United States v. B.G.G.United States v. B.G.G.
[PUBLISH]
Plaintiff-Appellant,
versus
Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Florida
Before WILSON, LUCK, and LAGOA, Circuit Judges.
The question in this case is whether the district court abused its limited discretion when it granted “leave” to dismiss the information against B.G.G. with prejudice. We conclude that it did. The district court did not presume the government moved to dismiss the information in good faith. It did not find bad faith by the government. It did not focus its analysis on whether the government‘s reasons for dismissal went to the merits or demonstrated a purpose to harass. And it did not dismiss the information without prejudice. Because of these errors of law, we vacate the dismissal order and remand for further proceedings.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The statute of limitations and rule 48(a)
Two statutes and two rules of criminal procedure are important to understanding the government‘s appeal. So we discuss them first before getting on to the facts.
The statute of limitations for prosecuting federal crimes provides that “no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.”
Whenever an indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment or information, or, in the event of an appeal, within 60 days of the date the dismissal of the indictment or information becomes final, or, if no regular grand jury is in session in the appropriate jurisdiction when the indictment or information is dismissed, within six calendar months of the date when the next regular grand jury is convened, which new indictment shall not be barred by any statute of limitations.
This case involves an information. For an information,
The information
In early 2020, the operation of the federal courts, like just about everything else in the United States and around the world, was disrupted by the COVID-19 pandemic. On March 26, 2020, the United States District Court for the Southern District of Florida suspended all grand jury sessions in response to the pandemic. See S.D. Fla. Admin. Order 2020-22. And, on August 11, 2020, the suspension was extended to January 4, 2021.1 See S.D. Fla. Admin. Order 2020-53.
The government gave a copy of the sealed information to B.G.G.‘s counsel on August 31, 2020. But B.G.G. refused to waive prosecution by indictment under
The government‘s motion to dismiss the information
In response to B.G.G.‘s refusal to waive prosecution by indictment, the government filed a proposed “order of dismissal.” The district court construed the proposed order as a
because of the grand jury suspension, and because of concerns about the statute of limitations expiring, it “institute[d]” the information “within the meaning of”
B.G.G. didn‘t oppose the government‘s motion to dismiss; rather, he agreed “that the information should be dismissed” because he didn‘t consent to it. “The only dispute in this case,” B.G.G. explained, was whether the information “should be [dismissed] with or without prejudice.”
B.G.G. contended that the district court should dismiss the information with prejudice. He maintained that the government had been investigating him since 2015 and could‘ve indicted him “well before” the March 2020 grand jury suspension. He also argued that the government could‘ve sought his indictment in another district that hadn‘t suspended the grand jury. And B.G.G. asserted that an information filed without the defendant‘s waiver of indictment was “meaningless” and couldn‘t “institute” the prosecution under
The district court declined to adopt the government‘s proposed dismissal order. The district court wrote that, although it intended to dismiss the information, the “fundamental issue” was whether the government‘s “tactical” use of
The district court acknowledged that the government was entitled to “substantial deference” in seeking to dismiss the information.
The government argued in its supplemental brief that a dismissal without prejudice was appropriate. The government was entitled to a presumption of good faith when it sought to dismiss an information, it argued, and B.G.G. had to show bad faith to overcome that presumption. The government maintained that it had not acted in bad faith, as reflected by the district court‘s finding that the government had not acted in bad faith. The government also had not harassed B.G.G., it said; rather, it had filed the information under seal to protect his reputation and had agreed that B.G.G. did not need to be formally arrested or even appear in court. The government argued that its intent to dismiss the information was not a “trick” or a “tactic,” but a way to “institute” the charge under
B.G.G. responded that the government‘s motion to dismiss the information was harassment because it was an attempt to get around the statute of limitations. B.G.G. argued that the government‘s admission that it had filed the information and sought its dismissal “to guard against the running of the statute of limitations” was a concession that the dismissal was tactical. Thus, B.G.G. maintained, the government had the burden to explain why a dismissal without prejudice was appropriate. B.G.G. argued that the government couldn‘t meet its burden for three reasons: (1) the government could‘ve indicted him sooner; (2) the government could‘ve indicted him in another district; and (3) he had been prejudiced by the delay because key witnesses had died or couldn‘t be located. Because the government‘s motion to dismiss amounted to harassment and was contrary to the public interest, B.G.G. urged the district court to dismiss the information with prejudice.
