colleen Kollar-Kotelly on October 18, 2022, and the

parties appeared before this Court on January 26, 2023 to discuss the status of the case and the

pending motions. With the [49] Motion fully briefed, the Court now turns to its resolution.

II. LEGAL STANDARD

A. Speedy Trial Clause of the Sixth Amendment

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. To determine whether a

defendant’s Sixth Amendment right to a speedy trial has been violated, the Court considers four

factors: the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and

prejudice to the defendant.” Barker v. Wingo,

(1972).

B. Due Process Clause of the Fifth Amendment

The Fifth Amendment provides that “no person shall be… deprived of life, liberty, or

property, without due process of law.” U.S. Const. amend. V. “Essential fairness is a

fundamental due process requirement in criminal prosecutions, and untoward delay in notifying

the accused of the charges to be pressed breeds unfairness by adversely affecting the preparation

and presentation of his defense.” United States v. Parish,

(D.C. Cir. 1972).

III. DISCUSSION

Defendant argues in his Motion to Dismiss that the Government “violated his right to a

speedy trial” due to pre-arrest and pre-indictment delay. Def.’s Mot. at 1. Defendant allegedly

distributed a detectable amount of cocaine to a confidential government source in two controlled

buys––the first on or about July 30, 2015, and the second on or about August 19, 2015.

Defendant was not charged by Indictment until January 16, 2018, see Indictment, ECF No. 1,

3 which is a lapse of approximately thirty months since the July 2015 buy and twenty-nine months

since the August 2015 buy. An arrest warrant issued that same day and Defendant was arrested

on February 22, 2018. See ECF No. 2.

Defendant’s Motion states that this lapse violated “his right to a speedy trial,” Def.’s Mot.

at 1, which is a right under the Sixth Amendment. However, the Motion recites and applies the

standard under the Due Process Clause of the Fifth Amendment. See, e.g.,

at 2–6. The

Court will address arguments under both the Sixth and Fifth Amendment below.

A. Speedy Trial Clause of the Sixth Amendment

Defendant’s Motion to Dismiss begins by stating that “the government violated his right

to a speedy trial.” Def.’s Mot. at 1. Defendant cites some case law that hinges on this Sixth

Amendment right, see

at 7–8, and concludes with a proposed Order that included the phrase

“because of a speedy trial violation,” id. at 10. In his reply brief, Defendant again doubles down

about “defendant’s speedy trial rights.” Def.’s Reply at 12. Other than these references, the

rest of Defendant’s briefing applies a different legal standard.

The Sixth Amendment right to a speedy trial is not applicable because Defendant Hinkle

challenges a pre-indictment, pre-arrest delay. “[T]he Sixth Amendment speedy trial provision

has no application until the putative defendant in some way becomes an ‘accused,’” which

occurs through “either a formal indictment or information or else the actual restraints imposed by

arrest and holding to answer a criminal charge.” United States v. Marion,

(1971). Defendant himself seems to explicitly recognize this, writing in his briefing that

“the Sixth Amendment right to a speedy trial does not come into play until after the individual

has been placed under arrest.” Def.’s Mot. at 3.

4 Accordingly, to the extent that Defendant intended to raise the Sixth Amendment speedy

trial right as a ground for dismissing Counts One and Two of the Superseding Indictment, the

Court denies Defendant’s Motion.

B. Due Process Clause of the Fifth Amendment

As noted above, Defendant’s argument primarily relies on a due process rationale.

Generally, the applicable “statute of limitations is the primary measuring stick to gauge whether

a criminal charge is unduly stale.” United States v. Bridgeman,

(D.C. Cir.

1975). However, the Supreme Court has recognized that in certain circumstances, oppressive

pre-indictment delay can violate a defendant’s rights under the Due Process Clause of the Fifth

Amendment. Marion,

; United States v. Lovasco,

(1977).

To establish a due process violation for pre-indictment delay, a defendant must show both that

(1) the delay caused the defendant actual and substantial prejudice, and (2) the government

intentionally delayed bringing to gain a tactical advantage. Marion,

. The

defendant bears the burden of establishing both elements. United States v. Kilroy,

(D.D.C. 1991) (Jackson, J.), aff’d on other grounds,

(D.C. Cir. 1994). The

Court addresses these elements in turn.

1. Actual and Substantial Prejudice

A defendant must advance a credible argument that the delay actually prejudiced them

rather than rest on mere speculation. See United States v. Burnett,

(D.C.

Cir. 2016). The prejudice must be actual and substantial. Marion,

. Here,

Defendant makes three arguments regarding prejudice, none of which rise to the requisite level

of actual and substantial prejudice.

