United States v. Jovanovic

• Court: District Court, District of Columbia
• Decided: January 22, 2025
• Docket: Criminal No. 2025-0015
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Action No. 25-15 (BAH)

PREDRAG JOVANOVIC, Judge Beryl A. Howell

Defendant.

MEMORANDUM AND ORDER

The United States government moves to dismiss, with prejudice, the six-count Indictment,

ECF No. 18, against defendant Predrag Jovanovic. Govt’s Mot. to Dismiss Indictment with

Prejudice Pursuant to Federal Rule Criminal Procedure 48(a) (“Govt’s MTD”), ECF No. 21. For

the reasons explained below, the government’s motion is granted in part and denied in part, and

the pending indictment against defendant is dismissed without prejudice.

I. BACKGROUND

Defendant was indicted by a grand jury on six counts—two felonies and four

misdemeanors—alleging that he engaged in serious criminal conduct on January 6, 2021,

including assaulting law enforcement officers. See Indictment. Based on an investigation

conducted by the Federal Bureau of Investigation (FBI) and analysis of photographic and

videotape recordings from the attack on U.S. Capitol building on January 6, 2021 defendant is

alleged to have entered the Capitol, after ascending scaffolding on the northwest side of the

building, Complaint, Statement of Facts (“SOF”) at 4-5, ECF No. 1-1; entered the Lower West

Terrace Tunnel, id. at 5-6; rushed a line of police officers, who were inside the tunnel blocking the

entrance into the building, id. at 6; and forced open a door thereby allowing rioters to break the

police line and leading to a prolonged scuffle between defendant and the officers, id. at 7. During

1 the next fifteen minutes in which defendant remained in the Tunnel, defendant is alleged to have

pushed directly against one officer’s riot shield and grabbed an officer’s baton, pulling on it to

drag that officer toward the mob. Id. at 7-8. Defendant was eventually driven out of the tunnel

by chemical spray deployed against the rioters. Id. at 8. He nevertheless allegedly remained in

the restricted area of the Capitol, even later returning to the area near the tunnel, until the grounds

were cleared by officers using tear gas. Id. at 10-12.

As a result, defendant was charged with obstructing, impeding, or interfering with law

enforcement during a civil disorder, in violation of 18 U.S.C. § 231(a)(3); forcibly assaulting,

resisting, or opposing an officer engaged in the performance of official duties, in violation of 18

U.S.C. § 111(a)(1); knowingly entering and remaining in a restricted building or grounds, in

violation of 18 U.S.C. § 1752(a)(1); knowingly and with intent to impede or disrupt government

business, engaging in disorderly and disruptive conduct on restricted grounds (and actually

disrupting government business), in violation of 18 U.S.C. § 1752(a)(2); willfully and knowingly

engaging in disorderly and disruptive conduct within the Capitol Building and grounds with the

intent to impede or disrupt a session of Congress, in violation of 40 U.S.C. § 5104(e)(2)(D); and

willfully and knowingly obstructing and impeding passage through and within the Capitol

grounds and any Capitol building, in violation of 40 U.S.C. § 5104(e)(2)(E). See Indictment.

Less than a week after the filing of the indictment, the government now seeks its

dismissal under Federal Rule of Criminal Procedure 48(a). See Indictment; Govt’s MTD.

II. DISCUSSION

Courts have limited power when the federal government decides to stop prosecuting a

criminal defendant. See, e.g., Wayte v. United States, 470 U.S. 598, 607-08 (1985) (recognizing

the government’s broad prosecutorial discretion); United States v. Fokker Servs. B.V., 818 F.3d

2 733, 742 (D.C. Cir. 2016) (recognizing same prosecutorial discretion in “decisions to dismiss

pending criminal charges”). At the same time, the Supreme Court and D.C. Circuit have both

recognized that the “leave of court” requirement in Rule 48(a) “obviously vest[s] some discretion

in the court.” Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977); United States v. Ammidown,

497 F.2d 615, 620 (D.C. Cir. 1973) (noting that this rule “gives the court a role in dismissals

following indictment”). This discretion is granted in part to “guard[] against abuse of prosecutorial

discretion.” Ammidown, 497 F.2d at 620. To ensure that the government’s request for dismissal

of criminal charges “sufficiently protects the public,” the government may be required to submit

“a statement of reasons and underlying factual basis,” which must be “substantial” to justify the

dismissal and not “a mere conclusory statement.” Id.

Here, the government’s cursory motion provides no factual basis for dismissal. Instead,

the single paragraph explanation included in the one-page dismissal motion cites “as the reason

for this dismissal,” only a presidential proclamation “dated January 20, 2025, Granting Pardons

and Commutation of Sentences for Certain Offenses Relating to the Events at Or Near the United

States Capitol on January 6, 2021.” Govt’s MTD at 1. This cited proclamation, inter alia, directs

the Attorney General “to pursue [the] dismissal with prejudice to the government of all pending

indictments against individuals for their conduct related to the events at or near the United States

Capitol on January 6, 2021.” See PROCLAMATION, (Jan. 20, 2025) (capitalization in original),

available at https://www.whitehouse.gov/presidential-actions/2025/01/granting-pardons-and-

commutation-of-sentences-for-certain-offenses-relating-to-the-events-at-or-near-the-united-

states-capitol-on-january-6-2021/. The only reason provided for this instruction, as set out in the

Proclamation’s introduction, is the assertion that this action “ends a grave national injustice that

3 has been perpetrated upon the American people over the last four years and begins a process of

national reconciliation.” Id.

