110 HR 6492 IH: Accountability in Deferred Prosecution U.S. House of Representatives 2008-07-15 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

I 110th CONGRESS 2d Session H. R. 6492 IN THE HOUSE OF REPRESENTATIVES July 15, 2008 Mr. Pascrell (for himself, Mr. Pallone, Ms. Linda T. Sánchez of California, and Mr. Conyers) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To regulate certain deferred prosecution agreements and nonprosecution agreements in Federal criminal cases.

1.

Short title

This Act may be cited as the Accountability in Deferred Prosecution Act of 2008.

2.

Definitions

In this Act— (1)the term deferred prosecution agreement means an agreement between a Federal prosecutor and an organization to conditionally defer prosecution of that organization in a criminal case in which charges are filed; (2)the term nonprosecution agreement means an agreement between a Federal prosecutor and an organization to conditionally decide not to file criminal charges against the organization; (3)the term organization means a person or entity other than an individual; and (4)the term independent monitor means a person or entity outside the Department of Justice that is selected to oversee the implementation of a deferred prosecution agreement or nonprosecution agreement.

3.

Legal equivalence of nonprosecution agreement and deferred prosecution agreement

A nonprosecution agreement shall be subject to all the requirements this Act and other law imposes on deferred prosecution agreements.

4.

Administrative guidelines on agreements

(a)

In general

In order to promote uniformity and to assist prosecutors and organizations as they negotiate and implement deferred prosecution agreements and nonprosecution agreements, the Attorney General shall, not later than 90 days after the date of the enactment of this Act, issue public written guidelines for deferred prosecution agreements and nonprosecution agreements. (b)

Matters guidelines To cover

The guidelines issued under this section shall provide direction in the following areas: (1)The circumstances in which an independent monitor is warranted for the agreement, the duties and authority of such a monitor, and to whom the monitor owes those duties. (2)What terms and conditions are appropriate in the agreement, including when, whether, and the degree to which Federal prosecutors should seek monetary penalties, restitution, civil settlements, and post-monitoring conditions. (3)Whether the agreement should include some or all of the requirements of section 8B2.1 of the United States Sentencing Guidelines for compliance and ethics programs. (4)The process by which the Department of Justice decides that the organization has successfully satisfied the terms of the agreement. (5)The manner and method for determining a breach of the agreement. (6)The extent of joint involvement of regulatory agencies in connection with the agreement and the division of responsibilities with those agencies. (7)The period during which the agreement should remain in effect. (8)What constitutes the cooperation, if any, required by the agreement from the organization and its employees with respect to any ongoing criminal investigations, including the length of the obligation to cooperate. (9)When and why it would be appropriate for Federal prosecutors to enter into a nonprosecution agreement rather than a deferred prosecution agreement.

5.

Selection and compensation of independent monitors of agreements

(a)

Rules for selection of monitors

The Attorney General shall establish rules for the selection of independent monitors in connection with deferred prosecution agreements. (b)

National list of possible monitors

Such rules shall provide for the creation of a national list of organizations and individuals who have the expertise and specialized skills necessary to serve as independent monitors. The Attorney General shall place the list on the public website of the Department of Justice. (c)

Open selection process

Such rules shall also provide for an open, public, and competitive process for the selection of such monitors. The Department of Justice shall, subject to the approval of the court, appoint the independent monitor from the national list created under this section. (d)

Compensation

The Attorney General shall establish a fee schedule for the compensation of independent monitors and their support staff, and place that fee schedule on the public website of the Department of Justice. Before a deferred prosecution agreement that entails monitoring is entered into, this schedule shall also be provided to each organization that is to be monitored pursuant to that agreement.

6.

Restrictions relating to agreements

(a)

Payments to unrelated third parties

A deferred prosecution agreement shall not require an organization to pay money to a third party, other than a monitor or the monitor’s staff, if the payment is unrelated to the harm caused by the defendant’s conduct that is the basis for the agreement. (b)

Impartiality in selection of independent monitors

Attorneys who are or might participate in the prosecution of the case against an organization to be monitored shall have no role in the selection of the independent monitor, other than suggesting qualifications for the monitor. (c)

Treatment of violations as conflicts of interest

The Attorney General shall take appropriate steps to treat a violation of this section as a conflict of interest and to remedy any such conflicts of interest.

7.

Judicial oversight of agreements

(a)

Court approval of agreement

The Government shall file each deferred prosecution agreement in an appropriate United States district court. The court shall approve the agreement if the court determines the agreement is consistent with the guidelines for such agreements and is in the interests of justice. The agreement shall take effect on the approval of the court. (b)

Quarterly reports

Each party to the agreement and any independent monitor required under the agreement shall submit to the court in which the agreement is filed quarterly reports on the progress made toward the completion of the agreement, and describing any concern the filer has about the implementation of the agreement. In the final quarterly report, the independent monitor shall include a full and itemized statement of the work done and the compensation earned for that work. (c)

Court review

The court shall, on motion of any party or the independent monitor if there is one, review the implementation or termination of the agreement, and take any appropriate action, to assure that the implementation or termination is consistent with the interests of justice.

8.

Public disclosure relating to deferred prosecution agreements

(a)

Disclosure on Department of Justice website

Upon the taking effect of a deferred prosecution agreement, the Attorney General shall place the text of the agreement on the public website of the Department of Justice, together with all the terms and conditions of any agreement or understanding between an independent monitor appointed pursuant to that agreement and the organization monitored. (b)

Exceptions approved by court

Subject to the limitation in subsection (c), the court may, upon petition of any interested party, approve an exception to the requirements of this section for good cause shown. Good cause includes that the information proposed to be excepted from the requirements is proprietary, confidential, or a trade secret. (c)

Minimum disclosure

The court may not approve an exception from the requirements of this section for the fact that the deferred prosecution agreement has been filed with the court, the name of the organization to which it pertains, or the identity and financial terms agreed upon with respect to any independent monitor chosen in connection with the agreement.