In re Isaac WASHINGTON and Peter Rinaldi, Defendants-Appellants, 544 F.2d 203

LEWIS R. MORGAN, Circuit Judge: Defendants Washington and Rinaldi join with the Government in its appeal of the district court’s denial of a Government motion to dismiss the indictment against defendants. Relevant facts are as follows: defendants were convicted in state court for conspiracy to rob the Doral Beach Hotel in Miami, Florida. Following that conviction, defendants were likewise tried and convicted in federal court for federal crimes arising out of the same facts.

While their conviction was pending on appeal before this court, defendants Sole and Rinaldi filed a motion to supplement the record with the United States Department of Justice Policy [hereinafter referred to as Petite Policy] that precludes the Department from trying a person a second time on essentially the same charges that were the subject of a state prosecution. The Government affirmed the existence of the policy in its response to the motion and subsequently moved for remand of the case to allow it to dismiss the indictment; we granted the Government’s motion to remand to the district court.

Thereafter, arguing that federal prosecution of defendants had violated its own internal policy, the Government filed a motion under F.R.Cr.P. 48(

a) to dismiss the indictment. Utilizing the discretion accorded to it under Rule 48(a), the district court denied the motion. Both the Government and the defendants appealed that denial to a panel of this court. That panel affirmed the district court in an opinion released on May 24, 1976. In re Washington, 531 F.2d 1297 (5th Cir. 1976). Today, this court, en banc, affirms the panel’s holding.

In denying the Government’s motion to dismiss, District Court Judge King relied on language in Rule 48(a), allowing dismissal of an indictment only “by leave of court,” to justify his position that the prosecution did not have total discretion over the matter. We agree that the trial court has a role in any Rule 48(

a) motion to dismiss an indictment. While this court, en banc, has held that the judiciary cannot compel the executive branch to bring prosecution against an individual, United States v. Cox, 342 F.2d 167 (5th Cir. 1965), a distinction exists between the prosecution’s power to initiate and its power to terminate a prosecution. United States v. Cowan, 524 F.2d 504, 509 (5th Cir. 1975). The issue in this case then is whether the district court properly exercised its discretion to deny prosecution’s motion to dismiss an indictment that it had sought and vigorously pursued to trial.

In his order denying the Government’s motion to dismiss, Judge King cited two primary factors for his decision: (1) the timing of the Government’s motion to dismiss, which was not made until after the trial had been completed and a conviction had been obtained and (2) the Government’s admissions, during the trial, of its knowledge that a state conviction had been obtained and of its intention, nonetheless, to pursue the federal prosecution.

The first factor cited by Judge King — the posteonviction timing of the Government’s motion — is not sufficient, alone, to justify the court’s refusal to dismiss the indictment. In Watts v. United States, 422 U.S. 1032, 95 S.Ct. 2648, 45 L.Ed.2d 688 (1975), the Supreme Court vacated the judgment and remanded a case, in which the Government had moved for dismissal on grounds of the Petite Policy after a conviction had been obtained, to permit the Government to dismiss charges against the defendant.

While the opinion in Watts was only a memorandum order that did not analyze the relevancy of the stage of proceeding at which the motion is made, the result reached there persuades us that a motion for dismissal made pursuant to Rule 48(

a) and based on a violation of the Petite Policy cannot be denied merely because it is made after a conviction has been obtained. The second reason advanced by Judge King in his order — the Government’s knowledge of the state conviction throughout its federal prosecution of defendants— raised serious questions for the panel about the Government’s good faith, or lack thereof, in this matter.

The panel noted that the record of the trial in the district court revealed that after the first trial had ended in a mistrial Judge King extensively questioned federal Task Force attorneys on the need for a separate federal prosecution in light of the Florida conviction for the same offense. Specifically, Judge King inquired why the Government could not accept defendants’ tendered pleas of guilty with the suggestion that the federal sentences run concurrently with state sentences and, thereby, forgo a second federal trial. In re Washington, 531 F.2d at 1300.

