The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
In a one-count Indictment, the Government charges Defendant with conspiracy to distribute and possess with the intent to distribute more than twenty-five grams of cocaine and more than fifty grams of cocaine base (crack).
Currently before the Court is Defendant's motion to dismiss the Indictment due to the Government's alleged failure to timely prosecute him, based on the Speedy Trial Act, the Due Process Clause of the Fifth Amendment, and the Speedy Trial Clause of the Sixth Amendment. Moreover, Defendant requests that the Court review Magistrate Judge Homer's prior dismissal of the original criminal complaint "without prejudice" pursuant to 18 U.S.C. § 3162(a)(2).
In February and March of 2000, the Drug Enforcement Administration used an informant to purchase cocaine from Defendant and his supplier. Following these transactions, the Government executed a search warrant in May 2000, at Defendant's residence, where they seized cocaine.
The Government filed the original complaint charging Defendant with distribution of crack cocaine on May 2, 2000; however, the parties entered into negotiations because Defendant cooperated in a "de-briefing" with law enforcement agents on July 10, 2000. During this period, more than thirty days of non-excludable Speedy Trial Act time elapsed without return of an indictment. Therefore, the Government moved to dismiss the complaint, and Magistrate Judge Homer granted its motion "without prejudice" on August 14, 2001.
As the statute of limitations approached, a grand jury returned the present Indictment on June 30, 2004. After locating Defendant, the Government notified him of the charges and allowed him to appear in federal court on December 6, 2005, without arrest. Based on the Government's recommendation, the Court released him pending trial.
Defendant filed the present motion on September 6, 2006, and the Court heard oral argument in support of, and in opposition to, that motion on November 21, 2006. At that time, the Court reserved decision. The following is the Court's written determination of this motion.
A. Defendant's Speedy Trial Act rights
Defendant asserts that Magistrate Judge Homer should have dismissed the original complaint "with prejudice" pursuant to the factors listed in 18 U.S.C. § 3162. He also contends that he is being re-prosecuted for the acts underlying the original complaint after an unreasonable delay in violation of the Speedy Trial Act.
The Government responds that the Speedy Trial Act does not apply in this case because the present Indictment consists of a different charge than the original complaint. Moreover, the Government asserts that, since the present Indictment consists entirely of a distinct charge from that contained in the original complaint, Defendant's request that this Court review Magistrate Judge Homer's dismissal of the original complaint is moot. Finally, the Government contends that dismissal of the original complaint "without prejudice" was proper pursuant to the factors listed in 18 U.S.C. § 3162.
Statutes of limitations and the Fifth Amendment's Due Process Clause are a defendant's primary protections against undue delay. See United States v. Gaskin, 364 F.3d 438, 452 (2d Cir. 2004) (citations omitted). The critical question in this case is whether the offense charged in the present Indictment was specifically charged in the original complaint because, if it was not, the dismissal remedy of 18 U.S.C. § 3162(a)(1) does not apply and review of Magistrate Judge Homer's dismissal of the original complaint would be unavailable. See id. Thus, even when overlapping or identical facts are involved, dismissal is not warranted if the present Indictment charge requires proof of distinct or additional elements which the charge in the original complaint did not require. See id. at 453. For example, in Gaskin, the Second Circuit held that two charges in the complaint differed from those in ...