Full opinion text
MEMORANDUM OPINION AND ORDER HAIGHT, Senior District Judge. On August 30, 1985, the government sought and obtained leave to file a nolle prosequi dismissing the captioned indictment in its entirety against defendant Susan Rosenberg. Nearly fifteen years later and in large part, if not solely, on account of her alleged involvement in the crimes included in the dismissed indictment, Rosenberg was denied release on parole from a 58-year sentence she is currently serving after being convicted in the District of New Jersey on unrelated charges. Perceiving this as a miscarriage of justice, Rosenberg now moves this Court to reconsider its grant of nolle prosequi and to grant appropriate relief. I. BACKGROUND A. The Brinks Indictment In This District In 1982, Rosenberg was indicted in this District, along with numerous others, in United States v. Shakur, 82 Cr. 312, also known as the “Brinks case.” The indictment alleged a conspiracy to commit several “fund-raisers” or armed robberies to raise money for the revolutionary activities of the conspiracy members (also known as “the Family”). Among the crimes committed by the Family were armed robberies, kidnapings, the jail break of Joanne Chesi-mard, and the murders of two police officers and two Brinks armored truck guards. Rosenberg’s alleged role was as a member of the Family’s secondary team whose job was to arrange for getaway cars, safe houses, and reconnaissance. The first Brinks trial in this Court was held in 1983, before Judge Duffy and a jury. Six of the eleven defendants named in the indictment were tried: two of the defendants were convicted on RICO counts, two were found guilty as accessories after the fact, and two were acquitted on all charges. Although maintaining her innocence of any and all of the Brinks crimes, Rosenberg became a fugitive and was not apprehended until November 29, 1984. B. The Neto Jersey Indictment, Conviction and Sentence During the time Rosenberg was at large, she allied herself with one Timothy Blunk in a conspiracy to further their revolutionary ends and political ideas. In preparation for an undefined terrorist campaign, Rosenberg and Blunk stockpiled a large amount of firearms, explosives and false identification documents and badges. Both Rosenberg and Blunk were arrested before they could carry out their destructive plan. The self-proclaimed “professional revolutionaries” were tried for these crimes in the District of New Jersey and found guilty on all counts. They did not deny their guilt, instead viewing the trial and subsequent sentencing as a forum to air their political views. They insisted on being absent from most of the proceedings, instructed their advocates to remain inactive, considered themselves political prisoners, disavowed the legitimacy of the Federal court and the United States government, and otherwise refused to cooperate in any way. On May 20, 1985, District Judge Frederick B. Lacey sentenced both defendants to 58 years in prison. Before imposing sentence, Judge Lacey explicitly stated that: in sentencing I’m giving no consideration to Rosenberg’s involvement, if any, in the acts and crimes charged in the Southern District of New York, wherein it’s alleged that she participated in various armed robberies and murders, and among other things, the jail breakout of Chesimard. Rosenberg is still to be tried on those charges and I’m being as specific as I can be so that the prosecution and the court having jurisdiction over the matter there will know that my sentence here is not based in the slightest on any involvement that Rosenberg may have had in what is there charged. (Tab 4, p. 46). The government and Rosenberg dispute the meaning of that statement. Rosenberg argues that this is clear evidence that the length of her sentence for her New Jersey crimes was never meant to include or be influenced by her alleged involvement in the Brinks case. On the other hand, the government contends that Judge Lacey merely intended to preclude Rosenberg from making any double jeopardy challenge if and when she was tried in this Court for the Brinks crimes. The government’s interpretation seems more likely, given the fact that Judge Lacey addressed his statement to the “prosecution and the court having jurisdiction over” the Brinks case, rather than to the Parole Commission. The government might even be conservative in its interpretation, since Judge Lacey was possibly seeking to foreclose not only a double jeopardy challenge, but also, lest anyone think that the Brinks crimes had already been considered, the possibility that the New Jersey sentence be used to mitigate any sentence Rosenberg might ultimately receive for the Brinks crimes. Even if, as Rosenberg contends, Judge Lacey meant this pronouncement as a recommendation to the Parole Commission not to consider Rosenberg’s alleged involvement in the Brinks crimes when determining parole eligibility, an unlikely proposition since the judge addressed the Parole Commission directly later in the sentencing and in a separate parole recommendation, (Tab 4, p. 58; Tab 5), the Parole Commission would not be bound by such recommendation. See 28 C.F.R. § 2.19(d) (1999). Interestingly, regarding the place of incarceration, and referring to Family member Marilyn Buck’s escape from prison, Judge Lacey warned, “it will be remembered that Rosenberg’s ‘comrade’, Marilyn Buck, was permitted to walk out of Alder-son on a legal furlough to visit her attorney, Tipograph. Tipograph and Rosenberg are more than just attorney and client. They have been associates, eom-panions and roommates. I am sure the Bureau of Prisons will make certain that Rosenberg does not profit from the same mistake that was made as to Buck.” (Tab 5, pp. 2-3). Marilyn Buck was later convicted in this Court for her involvement in the Brinks crimes. This belies any suggestion that Judge Lacey completely disassociated Rosenberg from the Brinks case or its participants. In any event, this Court considers the statement at sentencing only for its plain meaning, that is, that the 58 year sentence was based entirely on Rosenberg’s New Jersey crimes. Aware that Rosenberg and Blunk would be eligible for parole consideration after only 10 years of imprisonment, Judge Lacey was adamant about and explicit in his view that it would be “a terrible mistake if these defendants were to be released from prison after serving only 10 years if then-attitude then is as it is now.” (Tab 5, p. 2; Tab 4, p. 53). Accounting for the possibility that the Parole Commission would decide at some future date that release was proper, Judge Lacey also emphasized the grave responsibility the Parole Commission would bear for any adverse consequences that might follow. Id. C. The Nolle Prosequi of the Brinks Indictment Against Rosenberg In spite of her behavior at and attitude toward the New Jersey trial, Rosenberg contends that she maintained her innocence of the Brinks charges and wished to prove her innocence at the second Brinks trial for which the government was preparing. Rosenberg insisted on being arraigned in this District on those charges. On August 26, 1985, while awaiting trial, Rosenberg’s attorney, Susan Tipograph, made a motion on behalf of Marilyn Buck, Susan Rosenberg and Alan Berkman to consolidate their cases. (Tab 7). Buck was charged in a separate indictment and was also represented by Tipograph. Berkman, who was charged in the same indictment as Rosenberg, consented to the consolidation motion. On August 30, 1985, the government moved for leave to file a nolle prosequi against Rosenberg. In its nolle application the government cited as the basis for the nolle “the lengthy sentence imposed by Judge Lacey and his recommendation regarding parole,” namely, “that ‘parole not be granted at the statutory maximum eligibility point of ten years.’ ” (Tab 8, p. 3). The Court granted the nolle without prejudice. Rosenberg maintains that the dismissal was granted over her objection, and that she was thereby denied the right to go to trial and contest the charges against her. There is no contemporaneous evidence to support this contention. Apparently, Rosenberg did object to the fact that the dismissal was granted without prejudice and moved that the nolle be entered with prejudice. By order dated September 17,1985, Judge Duffy denied the motion as moot, reasoning that until Rosenberg was reindicted, there would be no case or controversy. It is that nolle prosequi that is the subject of the instant motion. Rosenberg is currently serving her 58 year sentence for her New Jersey crimes, and is incarcerated in the District of Connecticut, at the Federal Correctional Institution in Danbury. D. Rosenberg’s Initial Consideration For Parole: The Parole Commission’s Inquiry and the Government’s Response Pursuant to 18 U.S.C. .§ 4205(a), Rosenberg first became eligible for parole in 1994, after serving ten years of her term of imprisonment. In preparation for Rosenberg’s first parole hearing, the United States Parole Commission sent a letter dated August 31, 1994 to the United States Attorney for this District. The substantive paragraphs of that letter read as follows: The above-named Subject is scheduled for a hearing within the next few weeks. Commission Examiners have determined that further information is needed to conduct the hearing in conformity with the Commission procedures. The information needed is described in the following manner: Please provide details of subject’s involvement in the bank robbery behavior(s) which resulted in people being killed. Were the charges prosecuted, if not, please advise the Commission as to why they were not. Did Ms. Rosenberg participate in the crimes, if so please define her role. It is the Commission’s understanding that Ms. Rosenberg and others were charged under docket # SSS82CR312 in the Southern District of New York in an eight count indictment which included armed robbery and murder. Please provide details of her role in the behavior. Also, whether there was evidence which would support the charges. The Commission would appreciate it if you would take the necessary action(s) to secure the needed information. One copy of your response should be sent to the institution of confinement, the original to this office. Your response should state that it may be disclosed to the Subject, or contain a summarization of non-disclosable information pursuant to 18 U.S.C., Section 4208(c). The government responded in a single-spaced typed letter of just over seven pages, dated November 8, 1994 and signed by Assistant United States Attorney Kerri Martin Bartlett. AUSA Bartlett was one of the two prosecutors presenting the government’s case at the trial of Buck and Shakur. The first six pages of her letter answer the questions posed by the Parole Commission: informing that the Brinks case against Rosenberg had been nolled, explaining why, and reviewing in detail the government’s perception of the evidence of Rosenberg’s complicity in those crimes. At the bottom of page 7, AUSA Bartlett’s letter embarks upon a lengthy answer to a question the Parole Commission did not ask: whether Rosenberg should be paroled. That portion of the letter begins: “Rosenberg’s present request for parole, coming as it does only ten years after her incarceration,- is frivolous in the Government’s view.” The long sentences passed upon those Family members who were convicted or pled guilty in federal or state court are reviewed, with the additional comment: “It is ludicrous that Rosenberg would expect more lenient treatment than her secondary team co-racketeers, especially given the severity of her additional New Jersey crimes.” The sufferings of the Family’s victims are movingly recounted. (See, e.g., page 7 of the letter: “Sergeant O’Grady’s widow and his young son Edward Jr., who was still trying to understand the reasons for his father’s murder, occupied front row seats at the federal sentencing of Marilyn Buck in 1989.”). AUSA Bartlett’s letter concludes with these words: Thus, even if Susan Rosenberg now professes a change of heart about her pursuit of violence as a means to achieve her political objectives, the wreckage she has left in her wake is too enormous to overlook. Rosenberg deserves to serve a lengthy sentence as punishment for her crimes and as a continued assurance to her victims and their families that our criminal justice system has not forgotten them. Her service of a lengthy prison sentence will also deter others who might arrogantly believe that the furtherance of their political beliefs is justification for violence. Rosenberg’s parole request should be denied. Given that there were no victims of her New Jersey offenses, Bartlett could only have been referring to the Brinks crimes. Rosenberg relies heavily on this letter as the basis for her argument that the government abused the nolle prosequi by, in effect, prosecuting Rosenberg in front of the Parole Commission, where she did not have the benefit of the greater due process protections that attach to a criminal defendant as opposed to a prisoner who is up for parole. Rosenberg was not paroled in 1994. E. The Release on Parole of Rosenberg’s New Jersey Co-defendant In March 1997, Rosenberg’s coconspirator in the New Jersey crimes, Timothy Blunk, was released on parole. Blunk had been convicted of the same offenses and received the same sentence as Rosenberg. When the Parole Commission considered Rosenberg’s application for parole in January 1998, she was denied release, even though the Parole Commission rated Blunk as having a greater potential risk of parole violation than Rosenberg. Most likely accounting for the different results is the fact that it was never alleged that Blunk had been involved in the Brinks crimes. This is confirmed by the record of the parole hearing and the Commission’s decisions. F. Federal Parole: The Statutory and Regulatory Scheme 18 U.S.C. § 4206 defines parole determination criteria. It provides, in pertinent part: (a) If an eligible prisoner has substantially observed the rules of the institution or institutions to which he has been confined, and if the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines: (1) that release would not depreciate the seriousness of his offense or promote disrespect for the law; and (2) that release would not jeopardize the public welfare; subject to the provisions of subsections (b) and (c) of this section, and pursuant to guidelines promulgated by the Commission pursuant to section 4203(a)(1), such prisoner shall be released. (c) The Commission may grant or deny release on parole notwithstanding the guidelines referred to in subsection (a) of this section if it determines there is good cause for so doing: Provided, That the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon. The guidelines referred to are set out in 28 C.F.R. § 2.20 (1999), and provide the Parole Commission with two methods of evaluating or rating an inmate’s eligibility for parole. First, offense severity is rated on a scale of 1 to 8, Category Eight being the most severe. Second, a salient factor score, which indicates the potential risk of parole violation and measures offender characteristics, is calculated on a scale of 0 to 10, 10 indicating the lowest risk. The guidelines specify the customary range of time to be served before release for various combinations of the two scores. A federal prisoner sentenced prior to the effective date of the Sentencing Reform Act and serving a term of more than thirty years is first eligible for parole after serving ten years of such sentence. 