Third Circuit lacks jurisdiction to hear defendant's appeal that speedy trial motion should've been dismissed with prejudice.

United States v. Martin Kuper, No. 07-1916 (3d Cir. April 7, 2008)

Before the district court, the defendant filed a motion to dismiss his indictment, alleging a violation of the Speedy Trial Act. The district court granted the motion, but dismissed the indictment without prejudice. The defendant appealed, arguing the indictment should have been dismissed with prejudice. The Third Circuit dismissed the appeal, stating that it lacked jurisdiction.

The Court explained that the district court's ruling was not a "final order" for purposes of 28 U.S.C. § 1291. Citing the Supreme Court's decision in United States v. MacDonald, 435 U.S. 850 (1978), which held that a motion to dismiss for a Sixth Amendment speedy trial violation was not a final order, the Third Circuit held that a violation of the Speedy Trial Act likewise, did not "represent a final rejection of a defendant's claim." Instead, the Court recognized that the defendant would be able to "appeal the dismissal of his first indictment if he is re-indicted and convicted." The Court also noted that every court of appeals addressing the issue has held that an order dismissing an indictment without prejudice is not a final order under § 1291.

Additionally, the Court rejected the defendant's claim that re-indictment would cause a "personal hardship," concluding that "the discomfiture and cost of a prosecution for a crime even by an innocent person is one of the painful obligations of citizenship." (Funny, I don't remember that being mentioned in my 5th grade civics class!)