Opinion
8:21-CR-85
2022-03-18
The UNITED STATES of America, v. Kaleb PECORARO, Defendant.
DUSTIN C. SEGOVIA, ESQ., Ass't United States Attorney, HON. CARLA B. FREEDMAN, United States Attorney for The Northern District of New York, 445 Broadway, Room 218, Albany, New York 12207. THOMAS A. CAPEZZA, ESQ., CAPEZZA, HILL LLP, Attorneys for Defendant, 30 South Pearl Street Suite P-110, Albany, New York 12207. LORI A. CANTWELL, ESQ., LORI A. CANTWELL, Attorneys for Defendant, 334 Cornelia Street #288, Plattsburgh, New York 12901.
DUSTIN C. SEGOVIA, ESQ., Ass't United States Attorney, HON. CARLA B. FREEDMAN, United States Attorney for The Northern District of New York, 445 Broadway, Room 218, Albany, New York 12207.
THOMAS A. CAPEZZA, ESQ., CAPEZZA, HILL LLP, Attorneys for Defendant, 30 South Pearl Street Suite P-110, Albany, New York 12207.
LORI A. CANTWELL, ESQ., LORI A. CANTWELL, Attorneys for Defendant, 334 Cornelia Street #288, Plattsburgh, New York 12901.
MEMORANDUM-DECISION and ORDER
DAVID N. HURD, United States District Judge
I. INTRODUCTION
On March 17, 2021, a Grand Jury in the Northern District of New York returned a one-count indictment that charged defendant Kaleb Pecoraro ("Pecoraro" or "defendant") with receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A).
On December 22, 2021, Pecoraro moved to dismiss the indictment with prejudice based on an alleged violation of the Speedy Trial Act. The motion has been fully briefed and will be considered on the basis of the parties’ submissions without oral argument. II. BACKGROUND
This Court outlined the specifics of defendant's arrest in its October 21, 2021 Memorandum Decision and Order denying defendant's suppression motion, see generally Dkt. 40, and thus provides a more concise overview here.
A. Pecoraro and his Arrest
In April 2020, the National Center for Missing and Exploited Children received a message from Interpol pointing it to photographs that had been uploaded on IMGSRC.RU, a Russian file sharing website, between August 2019 and March 2020. Dkt 30-1, ¶ 4. The uploaded material involved non-pornographic pictures of children playing in their front yard, including some in which they were bent over. Id. Using context clues, investigators found the house depicted in the photographs, which was home to four children. Id. ¶¶ 5-6.
Pecoraro was eighteen years old in the spring of 2020 and lived across the street from the subjects of the photographs. Dkt 30-1, ¶¶ 9, 11. According to Dr. Lindsey L. Wilner ("Dr. Wilner"), defendant's retained psychologist, he has autism spectrum disorder ("ASD") with deficits in social communication but without intellectual impairment, as well as Posttraumatic Stress Disorder ("PTSD") with dissociative symptoms. Dkt. 34-1, p. 40-41. Dr. Wilner further opines that defendant's capacity to understand what someone is saying to him "is that of approximately a [five]-year-old" and that his written expression is within a ten-to-eleven-year-old range. Id. at 29.
Pagination corresponds with CM/ECF.
Several clues pointed in Pecoraro's direction, so on June 5, 2020, investigators from the New York State Police went to his home to speak with him. Id. ¶¶ 1, 10; Dkt. 34-2, ¶ 36. After a discussion with defendant and his mother, in which defendant admitted to uploading the photos of his neighbors to IMGSRC.RU, investigators asked to see his electronic devices and obtained consent to do so. Dkt 30-1, ¶ 16; Dkt. 34-2, ¶ 41. After examining Pecoraro's devices, investigators discovered child pornography on his laptop and desktop. Dkt 30-1, ¶ 19. With this evidence, investigators obtained a search warrant, which they executed the same day. Id. ¶¶ 24, 26.
While they found no additional devices containing child pornography, investigators also sought to question Pecoraro further. Dkt 30-1, ¶ 26. After waiting for defendant, who was in distress, to calm down, investigators took him to the police station and interviewed him. Id. ¶ 27. At the police station, defendant again exhibited signs of distress, though investigators eventually calmed him down and read him his Miranda rights. See generally Dkt. 30-4.
