                                 ___________

                                 No. 95-2794
                                  ___________

United States of America,             *
                                      *
           Appellee,                  *
                                      *   Appeal from the United States
     v.                               *   District Court for the
                                      *   District of Minnesota.
Mark Robert Dezeler,                  *
                                      *
           Appellant.                 *

                                 ___________

                   Submitted:     December 12, 1995

                        Filed:   April 10, 1996
                                 ___________

Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.
                               ___________


BEAM, Circuit Judge.


     Mark Robert Dezeler (Dezeler) appeals the district court's order
denying his motion to dismiss his indictment.         Because Dezeler was not
brought to trial within seventy days of his arraignment, as calculated
under the Speedy Trial Act, we reverse and remand.


I.   BACKGROUND


     This case has reached us because apparently no one has taken the time
to do the mathematical calculation mandated by the Speedy Trial Act.
Police in St. Paul, Minnesota, were in pursuit of a robbery suspect when
an officer heard a gunshot.      Following the direction of the shot, the
police officer immediately walked up the driveway of Dezeler's residence.
The officer found Dezeler, who
was carrying a holster, and arrested him as he was entering his house.   The
police discovered a gun loaded with five rounds of ammunition and one spent
round.


      Dezeler was charged by a grand jury with one count of possession of
a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g).       He
made his initial appearance on August 12, 1994, and was arraigned on August
17, 1994, at which time he entered a plea of not guilty.        Dezeler made
several pretrial motions on August 31, 1994.    The magistrate judge held a
hearing on these motions on September 14, 1994, and took them under
advisement as of that date.      In an order signed October 24, 1994, the
magistrate judge resolved the pending issues.        On December 12, 1994,
Dezeler's attorney made a motion to withdraw as counsel and the government
made an oral motion for a sixty-day continuance.         The district court
granted both motions in an order signed on December 16, 1994.


      In January 1995, Dezeler, through his new attorney, made several
motions including a motion to dismiss the indictment for a violation of the
Speedy Trial Act.    On February 9, 1995, the district court denied Dezeler's
motion to dismiss.    On the same day, Dezeler entered a conditional plea of
guilty,   reserving his right to appeal the alleged Speedy Trial Act
violation.   The district court sentenced Dezeler to twenty-four months
incarceration and three years supervised release.    Dezeler now appeals the
district court's order denying his motion to dismiss the indictment for a
violation of the Speedy Trial Act.


II.   DISCUSSION


      Under the Speedy Trial Act (the Act), a federal criminal defendant
must be brought to trial within seventy days of the filing of the
indictment or of arraignment, whichever is later.    18 U.S.C. § 3161(c)(1);
see also United States v. Koory, 20 F.3d 844,




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846 (8th Cir. 1994).    The Act excludes time spent on certain proceedings
from the calculation.    18 U.S.C. § 3161(d) & (h).        In the present case,
even with all proper exclusions, seventy-one days had already elapsed on
December 11, 1994, and Dezeler had still not been brought to trial.


        Dezeler argues that because he was not brought to trial within
seventy days of his arraignment, his indictment must be dismissed.         Dezeler
contends that the district court miscalculated the seventy-day time period
under the Act.    The government concedes that the district court erred in
its determination of the number of excludable days under its speedy trial
analysis,   but   nevertheless   contends   that   no   speedy   trial   violation
occurred.    The government asserts that the defendant's attorney made his
motion to withdraw on what would have been day seventy-one but making the
motion rendered that an excludable day thereby holding the total number of
days at seventy.     The government's calculation fails, however, because
Dezeler's attorney made his motion to withdraw on day seventy-two, not day
seventy-one.


