                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
            ___________

             No. 00-1890
            ___________

United States of America,               *
                                        *
            Appellee.                   *
                                        *
      v.                                *
                                        *
Andres Jacobo-Zavala,                   *
                                        *
            Appellant.                  *
            ___________
                                            Appeal from the United States
             No. 00-2040                    District Court for the
            ___________                     District of Nebraska.

United States of America,              *
                                       *
            Appellee.                  *
                                       *
      v.                               *
                                       *
Rafael Loeza-Gordillo,                 *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: October 23, 2000

                                 Filed: February 23, 2001
                                  ___________

Before WOLLMAN, Chief Judge, LAY, and BEAM, Circuit Judges.
                             ___________
WOLLMAN, Chief Judge.

       Andres Jacobo-Zavala was convicted of possession with intent to distribute and
conspiracy to distribute methamphetamine. Rafael Loeza-Gordillo was convicted of
conspiracy to distribute methamphetamine. Both men appeal, arguing that the district
court improperly denied leave of court to dismiss the indictment against them under
Federal Rule of Criminal Procedure 48(a). We reverse.

                                            I.

      Police in Omaha, Nebraska, arrested Jacobo-Zavala and Loeza-Gordillo in the
course of a controlled delivery of methamphetamine on October 11, 1998. A federal
grand jury indicted Jacobo-Zavala for possession with intent to distribute
methamphetamine in violation of 21 U.S.C. section 841(a). It indicted both men for
conspiracy to distribute methamphetamine in violation of 21 U.S.C. sections 841(a) and
846.

       A few days before trial, the parties entered into an agreement whereby the
federal indictments would be dismissed and the charges brought in Nebraska state court
in exchange for the defendants’ guilty pleas. Both men would be subject to a
mandatory five-year sentence, a significantly shorter prison term than would be
possible under the federal sentencing guidelines. As a matter of courtesy, the
prosecutor called the district judge to inform him of the agreement. No record exists
of this conversation, and the parties acknowledge that their memories of the
conversation are imperfect. The result of the conversation, however, is not in dispute.
After telling the district judge that she intended to dismiss the federal indictments
because the penalty in state court was, in her opinion, sufficient punishment for the
defendants’ crimes, the Assistant United States Attorney was given to understand that
the district court would not grant leave of court to dismiss the indictment because it did



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not consider the dismissal to be in the public interest. The case proceeded to trial, and
the defendants were convicted.

      The defendants then moved for a judgment of acquittal under Federal Rule of
Criminal Procedure 29 based on the district court’s refusal to grant leave for the
government to dismiss the indictment. The district court denied the motion, stating that
because the government had not filed a formal motion to dismiss the indictment, leave
had not actually been withheld and that, if leave had been denied, denial was proper
because the proposed dismissal would not have been in the public interest. Jacobo-
Zavala was sentenced to 168 months in prison on each count, to be served
concurrently, and Loeza-Gordillo was sentenced to 151 months in prison.

                                           II.

       Rule 48(a) provides a mechanism for the government to dismiss an indictment,
stating, in pertinent part, “[t]he 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.” We review a district court’s denial of a motion
for a Rule 48(a) dismissal for abuse of discretion. United States v. Smith, 55 F.3d 157,
158 (5th Cir. 1995).

      The defendants contend that the district court abused its discretion when it
refused leave to dismiss the indictment under Rule 48(a). The government argues that
because no motion to dismiss was actually filed, the matter was never placed in issue.

      Noting that the “by leave of court” clause represents a departure from the
common law tradition giving the executive complete control over whether to prosecute
an indictment, the Supreme Court has observed that:




                                          -3-
      The words “leave of court” were inserted in Rule 48(a) without
      explanation. While they obviously vest some discretion in the court, the
      circumstances in which that discretion may properly be exercised have not
      been delineated by this Court. The principal object of the “leave of court”
      requirement is apparently to protect a defendant against prosecutorial
      harassment, e.g., charging, dismissing, and recharging, when the
      Government moves to dismiss an indictment over the defendant’s
      objection. But the Rule has also been held to permit the court to deny a
      Government dismissal motion to which the defendant has consented if the
      motion is prompted by considerations clearly contrary to the public
      interest.

Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977) (per curiam). Thus, courts have
recognized two circumstances in which the district court may deny leave to dismiss an
indictment: when the defendant objects to the dismissal, and when dismissal is clearly
contrary to the manifest public interest. United States v. Gonzalez, 58 F.3d 459, 461
(9th Cir. 1995); United States v. Hamm, 659 F.2d 624, 629 (5th Cir. 1981); see also
United States v. Richards, 213 F.3d 773, 786-87 (3d Cir. 2000) (“refusal to dismiss is
appropriate only in the rarest of cases”). Because the defendants in this case did not
object to dismissal, it is the second basis that we must now consider.

