* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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 Sp eedy Trial Act. The indictment was dismissed without prejudice. Jones was subsequently reindicted on all eleven counts contained in the dismissed ind ictment and, after a jury trial, convicted on ten of those eleven counts. In this appeal, Jones asserts that the1 Jones raises several other issues in his appeal. B ecause 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 a re not addressed herein. -2- district court erred when it dismissed the indictme nt 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 arres ted on January 26, 1995. Through a series of superseding indictments, culmin ating with the filing of a Third Superseding Indictment on January 29, 1997, J ones 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 vio lation of 18 U.S.C. § 922(g); and one count of tampering with a witness in violat ion of 18 U.S.C. § 1512(b)(1). On May 16, 1995, Jones filed a motion to suppress e vidence discovered during a warrantless search of a condominium unit. An evidentiary hearing on Jones’s Motion to Suppress was held on July 17, 199 5, before a United States Magistrate Judge. The Magistrate Judge filed a Rep ort and Recommendation on-3-

January 9, 1996. Jones filed an Objection to the M agistrate’s Report and Recommendation on January 22, 1996. A hearing on t he matter was held before the district judge on April 4, 1996. A written ord er denying the Motion to Suppress in part and granting it in part was entere d on September 11, 1996. On March 6, 1997, four days before the commencementof his trial, Jones filed a motion to dismiss all charges against him b ecause of a violation of 18 U.S.C. § 1361 (the “Speedy Trial Act”). The distri ct court granted Jones’s motion and dismissed all charges against him for vi olation of the Speedy Trial Act. The dismissal was without prejudice. Jones w as reindicted on all eleven counts pending against him at the time of the dismi ssal. 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 distric t 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 t he application of the legal standards of the Speedy Trial Act de novo and reviews the district-4-

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 defend ant to commence within seventy days from the filing date of the indictmentor 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 Spe edy 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 impactof a reprosecution on the administration of this chapter and on the administration of justice.” Id . The district court must consider each of the factors an d its reasoning must be clearly articulated. See Taylor , 487 U.S. at 336. While the total length of the delay between indictm ent and trial is not one of the specifically enumerated factors, it is relev ant to the district court’s evaluation of at least two of the enumerated factor s. First, when the district court considers the seriousness of the offense with which the defendant has been-5-

charged, a correspondingly serious delay may justif y 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 reprosecuti on on the administration of the Speedy Trial Act and on the administration of j ustice, 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 preju dice 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 t rial or the restrictions on his liberty . . . .” Taylor , 487 U.S. at 340. Although it may appear meaningless to dismiss an in dictment without prejudice, it is clear that a violation of the Act does not require dismissal with prejudice. “If the greater deterrent effect of bar ring reprosecution could alone support a decision to dismiss with prejudice, the c onsideration of the other factors . . . would be superfluous, and all violati ons would warrant barring reprosecution.” Id. at 342. Even a dismissal without prejudice may ef fectively prevent the Government from reprosecuting if an app licable statute of limitations has run. The impact of reprosecution on the admini stration of the Speedy Trial Act and on the administration of justice is still o nly one factor to be considered. An evaluation of all the factors, however, may indi cate the delay has been so lengthy, the conduct of the Government so egregious , and the likelihood of-6-

reindictment so great that to dismiss without preju dice would effectively condone the very conduct which the Speedy Trial Act was ena cted to prevent. Thus, to adequately consider a motion to dismiss fo r 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 fac tors to determine whether the dismissal should be with or without prejudice. Certain periods of delay are excluded from the calc ulation 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 o f law, that section 3161(h)(1)(J) of the Speedy Trial Act does not appl y to magistrate judges. It then ruled that until the district judge received a ll materials necessary to decide-7-

Jones’s Motion to Suppress, including the Magistrat e’s Report and Recommendation, the matter was not under advisementby the court and the thirty-day period under section 3161(h)(1)(J) did n ot 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 u nder section 3161(h)(1)(F). This court has since held that the Speedy Trial Actdoes 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 indictmentand 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 rel evant factors outlined in section 316(a)(2) prior to dismissing the indictment withou t prejudice. A district court’s2 The United States has filed an unopposed motion to supplement the record

with several documents which apparently relate to J ones’s speedy trial claim. In light of this court’s conclusion that the case be r emanded to the district court for a recalculation of the total length of the delay in l ight of the proper legal standard, the motion to supplement the record is hereby DENIED as moot. -8- 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 p rejudice. Accordingly, we reverse the district court’s dismis sal of the indictment against Jones without prejudice and remand for a re calculation 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