The Honorable Robert M. Dow, Jr., of the United States 

District Court for the Northern District of Illinois, sitting by

designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-4045

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v.

VIRGIL SMITH,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 06 CR 53—William C. Lee, Judge.

ARGUED FEBRUARY 9, 2009—DECIDED AUGUST 11, 2009

Before POSNER and SYKES, Circuit Judges, and DOW,

District Judge.



DOW, District Judge. On December 9, 2002, Virgil Smith

and four other individuals took part in a bank robbery

in Fort Wayne, Indiana. Smith ultimately was convicted
2 No. 07-4045

on two counts: (i) armed bank robbery in violation of 18

U.S.C. §§ 2113(a), (d), and aiding and abetting that same

bank robbery in violation of 18 U.S.C. § 2; and (ii) using

a firearm during and in relation to a crime of violence in

violation of 18 U.S.C. § 924(c), and aiding and abetting

the use of a firearm during and in relation to a crime of

violence in violation of 18 U.S.C. § 2. Smith received a

sentence of 100 months’ imprisonment on the first count

and seven years on the second, to be served consecutively

for a total of 184 months’ imprisonment. Smith raises two

arguments on appeal. First, he contends that there was

insufficient evidence to support a conviction on the

second count of the indictment. Second, he asserts that the

district court should have dismissed his original indictment with prejudice under the Speedy Trial Act. Because

we are not convinced by either argument, we affirm.

I. Background

Virgil Smith, Melvin Woods, Jernard Freeman, DeMarcus

White, and Rasheen Childs were involved in the robbery

of a Bank One branch in Fort Wayne, Indiana. Smith

admitted that he aided in the robbery, thus conceding

guilt on Count One of the indictment. The factual matters

at issue in this appeal concern the predicate for the

finding of guilt on Count Two. In particular, we must

focus on the testimony regarding the role that Smith

played in the pre-crime preparations and whether he

provided the weapon that ultimately was carried into

the bank during the robbery.

The testimony against Smith provided by the other

participants in the robbery was not entirely consistent
No. 07-4045 3

in several respects. In regard to the origin of the plan,

Woods testified that Smith came to him with the idea

of robbing a bank two months before the robbery actually

took place; Freeman testified that he and Smith had

their first conversation regarding the robbery a couple of

weeks before it took place; White testified that he was not

brought into the plan until early December 2002. For his

part, Smith testified that he was in Los Angeles County

Jail until November 4 or 5, 2002 and did not arrive in

Fort Wayne until shortly before Thanksgiving. Smith

further testified that Freeman and White approached

him on November 30 or December 1, 2002 about robbing

a bank and they asked him for a gun.

A critical area of testimony concerned the origin of the

.45 caliber weapon that was used during the robbery.

According to all three government witnesses, not only

was it Smith’s idea to use a gun during the robbery, but

he volunteered to provide one. In fact, all three testified

that, prior to the robbery, they saw Smith with the .45

pistol that Childs carried into the bank during the robbery. Freeman also testified that he saw Smith with a

second gun, a .44 caliber Desert Eagle that remained in

the trunk of one of the getaway cars during the robbery.

Smith testified that he provided only the Desert Eagle

and that he knew that it did not work. One of the

defense witnesses, Ravonda Weatherspoon, testified that

Freeman took a .45 from the house at which she was

staying in March or April of 2002, although she did not

know the make or model. Another defense witness, Donya

Brown, testified that the night before the robbery she

kicked Freeman out of her house where the five robbers
4 No. 07-4045

According to Freeman’s testimony at Smith’s first trial, 1

Smith told Freeman to put the guns in the trunk of Freeman’s

car.

Freeman’s testimony is unique in regard to the acquisition of 2

the stolen blue car. Unlike the other witnesses, Freeman

testified they did not pick that car up until after the failed

attempt to rob a bank on the south side of town.

were meeting because he had a .45 and she had a “no guns

in the house” rule.

