IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) Case No. 03 CR 779

)

MICHEL THYFAULT, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge: 

Defendant Michel Thyfault has filed a motion (“Motion”) to dismiss the Second

Superseding Indictment due to a purported violation of the Speedy Trial Act (“Act”). For the

following reasons, the Court grants in part and denies in part Defendant’s Motion and dismisses

the Second Superseding Indictment without prejudice. 

LEGAL STANDARD

The Act provides, in part:

If the defendant is to be tried upon an indictment . . . dismissed by a trial court

and reinstated following an appeal, the trial shall commence within seventy days

from the date the action occasioning the trial becomes final, except that the court

retrying the case may extend the period for trial not to exceed one hundred and

eighty days from the date the action occasioning the trial becomes final if the

unavailability of witnesses or other factors resulting from the passage of time

shall make trial within seventy days impractical. The periods of delay

enumerated in section 3161(h) are excluded in computing the time limitations

specified in this section. The sanctions of section 3162 apply to this subsection. 

18 U.S.C. § 3161(d)(2). Under 18 U.S.C. § 3162(a)(2), the indictment “shall” be dismissed if a

defendant is not brought to trial within Section 3161’s time limits. Id. 

In determining whether to dismiss the case with or without prejudice, a court shall

consider, among others, each of the following factors: 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 administration of this chapter and on the

administration of justice.

Id.

FACTUAL BACKGROUND

On August 12, 2003, a grand jury returned an indictment against Defendant Thyfault and

others, charging Defendant with one count of conspiring to commit mail and wire fraud in

violation of 18 U.S.C. § 371 and four counts of committing mail fraud in violation of 18 U.S.C. §

1341. (R. 1, Indictment.) On November 4, 2004, a grand jury returned a superseding indictment

against Defendant and others, again charging Defendant Thyfault with one count of conspiring to

commit mail and wire fraud in violation of 18 U.S.C. § 371 and four counts of committing mail

fraud in violation of 18 U.S.C. § 1341. (R. 117, Superseding Indictment.) At the conclusion of a

six-week trial before Judge Moran, on September 15, 2005, a jury acquitted Defendant of the

conspiracy charge and failed to reach a unanimous verdict on the four mail-fraud counts. (R.

220, 9/15/05 Minute Order.) 

On February 27, 2007, Judge Moran dismissed without prejudice the four mail-fraud

counts based on a violation of the Act. (R. 307, 2/27/07 Minute Order; R. 308, 2/27/07 Order.) 

A grand jury then returned a Second Superseding Indictment on March 13, 2007, charging

Defendant Thyfault with four counts of mail fraud in violation of 18 U.S.C. § 1341 based on the

same underlying conduct that the first superseding indictment had alleged. (R. 309, Second

Superseding Indictment.) Judge Moran dismissed the Second Superseding Indictment on issue

preclusion grounds on June 27, 2007. (R. 338, 6/27/07 Minute Order; R. 339, 6/27/07 Mem. Op.

& Order; R. 340, 6/29/07 Minute Order.) 

2
After the government appealed, on August 26, 2009, the Seventh Circuit reversed the

judgment dismissing the mail-fraud counts. (R. 436, Opinion.) By that time, the district court

judge assigned to this case unfortunately had passed away. The Seventh Circuit issued the

mandate on September 17, 2009, but the Clerk’s Office did not immediately assign a new judge

to handle the case. (R. 437, Mandate.) According to the government, at some point between

December 9, 2009, and January 7, 2010, it inquired into the status of the case with the District

Court Clerk’s Office and was told that the case would be reassigned to a new judge. (R. 458,

Gov’t’s Resp. Br. at 5.) On January 7, 2010, one hundred twelve days after the Seventh Circuit

had issued the mandate and forty-two days beyond the Act’s seventy-day time constraint, the

case was reassigned to this Court. (R. 443.) Defense counsel asked for a short delay of the

initial appearance before this Court, and when the parties appeared for the January 21, 2010,

status hearing, the parties brought to the Court’s attention that there may have been a violation of

the Act. Defendant subsequently filed his Motion. 

ANALYSIS

Defendant Thyfault argues that the Court should dismiss with prejudice the Second

Superseding Indictment because the trial was not held within seventy days of the Seventh

Circuit’s issuance of the mandate. The government does not object to dismissal of the Second

Superseding Indictment, but it asks that the Court do so without prejudice. Because the

government does not oppose dismissal, the Court will only address whether to dismiss the

Second Superseding Indictment with or without prejudice.

