               Case: 13-12044        Date Filed: 11/29/2016      Page: 1 of 19


                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-12044
                               ________________________

                         D.C. Docket No. 1:11-cr-20613-JLK-5



UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                          versus

URI AMMAR,

                                                                       Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                   (November 29, 2016)

Before WILSON, JULIE CARNES, and EBEL, * Circuit Judges.

WILSON, Circuit Judge:




       *
         Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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      Uri Ammar appeals his convictions and total sentence of life imprisonment

after a jury found him guilty of robbery, conspiracy to commit robbery, and using

or carrying a firearm in relation to a crime of violence. Ammar contends that the

district court erred by failing to dismiss his indictment pursuant to the Speedy Trial

Act, 18 U.S.C. §§ 3161–3174. Given the Supreme Court’s controlling decision in

Zedner v. United States, 547 U.S. 489, 126 S. Ct. 1976 (2006), we agree and

conclude that, in granting a one-year continuance, the district court failed to

comply with the Speedy Trial Act. Accordingly, the indictment must be

dismissed. We reverse and remand for the district court to consider whether the

dismissal should be with or without prejudice.

                        I.     THE SPEEDY TRIAL ACT

      The Sixth Amendment provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right to a speedy . . . trial.” U.S. Const. amend. VI. To

strengthen this constitutional mandate, Congress passed the Speedy Trial Act. The

Act provides that the trial of any defendant who pleads not guilty must begin

within 70 days of either the filing of the indictment or the date the defendant first

appears before a judicial officer to answer the charges, whichever occurs later. See

18 U.S.C. § 3161(c)(1). If a defendant is not tried within that window of time, then

the district court must grant the defendant’s motion to dismiss the indictment. See




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id. § 3162(a)(2). However, the 70-day time period may be tolled for certain

statutorily enumerated reasons. 1

       Relevant here, a district court may grant a continuance of the trial date when

the “ends of justice” support the continuance. See id. § 3161(h)(7)(A). To do so,

the district court must consider certain factors, such as whether the failure to grant

the continuance would “result in a miscarriage of justice,” id. § 3161(h)(7)(B)(i);

whether due to the nature of the case (or other factors), the case is too complex to

reasonably expect adequate preparation within the Speedy Trial Act’s time limits,

id. § 3161(h)(7)(B)(ii); or whether a refusal to continue the case would deny the

defendant “reasonable time to obtain counsel,” or would unreasonably deny either

party time for “effective preparation,” id. § 3161(h)(7)(B)(iv).

       After considering these statutory factors, the district court is required to

“set[] forth, in the record of the case, either orally or in writing, its reasons for

finding that the ends of justice served by the granting of [a] continuance outweigh

the best interests of the public and the defendant in a speedy trial.” Id. §

3161(h)(7)(A). Considering this provision, the Supreme Court found in Zedner

that “the Act requires express findings,” and “without on-the-record findings, there

can be no exclusion” of time past the 70-day requirement because the Speedy Trial


       1
         The Speedy Trial Act specifically lists seven separate periods of delay that may be
excluded from the 70-day requirement. See 18 U.S.C. § 3161(h). Only the seventh, the catch-all
“ends of justice” continuance, is at issue in this case.

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Act, with “procedural strictness,” “demands on-the-record [ends-of-justice]

findings.” 547 U.S. at 506–07, 509, 126 S. Ct. at 1989, 1990. 2

       Moreover, a defendant’s agreement to waive the protections of the Act

cannot, by itself, justify an ends-of-justice continuance because the public interest

in a speedy trial is also protected by the Act. 3 See id. at 500–01, 126 S. Ct. at 1985

(finding that a defendant cannot simply waive or “opt out of the Act”); United

States v. Mathurin, 690 F.3d 1236, 1242 (11th Cir. 2012). The best interests of the

parties—and even those of the court—cannot alone justify deviation from the Act’s

requirements, absent the determination that those interests outweigh the public

interest. “[T]he Act was designed with the public interest firmly in mind,” and

“there are many cases . . . in which the prosecution, the defense, and the court

would all be happy to opt out of the Act, to the detriment of the public interest.”

