                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-3618
                                     ___________

United States of America,                 *
                                          *
      Plaintiff/Appellee,                 *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Minnesota.
Abdel-Ilah Elmardoudi,                    *
                                          *
      Defendant/Appellant.                *
                                     ___________

                               Submitted: March 12, 2007
                                  Filed: August 30, 2007
                                   ___________

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                          ___________

JOHN R. GIBSON, Circuit Judge.

      Abdel-Ilah Elmardoudi pleaded guilty to all counts of an indictment alleging
various credit card fraud offenses and escape,1 but he conditioned his plea on his right
to appeal the district court's2 choice of remedy for violation of his speedy trial rights.


      1
       The counts were unauthorized access device trafficking, 18 U.S.C. §§
1029(a)(2) and 1029(c), possession of unauthorized access devices, 18 U.S.C. §§
1029(a)(3) and 1029(c), access device fraud, 18 U.S.C. § § 1029(a)(5) and 1029(c),
and escape, 18 U.S.C. § 751(a).
      2
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
The court had found a violation of Elmardoudi's statutory and constitutional rights in
connection with an earlier indictment and had dismissed that indictment without
prejudice. Elmardoudi argues that the district court should have dismissed the earlier
case with prejudice, thereby barring the current prosecution. We affirm the judgment
of the district court.

                                           I.

       On February 6, 2001, Elmardoudi was arrested for "shoulder surfing," that is,
surreptitiously memorizing other people's calling card and credit card numbers at the
Minneapolis-St. Paul airport and then passing the numbers on to other people who
used them to pay for telephone calls. He was indicted for unauthorized access device
trafficking, possession of unauthorized access devices, and access device fraud on
March 6, 2001, and arraigned on April 4, 2001. He was committed to a halfway house
in Minneapolis, but he escaped on April 19, 2001, and was a fugitive for about a year
and a half, until he was eventually picked up in North Carolina on November 4, 2002.

       While Elmardoudi was a fugitive, his legal entanglements multiplied. First, he
was indicted for escape in a superceding indictment in the District of Minnesota.
Next, he was charged in the North District of Iowa with conspiracy to commit Social
Security fraud. Then, he was indicted in the Eastern District of Michigan on charges
of providing material support to terrorists, as well as conspiracy and fraud with regard
to visas and identification documents.3 When he was caught in North Carolina, he had




      3
        Although the briefing does not give any details about the Michigan case,
counsel informed us at oral argument that the terrorists Elmardoudi was accused of
supporting were alleged to have been connected with the September 11, 2001 attacks,
which counsel suggests was why the government allowed Elmardoudi to languish in
jail without bringing him to trial.

                                          -2-
$87,620 in cash and an array of false identification documents, such as passports and
birth certificates.

        The government transported him to the Eastern District of Michigan to face the
charge of supporting terrorists and charges of conspiracy and fraud with regard to
visas and identification documents. Elmardoudi was convicted on those charges, but
after trial, allegations of prosecutorial misconduct came to light,4 and the district court
there vacated the conviction and dismissed the indictment without prejudice on
September 2, 2004.

      By September 21, 2004, nineteen days after the dismissal of the Michigan case,
Elmardoudi and the various federal prosecutors on his cases began discussing a
possible "global" plea agreement which would resolve all the cases against
Elmardoudi and which therefore required coordination among prosecutors and defense
lawyers in three districts. Elmardoudi's lawyers and the prosecutors signed a proffer
agreement on October 12, 2004, which was made conditional on Elmardoudi's passing
a polygraph test. He attended a two-day proffer session in Detroit on October 13 and
14. However, the prosecutor did not arrange for the polygraph test.

       Beginning in November 2004, and extending until July 26, 2005, there was a
long hiatus in which the only plea negotiation activity took place in March.
Elmardoudi was transferred from Michigan to Iowa, purportedly for the purpose of
testifying before a grand jury, but he stayed in Iowa from December 2004 until March
5, 2005, in maximum security, without ever being called to testify or to do anything
else toward resolving his case. Eventually, he was transferred back to Michigan in
mid-March 2005.


