The Speedy Trial Act commands the government to bring criminal defendants to trial within seventy days of their first appearance before a judicial officer of the court or the filing of an indictment, whichever is later. 18 U.S.C. Sec. 3161(c)(1). If this deadline is not met, the district court must dismiss the indictment, either with or without prejudice. Id. Sec. 3162(a)(2). Certain precisely defined periods of delay are automatically excluded from the calculation of the seventy-day time limit, such as those resulting from necessary pretrial proceedings or interlocutory appeals. See id. Sec. 3161(h)(1)-(7). In order to "avoid the pitfalls of unnecessary rigidity" and provide courts with the discretion to deal effectively with individual cases, see S.Rep. No. 1021, 93rd Cong., 2d Sess. 21 (1974) (Senate Report), Congress included section 3161(h)(8)(A), which permits a district court on its own motion to grant continuances comprising excludable time when it finds that "the ends of justice ... outweigh the best interest of the public and the defendant in a speedy trial."3 But despite its interest in insuring flexibility, Congress intended that this exclusion be "rarely used," Senate Report, supra, at 41, and sought to avoid its abuse by providing that no period of delay based on the "ends of justice" may be excluded "unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice [would be] served" by granting the excludable delay. Subsection (h)(8)(B) contains a nonexclusive list of factors for the court to consider in deciding whether to grant a continuance under subsection (h)(8)(A).4

At least two purposes are served by the requirement that a district court set forth its reasons for granting an ends-of-justice continuance. First, it insures careful consideration of the relevant factors by the trial court. Senate Report, supra, at 39. Second, the requirement provides the appellate court with an adequate record on which to review the district court's decision. United States v. Brooks, 697 F.2d 517, 520 (3d Cir.1982), cert. denied, 460 U.S. 1073, 103 S. Ct. 1531, 75 L. Ed. 2d 952 (1983).

In this case, the district judge set defendants' trial date outside the limits of the Act without making any ends-of-justice findings on the record. Only after defendants brought their motions to dismiss did he record his findings as required by section 3161(h)(8)(A). The Act plainly contemplates that the district "judge must determine before granting the continuance that society's interest in meeting the 'ends of justice' outweighs the interest of the defendant and of society in achieving speedy trial." Senate Report, supra, at 39 (emphasis added). See also United States v. Carey, 746 F.2d 228, 230 (4th Cir.1984) ("retroactive continuances that are made after expiration of [speedy trial clock] for reasons the judge did not consider before lapse of the allowable time are inconsistent with the Act"); United States v. Frey, 735 F.2d 350, 353 (9th Cir.1984) ("district court erred by making nunc pro tunc findings to accommodate its unwitting violation of the Act"); United States v. Richmond, 735 F.2d 208, 215-16 (6th Cir.1984) (judgment of conviction reversed because "district court cannot fairly be said to have granted the continuance ... based on the findings that it set forth" later); United States v. Brooks, supra, 697 F.2d at 522 ("district judge must consider the matter at the outset"). Congress intended that the decision to grant an ends-of-justice continuance be prospective, not retroactive; an order granting a continuance on that ground must be made at the outset of the excludable period. Nevertheless, it is reasonably well settled that the required findings need not be placed on the record at the same time that the continuance is granted. See United States v. Brooks, supra, 697 F.2d at 522 (citing cases).

Given these principles, our question is whether the district court's October 12 statement--that on July 6 it had in fact made an ends-of-justice determination in setting the trial date--satisfies the procedural requirements of the Act. The government devotes surprisingly little attention to this question in its brief. It apparently contends that as long as the district court eventually makes the required findings, the timing of the court's announcement that a particular continuance was based on the ends of justice is largely immaterial. We disagree. The Seventh Circuit's dictum in United States v. Janik, 723 F.2d 537, 544-45 (7th Cir.1983), is persuasive:

And while the required findings need not be entered at the same time as the grant of the continuance, see United States v. Brooks, 697 F.2d 517, 522 (3d Cir.1982), and cases cited there, here no findings were made until the judge denied Janik's motion to dismiss the case for violation of the Speedy Trial Act. That may well be too late. If the judge gives no indication that a continuance was granted upon a balancing of the factors specified by the Speedy Trial Act until asked to dismiss the indictment for violation of the Act, the danger is great that every continuance will be converted retroactively into a continuance creating excludable time, which is clearly not the intent of the Act.

While we do not suggest that it occurred here, the procedure followed in this case does contain the risk that a district judge in a particular case may simply rationalize his action long after the fact, in order to cure an unwitting violation of the Act. Moreover, had the district judge in this case stated at the time he initially set the trial date, before the speedy trial clock had run, that he was granting an ends-of-justice continuance, the parties would have been on notice and the whole Speedy Trial Act problem might have been avoided. As appellants point out, the Act itself requires consultation with counsel before setting the trial date. 18 U.S.C. Sec. 3161(a). If defense counsel had been prepared to go to trial in late July, as they now claim, they could have informed the judge that he was mistaken in concluding that they needed more time. If instead they had in fact needed the additional time to prepare adequately, in light of the unusual or complex nature of the case, it is similarly unlikely that any problem would have arisen. See 18 U.S.C. Sec. 3161(h)(8)(B)(ii). As matters stand, however, during the more than three-month gap between the initial setting of the trial date and the recording of findings neither side had reason to know that an ends-of-justice continuance had been granted. The July 6 Memorandum Decision and Order makes no reference to a continuance based on the ends of justice. Nor had any party requested that such a continuance be granted at that time. Cf. United States v. Rush, 738 F.2d 497, 507 (1st Cir.1984); United States v. Mitchell, 723 F.2d 1040, 1042-44 (1st Cir.1980). And the May 29 order of excludable time, highlighted by the government at oral argument, concerns only time already spent in preparation; it does not refer to the need for additional time beyond May 29. Defense counsel's consequent inability to respond until after the fact to the district court's assertion that they needed more time renders problematic the task of evaluating the court's ends-of-justice findings.

