UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal No. 19-00049 (EGS)
MICHAEL PITTS,
Defendant.
MEMORANDUM OPINION
On January 19, 2019, the government filed a complaint
against Michael Pitts in the District of Columbia Superior Court
(“Superior Court”), charging him with several drug and firearm
offenses. The complaint was based on Mr. Pitts’ arrest after a
firearm and suspected drugs were found in a common area of his
mother’s apartment where he was allegedly living at the time.
Mr. Pitts was arraigned, detained for several days, and then
released into high intensity pretrial supervision, which
included electronic location monitoring, curfew restrictions,
and weekly in-person reporting. On February 22, 2019, while
reporting for pretrial supervision, Mr. Pitts was arrested
again, but this time on federal charges based on the identical
alleged criminal conduct that formed the basis for the Superior
Court complaint. After the second arrest, and a second period of
pretrial detention, Mr. Pitts was again released into high
intensity pretrial supervision. The Superior Court complaint and the federal indictment were both filed by the United States
Attorney’s Office for the District of Columbia; Mr. Pitts was
subject to jeopardy attaching simultaneously in two courts until
the government dismissed the Superior Court complaint in mid-
March.
Following a number of unforced errors by the government,
including a failure to timely produce drug testing results and
the unintentional destruction of Mr. Pitts’ cellphone, the
government now moves to dismiss the federal indictment without
prejudice under Federal Rule of Criminal Procedure 48(a). The
reason for the government’s motion is clear: it failed to
conduct forensic testing on the firearm recovered during the
search, and now cannot obtain those results without violating
Mr. Pitts’ rights under the Speedy Trial Act, (“Act”), 18 U.S.C.
§ 3161. Because dismissal without prejudice constitutes a
strategic use of Rule 48 prohibited under District of Columbia
Circuit precedent, as well as persuasive authority in this
district, and objectively amounts to prosecutorial harassment,
the Court will dismiss the indictment with prejudice.
I. Background
Mr. Pitts was arrested on January 18, 2019, after District
of Columbia Metropolitan Police Department officers executed a
search warrant at his mother’s apartment. Def.’s Opp’n, ECF No.
2 23, at 1. 1 The officers obtained the search warrant as a result
of two tips received a day earlier. Gov’t Mot. for Detention
(“Detention Mot.”), ECF No. 7 at 1. The tipsters both stated
that, within the last two weeks, they saw an individual with a
gun outside of the apartment building. Id. During the search of
the apartment, the officers noticed a number of jackets hanging
on the inside of the front door. Hr’g Tr., ECF No. 37 at 60:13–
61:5, Apr. 30, 2019. In one of the jackets, the officers found a
firearm. Id. In another, the officers found a credit card in Mr.
Pitts’ name. Id.
The government argues that the jackets belong to Mr. Pitts
because Mr. Pitts’ mother stated that they did. Gov’t Mot., ECF
No. 22 at 1; Hr’g Tr., ECF No. 37 at 59:2–11, Apr. 30, 2019. Mr.
Pitts was arrested and searched, and the officers found
approximately 6.06 grams of what was suspected to be cocaine
base on his person. Def.’s Opp’n, ECF No. 23 at 1–2. The
government also recovered a cell phone belonging to Mr. Pitts.
Detention Mot., ECF No. 7 at 2.
Mr. Pitts was presented in Superior Court the following
day, January 19, 2019, and charged by a complaint with felon in
possession of a weapon and drug-related charges based on the
1 When citing to electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document. 3 contraband recovered from the search. Def.’s Opp’n, ECF No. 23
at 2. He was initially detained by the court on the government’s
motion. Id. On January 23, 2019, five days after his arrest, the
court ordered Mr. Pitts released into high intensity pretrial
supervision which included a curfew from 10 p.m. to 6 a.m.,
electronic location monitoring, and weekly in-person reporting
to the Pretrial Services Agency. See id.
