govinfo:USCOURTS-idd-4_25-cr-00010-0

MEMORANDUM DECISION AND ORDER - 1 
UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF IDAHO 
 
UNITED STATES OF AMERICA, 
 
 Plaintiff, 
 
 v. 
 
ROBERT LOWELL DUREN, 
 
 Defendant. 
 
 

 
MEMORANDUM DECISION 
AND ORDER 
 
INTRODUCTION 
 Before the Court is Defendant Robert Lowell Duren’s Motion to Dismiss 
(Dkt. 6). The Court will deny the motion. 
Duren’s motion is premised on the fact that he was arrested on federal 
charges on January 17, 2025 but was not brought before a federal magistrate judge 
until March 4, 2026—nearly 14 months later. Duren contends this delay violates 
Rule 5 of the Federal Rules of Criminal Procedure and his Sixth Amendment right 
to a speedy trial. The government contends there is no violation because Duren 
was in state custody during all but a few days due to pending state charges. 
As will be explained below, the Court concludes that Duren was arrested on 
federal charges on January 17, 2025. But it does not need to decide whether Duren 
thereafter remained in federal custody or whether the federal government 

 
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relinquished primary custodial authority to the state during the ensuing months. 
Even assuming Duren’s view of that issue is correct, dismissal is not warranted 
under Rule 5 or the Sixth Amendment. 
FACTS 
On January 14, 2025, a federal grand jury returned an indictment charging 
Duren with two counts of distributing fentanyl and one count of possession with 
intent to distribute methamphetamine. At that time, Duren was facing numerous 
charges in four pending Idaho state cases, all of which had been brought between 
July and October 2024. A summary of the state cases is shown here: 
• Case No 1 – CR10-24-6993. On July 26, 2024, Duren was 
charged with felony and misdemeanor possession of a controlled 
substance. He posted a $30,000 bond. 
 
• Case No. 2 – CR10-24-9852. On October 10, 2024, Duren was 
charged with felony possession of a controlled substance. He 
posted a $15,000 bond. 
 
• Case No. 3 – CR10-24-10374. On October 25, 2024, Duren was 
charged with trafficking in fentanyl, possession of a controlled 
substance, and possession of drug paraphernalia. 
 
• Case No. 4 – CR10-24-10441. On October 28, 2024, Duren was 
charged with multiple counts of possession of a controlled 
substance and possession of drug paraphernalia. On October 31, 
2024, he posted bond relative to the latter two cases— $30,000 in 
Case No. 3 and $50,000 in Case No. 4. 
 
On January 17, 2025—three days after the grand jury returned the federal 
indictment— an Idaho Falls police officer encountered Duren at a laundromat and 

 
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arrested him. Duren was transported to the Bonneville County Jail and during a 
search conducted at the jail, officers discovered a pill later identified as fentanyl. 
Duren was thus booked on state charges that included possession of a controlled 
substance. On that same date, the United States Marshals Service lodged a federal 
detainer with the jail. Within a few days of Duren’s January 2025 arrest, a bail 
agent executed certificates of surrender at the Bonneville County Jail relating to 
Duren’s four pending state cases. 
Over the ensuing months, Duren remained in custody at the Bonneville 
County Jail while his federal case and his five state cases remained pending. The 
state cases were resolved between February 2025 and February 2026. Specifically, 
the state charge arising from the January 17, 2025 arrest was dismissed in February 
2025. A second state case (No. CR10-24-6993) was dismissed in April 2025, and 
the remaining three cases were dismissed in January and February 2026. Case No. 
CR10-24-9852 was dismissed on January 16, 2026; Case No. CR10-24-10374 was 
dismissed on February 4, 2026; and Case No. CR10-24-10441 was dismissed on 
February 26, 2026. 
A federal defender was appointed to represent Duren in March 2025— early 
into that 14-month period between January 2025 and March 2026. On March 2, 
2026, roughly a year after Duren’s federal counsel was appointed, the United 
States Marshals Service served Defendant with the federal arrest warrant. Two 

