Foreign Murder of United States Nationals (18 U.S.C. 9-24.000 - Requests For Special Confinement Conditions, 9-28.000 - Principles of Federal Prosecution Of Business Organizations , Initiating and Declining ProsecutionProbable Cause Requirement, Grounds for Commencing or Declining Prosecution, Initiating and Declining ChargesSubstantial Federal Interest, Initiating and Declining ChargesProsecution in Another Jurisdiction, Initiating and Declining ChargesImpermissible Considerations, Selecting ChargesCharging Most Serious Offenses, Charges Triggering Mandatory Minimum Sentences and Recidivist Enhancementsin Certain Violent Crime Cases IncludingDrug Trafficking Crimes, Plea AgreementsConsiderations to be Weighed, Plea Agreements When Defendant Denies Guilt, Offers to Plead Nolo ContendereOpposition Except in Unusual Circumstances, Offers to Plead Nolo ContendereOffer of Proof, Argument in Opposition of Nolo Contendere Plea, Entering into Non-prosecution Agreements in Return for CooperationGenerally, Entering into Non-prosecution Agreements in Return for CooperationConsiderations to be Weighed, Entering into Non-prosecution Agreements in Return for CooperationLimiting the Scope of Commitment, Agreements Requiring Assistant Attorney General Approval, Multi-District (Global) Agreement Requests, Limitation on Identifying Uncharged Third-Parties Publicly. 
Comment. For example, in the case of a defendant who could be charged with five bank robberies, a decision to charge only one or to dismiss four counts pursuant to a bargain precludes any consideration of the four uncharged or dismissed robberies in determining a guideline range, unless the plea agreement included a stipulation as to the other robberies. Provide an opportunity for victim allocution. The considerations listed here are not intended to bean exhaustive list or to require a particular decision in a particular case. When adefendant commits one or more crimes of violence or drug trafficking crimes with a firearm, ordinarily charge at least one 18 U.S.C. See, e.g., 21 U.S.C. In determining whether it would be appropriate to enter into a plea agreement, the attorney for the government should weigh all relevant considerations, including: Comment. Such a plea does not require that the actual sentence range be determined in advance. The considerations are essentially the same as those governing the selection of charges to be included in the original indictment or information. The attorney for the government should commence or recommend federal prosecution if he/she believes that the person's conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction,unless (1) the prosecution would serve nosubstantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution. JM 9-27.440 concerns plea agreements involving "Alford" pleasguilty pleas entered by defendants who nevertheless claim to be innocent. It violates the spirit of the guidelines and Department policy for a prosecutor to enter into a plea bargain which is based upon the prosecutor's and the defendant's agreement that a departure is warranted, but that does not reveal to the court the existence of the departure and thereby afford the court an opportunity to reject it. 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. Making sentencing recommendations in appropriate cases. 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. That is the most serious readily provable charge consistent with the nature and extent of his/her criminal conduct; That makes likely the imposition of an appropriate sentence and order of restitution, if appropriate, under all the circumstances of the case; and. In order to ensure that the relevant facts are brought to the attention of the sentencing court fully and accurately, the attorney for the government should: Emphasize Critical Facts and Arguments. The attorney for the government must obtain supervisory approval before filing any substantial assistance motion pursuant to section 5K.1.1 of the Sentencing Guidelines or Federal Rule of Criminal Procedure 35. 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. Those statutory provisions govern the conditions under which uncooperative witnesses may be compelled to testify or provide information notwithstanding their invocation of the privilege against compulsory self incrimination. Amongst the different types of cooperation agree-ments, prosecutors increasingly utilize In the typical case, this balance will continue to be reflected by the applicable guidelines range, and prosecutors generally should advocate for a sentence within that range. All negotiated plea agreements to felonies or to misdemeanors negotiated from felonies shall be in writing and filed with the court. 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. In addition, in August 2018, American Media, Inc. (AMI ), a media company that owned and published magazines and supermarket tabloids including the National Enquirer, Web2021 Year-End Update on Corporate Non-Prosecution Agreements and Deferred Prosecution Agreements February 3, 2022 Click for PDF In 2021, the U.S. Department of A person who otherwise is, or isexpected to become of major public interest. The filing ofan information under 21 U.S.C. The attorney for the government may, in an appropriate case, enter into an agreement with a defendant that, upon the defendant's plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, he/she will not bring or will move for dismissal of other charges, take a certain position with respect to the sentence to be imposed, or take other action. Attempting to ensure that the relevant factsand sentencing factors, as applied to the facts, are brought to the court's attention fully and accurately; and. Download FMC Nonprosecution Agreement Topic (s): Foreign Corruption Health Care Fraud Component (s): Criminal Division Criminal - Criminal Fraud Section To further encourage full disclosure by the