                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             JULY 17, 2008
                              No. 07-14700                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                      D. C. Docket No. 07-00001-CR-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ADRIAN BRANHAM,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                               (July 17, 2008)

Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.

PER CURIAM:

     Adrian Branham appeals his convictions for conspiracy to rob a commercial
business and three counts of robbery of a commercial business, both in violation 18

U.S.C. § 1951. He was also convicted of three counts of use of a firearm during a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Prior to the

issuance of the indictment under which the instant convictions were obtained, the

grand jury issued an indictment charging Branham with a sole count of conspiracy

to rob a commercial business, and, upon his motion to dismiss the indictment based

on a violation of the Speedy Trial Act, 18 U.S.C. § 3162 et seq., the district court

dismissed the indictment without prejudice. The grand jury then re-indicted

Branham for the multiple counts that lead to the convictions at issue here. At

sentencing, he objected that the indictment on heightened charges had been the

result of vindictive prosecution.

      On appeal, Branham argues, first, that the district court erred by dismissing

the original indictment without prejudice, thus allowing the government to re-

indict him. We review for an abuse of discretion the district court’s determination

of whether the dismissal of a case for a Speedy Trial Act violation should be with

or without prejudice. United States v. Brown, 183 F.3d 1306, 1309 (11th Cir.

1999). We have noted that, in deciding whether to dismiss an indictment for a

violation of the Speedy Trial Act with or without prejudice, “there is no preference

for one type of dismissal over the other.” Id. at 1310. However, in making the



                                           2
determination, the court is to consider the factors set forth in § 3162(a) of the Act:

(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.” Id.

(citation omitted).

      With regard to the first factor, we have noted that “where the crime charged

is serious, the court should dismiss only for a correspondingly severe delay,” and

noting that while the defendant’s drug charge was serious, a delay of “several

months” militated toward a finding that dismissal with prejudice was proper.

United States v. Russo, 741 F.2d 1264, 1267 (11th Cir. 1984). Regarding the

second factor, in United States v. Miranda, 835 F.2d 830, 834-35 (11th Cir. 1988),

we instructed the district court to dismiss an indictment without prejudice where

the delay in trial had resulted from “negligence and oversight” on the part of the

prosecutor and the district court, rather than “intentional delay.” Addressing the

third factor, we have recognized that the interests in the administration of justice

and speedy prosecution may neutralize one another. Russo, 741 F.2d at 1267.

      The delay at issue here was only four days. Importantly, there is no

indication in the record that the delay was the result of any intentional delay by the

government; instead, it was the result of scheduling difficulties in the district court



                                           3
due to the judge’s illness. Because the bank robbery offenses were serious in

nature, and the Speedy Trial Act violation that resulted in dismissal of the original

indictment was not due to a severe delay, nor an intentional act by the government,

we hold that the district court did not err by dismissing the original indictment

without prejudice.

      Branham also argues on appeal that because the original indictment exposed

him to fewer charges and less prison time than the indictment under which he

ultimately was convicted, his re-indictment on heightened charges constituted

prosecutorial vindictiveness. He asserts that because the first and subsequent

indictments both arose out of the same conduct, the re-indictment on heightened

charges was the result of prosecutorial vindictiveness. However, Branham failed

to seek dismissal of the second indictment on the basis of prosecutorial

vindictiveness prior to trial and only raised this challenge for the first time at

sentencing.

      We have noted that a motion to dismiss the indictment on the basis of

prosecutorial misconduct must be raised prior to trial, pursuant to Fed. R. Crim. P.

12(b)(3)(B), or it otherwise is waived. See United States v. Dulcio, 441 F.3d 1269,

1275 (11th Cir. 2006) (citing United States v. Nichols, 937 F.2d 1257, 1261 (7th

Cir.1991)); see also Fed. R. Crim. P. 12(b)(3)(B) (requiring defendants to raise “a



                                            4
motion alleging a defect in the indictment or information” prior to trial). Because

Branham did not move to dismiss the second indictment on the basis of

prosecutorial vindictiveness prior to his trial, he waived objection to the

indictment.1

       Therefore, Branham’s convictions are

       AFFIRMED.




       1
         Even were we to consider Branham’s prosecutorial vindictiveness challenge under the
plain error standard, pursuant to United States v. Lewis, 492 F.3d 1219, 1221-22 (11th Cir.
2007), we note that the law is not clear that a presumption of vindictiveness would arise in a
context like the instant one, where the defendant is re-indicted on heightened charges following
the exercise of a right prior to trial. See United States v. Barner, 441 F.3d 1310, 1316 (11th Cir.
2006) (“While a prosecutor’s decision to seek heightened charges after a successful post-trial
appeal is enough to invoke a presumption of vindictiveness, proof of a prosecutorial decision to
increase charges after a defendant has exercised a legal right does not alone give rise to a
presumption in the pretrial context.” (internal quotations and citations omitted)). We would not,
therefore, find this to be a case of plain error.

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