United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING PART DENYING
IN PART MOTION TO DISMISS
District Judge David Nuffer
Travis Fritzsching moves to dismiss this case with prejudice due
to violations of the Speedy Trial Act. The United States
concedes that dismissal of the indictment is appropriate due
to a violation of the Speedy Trial Act, but argues that
dismissal should be without prejudice.
United States filed a complaint against Mr. Fritzsching on
November 24, 2015. On the same day, he appeared for
arraignment before Magistrate Judge Furse. On December 2,
2015, a federal grand jury indicted Mr. Fritzsching in a two-
count indictment charging receipt of child pornography and
possession of child pornography. Mr. Fritzching was arraigned
on the charges on December 3, 2015 and a trial was scheduled
for February 8, 2016.
January 4, 2016, Mr. Fritzsching filed a motion to continue
the trial,  which tolled the time for Speedy Trial Act
calculations. On January 6, 2016, the motion was granted,
finding under 18 U.S.C. § 3161(h)(7) that “the
ends of justice served by such a continuance outweigh the
best interest of the public and defendant in a speedy
trial” to exclude the time between February 8,
2016 and the new trial date of May 9, 2016.
April 12, 2016, Mr. Fritzsching filed a second motion to
continue the trial.This motion tolled the time for Speedy
Trial Act calculations. The motion was granted to allow
reasonable time necessary for the effective preparation and
potential trial defense under 18 U.S.C. §
3161(h)(7)(B)(iv). The time between the date of the order and
the new trial date of July 26, 2016 was excluded from the
speedy trial computation.
June 25, 2016, Mr. Fritzsching filed a third motion to
continue the trial. This motion tolled the time for Speedy
Trial Act calculations. The motion was granted, finding
“under 18 U.S.C. § 3161(h)(7)(B)(iv) that
additional time was needed to effectively prepare for trial,
taking into account the exercise of due diligence by defense
counsel.” The time between the date of the order and
the new trial scheduled for November 7, 2016 was excluded
from the speedy trial computation.
Fritzsching, through new counsel, filed a motion to suppress
on September 30, 2016. After an evidentiary hearing and
post-hearing briefing, the motion to suppress was denied by
written order on January 26, 2017. It is undisputed that the
time between the filing of the motion to suppress and the
order was properly excluded under the Speedy Trial Act.
January 26, 2017, the court also scheduled trial for March 6,
Fritzsching filed a motion to continue the trial on February
13, 2017,  which was denied for failing to comply
with Speedy Trial Act requirements.
February 15, 2017, Mr. Fritzsching filed an amended motion to
continue trial and a motion to dismiss pursuant to the
Speedy Trial Act.
time between the entry of the order denying the motion to
dismiss on January 26, 2017 and filing of the motion to
continue on February 15, 2017 was not excluded from the
Speedy Trial Act calculations resulting in a violation of 18
amended motion to continue trial was granted on February 16,
2017. In the order, trial was reset for April
24, 2017, and the time between February 16, 2017 and April
24, 2017 was excluded for purposes of Speedy Trial Act
Fritzsching's current motion to dismiss also tolls
the time for Speedy Trial Act calculations.
parties do not dispute that a Speedy Trial Act violation has
occurred which requires the case to be
dismissed. But they do dispute whether the case
should be dismissed with or without prejudice. When
dismissing a case under the Speedy Trial Act “the
district court retains discretion to determine whether the
indictment is dismissed with or without
prejudice.” The Speedy Trial Act directs:
In determining whether to dismiss the case with or without
prejudice, the court shall consider, among others, each of
the following 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 this chapter and on the administration of
“The Supreme Court has indicated that prejudice to the
defendant occasioned by the delay should also be considered
in determining whether to dismiss an indictment with or
without prejudice.” But application of the
“severe sanction of dismissal with prejudice . . .
should be reserved for more egregious violations . . . and
[is a sanction] ill-suited to an isolated and inadvertent
violation.” Each of the factors listed in 18 U.S.C.
§ 3162(a)(2) will be considered below.
Seriousness of the Offense
the court determines the offense committed by the defendant
is serious, this factor weighs in favor of dismissing without
prejudice.” “One way the district court can
measure the seriousness of an offense is by considering the
length of sentence Congress has adopted for that
offense.” Defendant Fritzsching is charged with
Receipt of Child Pornography under 18 U.S.C. §
2252(A)(a)(2) and Possession of Child Pornography under 18
U.S.C. § 2252(A)(a)(5)(B). Each of these charges carries
a maximum prison term of 20 years. Further, a conviction of
receiving child pornography carries a mandatory minimum
sentence of five years ...