UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Criminal No. 13-225-02 (CKK)
GRANT JOHNSON,
Defendant.
MEMORANDUM OPINION
(December 10, 2013)
During the December 3, 2013 Status Hearing in this matter, the Government orally
moved to dismiss without prejudice the indictment as to Defendant Grant Johnson pursuant to
Fed. R. Crim. P. 48(a). At this hearing, Defendant Grant Johnson requested the opportunity to
submit briefing arguing that the dismissal of the indictment should be with prejudice. The Court
granted Defendant’s request and on December 5, 2013, Defendant submitted his [11]
Memorandum of Law in Support of Dismissal with Prejudice (“Def.’s Mem.”). The Government
subsequently filed its [12] Memorandum of Law in Support of Oral Motion to Dismiss
Indictment Without Prejudice (“Gov’t’s Mem.”) on December 6, 2013. Upon consideration of
the parties’ submissions, case law, and applicable statutory authority, the Court shall GRANT the
Government’s Oral Motion to Dismiss the Indictment Without Prejudice for the reasons set out
below. Accordingly, the indictment as to Defendant Grant Johnson is dismissed without
prejudice.
I. BACKGROUND
On August 6, 2013, a federal grand jury sitting in the District of Columbia returned an
indictment charging Defendant and his co-defendant with Conspiracy to Distribute and Possess
With Intent to Distribute 28 Grams or More of Cocaine Base, in violation of Title 21, United
States Code, Section 846. See Indictment, ECF No. [1]. On August 23, 2013, Defendant Grant
Johnson was arrested pursuant to this indictment. See Arrest Warrant, ECF No. [4]. At this
time, Defendant Grant Johnson was being held without bond for a pending criminal case in the
Superior Court of the District of Columbia, in which he had been charged by indictment with
first degree murder while armed and related charges. Defendant’s initial appearance in this case
occurred on August 23, 2013 before Magistrate Judge Alan Kay. See Minute Order of Aug. 23,
2013. Pursuant to the Government’s oral motion that Defendant be held without bond pursuant
to 18 U.S.C. §§ 3142(f)(1)(C), (D), (d)(1)(A)(iii), Magistrate Judge Kay ordered that Defendant
be held without bond pending a detention hearing scheduled for August 28, 2013. Id. Following
the August 28, 2013 detention hearing, Magistrate Judge Kay ordered that Defendant be held
without bond pending trial. See Detention Mem., ECF No. [7].
Beginning on August 28, 2013 and until December 3, 2013, this case has been addressed
through a series of status hearings. See Minute Order of Aug. 28, 2013; Minute Order of Sept.
18, 2013; Minute Order of Oct. 25, 2013; Minute Order Nov. 15, 2013; Minute Order of Dec. 3,
2013. The parties have repeatedly jointly requested continuances of this matter in order to
permit them an opportunity to review discovery and pursue plea negotiations. Id. In order to
allow for these actions, Defendant has repeatedly agreed to toll the time under the Speedy Trial
Act between status hearings. Id. No trial date has yet been set in this matter, and no motions,
other than the oral motion to dismiss the indictment addressed in this order, are currently
pending.
At the November 15, 2013 Status Hearing, the parties informed the Court that Defendant
Grant Johnson had recently been convicted of first degree murder while armed following his trial
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in the Superior Court of the District of Columbia. Subsequently, at the December 3, 2013 Status
Hearing in this matter, the Government orally moved to dismiss the indictment without prejudice
as to Defendant Grant Johnson. See Minute Order of Dec. 3, 2013. The Government stated that
it had chosen to dismiss the indictment in light of Defendant’s recent homicide conviction, for
which he faces a mandatory minimum sentence of 30 years, and a maximum sentence of life in
prison. Id. After the Court inquired why the indictment should not be dismissed with prejudice,
the Government stated that because it understood that Defendant intended to appeal his
conviction, the possibility remained that it could be overturned or vacated on appeal. Id. By
dismissing the indictment without prejudice, the Government wished to preserve its ability to
revive this case should Defendant’s murder conviction be overturned or vacated on appeal within
the statute of limitations for the present charges. Id.
At this hearing, Defendant requested an opportunity to submit briefing arguing that the
indictment should be dismissed with prejudice. Id. Accordingly, the Court took the
Government’s oral motion under advisement, and provided Defendant and the Government an
opportunity to submit briefing as to whether the dismissal should be with or without prejudice.
