Tag Archives: Serina M. Vash

Comey’s Choice: Unprecedented Situation, Extraordinary Transparency

by Serina M. Vash 

FBI Director James Comey has come under intense scrutiny in the wake of his letter to Congress on October 28, 2016.  On its face, the October 28th letter (PDF: 405 KB) was intended to supplement the Director’s prior testimony before Congress, which detailed the FBI’s decision not to recommend criminal charges against former Secretary Hillary Clinton in connection with her use of a personal email server.   But the timing of the correspondence and its incomplete content led to harsh rebuke from both sides of the aisle, accusations by lawmakers that Director Comey violated the Hatch Act (PDF: 185 KB) and criticism by former DOJ prosecutors that the FBI Director broke from longstanding Department of Justice policy.

Federal law and DOJ policy are aimed at assuring that the work of federal employees is carried out with integrity and without regard to politics or political pressure. While criticism of the FBI Director’s decisions is unlikely to abate, a review of the record demonstrates that the FBI Director’s intent was to provide extraordinary transparency in what has been an unprecedented situation. Continue reading

FedEx Lives to Deliver Another Day

by Serina M. Vash

It happens all the time in criminal trials: the case ends after opening statements.  Ordinarily, after a powerful opening statement by the government, reality sets in for the defendant.  The defendant changes course and pleads guilty, hoping that he can still reduce his sentence under the Federal Sentencing Guidelines.

But the turn of events in the FedEx Case is unprecedented.  After marching an eight year federal criminal investigation to trial, the U.S. Attorney’s Office for the Northern District of California dismissed its criminal case against FedEx shortly after opening statements and the district court judge declared that FedEx was “factually innocent.”

So what happened in the drug trafficking case against FedEx? Continue reading

Fokker Misses Opportunity to Provide Clear Guidance on Court’s Role in DPA Cases

by Serina M. Vash

Over the last decade, deferred prosecution agreements (“DPAs”) have been increasingly employed to resolve allegations of corporate criminal misconduct. When a DPA is reached between the government and a corporate defendant, the general practice has been for the government to file the DPA with the court, together with a charging document and a tolling agreement.  But once the power of the judiciary has been invoked by these simultaneous filings, what then becomes the role of the court?

While the narrow holding in United States v. Fokker Services B.V. (PDF: 114 KB) correctly pointed out what the court’s role is not, the Federal Circuit missed an opportunity to provide clear guidance on the scope of judicial authority to the district courts that increasingly find deferred prosecutions pending on their dockets. Continue reading