United States District Court, D. Nebraska
F. ROSSITER, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on pro se defendant Gregory
Bartunek's (“Bartunek”) motion to dismiss his
criminal case and return property seized from him pursuant to
a search warrant (Filing No. 284). This is Bartunek's
third motion to dismiss and just one of more than two dozen
pretrial motions Bartunek has filed raising and in many cases
re-raising myriad issues related to due process,
preindictment delay, discovery, suppression, speedy trial,
the seizure of his property, equal protection,
“outrageous government conduct, ” ineffective
assistance of counsel, and other alleged constitutional
violations. The government asks the Court to deny
Bartunek's motion on the merits (Filing No. 289).
careful review, the Court concludes Bartunek's motion
comes too late and asks too much. Under Federal Rule of
Criminal Procedure 12(b)(3) and (c), Bartunek must raise
pretrial issues like those raised in his motion before the
pretrial-motion deadline set by the Court “if the basis
for the motion is then reasonably available and the motion
can be determined without a trial on the merits.”
“If a party does not meet the deadline for making a
Rule 12(b)(3) motion, the motion is untimely.” Fed. R.
Crim. P. 12(c)(3). The rule “applies not only to the
failure to make a pretrial motion, but also to the failure to
include a particular argument in the motion.”
United States v. Green, 691 F.3d 960, 965 (8th Cir.
2012) (quoting United States v. Spotted Elk, 548
F.3d 641, 656 (8th Cir. 2008)). The Court may, however,
consider an untimely issue “if the party shows good
cause.” Fed. R. Crim. P. 12(c)(3).
the original deadline to file pretrial motions was March 9,
2017. At Bartunek's request, the Court extended the
deadline three times, ultimately to April 28, 2017. To
further accommodate Bartunek's pro se status and the
circumstances of his detention, the Court considered several
issues raised in motions filed after the April 28 deadline
had passed. The magistrate judge in particular has worked
diligently throughout this case to ensure that Bartunek
received unprecedented access to discovery materials, the law
library, and other legal resources. The Court has also
thoroughly considered Bartunek's speedy-trial claims in
conjunction with his requests to extend time and continue
trial without excluding the time for the purposes of speedy
trial. See 18 U.S.C. § 3161(h).
latest motion, Bartunek contends “outrageous”
misconduct and egregious errors by the police, the city, the
state, the prosecutor, the public defender, his pretrial
custodians, the Court, and others have violated his statutory
and constitutional rights at every step of this case. Asking
“the Court to take Judicial Notice of the entire case,
” Bartunek effectively asks the Court to reconsider
every pretrial decision the Court has made that has not gone
Bartunek's way. That grand request-filed without
permission almost ten months after the final pretrial-motion
deadline expired and just two weeks before trial-is denied.
Not only does Bartunek raise issues that were
“reasonably available” to him long before the
pretrial-motion deadline, see, e.g.,
United States v. Fry, 792 F.3d 884, 888-89 (8th Cir.
2015), he also admits the Court has already considered and
rejected most of the arguments he now seeks to reassert on
the brink of trial.
the timing of an alleged speedy-trial violation can, in
appropriate circumstances, provide good cause, Bartunek has
not shown good cause for the Court to consider (or
reconsider) any of the issues he raises here. Bartunek's
speedy-trial claims are grounded in his longstanding
allegations of “outrageous” misconduct and
“illegal detention.” For example, Bartunek
contends that “by appealing the release order, the
government caused [Bartunek] to continually ask for
continuances” and caused him to represent himself with
very limited access to legal resources in detention. Bartunek
also repeats his claims that the government prejudicially
dragged its feet on discovery. Those claims are not new and
do not establish good cause for further review. See,
e.g., United States v. Casares-Cardenas, 14
F.3d 1283, 1286 (8th Cir. 1994) (“The district court
has discretion to refuse to consider untimely pretrial
motions where, as here, no good cause is offered for late
submission.”); NECrimR 12.3(a) (“[A]bsent good
cause shown [pretrial motions] must be filed within the
pretrial motion filing deadline.”).
some part of Bartunek's latest motion were timely or he
established good cause, his motion would fail on the merits.
As the government points out, Bartunek largely “raises
claims that have failed in the past” and supports them
with the same arguments the Court previously found
unpersuasive. Bartunek has not presented any compelling
reason for the Court to revisit-much less reverse-its rulings
with respect to alleged misconduct, discovery, suppression,
speedy trial, or any of the other issues Bartunek raises.
See, e.g., United States v. Laws,
819 F.3d 388, 396 (8th Cir. 2016) (explaining district courts
have discretion to decide whether to reconsider prior rulings
and reopen issues presented in a pretrial motion).
Court further finds no merit to Bartunek's brief
assertion that the indictment is insufficient. See
Fed. R. Crim. P. 7(c)(1) (“The indictment . . . must be
a plain, concise, and definite written statement of the
essential facts constituting the offense charged and must be
signed by an attorney for the government.”). “An
indictment is sufficient if it contains the elements of the
offense charged, lets the defendant know what he needs to do
to defend himself, and would allow him to plead a former
acquittal or conviction if he were charged with a similar
offense.” United States v. Whitlow, 815 F.3d
430, 433 (8th Cir. 2016). An indictment that tracks the
language of the charging statutes is usually sufficient.
See, e.g., United States v.
Tebeau, 713 F.3d 955, 962 (8th Cir. 2013). The
indictment in this case meets those standards, and
Bartunek's assertion that he “lacked the proper
definition of the crimes and the facts and circumstances to
determine what to base his defense upon, or what evidence he
needed to dispute the charges” is belied by the record.
on the foregoing, Bartunek's Motion to Dismiss With
Prejudice (Filing No. 284) is denied.
This discussion does not include
Bartunek's repeated challenges to his detention pending
trial, which was upheld on interlocutory appeal on May 24,
2017. To the extent Bartunek again directly ...