United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTERCHAPPLL UNITED STATES DISTRICT JUDGE
matter comes before the Court on Report and Recommendation of
Magistrate Judge Mac R. McCoy (Doc. 186) filed on
March 3, 2017. Judge McCoy recommends denying Defendant
Donnie Deruiter's (“Deruiter”) Motion to
Dismiss Indictment. (Doc. 181). Deruiter has filed
timely objections to the Report and Recommendation. (Doc.
197). The Report and Recommendation is ripe for review.
April 30, 2014, a grand jury indicted Deruiter on two counts
of child pornography. (Doc. 1). Seven months later,
Deruiter moved for a hearing on his competency. (Doc.
23). Since then, Deruiter's competency has been
fervently debated and the subject of multiple motions, status
conferences, and two competency hearings. Moreover,
Deruiter's competency and the related proceedings are
integral to his Motion to Dismiss. In Deruiter's Motion
to Dismiss, he argued that two periods of delay were the
Government's fault, and thus the Government violated his
constitutional right to a speedy trial. (Doc. 181).
Specifically he argues, the delays from December 22, 2016
until April 20, 2016 and from August 12, 2016 to the present
are attributable to the Government's actions or
McCoy correctly evaluated Deruiter's Motion under the
Barker balancing test to determine if Deruiter's
constitutional right to speedy trial was violated. See
Barker v. Wingo, 407 U.S. 514, 530 (1972).
Against that backdrop, Judge McCoy found that the length of
delay weighed against the Government, but the other three
factors weighed against Deruiter. As such, Judge McCoy
recommended that Deruiter's constitutional right to a
speedy trial was not violated and that his motion be denied.
district court may refer a motion to dismiss indictment to a
magistrate judge. See 28 U.S.C. § 636(b)(1).
The district court must make a de novo determination
of the report or specified proposed findings or
recommendations to which specific objections are made.
See 28 U.S.C. 636(b)(1). “A specific objection
must identify the portions of the proposed findings and
recommendation to which objection is made and the specific
bases for objection.” Kohser v. Protective Life
Corp., 649 F. App'x 774, 777 (11th Cir. 2016)
(citation omitted). After a careful review of a report and
recommendation, the district court may adopt, reject, or
modify the magistrate judge's finding and recommendation.
28 U.S.C. § 636(b)(1); United States v. Powell,
628 F.3d 1254, 1256 (11th Cir. 2010); see also
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir.
1982). The district court must review legal
conclusions de novo, even in the absence of an
objection. See Cooper-Houston v. S. Ry. Co., 37 F.3d
603, 604 (11th Cir. 1994).
violation of speedy trial must end in dismissal of the
indictment. Strunk v. United States, 412 U.S. 434,
440, (1973). Courts approach speedy trial cases on an ad
hoc basis and consider four factors when deciding
whether a defendant has been deprived of his right.
Barker, 407 U.S. at 530. The factors are the (1)
length of delay; (2) reason for delay; (3) defendant's
assertion of his right; and (4) prejudice to the defendant.
Id.“The right of a speedy trial is necessarily
relative. It is consistent with delays and depends upon
circumstances. It secures rights to a defendant. It does not
preclude the rights of public justice.” Beavers v.
Haubert, 198 U.S. 77, 87 (1905). The right to a speedy
trial is “amorphous, ” “slippery, ”
and “necessarily relative.” Vermont v.
Brillon, 556 U.S. 81, 89 (2009) (citation
omitted). Here, Deruiter objects only to Judge McCoy's
findings on the second and third Barker factors. (Doc. 197).
The Court will address these factors in turn.
Reason for Delay
raises three objections to Judge McCoy's findings
concerning the second Barker factor. (Doc. 197). First, he
argues that the Government failed to timely request
additional testing for Dr. Buigas. (Doc. 197 at 2). Second,
Deruiter maintains that Judge McCoy incorrectly concluded
that Deruiter conceded he could have introduced the
additional medical records at the first competency hearing.
Indeed, Deruiter maintains that it was impossible and
unnecessary for him to do so. (Doc. 197 at 5). Finally,
Deruiter argues that he is not responsible for any delay
associated with the volume of additional medical records.
(Doc. 197 at 8).
second Barker factor asks “whether the government or
the criminal defendant is more to blame for th[e] delay . . .
.” Doggett v. U.S., 505 U.S. 647,
651 (1992). “The government bears the burden of
establishing valid reasons for the delay.” United
States v. Villarreal, 613 F.3d 1344, 1351 (11th Cir.
2010) (citation omitted). Different reasons for delay are
attributed different weight. See United States v.
Avalos, 541 F.2d 1100, 1111 (5th Cir. 1976). Reasons for
delay fall into three categories: (1) deliberate delay; (2)
negligent delay; or (3) justified delay. Id. at
1111-13. A deliberate delay can be categorized as “[a]
deliberate attempt to delay the trial in order to hamper the
defense” and it is “weighed heavily against the
government.” Barker, 407 U.S. at 531. A negligent delay
“should be weighed less heavily but nevertheless should
be considered since the ultimate responsibility for such
circumstances must rest with the government rather than the
defendant.” Id. Finally, a “valid
reason” justifies appropriate delay. Id.
courts have found that delays associated with competency
hearings are valid reasons to delay. See United States v.
Walker, No. 3:09CR366-HEH, 2010 WL 2976049, at *6 (E.D.
Va. July 28, 2010) (discussing the second prong of the Barker
analysis when a delay is attributed to a mental capacity
defense); see also United States v. Abou-Kassem, 78
F.3d 161, 167 (5th Cir. 1996) (finding that defendant waived
his right to speedy sentencing when he filed, after his
conviction, a motion to determine his then-mental condition);
United States v. Jackson, 542 F.2d 403, 407 (7th
Cir. 1976) (attributing time associated with psychiatric
evaluation to defendant and attributing delay associated with
evaluation by Government's expert as a neutral reason).
Other courts have found delays associated with a