United States v. Robert Hamm, United States of America v. Willis Judge Butler, Les Wallick Fuller, Dayton Bud Evans, Jr. And Larry Dale Washington

659 F.2d 624, 1981 U.S. App. LEXIS 16762

Opinions

AINSWORTH, Circuit Judge:

This case presents a constitutionally important conflict between a trial judge and a government prosecutor over the right of the Government to dismiss indictments against defendants who, after having pleaded guilty to criminal charges, cooperated with the Government in the prosecution of the leaders of a large drug-smuggling conspiracy.

The appellants, Robert Hamm, Willis Butler, Les Fuller, Dayton Evans, Jr., and Larry Washington, appeal from the district court’s denial of the Government’s motion to dismiss the indictments against them, and the court’s denial of their motions to withdraw their guilty pleas. The Department of Justice and the local United States Attorney, who prosecuted the cases, join with the appellants in this appeal to set aside the district court’s ruling. A panel of this court held that the district court erred in denying the Government’s motion to dismiss the indictments, 638 F.2d 823 (5th Cir. 1981). The court then voted to rehear the case en banc, 644 F.2d 354 (5th Cir. 1981), thus vacating the panel opinion. See Fifth Circuit Local Rule 17. On rehearing en banc, we again find that the district court should have granted the United States Attorney’s motion to dismiss the indictments and accordingly reverse.

Facts and Procedural History

Appellants Fuller, Washington, Butler and Evans and ten others were named in a multicount indictment on January 16, 1979, alleging their involvement in the shipment of a large quantity of marijuana from Colombia to the United States.¹ Appellant Hamm was indicted on May 1, 1979, for his participation in several large marijuana shipments.² Pursuant to plea-bargaining agreements with the United States Attorney, each of the appellants pleaded guilty to one count and the Government dismissed all other counts in return for their cooperation in the prosecution of the leaders of the drug-smuggling conspiracy.³ At the time of the plea, no explicit agreements existed as to sentencing.⁴ The district judge accepted the guilty pleas and postponed sentencing to assure the appellants’ cooperation. After the appellants pleaded guilty, but several months before they were brought before the judge for sentencing, the Government agreed to modify the plea-bargaining agreements because of the extraordinary usefulness of the information and testimony the appellants had provided in the United States Attorney’s continuing investigation and prosecutions as well as the great personal risk the appellants took in making their revelations.⁵ The prosecutor and the defendants entered into agreements under Rule 11(e), Federal Rules of Criminal Procedure, “subject to the approval of the sentencing judge” limiting the defendants’ sentences to a maximum of two years’ imprisonment for Hamm and a maximum of six months for the other appellants.⁶

As we noted in the original panel opinion, “[t]here is considerable evidence in the record to support the appellants’ contentions that the prosecutor led them to believe that the judge had agreed to follow the sentencing recommendations.” 638 F.2d at 825.⁷ The trial judge categorically denied that he was ever informed of the agreement and the prosecutor did not contest that denial in open court. Obviously we accept without reservation the district judge’s denial. It thus seems possible that in the prosecutor’s zeal to convict the leaders of this conspiracy with the aid of the cooperating defendants, he may have misled at least one of the defense attorneys.⁸

On February 29, 1980, appellant Fuller was brought before the court for sentencing. The trial judge told the prosecutor and the. defendant that he had not been informed of the modified plea-bargaining agreement and would not be bound by it.⁹ The court then granted Fuller’s motion for leave to withdraw his guilty plea. On March 4 and 5, 1980, the Government moved to dismiss the indictments against all of the cooperating defendants under Rule 48(a) of the Federal Rules of Criminal Procedure. The district judge denied the Government’s motion, refused to permit the appellants to withdraw their pleas,¹⁰ and sentenced them to terms of imprisonment.¹¹

The Meaning of the Leave of Court Requirement

Rule 48(a) of the Federal Rules of Criminal Procedure provides:

Dismissal.

(a) By Attorney for Government. The Attorney General or the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant.

