UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Case No. 1:20-cr-194-RCL

NABIL MADZARAC,

Defendant.

MEMORANDUM OPINION

Sometimes, the government acts badly. Occasionally, it does so in bad faith. Usually, it

does so without any suggestion of unfair motive. Here, the government made good faith choices

taken beyond procedural limits. It acted badly, but not wrongfully. Nevertheless, those actions

require action by this Court.

In 2020, the government indicted the defendant after being warned by his counsel that there

would be no venue in the District of Columbia. It continued to pursue the case even after repeated

reminders by the defense that venue was inappropriate. And then—immediately after the

defendant filed the motion to dismiss for lack of venue long threatened—the government promptly

asked this Court for leave to dismiss the indictment without prejudice to refiling. In response, the

defense requested that this Court exercise its discretion to dismiss the case with prejudice and

prevent the government from filing the same case against Nabil Madzarac again.

Given the peculiar circumstances here, the Court will exercise its procedural authority to

dismiss this case while preventing the government from refiling on the same charges. To be clear,

there is no evidence that any prosecutor acted purposefully to harm Mr. Madzarac. But because

dismissal without prejudice would objectively harass this defendant such that it would not be in

the public interest to dismiss without prejudice, the Court will DISMISS WITH PREJUDICE.

1 I. BACKGROUND

On or about August 15, 2020, Mr. Madzarac allegedly issued threats to kill or attempt to

kill foreign officials associated with the Embassy of the State of Libya. Mr. Madzarac was

subsequently arrested and charged by complaint with one count of Interstate Communication with

Intent to Threaten or Injure, in violation of

(c), and one count of Threats Against

Foreign Officials, Official Guests, or Internationally Protected Persons, in violation of

(a). Compl., ECF No. 1. Mr. Madzarac made his initial appearance on August 18, 2020,

Minute Entry (Aug. 18, 2020), and was indicted one month later. Indictment, ECF No. 13.

Even before Mr. Madzarac was indicted, the government was informed that the defense

believed venue in the District of Columbia was improper. At a preliminary hearing on

September 1, 2020, the defense unequivocally raised the issue, explaining that no conduct occurred

in the District of Columbia, and no communication was transmitted or otherwise touched the

District. See Tr. (Sep. 1, 2020) at 45, ECF No. 35. The government brushed off the concerns,

represented that venue was appropriate, and pursued an indictment.

. On September 17,

2020, a grand jury in the District of Columbia indicted Mr. Madzarac on the same charges as were

in the complaint. See Indictment.

The case proceeded along, with this Court setting a trial date for May 2023. Minute Entry

(July 29, 2022). In August 2022, after receiving certain grand jury material, Mr. Madzarac’s

attorney raised the issue of venue with the government again. Sealed Decl. of Benjamin Singer

¶ 3, ECF No. 97-4. Defense counsel then requested additional information to ascertain how the

government presented the case to the grand jury and why the government pursued the case in this

District (as opposed to one where venue would have been proper).

Later that same month, the

defense raised the venue issue again via letter to the prosecutor.

.

2 The government, whether in response to defense counsel’s repeated objections or

otherwise, offered an extraordinarily favorable deferred prosecution agreement in September

2022. ECF No. 97-5. He was offered the chance to serve exactly zero days of incarceration

through that agreement.

In exchange, Mr. Madzarac would have had to agree to many

provisions, including a clause that he would waive objections to venue.

Mr. Madzarac’s

attorney avers that the government maintained the venue provision as

nonnegotiable. Sealed Decl. of Benjamin Singer ¶ 5. The defendant subsequently rejected the

resolution. Def.’s Reply Supp. Mot. Dismiss With Prejudice 5, ECF No. 97-1.

Between September 2022 and February 2023, the parties appeared before the Court to

discuss various matters, including whether Mr. Madzarac would receive new counsel or proceed

pro se at trial. See Minute Entry (Nov. 3, 2022); Minute Entry (Feb. 10, 2023); Order, ECF No. 86.

