                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   January 7, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 09-2171
                                                 (D.C. No. 1:05-CR-00469-JB-2)
    EDUARDO HERNANDEZ-MEJIA,                                (D. N.M.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, and PORFILIO and BRORBY, Senior Circuit
Judges.


         In April 2008, over three years after he made his initial appearance in the

district court in March 2005, defendant-appellant Eduardo Hernandez-Mejia was

convicted by a jury of conspiring to distribute heroine and cocaine, distributing

cocaine, and using a telephone to facilitate drug-trafficking offenses. The district




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
court sentenced Mr. Hernandez-Mejia to 178 months’ imprisonment and five

years’ supervised release.

      On appeal the issue is whether Mr. Hernandez-Mejia’s right to a speedy

trial under the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, was violated, as

Mr. Hernandez-Mejia argued in a pro se motion to dismiss indictment that was

submitted to the district court in February 2008 and denied by the district court

during trial. 1 Although Mr. Hernandez-Mejia’s court-appointed appellate counsel

has filed a brief and a related motion to withdraw under Anders v. California,

386 U.S. 738 (1967), declaring that this appeal is “wholly frivolous,” Aplt.

Opening Br. at 1, we conclude that this appeal not only has arguable merit but in

fact requires a reversal for violation of the Speedy Trial Act.

      Exercising jurisdiction under 28 U.S.C. § 1291, we therefore REVERSE

the district court’s denial of Mr. Hernandez-Mejia’s motion to dismiss, and

REMAND this action to the district court to determine, in accordance with

18 U.S.C. § 3162(a)(2), whether the dismissal of the superseding indictment filed

in October 2005 should be with or without prejudice.




1
       In his pro se motion to dismiss indictment, Mr. Hernandez-Mejia did not
assert that his right to a speedy trial under the Sixth Amendment had been
violated. As a result, the district court addressed only his statutory claim under
the Speedy Trial Act. We will likewise limit our analysis to the Speedy Trial Act
claim.

                                         -2-
                                INTRODUCTION

      Because this case was pending for over three years before Mr. Hernandez-

Mejia’s trial commenced in April of 2008, the proceedings in the district court

were extensive. They involved, among other things, numerous motions for “ends

of justice” trial continuances under 18 U.S.C. § 3161(h)(7)(A), 2 several motions

in limine, and a lengthy process to determine whether Mr. Hernandez-Mejia was

competent to stand trial. To resolve this appeal, however, we can focus on only a

few motions and a more limited time period.

      As set forth below, we have concluded that the trial-continuance orders

entered by the district court on March 9, April 16, May 14, and June 13, 2007 did

not comply with the requirements of 18 U.S.C. § 3161(h)(7)(A) and (B) as

construed by this court’s case law. Consequently, the period between March 9

and August 20, 2007, 3 is not excluded in computing the time within which Mr.

Hernandez-Mejia’s trial was required to commence under the Speedy Trial Act. 4


2
       In October 2008, Congress redesignated 18 U.S.C. § 3161(h)(8) as
18 U.S.C. § 3161(h)(7). See United States v. Toombs, 574 F.3d 1262, 1266 n.3
(10th Cir. 2009). To avoid confusion, we use the current numbering throughout
this order and judgment.
3
       On August 20, 2007, Mr. Hernandez-Mejia’s counsel filed a motion for a
pretrial psychiatric/psychological examination, and the filing of that motion tolled
the running of the speedy-trial clock. See 18 U.S.C. § 3161(h)(1)(A).
4
      In its reply brief filed on October 22, 2010, the government claimed that
the period between March 27, 2006, when it filed several motions in limine, and
April 30, 2007, when the district court entered written orders ruling on the
                                                                       (continued...)

                                         -3-
Because this time period exceeded the 70 days allowed by the Act, see 18 U.S.C.

§ 3161(c)(1), the Act was violated.

                            PROCEEDINGS BELOW

      On January 14, 2008, the government filed a pleading entitled “United

States’ Declination to Address the Merit of Defendant Hernandez-Mejia’s Pro Se

Motion to Dismiss Indictment Based on a Violation of the Speedy Trial Act.”

R., Doc. 390. In this pleading the government stated:

             1. Defendant Hernandez-Mejia filed a Pro Se Motion asking
      the court “to dismiss the indictment [under the Speedy Trial Act] due
      to the excessive delay to bring the case to trial . . . .” Def Mot. p.1.

