The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
Before the Court is the Government's Motion to Voluntarily Dismiss Certain Counts Without Prejudice (doc. no. 641) ("Motion to Voluntarily Dismiss") pursuant to Fed.R.Crim.P. 48(a), filed along with a Brief in Support on December 28, 2007. After careful consideration of the government's motion and brief and defendant's Brief in Opposition to the Government's Motion to Voluntarily Dismiss Certain Counts Without Prejudice (doc. no. 654) ("Brief in Opposition"), the Court will grant the motion to dismiss in part, but will deny it to the extent the government seeks dismissal without prejudice.
The Court finds that, considering the late stage of the proceedings (jury selection will commence on January 10, 2008) and the government's explanation for voluntarily dismissing 43 of 84 counts, said counts should be dismissed with prejudice in the interests of fundamental fairness to defendant, Dr. Cyril H. Wecht, as well as the public interests.
Government's Motion to Voluntarily Dismiss
The government moves to voluntarily dismiss counts 25-27, 29, 31, 34, 37, 39, 41-63, 65-70, 72-76, and 79 of the 84 count indictment against defendant, which counts are "related to specific wires and mailings." Generally, the government states that its Motion to Voluntarily Dismiss is made in an effort to "streamline" the proof and timing of the trial by eliminating many witnesses and much documentary evidence, "while keeping wholly intact each and every scheme to defraud alleged in the indictment." Motion to Voluntarily Dismiss , at 1 and ¶ 1. Specifically, the Motion to Voluntarily Dismiss states as follows:
2. The government is not seeking to dismiss any of the four schemes to defraud or reduce the scope or extent of those charged schemes in any way. The government is not seeking to dismiss any of the honest services fraud charges or theft charges set forth [respectively] in counts 1-24 and 80-84. The government has instead elected to voluntarily dismiss certain specific wires and mailings and proceed to trial on representative counts from the mail and wire fraud charges at counts 25-79. The result will be a substantially streamlined set of charges that may be proven more efficiently and with less use of court time and resources, without a diminution of any of the underlying fraud schemes.
3. From the mail fraud charges at counts 25-32, the government has elected to proceed to trial on representative mailings at counts 28, 30 and 32 in order to streamline the proof required and reduce the trial time necessary to establish the scheme, and in light of recent discoveries that certain individual packages set forth in the mail fraud counts at 25-27, 29, and 31 may have been hand-delivered.
4. From the wire fraud charges at counts 33-42, the government has elected to proceed to trial on five representative wires at counts 33, 35, 36, 38, and 40, in order to streamline the proof required and reduce the trial time necessary to establish the scheme.
5. From the mail fraud charges at counts 43-79, the government has elected to proceed to trial on four of the mailings, counts 64, 71, 77, and 78, representing one count for each of four counties [allegedly] falsely billed for mileage reimbursement.
Motion to Voluntarily Dismiss at ¶¶ 2-5.
The Motion to Voluntarily Dismiss also indicates that the government would "submit a revised exhibit list reducing the number and volume of trial exhibits, and a revised witness list substantially reducing the number of prospective trial witnesses." Id. at ¶ 1.
In its brief in support, the government unequivocally states that, because it has not relinquished any of the four fraud schemes charged in the original indictment and will proceed to trial on all four schemes through the non-dismissed counts, "once trial begins, double jeopardy will prevent subsequent prosecution of the defendant on the individual mail and wire fraud counts proposed for dismissal." Brief in Support of Motion to Voluntarily Dismiss at 2. The government further asserts that the public interest favors dismissal, that the result will be a more efficient and expeditious trial, and, again, that defendant will not be prejudiced by dismissal of the 43 counts because "once trial begins, the dismissed counts could not be re-filed because jeopardy will have already attached to the underlying fraudulent schemes." Id.
Defendant's Motion for Enlargement of Time to Respond
On December 28, 2007, the Court directed defendant to respond "by noon on Thursday, 1/3/2008." On December 29, 2007, defendant filed a "Motion to Defer the Defendant's Response to Government's Motion to Voluntarily Dismiss Certain Counts Without Prejudice (Doc. 641)" (doc. no. 643), with supporting brief. Defendant asserted in said motion that he was unable to file an informed response to the government's Motion to Voluntarily Dismiss until it filed its revised witness and exhibit lists and provided defendant with exculpatory Brady materials that necessarily had to exist in light of the government's admission that "certain individual packages set forth in the mail fraud counts at 25-27, 29, and 31 may have been hand-delivered."
Defendant was most concerned that the government was seeking, by its Motion to Voluntarily Dismiss and its intention to revise its witness and exhibit lists, somehow to sweep under the rug alleged prosecutorial and judicial misconduct regarding a prospective listed witness, Mr. Gerald Schiller,*fn1 who lies at the heart of defendant's Emergency Petition for Writ of Mandamus that was filed on December 28, 2007 in the United States Court of Appeals for the Third Circuit, at 07-4974.*fn2 "Motion to Defer the Defendant's Response to Government's Motion to Voluntarily Dismiss Certain Counts Without Prejudice (Doc. 641)" (doc. no. 643) at ¶11 ("For example, the defense strongly suspects that, among other things, the reason the government did not tender the new witness and exhibit lists with the motion [to voluntarily dismiss certain counts] is because the Government will now remove Government Exhibit 367, Schiller's documentary evidence, previously admitted by the Court . . . and Schiller himself from its witness list, given the uncorrected misconduct surrounding Schiller" as cited in defendant's Emergency Petition for a Writ of Mandamus filed in the Court of Appeals). See also id. at ¶¶ 4 and 10. For this and other reasons, defendant requested that this Court order the government to first produce its new revised witness and exhibit lists and any Brady materials regarding the tobe-dismissed counts, and then permit him to file his response to the government's Motion to Voluntarily Dismiss shortly after he received all of those items.
The Court denied defendant's Motion to Defer his Response by text-only order ...