                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3268
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                             Stephen Alan Macomber

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Nebraska - Omaha
                                ____________

                             Submitted: May 14, 2013
                               Filed: June 17, 2013
                                  ____________

Before RILEY, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
                              ____________

RILEY, Chief Judge.

       On June 23, 2010, a federal grand jury in the District of Nebraska charged
Stephen Macomber with (1) bank robbery, in violation of 18 U.S.C. § 2113(a); and
(2) using and carrying a firearm during a bank robbery, in violation of
18 U.S.C. § 924(c)(1)(A)(i). Macomber was transferred from a Kansas correctional
facility, where he was imprisoned on state charges, to the District of Nebraska, to
appear on the federal charges. After Macomber was transferred back to Kansas, he
moved to dismiss the indictment based on a violation of the Interstate Agreement on
Detainers Act (IADA), 18 U.S.C. app. 2 § 1, et seq. The district court1 determined
the transfer violated the IADA and dismissed the federal indictment without
prejudice. Macomber appeals, arguing the dismissal should have been with prejudice.
Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I.    BACKGROUND
      At his initial appearance and arraignment in the District of Nebraska on April
27, 2012, Macomber pled not guilty and advised the magistrate judge2 he wished to
represent himself. The magistrate judge appointed a federal public defender as
standby counsel. Macomber informed the magistrate judge he wanted to remain in
Nebraska, rather than being returned to Kansas. The magistrate judge then remanded
Macomber to the custody of the United States Marshal Service.

       On May 7, 2012, Macomber filed a pro se “Application for Temporary
Restraining Order and Preliminary Injunction,” in which he claimed the government
was violating his constitutional rights by denying him “meaningful access to the
[c]ourts.” Macomber also asserted he “was involuntarily moved outside of the
jurisdiction of the state of Kansas,” where he had three “active criminal appeals.”
Macomber asked to be provided with certain “legal materials” relevant to these
appeals, but did not specifically ask to be transferred back to Kansas.

      The district court interpreted Macomber’s motion as a request to be returned
to Kansas, and on May 15, 2012, ordered the United States Marshal for the District


      1
        The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
      2
       The Honorable Thomas D. Thalken, United States Magistrate Judge for the
District of Nebraska.


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of Nebraska to return Macomber to state custody in Kansas to facilitate Macomber’s
access to legal materials relevant to his Kansas appeals. After normal business hours
on May 16, 2012, Macomber objected to the transfer and moved the district court to
reconsider. Early in the morning of May 17, 2012, Macomber was transported to
Kansas before the district court was able to review his objection.

       On May 21, 2012, Macomber moved to dismiss the indictment, claiming the
district court order violated the IADA, see 18 U.S.C. app. 2 § 2 art. IV(e) and § 9(1),
by transferring him back to Kansas without an opportunity to object. At an
evidentiary hearing on August 22, 2012, Macomber and his standby counsel
conceded neither of them contacted the district court or the government to ask for a
hearing on the day Macomber filed his objection to the transfer.

       The district court concluded that its interpretation of Macomber’s motion could
be viewed as unreasonable, amounting to a violation of the IADA. See id. The
district court then dismissed the indictment without prejudice. Macomber appeals,
claiming the district court should have dismissed the indictment with prejudice.3

II.    DISCUSSION
       Article IV § 2 of the IADA allows “a prosecutor who has lodged a detainer
against a prisoner in another State [to] secure the prisoner’s presence for disposition
of the outstanding charges.” United States v. Mauro, 436 U.S. 340, 351 (1978). If,
however, the prisoner is “returned to the original place of imprisonment pursuant to
Article V(e)” before there has been a trial on the indictment, “such
indictment . . . shall not be of any further force or effect, and the court shall enter an
order dismissing the same with prejudice.” 18 U.S.C. app. 2 § 2 art. IV(e). Where,


      3
       Macomber does not specifically argue, and we do not decide, whether a
transfer in violation of the IADA may implicate any constitutional question.


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as here, the United States is the receiving entity, “[n]otwithstanding any provision of
the [IADA] to the contrary,” the district court may dismiss the indictment “with or
without prejudice.”4 Id. § 9(1).

      In determining whether to dismiss the case with or without prejudice,
      the 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 the agreement on detainers and on the administration
      of justice.

Id.