On February 22, 2019, while reporting to pretrial services,
Mr. Pitts was re-arrested. Hr’g Tr., at ECF No. 37 at 7:2–15,
Apr. 30, 2019. This new arrest stemmed from a federal indictment
charging Mr. Pitts with possession of a firearm and ammunition
after felony conviction, and several drug-related charges based
on the identical facts used to obtain the complaint in Superior
Court. See generally Indictment, ECF No. 1. The federal
indictment was filed pursuant to a new practice of transferring
“felon in possession” cases from Superior Court to this court. 2
Mr. Pitts was again detained after his arraignment in
federal court. Minute Entry (Feb. 22, 2019). The government
again moved for pretrial detention; however, on February 27,
2019, five days after Mr. Pitts’ detention, a magistrate judge
ordered him released again into high intensity pretrial
2 See https://www.washingtonpost.com/local/legal-issues/dc-mayor- taking-local-gun-cases-to-federal-court-sends-message-that- violence-will-not-be-tolerated/2019/02/06/ec7abb94-2a42-11e9- b2fc-721718903bfc_story.html?utm_term=.517ad4be768a. 4 supervision. See Minute Entry (Feb. 27, 2019). At that time, Mr.
Pitts was facing charges in both federal court and Superior
Court for identical alleged criminal conduct. The Superior Court
charges were not dismissed until March 11, 2019. Def.’s Opp’n,
ECF No. 23 at 3.
Mr. Pitts’ first hearing before this Court occurred on
March 7, 2019, when he asserted his Speedy Trial rights. See
Minute Entry (Mar. 7, 2019). He requested a trial date, and jury
selection was scheduled to commence on April 23, 2019. Id. The
government did not file any motions that could have tolled the
Act. The parties agree that, absent any tolling, the Act would
require Mr. Pitts’ federal trial to commence by no later than
May 3, 2019. See Def.’s Opp’n, ECF No. 23 at 3 (citing May 3,
2019 as the speedy trial deadline); see also Gov’t’s Reply, ECF
No. 27 at 4 (same).
At a status hearing on March 28, 2019, Mr. Pitts, through
counsel, informed the Court that the government had neither
produced lab reports for the substances recovered in the
apartment where Mr. Pitts was arrested, nor produced any records
recovered from Mr. Pitts’ cell phone. See Minute Entry (Mar. 28,
2019). The Court ordered the government to produce the records
by April 8, 2019, and scheduled a status hearing for April 9,
2019. Id. Mr. Pitts declined to waive his rights under the Act
and the April 23, 2019 trial date remained calendared. Id.
5 At the April 9th hearing, the government informed the Court
that it had failed to produce the telephone records or the drug
testing results by the April 8th deadline. See Minute Order
(April 9, 2019). The government stated that the cell phone
records were unintentionally destroyed and therefore the
government would not seek to introduce any cell phone records
during trial. Id. During the hearing on the government’s motion
to dismiss the indictment, the government’s attorney further
elaborated that Mr. Pitts’ cell phone fell off of a motorcycle
and “got run over” when a government agent was transporting the
phone for testing. Hr’g Tr., ECF No. 37 at 41:5–13, Apr. 30,
2019.
As for the drug testing results, the government stated that
it was unable to turn over the results due to “confusion and
backlog” at the testing agency. Gov’t. Mot., ECF No. 22 at 2.
The Court informed the parties that it would exclude drug
testing results and phone records from the evidentiary record at
trial because the government violated the Court’s order and
because the defendant would be prejudiced if the reports were
produced at a later date. See Minute Order (April 9, 2019).
On April 15, 2019, the government moved to dismiss the
indictment without prejudice and stated that it was seeking
dismissal based on its failure to test the DNA swabs from the
gun recovered in the apartment. Gov’t’s Mot., ECF No. 22. at 1.
6 The government explained that this was an “oversight” and that
it was seeking dismissal of the indictment without prejudice “in
order to get the tests done.” Id. at 2. The government,
moreover, contends that due to this oversight, “the most
appropriate course of action is to dismiss the pending
indictment without prejudice and await the test results.” Id.
On April 30, 2019, the Court presided over a motion hearing
on the question of whether to dismiss the indictment with or
without prejudice. At the hearing, the government explained it
would not pursue the drug charges if it reindicted Mr. Pitts.
Hr’g Tr., ECF No. 37 at 58:5–20, Apr. 30, 2019. The government
also explained it could have proceeded with the gun charge on
the scheduled trial date. Id. at 67:4–5. Upon consideration of
the parties’ arguments, the Court dismissed the indictment and
explained that a written order would follow on whether the
dismissal was with or without prejudice. Id. at 77:20–78:4.
