                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 07-1684
UNITED STATES OF AMERICA,
                                         Plaintiff-Appellant,
                              v.

ABRAHAM E. KILLINGSWORTH,
                                         Defendant-Appellee.
                       ____________
          Appeal from the United States District Court
               for the Southern District of Illinois.
         No. 06 CR 30140—G. Patrick Murphy, Judge.
                       ____________
ARGUED SEPTEMBER 5, 2007—DECIDED NOVEMBER 13, 2007
                   ____________


 Before EASTERBROOK, Chief Judge, and WOOD and
EVANS, Circuit Judges.
  EVANS, Circuit Judge. The district court granted
Abraham Killingsworth’s motion to dismiss an indict-
ment against him with prejudice because his rights
under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., were
violated. The government conceded the violation but
argued that the dismissal should be without prejudice. The
court sided with Killingsworth and entered the dismissal
order with prejudice. Today we resolve the government’s
appeal of that decision.
  Although the “facts” in this case have yet to be tested
at trial, the government claims that the following events
form the basis of charges it filed against Killingsworth.
2                                               No. 07-1684

  On September 25, 2006, Killingsworth met with a fellow
named Ball, hoping to buy two ounces of cocaine. After
entering Ball’s vehicle to complete the transaction,
Killingsworth realized that Ball had more cocaine with
him than Killingsworth was expecting to purchase.
Killingsworth seized this opportunity and decided to rob
Ball by displaying a chrome .38 caliber revolver and taking
the package of cocaine from Ball. Killingsworth then left
Ball’s vehicle and got into another vehicle, driven by an
unnamed individual. Ball proceeded to flag down two
Venice, Illinois, police officers who were on routine
patrol in the area. Ball told the officers that he had just
been robbed and pointed to the vehicle that Killingsworth
had entered. The police started to follow the car, but
Killingsworth got out of it and started to flee on foot. While
running, he dropped the package of cocaine and the gun,
both of which the officers retrieved after apprehending
him.
  The federal government, acting through the DEA, got
involved in the case, and a criminal complaint was filed
in the Southern District of Illinois on September 27, 2006,
charging Killingsworth with one count of possession with
intent to distribute over 500 grams of cocaine in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and one count of
possession of a firearm in furtherance of a drug-trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A). Killingsworth
appeared before Magistrate Judge Proud on September 28,
2006, and entered a plea of not guilty. Killingsworth
later waived his rights to preliminary and detention
hearings on October 2, 2006, in an appearance before
Magistrate Judge Wilkerson. On October 19, 2006, a grand
jury indicted Killingsworth on the two counts charged in
the complaint. A third count seeking to forfeit the fire-
arm involved in the offense was added on. In mid-October,
Killingsworth apparently agreed to cooperate with the
government. He signed a proffer agreement on October 26,
No. 07-1684                                                    3

2006. On November 1, 2006, the government forwarded
discovery materials to Killingsworth’s counsel.
  Obvious from this chronology—and for reasons still
unclear to us—an arraignment on the indictment was
never scheduled. As a result, Killingsworth did not re-
ceive a trial within the time period required by the
Speedy Trial Act. On January 4, 2007 (by the govern-
ment’s count,1 3 days after the speedy trial clock had
run), Killingsworth filed a motion to dismiss the indict-
ment with prejudice.2 The government, as we said, con-
ceded that the Speedy Trial Act was violated but asked
for dismissal without prejudice.
  The district court held a hearing on the motion to
dismiss. During the hearing, the government offered two
explanations for the violation. First, it stated that, histori-
cally, it had never had to request an arraignment in a
criminal case when an individual had been indicted, even
when a complaint had been filed first; the magistrate
judge had always provided a date. Second, the govern-
ment claimed that it had contacted the magistrate
judge’s chambers at least twice within the speedy trial
time to inquire about an arraignment but had received
no reply.


1
  The government bases its calculations on an exclusion of
3 days from October 20 to 23 while a motion was pending.
Whether the period of delay was 3 or 6 days is immaterial to
our discussion.
2
   Once a motion like this is filed, the speedy trial clock stops
ticking. Therefore, any time that passes before the motion is
resolved is excluded. But that said, we find it disturbing that
the hearing on the motion—a rather simple one, we think—was
not conducted until February 26, 2007, a full 54 days after it
was filed. We hope the judges—district and magistrate—in the
Southern District of Illinois will take preventive action so this
sort of delay doesn’t repeat itself in other cases.
4                                                No. 07-1684

  In response, the district judge tried to determine exactly
what happened by taking a recess to speak to the magis-
trate judge and his clerk. When the judge returned, he
informed the parties that the clerk did not recall any
messages from the government and that “there is no way
really to go behind that and find out what happened.”
  The judge then turned to the issue of whether to dismiss
the indictment with or without prejudice. He noted that
the case was a serious one and that if he dismissed it
with prejudice, Killingsworth might walk away without
punishment if the state did not bring charges.3 He also
stated that it was impossible to find out whether the
court or the government was at fault for the violation.
Ultimately, the court sided with Killingsworth, emphasiz-
ing that “whether the fault lies with the judicial side of
the matter or whether it involves the fault of the prosecu-
tor is quite beside the point” because Killingsworth him-
self was not responsible for the delay.
  On appeal, the government alleges error in the district
court’s application of the factors specified in the Speedy
Trial Act. In determining whether to dismiss a case with or
without prejudice, the Act requires the district judge to
consider (1) the seriousness of the offense, (2) the facts and
circumstances which led to the dismissal, and (3) the
impact of reprosecution on the administration of the
Speedy Trial Act and on the administration of justice. 18
U.S.C. § 3162(a)(2).
  We review the district court’s dismissal with prejudice
for an abuse of discretion. United States v. Taylor, 487 U.S.
326, 335, 108 S. Ct. 2413, 2419 (1988); United States v.
Arango, 879 F.2d 1501, 1508 (7th Cir. 1989). However,



