arraigned after Indictment, thus parsing the post-Indictment period into two segments; (1) an Indictment-to-arraignment period of no more than thirty days and (2) an arraignment-to-trial period. See Letter in Further Support of Motion to Dismiss at 5, 6 ("Letter in Support"). However, this reading violates both the plain language of the statute and Congressional intent. The plain language of the statute does not create a 30 day Indictment-to-arraignment period. Additionally, Congress specifically rejected a parsing approach when it amended the Speedy Trial Act in 1979 and merged a previous ten day Indictment-to-arraignment period and the 60 day arraignment-to-trial period into a single 70 day Indictment-to-trial period. See 18 U.S.C. § 3161(b). See also H.R. Rep. No. 96-390, at 1 (1979), reprinted in 1979 U.S.C.C.A.N., vol. 2 at 805. This action leads to the conclusion that defendant's suggested reading of the Speedy Trial Act must be rejected. It is not within the province of this court to rewrite the plain language of the Speedy Trial Act, particularly in a manner which has been specifically rejected by Congress. See Commissioner of Internal Revenue v. Lundy, 516 U.S. 235, 116 S. Ct. 647, 656, 133 L. Ed. 2d 611 (1996) ("we are bound by the statute as it is written . . . we are not at liberty to rewrite the statute because we might deem its effects susceptible of improvement") (quotations omitted)). Rather, defendant is forced to seek a remedy for the delay in the Fifth and Sixth Amendments of the Constitution.
C. Fifth and Sixth Amendments
Dismissal of an Indictment for Fifth Amendment violations has been reserved for the rarest and most extreme cases of governmental misconduct; namely where the conduct violates that "'fundamental fairness shocking to the universal sense of justice.'" United States v. Russell, 411 U.S. 423, 432, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973) (quoting Kinsella v. United States ex rel Singleton, 361 U.S. 234, 246, 4 L. Ed. 2d 268, 80 S. Ct. 297 (1960)). See also United States v. Lovasco, 431 U.S. 783, 790, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1976) (18-month preindictment delay did not violate the Fifth Amendment because it did not offend our fundamental concept of justice). Here, Torribio has failed to demonstrate any fundamental unfairness because he has not shown that he was prejudiced by the delay.
Similarly, the delay did not violate defendant's Sixth Amendment rights. In Barker v. Wingo, 407 U.S. 514, 522, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), the Supreme Court directed a trial court to consider four factors when analyzing a motion to dismiss an Indictment on Sixth Amendment speedy trial grounds: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the speedy trial right, and (4) prejudice to the defendant. The Supreme Court further stated that "the length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Id. at 530. The 32 day post-Indictment delay is not "presumptively prejudicial," particularly because it has not caused a violation of the defendant's right to a trial within the time limits specified by the Speedy Trial act.
While defendant's motion to dismiss the Indictment must be denied, the court does not condone the government's apparent indifference to the requirements of Rule 9(c)(1). The 32 day delay in this case clearly violated Rule 9(c)(1) and the only explanation for the delay is government oversight. We all have a right to expect more care from our prosecuting officials. The court firmly believes that such delays are not likely to occur again.
Accordingly, the defendant's motion to dismiss the Indictment is denied.
Shira A. Scheindlin
Dated: New York, New York
October 28, 1997