United States v. Lewis ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10692
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00217-MJJ
BEAU LEE LEWIS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Argued and Submitted
August 14, 2007—San Francisco, California
Filed March 13, 2008
Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins,
and Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw;
Dissent by Judge O’Scannlain
2415
2418 UNITED STATES v. LEWIS
COUNSEL
Dean D. Paik, San Francisco, California, for the defen-
dant-appellant.
Matthew J. McKeown, Assistant Attorney General, John
Smeltzer, Attorney, U.S. Department of Justice, Robert
Anderson, Attorney, U.S. Department of Justice and Todd
Aagaard, Attorney, U.S. Department of Justice, Washington,
D.C., for the plaintiff-appellee.
OPINION
WARDLAW, Circuit Judge:
Beau Lee Lewis appeals the district court’s decision to dis-
miss without prejudice his indictment for violation of the
Speedy Trial Act (“STA”), 18 U.S.C. § 3162(a)(2). On
Lewis’s prior appeal, we found that one discrete period of
pretrial delay had violated the STA, did not reach the other
asserted STA violations, and remanded for a determination of
whether the dismissal of the indictment should be with or
without prejudice. United States v. Lewis, 349 F.3d 1116,
1121 (9th Cir. 2003) (“Lewis I”). Lewis correctly contends
that the district court misconstrued the scope of our mandate
by considering only the one period of delay we found to vio-
late the STA before dismissing the indictment without preju-
dice.
The government re-indicted Lewis and the case proceeded
to trial for a second time. Lewis was again convicted. Lewis
appeals this second conviction based on various errors he
asserts the district court committed during his second trial.
We do not reach these various assertions of trial error
because, upon remand, the district court should consider the
effect of all of the improper periods of pretrial delay. Upon
UNITED STATES v. LEWIS 2419
thorough consideration and review, the district court may very
well determine that Lewis’s indictment should be dismissed
with prejudice, obviating the need for us to consider the
remaining contentions of error. We have jurisdiction to
review this appeal pursuant to 28 U.S.C. § 1291, and we
reverse and remand.
I. BACKGROUND
A. The Importation of Protected Reptiles
In 1994, the Fish and Wildlife Service constructed a faux-
wildlife importation and wholesale business called “PacRim”
as part of an elaborate sting aimed at trapping prominent
Malaysian commercial wildlife dealer, Keng Liang “Anson”
Wong. Spearheading the investigation for the government was
Special Agent George Morrison, operating under the alias
“George Ross.” To establish a rapport with Wong, Morrison,
through the PacRim shell, purchased several legal shipments
of reptiles for importation to the United States.
The government, however, had no need for the accumulat-
ing reptiles purchased from Wong and sought a purchaser for
the animals. To locate a buyer, PacRim took out an advertise-
ment in the appropriately named Reptiles magazine. Beau Lee
Lewis, an eighteen year old aspiring herpetologist, read the
announcement and contacted Morrison in late 1995 to obtain
a price list for the reptiles for sale.
Over the next three years, Morrison and Lewis spoke fre-
quently both over the phone and during Morrison’s visits to
the home of Lewis’s parents. Their relationship at first cen-
tered around the legal purchase and sale of reptiles. This
shifted, however, after Lewis questioned Morrison about
acquiring federally-protected gray’s monitor lizards. Gray’s
monitors, as well as the other reptiles involved here, are pro-
tected under the Convention on International Trade in Endan-
gered Species of Wild Fauna and Flora (“CITES”), 27 U.S.T.
2420 UNITED STATES v. LEWIS
1087, T.I.A.S. No. 8249, as well as the Endangered Species
Act, 16 U.S.C. §§ 1531-1544 and the Lacey Act, 16 U.S.C.
§§ 3771-3378. Nearly three months later, Lewis let Morrison
know he had been in contact with Wong and was importing
reptiles through Malaysia. What began as the government’s
effort to unload legal reptiles onto Lewis thus mutated into a
conspiracy to violate federal wildlife and importation law
involving Lewis, Morrison and Wong.