During the approximately two-hour interview, Pecoraro asked investigators if he needed a lawyer; an investigator responded that it was not his place to say, but that it was defendant's right to have a lawyer and he could have one if he wanted one. Dkt. 30-4 at 7:00:47-59 p.m. Defendant responded that he did not know if he would need a lawyer, and that while he was aware that he had a right to an attorney, he was unsure if he would want one without knowing what questions the investigators would ask. Id. at 7:01:00-15 p.m.
An investigator responded that if he and his partner asked a question that Pecoraro did not want to answer, he did not have to answer it. Dkt. 30-4 at 7:01:15-21 p.m. But defendant was still concerned that if he asked for a lawyer he would seem to be untruthful, and said he would not feel comfortable talking to a lawyer in any case. Id. at 7:01:21-36 p.m. In fact, he claimed he was only comfortable speaking to the investigators because he already knew them. Id.
During the interview, the investigators asked Pecoraro about the photos he took and the files he downloaded from IMGSRC.RU, though defendant only added a few extra pieces of information. See generally Dkt. 30-4. The first piece was that defendant insisted he had had a moral epiphany that child pornography is wrong and deleted the material from his computer before getting caught. Id. at 7:27:20-28 p.m. The second was defendant's claimed motive for downloading the pornography: namely that he said he wanted to look at pornography involving people roughly his age. Id. at 7:40:57-59. Third, and notwithstanding the first two points, defendant admitted that he had downloaded and watched a video of an adult man having intercourse with an eight-year-old girl. Id. at 7:42:23-44:42 p.m.
The night of June 5, 2020, after the interview, the investigators arrested Pecoraro, Dkt. 30-4 at 8:20:48-55 p.m., though they released him to his mother that same night. Dkt. 34-2, ¶ 61.
B. Procedural History
On March 17, 2021, nine-and-a-half months after his June 5, 2020 interview and arrest, Pecoraro was indicted by a Grand Jury with one count of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A).
On March 19, 2021, the Honorable Gary L. Favro, United States Magistrate Judge, conducted an initial appearance. 3/19/21 ECF Text Minute Entry. Judge Favro took judicial notice that defendant was experiencing tics during the proceeding and released him to home detention in the custody of his mother. Id.
Judge Favro then held an arraignment on March 25, 2021, at which defense counsel raised an objection as to defendant's "competency to move forward with the arraignment." 3/25/21 ECF Text Minute Entry. The Magistrate Judge noted this objection but permitted defendant to enter a plea of not guilty. Id.
Judge Favro ordered defendant to be confined to home detention with an electronic monitor, along with other pre-trial conditions. Id. The same day as the arraignment, the Magistrate Judge entered a pretrial scheduling order setting a trial date of May 24, 2021 before the Honorable Norman A. Mordue, Senior United States District Judge, who was then assigned to hear the case. Dkt. 7.
On April 13, 2021, defense counsel suggested a continuance to give the government additional time to provide discovery. Dkt. 47-1. The government proposed a 60-day stipulation "to give [defendant] plenty of time to prepare motions," but noted that it "should be able to get [defendant] discovery next week." Id. The Court granted the request, excluding the period between April 13, 2021, and June 11, 2021, and set trial for July 23, 2021. Dkt. 14.
Ultimately, the government did not provide discovery the following week, it provided discovery on April 26, 2021. Dkt. 47-2.
On June 16, 2021, Pecoraro moved for, and the government agreed to, a 30-day continuance, which defendant had "requested ... to finalize answers to discovery questions and document review and fully brief pre-trial motions." Dkt. 17 at 1. Judge Mordue granted the request, excluding the period between June 17, 2021, and July 16, 2021, and setting trial for August 16, 2021. Dkt. 18.
On July 22, 2021, Pecoraro filed a motion to suppress. See Dkt. 23. On August 12, 2021, the original Assistant United States Attorney ("AUSA-1") assigned to the case filed the government's response. See Dkt. 30. AUSA-1 has since left the district. As a replacement, another AUSA ("AUSA-3") entered an appearance on September 13, 2021, see Dkt. 35, and sought leave to file a sur-reply to respond to the additional submissions defendant made with his reply, see Dkt. 36. Judge Mordue granted the request, Dkt. 37, and the government submitted its sur-reply a week later, Dkt. 38. The following day, this case was reassigned from Judge Mordue to this Court. Dkt. 39. One month later, the Court denied defendant's motion to suppress. Dkt. 40.