 
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days later, Duren made his initial appearance in federal court. In the run up to 
Duren’s appearance in federal court, Duren’s federal defense counsel requested 
and received discovery from the government. See Response, Dkt. 25, at 4 
(indicating that the government sent discovery to Duren’s counsel in October 
2025). 
ANALYSIS 
 Duren contends that the delay between his January 17, 2025 arrest and his 
March 4, 2026 initial appearance violated his rights under the Sixth Amendment 
and Federal Rule of Criminal Procedure 5(a). He says each violation independently 
warrants dismissal of the indictment.1 The Court is not persuaded. 
A. Sixth Amendment – Barker Analysis 
 Under the Sixth Amendment, “the accused shall enjoy the right to a speedy 
and public trial.” U.S. Const. amend. VI. In Barker v. Wingo, 407 U.S. 514, 530 
(1972), the Supreme Court identified four factors for assessing whether the right 
has been violated: (1) length of delay; (2) the reason for the delay; (3) the 
defendant’s assertion of his right; and (4) prejudice to the defendant. “None of 
these four factors are either necessary or sufficient, individually, to support a 
 
1 Duren also raised a claim under the Speedy Trial Act, but he abandoned that claim on 
reply. See Reply, Dkt. 30, at 10. 

 
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finding that a defendant’s speed[y] trial right has been violated.” United States v. 
Mendoza, 530 F.3d 758, 762 (9th Cir. 2008) (citing Barker, 407 U.S. at 533). 
Instead, these factors “must be considered together with such other circumstances 
as may be relevant.” Barker, 407 U.S. at 533. 
1. The Length of the Delay 
 The first Barker factor, the length of the delay, is a threshold issue. United 
States v. Gregory, 322 F.3d 1157, 1161 (9th Cir. 2003). Duren must show that the 
delay, typically measured from indictment to trial, “passes a threshold point of 
‘presumptively prejudicial delay.’” Id. If he makes that showing, the Court 
proceeds to the remaining three Barker factors. Id. (quoting United States v. 
Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993)). There is no bright-line rule, but 
delays of around one year are generally found to be presumptively prejudicial. Id. 
Here, Duren points to the 412-day2 delay between indictment and his initial 
appearance. This is sufficient to trigger the Barker inquiry. Still, though, this 
length is not excessive and, accordingly, does not weigh heavily in Duren’s favor. 
See id. (22-month delay between indictment and trial did not weigh heavily in the 
 
2 For the sake of completeness, the Court notes that it calculates the period between 
January 17, 2025 and March 4, 2026 as 411 days (not 412). That discrepancy does not impact the 
analysis. 

 
 MEMORANDUM DECISION AND ORDER - 6 
defendant’s favor); United States v. Tanh Huu Lam, 251 F.3d 852, 857 (9th Cir. 
2001) (although an approximate 15-month delay was long enough to trigger Barker 
inquiry, it only “militate[d] slightly in Lam’s favor”); United States v. Beamon, 
992 F.2d 1009, 1014 (9th Cir. 1993) (17-month and 20-month delays were not 
“great”). 
2. The Reason for the Delay 
 The Court next considers the reason for the delay. Crediting Duren’s 
assertion that he was in federal custody this entire time, the reason for the delay is 
simply stated: The government believed Duren was in state custody because Duren 
had pending state charges, he had been arrested on a new state charge, and the bail 
agent had issued surrender certificates. Certainly, this is not a case in which the 
government delayed the proceedings to gain a tactical advantage, impair the 
defense, or simply delay for the sake of delay. 
Duren suggests that the government attorney was negligent in failing to 
bring him before a magistrate, but from the government’s perspective, counsel was 
waiting for the federal warrant to be executed and was operating under the 
assumption that Duren was in state custody. This was entirely consistent with the 
fact that a new state charge had been filed; several other state felony cases 
remained pending; the bail agent had executed surrender certificates; and the 
United States Marshals Service had lodged a detainer. 

