                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            AUGUST 2, 2007
                              No. 07-10317                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                      D. C. Docket No. 05-00283-CR-4

UNITED STATES OF AMERICA,


                                                  Plaintiff-Appellee,

                                   versus

JAMES CASWELL JONES,

                                                  Defendant-Appellant.


                        ________________________

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

                               (August 2, 2007)

Before TJOFLAT, ANDERSON and HULL, Circuit Judges.

PER CURIAM:

     James Caswell Jones, who is serving a 77-month sentence for possession
with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C); possession with intent to distribute marijuana, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C); and being a felon in possession of a firearm, in violation

of 18 U.S.C. § 922(g)(1), appeals his convictions. The indictment under which

Jones was convicted followed an earlier indictment, which was dismissed without

prejudice for violations of the Speedy Trial Act, 18 U.S.C. § 3161-3174. The

indictment under which Jones was convicted, however, is based on the same facts

as the earlier indictment.

                                 I.

      Jones first argues that his confession, and the firearms obtained through a

search warrant based on his confession, should have been suppressed. Jones

argues that his motion to suppress was timely because he reserved the right to

supplement the motion to suppress that he originally filed. Jones asserts that he

attempted to raise the motion to suppress before the jury was empaneled, but the

district court did not give him the opportunity to do so. Jones additionally

contends that the district court was required to excuse the jury and conduct a voir

dire hearing to resolve his motion to suppress.

      A district court’s denial of a motion to suppress as untimely is reviewed for

abuse of discretion. United States v. Milian-Rodriguez, 828 F.2d 679, 683 (11th



                                          2
Cir. 1987). A motion to suppress evidence must be made before trial.

Fed.R.Crim.P. 12(b)(3)(c). However, a district court may, “at the arraignment or

as soon afterward as practicable, set a time for the parties to make pretrial motions

and may also schedule a motion hearing.” Fed.R.Crim.P. 12(c). “A party waives

any Rule 12(b)(3) defense, objection, or request not raised by the deadline the

court sets under 12(c) or by any extension the court provides. For good cause, the

court may grant relief from the waiver.” Fed.R.Crim.P. 12(e). A district court may

deny a motion to suppress as untimely without conducting a voir dire hearing, even

where the motion concerns the voluntariness of statements made to the police. See

United States v. Taylor, 792 F.2d 1019, 1025 (11th Cir. 1986) (holding that while

it may be permissible for the district court to consider a motion to suppress

involuntary statements despite its untimeliness, the district court is not required to

do so). An amended motion to suppress may be considered untimely even where

the initial motion was timely filed. See United States v. Hirschhorn, 649 F.2d 360,

364 (5th Cir. 1981).

      “A motion to suppress must in every critical respect be sufficiently definite,

specific, detailed, and nonconjectural to enable the court to conclude that a

substantial claim is presented . . . . A court need not act upon general or

conclusory assertions.” United States v. Cooper, 203 F.3d 1279, 1284 (11th Cir.



                                           3
2000) (quoting United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir.

1985)).

       In this case, the district court did not abuse its discretion in denying Jones’s

motion to suppress. Despite Jones’s assertion, the motion to suppress was not

timely. Jones’s first motion to suppress was completely conjectural and wholly

lacked the detail that we require. Cooper, 203 F.3d at 1284. Moreover, Jones has

conceded that the motion to suppress was denied in its entirety. Accordingly, that

portion of the motion in which he asked to reserve the right to amend the motion to

suppress also was denied.

       Even if Jones successfully had reserved the right to amend his motion to

suppress, the district court has the right to manage its docket. See Fed.R.Crim.P.

12(c). Thus, the district court may limit the time for filing pretrial motions,

including amended motions to suppress. Fed.R.Crim.P. 12(c); Hirschhorn, 649

F.2d at 364. In this case, the district court limited the time for filing pretrial

motions to 10 days after the arraignment. Jones’s amended motion to suppress,

raised orally at trial more than nine months after the district court disposed of the

other pretrial motions, was well outside that time limit.

       Finally, Jones has not shown good cause for relief from the waiver of his

motion to suppress. See Fed.R.Crim.P. 12(e). As the district court noted in the



                                            4
denial of Jones’s request for an evidentiary hearing, the facts of the case are the

same as those under the previous indictment, and Jones was provided open

discovery. Given that all the files were available at least nine months before the

trial, there is no reason Jones’s counsel should not have previously discovered the

basis for this motion to suppress. See Taylor, 792 F.2d at 1025. However, the

motion was filed on the day of the trial, more than nine months after the facts

underlying the motion were made available to Jones and after the time for filing

motions to suppress expired. “These facts demonstrate inexcusable delay and last-

minute motion filing.” Milian-Rodriguez, 828 F.2d at 683. Accordingly, the

district court properly denied Jones’s motion to suppress as untimely.