Instead, Government trial counsel advised the court that because there was grave concern that the state convictions would be reversed on appeal, the Department of Justice was “adamant” in its decision that a federal trial proceed. The Government attorney, himself, stated that he had been “instructed” by officials in Washington to prosecute the matter “to the hilt” and not to accept concurrent sentences. 531 F.2d at 1299-1300.

On the basis of these facts, a majority of the panel concluded that the Government had known all along that state convictions had been obtained against defendants and that its decision to bring the federal prosecution was motivated not by its ignorance that its own internal policies had been violated, but rather, out of its fear that state convictions would be overturned, it had consciously disregarded its own Petite Policy and brought the prosecution in question, 531 F.2d at 1300. The panel based its determination that the Government’s inattention to its own policy was not inadvertent on two considerations.

First, the panel found it incredible to believe that Justice Department superiors in Washington, who knew of the Florida conviction but who had nevertheless instructed the trial attorney to proceed with the federal prosecution, were unaware of the Petite Policy and its violation in this case. 531 F.2d at 1300. Second, the panel noted that the Government’s conduct in this matter raised a clear inference of bad faith on its part — an inference that the Government never attempted to rebut in its hearing before Judge King or in its appeal to this court. 531 F.2d at 1301 n. 7.

Indeed, the Government had never characterized its failure to adhere to its own policy as inadvertent; when asked at oral argument before the panel why the Government had not followed its internal policy in this case, the Government attorney merely stated that the reasons were not clear. For the above reasons, the panel upheld Judge King’s finding of Governmental bad faith and held that on the basis of United States v. Cowan, 524 F.2d 504 (5th Cir. 1975), the district court had not abused its discretion in denying the motion for dismissal under Rule 48(a).

Fortunately, this panel does not have to examine the record to ferret out the Government’s motivations for its inconsistent behavior, for at oral argument before the en banc court the Government attorney conceded that a “responsible person” within the Department of Justice, indeed, was aware that the Petite Policy was being violated through its prosecution of defendants, but nevertheless, out of his fear that the state convictions would be reversed on appeal, instructed the trial attorney to proceed with the case; only after a Florida appellate court affirmed the state convictions and after defendants raised the Petite Policy on appeal did the Government move for dismissal.

The Government attorney argued, however, that this knowledge did not constitute bad faith on the part of the “responsible person” or on that of the Department of Justice. Rather, he contended that the position of the Department of Justice is not that the prosecution should never have been brought, but that once the state convictions had been affirmed the Government could properly have moved to dismiss the federal indictment against defendants.

Indeed, he states that had permission to prosecute been sought from an Assistant Attorney General by the “responsible person” in charge of the case, it might well have been given and, hence, there would have been no violation of the Petite Policy.

Had that event occurred, the Government attorney states, it would have then been absolutely proper, once the Florida appellate court affirmed the state conviction on appeal, for the Department of Justice to rescind, retroactively, its authorization of the prosecution and now, finding the Petite Policy to have been violated by a federal trial for an offense for which a state prosecution was made, to seek a dismissal based on this violation of the policy and the interest against duplicitous prosecutions that it seeks to promote.

In essence, the Government’s position is this: it can bring — nay, it can insist on — a prosecution that results in two trials and fourteen days of court time; it can bring this prosecution, despite the suggestion of the federal district court judge that it simply accept a proffered plea of guilty and allow the federal sentence to run concurrently with the state sentence for the same offense. Then, once this state conviction has been affirmed, it can discover with great alarm and apparent innocence that it has violated its own internal policy when it brought the prosecution.

Of course, as in this case, the Department may have known that it was violating its policy when it prosecuted defendant; indeed, as in the Government attorney’s hypothetical case, it may have even complied with the policy by obtaining the proper authorization to prosecute. Yet, once the state convictions have been affirmed, the Government may brazenly demand that the court simply dismiss the case as if the prosecution had never been brought.

Frankly, we find appalling the Government’s cavalier attitude toward its wasteful expenditure of judicial time and resources and toward the uneven application of its own policy. That the Government’s conduct here constitutes bad faith is clear to us. In this case, an unidentified, but responsible, official within the Department authorized a federal prosecution with full knowledge that such a prosecution was forbidden by the Petite Policy.