Another testimonial matter of significance was the

location of the .45 on the day of the robbery. Woods

testified that Smith and Freeman picked him up in Freeman’s car (the “dark Cutlass”), at which point Woods

claims he was informed that the guns were in the

trunk. Freeman, however, testified that he picked up

Woods before picking up Smith. Freeman also testified

that Smith put both the .45 and Desert Eagle in the trunk

of Freeman’s car. Woods stated that they proceeded to 1

White’s apartment, at which time Smith and Freeman

left in the dark Cutlass. Freeman recalled that Smith left

by himself and returned with his girlfriend’s car (the

“white Sunfire”) and Childs. According to Woods, when 2

Smith and Freeman returned, Childs was present and each

of the three men was driving a car: Freeman, the dark

Cutlass; Smith, the white Sunfire; and Childs, a stolen

blue car. White testified that the four men gathered at

his apartment, but Childs and Smith then left in the

white Sunfire and returned with the stolen blue car. At that

point, White said that he saw Smith with a .45 with
No. 07-4045 5

In the first trial, Woods mentioned a second bank that the 3

group almost robbed prior to the eventual robbery of the

Bank One branch on the north side of Ft. Wayne.

At the first trial, Woods said that Smith handed the gun to 4

Childs.

an extended magazine. Smith likewise testified that the

men met at White’s apartment the morning of the robbery.

He also recalled going to White’s apartment with Childs,

but in separate cars—Childs in the stolen blue car and

Smith in the white Sunfire. A defense witness, Devon

Hood, stated that Woods and Freeman picked him up

that morning and they smoked marijuana in Freeman’s

car where he observed a black pistol.

The group left White’s apartment with the intention of

robbing a bank on the south side of Ft. Wayne, but abandoned that plan when they observed that a police car

was present. Woods and White testified that they then

proceeded to the north side of the city where they met up

in a ball field near the bank. The testimony differs as

3

to who was present in which car while they looked for a

bank to rob. Yet, all of the witnesses agreed that before

they proceeded to the bank, they last stopped at the ball

field to finalize their plans. Woods stated that, once they

had gathered at the ball field, Smith informed the others

that he would wait outside the bank and watch for police

and told Childs to get the .45 from the trunk of the dark

Cutlass. White testified that Smith handed the .45 to 4

Childs in the Sunfire. Freeman testified that before they

entered the bank, Childs opened the trunk of the dark
6 No. 07-4045

Cutlass and procured the .45 handgun. Smith testified

that although he gave Freeman the Desert Eagle on the

morning of the robbery, he never put the Desert Eagle in

the trunk of the Cutlass and he never gave Freeman the .45.

According to Smith, Childs retrieved the .45 from the

Cutlass, and Smith did not know that Childs had used a

gun until after the robbery.

While the robbery took place, Freeman was in the

Cutlass and Smith was in the Sunfire, both outside of the

bank. Childs, White and Woods entered the bank. While

Childs stood by the door and brandished the .45 pistol,

White and Woods jumped over the counter and seized

the money. The three then left the scene in the stolen car.

The five individuals, in the three cars, proceeded back to

the ball fields where they had met up before the robbery

and ditched the stolen car. At that point, Childs and

Smith were in the car with the money and the .45 used in

the robbery. Woods, White and Freeman were in the dark

Cutlass. As the two cars were exiting the area, a police

officer pulled Freeman’s car over and all three were

arrested. Smith and Childs were able to leave the scene.

Although Smith later was arrested, Childs was never

apprehended and neither the .45 nor the money ever

was recovered. Woods, Freeman, and White pleaded

guilty and agreed to testify at Smith’s trial.

II. Procedural History

Smith was charged in 2003 for his role in the robbery. In

the original action, case number 03-CR-6, Smith filed a

motion seeking to plead guilty on July 22, 2003, which
No. 07-4045 7

was denied on November 17, 2003. He then filed a

motion to dismiss all charges against him, arguing that

his right to a speedy trial had been violated. The court

denied that motion on December 10, 2003, on the ground

that Smith had suffered no prejudice by the delay. The

matter proceeded to trial on December 17, 2003. Woods,

Freeman, White, Ravonda Weatherspoon, and Donya

Brown testified. Smith was convicted on the same two

counts that form the basis of the present appeal and

sentenced to a term of imprisonment of 221 months.

Smith filed his notice of appeal on March 24, 2004,

arguing that his rights under the Speedy Trial Act (“the

Act”) had been violated. This Court held that any violation of the Act was harmless. See United States v. Smith,

415 F.3d 682, 686 (7th Cir. 2005). A limited remand to

the district court followed, but this Court ultimately

affirmed Smith’s conviction. See United States v. Smith,

182 Fed. Appx. 586 (7th Cir. 2006). Smith then filed a

petition for writ of certiorari. The Supreme Court granted

Smith’s petition, vacated this Court’s judgment, and

remanded the matter for proceedings in light of Zedner v.