The district court‘s dismissal order
The district court dismissed the information with prejudice. It acknowledged that the government was generally entitled to a presumption of good faith in seeking to dismiss an information. This presumption could be overcome if the defendant showed that the government sought dismissal in bad faith, or if he showed that the government‘s failure to articulate its reasons for the dismissal prejudiced his ability to attack the government‘s motives. But the district court determined that the presumption of good faith wasn‘t “relevant to the case at hand” because the government had identified its reasons for the dismissal. So the district court didn‘t apply the presumption of good faith to the government‘s
The government, the district court wrote, couldn‘t use
The district court explained that a dismissal without prejudice would be an end-run around the statute of limitations, would violate B.G.G.‘s Fifth Amendment right to prosecution by indictment, and would be against the public interest. Although the district court didn‘t find that the government had sought the dismissal in bad faith, it found that the government was acting in a manner contrary to B.G.G.‘s rights to achieve a “tactical advantage.” This finding rested on the district court‘s conclusion that the five-year limitations period had expired because the sealed information was a “nullity.”2
The district court concluded that the five-year statute of limitations had expired because the information hadn‘t “instituted” the prosecution within the meaning of
First, the district court reasoned that it would be inconsistent with the Fifth Amendment and
The government appeals the dismissal with prejudice.
STANDARD OF REVIEW
We review an order dismissing an information under
The abuse of discretion standard is “extremely limited and highly deferential.” United Kingdom v. United States, 238 F.3d 1312, 1319 (11th Cir. 2001). The standard gives the district court a “range of choice,” provided that the choice does not constitute a “clear error of judgment.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation omitted). Where the district court has properly exercised its discretion, we cannot “substitute [our] discretion for that of the district court.” United States v. Diaz, 811 F.2d 1412, 1415 (11th Cir. 1987) (quotation omitted). But the abuse of discretion standard is not toothless. “A district court by definition abuses its discretion when it makes an error of law.” Koon v. United States, 518 U.S. 81, 100 (1996). In other words, a district court cannot properly exercise its discretion where it is “guided by erroneous legal conclusions.” Id.
The government argues that the district court abused its discretion in dismissing the information with prejudice under
We begin by explaining the district court‘s limited role when the government moves to dismiss an information before trial under
Rule 48(a)‘s “leave of court” requirements
“The Supreme Court has repeatedly reaffirmed the principle—which dates back centuries—that the [e]xecutive [b]ranch has exclusive authority and absolute discretion to decide whether to prosecute a case.” In re Wild, 994 F.3d 1244, 1260 (11th Cir. 2021) (en banc) (quoting United States v. Nixon, 418 U.S. 683, 693 (1974)). The “core” or “essence” of prosecutorial discretion is “the decision whether or not to charge an individual with a criminal offense in the first place.” Id.
This core discretion also includes the decision whether to dismiss a prosecution. As the former Fifth Circuit explained, the executive branch “remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated.” United States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975).
The judiciary has a role to play when the government seeks to dismiss a prosecution—but it‘s a limited one. See United States v. Bernard, 42 F.4th 905, 908 (8th Cir. 2022) (“[A]lthough the district court has some discretion in this area, it is sharply limited by the separation of powers balance inherent in [r]ule 48(a).” (quotation omitted)). The “Supreme Court has declined to construe [r]ule 48(a)‘s ‘leave of court’ requirement to confer any substantial role for courts in the determination whether to dismiss charges.” United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016). The “principal object of the ‘leave of court’ requirement,” the Supreme Court has said, is to “protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the [g]overnment moves to dismiss an indictment over the defendant‘s objection.” Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977); see also United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (“The purpose of [rule 48(a)] is to prevent harassment of a defendant by charging, dismissing and re-charging without placing a defendant in jeopardy.“).
Over the years, we have set out the requirements under
Second, “leave” may be denied where the good-faith presumption has been overcome by a finding that the government sought the dismissal in bad faith.4 Dyal, 868 F.2d at 429. A defendant can rebut the presumption of good faith “in response to the government‘s motion to dismiss the original prosecution or via his own motion to dismiss a subsequent indictment” by demonstrating that the government sought dismissal under
Third, the focus of the bad faith analysis must be on the government‘s reasons for dismissing the information. See id. at 426–28 (discussing the government‘s “presumption of good faith in seeking dismissal“); Matta, 937 F.2d at 568 (explaining that bad faith
turns on the “government‘s reason for seeking dismissal of the . . . indictment“). The Supreme Court‘s decision in Rinaldi shows this requirement in action.