 
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To support his negligence argument—and his more specific argument that 
the government “never checked” the constitutional speedy trial clock—Duren 
points to an email exchange in which the prosecutor stated she had “‘not reviewed 
his [Duren’s] case in awhile since he hasn’t been brought into our custody.’” See 
Reply, Dkt. 30, at 11 (citing Defense Ex. 8). But that characterization is 
incomplete. Read in context, the prosecutor was responding to defense counsel’s 
inquiry regarding whether the government intended to seek a superseding 
indictment— not whether Duren should be brought before a magistrate judge. Thus, 
the email does not suggest that the government had ceased monitoring the case or 
forgotten about Duren. Rather, it reflects the government’s understanding that 
Duren remained in state custody and that the federal case would proceed after 
resolution of the state matters. 
In short, this record shows that the reason for the delay resulted from the 
unusual custodial posture created by the federal arrest, the new state charge, the 
pending state charges, the surrender certificates, and the federal detainer. Certainly, 
the record does not show deliberate delay, bad faith, or tactical manipulation by the 
government. Nor does the Court find that the delay was caused by governmental 
negligence. Under these circumstances, the “reason-for-the-delay” factor does not 
weigh in Duren’s favor. 

 
 MEMORANDUM DECISION AND ORDER - 8 
3. Duren’s Assertion of His Right to a Speedy Trial 
 The third Barker factor considers Duren’s assertion of his rights. The record 
reflects that Duren did not take any steps to assert his right to a speedy trial 
between January 2025 and March 2026. He contends he cannot be faulted for his 
inaction, however, given that he “had no forum in which to object.” Reply, Dkt. 30, 
at 12. He also says that “even if [he] had done nothing, the government’s argument 
would fail” because the government has a constitutional duty to bring him to trial. 
Id. 
The Court is unpersuaded. First, Duren’s threshold argument that he had no 
forum in which to object is circular, given his insistence that he was in federal 
custody the entire time. Second, Duren had federal counsel by March 2025. Thus, 
he could have filed a motion seeking some form of relief during the intervening 
months. Third, while the government has a constitutional duty to bring defendants 
to trial, this step of the Barker analysis requires the Court to consider what, if 
anything, the defendant did to assert his rights during the period of delay. Although 
defense counsel communicated with the government regarding the federal case, 
neither Duren nor his counsel sought judicial relief regarding the alleged Rule 5 or 
Sixth Amendment violations. Accordingly, the third factor weighs in the 
government’s favor. 

 
 MEMORANDUM DECISION AND ORDER - 9 
4. Actual Prejudice 
 The fourth factor is whether Duren suffered actual prejudice as a result of 
the delay. As noted above, the Court already concluded at the threshold that Duren 
is entitled to a presumption of prejudice. But “presumptive prejudice is simply 
‘part of the mix of relevant facts, and its importance increases with the length of 
the delay.’” Gregory, 322 F.3d at 1162 (citing Beamon, 992 F.2d at 1013). Actual 
prejudice is typically demonstrated in three ways: (1) oppressive pretrial 
incarceration, (2) the defendant’s own anxiety and concern, and (3) the possibility 
that the defense will be impaired because of the delay. Doggett v. United States 
505 U.S. 647, 654 (1992). 
a. Impairment of Duren’s Defense 
 The Court will begin with Duren’s third asserted reason— that his defense 
has been impaired because of the delay. Duren has failed to demonstrate any such 
impairment. He has not identified any witnesses, evidence, or legal defenses he 
will be unable to present because of the delay. Instead, he relies on generalizations 
and rhetoric. For example, he says, “It is difficult to measure the precise evidence 
lost or the witness memory that faded over 412 days” and that his “inability to 
participate in his own defense for over a year is prejudice to the defense.” Reply, 
Dkt. 30 at 14. He does not offer any details or specifics. Further, this argument is 
undermined by the fact that he requested and received discovery in the fall of 2025. 

 
 MEMORANDUM DECISION AND ORDER - 10 
b. Oppressive Pretrial Incarceration 
 As for oppressive pretrial incarceration, Duren says he served nearly 14 
months in a county jail “with limited programming, limited recreation, and limited 
access to services.” Id. at 13. But, once again, Duren’s argument is thin and 
generalized. He does not offer specifics regarding what programming, recreational, 
or rehabilitative programs were (or were not) offered, instead saying only that they 
were “limited.” He also says his grandmother died while he was in jail, and that he 
lost his job, his housing, and his car. These are unfortunate but common collateral 
consequences of incarceration. 
 It’s also worth noting that this Court routinely recommends that defendants 
receive credit for time served in federal custody. Here, assuming Duren was in 
federal custody— and that he did not receive credit against any other sentence— the 
Court would recommend credit for time served. Other courts have noted that 
“though time alone may, in some cases, rise to the level of oppressive pretrial 
incarceration, credit for time served mitigate[s] the potential oppressive effects 
of . . . incarceration.” Hakeen v. Beyer, 990 F.2d 750, 762 (3d Cir. 1993) (internal 
quotation marks and citation omitted). 
c. Anxiety and Concern 
 In terms of anxiety and concern, Duren says he was anxious and concerned 
because he was sitting in county jail on federal charges and nobody explained why. 

