                                                                                   [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________                       FILED
                                                           U.S. COURT OF APPEALS
                                      No. 95-5293            ELEVENTH CIRCUIT
                               ________________________           08/13/99
                                                              THOMAS K. KAHN
                      D. C. Docket No.     94-6149-CR-FERGUSON CLERK


UNITED STATES OF AMERICA,
                                                                          Plaintiff-Appellant,

                                            versus

KEITH BROWN;
RANDOLPH BLACKMON,
                                                                      Defendants-Appellees.

                               ________________________

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

                                    (AUGUST 13, 1999)


Before COX and HULL, Circuit Judges, and COHILL*, Senior District Judge.



       *
        Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western District of
Pennsylvania, sitting by designation.
HULL, Circuit Judge:

      The Government appeals the dismissal with prejudice under the Speedy Trial

Act, 18 U.S.C. § 3161 et seq., of an eleven-count indictment against Keith Brown.

After review, we affirm the dismissal with prejudice of one count and reverse the

dismissal with prejudice of the remaining counts.

             I. FACTUAL AND PROCEDURAL BACKGROUND

      On January 24, 1992, Brown was arrested. On February 4, 1992, the grand

jury returned a one-count indictment (the “first indictment”) against Brown,

charging him with conspiracy to possess with intent to distribute cocaine in

violation of 21 U.S.C. § 846. Two years later, in February 1994, Brown filed a

motion to dismiss this indictment, alleging violation of his constitutional and

statutory rights to a speedy trial.

      On July 5, 1994, the district court granted Brown’s motion and dismissed the

first indictment. The district court found that even “[g]iving the Government a

generous count of 265 days of excludable time for defense motions filed pro se and

by counsel, plus ninety days to reorganize after the disruptions caused by the

hurricane [Hurricane Andrew in 1992], over 180 days of delay are the result of

unexplained Government inaction.” The district court indicated that it had

considered “[t]he twenty-five month delay, the reasons given for the delay, and the



                                          2
Defendants’ assertion of the right [to a speedy trial]” and had found those factors to

“weigh heavily against the Government.” In addition, the district court described

the case as “a ‘dry reverse sting’ operation based on a government-initiated contact

for a small drug transaction, where the Defendants, ostensibly, had no money and

the informant-seller, at the time, had no drugs,” suggesting that the court did not

view Brown’s offense as particularly serious. The district court also mentioned

that Brown had been incarcerated for more than thirty months. The district court

concluded that the Speedy Trial Act, 18 U.S.C. § 3161, had been violated, and

hence, the indictment had to be dismissed. The court did not state whether the

dismissal of the indictment was with or without prejudice.

      The Government did not appeal the dismissal of the first indictment.

Instead, on July 5, 1994, the Government filed another complaint against Brown.

On July 19, 1994, the grand jury returned an eleven-count indictment (the “second

indictment”) based on the July 5, 1994 complaint.

      The second indictment recharged Brown with the one count from the first

indictment, conspiracy to possess with intent to distribute cocaine (Count I). In

addition, the second indictment charged Brown with one count of knowingly and

intentionally attempting to possess with intent to distribute cocaine in violation of

21 U.S.C. § 846 (Count II) and nine counts of using a communication facility in



                                          3
the commission of a drug felony in violation of 21 U.S.C. § 843(b) (Counts III to

XI).

       On August 23, 1994, Brown moved to dismiss the second indictment for

violation of the Speedy Trial Act, violation of his constitutional right to a speedy

trial, and prosecutorial vindictiveness. Brown’s motion was referred to a

magistrate judge.

       In a report and recommendation filed November 22, 1994, the magistrate

judge inferred from the discussion in the district court’s July 5, 1994 order that the

court had intended to dismiss the first indictment with prejudice. The magistrate

judge also determined that only Count I of the second indictment set forth a charge

that was part of the first indictment. Accordingly, the magistrate judge

recommended granting Brown’s motion to dismiss as to Count I but denying the

motion as to Counts II through XI.

       On August 12, 1995, the district court entered an order affirming the

magistrate judge’s report and recommendation as to Count I. The district court

stated that in its July 5, 1994 order dismissing the first indictment it had considered

the factors relevant to determining whether to dismiss the case with or without

prejudice--the seriousness of the offense, the facts and circumstances of the case

which led to the dismissal, the impact of a reprosecution on the administration of



                                           4
the Speedy Trial Act and on the administration of justice, and the prejudice to the

defendant. See 18 U.S.C. § 3162(a)(2); United States v. Taylor, 487 U.S. 326,

333-34 (1988). The district court then set forth factual findings from the July 5,

1994 order relating to each of these factors. Based on these findings, the district

court concluded that the magistrate judge correctly had interpreted its July 5, 1994

order as a dismissal with prejudice. Hence, the district court determined that

Brown’s motion to dismiss Count I of the second indictment should be granted.

