United States v. Sineneng-Smith, U.S. Supreme Court 19-67 (May 7, 2020); Opinion by Ginsburg, J.
Counsel for the parties were permitted, but “not required,” to file supplemental briefs “limited to responding to any and all amicus/amici briefs.” Id., at 123 (emphasis added). Invited amici and amici not specifically invited to file were free to “brief such further issues as they, respectively, believe the law, and the record calls for.” Ibid. The panel gave invited amici 20 minutes for argument, and allocated only 10 minutes to Sineneng-Smith’s counsel. Reargument Order in No. 15–10614 (CA9), Doc. No. 92. Of the three specified areas of inquiry, the panel reached only the first, holding that §1324(a)(1)(A)(iv) was facially overbroad under the First Amendment, 910 F. 3d, at 483–485, and was not susceptible to a permissible limiting construction, id., at 472, 479.True, in the redone appeal, Sineneng-Smith’s counsel adopted without elaboration counsel for amici’s over-breadth arguments. See Supplemental Brief for Appellant in No. 15–10614 (CA9), p. 1. How could she do otherwise? Understandably, she rode with an argument suggested bythe panel. In the panel’s adjudication, her own arguments,differently directed, fell by the wayside, for they did not mesh with the panel’s overbreadth theory of the case.
II
No extraordinary circumstances justified the panel’s takeover of the appeal. Sineneng-Smith herself had raiseda vagueness argument and First Amendment arguments homing in on her own conduct, not that of others. Electingnot to address the party-presented controversy, the panel projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including political advocacy, legal advice, even a grandmother’s plea to her alien grandchild to remain in the United States. 910 F. 3d, at 483–484.6 Nevermind that Sineneng-Smith’s counsel had presented a contrary theory of the case in the District Court, and that this Court has repeatedly warned that “invalidation for [First Amendment] overbreadth is ‘strong medicine’ that is not tobe ‘casually employed.’” United States v. Williams, 553 U. S. 285, 293 (2008) (quoting Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32, 39 (1999)).
As earlier observed, see supra, at 4, a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.
United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir, April 5, 2016)
A.The Executive’s primacy in criminal charging decisions is long settled. That authority stems from the Constitution’s delegation of “take Care” duties, U.S. Const. art. II, § 3, and the pardon power, id. § 2, to the Executive Branch. See United States v. Armstrong, 517 U.S. 456, 464 (1996); In re Aiken Cnty., 725 F.3d 255, 262-63 (D.C. Cir. 2013). Decisions to initiate charges, or to dismiss charges once brought, “lie[] at the core of the Executive’s duty to see to the faithful execution of the laws.” Cmty. for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986). The Supreme Court thus has repeatedly emphasized that “[w]hether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.” United States v. Batchelder, 442 U.S. 114, 124 (1979); see Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
Correspondingly, “judicial authority is . . . at its most limited” when reviewing the Executive’s exercise of discretion over charging determinations. Pierce, 786 F.2d at 1201; see ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 283 (1987). The decision whether to prosecute turns on factors such as “the strength of the case, the prosecution’s general deterrence value, the [g]overnment’s enforcement priorities, and the case’s relationship to the [g]overnment’s overall enforcement plan.” Wayte v. United States, 470 U.S. 598, 607 (1985). The Executive routinely undertakes those assessments and is well equipped to do so. By contrast, the
11
Judiciary, as the Supreme Court has explained, generally is not “competent to undertake” that sort of inquiry. Id. 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). “Judicial supervision in this area” would also “entail[] systemic costs.” Wayte, 470 U.S. at 608. It could “chill law enforcement,” cause delay, and “impair the performance of a core executive constitutional function.” Armstrong, 517 U.S. at 465 (quotation omitted). As a result, “the presumption of regularity” applies to “prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.” Id. at 464 (internal quotation marks, quotation, and alterations omitted).
B.
Those settled principles counsel against interpreting statutes and rules in a manner that would impinge on the Executive’s constitutionally rooted primacy over criminal charging decisions. Of particular salience, Rule 48(a) of the Federal Rules of Criminal Procedure requires a prosecutor to obtain “leave of court” before dismissing charges against a criminal defendant. Fed. R. Crim. P. 48(a). That language could conceivably be read to allow for considerable judicial involvement in the determination to dismiss criminal charges. But 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. See e.g., Newman, 382 F.2d at 480. To that end, the Supreme Court has declined to construe Rule 48(a)’s “leave of court” requirement to confer any substantial role for courts in the determination whether to dismiss charges.
12
Rather, the “principal object of the ‘leave of court’ requirement” has been understood to be a narrow one—“to protect a defendant against prosecutorial harassment . . . when the [g]overnment moves to dismiss an indictment over the defendant’s objection.” Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977). A court thus reviews the prosecution’s motion under Rule 48(a) primarily to guard against the prospect that dismissal is part of a scheme of “prosecutorial harassment” of the defendant through repeated efforts to bring—and then dismiss—charges. Id.
So understood, the “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. For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution’s desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendant’s alleged conduct. See In re United States, 345 F.3d 450, 453 (7th Cir. 2003). The authority to make such determinations remains with the Executive.
