[00:00:01] Speaker 02: Case 15-3016 et al. [00:00:05] Speaker 02: United States of America versus Fokker Services be the appellant. [00:00:08] Speaker 02: Mr. Bomzai for the appellant, Mr. O'Callaghan for the appellant, and Mr. Unikowsky for the amicus. [00:00:18] Speaker 01: Thank you, Your Honor, and may it please the Court. [00:00:20] Speaker 01: At this time, on behalf of the United States, I'd like to reserve two minutes of my ten minutes for rebuttal. [00:00:26] Speaker 01: This case involves a district court's attempt to exceed statutory role under the Speedy Trial Act and intrude into discretion that's properly allocated to the prosecutor, and this court has jurisdiction to correct the district court's legal error on one of two alternative grounds. [00:00:43] Speaker 00: Which do you think is the strongest? [00:00:45] Speaker 01: Well, Your Honor, we think that both are equally strong. [00:00:47] Speaker 00: No, that's not the answer to the question. [00:00:50] Speaker 01: Well, Your Honor, we think both arguments are very strong. [00:00:52] Speaker 00: Which is stronger? [00:00:53] Speaker 01: Your Honor, the first argument that the court must address is the collateral order. [00:00:59] Speaker 00: You're still not answering the question. [00:01:01] Speaker 00: Which is stronger? [00:01:03] Speaker 01: Your Honor, I suppose I would say the collateral order doctrine is stronger, because that's the argument that the court would have to address first. [00:01:10] Speaker 01: And then Van Davis is our fallback argument, because. [00:01:13] Speaker 00: I'm not sure that's a logical position. [00:01:15] Speaker 01: Your Honor, we certainly think both arguments are strong. [00:01:19] Speaker 01: We think mandamus is a stronger argument, if that's the way you want to look at it. [00:01:24] Speaker 00: And that's because... I thought eventually you'd get to that point. [00:01:33] Speaker 01: No, that's because mandamus asks the court to consider... It has to be clear and unmistakable, doesn't it? [00:01:38] Speaker 01: It does have to be clear and unmistakable. [00:01:39] Speaker 00: How can you say it's clear and unmistakable if it's a novel issue? [00:01:42] Speaker 01: Well, Your Honor, the standard for whether an error is clear and undisputable is not whether the district was action arose in a novel circumstance. [00:01:52] Speaker 04: So, for example, a number of... Does it make it difficult to call something undisputable when it does arise in a novel circumstance, though? [00:01:59] Speaker 04: Your Honor... I'm not saying it's impossible, but you have a pretty steep... No, you don't. [00:02:03] Speaker 04: You have a very steep hill to climb, don't you? [00:02:05] Speaker 01: Your Honor, that's certainly a factor that the Court should consider. [00:02:08] Speaker 01: But the principle that we're asking the Court to embrace is broader than the specific circumstances in which it arose. [00:02:15] Speaker 01: So we're asking the Court to acknowledge that there's a zone for prosecutorial discretion under the Speedy Trial Act that applies generally across a whole host of circumstances. [00:02:26] Speaker 04: If this statute expressly envisions a role for the Court, [00:02:32] Speaker 04: You're saying it's prosecutorial discretion, but yet it has to be with the court's approval before you get the exemption from the Speedy Trial Act. [00:02:43] Speaker 04: How can you say it's within the prosecutor's discretion if it has to have judicial approval? [00:02:49] Speaker 01: Well, Your Honor, what we believe happened when Congress enacted Section 3161H2 is that it incorporated fundamental constitutional separation of powers principles that have been applied across a whole host of contexts. [00:03:05] Speaker 01: So, for example, under Rule 48... Wait a minute, you're avoiding the question. [00:03:10] Speaker 00: The statute specifically provides that the court must approve. [00:03:15] Speaker 00: And so what is the factors the court is supposed to take into account? [00:03:21] Speaker 00: I looked at your brief and all you said was that the court should consider whether or not the parties are evading the Speedy Trial Act. [00:03:32] Speaker 00: Well, they're always evading the Speedy Trial Act when they sign such an agreement. [00:03:35] Speaker 00: I don't understand. [00:03:37] Speaker 01: Well, Your Honor, the factors that the Court should take into account derive from two different sources. [00:03:44] Speaker 01: The first, I would point the Court to Judge Easterbrook's opinion in the In re United States case from 2007, in which he said, prosecutorial discretion [00:03:54] Speaker 01: should be reviewed only to determine whether there's been a violation of the Constitution or some other source of positive law. [00:04:01] Speaker 01: So that's point number one. [00:04:03] Speaker 01: Point number two, to your point, we understand the evasion of the limits of the Speedy Trial Act prong to speak more of whether the parties are kicking the can down the road. [00:04:15] Speaker 01: What does that mean? [00:04:15] Speaker 00: Well, suppose they are. [00:04:16] Speaker 00: They are kicking the can down the road. [00:04:18] Speaker 00: Go ahead, please. [00:04:20] Speaker 06: I mean, I guess I think what Judge Silverman is getting at, I think we're raising the same concern, is they necessarily are. [00:04:25] Speaker 06: Every time you ask for a court of approval in one of these situations, you're necessarily trying to evade, so to speak, the speedy trial clock because you're trying to suspend the clock. [00:04:34] Speaker 06: So maybe one way to ask the question is what's an example of a situation in which the court could disapprove based on evasion? [00:04:42] Speaker 01: One example would be if the record makes abundantly clear that the parties were entering into the agreement in order to restart a trial some time down the road. [00:04:51] Speaker 01: And so if it was clear, just based on the record or the evidence that was put before the court, that the parties did not actually intend to enter into the agreement in order to allow the defendant to demonstrate its good conduct. [00:05:04] Speaker 06: And why, you're envisioning a situation in which both parties actually would collude to want to delay the trial date because [00:05:12] Speaker 06: What's the scenario in which that might arise? [00:05:14] Speaker 01: Well, Your Honor, certainly we don't believe that this is something that would happen very often, if at all. [00:05:20] Speaker 01: But it's not uncommon for Congress to put in fail-safes of this type of nature. [00:05:25] Speaker 01: So, for example, under Rule 48, the government may only dismiss an information or indictment with leave of the court. [00:05:32] Speaker 01: And that's a provision that has been interpreted in light of the government's historic role in prosecutorial discretion. [00:05:38] Speaker 01: And there are only certain limited circumstances in which a district court may deny a government, especially a joint motion, in order to dismiss an information or indictment. [00:05:48] Speaker 01: And so the same type of logic applies here. [00:05:50] Speaker 01: Certainly the district court's role is limited. [00:05:52] Speaker 01: It's an important but limited one. [00:05:54] Speaker 01: And so the fact that that scenario that I've posed would not arise very often, I don't think that's something that... We're still trying to figure out what's the archetype of the situation that the court should disapprove. [00:06:08] Speaker 00: Well, give us an example again. [00:06:11] Speaker 01: So, Your Honor, it's the example that I gave to Judge Srinivasan just a few moments ago. [00:06:16] Speaker 01: I'm not sure I understood that example. [00:06:19] Speaker 00: Explain it to me. [00:06:20] Speaker 01: So if the two parties were to enter into an agreement where it was clear on the face of the agreement and based on the materials that are before the district court that the parties intended to restart litigation at some point in the future rather than [00:06:34] Speaker 01: enter into the agreement in order to allow the defendant to demonstrate its good conduct. [00:06:39] Speaker 00: In other words, if it was just for the convenience of the lawyers who were going on holiday. [00:06:42] Speaker 01: Correct. [00:06:43] Speaker 00: That's your stereotype. [00:06:46] Speaker 01: That's correct as to that part of the test for what the district court may review. [00:06:52] Speaker 06: Now suppose in that situation you'd still have an agreement that hypothesizes certain conditions that the defendant would have to satisfy, right? [00:07:01] Speaker 06: So the court would be presented with an agreement that says the defendant has to do X, Y, and Z in order to benefit from this DPA. [00:07:11] Speaker 06: And then the court's looking at that and they're thinking, well, these are actually bona fide conditions. [00:07:15] Speaker 01: Your Honor, that's correct. [00:07:17] Speaker 01: And that's why we do believe that under