Lewis and Morrison set about devising plans whereby
Wong could directly send the protected reptiles to Lewis.
After consulting with other local reptile traders, who eventu-
ally were named co-conspirators in the scheme, the pair con-
cluded that transport through Federal Express (“FedEx”)
provided the most efficient route. From December of 1997
through August of 1998, Wong shipped six FedEx packages
to Lewis containing scores of protected wildlife.
The sting concluded in September of 1998 when Morrison
convinced a reluctant Wong to travel to Mexico City for a
meeting. Mexican officials arrested Wong upon his arrival
and incarcerated him pending extradition to the United States.
Lewis was indicted on July 8, 1998, and arraigned on Octo-
ber 1, 1998.
B. Delays Before the First Trial
Lewis’s first trial began on February 20, 2001 — two years,
four months, and nineteen days after his initial arraignment.
This total period of delay accumulated through a series of
smaller distinct periods of delay, nearly all of which occurred
over Lewis’s objection.
At Lewis’s October 1998 arraignment, his first counsel,
Peter Robinson, requested that the case be declared complex
and sought additional time for trial preparation. At the same
hearing, the government alerted the district court that “the
UNITED STATES v. LEWIS 2421
main defendant, Mr. Wong, has been apprehended in Mexico.
He is represented by a U.S. attorney. He may waive extradi-
tion, so we may have him back here in the not too distant
future.” The court granted the continuance on the basis of
complexity, a ground that is excluded from inclusion in the
seventy-day time-frame in which a defendant’s trial must
begin under the STA. See 18 U.S.C. § 3161(h)(8).
On February 11, 1999, Lewis notified the district court that
he was ready for trial, and requested his trial date to be set
within the seventy days mandated by the STA. 18 U.S.C.
§ 3161(c)(1). Wong, however, still had not been extradited
from Mexico. The government asked for an additional thirty
days to pursue that effort and the district court granted the
request over Lewis’s objection. The STA also excludes from
the seventy day time-frame a reasonable period of delay when
a defendant is joined for trial with a co-defendant. See 18
U.S.C. § 3161(h)(7).
A month later, on March 18, 1999, Lewis asked the court
to set April 19, 1999 as the trial date. Government counsel
objected to the date, stating to the court that he “can’t predict
how quickly [the officials handling Wong’s extradition] are
going to move. I can only indicate to the court that they have
been very quick in resolving the status of his extraditability to
this country.” The court set June 7, 1999 as the trial date, with
pre-trial motions to be heard on May 6, 1999.
On April 15, 1999, the government filed another motion for
continuance on the basis that Wong had still not been extra-
dited. Lewis objected and argued that the government had
shown repeated inaccuracy as to the speed with which Wong
could be extradited. To jump-start the trial, Lewis informed
the court that he would be willing to stipulate to essentially
all the complex factual and legal issues related to Wong so
that it would be unnecessary to try the two defendants
together.
2422 UNITED STATES v. LEWIS
At the same time, the government filed an additional
motion requesting permission to present Morrison’s testimony
non-sequentially. The STA excludes delay “resulting from
any pretrial motion.” 18 U.S.C. § 3161(h)(1)(F). This motion
would remain pending for twenty months.
During a May 6, 1999 hearing, the court granted the gov-
ernment’s motion for continuance, and re-scheduled the trial
for September 20, 1999. The court granted this motion on the
bases of complexity and Wong’s continuing absence.
The government filed a second superseding indictment on
June 14, 1999, joining two co-conspirators as defendants. The
addition of these co-defendants resulted in an additional delay
of the trial, and on August 11, 1999, the court granted a fur-
ther continuation on that basis. The court granted this continu-
ation over the objection of Lewis’s counsel, who informed the
court that he would be moving on August 1, 2000 to the Neth-
erlands to begin work with the International War Crimes Tri-
bunal. Further delay, he warned the court, might force him to
withdraw as counsel.
