153 F. Supp. 3d 216
D.D.C.2015Background
- Four defendants (Borges, Greer, Jackson, Rich) were indicted in a superseding 18-count indictment for conspiracy and distribution of heroin and related offenses.
- FBI Special Agent Matthew Lowry was found with narcotics and evidence from other cases in his FBI vehicle; an investigation into his misconduct and evidence tampering followed.
- The Government informed the court that Lowry had participated significantly in seizures central to this case and moved to dismiss the indictment without prejudice because his involvement undermined the integrity of the prosecution.
- The Government represented at an ex parte hearing that it could not yet determine whether Lowry tampered with evidence in this case, but that his role could create reasonable doubt at trial.
- Defendants opposed a no-prejudice dismissal; the court found the continued threat of reprosecution would constitute harassment given the unique facts and declined to allow dismissal without prejudice.
- The court denied the Government’s Rule 48(a) motion and dismissed the indictment with prejudice to protect defendants from indefinite threat of reprosecution despite the Government’s good faith and Lowry’s later guilty plea and cooperation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Government may dismiss the indictment without prejudice under Rule 48(a) | Govt: dismissal without prejudice appropriate because ongoing investigation of agent misconduct may later allow reprosecution | Defs: leaving reprosecution possible would harass defendants and leave them under indefinite threat | Court: Denied dismissal without prejudice; dismissed with prejudice because allowing reprosecution would objectively amount to harassment |
Key Cases Cited
- United States v. Poindexter, 719 F. Supp. 6 (D.D.C. 1989) (dismissal without prejudice inappropriate where it would permit tactical delay and harassment)
- United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973) (Rule 48(a) prevents dismissal and reprosecution when used to gain tactical advantage)
- Rinaldi v. United States, 434 U.S. 22 (1977) (leave of court protects defendants from prosecutorial harassment)
- United States v. Salinas, 693 F.2d 348 (5th Cir. 1982) (Government may not use Rule 48(a) to obtain tactical advantage)
- United States v. Strayer, 846 F.2d 1262 (10th Cir. 1988) (leave requirement permits courts to consider public interest and judicial integrity)
- United States v. Fields, 475 F. Supp. 903 (D.D.C. 1979) (dismissal may be barred where dismissal would harass defendant)