Washington, In re, 75--1773

• Decision Date: 24 May 1976
• Docket Number: No. 75--1773,75--1773
• Citation: 531 F.2d 1297
• Parties: In re Issac WASHINGTON and Peter Rinaldi, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1297

531 F.2d 1297

In re Issac WASHINGTON and Peter Rinaldi, Defendants-Appellants.

No. 75--1773.

United States Court of Appeals Fifth Circuit.

May 24, 1976.

Melvyn Kessler, Miami, Fla. (court appointed), for Sole.

Mark R. Baer, Miami, Fla. (court appointed), for Rinaldi.

James J. Hogan, Miami Beach, Fla. (court appointed), Joseph Mincberg, Miami, Fla. (court appointed), for Washington.

Terence M. Brown, Appellate Section, Crim. Div., U.S. Dept. of Justice, Washington, D.C., Robert W. Rust, U.S. Atty., Miami, Fla., for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before MORGAN, CLARK and TJOFLAT, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Defendants Washington and Rinaldijoin with the government in its appeal of the district court's denial of a government motion to dismiss the indictment against defendants. Relevant facts are as follows: defendants were convicted in state court for conspiracy to rob the Doral Beach Hotel in Miami, Florida. Following that conviction, defendants were likewise tried and convicted in federal court ¹ for federal crimes arising out of the same facts. While their conviction was pending on appeal before this court, defendants Sole ² and Rinaldi filed a motion to supplement the record on appeal with the United States Department of Justice Policy (hereinafter referred to as Petite Policy) ³ that precludes the Department from trying a person a second time on essentially the same charges that were the subject of a state prosecution. The government responded to the motion, affirming the existence of the policy, and subsequently moved for remand of the case to the district court to allow the government to dismiss the indictment; we granted the government's motion to remand. ⁴ Thereafter, the government filed a motion with the district court, pursuant to F.R.Cr.P 48(a), to dismiss the indictment, arguing that federal prosecution of defendants had violated its own internal policy. Utilizing the discretion accorded it under Rule 48(a), the district court denied the motion. Both the government and the defendants appeal that denial.

In denying the government's motion to dismiss, Judge King relied on language in Rule 48(a), ⁵ allowing dismissal of an indictment only 'by leave of court,' to justify his position that the prosecution did not have total discretion over this matter. We agree that the trial court has a role in any decision to dismiss an indictment. While this court has held, en banc, that the judiciary cannot require the executive branch to bring prosecution against an individual, United States v. Cox., 342 F.2d 167 (5th Cir. 1965), there is a distinction between the prosecution's power to initiate and its power to terminate a prosecution. United States v. Cowan, 524 F.2d 504, 505 (5th Cir. 1975). The issue here is the circumstances under which the trial court can exercise its discretion to deny prosecution's motion to dismiss.

In his order denying the government's motion to dismiss, Judge King cited two primary reasons for his decision: (1) the government's motion to dismiss was not made until after the trial had been completed and a conviction had been obtained, and (2) the government's admissions, during the trial, of its knowledge that a state conviction had been obtained and of its intention, nonetheless, to pursue the federal prosecution.

The first reason--the post-conviction timing of the government's motion--is not sufficient, alone, to justify the court's refusal to dismiss the indictment. In Watts v. United States, 422 U.S. 1032, 95 S.Ct. 2648, 45 L.Ed.2d 688 (1975), the Supreme Court vacated the judgment and remanded a case, in which the government had moved for dismissal on grounds of the Petite Policy after a conviction had been obtained, to permit the government to dismiss charges against the defendant. While the opinion in Watts was only a memorandum order that did not analyze the relevancy of the stage of proceeding at which the motion is made, the result reached there persuades us that a motion for dismissal pursuant to Rule 48(a), and based on a violation of the Petite Policy, cannot be denied merely because it was made after a conviction had been obtained.

