                                                                           FILED
                           NOT FOR PUBLICATION                                JUL 30 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30385

              Plaintiff - Appellee,              D.C. No. 1:09-cr-00045-JDS-1

  v.
                                                 MEMORANDUM *
JEREMIAH PAUL STEWART,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Montana
                    Jack D. Shanstrom, District Judge, Presiding

                        Argued and Submitted July 13, 2010
                               Seattle, Washington

Before: REINHARDT, GRABER, and PAEZ, Circuit Judges.

       Defendant-Appellant Jeremiah Paul Stewart appeals the district court’s order

denying his motion to dismiss the indictment with prejudice after finding a

violation of the Speedy Trial Act. Our review is for abuse of discretion. United




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
States v. Taylor, 487 U.S. 326, 335 (1988). We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      Stewart was indicted three times for robbery. The first indictment was

dismissed without prejudice at the government’s request under Federal Rule of

Criminal Procedure 48(a). Subsequently finding a violation of the Speedy Trial

Act,1 the district court dismissed the second indictment without prejudice over

Stewart’s objection that it should be dismissed with prejudice. After the

government filed a third indictment, Stewart moved to dismiss the indictment with

prejudice as a result of the prior violation of the Speedy Trial Act. The district

court denied this motion, and Stewart pled guilty, preserving his right to appeal the

court’s decision to dismiss without prejudice.

      Stewart contends that the district court erred in dismissing the second

indictment without prejudice. Having reviewed the district court’s application of

the factors outlined in the Speedy Trial Act, 18 U.S.C. § 3162(a)(2), we conclude




      1
         On appeal, the parties do not dispute the district court’s determination that
a Speedy Trial Act violation occurred. The government unsuccessfully argued
before the district court that, because Stewart was joined with another co-defendant
in his second indictment, no Speedy Trial Act violation occurred. See 18 U.S.C. §
3161(c)(1). Because neither party raised the issue here, we deem it waived. See
United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (failure to raise issue in
opening brief generally results in waiver).

                                          -2-
that the district court did not abuse its discretion in granting the dismissal without

prejudice.

         In deciding whether to dismiss a case with or without prejudice to remedy a

Speedy Trial Act violation, a court must consider three factors: “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 this chapter and on the

administration of justice.” Id. Prejudice to a defendant is another factor that a

court may consider. United States v. Lewis, 518 F.3d 1171, 1176 (9th Cir. 2008).

Here, the district court correctly determined that (1) robbery was a serious crime,

(2) Stewart contributed to the delay by raising a last-minute, and ultimately

discredited, alibi defense, and (3) allowing reprosecution was not contrary to the

administration of justice or the Speedy Trial Act. As to prejudice, the court

properly determined that the delay did not impede Stewart’s ability to prepare a

defense or otherwise unfairly constrain his liberty. See Taylor, 487 U.S. at 340.

Accordingly, Stewart’s challenge to the district court’s dismissal without prejudice

fails.

         AFFIRMED.




                                          -3-
