United States of America v. Tiffany Bernard

United States Court of Appeals
For the Eighth Circuit
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No. 21-3412
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United States of America
Plaintiff - Appellee
v.
Tiffany Bernard
Defendant - Appellant
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No. 21-3417
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In re: Tiffany Bernard
Petitioner
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No. 21-3874
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United States of America
Plaintiff - Appellant
v.
Tiffany Bernard
Defendant - Appellee
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Appeal from United States District Court
for the District of South Dakota - Northern
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Submitted: March 16, 2022
Filed: August 2, 2022
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Before GRASZ, STRAS, and KOBES, Circuit Judges.
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STRAS, Circuit Judge.
The district court had strong views about what charges fit Tiffany Bernard’s
crimes. It rejected both her plea agreement and a motion by the government to
dismiss four of the five counts in the indictment. The latter ruling went too far,
which is why we reverse and remand with instructions to grant the government’s
motion.
I.
A local fisherman found a seriously injured Josue Alaniz in his car near a
South Dakota lake. All Alaniz remembered was that he had given a ride to a woman
named Tiffany Bernard, and that the evening had ended with a brutal beating at the
hands of several men. Bernard denied that she was involved, so the investigation
moved slowly at first.
Eventually, however, Bernard changed her story. She explained how she had
tricked Alaniz into letting her drive him to a lake, where three men were waiting to
rob him. She also provided the names of her three accomplices but omitted a key
fact: she had put the plan together and set it in motion.

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From there, the investigation picked up steam. The government charged each
member of the group with five crimes,1 but Bernard received a deal: she could plead
guilty to robbery in exchange for the dismissal of the other charges. See 18 U.S.C.
§§ 2, 1153, 2111. Bernard completed the first step by pleading guilty to robbery.
At the second step, however, the district court refused to dismiss the remaining
charges.
It instead scheduled an evidentiary hearing for Alaniz and his wife to testify.
After listening to their testimony, the district court announced that it had decided to
reject the plea agreement. In its view, a statutory-maximum sentence for robbery
“d[id] not adequately reflect the seriousness of the crimes committed against”
Alaniz.
Despite the district court’s actions, the government remained committed to
holding up its end of the bargain. After the court set a trial date on the remaining
four counts, the government moved to dismiss them. The court once again stood in
the way, explaining that a dismissal would be “clearly contrary to the manifest public
interest.”
Everyone appealed from there. Bernard appealed the denial of the
government’s motion and filed a petition for a writ of mandamus. And after
receiving an extension, the government appealed too. We consolidated all three
cases and appointed amicus curiae2 to represent the district court’s view.
1 Aiding and abetting assault with intent to commit murder, 18 U.S.C. §§ 2,
113(a)(1), 1153; aiding and abetting maiming, id. §§ 2, 114, 1153; aiding and
abetting robbery, id. §§ 2, 1153, 2111; aiding and abetting assault with a dangerous
weapon, id. §§ 2, 113(a)(3), 1153; and aiding and abetting assault resulting in serious
bodily injury, id. §§ 2, 113(a)(6), 1153.
2 We thank Landon Magnusson of Withers, Brant, Igoe & Mullennix, P.C. for
his able briefing and argument.

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II.
Our first task is to determine whether we have appellate jurisdiction. As the
government points out, the collateral-order doctrine provides the path forward. See
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546–47 (1949).
An order is both collateral and immediately appealable if it “[1] conclusively
determine[s] the disputed question, [2] resolve[s] an important issue completely
separate from the merits of the action, and [3] [is] effectively unreviewable on appeal
from a final judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006) (citation omitted).
Although few categories of interlocutory rulings fall within the collateral-order
doctrine, the type of order in this case is one of them. See United States v. Dupris,
664 F.2d 169, 173–74 (8th Cir. 1981) (holding that the denial of a motion to dismiss
filed by the government is immediately appealable under the collateral-order
doctrine (citing Fed. R. Crim. P. 48(a)).
Amicus disagrees, but only by recharacterizing what the district court did. In
his view, the court just reviewed and “rejected” Bernard’s plea agreement, which it
is expressly permitted to do under a separate criminal rule. See Fed. R. Crim. P.
11(c)(3)(A) (providing that if a plea agreement specifies that part of the
government’s obligation is to move to dismiss other charges, “the court may accept
the agreement, reject it, or defer a decision until the court has reviewed the
presentence report”). But we cannot ignore what the court did next: deny the
government’s motion to dismiss the remaining charges. Amicus may well be right
that the first act—rejection of the plea agreement—is not immediately appealable
under the collateral-order doctrine. But Dupris tells us that the second act—denial
of the government’s motion to dismiss—is. And the second act is what the parties
are appealing.3
3 Our appellate jurisdiction over the government’s appeal makes it unnecessary
to decide whether we would also have jurisdiction over anything Bernard has filed.
See United States v. MacConnell, 868 F.2d 281, 285 (8th Cir. 1989). After all, the

