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United States v. Carswell

United States District Court, S.D. Florida

July 3, 2019

United States of America, Plaintiff
v.
Wayne Carswell, Defendant.

          AMENDED ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          Robert N. Scola, Jr. United States District Judge.

         This order amends and supersedes docket entry 36.

         This Cause came before the Court upon Defendant Wayne Carswell's (“Carswell”) Motion to Dismiss Indictment for Violation of Speedy Trial (ECF No. 17). Carswell's motion is based upon violations of the Sixth Amendment of the United States Constitution and Fed. R. Crim. Pro. 48(b). He claims that the lengthy post-indictment delay weigh heavily against the Government, thus giving rise to a presumption of prejudice to his defense of this case. On July 1, 2019, the Court held an evidentiary hearing. Having considered the Motion, all supporting and opposing submissions, the credible evidence and testimony, the parties', the record, and the relevant legal authorities, the Court grants the Motion (ECF No. 17) for the following reasons.

         1. Background

         Carswell, who is also known by the names “Wendell Carswell, ” “Renegade Foxxx” and “Cool Foxxx, ” is a hip-hop artist. The Government claims that Carswell perpetrated a fraudulent scheme to obtain outside funding for the completion, promotion and marketing of a music album, which he represented would yield substantial returns upon release, among other things. After obtaining funds for these purposes, the Government claims that Carswell diverted the investments to himself and spent that money on various personal expenses without disclosure to or approval by the investors. On April 25, 2011, allegedly in furtherance of this scheme, the Government claims that Carswell wire transferred $15, 000 from a Florida bank to a New York bank, (the “Transfer”).

         Almost five years later, on Friday, April 22, 2016, a grand jury returned a sealed indictment against Carswell on one-count of wire fraud under 18 U.S.C. § 1343. (the “Indictment, ” ECF No. 1.) Two years and nine months after that, on January 29, 2019, the Government arrested Carswell in Oklahoma. Carswell made an initial appearance before this Court, on February 13, 2019, and filed the Motion a month later, on March 15, 2019. The Indictment was unsealed on February 13, 2019, the date of Carswell's initial appearance. (ECF No. 7.)

         From the date of the Indictment to the date of the arrest, the Government submits that it took diligent steps to locate Carswell. Specifically, the Government agent assigned to this case registered Carswell's warrant in a national database (“NCIC”) that would be visible to all state, local, and federal law enforcement officers and trigger a notification to the FBI in Miami if Carswell encountered law enforcement of any kind. (ECF No. 23 at p. 4.) That case agent also “conducted periodic reviews of open-source databases, including Lexis-Nexis, for any new addresses associated with” Carswell. (Id.) In early 2019, one of these reviews revealed two addresses associated with Carswell in Oklahoma, leading to his arrest. (Id.)

         Carswell moved from south Florida to Oklahoma in 2017 and lived under his true name throughout that time. (ECF No. 17 at p. 5.) While in Florida, Carswell's Florida driver's license listed his true address of residence. (Id.) Upon moving to Oklahoma in 2017, Carswell both rented an apartment and worked under his own name. (Id.) He submits that he never knew about the Indictment prior to his arrest and never tried to evade law enforcement. (Id.)

         Carswell moves to dismiss the indictment, claiming the Government violated his Sixth Amendment right to a speedy trial. (ECF No. 17.) Specifically, Carswell argues that the Government's now over three-year post-indictment delay in bringing him to trial is presumptively prejudicial and without justification, and that Carswell promptly asserted his right to a speedy trial approximately one month after his arrest. Carswell claims that these facts weigh heavily against the Government such that he need not demonstrate that the delay prejudiced his trial defense to prevail on the Motion.[1]

         In response, the Government concedes that the post-indictment delay is presumptively prejudicial under prevailing Supreme Court and Eleventh Circuit precedent. (ECF No. 23.) The Government also concedes that Carswell asserted his speedy trial right in due course. But the Government submits that it diligently pursued Carswell post-indictment, such that the delay in bringing him to trial was at most negligent and, in no case, done for the purpose of gaining advantage at trial. Because of that, the Government argues that Carswell must demonstrate actual prejudice to prevail on the Motion, which it argues he cannot do.

         In reply, Carswell contests that the Government diligently pursued Carswell. (ECF No. 28 at pp. 4-5 (characterizing the Government's attempts to locate Carswell as “barebones”).) Carswell further submits in reply that his defense has been prejudiced by the post-indictment delay because “records are no longer available and memories have undoubtedly faded in the seven to eight years since the events in question.” (Id. at p. 8.)

         The Court held an evidentiary hearing on the Motion on July 1, 2019. During the hearing, the following witnesses testified:

         A. Brian Oman (“Oman”)

         Oman has been a Special Agent for the FBI since 2008. Oman became involved in the investigation of Carswell in 2013 and worked with Neptime Dieujuste from the Florida Office of Financial Regulation (“OFR”). The investigation started with OFR when several alleged victims complained about monies they had invested with the Defendant to further his music career.

         An Indictment was returned on April 22, 2016. Prior to the return of the Indictment, Oman attempted to locate Carswell. He reviewed his DAVID (Florida Driver's License) information which listed his address as of April 4, 2014, at 3031 W. Commercial Blvd in Lauderdale Lakes. Oman went to the address a few weeks prior to the Indictment. They spoke to the manager but not to any other residents. They did not conduct surveillance and only went there one time. According to the building manager, Carswell had lived there in the past but had not been there in several months. Oman did not ask if Carswell had left a forwarding address for his mail. The manager also indicated that Carswell worked at a limousine company. Dieujuste contacted several limo companies to attempt to locate Carswell. Oman and Dieujuste also spoke to several alleged victims but they had not had contact with him since mid-2015. Oman wanted to speak to Carswell before the Indictment to obtain whatever information Carswell had about the case.

         After the return of the indictment, Oman also registered the warrant in NCIC so any law enforcement officer in the United States would immediately see that there was an active warrant.

         Oman did not ask the United States Postal Service to use a mail cover to notify the FBI of any mail being sent to Carswell.

         No other physical locations were searched by Oman and Oman did not speak with any neighbors of any addresses associated with Carswell. Oman did not speak to anyone at any recording studios Carswell frequented to see if anyone had been in contact with Carswell or knew where he was.

         Diana Ratevosian told Oman she had spoken to Carswell in January 2015 and she gave Oman two different active phone numbers of Carswell. Oman did not make any efforts to obtain records or cell ...


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