United States District Court, D. Nevada
M. Navarro, Ungates District Court Chief Judge
before the Court is the Government's Motion to Dismiss
without prejudice Counts 1 and 2 of the Superseding
Indictment against Defendant Gregory P. Burleson
(“Defendant”). (ECF No. 1968). Defendant filed a
Response, arguing that the dismissal should instead be with
prejudice (ECF No. 1973), and the Government filed a Reply
(ECF No. 1986).
March 2, 2016, a federal grand jury sitting in the District
of Nevada returned a Superseding Indictment charging
Defendant and eighteen other co-defendants with numerous
counts related to a confrontation on April 12, 2014, with
Bureau of Land Management (“BLM”) Officers in
Bunkerville, Nevada. (ECF No. 27). A jury trial of Defendant
and five of his co-defendants began on February 6, 2017. On
April 24, 2017, the jury reached a partial verdict, finding
Defendant guilty of Counts 5, 6, 8, 9, 12, 14, 15, and 16.
(ECF No. 1887). However, the jury deadlocked on Counts 1 and
2 as to Defendant. (Id.). Upon finding manifest
necessity, the Court declared a mistrial on the deadlocked
counts and set retrial for June 26, 2017. (Id.). On
May 16, 2017, the Government filed the instant Motion to
Dismiss. (Gov't Mot. to Dismiss, ECF No. 1968).
Government seeks to dismiss without prejudice Counts 1 and 2
against Defendant under Federal Rule of Criminal Procedure
(“FRCP” or “Rule”) 48. The Government
explains that it “seeks dismissal here simply as a
matter of judicial economy.” (Gov't Mot. to Dismiss
4:3). The Government argues that such a dismissal is properly
without prejudice because “while [it] does not intend
to proceed with a second trial on the deadlocked counts at
this time, it nonetheless expressly reserves its right to
seek a superseding indictment if this Court (or, the Ninth
Circuit) reverses or vacates the verdicts on the extant
counts of conviction.” (Id. 4:15-18).
responds and objects that dismissal should be with prejudice.
(Def. Resp. 1:17-19, ECF No. 1973). Defendant argues
dismissal with prejudice is proper because “the first
trial established that the [G]overnment will never be able to
prove” Counts 1 and 2, and a dismissal without
prejudice “will leave [Defendant] in an unnecessary
state of limbo while felony charges remain pending
indefinitely against him.” (Id. 1:20-27).
provides: “The government may, with leave of court,
dismiss an indictment, information, or complaint.” Fed.
R. Crim. P. 48(a). The Ninth Circuit has explained:
Before the promulgation of [Rule 48(a)], the common law
provided prosecutors unfeterred discretion, before empaneling
the jury, to enter a nolle prosequi, a decision not
to prosecute, without first obtaining the court's
consent. Because of the concern that prosecutors were abusing
this discretion and harassing defendants by indicting,
dismissing, and reindicting without triggering the
protections of the double jeopardy clause, Rule 48(a) was
enacted to provide a check on prosecutorial behavior. Thus,
federal prosecutors now must seek “leave of
court” to dismiss without prejudice. While the
judiciary has been authorized to supervise prosecutorial
decisions to dismiss, Rule 48(a) was not enacted for the
purpose of usurping the traditional role of the prosecutor to
determine whether to terminate a pending prosecution.
United States v. Hayden, 860 F.2d 1483, 1487 (9th
Cir. 1988) (internal citations and quotation marks omitted).
fundamental consideration in assessing the propriety of a
prosecutor's Rule 48(a) dismissal motion is whether the
motion is made in good faith. Id. If the district
court finds that the prosecutor is acting in good faith in
making its Rule 48(a) motion, it should grant the motion.
Conversely, Rule 48(a) empowers the district court to
exercise its discretion in denying the motion when it
specifically determines that the government is operating in
bad faith. Id. Rule 48(a) allows the government,
provided it is not acting in bad faith, to dismiss an
indictment without prejudice and later to reindict based on
the same or similar charges. Id. at 1488.
“[W]hen the government requests a Rule 48(a) dismissal
in good faith, the district court is duty bound to honor the
request.” Id. If the district court finds that
the government utilized the Rule 48(a) motion in bad faith,
the court may reverse its earlier Rule 48(a) ruling.
Id. at 1488-89. In so doing, the court would then be
able to entertain a motion to dismiss with or without
prejudice under Rule 48(b). Id.; see also United
States v. Towill, 548 F.2d 1363, 1368 n.4 (9th Cir.
1977); United States v. Simmons, 536 F.2d 827, 833
(9th Cir. 1976).
Defendant does not assert that the Government has acted in
bad faith or otherwise brings this motion to harass
Defendant. Further, Defendant does not provide any legal
basis or case law to support his assertion that dismissal
with prejudice is proper. The Court finds the Government's
motion was made in good faith, consistent with its stated
purpose of judicial economy. Therefore, the Court must grant
the Government's motion and dismiss without prejudice.
See Hayden, 860 F.2d at 1488.
IT IS HEREBY ORDERED that the Government's Motion to
Dismiss (ECF No. 1968) is GRANTED.
FURTHER ORDERED that Counts 1 and 2 of the Superseding
Indictment as to Defendant Gregory P. Burleson are DISMISSED