When a person has committed a federal offense, it is important that the law respond promptly, fairly, and effectively. JM 9-27.300 also expresses the principle that a defendant generally should be charged with the most serious offenses that are encompassed by his/her conduct, and that are readily provable. For example, to convict persons who are part of a large-scale, nationwide drug-trafficking enterprise the public interest might be served by a non-prosecution agreement with someone who played a minor role in the enterprise, but it might not be in the overall public interest to do so for a case involving a small, local conspiracy to sell illegal drugs. A departure requires approval by the court. 1 The DOJ's DPAs and NPAs (collectively "settlement agreements" or "agreements") occupy a middle ground between a guilty plea that results in a company's criminal . DPAs and NPAs are Powerful Tools for Avoiding Punishment In a case covered by this provision that appears to be of an especially sensitive nature, the Assistant Attorney General should, in turn, consider whether it would be appropriate to notify the Attorney General or the Deputy Attorney General. The attorney for the government should exercise extreme caution to ensure that his/her non-prosecution agreement does not confer "blanket" immunity on the witness. Current drug laws provide for increased maximum, and in some cases minimum, penalties for many offenses based on a defendant's prior criminal convictions. It is also important to consider whether the person has a background of cooperation with law enforcement officials, either as a witness or an informant, and whether he/she has previously been the subject of a compulsion order under 18 U.S.C. *Pro-Tip: Remember to consult legal counsel regarding any court case. MichaelMiller123. Re: Non Prosecution Agreement. In this connection, it should be noted that, when deciding whether to prosecute, the government attorney need not have in hand, at that time, all of the evidence upon which he/she intends to rely at trial, if he/she has a reasonable and good faith belief that such evidence will be available and admissible at the time of trial. Settlement Agreement means this agreement, including the recitals and schedules. For example, in a complicated money laundering case, prosecutors might want to have the testimony of someone who had a minor role in the scheme as a middleman. Before recommending a sentence that reflects a departure or variance from the advisory guideline range, the attorney for the government must obtain supervisory approval.Comment. Except as hereafter provided, the attorney for the government may, with supervisory approval, enter into a non-prosecution agreement in exchange for a person's cooperation when, in his/her judgment, the person's timely cooperation appears to be necessary to the public interest and other means of obtaining the desired cooperation are unavailable or would not be effective. Comment. Department policy requires transparency and honesty in sentencing; federal prosecutors are expected to identify for the court departures when they agree to support them. Prosecutors will not seek non-prosecution agreements with people who have previously committed many crimes or who can only offer information about their own subordinates in the criminal enterprise. The criminal history and culpability of the person will also be considered. 3771, the Victims Rights and Restitution Act,34 U.S.C. TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights, contained in Annex 1C to the WTO Agreement; Consortium Agreement means an agreement to be entered into amongst all the Members of the Consortium and forming part of their Bid. JM 9-27.430sets forth the considerations that should be taken into account in selecting the charge or charges to which a defendant should be required to plead guilty once it has been decided to dispose of the case pursuant to a plea agreement. Comment. First, if time permits, the person may be charged, tried, and convicted before his/her cooperation is sought in the investigation or prosecution of others. For example, the multiple offense rules in Part D of Chapter 3 of the guidelines and the relevant conduct standard set forth in Sentencing Guideline 1B1.3(a)(2) will mean that certain dropped charges will be counted for purposes of determining the sentence, subject to the statutory maximum for the offense or offenses of conviction. 0000004364 00000 n it simply means you were granted "immunity" from further prosecution in exchange for your guilty plea to the actual or lesser charge. 3. April 13, 2021 Deferred Prosecution Agreements, Non-Prosecution Agreement, SEC. Someone with only tangential information about a small portion of a criminal enterprise is less likely to be offered a non-prosecution agreement than someone who can testify to the entire operation. 44 0 obj <> endobj Thissection is intended to assist federal prosecutors, and those whose approval they must secure, in deciding whether a person's cooperation appears to be necessary to the public interest. 1974); United States v. Davis, 516 F.2d 574 (7th Cir. That does not adversely affect the investigation or prosecution of others. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify thatan attorney for the government will: Three types of plea agreements are encompassed by the language of JM 9-27.400: 1) agreements whereby in return for the defendant's plea to a charged offense or to a lesser or related offense, other charges are not sought or are dismissed ("charge agreements"); 2) agreements pursuant to which the government takes a certain position regarding the sentence to be imposed ("sentence agreements"); and 3) agreements that combine a plea with a dismissal of charges and an undertaking by the prosecutor concerning the government's position at sentencing ("mixed agreements"). The interests of the victim, including any effect upon the victim's right to restitution. People involved in criminal activity try to cover their tracks and make sure that they only people who know about the crime are the participants. In other less predictable contexts, federal prosecutors should strive to avoid unnecessary public references to wrongdoing by uncharged third-parties. Art. Particular care should be exercised in considering whether to enter into a plea agreement pursuant to which the defendant will enter a nolo contendere plea. Due process requires that the sentence in a criminal case be based on accurate information. Non-Competition Agreements has the meaning set forth in the Recitals. A person who otherwise is, or isexpected to become of major public interest. This discretion exists by virtue of the prosecutor's status as a member of the Executive Branch, and the President's responsibility under the Constitution to ensure that the laws of the United States be "faithfully executed." In such a case, despite his/her negative assessment of the likelihood of a guilty verdict (based on factors extraneous to an objective view of the law and the facts), the prosecutor may properly conclude that it is necessary and appropriate to commence or recommend prosecution and allow the criminal process to operate in accordance with the principles set forth here. The requirements for reporting and seeking approval to appeal adverse sentencing decisions are set forth in JM 9-2.170. In the context of public plea and sentencing proceedings, this means that, in the absence of some significant justification, it is not appropriate to identify (either by name or unnecessarily-specific description), or cause a defendant to identify, a third-party wrongdoer unless that party has been officially charged with the misconduct at issue. The principles of federal prosecution set forth herein are intended to promote the reasoned exercise of prosecutorial discretion by attorneys for the government with respect to: Comment. For example, the Non-Prosecution Agreement ("NPA") described in item 5 of this section, which UBS entered into with the US Department of Justice ("DOJ"), Criminal Division, Fraud Section in connection with UBS's submissions of benchmark interest rates, including, among others, the British Bankers' Association London Interbank Offered Rate ("LIBOR"), was terminated by the DOJ based on its determination that UBS had committed a US crime in relation to foreign exchange matters. Balancing Sentencing Factors. the impact on the stability and integrity of financial markets and international commerce. For example, in those cases where the offense to which a defendant is pleading guilty requires as an element that a third-party have a particular status (e.g., 18 U.S.C. 2023Thomson Reuters. The attorney for the government should recognize that not all of the factors set forth in 3553 may be relevant or of equal importance in every case and that, for a particular offense committed by a particular offender, one of the purposes, or a combination of purposes, may be of overriding importance.3. It is with their help that these principles have been prepared, and it is with their efforts that the purposes of these principles will be achieved. United States v. Gaskins, 485 F.2d 1046, 1048 (D.C. Cir. Related to Non-Prosecution Agreement. . To ensure consistency and accountability, charging and plea agreement decisions must be reviewed by a supervisory attorney. SeeBranzburg v. Hayes, 408 U.S. 665, 686 (1972). Business leaders from across the world are vulnerable to government investigations. However, the interests of justice and the public interest often will be best served if the prosecutor handling the matter makes a recommendation as to an appropriate sentence. Collaboration Agreement has the meaning set forth in the Recitals. See alsoJM 9-16.010. Other prosecutorial decisions can be equally significant. 1973); see alsoUnited States v. Bednarski, supra; United States v. Boscoe, 518 F.2d 95 (1st Cir. Enter to open, tab to navigate, enter to select, https://content.next.westlaw.com/practical-law/document/Ic6a0c1740fec11e598db8b09b4f043e0/Non-Prosecution-Agreement-NPA?viewType=FullText&transitionType=Default&contextData=(sc.Default). As noted above, this ordinarily will be the offenses that carry the most substantial guidelines sentence, including mandatory minimum sentences. Moreover, Guideline 5K2.0 recognizes that a sentencing court may consider a ground for departure that has not been adequately considered by the Commission. Accordingly, before the government may seek a departure based on a factor other than one set forth in Chapter 5, Part X, approval of the United States Attorney, appropriate Assistant Attorney General, or designated supervisory official is required. 