3
  At the time of oral argument, the state still had not brought
charges.
No. 07-1684                                                5

because the Speedy Trial Act requires the court to con-
sider explicit factors when deciding whether to dismiss
with or without prejudice, it confines the district court’s
discretion more narrowly than in cases where no factors
exist. Taylor, 487 U.S. at 344, 108 S. Ct. at 2423. As a
result, “[a]lthough the role of an appellate court is not to
substitute its judgment for that of the trial court, review
must serve to ensure that the purposes of the Act and
the legislative compromise it reflects are given effect.” Id.
at 336, 108 S. Ct. at 2419. We must “undertake more
substantive scrutiny to ensure that the judgment is
supported in terms of the factors identified in the statute.”
Id. at 337, 108 S. Ct. at 2420. We now turn to that task.
   The first factor, the seriousness of the offense, re-
quired little consideration because Killingsworth correctly
conceded that it militated for a dismissal without preju-
dice. We think the district court undervalued this factor
by stating that while the offense was serious and in-
volved a gun, there was no murder or injury, as there had
been in United States v. Fountain, 840 F.2d 509 (7th Cir.
1988). In Taylor, the Supreme Court found an abuse of
discretion where, among other things, the district court
failed to explain how the seriousness of the offense fac-
tored into its decision to dismiss with prejudice. 487 U.S.
at 344, 108 S. Ct. at 2423. Neglecting to find that the
first factor favored dismissal without prejudice, the dis-
trict court committed a similar error.
  Regarding the second factor, the facts and circumstances
leading to dismissal, the court found that “[t]he facts
and circumstances of the case which lead to the dismissal
could be that there is a hole here in the Court’s adminis-
trative side of things.” Indeed, the judge stated that he
would be talking to the magistrates to determine if there
was a communication problem and trusted that the
government would investigate the matter as well. How-
ever, the judge stressed that, whether the court or the
6                                                No. 07-1684

government was to blame, Killingsworth himself did
nothing wrong. He concluded that this was “not a case
where [the defendant] was trying to sit on or hide or
ambush somebody.”
  We think that the district court overemphasized
Killingsworth’s conduct and gave insufficient weight to
the fact that the court itself may have been at fault for
failing to move the case along. In addition, Killingsworth
conceded that the government did not intentionally cause
the delay and that he suffered no prejudice. In similar
circumstances, we have found that a dismissal without
prejudice was appropriate. See Arango, 879 F.2d at 1508;
Fountain, 840 F.2d at 512-13; United States v. Hawthorne,
705 F.2d 258, 261 (7th Cir. 1983). Moreover, a trial in
this case was probably never contemplated by the parties,4
and the delay due to the inadvertent violation was rela-
tively brief. While we agree with the district court that
the government should take measures to prevent repeti-
tions of this kind, the absence of bad faith by the govern-
ment and the lack of prejudice to the defendant nudge
this factor in favor of dismissal without prejudice.
  Finally, the district court considered the third factor, the
impact of a reprosecution on the administration of the
Act and on the administration of justice. The court empha-
sized that “the reason we have a statute is to enforce
the Defendant’s right to a Speedy Trial, and that’s the
whole point.” The judge overlooked the fact that the
violation was already being sanctioned by a dismissal. As
Taylor explained, “the [Speedy Trial] Act does not require
dismissal with prejudice for every violation. Dismissal
without prejudice is not a toothless sanction.” 487 U.S.
at 342, 108 S. Ct. at 2422. Putting it another way, the


4
  We make this inference because Killingsworth signed a proffer
agreement with the government shortly after the indictment.
No. 07-1684                                               7

fact that a violation occurred does not alone tip the scales
in favor of a dismissal with prejudice. On the contrary,
considering the seriousness of the offense, minor delay,
and lack of bad faith shown (or even alleged) in this case,
“the purpose of the Act would not be served by requir-
ing the court to impose the maximum sanction for a
minimum violation.” Hawthorne, 705 F.2d at 261 (citing
United States v. Regilio, 669 F.2d 1169, 1172-73 (7th Cir.
1981)). The third factor therefore also should have
favored dismissal without prejudice.
  For the court, the “bottom line” was that Killingsworth
was “cooperating, trying to get an arraignment, sitting
in jail, [and] didn’t get it.” We appreciate the court’s
attention to Killingsworth’s perspective, but whether a
defendant is detained pending trial is not an explicit
factor of § 3162(a)(2), much less its primary focus. If the
fact that a defendant is detained during the period of
delay were to dictate the nature of the dismissal, all
pretrial detainees whose rights were violated under the
Speedy Trial Act would receive a dismissal with prejudice.
This would render Congress’s designation of two types
of dismissal largely irrelevant.
  In sum, we find that insufficient weight was given to the
seriousness of the offense, the lack of bad faith on the
part of the government, and the absence of prejudice to
Killingsworth. Because its decision to dismiss the in-
dictment with prejudice was not supported in terms of the
factors identified in the statute, we find that the court
abused its discretion. Now certainly, if the charges
against Killingsworth were reinstated after a dismissal
without prejudice, the district judge or magistrate at the
new arraignment could properly consider that the defen-
dant had spent time in custody on the old indictment. This
fact could certainly move the court to consider releasing
the defendant on bail while the new case went forward.
We are not saying that the court must do that, but it would
8                                            No. 07-1684

be wise to take the prior custody into consideration when
considering new terms for the defendant’s pretrial situa-
tion.
  For these reasons, we REVERSE the judgment of the
district court and REMAND for further proceedings consis-
tent with this opinion.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                 USCA-02-C-0072—11-13-07