witness, it should be made clear in the agreement that the government's forbearance from prosecution is conditioned upon the witness's testimony or production of information being complete and truthful, and that failure to testify truthfully may result in a perjury prosecution. Any modification or departure contemplated as a matter of policy or regular practice must be approved by the appropriate Assistant Attorney General and the Deputy Attorney General. A prosecutor must be familiar with the guidelines generally and with the specific guideline provisions applicable to the case.A prosecutor should, as provided in JM 9-27.720 and 9-27.750, endeavor to ensure the accuracy and completeness of the information upon which the sentencing decisions will be based. Identification of victims of crimes committed by the defendant in any affected district, insofar as possible. Where two crimes have the same statutory maximum and the same guideline range, but only one contains a mandatory minimum penalty, the one with the mandatory minimum is the more serious. 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. 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. Comment. Both are permissible, but one is more complicated than the other. Ordinarily, these "use immunity" provisions should be relied on in cases in which attorneys for the government need to obtain sworn testimony or the production of information before a grand jury or at trial, and in which there is reason to believe that the person will refuse to testify or provide the information on the basis of his/her privilege against compulsory self-incrimination. 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. In situations in which a significant modification or departure is contemplated as a matter of policy or regular practice, the appropriate Assistant Attorney General and the Deputy Attorney General must approve the action before it is adopted. Different offices face different conditions and have different requirements. Federal prosecutors announced Wednesday that they have struck a non-prosecution agreement with National Enquirer parent company American Media Inc., The availability of this statement of principles to federal law enforcement officials and to the public serves two important purposes: ensuring the fair and effective exercise of prosecutorial discretion and responsibility by attorneys for the government, and promoting confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case. Absent a specific provision in a plea agreement, the attorney for the government is not legally obligated to make a recommendation at sentencing. Plea agreements should reflect the totality of a defendants conduct. And the government's position during the sentencing process will help ensure that the court imposes a sentence consistent with 18 U.S.C. Accordingly, attorneys for the government in Alford cases should endeavor to establish as strong a factual basis for the plea as possible not only to satisfy the requirement of Rule 11(b)(3), but also to minimize the adverse effects of Alford pleas on public perceptions of the administration of justice. However, the attorney for the governments belief that a person's conduct constitutes a federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction is not sufficient standing by itself to commence or recommend prosecution. The provisions of this section are intended to serve two purposes. The fact or facts contained in the ANP usually express that the victim of a domestic violence charge wants the prosecutors to drop or dismiss the charges. 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. Non-prosecution agreements (NPAs) are legally binding arrangements between government agencies such as the Department of Justice and companies or Every United States Attorney or Department of Justice Section Chief (or Assistant Chief) or Office Director shall maintain documentation of the facts behind and justification for each substantial assistance pleading in theofficial file. There shall be within each office a formal system for approval of negotiated pleas. v Anderson, 55 F.Supp.2d 1163 (D. Kan 1999); United States v. Smith, 992 F. Supp. 1965). 6001-6003. Government attorneys should also take full advantage of the opportunity afforded by Rule 11(b)(3) in an Alford case to thwart the defendant's efforts to project a public image of innocence. SeeBranzburg v. Hayes, 408 U.S. 665, 686 (1972). 1621 but not under 18 U.S.C. The amount of detail varies greatly. The defendant's willingness to cooperate in the investigation or prosecution of others; The defendant's history with respect to criminal activity; The nature and seriousness of the offense or offenses charged; The defendant's remorse or contrition and his/her willingness to assume responsibility for his/her conduct; The desirability of prompt and certain disposition of the case; The likelihood of obtaining a conviction at trial; The probable sentence or other consequences if the defendant is convicted; The public interest in having the case tried rather than disposed of by a guilty plea; The need to avoid delay in the disposition of other pending cases; and. 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. 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. Attorneys for the government should familiarize themselves with these alternatives and should consider pursuing them if they are available in a particular case. In addition to reciting facts that could be proved to show the defendant's guilt, the prosecutor should bring to the court's attention whatever arguments exist for rejecting the plea. As one court put it, "the public might well not understand or accept the fact that a defendant who denied his guilt was nonetheless placed in a position of pleading guilty and going to jail." Since federal prosecutors have great latitude in making crucial decisions concerning enforcement of a nationwide system of criminal justice, it is desirable, in the interest of the fair and effective administration of justice, that all federal prosecutors be guided by a general statement of principles that summarizes appropriate considerations to be weighed, and desirable practices to be followed, in discharging their prosecutorial responsibilities. 