No “national injustice” occurred here, just as no outcome-determinative election fraud

occurred in the 2020 presidential election. No “process of national reconciliation” can begin when

sore losers, whose preferred candidate loses an election, are glorified for disrupting a

constitutionally mandated proceeding in Congress and doing so with impunity. That merely raises

the dangerous specter of future lawless conduct by other sore losers and undermines the rule of

law. Yet, this presidential pronouncement of a “national injustice” is the sole justification provided

in the government’s motion to dismiss the pending indictment. See Govt’s MTD.

Having presided over scores of criminal cases charging defendants for their criminal

conduct both outside and inside the U.S. Capitol Building on January 6, 2021, which charges were

fully supported by evidence in the form of extensive videotapes and photographs, admissions by

defendants in the course of plea hearings and in testimony at trials, and the testimony of law

enforcement officers and congressional staff present at the Capitol on that day, this Court cannot

let stand the revisionist myth relayed in this presidential pronouncement. The prosecutions in this

case and others charging defendants for their criminal conduct at the U.S. Capitol on January 6,

2021, present no injustice, but instead reflect the diligent work of conscientious public servants,

including prosecutors and law enforcement officials, and dedicated defense attorneys, to defend

our democracy and rights and preserve our long tradition of peaceful transfers of power—which,

until January 6, 2021, served as a model to the world—all while affording those charged every

protection guaranteed by our Constitution and the criminal justice system. Bluntly put, the

assertion offered in the presidential pronouncement for the pending motion to dismiss is flatly

wrong.

4 Still, the D.C. Circuit has cautioned that a district court judge has “no power” “to deny a

prosecutor’s Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution’s

exercise of charging authority.” Fokker, 818 F.3d at 742; id. at 737 (“It has long been settled that

the Judiciary generally lacks authority to second-guess those Executive determinations, much less

to impose its own charging preferences.”). Despite finding that the sole reason relied upon by the

government to dismiss the charges in this case—i.e., an incorrect assertion in the presidential

proclamation—is neither substantial nor factually correct, the government’s view of the public

interest does not clearly fall within the types of reasons found to provide legitimate grounds to

deny the government Rule 48(a) motion to dismiss charges. See United States v. Flynn, 507 F.

Supp. 3d 116, 130-31 (D.D.C. 2020) (collecting examples where a government motion to dismiss

should be denied as not serving “legitimate prosecutorial interests,” because the motion “was a

sham or deception,” “was based on ‘acceptance of a bribe, personal dislike of the victim, and

dissatisfaction with the jury impaneled,’” or was meant to favor “politically well-connected

individuals” (citations omitted)). Therefore, the government’s motion to dismiss the indictment is

GRANTED.

Nothing about the government’s reasoning for dismissal warrants entry of dismissal with

prejudice, however. Dismissal with prejudice is a complete adjudication of the matter and would

bar any further prosecution of defendant for his offense conduct at issue. See Brown v. Amtrak

Corp., No. 03-7003, 2003 WL 22433755, at *1 (D.C. Cir. Oct. 27, 2023) (“A dismissal ‘with

prejudice’ is a final judgment on the merits which bars further litigation between the same parties.”

(citing Bd. of Trs. of the Hotel & Rest. Emps. Local 25 v. Madison Hotel, Inc., 97 F.3d 1479, 1489

n.20 (D.C. Cir. 1996))); Reed v. Farley, 512 U.S. 339, 368 (1994) (Blackmun, J., dissenting)

(“The dismissal with prejudice of criminal charges is a remedy rarely seen in criminal law, even

5 for constitutional violations.”). This result would be improper here, particularly given the strength

of the evidence supporting allegations that this defendant violently struggled to break a police line

blocking entry into the Capitol, which evidence provides ample basis for criminal prosecution.

See also Thorp v. District of Columbia, 142 F. Supp. 3d 132, 145 (D.D.C. 2015) (noting that

dismissal with prejudice “reflect[s] on the merits of the underlying action” (quoting Brown v. Carr,

503 A.2d 1241, 1245 (D.C. Cir. 1986), and citing Kenley v. District of Columbia, 83 F. Supp. 3d

20, 42 (D.D.C. 2015)). Instead, the government’s reliance on a policy assertion made in the

presidential proclamation that such prosecutions should not be continued warrants only

“render[ing] the proceedings a nullity and leav[ing] the parties as if the action had never been

brought,” Magliore v. Brooks, 844 F. Supp. 2d 38, 46 (D.D.C. 2012) (quoting Thoubboron v. Ford

Motor Co., 809 A.2d 1204, 1210 (D.C. Ct. App. 2002)), which is achieved by granting the

government’s motion to dismiss without prejudice, see id.

III. CONCLUSION AND ORDER

For the reasons above, the government’s motion to dismiss, ECF No. 21, is granted to the

extent that the Indictment, ECF No. 18, against defendant is dismissed, but denied as to the request

that this dismissal be “with prejudice.” Accordingly, it is hereby—

ORDERED that Indictment against defendant, ECF No. 18, is dismissed without

prejudice; it is further

ORDERED that the status conference scheduled for January 24, 2025, is VACATED;

and it is further

ORDERED that the Clerk of the Court is directed to close this case.

6 Date: January 22, 2025

__________________________ BERYL A. HOWELL United States District Judge