Opinion
CR-03-1167-PHX-DGC.
February 27, 2006
ORDER
Pending before the Court are the Government's motion to dismiss counts and amended motion to dismiss counts filed on February 24, 2006. Docs. ##1276, 1279. In its motion to dismiss counts, the Government moves the Court to dismiss without prejudice all of the counts alleged against Defendants Donald Smith, Kevin Augustiniak, Craig Kelly, Henry Watkins, and Robert Rienstra, and counts 1 and 2 against Defendant Rudy Jaime. Id. at 1. The Government states that a dismissal of these counts without prejudice would be in the interests of justice at this time. Id.
Defendant Jaime is charged in counts 1-2, 31, and 34-39 of the second superseding indictment. Doc. #541.
At Defendants' request, the Court held a hearing on the motion to dismiss counts the day it was filed. Defendant Augustiniak was present at the hearing. All parties (other than Defendant George Walters, who currently is a fugitive), were represented by counsel, either by their own attorney or by an attorney covering the hearing for them.
Defendant Smith stated at the hearing that he does not object to the Government's motion to dismiss counts. The Court finds that the dismissal without prejudice of the counts alleged against Defendant Smith is not clearly contrary to the pubic interest. The Court accordingly will grant the Government's motion to dismiss counts with respect to Defendant Smith pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure. See Fed.R.Crim.P. 48(a) ("The government may, with leave of court, dismiss an indictment, information, or complaint."); United States v. Wallace, 848 F.2d 1464, 1468-69 (9th Cir. 1988) (holding that the district court did not err in granting the government's motion to dismiss indictment under Rule 48(a) where counsel for the defendant consented to the motion and the dismissal was not clearly contrary to the public interest); United States v. Gonzalez, 58 F.3d 459, 461-64 (9th Cir. 1995) (reversing the denial of an unopposed motion to dismiss count under Rule 48(a) because the government's reasons for dismissing the count were not "`clearly contrary to manifest public interest'") (quoting United States v. Weber, 721 F.2d 266, 268 (9th Cir. 1984)).
Counsel for Defendant Smith shall discuss the return of his client's property with counsel for the Government. The parties may raise the issue with the Court if they are unable to resolve the issue.
Defendants Augustiniak, Kelly, Watkins, and Rienstra objected at the hearing to the Government's motion to dismiss counts on the ground that the counts alleged against them should be dismissed with prejudice. Defendants argued that pending a ruling on the motion, the Government should be required to comply with the February 24, 2006 disclosure deadline. Defendants requested an opportunity to brief the dismissal and disclosure issues discussed at the hearing.
The Government argued at the hearing that the dismissal of counts without prejudice was appropriate. The Government further argued that the February 24, 2006 disclosure deadline should be stayed pending a ruling on its motion to dismiss counts.
The Court permitted the parties to file briefs regarding dismissal and disclosure issues by February 27, 2006. The Court stated that it would set a hearing for February 28, 2006 at 3:00 p.m. The Court further stated that it would extend the February 24, 2006 disclosure deadline to March 3, 2006.
Following the hearing, the Government filed an amended motion to dismiss counts. Doc. #1279. The Government moves to dismiss with prejudice all of the counts alleged against Defendants Kelly, Watkins, and Rienstra. Id. at 1. The Government states that these Defendants have no objection to the amended motion to dismiss counts and have stipulated that the Government has no further obligation to provide additional discovery in this case. Id.
The Court finds that the dismissal with prejudice of the counts alleged against Defendants Kelly, Watkins, and Rienstra is not clearly contrary to the public interest. The Court accordingly will grant the amended motion to dismiss counts pursuant to Rule 48(a). See Fed.R.Crim.P. 48(a); Wallace, 848 F.2d at 1468-69; Gonzalez, 58 F.3d at 461-64.
IT IS ORDERED:
1. The Government's motion to dismiss counts (Doc. #1276) is granted with respect to Defendant Donald Smith. The counts alleged against Defendant Smith are dismissed without prejudice. The motion to dismiss counts is denied as moot with respect to Defendants Craig Kelly, Henry Watkins, and Robert Rienstra and is under advisement with respect to Defendants Rudy Jaime and Kevin Augustiniak.
2. The Government and Defendant Augustiniak shall file briefs regarding the dismissal and disclosure issues discussed at the February 24, 2006 hearing by February 27, 2006.
3. A hearing will be held on February 28, 2006 at 3:00 p.m.
4. The February 24, 2006 disclosure deadline is extended to March 3, 2006.
5. The Government's amended motion to dismiss counts (Doc. #1279) is granted. The counts alleged against Defendants Kelly, Watkins, and Rienstra are dismissed with prejudice.
6. The motions to sever filed by Defendants Kelly, Watkins, and Rienstra (Docs. ##952, 961, 991) are denied as moot.
7. Defendant Smith's motion for bill of particulars (Doc. #984) is denied as moot.
8. A change of plea hearing for Defendant Jaime has been scheduled for March 7, 2006, at 3:00 p.m. The pending motion to dismiss counts with respect to Defendant Jaime will be discussed at that time.