UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA ) ) v. ) Criminal Case No. 22-221 (RJL) ) BENJAMIN GRABINSKI, ) ) Defendant. ) ) 4.-\ MEMORANDUM OPINION January ___!j_, 2025 [Dkt. # 36]

Before the Court is defendant Benjamin Grabinski's ("defendant" or "Grabinski")

motion to dismiss the indictment for violation of the Speedy Trial Act,

,

et seq. Def.'s Mot. to Dismiss Indictment for Violation of the Speedy Trial Act ("Def.'s

Mot.") [Dkt. #36]. Upon consideration of the parties' briefing, the oral argument held on

December 11, 2024, and the relevant law, I will GRANT IN PART defendant's motion to

dismiss and the Indictment will be DISMISSED without prejudice.

I. BACKGROUND

On June 17, 2022, the Government issued a two-count indictment charging

Grabinski with (1) attempted violation of protection of property used by foreign

governments, in violation of

(a); and (2) attempted arson, in violation of

(i). Indictment [Dkt. #11]. Grabinski allegedly threw an unlit Molotov

cocktail at the Embassy of the Peoples' Republic of China ("the Embassy"). Crim. Compl.

Ex. 1 ("Letteney Aff.") [Dkt. #1-1] ,r,r 11, 18 (Aff. of Special Agent Steven Letteney in Supp. of Crim. Compl.).

1 At the parties' request, Magistrate Judge Meriweather ordered that Grabinski be

evaluated for competency to stand trial. Order (June 17, 2022) [Dkt. #10]. Grabinski

underwent a competency evaluation at the Metropolitan Correctional Center in Chicago,

Illinois ("MCC Chicago"), after which Magistrate Judge Meriweather found him

competent to stand trial and ordered his return to D.C. for further proceedings. Min. Order

(Jan. 6, 2023); Mem. Op. (Jan. 27, 2023) [Dkt. #25]. The parties engaged in plea

negotiations-which were ultimately unsuccessful-and have been preparing for trial. On

January 10, 2024, Grabinski filed the instant motion to dismiss for violation of the Speedy

Trial Act. Def.'s Mot. The Government opposes the motion. Gov't's Opp'n to Def.'s

Mot. ("Gov-'t's Opp'n") [Dkt. #40].· I heard oral argument on December 11, 2024, and the

motion is ripe for my review.

II. LEGAL STANDARD

The Speedy Trial Act requires that a criminal defendant be brought to trial within

70 days of indictment.

(c)(l ). The statute contains numerous exceptions

which allow time to be excluded from the 70-day calculation. See

(h)(l ).

The relevant excludable time periods here are:

(A) delay resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant;

(D) delay resulting from any pretJ.ial motion, from tl1e filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion;

(F) delay resulting from t:rans}JOrtation of any defendant ...to and from places of examination or hospitalization, except that any time conswned in

2 excess of ten days from the date an order of removal or an order directing such transpmiation and the defendant's arrival at the destination hall be pre urned to be unreasonable·

(H) delay reasonably attributable to any p riod, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advi en1ent by the cow1:.

Should the Court find a Speedy Trial Act violation,it must dismiss the indictment,

either with or without prejudice.

(a)(2). The Speedy Trial Act "does not

presume that every violation of the Act ought to trigger a dismissal with prejudice" and

instead "explicitly grants discretion to the district court to decide what form of dismissal is . . . appropriate." United States v. Wright,

(D.C. Cir. 1993). Here,"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 [the Speedy Trial Act] and on the administration of

justice."

(a)(2). The Court may also consider prejudice to the defendant.

See United States v. Mclendon,

(D.C. Cir. 2019).

Ill. ANALYSIS

The parties here are diametrically opposed on the Speedy Trial Act calculation. The

Government argues that no time has passed under the Speedy Trial clock while Grabinski

claims that 175 non-excludable days have elapsed. Gov't's Opp'n 8; Def. 's Mot. 1. Their

dispute centers around three time periods. Having parsed through the docket and the

parties' arguments, I agree with the Government regarding one time period and with

3 Grabinski regarding two time periods. Unfortunately for the Government, I find that more

than 70 days have elapsed and the case must be dismissed. See 18 U.S.C. §§ 316l(c)(l ),

3162(a)(2).

