UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED S'I`ATES OF AMERICA,

V.

Criminal No. 11-00078-02 (CKK)
SERFIDO TRINIDAD PEREZ

FLORIAN,

Defendant.

I)NITED sTATEs 0F AMER1CA,
V.

criminal No. 11-00078-03 (CKK)

vAnELo ALAY ESCQBAR,

Defendant.

IJN!TED sTATEs 0F AMEmcA,
V° cnminal No. 11-00078-04 (CKK)
ESTANISLAQ RAMQS PEREZ,

Defendant.

UNITED STATES OF AMERICA,

V~ criminal No. 11-00078-06 (CKK)

EDGAR GEOVANI PEREZ-SUNIGA,

Defendant.

MEMQRANDUM QRDER
(April 27, 2011)

On April 15, 201 l, the Government filed a [11] M0ti0n to Dismiss the Indictment

/~\

Without Prejudice against four of the six individuals named in the March 17, 2011 [5] Indictment
in this criminal action: (a) Serfido Trinidad Perez Florian; (b) Vahelo Alay Escobar; (c)
Estanislao Ramos Perez;l and (d) Edgar Geovani Perez-Suniga (co11 ctively, the "Four
Defendants"). The Four Defendants opposed the Govemment’s mot on, with the focus of the
parties’ dispute being whether the Indictment should be dismissed against them with or without
prejudice. During a Status Hearing held on April 26, 201l, the Court heard additional argument
from the parties and orally granted the Government’s motion, dismissing the Indictment against
each of the Four Defendants without prejudice, with a written order to follow. This is that
written order.
I. BACKGROUND
On March 17, 2011, the Government filed an [5] Indictment in this criminal action
against the Four Defendants, as well as two other defendants who are not subject to the pending
motion_namely, Luis Lopez and Jose Martin Ruis-Cacho. Distilled to its essence, the
Indictment alleges that the defendants conspired to commit an armed robbery of a Wachovia
Bank in Horsham, Pennsy1vania in early March 201 l. The defendants were all arraigned in this
Court on March 30, 2011, each entering a plea of not guilty. See Min. Orders (Mar. 30, 2011).
On April 8, 2011, a Criminal Complaint was filed against the Four Defendants in the

United States District Court for the Eastern District of Virginia (the "Virginia district court").
See Criminal Compl., United States v. Perez-Suniga et al., 11-mj-00289 (TCB) (E.D. Va. Apr. 8,

2011), ECF No. [1]. Messrs. Lopez and Ruis-Cacho are not named in the Criminal Complaint.

' Mr. Ramos Perez is also known as Armando Palma Alonzo, and is identified under
both names in the [5] Indictment. By agreement, he is being referred to primarily as Estanis1ao
Ramos Perez in this action. See Min. Order (Mar. 30, 2011).

2

In the Criminal Complaint, the Four Defendants, meanwhile, are charged with a conspiracy in
which they are alleged to have committed four separate armed robberies in the Commonwealth of
Virginia and to have planned an armed robbery of a drug dealer in the District of Columbia. See
Aff. in Supp. of a Criminal Compl., United States v. Perez-Suniga et al., 1l-mj-00289 (TCB)
(E.D. Va. Apr. 8, 2011), ECF No. [3]. The Four Defendants are also charged with a conspiracy
to commit the same planned robbery of the Wachovia Bank in Horsham, Pennsylvania that is the
subject of the criminal action before this Court. See id.

On April 15, 201l, citing this intervening development, the Goverment filed a [11]
Motion to Dismiss the Indictment Without Prejudice against the Four Defendants, contending
that these individuals would be better suited for prosecution in the Virginia district court and
therefore requesting the Court’s leave to dismiss the Indictment against them without prejudice.
On April 20, 201 1, each of the Four Defendants filed a written opposition. See ECF Nos. [12]-
[15]. On April 25, 2011, the Government filed its reply.z See ECF No. [18].

On April 26, 2011, the Court held a Status Hearing. See Min. Order (Apr. 26, 2011).

The Four Defendants were each present and represented by counsel. Also present was a Spanish-
language interpreter. After affording each of the parties an opportunity to elaborate upon and
raise any additional arguments pertaining to the Govemment’s Motion to Dismiss the Indictment
Without Prejudice, the Court orally granted the Government’s motion in its entirety, dismissing

the Indictment without prejudice as to each of the Four Defendants, with a written order to

2 Because the Govemment’s motion was filed shortly before a previously scheduled
Status Hearing, the Court set a somewhat expedited briefing schedule, which spanned a holiday
weekend See Min. Order (Apr. 15, 2011); Min. Order (Apr. 21, 201 1). The Government sought
a de minimis extension of time to finalize its reply, as to which no opposition has been filed.

