                             In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 14-1901
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,

                                v.

JACKIE H. RICHARDSON,
                                            Defendant-Appellant.
                    ____________________

         Appeal from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
     No. 1:13-cr-00070-TWP-DKL-1 — Tanya Walton Pratt, Judge.
                    ____________________

   ARGUED JANUARY 27, 2015 — DECIDED MARCH 12, 2015
                    ____________________

   Before POSNER, SYKES, and HAMILTON, Circuit Judges.
    POSNER, Circuit Judge. The Sixth Amendment to the Con-
stitution provides that “in all criminal prosecutions, the ac-
cused shall enjoy the right to a speedy … trial.” The brevity
of the provision is striking. There is no quantification of
“speedy” and no specification of when in the course of a
criminal investigation or prosecution the speedy-trial clock
begins to tick. But the Supreme Court has held that it does
not begin to tick “before a defendant is indicted, arrested, or
2                                                   No. 14-1901


otherwise officially accused.” United States v. MacDonald, 456
U.S. 1, 6 (1982). To the same effect see United States v. Marion,
404 U.S. 307, 313 (1971), and United States v. Loud Hawk, 474
U.S. 302, 310 (1986). The question presented by this appeal is
whether or in what circumstances the clock begins to tick
when a federal complaint and detainer are served on a per-
son who is being prosecuted by a state.
    In United States v. Zukowski, 851 F.2d 174, 178 (7th Cir.
1988), we interpreted MacDonald to hold that the “official ac-
cusation” to which the Supreme Court referred in that case
must be a formal charging document, such as an indictment
or information. We’ll see that a complaint, affidavit of prob-
able cause, and detainer (the documents at issue in this case),
even in combination, are not the equivalent of an indictment
or information.
    “Someone who is only the target of a criminal investiga-
tion has no right to have the government wrap up its inves-
tigation quickly and bring charges, even if the target is
aware of the investigation.” United States v. Clark, 754 F.3d
401, 405 (7th Cir. 2014); see also, e.g., Pharm v. Hatcher, 984
F.2d 783, 785 (7th Cir. 1993). “[E]ven an arrest by the federal
authorities is insufficient if the person is immediately re-
leased without any federal charges being filed.” United States
v. Clark, supra, 754 F.3d at 405. (Clark was a Speedy Trial Act
case, but we noted in it that “the Sixth Amendment speedy
trial right, from which the Speedy Trial Act draws its sub-
stance, applies only to persons who are formally accused of
a crime.” Id.) Only if an arrested person is detained pending
indictment does the speedy-trial clock begin to tick upon ar-
rest. See, e.g., United States v. Loud Hawk, supra, 474 U.S. at
310 (“when no indictment is outstanding, only the ‘actual re-
No. 14-1901                                                       3


straints imposed by arrest and holding to answer a criminal
charge ... engage the particular protections of the speedy tri-
al provision of the Sixth Amendment,’” quoting United States
v. Marion, supra, 404 U.S. at 320); Dillingham v. United States,
423 U.S. 64, 65 (1975) (per curiam).
    Richardson was arrested by Indiana police on December
17, 2011, for committing a vicious domestic battery and in-
timidation with a deadly weapon, in violation of Indiana
law. A search of his home, conducted the same day, revealed
a remarkable collection of guns and ammunition—
apparently he manufactured guns (from the gun parts) and
also ammunition. Because he previously had been convicted
in federal court of illegal possession of a firearm by a felon,
his gun-related activities violated federal as well as state
law. So just four days after his arrest the U.S. Attorney filed
a criminal complaint and affidavit of probable cause in a
federal court in Indiana, and a federal detainer in the jail in
which Richardson was being held on the state charges.
    Such a complaint must not be confused with a civil com-
plaint. A civil complaint initiates a civil suit. Fed. R. Civ. P. 3.
A criminal complaint can initiate only a misdemeanor prose-
cution. Fed. R. Crim. P. 58(b). A complaint that charges a fel-
ony can establish a basis for an arrest warrant, justify an ar-
rest made without a warrant, initiate, continue, or expand an
investigation, and notify other law enforcement agencies of
its concern with the person arrested or investigated. Fed. R.
Crim. P. 3, 4(a), 5(b); United States v. Alvarado, 440 F.3d 191,
200 (4th Cir. 2006). But unlike an indictment or information,
it cannot initiate a felony prosecution. An indictment or in-
formation must be signed by a government lawyer; a com-
plaint, because it cannot initiate a felony prosecution, need
4                                                   No. 14-1901


