GAO 

United States Government Accountability Office

Report to Congressional Requesters

CORPORATE CRIME

DOJ Has Taken Steps 

to Better Track Its Use 

of Deferred and NonProsecution 

Agreements, but 

Should Evaluate 

Effectiveness 

December 2009 

GAO-10-110 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

December 2009

CORPORATE CRIME

DOJ Has Taken Steps to Better Track Its Use of 

Deferred and Non-Prosecution Agreements, but 

Highlights of GAO-10-110, a report to Should Evaluate Effectiveness

congressional requesters 

Recent cases of corporate fraud 

and mismanagement heighten the 

Department of Justice’s (DOJ) need 

to appropriately punish and deter 

corporate crime. Recently, DOJ has 

made more use of deferred 

prosecution and non-prosecution 

agreements (DPAs and NPAs), in 

which prosecutors may require 

company reform, among other 

things, in exchange for deferring 

prosecution. In June and November 

2009, GAO testified on DOJ’s use 

and oversight of DPAs and NPAs, 

and this report discusses additional 

findings, including (1) the extent to 

which DOJ has used DPAs and 

NPAs to address corporate 

misconduct and tracks use of these 

agreements, (2) the extent to which 

DOJ measures the effectiveness of 

DPAs and NPAs, and (3) the role of 

the court in the DPA and NPA 

process. GAO examined 152 DPAs 

and NPAs negotiated from 1993 

through September 2009 and 

analyzed DOJ data on corporate 

prosecutions in fiscal years 2004 

through 2009. GAO also 

interviewed DOJ officials, 

prosecutors from 13 DOJ offices, 

20 company representatives, 11 

monitors who oversee company 

compliance, and 12 federal judges. 

While not generalizable, these 

results provide insight into 

decisions about DPAs and NPAs. 

What GAO Recommends

GAO recommends that DOJ 

develop performance measures to 

assess the effectiveness of DPAs 

and NPAs. DOJ agreed with our 

recommendation. 

Since fiscal year 2004, the number of DPAs and NPAs has generally been less 

than the number of corporate prosecutions, and in 2009, DOJ began tracking 

its use of these agreements. DOJ has made more frequent use of DPAs and 

NPAs in recent years, entering into four agreements in fiscal year 2003 

compared to a high of 38 agreements in fiscal year 2007, although use declined 

in fiscal years 2008 and 2009 when DOJ entered into 24 and 23 agreements, 

respectively. The U.S. Attorneys Offices (USAO) and DOJ’s Criminal Division 

entered into the vast majority of agreements. From fiscal years 2004 to 2009, 

for USAOs, the number of DPAs and NPAs was less than the number of 

corporate prosecutions, whereas for the Criminal Division, the number of 

DPAs and NPAs was comparable to the number of corporate prosecutions. 

Prior to 2009, DOJ did not have a mechanism to centrally track its use of DPAs 

and NPAs, which inhibited its ability to accurately report the number and 

terms of the agreements to the Congress and the public. However, in response 

to GAO’s requests for information, DOJ has recently taken steps to better 

track its use of DPAs and NPAs, steps that will allow it to more accurately 

report on the number and terms of DPAs and NPAs to Congress and the public 

and identify best practices and ensure consistency across agreements. 

DOJ lacks performance measures to assess how DPAs and NPAs contribute to 

its efforts to combat corporate crime. Two possible measures of DPA and 

NPA effectiveness could be (1) whether the company repeats the criminal 

behavior either during or after its agreement; or (2) whether the company 

successfully implements the terms of the agreement; implementation could be 

a proxy measure for whether the company reformed because DPAs and NPAs 

often require companies to make improvements in internal controls, 

compliance programs, or training to detect and prevent future wrongdoing. By 

developing performance measures to evaluate DPAs and NPAs, DOJ will be 

better positioned to gauge whether they are effective tools in deterring and 

combating corporate crime. 

The Speedy Trial Act allows judges to approve the deferral of prosecution 

pursuant to a written agreement between the government and the defendant, 

for the purpose of allowing the defendant to demonstrate its good conduct; 

however, the law does not otherwise specify judicial involvement in the DPA 

process. GAO obtained responses from 12 U.S. district and magistrate judges 

who handled cases involving a DPA, and these judges reported they were 

generally not involved in the DPA process. Prosecutors, company 

representatives, monitors, and judges with whom GAO spoke more frequently 

cited disadvantages to greater judicial involvement—such as the lack of time 

and resources available to judges and concerns about the separation of 

powers and constitutionality of increased judicial involvement—than 

advantages to such involvement—such as the court’s ability to act as an 

independent arbiter of disputes, increased transparency in the DPA process, 

and decreased perceptions of favoritism in selecting the monitor. View GAO-10-110 or key components.

For more information, contact Eileen Larence 

at (202) 512-8777 or larencee@gao.gov. 
Page i GAO-10-110 

Contents 

Letter 1

Background 9 

The Number of DPAs and NPAs Has Generally Been Less Than the 

Number of Corporate Prosecutions, and DOJ Recently Began 

Tracking Its Use of These Agreements 13 

DOJ Lacks Performance Measures to Evaluate How DPAs and 

NPAs Contribute to Its Strategic Objective to Combat Corporate 

Crime 20 

Courts Generally Had Limited Involvement in the DPA Process, 

and Prosecutors, Company Officials, Monitors, and Judges More 

Frequently Cited Disadvantages Than Advantages to Greater 

Court Involvement 25 

Conclusions 28 

Recommendation for Executive Action 29 

Agency Comments and Our Evaluation 29 

Appendix I Terms of 57 DPAs and NPAs Reviewed and Discussed 

in June 2009 Testimony 33 

Appendix II Number of DPAs and NPAs by Each U.S. Attorney’s 

Office and DOJ Litigating Division 34 

Appendix III Comments from the Department of Justice 36 

Appendix IV Comments from the Administrative Office of the 

U.S. Courts 41 

Appendix V GAO Contact and Staff Acknowledgments 42 

 DOJ's Use of Deferred and Non-Prosecution Agreements 
Tables 

Table 1: Number of Corporate Criminal Prosecutions to Each DPA 

or NPA Entered into by USAOs and the Criminal Division 

from Fiscal Year 2004 to Fiscal Year 2009 16 

Table 2: Number of DPAs and NPAs Entered into by Each U.S. 

Attorney’s Office (USAO) 34 

Table 3: Number of DPAs and NPAs Entered into by Each DOJ 

Litigating Division 35 

Figures 

Figure 1: How the Principles of Federal Prosecution of Business 

Organizations Influence Prosecutors’ Decisions to Decline 

Prosecution, Enter into a DPA or NPA, or Prosecute of the 

offense 10 

Figure 2: Number of DPAs and NPAs Entered Into by DOJ, per 

Fiscal Year 14 

Abbreviations 

ACTS Automated Case Tracking System 

AOUSC Administrative Office of the U.S. Courts 

DOJ Department of Justice 

DPA deferred prosecution agreement 

EOUSA Executive Office for United States Attorneys 

JMD Justice Management Division 

LIONS Legal Information Office Network System 

LCMS Litigation Case Management System 

NPA non-prosecution agreement 

ODAG Office of the Deputy Attorney General 

USAO U.S. Attorneys Offices 

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Page ii GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
Page 1 GAO-10-110 

 

United States Government Accountability Office

Washington, DC 20548 

 

December 18, 2009 

Congressional Requesters 

According to the Department of Justice (DOJ), one of its chief missions is 

to ensure the integrity of the nation’s business organizations and protect 

the public from corporate corruption. In light of this goal, DOJ has 

prosecuted company executives and employees, as well as companies 

themselves, for crimes such as tax evasion, securities fraud, health care 

fraud, and bribery of foreign officials, among other illegal activities. 

However, over the past decade, DOJ has recognized the potentially 

harmful effects that criminally prosecuting a company can have on 

investors, employees, pensioners, and customers who were uninvolved in 

the company’s criminal behavior. In particular, the failure of the 

accounting firm Arthur Andersen, and the associated loss of thousands of 

jobs following its indictment and conviction for obstruction of justice for 

destroying Enron-related records,1

 has been offered as a prime example of 

the potentially harmful effects of criminally prosecuting a company. To 

avoid serious harm to innocent third parties and as an alternative to 

criminal prosecution or declining to prosecute, DOJ guidance allows 

prosecutors to negotiate agreements—referred to as deferred prosecution 

(DPA) and non-prosecution (NPA) agreements. These agreements may 

require companies to institute or reform corporate ethics and compliance 

programs,2

 pay restitution to victims, and cooperate with ongoing 

investigations of individuals in exchange for prosecutors’ deferring the 

decision to prosecute. As part of DPAs and NPAs, prosecutors may also 

require a company to hire, at its own expense, an independent monitor to 

oversee the company’s compliance with the agreement. DOJ and 

companies have generally worked together to select monitors, but DOJ 

leaves it up to the company to enter into a contract with a monitor that 

specifies the monitor’s fees, among other things. 

1

 The conviction was ultimately overturned by the Supreme Court. Arthur Andersen LLP v. 

United States, 544 U.S. 696 (2005). In a unanimous decision, the Court held that the jury 

instructions used to convict Arthur Andersen were impermissibly flawed. Id. at 705-07. 

2

 The U.S. Sentencing Guidelines define a compliance and ethics program as “a program 

designed to prevent and detect criminal conduct.” U.S. Sentencing Guidelines Manual § 

8B2.1 cmt. n.1. 