18 U.S.C. § 4205(a). “Whenever feasible, the initial parole determination proceeding ... shall be held not later than thirty days before the date of such eligibility for parole.” 18 U.S.C. § 4208(a); but see, 28 C.F.R. § 2.12 (providing that initial hearing be conducted nine months prior to parole eligibility date, “or as soon thereafter as practicable”). To activate the parole determination procedure, a federal prisoner must apply for parole. 28 C.F.R. § 2.11. Thereafter an initial hearing is conducted at which the Commission shall set a presumptive release date, set an effective date of parole, or, as in the case of Susan Rosenberg, continue the prisoner to a fifteen-year reconsideration hearing. 28 C.F.R. § 2.12. At the initial hearing, “[t]he examiner shall discuss with the prisoner his offense severity rating and salient factor score ... his institutional conduct and, in addition, any other matter the examiner may deem relevant... .A prisoner may be represented at a hearing by a person of his or her choice.” 28 C.F.R. § 2.13. At the conclusion of the hearing, the hearing examiner or examiners make a recommendation regarding parole subject to the Regional Commissioner’s approval. 28 C.F.R. § 2.23(d); § 2.24. “[A] Regional Commissioner may designate certain cases for decision by a majority of the Commission, as original jurisdiction cases. In such instances, he shall forward the case with his vote ... to the National Commissioners for decision.” 28 C.F.R. § 2.17(a). This action is taken in high profile cases, in the case of prisoners who have committed crimes against the security of the Nation, in cases involving large scale conspiracy, continuing criminal enterprise or complex and sophisticated planning, and in cases where the prisoner has been sentenced to a maximum term of 45 years or more. 28 C.F.R. § 2.17(b). A prisoner may then appeal an original jurisdiction decision to the National Appeals Board by making a petition for reconsideration within thirty days of the original jurisdiction decision. 28 C.F.R. § 2.27(a). The decision of the National Appeals Board is final. Id. G. Rosenberg’s Parole Hearings and the Denial of Parole Rosenberg’s initial parole hearing was held on January 15, 1998. Rosenberg was represented by an attorney. At the hearing Rosenberg accepted responsibility for her New Jersey crimes, and stated that she recognized that violence was not a proper means of advancing her political ends. Although she maintained that it was never her intention to harm anyone, she acknowledged that given the arsenal she and Blunk had assembled, her intentions notwithstanding, tremendous harm could have resulted. (Tab 14, p. 4). Rosenberg testified to and submitted numerous letters evidencing her impressive institutional adjustment. As to the Brinks charges, Rosenberg vehemently denied that she had been involved in any way. She also claimed that she had wanted to contest the charges and vindicate her name, but that over her objection, she was denied the opportunity to go to trial. (Tab 14, pp. 10-11). Even though Rosenberg and her attorney were given the chance to respond to the Brinks charges, specifically the information contained in AUSA Bartlett’s letter, the hearing examiner noted that “you can’t really properly defend it in this forum. I do understand that. You’ve said all you could to defend. But as far as putting on witnesses and being able to ... show your innocence, you really can’t do it in this forum.” (Tab 14, p. 21). In spite of his words of empathy, the hearing examiner did not credit Rosenberg’s denials, and was persuaded by a preponderance of evidence, see 28 C.F.R. § 2.19(c), that Rosenberg had been involved in the Brinks crimes, and was, thus, accountable for the robberies and murders that had occurred. He graded Rosenberg’s offense severity as Category Eight, and gave her a salient factor score of 10. The examiner recommended a fifteen-year reconsideration hearing. Although this means that Rosenberg is not scheduled to receive a full reassessment of her case until the year 2013, an interim hearing will be held every two years, see 28 C.F.R. § 2.14(a)(l)(ii), during which the Commission has the authority to advance the date of the reconsideration hearing, albeit by a limited amount of time and only under special circumstances. § 2.14(a)(2)(ii). The examiner also recommended that the Regional Commissioner refer the case to the National Commissioners for original jurisdiction consideration. (Tab 14, p. 26). Apparently, the Regional Commissioner adopted the examiner’s recommendations. In February, 1998, the original jurisdiction decision affirmed the hearing examiner’s recommendation and continued Rosenberg’s case for a fifteen-year reconsideration hearing. This decision was appealed pursuant to 28 C.F.R. § 2.27. (Tab 13). On April 14, 1999, the National Appeals Board (also referred to as the “Full Commission”) affirmed the previous decisions, thereby making final the Commission’s denial of parole. The National Appeals Board did not deem credible Rosenberg’s claims of innocence of and noninvolvement in the Brinks conspiracy, instead concluding that the preponderance of the evidence supported findings to the contrary. While noting that it was not required to consider Blunk’s parole status, the Full Commission explained that there were substantial differences between the co-defendants that justified the disparity, and, moreover, that releasing Blunk may have been a mistake. (Tab 16, p. 2; Tab 21, p. 6). The Full Commission apparently gave consideration to Rosenberg’s offense of conviction, and, in fact, before rendering a final decision, remanded her case solely to explore further what Rosenberg intended to do with the explosives and firearms she and Blunk possessed at the time of their arrest. (Tab 9). The hearing examiner conducted a reconsideration hearing on October 15, 1998. He concluded that the clarifications sought on remand regarding the offense of conviction did not warrant a change in the Commission’s decision, (Tab 9, p. 5), and the Full Commission devoted its entire Notice of Action to a discussion of Rosenberg’s involvement in the Brinks crimes. (Tab 16). Although the Full Commission acknowledged Rosenberg’s change in attitude and institutional adjustment, it concluded that this progress was outweighed by the seriousness of her total offense behavior. As reasoned in one of the two original jurisdiction appeal summaries considered by the National Appeals Board, “There