The opinion of the court was delivered by: FREDERICK J. SCULLIN, JR.
In this action, a grand jury has charged defendant Elias Nesheiwat with one count of making a false statement to the United States in violation of 18 U.S.C. § 1001 and one count of perjury in violation of 18 U.S.C. § 1623. In letter-briefs submitted to the court, both the Government and the defendant have agreed that more than 70 non-excludable days have passed from the date of arraignment and, therefore, this action must be dismissed under the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). The remaining question is whether the court should dismiss this action with or without prejudice.
In the Speedy Trial Act (the "statute"), Congress specified three factors which a court must consider in deciding whether to dismiss an action with or without prejudice. These are (1) the seriousness of the offense; (2) the facts and circumstances which led to the dismissal; and (3) the impact of a reprosecution on the administration of the Act and on the administration of justice. 18 U.S.C. § 3162(a)(2). The Supreme Court added prejudice to the defendant as a fourth factor to this trio in United States v. Taylor, 487 U.S. 326, 334, 108 S. Ct. 2413, 2418, 101 L. Ed. 2d 297 (1988) ("Taylor").
II. THE SPEEDY TRIAL ACT CALCULUS
A. Seriousness of the Charges
Plainly, any indictment charging a person with the commission of any crime is a serious matter. However, within the realm of crimes, those with which the defendant is charged are not very serious. Therefore, this factor weighs in favor of dismissal with prejudice.
B. The Facts and Circumstances Leading to Dismissal
The parties next appeared before the court on October 28, 1993. On that date, the court held a status conference at which defendant's counsel stated his intention to file a motion to suppress evidence. However, this did not constitute an excludable event within the meaning of the Act.
Defendant's counsel actually filed his motion to suppress on November 15, 1993 and the court conducted an evidentiary hearing on that motion on December 21, 1993. Thirty days after that date, the speedy trial clock once again began to run. The parties made no further effort to exclude time under the clock and the seventy day period expired on January 30, 1994.
The court bears some responsibility for the expiration of the seventy day clock. While sixty-one days had expired on the clock by the time the defendant filed his motion, had the court decided the pending motion within the thirty day period which may be excluded pursuant to 18 U.S.C. § 3161(h)(1)(F), or shortly thereafter, the clock may not have expired prior to a trial.
However, in this circuit, "in the absence of a factually supported finding of bad faith or a pattern of neglect by the local United States Attorney, an "isolated unwitting violation' of the Speedy Trial Act cannot support a decision to dismiss with prejudice." United States v. Hernandez, 863 F.2d 239, 244 (2d Cir. 1988) ("Hernandez") quoting Taylor, 487 U.S. at 339, 108 S. Ct. at 2421. ...