not be, Fed. R. Crim. P. 3, 7(c)(1), and was not in this case.
And even a complaint plus a detainer imposes no depriva-
tion of liberty on the defendant.
   All that the complaint in this case said is that the agent of
the Federal Bureau of Alcohol, Tobacco, Firearms and Explo-
sives who signed it was swearing that “to the best of [her]
knowledge and belief,” on a specified date the “defendant
did unlawfully possess a firearm as a convicted felon” and
was thus “in violation of” of the federal criminal code. See 18
U.S.C. § 922(g)(1). This signals an investigation rather than a
prosecution.
    No more does an affidavit (filed with the complaint in
this case) in support of a search warrant kick off a prosecu-
tion. United States v. Alvarado, supra, 440 F.3d at 200. As for a
detainer, it merely informs the jail that a person held there is
wanted on other criminal charges and the jail should there-
fore notify the agency that issued the detainer of the prison-
er’s imminent release, so that the agency can arrest him. The
federal court issued a warrant for Richardson’s arrest, but of
course the warrant wasn’t executed, because he was already
in jail. The state court set his bail at $500,000. He couldn’t
make bail, and so remained in jail throughout the state pro-
ceedings against him.
    On March 21, 2013, approximately fifteen months after
his arrest, Richardson pleaded guilty in state court to felony
intimidation and was sentenced to time served. He would
thus have been a free man had it not been for the federal de-
tainer. The day after he was sentenced the federal warrant
for his arrest that had been issued immediately after his state
arrest was executed, and he was jailed. The following month
he was indicted on federal charges of being a felon in pos-
No. 14-1901                                                  5


session of firearms and also for illegal possession of a sub-
machine gun (35 of the items found on his property were ei-
ther submachine guns or parts of such guns).
    Initially he was disposed to plead guilty to the federal
charges, but he changed his mind and on January 28, 2014,
filed a motion to dismiss the federal case on the ground that
the government had violated his Sixth Amendment right to a
speedy trial. He argued that the speedy-trial clock had start-
ed to tick when the federal complaint and detainer had been
filed four days after his arrest on state charges. Between then
and the issuance of his federal indictment 16 months had
elapsed, which would indeed have been a considerable de-
lay, raising a colorable speedy-trial issue, had the federal
prosecution begun back in December 2011 when the gun
cache was discovered. The government argues that the clock
did not begin to tick until the federal warrant for Richard-
son’s arrest was executed in March 2013 upon the comple-
tion of his state sentence.
    His federal trial was scheduled for June 2013 and would
thus have been “speedy” relative to the federal indictment
had the trial not been delayed—but the delay was at the be-
hest of Richardson, who that month said he would plead
guilty and therefore asked for a continuance of the trial. Not
until January of the following year did he repudiate his
agreement to plead guilty, and move to dismiss the indict-
ment on speedy-trial grounds. The district judge denied the
motion. Richardson then pleaded guilty and was sentenced
to 120 months in prison. His appeal is from the denial of his
motion to dismiss the indictment. If it should have been
granted, his conviction and sentence must be reversed.
6                                                    No. 14-1901


    He argues that he was “officially accused” of a federal
crime when the federal government filed its complaint and
detainer the day after his arrest by state officers. Now the
Supreme Court in MacDonald did not actually say that the
speedy-trial clock begins to tick when there is an official ac-
cusation of a federal crime—rather that it doesn’t begin to
tick before then; the official accusation is the earliest time at
which it begins to tick. But subsequent cases, while continu-
ing to cite MacDonald approvingly, regard “arrest [provided
the person arrested isn’t immediately released], indictment,
or other official accusation” as a trigger rather than merely
as an analytical starting point. See, e.g., Doggett v. United
States, 505 U.S. 647 (1992); United States v. Loera, 565 F.3d 406,
412 (7th Cir. 2009); Pharm v. Hatcher, supra, 984 F.2d at 785.
That evolution of the law can’t help Richardson, however.
The relevant arrest (that is, one followed by detention) must
be for a suspected federal crime, and there was no federal
arrest when he was arrested on state charges, even though
the feds were in the vicinity, so to speak, having accompa-
nied state officers on the search of his premises. See United
States v. Clark, supra, 754 F.3d at 405.
     The distinction is important. To hold that the clock began
to run upon the commencement of the state proceeding
against Richardson, on the theory that he was in effect offi-
cially accused of a federal as well as a state crime, would
produce a messy clash of governments (Indiana’s state gov-
ernment and the federal government) with no likely benefit
to the defendant. The state had arrested him primarily for
domestic battery, a state not federal offense. The purpose of
filing the federal complaint and detainer was just to make
sure that he wasn’t released before the feds were able to ar-
No. 14-1901                                                  7


