Opinion and Order — United States v. Sonthikoummane (Dkt. 47, D. Vt.)

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An opinion and order by Hon. William K. Sessions III in United States of America v. Bounthavong Sonthikoummane, Case No. 2:24-cr-00058-wks-1, in the U.S. District Court for the District of Vermont, dated September 9, 2025 at Burlington. It states that the defendant faces charges of allegedly defrauding the government over pandemic-era loans, and separately firearms charges on docket 2:24-cr-00078. After months of inactivity, the defendant moved to dismiss the superseding indictment with prejudice for a Speedy Trial Act violation (ECF No. 38). The government concedes the violation but argues for dismissal without prejudice. The Court dismisses the fraud case without prejudice, granting the motion in part and denying it in part, so the government may refile if appropriate.

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2:24-cr-00058-wks   Document 47   Filed 09/09/25   Page 1 of 15



                    UNITED STATES DISTRICT COURT
                               FOR THE
                         DISTRICT OF VERMONT

UNITED STATES OF AMERICA          )
                                  )
          v.                      )      Case No. 2:24-cr-00058-wks-1
                                  )
BOUNTHAVONG SONTHIKOUMMANE,       )
     Defendant.                   )

                           OPINION AND ORDER

     Defendant Bounthavong Sonthikoummane faces multiple charges

in this case related to allegedly defrauding the government in

relation to loans obtained from the government during the COVID-

19 pandemic (hereinafter the “fraud case”). On a separate

docket, 2:24-cr-00078, Defendant has also been charged with

illegally possessing firearms (hereinafter the “gun case”). The

fraud case began shortly before the gun case.

     After several months of inactivity in the fraud case,

Defendant filed a motion seeking dismissal with prejudice of the

superseding indictment on account of a Speedy Trial Act (STA)

violation. The government concedes that an STA violation has

occurred and thus dismissal is warranted; however, the

government argues for dismissal without prejudice. For the

reasons set forth below, the Court dismisses the fraud case

against Defendant without prejudice.

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                                 Background

     On June 12, 2024, a federal grand jury in Vermont returned

a superseding indictment against the Defendant, charging him

with false statements, conspiracy, wire fraud, and money

laundering, related to events in 2020 and 2021. ECF No. 6. The

following day, June 13, 2024, law enforcement agents from

multiple agencies went to the Defendant’s home in White River

Junction to arrest him. In the course of that arrest, the

government discovered multiple firearms. The government

subsequently indicted Defendant on July 24, 2024, for illegal

possession of those firearms on a separate docket, 2:24-cr-

00078.

     The pretrial scheduling order in the fraud case set the

pretrial motions deadline to September 16, 2024 and excluded

time until then from STA computation. ECF No. 19. On June 20,

Defendant was released from custody pending trial. ECF No. 28.

Defendant’s previous counsel filed an Assented-To Motion to

Extend the Time for Filing Motions on September 11, 2024, which

was granted by the Court on September 12. ECF No. 35. That Order

extended the pretrial motions deadline to November 1, 2024, and

further excluded time until that date from STA computation. No

further motions were filed in the fraud case until the instant

Motion to Dismiss on July 15, 2025. In the intervening time, on



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December 5, 2024, Defendant substituted his previous counsel

with current counsel in both cases.

     On November 4, 2024, Chambers emailed previous counsel for

Defendant and the government’s counsel noting that the motion

filing deadline in the fraud case had passed and inquiring about

availability for a pretrial conference or change of plea

hearing. Government’s counsel replied, “I can be available, but

there are two separate cases, the defense has filed a motion to

suppress and to dismiss in one, and I think the parties believe

we can’t move forward on the second case without resolving the

motions on the other. From my point of view, the motion deadline

applied to both cases together. Maybe [defense counsel] has a

different view.” Previous defense counsel replied to that email,

“I agree that we cannot move froward [sic] on 24-CR-58 until the

motions filed in 24-CR-78 have been resolved.” No motion or

order extending the pretrial motions deadline was filed on the

docket in the fraud case afterwards, and the Court did not hold

a hearing or conference.

     In the gun case, 2:24-cr-00078, Defendant filed the same

Assented-To Motion to Extend the Time for Filing Motions on

September 11, 2024, which was granted the following day. On

October 28, Defendant filed a motion to suppress and a motion to

dismiss in the gun case. 2:24-cr-00078, ECF Nos. 12, 13. On

December 5, counsel was substituted, and new counsel filed a

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supplementary motion to suppress on February 14, 2025. Following

a suppression hearing, additional briefing, and an Opinion and

Order granting in part and denying in part the motion to

suppress, the government recently filed a Notice of Dismissal in

the gun case, ECF No. 34. That notice remains pending.