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III.
Having determined there is jurisdiction, we now turn to the merits. The parties
frame the issue around Federal Rule of Criminal Procedure 48(a), which permits the
government, “with leave of [the] court,” to dismiss “an indictment, information, or
complaint.” Although the text appears to cover the dismissal of the entire
indictment, not just a part of it, we will assume without deciding that it covers a
partial dismissal too.4
Even if the government had to get “leave of [the] court,” it is no blank check
for second-guessing charging decisions. To the contrary, “[f]ew subjects are less
adapted to judicial review than the exercise by the Executive of his discretion in
deciding . . . whether to dismiss a proceeding once brought.” United States v.
Jacobo-Zavala, 241 F.3d 1009, 1012 (8th Cir. 2001) (citation omitted). For that
reason, although the district court has some discretion in this area, it “is sharply
limited by the separation of powers balance inherent in Rule 48(a).” Id. at 1011–12
(explaining that we review the district court’s decision for an abuse of discretion).
parties are both seeking the same thing: for the district court to dismiss the remaining
charges against Bernard and proceed to sentencing on the robbery count.
4 As far as we can tell, we have only assumed that Rule 48(a) applies in this
situation. See United States v. Williams, 720 F.3d 674, 702–04 (8th Cir. 2013);
United States v. Sprofera, 299 F.3d 725, 726–27 (8th Cir. 2002); United States v.
Rush, 240 F.3d 729, 730–31 (8th Cir. 2001) (per curiam). There is a good argument
that, in the absence of any language in Rule 48(a) to the contrary, a situation like this
one is covered by the common-law rule that the government has “an almost
unfettered right to enter a nolle prosequi” on individual counts without having to ask
the court for permission. United States v. Garcia-Valenzuela, 232 F.3d 1003, 1007
(9th Cir. 2000); see also In re United States, 345 F.3d 450, 452 (7th Cir. 2003) (“It
is true that [Rule 48(a)] requires leave of the court for the government to dismiss an
indictment, information, or complaint—or, we add, a single count of a charging
document.” (emphasis added)).

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Courts can exercise their discretion to withhold leave in only “the rarest of
cases.” In re Richards, 213 F.3d 773, 786 (3d Cir. 2000). One is when there has
been “prosecutorial harassment,” including a pattern of “charging, dismissing, and
recharging” the defendant. Jacobo-Zavala, 241 F.3d at 1012 (quoting Rinaldi v.
United States, 434 U.S. 22, 29 n.15 (1977) (per curiam)). There is no evidence of
harassment here, only cooperation, so the only other possibility is that dismissal of
the charges “would be clearly contrary to manifest public interest.” Id. at 1013
(emphasis added) (quotation marks omitted); see also United States v. Garcia-
Valenzuela, 232 F.3d 1003, 1008 (9th Cir. 2000) (suggesting that “[w]here a
defendant consents to the government’s mo[tion] to dismiss, it is not clear that the
district court has any discretion to deny the government’s motion”).
For a dismissal to be “clearly contrary to manifest public interest,” the
prosecutor must have had an illegitimate motive rising to the level of bad faith. See
United States v. Rush, 240 F.3d 729, 730–31 (8th Cir. 2001) (per curiam) (quotation
marks omitted); United States v. Smith, 55 F.3d 157, 159 (4th Cir. 1995). Examples
include the “acceptance of a bribe, personal dislike of the victim, and dissatisfaction
with the jury impaneled.” Smith, 55 F.3d at 159. Anything less is not enough. See
In re United States, 345 F.3d 450, 453 (7th Cir. 2003) (explaining that district courts
do not get to “play[] U.S. Attorney”).
Here, the district court merely “disagreed with the prosecutor’s assessment of
what penalty the defendant[] ought to face.” Jacobo-Zavala, 241 F.3d at 1014.
Rather than addressing whether the prosecutor acted in bad faith, the court just listed
the reasons it thought Bernard was getting off too easy: she was “very dangerous”
and “by far the most culpable”; Alaniz suffered life-threatening injuries; and a
“conviction for robbery alone strip[ped] the [c]ourt of any ability to sentence [her]
to a just punishment.” These may be important factors to consider at sentencing, but
they are not reasons to interfere with the government’s charging decisions, no matter
how much the court may disagree with them.

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IV.
We accordingly reverse the decision of the district court and remand with
instructions to grant the government’s motion.
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