      4
       Indeed, the government joined the motion to dismiss the charges, and the lead
federal prosecutor in the Michigan case was indicted for obstruction of justice and
conspiracy for his role in the case.

                                           -3-
       Elmardoudi tried to protest his lengthy confinement. After he was transferred
back to Michigan, he wrote a letter to the district court in Minnesota complaining
about the government's inactivity on his case, but neither the prosecutors nor his own
counsel received a copy of the letter. Then, on July 19, 2005, Elmardoudi, through
counsel, filed a petition for habeas corpus in the Eastern District of Michigan.

        As soon as Elmardoudi filed the habeas petition, the government began to move
forward with his case, beginning on July 26, 2005. The government arranged a
polygraph test, which took place in August 2005. The government presented him with
a proposed plea agreement in mid-September 2005. Elmardoudi asked for changes
to that proposal, and the government sent him a revised draft. A change of plea
hearing was scheduled for September 23, 2005, in Detroit, but Elmardoudi's counsel
canceled that hearing, evidently because the parties still had not agreed on such
important points as whether the government would make a U.S.S.G. § 5K1.1 motion
under the Sentencing Guidelines. Elmardoudi and the government disagree as to
whether plea negotiations continued from October 2005 to January 3, 2006. During
that time-frame, Elmardoudi wrote yet another letter to the district court in Minnesota,
this time asking to be removed to Minnesota, but again, the court did not forward the
letter to Elmardoudi's lawyer or to the prosecutors. By January 3, 2006, Elmardoudi
had communicated to the government an unambiguous rejection of the global plea
offers and requested to be transferred to Minnesota to face the charges pending there.
From January 3 to January 26, 2006, Elmardoudi awaited transfer to Minnesota. Once
he arrived in Minnesota, he was held in pre-trial detention until February 28, 2006,
when he filed his pre-trial motions, including a motion to dismiss for violation of his
right to a speedy trial.

       In sum, between Elmardoudi's arraignment on April 4, 2001, and his speedy
trial motion, filed February 28, 2006, almost five years passed. Elmardoudi was a
fugitive for more than a year and a half of that time and was awaiting trial in Michigan
for almost two years. However, the bulk of the rest of the time was spent in a glacial

                                          -4-
process of trying to negotiate a global plea agreement disposing of charges in multiple
districts, which went on from September 21, 2004, until January 3, 2006, or a year and
a quarter. By way of comparison, the benchmark for the time from arraignment or
indictment (whichever is later) to trial under the Speedy Trial Act is 70 days. 18
U.S.C. § 3161(c)(1).

        The district court ruled on August 2, 2006, that Elmardoudi's statutory and
constitutional rights to a speedy trial under 18 U.S.C. § 3162(a)(2) and the Sixth
Amendment had been violated. The court painstakingly calculated the number of days
that counted towards the 70 day limit set by the Speedy Trial Act, 18 U.S.C. §
3161(c)(1). Specifically, the court subdivided the time between dismissal of the
Michigan charges on September 2, 2004, and the filing of the motion to dismiss for
speedy trial violation on February 28, 2006. The court excluded time that was passed
in active plea negotiations, citing United States v. Van Someren, 118 F.3d 1214, 1218-
19 (8th Cir. 1997). The court concluded that 74 days had passed that were not
excludable under any of the provisions of 18 U.S.C. § 3161(h). Additionally, the
court observed that it was doubtful whether an additional 267 days, the time period
from November 1, 2004, to July 26, 2005, could be excluded because there was so
little activity toward reaching the global plea agreement during that time; but since the
70 day Speedy Trial Act limit had been transgressed in any case, the court concluded
it was not necessary to decide about the additional 267 days.5 The court




