IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION Criminal No.: 5:14-CR-00019 UNITED STATES OF AMERICA v. GEORGE HENRY COVARRUBAIZ MOTION TO DISMISS WITHOUT PREJUDICE Pursuant to Federal Rule of Criminal Procedure 48(a), the United States respectfully moves the Court for an order dismissing this case without prejudice. As grounds for this motion, the United States asserts: 1. Counsel for the defendant has been informed of this motion and does not oppose the dismissal without prejudice. 2. Rule 48(a) permits the government, with leave of the Court, to dismiss an indictment at any time prior to trial. A Rule 48(a) motion “must” be granted “absent a finding of bad faith or disservice to the public interest.” United States v. Perate, 719 F.2d 706, 710 (4th Cir. 1983) (citing Rinaldi v. United States, 434 U.S. 22, 30, 98 S.Ct. 81, 85, 54 L.Ed.2d 207 (1977)). Absent a constitutional violation, dismissals are without prejudice. See United States v. Clay, 481 F.2d 133, 135 (7th Cir. 1973) (Stevens, J.) See also United States v. Taylor, 487 U.S. 326, 342, 108 S.Ct. 2413, 2422 (1988) (“Dismissal without prejudice is not a toothless sanction.”). 3. As the Court is aware, this case stems from a multi-year, California state wiretap investigation. As part of that investigation, law enforcement officers have 1 Case 5:14-cr-00019-MFU Document 126 Filed 03/12/15 Page 1 of 3 Pageid#: 2385 arrested several individuals, who have been or are currently being prosecuted in California state court on various charges. In preparation for trial in this matter, the government has re-evaluated the evidence in this case, including all evidence and potential testimony of any civilian witnesses. Counsel for the government has spoken with key agents in both Virginia and California and with the state prosecutor in California. Based on this review, the government has decided to terminate its prosecution of this defendant. WHEREFORE, the United States respectfully moves for leave of the Court to dismiss the indictment in United States v. Covarrubiaz, case no. 5:14-cr-00019, without prejudice. Dated: March 12, 2015 Respectfully submitted, ANTHONY P. GIORNO Acting United States Attorney s/ Heather L. Carlton HEATHER L. CARLTON Assistant United States Attorney United States Attorney's Office 116 N. Main Street Harrisonburg, VA 22802 (540) 432-6636 heather.carlton@usdoj.gov 2 Case 5:14-cr-00019-MFU Document 126 Filed 03/12/15 Page 2 of 3 Pageid#: 2386 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion to Dismiss without Prejudice has been electronically filed by the court’s CM/ECF system and thus served on all parties of record on this 12th day of March 2015. s/ Heather L. Carlton HEATHER L. CARLTON Assistant United States Attorney 3 Case 5:14-cr-00019-MFU Document 126 Filed 03/12/15 Page 3 of 3 Pageid#: 2387 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION UNITED STATES OF AMERICA Criminal No.: 5:14-CR-00019 v. GEORGE HENRY COVARRUBAIZ ORDER This matter is before the court on the government’s Motion to Dismiss Without Prejudice. In this motion, the government seeks the consent of the court, pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure, to dismiss the indictment and to do so without prejudice. The defendant does not oppose this motion nor the dismissal without prejudice. After a review of all applicable law and the government’s grounds for the proposed dismissal, and having heard substantial evidence of this case a various motion hearings, the court finds good cause for the dismissal without prejudice. Accordingly, the Motion to Dismiss Without Prejudice is GRANTED. The court ORDERS the clerk to dismiss the indictment without prejudice and ORDERS the release of the defendant forthwith. It is SO ORDERED. Entered this ___ day of March 2015. __________________________________ Michael Urbanski United States District Judge Case 5:14-cr-00019-MFU Document 126-1 Filed 03/12/15 Page 1 of 1 Pageid#: 2388