During this same period, the government never suggested that the case might ultimately fail due

to a venue defect. Indeed, it took affirmative steps to move the case along. See, e.g., Notice of

Filing of State Department Documents, ECF No. 85; Tr. (Nov. 3, 2022) (motions hearing during

which the government attorney described the case in detail, represented that the government had

substantially completed discovery, asked for speedy trial to be waived, and suggested there might

still be a resolution to the matter), ECF No. 92; Tr. (Feb. 10, 2023) 17:16–⁠22 (status conference

during which the government attorney represented readiness for trial and suggested that the date

could have been held earlier but for the defense’s wish to file several motions), ECF No. 90.

In mid-February 2023, with the representation issues resolved, defense counsel moved to

dismiss on several grounds, including for lack of venue. Def.’s Mot. Dismiss, ECF No. 88. Two

weeks later, the government itself requested that this Court dismiss the case. Gov.’s Mot. Dismiss,

ECF No. 91. In so doing, the United States is unequivocal. It “concedes” that “this is the wrong

3 venue to adjudicate the offenses” “and, consequently, the government now moves to dismiss the

case.”

. However, the government wants this Court to do so without prejudice instead of

with prejudice.

The former allows the government to bring these charges against Mr. Madzarac

again. The latter precludes that option.

The defense challenged the government’s request for a dismissal without prejudice, Def.’s

Reply Supp. Mot. Dismiss With Prejudice, and the government responded to that opposition,

Gov.’s Reply, ECF No. 98. The defendant has also asked for additional discovery, particularly for

grand jury material, that might help support allegations of government misconduct. Def.’s Reply

Supp. Mot. Dismiss With Prejudice 11. Because the defendant has demonstrated that dismissal

with prejudice is proper without such discovery, the Court need not reach the issue.

II. LEGAL STANDARD

“Historically, the prosecutor had unrestricted authority to enter a nolle prosequi at any time

before the empaneling of the jury and such a dismissal was unencumbered by any restriction on a

renewal of the charges.” United States v. Poindexter,

(D.D.C. 1989) (internal

citations omitted). However, the Federal Rules of Criminal Procedure now require the government

to seek “leave of court” if it wishes to dismiss an indictment. Fed. R. Crim. P. 48(a). “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.” Rinaldi v. United States,

,

29 n.15 (1977) (per curiam). On the other hand, a court cannot fail to grant leave simply because

it disagrees with the prosecutor’s substantive choices as to what merits prosecution. See United

States v. Fokker Servs. B.V.,

(D.C. Cir. 2016).

The process involves a two-part inquiry. First, “[w]hen the prosecutor’s discretion is

challenged, the prosecutor has the initial burden of explaining that a dismissal without prejudice

4 would be in the public interest.” United States v. Florian,

(D.D.C. 2011).

This is an exceedingly low threshold. See

After meeting the public interest threshold, the

government’s choice is presumptively in the public interest and therefore a dismissal without

prejudice is “presumptively valid.”

To overcome that presumption, the court will then consider

part two of the inquiry: whether “dismissal without prejudice ‘would result in harassment of the

defendant or would otherwise be contrary to the manifest public interest.’” United States v.

Simmons, No. 18-cr-344 (EGS),

, at *19 (D.D.C. May 2, 2022) (quoting

Poindexter,

). This “has the effect of granting authority to the court in

exceptional cases to reject a dismissal without prejudice.” Poindexter,

. A court

can determine whether the potential for harassment renders a dismissal with prejudice in the public

interest by looking at the purpose of the government’s dismissal and the effect it has on the

defendant.

In sum, “the question is not whether the government was acting in bad faith, but rather

whether the actions of the government objectively amounted to harassment.” United States v.

Pitts,

, 203 (D.D.C. 2019). “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.’”

at 205 (quoting Poindexter,

). At its core, Rule 48(a) ensures

that “the government [cannot] 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.”

Poindexter,

.

5 III. DISCUSSION

A. The Government Has Demonstrated That Dismissal Without Prejudice Would Be in the Public Interest

To start, the government has met its initial, rather de minimis, burden to explain why

dismissal without prejudice would serve the public interest in the abstract. Specifically, the

government argues that another prosecutor may choose to hold the defendant accountable for the

charged conduct, in another venue. Gov.’s Reply 1. It concedes nothing except that dismissal for

lack of venue should occur in the District of Columbia.

