United States v. B.G.G. ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10165
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
B. G. G.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:20-cr-80063-DMM-1
____________________
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2 Opinion of the Court 21-10165
Before WILSON, LUCK, and LAGOA, Circuit Judges.
LUCK, Circuit Judge:
Federal Rule of Criminal Procedure 48(a) allows the govern-
ment to dismiss an information (or indictment) before trial with
“leave of court.” But, because “[f]ew subjects are less adapted to
judicial review than the exercise by the [e]xecutive of his discretion
in deciding . . . whether to dismiss a proceeding once brought,”
Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967)
(Burger, J.), the district court’s discretion to grant or deny “leave”
under rule 48(a) is limited. The district court must presume that
the government moved to dismiss the information in good faith.
The district court must find, to overcome the good-faith presump-
tion, that the government acted in bad faith in moving to dismiss
the information. The district court must still dismiss the infor-
mation, if the good-faith presumption has been overcome, where
the government’s reasons for dismissal do not go to the merits and
do not demonstrate a purpose to harass. And the district court’s
dismissal (before trial) must be without prejudice and cannot bar a
future prosecution.
The question in this case is whether the district court abused
its limited discretion when it granted “leave” to dismiss the infor-
mation against B.G.G. with prejudice. We conclude that it did.
The district court did not presume the government moved to dis-
miss the information in good faith. It did not find bad faith by the
government. It did not focus its analysis on whether the govern-
ment’s reasons for dismissal went to the merits or demonstrated a
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21-10165 Opinion of the Court 3
purpose to harass. And it did not dismiss the information without
prejudice. Because of these errors of law, we vacate the dismissal
order and remand for further proceedings.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The statute of limitations and rule 48(a)
Two statutes and two rules of criminal procedure are im-
portant to understanding the government’s appeal. So we discuss
them first before getting on to the facts.
The statute of limitations for prosecuting federal crimes pro-
vides that “no person shall be prosecuted, tried, or punished for any
offense, not capital, unless the indictment is found or the infor-
mation is instituted within five years next after such offense shall
have been committed.” 18 U.S.C. § 3282(a). But there are excep-
tions to the five-year limitations period, and this is one of them:
Whenever an indictment or information charging a
felony is dismissed for any reason after the period pre-
scribed by the applicable statute of limitations has ex-
pired, a new indictment may be returned in the ap-
propriate jurisdiction within six calendar months of
the date of the dismissal of the indictment or infor-
mation, or, in the event of an appeal, within 60 days
of the date the dismissal of the indictment or infor-
mation becomes final, or, if no regular grand jury is
in session in the appropriate jurisdiction when the in-
dictment or information is dismissed, within six cal-
endar months of the date when the next regular grand
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4 Opinion of the Court 21-10165
jury is convened, which new indictment shall not be
barred by any statute of limitations.
Id. § 3288.
This case involves an information. For an information, Fed-
eral Rule of Criminal Procedure 7(b) provides that an “offense pun-
ishable by imprisonment for more than one year may be prose-
cuted by information if the defendant—in open court and after be-
ing advised of the nature of the charge and of the defendant’s
rights—waives prosecution by indictment.” Fed. R. Crim. P. 7(b).
If the government moves to dismiss the information before trial, it
must comply with rule 48(a), which allows the government, “with
leave of court,” to “dismiss an indictment, information, or com-
plaint.” Id. R. 48(a).
The information
In early 2020, the operation of the federal courts, like just
about everything else in the United States and around the world,
was disrupted by the COVID-19 pandemic. On March 26, 2020,
the United States District Court for the Southern District of Florida
suspended all grand jury sessions in response to the pandemic. See
S.D. Fla. Admin. Order 2020-22. And, on August 11, 2020, the
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21-10165 Opinion of the Court 5
suspension was extended to January 4, 2021. 1 See S.D. Fla. Admin.
Order 2020-53.
On August 28, 2020, while the administrative order suspend-
ing grand jury sessions was still in effect, the government filed a
sealed two-count information against B.G.G. The information
charged B.G.G. with conspiring to accept kickbacks for prescribing
opioids from August 2012 through August 31, 2015, in violation of
18 U.S.C. section 371, and with soliciting and receiving kickbacks
for prescribing opioids on August 31, 2015, in violation of 42 U.S.C.
section 1320A-7B. Both counts had the same five-year limitations
period, which was set to run out on August 31, 2020. The govern-
ment filed the information three days before the statute of limita-
tions expired.
The government gave a copy of the sealed information to
B.G.G.’s counsel on August 31, 2020. But B.G.G. refused to waive
prosecution by indictment under rule 7(b).
The government’s motion to dismiss the information
In response to B.G.G.’s refusal to waive prosecution by in-
dictment, the government filed a proposed “order of dismissal.”
The district court construed the proposed order as a rule 48(a) mo-
tion to dismiss the information. The government explained that
1
In October 2020, the district court amended the August 2020 order and di-
rected that, as of November 16, 2020, it would allow two grand jury proceed-
ings per week. See S.D. Fla. Admin. Order 2020-76.
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6 Opinion of the Court 21-10165
because of the grand jury suspension, and because of concerns
about the statute of limitations expiring, it “institute[d]” the infor-
mation “within the meaning of” section 3282(a). The govern-
ment’s intent was to dismiss the information and later seek to indict
B.G.G. once the grand jury reconvened, as provided by the tolling
provision of section 3288. The government argued that it was act-
ing in good faith “to protect against the running of the statute of
limitations.” B.G.G. wouldn’t be prejudiced by the dismissal, the
government maintained, because he could raise a statute of limita-
tions defense if he was ultimately indicted.
B.G.G. didn’t oppose the government’s motion to dismiss;
rather, he agreed “that the information should be dismissed” be-
cause he didn’t consent to it. “The only dispute in this case,”
B.G.G. explained, was whether the information “should be [dis-
missed] with or without prejudice.”
B.G.G. contended that the district court should dismiss the
information with prejudice. He maintained that the government
had been investigating him since 2015 and could’ve indicted him
“well before” the March 2020 grand jury suspension. He also ar-
gued that the government could’ve sought his indictment in an-
other district that hadn’t suspended the grand jury. And B.G.G.
asserted that an information filed without the defendant’s waiver
of indictment was “meaningless” and couldn’t “institute” the pros-
ecution under section 3282(a).
The district court declined to adopt the government’s pro-
posed dismissal order. The district court wrote that, although it
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21-10165 Opinion of the Court 7
intended to dismiss the information, the “fundamental issue” was
whether the government’s “tactical” use of rule 48(a) was appro-
priate. The district court explained that the point of rule 48(a)’s
“leave of court” requirement was to protect a defendant against
prosecutorial harassment and to bar dismissals “clearly contrary to
the public interest.” B.G.G.’s objection to a dismissal without prej-
udice went “to the heart” of rule 48(a)’s leave of court requirement,
the district court wrote, “because court approval is necessary under
[r]ule 48(a) for the protection of a defendant under circumstances
where, as here, the [g]overnment is seeking to dismiss for the pur-
pose of commencing another prosecution at a different time or
place deemed more favorable to the prosecution.”
The district court acknowledged that the government was
entitled to “substantial deference” in seeking to dismiss the infor-
mation. And the district court did not “question the subjective
good faith of the prosecutor.” But the district court wrote that it
would reject a dismissal without prejudice if the government’s use
of rule 48(a) harassed B.G.G. or was contrary to the public interest.
The district court ordered the parties to brief the question of
whether, under rule 48(a), a dismissal without prejudice was ap-
propriate under the circumstances.
The government argued in its supplemental brief that a dis-
missal without prejudice was appropriate. The government was
entitled to a presumption of good faith when it sought to dismiss
an information, it argued, and B.G.G. had to show bad faith to
overcome that presumption. The government maintained that it
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8 Opinion of the Court 21-10165
had not acted in bad faith, as reflected by the district court’s finding
that the government had not acted in bad faith. The government
also had not harassed B.G.G., it said; rather, it had filed the infor-
mation under seal to protect his reputation and had agreed that
B.G.G. did not need to be formally arrested or even appear in court.