this prong, the court's review would be deferential, and the court would assume that the prosecutors had acted regularly, as the Supreme Court said in, you know, Hartman v. Moore and like cases. [00:07:31] Speaker 01: Now, there is the other prong, such as there is the other prong, the prong that arises from Judge Easterbrook's opinion in the United States, which is not a speedy trial act case. [00:07:40] Speaker 01: But nevertheless, it encapsulates some of the factors that courts have looked into in the review of prosecution. [00:07:45] Speaker 06: So before we go to the other problem, which I take it is illegal for some other reason. [00:07:49] Speaker 06: Correct. [00:07:50] Speaker 06: On this one, so if the purpose is to make sure that under the words of the statute in your view, it's for the purpose of allowing the defendant to demonstrate his good conduct. [00:07:58] Speaker 06: So suppose the parties come together and say, here's my six conditions that the defendant has to meet. [00:08:04] Speaker 06: And then the district judge looks at it and says, [00:08:07] Speaker 06: I actually don't think those conditions suffice, because it doesn't really show good behavior. [00:08:11] Speaker 06: I mean, those are really lenient conditions. [00:08:13] Speaker 06: I'm not saying that you have to bring different charges. [00:08:15] Speaker 06: I'm not saying that you have to actually pursue a prosecution to the full extent at all. [00:08:19] Speaker 06: I'm not saying that you need to pursue a particular sentence. [00:08:21] Speaker 06: I'm just talking about these particular conditions. [00:08:23] Speaker 06: And I think these conditions are just sort of an edict. [00:08:25] Speaker 06: So you need to go back to the drawing board and come up with something that, in fact, is designed to allow the defendant to demonstrate his good conduct, because this only shows mediocre conduct. [00:08:33] Speaker 06: Is that something that you think is within the purview of the statute? [00:08:36] Speaker 01: Your honor, I see that my time is up. [00:08:39] Speaker 01: Your honor, so I think it would depend from case to case. [00:08:45] Speaker 01: So I hesitate to give you a broad rule that would encompass all such cases. [00:08:49] Speaker 06: But you think that at least it's possible that the court could do that. [00:08:53] Speaker 01: Well, your honor. [00:08:54] Speaker 04: Be careful how you reject that, counsel. [00:08:56] Speaker 04: I don't see that as a hostile question. [00:08:58] Speaker 04: Are you sure he's not posing something that you want here? [00:09:02] Speaker 01: Your Honor, I think that it would be viewed through the lens of Hartman v. Moore and like cases. [00:09:08] Speaker 01: It would be viewed through the lens of a presumption of prosecutorial regularity, and so there wouldn't be the kind of intrusive review that the district court did here. [00:09:18] Speaker 01: Furthermore, I mean, the second point that I would just make is that there's no suggestion on the record in this case that anything of that nature, any inference of that nature was drawn. [00:09:26] Speaker 01: Rather, the district court rejected the deferred prosecution agreement on the ground that it was too lenient to the [00:09:32] Speaker 06: Well, there were at least some comments that related to the conditions. [00:09:36] Speaker 06: I think one of them had to do with independent monitoring. [00:09:39] Speaker 06: So that at least, you can envision a scenario in which that was the only basis for rejecting the, I understand that there were other things that were said. [00:09:47] Speaker 06: But if you have a comment that goes only to the sufficiency of a condition to show good behavior, that gets closer to the hypothetical that I was giving you. [00:09:58] Speaker 04: Your Honor, I suppose it gets closer, but on this record, with this opinion, I just... Do you understand that what we are trying to do is to define a circumstance under which the statute would apply if it doesn't apply on the one before it? [00:10:12] Speaker 04: the hypothesis that the presiding judge suggests gives us a situation in which it might apply. [00:10:18] Speaker 04: Are you really sure you want to be rejecting that? [00:10:21] Speaker 04: Shouldn't you be embracing that? [00:10:22] Speaker 01: No, that's correct, Your Honor. [00:10:24] Speaker 01: And so just to go back to what I said at the very beginning, there could be facts under which such a situation would arise. [00:10:32] Speaker 01: And so I'm not saying that there would be a per se rule that you could not make such an inference. [00:10:36] Speaker 01: However, I think on the record in this case, such an inference is [00:10:40] Speaker 01: it would not be permissible and was not in fact wrong by the district judge. [00:10:45] Speaker 00: So your answer to the presiding judge's question is under his hypothetical a district judge could refuse to approve. [00:10:55] Speaker 00: Yes or no? [00:10:57] Speaker 01: Yes, Your Honor, and if I may just elaborate a little bit, I'm envisioning a circumstance in which, you know, a one-page deferred prosecution agreement is filed with the court that just says, we defer prosecution and perhaps list one or two additional sentences, et cetera. [00:11:14] Speaker 01: We expect the defendant to show that he's a good person within the next 18 months. [00:11:19] Speaker 01: Conceivably, under those circumstances, there would be scope for district court review, but that's a very different case. [00:11:27] Speaker 06: I guess the question would be that there's some things that you could say are just outside the statute because the considerations that were taken into account by the district judge are just not ones that the statute envisions. [00:11:38] Speaker 06: You could also say that although these types of considerations are ones that the statute envisions, it's just an abuse of discretion in these circumstances to fail to give effect to the DPA. [00:11:47] Speaker 06: So if you thought the line was, I'm not saying it is, I mean you might think it's more restrictive than this, but if you thought that the line was between [00:11:55] Speaker 06: scrutiny of the conditions to show good behavior versus scrutiny about what charges might or might not have been brought. [00:12:01] Speaker 06: And you could say that, well, as long as it's about the conditions, it's within the statute. [00:12:06] Speaker 06: But there's going to be a very limited scope of review even as to those conditions. [00:12:10] Speaker 06: And anything beyond what some of the opinions you've cited in your briefing presupposes would forge into abusive discretion territory. [00:12:19] Speaker 06: At least that's one possible way to look at it. [00:12:21] Speaker 06: I suppose. [00:12:22] Speaker 01: Your Honor, if I'm understanding you correctly, I think that's the way that we've articulated the test in this case. [00:12:27] Speaker 01: And what we would like to say is that, as an initial matter, it's legal error for the district court to determine that the terms and conditions in a deferred prosecution agreement are too lenient to the defendant, particularly when there's no showing that there's absolutely nothing in the record that would indicate that the deferred prosecution agreement was somehow intended to evade the limits of the Speedy Trial Act. [00:12:51] Speaker 01: But even if one were to assume that the district court had some sort of role in assessing the terms, I think that's what you were suggesting in your question, even if they have some sort of role to address the terms of an agreement, the district court went well beyond that in this case by suggesting that the government should have prosecuted individual corporate officers. [00:13:12] Speaker 01: The government abused its prosecutorial discretion. [00:13:15] Speaker 01: Statements of that nature, that is something that's beyond what the district court could have done. [00:13:20] Speaker 01: And finally, you know, we would suggest that the district court went beyond the scope of the charges in this case for some of the reasons that we suggest in our reply brief where the district court just made certain assumptions about the government's legal positions that are not reflected in the record. [00:13:42] Speaker 01: Thank you, Your Honor. [00:13:52] Speaker 03: Morning, may it please the court, Edward O'Callaghan for FACA Services BV. [00:13:57] Speaker 03: Your honors, to just take up the jurisdiction point that your honors were inquiring of government counsel, it is mandamus jurisdiction that provides this court with the strongest jurisdiction to review the district court's order. [00:14:14] Speaker 03: If one looks at the standards from the recent Callaghan and Brood case, the KBR case, [00:14:20] Speaker 03: mandamus is appropriate where relief from the final judgment is not adequate. [00:14:27] Speaker 03: Here that would be the case here. [00:14:29] Speaker 04: We did reiterate in Kelly Brown and Ruth that it has to be undisputable or the