R. Crim. 1981). In the unusual instance where identification of an uncharged third-party wrongdoer during a plea or sentencing hearing is justified, the express approval of the United States Attorney and the appropriate Assistant Attorney General should be obtained prior to the hearing absent exigent circumstances. In re Smith, 656 F.2d 1101, 1106-07 (5th Cir. WebNon Prosecution Agreement 1. 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. Subparagraph (1) covers cases in which existing statutory provisions and departmental policies require that, with respect to certain types of offenses, the Attorney General, the Deputy Attorney General, or an Assistant Attorney General be consulted or give his/her approval before prosecution is declined or charges are dismissed. SeeJM 9-22.000. JM 9-27.320 outlines three general situations in which additional charges may be brought: (1) when necessary adequately to reflect the nature and full extent of the criminal conduct involved; (2) when necessary to provide the basis for an appropriate sentence under all the circumstances of the case; or (3) when an additional charge or charges would significantly strengthen the case against the defendant or a codefendant. 1975); United States. 3. A departure requires approval by the court. Mixed Agreements. As set forth in JM 9-27.400, prosecutors may enter into plea agreementsthat require the government to make or not make particular recommendations at sentencing. 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. 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. Similarly, Assistant Attorneys General overseeing prosecuting components may modify or depart from the principles set forth herein in the interests of fair and effective law enforcement, and any modification or departure contemplated by an Assistant Attorney General as a matter of policy or regular practice must be approved by the Deputy Attorney General. Due process requires that the sentence in a criminal case be based on accurate information. See, Finally, there may be cases in which it is impossible or impractical to employ the methods described above to secure the necessary information or other assistance, and in which the person is willing to cooperate only in return for an agreement that he/she will not be prosecuted at all for what he/she has done. First, it is important to have a written record in the event that questions arise concerning the nature or scope of the agreement. The requirements for reporting and seeking approval to appeal adverse sentencing decisions are set forth in JM 9-2.170. The principles provide convenient reference points for the process of making prosecutorial decisions; they facilitate the task of training new attorneys in the proper discharge of their duties; they contribute to more effective management of the government's limited prosecutorial resources by promoting greater consistency among the prosecutorial activities of all United States Attorney's offices and between their activities and the Department's law enforcement priorities; they make possible better coordination of investigative and prosecutorial activity by enhancing the understanding of investigating departments and agencies of the considerations underlying prosecutorial decisions by the Department; and they inform the public of the careful process by which prosecutorial decisions are made. First, if the applicable guideline range from which a sentence may be imposed would be unaffected, readily provable charges may be dismissed or dropped as part of a plea bargain. 20141, and the Attorney General Guidelines for Victim and Witness Assistance. Are necessary to ensure that the information or indictment adequately reflects the nature and extent of the criminal conduct involved, and provides the basis for an appropriate sentence under all of the facts and circumstances of the case; Will significantly enhance the strength of the government's case against the defendant or a codefendant. The attorney for the government should apply relevant sentencing factors to the facts in a way that most accurately and convincingly supports the governments recommended sentence. JM 9-27.420 sets forth some of the appropriate considerations to be weighed by the attorney for the government in deciding whether to enter into a plea agreement with a defendant pursuant to the provisions of Rule 11 of the Federal Rules of Criminal Procedure. Prosecutors shall comply, however, with any court order directing the public filing of a bill of particulars. 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. Typically, however, a defendant will have committed more than one criminal act and his/her conduct may be prosecuted under more than one statute. Cooperate with the Probation Service in its preparation of the presentence investigation report; Review the presentence investigation report; Highlight critical facts and sentencing considerations in a way that accurately and compellingly supports the governments recommended sentence; Make a factual presentation to the court when: Sentence is imposed without a presentence investigation and report; It is necessary to supplement or correct the presentence investigation report; It is necessary in light of the defense presentation to the court; or, Be prepared to substantiate significant factual allegations disputed by the