throbber
United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Decided April 5, 2016
`
`
`
`Argued September 11, 2015
`
`
`No. 15-3016
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`FOKKER SERVICES B.V.,
`APPELLANT
`
`
`
`Consolidated with 15-3017
`
`
`
`Appeals from the United States District Court
`for the District of Columbia
`and Petition for the Writ of Mandamus
`(No. 1:14-cr-00121-1)
`
`
`
`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.
`
`
`
`

`
`2
`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.
`
`
`
`
`

`
`3
`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
`
`
`
`
`
`

`
`4
`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
`Id.
`information or
`indictment by
`the government.
`
`§ 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).
`
`
`
`

`
`5
`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
`
`
`
`

`
`6
`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
`
`
`
`

`
`7
`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 cooperation
`with the government, implement its new compliance policy,
`and pay fines and penalties totaling $21 million (a sum
`equaling the gross revenues gained by the company from the
`illicit transactions). Fokker also accepted responsibility for
`the acts described
`in
`the stipulated factual statement
`accompanying the DPA.
`On June 5, 2014, pursuant to the agreement, the
`government filed with
`the district court a one-count
`information against Fokker, together with the DPA. The
`information charged Fokker with conspiracy to violate the
`International Emergency Economic Powers Act. See 18
`U.S.C. § 371; 50 U.S.C. § 1705. The same day, the
`government and Fokker filed a joint motion for the exclusion
`of time under the Speedy Trial Act, in order to “allow [the
`company] to demonstrate its good conduct and implement
`certain remedial measures.” Joint Consent Motion for
`Exclusion of Time Under the Speedy Trial Act, at 1.
`The district court then held a series of status conferences,
`during which it repeatedly emphasized its concerns about the
`absence of any criminal prosecution of individual company
`officers. Tr. of Status Conference (June 25, 2014), at 4; Tr. of
`Status Conference (July 9, 2014), at 5. The court requested
`several additional written submissions from the government.
`The government was asked to explain why the interests of
`
`
`
`

`
`8
`justice supported the court’s approval of the deal embodied by
`the DPA, and also to address whether Fokker’s initial
`disclosures to the government had in fact been voluntary. See
`Tr. of Status Conference (June 25, 2014), at 3-4; Tr. of Status
`Conference (July 9, 2014), at 5-6.
` In response, the
`government described why the “proposed resolution with
`Fokker Services is fair and is an appropriate exercise of the
`government’s discretion,” Gov’t Mem. in Support of DPA
`Reached with Fokker Services, B.V., at 2, and affirmed the
`absence of any
`indication “that Fokker Services was
`motivated to make its disclosures out of fear about a
`nonexistent U.S. government investigation,” Gov’t Status
`Report, at 15. The district court later expressed that it might
`still reject the DPA because it was “too good a deal for the
`defendant.” Tr. of Status Conference (Oct. 29, 2014), at 4.
`On February 5, 2015, the district court denied the joint
`motion for the exclusion of time. In explaining the reasons
`for its decision, the court criticized the government for failing
`to prosecute any “individuals . . . for their conduct.” United
`States v. Fokker Services, B.V., 79 F. Supp. 3d 160, 166
`(D.D.C. 2015). According to the court, approval of an
`agreement in which the defendant had been “prosecuted so
`anemically for engaging in such egregious conduct for such a
`sustained period of time and for the benefit of one of our
`country’s worst enemies” would “promote disrespect for the
`law.” Id. at 167. The court further noted that certain
`employees had been permitted to remain with the company;
`that the DPA contained no requirement for an independent
`monitor; and that the amount of the fine failed to exceed the
`revenues Fokker gained from the illegal transactions. Id. at
`166. Based on those considerations, the court rejected the
`DPA as an “[in]appropriate exercise of prosecutorial
`discretion.” Id. at 167.
`
`
`
`