The second AUSA to appear ("AUSA-2") seems to have focused only on the forfeiture aspect of the case. See Dkt. 12.
On October 29, 2021, after the Court denied Pecoraro's motion to suppress, another AUSA ("AUSA-4") entered an appearance to replace the original AUSA who had left the office. Dkt. 41. Then, on November 22, 2021, the AUSA who is currently assigned to the case ("AUSA-5") entered an appearance. Dkt. 43.
The next day, AUSA-5 emailed defense counsel noting that he "dipped into the case a little but will delve into it more so [the parties] can see about a possible resolution" and provided a proposed stipulation for a 60-day exclusion under the Speedy Trial Act. Dkt. 46-1 at 3. Defense counsel responded thanking government for the stipulation, stating that he would review it, and requesting that AUSA-5 review the pretrial motion to see if there was a possible resolution to the case, given its "unique circumstances." Id. at 2.
On December 8, 2021, the government re-sent its proposed stipulation to defense counsel and the parties met the same day to discuss the case. See Dkt. 44-1 at 7-8; Dkt. 46 at 9. Following the meeting, defense counsel informed the government that it would contact Pecoraro's mother for an answer regarding the stipulation. Dkt. 46-1 at 1.
On December 14, 2021, after a discussion with Pecoraro's mother, defense counsel determined that another Speedy Trial stipulation would not be possible and sent a letter to the government to this effect. See Dkt. 44-1 at 8; Dkt. 44-5 at 81. In the letter, defense counsel listed its reasons for rejecting another stipulation, which primarily centered on the merits of the case, defendant's emotional disabilities, and defendant's declining emotional, mental, and physical condition stemming from his fear that the police would come to arrest him again. See Dkt. 44-5 at 81-84. The letter also noted that 80 unexcluded days had lapsed under the Speedy Trial Act and asserted that the government should dismiss the case with prejudice. See id. at 81-86.
The following day, the parties spoke, and the government informed defense counsel that it believed plea negotiations to be at an end given the defense's position that any dismissal should be with prejudice. Dkt. 46 at 10. The government further advised defense counsel that it believed the next steps would be to either proceed to trial or litigate a motion to dismiss. Id. Although the parties considered meeting before the defense filed a motion to dismiss, they ultimately did not do so, and defendant filed the instant motion on December 22, 2021.
Defense counsel calculates that, at the time it filed its motion, a total of 89 non-excluded days had lapsed. Dkt. 44-1 at 9-10. The government concedes that more than 70 non-excluded days have lapsed without the initiation of a trial and that dismissal of this case is therefore mandatory under the Speedy Trial Act. Dkt. 46 at 11.
III. DISCUSSION
While Pecoraro purports to make the instant motion pursuant to both his Sixth Amendment right to a speedy trial and his rights afforded by the Speedy Trial Act, he only focuses on the latter analysis. The Court will do the same here.
"The Speedy Trial Act requires that an indicted defendant be brought to trial within 70 days after the filing of the indictment or the defendant's appearance, whichever is later." United States v. Giambrone , 920 F.2d 176, 176 (2d Cir. 1990) (citing 18 U.S.C. § 3161(c)(1) ). As noted, the parties do not dispute that more than 70 non-excluded days have lapsed, and that dismissal of this case is therefore mandatory under the Speedy Trial Act. See 18 U.S.C. § 3162(a)(2). Rather, the question is whether such dismissal should be with or without prejudice. Unsurprisingly, Pecoraro seeks a dismissal with prejudice, and the government requests dismissal without prejudice.
The statute does not establish a preference between dismissal with or without prejudice, and in deciding between the two, the Court considers: (1) the seriousness of the offense; (2) the facts and circumstances of the case which led to the dismissal; (3) the impact of a re-prosecution on the administration of the Speedy Trial Act and on the administration of justice; and (4) the presence or absence of prejudice to defendant. United States v. Peppin , 365 F. Supp. 2d 261, 263–64 (N.D.N.Y. 2005) (citing § 3162(a)(1) ); see also United States v. Taylor , 487 U.S. 326, 336, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988) (noting that district courts must carefully consider each factor and clearly articulate their effect).