The government explains that it

continues to believe that the defendant’s conduct is serious and could be worthy of prosecution.

See

And even the defendant agrees that venue is plainly available in other districts. See Def.’s

Mot. Dismiss 8.

The government’s explanation is enough to meet the low initial bar of public interest.

Dismissing in one venue to allow charges to be brought in another venue is well within the bounds

of permissible “judgment for that of the prosecutor.” See Poindexter,

. There

are no obvious procedural bars stopping such a future prosecution. With that, the burden shifts to

the defendant to explain why the Court should take the extraordinary step of precluding the

government from coming to another court with another indictment on the same charges.

B. The Defendant has Shown Dismissal with Prejudice is Appropriate

a. Origins of the Harassment Test

To succeed in having this case dismissed with prejudice, Mr. Madzarac must establish why

allowing an additional prosecution would result in objective harassment and therefore be contrary

to the manifest public interest. See Florian,

. The exact basis of this test,

and the Court’s power to actually bar further prosecution on harassment grounds, is somewhat

murky. As the Court earlier noted, historically, the power of a federal court to interfere with the

6 choice to dismiss a federal criminal prosecution was nil. United States v. Salinas,

(5th Cir. 1982). That is, at common law, the prosecutor could dismiss the case “without the

consent of the court at any time before the empaneling of the jury.”

This historical restraint

on the judiciary was abridged when Rule 48(a) went into effect in the mid-1940s as part of the

initial version of the Federal Rules of Criminal Procedure. United States v. Cowan,

,

505 & n.1 (5th Cir. 1975).

The relevant portion of Rule 48(a) then, as now, requires “leave of court” for dismissal.

This language was chosen by the Supreme Court when it was drafting the rules. Indeed, the

Supreme Court expressly rejected an alternative proposal by the Advisory Committee appointed

to draft the Rules which would have required that the prosecution merely provide a statement of

the reasons for dismissal. See Thomas Ward Frampton, Why Do Rule 48(a) Dismissals Require

“Leave of Court”?, 73 Stan. L. Rev. Online 28, 34–37 (2020). “The Court offered little public

explanation for its final revisions, at least at the time.” Id. at 37; accord Rinaldi,

n.15 (recognizing that the leave of court requirement was added by the Court “without

explanation”).

Around 30 years after Rule 48(a) came into effect, the Supreme Court provided color and

substance to the otherwise bare language. Surveying decisions of the circuit courts, the Court

concluded that “[t]he 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.” Rinaldi,

n.15 (citations omitted). 1 Only a few years earlier, the D.C. Circuit had similarly recognized

1 The Supreme Court also recognized there may be circumstances where a dismissal consented to by both the government and the defendant would fail to garner leave of court. Rinaldi,

n.15.

7 that the Rule gave federal district judges “the role of guarding against abuse of prosecutorial

discretion.” United States v. Ammidown,

(D.C. Cir. 1973). And even more

recently, the Circuit has explained that “[a] court thus reviews the prosecution’s motion under Rule

48(a) primarily to guard against the prospect that dismissal is part of a scheme of ‘prosecutorial

harassment.’” Fokker Servs. B.V.,

(quoting Rinaldi,

n.15).

Whether this understanding was ultimately correct at its inception, Rule 48(a) is now

routinely applied in this District to consider dismissal with prejudice.

b. The Harassment Test in the District of Columbia District Courts

Given that history, this Court must decide whether it will dismiss Mr. Madzarac’s case

with prejudice under the harassment test. Beyond general statements, the D.C. Circuit has not

squarely addressed how to evaluate a motion to dismiss without prejudice when the defendant asks

for dismissal with prejudice. See Pitts, 331 F.R.D. at 203. In the absence of such authority on

how to make a that determination, this Court will 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. Those three considerations can be found

throughout the District’s cases evaluating prosecutorial harassment under Rule 48(a). See, e.g.,

id.; United States v. Fields,

(D.D.C. 1979); Poindexter,

; United

States v. Karake, No. 02-cr-256 (ESH),

(D.D.C. Feb. 7, 2007); Florian,

. It is only when those considerations overcome the presumption that the public

interest favors a dismissal without prejudice, that a dismissal shall be ordered with prejudice.

One of the foundational cases in this District, Fields, touched on all three of those issues.

