United States v. Parhizgar, 4:22-cr-403

CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
Docket Number4:22-cr-403
Decision Date30 November 2022


Before the Court is the motion of defendant Robert R. Parhizgar (defendant or “Parhizgar”) to dismiss with prejudice the indictment for a violation of the Speedy Trial Act, 18 U.S.C. § 3162(a)(2). (Doc. No. 15.) Plaintiff United States of America (the “government”) has filed a response. (Doc. No 16.) For the reasons that follow, defendant's motion is GRANTED IN PART, and the indictment is DISMISSED WITHOUT PREJUDICE.

I. Background

On July 14, 2022, an indictment issued charging Parhizgar with one count of wire fraud, in violation of 18 U.S.C. § 1343. (Doc. No. 1.) In particular, the indictment charged a fraudulent scheme whereby Parhizgar obtained a loan of more than $300,000 from a private individual and promised to repay the loan through the sale of property Parhizgar represented he owned. (Id. ¶¶ 57.) According to the indictment, Parhizgar did not own all of the property in question and the loan was never repaid. (Id. ¶ 8.) The indictment further provided that the fraudulent scheme was facilitated by means of a wire communication on January 24, 2019. (Id. ¶ 9.)

On the date the indictment issued, Parhizgar was living in Lubbock, Texas. (See Court Only Entry, 7/14/2022, providing Parhizgar's Texas address.) On July 20, 2022, a summons was issued advising Parhizgar of the indictment and setting an arraignment, to take place via video conferencing, on August 4, 2022 at 2:00 p.m. (Doc. No. 2.) Also on July 20, 2022, the Court appointed the Federal Public Defender's Office, in the Northern District of Ohio, to represent Parhizgar. (Order [non-document], 7/20/2022.) On August 3, 2022 and August 4, 2022, the United States Pretrial Services Office filed a Pretrial Services Report (Criminal History Only) and a Pretrial Services Report. (Doc. Nos. 4 and 5, respectively.)

On August 4, 2022, Parhirzgar was arraigned before the magistrate judge. All parties and the magistrate judge participated in the proceedings via video conference. Parhizgar was represented by Attorney Timothy C. Ivey from the Federal Public Defender's Office. Parhizgar entered a plea of not guilty to the charge contained in the indictment. (Minutes of Proceedings [non-document], 8/4/2022.) The government did not request pretrial detention, and Parhizgar was permitted to enter a $20,000 unsecured appearance bond. (Id.; Doc. No. 7 (Appearance Bond); see Doc. No. 8 (Order Setting Conditions of Release).) On two separate occasions, Parhizgar's bond was modified to permit additional travel between jurisdictions. (See Doc. No. 11 (adding travel between the Northern District of Texas and the Northern District of Ohio); Doc. No. 12 (order granting modification); Doc. No. 13 (adding travel between the Central District of California and the Northern District of Ohio).)

Due to an administrative oversight, the Court did not issue its trial order until November 10, 2022. (Doc. No. 14.) In this scheduling order, the Court set November 17, 2022 for the plea deadline and the final pretrial conference. The Court also set this matter for a jury trial to begin on The present motion to dismiss followed on November 16, 2022. In his motion, defendant observes that, as of the date of his motion, 104 days have passed since his arraignment and plea of “not guilty.” “Because the government has failed to try Mr. Parhizgar within 70 days, he moves to dismiss the case against him.” (Doc. No. 15, at 2[1].) Parhizgar further requests that the dismissal be with prejudice. (Id. at 3.)

The government concedes that the 70-day indictment-to-trial rule set forth in 18 U.S.C. § 3161 has been violated in this case and that dismissal of the indictment, therefore, is necessary. (Doc. No. 16, at 1-2.) It argues, however, that the relevant factors-including the seriousness of the offense, the facts and circumstances leading to the violation, and the impact of re-prosecution- favor a dismissal without prejudice. (Id.)

II. Law and Discussion

The Speedy Trial Act provides that, subject to certain periods of exclusion, the trial of a defendant who has pleaded not guilty to a charge in an information or indictment “shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date defendant has appeared before a judicial officer of the court in which such charge is pending, wherever date last occurs.” 18 U.S.C. § 3161(c)(1), (h). In the event that “a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2). Defendant carries the burden of proof as to the motion. Id.

[I]f a meritorious and timely motion to dismiss is filed, the district court must dismiss the charges, though it may choose whether to dismiss with or without prejudice.” Zedner v. United States, 547 U.S. 489, 499, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). In determining whether to dismiss with or without prejudice, “the 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 [the Speedy Trial Act] and on the administration of justice.” 18 U.S.C. § 3162(a)(2); see United States v. Taylor, 487 U.S. 326, 332, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988).

In Taylor, the Supreme Court discussed the importance of the analysis:

Where, as here, Congress has declared that a decision will be governed by consideration of particular factors, a district court must carefully consider those factors as applied to the particular case and, whatever its decision, clearly articulate their effect in order to permit meaningful appellate review. Only then can an appellate court ascertain whether a district court has ignored or slighted a factor that Congress has deemed pertinent to the choice of remedy, thereby failing to act within the limits prescribed by Congress.

Taylor, 487 U.S. at 336-37; see, e.g., United States v. Pierce, 17 F.3d 146, 148-49 (6th Cir. 1994) (affirming district court's dismissal of an indictment without prejudice, finding that the district court properly addressed the three factors); see also United States v. Myers, 666 F.3d 402, 406 (6th Cir. 2012) (“A trial court's with-prejudice or without-prejudice determination [under the Speedy Trial Act] receives deference.” (citing Taylor, 487 U.S. at 332)).

Parhizgar was arraigned via video conference on August 4, 2022, and the speedy trial clock began to run on that date. Between the date of the arraignment and the filing of the present motion, there were no excludable events that would have tolled the speedy trial clock. The seventieth day after Parhizgar's indictment was October 13, 2022 and, as of that date, a technical violation of the Speedy Trial Act had occurred. The Court finds that it must, therefore, dismiss the indictment.

Having determined that dismissal of the indictment is appropriate, the Court must now determine whether to dismiss the case with or without prejudice for violation of the Speedy Trial Act. As previously noted, the Court must balance the three factors set forth in the statute, and there is no presumption regarding whether dismissal should be with or without prejudice. United States v. Gross, 432 Fed.Appx. 490, 493 (6th Cir. 2011); see 18 U.S.C. § 3162(a)(2).

A. Seriousness of the Offense

In Pierce, the Sixth Circuit observed that the first factor does not require the Court to necessarily label an offense “serious” or “not serious”. Rather, “the seriousness of the offense” factor “simply demands that the gravity of the crime be carefully considered as a factor in deciding whether to dismiss without prejudice.” Pierce, 17 F.3d at 149. The fact that there may be crimes that are more or less serious than the charged offense is merely one piece of information that may be considered in the analysis. See id.

Here, Parhizgar is alleged to have used dishonesty and subterfuge in order to unlawfully obtain over $300,000.00 in loan proceeds from another.[2]And while Parhizgar notes that his was a non-violent crime, violence is the not only measure of seriousness. Nonviolent crimes involving dishonesty and intentional misrepresentations, such as the charged wire fraud offense, are regularly determined to be serious for speedy trial purposes. See United States v. Clark, 577 F.3d 273, 282 (5th Cir. 2009) (citing district court decision and collecting cases); see, e.g., Pierce, 17 F.3d at 148-49 (finding tax evasion serious); United States v. Solnin, 81 F.Supp.3d 193, 202 (E.D.N.Y. 2015) (finding mail fraud serious for purposes of the Speedy Trial Act); United States v. Huebner, No. 3:12-cr-443, 2013 WL 6199599, at *4 (N.D. Ohio Nov. 27, 2013) (finding charges of conspiracy and wire fraud serious); United States v. Wollschlager, 588 F.Supp. 1572, 1578-79 (N.D. Ill. 1984) (finding intentional filing of unauthorized withholding allowances to be “extremely serious” under § 3162(a)(2)), aff'd, 782 F.2d 1045 (7th Cir. 1985).

Additionally the Court observes that the charged offense is punishable by up to 20 years imprisonment, a $250,000 fine, and 3 years of supervised release. Such significant penalties underscore the seriousness with which Congress viewed such offenses and properly factors into the speedy trial analysis. See United States v. Howard, 218 F.3d 556, 561 (6th Cir. 2000) (considering penalty imposed by Congress as evidence of the seriousness...

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