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”),

. 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.

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.

In another, the officers found a credit card in Mr.

Pitts’ name.

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.

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

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.

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.

Mr. Pitts declined to waive his rights under the Act

and the April 23, 2019 trial date remained calendared.

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.

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.”

. 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.”

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.

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.

at 77:20–78:4.

II. Discussion

A. Federal Rule of Criminal Procedure 48

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,

(D.C. Cir. 1973); see also Rinaldi

v. United States,

, 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,

(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.”

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.

. 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.”

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.”

.

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,

(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.

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.”

. 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.

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.”

at 11 (citing United States v.

Salinas,

(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,

(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.

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.”

.

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.

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,”

(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,

.

The government’s reliance on United States v. Karake is

misplaced. See United States v. Karake, No. 02-cr-00256 ESH,

(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.

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.

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.”

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.

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,

, 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,

. The fair

administration of justice does not countenance the use of such

ploys. See United States v. Fields,

(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,

(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.”

. 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.”

. 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,

. 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,

. 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,

. 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

18