      The district court overruled the report and recommendation as to Counts II

through XI. The district court decided that Brown’s motion to dismiss Counts II

through XI should be granted, reasoning that those counts “are simply a more

detailed version of crimes described in the initial complaint.”

      Accordingly, the district court dismissed all counts of the second indictment

with prejudice. The Government appeals the district court’s determination both as

to Count I and as to Counts II through XI.

                          II. STANDARD OF REVIEW

      We review de novo the district court’s interpretation of the Speedy Trial Act.

United States v. Schlei, 122 F.3d 944, 984 (11th Cir. 1997), cert. denied, __ U.S.

__, 118 S. Ct. 1523 (1998). We review for abuse of discretion the district court’s

determination about whether the dismissal of a case to remedy a violation of the



                                          5
Speedy Trial Act should be with or without prejudice. United States v. Taylor, 487

U.S. 326, 332-35 (1988); United States v. Derose, 74 F.3d 1177, 1182 (11th Cir.

1996).

                                III. DISCUSSION

        We first review the general principles governing dismissals to remedy

Speedy Trial Act violations and charges on which a defendant may be prosecuted

after an indictment is dismissed on the defendant’s motion under the Speedy Trial

Act, 18 U.S.C. § 3162(a)(2). We then apply those principles to the events in this

case.

A. Dismissals Under the Speedy Trial Act

        The Speedy Trial Act places two time limits on the government’s

prosecution of a defendant. 18 U.S.C. § 3161. First, under § 3161(b), a defendant

must be indicted on charges within thirty days from being arrested or served with a

summons in connection with those charges. Then, under § 3161(c)(1), a defendant

must be tried on the charges in the indictment within seventy days from the later of

either the filing date of the indictment or the defendant’s initial appearance before

a judicial officer of the court in which the charges are pending. As explained in 18

U.S.C. § 3161(h), certain periods of time, such as delays resulting from the court’s

consideration of a proposed plea agreement or a pretrial motion, are not counted



                                          6
for purposes of computing either of these time limits.

       If a defendant is not indicted within the proper amount of time after arrest,

the charges against the individual shall be dismissed by the court or otherwise

dropped. 18 U.S.C. § 3162(a)(1).1 If a defendant is not brought to trial within the

requisite time after indictment, the defendant may move for dismissal of the case.

18 U.S.C. § 3162(a)(2).2

       Under both §§ 3162(a)(1) and (a)(2), the district court has discretion to

       1
           Section 3162(a)(1) provides:

               If, in the case of any individual against whom a complaint is filed
       charging such individual with an offense, no indictment or information is filed
       within the time limit required by section 3161(b) as extended by section 3161(h)
       of this chapter, such charge against that individual contained in such complaint
       shall be dismissed or otherwise dropped. 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 this chapter and on the administration of justice.

18 U.S.C. § 3162(a)(1).
       2
           In relevant part, § 3162(a)(2) provides:

               If a defendant is not brought to trial within the time limit required by
       section 3161(c) as extended by section 3161(h), the information or indictment
       shall be dismissed on motion of the defendant. The defendant shall have the
       burden of proof of supporting such motion but the Government shall have the
       burden of going forward with the evidence in connection with any exclusion of
       time under subparagraph 3161(h)(3). 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 this chapter and on the administration of justice.

18 U.S.C. § 3162(a)(2).

                                                      7
dismiss a case either with or without prejudice. United States v. Taylor, 487 U.S.

326, 335 (1988); United States v. Derose, 74 F.3d 1177, 1182 (11th Cir. 1996). As

the Supreme Court clarified in Taylor, there is no preference for one type of

dismissal over the other. 487 U.S. at 335. However, in choosing between the two,

the court is to be guided by a careful consideration of factors, including at a

minimum the three factors specifically enumerated in both parts of § 3162(a): “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 this chapter

and on the administration of justice.” 18 U.S.C. §§ 3162(a)(1), 3161(a)(2); Taylor,

487 U.S. at 333, 336. To permit meaningful appellate review, the court also should

clearly articulate its analysis of these factors. Taylor, 487 U.S. at 336-37. See also

id. at 343 (“[T]he administration of the Speedy Trial Act and the necessity for

thorough appellate review require that a district court carefully express its decision

whether or not to bar reprosecution in terms of the guidelines specified by

Congress.”).

