UNITED STATES of America, Appellee, v. Andres JACOBO-ZAVALA, Appellant. United States of America, Appellee, v. Rafael Loeza-Gordillo, Appellant.
Nos. 00-1890, 00-2040
United States Court of Appeals, Eighth Circuit
Submitted: Oct. 23, 2000. Filed: Feb. 23, 2001.
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Third, we reject the Debtors’ contention that HUD impermissibly received greater than one hundred percent of its claim. The Debtors not only failed to object to confirmation of the plan on this basis, which means we would have to address the issue for the first time on appeal, but we are also not convinced that the present value of HUD‘s entitlement to twenty-five percent of any surplus cash and any net sale or refinancing proceeds of the properties clearly amounts to HUD receiving greater than one hundred percent of its claim. The present value of this entitlement would have to be reduced to account for the time value of money, the twenty-five percent stake appears to be in return for the reduced loan interest rate agreed to by HUD in the reorganization plan, and the Debtors even argued at the valuation hearing that the present value of all the payments to HUD (including the twenty-five percent stake) aggregated $58.3 million which is still less than HUD‘s $64.9 million claim. In short, this is a factual dispute between the parties reviewed for clear error, and the confirmed reorganization plan does not clearly and erroneously grant to HUD payments exceeding one hundred percent of its rightful claim.
Finally, we reject the remaining arguments of the Debtors because they are without merit or they were not raised properly in the courts below.
Based on the foregoing reasons, we affirm the district court‘s judgment upholding the bankruptcy court‘s decision accepting the proposed reorganization plan for the properties. The motions to dismiss Debtors’ appeal based on equitable mootness and for lack of standing are dismissed as moot.
Maria R. Moran, U.S. Atty‘s Office, Omaha, NE, for Appellee.
Julie A. Frank, Frank & Gryva, Omaha, NE, for Appellant.
Before WOLLMAN, Chief Judge, LAY, and BEAM, Circuit Judges.
WOLLMAN, Chief Judge.
I.
Police in Omaha, Nebraska, arrested Jacobo-Zavala and Loeza-Gordillo in the course of a controlled delivery of methamphetamine on October 11, 1998. A federal grand jury indicted Jacobo-Zavala for possession with intent to distribute methamphetamine in violation of
A few days before trial, the parties entered into an agreement whereby the federal indictments would be dismissed and the charges brought in Nebraska state court in exchange for the defendants’ guilty pleas. Both men would be subject to a mandatory five-year sentence, a significantly shorter prison term than would be possible under the federal sentencing guidelines. As a matter of courtesy, the prosecutor called the district judge to inform him of the agreement. No record exists of this conversation, and the parties acknowledge that their memories of the conversation are imperfect. The result of the conversation, however, is not in dispute. After telling the district judge that she intended to dismiss the federal indictments because the penalty in state court was, in her opinion, sufficient punishment for the defendants’ crimes, the Assistant United States Attorney was given to understand that the district court would not grant leave of court to dismiss the indictment because it did not consider the dismissal to be in the public interest. The case proceeded to trial, and the defendants were convicted.
The defendants then moved for a judgment of acquittal under
II.
The defendants contend that the district court abused its discretion when it refused leave to dismiss the indictment under
Noting that the “by leave of court” clause represents a departure from the common law tradition giving the executive complete control over whether to prosecute an indictment, the Supreme Court has observed that:
The words “leave of court” were inserted in
Rule 48(a) without explanation. While they obviously vest some discretion in the court, the circumstances in which that discretion may properly be exercised have not been delineated by this Court. The principal object of the “leave of court” requirement is apparently to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant‘s objection. But the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest.
Rinaldi v. United States, 434 U.S. 22, 29 n. 15, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977) (per curiam). Thus, courts have recognized two circumstances in which the district court may deny leave to dismiss an indictment: when the defendant objects to the dismissal, and when dismissal is clearly contrary to the manifest public interest. United States v. Gonzalez, 58 F.3d 459, 461 (9th Cir.1995); United States v. Hamm, 659 F.2d 624, 629 (5th Cir.1981); see also In re Richards, 213 F.3d 773, 786-87 (3d Cir.2000) (“refusal to dismiss is appropriate only in the rarest of cases“). Because the defendants in this case did not object to dismissal, it is the second basis that we must now consider.
A district court‘s discretion to deny leave is sharply limited by the separation of powers balance inherent in
As the Ninth Circuit recently observed, the question presented by a challenge to a district court‘s denial of leave to dismiss an indictment to which the defendant does not object is “whether, consistent with the separation of powers, the judiciary may encroach upon the right of the executive to make basic decisions as to who may be criminally charged, and with what they may be charged.” United States v. Garcia-Valenzuela, 232 F.3d 1003 (9th Cir.2000). Although the district court may take into account the public interest concerns created by dismissal of an indictment, it may not substitute its judgment for that of the prosecutor. Hamm, 659 F.2d at 631.
