FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-10692 Plaintiff-Appellee,

D.C. No.

v.  CR-04-00217-MJJ

BEAU LEE LEWIS,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Northern District of California

Martin J. Jenkins, District Judge, Presiding

Argued and Submitted

August 14, 2007—San Francisco, California

Filed March 13, 2008

Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins,

and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw;

Dissent by Judge O’Scannlain

2415
COUNSEL

Dean D. Paik, San Francisco, California, for the defendant-appellant. 

Matthew J. McKeown, Assistant Attorney General, John

Smeltzer, Attorney, U.S. Department of Justice, Robert

Anderson, Attorney, U.S. Department of Justice and Todd

Aagaard, Attorney, U.S. Department of Justice, Washington,

D.C., for the plaintiff-appellee. 

OPINION

WARDLAW, Circuit Judge: 

Beau Lee Lewis appeals the district court’s decision to dismiss without prejudice his indictment for violation of the

Speedy Trial Act (“STA”), 18 U.S.C. § 3162(a)(2). On

Lewis’s prior appeal, we found that one discrete period of

pretrial delay had violated the STA, did not reach the other

asserted STA violations, and remanded for a determination of

whether the dismissal of the indictment should be with or

without prejudice. United States v. Lewis, 349 F.3d 1116,

1121 (9th Cir. 2003) (“Lewis I”). Lewis correctly contends

that the district court misconstrued the scope of our mandate

by considering only the one period of delay we found to violate the STA before dismissing the indictment without prejudice. 

The government re-indicted Lewis and the case proceeded

to trial for a second time. Lewis was again convicted. Lewis

appeals this second conviction based on various errors he

asserts the district court committed during his second trial.

We do not reach these various assertions of trial error

because, upon remand, the district court should consider the

effect of all of the improper periods of pretrial delay. Upon

2418 UNITED STATES v. LEWIS
thorough consideration and review, the district court may very

well determine that Lewis’s indictment should be dismissed

with prejudice, obviating the need for us to consider the

remaining contentions of error. We have jurisdiction to

review this appeal pursuant to 28 U.S.C. § 1291, and we

reverse and remand. 

I. BACKGROUND

A. The Importation of Protected Reptiles 

In 1994, the Fish and Wildlife Service constructed a fauxwildlife importation and wholesale business called “PacRim”

as part of an elaborate sting aimed at trapping prominent

Malaysian commercial wildlife dealer, Keng Liang “Anson”

Wong. Spearheading the investigation for the government was

Special Agent George Morrison, operating under the alias

“George Ross.” To establish a rapport with Wong, Morrison,

through the PacRim shell, purchased several legal shipments

of reptiles for importation to the United States. 

The government, however, had no need for the accumulating reptiles purchased from Wong and sought a purchaser for

the animals. To locate a buyer, PacRim took out an advertisement in the appropriately named Reptiles magazine. Beau Lee

Lewis, an eighteen year old aspiring herpetologist, read the

announcement and contacted Morrison in late 1995 to obtain

a price list for the reptiles for sale.

Over the next three years, Morrison and Lewis spoke frequently both over the phone and during Morrison’s visits to

the home of Lewis’s parents. Their relationship at first centered around the legal purchase and sale of reptiles. This

shifted, however, after Lewis questioned Morrison about

acquiring federally-protected gray’s monitor lizards. Gray’s

monitors, as well as the other reptiles involved here, are protected under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”), 27 U.S.T.

UNITED STATES v. LEWIS 2419
1087, T.I.A.S. No. 8249, as well as the Endangered Species

Act, 16 U.S.C. §§ 1531-1544 and the Lacey Act, 16 U.S.C.

§§ 3771-3378. Nearly three months later, Lewis let Morrison

know he had been in contact with Wong and was importing

reptiles through Malaysia. What began as the government’s

effort to unload legal reptiles onto Lewis thus mutated into a

conspiracy to violate federal wildlife and importation law

involving Lewis, Morrison and Wong. 

Lewis and Morrison set about devising plans whereby

Wong could directly send the protected reptiles to Lewis.

After consulting with other local reptile traders, who eventually were named co-conspirators in the scheme, the pair concluded that transport through Federal Express (“FedEx”)

provided the most efficient route. From December of 1997

through August of 1998, Wong shipped six FedEx packages

to Lewis containing scores of protected wildlife. 

