UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Action No. 24-395 (BAH)

MICHAEL JERRETT AMOS, Judge Beryl A. Howell

Defendant.

MEMORANDUM AND ORDER

The United States government moves to dismiss, with prejudice, the seven-count

Indictment, ECF No. 14, against defendant Michael Jerrett Amos. Govt’s Mot. to Dismiss

Indictment with Prejudice Pursuant to Federal Rule Criminal Procedure 48(a) (“Govt’s MTD”),

ECF No. 22. For the reasons explained below, the government’s motion is granted in part and

denied in part, and the pending indictment against defendant is dismissed without prejudice.

I. BACKGROUND

Defendant was indicted by a grand jury on seven counts—five felonies and two

misdemeanors—alleging that he engaged in serious criminal conduct on January 6, 2021,

including assaulting law enforcement officers. See Indictment. Based on an investigation by the

Federal Bureau of Investigation (FBI) and analysis of photographic and videotape recordings

from the attack on U.S. Capitol building on January 6, 2021, defendant is alleged to have gone to

the U.S. Capitol grounds where he was part of a crowd at the Southwest Plaza trying to remove

the metal fencing and break past a line of police officers. Complaint, Statement of Facts at 6,

ECF No. 1-1. Defendant then allegedly charged the officers with a flagpole. Id. at 6-8. As the

police line re-formed, rioters surged once again, and this time, defendant allegedly assaulted

them with pepper spray. Id. at 8-9. According to the FBI, he continued to push other rioters,

1 yelling for them to advance against the police line until the rioters successfully overtook the

West Plaza. Id. at 9-11.

Based on this investigation of his alleged offense conduct, defendant is facing charges for

violations of

(a)(3) (obstructing, impeding, or interfering with a law enforcement

officer during the commission of a civil disorder),

(a)(1) & (b) (forcibly

assaulting, resisting, or opposing an officer engaged in performance of duties, while using a

deadly or dangerous weapon and while the officers were engaged in performance of official

duties, and with intent to commit another felony),

(a)(1), (a)(2), (a)(4) &

(b)(1)(A) (knowingly entering and remaining in a restricted area, engaging in disorderly and

disruptive conduct therein, and engaging in physical violence, all while using and carrying a

dangerous or deadly weapon),

(e)(2)(D) (willfully and knowingly engaging in

disorderly conduct with intent to disrupt Congress),

(e)(2)(F) (willfully and

knowingly engaged in an act of physical violence in the Capitol). See Indictment. These charges

subject defendant to up to twenty years in prison. See

(a)(1) & (b).

Since the indictment was filed in August 2024, defendant has appeared before this Court

for two status conferences, and a trial date was set for June 23, 2025. See Min. Entry (Sept. 5,

2024); Min. Entry (Dec. 13, 2024); Min. Order (Dec. 16, 2024). The government now seeks

dismissal of the Indictment under Federal Rule of Criminal Procedure 48(a). Govt’s MTD.

II. DISCUSSION

Courts have limited power when the federal government decides to stop prosecuting a

criminal defendant. See, e.g., Wayte v. United States,

(1985) (recognizing

the government’s broad prosecutorial discretion); United States v. Fokker Servs. B.V.,

(D.C. Cir. 2016) (recognizing same prosecutorial discretion in “decisions to dismiss

2 pending criminal charges”). At the same time, the Supreme Court and D.C. Circuit have both

recognized that the “leave of court” requirement in Rule 48(a) “obviously vest[s] some discretion

in the court.” Rinaldi v. United States,

, 29 n.15 (1977); United States v. Ammidown,

(D.C. Cir. 1973) (noting that this rule “gives the court a role in dismissals

following indictment”). This discretion is granted in part to “guard[] against abuse of prosecutorial

discretion.” Ammidown,

. To ensure that the government’s request for dismissal

of criminal charges “sufficiently protects the public,” the government may be required to submit

“a statement of reasons and underlying factual basis,” which must be “substantial” to justify the

dismissal and not “a mere conclusory statement.”

Here, the government’s cursory motion provides no factual basis for dismissal. Instead,

the single paragraph explanation included in the one-page dismissal motion cites “as the reason

for this dismissal,” only a presidential proclamation “dated January 20, 2025, Granting Pardons

and Commutation of Sentences for Certain Offenses Relating to the Events at Or Near the United

States Capitol on January 6, 2021.” Govt’s MTD at 1. This cited proclamation, inter alia, directs

the Attorney General “to pursue [the] dismissal with prejudice to the government of all pending

indictments against individuals for their conduct related to the events at or near the United States

Capitol on January 6, 2021.” See PROCLAMATION, (Jan. 20, 2025) (capitalization in original),

available at https://www.whitehouse.gov/presidential-actions/2025/01/granting-pardons-and-

commutation-of-sentences-for-certain-offenses-relating-to-the-events-at-or-near-the-united-

states-capitol-on-january-6-2021/. The only reason provided for this instruction, as set out in the

proclamation’s introduction, is the assertion that this action “ends a grave national injustice that

has been perpetrated upon the American people over the last four years and begins a process of

national reconciliation.”