        Our analysis of the number of days that elapsed under the Act
requires a rather detailed recitation of the procedural history of this
case.    Dezeler was arraigned on August 17, 1994.       Thus, the speedy trial
calculation begins the next day on August 18, 1994.       United States v. Long,
900 F.2d 1270, 1274 (8th Cir. 1990) (citation omitted).            Dezeler filed
several motions on August 31, 1994.     The magistrate judge held a hearing
on those motions on September 14, 1994.       Under the Act, "delay resulting
from any pretrial motion, from the filing of the motion through the
conclusion of the hearing on, or other prompt disposition of, such motion"
is excluded from the calculation.      18 U.S.C. § 3161(h)(1)(F); see also
Henderson v. United States, 476 U.S. 321, 326-31 (1986).          Thus, the time
from August 31 through September 14 is excluded from the calculation.
Accordingly, thirteen days had elapsed from August 18 through September 14.




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        In addition to conducting a hearing on the motions on September 14,
1994, the magistrate judge took those motions under advisement on that
date.       Although the speedy trial calculation recommenced on September 15,
"any period, not to exceed thirty days, during which any proceeding
concerning the defendant is actually under advisement by the court" is
excluded from the calculation.        18 U.S.C. § 3161(h)(1)(J).   The magistrate
judge did not sign his order until October 24, 1994, which falls beyond the
statutorily imposed thirty-day maximum.         Therefore, the maximum excludable
period of thirty days ended on October 14, 1994.1


        During the period from October 15 through December 11, 1994, fifty-
eight days elapsed.         Neither the parties nor the district court's docket
sheet describe any event during this period that would trigger an exclusion
under the Act.2        See generally 18 U.S.C. § 3161(h).   Therefore, we conclude
that as of December 11, 1994, seventy-one days had elapsed--the sum of the
thirteen days in August that had elapsed and the fifty-eight days from
October 15 through December 11--and Dezeler had not yet been brought to
trial.3         Therefore, the fact that Dezeler's attorney filed a motion


            1
       As the government concedes, the district court erred in
excluding the entire period from August 31 to October 24.
        2
      Although the government states in its brief that Dezeler's
trial was continued from October 24, 1994, until November 28, 1994,
and that trial did not convene on November 28, the government fails
to articulate how these continuances came about. Brief of Appellee
at 1.
        3
      Dezeler did not waive his speedy trial challenge because he
made his motion to dismiss on January 30, 1995, and did not enter
his guilty plea until February 9, 1995.        Moreover, Dezeler
expressly reserved his right to appeal the denial of his speedy
trial challenge by entering a conditional guilty plea.

     The United States relies on United States v. Jones which we
believe to be inapposite for several reasons, including: (1) the
continuance from December 12 to February 9 was not caused by any
misconduct on the part of Dezeler; and (2) we do not count any of
the days during the continuance in our speedy trial calculation.
23 F.3d 1307, 1310 (8th Cir. 1994) (holding that the defendant
"should not be saved from a waiver that would have been effective
on [the date retrial was to commence], when the reason no retrial

                                          -4-
to withdraw on December 12, 1994, day seventy-two, has no effect on our
calculation.


     "When a violation of the time limits of the Act is shown to have
occurred, dismissal is mandatory on motion of the defendant."     Koory, 20
F.3d at 846 (citations omitted).   The Act itself, in relevant part, states:


     If a defendant is not brought to trial within the time limit
     required by section 3161(c) [70 days] as extended by section
     3161(h) [excludable time], the information or indictment shall
     be dismissed on motion of the defendant.


18 U.S.C. § 3162(a)(2).    Because Dezeler was not brought to trial within
the seventy-day period, as calculated under the Act, we must dismiss the
indictment.


     Although the Act mandates a dismissal of the indictment, the trial
court retains discretion as to whether the dismissal should be with or
without prejudice.   The section of the Act dealing with sanctions provides
guidance and, in relevant part, states:


     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.




took place on that date was because of his own misbehavior [causing
his attorney to withdraw by threatening him]").


                                    -5-
18 U.S.C. § 3162(a)(1).       Therefore, on remand the district court must
consider   these   factors   in   determining   whether   to   dismiss   Dezeler's
indictment with or without prejudice.


III. CONCLUSION


     For the reasons discussed above, we reverse the district court's
order denying Dezeler's motion to dismiss the indictment. We remand the
case to the district court for an order dismissing the indictment and for
a determination whether the indictment should be dismissed with or without
prejudice.



     A true copy.


             Attest:


                   CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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