The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
John Golom ("the defendant"), who spent 119 days in federal custody before he was arraigned, moves to dismiss the indictment against him with prejudice. While the government acknowledges that dismissal for its violation of the Speedy Trial Act is warranted, it contends that dismissal should be without prejudice to reprosecution. After hearing the parties at oral argument and carefully considering the facts and circumstances of this case, the court grants the defendant's motion, in part, by dismissing the indictment and denies it, in part, as the dismissal of the indictment is without prejudice.
On February 26, 2003, the defendant was convicted of bank fraud and aiding and abetting thereof in violation of 18 U.S.C. §§ 1344 and 2, in the U.S. District Court for the Middle District of Pennsylvania. The court sentenced the defendant to twenty-one months of imprisonment and five years of supervised release. On August 12, 2004, the defendant was sentenced to another nine months of imprisonment and three months of supervised release after he violated the terms of supervised release on his original federal sentence. The defendant then violated the terms of supervised release on this second federal sentence and was sentenced to another twelve months of imprisonment on March 16, 2006.*fn1
Ten months into his third federal sentence of imprisonment, the Federal Bureau of Prisons ("BOP") granted the defendant a furlough to travel unsupervised by bus from Ray Brook Federal Corrections Institution to the Brooklyn Community Corrections Center ("Brooklyn CCC"), a half-way house, where he was ordered to serve the remaining sixty days of his sentence.*fn2 The defendant never reported to the Brooklyn CCC as expected. The next day, the BOP issued a notice of escape. (Gov't Ltr., July 11, 2008, Ex. E.) On March 2, 2007, a warrant was issued in this district for the defendant's arrest. (Id. at Ex. F.)
On May 15, 2007, the police arrested the defendant in Nassau County, New York, on extortion and harassment charges.*fn3 The defendant pled guilty to attempted grand larceny in the second degree (N.Y. Penal Law §§ 110 & 115.40) and aggravated harassment in the second degree (N.Y. Penal Law § 240.30), and was sentenced to eleven months of imprisonment in local custody. When the defendant completed this term of imprisonment at the Nassau County Correctional Facility in East Meadow, New York, on the evening December 20, 2007, the United States Marshals Service ("U.S. Marshals" or "Marshals") took him into federal custody pursuant to two detainers and held him at the Queens Private Correctional Facility ("Queens facility"). The next day, Friday, December 21, 2007, the Marshals produced the defendant at this courthouse. The Marshals notified the magistrate arraignment clerks, but the defendant was not arraigned and was returned to the Queens facility. (Report of the U.S. Marshals, attached as Ex. H to Gov't Ltr., July 11, 2008.) James Gatta, the primary AUSA assigned to arraignment court duty that day does not recall receiving any information from the Marshals or the magistrate arraignment clerks regarding the defendant or hearing about a defendant taken into federal custody after having served a state sentence. (Aff. of James D. Gatta, attached as Ex. K to Gov't Ltr., July 11, 2008, at ¶¶ 4-6.) The cellblock log on that date shows "cancelled" written next to the defendant's name. (Prison Log dated December 21, 2008, attached as Ex. H to Gov't Ltr., July 11, 2008, at 10.) The defendant was not arraigned until April 16, 2008, some 119 days later.
Apparently, the defendant's case and incarceration went unnoticed by the U.S. Attorney's Office. As an internal investigation later revealed, Judith Philips, the Chief of Intake and Arraignments for the U.S. Attorney's Office, first received a telephone call from Deputy Marshal Frank Gonzalez just as the defendant was about to be taken into federal custody. AUSA Philips does not recall this telephone call, but wrote in her telephone log "escape M 07 290" on either December 19 or 20, 2007. (Aff. of Judith Philips dated July 11, 2008 ("Philips Aff."), attached as Ex. I to Gov't Ltr., July 11, 2008, at ¶ 9). During the morning of December 26, 2007, Deputy Marshal Gonzalez again called AUSA Philips about the defendant's case and left a voicemail message. That afternoon, AUSA Philips returned the call and asked for the warrant and complaint in the case, which the U.S. Marshals duly faxed over. (See U.S. Marshal's handwritten notes memorializing telephone communications and fax cover sheet dated December 26, 2007 from Deputy Marshal Gonzalez to AUSA Philips, attached as Ex. H to Gov't Ltr., July 11, 2008.) AUSA Philips has no independent recollection of the telephone calls, but her notes indicate "escapee picked up in Nassau Co. John Golom, 07 M 290." (Philips Aff., at ¶ 10.)
On January 7, 2008, Deputy Marshal Gonzalez faxed a brief note to AUSA Philips asking for a status report regarding the defendant and indicated that the U.S. Marshals were closing out 2007 cases. (See Fax from Deputy Marshal Gonzalez to AUSA Philips, dated Jan. 7, 2008, attached as Ex. I to Gov't Ltr., July 11, 2008.) AUSA Philips, who was on vacation from December 31, 2007 to January 14, 2008, recalls reviewing the fax upon her return to the office. She interpreted the U.S. Marshal's message as a request to dismiss the case. The fax did not indicate that the defendant was in custody and she was not aware of his incarceration. AUSA Philips retrieved and reviewed the case file, considered the case still active, and returned the file to the outstanding warrants folder. (Philips Aff., at ¶ 11). AUSA Philips believed that she subsequently left Deputy Marshal Gonzalez a voicemail conveying her position against dismissal of the complaint, but does not have notes to support that belief. AUSA Philips had no further correspondence on the case until she was contacted by Chief Judge Raymond J. Dearie four months later. At oral argument, the government indicated that there is usually staff coverage when the Chief of Intake is away from the office and that there was coverage during AUSA Philips' vacation in January 2008. However, apparently no one in the prosecutor's office reviewed the January 7 fax, and no further action was taken on the defendant's case.