            2. The Court has appointed Edward Bustamante as counsel of
      record for Defendant Hernandez-Mejia. Mr. Bustamante did not file
      Defendant Hernandez-Mejia’s Pro Se Motion on his behalf.

            3. On September 4, 2007, the Court ordered that Defendant
      Hernandez-Mejia undergo a psychiatric/psychological examination.
      The Court has yet to rule on the findings of Mr. Eric Westfried,
      Ph.D.



4
 (...continued)
motions, is excludable under 18 U.S.C. § 3161(h)(1)(D). But at most these
pretrial motions tolled the speedy-trial clock only from March 27 through
December 21, 2006, which was 30 days after the hearing on November 21, 2006,
when the district court took the motions under advisement. See 18 U.S.C.
§ 3161(h)(1)(D) and (H); Henderson v. United States, 476 U.S. 321, 329, 330
(1986) (“Congress intended [§ 3161(h)(1)(D)] to exclude from the Speedy Trial
Act’s 70-day limitation all time between the filing of a motion and the conclusion
of the hearing on the motion[,]” and “[§ 3161(h)(1)(H)] permits an [additional]
exclusion of 30 days from the time a motion is actually ‘under advisement’ by the
court.”). Further, there are no relevant excludable periods because of any events
involving Mr. Hernandez-Mejia’s codefendants. See 18 U.S.C. § 3161(h)(6).

                                        -4-
              4. Defendant Hernandez-Mejia filed his Pro Se Motion during
       the time period in which the Court has Ordered that he undergo a
       psychiatric/psychological examination.

             . . . [F]or all the above reasons, [the United States] declines to
       address the merit of Defendant Hernandez-Mejia’s Pro Se Motion.

Id. at 1-2.

       A month later the government filed a pleading entitled “United States’

Clarification of Record Concerning Previous Filing.” Id., Doc. 394. This

pleading informed the district court that Mr. Hernandez-Mejia had in fact not

filed his motion with the court, but had only mailed a copy to counsel for the

government. Consequently, to clarify the purpose of its “Declination” pleading,

the government submitted “a copy of Defendant Hernandez-Mejia’s referenced

Motion . . . into the Court record as Government Exhibit 1.” Id. at 1.

       After Mr. Hernandez-Mejia filed a reply in support of his motion, the

district court held a hearing on the motion on March 19, 2008. At the beginning

of the hearing the government argued that there was “no issue before this Court”

regarding the Speedy Trial Act because the motion to dismiss had never been

filed, it was “written by the defendant himself and not filed by his attorney,” and

“it occurred during a time when he was under -- the Court had ordered that he be

evaluated.” Id., Doc. 523 at 4-5. Counsel for Mr. Hernandez-Mejia, Edward O.

Bustamante, responded as follows:




                                          -5-
              . . . Judge, I did not join the motion.

              ....

              . . . Judge, on Mr. Mejia’s behalf, I will state frankly to the
       Court that I have discussed this motion with him. It is a pro se
       motion, Your Honor. And I sympathize with him, but it is my belief,
       Judge, that given the chronology of the case, given the complications
       in the case, that this motion does fail.

              On the other hand, Your Honor, I am his counsel and I have
       told him that I will relay his concerns, Your Honor, to the Court and
       ask the Court to rule on the pleadings . . . .

              ....

              Again, Judge, I cannot in good faith say to the Court [that] I
       think you should dismiss this case. [But it is] Mr. Mejia’s request,
       Your Honor, that the Court look at what’s happened to him and . . .
       consider the fact that he’s remained in custody for three years . . . .

Id. at 5-7.

       At the conclusion of the hearing, the district court said that it would

address the merits of Mr. Hernandez-Mejia’s pro se motion despite the arguments

advanced by the government. It said that although it was inclined to deny the

motion, it needed additional time to review the record and the chronology of the

case, and the court thus took the motion under advisement.

       On April 8, 2008, the second day of Mr. Hernandez-Mejia’s trial, the

district court entered a memorandum opinion and order denying the pro se

motion, reasoning as follows:

             The Court agrees with the United States that Hernandez-Mejia
       has an appointed counsel who did not file Hernandez-Mejia’s motion

                                            -6-
on his behalf, and that, at the time Hernandez-Mejia filed his motion,
the Court had ordered him to undergo a psychiatric/psychological
exam and had not yet ruled on his competency. The Court also notes
that, at the time Hernandez-Mejia filed his motion, there was a stay
on proceedings that was not lifted until March 19, 2008. Regardless
of these issues, however, the Court will address the merits of
Hernandez-Mejia’s motion. Because the Court believes that the
Speedy Trial Act was properly tolled, the Court finds that
Hernandez-Mejia’s rights under the Speedy Trial Act were not
violated and thus will deny his motion.

