In 2024, the DOJ criminally charged various individuals in connection with an alleged Indian bribery scheme. (See here for the prior post).
In mid-August, Judge Nicholas Garaufis (E.D.N.Y.) – after much back and forth with the DOJ – granted the DOJ’s motion to dismiss various non-FCPA fraud charges against certain defendants.
However, Judge Garaufis denied the motion to dismiss FCPA and obstruction charges against certain other defendants (see here for the prior post) while noting “the court’s conclusion does not mean that additional evidence to support […] proffered reason to dismiss does not exist. It means only that the factual support that McCotter has provided is not sufficient.”
The back and forth continued (see here) and on September 3rd Judge Garaufis again denied the DOJ’s motion to dismiss FCPA and obstruction charges against certain other defendants.
In pertinent part, Judge Garaufis’s Memorandum and Order states [various internal citations omitted]:
“As detailed in this court’s prior orders, the court’s role on a Rule 48(a) motion is narrow and distinctly judicial: “to ensure the Executive satisfies the Rule’s procedural and substantive components.” (August 10 Order at 20; see also June 26 Order. Given McCotter’s apparent confusion regarding these distinct components, the court proceeds first by clarifying Rule 48 (a)’s requirements and then by explaining why-as to the requested dismissal of Counts One [FCPA] and Five [Obstruction] -the procedural requirements are not met on the current record.
As detailed in the August 10 Order, Rule 48(a)’s procedural component has two requirements: the government must provide “a statement of reasons and underlying factual basis.” (August 10 Order at 20 (emphasis added).) Specifically, the government must provide both: (1) its actual reasons for the requested dismissal (the “proffered rationale”); and (2) “sufficient factual information” for the court to ”be satisfied” that the proffered rationale is both “real” and “substantial.” (Id. at 21.) For the factual basis to be “sufficient,” the government must provide more than
bare conclusions and unsupported statements. Instead, the government must give the court the specific facts-the evidence-allowing the court to reach the proffered rationale from the evidence presented. […] Put differently, the factual support cannot be deemed “sufficient” when, as here, there is an absence of factual support for the proffered rationale, or an “incongruity” between the “proffered … rationale and the record.”As compared to the procedural requirements, Rule 48(a)’s substantive requirements are less well defined. That said, the Supreme Court long ago made clear that the government can satisfy the requirements when the decision to terminate a prosecution is “motivated by considerations which cannot fairly be characterized as ‘clearly contrary to manifest public interest.”‘ In the years since, lower courts have cited “the protection of a defendant’s rights” and “a prosecutor’s bad faith” as additional “relevant” considerations to the substantive inquiry. However, these courts continue to disagree about the extent to which any one of these considerations may weigh in favor (or against) a court’s decision to grant leave under Rule 48(a). The Second Circuit has “declined to define ‘the precise contours of a district court’s authority in resolving a Rule 48(a) motion.”‘
[A footnote states: Given that today’s decision-just like the court’s August 10 decision to reserve judgment-rests exclusively on procedural grounds, the court need not (and thus does not) reach or otherwise attempt to define the exact boundaries of a court’s permissible inquiry into the substantiality of the government’s proffered reasons for dismissal.].
In light of McCotter’s refusal to provide additional facts as requested in the August 10 Order, and because the August 11 and 14 letters do not cure the procedural deficiencies identified in the August 10 Order, the court must deny the pending portions of the Rule 48(a) Motion.
[Again, a footnote states: The court reiterates that due to the procedural deficiencies in McCotter’s submissions, the court in this Order does not reach Rule 48(a)’s substantive component: here, whether the Department has provided a “substantial” reason for the proposed dismissal of Counts One and Five.]
In the August 11 and 14 letters, Mccotter makes clear that the proffered rationale for the requested dismissal of Counts One and Five were fully set forth in his July 4 letter: Overlapping Bases 1-6; and the “charge-specific” reasons to dismiss the FCPA and obstruction charges, respectively. Rather than heed the court’s instruction to provide additional facts in support of those reasons, Mccotter asserts that the statements in his July 4 and August 11 letters-sworn to on August 14, 2026-are sufficient.
Not so.
The court cannot agree with McCotter’s unsubstantiated, self-serving pronouncements that: (1) on a Rule 48(a) motion to dismiss an indictment, the decisionmaker’s “statements … provide any necessary evidentiary basis in full”; and (2) the ”views” he shared in his July 4 and August 11 letters provide “far more in formation” than Rule 48(a) “requires.”
