Case 3:15-cr-05351-RJB Document 227 Filed 03/03/17 Page 1 of 4 1 The Honorable Robert J. Bryan 2 3 4 5 6 7 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 UNITED STATES OF AMERICA, 11 Plaintiff, GOVERNMENT’S UNOPPOSED MOTION TO DISMISS INDICTMENT WITHOUT PREJUDICE 12 13 14 15 NO. CR15-5351RJB v. JAY MICHAUD, Defendant. Noting Date: March 17, 2017 16 17 18 I. INTRODUCTION Pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure, the 19 government moves to dismiss the indictment in this case without prejudice. The 20 suppression order entered by the Court in May 2016 has deprived the government of the 21 evidence needed to establish Defendant Jay Michaud’s guilt beyond a reasonable doubt at 22 trial. Because the government remains unwilling to disclose certain discovery related to 23 the FBI’s deployment of a “Network Investigative Technique” (“NIT”) as part of its 24 investigation into the Playpen child pornography site, the government has no choice but 25 to seek dismissal of the indictment. The government fully and forcefully litigated the discovery issue that gave rise to 26 27 the Court’s suppression order. It has undertaken this litigation in good faith and in an 28 Government’s Unopposed Motion to Dismiss Indictment Without Prejudice - 1 United States v. Michaud CR15-5351RJB UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 Case 3:15-cr-05351-RJB Document 227 Filed 03/03/17 Page 2 of 4 1 effort to balance the many competing interests that are at play when sensitive law 2 enforcement technology becomes the subject of a request for criminal discovery. And 3 dismissal without prejudice is therefore warranted. Counsel for the United States has 4 conferred with counsel for the defendant, Colin Fieman, who has stated that Defendant 5 does not oppose the government’s request. 6 II. DISCUSSION The Ninth Circuit has long held that Rule 48(a) requires dismissal without 7 8 prejudice “provided [the government] is not acting in bad faith.” United States v. 9 Hayden, 860 F.2d 1483, 1488 (9th Cir. 1988); see also United States v. W.R. Grace, 429 10 F. Supp. 2d 1207, 1247 (D. Mont. 2006) (“Dismissal under Rule 48(a) is without 11 prejudice unless the court finds that the dismissal is sought for some improper purpose.”). 12 Indeed, a district court is “‘duty bound’ to grant the government’s Rule 48(a) motion to 13 dismiss an indictment without prejudice unless ‘it specifically determines that the 14 government is operating in bad faith’ in pursuing the motion. United States v. Mujahid, 15 491 F. App'x 859, 860 (9th Cir. 2012) (quoting Hayden, 860 F.2d at 1487). The government must now choose between disclosure of classified information 16 17 and dismissal of its indictment. Disclosure is not currently an option. Dismissal without 18 prejudice leaves open the possibility that the government could bring new charges should 19 there come a time within the statute of limitations when and the government be in a 20 position to provide the requested discovery. 21 // 22 // 23 // 24 // 25 26 // 27 // 28 Government’s Unopposed Motion to Dismiss Indictment Without Prejudice - 2 United States v. Michaud CR15-5351RJB UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 Case 3:15-cr-05351-RJB Document 227 Filed 03/03/17 Page 3 of 4 1 The government has not sought unfair advantage over Michaud, nor has it acted 2 with any improper motive. It simply acted to protect highly sensitive information from 3 criminal discovery as was its obligation. The Court should therefore dismiss this case 4 without prejudice. 5 6 DATED this 3rd day of March, 2017. Respectfully submitted, 7 8 9 ANNETTE L. HAYES United States Attorney 10 11 12 13 14 15 16 17 /s/ Matthew P. Hampton HELEN J. BRUNNER MICHAEL DION MATTHEW P. HAMPTON Assistants United States Attorneys 700 Stewart Street, Suite 5220 Seattle, Washington 98101 Telephone: (206) 553-7970 Fax: (206) 553-0755 E-mail: matthew.hampton@usdoj.gov 18 19 20 21 22 23 24 25 26 27 28 Government’s Unopposed Motion to Dismiss Indictment Without Prejudice - 3 United States v. Michaud CR15-5351RJB UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 Case 3:15-cr-05351-RJB Document 227 Filed 03/03/17 Page 4 of 4 1 2 CERTIFICATE OF SERVICE I hereby certify that on March 3, 2017, I electronically filed the foregoing with the 3 Clerk of the Court using the CM/ECF system which will send notification of such filing 4 to the attorney(s) of record for the defendant. 5 6 7 8 9 10 11 s/Emily Miller EMILY MILLER Legal Assistant United States Attorney’s Office 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 Phone: (206) 553-2267 FAX: (206) 553-0755 E-mail: emily.miller@usdoj.gov 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Government’s Unopposed Motion to Dismiss Indictment Without Prejudice - 4 United States v. Michaud CR15-5351RJB UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970