                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                               APR 7 1997
                                     TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 vs.                                                        No. 96-2046
                                                      (D.C. No. CR 95-552 LH)
 RODNEY LYNN ZARATE,
                                                               (D.N.M.)
           Defendant-Appellant.


                                  ORDER AND JUDGMENT*


Before BRORBY, EBEL, and KELLY, Circuit Judges.**


       Mr. Zarate appeals from the without prejudice dismissal of an indictment,

contending that the dismissal should have been with prejudice. The district court

dismissed the indictment based upon the government’s noncompliance with the “30 day

rule.” See 18 U.S.C. § 3161(b) (generally, information or indictment must be filed within

30 days from arrest or service of summons); Aplt. App. 18, 47. The district court’s


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
dismissal without prejudice under 18 U.S.C. § 3162(a)(1) is interlocutory and not an

appealable order. United States v. Tsosie, 966 F.2d 1357, 1361-62 (10th Cir.), cert.

denied, 506 U.S. 928 (1992).

      APPEAL DISMISSED.

                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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