*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

OCT 27 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PAUL BRADFORD JONES,

Defendant-Appellant.

No. 97-4153

(District of Utah)

(D.C. No. 97-CR-6-B)

ORDER AND JUDGMENT*

Before BRORBY, McKAY, and MURPHY, Circuit Judges. 

Following a series of superseding indictments, Paul Bradford Jones, was

ultimately charged in an eleven count indictment. Prior to trial, the indictment

against Jones was dismissed for violation of the Speedy Trial Act. The

indictment was dismissed without prejudice. Jones was subsequently reindicted

on all eleven counts contained in the dismissed indictment and, after a jury trial,

convicted on ten of those eleven counts. In this appeal, Jones asserts that the
1

Jones raises several other issues in his appeal. Because this court reverses

and remands to the district court for a redetermination on the Speedy Trial Act

issue, the other claims raised by Jones on appeal are not addressed herein. 

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district court erred when it dismissed the indictment against him without

prejudice.1

 This court has jurisdiction over this appeal from a final judgment

pursuant to 28 U.S.C. § 1291. After examining the briefs of the parties and the

pertinent parts of the record, we REVERSE and REMAND.

BACKGROUND

The relevant facts are as follows. Jones was arrested on January 26, 1995. 

Through a series of superseding indictments, culminating with the filing of a

Third Superseding Indictment on January 29, 1997, Jones was charged with three

counts of robbery in violation of 18 U.S.C. § 1951(a) (the “Hobbs Act”); three

counts of carrying or using a firearm in the course of those robberies in violation

of 18 U.S.C. § 924(c); three counts of bank robbery; one count of being a

restricted person in possession of a firearm in violation of 18 U.S.C. § 922(g);

and one count of tampering with a witness in violation of 18 U.S.C. § 1512(b)(1). 

On May 16, 1995, Jones filed a motion to suppress evidence discovered

during a warrantless search of a condominium unit. An evidentiary hearing on

Jones’s Motion to Suppress was held on July 17, 1995, before a United States

Magistrate Judge. The Magistrate Judge filed a Report and Recommendation on
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January 9, 1996. Jones filed an Objection to the Magistrate’s Report and

Recommendation on January 22, 1996. A hearing on the matter was held before

the district judge on April 4, 1996. A written order denying the Motion to

Suppress in part and granting it in part was entered on September 11, 1996. 

On March 6, 1997, four days before the commencement of his trial, Jones

filed a motion to dismiss all charges against him because of a violation of 18

U.S.C. § 1361 (the “Speedy Trial Act”). The district court granted Jones’s

motion and dismissed all charges against him for violation of the Speedy Trial

Act. The dismissal was without prejudice. Jones was reindicted on all eleven

counts pending against him at the time of the dismissal. He was convicted on ten

of the eleven counts after a jury trial. 

STANDARD OF REVIEW

This court has not been asked to review the district court’s

determination that a violation of the Speedy Trial Act occurred. The sole

question before this panel is whether the district court erred when it refused to

dismiss the indictment against Jones with prejudice. A district court's decision

to dismiss an indictment for violation of the Speedy Trial Act without prejudice

will be reversed only if the district court abused its discretion. See United States

v. Taylor, 487 U.S. 326, 335-336 (1988). This court reviews the application of

the legal standards of the Speedy Trial Act de novo and reviews the district
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court’s factual findings for clear error. See United States v. Pasquale , 25 F.3d

948, 950 (10th Cir. 1994). 

ANALYSIS

The Speedy Trial Act requires the trial of a defendant to commence within

seventy days from the filing date of the indictment or from the date on which the

defendant appears before a judicial officer of the court, whichever date is later. 

See 18 U.S.C. § 3161(c)(1). If a violation of the Speedy Trial Act occurs, the

indictment against the defendant must be dismissed. See id. § 3162(a)(2). The

district court, however, retains the discretion to dismiss the indictment either

with or without prejudice. See id. In determining whether to dismiss with or

without prejudice, a district court “shall consider, among others, each of the

following factors: 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. The

district court must consider each of the factors and its reasoning must be clearly

articulated. See Taylor , 487 U.S. at 336. 

While the total length of the delay between indictment and trial is not one

of the specifically enumerated factors, it is relevant to the district court’s

evaluation of at least two of the enumerated factors. First, when the district court

considers the seriousness of the offense with which the defendant has been
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charged, a correspondingly serious delay may justify a dismissal with prejudice. 

See United States v. Saltzman , 984 F.2d 1087, 1092-1093 (10th Cir. 1993). 

