                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-4045

U NITED S TATES OF A MERICA,
                                                 Plaintiff-Appellee,
                                 v.

V IRGIL S MITH,
                                              Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, Fort Wayne Division.
                No. 06 CR 53—William C. Lee, Judge.



    A RGUED F EBRUARY 9, 2009—D ECIDED A UGUST 11, 2009




 Before P OSNER and S YKES, Circuit Judges, and D OW,
District Judge.
  D OW, District Judge. On December 9, 2002, Virgil Smith
and four other individuals took part in a bank robbery
in Fort Wayne, Indiana. Smith ultimately was convicted




  The Honorable Robert M. Dow, Jr., of the United States
District Court for the Northern District of Illinois, sitting by
designation.
2                                              No. 07-4045

on two counts: (i) armed bank robbery in violation of 18
U.S.C. §§ 2113(a), (d), and aiding and abetting that same
bank robbery in violation of 18 U.S.C. § 2; and (ii) using
a firearm during and in relation to a crime of violence in
violation of 18 U.S.C. § 924(c), and aiding and abetting
the use of a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 2. Smith received a
sentence of 100 months’ imprisonment on the first count
and seven years on the second, to be served consecutively
for a total of 184 months’ imprisonment. Smith raises two
arguments on appeal. First, he contends that there was
insufficient evidence to support a conviction on the
second count of the indictment. Second, he asserts that the
district court should have dismissed his original indict-
ment with prejudice under the Speedy Trial Act. Because
we are not convinced by either argument, we affirm.


                     I. Background
  Virgil Smith, Melvin Woods, Jernard Freeman, DeMarcus
White, and Rasheen Childs were involved in the robbery
of a Bank One branch in Fort Wayne, Indiana. Smith
admitted that he aided in the robbery, thus conceding
guilt on Count One of the indictment. The factual matters
at issue in this appeal concern the predicate for the
finding of guilt on Count Two. In particular, we must
focus on the testimony regarding the role that Smith
played in the pre-crime preparations and whether he
provided the weapon that ultimately was carried into
the bank during the robbery.
  The testimony against Smith provided by the other
participants in the robbery was not entirely consistent
No. 07-4045                                              3

in several respects. In regard to the origin of the plan,
Woods testified that Smith came to him with the idea
of robbing a bank two months before the robbery actually
took place; Freeman testified that he and Smith had
their first conversation regarding the robbery a couple of
weeks before it took place; White testified that he was not
brought into the plan until early December 2002. For his
part, Smith testified that he was in Los Angeles County
Jail until November 4 or 5, 2002 and did not arrive in
Fort Wayne until shortly before Thanksgiving. Smith
further testified that Freeman and White approached
him on November 30 or December 1, 2002 about robbing
a bank and they asked him for a gun.
  A critical area of testimony concerned the origin of the
.45 caliber weapon that was used during the robbery.
According to all three government witnesses, not only
was it Smith’s idea to use a gun during the robbery, but
he volunteered to provide one. In fact, all three testified
that, prior to the robbery, they saw Smith with the .45
pistol that Childs carried into the bank during the rob-
bery. Freeman also testified that he saw Smith with a
second gun, a .44 caliber Desert Eagle that remained in
the trunk of one of the getaway cars during the robbery.
Smith testified that he provided only the Desert Eagle
and that he knew that it did not work. One of the
defense witnesses, Ravonda Weatherspoon, testified that
Freeman took a .45 from the house at which she was
staying in March or April of 2002, although she did not
know the make or model. Another defense witness, Donya
Brown, testified that the night before the robbery she
kicked Freeman out of her house where the five robbers
4                                                 No. 07-4045