United States, 547 U.S. 489, 508-509 (2006), in which the

Court held that harmless error is not an appropriate

standard of review in the Speedy Trial Act context. This

Court then reversed Smith’s conviction, vacated his

sentence, and remanded the case to the district court with

instructions to determine whether the indictment should

be dismissed with or without prejudice pursuant to

18 U.S.C. § 3162(a)(2).

On remand, after reviewing the parties’ written submissions, the district court issued a five-page order dis-
8 No. 07-4045

missing the indictment without prejudice on October 3,

2006. The government filed a new criminal complaint

against Smith on the same day. He was indicted on

October 25, 2006, and proceeded to a bench trial that

commenced on September 27, 2007.

On October 3, 2007, the district court issued an oral

ruling. As the court noted, Smith conceded his guilt on

Count One. As to Count Two, the court noted two

viable theories of the case, each relating to one of the

guns at issue in the case. The court found Smith not

guilty under the “Desert Eagle” theory, essentially finding

that because the evidence showed that the “Desert Eagle”

gun was kept in the trunk of the car during the robbery,

it was not used in the offense and could not support a

conviction on Count Two. However, the court concluded

that the “other gun theory”—referring to the .45 that

was carried into the bank—did support a guilty determination on Count Two. The court acknowledged various

conflicts in the testimony and remarked that its decision

rested on a “credibility determination.” The court found

the three co-defendants’ testimony to be credible and

Smith’s testimony “not credible.” The court further

found beyond a reasonable doubt that Smith was a

leader and organizer and an aider and abettor as to the

crime of using the .45 caliber gun during the robbery. And

on the basis of the testimony and the court’s findings,

the court entered a finding of guilty on Count Two.

III. Analysis

Smith presents two arguments on appeal: (i) there was

insufficient credible evidence to support a guilty verdict
No. 07-4045 9

on Count Two and (ii) the district court should have

dismissed the original indictment with prejudice under

the Speedy Trial Act. We address each in turn.

A. Sufficiency of the Evidence

Smith first challenges the sufficiency of the evidence

adduced at trial in support of the trial court’s decision to

convict him on Count Two. According to Smith, the

prosecution witnesses lacked credibility and the district

court improperly rejected testimony that supported an

alternative source of the gun that was used in the robbery.

As an initial matter, we note that Smith faces a steep

uphill climb with a sufficiency of the evidence argument

on appeal. See, e.g., United States v. Hicks, 368 F.3d 801,

804 (7th Cir. 2004) (describing the standard of review

facing the defendants on sufficiency of the evidence

argument as “a daunting one”); United States v. Gardner,

238 F.3d 878, 879 (7th Cir. 2001) (“In attacking the sufficiency of the evidence, a defendant bears a heavy burden”). That heavy burden reflects the deference given to

the trier of fact: to obtain a reversal, the defendant must

convince the reviewing court that “after viewing the

evidence in the light most favorable to the prosecution,

[no] rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.”

United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This

Court’s task therefore is not to “weigh the evidence” or to

“second-guess” the trier of fact. Gardner, 238 F.3d at 879.

And we will overturn a conviction based on insufficient
10 No. 07-4045

evidence only if the record is “devoid of evidence” from

which the trier of fact—here, the trial judge—could have

found guilt beyond a reasonable doubt. Curtis, 324 F.3d at

505 (citing United States v. Menting, 166 F.3d 923, 928 (7th

Cir. 1999)).

Smith admits that he participated in the robbery and that

he provided the Desert Eagle gun that was left in the

trunk of the Cutlass during the robbery. The question is

whether there was sufficient evidence that Smith aided

and abetted the use of the .45 that was brought into the

bank. As we previously have explained, 

A defendant may be liable for aiding and abetting the

use of a firearm in violation of § 924(c) if the government proves that the defendant knowingly and intentionally assisted the principal’s use or possession of a

firearm during the violent felony or drug trafficking

offense. The defendant must know, either before or

during the crime, that the principal will possess or

use a firearm, and then after acquiring knowledge

intentionally facilitate the weapon’s possession or

use. Merely aiding the underlying crime and knowing

that a gun would be used or carried cannot support

a conviction under 18 U.S.C. § 924(c), because the

defendant must aid and abet the possession, or carrying, or use of the weapon.

United States v. Daniels, 370 F.3d 689, 691 (7th Cir. 2004)

(citations and quotations omitted). In finding Smith guilty

of aiding and abetting, the district court stated that its

disposition boiled down to credibility determinations.

As the district court saw it, Smith’s case turned on
No. 07-4045 11

whether to believe Smith or the three witnesses for the

prosecution who testified that it was Smith’s idea to

use the gun and that he procured it. And the court

sided with the prosecution witnesses, as was its prerogative after hearing the testimony and observing the witnesses.

