U.S. v. Welborn
| Decision Date | 22 July 1988 |
| Docket Number | No. 87-1403,87-1403 |
| Citation | 849 F.2d 980 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Charles Byron WELBORN, James L. Cockrell, Samuel Carr Hester, and Corwin Guy Mendenhall, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Sidney Powell, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellant.
Rice M. Tilley, Jr., Ft. Worth, Tex., Court appointed, for Hester.
Frank D. McCown, Ft. Worth, Tex., for Welborn.
Michael B. Paddock, Ft. Worth, Tex., Court appointed, for Cockrell.
John A. Spinuzzi, Denton, Tex., for Mendenhall.
Appeal from the United States District Court for the Northern District of Texas.
Before CLARK, Chief Judge, GOLDBERG and GARWOOD, Circuit Judges.
The government filed this appeal after the district court dismissed with prejudice the second indictment against Charles Welborn, James Cockrell, Samuel Hester and Corwin Mendenhall. We vacate and remand.
A grand jury returned a three count indictment against five defendants, Welborn, Hester, Cockrell, Mendenhall and Charles Smith. The first count charged each of the defendants with conspiring to violate certain banking laws and the last two counts charged Welborn with substantive violations. Three days before trial, the government moved to dismiss the indictment without prejudice. The motion claimed that dismissal would "serve the ends of justice." At a hearing held the day of the filing, the district court asked the government to elaborate. The prosecution declined, explaining that it would pursue reindictment and would prefer "to simply rely on the allegation ... in the written motion." The district court dismissed the indictment without prejudice and deferred all motions until any "future action is taken" (i.e. until the defendants are reindicted).
Seven months later a fifty-seven count indictment was returned against Welborn, Cockrell, Hester and Mendenhall. Smith was not named as a defendant in the second indictment. Like the prior indictment, the first count in the second indictment charged each defendant with conspiracy. The second indictment also contained fifty-six previously uncharged substantive counts. A motion filed by Welborn and adopted by the other defendants sought dismissal of the second indictment on the following grounds: (1) the district court abused its discretion by dismissing the first indictment over the defendants' objection without requiring the government to furnish more than a conclusory justification; (2) bad faith prompted the government to request dismissal of the first indictment; and (3) an unspecified violation of the Speedy Trial Act.
The government's response to the defendant's motion stated that it had moved to dismiss the first indictment based on the following four factors. First, the case might have been subject to an objection based on a district court decision, later reversed, which suppressed bank records which had been summarized but not actually presented to the grand jury. Second, the original prosecutor had been transferred and the newly assigned prosecutor became convinced during the course of trial preparation that the indictment did not adequately address the "gravaman" of the defendants' criminal conduct and that reindictment seemed most appropriate given the department of justice's policy against successive prosecutions. Third, additional time to evaluate the fraudulent scheme and charges was needed when two or three days before filing the motion to dismiss Charles Smith, an officer of the defrauded bank, decided to cooperate with the prosecution. Finally, one of the charges against Welborn involved a dispute over the valuation of an interest in a silver mine which the prosecution thought would necessitate presentation of complicated evidence that would detract from the crux of the charges.