The defendant in Rinaldi robbed a hotel and was charged with robbery both in federal and state court. 434 U.S. at 23. The defendant was convicted of the state charges and sentenced to six years in prison. Id. His “subsequent federal trial ended in a mistrial.” Id. at 23–24. After the mistrial, the district court questioned why a retrial was necessary given the state conviction and sentence. Id. at 24. Counsel for the government responded that “he had been instructed by his superiors at the Department of Justice to pursue the federal prosecution vigorously because of their concern that the state convictions might be reversed on appeal.” Id. The defendant was convicted in the federal case after a second trial. Id.
On appeal, the defendant argued that his conviction violated the Department of Justice‘s Petite policy,6 “a longstanding
Id. at 24–25. The district court denied the motion, finding that the government had acted in bad faith in representing, after the federal mistrial, that the Department of Justice had authorized the federal prosecution. Id. at 25. Both the government and the defendant appealed, and the former Fifth Circuit, sitting en banc, held that the government‘s “unclean hands“—its representations after the mistrial—justified the district court‘s denial of the
But the Supreme Court explained that “[t]he salient issue” was “not whether the decision to maintain the federal prosecution was made in bad faith but rather whether the [g]overnment‘s later efforts to terminate the prosecution were similarly tainted with impropriety.” Id. at 30. The Supreme Court held that the district court erred in denying the government‘s
Fourth, if the defendant has overcome the presumption of good faith, the district court must still dismiss the information “if the reason for dismissal does not go to the merits or demonstrate a purpose to harass.” Matta, 937 F.2d at 568. That is the ultimate test the district court must apply in exercising its limited discretion to grant or deny “leave” to dismiss an information under
Fifth and finally, if the district court grants “leave” to dismiss the information, the “rule 48(a) dismissal[] [is] without prejudice” because it does not bar a future prosecution on the same charges. Id. at 568–69. As the former Fifth Circuit explained in United States v. Davis, 487 F.2d 112 (5th Cir. 1973), “[i]t is true that [r]ule 48(a) states that a United States Attorney may, by leave of court, file a dismissal of an indictment and the prosecution shall thereupon terminate.” Id. at 118 (quoting United States v. Chase, 372 F.2d 453, 463–64 (4th Cir. 1967)). “[B]ut,” the Davis court explained, “the authorities are replete that such a dismissal is without prejudice.” Id. (quoting Chase, 372 F.2d at 463). “It is precisely because a dismissal under [r]ule 48(a) does not bar a subsequent prosecution that the rule requires the consent of the court.” Id. (emphasis added).
The former Fifth Circuit reached the same conclusion in United States v. Pitts, 569 F.2d 343 (5th Cir. 1978). There, the defendant was charged with interstate transportation of a stolen vehicle but, with the district court‘s leave, the government dismissed the original indictment under
For five reasons, the district court did not follow the “leave of court” requirements for exercising its limited discretion under
1.
First, the district court erred in refusing to apply the presumption of good faith to the government‘s
But the presumption of good faith applies when the government seeks dismissal under
Cowan as an example. There, the former Fifth Circuit applied the presumption of good faith even where, as here, the government gave its reasons for seeking dismissal. See Cowan, 524 F.2d at 514.
In Cowan, the defendant was indicted in Texas for fraud and for making a false statement to the grand jury. Id. at 506. Then, the defendant and the “Watergate Special Prosecution Force” negotiated an agreement where the defendant agreed to plead guilty in the District of Columbia to bribery in a separate case. Id.. The plea agreement required the defendant to disclose “all relevant information and documents within [his] knowledge and possession concerning matters then under investigation by the Watergate Special Prosecution Force,” and, if necessary, to testify in any cases arising out of the Watergate investigation. Id.. In exchange, the government agreed to dismiss the Texas indictment. Id.. The government‘s
The former Fifth Circuit concluded that the district court abused its discretion in denying the government‘s
Cowan, in other words, applied the presumption of good faith even though the government had given “substantial reasons” for the dismissal. See id. That is what the district court had to do here: apply the presumption of good faith to the government‘s
The dissenting opinion says that our reading of the district court‘s order—that
And we think our reading is fair given that the district court never found that the presumption had been overcome. Surely the district court would have found the presumption had been overcome, as it was required to do under
2.