rest him and book him for violation of federal gun laws, if
they decided to prosecute him.
    Had the speedy-trial clock begun to run upon the filing
of the complaint and detainer, the U.S. Attorney would have
been under pressure to indict Richardson forthwith and pro-
ceed with all deliberate speed to trial—with the result that
Richardson would have been fighting prosecution by two
sovereign entities, the State of Indiana and the United States
of America, at the same time. If the state decided to take a
pass, it would be throwing away its domestic-battery charge,
which had no counterpart in the federal case. If the feds took
a pass, they would be throwing away gun charges more ex-
tensive than those involved in the state prosecution. And
had the state and federal prosecutions proceeded simultane-
ously, Richardson might squawk at having to defend himself
in two trials at the same time, while if one trial were delayed
he would complain of a speedy-trial violation.
    We can’t think of a good reason for the Justice Depart-
ment to have barged into the state’s proceeding by institut-
ing an overlapping federal prosecution. When a person is
credibly accused of violating both federal and state law, he
exposes himself to prosecution by both federal and state au-
thorities—and thus to two separate proceedings, which rare-
ly can efficiently be conducted simultaneously. As noted in
United States v. Schreane, 331 F.3d 548, 554–55 (6th Cir. 2003)
(for clarity, we omit citations and internal quotation marks
and rearrange some sentences), when state and federal
charges are lodged against a defendant “at least one sover-
eign … will have to wait its turn at the prosecutorial turn-
stile. [For delay that is] due to the obvious need to allow the
defendant to be prosecuted by the State without interference
8                                                 No. 14-1901


by the federal government” is unavoidable. “Customarily—
although certainly not always—the jurisdiction with custody
of the accused ... is afforded the first opportunity to prose-
cute the defendant. This longstanding practice is rooted in
the respect accorded to a custodial sovereign to resolve its
criminal proceedings before relinquishing custody to anoth-
er jurisdiction. This practice also can be understood in terms
of the orderly and efficient prosecution of cases in our dual
system of criminal justice. … [S]imply waiting for another
sovereign to finish prosecuting a defendant is without ques-
tion a valid reason for delay that weighs in favor of the gov-
ernment.”
    The custodial sovereign in this case was the State of Indi-
ana. It had “first dibs” (the right to go first), therefore, on
prosecuting Richardson. It would be unrealistic to think that
if the accused is in custody, only minimal paperwork is
needed to shift custody as needed between the two govern-
ments from time to time. That would turn the criminal pro-
cess into a game of shuttlecock. See United States v. Watford,
468 F.3d 891, 900–03 (6th Cir. 2006); United States v. Grim-
mond, 137 F.3d 823, 827–29 (4th Cir. 1998). The sequencing of
prosecutions and the resulting delay, often long, of one of
them, are the inevitable consequence of a governmental
structure that gives separate governments overlapping ju-
risdictions.
    Richardson points out that there was “cooperation” be-
tween state and federal officers from the outset. When his
girlfriend complained to the police about his beating her up,
she mentioned his collection of guns, and so the police in-
formed the ATF, whose agents joined the police in searching
Richardson’s property and seizing the guns, gun parts, and
No. 14-1901                                                   9


ammo found there. But the feds had no interest in or for that
matter jurisdiction over the domestic battery and so let the
state proceed first. Had the state been the feds’ cat’s paw,
charging Richardson with the battery offense solely in order
to detain him pending an eventual federal indictment, the
state prosecution would have been a de facto federal prose-
cution and the speedy-trial clock would have started to run
when Richardson was charged by the state. See, e.g., United
States v. Dyer, 325 F.3d 464, 468 (3d Cir. 2003). But that isn’t
what happened. See United States v. Clark, supra, 754 F.3d at
405–06.
    Even if, contrary to what we’ve said, the speedy-trial
clock began to tick with respect to the federal prosecution
when the federal complaint, affidavit of probable cause, and
detainer were filed, there would still be no violation of the
Sixth Amendment. Like most constitutional rights, the right
to a speedy trial is not absolute; it yields in the face of com-
pelling circumstances. The most obvious such case is where
the defendant prevents a speedy trial from being held be-
cause he has fled, or refused to enter, the jurisdiction in
which the trial would be held, as in In re Kashamu, 769 F.3d
490, 493–94 (7th Cir. 2014). One step down, but deemed im-
portant in Barker v. Wingo, 407 U.S. 514, 532 (1972), is a de-
fendant’s “failure to assert the right [to a speedy trial],”
which the Court said “will make it difficult for a defendant
to prove that he was denied a speedy trial.” There were rea-
sons for delay in this case, and none for attempting to try the
defendant in federal court while he was defending himself
in state court, or insisting that he be tried first in federal
court and only after a judgment was entered by that court
tried in state court.
10                                                No. 14-1901