Our determination of the meaning of the “leave of court” requirement is essential to the, proper disposition of this appeal. In deciding in what situations that leave can be denied, we must balance the constitutional duty of government prosecutors, as members of the Executive Branch, to “take care that the laws [are] faithfully executed” ¹² with the constitutional powers of the federal courts, most particularly the sentencing power of trial judges.¹³

We hold that the “leave of court” requirement of Rule 48(a) is primarily intended to protect the defendant against prosecutorial harassment.¹⁴ The district court may not deny a government motion to dismiss a prosecution, consented to by the defendant, except in those extraordinary cases where it appears the prosecutor is motivated by considerations clearly contrary to the manifest public interest.¹⁵

In United States v. Cowan, 524 F.2d 504 (5th Cir. 1975), cert. denied sub nom. Woodruff v. United States, 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 795 (1976), this court interpreted Rule 48(a) to accommodate the powers and duties of the two branches:

We think [Rule 48(a)] should and can be construed to preserve the essential judicial function of protecting the public interest in the evenhanded administration of criminal justice without encroaching on the primary duty of the Executive to take care that the laws are faithfully executed. The resulting balance of power is precisely what the Framers intended... . The Executive remains the abso lute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated. The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest. In this way, the essential function of each branch is synchronized to achieve a balance that serves both practical and constitutional values.

524 F.2d at 513. Thus, this court limited the discretion of the trial judge to deny leave to dismiss an indictment to cases where dismissal would be “clearly contrary to manifest public interest.”¹⁶

The Supreme Court examined the leave of court requirement in Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977). Reversing an en banc decision of this court,¹⁷ the Supreme Court held that if the prosecutor’s motion to dismiss was not “tainted with impropriety,” and was not “motivated by considerations . . . ‘clearly contrary to manifest public interest,’ ” the trial court could not properly deny the prosecutor’s motion. 434 U.S. at 30, 98 S.Ct. at 85-86 (citing Cowan). The Court noted that the principal object of the leave of court requirement was apparently to protect a defendant from prosecutorial harassment.¹⁸ The Court did not decide whether a trial court has discretion to deny a prosecutor’s motion to dismiss which has the consent of the defendant. 434 U.S. at 29 n.15, 98 S.Ct. at 85 n.15. The Court did not reach that question in Rinaldi, however, since even if it assumed that the trial court could deny the prosecutor’s motion when it disserved the public interest, the prosecutor’s actions in the case could not be fairly characterized as such a disservice. Id.

We continue to hold that even when the defendant consents to the motion to dismiss, the trial court, in extremely limited circumstances in extraordinary cases, may deny the motion when the prosecutor’s actions clearly indicate a “betrayal of the public interest.” United States v. Cowan, supra, 524 F.2d at 514. As the Supreme Court indicated in Rinaldi, the trial judge must look to the motivation of the prosecutor at the time of the decision to dismiss. As Judge Hill pointed out in his dissent to this court’s en banc opinion which was re- versed in Rinaldi, “if it should appear that the prosecutor is motivated to dismiss because he has accepted a bribe or because he desires to attend a social event instead of attend upon the court in the trial of the case or because he personally dislikes the victim of the crime, the court should withhold leave.”¹⁹ In re Washington, 544 F.2d 203, 212-13 (5th Cir. 1976) (Hill, J., dissenting). Unless the court finds that the prosecutor is clearly motivated by considerations other than his assessment of the public interest, it must grant the motion to dismiss.

Application of the Leave of Court Requirement

In this case, we find no evidence that the prosecutor was motivated by any considerations other than his evaluation of the public interest. The appellants were the principal government informants and witnesses in the prosecutions of the leaders of a large drug-smuggling conspiracy. The service they provided to the Government greatly exceeded that expected, or required, by the initial plea-bargaining agreement. As a result of their cooperation, the lives of at least two of the appellants were threatened and the prosecutor expressed considerable concern for the appellants’ safety in prison.²⁰ The prosecutor also indicated that the continued cooperation of the appellants would be needed in the prosecution of additional leaders of the drug-smuggling conspiracy:

I would like to call the Court’s attention, in addition, that these smuggling cases that are referred to are continuing cases, and as Your Honor was well aware, from sitting through the trial, that there are other Defendants as yet unidentified. Some Defendants, we have some identification on, and it is anticipated that other Indictments will be returned and the cooperation of these witnesses will again be necessary.

