By: Megan Doyle

In U.S. v. Fokker,[1] the D.C. Circuit questioned the breadth of authority that the executive branch has in bringing criminal charges.[2] The Court examined the question of whether the Executive could use a deferred prosecution agreement (“DPA”)[3] to suspend the Speedy Trial Act in certain circumstances, particularly when the DPA mandates a time period during which a defendant may comply with certain regulations and therefore be allowed the chance to have their criminal charges dropped.[4]

In this case, a Dutch aerospace company, Fokker Services (“Fokker”), informed both the United States Department of Treasury and Department of Commerce that it was in potential violation of federal sanctions and export laws relating specifically to Iran, Sudan, and Burma.[5] When Fokker came forward with this information, the U.S. Government had not yet initiated an investigation against Fokker, and Fokker was extremely cooperative once it disclosed this information, and allowed the U.S. government to initiate investigations into Fokker’ activities, clients, and a variety of their business practices.[6] Fokker even agreed to participate in formal interviews regarding their potential export violations.[7] Fokker made a variety of changes to its management structure and seemed willing to ensure that these violations do not occur again.[8] It is rare, if almost unheard of that a company would come forward with the information that they had violated import/export laws and how, and tried to make this right.[9]

The United States government wanted to offer Fokker a DPA because they had been so cooperative and come forward with their information.[10] Under the DPA, the U.S. Government mandated that the Fokker fully cooperate with any government investigations, implement a new compliance policy, and pay the U.S. government $21 million – a figure representing the revenue gained from any illicit export trade.[11] The U.S. government filed an action with the district court charging Fokker with conspiracy pursuant to the International Emergency Economic Powers Act.[12] Immediately after filing this action, the U.S. government also filed a joint motion with Fokker to ensure the Speedy Trial Act[13] would not apply so that Fokker would have the chance to comply with the government’s regulations.[14] However, the district court denied the motion and chastised the government for their failure to fully prosecute individuals for their illicit conduct, and did not allow a suspension of the Speedy Trial Act.[15]

The Court reversed the ruling of the District Court, and thus gave the government a great deal of say in allowing companies to report any potential wrongdoings and create a similar compliance agreement as in Fokker to ensure they are not prosecuted to the fullest extent for these wrongdoings.[16]

As stated previously, it is extremely rare that businesses come forward and admit that they have potentially violated U.S. law. Most DPA cases stem from information the government itself uncovers. In Fokker, the Court rewarded a business for coming forward, and upheld their DPA. Additionally, Judge Srinivasan notes the same Court found that it could not reward that behavior and could not allow the suspension of a speedy trial act simply because of good behavior.[17] He also notes that it was the first time a federal court had denied the exclusion of time under the Speedy Trial Act for a DPA.[18]

The business community rarely sees such transparency from companies followed with reward from both courts and the U.S. government, this could encourage other companies to find that if they are in violation of a law, they can possibly negotiate this. The Court preferences the government’s expertise in offering DPAs and encourages companies to come forward. Thus, practitioners should find that companies have more room to make potentially illegal decisions and still have a viable way to avoid eventual prosecution for these decisions.

[1] No. 15- 3016 (D.C. Cir. April 5, 2016)

[2] Id. at 3.

[3] A DPA is a tool the U.S. government uses, particularly with companies, to ensure that the company has the opportunity to, in a given time frame, abide by a set of regulations the U.S. government sets forth. If during that time frame, the company or individual has abided by these regulations then there will be no formal prosecution. This allows companies to continue to do business in the United States and gives the government a certain amount of control over them when they do break certain U.S. laws in the course of doing business. Peter J. Henning, HSBC Case Tests Transparency of Deferred Prosecution Agreements, N.Y. Times, Feb. 8, 2016,

[4] See Id. at 3 (stating that the prosecution wanted a suspension of the Speedy Trial Act to allow for a company to comply with certain regulations and therefore have the criminal charges against them dropped pursuant to the deferred prosecution act (“DPA”)).

[5] Id. at 6.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] See 18 U.S.C. § 371; 50 U.S.C. § 1705 (establishing that Fokker’s behavior constituted conspiracy and therefore violated the International Emergency Economic Powers Act).

[13] The Speedy Trial Act requires a maximum of 70 days after which a trial can begin after an indictment has been filed, and a maximum of 60 days for an indictment to be filed for a felony offense. See 18 U.S.C. § 3161.

[14] Id. at 7.

[15] Id. at 8.

[16] Cf. Id. at 9 (holding that the Speedy Trial Act does not confer upon the courts the power to determine the time in which an individual should be prosecuted, and that the district court in Fokker therefore overstepped their authority).

[17] See Id. at 8 (quoting United States v. Fokker Services, B.V., 79 F. Supp. 3d 160, 166 (D.D.C. 2015)) (showing that the prior court found it unacceptable that no individuals would be prosecuted for illegal conduct, and that allowing such a lack of law enforcement to stand would set a poor public policy standard).

[18] Id. at 9.

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