On April 7, 2008, the defendant wrote a letter to Chief Judge Dearie seeking clarification of his status. The defendant explained that he had been held in a detention center in Jamaica, Queens, since December 21, 2007 "without any court appearance what so ever [sic], no arraignment no bail hearing / no court appointed counsel / no nothing (why?)" He pled for help: "Since I know nothing about the law, who do I turn too, [sic] If you could kindly assist me with some valuable advice it would be greatly appreciated." Chief Judge Dearie notified AUSA Philips of the defendant's situation on April 14, 2008. After reviewing the defendant's letter, AUSA Philips retrieved the case file, which was stored in the outstanding arrest warrant files in the Intake unit, and issued a "475 request" to the U.S. Marshals to produce the defendant in arraignment court on April 16, 2008. (Philips Aff., at ¶ 5.) In light of the "atypical" circumstances surrounding the defendant's incarceration, AUSA Philips personally appeared at the defendant's arraignment that day, 119 days after his transfer from state custody. On May 12, 2008, 145 days after the U.S. Marshals took him into federal custody, the defendant was indicted on one count of flight from federal custody pursuant to 18 U.S.C. § 751(a).
A subsequent investigation undertaken by the U.S. Attorney's office at the direction of this court shed some light on the circumstances surrounding the defendant's case. First, the court inquired as to whether the Marshals obtained a custody order permitting them to hold the defendant after his release from the courthouse. The U.S. Attorney's office determined that the Marshals did not obtain a custody order because the defendant was already "in custody" pursuant to the judgment and sentence he was serving prior to his escape. (Gov't Ltr., Sept. 3, 2008, at 1.) Thus, when the defendant was not presented for arraignment before a magistrate judge on December 21, 2007, he was automatically remanded to the BOP. (Id., at 2.) The court also inquired regarding the lodging documentation required by the Queens facility. The U.S. Attorney's office informed the court that "no documentation is required to lodge a defendant there (and accordingly no documentation exists)." (Id.) The court next inquired as to whether officials at the Queens facility asked the defendant about his next court appearance or whether the facility monitors defendants' cases to ensure that they are processed appropriately. Policy set by the Queens facility requires review of the status of every detainee, within 120 days of their arrival, by personal interview. (Id. at 3.) In this case, Queens facility personnel met with the defendant on December 24, 2007 and March 10, 2008. (Id.) In December 2007, the defendant told Queens facility personnel that "the reason he [was] charge[d] [with] escape [was] because the bus was late so he was late to the halfway house." (Id., Ex. B.) In March 2008, the defendant told Queens facility personnel that he wanted "to know how long he will be in [the Queens facility] before they sent him to [the] MDC." (Id., Ex. B.) Queens facility Warden William D. Zerillo also stated via letter that, during an interview by a classifications officer, the defendant stated that he had no pending court dates. (Id., Ex. C.) Finally, the court sought clarification on how defendants produced to the courthouse are tracked. Generally, one of three magistrate clerks coordinates with both the Marshals and the U.S. Attorney's office to determine which defendants are scheduled to appear before the duty magistrate judge. (Id. at 4.) In this case, neither of the two magistrate clerks who worked on December 21, 2007, recalled being informed of the defendant's production on that date. (Id.)
The Speedy Trial Act requires the government to charge "an individual with the commission of an offense" by filing an information or indictment "within thirty [(30)] days from the date on which such individual was arrested or served with a summons in connection with such charges." 18 U.S.C. § 3161(b). The time limits of the Speedy Trial Act begin to run automatically upon such an occurrence. New York v. Hill, 528 U.S. 110, 118 n.2 (2000). If no indictment or information is filed in within the time limit required, the charges against the defendant "shall be dismissed or otherwise dropped." 18 U.S.C. § 3162(a)(1). In this case, the violation of the Speedy Trial Act is clear: the government did not indict the defendant until 145 days after taking him into federal custody. The government agrees that dismissal is warranted, but argues that the case should be dismissed without prejudice to reprosecute.
In determining whether to dismiss a case with or without prejudice due to the government's violation of the Speedy Trial Act, the courts are instructed by statute to "consider, among other [factors]: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of the Speedy Trial Act; and on the administration of Justice." 18 U.S.C. § 3162(a)(1). This determination is a matter within the court's discretion. See United States v. Taylor, 487 U.S. 326, 335 (1988). In addition to the factors explicitly cited in the Speedy Trial Act, courts also consider whether dismissal without prejudice would prejudice the defendant. United States v. Gaskin, 364 F.3d 438, 451 (2d Cir. 2004); United States v. Upton, 921 F. Supp. 100, 105 (E.D.N.Y. 1995) aff'd United States v. Dragone, 78 F.3d 65, 65 (2d Cir. 1996) (noting that the "impact of a ...