`
`9
`The district court’s order marks the first time any federal
`court has denied a joint request by the parties to exclude time
`pursuant to a DPA. Both parties filed a timely notice of
`appeal. Because both parties seek to overturn the district
`court’s denial of their joint motion to exclude time, we
`appointed an amicus curiae to present arguments defending
`the district court’s action.
`
`II.
`Although we face a threshold question concerning our
`jurisdiction to review the district court’s interlocutory order,
`our assessment of the jurisdictional issue is substantially
`informed by our consideration of the merits of the parties’
`challenge to the district court’s action. Consequently, in
`accordance with our approach in parallel circumstances, see
`In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir.
`2014), we first consider whether the district court legally
`erred in its denial of the joint motion to exclude time pursuant
`to the DPA. We conclude that it did.
`By rejecting the DPA based primarily on concerns about
`the prosecution’s charging choices, the district court exceeded
`its authority under the Speedy Trial Act. The Act excludes
`any period of time “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.” 18 U.S.C. § 3161(h)(2). While the exclusion
`of time is subject to “the approval of the court,” there is no
`ground for reading that provision to confer free-ranging
`authority in district courts to scrutinize the prosecution’s
`discretionary charging decisions. Rather, we read the statute
`against
`the
`background
`of
`settled
`constitutional
`understandings under which authority over criminal charging
`decisions resides fundamentally with the Executive, without
`
`
`
`

`
`10
`the involvement of—and without oversight power in—the
`Judiciary. So understood, 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.
`
`A.
`
`The Executive’s primacy in criminal charging decisions
`is long settled. That authority stems from the Constitution’s
`delegation of “take Care” duties, U.S. Const. art. II, § 3, and
`the pardon power, id. § 2, to the Executive Branch. See
`United States v. Armstrong, 517 U.S. 456, 464 (1996); In re
`Aiken Cnty., 725 F.3d 255, 262-63 (D.C. Cir. 2013).
`Decisions to initiate charges, or to dismiss charges once
`brought, “lie[] at the core of the Executive’s duty to see to the
`faithful execution of the laws.” Cmty. for Creative Non-
`Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986).
`The Supreme Court thus has repeatedly emphasized that
`“[w]hether to prosecute and what charge to file or bring
`before a grand jury are decisions that generally rest in the
`prosecutor’s discretion.” United States v. Batchelder, 442
`U.S. 114, 124 (1979); see Bordenkircher v. Hayes, 434 U.S.
`357, 364 (1978).
`Correspondingly, “judicial authority is . . . at its most
`limited” when
`reviewing
`the Executive’s exercise of
`discretion over charging determinations. Pierce, 786 F.2d at
`1201; see ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270,
`283 (1987). The decision whether to prosecute turns on
`factors such as “the strength of the case, the prosecution’s
`general deterrence value, the [g]overnment’s enforcement
`priorities, and the case’s relationship to the [g]overnment’s
`overall enforcement plan.” Wayte v. United States, 470 U.S.
`598, 607 (1985). The Executive routinely undertakes those
`assessments and is well equipped to do so. By contrast, the
`
`
`
`

`
`11
`Judiciary, as the Supreme Court has explained, generally is
`not “competent to undertake” that sort of inquiry. Id. Indeed,
`“[f]ew subjects are less adapted to judicial review than the
`exercise by the Executive of his discretion in deciding when
`and whether to institute criminal proceedings, or what precise
`charge shall be made, or whether to dismiss a proceeding
`once brought.” Newman v. United States, 382 F.2d 479, 480
`(D.C. Cir. 1967). “Judicial supervision in this area” would
`also “entail[] systemic costs.” Wayte, 470 U.S. at 608. It
`could “chill law enforcement,” cause delay, and “impair the
`performance of a core executive constitutional function.”
`Armstrong, 517 U.S. at 465 (quotation omitted). As a result,
`“the presumption of regularity” applies to “prosecutorial
`decisions and, in the absence of clear evidence to the contrary,
`courts presume that [prosecutors] have properly discharged
`their official duties.” Id. at 464 (internal quotation marks,
`quotation, and alterations omitted).
`
`B.
`Those settled principles counsel against interpreting
`statutes and rules in a manner that would impinge on the
`Executive’s constitutionally rooted primacy over criminal
`charging decisions. Of particular salience, 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.
`
`
`
`