The second reason advanced in the order--the government's knowledge of the state conviction during the federal prosecution--raises serious questions about the government's good faith in this matter. In his order denying the motion for dismissal, Judge King noted that the government prosecutor was fully informed of the state prosecution of defendants:

The government also stated at the hearing that at no time during the first trial, which ended in a mistrial, or during the second trial, which resulted in the conviction of these defendants, was the policy, or its violation, ever brought to the court's attention. In fact, the court specifically inquired of the special trial attorney sent to Miami from Washington by the Department of Justice to try this case, why the government was insisting on a federal trial of these defendants.

Government's trial counsel advised the court that the Department of Justice was adamant in their decision that the federal trial proceed because there was grave concern that the state convictions would be reversed on appeal. The Department of Justice trial attorney, at a special conference called for the purpose of discussing the offer of at least one defendant to plead guilty, stated that the Department's position was that it could not agree to any plea involving concurrent confinement, and he had been instructed to proceed with the trial. Under those circumstances, it is clear the Department of Justice was completely aware of the proceedings in the Southern District of Florida. Record, p. 33 (emphasis added).

From the government attorney's comments at trial, it seems obvious that the Department of Justice was not only aware that defendants had been tried and convicted on state charges, but also had consciously weighed the possibility of not proceeding on federal charges because a state conviction had been obtained. Of course, the government could argue that mere awareness of a previous state prosecution does not insure that the prosecuting attorney is aware of the Petite Policy or that the policy has been complied with, in that compliance requires the approval of the appropriate Assistant Attorney General. Yet, at some point, the public interest in avoiding manipulation of the judicial system demands that the Department of Justice take responsibility for administering its own internal rules. That point has been reached in this case.

Here, Judge King inquired of the prosecuting attorney why the Department of Justice was pursuing this federal action when a state conviction had been obtained and why, in the alternative, the government could not accept the tendered pleas of guilty with the suggestion that the federal sentences run concurrently with the state terms. The trial attorney answered that the decision had been made in Washington, by presumably appropriate officials, to prosecute this matter to the hilt and not to accept concurrent sentences. In addition, the attorney stated that because the Department feared reversal of the state conviction, it was adamant that federal prosecution proceed.

There are several possible explanations for the government's one hundred eighty degree turn on the issue of federal prosecution of the defendants. The first possibility: the trial attorney had obtained no permission from Washington, but was merely acting on his own in his decision to prosecute defendants on federal charges, even though state convictions had been obtained. There is, however, no evidence to indicate that this trial attorney was lying and absent such evidence we refuse to infer such blatant bad faith from an officer of the court. Also, even if the trial attorney had not received explicit instructions from Washington as to whether a federal prosecution was appropriate after state convictions had been obtained, he was on notice, through the questioning of Judge King, to inquire further into the matter with the proper officials from the Department. Rather, evaluating the government's statements during trial and its later conduct, another explanation seems much more probable to us: government officials decided to prosecute defendants, notwithstanding their internal policy against such a prosecution, because of their fear that the state convictions would be reversed upon appeal. Then, after the state conviction was upheld and defendants raised, for the first time, the government's violation of its own internal policy as error upon appeal, the government decided that the case should never have been brought. ⁶ Indeed, the government never alleges that its non-compliance with the Petite Policy was inadvertent. It merely states that the appellate attorney for the government looked into the policy after appeal was brought and decided that the trial attorney should not have prosecuted the defendants. In fact, the government violated its policy by even trying defendants after they had been tried in state court, regardless of the status of those convictions after appeal, since the policy speaks in terms of state prosecutions, not state convictions. Yet, judging from the government's position at trial, it was prosecuting defendants on federal charges only because it feared reversal of the state conviction. Indeed, the government contended at oral argument that it was the sole judge of when its policies were to be followed and when they were to be disobeyed.

In Cowan v. United States, supra, we discussed the amount of discretion accorded the judiciary in a government motion to dismiss an indictment pursuant to Rule 48(a). We noted that 'the history of the Rule belies the notion that its only scope and purpose is the protection of the defendant. (Rather), it (is) manifestly clear that the Supreme Court intended to...