clear and undisputable entitlement to the relief prayed in the mandamus. [00:14:42] Speaker 04: Is it here clear and indisputable that the judge could not [00:14:48] Speaker 04: Take away from you the exclusion from the Speedy Trail Act. [00:14:52] Speaker 03: Yes, Your Honor, it is. [00:14:53] Speaker 03: And it's novel, but it's also clear and undisputable. [00:14:57] Speaker 03: And if you look at the language of the KBR case, they found in KBR that a legal error is clear and undisputable if it would have a broad and destabilizing effect in an important area of the law. [00:15:11] Speaker 03: And there's no question around here that this ruling has such an effect on an important area of the law. [00:15:17] Speaker 00: Indeed, it goes to the heart of the separation of powers and the executive branch exercising its prosecutorial... What about the argument that the case could come up to us ultimately if we did not take a public jurisdiction now? [00:15:35] Speaker 03: Yes, Your Honor. [00:15:36] Speaker 03: There are serious and irreparable harm consequences for FOCA services if this interlocutory appeal is not granted now. [00:15:45] Speaker 03: And those are manyfold. [00:15:47] Speaker 03: First and foremost, everyone, there's a lot of discussion about the Deferred Prosecution Agreement. [00:15:52] Speaker 03: But what there hasn't been in this discussion is that there is a pending charge and information in the district court that was only filed as a part of FOCA Services' reliance on the agreement with the United States government that it would have finality and certainty after an 18-month term of deferral. [00:16:09] Speaker 03: That information not only is filed, but as the record demonstrates, FOCA Services has admitted to that information the facts and circumstances surrounding that information. [00:16:20] Speaker 03: and it has suffered reputational harm already. [00:16:23] Speaker 03: The only reason that FACA Services chose to do that, Your Honors, is because they had the finality and certainty of a DPA agreement with the United States government. [00:16:32] Speaker 04: It has not yet been approved by the Court. [00:16:34] Speaker 03: Your Honor, the period of deferral had to be approved by the court. [00:16:38] Speaker 03: And that is looking at if there's any indicia of the party's motion before the court for exclusion of time in the Speedy Trial Act to see whether the DPA, the agreement that actually the court should rely upon to enter an order deferring time is illegal and unconstitutional. [00:16:56] Speaker 04: It's pursuant to written agreement with the defendant with the approval of the court. [00:16:59] Speaker 04: Correct, Your Honor. [00:17:00] Speaker 04: You read a lot more into the statute than is evident from just the words of the statute. [00:17:06] Speaker 04: Right. [00:17:06] Speaker 03: But if you look at the legislative history of the Senate, it's attached to our reply brief. [00:17:16] Speaker 00: I'm still trying to figure out why it's irreparable at this time. [00:17:19] Speaker 00: OK. [00:17:20] Speaker 00: You've entered in. [00:17:21] Speaker 00: There's an information. [00:17:22] Speaker 00: You've admitted to it because of the DPA. [00:17:25] Speaker 00: Right. [00:17:26] Speaker 00: OK. [00:17:26] Speaker 00: So we say we don't have jurisdiction now. [00:17:28] Speaker 00: What happens? [00:17:29] Speaker 03: So, right now, we go back, if you don't have jurisdiction, we go back to the district court, the information file, the uncertainty of what happens with the DPA. [00:17:39] Speaker 03: Certainly, Parker Services continues to suffer harm while that information is pending. [00:17:44] Speaker 03: And your Honor... Wait, wait. [00:17:45] Speaker 00: Suffer the harm? [00:17:46] Speaker 00: You're not going to... Why is there going to be any increased harm? [00:17:50] Speaker 00: You've admitted to the information. [00:17:52] Speaker 00: You don't have to admit every day. [00:17:54] Speaker 03: We've lost the protection of the DPA. [00:17:57] Speaker 00: I'm still trying to figure out why you've lost the protection of the DPA. [00:18:03] Speaker 00: What risk do you now run? [00:18:06] Speaker 03: Because if the DPA is not in place and the Speedy Trial Act is not excluded, the government has to make the choice of going forward with the prosecution against FACA services or some other choice. [00:18:18] Speaker 06: But keeping on that choice... I'm not quite sure I follow because even under your view, there's at least some room for the district court to disapprove. [00:18:26] Speaker 03: There is room for the district court to disapprove? [00:18:29] Speaker 06: Yeah. [00:18:30] Speaker 03: There has to be some room. [00:18:31] Speaker 06: I mean, the statute means something, so there must be some. [00:18:34] Speaker 03: Absolutely right. [00:18:34] Speaker 06: So if that's true, then there's always the risk. [00:18:37] Speaker 06: Whenever you ask for a DPA, a defendant and the government going together and ask for a DPA, and there may be an information, there's always some risk that it may be disapproved. [00:18:48] Speaker 03: so there is your honor but if you look at if you look at uh... one of the statutory tax i'm sorry the legislative history and what what what authority is actually given to the district court in this circumstance it's actually to review the party's agreement what the agreement is uh... doesn't spell out what agreement but the agreement is to divert i get that but i guess i what i'm saying is you're making it sound like there's a difference in kind when it seems like it's a difference in degree we're talking about degrees of risk of course you enter into an information that [00:19:17] Speaker 06: admit certain things, but there's always some risk that the court is not going to approve of the deal. [00:19:24] Speaker 03: And then you've already done that. [00:19:26] Speaker 03: It's never happened before, Judge. [00:19:27] Speaker 03: It actually has never happened before. [00:19:29] Speaker 03: And that's part of the calculation that the company makes and other companies make. [00:19:33] Speaker 00: I'm still trying to figure out to follow through on your... Okay, so the result is the district judge has declined to approve it. [00:19:43] Speaker 00: So now, are you saying you now face an increased risk of prosecution? [00:19:50] Speaker 03: Your Honor, the defense of that prosecution has come incredibly more difficult. [00:19:56] Speaker 00: Why? [00:19:57] Speaker 00: Because the party... Why isn't the government a stop from prosecuting at this point? [00:20:03] Speaker 00: Because they have a private agreement with you. [00:20:07] Speaker 03: We would certainly accept that, Your Honor, but one of the options would be for them to proceed with the prosecution with a factual statement that essentially admits the information charges. [00:20:18] Speaker 00: And the reason why... Isn't that an illusion after the government has agreed? [00:20:24] Speaker 00: I don't see why that's a real risk. [00:20:27] Speaker 03: Okay, Your Honor. [00:20:28] Speaker 03: As counsel for the company, I just am looking at the possibilities and trying a case to defend when I have a factual statement that's in the record of the things that the company admitted to. [00:20:40] Speaker 00: Suppose the government said, well, in light of the appellate court concluding it doesn't have jurisdiction at this time, we're going to let the Speedy Trial Act, we're going to let the time expire and the district judge would dismiss and then we'll appeal at that point. [00:20:55] Speaker 03: Yes, Your Honor. [00:20:56] Speaker 00: You have zero risk, right? [00:20:58] Speaker 03: No, I think there is still risk on that. [00:20:59] Speaker 03: What's the risk? [00:21:00] Speaker 03: One of the risks is actually if the government still would have to move to dismiss the information, the speedy trial act would run. [00:21:09] Speaker 03: They'd have to actually make a motion to... Or you could make the motion. [00:21:12] Speaker 03: I could make the motion, exactly, Your Honor. [00:21:14] Speaker 03: But that's not the agreement that the parties reached. [00:21:16] Speaker 03: The parties reached the agreement that the information would be dismissed after an 80-month term. [00:21:20] Speaker 04: We understand that we're not talking about what the risks are generated from the judge not approving that agreement. [00:21:26] Speaker 03: Yeah, but, Your Honor, it is, I respectfully disagree, it is a risk that exists for the company if that information. [00:21:33] Speaker 00: You mean the government could change its mind and then decide to prosecute you. [00:21:37] Speaker 03: Exactly. [00:21:38] Speaker 03: That is enough. [00:21:40] Speaker 00: The second piece of the harm I do want to hit on just quickly is that... You might have a new attorney general who would conclude that fines against corporations are inadequate. [00:21:50] Speaker 00: You have to prosecute individuals. [00:21:53] Speaker 00: You could