`
`12
`the ‘leave of court’
`the “principal object of
`Rather,
`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). 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. Id.
`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. See In re United States, 345
`F.3d 450, 453 (7th Cir. 2003). The authority to make such
`determinations remains with the Executive.
`our
`informed
`The
`same
`considerations
`have
`understanding of the respective roles of the Executive and the
`courts with regard to the acceptance of certain civil consent
`decrees proposed by enforcement agencies. A provision of
`the Antitrust Procedures and Penalties Act, known as the
`Tunney Act, calls for a district court to enter a proposed
`antitrust consent decree if “in the public interest.” 15 U.S.C.
`§ 16(e). In United States v. Microsoft Corp., 56 F.3d 1448
`(D.C. Cir. 1995), the Department of Justice filed a civil
`antitrust complaint against Microsoft,
`together with a
`proposed consent decree embodying the parties’ settlement of
`the case. Id. at 1452. The district court denied approval of
`the consent decree based on a belief that the complaint and
`
`
`
`

`
`13
`decree were inadequate in scope to address Microsoft’s
`objectionable conduct. Id. at 1452-55. The court concluded
`that the consent decree therefore failed to satisfy the statute’s
`“public interest” standard.
`We reversed the district court and remanded for entry of
`the proposed decree. The appellants argued that the district
`judge had understood his authority under the statute’s “public
`interest” provision unduly expansively, so as to enable him to
`“bas[e] his rejection of the decree on considerations which
`implicate the executive branch’s prosecutorial discretion.” Id.
`at 1457. We agreed, explaining that the “public interest”
`standard did not “empower[]” the district judge to reject “the
`remedies sought” in the consent decree “merely because he
`believed other remedies were preferable.” Id. at 1460.
`Moreover, we indicated that the district “court was barred
`from reaching beyond the complaint to examine practices the
`government did not challenge.” Id. To be sure, a “district
`judge is not obliged to accept” a proposed decree “that, on its
`face and even after government explanation, appears to make
`a mockery of judicial power.” Id. at 1462. But “[s]hort of
`that eventuality,” we explained, “the Tunney Act cannot be
`interpreted as an authorization for a district judge to assume
`the role of Attorney General.” Id. Consequently, a district
`court should not “reject a consent decree simply because it
`believes the [g]overnment could have negotiated a more
`exacting decree,” Massachusetts v. Microsoft Corp., 373 F.3d
`1199 (D.C. Cir. 2004), or because it believes the government
`“failed to bring the proper charges,” SEC v. Citigroup Global
`Mkts., Inc., 752 F.3d 285, 297 (2d Cir. 2014).
`As we have since explained, we “construed the public
`interest inquiry” under the Tunney Act “narrowly” in “part
`because of the constitutional questions that would be raised if
`courts were to subject the government’s exercise of its
`prosecutorial discretion to non-deferential review.” Mass.
`
`
`
`

