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. On the other hand, the nature and circumstances of the offense, the identity of the offender or the victim, or the attendant publicity, may be such as to create strong public sentiment in favor of prosecution. Foreign Murder of United States Nationals (18 U.S.C. v Anderson, 55 F.Supp.2d 1163 (D. Kan 1999); United States v. Smith, 992 F. Supp. 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. 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. 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. Written agreements will facilitate efforts by the Department to monitor compliance by prosecutors with Department policies and the guidelines. Enter to open, tab to navigate, enter to select, https://content.next.westlaw.com/practical-law/document/Ic6a0c1740fec11e598db8b09b4f043e0/Non-Prosecution-Agreement-NPA?viewType=FullText&transitionType=Default&contextData=(sc.Default). 1425 and 18 U.S.C. Consequently, it is often preferable to have a jury resolve the factual and legal dispute between the government and the defendant, rather than have government attorneys encourage defendants to plead guilty under circumstances that the public might regard as questionable or unfair. As discussed in JM 9-27.500 and JM 9-16.000, there are serious objections to such pleas and they should be opposed unless the appropriate Assistant Attorney General concludes that the circumstances are so unusual that acceptance of such a plea would be in the public interest. Prior consultation or approval would be required by a statute or by Departmental policy for a declination of prosecution or dismissal of a charge with regard to which the agreement is to be made; or. Neither this statement of principles nor any internal procedures adopted by individual offices create any rights or benefits. In addition to reviewing the concerns that prompted the decision to prosecute in the first instance, particular attention should be given to the need to ensure that the prosecution will be both fair and effective. For example, in a civil rights case or a case involving an extremely popular political figure, it might be clear that the evidence of guiltviewed objectively by an unbiased factfinderwould be sufficient to obtain and sustain a conviction, yet the prosecutor might reasonably doubt, based on the circumstances, that the jury would convict. As is the case with guilty pleas generally, if such a plea to fewer than all the charges is tendered and accepted over the government's objection, the attorney for the government should proceed to trial on any remaining charges not barred on double jeopardy grounds unless the United States Attorney, or in cases handled by Departmental attorneys, the appropriate Assistant Attorney General, approves dismissal of those charges No amount of investigative effort warrants commencing a federal prosecution that is not fully justified on other grounds. SAP will provide the Offices with copies ofthose audits and 2. Mixed Agreements. These precautions should minimize the effectiveness of any subsequent efforts by the defendant to portray himself/herself as technically liable, but not seriously culpable. 
This does not mean, of course, that the prosecutor should not cooperate in making arrangements with the Marshal's Service necessary for the protection of the witness in appropriate cases. 3553(a). A .gov website belongs to an official government organization in the United States. 743 (D.N.J. In weighing the adequacy of such an alternative in a particular case, the prosecutor should consider the nature and severity of the sanctions or other measures that could be imposed, the likelihood that an adequate sanction would in fact be imposed, and the effect of such a non-criminal disposition on federal law enforcement interests. Using the advisory guidelines as a touchstone, the attorney for the government should seek sentences that reflect an appropriate balance of the factors set forth in 3553. There are also considerations that deserve no weight and should not influence the decision, such as the time and resources already expended in federal investigation of the case. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify thatan attorney for the government will: Three types of plea agreements are encompassed by the language of JM 9-27.400: 1) agreements whereby in return for the defendant's plea to a charged offense or to a lesser or related offense, other charges are not sought or are dismissed ("charge agreements"); 2) agreements pursuant to which the government takes a certain position regarding the sentence to be imposed ("sentence agreements"); and 3) agreements that combine a plea with a dismissal of charges and an undertaking by the prosecutor concerning the government's position at sentencing ("mixed agreements"). Comment. 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. JM 9-27.200sets forth the courses of action available to the attorney for the government once he/she concludes that there isprobable cause to believe that a person has committed a federal offense within his/her jurisdiction. 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. The attorney for the government should recognize that not all of the factors set forth in 3553 may be relevant or of equal importance in every case and that, for a particular offense committed by a particular offender, one of the purposes, or a combination of purposes, may be of overriding importance.3. 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. It is left to the judgment of the attorney for the government to determine whether these circumstances exist. This is, of course, a threshold consideration only. 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. 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. The attorney for the government should disclose to defense counsel, reasonably in advance of the sentencing hearing, any factual material not reflected in the presentence investigation report that he/she intends to bring to the attention of the court. This is more complicated than a bargain involving a sentence within a guideline range. 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. 
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. The provisions set forth hereafter describe the conditions that should be met before such an agreement is made, as well as the procedures recommended for such cases. Typically, however, a defendant will have committed more than one criminal act and his/her conduct may be prosecuted under more than one statute. In many instances, it may be possible to prosecute criminal conduct in more than one jurisdiction. Recommendations Required by Plea Agreements. Stipulations to untrue facts are unethical. Under Rule 11(b)(3), the court must be satisfied that there is "a factual basis" for a guilty plea. The SECs order finds that senior Petrobras executives worked with Petrobrass largest contractors and suppliers to inflate the cost of Petrobrass infrastructure projects by billions of dollars. First, prosecutors may bargain for a sentence that is within the specified United States Sentencing Commission's guideline range. Plea bargaining, both charge bargaining and sentence bargaining, must reflect the totality and seriousness of the defendant's conduct and any departure to which the prosecutor is agreeing, and must be accomplished through appropriate sentencing guidelines provisions. Bill Cosby prosecutor: 'I was in complete disbelief' when he was freed. And the government's position during the sentencing process will help ensure that the court imposes a sentence consistent with 18 U.S.C. An official website of the United States government. This requirement is addressed in JM 9-27.400. 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