United States v. Fokker Servs. B.V.

818 F.3d 733

UNITED STATES of America, Appellee

v.FOKKER SERVICES B.V., Appellant.

Nos. 15–3016

15–3017.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 11, 2015.

Decided April 5, 2016.

Edward C. O'Callaghan argued the cause for appellant. With him on the briefs was David D. DiBari.

Aditya Bamzai, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the briefs were Vincent H. Cohen, Jr., Acting U.S. Attorney, Mary B. McCord, Principal Deputy Assistant Attorney General, U.S. Department of Justice, Steven M. Dunne, Chief, Appellate Unit, and Elizabeth Trosman and Elizabeth H. Danello, Assistant U.S. Attorneys.

Adam G. Unikowsky argued the cause for court-appointed amicus curiae. With him on the brief was David W. DeBruin, appointed by the court.

Before: SRINIVASAN, Circuit Judge, and SILBERMAN and SENTELLE, Senior Circuit Judges.

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.

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.

This case arises from the interplay between the operation of a DPA and the running of time limitations under the Speedy Trial Act. Because a DPA involves the formal initiation of criminal charges, the agreement triggers the Speedy Trial Act's time limits for the commencement of a criminal trial. In order to enable the government to assess the defendant's satisfaction of the DPA's conditions over the time period of the agreement—with an eye towards potential dismissal of the charges—the Speedy Trial Act specifically allows for a court to suspend the running of the time within which to commence a trial for any period during which the government defers prosecution under a DPA.

In this case, appellant Fokker Services voluntarily disclosed its potential violation of federal sanctions and export control laws. After extensive negotiations, the company and the government entered into an 18–month DPA, during which Fokker would continue cooperation with federal authorities and implementation of a substantial compliance program. In accordance with the DPA, the government filed criminal charges against the company, together with a joint motion to suspend the running of time under the Speedy Trial Act pending assessment of the company's adherence to the agreement's conditions. 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.

We vacate the district court's denial of the joint motion to exclude time under the Speedy Trial Act. We hold that the Act confers no authority in a court to withhold exclusion of time pursuant to a DPA based on concerns that the government should bring different charges or should charge different defendants. Congress, in providing for courts to approve the exclusion of time pursuant to a DPA, acted against the backdrop of long-settled understandings about the independence of the Executive with regard to charging decisions. Nothing in the statute's terms or structure suggests any intention to subvert those constitutionally rooted principles so as to enable the Judiciary to second-guess the Executive's exercise of discretion over the initiation and dismissal of criminal charges.

In vacating the district court order, we have no occasion to disagree (or agree) with that court's concerns about the government's charging decisions in this case. Rather, the fundamental point is that those determinations are for the Executive—not the courts—to make. We therefore grant the government's petition for a writ of mandamus and remand for further proceedings consistent with this opinion.

I.

A.

The Speedy Trial Act establishes time limits for the completion of various stages of a criminal prosecution. See 18 U.S.C. §§ 3161 –3174. For instance, the Act requires the commencement of trial within seventy days of the filing of an information or indictment by the government. Id. § 3161(c)(1). The Act also excludes various pretrial periods from the running of that seventy-day time clock. Of particular relevance, the Act excludes "[a]ny period of delay during which prosecution is deferred by the attorney for the Government pursuant to written agreement with the defendant, with the approval of the court, for the purpose of allowing the defendant to demonstrate his good conduct." Id. § 3161(h)(2).

That exemption exists to enable prosecutors to resolve cases through DPAs. DPAs, along with their out-of-court analogues, non-prosecution agreements (NPAs), afford a middle-ground option to the prosecution when, for example, it believes that a criminal conviction may be difficult to obtain or may result in unwanted collateral consequences for a defendant or third parties, but also believes that the defendant should not evade accountability altogether. Both DPAs and NPAs generally include an admitted statement of facts, require adherence to "conditions designed ... to promote compliance with applicable law and to prevent recidivism," and remain in effect for a period of one to three years. U.S. Attorney's Manual § 9–28.1000 (2015). During that period, if the defendant fails to abide by the terms of the agreement, the government can prosecute based on the admitted facts. While prosecutors at one time seldom relied on NPAs and DPAs, their use has grown significantly in recent years.

DPAs differ from NPAs primarily with regard to the filing of criminal charges. With an NPA, "formal charges are not filed and the agreement is maintained by the parties rather than being filed with a court." Craig S. Morford, Selection and Use of Monitors in Deferred Prosecution Agreements and Non–Prosecution Agreements with Corporations, at 1 n. 2 (Mar. 7, 2008). A DPA, by contrast, "is typically predicated upon the filing of a formal charging document by the government." Id.

For that reason, a DPA's viability depends on the specific exclusion of time for such agreements set forth in the Speedy Trial Act, 18 U.S.C. § 3161(h)(2). The filing of an information or indictment would ordinarily trigger the Act's seventy-day clock within which trial must commence. See id. § 3161(c)(1). But in the case of a DPA, if the defendant were to fulfill the agreement's conditions, the prosecution would move to dismiss all charges with prejudice at the end of the specified time period, ordinarily one to three years. Without the statutory exclusion of time for DPAs provided in § 3161(h)(2), the government would relinquish its ability to prosecute based on the conceded facts if the defendant were to violate the agreement after seventy days. That would largely eliminate the leverage that engenders the defendant's compliance with a DPA's conditions. The statutory exclusion of time for DPAs therefore is essential to the agreements' effective operation.

B.

Fokker Services, a Dutch aerospace services company, provides technical and logistical support to owners of aircraft manufactured by its predecessor company. In 2010, Fokker voluntarily disclosed to the United States Departments of Treasury and Commerce that it had potentially violated federal sanctions and export control laws concerning Iran, Sudan, and Burma. At the time Fokker came forward, no government agency had initiated any investigation focused on the company.

Over the course of the next four years, Fokker cooperated in the wide-ranging investigation conducted by federal authorities. The company facilitated interviews of relevant witnesses, expedited the government's requests to Dutch authorities for documents under the Mutual Legal Assistance Treaty, and initiated its own internal investigation. Fokker's internal investigation revealed that, from 2005 to 2010, the company had participated in 1,147 illicit transactions through which it earned some $21 million in gross revenue. The company instituted remedial measures to improve its sanctions compliance program, adopting a set of procedures to track parts and bolstering its employee training requirements. It also fired its president and demoted or reassigned other employees who had been involved in the violations. The company's compliance efforts have been described by government officials as "a model to be followed by other corporations." Gov't Supp. Mem. in Support of DPA Reached with Fokker Services, B.V., at 15.

In light of Fokker's cooperation, remediation efforts, and other mitigating factors, federal agencies negotiated a global settlement with the company. The settlement included, as an integral component, an 18–month DPA. During the DPA's 18–month period, Fokker was to: continue full...