Nope, nope, I'm setting my idea aside in favor of your far superior idea!
Posted on 05/19/2020 12:54:07 PM PDT by LoveMyFreedom
“Isn’t she awesome?!”
Yes, I have been watching her on Dobbs. She is a no nonsense, straight to the point professional. I would imagine the Prez is watching her as well.
Good grief.
She won the case. In court. The DOJ dropped the case as a result.
Her legal skills won it.
An immoral, horrifyngly biased Clinton judge has refused to accept the reality that there is no case, any one with half a brain can see that.
But I guess you’re sticking with CNN talking points.
What are you going to say when her appeals boot the judge?
Have at it. I’m sure you’ll find a leftist talking point somewhere......
Watching hopeful
I’m not sure Flynn has standing to file a writ of mandamus. I think in a criminal case only the government has standing.
These extraordinary remedies are very important and come from a long history of the common law. They are writs of :
1) Habeas corpus
2) Certiorari
3) Mandamus
4) Prohibition
If the Appeals Court is not rotten with Obama appointees, the application will be successful for General Flynn. The situation with Sullivan fits within all 4 corners of the
requirements for the issuance of a Writ of Mandamus.
But the left won’t stop. They are desperate to put Flynn away.The issuance of the Writ will likely be appealed to the Supreme Court.
The DOJ should already have done this.
Praying every day and night for orange jumpsuits on all the Deep State scum! Dear Lord, may they be charged, tried, convicted and fully punished in accordance with the law. Amen!
Amen!!
A beautiful prayer, just beautiful.
Remove from the case? How about remove from the bench.
“That lunatic “judge” should lose his robe and be disbarred.”
I was thinking I’d rather see the judge covered in raw liver and tossed into a tank of hungry sharks but we can try your idea first.
When will court of appeals decide?
Nope, nope, I'm setting my idea aside in favor of your far superior idea!
LOVE IT!!!!
nothing anyone does is good enough, or fast enough for some people here....Killjoys. ..
they must be such fun to live with. ha.
Powell is awesome!
nothing anyone does is good enough, or fast enough for some people here....Killjoys. ..whinners....girly men
they must be such fun to live with. ha.
Powell is awesome!
JURISDICTIONThis petition seeks an order directing the district court to grant the Justice Department’s Motion to Dismiss its criminal case against former National Security Advisor to President Trump, Lieutenant General Michael T. Flynn (Ret.) (“Motion to Dismiss”). ECF No. 198. The Government moved to dismiss the Information charging a violation of 18 U.S.C. §1001 after an internal review by United States Attorney Jeffrey Jensen unearthed stunning evidence of government misconduct and General Flynn’s innocence.
This Court has jurisdiction pursuant to the All Writs Act, which authorizes federal courts to issue writs “in the aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §1651(a). The district court’s failure to grant the Government’s Motion to Dismiss defies this Court’s binding precedent in United States v. Fokker Servs., B.V., 818 F.3d 733, 740 (D.C. Cir. 2016). The district court’s sua sponte appointment of an amicus to oppose the Government’s motion and its Minute Order to issue a schedule for additional amici are at loggerheads with the unanimous Supreme Court opinion in United States v. Sineneng-Smith, No. 19–67 (U.S. May 7, 2020).
The Petition is predicated on Sydney Powell/Flynn being correct, and Judge Sullivan being in error, in reading Fokker. The Flynn position is that the granting of the Motion to Dismiss is mandatory and not optional.
The Opinion of the Court in Fokker begins:
Opinion for the Court filed by Circuit Judge SRINIVASAN.SRINIVASAN, Circuit Judge: 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. The courts instead take the prosecution’s charging decisions largely as a given, and assume a more active role in administering adjudication of a defendant’s guilt and determining the appropriate sentence.
With that binding precedent, the D.C. Circuit Court in 2016 appears to have clearly said that primacy over dismissal of charges is an Executive decision, not to be second guessed by the Judiciary. The Opinion of the Court continued with the next paragraph:
In certain situations, rather than choose between the opposing poles of pursuing a criminal conviction or forgoing any criminal charges altogether, the Executive may conclude that the public interest warrants the intermediate option of a deferred prosecution agreement (DPA). Under a DPA, the government formally initiates prosecution but agrees to dismiss all charges if the defendant abides by negotiated conditions over a prescribed period of time. Adherence to the conditions enables the defendant to demonstrate compliance with the law. If the defendant fails to satisfy the conditions, the government can then pursue the charges based on facts admitted in the agreement.
Reading the second paragraph, Judge Sullivan appears to believe that the whole opinion has to do with a Deferred Prosecution Agreement (DPA) and does not apply to Flynn.
However, Fokker at page 10 also quoted approvingly from the D.C. Circuit in 1967:
Indeed, “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.” Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967).