       The district court dismissed the indictment without prejudice because
(1) Macomber was charged with “serious offenses . . . that pose[d] a threat to
society”; (2) the government was “in no way at fault” and had not committed any
“wrongdoing or neglect”; and (3) Macomber would “not suffer any significant
prejudice by virtue of the dismissal of the action being without prejudice” because
Macomber would be incarcerated “for a very long time” based on his Kansas state
convictions and dismissal without prejudice would not be “likely to interfere with
liberty that he would otherwise enjoy.”

      The parties agree Macomber’s transfer to Kansas without a hearing violated the
IADA and justified dismissal. Macomber submits that the district court should have
dismissed the indictment against him with prejudice. “[W]e review the district court’s
decision to dismiss [Macomber’s] indictment without prejudice under the IADA for

      4
        Under the IADA, the United States may return a prisoner in federal custody
to the custody of the sending state before trial pursuant to court order if the prisoner
and the United States are given “reasonable notice . . . and an opportunity for a
hearing.” Id. § 9(2). In this case, Macomber was not given the opportunity for a
hearing before his transfer.


                                          -4-
abuse of discretion, and review the factual findings that support the decision for clear
error.” United States v. McKinney, 395 F.3d 837, 840 (8th Cir. 2004).

       A.     Seriousness of the Offense
       The seriousness of the offense depends in part upon “the nature of the conduct
charged and the potential sentence.” Id. at 841. Armed bank robbery endangers
human life. The maximum sentence for bank robbery is twenty years, see
18 U.S.C. § 2113(a), and the possession of a firearm during a bank robbery carries a
consecutive sentence of, at least, five years, see id. § 924(c)(1)(A). “[T]he district
court did not abuse its discretion in concluding this factor supports dismissal without
prejudice.” McKinney, 395 F.3d at 841.

       B.     Facts and Circumstances Leading to Dismissal
       “[B]ad faith or a pattern of negligence” by the government may weigh in favor
of dismissal with prejudice. Id. Macomber admits “[t]he prosecution . . . did nothing
to seek his transfer,” but claims “the policies of the United States Marshals and
Douglas County Department of Corrections and . . . the district court’s unreasonable
interpretation of his Application” nonetheless caused his transfer. Macomber
explains he filed his “Application for Temporary Restraining Order and Preliminary
Injunction” because he was “denied access to legal and writing materials” in the
Douglas County Correctional Center. The effect of any inadequate access to legal
and writing materials—an assertion that is supported only by Macomber’s own
allegations—is remote. Macomber has not alleged bad faith by the government or a
“pattern of negligence,” as discussed in McKinney. Id. Apart from his after-hours
motion, neither Macomber nor his standby counsel contacted the district court or the
government to inform them he was requesting a hearing before his transfer. The
district court did not abuse its discretion by weighing this factor in favor of dismissal
without prejudice. See id.




                                          -5-
      C.      Impact of Reprosecution
      Like the district court, we previously have discussed “prejudice” when
considering the effect of reprosecution. See id. at 841-42. Macomber asserts the
United States “Supreme Court made it clear in [Alabama v. Bozeman, 533 U.S. 146,
154-56 (2001),] that a defendant can suffer prejudice simply as a result of
uncertainties generated by interstate detainers.” He claims he will face
“uncertainties” if he is reprosecuted, namely, he might again be deprived of “legal
and writing materials” and “will again have to worry that his pro se pleadings will be
misconstrued and that he will be placed on a fast track to transfer whenever he asserts
his constitutional rights.”

       The “uncertainties” in Bozeman concerned the effect of a transfer on inmate
treatment and rehabilitation programs, an entirely different type of issue than
Macomber’s claims of possible future misconduct by the government and the district
court. See id. We need not decide whether the sort of “uncertainties” asserted by
Macomber ever could constitute prejudice within the meaning of the IADA.
Macomber “has presented no evidence, other than his own statements” in his
“Application for Temporary Restraining Order and Preliminary Injunction” and on
appeal that these problems might occur, such as evidence of a pattern of such alleged
misconduct. See McKinney, 395 F.3d at 842. Although there may be situations in
which a defendant already serving a lengthy sentence is prejudiced by a dismissal
without prejudice, on this record, we cannot say the district court “abuse[d] its
discretion in concluding this factor supports dismissal without prejudice.” Id.

III.  CONCLUSION
      Because the district court did not abuse its discretion in dismissing the
indictment without prejudice, we affirm.
                      ______________________________




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