“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?