United States District Court, D. Massachusetts
OPINION AND ORDER
A. O'Toole, Jr. Senior United States District Judge.
defendant, Sean Trahan, is indicted for one count of
possession of child pornography and one count of knowing
access with intent to view child pornography, in violation of
18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). The charges
arise from an FBI investigation into users of a child
pornography website “Playpen” and the FBI's
use of a network investigative technique (“NIT”)
that relayed identifying information about a Playpen user to
the FBI when the user logged on to the site. The defendant
has moved to dismiss his indictment with prejudice,
contending that his right to a speedy trial was violated for
two separate reasons. First, he points out that more than
seventy non-excludable days elapsed between the hearing and
the decision on his dispositive motions in violation of the
Speedy Trial Act. Second, he argues that the elapse of three
years between his arrest and the filing of his present motion
to dismiss itself amounts to a violation of his Sixth
Amendment right to a speedy trial.
Speedy Trial Act
respect to the Speedy Trial Act, the parties agree that a
technical violation occurred because more than seventy
non-excludable days elapsed between the hearing and decision
on the defendant's Motion to Suppress and Motion to
Dismiss and that dismissal of the indictment is therefore
appropriate, see 18 U.S.C. § 3161(c)(1),
(h)(1)(H), but they disagree about whether the dismissal
should be with or without prejudice, id. §
determining whether to dismiss the indictment with or without
prejudice, this Court considers the seriousness of the
charged offenses, the facts and circumstances leading to the
delay, the impact of a reprosecution on the administration of
justice and the enforcement of the Speedy Trial Act, and
whether the delay resulted in actual prejudice to the
defendant. Id.; United States v. Barnes,
159 F.3d 4, 16 (1st Cir. 1998). Dismissal with prejudice is
“a last and rare resort.” United States v.
Dessesaure, 556 F.3d 83, 85 (1st Cir. 2009).
the balance of the factors weighs in favor of dismissal
the defendant is charged with serious offenses with serious
potential penalties. See, e.g., United States v.
Benoit, Criminal Action No. 12-30014-JLT, 2014 WL
793572, at *6 (D. Mass. Feb. 25, 2014).
the facts and circumstances of the delay do not cry out for
dismissal with prejudice. The subject delay is attributable
to the Court's consideration of the defendant's
motions. That may in some circumstances weigh in favor of
granting a dismissal with prejudice. See United States v.
Ramirez, 973 F.2d 36, 38-39 (1st Cir. 1992). However,
the passage of time was not the result of
“administrative oversight” or neglect.
Id. at 39. Rather, the defendant's motions
questioned the FBI's use of a novel investigative
technique implicating complex issues of law that were, and
continue to be, the subject of controversy and litigation
around the country. During the time between the hearing and
the decision, there were developments in the case law
regarding the government's use of the NIT warrant, and at
least including one case upon which the Court relied in its
decision was pending on appeal before the First Circuit.
See United States v. Anzalone, 923 F.3d 1 (1st Cir.
2019); United States v. Anzalone, 221 F.Supp.3d 189
(D. Mass. 2016); Anzalone, 208 F.Supp.3d 358 (D.
Mass. 2016). Indeed, the defendant himself had requested
extensions of the deadline for him to file his motions based
upon the “backdrop of developing case law around the
country surrounding the FBI's use of [the NIT] in this
and other cases, ” and “complexity of matters at
issue (and proliferation of court decisions about those
issues).” (Def.'s Assented-To Mot. for Extension
of Time in Which to File Mots. 1 (dkt. no. 59); Def.'s
Assented-To Mot. for Extension of Mot. Deadlines 1 (dkt. no.
the impact of likely reprosecution of the defendant is not a
reason for dismissal with prejudice. The case was already set
for trial, and reprosecution would not likely be lengthy
since substantive and procedural rulings affecting a trial
would not have to be revisited in any protracted way. There
is no indication that a reprosecution would “in some
other way have a harmful effect on ‘the fair and
efficient administration of justice.'” See
United States v. Scott, 270 F.3d 30, 58 (quoting
Barnes, 159 F.3d at 17).
the defendant has not shown that any delay resulting from
reprosecution would prejudice him. He has not been held in
custody during the pendency of the case, but rather has been
on pretrial release. His conditions of release, and his
anxiety about his prosecution, are not inconsequential, but
they are also not out of the ordinary. Cf. United States
v. Santiago-Becerril, 130 F.3d 11, 23 (1st Cir. 1997);
United States v. Henson, 945 F.2d 430, 438 (1st Cir.
