The United States Attorney may move for leave of court to dismiss an indictment or information, in whole or part, without prior authorization from the Criminal Division except in the instances enumerated in JM 9-2.145. The United States Attorney may in any case request the views of the Criminal Division as to the dismissal of any indictment or information. Prior to dismissing an indictment the United States Attorney should consult with the referring department or agency, and also seek to obtain the views of the investigative agency involved in the matter.

Whenever the United States Attorney concludes that a dismissal is warranted, he should take prompt action to dismiss. However, an indictment should not be dismissed merely because the defendant is a fugitive.

Rule 48(a), Fed. R. Crim. P., requires leave of court for dismissal of an indictment or information by the United States Attorney. A dismissal by the United States Attorney may not be filed during the trial without the consent of the defendant. See Fed. R. Crim. P. 48(a). The court may decline leave to dismiss if the manifest public interest requires it. See Rinaldi v. United States, 434 U.S. 22 (1977); United States v. Gonzalez, 58 F.3d 459 (9th Cir.1995); United States v. Welborn, 849 F.2d 980 (5th Cir.1988); United States v. Hamm, 659 F.2d 624 (5th Cir.1981)(and cases therein).

In moving for leave to dismiss, the local practice should be followed. However, in cases of considerable public interest or importance where dismissal of the entire indictment or information is sought because of an inability to establish a prima facie case, a written motion for leave to dismiss should be filed explaining fully the reason for the request. The importance of the case is not to be measured simply by the punishment prescribed for the offense. If the case involves fraud against the government, bribery, or a similarly important matter, or if any other department or branch of the government is specially interested, it is recommended that the written form of motion be used.

Often it is desirable to dismiss actions against defendants committed to federal custody for psychiatric examination to determine competency to stand trial pursuant to 18 U.S.C. § 4241(d) and 18 U.S.C. § 4247(b), and against defendants found incompetent to stand trial until their competency is restored. The Bureau of Prisons and the appropriate Medical Center for Federal Prisoners should be given notice well in advance of such dismissals and the provisions of Chapter 313 of Title 18 complied with. In cases involving dismissals of prosecution under 18 U.S.C. § 871, the Secret Service should be notified. In every case of a dismissal, the file should reflect the reasons for the dismissal. See also Principles of Federal Prosecution, JM 9-27.000.

[cited in JM 9-2.001]