were meeting because he had a .45 and she had a “no guns
in the house” rule.
  Another testimonial matter of significance was the
location of the .45 on the day of the robbery. Woods
testified that Smith and Freeman picked him up in Free-
man’s car (the “dark Cutlass”), at which point Woods
claims he was informed that the guns were in the
trunk. Freeman, however, testified that he picked up
Woods before picking up Smith. Freeman also testified
that Smith put both the .45 and Desert Eagle in the trunk
of Freeman’s car. 1 Woods stated that they proceeded to
White’s apartment, at which time Smith and Freeman
left in the dark Cutlass. Freeman recalled that Smith left
by himself and returned with his girlfriend’s car (the
“white Sunfire”) and Childs.2 According to Woods, when
Smith and Freeman returned, Childs was present and each
of the three men was driving a car: Freeman, the dark
Cutlass; Smith, the white Sunfire; and Childs, a stolen
blue car. White testified that the four men gathered at
his apartment, but Childs and Smith then left in the
white Sunfire and returned with the stolen blue car. At that
point, White said that he saw Smith with a .45 with



1
  According to Freeman’s testimony at Smith’s first trial,
Smith told Freeman to put the guns in the trunk of Freeman’s
car.
2
  Freeman’s testimony is unique in regard to the acquisition of
the stolen blue car. Unlike the other witnesses, Freeman
testified they did not pick that car up until after the failed
attempt to rob a bank on the south side of town.
No. 07-4045                                               5

an extended magazine. Smith likewise testified that the
men met at White’s apartment the morning of the robbery.
He also recalled going to White’s apartment with Childs,
but in separate cars—Childs in the stolen blue car and
Smith in the white Sunfire. A defense witness, Devon
Hood, stated that Woods and Freeman picked him up
that morning and they smoked marijuana in Freeman’s
car where he observed a black pistol.
  The group left White’s apartment with the intention of
robbing a bank on the south side of Ft. Wayne, but aban-
doned that plan when they observed that a police car
was present. Woods and White testified that they then
proceeded to the north side of the city where they met up
in a ball field near the bank.3 The testimony differs as
to who was present in which car while they looked for a
bank to rob. Yet, all of the witnesses agreed that before
they proceeded to the bank, they last stopped at the ball
field to finalize their plans. Woods stated that, once they
had gathered at the ball field, Smith informed the others
that he would wait outside the bank and watch for police
and told Childs to get the .45 from the trunk of the dark
Cutlass.4 White testified that Smith handed the .45 to
Childs in the Sunfire. Freeman testified that before they
entered the bank, Childs opened the trunk of the dark



3
  In the first trial, Woods mentioned a second bank that the
group almost robbed prior to the eventual robbery of the
Bank One branch on the north side of Ft. Wayne.
4
 At the first trial, Woods said that Smith handed the gun to
Childs.
6                                              No. 07-4045

Cutlass and procured the .45 handgun. Smith testified
that although he gave Freeman the Desert Eagle on the
morning of the robbery, he never put the Desert Eagle in
the trunk of the Cutlass and he never gave Freeman the .45.
According to Smith, Childs retrieved the .45 from the
Cutlass, and Smith did not know that Childs had used a
gun until after the robbery.
  While the robbery took place, Freeman was in the
Cutlass and Smith was in the Sunfire, both outside of the
bank. Childs, White and Woods entered the bank. While
Childs stood by the door and brandished the .45 pistol,
White and Woods jumped over the counter and seized
the money. The three then left the scene in the stolen car.
The five individuals, in the three cars, proceeded back to
the ball fields where they had met up before the robbery
and ditched the stolen car. At that point, Childs and
Smith were in the car with the money and the .45 used in
the robbery. Woods, White and Freeman were in the dark
Cutlass. As the two cars were exiting the area, a police
officer pulled Freeman’s car over and all three were
arrested. Smith and Childs were able to leave the scene.
Although Smith later was arrested, Childs was never
apprehended and neither the .45 nor the money ever
was recovered. Woods, Freeman, and White pleaded
guilty and agreed to testify at Smith’s trial.


