UNITED STATES v. DURHAM III (2025)

ORDER

This is a felon-in-possession prosecution. Before the Court is Defendant William Earl Durham, III's (“Durham”) Motion to Dismiss for Violation of the Speedy Trial Clause of the Sixth Amendment. (DE 89). The United States of America (“the Government”) has responded in opposition (DE 92), and Durham has filed a Reply (DE 95). For the reasons below, Durham's Motion to Dismiss is granted.

I. BACKGROUND

A. Factual Background

On February 5, 2019, officers with the Myrtle Beach Police Department (“MBPD”) arrested Durham for unlawfully running in the roadway in Myrtle Beach, South Carolina. A firearm was found on his person, and he was a convicted felon.

The case was taken up by the U.S. Bureau of Alcohol, Tobacco, and Firearms (“ATF”). The lead investigator was Task Force Officer (“TFO”) Kahzim Yazici (“Yazici”), an MBPD officer assigned to the ATF. At TFO Yazici's recommendation, the U.S. Attorney's Office indicted Durham on November 26, 2019, for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). (DE 4.) The same day, the Government moved to seal the case, and the Magistrate Judge granted the motion. (DE 1; DE 2.)

Although TFO Yazici believed Durham lived with his mother at her home in Murrells Inlet, South Carolina (“the Murrells Inlet Address”), he did not apprehend Durham for over three years. TFO Yazici testified that Durham was considered a flight risk, but admitted that he lacked evidence that Durham was evading arrest. After approximately forty months,¹ TFO Yazici deemed the investigation futile and referred the case to the U.S. Marshals Service (“the Marshals Service” or “the Marshals”).

On June 7, 2023, the Marshals Service prepared to arrest Durham at the Murrells Inlet Address. (DE 10; DE 27.) At this time, a task force officer informed the Marshals of a new database that could be used to locate Durham. Using that database, the Marshals located a new address, where (as it turned out) Durham had moved in 2022 with his children. The Marshals re-grouped at the new address and arrested Durham without incident.

B. Procedural Background

On June 8, 2023, Durham was arraigned before a Magistrate Judge, and the Government moved to unseal the case. (DE 14.) A detention hearing followed, after which Durham was released on an unsecured bond pending trial. (DE 32.) Following several continuances, Durham asserted his Sixth Amendment right to a speedy trial on May 23, 2025. (DE 89.)

II. STANDARD

Rule 12(b)(3) of the Federal Rules of Criminal Procedure requires certain “defenses, objections, and requests” to “be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits[.]” This includes “a violation of the constitutional right to a speedy trial[ ] ․” Id. 12(b)(3)(A)(iii).

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, ․” U.S. Const. amend. VI. This is “one of the most basic rights preserved by our Constitution.” Klopfer v. North Carolina, 386 U.S. 213, 226 (1967). A violation of this right warrants dismissal of the indictment. Barker v. Wingo, 407 U.S. 514, 522 (1972).

A purported violation of this right is determined by a four-part examination in which the Court must consider the “[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.” Barker, 407 U.S. at 530. While “these factors have no talismanic qualities[,]” the Court's examination “must be carried out with full recognition” that a fundamental right is at stake. Id. at 533.

III. DISCUSSION

A. The Length of the Delay

To trigger a Barker analysis, the delay between accusation and trial must be “presumptively prejudicial.” Doggett v. United States, 505 U.S. 647, 651–52, (1992) (quoting another source). The Sixth Amendment right to a speedy trial attaches upon the initiation of formal charges. See United States v. MacDonald, 456 U.S. 1, 6 (1982) (“A literal reading of the [Sixth] Amendment suggests that this right attaches only when a formal criminal charge is instituted and a criminal prosecution begins.”)

Durham explains that he was indicted in November 2019 but was not arrested until June 2023—an interval of about forty-three months. He contends, rightly, that such a delay is “presumptively prejudicial.” (DE 89 at 5.) The Government agrees that the delay warrants further analysis under Barker, though it characterizes the delay as unexceptional. (DE 92 at 5.) That characterization is difficult to reconcile with precedent. In cases involving limited factual or legal complexity, courts have found delays of as little as eight months sufficient to trigger a full Barker inquiry.² See United States v. Woolfolk, 399 F.3d 590, 598 (4th Cir. 2005).

