United States v. Bittle, 699 F.2d 1201 (D.C. Cir. 1983)

TAMM, Circuit Judge:

The Speedy Trial Act provides that an indictment must be filed within thirty days of an individual’s arrest. Section 3161(d)(1) of the Act usually permits the time period for indictment to run anew when a complaint is dismissed. The district court, however, interpreted the section not to apply when the complaint has been dismissed more than thirty days after arrest and the dismissal would have been with prejudice if the issue had been addressed. We agree with this construction and find that the district court properly exercised its discretion in determining that the complaint should have been dismissed without prejudice and, therefore, that the district court correctly denied the motion to dismiss the indictment. Accordingly, we affirm.

I. Factual Background & Statutory Framework

Defendant was arrested on December 10, Í981. On the following day a complaint was filed charging him with forging and uttering a United States Treasury check in violation of 18 U.S.C. § 495. On January 22, 1982, the United States dismissed the complaint by filing a praecipe. On January 28 an original indictment was returned charging defendant with two counts of forging and uttering a United States Treasury check, 18 U.S.C. § 495, and one count of possession of stolen mail matter, 18 U.S.C. § 1708. These charges were based on the same criminal conduct as the complaint that had previously been dismissed. On February 5 defendant filed a motion to dismiss the indictment for violation of the Speedy Trial Act and Local Rule 2-7(4)(a) of the United States District Court for the District of Columbia. United States District Judge Joyce Hens Green denied defendant’s motion. On March 3, after a stip

ulated bench trial, the court found defendant guilty of possession of stolen mail matter. The other two counts of the indictment were dismissed in accordance with the stipulation. Defendant was sentenced to imprisonment for fifteen months and fined $750; execution of the sentence was suspended, and defendant was placed on probation for eighteen months with special conditions.

Title 18 U.S.C. § 3161(b) provides that an indictment must be filed within thirty days of an individual’s arrest.1 Title 18 U.S.C. § 3161(c)(1) provides that the trial of an individual must commence within seventy days of the latter of the filing of the indictment and the individual’s appearance before a judicial officer.2 If these time limits are not met, the indictment or the charges contained in the - complaint must be dismissed. 18 U.S.C. § 3162(a) (1976).3 The trial judge may dismiss the indictment or complaint with or without prejudice. Id. If a complaint is dismissed without prejudice, and thereafter a complaint or indictment is filed based on the same criminal episode as the first complaint, “the provisions of [subsections 3161(b) and (c)] shall be applicable with respect to such subsequent complaint [or] indictment.” 18 U.S.C. § 3161(d)(1) (Supp. V 1981).4 If an indictment is dismissed upon motion of the government, and thereafter a charge is

filed for the same offense, “any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge” is excluded in applying the time limits of subsections 3161(b) and (c). 18 U.S.C. § 3161(h)(6) (1976).5 The District Court Rules supplement the Speedy Trial Act, but they do not alter the statutory framework described above. See D.D.C.R. 2-7(4), (8).6

The trial court recognized that the 43-day period between defendant’s arrest and the dismissal of the complaint and the 49-day period between defendant’s arrest and indictment exceeded the Speedy Trial Act’s 30-day time limit for indictment. Trial Record, Part 2 (T.R.) at 9,13-14. The court also recognized that the Speedy Trial Act mandated that the complaint be dismissed, as it had been. Id. at 9. Nevertheless, the court held that the indictment could be dismissed only if the complaint should have been dismissed with prejudice. Id.7 Section 3161(d)(1) usually permits the time period for indictment to run anew when a complaint is dismissed. The court, however, interpreted section 3161(d)(1) not to apply when the complaint has been dismissed more than thirty days after the arrest and the dismissal would have been with prejudice if the issue had been addressed. The court, therefore, had to inquire whether the complaint should have been dismissed with or without prejudice. It considered the three factors listed in section 3162(a)(1), the seriousness of the offense, the circumstances leading to the dismissal, and the impact of reprosecution on the administration of justice and on the administration of the Speedy Trial Act, as well as other factors. T.R. at 1A-17. The court found that the crime of possessing stolen mail matter is relatively serious, that the government’s exceeding the time limit was unintentional and is unlikely to recur, that the delay beyond the time limit was short, and that defendant suffered little prejudice. Id. Weighing these factors, the court found that the complaint should have been dismissed without prejudice. Id. at 16-17. Therefore, it denied the motion to dismiss the indictment.

Defendant contends that section 3161(d)(1) does not apply when a complaint is dismissed more than thirty days after an arrest and that in the present case sections 3161(b) and 3162(a)(1) require that the indictment be dismissed without inquiry into whether the complaint should have been dismissed without prejudice. Alternatively, defendant argues that the trial court misapplied the three factors set forth in section 3162(a)(1) in determining that the complaint should have been dismissed without prejudice. He contends that the general

rule is that charges should be dismissed with prejudice and that the court placed undue emphasis on the lack of prejudice to defendant’s ability to prepare his case.

