MEMORANDUM ORDER

LAURA TAYLOR SWAIN, United States District Judge

Defendant Juan Avendano, who has at all relevant times been represented by counsel, submitted a pro se motion to dismiss the Indictment. The Court instructed his then counsel, as well as replacement counsel subsequently appointed at Mr. Avendano's request, to review the papers and discuss them with Mr. Avendano. Having been advised by both counsel that, not withstanding their conclusions that the motion was not well-founded in law or in fact, that Mr. Avendano nonetheless wished to pursue it, and in light of the unique circumstances of this case, the Court determined that a judicial determination of the motion would serve the interests of justice. The Court accordingly deemed the motion filed as of October 16, 2002 and directed the Government to make a formal response.

The Court has considered carefully Defendant's motion and the Government's opposition to the motion. For the following reasons, Defendant's motion is denied.

BACKGROUND

Defendant was arrested on May 10, 2002 on charges of conspiring to possess and distribute cocaine. On May 13, 2002, Defendant was presented before a United States Magistrate Judge in connection with the charges. Defendant contends that, after that time, approximately 92 days passed before the Government filed the Indictment.

Defendant argues that, because the Government failed to comply with the relevant time requirements of the "Speedy Trial Act," the Indictment should be dismissed pursuant to 18 U.S.C. § 3162(a)(1) as untimely filed.

DISCUSSION

The Speedy Trial Act provides, in pertinent part, that "[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." 18 U.S.C.A. § 3161(b) (West 2000). That time period, however, may be extended under 18 U.S.C. § 3161(h). 18 U.S.C.A. § 3161(h) (West 2000).

Section 3162(a)(1) provides that, if the time requirements of section 3161(b), as extended under section 3161(h), are not met, the charge "shall be dismissed or otherwise dropped." 18 U.S.C.A. § 3162 (West 2000).

Section 3161(h) enumerates the conditions pursuant to which the time limitations under section section 3161(b) may be extended. Subsection (h) of section 3161 excludes from the Speedy Trial Act time limitations:

Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interests of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by such court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.

Defendant Avendano's first appearance before a judicial officer occurred on May 13, 2002. The record in this case reflects that an order of continuance was entered by a United States Magistrate Judge on June 10, 2002 extending the Government's time to file an indictment for 30 days, or until July 10, 2002, based on a finding by the court that, pursuant to 18 U.S.C. § 3161(h)(8)(A), the continuance served the ends of justice and outweighed the best interest of the public and the defendant in a speedy trial because the Government and Defendant's then counsel were engaged in discussions concerning a possible disposition of the case. On July 10, 2002, a second order of continuance excluding time from speedy trial computations to August 9, 2002, was entered by a United States Magistrate Judge pursuant to 18 U.S.C. § 3161(h)(8)(A) on the basis that the continuance served the ends of justice and outweighed the best interest of the public and the defendant in a speedy trial because the Government and defense counsel were engaged in discussions concerning a possible disposition of the case.

Defendant Avendano was indicted on August 8, 2002, which was prior to the expiration of the July 10, 2002 order excluding time from speedy trial computations. He was arraigned on August 15, 2002. At Defendant's arraignment on August 15, 2002, time was excluded under the Speedy Trial Act by order of this Court until October 16, 2002 and subsequently, at a conference held on October 16, 2002, this Court ordered time excluded through November 8, 2002.

Because the above time periods were excluded from speedy trial computations in accordance with the requirements of the Speedy Trial Act, there is no basis for granting Defendant Avendano's motion to dismiss the Indictment pursuant to that Act as untimely. See 18 U.S.C.A. § 3162 (West 2000).

Defendant frames his motion to dismiss the Indictment under the Speedy Trial Act. Applying a liberal reading to his motion, he also appears to argue that the Indictment should be dismissed because the Government waited an inordinate length of time to file the Indictment.

To extent Defendant's motion can be construed to assert such a claim, his motion seeks to dismiss the Indictment for pre-indictment delay in violation of the Due Process Clause of the Fifth Amendment.

In order to establish improper pre-indictment delay where, as here, the Indictment was brought within the applicable statutory time constraints including proper exclusions, a defendant must show: (1) the delay caused the defendant to suffer "substantial prejudice" in his ability to present his defense; and (2) the delay was done intentionally to gain a tactical advantage over the defendant. United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999) (citation omitted).

The Second Circuit has recognized that:

Prejudice in this context means that sort of deprivation that impairs a defendant's right to a fair trial. See United States v. Elsbery, 602 F.2d 1054, 1059 (2d Cir. 1979). This kind of prejudice is commonly demonstrated by the loss of documentary evidence or the unavailability of a key witness. See, e.g., Lovasco, 431 U.S. at 796, 97 S.Ct. 2044, 52 L.Ed.2d 752 (accepting defendant's claim of prejudice based on loss of testimony of two material witnesses but finding no due process violation because delay was not improper); Marion, 404 U.S. at 325-26 (rejecting due process claims as speculative and premature, but commenting that actual prejudice may be shown if memories . . . dim, witnesses become inaccessible, and evidence [is] lost).

Cornielle, 171 F.3d at 752 (internal quotation marks omitted).

In this case, Defendant Avendano has made no argument and has presented no facts indicating that any delay in the Indictment has caused prejudice in his ability to present his defense. See Cornielle, 171 F.3d at 752 (stating that prejudice is generally shown by the loss of documentary evidence or the unavailability of a key witness). Nor has Mr. Avendano argued that the Government intentionally delayed indicting him to gain a tactical advantage. Given the foregoing, Defendant Avendano has not established any of the elements of pre-indictment delay under the Fifth Amendment. Accordingly, insofar as Mr. Avendano's motion is construed as a motion to dismiss the Indictment for pre-indictment delay, it is denied.

CONCLUSION

For all of the foregoing reasons, Defendant Avendano's motion to dismiss the Indictment for the Government's non-compliance with the thirty-day requirement under section 3162(a) is denied, and insofar as Defendant Avendano seeks to dismiss the Indictment for pre-indictment delay under the Due Process Clause of the Fifth Amendment to the United States Constitution, the motion is also denied.

SO ORDERED.