Record on Appeal (80-1331), Vol. 7 at 17-18. He later made the same point even more emphatically:

ur most important consideration, is we must look to other prosecutions down the line, and . . . there are numerous persons that have not been identified . .. that must be ... convicted and sentenced.

And we also feel that is in the interest of the people of the District to get these people, these targets, these kingpins, off of the streets

t is the position of the United States Attorney’s Office, particularly me, as the Chief Investigator for this case, that not to grant this dismissal will effectively stop our investigation, and will have the effect of protecting the kingpins involved in marijuana smuggling in this [sic] United States.

Id. at 24, 25 & 27.

When it became clear to the United States Attorney that he could not assure the appellants that they would receive favorable sentences, he concluded, after “reevaluatpng] the magnitude of the information [given by the appellants] and following actions by unknown persons which created concerns for the safety of the witnesses,” that the public interest would best be served by dismissing the indictments against the appellants.²¹ It must be emphasized that this is not a case in which the prosecutor entered into any agreement with the appellants to dismiss the charges if the judge did not abide by the sentencing agreement or presented the judge with the alternative of either going along with the sentencing agreement or the prosecutor would dismiss the charges. Nothing to that effect has been said or implied. Instead, this is a case in which the Government, consideration of the appellants’ extraordinary past cooperation, and in order to assure their continued cooperation, to protect their lives and to set a positive example for others who may decide to cooperate, decided that it would best serve the public interest to dismiss the indictments against the appellants.²² Neither this court on appeal nor the trial court may properly reassess the prosecutor’s evaluation of the public interest. As long as it is not apparent that the prosecutor was motivated by considerations clearly contrary to the public interest, his motion must be granted. in

In finding that dismissal would not be in the public interest, the district judge stated that “[i]f the public interest would have been served by the dismissal of the indictment against these defendants, the United States Attorney’s Office would have moved for dismissal long ago.” 486 F.Supp. at 1294. As we point out above, this contention is refuted by Rinaldi, in which the prosecutor’s motion for dismissal was at an even later stage than in the present case.

The trial court also held that the prosecutor did not present sufficient factual information to show that the public interest would be served, and that “nothing more than” information about prior cooperation would not support a finding that dismissal would be in the public interest. We disagree. The district court appears to have placed the burden on the prosecutor to show that dismissal itself would be in the public interest. The language of this court in Cowan and the Supreme Court in Rinaldi makes it clear that the motion should be granted unless the trial court has an affirmative reason to believe that the dismissal motion was motivated by considerations contrary to the public interest. As the district judge acknowledged, the prosecutor is the first and presumptively the best judge of where the public interest lies. The trial judge cannot merely substitute his judgment for that of the prosecutor.²³

We also disagree with the district judge’s notion that the public interest can never be served by dismissing an indictment because of the defendants’ past cooperation. The decision to dismiss may be the prosecutor’s way of letting future conspiracy defendants know of the possible advantages of cooperation with the Government. It may very well be crucial to the prosecutor’s credibility in future cases involving informants or defendants who testify in return for lenient treatment. Moreover, as we have explained above, the prosecutor was motivated not only by a desire to reward past cooperation but also by the need to assure the appellants’ future cooperation and to protect their lives.²⁴

Since we decide that the trial court should have granted the prosecutor’s motion to dismiss the indictments, we do not reach the issue of whether he should have permitted the appellants to withdraw their guilty pleas after he informed them that he would not be bound by the modified plea-bargaining agreement. With the notable exception of cases where the prosecutor and the defendant enter into the kind of agreement authorized by Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure, motions to withdraw guilty pleas are generally within the discretion of the trial judge. United States v. Morrow, 537 F.2d 120, 146 (5th Cir. 1976), cert. denied sub nom. Brennan v. United States, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977). However, leave to withdraw a guilty plea should be freely granted if there appears to be a reason to justify withdrawal. United States v. Pressley, 602 F.2d 709, 711 (5th Cir. 1979). To determine whether the trial court should have granted the motion to withdraw we would thus have to first decide whether the modified plea-bargaining agreement was a Rule 11(e)(1)(C) agreement, and, if it was not, then decide whether the court abused its discretion in denying the motion. That complex inquiry would be of no practical value in this case. The Government, through the local United States Attorney and through the Chief of the Appellate Section of the Criminal Division of the Department of Justice, indicated at oral argument and in its briefs that if the appellants were permitted to withdraw their guilty pleas the Government would not proceed with the prosecution. Thus there is no point in remanding these cases to the trial judge with instructions to let the defendants withdraw their guilty pleas. As Judge Weinfeld has noted, the trial court cannot compel the prosecutor to proceed with the prosecution; after the charges lie dormant for a while, the defendant would have a right to dismissal under Rule 48(b), which provides for dismissal “if there is unnecessary delay in bringing a defendant to trial.” United States v. Greater Blouse, Skirt & Neckwear Contractors Association, 228 F.Supp. 483, 489-90 (S.D.N.Y.1964). Under the circumstances, direct dismissal of the indictments is proper. Otherwise we would be using a roundabout method to accomplish what we now accomplish more simply: dismissal of the indictment.²⁵