have that hypothetical. [00:21:56] Speaker 03: You could have that hypothetical or prosecutions against corporate defendants as well, Your Honor. [00:22:01] Speaker 00: That's what I meant, yeah. [00:22:04] Speaker 03: Just one point on the duration, the 18-month term. [00:22:07] Speaker 03: That is a key facet of the agreement between the parties and certainly for the company. [00:22:12] Speaker 03: And so that goes also to the point of the necessity for an interlocutory appeal. [00:22:18] Speaker 03: The 18-month term of the deferral period [00:22:20] Speaker 03: was a key consideration for the company because he gave it the finality. [00:22:25] Speaker 04: That interlocutory appeal argument is a bit frightening in the breadth of precedent. [00:22:34] Speaker 04: The general precedent is that even a claim of immunity is not subject to interlocutory appeal unless it's based on a double jeopardy or an absolute immunity. [00:22:43] Speaker 04: So if we were to hold that this can be brought by interlocutory appeal, are we opening ourselves up to claims of interlocutory review for all sorts of other quasi-merit defenses that are based on time or something similar? [00:23:00] Speaker 04: uh... i don't believe you are your honor uh... uh... because of what was supposed to be a representing police officer who's uh... charged with a nineteen eighty three valid and he said well are we sued in the nineteen eighty three kids just be civil but anyhow uh... the claim is well i have immunity as a uh... public official and if you get to know it doesn't apply because i'd be free can you bring that up to us immediately i don't think they could you know i don't think any and i don't see why they can't and you can [00:23:30] Speaker 03: Your Honor, the circumstances of this case present the correct justification for an interlocutory appeal. [00:23:38] Speaker 03: I believe it's under the mandamus jurisdiction, but also under the collateral order jurisdiction, the collateral order jurisdiction under 28 U.S.C. [00:23:45] Speaker 03: 1291. [00:23:47] Speaker 03: The standards are met, as in the Cohen and the Midland cases, and particularly here with Midland, Your Honor, which focused on [00:23:57] Speaker 03: the right of the parties in the agreement being eviscerated by an order in a district court. [00:24:04] Speaker 03: And that is our fundamental argument, that the contractual right of FSBV was eviscerated by the court's order because it had a right to expect that the deferred prosecution period would be... It's not clear to me whether this issue is removed from the merits. [00:24:24] Speaker 00: I'm a little confused about that. [00:24:25] Speaker 00: What are you talking about is the merits? [00:24:26] Speaker 00: The merits is a prosecution? [00:24:28] Speaker 03: The merits of a prosecution are actually a factual statement that's already been admitted to. [00:24:32] Speaker 00: And so the merits of a... You understand what my... I'm not sure this issue is distinguished from the merits. [00:24:39] Speaker 00: This issue is the merits, isn't it? [00:24:41] Speaker 03: It's not the merits, Your Honor. [00:24:42] Speaker 03: The merits of the case are the information, not the prosecution agreement. [00:24:46] Speaker 00: Any of them, I agree with your proposition that the better case is mandamus. [00:24:50] Speaker 03: Mandamus. [00:24:52] Speaker 00: I appreciate your candor. [00:24:56] Speaker 03: Thank you, Judge. [00:24:57] Speaker 03: I'm way over. [00:24:57] Speaker 03: I just want to make one point on the reassignment point to a different district court judge. [00:25:05] Speaker 03: Your Honor, Your Honors, we don't make this motion lightly. [00:25:09] Speaker 03: However, in this circumstance, and particularly given the representation of the government council, both in its briefing and here today, that the district court judge amplified the charges and amplified [00:25:22] Speaker 03: uh... the case in stock services in its deliberation uh... in the very brief frankly uh... uh... what is your list what is your list what is your risk if you prevail here what's left to do yeah that's what i did well from the same way that that's right but we have to go back to the district court uh... uh... well i would assume would enter whatever or or this this court directed to however we still need to get that information dismissed and a motion to have to dismiss the information has to be brought [00:25:49] Speaker 03: Now, clearly, that's a prosecutorial discretion. [00:25:53] Speaker 03: That's easy to get around. [00:25:55] Speaker 03: Well, Your Honor, I would normally say that. [00:25:58] Speaker 04: The judge says go to trial, and the U.S. [00:26:00] Speaker 04: Attorney stands up and says we rest. [00:26:03] Speaker 03: uh... uh... that's that's exactly right uh... but however uh... you know given the record that we have here uh... and and the standard again from the microsoft case uh... where it is uh... appearance of bias uh... uh... from uh... from the district well that's an example uh... that's an extreme stretch of an analogy there but in the microsoft case [00:26:25] Speaker 00: actually which i wrote the uh... the problem was the district judge relied on material outside the record to show bias uh... you don't have anything like that here [00:26:34] Speaker 03: uh... your honor uh... from from my reading of of the microsoft cases a lot more than than than that that was uh... that was a team that was a team fact um... there is that there is no evidence in this record of the district court relying on anything from outside the record that's not for however he did uh... in interject uh... into uh... this this record material from outside uh... uh... and actually he he did that to question the representations of government council without any basis [00:27:03] Speaker 03: that there was a voluntary self-disclosure made in this case and ordered the government counsel to do a sweeping three and a half month long investigation of something that they had already investigated and concluded after four years of investigation and that's whether this was a voluntary self-disclosure. [00:27:18] Speaker 03: There's no basis for the district court to do that other than the fact that the district court had already reached the conclusion that there were problems with this DPA. [00:27:26] Speaker 03: and he wasn't going to approve it. [00:27:27] Speaker 03: And we just think the appearance of bias from the record, which admittedly is a very short record, but I think that increases the stark references that the district court made, justifies reassignment on BMA. [00:27:40] Speaker 03: Thank you, Your Honors. [00:27:41] Speaker 03: Thanks. [00:27:54] Speaker 05: This Court lacks jurisdiction over the interlocutory appeals, and the parties have not demonstrated a clear and undisputable error that would warrant mandamus relief in this case. [00:28:04] Speaker 05: So, in view of the Court's comments that it believes mandamus is the more likely source of relief, I'll begin there. [00:28:09] Speaker 05: I don't think it's possible to look at the statute and look at the District Court's decision and say that there's a clear and undisputable error. [00:28:15] Speaker 05: The parties contend that there's a catechorical bar on the district court's consideration of whether DPA is too lenient. [00:28:21] Speaker 05: But that catechorical bar does not appear anywhere in the statute, which merely talks about judicial approval. [00:28:26] Speaker 00: Suppose the district court in this case has said, I disapprove the DPA because I know this company and I've been reading about it, and they should get all hell released upon them. [00:28:39] Speaker 05: Yes, I think that would be an abuse of discretion and warrant mandamus relief. [00:28:42] Speaker 00: Why is that different? [00:28:44] Speaker 05: Well, I don't think the court is permitted to just rely on his understanding outside the record. [00:28:49] Speaker 00: No, no, he said on the record. [00:28:50] Speaker 00: He said, on the record, this is just a horrible company. [00:28:53] Speaker 00: This is just awful. [00:28:55] Speaker 00: And I won't approve anything unless everybody goes to jail. [00:28:59] Speaker 05: Well, first, I think that might be a reverse player because I think the court has an obligation to give a clear and reasoned explanation for what he's doing. [00:29:06] Speaker 05: And so I simply think that looking at it and saying, you know, that's it, I'm just going to say no without giving a coherent explanation considering all the factors, that probably would be an abusive discretion, counter to basic traditional norms. [00:29:16] Speaker 00: What about a loud jurisdiction? [00:29:19] Speaker 00: What about a loud jurisdiction in the appellate court? [00:29:21] Speaker 05: I don't think that there would be jurisdiction in the collateral order doctrine. [00:29:24] Speaker 00: I think... No, I'll mandamus. [00:29:25] Speaker 05: Yes, potentially, because I think it's clear and undisputable that a