US v . Luedecke CR-06-099-JD 07/20/06 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America v. Criminal N o . 06-cr-099-JD Opinion N o .

David Luedecke

O R D E R

David Luedecke has moved to dismiss the criminal charges against him with prejudice on the ground that the government has failed to bring him to trial promptly in violation of the Speedy Trial Act,

. 1 The government objects.

Background

In an indictment returned in this court on July 1 3 , 2005,

Luedecke was charged with a single count of bank fraud in

violation of

. 2 The indictment alleged that

Luedecke wrote a number of checks on an account he held at

Citizens Bank between approximately August 2004 and October 2004,

knowing that the account had insufficient funds to cover them.

At the time of his indictment, Luedecke was in the custody of the

1 Luedecke’s motion and supporting memorandum also invoke the Sixth Amendment, but he presents no argument whatsoever in support of such a theory. In any event, any Sixth Amendment claim is largely moot, for reasons which will appear. See infra note 7 . 2 This matter was assigned docket n o . 05-cr-130-JD. state of New Hampshire, awaiting trial on “unrelated charges

involving a vehicular assault on a New Hampshire State Trooper.”

O b j . Mot. Dismiss at 1 . The government filed a detainer with

Luedecke’s custodians for the purpose of alerting him to the

pending charge in this court. See

(j)(1)(b).

On December 2 1 , 2004, Luedecke waived his right to appear at

his arraignment and entered a plea of not guilty on the bank fraud charge. Trial was then scheduled to commence on February

2 2 , 2006. Following the government’s response to Luedecke’s

request for discovery on February 8 , 2006, the parties discussed

the terms of a possible plea bargain, but, according to Luedecke,

did not “come close to reaching an agreement.” Mem. Supp. Def.’s

Mot. Dismiss ¶ 1 1 . Luedecke’s counsel informed the court on

February 2 1 , 2006, that trial would proceed the next day as

scheduled. Later that day, however, the government moved to

dismiss the indictment without prejudice pursuant to Rule 48(a)

of the Federal Rules of Criminal Procedure. In its motion, the government explained that it intended “to offer the grand jury a

superseding indictment that include[d] additional schemes to

defraud,” and had not done so earlier “because it believed the

parties, who were negotiating a plea, would resolve the issues in

dispute.” Gov’t Mot. Dismiss at 1 . The court granted the motion

that day, without any objection from Luedecke.

The government did in fact procure an indictment charging

Luedecke with further crimes, which was returned on May 2 4 , 2006.

2 In addition to the charge contained in the first indictment,

which serves as Count I of the present indictment, Luedecke is

charged with two additional counts of bank fraud, also in

violation of

. Count II alleges that, between

late June 2005 and August 2005, Luedecke induced one David

Buckley, who had his own Citizens account, “to issue checks from

the account to purchase merchandise from retail businesses knowing there were insufficient funds in the account.” Indict.

¶ 1 0 . According to the indictment, Luedecke and Buckley would

then sell the merchandise to third parties and split the profits

between themselves. Count III alleges that, between August 2004

and September 2004, Luedecke participated in a nearly identical

scheme with one Michael Nudd, using that man’s account at the New

Hampshire Federal Credit Union.

By the time when the second indictment was returned,

Luedecke was in the custody of the New Hampshire State Prison, so

the government secured his appearance at his arraignment through a writ of habeas corpus ad prosequendum. At the arraignment,

held May 3 0 , 2006, Luedecke entered a plea of not guilty and

stipulated to his detention pending trial, which was set to

commence on July 1 8 , 2006. On June 2 8 , 2006, Luedecke filed the

instant motion to dismiss the indictment. The court then

continued the trial until August 1 , 2006, pending a ruling on the

motion. See

(h)(1)(F).

3 Discussion

I. Whether a Violation of the Speedy Trial Act Occurred

Under the Speedy Trial Act, in relevant part, the trial of a

defendant charged in an indictment must commence within seventy

days of the filing of the indictment, or the defendant’s first

appearance in the court where the charge is pending, whichever

occurs later.

(c)(1). When an indictment is dismissed upon motion of the defendant, and the government then

re-indicts for “the same offense or an offense based on the same

conduct or arising from the same criminal episode,” the seventy-

day period starts anew.

§ 3161(d)(1). “When the government

voluntarily dismisses charges, however, . . . the Speedy Trial

Act . . . excludes only the time between indictments, and not the

time during the pendency of the first indictment.” United States

v . Colombo,

9 , 23 (1st Cir. 1988) (citing

(h)(6)); see also, e.g., United States v . Lozano,

(8th Cir. 2005); United States v . Osteen,

2 1 , 525-26 (4th Cir. 2001); United States v . Broadwater,

(11th Cir. 1998).

Luedecke asserts that, by operation of this rule, the

seventy-day period on the charges set out in the present

indictment began running on December 2 1 , 2005, when he waived his

formal arraignment on the charge set out in the first indictment.

Because only the span between the dismissal of that charge and

his arraignment on the present charges is excludable, he argues,

4 “well over 70 days has elapsed and the government has not brought

[him] to trial.” Mem. Supp. Def.’s Mot. Dismiss ¶ 2 6 . The

government does not dispute that December 2 1 , 2005, serves as the

commencement date for the seventy-day period, but argues that the

entire period of time during the pendency of the first indictment

is otherwise excludable by virtue of

(h)(1)(D).3

When a defendant moves to dismiss an indictment under the

Speedy Trial Act, he or she “shall have the burden of proof of

supporting such motion but the government shall have the burden

of going forward with the evidence in connection with any

exclusion of time under subparagraph 3161(h)(3).”4

(a)(2). Although this provision, by its terms, shifts the

burden to the government only in the case of this particular

subparagraph, some courts have held that the government simply

bears the burden of supporting an exclusion of time under any of

the statutory exclusions. See, e.g., United States v . Jenkins,

3 0 , 438 (6th Cir. 1996); United States v . Woolfolk,

, at *3 (W.D. V a . Aug. 3 1 , 2005); United States v . Martinez,

6 0 , 363 (D.N.J. 1999). Other courts

have simply stated, regardless of the government’s reliance on

exclusions other than section 3161(h)(3), that the defendant

3 The government does not invoke any of the Act’s other exclusions. See

(h)(1)-(h)(8). 4 This provision excludes period of delay resulting from the absence of the defendant or an essential witness.

5 retains the burden to show a violation of the Act. See, e.g.,

United States v . Cordova,

8 7 , 599 (8th Cir. 1998);

United States v . Neal,

(5th Cir. 1994); United

States v . Pasquale,

4 8 , 951 (10th Cir. 1994).

Neither party has addressed this issue, which has also not

been squarely decided by the First Circuit. In United States v .

Barnes,

(1st Cir. 1998), however, the circuit refused to “turn the Act on its head by shifting the burden of enforcing

the Act to the defendant,” rejecting the government’s argument

that the defendant’s failure to object to the court’s apparent

sua sponte continuance of her trial rendered the subsequent

period excludable.

(discussing United States v .

Pringle,

(1st Cir. 1984)). The court also

noted in this regard that “[t]he reasons for this delay ha[d] not

been made clear by the guardians of the speedy trial clock: the

court, and to a lesser extent, the government.”

at 1 4 .

Based on the circuit’s observations in Barnes, and given the government’s failure to address the issue, the court concludes

that the government bears the burden of showing that section

3161(h)(1)(D) applies.

Section 3161(h)(1)(D) excludes from the seventy-day period

“[a]ny period of delay resulting from other proceedings

concerning the defendant, including but not limited to . . .

delay resulting from trial with respect to other charges against

the defendant . . . .” The government argues that, because

6 Luedecke “was in the custody of the State of New Hampshire on

unrelated charges for the entire time up to the dismissal of the

[first] indictment,” section 3161(h)(1)(D) excludes that period

from the Speedy Trial Act computation. O b j . Mot. Dismiss at 6.

By its terms, however, section 3161(h)(1)(D) applies to “delay

resulting from trial with respect to other charges,” not “delay

resulting from incarceration with respect to other charges.” The government does not provide any authority supporting its

reading of section 3161(h)(1)(D). The sole case it cites, United

States v . Rush,

(1st Cir. 1984), does not support

its position. In Rush, the First Circuit simply noted the

defendants’ concession that “the time from the commencement of

[their unrelated] trial . . . through its conclusion . . . was

excludable” by virtue of section 3161(h)(1)(D).

.

Here, however, the government does not seek to exclude only that

part of Luedecke’s detention by New Hampshire authorities (if

any) that he actually spent at trial, but the detention in its entirety. Rush is therefore inapposite.

To be sure, other circuits have treated the period of a

defendant’s pre-trial custody on state charges as excludable

under the Speedy Trial Act. See United States v . Nesbitt,

(7th Cir. 1988), overruled on other grounds,

United States v . Durrive,

(7th Cir. 1990); United

States v . Bigler,

(5th Cir. 1987); United

States v . Lopez-Espindola,

0 7 , 110 (9th Cir. 1980);

7 United States v . Goodwin,

(8th Cir. 1980);

but see United States v . Oliver,

(2d Cir.

1975) (Lumbard, J., concurring) (reasoning that Second Circuit

“prompt disposition” rule similar to § 3161(h)(1) did “not extend

time in which the government must be ready to try a federal

defendant by that period of time during which state criminal

proceedings are pending against the defendant, unless the government has made reasonable efforts to ensure the presence of

the defendant”). But these courts have stopped short of adopting

any per se rule to that effect, as the Ninth Circuit’s decision

in Lopez-Espindola makes clear.5

In Lopez-Espindola, the court observed that “[a]nyone

familiar with trial practice is aware of the fact that ‘delay

resulting from trial’ not only involves the trial itself but also

the period of time utilized in making necessary preparation for

trial.”

. Rather than equating this period with

the period of the defendant’s pre-trial detention in all cases, however, the court simply held that “it is within the sound

discretion of the trial court judge to determine that period of

delay resulting from trial with respect to other charges and that

5 In a related context, courts have similarly declined to “hold that a pending state prosecution in any sense tolls the running of the Sixth Amendment period of delay.” United States v . Thomas,

4 4 , 151 (4th Cir. 1995); see also United States v . Schreane,

4 8 , 555 (6th Cir. 2003).

8 on the facts of this case the exclusion of the period [between

the defendant’s arrest and acquittal on the state charge] was not

improper.”

(emphasis added). The Seventh and Fifth Circuits

subsequently adopted Lopez-Espindola’s reading of section

3161(h)(1)(D). United States v . Montoya,

, 149 & n.8

(7th Cir. 1987); Bigler,

.

Thus, even those courts that have excluded the entire period of a defendant’s pre-trial detention by the state as “delay

resulting from trial on other charges” have not treated that time

as “automatically excludable” in the manner the government

suggests. O b j . Mot. Dismiss at 6. Instead, under the approach

set forth in Lopez-Espindola and its progeny, time spent in the

custody of state authorities awaiting trial on other charges is

excluded to the extent it has been “utilized in making necessary

preparation for trial.”

.

In many cases, of course, the two measurements will

completely overlap. See, e.g., Nesbitt,

(relying on Montoya “to exclude all time periods during which the

defendant was unavailable to the federal court because of his

involvement in state proceedings relating to his [state] murder

charge”); Goodwin,

(treating whole thirteen

days defendant spent in state custody “awaiting trial with

respect to armed robbery charges” as “other proceedings

concerning the defendant” under § 3161(h)(1)); United States v .

Allsup,

(9th Cir. 1978) (excluding “vast

9 majority of the delay between arraignment and trial [as] caused

by the pendency of [a] bank robbery prosecution in Oklahoma,”

including defendant’s “extensive psychiatric testing”). Here, in

contrast, there is no basis for equating the entirety of

Luedecke’s detention by state authorities with delay resulting

from trial on other charges. The government has said only that

Luedecke “was incarcerated by the State of New Hampshire on unrelated charges involving a vehicular assault on a New

Hampshire State Trooper [and] held by the State in pretrial

confinement at the Valley Street jail” during the pendency of the

first indictment. O b j . Mot. Dismiss at 6. The record is silent

as to what portion of this time was actually spent trying, or

preparing to try, those charges.

Accordingly, the government has failed to carry its burden

to show that the period of Luedecke’s pre-trial detention is

excludable under section 3161(h)(1)(D). The court recognizes

that reading this provision to include periods of the defendant’s state pre-trial detention outside of the actual trial serves in

part to relieve the government of the potentially onerous

responsibility “to monitor the state proceedings ‘and to keep the

district court informed of how expeditiously’ they were being

conducted.” Bigler,

(quoting Lopez-Espindola,

1 0 ) . But the government must nevertheless “exercise

a reasonable scrutiny over the progress of the state court

proceedings” after it procures an indictment against a defendant

10 who is already in state custody, Lopez-Espindola,

; it cannot simply ignore a defendant’s time in pre-trial

detention on state charges for purposes of his or her statutory

right to a speedy trial on pending federal charges.

As the First Circuit has cautioned, “neither counsel nor

district courts may employ measures for excluding time from the

speedy trial clock that impermissibly frustrate [the Act’s] purpose of protecting the shared interest of criminal defendants

and the public in bringing criminal charges to the bar of justice

as promptly as practicable.” United States v . Richardson,

7 , 29 (1st Cir. 2005) (internal quotation marks omitted);

see also Barnes,

(noting that government has duty

to watch Speedy Trial clock and explain reasons for delays);

United States v . Rodriguez,

(1st Cir. 1995)

(declining to adopt rule “treating as excludable time an extended

delay attributable solely to the government’s unexcused failure

to comply with a court-ordered briefing schedule” because “[t]he dangers of potential abuse lurking behind such a broad rule of

exclusion are plain”). Because the government has failed to

demonstrate that Luedecke’s stint in the custody of New Hampshire

authorities is excludable under section 3161(h)(1)(D), even under

the broad reading of the provision followed in some circuits, the

court need not decide whether to adopt that reading despite the

absence of any First Circuit guidance in this area. The court

concludes that Luedecke has not been brought to trial within

11 seventy days of his initial appearance on the charge set forth in

the first indictment in violation of

(c)(1).

II. The Appropriate Remedy for the Violation

A. Whether All of the Charges Should Be Dismissed

Luedecke argues that this transgression requires dismissal

of the instant indictment in its entirety. The government

rejoins that the seventy-day period on Counts II and III of the

indictment did not begin to run until his first appearance on

those charges, as opposed to the charge originally set forth in

the first indictment and repeated as Count I of the instant

indictment. In support of this position, the government relies

on United States v . Alford,

(5th Cir. 1998), where

the Fifth Circuit has held that “a new speedy-trial clock begins

for new offenses charged in the superseding indictment [that the

double jeopardy clause would not require the government to join

with the original charges,] when the indictment retains some of

the original charges.”6

; see also United States v .

Kelly,

5 , 48 (2d Cir. 1995); United States v . Lattany,

6 Although this case dealt with a superseding indictment, courts have generally treated a superseding indictment as equivalent to the filing of a second indictment following the dismissal of a related, earlier indictment when resolving Speedy Trial Act problems. See, e.g., United States v . Van Someren,

(8th Cir. 1997); United States v . McKay,

(11th Cir. 1994); United States v . Roman,

(2d Cir. 1987).

12

, 872 n.6 (3d Cir. 1992); United States v . Howard,

2 8 , 731-33 (E.D. V a . 1999).

Though the First Circuit does not appear to have addressed

this issue, the Fifth Circuit’s approach strikes the court as

sound. As that court reasoned in Alford, since “the government

may obtain a fresh speedy trial clock by simply waiting until

completion of the prosecution for the charges contained in the original indictment and beginning a new prosecution on the

additional charges,” bringing those additional charges through a

superseding indictment should have the same effect.

. Luedecke does not provide any authority to the contrary,

nor does he argue that the double jeopardy clause requires the

joinder of the sole offense charged in the original indictment

with the additional offenses charged in the instant one. Indeed,

since a separate violation of

occurs “[e]ach

time an identifiable sum of money is obtained by a specific

fraudulent transaction,” the double jeopardy clause would not require the joinder of Count I with Counts II and I I I , which

involve not only different transactions, but different accounts.

