The opinion of the court was delivered by: KATZ
The defendant was arrested on June 11, 1997, and a complaint was filed on that date stating, "On or about June 11, 1997, [the defendant] 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)." On August 19, 1997 the defendant had filed a pro se motion to dismiss. An indictment was not filed until September 24, 1997, seventy-five days outside the thirty day limit.
The indictment that was filed included six counts charging the defendant with drug crimes on various dates and with a related firearm charge.
Count Four charges the same conduct on June 11 as was charged in the June 11 Complaint. Defendant was detained for the entire period and has remained in detention until the present date.
Dismissal Without Prejudice
The Speedy Trial Act requires that the government must issue an indictment within thirty days of a defendant's arrest. See 18 U.S.C. § 3161(b). If an indictment is not filed within that time, the complaint must be dismissed. See 18 U.S.C. § 3162(a)(1). The government here concedes that there has been a violation of § 3161(b). The government further concedes that the proper remedy is dismissal. Section 3162(a)(1) leaves to the court's discretion whether the dismissal should be with or without prejudice, and sets forth factors for the court to use to guide that decision. Neither type of dismissal is the presumptive remedy for a violation. See Taylor, 487 U.S. 326, 334, 108 S. Ct. 2413, 101 L. Ed. 2d 297.
In deciding whether the dismissal should be with or without prejudice, the court considers the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; the impact of a reprosecution on the administration of the Speedy Trial Act and on the administration of justice; and the presence or absence of prejudice to the defendant. See 18 U.S.C. § 3162(a)(1); United States v. Taylor, 487 U.S. 326, 334, 101 L. Ed. 2d 297, 108 S. Ct. 2413 (1988); Government of the Virgin Islands v. Bryan, 818 F.2d 1069, 1076 (3d Cir. 1987).
(1) Seriousness of the offense. The defendant was charged in the complaint with distribution of more than 50 grams of cocaine base, or "crack," in violation of 21 U.S.C. § 841(a)(1). That offense carries a statutory mandatory minimum sentence of ten years imprisonment; under the sentencing guidelines, the base offense level is 38, which even in the lowest criminal history category has a sentencing range of 235-293 months imprisonment. This constitutes a serious offense. See United States v. Brown, 770 F.2d 241, 244 (1st Cir. 1985) ("The distribution of a substantial amount of a hard drug like cocaine is a serious and grave offense against society as a whole, and the district court properly found that the offense weighed heavily in favor of dismissal without prejudice."); United States v. Cortinas, 785 F. Supp. 357, 360 (E.D. N.Y. 1992), and cases cited therein ("appellate courts have generally considered cases that involve even small quantities of proscribed drugs to constitute 'serious' offenses for purposes of the Speedy Trial Act").
(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 ...