does not appear to be any risk to the public were she released on parole. The Commission’s decision, therefore, rests solely on the other considerations of § 4206: whether release would depreciate the seriousness of the offense or promote disrespect for the law.” (Tab 12, p. 5). Having exhausted her administrative remedies, Rosenberg now appeals to this Court for appropriate relief. Her new attorney and the government have filed extensive briefs. The Court has heard oral argument. The record clearly demonstrates that the Parole Commission found by a preponderance of the evidence that Rosenberg was a part of the Brinks conspiracy. Largely, if not entirely, on this basis, Rosenberg was denied release on parole. The Commission did not suggest that Rosenberg would pose a danger if released or that she was likely to violate her parole. Rosenberg argues that she has effectively been sentenced to an additional 15 years in prison for crimes for which she was never tried. II. SUBJECT MATTER JURISDICTION Before reaching the merits of the present motion, the government contends that this Court lacks jurisdiction over this matter. However, the government is only partially correct. Rosenberg’s claims may be broadly divided into two categories. First, Rosenberg argues that the government abused the nolle, thereby harassing and causing prejudice to her. As such, she claims she is entitled to relief at the hands of this Court, to which the government presented the nolle. Second, Rosenberg attacks the method by which the Parole Commission arrived at its decision to deny her parole. While I have jurisdiction over Rosenberg’s first claim, this Court lacks jurisdiction over the Commission’s alleged procedural violations. A. The Abuse of the Nolle As to the abuse of the nolle, the government contends that the indictment having been dismissed, the case was effectively terminated. Since the government has not attempted to reindict Rosenberg, and, in fact, concedes that, although the nolle was entered without prejudice, the government is now time-barred from prosecuting Rosenberg for the Brinks crimes, it concludes that this Court has no basis of jurisdiction. However, Rosenberg relies on the theory that the government, in effect, prosecuted her in front of the Parole Commission. If her characterization of the parole hearing as a prosecution at the hands of the United States Attorney’s Office for the Southern District of New York is correct, it would be analogous to a renewed prosecution by a second indictment. As discussed infra Part III, courts may preclude the government from renewing a prosecution, see, e.g., United States v. Derr, 726 F.2d 617 (10th Cir. 1984); United States v. Fields, 475 F.Supp. 903 (D.D.C.1979), or reverse a conviction obtained in a trial on a second indictment, see, e.g. United States v. Salinas, 693 F.2d 348 (5th Cir.1982), in order to protect a defendant from harassment resulting from a dismissal of the original indictment. Accordingly, the nolle entered in this Court in 1985 is implicated by the alleged renewal of the Brinks prosecution against Rosenberg. Just as a court is empowered to dismiss a second indictment or reverse a conviction where it determines that the prosecutor has abused the nolle, so I may award appropriate relief, such as remanding Rosenberg’s case to the Parole Commission for a new parole hearing, if I determine that the government has misused the nolle. This authority stems from the court’s supervisory powers, and from Fed.R.Crim.P. 48, which governs the dismissal of charges, and provides that the government may dismiss an indictment only with leave of the court. The court, in effect, becomes a check on the power of the government to dismiss an indictment, in order to ensure that it is not exploited. The fact that the prejudice to the defendant and abuse on the part of the government may not be evident until after the nolle is entered should not preclude a defendant from obtaining relief. This conclusion follows from the Supreme Court’s holding in Parr v. United States, 351 U.S. 513, 517, 76 S.Ct. 912, 100 L.Ed. 1377 (1956), which limits the right to appeal a dismissal to those injured thereby, and held that Parr’s appeal of the dismissal of an indictment against him would not lie. The Court explained that “[t]he testing of the effect of the dismissal order must abide petitioner’s trial, and only then, if convicted, will he have been aggrieved.” Accordingly, in cases addressing violations of Rule 48, courts have precluded and condemned the government’s attempts to renew a prosecution following a dismissal without prejudice. See, e.g., Derr, 726 F.2d 617; Salinas, 693 F.2d 348; Fields, 475 F.Supp. 903. Similarly, in the case at bar, Judge Duffy denied Rosenberg’s motion to enter the nolle with prejudice as premature. Paraphrasing Parr, the testing of the nolle, the dismissal order, must abide Rosenberg’s prosecution at the parole hearing, and only then, if denied parole, will she have been aggrieved. Considering herself now aggrieved, Rosenberg seeks relief. Simply because the government allegedly resurrected the terminated Brinks prosecution in a new forum by its letter to the Parole Commission, rather than by reindicting Rosenberg in the original forum, does not mean the government’s potential abuse of the nolle should escape review. See Government of Virgin Islands ex rel. Robinson v. Schneider, 893 F.Supp. 490 (D.Virgin Islands 1995) (government’s dismissal of indictment without prejudice in the district court, followed by a filing of same charges in the territorial court, violated Rule 48, and district court on habeas petition made its prior dismissal order with prejudice). For the foregoing reasons, I may proceed to the merits of Rosenberg’s argument to the extent that it is based on an asserted abuse of Rule 48. B. Parole Determination Procedures In addition to her allegations that the government has, in effect, prosecuted her for the Brinks crimes, Rosenberg contends that the Parole Commission erred in a number of ways when assessing her eligibility for parole. The government cites the Second Circuit’s decision in Billiteri v. United States Board of Parole, 541 F.2d 938 (2nd Cir.1976) for, inter alia, the proposition that “to the extent the movant has any constitutional claim about the Parole Commission’s procedures or the manner in which it has administered her 58-year District of New Jersey sentence, her only remedy is a habeas corpus petition.” (Government’s Posb-Argument Memorandum of Law, p. 5). It is true that in Billiteri, the Court of Appeals held that the Parole Board is not the “custodian” of a prisoner, and, therefore, in order to establish jurisdiction an action challenging parole procedures must be brought against the warden of the prison in which the petitioner is confined. But habeas is not the only way to attack parole procedures. The Second Circuit explicitly held as much in Williams v. Ward, 556 F.2d 1143, 1150-1151 (2nd Cir.1977), when it clarified the meaning of the holding in Billiteri: [W]e think that, standing alone, [a prisoner’s] request for a new parole hearing ... was a remedy available outside ha-beas corpus, since it ... concerned the manner of parole decision making, not its outcome. We recently suggested as much in Billiteri v. United States Board of Parole, 541 F.2d 938, 946 (2 Cir.1976): The