      5
      The district court summarized its conclusions about which days were
excludable in the following table. We have highlighted the disputed periods.
 Time Period           Event                                              Non-
                                                                          Excludable
                                                                          Days
 April 4, 2001 to      Arraignment, filed pretrial motions, pretrial      0
 April 13, 2001        motions under advisement

                                          -5-
April 13, 2001 to   Order issued on pretrial motions, pretrial    6
April 19, 2001      detention with no pending motions
April 19, 2001 to   Fled halfway house, remained on escape        0
Nov. 4, 2002        status
Nov. 4, 2002 to     Arrested, faced charges in Michigan           0
Sept. 2, 2004
Sept. 2, 2004 to    Michigan charges dismissed, active plea       19
Sept. 21, 2004      negotiations not yet initiated
Sept. 21, 2004 to   Plea negotiations: entered into proffer       0
Nov. 1, 2004        agreement and prepared draft plea agreement
Nov. 1, 2004 to     Transferred to Iowa, then back to         0
July 26, 2005       Michigan, one conversation about plea
                    negotiations in March 2005 [The district
                    court added in a footnote: "If the Court
                    were to decide the issue of whether the
                    time period from November 1, 2004 to July
                    26, 2005 could be excluded under section
                    3161(h)(1) and decide not to exclude the
                    time, 267 days would be added to the
                    calculation of non-excludable time."]
July 26, 2005 to    Plea negotiations: exchanged draft plea       0
Oct. 15, 2005       agreements, underwent polygraph exams
Oct. 15, 2005 to    Plea negotiations stalled but prosecution     0
Jan. 3, 2006        not informed that plea agreement rejected
Jan. 3, 2006 to     Prosecution informed that plea agreement      23
Jan. 26, 2006       rejected, defendant awaited transfer to
                    Minnesota
Jan. 26, 2006 to    Transported from Michigan to Minnesota        0
Feb. 1, 2006

                                      -6-
dismissed the superseding indictment without prejudice.

      Elmardoudi was then reindicted and pleaded guilty to the four counts on appeal
here. His plea was conditional, reserving his right to appeal on the ground that the
current prosecution is barred because the earlier indictment should have been
dismissed with prejudice for violation of his speedy trial rights. The district court
sentenced him to 51 months' imprisonment, with the recommendation that the Bureau
of Prisons should credit him with all the time he had spent in federal detention,
including the time spent awaiting trial in the Eastern District of Michigan.

                                          II.

       On appeal, Elmardoudi makes two principal arguments attacking the district
court's decision to dismiss the indictment without prejudice. First, he contends that
the district court abused its discretion under the Speedy Trial Act because the length
of the delay calls for dismissal with prejudice. In a subsidiary point, he contends that
the district court erred in excluding the 267 day period from November 1, 2004, to
July 26, 2005, and the 80 day period from October 15, 2005, to January 3, 2006, from
the statutory speedy trial calculation. Because the district court found that
Elmardoudi's rights under the Speedy Trial Act had been violated by a lapse of 74



 Feb. 2, 2006 to       Appearance in Minnesota, arraignment on           26
 Feb. 28, 2006         superceding indictment, pretrial detention
                       without pending motions
 Feb. 28, 2006 to      Pretrial motions filed, under advisement by       0
 June 1, 2006          Magistrate Judge
 June 1, 2006 to       Report and Recommendation issued, briefing 0
 Aug. 2, 2006          on objections, under advisement by this Court
 Total                                                                   74



                                          -7-
nonexcludable days between arraignment and the motion to dismiss, the additional
two periods of time are not necessary to prove a violation of the Act. However,
whether those two periods are excusable delay is still relevant to show the severity of
the delay, which in turn is relevant in choosing the proper remedy for the violation.
Second, Elmardoudi argues that once the district court held that his Sixth Amendment
right to a speedy trial had been violated, the only possible remedy was dismissal with
prejudice.

                                          A.

