United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
Audley Crable asserts that the government delayed the
Indictment violating his Due Process rights under the Fifth
Amendment. As a result of this alleged unconstitutional
pre-indictment delay, Mr. Crable moves the court to dismiss
all counts of the Indictment. Doc. 23.
court heard evidence and argument on this matter on September
29, 2017. During that hearing, Mr. Crable requested that the
court defer its ruling on the pre-indictment delay issue
until the close of evidence, or, at least, allow Mr. Crable
to renew his motion at that time. The court expressed its
desire to decide the issue pre-trial because Mr. Crable had
filed a pretrial motion. But, the court explained that its
pretrial ruling would not keep Mr. Crable from renewing his
motion later. The court allowed Mr. Crable seven days to
supplement his Motion to Dismiss with authority supporting a
renewed motion at the close of evidence. The government was
given seven days to respond to the supplement. Both parties
have filed those additional briefs (Docs. 29 & 30).
court is now ready to rule on the pre-indictment delay issue.
For the reasons discussed below, the court denies Mr.
Crable's Motion to Dismiss (Doc. 23), but concludes that
Mr. Crable may renew his motion during trial or at the close
of evidence if he so chooses.
Factual Background and Procedural History
November 14, 2011, Mr. Crable received a nine-month suspended
sentence in lieu of twelve months' probation for
unrelated charges in the Shawnee County District Court in
days later, on November 19, 2011, Mo's Express
Convenience Store located at 810 Southeast 15th Street,
Topeka, Kansas, was robbed by an armed suspect. The suspect
fired several rounds at two clerks during the robbery and
while both clerks sustained injuries, each of them survived.
Mr. Crable allegedly committed these acts and he now stands
accused of them in the current Indictment.
December 29, 2011, the Topeka Police Department
(“TPD”) learned of Mr. Crable's possible
involvement in the Mo's Express robbery from a Ms.
Joiner, an inmate at Riley County Jail arrested on unrelated
charges. She claimed Mr. Crable told her details about his
involvement in the crime.
January 11, 2012, TPD received additional information about
Mr. Crable's possible involvement in the Mo's Express
robbery from another inmate at Riley County Jail. This inmate
was arrested on unrelated charges. He claimed Mr. Crable had
talked about his involvement while this inmate was attempting
to buy marijuana from a residence Mr. Crable allegedly had
January 15, 2012, Mo's Express Convenience Store was sold
to Phillips 66 after its co-owner was imprisoned for
March 20, 2012, TPD detained Mr. Crable on three unrelated
charges, holding him in the Shawnee County Jail. Mr. Crable
has remained incarcerated at multiple correctional facilities
from this date to present.
8, 2012, TPD interviewed Mr. Crable about his suspected
involvement in the Mo's Express robbery.
January 11, 2013, a third inmate arranged to make a sworn
statement in exchange for immunity and release on bond on his
current cases. The statement implicated Mr. Crable in the
26, 2013, TPD applied for an arrest warrant for Mr. Crable
for Attempted Murder and Aggravated Robbery. But, no warrant
was ever issued and Mr. Crable was not arrested as a result
of this application.
June 2013 and August 2015, TPD did not record any activity in
the robbery case file. On August 18, 2015, the FBI began
investigating the Mo's Express robbery for the first
time. FBI agents began by interviewing Mr. Crable on
September 9, 2015.
January 21, 2016, the FBI interviewed Derrick Crawford, a
federal inmate who is the former boyfriend of Ms. Joiner-the
Riley County inmate who first had implicated Mr. Crable in
the robbery back in 2012. Mr. Crawford claimed he had heard
that either Mr. Crable or another individual was involved in
the Mo's Express robbery from the individual that made
the sworn statement on January 11, 2013. The FBI learned
about Mr. Crawford's professed knowledge during their