659 F.2d 624 (5th Cir. 1981), 80-1315, United States v. Hamm

Docket Nº:80-1315, 80-1331.
Citation:659 F.2d 624
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert HAMM, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Willis Judge BUTLER, Les Wallick Fuller, Dayton Bud Evans, Jr. and Larry Dale Washington, Defendants-Appellants.
Case Date:October 19, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 624

659 F.2d 624 (5th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,


Robert HAMM, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Willis Judge BUTLER, Les Wallick Fuller, Dayton Bud Evans,

Jr. and Larry Dale Washington, Defendants-Appellants.

Nos. 80-1315, 80-1331.

Unit A [*]

United States Court of Appeals, Fifth Circuit

October 19, 1981

Page 625

Edward D. Foreman, P.A., Thomas E. Reynolds, St. Petersburg, Fla., for defendant-appellant in No. 80-1315.

William C. Bryson, Peter E. Scheer, Washington, D. C., for plaintiff-appellee in both cases.

Randy Schaffer, Houston, Tex., for Washington.

Melvyn C. Bruder, Dallas, Tex., for Butler, Evans and Fuller.

David Baugh, Asst. U. S. Atty., Beaumont, Tex., for plaintiff-appellee in 80-1331.

Appeals from the United States District Court for the Eastern District of Texas.


AINSWORTH, Circuit Judge:

This case presents a constitutionally important conflict between a trial judge and a government prosecutor over the right of the Government to dismiss indictments against defendants who, after having pleaded guilty to criminal charges, cooperated with the Government in the prosecution of the leaders of a large drug-smuggling conspiracy.

The appellants, Robert Hamm, Willis Butler, Les Fuller, Dayton Evans, Jr., and Larry Washington, appeal from the district court's denial of the Government's motion to dismiss the indictments against them, and the court's denial of their motions to withdraw their guilty pleas. The Department of Justice and the local United States Attorney, who prosecuted the cases, join with the appellants in this appeal to set aside the district court's ruling. A panel of this court held that the district court erred in denying the Government's motion to dismiss the indictments, 638 F.2d 823 (5th Cir. 1981). The court then voted to rehear the case en banc, 644 F.2d 354 (5th Cir. 1981), thus vacating the panel opinion. See Fifth Circuit Local Rule 17. On rehearing en banc, we again find that the district court should have granted the United States Attorney's motion to dismiss the indictments and accordingly reverse.

Facts and Procedural History

Appellants Fuller, Washington, Butler and Evans and ten others were named in a multicount indictment on January 16, 1979, alleging their involvement in the shipment of a large quantity of marijuana from Colombia to the United States. 1 Appellant Hamm was indicted on May 1, 1979, for his participation in several large marijuana shipments. 2 Pursuant to plea-bargaining agreements with the United States Attorney, each of the appellants pleaded guilty to one count and the Government dismissed all

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other counts in return for their cooperation in the prosecution of the leaders of the drug-smuggling conspiracy. 3 At the time of the plea, no explicit agreements existed as to sentencing. 4 The district judge accepted the guilty pleas and postponed sentencing to assure the appellants' cooperation. After the appellants pleaded guilty, but several months before they were brought before the judge for sentencing, the Government agreed to modify the plea-bargaining agreements because of the extraordinary usefulness of the information and testimony the appellants had provided in the United States Attorney's continuing investigation and prosecutions as well as the great personal risk the appellants took in making their revelations. 5 The prosecutor and the defendants entered into agreements under Rule 11(e), Federal Rules of Criminal Procedure, "subject to the approval of the sentencing judge" limiting the defendants' sentences to a maximum of two years' imprisonment for Hamm and a maximum of six months for the other appellants. 6

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As we noted in the original panel opinion, "(t)here is considerable evidence in the record to support the appellants' contentions that the prosecutor led them to believe that the judge had agreed to follow the sentencing recommendations." 638 F.2d at 825. 7 The trial judge categorically denied that he was ever informed of the agreement and the prosecutor did not contest that denial in open court. Obviously we accept without reservation the district judge's denial. It thus seems possible that in the prosecutor's zeal to convict the leaders of this conspiracy with the aid of the cooperating defendants, he may have misled at least one of the defense attorneys. 8