The court at this time also declined to hear an oral motion
by Lewis to sever his trial from his co-defendants, requesting
written motion papers instead. On December 27, 1999, Lewis
complied by filing a written motion to sever. The district
court rejected the motion and re-scheduled the trial for July 3,
2000.
That following May, one of the co-defendants submitted a
motion to continue the trial for sixty days. Lewis objected and
renewed his motion to sever, in part because of his counsel’s
impending move to Europe. On June 8, 2000, the court heard
the motions, denied Lewis’s motion to sever and granted the
continuance. Lewis’s counsel withdrew from the case. With-
out the years of background and preparation possessed by the
first counsel, Lewis’s new attorney requested additional time
UNITED STATES v. LEWIS 2423
to organize himself for trial. The new trial date was set for
January 22, 2001.
The government successfully extradited Wong on August
30, 2000. He subsequently pleaded guilty and agreed to coop-
erate with the government against Lewis.
Lewis moved to dismiss the indictments due to violations
of the STA. The court denied the motion, finding that only
twenty eight days between the arraignment and the motion
were not properly excludable under the statute. Of the two
years Lewis spent waiting for trial to that point, the court
found twenty months excludable under the statute due to the
government’s pending motion to allow Agent Morrison to tes-
tify non-sequentially.
C. The First Trial
The first trial began on February 20, 2001. Lewis was con-
victed on various counts and sentenced to a total of thirty-six
months incarceration and three years supervised release.
D. The First Appeal
Lewis appealed his conviction on multiple grounds, includ-
ing the district court’s denial of his motion to dismiss the
indictment for violation of the STA. Lewis argued that the
court improperly excluded periods of time from the STA cal-
culus. Among other periods, Lewis directed our attention to
a 117-day period between January 13 and May 9, 2000 when
the pendency of the government’s motion to allow Morrison
to testify non-sequentially purportedly lawfully delayed the
trial.
We found that the 117-day period alone was sufficient to
hold that Lewis’s rights under the STA had been violated.
Lewis I, 349 F.3d at 1121. We reasoned that the continuation
of the trial date delayed the resolution of the motion, rather
2424 UNITED STATES v. LEWIS
than the motion having delayed the commencement of the
trial. For that reason, exclusion under the STA was improper.
Id. (“[W]here it is clear that the delay in the trial caused the
delay in the hearing, rather than the other way around, and
where the defendant repeatedly asked the court to set the case
for trial and was otherwise ready to proceed to trial, the gov-
ernment’s pending (and relatively unimportant) pretrial
motion could not serve as a basis for exclusion . . . .”)
(emphasis in original).
We expressly did not consider any other period of excluded
time because the 117-day period was sufficient to find a viola-
tion of the STA. Id. at 1122 n.9 (“Lewis brings other Speedy
Trial Act challenges as well, which, because we reverse on
this § 3161(h)(1)(F) ground, we do not reach.”). We vacated
Lewis’s sentence, dismissed his indictment and remanded the
case to the district court to determine whether dismissal
should be with or without prejudice. Id. at 1121-22. Before
doing so, we noted that the “delay had substantial prejudicial
effect on the defendant, who was, as a result, deprived of his
right to be represented by counsel of his choice.” Id. at 1121
n.8.
E. The District Court Dismisses Without Prejudice
On April 29, 2004, upon remand, the district court consid-
ered whether the STA violations before Lewis’s first trial
required his indictment to be dismissed with or without preju-
dice. The STA enumerates factors for a court to consider in
making such a determination. 18 U.S.C. § 3162(a)(2). These
factors include “among others” the “seriousness of the
offense; the facts and circumstances of the case which led to
the dismissal; and the impact of a reprosecution on the admin-
istration of this chapter and on the administration of justice.”
Id.