                 II. Procedural History
  Smith was charged in 2003 for his role in the robbery. In
the original action, case number 03-CR-6, Smith filed a
motion seeking to plead guilty on July 22, 2003, which
No. 07-4045                                             7

was denied on November 17, 2003. He then filed a
motion to dismiss all charges against him, arguing that
his right to a speedy trial had been violated. The court
denied that motion on December 10, 2003, on the ground
that Smith had suffered no prejudice by the delay. The
matter proceeded to trial on December 17, 2003. Woods,
Freeman, White, Ravonda Weatherspoon, and Donya
Brown testified. Smith was convicted on the same two
counts that form the basis of the present appeal and
sentenced to a term of imprisonment of 221 months.
  Smith filed his notice of appeal on March 24, 2004,
arguing that his rights under the Speedy Trial Act (“the
Act”) had been violated. This Court held that any viola-
tion of the Act was harmless. See United States v. Smith,
415 F.3d 682, 686 (7th Cir. 2005). A limited remand to
the district court followed, but this Court ultimately
affirmed Smith’s conviction. See United States v. Smith,
182 Fed. Appx. 586 (7th Cir. 2006). Smith then filed a
petition for writ of certiorari. The Supreme Court granted
Smith’s petition, vacated this Court’s judgment, and
remanded the matter for proceedings in light of Zedner v.
United States, 547 U.S. 489, 508-509 (2006), in which the
Court held that harmless error is not an appropriate
standard of review in the Speedy Trial Act context. This
Court then reversed Smith’s conviction, vacated his
sentence, and remanded the case to the district court with
instructions to determine whether the indictment should
be dismissed with or without prejudice pursuant to
18 U.S.C. § 3162(a)(2).
 On remand, after reviewing the parties’ written sub-
missions, the district court issued a five-page order dis-
8                                              No. 07-4045

missing the indictment without prejudice on October 3,
2006. The government filed a new criminal complaint
against Smith on the same day. He was indicted on
October 25, 2006, and proceeded to a bench trial that
commenced on September 27, 2007.
   On October 3, 2007, the district court issued an oral
ruling. As the court noted, Smith conceded his guilt on
Count One. As to Count Two, the court noted two
viable theories of the case, each relating to one of the
guns at issue in the case. The court found Smith not
guilty under the “Desert Eagle” theory, essentially finding
that because the evidence showed that the “Desert Eagle”
gun was kept in the trunk of the car during the robbery,
it was not used in the offense and could not support a
conviction on Count Two. However, the court concluded
that the “other gun theory”—referring to the .45 that
was carried into the bank—did support a guilty determina-
tion on Count Two. The court acknowledged various
conflicts in the testimony and remarked that its decision
rested on a “credibility determination.” The court found
the three co-defendants’ testimony to be credible and
Smith’s testimony “not credible.” The court further
found beyond a reasonable doubt that Smith was a
leader and organizer and an aider and abettor as to the
crime of using the .45 caliber gun during the robbery. And
on the basis of the testimony and the court’s findings,
the court entered a finding of guilty on Count Two.


                      III. Analysis
  Smith presents two arguments on appeal: (i) there was
insufficient credible evidence to support a guilty verdict
No. 07-4045                                                9

on Count Two and (ii) the district court should have
dismissed the original indictment with prejudice under
the Speedy Trial Act. We address each in turn.


  A. Sufficiency of the Evidence
  Smith first challenges the sufficiency of the evidence
adduced at trial in support of the trial court’s decision to
convict him on Count Two. According to Smith, the
prosecution witnesses lacked credibility and the district
court improperly rejected testimony that supported an
alternative source of the gun that was used in the robbery.
  As an initial matter, we note that Smith faces a steep
uphill climb with a sufficiency of the evidence argument
on appeal. See, e.g., United States v. Hicks, 368 F.3d 801,
804 (7th Cir. 2004) (describing the standard of review
facing the defendants on sufficiency of the evidence
argument as “a daunting one”); United States v. Gardner,
238 F.3d 878, 879 (7th Cir. 2001) (“In attacking the suffi-
ciency of the evidence, a defendant bears a heavy bur-
den”). That heavy burden reflects the deference given to
the trier of fact: to obtain a reversal, the defendant must
convince the reviewing court that “after viewing the
evidence in the light most favorable to the prosecution,
[no] rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.”
United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This
Court’s task therefore is not to “weigh the evidence” or to
“second-guess” the trier of fact. Gardner, 238 F.3d at 879.
And we will overturn a conviction based on insufficient
10                                               No. 07-4045

