In United States v. B.G.G., No. 21-10165 (Nov. 22, 2022) (Wilson, Luck, Lagoa), the Court, on appeal by the government, vacated the dismissal of an information with prejudice under Rule 48(a).

During the pandemic, the Southern District of Florida imposed a temporary moratorium on grand juries.  Concerned that they would not be able to charge the defendant within the statute of limitations, prosecutors filed an information before the statute of limitations expired.  Then, after the limitations period expired, the government moved to dismiss the information under Rule 48(a) without prejudice, which it believed would have triggered a six-month extension within which they intended to bring an indictment.  The district court, however, dismissed the information with prejudice, precluding a subsequent indictment.

On appeal, the Eleventh Circuit held that the district court abused its discretion by committing five separate legal errors.  First, the district court failed to apply the presumption of good faith to the government’s Rule 48(a) motion to dismiss.  That presumption applies even where, as here, the government articulates a reason for the dismissal.  Second, the district court failed to require the defendant to rebut the presumption by showing that the government sought the dismissal in bad faith.  Third, the district erroneously focused on the government’s reasons for filing the information (to preserve the availability of a future prosecution) rather than its reasons for seeking the dismissal (the defendant’s refusal to waive an indictment and consent to an information).  Fourth, the district court failed to apply the correct test in deciding whether to grant leave to dismiss even where the government overcomes the presumption of good faith: it failed to find that the dismissal went to the merits or demonstrated a purpose to harass.  Finally, the district court erred in dismissing with prejudice; where the government, the moving party, seeks dismissal under Rule 48(a) without prejudice before trial, then any such dismissal must be without prejudice and cannot bar a second prosecution.  The Court expressed no view on whether any subsequent prosecution would be barred by the statute of limitations.

Judge Wilson dissented.  He opined that the government’s dismissal was in bad faith and for the purpose of harassment, and it therefore should have been dismissed with prejudice.  In his view, the government sought to achieve a tactical advantage contrary to the defendant’s rights.