Judiciary not able to substantively review DPAs, US Court of Appeals rules

Scott Balber (+1 917 542 7810, scott.balber@hsf.com) is a partner in the New York office of Herbert Smith Freehills

In a landmark appeal from the first denial of a deferred prosecution agreement (DPA) by a federal court, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit has decided that a district court lacks the authority to deny an exclusion of time under the Speedy Trial Act (STA) – a necessary step to effectuating a DPA – on the ground that the district court thinks the government should bring different charges, charge additional defendants, or demand a more stern set of sanctions. [1] The decision, says Scott Balber of Herbert Smith Freehills, will likely curb the recent trend of district courts asserting judicial power to substantively review DPAs and to second-guess the terms of the agreements.