There, the district court dismissed an indictment with prejudice after concluding that the

government “indicted [the defendant] without sufficient evidence against him Solely [sic] to secure

8 his cooperation with the government in testifying against another.” Fields,

.

The court determined that, because the government did not have sufficient evidence to ever bring

the defendant to trial, the government’s pursuit of an indictment against him was wrongful and the

circumstances indicated a lack of good faith.

. And the effect on the defendant further

counseled dismissal with prejudice. Otherwise, dismissal would lead to a “more favorable

prosecutorial posture” after the defendant was “punished for not cooperating with the prosecution

in the first place.”

(internal quotation marks omitted).

In another case, the government wished to dismiss without prejudice a criminal prosecution

because the trial date was approaching and the government had not been able to generate DNA

test results for a crucial piece of evidence. Pitts, 331 F.R.D. at 202. The district court decided to

dismiss with prejudice given that the government’s reason for dismissal was merely

“dissatisf[action] with the state of its case, through no fault of the defendant.” Id. at 204; id. at 205

(“[T]he purpose sought to be achieved is clearly tactical, to better position the government to try

this case.”). Furthermore, “unusual, and indeed disturbing, facts surrounding [the defendant’s]

arrests” suggested an absence of good faith on the part of the government, including that he had

been arrested and detained twice on the same criminal conduct. See id. at 205. As to the effect on

the defendant, the district court determined that it would “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.” Id. at 206.

To the contrary, when the government faces an unexpected legal or factual development

and moves to dismiss without prejudice, courts routinely grant the request. See, e.g., Karake,

at *1–3. In Karake, after the district court suppressed critical statements for the

prosecution’s case, the prosecution moved to dismiss the case without prejudice, concluding that

9 the government could not meet its burden to prove its case beyond a reasonable doubt with the

remaining evidence. See

The court concluded that dismissing the case without prejudice—to

allow for the possible future development of evidence—was perfectly legitimate.

Furthermore,

there was no suggestion that the government’s conduct lacked good faith. See

Thus, even

though dismissal without prejudice put the government on better footing than if it had to bring the

case to trial, the court dismissed without prejudice.

It is apparent then that courts in this District contemplate how the three considerations—

purpose of the dismissal, presence or absence of good faith by the government, and effect on the

defendant—relate to each other when determining prosecutorial harassment.

The appropriateness of considering these three factors in tandem is rather intuitive. To

understand whether a defendant is being harassed, a court must consider not only how the

defendant is affected, but why the defendant is affected. For example, suppose the key witness in

a prosecution flees the country and becomes unavailable two years following indictment. If the

government responds by moving to dismiss the case without prejudice, a court must consider not

just how dismissal without prejudice would affect the defendant, but also why the government so

moved. In that situation, barring significant evidence of a lack of good faith, the typical Rule 48(a)

analysis would result in dismissal without prejudice. While it is true that the defendant would be

disadvantaged by the dismissal, the government’s purpose would be a valid reaction to developing

circumstances. On the other hand, if the government knew from the beginning of the case that the

witness would be unavailable, pursued the case for years anyway, and then tried to dismiss without

prejudice to preserve the possibility of recovering the witness in the future, the typical analysis

might very well lead to a dismissal with prejudice. In that way, the relationship between the

10 government’s behavior and the effect on the defendant is the principal mode of analysis under the

harassment test.

c. Application of the Harassment Test

Here, the government’s purpose and the effect on the defendant together counsel in favor

of dismissal with prejudice. The government chose to pursue this case even while knowing that it

could not establish venue in this District. Then, when the government was unable to work out a

resolution where the defendant would waive venue, it moved to dismiss without prejudice to save

itself from the tactical disadvantage of litigating a losing position. Even though there is no

suggestion of anything but good faith on the part of the government and its attorneys, these actions

warrant dismissal with prejudice under Rule 48(a).

Beginning with examination of the purpose of dismissal. During the preliminary hearing

in this matter, on September 1, 2020, defense counsel explained that venue could never be

established in the District of Columbia for the crimes charged. Tr. (Sep. 1, 2020) at 45. The

government affirmatively represented that it could establish venue.

