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A deferred prosecution agreement is a good possible outcome to resolve criminal charges when non-prosecution is not available.
TOP TERMS IN A FEDERAL DEFERRED PROSECUTION AGREEMENT (PART 3)
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.
RECAP PART 2
Part 2 covers:
KEY TERMS 8-13
1. Agreement to Criminal Charges and Factual Statement
2. Agreement to Waive Constitutional Right to Indictment
3. Agreement to Selected Venue
4. Admission of Factual Statement
5. Term of the Agreement
6. Definitions
7. Agreement to Specific Restrictions (Employment)
8. Employment Disclosures & Prior Approval Requirements
9. Cooperation Requirements
10. Financial Disclosure Requirements
11. Other Assurances
12. Monetary Penalties
13. Deferral of Prosecution
PART 3: TOP TERMS IN A FEDERAL DEFERRED PROSECUTION AGREEMENT
The next key term is #14, Conditional Release From Liability.
14. Conditional Release From Liability
The DOJ requires this type of provision to reserve the right to use information obtained in an underlying criminal case against the defendants for other reasons, including possible criminal prosecutions.
For example, in the Baier DPA case, each defendant agrees that:
The “[government] may use any information related to the conduct described in the Statement of Facts against the defendants:
(a) in a prosecution for perjury or obstruction of justice;
(b) in a prosecution for making a false statement;
(c) in a prosecution or other proceeding relating to any crime of
violence; or
(d) in a prosecution or other proceeding relating to a violation of any provision of Title 26 of the United States Code 24″ (covers IRS and taxes).
The DOJ will also exclude from a DPA protection for any other criminal or civil matter and protection against prosecution for any future conduct by the defendants.
15. Use of Defendants’ Statements During Cooperation
As noted above, a DPA does not protect a defendant from prosecution for future criminal conduct. In that case, defendants can get a provision in the DPA limiting the use against them of any statements they made as part of their cooperation agreement. However, the DOJ would be able to use such information to pursue other evidence, or refute defendants’ arguments, or cross-examine them if they testify in a future case.
As noted earlier, the DOJ takes full advantage of a DPA to streamline what defendants can challenge should there be a future prosecution against them.
16. Breach of the Agreement
We know that the DPA remains in force absent a breach. This provision sets forth some of the circumstances under which the DOJ might declare a breach:
(a) commit a felony under United States federal law;
(b) provide intentionally false, incomplete, or misleading information;
(c) knowingly and materially fail to cooperate as required in the agreement; or
(d) fail to completely perform or fulfill each of the obligations under the agreement.
Remember that only the DOJ gets to determine if a defendant committed a breach. The following provision regarding admissible evidence further supports this point.
17. Admissible Evidence
A defendant who breaches the DPA and faces prosecution can end up materially worse off. All of the provisions limiting defendants’ rights in a subsequent prosecution are part of the price defendants have to pay for getting the deferral and subsequently breaching. For this reason, we encourage defendants to understand the terms of their DPAs fully and have a process in place to ensure full compliance.
Consider the following provision from the Baier case DPA:
“In the event that the [DOJ determines] that a defendant has knowingly and materially breached this Agreement:
“(a) all statements made by or on behalf of the defendants to
the [DOJ] or to the Court, including the attached Factual Statement, all statements made by the defendants to the FBI (including during the Term), and any testimony given by the defendants before a grand jury, a court, or any tribunal, or at any legislative hearings, whether prior or
subsequent to this Agreement, and any leads derived from such statements or testimony, shall be admissible in evidence in any and all criminal proceedings brought by the [DOJ] against any of
the defendants; and
(b) the defendant shall not assert any claim under the United States
Constitution, Rule 11(f) of the Federal Rules of Criminal Procedure, Rule 410 of the Federal Rules of Evidence, or any other federal rule that any such statements or testimony made by or on behalf of the defendant prior or subsequent to this Agreement, or any leads derived therefrom, should be suppressed or are otherwise inadmissible.“
A provision like this renders all of a defendant’s prior statements, the statements in the charging documents, etc., automatically admissible against them in a subsequent trial caused by a breach or a new crime. Eliminating the rules that govern what evidence prosecutors can present in a criminal trial takes away one of the main tools defendants have to use at trial.
18. New Violations of Law & Future Conduct
The DOJ will generally reserve the right to charge defendants with new violations of law based on future conduct. DOJ also notes that they can charge the defendants with false statements and obstruction of justice if they provide false information to the government.
19. Sentence
Another standard provision requires defendants to acknowledge that the government has made no sentencing deal or provided any assurances or representations regarding sentencing. Should a sentencing hearing become necessary, this provision reaffirms the Court’s role to decide on the imposition of a sentence.
20. Public Statements
Often, the DOJ will demand a provision in which defendants expressly agree not to undermine or contradict the facts described in the factual statement attached to the DPA and filed with the Court. This restriction applies to anyone acting on behalf of the defendants as well, including lawyers. Any such contradictory statement is considered a breach of the deferred prosecution agreement subjecting the defendants to immediate prosecution.
21. All or Nothing
When there are multiple defendants, the DOJ may require that all defendants agree to the DPA as a condition of the deal. Unless all defendants agree (which means the case will have to proceed in Court against some defendants anyway), the DOJ can retract the DPA offer.
22. Other Prosecutions
In this provision, the DOJ explicitly reserves the rights of other federal and state agencies to proceed criminally, civilly, or administratively against defendants.
For access to the full text of the Deferred Prosecution Agreement in the Baier case: Click Here.
CONCLUSION
When a non-prosecution agreement is unavailable to resolve a federal criminal case, a deferred prosecution agreement (or DPA) could be the next best possible outcome. The DOJ will defer prosecution and provide defendants a chance to get 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 be exceedingly 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.
Federal deferred prosecution agreements are serious business. Anyone entering into a DPA with the federal government must understand all of the ramifications.
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.
Another Prison Professors Blog post is available here: NON-PROSECUTION & DEFERRED PROSECUTION AGREEMENTS.
