Opinion for the court filed by Circuit Judge TAMM.
TAMM, Circuit Judge:
The Speedy Trial Act provides that an indictment must be filed within thirty days of an individual's arrest. Section 3161(d)(1) of the Act usually permits the time period for indictment to run anew when a complaint is dismissed. The district court, however, interpreted the section not to apply when the complaint has been dismissed more than thirty days after arrest and the dismissal would have been with prejudice if the issue had been addressed. We agree with this construction and find that the district court properly exercised its discretion in determining that the complaint should have been dismissed without prejudice and, therefore, that the district court correctly denied the motion to dismiss the indictment. Accordingly, we affirm.
I. FACTUAL BACKGROUND & STATUTORY FRAMEWORK
Defendant was arrested on December 10, 1981. On the following day a complaint was filed charging him with forging and uttering a United States Treasury check in violation of 18 U.S.C. § 495. On January 22, 1982, the United States dismissed the complaint by filing a praecipe. On January 28 an original indictment was returned charging defendant with two counts of forging and uttering a United States Treasury check, 18 U.S.C. § 495, and one count of possession of stolen mail matter, 18 U.S.C. § 1708. These charges were based on the same criminal conduct as the complaint that had previously been dismissed. On February 5 defendant filed a motion to dismiss the indictment for violation of the Speedy Trial Act and Local Rule 2-7(4)(a) of the United States District Court for the District of Columbia. United States District Judge Joyce Hens Green denied defendant's motion. On March 3, after a stipulated
Title 18 U.S.C. § 3161(b) provides that an indictment must be filed within thirty days of an individual's arrest.
The trial court recognized that the 43-day period between defendant's arrest and the dismissal of the complaint and the 49-day period between defendant's arrest and indictment exceeded the Speedy Trial Act's 30-day time limit for indictment. Trial Record, Part 2 (T.R.) at 9, 13-14. The court also recognized that the Speedy Trial Act mandated that the complaint be dismissed, as it had been. Id. at 9. Nevertheless, the court held that the indictment could be dismissed only if the complaint should have been dismissed with prejudice. Id.
Defendant contends that section 3161(d)(1) does not apply when a complaint is dismissed more than thirty days after an arrest and that in the present case sections 3161(b) and 3162(a)(1) require that the indictment be dismissed without inquiry into whether the complaint should have been dismissed without prejudice. Alternatively, defendant argues that the trial court misapplied the three factors set forth in section 3162(a)(1) in determining that the complaint should have been dismissed without prejudice. He contends that the general
A. Construction of Section 3161(d)(1)
Section 3161(d)(1), rather than section 3161(h)(6), is applicable when a complaint, as distinguished from an indictment, is dismissed by the government and an indictment is later filed. United States v. Krynicki, 689 F.2d 289, 292 (1st Cir.1982); United States v. Peters, 587 F.2d 1267, 1273 (D.C. Cir.1978); Comm. on Administration of the Criminal Law of the Judicial Conference, Guidelines to the Administration of the Speedy Trial Act of 1974 as Amended (Dec., 1979), revised Aug. 1981, at 15-16.
The meaning of section 3161(d)(1) is not apparent at first glance: "If ... any charge contained in a complaint ... is dismissed ..., and thereafter ... [an] indictment is filed ... based on the same conduct ..., the provisions of [subsections 3161(b) and (c)] shall [apply to] such subsequent ... indictment ...." The section can be read to require that indictments filed after the dismissal of initial charges must be returned within thirty days of the original arrest. This interpretation, however, must be incorrect. First, such an interpretation makes section 3161(d)(1) mere surplusage because section 3161(b) already performs that function (if one disregards the actual meaning of section 3161(d)(1)). Second, this interpretation renders the Speedy Trial Act inconsistent with traditional speedy trial guarantees, which focus on pending criminal proceedings. See United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696 (1982) (holding that Sixth Amendment speedy trial guarantee is inapplicable to period between dismissal of military charge and indictment on civilian charge). Third, this interpretation contradicts the legislative history of the Speedy Trial Act.
S.Rep. No. 93-1021, 93d Cong., 2d Sess. 33 (1974), reprinted in A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974 78-79 (1980) (footnote added). Therefore, the correct interpretation of section 3161(d)(1) is that after the dismissal of a complaint, the Act's time limits run anew from the date of the filing of the subsequent complaint or indictment. United States v. Krynicki, 689 F.2d at 293; United States v. Abernathy, 688 F.2d 576, 580 (8th Cir.1982); Frase, The Speedy Trial Act of 1974, 43 U.Chi.L.Rev. 667, 696 (1976).