Conclusion

In light of the representations made by the Government in support of its motion to dismiss, we cannot agree with the district judge that the motion to dismiss the indictments was motivated by considerations clearly contrary to the manifest public interest. As Cowan and Rinaldi point out, and as the district judge acknowledged, the determination of the public interest in the first instance is for the prosecutor to make. We are not in a position to second-guess his determination, and even if we were, under the facts of this case we could not say that the prosecutor mistakenly gauged the public interest when he decided that the past and future cooperation of the appellants warranted dismissal of the indictments against them. We therefore reverse, and remand with directions to sustain the Government’s motion to dismiss the indictments against all of the appellants.²⁶

REVERSED AND REMANDED.

Footnotes

1

. Fuller, Washington, Butler and Evans were each indicted on one count of conspiracy to violate the drug laws under 21 U.S.C. §§ 846 & 963 and one count of possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). In addition, Fuller and Evans were indicted for importation of marijuana into the United States in violation of 21 U.S.C. § 841(a), and Fuller was indicted for three firearm counts under 18 U.S.C. § 924(b) and 26 U.S.C. §§ 5861(d) & 5871.

2

. The indictment of May 1, 1979, listed Hamm as “BOB (LAST NAME UNKNOWN).” He was formally named in a superseding indictment on July 10, 1979, and charged with one count of conspiracy to violate the racketeering laws under 18 U.S.C. § 1962(d) and two counts of possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

3

. The original plea-bargaining agreements were in letter form. The text of the agreement with Hamm is as follows:

This letter will acknowledge our agreement regarding the above named client of your firm. In consideration for a full and complete statement from your client, his testimony at trial of the defendants of the above styled and referenced cause, and a plea of guilty to possession of marihuana with intent to distribute, Title 21, United States Code, Section 841(a)(1), the government agrees to dismiss the remaining counts of the indictment and to not prosecute your client for criminal offenses related to the government in his statement which arise from or are a result of his drug related activity.

The government further agrees to take no position upon any request by the defense for leniency regarding the punishment limits imposed by 21 U.S.C. § 841(a)(1) and that the United States Attorney’s Office will urge imprisonment in a suitable low security facility, if the Court imposes imprisonment.

It is specifically agreed that the statement of your client will include responses to all questions asked by Drug Enforcement Administration agents and any and all information concerning drug transactions or persons involved, whether solicited or unsolicited.

It is specifically understood that the making of any known false statements or the knowing omission of material facts shall void this agreement.

The text of the agreement with the other defendants, Butler, Evans, Fuller and Washington, is as follows:

This letter will acknowledge our agreement regarding the above referenced client of your firm. In consideration for statements, testimony and a plea of guilty to conspiracy to possess marijuana with intent to distribute, 21 U.S.C. 846, the Government agrees not to prosecute any additional charges arising from the transactions of November 29, 1978 in the Eastern District of Texas or other transactions, divulged during questioning, involving drug transactions.

All parties specifically agree that the statement of the Defendant will include responses to all questions asked by Government agents and any and all information concerning drug transactions or persons involved, whether solicited or unsolicited.

It is specifically understood that the making of any known false statements or the omission of inculpating information shall void this agreement.

It is further agreed that any cooperation received from your client will be noted, in writing, to the United States Probation Department, Eastern District of Texas, prior to the sentencing of your client.