       The Speedy Trial Act requires that a federal criminal defendant be brought to
trial within 70 days of his indictment or arraignment, whichever is later, 18 U.S.C. §
3161(c)(1), subject to excludable periods of time catalogued in the statute, for delays
from such things as unavailability of the defendant, trial of the defendant on other
charges, pre-trial motions, etc. See generally 18 U.S.C. § 3161(h). If more than 70
nonexcludable days elapse without the defendant being brought to trial, the indictment
shall be dismissed upon the defendant's motion. 18 U.S.C. § 3162(a)(2). In this case,
the parties do not dispute that time spent in active, good faith plea negotiations is
excludable, but Elmardoudi contends that for the periods from November 1, 2004, to
July 26, 2005 (267 days), and from October 15, 2005, to January 3, 2006 (80 days),
the government has not carried its burden of proving excludability under § 3162(a)(2)
by showing that the parties were actively engaged in negotiations.6

     The Speedy Trial Act entrusts to the district court's discretion the decision of
whether to dismiss with or without prejudice, and "neither remedy was given priority."



      6
       Although Elmardoudi contends that the government must prove excludability,
section 3162(a)(2) actually puts the burden of going forward on the government only
for the exclusion of time under § 3161(h)(3), delay resulting from the absence or
unavailability of the defendant or an essential witness.


                                         -8-
United States v. Taylor, 487 U.S. 326, 335 (1988); see 18 U.S.C. § 3162(a)(2). The
Act guides the district court's exercise of discretion:

      In determining whether to dismiss the case with or without prejudice, the
      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.

18 U.S.C. § 3162(a)(2). In addition to these factors, a district court should consider
the presence or absence of prejudice to the defendant resulting from the violation of
the Act. Taylor, 487 U.S. at 334; United States v. Becerra, 435 F.3d 931, 935 (8th
Cir. 2006). The boundaries of the district court's discretion are framed by the factors
Congress required it to consider; if, therefore, the district court "ignore[s] or slight[s]
a factor that Congress has deemed pertinent to the choice of remedy," it abuses its
discretion. Taylor, 487 U.S. at 336-37. The district court is obliged to articulate its
reasoning in order to permit us to review its decision. Id. at 336. Moreover, the
district court abuses its discretion if it relies on a clearly erroneous factual finding or
an erroneous application of law to fact. Id. at 337. However, if the district court fully
considers the required factors and does not rely on clearly erroneous factual findings,
"the district court's judgment of how opposing considerations balance should not
lightly be disturbed." Id. Nevertheless, even if it considers only the proper factors,
the district court can abuse its discretion if it commits a clear error in judgment in
weighing the factors. United States v. Kramer, 827 F.2d 1174, 1179 (8th Cir. 1987).

       Elmardoudi contends that the district court relied on an erroneous conclusion
that all but 74 days of the time between his arraignment and his motion to dismiss
were excludable because two periods were wrongly categorized. The district court
held that the 80 days between October 15, 2005, and January 3, 2006, were excludable
because, even though Elmardoudi had decided sometime within this period that he did
not want to continue negotiations, neither Elmardoudi nor his counsel informed the



                                           -9-
government that the deal was off until January 3, 2006. The affidavit of Elmardoudi's
counsel Katherine M. Mendendez indicates that during this time frame, the defense
team, in accord with Elmardoudi's directions, held out hope to the government that a
global resolution still might be worked out. We see no clear error in the district
court's finding that Elmardoudi never informed the government until the end of the
disputed 80 day period that he had withdrawn from plea negotiations. We therefore
hold that the district court did not abuse its discretion in relying on the finding that the
80 days were excludable.