The sting concluded in September of 1998 when Morrison

convinced a reluctant Wong to travel to Mexico City for a

meeting. Mexican officials arrested Wong upon his arrival

and incarcerated him pending extradition to the United States.

Lewis was indicted on July 8, 1998, and arraigned on October 1, 1998. 

B. Delays Before the First Trial 

Lewis’s first trial began on February 20, 2001 — two years,

four months, and nineteen days after his initial arraignment.

This total period of delay accumulated through a series of

smaller distinct periods of delay, nearly all of which occurred

over Lewis’s objection. 

At Lewis’s October 1998 arraignment, his first counsel,

Peter Robinson, requested that the case be declared complex

and sought additional time for trial preparation. At the same

hearing, the government alerted the district court that “the

2420 UNITED STATES v. LEWIS
main defendant, Mr. Wong, has been apprehended in Mexico.

He is represented by a U.S. attorney. He may waive extradition, so we may have him back here in the not too distant

future.” The court granted the continuance on the basis of

complexity, a ground that is excluded from inclusion in the

seventy-day time-frame in which a defendant’s trial must

begin under the STA. See 18 U.S.C. § 3161(h)(8). 

On February 11, 1999, Lewis notified the district court that

he was ready for trial, and requested his trial date to be set

within the seventy days mandated by the STA. 18 U.S.C.

§ 3161(c)(1). Wong, however, still had not been extradited

from Mexico. The government asked for an additional thirty

days to pursue that effort and the district court granted the

request over Lewis’s objection. The STA also excludes from

the seventy day time-frame a reasonable period of delay when

a defendant is joined for trial with a co-defendant. See 18

U.S.C. § 3161(h)(7). 

A month later, on March 18, 1999, Lewis asked the court

to set April 19, 1999 as the trial date. Government counsel

objected to the date, stating to the court that he “can’t predict

how quickly [the officials handling Wong’s extradition] are

going to move. I can only indicate to the court that they have

been very quick in resolving the status of his extraditability to

this country.” The court set June 7, 1999 as the trial date, with

pre-trial motions to be heard on May 6, 1999. 

On April 15, 1999, the government filed another motion for

continuance on the basis that Wong had still not been extradited. Lewis objected and argued that the government had

shown repeated inaccuracy as to the speed with which Wong

could be extradited. To jump-start the trial, Lewis informed

the court that he would be willing to stipulate to essentially

all the complex factual and legal issues related to Wong so

that it would be unnecessary to try the two defendants

together. 

UNITED STATES v. LEWIS 2421
At the same time, the government filed an additional

motion requesting permission to present Morrison’s testimony

non-sequentially. The STA excludes delay “resulting from

any pretrial motion.” 18 U.S.C. § 3161(h)(1)(F). This motion

would remain pending for twenty months. 

During a May 6, 1999 hearing, the court granted the government’s motion for continuance, and re-scheduled the trial

for September 20, 1999. The court granted this motion on the

bases of complexity and Wong’s continuing absence. 

The government filed a second superseding indictment on

June 14, 1999, joining two co-conspirators as defendants. The

addition of these co-defendants resulted in an additional delay

of the trial, and on August 11, 1999, the court granted a further continuation on that basis. The court granted this continuation over the objection of Lewis’s counsel, who informed the

court that he would be moving on August 1, 2000 to the Netherlands to begin work with the International War Crimes Tribunal. Further delay, he warned the court, might force him to

withdraw as counsel. 

The court at this time also declined to hear an oral motion

by Lewis to sever his trial from his co-defendants, requesting

written motion papers instead. On December 27, 1999, Lewis

complied by filing a written motion to sever. The district

court rejected the motion and re-scheduled the trial for July 3,

2000. 

That following May, one of the co-defendants submitted a

motion to continue the trial for sixty days. Lewis objected and

renewed his motion to sever, in part because of his counsel’s

impending move to Europe. On June 8, 2000, the court heard

the motions, denied Lewis’s motion to sever and granted the

continuance. Lewis’s counsel withdrew from the case. Without the years of background and preparation possessed by the

first counsel, Lewis’s new attorney requested additional time

2422 UNITED STATES v. LEWIS
to organize himself for trial. The new trial date was set for

January 22, 2001. 

The government successfully extradited Wong on August

30, 2000. He subsequently pleaded guilty and agreed to cooperate with the government against Lewis. 