Zedner, 547 U.S. at 501–02, 126 S. Ct. at 1985–86.

       Accordingly, Zedner held that agreement by the parties cannot be the only

basis for granting a continuance. A finding that a continuance is justified solely

       2
         The Zedner Court, interpreting an older version of the Act, refers to the pertinent
section as § 3161(h)(8). In a 2008 amendment, this section was redesignated as (h)(7). Pub. L.
No. 110–406 § 13(3) (2008). The text of the statutory section did not change.
       3
          To be clear, a defendant cannot waive the Act’s timeliness requirements. The district
court bears the burden of making ends-of-justice findings and placing them on the record
irrespective of the defendant’s agreement to a delay. See Zedner, 547 U.S. at 506–07, 126 S. Ct.
at 1988–89. However, a defendant may waive his or her right to dismissal of the indictment
premised on a violation of the Act by failing to move for dismissal prior to trial. See 18 U.S.C. §
3162(a)(2). Here, Ammar timely moved for dismissal based on the Speedy Trial Act violation.
Thus, the waiver provision does not apply.

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because the parties agreed to it is not a proper ends-of-justice finding. The district

court must make “on-the-record findings that the ends of justice served by granting

the continuance outweigh” the defendant’s and the public’s interests in a speedy

trial. See id. at 498–99, 126 S. Ct. at 1984.

      The Act does not stipulate when the district court must make these findings;

that is, whether the findings must be made contemporaneously with the granting of

an ends-of-justice continuance. See id. at 506–07, 126 S. Ct. at 1989 (“Although

the Act is clear that the findings must be made, if only in the judge’s mind, before

granting the continuance . . . the Act is ambiguous on precisely when those

findings must be set forth, in the record of the case.” (alterations adopted and

internal quotation marks omitted)). However, the Zedner Court opined that a trial

court should put its findings regarding an ends-of-justice continuance on the record

at least by the time it rules on the defendant’s motion to dismiss for a speedy trial

violation. Id. at 507 & n.7, 126 S. Ct. at 1989 & n.7 (noting that the “best practice”

is for the court to state the reasons simultaneously when granting the continuance).

Thus, we look to see whether the district court considered the relevant factors and

placed its ends-of-justice findings on the record when it continued Ammar’s trial

beyond the Act’s 70-day timeframe, or, at the latest, by the time it ruled on

Ammar’s motion to dismiss for a speedy trial violation.




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                                 II.     BACKGROUND

       In this case, the clock for the 70-day calculation began on September 1,

2011, when a federal grand jury returned an indictment against Ammar and four

others for their involvement in the armed robbery and killing of a Brink’s money

courier. 4 Ammar pleaded not guilty, and a magistrate judge ordered Ammar

detained pending trial. Subsequently, on September 13, 2011, the district court

held a scheduling conference with Ammar, his codefendants, and the government

to discuss the trial date. The same day, the court entered an order scheduling trial

to begin October 9, 2012.

       Ammar then appealed the magistrate judge’s detention order, contending

that the district court had set an extended trial date over his objection and that

detention pending a trial set for more than a year from the date of the indictment

violated his due process and speedy trial rights. However, the district court denied

the appeal on December 1, 2011. Over a year after the original indictment, on

September 17, 2012, a federal grand jury returned a four-count superseding

indictment against Ammar. 5 Ammar moved to dismiss the indictment pursuant to


       4
          Ammar appeared before the court on the charges contained in the complaint before he
was first indicted. Accordingly, the indictment date—the later of the two—is the point at which
the 70-day period began to run. See 18 U.S.C. § 3161(c)(1).
       5
          The superseding indictment rearranged Ammar’s charges, splitting what was originally
styled as one count into two separate counts. Therefore, the “superseding indictment do[es] not
reset the speedy-trial timetable.” See United States v. Jones, 601 F.3d 1247, 1254 (11th Cir.
2010).

