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DISTRIC T OF COLUMBIA COURT OF APPEALS
No. 18

- CF

- 1218 Q UINTON W ORKMAN , A PPELLANT ,

v . U

NITED S TATES , A PPELLEE
. Appeal from the Superior Court of the District of Columbia ( CF2

- 14787

- 15 ) (Hon. Ronna L

. B e ck , Trial Judge) ( Argued April 13 , 2021 Decided July 29, 2021 ) William Collins , Public Defender Service, with whom Samia Fam and Jaclyn S. Frankfurt , Public Defender Service, were on the brief s , for appellant

. Ann M. Carroll , Assistant United States Attorney, with whom Michael Sherwin , Acting United S tates Attorney at the time the brief was filed , and Elizabeth Trosman and John P. Mannarino , Assistant United States Attorneys, were on the brief, for appellee. Before G LICKMAN , T HOMPSON , and M C L EESE , Associate Judges

.

M C L EESE , Associate Judge : Appellant Quinton Workman challenges his convictions for firearm offenses, arguing that the trial court erroneously permitted2 the United States to prosecute him on a second indictment after the first indictment was dismissed without prejudice . We affirm.

I.

Except as indicated , the following appear s to be undisputed. P oli ce officers arrested Mr. Workman in October 2015 and charged him with offenses including unlawful possession of a firearm . The police swabbed both the firearm and Mr. Workman’s cheek for DNA

. Mr. Workman was preventively detained in this case pending trial , and he also was det ained in a separate case in which he had been on parole at the time of his arrest in this case

.

Mr. Workman’s trial was initially scheduled for early March 2016, but t he originally assigned prosecutor d id not submit the DNA evidence for testing until early February 2016

. A new ly assigned prosecutor r equested a continuance to complete DNA testing , but the trial court denied that request

. The prosecutor asked the lab to expedite the DNA testing. Two days before the scheduled trial date , the prosecutor received the DNA results and turned them over to the defense

. Mr. Workman filed a motion to exclude the DNA results on the ground that the Unit ed
States had failed to disclose the DNA results to Mr. Workman in a timely manner

.3 At a hearing on the scheduled trial date , the prosecutor stated that the United
State s was re ady to proceed , with the caveat that some property would arrive later that day

. T he trial court granted the motion to exclude t he DNA evidence , because Mr. Workman would be unduly prejudiced by having to choose “ between remaining detained and securing an expert to look at the government’ s a nalysis or going forward to trial without being prepared to meet the expert ’ s testimony. ”

Following t hat evidentiary ruling, the trial court asked if the United States remained ready to proceed . The prosecutor indicated that the United States was no longer ready to proceed, “ because of the lack of property and because of the DNA evidence not being introduced.” At the trial court’s invitation, defense counsel moved to dismiss the case for want of prosecution

. Defense counsel did not ask that the dism issal be with prejudice, which would have barred further prosecution. United States v. Stephenson , 891 A.2d 1076, 1082 (D.C. 2006)

. To the contrary, defense counsel appear ed to acknowledge that Mr. Workman would likely be reindicted , stating , “I do think the government is announcing not ready to circumvent the Court’s order precluding the expert testimony.” T he trial court dismissed the indictment without prejudice , and defense counsel said, “Thank you, Your Honor.” After the dismissal, Mr. Workma n was released in the present case, but he initially4
remained in detention in his other case pending resolution of his parole status

. H e

was later released in the other case

.

After the United States reindicted Mr. Workman , Mr. Workman filed a motion to dismiss the second indictment with prejudice, arguing that the United States was harassing him by circumventing the trial court’s o rder s denying a continuance and excluding the DNA evidence

. The trial court denied the motion. The trial court explained that , at the time of the original dismissal without prejudice, the United States had the DNA evidence in hand, but the trial court had determined that it would be unduly prejudicial to continue to hold Mr. Workman and require him to choose between a delay in the trial or proceeding to trial without adequate time to respond to the DNA evidence. The trial court further found that the United States had not acted in bad faith. The trial court also noted that the consequence of its initial dis missal had been that Mr. Workman was released in the present case. When defense counsel pointed out that Mr. Workman had initially remained detained in the parole matter, the trial court stated that it had no control over the parole matter.