Lewis moved to dismiss the indictments due to violations

of the STA. The court denied the motion, finding that only

twenty eight days between the arraignment and the motion

were not properly excludable under the statute. Of the two

years Lewis spent waiting for trial to that point, the court

found twenty months excludable under the statute due to the

government’s pending motion to allow Agent Morrison to testify non-sequentially. 

C. The First Trial 

The first trial began on February 20, 2001. Lewis was convicted on various counts and sentenced to a total of thirty-six

months incarceration and three years supervised release. 

D. The First Appeal 

Lewis appealed his conviction on multiple grounds, including the district court’s denial of his motion to dismiss the

indictment for violation of the STA. Lewis argued that the

court improperly excluded periods of time from the STA calculus. Among other periods, Lewis directed our attention to

a 117-day period between January 13 and May 9, 2000 when

the pendency of the government’s motion to allow Morrison

to testify non-sequentially purportedly lawfully delayed the

trial. 

We found that the 117-day period alone was sufficient to

hold that Lewis’s rights under the STA had been violated.

Lewis I, 349 F.3d at 1121. We reasoned that the continuation

of the trial date delayed the resolution of the motion, rather

UNITED STATES v. LEWIS 2423
than the motion having delayed the commencement of the

trial. For that reason, exclusion under the STA was improper.

Id. (“[W]here it is clear that the delay in the trial caused the

delay in the hearing, rather than the other way around, and

where the defendant repeatedly asked the court to set the case

for trial and was otherwise ready to proceed to trial, the government’s pending (and relatively unimportant) pretrial

motion could not serve as a basis for exclusion . . . .”)

(emphasis in original). 

We expressly did not consider any other period of excluded

time because the 117-day period was sufficient to find a violation of the STA. Id. at 1122 n.9 (“Lewis brings other Speedy

Trial Act challenges as well, which, because we reverse on

this § 3161(h)(1)(F) ground, we do not reach.”). We vacated

Lewis’s sentence, dismissed his indictment and remanded the

case to the district court to determine whether dismissal

should be with or without prejudice. Id. at 1121-22. Before

doing so, we noted that the “delay had substantial prejudicial

effect on the defendant, who was, as a result, deprived of his

right to be represented by counsel of his choice.” Id. at 1121

n.8. 

E. The District Court Dismisses Without Prejudice 

On April 29, 2004, upon remand, the district court considered whether the STA violations before Lewis’s first trial

required his indictment to be dismissed with or without prejudice. The STA enumerates factors for a court to consider in

making such a determination. 18 U.S.C. § 3162(a)(2). These

factors include “among others” the “seriousness of the

offense; the facts and circumstances of the case which led to

the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.”

Id.

After considering argument from counsel, the district court

weighed these factors. In assessing the degree of prejudice

2424 UNITED STATES v. LEWIS
suffered by Lewis, the court determined the period of delay

it should consider and concluded the amount of time to be

“117 days at the outside” corresponding to the period we

found sufficient to find a STA violation. Lewis’s counsel

requested the court to “make a finding, a specific finding as

to the other grounds that [he had] raised about excludable

delay” including other periods that this court had not reached

in our earlier decision. The court declined to do so, stating

that the “Ninth Circuit made its decision. That’s the record.

I’m not looking behind that.” The district court dismissed the

indictment without prejudice. 

F. The Second Trial 

With the indictment being dismissed without prejudice, the

government then sought to re-indict Lewis. On June 24, 2004,

a federal grand jury returned a second indictment against

Lewis. This indictment was superseded on October 21, 2004,

adding allegations related to sentencing. 

After the case proceeded to a second trial, the jury found

Lewis guilty on six counts. The district court sentenced him

to twenty-three months in prison. 

II. DISCUSSION

[1] An STA violation requires the dismissal of the indictment upon the defendant’s motion. 18 U.S.C. § 3162(a)(2).

Whether to dismiss with or without prejudice is left to the

“guided discretion of the district court.” United States v. Taylor, 487 U.S. 326, 334-35 (1988). The statute does not prefer

one remedy to the other. Id. The STA enumerates three factors, “among others,” that must be considered in deciding

whether to dismiss with or without prejudice: “seriousness of

the offense; the facts and circumstances of the case which led

to the dismissal; and the impact of a reprosecution on the

administration of this chapter and on the administration of

justice.” 18 U.S.C. § 3162(a)(2). The Supreme Court has held

UNITED STATES v. LEWIS 2425
that by use of the phrase “among others,” Congress intended

prejudice to the defendant to be a fourth factor weighed by the

district court. Taylor, 487 U.S. at 333-34. We have likewise

recognized that “the sheer length of the period involved” can

weigh toward a dismissal with prejudice. United States v.

