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UNITED STATES v. LA CRUZ

November 23, 1977

UNITED STATES OF AMERICA,
v.
JOSEPH LA CRUZ, Defendant


Gagliardi, D.J.


The opinion of the court was delivered by: GAGLIARDI

MEMORANDUM DECISION

GAGLIARDI, D.J.

 Defendant Joseph LaCruz is charged with violations of the federal narcotics laws. Count One of the indictment charges defendant with conspiracy to distribute, and to possess with intent to distribute, unknown quantities of an unnamed Schedule II narcotic drug in violation of 21 U.S.C. § 846. Count Two charges him with possession with intent to distribute three ounces of cocaine, a Schedule II drug, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). Defendant has made several pre-trial motions including, inter alia, an application for an order dismissing the indictment pursuant to the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-74, and the Southern District of New York Plan for Prompt Disposition of Criminal Cases ("Southern District Plan" or "the Plan"). For the reasons set forth below, the motion to dismiss the indictment is granted.

 Facts

 LaCruz was arrested on March 7, 1977 and arraigned before a magistrate on March 8, 1977 on a complaint charging him with the distribution, and possession with intent to distribute, of 1/8 kilogram of cocaine. Defendant, who was represented by counsel at the arraignment, was released on bail. The magistrate set April 4, 1977 as the date for the preliminary hearing.

 The preliminary hearing was never held. The Assistant United States Attorney, in her supplemental affidavit in opposition to defendant's instant motion, states that at the time of the arrest, the United States Attorney was in the midst of lengthy discussions with Sterling Johnson, Jr., the Special Narcotics Prosecutor for the City of New York, concerning which of the two offices was to be primarily responsible for the prosecution of street-level narcotics cases. By letter dated March 22, 1977, the United States Attorney declined federal prosecution of the defendant and an alleged co-conspirator Paul Bagala in favor of action by the Special Narcotics Prosecutor's office and forwarded defendant's case file to that office. By letter dated March 28, 1977, however, Mr. Johnson declined prosecution as well. Inadvertently, his office retained the case file.

 The Government's attention then shifted to Bagala, who had been arrested with LaCruz and had begun cooperating with the Government on the prosecution of other violations of the narcotics laws. The LaCruz file was finally located in the Special Narcotics Prosecutor's office in August, 1977. The present indictment, 77 Cr. 654, including both the conspiracy and possession charges, was filed on September 2, 1977, and LaCruz, appearing without counsel, was arraigned on it on September 8, 1977. The Legal Aid Society was assigned to represent the defendant four days later. At a pre-trial conference on September 23, 1977, the Government indicated its readiness to proceed to trial, although to date no notice of readiness has actually been filed with the court. Defendant subsequently discharged his Legal Aid Society counsel and retained his present counsel on September 29, 1977. The instant motions were filed soon thereafter.

 Defendant contends that both the Speedy Trial Act and the Southern District Plan have been violated in two respects: 1) the Government's failure to file the indictment within 60 days of arrest, as required by 18 U.S.C. § 3161(b), (f) and § 3(a)(2) of the Plan; and 2) the Government's failure to be ready for trial within six months of his arrest, as required by § 7 of the Plan. The Government concedes that both the Act and the Plan have been violated, but only insofar as the indictment was not filed within 60 days of LaCruz's arrest. It argues that because certain periods of time must be excluded from the computation of the six-month ready for trial period under the Plan, that provision has not been violated. The Government maintains, moreover, that dismissal of the indictment is a discretionary sanction which this court ought not invoke on the facts of this case.

 The Speedy Trial Act as yet provides no sanctions for its violation because the Act is still in its "phase-in" period. United States v. Carini, 562 F.2d 144 (2d Cir. 1977); see 18 U.S.C. § 3163(c) (Supp. V, 1975). Consequently, the defendant cannot rely on its provisions to require dismissal of the indictment. Nevertheless, "the federal courts have long had the power to dismiss indictments for inexcusable delay by the government in prosecution," United States v. Furey, 514 F.2d 1098, 1102 (2d Cir. 1975). Since 1971, the district courts of this Circuit have adopted a series of plans, all of which have provided for the dismissal of indictments under certain circumstances. See generally United States v. Salzmann, 417 F. Supp. 1139, 1148-51 (E.D.N.Y. 1976) (detailing the basic provisions of each of the plans). The holding of Carini that the Act as yet mandates no sanctions for non-compliance does not alter this court's authority to dismiss under the Southern District Plan because the parties in that case did not raise, and the Court did not consider, the issue of the Government's failure to comply with the applicable plan. United States v. Carini, supra, at n.1. The Court noted, moreover, that "the requirements of [the plan] must be followed strictly." Id., citing United States v. McDonough, 504 F.2d 67 (2d Cir. 1974) (per curiam) and United States v. Flores, 501 F.2d 1356 (2d Cir. 1974) (per curiam). The terms of the Southern District Plan became effective on July 1, 1976, and defendant was arrested in March, 1977. Whether this court must dismiss the indictment, or may do so in the exercise of discretion, is thus governed by the terms of the Southern District Plan.

 Violations of the Plan

 Defendant correctly asserts that two distinct sections of the plan have been violated. Section 3 provides in pertinent part:

 
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 ...

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