United States v. B. G. G.

53 F.4th 1353

UNITED STATES of America, Plaintiff-Appellant,

v.B. G. G., Defendant-Appellee.

No. 21-10165

United States Court of Appeals, Eleventh Circuit.

Filed: November 22, 2022

Nicole D. Mariani, Alexandra Chase, Lisa Tobin Rubio, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service, Miami, FL, for Plaintiff-Appellant.

David Oscar Markus, Markus/Moss, PLLC, Miami, FL, for Defendant-Appellee.

John D. Cline, Law Office of John D. Cline, Seattle, WA, Amy Mason Saharia, Williams & Connolly, LLP, Washington, DC, for Amicus Curiae National Association of Criminal Defense Lawyers.

Erica Perdomo, Quinn Emanuel, Miami, FL, Ryan K. Stumphauzer, Stumphauzer Kolaya Nadler & Sloman, PLLC, Miami, FL, for Amicus Curiae Former Federal Prosecutors.

John D. Cline, Law Office of John D. Cline, Seattle, WA, Clark M. Neily, III, Institute for Justice, Arlington, VA, for Amicus CuriaE Cato Institute.

Before Wilson, Luck, and Lagoa, Circuit Judges.

Luck, Circuit Judge:

Federal Rule of Criminal Procedure 48(a) allows the government to dismiss an information (or indictment) before trial with "leave of court." But, because "[f]ew subjects are less adapted to judicial review than the exercise by the [e]xecutive of his discretion in deciding ... whether to dismiss a proceeding once brought," Newman v. United States , 382 F.2d 479, 480 (D.C. Cir. 1967) (Burger, J.), the district court's discretion to grant or deny "leave" under rule 48(a) is limited. The district court must presume that the government moved to dismiss the information in good faith. The district court must find, to overcome the good-faith presumption, that the government acted in bad faith in moving to dismiss the information. The district court must still dismiss the information, if the good-faith presumption has been overcome, where the government's reasons for dismissal do not go to the merits and do not demonstrate a purpose to harass. And the district court's dismissal (before trial) must be without prejudice and cannot bar a future prosecution.

The question in this case is whether the district court abused its limited discretion when it granted "leave" to dismiss the information against B.G.G. with prejudice. We conclude that it did. The district court did not presume the government moved to dismiss the information in good faith. It did not find bad faith by the government. It did not focus its analysis on whether the government's reasons for dismissal went to the merits or demonstrated a purpose to harass. And it did not dismiss the information without prejudice. Because of these errors of law, we vacate the dismissal order and remand for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The statute of limitations and rule 48(a)

Two statutes and two rules of criminal procedure are important to understanding the government's appeal. So we discuss them first before getting on to the facts.

The statute of limitations for prosecuting federal crimes provides that "no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." 18 U.S.C. § 3282(a). But there are exceptions to the five-year limitations period, and this is one of them:

Whenever an indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment or information, or, in the event of an appeal, within 60 days of the date the dismissal of the indictment or information becomes final, or, if no regular grand jury is in session in the appropriate jurisdiction when the indictment or information is dismissed, within six calendar months of the date when the next regular grand jury is convened, which new indictment shall not be barred by any statute of limitations.

Id. § 3288.

This case involves an information. For an information, Federal Rule of Criminal Procedure 7(b) provides that an "offense punishable by imprisonment for more than one year may be prosecuted by information if the defendant—in open court and after being advised of the nature of the charge and of the defendant's rights—waives prosecution by indictment." Fed. R. Crim. P. 7(b). If the government moves to dismiss the information before trial, it must comply with rule 48(a), which allows the government, "with leave of court," to "dismiss an indictment, information, or complaint." Id. R. 48(a).

The information

In early 2020, the operation of the federal courts, like just about everything else in the United States and around the world, was disrupted by the COVID-19 pandemic. On March 26, 2020, the United States District Court for the Southern District of Florida suspended all grand jury sessions in response to the pandemic. See S.D. Fla. Admin. Order 2020-22. And, on August 11, 2020, the suspension was extended to January 4, 2021.¹ See S.D. Fla. Admin. Order 2020-53.

