Proposed amicus brief by fourteen former federal judges
***IV. ARGUMENT A. If the Court finds an improper quid pro quo, it should exercise its authority under Rule 48(a) to deny the DOJ’s request for dismissal.
Federal Rule of Criminal Procedure 48(a) provides that “[t]he government may, with leave of court, dismiss an indictment, information, or complaint.” “The words ‘leave of court’ were inserted in Rule 48(a)” and “obviously vest some discretion in the court.” Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977); see also United States v. N. V. Nederlandsche Combinatie Voor Chemische Industrie, 75 F.R.D. 473, 475 (S.D.N.Y. 1977) (“Nederlandsche II”) (“The effect of Rule 48(a) necessarily turns what was once solely the prerogative of the executive into a shared responsibility between the executive and judicial branches of government.”).
Rule 48(a) does not permit “the trial court to merely serve as a rubber stamp for the prosecutor’s decision.” United States v. Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973). Indeed, Rule 48(a) was amended to require leave of court pprecisely in order to prevent prosecutorial abuse. See, e.g., Thomas Ward Frampton, Why Do Rule 48(a) Dismissals Require “Leave of Court”?, 73 Stan. L. Rev. Online 28 (2020).
In Rinaldi, the Supreme Court indicated that courts may deny leave under Rule 48(a)
(1) “to protect a defendant against prosecutorial harassment” or
(2) “if the motion is prompted by considerations clearly contrary to the public interest.” Rinaldi, 434 U.S. at 29 n.15. The Second Circuit has likewise suggested that courts may deny Rule 48(a) motions where “dismissal is ‘clearly contrary to manifest public interest.’” United States v. HSBC Bank USA, N.A., 863 F.3d 125, 141 (2d Cir. 2017). Courts have primarily analyzed two factors to determine whether dismissal is contrary to public interest.
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