I 

111TH CONGRESS 

1ST SESSION H. R. 1947 

To regulate certain deferred prosecution agreements and nonprosecution 

agreements in Federal criminal cases. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 2, 2009 

Mr. PASCRELL (for himself, Mr. PALLONE, Mr. COHEN, and Ms. LINDA T. 

SA ́NCHEZ of California) 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 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Accountability in De5 ferred Prosecution Act of 2009’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act— 

8 (1) the term ‘‘deferred prosecution agreement’’ 

9 means an agreement between a Federal prosecutor 

10 and an organization to conditionally defer prosecuVerDate Nov 24 2008 00:33 Apr 07, 2009 Jkt 079200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1947.IH H1947

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1 tion of that organization in a criminal case in which 

2 charges are filed; 

3 (2) the term ‘‘nonprosecution agreement’’ 

4 means an agreement between a Federal prosecutor 

5 and an organization to conditionally decide not to 

6 file criminal charges against the organization; 

7 (3) the term ‘‘organization’’ means a person or 

8 entity other than an individual; and 

9 (4) the term ‘‘independent monitor’’ means a 

10 person or entity outside the Department of Justice 

11 that is selected to oversee the implementation of a 

12 deferred prosecution agreement or nonprosecution 

13 agreement. 

14 SEC. 3. LEGAL EQUIVALENCE OF NONPROSECUTION 

15 AGREEMENT AND DEFERRED PROSECUTION 

16 AGREEMENT. 

17 A nonprosecution agreement shall be subject to all 

18 the requirements this Act and other law imposes on de19 ferred prosecution agreements. 

20 SEC. 4. ADMINISTRATIVE GUIDELINES ON AGREEMENTS. 

21 (a) IN GENERAL.—In order to promote uniformity 

22 and to assist prosecutors and organizations as they nego23 tiate and implement deferred prosecution agreements and 

24 nonprosecution agreements, the Attorney General shall, 

25 not later than 90 days after the date of the enactment 


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1 of this Act, issue public written guidelines for deferred 

2 prosecution agreements and nonprosecution agreements. 

3 (b) MATTERS GUIDELINES TO COVER.—The guide4 lines issued under this section shall provide direction in 

5 the following areas: 

6 (1) The circumstances in which an independent 

7 monitor is warranted for the agreement, the duties 

8 and authority of such a monitor, and to whom the 

9 monitor owes those duties. 

10 (2) What terms and conditions are appropriate 

11 in the agreement, including when, whether, and the 

12 degree to which Federal prosecutors should seek 

13 monetary penalties, restitution, civil settlements, and 

14 post-monitoring conditions. 

15 (3) Whether the agreement should include some 

16 or all of the requirements of section 8B2.1 of the 

17 United States Sentencing Guidelines for compliance 

18 and ethics programs. 

19 (4) The process by which the Department of 

20 Justice decides that the organization has success21 fully satisfied the terms of the agreement. 

22 (5) The manner and method for determining a 

23 breach of the agreement. 

24 (6) The extent of joint involvement of regu25 latory agencies in connection with the agreement 


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1 and the division of responsibilities with those agen2 cies. 

3 (7) The period during which the agreement 

4 should remain in effect. 

5 (8) What constitutes the cooperation, if any, re6 quired by the agreement from the organization and 

7 its employees with respect to any ongoing criminal 

8 investigations, including the length of the obligation 

9 to cooperate. 

10 (9) When and why it would be appropriate for 

11 Federal prosecutors to enter into a nonprosecution 

12 agreement rather than a deferred prosecution agree13 ment. 

14 SEC. 5. SELECTION AND COMPENSATION OF INDEPENDENT 

15 MONITORS OF AGREEMENTS. 

16 (a) RULES FOR SELECTION OF MONITORS.—The At17 torney General shall establish rules for the selection of 

18 independent monitors in connection with deferred prosecu19 tion agreements. 

20 (b) NATIONAL LIST OF POSSIBLE MONITORS.—Such 

21 rules shall provide for the creation of a national list of 

22 organizations and individuals who have the expertise and 

23 specialized skills necessary to serve as independent mon24 itors. The Attorney General shall place the list on the pub25 lic website of the Department of Justice. 