 
 MEMORANDUM DECISION AND ORDER - 11 
He says that “[o]ver the course of his detention,” which spanned roughly 14 
months, “he repeatedly wrote jail officials trying to understand why he was being 
held and what was happening with his case” but “[h]e never got clarity.” Reply, 
Dkt. 30, at 13. 
The record does not bear out this assertion. It shows that Duren reached out 
to jail staff once in January 2025. He inquired about his federal charges, why he 
was in custody, and why he couldn’t be released on bond. See Defense Ex. 5, Dkt. 
30-5, at 1 (“Can you please give me any info on the hold I have avoiding my being 
able [t]o bond. Such as what my charge is, where the alleged crime was committed, 
how long do they have to hold me, etc. …???”). The same day, Duren received the 
following response, explaining that he remained subject to state charges and that 
the federal warrant would be served once those matters concluded: 
“[Y]ou have a federal hold. When you are done with your local 
charges they will serve the [federal] warrant on you and transport 
you to a federal facility. After that, you will be arraigned. 
Currently, the only information you have is you have a federal 
hold. There is nothing stopping you from bonding on your local 
charges if/when you have a bond, but at that point, the US 
Marshals will be notified that you are ready for pickup.” 
 
Id. After receiving that response, the record does not reflect any queries from 
Duren for the next 11 months. Then, in late 2025 and early 2026 (as his pending 
state cases were nearing resolution), Duren asked a number of questions regarding 
his charges and why he was being held, particularly given that he had previously 

 
 MEMORANDUM DECISION AND ORDER - 12 
posted bond on his four pending state cases. Id. at 2. Jail staff responded, letting 
him know that the bond on his four state cases had been revoked and that he 
would be held until those cases had been discharged. Duren was also informed, 
again, that “[t]he US Marshal Service will not take possession until the local 
charges have been resolved. [A]t that point they may serve their warrant and the 
federal court process will begin.” Id. at 5-6. 
This record does not support Duren’s contention that he remained in custody 
for 14 months without any understanding of why he was being held or when his 
federal case would begin. 
Duren also argues, more generally, that he suffered “the anxiety and concern 
that accompany public accusation.” Reply, Dkt. 30, at 13. This claim is undermined 
by the fact that the federal warrant was not formally executed until March 2026. 
Moreover, Duren already faced several active state felony prosecutions, one of 
which arose from overlapping conduct. During the relevant period, Duren was 
litigating those state cases. Trial dates were repeatedly scheduled, counsel 
appeared on his behalf, motions were filed, and the state cases continued to move 
toward resolution. Under these circumstances, the anxiety attributable specifically 
to the delayed federal proceedings is difficult to meaningfully distinguish from the 
anxiety accompanying Duren’s existing state criminal matters. 
Considering all these circumstances, the Court finds the “anxiety and 

 
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concern” factor neutral. At best, this factor would weigh slightly in Duren’s favor, 
but not enough to make a difference in the overall balancing of the Barker factors. 
More broadly, after considering all of the Barker factors outlined above, the 
Court concludes that dismissal of the indictment is not warranted. 
B. Rule 5 
 Likewise, the Court is not persuaded that Duren is entitled to dismissal based 
on the alleged violation of Rule 5 of the Federal Rules of Criminal Procedure. Rule 
5 requires that a person arrested on a federal charge be brought before a magistrate 
judge “without unnecessary delay.” Fed. R. Crim. P. 5(a)(1)(A). The rule is 
triggered when a defendant is arrested or detained for a federal offense. United 
States v. Gowadia, 760 F.3d 989, 993–94 (9th Cir. 2014). 
 Based on the plain language of Rule 5, Duren was arrested on federal 
charges on January 17, 2025. As such, he should have been taken before a 
magistrate judge “without unnecessary delay.” 
The normal remedy for a Rule 5 violation is suppression of statements made 
during the delay. United States v. Dominguez-Caicedo, 40 F.4th 938, 950 (9th Cir. 
2022). If, however, the defendant has not made any incriminating statements 
during the delay—and the violation is “particularly egregious,” —dismissal is an 
available remedy. Id. 
Here, Duren does not identify any confession, admission, or other 