At trial , the United States introduced evidence that Mr. Workma n was stopped for driving a car with stolen tags; that a revolver was in the car’s center console; that Mr. Workman could not be excluded as a source of DNA on the revolver; and that5
the chance of rando mly selecting an unrelated person who could not be so excluded

was at mo s t one in twenty

- two quintillion

. The parties stipulated that Mr. Workman had a prior convictio n for an offense punishable by more than a year of imprisonment , did not have a license to carry a pistol in the District of Columbia, and had no valid firearm registration in the District of Columbia . The jury found Mr. Workman guilty of two firearm offenses.

II.

Super. Ct. Crim. R. 48(a)(2) requires leave of the court before the government may dismiss an indictment . Relying on that provision, Mr. Workman argues that the trial court erred in allowing the United States to prosecute him under the second indictment . The United States argues, however, that R ule 48(a)(2) does not a ppl y , because that rule applies to government motions to dismiss , and this case involves defense motion s to dismiss. Mr. Workman responds by arguing that the United
States failed to preserve this point in the trial court and that, in any event, the United
St ates in e ffect moved to dismiss on the original trial date , by declaring that it was not ready to proceed with trial . We need not decide th e latter two issue s . Instead,

we assume without deciding that this case is governed by Rule 48(a)(2). We similarly assume that Mr. Workman adequately preserved an objection in the trial6

court , al though Mr. Workman moved for dismissal of the original indictment without explicitly aski n g that the dismissal be with prejudice and d id not explicitly object at the time to d ismiss al without prejudice.

Given those assumptions, i t appears to be undisputed that we review the trial court’s ruling for abuse of discretion

. Cf., e.g. , Rinaldi v. United States , 434 U.S. 22, 32 (1977) (per curiam) ( reviewing trial

- court ruling under Fed. R. Crim. P. 48(a) for abuse of discretion ) ; Martin v. Santorini Cap

. , LLC , 236 A.3d 386, 393 n.3 (D.C. 2020) ( when interpreting local rule, court looks to federal decisions interpreting similar federal rule for guidance ) ; Ferrell v. United States , 9 9 0 A.2d 1015, 1020 n.4 (D.C. 2010) (relying o n federal cases interpreting Fed. R. Crim. P. 48(a), because “federal Rule 48(a) functions in a manner similar to our local rule”). We see no abuse of discretion in this case.

As previously noted, R ule 48(a) (2) permits the government to dismiss an ind ictment with leave of the court . “Such a dismissal is without prejudice unless otherwise stated

. ” Super. Ct. Crim. R. 48(a)(2). Ordinarily, the government can rei ndict the defend ant after a dismissal without prejudice

. E.g. , United States v.
Hector , 298 A.2d 504, 504

- 05 (D.C. 1972)

. The trial court has the responsibility, however, to prevent dismissals without prejudice and subsequent reindictment s that7
constitute “harassment” of a defendant. United States v. Kennedy , 220 A.2d 322,
32 3 (D.C. 1966) ; see also, e.g. , 3B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 801 ( 4th ed. 2021 ) (under Fed. R. Crim. P. 48(a), trial court should deny motion to dismis s without prejudice if motion is made for “improper purpose, such as harassment of the defendant ”).

A.

Mr. Workman argues for a flat rule that the government engages in impermissible harassment any time it dismisses an indictment in the hope of later reindicting the defendant under more favorable circumstances

. There is s upport for that v iew. See, e.g. , United States v. Pitts , 331 F.R.D. 199, 204 (D.D.C. 2019) ( “[T]he government is not free to indict, dismiss, and reindict solely to achieve a more fa vorable prosecutorial posture .”); cf. Kennedy , 220 A.2d at 323 (s tating generally that “[t]he purpose of Rule 48(a) was to prevent the harassment of a defendant caused by charging, dismissing and recharging him without placing him in jeopardy”)

. For sever al reasons, however, w e conclude that the flat rule advocated by Mr. Workman would be both unwarranted and contrary to the weight of authority.8 First, a s a textual matter , Rule 48(a)(2) provides that dismissal s on a government motion will be without prej udice unless the trial court state s otherwise

. Super. Ct. Crim. R. 48(a)(2) (“Such a dismissal is without prejudice unless otherwise stated.”)

