is no evidence of bad faith or a pattern of neglect by the government; and the defendant has not demonstrated prejudice. Hernandez, 863 F.2d at 244. Thus, under circumstances such as those of this case, Hernandez precludes dismissal with prejudice predicated on solicitude for the integrity of the Speedy Trial Act. In this same regard, the Second Circuit has held that the administration of justice is not adversely affected by a reprosecution after dismissal without prejudice "where the violation of the Act was unintentional and the resulting delay was not overly long, and where [the defendant] has not presented evidence of prejudice . . . ." Simmons, 786 F.2d at 486. Thus, under Hernandez and under Simmons, both aspects of the third statutory factor direct the court to dismissal of count one without prejudice.
On the whole, then, the seriousness of the offense with which Cortinas is charged, the facts and the circumstances that led to the delay, and the effects of a reprosecution on the administration of the Speedy Trial Act and on the administration of justice all but dictate that this court, in its discretion, dismiss count one of the indictment without prejudice. For these reasons, the court will dismiss count one of the indictment without prejudice.
Finally, the defendant argues that the court should dismiss not only the first count of the indictment but the second count as well. This position is, at the least, inconsistent with the text of Section 3162(a)(1) which provides that a failure to file an indictment within the time required by Section 3161(b) mandates dismissal of "such charge . . . contained in [the] complaint . . . ." The Second Circuit has construed this language literally: Section 3162(a)(1) provides for the dismissal only of the charges against the defendant that are a actually set forth in the complaint referred to in that statute. United States v. Napolitano, 761 F.2d 135, 137 (2d Cir.), cert. denied, 474 U.S. 842, 88 L. Ed. 2d 106, 106 S. Ct. 129 (1985). In this case, only the first count -- conspiracy to distribute and to possess -- was contained in the complaint against the defendant; the second count of the indictment -- substantive possession -- was not in the complaint. Thus, regardless of the fact that these two counts arose out of the same criminal transaction and regardless of the fact that they were known or reasonably could have been known at the time the complaint was filed, these two counts were not both contained in the complaint -- and that fact alone is dispositive. Id.
Although the defendant is correct that case law in other circuits has established that a count not otherwise subject to dismissal under the Speedy Trial Act may be dismissed if it simply "gilds" a count that must be dismissed id. at 138, that doctrine is inapplicable here. Conspiracy to distribute and to possess illegal drugs is a charge that is entirely distinct from a substantive possession charge; as such, one will survive the dismissal of the other on speedy trial grounds. Cf. United States v. Badr, 604 F. Supp. 569, 580 (E.D.N.Y. 1985) (conspiracy to distribute and to possess and substantive possession not same "charge" for purposes of Section 3162(a)(1)). The cases cited by the defendant are inapposite: United States v. Oliver, 683 F. Supp. 35 (E.D.N.Y. 1988), refused to apply the "gilding" test; and United States v. Bilotta, 645 F. Supp. 369, 371-72 (E.D.N.Y. 1986), aff'd, 835 F.2d 1430 (1987), simply found that conspiracy counts in a superseding indictment were mere restatements of conspiracy counts in an earlier version of the indictment. Thus, there is no basis for dismissal of count two of the indictment against Cortinas.
For the reasons indicated above, the court hereby dismisses the first count of the indictment without prejudice.
Dated: Brooklyn, New York
February 28, 1992
I. Leo Glasser, U.S. D. J.
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