3

follow.
II. LEGAL STANDARD

Under the Federal Rules of Criminal Procedure, the "government may, with leave of the
court, dismiss an indictment, information, or complaint." Fed. R. Crim. P. 48(a). The discretion
of whether to dismiss an indictment, and whether to dismiss it with or without prejudice, lies in
the first instance with the prosecutor. Because that discretion implicates the constitutional
doctrine of separation of powers, the district court’s role in reviewing the prosecutor’s exercise of
its discretion is limited. United States v. Goodson, 204 F.3d 508, 513 (4“‘ Cir. 2000). "[T]he
court does not have primary responsibility, but rather the role of guarding against abuse of
prosecutorial discretion." United States v. Ammidown, 497 F.2d 61 5, 620 (D.C. Cir. l973).

In this case, the locus of the parties’ dispute is not the prosecutor’s discretion to dismiss
an indictment per se, but rather the prosecutor’s discretion to dismiss an indictment without
prejudice. Generally speaking, there is a strong presumption in favor of a dismissal without
prejudice over one with prejudice. United States v. Poina’exter, 719 F. Supp 6, 10 (D.D.C. 1989).
Where, as here, the dismissal does not arise from a constitutional violation, dismissal is normally
without prejudice. United States v. Simmons, 536 F.2d 827, 833 (9“‘ Cir.), cert. denied, 429 U.S.
854 (1976). Nonetheless, in exceptional circumstances, the district court may deny the
prosecutor leave to dismiss an indictment without prejudice. Poindexter, 719 F. Supp. at 10. As
the case law makes clear, this will rarely be appropriate.

When the prosecutor’s discretion is challenged, the prosecutor has the initial burden of
explaining that a dismissal without prejudice would be in the public interest. United States v.

James, 861 F. Supp. 151, 155 (D.D.C. 1994). Once the prosecutor has discharged that threshold

burden, its decision is presumptively valid and the district court may not substitute its judgment
for that of the prosecutor even if it might have reached a different conclusion were it presented
with the issue in the first instance. See Poina’exter, 719 F. Supp. at 10; United States v. Dyal, 868
F.2d 424, 428 (11“‘ Cir. 1989). In order to set aside this presumption of validity, the district court
must conclude that a dismissal without prejudice "would result in harassment of the defendant or
would otherwise be contrary to the manifest public interest." Poindexter, 719 F. Supp. at 10.
Stated somewhat differently, "[t]he presumption that the prosecutor is the best judge of the
public interest is rebutted when the motion to dismiss contravenes the public interest because it is
not made in good faith." United States v. Salinas, 693 F.2d 348, 352 (5“‘ Cir. 1982). In
conducting its analysis, the district court should consider "the purpose sought to be achieved by
the government and its effect on the accused," Poindexter, 719 F. Supp. at 10, bearing in mind
that a dismissal with prejudice may "override the . . . public interest in the enforcement of the
criminal law," Goodson, 204 F.3d at 514.
III. DISCUSSION

In this case, the Goverment has discharged its initial burden of explaining that a dismissal
without prejudice would be in the public interest. Specifically, the Goverrnent explains that it
seeks to dismiss the Indictment in the instant action against the Four Defendants without
prejudice in order to allow for their prosecution in the Virginia district court for, inter alia, the
criminal conduct that is the subject of the instant action. According the Government, such an
approach would promote judicial economy and preserve scarce prosecutorial, defense, and
investigative resources given the respective scope of the two actions and the implications of

venue and jurisdictional limitations. Simply put, whereas the instant action is focused on the

alleged conspiracy to commit an armed robbery of the Wachovia Bank in Horsham,
Pennsylvania, the Criminal Complaint before the Virginia district coprt is not so limited,
encompassing both the same alleged conspiracy as well as all the alleged additional criminal
conduct occurring in Virginia. In other words, the Four Defendants can be charged for the
totality of their alleged criminal conduct in the Virginia district court, something that is not true
of the instant action. Viewed from a slightly different perspective, were the Court to reject the
Government’s request and require it to choose between dismissing the Indictment with prejudice
and proceeding against the Four Defendants before this Court, the result could very well be a
splitting of the charges against the Four Defendants in two concurrent criminal actions-one in
this Court concerning the alleged conspiracy to commit an armed robbery in Horsham,
Pennsylvania, and a second in the Virginia district court concerning the alleged criminal conduct
occurring in that jurisdiction. The Court finds that the Government’s proffered rationale is a
legitimate one, thereby triggering the presumption that its decision is valid and that it has
exercised its prosecutorial discretion in good faith.3 The Court therefore turns to the question of

whether this case presents one of those rare cases where it would be appropriate for the Court to

intervene and override the presumption that the prosecutor is the best judge of the public interest.