The period of delay that Durham complains about is five times that long. Courts have described significantly shorter delays as “uncommonly long.” See, e.g., United States v. Grimmond, 137 F.3d at 828 (noting “a 35–month delay is uncommonly long”); United States v. Lloyd, 645 F. App'x 273, 277 (4th Cir. 2016) (per curiam) (noting a “15–month gap between indictment and arrest ․ is long enough to merit inquiry into the remaining factors, but [is] not an ‘extraordinary’ delay”). While this case does not approach the eight-and-a-half-year delay found “extraordinary” in Doggett, the forty-three-month interval remains firmly in the “uncommon” category, especially given the straightforward nature of the underlying charge.

As in Doggett, the implications of this uncommon delay will be more fully explored in the analysis of the remaining factors. Doggett, 505 U.S. at 652. For now, however, the length of the delay crosses the threshold required to trigger the Barker inquiry and supports a finding that Durham's speedy-trial right was violated.

B. The Reason for the Delay

The second Barker factor requires the Court to assess the reasons for the delay and to classify them as either “valid, improper, or neutral.’ ” United States v. Robinson, 55 F.4th 390, 400 (4th Cir. 2022) (alteration adopted) (quoting another source). While valid reasons favor the Government, both improper and neutral reasons for delay are attributed to the Government for Sixth Amendment analysis. Grimmond, 137 F.3dat 828 (noting that “although labeled neutral, ‘the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.’ ” (quoting Barker, 407 U.S. at 531)).

The Government offers two reasons for the pre-arrest delay: first, ATF's unsuccessful efforts to locate Durham, and second, the disruptions caused by the COVID-19 pandemic. (DE 92 at 6.) Even if the Court were to consider post-arrest delay as part of this factor, as the Government urges (id. at 7), the outcome remains unchanged. The predominant responsibility for the delay lies with the Government.

1. Law Enforcement Efforts to Locate Durham

At the evidentiary hearing, the Government described the investigatory steps taken by TFO Yazici to locate Durham. Yazici explained that despite the presence of two other ATF agents and one other TFO in his office, he was solely responsible for investigating this case. His investigative process included database and internet searches to identify possible addresses, periodic surveillance of those locations, and an assessment using a threat matrix to guide arrest efforts. Notably, Yazici explained that once an investigation is deemed futile, it is referred to the Marshals Service.

Here, as TFO Yazici explained, from the beginning of his investigation, Durham's state arrest warrant contained the Murrells Inlet Address. Though before June 2020 and January 2021, Yazici obtained other addresses from a database search, he did not locate Durham. And no one disputes that the Murrells Inlet Address was where Durham resided from his indictment until 2022.

Despite this knowledge, Yazici's surveillance efforts followed a sporadic pattern—around once every six months—without any indication of nighttime surveillance or meaningful attempts to adapt investigative methods. (See, e.g., DE 92 at 2–3.) Yazici did not explain the duration or adequacy of each surveillance attempt, nor did he clarify why he ultimately deemed the investigation futile in March 2023. Notably, Yazici admitted that Durham was on bond and that he had no reason to believe Durham was attempting to evade apprehension.

The Court is mindful that Barker requires an inquiry not only into the duration of delay, but also into its cause and intent. See United States v. Hall, 551 F.3d 257, 272 (4th Cir. 2009). While the record reflects no evidence of “bad faith or dilatory purpose[,]” the investigative actions taken—standing alone—were minimal and routine. United States v. Loud Hawk, 474 U.S. 302, 316 (1986). As the U.S. Supreme Court made clear in Doggett, repeated negligent failures to act are not excused simply because they lack malice. 505 U.S. at 657. Accordingly, although Yazici's investigative efforts were facially valid, the prolonged and unjustified gaps between them—without meaningful follow-up—render much of the delay unreasonable. The Court credits only one month of valid investigative effort to TFO Yazici.³

In contrast, there is no suggestion that the Marshals Service was anything but diligent. Once the case was assigned to them, the Marshals located and apprehended Durham within four months. Thus, this period is considered valid and weighs in favor of the Government.

