UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 94-40082

and

No. 94-40083

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOHN R. JACKSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

(August 16, 1994)

Before GARWOOD, SMITH and D E MOSS, Circuit Judges.

D E MOSS, Circuit Judge:

Jackson was indicted for manufacturing marijuana, possessing

an ill egal firearm, and using a firearm in relation to a drug

trafficking offense. The indictment was filed on July 25, 1991,

and became Case No. 91-10008-01 in the Wester n District of

L ouisiana. The court set trial to begin on October 26, 1992.

Jackson moved to quas h the indictment because the government had

failed to prosecute his case in accordance with the Speedy Trial

Act, 18 U.S.C. § 3161(c)(1). The government conceded the validity2

of Jackson's motion but argued that any dismissal should be without

prejudice. The district court treated Jackson's motion to quash as

a motion to dismiss pursuant to Federal Rule of Criminal Procedure

12(a) and dismissed the case without prejudice in O ctober 1992.

The court, however, provided little insight as to the basis for its

conclusion. It simply listed the factors the Speedy Trial Act

requires courts to consider when dismissing indictments and stated

that it had "considered all relevant facts in light of the factors

set forth" in the Act.

Jackson moved the district court to amend its judgment to

dismiss the case "with prejudice." Jackson argued that the

district court erred in dismissing the indictment without prejudice

because the court did not sufficiently articulate the reasons for

its ruling, as required by the Speedy Trial Act. I n United States

v. Willis

, 958 F.2d 60, 64 (5th Cir. 1992), we noted that the

Speedy Trial Act requires district courts to consider certain

factors in determining wheth er to dismiss an indictment with or

without prejudice for violati on of the Act. The factors are the

seriousness of the offense, the facts and circumstances of the case

which led to the dismissal, and the impact of a re-prosecution on

the administration of the Speedy Trial Act and on the

administration of justice. I d

. at 64 (citing 18 U.S.C. §

3162(a)(2)).

After the district court denied Jackson's motion to amend in

November 1992, he timely appealed the dismissal without prejudice.

In June 1993, we dismissed the appeal for lack of jurisdiction3

because appel late review of a dismissal without prejudice must

await final judgment afte r re-indictment. U nited States v.

Jackson

, No. 92-5182 (5th Cir. June 24, 1993) (citing United States

v. Welborn

, 849 F.2d 980, 984 n.3 (5th Cir. 1988) ( "A dismissal

without prejudice is not a `final judgment' for purposes of 28

U.S.C. § 1291 and ordinarily does not fall within the collateral

order exception. Appellate review of a dismissal without prejudice

must therefor e await a final judgment entered after reindictment.")).

Meanwhile, on November 4, 1992, Jackson was reindicted on the

same counts: manufacturing marijuana, possessing an illegal

shotgun, and carrying a firearm in relation to a drug trafficking

crime. The indictment was filed in the same district court and

became Case No. 92-10022-01. Jackson never moved to dismiss the

1992 indictment on the grounds that the 1991 indictment should have

been dismissed with prejudice. Instead, in November 1993, Jackson

entered a guilty plea to the marijuana count of the 1992

indictment. The plea agreement, however, contained the following

language:

In consideration of said plea, the Gove rnment acknowledges

that sa id plea is a conditional plea, as set forth in Rule

11(a)(2), Federal Rules of Crimin al Procedure, and that

D efendant reserves his rights to appeal the Court's adverse

ruling as to JOHN R. JACKSON'S Motion to Dismiss and, should

such appeal be successful, Defendant shall be allowed to

withdraw his guilty plea, the Court shall then reinstate the

Indictment which was dismissed and speedy trial requirements

will star t anew from the date of the Indictment being

reinstated.

The district court sentenced Jackson to six months of imprisonment

and suspended the sentence in January 1994.1 It is unclear from the record who filed the notice with the

second case. The notice clearly was drafted as an appeal from

the first case because "CRIMINAL DOCKET NO. 91-10008-01" is

legibly typed at the top. The notice contained in the record for

the second case, however, has been doctored by hand to

specifically reference the second case number.

4 Jackson then appealed. His notice of appeal states that he is

appealing "the order dismissing his indictment without prejudice.

Said order was entered in this action on the 5TH day of November,

1992 with final Judgment and sentence imposed January 13, 1994."