It is true that Rule 48(a) of the Federal Rules of Criminal Procedure requires leave of court for the government to dismiss an indictment, information, or complaint—or, we add, a single count of such a charging document. United States v. Delagarza, 650 F.2d 1166, 1167 (10th Cir. 1981) (per curiam); 3A Charles Alan Wright, Federal Practice and Procedure § 811 (2d ed.1982). But the purpose, at least the principal purpose, is to protect a defendant from the government's harassing him by repeatedly filing charges and then dismissing them before they are adjudicated. Rinaldi v. United States, 434 U.S. 22, 29 n. 15, 98 S. Ct. 81, 54 L. Ed. 2d 207 (1977) (per curiam); In re Richards, supra, 213 F.3d at 787; United States v. Palomares, 119 F.3d 556, 558 (7th Cir. 1997); United States v. Gonzalez, 58 F.3d 459, 461 (9th Cir. 1995); United States v. Hamm, 659 F.2d 624, 628 (5th Cir. Oct. 1981) (en banc). In such a case the judge might rightly condition dismissal on its being with prejudice. United States v. Derr, 726 F.2d 617, 619 (10th Cir. 1984); United States v. Towill, 548 F.2d 1363, 1369-70 (9th Cir. 1977). There is no issue of that sort here. The government wants to dismiss the civil rights count with prejudice, and that is what Bitsky wants as well. The district judge simply disagrees with the Justice Department's exercise of prosecutorial discretion. As he explained in his response to the petition for mandamus, he thinks the government has exaggerated the risk of losing at trial: "the evidence was strong and conviction extremely likely." The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person. We add that this is not a case (not that it would make a difference to our analysis) in which a federal prosecutor is operating without supervision. The filing of a petition for mandamus on behalf of the federal government requires authorization by the Solicitor General of the United States.We are mindful of speculations in some judicial opinions that a district judge could properly deny a motion to dismiss a criminal charge even though the defendant had agreed to it. These opinions say that such a motion should be denied if it is in bad faith or contrary to the public interest, as where "the prosecutor appears motivated by bribery, animus towards the victim, or a desire to attend a social event rather than trial." In re Richards, supra, 213 F.3d at 787. The "bad faith or contrary to the public interest" formula is also found, though not necessarily in those words, in Rinaldi v. United States, 434 U.S. 22, 30, 98 S. Ct. 81, 54 L. Ed. 2d 207 (1977) (per curiam); United States v. Martin, supra, 287 F.3d at 623; United States v. Jacobo-Zavala, supra, 241 F.3d at 1012-13; United States v. Garcia-Valenzuela, supra, 232 F.3d at 1007-08; United States v. Palomares, supra, 119 F.3d at 558; United States v. Smith, supra, 55 F.3d at 158-59; United States v. Hamm, supra, 659 F.2d at 630; United States v. Cowan, 524 F.2d 504 (5th Cir. 1975), and United States v. Ammidown, 497 F.2d 615, 620 (D.C. Cir. 1973). We are unaware, however, of any appellate decision that actually upholds a denial of a motion to dismiss a charge on such a basis. That is not surprising. The Constitution's "take Care" clause (art. II, § 3) places the power to prosecute in the executive branch, just as Article I places the power to legislate in Congress. A judge could not properly refuse to enforce a statute because he thought the legislators were acting in bad faith or that the statute disserved the public interest; it is hard to see, therefore, how he could properly refuse to dismiss a prosecution merely because he was convinced that the prosecutor was acting in bad faith or contrary to the public interest.
The Constitution does place judicially enforceable limits on the powers of the nonjudicial branches of the government—for example, the government may not make its prosecutorial decisions on racially discriminatory grounds—but they are the limits found in the Constitution and thus do not include "bad faith" and "against the public interest." Custom, limited prosecutorial resources that compel prioritizing prosecutions, federal criminal statutes that overlap with each other and with state criminal statutes, plea bargaining, and the federal sentencing guidelines themselves combine to lodge enormous charging discretion in the Justice Department, to the occasional frustration of judges—yet without giving rise to any judicial remedy. See, e.g., United States v. Batchelder, 442 U.S. 114, 123-24, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979); The Confiscation Cases, 74 U.S. (7 Wall.) 454, 457, 19 L. Ed. 196 (1868).
Paradoxically, the plenary prosecutorial power of the executive branch safeguards liberty, for, in conjunction with the plenary legislative power of Congress, it assures that no one can be convicted of a crime without the concurrence of all three branches (again, criminal contempt of judicial orders constitutes a limited exception). When a judge assumes the power to prosecute, the number shrinks to two.
Even if a federal judge could properly deny, on the basis of bad faith or contravention of the public interest, a motion to dismiss a criminal charge, it would not follow that he could appoint a prosecutor. Presumably an assistant U.S. attorney who accepts a bribe, wants to go on vacation rather than conduct a trial, etc., is acting alone rather than at the direction or with the approval of the Justice Department, and a different assistant U.S. attorney would continue with the prosecution. In any event, a judge could not possibly win a confrontation with the executive branch over its refusal to prosecute, since the President has plenary power to pardon a federal offender, U.S. Const. art. II, § 2, cl. 1—even before trial or conviction. Ex parte Garland, 71 U.S. (4 Wall.) 333, 380, 18 L. Ed. 366 (1866).