United States v . Brandon,

(1st Cir. 1994).

While the seventy-day period has elapsed on Count I by

virtue of its inclusion in the first indictment, the Speedy Trial

Act time has yet to run out on Counts II and III. The Act

13 therefore requires the dismissal of Count I , but not of Counts II or III. 7 See Howard,

.

B. Whether Count I Should Be Dismissed With Prejudice

The question remains, however, whether Count I should be

dismissed with or without prejudice. To answer this question,

the court must “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 Act] and

on the administration of justice.”

(a)(2). The

circuit has also endorsed the consideration of “extraneous

matters . . . rationally related to the balancing objectives of

the tripartite test” set forth in the statute, including “items

such as the length of the delay and the prejudice to the

defendant stemming from the violation (or, conversely, the

absence of prejudice).” United States v . Hastings,

2 0 ,

924 (1st Cir. 1988); see also Barnes,

8 . Luedecke

argues that each of the statutory factors favors dismissal with

prejudice here. The government takes the opposite view.

7 Although the Sixth Amendment could theoretically provide an independent basis for the dismissal of Counts II and I I I , Luedecke does not make any such argument. See note 1 , supra. In any event, it is clear that no Sixth Amendment violation has occurred. See United States v . Santiago-Becerril,

1 , 21-22 (1st Cir. 1997).

14 First, Luedecke suggests that the indictment charges

“essentially a property crime,” causing a loss of less than

$50,000.8 Mem. Supp. Def.’s Mot. Dismiss ¶ 2 8 . The government

disagrees. For purposes of considering whether to dismiss an

indictment with prejudice under section 3162(a)(2), the circuit

has treated bank fraud in violation of

as a

“serious offense,” noting that the statute provides for a maximum penalty of thirty years’ imprisonment. United States v . Scott,

0 , 57 (1st Cir. 2001). Indeed, in Scott, the circuit

considered the bank fraud charges “serious” even though the

restitution imposed as part of the defendant’s sentence on those

charges was only $35,550.

at 5 3 . In accordance with Scott,

then, the court finds the seriousness of the offense charged in

Count I to weigh against a dismissal with prejudice. This

determination, in fact, cuts heavily against such a remedy, given

the circuit’s admonition “that, when the charged crimes are

serious, only an equally serious delay can justify dismissal with prejudice.” Hastings,

.

The parties also disagree over how to weigh the “facts and

circumstances” which have necessitated the dismissal of Count I

under the Act.

(a)(2). “This aspect of the test

focuses on the culpability of the delay-producing conduct . . . .

8 Luedecke does not specify whether this figure serves as an estimate of the loss caused by the crimes charged in all three counts of the indictment, or just Count I .

15 sometimes the defendant may be to blame; other times, the

government.” Hastings,

. Though the parties are

in agreement that the Speedy Trial Act violation here occurred as

a result of the dismissal of the first indictment just before

trial,9 each side attributes the fault for this turn of events to

the other. Luedecke asserts that the government moved to dismiss

the first indictment on the eve of trial because it was not ready to go forward on that charge. For its part, the government

maintains that it moved to dismiss for the purpose of “seek[ing]

a superseding indictment that included charges addressing the

entire scope of [Luedecke’s] criminal conduct,” not because it

was unprepared for trial. O b j . Mot. Dismiss at 7-8.

In assessing the “facts and circumstances” prong of section

3162(a)(2), “delay which results either from intentional

noncompliance with the Act or from actions designed to gain

unfair prosecutorial advantage weighs heavily in favor of

dismissal with prejudice.” Hastings,

. While securing a dismissal on pretextual grounds to avoid having to go

to trial unprepared could qualify as an attempt to gain unfair

prosecutorial advantage, the court sees nothing in the materials

before it to suggest such chicanery here. In its motion to

9 The government does not argue that Luedecke’s pre-trial detention by the state caused any delay in bringing him to trial under the first indictment, simply that the period of the detention is excludable. See Part I , supra.

