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Buckley Commentary & Analysis

"When the government wants to cut and run, but a judge won’t be a rubber stamp" by Nadav Ariel

Buckley Commentary & Analysis

Nadav Ariel

Judge Emmet Sullivan of the U.S. District Court for the District of Columbia turned political and judicial heads by refusing to immediately rubber stamp the government’s decision to drop the prosecution of Michael Flynn after it had already obtained a guilty plea. However, he is not the first judge to scrutinize the government’s reasons for moving to dismiss a case. Recent cases that have received less publicity than United States v. Flynn illustrate the extent to which judges can frustrate the prosecution’s desire to immediately end prosecutions that are going sideways.

Forcing government disclosures prior to granting dismissal

Most recently, in United States v. Sadr, the U.S. Attorney’s Office for the Southern District of New York moved for an order of nolle prosequi of an indictment (essentially, an abandonment of the charges) that had already resulted in a guilty verdict at trial for violating Iran sanctions. The defendant had alleged that prosecutors had failed to turn over exculpatory evidence until the middle of trial and even after the conviction. In response to the government’s motion to abandon the prosecution, the defendant proposed an alternative dismissal mechanism, and asked the court to vacate the verdict based on the government’s Brady violations and then dismiss the charges with prejudice.

Rather than immediately nolle pros the case as requested, the court ordered the government to respond to the defendant’s proposed dismissal mechanism and also address the court’s authority to order sanctions against prosecutors after a dismissal. The government had to provide extensive information about its failure to disclose the exculpatory evidence, including identifying all attorneys and supervisors, responsible for or involved in the disclosure failures and any related misrepresentations to the court, as well as explain to the court the role the withholding of evidence played in the decision to abandon the indictment. 

The Sadr judge, like Judge Sullivan in Flynn, had the power to scrutinize prosecutorial conduct under Federal Rule of Criminal Procedure 48, which requires prosecutors to seek leave of court to dismiss a prosecution.  The government in Sadr wanted nothing more than to dismiss the charges and avoid “continued litigation about suppression issues” and spending “the resources that would be required to address all of these issues,” but the judge refused to let it off the hook so easily. Instead, the judge required the prosecution to make extensive disclosures and then consent to the court’s continued jurisdiction regarding potential sanctions for actions taken during the now-abandoned prosecution. It was only after the government responded to the court’s order for additional information that the judge agreed to dismiss the case, ordering that, consistent with the defendant’s preferred method of dismissal, the verdict would be vacated and the indictment dismissed with prejudice.

Forcing the government to move forward with trial

The government ran into different problems a few years earlier when it filed charges in the District of Connecticut against a Swiss commodities trader, and a few months before trial sought their dismissal in order to change the venue. The defendant in United States v. Flotron had been arrested in 2017 on a visit to the U.S. after moving from Connecticut to Switzerland. He was charged with conspiracy to commit wire fraud, commodities fraud, and spoofing, and the government alleged the conduct had taken place in “the District of Connecticut and elsewhere.”

Less than three months before his scheduled trial, the government filed a superseding indictment adding six related substantive counts, but now alleged that the transactions giving rise to the indictment actually occurred in the Northern District of Illinois, where the Chicago commodities exchange is located. Consequently, prosecutors moved to dismiss all of the counts, old and new, without prejudice so that they could be refiled in the Northern District of Illinois.

The District of Connecticut judge agreed to dismiss the six new substantive counts without prejudice, but refused to dismiss the conspiracy count because dismissal there “would be contrary to the manifest public interest” and the defendant’s interest in a speedy trial. The judge initially found that the government had “acted in bad faith by seeking to delay and move the trial” to Illinois, although ultimately vacated that finding despite concern with the government’s delay in disclosing that venue was improper and with the government’s apparent intent to “re-load and re-file against defendant in Chicago.” The defendant then went to trial before a Connecticut jury and was found not guilty of the conspiracy charge; the government subsequently abandoned the additional substantive charges against him.

Both Sadr and Flotron demonstrate that judges have the power to frustrate the government’s wishes to quickly abandon cases that are not going well, especially where the government tries to retain the ability to re-file in the future and perhaps fix the problems with their existing prosecutions. Each case also implicated potential prosecutorial misconduct, suggesting that courts may defer less to prosecutorial discretion when the government’s actions and motives are already in question.

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