UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.

BENJAMIN HARDEN; DOROTHY M.
HARDEN; PHYLLIS HARDEN; TRACIE
ARCHIE; GWEN ARCHIE, a/k/a Gwen
                                                               No. 97-4791
Archer; BRANDON BURTON, a/k/a
Bowlegs; LANCE COURTNEY;
FREDERICK ETHEREDGE; ANTONIO
MILLER; WILLIE SLIGH; CHRIS
SUMTER; KENYA THOMPSON; KEVIN
WRIGHT,
Defendants-Appellees.

Appeal from United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CR-97-545)

Argued: April 9, 1998

Decided: June 26, 1998

Before ERVIN, Circuit Judge, BUTZNER, Senior Circuit Judge,
and STAMP, Chief United States District Judge
for the Northern District of West Virginia,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Jon Rene Josey, United States Attorney, Columbia, South
Carolina, for Appellant. William Glenn Yarborough, III, Greenville,
South Carolina, for Appellees. ON BRIEF: Scarlett A. Wilson,
Assistant United States Attorney, Columbia, South Carolina, for
Appellant. Mark R. Calhoun, Lexington, South Carolina; Gregory P.
Harris, Columbia, South Carolina, for Appellee Dorothy Harden;
Debra Y. Chapman, Columbia, South Carolina, for Appellee Phyllis
Harden; Susan Z. Hitt, Columbia, South Carolina, for Appellee Tracie
Archie; Louis H. Lang, Columbia, South Carolina, for Appellee
Gwen Archie; I.S. Leevy Johnson, Columbia, South Carolina, for
Appellee Burton; James P. Rogers, Columbia, South Carolina, for
Appellee Courtney; Herbert W. Louthian, Jr., Columbia, South Caro-
lina, for Appellee Etheredge; Creighton B. Coleman, Winnsboro,
South Carolina, for Appellee Miller; Cameron B. Littlejohn, Jr.,
Columbia, South Carolina, for Appellee Sligh; Jonathan M. Harvey,
Columbia, South Carolina, for Appellee Sumter; Ed Holler, Colum-
bia, South Carolina, for Appellee Thompson; W. Rhett Eleazer,
Columbia, South Carolina, for Appellee Wright.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The United States appeals an order of the district court dismissing
with prejudice, because of a violation of the Speedy Trial Act, the
indictment of appellees Benjamin Harden, Dorothy Harden, Phyllis
Harden, Tracie Archie, Gwen Archie, Brandon Burton, Lance Court-
ney, Frederick Etheredge, Antonio Miller, Willie Sligh, Chris Antwan
Sumter, Kenya Thompson, and Kevin Wright. Finding no error in the
district court's opinion, we affirm.

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I.

On July 1, 1997, federal arrest warrants were issued charging each
of the appellees with various drug law violations. On July 7, 1997,
United States Magistrate Judge Bristow Marchant conducted a deten-
tion hearing for all of the appellees and denied bond to nine of them.
On July 16, 1997, the government filed an ex parte motion for a con-
tinuance and submitted a proposed order to the court. The government
premised its motion on the involvement in another trial of the Assis-
tant United States Attorney who was assigned to the case and con-
tended that this preoccupation necessitated an extension beyond the
thirty days prescribed by the Speedy Trial Act to obtain an indict-
ment. The district court signed and entered the proposed order based
on the ex parte motion of the United States, granting the government
a continuance to August 19, 1997 to obtain an indictment and
excluded the period of delay pursuant to the "ends of justice" provi-
sion of the Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(A). On August
21, 1997, the grand jury returned an indictment against all of the
appellees, charging them, among other things, with a conspiracy to
distribute cocaine, crack cocaine and marijuana. The grand jury
returned this indictment fifty-one days after the appellees were
arrested, twenty-one days beyond the time permitted by the Speedy
Trial Act and two days beyond the time permitted by the district
court's order.

Prior to the indictment, on August 6, 1997, Gwen Archie filed a
motion to dismiss, alleging a violation of the Speedy Trial Act. On
August 19, 1997, Benjamin Harden filed a motion to dismiss with
prejudice for violation of the Speedy Trial Act and on August 21,
1997, Dorothy Harden filed a similar motion. On September 22 and
23, 1997, United States District Court Judge Matthew J. Perry held
a hearing on the motions to dismiss. At that hearing, all of the appel-
lees joined in the motions, arguing that the charges against them
should be dismissed with prejudice. At the conclusion of the hearing,
the district judge announced his decision to dismiss the case with
prejudice and informed the parties that the court would issue a written
opinion on its ruling.

In his written opinion, the district judge found that the Speedy Trial
Act had been violated for two reasons. The first reason was that the

                    3
grant of the continuance was grounded upon a reason which the
Speedy Trial Act lists as one for which no continuance should be
granted. Section 3161(h)(8)(C) prohibits the grant of a continuance
based upon "lack of diligent preparation . . . on the part of the attorney
for the Government." The district court found that the government's
reason, the assigned Assistant United States Attorney's involvement
in another trial, fell within this prohibition and that the availability of
other Assistant United States Attorneys who could have obtained the
indictment within thirty days underscored the impropriety of the gov-
ernment's motion. Additionally, the district court found that the gov-
ernment could not reasonably rely on the court's earlier continuance
order based upon an ex parte motion because the government either
knew or should have known that its reason for pursuing a continuance
was invalid under the Speedy Trial Act.