Clymer, 25 F.3d 824, 831-32 (9th Cir. 1994). 

[2] The district court erred by incorrectly reading Lewis I

as limiting its review to the discrete 117-day period that we

found sufficient to violate the STA. On Lewis’s first appeal,

we did not find it necessary to reach the other periods of delay

that Lewis argued were unexcludable under the STA. Lewis

I at 1122 n.9. Lewis, however, was entitled upon remand to

a full consideration of all periods of nonexcludable delay during the district court’s prejudice determination. The district

court’s misconstruction of our mandate led to a failure to consider all improperly excluded periods, which, in turn, prevented it from accurately and carefully weighing the statutory

factors provided by Congress.1See Taylor, 487 U.S. at 336

(“Where, as here, Congress has declared 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.”).

Necessarily, if the district court finds other periods to be

unexcludable, the STA calculus will change. This could very

well tilt the balance toward dismissing the indictment with

prejudice. If the district court determines the other periods to

be excludable, it should make clear findings as to the statutory

1Our respected colleague in his dissent needlessly erects a strawman

merely to knock it down. The dissenting opinion mischaracterizes our

holding to embrace a statutory construction requiring a “calculation of the

precise number of days by which the Act was violated.” To the contrary,

all we hold was that by its constrained reading of our prior holding in this

case, the district court failed to consider the prejudice flowing from other

periods of pre-trial delay, contrary to Supreme Court precedent. See Taylor, 487 U.S. at 333-34 (“[T]here is little doubt that Congress intended

[prejudice] to be relevant for a district court’s consideration.”) 

2426 UNITED STATES v. LEWIS
bases for their exclusion to enable us to conduct meaningful

appellate review.

III. CONCLUSION

We remand to the district court to review the entirety of the

pre-trial delay suffered by Lewis and to make specific findings as to which periods are excludable under the STA. In our

view, these additional periods of delay may have exacerbated

the prejudice to Lewis, only one aspect of which — loss of

original trial counsel — we mentioned in Lewis I. Only after

making clear and specific findings as to excludability may the

district court then turn to weighing the statutory factors in

assessing whether to dismiss the second indictment with or

without prejudice. If the district court again dismisses the

indictment without prejudice, we will consider Lewis’s other

claims of error. We therefore retain jurisdiction over this

appeal. 

REVERSED and REMANDED.

O’SCANNLAIN, Circuit Judge, dissenting: 

After acknowledging that a Speedy Trial Act violation had

occurred, the trial judge quite properly dismissed the indictment against Beau Lee Lewis without prejudice, weighing

each factor the Act requires. Today, the court holds that the

district court abused its discretion because it failed to calculate the precise number of days by which the Act was violated

and that such failure “prevented it from accurately and carefully weighing the statutory factors provided by Congress.”

Maj. Op. at 2426. Because I do not believe that any such

requirement is imposed by the Act or by any of our precedents I respectfully dissent. 

UNITED STATES v. LEWIS 2427
I

The Speedy Trial Act requires that a defendant’s trial begin

within 70 days of his indictment, or the date of his first

appearance before a judicial officer, whichever is later. 18

U.S.C. § 3161(c). Other provisions of the Act, however, provide exceptions under which certain delays may be excluded

from this 70-day limit in appropriate circumstances. Id.

§ 3161(h). As the majority notes, in this case over two-and-ahalf years elapsed between Lewis’s indictment and the date of

his first trial, in which he was convicted. Lewis appealed, and

in United States v. Lewis, 349 F.3d 1116 (9th Cir. 2003) (per

curiam) (“Lewis I”), we reversed his convictions, holding that

the Speedy Trial Act had been violated because at least 117

days between Lewis’s indictment and his trial were not

excludable under the Act. We remanded to the district court

to determine whether to dismiss Lewis’s indictment with or

without prejudice. Id. at 1121-22. 

In Lewis I, Lewis had argued that the district court erred in

finding that multiple portions of the delay between his indictment and trial were excludable under the Act. We held that

the district court erred in finding at least one of these periods

excludable—the 117 days between January 13, 2000 and May

9, 2000, when the government’s pending motion to present a

witness’s testimony non-sequentially was the sole basis for

delay. Id. at 1120. As a consequence, we declined to reach the

question of whether any other periods were excludable

because such period alone was sufficient to establish a Speedy

Trial Act violation. Id. at 1122 n.9. 

