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of the leave-of-court requirement in Rule 48(a) is to enable a court to inquire into whether the
dismissal should be with prejudice”).
The Second Circuit has thus far declined to “rule out discretionary dismissals with
prejudice” in similar contexts. Hilbert v. Dooling, 476 F.2d 355, 361 (2d Cir. 1973); see also id.
at 363 (Friendly, C.J., dissenting) (stressing “the district judge’s discretion” under Rule 48(b) “to
dismiss either with or without prejudice as he deemed appropriate”). But the “Circuit has not
specifically addressed” under what circumstances, if any, a court may dismiss an indictment with
prejudice notwithstanding the government’s request that dismissal be without prejudice. United
States v. Hernandez-Hernandez, No. 18 Crim. 30, 2018 WL 4765129, at *2 (W.D.N.Y. Sept. 13,
2018), report and recommendation adopted, 2018 WL 4762255 (W.D.N.Y. Oct. 2, 2018).
In exercising their discretion to dismiss with prejudice under Rule 48(a), courts have
generally looked to the same principles that motivate the “leave of court” requirement. In district
courts for the District of Columbia, where Rule 48(a) is “routinely applied . . . to consider dismissal
with prejudice,” courts “take into account (1) the purpose of the government’s dismissal, (2) the
presence or absence of good faith, and (3) the objective effect that dismissal without prejudice
would have on the defendant.” United States v. Madzarac, 678 F. Supp. 3d 42, 48 (D.D.C. 2023).
Courts in this District have had less occasion to consider the question, but they have tended to look
to whether there is a risk of prosecutorial harassment from re-charging of the offense(s) or whether
there is evidence of bad faith on the part of the prosecution. See, e.g., Doody, 2002 WL 562644,
at *2 (explaining that “[c]ourts dismiss cases under Rule 48(a) with prejudice or deny such motions
19 (D.D.C. 2015); Poindexter, 719 F. Supp. at 10-12; United States v. Angilau, No. 08 Crim. 431,
2012 WL 346446, at *14 (D. Utah Feb. 1, 2012), aff’d in part, appeal dismissed in part, 717 F.3d
781 (10th Cir. 2013); United States v. Wecht, No. 06 Crim. 26, 2008 WL 65605, at *5-6 (W.D. Pa.
Jan. 4, 2008); Government of Virgin Islands ex rel. Robinson v. Schneider, 893 F. Supp. 490, 498
(D.V.I. 1995); United States v. Rossoff, 806 F. Supp. 200, 202-03 (C.D. Ill. 1992); United States
v. Fields, 475 F. Supp. 903, 904, 908 (D.D.C. 1979).
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