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UNITED STATES v. N.V. NEDERLANDSCHE COMBINATIE VOO

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


February 28, 1977

United States of America, Plaintiff,
v.
N.V. Nederlandsche Combinatie Voor Chemische Industrie, et al., Defendants.

The opinion of the court was delivered by: EDELSTEIN

MEMORANDUM

EDELSTEIN, Chief Judge:

 This is a motion by the government to dismiss the indictment, pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure, as against the following defendants: N.V. Amsterdamsche Chininefabriek, N.V. Nederlandsche Kininefabriek, Bandoengsche Kininefabriek Holland N.V., ACF Farmaceutische Groothandel N.V., N.V. Bureau Voor der Kinineverkoop "Buramic," Carel N. van der Spek, John A. Massaut, George Cruickshank, Walter W. Buchler, John A. Lumley, Pierre Augustins and Harry Y. de Schepper. *fn1"

 The affidavit of Joel Davidow and Memorandum of Law submitted by the government in support of its motion relate primarily to the dismissal of the indictment against John A. Massaut. The court will therefore first focus upon the motion as it relates to that defendant.

 Rule 48(a) vests this court with discretion in determining if the instant motion should be granted. E.g., United States v. Bettinger, 54 F.R.D. 40 (D. Mass. 1971); United States v. Greater Blouse, Skirt and Neckwear Contractors Ass'n, 228 F. Supp. 483 (S.D.N.Y. 1964). Any suggestion that the district court simply "rubber stamp" a Rule 48(a) motion ignores the Supreme Court's inclusion in the Rule of the requirement that indictments be dismissed "by leave of court." *fn2"

 A court, in the exercise of its discretion, certainly must protect the defendant from harassing motions. See United States v. Greater Blouse, Skirt and Neckwear Contractors Ass'n., 228 F. Supp. 483, 487 (S.D.N.Y. 1964). In addition to protecting the rights of the defendant, the court is vested with the responsibility of protecting the interests of the public on whose behalf the criminal action is brought. This is especially true where, as here, the matter comes before the court on indictment rather than information. See, e.g., United States v. Bettinger, 54 F.R.D. 40 (D. Mass. 1971); United States v. Doe, 101 F. Supp. 609 (D. Conn. 1951).

 The indictment in this case alleges a criminal conspiracy to fix prices, control bidding and buying, and allocate customers and markets in the sale of quinine, quinidine, and other products derived from cinchona bark. The defendants include major sellers of these products and individuals who allegedly played a significant role in the criminal conspiracy. The offenses included in the indictment have been characterized by government counsel as being of the most grave and serious nature. *fn3" / In light of the gravity of these charges, the court is constrained to examine with great care whether the government's present desire to dismiss these indictments is in the public interest.

 The government does not contend that insufficient evidence exists to sustain convictions on the charges pending against Mr. Massaut. What is contended is that prosecution of this indictment would be at great public expense without any certainty of success due to the difficulty in gathering witnesses and the possible frailty of witness' memory. The outcome of litigation, to be sure, cannot be predicted with complete accuracy. To that extent, uncertainty is inherent in every litigation. As such, the government assertions are not persuasive and hardly indicate the exercise of judicial discretion in favor of the government's motion.

 The government's motion also relies in large part on a private agreement with N.V. Nederlandsche Combinatie Voor Chemische Industrie (Nedchem) whereby Nedchem would plead guilty to three counts of the indictment and the government would move to dismiss the indictment as to Nedchem's employee, Mr. Massaut. The court has already made it clear to all involved that it would not be privy to any agreement by which some defendants entered guilty pleas in return for dismissals as to others. *fn4" / The government now seeks to justify its motion to dismiss by presenting the court with the fait accompli of Nedchem guilty pleas. This court will not be a party indirectly to that which it previously rejected directly.

 The court is not affected in the exercise of its discretion by the previous pleas of Nedchem. After reviewing the entire record, *fn5" / the court has determined that a dismissal of the indictment against Mr. Massaut is not in the public interest. Therefore, the government's motion to dismiss as to Mr. Massaut must be and is denied.

 The government's stated reason for dismissing as to the other individual defendants is "[since] most of the remaining individuals played minor roles, it would be unfair to proceed against them while Massaut was being dismissed." *fn6" / Denial of the motion as to these defendants follows from the denial of the motion as to Massaut. As to the remaining foreign corporations, the government merely states, "[The] possibility of their coming to the United States in some future year is neither sufficiently great nor important to justify the expense and inconvenience of continued commitment of resources to this case, including further immigration surveillance, possibly for many more years." *fn7" / For the reasons above stated the motion as to these defendants must also be denied.

 So ordered.

 David N. Edelstein Chief Judge

19770228

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