Smith recognizes that the heavy burden that attends a

sufficiency of the evidence challenge is compounded

when such a challenge rests in large measure on taking

issue with the trier of fact’s credibility determinations.

As this Court has explained, we do not “second-guess the

trial judge’s credibility determinations.” United States v.

French, 291 F.3d 945, 951 (7th Cir. 2002). The reasons

for this deference are many: the trial judge “has had the

best opportunity to observe the verbal and nonverbal

behavior of the witnesses focusing on the subject’s reactions and responses to the interrogatories, their facial

expressions, attitudes, tone of voice, eye contact, posture

and body movements, as well as confused or nervous

speech patterns in contrast with merely looking at the

cold pages of an appellate record.” Id. In short, a

reviewing court will set aside credibility determinations

only if they are clearly erroneous, which occurs “only if

the district court has ‘chosen to credit exceedingly improbable testimony.’ ” United States v. Robinson, 314 F.3d 905,

907 (7th Cir. 2003); see also United States v. Briggs, 273 F.3d

737, 740 (7th Cir. 2001) (explaining that a district court’s

decision to credit one witness over another “can almost

never be clear error”). And testimony will be found

exceedingly improbable only if it is “internally inconsistent” or “implausible on its face.” See United States v.

Cardona-Rivera, 904 F.2d 1149, 1152 (7th Cir. 1990).
12 No. 07-4045

Smith submits that the district court overlooked numerous inconsistencies in the testimony of the prosecution

witnesses and improperly discounted Smith’s credibility

on irrelevant factors. We recognize, as did the district

court, that the testimony of the participants in the

robbery was not consistent in every respect. Smith

focuses on inconsistencies in the testimony concerning

the events that took place at the ball field before the

group proceeded to the bank—and, in particular, how the

gun got into Childs’ hands. Woods stated at the second

trial that Smith told Childs to get the .45 out of the trunk

of Freeman’s car, which he did. That testimony is fairly

consistent with Freeman’s testimony that Childs got the

gun from Freeman’s trunk. However, Woods was impeached with his testimony from the first trial, during

which he stated that Smith handed the gun to Childs.

In addition, White testified that Smith handed the gun

to Childs while Smith was sitting in the Sunfire.

While that testimony does present some factual discrepancies, it is neither internally inconsistent nor implausible. See United States v. Woods, 148 F.3d 843, 847 (7th Cir.

1998) (noting that eighteen months had passed since

the robbery and that it was to be expected that

witnesses would have slightly different recollections of

events as they unfolded). In addition, and more important, the testimony on which Smith focuses does not

go to the critical issue of who provided the gun or the

idea to use the gun. It was the prosecution’s contention—which the trial court accepted—that Smith provided the .45. It does not matter whether, as the final

preparations for the robbery unfolded, Childs was handed
No. 07-4045 13

Defense counsel’s impeachment of Freeman merely indicates 5

that Smith instructed Freeman to put the guns in the

trunk—testimony that also would support a guilty verdict for

aiding and abetting.

the gun or retrieved it from the trunk. As the trial court

saw the events, without Smith, the .45 would not have

been at the ball field at all, because all three prosecution

witnesses testified that they saw Smith with the .45 prior

to the robbery, Freeman testified that Smith in fact put

the .45 in the trunk of the Cutlass on the day of the robbery, and Woods testified that Smith instructed Childs to

retrieve the .45 from Freeman’s trunk. All of that testi- 5

mony, which the trial judge was free to credit, amply

supports the judge’s decision.

We also cannot find fault with the district court’s

finding that Smith lacked credibility. In reaching that

conclusion, the court noted (i) Smith’s demeanor in his

videotaped interrogation, (ii) his suggestion that the

group proceed to the Bank One after encountering a

police presence at another bank, and (iii) the fact that

Smith ended up with the money despite his efforts to

convince the court that he was a minor participant. We

respectfully disagree with Smith’s contention that the

latter two factors have no plausible connection to a

proper credibility determination. It appears from the

record that the district judge felt that that those factors

reflected poorly on Smith’s credibility because they

made less believable his explanation that although he

was in fact involved in the robbery, he was a minor

player, merely along for the ride.
14 No. 07-4045

Likewise, we see no error in the district court’s decision

not to credit Smith’s argument concerning an “alternate

source” of the .45. Weaving together the testimony of the

defense witnesses, Smith contends that there was

evidence that Freeman took the .45 from Weatherspoon’s

house and had it in his possession the night before the

robbery and again the morning of the robbery. The

district court commented on that evidence and noted

that the testimony did not “really go[ ] to the heart of

the—co-defendant’s testimony.” According to Smith, that

was not a rational basis for discounting the allegedly

exculpatory evidence. We disagree. There was no testimony as to the make or model of the .45 that Freeman