Flynn's claimed jurisdiction is under the All Writs Act, 28 U.S.C. § 1651(a).
28 U.S.C. § 1651 (2018)
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.
(June 25, 1948, ch. 646, 62 Stat. 944; May 24, 1949, ch. 139, §90, 63 Stat. 102.)
Except that it is the governments motion that the judge is not granting. That is why I said I don’t think Flynn has standing. I believe only the government can ask that a judge be required to grant its motion to dismiss a charge.
All DOJ needs to do it file a petition. No big deal. They need to do it.
Except that it is the governments motion that the judge is not granting. That is why I said I don’t think Flynn has standing. I believe only the government can ask that a judge be required to grant its motion to dismiss a charge.
Flynn is challenging the action of the Court upon the motion to dismiss the information. Flynn is very much affected by the action or inaction of the Court and has standing to request an order from the Court of Appeals to require the District Court to comply with the law and rules of the circuit.
standing. (1924) A party's right to make a legal claim or seek judicial enforcement of a duty or right. • To have standing in federal court, a plaintiff must show (1) that the challenged conduct has caused the plaintiff actual injury, and (2) that the interest sought to be protected is within the zone of interests meant to be regulated by the statutory or constitutional guarantees in question.
Black's Law Dictionary, 11th Ed.
Ellis is a very, very long opinion. In Ellis, the defendant moved for a writ of mandamus. The Court overruled the Government decision to drop the initial charge of 1st degree murder and proceed on the lesser offense of 2nd degree murder, over the objections of the Government, because the judge found the lesser offense too lenient. The defendant moved for a writ of mandamus to overrule the District Court and to have the case assigned to a different judge on remand. The petition for writ of mandamus was granted.
In re Ellis, 356 F3d 1198 (9th Cir, 2004)
Excerpt
The government originally charged Ellis with first degree murder and moved to have him tried as an adult due to his prior state court conviction for residential burglary. See United States v. M.C.E., 232 F.3d 1252, 1257 (9th Cir. 2000) (holding that Ellis's transfer to adult status was mandatory).[...]
C. Separation of powers.
While the district court did not violate Rule 11's proscription against participating in plea negotiations, it effectively and improperly inserted itself into the charging decision by vacating Ellis's plea and reinstating the first degree murder indictment. The procedures contemplated by Rule 11 guard against an intrusion of this nature into the separate powers of the executive branch. See United States v. Miller, 722 F.2d 562, 565 (9th Cir. 1983). As we explained in Miller:
When a prosecutor selects a charge, he has made an executive choice. When a judge sentences a defendant, he has made a judicial choice. When a plea bargain is placed before a court, the necessary interplay between charging and sentencing decisions becomes manifest.
Id. at 564. The plea agreement placed before the district court here specified both a reduced charge and the sentence, thus implicating both judicial and executive decisionmaking.
The district court viewed the sentence resulting from Ellis's plea bargain as not in the best interest of society, given Ellis's criminal history and the circumstances of the offense charged. This was a judgment properly within the judicial function. It is also a function protected by Rule 11's provision for the rejection of a negotiated plea agreement when the court believes a sentence is too lenient or otherwise not in the public interest. Id. at 563. But when the district court made the further decision that the second degree murder charge itself was too lenient, it intruded into the charging decision, a function "generally within the prosecutor's exclusive domain." Id. at 565. Because the prosecutor represents the executive branch, the district court's reinstatement of the first degree murder charge over the government's objection disregarded the traditional requirement of separation of powers — that the "judiciary remain independent of executive affairs." Id. The district court's decision forced the government to prepare to try Ellis on a charge it did not want to bring, on evidence it considered problematic, and in a procedural posture questionable due to Ellis's prior juvenile status and transfer proceedings.
Rule 48 also recognizes the traditional balance between judicial and executive power by limiting the district court's supervisory powers over prosecutorial charging decisions. Under Rule 48, courts must grant leave to the government to dismiss an indictment, information, or complaint unless dismissal is "clearly contrary to manifest public interest." Rinaldi v. United States, 434 U.S. 22, 30, 98 S. Ct. 81, 54 L. Ed. 2d 207 (1977) (per curiam); United States v. Garcia-Valenzuela, 232 F.3d 1003, 1008 (9th Cir. 2000) (discussing the "clearly contrary to manifest public interest" standard). "The decision to dismiss an indictment implicates concerns that the Executive is uniquely suited to evaluate, and a district court should be reluctant to deny its request." United States v. Gonzalez, 58 F.3d 459, 462 (9th Cir. 1995).
