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.
It's done.
Well done Sir.Thank you
You may infer in #114 that denying the DOJ motion to dismiss is not the aim, rather DELAY is the strategy.
General Flynn has a Gag Order on him. He is unable to declare or testify what he knows about the criminal actions of Obama and his circle.
Therefore, the Obama Axis seeks to delay any case dismissal that lifts the Gag Order.
Accepting, reviewing, compiling, weighing thousands of amici can take months.
How long can Sullivan hide under cover of “he’s too busy”?
Can he leave a Gag Order in place even if prosecutors have dropped charges? This happened in another similar court setting with Dr. Judy Mikovits where she blew the whistle on the Rodent named Fauci and his fellow rats.
This case is over. As Sol Weisenberg stated on Fox tonight, the Fokker case controls in the DC Circuit.
It may not yet be entirely over, but it appears Flynn (or Sydney Powell) will prevail. Judge Sullivan could go ahead with his fellow judge, the Circuit court would likely come down on his head on appeal with a stay and reversal.
Judge Sullivan is in a tight spot. He should haul the prosecutors in and subject them to a misconduct hearing regarding repeated and blatant discovery violations, among other things. However, it is not easy to do that without it being very obvious that lawless crap that he permitted in his court for years. This case did not just explode on the prosecutors, it has also exploded on the Court. The fallout will just keep on coming and be in the news at least through the election. What is the Court's defense? It wasn't corrupt, it was incompetent?
What Judge Sullivan appears to desperately want is for Trump to issue a pardon and just make the case go away. I would rate the chances of that between slim and none, with none in the lead.
There is not much wiggle room. While true that Fokker largely pertains to a Deferred Prosecution Agreement (DPA), the Court's comments are broader.
The government motion states,
The United States of America hereby moves to dismiss with prejudice the criminal information filed against Michael T. Flynn pursuant to Federal Rule of Criminal Procedure 48(a).
Provided only to make clear that it was, indeed, a Rule 48(a) motion.
The relevant portion of United States v. Fokker (9th Cir, 5 Apr 2016) at pp. 10-12:
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 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. 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.
A week ago, in United States v. Sineneng, S. Ct 19-67 (7 May 2020), Opinion by The Notorious RBG, the U.S. Supreme Court slapped down the 9th Circuit for a similar example of overreach. I provide below the Syllabus which is the case summary. The full opinion is at the link to SCOTUS.
SyllabusUNITED STATES v. SINENENG-SMITH
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 19–67. Argued February 25, 2020—Decided May 7, 2020
Respondent Evelyn Sineneng-Smith operated an immigration consulting firm in San Jose, California. She assisted clients working without authorization in the United States to file applications for a labor certification program that once provided a path for aliens to adjust to lawfulpermanent resident status. Sineneng-Smith knew that her clients could not meet the long-passed statutory application-filing deadline,but she nonetheless charged each client over $6,000, netting more than $3.3 million.
Sineneng-Smith was indicted for multiple violations of 8 U. S. C. §1324(a)(1)(A)(iv) and (B)(i). Those provisions make it a federal felony to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law,” §1324(a)(1)(A)(iv), and impose an enhanced penalty if the crime is “done for the purpose of commercial advantage or private financial gain,” §1324(a)(1)(B)(i). In the District Court, she urged that the provisions did not cover her conduct, and if they did, they violated the Petition and Free Speech Clauses of the First Amendment as applied.The District Court rejected her arguments and she was convicted, as relevant here, on two counts under §1324(a)(1)(A)(iv) and (B)(i).
Sineneng-Smith essentially repeated the same arguments on appeal to the Ninth Circuit. Again she asserted a right under the First Amendment to file administrative applications on her clients’ behalf, and she argued that the statute could not constitutionally be applied to her conduct. 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. In accord with the amici’s arguments, the Ninth Circuit held that §1324(a)(1)(A)(iv) is unconstitutionally overbroad.
Held: The Ninth Circuit panel’s drastic departure from the principle of party presentation constituted an abuse of discretion.
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.
That principle forecloses the controlling role the Ninth Circuit took on in this case. No extraordinary circumstances justified the panel’s takeover of the appeal. Sineneng-Smith, represented by competent counsel, had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including abstract advocacy and legal advice. It did so even though Sineneng-Smith’s counsel had presented a contrary theory of the case in her briefs and before the District Court. A court is not hidebound by counsel’s precise arguments, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale. On remand, the case is to be reconsidered shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties. Pp. 3–9.
910 F. 3d 461, vacated and remanded.
GINSBURG, J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion.