United States of America v. Juan Petis M Clendon

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 5, 2019 Decided December 10, 2019
No. 16-3121
UNITED S TATES OF A MERICA,
APPELLEE
v.
J UAN P ETIS M C LENDON ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:99-cr-00011-1)
Howard B. Katzoff, appointed by the court, argued the
cause and filed the briefs for appellant.
Daniel Honold, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, and
James Sweeney, Assistant U.S. Attorneys.
Before: HENDERSON and KATSAS , Circuit Judges, and
S ENTELLE, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge
S ENTELLE.
S ENTELLE, Senior Circuit Judge: Appellant, Juan
McLendon, moved the district court to vacate his conviction,
alleging violations of his Sixth Amendment right to effective
assistance of counsel. He argued that his trial and appellate
counsel failed to properly argue or advance a claim that his
Speedy Trial Act (“STA”) rights were violated. The district
court denied McLendon’s motion. It held that he could not
show Strickland prejudice resulting from counsels’ alleged
failures because, even if there was a violation of the STA, the
trial court would have dismissed the case without prejudice,
allowing the government to reindict and reprosecute
McLendon on the same charges.
For the reasons stated below, we affirm the district court’s
denial of the motion.
I. B ACKGROUND
A. Speedy Trial Act
The STA was designed to give effect to a criminal
defendant’s right to a speedy trial under the Sixth Amendment.
United States v. Rojas-Contreras, 474 U.S. 231, 238 (1985)
(Blackmun, J., concurring) (citing H.R. R EP . NO. 96-390, at 3
(1979)). Under the Act, “if a defendant is not brought to trial
within seventy days of indictment, the court ‘shall’ dismiss the
indictment ‘on motion of the defendant.’” United States v.
Miller, 799 F.3d 1097, 1104 (D.C. Cir. 2015) (quoting 18
U.S.C. § 3162(a)(2)). The Act specifies certain periods of
pretrial delay that are excluded from computation of the
seventy days. 18 U.S.C. § 3161(h). If the Act is violated, the
court must dismiss the case but has discretion to dismiss with

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or without prejudice. Id. § 3162(a)(2). The statute lists three
nonexclusive factors to guide the court’s exercise of that
discretion: (1) the seriousness of the crime, (2) the facts and
circumstances leading to the dismissal, and (3) the impact of
reprosecution on the administration of the Act and on the
administration of justice. Id. If the court dismisses without
prejudice, the government is free to seek a new indictment
against the defendant on the same or related charges. See
Miller, 799 F.3d at 1104.
B. Procedural History
The prosecution in the instant case began over twenty
years ago. On September 15, 1998, the federal government
filed an indictment against McLendon in Case No. 98-320. The
indictment charged McLendon with two counts of unlawful use
of a communication facility in violation of 21 U.S.C. § 843(b),
two counts of unlawful distribution of fifty grams or more of
cocaine base in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A)(iii), and two counts of unlawful distribution of
cocaine base within 1,000 feet of a school in violation of 21
U.S.C. § 860(a).
McLendon was arrested on September 17, 1998, when he
sold approximately sixty-two grams of cocaine base to an
undercover police officer. One week after the arrest, the
government filed a superseding indictment in the same case,
which included an additional count for each of the charges in
the original indictment, as well as charges for carrying a
firearm during a drug-trafficking offense in violation of 18
U.S.C. § 924(c)(1); carrying a pistol without a license in
violation of 22 U.S.C. § 3204(a); and assaulting, resisting, or
interfering with a police officer in violation of 22 U.S.C.
§ 505(a). On October 2, 1998, McLendon was arraigned on the
superseding indictment, and the trial court set a trial date for