       The Court notes that the complexity of this case has
contributed to the appropriate delay. In March of 2005, the United
States filed a motion to designate the case as a complex case [under
18 U.S.C. § 3161(h)(7)(B)(ii)] and order a non-standard discovery
order. . . . In April of 2005, the Court granted the United States’
motion for a status conference for the purpose of designating the case
as a complex case and issuing a non-standard discovery order. In
May of 2005, the Court issued an order designating this case as a
complex case and setting a non-standard discovery schedule to
accommodate such complexity. The order designating the case as a
complex case scheduled a jury trial for January 23, 2006. . . .

       On January 3, 2006, Hernandez-Mejia filed a motion to
continue his trial, which the Court granted. From that point until the
present time, Hernandez-Mejia, and the United States, have filed
numerous motions to continue. The Court notes that the majority of
these requests were from Hernandez-Mejia, and were requests to
vacate and to continue his trial. . . . . Thus, while the Court
acknowledges that Hernandez-Mejia’s case has been ongoing since
March of 2005, the case’s lengthy continuation has not caused a
violation of the Speedy Trial Act. Rather, the majority of the delay
has been caused by the Court’s appropriate granting of Hernandez-
Mejia’s requests to vacate and to continue his trial as well as the
Court’s designation of the case as complex. . . .

      ....

. . . [A]ll of the delay resulting from the requests for continuance is
not calculated for purposes of the Speedy Trial Act. Furthermore, for
each such continuance, the Court tried to carefully set forth, in the

                                  -7-
      record, its reasons for finding that the ends of justice served
      outweighed the interests of the public and the defendant in a speedy
      trial.

R., Doc. 436 at 16-18, 22 (footnote omitted).

      During the trial Mr. Hernandez-Mejia made an oral pro se motion for the

district court to reconsider its denial of his motion to dismiss indictment. The

court denied the motion for the following reasons:

      Hernandez-Mejia does not specifically argue that the Court failed to
      make adequate on-the-record findings to support its exclusion of any
      particular period or periods of time, as the Defendant did in United
      States v. Williams, 511 F.3d 1044, 1056-59 (10th Cir. 2007). As the
      Court stated in its previous opinion, Hernandez-Mejia has the burden
      to support his motion. See 18 U.S.C. § 3162(a)(2) . . . . This case is
      a complicated case in which the Court has granted numerous motions
      to continue. Hernandez-Mejia fails to argue that any particular order
      to continue was insufficient, or that any particular period or periods
      of time were improperly excluded. Accordingly, Hernandez-Mejia
      did not carry the burden to support his motion.

Id., Doc. 454 at 2.

                          PROCEEDINGS ON APPEAL

      Mr. Hernandez-Mejia’s court-appointed appellate counsel filed an opening

brief in this appeal under Anders v. California, 386 U.S. 738 (1967), in which he

“state[d] and affirm[ed] that, after an extensive and conscientious review of the

record on appeal in this matter, the appeal of Eduardo Hernandez-Mejia’s

conviction and sentence . . . is wholly frivolous.” Aplt. Opening Br. at 1.

Counsel informed this court, however, that a potentially appealable issue was

whether the district court erred in denying Mr. Hernandez-Mejia’s motion to

                                         -8-
dismiss indictment based on a violation of the Speedy Trial Act. After reviewing

the Anders brief, this court determined that a response from the government

would be helpful, and the court therefore entered an order directing the

government:

      to address with particularity each event that potentially or allegedly
      tolled the Speedy Trial clock, including specific citation to the record
      wherein the district court made clear its reasons for granting each
      ends-of-justice continuance under the Act. See United States v.
      Toombs, 574 F.3d 1262 (10th Cir. 2009). The government is directed
      to address the merit of those tolling issues and arguments.

Order filed on July 29, 2010 at 1-2. The government filed an answer brief and a

supplemental record addressing the Speedy Trial Act issues, and both sides have

also filed reply briefs.