Second, the district court found that the Speedy Trial Act had been
violated because the court did not conduct the necessary balancing of
factors required by § 3161(h)(8)(B) of the Speedy Trial Act when
determining whether or not to grant a continuance. Having found vio-
lations of the Speedy Trial Act, the district court concluded that the
indictment must be dismissed and further found that the dismissal
should be with prejudice.

In granting the dismissal with prejudice, the district court con-
ducted its analysis, as required, pursuant to § 3162(a)(1) of the
Speedy Trial Act. Section 3162(a) lists three factors the court must
weigh: (1) the seriousness of the offense, (2) the facts and circum-
stances leading to the dismissal, and (3) the impact of reprosecution
on the administration of the Speedy Trial Act and on the administra-
tion of justice. The district court found that although the offenses
charged in the indictment were indeed serious, the other factors out-
weighed the seriousness of the offenses charged and warranted a dis-
missal with prejudice.

The district court set forth the arrest and detention without bail of
most of the appellees, the violations of the Speedy Trial Act caused
by the government's ex parte motion and the court's continuance
order, and the resulting violation of the Speedy Trial Act's require-
ment that the government obtain an indictment or information within
thirty days of arrest as the circumstances that warranted dismissal

                     4
with prejudice. Additionally, with respect to the impact of a repro-
secution upon the mandates of the Speedy Trial Act, the district court
noted that the Speedy Trial Act is meant to protect the Sixth Amend-
ment rights of those charged with crimes and that its mechanical,
strict time limits accomplish this purpose. The court also noted that
the appellees faced criminal charges in state court based upon the
same investigation and, if proven guilty, the appellees would face sen-
tences for their crimes. Finally, the district court found that although
the Speedy Trial Act does not require consideration of prejudice to a
defendant, its legislative history suggests that it is an appropriate fac-
tor to examine. The district court found that the appellees' detention
without bail coupled with the government's ability at an earlier date
to present the matter to the grand jury but its failure to do so weighed
against permitting reprosecution.

United States v. Taylor, 487 U.S. 326 (1988), and United States v.
Jones, 887 F.2d 492 (4th Cir. 1989), on which the government relies,
do not compel a different result. In Taylor, the government was pre-
pared to try the defendant within the seventy day time limit, but the
defendant failed to appear for trial. After the defendant was captured,
the seventy day limit was exceeded by fourteen days. The district
court dismissed the indictment with prejudice based on the govern-
ment's "lackadaisical" behavior. The Supreme Court reversed, hold-
ing:

          The District Court relied heavily on its unexplained charac-
          terization of the Government conduct as "lackadaisical,"
          while failing to consider other relevant facts and circum-
          stances leading to dismissal. Seemingly ignored were the
          brevity of the delay and the consequential lack of prejudice
          to respondent, as well as respondent's own illicit contribu-
          tion to the delay.

Taylor, 487 U.S. at 343. This case is quite different from the situation
in Taylor. Here, the district court clearly evaluated all the relevant
factors and concluded that a dismissal with prejudice was appropriate.
In Taylor, the major factor surrounding the dismissal was the defen-
dant's failure to appear for trial. There is no corresponding conduct
by the defendants in this case. The principal fact leading to dismissal

                     5
was the government's groundless ex parte motion requesting an
extension.

In Jones, the magistrate judge applied a statute no longer in effect.
The magistrate judge committed the defendant pursuant to 18 U.S.C.
§ 4244 which authorized a competency examination for "such reason-
able period as the court may determine." Jones, 887 F.2d at 493 n.1.
Five days before Jones was arrested, the time for such an evaluation
was limited to a maximum of thirty days. See 18 U.S.C. § 4247(b).
Based on this new statute, the district court concluded that only thirty
of the sixty-six days Jones spent committed were excluded under the
act. When the other days were included, the seventy day limit was
exceeded by twenty-six days. Jones, 887 F.2d at 493. We affirmed the
district court's dismissal without prejudice.

In the case before us, however, the government filed an ex parte
motion which was groundless. As we previously noted, the district
court found that the government's reason for a continuance was
excluded as a permissible basis for an extension of time under 18
U.S.C. § 3161(h)(8)(C).

Although both parties have agreed that the government did not act
in bad faith and the district court found that there was no pattern of
neglect, it appears that the United States Attorney's Office on this
occasion was neglectful in not consulting the statute to see whether
its motion for a continuance conformed. In Taylor, 487 U.S. at 338,
the Court observed that "[w]e do not dispute that a truly neglectful
attitude on the part of the Government reasonably could be factored
against it in a court's consideration" of whether to dismiss with or
without prejudice. Based on the factors prescribed by 18 U.S.C.
§ 3162(a)(1), we conclude that the district court did not abuse its dis-
cretion by dismissing the indictment with prejudice.

II.

We have carefully considered the briefs and oral argument of the
parties and those portions of the record pertinent to the various argu-
ments. Having done so, we find no reversible error in the well-
reasoned opinion and decision of the district court. The district court's
decision to dismiss the indictment with prejudice was in accordance

                     6
with the basic principles of the Speedy Trial Act and the Sixth
Amendment of the United States Constitution.

AFFIRMED

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