6001-6003 or has escaped prosecution by virtue of an agreement not to prosecute. Comment. Formation Agreement has the meaning attributed to it in Recital A; Most comprehensive library of legal defined terms on your mobile device, All contents of the lawinsider.com excluding publicly sourced documents are Copyright 2013-. NPAs also do not need a monitoring officer. Comment. Important though these principles are to the proper operation of our federal prosecutorial system, the success of that system must rely ultimately on the character, integrity, sensitivity, and competence of those men and women who are selected to represent the public interest in the federal criminal justice process. The attorney for the government should be guided by the practice of the court concerning the manner and form in which sentencing recommendations are made. SeeJM 9-27.300. Government attorneys have been instructed for many years not to consent to nolo pleas except in the most unusual circumstances, and to do so then only with Departmental approval. Where certain predictable fact situations arise with great frequency and are given identical treatment, the approval requirement may be met by a written instruction from the appropriate supervisor which describes with particularity the standard plea procedure to be followed, so long as that procedure is otherwise within Departmental guidelines. AMI Non-Prosecution Agreement, Ex. Request or conduct further investigation; Decline prosecution and refer the matter for prosecutorial consideration in another jurisdiction; Decline prosecution andcommence or recommend pretrial diversion or other non-criminal disposition; or. Market, Industry & Portfolio Intelligence, Financial Applications & Workflow Integration, Dow Jones News for Institutional Investors. Authority to approve such pleadings is limited to the United States Attorney, the Chief Assistant United States Attorney, and supervisory criminal Assistant United States Attorneys, or a committee including at least one of these individuals. The repository or repositories of this documentation need not be the case file itself. Similarly, the "two witness" rule applies to perjury prosecutions under 18 U.S.C. Substantial Assistance. In entering into a non-prosecution agreement, the attorney for the government should, if practicable, explicitly limit the scope of the government's commitment to: Comment. 851. A departure requires approval by the court. What Is a Non Prosecution Agreement. 1975); Irizarry v. United States, 508 F.2d 960 (2d Cir. Using the advisory guidelines as a touchstone, the attorney for the government should seek sentences that reflect an appropriate balance of the factors set forth in 3553. See21 U.S.C. If a prosecutor wishes to support a departure from the guidelines, he or she should candidly do so and not stipulate to facts that are untrue. Case 1:20-cr-00007-JPJ-PMS Document 13-2 Filed 02/14/20 Page 2 of 7 Pageid#: 34 proactive steps to enhance its regulatory function, capabilities and support to guide the business and other control functions on . In such cases, considerable care is required to ensure selection of the proper charge or charges. Under Rule 11(b)(3), the court must be satisfied that there is "a factual basis" for a guilty plea. Among the options are: taking no position regarding the sentence; not opposing the defendant's request; requesting a specific type of sentence (e.g., a fine or probation), a specific fine or term of imprisonment, or not more than a specific fine or term of imprisonment; and requesting concurrent rather than consecutive sentences. The basic policy is that charges are not to be bargained away or dropped in ways that represent a significant departure from the principles set forth herein. In the typical case, such a recommendation will be appropriate. under the terms of a non-prosecution agreement. In addition, as is the case with respect to guilty pleas, the attorney for the government should urge the court to require the defendant to admit publicly the facts underlying the criminal charges. April 14, 2022. A determination to prosecute represents a policy judgment that the fundamental interests of society require the application offederalcriminal lawto a particular set of circumstancesrecognizing both that serious violations of federal law must be prosecuted, and that prosecution entails profound consequences for the accused, crime victims, and their families whether or not a conviction ultimately results. An agreement not to prosecute resembles a declination of prosecution or the dismissal of a charge in that the end result in each case is similar: a person who has engaged in criminal activity is not prosecuted or is not prosecuted fully for his/her offense. If the testimony is necessary to successfully prosecute the crime, prosecutors will sometimes agree not to prosecute someone who had a minor role in the crime in exchange for the information. The attorney for the government should oppose the acceptance of a plea of nolo contendere unless the United States Attorney and the appropriate Assistant Attorney General conclude that the circumstances of the case are so unusual that acceptance of such a plea would be in the public interest. 