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1 (c) OPEN SELECTION PROCESS.—Such rules shall 

2 also provide for an open, public, and competitive process 

3 for the selection of such monitors. The Department of 

4 Justice shall, subject to the approval of the court, appoint 

5 the independent monitor from the national list created 

6 under this section. 

7 (d) COMPENSATION.—The Attorney General shall es8 tablish a fee schedule for the compensation of independent 

9 monitors and their support staff, and place that fee sched10 ule on the public website of the Department of Justice. 

11 Before a deferred prosecution agreement that entails mon12 itoring is entered into, this schedule shall also be provided 

13 to each organization that is to be monitored pursuant to 

14 that agreement. 

15 SEC. 6. RESTRICTIONS RELATING TO AGREEMENTS. 

16 (a) PAYMENTS TO UNRELATED THIRD PARTIES.— 

17 A deferred prosecution agreement shall not require an or18 ganization to pay money to a third party, other than a 

19 monitor or the monitor’s staff, if the payment is unrelated 

20 to the harm caused by the defendant’s conduct that is the 

21 basis for the agreement. 

22 (b) IMPARTIALITY IN SELECTION OF INDEPENDENT

23 MONITORS.—Attorneys who are or might participate in 

24 the prosecution of the case against an organization to be 

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1 pendent monitor, other than suggesting qualifications for 

2 the monitor. 

3 (c) TREATMENT OF VIOLATIONS AS CONFLICTS OF

4 INTEREST.—The Attorney General shall take appropriate 

5 steps to treat a violation of this section as a conflict of 

6 interest and to remedy any such conflicts of interest. 

7 SEC. 7. JUDICIAL OVERSIGHT OF AGREEMENTS. 

8 (a) COURT APPROVAL OF AGREEMENT.—The Gov9 ernment shall file each deferred prosecution agreement in 

10 an appropriate United States district court. The court 

11 shall approve the agreement if the court determines the 

12 agreement is consistent with the guidelines for such agree13 ments and is in the interests of justice. The agreement 

14 shall take effect on the approval of the court. 

15 (b) QUARTERLY REPORTS.—Each party to the agree16 ment and any independent monitor required under the 

17 agreement shall submit to the court in which the agree18 ment is filed quarterly reports on the progress made to19 ward the completion of the agreement, and describing any 

20 concern the filer has about the implementation of the 

21 agreement. In the final quarterly report, the independent 

22 monitor shall include a full and itemized statement of the 

23 work done and the compensation earned for that work. 

24 (c) COURT REVIEW.—The court shall, on motion of 

25 any party or the independent monitor if there is one, reVerDate Nov 24 2008 00:33 Apr 07, 2009 Jkt 079200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1947.IH H1947

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1 view the implementation or termination of the agreement, 

2 and take any appropriate action, to assure that the imple3 mentation or termination is consistent with the interests 

4 of justice. 

5 SEC. 8. PUBLIC DISCLOSURE RELATING TO DEFERRED 

6 PROSECUTION AGREEMENTS. 

7 (a) DISCLOSURE ON DEPARTMENT OF JUSTICE

8 WEBSITE.—Upon the taking effect of a deferred prosecu9 tion agreement, the Attorney General shall place the text 

10 of the agreement on the public website of the Department 

11 of Justice, together with all the terms and conditions of 

12 any agreement or understanding between an independent 

13 monitor appointed pursuant to that agreement and the or14 ganization monitored. 

15 (b) EXCEPTIONS APPROVED BY COURT.—Subject to 

16 the limitation in subsection (c), the court may, upon peti17 tion of any interested party, approve an exception to the 

18 requirements of this section for good cause shown. Good 

19 cause includes that the information proposed to be ex20 cepted from the requirements is proprietary, confidential, 

21 or a trade secret. 

22 (c) MINIMUM DISCLOSURE.—The court may not ap23 prove an exception from the requirements of this section 

24 for the fact that the deferred prosecution agreement has 

25 been filed with the court, the name of the organization 


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1 to which it pertains, or the identity and financial terms 

2 agreed upon with respect to any independent monitor cho3 sen in connection with the agreement. 

Æ 


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