After considering argument from counsel, the district court
weighed these factors. In assessing the degree of prejudice
UNITED STATES v. LEWIS 2425
suffered by Lewis, the court determined the period of delay
it should consider and concluded the amount of time to be
“117 days at the outside” corresponding to the period we
found sufficient to find a STA violation. Lewis’s counsel
requested the court to “make a finding, a specific finding as
to the other grounds that [he had] raised about excludable
delay” including other periods that this court had not reached
in our earlier decision. The court declined to do so, stating
that the “Ninth Circuit made its decision. That’s the record.
I’m not looking behind that.” The district court dismissed the
indictment without prejudice.
F. The Second Trial
With the indictment being dismissed without prejudice, the
government then sought to re-indict Lewis. On June 24, 2004,
a federal grand jury returned a second indictment against
Lewis. This indictment was superseded on October 21, 2004,
adding allegations related to sentencing.
After the case proceeded to a second trial, the jury found
Lewis guilty on six counts. The district court sentenced him
to twenty-three months in prison.
II. DISCUSSION
[1] An STA violation requires the dismissal of the indict-
ment upon the defendant’s motion. 18 U.S.C. § 3162(a)(2).
Whether to dismiss with or without prejudice is left to the
“guided discretion of the district court.” United States v. Tay-
lor, 487 U.S. 326, 334-35 (1988). The statute does not prefer
one remedy to the other. Id. The STA enumerates three fac-
tors, “among others,” that must be considered in deciding
whether to dismiss with or without prejudice: “seriousness of
the offense; the facts and circumstances of the case which led
to the dismissal; and the impact of a reprosecution on the
administration of this chapter and on the administration of
justice.” 18 U.S.C. § 3162(a)(2). The Supreme Court has held
2426 UNITED STATES v. LEWIS
that by use of the phrase “among others,” Congress intended
prejudice to the defendant to be a fourth factor weighed by the
district court. Taylor, 487 U.S. at 333-34. We have likewise
recognized that “the sheer length of the period involved” can
weigh toward a dismissal with prejudice. United States v.
Clymer, 25 F.3d 824, 831-32 (9th Cir. 1994).
[2] The district court erred by incorrectly reading Lewis I
as limiting its review to the discrete 117-day period that we
found sufficient to violate the STA. On Lewis’s first appeal,
we did not find it necessary to reach the other periods of delay
that Lewis argued were unexcludable under the STA. Lewis
I at 1122 n.9. Lewis, however, was entitled upon remand to
a full consideration of all periods of nonexcludable delay dur-
ing the district court’s prejudice determination. The district
court’s misconstruction of our mandate led to a failure to con-
sider all improperly excluded periods, which, in turn, pre-
vented it from accurately and carefully weighing the statutory
factors provided by Congress.1 See Taylor, 487 U.S. at 336
(“Where, as here, Congress has declared that a decision will
be governed by consideration of particular factors, a district
court must carefully consider those factors as applied to the
particular case and, whatever its decision, clearly articulate
their effect in order to permit meaningful appellate review.”).
Necessarily, if the district court finds other periods to be
unexcludable, the STA calculus will change. This could very
well tilt the balance toward dismissing the indictment with
prejudice. If the district court determines the other periods to
be excludable, it should make clear findings as to the statutory
1
Our respected colleague in his dissent needlessly erects a strawman
merely to knock it down. The dissenting opinion mischaracterizes our
holding to embrace a statutory construction requiring a “calculation of the
precise number of days by which the Act was violated.” To the contrary,
all we hold was that by its constrained reading of our prior holding in this
case, the district court failed to consider the prejudice flowing from other
periods of pre-trial delay, contrary to Supreme Court precedent. See Tay-
lor, 487 U.S. at 333-34 (“[T]here is little doubt that Congress intended
[prejudice] to be relevant for a district court’s consideration.”)
UNITED STATES v. LEWIS 2427
bases for their exclusion to enable us to conduct meaningful
appellate review.
