D.C. Circuit to federal district judges: Don’t tell DOJ how to exercise its charging discretion

A deferred prosecution agreement (DPA) allows the Government to condition a defendant’s compliance with the law upon the threat of future prosecution, based on facts admitted in the DPA.  Charges are initially filed, but if the defendant complies, the charges are then dismissed.  The Speedy Trial Act tries to assure the timely prosecution of cases, once formal criminal proceedings have been initiated against a criminal defendant.  But the Act allows a district court to exclude the DPA compliance time-frame from the time period under the Speedy Trial Act, so as to allow enough time for the defendant to comply with the terms of the agreement (otherwise, the argument goes, the Speedy Trial Act time period will expire before the defendant has enough time to comply with the DPA).  Can a federal court deny the exclusion of the DPA time-frame from the Speedy Trial Act time-frame, based solely on its disagreement with the Government’s decision to use a DPA?

No, said the United States Court of Appeals for the District of Columbia Circuit in United States v. Fokker Services.  A Dutch company, Fokker Services, admitted to violating federal export control laws and sanctions related to Iran, Sudan, and Burma.  It did this before any federal agency had even begun any investigation.  Fokker negotiated a DPA with the Government – in which it admitted wrongdoing – that was to last for 18 months.  So the Government filed the DPA along with a criminal information charging Fokker with one count of conspiracy to violate the International Emergency Economic Powers Act.  A simultaneous motion to exclude time under the Speedy Trial Act was also filed by both parties.  That was June 2014.  In February 2015, the district court denied the motion, criticizing the Government’s charging decision as “anemic,” as one that would “promote disrespect for the law,” and as an “inappropriate exercise of prosecutorial discretion.”

Both parties appealed and sought mandamus as the appropriate remedy.  In an opinion by Judge (and Supreme Court short-lister) Srinivasan, the D.C. Circuit recognized that this was the first time a trial court had denied a joint motion of this kind.  The court emphasized that primacy in making prosecutorial charging decisions belongs to the executive branch.  Consequently, according to the Court, judicial power is “at its most limited” when reviewing the executive’s charging decisions.  This is because the Take Care Clause assigns law-execution power to the Executive.  Also, the court said, the judiciary lacks the competence and information to make intelligent decisions about appropriate charges for a given defendant, and judicial supervision of executive charging decisions would bring systemic costs, such as chilling law enforcement, causing delays, and impairing the constitutional functions of the executive branch.

Moreover, the court found, this is not like rejecting a plea agreement.  While a district judge certainly has authority to reject negotiated pleas, doing so ultimately bears on the court’s legitimate powers over sentencing (this is true even of charge bargains, as compared to sentencing bargains).  Unlike a plea agreement, a DPA goes to the heart of the executive’s power to charge a person with a crime, or not.  In other words, a DPA relates to charging, whereas a plea agreement relates to sentencing; consequently, a court may supervise and reject a plea agreement in ways that it cannot supervise and reject a DPA.

The D.C. Circuit therefore concluded that the district court’s decision was erroneous and that mandamus was appropriate.

The opinion is here.


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