B. Prosecution After Charges are Dismissed Under § 3162(a)(2)

      The general rule that a defendant may be reprosecuted on charges dismissed

without prejudice applies in the context of the Speedy Trial Act and § 3162(a)(2)

in particular, as does the rule that a defendant may not be reindicted and tried on



                                           8
charges dismissed with prejudice. See Taylor, 487 U.S. at 342. In addition, after

an indictment is dismissed either with or without prejudice, a defendant may be

prosecuted for offenses that are separate and distinct from the offenses charged in

the dismissed indictment, even if those offenses all arose out of the same

underlying facts. See United States v. Derose, 74 F.3d 1177, 1182-84 (1996);

United States v. Stricklin, 591 F.2d 1112, 1120 (5th Cir. 1979).3

       To the extent the government can charge the defendant “with the same

offense or an offense based on the same conduct or arising from the same criminal

episode” as in an indictment dismissed on motion of the defendant under §

3162(a)(2), the government must do so in accordance with 18 U.S.C. §

3161(d)(1).4 Section 3161(d)(1) does not limit the charges that can be brought



       3
       This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
       4
           Section 3161(d)(1) provides as follows:

               If any indictment or information is dismissed upon motion of the
       defendant, or any charge contained in a complaint filed against an individual is
       dismissed or otherwise dropped, and thereafter a complaint is filed against such
       defendant or individual charging him with the same offense or an offense based
       on the same conduct or arising from the same criminal episode, or an information
       or indictment is filed charging such defendant with the same offense or an offense
       based on the same conduct or arising from the same criminal episode, the
       provisions of subsections (b) and (c) of this section shall be applicable with
       respect to such subsequent complaint, indictment, or information, as the case may
       be.

18 U.S.C. § 3161(d)(1).

                                                 9
against a defendant but governs the timing of such charges. Specifically, §

3161(d)(1) resets the periods in which a defendant must be indicted and tried; thus,

for the charges that may be brought after a dismissal on motion of the defendant

under § 3162(a)(2), the Speedy Trial Act’s thirty-day and seventy-day periods

begin to run anew from a subsequent arrest or indictment rather than from the date

of the original arrest or indictment. 18 U.S.C. § 3161(d)(1); United States v.

Rubin, 733 F.2d 837, 840 (11th Cir. 1984); see also United States v. Duque, 62 F.3d

1146, 1150 (9th Cir. 1995); United States v. Giambrone, 920 F.2d 176, 179 (2d Cir.

1990).

C. Count I: The Conspiracy Charge

      We now apply these general principles to the situation presented in this case.

We first observe that the district court did not err in determining that Brown was

not brought to trial within the seventy-day period after the first indictment, as

required under § 3161(c)(1). Thus, the July 5, 1994 order properly dismissed the

first indictment under § 3162(a)(2).

      Count I of the second indictment then charged Brown with conspiracy to

possess with intent to distribute cocaine. This was the same charge alleged in the

first indictment against Brown. Thus, if the first indictment should have been

dismissed with prejudice, the district court also properly dismissed Count I with



                                          10
prejudice.

      The dilemma here is that even though the district court’s July 5, 1994 order

should have stated whether the dismissal was with or without prejudice, the district

court failed to do so. See United States v. Taylor, 487 U.S. 326, 336-37, 343

(1988). Because the district court did not specify to the contrary in its July 5, 1994

order, the Government advocates a default rule and contends that the dismissal of

the first indictment should be deemed without prejudice. Brown responds that the

Government’s default rule would not be appropriate, considering there is no

preference for either a with or without prejudice dismissal under § 3162(a)(2). In

addition, Brown asserts that the first dismissal should have the effect of a dismissal

with prejudice because the district court clearly intended that the dismissal of the

first indictment be with prejudice.

      This Court has not answered the question of what should happen when a

dismissal order under § 3162(a)(2) for failure to try an individual within seventy

days fails to specify whether that dismissal is with or without prejudice. However,

this Court has answered the closely-related question of what should happen when a

dismissal order under § 3162(a)(1) for failure to indict within thirty days of arrest

does not state whether that dismissal is with or without prejudice. See United

States v. Bergouignan, 764 F.2d 1503 (11th Cir. 1985); United States v. Dorman,



                                          11
752 F.2d 595 (11th Cir. 1985). Thus, we now examine these similar cases under §

3162(a)(1) for guidance in resolving the dilemma under § 3162(a)(2) in this case.