defense; and. The sanctions or other measures available under the alternative means of disposition; The likelihood that an effective sanction will be imposed; The effect of non-criminal disposition on federal law enforcement interests; and. Public and professional responsibility sometimes will require the choosing of a particularly unpopular course. Similarly, when the defendant engaged in joint criminal conduct with others, generic references ("another individual") to the uncharged third-party wrongdoers can be used when describing the factual basis for the defendant's guilty plea. By contrast, in the case of a defendant who could be charged with five counts of fraud, the total amount of money involved in a fraudulent scheme will be considered in determining a guideline range even if the defendant pleads guilty to a single count and there is no stipulation as to the other counts. Similarly, the prosecutor may agree to recommend a downward adjustment for acceptance of responsibility if he or she concludes in good faith that the defendant is entitled to the adjustment. Other prosecutorial decisions can be equally significant. The SECs investigation was supervised by Tracy L. Davis of the San Francisco Regional Office. Taking a position on detention or release pending judicial proceedings; Opposing offers to plead nolo contendere; Entering into non-prosecution agreements in return for cooperation; and, That prosecutorial decisions are made at an appropriate level of responsibility, and are made consistent with these principles; and. 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. All negotiated plea agreements to felonies or to misdemeanors negotiated from felonies shall be in writing and filed with the court. 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. See, e.g.,United States v. LaBonte, 520 U.S. 751, 762 (1997); Oyler v.Boles, 368 U.S. 448 (1962); United States v. Fokker Services B.V., 818 F.3d 733, 741 (D.C. Cir. Where the law and the facts create a sound, prosecutable case, the likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the defendant or his/her causeis not a factor prohibiting prosecution. Foreign Murder of United States Nationals (18 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. 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. See alsoJM 9-16.010. 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. 1425 and 18 U.S.C. 1. Such negotiated dispositions should be distinguished from situations in which a defendant pleads guilty or nolo contendere to fewer than all counts of an information or indictment in the absence of any agreement with the government. A person who otherwise is, or isexpected to become of major public interest. Once the decision to prosecute has been made, the attorney for the government should charge and pursue the most serious, readily provable offenses. The Company's obligations under this Agreement shall have a term of three years from the later of the date on which the Agreement is executed or the date on Balancing Sentencing Factors. By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences. 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. 
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. 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. There shall be within each office a formal system for approval of negotiated pleas. Different offices face different conditions and have different requirements. This is, of course, a threshold consideration only. U.S. Const. In addition, in August 2018, American Media, Inc. (AMI ), a media company that owned and published magazines and supermarket tabloids including the National Enquirer, 1951, 9-132.000 - Labor Management Relations Act - 29 U.S.C. It is important to know whether dropping a charge may affect a sentence, including monetary penalties such as restitution or forfeiture. In other situations, the governments position might be conveyed to the probation officer during the presentence investigation; to the court in the form of a sentencing memorandum filed in advance of the sentencing hearing; or to the court orally at the time of the hearing. In many instances, it may be possible to prosecute criminal conduct in more than one jurisdiction. Enter into compliance and remediation commitments, potentially including a corporate compliance monitor. Freedom of Information Act or other considerations may suggest that a separate form showing the final decision be maintained. 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. 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. Moreover, a decision not to prosecute a violation of federal law pursuant to Section 12(a) of the Classified Information Procedures Act would trigger a reporting requirement to the Congress, and may not take place without the approval of the Assistant Attorney General for National Security. These factors are set forth in 18 U.S.C. 186, 9-133.000 - Embezzlement And Theft From Labor Unions And Employee Benefit Plans, 9-134.000 - Employee Benefit Plan Kickbacks, 9-135.000 - Employee Retirement Income Security Act Of 1974 (ERISA), 9-136.000 - Labor And Pension/Welfare Reporting And Recordkeeping, 9-137.000 - Deprivation Of Rights By Violence, 9-138.000 - Prohibition Against Certain Persons Holding Office And Employment, 9-141.000. 
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