(2) Circumstances which led to the violation of the Act. The government admits that the reason the indictment was not filed within thirty days of the defendant's arrest was "inadvertence on the part of the government." See Gov. Br. 3. From the time of the defendant's arrest until September 19, 1997, the parties were involved in plea negotiations and discussions in which the defendant cooperated in the investigation of other criminal activity about which he had knowledge. During this period of negotiation and cooperation, the government's failure to move for a continuance under the Speedy Trial Act was inadvertent. Although time spent in plea negotiations is not excludable under the Act, it is a relevant factor to consider with regard to what caused the delay. See United States v. Saravia, 851 F. Supp. 490, 493 (D. Me. 1994). Overall in this case, there is no showing of bad faith, or a showing of a pattern of neglect by the local United States Attorney's office. See United States v. Hernandez, 863 F.2d 239, 244 (2d Cir. 1988) ("an 'isolated unwitting violation' of the Speedy Trial Act cannot support a dismissal with prejudice," (quoting Taylor) ).
(3) Impact of reprosecution. In Taylor, the Supreme Court recognized that the administration of the Speedy Trial Act is not necessarily offended by a dismissal without prejudice: "It is self-evident that dismissal with prejudice always sends a stronger message than dismissal without prejudice. . . . Nonetheless, the Act does not require dismissal with prejudice for every violation. Dismissal without prejudice is not a toothless sanction." 487 U.S. at 342. Given the lack of willful conduct or bad faith present in this case, as well as the serious nature of the crime charged, the administration of justice weighs in favor of allowing reprosecution. See United States v. Long, 858 F. Supp. 601, 604 (N.D. W.Va. 1994) ("It certainly is not in the best interest of justice or the public to allow this defendant to avoid prosecution in these circumstances," where "there is no evidence that a delay in the indictment gave the government a tactical advantage, that the delay was purposeful, or that the defendant was unfairly prejudiced by the delay."); United States v. McGrier, 848 F. Supp. 649, 653 (S.D. W.Va. 1994) (given there was no deliberate attempt to evade the Act, and given the government conceded dismissal, "the Court does not believe it furthers the administration of justice to foreclose reprosecution").
(4) Prejudice to the defendant. Defendant was detained an additional seventy-five days. Certainly any excess period of incarceration is a burden on an individual, but this is not a delay that mandates dismissal with prejudice. Compare United States v. Stayton, 791 F.2d 17, 21 (2d Cir. 1986) (twenty-three month delay between indictment and prosecution was "dominating factor" in decision to dismiss with prejudice). The delay caused no prejudice to the defendant in his ability to prepare his defense, as it was not long enough to cause potential witnesses to become unavailable or lose memories of the relevant events.
Based on these findings with regard to the above factors, the dismissal of the Complaint and Count Four of the indictment are without prejudice.
Only Count Four is Dismissed
As described above, the Criminal Complaint filed on June 11, 1997 contained this statement of the offense: "On or about June 11, 1997, at Philadelphia, Pierrot Archer, a/k/a Peter Archer, knowingly and intentionally possessed with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1)." Count Four of the Indictment filed on September 24, 1997 charges, "On or about June 11, 1997, at Philadelphia, in the Eastern District of Pennsylvania, defendant Pierrot Archer a/k/a Peter Archer a/k/a English knowingly and intentionally distributed more than 50 grams, that is, approximately 55 grams, of a mixture or substance containing a detectable amount of cocaine base, commonly known as "crack" a Schedule II narcotic drug controlled substance. In violation of Title 21, United States Code, Section 841(a)(1)."
The indictment contains six counts, and this dismissal is only of Count Four, which is the only count based on conduct that was the basis of the complaint. The other counts of the indictment were not contained in the complaint and thus are not subject to dismissal.
