Checking in on the back and forth between the DOJ and Judge Nicholas Garaufis (E.D.N.Y.).
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 [Count One] and obstruction charges [Count Five] 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. (See here).
In late September, the DOJ filed a petition in the Second Circuit requesting “that the Court swiftly issue a writ of mandamus directing [Judge Garaufis] to grant the government’s motion to dismiss the remaining counts of the indictment with prejudice.”
The petition presented the following issue: “Whether the district court exceeded its authority under the Constitution and Federal Rule of Criminal Procedure 48(a) by denying the government’s unopposed motion to dismiss with prejudice the indictment against five defendants.”
In summary fashion, the DOJ argued:
“This case was indicted in 2024, but no defendant has ever appeared. Exercising its power under Article II of the Constitution, the Executive Branch decided not to prosecute this case further and thus moved to dismiss the pending charges with prejudice under Federal Rule of Criminal Procedure 48(a), which requires only “leave of court.” The defendants consented to that relief.
Ordinarily, that would be the end of the matter. Given that the Executive’s prosecutorial power arises from the Constitution, only another provision of the Constitution could limit it—e.g., a defendant’s due process rights—but here all defendants readily consented, and thus there could be no countervailing constitutional interest. In such cases, courts lack discretion to force the government to proceed on charges it does not wish to pursue, nor can the courts demand that the government waive applicable privileges and disclose its confidential decisionmaking to justify dismissal.
Over a period of months, however, the district court in this case has repeatedly disregarded those limitations. At the outset, it refused to grant the Rule 48(a) motion unless the government provided detailed reasons the court deemed sufficient to justify dismissal. Although the government was under no obligation to provide this privileged information, it nonetheless did so: it explained, in a lengthy filing, that a senior Justice Department official—after consulting with colleagues across the Department—determined that the prosecution was not consistent with Department policy and presented factual, diplomatic, legal, and practical problems that warranted dismissal.
In a lengthy order, the district court agreed those were the actual, bona fide reasons for seeking dismissal—but then effectively appointed itself a super-prosecutor and proceeded to disagree with almost every single basis, even ones founded on prosecutorial discretion and concerns about international relations. The court ultimately, and very grudgingly, dismissed three charges—but refused to grant the Rule 48(a) motion as to five defendants and two counts, insisting that even more internal, confidential information was necessary. The court also peppered its order with unfounded attacks on the Department, which in truth had given extraordinary process to the determination to drop this case.
The government then repeatedly filed detailed explanations, including a sworn statement from the number-two-ranking official in the entire Department of Justice interpreting the Department’s own pre-existing prosecutorial priorities memorandum—yet the district court proceeded to reject those bases, too.
As a result, after months of efforts by the government, the district court ultimately issued an order denying the motion to dismiss the remaining charges. The district court went so far as to suggest that the government would have to provide “expert reports” to justify an unopposed motion dismissing these criminal charges. The government and the district court have profoundly different views on the nature of Rule 48 and the constitutional role of a district judge, leading to this impasse that can be resolved only by a higher court.
It appears that no appellate court has ever upheld a district court’s refusal to grant a Rule 48(a) motion. This Court should not be the first. As other circuits have ruled in similar circumstances, mandamus is necessary to remedy the district court’s dangerous and unconstitutional arrogation of executive power.”
Recently, Judge Garaufis responded and his amicus brief states:
“Mandamus is inappropriate where, as here, the District Court’s work is unfinished. The Government’s desire for hastier resolution and fewer questions does not warrant mandamus, particularly on an incomplete record replete with statements contradicted by the Indictment or other record evidence about which the District Court was obligated to inquire.”
In pertinent part, the brief states (various internal citations omitted):
“In its most recent Order, the District Court expressly encouraged further briefing on the remaining two counts. The Court explained that it was not questioning the Government’s authority to dismiss or the validity of its reasons, but rather was seeking clarification regarding the contradictions between the proffered reasons and the record, including the allegations in the Indictment. The District Court made clear that just one uncontradicted reason per count would suffice to justify dismissal. Thus, the Government has not established that it has “no other adequate means to attain the relief [it] desires.” “This requirement is generally unsatisfied where [] the district court has not yet foreclosed the relief sought in the petition.”
[…]
The Government objects to the District Court’s suggestion that one way to provide a reliable basis for dismissal of the FCPA count might be the provision of expert reports counsel had submitted to the Government addressing legal problems with the alleged bribery scheme. But this was a suggestion, not a mandate.
[…]
The Government has identified no prejudice from permitting the District Court to finish its work except that “five defendants remain in limbo.” No one is in custody; there is no record of any efforts made, at any point, to extradite any Defendant; and even if a Defendant had been arrested, the Supreme Court has held that the burdens of litigation, even for criminal defendants, are not a sufficient basis for the writ of mandamus. Not even four months elapsed from the Government’s filing of its initial motion for dismissal to the District Court’s September 3 order denying the motion without prejudice as to two counts and requesting further information. By contrast, 19 months elapsed between the issuance of the Indictment and the Government’s filing of the motion to dismiss.
[…]
The Executive can dismiss an indictment for almost any reason, but when it offers reasons that make no sense or are contradicted by the factual support the Government itself provides, the Court, before granting dismissal, has both the authority and the duty to request further information.
[…]
The Government cannot meet its burden of showing it has a clear and indisputable right to an order prohibiting the District Court from asking further questions in the Rule 48(a) context, at least not on this record, where the Government repeatedly volunteered facially implausible and contradictory reasons for dismissing the Indictment. The incongruity between the Government’s proffered rationales for dismissal of Counts One and Five and the record—largely facts alleged in the Indictment itself—necessitated the District Court to continue to probe whether “[w]hat was provided here was more of a distraction” than a legitimate explanation.
First, of course, there were the “general considerations” adduced by the Government, such as many of the actions and individuals being “foreign,” a fact that would apply in most FCPA cases and is not among the considerations detailed in the Blanche Memorandum.
The charge-specific reasons for dismissal of the two remaining counts were similarly concerning. For example, both on mandamus and before the District Court, the Government asserts that India has already investigated the allegations underlying the FCPA count, but the documents offered by the Government regarding investigations by India state that no investigation was done and that the allegations at issue were different from those in the Indictment. The Government did not need to provide proof of investigations in India, but it chose to do so, and that proof contradicted its own assertion. The District Court could not have ignored those contradictions. Similarly, while the Court did not ask the Government to explain whether the FCPA count was consistent with current prosecutorial priorities, the Government chose to do so, and its opinion—that the alleged $250 million bribery scheme, for example, is not sufficiently “egregious”—was mystifying.
[…]
On such a record, not only Rule 48(a), but the Court’s inherent supervisory authority—to ensure that the parties before it are not presenting misleading information—provides authority for further inquiry. A contrary ruling would invite parties to mislead courts.”
