## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1735ND

_____________ United States of America, * * Appellee, * Appeal from the United States

* District Court for the District v. * of North Dakota. * Juvenile Male E.S., * [UNPUBLISHED] * Appellant. *

_____________ Submitted: October 20, 1998

Filed: October 28, 1998

_____________ Before FAGG, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

_____________ PER CURIAM.
Juvenile Ma le E.S. appeals the district court’s denial of his motion to dismis s asserting the government f ailed to comply with the thirty-day speedy trial requirement in 18 U.S.C. § 5036. We conclude certain delays did not count towards the thirty-day period, and thus affirm.

After he stabbed another juvenile on the Turtle Mountain Indian Reservation , E.S. was arrested by a tri bal officer, taken into custody, and charged in tribal court on November

6, 1997. On November 12, the federal government filed a certification of juvenile delinquency under 18 U.S.C. § 5032. A day later, a federal district court-2-

issued a ha beas writ of prosecution directing tribal authorities to relinquish E.S. t o federal marshals. Marshals served the writ and took E.S. into custody on November 14. At the detention hearing on November 20, the parties discussed E.S.’s earlie r beha vioral history, and E.S.’s counsel asked for a psychological evaluation t o determine whether E.S. understood the proceedings or nature of the offense. When the distric t court gave defense counsel until November 24 to file a motion requesting a n evaluation, defense counsel requested until December 2 to file the moti on. On that day, however, d efense counsel filed a motion to dismiss the indictment for violation of the thirty-d ay speedy trial requirement rather than the motion for a psychologica l evaluation. On December 3, the government filed a motio n to exclude from the speedy trial period the twelve days from November 20 until December 2. The gov ernment also filed a motion for

a psychological examination of E.S. At a hearing on all motions on December 5, the district court ordered a psychological evaluation, noting E.S.’s counsel ha d raised competency issues. On February 3, 1998, the district court received th e evaluation and denied E.S.’s motion to dismi ss. At the adjudication hearing scheduled f o r February 6, E.S. entered a conditional guilty plea reserving his right to appeal the speedy trial issue. In his appeal, E.S. co ntends he was not brought to trial within thirty days of his detention as required by 18 U.S.C. § 5036. Section 5036 states: If an alleged delinquent who is in detent ion pending trial is not brought to trial w ithin thirty days from the date upon which such detention wa s beg un, the information shall be dismissed on motion of the allege d delinquent or at the direction of the court, unless the Attorney Genera l shows that additional d elay was caused by the juvenile or his counsel, or consented to by the juvenile and his counsel, or would be in the interest of justice in the particular case. 18 U.S.C. § 5036 (1994).-3-

Like the district court, we conclude E.S. was brought to trial within thirty days of his dete ntion when delays excludable under § 5036 are not counted. E.S.’ s December 2 motion to dismiss tolled the speedy trial period until the December 5 hearing a s a delay “caused by the juvenile or his counsel.” Id. ; see United States v

. Eric B. , 86 F.3d 869, 875 (9th Cir. 1996). The time from December 5 to February 3 for E.S.’s psychological evaluation is properly excluded as a delay “in the interest of justice.” 18 U.S.C. § 5036; see United States v. Cheyenne , 558 F.2d 902, 907-08 (8th Cir. 1977). Accordingly, even if the thirty-day spe edy trial period began on November 6 as E.S. asserts, only twenty-eight days elapsed before the adjudication hearing o n Feb ruary 6. Further, the twelve days between November 20 and December 2 ar e excludable as delay caused by E.S.’s counsel since counsel requested that time t o prepare a m otion for a psychological evaluation and then filed a motion to dismis s instead. See Eric B. , 86 F.3d at 875.

We thus affirm the denial of E.S.’s motion to dismiss. A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.