room. After waiting there for a short period, however, the agents were told that Mayes had changed his mind and no longer wanted to speak to them. At this time, the agents left without ever seeing Mayes.
It is not necessary to resolve the glaring factual discrepancies in the competing versions of the events that transpired on the day in question because, even if this Court assumes that Mayes' version is true, he would not be entitled to dismissal of the indictment. According to the Seventh Circuit in United States v. Serlin, 538 F.2d 737, 749 (7th Cir. 1976), "a dismissal on the ground of government misconduct is justified only in situations where, due to government action, the defendant cannot receive a fair trial and therefore is deprived of due process of law." See also United States v. Agurs, 427 U.S. 97, 110 n. 17, 49 L. Ed. 2d 342, 96 S. Ct. 2392, 2400 n. 17 (1976). If the rule were otherwise and an indictment could be dismissed without a showing of prejudice, a dismissal for misconduct would amount to a "punishment of society for misdeeds of a prosecutor." United States v. Stanford, 589 F.2d 285, 299 (7th Cir. 1978), cert. denied, 440 U.S. 983, 99 S. Ct. 1794, 60 L. Ed. 2d 244 (1979); see also United States v. Abbott Laboratories, 505 F.2d 565, 571 (4th Cir. 1974) (question depends on fairness to defendants "not whether misconduct of government warrants punishment which also forfeits the rights of society"), cert. denied, 420 U.S. 990, 95 S. Ct. 1424, 43 L. Ed. 2d 671 (1975). The rule is not otherwise.
Thus, the indictment against Mayes will not be dismissed here because, under his proffered version of the events, there has been no conceivable effect on his right to a fair trial. Mayes has suggested no more than that the agents improperly attempted to speak to him. This Court cannot imagine how this could affect Mayes' right to a fair trial. Indeed, not even Mayes has suggested that this right is affected. Thus, while the Court is cognizant of the seriousness of the allegations that have been raised, it finds that they do not merit dismissal of the indictment in this case.
For the foregoing reasons, Felix Mayes' motion to dismiss the indictment against him on the grounds of prosecutorial misconduct is denied. It is so ordered.
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