Thus, using conservative estimates, the Court attributes five months of pre-arrest delay—one month to TFO Yazici's investigation and four months to the Marshals’ efforts—as valid and not weighing against the Government.

2. The Effect of the COVID-19 Pandemic on Law Enforcement

At the hearing, the Government fleshed out the impact of COVID-19 on the efforts taken by TFO Yazici in attempting to locate Durham. TFO Yazici testified that he continued working during the pandemic while managing a caseload of around ninety matters, several of which were more complex than Durham's. He also contracted COVID-19 in February and April 2020, and again in July 2021. In 2022, pandemic-related family obligations also impeded his efforts.

While United States v. Pair, 84 F.4th 577 (4th Cir. 2023), recognizes that institutional delays arising from COVID-19 may be valid, its application here is limited, as Durham notes. (See DE 93 at 2 n.1.) Nonetheless, there is some testimony that institutional staffing shortages and pandemic-related challenges contributed to the delay.⁴ The Court credits, conservatively, a period of seven months as attributable to COVID-related disruption, which weighs in the Government's favor.

3. Durham's Continuances

The Government contends that Durham's post-arrest requests for continuances should be considered under this factor and weigh against him. (DE 92 at 3.) Durham disagrees, and with good reason. In cases involving pre-arrest delays, courts within the Fourth Circuit rarely consider post-arrest conduct under this factor. See e.g., United States v. Lozano, 962 F.3d 773 (4th Cir. 2020) (addressing post-arrest conduct under factor three, not two); Lloyd, 645 F. App'x at 277–78 (same).

Even if the Court were to consider the twenty-three-month post-arrest period in its analysis here, most of the delay—more than thirty-one months—preceded Durham's arrest and resulted from inaction by law enforcement. That period is not mitigated by subsequent defense continuances. As the Eastern District of North Carolina aptly stated: “Three years is too long.” United States v. Rowan, No. 7:13-CR-101-BO-1, 2019 WL 8060042, at *2 (E.D.N.C. Oct. 24, 2019). To summarize: testimony suggests that

• five months of delay are attributed to valid law-enforcement activity and weigh in the Government's favor (one month to ATF; four months to the Marshals);

• seven months of delay are attributed to COVID-19 and arguably are valid and weigh in the Government's favor; and

• thirty-one months of delay are attributed to unjustified law-enforcement inaction and weigh against the Government.

A visual comparison of the various sources of delay against the full sixty-six-month period between Durham's indictment and his assertion of the speedy-trial right is instructive:⁵

To be sure, such an illustration does not replace the fact-intensive nature of the Barker inquiry. As the U.S. Supreme Court has emphasized, a speedy-trial analysis must be rooted in “a functional analysis of the right in the particular context of the case.” Barker, 407 U.S. at 522. Nor does the visual comparison diminish the simplicity of the underlying charge, which further counsels against excusing the Government's inaction. Nor does the depiction account for the separate assessment of any post-arrest delay.

Nevertheless, what the illustration makes plain is that the overwhelming portion of the delay—by far most of the sixty-six months—is attributable to unjustified governmental inaction. Accordingly, this factor—the “flag all litigants seek to capture,” Loud Hawk, 474 U.S. at 315—weighs in Durham's favor.

C. Durham's Assertion of His Right

A defendant's invocation of the right to a speedy trial is entitled to “strong evidentiary weight” in determining whether that right has been violated. Barker, 407 U.S. at 531–32. Moreover, courts consider both the timing and vigor with which the right is asserted. Hall, 551 F.3d at 271.

Here, it is undisputed that Durham did eventually invoke his Sixth Amendment right. However, as the Government notes, he did so in May 2025—nearly two years after his arrest and just twenty-four days before the scheduled trial date. (DE 92 at 8.) The Government also contends that Durham's multiple requests for continuances in the interim should weigh against him under this factor. (Id.)

Durham responds that he raised his claim “in due course” and did so in compliance with the Local Rules of this Court. (DE 89 at 10.) While local rules and standing orders may govern procedural matters, they cannot supplant or redefine constitutional protections. The U.S. Supreme Court has made clear that the meaning of the U.S. Constitution does not shift with jurisdiction-specific procedures. See Virginia v. Moore, 553 U.S. 164, 172 (2008) (Scalia, J.) (noting that “[constitutional] protections are not ‘so variable’ and cannot ‘be made to turn upon such trivialities’ ” (quoting another source)).