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. See JM 9-16.010(discussing the approval requirement).Comment. Such questions are certain to arise during cross-examination of the witness, particularly since the existence of the agreement should be disclosed to defense counsel pursuant to the requirements of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). NPAs are not filed with and do not involve review by a court. United States Attorneysmay modify or depart from the principles set forth herein as necessary in the interests of fair and effective law enforcement within the district. Thus, if practicable, the attorney for the government should explicitly limit the scope of his/her agreement to non-prosecution within his/her district. 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. The repository or repositories of this documentation need not be the case file itself. As noted above, this ordinarily will be the offenses that carry the most substantial guidelines sentence, including mandatory minimum sentences. 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. Sentencing is a critical stage in a case, and prosecutors play an indispensable role in advocating for just sentences. The principal requirements of the written record are that it be sufficiently detailed that it leaves no doubt as to the obligations of the parties to the agreement, and that it be signed or initialed by the person with whom the agreement is made and his/her attorney, or at least by one of them. The factors listed in JM 9-27.240are illustrative only, and the attorney for the government should also consider any others that appear relevant to his/her particular case. Non-prosecution within his/her district with respect to a pending charge, or to a specific offense then known to have been committed by the person. No amount of investigative effort warrants commencing a federal prosecution that is not fully justified on other grounds. The approval authority shall be vested in at least a supervisory criminal Assistant United States Attorney, or a supervisory attorney of a litigating division in the Department of Justice, who will have the responsibility of assessing the appropriateness of the plea agreement under the policies of the Department of Justice pertaining to pleas. Although these materials are designed to promote consistency in the application of federal criminal laws, they are not intended to produce rigid uniformity among federal prosecutors in all areas of the country at the expense of the fair administration of justice. If a plea of nolo contendere is offered over the government's objection, the attorney for the government should state for the record why acceptance of the plea would not be in the public interest; and he/she should alsooppose the dismissal of any charges to which the defendant does not plead nolo contendere. The attorney for the government should document these coordination efforts, where undertaken, when federal prosecution is declined. 1119), 9-142.000 Offenses Involving Suspected Human Rights Violators: Prior Approval, Notification, and Consultation Requirements (18 U.S.C. Compliance with these requirements will be facilitated if the agreement has been reduced to writing in advance. Office of Public Affairs FOR IMMEDIATE RELEASE Thursday, October 15, 2020 Private Equity CEO Enters into Non-prosecution Agreement on International Tax Fraud The Principles of Federal Prosecution havebeen developed purely as matter of internal Departmental policy andare being provided to federal prosecutors solely for their own guidance in performing their duties. The requesting district/division shall make known to each affected district/division the following information: See JM 16.030 for a discussion of the requirement for consultation with investigative agencies and victims regarding pleas. In determining whether a person's cooperation may be necessary to the public interest, the attorney for the government, and those whose approval is necessary, should weigh all relevant considerations, including: Comment. Charges should not be filed simply to exert leverage to induce a plea; nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendants conduct. Among other options, prosecutors can enter what are called non-prosecution agreements. In a typical non-prosecution agreement, a cooperator agrees to testify In a case in which a non-prosecution agreement is reached in return for a person's cooperation, the attorney for the government should ensure that the case file contains a memorandum or other written record setting forth the terms of the agreement. Comment. Due process requires that the sentence in a criminal case be based on accurate information. The procedures described above shall also apply to Motions filed pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure, where the sentence of a cooperating defendant is reduced after sentencing on motion of the United States. If a prosecution is to be concluded pursuant to a plea agreement, the defendant should be required to plead to a charge or charges: Comment. 