     On July 15, 2025, Defendant filed a Motion to Dismiss on

Speedy Trial With Prejudice. ECF No. 38. The government

responded on July 21, ECF No. 39, and Defendant replied on

August 4, ECF No. 40. The Court held a hearing on the motion on

August 11. ECF No. 43. The motion is now ripe.

                               Discussion

     The Speedy Trial Act, 18 U.S.C. §§ 3161–3174, establishes

timelines for federal criminal cases along with sanctions for

missing certain deadlines. 18 U.S.C. § 3161(c) requires the

trial of an individual such as Defendant who has been indicted

and pled not guilty to commence within seventy days of an

indictment or first appearance. Certain periods of time are

excluded from the calculation of that seventy-day period,

including delay resulting from pretrial motions. 18 U.S.C. §

3161(h). A period of time may also be excluded following a grant

of a continuance by the “judge on his own motion or at the

request of the defendant or his counsel or at the request of the

attorney for the Government, if the judge granted such

continuance on the basis of his findings that the ends of

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justice served by taking such action outweigh the best interest

of the public and the defendant in a speedy trial.” 18 U.S.C. §

3161(h)(7)(A). The Court made such findings and granted a

continuance in its September 12, 2024 Order. ECF No. 35. That

Order excluded the period of time until November 1, 2024 from

counting towards the STA “clock.” Id.

     If the STA clock exceeds seventy days, the Court is

required to dismiss the case if the defendant files a motion.

“If a defendant is not brought to trial within the time limit

required by section 3161(c) as extended by section 3161(h), the

information or indictment shall be dismissed on motion of the

defendant.” 18 U.S.C. § 3162(a)(2) (emphasis added). Defendant

submits that the seventy-day time period expired on January 10,

2025, so the Court must now dismiss the fraud case. ECF No. 38.

The government does not dispute that calculation, and it “agrees

that a violation of the Speedy Trial Act occurred in this

docket.” ECF No. 39 at 1. Therefore, the Court must dismiss the

fraud case. 1

     “While dismissal of the indictment is the mandatory

sanction for a violation of the Speedy Trial Act’s time limits,

the determination of whether to dismiss an indictment with or


1 Defendant also argues for dismissal under the Sixth Amendment.
ECF No. 38 at 11-12. The Court does not reach that argument in
this Opinion after finding that dismissal is required under the
STA.
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without prejudice is committed to the discretion of the district

court.” United States v. Pikus, 39 F.4th 39, 58 n.18 (2d Cir.

2022) (cleaned up). The statute requires that, “[i]n determining

whether to dismiss the case with or without prejudice, the court

shall consider, among others, each of the following factors: the

seriousness of the offense; the facts and circumstances of the

case which led to the dismissal; and the impact of a

reprosecution on the administration of this chapter and on the

administration of justice.” 18 U.S.C. § 3162(a)(2). “In addition

to these statutory factors, the Supreme Court has indicated that

prejudice to the defendant should also be considered.” United

States v. Bert, 814 F.3d 70, 79 (2d Cir. 2016) (citation

omitted); see United States v. Taylor, 487 U.S. 326, 334 (1988).

When “the charged crimes are serious, ‘the sanction of dismissal

with prejudice should ordinarily be imposed only for serious

delay[,]’ [a]lthough ‘the fact that the underlying offense is

serious may be outweighed by the other factors, and the length

of the delay may contribute to such a counterweight[.]’” United

States v. Pikus, 2025 WL 1214405, at *2 (2d Cir. Apr. 28, 2025)

(summary order) (quoting Bert, 814 F.3d at 79-80).

       The parties disagree on the disposition of these factors

to various degrees. The Court considers them in turn and finds

that dismissal without prejudice is appropriate in this case.

  I.    Seriousness of the Offense

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     Defendant has been charged with bank and wire fraud related

to COVID relief loans. Defendant acknowledges that other courts

in this circuit have found these alleged offenses to be

“serious.” ECF No. 38 at 5 (citing United States v. Teman, 2019

WL 7041646, at *7 (S.D.N.Y. Dec. 20, 2019)). But Defendant still

argues that, given the lack of aggravating circumstances and

Defendant’s criminal history, “on the spectrum of ‘seriousness’

this Superseding Indictment alleges an offense that falls on the

‘less serious’ side of the pole.” ECF No. 38 at 6. The

government meanwhile relies on Defendant’s acknowledgement on

seriousness and further argues that the circumstances of the

alleged fraud warrant a finding of seriousness. ECF No. 39 at 4.

Defendant did not provide precedent for a sliding scale of

seriousness, and many courts appear to treat seriousness as a

binary inquiry. See, e.g., United States v. Pikus, 2025 WL

1214405 (summary order); Bert, 814 F.3d 70; Taylor, 487 U.S.