The Act “comprehensively regulates the time within which a trial must begin.” Zedner v.

United States, 547 U.S. 489, 500, 126 S.Ct. 1976, 1985 (2006). Its purpose is “to preserve the

3
defendant’s right to a speedy trial, as guaranteed by Amendment VI of the Constitution, and ‘to

serve the public interest by, among other things, reducing defendants’ opportunity to commit

crimes while on pretrial release and preventing extended pretrial delay from impairing the

deterrent effect of punishment.’” United States v. Napadow, 596 F.3d 398, 402 (7th Cir. 2010)

(quoting Zedner, 547 U.S. at 501, 126 S.Ct. 1976, with emphasis in original); see also United

States v. Taylor, 487 U.S. 326, 340, 108 S.Ct. 2421 (1988) (noting that “‘inordinate delay

between public charge and trial, . . . wholly aside from possible prejudice to a defense on the

merits, may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and

. . . may disrupt his employment, drain his financial resources, curtail his associations, subject

him to public obloquy, and create anxiety in him, his family and his friends’” (quoting Barker v.

Wingo, 407 U.S. 514, 537, 92 S.Ct. 2182, 2195 (1972) (White, J., concurring))). 

To promote compliance with its requirements, the Act contains enforcement and

sanctions provisions. If a trial does not begin on time, the defendant may move,

before the start of trial or the entry of a guilty plea, to dismiss the charges, and if a

meritorious and timely motion to dismiss is filed, the district court must dismiss

the charges, though it may choose whether to dismiss with or without prejudice. 

Zedner, 547 U.S. at 499, 126 S.Ct. at 1984 (quoting 18 U.S.C. § 3162(a)(2)); see also United

States v. Killingsworth, 507 F.3d 1087, 1090 (7th Cir. 2007). In making the dismissal-with-orwithout-prejudice determination, courts must consider, among other things, “(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 [Act] and on the administration of justice.”1

 United

1

 Congress’s dismissal-with-or-without-prejudice formula

is designed to promote compliance with the Act without needlessly subverting

important criminal prosecutions. The more severe sanction (dismissal with

prejudice) is available for use where appropriate, and the knowledge that a

4
States v. Smith, 576 F.3d 681, 689 (7th Cir. 2009) (citing 18 U.S.C. § 3162(a)(2); Taylor, 487

U.S. at 333, 108 S.Ct. 2413). According to the Act’s legislative history – and consistent with its

plain language – courts should not prioritize either dismissal with prejudice or dismissal without

prejudice. Taylor, 487 U.S. at 335, 108 S.Ct. at 2418. In carefully assessing this case, all of the

Section 3162(a)(2) factors support dismissal without prejudice. 

I. Seriousness of the Offense

Defendant Thyfault argues that “this case involved a significant amount of money, but it

did not involve drugs, firearms, or violence of any sort,” and that the mail-fraud charges “are

limited by the jury’s acquittal of him on the conspiracy charge.” (R. 456, Def.’s Mot. at 12.) 

First, that the jury in the earlier trial was unable to reach a unanimous verdict does not diminish

the seriousness of the charges. Second, regardless of whether Defendant’s alleged crimes

involved drugs, firearms, or violence, they are nonetheless serious. As the Seventh Circuit

observed when a mail-fraud conviction carried a maximum sentence of five years, “[t]here can

be no doubt that mail fraud is a serious offense.” United States v. Coonce, 961 F.2d 1268, 1282

(7th Cir. 1992); see also United States v. Schmuck, 776 F.2d 1368, 1371 (7th Cir. 1985), vacated

on other grounds, 784 F.2d 846 (“Congress has deemed fraud that is perpetrated through the

mails to be an especially serious offense, punishable as a felony by as much as five years in jail

for each mailing.”). That statement is no less true now that the statutory-maximum sentence is

violation could potentially result in the imposition of this sanction gives the

prosecution a powerful incentive to be careful about compliance. The less severe

sanction (dismissal without prejudice) lets the court avoid unduly impairing the

enforcement of federal criminal laws-though even this sanction imposes some

costs on the prosecution and the court, which further encourages compliance.

Zedner, 547 U.S. at 499, 126 S.Ct. at 1984-85.

5
twenty years. 