F or their part, the F our Defendants have tendered a series of related arguments in support

3 Meanwhile, while not dispositive in the Court’s analysis, the Court is mindful that a
dismissal with prejudice in this action could very well raise issues about the ability of the
Govemment to pursue certain charges against the Four Defendants in the Virginia district court.
There is at least some indication that a dismissal with prejudice might undermine the ability of
the Government to achieve the very purpose sought by the dismissal of the Indictment in this
action_namely, to prosecute the Four Defendants for the totality of their alleged criminal
conduct in a single jurisdiction.

of their position that the Indictment should only be dismissed against them with prejudice."
Whether considered collectively or independently, their arguments are insufficient to overcome
the presumption that the Government has exercised its prosecutorial discretion in good faith.
First, the Four Defendants have argued most forcefully that permitting the Government to

dismiss the Indictment against them without prejudice would not protect them from future
prosecutorial harassment-namely, the prospect that they might at some unspecified point in the
future be re-indicted in this Court. While the abuse of prosecutorial discretion may warrant
denying leave to dismiss an indictment without prejudice, there is no evidence of such abuse in
this case. The Government has expressly disavowed any present intention to pursue criminal
charges against the Four Defendants in this jurisdiction; rather, the Govemment has consistently
maintained that its intention is to pursue the full gamut of available criminal charges against the
Four Defendants in the Virginia district court. The mere fact that a dismissal without prejudice
leaves the door open to hypothetical future prosecution in this jurisdiction is not tantamount to
prosecutorial harassment; were that the case, it is difficult to imagine when dismissal without
prejudice would ever be appropriate. Plainly, this is not the law; the case law is clear that there is
a presumption in favor of a dismissal without prejudice over a dismissal with prejudice.
Moreover, a dismissal without prejudice in this action does not mean that the Four Defendants
must suffer an indefinite future of uncertainty over the status of this action. A Criminal
Complaint has already been filed in the Virginia district court and the Government must proceed

in that action; once jeopardy attaches in that court on the charges at issue in this action, that is the

4 While the Four Defendants have each provided separate reasons for opposing the
Government’s motion, the Court shall discuss those reasons collectively for purposes of
convenience.

end of the matter in this Court. Furthermore, in order to provide the Four Defendants with added
peace of mind, the Government has represented that it would be prepared to request that the
dismissal against the Four Defendants in this action be converted from one without prejudice to
one with prejudice once jeopardy attaches in the Virginia district co\irt.

Second, the F our Defendants contend that a dismissal with prejudice would prevent the
Government from "parking" this action in another jurisdiction in order to avoid the strictures of
the Speedy Trial Act. The contention is entirely speculative; they have expressly conceded that
there is nothing in the record to suggest that the Govemment has sought to "par " them in one
jurisdiction in order to secure a strategic advantage in another. lndeed, the Govemment has
moved fairly swiftly in prosecuting the instant action, which remains in its early stages, and the
Four Defendants previously consented to a continuance of their Speedy Trial Rights in this action
in order to review the extensive discovery produced by the Govemment. While a prosecutor’s
attempt to circumvent the requirements of the Speedy Trial Act through the mechanism of a
dismissal without prejudice may in some circumstances justify denying leave to dismiss an
indictment without prejudice, this is not such a case. The Four Defendants’ conjecture does not
suffice to rebut the presumption of validity and good faith accorded to the Government’s
decision.

Third, the Four Defendants complain that there is no factual or legal rationale for the
Government to request that the Indictment in this action be dismissed against them while Messrs.
Lopez and Ruis-Cacho remain to be prosecuted before this Court. The Government’s rejoinder is

simple and persuasive-Messrs. Lopez and Ruis-Cacho have not been implicated in the alleged

additional criminal conduct occurring in Virginia and, as a result, have not been named in the

Criminal Complaint in the Virginia district court.

ln sum, the Four Defendants have failed to establish the sort of extraordinary
circumstances that would justify setting aside the presumption that the Govemment in this case
has exercised its prosecutorial discretion in good faith and in the public interest. The
Government has explained why it seeks a dismissal without prejudice, and there is no evidence
that it is acting in bad faith or has otherwise abused its prosecutorial discretion. 'l`herefore, the
Court concludes that a dismissal without prejudice is appropriate.

IV. CONCLUSION

For the reasons set forth above, it is, this 27“‘ day of April, 20l1, hereby

ORDERED that the Government’s [11] Motion to Dismiss the Indictment Without
Prejudice is GRANTED and the [5] Indictment is DISMISSED WITHOUT PREJUDICE against
Serfido Trinidad Perez Florian (2), Vahelo Alay Escobar (3), Estanislao Ramos Perez (4), and
Edgar Geovani Perez-Suniga (6); and it is further

ORDERED that the Government’s [16] Motion for Extension of Time to File is
GRANTED nunc pro tunc_the Government’s [18] Omnibus Reply to the Defendants’
Responses and Opposition to the Government’s Motion to Dismiss the Indictment Without
Prejudice is deemed to be timely filed.

SO ORDERED.

treas rita - 
COLLEEN KOL'LAR-KOTELLY
United States District Judge