3 No “national injustice” occurred here, just as no outcome-determinative election fraud

occurred in the 2020 presidential election. No “process of national reconciliation” can begin when

sore losers, whose preferred candidate loses an election, are glorified for disrupting a

constitutionally mandated proceeding in Congress and doing so with impunity. That merely raises

the dangerous specter of future lawless conduct by other sore losers and undermines the rule of

law. Yet, this presidential pronouncement of a “national injustice” is the sole justification provided

in the government’s motion to dismiss the pending indictment. See Govt’s MTD.

Having presided over scores of criminal cases charging defendants for their criminal

conduct both outside and inside the U.S. Capitol Building on January 6, 2021, which charges were

fully supported by evidence in the form of extensive videotapes and photographs, admissions by

defendants in the course of plea hearings and in testimony at trials, and the testimony of law

enforcement officers and congressional staff present at the Capitol on that day, this Court cannot

let stand the revisionist myth relayed in this presidential pronouncement. The prosecutions in this

case and others charging defendants for their criminal conduct at the U.S. Capitol on January 6,

2021, present no injustice, but instead reflect the diligent work of conscientious public servants,

including prosecutors and law enforcement officials, and dedicated defense attorneys, to defend

our democracy and rights and preserve our long tradition of peaceful transfers of power—which,

until January 6, 2021, served as a model to the world—all while affording those charged every

protection guaranteed by our Constitution and the criminal justice system. Bluntly put, the

assertion offered in the presidential pronouncement for the pending motion to dismiss is flatly

wrong.

Still, the D.C. Circuit has cautioned that a district court judge has “no power” “to deny a

prosecutor’s Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution’s

4 exercise of charging authority.” Fokker,

;

(“It has long been settled that

the Judiciary generally lacks authority to second-guess those Executive determinations, much less

to impose its own charging preferences.”). Despite finding that the sole reason relied upon by the

government to dismiss the charges in this case—i.e., an incorrect assertion in the presidential

proclamation—is neither substantial nor factually correct, the government’s view of the public

interest does not clearly fall within the types of reasons found to provide legitimate grounds to

deny the government Rule 48(a) motion to dismiss charges. See United States v. Flynn,

, 130-31 (D.D.C. 2020) (collecting examples where a government motion to dismiss

should be denied as not serving “legitimate prosecutorial interests,” because the motion “was a

sham or deception,” “was based on ‘acceptance of a bribe, personal dislike of the victim, and

dissatisfaction with the jury impaneled,’” or was meant to favor “politically well-connected

individuals” (citations omitted)). Therefore, the government’s motion to dismiss the indictment is

GRANTED.

Nothing about the government’s reasoning for dismissal warrants entry of dismissal with

prejudice, however. Dismissal with prejudice is a complete adjudication of the matter and would

bar any further prosecution of defendant for his offense conduct at issue. See Brown v. Amtrak

Corp., No. 03-7003,

, at *1 (D.C. Cir. Oct. 27, 2023) (“A dismissal ‘with

prejudice’ is a final judgment on the merits which bars further litigation between the same parties.”

(citing Bd. of Trs. of the Hotel & Rest. Emps. Local 25 v. Madison Hotel, Inc.,

, 1489

n.20 (D.C. Cir. 1996))); Reed v. Farley,

(1994) (Blackmun, J., dissenting)

(“The dismissal with prejudice of criminal charges is a remedy rarely seen in criminal law, even

for constitutional violations.”). This result would be improper here, particularly given the strength

of the evidence supporting allegations that this defendant violently charged police officers and

5 then assaulted them with pepper spray, which evidence provides ample basis for criminal

prosecution. See also Thorp v. District of Columbia,

(D.D.C. 2015)

(noting that dismissal with prejudice “reflect[s] on the merits of the underlying action” (quoting

Brown v. Carr,

(D.C. Cir. 1986), and citing Kenley v. District of Columbia,

(D.D.C. 2015)). Instead, the government’s reliance on a policy assertion

made in the presidential proclamation that such prosecutions should not be continued warrants

only “render[ing] the proceedings a nullity and leav[ing] the parties as if the action had never been

brought,” Magliore v. Brooks,

(D.D.C. 2012) (quoting Thoubboron v. Ford

Motor Co.,

(D.C. Ct. App. 2002)), which is achieved by granting the

government’s motion to dismiss without prejudice, see

III. CONCLUSION AND ORDER

For the reasons above, the government’s motion to dismiss, ECF No. 22, is granted to the

extent that the Indictment, ECF No. 14, against defendant is dismissed, but denied as to the request

that this dismissal be “with prejudice.” Accordingly, it is hereby—

ORDERED that Indictment against defendant, ECF No. 14, is dismissed without

prejudice; it is further

ORDERED that all scheduled proceedings, including the February 7, 2025 status

conference and June 23, 2025 trial date, and all deadlines are VACATED; and it is further

ORDERED that the Clerk of the Court is directed to close this case.

Date: January 23, 2025

__________________________ BERYL A. HOWELL United States District Judge

6