The opinion of the court was delivered by: I. LEO GLASSER
GLASSER, United States District Judge:
The defendant in this criminal action seeks to dismiss both counts of the indictment against him on the ground that the indictment was filed in violation of the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq. For the reasons indicated below, count one of the indictment is dismissed without prejudice; count two of the indictment is not dismissed.
The defendant, Romeo Cortinas, was arrested on September 5, 1991 pursuant to a warrant issued by Magistrate Judge Carter. That warrant was predicated on a complaint that charged Cortinas with conspiring to distribute and to possess with intent to distribute cocaine. Memorandum of Government at 18. The complaint alleged that Cortinas had agreed to pay a coconspirator $ 1,000 to transport two kilograms of cocaine to Buffalo, New York.
At his arraignment on September 5, 1991, Magistrate Judge Caden ordered the defendant detained; the defendant, according to the government, immediately entered an application for bail. A bail package was subsequently structured and approved, and the defendant was released on September 10, 1991. Soon thereafter, Frank Handelman, counsel for Cortinas, held preliminary discussions with Mark Kirsch, the Assistant United States Attorney then assigned to the case, concerning the possible cooperation of the defendant with the government. In order to facilitate those discussions, the defendant executed a waiver of speedy indictment for the period of October 8, 1991 through October 22, 1991.
At some point before the expiration of this waiver of speedy indictment, counsel for the defendant requested information of the government regarding possible tape-recorded statements of the defendant. Apparently after some discussion, Assistant United States Attorney Kirsch agreed to permit the defendant and his attorney to listen to those tape-recordings at the office of the United States Attorney on December 2, 1991. To this end -- which apparently was viewed by both sides as integral to the possible cooperation of the defendant -- Cortinas entered into two more waivers of speedy indictment: One such waiver excluded the time from October 22, 1991 through a date in early November (the precise date is disputed by the parties); the other was in effect from the expiration of the October 22, 1991 waiver through December 6, 1991. Despite the fact that the parties dispute the end-date of the October 22, 1991 waiver -- the government places the date as November 11, 1991, and the defendant states that it was November 5, 1991 -- the government and the defendant agree that no speedy-indictment time elapsed between the end of the October 22, 1991 waiver and the beginning of the November waiver.
However, on December 4, 1991, the defendant informed the government that he would not cooperate and would not enter a plea of guilty. The government represents that, at this time, Assistant United States Attorney Kirsch was ill and was absent from his office. Because only two days remained until the expiration of the November waiver, the government secured a final waiver of speedy indictment from the defendant; that waiver was effective from December 6, 1991 until (or through -- this appears to be a matter of dispute) December 20, 1991. Assistant United States Attorney Julie Katzman appeared on behalf of the government at the execution of that waiver before Magistrate Orenstein.
The government represents that this case was reassigned from Kirsch to Katzman on December 17, 1991, and that because of a "miscommunication between [Katzman] and AUSA Kirsch, [Katzman] believed that no action was necessary on the case until early January. " Affidavit of Julie E. Katzman P15. On December 23, 1991, Katzman discovered that the last waiver of speedy indictment had expired and that the government would need additional time in which to seek an indictment. The defendant, however, refused to execute a new waiver. The government further indicates that it was unable to schedule time before a grand jury until December 27, 1991 -- at which time a true bill was voted. In the interim, the complaint against the defendant was dismissed without prejudice by Magistrate Chrein on December 26, 1991 (but the dismissal was not docketed until January 9, 1992).
The indictment presents two counts against the defendant: Count one charges that the defendant "did knowingly and intentionally conspire to possess with intent to distribute cocaine;" count two charges that he "did knowingly and intentionally possess with intent to distribute cocaine." The defendant has now moved this court to dismiss both counts of the indictment with prejudice; the government maintains that count one should be dismissed without prejudice and also that there is no basis for dismissal of count two.
Section 3161(b) of Title 18 of the United States Code provides, in relevant part:
Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served ...