district court has no power to substitute its own discretion for that of the Board. If the court has found that the Board has abused its discretion, it may remand the case to the Board with instructions for correction. If the case was before the court on a petition for habeas corpus, it may order compliance within a reasonable period, failing which it may order the petitioner discharged from custody. In Williams, the defendant had filed a 42 U.S.C. § 1983 claim attacking parole determination procedures adopted by the defendant New York State Board of Parole. Williams requested a new parole hearing, or, in the alternative, immediate release. Rosenberg also makes these alternative requests for relief. While release is a remedy that can be obtained only through petition for habeas, see Williams, 556 F.2d at 1150-1151; see also, Billiteri, 541 F.2d at 947, the Court of Appeals affirmed the district court’s decision, in Williams, to “ignore” the request for release so that it might reach the merits of the claim regarding parole hearing procedures. Williams, 556 F.2d at 1151. Recognizing that Rosenberg’s present motion is not a petition for habeas corpus, I too “ignore” her request for immediate release. However, unlike Williams, I also must ignore her arguments to the extent they raise claims against the Parole Commission itself, as opposed to the government’s alleged interference with the parole determination. Williams brought his § 1983 action against, inter alia, the Parole Board, which was accordingly a party defendant. The § 1983 claim afforded the court a basis upon which to assess the propriety of the Parole Board’s actions. In the present case, Rosenberg is in this Court only as a result of the nolle entered in connection with the Brinks case. The present proceeding is not a habeas petition, nor is the Parole Commission a party. Consequently, her claims in this Court are limited to her allegations concerning the abuse of the nolle, and do not provide this Court with jurisdiction to review the Parole Commission’s actions. To the extent that I discuss parole procedures and the actions of the Parole Commission in the instant case, I do so only to provide sufficient context in which to evaluate the actions of the government and to decide whether it did, in fact, abuse the nolle as alleged. III. DISCUSSION A. Rule 18(a) and the “Leave of Court" Provision Rule 48 of the Federal Rules of Criminal Procedure governs the dismissal of charges. It provides, in pertinent part: (a) By Attorney for Government. The Attorney General or the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant. Although the decision to dismiss charges was historically left entirely within the discretion of the prosecutor, Rule 48(a) now requires that the court grant permission. “The Rule sets forth no criteria to guide the Court in the exercise of its discretion, nor does it require that the prosecutor state his reasons.” United States v. Greater Blouse, Skirt & Neckwear Contractors Association, 228 F.Supp. 483, 486 (S.D.N.Y.1964). Therefore, I must rely on judicial interpretation in ascertaining the scope of discretion afforded by Rule 48(a). In addressing this very issue, the Fifth Circuit has stated: [I]t seems altogether proper to say that the phrase “by leave of court” in Rule 48(a) was intended to modify and condition the absolute power of the Executive, consistently with the Framer’s concept of Separation of Powers, by erecting a check on the abuse of Executive prerogatives. But this is not to say that the Rule was intended to confer on the Judiciary the power and authority to usurp or interfere with the good faith exercise of the Executive power to take care that the laws are faithfully executed. The rule was not promulgated to shift absolute power from the Executive to the Judicial Branch. Rather, it was intended as a power to check power. The Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated. The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest. United States v. Cowan, 524 F.2d 504, 513 (5th Cir.1975). While this analysis provides a useful context within which to consider Rule 48(a), the Court of Appeals’ reading begets another question of interpretation, namely, what is meant by “contrary to manifest public interest”? In Co-loan, the Fifth Circuit said only that the Rule contemplated something more than just protection of the defendant. Id. at 512. In Rinaldi v. United States, 434 U.S. 22, 29-30, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977), the Supreme Court adopted the Fifth Circuit’s “contrary to manifest public interest” standard when reviewing a district court’s denial of a motion to dismiss pursuant to Rule 48(a). Although its analysis was short, the Supreme Court furnished some criteria to consider when evaluating a Rule 48(a) motion, and provided a brief explanation of the purpose behind the Rule. In a footnote, the Court observed: The words “leave of court” were inserted in Rule 48(a) without explanation. While they obviously vest some discretion in the court, the circumstances in which that discretion may properly be exercised have not been delineated by this Court. The principal object of the “leave of court” requirement is apparently to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant’s objection .... But the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest. Rinaldi, 434 U.S. at 30, note 15, 98 S.Ct. 81 (internal citations omitted). With that background in mind, the Court focused its inquiry, stating that “[t]he salient issue ... is ... whether the Government’s later efforts to terminate the prosecution were ... tainted with impropriety. Our examination of the record has not disclosed (and we will not presume) bad faith on the part of the Government at the time it sought leave to dismiss the indictment against petitioner.” Id. at 30, 98 S.Ct. 81. Although the Supreme Court did not hold that a finding of bad faith is a necessary prerequisite to a denial of a motion to dismiss, it certainly opined that the government’s intention in or motivation for seeking dismissal of an indictment is relevant to a determination of whether dismissal is contrary to manifest public interest, and suggested that a finding of bad faith could satisfy the Cowan standard. The decision in Rinaldi is also significant because it creates a presumption of good faith on the part of the prosecutor absent evidence to the contrary. Rosenberg alleges bad faith on the part of the government based on both its initial decision to dismiss the indictment and its subsequent letter written to the Parole Commission in 1994. However, Rosenberg contends that even absent a finding of bad faith, this Court may hold that the nolle has been abused and, in order to protect the defendant, grant relief. Following the Supreme Court’s lead, the Fifth Circuit has clarified the “contrary to public interest” standard first introduced in Cowan and equated it with bad faith on the part of the government. In United States v. Hamm, the Court stated that “the trial judge must look to the motivation of the prosecutor at the time of the decision to dismiss.” United States v. Hamm, 659 F.2d 624, 629 (5th Cir.1981). Presuming good faith, the Fifth Circuit continued: “[njeither this court on appeal nor the trial court may properly reassess the prosecutor’s evaluation of the public