(dissenting):
I respectfully dissent.
I agree that the government’s power to dismiss an indictment under Rule 48(a) is not absolute. I also agree that a Petite motion may be denied if granting the motion would be “clearly contrary to manifest public interest,” United States v. Cowan, supra, 524 F.2d at 513. With some hesitation, I agree that, although the primary purpose of the “by leave of court” requirement in Rule 48(a) is to protect the defendant from the government’s bad faith1, a trial judge may use his Rule 48(a) power to prevent other types of manipulation of the judicial system. I am also willing to agree, at least arguendo, that one such type of bad-faith manipulation would be a governmental tactic of (a) prolonging a federal prosecution until the defendants’ state court convictions were beyond reversal and then (b) moving for dismissal of the indictment after being thus assured that the defendants would not go unpunished. However, I cannot agree that the record in this case establishes this or any other type of bad faith on the part of government counsel.
I have searched this record from beginning to end without finding anything to justify the appellate factfinding indulged in by the majority. The scenario which the majority offers as the most probable version of what happened behind the scenes at the Department of Justice is the product of sheer speculation. The only concrete fact relied upon by the majority (see supra at n. 6) is the timing of the government’s motion for dismissal. An intermediate appellate court affirmed these defendants’ state court convictions on April 30, 1974, see Scaldeferri v. State, 294 So.2d 407 (Fla.App.1974), and the government’s motion was not filed until. September 30,1974. The majority has overlooked the later history of the state prosecution. The Supreme Court of Florida did not deny certiorari until October 3, 1974, see Pompeo v. State, 303 So.2d 21 (Fla.1974), and the United States Supreme Court denied certiorari only on November 11, 1974, see Washington v. Florida, 419 U.S. 993, 95 S.Ct. 304, 42 L.Ed.2d 266 (1974). Both of these actions, it will be noted, were subsequent to the government’s motion for dismissal. An examination of the opinion of the intermediate state court reveals substantial issues which may well have engaged the attention of a higher court. Indeed, one of the five justices of the Supreme Court of Florida dissented from the denial of certiorari. See, 303 So.2d at 21. In view of these facts, I cannot join in the *1303majority’s assumption that, after April 30, 1974, the government necessarily abandoned any fears that the state convictions might be overturned. Since this assumption is basic to the majority’s finding of bad faith, I must reject that finding as well.
In my view, the following sequence of events is the one best supported by the record. The government lawyers involved in this ease were simply unaware of the Petite policy, or at least unaware that the policy may have been violated, until defendants’ appellate counsel raised this issue on August 2,19742. Government counsel then investigated, discovered the inadvertent noncompliance with Department policy, and referred the matter to the appropriate Assistant Attorney General. This official then decided that, had the proper procedures been followed, he would not have authorized the prosecution. Thereupon, without reference to the status of the state court proceedings (in which, after all, petitions for certiorari were still pending), trial counsel moved to dismiss the indictment. The most that I can charge the government with is a negligent failure to have handled the Petite issue earlier, without outside prodding from defense counsel. Such negligence is not the type of misconduct which will justify denying a Rule 48(a) motion. The Supreme Court routinely remands cases “to permit the Government to dismiss the charges”, even when government counsel fails to discover a Petite violation until the case has reached the High Court. See, e. g., Watts v. United States, 422 U.S. 1032, 95 S.Ct. 2648, 45 L.Ed.2d 688 (1975); Ackerson v. United States, 419 U.S. 1099, 95 S.Ct. 769, 42 L.Ed.2d 796 (1975); Hayles v. United States, 419 U.S. 892, 95 S.Ct. 168, 42 L.Ed.2d 136 (1974). These cases compel the conclusion that something more than careless inattention to internal government procedures is necessary to justify resisting a Petite motion for dismissal.
I realize that the scenario which I have painted is not the only possible explanation of the government’s conduct in this case, although it is the one most in accord with what we know of the facts. Indeed, the majority’s version of events cannot be entirely excluded as a possibility. However, reversal of the order entered below does not require acceptance of my version to the exclusion of all others. To me, the granting of a Rule 48(a) motion cannot be “clearly contrary to manifest public interest” by reason of governmental misconduct, when that misconduct itself is far from “clear” or “manifest”. At the very least, a finding of misconduct (particularly a finding by an appellate court) should be clearly the likeliest explanation of what actually happened. The majority’s speculation does not pass this test. It is, at best, merely one of several possible reconstructions of events. There is no basis for considering it more probable than any other. It is clearly less supported by the record than the version which I have offered. I would reverse the order denying the government’s motion to dismiss the indictment.
. See e. g., United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965).
. Technically, defendants’ counsel introduced this issue by means of a “motion to supplement record on appeal”, which essentially asked for the press release of April 6, 1959, that had led to the holding in Petite.