In Koerber, the government won its appeal from a Utah district court order dismissing a Ponzi-scheme prosecution with prejudice. But the government's win was limited to a remand with instructions for the district court to reweigh the seriousness of the offense and the defendant's contributions to the delays in the case. Otherwise, the Tenth Circuit approved of the district court's findings, and suggested that those findings may yet support dismissal with prejudice:
After including these two considerations in its analysis, the district court retains discretion to conclude that, among other things, 'the sordid history of this case,' and the 'Government's pattern of neglect and dilatory conduct in managing the STA clock' outweigh those facts and require a dismissal with prejudice.The Tenth Circuit discussed the district court's findings in detail, offering the following analysis of the statutory dismissal factors:
Seriousness of offense. If the offense is serious, this factor weighs in favor of dismissal without prejudice, period. The court is not to consider the strength of the allegations or the presumption of innocence in connection with this factor (the trial court's first error in Koerber).
Facts and circumstances. In weighing this factor, the trial court may consider the government's "pattern of neglect" in failing to prepare proper ends-of-justice continuance orders. The court may also consider the government's dilatory efforts to appeal a suppression order, and, after dismissing the appeal (because it failed to get the Solicitor General's authorization), to seek an untimely rehearing of the order. The court may consider the government's general pattern of misconduct in the case, including its investigatory (mis)conduct that led to the suppression order, and its dilatory discovery tactics. Finally, the court must also consider the defendant's contributions to the delays (the trial court's second error in Koerber).
Impact of reprosecution. The trial court may rely on the government's mishandling of the case when weighing this factor. And in this case, the government's loss of 27 discs of information and an agent's testimony that he remembered little of several critical communications were sufficient to establish prejudice. The court may also properly consider the passage of time and the fact that the case "cycl[ed] through a dozen Assistant United States Attorneys" when weighing this factor.