interest. As long as it is not apparent that the prosecutor was motivated by considerations clearly contrary to the public interest, his motion must be granted.” Id. at 631. In United States v. Smith, 55 F.3d 157, 159 (5th Cir.1995). the Fifth Circuit expounded its earlier holdings, stating that “[t]he disposition of a government’s motion to dismiss an indictment should be decided by determining whether the prosecutor acted in good faith at the time he moved for dismissal. A motion that is not motivated by bad faith is not clearly contrary to manifest public interest, and it must be granted.” In Cowan, Rinaldi, Hamm and Smith, the defendants consented to the dismissal motions. Therefore, although these cases are instructive in deciphering Rule 48(a)’s leave of court language, they are distinguishable on the facts. However, United States v. Salinas, 693 F.2d 348 (5th Cir. 1982), serves as an illustration of the Fifth Circuit approach in a case where the defendant was unfairly prejudiced by the dismissal. In Salinas, the district court dismissed the indictment. The government then reindicted the defendant and secured a conviction. Because the record showed that the sole reason for the dismissal was the prosecutor’s discontent with the jury selected, the Court of Appeals held that the dismissal should not have been granted. Absent any other available remedy, the conviction on the second indictment was reversed. Although the Fifth Circuit acknowledged that “the primary purpose of the rule is protection of a defendant’s rights,” it held that “[t]he key factor in a determination of prosecutorial harassment is the propriety or impropriety of the Government’s efforts to terminate the prosecution-the good faith or lack of good faith of the Government in moving to dismiss.” Salinas, 693 F.2d at 351. The Fifth Circuit suggested that it is not always inappropriate for the government to dismiss an indictment and later recharge the defendant, but rather that it sometimes amounts to harassment where the prosecutor’s reasons or motivation are improper. The Second Circuit Court of Appeals has not had occasion to analyze the scope and discretion afforded by Rule 48(a). However, this Court, in an opinion by Judge Weinfeld, addressed the leave of court provision, and its interpretation is consistent with the more extensive analysis conducted by the Fifth Circuit. The case is United States v. Greater Blouse, Skirt & Neckwear Contractors Association, where the government moved to dismiss the indictment for lack of evidence. Although the Court noted that the Rule does not expressly require the prosecutor to state his reasons for dismissal, the Court stated that “the Rule contemplates public exposure of the reasons for the abandonment of an indictment, information or complaint in order to prevent abuse of the uncontrolled power of dismissal previously enjoyed by prosecutors. Accordingly, to gain the Court’s favorable discretion, it should be satisfied that the reasons advanced for the proposed dismissal are substantial and the real grounds upon which the application is based.” Greater Blouse, 228 F.Supp. 483 at 486. Continuing its discussion of the standard envisioned by the Rule, the Court held that the prosecutor is entitled to a presumption of good faith and that dismissal should be denied only where “clearly and convincingly ... the public interest requires its refusal.” Id. Although renewal of the prosecution was not contemplated, the Court also stressed that “dismissal is not for the purpose of subjecting a defendant to harassment by the commencement of another prosecution at a different time or at a place deemed more favorable to the prosecution.” Id. at 487. Rosenberg contends that there are two distinct lines of cases addressing Rule 48(a). According to Rosenberg, in the first, the defendant objects to the dismissal motion, and bad faith notwithstanding, protecting the defendant is the court’s primary concern. However, Rosenberg ignores the fact that the Rule is meant to protect the defendant from prosecutorial harassment, which implies bad faith or an improper motive. Dismissal followed by renewed prosecution in and of itself is not prohibited. Rosenberg regards the protection of the defendant from harassment and prosecutorial bad faith as separate and distinct concepts. The cases do not support that contention. See Salinas, 693 F.2d 348, 351 (key factor in determining if dismissal constitutes or will result in harassment is prosecutor’s good faith in making motion); see also, United States v. Olson, 846 F.2d 1103 (7th Cir.1988) (relying, in part, on good faith of prosecutor when assessing appropriateness of rein-dictment); United States v. Del Vecchio, 707 F.2d 1214 (11th Cir.1983) (proceeding on superceding indictment and dismissal of original indictment permissible so long as not brought for purpose of harassing defendant); United States v. Fields, 475 F.Supp. 903 (D.D.C.1979) (appropriateness of dismissal turned on finding of prosecu-torial bad faith, namely that original indictment was obtained without sufficient evidence and for sole, and, therefore, improper purpose of securing defendant’s cooperation against another); but see, United States v. Poindexter, 719 F.Supp. 6, 11 (D.D.C.1989) (drawing distinction between subjective good faith and objective harassment). In the second line of cases, so Rosenberg’s argument continues, the defendant consents to dismissal, but the court may deny the motion if it finds that it is contrary to public interest; in such cases, prosecutorial bad faith is often, if not always, the benchmark of a determination that a dismissal is contrary to public interest. However, in N.V. Nederlandsche, this Court refused to dismiss an indictment on the basis that the prosecution would be extremely costly and uncertain to succeed. Although there was no finding of bad faith and the reasons proffered were legitimate, the public interest in prosecuting the charges, which were “of the most grave and serious nature”, outweighed the government’s other concerns. N.V. Nederlandsche, 428 F.Supp. at 116-117. I am not persuaded that there are two distinct and exclusive approaches, dependent upon whether the defendant objects, to determining whether to grant leave of the court to dismiss an indictment. In fact, while the cases are clear that bad faith and the more nebulous concept of “contrary to manifest public interest” guide a court’s inquiry, courts have differed on exactly how they define those factors and on which they rely. Moreover, Rosenberg’s classification of the cases into two groups is too simplified a model and erroneously suggests that there are only two basic fact patterns that might present themselves. Arguably, there are at least two additional lines of cases, (i) in which the defendant does not object to dismissal, but does object to dismissal without prejudice; and (ii) in which the prejudice of dismissal to the defendant is not apparent at the time of dismissal and is only discovered upon the happening of subsequent events, e.g., a reindictment or, as in this case, the use of the dismissed charges in a parole hearing. Since the leave of the court requirement included in Rule 48(a) is not defined, and since courts have employed various constructions, I consider the motivations of the prosecutor, the effects of dismissal, including whether the