Second, the district court didn‘t require B.G.G. to overcome the presumption of good faith by showing that the government sought the dismissal in bad faith. Requiring the defendant to overcome the presumption of good faith, the district court concluded, was not “relevant to the case at hand.” But a finding of bad faith was required to overcome the presumption of good faith. See Matta, 937 F.2d at 568 (“To overcome the presumption of good faith, the defendant must show that the initial dismissal was in bad faith . . . .“); Dyal, 868 F.2d at 428-30 (reversing dismissal of indictment because the defendant “failed to rebut th[e] presumption of good faith” and he failed to “adequately demonstrate[]” bad faith). Here, the district court never made the critical bad-faith finding because it believed that overcoming the good-faith presumption was irrelevant.
The dissenting opinion concedes that the district court “did not explicitly find that the good-faith presumption was rebutted.” Dissenting Op. at 6. That should be the end of it, but no matter, the dissenting opinion says, because the district court “made” the bad-faith finding “implicitly.” Id. Sometimes a finding can be implied from a district court‘s order. But a finding cannot be implied when it is contrary to the district court‘s explicit findings, as it is here. The district court explicitly found that it “d[id] not question the subjective good faith of the prosecutor.” How can an implicit finding of bad faith be consistent with an explicit finding that there were no questions about the government‘s good faith, as the dissenting opinion asserts? It isn‘t. They aren‘t consistent. They are inconsistent. Which is why we can‘t imply bad faith here.
The dissenting opinion offers three reasons for why it ignores the district court‘s explicit good-faith finding. First, it says, the good-faith finding is in a non-final and non-appealable order. Id. at 7. But we know of no rule or case that would allow us to ignore a district court finding because it‘s in a non-final, interlocutory order. And, even if there was such a rule or case, the explicit good-faith finding was not non-final and non-appealable. “When a district court enters a final judgment all prior non-final orders and rulings which produced the judgment are merged into the judgment and subject to review on appeal.” Akin v. PAFEC Ltd., 991 F.2d 1550, 1563 (11th Cir. 1993) (quotation omitted; emphasis added). That‘s what happened here. The good-faith finding was final and appealable because it merged—like all of the district court‘s prior orders—into the final dismissal order.
Second, the dissenting opinion says that the explicit good-faith finding was in a “case management order.” Dissenting Op. at 7. Again, we know of no rule or case that would allow us to ignore a district court finding because it‘s in a case management
Third, the dissenting opinion says that the district court limited its explicit good-faith finding to “at [the] time” of the district court‘s order. Id. at 7. But that‘s not what the district court found. The district court found that it “d[id] not question the subjective good faith of the prosecutor.” The district court did not add, as the dissenting opinion does, “for right now” or “until we get more information.” The district court didn‘t question the government‘s good faith—period. And the final order of dismissal never retracted, revised, or receded from this explicit good-faith finding. We cannot ignore the explicit good-faith finding that the district court actually made for an inconsistent implicit finding that the district court never made.
The dissenting opinion then shifts gears and finds on its own “that the government‘s conduct amounted to harassment,” id. at 7, even though the district court found no more than that the government‘s motivation for filing the information “arguably” fell within the definition of harassment. While we can affirm for any reason supported by the record, as the dissenting opinion says we should, “[i]t is not an appellate court‘s role to find facts.” United States v. Barnette, 10 F.3d 1553, 1558 (11th Cir. 1994). “That is a function of the district courts.” Id. “If [the dissenting opinion] believe[s] that the [d]istrict [c]ourt . . . failed to make findings of fact essential to a proper resolution of the legal question,” the remedy is to “remand[] to the [d]istrict [c]ourt to make those findings.” See Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986). “[I]t should not,” as the dissenting opinion does, “simply have made factual findings on its own.” See id.
3.
