                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-2208
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                              ADOLPHUS NOEL MCNEIL,

                                           Adolphus McNeil,

                                                Appellant
                                       __________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. No. 3-09-cr-00320-001)
                         District Judge: Hon. James M. Munley
                                      __________

                       Submitted under Third Circuit LAR 34.1(a)
                                  February 15, 2011

           Before: SLOVITER, HARDIMAN and ALDISERT, Circuit Judges.

                                  (Filed March 3, 2011)

                                       __________

                               OPINION OF THE COURT
                                     __________

ALDISERT, Circuit Judge.

       Appellant Adolphus McNeil raises two issues for our review. He contends that (1)

the District Court erred in denying his Motion to Suppress, on the basis that it
erroneously determined he was not in custody, and (2) the District Court abused its

discretion by dismissing his original Indictment without prejudice, rather than with

prejudice. For the reasons that follow, we will affirm the District Court.1

       The parties are familiar with the facts and the proceedings in the District Court, so

we will not revisit them in detail here.

       Regarding the District Court’s denial of McNeil’s Motion to Suppress, the parties

agree that the only issue is whether McNeil was in custody when he made the statements

to Agent Langan. To determine whether an individual is in custody when he has not been

arrested, we inquire whether there is a “restraint on freedom of movement of the degree

associated with a formal arrest.” United States v. Leese, 176 F.3d 740, 743 (3d Cir. 1999)

(quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). We have identified the

following relevant factors: “(1) whether the officers told the suspect he was under arrest

or free to leave; (2) the location or physical surroundings of the interrogation; (3) the

length of the interrogation; (4) whether the officers used coercive tactics such as hostile

tones of voice, the display of weapons, or physical restraint of the suspect’s movement;

and (5) whether the suspect voluntarily submitted to questioning.” United States v.

Willaman, 437 F.3d 354, 359-360 (3d Cir. 2006).



1
 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291. “[W]e exercise plenary review with respect to the district
court’s determination as to whether the police conduct found to have occurred constitutes
custodial interrogation under all the circumstances of the case.” United States v.
Willaman, 437 F.3d 354, 359 (3d Cir. 2006) (citation omitted). We review a district
court’s decision to dismiss an indictment with or without prejudice for abuse of
discretion. United States v. Taylor, 487 U.S. 326, 335-337 (1988).

                                              2
       The District Court held that McNeil was not restrained to the degree of a formal

arrest. According to the Court:

       Though [McNeil] had been stopped by police, he had not been told he was in
       custody, had not been placed in handcuffs or told to sit inside a police cruiser. No
       officer had drawn his gun. The events occurred on a public way, shortly after
       [Trooper] Langman stopped defendant’s car. Moreover, defendant made his
       statement to Agent Langan as he stood on the street and Langan sat in his car.

App. 23. McNeil does not contest the District Court’s factual description of the events.

He instead seeks to convince us that he was restrained to the degree of a formal arrest

under the circumstances, including the fact that his daughter was put at some point in

Agent Langan’s car.2

       Given the factual circumstances surrounding McNeil’s questioning by Agent

Langan, we agree with the District Court that McNeil was not restrained to the degree of

a formal arrest. Our review of the record indicates that all five of the Willaman factors tilt

in favor of such a determination. We therefore hold that the District Court properly

denied McNeil’s Motion to Suppress.

       The second issue before us is whether the District Court exceeded its discretion in

dismissing McNeil’s original Indictment without prejudice, rather than with prejudice,

after the government failed to conduct a trial within the 70-day window of the Speedy

Trial Act. See 18 U.S.C. §§ 3161(c)(1), 3162(a)(2).




2
  To the extent the government contends that McNeil “waived” his ability to mention the
presence of his daughter, see Appellee’s Br. 30, we agree with McNeil that he preserved
the issue of whether or not he was in custody, and that he can reference specific record
evidence in support of that issue, see Appellant’s Reply Br. 4-5.

                                              3
       Once a defendant establishes a violation of the Speedy Trial Act, the district court

must dismiss the indictment. Id. § 3162(a)(2). To decide whether to dismiss with or

without prejudice, the 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 this chapter and on the administration of justice.” Id.; see also

United States v. Taylor, 487 U.S. 326, 336 (1988) (requiring the district court to

“carefully consider [the § 3162(a)(2)] factors as applied to the particular case and,

whatever its decision, clearly articulate their effect in order to permit meaningful

appellate review”).

       McNeil contends that the District Court failed to meaningfully consider the

§ 3162(a)(2) factors. Had it done so, according to McNeil, it would have dismissed his

Indictment with prejudice. We disagree. The District Court identified the factors and

carefully analyzed them. Its analysis was sound, and we determine the Court acted within

its discretion in dismissing the Indictment without prejudice. See Taylor, 487 U.S. at 337

(“[W]hen the statutory factors are properly considered, and supporting factual findings

are not clearly in error, the district court’s judgment of how opposing considerations

balance should not lightly be disturbed.”).

       Accordingly, we hold that the District Court properly denied McNeil’s Motion to

Suppress and that it did not exceed its discretion in dismissing the original Indictment

without prejudice.

       We have considered all contentions presented by the parties and conclude that no

further discussion is necessary.


                                              4
The judgment of the District Court will be AFFIRMED.




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