No abuse of discretion when dismissing counts without prejudice for Speedy Trial Act violations
U.S. v. Smith, 2013 WL 285548 (1/25/13) (Okl.) (Published) - The district court did not abuse its discretion when, under the Speedy Trial Act, it dismissed 4 counts of the indictment without prejudice, rather than with prejudice, where the defendant had been convicted of one count and the jury couldn't decide on the other 4 counts. The wire fraud and money laundering offenses dealing with the usual mortgage fraud were serious offenses. The government did not act in bad faith by intentionally delaying the retrial. The defendant didn't assert his rights until after the violation occurred. The delay caused no cognizable prejudice to the defendant. That the defendant couldn't testify at sentencing regarding the one count for fear of incriminating himself was the result of the dismissal without prejudice, not the delay. Another fraudulent real estate deal was relevant conduct that properly jacked up the offense level. The differences between the schemes did not overcome the commonalities. It was not error to calculate the loss by subtracting the foreclosure sales price from the outstanding balance on the loan.