53 F.4th 1353
11th Cir.2022Background:
- In March–August 2020 the Southern District of Florida suspended grand juries because of COVID-19; the five‑year statute of limitations on the charged felonies expired August 31, 2020.
- The government filed a sealed two‑count information against B.G.G. on August 28, 2020 and served defense counsel on August 31; B.G.G. refused to waive indictment under Fed. R. Crim. P. 7(b).
- The government moved under Fed. R. Crim. P. 48(a) to dismiss the information without prejudice so it could later obtain an indictment and rely on 18 U.S.C. § 3288’s post‑dismissal tolling window once grand juries resumed.
- The district court granted dismissal but did so with prejudice, concluding the information was a legal nullity and that the government’s tactic amounted (at least arguably) to harassment and an end‑run around the statute of limitations.
- The government appealed; the Eleventh Circuit vacated and remanded, holding the district court misapplied Rule 48(a) — it failed to apply the presumption of governmental good faith, did not make required bad‑faith findings, focused on motives for filing rather than motives for dismissing, and improperly dismissed with prejudice.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the district court abuse its discretion by dismissing the information with prejudice under Rule 48(a)? | The court misapplied Rule 48(a): it should presume government good faith, require findings of bad faith to deny leave, and (if leave is granted) the dismissal is without prejudice. | The government filed and sought dismissal as a tactical ploy to toll the limitations period; dismissal with prejudice is warranted to prevent prosecutorial harassment. | Vacated: court abused its discretion. Appellate court requires presumption of good faith, a finding of bad faith to overcome it, and—if leave is granted—dismissal generally must be without prejudice. |
| Whether filing an unconsented information "instituted" a prosecution for purposes of 18 U.S.C. § 3282/§ 3288 tolling. | Filing an information before the limitations date constituted institution and allows § 3288 tolling after dismissal. | An unwaived information is a nullity and cannot ‘‘institute’’ prosecution or toll the statute. | Not decided on appeal; Eleventh Circuit remanded for further proceedings and left the § 3282/§ 3288 question open. |
| May a district court convert a government’s motion to dismiss without prejudice into a dismissal with prejudice? | The court lacks authority to rewrite the government’s dismissal terms; Rule 48(a) permits the government to seek dismissal and the court merely grants or denies leave. | A court may dismiss with prejudice to stop bad‑faith prosecutorial tactics and protect defendants. | Held for appellant: absent a clearly expressed contrary intent by the government, a Rule 48(a) pretrial dismissal granted by the court is without prejudice; the court abused its limited role by dismissing with prejudice. |
| Which motives matter for the Rule 48(a) bad‑faith inquiry—reason for filing the charge or reason for seeking dismissal? | The relevant inquiry is the government’s reason for seeking dismissal (not the motives for initially filing). | The filing and dismissal motives are intertwined here and the filing shows the government’s tactical scheme. | Held for appellant: the district court erred by focusing on the government’s motives for filing; the bad‑faith inquiry must target the reasons for seeking dismissal. |
Key Cases Cited
- Rinaldi v. United States, 434 U.S. 22 (1977) (leave protects defendants from prosecutorial harassment such as charging, dismissing, and recharging)
- United States v. Dyal, 868 F.2d 424 (11th Cir. 1989) (government entitled to presumption of good faith in Rule 48(a) dismissals; defendant must show bad faith)
- United States v. Matta, 937 F.2d 567 (11th Cir. 1991) (if presumption is overcome, dismissal is allowed only if reason does not go to merits or show harassment; dismissals generally without prejudice)
- United States v. Cowan, 524 F.2d 504 (5th Cir. 1975) (executive is first judge of whether to terminate prosecution; presumption of good faith applies even when reasons are articulated)
- United States v. Davis, 487 F.2d 112 (5th Cir. 1973) (Rule 48(a) dismissals are without prejudice and do not bar later prosecution)
- United States v. Pitts, 569 F.2d 343 (5th Cir. 1978) (same principle regarding re‑prosecution after a Rule 48(a) dismissal)
- Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967) (limited judicial review of prosecutorial dismissal decisions)