Ultimately, Durham did assert his speedy-trial right, but he did so only shortly before trial, after a lengthy post-arrest period during which he sought multiple continuances. While this delay does not negate the assertion, it does diminish its evidentiary weight. Thus, this factor weighs in the Government's favor.

D. Prejudice to Durham in Mounting a Defense

The final factor—prejudice—must be evaluated in the light of the interests the speedy-trial right is designed to protect. Barker, 407 U.S. at 532. These interests are:

(i)  preventing oppressive pretrial incarceration;

(ii)  minimizing anxiety and concern of the accused; and

(iii) limiting the possibility that the defense will be impaired.

Id. Of these, the third—impairment of the defense—is the most serious, as it directly implicates the fairness of the proceeding. As the U.S. Supreme Court has observed, such impairment “skews the fairness of the entire system.” Doggett, 505 U.S. at 654.

In this case, the first two forms of prejudice are not implicated. Because the delay occurred before Durham's arrest, and he was unaware of the indictment during that period, there was no oppressive pretrial incarceration or prolonged anxiety related to pending charges. See Lozano, 962 F.3d at 781; Lloyd, 645 F. App'x at 279 n.5.

Thus, the analysis turns solely on whether the delay impaired Durham's ability to mount a defense. The Constitution does not demand “affirmative proof of particularized prejudice” in every speedy-trial case. Doggett, 505 U.S. at 655. Rather, delays approaching or exceeding one year are “presumptively prejudicial,” United States v. Thomas, 55 F.3d 144, 149 (4th Cir. 1995) (quoting with approval Dogett, 505 U.S. 652 n.1), and this presumption gains strength as the delay lengthens. Doggett, 505 U.S. at 655–56 (citation omitted).

Although Fourth Circuit precedent generally requires a showing of actual prejudice for delays of fifteen months or more, Lloyd, 645 F. App'x at 278, other circuits have held that prolonged delay—particularly near or beyond three years—may support a finding of prejudice without individualized proof. See United States v. Ferreira, 665 F.3d 701, 708 (6th Cir. 2011) (collecting cases finding that delays approaching three years can, under the circumstances, support the prejudice factor).

In this case, the Court need not decide whether the thirty-one months of unjustified delay are sufficient alone to excuse the absence of a more particularized showing. Durham has identified specific lost impeachment material that, in the context of a straightforward felon-in-possession charge, meaningfully undermines his ability to challenge the Government's case. (See DE 89 at 14.) This loss establishes prejudice under the fourth Barker factor.⁶

In sum, the Government's delay was negligent and prolonged and “is neither extenuated, as by [Durham's] acquiescence, nor persuasively rebutted[.]” Doggett, 505 U.S. at 658 (footnote and citation omitted). Because the first, second, and fourth Barker factors all weigh in Durham's favor, the Court finds a violation of Durham's constitutional right to a speedy trial occurred.

IV. CONCLUSION

For the reasons set forth above, Defendant William Earl Durham, III's Motion to Dismiss for Speedy Trial Violation (DE 89) is GRANTED. All remaining pending motions are hereby denied as moot.

IT IS SO ORDERED.

FOOTNOTES

1.   Counting from December 2019 until March 2023.

2.   Woolfolk dealt with a single-count controlled-substances offense. 399 F.3d at 594. While this case does not, the charged offense is simple.

