                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 13 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                             Nos. 00-2138 & 00-2251
                                                   (D.C. No. CR-00-94-BB)
    JOSEPH R. MARTIN,                                     (D. N.M.)

                Defendant-Appellant.                      No. 00-2139
                                                   (D.C. No. CR-96-255-BB)
                                                          (D. N.M.)




                            ORDER AND JUDGMENT            *




Before SEYMOUR and McKAY , Circuit Judges, and           BRORBY , Senior Circuit
Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are

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      This order and judgment is not binding precedent, except under the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. 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.
      Defendant Joseph R. Martin was convicted of threatening to assault and

murder a federal official. Defendant seeks to have his conviction vacated on the

grounds that the district court violated his statutory and constitutional right to a

speedy trial. We affirm.



                                    I. Background



      In district court case No. CR-96-255, defendant was indicted for

threatening to assault and murder a federal official in violation of 18 U.S.C.

§ 115. Defendant was taken into federal custody and arraigned on June 13, 1996.

On July 19, 1996, defendant’s counsel filed a motion requesting that the district

court order a competency examination of defendant. The district court granted

the motion, and defendant underwent a competency examination. On

September 27, 1996, the district court held a competency hearing, and the court

determined that defendant was incompetent to stand trial. Pursuant to 18 U.S.C.

§ 4241(d), the district court therefore ordered defendant committed to the custody

of the Attorney General for competency treatment for a reasonable period of time

not to exceed four months. The district court subsequently extended defendant’s

commitment for an additional four months.




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      On June 11, 1997, the district court held a second competency hearing, and

the court determined that defendant was competent to stand trial. However,

defendant’s counsel subsequently filed an unopposed motion requesting that

defendant be recommitted for further evaluation. The district court granted the

motion and ordered defendant recommitted for a reasonable period of time not to

exceed four months. The court subsequently extended defendant’s commitment

for an additional four months.

      On July 2, 1998, the district court held a third competency hearing, and the

court determined that defendant was incompetent to stand trial. The court

therefore ordered defendant committed for further evaluation, and he remained in

the custody of the Attorney General for the next year. A fourth competency

hearing was subsequently scheduled for August 16, 1999. At the hearing,

defendant requested that the court appoint new counsel to represent him, and the

court granted defendant’s request. Defendant’s new counsel then filed an

unopposed motion requesting another competency examination. The district court

granted the motion, and defendant underwent another competency examination.

After holding a fourth competency hearing, the court entered on order on

January 11, 2000, finding defendant competent to stand trial.

      On January 24, 2000, the government filed a motion to dismiss the

indictment in case No. CR-96-255 without prejudice. The basis of the motion was


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that the seventy-day statutory time limit under the Speedy Trial Act, 18 U.S.C.

§ 3161(c)(1), had expired in July of 1997. The government claimed that, through

inadvertence, it did not discover the violation of the Speedy Trial Act until

January 21, 2000. On February 2, 2000, the district court granted the

government’s motion and dismissed the indictment without prejudice.

      On January 28, 2000, in district court case No. CR-00-94, the government

filed a new criminal complaint against defendant. On February 7, 2000, a bench

trial was held, and the district court found defendant guilty of violating 18 U.S.C.

§ 115. The district court then sentenced defendant to forty-six months in prison.

Because defendant had already been in custody for fifty-five months,    1
                                                                            he was

given credit for time served and was released to serve a three-year term of

supervised release. However, on June 14, 2000, the district court determined that

defendant had violated the terms of his supervised release, and it was revoked.

The district court then sentenced defendant to fourteen months in prison, which

was reduced to five months due to his previous good time credits, and a thirty-

month term of supervised release.




1
      This includes defendant’s incarceration on state charges prior to his transfer
to federal custody.

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                                II. Defendant’s Appeals

       Defendant has filed three separate appeals. First, in appeal No. 00-2139,

defendant is appealing the district court’s dismissal of the original indictment

without prejudice in case No. CR-96-255. Second, in appeal No. 00-2138,

defendant is appealing his conviction in case No. CR-00-94. Third, in appeal No.

00-2251, defendant is appealing the revocation of his supervised release in case

No. CR-00-94. It is important to note, however, that defendant is not challenging

the merits of his conviction or the revocation of his supervised release. Instead,

based on the alleged violations of his statutory and constitutional right to a speedy

trial, defendant’s only claim on appeal is that the district court should have

dismissed the original indictment with prejudice and thereby prohibited the

government from reprosecuting him on the same charges.