      1. Dorman

      At issue in Dorman was whether an indictment should be dismissed under §

3162(a)(1) because not returned within thirty days of the defendant’s arrest on the

charges in the first complaint filed against the defendants. 752 F.2d at 597. The

defendants had been arrested in Nebraska on December 8, 1982, and the next day,

a complaint had been filed in the United States District Court for the District of

Nebraska. On January 10, 1983, a second complaint, based on the same

underlying facts as the first complaint, was filed against the defendants in the

Middle District of Florida. On January 13, 1983, a five-count indictment, based on

that Florida complaint, was returned. In the meantime, on January 11, 1983, the

Nebraska complaint had been dismissed at the Government’s request.

      The order dismissing the Nebraska complaint did not state whether the

dismissal was with or without prejudice. However, in considering the defendants’

claim that the Florida indictment should be dismissed as untimely, the Florida

district court applied the factors enumerated in § 3162(a)(1), along with other

factors, to determine whether the Nebraska dismissal should have been with or

without prejudice. After analyzing the relevant factors, the Florida court



                                          12
determined that the Nebraska dismissal should have been without prejudice. Thus,

the Florida court concluded that the dismissal of the Nebraska case did not have a

preclusive effect on the charges brought in the Florida case. The Florida court

ultimately denied the defendants’ request that the Florida indictment be dismissed

under the Speedy Trial Act.

      In Dorman, this Court affirmed the denial of defendants’ request for

dismissal of the Florida indictment. 752 F.2d at 596-98. The Court explained in

Dorman that the timeliness of the Florida indictment was not to be measured from

the date of the Nebraska arrest because the complaint underlying that arrest was no

longer pending at the time of the indictment. Id. at 597. Instead, after the

Nebraska complaint was dismissed, the Government would have had at least

another thirty days under § 3161(d)(1) to indict the defendants, “unless the

dismissal of the Nebraska complaint should have been with prejudice,” in which

case, the charges in the Florida case would have been precluded. Id. at

      The Dorman Court then examined the Florida district court’s conclusion that

the dismissal of the Nebraska complaint was not required to be with prejudice

under § 3162(a)(1). Id. at 597-98. This Court indicated in Dorman that the Florida

district court had followed the correct approach to this type of situation. Id. Thus,

even though the order dismissing the Nebraska complaint was silent on the issue,



                                         13
this Court held in Dorman that the Florida court properly applied the factors

enumerated in § 3162(a) to make its own determination about whether that

dismissal “should have been with prejudice.” Id. (citing United States v. Bittle,

699 F.2d 1201, 1207 (D.C. Cir. 1983)). The Florida district court was not

modifying the Nebraska order but simply determining whether in its opinion the

Nebraska complaint should have been dismissed with or without prejudice.

       Furthermore, this Court held in Dorman that the Florida district court had

not erred in concluding from its analysis of the § 3162(a) factors that the dismissal

of the Nebraska complaint should have been without prejudice. Id. at 598.

Because the dismissal of the Nebraska case should have been without prejudice,

the Florida case was allowed to proceed. Thus, the rule applied in Dorman was to

have the court in a subsequent case analyze the factors set forth in § 3162(a) to

determine whether the dismissal of the first case, which was not declared to be

either with or without prejudice, “should have been with prejudice.”5

       2. Bergouignan

       The rule followed in Dorman was discussed further by this Court in United


       5
         We recognize that an order in one case cannot be amended by an order in a subsequent
case. Thus, the order dismissing Brown’s first indictment could not be amended by the order
dismissing Brown’s second indictment. However, the rule set forth in both Dorman and
Bergouignan is not for the court to amend the first dismissal order but to examine that order to
determine what its effect should be. See Bergouignan, 764 F.2d at 1508; Dorman, 752 F.2d at
597-98.

                                               14
States v. Bergouignan, 764 F.2d 1503 (11th Cir. 1985). As in Dorman, the issue in

Bergouignan was whether an indictment should be dismissed under § 3162(a)(1)

because not returned within thirty days of the defendants’ arrest on the charges in

the first complaint filed against them. The defendants in Bergouignan had been

arrested and a complaint had been filed against them on July 14, 1981. On July 28,

1981, the government requested an additional thirty days to file an indictment, and

the government’s request was granted the same day. Thus, the government had

until September 14, 1981 to file an indictment. The government still had not filed

an indictment on September 16, 1981, when it filed a motion to dismiss the

complaint. That same day, a magistrate judge granted the government’s motion

and entered an order dismissing the complaint. The magistrate judge did not

specify in that order whether the dismissal was with or without prejudice.

