The opinion of the court was delivered by: HUYETT, 3RD
DANIEL H. HUYETT, 3rd, Judge
Defendant John D. Jones seeks dismissal with prejudice of the indictment against him in this action on the grounds that the Speedy Trial Act, 18 U.S.C. § 3161 et seq., has been violated. The government does not oppose the defendant's motion to dismiss, but requests that the indictment be dismissed without prejudice. After a careful review of the circumstances of this case, I conclude that the indictment should be dismissed with prejudice.
Defendant was indicted on November 9, 1982 on two counts of sale of goods stolen from interstate commerce, three counts of receipt of motor vehicles stolen from interstate commerce, and three counts of mail fraud. On December 22, 1982, I entered an order disqualifying defendant's counsel, Wallace C. Worth, Jr., because Mr. Worth had previously represented a key government witness. Defendant filed an appeal from that order in the Court of Appeals for the Third Circuit on December 30, 1982. On November 30, 1983, the Court of Appeals entered a Judgment Order affirming my order of disqualification. Defendant then filed a petition for writ of certiorari in the Supreme Court. The Court denied defendant's petition on February 28, 1984.
The Clerk of the Court of Appeals for the Third Circuit sent a letter to the Clerk of the District Court, Michael E. Kunz, dated March 1, 1984 enclosing a certified copy of its reissued Judgment Order. (Affidavit of Sally Mvros, U.S. Court of Appeals for the Third Circuit).
The reissued Judgment Order was filed by the Clerk of the District Court and docketed March 2, 1984 as "Cert. copy of Judgment order of USCA affirming judgment of district court, filed."
Both Stanford Shmukler, counsel for defendant, and JoAnne Epps, the Assistant United States Attorney assigned to this case, were sent copies of the March 1, 1984 letter. Sally Mvros, Clerk, Third Circuit, certified under oath that she sent copies of the letter to counsel for both parties and the copies of the letters were never returned to her office as undelivered. At the hearing on October 23, 1984, Mr. Schmukler acknowledged receipt of this letter and presented the copy he had received.
Both by affidavit and at the October 23 hearing, Ms. Epps stated that she never received a copy of the Third Circuit's March 1, 1984 letter.
By affidavit, Walter S. Batty, Jr., the Chief of Appeals for the United States Attorney's Office, stated that he does not recall seeing the March 1, 1984 letter pertaining to this criminal action, and that it is his responsibility to review all correspondence from the Third Circuit Court of Appeals received by the Office of the United States Attorney.
Ms. Epps stated in her affidavit that the United States Attorney's Office receives the Criminal Law Reporter, but it is not her policy to review it to determine the status of her pending cases and it is not the responsibility of anyone else in the United States Attorney's Office to review the Criminal Law Reporter on behalf of the attorneys in the United States Attorney's Office. Ms. Epps further stated that United States Attorney's Office maintains no log of incoming mail.
Ms. Epps stated that it was not until approximately August 1, 1984 when she telephoned the Clerk for the Supreme Court that the government learned that certiorari had been denied on February 28, 1984 and that the action had been returned to the Third Circuit. At this time, Ms. Epps called my chambers; this was the first time that I had been made aware of the status of the case. Therefore, on August 8, 1984, I entered an order setting the trial date for September 17, 1984. Defendant now contends that the Speedy Trial Act has been violated and the indictment should be dismissed with prejudice.
Under the Speedy Trial Act, a trial following an appeal should begin within seventy days from the date the action occasioning the retrial becomes final. 18 U.S.C. § 3161(e).
