As the daily newspaper reports today, the retrial of Kent Hovind and Paul John Hansen on fraud and conspiracy charges was scheduled to commence on Monday. However, the U.S. Attorney Pamela Marsh has moved to dismiss the charges.
Here is the text of the motion that was filed late last week:
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
UNITED STATES OF AMERICA
v. CASE NO. 3:14cr91/MCR
KENT E. HOVIND and
PAUL JOHN HANSEN
GOVERNMENT’S MOTION TO DISMISS COUNTS ONE, TWO AND FOUR OF THE SUPERSEDING INDICTMENT WITHOUT PREJUDICE
COMES NOW the United States of America, by and through the undersigned Assistant United States Attorney, and files this Motion to Dismiss Counts One, Two, and Four of the Superseding Indictment Without Prejudice pursuant to Federal Rules of Criminal Procedure, Rule 48(a).
1. On May 11 and May 12, 2015, the government received the defendants’ motions to dismiss. (Docs. 180 and 184).
2. The defendants’ motions to dismiss were filed beyond the deadlines previously set by the Court for the filing of such motions.
3. The defendants’ motions raise issues regarding the technical sufficiency of the Superseding Indictment, including the adequacy of notice. (Docs. 180 and 184).
4. Due to the issues raised by the defendants, and the timing of their motions, the government respectfully moves to dismiss Counts One, Two, and Four of the Superseding Indictment without prejudice, pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure.
The government submits that the relief sought is in the interest of justice.
As the government’s motion is made prior to trial, the defendants’ consent is not required. Rule 48(a) provides, 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.
The “leave of court†requirement has been interpreted to support the government providing the Court with the reason for its request. United States v. Dyal, 868 F. 2d 424 (11th Cir. 1989); United States v. Salinas, 693 F.2d 348 (5th Cir. 1982); United States v. Cowan, 524 F.2d 504 (5th Cir. 1975).
In Cowan, the Fifth Circuit noted that, The Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated.
The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest. Cowan, 524 F.2d at 513.
There is a presumption that the government acts in good faith. United States v. Collins, 300 Fed. Appx. 663, 666 (11th Cir. 2008), citing Salinas, 693 F.2d at 352. 5. Therefore, the government moves to Dismiss Counts One, Two, and Four of the Superseding Indictment without prejudice, in the interest of justice, and in order to ensure that the defendants are adequately apprised, with reasonable certainty, of the nature of the accusation.
WHEREFORE, the undersigned Assistant United States Attorney files this Motion to Dismiss Counts One, Two, and Four of the Superseding Indictment Without Prejudice.
Respectfully submitted,
PAMELA C. MARSH
United States Attorney
/s/ Tiffany H. Eggers
TIFFANY H. EGGERS
Assistant United States Attorney
For background, read Forbes “Looks Like No Trial On Monday.”