 DOJ's Use of Deferred and Non-Prosecution Agreements 
 

DOJ views DPAs and NPAs as appropriate tools to use in cases where the 

goals of punishing and deterring criminal behavior, providing restitution to 

victims, and reforming otherwise law-abiding companies can be achieved 

without criminal prosecution. The use of these agreements and the 

associated monitors, however, is not without debate. Some commentators 

view the use of DPAs and NPAs as encouraging disrespect for the law and 

failing to deter corporate crime, and others have suggested a need to 

evaluate the effectiveness of DPAs and NPAs as a tool to combat such 

crime. Further, commentators have acknowledged monitors’ value in 

ensuring company compliance with the terms of DPAs and NPAs and in 

instituting corporate reform, but have also pointed to challenges 

associated with monitorships, such as concerns regarding potential 

favoritism in the monitor selection process and questions about monitor 

accountability, oversight, and costs. In addition, members of Congress 

have expressed interest in understanding the role of courts in selecting 

monitors and other aspects of DPAs and NPAs. 

Given the discussion surrounding these agreements, the Subcommittee on 

Commercial and Administrative Law, Committee on the Judiciary, House 

of Representatives, asked us to testify in June 2009 on DOJ’s use and 

oversight of DPAs and NPAs,3

 and in November 2009 on issues related to 

the selection and use of independent monitors in DPAs and NPAs.4

 We 

reported that DOJ determined whether or not to use DPAs and NPAs, and 

what the terms of these agreements should be, based on DOJ’s Principles 

of Federal Prosecution of Business Organizations,5

 as well as other factors 

 

3

 GAO, Corporate Crime: Preliminary Observations on DOJ’s Use and Oversight of 

Deferred Prosecution Agreements and Non-Prosecution Agreements, GAO-09-636T 

(Washington, D.C.: June 25, 2009). This statement provided preliminary observations on 

factors DOJ considered when entering into and setting the terms of the agreements, 

methods DOJ used to oversee companies’ compliance, the monitor selection process, and 

companies’ perspectives regarding the costs and role of the monitor. 

4

 GAO, Corporate Crime: Prosecutors Adhered to Guidance in Selecting Monitors for 

Deferred Prosecution and Non-Prosecution Agreements, but DOJ Could Better 

Communicate Its Role in Resolving Conflicts, GAO-10-260T (Washington, D.C.: Nov. 19, 

2009). This statement provided additional findings on the extent to which prosecutors 

adhered to DOJ guidelines regarding selecting monitors for DPAs and NPAs; what previous 

professional experience monitors had and what were company perspectives on monitors’ 

experience; and to what extent companies raised concerns about their monitors and 

whether DOJ has defined its role in resolving any concerns. 

5

 U.S. Department of Justice, United States Attorneys’ Manual § 9-28.000, Principles of 

Federal Prosecution of Business Organizations. 

Page 2 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

such as the Federal Sentencing Guidelines6 and negotiations with 

companies. In addition, we reported that DOJ employed several oversight 

mechanisms to ensure that companies were complying with the 

agreements, including the use of independent monitors, where monitors 

were typically required to file written reports with prosecutors on the 

companies’ progress in complying with the terms of their DPAs or NPAs. 

Also, we reported that DOJ generally took the lead in selecting monitors 

and varied in the extent to which it involved companies in monitor 

selection decisions. In cases where DOJ officials identified monitor 

candidates, they generally did so based on their personal knowledge of 

individuals whose reputations suggested they would be effective monitors, 

or through recommendations from colleagues or professional associates 

who were familiar with the requirements of a monitorship. We reported 

that for all 46 DPAs and NPAs where DOJ required independent monitors 

and the monitors had been selected, companies hired a total of 42 different 

individuals to oversee the agreements; 23 of the 42 monitors had previous 

experience working for DOJ—which some companies valued in a monitor 

choice—and those without prior DOJ experience had worked in other 

federal, state, or local government agencies, the private sector, or 

academia. 

While most of the companies we interviewed did not express concerns 

about monitors having prior DOJ experience, some companies raised 

general concerns about potential impediments to independence or 

impartiality if the monitor had previously worked for DOJ or had 

associations with DOJ officials. We reported that DOJ had acknowledged 

concerns about the cost to companies of hiring a monitor and perceived 

 

6

 Pursuant to the Sentencing Reform Act of 1984, the United States Sentencing Guidelines 

Manual (“Sentencing Guidelines”) was developed by the United States Sentencing 

Commission, an independent body within the judicial branch of the federal government 

charged with promulgating guidelines for federal sentencing. 28 U.S.C. § 994. In 2005, the 

Supreme Court found the Sentencing Guidelines, which had previously been binding for 

federal judges to follow in sentencing criminal defendants, to be advisory in nature. See 

United States v. Booker, 543 U.S. 220 (2005). Regardless of their advisory nature, judges 

are still required to calculate properly and consider the Sentencing Guidelines and other 

sentencing goals, and sentences properly calculated within the guidelines range are entitled 

to a presumption of reasonableness upon appellate review. See 18 U.S.C. § 3553(a); United 

States v. Rita, 551 U.S. 338, 347-48 (2007); Booker, 543 U.S. at 264: see also Gall v. United 

States, 552 U.S. 38, 49 (2007) (stating that “the Guidelines should be the starting point and 

the initial benchmark”). The Sentencing Guidelines contain promulgated sentencing 

guidelines, policy statements, and commentary applicable to business organizations, such 

as ranges and considerations for applying fines and requirements for an effective 

compliance and ethics program. See U.S. SENTENCING GUIDELINES MANUAL §§ 8B2.1, 

8C1.1-4.11. 

Page 3 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

favoritism in the selection of monitors, and thus the need to instill public 

confidence in the monitor selection process, and that DOJ had made 

efforts to allay these concerns by issuing guidance in March 2008—known 

as the Morford Memo—to help ensure that the monitor selection process 

is collaborative and merit-based.7

 We found that prosecutors had adhered 

to the Morford Memo guidance in selecting monitors required under 

agreements entered into between March 2008 and September 2009. 

However, we also found that prosecutors or the Office of the Deputy 

Attorney General (ODAG) were not fully documenting the steps they took 

to select monitors, and we recommended that the Deputy Attorney 

General adopt internal procedures to document both the process used and 

reasons for monitor selection decisions to avoid the appearance of 

favoritism and instill public confidence in monitor selection. In August 

2009, DOJ established such procedures. 

Lastly, we reported that companies we spoke with identified concerns 

about the monitor’s cost, scope, and amount of work completed, and that 

DOJ had not clearly communicated to companies its role in addressing 

such concerns. Given that DOJ relies on monitors to assess companies’ 

compliance with DPAs and NPAs, clearly communicating to companies the 

role DOJ will play in addressing companies’ disputes with monitors would 

help increase awareness among companies and better position DOJ to be 

notified of potential issues related to monitor performance. We 

recommended in our November 2009 testimony that the Attorney General 

direct all litigating components and U.S. Attorneys Offices to explain in 

each corporate DPA or NPA what role DOJ could play in resolving such 

disputes, given the facts and circumstances of the case.8

 

7

 Deputy Attorney General Craig Morford, DOJ, Selection and Use of Monitors in Deferred 

Prosecution Agreements and Non-Prosecution Agreements with Corporations (Mar. 7, 

2008). The Morford Memo requires U.S. Attorneys Offices and other DOJ litigation divisions 

to establish ad-hoc or standing committees, consisting of the office’s ethics advisor, 

criminal or section chief, and at least one other experienced prosecutor, to consider the 

candidates—which may be proposed by either prosecutors, companies, or both—for each 

monitorship. DOJ components are also reminded to follow federal conflict-of-interest 

guidelines and to check monitor candidates for potential conflicts-of-interest relationships 

with the company. In addition, the names of all selected monitors must be submitted to the 

Office of the Deputy Attorney General (ODAG) for final approval. 

8

 DOJ did not comment as to whether they agreed or disagreed with this recommendation, 

but provided technical comments related to the recommendation, which we incorporated 

in the statement as appropriate. 

Page 4 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

In this report, we discuss additional findings since our testimonies on 

aspects related to DOJ’s use and oversight of DPAs and NPAs and the role 

of the judiciary, including: (1) the extent to which DOJ has used DPAs and 

NPAs to address corporate misconduct and tracks its use of these 

agreements, (2) whether and how DOJ measures the extent to which DPAs 

and NPAs have contributed to DOJ’s efforts to combat corporate crime, 

and (3) the role the court has played in the DPA and NPA process, and the 

role select prosecutors, companies, monitors, and representatives from 

the judiciary believe the courts should play. 

To address all 3 objectives, we identified 152 DPAs and NPAs that DOJ 

prosecutors had negotiated from 1993 (when the first two were signed) 

through September 2009 (which was the end of our review period), and 

reviewed copies of all but one of the agreements.9

 Because DOJ did not 

begin to centrally track all DPAs and NPAs until 2009, we used four 

sources to identify all of the agreements. First, in May 2008, DOJ provided 

the House Judiciary Committee, at its request, copies of DPAs or NPAs 

that DOJ divisions or the U.S. Attorneys Offices entered into with 

corporations. Second, we reviewed recent published academic papers on 

DPAs and NPAs and three Web sites that included a list of DPAs and NPAs 

compiled from publicly available data sources.10 Third, in November 2008, 

we requested from DOJ’s Criminal Division and the Executive Office for 

United States Attorneys (EOUSA) copies of DPAs and NPAs entered into 

after DOJ’s May 2008 response to the House Judiciary Committee. Lastly, 

we identified additional DPAs and NPAs through DOJ press releases and 

our own Web searches. Through the course of our audit work, we 

confirmed that our list of DPAs and NPAs was consistent with information 

maintained by DOJ. We interviewed prosecutors from DOJ’s Criminal 

Division and 12 U.S. Attorneys Offices (USAO) that had negotiated most 

(119) of the 152 agreements. We selected the Criminal Division because it 

had negotiated the vast majority of agreements entered into by 

prosecutors at DOJ headquarters, and we selected 12 specific USAOs 

because they were the only offices that had negotiated at least two 

agreements, of which at least one had been completed as of September 30, 

2008. During our interviews we discussed 57 agreements. Of these 57, 25 

 

9

 This agreement was sealed by order of the court. We obtained a DOJ press release 

describing the key terms in the agreement. 