The government argued that its intent to dismiss the information
was not a “trick” or a “tactic,” but a way to “institute” the charge
under section 3282(a) and ensure that it could later pursue the case
by indicting B.G.G., as provided by section 3288, once the grand
jury reconvened.
B.G.G. responded that the government’s motion to dismiss
the information was harassment because it was an attempt to get
around the statute of limitations. B.G.G. argued that the govern-
ment’s admission that it had filed the information and sought its
dismissal “to guard against the running of the statute of limitations”
was a concession that the dismissal was tactical. Thus, B.G.G.
maintained, the government had the burden to explain why a dis-
missal without prejudice was appropriate. B.G.G. argued that the
government couldn’t meet its burden for three reasons: (1) the
government could’ve indicted him sooner; (2) the government
could’ve indicted him in another district; and (3) he had been prej-
udiced by the delay because key witnesses had died or couldn’t be
located. Because the government’s motion to dismiss amounted
to harassment and was contrary to the public interest, B.G.G.
urged the district court to dismiss the information with prejudice.
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21-10165 Opinion of the Court 9
The district court’s dismissal order
The district court dismissed the information with prejudice.
It acknowledged that the government was generally entitled to a
presumption of good faith in seeking to dismiss an information.
This presumption could be overcome if the defendant showed that
the government sought dismissal in bad faith, or if he showed that
the government’s failure to articulate its reasons for the dismissal
prejudiced his ability to attack the government’s motives. But the
district court determined that the presumption of good faith wasn’t
“relevant to the case at hand” because the government had identi-
fied its reasons for the dismissal. So the district court didn’t apply
the presumption of good faith to the government’s rule 48(a) mo-
tion.
The government, the district court wrote, couldn’t use rule
48(a) “to gain a position of advantage or to escape from a position
of less advantage in which the [g]overnment found itself as the re-
sult of its own election.” The government’s motives in “strategi-
cally” filing the information against B.G.G. and then moving to dis-
miss it were “no mystery,” the district court explained; the govern-
ment “ha[d] been transparent” about its intent to protect against
the statute of limitations and to indict B.G.G. when the grand jury
reconvened. But the district court rejected the government’s “im-
plicit characterization” of its motives as a “non-issue[]” because its
desired result—to institute the information under section 3282(a)
by filing it and to later use section 3288’s tolling provision to indict
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10 Opinion of the Court 21-10165
B.G.G.—“at least arguably” amounted to prosecutorial harass-
ment.
The district court explained that a dismissal without preju-
dice would be an end-run around the statute of limitations, would
violate B.G.G.’s Fifth Amendment right to prosecution by indict-
ment, and would be against the public interest. Although the dis-
trict court didn’t find that the government had sought the dismissal
in bad faith, it found that the government was acting in a manner
contrary to B.G.G.’s rights to achieve a “tactical advantage.” This
finding rested on the district court’s conclusion that the five-year
limitations period had expired because the sealed information was
a “nullity.”2
The district court concluded that the five-year statute of lim-
itations had expired because the information hadn’t “instituted”
the prosecution within the meaning of section 3282(a). The district
court explained that the information wasn’t instituted for purposes
of section 3282(a) where it was unaccompanied by a waiver of in-
dictment under rule 7(b). The district court gave two reasons for
its conclusion.
2
The district court acknowledged that examining the statute of limitations in
the context of rule 48(a) was “unusual,” because “[n]ormally” a “statute of lim-
itations defense would be raised by a defendant after indictment.” But, the
district court reasoned, examining sections 3282(a) and 3288 was necessary be-
cause a dismissal without prejudice “would enable and invite” an “unlawful”
action—the circumvention of the statute of limitations.
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21-10165 Opinion of the Court 11
First, the district court reasoned that it would be incon-
sistent with the Fifth Amendment and rule 7(b) to “recognize an
invalid charging document as a mere mechanism for extending a
statute of limitations period, though the same legal instrument
could not serve to initiate criminal proceedings on the charges con-
tained therein or confer subject matter jurisdiction on the court in
which those proceedings are to take place.” Second, the district
court analyzed the legislative history and “historical context” of
sections 3282(a) and 3288 and concluded that an information that
couldn’t be used to prosecute the defendant also couldn’t be used
to toll the limitations period.
The government appeals the dismissal with prejudice.
STANDARD OF REVIEW
We review an order dismissing an information under rule
48(a) for an abuse of discretion. United States v. Dyal, 868 F.2d 424,
426 (11th Cir. 1989). And we review the district court’s factual find-
ings underlying its rule 48(a) decision for clear error. United States
v. Matta, 937 F.2d 567, 568 (11th Cir. 1991).
The abuse of discretion standard is “extremely limited and
highly deferential.” United Kingdom v. United States, 238 F.3d
1312, 1319 (11th Cir. 2001). The standard gives the district court a
“range of choice,” provided that the choice does not constitute a
“clear error of judgment.” United States v. Irey, 612 F.3d 1160, 1189
(11th Cir. 2010) (en banc) (quotation omitted). Where the district
court has properly exercised its discretion, we cannot “substitute
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12 Opinion of the Court 21-10165
[our] discretion for that of the district court.” United States v. Diaz,
811 F.2d 1412, 1415 (11th Cir. 1987) (quotation omitted). But the
abuse of discretion standard is not toothless. “A district court by
definition abuses its discretion when it makes an error of law.”
Koon v. United States, 518 U.S. 81, 100 (1996). In other words, a
district court cannot properly exercise its discretion where it is
“guided by erroneous legal conclusions.” Id.DISCUSSION
The government argues that the district court abused its dis-
cretion in dismissing the information with prejudice under rule
48(a) without finding that the government’s motion to dismiss was
filed in bad faith. We agree. 3
We begin by explaining the district court’s limited role when
the government moves to dismiss an information before trial under
rule 48(a), and the requirements for exercising the court’s limited
discretion. We then apply the “leave of court” requirements to
B.G.G.’s case and conclude that the district court erred as a matter
of law, and therefore abused its discretion, in dismissing the infor-
mation with prejudice.
3
Because we conclude that the district court abused its discretion in dismissing
the information with prejudice, we do not reach the issue of whether filing an
information without a waiver of indictment institutes the prosecution, and
tolls the statute of limitations, under sections 3282(a) and 3288.
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Rule 48(a)’s “leave of court” requirements
“The Supreme Court has repeatedly reaffirmed the princi-
ple—which dates back centuries—that ‘the [e]xecutive [b]ranch has
exclusive authority and absolute discretion to decide whether to
prosecute a case.’” In re Wild, 994 F.3d 1244, 1260 (11th Cir. 2021)
(en banc) (quoting United States v. Nixon, 418 U.S. 683, 693 (1974)).
The “core” or “essence” of prosecutorial discretion is “the decision
whether or not to charge an individual with a criminal offense in
the first place.” Id.This core discretion also includes the decision whether to
dismiss a prosecution. As the former Fifth Circuit explained, the
executive branch “remains the absolute judge of whether a prose-
cution should be initiated and the first and presumptively the best
judge of whether a pending prosecution should be terminated.”
United States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975).
The judiciary has a role to play when the government seeks
to dismiss a prosecution—but it’s a limited one. See United States
v. Bernard, 42 F.4th 905, 908 (8th Cir. 2022) (“[A]lthough the dis-
trict court has some discretion in this area, it ‘is sharply limited by
the separation of powers balance inherent in [r]ule 48(a).’” (quota-
tion omitted)). The “Supreme Court has declined to construe
[r]ule 48(a)’s ‘leave of court’ requirement to confer any substantial
role for courts in the determination whether to dismiss charges.”
United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir.
2016). The “principal object of the ‘leave of court’ requirement,”
the Supreme Court has said, is to “protect a defendant against
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14 Opinion of the Court 21-10165
prosecutorial harassment, e.g., charging, dismissing, and recharg-
ing, when the [g]overnment moves to dismiss an indictment over
the defendant’s objection.” Rinaldi v. United States, 434 U.S. 22, 29
n.15 (1977); see also United States v. Cox, 342 F.2d 167, 171 (5th
Cir. 1965) (“The purpose of [rule 48(a)] is to prevent harassment of
a defendant by charging, dismissing and re-charging without plac-
ing a defendant in jeopardy.”).