3553(a); (3) below the statutory minimum; (4) above the statutory maximum; or (5) based on a prohibited factor, such as race, religion, gender, ethnicity, national origin, sexual orientation, or political association, activities, or beliefs. If the governments position with respect to the sentence to be imposed is related to a plea agreement, that position must be made known to the court at the time the plea is entered. As with the indictment decision, the prosecutor should seek a plea to the most serious readily provable offense(s) charged. [updatedFebruary 2018] [cited inJM9-16.300;JM9-16.320;JM9-27.300;JM9-28.1300]. Similarly, the "two witness" rule applies to perjury prosecutions under 18 U.S.C. . A lock (LockA locked padlock) or https:// means youve safely connected to the .gov website. When making a sentencing recommendation, the attorney for the government may consider whether, and to what extent, the defendant has provided substantial assistance in the investigation or prosecution of others. To ensure consistency and accountability, charging and plea agreement decisions must be reviewed by a supervisory attorney. This principle provides the framework for ensuring equal justice in the prosecution of federal criminal offenders. There are only two types of sentence bargains. The prosecutor's broad discretion in such areas as initiating or foregoing prosecutions, selecting or recommending specific charges, and terminating prosecutions by accepting guilty pleas has been recognized on numerous occasions by the courts. These agreements are governed by the same fundamental principles as are charging decisions: prosecutors will generally seek a plea to the most serious offense that is consistent with the nature and full extent of the defendants conduct and likely to result in a sustainable conviction, informed by an individualized assessment of all of the facts and circumstances of each particular case. Once it has been determined to commence prosecution, either by filing a complaint or an information, or by seeking an indictment from the grand jury, the attorney for the government must determine what charges to file or recommend. 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. 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 possible effect of the decision on the attorney's own professional or personal circumstances. JM 9-27.400 permits, the disposition of federal criminal charges pursuant to plea agreements between defendants and government attorneys. Freedom of Information Act or other considerations may suggest that a separate form showing the final decision be maintained. In carrying out criminal law enforcement responsibilities, each Department of Justice attorney should be guided by these principles, and each United States Attorney and each Assistant Attorney General should ensure that such principles are communicated to the attorneys who exercise prosecutorial responsibility within his/her office or under his/her direction or supervision. The USAO and LVSC agree that the following facts are true and correct: A. 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 attorney for the government should not, except with the approval of the United States Attorney and the appropriate Assistant Attorney General enter into a plea agreement if the defendant maintains his/her innocence with respect to the charge or charges to which he/she offers to plead guilty. A contractual arrangement between a US government agency (such as the. 1974); United States v. Davis, 516 F.2d 574 (7th Cir. This should be done in opencourteven in the rare case in which the government does not oppose the entry of a nolo plea. Except as provided in JM 9-27.440, the attorney for the government should not enter into a plea agreement with a defendant who admits his/her guilt but disputes an essential element of the government's case. This means that when a guideline range is 18 to 24 months, the prosecutor has discretion to agree to recommend a sentence of, for example,18 to 20 months rather than to argue for a sentence at the top of the range. Substantial Assistance. It should be noted that referrals for non-criminal disposition may not include the transfer of grand jury material unless an order under Rule 6(e) of the Federal Rules of Criminal Procedure, is obtained. b[e] contemplated by the Assistant United States Attorney against the [third-party] for the future." The attorney for the government should make sentencing recommendations based on an individualized assessment of the facts and circumstances of each case and the history and characteristics of the defendant, without improper consideration of the defendants race, religion, gender, ethnicity, national origin, sexual orientation, or political association, activities, or beliefs. As long as prosecutors exempt ineffective-assistance claims from their waiver provisions, they may request waivers of appeal and of post -conviction remedies to the full extent permitted by law as a component of plea discussions and agreements. Mixed Agreements. Whenever an attorney for the government declines to commence or recommend federal prosecution, he/she should ensure that his/her decision and the reasons therefore are communicated to the investigating agency involved and to any other interested agency, and are also reflected in the office files to ensure an adequate record of disposition of matters that are brought to the attention of the government attorney for possible criminal prosecution, but that do not result in federal prosecution. Sentencing Agreements. The Commission has recognized those bases for departure that are commonly justified. Comment. The general policy of the government is that people who have engaged in criminal activity should face some kind of punishment for that activity as that serves the public interest. There are times, however, when the public interest is better served by entering into non-prosecution agreements. 