10 http://www.law.virginia.edu/html/librarysite/garrett_bycompany.htm; 

http://lawprofessors.typepad.com/whitecollarcrime_blog/deferred_prosecution_agreement

s/; http://www.corporatecrimereporter.com/deferredreport.htm. 

Page 5 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

were completed agreements that required companies to institute an ethics 

or compliance program. In addition, 15 of the 25 companies were required 

to hire an independent monitor; we interviewed or obtained written 

responses from legal representatives or compliance officials for 20 of 

these 25 companies who had knowledge of the DPA and NPA process,11

and interviewed 11 of these monitors.12 In addition, we reviewed DOJ 

guidance regarding the prosecution of business entities and spoke to DOJ 

headquarters officials including Senior Counsel to the Office of the Deputy 

Attorney General, Associate Deputy Attorney General, Deputy Assistant 

Attorney General for the Criminal Division, Senior Counsel to the 

Assistant Attorney General for the Criminal Division, Criminal Division 

Fraud Section Chief, and White Collar Crime Coordinator for EOUSA 

regarding policies and procedures related to the use and oversight of DPAs 

and NPAs. Since we selected a nonprobability sample of DOJ officials, 

company representatives, and monitors to interview, the information we 

obtained is not generalizable to all DOJ litigating components, U.S. 

Attorneys Offices, companies, and monitors involved in DPAs and NPAs.13

However, the interviews provided insights into the negotiation and 

implementation of DPAs and NPAs. 

To assess the extent to which DOJ has used DPAs and NPAs to address 

corporate misconduct and tracks its use of these agreements, we 

compared the number of DPAs and NPAs entered into by the USAOs and 

DOJ’s Criminal Division with the number of corporate criminal cases 

prosecuted by these offices from fiscal years 2004 through 2009.14 We 

chose to compare DPAs and NPAs with prosecutions in the USAOs and the 

Criminal Division because these offices had entered into 128 of the 130 

 

11 Five companies declined to participate in interviews. 

12 Four monitors declined to participate in interviews or did not return our calls. 

13 DOJ’s litigating components, among other things, litigate on behalf of the U.S. 

government by enforcing the law and defending the interests of the United States according 

to the law. These components include the U.S. Attorneys Offices, Criminal Division, 

Antitrust Division, Civil Division, Civil Rights Division, Environment and Natural Resources 

Division, National Security Division, and Tax Division. Seven of these litigating 

components—excluding the U.S. Attorneys Offices—are based at DOJ headquarters in 

Washington, D.C. In addition, the Office of the Solicitor General conducts all litigation on 

behalf of the U.S. in the Supreme Court and supervises the handling of litigation in the 

federal appellate courts. 

14 We obtained data beginning in fiscal year 2004 from the USAOs because USAO officials 

told us that data on business entities were reliable for the last 6 fiscal years. We obtained 

data beginning in fiscal year 2004 from the Criminal Division for comparison. 

Page 6 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

agreements entered into between fiscal years 2004 and 2009. As discussed 

above, we identified the DPAs and NPAs entered into during this time 

period from DOJ data, academic papers, and Web site searches. We 

obtained data on the number of cases filed against business entities by 

USAOs and the Criminal Division from EOUSA’s Legal Information Office 

Network System (LIONS), and the Division’s Automated Case Tracking 

System (ACTS). The data on the number of cases filed against business 

entities that we obtained from these databases included both corporate 

criminal prosecutions and DPAs entered into by the USAOs and the 

Criminal Division. For each fiscal year, we computed the number of 

corporate criminal prosecutions by subtracting our counts of the number 

of DPAs entered into by all the USAOs and the Criminal Division from 

LIONS and ACTS data on the number of cases filed against business 

entities. We confirmed with EOUSA and the Criminal Division that our 

computations were accurate. We also reviewed documentation for LIONS 

and ACTS, and spoke with data specialists in EOUSA and the Criminal 

Division regarding how cases involving corporate entities are recorded in 

each system. We determined that the data were sufficiently reliable for our 

purposes. We also reviewed documentation on, and spoke to information 

technology specialists in, DOJ’s Justice Management Division regarding 

DOJ’s plans for tracking DPAs and NPAs in a case management system 

currently under development for DOJ’s litigating components, including all 

the USAOs. We compared DOJ’s tracking procedures with criteria in 

standards for internal control in the federal government.15

To assess how DOJ measures the extent to which DPAs and NPAs have 

contributed to DOJ’s efforts to combat corporate crime, we reviewed 

DOJ’s 2007-2012 Strategic Plan and the corresponding Performance and 

Accountability Reports for fiscal years 2007 through 2009 and Activities 

Reports for DOJ’s Criminal Division Fraud Section for fiscal years 2007 

and 2008.16 We also spoke with Senior Counsel to the ODAG regarding the 

status of DOJ’s efforts to measure the effectiveness of DPAs and NPAs, 

and with the same selected company representatives and monitors we 

contacted to address all our objectives regarding their perspectives on 

 

15 GAO, Internal Control: Standards for Internal Control in the Federal Government, 

GAO/AIMD-00-21.3.1 (Washington, D.C.: November 1999). 

16 The fiscal year 2009 Fraud Section Activities Report had not been completed as of the 

end of our review period. 

Page 7 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

how the effectiveness of these tools might best be measured.17 We 

compared DOJ’s current measurement practices with the requirements of 

the Government Performance and Results Act of 1993,18 which stipulates 

federal agencies are to prepare annual performance plans that articulate 

performance goals and indicators that are aligned with the agencies’ longterm strategic goals, and with criteria in standards for internal control in 

the federal government.19

To assess what role the courts have played in the DPA process, we 

obtained written responses to structured interview questions from 12 of 

the 14 judges who had overseen DPAs in federal courts, where the DPA 

had been completed as of March 2009, and where the judge had overseen a 

DPA for one of the 25 companies we had selected for our interviews.20 The 

Chair of the Judicial Conference’s Committee on Criminal Law agreed to 

conduct, for GAO, telephone interviews of the judges who had overseen 

DPAs in order to protect the confidentiality of individual judges’ answers. 

Officials from the Administrative Office of the U.S. Courts (AOUSC) 

assisted the Chair in carrying out the interviews.21 The information we 

obtained is not generalizable to all judges who have overseen DPAs; 

however, it provides insights into the range of judges’ activities in 

overseeing DPAs. To obtain the perspectives of select prosecutors, 

companies, monitors, and the judiciary on the role the courts should play 

in the DPA and NPA process, we interviewed the same prosecutors, 

company representatives, and monitors we contacted to address all our 

 

17 We discussed how DOJ could measure the effectiveness of DPAs and NPAs with 7 of the 

20 companies and 5 of the 11 monitors we interviewed. 

18 Pub. L. No. 103-62, 107 Stat. 285. 

19 GAO/AIMD-00-21.3.1. 

20 The 12 judges who responded also included one judge who had overseen a DPA for a 

company that was not among the 25 companies we had selected for interviews, because we 

were unable to discuss the DPA with prosecutors who had negotiated the agreement. We 

included this judge in our structured interviews because the USAO that had negotiated the 

agreement had a monitor selection policy that required prosecutors to compile a list of 

potential monitor candidates and submit the list to the court, where the district judge 

would then appoint a monitor from the list. 

21 We were unable to obtain responses from two judges who had retired since overseeing 

DPAs in their district. The 12 judges’ responses were anonymous so we were unable to 

associate the judges’ responses with the cases they oversaw. We are, therefore, unable to 

determine characteristics of cases that had more or less judicial involvement. However, 

two of the agreements overseen by two of the judges specified court involvement in the 

DPA. 

Page 8 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

objectives, as well as one of the two retired U.S. magistrate judges who 

had overseen DPAs and the Chair of the Judicial Conference Committee 

on Criminal Law.22

We conducted this performance audit from September 2008 to December 

2009 in accordance with generally accepted government auditing 

standards. Those standards require that we plan and perform the audit to 

obtain sufficient, appropriate evidence to provide a reasonable basis for 

our findings and conclusions based on our audit objectives. We believe 

that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our objectives. 

Background 

Factors Considered When 

Using and Setting the 

Terms of DPAs and NPAs 

As part of its mission to defend the interests of the United States, DOJ 

controls all criminal prosecutions in which the United States has an 

interest, including those against corporations. Prosecutors’ decisions on 

investigating, charging, and negotiating a plea or other agreement with 

respect to corporate crimes are guided by DOJ’s Principles of Federal 

Prosecution of Business Organizations, which instruct prosecutors to 

consider nine factors when determining how to treat a corporation 

suspected of criminal misconduct and provide guidance on when the nine 

factors most appropriately apply. The principles also provide a number of 

actions prosecutors may take regarding a corporation, including declining 

to prosecute, entering into a DPA or NPA, or criminally prosecuting the 

corporation. According to the principles, DPAs and NPAs are an important 

alternative to declining prosecution against a corporation and obtaining 

the conviction of a company through prosecution. The nine factors, and 

examples of the manner in which they influence the prosecutors’ choices 

of action, are shown in figure 1 below. 23

 

22 This Chair, who is also the chief judge in her federal district, also provided her 

perspectives on the role the courts should play in the DPA and NPA process. Her views do 

not necessarily represent the positions of the Judicial Conference of the United States, 

which has no official policy position at this time. 

