United States District Court, D. Montana, Butte Division
L. Christensen, Chief District Judge
the Court is Defendant Joseph Brent Loftis'
("Loftis") eleventh-hour Motion to Dismiss (Doc.
168) arguing that the late disclosure of
"exculpatory" evidence on behalf of the Government
warrants dismissal of the charges relating to that
information with prejudice. For the following reasons, the
Court will deny Loftis' Motion to Dismiss.
contends that the charges related to his dealings with Adam
S. Gottbetter and Gottbetter & Partners, LLC, must be
dismissed with prejudice under Federal Rule of Criminal
Procedure 48(b). The Court cannot agree. Additionally, Loftis
makes the superfluous argument that if the Court were to
continue the trial to allow Loftis the time he deems
necessary to process the new information, there would be a
Speedy Trial Act violation necessitating dismissal of his
case. As was made clear to both parties at the final pretrial
conference held on March 12, 2018, this case is proceeding to
trial as scheduled beginning March 19, 2018, and there will
not be another continuance. Consequently, the Court will not
expend any more time addressing Loftis hypothetical legal
scenario and proceeds only to the extent necessary to explain
why dismissal with prejudice under Rule 48(b) is not
warranted in this case.
Rule of Criminal Procedure 48(b) provides, in relevant part,
that the Court "may dismiss an indictment, information,
or complaint if unnecessary delay occurs in . .. bringing a
defendant to trial." While this Court has discretion
under Rule 48 to dismiss the information, dismissal
"should be imposed only in extreme circumstances."
United States v. Huntley, 976 F.2d 1287, 1291 (9th
Cir. 1992) (quoting United States v. Sears, Roebuck &
Co., 877 F.2d 734, 737 (9th Cir. 1989)).
Ninth Circuit has directed that district courts may
"dismiss a count under Rule 48(b) only 'with
caution' and only after 'forewarning' prosecutors
of the consequences of their delay." United States
v. Talbot, 51 F.3d 183, 186-87 (9th Cir. 1995) (quoting
United States v. Simmons, 536 F.2d 827, 836 (9th
Cir. 1976)). "The caution requirement is satisfied where
the reason for dismissal is prosecutorial misconduct and
demonstrable prejudice or substantial threat
thereof.'" Id. at 187 (quoting United
States v. Hattrup, 763 F.2d 376, 378 (9th Cir. 1985)).
Dismissal under Rule 48(b) is only appropriate "where
there is delay that is purposeful or oppressive."
Sears, Roebuck & Co., 877 F.2d at 739 (internal
quotation marks and citations omitted).
these factors are do not weigh in favor of dismissal. First,
there has been no forewarning in this case. Second, there has
been no finding, or evidence to support a finding, of
prosecutorial misconduct. Third, while there is certainly a
threat of prejudice stemming from the late disclosure of this
evidence, this prejudice can be rectified by alternative
means. Lastly, the Court is convinced that the delay was not
purposeful or oppressive on the part of the
Government.Consequently, dismissal is not appropriate
in this case.
mentioned, the prejudice stemming from the disclosure in this
case can be rectified by alternative means. The Court here
notes that the United States has offered to stipulate to a
jury instruction which would set forth "the same facts
Loftis sought to uncover" in his Motion for Exculpatory
Evidence. (Doc. 173 at 8.) However, whether this is agreed to
is out of the hands of the Court. As Loftis primary complaint
is that he is at a disadvantage owing to the fact that his
expert, Jack Manning, cannot timely supplement his opinion to
account for the new information (Doc. 169 at 8-9), the Court
believes that some relief is necessary. Accordingly, the
Court will give Loftis an extension of time in which to
supplement Jack Manning's expert opinion in light of the
recently disclosed information.
ORDERED that Loftis' Motion to Dismiss (Doc. 168) is
FURTHER ORDERED that Loftis must file any supplemental expert
opinion of Jack Manning at least two days before he is to
testify at trial.
 In ordering the production of the
materials related to Adam S. Gottbetter and Gottbetter &
Partners, LLC, the Court did not indicate by any means that
the Government was guilty of misconduct by not previously
producing the requested information. (Doc. 157.) While the
Court indicated that L.R. CR 16.1 widened the scope of
information to be produced to include the Gottbetter
information requested by Loftis, this was by no means so
clear as to preclude argument on the subject. Accordingly,
the Government was well within its right to argue against the
disclosure. Further, the late hour at which this argument
occurred is not the fault of the Government, as it timely
responded to Loftis' Motion for Exculpatory ...