Third, the district court erred in focusing its
But devoting considerable attention to the reason why the government filed the information missed the mark. The
The dissenting opinion says that this case is different from Rinaldi because, unlike that case, “the government‘s reason for filing and dismissing the information was one and the same.” Dissenting Op. at 8-9. But that‘s not what the district court found. As to filing the information, the district court found that the government‘s “sole motivation” “was to preserve the availability to proceed with criminal charges against the [d]efendant in the future.” As to dismissing the information, the district court found that the government moved to dismiss it “[b]ecause” B.G.G. “declined to waive his right to indictment by a grand jury and consent to proceed by way of [i]nformation.” And the district court found, again, that “[b]ecause [B.G.G.] w[ould] not consent to proceed by way of [i]nformation, the [g]overnment request[ed] dismissal without prejudice.” The dissenting opinion believes that the “filing and the dismissal [were] inextricable,” id. at 9, but that‘s not what the district court found. The government‘s reasons for filing and dismissing the information, the district court found, were not the same.
The dissenting opinion concedes that “the district court needn‘t have . . . discussed the government‘s reasons for filing the information” and, instead, points to a few stray references in the district court‘s order to the government‘s reasons for dismissal and says that‘s enough. Id. at 10. But it‘s not. If we ignored the parts of the district court‘s order discussing the government‘s reasons for filing the information, there wouldn‘t be much of an order left. That‘s because, as the district court explained, it “devote[d] considerable attention” to “whether the [g]overnment ‘instituted’ the unconsented [i]nformation by filing it with the [c]ourt.” And the district court was true to its word. Its considerable attention went on for thirteen pages (out of less than twenty) explaining why, under
4.
Fourth, the district court erred in failing to apply the ultimate test in deciding whether to grant “leave” to dismiss the information: where the defendant has overcome the presumption of good faith, an information “will be dismissed” “if the reason for dismissal does not go to the merits or demonstrate a purpose to harass.” Matta, 937 F.2d at 568. Here, the district court didn‘t find that B.G.G. had overcome the presumption of good faith. It didn‘t find that the government‘s reason for the dismissal went to “the merits” of the information. See id. And it didn‘t find that the reason for the dismissal demonstrated a purpose to harass B.G.G. At best, the district court found that the government‘s purpose in filing the information—not in moving to dismiss it—“arguably” was harassment. But that‘s not the ultimate test for granting “leave” under
5.
Fifth and finally, the district court erred in dismissing the information with prejudice. The government sought “leave to dismiss the information without prejudice” and argued that the district court
The district court, in exercising its limited discretion, must decide whether to grant “leave” or deny it after following the
The dissenting opinion quotes the dicta in Matta—that “[g]enerally, unless a contrary intent is clearly expressed,
When Matta said “unless a contrary intent is clearly expressed,” it was referring to the government‘s clearly expressed contrary intent. Recognizing that the government is the “first” and “the best judge of whether a pending prosecution should be terminated,” Cowan, 524 F.2d at 513, the text of
government—and not the court—the discretion to seek dismissal of an information (or indictment). The rule couldn‘t be clearer: “[t]he government may . . . dismiss an indictment, information, or complaint.”
Because the government is the only party allowed under
The district court‘s role is a limited one. After complying with the
The dissenting opinion never really grapples with the text of
Of course these aren‘t the district court‘s only options under the Constitution, the U.S. Code, the Federal Rules of Criminal Procedure, and the court‘s inherent powers. But this case is not about the broad menu available to the district court to address bad faith. It is about the sharply limited role the courts play in the separation of powers balance inherent in
The dissenting opinion clearly believes that what the government did in this case was unfair. See, e.g., Dissenting Op. at 1, 2 n.1, 7, 11 (describing what the government did as “concocted,” “unheard of,” “harassment,” and a “singular bad-faith gambit“). But “[e]ven if we agree that [a rule] allows for harsh or unfair consequences, that does not give us license to ignore the plain meaning of the text.” Highpoint Tower Tech. Inc. v. Comm‘r of Internal Revenue, 931 F.3d 1050, 1060 n.8 (11th Cir. 2019) (first alteration in original; quotation omitted).
* * * * *
The “district court abuses its discretion” where it “applies the law in an . . . incorrect manner” and “follows improper procedures in making a determination.” United States v. Green, 873 F.3d 846, 854 (11th Cir. 2017) (quotation omitted). That is what happened here. The district court did not follow the
CONCLUSION
Although “a dismissal under [r]ule 48(a) does not bar a subsequent prosecution,” it also “does not impair the protection afforded by the statute of limitations.” Davis, 487 F.2d at 118. If the grand jury later indicts B.G.G., he can still raise a statute of limitations defense. We do not pass on the statute of limitations issue today and do not determine whether the sealed information was instituted within the meaning of
VACATED AND REMANDED.
