Ammidown remains the touchstone opinion interpreting the scope of trial courts’ authority under Rule 48. The Supreme Court has cited Ammidown with approval in its own case law interpreting Rule 48, and Judge Sullivan himself cited Ammidown as his circuit’s primary Rule 48 precedent in a 2019 opinion resolving a prosecutorial-harassment claim. The D.C. Circuit also continues to treat Ammidown as the circuit’s seminal Rule 48 opinion—including in a more recent opinion, United States v. Fokker Services.
Some commentators have read Fokker as effectively wiping out Sullivan’s authority to deny the government’s request in Flynn’s case, given that opinion’s sweeping assertion that “decisions to dismiss pending criminal charges … lie squarely within the ken of prosecutorial discretion,” leaving no “substantial role for courts.” But it would be a mistake to overread this passage. Fokker concerned a trial court’s authority under the Speedy Trial Act to interfere with a proposed deferred prosecution agreement, essentially a form of pretrial probation in which a case is put on hold for a year or more while the prosecutor monitors the defendant’s behavior. No Rule 48 motion was filed in that case, which means the court of appeals had no occasion to revisit or alter its governing opinion in Ammidown.
More importantly, what Fokker Services says about Rule 48—read in its proper context—actually supports the proposition that Sullivan has the authority to review the government’s request in Flynn’s case. Indeed, the Fokker Services court drew a sharp distinction between cases in a pretrial posture—like all deferred prosecution agreements—and cases like Flynn’s in which a defendant has pleaded guilty and the court is called upon to impose a sentence. In drawing this distinction, the Fokker Services court repeatedly cited Ammidown with approval, reaffirming that opinion’s primary place in the doctrinal framework. And as Ammidown makes clear, a trial court in Sullivan’s position “should not be content with a mere conclusory statement by the prosecutor that dismissal is in the public interest.” Rather, as the Supreme Court later explained in its own leading case on the subject, the trial court must conduct an “examination of the record” in order to ensure that the government’s “efforts to terminate the prosecution [are not] tainted with impropriety.”
Appellate case law interpreting this standard is sparse, presumably because the overwhelming majority of prosecutorial requests to drop cases are not tainted with impropriety. But while there do not appear to be cases in which appellate courts have prevented the Justice Department from dropping cases for reasons other than prosecutorial harassment—and while appellate courts have sometimes overruled district courts for rejecting prosecutors’ Rule 48 motions—the courts have consistently held that trial judges have a responsibility to consider whether a dismissal motion fails to “serve due and legitimate prosecutorial interests,” represents a marked “departure from sound prosecutorial principle,” is based on “a sham or a deception,” is “tainted by bad faith,” or is driven by base personal interests. The courts of appeals, in other words, have gone out of their way to insist that trial court judges not only can but should be vigilant against extreme cases of prosecutorial abuse—and have thus always held out the possibility of a case so extreme that denying a motion to dismiss would be necessary. This is that case.