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January 6, 1999, but it rescheduled the trial for January 13,
1999. In early January 1999, however, the trial court raised
concerns that the STA was violated and scheduled a status
hearing.
A review of the record reveals that the parties, and the
court, experienced scheduling difficulties throughout the
pendency of the trial. Between his arrest in late September
1998 and November 23, 1998, McLendon changed attorneys
three times. One of McLendon’s earlier attorneys requested an
extension to file pretrial motions, which was granted. Defense
counsel, however, never filed any pretrial motions, never
informed the court or the government that he did not intend to
do so, and never attempted to cancel the motions hearing. In
fact, it was this scheduled, but unnecessary, motions hearing
that sparked the trial court’s concerns about the STA.
At the STA status hearing on January 8, 1999, the trial
court noted that, in part because McLendon had changed
attorneys on three separate occasions, it would have been
impossible to try the case within the STA period. Defense
counsel himself repeatedly reinforced this conclusion by
accepting much of the blame for the delay due to his busy court
schedule and stating that he was not prepared to go to trial on
the scheduled date. The court also accepted some blame for
the delay and noted that “the case [had] slipped through the
cracks.” Appendix 77.
On January 7, 1999, one day before the status hearing, the
government filed a new indictment in Case No. 99-11, which
was identical to the indictment in Case No. 98-320. The
government explained that it procured the indictment in Case
No. 99-11 because it did not want the defendant released from
custody if the court found an STA violation. The government
maintained that it had “detrimentally relied on the fact that the

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defense was going to file motions” and repeatedly noted that it
was and had been prepared to proceed to trial on the scheduled
date. Appendix 68.
The trial court estimated that the speedy trial clock had run
several weeks earlier, around December 14, 1998.
Accordingly, the trial court concluded that the Act had been
violated and the indictment in Case No. 98-320 should be
dismissed, noting that it was inclined to dismiss the case
without prejudice. Additionally, the trial court stated that it
intended to proceed to trial on the identical indictment in Case
No. 99-11, but the court did not address whether the speedy
trial clock in Case No. 98-320 also applied to Case No. 99-11.
The court allowed both parties time to research and file written
motions on the issues, including whether to dismiss the
indictment in Case No. 98-320 with or without prejudice.
Despite the court’s conclusions on the STA violations,
defense counsel filed a motion to dismiss that allegedly
miscalculated the excludable delay and ultimately conceded
that the Act had not been violated. Counsel instead moved to
dismiss either of the pending indictments with prejudice on
double jeopardy grounds. The defense motion did not
reference the § 3162(a)(2) factors and cited no other authority
to support a dismissal with prejudice. Nor did defense counsel
explore whether the same speedy trial clock applied to both
Case No. 98-320 and Case No. 99-11.
In its own motion to dismiss Case No. 98-320 without
prejudice, the government discussed each of the § 3162(a)(2)
factors but did not consider whether the same speedy trial clock
applied to both indictments. Based on the arguments before it,
the trial court denied the defense motion, granted the
government’s motion to dismiss Case No. 98-320 without

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prejudice, and allowed the government to prosecute McLendon
in Case No. 99-11.
McLendon was tried three times. The first trial resulted in
a mistrial on the first eight counts, a dismissal of the ninth
count, and an acquittal on counts ten through twelve. The
government then filed a new fifteen-count superseding
indictment against McLendon on March 17, 1999. A second
jury trial was held on that indictment and resulted in another
mistrial, this time on all counts. A third jury trial was held
beginning on January 4, 2000. Finally, McLendon was found
guilty on all counts, except for one count on which he was
found guilty of a lesser-included offense. On February 22,
2002, McLendon was sentenced to 235 months in prison
followed by ten years of supervised release.
McLendon directly appealed his conviction, and this Court
affirmed. United States v. McLendon, 378 F.3d 1109 (D.C. Cir.
2004). He then filed a motion to vacate, set aside, or correct
his sentence, arguing that both trial and appellate counsel were
constitutionally ineffective. McLendon argued that the
identical indictment in Case No. 99-11 was a superseding
indictment. The speedy trial clock for the indictment in Case
No. 98-320 thus applied to the indictment in Case No. 99-11.
Accordingly, he asserted, Case No. 99-11 should have been
dismissed along with Case No. 98-320, and the prosecution in
Case No. 99-11 violated his speedy trial rights under the Act.
McLendon claimed that his trial counsel’s flawed speedy trial
advocacy was ineffective, and his appellate counsel’s failure to
argue that trial counsel was ineffective and failure to raise the
standalone STA violation in the first place were also
ineffective.
On November 29, 2016, the district court denied
McLendon’s motion because he had failed to show that the