Over the years, we have set out the requirements under rule
48(a) to guide the district courts in exercising their limited discre-
tion to grant or deny “leave” to dismiss an information. First, “the
government is entitled to a presumption of good-faith.” Dyal, 868
F.2d at 428; see also Matta, 937 F.2d at 568 (“In rule 48(a) dismissals
and subsequent indictments, the government is entitled to a pre-
sumption of good faith.”); Cowan, 524 F.2d at 514 (concluding that
the district court abused its discretion in denying the government’s
rule 48(a) motion to dismiss where “[n]othing in this record
overc[a]me[] the presumption that” the government had sought
the dismissal “in good faith”). The good-faith presumption recog-
nizes that, although rule 48(a) is meant to be “a check on the abuse
of [e]xecutive prerogatives,” it is not “intended to confer on the
[j]udiciary the power and authority to usurp or interfere with the
good faith exercise of the [e]xecutive power to take care that the
laws are faithfully executed.” Cowan, 524 F.2d at 513. It also rec-
ognizes that the government is “the first and presumptively the
best judge of whether a pending prosecution should be termi-
nated.” Id.USCA11 Case: 21-10165 Date Filed: 11/22/2022 Page: 15 of 47
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Second, “leave” may be denied where the good-faith pre-
sumption has been overcome by a finding that the government
sought the dismissal in bad faith. 4 Dyal, 868 F.2d at 429. A defend-
ant can rebut the presumption of good faith “in response to the
government’s motion to dismiss the original prosecution or via his
own motion to dismiss a subsequent indictment” by demonstrating
that the government sought dismissal under rule 48(a) “in bad
faith.” 5 Id. at 428. A defendant can establish bad faith if “the record
affirmatively suggests” that the government sought the dismissal
“in order to achieve a tactical advantage in derogation of the de-
fendant’s rights or for the purpose of harassment.” Id. at 429.
Third, the focus of the bad faith analysis must be on the gov-
ernment’s reasons for dismissing the information. See id. at 426–
28 (discussing the government’s “presumption of good faith in
seeking dismissal”); Matta, 937 F.2d at 568 (explaining that bad faith
4
If the presumption of good faith has not been overcome, the district court
must grant “leave” to dismiss the information.
5
Where the government fails to provide its reasons for the initial dismissal and
the defendant moves to dismiss a “subsequent indictment,” the defendant can
also rebut the presumption of good faith by demonstrating that he “‘has been
prejudiced in his ability to attack the prosecutor’s motives due to the trial
court’s failure to require submission of adequate reasons’ as a condition of dis-
missal of the prior prosecution.” Dyal, 868 F.2d at 428 (quoting United States
v. Welborn, 849 F.2d 980, 984 (5th Cir. 1988)). Here, because, as the district
court found, the government has been upfront about its reasons for seeking
dismissal, this alternative way of overcoming the presumption of good faith is
not implicated by this appeal.
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16 Opinion of the Court 21-10165
turns on the “government’s reason for seeking dismissal of the . . .
indictment”). The Supreme Court’s decision in Rinaldi shows this
requirement in action.
The defendant in Rinaldi robbed a hotel and was charged
with robbery both in federal and state court. 434 U.S. at 23. The
defendant was convicted of the state charges and sentenced to six
years in prison. Id. His “subsequent federal trial ended in a mis-
trial.” Id. at 23–24. After the mistrial, the district court questioned
why a retrial was necessary given the state conviction and sen-
tence. Id. at 24. Counsel for the government responded that “he
had been instructed by his superiors at the Department of Justice
to pursue the federal prosecution vigorously because of their con-
cern that the state convictions might be reversed on appeal.” Id.The defendant was convicted in the federal case after a second trial.
Id.On appeal, the defendant argued that his conviction violated
the Department of Justice’s Petite policy,6 “a longstanding federal
policy against multiple prosecutions for the same act.” Id. The
government conceded that the Petite policy had been violated and,
following a remand, moved to dismiss the indictment under rule
6
See Petite v. United States, 361 U.S. 529, 530 (1960). Under the Department
of Justice’s Petite policy, a “United States Attorney contemplating a federal
prosecution in these circumstances”—a federal prosecution following a state
conviction for the same acts—“is required to obtain authorization from an ap-
propriate Assistant Attorney General.” Rinaldi, 434 U.S. at 24 n.5.
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21-10165 Opinion of the Court 17
48(a). Id. at 24–25. The district court denied the motion, finding
that the government had acted in bad faith in representing, after
the federal mistrial, that the Department of Justice had authorized
the federal prosecution. Id. at 25. Both the government and the
defendant appealed, and the former Fifth Circuit, sitting en banc,
held that the government’s “unclean hands”—its representations
after the mistrial—justified the district court’s denial of the rule
48(a) motion to dismiss. Id. at 26.
But the Supreme Court explained that “[t]he salient issue”
was “not whether the decision to maintain the federal prosecution
was made in bad faith but rather whether the [g]overnment’s later
efforts to terminate the prosecution were similarly tainted with im-
propriety.” Id. at 30. The Supreme Court held that the district
court erred in denying the government’s rule 48(a) motion to dis-
miss because there was no evidence establishing “bad faith on the
part of the [g]overnment at the time it sought leave to dismiss the
indictment.” Id. That must be the focus of the district court’s bad-
faith finding—and not on whether the government’s decision to
initiate or maintain the prosecution was made in bad faith.
Fourth, if the defendant has overcome the presumption of
good faith, the district court must still dismiss the information “if
the reason for dismissal does not go to the merits or demonstrate a
purpose to harass.” Matta, 937 F.2d at 568. That is the ultimate
test the district court must apply in exercising its limited discretion
to grant or deny “leave” to dismiss an information under rule 48(a).
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18 Opinion of the Court 21-10165
Fifth and finally, if the district court grants “leave” to dismiss
the information, the “rule 48(a) dismissal[] [is] without prejudice”
because it does not bar a future prosecution on the same charges.
Id. at 568–69. As the former Fifth Circuit explained in United States
v. Davis, 487 F.2d 112 (5th Cir. 1973), “[i]t is true that [r]ule 48(a)
states that a United States Attorney may, by leave of court, file a
dismissal of an indictment ‘and the prosecution shall thereupon ter-
minate.’” Id. at 118 (quoting United States v. Chase, 372 F.2d 453,
463–64 (4th Cir. 1967)). “[B]ut,” the Davis court explained, “the
authorities are replete that such a dismissal is without prejudice.”
Id. (quoting Chase, 372 F.2d at 463). “It is precisely because a dis-
missal under [r]ule 48(a) does not bar a subsequent prosecution
that the rule requires the consent of the court.” Id. (emphasis
added).
The former Fifth Circuit reached the same conclusion in
United States v. Pitts, 569 F.2d 343 (5th Cir. 1978). There, the de-
fendant was charged with interstate transportation of a stolen ve-
hicle but, with the district court’s leave, the government dismissed
the original indictment under rule 48(a) right before the trial started
because its key witness “was not present.” Id. at 346. Later, the
government indicted the defendant again for the same charge, and
he was convicted at trial. Id. On appeal, the defendant argued that
indicting him after the government’s rule 48(a) dismissal violated
his Fifth Amendment double jeopardy rights. Id. The former Fifth
Circuit concluded that double jeopardy didn’t bar the defendant’s
reprosecution after the rule 48(a) dismissal. Id. at 347.
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21-10165 Opinion of the Court 19
The district court’s dismissal of the information with prejudice
was an abuse of discretion
For five reasons, the district court did not follow the “leave
of court” requirements for exercising its limited discretion under
rule 48(a). Because the district court was “guided by erroneous le-
gal conclusions,” we must reverse. See Koon, 518 U.S. at 100.
1.
First, the district court erred in refusing to apply the pre-
sumption of good faith to the government’s rule 48(a) motion to
dismiss. The district court acknowledged that the government or-
dinarily was entitled to the presumption of good faith in seeking to
dismiss under rule 48(a). But the district court didn’t apply the
good-faith presumption because, it explained, the presumption ap-
plies “in cases where the government has failed to articulate any
reason or factual basis for dismissal in the [r]ule 48(a) motion.” The
district court concluded that the good-faith presumption wasn’t rel-
evant in B.G.G.’s case because the government had “identified the
reason it [sought] a [r]ule 48(a) dismissal.”
