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UNITED STATES v. KOCH

October 7, 1977

UNITED STATES OF AMERICA,
v.
MARTIN KOCH, Defendant


Brieant, J.


The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

Brieant, J.

 By an oral motion to dismiss this indictment with prejudice, as untimely and "violative of the Speedy Trial Act, 18 U.S.C. § 3161, et seq. ", defendant tenders the issue of post-arrest/pre-indictment delay in this case.

 The Speedy Trial Act itself as yet provides no sanctions for its violation, since we are now in what is euphemistically called the "phase-in period." See generally, United States v. Carini, 562 F.2d 144 (2d Cir., 1977). Our determination of this motion is therefore regulated by the "Plan for Prompt Disposition of Criminal Cases" (hereinafter the "Plan"), adopted by this District Court, approved June 22, 1976, effective July 1, 1976.

 The Plan, para. 3 thereof, provides in relevant part as follows:

 
"3. Time Within Which an Indictment or Information Must Be Filed.
 
(a) Time Limits. 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, 1976."

 The Plan speaks in mandatory terms. But the provision relating to sanctions, with an exception not relevant, provides as follows [para. 11(e)]:

 
"[Failure] to comply with the time limits prescribed herein shall not require dismissal of the prosecution. The court retains the power to dismiss a case for unnecessary delay pursuant to rule 48(b) of the Federal Rules of Criminal Procedure."

 In Carini, supra, several factors are mentioned which "should generally be considered," in dealing with the question of what should be done when the express commands of the Plan are violated. These are (1) the length of the delay; (2) the reason for the delay; (3) whether and when the defendant has asserted his right to a speedy trial; and (4) the prejudice resulting to the defendant from the delay. To these four we venture to add additional factors. As a fifth: for every right there must be a meaningful remedy; as a sixth: the seriousness of the crime; and seventh: the foreseeable impact of a decision to dismiss or not on society generally, and the administration of justice.

 The facts applicable to movant are not in dispute. On November 4, 1975, a postal inspector swore to a complaint before a United States Magistrate in this District charging Martin Koch with violation of 15 U.S.C. § 1644. The relevant portion of that complaint is compared below with the indictment herein, showing that they each charge the defendant with the same crime: The Complaint The Indictment Filed Nov. 4, 1975 Filed Aug. 26, 1977 On or about July 18, 1975, On or about July 18, and in the Southern District July 21, 1975, in the Southern of New York, MARTIN District of New York, KOCH, the defendant, unlawfully, MARTIN KOCH, the defendant, wilfully and knowingly, unlawfully, wilfully in a transaction affecting and knowingly, in a interstate and foreign transaction affecting interstate commerce, did attempt and foreign commerce, to use an altered, forged, did use and attempt to use lost, stolen and fraudulently an altered, forged, lost, obtained credit card, to stolen and fraudulently obtained wit, Pan American Airlines credit card, to wit, Travel Card No. 1026 06706 Pan American Airlines Travel 261774 to obtain goods and Card No. 1026 06706 services, to wit, airline tickets, 261774 to obtain goods, services, having a retail value and things of value, to aggregating $1,110.30. wit, airline tickets, which had a value aggregating more than $1,000.00.

 The verified complaint contained detailed supporting information showing probable cause. An arrest warrant was issued on November 4, 1975, and Koch was arrested on February 12, 1976. He was arraigned that day, counsel was assigned to the case, and a preliminary examination before the Magistrate was scheduled for March 3, 1976. Apparently, no proceedings were held on that date.

 Under date of March 19, 1976, an Assistant United States Attorney filed a "Memorandum to the United States Magistrate" which reads simply as follows: "Please dismiss the complaint in the case of United States v. Martin Koch on my ...


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