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Can a guilty plea be withdrawn under Rule 48?

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Rule 48a allows the federal government to dismiss an indictment or complaint. The rule also allows for the dismissal of the prosecution during trial with the consent of the defendant with the leave of the court. In addition, Rule 48b allows the court to dismiss an indictment or complaint if there are delays in presenting a charge to a grand jury, impediments in filing information against the defendant, or bringing a defendant to trial.

We recently discussed how General Michael Flynn — former National Security Advisor to President Donald J. Trump — withdrew his guilty plea. General Flynn pleaded guilty to "willfully and knowingly" making false statements to the FBI about his contacts with Russia shortly after the 2016 presidential election.

Did Rule 48 apply to the dismissal of General Michael Flynn's guilty plea?

Rule 48a applied to General Flynn's case after his plea on a single count was accepted by the court. The U.S. Attorney for the District of Columbia filed a motion to dismiss the single charge against General Flynn citing "newly discovered evidence of misconduct by the Federal Bureau of Investigation" and stating that "the prosecution can no longer prove beyond a reasonable doubt that any false statements made by Flynn were material to a legitimate investigation." The government’s motion to dismiss also explains that “continued prosecution of the charged crime does not serve a substantial federal interest.”

The district judge who presided over the case took the extraordinary and unprecedented step of appointing a retired judge as "amicus curiae" (friend of the court) to argue against the motion filed by the U.S. Attorney for the District of Columbia in an Emergency Petition for a Writ of Mandamus argued on June 12 and decided upon on June 24, 2020. The trial judge had scheduled a hearing for July 16, 2020 to present questions regarding whether or not General Flynn should be held in criminal contempt for perjury because he sought to withdraw his guilty plea in which he admitted liability.

The Emergency Petition for a Writ of Mandamus was granted by the United States Court of Appeals District of Columbia Circuit on June 24, 2020.  In granting Judge Flynn's petition for writ of mandamus, the appellate court ordered that:

  • General Flynn's petition for a writ of mandamus be granted, meaning the Court was required to grant the prosecution's motion to dismiss and General Flynn's withdrawal of his plea.
  • The District Court is directed to grant the Rule 48(a) motion to dismiss.
  • The District Court vacated order appointing an amicus finding it an "unconstitutional" act that caused "irreparable harm."

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