    It’s not as if delay always favors the prosecutor, and so
always supports a speedy-trial claim. Many defendants are
content or even prefer to sit around and wait for witnesses to
die or vanish or forget. For if the defendant is guilty there
are likely to be more witnesses helpful to the government’s
case than to the defendant’s. And the government will usu-
ally need more witnesses than the defendant because the
government must prove guilt beyond a reasonable doubt,
and the defendant has no burden of proof whatsoever. And
so on average the death, disappearance, forgetfulness, or re-
cantation of a witness will favor the defendant and thus put
him on the slow side of the case.
    Richardson relies heavily on Smith v. Hooey, 393 U.S. 374
(1969), which preceded the MacDonald and Marion decisions.
The defendant was in federal prison on federal charges. A
state had filed formal charges against him and he wanted a
trial on those charges. The state refused. It said he’d have to
wait till the completion of his federal prison sentence. The
state gave no reason for not complying with his request for a
speedy trial other than that it was its policy not to try some-
one who was in prison on other charges. The Supreme
Court, which had already held that the Sixth Amendment’s
speedy-trial right would be deemed to have been made ap-
plicable to state prosecutions by the Fourteenth Amend-
ment, Klopfer v. North Carolina, 386 U.S. 213, 223–26 (1967),
didn’t think the state’s reason adequate.
   But not only did Richardson not ask for a federal trial
during his state confinement; he had not yet been convicted
and sentenced by the state court. He was still awaiting trial,
so that had he been placed on trial for his federal offenses
the proceedings would have overlapped, a result likely to
No. 14-1901                                                   11


sow confusion. See United States v. Watford, supra, 468 F.3d at
902–03; United States v. Grimmond, supra, 137 F.3d at 828–29.
    All this said, we acknowledge that the extreme vague-
ness of the speedy-trial clause of the Sixth Amendment, and
the limited clarification of it that has been attempted by the
Supreme Court, open up a potential for prejudice to a de-
fendant caught between two sovereigns. Suppose Indiana
had dawdled in prosecuting Richardson and as a result not
16 months but 3 years had elapsed between the filing of the
federal complaint, affidavit, and detainer and the federal in-
dictment. A delay of such length might have seriously prej-
udiced Richardson’s defense. The best solution in such a
case might be, as suggested in Pharm v. Hatcher, supra, 984
F.2d at 786–87, to inquire whether the prejudice was so
great, and not excused by any legitimate need of the gov-
ernment to complete a thorough investigation before indict-
ing, that the delay had denied the defendant due process of
law. See also United States v. Lovasco, 431 U.S. 783, 796–97
(1977); United States v. Zukowski, supra, 851 F.2d at 178; United
States v. Samples, 713 F.2d 298, 302 (7th Cir. 1983); United
States v. Sanders, 452 F.3d 572, 581–83 (6th Cir. 2006). Rich-
ardson argues that he was hurt by the 16-month delay—that
had it not been for the federal detainer the state court would
have fixed his bail at an amount he could have paid. But had
he made bail the feds would have arrested him and, given
the magnitude of his illegal firearm business, the federal
court would either have denied bail or set it at a level, com-
parable to that set by the state court for its narrower set of
charges, that he could not afford. And finally there is no in-
dication that the government’s delay in indicting him was
intended to impede his defense.
12                                            No. 14-1901


   The district judge was right to deny the motion to dis-
miss the federal prosecution.
                                                AFFIRMED.
No. 14-1901                                                   13

    HAMILTON, Circuit Judge, concurring in the judgment. I
agree with my colleagues that defendant Jackie Richardson’s
speedy trial right under the Sixth Amendment was not vio-
lated here. I would follow a much narrower path to that con-
clusion, however, to stay more consistent with Supreme
Court precedent and to preserve the ability to deter or pre-
vent unduly prejudicial delay in future cases.
   The majority affirms the district court’s judgment on two
grounds: (1) the combination of a federal complaint, arrest
warrant, and detainer does not trigger speedy trial concerns
because it does not add up to an “official accusation” within
the meaning of United States v. MacDonald, 456 U.S. 1, 6
(1982), and in the alternative, (2) Richardson has not shown a
violation of his right to a speedy trial. I agree with my col-
leagues on the second ground but not the first.
    Start with our agreement. Richardson has preserved his
Sixth Amendment objection only as to the sixteen months
between the filing of the federal complaint and detainer on
December 20, 2011 and his federal indictment on April 10,
2013. (He has not invoked the more detailed statutory pro-
tections of the Speedy Trial Act, 18 U.S.C. § 3161 et seq.,
which would not help him here.) To weigh whether Richard-
son’s Sixth Amendment right was violated by that sixteen-
month delay, we should apply the factors set forth in Barker
v. Wingo, 407 U.S. 514, 530 (1972). See Doggett v. United States,
505 U.S. 647, 655–56 (1992) (applying Barker factors). The fac-
tors are the length of the delay, the reasons for the delay,
whether the defendant asserted his right to a speedy trial,
and any prejudice the defendant suffered by the delay.
   These factors show that Richardson’s Sixth Amendment
right to a speedy trial was not violated. The first factor, the
14                                                No. 14-1901

