No sooner had I published an article here providing instructions for using PACER to monitor federal court files, All the News That's Not Being Published, then a case came along to illustrate the article.
In May, 2024 one Jeffrey Fortenberry, a Member of Congress, was indicted by a federal Grand Jury. Mr. Fortenberry was accused of lying about money he allegedly took from foreigners during an FBI investigation into foreign money in U.S. elections. The FBI's investigation was not focused exclusively on Fortenberry, but was an investigation into money contributed by foreigners to U.S. elections. Download USA v. Fortenberry Indictment Filed 05.08.24.
The prosecutors and the defendant filed a Joint Motion to Continue Fortenberry's trial. Apparently seeing no need for urgency, Judge Trevor McFadden, the federal judge assigned to Mr. Fortenberry's case, set a Hearing on the Joint Motion for 28 days or 4 weeks later.
On January 29, 2025 the new "United States" filed a motion to dismiss the indictment with prejudice. Download USA v. Fortenberry MDW Prejudice Filed 01.29.25. On the same date, the federal judge assigned to the case approved it and dismissed the indictment with prejudice, meaning that the prosecution could never be brought again, in other words, that no grand jury would ever again consider the actions of Fortenberry in connection with these contributions of money by foreigners to his past campaign and there would be no prosecution of him in regard to them.
This Motion and Order occurred in the U.S. District Court for the District of Columbia. The motion to dismiss with prejudice invoked Federal Rule of Criminal Procedure 48(a), the same Rule that was invoked for the motions to dismiss pending January 6 indictments. In those cases, Judge Beryl Howell of the District of Columbia consulted the law. See The real story.... published here on January 23, 2025.
In the District of Columbia, when as in Fortenberry's case and in the January 6 pending cases "the defendant concurs in the dismissal," the law in the District of Columbia requires more than "a mere conclusory statement by the prosecutor that dismissal is in the public interest, but will require a statement of reasons and underlying factual basis." So says the United States Court of Appeals for the District of Columbia Circuit: United States v. Ammidown, 497 F.2d 615, 620 (D.C. Cir. 1973).
Neither Judge Beryl Howell nor Judge Trevor McFadden, the judge overseeing the Fortenberry case, was given any reason for dismissal of the indictment beyond "a mere conclusory statement." Neither judge was given "a statement of reasons and underlying factual basis." Yet Judge Howell refused to dismiss the pending J6 indictments with prejudice because of the government's failure to follow the Rule that the government itself invoked, while Judge McFadden had no problem dismissing the indictment with prejudice against Fortenberry presumably within minutes on the same day. (PACER does not tell us anything beyond the date when the motion was filed or when the Order was filed in Fortenberry's case.)
The difference may lie in the two judges' concern "whether the action [of dismissal, requested in all these cases to be with prejudice] sufficiently protects the public." That is what Ammidown laid down the law to be in the District of Columbia that triggers the federal courts there to "require a statement of reasons and underlying factual basis." Even then, parenthetically, the role of the federal courts in D.C. does not take the "primary responsibility" that belongs to the federal prosecutors in D.C. to protect the public, "but rather the role of guarding against abuse of prosecutorial discretion." Ammidown, 497 F.2d at 620 (emphasis added).
Judge Howell read Federal Rule of Criminal Procedure 48(a) one way in her role of guarding against abuse of prosecutorial discretion. Judge McFadden read the same Rule differently.
Without PACER follow up, we might never know the difference in outcomes in these similar cases, and we would never know about the unreported Order of Judge McFadden which can only be found on the docket. He wrote there:
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01/29/2025 |
MINUTE ORDER as to JEFFREY FORTENBERRY: The United States' 82 Unopposed Motion to Dismiss Indictment with Prejudice is GRANTED. Pursuant to Fed. R. Crim. P. 48(a), the government may dismiss an indictment with leave of court before trial. SO ORDERED. Signed by Judge Trevor N. McFadden on 1/29/2025. (lctnm2). (Entered: 01/29/2025) |
As far as the applicable law in the District of Columbia, it is true so far as it goes that, as Judge McFadden wrote in his unreported order: "Pursuant to Fed. R. Crim. P. 48(a), the government may dismiss an indictment with leave of court before trial." That is what the Rule says, certainly. But the United States Court of Appeals for the District of Columbia Circuit too read that Rule, and they read it differently in Ammidown.
It does not look like anything can be done to challenge Judge McFadden's unreported Order, coming as it does in the wake of an Unopposed Motion to Dismiss Indictment with Prejudice. However, thanks to PACER (for as long as access to it lasts), we can see for ourselves how Judge McFadden ruled in the Fortenberry case. That is something.
Parenthetically, the Honorable Trevor N. McFadden was appointed a federal judge during the first administration of the current president.
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