Second, when it considers the impact of reprosecution on the administration of

the Speedy Trial Act and on the administration of justice, the district court should

evaluate the prejudice suffered by the defendant from the delay. See id. at 1094. 

The length of the delay is a barometer of the prejudice suffered by the defendant. 

“The longer the delay, the greater the presumptive or actual prejudice to the

defendant, in terms of his ability to prepare for trial or the restrictions on his

liberty . . . .” Taylor , 487 U.S. at 340.

Although it may appear meaningless to dismiss an indictment without

prejudice, it is clear that a violation of the Act does not require dismissal with

prejudice. “If the greater deterrent effect of barring reprosecution could alone

support a decision to dismiss with prejudice, the consideration of the other

factors . . . would be superfluous, and all violations would warrant barring

reprosecution.” Id. at 342. Even a dismissal without prejudice may effectively

prevent the Government from reprosecuting if an applicable statute of limitations

has run. The impact of reprosecution on the administration of the Speedy Trial

Act and on the administration of justice is still only one factor to be considered. 

An evaluation of all the factors, however, may indicate the delay has been so

lengthy, the conduct of the Government so egregious, and the likelihood of
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reindictment so great that to dismiss without prejudice would effectively condone

the very conduct which the Speedy Trial Act was enacted to prevent. 

Thus, to adequately consider a motion to dismiss for violation of the

Speedy Trial Act, the district court should make a factual finding as to the actual

length of the delay. That finding is then employed twice. First, if the actual

delay exceeds seventy days, the indictment against the defendant must be

dismissed. Second, if the indictment is dismissed, the actual length of the delay

must be considered in evaluating the applicable factors to determine whether the

dismissal should be with or without prejudice. 

Certain periods of delay are excluded from the calculation of a Speedy

Trial Act violation. See 18 U.S.C. § 3161(h). Specifically, section 3161(h)(1)(F)

excludes “delay resulting from any pretrial motion, from the filing of the motion

through the conclusion of the hearing on, or other prompt disposition of, such

motion.” Id. § 3161(h)(1)(F). Also excluded is delay which is “reasonably

attributable to any period, not to exceed thirty days, during which any proceeding

concerning the defendant is actually under advisement by the court.” Id. §

3161(h)(1)(J). 

The district court in this case held, as a matter of law, that section

3161(h)(1)(J) of the Speedy Trial Act does not apply to magistrate judges. It

then ruled that until the district judge received all materials necessary to decide
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Jones’s Motion to Suppress, including the Magistrate’s Report and

Recommendation, the matter was not under advisement by the court and the

thirty-day period under section 3161(h)(1)(J) did not begin to run. Thus, the

district court concluded that the entire time Jones’s Motion to Suppress was

being considered by the Magistrate was excludable under section 3161(h)(1)(F). 

This court has since held that the Speedy Trial Act does apply to magistrate

judges and the time a motion is under advisement by a magistrate is subject to the

thirty-day limitation of section 3161(h)(1)(J). See United States v. Mora , 135

F.3d 1351, 1357 (10th Cir. 1998). 

Because the district court excluded the time Jones’s Motion to Dismiss was

under advisement by the Magistrate, it necessarily miscalculated the total amount

of time that had elapsed between Jones’s indictment and the date of his trial. The

court then used this incorrect factual finding when it considered the factors set

forth in section 1362(a)(2) and ruled that Jones’s indictment should be dismissed

without prejudice. A correct determination of the length of the delay is necessary

to properly evaluate the factors.

 CONCLUSION

The erroneous factual finding flowing from a legal error caused the district

court to fail to adequately consider all of the relevant factors outlined in section

316(a)(2) prior to dismissing the indictment without prejudice. A district court’s
2The United States has filed an unopposed motion to supplement the record

with several documents which apparently relate to Jones’s speedy trial claim. In

light of this court’s conclusion that the case be remanded to the district court for a

recalculation of the total length of the delay in light of the proper legal standard,

the motion to supplement the record is hereby DENIED as moot.

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failure to properly consider the statutory factors is an abuse of discretion. See

Taylor , 487 U.S. at 335. The district court, therefore, abused its discretion when

it dismissed the indictment against Jones without prejudice. 

Accordingly, we reverse the district court’s dismissal of the indictment

against Jones without prejudice and remand for a recalculation of the total length

of the delay and a redetermination, after consideration of all the statutory factors,

whether the indictment should be dismissed with or without prejudice. 2

ENTERED FOR THE COURT:

Michael R. Murphy

Circuit Judge