For the Government to attempt to dismiss by arguing that no compelling reason now exists for a separate federal conviction, when the considerations that allegedly imply a lack of “compelling reason” were known as fully to the Government throughout both federal trials as now, does, for this court, constitute bad faith. Of course, the attorney for the Government argued that the same considerations did not exist during the trial in that the state convictions had not at that time been upheld on appeal. Yet, we find this position unacceptable.

That is, the Petite Policy prohibits a federal prosecution after a state prosecution predicated on the same acts; in other words, Petite does not require that a state conviction must have resulted in order to invoke its strictures against a federal prosecution for the same acts. Thus, in merely prosecuting a defendant after a state prosecution, no matter whether a state conviction was obtained or upheld on appeal, the Government violates the terms of its policy from the outset. We cannot characterize this manipulative conduct as anything but bad faith.

The Government’s motion to dismiss having been made with unclean hands, Judge King’s decision to deny that motion complies with the guidelines articulated in United States v. Cowan, 524 F.2d 504 (5th Cir. 1975). In Cowan, Judge Murrah explored the legislative history of Rule 48 and observed that the phrase “by leave of court” was added purposefully to give the court some discretion over the propriety of a prosecutorial motion to dismiss an indictment. Citing Judge Weinfeld’s opinion in United States v. Greater Blouse, Skirt & Neckwear Con.

Ass’n, 228 F.Supp. 483 (S.D.N.Y.1964), Judge Murrah noted that even “indulging in the good faith of the prosecution . . . [his] recommendations [are] not conclusive upon the court, ‘otherwise there would be no purpose to Rule 48(a), which requires leave of Court [Greater Blouse, 228 F.Supp. 483, 486]’; that the rule contemplated public exposure of the reasons for the abandonment of an indictment ... in order to prevent ‘abuse’ of the uncontrolled power of dismissal previously enjoyed by the prosecutors; that to gain the court’s favorable discretion, the prosecution must convince the court that the reasons for the proposed dismissal are substantial.” 524 F.2d at 511.

Having determined that Congress intended to grant some discretion to the court over a Rule 48 motion to dismiss, Judge Murrah proceeded to outline the test to determine when that discretion could be exercised to deny the motion: [I]t seems altogether proper to say that the phrase ‘by leave of court’ in Rule 48(

a) was intended to modify and condition the absolute power of the Executive, consistently with the Framer’s concept of Separation of Powers, by erecting a check on the abuse of Executive prerogatives. . The Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated. The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest. 524 F.2d at 513 (emphasis added).

Judge Murrah also indicated at several points in his opinion that an important part of the “public interest” test is the requirement that the Government’s motion to dismiss a pending prosecution be made in good faith. 524 F.2d at 513, 514. Here, the Government’s attempt to manipulate the use of judicial time and resources through its capricious, inconsistent application of its own policy clearly constitutes bad faith and a violation of the public interest; our sanction of such conduct would invite future misconduct by the Government.

Accordingly, we hold that Judge King did not abuse the discretion accorded to him under Rule 48(

a) and we, therefore, affirm his denial of the motion. Finally, counsel for the defense, who joined with the Government in its appeal of Judge King’s order, concentrated his argument on the unfairness to the defendants of the denial of the Rule 48 motion. Essentially, he argues that because at the outset the Government could have followed its own internal policy and elected not to prosecute defendants, its belated decision to comply with its Petite Policy now, after a conviction has been returned, renders Judge King’s refusal to dismiss their indictment a great miscarriage of justice.

Defendants’ argument misconstrues the purpose of the “public interest test” and the considerations that underpin the delicate balance sought to be maintained in Rule 48(

a) between judicial and executive powers. First, in our articulation of the public interest test in Cowan, we observed that “the history of . Rule [48(a)] belies the notion that its only scope and purpose is the protection of the defendant. . . . [Rather, it is] manifestly clear that the Supreme Court intended to clothe the federal courts with a discretion broad enough to protect the public interest in the fair administration of criminal justice.” 524 F.2d at 512 (emphasis added).