      Approximately two years later, on September 22, 1983, a grand jury

returned an indictment based on a second complaint against the Bergouignan

defendants in a separate case but on the same charges set forth in the first

complaint. The defendants filed a motion to dismiss the indictment as untimely

under the Speedy Trial Act.

      The pivotal issue was whether the July 14, 1981 complaint had been

dismissed after the period for filing an indictment had expired on September 14,



                                          15
1981. See Bergouignan, 764 F.2d at 1507. The government argued that a pretrial

motion filed by a defendant had resulted in ten days of excludable time between

the defendants’ arrest on July 14, 1981, and the dismissal of the complaint on

September 16, 1981. With these ten days excluded, the original complaint would

have been dismissed before the time for indictment expired in 1981, and dismissal

of the September 22, 1983 indictment would not be required.

      The district court denied the defendants’ motion to dismiss the September

22, 1983 indictment. The district court did not explain why but simply stamped

“Denied” on the face of the motion. See Bergouignan, 764 F.2d at 1507 & n.8. As

a result, the record on appeal in Bergouignan was insufficient for this Court to

determine whether the district court correctly had denied the motion to dismiss the

1983 indictment. Therefore, this Court remanded the Bergouignan case to the

district court. Id. at 1507.

      In Bergouignan, this Court instructed the district court on remand to

determine whether the original, July 14, 1981 complaint was dismissed before or

after the expiration of the period set forth in § 3161(b) for the return of an

indictment in 1981. Id. If the original complaint had been dismissed on the

government’s motion before that period expired, the time for bringing an

indictment would have been reset under § 3161(d)(1). Id. Under these



                                           16
circumstances, the Bergouignan Court explained that the September 22, 1983

indictment would have been timely for Speedy Trial Act purposes, and defendants’

motion to dismiss that indictment would properly have been denied. Id.

      On the other hand, the Bergouignan Court made clear that if the July 14,

1981 complaint was dismissed after the time for bringing an indictment in 1981

had expired, § 3162(a)(1) would have been triggered. Using the analysis from

Dorman as a model, the Bergouignan Court explained that the district court would

have to “determine whether th[e] dismissal [of the July 14, 1981 complaint] should

have been with or without prejudice, taking into consideration the factors

enumerated in section 3162(a)(1).” Id. at 1508 (citing United States v. Bittle, 699

F.2d 1201, 1207 (D.C. Cir. 1983)). If, as was true in Dorman, the July 14, 1981

complaint should have been dismissed without prejudice, dismissal of the

September 22, 1983 indictment would not be required. Bergouignan, 764 F.2d at

1508. However, if the July 14, 1981 complaint should have been dismissed with

prejudice, the Bergouignan Court instructed the district court that it would be

required to dismiss the September 22, 1983 indictment as well. Id.

      3. Application to Brown’s Case

      The rule followed in Dorman and Bergouignan originated from and was

probably stated most clearly in United States v. Bittle, 699 F.2d 1201 (D.C. Cir.



                                         17
1983): “When a complaint is dismissed after the thirty-day period for indictment

has elapsed, and there is no determination whether the dismissal is with or without

prejudice, a subsequently filed indictment should be dismissed only if the

complaint should have been dismissed with prejudice.” 699 F.2d at 1207. Other

circuits also follow this rule. See, e.g., United States v. Miller, 23 F.3d 194, 196

(8th Cir. 1994); United States v. Caparella, 716 F.2d 976, 977-80 (2d Cir. 1983).

       Since subsections (a)(1) and (a)(2) of § 3162 both provide, in identical

language, that the determination about whether a dismissal under the Speedy Trial

Act should be with or without prejudice is to be made based on consideration of

the same enumerated factors, we find no principled basis for not applying the same

rule under both subsections. Thus, when charges in an initial indictment are

dismissed after the seventy-day period for trial has elapsed, and the dismissal order

does not state whether the dismissal was with or without prejudice, those same

charges should be dismissed from a subsequent indictment only if, under the

factors set forth in § 3162(a)(2), the initial indictment should have been dismissed

with prejudice.6 Accordingly, in this case, Count I of the second indictment should

       6
          We observe that instituting the rule requested by the Government--that if a court fails
to declare whether a dismissal under § 3162(a)(2) is with or without prejudice, that dismissal will
be deemed without prejudice by default--would be inconsistent with the plain language of §
3162(a)(2), which does not create a preference for either dismissal with or without prejudice and
requires consideration of specifically-enumerated factors to determine which type of dismissal is
appropriate in a particular case. See 18 U.S.C. § 3162(a)(2); United States v. Taylor, 487 U.S.
326, 335-36 (1988).