dismissal is with or without prejudice, on the defendant, and the public interest, more generally, when evaluating the nolle. The weight accorded to any one of these factors may vary with the facts of the case. For example, in a case where the defendant joins the motion to dismiss, a court need not consider the possibility that the defendant will be prejudiced. .As to bad faith, in particular, I hold that, as a general rule, a finding of bad faith is not required, the defendant’s objection to dismissal notwithstanding, but is a relevant, and sometimes determinative, factor in a court’s evaluation of a motion to dismiss an indictment. B. In 1985, Dismissal Without Prejudice Was Appropriately Granted Broadly stated, Rosenberg argues that the government abused the nolle by dismissing the indictment against her, thereby depriving her of the right to contest the evidence at trial, and then “raising the very same charges anew in a forum in which she was stripped of nearly every right and protection”, (Defendant’s Memorandum in Support of Motion, p. 2), in order to punish her for her alleged involvement in the Brinks conspiracy. Moreover, Rosenberg contends that the government’s actions contravene both Judge Lacey’s parole recommendations and my own treatment of dismissed Brinks charges with respect to Alan Berkman, who was indicted along with Rosenberg. When the government moved for dismissal in 1985, it stated that Rosenberg’s lengthy sentence for her New Jersey crimes rendered prosecution of the Brinks charges unnecessary. On its face, the government’s proffered justification is sufficient for dismissal. “Neither the trial court nor this Court on appeal can substitute its judgment for the prosecutor’s determination or can second guess the prosecutor’s evaluation.” Salinas, 693 F.2d at 351. Starting with a presumption of good faith, a decision to forego additional prosecution for reasons of judicial economy, and specifically, because the defendant has already been sentenced to a long prison term, constitutes more than a “mere con-clusory interest” and is a substantial reason for dismissal. Id. at 352; see also, United States v. Ammidown, 497 F.2d 615, 620 (C.A.D.C.1973) (“court will not be content with a mere conclusory statement by the prosecutor that dismissal is in the public interest, but will require a statement of reasons and underlying factual basis .... [however] court does not have primary responsibility, but rather the role of guarding against the abuse of prosecutorial discretion.”). 1. Dismissal With or Without Prejudice Rosenberg has repeated throughout her briefs and at oral argument that she objected to the nolle. While it is undisputed that Rosenberg did object to the nolle being entered without prejudice, the present record does not support her contention that she objected to the dismissal itself. In his order denying Rosenberg’s motion to have the nolle entered with prejudice, Judge Duffy explained that “[t]he defendant now moves that the Nolle be entered ‘with prejudice’ since she is fearful that she may be reindicted should she be successful in overturning her New Jersey conviction.” There is nothing in the contemporaneous record to support the claim that Rosenberg urgently desired to go to trial and would prefer an immediate trial to a dismissal without prejudice and the mere possibility of a trial in the future. Rather than insisting on contesting the Brinks charges in court, Rosenberg, understandably, wanted to ensure, if possible, that she would never be tried on the Brinks charges. Moreover, it appears that at that time Rosenberg credited the government’s reasons for the nolle because, according to Judge Duffy’s order, she only anticipated reindictment if the New Jersey conviction were reversed, reasoning that the government would pursue the Brinks charges if Rosenberg were no longer committed to a lengthy sentence, let alone any sentence at all. Rosenberg does not truly contest the nolle in the first instance, but rather the alleged abuse of the nolle that began with AUSA Bartlett’s November 8, 1994 letter to the Parole Commission. Rosenberg’s presently asserted preference regarding trial on the Brinks charges notwithstanding, Judge Duffy correctly denied Rosenberg’s motion to enter the nolle with prejudice. Several circuits, including the Second Circuit, have recognized that a dismissal pursuant to Rule 48(a) is generally without prejudice. See United States v. Ortegar-Alvarez, 506 F.2d 455, 458 (2nd Cir.1974); see also, DeMarrias v. United States, 487 F.2d 19, 21 (8th Cir.1973); United States v. Chase, 372 F.2d 453, 463-464 (4th Cir.1967). In fact, “it is precisely because a dismissal under Rule 48(a) does not bar a subsequent prosecution that the rule requires the consent of the court.” United States v. Davis, 487 F.2d 112, 118 (5th Cir.1973). In denying Rosenberg’s motion, Judge Duffy reasoned that there was no case or controversy. At the time the order was entered, Rosenberg was not aggrieved. Cf., Parr v. United States, 351 U.S. 513, 76 S.Ct. 912, 100 L.Ed. 1377 (1956) (holding defendant has no right to appeal dismissal unless and until reindict-ed and convicted); Lewis v. United States, 216 U.S. 611, 30 S.Ct. 438, 54 L.Ed. 637 (1910) (defendant not legally aggrieved by nolle prosequi and, therefore, had no right to appeal). Even had she been reindicted, Rosenberg might not have been legally aggrieved as reindictment is appropriate under some circumstances. Accordingly, there was no reason to completely foreclose the possibility of renewal. On the other hand, as previously noted, prosecuto-rial bad faith and/or prejudice to the defendant, which renders further prosecution unfair or improper, may not be discovered until some time after the dismissal. However, that is precisely the reason why Rosenberg’s argument that subsequent prosecution should be prohibited was premature, and why the issue is properly before me now. 2. Were The Government’s Proffered Reasons for Dismissal its Real Reasons? Although, on their face, the government’s reasons for dismissal were substantial, Judge Weinfeld said in Greater Blouse that the court must also be satisfied that the proffered reasons are “the real grounds upon which the application is based.” Greater Blouse, 228 F.Supp. at 486. Rosenberg maintains that the government’s stated bases for the nolle were falsehoods. Rosenberg argues first that the government was not really concerned with preserving government resources. She notes that the government intended and, in fact, proceeded with a second Brinks trial, and also that the government did not nolle a separate case against Rosenberg pending in Washington, D.C. on bombing conspiracy charges related to her New Jersey crimes. However, as the government rightly points out, “[e]very defendant in every case constitutes a separate burden on the justice system. Each is treated separate and apart from her co-defendants; each files motions ... that must be responded to and decided; each exacts a separate toll on trial resources by jury addresses, cross-examination, the presentation of evidence and the submission of ... applications for relief; each, upon conviction has a separate right to appeal ... and each may collaterally attack every separate conviction [by habeas petitions].” (Government’s Memorandum of Law, p. 48). The fact that the government