evidence only if the record is “devoid of evidence” from
which the trier of fact—here, the trial judge—could have
found guilt beyond a reasonable doubt. Curtis, 324 F.3d at
505 (citing United States v. Menting, 166 F.3d 923, 928 (7th
Cir. 1999)).
  Smith admits that he participated in the robbery and that
he provided the Desert Eagle gun that was left in the
trunk of the Cutlass during the robbery. The question is
whether there was sufficient evidence that Smith aided
and abetted the use of the .45 that was brought into the
bank. As we previously have explained,
     A defendant may be liable for aiding and abetting the
     use of a firearm in violation of § 924(c) if the govern-
     ment proves that the defendant knowingly and inten-
     tionally assisted the principal’s use or possession of a
     firearm during the violent felony or drug trafficking
     offense. The defendant must know, either before or
     during the crime, that the principal will possess or
     use a firearm, and then after acquiring knowledge
     intentionally facilitate the weapon’s possession or
     use. Merely aiding the underlying crime and knowing
     that a gun would be used or carried cannot support
     a conviction under 18 U.S.C. § 924(c), because the
     defendant must aid and abet the possession, or carry-
     ing, or use of the weapon.
United States v. Daniels, 370 F.3d 689, 691 (7th Cir. 2004)
(citations and quotations omitted). In finding Smith guilty
of aiding and abetting, the district court stated that its
disposition boiled down to credibility determinations.
As the district court saw it, Smith’s case turned on
No. 07-4045                                                 11

whether to believe Smith or the three witnesses for the
prosecution who testified that it was Smith’s idea to
use the gun and that he procured it. And the court
sided with the prosecution witnesses, as was its preroga-
tive after hearing the testimony and observing the wit-
nesses.
  Smith recognizes that the heavy burden that attends a
sufficiency of the evidence challenge is compounded
when such a challenge rests in large measure on taking
issue with the trier of fact’s credibility determinations.
As this Court has explained, we do not “second-guess the
trial judge’s credibility determinations.” United States v.
French, 291 F.3d 945, 951 (7th Cir. 2002). The reasons
for this deference are many: the trial judge “has had the
best opportunity to observe the verbal and nonverbal
behavior of the witnesses focusing on the subject’s reac-
tions and responses to the interrogatories, their facial
expressions, attitudes, tone of voice, eye contact, posture
and body movements, as well as confused or nervous
speech patterns in contrast with merely looking at the
cold pages of an appellate record.” Id. In short, a
reviewing court will set aside credibility determinations
only if they are clearly erroneous, which occurs “only if
the district court has ‘chosen to credit exceedingly improb-
able testimony.’ ” United States v. Robinson, 314 F.3d 905,
907 (7th Cir. 2003); see also United States v. Briggs, 273 F.3d
737, 740 (7th Cir. 2001) (explaining that a district court’s
decision to credit one witness over another “can almost
never be clear error”). And testimony will be found
exceedingly improbable only if it is “internally incon-
sistent” or “implausible on its face.” See United States v.
Cardona-Rivera, 904 F.2d 1149, 1152 (7th Cir. 1990).
12                                               No. 07-4045

