Prosecutorial (In)Discretion

United States v. Abair | 13-2498
RRD v. Holder | 13-2141

April 2014

We could not pass up an opportunity to highlight two cases in which judges on the Seventh Circuit openly questioned the aggressive exercise of prosecutorial discretion.

Judge Sykes expressed “serious misgivings about the wisdom” of prosecuting the Russian homebuyer discussed above in U.S. v. Abair, writing: “It’s unclear to me how the interests of justice are served by saddling [her] with a felony conviction and forcing her to forfeit her home as punishment for a technical, trivial violation of the structuring statute.” As she explained, the defendant (charged and convicted of structuring cash transactions to avoid the $10,000 CTR reporting requirement) had no criminal background; the government presented no evidence that she was tied to other criminal conduct; and the defendant offered a lawful, plausible and partially corroborated explanation for her conduct. Judge Sykes noted that remand “has the salutary effect of permitting a fresh exercise of prosecutorial discretion.”

Similarly, in RRD v. Holder, No. 13-2141, a review of an order by the Board of Immigration Appeals, Judge Easterbrook criticized the government for its effort to remove a former Mexican law enforcement officer who sought asylum because his life had been threatened as a result of his effective efforts in narcotics enforcement while in Mexico. In reversing the removal order against the former Mexican officer, Judge Easterbrook noted that the officer “appears to be someone who should be hired and put to work by the Department of Homeland Security itself, rather than sent packing.”

Defense attorneys raise these arguments all the time – and more often than not, they fall on deaf ears. Here’s hoping the government listens better to people clad in black robes.