allegedly took eight months before the robbery, and

therefore there is no support for the position that the .45

that was in Freeman’s possession months earlier must

have been the same .45 that was taken into the bank. In

addition, Freeman denied that he ever stole the .45, which

the trial court could have accepted. In any event, even

assuming that the testimony to which Smith points pertained to the same gun, it merely shows that someone

other than Smith was holding it the day before and the

morning of the robbery. The trial court thus was correct

in observing that Smith’s alternative source theory

does not “go to the heart” of the case against Smith—

namely, the co-defendants’ testimony that it was Smith’s

idea to use the .45 and that he procured it for the robbery.

In sum, three witnesses identified Smith as the

individual who presented the idea to use the gun and then

provided the .45 that was used in the robbery. Smith’s

counsel cross-examined the witnesses and pointed out

some discrepancies in their testimony, though none was
No. 07-4045 15

fatal, either individually or collectively. The district court

also heard from and observed Smith. At the end of the

case, the court chose to credit the testimony of Woods,

Freeman, and White over the testimony of Smith, which

was the court’s prerogative. The decision to credit the

plausible testimony of one witness over the plausible

testimony of another “can almost never be clear error.”

United States v. Briggs, 273 F.3d 737, 740 (7th Cir. 2001). And

the facts of this case do not present one of the rare instances of clear error, for there was nothing “exceedingly

improbable” about the testimony of the prosecution

witnesses.

B. Speedy Trial Act

Smith also challenges the district court’s decision to

dismiss the first indictment without prejudice, instead of

with prejudice. As noted above, that issue came before

the district court after the Supreme Court vacated this

Court’s judgment on Smith’s original conviction. We

then vacated his sentence and remanded the case to the

district court. On remand, the district court took briefing

from the parties and issued a five-page written order

in which it concluded that the indictment should be

dismissed without prejudice pursuant to 18 U.S.C.

§ 3162(a)(2). We review that decision for abuse of discretion. See United States v. Taylor, 487 U.S. 326, 335 (1988);

United States v. Killingsworth, 507 F.3d 1087, 1090 (7th Cir.

2007).

Under the pertinent statutory and decisional law, the

district court was required to consider the following
16 No. 07-4045

factors in making its determination: (i) the seriousness

of the offense; (ii) the facts and circumstances which led

to the dismissal; and (iii) the impact of reprosecution on

the administration of the Speedy Trial Act and on the

administration of justice. See 18 U.S.C. § 3162(a)(2);

Taylor, 487 U.S. at 333. “[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.” Id.

at 336. Because the district court’s task involves

applying law to facts, this Court must “undertake more

substantive scrutiny to ensure that the judgment is supported in terms of the factors identified in the statute.” Id.

at 337. “Nevertheless, when the statutory factors are

properly considered, and supporting factual findings

are not clearly in error, the district court’s judgment of

how opposing considerations balance should not be

lightly disturbed.” Id.

Smith does not contend, nor could he in good faith,

that the district court failed to properly consider and

articulate its findings on the first two factors. Smith

concedes, as he did at the district court level, that armed

bank robbery is a serious offense. The district court concurred, noting that the seriousness of the crime was “selfevident.” The district court also agreed with Smith on

the second factor, finding that the violation of the Act was

not the result of bad faith on the part of the government.

The time allotted under the Act simply “ran out inadvertently.” The court noted that the defendant’s silence

underscored the unwitting nature of the delay and subsequent violation. For those reasons, the district court
No. 07-4045 17

concluded that “dismissal with prejudice would not

serve any purpose of encouraging the government to

avoid neglect or bad faith in the prosecution of its cases.”

Smith’s argument for reversal thus necessarily focuses

on the third factor. He maintains that the district court

failed to consider the impact of reprosecution on the

administration of the Speedy Trial Act and on the administration of justice. Smith’s argument is predicated on

a fairly novel theory—that when a Speedy Trial Act

violation is resolved in a defendant’s favor after a lengthy

appeals process, the district court’s analysis of the third

factor should encompass the time spent on appeal, not

just the length of the period triggering the underlying

violation.