But the presumption of good faith applies when the govern-
ment seeks dismissal under rule 48(a)—regardless of whether it has
explained the dismissal. See Dyal, 868 F.2d at 428 (“We conclude
that, in the dismissal of an indictment, information or complaint
under [r]ule 48(a), the government is entitled to a presumption of
good-faith.”); Matta, 937 F.2d at 568 (“In rule 48(a) dismissals . . . ,
the government is entitled to a presumption of good faith.”). Take
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20 Opinion of the Court 21-10165
Cowan as an example. There, the former Fifth Circuit applied the
presumption of good faith even where, as here, the government
gave its reasons for seeking dismissal. See Cowan, 524 F.2d at 514.
In Cowan, the defendant was indicted in Texas for fraud and
for making a false statement to the grand jury. Id. at 506. Then,
the defendant and the “Watergate Special Prosecution Force” ne-
gotiated an agreement where the defendant agreed to plead guilty
in the District of Columbia to bribery in a separate case. Id. The
plea agreement required the defendant to disclose “all relevant in-
formation and documents within [his] knowledge and possession
concerning matters then under investigation by the Watergate Spe-
cial Prosecution Force,” and, if necessary, to testify in any cases
arising out of the Watergate investigation. Id. In exchange, the
government agreed to dismiss the Texas indictment. Id. The gov-
ernment’s rule 48(a) motion to dismiss the Texas indictment ex-
plained that the defendant’s “testimony was necessary to the inves-
tigation and prosecution of the indictment in the District of Colum-
bia” and, without the plea agreement, the defendant’s testimony
“would be lost.” Id.The former Fifth Circuit concluded that the district court
abused its discretion in denying the government’s rule 48(a) mo-
tion to dismiss the Texas indictment. Id. at 514–15. The Cowan
court said that the record did not “overcome[] the presumption
that” the government sought the dismissal “in good faith for sub-
stantial reasons sufficiently articulated in the motion to dismiss.”
Id. at 514.
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21-10165 Opinion of the Court 21
Cowan, in other words, applied the presumption of good
faith even though the government had given “substantial reasons”
for the dismissal. See id. That is what the district court had to do
here: apply the presumption of good faith to the government’s rule
48(a) motion to dismiss the information, as required by Cowan,
Dyal, and Matta.
The dissenting opinion says that our reading of the district
court’s order—that it didn’t apply the good-faith presumption—
isn’t a “fair” one. Dissenting Op. at 5. But we think it’s fair given
that the district court didn’t mention the good-faith presumption
after it concluded the presumption wasn’t relevant to this case.
Not once. Surely the district court would have referenced the
good-faith presumption again after saying it wasn’t relevant to the
case if it thought the presumption was relevant. But it didn’t.
And we think our reading is fair given that the district court
never found that the presumption had been overcome. Surely the
district court would have found the presumption had been over-
come, as it was required to do under rule 48(a), if it thought the
presumption was relevant. But it didn’t.
2.
Second, the district court didn’t require B.G.G. to overcome
the presumption of good faith by showing that the government
sought the dismissal in bad faith. Requiring the defendant to over-
come the presumption of good faith, the district court concluded,
was not “relevant to the case at hand.” But a finding of bad faith
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22 Opinion of the Court 21-10165
was required to overcome the presumption of good faith. See
Matta, 937 F.2d at 568 (“To overcome the presumption of good
faith, the defendant must show that the initial dismissal was in bad
faith . . . .”); Dyal, 868 F.2d at 428–30 (reversing dismissal of indict-
ment because the defendant “failed to rebut th[e] presumption of
good faith” and he failed to “adequately demonstrate[]” bad faith).
Here, the district court never made the critical bad-faith finding be-
cause it believed that overcoming the good-faith presumption was
irrelevant.
The dissenting opinion concedes that the district court “did
not explicitly find that the good-faith presumption was rebutted.”
Dissenting Op. at 6. That should be the end of it, but no matter,
the dissenting opinion says, because the district court “made” the
bad-faith finding “implicitly.” Id. Sometimes a finding can be im-
plied from a district court’s order. But a finding cannot be implied
when it is contrary to the district court’s explicit findings, as it is
here. The district court explicitly found that it “d[id] not question
the subjective good faith of the prosecutor.” How can an implicit
finding of bad faith be consistent with an explicit finding that there
were no questions about the government’s good faith, as the dis-
senting opinion asserts? It isn’t. They aren’t consistent. They are
inconsistent. Which is why we can’t imply bad faith here.
The dissenting opinion offers three reasons for why it ig-
nores the district court’s explicit good-faith finding. First, it says,
the good-faith finding is in a non-final and non-appealable order.
Id. at 7. But we know of no rule or case that would allow us to
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21-10165 Opinion of the Court 23
ignore a district court finding because it’s in a non-final, interlocu-
tory order. And, even if there was such a rule or case, the explicit
good-faith finding was not non-final and non-appealable. “When a
district court enters a final judgment all prior non-final orders and
rulings which produced the judgment are merged into the judg-
ment and subject to review on appeal.” Akin v. PAFEC Ltd., 991
F.2d 1550, 1563 (11th Cir. 1993) (quotation omitted; emphasis
added). That’s what happened here. The good-faith finding was
final and appealable because it merged—like all of the district
court’s prior orders—into the final dismissal order.
Second, the dissenting opinion says that the explicit good-
faith finding was in a “case management order.” Dissenting Op. at
7. Again, we know of no rule or case that would allow us to ignore
a district court finding because it’s in a case management order.
But, even if there was such a rule or case, the explicit good-faith
finding was not in a case management order. The district court’s
order went on for six pages. It rehashed the case’s procedural his-
tory, made fact findings, and discussed the statute of limitations is-
sue and the court’s authority under rule 48(a) to grant leave to dis-
miss the information. The order ended by denying B.G.G.’s mo-
tion for relief, reserving ruling on the government’s order of dis-
missal, and asking for supplemental briefing from the parties.
Third, the dissenting opinion says that the district court lim-
ited its explicit good-faith finding to “at [the] time” of the district
court’s order. Id. at 7. But that’s not what the district court found.
The district court found that it “d[id] not question the subjective
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24 Opinion of the Court 21-10165
good faith of the prosecutor.” The district court did not add, as the
dissenting opinion does, “for right now” or “until we get more in-
formation.” The district court didn’t question the government’s
good faith—period. And the final order of dismissal never re-
tracted, revised, or receded from this explicit good-faith finding.
We cannot ignore the explicit good-faith finding that the district
court actually made for an inconsistent implicit finding that the dis-
trict court never made.
The dissenting opinion then shifts gears and finds on its own
“that the government’s conduct amounted to harassment,” id. at 7,
even though the district court found no more than that the govern-
ment’s motivation for filing the information “arguably” fell within
the definition of harassment. While we can affirm for any reason
supported by the record, as the dissenting opinion says we should,
“[i]t is not an appellate court’s role to find facts.” United States v.
Barnette, 10 F.3d 1553, 1558 (11th Cir. 1994). “That is a function of
the district courts.” Id. “If [the dissenting opinion] believe[s] that
the [d]istrict [c]ourt . . . failed to make findings of fact essential to a
proper resolution of the legal question,” the remedy is to “remand[]
to the [d]istrict [c]ourt to make those findings.” See Icicle Seafoods,
Inc. v. Worthington, 475 U.S. 709, 714 (1986). “[I]t should not,” as
the dissenting opinion does, “simply have made factual findings on
its own.” See id.
3.
Third, the district court erred in focusing its rule 48(a) anal-
ysis on the government’s reasons for filing the information and not
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21-10165 Opinion of the Court 25
on its reasons for seeking the dismissal. The district court, for ex-
ample, emphasized that “the [g]overnment strategically timed its
filing of the [i]nformation” to protect against the running of the
statute of limitations. The “[g]overnment’s sole motivation behind
filing the [i]nformation,” the district court stressed, “was to ‘pre-
serve the ability to proceed with criminal charges against the
[d]efendant’ in the future.” And the district court, by its own ad-
mission, “devote[d] considerable attention . . . to the substantive
legal question of whether the [g]overnment ‘instituted’ the uncon-
sented [i]nformation by filing it.”