Both parties agree that the seventy-day period has been exceeded. The Third Circuit's mandate was reissued on March 1; the seventy-day period ended on or about May 11, 1984, well before the date the government or I became aware of the status of this criminal action. The only question is whether the indictment should be dismissed with or without prejudice. Section 3162 of the Speedy Trial Act provides that:
18 U.S.C. § 3162(a) (2) (emphasis added). Section 3161(e) states "the sanctions of section 3162 apply to this subsection." The government contends that each of the three factors listed warrant dismissal without prejudice. The government asserts that the case is a serious one; defendant is charged with receiving stolen property, selling stolen goods, and participating in a mail fraud scheme. The government further contends that the circumstances which necessitate dismissal of the indictment support a dismissal without prejudice. The government states that neither the United States Attorney's Office nor my chambers received notice of the Third Circuit's Judgment Order until August 1, 1984; in the interim, the government notes, defendant failed to take any action to ensure a speedy trial. The delay that resulted, the government claims, is not the sort of delay the Speedy Trial Act was designed to redress. Finally, the government argues that a dismissal without prejudice in this case will not thwart the purpose of the Speedy Trial Act because the defendant has suffered no prejudice and the delay was not the fault of the United States Attorney's Office or of the court.
Defendant, on the other hand, contends that this is the sort of case for which dismissal with prejudice is appropriate. The crime charged is not so serious, defendant contends, that the state prosecution would not serve the public interest. Defendant further argues that because the defendant did not contribute to the delay in any way and is prejudiced by it, the Speedy Trial Act requires that the indictment be dismissed with prejudice. Finally, defendant contends that a prosecution at this time would not only prejudice the defendant but also undermine the overall intent of the Act which was designed to protect society's interest in the prompt disposition of criminal cases.
In support of his position, defendant relies on two recent cases in which the courts dismissed the indictments with prejudice. In United States v. Angelini, 553 F. Supp. 367, 370 (D. Mass. 1982), the court, examining the three factors suggested by § 3162(a)(2), held that dismissal with prejudice was appropriate. Similarly, in United States v. Caparella, 716 F.2d 976 (2d Cir. 1983), the court dismissed with prejudice the indictment against defendant for mail fraud. Considering the legislative history of the 1979 amendments to the Act, the court in Angelini held that a presumption exists in favor of dismissing an indictment with prejudice. Any other position, the court concluded, would make the Act self-contradictory because a defendant would be more prejudiced by the time delay created by a dismissal without prejudice than by no dismissal at all. Angelini, 553 F. Supp. at 370. Disagreeing with the court on Angelini, the court in Caparella found no presumption in favor of dismissal with prejudice; nevertheless, the Caparella court noted the legislative history of § 3161 et seq. which states in part "'the committee intends and expects that use of dismissal without prejudice will be the exception and not the rule.'" Caparella, 716 F.2d at 979, quoting H. R. Rep No. 390, 96th Cong., 1st Sess. 8-9 (reprinted in 1979 U.S. Code Cong. & Ad. News 805, 812-13). See also United States v. Iaquinta, 515 F. Supp. 708, 712 (N.D. W.V. 1981), rev'd on other grounds, 674 F.2d 260 (4th Cir. 1982) (legislative history suggests that dismissal without prejudice should be granted only in rare instances, and the rule will be dismissal with prejudice.).
At the October 23, 1984 hearing, counsel for the government conceded the existence of a presumption of dismissal with prejudice, but argued that there will be cases when dismissal without prejudice is appropriate and this is such a case. Whether or not there is a presumption in favor of dismissal with prejudice, application of the statutory criteria set forth in § 3162 to the facts in this case inevitably leads to the conclusion that dismissal with prejudice is warranted.
I shall examine each of the three factors for determining the issue of prejudice. The first factor is the seriousness of the offenses with which defendant is charged. See 18 U.S.C. § 3162(a)(2); United States v. Carrasquillo, 667 F.2d 382, 390 (3d Cir. 1981). Defendant does not deny that the federal charges against him are serious, but he contends that his offenses are covered by state charges. In December, 1983, defendant was convicted in Lehigh County of 25 of 26 felony counts of receiving stolen property and related charges; the state prosecution was the result of a joint investigation by the Pennsylvania State Police and the Federal ...