(“[T]he complaint is

sufficient on that, and to allege the offense occurred within the District.”). After the government

indicted Mr. Madzarac, the case moved along slowly. For one, several issues regarding Mr.

Madzarac’s mental health and competence delayed matters at the outset. Then, about a year and

a half into the case, his primary counsel throughout the vast majority of the proceedings withdrew.

Minute Entry (Jan. 6, 2022); Notice of Appearance, ECF No. 52. After the Court set a trial date,

Mr. Madzarac’s new counsel brought the venue issue to the attention of the government again not

once, but twice. Sealed Declaration of Benjamin Singer ¶¶ 3, 4. Thus, by August 2022, two

different defense counsel had raised the issue of venue with the government and had done so a

total of three times. Yet, it was only in March 2023 that the government was willing to admit this

11 District is the “wrong venue to adjudicate the offenses” and that a dismissal without prejudice is

necessary to maintain the “ability to bring the case in another jurisdiction where venue lies.”

Gov.’s Mot. Dismiss 1, 6; see Gov.’s Reply 1.

That is very different from a situation where the government asks to dismiss based on

developing circumstances or legal theories. Indeed, there are few situations more obviously

involving the forbidden governmental purpose of “escap[ing] from a position of less advantage in

which [the government] found itself as a result of its own election” than the one presented here.

See Poindexter,

.

The government’s written briefing fails to dispel the overwhelming impression that it was

aware that venue could not be established but kept pushing forward with the prosecution

regardless. It unequivocally states now that “[t]hough the threat had an impact in this district . . .

the government concedes that this impact is insufficient to establish venue” and “venue does not

lie in the District of Columbia.” Gov.’s Mot. Dismiss 2–3. The government argued the opposite

during the preliminary hearing, a contention it now concedes was clearly foreclosed by D.C.

Circuit caselaw. See Gov.’s Reply 2 (“The government’s argument was, essentially, an argument

for an ‘effects’ test. An argument for an effects test was not frivolous and has been adopted by

other courts in certain cases in other circuits, but that standard is not the current law of this

circuit.”). Nevertheless, perhaps to take the sting out of its concession, the government goes on,

only in its reply, to ask questions about alternative theories of venue. “Was the defendant’s

conduct a ‘continuing offense’ under

(a) making the District of Columbia a

proper venue?”

“Further, does

provide venue in the District of Columbia?”

These short questions and brief analysis do next to nothing for the government’s case. The

government maintained that venue was proper under a theory barred by binding caselaw and did

12 not even hint at these alternative theories at any point before its reply to Mr. Madzarac’s motion

to dismiss with prejudice. Especially given the government’s near-immediate concession upon the

defendant moving to dismiss, the Court is convinced that the government pursued the case

knowing it could not establish venue. 2

As to why it would pursue a case without valid venue, the government’s briefing sheds

some light. It notes that, while defense counsel was reraising venue arguments in August 2022,

the government was discussing how to resolve this case short of trial. Gov.’s Reply 3. After all,

“venue is waivable” and therefore negotiations could have resulted in a deferred prosecution

agreement or other resolution wherein the defendant would waive any challenge to venue.

at 3–4. The government appears to believe that the availability of waiver helps its argument for a

dismissal without prejudice. It does not. By the time of these negotiations, the government had

been noticed three times of the lack of venue. Furthermore, the prosecution’s immediate

concession upon a motion to dismiss, and the lack of any substantive argument otherwise, strongly

suggests that it did not seriously intend to maintain venue in the District of Columbia. To negotiate

a resolution while the defendant was indicted in this District, knowing that the case would not be

taken to trial, is precisely the improper purpose barred by the harassment test.

For the effect on the defendant, the operative question is whether dismissal without

prejudice would lead to the government “commencing another prosecution at a different time or

place deemed more favorable to the prosecution.” Ammidown,

; accord

Poindexter,

(identifying the concern as protecting the defendant from the

government seeking to “gain a position of advantage, or to escape from a position of less advantage

2 To conclude otherwise would be to believe that the government planned to pursue (1) an otherwise barred effects test theory of venue all the way to the en banc D.C. Circuit or (2) those alternative theories first mentioned in its reply.

13 in which it found itself as a result of its own election”). That effect is undoubtably present here.