      A district court's discretion to deny leave is sharply limited by the separation of
powers balance inherent in Rule 48(a) itself, because a district court that denies leave
to dismiss an indictment is essentially exercising judicial review of the prosecutor's
exercise of executive authority. See id. “‘Few subjects are less adapted to judicial
review than the exercise by the Executive of his discretion in deciding when and
whether to institute criminal proceedings, or what precise charge shall be made, or
whether to dismiss a proceeding once brought.’” Id. at 786 (quoting Newman v.
United States, 382 F.2d 479, 480 (D.C. Cir. 1967) (Burger, J.)).

        As the Ninth Circuit recently observed, the question presented by a challenge to
a district court’s denial of leave to dismiss an indictment to which the defendant does


                                          -4-
not object is “whether, consistent with the separation of powers, the judiciary may
encroach upon the right of the executive to make basic decisions as to who may be
criminally charged, and with what they may be charged.” United States v. Garcia-
Valenzuela, 232 F.3d 1003 (9th Cir. 2000). Although the district court may take into
account the public interest concerns created by dismissal of an indictment, it may not
substitute its judgment for that of the prosecutor. Hamm, 659 F.2d at 631.

      [The executive branch] retain[s] broad discretion to enforce the Nation’s
      criminal laws. They have this latitude because they are designated by
      statute as the President’s delegates to help him discharge his
      constitutional responsibility to “take care that the Laws be faithfully
      executed.” U.S. Const. Art. II, § 3. As a result, the presumption of
      regularity supports their prosecutorial decisions and, in the absence of
      clear evidence to the contrary, courts presume that they have properly
      discharged their official duties.

United States v. Armstrong, 517 U.S. 456, 464 (1996).

       “The decision to dismiss an indictment implicates concerns that the Executive
is uniquely suited to evaluate.” Gonzales, 58 F.3d at 462. Because it is the prosecutor,
and not the district court, who is primarily responsible for balancing public and
individual interests in determining who should be prosecuted, “a district court should
be reluctant to deny [her] request.” Id. The court is limited to assessing whether the
government’s motion is contrary to manifest public interest because it is not based in
the prosecutor’s good faith discharge of her duties. United States v. Palomares, 119
F.3d 556, 558 (7th Cir. 1997); Smith, 55 F.3d at 159; Hamm, 659 F.2d at 629-30
(court’s discretion limited to circumstances indicating “betrayal of the public interest,”
such as bribery, inconvenience to the prosecutor, or personal dislike for the victim of
a crime).

      Our views on the scope of a district court’s discretion to deny a Rule 48(a)
dismissal on public interest grounds were set forth in United States v. Dupris, 664 F.2d

                                           -5-
169, 174 (8th Cir. 1981). In that case, the defendant had raised a challenge to federal
jurisdiction based upon the premise that the town of Eagle Butte, South Dakota, was
no longer a part of Indian country because it was open to non-Indian settlement, a
question with wide-ranging ramifications. Dupris, 664 F.2d at 170. During the four-
year period in which the case made its way to the Supreme Court and back to the
district court without a resolution of the underlying jurisdictional question, the evidence
deteriorated to the point that the prosecutor moved to dismiss the indictment under Rule
48(a). Id. at 170 n.4. Although we agreed with the district court that the public did
have an interest in the outcome of the jurisdictional question, we nonetheless reversed
its decision to withhold leave of court:

      In this case, the court did not act to protect the government against
      prosecutorial harassment. Nor was the Government’s motion prompted
      by considerations clearly contrary to the public interest. The Government
      provided the court with an adequate and proper reason for dismissal: that
      the evidence needed for conviction had been lost or misplaced and the
      memories of key witnesses had faded. The court made no finding of bad
      faith on the part of the government. The reason proffered at least
      supports a dismissal under Rule 48(a), if indeed it does not require it.

Id. at 174-75 (citations omitted).

       We recently emphasized the limited scope of a district court’s discretion in ruling
on a Rule 48(a) motion to dismiss an indictment, saying, “Indeed, the district court had
to grant the motion unless the dismissal ‘would be clearly contrary to manifest public
interest, determined by whether the prosecutor’s motion to dismiss was made in bad
faith.’” United States v. Rush, Nos. 00-2557/00-2765, 2001 WL 4352, at *1 (8th Cir.
Jan. 19, 2001) (per curiam) (quoting United States v. Goodson, 204 F.3d 508, 512 (4th
Cir. 2000)).

       Before considering the merits of the defendants’ contention that the district court
erred in denying leave to dismiss the indictment, we must address the government’s

                                           -6-
contention that because no Rule 48(a) motion was ever made, the request for leave to
file a dismissal was never placed before the district court for decision.

