How Should the District Court Evaluate the Motion to Dismiss the Charges Against Mayor Adams?
Yesterday, I blogged about the Justice Department’s pending motion to dismiss in the criminal case against Mayor Adams. My argument was that the dismissal motion was easy to justify, particularly given the new Administration’s change in priorities for law enforcement. I also noted that the Department’s dismissal motion would be subject district court review under a deferential “public interest” standard. I also criticized those who argued that the dismissal motion was a negotiated quid pro quo between the Justice Department and Adams—a position that was unequivocally corroborated by a letter to the court from Adams’s defense attorneys.
In another development yesterday, the district judge in S.D.N.Y. handling the matter (Judge Dale E. Ho) entered an order directing the parties (the Justice Department and Adams) to appear before him today to “address, inter alia, the reasons for the Government’s motion, the scope and effect of Mayor Adams’s ‘consent in writing,’ and the procedure for resolution of the motion.”
In this post, I discuss what standard Judge Ho should apply in evaluating the pending dismissal motion, making three points: (1) existing Second Circuit case law is very deferential on issues relating to prosecutorial priorities, which would seem to dictate approval of the dismissal; (2) existing Second Circuit caselaw appears to improperly ignore the possibility that crime victims might exercise their congressionally protected right to be reasonable heard on dismissal motions; and (3) while some parts of the Adams prosecution appear to involve “victimless” crimes, at least one of the counts appears to involve a “victim”—specifically New York City, which has (allegedly) been defrauded of “matching funds” during the election process. If my analysis is correct, the judicial procedures for determining the dismissal will need to include the crime victim’s right to confer and to be heard under the federal Crime Victims’ Rights Act.
I. The Deferential Standard for Reviewing Dismissal Motions in the Second Circuit.
Turning first to the issue of what standard the district court applies in reviewing a motion to dismiss filed under Federal Rule of Criminal Procedure 48(a), let’s start with the rule’s text: “The government may, with leave of court, dismiss an indictment, information, or complaint” (emphasis added). The key issue that arises, of course, is how to interpret the “leave of court” requirement. The Advisory Committee Notes to the 1944 Amendment adding this language indicate that this requirement was a “change [in] existing law. The common-law rule that the public prosecutor may enter a nolle prosequi in his discretion, without any action by the court, prevails in the Federal courts.”
Interesting history underlies the 1944 Amendment, usefully recounted by (now-Virginia law professor) Thomas Frampton. In his June 2020 Stanford Law Review Online article, entitled “Why Do Rule 48(a) Dismissals Require ‘Leave of Court’?”, Frampton recounts forty-year-old old dicta in the “sole Supreme Court case interpreting Rule 48(a),” Rinaldi v. United States, 434 U.S. 22 (1977) (per curiam). As Frampton explains, there the Court stated that the “leave of court” language was added to Rule 48(a) “without explanation,” but “apparently” this verbiage had as its “principal object …. to protect a defendant against prosecutorial harassment.” Frampton’s article argues that this position is simply wrong: “In fact, the ‘principal object’ of Rule 48(a)’s ‘leave of court’ requirement was not to protect the interests of individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.”
Perhaps the most famous case interpreting the “leave of court” requirement is the 2020 case involving Michael Flynn. There, the Justice Department moved to dismiss criminal charges against Flynn, and the district judge handling the matter, Judge Sullivan, appointed an amicus to argue against dismissal. I blogged about the case at that time–taking the position that the “victimless” crime alleged against Flynn was “a curious one for close judicial scrutiny of a Government motion to dismiss–closer scrutiny should be reserved for cases in which crime victims have a clear interest.” Because what I wrote then appears to have some application to the Adams case, I recount some of my analysis about the Flynn case here.
In the Flynn case, the standard that the district judge was to apply in reviewing a motion to dismiss was generally understood to give considerable deference to prosecutors. For example, the D.C. Circuit (the appellate court which had authority over Judge Sullivan) had previously explained the limited role that trial judges have in reviewing motions to dismiss:
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).…
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.
United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016).
Ultimately, in a 2-1 panel decision in the Flynn case, the D.C. Circuit held that the district court could not even hold a hearing on the issue of dismissal. The panel held that “[t]his is not a case about whether ‘a district judge may even hold a hearing on a Rule 48(a) motion.’ Rather, it is about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by … probing the government’s motives. On that, both the Constitution and cases are clear: he may not.”
I was critical of the D.C. Circuit’s panel decision at the time. I blogged that “the majority’s reading of Rule 48(a) essentially turns it into a dead letter. Rule 48(a) specifically envisions some role—albeit a limited one—for the district court in evaluating motions to dismiss. It is hard to understand how the mere holding of a hearing on whether to grant leave of court is such an extraordinary abuse of power to warrant granting a writ of mandamus.”
Later, the D.C. Circuit en banc essentially agreed with my view, granting rehearing and ultimately holding that a writ of mandamus was not appropriate for superintending the district court’s actions. The D.C. Circuit en banc held that all the legal questions could be reviewed on a later appeal from the district court. Thereafter, President Trump pardoned Flynn, and the case was ultimately dismissed as moot.
It appears that the law in the Second Circuit is generally the same as the D.C. Circuit, at least with regard to deference to prosecutors. Indeed, in a 2017 decision, the Second Circuit cited the Fokker decision repeatedly and favorably in rejecting a district court’s efforts to involve itself in the the implementation of a deferred prosecution agreement. See United States v. HSBC Bank USA, N.A., 863 F.3d 125 (2d Cir. 2017). And in a 2022 decision, United States v. Blasczcak (cited by Judge Ho in his order directing a hearing), the Second Circuit said much the same thing:
Rule [48(a)] was not promulgated to shift absolute power from the Executive to the Judicial Branch. Rather, it was intended as a power to check power. The Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated. The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest. In this way, the essential function of each branch is synchronized to achieve a balance that serves both practical and constitutional valu
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