II. Discussion

A. Construction of Section 3161(d)(1)

Section 3161(d)(1), rather than section 3161(h)(6), is applicable when a complaint, as distinguished from an indictment, is dismissed by the government and an indictment is later filed. United States v. Krynicki, 689 F.2d 289, 292 (1st Cir.1982); United States v. Peters, 587 F.2d 1267, 1273 (D.C. Cir.1978); Comm. on Administration of the Criminal Law of the Judicial Conference, Guidelines to the Administration of the Speedy Trial Act of 1974 as Amended (Dec., 1979), revised Aug. 1981, at 15-16.

The meaning of section 3161(d)(1) is not apparent at first glance: “If ... any charge contained in a complaint ... is dismissed ..., and thereafter . .. [an] indictment is filed ... based on the same conduct ..., the provisions of [subsections 3161(b) and (c)] shall [apply to] such subsequent ... indictment .... ” The section can be read to require that indictments filed after the dismissal of initial charges must be returned within thirty days of the original arrest. This interpretation, however, must be incorrect. First, such an interpretation makes section 3161(d)(1) mere surplusage because section 3161(b) already performs that function (if one disregards the actual meaning of section 3161(d)(1)). Second, this interpretation renders the Speedy Trial Act inconsistent with traditional speedy trial guarantees, which focus on pending criminal proceedings. See United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696 (1982) (holding that Sixth Amendment speedy trial guarantee is inap-' plicable to period between dismissal of military charge and indictment on civilian charge). Third, this interpretation contradicts the legislative history of the Speedy Trial Act.

S.Rep. No. 93-1021, 93d Cong., 2d Sess. 33 (1974), reprinted in A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974 78-79 (1980) (footnote added). Therefore, the correct interpretation of section 3161(d)(1) is that after the dismissal of a complaint, the Act’s time limits run anew from the date of the filing of the subsequent complaint or indictment. United States v. Krynicki, 689 F.2d at 293; United States v. Abernathy, 688 F.2d 576, 580 (8th Cir.1982); Frase, The Speedy Trial Act of 1974, 43 U.Chi.L.Rev. 667, 696 (1976).9

This court, however, has questioned in dictum whether section 3161(d)(1) applies when the complaint is dismissed after the time period for indictment has expired.

United States v. Peters, 587 F.2d at 1273 (footnote added).11 The Senate Report referred to in. the above quotation expressed concern that section 3161(d)(1) might be used to evade the speedy trial time limits of the Act. S.Rep. No. 93-1021, supra, at 33, reprinted in A. Partridge, supra, at 79.

On the other hand, the broad language of several cases indicates that section 3161(d)(1) applies even if the complaint is dismissed after the time period for indictment has expired.

United States v. Belleville, 505 F.Supp. 1083, 1084 (E.D.Mich.1981) (emphasis added). In United States v. Krynicki, 689 F.2d at 293, the court held that “§ 3161(b) applies only where, at the time of indictment, the charge upon which a defendant was arrested and upon which a complaint was issued is still pending.” Similar language is used in United States v. Abernathy, 688 F.2d at 580, and United States v. Jones, 676 F.2d 327, 330 (8th Cir.1982).

We find neither the language in Peters nor the language in Belleville and Krynicki decisive. The statement in Peters is dictum, and Peters has been criticized for relying on a Senate Report12 prepared when the draft of the Act13 did not permit re-prosecution where the earlier dismissal had been based on speedy trial grounds. See United States v. Abernathy, 688 F.2d at 579-80. The final version of the Speedy Trial Act clearly allows reprosecution after dismissal without prejudice for violations of the Act, see section 3162(a),14 yet Peters discusses indictment after dismissal on

speedy trial grounds as though it were impermissible. See United States v. Peters, 587 F.2d at 1273. Likewise, neither Belle-ville, Krynicki, Abernathy, nor Jones involved the dismissal of a complaint after the time period for indictment had elapsed. As applied to the present case, the broad language in those cases is dicta because the courts making the statements may not have considered the present fact situation.