Here, for the reasons discussed above, we believe that a consideration of the public interest involved in this case compels us to affirm Judge King’s order. In addition, we cannot understand how Judge King’s refusal to dismiss unfairly harms defendants. They were, we assume, properly tried and convicted; certainly, they will have an opportunity on an appeal of the merits of the case to argue the existence of reversible error. The fact that the Justice Department is now reconsidering its original decision to prosecute does not vest defendants with any right to have an otherwise valid conviction dismissed.

Indeed, we do not understand defendants to contend that they would have any right to question the propriety of their convictions if the Government had not moved for dismissal but instead had decided to remain consistent to its original decision to overlook its policy and prosecute defendants. Instead, defendants implicitly concede that they were at the mercy of the Government as to whether a federal prosecution should be brought. In essence, then, the conflict in this case is between the executive and judicial branches as to each of their roles in a determination to dismiss under Rule 48(a).

While a determination of such a motion obviously affects defendants, it is not a defendant’s interest in avoiding a validly obtained conviction that we weigh in our examination of the propriety of Judge King’s order. Rather, it is the delicate balance established in Rule 48(

a) between executive and judicial powers over dismissal with which we are concerned here. That is, as we stated in Cowan, “the Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated.” 524 F.2d at 513. That presumption is rebutted, however, when the prosecution, as here, acts in bad faith and contravenes the public interest through its motion to dismiss. At that point, under the discretion yielded to it by 48(

a) to “check [an] abuse of Executive prerogative,” 524 F.2d at 513, the court can and must deny the motion to dismiss. We affirm Judge King’s order denying dismissal. . Defendants’ first trial in federal court resulted in a mistrial; the second federal trial culminated in the conviction of both defendants. . Pasquale Sole, originally a defendant in this case, died during its appeal. The original panel, therefore, granted the joint motion of counsel to remand the case to the district court to allow counsel to move for the dismissal of the indictment against Sole: .

This policy, established by Attorney General William Rogers in 1959, received its name from the case in which it was first recognized judicially: United States v. Petite, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960). Promulgated through a Department of Justice Press Release on April 6, 1959, the policy provides, in the main, that a federal prosecution shall not follow a state prosecution predicated on the same act or acts unless a compelling federal interest is involved, in which case prior authorization should be obtained from the appropriate Assistant Attorney General. N.Y.

Times, April 6, 1959, p. 19, Col. 2. . Rule 48(

a) states: The Attorney General or the United States Attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant. . No issue of Governmental good faith, discussed infra, at pp. 206-208 was raised in Watts. . The intermediate appellate court affirmed defendants’ state conviction on April 30, 1974; see Scaldeferri v. State, 294 So.2d 407 (Fla. App.1974). The Government’s motion to dismiss was filed on September 30, 1974.

The Government attorney at oral argument before this en banc panel stated that while petitions for certiorari on the state convictions had not yet been denied by either the Florida Supreme Court of the United States Supreme Court when the Government made its motion, the Government felt that the state conviction was secure enough to justify its decision to move for dismissal. Subsequently, the Supreme Court of Florida denied certiorari on October 3, 1974, Pompeo v. State, 303 So.2d. 21 (Fla.1974) and the U.S. Supreme Court denied certiorari on November 11, 1974, Washington v.

Florida, 419 U.S. 993, 95 S.Ct. 304, 42 L.Ed.2d 266 (1974). . The Petite Policy provides that a federal prosecution, otherwise impermissible under the terms of the policy, may be authorized by the appropriate assistant Attorney General when the case involves a compelling federal interest. .

In addition to the fact that the Government acted purposefully and manipulatively throughout this case, its argument raises another problem for this court in that it contends that the Petite Policy was properly waived at the outset because Petite authorizes a federal prosecution when “compelling federal interests” are involved and because the state convictions had not yet been affirmed at the time of the trial, such a compelling interest existed. According to this argument, when the state court later affirmed these convictions, the “compelling federal interest” justifying a federal prosecution vanished.

Beside the implicit bad faith problems that this argument poses, our acceptance of it would require this court to rubber-stamp the Government’s vacillating

interpretation of the term “compelling federal interest.”