U.S. v. Weber, s. 82-1425
| Decision Date | 29 November 1983 |
| Docket Number | Nos. 82-1425,83-3018,s. 82-1425 |
| Citation | 721 F.2d 266 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Patrick Michael WEBER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David D. Marshall, Asst. U.S. Atty., Seattle, Wash., John F. DePue, Dept. of Justice, Washington, D.C., for plaintiff-appellee.
James C. Buckley, Tacoma, Wash., for defendant-appellant.
Appeal from the United States District Court for the Western District of Washington.
Before BROWNING, Chief Judge, and HUG and TANG, Circuit Judges.
Patrick Weber appeals from his conviction of conspiracy to defraud the government in violation of 18 U.S.C. Sec. 371 and theft of government property in violation of 18 U.S.C. Sec. 641. Weber assigns as error the trial court's denial of the government's motion to dismiss the indictment under Fed.R.Crim.P. 48(a), and various rulings made at trial. We conclude the trial court erred in refusing to dismiss the indictment and do not reach the alleged trial errors.
Weber and three other defendants were convicted by a jury of conspiracy to defraud the government and theft of government property in connection with the diversion of large quantities of meat from the United States Army at Fort Lewis, Washington. All four defendants appealed. The convictions of defendants other than Weber were affirmed. United States v. Long, 706 F.2d 1044 (9th Cir.1983). Meanwhile, the Assistant United States Attorney who had presented the case had developed substantial doubts as to Weber's guilt based upon interviews with Weber and a re-examination of the evidence. On the stipulation of Weber and the government we dismissed Weber's appeal to permit the government to move in district court for dismissal of the indictment under Fed.R.Crim.P. 48(a). The trial court denied the motion to dismiss. We reinstated Weber's original appeal and consolidated it with his appeal from the denial of the motion to dismiss.
Fed.R.Crim.P. 48(a) provides:
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.
(Emphasis added.)
Prior to the adoption of Rule 48 the Executive Branch had complete discretion to determine whether a prosecution should be initiated or terminated. See Fed.R.Crim.P. 48 Advisory Committee Note. "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, 29 n. 15, 98 S.Ct. 81, 85 n. 15, 54 L.Ed.2d 207 (1977). See, e.g., United States v. Salinas, 693 F.2d 348 (5th Cir.1982). There is no allegation of prosecutorial harassment in this case; Weber consented to the government's motion to dismiss.
Rule 48 "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." Rinaldi v. United States, 434 U.S. at 29 n. 15, 98 S.Ct. at 85 n. 15. See, e.g., United States v. Cowan, 524 F.2d 504, 513 (5th Cir.1975). Such considerations would include, for example, the acceptance of a bribe by the prosecutor or the desire to attend a social event instead of appearing in court. United States v. Hamm, 659 F.2d 624, 630 (5th Cir.1981) (en banc).
In Rinaldi, the Supreme Court expressly reserved decision of the question whether the district court has any discretion to deny a motion to dismiss consented to by the defendant. 434 U.S. at 29 n. 15, 98 S.Ct. at 85 n. 15. The Court did not reach the issue in Rinaldi because it held that a motion to dismiss pursuant to the Petite policy, under which the Justice Department refuses to bring a federal prosecution following a state prosecution for the same act, could not fairly be characterized as "clearly contrary to manifest public interest." Id. at 30, 98 S.Ct. at 85-86.
We also decline to reach the question because we conclude that in this case the motion for dismissal could not fairly be characterized as "clearly contrary to manifest public interest."
After trial and sentencing, the Assistant United States Attorney interviewed Weber in his cell and obtained Weber's version of the events in great detail, including facts available to the defendant earlier but not previously...
To continue reading
Request your trial
-
Myers v. Frazier
...425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 795 (1976); United States v. Dupris, 664 F.2d 169, 174 (8th Cir.1981); United States v. Weber, 721 F.2d 266, 268 (9th Cir.1983); United States v. Del Vecchio, 707 F.2d 1214, 1216 (11th Cir.1983); United States v. Hastings, 447 F.Supp. 534, 537 (E.D.Ar......
-
United States v. Blaszczak
...which he was convicted, the government has similarly moved to discontinue or dismiss the prosecution. For example, in United States v. Weber , 721 F.2d 266 (9th Cir. 1983), after Weber and his codefendants had been convicted and sentenced, the Assistant United States Attorney who had prosec......
-
Dawsey v. Government of Virgin Islands
...banc decision of the Fifth Circuit Court of Appeals, sub nom., In re Washington, 544 F.2d 203 (5th Cir.1976). 10 See United States v. Weber, 721 F.2d 266 (9th Cir.1983). 11 While the prosecutor in the Hamm case may have mislead defense counsel to believe that the judge had agreed to the sen......
-
Korematsu v. United States
...appeals and, indeed, after a lapse of many years. At that stage, there is no longer any prosecution to be terminated. United States v. Weber, 721 F.2d 266 (9th Cir.1983) does not compel a different interpretation. In Weber, as in the cases upon which it relies, the Rule 48(a) motion was mad......