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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 11-80205-CR-MARRA

UNITED STATES OF AMERICA,

Plaintiff,

vs.

MITCHELL J. STEIN,

Defendant.

/

ORDER DENYING MOTION TO DISMISS INDICTMENT

THIS CAUSE is before the Court upon Defendant's Omnibus Motion to Dismiss

Indictment Pursuant to Rule 48(b) [DE 150]. In view of the fast approaching trial date, the Court

has determined that it should resolve this motion immediately without waiting for a response

from the United States. The Court having reviewed the pertinent portions of the record and being

duly advised in the premises, it is hereby

ORDERED and ADJUDGED as follows:

First, this motion to dismiss is untimely. In fact, it is the second untimely motion to

dismiss filed by or on behalf of Defendant. See DE 52 and DE 61. Second, some of the matters

upon which Defendant relies for dismissal, by his own admission, were know to him long before

any of his previous timely motions to dismiss were filed and cannot now, at the eleventh hour, be

raised as a basis for dismissal. See Defendant’s Motion at 8 (In the beginning of 2010, Adam

Eisner stated in Defendant’s presence . . . ; During Defendant’s arrest, the U. S. Postal

Inspector stated . . .).

Third, Defendant cannot assert that the government has engaged in conduct that shocks

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the conscience relative to Mr. Martin Carter when, to the Court’s knowledge, Mr. Carter has not

made the same assertion. To the extent Defendant believes that any testimony presented during

the trial from Mr. Carter is the product of “torture,” he will have an opportunity to demonstrate

that to be the case during his cross-examination. The jury will then be able to weigh the

credibility of that testimony. Fourth, Defendant has presented no evidence or argument as to why

alleged unconstitutional actions taken by the State of California against him can be attributed to

the United States in this case.

Fifth, to the extent there has been a violation of a discovery order resulting in prejudice to

Defendant, the Court can fashion a remedy short of dismissal. Lastly, Defendant has not pointed

to any exculpatory Brady material that has not been produced which would provide a basis for 

the drastic sanction of dismissal of the indictment.

In view of the foregoing, the Motion is DENIED.

DONE and ORDERED in West Palm Beach, Florida, this 25 day of April, 2013.th

 

KENNETH A. MARRA

UNITED STATES DISTRICT JUDGE

Copies provided to:

All counsel

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