                                                18
be dismissed only if the first indictment should have been dismissed with

prejudice.

      Like the district court in Dorman, the district court in its August 12, 1995

order properly analyzed whether the dismissal of the first indictment should have

been with prejudice by applying the three factors enumerated in § 3162(a)(2) and

considering whether there had been any prejudice to the defendant. See Dorman,

752 F.2d at 597-98. In doing this analysis, the district court essentially found that

the offense was not a serious offense, that the facts and circumstances leading to

the dismissal of the first indictment all weighed heavily against the Government,

that dismissal with prejudice was consistent with the fair administration of justice

under the Speedy Trial Act, and that Brown had suffered prejudice as a result of

the Government’s actions in his case. Based on these findings, the district court

concluded that the dismissal of the first indictment should have been with

prejudice. The district court did not abuse its discretion in reaching this

conclusion. Therefore, we affirm the dismissal of Count I of Brown’s second

indictment.

C. Counts II through XI: The Attempt and Use-of-Communication-Facility
Charges

      In its August 12, 1995 order, the district court concluded that the charges in

Counts II through XI of the second indictment should be dismissed because they

                                          19
are “simply a more detailed version of the crimes described in the initial

complaint.” We disagree.

      Even though Counts II through XI are based on the same underlying facts as

the conspiracy charge in the first indictment, which we have decided should have

been dismissed with prejudice, “the government is not barred from using the

underlying facts in that offense as the basis for a charge that [the defendant]

committed a different offense.” United States v. Stricklin, 591 F.2d 1112, 1120

(5th Cir. 1979). This is because “‘the dismissal of the indictment, with or without

prejudice, does not amount to the determination of any of the intrinsic underlying

facts. What, and all, it stands for, is that the defendant cannot be reindicted or tried

for that same charge.’” Id. (quoting United States v. Rivero, 532 F.2d 450, 457 (5th

Cir. 1976)).

      Count II of the second indictment charges Brown with knowingly and

intentionally attempting to possess with intent to distribute cocaine, while Counts

III through XI charge Brown with use of a communication facility in the

commission of a drug felony. These are distinct substantive offenses, requiring

proof of different elements, from the conspiracy charge in the first indictment.

Hence, the Government should have been allowed to proceed against Brown on

Counts II through XI. Id. See also United States v. Derose, 74 F.3d 1177, 1182-84



                                           20
(11th Cir. 1996) (concluding that dismissal with prejudice of complaint charging

defendants with conspiracy to possess with intent to distribute marijuana did not

preclude subsequent indictment charging defendants with possession with intent to

distribute marijuana); United States v. Giwa, 831 F.2d 538, 541-43 (5th Cir. 1987)

(explaining that the Speedy Trial Act requires dismissal only of the charges alleged

in a complaint previously dismissed with prejudice, and not of charges that “while

arising from the same criminal transaction, are separate and distinct offenses each

requiring proof of different elements”).

      Moreover, Brown was indicted in a timely manner on the offenses alleged in

Counts II through XI. As already discussed, under § 3161(d)(1), the Speedy Trial

Act time limits begin to run anew from the filing of a subsequent indictment after a

prior indictment has been dismissed on motion of defendant. See 18 U.S.C. §

3161(d)(1); United States v. Rubin, 733 F.2d 837, 840 (11th Cir. 1984). Brown was

not arrested for or charged with the offenses in Counts II through XI until July 5,

1994. Brown was indicted on Counts II through XI on July 19, 1994.

Consequently, Brown’s indictment on these counts occurred well within the thirty-

day period after his arrest, as required under the Speedy Trial Act. 18 U.S.C. §§

3161(b), 3161(d).

                               IV. CONCLUSION



                                           21
      For the foregoing reasons, we affirm the dismissal with prejudice of Count I

of the indictment. We reverse the dismissal with prejudice of Counts II through XI

and remand to the district court for further proceedings consistent with this

opinion.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.




                                         22