        Whatever the precise wording of the conversation between the Assistant United
States Attorney and the district court, it is clear that the prosecutor had decided to
dismiss the indictments and that her decision not to do so was based solely on her
understanding that leave of court would not be granted. The government acknowledges
in its brief that it had arrived at an agreement with the defendants, and that its intention
to dismiss the indictment was “discouraged” when “[t]he Court . . . stated to the
prosecutor what it was likely to do if such a motion were presented for the reasons
stated.” (Appellee’s Brief at 50.) That the district court’s infringement on the exercise
of the government’s executive function did not take place in the context of a formal
motion does not diminish that infringement. Given the centrality of the doctrine of
separation of powers to the functioning of our government, we will not adopt a rule that
allows the judiciary to usurp executive authority so long as it does so off the record and
in such a manner as to preclude the ministerial act of filing a formal written motion to
dismiss the indictment.

       Nor does the language of Rule 48(a) require such formalism. Grammatically, the
rule requires that leave of court be obtained before the dismissal is filed: “[The
government] may by leave of court file a dismissal of indictment . . . ” The rule implies
that leave of court is to be obtained prior to filing; it does not require that such leave
be obtained through a formal motion. Because the record indicates unequivocally that
the dismissal would have been filed had the district court not expressed its decision to
deny leave to file it, the defendants’ claim does not fail for lack of a formal motion.

       We turn then to the question whether the district court abused the narrow
discretion granted it by Rule 48(a). In denying the defendants’ Rule 29 motion for a
verdict of acquittal, the district court explained its reasons for declining to grant leave
of court:

                                            -7-
      I think I was within my rights. I realize the prosecution has a great deal
      of discretion with regard to who it’s going to prosecute and who it isn’t.
      And I certainly don’t want to get involved in that and that’s not my intent.
      But I don’t believe the reason advanced here was sufficient. Prosecutors
      take--U.S. Attorneys or Assistant United States Attorneys take an oath
      just like judges to uphold the law. And I don’t believe that simply
      because if the stated reason was the only reason and the only one given
      to me was that the punishment was too severe for the acts involved . . .
      that that’s a valid reason. I don’t consider that to be in the public interest.
      It might be a way to get rid of a whole lot of cases and prosecutions, but
      that’s not why laws are passed. For those reasons I’m denying it.

The district court further noted that, in its opinion, the defendants were no different
from others who had been prosecuted in federal court for similar crimes and subjected
to federal penalties.

      It is clear from the reasons it expressed that the district court denied leave of
court because it disagreed with the prosecutor’s assessment of what penalty the
defendants ought to face. The decision not to prosecute, however, is central to the
executive power granted to United States Attorneys. There is no suggestion that the
government acted in bad faith or had improper motives in attempting to dismiss the
charges, and strategic decisions such as whether defendants ought to be tried in a
federal forum are at the heart of the function of prosecution vested in the Executive
Branch. Accordingly, we conclude that the district court overstepped its authority and
abused its discretion when it withheld leave of court to file a dismissal of the
indictment.

       The judgment is reversed, and the case is remanded to the district court with
directions to vacate the convictions and to grant leave to file a dismissal of the
indictment.




                                           -8-
BEAM, Circuit Judge, dissenting.

       I agree with most of the court's analysis of existing precedent. However, I
believe that applying this precedent to the circumstances of this case requires a
different result.

       It is true that because of the separation of powers doctrine we apply an
attenuated standard when we gauge any abuse of discretion in the denial of a Rule
48(a) motion. Whether a dismissal is contrary to the public interest, or not, must be
balanced under this more limited measure. It seems to me, however, that the thrust of
the established rule flows in a direction opposite from that which is followed by the
court in its opinion.

       There are no disputed matters in this case that traditionally fall under the control
of the executive branch. Specifically, there are no real issues concerning the strength
of the evidence, alternative theories of the law, or other factors that influence questions
of guilt or innocence or whether prosecutorial resources should or should not be
expended. Indeed, the powers trenched upon by the federal prosecutor's proposed
motion are powers assigned to the judicial branch. As noted in Mistretta v. United
States, sentencing in a criminal case is "primarily a judicial function." 488 U.S. 361,
390 (1989). Thus, in this case, the public interest will best be served by giving
deference to the judicial officer rather than to the prosecutor.

       The trial judge is also correct when he notes that prosecutors, like judges, are
charged with upholding the law. The prosecutor's behavior in this case was the very
antithesis of such a course of conduct. As I understand the facts, the prosecutor's
reason for filing the dismissal motion was that she simply disagreed with federal
sentencing law as it is applicable to the crimes in question. To thwart the impact of this
existing law, she proposed a course of conduct that made less onerous state sentencing
statutes applicable. Not only did this proposed action impinge upon federal judicial

                                           -9-
prerogatives, it also was intended to circumvent congressional policy directed toward
these particular criminal defendants.

       In my view, these prosecutorial maneuvers were clearly contrary to manifest
public interest, see United States v. Gonzalez, 58 F.3d 459, 461 (9th Cir. 1995), and
denial of the motion to dismiss was well within the discretion of the district court. The
district court should be affirmed.

      Accordingly, I dissent.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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