Case 1:24-cr-00556-DEH Document 158 Filed 03/07/25
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or grant but modify—nolle prosequi motions beyond what is strictly necessary to “prevent
harassment by prosecutors.” In re Richards, 213 F.3d 773, 786 (3d Cir. 2000). Compare, e.g.,
United States v. Bernard, 42 F.4th 905, 909 (8th Cir. 2022) (judge may deny a Rule 48(a) motion
…
upon finding that “the prosecutor had an illegitimate motive rising to the level of bad faith,”
such as “acceptance of a bribe, personal dislike of the victim, and dissatisfaction with the jury
impaneled” (quoting United States v. Smith, 55 F.3d 157, 159 (4th Cir. 1995))), and Rosenberg,
108 F.Supp.2d at 206 (denying nolle prosequi and opining that courts may “consider the
motivations of the prosecutor, the effects of dismissal, including whether the dismissal is with or
without prejudice, on the defendant, and the public interest, more generally, when evaluating the
nolle”); with, e.g., United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016) (“[T]he
‘leave of court’ authority gives no power to a district court to deny a prosecutor’s Rule 48(a) motion
to dismiss charges based on a disagreement with the prosecution’s exercise of charging
authority.”), and In re United States, 345 F.3d 450, 453 (7th Cir. 2003) (doubting that a judge
“could properly refuse to dismiss a prosecution merely because he was convinced that the
prosecutor was acting in bad faith or contrary to the public interest”).
Second Circuit caselaw reflects this ambivalence. United States v. Pimentel, 932 F.2d 1029
222
(2d Cir. 1991), “suggested (in dictum) that any authority a court might have to deny a Rule 48(a)
motion would be limited to cases in which dismissal is ‘clearly contrary to manifest public
interest.” United States v. HSBC Bank USA, N.A., 863 F.3d 125, 141 (2d Cir. 2017) (quoting
Pimentel, 932 F.2d at 1033 n.5). But that observation was plainly dictum, as the court allowed
dismissal in Pimentel, while noting that the prosecutor has “considerable discretion” to dismiss
cases. 932 F.2d at 1033. Subsequent cases are similarly equivocal. In HSBC, the Second Circuit
underscored that “[d]ecisions to initiate charges, or to dismiss charges once brought, lie at the
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