choose between two courts enhances temptations to delay and to forum shop.
Nevertheless, in the circumstances, the Court is not persuaded that the Act itself as construed in the Local Rule was violated by the delay here. The emphasis placed by the United States Attorney and the Local Rule on the filing of the complaint as the critical element is corroborated by the language of 18 U.S.C. § 3162 relating to sanctions for violation of the Act. That section makes no reference to arrest, and refers to the filing of a complaint charging an offense as the critical moment for commencement of the limited time available for indictment.
In addition, the Act gave each District Court substantial discretion in adopting the required implementing plan. See 18 U.S.C. § 3165. And the needs to accommodate the Act to the peculiar federal/local relationships in the District of Columbia, recognized by Congress,
give special weight to this Court's Local Rule interpreting the Act.
Furthermore, Section 3161(h)(6) of the Act and para. 4(b) of the Local Rule may be construed to permit the United States Attorney to toll the Act by dismissing a federal indictment before the expiration of the 40 day limit, and to postpone a new indictment for as long as permitted by the statute of limitations or by Rule 48(b), Fed. R. Crim. Proc. Thus, if a complaint making a federal charge had been filed September 18 and had been dismissed 39 days later on October 27, a subsequent indictment returned on November 29 (or on any date open under the statute of limitations) would not literally violate the Act. The United States Attorney, commendably sensitive to the injustice of such a construction of the statute and the rule, does not rely upon it, and neither does the Court. But the existence of this gap in the statute argues against making a stricter rule for a case originally begun by a complaint in the Superior Court than would apply to a case commenced, discontinued and reinstated here.
Finally, the interim provisions of the Act give the Court broad discretion in determining whether to dismiss the indictment because, as a practical fact, the sanctions provisions are not yet effective. Compare 18 U.S.C. § 3163(c) with 18 U.S.C. § 3162. Even if the sanctions were now effective, it would not be appropriate to dismiss this indictment, either with prejudice or without it. The defendant has not been prejudiced by delay and none of the other circumstances justifying dismissal with prejudice are present here. Dismissal without prejudice so relatively soon after the offense would be an exercise in futility. Neither the Act, Federal Rule 48(b), nor the Local Rule requires dismissal, and the Local Rule 2-7 plainly proscribes it. Accordingly, an order will be entered which DENIES the Motion to Dismiss.
UNITED STATES DISTRICT JUDGE
Dated: January 24, 1978 [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 446 F. Supp.]
On consideration of oral testimony, documentary evidence, legal memoranda, and oral argument on behalf of both parties, it is for the reasons stated in a Memorandum filed this date, by the Court this 24th day of January 1978,
ORDERED that the Court's Order from the bench on January 13, 1978 DENYING defendant's Motion to Suppress Evidence is CONFIRMED, and it is
FURTHER ORDERED that defendant's Motion to Dismiss is DENIED.
UNITED STATES DISTRICT JUDGE