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alleged failures of his trial and appellate counsel had prejudiced
his defense. McLendon filed a notice of appeal, and the district
court granted a certificate of appealability. The current appeal
ensued.
II. S TANDARD OF REVIEW
“As the court resolved in United States v. Abney, 812 F.3d
1079, 1086–87 (D.C. Cir. 2016), our review of the denial of a
§ 2255 motion on the ground of ineffective assistance of
counsel is de novo.” United States v. Aguiar, 894 F.3d 351,
355 (D.C. Cir. 2018). The familiar standard of Strickland v.
Washington, 466 U.S. 668 (1984), governs Sixth Amendment
ineffective assistance of counsel claims. The same standard
applies to claims of ineffective assistance of trial and appellate
counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). In order
to prevail, the defendant must show that counsel rendered
deficient performance that prejudiced his defense. Strickland,
466 U.S. at 687. The court does not have to consider deficient
performance and prejudice in order. Id. at 697. If the defendant
has failed to make a showing under either requirement, the
court need not analyze the other. Id.
III. DISCUSSION
We first address McLendon’s argument that failure to
obtain a dismissal without prejudice under these circumstances
constitutes Strickland prejudice, and we hold that it does not.
We then turn to his second claim that the district court erred in
finding that the trial court would have dismissed Case No. 99-
11 without prejudice in the first instance. Because that finding
was made in the context of an ineffective assistance of counsel
claim, however, we review the issue de novo and affirm the
district court’s decision.

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In reaching these conclusions, we assume without
deciding that the STA was violated, and that trial and appellate
counsel were deficient in failing to properly argue or advance
that violation. Because we affirm the district court’s decision
that successfully arguing the STA violation for Case No. 99-11
would have resulted in a dismissal without prejudice, as
discussed infra, all of McLendon’s ineffective assistance of
counsel claims hinge on whether the failure to obtain a
dismissal without prejudice constitutes Strickland prejudice.
We thus address each of his distinct ineffective assistance of
counsel claims together.
A. Strickland Prejudice
Counsel’s errors prejudice the defense if “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. at 694. McLendon contends that counsels’ failures to obtain
a dismissal without prejudice under the STA in Case No. 99-
11 constitutes Strickland prejudice because it would have
resulted in the dismissal of the indictment on which he was
convicted. He argues that, if that indictment were properly
dismissed pretrial, it is possible that a grand jury would have
refused to return a new indictment or, perhaps, would have
returned an indictment containing lesser charges.
Alternatively, if the STA violation were argued successfully on
appeal, he argues that the government might have been willing
to accept a plea agreement for a lesser sentence, or maybe a
new jury would have acquitted him of some or all of the
charges. Thus, he asserts, there is a reasonable probability that,
but for counsels’ deficient performance, the outcome of the
proceeding would have been different.
McLendon correctly notes that this Court has not yet
decided whether counsel’s failure to obtain a dismissal without

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prejudice constitutes Strickland prejudice. See Miller, 799
F.3d at 1105; United States v. Marshall, 669 F.3d 288, 295
(D.C. Cir. 2011). But several other circuits have held that it
does not. See, e.g., Sylvester v. United States, 868 F.3d 503,
511–12 (6th Cir. 2017); United States v. Rushin, 642 F.3d
1299, 1309–10 (10th Cir. 2011); Chambliss v. United States,
384 F. App’x 897, 899 (11th Cir. 2010) (unpublished); United
States v. Thomas, 305 F. App’x 960, 964 (4th Cir. 2009)
(unpublished); United States v. Fowers, 131 F. App’x 5, 6–7
(3d Cir. 2005) (unpublished). We find both the decisions of
our sister circuits and Strickland itself instructive.
In Rushin, for example, where the defendant could not
show that the government could not or would not have
reindicted and reprosecuted the defendant after a dismissal
without prejudice, the Tenth Circuit held that the defendant had
not demonstrated Strickland prejudice resulting from counsel’s
failure to raise a violation of the STA. Rushin, 642 F.3d at
1309–10; see also Sylvester, 868 F.3d at 511–13. The Rushin
court explained that, if the court dismissed the indictment
without prejudice, the government likely would have reindicted
the defendant, “placing him in the same posture as before the
dismissal.” Rushin, 642 F.3d at 1310. Although that might
have meant the ultimate result of the criminal prosecution
could have been different, the defendant “in no sense ha[d]
proven the substantial likelihood of a result different from that
he now face[d].” Id.
Moreover, in Strickland, the Supreme Court stated, “The
purpose of the Sixth Amendment guarantee of counsel is to
ensure that a defendant has the assistance necessary to justify
reliance on the outcome of the proceeding.” Strickland, 466
U.S. at 691–92. The test for Strickland prejudice is whether
the defendant can show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding

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would have been different.” Id. at 694. The Supreme Court
explained that “[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. And
“[w]hen a defendant challenges a conviction, the question is
whether there is a reasonable probability that, absent the errors,
the factfinder would have had a reasonable doubt respecting
guilt.” Id. at 695.
We hold that, under the circumstances of this case, failure
to obtain a dismissal without prejudice under the STA does not
constitute Strickland prejudice. We acknowledge that a
dismissal without prejudice forces the government to reindict
the defendant in order to secure a conviction. We acknowledge
that the government may not be willing to do so in every case,
and circumstances outside of the government’s control may
preclude it from doing so. McLendon’s argument does not
meet that standard. He fails to recognize that it would be the
exceedingly rare case in which a defendant could show a
reasonable probability that, absent counsel’s failure to obtain a
dismissal without prejudice, the outcome of the criminal
prosecution would be different.
Even if some case exists in which a defendant could show
such a reasonable probability, this is not such a case. The
government zealously prosecuted McLendon through three
trials and obtained new indictments when necessary. The only
reasonable probability, therefore, is that a pretrial dismissal
without prejudice would not have produced a different result.
Moreover, even if the STA violation were successfully argued
on appeal, there is no factual basis to believe that the
government would have refused to reindict or would have
offered a plea agreement instead. And although McLendon
points to the two mistrials as evidence that a different jury
might not have convicted, we cannot say that our confidence as
to the convicting jury’s verdict is undermined. We

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acknowledge that the government might have refused to
reindict, a grand jury might have returned a different
indictment, the government might have offered a plea
agreement, or a new jury might have been unable to reach a
verdict. Crucially, however, such hypotheticals are insufficient
to undermine our confidence in the outcome of the proceedings
or to give rise to any reasonable doubt respecting the
defendant’s guilt. Accordingly, the defendant has failed to
show Strickland prejudice.
B. Dismissal Without Prejudice
In the alternative, the defendant contends that the district
court abused its discretion in analyzing the § 3162(a)(2) factors
and deciding that a dismissal in Case No. 99-11 would have
been without prejudice. However, as stated supra, because the
district court analyzed the statutory factors in the context of an
ineffective assistance of counsel claim, we review its decision
de novo. Accordingly, we do not address whether the district
court abused its discretion, and we affirm the decision under
the stricter standard of de novo review.
As noted previously, the statute lists three factors to guide
the court in determining whether the dismissal should be with
or without prejudice: the seriousness of the crime, the facts and
circumstances leading to the dismissal, and the impact of
reprosecution on the administration of the Act and on the
administration of justice. 18 U.S.C. § 3162(a)(2). The court
may also consider factors other than the three listed, including
any prejudice to the defendant resulting from the speedy trial
violation. Id.; United States v. Taylor, 487 U.S. 326, 334
(1988) (“Although the discussion in the House is inconclusive
as to the weight to be given to the presence or absence of
prejudice to the defendant, there is little doubt that Congress
intended this factor to be relevant for a district court’s

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consideration.”); United States v. Bittle, 699 F.2d 1201, 1208
(D.C. Cir. 1983) (“Prejudice to the defendant is one of the
factors that the district court may consider.”).
It is important to highlight that the district court’s analysis
of these factors would not have changed regardless of whether
the claim had been successfully argued at trial or on direct
appeal. Under either scenario, the district court considers
whether the dismissal should be with or without prejudice,
assuming the STA violation were properly argued pretrial. See
United States v. Miller, No. 05-143, 2018 WL 6308786, at *10
(D.D.C. Dec. 3, 2018) (addressing on remand whether the
district judge would have dismissed the case with or without
prejudice had the STA violation been successfully raised
pretrial).
In his brief, McLendon concedes that the offenses were
serious. Thus, we only consider the facts and circumstances
leading to the dismissal, the impact of reprosecution on the
administration of the STA and on the administration of justice,
and any resulting prejudice to McLendon.
1. Facts and Circumstances
In Taylor, the Supreme Court noted that “bad faith,” a
“pattern of neglect,” or “something more than an isolated
unwitting violation” on the government’s part would support a
dismissal with prejudice. Taylor, 487 U.S. at 339; see also
United States v. Wright, 6 F.3d 811, 814 (D.C. Cir. 1993). The
Supreme Court also stated that the defendant’s “culpable
conduct and, in particular, his responsibility for the failure to
meet the timely trial schedule in the first instance are certainly
relevant . . . and weigh heavily in favor of permitting
reprosecution.” Taylor, 487 U.S. at 340.

