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United States v. Fritzsching

United States District Court, D. Utah

March 28, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TRAVIS FRITZSCHING, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING PART DENYING IN PART MOTION TO DISMISS

          District Judge David Nuffer

         Defendant Travis Fritzsching moves[1] to dismiss this case with prejudice due to violations of the Speedy Trial Act.[2] 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.

         FACTS

         1. The 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.

         2. On January 4, 2016, Mr. Fritzsching filed a motion to continue the trial, [3] 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”[4] to exclude the time between February 8, 2016 and the new trial date of May 9, 2016.

         3. On April 12, 2016, Mr. Fritzsching filed a second motion to continue the trial.[5]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).[6] The time between the date of the order and the new trial date of July 26, 2016 was excluded from the speedy trial computation.

         4. On June 25, 2016, Mr. Fritzsching filed a third motion to continue the trial.[7] 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.”[8] The time between the date of the order and the new trial scheduled for November 7, 2016 was excluded from the speedy trial computation.

         5. Mr. Fritzsching, through new counsel, filed a motion to suppress on September 30, 2016.[9] After an evidentiary hearing and post-hearing briefing, the motion to suppress was denied by written order on January 26, 2017.[10] 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.

         6. On January 26, 2017, the court also scheduled trial for March 6, 2017.[11]

         7. Mr. Fritzsching filed a motion to continue the trial on February 13, 2017, [12] which was denied for failing to comply with Speedy Trial Act requirements.[13]

         8. On February 15, 2017, Mr. Fritzsching filed an amended motion to continue trial[14] and a motion to dismiss pursuant to the Speedy Trial Act.[15]

         9. The 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 days.

         10. The amended motion to continue trial was granted on February 16, 2017.[16] 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 calculations.

         11. Mr. Fritzsching's current motion to dismiss[17] also tolls the time for Speedy Trial Act calculations.

         DISCUSSION

         The parties do not dispute that a Speedy Trial Act violation has occurred which requires the case to be dismissed.[18] 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.”[19] 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 justice.[20]

“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.”[21] 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.”[22] Each of the factors listed in 18 U.S.C. § 3162(a)(2) will be considered below.

         1. Seriousness of the Offense

         “If the court determines the offense committed by the defendant is serious, this factor weighs in favor of dismissing without prejudice.”[23] “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.”[24] 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 ...


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