5 First, Defendant argues that the delay “makes it much more difficult for Mr. Hinkle to

recall what he was doing and where he was on the pertinent dates and times of the controlled

buys.” Def.’s Mot. at 6. He does not explain specifically what he fails to remember nor how

that would be relevant to his case. Both the Supreme Court and the United States Court of

Appeals for the District of Columbia Circuit has made clear that because “[m]emories inevitably

dim with the passage of time,” Bridgeman,

, “bare allegations that delay has

dimmed the memories of… [a] defendant[] does not constitute actual prejudice,” United States v.

Brodie,

(D.D.C. 2004) (ESH); see also Marion, 404 U.S. at 325–26.

Furthermore, where a defendant alleges that it is merely difficult to recall events and not that

their memory has in fact failed, that weakens a defendant’s attempt to demonstrate prejudice.

See United States v. Mahoney,

(D.D.C. 1988) (Gasch, J.). That is exactly

what Defendant Hinkle alleges here––that the delay “makes it much more difficult” for him to

recall past actions and events. Def.’s Mot. at 6. The Court finds that Defendant’s assertions

regarding his memory fail to establish actual and substantial prejudice.

Next, Defendant states that the delay “makes it far more difficult to locate witnesses

pertaining to the relevant events and time [] period.”

He does not identify particular

witnesses he would have liked to locate nor contend that such witnesses could have offered

exculpatory evidence. Case law is again clear: “[P]rejudice is not satisfied… by the slender

hope that a witness, now unavailable, might have been able to come forth with testimony

favorable to the defense.” United States v. Jones,

(D.C. Cir. 1975) (citation

and internal quotation omitted); see also Brodie,

; United States v. Reed,

Crim. No. 15-188 (APM),

, at *3 (D.D.C. July 27, 2017). A defendant must

6 show that his defense has been disadvantaged by the inability to locate or call such witnesses so

as to rise above speculative and into the realm of actual and substantial prejudice. See Kilroy,

; see also United States v. Crouch,

(5th Cir. 1996) (internal

citation omitted) (collecting cases) (“A mere loss of potential witnesses is insufficient absent a

showing that their testimony would have actually aided the defense.”). Here, Defendant fails to

meet that standard. In addition, the Government points out that their evidence “consists of a

single cooperating witness” who participated in the controlled purchases and “will testify that the

person who sold [] the drugs was none other than the defendant” as well as “the recordings of

those controlled purchases.” Gov.’s Opp’n at 22. The Government’s brief impliedly questions

what the purportedly-unavailable defense witnesses would change about the case, see

and

Defendant fails to respond to this challenge, see generally Def.’s Reply at 12–13. The Court

finds that Defendant’s assertions regarding potential difficulty locating witnesses fails to

establish actual and substantial prejudice.

Finally, Defendant states that “[m]ost significantly, [the delay] interferes with the

defendant’s ability to obtain call detail records, geo-location data, cell tower data, and other

records from the telephone company, as those records are not usually maintained for 30 months

unless the telephone company is served with a preservation letter.” Def.’s Mot. at 6. But

permanent loss of evidence does not necessarily create actual and substantial prejudice. See

Marion, 404 U.S. at 25–26 (the possibility that “evidence [will] be lost” is not in itself “enough

to demonstrate that [defendant] cannot receive a fair trial” in violation of the Due Process

Clause). This is true in the context of electronic information. See United States v. McCormick,

Crim. No. 18-0359 (JDB),

, at *3–4 (D.D.C. Nov. 25, 2019) (finding that

7 where defendant argues only that “he was not able to ‘secure and preserve’ certain chat logs from

the [] forum that may have been exculpatory,” defendant did not show the required prejudice).

Here, Defendant does not aver that he attempted and was unable to obtain such data nor that such

data would have been exculpatory. As the Government points out, “unless the phone was being

utilized during the controlled purchase itself, it is difficult to see how this evidence would assist

in his defense.” Gov.’s Opp’n at 22. Defendant does not respond to this argument. See

generally Def.’s Reply at 12–13. Additionally, the Government indicates that they “will

coordinate with law enforcement to determine if such records exist and are in the government’s

possession,” which, if such records materialize, would further undercut Defendant’s attempt to

show the delay caused prejudice. Gov.’s Opp’n at 22 n.6. The Court therefore finds that the

Defendant has failed to demonstrate actual and substantial prejudice here, too.

In sum, Defendant has not carried his burden of showing that the Government’s pre-

arrest, pre-indictment delay caused him actual and substantial prejudice. Because a defendant

must establish both elements of the standard, see Lovasco,

, the Court could stop

its analysis here and deny Defendant’s Motion to Dismiss. However, the Court will continue to

the second element.