  Smith submits that the district court overlooked numer-
ous inconsistencies in the testimony of the prosecution
witnesses and improperly discounted Smith’s credibility
on irrelevant factors. We recognize, as did the district
court, that the testimony of the participants in the
robbery was not consistent in every respect. Smith
focuses on inconsistencies in the testimony concerning
the events that took place at the ball field before the
group proceeded to the bank—and, in particular, how the
gun got into Childs’ hands. Woods stated at the second
trial that Smith told Childs to get the .45 out of the trunk
of Freeman’s car, which he did. That testimony is fairly
consistent with Freeman’s testimony that Childs got the
gun from Freeman’s trunk. However, Woods was im-
peached with his testimony from the first trial, during
which he stated that Smith handed the gun to Childs.
In addition, White testified that Smith handed the gun
to Childs while Smith was sitting in the Sunfire.
  While that testimony does present some factual dis-
crepancies, it is neither internally inconsistent nor implau-
sible. See United States v. Woods, 148 F.3d 843, 847 (7th Cir.
1998) (noting that eighteen months had passed since
the robbery and that it was to be expected that
witnesses would have slightly different recollections of
events as they unfolded). In addition, and more im-
portant, the testimony on which Smith focuses does not
go to the critical issue of who provided the gun or the
idea to use the gun. It was the prosecution’s conten-
tion—which the trial court accepted—that Smith pro-
vided the .45. It does not matter whether, as the final
preparations for the robbery unfolded, Childs was handed
No. 07-4045                                              13

the gun or retrieved it from the trunk. As the trial court
saw the events, without Smith, the .45 would not have
been at the ball field at all, because all three prosecution
witnesses testified that they saw Smith with the .45 prior
to the robbery, Freeman testified that Smith in fact put
the .45 in the trunk of the Cutlass on the day of the rob-
bery, and Woods testified that Smith instructed Childs to
retrieve the .45 from Freeman’s trunk. 5 All of that testi-
mony, which the trial judge was free to credit, amply
supports the judge’s decision.
  We also cannot find fault with the district court’s
finding that Smith lacked credibility. In reaching that
conclusion, the court noted (i) Smith’s demeanor in his
videotaped interrogation, (ii) his suggestion that the
group proceed to the Bank One after encountering a
police presence at another bank, and (iii) the fact that
Smith ended up with the money despite his efforts to
convince the court that he was a minor participant. We
respectfully disagree with Smith’s contention that the
latter two factors have no plausible connection to a
proper credibility determination. It appears from the
record that the district judge felt that that those factors
reflected poorly on Smith’s credibility because they
made less believable his explanation that although he
was in fact involved in the robbery, he was a minor
player, merely along for the ride.


5
  Defense counsel’s impeachment of Freeman merely indicates
that Smith instructed Freeman to put the guns in the
trunk—testimony that also would support a guilty verdict for
aiding and abetting.
14                                              No. 07-4045

  Likewise, we see no error in the district court’s decision
not to credit Smith’s argument concerning an “alternate
source” of the .45. Weaving together the testimony of the
defense witnesses, Smith contends that there was
evidence that Freeman took the .45 from Weatherspoon’s
house and had it in his possession the night before the
robbery and again the morning of the robbery. The
district court commented on that evidence and noted
that the testimony did not “really go[ ] to the heart of
the—co-defendant’s testimony.” According to Smith, that
was not a rational basis for discounting the allegedly
exculpatory evidence. We disagree. There was no testi-
mony as to the make or model of the .45 that Freeman
allegedly took eight months before the robbery, and
therefore there is no support for the position that the .45
that was in Freeman’s possession months earlier must
have been the same .45 that was taken into the bank. In
addition, Freeman denied that he ever stole the .45, which
the trial court could have accepted. In any event, even
assuming that the testimony to which Smith points per-
tained to the same gun, it merely shows that someone
other than Smith was holding it the day before and the
morning of the robbery. The trial court thus was correct
in observing that Smith’s alternative source theory
does not “go to the heart” of the case against Smith—
namely, the co-defendants’ testimony that it was Smith’s
idea to use the .45 and that he procured it for the robbery.
  In sum, three witnesses identified Smith as the
individual who presented the idea to use the gun and then
provided the .45 that was used in the robbery. Smith’s
counsel cross-examined the witnesses and pointed out
some discrepancies in their testimony, though none was
No. 07-4045                                                 15

fatal, either individually or collectively. The district court
also heard from and observed Smith. At the end of the
case, the court chose to credit the testimony of Woods,
Freeman, and White over the testimony of Smith, which
was the court’s prerogative. The decision to credit the
plausible testimony of one witness over the plausible
testimony of another “can almost never be clear error.”
United States v. Briggs, 273 F.3d 737, 740 (7th Cir. 2001). And
the facts of this case do not present one of the rare in-
stances of clear error, for there was nothing “exceedingly
improbable” about the testimony of the prosecution
witnesses.