 
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incriminating statement obtained during the period of delay. Accordingly, the 
ordinary remedy of suppression is unavailable. Duren therefore urges the Court to 
conclude that the delay itself—spanning 411 days between January 17, 2025 and 
March 4, 2026—rendered the Rule 5(a) violation “particularly egregious” and 
warrants dismissal of the indictment. 
Again, the Court is not persuaded. Duren’s argument focuses almost 
exclusively on the length of the delay while giving insufficient consideration to the 
surrounding circumstances that produced it. Although the duration of the delay is 
significant, length alone does not determine whether a Rule 5(a) violation is 
“particularly egregious” for purposes of dismissal. Rather, courts considering 
dismissal in the absence of suppressible evidence have examined not only the 
length of the delay, but also whether the defendant’s continued incarceration was 
attributable solely to the Rule 5(a) violation and whether the defendant likely 
would have remained incarcerated even absent the violation. See, e.g., United 
States v. Osunde, 638 F. Supp. 171, 177 (N.D. Cal. 1986). 
For example, in United States v. Osunde, 638 F. Supp. 171, 177 (N.D. Cal. 
1986), the district court emphasized that dismissal may be appropriate where the 
delay is “egregiously lengthy” and where the defendant’s detention resulted 
directly from the Rule 5 violation itself. Id. At the same time, the court 
distinguished circumstances in which a defendant likely would have remained in 

 
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custody regardless of the presentment delay. Id. That distinction is important here. 
Duren contends that the Rule 5(a) violation was the sole reason for his 
incarceration during the relevant period. As discussed above, however, the record 
reflects that Duren was also subject to multiple pending state criminal cases during 
that time and that a bail agent executed certificates of surrender in Duren’s four 
pending state cases. Although the parties dispute the legal effect of those surrender 
certificates, their existence nevertheless demonstrates that Duren’s custodial status 
cannot be attributed solely to the alleged Rule 5(a) violation. 
This circumstance materially distinguishes the present case from those in 
which dismissal has been deemed an appropriate sanction. Indeed, it’s worth 
noting that in Bayless v. United States, 381 F.2d 67 (9th Cir. 1967)—a case where 
the Ninth Circuit concluded that the district court had “correctly denied” a motion 
to dismiss the indictment for a Rule 5(a) violation—any prejudice the defendant 
suffered was minimal since he would have been in prison even absent the Rule 5(a) 
violation. See United States v. Melendez, 55 F. Supp. 2d 104, 108 (D.P.R. 1999) 
(discussing Bayless, observing that the Ninth Circuit “did not mention that the 
prejudice the defendant suffered by the Rule 5(a) violation was minimal since he 
still would have been in prison but for the Rule 5(a) violation”). Duren is in a 
similar position. Indeed, even if he had successfully bonded out on his state 
charges, and as the government persuasively pointed out during the hearing on this 

 
 MEMORANDUM DECISION AND ORDER - 16 
 
 
motion, Duren would have been detained on the federal charges. Thus, as in 
Bayless, any prejudice attributable specifically to the Rule 5(a) violation was 
limited because Duren almost surely would have remained incarcerated even in the 
absence of the violation. 
In sum, the Court concludes that although the presentment delay in this case 
was lengthy, the surrounding facts demonstrate that any Rule 5(a) violation was 
not “particularly egregious” within the meaning contemplated by Dominguez-
Caicedo and related authority. Accordingly, dismissal of the indictment is not an 
appropriate remedy. 
ORDER 
 IT IS ORDERED that: 
1. Defendant’s Motion to Dismiss (Dkt. 6) is DENIED. 
2. Defendant’s Motion for Leave to File Excess Pages (Dkt. 29) is 
GRANTED. 
DATED: June 15, 2026 
 
 
 _________________________ 
 B. Lynn Winmill 
 U.S. District Court Judge 
 

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