UNITED STATES of America, Plaintiff-Appellee, v. Larry Lamont MOSS, Defendant-Appellant, 217 F.3d 426

HOOD, D.J., delivered the opinion of the court. BATCHELDER, J. (p. 432), delivered a separate opinion concurring in both the opinion of the court and Judge Gilman’s separate concurrence. GILMAN, J. (pp. 433-36), delivered a separate opinion concurring in the judgment. OPINION HOOD, District Judge. Defendant Larry Moss appeals his jury conviction for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and his sentence of 262 months imprisonment, and five years supervised release.

Moss claims the district court committed error by: 1) dismissing his first indictment without prejudice for violation of the Speedy Trial Act; 2) not dismissing his second indictment for violation of the Speedy Trial Act and his Sixth Amendment right to a speedy trial; 3) denying his motion to suppress; and 4) enhancing his sentence for obstruction of justice. For the reasons that follow, we REVERSE the district court’s decision to dismiss the first indictment without prejudice and do not reach the remaining issues on appeal. I.

BACKGROUND On March 22, 1995, three narcotics officers from the Shelby County Sheriffs Department executed a search warrant at a residence located on 1068 National in Memphis, Tennessee, and brought along “Torque,” a narcotics detecting dog. As the officers entered the residence and began handcuffing the people inside, Larry Moss exited from a bedroom in the house. One of the officers handcuffed and patted down Moss and located a tenth of a gram of crack cocaine in his pocket. The officer noticed that Moss’ hands were wet.

In one of the bedrooms, the officers found a fish tank which contained water, rocks, and a live alligator. Torque, the narcotics detecting dog, indicated that narcotics were in the fish tank. While one officer restrained the alligator, another officer searched the inside of the tank. Beneath the rocks and submerged in water were several bags and a plastic container with crack cocaine inside. In all, the officers seized 79.5 grams of cocaine and two digital scales. Moss was arrested and made his initial appearance before a magistrate judge on March 23, 1995.

The court granted Moss two continuances to allow him to retain counsel. On March 28, 1995, a magistrate judge appointed counsel for Moss and set a probable cause/bail hearing for the next day. Moss appeared the next day with retained counsel. The court found probable cause, and Moss was detained pending .trial. On April 17, 1995, a federal grand jury-in the Western District of Tennessee indicted Moss on one count of possession of a controlled substance, 79.5 grams of cocaine base, with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

Moss was granted a number of continuances to allow him to retain counsel and was arraigned on May 16, 1995. Moss entered a plea of not guilty. Moss’ retained counsel moved to withdraw on June 22, 1995, and the motion was granted on June 23, 1995. Moss appeared before the district court on July 5, 1995, to inform the court of the status of his search for a new attorney and insisted that he would retain counsel. Moss was told to report back on July 7, 1995, but did not report until July 23, 1995. At that time, he informed the court that he had not yet retained counsel, but he still desired to do so.

The court instructed Moss to report back on August 14, 1995. On August 17, 1995, Moss reported that he had retained an attorney. The new attorney filed an appearance on August 25, 1995, and requested a number of continuances in order to prepare for trial. Prior to the date set for trial, the defense attorney made an oral motion to withdraw on October 27, 1995. The motion was granted, and the Federal Defender’s Office was appointed to represent Moss.

On November 8, 1995, Moss filed a motion to suppress the evidence seized by the Shelby County Sheriffs Department, claiming that the officers violated the “knock and announce” rule. The motion was referred to a magistrate judge, but the order of reference was rescinded when the case was transferred to a different district judge. An evidentiary hearing on the motion was set for January 30, 1996. The trial date was adjourned several times and eventually set for March 18, 1996. The court held the evidentiary hearing on the motion to suppress on January 30, 1996.

At its conclusion, Moss’ attorney requested that the court delay its ruling until after the transcripts of the hearing had been prepared and both parties had an opportunity to respond. The motion was taken under advisement, and the court set a briefing schedule. Moss was to file a brief by February 22, 1996, and the Government was to respond by March 1, 1996. Moss responded on February 29,1996; the Government did not respond. The trial was again adjourned several times while awaiting the court’s ruling on the motion to suppress. The district court never rendered a decision.

One year. later, on January 29, 1997, Moss brought a motion to dismiss the indictment with prejudice for violation of the Speedy Trial Act. On February 25, 1997, Moss filed a motion to set a hearing date on the motion to dismiss. The Government filed a response to the motion on March 4, 1997, conceding that the Speedy Trial Act had been violated as more than 70 non-excludable days had accumulated, but the Government insisted that the dismissal should be without prejudice. On April 2, 1997, the district court agreed with the Government and dismissed the indictment without prejudice.