On February 29, 1980, appellant Fuller was brought before the court for sentencing. The trial judge told the prosecutor and the defendant that he had not been informed of the modified plea-bargaining agreement and would not be bound by it. 9 The court then granted Fuller's motion for leave to withdraw his guilty plea. On March 4 and 5, 1980, the Government moved to dismiss the indictments against all of the cooperating defendants under Rule 48(a) of the Federal Rules of Criminal Procedure. The district judge denied the Government's motion, refused to permit the appellants to withdraw their pleas, 10 and

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sentenced them to terms of imprisonment. 11

The Meaning of the Leave of Court Requirement

Rule 48(a) of the Federal Rules of Criminal Procedure provides:


(a) By Attorney for Government. The Attorney General or the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant.

Our determination of the meaning of the "leave of court" requirement is essential to the proper disposition of this appeal. In deciding in what situations that leave can be denied, we must balance the constitutional duty of government prosecutors, as members of the Executive Branch, to "take care that the laws (are) faithfully executed" 12 with the constitutional powers of the federal courts, most particularly the sentencing power of trial judges. 13

We hold that the "leave of court" requirement of Rule 48(a) is primarily intended to protect the defendant against prosecutorial harassment. 14 The district court may not deny a government motion to dismiss a prosecution, consented to by the defendant, except in those extraordinary cases where it appears the prosecutor is motivated by considerations clearly contrary to the manifest public interest. 15

In United States v. Cowan, 524 F.2d 504 (5th Cir. 1975), cert. denied sub nom. Woodruff v. United States, 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 795 (1976), this court interpreted Rule 48(a) to accommodate the powers and duties of the two branches:

We think (Rule 48(a)) should and can be construed to preserve the essential judicial function of protecting the public interest in the evenhanded administration of criminal justice without encroaching on the primary duty of the Executive to take care that the laws are faithfully executed. The resulting balance of power is precisely what the Framers intended.... The Executive remains the absolute

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judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated. The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest. In this way, the essential function of each branch is synchronized to achieve a balance that serves both practical and constitutional values.

524 F.2d at 513. Thus, this court limited the discretion of the trial judge to deny leave to dismiss an indictment to cases where dismissal would be "clearly contrary to manifest public interest." 16

The Supreme Court examined the leave of court requirement in Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977). Reversing an en banc decision of this court, 17 the Supreme Court held that if the prosecutor's motion to dismiss was not "tainted with impropriety," and was not "motivated by considerations ... 'clearly contrary to manifest public interest,' " the trial court could not properly deny the prosecutor's motion. 434 U.S. at 30, 98 S.Ct. at 85-86 (citing Cowan ). The Court noted that the principal object of the leave of court requirement was apparently to protect a defendant from prosecutorial harassment. 18 The Court did not decide whether a trial court has discretion to deny a prosecutor's motion to dismiss which has the consent of the defendant. 434 U.S. at 29 n.15, 98 S.Ct. at 85 n.15. The Court did not reach that question in Rinaldi, however, since even if it assumed that the trial court could deny the prosecutor's motion when it disserved the public interest, the prosecutor's actions in the case could not be fairly characterized as such a disservice. Id.

We continue to hold that even when the defendant consents to the motion to dismiss, the trial court, in extremely limited circumstances in extraordinary cases, may deny the motion when the prosecutor's actions clearly indicate a "betrayal of the public interest." United States v. Cowan, supra, 524 F.2d at 514. As the Supreme Court indicated in Rinaldi, the trial judge must look to the motivation of the prosecutor at the time of the decision to dismiss. As Judge Hill pointed out in his dissent to this court's en banc opinion which was reversed

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in Rinaldi, "if it should appear that the prosecutor is motivated to dismiss because he has accepted a bribe or because he desires to attend a social event instead of attend upon the court in the trial of the case or because he personally dislikes the victim of the...

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