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. These precautions should minimize the effectiveness of any subsequent efforts by the defendant to portray himself/herself as technically liable, but not seriously culpable. /p>, [cited inJM9-27.400;JM9-28.1200;JM9-100.020]. Recommendations Required by Plea Agreements. Comment. When negotiating a plea agreement, the attorney for the government should also not seek to have a defendant waive claims of ineffective assistance of counsel whether those claims are made on collateral attack or, when permitted by circuit law, made on direct appeal. A departure requires approval by the court. [updated February 2018]. On the other hand, failure to meet the minimal requirement of probable cause is an absolute bar to initiating a federal prosecution, and in some circumstances may preclude reference to other prosecuting authorities or recourse to non-criminal sanctions or other measuresas well. The exact terms of the agreement may also become relevant if the government attempts to prosecute the witness for some offense in the future. The procedures to be followed in such cases are set forth in JM 9-21.000. Non-prosecution agreements (NPAs) are legally binding arrangements between government agencies such as the Department of Justice and companies or individuals facing a criminal or civil investigation. Are set forth in jm 9-21.000 JM9-28.1200 ; JM9-100.020 ] which the government attempts prosecute..., where undertaken, when the public interest is better served by entering into non-prosecution agreements between US... 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Comment. For example, in the case of a defendant who could be charged with five bank robberies, a decision to charge only one or to dismiss four counts pursuant to a bargain precludes any consideration of the four uncharged or dismissed robberies in determining a guideline range, unless the plea agreement included a stipulation as to the other robberies. Provide an opportunity for victim allocution. The considerations listed here are not intended to bean exhaustive list or to require a particular decision in a particular case. When adefendant commits one or more crimes of violence or drug trafficking crimes with a firearm, ordinarily charge at least one 18 U.S.C. See, e.g., 21 U.S.C. In determining whether it would be appropriate to enter into a plea agreement, the attorney for the government should weigh all relevant considerations, including: Comment. Such a plea does not require that the actual sentence range be determined in advance. The considerations are essentially the same as those governing the selection of charges to be included in the original indictment or information. The attorney for the government should commence or recommend federal prosecution if he/she believes that the person's conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction,unless (1) the prosecution would serve nosubstantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution. JM 9-27.440 concerns plea agreements involving "Alford" pleasguilty pleas entered by defendants who nevertheless claim to be innocent. It violates the spirit of the guidelines and Department policy for a prosecutor to enter into a plea bargain which is based upon the prosecutor's and the defendant's agreement that a departure is warranted, but that does not reveal to the court the existence of the departure and thereby afford the court an opportunity to reject it. 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. Making sentencing recommendations in appropriate cases. 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. That is the most serious readily provable charge consistent with the nature and extent of his/her criminal conduct; That makes likely the imposition of an appropriate sentence and order of restitution, if appropriate, under all the circumstances of the case; and. In order to ensure that the relevant facts are brought to the attention of the sentencing court fully and accurately, the attorney for the government should: Emphasize Critical Facts and Arguments. The attorney for the government must obtain supervisory approval before filing any substantial assistance motion pursuant to section 5K.1.1 of the Sentencing Guidelines or Federal Rule of Criminal Procedure 35. 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. Those statutory provisions govern the conditions under which uncooperative witnesses may be compelled to testify or provide information notwithstanding their invocation of the privilege against compulsory self incrimination. Amongst the different types of cooperation agree-ments, prosecutors increasingly utilize In the typical case, this balance will continue to be reflected by the applicable guidelines range, and prosecutors generally should advocate for a sentence within that range. All negotiated plea agreements to felonies or to misdemeanors negotiated from felonies shall be in writing and filed with the court. 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. In addition, in August 2018, American Media, Inc. (AMI ), a media company that owned and published magazines and supermarket tabloids including the National Enquirer, Web2021 Year-End Update on Corporate Non-Prosecution Agreements and Deferred Prosecution Agreements February 3, 2022 Click for PDF In 2021, the U.S. Department of A person who otherwise is, or isexpected to become of major public interest. The filing ofan information under 21 U.S.C. The attorney for the government may, in an appropriate case, enter into an agreement with a defendant that, upon the defendant's plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, he/she will not bring or will move for dismissal of other charges, take a certain position with respect to the sentence to be imposed, or take other action. Attempting to ensure that the relevant factsand sentencing factors, as applied to the facts, are brought to the court's attention fully and accurately; and. Download FMC Nonprosecution Agreement Topic (s): Foreign Corruption Health Care Fraud Component (s): Criminal Division Criminal - Criminal Fraud Section To further encourage full disclosure by the witness, it should be made clear in the agreement that the government's forbearance from prosecution is conditioned upon the witness's testimony or production of information being complete and truthful, and that failure to testify truthfully may result in a perjury prosecution. Any modification or departure contemplated as a matter of policy or regular practice must be approved by the appropriate Assistant Attorney General and the Deputy Attorney General. A prosecutor must be familiar with the guidelines generally and with the specific guideline provisions applicable to the case.A prosecutor should, as provided in JM 9-27.720 and 9-27.750, endeavor to ensure the accuracy and completeness of the information upon which the sentencing decisions will be based. Identification of victims of crimes committed by the defendant in any affected district, insofar as possible. Where two crimes have the same statutory maximum and the same guideline range, but only one contains a mandatory minimum penalty, the one with the mandatory minimum is the more serious. 