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The Return Of Fokker

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The 2016 D.C. Circuit opinion in U.S. v. Fokker Services was not a Foreign Corrupt Practices Act enforcement action, but was nevertheless highlighted on these pages because it involved the authority of a trial court judge regarding deferred prosecution agreements (which are frequently used to resolve FCPA enforcement actions).

As highlighted in this post, the D.C. Circuit held that trial court judges lack authority to reject DOJ DPAs because the charging authority of the Executive branch (the DOJ) “embraces decisions about whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges once brought.”

This prior post highlighted the DOJ’s May 2020 decision to dismiss criminal charges against Michael Flynn (President Trump former National Security Advisor) even though Flynn previously pleaded guilty to a single count of making false statements to FBI investigators. Although not an FCPA matter, it was highlighted on these pages because there was previously an FCPA parallel when the DOJ dropped FCPA charges against a defendant that previously pleaded guilty.

Yesterday, the D.C. Circuit returned to Fokker in holding that the trial court judge in the Flynn matter has no authority other than to dismiss the criminal case against Flynn.

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