United States of America v. Jeremiah Paul Stewart

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEREMIAH PAUL STEWART,
Defendant - Appellant.
No. 09-30385
D.C. No. 1:09-cr-00045-JDS-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Jack D. Shanstrom, District Judge, Presiding
Argued and Submitted July 13, 2010
Seattle, Washington
Before: REINHARDT, GRABER, and PAEZ, Circuit Judges.
Defendant-Appellant Jeremiah Paul Stewart appeals the district court’s order
denying his motion to dismiss the indictment with prejudice after finding a
violation of the Speedy Trial Act. Our review is for abuse of discretion. United
FILED
JUL 30 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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On appeal, the parties do not dispute the district court’s determination that1
a Speedy Trial Act violation occurred. The government unsuccessfully argued
before the district court that, because Stewart was joined with another co-defendant
in his second indictment, no Speedy Trial Act violation occurred. See 18 U.S.C. §
3161(c)(1). Because neither party raised the issue here, we deem it waived. See
United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (failure to raise issue in
opening brief generally results in waiver).
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States v. Taylor, 487 U.S. 326, 335 (1988). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
Stewart was indicted three times for robbery. The first indictment was
dismissed without prejudice at the government’s request under Federal Rule of
Criminal Procedure 48(a). Subsequently finding a violation of the Speedy Trial
Act, the district court dismissed the second indictment without prejudice over1
Stewart’s objection that it should be dismissed with prejudice. After the
government filed a third indictment, Stewart moved to dismiss the indictment with
prejudice as a result of the prior violation of the Speedy Trial Act. The district
court denied this motion, and Stewart pled guilty, preserving his right to appeal the
court’s decision to dismiss without prejudice.
Stewart contends that the district court erred in dismissing the second
indictment without prejudice. Having reviewed the district court’s application of
the factors outlined in the Speedy Trial Act, 18 U.S.C. § 3162(a)(2), we conclude

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that the district court did not abuse its discretion in granting the dismissal without
prejudice.
In deciding whether to dismiss a case with or without prejudice to remedy a
Speedy Trial Act violation, a court must consider three factors: “the seriousness of
the offense; the facts and circumstances of the case which led to the dismissal; and
the impact of reprosecution on the administration of this chapter and on the
administration of justice.” Id. Prejudice to a defendant is another factor that a
court may consider. United States v. Lewis, 518 F.3d 1171, 1176 (9th Cir. 2008).
Here, the district court correctly determined that (1) robbery was a serious crime,
(2) Stewart contributed to the delay by raising a last-minute, and ultimately
discredited, alibi defense, and (3) allowing reprosecution was not contrary to the
administration of justice or the Speedy Trial Act. As to prejudice, the court
properly determined that the delay did not impede Stewart’s ability to prepare a
defense or otherwise unfairly constrain his liberty. See Taylor, 487 U.S. at 340.
Accordingly, Stewart’s challenge to the district court’s dismissal without prejudice
fails.
AFFIRMED.

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