WILSON, Circuit Judge, Dissenting:
Amidst the COVID-19 pandemic, some districts, including the Southern District of Florida, imposed a temporary grand jury moratorium. With the moratorium in place, prosecutors in the Southern District of Florida worried that they would be unable to charge Defendant B.G.G. with two alleged felony offenses within the five-year statute of limitations. The statute of limitations was set to expire on August 31, 2020, and the grand jury moratorium was to extend at least through November of that year. Because the charged offenses were felonies, B.G.G. had a constitutional right to a grand jury indictment. See Stirone v. United States, 361 U.S. 212, 215 (1960). Only if he waived that right could the government proceed without convening a grand jury and charge him by information.
But prosecutors concocted what they hoped was a workaround. Just before the statute of limitations would expire, the government would file an information that it never expected to be viable for prosecution. After the statute of limitations expired, the government would move for dismissal of the information without prejudice. By doing so, the government thought, it could take advantage of a seldom-used statute,
The government put that theory to the test here. On August 28, 2020, it filed an information charging B.G.G. with two felony counts. Three days later, on the very date the five-year statute of limitations was set to expire, the government served the information on B.G.G. at 6:33 p.m. The next day, the government moved to dismiss
The district court, however, saw through the government‘s ploy. It granted the government‘s motion in part, but only with prejudice—as B.G.G. requested. In its order, the court took the government to task for attempting “an end-run around the statute of limitations” in contravention of the defendant‘s rights. In my view, the district court reached the right result.
The parties mostly agree as to the controlling law in our circuit. Under
We have explained that the government acts in bad faith by seeking dismissal “to achieve a tactical advantage in derogation of the defendant‘s rights or for the purpose of harassment.” United States v. Dyal, 868 F.2d 424, 429 (11th Cir. 1989). And one form of prosecutorial harassment is “charging, dismissing, and recharging . . . over the defendant‘s objection.” Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977) (per curiam); see also United States v. Salinas, 693 F.2d 348, 353 (5th Cir. 1982) (explaining that “prosecutorial harassment involves charging, dismissing, and subsequently commencing another prosecution at a different time or place deemed more favorable to the prosecution“). When the defendant demonstrates that the initial dismissal was in bad faith and for the purpose of harassment, the government is not entitled to dismissal without prejudice. See Matta, 937 F.2d at 568.
That is what happened here. The government‘s purpose, plain and simple, was “to achieve a tactical advantage in derogation of [B.G.G.‘s] rights.” Dyal, 868 F.2d at 429. So, by definition, the government acted in bad faith. Moreover, the government‘s plan to “charg[e], dismiss[ ], and recharg[e] [B.G.G.] . . . over [his] objection” is exactly what the Supreme Court has labeled harassing conduct. Rinaldi, 434 U.S. at 29 n.15. The district court thus correctly dismissed the information with prejudice.
Yet the majority reverses the district court, offering five reasons to support its decision: (1) the district court failed to apply the good-faith presumption; (2) the district court made no finding of bad faith to rebut the good-faith presumption; (3) the district court improperly focused on the government‘s reasons for filing the information rather than its reasons for seeking dismissal; (4) the district court never made a finding that the government‘s reason for seeking dismissal went to the merits of the information or that its purpose was to harass the defendant; and (5) under binding precedent,
First off, I disagree that the district court failed to apply the presumption of good faith. As the majority acknowledges, the district court stated plainly that “the government is entitled to a presumption of good-faith.” Then, in a footnote, the court described how that rule works in a case where the government failed to state its reasons for dismissal. In such a case, a defendant can rebut the good-faith presumption by showing: (1) bad faith or (2) that he was prejudiced in his ability to attack the prosecution‘s motives.
In this case, however, the government had given its reasons for dismissal. So, the district court concluded that this rule was irrelevant. Here‘s what the district court said in the footnote:
To overcome the presumption of good faith in cases where the government has failed to articulate any reason or factual basis for dismissal in the [r]ule 48(a) motion or proposed order, the defendant must show that “(1) the [] dismissal was in bad faith, or (2) that the defendant has been prejudiced in his ability to attack the prosecutor‘s motives due to the trial court‘s failure to require submission of adequate reasons . . . .” [Dyal, 868 F.2d at 428] (internal quotation marks omitted); see also Matta, 937 F.2d at 568. In the instant case, the Government has identified the reason it seeks a [r]ule 48(a) dismissal in its proposed Order of Dismissal; therefore, I do not find this rule relevant to the case at hand.
