                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 09-2571
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
     v.                                   * District Court for the
                                          * Southern District of Iowa.
Jesse Stewart,                            *
                                          *      [UNPUBLISHED]
             Appellant.                   *
                                     ___________

                              Submitted: January 13, 2010
                                 Filed: February 12, 2010
                                   ___________

Before MURPHY and BYE, Circuit Judges, and STROM,1 Senior District Judge.
                             ___________

PER CURIAM.

      Jesse Stewart appeals his conviction for possession with intent to distribute crack
cocaine, in violation of 21 U.S.C. § 841. Stewart primarily contends the district court2
abused its discretion when it dismissed without prejudice the indictment filed against
Stewart for a violation of the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq.


      1
       The Honorable Lyle E. Strom, Senior District Judge for the District of
Nebraska, sitting by designation.
      2
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
       The district court found eighty-one non-excludable days passed between
Stewart’s indictment and the date Stewart filed his motion to dismiss the indictment,
which required the district court to dismiss the indictment. 18 U.S.C. § 3161(c)(1), (h);
18 U.S.C. § 3162(a)(2). Although dismissal is mandatory when a Speedy Trial Act
violation occurs, courts have discretion regarding whether to dismiss an indictment
with or without prejudice. United States v. Koory, 20 F.3d 844, 846 (8th Cir. 1994).
We review this decision for an abuse of discretion. United States v. Taylor, 487 U.S.
326, 332 (1988). “An abuse of discretion occurs when a relevant factor that should
have been given significant weight is not considered, when an irrelevant or improper
factor is considered and given significant weight, or when all proper and no improper
factors are considered, but the court in weighing those factors commits a clear error of
judgment.” Koory, 20 F.3d at 847. In determining whether to dismiss with or without
prejudice, courts must consider: “[1] the seriousness of the offense; [2] the facts and
circumstances of the case which led to the dismissal; and [3] the impact of a
reprosecution on the administration of [the Speedy Trial Act] and on the administration
of justice.” § 3162(a)(2). Courts may also consider other factors, such as prejudice to
the defendant. Taylor, 487 U.S. at 334, 341.

       The District Court concluded, and Stewart does not dispute, that Stewart’s
indictment contained a serious offense. When a crime is serious, “courts should
dismiss with prejudice only for a correspondingly serious or prejudicial delay.” United
States v. Cardona-Rivera, 64 F.3d 361, 363-64 (8th Cir. 1995). Here, only eleven non-
excludable days had passed beyond the speedy trial deadline, which is not so serious
or prejudicial a delay to mandate dismissal with prejudice. See United States v.
Summage, 575 F.3d 864, 874 (8th Cir. 2009) (determining one-hundred-seventeen days
beyond the seventy-day limit did not require dismissal with prejudice).

      The district court also concluded the facts and circumstances leading to the
dismissal supported dismissal without prejudice. Stewart’s arguments to the contrary
are unavailing. First, nothing indicates the Government acted in bad faith or engaged

                                          -2-
in a pattern of neglect in prosecuting criminal defendants. See Taylor, 487 U.S. at 339.
In addition, nothing indicates the Government sought to gain a tactical advantage in
delaying the case. See United States v. Kramer, 827 F.2d 1174, 1177 (8th Cir. 1987).
A defendant’s conduct is also “certainly relevant as ‘circumstances of the case which
led to the dismissal.’” Taylor, 487 U.S. at 340 (quoting § 3162(a)(2)). The record
reflects Stewart sought continuances on at least three occasions. One of these
continuances involved the transportation of Stewart to Colorado for a mental
evaluation. That evaluation determined Stewart was a malingerer and resulted in the
accumulation of twenty-seven non-excludable days, which would not have
accumulated but for Stewart’s malingering. By all indications, the Government and
the district court were ready and willing to proceed with trial.

       The district court also correctly concluded Stewart’s reprosecution would not
have a negative impact on the administration of justice and the Speedy Trial Act. In
addition, Stewart has not identified any prejudice, nor did the district court discern any,
that would result because of the delay. See Taylor, 487 U.S. at 334. Any prejudice
Stewart incurred arose from his criminal prosecution and cannot be attributed to the
delay in his prosecution. See Summage, 575 F.3d at 875.

       The district court properly considered all of the relevant factors and gave them
an appropriate amount of weight in making its determination whether to dismiss the
indictment with or without prejudice. Moreover, the district court committed no clear
error in its factual findings in evaluating the relevant factors and did not abuse its
discretion when it dismissed the indictment without prejudice. The decision of the
district court is affirmed on this determination.

       Stewart has raised other issues on appeal, which the Court has considered and
finds are without merit. The judgment of the district court is AFFIRMED.
                        ______________________________



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