United States v. Stephens , 511 F.3d 492 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 19, 2007
No. 07-30837 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
EDDIE STEPHENS
Defendant - Appellant
Appeal from the United States United States District Court
for the Middle District of Louisiana, Baton Rouge
Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:
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. United States v. Stephens, 489
F.3d 647 (5th Cir. 2007).
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 v. Eddie L. Stephens, No. 07-235, which is pending
in the United States District Court for the Middle District of Louisiana.
No. 07-30837
The government argues that Stephens’s appeal of the order dismissing his
indictment without prejudice should be dismissed because that order is not a
final, appealable order. Stephens responds that he filed this appeal out of an
abundance of caution because he has found no case presenting the issue in the
context of the present case, where the dismissal without prejudice by the district
court occurred on remand from appeal of a conviction and sentence. He concedes
that dismissal of this appeal is appropriate if he can preserve the issue in the
same manner as set forth in United States v. Jackson, 30 F.3d 572 (5th Cir.
1994).
In Jackson, the district court dismissed the original indictment without
prejudice under the Speedy Trial Act. Id. at 573. After the district court denied
Jackson’s motion to amend the judgment, he appealed that dismissal. Id. at 574.
This court “dismissed the appeal for lack of jurisdiction because appellate review
of a dismissal without prejudice must await final judgment after re-indictment.”
Id. Jackson was re-indicted, but did not move to dismiss the second indictment
on the grounds that the first indictment should have been dismissed with
prejudice. Id. He conditionally pleaded guilty to the charges in the second
indictment, preserving, however, rights of appeal. Id. On appeal, he argued
that the district court erred in dismissing the original indictment without
prejudice. Id. The court concluded that Jackson had waived his right to
dismissal of the second indictment by failing to move for dismissal prior to his
entry of a conditional guilty plea. Id. at 575. The court explained:
Jackson should have moved for dismissal of the [second]
indictment prior to his entry of the conditional guilty
plea to one count in that indictment. Had he done so,
he could have then argued, as he does now before us,
that the district court erred in dismissing the first
indictment without prejudice and that the district court
should correct that error by dismissing the second
indictment with prejudice.
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No. 07-30837
Id. Although Stephens’s case is in a different procedural posture from Jackson’s,
inasmuch as the dismissal of Stephens’s original indictment occurred on remand,
the order dismissing the original indictment without prejudice is nevertheless
a non-final, non-appealable order, and appellate review must await final
judgment after re-indictment, as in Jackson and the cases cited therein.
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.
For the foregoing reasons, the appeal is
DISMISSED.
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