I will first address the Speedy Trial time calculation before explaining why

dismissal will be without prejudice.

1. August 11, 2022 to September 16, 2022

Between August 11, 2022 and September 16, 2022, Grabinski was in transit to and

undergoing a competency evaluation at MCC Chicago. Grabinski argues that these 35 days

should count toward the Speedy Trial calculation. Def.'s Mot. 6. I disagree,- as this time

period-in fact, all of June 10, 2022 through January 6, 2023-is excluded under 18 U.S.C.

§ 316l(h)(l)(D).

This provision of the Speedy Trial Act excludes "delay resulting from any pretrial

motion, from the filing of the motion through the conclusion of the hearing on, or other

prompt disposition of, such motion." 18 U.S.C. § 316l(h)(l )(D). Here, the Government's

pretrial detention motion tolled the Speedy Trial clock beginning on June 10, 2022. See

Gov't's Oral Mot. for Temporary Detention (June 10, 2022); Gov't's Mem. in Supp. of

Pretrial Detention [Dkt. #8]. 1 This motion was not ruled on and was instead placed on the

1 Motions for pretrial detention require a hearing and thus fa]] W1der this provision of the peedy Trial Act. ee

(f)(l)(E) ("The judicial of1icer shall hold a bearing ... upon motion of the attorney for the Government"); see also United States v. Beier 2019 U.S. Dist. L XJS 192631, at *23-24 (D.D. . Nov. 6, 2019) ("The pretrial detention motion at issue here is the kind of motion for which a hearing is required."). Further, both written and oral motions can toll the Speedy Trial clock. United States v. Taylor

(D.C. Cir. 2007). 4 backbumer pending the outcome of Grabinski's competency evaluation. See Min. Order

(Nov. 2, 2022) ("Defendant shall remain detained in the interim due to the pending motion

for pretrial detention and the parties [sic] agreement that the Court should defer any

detention hearing until after it resolved the competency issue.").

Grabinski argues that the pretrial detention motion did not toll Speedy Trial time

because the delay in getting to trial did not "result[] from" the motion. Def.' s Reply in

Supp. of Mot. to Dismiss ("Def.'s Reply") [Dkt. #42] 8-14. I disagree. There is no

requirement that the motion actually caused any delay; instead, it stopped the Speedy Trial

clock automatically. See United States v. Tinklenberg,

(2011)

(holding that the Speedy Trial Act "contains no [] requirement" that "the filing of the

pretrial motion[] actually caused or was expected to cause delay of a trial"); Beier,

, at *20-21 (finding that a pretrial detention motion tolled the

Speedy Trial clock even though "the immediate focus of both the magistrate judge and the

parties [was] on the pressing issue of the defendant's competency to stand trial," not on the

motion). The Government's pretrial detention motion therefore stopped the Speedy Trial

clock on June 10, 2022, regardless of whether the motion caused any delay.

However, it did not toll the Speedy Trial clock indefinitely. Since there was never

a hearing on the motion, the clock began running again when the Court received all of the

submissions it reasonably expected in connection with the motion. See United States v.

Rice,

(D.C. Cir. 2014). As our Circuit explained in Rice:

If the court holds a hearing, the Act excludes the period of time between the filing of the motion and the conclusion of the hearing, whether or not the amount of delay that occurred was "reasonable." If the court does not hold

5 a hearing on the motion, the Act excludes the period of time between the filing of the motion and the day the court receives all the submissions it reasonably expects in relation to the motion.

(emphasis added) (internal citations omitted). The Court had all of the

information it needed to decide the pretrial detention motion on January 6, 2023, when

Grabinski was ruled competent to stand trial. See Min. Order (Jan. 6, 2023). At that point

the Court had the Government's brief in support of pretrial detention and knew whether or

not pretrial detention would be a live issue. Thus the Speedy Trial exclusion under

l (h)(l )(D) expired on that day.2 See Rice,

.

Because all time between June 10, 2022 and January 6, 2023 is excluded from the

Speedy Trial calculation, the time between August 11, 2022 and September 16, 2022 is

necessary excluded as well.