326. For the present, it is enough that the Court agrees that

the charges are “serious” for the purpose of 18 U.S.C. §

3162(a)(2).

  II.    The Facts and Circumstances of the Case

     Defendant argues that “the government’s seeming disregard

for the STA clock in the fraud case, coupled with the lengthy

delay, weighs heavily in favor of dismissing this case with

prejudice.” ECF No. 38 at 6. The government concedes that it “is

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responsible for monitoring the Speedy Trial clock and failed to

do so in this instance,” but it maintains that “because the

attention of the parties to the gun docket is clear from the

history of Sonthikoummane’s paired cases, this factor should not

require dismissal with prejudice despite the technical length of

the Speedy Trial Act violation.” ECF No. 39 at 5.

     The Court agrees with Defendant that “[t]he Second Circuit

has been clear for forty years ‘that a criminal defendant has no

obligation to take affirmative steps to insure that he will be

tried in a timely manner.’” ECF No. 40 at 3 (citing United

States v. Tunnessen, 763 F.2d 74, 79 (2d Cir. 1985)). The Court

also agrees that the filing of motions in the gun case cannot

toll the STA clock in the fraud case. In United States v.

Hoslett, the Ninth Circuit considered a related scenario in

which the government dropped some firearm charges from one

indictment and refiled them in a separate case against the same

defendant. 998 F.2d 648 (9th Cir. 1993). The Hoslett court found

that “[a] rule that all motions filed in the original case are

deemed filed in the second case for Speedy Trial Act purposes

would make little sense. . . . After the new case is brought,

any pertinent motions will be filed in that action.” Id. at 659-

60. Similarly, in this case, the motions filed in late October

2024 in the gun case did not impact the clock in the fraud case.



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This violation of the STA results in the mandatory dismissal of

this case as discussed above.

     However, the November 2024 email exchange among the Court,

previous defense counsel, and previous government counsel

complicates the prejudice inquiry. The Court discussed the email

exchange at length with new counsel for both parties during the

August 11, 2025, hearing on this motion. Both parties agreed

that the exchange could not toll the STA clock in the absence of

an order on the docket reflecting that intent. Defendant’s

counsel argued that Defendant would not have and did not in fact

agree to any implied tolling, if that were even possible under

the statute. Defendant’s counsel argued further that any

ambiguity should be resolved in favor of the Defendant, given

the government’s responsibility for monitoring the STA clock.

Government’s counsel argued that the email exchange reflected a

mutual intent for the cases to be handled together with the STA

clocks running concurrently in both. Both parties appear to

agree that there is no evidence of an “evil motive” for the

delay, ECF No. 38 at 6 (citing Bert, 814 F.3d at 80), though the

absence of an evil motive is not dispositive.

      “This ‘facts and circumstances’ factor may tip in favor of

dismissal with prejudice in situations where the delay is

attributable to a ‘truly neglectful attitude.’” Bert, 814 F.3d

at 80 (quoting Taylor, 487 U.S. at 338). The Court must look not

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only at the conduct of the attorneys in this case but also the

Court itself, as “[d]istrict courts must hold themselves

accountable for ensuring their own compliance with the Speedy

Trial Act’s requirements.” Id.

     The Court finds that it shares responsibility with the

government for the STA violation. In this case, the Court

reached out to the parties to check on the status of the STA.

The Court then proceeded under the mistaken belief that the

filings in the gun case, along with the email exchange among

both parties’ counsel and the Court, had tolled the STA clock in

the fraud case. The government appears to have been operating on

the same mistaken assumption. The legally required action was

for the Court to grant a continuance in the fraud case on either

its own motion or on the motion of one of the parties. 18 U.S.C.

§ 3161(h)(7)(A). However, the Court does not believe that this

administrative oversight demonstrates a “truly neglectful

attitude.” The Court believes that, in November 2024, it would

have been able to make the requisite findings under § 3161(h)(7)

to determine that the ends of justice served by a continuance in

the fraud case outweighed the best interests of the public and

the Defendant in a speedy trial. Had such a continuance been

issued at that time to reflect the understanding that the fraud

case could not move forward until the motions in the gun case

were resolved, there would be no violation here. Therefore, the

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Court finds that the facts and circumstances leading to this

delay do not clearly favor dismissal with prejudice.

  III. Impact of Reprosecution on the Administration of the Act

       and on the Administration of Justice

     Defendant has argued that allowing the government to

reprosecute his case would not serve as a sufficient sanction

for the government’s negligence in this case. Defendant urges

that “[t]he government should not be rewarded with an

opportunity to refile the fraud indictment against Mr.