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. 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. Comment. Both are permissible, but one is more complicated than the other. Ordinarily, these "use immunity" provisions should be relied on in cases in which attorneys for the government need to obtain sworn testimony or the production of information before a grand jury or at trial, and in which there is reason to believe that the person will refuse to testify or provide the information on the basis of his/her privilege against compulsory self-incrimination. 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. In situations in which a significant modification or departure is contemplated as a matter of policy or regular practice, the appropriate Assistant Attorney General and the Deputy Attorney General must approve the action before it is adopted. Different offices face different conditions and have different requirements. Federal prosecutors announced Wednesday that they have struck a non-prosecution agreement with National Enquirer parent company American Media Inc., The availability of this statement of principles to federal law enforcement officials and to the public serves two important purposes: ensuring the fair and effective exercise of prosecutorial discretion and responsibility by attorneys for the government, and promoting confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case. Absent a specific provision in a plea agreement, the attorney for the government is not legally obligated to make a recommendation at sentencing. Plea agreements should reflect the totality of a defendants conduct. And the government's position during the sentencing process will help ensure that the court imposes a sentence consistent with 18 U.S.C. Accordingly, attorneys for the government in Alford cases should endeavor to establish as strong a factual basis for the plea as possible not only to satisfy the requirement of Rule 11(b)(3), but also to minimize the adverse effects of Alford pleas on public perceptions of the administration of justice. However, the attorney for the governments belief that a person's conduct constitutes a federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction is not sufficient standing by itself to commence or recommend prosecution. The provisions of this section are intended to serve two purposes. The fact or facts contained in the ANP usually express that the victim of a domestic violence charge wants the prosecutors to drop or dismiss the charges. 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. Non-prosecution agreements (NPAs) are legally binding arrangements between government agencies such as the Department of Justice and companies or Every United States Attorney or Department of Justice Section Chief (or Assistant Chief) or Office Director shall maintain documentation of the facts behind and justification for each substantial assistance pleading in theofficial file. There shall be within each office a formal system for approval of negotiated pleas. v Anderson, 55 F.Supp.2d 1163 (D. Kan 1999); United States v. Smith, 992 F. Supp. 1965). 6001-6003. Government attorneys should also take full advantage of the opportunity afforded by Rule 11(b)(3) in an Alford case to thwart the defendant's efforts to project a public image of innocence. SeeBranzburg v. Hayes, 408 U.S. 665, 686 (1972). 1621 but not under 18 U.S.C. The amount of detail varies greatly. The defendant's willingness to cooperate in the investigation or prosecution of others; The defendant's history with respect to criminal activity; The nature and seriousness of the offense or offenses charged; The defendant's remorse or contrition and his/her willingness to assume responsibility for his/her conduct; The desirability of prompt and certain disposition of the case; The likelihood of obtaining a conviction at trial; The probable sentence or other consequences if the defendant is convicted; The public interest in having the case tried rather than disposed of by a guilty plea; The need to avoid delay in the disposition of other pending cases; and. 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. 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. Attorneys for the government should familiarize themselves with these alternatives and should consider pursuing them if they are available in a particular case. In addition to reciting facts that could be proved to show the defendant's guilt, the prosecutor should bring to the court's attention whatever arguments exist for rejecting the plea. As one court put it, "the public might well not understand or accept the fact that a defendant who denied his guilt was nonetheless placed in a position of pleading guilty and going to jail." Since federal prosecutors have great latitude in making crucial decisions concerning enforcement of a nationwide system of criminal justice, it is desirable, in the interest of the fair and effective administration of justice, that all federal prosecutors be guided by a general statement of principles that summarizes appropriate considerations to be weighed, and desirable practices to be followed, in discharging their prosecutorial responsibilities. 