                             In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-3037
IN RE: UNITED STATES OF AMERICA,
                                                           Petitioner.
                         ____________
        Petition for a Writ of Mandamus to the United States
        District Court for the Western District of Wisconsin.
                No. 03 CR 2—John C. Shabaz, Judge.
                             ____________
 SUBMITTED SEPTEMBER 2, 2003—DECIDED SEPTEMBER 16, 2003
                         ____________


  Before POSNER, EASTERBROOK, and DIANE P. WOOD, Circuit
Judges.
  POSNER, Circuit Judge. Kenneth Bitsky, the defendant
in the case that gives rise to the government’s petition for
mandamus, was indicted on one count of violating 18 U.S.C.
§ 242 (deprivation of civil rights under color of law) and two
counts of violating 18 U.S.C. § 1512(b)(3) (obstruction of
justice). According to the indictment, Bitsky, a Wisconsin
police officer, had assaulted an arrested person and had
then tried to induce another officer to write a false arrest
report justifying Bitsky’s use of force and had threatened
another officer in an effort to prevent her from informing on
him. The government and Bitsky made a plea agreement
under which he would plead guilty to one of the obstruction
of justice counts and the government would dismiss the
other two counts. At the sentencing hearing the district
judge asked the prosecutor why the civil rights count, for
2                                                 No. 03-3037

which the sentencing range was 24 to 30 months, had been
dropped, when the sentencing range for the count to which
Bitsky had agreed to plead guilty was only 6 to 12 months.
(Both ranges were computed on the basis of a two-level
decrease in the base offense level for acceptance of responsi-
bility.) The prosecutor explained that his main aim was to
get a felony conviction, which would bar Bitsky from
remaining in law enforcement, without the risk of a trial,
which might result in Bitsky’s being acquitted. The judge
rejected the plea agreement on the ground that the one
count of which Bitsky would be convicted if the agreement
were accepted did not reflect the gravity of his actual
offense. U.S.S.G. § 6B1.2(a).
  Bitsky decided to go ahead and plead guilty even though
he no longer had the protection of a plea agreement. The
judge accepted his plea and, after denying him an ac-
ceptance-of-responsibility deduction, sentenced him to 16
months in prison, the top of the guideline range without
such a deduction. The government then filed a motion to
dismiss the other two counts. The district court dismissed
the other obstruction of justice count, but refused to dismiss
the civil rights count and instead appointed a private lawyer
to prosecute that count. The government asks us to issue a
writ of mandamus commanding the district judge to dismiss
that count as well and to rescind the appointment of the
prosecutor. The judge has responded, stating as his reason
for refusing to dismiss the civil rights count and for appoint-
ing a private lawyer to prosecute it that the government was
trying to circumvent his sentencing authority because it
considered the sentence that he would have imposed had
Bitsky been convicted of the civil rights violation excessive,
even though it would have been consistent with the sentenc-
ing guidelines.
No. 03-3037                                                     3

  No statute authorizes the government to appeal from a
denial of the dismissal of a count or case, but we do not
think that there can be much doubt that such relief is
available by way of mandamus. In re Richards, 213 F.3d 773,
789 n. 9 (3d Cir. 2000), suggests that mandamus would be
appropriate if the district court refused to grant the gov-
ernment’s motion to dismiss, and Hilbert v. Dooling, 476 F.2d
355, 362 (2d Cir. 1973), granted mandamus to compel the
district court to grant the defendant’s motion to dismiss a
charge because the government had violated a circuit
rule requiring prompt disposition of a criminal charge. The
historic and still the central function of mandamus is to
confine officials within the boundaries of their authorized
powers, Gulfstream Aerospace Corp. v. Mayacamas Corp., 485
U.S. 271, 289 (1988); United States v. Spilotro, 884 F.2d 1003,
1007 (7th Cir. 1989); Maloney v. Plunkett, 854 F.2d 152, 154
(7th Cir. 1988); United States v. Davis, 285 F.3d 378 (5th Cir.
2002), and in our system of criminal justice, unlike that of
some foreign nations, the authorized powers of federal
judges do not include the power to prosecute crimes. Wayte
v. United States, 470 U.S. 598, 607 (1985); United States
v. Martin, 287 F.3d 609, 623 (7th Cir. 2002). “A judge in
our system does not have the authority to tell prosecutors
which crimes to prosecute or when to prosecute them.”
United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992).
  There is an exception for criminal contempts of court,
Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787,
800-01 (1987); United States v. Vlahos, 33 F.3d 758, 762 (7th
Cir. 1994), but it is irrelevant to this case. The theory behind
the exception is that the judiciary should not be dependent
on the executive to assure compliance with its orders; but no
judicial order was flouted in this case. In refusing to dismiss
the civil rights count against Bitsky, the district judge was
telling the government which crimes to prosecute, and, as
4                                                 No. 03-3037

