143.

Sample Response to Motion to Dismiss for Violation of Petite Policy

Defendant also moves to dismiss the Indictment on a second ground, claiming that the prior state proceedings against him which also arose out of the cross-burning on Armstrong Lane preclude the instant federal prosecution. As authority for this proposition, he cites the government's "Petite policy," the dual prosecutions guidelines formulated by the Department of Justice. Defendant's argument is without merit. First, the Petite policy applies only where the prior state prosecution has resulted in a termination of the case "on the merits after jeopardy has attached." United States Attorneys' Manual 9-2.142(III)(A) (revised, Dec. 14, 1994). Because the state indictment against Sheldon was dismissed before trial based upon a finding that the state statute at issue was facially unconstitutional, the Petite policy has no bearing upon the instant prosecution. Moreover, even if the policy did apply to this case, it would provide no basis for a motion to dismiss. Courts, including the Fourth Circuit Court of Appeals, have consistently held that a criminal defendant cannot invoke the Petite policy as a bar to federal prosecution. E.g., United States v. Howard, 590 F.2d 564, 567-58 (4th Cir.), cert. denied, 440 U.S. 976 (1979) (noting that the Petite policy is "a mere housekeeping provision"); United States v. Musgrove, 581 F.2d 406, 407 (4th Cir. 1978) (stating the rule that "a defendant has no right to have an otherwise valid conviction vacated because government attorneys fail to comply with [Department of Justice] policy on dual prosecutions."). Consequently, Defendant Sheldon's Motion to Dismiss for Violation of Petite Policy should be dismissed. [cited in Civil Rights Resource Manual 60]