In Miller, we noted that " [m]any of the policies underlying Rule 48 are equally applicable to judicial consideration of charge bargains." 722 F.2d at 566. " [C]ourts should be wary of second-guessing prosecutorial choices" because " [c]ourts do not know which charges are best initiated at which time, which allocation of prosecutorial resources is most efficient, or the relative strengths of various cases and charges." Id. at 565; see also United States v. Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973) ("In ordinary circumstances, the change in grading of an offense presents no question of the kind of action that is reserved for the judiciary."). By requiring the reinstatement of the first degree murder charge, the district court overstepped its judicial bounds.
III. Mandamus.
Mandamus is the appropriate remedy. The district court clearly erred in vacating Ellis's plea. Substantial prejudice would result to him, the government, and the judicial system by requiring all to proceed through trial on first degree murder charges before the district court's error could be remedied on direct appeal. We have authority to issue writs of mandamus under the All Writs Act, 28 U.S.C. § 1651, which provides that " [t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."
The writ of mandamus is "an extraordinary remedy that may be obtained only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Cordoza v. Pac. States Steel Corp., 320 F.3d 989, 998 (9th Cir. 2003); see also Bauman v. United States Dist. Court, 557 F.2d 650, 654-55 (9th Cir. 1977) (identifying five factors for exercise of discretion to grant mandamus). Three of the five Bauman factors — lack of alternative adequate means of redress, prejudice uncorrectable on appeal, and a clearly erroneous district court order — are present here, and weigh heavily in favor of granting the petition. See Cordoza, 320 F.3d at 998 ("We address the [clear error] factor first, because the others are irrelevant if the district court's conclusions were legally correct."); Credit Suisse v. United States Dist. Court, 130 F.3d 1342, 1345-46 (9th Cir. 1997) (granting writ because district court's decision was not "immediately reviewable," was prejudicial in a manner not correctable on appeal, and constituted clear error); In re Cement Antitrust Litig., 688 F.2d 1297, 1301 (9th Cir. 1982) (noting that first two Bauman factors, lack of adequate means of redress and uncorrectable prejudice, "are designed to insure that mandamus, rather than some other form of relief, is the appropriate remedy").
The uncorrectable prejudice arising from the district court's refusal to proceed on the second degree murder charge is evident from a consideration of the possible outcome of a trial on the first degree charge, were we to deny mandamus relief. If the jury acquitted the defendant, a result the government has determined is reasonably possible, Ellis would go free because he would not, under the district court's ruling, have pleaded guilty to the second degree charge, and could not be tried on that charge. See, e.g., Brown v. Ohio, 432 U.S. 161, 169, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977) (" [T]he Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense."). Had the jury, instead, returned a verdict of guilt on the first degree charge, Ellis would have irreparably suffered the prejudice of the additional, and unnecessary, financial and emotional burden of having to stand trial. See Arizona v. Washington, 434 U.S. 497, 503-05, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978).
IV. Remand.
Ellis has requested that the case be assigned to a different judge on remand. We make two inquiries when deciding whether to reassign a case. "First, we ask whether the district court has exhibited personal bias requiring recusal from a case." United Nat'l Ins. Co. v. R & D Latex Corp., 242 F.3d 1102, 1118 (9th Cir. 2001) (citing United States v. Sears, Roebuck & Co., 785 F.2d 777, 779-80 (9th Cir. 1986)). Nothing in the record reflects such personal bias.
Second, in the absence of a showing of personal bias, we look to whether "unusual circumstances" warrant reassignment. Id. (citing Sears, Roebuck, 785 F.2d at 780). This inquiry focuses on three factors: "(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness." Id. at 1118-19. Only one of the first two factors must be present to support reassignment. See United States v. Mikaelian, 168 F.3d 380, 388 (9th Cir. 1999).
The district judge has read the presentence report and has expressed strong views on its contents. Whether or not he would reasonably be expected to put out of his mind the information previously disclosed or the conclusions previously drawn, and without ourselves reaching any determination as to his ability to proceed impartially, to preserve the appearance of justice, and consistent with the purposes of Rule 32, we conclude reassignment is appropriate. See Gregg v. United States, 394 U.S. 489, 492, 89 S. Ct. 1134, 22 L. Ed. 2d 442 (1969) (noting that to allow submission of a presentence report "to the judge who will ... preside over a jury trial would seriously contravene ... [Rule 32's] purpose of preventing possible prejudice from premature submission of the presentence report"). Given the preliminary nature of the plea proceedings, the minimal potential for waste or duplication of judicial resources is outweighed by the need to proceed in a manner that preserves the appearance of justice. Therefore, on remand, the case shall be reassigned to a different district judge within the Western District of Washington.
V. Conclusion.
We GRANT the petition for mandamus and REMAND to the Chief Judge of the Western District of Washington for further proceedings consistent with this opinion.
Well done. We will see what happens.
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