                                        II.

      Jones next argues that the district court erred in dismissing without prejudice

the earlier indictment against him. Jones contends that the district court misapplied

the statutory factors for determining whether to dismiss without prejudice. Jones

argues that his offense was not very serious because: (1) he was initially arrested

for failure to pay child support; (2) there was no evidence that he used the firearms

or possessed the firearms during the commission of a crime; and(3) the lack of

violence in the charges against him. Jones adds that the facts and circumstances

leading to dismissal mandated dismissal with prejudice because the government



                                              5
and the court were responsible for most of the delay while the speedy trial clock

was ticking. Jones also argues that the interests of justice would best have been

served by dismissal with prejudice because he was forced to live under restrictions

for the entirety of the delay. Jones asserts that the district court should also have

considered the deterrent effect on governmental delay that would have been made

by a dismissal with prejudice. Finally, Jones argues that the district court erred in

finding that his rights to a speedy trial were not violated because most of the delay

was the government’s fault, and he was incarcerated for the entire time.

      We review a district court’s determination to dismiss a case with or without

prejudice upon finding a violation of the Speedy Trial Act for abuse of discretion.

United States v. Brown, 183 F.3d 1306, 1309 (11th Cir. 1999).

      Under the Speedy Trial Act:

      In any case in which a plea of not guilty is entered, the trial of a
      defendant charged in an information or indictment with the
      commission of an offense shall commence within seventy days from
      the filing date (and making public) of the information or indictment,
      or from the date the defendant has appeared before a judicial officer of
      the court in which such charge is pending, whichever date last occurs.

18 U.S.C. § 3161(c)(1). Thus, if the defendant moves for dismissal, and the 70

days have expired, the district court must dismiss the case. United States v.

Miranda, 835 F.2d 830, 834 (11th Cir. 1988). The district court has discretion to

dismiss the case with or without prejudice, and we do not perceive a preference for

                                           6
either form of dismissal. Id. at 834. However, the district court must balance the

statutory factors under 18 U.S.C. § 3162(a)(2), which are: (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

the administration of justice. 18 U.S.C. § 3162(a)(2).

      We review de novo a motion to dismiss based upon the Sixth Amendment

right to a speedy trial. United States v. Harris, 376 F.3d 1282, 1286 (11th Cir.

2004). Pursuant to the Sixth Amendment, “the accused shall enjoy the right to a

speedy and public trial . . . .” U.S. Const. amend VI. As we have held:

      In order to determine whether a defendant has been deprived of his
      [Sixth Amendment] right to a speedy trial, this court must consider (1)
      whether the delay before trial was uncommonly long; (2) whether the
      government or the defendant is more to blame for that delay;
      (3) whether, in due course, the defendant asserted his right to a speedy
      trial; and (4) whether the defendant suffered prejudice as a result of
      the delay (the ‘Barker factors’).

Harris, 376 F.3d at 1290 (citations omitted). “The first factor serves a triggering

function; unless some ‘presumptively prejudicial’ period of delay occurred, we

need not conduct the remainder of the analysis.” Id. However, unless the first

three factors weigh heavily against the government, the defendant must show

actual prejudice to prevail on a Sixth Amendment violation. Id. at 1296.

Moreover, that prejudice must be to his defense. Doggett v. United States, 505



                                          7
U.S. 647, 656, 112 S.Ct. 2686, 2693, 120 L.Ed.2d 520 (1992).

      The district court did not err in dismissing Jones’s original case without

prejudice. As the district court found, the fact that Jones had not been caught using

the gun or committing violent acts does not detract from the fact that Jones was a

repeated felon who possessed firearms. Accordingly, the district court did not

abuse its discretion in finding that Jones’s offense was serious enough to weigh in

favor of dismissal without prejudice. 18 U.S.C. § 3162(a)(2). Moreover, the

district court found that the majority of the delay was the result of administrative

confusion, and was its fault. Where delay is the result of administrative confusion,

we have expressed a preference for dismissal without prejudice. Miranda, 835

F.2d at 834. Finally, as the district court noted, Jones was partially responsible for

the delay because he did not assert his speedy trial rights until after a trial date was

set. Accordingly, dismissal with prejudice would have permitted Jones to use the

Speedy Trial Act as an offensive tool. On the other hand, the public has an interest

in seeing that convicted felons do not possess firearms. Thus, the public interest

also dictates dismissal without prejudice.