Sonthikoummane because it overlooked the fraud case in favor of

the gun case, causing a lengthy delay that was not in the

public’s interest.” ECF No. 38 at 9. The government counters

that “dismissal without prejudice does not fail to sanction the

government” because “the government will need to represent the

case to a new grand jury in order to seek a renewed indictment.”

ECF No. 39 at 6.

     “The Act’s demand that justice be swiftly administered

serves the public interest by, among other things, avoiding

extended pretrial delays, which may impair the deterrent effect

of punishment or risk the loss of important evidence.” Bert, 814

F.3d at 83 (cleaned up). The Court agrees that Defendant and the

public bear the burden of the delay here. However, these burdens

do not neatly fall in favor of dismissal with prejudice. Barker

v. Wingo, 407 U.S. 514, 519 (1972) (“In addition to the general

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concern that all accused persons be treated according to decent

and fair procedures, there is a societal interest in providing a

speedy trial which exists separate from, and at times in

opposition to, the interests of the accused.”). The public in

this case suffers from a waste of resources and from a potential

delay in justice. Defendant’s burdens are assumed for the moment

and discussed in more detail below.

     When considering the “impact of reprosecution” factor, The

Second Circuit has instructed that “district courts should

identify and explain the administrative neglect that caused the

particular delay at issue, as well as consider any potential

administrative changes that might be warranted in light of that

violation.” Bert, 814 F.3d at 83. The purpose of the STA is

furthered “by incentivizing courts to police their own dockets.”

Id. Given the relatively unusual circumstances that led to the

delay in this case, the Court is optimistic that it will not

confront this issue again. Nevertheless, the Court will endeavor

to ensure that continuances are promptly ordered where

appropriate to prevent future violations, “[a]nd prosecutors

should contribute to this process as well.” Id. As discussed

above, there does not appear to be any evidence of intent that

would require a stricter sanction beyond increased vigilance by

the Court and the government. Therefore, the Court finds that



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this factor also does not clearly favor dismissal with

prejudice.

     IV.   Prejudice to Defendant

       Defendant argues that the length of the delay in the fraud

case is presumptively prejudicial to him both because it may

have negatively impacted his ability to mount his defense and

because of the many impacts on his life resulting from being

under indictment. ECF No. 38 at 9-11. Defendant also argues that

courts in this circuit have found that “an eight-month delay is

presumptively prejudicial.” Id. at 9. The government did not

address this consideration in its briefing, noting only

obliquely under another factor that “allowing the government to

re-charge the fraud case following the dismissal in this case

does not create undue burdens on Sonthikoummane.” ECF No. 39 at

6.

       The Court agrees that the burden of facing multiple charges

across multiple cases that have spanned over a year now is

significant. The Court notes that the government has filed a

pending notice of dismissal in the gun case, having withdrawn

its notice of appeal of the Court’s suppression order in that

case. The Court also notes that the Defendant has not been

detained at any point during this period, thereby reducing the

prejudice he may have suffered.              However, the delay in the fraud

case undoubtedly still burdens the Defendant. Given the

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government’s apparent silence on this point, the Court concludes

that Defendant has been prejudiced by the delay.

     Nonetheless, a finding of prejudice to Defendant does not

require dismissal of the case with prejudice in every case. See

United States v. Stayton, 791 F.2d 17, 21 (2d Cir. 1986). The

eight-month delay in this case is well shy of the 23-month delay

that the Stayton court concluded was sufficient to require

dismissal with prejudice in that case. There does not appear to

be a bright-line rule as to how long a delay must extend to

merit dismissal with prejudice, see Bert, 814 F.3d at 80-82, and

another court to consider an eight-month delay found that “at

the very minimum, [the delay] weighs in favor of dismissal of

those counts with prejudice.” United States v. Solnin, 81 F.

Supp. 3d 193, 204 (E.D.N.Y. 2015). Therefore, in this case, the

prejudice to Defendant resulting from the delay is a factor that

weighs in favor of dismissal with prejudice, but it does not

surmount the seriousness of the alleged offense.

                               Conclusion

     The Court has found that the offense is serious, which

weighs against dismissal with prejudice, but the Court has also

found there is prejudice to the Defendant from the delay, which

weighs in the opposite direction. The Court has found further

that the other two factors—facts and circumstances of the case

and impact of reprosecution—do not clearly weigh in one

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direction or the other. Because the Bert court appears to give

the seriousness of the alleged offense factor the most weight,

814 F.3d at 79-80, the Court concludes that dismissal without

prejudice is appropriate here. Therefore, Defendant’s motion to

dismiss, ECF No. 38, is granted in part because this case is

dismissed but denied in part because the government may seek to

refile it if appropriate.

     DATED at Burlington, in the District of Vermont, this 9th

day of September 2025.

                            /s/ William K. Sessions III
                            Hon. William K. Sessions III
                            U.S. District Court Judge




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