MEMORANDUM OPINION OF CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
This case is before the Court on the Defendant's Motion to Dismiss for a violation of the Speedy Trial Act and the Government's Opposition. Defendant Leslie M. James contends that the Government's delay of 18 months in bringing the Indictment against the Defendant violates the Speedy Trial Act's 30-day time limitation. The Government responds that the original Criminal Complaint before the United States Magistrate Judge of this Court against the Defendant has been dismissed, and that the present Grand Jury Indictment was brought within the time limits of the Speedy Trial Act. Because the Court finds that the Government's initial Criminal Complaint was not properly dismissed and that the present Indictment has therefore been brought substantially beyond the time limits of the Speedy Trial Act, the Court must grant the Defendant's Motion and dismiss this case, with prejudice.
On October 16, 1992, the Government filed a Criminal Complaint against the Defendant in Cr. No. 92-776M, charging the Defendant with possession with the intent to distribute crack cocaine in violation of 21 U.S.C. § 841. The affidavit which supported the Defendant's arrest warrant also alleged that the Defendant was in possession of firearms and a large sum of cash, but he was not charged with any weapons offenses. On November 18, 1992, the Defendant was arrested pursuant to the arrest warrant, and after entering an initial appearance, was ordered to be detained in a District of Columbia half-way house. On December 12, 1992, at the Defendant's preliminary hearing, the Defendant executed a 30-day waiver of the Speedy Trial Act, and United States Magistrate Judge Patrick J. Attridge ordered that 30 days not be counted for Speedy Trial purposes in the time needed to secure an Indictment.
On January 19, 1993, the Government filed a pleading entitled "Dismissal," whereby the Government directed the Clerk of this Court to dismiss the Complaint against the Defendant without otherwise securing leave of the Court. See Def.'s Exh. 3, which is attached hereto and incorporated by reference herein. The pleading states in its entirety:
The Clerk of said Court will enter a dismissal of the above-captioned case, and will order the release or discharge of the [Defendant], upon this request of the United States Attorney in and for the District of Columbia, Jay B. Stephens.
(emphasis added). Significantly, no motion was made to any Court to have the Criminal Complaint dismissed, and no Judge of this Court signed any Order doing so. The Defendant was released from third-party custody on that day.
More than a year later, on June 21, 1994, the Defendant was indicted by a Grand Jury in the above-captioned case for possession with intent to distribute crack cocaine, use of a firearm during a drug related offense, criminal forfeiture, and other firearm violations, and a bench warrant was issued for the Defendant's arrest. The Defendant was then arraigned before Magistrate Judge Patrick J. Attridge on June 30, 1994 and trial was scheduled for August 29, 1994.
No other pre-trial motions have been filed in this case, except this Motion to Dismiss.
I. Prior to the enactment of the Speedy Trial Act of 1974, the Supreme Court had long held that a defendant accused of a crime had a constitutional right to a speedy trial which if abrogated would result in the dismissal of the case against such defendant with prejudice to its being refiled by the government at a later date.
The Sixth Amendment clearly states that in "all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." A defendant's Sixth Amendment right to a speedy trial attaches "only when a criminal prosecution has begun and only to those persons who have been 'accused' in the course of that prosecution." United States v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 459, 30 L. Ed. 2d 468 (1971).
Traditionally, three tenets of the American criminal justice system were considered served by the Sixth Amendment right to a speedy trial: "(1) to prevent undue and oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying public accusation and (3) to limit the possibilities that long delay will impair the ability of an accused to defend himself." United States v. Ewell, 383 U.S. 116, 120, 15 L. Ed. 2d 627, 86 S. Ct. 773 (1966).
While the right to a speedy trial is clearly established in direct Constitutional language, prior to the enactment of the Speedy Trial Act, the length of delay in bringing an Indictment or Information which would abrogate a criminally accused defendant's speedy trial rights had never conclusively been determined. Indeed, while the Supreme Court had indicated that prolonged delays without justification were suspect, on the eve of the Speedy Trial Act's enactment, the courts determined whether a defendant's speedy trial rights were violated on a case-by-case basis taking into account the factors enunciated in Ewell.
While no specific time limit was established by the courts, the right to a speedy trial was "not a theoretical or abstract right but one rooted in hard reality on need to have charges promptly exposed." Dickey v. Florida, 398 U.S. 30, 37, 26 L. Ed. 2d 26, 90 S. Ct. 1564 (1970). The right "is fundamental and the duty of the charging authority is to provide a prompt trial." Id. at 38. Of course, some delays are inherent in the judicial system as a result of crowded dockets, a lack of judges or lawyers, or other factors. Id. However, the Government could not before enactment of the Speedy Trial Act and may not now unjustifiably postpone bringing an Indictment even if the accused has been released from custody. Klopfer v. State of North Carolina, 386 U.S. 213, 214, 18 L. Ed. 2d 1, 87 S. Ct. 988 (1967).
II. The "plain meaning" of the Speedy Trial Act of 1974 dictates that the Government's prosecution of the Defendant, one and a half years after the Defendant was originally indicted, is substantially out of time and, therefore, the Government's case against the Defendant must be dismissed.
In 1974, Congress passed the Speedy Trial Act to fix a definite time after which, if it had not brought its Indictment against an accused criminal defendant, the Government would violate the defendant's speedy trial rights. 18 U.S.C. § 3161. The statute states:
(d)(1) If any indictment or information is dismissed upon motion of the defendant, or any charge contained in a complaint filed against such individuals is dismissed or otherwise dropped, and thereafter a complaint is filed against such defendant or individual charging him with same offense or an offense based on the same conduct or arising from the same criminal episode, or an information or indictment is filed charging such defendant with the same offense or an offense based on the same conduct or arising from the same criminal episode, the provisions of subsections (b) and (c) of this section shall be applicable with respect to such subsequent complaint, indictment, or information, as the case may be.
Subsection (d) is not applicable to the fact situation of this case. However, Subsection (b) states:
Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.