16 dismiss the first indictment, the government expressly stated

that it intended “to offer the grand jury a superseding

indictment that include[d] additional schemes to defraud other

than that alleged in the current indictment.” Gov’t Mot. Dismiss

at 1 . Significantly, Luedecke did not object to the motion or

otherwise dispute the government’s representation at the time.10

The government did, in fact, go on to procure such an indictment, which suggests that it was sincere in its stated intention.

In contrast, Luedecke has offered nothing to support his

theory that the government was not ready for trial, beyond the

last-minute timing of the motion to dismiss. The government

represented in the motion itself, however, that it had not sought

a superseding indictment earlier “because it believed the

parties, who were negotiating a plea, would resolve the issues in

dispute.” Gov’t Mot. Dismiss at 1 . While, again, Luedecke did

not dispute this characterization at the time, he now states that

“the parties never came close to reaching a plea agreement.” Mem. Supp. Def.’s Mot. Dismiss ¶ 3 9 . Though the government

disagrees, see O b j . Mot. Dismiss at 2-3 & n.4, the court will

simply accept Luedecke’s version at face value, rather than

delving into the substance of plea negotiations. C f . Fed. R.

10 The court acknowledges that it granted the motion within hours of its filing. Nevertheless, Luedecke apparently did nothing to inform the court that he intended to object to the motion, nor did he move for reconsideration of the order.

17 Crim. P. 11(c)(1). Without any other indication that the

government was unprepared for trial, Luedecke’s claim that the

negotiations did not progress as far as the government lets on

does not support his theory that the motion was filed to spare

the government from having to go to trial unprepared, rather than

the legitimate goal of seeking a superseding indictment.

That is not to say, however, that the government was blameless in waiting until the eve of trial to seek dismissal of

the indictment. Indeed, the court is somewhat troubled by the

government’s complaint that Luedecke “never told the government

that he was insisting on a trial. Rather, [defense] counsel

advised the court of that fact on the day before trial was to

begin and the government found out through the court.” O b j . Mot.

Dismiss at 7 . Like any other litigant, the government has an

obligation to be prepared to go to trial on the appointed date.

This obligation is not diminished by the fact that efforts to

resolve the case are still ongoing–-as opposed to successfully completed–-as the time of trial approaches. Given the absence of

a signed plea agreement, it might have been preferable for the

government to begin seeking a superseding indictment as its

primary option from the outset, rather than as a fallback in case

negotiations were not ultimately fruitful.

Even if the government could fairly be called careless in

this regard, however, that determination would hardly necessitate

18 a dismissal with prejudice. “Random negligence, while not to be

condoned, is less blameworthy than purposeful misconduct or

recurrent transgressions, and weighs less heavily in favor of

banning reprosecution.” Hastings,

; see also

United States v . Duranseau,

0 4 , 808 (8th Cir. 1994).

The “facts and circumstances” requiring the dismissal of Count I

in this case therefore do not cut strongly in favor of dismissal with prejudice.

The parties also disagree over the final prong of the

statutory inquiry, “the impact of a reprosecution on the

administration of [the Act] and on the administration of

justice.” Under this aspect of the test, the court must consider

the effects of the choice to allow or bar reprosecution on

“generalized public and private interests,” particularly “the

specific goal of assuring speedy trials.” Hastings,

.

Here, because any reprosecution on Count I would presumably occur following the resolution of Counts II and I I I , which now

have their own Speedy Trial clock, the reprosecution would

duplicate much of the effort expended by the parties and the

court in resolving the other charges. Proceeding in this fashion

would therefore disserve the public interest in preserving

judicial and government resources. Similarly, Luedecke would

face the unhappy prospect of enduring two separate trials on

19 charges that, but for the Speedy Trial Act violation, would have been tried together. Because “the orderly administration of justice necessarily is hindered to some degree whenever the Act is violated,” however, the First Circuit has suggested that worse is necessary to justify dismissal with prejudice under section 3162(a)(2). Barnes,

7 . In Barnes, the defendant was convicted after her trial proceeded despite her claim of a Speedy Trial Act violation.

