The opinion of the court was delivered by: PIERCE
MEMORANDUM AND ORDER (January 26, 1977)
Each of the three defendants in this prosecution alleging violations of the federal narcotics laws moves to dismiss the indictment for the alleged failure of the government to comply with the indictment and notice of readiness time requirements of the Southern District of New York Plan for Prompt Disposition of Criminal Cases, promulgated pursuant to the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-74. For the reasons that follow, the motions by Angel and Gladys Lopez are granted and the Court reserves decision on the motion of Jacqueline Lindsley.
According to the government, on March 10, 1976, Kiernan Kobell, an undercover agent of the Drug Enforcement Administration, met defendant Lindsley in a Manhattan bar, where Lindsley allegedly offered to sell Kobell one ounce of cocaine. On March 31, 1976, Kobell and Lindsley drove to a location nearby the apartment house occupied by Angel and Gladys Lopez. Kobell states that he gave Lindsley $1500 in marked bills as the purchase price for the cocaine and that Lindsley entered the apartment house and returned to the car shortly thereafter with the cocaine. Lindsley was thereupon arrested and taken into custody by DEA agents. While in custody, Lindsley entered into a waiver of arraignment upon the agent's statements that if she cooperated with the government, she might not be required to testify against other targets of the investigation, and the fact of her cooperation would be kept secret. Lindsley alleges that the agents told her she did not need to retain counsel and that if she cooperated, she would be free from prosecution; while the Court need not accept that statement as true for purposes of these motions, it is undisputed that the waiver of arraignment was entered into without the advice of counsel.
Lindsley was released that same evening and in the hours following transmitted to the DEA agents information which led to the issuance of a search warrant for certain amounts of cocaine and currency, believed to be derived from the sales of drugs, said to have been located in the Lopez' apartment. During the early hours of April 1, 1976 the warrant was executed, and the DEA agents seized from the Lopez' apartment certain items of narcotics, narcotics paraphernalia, and some eight thousand dollars in cash, including the $1,500 in marked currency delivered to Lindsley by Kobell the night before. Defendants Angel and Gladys Lopez were taken into custody, and a criminal complaint filed against them charging violations of 21 U.S.C. §§ 812 and 841. On the same day, April 1, 1976, the Lopez' were arraigned on the criminal complaint before Magistrate Raby of this Court. No criminal complaint was ever filed against Lindsley.
On April 5, 1976, the government moved to dismiss the criminal complaint against the Lopez defendants and that motion was granted. The reason for this action was stated by the prosecutor in his affidavit filed in opposition to Lindsley's motion:
"It was determined within our office that for the safety of Lindsley, her cooperation must remain confidential and, further, that the immediate prosecution of this case would compromise that confidentiality. Thus, the Lopez' complaint was dismissed solely for the purpose of protecting Lindsley and the confidentiality of her status as a Government informant."
Thereafter, the government continued its efforts to obtain further information from Lindsley concerning her drug sources. The Lopez defendants assert that they believed that the matter was closed; indeed, following the dismissal of the complaint against them their counsel made several attempts to obtain the release of the $8,000 from the federal agents and from the prosecutor. Finally, in October, 1976, Lopez' counsel instituted a civil action in this court to recover the funds, naming the prosecutor and other federal officers as party defendants. On November 8, 1976, the instant indictment was filed, charging the three defendants with both conspiracy and substantive violations of 18 U.S.C. §§ 812 and 841. The indictment charges that the period of the conspiracy continued up until March 31, 1976, and none of the counts allege any acts by any defendants after that date.
On November 18, 1976, the Lopez defendants were arraigned on the indictment and a bench warrant issued for Lindsley. On or about December 1, 1976, Lindsley was taken into custody and arraigned before a Magistrate. On December 9, 1976, this Court set the matter down for trial on January 31, 1977. Defendants moved to dismiss on December 20 (Lopez') and 29, (Lindsley), 1976, and the motions were made returnable January 20 and 26 by consent of the parties. On December 29, 1976, the government filed its notice of readiness for trial.
While defendants in criminal cases increasingly have sought to avail themselves of the opportunity to move to dismiss indictments for claimed violations of the Speedy Trial Plan, the purpose of the Plan is not solely to insure the prompt disposition of criminal cases in order to protect the rights of those charged with crimes; the Plan is also intended to protect the public's interest in having criminal matters promptly resolved. See Statement of the Circuit Council, Second Circuit Rules for the Prompt Disposition of Criminal Cases, quoted in United States v. Beberfeld, 408 F. Supp. 1119 (S.D.N.Y.1976); see also United States v. Flores, 501 F.2d 1356, 1360 n. 4 (2d Cir. 1974) ("the Plan was not established primarily to safeguard defendants' rights."). While the Statement of the Circuit Council was issued in connection with the Plan adopted by the Southern District on April 1, 1973, the same interests are reflected by the text of the Speedy Trial Act of 1974, see 18 U.S.C. § 3162(a)(2), and by the current Southern District Plan adopted to implement the Act.
Since the Plan is directed specifically at the prosecutor and the court, if the court finds that the provisions of the Plan have been violated, and that there are no exceptional circumstances warranting prolonged delay, the indictment must be dismissed with prejudice unless the Court finds that the delay was due to excusable neglect on the part of the prosecutor. See Rule 11 of the Plan; Hilbert v. Dooling, 476 F.2d 355 (2d Cir. 1973) (en banc). In this inquiry the Court must also consider the factors set forth in the Speedy Trial Act itself, 18 U.S.C. § 3162(a)(2).
Rule 4 of the Statement of Time Limits and Procedures ("the Plan") provides in pertinent part as follows:
"If an individual is arrested or served with a summons and the complaint charges an offense to be prosecuted in this district, any indictment or information subsequently filed in connection with such charge shall be filed within the following time limits:
(1) If the arrest or service occurs before July 1, 1976, within 60 days of July 1, ...