But devoting considerable attention to the reason why the
government filed the information missed the mark. The rule 48(a)
“leave” analysis turns on the “government’s reason for seeking dis-
missal of the” information. Matta, 937 F.2d at 568; see also Rinaldi,
434 U.S. at 30 (explaining that “[t]he salient issue” was “not
whether the decision to maintain the federal prosecution was made
in bad faith but rather whether the [g]overnment’s later efforts to
terminate the prosecution were similarly tainted with impropri-
ety”). It does not turn on the government’s reasons for initiating
the prosecution. By focusing on the government’s reason for filing
the information—to institute the prosecution under section
3282(a)—and not on the government’s reason for dismissing the
information—B.G.G.’s refusal to waive his right to indictment and
consent to the information—the district court made an error of
law.
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26 Opinion of the Court 21-10165
The dissenting opinion says that this case is different from
Rinaldi because, unlike that case, “the government’s reason for fil-
ing and dismissing the information was one and the same.” Dis-
senting Op. at 8–9. But that’s not what the district court found. As
to filing the information, the district court found that the govern-
ment’s “sole motivation” “was to preserve the availability to pro-
ceed with criminal charges against the [d]efendant in the future.”
As to dismissing the information, the district court found that the
government moved to dismiss it “[b]ecause” B.G.G. “declined to
waive his right to indictment by a grand jury and consent to pro-
ceed by way of [i]nformation.” And the district court found, again,
that “[b]ecause [B.G.G.] w[ould] not consent to proceed by way of
[i]nformation, the [g]overnment request[ed] dismissal without
prejudice.” The dissenting opinion believes that the “filing and the
dismissal [were] inextricable,” id. at 9, but that’s not what the dis-
trict court found. The government’s reasons for filing and dismiss-
ing the information, the district court found, were not the same.
The dissenting opinion concedes that “the district court
needn’t have . . . discussed the government’s reasons for filing the
information” and, instead, points to a few stray references in the
district court’s order to the government’s reasons for dismissal and
says that’s enough. Id. at 10. But it’s not. If we ignored the parts
of the district court’s order discussing the government’s reasons for
filing the information, there wouldn’t be much of an order left.
That’s because, as the district court explained, it “devote[d] consid-
erable attention” to “whether the [g]overnment ‘instituted’ the
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21-10165 Opinion of the Court 27
unconsented [i]nformation by filing it with the [c]ourt.” And the
district court was true to its word. Its considerable attention went
on for thirteen pages (out of less than twenty) explaining why, un-
der section 3282 and rule 7(b), the information was not instituted
for statute-of-limitation purposes. Even the district court acknowl-
edged that what it was doing was “unusual.” It was unusual be-
cause devoting considerable attention to the government’s reasons
for initiating the prosecution was exactly the error the district court
made—and what led to a reversal—in Rinaldi.
4.
Fourth, the district court erred in failing to apply the ulti-
mate test in deciding whether to grant “leave” to dismiss the infor-
mation: where the defendant has overcome the presumption of
good faith, an information “will be dismissed” “if the reason for
dismissal does not go to the merits or demonstrate a purpose to
harass.” Matta, 937 F.2d at 568. Here, the district court didn’t find
that B.G.G. had overcome the presumption of good faith. It didn’t
find that the government’s reason for the dismissal went to “the
merits” of the information. See id. And it didn’t find that the rea-
son for the dismissal demonstrated a purpose to harass B.G.G. At
best, the district court found that the government’s purpose in fil-
ing the information—not in moving to dismiss it—“arguably” was
harassment. But that’s not the ultimate test for granting “leave”
under rule 48(a).
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28 Opinion of the Court 21-10165
5.
Fifth and finally, the district court erred in dismissing the in-
formation with prejudice. The government sought “leave to dis-
miss the information without prejudice” and argued that the dis-
trict court had “no legal basis to dismiss the information with prej-
udice.” Once the district court decided to grant “leave” to dismiss
the information before trial, the dismissal under rule 48(a) had to
be without prejudice and could not bar a future prosecution. See
Davis, 487 F.2d at 118 (explaining that “the authorities are replete”
that rule 48(a) dismissals are “without prejudice” and “do[] not bar
a subsequent prosecution” (quotation omitted)); accord Pitts, 569
F.2d at 346–47 (jeopardy did not attach to second indictment for
the same charges where the first indictment was dismissed under
rule 48(a) with leave of court before trial).
The district court, in exercising its limited discretion, must
decide whether to grant “leave” or deny it after following the rule
48(a) requirements. If the district court grants “leave” before trial,
the dismissal must be without prejudice and the dismissal will not
bar to a second prosecution.
The dissenting opinion quotes the dicta in Matta—that
“[g]enerally, unless a contrary intent is clearly expressed, rule 48(a)
dismissals are without prejudice,” 937 F.2d at 568—and says that,
despite what “the old Fifth Circuit” held in Davis and Pitts, the dis-
trict court had the discretion to ignore the government’s dismissal
without prejudice, and, instead, dismiss the information with
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21-10165 Opinion of the Court 29
prejudice and bar a second prosecution.7 Dissenting Op. at 11–13.
But it did not.
When Matta said “unless a contrary intent is clearly ex-
pressed,” it was referring to the government’s clearly expressed
contrary intent. Recognizing that the government is the “first” and
“the best judge of whether a pending prosecution should be termi-
nated,” Cowen, 524 F.2d at 513, the text of rule 48(a) gives the
7
The “unless-a-contrary-intent-is-clearly-expressed” language in Matta is dicta
because no contrary intent was clearly expressed in that case and “[a] decision
can hold nothing beyond the facts of that case.” See United States v. Birge,
830 F.3d 1229, 1233 (cleaned up). Because there was no clearly expressed con-
trary intent in Matta, the case could not have held that there’s an exception to
the general rule that rule 48(a) dismissals are without prejudice. The dissent-
ing opinion doesn’t dispute that the Matta dicta is anything but dicta.
Instead, the dissenting opinion responds that the rule of Davis—that pretrial
rule 48(a) dismissals are without prejudice and do not bar a second prosecu-
tion—is dicta. But it is not. In Davis, the defendants argued that the dismissal
of their first indictment under rule 48(a) barred a second indictment and pros-
ecution. 487 F.2d at 118. The former Fifth Circuit rejected the defendants’
argument because: (1) “the authorities [were] replete that” a rule 48(a) “dis-
missal [was] without prejudice”; (2) under rule 48(a), jeopardy attached to dis-
missals “only when a trial ha[d] begun” and not before; and (3) rule 48(a) re-
quired the court’s consent only “because a dismissal under [r]ule 48(a) d[id]
not bar a subsequent prosecution.” Id. That rule 48(a) dismissals were with-
out prejudice and did not bar a second prosecution was necessary to the result
in Davis that the defendants’ second prosecution was not barred by the earlier
rule 48(a) dismissal. See United States v. Matchett, 802 F.3d 1185, 1195 (11th
Cir. 2015) (“A holding is comprised both of the result of the case and those
portions of the opinion necessary to that result by which we are bound.” (quo-
tations omitted)).
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30 Opinion of the Court 21-10165
government—and not the court—the discretion to seek dismissal
of an information (or indictment). The rule couldn’t be clearer:
“[t]he government may . . . dismiss an indictment, information, or
complaint.” Fed. R. Crim. P. 48(a) (emphasis added).
Because the government is the only party allowed under
rule 48(a) to seek the dismissal, the government gets to decide the
nature of the dismissal it seeks. Generally, the government’s dis-
missal is without prejudice so as not to preclude it from refiling the
information. But if, in its dismissal, the government clearly ex-
presses a contrary intent to dismiss the information with prejudice,
then any leave to dismiss the information will be with prejudice.
That is what Matta referred to when it said that, generally, a rule
48(a) dismissal is without prejudice and does not bar a later prose-
cution unless a contrary intent is clearly expressed.
The district court’s role is a limited one. After complying
with the rule 48(a) requirements, the district court has two options
under the rule’s text—it may grant “leave” (that is, “permission”)
or deny it. See Leave, Black’s Law Dictionary 1069 (11th ed. 2019).