Accordingly, we conclude that time may not be excluded based on the ends-of-justice unless the district court indicates at the time it grants the continuance that it is doing so upon a balancing of the factors specified by section 3161(h)(8).5 We also adopt the position taken in other circuits that the precise reasons for the decision need not be entered on the record at the time the continuance is granted. See United States v. Brooks, supra, 697 F.2d at 522 (citing cases). A prospective statement that time will be excluded based on the ends of justice serves to assure the reviewing court that the required balancing was done at the outset. Moreover, it puts defense counsel on notice that the speedy trial clock has been stopped. If for any reason counsel believes that this is inappropriate, an objection may be raised and a record made at that time. In any event, a later recording of the precise findings required by the Act will in most cases provide the reviewing court with an adequate record for review. We emphasize, of course, that where possible "a court generally should make the findings required by section 3161(h)(8)(A) at the time it grants the continuance." United States v. Clifford, 664 F.2d 1090, 1095 (8th Cir.1981).

Recent cases in which courts of appeals have approved ends-of-justice continuances granted without contemporaneous findings are not to the contrary. The Third Circuit's decision in United States v. Brooks, supra, for example, approved precisely the sort of procedure that we require here. See 697 F.2d at 521-22. In Brooks, the district court indicated at the time it granted the continuance that it was doing so based on the ends-of-justice; it checked two boxes on a form that quoted from the ends-of-justice considerations listed in section 3161(h)(8)(B). Four months later, in response to defendants' motion to dismiss, the court set forth in detail its reasons for granting the continuance. The Third Circuit concluded that the contemporaneous statement of reliance on the ends-of-justice and the later detailed findings, taken together, were "sufficient to satisfy the 'reasons' requirement of the Speedy Trial Act." Id. at 522. See also United States v. Rush, supra, 738 F.2d at 507; United States v. Bryant, 726 F.2d 510, 511 (9th Cir.1984); United States v. Mitchell, supra, 723 F.2d at 1042-44.

The government acknowledges that defendants had no obligation to take affirmative steps to insure that they would be tried in a timely manner, United States v. Bufalino, 683 F.2d 639, 646 (2d Cir.1982), cert. denied, 459 U.S. 1104, 103 S. Ct. 727, 74 L. Ed. 2d 952 (1983). Its brief nonetheless contends that "the defense [should not] be allowed to indicate to the Government and the court that additional time is needed for preparation and, after such time is given, be allowed to claim his rights have been violated under the Speedy Trial Act." To the extent that this statement represents a charge concerning the defense tactics in this case, rather than merely a general proposition, it was effectively withdrawn at oral argument. In any event, the record contains no evidence indicating that defendants employed tactics calculated to "ensnare" the district court into allowing the seventy-day clock to run. See id. at 646. Accordingly, the indictment must be dismissed.

Section 3162(a)(2) provides that in deciding whether the indictment should be dismissed 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 [Act] and on the administration of justice." Though that decision is normally for the district judge in the first instance, see United States v. Janik, supra, 723 F.2d at 546, a remand for a hearing should not be routinely ordered in a case like this where the issue of whether dismissal should be with or without prejudice arises for the first time on appeal, the trial court having denied the motion to dismiss. The exercise of the informed discretion of the district judge is often helpful, but there is no need for a hearing in this case because we conclude that a decision to dismiss with prejudice would be an abuse of discretion. Cf. United States v. Caparella, 716 F.2d 976 (2d Cir.1983) (reversing decision to dismiss without prejudice). Even if seriousness of the crime is discounted, but see United States v. Russo, 741 F.2d 1264, 1267 (D.C.Cir.1984) (narcotics offense "serious" for purposes of Speedy Trial Act dismissal), the other three relevant factors listed in section 3162(a)(2)--the facts and circumstances of the case that led to dismissal, impact of a reprosecution on the administration of the Act, and impact of a reprosecution on the administration of justice--combine to require a ruling in favor of dismissal without prejudice.

Dismissal is ordered here without any determination that the elapsed time could not have been found to be within the allowable limits of the Speedy Trial Act. The error that occurred is non-compliance with a procedural requirement clarified for this circuit by today's decision. The only reasonable disposition under these circumstances is dismissal without prejudice. We would not serve the purposes of the Speedy Trial Act by precipitating a needless hearing with the risk of a further appeal if by chance the district court should dismiss with prejudice.

For the foregoing reasons, the judgments of conviction entered against appellants are reversed and the cases remanded to the district court with instructions to dismiss the indictment without prejudice.