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In Wright, this Court explained that the sanction for the
government’s failure to comply with the Act is the requirement
of dismissal itself. Wright, 6 F.3d at 814. Accordingly, the
court does not consider the speedy trial failure itself in deciding
whether to dismiss the case with or without prejudice. Id.
(“The decision of whether to dismiss with or without prejudice
already assumes the Government’s failure.”). Instead, “the
inquiry becomes why the Government failed.” Id. at 814–15
(emphasis in original) (finding that the facts and circumstances
weighed against a dismissal with prejudice where “the
Government failed for relatively unobjectionable reasons”).
McLendon argues that the delay was not attributable to the
defense, and he highlights that government bad faith or
intentional misconduct is not “a prerequisite to ordering a
dismissal with prejudice.” Appellant Br. at 36 (citing United
States v. Bert, 814 F.3d 70, 84 (2d Cir. 2016)). Additionally,
he asserts that “sheer neglect” of the speedy trial clock “is
sufficient to trigger a dismissal with prejudice.” Id. at 36
(citing Zedner v. United States, 547 U.S. 489, 499 (2006)).
Therefore, in McLendon’s view, the court’s and the
government’s “negligent administration of the speedy trial
clock” warrants a dismissal with prejudice. Id. at 37. We
disagree.
First, McLendon’s reliance on United States v. Bert is
inapposite. In that case, the Second Circuit did note, as
McLendon argues, that, even in the absence of bad faith or
misconduct on the government’s behalf, a dismissal with
prejudice might still be warranted if the STA was violated.
Bert, 814 F.3d at 80, 85 (remanding to the district court with
instructions to reconsider whether a dismissal with prejudice
might be warranted, even though the government exhibited no
bad faith or intentional misconduct). However, the Bert court

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emphasized the importance of a very lengthy delay or a finding
of a “truly neglectful attitude” to tip the facts and circumstances
factor in favor of a dismissal with prejudice under those
circumstances. See id. at 80 (quoting Taylor, 487 U.S. at 338).
Our holding in this case does not rely only on the absence
of government bad faith or intentional misconduct. Nor do we
ignore the court’s limited role in allowing the violation to
occur. However, we also note that the defendant bears a major
share of responsibility for the delay, and that the length of the
delay was not so serious as to tilt the scale in favor of a
dismissal with prejudice, as discussed below.
Second, we disagree with McLendon’s reading of Zedner
to support his assertion that sheer neglect of the trial clock,
without more, warrants a dismissal with prejudice. The portion
of the opinion that McLendon cites explicitly recognizes that
§ 3162(a)(2) “is designed to promote compliance with the Act
without needlessly subverting important criminal
prosecutions.” Zedner, 547 U.S. at 499 (emphasis added).
Zedner is accordingly better understood as explaining that both
a dismissal with prejudice and a dismissal without prejudice
encourage compliance with the Act, while emphasizing that a
dismissal with prejudice is a more “powerful incentive.” Id.
Zedner did not, however, undercut Taylor’s guidance that a
dismissal without prejudice is an appropriate remedy where the
facts do not “suggest[] something more than an isolated
unwitting violation” on the government’s part. Taylor, 487
U.S. at 339; see also id. at 342 (“Dismissal without prejudice
is not a toothless sanction.”).
In this case, the government repeatedly represented that it
was and had been prepared to proceed to trial. See United
States v. Ferguson, 565 F. Supp. 2d 32, 47 (D.D.C. 2008)
(dismissing the case without prejudice in part because “the