The district court may give the government permission to dismiss
the information on the terms it sought, or the court can withhold
permission after complying with the rule 48(a) requirements. But
rule 48(a) does not give the district court the discretion to rewrite
the government’s dismissal motion from one without prejudice to
one with prejudice. It is the government’s dismissal—not the
court’s. And not the defendant’s. Because the district court here
did more than grant the government “leave” to dismiss the
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21-10165 Opinion of the Court 31
information without prejudice—by dismissing the information
with prejudice and barring a further prosecution—it abused the
limited discretion given to it under rule 48(a).
The dissenting opinion never really grapples with the text of
rule 48(a), and the limited role courts play in granting leave to dis-
miss a pending prosecution, because it thinks the result is “repug-
nant to the constitutional protections afforded criminal defend-
ants.” Dissenting Op. at 13. It cannot be, the dissenting opinion
explains, that if the district court properly finds bad faith its only
options are to grant or deny the government leave to dismiss the
information.
Of course these aren’t the district court’s only options under
the Constitution, the U.S. Code, the Federal Rules of Criminal Pro-
cedure, and the court’s inherent powers. But this case is not about
the broad menu available to the district court to address bad faith.
It is about the sharply limited role the courts play in the separation
of powers balance inherent in rule 48(a). See Bernard, 42 F.4th at
908. Under that balance, rule 48(a) limits the district court to grant-
ing or denying the government permission to dismiss the infor-
mation without prejudice (unless the government expresses a con-
trary intent).
The dissenting opinion clearly believes that what the gov-
ernment did in this case was unfair. See, e.g., Dissenting Op. at 1,
2 n.1, 7, 11 (describing what the government did as “concocted,”
“unheard of,” “harassment,” and a “singular bad-faith gambit”).
But “[e]ven if we agree that [a rule] allows for harsh or unfair
USCA11 Case: 21-10165 Date Filed: 11/22/2022 Page: 32 of 47
32 Opinion of the Court 21-10165
consequences, that does not give us license to ignore the plain
meaning of the text.” Highpoint Tower Tech. Inc. v. Comm’r of
Internal Revenue, 931 F.3d 1050, 1060 n.8 (11th Cir. 2019) (first al-
teration in original; quotation omitted). Rule 48(a)’s plain text does
not allow the district court to grant a defendant’s request to dismiss
the information with prejudice. See Fed. R. Crim. P. 48(a) (“The
government may, with leave of court, dismiss an indictment, infor-
mation, or complaint.” (emphasis added)). Yet, as the dissenting
opinion acknowledges, that’s exactly what the district court did
here—it granted B.G.G’s request for a dismissal with prejudice.
See Dissenting Op. at 2 (The district court “granted the govern-
ment’s motion in part, but only with prejudice—as B.G.G. re-
quested.”).
* * * *
The “district court abuses its discretion” where it “applies
the law in an . . . incorrect manner” and “follows improper proce-
dures in making a determination.” United States v. Green, 873 F.3d
846, 854 (11th Cir. 2017) (quotation omitted). That is what hap-
pened here. The district court did not follow the rule 48(a) “leave
of court” requirements. It did not presume that the government’s
dismissal was in good faith. It did not find bad faith to overcome
the good-faith presumption. It did not focus on the government’s
reasons for moving to dismiss the information. It did not apply the
ultimate test for granting “leave of court.” And it did not dismiss
the information without prejudice. Because of these errors of law,
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21-10165 Opinion of the Court 33
the district court’s order dismissing the information was an abuse
of discretion.
CONCLUSION
Although “a dismissal under [r]ule 48(a) does not bar a sub-
sequent prosecution,” it also “does not impair the protection af-
forded by the statute of limitations.” Davis, 487 F.2d at 118. If the
grand jury later indicts B.G.G., he can still raise a statute of limita-
tions defense. We do not pass on the statute of limitations issue
today and do not determine whether the sealed information was
instituted within the meaning of section 3282(a). We simply con-
clude that the district court erred in not applying the “leave” re-
quirements for dismissing an information under rule 48(a). We
therefore vacate the dismissal order and remand to the district
court for further proceedings consistent with this opinion.
VACATED AND REMANDED.
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21-10165 WILSON, J., Dissenting 1
WILSON, Circuit Judge, Dissenting:
Amidst the COVID-19 pandemic, some districts, including
the Southern District of Florida, imposed a temporary grand jury
moratorium. With the moratorium in place, prosecutors in the
Southern District of Florida worried that they would be unable to
charge Defendant B.G.G. with two alleged felony offenses within
the five-year statute of limitations. The statute of limitations was
set to expire on August 31, 2020, and the grand jury moratorium
was to extend at least through November of that year. Because the
charged offenses were felonies, B.G.G. had a constitutional right to
a grand jury indictment. See Stirone v. United States, 361 U.S. 212,
215 (1960). Only if he waived that right could the government pro-
ceed without convening a grand jury and charge him by infor-
mation. Fed. R. Crim. P. 7(b). And the government knew that
B.G.G. had not consented to being charged by information. That
is, he had not waived his right to indictment by grand jury.
But prosecutors concocted what they hoped was a worka-
round. Just before the statute of limitations would expire, the gov-
ernment would file an information that it never expected to be vi-
able for prosecution. After the statute of limitations expired, the
government would move for dismissal of the information without
prejudice. By doing so, the government thought, it could take ad-
vantage of a seldom-used statute, 18 U.S.C. § 3288, which allows
the government a six-month grace period “[w]henever an indict-
ment or information charging a felony is dismissed for any reason
after the period prescribed by the applicable statute of limitations
USCA11 Case: 21-10165 Date Filed: 11/22/2022 Page: 35 of 47
2 WILSON, J., Dissenting 21-10165
has expired.” 1 Using that grace period, the government theorized,
it could bring an indictment once grand juries resumed.
The government put that theory to the test here. On August
28, 2020, it filed an information charging B.G.G. with two felony
counts. Three days later, on the very date the five-year statute of
limitations was set to expire, the government served the infor-
mation on B.G.G. at 6:33 p.m. The next day, the government
moved to dismiss the information without prejudice, seeking to
trigger the sixth-month extension provided by § 3288.
The district court, however, saw through the government’s
ploy. It granted the government’s motion in part, but only with
prejudice—as B.G.G. requested. In its order, the court took the
government to task for attempting “an end-run around the statute
of limitations” in contravention of the defendant’s rights. In my
view, the district court reached the right result.
The parties mostly agree as to the controlling law in our cir-
cuit. Under rule 48(a), “[t]he government may, with leave of court,
dismiss an indictment, information, or complaint.” Fed. R. Crim.
P. 48(a). Where the government acted in good faith, rule 48(a) dis-
missals are without prejudice. United States v. Matta, 937 F.2d 567,
568 (11th Cir. 1991). And “the government is entitled to a
1An amicus brief filed by former federal prosecutors in support of B.G.G. ex-
plains that § 3288, and its sister provision, § 3289, “were rarely used and were
unheard of by most prosecutors” before the pandemic.
USCA11 Case: 21-10165 Date Filed: 11/22/2022 Page: 36 of 47
21-10165 WILSON, J., Dissenting 3
presumption of good faith,” but the defendant can overcome that
presumption by showing that the dismissal was in bad faith. Id.
We have explained that the government acts in bad faith by
seeking dismissal “to achieve a tactical advantage in derogation of
the defendant’s rights or for the purpose of harassment.” United
States v. Dyal, 868 F.2d 424, 429 (11th Cir. 1989). And one form of
prosecutorial harassment is “charging, dismissing, and recharg-
ing . . . over the defendant’s objection.” Rinaldi v. United States,
434 U.S. 22, 29 n.15 (1977) (per curiam); see also United States v.
Salinas, 693 F.2d 348, 353 (5th Cir. 1982) (explaining that “prosecu-
torial harassment involves charging, dismissing, and subsequently
commencing another prosecution at a different time or place
deemed more favorable to the prosecution”). When the defendant
demonstrates that the initial dismissal was in bad faith and for the
purpose of harassment, the government is not entitled to dismissal
without prejudice. See Matta, 937 F.2d at 568.
