The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge
On January 12, 2006, defendants Pressley, Scott, King, and Simpkins were indicted by a grand jury sitting in the Williamsport Division of the Middle District of Pennsylvania on a one-count indictment. The grand jury charged that the defendants conspired to possess with intent to distribute more than five grams of cocaine base known as crack, in violation of 21 U.S.C. § 846 (Count One). It was also recited that the defendants possessed a number of firearms during and in furtherance of the conspiracy. All defendants entered pleas of not guilty to the original indictment, and all are incarcerated awaiting trial.
We granted as unopposed motions to compel filed separately by defendants Scott and Simpkins. (Rec. Doc. Nos. 74 & 81). Defendants Scott and Simpkins have filed notices that they will contest the authenticity and admissibility of the government's evidence at trial, pursuant to our pretrial order dated March 10, 2006. (See Rec. Doc. Nos. 40, 76-79, 87-90.)
The government moved to continue the trial until June 1, 2006. All defendants filed statements of reasons for their non-concurrence in the motion. On May 1, 2006, we denied the government's motion to continue. (Rec. Doc. No. 93). Jury selection was scheduled for May 8, 2006.
A flurry of activity followed our denial of the government's motion to continue. On May 2, 2006, the day after we denied the motion to continue, the Assistant United States Attorney assigned to the case filed a motion to disqualify defendant Pressley's attorney due to a conflict of interest. On May 3, 2006, the Assistant United States Attorney traveled to Harrisburg to obtain a first superseding indictment, which contains nine counts.*fn1, *fn2
On May 5, 2006, defendant Simpkins filed a motion to dismiss the First Superseding Indictment, with prejudice. (Rec. Doc. No. 107.) All defendants have joined this motion.*fn3 Also on May 5, defendant Simpkins filed a Motion Upon the filing of a superseding indictment, the government shall file a statement indicating whether the United States has filed or will file a motion for a continuance of trial based upon the filing of the superseding indictment and indicating the changes that have been made in the superseding indictment in comparison to the preceding indictment.
Requesting the Production of Transcripts From the Grand Jury Returning The Indictment Returned January 12, 2006 And Superseding Indictment Returned May 3, 2006. (Rec. Doc. No. 112.) All defendants have joined in this motion as well.*fn4
On May 5, 2006, we issued an order continuing the trial of all four defendants until our disposition of three important pretrial motions: the government's motion to disqualify Pressley's counsel, the defendants' motion to dismiss the superseding indictment with prejudice, and the defendants' motion requesting the production of grand jury transcripts.
We have decided the motion for disqualification.*fn5 Now before the court are Defendant Pressley orally joined the motion during the hearing to disqualify his attorney, and new counsel for Pressley filed a motion to join on May 26, 2006. (Rec. Doc. No. 146.) the defendants' motions to dismiss the superseding indictment with prejudice, and defendants' motion requesting the production of grand jury transcripts. In this memorandum, we also consider defendant King's motion for production of the transcript from the in camera hearing regarding defendant Pressley's representation. (Rec. Doc. No. 125.)
For the following reasons, we will deny the motions.
I. Motion To Dismiss the Superseding Indictment, With Prejudice
The defendants argue that the filing of the superseding indictment forced them to make a choice between two unacceptable alternatives: proceed to trial on the first superseding indictment without having adequate time to prepare a defense against the new charges, or request a continuance and surrender the right to a speedy trial. They therefore ask that we dismiss the superseding indictment, with prejudice.
Below we explain our conclusion that there has been no violation of the Speedy Trial Act in this case. We then discuss the defendants' arguments regarding the abuse of prosecutorial discretion.
The Speedy Trial Act provides that "[i]n any case in which a plea of not guilty is entered, the trial of a defendant . . . shall commence within seventy days . . . from the date the defendant has appeared before a judicial officer of the court in which such charge is pending." 18 U.S.C. § 3161(c)(1). "Numerous exclusions, however, give flexibility to this facially rigid seventy-day period." United States v. Felton, 811 F.2d 190, 193 (3d Cir. 1987); see 18 U.S.C. § 3161(h). "If the defendant is not brought to trial within seventy days, as augmented by ...