II. Discussion
Under Federal Rule of Criminal Procedure 48(a), the
“government may, with leave of court, dismiss an indictment,
information, or complaint.” Fed. R. Crim. P. 48(a). The primary
reason for the “leave of court” requirement is to “protect[] a
defendant from harassment, through a prosecutor's charging,
dismissing without having placed a defendant in jeopardy, and
7 commencing another prosecution at a different time or place
deemed more favorable to the prosecution.” United States v.
Ammidown, 497 F.2d 615, 620 (D.C. Cir. 1973); see also Rinaldi
v. United States, 434 U.S. 22, 29 n.15 (1977)(per curiam)(“The
principal object of the ‘leave of court’ requirement is
apparently to protect a defendant against prosecutorial
harassment, e.g., charging, dismissing, and recharging, when the
Government moves to dismiss an indictment over the defendant's
objection.”). “[T]he Rule has the effect of granting authority
to the court in exceptional cases to reject a dismissal without
prejudice--which would allow re-prosecution--if this 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)(stating if Court
finds a dismissal without prejudice would result in harassment
the Court “would then instead order a dismissal with
prejudice”). Although there is a strong presumption in favor of
a dismissal without prejudice, “the ultimate decision in that
regard depends upon the purpose sought to be achieved by the
government and its effect on the accused.” Id.
There is little precedent analyzing Rule 48(a) and the
standard for whether to dismiss with or without prejudice in
this circuit. The Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) discussed Rule 48(a) in United States
8 v. Ammidown, a case in which the D.C. Circuit reviewed a
district judge’s rejection of a plea agreement on the ground
that, because of what the judge believed was overwhelming
evidence of guilt, the public interest required the defendant to
be tried on the more serious charge. 497 F.2d at 618. The D.C.
Circuit took Rule 48 into consideration because of “[t]he
element in a plea bargain of dismissal of the charge of the
greater offense,” explaining that the primary reason for the
leave of court requirement under Rule 48 is “protecting a
defendant from harassment.” Id. at 619–20. As stated above, the
D.C. Circuit described harassment as “a prosecutor's charging,
dismissing without having placed a defendant in jeopardy, and
commencing another prosecution at a different time or place
deemed more favorable to the prosecution.” Id. at 620.
Courts in this district have interpreted Ammidown as
authority for a court to reject a request for dismissal without
prejudice if the reason for the dismissal is to gain a tactical
advantage or if the reprosecution of the defendant would
otherwise be contrary to the manifest public interest. See
Poindexter, 719 F. Supp. at 12 (dismissing with prejudice when
government’s reason for dismissal was to better position its
case). In Poindexter, the government sought to dismiss without
prejudice some, but not all, of the charges against the
defendant because of a defect in the government’s case,
9 specifically the presence of classified information that
precluded certain evidence from being presented at that time.
Id. The court dismissed the charges with prejudice, first noting
that the “subjective good faith of [the government], which [was]
repeatedly emphasized in the government's papers, [was] not at
issue.” Id. at 11. The court explained that the question is not
whether the government was acting in bad faith, but rather
whether the actions of the government objectively amounted to
harassment. Id.
The court held that “the government could not validly use
Rule 48(a) to gain a position of advantage, or to escape from a
position of less advantage in which it found itself as a result
of its own election.” Id. at 11 (citing United States v.
Salinas, 693 F. 2d 348, 353 (5th Cir. 1982)). The court
ultimately concluded that allowing the government to proceed to
trial on some charges and then reindicting at a later, unknown
date was a process that “would not be fair to the defendant.”
Id. at 12. The court explained that although it appreciated the
government’s desire to “preserve the best possible case against
the defendant for use at a time when, possibly, the tactical
situation is more advantageous” that is exactly the type of
strategy prohibited by the D.C. Circuit in Ammidown. Id.
Accordingly, the court discharged its obligation to protect the
defendant from what the court held, objectively, would be
10 harassment, and dismissed the counts at issue with prejudice.
Id.
Other judges in this district have similarly dismissed
cases with prejudice when the government’s strategy was to seek
dismissal without prejudice in order to bring the cases again
under “more advantageous circumstances.” See United States v.
Borges, 153 F. Supp. 3d 216, 220 (D.D.C. 2015). In Borges, the
district court dismissed the case with prejudice when the
government’s sole reason for seeking dismissal without prejudice
was a problem with a key witness and the government hoped that
the problem would be cured at some later date. Id. at 220–21.