[The executive branch] retain[s] broad discretion to enforce the Nation‘s criminal laws. They have this latitude because they are designated by statute as the President‘s delegates to help him discharge his constitutional responsibility to “take care that the Laws be faithfully executed.”
U.S. Const. Art. II, § 3 . As a result, the presumption of regularity supports their prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.
United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996).
“The decision to dismiss an indictment implicates concerns that the Executive is uniquely suited to evaluate.” Gonzalez, 58 F.3d at 462. Because it is
Our views on the scope of a district court‘s discretion to deny a
In this case, the court did not act to protect the government against prosecutorial harassment. Nor was the Government‘s motion prompted by considerations clearly contrary to the public interest. The Government provided the court with an adequate and proper reason for dismissal: that the evidence needed for conviction had been lost or misplaced and the memories of key witnesses had faded. The court made no finding of bad faith on the part of the government. The reason proffered at least supports a dismissal under
Rule 48(a) , if indeed it does not require it.
Id. at 174-75 (citations omitted).
We recently emphasized the limited scope of a district court‘s discretion in ruling on a
Before considering the merits of the defendants’ contention that the district court erred in denying leave to dismiss the indictment, we must address the government‘s contention that because no
Whatever the precise wording of the conversation between the Assistant United States Attorney and the district court, it is clear that the prosecutor had decided to dismiss the indictments and that her decision not to do so was based solely on her understanding that leave of court would not be granted. The government acknowledges in its brief that it had arrived at an agreement with the defendants, and that its intention to dismiss the indictment was “discouraged” when “[t]he Court ... stated to the prosecutor what it was likely to do if such a motion were presented for the reasons stated.” (Appellee‘s Brief at 50.) That the district court‘s infringement on the exercise of the government‘s executive function did not take place in the context of a formal motion does not diminish that infringement. Given the centrality of the doctrine of separation of powers to the functioning of our government, we will not adopt a rule that
Nor does the language of
We turn then to the question whether the district court abused the narrow discretion granted it by
I think I was within my rights. I realize the prosecution has a great deal of discretion with regard to who it‘s going to prosecute and who it isn‘t. And I certainly don‘t want to get involved in that and that‘s not my intent. But I don‘t believe the reason advanced here was sufficient. Prosecutors take—U.S. Attorneys or Assistant United States Attorneys take an oath just like judges to uphold the law. And I don‘t believe that simply because if the stated reason was the only reason and the only one given to me was that the punishment was too severe for the acts involved ... that that‘s a valid reason. I don‘t consider that to be in the public interest. It might be a way to get rid of a whole lot of cases and prosecutions, but that‘s not why laws are passed. For those reasons I‘m denying it.
The district court further noted that, in its opinion, the defendants were no different from others who had been prosecuted in federal court for similar crimes and subjected to federal penalties.
It is clear from the reasons it expressed that the district court denied leave of court because it disagreed with the prosecutor‘s assessment of what penalty the defendants ought to face. The decision not to prosecute, however, is central to the executive power granted to United States Attorneys. There is no suggestion that the government acted in bad faith or had improper motives in attempting to dismiss the charges, and strategic decisions such as whether defendants ought to be tried in a federal forum are at the heart of the function of prosecution vested in the Executive Branch. Accordingly, we conclude that the district court overstepped its authority and abused its discretion when it withheld leave of court to file a dismissal of the indictment.
The judgment is reversed, and the case is remanded to the district court with directions to vacate the convictions and to grant leave to file a dismissal of the indictment.
BEAM, Circuit Judge, dissenting.
I agree with most of the court‘s analysis of existing precedent. However, I believe that applying this precedent to the circumstances of this case requires a different result.
It is true that because of the separation of powers doctrine we apply an attenuated standard when we gauge any abuse of discretion in the denial of a
There are no disputed matters in this case that traditionally fall under the control of the executive branch. Specifically,
The trial judge is also correct when he notes that prosecutors, like judges, are charged with upholding the law. The prosecutor‘s behavior in this case was the very antithesis of such a course of conduct. As I understand the facts, the prosecutor‘s reason for filing the dismissal motion was that she simply disagreed with federal sentencing law as it is applicable to the crimes in question. To thwart the impact of this existing law, she proposed a course of conduct that made less onerous state sentencing statutes applicable. Not only did this proposed action impinge upon federal judicial prerogatives, it also was intended to circumvent congressional policy directed toward these particular criminal defendants.
In my view, these prosecutorial maneuvers were clearly contrary to manifest public interest, see United States v. Gonzalez, 58 F.3d 459, 461 (9th Cir.1995), and denial of the motion to dismiss was well within the discretion of the district court. The district court should be affirmed.
Accordingly, I dissent.