ALVIN B. RUBIN, Circuit Judge:
This appeal presents a single issue: did the district court err in refusing to dismiss with prejudice the complaint against the defendant for the government's failure to indict him within thirty days of his arrest as required by the Speedy Trial Act? Because the Act commits to the judge's discretion the decision whether to dismiss the complaint with or without prejudice, we hold that the court acted within its authority when it dismissed the complaint without prejudice.
Jesus Salgado-Hernandez was arrested on August 1, 1985, for unlawfully transporting eleven undocumented aliens. A complaint was filed the same day. On September 9, Salgado filed a motion to dismiss the complaint with prejudice for the government's failure to indict him within thirty days of his arrest as required by the Speedy Trial Act.
On the same day that the magistrate dismissed the complaint without prejudice, the government filed an information charging Salgado with the commission of eleven counts of illegal transportation of aliens.
Salgado entered a conditional plea of guilty to one count of the indictment, reserving his right to appeal the district court's affirmance of the magistrate's order and its refusal to grant his second motion to dismiss the indictment. He received a suspended five-year sentence. Salgado separately appealed each of the district court orders and the appeals were consolidated.
The Speedy Trial Act of 1974
The Act does not create a presumption in favor of dismissal with prejudice when its time limits are violated, for reasons the Second Circuit has exhaustively explained in United States v. Caparella.
After reviewing the district court's application of the three factors set out in § 3162(a)(1), and its decision to dismiss the complaint against Salgado without prejudice, we conclude that the court clearly did not abuse its discretion. We discuss each of the factors in turn.
1. Seriousness of the offense. Each party characterizes the offense of alien-smuggling differently. The defendant
The Speedy Trial Act applies to felonies and to misdemeanors other than petty offenses.
2. The facts surrounding the delay. The parties agree that the government's failure to meet the deadline was due to negligence. The government argues persuasively that the Act can have a deterrent effect only if the government had made a voluntary decision to delay seeking the indictment. When the delay is attributable to an administrative error, the government argues, harsh application of the Act has no prophylactic effect. Although the District of Columbia Circuit has credited this argument,
3. Impact of reprosecution on the administration of the Act and justice in general. The defendant argues that the Speedy Trial Act was targeted to curb administrative neglect. He contends that the court's failure to dismiss with prejudice has no prophylactic effect on the government and, hence, does not foster the goals of the Act. The government responds that this first-interval delay lasted only nine days, imposing minimal prejudice on the defendant. Moreover, the government argues, dismissal without prejudice cannot undermine the administration of the Act when the Act itself commits the decision to dismiss with or without prejudice to the court's discretion. We find that those interests balance one another.
With respect to the impact of reprosecution on the administration of justice, Salgado presses his deterrence argument and also argues that he was prejudiced by the delay in seeking the indictment. The government responds that when, as here, the crime is serious, the sanction of dismissal with prejudice should be imposed only for a correspondingly serious delay. The delay in indicting Salgado was not lengthy.
Whether Salgado was prejudiced by the delay is doubtful. He remained in pretrial confinement throughout the nine-day delay, but bail had been set shortly after his arrest at $20,000, with his counsel's consent. Salgado has not shown that, if he had been indicted timely, he could have
For the reasons set forth above, the district court's affirmance of the magistrate's dismissal of the complaint without prejudice is AFFIRMED.