United States v. Allen

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. No. 25-cr-139 JOSHUA ALLEN,

Defendant.

OPINION & ORDER

The Government has moved under Federal Rule of Criminal Procedure 48(a) to dismiss

Count Two of the Indictment against Defendant Joshua Allen without prejudice. Gov’t’s Suppl.

Mot. for Leave to Dismiss, ECF No. 24 (“Gov’t’s Mot.”). The Defendant seeks dismissal with

prejudice instead. Def.’s Resp. to Gov’t’s Mot., ECF No. 25 (“Def.’s Resp.”). For the reasons

explained below, the Government’s Supplemental Motion for Leave to Dismiss is GRANTED

and Count Two of the Indictment is dismissed without prejudice.

Under Rule 48(a), the government may move to dismiss any count of the indictment

before judgment is final. See United States v. Thorpe, 148 F.4th 768, 776–77 (D.C. Cir. 2025);

see also United States v. Burdeau, 168 F.3d 352, 359 (9th Cir. 1999). Although such dismissal

requires “leave of court,” Fed. R. Crim. P. 48(a), the court’s “role in reviewing” a motion for

leave to dismiss is “limited.” United States v. Florian, 765 F. Supp. 2d 32, 34 (D.D.C. 2011).

Under our system of separated powers, the discretion to “dismiss an indictment, and whether to

dismiss it with or without prejudice” generally lies “with the prosecutor.” Id.; see also Newman

v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967). The court’s “narrow” task is “to protect a

Page 1 of 3 defendant against prosecutorial harassment.” United States v. Fokker Servs. B.V., 818 F.3d 733,

742 (D.C. Cir. 2016) (cleaned up).

Thus, when the Government moves under Rule 48(a) to dismiss an indictment without

prejudice and supports its motion with a valid prima facie explanation, there is a “strong

presumption” that the case should be dismissed without prejudice. United States v. Trump, 757

F. Supp. 3d 82, 83 (D.D.C. 2024); see also Florian, 765 F. Supp. 2d at 35. In rare cases, this

presumption may be rebutted if the Government’s request was made in bad faith or if dismissal

without prejudice “would result in harassment of the defendant or would otherwise be contrary to

the manifest public interest.” United States v. Poindexter, 719 F. Supp. 6, 10 (D.D.C. 1989); see

also United States v. Salinas, 693 F.2d 348, 352 (5th Cir. 1982). Notably, the “public interest

inquiry” should be construed “narrowly in part because of the constitutional questions that would

[arise] if courts were to subject the government’s exercise of its prosecutorial discretion to non-

deferential review.” Fokker Servs., 818 F.3d at 743.

Here, “the Government’s proffered rationale is a legitimate one.” Florian, 765 F.

Supp. 2d at 36. It has explained that it moved to dismiss Count Two “due to a recent change in

the U.S. Department of Justice’s position regarding the constitutionality of the District of

Columbia’s regulations banning large-capacity ammunition feeder devices.” Gov’t’s Mot. at 1.

That explanation, on its face, does not indicate any sort of improper purpose or desire to gain an

unfair tactical advantage over the Defendant. See United States v. Pitts, 331 F.R.D. 199, 203–05

(D.D.C. 2019). The Government’s request to dismiss the indictment without prejudice is

therefore presumed valid.

The Defendant’s response does nothing to rebut this presumption. The Defendant asserts

that if the Government “were to change its position again about the constitutionality of the

Page 2 of 3 regulation, it would leave Mr. Allen at risk of being prosecuted at some point in the future” and

cause him “uncertainty.” Def.’s Resp. at 1–2 (cleaned up). The court appreciates those

concerns. But “[t]he mere fact that a dismissal without prejudice leaves the door open to

hypothetical future prosecution . . . is not tantamount to prosecutorial harassment.” Florian, 765

F. Supp. 2d at 36. If that were so, every dismissal would need to be dismissed with prejudice,

but the presumption is the exact opposite.

Accordingly, the Government’s Supplemental Motion for Leave to Dismiss, ECF No. 24,

is GRANTED; the Government’s Motion to Dismiss, ECF No. 23, is DENIED AS MOOT; and

Count Two of the Indictment is dismissed without prejudice.

SO ORDERED.

Date: October 10, 2025

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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