sixteen-month delay, is sufficient to justify concern and fur-
ther analysis, as the majority recognizes. United States v.
Arceo, 535 F.3d 679, 684 (7th Cir. 2008) (a delay approaching
one year is presumptively prejudicial); United States v.
Oriedo, 498 F.3d 593, 597 (7th Cir. 2007) (same).
    The second and third Barker factors, which are closely re-
lated here, weigh heavily against Richardson. The reasons
for the delay are best seen as shared between the govern-
ment and the defendant. The federal government chose to
defer to the state prosecution. That was certainly a reason-
able decision. It was also a decision that Richardson did
nothing to challenge until after the state prosecution was
complete, after the federal prosecution was well under way,
and after the challenged delay had already passed. In such a
situation, where the defendant faces both federal and state
prosecutions in sequence, if the defendant indicates no de-
sire to force the deferred prosecution forward, there should
be no Sixth Amendment violation.
    In other cases, however, a defendant in this situation—
target of a federal complaint and detainer while in state cus-
tody—should be entitled to require the federal prosecutors
to “put up or shut up.” Given the fruits of the search of
Richardson’s property, the federal prosecutors no doubt
could have “put up” quite readily, but that will not always
be the case.
    The fourth Barker factor is whether the delay prejudiced
the defendant. Richardson has not shown prejudice from the
delay in this case. For purposes of the Sixth Amendment
speedy trial right, prejudice can take many forms, of course,
including loss of liberty, disruption of employment and as-
sociation with other people, financial drains, and continuing
No. 14-1901                                                                15

harm to reputation. Oriedo, 498 F.3d at 600–01, citing United
States v. Marion, 404 U.S. 307, 320 (1971), and Barker, 407 U.S.
at 532–33. But Richardson’s claim falls short on this score.
During the relevant time, he was in state pretrial custody
and was busy defending the state criminal charges. He has
not identified loss of exculpatory evidence or other obvious
forms of prejudice.
    He argues on appeal that the federal detainer caused the
state court to set his bail so high ($500,000) that he could not
afford to post bond, so that the federal detainer caused him
to be stuck in jail pending the resolution of his state charges.
That is possible, but on this record, we would have to specu-
late about the role the federal detainer played, if any, in the
state court’s initial bail decision. Richardson was accused in
state court of a violent attack on his girlfriend. He also had
in his home an extraordinary arsenal of illegal firearms and
ammunition, as well as equipment to manufacture firearms.
Perhaps the state court viewed him as dangerous enough to
set an impossible bail amount regardless of the federal accu-
sation. Perhaps the federal detainer tipped the balance in the
state court’s bail decision. Richardson does not seem to have
challenged the state court’s bail decision, and we cannot set
aside his federal conviction based on speculation about the
role the federal detainer might have played. 1


    1 The majority speculates at page 11 that if Richardson had made bail
in the state court, a federal court would either have denied bail or set bail
deliberately at a level he could not afford. In fact, in the Southern District
of Indiana, pretrial release and detention decisions under 18 U.S.C.
§ 3142 are based on estimates of the defendant’s risk of flight and danger
to the community. Pretrial release in that district is almost never condi-
tioned on the defendant’s ability to post any bail amount at all.
16                                                  No. 14-1901

    Richardson also argues that the delay in the federal pros-
ecution caused him prejudice by making the prior state con-
viction part of his criminal history, raising the sentencing
guideline range for his federal convictions. That should not
count as a relevant form of prejudice. If the federal prosecu-
tion had gone forward first, then his federal convictions
would have been relevant criminal history for the state
courts. The Sixth Amendment right to a speedy trial does not
give a defendant a constitutional right to the more advanta-
geous sequence in those sentencing decisions.
    Under this reasoning, then, Richardson’s Sixth Amend-
ment speedy trial right was not violated, and on this basis, I
agree we should affirm his conviction. I disagree, however,
with the majority’s more sweeping pronouncement—which
is not necessary to resolve this case—that the combination of
a federal complaint, arrest warrant, and detainer can never
trigger speedy trial concerns.
    That pronouncement is based on too narrow a reading of
Supreme Court decisions in this area. The majority’s reason-
ing also fails to appreciate the risk of prejudice, especially to
an innocent defendant, and exaggerates the speedy trial doc-
trinal problems and logistical difficulties of managing paral-
lel state and federal prosecutions.
    First, the Supreme Court decisions. The majority’s rea-
soning conflicts with Smith v. Hooey, 393 U.S. 374 (1969).
Smith was in federal prison but faced criminal charges in
state court. He wanted to be brought to trial on the state
charges and sought for six years to get a prompt trial. The
state refused because he was already in prison serving an-
other sentence. After the state court refused to dismiss the
charges, the Supreme Court reversed and held that the state
No. 14-1901                                                   17