                                    ANALYSIS

      I. Mr. Hernandez-Mejia’s Pro Se Status

      The government argues that the district court abused its discretion in

considering Mr. Hernandez-Mejia’s Speedy Trial Act claim because “[a]

defendant in a criminal case has no right to represent himself on some aspects of

the case, and to have an attorney appointed at public expense to represent him on

other aspects of the case.” Aplee. Answer Br. at 10. According to the

government,

      [I]n this case, Hernandez’s lawyer told the district court that there
      was no legal basis for the court to dismiss the case, and that the
      lawyer could not in good faith argue the position his client was
      seeking to advance. Under these peculiar circumstances, the district

                                         -9-
      court should have adopted the position advocated by the lawyer and
      the prosecutor, and refused to consider the [motion to dismiss] filed
      by defendant.

Id. at 10-11.

      Although the government is correct that a criminal defendant does not have

a “constitutional right to a hybrid form of representation,” United States v.

McKinley, 58 F.3d 1475, 1480 (10th Cir. 1995), district courts nonetheless have

discretion to accept pro se filings made by represented defendants, see United

States v. Bennett, 539 F.2d 45, 49 (10th Cir. 1976) (“[P]ermission for [hybrid

representation] [is] recognized as being discretionary with the trial court.”);

United States v. Hill, 526 F.2d 1019, 1024-25 (10th Cir. 1975). The district court

did not abuse its discretion in considering Mr. Hernandez-Mejia’s pro se motion.

When his motion was submitted to the court in February 2008, he had been in

pretrial detention for almost three years. This was a long delay, and we commend

the district court for its decision to examine thoroughly the question whether Mr.

Hernandez-Mejia’s right to a speedy trial had been violated. Further, we see no

abuse of discretion by the district court arising from the manner in which the

motion to dismiss indictment was submitted to the court or from the absence of a

resolution at that time of Mr. Hernandez-Mejia’s competency to stand trial.

      Before proceeding to the merits, we note that, as set forth above, the

district court denied Mr. Hernandez-Mejia’s motion for reconsideration on the

ground that he did not carry his burden under 18 U.S.C. § 3162(a)(2) of

                                         -10-
supporting his motion to dismiss because he “fail[ed] to argue that any particular

order to continue was insufficient, or that any particular period or periods of time

were improperly excluded.” R., Doc. 454 at 2. But this was not the basis of the

court’s initial denial of Mr. Hernandez-Mejia’s motion to dismiss, so we do not

address this ground for denial, particularly in light of the lengthy pretrial delay

and the obvious difficulties faced by a pro se defendant whose counsel chooses

not to raise a speedy-trial challenge. Instead, in accordance with the briefing

order that this court entered on July 29, 2010, and with the approach initially

taken by the district court, we have carefully reviewed all the proceedings before

the district court to determine whether the Speedy Trial Act was violated.

      II. Speedy Trial Act

      A. Standard of Review

      We review for an abuse of discretion the denial of a motion to dismiss

based on a violation of the Speedy Trial Act. See United States v. Larson,

No. 09-4172, __ F.3d __, 2010 WL 5151635, at *1 (10th Cir. Dec. 20, 2010).

We also review the decision to grant an ends-of-justice continuance for an abuse

of discretion. See Toombs, 574 F.3d at 1268. The district court’s compliance

with the legal requirements of the Speedy Trial Act is reviewed de novo, and its

underlying factual findings are reviewed for clear error. Id.




                                         -11-
      B. Ends-of-Justice Continuances

      The Speedy Trial Act requires that a federal criminal trial commence within

70 days of the filing of the information or indictment or of the defendant’s initial

appearance, “whichever date last occurs.” 18 U.S.C. § 3161(c)(1). Among other

exclusions, the Act excludes from this 70-day period “[a]ny period of delay

resulting from a continuance . . . if the judge granted such continuance on the

basis of his findings that the ends of justice served by taking such action

outweigh the best interest of the public and the defendant in a speedy trial.”

Id. § 3161(h)(7)(A). “This ends-of-justice exclusion is meant to be a rarely used

tool for those cases demanding more flexible treatment.” Larson, 2010 WL

5151635, at *2 (internal quotation marks omitted).

      In determining whether to grant an ends-of-justice continuance, the district

court must consider the following factors:

            (i) Whether the failure to grant such a continuance in the
      proceeding would be likely to make a continuation of such
      proceeding impossible, or result in a miscarriage of justice.

            (ii) Whether the case is so unusual or so complex, due to the
      number of defendants, the nature of the prosecution, or the existence
      of novel questions of fact or law, that it is unreasonable to expect
      adequate preparation for pretrial proceedings or for the trial itself
      within the time limits established by this section.

