How to Preserve Argument That Indictment Dismissed Because of Speedy Trial Act Violation Should Have Been Dismissed With Prejudice

United States v. Stephens, No. 07-30837 (5th Cir. Dec. 19, 2007) (per curiam) (Jolly, Prado, Southwick)

In United States v. Jackson, the Fifth Circuit held that a dismissal of an indictment without prejudice (due to a Speedy Trial Act violation) is not a final appealable order. Instead, "appellate review of a dismissal without prejudice must await final judgment after re-indictment." To preserve the issue, a defendant must move to dismiss the second indictment on the ground that the first one should have been dismissed with prejudice, and, if that's denied, either go to trial or enter a conditional guilty plea preserving the right to appeal that decision.

Stephens presents a slightly different procedural posture:

Eddie Stephens was convicted of armed bank robbery and firearm offenses in 2003. On appeal, this court found a violation of the Speedy Trial Act. The court reversed Stephens’s convictions, vacated his sentence, and remanded the case to the district court for a determination of whether dismissal of the indictment should be with or without prejudice.

On August 21, 2007, the district court dismissed the indictment without prejudice. Stephens appealed that ruling. Soon thereafter, he was indicted a second time, in United States.

The court held that Jackson still applies, even though the order of dismissal occurred after remand. It's still a non-final, non-appealable order in these circumstances. The court therefore dismisses this appeal, but notes that

Stephens may preserve the issue for appeal in the manner explained in Jackson, that is, he should move to dismiss the second indictment at the earliest practicable stage of those proceedings on the grounds that his first indictment should have been dismissed with prejudice under the Speedy Trial Act, and consequently he should not have been re-indicted.