. Th at defaul t seems incompatible with Mr. Workman’s position that the government is flatly barred from dismissing a case without prejudice in the hope of possibly resuming prosecution later under more favorable circumstances.

Second, it therefore should not be surprising that decisions of this court and many other courts have freque ntly used much narrower language when describing the kinds of government dismissals that should be pr ohibited under Rule 48(a). See,
e.g. , Ferrell , 990 A.2d at 1015 n.4 ( citing with approval case explaining that “t he principal purpose of the leave of cour t requirement of Fed. R. Crim. P. 48(a) is to protect a defendant from the government ’ s harassing him by repeatedly filing charges and then dismissing them before they are adjudicated ”) (emphasis added and internal quotation marks omitted); District of Col umbia v. Weams , 208 A. 2 d 617 , 618 (D.C. 1965) (prosecutor may not dismiss information “in a manner that is scandalous, corrupt, or capricious and vexatiously repetitious”) (internal quotation marks omitted) ; United States v. Fokker Serv s . B.V. , 818 F.3d 73 3, 742 (D.C. Cir. 2016) ( “A court thus reviews the prosecution’s motion under Rule 48(a) primarily to guard against the prospect that dismissal is part of a scheme of prosecutorial9 harassment of the defendant through repeated efforts to bring

— and then dismiss

— charges. ” ) (internal quotation marks omitted); United States v. Jones , 664 F.3d 966, 973 (5th Cir. 2011) (dismissal permitted unless prosecutor is motivated by considerations “clearly contrary to manifest public interest” ; trial court must start wi th presumption of good faith) (internal quotation marks omitted) ; United States v. Palomares , 119 F.3d 556, 558 (7th Cir. 1997) ( “key factor s” in evaluating Rule 48(a) motion to dismiss are “government’s reasons and good faith” )

.

Third, focusing on outco mes rather than language, a number of appellate decisions have upheld trial

- court orders refus ing to dismiss reindictments with prejudice in circumstances that would be foreclosed under the flat rule that Mr. Workman advocates

. See, e.g. , Jones , 664 F.3d at 973 (trial court did not abuse its discretion by refusing to dismiss reindictment where United States dismissed original indictment without prejudice in order to add other defendants and charges , and to move prosecution to different division nearer to location of charged offenses); United States v. Hayden , 860 F.2d 1483, 1488 (9 th Cir. 1988) (trial court did not abuse discretion in refusing to dismiss reindictment with prejudice where United States dismissed original indictment without prejudice in orde r to investigate additional information provided by cooperating witness and potentially bring additional charges against defendant); United States v. Feldhacker , 849 F.2d 293,10 295 (8th Cir. 1988) (trial court did not abuse discretion in refusing to dismiss reindictment with prejudice where United States dismissed original indictment without prejudice after trial court suppressed evidence, weakening United States’s

case ); United States v. Strayer , 846 F.2d 1262, 126 4

- 66 (10 th Cir. 1988) (trial court did not abuse discretion in refusing to dismiss reindictment with prejudice where United States dismissed original indictment without prejudice in order to fix defects in indictment) ; c f. United States v. Goodson , 204 F.3d 508, 512

- 16 ( 4th Cir. 2000) (where United States was unprepared for trial due to absence of essential witness, trial court abused discretion by denying United States’s motion to dismiss under Rule 48(a) and instead granting defendant’s motion to dismiss with prejudice ; trial court was required to grant United States’s motion in absence of bad faith, which was not present)

.

In sum, we hold that the second indictment in this case was not precluded

s imply because , at the time of the dismissal of the original indictment without prejudice , the United States hope d to prosecut e Mr. Workman later under more favorable circumstances.

Turning to the particular circumstances of this case , we conclude that the trial court exercised its discretion permissibly. We first consider the trial court’s initial11 decision to grant a dismissal with out prejudice. The United States had provided Mr. Workman with critical DNA evidence just before trial. Appropriately, t he trial court was unwilling to require Mr. Workman to start trial without having an adequa te opportunity to respon d to that DNA evidence. The trial court also understandably was reluctant to grant the United States’s motion for a continuance, give n that Mr. Workman had already been preventatively detained for more than the one hundred days ord inarily permitted. D.C. Code § 23

- 1322(h)(1) (2012 Repl.)

