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DOJ Tells DC Circuit – Hands Off Our DPAs


This February post highlighted Judge Richard Leon’s (D.D.C) refusal to rubber stamp a DOJ deferred prosecution agreement in U.S. v. Fokker Services (an enforcement action which resolved criminal charges against Fokker for unlawfully exporting U.S. origin goods and services to Iran, Sudan, and Burma via a DPA).

Although the action was not an Foreign Corrupt Practices Act action, NPAs and DPAs are the predominate way in which the DOJ resolves FCPA enforcement actions against business organization.

Thus the appeal in Fokker Services is certainly worth watching.

Recently the DOJ filed this opening brief in which it argued that courts need to keep their hands off of DOJ DPAs.

In summary fashion, the DOJ argues as follows (internal citations omitted).

“As early in the Nation’s history as the year 1800, then-Congressman (later Chief Justice) John Marshall explained in a speech before the House of Representatives that, under the principle of prosecutorial discretion, the Executive Branch possesses “an indubitable and a constitutional power” to “direct that the criminal be prosecuted no farther.” “This is no interference with judicial decisions,” Marshall explained, “nor any invasion of the province of a court.” Id. Making a similar point in a more recent decision, this Court explained that, “when the government is challenged for not bringing as extensive an action as it might, a district judge must be careful not to exceed his or her constitutional role.” The decision below violates this separation-of-powers principle by improperly interfering with the Executive Branch’s exercise of prosecutorial discretion in a criminal case. Whether through appellate review under the collateral-order doctrine, or by issuing a writ of mandamus, this Court should reverse the district court’s aggrandizement of its judicial role well beyond settled constitutional limits.

It is well-established that the Executive Branch has broad discretion to determine when to prosecute an individual for violation of the criminal laws. That principle applies in a variety of different contexts, such as the dismissal of criminal charges, evaluation of plea agreements, and even review of consent decrees and similar civil agreements. Courts, including this Court, have repeatedly stressed the bedrock principle that Article III courts cannot intrude upon the prosecutorial discretion of the Executive Branch.

The principle is equally applicable in the context of a DPA negotiated to exclude time under the Speedy Trial Act. The text, structure, and history of the Speedy Trial Act establish that district courts have authority to review DPAs to ensure that they have been negotiated “for the purpose of allowing the defendant to demonstrate his good conduct.” Nothing in the Speedy Trial Act suggests that Congress altered the established prosecutorial-discretion framework by authorizing district courts to review intrusively the terms of DPAs for excessive leniency toward defendants. Indeed, to the extent that the Act is ambiguous about the scope of district-court review, it must be construed to avoid any clash with established principles of constitutional law.

Measured against this yardstick, the district court’s order was clearly erroneous. The court expressly premised its decision on its view that the government had been too lenient toward the corporate defendant — as well as, remarkably, its surprise that the government did not prosecute any individual corporate officers. Nothing within the district court’s supervisory powers allows it to intrude on the prosecutorial function and violate the separation of powers in this fashion.”

See here for Fokker Services opening brief.

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