United States v. Peters, 587 F.2d at 1273 (footnote added).
On the other hand, the broad language of several cases indicates that section 3161(d)(1) applies even if the complaint is dismissed after the time period for indictment has expired.
United States v. Belleville, 505 F.Supp. 1083, 1084 (E.D.Mich.1981) (emphasis added). In United States v. Krynicki, 689 F.2d at 293, the court held that "§ 3161(b) applies only where, at the time of indictment, the charge upon which a defendant was arrested and upon which a complaint was issued is still pending." Similar language is used in United States v. Abernathy, 688 F.2d at 580, and United States v. Jones, 676 F.2d 327, 330 (8th Cir.1982).
We find neither the language in Peters nor the language in Belleville and Krynicki decisive. The statement in Peters is dictum, and Peters has been criticized for relying on a Senate Report
In contrast to Belleville and the others, two cases have involved the dismissal of a complaint after the thirty-day period for indictment had expired. In United States v. Ford, 532 F.Supp. 352 (D.D.C.1981), the defendant was arrested on June 21, 1981, and charged in a complaint the next day. The complaint was dismissed on July 27, thirty-five days after charges were filed, upon motion of the government. The defendant was indicted on September 11, eighty-one days after charges were filed. Without discussing section 3161(d)(1), the court held that dismissal of an indictment is mandatory when the time period of section 3161(b) is exceeded. Id. at 353. In United States v. Caparella, 542 F.Supp. 826 (E.D.N.Y.1982), the defendant was arrested and arraigned on June 10, 1981. On July 31, fifty-one days after the arrest, the magistrate dismissed the complaint on the government's ex parte motion, without specifying whether the dismissal was with or without prejudice. On September 16 the government filed an information against the defendant. The defendant moved to dismiss the information because the government had failed to dismiss the complaint within thirty days of his arrest. Implicitly recognizing that dismissing a complaint beyond the period for indictment does not always require the dismissal of a subsequently filed indictment, the court remanded the case to the magistrate for a determination of whether the complaint should have been dismissed with or without prejudice. Id. at 828-29.
We find the approach of the court in Caparella and of the trial court in the present case convincing. When a complaint is dismissed after the thirty-day period for indictment has elapsed, and there is no determination whether the dismissal is with or without prejudice, a subsequently filed indictment should be dismissed only if the complaint should have been dismissed with prejudice. This approach presents no advantage to the government for winning the race to dismiss the complaint and then filing an indictment. If the complaint is dismissed on the government's ex parte motion, the defendant can later compel a determination of his speedy trial rights,
B. Application of Section 3162(a)(1)
After deciding that it had to determine whether the complaint should have been dismissed with or without prejudice, the trial court considered the three factors listed in section 3162(a)(1), as well as other factors. The court found that defendant's crime was relatively serious, that the government's exceeding the time limit was unintentional and is unlikely to recur, that the delay beyond the time limit was short, and that defendant suffered little prejudice. Weighing these factors, the court found that the complaint should have been dismissed without prejudice.
Section 3162(a)(1) makes it clear that the trial court has discretion to dismiss the complaint with or without prejudice and that the court may consider factors other than the ones listed in the section: "In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors ...." See United States v. Brainer, 691 F.2d 691, 699 (4th Cir.1982) (recognizing that the district court has discretion to dismiss with or without prejudice); Frase, supra, at 705. But see United States v. Iaquinta, 515 F.Supp. 708, 712 (N.D.W.Va. 1981) (stating that dismissal without prejudice should be granted only in rare instances), rev'd on other grounds, 674 F.2d 260 (4th Cir.1982). Prejudice to the defendant is one of the factors that the district court may consider. 120 Cong.Rec. 41,794-95 (1974) (colloquy between Rep. Dennis and Rep. Cohen); Frase, supra, at 705. In the present case the trial court did not place undue emphasis on the lack of prejudice to defendant, but rather weighed this factor along with the others. Also, the court did not err in using the punishment prescribed by statute for possessing stolen mail matter as a measure of the severity of the crime. The trial court properly exercised its discretion in identifying and weighing the various factors and in determining that the complaint should have been dismissed without prejudice.
The district court correctly interpreted section 3161(d)(1) not to apply when the complaint has been dismissed more than thirty days after arrest and the dismissal would have been with prejudice if the issue had been addressed. The court then properly exercised its discretion in determining that the complaint should have been dismissed without prejudice and, therefore, correctly denied the motion to dismiss the indictment. Accordingly, the judgment of the district court is
18 U.S.C. § 3161(b) (1976).
18 U.S.C. § 3161(c)(1) (Supp. V 1981).
18 U.S.C. § 3162(a) (1976).