Seal of the United States District Court for the Southern District of New York
Re: United States v. Eric Adams, Case No. 1:24-cr-0556-DEH, Southern District of New York.
The Court has for consideration the Nolle Prosequi, or "motion seeking dismissal without prejudice of the charges in this case, with leave of the Court, pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure." U.S. v. Adams, Nolle Prosequi [hereinafter "the Motion"], Doc. No. 122, filed Feb. 14, 2025 (S.D.N.Y. Case No. 24 Cr. 556 (DEH)) (emphasis added).
The Motion is based on assertions and not on facts. For that reason alone, the Motion does not comply with the rule it invokes, Federal Rule of Criminal Procedure 48(a). See United States v. Jovanovic, Cr. Action No. 25-15 (BAH), 2025 WL 266551, at *2 (D.D.C. Jan. 22, 2025) (Howell, J.).
Here, the Motion before the Court is bereft of facts. On its face, it is expressly based not on the perceived observations and knowledge of any lawyer who signed the Motion, but it is expressly based instead on something that "[t]he Acting Deputy Attorney General has determined," or has "concluded," or has "reached that conclusion," or has "also concluded."
Since there are no facts presented to guide this Court in its decision whether to grant leave as this unsworn Motion requests, and since the Defendant's attorneys (understandably) agree with the Motion, this Court and its Law Clerks responsible for considering the proper disposition of this Motion may benefit from this Open Letter, which this Court and all of its Law Clerks are of course free to consult or reject.
As noted, there are no facts provided to this Court by or with this Motion. PACER does not reveal that any Declarations, Affidavits, or documentary evidence was filed along with this Motion.
And for good reason it seems. It is public knowledge that the United States Attorney for the Southern District of New York raised the issue, based on her own personal knowledge as she expressed in her letter, that this Motion is based on a rejection of ample evidence to support the grand jury's indictment in the first place. For your ease of reference, I am able to make Ms. Sassoon's February 12 letter available here: Download Danielle-sassoon-02.12.25 letter-to-ag
U.S. Attorney Sassoon's letter also raised the issue that the principal if not only motivation behind the filing of the Motion is, quoting the separate resignation letter of Assistant United States Attorney Hagan Scotten, "to induce an elected official to support [the current Government's] policy objectives." Download Hagan-scotten-resignation 02.14.25 EM letter.
Prosecutorial discretion is not unlimited. See United States v. Ammidown, 497 F. 2d 615, 620 (D.C. Cir. 1973) (suggesting that a prosecutor's decision to request dismissal of a criminal prosecution under Criminal Rule 48(a) might require a statement of governmental reasons and "underlying factual basis" supporting the government's decision).
It has been held, rather, that the District Court's role in the face of a Criminal Rule 48(a) Motion is to examine the record to insure that the efforts to end the criminal prosecution in the case before the Court, are not "'tainted with impropriety.'" United States v. Flynn, 507 F. Supp. 3d 116, 130 (D.D.C. 2020), quoting and applying Rinaldi v. United States, 434 U.S. 22, 30, 98 S. Ct. 81 (1977).
In Flynn, .District Judge Sullivan collected cases decided under Criminal Rule 48(a), concluding with a look at the reason why the Rule was enacted in the first place:
In addition, as indicated by the history of Rule 48(a), the corrupt dismissal of politically well-connected individuals would also constitute an abuse of discretion.
United States v. Flynn, 507 F. Supp. 3d at 130-31.
Case law under Federal Rule of Criminal Procedure 48(a) does not seem to support an unsupported dismissal of criminal charges in this case without an examination of a full record on this issue. However, the published cases decided under Rule 48(a) do seem to support the development of a full record on this issue. A full record on this issue would include, for example, the production to the Court (for in camera inspection if necessary) of all correspondence and other communications passing between any official of the current federal government, on the one hand, and Mr. Adams and his counsel on the other hand, concerning the issues set out in the pending Motion, in the February 12, 2025 letter of U.S. Attorney Danielle R. Sassoon, and in the February 14, 2025 EMail letter of Assistant U.S. Attorney Hagan Scotten.
Please consider or reject this Open Letter in your consideration of the pending materials. It is appropriate to raise one additional matter here, which it might not have been quite as appropriate if I were making an appearance in this case in your Court. Please also consider the effect on the Nation of your decision.
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