was prepared to try other defendants on the Brinks charges, standing alone, does not mean that trying Rosenberg would come at no extra cost. The prosecutor traditionally has and continues to be the best judge of how to allocate his office’s resources. The fact that the government was pursuing other charges against Rosenberg in Washington, D.C., which were later dismissed on double jeopardy grounds, does no more to support Rosenberg’s contention. It cannot be disputed that trying Rosenberg in both D.C. and New York would have been more costly than trying her in just one of those forums. Therefore, the decision to dismiss the Brinks charges, but maintain the D.C. charges, does not belie the government’s interest in conserving resources. On the contrary, the fact that the D.C. charges were related to the New Jersey crimes, for which Rosenberg had already been tried, made it more likely that between the D.C. charges and the Brinks charges, the D.C. case would require less expenditure. The Brinks charges were unrelated and would require the government to start from scratch regarding its preparations as to Rosenberg. Finally, although there is only one federal government, the reality is that there are many United States Attorney’s Offices. It is unlikely that the same prosecutors were handling the Brinks and D.C. charges, let alone the same office. Therefore, any evaluation of the validity of the government’s proffered reasons for dismissal in one case can hardly be informed by the government’s actions in another case in a different district and circuit. To the extent that the government’s handling of the Brinks and D.C. indictments are inconsistent, it is not enough to overcome the presumption of good faith afforded this District’s prosecutor in moving to dismiss. Even Rosenberg does not seriously contend that the government dismissed the Brinks charges with the intention from the start of later using those charges to deny her parole, knowing full well that she would be less equipped to defend herself in a parole hearing as opposed to at trial. This conspiracy theory is farfetched and there is no evidence that the government ever had such a purpose in mind, and certainly not when it moved to dismiss the Brinks indictment. ■ In fact, given the way Rosenberg behaved at the New Jersey trial and sentence, and in light of Judge Lacey’s recommendation and warning to the Parole Commission about releasing Rosenberg, the government likely did not expect that Rosenberg would be seriously considered for parole only 15 years into her 58 year sentence. Nevertheless, Rosenberg still maintains that the government was insincere in the reasons it gave for the nolle. She theorizes that the government’s case against her was weak; rather than see Rosenberg’s case be consolidated with the trials of Alan Berkman and Marilyn Buck, lest the lack of evidence against Rosenberg be highlighted by the stronger cases against the other defendants, the government dismissed the indictment. This theory necessitates that I make two assumptions: (i) that the evidence against Rosenberg was indeed weak, or, at least, that the government deemed it so; and (ii) that based on that belief, the government was willing to lie to the court in order to avoid consolidation at all costs. However, this attack on the government’s good faith also stretches credibility. Although the motion to dismiss the ease against Rosenberg did follow the consolidation motion, that alone proves nothing. If the government was merely opposed to consolidation, it could have opposed that motion, as it did regarding the remaining defendants. If the motion was granted in spite of the government’s opposition, the government still could have sought dismissal as a last resort. Moreover, as I remarked at oral argument, “my experience has been that the defendant who regards himself or herself as having much less evidence asks for a severance, not a consolidation.” (Tr. p. 26). Rosenberg countered by suggesting that the jury could not ignore the striking contrast between the overwhelming evidence against Buck and the dearth of evidence against Rosenberg. Even accepting that possibility, and without debating trial strategy and the seemingly considerable risks of implementing that particular strategy, Rosenberg fails to explain why she not only wished to consolidate her trial with Buck’s, but to ally herself with Buck. After all, the two defendants were both represented by the same attorney, Susan Tipograph, and would necessarily be viewed together in the eyes of the jury. Therefore, either Buck and Rosenberg contemplated a unified defense, or, if Rosenberg truly intended to distinguish herself from Buck, so that the stronger the case against Buck, the weaker the case would appear to be against Rosenberg, Tipograph would have faced an irreconcilable conflict of interest. Speculation aside, the record does not support the contention that the government feared consolidation or that it considered the evidence against Rosenberg as weak. The mere fact that the government’s motion to dismiss followed on the heels of Rosenberg’s motion to consolidate is simply not enough. That Rosenberg contests the evidence, and may be able to cast doubt upon certain aspects of the government’s case, does not mean that Rosenberg’s version is more persuasive, or, more importantly, that the government found it more persuasive. The prosecutor has an independent obligation not to indict where there is insufficient evidence to support a conviction and to see that justice is served, not to secure convictions for the sake of winning. That duty, coupled with the presumption of good faith, and the lack of anything more than mere speculation and possibility, makes it impossible for me to adopt Rosenberg’s theory that the government dismissed the case for reasons other than those stated. In light of the foregoing, I hold that the dismissal without prejudice was valid at the time the nolle was entered. However, the inquiry does not end there. C. AUSA Bartlett’s 19.94. Letter to the Parole Commission The main thrust of Rosenberg’s argument surrounds the propriety of the government’s letter to the Parole Commission. Rosenberg contends that the letter constituted an abuse of the nolle and runs afoul of the instructions of two district judges, namely Judge Lacey and myself. 1. The Government’s Letter Was Not Precluded by Judicial Decree Rosenberg emphasizes Judge Lacey’s pronouncement that “in sentencing I’m giving no consideration to Rosenberg’s involvement, if any, in the acts and crimes charged in the Southern District of New York ... my sentence here is not based in the slightest on any involvement that Rosenberg may have had in what is there charged.” (Tab 4, p. 46). From this Rosenberg reasons that Judge Lacey intended that the Parole Commission not consider her alleged involvement in the Brinks conspiracy in any way. As previously explained, I question Rosenberg’s interpretation. See discussion supra Part I.B. Simply because the alleged offenses were not part of the calculation of the actual sentence does not mean they may not be considered in determining release on parole. The Second, Sixth, Seventh, Eighth, Tenth and Eleventh Circuits “have reached the conclusion that the Commission may consider information that the sentencing judge determined ... to exclude from his or he