* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 98-50329

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANDREW CLYDE PARSONS,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

(W-97-CR-71-1)

May 19, 1999

Before REAVLEY, JOLLY, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM: *

Andrew Clyde Parsons appeals the district court’s denial of his motion to dismiss all charges

due to a violation of the Speedy Trial Act, 18 U.S.C. § 3161. We vacate and remand.

On May 13, 1997, a federal grand jury returned a ten-count indictment against Parsons,

relating to two separate arsons. On May 15, Parsons appeared before a magistrate judge. On June

10, the grand jury returned a superseding indictment, which altered the original indictment by both

increasing th e lo ss amount on two of the counts and including a forfeiture provision. The court

ordered the trial

for Parsons’s arsons to begin on August 25 — 101 day s after Parson appeared-2-

before the magistrate judge. On the morning of that day, Parsons filed a mo t ion to dismiss the

indictment due to a violation of the Speedy Trial Act. The district court denied the motion. A jury

convicted Parsons on all counts. Parsons has timely appealed.

W e review the factual findings supporting a Speedy Trial Act ruling using the clearly

erroneous standard and review the legal conclusions de novo

. See United States v. Grosz, 76 F.3d

1318, 1332 (5 th Cir.1996). The Speedy Trial Act generally requires that the trial of a defendant “shall

commence within seventy days from the filing date

. . . of the

. . . indictment, or from the date the

defendant has appear ed befo re a judicial officer of the court in which such charge is pending,

whichever date last occurs.” 18 U.S.C. § 3161(c)(1). The Government has conceded that Parsons

was not tried within seventy days of either his first appearance on the original indictment or the filing

of the superseding indictment.

The Gov ernment contends, however, that the district court’s order resetting the trial date,

after the return of the superseding indictment, should be construed as a continuance that tolled the

Speedy Trial Act clock. S ee 18 U.S.C. § 3161(h)(8) (excluding a delay from a continuance from the

seventy-day period). We are unpersuaded by the Government’s argument . The Government

concedes that the district court did not comply with the requirements of § 3161(h)(8). S ee id. (stating

that a delay from a continuance is not excludable unless the court sets forth in the record, either orally

or in writing, its reasons for finding that the ends of justice served by a continuance outweigh the best

interest of the public and the defendant in a speedy trial). We cannot regard the district court’s order

as sat isfying the Act’s “ends of justice” requirement. S ee United States v. Blackw ell, 12 F.3d 44, 46

(5 th Cir. 1994) (explaining that an “ends of justice” continuance requires on-the-record findings); cf.

United States v. Williams, 12 F.3d 452, 460 (5 th Cir. 1994) (declining to find that failure to articulate

reasons constituted reversible error where “the district court’s reasons for granting the continuance

are clear and justified”). Moreover, we disagree with the Government’s contention that dismissal is

inappropriate because Parsons did not alert the court of the Speedy Trial Act violation until the day

of trial. We do not find that the defendant has waived his rights under the Speedy Trial Act by failing-3-

to alert the court of such a violation pri o r t o t he expiration of the seventy-day time period. S ee

Blackw ell, 12 F.3d at 47 (stating that a defendant may not waive his right to a speedy trial).

Parsons was not brought to trial within seventy days, and thus dismissal is required. S ee 18

U.S.C. 3162(a)(2). We have stated that “the trial court is best suited to decide whether to dismiss

indictments with or without prejudice in light of a Spee dy Trial Act violation.” U nited States v.

Alford, 142 F.3d 825 , 830 (5 t h Cir. 1998) (citation omitted); see also 18 U.S.C. § 3162(a)(2)

(articulating factors that a court should consider in determining whether to dismiss the case with or

without prejudic e). We therefore VACATE and REMAND to the district court so that it may

determine whether the indictments should be dismissed with or without prejudice.