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United States v. Graves

United States District Court, E.D. Virginia, Richmond Division

March 26, 2019



          Robert E. Payne Senior United States District Judge.

         This 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).


         Defendant 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.[1]

         The 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.

         Graves 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.[2] That same day, Graves returned to custody in Sussex County pending resolution of the Sussex charges.

         The 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 in Sussex.

         On 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 charges.

         The 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).

         That 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.

         After 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.

         Thereafter, 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.[3]

         Graves now moves to dismiss the indictment. ECF No. 15. The parties have briefed the MOTION, [4] and the Court heard oral argument on March 19, 2019.


         Graves 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.

         A. ...

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