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August 7, 2022
Interesting Eight Circuit panel ruling rejecting district judge's refusal to dismiss counts in plea process
Thanks to this round up of circuit rulings, I just saw an interesting little Eight Circuit panel ruling in US v. Bernard, No. 21-3412 (8th Cir. Aug. 2, 2022) (available here). Here are the essential, though interesting folks should check out the full opinion:
The district court had strong views about what charges fit Tiffany Bernard’s crimes. It rejected both her plea agreement and a motion by the government to dismiss four of the five counts in the indictment. The latter ruling went too far, which is why we reverse and remand with instructions to grant the government’s motion....
The parties frame the issue around Federal Rule of Criminal Procedure 48(a), which permits the government, “with leave of [the] court,” to dismiss “an indictment, information, or complaint.”...
Even if the government had to get “leave of [the] court,” it is no blank check for second-guessing charging decisions. To the contrary, “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding . . . whether to dismiss a proceeding once brought.” United States v. Jacobo-Zavala, 241 F.3d 1009, 1012 (8th Cir. 2001) (citation omitted). For that reason, although the district court has some discretion in this area, it “is sharply limited by the separation of powers balance inherent in Rule 48(a).” Id. at 1011–12....
For a dismissal to be “clearly contrary to manifest public interest,” the prosecutor must have had an illegitimate motive rising to the level of bad faith. See United States v. Rush, 240 F.3d 729, 730–31 (8th Cir. 2001) (per curiam) (quotation marks omitted); United States v. Smith, 55 F.3d 157, 159 (4th Cir. 1995). Examples include the “acceptance of a bribe, personal dislike of the victim, and dissatisfaction with the jury impaneled.” Smith, 55 F.3d at 159. Anything less is not enough. See In re United States, 345 F.3d 450, 453 (7th Cir. 2003) (explaining that district courts do not get to “play[] U.S. Attorney”).
Here, the district court merely “disagreed with the prosecutor’s assessment of what penalty the defendant[] ought to face.” Jacobo-Zavala, 241 F.3d at 1014. Rather than addressing whether the prosecutor acted in bad faith, the court just listed the reasons it thought Bernard was getting off too easy: she was “very dangerous” and “by far the most culpable”; Alaniz suffered life-threatening injuries; and a “conviction for robbery alone strip[ped] the [c]ourt of any ability to sentence [her] to a just punishment.” These may be important factors to consider at sentencing, but they are not reasons to interfere with the government’s charging decisions, no matter how much the court may disagree with them.
August 7, 2022 at 10:58 AM | Permalink
Comments
Oh dear! Those nasty prosecutors running the show again!! Doesn't the Eighth Circuit know that they need to be under the thumb of judges? All this separation of powers baloney -- what a con job. Maybe Justice Brown-Jackson can get this mess straightened out.
Posted by: Bill Otis | Aug 7, 2022 11:17:43 AM
I know that there were issues surrounding this in the Flynn case (which became moot before the Supreme Court could put its gloss on how the rule should be interpreted). But even the arguments in the Flynn case by the amicus did not suggest that the trial court had any vast authority to veto a dismissal in an ordinary case. Here, it looks like a simple disagreement over the counts to which the defendant would be pleading, and judge does not get to wear two hats.
Posted by: tmm | Aug 10, 2022 5:38:25 PM