  B. Speedy Trial Act
  Smith also challenges the district court’s decision to
dismiss the first indictment without prejudice, instead of
with prejudice. As noted above, that issue came before
the district court after the Supreme Court vacated this
Court’s judgment on Smith’s original conviction. We
then vacated his sentence and remanded the case to the
district court. On remand, the district court took briefing
from the parties and issued a five-page written order
in which it concluded that the indictment should be
dismissed without prejudice pursuant to 18 U.S.C.
§ 3162(a)(2). We review that decision for abuse of discre-
tion. See United States v. Taylor, 487 U.S. 326, 335 (1988);
United States v. Killingsworth, 507 F.3d 1087, 1090 (7th Cir.
2007).
  Under the pertinent statutory and decisional law, the
district court was required to consider the following
16                                               No. 07-4045

factors in making its determination: (i) the seriousness
of the offense; (ii) the facts and circumstances which led
to the dismissal; and (iii) the impact of reprosecution on
the administration of the Speedy Trial Act and on the
administration of justice. See 18 U.S.C. § 3162(a)(2);
Taylor, 487 U.S. at 333. “[A] district court must care-
fully consider those factors as applied to the particular
case and, whatever its decision, clearly articulate their
effect in order to permit meaningful appellate review.” Id.
at 336. Because the district court’s task involves
applying law to facts, this Court must “undertake more
substantive scrutiny to ensure that the judgment is sup-
ported in terms of the factors identified in the statute.” Id.
at 337. “Nevertheless, when the statutory factors are
properly considered, and supporting factual findings
are not clearly in error, the district court’s judgment of
how opposing considerations balance should not be
lightly disturbed.” Id.
  Smith does not contend, nor could he in good faith,
that the district court failed to properly consider and
articulate its findings on the first two factors. Smith
concedes, as he did at the district court level, that armed
bank robbery is a serious offense. The district court con-
curred, noting that the seriousness of the crime was “self-
evident.” The district court also agreed with Smith on
the second factor, finding that the violation of the Act was
not the result of bad faith on the part of the government.
The time allotted under the Act simply “ran out inadver-
tently.” The court noted that the defendant’s silence
underscored the unwitting nature of the delay and subse-
quent violation. For those reasons, the district court
No. 07-4045                                               17

concluded that “dismissal with prejudice would not
serve any purpose of encouraging the government to
avoid neglect or bad faith in the prosecution of its cases.”
  Smith’s argument for reversal thus necessarily focuses
on the third factor. He maintains that the district court
failed to consider the impact of reprosecution on the
administration of the Speedy Trial Act and on the ad-
ministration of justice. Smith’s argument is predicated on
a fairly novel theory—that when a Speedy Trial Act
violation is resolved in a defendant’s favor after a lengthy
appeals process, the district court’s analysis of the third
factor should encompass the time spent on appeal, not
just the length of the period triggering the underlying
violation.
   In fact, the district court did consider both periods, but
it accorded less weight to the appellate delay than to the
initial delay in the trial court. It determined that although
the four year duration of the appeals process affected the
administration of justice—and thus could not be dis-
counted altogether—that period was less significant in
the calculus (and thus entitled to less weight) than the
excessive delay that led to the Speedy Trial Act violation
in the first place. That bifurcated approach was premised
on the court’s belief that Section 3162(a)(2) is concerned
primarily with the seventy day period set forth in the
statutory text. We conclude that the district court’s
relative weighting was reasonable and do not detect in
the statute or case law any mandate to give equal or
more weight to appellate delays as compared to trial
delays. Indeed, although the Supreme Court did not
18                                              No. 07-4045