district court has to at least exercise this question rationally and consider the fact that... So if the district judge is irrational, arbitrary and capricious, there would be appellate jurisdiction. [00:29:39] Speaker 05: I think that there would be mandamus jurisdiction. [00:29:41] Speaker 00: Yes. [00:29:41] Speaker 00: Yeah, mandamus jurisdiction. [00:29:43] Speaker 05: Yes, I think it's clear and undisputable that a district court that acts irrationally, that just looks and... Just unreasonably. [00:29:49] Speaker 05: Well, I think it would have to be an extraordinary... Unreasonably is arbitrary and capricious. [00:29:53] Speaker 05: I think it would have to be sort of unreasonably unreasonable, because I think... Unreasonably unreasonable. [00:29:56] Speaker 05: You know, there's sort of a double deference standard here, because we think that the ordinary standard of review here is abuse of discretion, right? [00:30:03] Speaker 05: We think that even if there was jurisdiction under the collateral order doctrine... [00:30:06] Speaker 04: The standard of review here is the one you've already been stating, the clear and unmistakable. [00:30:11] Speaker 04: Right. [00:30:11] Speaker 04: That is true. [00:30:12] Speaker 04: Indisputable. [00:30:13] Speaker 05: But even sort of the baseline rule, even if there was appellate jurisdiction, there would be a certain degree of deference. [00:30:19] Speaker 05: There would be abuse of discretion to review. [00:30:21] Speaker 05: So I think it would have to be clear and undisputable that the district court abused its discretion, which is an extraordinarily deferential standard. [00:30:27] Speaker 06: Are you aware of any other case in the past in which a district court has denied a deferred prosecution agreement? [00:30:34] Speaker 06: based on leniency considerations, not about the conditions to show good behavior, but leniency considerations to the effect that the government should have brought more serious charges against particular entities, and this is too lenient in that sense. [00:30:49] Speaker 05: I'm not aware, Your Honor. [00:30:50] Speaker 05: DPAs are actually pretty uncommon. [00:30:51] Speaker 05: I think that, you know, [00:30:53] Speaker 05: There was something like 100 brought during like a 20-year stretch. [00:30:56] Speaker 05: I forget the exact statistics. [00:30:57] Speaker 05: We quote them in the brief. [00:30:58] Speaker 05: They're a little bit more common now, but these issues haven't reached the appellate courts at all. [00:31:02] Speaker 05: The parties are relying on a couple of unpublished district court opinions on some unclear records. [00:31:06] Speaker 05: So this is just an unusual circumstance either way. [00:31:08] Speaker 05: So it's not like the parties could have relied on a large flood of decisions, rubber-stamping DPAs, and suddenly the district court said no. [00:31:15] Speaker 05: I think this is sort of a new issue that hasn't really arisen before. [00:31:18] Speaker 04: It's just a small matter of semantics, but it may not try to be too small. [00:31:22] Speaker 04: You are using the terminology the district court is barred from considering. [00:31:27] Speaker 04: Rather than that, isn't the question whether the district court is empowered to consider. [00:31:32] Speaker 04: Well, the statute empowers the district judge to do something with the approval of the court. [00:31:44] Speaker 04: Court can only do whatever that statute empowers it to do. [00:31:47] Speaker 04: Rather than saying, well, the court has power and something bars it, we have to look to the statute to see what it has the power to do. [00:31:53] Speaker 04: I understand that semantics, but... [00:31:56] Speaker 04: could be important. [00:31:57] Speaker 05: I take your Honor's point, but I think that when you read the statute, it does say judicial approval, and it doesn't really specify specific criteria in exercising that approval. [00:32:04] Speaker 04: But very plainly, it would not open the entire world to the district judge to use as grounds for approving the agreement. [00:32:12] Speaker 04: So the authority granted to the judge is limited in some fashion. [00:32:16] Speaker 04: Why should we construe the authority as being as broad as you want it to be? [00:32:22] Speaker 04: That is to say that he can do it based on the [00:32:25] Speaker 04: apparently leniency of the charges against the defendant. [00:32:29] Speaker 05: Well, I think that there are many statutes out there that confer discretion on a district court without specifying this. [00:32:34] Speaker 04: But we're looking at one here. [00:32:36] Speaker 05: Yes, and I think that the ordinary standard review is that the judge has to act rationally and consider the relevant factors. [00:32:42] Speaker 05: If the judge said, you know, I don't grant deferred prosecutor's agreements on Thursdays or something, that would be completely irrational. [00:32:48] Speaker 05: It's true. [00:32:48] Speaker 05: The statute doesn't bar him from doing that. [00:32:50] Speaker 05: But the court has to exercise discretionary decision making in a rational way. [00:32:53] Speaker 05: But I think that there's a norm in the justice system that judges may consider the public interest, especially in criminal prosecutions and criminal sentences. [00:33:00] Speaker 04: You can't consider the public interest in just everything. [00:33:03] Speaker 04: There are some areas in which you can consider the public interest. [00:33:06] Speaker 04: There are others in which your consideration is limited. [00:33:11] Speaker 04: I don't know which one this is. [00:33:13] Speaker 05: Well, two points about that. [00:33:15] Speaker 05: First of all, if this is a mandamus case, I don't see how you can say that clearly and indisputable the district court was barred from doing that. [00:33:21] Speaker 04: That's a good answer. [00:33:22] Speaker 04: Not barred from, but wasn't empowered. [00:33:25] Speaker 05: Right. [00:33:26] Speaker 05: If the statute doesn't specify, especially in the context of the criminal justice system, judges do consider leniency in other contexts. [00:33:32] Speaker 05: We raised the example of plea bargains with sentence bargains and charge bargains. [00:33:36] Speaker 05: It is certainly the case that this isn't a plea case. [00:33:39] Speaker 05: We understand that here the district judge was [00:33:41] Speaker 05: denying a motion to exclude the time and not accepting a plea. [00:33:45] Speaker 05: It's a different kind of judicial act, but it's still a judicial act. [00:33:48] Speaker 05: The judge is still doing something. [00:33:50] Speaker 06: Could a judge say, this is a scenario in which a prosecution has to be brought? [00:33:57] Speaker 06: I'm not going to approve a deferred prosecution agreement at all, because it's in the public interest for this defendant to be tried and convicted. [00:34:05] Speaker 05: I think that's a difficult question, which of course is not present here, and the district judge did say that he would look at it. [00:34:11] Speaker 05: But do you think that's within the statute? [00:34:13] Speaker 05: I think that that's a close case. [00:34:14] Speaker 05: I probably think that that would be an abusive discretion, maybe not on my name but on a view of a final judgment because I think that the statute does seem to contemplate some room for the parties to agree to a DPA and for the district judge to just say absolutely not, no DPA. [00:34:28] Speaker 06: But that's just, I don't understand what's black and white about no DPA as opposed to a DPA with really, really, really strict conditions or [00:34:37] Speaker 06: boy, you have to do a lot more than this because this defendant is really a bad actor. [00:34:43] Speaker 06: And boy, I would have loved to have seen some really serious charges with a lot of present time potentially associated with it. [00:34:49] Speaker 05: Well, I mean, I know the court usually hates this answer, but it would depend on the specific facts of the case. [00:34:54] Speaker 05: I think that ordinarily a district judge is saying, you know, I don't like DPAs. [00:34:58] Speaker 05: I think they're a bad idea. [00:34:59] Speaker 05: I want to see more prosecutions and therefore no. [00:35:02] Speaker 06: yes i i i agree with you i i don't and i don't mean it's just a situation which is a blanket denial of the case because the judge is hostile to the case i'm saying that in this case i'm looking at the particulars of this case no dvd charges have to be brought this is in the public interest for the public to vindicate it's felt need to exact the interest of sentencing against this particular actor yeah i i i think that might potentially inappropriate facts not well why is that any different in this case [00:35:31] Speaker 05: Well, I'm agreeing with Your Honor. [00:35:32] Speaker 05: I think that in the appropriate case, I think... No, no, that's this case. [00:35:36] Speaker 05: Well, no, I think Judge Leon specifically said that he was willing to