What is the legal test for dismissing without prejudice?

It is beyond question that "[d]ismissal without prejudice is not a toothless sanction." Id. at 342. But it is equally doubtless that the sanction of dismissal with prejudice has more bite. See id. ("It is self-evident that dismissal with prejudice always sends a stronger message than dismissal without prejudice, and is more likely to induce salutary changes in procedures, reducing pretrial delays."). Although the less severe sanction "imposes some costs on the prosecution and the court," Zedner v. United States, 547 U.S. 489, 499, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006), "the prosecutor may of course seekand in the great majority of cases will be able to obtaina new indictment," id.; see also 18 U.S.C. 3288 (providing that even if "the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned ... within six calendar months of the date of the dismissal"). Consequently, "if the government suffers only dismissals without prejudice on motion of the defendant, it in effect gains successive 70day periods in which to bring the defendant to trial." Giambrone, 920 F.2d at 180.

[814 F.3d 83]