A. Seriousness of the Offense
Pecoraro is charged with receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2)(A). The statute's penalty provision includes a mandatory minimum five-year prison sentence and carries a maximum prison term of 20 years. 18 U.S.C. § 2252(b)(1). The severe penalties Congress has imposed for child pornography offenses evidence their serious nature, and this factor weighs in favor of dismissal without prejudice.
Though the offense charged in this case is of course serious, it must be noted that defendant's alleged conduct is to a certain degree less severe than the Court is accustomed to seeing in child pornography cases. The government only brought a single count of receipt of child pornography against defendant. In other words, unlike in most child pornography cases, the government did not charge defendant with conspiracy, distribution, sale, transportation, or other associated crimes. This may explain the government's general lack of interest in prosecuting this case.
B. Facts and Circumstances Leading to Dismissal
As this Court has noted, the main considerations for this factor are the length of delay and the reasons for it. Peppin , 365 F. Supp. 2d at 264. "With respect to the circumstances leading to the dismissal ... the court may properly take into account a demonstrably lackadaisical attitude on the part of the government attorney in charge of the case or a pattern of dilatory practices on the part of the United States Attorney's office in the district in question." Giambrone , 920 F.2d at 180. While the government conduct must be "more than an isolated unwitting violation," a Court can support its decision to dismiss with prejudice with a factually-supported finding of "a truly neglectful attitude, bad faith, a pattern of neglect, or other serious misconduct." Peppin , 365 F. Supp. 2d at 265 (internal quotations omitted) (citing United States v. Wells , 893 F.2d 535, 539 (2d Cir. 1990), and Taylor , 487 U.S. at 338-39, 108 S.Ct. 2413 ); see also United States v. Bert , 814 F.3d 70, 80-81 (2d Cir. 2016) ("A factually supported finding of a pattern of neglect, thus showing a ‘truly neglectful attitude,’ either on the part of the government or the court, may alone suffice to tip the ‘facts and circumstances’ factor in favor of dismissal with prejudice"). On the other hand, "[a]ny delay attributable to the defendant weighs against dismissal with prejudice." Peppin , 365 F. Supp. 2d at 265.
Pecoraro does not dispute that the length of delay in this case is narrow, but does contend that the government's conduct was willfully negligent. In support, defense counsel highlights three main concerns: (i) defendant's unique vulnerabilities; (ii) the number of AUSAs the government has staffed on this matter; and (iii) the government's failure to not only move the case forward, but also work cooperatively with defense counsel. The Court addresses each of these points, albeit out of order.
First, since indictment, the government has assigned a total of six AUSAs to this matter. While it is true that these AUSAs have had varying levels of involvement in the case, the fact remains that none of them paid much attention to it. Indeed, AUSA-1 appears to have been misinformed about simple facts of the case, such as whether the arraignment had taken place (despite having received the ECF notice of arraignment), as well as important dates, such as the discovery deadline outlined in the Court's original scheduling order. See Dkt. 47-1. Even after the parties executed a Speedy Trial stipulation (proposed by defense counsel so that the government would not miss the discovery deadline), AUSA-1 failed to provide defense counsel with discovery the following week, though she had claimed she would. See id. Ultimately, the government did not provide Pecoraro with discovery the week after, or even the week after that, but rather on Monday of the following week, four days after motions were due under the original scheduling order. See Dkt. 47-2.
In his opening memorandum of law, Dkt. 44-1, defendant counts five AUSAs, but on January 6, 2022, a sixth ("AUSA-6") appeared as substituted counsel for AUSA-2 for the forfeiture aspects of the case, Dkt. 45.
Notably, at various points AUSA-1 also demonstrated a lack of interest in working to reach an efficient resolution of this matter. For instance, AUSA-1 ignored a letter request, Dkt. 44-5, att. A, to have a pre-indictment pre-arrest discussion with defense counsel, and also later declined a request to discuss the equities of the case, id. at ¶ 11. With respect to the latter decision, AUSA-1 stated in an email that the only option she foresaw for defendant was a plea to the charge in the indictment. Id.
This theme continued even after AUSA-1 moved out of state. For instance, on October 29, 2021, AUSA-4, a supervisor who apparently had limited involvement with this matter, filed a notice of appearance. Dkt. 41. Like her predecessor, AUSA-4 declined an attempt by defense counsel to discuss the case, stating that she was not in a position to have such a discussion. Dkt. 44-5 at ¶ 13.