23 GAO analysis based on the Principles of Federal Prosecution of Business Organizations. 

The examples given are illustrative of the manner in which the prosecutors consider each 

factor and the circumstances of each case will determine the relevance of and weight 

placed on each factor. 

Page 9 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

Figure 1: How the Principles of Federal Prosecution of Business Organizations Influence Prosecutors’ Decisions to Decline 

Prosecution, Enter into a DPA or NPA, or Prosecute of the offense 

Less pervasive

No history

Less disclosure and cooperation

Less serious

Less adequate

Less adequate

Less collateral consequences

Less effective

Less actions

Less pervasive

Less disclosure and cooperation

Less adequate

Less adequate

Less collateral consequences

Less effective

Less pervasive

Less disclosure and cooperation

Less adequate

Less adequate

Less collateral consequences

Less effective

Source: GAO analysis of DOJ's Principles of Federal Prosecution of Business Organizations.

Criminal

Declination prosecution

Non-prosecution

agreement

Deferred prosecution

agreement

Less pervasive

More cooperation

More adequate

More adequate

Greater consequences

More effective

Less history

Less serious

More actions

More pervasive

More serious

Less cooperation

Less adequate

Less adequate

Fewer consequences

Less effective

Some history

Remedial actionsb Fewer actions

Similar misconduct

Wrongdoing within 

corporation

Pre-existing

compliance program

Prosecution of 

responsible individuals

Civil or regulatory 

enforcement actions

Disclosure of wrongdoing and willingness

to cooperatea

Collateral

consequencesc

Nature and seriousness

of the offense

a

Willingness to cooperate includes cooperation in the government’s investigation of the company’s 

agents. 

Page 10 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

b

Remedial actions include efforts to implement an effective compliance program or improve an 

existing one, pay restitution, or discipline wrongdoers, among other things. 

c

Collateral consequences include disproportionate harm to shareholders, pension holders, 

employees, and others not proven personally culpable, and any impact on the public arising from 

prosecution. 

As part of DPAs and NPAs, companies are generally required to comply 

with a set of terms for a specified duration in exchange for prosecutors 

deferring the decision to prosecute or deciding not to prosecute. These 

terms have included:24

• monetary payments—such as restitution to victims of the crime, forfeiture 

of the proceeds of the crime, and monetary penalties imposed by DOJ; 

• requirements that the company improve or enhance its compliance 

program; 

• requirements that the company hire, at its own expense, an independent 

monitor to assist the company in establishing a compliance program, 

review the effectiveness of a company’s internal control measures, and 

determine whether the company has otherwise met the terms of the 

agreements (The agreements typically require monitors to periodically 

submit written reports to track the company’s progress in complying with 

the terms of the DPA or NPA.); and 

• extraordinary restitution provisions, which are payments or services to 

organizations or individuals not directly affected by the crime. (DOJ issued 

guidance in May 2008—which was incorporated into the United States 

Attorneys’ Manual—prohibiting the use of terms requiring payments to 

charitable, educational, community, or other organizations or individuals 

that are not the victims of the criminal activity or are not providing 

services to redress the harm caused by the criminal conduct.25 According 

 

24 In our June 2009 testimony, we reviewed the terms of 57 DPAs and NPAs that we 

discussed with prosecutors at the 13 DOJ offices we selected for our site visits and 

interviews. See appendix I for the terms included in these 57 agreements. 

25 U.S. Department of Justice, United States Attorneys’ Manual § 9-16.325, Plea 

Agreements, Deferred Prosecution Agreements, Non-Prosecution Agreements and 

“Extraordinary Restitution.” 

Page 11 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

to DOJ, the use of such terms could create actual or perceived conflicts of 

interest or other ethical issues.26) 

Judicial Approval of 

Deferred Prosecutions 

NPAs typically are not filed with the court, but instead are maintained by 

DOJ and the corporation. On the other hand, DPAs are typically filed with 

the court, along with a document that identifies the charges that the 

prosecution has brought against the corporation. The Speedy Trial Act sets 

time limits for the various phases of the criminal justice process—for 

example, a defendant’s trial must begin within 70 days of charges being 

filed or the date when the defendant appeared before the court —and 

violations of these time limits may result in the dismissal of the case.27

However, the Speedy Trial Act also includes provisions that allow for 

certain delays that do not count towards the act’s time limits. Under one of 

these provisions, courts have the authority to approve the deferral of a 

prosecution pursuant to a written agreement between the government and 

the defendant.28

 

26 According to the U.S. Attorneys’ Manual, the section does not restrict this practice in 

limited circumstances. These include: 1) the defendant’s own decision, outside of the 

context of a plea agreement, deferred prosecution agreement or a non-prosecution 

agreement, to unilaterally pay monies to a charitable, education, community or other 

organization or individual; 2) “community restitution” payments made pursuant to 18 U.S.C. 

§ 3663, where the defendant is convicted of certain offenses under the Controlled 

Substances Act and there is no identifiable victim, among other conditions; and 3) the use 

of community service as a condition of probation for environmental prosecutions, where 

the United States Attorneys’ Manual instructs prosecutors considering the use of 

community service to consult with the Environmental Crimes Section of the Environment 

and Natural Resources Division, which has issued guidance on the use of community 

service provisions. Of the 33 agreements DOJ entered into between May 2008—when the 

prohibition was issued—and September 2009, 30 of these agreements did not include an 

extraordinary restitution provision; however, the remaining 3 agreements included 

payments to third parties to fund environmental projects, enforcement efforts, and 

initiatives. According to the ODAG, the payments required in these three agreements—

which were all cases involving environmental crimes—were intended to be encompassed 

by the exception for community service in cases involving environmental crimes. 

27 18 U.S.C. § 3161. 

28 18 U.S.C. § 3161(h)(2). 

Page 12 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

The Number of DPAs 

and NPAs Has 

Generally Been Less 

Than the Number of 

Corporate 

Prosecutions, and 

DOJ Recently Began 

Tracking Its Use of 

These Agreements 

DOJ’s Use of DPAs and 

NPAs Peaked in Fiscal 

Year 2007, Then Declined, 

and USAOs Have Used 

Fewer DPAs and NPAs 

Than Corporate 

Prosecutions While the 

Criminal Division Has 

Used about the Same 

Number of Each 

DOJ has made more frequent use of DPAs and NPAs in recent years, 

entering into four agreements in fiscal year 2003 compared to a high of 38 

agreements in fiscal year 2007, although use declined in fiscal years 2008 

and 2009 when DOJ entered into 24 and 23 agreements, respectively. 

According to DOJ officials, the decrease in the use of DPAs and NPAs 

cannot be attributed to any specific reason because DOJ is a reactive 

agency and experiences fluctuations in the types of cases that occur each 

year. However, the officials noted that fiscal year 2007 appeared to be an 

aberration because the use of DPAs and NPAs in fiscal year 2007 was 

significantly higher than in any other fiscal year. Figure 2 below depicts 

the number of DPAs and NPAs by fiscal year. 

Page 13 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

Figure 2: Number of DPAs and NPAs Entered Into by DOJ, per Fiscal Year 

Number of DPAs and NPAs

Fiscal year

Source: GAO analysis of DOJ data.

0

5

10

15

20

25

30

35

40

1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

From 1993—when the first DPA or NPA was reached—to September 2009, 

38 of the 94 USAOs have entered into at least one DPA or NPA, with the 

total number of agreements per office ranging from 1 agreement entered 

into by 21 of these USAOs, to 23 agreements entered into by the USAO for 

the Southern District of New York. In addition, during this same time 

period, of the seven litigating components based in DOJ headquarters, five 

have entered into DPAs or NPAs, with the total number of agreements per 

division ranging from one agreement entered into by the National Security 

Division to 49 entered into by the Criminal Division. See appendix II for 

the number of DPAs and NPAs entered into by the USAOs and Divisions. 

As shown in table 1, the number of DPAs and NPAs entered into by the 

USAOs is small compared to the number of corporate prosecutions they 

pursued, but the number of DPAs and NPAs entered into by the Criminal 

Division is similar to—and in some fiscal years, more than—the number of 

Page 14 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

corporate prosecutions it pursued.29 For example, USAOs pursued almost 

18 times more corporate prosecutions than DPAs and NPAs from fiscal 

years 2004 to 2009. For the same time period, the Criminal Division 

pursued 0.9 times more prosecutions than DPAs and NPAs, or rather 1.2 

times more DPAs and NPAs than prosecutions. According to Criminal 

Division officials, unlike the USAOs, the number of DPAs and NPAs the 

division has entered into was similar to the number of corporate 

prosecutions it carried out for two reasons. First, the Criminal Division 

more often handles cases against larger multinational corporations—many 

of which may have federal contracts—than the USAOs do. Prosecution of 

such companies may have significant collateral consequences, such as the 

inability to contract with the federal government—a factor prosecutors are 

to consider based on the Principles of Federal Prosecution of Business 

Organizations when determining whether to enter into a DPA or NPA 

versus prosecute. Second, the Criminal Division handles all cases 

involving violations of the Foreign Corrupt Practices Act,30 for which cases 

have increased since fiscal year 2007 and for which the Criminal Division 

has entered into DPAs to improve companies’ compliance. 

