United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
A. KIMBALL, UNITED STATES DISTRICT JUDGE
Gary Mark Hill filed a Motion to Dismiss based on violations
of the Speedy Trial Act. The court granted the
Defendant's motion and allowed the parties to submit
additional briefing on whether the court should dismiss the
indictment with or without prejudice. On December 11, 2018,
the court held a hearing on the issue of prejudice. Based on
the briefing and the arguments at the hearing, the court
issues this memorandum decision and order dismissing the
indictment without prejudice.
January 5, 2018, the United States filed a Felony Information
against Defendant alleging a violation of 18 U.S.C. §
922(a)(1)(A), Dealing in Firearms Without a License. The
Defendant made an initial appearance before the court on
March 9, 2018. The parties informed the court that they had
reached a negotiated settlement; that Defendant waived
indictment; and that the Defendant sought to plead guilty to
the charge. Transcript of March 9, 2018 Initial Appearance
before Magistrate Judge Wells at pages 4-5 and 9-10.
Defendant was arraigned on the Felony Information on March 9,
April 12, 2018, the court scheduled a Change of Plea Hearing
to be heard before Judge Kimball on May 8, 2018. At the May
8, 2018 hearing, Mary Corporon, the Defendant's counsel
at the time, moved to withdraw as counsel. Jay M. Philpot
requested to be substituted in as counsel for the Defendant.
Mr. Philpot informed the court that his client did not intent
to plead guilty to the Felony Information as anticipated. Mr.
Philpot explained that he was trying to get up to speed as
quickly as possible. Mr. Philpot requested a trial date in
November of 2018 because he had pretrial motions he wanted to
file and because he had a two-month federal jury trial
beginning in September. The Court expressed concern about
Speedy Trial problems with a November trial setting. Mr.
Philpot agreed that the time between May 8, 2018 and the new
trial date should be excluded for purposes of the Speedy
Trial calculations based upon the “ends of
justice” if the trial was pushed back to November. The
court stated, “I think your suggestion is a good
one.” May 8, 2018 Transcript at pages 5-6.
was indicted by a Grand Jury on May 16, 2018. The Indictment
charged Defendant with two counts. Count 1 alleges a
violation of 26 U.S.C. § 5861(a), Unlawfully Engaging in
the Business of Importing and Dealing Machineguns; Count 2
alleges a violation of 18 U.S.C. § 922(o), Illegal
Possession and Transfer of Machineguns. The United States
moved to dismiss the Felony Information on June 14, 2018 and
the court granted the motion that same day. Defendant
appeared before Magistrate Judge Paul M. Warner on June 13,
2018. Defendant was arraigned on the Indictment. Mr. Philpot
asked Magistrate Judge Warner for a trial date “at
least” as early as November 2018. Mr. Philpot cited
reasons related to continuity of counsel. Mr. Philpot stated,
“I'm not sure if this is helpful, but we would
understand and agree that the time would be waived.”
The Magistrate Judge declined the request for a continuance
and scheduled the trail on August 20, 2018.
United States filed proposed jury instructions, a proposed
verdict form, and a proposed witness list on July 16, 2018.
On July 17, 2018, counsel for the United States informed Mr.
Philpot that he had yet to formally enter his appearance. On
July 19, 2018, Chambers emailed the parties asking that Mr.
Philpot file a notice of appearance right away. On July 22,
2018, Mr. Philpot entered his formal appearance.
August 17, 2018, Defendant filed a motion to continue the
August 20, 2018 jury trial. That same day the United States
filed a supplemental motion to exclude time for purposes of
Speedy Trial computation. On August 20, 2018, the court
granted the motion to continue and excluded time between July
30, 2018 and December 10, 2018.
November 27, 2018, the court granted the Defendant's
motion to dismiss based on speedy trial act violations and
further ordered the parties to brief whether the indictment
should be dismissed with or without prejudice.
district court retains broad discretion whether to dismiss
the indictment with or without prejudice. U.S. v.
Abdush-Shakur, 465 F.3d 458, 462 (10th Cir. 2006).
Pursuant to 18 U.S.C. § 3162(a)(1)(2), “[i]n
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.” “Prejudice to the defendant is among
the other factors the text of § 3162 directs the court
to consider.” U.S. v. Abdush-Shakur, 465 F.3d
at 462. “Where the delay caused by the government is
unintentional and the district court takes it upon itself to
share in the blame for the delay, the administration of
justice is not served by dismissal with prejudice.”
Id. at 464.
court finds that this case should be dismissed without
prejudice. The Speedy Trial Act was violated for multiple
reasons, including because of the conduct of the Defendant
and his counsel. The Defendant maintained that he was going
to change his plea but failed to do so at the change of plea
hearing. The government indicated that it would accommodate
Defense Counsel's trial schedule by agreeing to continue
the trial to November of 2018, however, the parties failed to
file a continuance. Further, it appears that Magistrate Judge
Warner mistakenly calculated the Speedy Trial Act deadlines
based on the new indictment, instead of the date of the
Change of Plea hearing. There was no malfeasance by the
government that caused the Speedy Trial Act to run and the
Defendant was not prejudiced by the actions of the United
the Tenth Circuit has explained that if “the court
determines the offense committed by the defendant is serious,
this factor weighs in favor of dismissing without
prejudice.” United States v. Saltzman, 984
F.2d 1087, 1093 (10th Cir. 1993). The seriousness of
Defendant's crimes weighs in favor of dismissal without
prejudice. The indictment alleges two serious felony
violations. Count 1 charges a violation of 26 U.S.C. §
5861(a), Unlawfully Engaging in the Business of Importing and
Dealing Machineguns, which is punishable by up to ten years
imprisonment and a fine of up to $250, 000.3839 Count 2
charges a violation of 18 U.S.C. § 922(o), 40 Illegal
Possession and Transfer of Machineguns, which is punishable
by up to ten years imprisonment and a fine of up to $250,
000. More specifically, Defendant is charged with purchasing
machinegun conversion devices for Glock handguns and
repeatedly reselling the devices to undercover ATF agents for
approximately $250 each. The charges against the Defendant
are serious and this factor therefore also weighs in favor of
dismissing without prejudice.
The Defendant's Motion to Dismiss based on Speedy Trial
Act violations is GRANTED without prejudice. The charges
against the Defendant are serious, the facts and
circumstances that led to the dismissal involved
unintentional mistakes from the Defendant, the ...