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United States v. Burch

United States District Court, W.D. Missouri, Western Division

August 8, 2017

United States of America, Plaintiff,
v.
Michael Eugene Burch, Defendant.

          REPORT AND RECOMMENDATION

          JOHN T. MAUGHMER, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is the Motion to Dismiss Based on Post-Indictment Delay (Doc. #16) filed on February 21, 2017, by defendant Michael Eugene Burch (“Burch”). On May 24, 2017, the undersigned held an evidentiary hearing on Burch's motion. Burch was present and was represented by his counsel, Assistant Federal Public Defender Anita L. Burns. The government was represented by Assistant United States Attorneys Justin Davids and Jess Michaelsen. At the evidentiary hearing, three witnesses testified: Deputy United States Marshals Richard Haralson, III, and Jason Thomas and Detective Frank Rorabaugh with the Kansas City, Missouri Police Department. Additionally, the following exhibits were offered by the government and were admitted into evidence:

Number

Description

Gov't #1

Federal arrest warrant

Gov't #2

CaseNet

Gov't #3

Judgment

Gov't #4

Docket sheet

Gov't #5

Bail bond

Gov't #6

Case management order

Gov't #7

Delegation

Gov't #8

ECF docket sheet

Gov't #9

Joint stipulation

         Finally, the following exhibits were offered by Burch at the evidentiary hearing and were admitted into evidence:

Number

Description

Def't #11

Mo. DOC records

Def't #12

Docket sheet

Def't #13

Docket sheet

Def't #14

Delegation

Def't #15

KCPD status report

Def't #16

KCPD incident report

Def't #17

Docket sheet

Def't #18

Writ of habeas corpus

Def't #19

Writ of habeas corpus

Def't #20

order for writ of habeas corpus

         On the basis of all the evidence adduced at the evidentiary hearing, the undersigned submits the following:

         PROPOSED FINDINGS OF FACT

         1. On January 28, 2015, a federal grand jury in the Western District of Missouri indicted Burch for being a felon-in-possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Tr. at 17-18, Gov't #9.

         2. That same day, the Court issued an arrest warrant for Burch. Gov't #9.

         3. The arrest warrant for Burch was then provided to the United States Marshal's Service (“USMS”) on January 29, 2015. Gov't #9.

         4. Under the then USMS procedure, the USMS did not enter the arrest warrant into NCIC - instead, at the time, it was the responsibility of the agency that performed the underlying investigation to place the warrant into the system. Tr. at 19, Gov't #9.

         5. In Burch's case, the investigative agency was the Kansas City, Missouri Police Department. Gov't #9.

         6. The case agent assigned to Burch's case by the Kansas City, Missouri Police Department was Detective Frank Rorabaugh and “it was [his] responsibility to enter the warrant.” Tr. at 16-17, 19, Gov't #9.

         7. Det. Rorabaugh did not enter the Burch arrest warrant into NCIC.[1] Tr. at 18, Gov't #9.

         8. According to Det. Rorabaugh, his failure to enter the arrest warrant was “an oversight” stemming from a miscommunication because Det. Rorabaugh “believed a writ was being completed to transfer [Burch] from state custody to federal custody” and the writ would be sought sometime after Burch's state cases were concluded. Tr. at 19, 23, 26.

         9. At the time of the federal indictment, Det. Rorabaugh believed that Burch was in the custody of the Missouri Department of Corrections facing state criminal charges. Tr. at 18, 25.[2]

         10. In fact, at the time Burch was federally indicted, he was also facing state criminal law charges in in the Circuit Court of Camden County, Missouri. Gov't #9.

         11. Det. Rorabaugh reviewed the docket sheet for the Camden County case on Missouri CaseNet[3] and saw that Burch's state court defense attorney had advised the Camden County Circuit Court judge that Burch's case would be proceeding to trial. Tr. at 18, 25-26.

         12. In addition, at the time Burch was federally indicted, he was also facing state criminal law charges in one case pending in the Circuit Court of Jackson County, Missouri. Gov't #9.

         13. On April 27, 2015, Burch pled guilty to possession of methamphetamine, marijuana, and drug paraphernalia in his Camden County case. Gov't #9.

         14. On that same day, a Camden County Circuit Court judge sentenced Burch to five years imprisonment. Gov't #9.

         15. At that time, Det. Rorabaugh was not aware that Burch had been sentenced. Tr. at 29.

         16. On February 22, 2016, Burch was released from the custody of the Missouri Department of Corrections. Gov't #9.

         17. Because of the pending Jackson County charges and Jackson County warrant, officers with Jackson County were notified ...


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