In fact, the district court did consider both periods, but

it accorded less weight to the appellate delay than to the

initial delay in the trial court. It determined that although

the four year duration of the appeals process affected the

administration of justice—and thus could not be discounted altogether—that period was less significant in

the calculus (and thus entitled to less weight) than the

excessive delay that led to the Speedy Trial Act violation

in the first place. That bifurcated approach was premised

on the court’s belief that Section 3162(a)(2) is concerned

primarily with the seventy day period set forth in the

statutory text. We conclude that the district court’s

relative weighting was reasonable and do not detect in

the statute or case law any mandate to give equal or

more weight to appellate delays as compared to trial

delays. Indeed, although the Supreme Court did not
18 No. 07-4045

explicitly address the issue, the district court was on

solid ground in reading Taylor as at least implicitly supporting the view that the Section 3162(a)(2) analysis

should focus more on the delay giving rise to the violation in the trial court than on the length of time spent in

the appellate process. See Taylor, 487 U.S. at 336.

Using the framework described above, the district court

concluded that the impact of the Speedy Trial Act

violation of between six and thirty days was minimal and

that Smith had failed to establish that he had been prejudiced by that delay. Smith does not contest that finding.

The court then turned to the period of time spent in

appeals. Smith’s contention that the district court undervalued the impact of this delay—and in fact should have

found it to be presumptively prejudicial—relies principally

on Doggett v. United States, 505 U.S. 647 (1992). That case

involved an eight and a half year delay between indictment and arrest, which led to concerns about the fairness

of adjudication, including diminished memories and loss

of potentially exculpatory evidence. Id. at 654. But

Smith’s reliance on Doggett is misplaced for several reasons.

Most importantly, there had been no trial in Doggett

to memorialize testimony. By contrast, Smith had such

a trial. As a result, the district court observed that

[t]he evidence and the witnesses’ testimony has been

preserved by virtue of the earlier trial, so that there

is no reason to believe that a new trial would be

compromised. In any event, it is the government that

has the most to lose by the delay: “prosecutor bears

a heavy burden of persuasion, and the degradation
No. 07-4045 19

of evidence generally cuts against the party with

the burden.”

The concern expressed in Doggett that “excessive delay presumptively compromises the reliability of a trial in

ways that neither party can prove, or for that matter,

identify” (id. at 655) thus applies with far less force

when a defendant has a previous trial record with which

to work.

Smith nevertheless maintains that the impact of the

appellate delay was not slight and that it was used as an

excuse to present inconsistent evidence. That argument

fails to persuade because, as the district court noted, any

prior inconsistent testimony could be used for impeachment purposes in the second trial. That is precisely what

occurred. Defense counsel impeached the prosecution

witnesses whenever they strayed from their original

testimony.

Doggett also is factually distinguishable because the

delay in that case was nearly twice as long as the four

years that Smith’s case was on appeal. We accept

Smith’s point that a delay of four and a half years may be

prejudicial in certain situations. Under Taylor, these

matters can be considered only on a case-by-case basis.

But we are not persuaded that this case presents one of

those situations. Acknowledging that his delay was half

that endured by the defendant in Doggett, Smith cites a

case in which the court found that a ten month delay in

ruling on a motion to suppress constituted delay. See

United States v. Moss, 217 F.3d 426 (6th Cir. 2000). Notably,

and fatally to Plaintiff’s argument, Moss focused on the
20 No. 07-4045

effect of the delay triggering the underlying Speedy Trial

Act violation. The better comparison here is the time

period of between six and thirty days that gave rise to

the Speedy Trial Act violation, not the four years that

it took for the appellate process to run its course.

We have stated before that an “open-ended list” of the

sort drawn up by Congress in Section 3162 “imbues a court

with great discretion.” United States v. Fountain, 840

F.2d 509, 512 (7th Cir. 1988). In exercising that discretion,

the district court did not “ignore[ ] or slight[ ] a factor

that Congress has deemed pertinent.” Taylor, 487 U.S. at

337. To the contrary, the court carefully considered each

factor in light of the arguments of the parties and explained the rationale for its determination that the

factors weighed strongly in favor of dismissing the indictment without prejudice. Seeing no clearly erroneous

factual findings and no abuse of discretion in the

court’s final decision, we will affirm.

IV. Conclusion

Because we are not persuaded that the evidence presented at trial was insufficient to sustain Smith’s conviction on Count II or that the district court abused its discretion in dismissing the original indictment of Smith

without prejudice, the judgment of the district court is 

AFFIRMED.

8-11-09