       This court does not have jurisdiction over appeal No. 00-2139 because the

district court’s dismissal of the original indictment without prejudice was not an

appealable final judgment.    See United States v. Tsosie , 966 F.2d 1357, 1361

(10th Cir. 1992). Nonetheless, in appeal No. 00-2138, defendant has properly

appealed his conviction in case No. CR-00-94, and we have jurisdiction in appeal

No. 00-2138 to consider defendant’s claim that the district court erred by failing

to dismiss the original indictment with prejudice.   See United States v. Kelley , 849

F.2d 1395, 1397 (11th Cir. 1988) (holding that a defendant may appeal order


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dismissing indictment without prejudice for violation of Speedy Trial Act after

conviction is obtained in subsequent prosecution).


                                  III. Speedy Trial Act

       “The Speedy Trial Act . . . requires that a criminal defendant’s trial

commence within 70 days after his indictment or initial appearance, whichever is

later.” United States v. Hill , 197 F.3d 436, 440 (10th Cir. 1999) (citing 18 U.S.C.

§ 3161(c)(1)). However, “certain periods of delay are excluded [under the Act]

and do not count toward the 70-day limit.”         Id. In particular, “any period of delay

resulting from the fact that the defendant is mentally incompetent . . . to stand

trial” is excluded, see § 3161(h)(4), as is any “delay resulting from any

proceeding, including any examinations, to determine the mental competency . . .

of the defendant,” see § 3161(h)(1)(A).

       Under § 3162(a)(2), once the district court determines that seventy non-

excludable days have passed, the sanction is mandatory dismissal of the

indictment, and the only issue is whether the dismissal is with or without

prejudice. See Tsosie, 966 F.2d at 1358. To make this determination, the 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 a reprosecution on the

administration of [the Act] and on the administration of justice.’”       United States



                                             -6-
v. Jones , 213 F.3d 1253, 1256 (10th Cir. 2000) (quoting § 3162(a)(2)). The

district court must also consider any prejudice to the defendant.    Id. at 1256-57.

       The district court found, and the government does not dispute, that the

government violated the Speedy Trial Act in case No. CR-96-255 because

seventy-five non-excludable days passed between: (1) the day of defendant’s

arraignment and the date defendant’s counsel first moved for a competency

examination; and (2) the date the district court initially determined that defendant

was competent to stand trial and the date defendant’s counsel filed his unopposed

motion to have defendant recommitted. Applying the relevant factors, the district

court then determined that the indictment should be dismissed without prejudice

because: (1) the offense of threatening to assault and murder a federal official is

“obviously” serious; (2) the delay in bringing defendant to trial was not the result

of prosecutorial bad faith, but was instead the result of defendant’s “wavering

between competency and incompetency, by a thin margin on either side;”

(3) defendant suffered little, if any, prejudice as a result of the delay; and (4) a

dismissal with prejudice was not necessary to ensure future compliance with the

Speedy Trial Act.   See R., No. 00-2139, Vol. 1, Tab 71, at 4-5. We review the

district court’s decision to dismiss the indictment without prejudice for an abuse

of discretion. See Jones , 213 F.3d at 1256.




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       We agree with the district court’s analysis. As the district court found,

threatening to assault and kill a federal official is clearly a serious offense, and

the seriousness of the offense was compounded by the fact that two firearms were

found in defendant’s motor home at the time of his arrest. This case is also

unique in that defendant was repeatedly found to be incompetent to stand trial,

and he is not challenging the propriety of any of the actions taken by the district

court or his own counsel in having him committed for competency examinations

and extensive treatment. We hold, therefore, that the district court did not abuse

its discretion in refusing to dismiss the original indictment with prejudice.


                                 IV. Sixth Amendment

       Defendant also alleges that he was denied his Sixth Amendment right to a

speedy trial. “In determining whether a defendant has been deprived of his

constitutional right to a speedy trial under the Sixth Amendment, a court should

consider and balance the following factors: (1) the length of the delay; (2) the

reason for the delay; (3) the defendant’s assertion of his right to a speedy trial;

and (4) prejudice to the defendant.”   Hill , 197 F.3d at 443 (quotation omitted).

       Here, the lengthy delay in bringing defendant to trial was necessitated by

his incompetency; defendant’s defense in case No. CR-00-94 was not prejudiced

by the delay; and defendant did not assert his right to a speedy trial until

December 8, 1999--almost three-and-a-half years after he was taken into federal

                                          -8-
custody, see R., No. 00-2139, Vol. I, Tab 57, at 1. Accordingly, we hold that

defendant was not deprived of his Sixth Amendment right to a speedy trial.


                                    V. Conclusion

      The district court’s order of dismissal without prejudice in case No.

CR-96-255 and defendant’s conviction in case No. CR-00-94 are AFFIRMED.

Because defendant has not challenged the merits of the revocation of his

supervised release, the district court’s revocation of defendant’s supervised

release in case No. CR-00-94 is also AFFIRMED. We DISMISS appeal No.

00-2139 for lack of jurisdiction.


                                                    Entered for the Court


                                                    Monroe G. McKay
                                                    Circuit Judge




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