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the Speedy Trial Act, which the government opposed. The district court

considered the matter at a calendar call on October 4, 2012. After hearing from

both parties, the court denied Ammar’s motion during the calendar call.

      On the first day of trial, Ammar again raised his motion to dismiss pursuant

to the Speedy Trial Act. The court denied the motion and the case proceeded to

trial. At the conclusion of the trial, the jury returned a verdict of guilty as to three

counts and not guilty as to one count. Thereafter, the district court sentenced

Ammar to life imprisonment. Ammar timely appealed, raising issues regarding the

timeliness of trial, his conviction, and sentencing. We address only his claim

under the Speedy Trial Act because we find that this threshold issue is dispositive.

      We review de novo the denial of Ammar’s motion to dismiss based on a

violation of the Speedy Trial Act, and any factual determinations by the district

court with regard to excludable time receive clear error review. See United States

v. Harris, 376 F.3d 1282, 1286 (11th Cir. 2004). We must determine whether any

time between Ammar’s indictment on September 1, 2011, and the start of

Ammar’s trial on October 9, 2012, can be excluded, bringing Ammar’s trial within

the Act’s 70-day requirement. Crucial to this inquiry is whether the district court

weighed the relevant interests and made the necessary ends-of-justice findings on

the record. See Zedner, 547 U.S. at 507, 509, 126 S. Ct. at 1989, 1990. These

findings may be oral or written. Therefore, we look to both the conversations at


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the hearings before the district court and to written parts of the record. Here, the

parties point to two dates in the record: the September 2011 scheduling hearing and

order setting the trial date and the October 2012 calendar call denying Ammar’s

motion to dismiss. We describe both instances before turning to our analysis.

                 A. September 2011 Scheduling Hearing and Order

      On September 13, 2011, the district court heard from the parties at a

scheduling conference and then, on the same day, entered its order scheduling trial

for a year later. At the hearing, the government informed the court that Ammar

and his co-defendants were charged with crimes for which they could face the

death penalty, and the Department of Justice (DOJ) would need between five

months and one year to determine whether to seek that option. The DOJ’s death

penalty process included a step in which the defendants could present mitigating

factors. Some co-defendants therefore requested a lengthy continuance to afford

them time to prepare such a presentation. Concurring with these defendants’

request for a delayed trial date, the government requested a trial date one year out.

      In contrast, Ammar stated that he did not believe the government would seek

the death penalty against him. For this reason, he believed he could be ready to

make his presentation within thirty days. In addition, Ammar opposed a lengthy

continuance because he remained in custody and the district court had not granted

his request for bond. As such, Ammar was unwilling to agree to the lengthy


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continuance sought by some of his co-defendants. Instead, he asked for a

December 2011 trial date, or in the alternative, that the district court review the

magistrate judge’s decision regarding pretrial detention.

      After the hearing, the district court issued a written order setting the case for

trial. The order stated that the court had been advised during the discussion the

same day “that a reasonable time allowance of approximately one year would be

necessary for the parties to implement the newly-amended death policy procedures

in order to permit careful consideration by the [DOJ] of whether or not this case

will proceed to trial as a ‘death case.’” It also noted that “[s]everal defense counsel

advised the Court that there are other procedures that will be necessary for court-

appointed counsel to follow to obtain approval from the Eleventh Circuit Court of

Appeals for a budget to handle a potential death case,” while others “indicated that

they were opposed to a trial date set so far in the future.” The order concluded:

“After a thorough discussion, it became apparent that the Court’s best efforts to get

this case tried under its normal procedures of setting conflict-free trial dates within

approximately 90–120 days is not a reasonable objective.” The court then directed

the clerk of court to schedule the trial for October 9, 2012.