On August 28, 2020, while the administrative order suspending grand jury sessions was still in effect, the government filed a sealed two-count information against B.G.G. The information charged B.G.G. with conspiring to accept kickbacks for prescribing opioids from August 2012 through August 31, 2015, in violation of 18 U.S.C. section 371, and with soliciting and receiving kickbacks for prescribing opioids on August 31, 2015, in violation of 42 U.S.C. section 1320A-7B. Both counts had the same five-year limitations period, which was set to run out on August 31, 2020. The government filed the information three days before the statute of limitations expired.

The government gave a copy of the sealed information to B.G.G.’s counsel on August 31, 2020. But B.G.G. refused to waive prosecution by indictment under rule 7(b).

The government's motion to dismiss the information

In response to B.G.G.’s refusal to waive prosecution by indictment, the government filed a proposed "order of dismissal." The district court construed the proposed order as a rule 48(a) motion to dismiss the information. The government explained that because of the grand jury suspension, and because of concerns about the statute of limitations expiring, it "institute[d]" the information "within the meaning of" section 3282(a). The government's intent was to dismiss the information and later seek to indict B.G.G. once the grand jury reconvened, as provided by the tolling provision of section 3288. The government argued that it was acting in good faith "to protect against the running of the statute of limitations." B.G.G. wouldn't be prejudiced by the dismissal, the government maintained, because he could raise a statute of limitations defense if he was ultimately indicted.

B.G.G. didn't oppose the government's motion to dismiss; rather, he agreed "that the information should be dismissed" because he didn't consent to it. "The only dispute in this case," B.G.G. explained, was whether the information "should be [dismissed] with or without prejudice."

B.G.G. contended that the district court should dismiss the information with prejudice. He maintained that the government had been investigating him since 2015 and could've indicted him "well before" the March 2020 grand jury suspension. He also argued that the government could've sought his indictment in another district that hadn't suspended the grand jury. And B.G.G. asserted that an information filed without the defendant's waiver of indictment was "meaningless" and couldn't "institute" the prosecution under section 3282(a).

The district court declined to adopt the government's proposed dismissal order. The district court wrote that, although it intended to dismiss the information, the "fundamental issue" was whether the government's "tactical" use of rule 48(a) was appropriate. The district court explained that the point of rule 48(a) ’s "leave of court" requirement was to protect a defendant against prosecutorial harassment and to bar dismissals "clearly contrary to the public interest." B.G.G.’s objection to a dismissal without prejudice went "to the heart" of rule 48(a) ’s leave of court requirement, the district court wrote, "because court approval is necessary under [r]ule 48(a) for the protection of a defendant under circumstances where, as here, the [g]overnment is seeking to dismiss for the purpose of commencing another prosecution at a different time or place deemed more favorable to the prosecution."

The district court acknowledged that the government was entitled to "substantial deference" in seeking to dismiss the information.

And the district court did not "question the subjective good faith of the prosecutor." But the district court wrote that it would reject a dismissal without prejudice if the government's use of rule 48(a) harassed B.G.G. or was contrary to the public interest. The district court ordered the parties to brief the question of whether, under rule 48(a), a dismissal without prejudice was appropriate under the circumstances.

The government argued in its supplemental brief that a dismissal without prejudice was appropriate. The government was entitled to a presumption of good faith when it sought to dismiss an information, it argued, and B.G.G. had to show bad faith to overcome that presumption. The government maintained that it had not acted in bad faith, as reflected by the district court's finding that the government had not acted in bad faith. The government also had not harassed B.G.G., it said; rather, it had filed the information under seal to protect his reputation and had agreed that B.G.G. did not need to be formally arrested or even appear in court. The government argued that its intent to dismiss the information was not a "trick" or a "tactic," but a way to "institute" the charge under section 3282(a) and ensure that it could later...