. In our view,

t he trial court could permissibly have addressed the situation by granting a continuance and ordering that Mr. Workman be released in this case pending the continued trial date. See , e.g. , Super. Ct. Crim. R. 16(d)(2)(B) (remedies for discovery violation include granting of continuance); Ashby v. United States , 199 A.3d 634, 646

- 47 (D.C. 2019) (trial

- court decision regarding discovery sanctions reviewed for abuse of discretion; “[T]he range of available sanctions is extremely broad, with the only real limitation being that a sanction must be just under the circumstances.”) (brackets and internal quotation marks omitted); Moctar v. United
States , 718 A.2d 1063, 1065 (D.C. 1998) (“ [T] he grant or denial of a continuance rests within the sound discretion of the trial judge. ”)

. Instead , the trial court went one step further to protect Mr. Workman’s interests, by dismissing the original indictment without prejudice. The partie s and th e trial court appear to have understood that dismiss al without prejudice would permit the United States to12
reindict and to use the DNA evidence in Mr. Work m an’s prosecution, after Mr. Workman had an adequate chance to prepare to respond to that evidence. By dismissing the indictment , rather than simply releasing Mr. Workman in this case pending trial , however, the trial court placed on the United States the additional burden of obtaining a new indictment

. The trial court also made it possible for Mr. Work man to be released from custody if Mr. Workman co u ld resolve his parole

matter. Finally, we note the absence of a clear contemporaneous objection from Mr. Workman to the trial court’s decision to dismiss the original indictment without prejudice. See, e.g. , Inmates of Suffolk Cnty. Jail v. Eisenstadt , 518 F.2d 1241, 1243 (1 st Cir. 1975) (in determining whether trial court abused discretion, court of appeals considers absence of specific objection). In sum, w e see no abuse of discretion in the trial cou rt’s initial ruling

.

Our conclusion t hat the trial court did not abuse its discretion by dismissing the original indictment without prejudice is very important to our further conclusion that the trial court did not abuse its discretion by declining to di smiss the new i ndictment with prejudice. Nothing of significance had changed since the trial court’s ini ti al ruling. Rather, th e United States had simply done what the trial court and the parties understood , at the time of the initial dismissal without p rejudice , that the United States c ould do. In the absence of change d circumstances, the trial court13 was not required to retroactively convert th e initial dismissal without prejudice into a dismissal with prejudice

.

We are not persuaded by Mr. Workman’ s r emaining arguments to the contrary.

First, M r. Workman argues that the new indictment was an attempt to circumvent the trial court’s ruling s e xcluding the DNA evidence and denying a continuance

. We d isagree

. The trial court’s ruling excluding the DNA evidence

was explicitly tied to the particular circumstances at the time of the ruling. In addition, the trial court did not deny a continuance because it had decided that it was critical that the matter be tried immediately, without the DNA evidence. Rather, the trial court thought it would be unfair to make Mr. Workman choose between going to trial when he was not ready to meet critical evidence and remaining detained in this case during a continuance. The tri al court thus picked a different path: dismissing the indictment without prejudice, which obviously permitted the United States to introduce the DNA evidence at a later trial if the United States reindicted Mr. Workman. In sum, the trial court reasonably did not view th e United States’s conduct as an end run around the trial court’s earlier ruling s
.14 Second, Mr. Workman argues that the trial court impermissibly considered the prosecutor ’s subjective good faith . We conclude otherwise . Numerous courts have held that the presence or absence of good faith is important in determining whether dismissal without prejudice and prosecution on a new indictment are permissible. See, e.g. , Palomares , 119 F.3d at 558 ( “key factors” in evaluating Rule 48(a) motion to dismiss are “government’s reasons and good faith” ) ; United State s v. Salinas , 693 F.2d 348, 352 (5th Cir. 1982) ( presuming goo d faith and discussing prosecutor’s motivation)

.