                            B. October 2012 Calendar Call

       On October 3, 2012, Ammar moved to dismiss the September 17, 2012

superseding indictment pursuant to the Speedy Trial Act. He noted that unless the


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continuance granted by the court was excludable, the trial had not commenced

within the 70 days required by the Act. Citing Zedner, he further noted that the

fact that some defendants had agreed to the continuance was not sufficient, by

itself, to comply with the Speedy Trial Act. Instead, the Act requires that, for all

ends-of-justice continuances, the court make the appropriate findings set out in the

statute.

       The government opposed the motion. The government acknowledged that

the court had not used the phrase “ends of justice” in its order granting the

continuance nor had it even mentioned the Speedy Trial Act, but it argued that the

court had performed the balancing of interests required by § 3161(h)(7)(A).

Moreover, the government noted that, prior to ruling on the motion to dismiss, the

court would be permitted to explicitly make the necessary ends-of-justice findings.

The government requested that the court make those findings, which it contended

were supported by the reasons for a continuance offered at the September 13, 2011

status conference.

       The district court addressed the matter at a calendar call on October 4, 2012.

The court first stated that the trial date was “by agreement of everybody.” Ammar

corrected the court, replying that he had requested that trial be set for December

2011. The court then stated that the delay “was caused by this death penalty

statute and the law pertaining to setting trials.” Ammar explained that the district


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court’s order setting the trial date did not “set forth excludable time in the public

[sic] best interest or in the interest of the defendant.” The court responded, “I

asked each of you if you agreed to this, and everybody said yes,” and “[e]verybody

knew they were waiving the Speedy Trial Act.”

      Although the government stated that it believed the court had engaged in the

necessary balancing of factors and that the court was not required to “use some

magic words, [like] the words ‘ends of justice,’” the government again requested

that the court make an explicit ends-of-justice finding. Specifically, the

government requested the court to hold “that when [it] issued that order it was in

the ends of justice.” The court replied, “At the end of the day, if they all agree to

[the trial date], that’s always been adequate.” The court disagreed that it had to say

any words other than what date it was setting the trial. Further, the court opined

that it had been Ammar’s duty to advise the court if the Speedy Trial Act was

being violated and to request a trial.

      The court then asked the government, “What magic words are left out of the

order that I entered? Should I put in there that [counsel for one of the co-

defendants] couldn’t go to trial on the September 15th calendar because he has a

conflict, and somebody else couldn’t go later or before?” The government

responded that it thought the court had earlier set out sufficiently the reasons for

the continuance, but it once more urged the court to make an ends-of-justice


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finding on the record, to hold “that [the continuance] outweighs the public [sic]

and the defendant’s interest in a speedy trial. That would make that time

excludable.”

      The court inquired whether the government was arguing that the motion to

dismiss should be denied. The government responded, “I think if your Honor

feels it needs to be excluded and utter those magic words, you should.” The court

responded that it did not “wish to go back and change an order that [it had already]

entered, that [it] felt was perfectly acceptable, as a matter of fact agreeable with

everybody.” Moreover, the court explained, “that’s the reason I entered the order.”

The court continued, “It was in the interest of—both sides had an interest. The

government had an interest in not having to try the case two or three times or

whatever. The defendants had an interest, and we paid great sums of money to

especially hire death penalty counsel. They had a big interest in seeing if they

could persuade the [DOJ] not to seek the death penalty, which they did ultimately.

That was a big advantage to them. . . . It was fair to everybody.”

      The government then stated that, “regardless of what the defendant says, the

Court can make a finding that the ends of justice outweigh—a continuance in the

interest of justice.” The court replied, “That’s why I’m overruling the defense [sic]

request to move the case forward. When I’m granting a time that everybody

wants, there’s no need for it. It’s pointless.” The court then denied Ammar’s


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motion, “in the interest of fair play in handling these cases and everything that is

reasonable and decent, the effort I put into achieving a trial date that was agreeable

to everybody and worked to everybody’s advantage.”

