REVISED, June 12, 1998

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-10520

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL DEE BLEVINS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Texas

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May 20, 1998

Before REAVLEY, JONES, and BENAVIDES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

The issue on appeal is whether the district court erred

in dismissing appellant Michael Dee Blevins’s case without

prejudice for violation of the Speedy Trial Act, 18 U.S.C. § 3161

et. seq. We hold that the court did not abuse his discretion and,

accordingly, AFFIRM. However, we take this opportunity to remind

the district courts that in order for this court to conduct a

meaningful review, district courts are required to articulate their
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reasons pursuant to the Speedy Trial Act for dismissal of an

indictment either with or without prejudice.

FACTUAL BACKGROUND

On March 2, 1995, a Texas state trooper observed a car

weaving across the center line into oncoming traffic and heading

toward his patrol car. To avoid being hit, the trooper was forced

to veer off the highway. After avoiding the collision, he turned

his patrol car around to pursue the out-of-control car. At that

point, the car again crossed the center line and collided head on

with a pick up truck. After the accident, the driver, appellant

Michael Dee Blevins, was arrested and taken to jail. While being

escorted to jail, hundreds of loose pills, capsules, and tablets

began to fall from Blevins’s pockets. The authorities discovered

him to be in possession of many prescription medications for which

he did not have a prescription. Further testing indicated that at

the time of the accident, Blevins’s blood contained many of the

prescription drugs in his possession. At the time of his arrest,

Blevins, a pharmacist, was on probation for knowingly failing to

keep pharmaceutical records, an offense to which he pleaded guilty

in February 1995. 

Blevins was indicted on May 16, 1995 on four counts of

possession of controlled substances. He made an initial appearance

on June 1, 1995, and the case was set for trial on July 3, 1995.

The Government moved to dismiss the indictment on November 3, 1995
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for noncompliance with the Speedy Trial Act; the court granted the

motion to dismiss without prejudice. 

The Government reindicted Blevins on July 9, 1996.

Blevins made an initial appearance on July 11, 1996, and his trial

was set for October 7, 1996. There were no motions filed in the

case after Blevins’s initial appearance until, on October 1, 1996,

Blevins filed a motion to dismiss the indictment with prejudice for

noncompliance with the Speedy Trial Act. The district court

granted Blevins’s motion to dismiss without prejudice on October

18, 1996. 

On November 19, 1996, Blevins was again indicted on four

counts of possession of controlled substances; trial was scheduled

for January 6, 1997. On December 18, 1996, Blevins again filed a

motion to dismiss the indictment for noncompliance with the Speedy

Trial Act and the Sixth Amendment and also requested the district

court to reconsider its prior dismissal of the indictment without

prejudice on October 18, 1996. The district court denied Blevins’s

motion to dismiss as well as the motion for reconsideration. 

After entering into a plea arrangement with the

Government, Blevins pleaded guilty to one possession count on

January 23, 1997. He timely appealed the issue of whether the

district court erred in dismissing the indictment without prejudice

in October 1996.
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DISCUSSION
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Both paries agree that the district court properly

dismissed the indictment on October 18, 1996 for noncompliance with

the Speedy Trial Act. What they dispute is whether the district

court erred in dismissing the indictment without prejudice rather

than barring reprosecution by the Government. 

We review a district court’s decision to dismiss an

indictment without prejudice for noncompliance with the Speedy

Trial Act for an abuse of discretion. See United States v. Taylor,

487 U.S. 326, 342-43 (1988). In determining whether a dismissal of

an indictment for noncompliance with the Speedy Trial Act should be

with or without prejudice, the district court at least must

consider (1) the seriousness of the offense, (2) the facts and

circumstances of the case which led to the dismissal, and (3) the

impact of a reprosecution on the administration of the Speedy Trial

Act and on the administration of justice. See 18 U.S.C. §

3161(a)(2); Taylor, 487 U.S. at 332-33. The defendant has the

burden of proving that dismissal of his case pursuant to these

factors is appropriate. See United States v. Melguizo, 824 F.2d

370, 372 & n.11 (5th Cir. 1987) (relying on 18 U.S.C. §

3162(a)(2)), cert. denied, 487 U.S. 1218 (1988).