look at a different DPA with different conditions. [00:35:40] Speaker 05: I suspect that if the parties came back to him and said, you know, there's going to be an independent monitor, there's going to be a fine exceeding the revenues earned, the district court probably would look at it differently. [00:35:48] Speaker 06: So it's not clear to me this case... So you think the statutory language that says with the approval of the court means that the court can just say disapproval of a DPA's period in this case? [00:35:56] Speaker 05: Yes, I do think so, Your Honor. [00:35:59] Speaker 05: I think that in an extreme case, if there's a capital murder charge in the DPA, there's a DPA in which the person's not even going to be prosecuted at all and not going to be convicted, I think the court could say, look, the prosecutor has the discretion whether to bring charges or not, but I'm not going to approve exclusion of time and let this case stay on my docket for 18 months if the charges are going to be dropped. [00:36:18] Speaker 06: Why would we think that Congress wanted to give the district judge the authority to require the prosecution to bring a charge? [00:36:25] Speaker 05: I don't think that it's requiring the prosecution to bring a charge at all. [00:36:28] Speaker 05: The prosecutor can still drop the charge. [00:36:29] Speaker 05: I think that what it's saying is that I'm not going to allow my docket to be used as leverage for a resolution of the case that's so clearly outside of the public interest. [00:36:38] Speaker 05: It's not like the prosecutor has to then proceed with trial. [00:36:40] Speaker 05: The prosecutor can drop the charges. [00:36:42] Speaker 05: All the judge is saying is, you want me to use my docket for 18 months as leverage over this defendant, and that particular exercise of the judicial power that you're asking me to exercise, I'm going to say no. [00:36:53] Speaker 05: And I don't think that that's very different. [00:36:55] Speaker 04: He's basing that on a consideration that the treatment of this defendant is too lenient. [00:37:00] Speaker 04: That's correct, is it not? [00:37:02] Speaker 04: Yes, Your Honor. [00:37:03] Speaker 04: Isn't the consideration of leniency normally within the leniency in charging or in prosecution, normally within the executive authority of the United States rather than within the judicial authority? [00:37:16] Speaker 05: I don't think it's true in the decision whether to bring charges at all. [00:37:19] Speaker 05: Yes, but certainly in the context of plea agreements where there is an agreement between the government and the defendant, no, the court has a role. [00:37:26] Speaker 04: Yeah, but a plea agreement is possible, but of course that is very strictly spelled out. [00:37:31] Speaker 05: No, but even in an 11C1A agreement, even in a charge bargain, the district board has the authority to look at whether the charge bargain is too lenient. [00:37:41] Speaker 05: In fact, there's a policy statement I have here from the guidelines [00:37:44] Speaker 05: 6b1.2 that says the district court must look at charge bargains and make sure and determine whether they're too lenient in the public interest. [00:37:51] Speaker 00: And so I think the district judges in the plea context... In the charge bargain, doesn't the district court necessarily have a role? [00:37:59] Speaker 05: Yes, Your Honor, it does. [00:38:00] Speaker 00: What's the role? [00:38:02] Speaker 00: The role is to look at, among other things... No, but ultimately, what is the district judge's role? [00:38:07] Speaker 00: What does the district judge have to do? [00:38:09] Speaker 05: Accepts the plea bargain. [00:38:10] Speaker 00: And do what? [00:38:11] Speaker 05: and ultimately it imposes a sentence. [00:38:12] Speaker 00: Right. [00:38:13] Speaker 00: So there's no question the district judge has that role. [00:38:16] Speaker 05: Yes, Your Honor. [00:38:17] Speaker 05: It's true. [00:38:17] Speaker 00: It's true that... Which goes to the alleged leniency. [00:38:21] Speaker 05: Yes, Your Honor, but even in the context of accepting the charge bargain prior to imposing the sentence, the judge has to determine whether even the charge bargain is too lenient. [00:38:29] Speaker 00: And the judge does have a... But that's inherent in the sentencing role. [00:38:35] Speaker 05: I agree, Your Honor, and it's true that there's no sentence here. [00:38:38] Speaker 05: It's a different kind of judicial act. [00:38:40] Speaker 05: But it's still a judicial act, and so I don't understand the separation of powers problem with the judge exercising his judicial power under Article 3 to consider whether this is too lenient in an appropriately extreme case. [00:38:51] Speaker 00: Congress granted discretion to the judge under this particular statute to look at the DPA and, in fact, the Speedy Trial Act directs judges to consider the public interest in deciding whether... The public interest, of course, is in even if the parties agree to suspend, defer prosecution to avoid the Speedy Trial, the public has a role in, the public has an interest in Speedy Trials too, as well as the defendant. [00:39:19] Speaker 00: So that's why Congress puts that in, right? [00:39:23] Speaker 00: And the judge has a role in determining whether the parties are evading the interest in a prompt trial for frivolous reasons, for the convenience of counsel's holidays. [00:39:41] Speaker 05: I don't see how this statute can be construed as incorporating only that judicial role. [00:39:46] Speaker 05: I mean, one point is that there is a judicial approval requirement, and the government said, well, the purpose of that is to make sure the parties aren't just using the DPA as a pretext for continuance to evade the speed of trial act. [00:39:58] Speaker 05: But that is almost inconceivable that that would happen, because the DPA is binding. [00:40:02] Speaker 05: I mean, if the defendant lives up to it, then the charges are dropped. [00:40:06] Speaker 05: So if the government lawyer said, I'm going on vacation for a few weeks, and I want the trial to be delayed, [00:40:10] Speaker 05: couldn't do that with the DPA. [00:40:12] Speaker 00: Or also there's also the hypothetical that the DPA is almost sketchy, has nothing to do with the defendant showing cooperation. [00:40:29] Speaker 05: Well, first of all, I think that arguably in the facts of this case, there's at least, as Your Honor stated during the opening presentations, indications of that from the district court's comments. [00:40:38] Speaker 05: The comments about the independent monitor shows that the court was concerned that there was insufficient concern of actual compliance. [00:40:44] Speaker 05: So I do think that if the court concludes there's an abuse of discretion here and a clear and undisputable error, the court should remand it to the district court to consider under whatever legal standard that the court considers. [00:40:55] Speaker 05: But second of all, even setting that point aside, I don't really see the basis in the statute of just limiting the district court's authority so narrowly. [00:41:03] Speaker 05: Again, it says that the court can exclude time if there's prosecutions deferred for the purposes of assessing the defendant's good conduct with the approval of the court. [00:41:14] Speaker 05: And I don't think that the approval of the court by statute is limited considering that purpose. [00:41:18] Speaker 05: I don't think that it contains any statutory limitation. [00:41:21] Speaker 05: And so I think that just like the Rule 11 context, ultimately it boils down to whether the district judge rationally explains his reasoning and rationally exercises discretion. [00:41:30] Speaker 05: And considerations of the public interest, including leniency, I think are part of that, just like they're part of the Rule 11 context. [00:41:37] Speaker 00: And I certainly don't think that there's a clear and undisputable authority to show that the district court was not categorically not empowered to consider that consideration in deciding whether to... Do you have anything to say about council's articulation of the reasons why, if the mandamus is disapproved, that there's something short of chaos created? [00:42:02] Speaker 05: I don't think there's chaos. [00:42:03] Speaker 00: Something short of cash, but the argument was there's increased risk of all kinds. [00:42:10] Speaker 05: Well, first of all, counsel said that he was concerned because there's this information hanging over FSBV's head. [00:42:17] Speaker 05: That's true in every single criminal case. [00:42:18] Speaker 05: In fact, routinely, criminal defendants want to file interlocutory appeals of motions to dismiss indictments because they might have to spend years in prison if they're convicted until the court hears the appeal. [00:42:28] Speaker 05: But the court doesn't allow interlocutory appeals in that case. [00:42:32] Speaker 05: It seems to me that what FSBV is encountering here is significantly less than