     04-4545-cr
     United States of America v. Oberoi

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 28 th day of May, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                AMALYA L. KEARSE,
 9                ROBERT A. KATZMANN,
10                              Circuit Judges,
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                         04-4545-cr(L),
17                                                                 04-4693-cr(CON)
18                                                                 06-0968-cr(CON)
19       TEJBIR S. OBEROI
20                Defendant -Appellant .
21       - - - - - - - - - - - - - - - - - - - -X
22
23       APPEARING FOR APPELLANT:               Michael F. Williams, Kirkland &
24                                              Ellis LLP, Washington, DC.
25
26       APPEARING FOR APPELLEE:                Stephen J. Baczynski, Assistant
27                                              United States Attorney, on
28                                              behalf of William J. Hochul,
29                                              Jr., United States Attorney,
30                                              Western District of New York,
31                                              Buffalo, NY.

                                                  1
1
2        Appeal from a judgment of the United States District

3    Court for the Western District of New York (Arcara, J.).        We

4    assume the parties’ familiarity with the underlying facts,

5    the procedural history, and the issues presented for review.

6        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

7    AND DECREED that the judgment of the district court be

8    REVERSED, and the case be REMANDED to the district court

9    with instructions to dismiss the indictment without

10   prejudice.

11       In light of the Supreme Court’s decision in Bloate v.

12   United States, 130 S. Ct. 1345, 1349 (2010), we reverse the

13   district court’s judgment of conviction entered against

14   Tejbir Oberoi.     “[T]he magistrates invoked the statutory

15   exclusion--for the period between filing and disposition of

16   a motion--to exclude the time spent preparing the motion for

17   filing.   Absent those exclusions, more than 70 days would

18   have elapsed on Oberoi’s speedy trial clock.”     United States

19   v. Oberoi, 547 F.3d 436, 448 (2d Cir. 2008) vacated and

20   remanded in light of Bloate v. United States, 130 S. Ct.

21   1345 (2010).     In Bloate, the Supreme Court ruled that such

22   exclusions were improper, as the time spent preparing

23   motions cannot be excluded automatically under 18 U.S.C. §

24   3161(h)(1), but rather may be excluded only if a court makes

                                     2
1    case-specific findings under 18 U.S.C. § 3161(h)(7).     See

2    Bloate, 130 S. Ct. at 1349.     No such findings were made

3    here, and so we reverse the judgment of conviction due to a

4    violation of the Speedy Trial Act.

5        Dismissal of an indictment pursuant to a violation of

6    the Speedy Trial Act may be done with or without prejudice.

7    See 18 U.S.C. § 3162(a)(1).     “While this evaluation would

8    normally be made by the district judge in the first

9    instance, a remand is not automatically required when the

10   issue arises for the first time on appeal, as it does in

11   this case.”    United States v. Simmons, 786 F.2d 479, 485 (2d

12   Cir. 1986) (internal citations omitted).

13       “In determining whether to dismiss the case with or

14   without prejudice, the court shall consider, among others,

15   each of the following factors: the seriousness of the

16   offense; the facts and circumstances of the case which led

17   to the dismissal; and the impact of a reprosecution on the

18   administration of this chapter and on the administration of

19   justice.”     18 U.S.C. § 3162(a)(1).   “[T]here is no

20   presumption in favor of dismissal with prejudice in this

21   circuit.”     Simmons, 786 F.2d at 485.

22       Oberoi’s crimes were serious, as evidenced by his

23   sentence of 63-months of imprisonment, three years of

24   supervised release, and a $224,679.98 restitution order.
                                     3
1    Cf. id. (a sentence of five years followed by three years of

2    special parole indicated a serious crime).

3        “Where the crime charged is serious, the sanction of

4    dismissal with prejudice should ordinarily be imposed only

5    for serious delay.”   Id.   The remaining considerations also

6    weigh towards dismissal without prejudice, as “this case did

7    not involve intentional non-compliance with the Act, nor was

8    it designed to gain a tactical advantage for the

9    government[,] . . . [and Oberoi] has not presented evidence

10   of prejudice.”   Id. at 485-86.    While we recognize that

11   Oberoi has served his term of imprisonment, the issue of his

12   payment of the restitution order would remain live following

13   remand.

14       Finding no merit in any of the remaining arguments for

15   dismissing with prejudice, we hereby REVERSE the judgment of

16   the district court and REMAND with instructions to dismiss

17   the indictment without prejudice.

18
19
20                                FOR THE COURT:
21                                CATHERINE O’HAGAN WOLFE, CLERK
22




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