concurring in the judgment:
I agree that the district court erred in dismissing John Tootle’s indictment with prejudice as a remedy for violation of the Speedy Trial Act. Accordingly, I concur in the court’s judgment vacating the district court’s order and remanding the case for further proceedings. I write separately because, in my view, it is neither necessary nor prudent to reach the question of whether Speedy Trial Act is applicable here.
First, the government has never claimed or even suggested that this case is not governed by the Speedy Trial Act. Rather, its only arguments in this court and in the court below were: (1) “the seventy-day period under the Speedy Trial Act had not expired at the time of Tootle’s trial date” and (2) even if it had “the district court abused its discretion by dismissing the indictment with prejudice.” Brief of Appellants at 11 and 16. Thus, it seems to me the government has implicitly conceded the applicability of the Speedy Trial Act here.
At the very least, because like any other litigant, the government is presumed to know the law, its utter failure to make a claim that the Speedy Trial Act is inapplicable constitutes waiver of this claim. See United States v. Bornstein, 977 F.2d 112, 115 (4th Cir.1992). This court has not been reluctant to find in similar circumstances that criminal defendants have waived far more important constitutional rights. I see no reason not to hold the government to the same standard. Indeed, in precisely the same context — i.e., whether a trial court’s dismissal of an indictment with prejudice as a remedy for violation of the speedy Trial Act was an abuse of discretion — the Supreme Court recently did just that. See United States v. Taylor, 487 U.S. 326, 332 n. 6, 108 S.Ct. 2413, 2417 n. 6, 101 L.Ed.2d 297 (1988) (noting that, although the government asserted that lower courts “relied on a ‘now out-moded’ method of calculating speedy trial time, and that under another now-favored method,” there was “no speedy trial violation,” because “that argument was neither raised below nor pressed here,” it would not be considered).
Furthermore, determination of whether the Speedy Trial Act is applicable here is not at all essential to a fair and just adjudication of this case. The same ultimate result is compelled here by resolving an issue that was briefed and argued by both parties, ie., whether the district court abused its discretion in dismissing the indictment with prejudice as a remedy for the Speedy Trial Act violation. In determining whether to dismiss a ease with or without prejudice in these circumstances, a court must consider: “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 justice.” 18 U.S.C. § 3162(a)(1). In Taylor, the Supreme Court concluded that in light of these statutory factors, the discretion of district court in dismissing an indictment with prejudice is “confine[d].” 487 U.S. at 343, 108 S.Ct. at 2423. Accordingly, a court must “carefully 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 336-37, 108 S.Ct. at 2419.
Here, the district court did not “clearly articulate” its analysis of the required factors; rather, it simply concluded that “[i]n this circumstance and in view of the factors the court must weigh, the court deems that this matter should be dismissed with prejudice.” Moreover, the record offers little sup*385port for the district court’s decision to dismiss with prejudice. The crimes with which Tootle was charged were certainly serious in nature and “[wjhere this is true, the sanction of dismissal with prejudice should ordinarily be imposed only for serious delay.” United States v. Jones, 887 F.2d 492, 495 (4th Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1137, 107 L.Ed.2d 1042 (1990). There was no lengthy or serious delay here. Furthermore, the parties agree that the delay that did occur was caused by inadvertent clerical error, not because the government was seeking to obtain a tactical advantage. Additionally, Tootle can point to no real prejudice, other than the incarceration that he would have been subject to anyway had his guilty plea been accepted. Accordingly, it seems clear that dismissal with prejudice was error and for this reason, the result reached by the court here is, in any event, compelled. There is no need for the court to reach the question of applicability of the Act.
Finally, although the majority’s rationale for concluding that the Speedy Trial Act is inapplicable here is both lucid and straightforward, I am troubled by the possible repercussions of this holding. In my view, it virtually invites abuse. True, Tootle never entered a not-guilty plea but this was not by choice. He never entered a not-guilty plea because he was never given an opportunity to do so. He was denied this opportunity by the practice now in effect of not conducting arraignments until the eve of trial. The majority may be correct in concluding that this practice permits the government legally to deprive a criminal defendant of well-established rights under federal law to a speedy trial. However, I would await a case in which we had to resolve this thorny question — or at least one in which it was briefed and argued — -to so hold.*
Indeed, the implications of the majority’s holding underscore the wisdom of the government’s waiver of the claim that the Speedy Trial Act is inapplicable. The majority characterizes as "improvident” the practice that has been adopted in the Eastern District of North Carolina of not holding arraignments until the eve of trial. That characterization is entirely justified if the purpose and effect of the practice is to nullify the Speedy Trial Act by preventing the deadlines established by the Act from ever being triggered. However, it may be that the judges and the members of the bar of the Eastern District of North Carolina were fully aware that the practice had the potential of frustrating the intent of Congress in enacting the Speedy Trial Act, and so determined to implement the practice in a manner that did not adversely impact the rights of defendants and to forego any claim that the Act did not require such an implementation. The majority unnecessarily holds this self-policing unenforceable and so nullifies a practice that arguably had many benefits, e.g., preventing the waste of resources of the court, the Marshal's Service and the bar in holding an unnecessary arraignment at which a defendant (whose conditions of release or detention have already been set at an initial appearance) merely enters a not guilty plea. For this reason, it is doubly unfortunate that the majority has chosen not to honor the government's waiver of any claim that the Speedy Trial Act is inapplicable.