             ....

            (iv) Whether the failure to grant such a continuance in a case
      which, taken as a whole, is not so unusual or so complex as to fall
      within clause (ii), would deny the defendant reasonable time to

                                        -12-
      obtain counsel, would unreasonably deny the defendant or the
      Government continuity of counsel, or would deny counsel for the
      defendant or the attorney for the Government the reasonable time
      necessary for effective preparation, taking into account the exercise
      of due diligence.

18 U.S.C. § 3161(h)(7)(B). Also, the district court must “set[] forth, in the record

of the case, either orally or in writing, its reasons for finding that the ends of

justice served by the granting of such continuance outweigh the best interests of

the public and the defendant in a speedy trial.” Id. § 3161(h)(7)(A).

      This court has interpreted strictly the requirements of § 3161(h)(7)(A) and

(B). We have held (1) that to satisfy the requirements of § 3161(h)(7)(A), the

district court must make explicit oral or written on-the-record findings explaining

the reasons why a trial continuance is necessary, unless the facts supporting the

continuance “are obvious and set forth in the motion for the continuance itself,”

United States v. Occhipinti, 998 F.2d 791, 797 (10th Cir. 1993) (internal

quotation marks omitted); (2) that “the record must clearly establish [that] the

district court considered the proper factors at the time such a continuance was

granted,” Toombs, 574 F.3d at 1269; (3) that “it must be clear from the record that

the trial court struck the proper balance when it granted the continuance,” United

States v. Williams, 511 F.3d 1044, 1056 (10th Cir. 2007) (alteration and internal

quotation marks omitted); and (4) that although adequate trial-preparation time is

a permissible reason for granting a continuance and tolling the Act, “such a




                                          -13-
reason must be supported by the information and evidence presented to the

district court,” United States v. Gonzales, 137 F.3d 1431, 1435 (10th Cir. 1998).

      The practical application of these principles was explained in Toombs:

              Our decisions in Williams and Gonzales indicate that the
      record, which includes the oral and written statements of both the
      district court and the moving party, must contain an explanation of
      why the mere occurrence of the event identified by the party as
      necessitating the continuance results in the need for additional time.
      Williams, 511 F.3d at 1058; Gonzales, 137 F.3d at 1434-35. A
      record consisting of only short, conclusory statements lacking in
      detail is insufficient. For example, it is insufficient to merely state
      that counsel is new and thus needs more time to adequately prepare
      for trial or that counsel or witnesses will be out of town in the weeks
      preceding trial and therefore more time is needed to prepare for trial.
      Williams, 511 F.3d at 1058; Gonzales, 137 F.3d at 1434-35. Simply
      identifying an event, and adding the conclusory statement that the
      event requires more time for counsel to prepare, is not enough.
      Williams, 511 F.3d at 1058; Gonzales, 137 F.3d at 1434-35.

Toombs, 574 F.3d at 1271-72 (footnote omitted).

      Applying these demanding standards to the district court’s orders granting

ends-of-justice continuances in this case, we conclude that the orders entered on

March 9, April 16, May 14, and June 13, 2007 did not comply with the

requirements of § 3161(h)(7)(A) and (B). Thus, the entire period from March 9 to

August 20, 2007, 5 is not excluded in computing the time within which




5
       As explained above, on August 20, 2007, Mr. Hernandez-Mejia’s counsel
filed a motion for a pretrial psychiatric/psychological examination, and the filing
of that motion tolled the running of the speedy-trial clock. See 18 U.S.C.
§ 3161(h)(1)(A).

                                        -14-
Mr. Hernandez-Mejia’s trial was required to commence under the Speedy Trial

Act. Because this period exceeds 70 days, the Act was violated.

      To begin with, we can assume that the district court’s May 2005

designation of this case as a complex case under 18 U.S.C. § 3161(h)(7)(B)(ii)

justified the continuance from January 29 until March 12, 2007, to permit

preparation by a new attorney, Edward O. Bustamante, who had been appointed to

represent Mr. Hernandez-Mejia on December 12, 2006. But the additional

continuance orders entered on March 9, April 16, and May 14, 2007, did not set

forth any specific, nonconclusory, reasons why further continuances were

necessary. The underlying motions filed by Mr. Bustamante on February 19,

April 11, and May 14, likewise merely contained short, boilerplate statements that

were conclusory and unsupported by any specific details. These three

continuance orders thus failed to comply with this circuit’s requirements under

the Speedy Trial Act.