The court refused to dismiss the case without prejudice, stating
that it had an “obligation to protect these defendants from the
uncertainty that the risk of a future prosecution entails
because it amounts, objectively, to harassment.” Id. at 221.
B. Application of Rule 48 to this Case
Mr. Pitts argues that the government’s request to dismiss
the indictment without prejudice is to gain a tactical
advantage--to gather additional information about the DNA swabs
on the recovered gun--and therefore impermissible. Def.’s Opp’n,
ECF No. 23 at 9. He also argues that allowing the government to
reindict and re-arrest him on an unknown date and for a third
time objectively amounts to harassment. Id. The government
responds that the government has not acted in bad faith, and
11 that the threat of re-prosecution alone is not harassment. See
generally Gov’t’s Reply, ECF No. 27.
D.C. Circuit precedent and persuasive authority in this
district supports dismissal with prejudice based on Mr. Pitts’
compelling circumstances. Like in Poindexter and Borges, the
government has moved to dismiss the indictment without prejudice
because of a defect in its case that has occurred through no
fault of the defendant. Specifically, the government failed to
test DNA swabs despite having possession of that evidence since
January 18, 2019, and despite receiving requests from the
defendant for that evidence. See Hr’g Tr., ECF No. 37, at 17:12–
19, Apr. 30, 2019 (defendant’s counsel explaining letter
requesting DNA results). Since time cannot be excluded under the
Act due to “lack of diligent preparation . . . on the part of
the attorney for the Government,” 18 U.S.C. § 3161(h)(7)(C), the
government lacks a basis for obtaining a continuance to obtain
the test results. The government concedes that the testing will
not be complete until July 2019, well after the expiration of
the Speedy Trial date of May 3, 2019. See Hr’g Tr., ECF No. 37
at 39:9–11. As in Poindexter, the government finds itself
dissatisfied with the state of its case, through no fault of the
defendant, and has moved to dismiss the case without prejudice
with hopes to salvage the prosecution once the DNA test results
are received. See Def. Mot, ECF No. 22 at 2 (stating “the most
12 appropriate course of action is to dismiss the pending
indictment without prejudice and await the test results”).
However, dismissing a case without prejudice only to bring
charges when the case is in a better posture for the government
is precisely the type of strategic use of Rule 48 that the D.C.
Circuit has proscribed. Ammidown, 497 F.2d at 620.
The government’s reliance on United States v. Karake is
misplaced. See United States v. Karake, No. 02-cr-00256 ESH,
2007 WL 8045732 (D.D.C. Feb. 7, 2007). In Karake, the government
moved to dismiss the indictment without prejudice after the
court granted a motion to suppress evidence. Id. The court made
it clear in Karake that, “but for [the] Court’s decision that
defendants’ statements were the product of coercion” the
government would have proceeded to trial. Id. The court also
relied on the fact that Karake was not a case in which “the
government could proceed to trial yet, for tactical reasons, has
sought to defer prosecution.” Id.
Here, the government has not moved to dismiss the
indictment due to an evidentiary ruling; indeed the government
conceded it would not bring any of the drug-related charges if
it reindicts Mr. Pitts. Hr’g Tr., ECF No. 37 at 58:5–17, Apr.
30, 2019. Critically, the government acknowledged that it “could
proceed to trial today” on the gun charge. Id. at 75:2–9.
Accordingly, the sole reason for the government’s motion is that
13 it has no basis to seek a continuance so that it can obtain the
DNA test results that it failed to timely request. Unlike
Karake, this is indeed the “case in which the government could
proceed to trial yet, for tactical reasons, has sought to defer
prosecution.” Karake, 2007 WL 8045732, at *2. Under these
circumstances, the Court concludes that the government seeks to
dismiss this case simply because it prefers to prosecute the
defendant “at a different time . . . deemed more favorable to
the prosecution.” Ammidown, 497 F.2d at 620. The fair
administration of justice does not countenance the use of such
ploys. See United States v. Fields, 475 F. Supp. 903, 908
(D.D.C. 1979)(“[T]he government is not free to indict, dismiss,
and reindict solely to achieve a more favorable prosecutorial
posture.”).