       The question of whether the 267 day period from November 1, 2004, to July 26,
2005, should be excluded is a more vexing problem. The district court found that plea
negotiations were almost completely stalled during that time, with only one discussion
between defense and prosecutors, which took place in March 2005. Because progress
was so minimal, the district court avoided deciding whether the period was
excludable. In United States v. Van Someren, 118 F.3d 1214, 1218-19 (8th Cir.
1997), we held, as an alternative holding, that fourteen days were excludable because
spent on plea negotiations. It is far from clear that Van Someren meant to lay down
a per se rule that all time periods in which there were any open plea negotiations was
excludable. Excluding a period of fourteen days, as in Van Someren, is a far different
matter than excluding 267 days, as the government urges here, particularly when the
negotiations were dormant most of the time. The question is all the more difficult
because we have no finding of fact to review. See United States v. Yerkes, 345 F.3d
558, 561 (8th Cir. 2003) (reviewing district court's factual findings on speedy trial
issue for clear error and conclusions of law de novo).

      Nevertheless, we conclude that it is not necessary to remand for categorization
of the 267 days, because no matter whether or not those days are categorized as
excludable, the district court took into account the extent of the delay in bringing
Elmardoudi to trial and the government's responsibility for the delay.




                                           -10-
      The district court considered each of the statutory factors:

             The Court concludes that dismissal without prejudice is warranted
      here. First, both the nature of the conduct alleged and the penalties
      attached to the alleged offenses demonstrate that defendant is charged
      with serious felony offenses. Second, while it appears that the speedy
      trial violations were due to the prosecution's negligence, there is no
      indication that the negligence was in reality an attempt to obtain a
      tactical advantage. Third, dismissing the case without prejudice would
      provide the prosecution the opportunity to seek a new indictment and
      pursue this possibly important case, while at the same time furthering the
      interests of the Speedy Trial Act by making clear that the prosecution's
      delay in this case was not excusable. Finally, the fact that defendant has
      suffered little or no prejudice in terms of unavailability of witnesses or
      evidence also warrants dismissal without prejudice.

(citation omitted). Elsewhere, the court expressed particular disapproval of the
government's neglect during the disputed 267 day period:

      The prosecution's delay between the proffer session in mid-October 2004
      until the filing of the habeas petition on July 19, 2005, seems impossible
      to justify. The prosecution made no arrangement for the polygraph
      examinations of defendant, even though the prosecution made execution
      of a plea agreement contingent on defendant 'passing' a polygraph
      examination.

Moreover, the court found that Elmardoudi had suffered prejudice due to his long
detention in maximum security and held that delay had caused Elmardoudi to suffer
"a general sense of discouragement that the judicial process will never end." While
the court surmised that the "complexity of managing indictments in three separate
federal districts at the same time contributed significantly to the extraordinary delays
in the prosecution of Mr. Elmardoudi," the court nevertheless decided that the
practical difficulties did not excuse the delay.




                                         -11-
      In a case in which two years and two months elapsed between indictment and
motion to dismiss for a speedy trial violation, we affirmed the district court's dismissal
without prejudice. United States v. Wiley, 997 F.2d 378, 384-85 (8th Cir. 1993). In
Wiley, the defendant and the government had engaged in plea negotiations that
ultimately failed, but which dragged on for months because of poor communication
by the defendant and his lawyer and lack of diligence by the government. Even
though the government was remiss in failing to follow up on its proposed offers, we
discerned no abuse of discretion in the district court's remedy of dismissal without
prejudice. Id. at 385. Wiley's facts were similar to those in this case (although the
delay in Wiley was much longer) and its holding confirms that the district court's
decision in this case was within the scope of its discretion.

       Even assuming that the Speedy Trial Act's 70 day limit was exceeded by 271
days, rather than the four days explicitly found by the district court, we conclude that
the district court took into account the government's lack of diligence in pursuing the
plea agreement during that time and the prejudice to Elmardoudi for the long delay.
We discern no abuse of discretion in the district court's choice of the remedy of
dismissal without prejudice.

                                           III.