The majority reads this footnote differently. It casts the district court as having “determined that the presumption of good faith wasn‘t ‘relevant to the case at hand.‘” Maj. Op. at 9 (emphasis added). I don‘t think that‘s a fair reading of the footnote. All the district court said was that a rule telling us what happens when the government does not give its reasons for dismissal is irrelevant where the government does give its reasons for dismissal. The final sentence of the footnote limits the district court‘s remark about relevancy to “this rule,” which in context naturally refers to the rule described in the sentence immediately prior. It would have been curious indeed for the district court to state the good-faith presumption above the line, only to find it irrelevant below the line. In context, that‘s not what the district court did.
Of course, the majority also disputes that the district court ever found the government to be seeking dismissal in bad faith. But I read the district court‘s order differently. Although the order did not explicitly find that the good-faith presumption was rebutted, it made that finding implicitly. Time and again, we have held that we can “infer[ ] from a district court‘s explicit factual findings and conclusion implied factual findings that are consistent with its judgment although unstated.” United States v. $242,484.00, 389 F.3d 1149, 1154 (11th Cir. 2004) (en banc); see also United States v. Watkins, 13 F.4th 1202, 1213-14 (11th Cir. 2021) (collecting cases).
Here, when the district court found that the government‘s use of
The district court‘s finding about the government‘s tactical motives and its finding disagreeing with the government‘s characterization of its own motives are entitled
The majority opinion claims that the district court “explicitly found” the government acted in good faith. Maj. Op. at 22. Not so. The only citation for this “finding” is to the district court‘s order requesting supplemental briefing from the parties. To the extent that the district court‘s statement in a non-appealable, non-final case management order shows anything, it shows only that the district court did not “question[]” the government‘s good faith at that time. Following that order, the district court received two supplemental briefs as well as an hour of oral argument. With the benefit of that information, the district court‘s final order dismissing the case with prejudice reflected the implicit finding of bad faith I described above.
As explained above, the purpose of the “leave of court” requirement is “to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the Government moves to dismiss . . . over the defendant‘s objection.” Rinaldi, 434 U.S. at 29 n.15. Is there any set of facts that better fits this definition? The district court found—and the record supports—that the government sought “to charge, dismiss, and recharge at a different time or place deemed more favorable to the prosecution.” As the district court observed, the government has been transparent about its aim: to charge B.G.G., dismiss the charges, and then to recharge, to avoid the running of the statute of limitations. I recognize that the district court hedged its finding by calling the government‘s conduct “arguably” harassment. But because the record emphatically supports the district court‘s implicit finding that the government‘s conduct amounted to harassment, as the Supreme Court has defined that term, the district court‘s order should be affirmed. Chitwood, 676 F.3d at 975.
I am equally unpersuaded by the majority‘s contention that we should reverse because the district court improperly focused on whether filing the information, rather than dismissing it, was a tactical move. The majority is correct that in Rinaldi the Supreme Court held that what mattered was “not whether the decision to maintain the federal prosecution was made in bad faith but rather whether the Government‘s later efforts to terminate the prosecution were similarly tainted with impropriety.” 434 U.S. at 30. And in that case, the government‘s reasons for terminating the prosecution were not “clearly contrary to manifest public interest.” Id.
There are two critical differences here. First, unlike in Rinaldi, the government‘s reason for filing and dismissing the information was one and the same. The government had a singular aim: to extend the statute of limitations. The majority isolates the district court‘s finding that the government dismissed the case “because” B.G.G. did not consent to proceed without an indictment. Maj. Op. at 26. But this misses the forest for the trees. The filing and the dismissal are inextricable. Without the filing there can be no dismissal and without dismissal the government cannot extend
Second, and more fundamentally, the district court did not ignore the prosecution‘s reason for dismissing the information. Rather, the district court discussed both the reason for filing and for dismissing the information. The district court‘s order stated, for example, that “by seeking dismissal on September 2, 2020—two days after the statute of limitations expired—the Government ensured that its proposed Order of Dismissal would be entered at a time that would toll the limitations period . . . .” It was “no mystery,” the court went on, “that the Government strategically timed its filing of the Information and Order of Dismissal ‘to protect against the running of the statute of limitations’ in light of the Southern District of Florida‘s temporary suspension of grand juries due to the coronavirus pandemic.” The court reiterated that the government “move[d] for the relief of dismissal without prejudice in order to extend the statute of limitations.” And the court made clear that “[a]llowing such tactics, wherein the Government seeks dismissal of the Information solely to safeguard its ability to charge Defendant at a later date, would not serve the strong public interest of upholding statutory and constitutional protections.” I could go on.
