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March 23, 2021

"Was it fair?": Second Circuit judge questions charging practices of federal prosecutor

I helpful reader alerted me to an interesting concurring opinion by Judge Jon Newman in a Second Circuit decision yesterday in US v. Dumitru, No. 19-1486-cr (2d Cir. Mar. 22, 2021) (available here). Because my first job out of law school was clerking for Judge Newman, I tend to think everything he has to say is worth listening to.  But criminal justice fans may be especially interested in his discussion of prosecutorial charging in his short separate opinion in this case, and here is a small taste:

Prosecutors have extremely broad power to decide which criminal statutes to charge a defendant with violating.  That awesome power is only slightly limited....

The pending appeal strikes me as an example of a prosecutor’s decision to charge multiple counts that approaches, if not exceeds, the limits of fairness.  However, because the prosecutor’s selection of statutory violations to be charged in this case encounters no legal obstacle that a court is entitled to invoke, I concur in the Court’s opinion and judgment, but write separately to express views on the questionable fairness of the multiple counts in this case, views developed in many years as a prosecutor, trial judge, and appellate judge....

Atty. Andreea Dumitru prepared and submitted false asylum applications for a large number of her clients.  For that unlawful conduct the Government charged her with violating three different statutes.  The three-count indictment was lawful.  The question remains: Was it fair?

March 23, 2021 at 06:38 PM | Permalink


I read it when it showed up earlier on How Appealing and thought the concurrence was great. So you’re not the only one! And I agree with the obviously implied answer to his rhetorical question. I’m not condoning what the lawyer did here by any stretch, but the USAO also clearly acted vindictively. This one seems a bit reminiscent of the Sineneng-Smith case, although there are obviously important differences too.

Posted by: hardreaders | Mar 23, 2021 10:31:32 PM

Also, I noted it was a 2-judge panel per curiam with one judge concurring. That seems like a pretty rare occurrence. And since Newman J. concurred, I guess we can assume Cabranes J. was the PC author, yeah?

Posted by: hardreaders | Mar 23, 2021 11:03:58 PM

Useless and self-indulgent. Instead of irrelevant musings about "fairness," perhaps Judge Newman could get off his ass and vote to reverse the agg ID theft conviction.

Posted by: afpd | Mar 23, 2021 11:40:24 PM

It's nice to have a different point of view from afpd. Even if Newman wanted to reverse the conviction, just as a pure numbers game, how could that work? It was only a 2-judge panel and clearly the other judge (Cabranes) wanted to affirm. So what could Newman accomplish by changing his concurrence to a dissent? Maybe it works differently somehow from SCOTUS 4-4 split decisions, but I assume a 1-1 split in CA2 would just affirm the judgment below. And since Dumitru was the one appealing, that would still leave her conviction intact. So the result is the same either way I think.

Also, I forgot to mention earlier, but there's one aspect of the concurrence that does temper my earlier praise a little. There seems to be a glaring typo in the next-to-last paragraph. At the beginning he writes: "[T]he substantial weight of relevant authority from other circuits supports a rejection of the Appellant’s claim that her conduct ... violated subsection 1028A(a)(1)." Unless I'm ODing on crazy pills, shouldn't there be something like a *"did not"* before "violated"? Otherwise it seems to suggest that Dumitru is claiming to be *guilty*, but that can't be right I think.

Posted by: hardreaders | Mar 24, 2021 12:37:51 AM

Thanks for all these comments, and I am eager to validate afpd's concern about judicial musings that risk not really effecting any positive change. I have long believed that there are a range of constitutional and prudential doctrines that judges could use to seek to try to regulate prosecutorial charging practices. But it too often seems that judges are too disinclined to serve as any kind of check on prosecutorial powers in this setting.

Posted by: Doug B. | Mar 24, 2021 9:39:32 AM

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