Posted on 05/17/2020 7:27:02 AM PDT by street_lawyer
Talkshow Television Lawyers Got It Wrong By: Sharp Steelblade, Esq. The Bad News Journal is now reporting that Mark Levin, Judge Napolitano, and Judge Judy are dead wrong on th law. Either they have not read the Federal Rules of Criminal Procedure or are simply spinning the Flynn story for ratings. The sad fact is that General Flynn was railroaded. We don’t know what the attorney told Flynn prior to his guilty plea, but after reportedly paying six million in fees and costs one would think that there might have been a better outcome. But that is not what this report is about.
These television personalities who sound so authoritative would be laughed out of court. Whatever you think about Judge Sullivan, the rules of criminal procedure do not allow the prosecutor to drop the cases once the defendant has entered a plea. In order to properly deal with this issue we have to get into the weeds of federal criminal procedure.
(d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdraw a plea of guilty or nolo contendere:
(1) before the court accepts the plea, for any reason or no reason; or
(2) after the court accepts the plea, but before it imposes sentence if:
IF FLYNN WAS NOT SENTENCED THEN (2) APLIES SO THE CONDITIONS ARE (A) OR (B). CONDITION (A) DOES NOT APPLY SINCE THE JUDGE ACCEPTED THE PLEA SO CONDITION (B) APPLIES AND IT IS UP TO FLYNN TO SHOW A GOOD REASON. THE JUDGE SHOULD CONDUCT A HEARING AND HAS THE AUTHORITY TO DENY THE REQUEST. THEN FLYNN WOULD HAVE TO APPEAL THE DECISION.
(Excerpt) Read more at badnewsjournal.com ...
Actually it is this article or you if you are the author who has gotten it wrong. You are looking at the wrong Rule. What you cited from Rule 11 is for the defendant, in the FLynn case the government has moved to dismiss under a different rule, Rule 48. The standard of that rule is completely different, as the government motion explains. Under Rule 48 and its caselaw because the Government is moving wit prejudice, the judge has no basis to deny it. That is why everybody is freaking out and why the Judge’s actions are so unlawful.
This is my view. Its up to the judge at this point.
Flynn has a huge case for appeal, and he still has a huge cause for action against everyone involved, DOJ, FBI, Covington. By the time this is done he may be wealthier than he ever was.
But at this point, it has to work itself out in Sullivan’s court. In the end, Flynn will go free. The only question is, how much longer does he get jerked around.
OK, having just said what I said, I admit what you are explaining is beyond my understanding. I hope you are right and the article is wrong.
Under Rule 48 and its caselaw because the Government is moving wit prejudice, the judge has no basis to deny it. That is why everybody is freaking out and why the Judge’s actions are so unlawful.
+++++
Come on now. You can’t leave us hanging like that.
Explain Rule 48 and why it supersedes Rule 11.
Very important point since it is clear that the Plea Agreement is what is holding things up for Flynn.
I think the rule you are citing applies prior to the entry of a plea and it still requires the permission of the judge
Note to Subdivision (a). 1. The first sentence of this rule will change existing law. The common-law rule that the public prosecutor may enter a nolle prosequi in his discretion, without any action by the court, prevails in the Federal courts, Confiscation Cases, 7 Wall. 454, 457; United States v. Woody, 2 F.2d 262 (D.Mont.). This provision will permit the filing of a nolle prosequi only by leave of court. This is similar to the rule now prevailing in many States. A.L.I. Code of Criminal Procedure, Commentaries, pp. 895–897.
...The media has not reported that Flynn’s current attorney has file a motion to withdraw the plea, but that wold be the usually case. Flynn’s current pro bono attorney Sidney Powell has done a fantastic job. So I assume she has done what needs to be done.
Ms. Powell did file such a motion straight away.
I’d like to know if you think Sullivan will ultimately allow Flynn to withdraw his plea?
As you say Rule 11 is not the operative Rule here since this is a Rule 48 dismissal. Even more, people utterly mis-understand what is meant by judicial discretion. It doesn't mean the judge is free to exercise his caprice. Upon review of exercise of discretion, an appeals court looks at many factors:
And has been pointed out by Ginsberg last week, citing her previous opinion in Greenlaw [Scalia concurring] where the government chooses to prosecute the case is done. The judge has no discretion to continue a prosecution in the place of the government, to wit, the DOJ.
It’s definitely going to be interesting. I think Flynn will be fine and Trump will pardon him, but I also expect Sullivan to allow Flynn to withdraw his plea. According to Sydney Powell, Judge Sullivan has been a good judge. He can’t dismiss the case based on news reports, The DOJ has to file a brief and evidence of what the DOJ did, and maybe the DOJ doesn’t want to admit the wrongdoing? Just a thought?
One thing I am now realizing is why people plead “not guilty” even if they are clearly guilty as sin. Lesson learned.
Just a small correction. The recent SCOTUS cas was Fokker, I believe.
Ginisberg made clear that as the neutral party the judge cannot take an interest in or prosecuted case that the DOJ will not prosecute.
On May 7 2020 AJ Ginsburg writing for the court in a 9-0 decision in UNITED STATES v. SINENENG-SMITH reversing the 9th circus stated
Instead of adjudicating the case presented by the parties, however, the court named three amici and invited them to brief and argue issues framed by the panel, including a question never raised by Sineneng-Smith: Whether the statute is overbroad under the First Amendment. ....
The Nation’s adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “In both civil and criminal cases, . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243
Even more damning in this case is what Ginsburg wrote in the cited Greenlaw case where she said:
“[o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.” (Scalia, J., concurring in part and concurring in judgment). As cogently explained:
“[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties.Counsel almost always know a great deal more about their cases than we do, and this must be particularly true of counsel for the United States, the richest, most powerful, and best represented litigant to appear before us.
And Ginsburg continues in Greenlaw: This Court has recognized that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U. S. 683, 693 (1974)
So holdeth Ginsburg and her colleagues.
In this case, the United States has withdrawn from prosecution and sought to dismiss.
Judge Sullivan cannot continue a prosecution in place of the DOJ.
And the controlling case in the DC Circuit is Fokker In that case the DC COA held: "[T]he `leave of court' authority gives no power to a district court to deny a prosecutor's Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution's exercise of charging authority." United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016).
The case further held:
The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive's charging authority embraces decisions about whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences.
Typo. Thanks. Fokker was a DC Circuit case - which controls in the DC Circuit where Sullivan holds jurisdiction. See the post following yours where I cite the law on these.
InterceptPoint and The Man you make very interesting arguments. I may be wrong about when Rule 48 apples. If it only applies prior to entry of a plea then it is consistent with Rule 11
(d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdraw a plea of guilty or nolo contendere:
(1) before the court accepts the plea, for any reason or no reason;
What do you think?
Well... Flynn is under a gag order until the case is settled. So... I'd say it will be Mid NOVEMBER.
Gloryblaze coodos to you for that information. I figured she would have filed a motion because she is a superstar in my opinion AND she didn’t graduate from Harvard!
Andy I think Rule 48 does not applaud once the defendant enters a plea.
Rule 48. Dismissal
Primary tabs
(a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.
(b) By the Court. The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in:
(1) presenting a charge to a grand jury;
(2) filing an information against a defendant; or
(3) bringing a defendant to trial.
The Court may dismiss the indictment at any time it has jurisdiction.
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