2. January 7, 2023 to April 11, 2023

As discussed above, the Speedy Trial clock restarted after January 6, 2023. Between

January 7, 2023 and April 11, 20233-a total of 96 days-Grabinski was in transit from

his competency evaluation at MCC Chicago back to Washington, D.C. While the Speedy

Trial Act excludes "delay resulting from transportation of any defendant . . . to and from

places of examination or hospitalization," it also states "that any time consumed in excess

of ten days . .. shall be presumed to be unreasonable."

(h)(l )(F).

2 While another Speedy Trial Act provision provides for a maximum 30-day exclusion while a motion is "actually under advisement," there is no indication here that Magistrate Judge Meriweather "actually" took the motion under advisement and no ruling ever issued. See

(h)(l )(H). This exclusion is therefore inapplicable aod the Speedy Trial clock restarted on January 7, 2023. 3 The Court excluded Speedy Trial time again beginning on ApriJ 12, 2023. Min. Order (Apr. 12, 2023).

6 Grabinski argues that only 10 days should be excluded here, as the remaining 86-day delay

was not reasonable. I agree.

The delay resulted from an apparent miscommunication regarding the order

directing Grabinski's return to D.C. On January 6, 2023, Magistrate Judge Meriweather

issued a minute order instructing the United States Marshals Service ("USMS") to transport

Grabinski back to D.C. Min. Order (Jan. 6, 2023). However, USMS did not initiate

Grabinski's transport, as evidently they needed a formal written order. Gov't's Opp'n 13;

Def.'s Reply 18-20. Grabinski remained at MCC Chicago until Magistrate Judge

Meriweather became aware of the problem and issued a formal order on February 27, 2023.

Order (Feb. 27, 2023)-[Dkt. #26]. Grabinski ultimately arrived in D.C. on March 28, 2023.

Gov't's Opp'n 13; Gov't's Opp'n Ex. 2 [Dkt. #40-2] 10. ,r Even though the delay here resulted from a misunderstanding, that is not sufficient

to overcome the presumption that delays longer than 10 days are unreasonable. 4 See

(h)(l )(F). The Government should have been aware of-or at least inquired

into-USMS' s policy regarding transportation orders and then monitored the situation to

make sure Grabinski was in fact in transit to D.C. Instead, Grabinski's transportation fell

4 The Government urges t11e Court to interpret Magistrate Judge Meriweather's Juue 17 2022 order as excluding all time related to transporting Grabinski to and from the compel ncy evaluation. Gov't's Opp n 6-8. While the order does state that the time rnqu.ired for tran port ... shall be excluded fr 111 Speedy Trial Act calculations, it also incorporates the "deadlines imposed by 18 U.S. . § 3l 61(h)(l)(F)-pursuant to which a delay of more than ten days for transport is presumptively unreasonable." Min.Order (June 17 2022) 2. The Government s interpretation o:f the order would render Magistrate Judge Meriweather s statement about the 10-day presumption meaningless. The more natural reading is that Magistrate Judge Meriweather's statement that 'Lhe time required for transport ... shall be excluded' was simply acknowledging that the excluded time could be longer than 10 days should the additional delay be reasonable. I therefore find ·U1at the order does not exclude all tinie related to Grabinski s transport to and from his competency evaluation. 7 through the cracks and he waited at MCC Chicago for weeks. Thus I find 86 of the 96

transportation days unreasonable and non-excludable under the Speedy Trial Act. See

United States v. Bauer,

(D.D.C. 2003) (finding that, "[w]hile no

one questions the good faith of anyone involved," it was nevertheless unreasonable when

an error in delivering a transportation order to USMS caused a delay longer than 10 days).

3. June 6, 2023 to July 29, 2023

Between June 6, 2023 and July 29, 2023, 5 the parties were engaged in plea

negotiations and the Government was consulting with the U.S. Department of State

regarding diplomatic issues related to this case. Gov't's Opp'n 5 n.1. However, no request

was made to exclude this time and the docket does not reflect any stoppage of the Speedy·

Trial clock here; additionally, there is no applicable exception under

(h)(l ). The Government asserts that "[t]o the extent that such a request [to exclude

Speedy Trial time] was not made on the record during the June 6, 2023 hearing, that was

an inadvertent oversight by the Government." Gov't's Opp'n 5 n.1. While I appreciate

the Government's candor regarding this mistake, it does not change the fact that the Speedy

Trial clock continued to run during this time period. Thus 54 days are added to the Speedy

Trial calculation.

