Case 1:24-cr-00556-DEH Document 175-1 Filed 03/25/25
Page 10 of 15
the motion is uncontested, the court should ordinarily presume that the prosecutor is acting in good
faith and dismiss the indictment without prejudice”). But Adams’s consent-which was
negotiated without my Office’s awareness or participation-would not guarantee a successful
motion, given the basic flaws in the Department’s rationales. See Nederlandsche Combinatie, 428
F. Supp. at 117 (declining to “rubber stamp” dismissal because although defendant did not appear
to object, “the court is vested with the responsibility of protecting the interests of the public on
whose behalf the criminal action is brought”).
The Government “may, with leave of court, dismiss an indictment” under Rule 48(a) of the
Federal Rules of Criminal Procedure. “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.”
Rinaldi v. United States, 434 U.S. 22, 30 n.15 (1977). “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.” Id.; see also JM 9-
2.050 (reflecting Department’s position that a “court may decline leave to dismiss if the manifest
public interest requires it).
“Rarely will the judiciary overrule the Executive Branch’s exercise of these prosecutorial
decisions.” Blaszczak, 56 F.4th at 238. But courts, including the Second Circuit, will nonetheless
inquire as to whether dismissal would be clearly contrary to the public interest. See, e.g., id. at
238-42 (extended discussion of contrary to public interest standard and cases applying it); see also
JM 9-2.050 (requiring “a written motion for leave to dismiss. . . explaining fully the reason for
the request” to dismiss for cases of public interest as well as for cases involving bribery). Although
it appears rare, at least one court in our district has rejected a dismissal under Rule 48(a) as contrary
to the public interest, regardless of the defendant’s consent. See Nederlandsche Combinatie, 428
F. Supp. At 116-17 (“After reviewing the entire record, the court has determined that a dismissal
of the indictment against Mr. Massaut is not in the public interest. Therefore, the government’s
motion to dismiss as to Mr. Massaut must be and is denied.”).
The cases show some inconsistency concerning what courts should do if they find the
standard for dismissal without prejudice not met. Some have instead dismissed indictments with
prejudice. See, e.g., United States v. Madzarac, 678 F. Supp. 3d 43 (D.D.C. 2023). The better-
reasoned view, however, is that courts considering a Rule 48(a) motion to dismiss without
prejudice must either grant or deny the motion as made-they cannot grant the dismissal, but do
so with prejudice, unless the Government consents. See United States v. B.G.G., 53 F.4th 1353,
1369 (11th Cir. 2022) (“[R]ule 48(a) does not give the district court the discretion to rewrite the
government’s dismissal motion from one without prejudice to one with prejudice.”); United States
v. Flotron, 17 Cr. 00220 (JAM), 2018 WL 940554, at *5 (D. Conn. Feb. 19, 2018) (denying
Government’s motion to dismiss without prejudice as contrary to public interest and requiring
Government to proceed to trial); see also In re United States, 345 F.3d 450, 453 (7th Cir. 2003)
(suggesting that courts might condition grant of Rule 48(a) motion on Government’s consent that
prejudice attach).
The assigned District Judge, the Honorable Dale E. Ho, appears likely to conduct a
searching inquiry in this case. Although Judge Ho is a recent appointee with little judicial track
record, he has resolved the motions in this case in lengthy written opinions that included research
5