3.   Determining whether law enforcement exercised due diligence requires more than a cursory acknowledgment of activity; it demands an inquiry into the nature, frequency, and adequacy of those efforts under the totality of circumstances. See Doggett, 505 U.S. at 656–57 (distinguishing between “diligent pursuit” and “negligent delay”).Although TFO Yazici testified that he performed periodic surveillance and conducted database research, the record reflects that these efforts were irregular, undocumented in their duration, and largely unproductive over a period spanning more than three years. The Court finds it significant that, for example:• Surveillance of Durham's known addresses occurred roughly every six months with no apparent adjustment in strategy;• There is no indication that Yazici contacted known associates of Durham or his employer;• No subpoenas or search warrants were sought or issued; and• The case was not transferred to the Marshals until March 2023, despite the absence of meaningful progress for more than three years.Thus, this case is not one in which agents took active, escalating steps to apprehend a fugitive. Rather, the evidence here demonstrates what the U.S. Supreme Court has termed “persistent neglect.” Doggett, 505 U.S. at 657. While the Court is mindful that limited resources and caseload burdens must inform decision-making, the Sixth Amendment does not permit indefinite delays premised on routine but ineffective investigative practices.Accordingly, while TFO Yazici's conduct was not undertaken in bad faith, the absence of diligence nonetheless does not justify the intervening delay. Only one month of this period is fairly attributed to valid law enforcement activity under Barker.

4.   Courts assessing pandemic-related delay have generally recognized that COVID-19 created extraordinary and unavoidable disruptions to criminal justice operations, particularly in 2020 and 2021. See, e.g., United States v. Pair, 84 F.4th 577, 589–90 (4th Cir. 2023). However, as other courts have cautioned, such disruptions do not automatically justify extended periods of investigative inactivity.For example, in United States v. Scott, 2024 WL 3498645, at *2 (D.S.C. July 22, 2024), the district court acknowledged that the COVID-19 pandemic constituted an extraordinary circumstance but emphasized that it did not relieve the government of its obligation to pursue cases with reasonable diligence. There, the court held that while certain periods of delay caused by pandemic-related court closures were valid, other periods of government inaction—where there was no clear showing of how COVID-19 prevented meaningful investigative steps—could not be excused. Id. at *3.This Court finds Scott persuasive in its delineation between unavoidable institutional delay and discretionary agency decisions. Here, while TFO Yazici testified that the pandemic imposed personal and professional constraints, including illness and family obligations, the record does not reflect a consistent institutional or logistical barrier to conducting meaningful investigative activity throughout the entire period. Notably, TFO Yazici remained on duty during the pandemic, continued managing nearly ninety cases, and conceded that some of those cases were more complex than this one. He did not testify that agency policies, public health orders, or judicial restrictions categorically prevented him from escalating his efforts to locate Durham.Accordingly, the Court finds that a limited portion of the delay attributable to the pandemic—no more than seven months—may be validly attributed to pandemic-related disruptions. Beyond that, the Government has not demonstrated that the COVID-19 crisis prevented the execution of reasonable investigative steps or required the multiyear stagnation seen in this case. In this respect, the reasoning in Scott and Pair confirms that COVID-19, while a significant factor, does not operate as a blanket justification for investigatory inaction.

5.   To quantify the delay, the Court assigns a value of “1” to each month between December 2019 (excluding November 2019, the month in which the indictment issued and the Sixth Amendment was triggered) and May 2025, when Durham moved to dismiss. This results in sixty-six months. Each month represents about 1.52% of the total period. Multiplying this percentage by the number of months attributable to each category of delay yields a proportional breakdown of the sources of delay over the entire relevant period.

6.   Durham contends that the prejudice resulting from the Government's delay includes the loss of critical impeachment material that would have been available had the case been brought to trial earlier. Specifically, he argues that he “can no longer access or locate social media posted on Facebook following his February 5, 2019 arrest” that would have been exculpatory impeachment material. (DE 89 at 14.)This argument is persuasive. In cases where, as here, possession is in issue, the government's evidence likely turns heavily on the credibility or actions of a single investigative agent. In such cases, prejudice from the loss of impeachment tools can be particularly acute. Delayed disclosure, fading memories, or the absence of contemporaneous documentation concerning investigatory conduct can materially limit the defense's ability to probe investigative rigor, motive, or procedural irregularities. Thus, the erosion of avenues of impeachment has a measurable impact on trial fairness.Accordingly, the Court finds that the lost opportunity to challenge the integrity and reliability of the Government's investigation—especially where the record reveals long, unexplained gaps in investigative activity—satisfies the requirement of specific prejudice under the fourth Barker factor. This is particularly true where, as here, the delay was not attributable to the defendant and was largely unjustified. See Doggett, 505 U.S. at 655–58.

Joseph Dawson, III, United States District Judge