by Douglas Ankney

The Supreme Court of Wyoming ruled that a district court abused its discretion when it dismissed without prejudice the charges against Matthew A. Carabajal upon the State’s motion under Wyoming Rule of Criminal Procedure 48 (“Rule 48”), and the Supreme Court remanded for dismissal of the charges with prejudice.

On March 1, 2019, the State filed an information charging Carabajal with: (1) aggravated burglary for allegedly firing a pistol into the window of a Honda Pilot and removing a backpack; (2) felony theft for stealing a Kia Sportage; (3) misdemeanor destruction of property for the shooting damage to the Honda; and (4) misdemeanor possession of marijuana. But Carabajal was bound over to the district court only on counts (1), (3), and (4), which were designated Docket 34-412. Count (2) was dismissed at the preliminary hearing because the State failed to present evidence that the owner of the Kia had not given Carbajal permission to use the vehicle.

Then on March 22, 2019, the State filed a second information charging Carabajal with: (1) felony theft for stealing a Ford truck; (2) felony theft for stealing items from the Ford truck; (3) misdemeanor theft for stealing a Taurus pistol; and (4) theft of the Kia that had been dismissed in the earlier proceedings. Carabajal was bound over to the district court on all four of these charges, which were assigned as Docket 34-461.

Discovery and disclosures under Rule 404(b) for Docket 34-412 were due by May 16, and for Docket 34-461, they were due by June 13. Separate trials for both dockets were set for September 10. But on August 19, Carabajal moved to vacate the trials on the ground that he wished to change his plea. At a change-of-plea hearing on September 3, Carabajal informed the court he had changed his mind and continued to plead not guilty. The court set October 16 as the new trial date for both dockets to be tried separately.

On September 23, the State filed a motion to join all counts of Docket 34-412 with count (3) firearm theft and count (4) Kia theft of Docket 34-461. The State argued that the gun and shell casing evidence used in connection with the aggravated burglary of Docket 34-412 was needed by the State to prove the thefts of the firearm and Kia in Docket 34-461. The district court denied the motion for joinder because it was too close to trial.

The October 16 trial date also meant that all pretrial memos had to be filed no later than September 26. But the State did not file its memo until September 30. Additionally, the State began producing a voluminous amount of discovery to Carabajal on September 26. Carabajal objected via motions in limine to the untimely discovery (595 downloads) and pretrial memo (that mentioned for the first time a witness named Jerika Pino whom the State wanted to call to testify that Carabajal had stolen the Taurus pistol from her while he babysat for her and who would testify of Carabajal’s reputation for criminal activity).

Instead of responding to the motions in limine, the State filed its Rule 48 motion to dismiss Dockets 34-412 and 34-461 without prejudice. In support, it stated in pertinent part that: “All counts ... will be immediately re-filed in a single docket. The allegations in each of the above-referenced dockets all relate to a single series of criminal behavior and should be tried together as a single trial unit....” On the same date, the State filed a new information charging Carabajal that included the seven counts from both dockets. Over Carabajal’s objection, the district court entered orders of dismissal without prejudice for Dockets 34-412 and 34-461, noting on each order that the State had provided a reason for its motions, and the court granted the motions on that basis. Carabajal appealed the orders of dismissal.

The Wyoming Supreme Court observed “Rule 48(a) provides in relevant part that ‘the state may, by leave of court, file a dismissal of an indictment, information or citation, and the prosecution shall thereupon terminate.” The discretion of the district court to deny a Rule 48 motion is limited to situations where granting the motion “would be clearly contrary to manifest public interest, determined by whether the prosecutor’s motion to dismiss was made in bad faith.” United States v. Goodson, 204 F.3d 508 (4th Cir. 2000).

But the “leave of court” requirement is particularly important when the defendant objects to the dismissal because the primary objective of the requirement is “to prevent harassment of a defendant by charging, and then dismissing without placing a defendant in jeopardy.” Graham v. State, 247 P.3d 872 (Wyo. 2011). Rule 48(a) is intended to check the common law power of prosecutors to enter a nolle prosequi before jeopardy attaches and then proceed to reindict the defendant on basically the same charges and evidence. United States v. Salinas, 693 F.2d 348 (5th Cir. 1982). In exercising its discretion, the court must assure the fair administration of justice. United States v. Strayer, 846 F.2d 1262 (10th Cir. 1988).

In order to carry out the purpose of the rule, the trial court must be informed of the prosecutor’s reasons for dismissing the indictment and the factual basis for the prosecutor’s decision. Id. The trial court must deny the motion if it has an affirmative reason to believe the motion to dismiss was motivated by considerations contrary to the public interest. Salinas. One such affirmative reason is prosecutorial harassment. Id. Prosecutorial harassment may be found when the government charges, dismisses, and subsequently commences another prosecution at a different time or place deemed more favorable to the prosecution. Id. That is, a Rule 48(a) dismissal without prejudice should be denied “if the reason for the dismissal is to gain a tactical advantage.” United States v. Pitts, 331 F.R.D. 199 (D.D.C. 2019).

In Salinas, the government moved to dismiss the charges after a jury was selected but before it was sworn because the government believed some members of the jury knew the defendant. The defendant was then tried and convicted on a superseding indictment before a different jury. The Fifth Circuit reversed because, in a nutshell, the government used the dismissal to gain a tactical advantage of having a jury more to its liking. The government could have conducted further voir dire of the first jury; challenged suspected jurors for cause; or utilized the alternate jurors. Instead, the government decided to “repudiate the whole proceeding it had initiated ... to escape from a position of less advantage ... as a result of its own election.” Salinas.

In the instant case, the State realized it was in a weakened position with regard to the theft of the gun and the shooting of the vehicle. Its motion to join the charges of the separate dockets and thereby strengthen its case was denied as untimely. And it was untimely because of the State’s own earlier inaction. (The Court rejected the State’s argument that its failure to move for joinder sooner was caused by Carabajal’s plea negotiations as those negotiations had no bearing on the State’s presentation of its case, and the record indicated the date for the motion of joinder expired before Carabajal indicated he wanted to change his plea.)

In order to circumvent the denial of joinder – as well as dodge its blunder of untimely discovery in identifying witness Pino – the State moved for dismissal without prejudice of all the charges and then refiled those same charges in one information to be tried together and would thereby reset the time limitation for discovery, etc. In short, the State’s reason for filing the Rule 48 motions was to gain tactical advantages. Consequently, the district court abused its discretion when it granted the motions and ordered dismissal without prejudice.

When a court finds that the motivation for a Rule 48 motion seeking dismissal without prejudice is contrary to the public interest, the remedy is to dismiss those charges with prejudice in order to give effect to the purpose of Rule 48, i.e., prevent harassment of the defendant via charging, dismissing, and recharging of the same charges. In re United States, 345 F.3d 450 (7th Cir. 2003).

Accordingly, the Court reversed the district court’s orders and remanded for entry of an order dismissing with prejudice the charges in Dockets 34-412 and 34-461. See: Carabajal v. State, 469 P.3d 389 (Wyo. 2020).

Writer’s notes: The Court observed in a footnote that the district court in this case was not required to dismiss the charges with prejudice – the district court should have denied the motions, allowing the State the option of moving to dismiss with prejudice or proceeding to trial. Also note, although this is a Wyoming state court decision, it is relevant to readers with a case involving similar issues in federal court because Wyoming follows federal court precedent regarding its rules of criminal procedure.

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