                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2145
                                   ___________

United States of America,            *
                                     * Appeal from the United States
           Plaintiff-Appellee,       * District Court for the Western
                                     * District of Missouri.
     v.                              *
                                     *
Kevin P. McKinney,                   *
                                     *
           Defendant-Appellant.      *
                                ___________

                             Submitted: December 14, 2004
                                Filed: January 18, 2005
                                 ___________

Before MELLOY, BRIGHT, and BENTON, Circuit Judges.
                            ___________

BRIGHT, Circuit Judge.

       The government filed an indictment against appellant Kevin P. McKinney,
charging him with being a felon in possession of a firearm. McKinney requested a
speedy trial under the Interstate Agreement on Detainers Act (IADA). That Act
required that his case must be brought to trial within 180 days. After the 180-day
time limit had expired without being brought before the federal court, McKinney filed
a motion to dismiss. The magistrate judge1 held a hearing and recommended that the


      1
      The Honorable James C. England, United States Magistrate Judge for the
Western District of Missouri.
district court dismiss the indictment without prejudice. The district court2 agreed and
dismissed the indictment without prejudice. McKinney appeals and argues the
district court erred, because the government violated his right to a speedy trial under
the IADA. We affirm. The district court did not abuse its discretion in dismissing
the indictment without prejudice.

I.    Background

       Missouri State Highway Patrol troopers observed a speeding vehicle, and
pursued the vehicle for fourteen miles. The chase ended with the vehicle crashing
and the driver fleeing on foot. The troopers apprehended and arrested the driver, later
identified as McKinney. The troopers found a gun on the ground where McKinney
was lying, two shells for the gun, and four plastic “baggies” of methamphetamine in
McKinney’s pocket.

       Following his arrest by state officials, McKinney pleaded guilty in state court
and the state court sentenced him to seven years on two counts of possession of a
controlled substance to be served concurrently. State officials transported McKinney
to the Missouri Department of Corrections to begin serving his sentence. McKinney
entered into a twelve-month drug rehabilitation program, and would be eligible for
probation on his state sentence when he completed the program.

      The government filed a one-count indictment against McKinney charging him
with being a felon and an unlawful user of a controlled substance in possession of a
firearm and ammunition. The government later filed a two-count superseding
indictment against McKinney, alleging that, in addition to the above charge,
McKinney illegally possessed a firearm on an earlier date.


      2
       The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.

                                         -2-
      Officials at the Missouri Department of Corrections received a “Detainer
Against Sentenced Prisoner” from the United States Marshal’s Service. McKinney
completed and signed the detainer and requested a speedy trial under the IADA.
McKinney returned the request for a speedy trial, which was filed with the district
court on August 7, 2002. The United States Attorney’s Office received a copy of
McKinney’s signed request on August 7, 2002.

      The 180-day time limit in which McKinney’s case had to be brought to trial
under the IADA expired on February 3, 2003. The government requested a Writ of
Habeas Corpus Ad Prosequendum to bring McKinney before the federal courts on
February 25, 2003. The magistrate court issued the writ and directed McKinney to
appear in federal court in the instant case.

       McKinney filed a motion to dismiss. David C. Jones, the government’s
attorney, recognized that he would be a fact witness and withdrew from
representation of the government on this matter. The magistrate judge held an
evidentiary hearing, where McKinney and Jones testified. McKinney testified that
he requested a speedy trial with the anticipation he would be able to quickly resolve
his federal charges and return to the state institution and the drug treatment program.
According to Jones, either Jones or his secretary misfiled McKinney’s IADA request
when the United States Attorney’s Office received it. Jones discovered the request
in a different file on February 24, 2003.

       After the hearing, the magistrate court noted that the time limits of the IADA
had not been complied with by the government and recommended the indictment be
dismissed. The magistrate court examined the factors identified in 18 U.S.C. App.
2 § 9(1) to determine whether to dismiss the indictment with or without prejudice.
The magistrate court concluded that dismissal with prejudice was not warranted. The
district court agreed with the magistrate court’s recommendation, and dismissed the
indictment against McKinney without prejudice.

                                         -3-
       On August 1, 2003, the government returned McKinney to the Missouri
Department of Corrections. On September 10, 2003, the government filed a new
indictment against McKinney, alleging the same charges and conduct that was alleged
in the original superceding indictment. McKinney renewed his motion to dismiss,
which the district court denied. McKinney entered a conditional guilty plea to the
indictment, reserving his right to appeal the district court’s order dismissing the
indictment without prejudice. The district court sentenced McKinney to sixteen
months on each count to run concurrently. The district court also ordered
McKinney’s sentence to run concurrently with his state sentence. This appeal
follows.

II.   Standard of Review

       The standard of review for reviewing a district court’s decision to dismiss an
indictment without prejudice under the IADA, 18 U.S.C. App. 2 § 9, has not yet been
established by this court.

      The Ninth Circuit applies an abuse of discretion standard in reviewing a district
court’s decision to dismiss an indictment without prejudice under the IADA. See
United States v. Kurt, 945 F.2d 248, 254 (9th Cir. 1991). In addition, this court has
reviewed a district court’s decision to dismiss an indictment without prejudice under
the Speedy Trial Act, which has nearly identical language as the IADA.3 United

      3
       The Speedy Trial Act states:

      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).