                                III.   DISCUSSION

                            A. Speedy Trial Act Violation

      Our analysis is guided by the language of the Speedy Trial Act and the

Supreme Court’s interpretation of that language in Zedner. The Act states that

delay resulting from a continuance either by the district court or at the request of a

party is excludable from the 70-day period in which the trial must begin if the court

puts on the record “its reasons for finding that the ends of justice served by the

granting of [a] continuance outweigh” the public’s and defendant’s interests in a

speedy trial. See 18 U.S.C. § 3161(h)(7)(A). Zedner makes clear that the findings

must be expressly made on the record. See 547 U.S. at 506–07, 126 S. Ct. at

1988–89 (stating that the Act, with “procedural strictness,” “demands on-the-

record findings”; thus, the district court must make “an express finding on the

record about the ends-of-justice balance” (emphasis added and internal quotation

mark omitted)). Additionally, Zedner held that the parties cannot simply agree to a

continuance and thus waive the Act’s 70-day requirement. See id. at 500–03, 126

S. Ct. at 1985–87 (finding that “mere consent or waiver” will not result in

excludable time). Hence, a court’s finding that a continuance is justified solely


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because the parties agreed to the continuance is not a proper ends-of-justice

finding. See id. at 502, 126 S. Ct. at 1986. If the district court fails to comply with

these requirements, then the resulting delay will not constitute excludable time

from the 70-day calculation.

      Based on the record before us, we conclude that the district court ran afoul

of Zedner. The court stated several times that it had granted the continuance

because all of the parties had agreed to it, thereby indicating its belief that the

Speedy Trial Act could be waived. And when the government repeatedly advised

the court that the continued time period could be excluded if the court simply made

an express ends-of-justice finding, the court refused to declare that the ends of

justice supported the continuance, repeating its belief that the “parties’ agreement”

provided a sufficient reason to justify the continuance.

      Specifically, during the October 2012 calendar call, the district court ruled

on Ammar’s motion to dismiss for the Speedy Trial Act violation. The court

expressed its understanding that the trial date was “by agreement of everybody,”

emphasizing repeatedly “[e]verybody knew they were waiving the Speedy Trial

Act,” and stating, “if they all agree . . . that’s always been adequate.” In fact, the

district court said it would not make the ends-of-justice findings because they were

unnecessary, stating, “When I’m granting a time that everybody wants, there’s no

need for it. It’s pointless.” The court’s repeated assertion that it did not have to


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make the ends-of-justice findings because the parties agreed to the trial date is

problematic for three reasons.

      First, the district court’s assertion is factually inaccurate and thus clearly

erroneous—not all of the parties agreed to the trial date, as evidenced by Ammar’s

repeated objection to the length of the delay. Second, it is legally incorrect

because an agreement by the parties does not eliminate the requirement that the

court make a proper ends-of-justice finding. Zedner makes clear that the parties

cannot waive the Speedy Trial Act’s requirement. The district court did not

comply with this rule, as it based its decision to continue the case on the parties’

agreement. Again, the court stated to the parties: “Everybody knew they were

waiving the Speedy Trial Act,” and the date was “agreeable with everybody, and

that’s the reason I entered the order.” (emphasis added). While we do not fault a

district court, when considering a defendant’s motion to dismiss based on an

alleged Speedy Trial Act violation, for noting that the defendant had agreed to the

continuance, this agreement cannot be the sole basis for the continuance. The

court must consider both the defendant’s interest and the public’s interest in a

speedy trial. Zedner, 547 U.S. at 501, 126 S. Ct. at 1985. Third, the court did not

just fail to make an ends-of-justice finding—it refused to make this finding.

Where a district court refuses to make such a finding, notwithstanding the repeated

entreaties of the government that it do so, we are left with little choice but to


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conclude that the district court did not think that the ends of justice warranted the

continuance. Such a record makes it difficult to affirm the court’s decision here,

even if we might otherwise conclude that there were adequate reasons to justify the

continuance.

