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

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                          No. 96-3289
 WILLIAM D. KILLION, JR.,                              (D.C. No. 96-CR-10001)
                                                              (D. Kan.)
          Defendant-Appellant.




                                 ORDER AND JUDGMENT*



Before TACHA, BALDOCK, and LUCERO, Circuit Judges.**


      In this direct appeal, Defendant-Appellant William Killion asserts that a

superseding indictment improperly charged him after the same charge in another

indictment had been previously dismissed for a violation of the Speedy Trial Act. We



      *
                This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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 appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. 34.1.9. The case is therefore ordered
submitted without oral argument.
have jurisdiction over this appeal from a final judgment pursuant to 28 U.S.C. § 1291.

After carefully examining the briefs, record, and district court opinions in this matter, we

affirm.

          The undisputed facts relevant to this matter are as follows. Defendant first

appeared before a magistrate judge for a detention hearing on October 24, 1994. Fifty-

seven days thereafter Defendant filed a comprehensive discovery motion. On March 7,

1995, the district court, on Defendant’s motion, ordered a psychological evaluation of the

Defendant. The Government did not transport Defendant to the facility for evaluation

until May 9, 1995. Of the sixty-four days which elapsed between the court’s order and

Defendant’s arrival at the facility, fifty-four were chargeable to the Government for

speedy trial purposes. The tests were completed, and Defendant was returned to his

district on June 14, 1995. Subsequently, Defendant’s counsel filed motions for

continuances on July 10, 1995; July 18, 1995; and August 21, 1995. On August 18, 1995,

Defendant filed several pre-trial motions including a motion for dismissal for a violation

of the Speedy Trial Act. On August 28, 1995, the Government conceded a violation of

Defendant’s speedy trial right, and the court dismissed the charge. The court did,

however, reserve the determination of whether the dismissal should be with prejudice

until the parties could brief the issue. After briefing, Judge Brown, in a very careful and

thoughtful opinion, concluded that “after consideration of all of the circumstances . . . the

court finds dismissal without prejudice [to be] the appropriate remedy in this case.”


                                                2
       A new indictment was filed on March 14, 1996, and Defendant responded with a

motion to dismiss for violation of his speedy trial right. In the motion, Defendant argued

that the district court erred when it failed to dismiss the original indictment with

prejudice. Thus, he argued, the second indictment was improper. The District Judge

before whom the second motion was filed analyzed the parties’ arguments and ruled that

Judge Brown did not err when he dismissed the original indictment without prejudice.

Defendant subsequently conditionally pleaded guilty to the charges and initiated this

appeal. The plea reserved the question of whether Defendant was properly reindicted.

Accordingly, the sole question before us is whether Judge Brown erred by dismissing the

indictment without prejudice rather than with prejudice.1

       When reviewing a district court’s determination of whether an indictment should

be dismissed with or without prejudice for a violation of the Speedy Trial Act, we will

only reverse if we find that the district court abused its wide discretion. United States v.

Tsosie, 966 F.2d 1357, 1359 (10th Cir. 1992). See also United States v. Taylor, 487 U.S.

326, 335 (1988) (defining the criteria by which a district court’s Speedy Trial Act rulings

are judged). Wide latitude is to be given district court’s decision in these matters so long

as it properly considers the statutory guidelines. See Taylor, 487 U.S. at 336.


       1
              This is the proper time to review this question. There was no final
judgment to be reviewed after the trial court dismissed the first indictment. Only after the
prosecution refiled the indictment and it proceeded to final judgment was there an
aggrieved party and a matter for our review. See Parr v. United States, 351 U.S. 513, 517-
20 (1956).

                                              3
       In determining whether to grant a motion to dismiss with prejudice or without

prejudice, a district court must consider “the seriousness of the offense; the facts and

circumstances of the case which led to the dismissal; and the impact of reprosecution on

the administration of [the Speedy Trial Act] and on the administration of justice.” United

States v. Saltzman, 984 F.2d 1087, 1092 (10th Cir. 1993). A review of Judge Brown’s

opinion reveals that he carefully examined each of these elements in making his ruling.

Moreover, the opinion clearly articulates Judge Brown’s weighing of the factors in

concluding that the indictment should be dismissed without prejudice. Accordingly, after

reviewing the district court orders, the briefs, and the record before us, we find for

substantially the same reasons expressed by the district court below that Judge Brown did

not abuse his discretion in granting the dismissal without prejudice.



       AFFIRMED.

                                                  Entered for the Court,



                                                  Bobby R. Baldock
                                                  Circuit Judge




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