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. See JM 9-16.010(discussing the approval requirement).Comment. Such questions are certain to arise during cross-examination of the witness, particularly since the existence of the agreement should be disclosed to defense counsel pursuant to the requirements of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). NPAs are not filed with and do not involve review by a court. United States Attorneysmay modify or depart from the principles set forth herein as necessary in the interests of fair and effective law enforcement within the district. Thus, if practicable, the attorney for the government should explicitly limit the scope of his/her agreement to non-prosecution within his/her district. 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. The repository or repositories of this documentation need not be the case file itself. As noted above, this ordinarily will be the offenses that carry the most substantial guidelines sentence, including mandatory minimum sentences. 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. Sentencing is a critical stage in a case, and prosecutors play an indispensable role in advocating for just sentences. The principal requirements of the written record are that it be sufficiently detailed that it leaves no doubt as to the obligations of the parties to the agreement, and that it be signed or initialed by the person with whom the agreement is made and his/her attorney, or at least by one of them. The factors listed in JM 9-27.240are illustrative only, and the attorney for the government should also consider any others that appear relevant to his/her particular case. Non-prosecution within his/her district with respect to a pending charge, or to a specific offense then known to have been committed by the person. No amount of investigative effort warrants commencing a federal prosecution that is not fully justified on other grounds. The approval authority shall be vested in at least a supervisory criminal Assistant United States Attorney, or a supervisory attorney of a litigating division in the Department of Justice, who will have the responsibility of assessing the appropriateness of the plea agreement under the policies of the Department of Justice pertaining to pleas. Although these materials are designed to promote consistency in the application of federal criminal laws, they are not intended to produce rigid uniformity among federal prosecutors in all areas of the country at the expense of the fair administration of justice. If a plea of nolo contendere is offered over the government's objection, the attorney for the government should state for the record why acceptance of the plea would not be in the public interest; and he/she should alsooppose the dismissal of any charges to which the defendant does not plead nolo contendere. The attorney for the government should document these coordination efforts, where undertaken, when federal prosecution is declined. 1119), 9-142.000 Offenses Involving Suspected Human Rights Violators: Prior Approval, Notification, and Consultation Requirements (18 U.S.C. Compliance with these requirements will be facilitated if the agreement has been reduced to writing in advance. Office of Public Affairs FOR IMMEDIATE RELEASE Thursday, October 15, 2020 Private Equity CEO Enters into Non-prosecution Agreement on International Tax Fraud The Principles of Federal Prosecution havebeen developed purely as matter of internal Departmental policy andare being provided to federal prosecutors solely for their own guidance in performing their duties. The requesting district/division shall make known to each affected district/division the following information: See JM 16.030 for a discussion of the requirement for consultation with investigative agencies and victims regarding pleas. In determining whether a person's cooperation may be necessary to the public interest, the attorney for the government, and those whose approval is necessary, should weigh all relevant considerations, including: Comment. Charges should not be filed simply to exert leverage to induce a plea; nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendants conduct. Among other options, prosecutors can enter what are called non-prosecution agreements. In a typical non-prosecution agreement, a cooperator agrees to testify In a case in which a non-prosecution agreement is reached in return for a person's cooperation, the attorney for the government should ensure that the case file contains a memorandum or other written record setting forth the terms of the agreement. Comment. Due process requires that the sentence in a criminal case be based on accurate information. The procedures described above shall also apply to Motions filed pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure, where the sentence of a cooperating defendant is reduced after sentencing on motion of the United States. If a prosecution is to be concluded pursuant to a plea agreement, the defendant should be required to plead to a charge or charges: Comment. 