United States District Court, D. Rhode Island
J. McConnell, Jr. United States District Judge
government has charged Randy Lutz in an indictment with
various counts arising from his alleged extortion of his
former employer. He has filed a Motion to Dismiss the
indictment (ECF No. 25) alleging that the government was late
in producing discovery causing a delay in bringing this case
to trial and therefore the Court should exercise its
discretion to dismiss the indictment.
Court declines to dismiss the indictment under Federal Rule
of Criminal Procedure 48(b). That Rule allows the Court to
"dismiss an indictment, information, or complaint if
unnecessary delay occurs in . . . bringing a defendant to
trial." Fed. R. Crim. P. 48(b)(3). Rule 48(b) does not
require the Court to find a violation of a defendant's
Sixth Amendment right to a speedy trial. United States v.
Correia, 531 F.2d 1095, 1099 (1st Cir. 1976). However,
courts may consider the same factors when deciding whether to
dismiss an indictment under Rule 48(b). See, e.g., United
States v. Judge, 425 F.Supp. 499, 503 (D. Mass. 1976);
United States v. Dowl, 394 F.Supp. 1250, 1257 (D.
Minn. 1975). As set forth by the United States Supreme Court
in Barker v. Wingo, those four factors are: (1) the
length of delay, (2) the reason for the delay, (3) the
defendant's assertion of his right to a speedy trial, and
(4) prejudice to the defendant. 407 U.S. 514, 530 (1972).
the length of the delay here is not so long as to counsel in
favor of dismissal. The government indicted Mr. Lutz less
than one year ago, on August 15, 2017. ECF No. 12. The First
Circuit has observed that, "[g]enerally, delay [between
indictment and trial] becomes prejudicial around the one-year
mark." United States v. Souza, 749 F.3d 74, 81
(1st Cir. 2014). It is thus debatable whether this case has
even "crossed the threshold dividing ordinary [delay]
from 'presumptively prejudicial' delay."
Doggett v. United States, 505 U.S. 647, 651-52
(1992) (quoting Barker, 407 U.S. at 530). Because of
the relatively short time that has elapsed, this factor
weighs against dismissal.
the reason for delay, does weigh in favor of Mr. Lutz. Mr.
Lutz requested discovery on November 6, 2017; however, the
government failed to provide it until March 9, 2018. Although
it cites voluminous data and logistical problems in producing
the discovery, the government acknowledges it bears
responsibility for this delay. ECF No. 27 at 5. This factor,
then, weighs in favor of dismissal.
Mr. Lutz's failure to assert his right to a speedy trial
must weigh against him. A defendant "must 'give some
indication, prior to [his] assertion of a speedy trial
violation, that [he] wishes to proceed to trial.'"
United States v. Maxwell, 351 F.3d 35, 41 (1st Cir.
2003) (quoting United States v. Trueber, 238 F.3d
79, 88 (1st Cir. 2001)). Px-ior to this motion, Mr. Lutz has
given no indication of his desire to proceed to trial, and so
this factor also weighs against dismissal.
the Court turns to prejudice, which must be assessed in light
of three interests. The first is to prevent oppressive
pretrial incarceration. Barker, 407 U.S. at 532. Mr.
Lutz is not detained, and is instead subjected to conditions
of pretrial release. These conditions, while restrictive, are
not as oppressive as detention, and so this factor does not
weigh in favor of dismissal.
second interest is to minimize the anxiety and concern of the
accused. Id. The First Circuit has "not
weighted] this heavily, especially where [the defendant] took
no early action to expedite his trial . . . [including] by
demanding an earlier trial. . . . 'While this type of
prejudice is not to be brushed off lightly, considerable
anxiety normally attends the initiation and pendency of
criminal charges, ' hence only undue pressures are
considered."' United States v.
Santiago-Becerril, 130 F.3d 11, 23 (1st Cir. 1997)
(quoting United States v. Henson, 945 F.2d 430, 438
(1st Cir. 1991)). Mr. Lutz has not presented any undue
pressures, and so this factor also does not cut in favor of
third and final interest is limiting the possibility that the
defense will be impaired. Barker, 407 U.S. at 532.
Mr. Lutz need not demonstrate specifically how his defense
will be impaired; however, the prejudice the Court will
presume will correspond with the length of the delay. See
Doggett, 505 U.S. at 657; id. at 652 n.1.
Because the length of delay here has been relatively
brief-less than one year-this factor also does not weigh in
favor of dismissal.
the Defendant's Motion to Dismiss the Indictment (ECF No.
25) is DENIED.
 In as much as Mr. Lutz argues that the
government has violated his rights under the Speedy Trial
Act, his motion also must fail. Under the Act, trial must
commence within seventy countable days from the date the
government indicts a defendant, or the date the defendant
appears before the judicial officer, whichever is later. 18
U.S.C. § 3161(c)(1). By the Court's count, only
twenty-six countable days have elapsed since the government
arraigned Mr. ...