       The government has argued, however, that the district court’s failure to

specifically utter the “magic words,” such as “ends of justice,” should not be

dispositive. We do not necessarily disagree with this position. But this appeal

cannot be properly characterized as a “magic words” case in which the district

court simply neglected to utter certain precise words.6 Again, when confronted

with the request to make the findings, the court expressly declined to do so, stating

that the continuance was based solely on the parties’ agreement. Thus, we need

not opine as to precisely which or specifically how many words a district court

must place on the record before the findings requirement is met. Instead, the

court’s explicit declination to make ends-of-justice findings on the record and its

stated reason for continuance are dispositive.

       In sum, our review of the record leads us to conclude that the district court

did not make the proper ends-of-justice findings to permit tolling of the 70-day


       6
          That we recognize the possibility that a finding that fails to recite precisely the words
called for by the statute might pass muster does not mean that we encourage deviation from the
statutory language. It is simple enough for a district court to create a template that sets out
exactly the statutory words required to be used, and to recite those words to explain a
continuance that is otherwise based on the factors set out in the statute. Doing so is a prudent
step that reduces the likelihood of future litigation concerning that order.
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time period in which Ammar should have gone to trial. We hold that the Speedy

Trial Act was violated when Ammar’s trial did not begin until over a year after his

indictment.

                                      B. Remedy

      Having determined that Ammar’s rights under the Speedy Trial Act were

violated, we turn to the appropriate remedy. Once again, the plain language of the

Act controls: dismissal of Ammar’s charges is required. The Act states that, when

a trial does not begin within the required period of time, “the information or

indictment shall be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2)

(emphasis added). Thus, although a trial court is ordinarily given “great discretion

to make decisions concerning trial schedules and to respond to abuse and delay

where appropriate,” the Act “confines the exercise of that discretion more

narrowly, mandating dismissal of the indictment upon violation of precise time

limits, and specifying criteria to consider in deciding whether to bar

reprosecution.” United States v. Taylor, 487 U.S. 326, 343–44, 108 S. Ct. 2413,

2423 (1988). The Supreme Court specified in Zedner that, “if a judge fails to make

the requisite findings regarding the need for an ends-of-justice continuance, the

delay resulting from the continuance must be counted, and if as a result the trial

does not begin on time, the indictment or information must be dismissed.” 547




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U.S. at 508, 126 S. Ct. at 1989. The Act “does not permit those findings to be

made on remand.” 7 Id. at 506, 126 S. Ct. at 1988.

       As discussed above, the district court failed to make the requisite findings,

and Ammar’s trial, which began over a year after his indictment, violated the

Speedy Trial Act’s 70-day time period. Accordingly, we reverse and remand to the

district court with instructions to dismiss the charges. This dismissal may be with

or without prejudice—we leave that determination to the district court. 8

                                    IV.     CONCLUSION

       A criminal defendant’s right to a speedy trial is “one of the most basic rights

preserved by our Constitution.” Klopfer v. North Carolina, 386 U.S. 213, 226, 87

S. Ct. 988, 995 (1967). Congress chose to safeguard this important right through

the rigid procedural requirements of the Speedy Trial Act. Those requirements

were not met here. Therefore, we have no choice but to vacate Ammar’s

conviction. We reverse and remand with instructions for the district court to

dismiss the charges against Ammar and determine, after consideration of the

       7
         The Court expressly rejected the application of harmless-error review, finding that such
an inquiry does not “square with the Act’s categorical terms.” Zedner, 547 U.S. at 508, 126 S.
Ct. at 1989–90. This result may seem inflexible; however, as the Court found, the Act’s
requirements are intentionally procedurally strict. See id. at 509, 126 S. Ct. at 1990.
       8
          The Act provides the statutory factors to guide the district court in making this decision.
The court must consider, inter alia, the “seriousness of the offense,” the circumstances leading to
dismissal, and the impact that reprosecution would have on the administration of the Act and
justice. Examination of each statutory factor is necessary before the district court may conclude
that the charges should be dismissed with prejudice. See Taylor, 487 U.S. at 333, 108 S. Ct. at
2417–18.

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statutory factors enumerated in the Act, whether the dismissal should be with or

without prejudice.

      REVERSED AND REMANDED.




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