In this appeal, Lewis argues that on remand the district

court was required to reach the other period contentions to

determine whether to dismiss the indictment against him with

or without prejudice under the guidance the Act provides, see

18 U.S.C. § 3162(a)(2), and the majority agrees. Such a conclusion not only contravenes the statute’s plain text, I suggest

2428 UNITED STATES v. LEWIS
it transforms the statutory standard of review from abuse of

discretion to de novo. 

II

When a Speedy Trial Act violation has occurred, the court

must determine whether to dismiss the indictment against the

defendant with or without prejudice by “consider[ing], among

others, each of the following factors: the seriousness of the

offense; the facts and circumstances of the case which led to

dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.” 18

U.S.C. § 3162(a)(2). I agree with the majority that the

Supreme Court has explained that Congress intended “the

presence or absence of prejudice to the defendant” to be a

fourth factor relevant to this determination. United States v.

Taylor, 487 U.S. 326, 334 (1988). But the Act gives “neither

remedy . . . priority,” id. at 335, and Congress has left the

decision to dismiss with or without prejudice “to the guided

discretion of the district court,” id. (emphasis added). 

While § 3162(a)(2) provides a non-exclusive list of factors

the district court may consider, it contains no express requirement that the court calculate the precise number of days that

were or were not excludable under the Act before deciding

whether to dismiss with or without prejudice, nor do our precedents set forth any such rule. The majority attempts to

bridge this gap by noting that we have “recognized that ‘the

sheer length of the period involved’ can weigh toward a dismissal with prejudice.” Maj. Op. at 2426 (quoting United

States v. Clymer, 25 F.3d 824, 831-32 (9th Cir. 1994))

(emphasis added). This observation is, of course, unassailable.

A longer period of delay will weigh in favor of dismissal with

prejudice in many, if not all cases. Yet § 3162(a)(2) enumerates other factors which a district court must consider, and our

prior cases do not portend the rule the majority announces

today, that a district court’s “failure to consider all improperly

UNITED STATES v. LEWIS 2429
excluded periods” is enough to constitute an abuse of discretion in applying § 3162(a)(2). Maj. Op. at 2426. 

Indeed, in Clymer we referred to the total number of days

(excludable and non-excludable) between the defendant’s

indictment and his trial in stating that the “sheer length” of

this total period “weigh[ed] heavily in favor of a dismissal

with prejudice.” 25 F.3d at 831-32. But we expressly declined

to make the distinction between excludable and nonexcludable days which the majority now determines is

required. Rather, after holding that the Speedy Trial Act had

been violated, we simply remanded to the district court without unnecessary further calculations. 25 F.3d at 832 (“Even

giving the government the benefit of every doubt, about five

months of this period was not excludable under the Act. Were

we forced to decide how much of the delay is actually excludable, we might conclude that the non-excludable delay is considerably more than that.”) (emphasis added). Thus, our

decision in Clymer firmly supports the conclusion that

§ 3162(a)(2) does not require a calculation of the total number

of excludable and non-excludable days before a court may

decide whether to dismiss with or without prejudice. As such,

I believe the district court cannot abuse its discretion by failing to recite such calculations. 

The majority notes that on remand, Lewis asked the district

court to make specific findings as to whether each period of

delay he challenged was excludable under the Act, Maj. Op.

at 2425, and labels the district court’s failure to do so a “misconstruction of our mandate” in Lewis I, id. at 2426. But the

trial judge made precisely such findings before Lewis’s first

trial, deeming all such periods excludable. In Lewis I, we held

that the district court erred with respect to one 117-day

period, but we never implied that this error tainted its findings

with respect to the other periods. As such, I do not believe it

was necessary for the trial judge to reconstruct its prior work

on remand. Indeed, such an exercise would be redundant.

When Lewis requested that the district court reissue specific

2430 UNITED STATES v. LEWIS
findings on these other periods, the court acknowledged its

previous conclusions and declined to revisit them. I find nothing in the Speedy Trial Act or our decision in Lewis I to prohibit such a course of action. 

Since § 3162(a)(2) does not require the calculation the

majority demands, the next question is whether the district

court abused its discretion in weighing the statutory factors.