Furthermore, the scheme in which Defendant allegedly engaged is not a run-of-the-mill

fraud scheme. The Second Superseding Indictment alleges, rather, that Defendant’s scheme

lasted over ten years and resulted in the loss of approximately $90 million, over $50 million of

which was stolen during Defendant’s involvement. As the government correctly notes, the

advisory 2009 Sentencing Guidelines allot twenty-four additional points to the guidelines

calculation for a defendant involved in a fraud scheme that causes losses in excess of $50

million. See U.S.S.G. § 2B1.1(b)(1). Accordingly, the seriousness of the offense weighs in

favor of dismissal without prejudice. 

II. Facts and Circumstances Leading to Dismissal

With regard to the second factor, Defendant argues that (1) he “contributed nothing to

[the] delay, unlike the situation in virtually every reported case wherein the dismissal is without

prejudice,” and (2) the delay was lengthy and serious. (R. 456, Def.’s Mot. at 12-13.) As to his

first argument, there are numerous cases in which the Seventh Circuit has found dismissal

without prejudice appropriate where the defendant did not contribute to the delay. See, e.g.,

Killingsworth, 507 F.3d at 1090 (violation caused by the failure to schedule an arraignment);

United States v. Janik, 723 F.2d 537, 546 (7th Cir. 1983) (remanding for consideration of

whether a violation caused by a “clerical oversight” should result in dismissal with or without

prejudice). Indeed, the Seventh Circuit has found that a “defendant who waits passively while

the time runs has less claim to dismissal with prejudice than does a defendant who demands, but

does not receive, prompt attention.” United States v. Fountain, 840 F.2d 509, 513 (7th Cir.

1988) (citing United States v. Regilio, 669 F.2d 1169, 1172 (7th Cir. 1981)). 

6
The remainder of Defendant’s facts-and-circumstances argument fares no better. Where

– as here – the charged crime is serious, “the sanction of dismissal with prejudice should only be

imposed for a correspondingly serious delay.” United States v. Hawthorne, 705 F.2d 258, 260

(7th Cir. 1983) (citing United States v. Carreon, 626 F.2d 528, 532 (7th Cir. 1980)). The

excessive delay in this case was forty-two days. The Seventh Circuit has found dismissal

without prejudice to be appropriate even when the delay was twice as long. See United States v.

Arango, 879 F.2d 1501, 1508 (7th Cir. 1989) (violation of, at most, three months). 

Additionally, the length of the delay “in some ways is closely related to the issue of the

prejudice to the defendant. The longer the delay, the greater the presumptive or actual prejudice

to the defendant, in terms of his ability to prepare for trial or the restrictions on his liberty.” 

Taylor, 487 U.S. at 340, 108 S.Ct. at 2421 (noting that the absence of prejudice weighs in favor

of dismissal without prejudice). Defendant has not argued, however, that the excessive delay has

impaired his ability to prepare for trial or restricted his liberty. While Defendant argues that the

mail-fraud charges stem from activities that occurred over fourteen years ago, he has not alleged

that during the forty-two day excessive delay any evidence became unavailable or that witnesses

had become unavailable. Even had he so alleged, however, such an argument would have less

force here because Defendant went to trial in 2005, and he has that trial record with which to

work. See Smith, 576 F.3d at 690-91. 

Similarly, Defendant argues that the criminal charges have had devastating consequences

on his life, including divorce, unemployment, and financial difficulties. He has not connected

those consequences, however, to the violation of the Act. In addition, Defendant is not detained

and has not had any bond conditions imposed on him during the forty-two-day time period. See

7
Killingsworth, 507 F.3d at 1091 (reversing the district court’s dismissal with prejudice due to a

violation of the Act, even where the defendant was detained during the violation period);

Carreon, 626 F.2d at 533 n.9; United States v. Johnson, 29 F.3d 940, 946 (5th Cir. 1994)

(finding that the facts and circumstances of the case – which included a violation of the Act by

118 days, during which time the defendant had been detained – pointed slightly in favor of

dismissal without prejudice). Ultimately, Defendant “has failed to demonstrate actual prejudice

from the delay; he has not demonstrated how the delay affected his ability to defend himself or

substantially impair[ed] any of his ‘intangible rights.’” Arango, 879 F.2d at 1508. 