Finally, the government's conduct did not improve when AUSA-5, new to the office and the latest in a revolving door of prosecutors, took over near the end of November 2021. Dkt. 43. The day after entering his appearance, AUSA-5 emailed defense counsel, proposing another Speedy Trial stipulation and writing "I've dipped into the case a little but will delve into it more so we can see about a possible resolution, if you're amenable to that." Dkt. 46-1 at 3. Defense counsel responded, inquiring with AUSA-5 as to whether the government saw any other options beyond the sole charge in the indictment, which carried a 5-year mandatory minimum. Dkt. 44-5 at ¶ 14.
Despite claiming that he would look into a possible resolution of the matter after assessing it, and despite being just six days away from the Speedy Trial clock expiring (by the government's calculation), AUSA-5 did not respond to defense counsel's question, and the government did not make a plea offer in the gap between November 22, 2021, and December 8, 2021.
The government suggests that the delay in the 70-day Speedy Trial period is attributable, at least in part, to the defense. While it is true that defense counsel stated that he would review AUSA-5's proposed Speedy Trial stipulation, see Dkt. 46-1 at 2, the fact remains that AUSA-5 did not respond to his question concerning other resolutions. In addition, as defense counsel explained to the government, he needed to consult with defendant's mother before offering a position on another stipulation. Dkt. 44-5 at ¶ 16. If any delay stemming from this exchange is attributable to defendant, it is negligible and outweighed by the government's conduct.
Instead, on December 8, 2021, when the Speedy Trial clock had already expired several days earlier, the government simply re-sent its proposed Speedy Trial stipulation. Dkt. 44-5 at ¶ 15; Dkt. 46-2 at 3. Due to Pecoraro's condition and his deteriorating state, defense counsel declined to stipulate further, which it outlined in a letter to AUSA-5, copying the Chief of the Criminal Division. Dkt. 44-5 at ¶ 16. AUSA-5 called counsel to express that he took offense to the letter, and also stated that he would no longer engage in discussions related to reducing defendant's charge. Id. at 18. AUSA-5 further stated that defense counsel had but two choices: file a Speedy Trial motion or go to trial. Id.
This approach was particularly problematic given that the government should have been well aware of Pecoraro's unique vulnerabilities. Specifically: (i) the government had witnessed defendant's behavior and limitations in the interrogation room during his arrest on June 9, 2020; (ii) defendant's mother notified the government of her son's condition prior to his second arrest in March 2021; (iii) defendant was experiencing tics during his initial appearance on March 19, 2021, which the Court took judicial notice of; and (iv) the government was on written notice of Dr. Wilner's diagnoses of ASD and PTSD on March 18, 2021 (the date of arrest), July 22, 2021 (motions for omnibus relief), and December 22, 2021 (motion for speedy trial violation), diagnosing defendant with ASD, for nearly four months before the Speedy Trial window eventually expired.
Despite possessing this information, the government failed to adequately staff the case, replacing one attorney after another, and took an uncompromising approach to negotiations at nearly every turn. In sum, the government's conduct, coupled with its knowledge that Pecoraro was uniquely vulnerable, demonstrates a truly neglectful attitude, tipping this factor in favor of dismissal with prejudice. See Bert , 814 F.3d at 80-81.
C. Impact of Re-prosecution and Prejudice
"The administration of justice depends heavily upon the prompt processing of criminal proceedings ...." Peppin , 365 F. Supp. 2d at 266 (citing United States v. Hillegas , 578 F.2d 453, 456 (2d Cir. 1978) ). "The [Speedy Trial] Act is intended both to protect the defendant from undue delay in the resolution of his case and to benefit society by ensuring quick resolution of criminal trials." Id. (citing United States v. Mancuso , 302 F. Supp. 2d 23, 32 (E.D.N.Y. 2004) ). This factor requires a court to consider: (i) the duration of the delay in question; and (ii) any attitude or pattern of laxity by the government in complying with the act. Id. (citations omitted).
As noted supra § III.B, the parties do not dispute that the delay in this case was "narrow." However, the government's disregard for this case, done at the expense of a person with disabilities, demonstrated a truly neglectful attitude. In short, the government's lackadaisical approach outweighs the fact that there was only a brief delay, and this factor cuts in favor of a dismissal with prejudice.