4

. Apparently the appellants believed that an agreement would later be negotiated as to sentence or sentence recommendation. The communicatiion breakdown in this case was compounded by the prosecutor’s requirement that the appellants keep their agreement to cooperate secret to avoid harm to the appellants and to prevent warning the still unindicted leaders of the conspiracy. Record on Appeal (80-1331), Vol. 4 at 110-11, Vol. 7 at 48-53.

The sequence of events in regard to one defendant, Larry Washington, is set out in a stipulation signed by the Assistant United States Attorney who prosecuted the case. Record on Appeal (80-1331), Vol. 4 at 110-20.

5

. Appellants Hamm and Butler were apparently threatened during the trial. The concern for the safety of the appellants was so great that the court installed a metal detector to screen persons entering the courtroom. Record on Appeal (80-1331), Vol. 7 at 20, 23-24.

6

. The text of the modified agreement v/ith all of the defendants except Hamm is as follows:

This letter will acknowledge our meeting and agreement of Saturday, June 2, 1979, regarding your client, named above.

In consideration for the continued cooperation of your client and his truthful testimony at trial, the United States agrees to enter into a Rule 11(e) Agreement with your client re garding punishment, subject to the approval of the sentencing Judge, that your client receive no more than five years, with not more than six months imprisonment, to serve. Further, the United States will extend every effort to insure the imprisonment of your client in a suitable minimum security prison where all necessary security for their personal safety may be assured.

Thank you for your usual professional attention to these matters.

The agreement with Hamm is not in the record. It apparently was identical to the agreement with the other defendants except that it provided for a maximum two years of imprisonment. According to the statement at the time of sentencing and the briefs of the Assistant United States Attorney and the attorneys for the defendants, by referring to “a Rule 11(e) Agreement,” the parties intended to enter into the type of agreement authorized by Fed.R.Crim.P. 11(e)(1)(C). Under that rule, the prosecutor agrees to a specific sentence. If the court does not accept that specific sentence, the defendant must be permitted to withdraw his guilty plea. Fed.R.Crim.P. 11(e)(4).

7

. The original brief filed by the United States and signed by William C. Bryson, Chief of the Appellate Section of the Criminal Division of the Department of Justice, acknowledged that “counsel for appellants were repeatedly assured by the Assistant United States Attorney that the amended plea agreement had been brought to the attention of the district court, and that the district court had approved the agreement.” The record reference cited in support of this statement is to a stipulation signed by the Assistant United States Attorney in which he states that he had told the attorney for Larry Washington several times that the judge had been informed and had agreed to the modified plea-bargaining agreement. Record on Appeal (80-1331), Vol. 4 at 110-20. The stipulation was signed on March 14, 1980, one week after the prosecutor’s motion to dismiss was denied and the defendants were sentenced.

8

. In the discussion between the trial judge and the various attorneys at the time of sentencing, only the attorney for Larry Washington mentioned that the prosecutor had told him that the judge had approved the agreement. It does not appear that any similar assurances were given to the attorney for Robert Hamm, and it is unclear whether they were given to the attorneys for the other defendants.

9

. It may be that the trial judge indirectly learned about the sentencing agreements when the appellants were cross-examined at the trials of the conspiracy leaders. Defense counsel in those cases questioned the appellants about their agreements with the Government in an effort to impeach their testimony; some of these trials were before the same district judge who sentenced the appellants. See Record on Appeal (80-1331), Vol. 7 at 37-38, 53-54.

10

. Since the district judge had granted Fuller’s motion to withdraw his guilty plea on February 29, Fuller was not before the court when the others were sentenced on March 7. The district judge ordered Fuller to appear on March 10, however, and at that time the judge, in effect, revoked his permission to withdraw the plea and sentenced Fuller. The judge stated that he was “misled” on February 29 into believing that the sentencing agreement existed prior to the guilty plea and that he subsequently learned that the sentence agreement was not negotiated until after the plea. “So, the Court, having been misled in this regard, we of course, will not permit you to withdraw your plea of ‘Guilty.’ ” Record on Appeal (80-1331), Vol. 8 at 4-7. Nothing in the transcript of February 29 supports the impression that defense counsel intentionally misled the court, however. In fact, Fuller filed a Notice of Plea Agreement with the court on February 29 before the sen- fencing proceeding. Attached to that notice was a letter of agreement from the United States Attorney to Fuller’s attorney which clearly indicated that the sentencing agreement was negotiated on June 2, 1979, several months after the guilty pleas. Record on Appeal (80-1331), Vol. 3 at 73-74.