Mr. Workman argues, however, that the Supreme Court’s decision in Rinaldi , 434 U.S. at 30, indicates that it is irrelevant whether the government’s dismissal is in good faith or bad faith. To the contrary, t he Supreme Court in Rinaldi explicitly considered whether the United States was ac ting i n good faith or bad faith when it sought to dismiss the indictment

. Id. ( “[T]he record has not disclosed (and we will not presume) bad faith on the part of the Government at the time it sought leave to dismiss the indictment

. . . . ” ). The comment up on which Mr. Workman relies was making a different point: that the relevant issue was not whether the original decision to prosecut e was made in bad faith. Id. (“ The salient issue, however, is not whether the decision to maintain the federal prosecutio n was made in bad faith but15
rather whether the Government ’ s later efforts to terminate the prosecution were similarly tainted with impropriety. ”).

Third, Mr. Workman challenges the trial court ’s reliance on the fact that the United States had the DNA results “in

- hand” on the day of trial. We agree with the trial court , however, that it was relevant that this was not a case in which the United States sought to dismiss charges without prejudice in order to wa it “for an indefinite period of time in the hope or expectation that something will turn up



### . ” United States
v. Poindexter , 719 F. Supp. 6, 11 (D.D.C. 1989) (footnote omitted).

Fourth, Mr. Workman relies on a number of cases that he argues support

rever sal. Some of th os e cases , however, place emphasis on whether the reindictment at issue was an impermissible end run around a trial

- court ruling. E.g. , Hayden , 860 F.2d at 1489 (dismissal with prejudice of new indictment could have been appropriate if “ th e district judge concluded and specifically found that the government utilized the Rule 48(a) motion as a pretext to bypass [the district judge’s] denial of the continuance”)

. As we have explained, the trial court in this

case reasonably did not view the reindictment as an end run around its earlier rulings.16
Other cases that Mr. Workman cites involve c ircumstances quite different from those of the present case

. E.g. , Salinas , 693 F.2d at 3 49

- 5 3 ( prosecutor dismissed first indictment after jury selection, without stating reason other than that superseding indictment would be filed ; government reindicted six days later on virtually identical charge s ; prosecutor acknowledged that dismissal was based on desire to go to trial with different jury ). I n other of the cases, the trial court chose to exercise its discretion to dismiss a new indictment with prejudice, and the question on review was whether that ruling was an abuse of discretion. E.g. , United States v.
Derr , 726 F.2d 617, 618

- 19 (10 th Cir. 1984) . Appellate decisions upholding a given exercise of discretion d o not necessarily establish that a different exercise of discretion would be impermissible. See Strayer , 846 F.2 d at 1266 ( “ Derr did not mandate dismissal of subsequent indictments; we merely determined that the trial court did not abuse its discretion in granting the motion to dismiss .”); see generally,
e.g. , Muniz v. United Parcel Serv. , 738 F.3d 214, 223

- 24 (9th Cir. 2013) (“An appellate decision upholding a particular exercise of tri al court discretion does not mean that the appellate court would not have also upheld a subs tantially different decision.”); Rice v. Nova Biomedical Corp. , 38 F.3d 909, 918 (7th Cir. 1994) (“ When an issue is governed by a deferential standard of review , su ch as abuse of discretion,

. . . two district judges who reached the opposite result in identical cases might both be affirmed.”)

.17 In sum, although the authority from courts around the country is not uniform, in our view the weight of authority supports affirmance in the particular circumstances of this case.

Fifth , Mr. Workman argues that the trial court erred by relying on a mistaken belief that Mr. Workman was released from custody as a result of the initi al dismissal without prejudice. The trial court accurately acknowledged, however, that the initial dismissal without prejudice caused Mr. Workman to be released from custody in this case but (at least initially) not in the parole matter.

Finally, Mr. W orkman argues that the trial court erred in stating that “on this

re cord it would be an abuse o f my discretion to dismiss the case with prejudice here .” We need not decide whether th at statement by the trial court was correct. T he trial court considered the relevant factors and concluded that those factors did not justify dismissal with prejudice. Even if it would have been permissible for the trial court to have ruled differently, it is clear that the trial court was not inclined to exercise its discret ion in that ma nn er. We see no basis for remanding to the trial court in such circumstances. Cf. , e.g. , Black v. District of Columbia Dep’t of Human Servs. , 188 A.3d 840, 851 (D.C. 2018) (although remand is ordinarily necessary when agency18 has not adequat ely explained its reasoning, “remand is unnecessary if the agency would doubtless reach the same result”) (internal quotation marks omitted)

.

For the foregoing reasons, the judgment of the Superior Court is

A

ffirmed.