USA v. Rose

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America,
Plaintiff,
v.
Elizabeth Rose,
Defendant.
Case No. 26-mj-104-NEB-EMB
REPORT AND
RECOMMENDATION
Before the Court is the Government’s motion to dismiss, under Federal
Rule of Criminal Procedure 48(a), the misdemeanor information it filed
against Defendant Elizabeth Rose. (Dkt. No. 19.) Ms. Rose does not oppose
the motion. (Dkt. No. 23.) Considering the motion under 28 U.S.C. § 636 and
Local Rule 72.1(a)(3)(A), I recommend that the misdemeanor information be
dismissed without prejudice for the reasons below.
I. 	Background
On January 30, 2026, the Government charged Ms. Rose by
misdemeanor information with one count of violating 18 U.S.C. § 111(a).
(Dkt. No. 12.) Ms. Rose was scheduled for arraignment on the information on
March 2, 2026. (Dkt. No. 17.) But a few days before that, on February 28,
the Government filed the instant motion to dismiss. (Dkt. No. 19.) The
scheduled arraignment was therefore canceled. (Dkt. No. 20.) The
Government now brings this unopposed motion.
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II. 	Discussion
Rule 48(a) provides that “the government may, with leave of court,
dismiss an . . . information.” Generally, “a dismissal with leave of court is
considered to be without prejudice” and therefore “does not bar subsequent
prosecution for criminal acts described in that [information].” United States
v. DeMarrias, 487 F.2d 19, 21 (8th Cir. 1973). But the Rule’s leave-of-court
requirement serves “‘to protect a defendant from prosecutorial harassment,
e.g., charging, dismissing, and recharging.” United States v. Jacobo-Zavala,
241 F.3d 1009, 1012 (8th Cir. 2001) (quoting Rinaldi v. United States, 434
U.S. 22, 20 n.15 (1977)). When, as here, a defendant consents to dismissal,
the leave-of-court requirement calls on the Court to assess “whether the
government’s motion is contrary to manifest public interest because it is not
based in the prosecutor’s good faith discharge of his duties.” Id. at 1013.
Here, the Government offers no reason for its dismissal request in its
bare-bones motion. But Ms. Rose states that “there is no evidence that the
government’s motion is not made in good faith.” (Dkt. No. 23 at 2.) In a
footnote, she indicates that any risk of prosecutorial harassment through
recharging is mitigated by her ability to seek dismissal of a subsequent
charge on the ground that this dismissal should have been with prejudice.
(Id. at 2, n.1 (citing United States v. Oliver, 950 F.3d 556 (8th Cir. 2020).)
She therefore consents to dismissal without prejudice here. (Id. at 1, 2.)
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Neither party addresses whether the Government bears the burden of
providing a factual basis for dismissal under Rule 48(a) or whether, instead,
the Court should presume that the Government seeks dismissal in good faith.
There is no binding authority from the Eighth Circuit on the question. Other
courts addressing the issue have held that “the better practice is for the
government to state its reasons for seeking dismissal contemporaneously
with its motion to dismiss under Rule 48(a)” but that it is not required to do
so and a “presumption of good faith” applies. See United States v. Dyal, 868
F.2d 424, 428 (11th Cir. 1989) (citing cases); United States v. Suazo, 14 F.4th
70, 73, 75 (1st Cir. 2021) (discussing application of rebuttable presumption of
good faith); United States v. Palomares, 119 F.3d 556 (7th Cir. 1997)
(affirming when district court determined government “is entitled to the
presumption that its motions to dismiss are grounded in good faith” and
rebuttal requires government to “bear[] the burden of persuading the court
that the reasons for the proposed dismissal are substantial.”)
I apply a presumption of good faith to the Government’s motion. I find
nothing in this record suggesting that the prosecutors failed to act in good
faith such that dismissal without prejudice would be “contrary to manifest
public interest.” Jacobo-Zavala, 241 F.3d at 1012 (quoting Rinaldi, 434 U.S.
at 20 n.15). I therefore recommend that this Court grant the Government’s
motion to dismiss without prejudice under Rule 48(a).
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RECOMMENDATION
Based on the foregoing and the files, records, and proceedings herein,
IT IS HEREBY RECOMMENDED THAT:
1. 	The Government’s Motion to Dismiss (Dkt. No. 19) be
GRANTED; and
2. 	The misdemeanor information (Dkt. No. 12) be DISMISSED
without prejudice.
Date: March 4, 2026
NOTICE
Filing Objections: This Report and Recommendation is not an order or
judgment of the District Court and is therefore not appealable directly to the
Eighth Circuit Court of Appeals.
Under Local Rule 72.2(b)(1), “a party may file and serve specific written
objections to a magistrate judge’s proposed finding and recommendations
within 14 days after being served a copy” of the Report and
Recommendation. A party may respond to those objections within 14 days
after being served a copy of the objections. See Local Rule 72.2(b)(2). All
objections and responses must comply with the word or line limits set forth in
Local Rule 72.2(c).
s/Elsa M. Bullard
Elsa M. Bullard
United States Magistrate Judge
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