Id. Subsequently, Defendant filed its [11] Memorandum of Law in Support of Dismissal With
Prejudice, and the Government filed its [12] Memorandum of Law in Support of Oral Motion to
Dismiss Indictment Without Prejudice.
II. LEGAL STANDARD
Federal Rule of Criminal Procedure 48(a) provides that “[t]he government may, with
leave of court, dismiss an indictment, information or complaint. The government may not
dismiss the prosecution during trial without the defendant’s consent.” Fed. R. Crim. P. 48(a).
Yet, although Rule 48(a) requires “leave of court” for a dismissal, “a court is still not free to
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substitute its judgment for that of the prosecutor, whose decision is deemed valid . . . .” United
States v. Poindexter, 719 F.Supp. 6, 10 (D.D.C. 1989). Rather, “the Rule has the effect of
granting authority to the court in exceptional cases to reject a dismissal without prejudice—
which would allow reprosecution—if this would result in harassment of the defendant or would
otherwise be contrary to the manifest public interest.” Id. (emphasis added). See also United
States v. Sparks, 885 F.Supp.2d 92, 104 (D.D.C. 2012) (reiterating this standard). “Accordingly,
although there remains a strong presumption in favor of a no-prejudice dismissal, the ultimate
decision in that regard depends upon the purpose sought to be achieved by the government and
its effect on the accused.” Poindexter, 719 F.Supp. at 10. “[T]he primary concern of courts
which have rejected dismissals without prejudice was that of protecting a defendant from
harassment, . . . and ‘commencing another prosecution at a different time or place deemed more
favorable to the prosecution.’” Id. at 11 (quoting United States v. Ammidown, 497 F.2d 615, 620
(D.C. Cir. 1973)) (emphasis in original).
III. DISCUSSION
In arguing that the indictment should be dismissed without prejudice, Defendant sets out
various allegations that this prosecution was brought in bad faith. See Def.’s Mem. at 4, 5-6.
Defendant’s filing alleges, for the very first time, that his prosecution in this Court represents a
conspiracy between the local and federal prosecutors under which the current claims were
brought to ensure the confinement of Defendant pending the outcome of his murder trial and to
ensure the cooperation of his co-defendant in the murder trial. Id. Yet Defendant offers no
evidence to support this claim of bad faith, and his allegations are at this point completely
unsubstantiated. As further support for his claim, Defendant argues that the case against him is
particularly weak. Id. at 4-5. However, at this point, the Court is in no position to assess the
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sufficiency of the evidence against Defendant. It can merely note that a grand jury has
determined that an indictment against him should issue.
Moreover, in “looking to the purpose sought to be achieved by the government and its
effect on the accused” by dismissing this indictment without prejudice, the Court finds little risk
of “harassment” or “commencing another prosecution at a different time or place deemed more
favorable to the prosecution.” Poindexter, 719 F.Supp. at 11 (quoting United States v.
Ammidown, 497 F.2d 615, 620 (D.C. Cir. 1973)). The Government has articulated a plausible
and reasonable justification for requesting that the indictment be dismissed without prejudice.
See Gov’t’s Mem. at 3-4 (“Thus, with the defendant facing a mandatory minimum sentence of 30
years, and should that conviction be upheld on appeal, it would be prudent for this case to remain
dismissed.”). The Court understands the Government to be saying that prosecuting Defendant
for the drug crimes at issue represents an inefficient use of the Government’s resources, given
that he is facing a mandatory minimum sentence of 30 years (and a maximum sentence of life in
prison) on his District of Columbia murder charge. Accordingly, the Government has chosen, in
an exercise of prosecutorial discretion, to dismiss the indictment. However, if Defendant’s
conviction is overturned on appeal within the statute of limitations, the Government wishes to
preserve the option to revive this prosecution. The Court views this as a reasonable rationale for
seeking a dismissal without prejudice, founded in concerns over resource constraints and
efficiency rather than in a desire to harass Defendant or obtain a more favorable forum or jury.
At this point, there is simply no evidence to support a claim of bad faith on the part of the
Government beyond the allegations contained in Defendant’s filing, which, as discussed, have no
factual basis.
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IV. CONCLUSION
Accordingly, for the reasons stated herein, the Court GRANTS the Government’s Oral
Motion to Dismiss the Indictment Without Prejudice. The indictment against Defendant Grant
Johnson is dismissed without prejudice. An appropriate Order accompanies this Memorandum
Opinion.
_____/s/______________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
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