True, the district court needn‘t have also discussed the government‘s reasons for filing the information. In this particular instance, doing so clearly highlighted the reasons for terminating the case. Regardless, the district court made the requisite findings regarding the government‘s reasons for seeking dismissal, and the record supports those findings. As a result, there is no basis for reversal here.
The majority compares page counts and faults the district court for discussing “why, under
The framing of [the
section 3282 ] inquiry in the context of a [r]ule 48 dismissal is unusual. . . . [H]owever, in furtherance of its strategy, the Government moves for the relief of dismissal without prejudice in order to extend the statute of limitations. . . . Were I to grant the Government‘s request, I would enable and invite an action I believe to be unlawful. Dismissal without prejudice would also be futile given my finding that, as a matter of law, the statute of limitations has expired. But for [r]ule 48 and§ 3288 , I would have simply ignored the Information as a nullity.
The fact that the initial filing was a legal nullity and insufficient to “institute” a prosecution under
The majority offers a final purported rationale for reversal: that a pair of old Fifth Circuit cases dictates that dismissal should not have been with prejudice. See United States v. Davis, 487 F.2d 112, 118 (5th Cir. 1973); United States v. Pitts, 569 F.2d 343, 347 (5th Cir. 1978). The majority cites these cases for the proposition that a
And in cases following Pitts and Davis, we have made clear that: “Generally, unless a contrary intent is clearly expressed,
The majority contends, ”Matta . . . is referring to the government‘s clearly expressed intent.” (emphasis added) However, this is contradicted by the posture of Matta, Pitts, and Davis. All three cases were appeals from second prosecutions, and denials of the defendants’ motions to dismiss the second prosecutions. These cases only arose because the original
prejudice. See, e.g., Pitts, 569 F.2d 346 n.3 (“[I]n the formal order, issued from the bench, the indictment was not dismissed with prejudice.“). Thus, the district courts presiding over the second prosecutions were forced to decide whether the ambiguous
Reading Matta as the majority does creates a Catch-22 repugnant to the constitutional protections afforded criminal defendants. Under the majority‘s reasoning, the district court has two options: it “may give the government permission to dismiss . . . on the terms it sought, or the court can withhold permission.” Maj. Op. at 30. If the district court properly finds bad faith on the part of the government, then the only option, under the majority‘s reasoning, is to deny the government‘s motion to dismiss and continue the prosecution. But in a case like this, the information must be dismissed because the defendant did not consent to be tried without an indictment. What is the district court to do? If on the one hand it refuses to dismiss and keeps the prosecution ongoing, it subjects the criminal defendant to jeopardy in spite of their Fifth Amendment right to be tried by grand jury indictment. If on the other hand it dismisses the case without prejudice, the court rewards the government‘s
(1967) (condemning a North Carolina criminal procedure that allowed the state prosecutor to enter a nolle prosequi and toll the statute of limitations indefinitely as a derogation of the Sixth Amendment‘s Speedy Trial guarantee).
It remains to be seen whether the government‘s gambit will pay off. As the majority recognizes, B.G.G. will be free to challenge any forthcoming indictment based on the statute of limitations. But for the reasons I‘ve explained, it shouldn‘t come to that. There is no question that the government sought to dismiss the information to achieve a tactical advantage in derogation of B.G.G.‘s rights—the very definition of bad faith in this context. See Dyal, 868 F.2d at 429. And the government‘s plan to “charg[e], dismiss[ ], and recharg[e]” B.G.G. is the exact conduct the Supreme Court has said constitutes harassment in this context. See Rinaldi, 434 U.S. at 29 n.15.
Pandemic or not, the district court was right to root out these corner-cutting tactics. As the Supreme Court recently reminded us, “[i]f men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.” Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021). I respectfully dissent.