`
`14
`Sch. of Law at Andover, Inc. v. United States, 118 F.3d 776,
`783 (D.C. Cir. 1997); see Swift v. United States, 318 F.3d 250,
`253 (D.C. Cir. 2003). The upshot is that the “public interest”
`language in the Tunney Act, like the “leave of court”
`authority in Rule 48(a), confers no new power in the courts to
`scrutinize and countermand the prosecution’s exercise of its
`traditional authority over charging and enforcement decisions.
`
`C.
`The same considerations govern our interpretation of the
`Speedy Trial Act provision at issue here. That provision, as
`noted, allows for excluding “[a]ny period of delay during
`which prosecution is deferred by the attorney for the
`Government pursuant to [a DPA], with the approval of the
`court, for
`the purpose of allowing
`the defendant
`to
`demonstrate his good conduct.” 18 U.S.C. § 3161(h)(2). As
`with the “leave of court” language in Rule 48(a) and the
`“public interest” authority in the Tunney Act, we construe the
`“approval of the court” language in § 3161(h)(2) in a manner
`that preserves the Executive’s long-settled primacy over
`charging decisions and that denies courts substantial power to
`impose their own charging preferences.
`As an initial matter, the context of a DPA, like that of
`Rule 48(a), concerns the prosecution’s core prerogative to
`dismiss criminal charges. While dismissal under a DPA
`follows from the defendant’s adherence to agreed-upon
`conditions over a specified period, the decision to seek
`dismissal pursuant to a DPA—as under Rule 48(a)—
`ultimately stems from a conclusion that additional prosecution
`or punishment would not serve the public interest. Dismissal
`in either situation thereby fulfills the Executive’s duty under
`Article II to see that the laws are faithfully executed. See
`Pierce, 786 F.2d at 1201.
`
`
`
`

`
`15
`We see no reason to recognize a substantially broader
`authority for courts to scrutinize prosecutorial charging
`choices in the context of a DPA than in the context of Rule
`48(a). Just as Rule 48(a)’s “leave of court” authority does not
`allow a court to withhold approval of a motion to dismiss
`charges based on a belief that more serious charges should be
`brought against the defendant (or against a third party),
`§ 3161(h)(2)’s “approval of the court” authority does not
`permit a court to withhold approval of a motion to exclude
`time under a DPA based on that same belief. In either
`situation, the court’s withholding of approval would amount
`to a substantial and unwarranted intrusion on the Executive
`Branch’s fundamental prerogatives. And the Judiciary’s lack
`of competence to review the prosecution’s initiation and
`dismissal of charges, see Wayte, 470 U.S. at 607-08, equally
`applies to review of the prosecution’s decision to pursue a
`DPA and the choices reflected in the agreement’s terms. As
`with conventional charging decisions, a DPA’s provisions
`manifest the Executive’s consideration of factors such as the
`strength of the government’s evidence, the deterrence value of
`a prosecution, and the enforcement priorities of an agency,
`subjects that are ill-suited to substantial judicial oversight. Id.
`
`To be sure, the criminal charges filed as part of a DPA
`remain on the court’s docket throughout the time of the
`agreement (i.e., pending assessment of whether the defendant
`has satisfied the agreement’s conditions, upon which the
`prosecution seeks dismissal of the charges). But the existence
`of charges on the court’s docket suggests no greater power on
`the part of the court to second-guess the underlying charging
`decisions than under Rule 48(a): there, too, criminal charges
`remain on the court’s docket until dismissed. The key point is
`that, although charges remain pending on the court’s docket
`under a DPA, the court plays no role in monitoring the
`defendant’s compliance with the DPA’s conditions. For
`
`
`
`