III. CONCLUSION
We remand to the district court to review the entirety of the
pre-trial delay suffered by Lewis and to make specific find-
ings as to which periods are excludable under the STA. In our
view, these additional periods of delay may have exacerbated
the prejudice to Lewis, only one aspect of which — loss of
original trial counsel — we mentioned in Lewis I. Only after
making clear and specific findings as to excludability may the
district court then turn to weighing the statutory factors in
assessing whether to dismiss the second indictment with or
without prejudice. If the district court again dismisses the
indictment without prejudice, we will consider Lewis’s other
claims of error. We therefore retain jurisdiction over this
appeal.
REVERSED and REMANDED.
O’SCANNLAIN, Circuit Judge, dissenting:
After acknowledging that a Speedy Trial Act violation had
occurred, the trial judge quite properly dismissed the indict-
ment against Beau Lee Lewis without prejudice, weighing
each factor the Act requires. Today, the court holds that the
district court abused its discretion because it failed to calcu-
late the precise number of days by which the Act was violated
and that such failure “prevented it from accurately and care-
fully weighing the statutory factors provided by Congress.”
Maj. Op. at 2426. Because I do not believe that any such
requirement is imposed by the Act or by any of our prece-
dents I respectfully dissent.
2428 UNITED STATES v. LEWIS
I
The Speedy Trial Act requires that a defendant’s trial begin
within 70 days of his indictment, or the date of his first
appearance before a judicial officer, whichever is later. 18
U.S.C. § 3161(c). Other provisions of the Act, however, pro-
vide exceptions under which certain delays may be excluded
from this 70-day limit in appropriate circumstances. Id.
§ 3161(h). As the majority notes, in this case over two-and-a-
half years elapsed between Lewis’s indictment and the date of
his first trial, in which he was convicted. Lewis appealed, and
in United States v. Lewis, 349 F.3d 1116 (9th Cir. 2003) (per
curiam) (“Lewis I”), we reversed his convictions, holding that
the Speedy Trial Act had been violated because at least 117
days between Lewis’s indictment and his trial were not
excludable under the Act. We remanded to the district court
to determine whether to dismiss Lewis’s indictment with or
without prejudice. Id. at 1121-22.
In Lewis I, Lewis had argued that the district court erred in
finding that multiple portions of the delay between his indict-
ment and trial were excludable under the Act. We held that
the district court erred in finding at least one of these periods
excludable—the 117 days between January 13, 2000 and May
9, 2000, when the government’s pending motion to present a
witness’s testimony non-sequentially was the sole basis for
delay. Id. at 1120. As a consequence, we declined to reach the
question of whether any other periods were excludable
because such period alone was sufficient to establish a Speedy
Trial Act violation. Id. at 1122 n.9.
In this appeal, Lewis argues that on remand the district
court was required to reach the other period contentions to
determine whether to dismiss the indictment against him with
or without prejudice under the guidance the Act provides, see
18 U.S.C. § 3162(a)(2), and the majority agrees. Such a con-
clusion not only contravenes the statute’s plain text, I suggest
UNITED STATES v. LEWIS 2429
it transforms the statutory standard of review from abuse of
discretion to de novo.
II
When a Speedy Trial Act violation has occurred, the court
must determine whether to dismiss the indictment against the
defendant with or without prejudice by “consider[ing], among
others, each of the following factors: the seriousness of the
offense; the facts and circumstances of the case which led to
dismissal; and the impact of a reprosecution on the adminis-
tration of this chapter and on the administration of justice.” 18
U.S.C. § 3162(a)(2). I agree with the majority that the
Supreme Court has explained that Congress intended “the
presence or absence of prejudice to the defendant” to be a
fourth factor relevant to this determination. United States v.
Taylor, 487 U.S. 326, 334 (1988). But the Act gives “neither
remedy . . . priority,” id. at 335, and Congress has left the
decision to dismiss with or without prejudice “to the guided
discretion of the district court,” id. (emphasis added).