 

29 The Criminal Division and the USAOs are responsible for overseeing criminal matters 

under the more than 900 federal criminal statutes. The Criminal Division develops, 

enforces, and supervises the application of all federal criminal laws except those 

specifically assigned to other divisions. For instance, according to DOJ, the Criminal 

Division handles all cases involving violations of the Foreign Corrupt Practices Act, 15 

U.S.C. §§ 78m, 78dd-1 to -3, 78ff. The USAOs conduct most of the trial work—including 

criminal cases—in which the United States is a party. Other DOJ litigating divisions that 

have entered into DPAs or NPAs since fiscal year 1993 include the Antitrust Division, which 

has entered into three agreements; the Environment and Natural Resources Division, which 

has entered into two agreements; the National Security Division, which has entered into 

one agreement; and the Tax Division, which has entered into two agreements. 

30 15 U.S.C. §§ 78m, 78dd-1 to -3, 78ff. 

Page 15 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

Table 1: Number of Corporate Criminal Prosecutions to Each DPA or NPA Entered 

into by USAOs and the Criminal Division from Fiscal Year 2004 to Fiscal Year 2009 

USAOs Criminal Division

Fiscal year 2004 

Prosecutionsa297 5

DPAs and NPAsb4 1

Prosecutions per DPA or NPA 74.3 5.0

Fiscal year 2005 

Prosecutions 350 3

DPAs and NPAs 11 9

Prosecutions per DPA or NPA 31.8 0.3

Fiscal year 2006 

Prosecutions 304 5

DPAs and NPAs 19 5

Prosecutions per DPA or NPA 16.0 1.0

Fiscal year 2007 

Prosecutions 257 11

DPAs and NPAs 31 10

Prosecutions per DPA or NPA 8.3 1.1

Fiscal year 2008 

Prosecutions 257 6

DPAs and NPAs 12 13

Prosecutions per DPA or NPA 21.4 0.5

Fiscal year 2009c 

Prosecutions 194 8

DPAs and NPAs 17 6

Prosecutions per DPA or NPA 11.4 1.3

Total fiscal year 2004 through fiscal year 2009 

Prosecutions 1659 38

DPAs and NPAs 94 44

Prosecutions per DPA or NPA 17.6 0.9

Source: GAO analysis of EOUSA and Criminal Division data. 

a

Prosecution data obtained from LIONS and ACTS, which are the respective EOUSA and Criminal 

Division case management systems, included both prosecutions of business entities and corporate 

DPAs, but did not include NPAs, matter data, or cases that have been declined. In LIONS, matters 

are referrals on which an attorney spends one hour or more of time and on which formal papers have 

not been filed with the court; in ACTS, a matter is an investigation on which a staff person has worked 

a minimum of 30 minutes. We obtained prosecution data from LIONS and ACTS and subtracted from 

the data for each fiscal year the number of DPAs in that fiscal year based on the agreements we 

identified that included court filings. We confirmed the number of DPAs to subtract from each fiscal 

year with EOUSA and the Criminal Division. 

Page 16 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

b

The number of DPAs and NPAs in each fiscal year is based on the agreements we identified. 

c

EOUSA provided prosecution data through July 31, 2009. 

DOJ Has Improved Its 

Ability to Centrally Track 

Its Use of DPAs and NPAs 

Prior to 2009, DOJ did not have a mechanism to centrally track its use of 

DPAs and NPAs, which inhibited its ability to accurately report the 

number and terms of the agreements to the Congress and the public. 

However, in response to our requests for information, DOJ has recently 

taken steps to better track its use of DPAs and NPAs, steps that will allow 

it to more accurately report on the number and terms of DPAs and NPAs 

to Congress and the public, and identify best practices and ensure 

consistency across agreements. 

In January 2008, as part of its oversight of DOJ’s efforts to combat 

corporate crime, the House Judiciary Committee requested that DOJ 

disclose all of the DPAs and NPAs that DOJ had entered into since January 

20, 2003.31 On May 15, 2008, DOJ submitted a total of 76 agreements 

entered into during this 5-year time frame, but acknowledged that the 

DPAs and NPAs it provided to the committee did not represent all 

agreements entered into during the requested time period.32 According to 

DOJ, to respond to the committee’s request, it had to ask the USAOs and 

litigating divisions to submit all DPAs and NPAs entered into by their 

respective offices. However, it appears that the USAOs and divisions did 

not provide all the DPAs and NPAs they had entered into because, in 

conducting our audit work, we found that DOJ had actually entered into 99 

agreements during that time period. According to standards for internal 

control in the federal government, information—which could include 

entering into a DPA or NPA—should be recorded and communicated to 

management in a form and within a time frame that enables it to carry out 

its internal control and other responsibilities. Subsequently, in response to 

our inquiries, DOJ has taken several steps to better track its use of DPAs 

and NPAs, steps that will better position DOJ to more accurately report to 

Congress and the public on the number of existing DPAs and NPAs, the 

outcome of the cases, and the terms of the agreements. According to the 

 

31 The House Judiciary Committee requested disclosure of agreements dating back to 

January 20, 2003, because then-Deputy Attorney General Larry Thompson issued an 

updated version of the Principles of Federal Prosecution of Business Organizations, known 

as the Thompson Memo, on that date, and the committee was aware that the use of DPAs 

and NPAs had grown since 2003. 

32 In its response, DOJ provided a total of 86 agreements, which included 10 agreements 

entered into prior to January 20, 2003. 

Page 17 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

Senior Counsel to the ODAG, DOJ wants to track the agreements 

internally to help identify best practices and ensure consistency across 

agreements, with the recognition that the agreements will need to vary 

based on the facts of each case. The new tracking efforts include: 

• In April 2009, EOUSA—which provides administrative and operational 

support to the USAOs—updated the case management system USAOs use 

to maintain workload information, the Legal Information Office Network 

System (LIONS), and issued guidance to prosecutors on the procedure for 

tracking their use of DPAs and NPAs in LIONS.33 According to an EOUSA 

data official, instructing all USAOs to enter data on DPAs and NPAs in 

LIONS will provide EOUSA with the capability to centrally track the use of 

these agreements across the USAOs. 

• Similarly, in May 2009, the Criminal Division updated its case management 

system, the Automated Case Tracking System (ACTS), and issued 

guidance to prosecutors on the procedure for tracking DPAs and NPAs in 

this system. According to a Criminal Division data official, prosecutors 

were already tracking their use of DPAs and NPAs largely in the manner 

described in the guidance, but the updates to the system allowed the 

Criminal Division to centrally track DPAs and NPAs separately, a process 

that it could not do previously.34 Doing so will provide the Criminal 

Division with the capability to centrally maintain data on the use and 

characteristics of both types of agreements. 

• DOJ is currently in the process of developing a new case management 

system—the Litigation Case Management System (LCMS)—that seven of 

DOJ’s litigating components are to eventually use, including the USAOs 

and four of the five headquarters-based components that have entered into 

 

33 Following the April 2009 guidance, prosecutors at the USAOs are to code all cases in 

which the United States has entered into an NPA or DPA with a business entity as “CPA” in 

the case type field in LIONS. 

34 Prior to the issuance of the May 2009 guidance, Criminal Division prosecutors were able 

to track DPAs and NPAs using a code for DPAs. After the May guidance, codes were 

available for both DPAs and NPAs, allowing the prosecutors to differentiate between the 

types of agreements and track them separately. To track DPAs and NPAs following the May 

guidance, prosecutors at the Criminal Division, upon reaching a DPA or NPA, are to enter 

the disposition code “DP” for a DPA or “NPA” for an NPA under the Defendant tab in 

ACTS, and enter information regarding the terms of the agreements, including the duration, 

in the Notes section of ACTS. 

Page 18 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

DPAs and NPAs.35 According to officials from DOJ’s Justice Management 

Division (JMD) responsible for the implementation of LCMS, the system is 

to enable prosecutors to centrally track their use of DPAs and NPAs as it is 

implemented throughout the USAOs and litigating components.36 This in 

turn will provide DOJ with the ability to centrally collect data on its use of 

DPAs and NPAs across all DOJ components. 

According to the Senior Counsel to the ODAG, centrally tracking its use of 

DPAs and NPAs will provide DOJ with the capability to internally monitor 

the circumstances in which the agreements are being used by prosecutors, 

including whether the agreement requires a monitor. Further, centrally 

tracking DPAs and NPAs in these databases will allow DOJ to assure itself 

that it has a reliable count of the universe of DPAs and NPAs in order to be 

responsive to requests from Congress. 

In addition to tracking DPAs and NPAs in DOJ data systems, the March 

2008 Morford Memo required, among other things, that prosecutors submit 

copies of DPAs and NPAs involving the use of a monitor to the Assistant 

Attorney General for the Criminal Division in order for DOJ to capture 

data on agreements that required monitors. As such, on January 15, 2009, 

DOJ issued guidance outlining the process by which prosecutors were to 

submit DPAs and NPAs to the Criminal Division, and requiring that all 

DPAs and NPAs—not only those involving the use of monitors—be 

 

35 The National Security Division was established in 2006, after development of LCMS had 

begun; therefore, the National Security Division was not included in DOJ’s planning for 

LCMS. Further, because LCMS is an unclassified system and much of the National Security 

Division’s case information is classified, it may be difficult for LCMS to handle the National 

Security Division’s case information. LCMS will replace the components’ data systems 

when implemented and is to be rolled out to the litigating components in three stages, 

beginning with the USAOs. According to officials from DOJ’s Justice Management Division 

(JMD) responsible for the implementation of LCMS, LCMS is to be piloted at one USAO in 

the first quarter of fiscal year 2010, but further roll-out dates to the remaining USAOs 

following this initial pilot are not yet set. The officials said that the current plan is to begin 

to deploy LCMS to the litigating components other than the USAOs in fiscal year 2011, 

although the schedule is subject to change. 