If the government were to have taken this case to trial, it would have had to prove to the jury that

venue was appropriate for each charge against Mr. Madzarac. See 2 Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure Crim. § 307 (4th ed. 2022). By allowing the government

to reindict in another district, the Court would be permitting the same kind of escape from a

voluntarily chosen disadvantage at trial that courts have barred in the past. See, e.g., Pitts, 331

F.R.D. at 205.

Nevertheless, while the government’s purpose was improper under Rule 48(a)’s

harassment inquiry, and the effect on the defendant counsels a dismissal with prejudice, this Court

is firmly convinced that the government did not pursue this case with anything other than good

faith. Its actions here are far afield from those cases where an absence of good faith suggested

dismissal with prejudice would be appropriate. In Fields, the government indicted a substantively

impossible case because it wished to coerce the defendant into cooperation.

.

In Pitts, the defendant was arrested twice for the same criminal conduct under suspicious

circumstances. 331 F.R.D. at 202. Here, the government responded to developing and threatening

circumstances when Mr. Madzarac allegedly terrorized embassy staff, it staked out a position on

venue, and at a certain point maintained that position despite an unwillingness to see it through to

the end. That establishes a purpose and effect suggesting a dismissal with prejudice would be

appropriate under Rule 48(a)’s procedural scheme. But it fails to represent anything like bad faith. 3

3 And that is true under the various ways of considering prosecutorial bad faith. As this Court has explained, it is certainly true under the good faith component of the harassment test. It is also true under the analysis applicable to prosecutorial vindictiveness. See United States v. Meadows,

(D.C. Cir. 2017). And the evidence demonstrates that the prosecutors never stepped outside of their proper role in a manner that would pierce absolute immunity from suit. See Atherton v. D.C. Off. of Mayor,

(D.C. Cir. 2009). Under all three measures, the actions here suggest nothing like bad faith.

14 That puts this case in a strange position among Rule 48(a) cases. While the purpose and

effect factors favor dismissal with prejudice, the presence of good faith suggests dismissal without

prejudice would be proper. And the Court must, on one hand, recognize that the offense Mr.

Madzarac has been charged with is serious. On the other hand, having had the time to fully

investigate and consider the offense, the government offered him a deferred prosecution agreement

without any incarceration. That latter point cuts against the presumption that the public interest

would be served by a dismissal without prejudice.

Balancing all of the competing issues, this Court is ultimately, and narrowly, convinced to

dismiss the indictment with prejudice despite the presence of good faith. In sum, because the

purpose and effect of a dismissal without prejudice is so squarely within the core of the objective

harassment test under Rule 48(a)—alongside the government’s conclusion that Mr. Madzarac’s

case merits a deferred prosecution agreement without incarceration—this Court concludes the

public interest would be best served by a dismissal with prejudice.

* * *

Taking the developments of the last two and a half years as a whole, the Court is under the

overwhelming impression that the government, for its own reasons, pursued a case it knew could

not successfully be brought to trial in the District of Columbia. And while it is true that the many

delays over the last two and a half years are almost exclusively to be laid at the feet of the defense

and the defendant, this does not absolve the government of its knowledge that venue was

inappropriate throughout that time. It is not, after all, the overall delay that leads to this dismissal

with prejudice. Rather, it is the government’s knowing and voluntary choice to continue pursuing

the case knowing full well that it would never try the case in this District. At a certain point, the

15 purpose and effect of that choice crossed over the threshold to harassment and, in this novel and

extraordinary situation, dismissal with prejudice is appropriate.

IV. CONCLUSION

For the foregoing reasons, the Court will DISMISS the indictment WITH PREJUDICE

pursuant to Federal Rule of Criminal Procedure 48(a).

Furthermore, even though this opinion cites to and quotes sealed material, this opinion shall

not be filed under seal in any part. Because the Court relies on the referenced material to conclude

that Mr. Madzarac's indictment should be dismissed with prejudice, the public's right to access

outweighs the otherwise valid case for sealing that information. Accordingly, the referenced

documents will remain under seal, but this opinion shall remain available to the public.

A separate order will issue.

,.,..­ Date: May_, 2023 Royce C. Lamberth United States District Judge

16