On March 24, 1980, the district judge issued a memorandum opinion “to expand and clarify [his] earlier decision” to deny the motion to dismiss and the motions to withdraw the guilty pleas. That opinion is reported at 486 F.Supp. 1285.

11

. Hamm, Butler, Evans and Washington were each sentenced to two years’ imprisonment, three years’ special parole and a $5,000 fine. Fuller received two years in prison, but with only six months to be served (the remainder suspended), plus two years’ special parole and a $1,000 fine. The modified plea-bargaining agreement envisioned a maximum of six months’ imprisonment for all except Hamm, who was to receive a maximum of two years.

12

. U.S.Const. art. II, § 3.

13

. In balancing the rights and powers of the Executive Branch with those of the Judiciary, we must keep in mind that the exercise of prosecutorial discretion is to be given great deference by the courts. As Chief Justice (then Circuit Judge) Burger said in Newman v. United States, 382 F.2d 479, 480 (D.C.Cir.1967), “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.” The Chief Justice later noted that “[t]he President has abundant supervisory and disciplinary powers — including summary dismissal — to deal with misconduct of his subordinates; it is not the function of the judiciary to review the exercise of executive discretion . . . .” Id. at 482.

14

. Rinaldi v. United States, 434 U.S. 22, 29 n.16, 98 S.Ct. 81, 85 n.15, 54 L.Ed.2d 207 (1977); United States v. Cox, 342 F.2d 167, 171 (5th Cir.) (en banc), cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); Woodring v. United States, 311 F.2d 417, 424 (8th Cir.), cert. denied, 373 U.S. 913, 83 S.Ct. 1304, 10 L.Ed.2d 414 (1963).

15

. Rinaldi v. United States, supra, 434 U.S. at 30, 98 S.Ct. at 85; United States v. Cowan, 524 F.2d 504 (5th Cir. 1975), cert. denied sub nom. Woodruff v. United States, 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 795 (1976); United States v. Ammidown, 497 F.2d 615 (D.C.Cir.1973).

16

. The district judge correctly pointed out in his opinion that the present case can be readily distinguished from Cowan where the United States Attorney sought to dismiss the indictment before trial. In this case the prosecutor moved to dismiss the indictment after the defendants had been found guilty. In this regard the district court stated:

The Court, of course, recognizes that the United States attorney is the “best judge of whether a pending prosecution should be terminated.” ... Here, however, unlike the situation in Cowan where the court needed to appoint a special prosecutor to try the indictment, the Court has already found the defendants guilty of the crime charged in the indictment and the prosecutorial function is only minimally involved in the process of criminal justice. Accordingly, when only sentencing of the defendants remains, it is appropriate for the Court to pay less deference to the decision of the United States Attorney than it normally would.

486 F.Supp. at 1294 (citations omitted). This analysis, however, does not give effect to the holding of the Supreme Court in Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977). The Supreme Court, citing Cowan, held that the district court could not deny leave to dismiss an indictment unless “the Government’s decision to terminate [the] prosecution clearly disserved the public interest.” 434 U.S. at 29, 98 S.Ct. at 85. The petitioner in Rinaldi had already been tried, convicted and sentenced to imprisonment. It is thus clear that the standard set out in Cowan and adopted in Rinaldi applies regardless of the stage of prosecution at which the Government moves to dismiss the indictment.

17

. In re Washington, 544 F.2d 203 (5th Cir. 1976).

18

. The history of Rule 48(a) does not shed any light on the reasons for adding the leave of court requirement. A preliminary draft of the Rule, containing no leave of court requirement, was submitted to the Supreme Court for comment, and the Court questioned whether a prosecutor should be given the unqualified right to dismiss an indictment without leave of court. 6 L. Orfield, Criminal Procedure Under the Federal Rules § 48.17 (1967). The Rule as later submitted to the Supreme Court still did not require leave of court, and the Court modified the Rule adding the requirement without comment. Id. at § 48.19.

19

. Judge Hill’s list of examples is merely illustrative of the kinds of betrayal of the public interest which would warrant denial of a motion to dismiss; there certainly may be other situations in which the prosecutor’s motion, motivated by considerations other than the interest of the public, should be denied.