III

A

Section 3162(a)(2) lists three factors, “among others,”

which a court must consider in deciding whether to dismiss an

indictment with or without prejudice, and the Supreme Court

has held that prejudice is a fourth. Taylor, 487 U.S. at 334. As

I view the record in this case, the district court considered

each of these factors at length. It first acknowledged that

Lewis was prejudiced as a result of the delay. Specifically, the

district court explained that Lewis lost the opportunity to be

represented by the counsel of his choice when his first attorney withdrew to accept a position with the International War

Crimes Tribunal in the Netherlands after the 117-day nonexcludable delay had occurred. The district court appropriately defined the right to one’s counsel of choice as a “hallmark of our system of justice” and reasoned that Lewis’s loss

weighed in favor of dismissal with prejudice. 

And then it considered the other § 3162(a)(2) factors. As

such, the district court examined the severity of the offenses

with which Lewis was charged: one count of money laundering in violation of 18 U.S.C. § 1956, two counts of conspiracy

in violation of 18 U.S.C. § 371, six counts of smuggling merchandise into the United States in violation of 18 U.S.C.

§ 545, and nine counts of illegal importation and false labeling of wildlife in violation of 16 U.S.C. § 3372. Noting that

a conspiracy requires the assistance of multiple parties, that

UNITED STATES v. LEWIS 2431
the smuggling conduct with which Lewis was charged contravened international treaties, and that a high number of animals

were involved in Lewis’s scheme, the district court determined that this combination of offenses was “serious” and

that their severity weighed in favor of dismissal without prejudice. 

Finally, the district court considered the third factor: the

impact of a reprosecution on the administration of the Speedy

Trial Act and the administration of justice. In reasoning that

such factor weighed in favor of dismissal without prejudice,

the district court noted two important facts: First, Lewis was

not incarcerated during the time of pretrial delay and, second,

Lewis was charged with playing a central, rather than a

peripheral, role in the crimes alleged. 

B

The district court balanced the prejudice Lewis suffered

against the consequences of reprosecution and the severity of

his offenses and concluded that a dismissal without prejudice

was the appropriate remedy. Based on the record before us, I

cannot conclude that the district court abused its discretion in

reaching such a decision. It considered each factor enumerated in § 3162(a)(2) with care. The offenses with which Lewis

was charged, money laundering, conspiracy, smuggling, and

illegal importation and false labeling of wildlife, are indeed

serious offenses in their own right and are even more so when

combined. In addition, it reasonably concluded that the consequences of reprosecution would not be severe. The district

court was guided by Clymer, where we determined that the

consequences of reprosecution weighed in favor of dismissal

with prejudice where the defendant was “incarcerated for the

entire pretrial period.” 25 F.3d at 832. Lewis, on the other

hand, has remained out of prison for the duration. The defendant in Clymer as a “relatively minor figure” in the criminal

enterprise alleged in that case, id. at 826, whereas Lewis was

charged as a central player here. In such circumstances, I

2432 UNITED STATES v. LEWIS
believe the district court was well within its discretion to conclude that reprosecution would not conflict with the ends of

justice. 

Of course, the district court acknowledged that Lewis suffered prejudice from the loss of his counsel of choice and that

this factor weighed in favor of dismissal with prejudice. Yet

the majority seems to conclude that the district court’s failure

to quantify the precise number of days which were not

excludable under the Act caused it to undervalue the degree

of prejudice Lewis suffered. I simply cannot discern what relevance this calculation would have had in the district court’s

analysis. The prejudice Lewis suffered was a direct result of

the 117-day delay. Whether or not other periods were also

non-excludable would neither have added to nor subtracted

from this harm. Without the 117-day delay, Lewis’s trial

would have begun before the date his counsel departed. 

While the loss of his first attorney is not the only prejudice

Lewis alleges (the general burden of an indictment looming

over one’s head is not to be discounted), it is certainly his

greatest. Because the addition of other non-excludable periods

would not have added to this harm, I cannot conclude that the

district court abused its discretion in failing to perform additional calculations, nor can I conclude that it abused its discretion in finding that the prejudice Lewis suffered was not so

great as to overwhelm the minimal consequences of reprosecution and the severity of Lewis’s offenses. 

Lewis was granted a continuance to allow his new counsel

to prepare for trial. He was charged as a central figure in the

commission of serious offenses, and was not incarcerated during the pre-trial delay. The district court explained as much in

a reasoned decision, considering all factors required by

§ 3162(a)(2). In this area of the law, we do not engage in de

novo review; I cannot conclude that the bounds of discretion

were exceeded here. 

UNITED STATES v. LEWIS 2433