That is what happened here. The government’s purpose,
plain and simple, was “to achieve a tactical advantage in derogation
of [B.G.G.’s] rights.” Dyal, 868 F.2d at 429. So, by definition, the
government acted in bad faith. Moreover, the government’s plan
to “charg[e], dismiss[ ], and recharg[e] [B.G.G.] . . . over [his] objec-
tion” is exactly what the Supreme Court has labeled harassing con-
duct. Rinaldi, 434 U.S. at 29 n.15. The district court thus correctly
dismissed the information with prejudice.
Yet the majority reverses the district court, offering five rea-
sons to support its decision: (1) the district court failed to apply the
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4 WILSON, J., Dissenting 21-10165
good-faith presumption; (2) the district court made no finding of
bad faith to rebut the good-faith presumption; (3) the district court
improperly focused on the government’s reasons for filing the in-
formation rather than its reasons for seeking dismissal; (4) the dis-
trict court never made a finding that the government’s reason for
seeking dismissal went to the merits of the information or that its
purpose was to harass the defendant; and (5) under binding prece-
dent, rule 48(a) dismissals are without prejudice. Maj. Op. at32. As
I’ll explain, I see things differently.
First off, I disagree that the district court failed to apply the
presumption of good faith. As the majority acknowledges, the dis-
trict court stated plainly that “the government is entitled to a pre-
sumption of good-faith.” Then, in a footnote, the court described
how that rule works in a case where the government failed to state
its reasons for dismissal. In such a case, a defendant can rebut the
good-faith presumption by showing: (1) bad faith or (2) that he was
prejudiced in his ability to attack the prosecution’s motives. See
Dyal, 868 F.2d at 428. In other words, while defendants normally
have to show bad faith to rebut the good-faith presumption, a sec-
ond avenue becomes available to them when the government has
been silent as to its motivations.
In this case, however, the government had given its reasons
for dismissal. So, the district court concluded that this rule was ir-
relevant. Here’s what the district court said in the footnote:
To overcome the presumption of good faith in
cases where the government has failed to articulate
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21-10165 WILSON, J., Dissenting 5
any reason or factual basis for dismissal in the [r]ule
48(a) motion or proposed order, the defendant must
show that “(1) the [] dismissal was in bad faith, or (2)
that the defendant has been prejudiced in his ability
to attack the prosecutor’s motives due to the trial
court’s failure to require submission of adequate rea-
sons . . . .” [Dyal, 868 F.2d at 428] (internal quotation
marks omitted); see also Matta, 937 F.2d at 568. In
the instant case, the Government has identified the
reason it seeks a [r]ule 48(a) dismissal in its proposed
Order of Dismissal; therefore, I do not find this rule
relevant to the case at hand.
The majority reads this footnote differently. It casts the dis-
trict court as having “determined that the presumption of good
faith wasn’t ‘relevant to the case at hand.’” Maj. Op. at 9 (emphasis
added). I don’t think that’s a fair reading of the footnote. All the
district court said was that a rule telling us what happens when the
government does not give its reasons for dismissal is irrelevant
where the government does give its reasons for dismissal. The final
sentence of the footnote limits the district court’s remark about rel-
evancy to “this rule,” which in context naturally refers to the rule
described in the sentence immediately prior. It would have been
curious indeed for the district court to state the good-faith pre-
sumption above the line, only to find it irrelevant below the line.
In context, that’s not what the district court did.
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6 WILSON, J., Dissenting 21-10165
Of course, the majority also disputes that the district court
ever found the government to be seeking dismissal in bad faith.
But I read the district court’s order differently. Although the order
did not explicitly find that the good-faith presumption was rebut-
ted, it made that finding implicitly. Time and again, we have held
that we can “infer[ ] from a district court’s explicit factual findings
and conclusion implied factual findings that are consistent with its
judgment although unstated.” United States v. $242,484.00, 389
F.3d 1149, 1154 (11th Cir. 2004) (en banc); see also United States v.
Watkins, 13 F.4th 1202, 1213–14 (11th Cir. 2021) (collecting cases).
Here, when the district court found that the government’s
use of rule 48(a) to achieve “a tactical advantage” was “inconsistent
with honoring [B.G.G.’s] rights,” it was quoting the definition of
bad faith in this context. See Dyal, 868 F.2d at 429 (defining bad
faith as seeking dismissal “to achieve a tactical advantage in dero-
gation of the defendant’s rights or for the purpose of harassment”).
While acknowledging the government’s contention that it “acted
in good faith in seeking to charge [B.G.G.] and subsequently dis-
miss such charges,” the district court stated that it “disagree[d] with
the Government’s implicit characterization of its motivations.” So,
the district court’s order, fairly read, implicitly found bad faith, and
that implied finding was consistent with the court’s judgment. See
$242,484.00, 389 F.3d at 1154.
The district court’s finding about the government’s tactical
motives and its finding disagreeing with the government’s charac-
terization of its own motives are entitled to deference from this
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21-10165 WILSON, J., Dissenting 7
court under a clearly erroneous standard. Matta, 937 F.2d at 568.
They are not clearly erroneous as the record supports the conclu-
sion that the government’s purpose was to harass B.G.G., thus
overcoming the presumption of bad faith and justifying dismissal
with prejudice. The majority emphasizes that the district court
stopped short of finding harassment because it stated only that
there was “arguably” harassment. Maj. Op. at 27. Even so, we may
affirm for any reason supported by the record, United States v.
Chitwood, 676 F.3d 971, 975 (11th Cir. 2012), and this record estab-
lishes that the government’s conduct amounted to harassment as
the Supreme Court has defined it in this context.
The majority opinion claims that the district court “explic-
itly found” the government acted in good faith. Maj. Op. at 22.
Not so. The only citation for this “finding” is to the district court’s
order requesting supplemental briefing from the parties. To the
extent that the district court’s statement in a non-appealable, non-
final case management order shows anything, it shows only that
the district court did not “question[]” the government’s good faith
at that time. Following that order, the district court received two
supplemental briefs as well as an hour of oral argument. With the
benefit of that information, the district court’s final order dismiss-
ing the case with prejudice reflected the implicit finding of bad faith
I described above.
As explained above, the purpose of the “leave of court” re-
quirement is “to protect a defendant against prosecutorial harass-
ment, e.g., charging, dismissing, and recharging, when the
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8 WILSON, J., Dissenting 21-10165
Government moves to dismiss . . . over the defendant’s objection.”
Rinaldi, 434 U.S. at 29 n.15. Is there any set of facts that better fits
this definition? The district court found—and the record sup-
ports—that the government sought “to charge, dismiss, and re-
charge at a different time or place deemed more favorable to the
prosecution.” As the district court observed, the government has
been transparent about its aim: to charge B.G.G., dismiss the
charges, and then to recharge, to avoid the running of the statute
of limitations. I recognize that the district court hedged its finding
by calling the government’s conduct “arguably” harassment. But
because the record emphatically supports the district court’s im-
plicit finding that the government’s conduct amounted to harass-
ment, as the Supreme Court has defined that term, the district
court’s order should be affirmed. Chitwood, 676 F.3d at 975.
I am equally unpersuaded by the majority’s contention that
we should reverse because the district court improperly focused on
whether filing the information, rather than dismissing it, was a tac-
tical move. The majority is correct that in Rinaldi the Supreme
Court held that what mattered was “not whether the decision to
maintain the federal prosecution was made in bad faith but rather
whether the Government’s later efforts to terminate the prosecu-
tion were similarly tainted with impropriety.” 434 U.S. at 30. And
in that case, the government’s reasons for terminating the prosecu-
tion were not “clearly contrary to manifest public interest.” Id.There are two critical differences here. First, unlike in
Rinaldi, the government’s reason for filing and dismissing the
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21-10165 WILSON, J., Dissenting 9
information was one and the same. The government had a singu-
lar aim: to extend the statute of limitations. The majority isolates
the district court’s finding that the government dismissed the case
“because” B.G.G. did not consent to proceed without an indict-
ment. Maj. Op. at26. But this misses the forest for the trees. The
filing and the dismissal are inextricable. Without the filing there
can be no dismissal and without dismissal the government cannot
extend the statute of limitations under § 3288. The filing had no
independent significance beyond facilitating the dismissal because
the government filed the information fully anticipating that B.G.G.
would not consent to prosecution by information.2 Without that
consent the filing must have been dismissed. Given their code-
pendent nature, it is understandable that the district court would
have spoken about the government’s motivations for filing and dis-
missing the information interchangeably.