On September 18, 1986, the district court held a hearing on the defendants' motions. At the conclusion of the hearing, the court ordered the government to produce by October 30, 1986 any evidence in its possession that might indicate the prosecutor's reasons for having requested dismissal. The case lay dormant until January 7, 1987 when Welborn renewed his motion to dismiss. On April 30, 1987, the district court ordered dismissal of the second indictment on two grounds. First, the prior indictment must be treated as having been dismissed with prejudice because the government originally supported its motion to dismiss with two insufficient conclusory statements- --that justice would be served by dismissal and reindictment would be sought. Second, the government's failure to respond to the September 18, 1986 order to produce evidence should be sanctioned by dismissing the second indictment with prejudice. The government appealed urging that the district court erred by not considering the four factors put forward in the response to the defendants' motion to dismiss the second indictment and that the district court abused its discretion by dismissing the second indictment with prejudice to sanction the prosecutor for disregarding the September 18, 1986 order. 1
Federal Rule of Criminal Procedure 48(a) provides that a government "attorney may by leave of court file a dismissal of an indictment." The "leave of court" requirement of Rule 48(a) has been interpreted "to allow the courts to exercise discretion over the propriety of a prosecutorial motion to dismiss." United States v. Salinas, 693 F.2d 348, 351 (5th Cir.1982), reh'g denied, 701 F.2d 41 (1983) (per curiam). The primary purpose of this requirement is "to prevent harassment of a defendant by charging, dismissing and re-charging without placing a defendant in jeopardy." United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); see also United States v. Hamm, 659 F.2d 624, 628 (5th Cir.1981) (en banc). A prosecutor's request for dismissal is improper when it is made in bad faith. Bad faith arises when the prosecution is motivated "by considerations 'clearly contrary to the public interest' " and "the public interest is not served by harassing a defendant." Salinas, 693 F.2d at 351 & n. 5. When a court considers a prosecutor's motion to dismiss it must begin with the presumption that the prosecutor acted in good faith. Id. This presumption is rooted in a proper respect for the constitutional division of power between the executive and judicial branches of government. Hamm, 659 F.2d at 628-29 & n. 13.
Our research discloses little precedent to guide the application of the presumption of good faith when a prosecutor moves to dismiss an indictment without prejudice. By looking mainly to the rule and its underlying purposes we develop the following basic guides. If the motion is uncontested, the court should ordinarily presume that the prosecutor is acting in good faith and dismiss the indictment without prejudice. 2 A defendant may perceive some advantage to dismissal (e.g., additional time to prepare or the possibility that reindictment will not be pursued) and therefore deliberately choose not to object. Whether deliberate or not, unjustified failure to contest a motion to dismiss waives any right to later complain that the prosecution requested dismissal in bad faith.
Because Rule 48(a) requires an exercise of discretion, the court should not grant a contested motion to dismiss unless the prosecution furnishes more than a bare conclusion in support of its motion. "Although the burden of proof is not on the prosecutor to prove that dismissal is in the public interest, the prosecutor is under an obligation to supply sufficient reasons--reasons that constitute more than 'a mere conclusory interest.' " Salinas, 693 F.2d at 352 (footnotes omitted). A bald statement that justice will be served by dismissal or that reindictment will be sought does not suffice. Id. at 352. Based on the prosecutor's statement of reasons and any response by defendant, the court should determine whether the presumption of good faith is overcome by "an affirmative reason to believe that the dismissal motion was motivated by considerations contrary to the public interest." Hamm, 659 F.2d at 631.
If, despite a defendant's objection, the trial court fails to require the prosecutor to submit sufficient reasons and dismisses the indictment without prejudice, the defendant retains the right upon reindictment to have the ruling reviewed. 3 In such a case, dismissal of the prior indictment should be recharacterized as with prejudice if, after considering any reasons newly furnished by the prosecution for having moved for dismissal, the defendant (1) overcomes the presumption of good faith or (2) has been prejudiced in his ability to attack the prosecutor's motives due to the trial court's failure to require submission of adequate reasons before dismissing the prior indictment. This rule serves both the public interest in not having an otherwise legitimate prosecution barred by minor procedural errors and the defendant's interest in not being subjected to prosecutorial harassment. The delay and expense that ordinarily accompanies the process of dismissal and reindictment is not relevant to the prejudice prong of this rule. Similarly, the death of a key defense witness during the period between dismissal and reindictment would not constitute prejudice. An example of the type of prejudice that could affect the defendant's ability to demonstrate the bad faith of the initial request to dismiss might be the death of the only prosecutor with knowledge of the government's motives for seeking dismissal.
Only one defendant, Welborn, clearly contested dismissal of the first indictment. At the hearing on the government's motion to dismiss, none of the other defendants joined in Welborn's objections to dismissal. Mendenhall's attorney who was not present at the hearing requested the prosecutor to...
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