1991). Further, it is significant that he has not pointed to
any ways in which his defense is impaired, such as the loss
of witnesses or other evidence, nor any ways in which the
government has gained any tactical advantage by reason of the
Constitutional Speedy Trial Right
defendant also contends that the “aggregate delay of
more than three years” between his arrest and the
filing of his present motion amounts to a violation of his
Sixth Amendment right to a speedy trial. (Def.'s Mot. to
Dismiss Indictment 12 (dkt. no. 100).) The Supreme Court has
identified four factors that courts should assess when
considering whether a defendant has been deprived of the
right to a speedy trial: the “[l]ength of delay, the
reason for the delay, the defendant's assertion of his
right, and prejudice to the defendant.” Barker v.
Wingo, 407 U.S. 514, 530 (1972).
respect to the first factor, a trial delay of one year or
more is generally deemed “presumptively
prejudicial” and triggers inquiry into the remaining
factors. Doggett v. United States, 505 U.S. 647, 652
n.1 (1992). Here, the three years that elapsed between arrest
and the defendant's motion “crossed the threshold
dividing ordinary from presumptively prejudicial delay”
and “trigger[s] further Sixth Amendment review.”
United States v. Souza, 749 F.3d 74, 82 (1st Cir.
2014) (quotations omitted); accord Doggett, 505 U.S.
at 652-53 & n.1. Nonetheless, other than arguing that the
time interval triggers examination of the remaining factors,
the defendant makes no argument as to how the passage of that
interval of time is in itself significant. As noted above, he
does not point to any specific way that he has been
disadvantaged by the length of the delay.
the reasons for the delay weigh against the defendant. The
period that has elapsed is primarily attributable to ordinary
pretrial procedures, the defendant's own pretrial
motions, and numerous requests for continuances made either
by the defendant himself or with his assent. (See,
e.g., Def.'s Assented-To Mot. to Continue Detention
Hr'g (dkt. no. 7) (counsel needed additional time prior
to detention hearing); Def.'s Assented-to Mot. to
Continue Status Conference (dkt. no. 25) (counsel
unavailable); Def.'s Assented-To Mot. to Continue Status
Conference (dkt. no. 38) (counsel unavailable); Def.'s
Mot. to Continue Status Conference (dkt. no. 44) (counsel
unavailable); Def.'s Assented-to Mot. to Continue Status
Conference (dkt. no. 53) (gov't counsel unavailable and
no objection raised by defendant); Def.'s Assented-To
Mot. to Continue Status Conference (dkt. no. 56) (counsel
unavailable); Def.'s Assented-To Mot. for Extension of
Time in Which to File Mots. (counsel requesting extension of
deadline to file motions to suppress, dismiss, and compel in
light of “backdrop of developing case law around the
country surrounding the FBI's use of [the NIT]”);
Def.'s Assented-To Mot. for Extension of Mot. Deadlines
(counsel requesting extension of time to file motions because
of weather, school vacation week, and the “complexity
of matters at issue (and proliferation of court decisions
about those issues)”); Def.'s Assented-To Mot. to
Continue Mot. Hr'g (dkt. no. 69) (counsel unavailable and
seeking to file supplemental memorandum to update Court about
developing case law about the NIT); Def.'s Mot. to Accept
Suppl. Mem. Instanter (dkt. no. 72) (requesting
court to accept late filing of supplemental memorandum in
support of his motion to suppress); Status Conf. Tr., July
12, 2018 (trial date scheduled for November 2018 with assent
of defendant) (dkt. no. 84); Def.'s Assented-To Mot. to
Continue Trial Date (dkt. no. 90) (requesting a continuation
of trial date from November 2018 to February 2019 to review
discovery and avoid imperiling eligibility for full
acceptance-of-responsibility credit in the event of plea);
Assented-To Mot. to Stay Pretrial Filing Deadlines (dkt. no.
98) (requesting stay of pretrial filing ...