While § 3162(a)(2) provides a non-exclusive list of factors
the district court may consider, it contains no express require-
ment that the court calculate the precise number of days that
were or were not excludable under the Act before deciding
whether to dismiss with or without prejudice, nor do our pre-
cedents set forth any such rule. The majority attempts to
bridge this gap by noting that we have “recognized that ‘the
sheer length of the period involved’ can weigh toward a dis-
missal with prejudice.” Maj. Op. at 2426 (quoting United
States v. Clymer, 25 F.3d 824, 831-32 (9th Cir. 1994))
(emphasis added). This observation is, of course, unassailable.
A longer period of delay will weigh in favor of dismissal with
prejudice in many, if not all cases. Yet § 3162(a)(2) enumer-
ates other factors which a district court must consider, and our
prior cases do not portend the rule the majority announces
today, that a district court’s “failure to consider all improperly
2430 UNITED STATES v. LEWIS
excluded periods” is enough to constitute an abuse of discre-
tion in applying § 3162(a)(2). Maj. Op. at 2426.
Indeed, in Clymer we referred to the total number of days
(excludable and non-excludable) between the defendant’s
indictment and his trial in stating that the “sheer length” of
this total period “weigh[ed] heavily in favor of a dismissal
with prejudice.” 25 F.3d at 831-32. But we expressly declined
to make the distinction between excludable and non-
excludable days which the majority now determines is
required. Rather, after holding that the Speedy Trial Act had
been violated, we simply remanded to the district court with-
out unnecessary further calculations. 25 F.3d at 832 (“Even
giving the government the benefit of every doubt, about five
months of this period was not excludable under the Act. Were
we forced to decide how much of the delay is actually exclud-
able, we might conclude that the non-excludable delay is con-
siderably more than that.”) (emphasis added). Thus, our
decision in Clymer firmly supports the conclusion that
§ 3162(a)(2) does not require a calculation of the total number
of excludable and non-excludable days before a court may
decide whether to dismiss with or without prejudice. As such,
I believe the district court cannot abuse its discretion by fail-
ing to recite such calculations.
The majority notes that on remand, Lewis asked the district
court to make specific findings as to whether each period of
delay he challenged was excludable under the Act, Maj. Op.
at 2425, and labels the district court’s failure to do so a “mis-
construction of our mandate” in Lewis I, id. at 2426. But the
trial judge made precisely such findings before Lewis’s first
trial, deeming all such periods excludable. In Lewis I, we held
that the district court erred with respect to one 117-day
period, but we never implied that this error tainted its findings
with respect to the other periods. As such, I do not believe it
was necessary for the trial judge to reconstruct its prior work
on remand. Indeed, such an exercise would be redundant.
When Lewis requested that the district court reissue specific
UNITED STATES v. LEWIS 2431
findings on these other periods, the court acknowledged its
previous conclusions and declined to revisit them. I find noth-
ing in the Speedy Trial Act or our decision in Lewis I to pro-
hibit such a course of action.
Since § 3162(a)(2) does not require the calculation the
majority demands, the next question is whether the district
court abused its discretion in weighing the statutory factors.
III
A
Section 3162(a)(2) lists three factors, “among others,”
which a court must consider in deciding whether to dismiss an
indictment with or without prejudice, and the Supreme Court
has held that prejudice is a fourth. Taylor, 487 U.S. at 334. As
I view the record in this case, the district court considered
each of these factors at length. It first acknowledged that
Lewis was prejudiced as a result of the delay. Specifically, the
district court explained that Lewis lost the opportunity to be
represented by the counsel of his choice when his first attor-
ney withdrew to accept a position with the International War
Crimes Tribunal in the Netherlands after the 117-day non-
excludable delay had occurred. The district court appropri-
ately defined the right to one’s counsel of choice as a “hall-
mark of our system of justice” and reasoned that Lewis’s loss
weighed in favor of dismissal with prejudice.