36 According to the JMD officials, the framework for data collection used in EOUSA’s 

current database—which includes the ability to track DPAs and NPAs, following the April 

2009 guidance—is to be incorporated into LCMS, and prosecutors at the USAOs are to be 

able to track DPAs and NPAs in the same way they are tracked in their current data system. 

As LCMS is rolled out to the other litigating components besides the USAOs, whose data 

systems may handle the coding and tracking of DPA and NPA data differently than LCMS, 

the officials said that DOJ will determine whether there is a need to standardize the 

process for tracking DPAs and NPAs. Regardless of whether or not the process is 

standardized, however, the officials told us that LCMS is to allow prosecutors to centrally 

track their use of DPAs and NPAs in LCMS. 

Page 19 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

submitted, along with a reporting form detailing certain information about 

the agreement, including whether it required a monitor and whether it was 

filed in court. Since the issuance of the January 2009 guidance, DOJ has 

entered into 13 agreements, and the Criminal Division has received copies 

of the agreements and the associated reporting forms for all of these 

agreements. As a result, according to the Senior Counsel, DOJ is in a 

position to review and analyze the characteristics of these agreements—

for instance, DOJ can determine whether there is variation among the 

DPAs and NPAs and whether any such variation is appropriate given the 

facts and circumstances of the case. 

According to DOJ, along with prosecution, DPAs and NPAs are invaluable 

tools in achieving its strategic objective to combat public and corporate 

corruption, fraud, economic crime, and cybercrime, although the public, 

as well as the Congress, have called into question the effectiveness of 

these agreements. However, DOJ cannot evaluate and demonstrate the 

extent to which DPAs and NPAs—in addition to other tools, such as 

prosecution—contribute to the department’s efforts to combat corporate 

crime because it has no measures to assess their effectiveness. 

Specifically, DOJ intends for these agreements to promote corporate 

reform; however, DOJ does not have performance measures in place to 

assess whether this goal has been met.37 Therefore, it could be difficult for 

DOJ to justify its increasing use of these tools. 

DOJ Lacks 

Performance 

Measures to Evaluate 

How DPAs and NPAs 

Contribute to Its 

Strategic Objective to 

Combat Corporate 

Crime 

The Government Performance and Results Act of 199338 requires that 

federal agencies prepare annual performance plans that articulate 

performance goals and indicators that are aligned with their long-term 

strategic goals in order to generate information congressional and 

executive branch decision-makers need in considering measures to 

improve government performance and reduce costs. In addition, standards 

for internal controls in the federal government state that activities need to 

be established to monitor performance measures and indicators, and that 

controls aimed at both organizational and individual performance need to 

 

37 While DOJ does not have performance measures to assess the effectiveness of any of its 

efforts to combat corporate crime, including prosecution, because the scope of our work 

was focused specifically on DPAs and NPAs, we only discuss performance measures 

related to these types of agreements. 

38 Pub. L. No. 103-62 107 Stat. 285. 

Page 20 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

be implemented.39 Performance measures are established in order to 

assess whether a program has achieved its objectives and are expressed as 

measurable, quantifiable indicators. Outcome-oriented performance 

measures, in particular, assess a program activity by comparing it to its 

intended purpose or targets.40 Although DOJ has a strategic objective to 

combat public and corporate corruption, fraud, economic crime, and 

cybercrime, which includes the use of DPAs and NPAs, it has not 

determined how it will measure the extent to which these agreements 

have helped it to achieve this strategic objective to demonstrate the 

effectiveness of these tools, despite its increased use of these tools in 

recent years. 

DOJ has mechanisms to assess how litigating divisions achieve favorable 

results in criminal cases in general, but not for corporate criminal cases in 

particular, including the use of DPAs and NPAs to resolve these cases.41

Specifically, DOJ measures the performance of its litigating divisions in 

meeting the strategic goal of preventing crime, enforcing federal laws, and 

representing the rights and interests of the American people by measuring 

the percent of cases in which prosecutors achieve a favorable resolution. 

DOJ’s fiscal year 2009 Performance and Accountability Report stated that 

92 percent of criminal cases were favorably resolved.42 However, this 

performance measure does not specifically address corporate criminal 

cases or litigating division efforts to achieve the strategic objective of 

combating public and corporate corruption, fraud, economic crime, and 

cybercrime. Further, while one of the measures the Fraud Section uses to 

report its annual accomplishments is counting and reporting on the 

number of DPAs or NPA it initiates, among other things,43 this measure 

does not provide an evaluation of the effectiveness of DPAs or NPAs. 

 

39 GAO/AIMD-00-21.3.1. 

40 See 31 U.S.C. § 1115(g)(2). 

41 The FBI has performance measures for the strategic objective to combat public and 

corporate corruption, fraud, economic crime, and cybercrime, but the FBI is not a DOJ 

litigating division, and its measure focuses on the results of its investigations, rather than 

results from litigation. 

42 Favorably resolved cases include those cases that resulted in court judgments favorable 

to the government, as well as settlements. U.S. Department of Justice, FY 2009 

Performance and Accountability Report, Strategic Goal II, p 25. 

43 Fraud Section, DOJ Criminal Division, Fraud Section Activities Report, Fiscal Year 

2008, p 2. 

Page 21 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

DOJ officials acknowledged that one of DOJ’s goals in using DPAs and 

NPAs is to help reform the company. In our discussions with the Senior 

Counsel to the ODAG as well as the five monitors and seven companies 

that provided opinions on how DOJ could measure the effectiveness of 

DPAs and NPAs, these officials suggested two possible models for 

measuring effectiveness by considering (1) a company’s recidivist 

behavior—or the extent to which the company re-engages in criminal 

misconduct—after the agreement is complete or during the term of the 

DPA or NPA, or (2) whether the company successfully met the terms of 

the agreement, which often include requirements to establish or enhance 

compliance programs as a means to reform the company. 

While half of the company officials and monitors with whom we spoke 

who discussed the use of recidivism as a measure did not have concerns 

with using such a metric, an equal number did express concerns about 

using this as the sole metric.44 One consideration is that DOJ would have to 

define the types of criminal misconduct engaged in by the company and 

the organizational level of employees engaging in the misconduct that 

would constitute recidivism. For example, according to the Senior Counsel 

to the Assistant Attorney General for the Criminal Division, DPAs and 

NPAs are tailored to address the violations of a specific law based on 

specific misconduct. Therefore, if the company entered into a DPA or NPA 

because it violated the Commodity Exchange Act, for example, it could be 

problematic to consider subsequent violations of the Foreign Corrupt 

Practices Act as recidivism. In addition, DOJ may have to consider 

whether criminal misconduct committed by an individual employee should 

be considered recidivism—for instance, one company official said that, at 

a large international company, it is possible that individual employees may 

engage in misconduct in violation of the company’s compliance program, 

but this should not constitute recidivism on the part of the entire 

company. 

Another consideration regarding measuring recidivism after the 

completion of the DPA or NPA, according to DOJ officials with whom we 

spoke, is that DOJ does not have the resources to monitor a company’s 

activities after the agreement has been completed over the long term, nor 

is it the mission of DOJ to do so. DOJ officials further stated that criminal 

 

44 Two monitors and five companies discussed the use of recidivism as a measure of the 

effectiveness of DPAs and NPAs. One monitor and two companies did not have concerns 

with using this metric, while one monitor and two companies did. The remaining company 

was not sure. 

Page 22 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

misconduct committed after completion of the agreement is not 

reasonably within DOJ’s control because, once the agreement has ended, 

DOJ is not monitoring the company’s behavior, and any further 

misconduct may be influenced by other factors—such as the 

characteristics of the corporation—and not the effectiveness of the 

agreement. Finally, according to the Senior Counsel to the Assistant 

Attorney General for the Criminal Division, if the company re-engaged in 

criminal misconduct, and the misconduct was reported to federal law 

enforcement officials, the Principles of Federal Prosecution of Business 

Organizations instruct prosecutors to consider the company’s recidivist 

behavior in determining how to treat the company.45 However, the Senior 

Counsel said that, because one of DOJ’s goals in entering into the DPA or 

NPA is to reform the company, DOJ takes responsibility for monitoring 

any recidivist behavior on the part of the company during the term of the 

DPA or NPA. 

In addition to recidivism—both after and during the agreement—whether 

the company successfully met the terms of the DPA or NPA could be a 

proxy measure—or indirect indicator—for whether the agreement was 

effective at successfully reforming the company. As part of the DPA or 

NPA, companies are often required to establish or enhance internal 

controls or company compliance programs, or engage in training to detect 

and prevent further wrongdoing. According to DOJ officials, if a company 

meets all of these requirements, it is likely that the company has reformed. 

Overall, five of the seven companies and three of the five monitors with 

whom we discussed this issue reported that such a performance measure 

would be a useful way to measure the effectiveness of DPAs and NPAs. 

For instance, to show whether companies meet the objectives of their 

agreements, DOJ could report the percentage of companies that 

successfully meet the terms of their agreements, the percentage of 

companies that violate the terms of their agreements and face prosecution, 

and the percentage of agreements DOJ extends because the company has 

not yet complied with the terms of the agreement. Of the 152 DPAs and 

NPAs that DOJ had entered into as of October 2009, we are aware of at 

 

45 We are aware of at least two cases of recidivism that involved further criminal 

misconduct after the successful completion of an agreement. In one case, the company 

entered into a subsequent agreement to address the additional misconduct. According to 

the prosecutor who entered into this subsequent agreement, prosecutors considered the 

company’s recidivist behavior when deciding to enter into the agreement, but other 

factors—such as the fact that the entity that had committed the wrongdoing had been sold 

to another company—were also considered in the decision. In the other case, the company 

was prosecuted. 