Jackson, however, drafted the notice as an appeal from the first

case, i.e., case number 91-10008-01, and filed it with the court on

January 18, 1994. The notice also was filed on January 20, 1994,

as an appeal from the second case, i.e., case number 92-10022-01. 1

Jackson, in effect, has attempted to appeal both cases.

I.

We obviously are barred from reconsidering Jackson's appeal of

the f irst case. The notice of appeal was filed in January 1994,

more than year after the district court denied his motion to amend.

Pursuant to federal rules, Jackson had ten days to file his appeal,

see F ED

. R. A PP

. P. 4(b), which he clearly exceeded. We

additionally note that, even if Jackson's appeal had been timely,

we simply would have reiterated what we said in June 1993:

appellate review of a dismissal without prejudice must await final

judgment after re-indictment. We therefore must dismiss appeal

number 94-40082, which relates to the 1991 indictment.2 Jackson, and the government, believe that that alleged

error is reviewed for abuse of discretion. The abuse of

discretion standard would apply if Jackson conceded that the

court adequately stated its Willis findings and challenged only

5 II.

We now address his appeal from the second case, which is

appeal number 94-40083. Jackson now argues that, when the district

court dismissed his indictment without prejudice in the first case,

the court abused its discretion by not elaborating on the reasons

for its conclusion. We note that Jackson's argument is a

legitimate one. In discussing whether to dismiss an indictment

with or without prejudice, a district court cannot gloss over the

factors spelled out in the Speedy Trial Act. In United States v.

Taylor

, 487 U.S. 326 (1988), the Supreme Court specifically defined

the district courts' duties in dismissing indictments pursuant to

the Speedy Trial Act. The Court stated:

Where, as here, Congress has de clared that a decision

will be governed by consideration of particular factors,

a district court must carefully consider those factors as applied to the particular case and, whatever its

decision, clearly articulate their effect in order to

permit meaningful appellate review . Only then can an

appellate court ascertain whether a district court has

i gnored or slighted a factor that Congress has deemed

pertinent to the choice of remedy, thereby failing to act

within the limits prescribed by Congress.

Id . at 336-37 (emphasis added).

The district court below clearly failed to comp ly with the

Supreme Court's instructions in Taylor

. The district court's terse

comment that it had "considered all relevant facts in light of the

factors set forth in the" Act affords us no material to gauge the

appropriateness of its ruling. The court erred. 2its decision to dismiss the indictment without prejudice. See,

e.g.

, United States v. Cobb , 975 F.2d 152, 157 (5th Cir. 1992);

United States v. Melguizo , 824 F.2d 370, 371-72 (5th Cir. 1987).

But that is not the gist of Jackson's appeal. Instead, he is

arguing that the district court failed to comply with dictates of

the Speedy Trial Act. The court's compliance, or failure to

comply, with the Act is strictly a matter of law. We therefore

review such proceedings de novo. Taylor , 487 U.S. at 337 ("A

judgment that must be arrived at by considering and applying

statutory criteria, however, constitutes the application of law

to fact and requires the reviewing court to undertake more

substantive scrutiny to ensure that the judgment is supported in

terms of the factors identified in the statute.").

6 We conclude, however, that Jackson has waived his right to

dismissal of the second indictment. The Speedy Trial Act expressly

states that "[f]ailure of the defendant to move for dismissal prior

to trial or entry of a plea of guilty or nolo contendere shall

constitute a waiver of the right to dismissal under this section."

18 U.S.C. § 3162(a)(2). While Jackson properly moved for dismissal

of the 1991 indic tment, he n ever moved for dismissal of the 1992

indictment. Jackson should have moved for dismissal of the 1992

indictment prior to his entry of the conditional guilty plea to one

count in that indictment. Had he done so, he could have then

argued, as he does now before us, that the district court erred in

dismissing the first indictment without prejudice and that the

district court should correct that error by dismissing the second

indictment with prejudice. This would have permitted the district

court to re-address the issue of compliance with the Speedy Trial

Act, as interpreted by the Supreme Court in Taylor

. Jackson,

however, failed to do that, and, pursuant to the Speedy Trial Act,

he waived his rights. We therefore must dismiss appeal number 94-

40083, which relates to the 1992 indictment.wjl\opin\94-40082.opn

jwl 7 III.

Jackson's two appeals are DISMISSED.