743 (D.N.J. When prosecution is declined in serious cases on the understanding that action will be taken by other authorities, appropriate steps should be taken to ensure that the matter receives their attention. Comment. The attorney for the government should document these coordination efforts, where undertaken, when federal prosecution is declined. Gain unique insights from the worlds most comprehensive collection of news and data. The provision is not intended to suggest the desirability or lack of desirability of a plea agreement in any particular case or to be construed as a reflection on the merits of any plea agreement that actually may be reached; its purpose is solely to assist attorneys for the government in exercising their prosecutorial discretion as to whether a plea agreement would be appropriate in a particular case. Foreign Murder of United States Nationals (18 U.S.C. Such information regarding compulsion orders may be available by telephone from the Policy and Statutory Enforcement Unit in the Office of Enforcement Operations of the Criminal Division. Some factors that prosecutors will consider in making this judgment are: Because the government would prefer to get necessary information about criminal activities by other means, the prosecuting attorney who wishes to enter into a non-prosecution agreement must have his or her supervisor sign off on the agreement. In that case, prosecutors should carefully consider whether an exception may be justified. See e.g.,JM 6-4.245 (tax offenses); JM 9-41.010 (bankruptcy frauds); JM 9-90.020 (national security-related offenses); (see JM 9-2.400 for a complete listing of all prior approval and consultation requirements). The exact terms of the agreement may also become relevant if the government attempts to prosecute the witness for some offense in the future. Consequently, it is often preferable to have a jury resolve the factual and legal dispute between the government and the defendant, rather than have government attorneys encourage defendants to plead guilty under circumstances that the public might regard as questionable or unfair. Freedom of Information Act or other considerations may suggest that a separate form showing the final decision be maintained. In a case in which the defendant tenders a plea of guilty but denies committing the offense to which he/she offers to plead guilty, the attorney for the government should make an offer of proof of all facts known to the government to support the conclusion that the defendant is in fact guilty. As part of Aguilar's plea agreement, Aguilar will pay restitution to the H-2B workers in the amount of $1,144,693.56 and a civil penalty in the amount of $210,696.39. Examples of such non-criminal approaches include civil tax proceedings; civil actions under the False Claims Act or other statutory causes of action for false or fraudulent claims; civil actions under the securities, customs, antitrust, or other regulatory laws; administrative suspension and debarment or exclusion proceedings; civil judicial and administrative forfeiture; and reference of complaints to licensing authorities or to professional organizations such as bar associations. Of course, he/she may also be charged with other criminal acts (as provided in JM 9-27.320), if the proof and the government's legitimate law enforcement objectives warrant additional charges. It is vital that federal prosecutors understand when conduct that is not charged in an indictment or conduct that is alleged in counts that are to be dismissed pursuant to a bargain may be counted for sentencing purposes and when it may not be. Comment. Such a filing is deemed for sentencing purposes to be the equivalent of a substantial assistance pleading. Under the terms of the Non-Prosecution Agreement, among other things, the DOJ agreed not to prosecute General Re for any crimes committed by General Re relating to General Res previously disclosed transaction with American International Group, Inc. For example, the Non-Prosecution Agreement (NPA) described in item 5 of this Note, which we entered into with the US Department of Justice (DOJ), Criminal Division, Fraud Section in connection with our submissions of benchmark interest rates, including, among others, the British Bankers Association London Interbank Offered Rate (LIBOR), was terminated by the DOJ based on its determination that we had committed a US crime in relation to foreign exchange matters. As discussed in JM 9-27.500 and JM 9-16.000, there are serious objections to such pleas and they should be opposed unless the appropriate Assistant Attorney General concludes that the circumstances are so unusual that acceptance of such a plea would be in the public interest. for more information regarding plea agreements. 3553, and are listed above. The concession required by the government as part of a plea agreement, whether it be a "charge agreement," a "sentence agreement," or a "mixed agreement," should be weighed by the responsible government attorney in the light of the probable advantages and disadvantages of the plea disposition proposed in the particular case. On the other hand, DPAs require the company to admit to facts sufficient to support an indictment. All rights reserved. In determining whether a prosecution would serve a substantial federal interest, the attorney for the government should weigh all relevant considerations, including: Comment. Privacy Policy and Terms of Use, Non-prosecution & Deferred Prosecution Agreements. Comment. 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