On April 30, 1997, Moss was reindicted on the same single count of possession with intent to distribute 79.5 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). Moss made an initial appearance, counsel was appointed, and Moss was released on bond on June 2, 1997. On July 28, 1997, Moss filed a motion to dismiss the second indictment with prejudice for violation of the Speedy Trial Act, a motion to dismiss the second indictment for violation of thg Sixth Amendment right to a speedy trial, and a motion to suppress evidence for lack of probable cause and violation of the “knock and announce” rule.

The motions were referred to a magistrate judge who issued a report and recommendation denying all three motions. The district court, after overruling Moss’ objections, adopted the recommendation of the magistrate judge. The case was tried to a jury that found Moss guilty. At sentencing, the district judge imposed a two level enhancement to Moss’ base level offense for obstruction of justice because the court believed that Moss presented evidence at trial which contradicted evidence he presented pretrial. Moss was sentenced to 262 months imprisonment and 5 years supervised release.

The judgment was entered on July 20,1998, and Moss filed this timely appeal. On appeal, Moss challenges the district court’s determination that although the Speedy Trial Act had been violated, the dismissal of the first indictment should be without prejudice. Likewise, Moss claims that the district court should have dismissed his second indictment with prejudice for violating the Speedy Trial Act and the Speedy Trial Clause of the Sixth Amendment.

Moss also appeals the district court’s denial of his motion to suppress, claiming that the affidavit provided in support of the search warrant did not establish probable cause, and the two level sentence enhancement imposed for obstruction of justice. Because we conclude that the district court should have dismissed the original indictment with prejudice, we do not determine the remaining issues on appeal. II.

ANALYSIS Moss argues that the district court abused its discretion by determining that the dismissal of his original indictment should be without prejudice because the court did not carefully consider all of the factors set forth in Speedy Trial Act, 18 U.S.C. § 3162(a)(2). Moss claims that the dismissal should have been with prejudice because the Speedy Trial Act violation was caused by the district court’s own neglect, the delay was lengthy, and the defendant suffered because of his two years of incarceration.

The Speedy Trial Act enumerates three factors that trial courts must consider when deciding whether to dismiss an action with or without prejudice; 1) the seriousness of the offense; 2) the facts and circumstances that led to the dismissal; and 3) the impact of reprosecution on the administration of the Speedy Trial Act and on the administration of justice. 18 U.S.C. § 3162(a). In United States v.

Pierce, 17 F.3d 146 (6th Cir.1994), this circuit opined, “Because Congress has set forth specific factors to be considered, a district court that does not set forth written findings with regard to these factors has abused its discretion and will be reversed.” 17 F.3d at 148 (citing United States v. Taylor, 487 U.S. 326, 336, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988)). If those findings are set forth, however, the appellate court applies a “modified abuse of discretion standard.” United States v. Kottmyer, 961 F.2d 569, 572 (6th Cir.1992).

Under this modified standard, the district court’s factual findings will be reversed only if the findings are clearly erroneous. Taylor, 487 U.S. at 336, 108 S.Ct. 2413. Because the judgment is only arrived at by considering and applying statutory criteria, which constitutes applying the law to the facts, the reviewing court is required to undertake a more substantive scrutiny to ensure that the judgment is supported in terms of the factors identified in the statute. Id. at 337, 108 S.Ct. 2413.

Nevertheless, if the reviewing court finds that the district court properly considered the statutory factors, the district court’s “judgment of how opposing considerations balance should not lightly be disturbed.” Id. In deciding to dismiss the original indictment without prejudice, the district court in this case set forth a written order. The order provided that the charges against Moss, possession of 79.6 grams of cocaine base with intent to distribute, was “rightfully characterized as a serious offense.” Moss does not dispute that cocaine possession is a serious offense.

This circuit has categorically labeled drug offenses as serious. See Kottmyer, 961 F.2d at 572. Accordingly, the district court’s consideration of the first statutory factor favors a dismissal without prejudice. With respect to the facts and circumstances that led to the dismissal of the original indictment, the district court implied that Moss alone caused the delay. Instead of recognizing its own role in not issuing a ruling on Moss’ motion to suppress-which had been taken under advisement for approximately 10 months-the court simply quoted from the unpublished opinion, United States v.

Pierce, 1992 WL 71367, *3 (W.D.Mich.) aff'd, 17 F.3d 146 (6th Cir.1994): “Defendants who passively wait for the speedy trial clock to run have [a lesser right] to dismissal with prejudice than do defendants who unsuccessfully demand prompt attention.” Unlike the district court in Pierce which weighed its role in causing delay against the role of the defendant -in causing delay, the district court in this case failed to acknowledge that the reason for ten months of the delay was that the motion to suppress was under advisement.

Nor did the Court acknowledge that under the Speedy Trial Act, 18 U.S.C. § 3161(h)(l)(J), only thirty days are excludable from the speedy trial clock for a motion taken under advisement. Evidently, the court was aware that the motion was still under advisement, as the trial was adjourned a number of times for that reason. The court also failed to mention that the Government also had not alerted the court to the speedy trial clock.