Page 23 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

least one company that was prosecuted because it violated the terms of its 

DPA while the agreement was still ongoing and two companies for which 

DOJ extended the agreement because the company had not yet complied 

with the terms of the agreement. 

However, it may be difficult to determine the extent to which the 

agreement itself, rather than other factors, was responsible for corporate 

reform. For example, according to one company official, companies can 

commit to making necessary compliance changes even before entering 

into a DPA or NPA, so the agreement did not cause the reforms. Yet, 

because the Principles of Federal Prosecution of Business Organizations 

instruct prosecutors to consider a company’s remedial actions—such as 

its efforts to implement or enhance an effective compliance program—

when determining how to treat the corporation, this factor may motivate a 

company to institute reforms in order to influence DOJ’s decision as to 

whether to use a DPA or NPA. The Senior Counsel to the ODAG also 

believed that measuring whether companies successfully meet the terms 

of their agreements would be valuable, and that the fact that companies do 

not often violate their agreements and subsequently face prosecution was 

an indicator that agreements have helped companies to successfully 

reform. 

Several factors would have to be considered in developing these—or any 

other—measures, such as clearly defining what is meant by recidivism and 

assessing the feasibility of tracking recidivism. However, by developing 

measures to evaluate DPAs and NPAs, DOJ will be able to gauge whether 

the agreements are effective tools in achieving its strategic objective and 

reassure those with concerns about the appropriate use of these tools that 

they are effective in deterring and combating corporate crime. 

Page 24 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

Courts Generally Had 

Limited Involvement 

in the DPA Process, 

and Prosecutors, 

Company Officials, 

Monitors, and Judges 

More Frequently 

Cited Disadvantages 

Than Advantages to 

Greater Court 

Involvement 

Judges Reported Limited 

Involvement in the DPA 

Process 

The Speedy Trial Act allows judges to approve the deferral of prosecution 

pursuant to a written agreement between the government and the 

defendant, for the purpose of allowing the defendant to demonstrate his 

good conduct; however, the law does not otherwise specify judicial 

involvement in the DPA process.46 We obtained responses from 12 U.S. 

district and magistrate judges who handled cases involving a DPA, and 

these judges reported they were generally not involved in the DPA 

process.47 Specifically: 

• Nine of the 12 judges stated that they did not hold a hearing to review the 

DPA or its terms, while the 3 remaining judges held hearings. One of these 

judges did so in the context of a plea hearing. Another judge held a hearing 

to arraign the company; at which time, the company and DOJ informed the 

judge that they intended to enter into a DPA. The judge then had a second 

hearing to approve the DPA.48 The third judge conducted a hearing to 

 

46 18 U.S.C. § 3161(h)(2). Because NPAs typically do not involve court filings, judges are not 

involved in the NPA process. 

47 The judges’ responses were anonymous so we were unable to associate the judges’ 

responses with the cases they oversaw. We are therefore unable to determine the 

characteristics of cases that had more or less judicial involvement. However, two of the 

agreements overseen by two of the judges specified court involvement in the DPA. 

48 An arraignment must be conducted in open court, at which time the court must ensure 

that the defendant has a copy of the indictment or information; read the indictment or 

information to the defendant or state to the defendant the substance of the charge; and 

then ask the defendant to plead to the indictment or information. Fed. R. Crim. P. 10(a). 

Page 25 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

arraign the company and verify that the company’s decision to enter into 

the DPA was informed and voluntary. Ten of the 12 judges reported that 

they relayed their decision approving the DPA through a written order. 

One judge relayed the decisions orally at a hearing, and one judge did 

both. 

• Ten of the 12 judges reported that they did not have a role in the selection 

of a monitor required under the DPA, while the remaining 2 judges did. In 

one of the 2 cases, the company identified the names of five monitor 

candidates, the DOJ prosecutors in the case determined three of the five 

candidates were acceptable, and the judge extensively interviewed the 

three candidates before selecting one of the candidates to serve as 

monitor. In the other case, the DOJ prosecutors interviewed and identified 

monitor candidates, and the judge made a final selection from this group. 

• Ten of the 12 judges stated that the monitors did not report any 

information to the court during the DPA, and the remaining 2 judges stated 

they received information from the monitor. In one of these two cases, the 

monitor filed quarterly reports with DOJ and the company’s board of 

directors, and the court received a copy of the monitor’s final report. In 

the other case, the court received a copy of the reports the monitor was 

required to prepare as part of the DPA and also spoke with the monitor 

occasionally. Similarly, 11 of the 12 judges did not receive any information 

from DOJ regarding the monitor’s compliance with monitoring obligations 

under the DPA. The remaining judge received calls from DOJ after the 

monitor submitted bills to the court in order for DOJ to confirm to the 

court that the monitor was in compliance with the monitoring obligations 

in the DPA. 

• Eleven of the 12 judges reported that they played no role in determining 

the terms of the monitor’s contract or setting the monitor’s fees. The 

remaining judge set, reviewed, and approved the monitor’s fees. Ten of the 

12 judges did not receive copies of the monitoring contracts, while 1 judge 

received a copy and another judge was uncertain. 

• Ten of the 12 judges said that they dismissed the charges against the 

company after receiving information or a court filing from DOJ or the 

monitor reflecting compliance, but did not report taking actions to 

independently assess the company’s compliance with the DPA. One 

additional judge stated that he ensured the company understood the 

agreement before dismissing the charges, and the final judge reported that 

the court would review DOJ’s submission to determine whether dismissal 

of the charges against the company was warranted. 

Page 26 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

Prosecutors from 7 of the 13 DOJ offices, officials from 9 of the 20 

companies, and 6 of the 11 monitors with whom we spoke reported 

disadvantages to a greater court role, while no prosecutors, 7 of 20 

company officials, and 3 of 11 monitors described advantages to a greater 

court role. Two company officials did not believe there were advantages 

or disadvantages to greater court involvement, and another company 

official said that the advantages and disadvantages would depend on the 

judge involved in the case.49 We also spoke with 2 judges, and 1 cited 

disadvantages to greater court involvement, while the other cited both 

advantages and disadvantages.50

Prosecutors, Company 

Officials, Monitors, and 

Judges with Whom We 

Spoke Identified More 

Disadvantages than 

Advantages to Greater 

Court Involvement in the 

DPA Process 

The advantages cited most often included: 

• the court’s ability to act as an independent arbiter of disputes that 

companies and DOJ identify, or to handle significant events in the DPA 

process, such as the determination of a breach; 

• court involvement in monitor selection could decrease the appearance of 

favoritism and add to the perception of fairness in the monitor’s selection; 

and 

• court involvement could increase transparency in the DPA process by, for 

example, making monitor reports filed in the case publicly available. 

The disadvantages most frequently cited were: 

• the lack of time and resources available to judges to become more 

involved in the DPA process or their willingness to do so. For instance, 

three prosecutors, one monitor, one company official, and one judge noted 

that, because of already high caseloads, judges may not have the time or 

resources to thoroughly review the terms of a DPA, interview and select 

appropriate monitor candidates, review monitor reports, or determine 

whether a company is in compliance with the DPA; 

• concerns over the appropriateness of judges playing a larger role in the 

DPA process. For example, two officials noted that judges are prohibited 

 

49 Prosecutors from six DOJ offices, seven company officials, and three monitors did not 

respond or were not asked their opinion of court involvement in the DPA process. Five 

company officials and one monitor are included in both counts because they reported both 

disadvantages and advantages to a greater court role, and another company is doublecounted because one company official cited advantages to greater court involvement, while 

another believed it would depend on the judge. 

50 We obtained views from a retired U.S. magistrate judge who had overseen a DPA, and the 

chief judge in one federal judicial district. We did not obtain opinions from the 12 judges 

who handled cases involving a DPA because our questions were limited to their roles in 

these cases. 

Page 27 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

from participating in plea bargaining between two parties in a case and 

believed that negotiations over DPAs were similar to plea bargaining.51

Others believed that decisions in the DPA process—such as whether to 

enter into a DPA instead of prosecute, set the terms of the agreement, or 

determine whether a company has complied with or breached an 

agreement—were functions of the executive rather than the judicial 

branch. For example, one judge noted that if a judge disagreed with the 

prosecutor’s determination that a company had complied with the DPA, 

the judge’s authority to refuse the prosecutor’s request to dismiss the 

indictment and proceed with prosecution is unclear. Thus, greater court 

involvement might create a problem related to the separation of powers 

under the Constitution, as well as inhibit prosecutors’ discretion in their 

cases. According to DOJ officials, DOJ does not have a position on 

whether greater judicial involvement in the DPA process creates 

separation of powers issues; however, DOJ believes that judicial 

involvement in the NPA process would create concerns related to the 

separation of powers because no judicial review is involved for NPAs, as 

they typically do not involve court filings. 

• the additional time and processes associated with court involvement, such 

as hearings, which may slow down the DPA process; and 

• judges’ lack of knowledge and expertise about the case or its subject 

matter, such as the operation of an environmental management system at 

a wastewater treatment plant, which prosecutors in the case may have 

spent years developing. 

According to DOJ, DPAs and NPAs can be invaluable tools for fighting 

corporate corruption and helping to rehabilitate a company, although use 

of these agreements has not been without controversy, including questions 

about the effectiveness of these tools. DOJ has taken several steps to 

better track its use of DPAs and NPAs, steps that will better position DOJ 

to more accurately report to Congress and the public on the number of 

existing DPAs and NPAs, the outcome of the cases, and the terms of the 

agreements. However, while DOJ has stated that DPAs and NPAs are 

useful tools for combating and deterring corporate crime, without 

performance measures, it will be difficult for DOJ to demonstrate that 

these agreements are effective at helping the department achieve this goal. 

