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A deferred prosecution agreement is a good possible outcome when non-prosecution is not available to resolve criminal charges
TOP TERMS IN A FEDERAL DEFERRED PROSECUTION AGREEMENT (PART 1)
INTRODUCTION
When a non-prosecution agreement is unavailable to someone involved in a criminal investigation, a Deferred Prosecution Agreement (or DPA) could be the next best possible outcome.
However, as we will see below, the Department of Justice (DOJ) can get defendants to concede significant rights in a DPA, which will give the government a significant advantage in any future prosecution against them. Defendants must understand the stakes involved in any breach of their DPA or if they commit new crimes.
WHAT IS A DPA?
A deferred prosecution agreement is a mechanism to resolve a criminal case, and some think of it as an unofficial form of probation. Under a DPA, the government will bring charges but agrees not to move forward on those charges for a specified time period.
Generally, defendants do not have to plead guilty to accept a deferred prosecution agreement (also called “diversion” in some states). Deferred prosecution is generally limited to the lowest level offenders and offenses, although there are exceptions. With deferred prosecution, the defendant agrees to live by a specific set of rules or terms during a certain time period.
People who successfully complete deferred prosecution agreements can earn a dismissal of their criminal case. Although probation can be a desirable outcome in many criminal cases, deferred prosecution agreements can also provide people with the opportunity to have the original charges dismissed after they successfully finish the term in the agreement.
Another Prison Professors Blog post is available here: NON-PROSECUTION & DEFERRED PROSECUTION AGREEMENTS
A Recent Federal Deferred Prosecution Agreement
In a recent high-profile criminal case, the DOJ entered into a DPA with Marc Baier, Ryan Adams, and Daniel Gericke (“the Baier case”) to resolve their criminal charges.
Under the terms of the DPA in the Baier case, Baier, Adams, and Gericke agreed to pay $750,000, $600,000, and $335,000 respectively, over a three-year term, which no one can reimburse them for without the express approval of the US government. In addition to the financial penalties, as part of the DPA, the defendants agreed to full cooperation with the DOJ and FBI; the immediate relinquishment of any foreign or US security clearances; a lifetime ban on future US security clearances; and certain future employment restrictions.
Although many of the terms in the Baier case DPA are unique to that cyber security prosecution, the DPA illustrates the myriad terms that the DOJ can include in criminal deferred prosecution agreements and the strict restrictions that the DOJ often imposes on criminal defendants entering into DPAs.
Therefore, people need to enter into a federal criminal DPA mindful of the significant commitments involved. Failure to appreciate these commitments could lead to unwanted breaches of the agreement and criminal prosecution. By then, the DOJ will have secured for itself significant advantages in the DPA that will make the case harder for anyone to overcome.
For access to the full text of the Deferred Prosecution Agreement in the Baier case: Click Here.
Using the recent deferred prosecution agreement in the Baiers case as a guide, here are the key provisions of these agreements in the federal system.
1. Agree to Criminal Information and Factual Statement
Even when the parties have agreed to resolve the case with a DPA, the government still files criminal charges against the person in the form of an indictment, information, or criminal complaint. Prosecutors will also file a factual statement, as explained in point # 4 below.
For example, in the Baier case, each defendant acknowledged and agreed to the filing of a two-count criminal information in the federal district court for the District of Columbia. The Information charges defendants with:
(1) knowingly and willfully conspiring to violate the Arms Export Control Act (“AECA”) and the International Traffic in Arms Regulations (“ITAR”), in violation of Title 18, US Code Section 371; and
(2) knowingly conspiring to commit access device fraud, and computer fraud and abuse, in violation of Title 18 US Code Sections 1029 and 1030.
2. Agree to Waive Constitutional Right to Indictment
When the government does not yet have a grand jury indictment against someone, the government will require the person to waive the indictment in the DPA. That is because everyone has the right to a grand jury indictment under the Sixth Amendment of the US Constitution.
The DOJ will also require that person waive all rights to a speedy trial, another Constitutional right.
In the Baier case, the government had not obtained a grand jury indictment. Therefore, each defendant had to agree to waive these two Constitutional rights.
3. Agree to Selected Venue
To avoid any possible dispute about the location of future court proceedings, should they become necessary, the DOJ will require that people waive any objection to the venue selected in the agreement.
Specifically, the Baier DPA required each defendant to “knowingly waive any objection with respect to venue to any charges by the [government] arising out of the conduct described in the Factual Statement attached.”
Each defendant had to consent to the filing of the charging document in the District Court for the District of Columbia. That means that any future proceedings in the case will occur in that Court, and this choice is not subject to challenge.
4. Admission of Factual Statement
A DPA generally includes a factual statement setting forth the agreed-upon facts and circumstances of the criminal investigation. Prosecutors insist on such factual statements to streamline any potential future litigation or prosecution, among other reasons.
In their DPAs, defendants in the Baier case each had to “admit, accept, and acknowledge under oath that the facts and descriptions of their conduct, and that of persons working with and for them, as set forth in the Factual Statement are true and accurate.“
A DPA means that defendants are subject to subsequent criminal prosecution if they breach the terms of the agreement. This provision renders everything in the factual statement evidence automatically admissible at a subsequent trial, not subject to challenge. It gives the prosecution an enormous advantage in the event of a trial.
5. Term of the Agreement
The parties agreed to a three-year term in the Baier case, running from when prosecutors filed the criminal information.
That DPA further states that if the government determines that any of the defendants knowingly violated any provision of the deferred prosecution agreement or failed to perform all their obligations under the agreement completely, the government has the discretion to extend the DPA for an additional year.
The length of a DPA will vary depending on the circumstances of the case, and three years is a fairly common term.
Note: Beware, sometimes a DPA has provisions that survive the end of the term of the agreement. See #11 below.
6. Definitions
Like most legal contracts, a DPA will include a section defining essential terms when necessary. A definitions provision can help a Court interpreting the agreement if a dispute arises.
For example, due to the nature of the charges in the Baier case, that DPA includes definitions for terms like “Computer Network Attack” and “Computer Network Exploitation,” uncommon terms particular to the nature of that case.
7. Specific Restrictions
A DPA can include many restrictions on defendants’ conduct during or even after the term, including employment restrictions. Such is the case in the Baier case DPA, which specifically requires that “the defendants shall resign from any employment, consulting, teaching, contracting, or sub-contracting relationship with any and all United Arab Emirates (UAE) intelligence, law enforcement, military, or defense entities and persons (including government agencies, officials, rulers, and their families), companies – including subcontractors – with contracts with UAE intelligence, law enforcement, military, or defense entities, and any associated, related, or successor entities.“
Employment restrictions are not uncommon in white-collar DPA cases.
CONCLUSION
In some criminal cases, a deferred prosecution agreement (or DPA) could be a defendant’s best possible outcome. The DOJ will defer prosecution and provide defendants a chance to get the charges dismissed. If defendants breach the DPA and the government prosecutes, the DOJ has built into the DPA additional advantages for any future prosecution. A breach of the DPA or a new crime can therefore be extremely costly. For this reason, we encourage defendants to understand the terms of their DPAs fully and have a process in place to ensure full compliance.
Prison Professors, an Earning Freedom company, regularly helps clients locate and vet experienced criminal defense counsel to assist with Deferred Prosecution Agreements and other criminal defense matters. We also assist clients in crafting sentencing mitigation strategies to obtain better outcomes. Follow the Prison Professors blog for PART 2: Top Terms In A Federal Deferred Prosecution Agreement.