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Government repeatedly represented that it was ready to
proceed to trial”). McLendon does not direct us to anything in
the record that reflects a pattern of neglect or intentional
misconduct on behalf of the government. Instead, McLendon
relies on what he construes as “negligent administration of the
speedy trial clock” to support his argument that the facts and
circumstances leading to the dismissal support a dismissal with
prejudice. Appellant Br. at 37. We read the record, however,
to suggest that the government’s failure to comply with the Act
in this case was akin to an isolated unwitting violation, which
supports a dismissal without prejudice.
By contrast, the record reveals that the defendant’s
conduct was a major cause of the delay. At the status hearing,
defense counsel, the government, and the court all homed in on
this. For example, defense counsel stated his belief that the
delay was caused by defense counsel’s busy court schedule; the
government made clear that it had allowed the case to linger on
the docket because it had “essentially . . . detrimentally relied
on the fact that the defense was going to file motions”; and the
court noted that “it would have been an impossibility” to try the
case on time because McLendon “had so many attorneys.”
Appendix 62, 67–70, 77. Thus, focusing on the culpability of
the conduct that led to the dismissal, we conclude that the
second factor weighs in favor of a dismissal without prejudice.
Although the trial court acknowledged that the case
“slipped through the cracks,” Appendix 77, the length of the
delay was relatively short. Accepting McLendon’s
calculations for the sake of argument, the speedy trial clock
expired on either December 19, 1998, or December 25, 1998.
Calculating the period between the speedy trial clock’s
expiration and the scheduled trial date, the length of the delay
was around twenty-five or nineteen days in total. Adding that
delay to the seventy days allowed under the STA, then a total

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of ninety-five or eighty-nine nonexcludable days passed before
the scheduled trial date.
In other cases, courts have found much longer periods of
delay to support a dismissal without prejudice. See United
States v. Robinson, 389 F.3d 582, 588–90 (6th Cir. 2004)
(holding that a dismissal without prejudice was appropriate
where 101 nonexcludable days had passed); United States v.
Jones, 213 F.3d 1253, 1258 (10th Cir. 2000) (holding that
regardless of whether the delay was 216 or 414 nonexcludable
days, a dismissal without prejudice was appropriate because
the explicit statutory factors weighed against a dismissal with
prejudice); Miller, 2018 WL 6308786, at *9–10 & n.4 (holding
that a dismissal would have been without prejudice where the
nonexcludable delay was around 171 days); Ferguson, 565 F.
Supp. 2d at 45–49 (finding that 112 nonexcludable days
warranted a dismissal without prejudice). The length of the
delay in this case supports a dismissal without prejudice
because it is not a serious enough violation to tip the second
factor in favor of a dismissal with prejudice. Cf. United States
v. Stayton, 791 F.2d 17, 22 (2d Cir. 1986) (holding that “the
enormity” of a twenty-three-month delay was “sufficient alone
to tip this second factor in favor of dismissal of the indictment
with prejudice”).
2. Impact of Reprosecution
We have previously noted that the third factor “cannot be
viewed in isolation from the others.” Wright, 6 F.3d at 816.
Any adverse impact of reprosecution on the administration of
the Act or the administration of justice depends in large part on
the seriousness of the offense charged and the facts and
circumstances leading to dismissal. Id. For example, if the
government’s misconduct caused the delay, a dismissal
without prejudice is more likely to adversely affect the

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administration of justice and the administration of the Act
because it allows reprosecution despite government
misconduct. Id.
Additionally, because it is the government’s and the
court’s responsibility to ensure compliance with the Act, the
dismissal requirement itself assumes the speedy trial failure.
See id. at 814. Thus, failure to comply with the Act alone
cannot support an adverse impact finding. To that end, the
Supreme Court explained, “[d]ismissal without prejudice is not
a toothless sanction,” and lower courts should refrain from
relying on “the greater deterrent effect of barring
reprosecution” alone to support a dismissal with prejudice
because that would render the § 3162(a)(2) factors
“superfluous, and all violations would warrant barring
reprosecution.” Taylor, 487 U.S. at 342.
McLendon argues that allowing reprosecution in this case
would have had an adverse impact on the administration of the
Act and on the administration of justice. He argues that a
dismissal without prejudice would have effectively sanctioned
“the government’s subterfuge” of the Act, because it would
allow the government to obtain an identical indictment with the
admitted goal of preventing McLendon’s release from custody.
Appellant Br. at 38. This is the only evidence that McLendon
cites to support his argument that reprosecution would
adversely impact the administration of the Act or the
administration of justice. Although some courts consider the
absence or presence of prejudice to the defendant along with
this factor, we discuss it as a standalone factor in a separate
section below.
We reiterate that both the seriousness of the offense and
the facts and circumstances leading to the dismissal weigh in
favor of a dismissal without prejudice. Because we are

