The opinion of the court was delivered by: TENNEY
By Notice of Motion filed November 11, 1977, defendant Donald Hillegas seeks an order of this Court that this indictment against him be dismissed pursuant to the Plan for Prompt Disposition of Criminal Cases of the United States District Court for the Southern District of New York ("Speedy Trial Plan" or "Plan") and the Fifth and Sixth Amendments to the United States Constitution. The defendant contends that the time limits of the Speedy Trial Plan have been exceeded and that his constitutional speedy trial rights have been violated. Because the Court concludes that the time limits of the Plan have been unnecessarily exceeded, the motion is granted and the indictment is dismissed with prejudice.
The events with which this indictment is concerned took place in April of 1974. On April 16 of that year agents of the Drug Enforcement Administration ("DEA") made two sets of arrests. At 7:00 p.m. they arrested Marc Fisher, Kenneth Meyerson and Richard Hamilton in a Greenwich Village restaurant and seized 2,000 doses of LSD. Meyerson agreed to cooperate by introducing the agents to his source and arranged a meeting for later that evening at another Village restaurant. At 11:20, Meyerson, together with an undercover agent, met with Fredric Glenn and Adolph Rivera, and a sale of 5,000 doses of LSD took place, after which Glenn and Rivera were arrested. The following day, April 17, Glenn and Rivera independently told an Assistant United States Attorney that the defendant in this case, Donald Hillegas, was the source of the LSD. On the same day, a complaint was filed against the five arrestees, but did not name Hillegas.
Thereafter, the authorities began to search for Hillegas, but were initially unsuccessful. However, on April 23, 1974, Hillegas, having learned that he was being sought, voluntarily surrendered at the offices of the DEA. He was taken to the United States Attorney's Office, where he was briefly interviewed. The complaint previously prepared for the five individuals arrested on April 16 was amended to add Hillegas,
and Hillegas appeared before the Magistrate, who fixed bail at $5,000 personal recognizance bond to be secured by $500. Hillegas was released upon deposit of cash security, and the case was set down for preliminary examination on May 14, 1974. That examination was adjourned two weeks; the entry for May 28, 1974 on the Magistrate's Criminal Calendar states that the complaint was "dismissed," a fact which neither the Government nor the defendant has called to the Court's attention.
On July 18, 1974, indictment 74 Cr. 675 was handed down against Fisher, Meyerson, Glenn and Rivera, charging both conspiracy and various substantive counts of distribution and possession of LSD with intent to distribute. Hillegas was not named in the indictment. On July 13, 1974, the Assistant United States Attorney submitted to the Magistrate a "dismissal slip" recommending the dismissal of the complaint against Hillegas, a somewhat curious request considering the entry on the Magistrate's Calendar of some six and one-half weeks earlier. In any event, it would appear that at some time between late-May and mid-July the Government decided not to prosecute Hillegas any further. It is alleged that this decision was based on the unavailability as witnesses of Glenn and Rivera, the two individuals closest to Hillegas, their alleged "source." The Government explains:
"Between the arrest of Hillegas and the indictment of Fisher, Meyerson, Glenn and Rivera, Assistant United States Attorney Nesland learned that Glenn and Rivera had decided to litigate their guilt or innocence. Glenn and Rivera thus could not give testimony at a trial of Hillegas, for in doing so that they would inevitably provide damaging evidence of their own guilt. Since the out-of-court post-arrest statements of Glenn and Rivera were inadmissible, Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968); cf. Krulewitch v. United States, 336 U.S. 440, 93 L. Ed. 790, 69 S. Ct. 716 (1949), without the testimony of Glenn and Rivera, the Government could not even make out a prima facie case against Hillegas. . . ." Government Memorandum 6.
The history of the prosecution of Indictment 74 Cr. 675 is long and circuitous and need not be set out in detail here. With respect to Glenn and Rivera, the two individuals whose testimony the Government alleges was essential to any case against Hillegas, the prosecution was drawn out over the next two years. Glenn ultimately pled guilty on October 6, 1975 to two of the four counts with which he was charged; he was sentenced on January 6, 1976, at which time the remaining two counts were dismissed. On July 30, 1976, the Government received authorization from the Department of Justice to seek an order of immunity for Glenn pursuant to 18 U.S.C. §§ 6002-03. Rivera, after lengthy litigation of his motions to suppress evidence, ultimately pled guilty to one count of the indictment on October 18, 1976 and was sentenced on November 18, 1976.
In October 1977, some 21 months after Glenn was sentenced, 14 months after the Government received authorization to seek an immunity order for Glenn and 11 months after Rivera was sentenced, the Government took its case against Hillegas to the grand jury. Rivera testified on October 14, Glenn on October 17 and the agent who arrested them on October 18. The indictment currently under consideration was filed on October 21, 1977; Hillegas was arraigned on October 27 and entered a plea of not guilty. The case was assigned to this Court, and the Government filed a notice of readiness for trial on November 21, 1977.
In his motion to dismiss, the defendant relies primarily on the time limits contained in this district's Speedy Trial Plan. Section 3(a) of the Speedy Trial Plan provides in pertinent part:
" 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."
Section 7 further provides:
"Notwithstanding any longer time periods that may be permitted under sections 3, 4, and 5, in all cases the government must be ready for trial within six months ...