Further, the violation of the Act here was inadvertent. See Taylor, 487 U.S. at 339, 108

S.Ct. at 2421 (noting the absence of bad faith or a pattern of neglect on the part of the

government); Fountain, 840 F.2d at 512; Carreon, 626 F.2d at 533 n.9. Dismissal with prejudice

would therefore not discourage the government from engaging in bad faith. See Arango, 879

F.2d at 1508. Just as in Killingsworth, “the absence of bad faith by the government and the lack

of prejudice to the defendant nudge this factor in favor of dismissal without prejudice.” 507 F.3d

at 1091. 

Defendant’s reliance on United States v. Ramirez, 973 F.2d 36 (1st Cir. 1992), does not

change this conclusion. In that non-binding case, the court dismissed an indictment with

prejudice because of a violation of the Act that occurred due to the “administrative oversight” of

taking pretrial motions under advisement for a prolonged period of time. Id. at 39. In doing so,

however, the court emphasized that such an oversight could happen in any case, thus requiring a

deterrent. Id. at 38-39. Here, there is minimal risk of repetition. First, there is little chance that

these unique facts – waiting for a case to be reassigned after appeal due to a judge’s passing –

8
will repeat themselves. Second, the Court has alerted the appropriate court personnel of this

situation in order to avoid such an oversight in the future. Dismissal without prejudice is

commensurate with the magnitude of the violation and the facts of the case. See United States v.

Loera, 565 F.3d 406, 411 (7th Cir. 2009). 

III. Impact of Reprosecution on the Administration of the Act and of Justice

Finally, Defendant argues that reprosecution would be an affront to the administration of

the Act and the administration of justice due to the age of the alleged crimes and because “[i]t is

hard to imagine that the purposes of the Act do not encompass this situation and require

dismissal with prejudice.” (R. 456, Def.’s Mot. at 14.) As explained above, however, Defendant

has not argued that the violation of the Act prejudiced his ability to prepare for trial, and he does

not address the Act’s purpose of protecting society’s interests. As the Seventh Circuit has

explained, “[t]he ‘penalty’ imposed on the prosecutor (and the rest of society) by dismissing with

prejudice rises with the seriousness of the crime.” Fountain, 840 F.2d at 512. 

The Act also seeks to avoid unduly impairing the enforcement of federal criminal laws by

allowing for dismissal without prejudice in appropriate cases. See Zedner, 547 U.S. at 499, 126

S.Ct. at 1984-85. As the Supreme Court has stated,

the Act does not require dismissal with prejudice for every violation. Dismissal

without prejudice is not a toothless sanction: it forces the Government to obtain a

new indictment if it decides to reprosecute, and it exposes the prosecution to

dismissal on statute of limitations grounds. Given the burdens borne by the

prosecution and the effect of delay on the Government’s ability to meet those

burdens, substantial delay well may make reprosecution, even if permitted,

unlikely. If the greater deterrent effect of barring reprosecution could alone

support a decision to dismiss with prejudice, the consideration of the other factors

identified in § 3162(a)(2) would be superfluous, and all violations would warrant

barring reprosecution.

Taylor, 487 U.S. at 342, 108 S.Ct. at 2422; see also Janik, 723 F.2d at 546 (noting that dismissal

9
without prejudice “is not a completely negligible sanction, viewed from a deterrent standpoint,

since the grand jury may refuse to reindict and since even if it does the defendant may be

acquitted”). Dismissing the indictment without prejudice therefore imposes an additional burden

on the government, and it will not undermine the administration of the Act or of justice. 

A violation of the Act, without more, does not mandate dismissal with prejudice. 

Dismissal without prejudice is appropriate where – as here – Defendant has been accused of a

serious crime, he has not been prejudiced, the government has not acted in bad faith, and the

circumstances leading to the violation of the Act are unlikely to recur. See Killingsworth, 507

F.3d at 1091. Under such circumstances, “‘the purpose of the Act would not be served by

requiring the court to impose the maximum sanction for a minimum violation.’” Id. (quoting

Hawthorne, 705 F.2d at 261); see also Carreon, 626 F.2d at 533 (concluding that “the adverse

impact of reprosecution on the administration of justice and the [Act] would be slight. [The

defendant] claimed no prejudice due to the delay, the government did not intentionally seek

delay, and the unusual circumstances of the case would be unlikely to recur, thus causing the

sanctioning of similar delays in the future.”). 

10
CONCLUSION

For the foregoing reasons, the Court grants in part and denies in part Defendant

Thyfault’s Motion to Dismiss. The Second Superseding Indictment is dismissed without

prejudice. 

Dated: May 20, 2010 ENTERED:

__________________________

AMY J. ST. EVE

United States District Court Judge

11