United States District Court, E.D. Washington
ORDER DISMISSING SUPERSEDING INDICTMENT WITHOUT
O. RICE Chief United States District Judge
the Court is the Government's Motion to Dismiss the
Superseding Indictment against Defendants Rhonda Lee
Firestack-Harvey, Michelle Lynn Gregg, and Roland Mark Gregg,
Without Prejudice. ECF No. 828. The Government seeks to
dismiss the superseding indictment against these Defendants
pursuant to Fed. R. Crim. P. 48(a). It explains that it
“has decided not to prosecute this case further at this
time” without conceding “that the Department of
Justice was not authorized to spend money on this prosecution
after December 2014.” ECF No. 828 at 6-7. The
Government explains that it “may re-assess prosecution
of Defendants . . . if Section 542 is invalidated by
expiration or repeal.” Id. at 7.
have moved for vacatur of their convictions and then
dismissal of the underlying indictment with prejudice. ECF
No. 829. Defendants explain that vacatur of their convictions
is a necessary predicate to the dismissal of the indictment
because judgments have already been entered. Additionally,
Defendants contend that the five year statute of limitations
expired and that jeopardy attached at the jury trial.
Defendants reason that the expired statute of limitations and
the Double Jeopardy clause require that the dismissal be with
Court has reviewed the motions and the file therein and is
fully informed. For good cause shown, the Court grants the
motions in part, but makes no judgment as to the merit or
wisdom of this dismissal.
allows the Government to dismiss an indictment “with
leave of court.” Fed. R. Crim. P. 48(a); United
States v. Garcia-Valenzuela, 232 F.3d 1003, 1007 (9th
Cir. 2000). Leave of court is required “to provide a
check on prosecutorial behavior, ” United States v.
Hayden, 860 F.2d 1483, 1487 (9th Cir. 1988), by guarding
against “prosecutorial harassment, e.g., charging,
dismissing, and recharging, when the Government moves to
dismiss an indictment over the defendant's
objection.” Garcia-Valenzuela, 232 F.3d at
1007-1008 (quoting Rinaldi v. United States, 434
U.S. 22, 29 n.15 (1977) (per curiam). However, the
Court's supervisory role is limited and the motion should
be granted if it is made in good faith. Hayden, 860
F.2d at 1487; see also United States v. Brown, 425
F.3d 681, 682 (9th Cir. 2005) (“Dismissals by the
government are generally presumed to be without
prejudice.”). Conversely, courts should grant the
motion with prejudice if dismissal is sought “for an
improper purpose, such as harassment of the defendant.”
See 3B Charles Alan Wright, et al., Federal Practice
and Procedure § 801, 328-329 (4th ed. 2013).
were solely convicted of the lesser included offense charged
within Count 2 of the Superseding Indictment; manufacture of
less than 100, but more than 50 marijuana plants. The jury
found Defendants not guilty of all other charges in the
Superseding Indictment. Consequently, those other counts are
not at issue and cannot be resurrected.
marijuana was illegal and remains illegal under federal law.
21 U.S.C. § 841(a)(1). After Defendants were charged
with manufacturing marijuana, Congress suspended the
Department of Justice from spending its appropriated funds
toward certain prosecutions. See e.g., Consolidated
and Further Continuing Appropriations Act of 2015, Pub. L.
No. 113-235, tit. V, div. B, § 538 (2014). As the
Government recognizes, this suspension of funding continues
to this day. The Government seeks dismissal of the sole
remaining charge while the cloud of Congress' suspension
of funding persists. If that suspension were to expire or be
repealed, the Government could seek to enforce what has
always been illegal under federal law.
contend the Government could not re-charge them because the
statute of limitations has expired. Defendants are mistaken.
If an indictment is “dismissed for any
reason” the period of limitations is also extended
for a set period of time as specified in 18 U.S.C. §
3288 (emphasis added). That period of time is measured and
begins to accrue when the indictment is dismissed, not when
the crime was committed.
remains to be seen whether Congress will continue its fiscal
suspension of certain marijuana prosecutions. The decision
whether or not the Government could legally (or would)
re-charge Defendants is best left for the day when that
IT IS HEREBY ORDERED:
Government's Motion to Dismiss the Superseding Indictment
against Defendants Rhonda Lee Firestack-Harvey, Michelle Lynn
Gregg, and Roland Mark Gregg, Without Prejudice (ECF No. 828)
Defendants' Motion to Dismiss with Prejudice and Motion
to Vacate the Judgments] of Conviction (ECF No. 829) and
Motion to Expedite (ECF No. 830) are DENIED
in part and GRANTED in part.
Judgments against Defendants Rhonda Lee Firestack-Harvey (ECF
No. 782), Michelle Lynn Gregg (ECF No. 784), and Roland ...