DC CircuitDeferred-prosecution agreements (DPAs) pose thorny questions from an overcriminalization perspective.  But DPA skeptics should welcome—at least for now—a decision issued last Tuesday by the U.S. Court of Appeals for the DC Circuit.  In a case entitled United States v. Fokker Services B.V., the DC Circuit held that federal district courts may not second-guess the charging decisions of prosecutors under the guise of performing their Speedy Trial Act (STA) duties.

After investigating the defendant company’s self-reporting of potential export control law and federal sanction violations with respect to Iran, Sudan, and Burma, the Department of Justice negotiated an 18-month deferred-prosecution agreement with Fokker.  To implement such a DPA the prosecutor formally initiates criminal charges against the defendant based on facts conceded in the agreement.  If the defendant meets the preconditions mapped out in the DPA (which generally involve complying with the law and keeping its nose clean), the prosecutor will then dismiss those charges at the conclusion of the deferral period.  If, on the other hand, the defendant fails to meet the preconditions at some point along the way, the prosecutor will proceed with its criminal case.

The courts are largely passive observers to this whole process because the decision to charge or not to charge a defendant is traditionally left up to the Executive Branch’s exclusive discretion.  This arrangement flows from the US Constitution’s separation of powers because, if the same branch that adjudicates the case were also to decide on the charges to be brought, the defendant would be far less likely to receive a fair hearing.

To make this arrangement work, however, the defendant’s constitutional right to a speedy trial also must be respected.  Hence, the Speedy Trial Act assigns the federal district court the ability (with the defendant’s consent) to suspend the applicable time limit for the duration of the DPA.  The court’s involvement at this juncture ensures that a defendant has voluntarily surrendered its speedy-trial right and has not been coerced into surrendering its Sixth Amendment rights.  Judicial oversight thus prevents DPAs from becoming “a pretext intended merely to evade the Speedy Trial Act’s time constraints.”  Slip op. at 17.

In this case the government filed its criminal charge (one count of conspiracy to violate the International Emergency Economic Powers Act) against Fokker alongside a joint motion to suspend the STA’s time limit.  That’s when things got interesting.  According to the DC Circuit’s decision, authored by erstwhile Obama Supreme Court short-lister Sri Srinivasan and joined by senior circuit judges Silberman and Sentelle:

The district court denied the motion because, in the court’s view, the prosecution had been too lenient in agreeing to, and structuring, the DPA.  Among other objections, the court disagreed with prosecutors’ decision to forgo bringing any criminal charges against individual company officers. Slip op. at 3.  This denial, the circuit panel held, was not allowed.  The appellate court vacated the district court’s denial of the joint motion, granted the government’s petition for a writ of mandamus, and remanded the case back to the district court for further proceedings.

The appeals court noted that it was not passing judgment on whether the lower court was right about the charging decisions made in the case; it was simply noting that such decisions are entrusted to the Executive Branch where they must remain.

Congress … acted against the backdrop of long-settled understandings about the independence of the Executive with regard to charging decisions.  Nothing in the [Speedy Trial Act]’s terms or structure suggests any intention
to subvert those constitutionally rooted principles …

Slip op. at 4.  Hence, “the statute’s ‘approval of the court’ requirement did not empower the district court to disapprove the DPA based on the court’s view that the prosecution had been too lenient.”  Slip op. at 10.

This case marks the first time any district court has denied a joint request under the STA to suspend statutory time limits to facilitate a DPA.  See slip op. at 9.  Despite the recent dramatic uptick in the use of DPAs and non-prosecution agreements by the Department of Justice (on average 32 times per year from 2009-2013), district judges have been approving them routinely.

Although the reasons given by the DC Circuit for reversing the district court’s decision this time seem sound, a note of caution is in order.  Here, concern that the DPA’s terms were too lenient apparently motivated the district judge.  But suppose instead that a district judge were presented with a DPA whose terms appeared too harsh; indeed, suppose the terms were harsher than the sentence that the court itself would be able to hand down in the event of a conviction.  Would the Fokker court’s logic still appear correct?

One could imagine a business accepting lopsided DPA terms that would micromanage the defendant business merely to avoid the company-crushing repercussions of a criminal conviction (such as debarment from government contracts).  One could even imagine an individual confronted with the possible deprivation of personal liberty agreeing to a range of preconditions in a DPA that could never be obtained from a court of law.

After all, when the government has one over the proverbial barrel, there is not much one would not agree to if it meant avoiding jail.  Fortunately, to date the Department of Justice has eschewed DPAs for individuals.  So long as that remains the case, the concern stated here may remain hypothetical.  On the other hand, the Securities and Exchange Commission has seen fit lately to enter into DPAs with individuals, so it may just be a matter of time before another district judge faces this quandary.

If the Fokker decision means a future federal district court facing an unjustly harsh DPA may not decline a Speedy Trial Act delay request, what should the court do?  While it’s true that charging decisions are the realm of the Executive Branch, sentencing decisions are the realm of the Judicial Branch.  If DPAs effectively craft sentences that are harsher than the judiciary could mete out, is there really no recourse for a federal district court judge but to acquiesce?  Here’s hoping the Fokker decision has not precluded future federal district courts from making sure that justice is done, even when a DPA has rendered the bulwark of a jury trial unavailable.

Also published by Forbes.com on WLF’s contributor page.