United States v. Pumphrey, 2:11-cr-00937

Defendant William Clyde Pumphrey was charged in 2011 with production and possession of child pornography.
Arraignment occurred January 30, 2012, with appointed counsel from the Federal Public Defender.
February 2, 2012, counsel withdrew due to conflicts; new counsel appointed.
February 21, 2012, Defendant moved for competency evaluation; competency hearing occurred February 24, 2012.
On December 5, 2012, Magistrate Judge found Defendant competent and discussed excluding time under the Speedy Trial Act; no order was filed.
Defendant filed the current motion to dismiss on January 31, 2013, after the 70-day Speedy Trial Act period had expired.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal should be with or without prejudice	Government argues delay warrants non-prejudicial dismissal	Pumphrey seeks dismissal with prejudice due to ACT violation	Dismissal without prejudice
Does the seriousness of the offense weigh toward prejudice	Offense is serious (child pornography) supporting prejudice against dismissal	Seriousness affects propriety of prejudice in favor of non-prejudice	Weighs in favor of dismissal without prejudice
Did facts show government culpability in delay	Delay resulted from government actions to exclude time; not intentional.	No assertion of government misconduct; parties failed to agree on exclusion	Circumstances weigh in favor of dismissal without prejudice
Impact of reprosecution on administration of justice	Prosecution should be discouraged by prejudice concerns	No compelling prejudice; reprosecution not inherently prejudicial	Weighs in favor of dismissal without prejudice
Prejudice to defendant	Defendant faces possible long-term effects of delay	No specific appreciable prejudice shown; incarceration already lengthy	No appreciable prejudice shown; dismissal without prejudice

United States v. Abdush-Shakur, 465 F.3d 458 (10th Cir. 2006) (non-exhaustive factors for dismissal under §3162)
United States v. Williams, 511 F.3d 1044 (10th Cir. 2007) (non-exclusive factors: seriousness, culpability, reprosecution impact, prejudice)
United States v. Larson, 627 F.3d 1198 (10th Cir. 2010) (reaffirmed standard for dismissal without prejudice under §3162)
United States v. Cano-Silva, 402 F.3d 1031 (10th Cir. 2005) (delay not automatically causing prejudice; context matters)
United States v. Saltzman, 984 F.2d 1087 (10th Cir. 1993) (prejudice and seriousness factors; standard guidance on dismissal)
United States v. Rushin, 642 F.3d 1299 (10th Cir. 2011) (prejudice and dismissal considerations under §3162)
United States v. Toombs, 574 F.3d 1262 (10th Cir. 2009) (Speedy Trial Act considerations and remedies)
United States v. Taylor, 487 U.S. 326 (1988) (Supreme Court on flexibility of dismissal remedies under ACT)
United States v. Williams, 576 F.3d 1149 (10th Cir. 2009) (additional circuit discussion on prejudice and remedies)