`
`16
`instance, defendants who violate the conditions of their DPA
`face no
`court-ordered
`repercussions.
` Rather,
`the
`prosecution—and
`the prosecution
`alone—monitors
`a
`defendant’s compliance with the agreement’s conditions and
`determines whether
`the defendant’s conduct warrants
`dismissal of the pending charges. Just as is the case under
`Rule 48(a), the prosecution, after taking stock of the
`circumstances, concludes that continued pursuit of a criminal
`conviction is unwarranted.
`A comparison to civil consent decrees is also instructive
`in this regard. Civil consent decrees not only remain on a
`court’s docket, but the court—unlike with a DPA—can
`enforce the decree’s terms through exercise of the contempt
`power. Even in the face of that enhanced judicial role, we
`have narrowly construed a court’s “public interest” authority
`to review a proposed antitrust consent decree under the
`Tunney Act so as to avoid encroaching on the Executive’s
`core discretion over enforcement decisions. See Microsoft, 56
`F.3d at 1460-62; Massachusetts School of Law, 118 F.3d at
`783. And as a general matter, Executive independence is
`assumed to be even more pronounced in the context of
`criminal charging decisions than in the context of civil
`enforcement decisions. See In re Aiken County, 725 F.3d at
`264-65 n.9. In that light, we perceive no basis for concluding
`that courts have greater power to second-guess charging
`decisions when reviewing the terms of a DPA than when
`reviewing any other Executive exercise of criminal charging
`authority, including dismissals of charges under Rule 48(a).
`The text of § 3161(h)(2) does not dictate any contrary
`conclusion. The statutory language ties the “approval of the
`court” requirement to the DPA’s “purpose of allowing the
`defendant to demonstrate his good conduct.” 18 U.S.C.
`§ 3161(h)(2).
` We thus understand a court’s approval
`authority for the exclusion of time under a DPA to have a
`
`
`
`

`
`17
`particular focus: i.e., to assure that the DPA in fact is geared
`to enabling the defendant to demonstrate compliance with the
`law, and is not instead a pretext intended merely to evade the
`Speedy Trial Act’s time constraints. Whatever may be the
`precise contours of that authority of a court to confirm that a
`DPA’s conditions are aimed to assure the defendant’s good
`conduct, it does not permit the court to impose its own views
`about the adequacy of the underlying criminal charges.
`Rather, as under Rule 48(a), those core charging decisions
`remain the province of the Executive.
`The Senate Committee Report accompanying the Speedy
`Trial Act reinforces that circumscribed understanding of a
`district court’s “approval” authority under § 3161(h)(2). The
`report describes the phrase, “with the approval of the court,”
`as designed to “assure[] that the court will be involved in the
`decision to divert and that the procedure will not be used by
`prosecutors and defense counsel to avoid the speedy trial time
`limits.” S. Rep. No. 93-1021, at 37 (1974). That statement
`suggests that the judicial-approval requirement was not
`intended
`to
`impinge on
`the Executive’s
`traditional
`independence over charging decisions.
` Rather,
`the
`requirement enables courts to assure that a DPA does not exist
`merely to allow evasion of speedy trial time limits, but instead
`serves the bona fide purpose of confirming a defendant’s
`good conduct and compliance with law.
` The Senate
`Committee Report further describes § 3161(h)(2) as generally
`intended to “encourage the current trend among United States
`attorneys” of holding criminal charges in abeyance while
`defendants participate in rehabilitation programs. Id. at 36.
`Interpreting § 3161(h)(2) to empower courts to scrutinize the
`prosecution’s underlying charging decisions would tend to
`discourage—not encourage—the prosecution’s use of DPAs,
`contradicting the provision’s apparent overarching object.
`
`
`
`
`

`
`18
`D.
`In defending the notion that § 3161(h)(2)’s “approval of
`the court” language gives district courts substantial authority
`to second-guess the prosecution’s charging decisions, amicus
`seeks to analogize a court’s review of a DPA under
`§ 3161(h)(2) to a court’s review of a proposed plea agreement
`under Rule 11 of the Federal Rules of Criminal Procedure.
`That argument fails.
`To begin with, even in the context of reviewing a
`proposed plea agreement under Rule 11, a district court lacks
`authority to reject a proposed agreement based on mere
`disagreement with a prosecutor’s underlying charging
`decisions. Rule 11 states that a district court may “accept the
`agreement, reject it, or defer a decision until the court has
`reviewed
`the presentence report.”
` Fed. R. Crim. P.
`11(c)(3)(A).
` Although “district courts must exercise
`discretion in deciding whether to accept or reject a guilty plea,
`that discretion is not unfettered.” United States v. Maddox, 48
`F.3d 555, 556 (D.C. Cir. 1995). In particular, we have
`explained, “trial judges are not free to withhold approval of
`guilty pleas . . . merely because

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