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ultimately unpersuaded by McLendon’s characterization of the
government’s indictment in Case No. 99-11 as a “subterfuge,”
we hold that the third factor weighs against a dismissal with
prejudice.
As noted above, the record illustrates the scheduling
difficulties among the parties, including the court, leading up
to trial. In response to the court’s STA concerns, and in its
haste to ensure that the defendant was not released from
custody, the government convened a grand jury and reindicted
McLendon before the status hearing. Under the particular
circumstances of this case, we do not construe the
government’s action as a “subterfuge” of the Act.
We hold that, under these circumstances, allowing
reprosecution would not adversely impact the administration of
the Act or the administration of justice. Accordingly, the third
factor weighs against a dismissal with prejudice.
3. Prejudice to Defendant
The presence or absence of prejudice to the defendant is a
relevant consideration under § 3162(a)(2). Taylor, 487 U.S. at
334; Wright, 6 F.3d at 816; Bittle, 669 F.2d at 1208. The
Supreme Court noted that the length of the delay is related to
any prejudice suffered by the defendant: “The longer the delay,
the greater the presumptive or actual prejudice to the defendant,
in terms of his ability to prepare for trial or the restrictions on
his liberty.” Taylor, 487 U.S. at 340. In Bert, the Second
Circuit noted that this includes two types of prejudice: trial
prejudice and non-trial prejudice. Bert, 814 F.3d at 82. Trial
prejudice is “prejudice in the defendant’s ability to mount a
defense at trial.” Id. Non-trial prejudice includes prejudice in
the defendant’s liberty interest and his own personal, social,

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and economic life. Taylor, 487 U.S. at 340; Bert, 814 F.3d at
82.
As to trial prejudice, McLendon alleged that the
“prolonged period of incarceration” disadvantaged his defense.
Appellant Br. at 38. But this raises nothing more than a
hypothetical impairment of McLendon’s ability to prepare for
trial. See, e.g., United States v. Koerber, 813 F.3d 1262, 1288
(10th Cir. 2016) (holding that defendant must show specific
trial prejudice); Robinson, 389 F.3d at 589 (holding that the
defendant “fail[ed] to allege any particularized prejudice to his
defense, such as loss of evidence”). Accordingly, McLendon
has failed to demonstrate trial prejudice.
As to non-trial prejudice, McLendon asserts that his liberty
interest was impaired because he remained in jail after the
speedy trial violation. However, as discussed above, courts
have found even longer periods of delay to support a dismissal
without prejudice despite any alleged prejudice to the
defendant’s liberty interest. See Robinson, 389 F.3d at 589
(holding that, even though 101 nonexcludable days had passed,
the dismissal was appropriately without prejudice because the
defendant did not “specifically state how this 31-day delay
affected his life circumstances, if at all”); Jones, 213 F.3d at
1258 (holding that, although the passing of 216 or 414
nonexcludable days “is very serious,” the seriousness of the
offense, the government’s lack of responsibility leading to the
dismissal, and the defendant’s inability to demonstrate trial
prejudice suggested that a dismissal without prejudice was
appropriate).
Similarly, we cannot seriously conclude that McLendon’s
liberty interest was impaired because he would have been
released from custody pending reindictment or because the
government might not have reindicted him. The facts in the

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record are that the government was able to obtain a new
indictment before the status hearing in a matter of less than one
week, and again pursued a new indictment after the first
mistrial. In all likelihood, the government would have quickly
pursued reindictment after a dismissal without prejudice, and
McLendon would have been at liberty for only a brief period.
Accordingly, we hold that the relatively minor impairment to
McLendon’s liberty interest did not tip the scale in favor of a
dismissal with prejudice under the circumstances.
Highlighting that each of the explicit statutory factors
weighs in favor of a dismissal without prejudice, we hold that
McLendon has not shown that he suffered any trial or non-trial
prejudice sufficient to tip the scale in favor of a dismissal with
prejudice.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s
denial of the motion for vacatur in full.

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