The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge
MEMORANDUM OPINION AND ORDER
Defendant Michel Thyfault has filed a motion ("Motion") to dismiss the Second Superseding Indictment due to a purported violation of the Speedy Trial Act ("Act"). For the following reasons, the Court grants in part and denies in part Defendant's Motion and dismisses the Second Superseding Indictment without prejudice.
The Act provides, in part:
If the defendant is to be tried upon an indictment... dismissed by a trial court and reinstated following an appeal, the trial shall commence within seventy days from the date the action occasioning the trial becomes final, except that the court retrying the case may extend the period for trial not to exceed one hundred and eighty days from the date the action occasioning the trial becomes final if the unavailability of witnesses or other factors resulting from the passage of time shall make trial within seventy days impractical. The periods of delay enumerated in section 3161(h) are excluded in computing the time limitations specified in this section. The sanctions of section 3162 apply to this subsection.
18 U.S.C. § 3161(d)(2). Under 18 U.S.C. § 3162(a)(2), the indictment "shall" be dismissed if a defendant is not brought to trial within Section 3161's time limits. Id.
In determining whether to dismiss the case with or without prejudice, a 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.
On August 12, 2003, a grand jury returned an indictment against Defendant Thyfault and others, charging Defendant with one count of conspiring to commit mail and wire fraud in violation of 18 U.S.C. § 371 and four counts of committing mail fraud in violation of 18 U.S.C. § 1341. (R. 1, Indictment.) On November 4, 2004, a grand jury returned a superseding indictment against Defendant and others, again charging Defendant Thyfault with one count of conspiring to commit mail and wire fraud in violation of 18 U.S.C. § 371 and four counts of committing mail fraud in violation of 18 U.S.C. § 1341. (R. 117, Superseding Indictment.) At the conclusion of a six-week trial before Judge Moran, on September 15, 2005, a jury acquitted Defendant of the conspiracy charge and failed to reach a unanimous verdict on the four mail-fraud counts. (R. 220, 9/15/05 Minute Order.)
On February 27, 2007, Judge Moran dismissed without prejudice the four mail-fraud counts based on a violation of the Act. (R. 307, 2/27/07 Minute Order; R. 308, 2/27/07 Order.) A grand jury then returned a Second Superseding Indictment on March 13, 2007, charging Defendant Thyfault with four counts of mail fraud in violation of 18 U.S.C. § 1341 based on the same underlying conduct that the first superseding indictment had alleged. (R. 309, Second Superseding Indictment.) Judge Moran dismissed the Second Superseding Indictment on issue preclusion grounds on June 27, 2007. (R. 338, 6/27/07 Minute Order; R. 339, 6/27/07 Mem. Op. & Order; R. 340, 6/29/07 Minute Order.)
After the government appealed, on August 26, 2009, the Seventh Circuit reversed the judgment dismissing the mail-fraud counts. (R. 436, Opinion.) By that time, the district court judge assigned to this case unfortunately had passed away. The Seventh Circuit issued the mandate on September 17, 2009, but the Clerk's Office did not immediately assign a new judge to handle the case. (R. 437, Mandate.) According to the government, at some point between December 9, 2009, and January 7, 2010, it inquired into the status of the case with the District Court Clerk's Office and was told that the case would be reassigned to a new judge. (R. 458, Gov't's Resp. Br. at 5.) On January 7, 2010, one hundred twelve days after the Seventh Circuit had issued the mandate and forty-two days beyond the Act's seventy-day time constraint, the case was reassigned to this Court. (R. 443.) Defense counsel asked for a short delay of the initial appearance before this Court, and when the parties appeared for the January 21, 2010, status hearing, the parties brought to the Court's attention that there may have been a violation of the Act. Defendant subsequently filed his Motion.
Defendant Thyfault argues that the Court should dismiss with prejudice the Second Superseding Indictment because the trial was not held within seventy days of the Seventh Circuit's issuance of the mandate. The government does not object to dismissal of the Second Superseding Indictment, but it asks that the Court do so without prejudice. Because the government does not oppose dismissal, the ...