that. [00:42:36] Speaker 05: And so I mean, I think that the court [00:42:39] Speaker 00: What about the risk that the government would now prosecute? [00:42:43] Speaker 05: Well, that risk does exist, but if FSBV is right that the court should have accepted the DPA, then it can appeal from a final judgment of conviction, and then if the court's polls of the district court erred, it can go back and direct the district court to accept on remand. [00:42:58] Speaker 05: And that's what happens in plea context, actually. [00:42:59] Speaker 05: This court has exercised jurisdiction in a number of cases. [00:43:02] Speaker 00: where the court rejects a plea agreement, and then there's a trial, the defendant's convicted, and the court appeals... So basically your argument is the district judge in these kind of cases has as much discretion as a district judge would have in entertaining a plea agreement. [00:43:17] Speaker 00: That's basically your argument. [00:43:18] Speaker 05: I do think so, but even if the court disagrees with me and thinks there's less discretion, I don't think there's any room for a categorical rule that considerations of leniency are completely barred. [00:43:28] Speaker 05: And I think that for the reasons that are explained in the briefs, if there's any case in which a district court rationally exercises discretion to conclude that DPA is too lenient, it's this one. [00:43:36] Speaker 05: The facts of this case are absolutely egregious. [00:43:38] Speaker 05: There's over 1,000 sales to Iran. [00:43:41] Speaker 05: And that's clearly via the law. [00:43:43] Speaker 05: And I think that the district court appropriately recognizes that. [00:43:46] Speaker 00: Not anymore. [00:43:47] Speaker 05: Well, I do read the news like Your Honor does, but I don't think that there's any retroactive change in the laws. [00:43:53] Speaker 05: No, I'm changing. [00:43:54] Speaker 05: Anyone disputes that these are serious criminal conduct. [00:43:57] Speaker 05: Yeah. [00:43:58] Speaker 05: Kind of has no further questions. [00:44:00] Speaker 05: I ask the court to dismiss the appeals and deny the writ of mandamus. [00:44:04] Speaker 06: Thank you. [00:44:09] Speaker 06: Mr. Bromsey, I will give you two minutes. [00:44:13] Speaker 01: Thank you, Your Honor. [00:44:14] Speaker 01: I'd like to make two quick points on rebuttal. [00:44:16] Speaker 01: The first point goes to the clear and indisputable prong of the mandamus test. [00:44:21] Speaker 01: The key point here is that there's a broader principle about prosecutorial discretion that applies in a number of different contexts, including this Court's opinion in Microsoft, the in-reg United States opinions from the Seventh Circuit, [00:44:32] Speaker 01: in which the court granted mandamus and none of those could have, no writ could have issued in those cases if the court had focused more narrowly on the precise circumstances in which a case had arisen. [00:44:46] Speaker 01: The second point on this clear and indisputable prong is the approval of the court language. [00:44:51] Speaker 01: Just a few thoughts on that. [00:44:52] Speaker 01: The first is that there are no factors for the court to consider [00:44:56] Speaker 01: as to what would go into assessing a DPA for excessive leniency. [00:45:01] Speaker 01: It's highly unlikely that Congress would have intended this type of intrusive review for leniency without spelling out factors for a court to consider. [00:45:10] Speaker 00: Highly unlikely is not the same as clear and indiscriminable. [00:45:13] Speaker 01: Well, it is clear and indisputable when you compare the language here with the language in Rule 48, which says that the government can obtain dismissal with leave to the court. [00:45:22] Speaker 01: And in those instances, the court doesn't conduct some sort of leniency review before determining that the government can dismiss. [00:45:30] Speaker 06: Do you think there's a big distinction between approval and accept or reject? [00:45:35] Speaker 01: I'm not sure that there is such a big difference. [00:45:38] Speaker 06: Because that's the language of, I think, Rule 11, right, for please. [00:45:42] Speaker 01: That is the language for Rule 11. [00:45:44] Speaker 01: And so the point that I'm making, though, is that with respect to the approval language, to the extent there is any concern about the Court, if somewhat ambiguous, this Court has clear precedent in the Swift and Massachusetts School of Law cases in which the Court says that [00:46:01] Speaker 01: The presumption is that Congress did not intend to invade a zone of prosecutorial discretion, rather than the opposite. [00:46:08] Speaker 01: I see that my time is about to expire, but before it does, I'd just like to say, is there any other way that the court case could come before us? [00:46:15] Speaker 01: The way that the amicus is suggested here [00:46:17] Speaker 01: is that the government could wait for the Speedy Trial Clock to run an appeal from the court's dismissal of an action some point down the line and there's just simply no case that requires the government to go through that type of procedure. [00:46:31] Speaker 01: Cases that the amicus cites for this point, Kerrigan and Cinelli, they arise in very different circumstances. [00:46:37] Speaker 04: Are you talking now about your mandamus or your interlocutory reheat? [00:46:43] Speaker 01: Well, this would go to mandamus, your honor. [00:46:45] Speaker 01: It would go to both, perhaps. [00:46:47] Speaker 01: It would go to both. [00:46:49] Speaker 04: If we hold what you want on that, are we opening the door for interlocutory review every time a district court refuses exclusion of Petey Trowell for any reason? [00:47:01] Speaker 04: I don't think so, Your Honor, and the court can crack... It would seem, why would it not stand on the same footing, at least with respect to intellectual review, so far as being whether or not that's a separate issue from the merits and whether it's effectively reviewable after merits. [00:47:19] Speaker 04: Well, Your Honor, so to take... Why aren't we opening the door to everybody that wants to have a speedy trial fight if they can intellectually review this? [00:47:29] Speaker 01: Your Honor, so I don't think the court is. [00:47:33] Speaker 04: Never mind what you think the court is. [00:47:34] Speaker 04: Tell me why that wouldn't be precedent for anybody that wanted to do it. [00:47:38] Speaker 01: With respect to mandamus, the issue... Let's do an introductory review first. [00:47:42] Speaker 01: With respect to introductory review, one of the prongs of the test is whether the court below has resolved an important question that's separate from marriage. [00:47:50] Speaker 04: Right, and the important question has to do with the speed of trial. [00:47:53] Speaker 01: Well, the important question that is at stake over here is whether a district court can review the terms of the DPA for... In the context of whether or not to allow or whether to allow exclusions of the speedy trial act. [00:48:06] Speaker 01: That's true, Your Honor. [00:48:07] Speaker 04: If it weren't for the speedy trial act, we wouldn't have this issue. [00:48:11] Speaker 04: The important issue here has to do with an exclusion of the speedy trial act. [00:48:16] Speaker 04: That's true, Your Honor, but I believe that... Why wouldn't we be opening the, or allowing a precedent that would open the door to everybody that had a speedy trial file who wanted an interlocutory review? [00:48:27] Speaker 01: So the answer is that the Supreme Court has said that the legal issue has to be posed at the right level of generality and has to be important. [00:48:36] Speaker 01: And the legal issue that we've presented to the Court at the right level of generality is whether the district court can review for excessive leniency. [00:48:43] Speaker 01: And we submit that's important. [00:48:45] Speaker 04: In the context of the speedy trial. [00:48:46] Speaker 01: Correct. [00:48:47] Speaker 01: But that would not necessarily extend to other disputes under the Speedy Trial Act, which relate to other issues. [00:48:52] Speaker 01: They might not be important when expressed at the right level of generality. [00:48:56] Speaker 06: I mean, even under that, I take the point, but even under that approach, it's a little bit artificial, I think, to define the category, or at least arguably artificial, to define the category as one that will allow an appeal in this case. [00:49:09] Speaker 06: But then in the next case that comes down the pie court, a district judge exercises the approval authority [00:49:14] Speaker 06: to say that, well, that last decision already decided the general question. [00:49:17] Speaker 06: And so here we're only dealing with a particular question, and there is no interlocutory review, because it's still the same category, which is to say the exercise of approval or disapproval authority under the statute. [00:49:26] Speaker 01: Well, Your Honor, I think ultimately it does come