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The Return Of Fokker


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.

The decision was authored by Judge Neomi Rao (appointed by President Trump) and joined by Judge Karen Henderson (appointed by President George H.W. Bush). Judge Robert Wilkins (appointed by President Obama) dissented.

In pertinent part, the court held that Rule 48 of the Federal Rules of Criminal Procedure give “no power to a district court to deny a prosecutor’s … motion to dismiss charges based on a disagreement with the prosecution’s exercise of charging authority” [citing Fokker Services] and that “decisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion” [citing Fokker Services].

According to the court, “these clearly established legal principles and the Executive’s “long-settled primacy over charging decisions foreclose the district court’s proposed scrutiny of the government’s motion to dismiss the Flynn prosecution” [citing Fokker Services].

The court noted that “in this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority.”

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