      The district court also did not err in finding that Jones’s Sixth Amendment

rights were not violated. While both parties agree that the delay before trial was

uncommonly long, that the government received extensions for its briefs, and the



                                             8
government filed its motion for reconsideration and notice of appeal 30 days after

the orders complained of were entered, the delay is not purely the government’s

fault. Much of the delay was the result of disposing of the government’s appeal

and Jones’s petition for certiorari. Moreover, Jones could have moved to dismiss

the indictment for a violation of the Speedy Trial Act within 8 days of the district

court’s receipt of the denial of certiorari rather than waiting until a trial date was

set. Jones did not do so, thus adding to the delay. Because the majority of the

delay was not any one party’s fault, but rather the result of disposing of motions,

appeals, and petitions for certiorari, and Jones did not timely assert his right to a

speedy trial, both of those factors weigh against finding a Sixth Amendment

violation. Harris, 376 F.3d at 1290. Finally, Jones has not argued that he suffered

prejudice to his case as a result of the delay. Accordingly, that factor weighs

against finding a Sixth Amendment violation as well. Doggett, 505 U.S. at 656,

112 S.Ct. at 2693. Because the factors weigh against finding a Sixth Amendment

violation, the district court did not err in denying Jones’s motion to dismiss on this

ground.

                                  III.

      Jones argues that his speedy trial rights were violated under the current

indictment because more than 70 days passed between his indictment and the trial.



                                            9
Jones asserts that the time was not tolled by his appeal of the dismissal of the prior

indictment without prejudice. According to Jones, because the current case

contains charges that were not included in the prior indictment, it could have

moved to trial regardless of the disposition of the appeal.

      We review a claim under the Speedy Trial Act de novo and review a district

court’s factual determinations on excludable time for clear error. United States v.

Dunn, 345 F.3d 1285, 1288 (11th Cir. 2003). According to 18 U.S.C. § 3161(h),

certain periods of delay are excluded when computing the time within which a trial

must commence. 18 U.S.C. § 3161(h). Included on that list is “a period of delay

resulting from other proceedings concerning the defendant, including but not

limited to” delays resulting from proceedings listed in the statute. 18 U.S.C.

§ 3161(h)(1).

      In United States v. Davenport, 935 F.2d 1223 (11th Cir. 1991), a defendant

awaiting trial filed a petition for writ of habeas corpus alleging a violation of the

Speedy Trial Act. Id. After the defendant was eventually convicted of the crime

for which he was awaiting trial, he argued on appeal that his trial was outside of

the Speedy Trial Act’s limitations period. Id. at 2131. Specifically, he contended

that the speedy trial clock should have run while his habeas petition, alleging

violations of the Speedy Trial Act, was pending. Id. We rejected his contention



                                           10
and found that the petition was an “other proceeding concerning the defendant,”

and was analogous to an interlocutory appeal. Id. at 2131-32. Thus, the resulting

delay was excluded from the speedy trial clock. Id. at 2132.

      In the instant case, Jones appealed a speedy trial decision rather than filing a

habeas corpus case. However, the Supreme Court already has held that a criminal

defendant may not immediately appeal a district court’s order dismissing an

indictment until after conviction because the indictment is but a step toward final

disposition of the merits of the case and will be merged in the final judgment. Parr

v. United States, 351 U.S. 513, 519, 76 S.Ct. 912, 916, 100 L.Ed. 1377 (1956).

Accordingly, Jones’s appeal of the dismissal without prejudice also is analogous to

an interlocutory appeal. As such, the district court did not err in comparing Jones’s

case to Davenport and finding that the proceeding tolled the speedy trial clock

under 18 U.S.C. § 3161(h)(1).

                                 IV.

      Jones argues that his initial arrest was unconstitutional because Detective

Hein “pocketed” the warrant and then delayed serving it in hopes of conducting a

search of Jones at a time when he would be able to find drugs.

      During the pendency of Jones’s prior indictment, we entertained an appeal

on the issue of whether Jones’s arrest was illegal. United States v. Jones, 377 F.3d



                                          11
1313 (11th Cir. 2004). We held, in a published opinion, that subjective intentions

should play no role in Fourth Amendment analysis. Id. at 1314. Accordingly, we

held that the district court erred in considering Hein’s subjective intent in serving

the warrant. Id. We also explicitly found that Jones’s arrest was constitutional.

Id. Now Jones argues that, under the same facts, his arrest was unconstitutional

because of Detective Hein’s subjective intent. This argument is foreclosed by our

prior precedent, which held otherwise. Id. Accordingly, Jones’s arrest was

constitutional.

       Accordingly, upon review of the record and the arguments of both parties,

Jones’s convictions are

       AFFIRMED.1




       1
        Jones’s motion to file his reply brief out of time is granted but his request for oral
argument is denied.

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