Comment. Government counsel should exercise extreme caution to ensure that his non-prosecution agreement does not confer “general” immunity on the witness. For example, he should try to limit his consent to non-prosecution on the basis of witness statements or information. Such an agreement on “informal immunity” has two advantages over an agreement not to prosecute the person in a particular transaction: first, it retains the prosecutor`s ability to prosecute on the basis of independently obtained evidence if it later turns out that the person`s criminal involvement was more serious than it originally appeared; And second, it encourages the witness to be as open as possible, because the more he reveals, the more protection he will have against future prosecution. To further promote full witness disclosure, the agreement should clarify that the government`s leniency in prosecution depends on the witness` testimony or the presentation of complete and truthful information, and that failure to testify honestly may result in perjury prosecutions. Comment. In the federal criminal justice system, the prosecutor has a great deal of leeway in determining when, who, how and even whether to prosecute for clear violations of federal criminal law. The prosecutor`s broad discretion in areas such as initiating or refraining from prosecution, choosing or recommending certain charges, and terminating prosecutions by accepting guilty pleas has been recognized by the courts on numerous occasions. See e.B. United States v. LaBonte, 520 U.S. 751, 762 (1997); Oyler vs. Boles, 368 U.S.
448 (1962); United States v. Fokker Services B.V., 818 F.3d 733, 741 (D.C. Cir. 2016); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir.
1965). This discretion is based on the prosecutor`s status as a member of the executive branch and the president`s responsibility under the Constitution to ensure that U.S. laws are “faithfully executed.” Const. of the United States II § 3. See Nader v. Saxbe, 497 F.2d 676, 679 n. 18 (D.C. Cir. 1974). Given that federal prosecutors have a great deal of flexibility in making important decisions regarding the application of a national criminal justice system, it is desirable, in the interest of fair and efficient administration of justice, that all federal prosecutors be guided by a general statement of principles summarizing the considerations to be considered and the desirable practices to be followed.
in the exercise of their functions as prosecutors. On September 29, 2020, JPMorgan Chase & Co. (“JPMorgan”) and the DOJ Fraud Section, as well as the U.S. Attorney`s Office for the District of Connecticut (“D. Conn.”), entered into a three-year DPA to resolve criminal allegations of payout fraud. [128] Under the terms of the DPA, JPMorgan paid more than $920 million in criminal fines ($436.4 million), criminal skimming ($172 million) and compensation to victims ($311.7 million). [129] The fine and recovery are credited for separate agreements with the CFTC and sec respectively. [130] Commentary. JM 9-27.640 establishes special cases requiring the approval of non-prosecution agreements by the appropriate Deputy Attorney General. Paragraph 1 covers cases where existing legal provisions and ministerial guidelines require that, for certain types of offences, the Attorney General, the Deputy Attorney General or a Deputy Attorney General be consulted or give consent before the prosecution is dismissed or the indictment is dismissed.
See (e.B JM 6-4.245 (tax offences); JM 9-41 010 (bankruptcy fraud); JM 9-90.020 (crimes related to national security); (see JM 9-2 400 for a complete list of all pre-approval and consultation requirements). A no-prosecution agreement is akin to a dismissal of a prosecution or the rejection of an indictment, since the end result is similar in all cases: a person who has participated in criminal activities will not be prosecuted or not fully prosecuted for his crime. Therefore, government lawyers should seek the consent of the appropriate Deputy Attorney General before agreeing not to prosecute in cases where consultation or approval would be required to refuse prosecution or dismiss an indictment. Paragraph 2 specifies other situations in which government counsel would have to seek the consent of a Deputy Attorney General on a proposed agreement not to prosecute in exchange for cooperation. In general, the situations described are cases of an exceptional or extremely sensitive nature or cases involving persons or matters of important public interest. In a case covered by this provision that appears to be particularly sensitive, the Deputy Prosecutor General should reconsider whether it would be appropriate to inform the Prosecutor General or the Deputy Prosecutor General. Deferred Prosecution Agreements (DSAs) have become a regular, though rarely used, feature of the UK legal landscape in recent years. The concept of respondeat superior – meaning that an employer is responsible for the actions of its employees and agents – makes corporate criminal liability in the United States a realistic prospect when those who work for a company are involved in criminal activity. This makes the possibility of prosecution relatively easy, which can then lead to the resolution of a case by an DPA. In the United Kingdom, however, the absence of this concept means that the so-called principle of identification is used to determine whether the author was a “guiding spirit and will” of the company. This has proven to be an obstacle to establishing corporate responsibility in the UK.
The more difficult it is to prove the company`s liability, the lower the likelihood of prosecution, which in turn means a lower probability of a decision on an ODA. Perhaps because of the Arthur Andersen case – and the many innocent employees who were in distress as a result of that lawsuit – resolving a case by a DPA has become more common in recent years. According to one study, from 2015 to 2017, the Department of Justice entered into more than 150 such agreements with defendants. DPAs occur in cases of potential fraud, corruption, price-fixing, violations of foreign corrupt practices, securities violations and other criminal behavior. DpAs have been used in the United States for decades. Some data protection authorities include the appointment of an independent auditor to monitor the agreement and ensure compliance with the terms. Comment. JM 9-27.450 is designed to facilitate compliance with Rule 11 of the Federal Rules of Criminal Procedure and to provide protection against misunderstandings that may arise regarding the terms of an agreement.
Rule 11(c)(2) requires that an agreement on admission be disclosed in open session (unless there is evidence of a material reason why disclosure may be made in camera), while Rule 11(c)(4) requires that the injunction provided for in the agreement be included in the judgment. Compliance with these requirements is facilitated if the agreement has been reduced to written form in advance. Whenever a defendant presents a negotiated plea, this fact and the terms of the agreement should also be kept on file with the Agency. Written agreements will facilitate the Ministry`s efforts to monitor prosecutors` compliance with ministry guidelines and guidelines. Documentation may include a copy of the court record at the time of the public plea hearing. Within each Office, there is a formal system for approving the means negotiated. Approval authority is vested in at least one U.S. Attorney`s Supervisory Assistant or a Supervising Prosecutor from a Litigation Division of the Department of Justice, who is responsible for assessing the suitability of the appeal agreement in accordance with the Department of Justice`s plea guidelines. If certain foreseeable factual situations arise very frequently and are treated in the same way, the authorisation requirement may be fulfilled by a written instruction from the competent supervisor specifying the standard procedure to be applied by means, provided that this procedure is otherwise in accordance with the directives of the Ministry […].