2. Tactical Advantage

A defendant also bears a “substantial burden” in showing that the government

intentionally delayed in order to gain a tactical advantage. United States v. Pollack,

(D.C. Cir. 1976); Marion,

. This bar is rather high. The government

is not required to seek an indictment as soon as the government suspects a defendant or even as

soon as they have probable cause. See Mahoney,

(citing Lovasco,

8 at 790–91). The government can justify delay for various reasons, including where the complex

nature of a case necessitates time-consuming investigation, Pollack,

, where there

is a large volume of evidence, United States v. Koumbairia,

(D.D.C. 2014)

(JDB), due to the magnitude of the crime, Bridgeman,

, because they were

prosecuting other related cases, Kilroy,

, or, at least in part, where the

prosecutor handling the case changed, United States v. Whitehorn,

(D.D.C. 1989) (HHG), rev’d on other grounds sub nom. U.S. v. Rosenberg,

(D.C.

Cir. 1989). As the Supreme Court noted, “the Due Process Clause does not permit courts to

abort criminal prosecutions simply because they disagree with a prosecutor’s judgment as to

when to seek an indictment.” Lovasco,

. For this reason, courts “should not

second guess the prosecutor’s discretion.” Mahoney,

.

Here, Defendant has presented no evidence that the Government’s delay was the result of

a deliberate and unreasonable tactic. Defendant only states that “there is no justification for the

30 month delay, other than to try to gain a tactical advantage” and that “the delay was the

product of conscious action on the part of the government in a manner serving its tactical

interests.” Def.’s Mot. at 6. These “tactical interests” Defendant refers to are ostensibly that

the delay made it more difficult to recall events, made it more difficult to locate witnesses, and

interfered with his ability to obtain data. See

As the Court found above, these allegations to

not rise to the level of demonstrated prejudice against Defendant. Defendant offers no

additional information or evidence, but only a generalized, hollow claim as to the Government’s

impropriety.

Defendant also mentions that “the government made almost no effort to locate and charge

9 Mr. Hinkle with the alleged offenses over the 30 month period.” Def.’s Mot. at 6. Defendant

continues that “he did not change his telephone number or address for the entire time period,”

seemingly implying that had the Government been more diligent, they would have arrested and

indicted him much earlier. However, Defendant does not offer any evidence that this delay was

the product of any deliberate effort by the Government to gain an advantage––only stating that

there was a delay. Cf. Parish,

.

Importantly, the Government offers legitimate reasons for this delay, specifically, that it

was for investigatory reasons. They state that because “the defendant was believed… to be

involved in a larger-scale trafficking operation[,]… law enforcement’s goal was not just to do

multiple controlled purchases on the defendant with the intent to indict him on single sales, but

to obtain additional information as to the operation.” Gov.’s Opp’n at 20. This included

“attempts to conduct controlled purchases with associates of the defendant and other

investigative activity” to see if “it was possible to adduce additional evidence against the

defendant, or identify other criminal activity conducted by his cohorts, before an indictment.”

Id. at 17. These “effort[s]… did not pan out,” id. at 20, allegedly in part because “the defendant

became wary of the cooperating witness, and declined to transact with the witness any further”

and because “the opportunity [to engage with defendant’s associates] never materialized,” id. at

17. The Government admits that “the case against the defendant did not materially change

between 2016 and 2018,” but during that time period they were pursuing various investigatory

paths. Id. The Supreme Court has made clear that “investigative delay is fundamentally unlike

delay undertaken by the Government solely ‘to gain tactical advantage over the accused.’”

Lovasco,

(quoting Marion,

). Additionally, the Government

10 states that during the period between 2016 and 2018, the case was assigned to multiple

Government counsel, Gov.’s Opp’n at 17, which has been held as a factor in justifying delay,

Whitehorn,

.

Defendant Hinkle fails to offer any evidence casting the Government’s investigatory

justification in doubt. The Court therefore finds that Defendant has failed to carry his burden of

showing that the Government intentionally delayed in bringing an indictment as well as arresting

him for the purpose of gaining a tactical advantage.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that Defendant Hinkle failed to

demonstrate a Sixth Amendment speedy trial claim and also failed to satisfy either element of the

required standard under the Fifth Amendment Due Process Clause. Accordingly, the Court will

DENY Defendant’s Motion to Dismiss Counts One and Two of the Superseding Indictment. An

appropriate Order accompanies this Memorandum Opinion.

/s COLLEEN KOLLAR-KOTELLY United States District Judge

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