December 5, 2013
UNITED STATES OF AMERICA, Plaintiff,
STEPHEN MOLEN, Defendant.
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
"Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." In the present case, it is unfortunate that the Assistant United States Attorney ("AUSA") responsible for this case has been reluctant to explain the basis for the decision to dismiss charges against the defendant. [ See Record No. 44; Transcript of 11/22/13 Re-Trial Conference.] And it is equally troubling that the AUSA now argues that this Court lacks authority to even question the government's rationale for its actions. [Record No. 45-1, pp. 5-7]
Although not proven, the charges in this case are quite serious and should be matters of great public concern. The indictment alleges that Defendant Stephen Molen, while performing duties as a deputy sheriff for Pulaski County, Kentucky, violated the civil rights of two unidentified citizen by assaulting them without justification. One assault allegedly occurred on October 2, 2009, while the second occurred approximately two years later. [Record No. 1; Indictment] There is no indication that any internal action was taken by Molen's employer to correct or punish this behavior. And based upon other evidence the government would seek to introduce at trial, it would appear that the defendant engaged in similar, alleged conduct over an extended period of time.
The matter was presented to a federal grand jury and that body determined that probable cause supported the two charges. Presumably, at the time the matter was presented for the grand jury's consideration, the government intended to prosecute the matter and considered the cost of doing so. The Court also assumes the United States evaluated the effect the prosecution would have on witnesses and victims of the alleged abusive conduct Two months later, a separate federal grand jury in the Western District of Kentucky returned a second indictment, charging Molen with a similar offense in that district. Again, the Court assumes the prosecuting authorities evaluated those same factors and determined that the grand jury's action was warranted under the facts presented.
The pre-trial conference in this case was scheduled for November 22, 2013. However, three days before that conference, the parties jointly moved the Court to continue the matter. For the first time, the parties disclosed that they had entered into a plea agreement addressing the charges in both districts. Under this agreement, Molen would enter a guilty plea to the charge in the Western District of Kentucky. In exchange, the two charges in the Eastern District of Kentucky would be dismissed. Further, the penalty negotiated by the parties would be binding on the Court under Rule 11 (c)(1)(C) of the Federal Rules of Criminal Procedure. Molen would be sentenced to a three-year term of probation and six months of"modified" home confinement Although these terms had been negotiated by the time of the November 22, 2013, pre-trial conference, Ron Walker, the Assistant United States Attorney attending the hearing and responsible for prosecuting the case, was very not forthcoming when initially asked to explain the details of the parties' agreement or the government's rationale in dismissing the charges filed in the Eastern District of Kentucky.
After some questioning by the Court, the following exchange occurred with AUSA Walker:
THE COURT: Would the United States intend to file along with - if that happens, would the United States intend to file a memorandum explaining why dismissal would be in the best interest of the public in this case? This is a civil rights case.
MR. WALKER: It is a civil rights case. We would advise the Court that the basis of the dismissal in this is we would have accomplished our goal in addressing the issue with Mr. Molen's employment, his employment as a law enforcement officer. And those were the primary factors that needed to be considered in this matter.
[Record No. 44; Transcript of 11/22/13 Pre-Trial Conference at p. 5] In otherwords, the United States was willing to tell the public that, as a result of its actions, the government had managed to have the defendant terminated from his current employment. Period.
And after expressing some concern, the Court indicated that further explanation would be necessary if the government, in fact, moved to dismiss the indictment
THE COURT: Well, I guess what I'm trying to signal to you - I will just state it straight out If - if you do file a motion to dismiss, and if it's not - it doesn't explain your rationale, we'll have a hearing so that any alleged victims can come into court, and you can explain to me why dismissal is in the best interest of the public. So I'll leave that to you. If you file a motion to dismiss, you can either explain the rationale in writing, or we can have a hearing on it.
[ Id. at p. 7]
Several days later, the government obtained approval of the binding plea agreement from the United States District Court for the Western District of Kentucky. It then filed with this Court on December 4, 2013, a pleading which was simply captioned "Motion." The relief identified and requested in the motion is ambiguous. However, it appears that the government seeks leave of Court to file a "Notice of Dismissal" under Rule 48(a) of the Federal Rules of Criminal Procedure. And it apparently presumes that the filing of this notice is enough to accomplish its goal of dismissing the action. It that is the government's assumption, it is clearly mistaken.
Criminal Rule 48 provides two methods for dismissing indictments, informations, or criminal complaints:
(a) By the Government. The 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.
(b) By the Court. The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in:
(1) presenting a charge to a rand jury;
(2) filing an information against a defendant; or
(3) bringing a defendant to trial.
(Italics added for emphasis.) Rule 48, Fed. R. Crim. P.
The language of Rule 48 clearly requires action by the Court in obtaining dismissal whether the action is taken under subparagraph (a) or (b). It is disingenuous to argue that dismissal occurs simply by the filing of a "notice" by the United States. In fact, while the government argues - on the one hand - that the Court has no role to play once it (i.e., the United States) determines to dismiss a criminal action, it admits - on the other hand - that the Court performs a very important function (i.e., determining whether the government is acting in bad faith or contrary to the manifest public interest).
In light of the United States' double-speak in this matter, the government should be cautioned that, while the primary focus of the Court's inquiry under Rule 48 is preventing government harassment of defendants, that is not the Court's only function. A primary function is not magically transformed into an exclusive function simply because the Department of Justice would like to limit the Court's oversight of its actions.