See United States v. Mosquera, 95 F.3d 1012, 1013 (11th Cir. 1996) ("The Speedy Trial Act does not guarantee that an arrested individual indicted within thirty days of his arrest must, in that thirty-day period, be indicted for every crime known to the government, failing which he may never be charged."); United States v. Giwa, 831 F.2d 538, 541 (5th Cir. 1987) ("every circuit . . . has adopted a narrow interpretation of section 3162(a)(1), holding that if the Government fails to indict a defendant within thirty days of arrest, the Act requires dismissal of only the offense or offenses charged in the original complaint " (emphasis in original) ) and cases cited therein. Although the language of § 3162(a) speaks of dismissing the complaint, an indictment brought outside the thirty day period should be dismissed if the underlying complaint should have been dismissed. See United States v. Derose, 74 F.3d 1177, 1182-83 (11th Cir. 1196); United States v. Antonio, 705 F.2d 1483, 1486 (9th Cir. 1983). Therefore, only the count directly coming from the complaint is subject to dismissal.
Defendant argues that Counts 5 and 6 should be dismissed in addition along with Count 4, because "Counts 4, 5 and 6 all arise out of the same transaction which was described in the complaint, since it is apparent that the search of the properties was based on information obtained from Defendant at the time of his arrest." This is not correct. Courts narrowly interpret the rule of § 3162(a)(1) to include only the charge actually articulated in the complaint; a transactional test is not used. The Fifth Circuit explained this point thoroughly in United States v. Giwa, 831 F.2d 538 (5th Cir. 1987), where it rejected defendant's argument that because his arrest and his indictment on other charges "flowed out of the same set of transactions and circumstances, the spirit of the Speedy Trial Act [was] violated," id. at 540:
The specific statutory language in section 3162(a)(1) supports the construction given that provision by the courts. The Act requires dismissal of only those charges contained in the original complaint. . . . Moreover, the legislative history of the Act supports a narrow interpretation of section 3162(a)(1). While the initial drafts of the Act barred prosecution of those offenses contained in the complaint or "any offense based on the same conduct or arising from the same criminal episode," or those offenses "which were known or reasonably should have been known at the time of dismissal," Congress expressly rejected those drafts in favor of the more restrictive version currently in effect.
Id. at 541 (citations and footnote omitted). See also Derose, 74 F.3d at 1183-84; United States v. Palomba, 31 F.3d 1456, 1464 (9th Cir. 1994); United States v. Napolitano, 761 F.2d 135, 137 (2d Cir.), cert. denied, 474 U.S. 842, 88 L. Ed. 2d 106, 106 S. Ct. 129 (1985).
The only recognized exception to this rule is the "gilding" exception. See United States v. DeTienne, 468 F.2d 151, 155 (7th Cir. 1972) ("if the crimes for which a defendant is ultimately prosecuted really only gild the charge underlying his initial arrest and the different accusatorial dates between them are not reasonably explicable, the initial arrest may well mark the speedy trial provision's applicability as to prosecution for all the interrelated offenses"); see also Derose, 74 F.3d at 1183-84.
The charges in Counts 5 and 6 do not merely gild Count 4, because they allege different substantive crimes. See, e.g., United States v. Nixon, 634 F.2d 306, 309 (5th Cir. 1981) (holding that "even though proof of perjury must rely in part on the same facts as would support a counterfeiting charge, perjury is a distinct and separate offense," and thus gilding exception did not apply).
§ 3164 Review of Conditions of Release
Defendant's motion also raises the issue of the applicability of 18 U.S.C. § 3164, which requires that "failure to commence trial of a detainee [in ninety days] . . . shall result in the automatic review by the court of the conditions of release. No detainee . . . shall be held in custody pending trial after the expiration of such ninety-day period required for the commencement of his trial." 18 U.S.C. § 3164(c).
It is true that Mr. Archer has been continuously detained since June 11, 1997, which is in total more than the allowable ninety days. But he has only been detained since that date on the conduct alleged in the complaint. This Order dismisses those charges; therefore he is no longer held on them. The Speedy Trial clock did not start to run on the remainder of the indictment until those charges were filed in the indictment on September 24, 1997. For those charges, the ninety day period has not expired, and defendant is thus not entitled to a review of his conditions of release. In any event, detention on the remaining charges is appropriate, based on the reasoning set forth in the Pretrial Detention Order of June 20, 1997, which reasoning is equally applicable to the defendant's current circumstances.
BY THE COURT:
MARVIN KATZ, J.