In contrast to Belleville and the others, two cases have involved the dismissal of a complaint after the thirty-day period for indictment had expired. In United States v. Ford, 532 F.Supp. 352 (D.D.C.1981), the defendant was arrested on June 21, 1981, and charged in a complaint the next day. The complaint was dismissed on July 27, thirty-five days after charges were filed, upon motion of the government. The defendant was indicted on September 11, eighty-one days after charges were filed. Without discussing section 3161(d)(1), the court held that dismissal of an indictment is mandatory when the time period of section 3161(b) is exceeded. Id. at 353. In United States v. Caparella, 542 F.Supp. 826 (E.D.N. Y.1982), the defendant was arrested and arraigned on June 10, 1981. On July 31, fifty-one days after the arrest, the magistrate dismissed the complaint on the government’s ex parte motion, without specifying whether the dismissal was with or without prejudice. On September 16 the government filed an information against the defendant. The defendant moved to dismiss the information because the government had failed to dismiss the complaint within thirty days of his arrest. Implicitly recognizing that dismissing a complaint beyond the period for indictment does not always require the dismissal of a subsequently filed indictment, the court remanded the case to the magistrate for a determination of whether the complaint should have been dismissed with or without prejudice. Id. at 828-29.

We find the approach of the court in Caparella and of the trial court in the present case convincing. When a complaint is dismissed after the thirty-day period for indictment has elapsed, and there is no determination whether the dismissal is with or without prejudice, a subsequently filed indictment should be dismissed only if the complaint should have been dismissed with prejudice. This approach presents no advantage to the government for winning the race to dismiss the complaint and then filing an indictment. If the complaint is dismissed on the government’s ex parte motion, the defendant can later compel a determination of his speedy trial rights,15 which will in no way be prejudiced by the government’s dismissal of the complaint. Under the broad language of Belleville, however, the government’s winning the race would render the untimely dismissal of the complaint irrelevant. Similarly, the approach of Caparella and of the trial court precludes the defendant from gaining an advantage by waiting until after his indictment before bringing his speedy trial motion, and thereby imposing on the government the burden of reindictment if the charges are dismissed without prejudice. Under the trial court’s approach, the indictment is dismissed only if the complaint should have been dismissed with prejudice. Cf. United States v. Cameron, 510 F.Supp. 645, 650-51 (D.Md.1981) (recognizing that where reindictment is inevitable, dismissing the indictment without prejudice on speedy trial grounds is a “useless act” and “harmful to the United States in terms of the

expense and inconvenience in presenting the matter anew before the Grand Jury and recommencing the entire pretrial process”). Dismissal of the complaint after the period for indictment should not always bar re-prosecution, as was implied in Peters, nor should the untimely dismissal of a complaint always be irrelevant, as was stated in Belleville. Under the approach of Caparella and the trial court in the instant case, the speedy trial issue is addressed just as it would have been if the issue had been raised when the government dismissed the complaint. This approach does not open a loophole through which the government may evade the Act’s speedy trial time limits as was feared in Peters. Rather, it preserves the Act’s scheme of time limits and employs the Act’s balancing test to determine whether the complaint should have been dismissed with or without prejudice.

B. Application of Section 3162(a)(1)

After deciding that it had to determine whether the complaint should have been dismissed with or without prejudice, the trial court considered the three factors listed in section 3162(a)(1), as well as other factors. The court found that defendant’s crime was relatively serious, that the government’s exceeding the time limit was unintentional and is unlikely to recur, that the delay beyond the time limit was short, and that defendant suffered little prejudice. Weighing these factors, the court found that the complaint should have been dismissed without prejudice.

Section 3162(a)(1) makes it clear that the trial court has discretion to dismiss the complaint with or without prejudice and that the court may consider factors other than the ones listed in the section: “In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors .. .. ” See United States v. Brainer, 691 F.2d 691, 699 (4th Cir.1982) (recognizing that the district court has discretion to dismiss with or without prejudice); Frase, supra, at 705. But see United States v. Iaquinta, 515 F.Supp. 708, 712 (N.D.W.Va. 1981) (stating that dismissal without prejudice should be granted only in rare instances), rev’d on other grounds, 674 F.2d 260 (4th Cir.1982). Prejudice to the defendant is one of the factors that the district court may consider. 120 Cong.Rec. 41,794-95 (1974) (colloquy between Rep. Dennis and Rep. Cohen); Frase, supra, at 705. In the present case the trial court did not place undue emphasis on the lack of prejudice to defendant, but rather weighed this factor along with the others. Also, the court did not err in using the punishment prescribed by statute for possessing stolen mail matter as a measure of the severity of the crime. The trial court properly exercised its discretion in identifying and weighing the various factors and in determining that the complaint should have been dismissed without prejudice.

III. Conclusion

The district court correctly interpreted section 3161(d)(1) not to apply when the complaint has been dismissed more than thirty days after arrest and the dismissal would have been with prejudice if the issue had been addressed. The court then properly exercised its discretion in determining that the complaint should have been dismissed without prejudice and, therefore, correctly denied the motion to dismiss the indictment. Accordingly, the judgment of the district court is