IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 5, 2009

                                       No. 08-40862                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellant
v.

CLIFTON J TRAHAN

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                            USDC No. 1:08-CR-88-ALL


Before REAVLEY, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       The Government appeals the district court’s dismissal pursuant to F ED. R.
C RIM. P. 48(b) of a superseding indictment on the grounds that it was returned
too close to the scheduled trial date. For the following reasons, we vacate the
judgment of dismissal and remand for further proceedings:




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                         No. 08-40862

1.    We disagree with the Government’s contention that the dismissal of the
superseding indictment1 in this case is reviewed de novo, as is true of dismissals
on constitutional grounds or legal conclusions under the Speedy Trial Act, 18
U.S.C. § 3162. See, e.g., United States v. Stephens, 

, 652 (5th Cir.
2007) (Speedy Trial Act); United States v. Asibor, 

, 1039 (5th Cir.
1997) (due process).          The district court instead invoked its discretionary
authority to dismiss an indictment based on an “unnecessary delay” in
“presenting a charge to a grand jury.” F ED. R. C RIM. P. 48(b); see also, e.g.,
United States v. Garcia, 

, 561 n.8 (5th Cir. 1993) (noting the district
court’s discretion to dismiss under Rule 48(b)); United States v. Novelli, 

, 803 (5th Cir. 1977).           Our review is therefore confined to an abuse of
discretion.
2.    The discretion embodied in Rule 48(b) to dismiss an unnecessarily delayed
indictment is constrained by long-standing authority holding that a superseding
indictment may be filed any time before trial on the merits. See United States
v. Millet, 

, 257–58 (5th Cir. 1977) (affirming denial of motion to
dismiss superseding indictment returned six days before trial). Even assuming
that a district court may disallow a superseding indictment that prejudices the
defendant, we find that Trahan made an inadequate showing of prejudice in this
case. Cf. United States v. Grossman, 

, 82–83 (2d Cir. 1988) (making
a similar assumption and rejecting the defendant’s claims of prejudice resulting
from a superseding indictment returned two business days before trial).
Although Trahan sought no continuance but contended that defending himself
against the new charge necessitated expert testimony regarding the narrow


       1
          The district court lacked jurisdiction after the notice of appeal was filed to modify its
order dismissing the superseding indictment in toto to a dismissal confined to the newly-added
count. See Griggs v. Provident Consumer Discount Co., 

, 58, 

, 402
(1982) (filing of notice of appeal divests the district court of control over the aspects of the case
involved in the appeal). We therefore review the dismissal order as originally entered.

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                                  No. 08-40862

issue of the amount of codeine consistent with possession, he did not assert that
the remaining twelve days before trial did not afford him sufficient opportunity
to procure such an expert or otherwise indicate how much time would be
required.   Trahan’s allegations of unfair surprise are also substantially
undermined by his own acknowledged awareness of the facts underlying the
newly-added count and the Government’s uncontroverted representation that it
had already provided Trahan the relevant evidence during discovery. To the
extent that the district court concluded otherwise, we hold those findings are
clearly erroneous in light of the record.
3.   The district court’s reliance on the Sixth Amendment speedy trial factors
in Barker v. Wingo, 

, 530, 

, 2192 (1972), as grounds
for dismissal under Rule 48(b) is also flawed. Those factors include the length
of delay, reason for delay, whether the defendant asserted his right to a speedy
trial, and whether the defendant suffered prejudice resulting from the delay. 

factor includes the period of post-arrest, pre-indictment delay. See
United States v. Edwards, 

, 888 (5th Cir. 1978). However, the filing
of the superseding indictment did not alter at all the total period that would
have elapsed until his scheduled trial date on the original indictment because
Trahan adamantly refused a continuance. Stated differently, the overall period
between Trahan’s arrest and trial would have been the same regardless of the
superseding indictment’s filing. The district court instead erroneously based its
calculation of the relevant delay on the granting of a hypothetical continuance
of 45 to 60 days sought by neither party. This error was compounded by the
court’s finding of prejudice to Trahan that we have rejected above. Although we
agree with the district court that the Government offered vague and
inconsistent—albeit not improper—explanations for the delay, and Trahan
timely objected to the delayed superseding indictment, on this record the Barker
factors neither compelled nor warranted dismissal.

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                                   No. 08-40862

4.    Finally, although dismissal pursuant to Rule 48(b) “is not confined to
constitutional violations,” it embodies the district court’s “inherent power to
dismiss for want of prosecution.” United States v. Litton Sys., Inc., 

,
272 n.8 (5th Cir. 1984); see also F ED. R. C RIM. P. 48(b) advisory committee’s note.
The Government’s conduct here does not reflect a want of prosecution. The mere
fact that some delay occurred before the superseding indictment was filed does
not support its dismissal when the case was proceeding forward to trial with
appropriate speed. Cf. United States v. Clay, 

, 137–38 (7th Cir.
1973) (reversing dismissal for an eight-month pre-indictment delay when the
case moved forward expeditiously after the indictment was returned).
      VACATED and REMANDED.




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