was required at least to make a good faith effort to try Smith
by asking the federal government to transfer his custody for
a state trial.
    Smith pointed out that the purposes of the speedy trial
guarantee can apply even to a person being held in custody
by another sovereign. Undue delay may cause the person to
lose forever the possibility of at least partially concurrent
sentences; the conditions of his current custody may be
harsher than otherwise; the threat of another pending charge
may be as oppressive as for a person who remains free; and
long delays can impair a person’s ability to defend against
the pending charge. Smith, 393 U.S. at 378–79. The Smith
Court did not suggest that its reasoning depended on
whether the defendant was in federal custody or state custo-
dy, or whether the second, pending case was in federal or
state court. Its reasoning should apply here, where the fed-
eral and state roles are reversed.
   The majority points out correctly that Smith pushed for a
speedy state trial, while Richardson made no such effort
here. In my view, that’s the decisive difference between the
cases, and it’s why I concur in the judgment here. The
speedy trial issue, however, is better addressed under the
Barker framework. The majority’s rigid conclusion that the
speedy trial right does not apply at all here conflicts with the
reasoning of Smith.
    In fact, in the wake of Smith v. Hooey, the Supreme Court
has applied a standard that is more pragmatic and flexible
than the majority’s approach. The constitutional right attach-
es when a defendant is “indicted, arrested, or otherwise offi-
cially accused.” United States v. MacDonald, 456 U.S. 1, 6 (1982)
18                                                  No. 14-1901

(emphasis added), citing United States v. Marion, 404 U.S. 307,
313 (1971); see also Doggett, 505 U.S. at 655.
    My colleagues contend that a complaint does not “offi-
cially accuse” a person of a crime within the meaning of
MacDonald, Marion, and Doggett. The complaint itself shows
that is about as official an accusation as can be imagined that
is not an indictment or information. (The Supreme Court
opinions refer to other official accusations as a category dis-
tinct from an indictment or federal arrest that were also
mentioned.) A complaint asserts, under oath, that there is
probable cause to believe a particular person committed a
particular crime. It is “a written statement of the essential
facts constituting the offense charged.” Fed. R. Crim. P. 3.
The majority points out that a complaint need not be signed
by a prosecutor, but how is such a specific accusation signed
under oath by a federal law enforcement officer any less an
“official accusation” within the meaning of Doggett, Mac-
Donald, or Marion? It is not an indictment or information, but
it is surely an “official accusation.” A complaint, especially
when followed by an arrest warrant and detainer, is not
merely a sign of a pending investigation, as my colleagues
contend. It makes a quite specific, quite official accusation of
a federal crime.
    At least three other circuits agree with the approach I
would adopt. In a case indistinguishable from this one, Unit-
ed States v. Thomas, 55 F.3d 144 (4th Cir. 1995), the Fourth Cir-
cuit held that the “combination of the criminal complaint,
the arrest warrant, and the federal detainer were sufficient to
implicate the speedy trial provision of the Sixth Amend-
ment.” Id. at 149, citing Dickey v. Florida, 398 U.S. 30 (1970),
and Smith, 393 U.S. at 377–83. Having determined that the
No. 14-1901                                                            19

speedy trial right attached, the Thomas court then applied the
Barker factors and found no violation, largely for the same
reasons Richardson’s claim fails here: the defendant did not
push for a speedy federal trial, and federal prosecutors rea-
sonably delayed the federal prosecution so that the state
prosecution could run its course without interference. Id. at
149–51. That’s the better approach here.
    Taking an even broader approach, the Ninth Circuit held
in United States v. Terrack, 515 F.2d 558, 559 (9th Cir. 1975),
that a complaint was a sufficiently official “accusation” to
trigger the defendant’s Sixth Amendment speedy trial right
under the reasoning of Marion. The Ninth Circuit then ap-
plied the Barker factors to find no violation where the post-
complaint, pre-indictment delays had been caused first by
the defendant’s evasion of capture and then by mutual con-
sent during negotiations between the defendant and the
government. Id. The Ninth Circuit has applied similar rea-
soning in Northern v. United States, 455 F.2d 427, 429 (9th Cir.
1972) (filing of federal complaint against defendant in state
custody triggered Sixth Amendment speedy trial right, but
defendant’s own efforts to block removal from state custody
defeated his claim). 2
    In another similar case, the First Circuit, in United States
v. Henson, 945 F.2d 430, 437 (1st Cir. 1991), assumed without
explanation that the issuance of a federal complaint, arrest
warrant, and detainer for a person in state custody was suf-

