United States v. Shanahan, IP 58-CR-76.

• Decision Date: 07 January 1959
• Docket Number: No. IP 58-CR-76.,IP 58-CR-76.
• Citation: 168 F. Supp. 225
• Parties: UNITED STATES of America v. Daniel P. SHANAHAN.
• Court: U.S. District Court — Southern District of Indiana

168 F. Supp. 225

UNITED STATES of America v. Daniel P. SHANAHAN.

No. IP 58-CR-76.

United States District Court S. D. Indiana, Indianapolis Division.

December 3, 1958.

On Motion for Reconsideration January 7, 1959.

Don A. Tabbert, U. S. Atty., and James L. Miller, Asst. U. S. Atty., Indianapolis, Ind., for the United States.

John H. O'Hara, Indianapolis, Ind., and Paul T. Smith, Boston, Mass., for defendant.

STECKLER, Chief Judge.

This cause is before the Court upon the Government's motion for leave of court to file a dismissal of the grand jury indictment in the above captioned cause. The motion was filed pursuant to Rule 48(a), Federal Rules of Criminal Procedure, 18 U.S.C.A., and bears a filing date of November 19, 1958, the date of its receipt for filing by the Clerk of this Court. The motion was filed at about 4:00 p. m. on said date.

The Court's calendar shows that this case was set for trial to commence on the morning of Monday, November 24, 1958. Pursuant to custom, two cases were set for trial on said date, the other being the case of United States of America vs. Gus Henry Eldridge, Jr., No. IP 58-CR-80. The instant case, however, occupied the priority position as far as that particular date was concerned. Consequently, counsel for the Government and for the defendant were advised by the Clerk of the Court that the instant case would go forward on Monday morning, November 24, 1958, and that the second case assigned for that date would be tried upon completion of the trial in the instant case. Notice of the calendar and the order of trial thereunder was given to counsel on or about October 10, 1958.

It thus appears that the instant motion was filed some two court days prior to the scheduled commencement of trial. No factual reasons or grounds are set forth in the motion.¹ In view of this fact, as well as the close proximity of the filing to the trial date, the Court was concerned as to why said motion had not been filed at an earlier date so as to avoid unnecessary preparations for trial by both the court and counsel for the defendant. Consequently local counsel of defendant and the United States Attorney were notified to appear before the Court in order that an explanation might be had with respect to the reasons for the lateness in filing the motion as well as the factual reasons upon which leave to file a dismissal was requested.

The grand jury indictment by which this prosecution was commenced was filed in this court on August 18, 1958. The indictment charges the defendant with the violation of Title 18 United States Code § 1621, the offense alleged being that of perjury allegedly committed by defendant while appearing before the August, 1958 session of the United States grand jury for this district.² Such an offense strikes at the very trunk nerve of our system of administering justice. It is not a minor offense, but one possessed with grave consequences.³ A motion for leave to dismiss a grand jury indictment charging such an offense cannot be taken lightly by the Court.

Pursuant to the aforesaid notice, Don A. Tabbert, United States Attorney, his assistant, James L. Miller and John H. O'Hara, local counsel for the defendant,⁴ appeared before the Court at 2:00 p. m. on Friday, November 21, 1958. At the commencement of this hearing, the Court announced that its purpose in summoning the parties was to have a full explanation made in respect to why the Government had taken the action in question at what the Court chose to term "the eleventh hour." Reduced to its essence, the reply of the United States Attorney was to the effect that a conference had been had with representatives of the Department of Justice in Washington on the preceding day, that the action could not have been taken earlier and that the motion was filed in the "best interests of justice."⁵ A colloquy then ensued, in which the Court made the effort to elicit more specific factual reasons from the United States Attorney for the action taken by the Government. None were forthcoming, the Government preferring to stand on the somewhat abstract ground that the motion was made "in the interests of justice." At the close of said colloquy, counsel for defendant stated his objections to the instant motion. In essence, the objections were that it would work an injustice upon the defendant to dismiss the indictment at a time when he is prepared for trial with a view to having an ultimate disposition of the case and thus leave the door open for reenactment at a future date, unless the Government can offer a sound factual basis for so doing; that the Government has offered no such basis in this case.