these were not crimes against the judiciary, in doing so he
stepped outside the boundaries of his authorized powers.
See also United States v. Martin, supra, 287 F.3d at 623; United
States v. Jacobo-Zavala, 241 F.3d 1009, 1014 (8th Cir. 2001);
United States v. Garcia-Valenzuela, 232 F.3d 1003, 1007-08 (9th
Cir. 2000); United States v. Smith, 55 F.3d 157, 159 (4th Cir.
1995).
   It is true that Rule 48(a) of the Federal Rules of Criminal
Procedure requires leave of court for the government to
dismiss an indictment, information, or complaint—or, we
add, a single count of such a charging document. United
States v. Delagarza, 650 F.2d 1166, 1167 (10th Cir. 1981) (per
curiam); 3A Charles Alan Wright, Federal Practice and
Procedure § 811 (2d ed. 1982). But the purpose, at least the
principal purpose, is to protect a defendant from the gov-
ernment’s harassing him by repeatedly filing charges and
then dismissing them before they are adjudicated. Rinaldi v.
United States, 434 U.S. 22, 29 n. 15 (1977) (per curiam); In re
Richards, supra, 213 F.3d at 787; United States v. Palomares,
119 F.3d 556, 558 (7th Cir. 1997); United States v. Gonzalez, 58
F.3d 459, 461 (9th Cir. 1995); United States v. Hamm, 659 F.2d
624, 628 (5th Cir. Oct. 1981) (en banc). In such a case the
judge might rightly condition dismissal on its being with
prejudice. United States v. Derr, 726 F.2d 617, 619 (10th Cir.
1984); United States v. Towill, 548 F.2d 1363, 1369-70 (9th Cir.
1977). There is no issue of that sort here. The government
wants to dismiss the civil rights count with prejudice, and
that is what Bitsky wants as well. The district judge simply
disagrees with the Justice Department’s exercise of prosecu-
torial discretion. As he explained in his response to the
petition for mandamus, he thinks the government has
exaggerated the risk of losing at trial: “the evidence was
strong and conviction extremely likely.” The judge thus is
playing U.S. Attorney. It is no doubt a position that he could
fill with distinction, but it is occupied by another person.
No. 03-3037                                                   5

We add that this is not a case (not that it would make a
difference to our analysis) in which a federal prosecutor is
operating without supervision. The filing of a petition for
mandamus on behalf of the federal government requires
authorization by the Solicitor General of the United States.
  We are mindful of speculations in some judicial opinions
that a district judge could properly deny a motion to dis-
miss a criminal charge even though the defendant had
agreed to it. These opinions say that such a motion should
be denied if it is in bad faith or contrary to the public
interest, as where “the prosecutor appears motivated by
bribery, animus towards the victim, or a desire to attend a
social event rather than trial.” In re Richards, supra, 123 F.3d
at 787. (The “bad faith or contrary to the public interest”
formula is also found, though not necessarily in those
words, in Rinaldi v. United States, 434 U.S. 22, 30 (1977) (per
curiam); United States v. Martin, supra, 287 F.3d at 623;
United States v. Jacobo-Zavala, supra, 241 F.3d at 1012-13;
United States v. Garcia-Valenzuela, supra, 232 F.3d at 1007-08;
United States v. Palomares, supra, 119 F.3d at 558; United
States v. Smith, supra, 55 F.3d at 158-59; United States v.
Hamm, supra, 659 F.2d at 630; United States v. Cowan, 524
F.2d 504 (5th Cir. 1975), and United States v. Ammidown, 497
F.2d 615, 620 (D.C. Cir. 1973). We are unaware, however,
of any appellate decision that actually upholds a denial of
a motion to dismiss a charge on such a basis. That is not
surprising. The Constitution’s “take Care” clause (art. II, § 3)
places the power to prosecute in the executive branch, just
as Article I places the power to legislate in Congress. A
judge could not properly refuse to enforce a statute because
he thought the legislators were acting in bad faith or that the
statute disserved the public interest; it is hard to see,
therefore, how he could properly refuse to dismiss a pros-
6                                                 No. 03-3037

ecution merely because he was convinced that the prosecu-
tor was acting in bad faith or contrary to the public interest.
   The Constitution does place judicially enforceable limits
on the powers of the nonjudicial branches of the gov-
ernment—for example, the government may not make
its prosecutorial decisions on racially discriminatory
grounds—but they are the limits found in the Constitution
and thus do not include “bad faith” and “against the public
interest.” Custom, limited prosecutorial resources that com-
pel prioritizing prosecutions, federal criminal statutes that
overlap with each other and with state criminal statutes,
plea bargaining, and the federal sentencing guidelines
themselves combine to lodge enormous charging discretion
in the Justice Department, to the occasional frustration of
judges—yet without giving rise to any judicial remedy. See,
e.g., United States v. Batchelder, 442 U.S. 114, 123-24 (1979);
The Confiscation Cases, 74 U.S. (7 Wall.) 454, 457 (1868).
  Paradoxically, the plenary prosecutorial power of the
executive branch safeguards liberty, for, in conjunction with
the plenary legislative power of Congress, it assures that no
one can be convicted of a crime without the concurrence of
all three branches (again, criminal contempt of judicial
orders constitutes a limited exception). When a judge
assumes the power to prosecute, the number shrinks to two.
  Even if a federal judge could properly deny, on the basis
of bad faith or contravention of the public interest, a motion
to dismiss a criminal charge, it would not follow that he
could appoint a prosecutor. Presumably an assistant U.S.
attorney who accepts a bribe, wants to go on vacation rather
than conduct a trial, etc., is acting alone rather than at the
direction or with the approval of the Justice Department,
and a different assistant U.S. attorney would continue with
the prosecution. In any event, a judge could not possibly
No. 03-3037                                                 7

win a confrontation with the executive branch over its
refusal to prosecute, since the President has plenary power
to pardon a federal offender, U.S. Const. art. II, § 2, cl.
1—even before trial or conviction. Ex parte Garland, 71 U.S.
(4 Wall.) 333, 380 (1866).
  The government’s petition for mandamus is granted and
the district judge is ordered to grant the government’s mo-
tion to dismiss the civil rights count against Bitsky, and to
vacate the appointment of the special prosecutor.

A true Copy:
       Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                    USCA-02-C-0072—9-16-03
