Academic journal article Harvard Law Review

Criminal Law - Separation of Powers - D.C. Circuit Holds That Courts May Not Reject Deferred Prosecution Agreements Based on the Inadequacy of Charging Decisions or Agreement Conditions

Academic journal article Harvard Law Review

Criminal Law - Separation of Powers - D.C. Circuit Holds That Courts May Not Reject Deferred Prosecution Agreements Based on the Inadequacy of Charging Decisions or Agreement Conditions

Article excerpt

CRIMINAL LAW--SEPARATION OF POWERS--D.C. CIRCUIT HOLDS THAT COURTS MAY NOT REJECT DEFERRED PROSECUTION AGREEMENTS BASED ON THE INADEQUACY OF CHARGING DECISIONS OR AGREEMENT CONDITIONS.--United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016).

Since the Arthur Andersen prosecution in which thousands of innocent workers lost their jobs, the Department of Justice (DOJ) has increasingly turned to deferred prosecution agreements (DPAs) to avoid the collateral consequences of a corporate criminal conviction. (1) In a DPA, the government agrees to dismiss filed charges if a corporation complies with negotiated conditions that are aimed at punishing the misconduct and allowing the corporation to demonstrate rehabilitation. Traditionally, judicial scrutiny over the DPA's terms has been "essentially nonexistent." (2) However, three recent district court decisions have attempted to assert a more substantive role for the court--declaring that an Article III judge is not a "potted plant" (3) or "rubber stamp" (4) when reviewing DPAs. The D.C. Circuit subsequently curtailed these efforts in United States v. Fokker Services B.V., (5) in which it held that to preserve "the Executive's long-settled primacy over charging," (6) a court is not authorized to reject a DPA based on a finding that the "charging decisions" and "conditions agreed to in the DPA" are inadequate. (7) By ostensibly precluding judicial review of a DPA's negotiated terms, the D.C. Circuit overcorrected and reinforced the executive branch's unchecked discretion over DPAs by reassuring prosecutors that future courts will rubber stamp such agreements.

Fokker Services B.V. is a Dutch company that provides products and technical services to the aerospace industry. In 2010, Fokker self-reported to government officials that it had possibly violated U.S. sanctions and export control laws by selling aircraft parts to customers in Iran, Sudan, and Burma. (8) With Fokker's cooperation, a four-year federal investigation revealed that the company had unlawfully earned around $21 million from 1147 transactions. (9) The DOJ negotiated a DPA with Fokker and filed it in the United States District Court for the District of Columbia along with an information charging the company with conspiracy to violate the International Emergency Economic Powers Act. (10) The DPA provided that if Fokker would "continue full cooperation with the government, implement its new compliance policy, and pay fines and penalties totaling $21 million," (11) the DOJ would move to dismiss the charge after eighteen months. (12)

Because the Speedy Trial Act (13) (STA) requires federal criminal trials to commence within seventy days of filing charges, (14) both parties moved to exclude the eighteen-month period under 18 U.S.C. [section] 3161(h)(2), which allows for the exclusion of "[a]ny period of delay during which prosecution is deferred by the attorney for the Government pursuant to written agreement with the defendant, with the approval of the court, for the purpose of allowing the defendant to demonstrate his good conduct." (15) However, District Judge Leon, noting that the request was subject to court approval, denied the joint motion after concluding the DPA was too lenient. (16) Judge Leon held that the DPA was an inappropriate exercise of prosecutorial discretion and criticized the DOJ for "prosecut[ing] so anemically" a company that had assisted some of the nation's "worst enemies." (17) Specifically, he criticized the DPA because it failed to prosecute individual actors, required such a brief probationary period, imposed a fine that did not exceed Fokker's illicit revenue, and relied on self-reporting instead of independent monitoring to ensure compliance. (18)

Fokker and the government appealed the district court's denial of the joint motion to exclude time. (19) The D.C. Circuit vacated the order and remanded with an order to exclude the time. (20) Writing for the panel, Judge Srinivasan (21) concluded that the phrase "approval of the court" in [section] 3161(h)(2) should be construed in light of its constitutional implications and potential separation of powers concerns. …

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