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Case 9:11-cr-80205-KAM Document 152 Entered on FLSD Docket 04/25/2013 Page 1 of 2

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 Defendants Motion at 8 (In the beginning of 2010, Adam Eisner stated in Defendants presence . . . ; During Defendants arrest, the U. S. Postal Inspector stated . . .). Third, Defendant cannot assert that the government has engaged in conduct that shocks

Case 9:11-cr-80205-KAM Document 152 Entered on FLSD Docket 04/25/2013 Page 2 of 2

the conscience relative to Mr. Martin Carter when, to the Courts 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 25th day of April, 2013.

KENNETH A. MARRA UNITED STATES DISTRICT JUDGE Copies provided to: All counsel