3553(a); (3) below the statutory minimum; (4) above the statutory maximum; or (5) based on a prohibited factor, such as race, religion, gender, ethnicity, national origin, sexual orientation, or political association, activities, or beliefs. If the governments position with respect to the sentence to be imposed is related to a plea agreement, that position must be made known to the court at the time the plea is entered. As with the indictment decision, the prosecutor should seek a plea to the most serious readily provable offense(s) charged. [updatedFebruary 2018] [cited inJM9-16.300;JM9-16.320;JM9-27.300;JM9-28.1300]. Similarly, the "two witness" rule applies to perjury prosecutions under 18 U.S.C. . A lock (LockA locked padlock) or https:// means youve safely connected to the .gov website. When making a sentencing recommendation, the attorney for the government may consider whether, and to what extent, the defendant has provided substantial assistance in the investigation or prosecution of others. To ensure consistency and accountability, charging and plea agreement decisions must be reviewed by a supervisory attorney. This principle provides the framework for ensuring equal justice in the prosecution of federal criminal offenders. There are only two types of sentence bargains. The prosecutor's broad discretion in such areas as initiating or foregoing prosecutions, selecting or recommending specific charges, and terminating prosecutions by accepting guilty pleas has been recognized on numerous occasions by the courts. These agreements are governed by the same fundamental principles as are charging decisions: prosecutors will generally seek a plea to the most serious offense that is consistent with the nature and full extent of the defendants conduct and likely to result in a sustainable conviction, informed by an individualized assessment of all of the facts and circumstances of each particular case. Once it has been determined to commence prosecution, either by filing a complaint or an information, or by seeking an indictment from the grand jury, the attorney for the government must determine what charges to file or recommend. 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. 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 possible effect of the decision on the attorney's own professional or personal circumstances. JM 9-27.400 permits, the disposition of federal criminal charges pursuant to plea agreements between defendants and government attorneys. Freedom of Information Act or other considerations may suggest that a separate form showing the final decision be maintained. In carrying out criminal law enforcement responsibilities, each Department of Justice attorney should be guided by these principles, and each United States Attorney and each Assistant Attorney General should ensure that such principles are communicated to the attorneys who exercise prosecutorial responsibility within his/her office or under his/her direction or supervision. The USAO and LVSC agree that the following facts are true and correct: A. 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 attorney for the government should not, except with the approval of the United States Attorney and the appropriate Assistant Attorney General enter into a plea agreement if the defendant maintains his/her innocence with respect to the charge or charges to which he/she offers to plead guilty. A contractual arrangement between a US government agency (such as the. 1974); United States v. Davis, 516 F.2d 574 (7th Cir. This should be done in opencourteven in the rare case in which the government does not oppose the entry of a nolo plea. Except as provided in JM 9-27.440, the attorney for the government should not enter into a plea agreement with a defendant who admits his/her guilt but disputes an essential element of the government's case. This means that when a guideline range is 18 to 24 months, the prosecutor has discretion to agree to recommend a sentence of, for example,18 to 20 months rather than to argue for a sentence at the top of the range. Substantial Assistance. It should be noted that referrals for non-criminal disposition may not include the transfer of grand jury material unless an order under Rule 6(e) of the Federal Rules of Criminal Procedure, is obtained. b[e] contemplated by the Assistant United States Attorney against the [third-party] for the future." The attorney for the government should make sentencing recommendations based on an individualized assessment of the facts and circumstances of each case and the history and characteristics of the defendant, without improper consideration of the defendants race, religion, gender, ethnicity, national origin, sexual orientation, or political association, activities, or beliefs. As long as prosecutors exempt ineffective-assistance claims from their waiver provisions, they may request waivers of appeal and of post -conviction remedies to the full extent permitted by law as a component of plea discussions and agreements. Mixed Agreements. Whenever an attorney for the government declines to commence or recommend federal prosecution, he/she should ensure that his/her decision and the reasons therefore are communicated to the investigating agency involved and to any other interested agency, and are also reflected in the office files to ensure an adequate record of disposition of matters that are brought to the attention of the government attorney for possible criminal prosecution, but that do not result in federal prosecution. Sentencing Agreements. The Commission has recognized those bases for departure that are commonly justified. Comment. The general policy of the government is that people who have engaged in criminal activity should face some kind of punishment for that activity as that serves the public interest. There are times, however, when the public interest is better served by entering into non-prosecution agreements. 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. These precautions should minimize the effectiveness of any subsequent efforts by the defendant to portray himself/herself as technically liable, but not seriously culpable. /p>, [cited inJM9-27.400;JM9-28.1200;JM9-100.020]. Recommendations Required by Plea Agreements. Comment. When negotiating a plea agreement, the attorney for the government should also not seek to have a defendant waive claims of ineffective assistance of counsel whether those claims are made on collateral attack or, when permitted by circuit law, made on direct appeal. A departure requires approval by the court. [updated February 2018]. 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