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'Fokker' Decision Raises Concerns About Deferred Prosecution Agreements

By Jonathan R. Tung, Esq. on April 20, 2016 | Last updated on March 21, 2019

According to a recent ruling by the D.C. Circuit, federal judges have no authority to "second-guess" the practice of federal prosecutors cutting deals with companies indicted for criminal wrongdoing. Such deals are known professionally as "deferred prosecution agreements."

The opinion, written by Judge Sri Srinivasan, shines a light on the somewhat controversial practice of negotiating with criminal defendants to pay big money instead of marring themselves with a criminal record.

Deferred Prosecution Agreement

Deferred Prosecution Agreements (DPAs) allow criminal defendants (usually companies) to avoid prosecution by agreeing to pay a find and submitting to probation after accepting responsibility for wrongdoing. The defendant is out money, but they are able to avoid criminal conviction.

What seems distatsteful to many is the observation that only the wealthy and well connected enjoy such favorable deals, leading many to argue that companies can flout the law with impunity and regard DPAs or fines as "costs of doing business."

Illegal Plan Shipments to Iran, Sudan, Burma

In 2015, federal district court judge Richard Leon refused to approve a settlement DPA between federal prosecutors and defendant Fokker Services after the company admitted that it had illegally shipped some 1,100 aircraft parts, tech, and services worth $21 million to Iran, Sudan, and Burma. The settlement called for Fokker to forfeit $10.5 million and pay a civil fine of $10.5 -- thus accounting for the $21 million. Fokker dodged criminal sanctions.

Undermining the Public Confidence in Justice

Leon found the DPA to be antithetical to the proper administration of justice and declared that "it would undermine the public's confidence in the administration of justice and promote disrespect for the law." He further declared that the prosecution of the defendant was anemic especially in light of the fact that America's worst enemies had benefitted.

DC Circuit Overturns

Judge Leon will have to revise his opinion because the DC Circuit granted the government's writ of mandamus. In the opinion of the circuit, "The Constitution allocates primacy in criminal charging decisions to the Executive Branch." The court also states, "It has long been settled that the Judiciary generally lacks authority to second-guess executive determinations, much less to impose its own charging preferences."

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