down to the importance of the question as posed at the right level of generality. [00:49:34] Speaker 01: And we're submitting the question that's presented here is an important one. [00:49:38] Speaker 01: But to the extent that the court disagrees with us in the collateral order doctrine, there is mandamus review. [00:49:42] Speaker 01: And mandamus review is the type of relief that can be issued for a particular case to resolve a particular problem. [00:49:51] Speaker 01: And so, for example, in the Keller Brown and Root case, [00:49:55] Speaker 04: case arose in a discovery dispute context, but the court didn't suggest by taking... It had to do with the disclosure of immunity, breach of the immunity of a client attorney conference of that information. [00:50:11] Speaker 04: And if you once release that information, the harm's done. [00:50:16] Speaker 04: You can't cram it back into the privilege. [00:50:18] Speaker 04: The claim was whether this [00:50:20] Speaker 04: privilege had been waived already. [00:50:23] Speaker 04: So it came up on a very discreet question of whether you can force disclosure of attorney-pilot information and then come back and get it some other time. [00:50:34] Speaker 04: You can't do it. [00:50:35] Speaker 04: There's really no parallel in the KBR case in this one. [00:50:40] Speaker 01: Well, Your Honor, I agree that it arose in different circumstances with respect to a discovery dispute. [00:50:45] Speaker 01: I was merely, I was citing it for the proposition that by exercising mandamus jurisdiction in that case, the court was not suggesting that every discovery dispute would... I don't really see any way in which KBR has anything to do with this. [00:51:00] Speaker 04: Well, Your Honor... We know that there are some cases in which mandamus will lie and some which will not lie. [00:51:06] Speaker 04: KBR it did lie, but KBR has nothing in common with this case. [00:51:10] Speaker 01: Well, Your Honor, if I may make one last point with respect to KBR. [00:51:14] Speaker 01: One issue here goes to the adequacy of the alternative avenues for relief that the government might have. [00:51:21] Speaker 04: Yeah, and that's where I started on this. [00:51:23] Speaker 04: That had to do with the release, the compelled release of attorney-client communication. [00:51:28] Speaker 04: So once that's done, it obviously can't be remedied. [00:51:32] Speaker 04: You've already breached the privilege at that point. [00:51:33] Speaker 04: The information's been spread abroad. [00:51:37] Speaker 04: This one does not have anything comparable to that. [00:51:39] Speaker 01: Well, Your Honor, if you look at KBR, one of the points that it makes... I looked at KBR from this vantage point. [00:51:47] Speaker 01: I'm sorry, Your Honor, that was verbal failure. [00:51:52] Speaker 01: The KBR decision on this point does point out at one point that... [00:51:57] Speaker 01: You know, one alternative that could be considered was whether the party would have to defy the court's ruling and then enter into contempt and take an appeal from that. [00:52:05] Speaker 01: And the court said that that was not an adequate means for relief under the circumstances there. [00:52:09] Speaker 01: And we submit, although it's certainly a different set of circumstances, we submit that the alternative that amicus has proposed here, which is that the government wait and have its meritorious claim against a conceivably culpable defendant dismissed before an appeal be taken, [00:52:27] Speaker 01: from the order here. [00:52:29] Speaker 01: That similarly does not make sense. [00:52:33] Speaker 06: So that's if the dismissal is with prejudice. [00:52:34] Speaker 06: And I guess one just procedural question I have is, and I don't know what the practice is in the district courts, but is it possible to get some indication from the court whether the dismissal that would be entered would be with prejudice? [00:52:46] Speaker 01: Your Honor, I think in either case we would have the same argument, which is that it wouldn't make sense to force the government to go through that procedure in order to take an appeal to this court. [00:52:57] Speaker 01: But with respect to whether it would be whether without prejudice, I'm afraid that I can't answer that. [00:53:01] Speaker 01: I don't know what the district court would do. [00:53:03] Speaker 00: Could you change your mind if the district judge's order remained? [00:53:12] Speaker 00: Could you change your mind and prosecute legally? [00:53:18] Speaker 01: Your Honor, that is an issue that I don't think that I'm prepared to answer today and I think it would depend... I'm asking whether you have legal authority. [00:53:28] Speaker 00: Why are you not prepared to answer the question whether you have legal authority to change your mind at that point and prosecute? [00:53:34] Speaker 01: Well, Your Honor, I think it would depend on a variety of factors that might happen in the future. [00:53:40] Speaker 00: Council, I'm not asking you whether you would do it. [00:53:46] Speaker 00: I'm asking you whether you have legal authority. [00:53:49] Speaker 01: Whether we have legal authority to do it. [00:53:51] Speaker 01: Certainly we would have legal authority to change your mind and prosecute. [00:53:56] Speaker 01: If, for example, the company did not pay, the company has yet to pay the amount of... No, no, I'm asking if the district judge's order remained. [00:54:06] Speaker 00: Yes, Your Honor. [00:54:07] Speaker 00: And the speedy trial term expired. [00:54:12] Speaker 00: Could you change your mind and prosecute? [00:54:14] Speaker 01: Well, Your Honor, the reason why I'm hesitating to answer your question is because there's a question about whether the Deferred Prosecution Agreement went into effect as a result of the District Court's rejection of the motion to exclude time. [00:54:30] Speaker 01: And if, in fact, it did go into effect at that point, then we would be... If it did go into effect? [00:54:36] Speaker 01: Yes, correct. [00:54:37] Speaker 01: And that's, aesthetically, if it went into effect, we would be, the argument would be... You would be stopped. [00:54:44] Speaker 01: Unless there was a breach by the other party. [00:54:45] Speaker 00: In other words, but that's not clear. [00:54:47] Speaker 00: So it may be that you would have authority to prosecute. [00:54:50] Speaker 00: That's correct. [00:54:51] Speaker 00: I see. [00:54:53] Speaker 06: Thank you. [00:54:54] Speaker 06: Thanks to all counsel. [00:54:55] Speaker 06: Mr. Unikowski, you and your firm were, took on this responsibility at the request of the court as an amicus. [00:55:04] Speaker 06: Oh, I'm sorry. [00:55:06] Speaker 06: Yeah, sure. [00:55:06] Speaker 06: One minute. [00:55:07] Speaker 06: Sorry. [00:55:07] Speaker 03: Thank you. [00:55:08] Speaker 03: One minute. [00:55:08] Speaker 03: I'm new at this. [00:55:11] Speaker 03: I just wanted to... I have about a century of experience. [00:55:16] Speaker 03: I want to take a shot at addressing Judge Santel's point about interlocutory appeals for all speedy trial act exclusions. [00:55:23] Speaker 03: I do not believe that if interlocutory appeals granted here, that it opens up the courts to interlocutory appeals for all speedy trial act exclusions. [00:55:32] Speaker 03: And that's because if you look at the subsections, really there are only two of all of the subsections that allow for speedy trial after exclusions that contemplate any type of findings by the district court. [00:55:46] Speaker 03: Now we know it's 3161H2, and then there's the catch-all 3161H7, which is in the interest of justice, which necessarily requires district court findings. [00:55:56] Speaker 03: And so I think for that reason, we're not opening up. [00:55:59] Speaker 03: It would be for 3161H2. [00:56:03] Speaker 04: Any interlocutory appeals under those two subsections, then, always be available? [00:56:11] Speaker 03: I think for H-2. [00:56:12] Speaker 03: For H-7, I think there wouldn't be a justification for an interlocutory appeal because there's specifically a justification for district court findings there. [00:56:22] Speaker 03: And I think it would be hard-pressed for a different... It would be the merits of the judges' funding on that, too. [00:56:27] Speaker 04: I mean, they could lead to different sort of error than this one. [00:56:31] Speaker 03: Yes, but not for all the Speedy Trial Act exclusions. [00:56:34] Speaker 03: And then finally, I just wanted to state for record, we request that this Court reverse the District Court order and remand with instructions to grant the Joint Motion for Speedy Trial and to reassign to a different District Court judge. [00:56:46] Speaker 06: Thank you, Your Honor. [00:56:47] Speaker 06: Thank you. [00:56:48] Speaker 06: Thank you to all counsel. [00:56:49] Speaker 06: Now let me say, Mr. Unigasky, we greatly appreciate you and your firm's efforts on behalf of the Court. [00:56:55] Speaker 06: You've performed your responsibilities admirably.