    2 There are, however, other Ninth Circuit cases taking a narrower
approach. See Arnold v. McCarthy, 566 F.2d 1377, 1382 (9th Cir. 1978)
(speedy trial right engaged by arrest and arraignment, not by earlier
complaint); Favors v. Eyman, 466 F.2d 1325, 1327–28 (9th Cir. 1972) (same,
even though defendant was in state custody on unrelated charge).
20                                                            No. 14-1901

ficient to trigger the Sixth Amendment speedy trial inquiry,
though again the Barker factors were applied to find no vio-
lation in that case. Id. at 437–39.
    As explained above, I think the Supreme Court’s cases
amply support the approach I have described. But I
acknowledge that after Smith, in cases presenting Speedy
Trial Clause issues different from the issue here, some of the
Supreme Court’s language, including “official accusation,”
leaves room for debate about its application to this case. See,
e.g., the majority and dissenting opinions in United States v.
Loud Hawk, 474 U.S. 302 (1986) (holding that period after
dismissal of indictment, during which defendant was not
under indictment, incarcerated, or subject to substantial re-
strictions on liberty, did not count toward Speedy Trial
Clause claim). 3
    Given this room for argument about the Supreme Court’s
guidance, we should consider the problem more broadly to
serve the purposes of the Speedy Trial Clause and to adopt a
workable rule. The majority offers a pragmatic rationale for
its broad rule. It is concerned that recognizing a speedy trial
right under these circumstances would produce “a messy


     3At page 6, the majority relies on United States v. Clark, 754 F.3d 401,
405 (7th Cir. 2014), to say that a federal indictment, federal information,
or federal arrest is necessary to trigger speedy trial concerns. That is cor-
rect under the plain text of the Speedy Trial Act, see 18 U.S.C. § 3161(b)
& (c), but that is all that Clark decided. See 754 F.3d at 405–07. Clark did
not address the Sixth Amendment at all, so its analysis cannot help the
majority on this point. Despite their common purposes, the constitution-
al and statutory standards differ as to important details, and we have
recognized that either provision may be violated without violating the
other. E.g., United States v. Loera, 565 F.3d 406, 412 (7th Cir. 2009).
No. 14-1901                                                 21

clash” between the state and federal governments “with no
likely benefit to the defendant.” These concerns are real but
do not justify the sweeping rule adopted by the majority.
They are better managed under the framework of the Barker
factors.
    Consider the possible benefit to the defendant. Surely an
innocent defendant faces the greatest risk of prejudice by de-
lay. Evidence of his innocence may disappear or erode as
memories fade, records are lost, or witnesses move away.
The majority recognizes the inverse proposition: “For if the
defendant is guilty there are likely to be more witnesses help-
ful to the government’s case than to the defendant’s. … And
so on average the death, disappearance, forgetfulness, or re-
cantation of a witness will favor the defendant and thus put
him on the slow side of the case.” Slip op. at 10 (emphasis
added). That’s probably right, but if the accused is innocent,
the effects of delay are likely to be exactly the opposite, un-
dermining the ability of the accused to defend himself. Pro-
tecting innocent defendants from such unfairness is a core
purpose of the Sixth Amendment speedy trial right. E.g.,
United States v. Ewell, 383 U.S. 116, 120 (1966).
    The majority’s concern about a “messy clash” of govern-
ments is legitimate but exaggerated. It does not justify the
majority’s broad rule. Concerns about bureaucratic friction
certainly should not trump the right of the accused (who is
presumed innocent) to push for prompt resolution of the
charge or other official accusation against him. Where a de-
fendant faces both state and federal charges, state and feder-
al prosecutors already must confer and agree on how to pro-
ceed. That happens all the time; they typically know each
other well.
22                                                    No. 14-1901

    If a defendant insists, as I think he should be able to after
official accusations by each government, on speedy trials in
both cases, the coordination of scheduling is no more diffi-
cult a task than state and federal courts accomplish routinely.
That happens when there are cases involving the same party,
the same witness, or even the same lawyer. And if the ac-
cused is in custody, only minimal paperwork is needed to
shift custody as needed between the two governments from
time to time.
    To support its concerns about the “messy clash” between
state and federal prosecutions, the majority draws heavily
from the Sixth Circuit’s opinion in United States v. Schreane,
331 F.3d 548, 554–56 (6th Cir. 2003), but Schreane actually
supports the approach I would adopt. In Schreane the Sixth
Amendment speedy trial right had been triggered by the de-
fendant’s federal indictment. His federal prosecution was
put on hold while a state prosecution went forward to con-
viction and sentencing. The Sixth Circuit discussed the rea-
sons for the delay, which were obviously legitimate, but it did
so in the context of applying the Barker factors that I argue should
be applied here. The same is true of the majority’s other cases,
United States v. Watford, 468 F.3d 891, 900–03 (6th Cir. 2006),
and United States v. Grimmond, 137 F.3d 823, 827–29 (4th Cir.
1998).
   In Schreane the Sixth Circuit did not suggest, much less
hold, that the speedy trial right should never attach because
of concerns about possible federal-state interference. In
Schreane the defendant made no effort to push for an earlier
federal trial while his state case was pending, 331 F.3d at 557,
No. 14-1901                                                                23

so under the approach I advocate, a defendant like Schreane
would also lose. 4
    If, on the other hand, a defendant insists on speedy trials
in both state and federal cases, and if there is actually a good
reason for one prosecution to wait for the other to finish in
the particular case, the Barker framework will accommodate
this concern, as in Schreane and Thomas. See United States v.
Thomas, 55 F.3d at 150–51 (federal prosecutors reasonably
delayed the federal prosecution to decrease safety risks and
administrative costs, which favored finding no violation of
defendant’s constitutional speedy trial right under Barker
reason-for-delay factor).
    The majority virtually concedes the risk posed by its ap-
proach, acknowledging the “potential for prejudice to a de-
fendant caught between two sovereigns,” and describing a
scenario where three years lapse between the filing of a fed-
eral complaint, affidavit of probable cause, and detainer and
the federal indictment. The majority also recognizes that this
situation might seriously prejudice the defense. Under its
approach, though, the speedy trial guarantee would not of-
fer any protection at all to a defendant caught in this snare.
The majority suggests a potential solution: the defendant
could bring a due process challenge instead.




    4 One odd feature of Schreane was that the defendant apparently did
not learn of his federal indictment until after he had been sentenced in
state court and moved to a state prison. 331 F.3d at 557. If he had known
earlier and had still failed to seek a speedy federal trial, the Sixth Circuit
said that the third Barker factor would “weigh heavily against him.” Id.
That is Richardson’s situation, as I view this case.
24                                                       No. 14-1901

    But why force a square peg into a round hole? After an
“official accusation,” the speedy trial right should apply. The
speedy trial cases and the Barker factors offer a framework
that is tailor-made to address the issues that can arise. The
due process approach does not. In fact, it’s telling that none
of the cases cited by the majority have actually found a due
process violation on such facts. See United States v. Lovasco,
431 U.S. 783, 796 (1977) (“We therefore hold that to prosecute
a defendant following investigative delay does not deprive
him of due process, even if his defense might have been some-
what prejudiced by the lapse of time.”) (emphasis added); United
States v. Zukowski, 851 F.2d 174, 178 (7th Cir. 1988) (suggest-
ing that due process is more appropriate challenge but find-
ing no due process violation because pre-indictment delay
did not prejudice defendant); United States v. Samples, 713
F.2d 298, 302 (7th Cir. 1983) (no due process violation where
defendant challenged twenty-month delay between dismis-
sal of first indictment and re-indictment). The majority em-
phasizes Pharm v. Hatcher, 984 F.2d 783 (7th Cir. 1993), as
support for this potential solution, but Pharm stated flatly:
“The Due Process Clause … plays only a limited role in pro-
tecting against oppressive prosecutorial delay. In fact, we
have never found pre-accusation delay rising to the level of a
constitutional violation.” Id. at 786 (citation omitted). On
closer inspection, the due process cases do not offer much of
a solution to these concerns. 5

     5The strongest support for the majority’s approach seems to come
from United States v. Zukowski, 851 F.2d 174 (7th Cir. 1988), where the
defendant was in federal prison on tax charges. He escaped but was ar-
rested a few weeks later and transferred back to federal prison. He was
indicted about twenty months later on an escape charge. Zukowski ar-
gued that his Sixth Amendment speedy trial right was violated by the
No. 14-1901                                                            25

    The better solution is to recognize that a federal com-
plaint and arrest warrant filed under Federal Rules of Crim-
inal Procedure 3 and 4 add up to an “official accusation” of a
crime that starts the Sixth Amendment speedy trial clock, at
least where the suspect is in state custody and subject to a
federal detainer. Richardson has not established a violation
of his speedy trial right, but we should not foreclose the pos-
sibility that another defendant could.




delay between his arrest after the escape and his indictment for the es-
cape. We rejected that argument, holding that Zukowski’s Sixth
Amendment right to a speedy trial “did not attach until he was indicted
for the escape charge.” Id. at 178.
     Zukowski is factually distinguishable. There, neither a criminal com-
plaint nor an arrest warrant had been filed in connection with the escape.
Id. at 176. In fact, the only document that had been issued was a “Notice
of Escaped Prisoner,” which had “no legal effect.” Id. at 177. We noted
that this document was “informational only” and did not “purport to
order or authorize an arrest of the subject.” Id. Unlike here, there had
been no official accusation. And if we were to ignore this important fac-
tual difference, it would be difficult to reconcile Zukowski with the Su-
preme Court’s reasoning in Smith, 393 U.S. at 378–80, and the “official
accusation” language in MacDonald, Marion, and Doggett.