As explained on pages 23-30 of the August 10 Order, for each Overlapping Basis, McCotter’s statements do not amount to specific facts that allow the court to reach McCotter’s stated conclusions-i.e., the proffered reasons for dismissal of Counts One and Five offered in Overlapping Bases 1-6. That these statements are now sworn does not change the court’s analysis, nor does it change the court’s conclusion that “none of McCotter’s ‘overlapping’ bases for dismissal provide any factual basis for his decision to end this prosecution.” (August 10 Order at 23.) The lack of any means for the court to evaluate many of McCotter’s statements is particularly problematic given that for at least one Overlapping Basis, the only evidence before the court appears to contradict the proffered rationale: that Counts One and Five should be dismissed because India “investigated” the “allegations in this case” and “found no actionable misconduct.” (quoting July 4 Ltr. at 6) (observing that the evidence offered to support these claims appears to show that India decided “not to investigate,” that the alleged conduct in those cases ”bear very little resemblance (if any) to the alleged conduct in the Indictment,” and that “no document concludes that nothing inappropriate happened” in this case).) By definition, evidence that appears to contradict the government’s proffered rationale cannot serve as sufficient factual support for that stated reason to dismiss under Rule 48(a)’s procedural component.
[A footnote states: While McCotter insists that it is his role alone to interpret and apply the Blanche Memorandum to the alleged conduct, it is unquestionably the court’s duty to review the facts before it particularly when, as here, the Memorandum is offered as the only “evidence” in support of the proffered rationale to dismiss Count One.]
In sum, Rule 48(a) requires the government to submit both reasons for the requested dismissal and sufficient factual support for those reasons. For the reasons thoroughly explained in the August 10 Order, and the additional reasons above, McCotter’s unsubstantiated, conclusory statements may amount to reasons for his requested dismissal, but they do not also serve as sufficient underlying facts in support of those reasons. As a result, Rule 48(a)’s procedural requirements are not met, and the court must deny the Department’s Motion to dismiss Counts One and Five.
[A footnote states: Beyond his refusal to submit the necessary factual support, McCotter’s reasoning in the August 14 letter is unpersuasive. For example, Mccotter contends that he is unable to provide factual support for “a lack of evidence showing that the FCPA charges satisfied the Blanche Memorandum.” Yet, he could have provided-as the Government did to support its Rule 48(a) motion in Heam – affidavits and reports supporting the purported lack of evidence, including, for example, expert reports supporting his statement that the alleged bribery
payments “could be characterized as customer rebates, which are a common and acceptable commercial practice.” Instead, all the court has to go on are McCotter’s unsubstantiated ”views,” the Blanche Memorandum’s text, and the Indictment’s allegations.]The court’s conclusion that McCotter’s sworn statements do not provide the necessary evidentiary basis under Rule 48(a)’s procedural component is bolstered by the Rule’s text, purpose, and history.
The Rule’s “leave of court” language clearly necessitates judicial review, and this review is meant to serve as a critical check on Executive power. After all, Rule 48(a)’s requirement that the government set forth the reasons and underlying factual basis for its dismissal determination, is meant to help guarantee the equal administration of justice, uphold the rule of law, and at the very least ensure that a prosecutor’s reasons to dismiss an indictment returned by a grand jury can be scrutinized by courts and the public.
[…]
McCotter’s proffered rationale to dismiss Count One against Non-Appearing Defendants relies -at least in part-on a vague decision not to devote further resources to this prosecution, speculative proof problems regarding unnamed witnesses, and illusive claims about the likelihood of the foreign defendants’ future arrests and the uncertainty of the prosecution’s success based on undisclosed “evidence.” […]
Moreover, the August 11 and 14 letters merely resubmit the proffered reasons already rejected by this court in the August 10 Order and do not add additional facts for those reasons. […] And the total disregard for the procedural requirements of Rule 48(a) means that the Department’s Rule 48(a) Motion to dismiss Counts One and Five must be denied.
Here, the evidence ( or lack thereof) tells a story that either does not match or does not support the reasons given for McCotter’s decision to dismiss with prejudice Counts One and Five as alleged against Non-Appearing Defendants. The court simply cannot ignore glaring insufficiencies in the record or the apparent disconnect between the decision made and the facts given. Accepting unsubstantiated reasons or reasons that appear to be directly contradicted by the evidence that is before the court, would defeat the purpose of the Rule 48(a) enterprise. “If judicial review is to be more than an empty ritual, it must demand something better than the explanation[s] offered for the action taken
in this case.”
In conclusion, Judge Garaufis stated:
“For the reasons fully explained in the court’s August 10 Order, and the additional reasons explained above, the Department has not provided the sufficient factual information Rule 48(a) requires. Thus, the Department has failed to satisfy Rule 48(a)’s threshold, procedural requirements. Therefore, the Department’s Rule 48(a) Motion to dismiss Counts One and Five with prejudice as alleged against Non-Appearing Defendants Ranjit Gupta, Cyril Cabanes, Saurabh Agarwal, Deepak Malhotra, and Rupesh Agarwal with prejudice is DENIED WITHOUT PREJUDICE.
The court continues to encourage the Department to submit sufficient factual support for its proffered reasons for dismissal.”