Pierce is also distinguishable from this case because the Pierce court was waiting to receive information from the defendant, while in this case Moss was waiting to receive a substantive opinion from the court. No evidence suggests that Moss caused any delay from the time the motion was taken under advisement until the time he filed the motion to dismiss for violation of the Speedy Trial Act. Although Moss could have informed the court of the delay, a defendant has no duty to bring himself to trial and has no duty to bring any delay to the court’s attention. Kottmyer, 961 F.2d at 572. Cf. Barker v.

Wingo, 407 U.S. 514, 527, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (analyzing the Sixth Amendment right to a speedy trial). Without a proper evaluation of the roles each party and the court played in causing the delay, the district court could not adequately consider this statutory factor. As to the last statutory factor, the district court found that reprosecution would not hinder the administration of the Speedy Trial Act, nor the administration of justice because Moss had not shown that the delay would prejudice him at trial.

The court failed to address that the ten month delay in rendering its opinion on the motion to suppress was approaching the point of being presumptively prejudicial. Cf. United States v. Mundt, 29 F.3d 233, 235 (6th Cir.1994) (analyzing the Sixth Amendment right to a speedy trial (citing Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992))). The district court also neglected to address any non-trial prejudice suffered by Moss.

In Taylor, the Supreme Court, quoting Barker, held: 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: “[Ijnordinate delay between public charge and trial, ... wholly aside from possible prejudice to a defense on the merits, may ‘seriously interfere with the defendant’s liberty, whether he is free on bail or not, and ... may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’ ” Taylor, 487 U.S. at 340, 108 S.Ct. 2413 (quoting Barker, 407 U.S. at 537, 92 S.Ct. 2182).

In this case, the district court failed to consider the impact on Moss’ liberty. Moss had been incarcerated for two years, including the time he was awaiting the decision of the court on the motion to suppress, yet the court failed to mention his incarceration and its impact on his life circumstances. Nor did the district court adequately address the impact reprosecution would have on the administration of the Speedy Trial Act.

The purpose of the Speedy Trial Act is not only to protect a defendant’s constitutional right to a speedy trial, but also to serve the public interest in bringing prompt criminal proceedings. United States v. Saltzman, 984 F.2d 1087, 1090 (10th Cir.1993) (citing United States v. Noone, 913 F.2d 20, 28 (1st Cir.1990)). Whenever the “government — for whatever reasons — falls short of meeting the Act’s requirements, the administration of justice is adversely affected.” United States v. Ramirez, 973 F.2d 36, 39 (1st Cir.1992) (quoting United States v.

Hastings, 847 F.2d 920, 926 (1st Cir.1988) (finding that the legislative history of the Speedy Trial Act demonstrates its importance in advancing both the public and private interests in fair and expeditious trial of criminal cases)). While not all violations of the Speedy Trial Act warrant a dismissal with prejudice, the purposes of the Act would be thwarted if courts do not adjust their day-to-day procedures to comply with its requirements. See United States v. Clymer, 25 F.3d 824, 832 (9th Cir.1994).

On the record as a whole, we find the district court’s decision to dismiss the original indictment without prejudice clearly erroneous. Although the district court in this case issued a written opinion, it did not adequately address two of the three statutory factors set forth in the Speedy Trial Act. The decision of the district court is reversed and remanded for an order dismissing the action with prejudice. III. CONCLUSION For the foregoing reasons, we REVERSE the judgment of the district court. .

We note that Moss could not immediately appeal the dismissal without prejudice of the first indictment because we would have lacked jurisdiction at that time. A dismissal without prejudice is not a "final order" within the meaning of 28 U.S.C. § 1291 that can be immediately appealed. See Pan v. United States, 351 U.S. 513, 516-519, 76 S.Ct. 912, 100 L.Ed. 1377 (1956); United States v. Bratcher, 833 F.2d 69, 71 (6th Cir.1987). A criminal case does not become final until the defendant is sentenced. Pan, 351 U.S. at 518, 76 S.Ct. 912.

This circuit has held that a dismissal without prejudice for a speedy trial violation does not fall within any recognized exceptions to the finality requirement. See Bratcher, 833 F.2d at 72 (citing Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977))(double jeopardy); Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (reduction of bail prior to trial).

The exception to the final order requirement only applies to "collateral orders” which "relatef] to matters outside the stream of the main action and would not be subject to effective review as part of the final judgment in the action.” Pan, 351 U.S. at 519, 76 S.Ct. 912. A dismissal without prejudice based on a speedy trial violation is not a collateral order because it is a "step toward final disposition of the merits of the case [that] will ... be merged in [the] final judgment.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

Such a dismissal only becomes appealable after the defendant has been convicted and sentenced.