"The other consideration under this factor is the impact on the administration of justice, or more particularly the impact of the delay on defendant. This is often considered a separate or fourth factor for consideration." Peppin , 365 F. Supp. 2d at 266. "Regardless, a court must consider the ‘unexpressed factor of prejudice to the defendant.’ " Id. (citing United States v. Upton , 921 F. Supp. 100, 105 (E.D.N.Y. 1995) ). "Prejudice typically involves the effect that delay has on a defendant's ability to mount a defense." Id. at 267 (citing Mancuso , 302 F. Supp. 2d at 32 ). "But inordinate delay may also prejudice a defendant by interfering with his ‘liberty, whether he is free on bail or not, and ... may disrupt his employment, drain his resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’ " Id.
Clearly, the delay in this case has had a negative effect on Pecoraro and caused him significant anxiety. Specifically, defendant notes that, due to his experiences with police stemming from this case and the circumstances of his pre-trial home detention, his mental condition and overall well-being have significantly declined, and continue to do so. To be sure, Dr. Wilner observed that there are:
[S]tark differences in how Kaleb was functioning in January [2021] versus September [2021]. His overall ability to function has significantly decreased and may impact his ability to fully communicate with others, engage in independent living tasks, and cope with emotions related to stressors. Dkt. 44-6 at 4-5.
Moreover, until this ordeal, the last time defendant engaged in stimming behaviors (i.e. rocking, hand flapping) was when he was a child. Id. at 4. Now, defendant engages in these behaviors almost daily, if not multiple times per day. Id.
Pecoraro's mother further confirms his decline, stating in November 2021 that he had been woken up by false positive alarms from his ankle monitor on "4 out of the last 7 nights," and that he "cannot go back to sleep because he is convinced that they will show up to arrest him." Dkt. 44-5 at 86. In addition, "[defendant] has migraines almost [every day], and has lost complete hope. Right now he is just going through the movements of staying alive, but really has no desire to do even that." Id. While Pecoraro's issues appear to have begun at the outset of his arrest in June of 2020, both Dr. Wilner and his mother's observations indicate that his condition continues to worsen.
Relatedly, Pecoraro argues that his declining state negatively impacts his ability to mount a defense at trial. Specifically, defendant asserts that his behaviors and triggers could disrupt his participation and facilitation of his own defense and will influence how a jury perceives or interprets him. While the government attempts to minimize these issues by noting that defendant has not raised any challenges regarding his competency to stand trial, a reduced ability to facilitate one's own defense due to an inexcusable delay and one's competency to stand trial are different considerations. As to competency, defendant states that he does understand the government's charges against him. However, the issue here is the government's delay exacerbating defendant's disability, which in turn impacts his ability to assist in his own defense.
In sum, the government's disregard for this case created anxiety in Pecoraro, an individual with disabilities, and his ability to assist in his own defense has suffered. Considering that the administration of the Speedy Trial Act and of justice would be undermined by re-prosecution, and that the delay had a prejudicial impact on defendant, this factor supports dismissal with prejudice. See Peppin , 365 F. Supp. 2d at 266 ("[A] violation of any of the [Speedy Trial] Act's time limits ... negatively impacts on the administration of the Act. A dismissal with prejudice will further the administration of justice by acting as a deterrent to other would-be offenders [and a] reaffirmance of Congress’ basic purpose in enacting the Speedy Trial Act") (citing United States v. Bilotta , 645 F. Supp. 369, 373 (E.D.N.Y. 1986) ).
IV. CONCLUSION
While the delay in this case was narrow, it was entirely due to the government's careless approach to prosecution. As a result of the serious, but limited, charge brought against him, Pecoraro has already been severely penalized both mentally and with nearly two years of home detention. As a result, the government and the public will suffer very little, if any, prejudice if the case ends now. These considerations, coupled with the effects of re-prosecution on this individual with disabilities, compel dismissal with prejudice of the sole count in the indictment. It is the only fair and just conclusion to this case.
Therefore, it is
ORDERED that
1. The sole count of the indictment is DISMISSED with prejudice;
2. The Court-ordered pretrial conditions are VACATED;
3. The Clerk is directed to enter judgment accordingly and close the file.
IT IS SO ORDERED.