Likewise, the parties cannot limit the Court's role simply by agreeing to do so. Based on the clear language of Rule 48(a), the United States' assertion that this Court does not have discretion to deny dismissal of an indictment carries no weight This Court has the authority- and indeed the responsibility -to determine: (i) whether the United States' actions are contrary to the manifest public interest and (ii) whether the government is acting in bad faith. A positive finding regarding either issue may result in the denial of a motion to dismiss. While the Court's inquiry may be difficult (or perhaps impossible) where the government and the defendant are acting in concert, difficulty does not mean that the Court should turn a blind eye to potential improper" actions or actions which are clearly contrary to the public's interest
The Court comes very close to finding that the government's actions are contrary to manifest public interest. In response to the Court's directive, the United States offers several justifications for seeking dismissal of the charges returned by the federal grand jury. First, it represents that the "global disposition" is in the interest of justice and the public because the defendant will be precluded from eve working in law enforcement again. Perhaps. But has the government considered the message it is sending to other law enforcement officials who might be inclined to render "rough justice" when no one is looking or, as alleged in the present case, while witnesses and other law enforcement officials are nearby? Does a tarm of probation and modified home detention cause others deputy sheriffs to think twice be fore abusing a belligerent detainee? The answer to these questions would not seem to favor or the United States' position. Contrary to its argument, the fact that the Defendant has publicly admitted that his assault on one victim was criminal and unjustified does not demonstrate that the government is "committed to protecting the civil rights of the citizens in this district" The government's actions merely demonstrate that it is willing to negotiate a deal very favorable to a defendant accused of a several very serious offenses. Likewise, the outcome cannot be said to "serve to deter other law enforcement officers from engaging in similar conduct" Reality belies the government's assertions.
Next, the United States contends that the outcome of the case maximizes limited judicial resources of the courts and the government. But wouldn't this assertion be correct in every circumstance in which similar action is taken? There is cost associated with every litigation matter. And here, there is no indication that the trial would be prolonged or unduly expensive. Most of the witnesses would appear to b e local and much of the 404(b) evidence the government would seek to introduce could be presented without a great deal of effort. The government's attorneys would, however, be required to prepare for trial during the holiday season. In short, this argument is weak at best.
Counsel for the United States also asserts that the decision in this matter was reached after weighing the likelihood of a conviction in light of the lack of corroborating video evidence. Instead of video evidence, the government would be required to rely upon the testimony of victims and other eyewitnesses as well as evidence of similar acts allegedly committed by Defendant Molen. But these facts were known at the time the matter was presented to the federal &and jury. And it is difficult to argue that evidence might not be admissible under Rule 404(b) (and, therefore, weaken the government's case) without first obtaining a ailing from the Court on the issue. While an adverse ruling might have tipped the balance in favor of the government's current position, the government never requested a ruling on this issue.
Finally, the United States suggests that consideration for the victims favors the current resolution. It states that, had the matter proceeded to trial, it would have required victims and witnesses "to repeatedly offer personally difficult testimony and undergo potentially embarrassing questions on cross-examination." And while it fails to offer any details supporting its assertion, the government also fails to explain how this would be substantially different than the situation presented in most cases (civil and criminal). It is true that civil rights cases are difficult and often require the presentation of testimony that is unpleasing to witnesses, to jurors charged with weighing the evidence, to attorneys, and to trial judges who must preside over the matter. But under this rationale, the government will also be less inclined to prosecute other equally-difficult cases ( i.e., child pornography crimes). Hopefully, "difficulty" has not become the new standard for prosecution in the Eastern District of Kentucky.
In summary, this Court is clearly troubled with the manner in which this case has been handled by the attorneys representing the United States. While the public has an interest in the final resolution of criminal matters, it has a more compelling interest in seeing that justice is done. And undoubtedly, the public interest is not served when the government refuses to disclose the rationale for its actions. Telling the Court that it has no role in overseeing the dismissal of criminal actions is not an acceptable response by the office of the United States Attorney for this district.
The government cannot legitimately argue that the outcome reached in this case will provide any measure of deterrence to others who might be inclined to commit similar offenses. Likewise, the outcome does not provide any measure of protection to the alleged victims. Perhaps a jury would have returned a not guilty verdict on the charges in this case, but at this point, the public will be left to speculate what the result would have been following trial.
But even though this Court has great concerns based on the reasons offered by the government for its actions, it cannot conclude that these actions were taken in bad faith. Likewise, the Court cannot conclude that the outcome is "contrary to the manifest public interest." The government is correct in one respect. The United States is not required to prove that its actions are in the best interest of the public. It need only provide sufficient reasons to overcome a very low hurdle due to the limited discretion afforded to the Court under Rule 48(a). While the government might be thankful that its burden is so low, it should not be proud of its actions.
Based on the foregoing discussion, it is ORDERED as follows:
1. The United States' motion [Record No. 45] is GRANTED.
2. The Indictment filed against Defendant Steven Molen is DISMISSED, without prejudice.
3. The Defendant's Motion In Limine to Exclude Evidence Under FRE 404(b) [Record No. 43] is DENIED as moot.
4. The trial of this action, previously scheduled to begin on December 17, 2013, is VACATED and CANCELED.
5. This action is DISMISSED and STRICKEN from the Court's docket