I have now found that 140 days of non-excludable time have elapsed. This is more

than enough to mandate dismissal under the Speedy Trial Act. See

(c)(l), 3162(a)(2).

5 The Court excluded Speedy Trial time again beginning on July 30, 2023. Min. Order (July 31, 2023). 8 B. Dismissal Without Prejudice is Appropriate

The next question is whether the case should be dismissed with or without prejudice.

This is a matter left to the Court's discretion. See Wright,

. The relevant

factors-the seriousness of the offense, the circumstances which led to dismissal, the

impact of reprosecution on the administration of the Speedy Trial Act, and prejudice to the

defendant-weigh in favor of dismissal without prejudice. See

(a)(2);

McLendon,

. First, the alleged facts are serious; if proven, they reflect a

premeditated plan to throw a Molotov cocktail at a foreign embassy. See Letteney Aff.;

Gov't's Opp'n 14-15.

Second, -the circumstances surrounding the delay in Grabinski's trial are

unfortunate, but they do not constitute "bad faith" or a "pattern of neglect" warranting

dismissal with prejudice. See United States v. Taylor,

(1988); Wright,

("[A]n important part of the 'facts and circumstances' inquiry is whether the

Government has engaged in a 'pattern of neglect,' or in contrast, whether the violation

represents an 'isolated unwitting violation."' (quoting Taylor,

)). There is

no evidence that the Government acted in bad faith or caused the delay in order to gain a

tactical advantage. The delay in Grabinski's transportation from MCC Chicago appears to

have been an "isolated unwitting violation" rooted in a miscommunication. See Wright,

. The additional delay included in the Speedy Trial calculation stemmed from

9 the parties' plea negotiations. Neither suggests a pattern of neglect warranting dismissal

with prejudice.6

Third, reprosecution will not have a significant impact on the administration of

justice or the Speedy Trial Act. Grabinski asks the Court to dismiss the case with prejudice

because it "sends a stronger message than dismissal without prejudice." Def.'s Mot. 8.

While I strongly encourage the Government to be more cognizant of Speedy Trial issues

in the future, I fully expect dismissal without prejudice will be sufficient motivation for the

Government to do so. See Mclendon,

(explaining that "'[d]ismissal

without prejudice is not a toothless sanction,' and lower courts should refrain from relying

on 'the greater deterrent effect of barring reprosecution' alone to support a dismissal-with

prejudice because that would render the § 3162(a)(2) factors 'superfluous, and all

violations would warrant barring reprosecution. "' (quoting Taylor,

)).

Finally, I find that allowing reprosecution will not prejudice defendant. During oral

argument on December 11, 2024, the Government explained that if the Court dismisses the

case without prejudice, they could likely reindict Grabinski quickly and proceed to trial on

approximately the same schedule as we are on now.7 Moreover, Grabinski has not argued

6 Even ifl consider the delays in Grabinski's transport to his competency evaluation---a time period which i excluded becaus of th Government's pretrial detention motion, s e supra Section III.A.I-that does not support a pattern of neglect either. These delays were largely due to COVID-19 quarantine requirements and restrictive movement protocol . Gov t's Opp'n 11-13· Gov t's Opp'n Ex. 2 ,i,i 5-7. 7 Although a significant amount of Speedy Trial time bas elapsed that does not necessarily support an

argument for dismissal with prejudic . Our Circuit has recognized that even lengthy periods of delay can merit dismissal with ut prejudice depending on the Court's analysis of the three statutory factors. See McLendon,

. that he has lost access to any witnesses or evidence as a result of the delay.

.

I will therefore dismiss the case without prejudice.

IV. CONCLUSION

For the foregoing reasons, Grabinski's motion to dismiss will be GRANTED IN

PART. The motion is denied to the extent Grabinski seeks dismissal with prejudice. The

Indictment shall be DISMISSED without prejudice. An Order consistent with the above

accompanies this Opinion.

United States District Judge

11