The untimeliness of the filing of the motion aside, the issue with regard to this motion is whether a court, in the exercise of its discretion, is justified in granting leave to file a dismissal of a grand jury indictment charging a serious offense when the request for such leave is made on virtually the eve of the trial and the sole basis of such a request is that in the estimation of the Government, it is "in the interests of justice."

The Federal Rules of Criminal Procedure, 18 U.S.C., became effective on March 21, 1946. Rule 48(a) thereof provides that "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.) With regard to the first sentence of this rule, the notes of the Advisory Committee on Rules are illuminating. These notes read as follows:

"Note to Subdivision (a). 1. The first sentence of this rule will change existing law. The common-law rule that the public prosecutor may enter a nolle prosequi in his discretion, * * * prevails in the Federal Courts, In re Confiscation Cases, 7 Wall. 454, 457, 19 L.Ed. 196; United States v. Woody, D.C.Mont., 2 F.2d 262. This provision will permit the filing of a nolle prosequi only by leave of court. This is similar to the rule now prevailing in many States. A.L.I. Code of Criminal Procedure, Commentaries, pp. 895-897." (Emphasis added.) 18 U.S.C.A.

Apparently, the rule as submitted to the Supreme Court by the Committee as shown by the print that was published at that time—gave the Attorney General or the United States Attorney a right to dismiss without leave of court, but required that there be filed a statement of reasons for the dismissal. The Supreme Court, however, revised the rule and adopted it as it now reads, that no statement of reasons is required but that leave of court must first be obtained. New York University School of Law, Institute Proceedings Vol. VI, pp. 170, 171 (1946).

In view of the above, the conclusion would seem inescapable that the Supreme Court, in approving Rule 48(a) in its present form, was expressing in positive fashion its belief that entry of a nolle prosequi by the Government is a permissive right only, requiring in all cases the approval of the court in the exercise of its judicial discretion. Apparently this view had some support prior to the adoption of the present rule.⁶ To view the rule otherwise, as urged by the United States Attorney in this matter,⁷ would render meaningless that part of the rule requiring leave of court to dismiss an indictment, information or complaint.

Since the adoption of the rule in question, the interpretation given above has been followed in the case of United States v. Doe, D.C.Conn.1951, 101 F.Supp. 609, 611. There, as here, the Government recommended dismissal of an entire indictment under Rule 48(a). The district court, speaking through Chief Judge Hincks, stated:

"In my view, the rule contemplates that the court shall exercise a sound discretion in the premises. And on fundamental principles, at least in the absence of very exceptional circumstances as for instance where the defendant has received a substantial sentence for another phase of the same offense, the court may not properly approve a dismissal of the entire case against any given defendant unless satisfied that the government lacks sufficient evidence to warrant a prosecution. Especially is this so where the matter is before the court on indictment as distinguished from information.

"Here, an Assistant Attorney General by telegram authorized an application for dismissal but makes no disclosure of the facts upon which his action is based. * * * Surely, if the court has discretion in the premises it is entitled to the factual information upon which the final departmental recommendation is based. If the Department deems it unwise to disclose any weaknesses in its case before the defendant has pleaded guilty, it can always submit its information in writing and request that the disclosure be sealed at least until sentence has been imposed." 101 F.Supp. at page 611.

Generally speaking, this court agrees with the expression of Chief Judge Hincks quoted above. So, in the instant matter, the court finds its thinking well summed up by the following words of that judge in the Doe case, supra:

"* * * I am still, after an adjourned hearing, left without information which in my judgment justifies a nullification of the indictment by a grand jury acting, so far as appears, in accordance with * * * usual judicial instructions and thus foreclosing the case from the determination of a petit jury." 101 F. Supp. at page 611.

The court does not entirely agree with the quoted passage to the effect that the only justification for a dismissal of an indictment is lack of sufficient evidence to warrant prosecution. However, it is of the firm belief that the bare assertion that the motion is made "in the interests of justice," when not implemented by explanatory facts, is plainly not sufficient to justify a court in permitting the dismissal of an indictment such as the one here in question. Ultimately, it is for the court in either granting or...