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USA v. Flynn Part I: Whose Case Is This? The Defendant's? The Government's? The Judge's? The Public's?

by: Guest Blogger: Kamal Ghali, Bondurant, Mixon, Elmore

One premise of David Markus’s position appears to be that once DOJ decides to initiate a case, it remains DOJ’s case, regardless of the procedural posture of the case (investigation, indictment, conviction, sentencing, appeal, habeas). And for that reason, a federal judge should have (almost) no authority to deny DOJ’s motion to dismiss an indictment under Federal Rule of Criminal Procedure 48(a) when a defendant consents to that dismissal. But, to make a point related to Don Samuel’s response, is it really true that it remains “DOJ’s case” after a conviction?

After all, a guilty plea requires the active participation of the judge, including his or her independent fact-findings about whether the guilty plea is knowing, voluntary, and has a sufficient factual basis. A judge can only make this finding after the defendant swears, under penalty of perjury, to tell the truth. In other words, a plea hearing isn’t just an adversarial proceeding. It is designed, in part, to ensure that defendants aren’t being railroaded into admitting that they did something that they didn’t. (Even those who believe that the guilty plea process does a bad job at preventing innocent people from pleading guilty can at least agree that the point of such a hearing is to make sure that doesn’t happen.). Here, the judge found that Flynn, a well-educated, three-star general, and former National Security Advisor, who was represented by Covington & Burling, made a “knowing and voluntary” plea.

Although a judge’s failure to dismiss criminal charges before a conviction might raise a host of serious issues, why should we assume that DOJ retains complete control over the matter after conviction? Is DOJ’s active participation even required after a guilty plea? Or after a jury finds a defendant guilty beyond a reasonable doubt? Once there’s a conviction, the federal judiciary’s own fact-finding machinery kicks in. And under the Federal Rules, the U.S. Probation Office, not DOJ, is required to conduct its own sentencing investigation. See Fed. R. Crim. P. 32(c) (“Required Investigation”). Although there are a number of statutorily-mandated factors a court must consider before imposing a sentence, DOJ’s opinion on the appropriate sentence is not one of them. 18 U.S.C. 3553(a). While DOJ still carries obligations and responsibilities after conviction, including its continuing obligation to disclose Brady evidence, the Federal Rules of Criminal Procedure do not appear to mandate its active participation in sentencing.

But what does it even mean to dismiss the indictment after conviction? Does the document initiating charges much matter after a jury verdict or a guilty plea? To that end, the text of Rule 48(a) itself doesn’t purport to apply after conviction. Fed. R. Crim. P. 48(a) (“By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant's consent.”). Of course, there are cases applying Rule 48(a) to motions to dismiss after conviction. And there are other cases supporting DOJ’s position as well David Markus’s view that courts have limited authority to deny motions to dismiss. See, e.g., United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016) (“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. 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. The authority to make such determinations remains with the Executive.”) (citations omitted).

But the only U.S. Supreme Court case to address the scope of Rule 48(a) after conviction acknowledges that a district judge has at least some authority to deny a motion to dismiss in certain circumstances.

In 1977, the U.S. Supreme Court wrote:

Here, the Government filed a motion under Fed. Rule Crim. Proc. 48(a) seeking “leave of court” to dismiss the federal charges against petitioner. Under the standard applied by the Court of Appeals, the District Court was empowered to withhold leave if the Government's decision to terminate this prosecution clearly disserved the public interest . . . The salient issue, however, is not whether the decision to maintain the federal prosecution was made in bad faith but rather whether the Government's later efforts to terminate the prosecution were similarly tainted with impropriety. Our examination of the record has not disclosed (and we will not presume) bad faith on the part of the Government at the time it sought leave to dismiss the indictment against petitioner. The decision to terminate this prosecution, based as it was on the Petite policy, was motivated by considerations which cannot fairly be characterized as clearly contrary to manifest public interest.

Rinaldi v. United States, 434 U.S. 22, 29–30 (1977) (citations omitted) (emphasis added). The Supreme Court went on to reverse the district court’s denial of DOJ’s motion to dismiss an indictment (per Rule 48(a)) as an abuse of discretion. In dissent, Justice Rehnquist wrote, “Federal Rule Crim. Proc. 48(a) allows the United States to move to dismiss an indictment only ‘by leave of court.’ This proviso was specifically added as an amendment to the original draft, which had provided for automatic dismissal upon the motion of the United States, and would seem clearly directed toward an independent judicial assessment of the public interest in dismissing the indictment.” Id., at 34 (Rehnquist, J., dissenting) (emphasis added). Notably, the majority took no issue with Justice Rehnquist’s history of Rule 48(a) as replacing a prior draft that would have required “automatic dismissal” upon DOJ’s motion. And the majority took no issue with the notion that a court has discretion to decide whether it is appropriate to dismiss the indictment (ruling only that the district court abused that discretion in the case before it). But the Court didn’t spell out the scope of a district court’s discretion.

I suppose there could be a rule that requires “automatic dismissal” of an indictment upon DOJ’s request, at any phase of the prosecution including after sentencing, provided that a defendant agrees. But I don’t think Rule 48(a)’s text gives DOJ an absolute right to an immediate dismissal of criminal charges after conviction solely because a defendant agrees. This is not to say that Judge Sullivan’s decision to appoint Judge Gleeson doesn’t raise a host of other issues. But it is to say that things change once a defendant is convicted. Of course, the judge could grant a motion to withdraw the guilty plea; he could set aside the conviction on various procedural grounds; and he could take a number of other steps to functionally stop this case. But given that a defendant swore under penalty of perjury that he committed a crime, that DOJ agreed that the defendant committed a crime, and that a federal judge found that the defendant committed a crime, there’s nothing inherently wrong with a judge asking hard questions about why this happened before he dismisses the case altogether.