explicitly address the issue, the district court was on
solid ground in reading Taylor as at least implicitly sup-
porting the view that the Section 3162(a)(2) analysis
should focus more on the delay giving rise to the viola-
tion in the trial court than on the length of time spent in
the appellate process. See Taylor, 487 U.S. at 336.
  Using the framework described above, the district court
concluded that the impact of the Speedy Trial Act
violation of between six and thirty days was minimal and
that Smith had failed to establish that he had been preju-
diced by that delay. Smith does not contest that finding.
The court then turned to the period of time spent in
appeals. Smith’s contention that the district court under-
valued the impact of this delay—and in fact should have
found it to be presumptively prejudicial—relies principally
on Doggett v. United States, 505 U.S. 647 (1992). That case
involved an eight and a half year delay between indict-
ment and arrest, which led to concerns about the fairness
of adjudication, including diminished memories and loss
of potentially exculpatory evidence. Id. at 654. But
Smith’s reliance on Doggett is misplaced for several rea-
sons.
  Most importantly, there had been no trial in Doggett
to memorialize testimony. By contrast, Smith had such
a trial. As a result, the district court observed that
     [t]he evidence and the witnesses’ testimony has been
     preserved by virtue of the earlier trial, so that there
     is no reason to believe that a new trial would be
     compromised. In any event, it is the government that
     has the most to lose by the delay: “prosecutor bears
     a heavy burden of persuasion, and the degradation
No. 07-4045                                               19

    of evidence generally cuts against the party with
    the burden.”
The concern expressed in Doggett that “excessive delay pre-
sumptively compromises the reliability of a trial in
ways that neither party can prove, or for that matter,
identify” (id. at 655) thus applies with far less force
when a defendant has a previous trial record with which
to work.
  Smith nevertheless maintains that the impact of the
appellate delay was not slight and that it was used as an
excuse to present inconsistent evidence. That argument
fails to persuade because, as the district court noted, any
prior inconsistent testimony could be used for impeach-
ment purposes in the second trial. That is precisely what
occurred. Defense counsel impeached the prosecution
witnesses whenever they strayed from their original
testimony.
  Doggett also is factually distinguishable because the
delay in that case was nearly twice as long as the four
years that Smith’s case was on appeal. We accept
Smith’s point that a delay of four and a half years may be
prejudicial in certain situations. Under Taylor, these
matters can be considered only on a case-by-case basis.
But we are not persuaded that this case presents one of
those situations. Acknowledging that his delay was half
that endured by the defendant in Doggett, Smith cites a
case in which the court found that a ten month delay in
ruling on a motion to suppress constituted delay. See
United States v. Moss, 217 F.3d 426 (6th Cir. 2000). Notably,
and fatally to Plaintiff’s argument, Moss focused on the
20                                              No. 07-4045

effect of the delay triggering the underlying Speedy Trial
Act violation. The better comparison here is the time
period of between six and thirty days that gave rise to
the Speedy Trial Act violation, not the four years that
it took for the appellate process to run its course.
  We have stated before that an “open-ended list” of the
sort drawn up by Congress in Section 3162 “imbues a court
with great discretion.” United States v. Fountain, 840
F.2d 509, 512 (7th Cir. 1988). In exercising that discretion,
the district court did not “ignore[ ] or slight[ ] a factor
that Congress has deemed pertinent.” Taylor, 487 U.S. at
337. To the contrary, the court carefully considered each
factor in light of the arguments of the parties and ex-
plained the rationale for its determination that the
factors weighed strongly in favor of dismissing the indict-
ment without prejudice. Seeing no clearly erroneous
factual findings and no abuse of discretion in the
court’s final decision, we will affirm.


                     IV. Conclusion
  Because we are not persuaded that the evidence pre-
sented at trial was insufficient to sustain Smith’s convic-
tion on Count II or that the district court abused its dis-
cretion in dismissing the original indictment of Smith
without prejudice, the judgment of the district court is
                                                  A FFIRMED.

                           8-11-09