And then it considered the other § 3162(a)(2) factors. As
such, the district court examined the severity of the offenses
with which Lewis was charged: one count of money launder-
ing in violation of 18 U.S.C. § 1956, two counts of conspiracy
in violation of 18 U.S.C. § 371, six counts of smuggling mer-
chandise into the United States in violation of 18 U.S.C.
§ 545, and nine counts of illegal importation and false label-
ing of wildlife in violation of 16 U.S.C. § 3372. Noting that
a conspiracy requires the assistance of multiple parties, that
2432 UNITED STATES v. LEWIS
the smuggling conduct with which Lewis was charged contra-
vened international treaties, and that a high number of animals
were involved in Lewis’s scheme, the district court deter-
mined that this combination of offenses was “serious” and
that their severity weighed in favor of dismissal without prej-
udice.
Finally, the district court considered the third factor: the
impact of a reprosecution on the administration of the Speedy
Trial Act and the administration of justice. In reasoning that
such factor weighed in favor of dismissal without prejudice,
the district court noted two important facts: First, Lewis was
not incarcerated during the time of pretrial delay and, second,
Lewis was charged with playing a central, rather than a
peripheral, role in the crimes alleged.
B
The district court balanced the prejudice Lewis suffered
against the consequences of reprosecution and the severity of
his offenses and concluded that a dismissal without prejudice
was the appropriate remedy. Based on the record before us, I
cannot conclude that the district court abused its discretion in
reaching such a decision. It considered each factor enumer-
ated in § 3162(a)(2) with care. The offenses with which Lewis
was charged, money laundering, conspiracy, smuggling, and
illegal importation and false labeling of wildlife, are indeed
serious offenses in their own right and are even more so when
combined. In addition, it reasonably concluded that the conse-
quences of reprosecution would not be severe. The district
court was guided by Clymer, where we determined that the
consequences of reprosecution weighed in favor of dismissal
with prejudice where the defendant was “incarcerated for the
entire pretrial period.” 25 F.3d at 832. Lewis, on the other
hand, has remained out of prison for the duration. The defen-
dant in Clymer as a “relatively minor figure” in the criminal
enterprise alleged in that case, id. at 826, whereas Lewis was
charged as a central player here. In such circumstances, I
UNITED STATES v. LEWIS 2433
believe the district court was well within its discretion to con-
clude that reprosecution would not conflict with the ends of
justice.
Of course, the district court acknowledged that Lewis suf-
fered prejudice from the loss of his counsel of choice and that
this factor weighed in favor of dismissal with prejudice. Yet
the majority seems to conclude that the district court’s failure
to quantify the precise number of days which were not
excludable under the Act caused it to undervalue the degree
of prejudice Lewis suffered. I simply cannot discern what rel-
evance this calculation would have had in the district court’s
analysis. The prejudice Lewis suffered was a direct result of
the 117-day delay. Whether or not other periods were also
non-excludable would neither have added to nor subtracted
from this harm. Without the 117-day delay, Lewis’s trial
would have begun before the date his counsel departed.
While the loss of his first attorney is not the only prejudice
Lewis alleges (the general burden of an indictment looming
over one’s head is not to be discounted), it is certainly his
greatest. Because the addition of other non-excludable periods
would not have added to this harm, I cannot conclude that the
district court abused its discretion in failing to perform addi-
tional calculations, nor can I conclude that it abused its discre-
tion in finding that the prejudice Lewis suffered was not so
great as to overwhelm the minimal consequences of repro-
secution and the severity of Lewis’s offenses.
Lewis was granted a continuance to allow his new counsel
to prepare for trial. He was charged as a central figure in the
commission of serious offenses, and was not incarcerated dur-
ing the pre-trial delay. The district court explained as much in
a reasoned decision, considering all factors required by
§ 3162(a)(2). In this area of the law, we do not engage in de
novo review; I cannot conclude that the bounds of discretion
were exceeded here.