. Though the circuit vacated the conviction on Speedy Trial Act grounds, it nevertheless refused to order dismissal with prejudice, reasoning that “a retrial should not take more than one week (the first trial lasted four days), and there is no reason to believe that reprosecution would otherwise have a deleterious effect on the fair and efficient administration of justice.”

at 1 7 . The same is true here: while allowing the reprosecution of Count I would result in some inefficiency and potential unfairness, the severity of these consequences does not meaningfully exceed the impacts of any Speedy Trial violation.

In addition, given that any wrongdoing by the government here was negligent at worst, dismissal with prejudice strikes the court as too draconian a sanction.11 Though, again, the

11 Luedecke suggests that justice would be better served by a state prosecution on fraud charges than by continued proceedings in this court. Luedecke, however, does not provide any support

20 government might have proceeded more cautiously, the court is

confident that the simple dismissal of Count I without prejudice

will effectively serve to deter such oversight in the future. As

the Supreme Court has observed, “[d]ismissal without prejudice is

not a toothless sanction”: it requires the government to seek

another indictment and causes other delays tending to “make

reprosecution, even if permitted, unlikely.” United States v . Taylor,

(1988). The impact of the

reprosecution of Count I on the administration of justice and the

administration of the Act, then, does not weigh in favor of

dismissal with prejudice. See Barnes, 159 f.3d at 17-18.

Finally, neither the length of the delay nor any prejudice

to Luedecke cuts in favor of dismissal with prejudice. Because

the Speedy Trial clock on Count I did not run during the period

between the dismissal of the first indictment and Luedecke’s

initial appearance on the present indictment,

(h)(6), the seventy-day period on that charge did not elapse until June 7 , 2006, by Luedecke’s own calculations. See Mem.

Supp. Def.’s Mot. Dismiss ¶ 2 5 . Given further that the filing of

Luedecke’s motion to dismiss stopped the clock again on June 2 8 ,

for the proposition that the possibility of a state prosecution arising out of the same conduct alleged in the federal indictment militates in favor of dismissal with prejudice; the theory has been rejected by another court in the First Circuit. United States v . Dimott,

, at *5 (D. M e . Feb. 1 3 , 2006), rep. & recomm. adopted,

(D. M e . Mar. 2 1 , 2006).

21 2006,

(h)(1)(F), and that the dismissal of Count

I upon that motion will restart the clock,

§ 3161(d)(1), the

delay totals only an additional twenty-one days of Speedy Trial

time. Delays of similar or greater duration have failed to

result in dismissals with prejudice under the Act. See, e.g.,

Barnes,

(“more than twice the extent statutorily

permissible”); United States v . Johnson,

4 0 , 946 (5th Cir. 1994) (118 days); United States v . Wright,

1 1 , 816

(D.C. Cir. 1993) (17 days).

In any event, Luedecke has not even hinted at any prejudice

he suffered from the Speedy Trial Act violation that occurred in

this case, and none is apparent to the court. “One reason, of

course, is that so brief a delay is unlikely to . . . materially

hamper a defendant.” Hastings,

. Indeed, because

Luedecke was detained by New Hampshire authorities during most of

the running of the Speedy Trial period on Count I , until he was

brought into federal custody following his arraignment on the present indictment, the delay has not prolonged his pre-trial

detention. C f . Howard,

. The First Circuit

has weighed the absence of prejudice to the defendant heavily

against dismissal with prejudice. Barnes,

8 ;

Hastings,

.

Having considered both the statutory criteria set forth in

(a)(2) and the additional criteria endorsed by

22 the First Circuit, the court concludes that dismissal of Count I

without prejudice is the appropriate remedy for the Speedy Trial

Act violation in this case.

Conclusion

For the foregoing reasons, Luedecke’s motion to dismiss

(document n o . 9 ) is GRANTED as to Count I of the indictment,

which shall be dismissed without prejudice. The motion is

otherwise DENIED.

SO ORDERED.

Joseph _ seph A. A. DiClerico, Jr. __ United States District Judge July 2 0 , 2006

cc: Timothy M . Harrington, Esquire Donald A . Feith, Esquire U.S. Probation U.S. Marshal

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