Second, and more fundamentally, the district court did not
ignore the prosecution’s reason for dismissing the information. Ra-
ther, the district court discussed both the reason for filing and for
dismissing the information. The district court’s order stated, for
example, that “by seeking dismissal on September 2, 2020—two
days after the statute of limitations expired—the Government
2 In their motion to seal, filed contemporaneously with the information, the
government noted that “[u]pon information and belief, the defendant will not
consent to proceed by way of information.” In their supplemental briefing
they conceded “the government did anticipate the defendant would not con-
sent.”
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10 WILSON, J., Dissenting 21-10165
ensured that its proposed Order of Dismissal would be entered at
a time that would toll the limitations period . . . .” It was “no mys-
tery,” the court went on, “that the Government strategically timed
its filing of the Information and Order of Dismissal ‘to protect
against the running of the statute of limitations’ in light of the
Southern District of Florida’s temporary suspension of grand juries
due to the coronavirus pandemic.” The court reiterated that the
government “move[d] for the relief of dismissal without prejudice
in order to extend the statute of limitations.” And the court made
clear that “[a]llowing such tactics, wherein the Government seeks
dismissal of the Information solely to safeguard its ability to charge
Defendant at a later date, would not serve the strong public interest
of upholding statutory and constitutional protections.” I could go
on.
True, the district court needn’t have also discussed the gov-
ernment’s reasons for filing the information. In this particular in-
stance, doing so clearly highlighted the reasons for terminating the
case. Regardless, the district court made the requisite findings re-
garding the government’s reasons for seeking dismissal, and the
record supports those findings. As a result, there is no basis for
reversal here.
The majority compares page counts and faults the district
court for discussing “why, under section 3282 and rule 7(b), the in-
formation was not ‘instituted’ for statute-of-limitation purposes.”
Maj. Op. at 27. The majority suggests this was “exactly the error
the district court made . . . in Rinaldi.” Maj. Op. at 27. However,
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21-10165 WILSON, J., Dissenting 11
far from violating Rinaldi, the district court’s discussion of the stat-
utory scheme under section 3282 only serves to buttress the im-
plicit finding that the dismissal was sought in bad faith. The district
court’s explanation of its actions speaks for itself:
The framing of [the section 3282] inquiry in the
context of a [r]ule 48 dismissal is unusual. . . . [H]ow-
ever, in furtherance of its strategy, the Government
moves for the relief of dismissal without prejudice in
order to extend the statute of limitations. . . . Were I
to grant the Government’s request, I would enable
and invite an action I believe to be unlawful. Dismis-
sal without prejudice would also be futile given my
finding that, as a matter of law, the statute of limita-
tions has expired. But for [r]ule 48 and § 3288, I would
have simply ignored the Information as a nullity.
The fact that the initial filing was a legal nullity and insuffi-
cient to “institute” a prosecution under section 3282 underscores,
again, that the act of filing the information existed only to allow for
its immediate dismissal under section 3288. One singular bad-faith
gambit, consummated in two-steps.
The majority offers a final purported rationale for reversal:
that a pair of old Fifth Circuit cases dictates that dismissal should
not have been with prejudice. See United States v. Davis, 487 F.2d
112, 118 (5th Cir. 1973); United States v. Pitts, 569 F.2d 343, 347 (5th
Cir. 1978). The majority cites these cases for the proposition that
a rule 48(a) dismissal is always without prejudice—regardless,
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12 WILSON, J., Dissenting 21-10165
apparently, of the government’s bad faith or improper motives.
But neither case says that. Those cases, unremarkably, state the
general rule that dismissals under rule (48)(a) are without preju-
dice. Neither Pitts nor Davis addressed whether district courts
have discretion to dismiss with prejudice under rule 48(a) when the
government engages in bad faith. That issue was not presented.
And in cases following Pitts and Davis, we have made clear
that: “Generally, unless a contrary intent is clearly expressed, rule
48(a) dismissals are without prejudice.” Matta, 937 F.2d at 568 (em-
phasis added) (citing Davis, 487 F.2d at 118). 3 In short, dismissal is
generally without prejudice. But when the government has acted
in bad faith and demonstrated a purpose to harass, the district court
can dismiss with prejudice. Because that’s what happened here,
the district court did not err.
The majority contends, “Matta . . . is referring to the gov-
ernment’s clearly expressed intent.” (emphasis added) However,
this is contradicted by the posture of Matta, Pitts, and Davis. All
three cases were appeals from second prosecutions, and denials of
the defendants’ motions to dismiss the second prosecutions. These
cases only arose because the original rule 48(a) dismissals of the first
prosecutions did not state whether they were with or without
3The majority argues that this rule from Matta is dicta because there was no
“contrary intent” in Matta to support that court creating an exception to what
the majority sees as the rule from Davis-Pitts. Maj. Op. at 29. If anything, the
absolute rule the majority extracts from Davis-Pitts was dicta because, as
noted previously, the issue was not presented in either case.
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21-10165 WILSON, J., Dissenting 13
prejudice. See, e.g., Pitts, 569 F.2d 346 n.3 (“[I]n the formal order,
issued from the bench, the indictment was not dismissed with prej-
udice.”). Thus, the district courts presiding over the second prose-
cutions were forced to decide whether the ambiguous rule 48(a)
dismissals barred the second prosecutions. This was an act of back-
wards looking gap-filling on the part of the second prosecution dis-
trict courts and the courts of appeals. Matta’s “unless a contrary
intent is clearly expressed” rule makes the most sense in this con-
text.
Reading Matta as the majority does creates a Catch-22 re-
pugnant to the constitutional protections afforded criminal defend-
ants. Under the majority’s reasoning, the district court has two op-
tions: it “may give the government permission to dismiss . . . on
the terms it sought, or the court can withhold permission.” Maj.
Op. at 30. If the district court properly finds bad faith on the part
of the government, then the only option, under the majority’s rea-
soning, is to deny the government’s motion to dismiss and con-
tinue the prosecution. But in a case like this, the information must
be dismissed because the defendant did not consent to be tried
without an indictment. What is the district court to do? If on the
one hand it refuses to dismiss and keeps the prosecution ongoing,
it subjects the criminal defendant to jeopardy in spite of their Fifth
Amendment right to be tried by grand jury indictment. If on the
other hand it dismisses the case without prejudice, the court re-
wards the government’s gambit to unilaterally extend the statute
of limitations. Cf. Klopfer v. North Carolina, 386 U.S. 213, 221–22
USCA11 Case: 21-10165 Date Filed: 11/22/2022 Page: 47 of 47
14 WILSON, J., Dissenting 21-10165
(1967) (condemning a North Carolina criminal procedure that al-
lowed the state prosecutor to enter a nolle prosequi and toll the
statute of limitations indefinitely as a derogation of the Sixth
Amendment’s Speedy Trial guarantee).
It remains to be seen whether the government’s gambit will
pay off. As the majority recognizes, B.G.G. will be free to challenge
any forthcoming indictment based on the statute of limitations.
But for the reasons I’ve explained, it shouldn’t come to that. There
is no question that the government sought to dismiss the infor-
mation to achieve a tactical advantage in derogation of B.G.G.’s
rights—the very definition of bad faith in this context. See Dyal,
868 F.2d at 429. And the government’s plan to “charg[e], dismiss[
], and recharg[e]” B.G.G. is the exact conduct the Supreme Court
has said constitutes harassment in this context. See Rinaldi, 434
U.S. at 29 n.15.
Pandemic or not, the district court was right to root out
these corner-cutting tactics. As the Supreme Court recently re-
minded us, “[i]f men must turn square corners when they deal with
the government, it cannot be too much to expect the government
to turn square corners when it deals with them.” Niz-Chavez v.
Garland, 141 S. Ct. 1474, 1486 (2021). I respectfully dissent.