United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
matter is before the Court on DEFENDANT'S MOTION TO
DISMISS the Indictment (ECF No. 15) (the "MOTION").
For the following reasons, the MOTION was denied by an ORDER
entered on March 20, 2019 (ECF No. 24).
Walter Graves ("Graves") is charged in a one-count
indictment with a bank robbery that occurred on May 13, 2015
in Petersburg, Virginia. ECF No. 3. Because the factual
background of the case is important to the disposition of the
MOTION, the Court will lay it out in detail.
bank robbery at issue occurred in Petersburg on May 13, 2015
("the bank robbery"). On May 15, 2015, Graves was
arrested on two sets of state charges. He was charged by the
City of Petersburg ("the Petersburg charges") with
state offenses stemming from the bank robbery: felony charges
of robbery, grand larceny of more than $200 not from the
person, possessing a firearm after a prior felony conviction,
and use of a firearm during the commission of a felony; and
misdemeanor charges of possessing a concealed weapon and
brandishing a firearm. See ECF No. 15 at 1. He was
also charged for entirely unrelated conduct in Sussex County
("the Sussex charges"): breaking and entering with
intent; destruction of property; trespassing after being
forbidden; and two counts of violating a protective order.
Graves was held in Sussex County on all these charges.
remained in custody in Sussex County. At some point on or
before August 31, 2015, he was brought to Petersburg for
resolution of the Petersburg charges. On August 31, 2015,
Graves was acquitted of the misdemeanor Petersburg charges
and the felony Petersburg charges were
dismissed. That same day, Graves returned to custody
in Sussex County pending resolution of the Sussex charges.
United States (hereinafter "the Government"), with
the understanding that all of the Petersburg charges had been
dismissed, then filed a criminal complaint in this Court
("the federal complaint") on September 10, 2015,
charging Graves with the May 13, 2015 Petersburg bank
robbery. See ECF Dkt. 3:15-mj- 227. An arrest
warrant was issued, but the Government did not take further
action on the federal complaint because it was awaiting a
resolution of the Sussex charges. Graves remained in custody
March 9, 2016, Graves was tried on the Sussex charges and
found guilty on all of them. On June 8, 2016, Graves was
sentenced on the Sussex charges, receiving six years in the
state penitentiary and 18 months in jail (it is not clear
whether the sentences run consecutively). Graves is still
serving the sentence on the Sussex charges and has a
projected release date of September 13, 2021 on those
Government did not immediately learn that the Sussex charges
had been resolved. Once it did, however, Graves was brought
into federal custody on September 21, 2016 on the bank
robbery charge in the federal complaint. The initial
appearance on that charge was held on September 22, 2016, and
Graves was ordered detained pending trial. At some point
thereafter, the Government learned that Graves had been
acquitted on some of the Petersburg charges related to the
bank robbery (rather than having them all dismissed as it
believed to have been the case).
circumstance triggered the internal so-called "Petite
Policy" of the Department of Justice. The Petite Policy
"prohibits a federal prosecution based on the same acts
or transactions involved in a prior state prosecution,"
unless the Attorney General of the United States approves.
ECF No. 19 at 4-5. As a result of the Petite Policy, the
Government "had no choice but to dismiss its felony
robbery charge," ECF No. 19 at 2, and the Court granted
the Government's MOTION TO DISMISS the federal complaint
on October 4, 2016. Thus, at this point, there were no
pending federal charges. Graves, of course, remained
incarcerated by Virginia on the Sussex charges.
October 4, 2016, the Government sought and obtained from the
Attorney General a waiver of the Petite Policy. That process
began around January 2017, at which time the Government
decided to pursue a waiver of the Petite Policy. Around April
of 2018, the Assistant United States Attorney assigned to the
case circulated a draft waiver proposal internally to his
office; a final draft of the waiver proposal was approved by
that office and sent to the Department of Justice for final
approval in August 2018. The waiver was granted by the
Department of Justice on September 14, 2018.
on December 18, 2018, Graves was indicted for the bank
robbery. On January 29, 2019, Graves was arrested from state
custody and had his initial appearance on that indictment.
Graves was arraigned on February 1, 2019.
now moves to dismiss the indictment. ECF No. 15. The parties
have briefed the MOTION,  and the Court heard oral argument on
March 19, 2019.
raises two arguments in support of the MOTION. First, he
argues that the Double Jeopardy Clause of the United States
Constitution bars this federal prosecution. Second, he argues
that the lengthy delay in prosecuting this case warrants
dismissal under Fed. R. Crim. P. 48(b). The Government
opposes the MOTION on both grounds. For the reasons set forth
below, the Court rejects both of Graves' arguments and
denies the MOTION.