United States District Court, D. Maine
ORDER ON MOTION TO DISMISS INDICTMENT
Torresen United States Chief District Judge.
The Speedy Trial Act requires that the government must issue
an indictment within thirty days of a defendant's arrest.
See 18 U.S.C. § 3161(b). If an indictment is
not filed within that time, the complaint must be dismissed.
See 18 U.S.C. § 3162(a)(1). The Defendant filed
a motion to dismiss the Indictment with prejudice for
violation of the Speedy Trial Act. (ECF No. 61). The
government here concedes that there has been a violation of
§ 3161(b). The government further concedes that the
proper remedy is dismissal. Section 3162(a)(1) leaves to the
court's discretion whether the dismissal should be with
or without prejudice, and sets forth factors for the court to
use to guide that decision. Neither type of dismissal is the
presumptive remedy for a violation. See United States v.
Taylor, 487 U.S. 326, 334 (1988).
deciding whether the dismissal should be with or without
prejudice, I consider the following statutory factors: the
seriousness of the offense; the facts and circumstances of
the case which led to the dismissal; and the impact of a
reprosecution on the administration of the Speedy Trial Act
and on the administration of justice. 18 U.S.C. §
3162(a)(1); Taylor, 487 U.S. at 333. In addition,
although not a statutory factor, I will consider the presence
or absence of prejudice to the Defendant. Barker v.
Wingo, 407 U.S. 514, 532 (1972). The Supreme Court has
observed that Congress left the decision to dismiss with or
without prejudice “to the guided discretion of the
district court.” Taylor, 487 U.S. at 335. And
while the Speedy Trial Act requires the court to consider
each of the statutory factors, it does not mandate any
particular formula or order of decision-making.
Seriousness of the Offense
Defendant is charged in the Indictment with two counts of
interstate stalking, in violation of 18 U.S.C. §§
2261A(2)(B) and 2261(b)(5). The Defendant points out that
this is a Class D crime and, as such, carries a maximum of
five years imprisonment, which is on the lower end of federal
felonies. The Complaint in this case, however, alleges the
online harassment of two women. According to the affidavit in
support of the Complaint, the Defendant and victim 1 were
acquaintances who had a singular sexual encounter in 2014.
Aff. of Special Agent Pamela A. Flick ¶ 3 (ECF No. 2).
Although the Complaint charges conduct that occurred between
January 2017 and May 2017, the affidavit in support of the
Complaint alleges that the unwanted electronic contact began
in August of 2014 and continued through May 2017. Flick Aff.
Agent Flick avers that the Defendant's intimidating
conduct continued even after he received two visits from
officers of the Brick Township New Jersey Police Department
who advised him to stop contacting the victims and served him
with two notices to discontinue the harassing conduct. Flick
Aff. ¶ 7. The Defendant's harassing and threatening
behavior has caused both victims substantial emotional
distress. Flick Aff. ¶ 10. I consider the allegations of
repeated attempts to contact victims 1 and 2 over the course
of many years, despite numerous requests to stop, serious.
Circumstances which Led to the Violation of the Act
parties agree that the government exceeded the 30-day speedy
trial clock by 17 days. The Government contends that it
exceeded the 30 day clock because of “an oversight by
[Government] counsel” and not intentional misconduct.
Obj. to Def.'s Mot. to Dismiss 9 (ECF No. 63).
the time of the Defendant's arrest on June 1, 2017 until
December 21, 2017, the parties were involved in plea
discussions and negotiations. During that time, the Court
granted five joint requests for extensions of time
to indict. The parties requested these extensions to attempt
to resolve the case without the need for an indictment, to
provide time for the Defendant to obtain medical treatment,
and to allow defense counsel to obtain and review the
Defendant's medical records.
December 21, 2017, after reviewing records in the case, the
Government communicated to defense counsel that pretrial
diversion was unlikely. Def's Ex. E (ECF No. 61-5). The
parties again agreed to ask for additional time and the Court
granted their joint request to extend the time to indict
until January 26, 2018. Speedy Trial Order (ECF No. 41). In
early January, the Government moved to revoke bail because of
an alleged bail violation involving more emails to the
victims. The Government ultimately withdrew the motion. While
the Government investigated the alleged bail violation, the
Defendant requested that the FBI and the United States
Attorney's Office research two threatening emails he
received in 2016 that he believed were from friends of the
victims. Defense counsel also asked the Government to seek
authorization for a favorable, binding plea agreement. The
Government claims that the proposed plea agreement
contemplated the Defendant's plea to an information,
rather than an indictment. Pending approval of the proposed
plea agreement, Government did not present the case for
indictment during the February 8-9, 2018, grand jury session.
The speedy trial clock expired on February 12,
February 15, 2018, the Government contacted the Clerk's
Office to verify the date of the expiration of the speedy
trial clock and was informed that the clock had expired on
February 12, 2018. Thereafter, the parties discussed the
expiration of the speedy trial clock and were unable to come
to an agreement. The Government presented the case to the
next grand jury and the Defendant was indicted on March 2,
that the Government's failure to move for another
continuance under the Speedy Trial Act between January and
mid-February, 2018 was inadvertent. Because the circumstances
of this case present no showing of bad faith or a pattern of
neglect by the United States Attorney's office, this
factor weighs against dismissal with prejudice. See
United States v. Barnes, 159 F.3d 4, 17 (1st Cir. 1998)
(“Where, as here, the actual speedy trial violation
resulted solely from neglect rather than intentional
misconduct, that circumstance tips ever so slightly in favor
of dismissal without prejudice.”); United States v.
Hernandez, 863 F.2d 239, 244 (2d Cir. 1988) (“an
‘isolated unwitting violation' of the Speedy Trial
Act cannot support a dismissal with prejudice” (quoting
Taylor, 487 U.S. at 339)).