IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

UNITED STATES OF AMERICA, 

Case No. 2:11-CR-00212 

Plaintiff, 

JUDGE ALGENON L. MARBLEY 

v. 

BARRY L. YOUST. Magistrate Judge Elizabeth Deavers 

Defendant. 

OPINION AND ORDER 

This matter comes before the Court on Defendant's Motion to Dismiss Indictment. For 

the reasons set forth herein, Defendant's Motion is GRANTED IN PART. Defendant's 

indictment is DISMISSED without prejudice. 

LAW AND ANALYSIS 

Defendant moves to dismiss his indictment pursuant to 18 U.S.C. § 3161, the Speedy 

Trial Act, subsection (c) of which places a 70-day time limitation on the start of a trial following 

the entry of a "not guilty" plea. Subsection (i) of 18 U.S.C. § 3161 states that when a defendant 

withdraws a guilty plea, the defendant shall be deemed indicted with respect to all charges 

therein contained ... on the day the order permitting withdrawal ofthe plea becomes final." 

Here, Defendant initially entered a plea of guilty, which he later moved to withdraw. 

This Court granted the withdrawal on October 1, 2012. As oftoday's date more than 70 days 

have passed and Defendant's trial has not begun. Thus, Defendant correctly argues that the 

indictment must be dismissed. The United States concedes that "dismissal is required under the 

Speedy Trial Act," but requests the dismissal be without prejudice. United States' Response, 

Dkt. 36 at 1. 

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Courts consider three factors in determining whether a dismissal under the Speedy Trial 

Act should be with prejudice: ''the seriousness of the offense; the facts and circumstances of the 

case which led to dismissal; and the impact of a reprosecution on the administration of [Chapter 

208 ofthe Title 18 ofthe United States Code] and on the administration of justice." United 

States v. Taylor, 487 U.S. 326, 333 (1988). 

The Defendant was indicted under 18 U.S.C. § 2421, prohibiting transportation of an 

individual for purposes ofunlawful sexual activity, and 18 U.S.C. § 2422(b), prohibiting 

coercion and enticement of a minor. Defendant argues the seriousness of the defense favors a 

dismissal with prejudice because "the alleged activity did not involve an intent to commit the 

forms of sexual conduct typically seen in federal felony prosecutions" under those statutes. 

Defendant's Motion to Dismiss, Dkt. 34 at 3. The Court cannot subscribe to Defendant's 

appraisal ofhis alleged actions. The United States correctly describes a violation of 18 U.S.C. § 

2422(b) as a violent offense, which here involves a minor victim. The minimum sentence for 

such a violation is ten years imprisonment. If Defendant did indeed sexually coerce a minor, the 

particular sexual act he contemplated does not lessen the gravity of the offense. Thus, the 

seriousness of the allegation favors dismissal without prejudice. 

Significantly, Defendant does not allege that the delay has prejudiced his case in any 

way. The Court finds no injury to justice in allowing Defendant to be indicted again. 

Furthermore, in considering "the facts and circumstances of the case which led to dismissal" it 

should be noted that this Court granted Defendant's requests to continue hearing dates and 

briefing deadlines on multiple occasions. If the Defendant had concerns that delay would 

prejudice his case, he could have sped the process considerably by not seeking multiple 

extensions. 

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On balance, therefore, the factors overwhelmingly favor dismissing the indictment 

without prejudice. 

CONCLUSION 

For the foregoing reasons, Defendant's Motion is GRANTED IN PART. Defendant's 

indictment is DISMISSED WITHOUT PREJUDICE. 

IT IS SO ORDERED. 

s/ Algenon L. Marbley 

ALGENONL.MARBLEY 

UNITED STATES DISTRICT JUDGE 

DATED: January 30,2013 

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