United States v. Fokker Services B.V.
79 F. Supp. 3d 160
D.D.C.2015Background
- Fokker Services B.V., a Dutch aerospace services company, was charged by Information (2014) with a five-year conspiracy (2005–2010) to export or re-export U.S.-origin aircraft parts and services to sanctioned countries (primarily Iran, also Sudan and Burma) without OFAC licenses—allegedly 1,153 shipments generating about $21 million in revenue.
- The Information alleges deliberate concealment and evasion techniques (falsified/withheld tail numbers, deleting end‑user fields, directing business to less‑scrutinizing vendors, hiding documents from inspectors), and senior‑management awareness of U.S. sanctions.
- The Government filed a Deferred Prosecution Agreement (DPA) and Factual Statement contemporaneously; under the DPA Fokker admits responsibility, will pay $10.5 million to the DOJ (plus separate $10.5 million to BIS/OFAC), cooperate, implement compliance reforms, and if it complies for 18 months the Government will dismiss the Information with prejudice.
- The parties sought court approval of the DPA and an exclusion of the DPA period from Speedy Trial Act calculations under 18 U.S.C. § 3161(h)(2) (periods during which prosecution is deferred by written agreement with court approval).
- The court reviewed the DPA under its supervisory authority, considered seriousness of the charged conduct, the DPA’s terms (fine equal to proceeds, only 18‑month term, no independent monitor, reliance on self‑reporting, no individual prosecutions), and denied approval and the requested Speedy Trial Act exclusion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court must approve the DPA delay exclusion under the Speedy Trial Act | Govt.: Court role is limited; approval appropriate unless coercion or Solely to evade STA | Fokker: Court should defer to parties unless clear abuse; seeks approval | Court: Must exercise supervisory review and declines to approve DPA as presented; denies STA time exclusion |
| Whether the court has authority to approve or reject the DPA | Govt.: Approval is ministerial under §3161(h)(2) | Fokker: Same—approval should be routine absent bad faith | Court: Holds it has inherent supervisory power to approve or reject and must protect judicial integrity |
| Whether the DPA terms are proportionate and adequate given the alleged misconduct | Govt.: Voluntary disclosure, cooperation, remediation, and financial condition justify the DPA | Fokker: Remediation and cooperation warrant deferred prosecution and limited penalty | Court: DPA is grossly disproportionate to the seriousness and duration of violations; terms are insufficient (penalty ≈ proceeds, short 18‑month term, no independent monitor, no individual accountability) |
| Whether the court should lend its imprimatur to a DPA that keeps criminal charges on docket to enforce compliance | Govt.: Court approval is appropriate to enable DOJ supervision; dismissal after compliance is conventional | Fokker: Approval acceptable; DPA provides leverage and oversight | Court: Refuses to lend judicial imprimatur to an agreement it finds inadequate; remains open to modified agreement |
Key Cases Cited
- Payner v. United States, 447 U.S. 727 (court supervisory power over criminal proceedings)
- Bank of Nova Scotia v. United States, 487 U.S. 250 (Scalia, J., concurring) (federal courts possess inherent supervisory authority)
- McNabb v. United States, 318 U.S. 332 (courts should not become mere instruments of law enforcement)
- Olmstead v. United States, 277 U.S. 438 (Brandeis, J., dissenting) (judicial duty to uphold integrity of the judicial process)
- United States v. Jones, 433 F.2d 1176 (D.C. Cir.) (supervisory powers should be exercised sparingly)
- United States v. Johnson, 221 F.3d 83 (2d Cir.) (contexts for exercising supervisory powers)