Appeal from the United States District Court for the Northern District of California. D.C. No. CR-92-0031-BAC. Barbara A. Caulfield, District Judge, Presiding.
Before: Stephen Reinhardt, David R. Thompson, and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Reinhardt.
REINHARDT, Circuit Judge:
We are presented with the question whether, and under what circumstances, a district court may deny the government's request for leave to file a dismissal of an indictment. In the case before us, after the defendant fulfilled his agreement to cooperate with the prosecution, the government sought to dismiss one of two remaining counts against him. The district Judge refused leave to dismiss. The defendant appealed, and the United States joins him in urging us to reverse the district court's decision.
Jose de Jesus Gonzalez was indicted on three counts - (1) conspiracy to distribute and possession with intent to distribute cocaine in excess of 500 grams, in violation of 21 U.S.C. §§ 841(a)(1), 846; (2) possession with intent to distribute 2 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1); and (3) carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). He pled guilty to Counts I and III and agreed to cooperate in the prosecution of his codefendants and in the government's investigation of two drug organizations. In return, the government dismissed Count II.
Seven months later, after Gonzalez had assisted the government in connection with several criminal investigations, the United States Attorney filed a sentencing memorandum and a motion under Rule 48(a) of the Federal Rules of Criminal Procedure*fn1 seeking leave to dismiss Count III of the indictment. The memorandum suggested that the district court impose a two-level enhancement for possession of a firearm under U.S.S.G. § 2D1.1. At the sentencing hearing, the Assistant United States Attorney elaborated upon the government's reasons for seeking leave to file the dismissal. First, he noted that, unless the third count was dismissed, Gonzalez would be deported when he was released from jail; he emphasized that, due to the unusual circumstances surrounding the defendant's citizenship and the inadequate assistance rendered by his counsel, Gonzalez was ignorant of this fact when he agreed to plead guilty. Second, the Assistant United States Attorney stated that Gonzalez had provided significant assistance to the government by cooperating in its investigations and that dismissing Count III was therefore in the public interest.
The district Judge refused to grant leave to dismiss Count III on the basis of the deportation justification. She also insisted that, if the government wished to dismiss the count because of Gonzalez's cooperation, it must prove that he had provided "extraordinary significant cooperation." After the prosecutor filed a supplemental sentencing memorandum with two reports detailing the assistance that Gonzalez had provided, a second sentencing hearing took place. The district Judge again refused to grant leave to dismiss, finding that it was clear that Gonzalez had carried a gun in violation of the law and that his cooperation "was not substantial according to this court's standard."
On appeal, both Gonzalez and the United States maintain that the district court abused its discretion in denying the uncontested motion for leave to dismiss under Rule 48(a). We agree.
At common law a prosecutor had unrestricted authority to enter a nolle prosequi without the consent of the court. An early draft of Rule 48(a) adopted this rule but required the prosecutor to state his reasons for seeking a dismissal. The Supreme Court modified the Rule and conditioned the government's right to dismiss upon its obtaining "leave of court." Congress adopted the rule as amended by the Supreme Court. See generally United States v. Salinas, 693 F.2d 348, 350-51 (5th Cir. 1982).
The primary purpose of the requirement that leave of court be obtained is to grant Judges discretion to prevent the government from using its discretionary power to dismiss indictments for purposes of harassment. As the Supreme Court has noted, "the principal object of the 'leave of court' requirement is apparently to protect the defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the government moves to dismiss an indictment over the defendant's objection." See Rinaldi v. United States, 434 U.S. 22, 29 n.15, 54 L. Ed. 2d 207, 98 S. Ct. 81 (1977). Thus, when a defendant contests a Rule 48(a) motion, a court may, when circumstances warrant, exercise its discretion to protect the defendant.
A number of courts have also concluded that the leave of court requirement applies to the other category of cases: those in which the defendant does not contest the Rule 48(a) motion. Although the Supreme Court has reserved judgment on this point, it has observed that some appellate courts have held that the rule permits a "court to deny a government dismissal motion to which the defendant has consented, if the motion is prompted by considerations ...