20

. Record on Appeal (80-1331), Vol. 7 at 20, 23-24.

21

. Memorandum in Support of Government’s Motion to Dismiss, p. 2.

22

. The trial judge noted that the prosecutor felt an obligation to assist the appellants in light of their cooperation:

[The Assistant United States Attorney] has worked hard on the smuggling cases, and he has prosecuted them well, and we feel and we think he feels an obligation to the Defendants who made good in giving their testimony, and he feels that he should make a stand in their behalf in regard to the recommendations.

Record on Appeal (80-1315), Vol. 4 at 12. The judge later complimented the prosecutor on his integrity and candor in revealing the details and timing of the modified plea-bargaining agreement:

The Court is pleased that the evidence took this turn, Mr. Baugh, because it causes the Court to have more confidence in your integrity as a prosecutor, and I think it is commendable that you have stated what you have.

Id. at 65-66.

23

. The district judge cites United States v. Ammidown, 497 F.2d 615 (D.C.Cir.1973) for the proposition that the prosecutor must present information in support of its motion to dismiss. Although we agree with the District of Columbia Circuit that the prosecutor usually should supply more than “a mere conclusory interest,” we find that sufficient reasons were given by the prosecutor in the present case. If Ammidown is read to place the burden on the prosecutor to prove that dismissal is in the public interest, however, then it is contrary to our rule enunciated in Cowan and to the Supreme Court’s holding in Rinaldi.

It is perhaps significant that preliminary drafts of Rule 48(a) included a requirement that the prosecutor provide a statement of his reasons for seeking dismissal. This requirement was sharply criticized by several prosecutors and judges and was deleted by the Supreme Court. See 6 Orfield, supra, at §§ 48.18-, 19.

24

. We do not condone any misrepresentations made by the prosecutor to the attorney for Washington or any of the other attorneys in regard to whether the judge had been informed of or had agreed to the modified plea agreement. However, we do not believe that those actions reflect upon the motivation of the United States in seeking dismissal. In Rinaldi, the Court of Appeals held that “the prosecutor’s bad faith justified the District Court’s refusal to set aside [the] defendant’s conviction.” 434 U.S. at 26, 98 S.Ct. at 83. The “bad faith" in that case was a misrepresentation by the prosecutor during the trial that he had been instructed by the Justice Department to maintain the prosecution even though the defendant had already been convicted in state court. The Supreme Court, in reversing the Court of Appeals, noted that “[t]he salient issue, however, is 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 prosecution were similarly tainted with impropriety.” 434 U.S. at 30, 98 S.Ct. at 85. Here, too, we must look at the Government’s efforts to terminate the prosecution, and we find those efforts untainted with impropriety. In its briefs before the original panel of this court, the Justice Department acknowledged that the Assistant United States Attorney may have misled the defense attorneys. (Of course, there is no allegation that the prosecutor in any manner attempted to mislead the court.) The Justice Department nevertheless concluded that dismissal of the indictments was in the public interest.

25

. A committee of Beaumont and Port Arthur, Texas, attorneys, as amicus curiae, argue that the Supreme Court’s holding in Rinaldi should be limited to situations where the Justice Department’s Petite policy or another long-standing policy is the motivation for the motion to dismiss. Nothing in the Supreme Court’s opinion supports the notion that its holding is so limited. In discussing the application of the Petite policy to the case, the Court was merely determining whether the prosecutor’s actions were contrary to the public interest.

26

. Counsel for appellant Fuller brought to the attention of the original panel of this court that Fuller was killed in an airplane accident subsequent to the filing of the notice of appeal in this case. We have since been informed by the Government that appellant Butler has died of gunshot wounds. When a criminal appellant dies after filing a notice of appeal of his conviction, the long-standing rule of this court is that the indictment be dismissed. United States v. Jones, 498 F.2d 673 (5th Cir. 1974); Daniel v. United States, 268 F.2d 849 (5th Cir. 1959). Therefore, even if we had not ordered the district court to dismiss the indictment as to the other appellants, we would have to do so as to Fuller and Butler. Any fine paid by Fuller, Butler, or any of the other appellants must, of course, be returned.