The opinion of the court was delivered by: Richard J. Sullivan, District Judge
Defendant Deondray King moves to dismiss the indictment pursuant to the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161 et seq. ("Speedy Trial Act"), and the Sixth Amendment of the United States Constitution. The government opposes defendant's motion, on the grounds that the facts of the case do not support a finding that either a Sixth Amendment violation or a Speedy Trial Act violation has occurred. For the following reasons, defendant's motion is denied in its entirety.
Unless otherwise indicated, the parties do not dispute the facts giving rise to the motion. On or about October 17, 2007, the government filed a complaint against the defendant charging him with participating in a narcotics conspiracy pursuant to 21 U.S.C. § 846. On October 18, 2007, defendant was arrested in the Eastern District of Pennsylvania. He was subsequently transported to New York and arrived at the Metropolitan Detention Center ("MDC") in Brooklyn on October 30, 2007. Upon his arrival, he met with an attorney who subsequently spoke with counsel for the government. The government claims (and the defendant does not dispute) that, during the course of that initial conversation with defense counsel, the government was not told that defendant was present in at the MDC.*fn1 (See Transcript of May 5, 2008 Oral Argument ("May 5 Tr.") at 23.)
On Friday, December 7, 2007, new counsel for the defendant contacted the government and informed the government that the defendant was present at the MDC awaiting presentment on the complaint. Defendant was then presented before the Honorable Theodore H. Katz, Magistrate Judge, at the earliest possible date, which was the following Monday, December 10, 2007. At the presentment, the government sought dismissal of the October 17 complaint, due to the fact that the time to indict defendant under the Speedy Trial Act had expired. All parties at the presentment consented to dismissal of the original complaint, and with the knowledge of all parties, a new complaint, identical to the October 17, 2007 complaint, was filed simultaneously before Judge Katz. However, in asking for dismissal of the first complaint, the government mistakenly requested that the complaint be dismissed "with prejudice," and Judge Katz granted that request. (See Transcript of December 10, 2007 Conference ("Dec. 10 Tr." at 4-6.) In connection with the newly filed complaint, Judge Katz also scheduled a preliminary hearing to be held on December 26, 2007. On December 26, 2007, having failed to indict the defendant, the government moved to dismiss the second complaint without prejudice. That request was granted. For the remainder of December 26 and part of December 27, defendant remained in custody pursuant to a detainer filed against him for violation of supervised release in the Eastern District of Pennsylvania. He was finally indicted on the instant charges on the next day, December 27, 2007.
This motion is based on the improper delay that occurred between defendant's arrival in Brooklyn on October 30, 2007 and his initial presentment on December 10, 2007. The government contends that they did not receive notice of the defendant's presence at the MDC before December 7, 2007, and asserts that the United States Marshal Service ("USMS") was not given a manifest for the bus that brought the defendant and one other passenger from Pennsylvania. (See May 5 Tr. at 24-25.) As a result, the USMS was unaware of the defendant's presence and thus failed to notify the United States Attorney's Office ("USAO"). (See id.) The government further asserts that, since the time of this mishap, certain measures have been implemented to ensure that the same mistake does not happen again. (See id. at 25-27.) For example, the government reports that the Justice Prisoner and Alien Transportation Service, the entity responsible for transporting federal prisoners, now sends an email to the USMS to alert them of the transfer of a prisoner to the district. (See id. at 26.) The USAO is also required to notify the USMS when a defendant is arrested or detained in another district, so that the USMS has notice that there may be a transfer. (See id.)
Defendant's motion to dismiss the indictment is based on two grounds: the Sixth Amendment right to a speedy trial and the rights bestowed upon the defendant by the Speedy Trial Act. The Court shall address each in turn.*fn2
A. Sixth Amendment Right to a Speedy Trial
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed . . ." U.S. Const. amends. VI, XIV; Rayborn v. Scully, 858 F.2d 84, 88 (2d Cir. 1988). However, "[i]t is indisputable that the Sixth Amendment speedy trial right does not apply to pre-indictment delay." United States v. Elsbery, 602 F.2d 1054, 1058 (2d Cir. 1979) (citing United States v. Marion, 404 U.S. 307, 313 (1971)); see also Schurman v. Leonardo, 768 F. Supp. 993, 998 (S.D.N.Y. 1991) ("Delay between the crime and the indictment is wholly irrelevant under the Speedy Trial Clause of the Sixth Amendment."); accord Lloyd v. Artus, No. 06 Civ. 3888 (JSR), 2008 WL 892396, at *10 n.8 (S.D.N.Y. Apr. 1, 2008). A claim based on pre-indictment delay instead rests upon the Fifth Amendment's Due Process Clause. See Marion, 404 U.S. at 324; Elsbery, 602 F.2d at 1059; see also United States v. Alameh, 341 F.3d 167, 176 (2d Cir. 2003) ("Pre-indictment delay can constitute a violation of the Due Process Clause of the Fifth Amendment."). To demonstrate a due process violation based upon pre-indictment delay, a defendant must show "actual prejudice to [his] right to a fair trial [a]nd unjustifiable Government conduct." Elsbery, 602 F.2d at 1059; see also Denis v. Upstate Corr. Facility, 361 F.3d 759, 760 (2d Cir. 2004) (holding that the government must have used the delay as "an intentional device to gain a tactical advantage").
The defendant's motion is based entirely on pre-indictment delay. Therefore, any analysis under the Sixth Amendment right to a speedy trial is irrelevant. Neither the defendant nor the government has advanced arguments under the Due Process Clause. However, even if the defendant had argued that the pre-indictment delay constituted a due process violation, the defendant has failed to show actual prejudice to his right to a fair trial, as discussed below.
Accordingly, defendant's motion to dismiss based on a violation of his Sixth Amendment right to a speedy trial and/or his Fifth Amendment due process right is denied.
B. The Speedy Trial Act 1. Legal Standard
The purpose of the Speedy Trial Act is to ensure "that charges actually pending against a defendant be promptly processed." United States v. Gaskin, 364 F.3d 438, 455 (2d Cir. 2004) (citing United States v. Hillegas, 578 F.2d 453, 456 n.3 (2d Cir. 1978) (citing legislative history)). Under the Speedy Trial Act, "[a]ny information or indictment charging an individual with the commission of an offense shall be filed ...