## Facts

- A federal grand jury in the Northern District of Texas indicted Ray Cowan and Jack Jacobsen for fraudulent misuse of savings-and-loan funds.
- Jacobsen was later implicated in a separate District of Columbia prosecution connected to an alleged bribery-related scheme involving a former Treasury Secretary.
- To secure Jacobsen’s cooperation and testimony in the related D.C. matter, federal prosecutors negotiated an agreement that included seeking dismissal of the Texas indictment.
- The U.S. Attorney filed a motion under Federal Rule of Criminal Procedure 48(a) to dismiss the Texas indictment.
- The district court denied the Rule 48(a) motion.
- After the United States formally declined to proceed with prosecution, the district court appointed private special prosecutors to continue the criminal case.
- The United States sought review by direct appeal under 28 U.S.C. § 1291 and, alternatively, by petition for a writ of mandamus.

## Issues

1. Under Rule 48(a), when may a district court deny the government’s motion to dismiss an indictment?
2. If the Executive Branch declines to prosecute, may a district court appoint private special prosecutors to continue a federal criminal prosecution?
3. Is an order appointing special prosecutors a “final decision” appealable under 28 U.S.C. § 1291, and what relief is proper?

## Decision

- The Fifth Circuit held the order appointing special prosecutors was final and appealable under § 1291.
- The court reversed the district court’s appointment of special prosecutors.
- The court held the district court erred in refusing the government’s Rule 48(a) motion to dismiss under the circumstances presented.
- Because direct appeal provided an adequate remedy, the court did not rely on mandamus.

## Legal Principles

- Charging and dismissal decisions in federal criminal cases are primarily executive functions; Rule 48(a) does not transfer that authority to the judiciary.
- Rule 48(a)’s “leave of court” requirement permits only a limited judicial check, chiefly to prevent abuse such as harassment through repeated charging and dismissal or dismissals tainted by bad faith or corruption.
- A district court may not deny a Rule 48(a) dismissal simply because it disagrees with the government’s prosecutorial policy judgments, including dismissal as part of a cooperation or plea arrangement.
- When the United States declines to prosecute, a district court lacks authority to keep the prosecution alive by appointing private attorneys as special prosecutors to act in place of the Executive.

## Conclusion

The Fifth Circuit enforced the Executive’s control over federal prosecutions by limiting a district court’s ability to block a Rule 48(a) dismissal to cases involving abuse or bad faith, and by prohibiting courts from appointing private special prosecutors to continue a federal criminal case after the government has chosen not to proceed.


United States v. Cowan, 524 F.2d 504 (5th Cir. 1975)