                                         -4-
States v. Koory, 20 F.3d 844 (8th Cir. 1994). In interpreting the nearly identical
language, this court noted it “will not overturn a district court’s decision to allow or
to bar reprosecution absent an abuse of discretion.” Id. at 846-47. This court also
noted that “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 lightly be disturbed.” Id. (quotations omitted).

      For the same reasons, we review the district court’s decision to dismiss
McKinney’s indictment without prejudice under the IADA for abuse of discretion,
and review the factual findings that support the decision for clear error.

III.   Discussion

       The IADA states that a prisoner against whom a detainer has been lodged
“shall be brought to trial within one hundred and eighty [180] days after” the prisoner
has given proper notice of his request for a speedy trial. 18 U.S.C. App. 2 § 2. A
court may dismiss an indictment with or without prejudice when the United States is
the receiving state. 18 U.S.C. App. 2 § 9 (1) & (2). The court must consider the
following factors in deciding whether to dismiss with or without prejudice: (1) the
seriousness of the offense; (2) the facts and circumstances leading to the dismissal;


       The IADA states:

       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 the agreement on detainers and on the administration
       of justice.

18 U.S.C. App. 2 § 9(1).


                                          -5-
and (3) the impact of re-prosecution on the administration of the Act and on the
administration of justice. Id.

       The magistrate court considered the three factors in recommending to dismiss
the indictment without prejudice, and the district court adopted the magistrate court’s
recommendation. We review each factor in turn.

      (1)    Seriousness of the offense

      The magistrate court found that McKinney’s charged conduct was serious. The
magistrate court concluded that this factor favors dismissal without prejudice.

       The government charged McKinney with two counts of being a felon in
possession of a firearm. The IADA does not specify the criteria for analyzing the
seriousness of the offense, but other courts have examined the nature of the conduct
charged and the potential sentence. See, e.g., Kurt, 945 F.2d at 253 (examining the
facts of the crime and the potential sentence).

       The nature of McKinney’s conduct and the potential sentence for McKinney’s
charged offense demonstrates the seriousness of his offense. McKinney fled police
for fourteen miles and then continued to flee police on foot after abandoning his
vehicle. During the arrest the police discovered McKinney possessed four baggies
of methamphetamine, a gun and ammunition. The statutory maximum penalty for
each of McKinney’s charged counts is ten years of imprisonment and a fine of
$250,000. See 18 U.S.C. §§ 922(g)(1) & (3), 924(a)(2). This court has found that a
single count with the same statutory penalty is a “serious offense.” See United States
v. Duranseau, 26 F.3d 804, 808 (8th Cir. 1994) (interstate transportation of stolen
property is a serious offense).




                                          -6-
      The magistrate court did not clearly err in its factual findings regarding the
seriousness of McKinney’s offense. The district court did not abuse its discretion in
concluding this factor supports dismissal without prejudice.

      (2)    Facts and circumstances leading to the dismissal

       The magistrate court noted that because “there has been no evidence of bad
faith or a pattern of negligence established, and because [McKinney] was the victim
of 'an unfortunate administrative oversight’ . . . the Court finds that the second factor
also favors dismissal without prejudice.”

        Here, either Jones or his secretary misfiled McKinney’s request to be brought
to trial within 180 days. When Jones discovered the error, he examined the district
court’s docket sheet, which described the request only as a detainer. The docket
sheet, therefore, did not provide notice of McKinney’s request to be brought to trial
within 180 days. After discovering the misfiled request, Jones immediately filed a
writ with the district court to bring McKinney before the court as soon as possible.

       The magistrate court (and the district court in adopting the magistrate court’s
recommendation) did not clearly err in its factual findings on this factor. McKinney
did not present evidence of bad faith or a pattern of negligence. The only reason the
government did not honor McKinney’s request was due to a clerical filing error. In
addition, as discussed below, McKinney was not prejudiced by the error. Therefore,
the district court did not abuse its discretion in concluding this factor supports
dismissal without prejudice.

      (3)    The impact of re-prosecution

      The magistrate court noted that the focus on this issue “should be on whether
the prosecution had an improper motive, and whether the violation prejudiced the

                                          -7-
defendant.” The magistrate court noted that there is no evidence of improper motive
and the prejudice McKinney may have experienced by the violation does not rise to
the level that would mandate a dismissal with prejudice. The magistrate court
concluded that this factor favors dismissal without prejudice.

       As noted above, the only reason the government did not bring McKinney
before the federal court within 180 days was due to a clerical filing error, not because
of any improper motive, bad faith, or pattern of negligence on the government’s
behalf. Furthermore, McKinney will not be prejudiced if he is re-prosecuted.
McKinney argues he may have to restart his drug rehabilitation program. However,
even if McKinney’s request to be brought to trial within 180 days was honored,
McKinney probably would need to restart the rehabilitation program. McKinney has
presented no evidence, other than his own statements, that the delay of his trial
actually prevented him from continuing his education and rehabilitation.

       The magistrate court (and the district court in adopting the magistrate court’s
recommendation) did not clearly err in its factual findings on this factor. The district
court did not abuse its discretion in concluding this factor supports dismissal without
prejudice.

IV.   Conclusion

      Accordingly, we affirm.
                     ______________________________




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