      Next, the June 13, 2007, order vacated the trial setting of July 16 and

granted a continuance until September 17, 2007. But the government’s motion

for continuance filed on June 11 had informed the district court only that the

prosecutor was unavailable for trial from July 8 to July 21, and neither the district

court nor the government offered any explanation why the trial needed to be

postponed until September. The order entered on June 13 therefore could not toll




                                         -15-
the speedy-trial clock. See Larson, 2010 WL 5151635, at *4; Gonzales, 137 F.3d

at 1434-35.

      Further, that three of the continuance motions were filed on behalf of Mr.

Hernandez-Mejia is not a factor in determining whether the Speedy Trial Act was

violated, because “[f]iling a motion to continue the trial date is not a waiver of

the defendant’s Speedy Trial Act rights.” United States v. Allen, 603 F.3d 1202,

1208 n.5 (10th Cir. 2010) (citing Zedner v. United States, 547 U.S. 489 (2006)

and Williams, 511 F.3d at 1054-55), cert. denied, 2010 WL 4271863 (U.S. Nov.

29, 2010) (No. 10-7249). As this court has explained, “defense responsibility for

continuances does not unwind Speedy Trial Act violations. The Speedy Trial Act

was intended not only to protect the interests of defendants, but was also

‘designed with the public interest firmly in mind.’” Toombs, 574 F.3d at 1273

(quoting Zedner, 547 U.S. at 501); see also id. (“[T]he district court and

government are no less responsible under the Speedy Trial Act merely because it

is a defendant who requests a continuance.”).

      Finally, although this court has recognized that “the ends-of-justice

findings mandated by the [Speedy Trial] Act may be entered on the record after

the fact, [so long as they are] not . . . made after the fact,” Williams, 511 F.3d at

1055 (internal quotation marks omitted); see Toombs, 574 F.3d at 1269 (findings

must be entered on record before court rules on motion to dismiss), the district

court’s later order denying Mr. Hernandez-Mejia’s motion to dismiss did not set

                                          -16-
forth any specific ends-of-justice findings pertaining to the continuance orders

entered in 2007.

      C. Remedy

      “The sanction for violation of the [Speedy Trial] Act is mandatory

dismissal of the indictment.” Williams, 511 F.3d at 1049 (citing 18 U.S.C.

§ 3162(a)(2)). “However, the indictment may be dismissed with or without

prejudice.” Larson, 2010 WL 5151635, at *5 (citing 18 U.S.C. § 3162(a)(2)).

It is “the general practice of this court [to] remand [the] case to the district court

to assess whether the dismissal should be with or without prejudice.” Gonzales,

137 F.3d at 1436. But we have emphasized that “[d]ismissals with prejudice

should be reserved for more egregious violations of the Speedy Trial Act.”

Larson, 2010 WL 5151635, at *9 (internal quotation marks omitted).

      We remand this action to the district court for a determination of whether

the superseding indictment filed in October 2005 should be dismissed with or

without prejudice. “[T]he district court retains broad discretion whether to

dismiss the indictment with or without prejudice.” Toombs, 574 F.3d at 1276

(internal quotation marks omitted). “On remand, the district court shall consider

the following non-exclusive factors: the seriousness of the offense, the facts and

circumstances of the case that led to the dismissal, the impact of a reprosecution

on the administration of the Speedy Trial Act and on the administration of justice,




                                         -17-
and prejudice to [Mr. Hernandez-Mejia].” 6 Larson, 2010 WL 5151635, at *9

(citing 18 U.S.C. § 3162(a)(2); additional citations omitted).

                                 CONCLUSION

      We REVERSE the district court’s denial of Mr. Hernandez-Mejia’s pro se

motion to dismiss indictment based on a violation of the Speedy Trial Act, and

REMAND this action for the district court to determine whether the superseding

indictment filed in October 2005 should be dismissed with or without prejudice.

Further, we DENY the motion to withdraw filed by Mark D. Jarmie, Esq. and

Jarmie & Associates. Because we reverse and remand based on a violation of the

Speedy Trial Act, we do not need to address the additional claims that

Mr. Hernandez-Mejia asserted in the pro se brief that he submitted to this court

on June 24, 2010.


                                                    Entered for the Court


                                                    Harris L Hartz
                                                    Circuit Judge




6
      We emphasize the apparent lack of any prejudice to Mr. Hernandez-Mejia’s
defense arising from the delay.

                                        -18-