The government also relies on United States v. Florian, 765
F. Supp. 2d 32 (D.D.C. 2011), for the proposition that a
dismissal without prejudice is not tantamount to prosecutorial
harassment. See Gov’t Reply, ECF No. 27 at 7–8. The Court agrees
with the uncontroversial proposition that every dismissal
without prejudice does not amount to prosecutorial harassment,
but this argument misses the point. Mr. Pitts does not argue
that dismissal without prejudice is harassment in every case;
rather, he contends that dismissal without prejudice to gain a
tactical advantage and evade the requirements of the Speedy
14 Trial Act constitutes harassment on the facts presented here.
And, as the court in Florian recognized, “a prosecutor's attempt
to circumvent the requirements of the Speedy Trial Act through
the mechanism of a dismissal without prejudice may in some
circumstances justify denying leave to dismiss an indictment
without prejudice.” Id. at 37. 3
Dismissal with prejudice in this case is further supported
by the unusual, and indeed disturbing, facts surrounding Mr.
Pitts’ arrests. Mr. Pitts was arrested and detained twice based
on the same alleged criminal conduct. For over two weeks a
complaint in Superior Court and an indictment in this Court,
both filed by the same United States Attorney’s Office and based
on the same alleged criminal conduct, were pending against him.
Furthermore, the government was well aware that Mr. Pitts’
conditions of release required him to be home at certain hours
and that he was monitored electronically, and well aware of the
dates on which Mr. Pitts was required to make an appearance in
Superior Court. Rather than issue a summons, or notify his
attorney of the new indictment, the government arrested Mr.
3 The court in Florian also noted that nothing suggested that the government sought to subvert the goals of the Speedy Trial Act and that the defendants had previously consented to a continuance of their Speedy Trial rights “in order to review the extensive discovery produced by the [g]overnment.” 765 F. Supp. 2d at 37. In this case, Mr. Pitts made his intention to go to trial clear from the outset of this case and never waived a day of his Speedy Trial rights. 15 Pitts as he was fulfilling the obligations of his D.C. Superior
Court release conditions and reporting to the Pretrial Services
Agency. The government now seeks to potentially arrest Mr. Pitts
for a third time and conceded at the hearing that it would not
commit to alternative means of notifying Mr. Pitts of another
indictment. Hr’g Tr., ECF No 37 at 57:4–11, Apr. 30, 2019. No
person should be exposed to such outrageous government conduct
merely because the government seeks to strengthen its case--
which the government concedes it can take to trial at the
present time--into a better prosecutorial posture.
The ultimate decision regarding a dismissal with prejudice
depends upon the “purpose sought to be achieved by the
government and its effect on the accused.” Poindexter, 719 F.
Supp. at 10. As stated above the purpose sought to be achieved
is clearly tactical, to better position the government to try
this case, which is clearly prohibited under D.C. Circuit
precedent. See Ammidown, 497 F.2d at 621. As for the effect on
the accused, it is telling that the government has failed to
cite any authority in which a defendant was twice arrested and
detained, once while literally complying with conditions of
pretrial supervision arising out of the first arrest, and was
subject to jeopardy in two venues by the same prosecuting
authority for identical conduct. Under these circumstances, it
16 would be contrary to the manifest public interest 4 and amount to
objective harassment to leave the threat of arrest and
prosecution--for a third time--looming simply because the
government seeks to cure its self-inflicted defects in this
case. 5
III. Conclusion
The primary purpose of Rule 48 is to “protect[] a defendant
from harassment, through a prosecutor's charging, dismissing
without having placed a defendant in jeopardy, and commencing
another prosecution at a different time or place deemed more
favorable to the prosecution.” Ammidown, 497 F.2d at 620. By
requesting a third bite at the prosecutorial apple, with the
hope that it will have a better case at a later date, this is
exactly what the government seeks to do in this case. Therefore,
the indictment against Mr. Pitts is DISMISSED WITH PREJUDICE. An
appropriate order accompanies this Memorandum Opinion.
4 The Court also notes that to simply allow the government to effectively continue a case through dismissing the indictment without prejudice and then recharging a defendant, when a defendant has clearly and repeatedly demanded to go to trial, would make a mockery of both the Speedy Trial Act and any fair notion of criminal justice. 5 Because there has not been a Speedy Trial Act violation in this
case, the Court does not consider the defendant’s argument that the Speedy Trial Act requires dismissal with prejudice. Moreover, having found that Rule 48 requires dismissal with prejudice, the Court does not reach Mr. Pitts’ constitutional arguments. See Def.’s Opp’n, ECF No. 23 (arguing violations of Due Process and Sixth Amendment Right to Speedy Trial). 17 SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge May 14, 2019