A district court is not required to dismiss an indictment

with prejudice for every violation of the Speedy Trial Act. See

Taylor, 487 U.S. at 342. “[T]he decision whether to dismiss a

complaint under the Speedy Trial Act with or without prejudice is

entrusted to the sound discretion of the district judge and . . .
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no preference is accorded to either kind of dismissal.” Melguizo,

824 F.2d at 371 (internal quotations omitted). Although not as

harsh a sanction as dismissal with prejudice, dismissal without

prejudice is meaningful because it, inter alia, forces the

Government to obtain a new indictment if it decides to reprosecute

as well as exposes the prosection to dismissal on statute of

limitations grounds. See Taylor, 487 U.S. at 342.

Although the district court failed to articulate its

reasons pursuant to the statute for dismissing Blevins’s indictment

without prejudice, neither party has commented on this point in its

brief. Without question, the district court should have

articulated its reasons for doing so: 

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. Only then can an

appellate court ascertain whether a district court has

ignored or slighted a factor that Congress has deemed

pertinent to the choice of remedy, thereby failing to act

within the limits prescribed by Congress.

Taylor, 487 U.S. at 336-37. However, the fact that the district

court neglected to articulate its reasons for dismissal without

prejudice does not mandate that we remand to the district court

for it to do so. See United States v. Jones, 887 F.2d 492, 495

(4th Cir. 1989), cert. denied, 493 U.S. 1081 (1990). Where, as

here, the record is sufficient for us to make a determination of

whether the district court abused its discretion by dismissing

Blevins’s case without prejudice, we will “undertake more sub-
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stantive scrutiny to ensure that the judgment is supported in terms

of the factors identified in the statute.” Taylor, 487 U.S. at

337; Jones, 887 F.2d at 495. 

From this perspective, it is clear from the record that

the court properly opted to permit reprosecution in this case. The

offense for which Blevins was charged was a serious offense. After

using his position as a pharmacist illegally to obtain controlled

substances, he endangered the public by driving under the

influence. Moreover, he engaged in this criminal behavior while on

probation for another drug-related offense. The serious nature of

his offense coupled with his recidivism weighs in favor of

dismissal without prejudice. See United States v. Johnson, 29 F.3d

940, 946 (5th Cir. 1994). 

Regarding the facts and circumstances leading to the

dismissal, we look to whether the Government sought the resultant

delays for ulterior purposes as well as whether the Government’s

failure to meet deadlines was repetitive, regular, and frequent

with respect to this defendant. See Melguizo, 824 F.2d at 371-72.

With respect to the delay between Blevins’s appearance in July 1996

and his filing the motion to dismiss on October 1, 1996, Blevins

has not disputed the Government’s contention that the case was

assigned the earliest trial date that the district court had

available. He has provided this court with no factual support for

his assertion that the delay was sought for ulterior purposes or

that the Government regularly or frequently failed to meet
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deadlines in his case. He has failed to show that the

circumstances in his case weigh in favor of dismissal with

prejudice.

In evaluating the impact of a reprosecution on the

administration of the Speedy Trial Act and on the administration of

justice, we consider the defendant’s right to a timely trial; the

deterrent effect of a prejudicial dismissal on the Government’s

repeated violations of speedy trial requirements; and the public’s

interest in bringing Blevins to trial. See Johnson, 29 F.3d at

946. During the delay about which Blevins complains -- the period

between his second indictment on July 9, 1996 and the dismissal of

his case on October 18, 1996 -- Blevins filed nothing with the

district court until he sought dismissal of his indictment on

October 1, 1996. There is nothing in the record to indicate that

Blevins did anything to press his right to a speedy trial. See id.

(approving of a dismissal without prejudice for a defendant who,

although doing nothing actively to cause the delay, did not press

his right to a speedy trial). The record does not reflect that the

Government intentionally delayed the proceedings at any time; a

dismissal with prejudice for deterrent value would, therefore, be

inappropriate. The public has a great interest in bringing Blevins

to trial particularly in light of his illegal possession of

controlled substances despite his previous conviction. 

CONCLUSION
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The district court did not abuse its discretion in

dismissing Blevins’s indictment without prejudice. We AFFIRM the

judgment of the district court.