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212

Judicial Discretion to Set Aside

The court may set aside a waiver of indictment, and, as in the case of a motion to set aside a plea of guilty, the court's exercise of discretion will be upheld on appeal unless it is clearly erroneous. However, the courts are not as likely to set aside a waiver of indictment as a guilty plea, for the right to be indicted, though valuable, involves only the procedure for initiating a criminal prosecution. Setting aside a guilty plea, on the other hand, is fundamental to determining the defendant's guilt. See Williams v. United States, 410 F.2d 370 (3d Cir. 1969); Bartlett v. United States, 354 F.2d 745 (8th Cir.), cert. denied, 384 U.S. 945 (1966).

Note that a court's allowance of the withdrawal of a guilty plea does not compel the withdrawal of a waiver of indictment entered in conjunction with the plea. See United States v. Scavo, 593 F.2d 837 (8th Cir. 1979); United States v. C.F.W. Construction Co., 583 F. Supp. 197, 206 (D.S.C.), aff'd, 749 F.2d 33 (4th Cir. 1984).