       In addition to the Speedy Trial Act violation, the district court held that
Elmardoudi's Sixth Amendment right to a speedy trial had been violated. Elmardoudi
argues that once the district court found his Sixth Amendment speedy trial rights had
been violated, it was required to dismiss the indictment with prejudice, which is the
only remedy for a Sixth Amendment speedy trial violation.7 The government did not

      7
       The Supreme Court has said that the only possible remedy for a Sixth
Amendment speedy trial violation is dismissal. Strunk v. United States, 412 U.S. 434,
440 (1973); Barker v. Wingo, 407 U.S. 514, 522 (1972). It is generally agreed that
this means dismissal with prejudice. See United States v. Jackson, 473 F.3d 660, 664


                                          -12-
appeal the district court's finding of a Sixth Amendment violation, although it
contends that it would have done so if it had been advised within its time to appeal
that Elmardoudi would make the argument he now urges before us.

       Not having preserved its right to attack the finding of a violation of
constitutional rights, the government responds that Elmardoudi did not preserve his
objection to the remedy chosen because he never contended in the district court that
a Sixth Amendment violation required dismissal with prejudice. Accordingly, the
government contends that the issue can only be reviewed for plain error under Fed.
R. Crim. P. 52(b).

       While Elmardoudi did ask the court below to dismiss with prejudice, his
argument was made primarily under the Speedy Trial Act, which, as we have seen,
allows the district court to choose whether to dismiss with or without prejudice. In
that context, Elmardoudi argued that the district court should choose dismissal with
prejudice, instead of without. He then continued, "The same result is reached under
the Sixth Amendment . . . ." Thus, Elmardoudi did not contend below that the Sixth
Amendment speedy trial remedy was different from the statutory speedy trial remedy
or that dismissal with prejudice was mandatory. We will therefore apply plain error
review to the district court's choice of remedy. See United States v. Serna-Villareal,
352 F.3d 225, 231 (5th Cir. 2003) (even though appellant moved to dismiss in district
court for Sixth Amendment speedy trial violation, where he failed to raise two
contentions of prejudice from the delay, court applied plain error review to those
contentions).


(6th Cir.), cert. denied, 127 S. Ct. 2294 (2007); Akhil Reed Amar, Sixth Amendment
First Principles, 84 Geo. L. J. 641, 650 (1996); 2 David S. Rudstein, C. Peter Erlinder,
& David C. Thomas, Criminal Constitutional Law § 11.01[1][d] (2006). The
government does not dispute that dismissal with prejudice is the only remedy for a
Sixth Amendment speedy trial violation.



                                         -13-
       We can reverse on the basis of error that was not objected to in the district court
only if there was indeed error, the error was plain, and it affected the defendant's
substantial rights. United States v. Olano, 507 U.S. 725, 732-35 (1993). Once those
requirements are met, we have the discretion to notice the error, but are not required
to do so. Id. at 735. We will exercise our discretion to notice plain error only if the
error "seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings," whether because the defendant is actually innocent or for some other
reason. Id. at 736-37.

       The government does not dispute that there was an error and that it was plain.
Instead, the government contends that we should not notice the error because it does
not "seriously affect the fairness, integrity, or public reputation" of these judicial
proceedings. In Johnson v. United States, 520 U.S. 461, 470 (1997), and United
States v. Cotton, 535 U.S. 625, 633-34 (2002), the Supreme Court held it would have
been (in Johnson) or was (in Cotton) inappropriate for the Court of Appeals to notice
forfeited errors where the evidence of the defendant's guilt was uncontroverted or
overwhelming. In those cases, the Supreme Court held that the public's interest in
conviction and punishment of the guilty outweighed competing constitutional values
such as preserving the grand jury and petit jury's roles in checking prosecutorial
power. See Cotton, 535 U.S. at 634. Here, Elmardoudi has pleaded guilty to crimes
involving losses to the victims in the range of four to five million dollars. Elmardoudi
does not contend that he was innocent or that the speedy trial violation prejudiced him
in the sense of making it harder to defend himself, thus casting doubt on his guilt.
Thus, while we acknowledge the gravity of the Sixth Amendment violation, we
nevertheless do not find this to be a case appropriate for the exercise of our discretion
to review plain error.

      We affirm the judgment of the district court.
                      ______________________________




                                          -14-