Models exist that would allow DOJ to create such measures, including 

Conclusions 

 

51 Federal Rule of Criminal Procedure 11 states that an attorney for the government and the 

defendant’s attorney, or the defendant when he or she does not have an attorney, may 

discuss and reach a plea agreement, but the court must not participate in these discussions. 

Fed. R. Crim. P. 11(c)(1). 

Page 28 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

measuring whether a company reengages in misconduct over the longterm or during the course of the agreement or whether a company 

successfully meets the terms of its DPA or NPA. By developing 

performance measures to evaluate DPAs and NPAs, DOJ will be better 

positioned to gauge whether they are effective tools in deterring and 

combating corporate crime. 

To assess its progress toward meeting its strategic objective of combating 

public and corporate corruption, the Attorney General should develop 

performance measures to evaluate the contribution of DPAs and NPAs 

towards achieving this objective. 

On December 15, 2009, DOJ provided written comments on a draft of this 

report, which we discussed with the Associate Deputy General Counsel for 

ODAG and the White Collar Crime Coordinator for EOUSA on December 

17, 2009. DOJ agreed with our recommendation. The full text of DOJ’s 

written comments is included in appendix III. 

Recommendation for 

Executive Action 

Agency Comments 

and Our Evaluation 

In its letter, DOJ stated that the department uses a variety of tools to 

achieve its mission of protecting the public from corporate corruption, and 

in some cases, DPAs and NPAs are appropriate tools and offer a number of 

benefits, such as the avoidance of negative collateral consequences of 

prosecution and conviction to companies and innocent third parties. 

DOJ agreed with our recommendation that the Attorney General develop 

performance measures to evaluate the contribution of DPAs and NPAs 

toward achieving its strategic objective of combating public and corporate 

corruption, and recognizes the value of appropriate performance measures 

in this area. DOJ did not think that the Government Performance and 

Results Act of 1993 (GPRA) was a relevant a criterion for the development 

of performance measures for DPAs and NPAs, stating that it requires 

agencies to develop performance measures for broader program activities, 

such as those set forth in agency budgets, and not for tools such as DPAs 

and NPAs, which are used less frequently and are narrowly defined to 

rectify specific wrongdoing. While we acknowledge that GPRA does not 

require the department to develop performance measures at levels below 

the program activities set forth in the agency’s budget, we also note that a 

practice among leading organizations when implementing results-oriented 

management practices consistent with GPRA has been to develop 

performance measures for each organizational level, which could help 

managers and staff understand how their daily activities contribute to 

Page 29 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

attaining organizationwide strategic goals. Also, there are other criteria in 

addition to GPRA that we cited in our draft report—specifically, the 

standards for internal control in the federal government—which state that 

agencies should establish activities to monitor performance measures and 

indicators and implement controls aimed at organizational performance. 

Additionally, with regard to DOJ’s comment that DPAs and NPAs are 

relatively few in number, while that may be the case for the U.S. Attorneys’ 

Offices, as we stated in our report, the Criminal Division has entered into 

about the same number of DPAs and NPAs as the number of prosecutions 

it has pursued. 

As to the specific types of performance measures DOJ could adopt, we 

proposed in our draft report that DOJ might measure whether the 

company successfully met the terms of the agreement or whether the 

company re-offended, as two potential measures of the effectiveness of 

DPAs and NPAs. In its comments, DOJ identified some of the same 

limitations as we did in our report regarding the use of recidivism as a 

performance measure. Specifically, DOJ stated that it would be difficult to 

determine whether a company recidivated if the company’s subsequent 

violation was different than the original violation that resulted in the DPA 

or NPA. However, DOJ stated that the recent efforts under way by EOUSA 

and the Criminal Division to track the department’s use of DPAs and NPAs 

and monitor the disposition of these agreements will help DOJ know 

whether the corporation has fulfilled all of the terms of the agreement, 

knowledge that could be useful information for the department as it 

develops its performance measures for DPAs and NPAs. 

We also received written comments from the Administrative Office of the 

U.S. Courts (AOUSC) on December 17, 2009, and the full text of the 

Office’s written comments is included in appendix IV. 

AOUSC in its comments emphasized concerns about greater judicial 

involvement in the use of DPAs and NPAs, including concerns about 

constitutional and other separation of powers issues contained in the 

report, and suggested these be given greater emphasis. We maintain that 

we have accurately and objectively represented the views of prosecutors, 

company officials, monitors, and judges as presented to us in the course of 

our review and have reflected these issues in the report. 

Page 30 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

As agreed with your offices, we plan no further distribution of this report 

until 24 days from its date, unless you publicly announce its contents 

earlier. At that time, we will send copies of this report to the Attorney 

General, the Director of AOUSC, selected congressional committees, and 

other interested parties. The report will also be available at no charge on 

the GAO Web site at http://www.gao.gov. 

If you or your staff have any further questions about this report, please 

contact me at (202) 512-8777 or larencee@gao.gov. Contact points for our 

Offices of Congressional Relations and Public Affairs may be found on the 

last page of this report. Key contributors to this report are listed in app. V. 

Eileen R. Larence 

Director, Homeland Security and Justice Issues 

Page 31 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
 

List of Requesters 

The Honorable Patrick J. Leahy 

Chairman 

Committee on the Judiciary 

United States Senate 

The Honorable John Conyers, Jr. 

Chairman 

Committee on the Judiciary 

House of Representatives 

The Honorable Steve Cohen 

Chairman 

Subcommittee on Commercial and Administrative Law 

Committee on the Judiciary 

House of Representatives 

The Honorable Frank Pallone, Jr. 

House of Representatives 

The Honorable Bill Pascrell, Jr. 

House of Representatives 

The Honorable Linda T. Sanchez 

House of Representatives 

Page 32 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
Appendix I: Terms of 57 DPAs and NPAs 

Reviewed and Discussed in June 2009 Appendix I: Terms of 57 DPAs and NPAs Testimony 

Reviewed and Discussed in June 2009 

Testimony 

The terms of the 57 DPAs and NPAs we previously reviewed for our June 

2009 testimony included: 1

• durations ranging from 3 months to 5 years (One of the 57 agreements we 

reviewed did not specify the duration.); 

• monetary payments ranging from $30,000 to $615 million (Forty-five of the 

57 DPAs and NPAs we reviewed required monetary payments, while 12 did 

not.); 

• requirements that the company improve or enhance its compliance 

program (Forty-five of the 57 DPAs and NPAs we reviewed included 

compliance program requirements, while 12 did not.); 

• requirements that the company hire, at its own expense, an independent 

monitor to assist the company in establishing a compliance program, 

review the effectiveness of a company’s internal control measures, and 

determine whether the company has otherwise met the terms of the 

agreements (Twenty-six of the 57 DPAs and NPAs required companies to 

hire independent monitors.); and 

• extraordinary restitution provisions, which are payments or services to 

organizations or individuals not directly affected by the crime. (Four of the 

57 DPAs and NPAs we reviewed included such terms. However, DOJ 

issued guidance in May 2008 prohibiting the use of terms requiring 

payments to charitable, educational, community, or other organizations or 

individuals that are not the victims of the criminal activity or are not 

providing services to redress the harm caused by the criminal conduct.) 

 

1

 For the purposes of our June 2009 testimony statement, we reviewed the terms of the 57 

agreements we discussed with prosecutors at the 13 DOJ offices we selected for our site 

visits and interviews. The criteria we used to select these offices, and thus the 57 

agreements, are described earlier in this report. 

Page 33 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements 
Appendix II: Number of DPAs and NPAs by 

Each U.S. Attorney’s Office and DOJ 

Litigating Division 

Table 2: Number of DPAs and NPAs Entered into by Each U.S. Attorney’s Office 

(USAO) 

USAO 

Number of DPAs 

and NPAs entered 

into as only office 

Number of DPAs 

and NPAs entered 

into jointly with 

other office Total

1 Southern District of New York 20 3 23

2 Massachusetts 11 1 12

3 Eastern District of New York 11 0 11

4 Central District of California 10 1 11

5 New Jersey 7 0 7

6 Northern District of California 3 2 5

7 Western District of Virginia 3 1 4

8 Northern District of Alabama 1 1 2

9 Connecticut 2 0 2

10 Southern District of Mississippi 2 0 2

11 Rhode Island 1 1 2

12 Eastern District of Virginia 0 2 2

13 Southern District of Ohio 1 1 2

14 Northern District of Georgia 1 1 2

15 Western District of Missouri 2 0 2

16 Southern District of Texas 2 0 2

17 Northern District of New York 2 0 2

18 Eastern District of Arkansas 1 0 1

19 Southern District of California 1 0 1

20 District of Columbia 1 0 1

21 Northern District of Florida 0 1 1

22 Southern District of Illinois 0 1 1

23 Southern District of Indiana 0 1 1

24 Northern District of Iowa 1 0 1

25 Western District of Kentucky 1 0 1

26 Eastern District of Missouri 1 0 1

27 Northern District of Mississippi 1 0 1

28 New Mexico 1 0 1

29 Northern District of Ohio 0 1 1

30 Western District of 

Pennsylvania 

1 0 1

31 Southern District of Florida 0 1 1

32 Middle District of Florida 1 0 1

Appendix II: Number of DPAs and NPAs by 

Each U.S. Attorney’s Office and DOJ 

Litigating Division 

Page 34 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
Appendix II: Number of DPAs and NPAs by 

Each U.S. Attorney’s Office and DOJ 

Litigating Division 

 USAO 

Number of DPAs 

and NPAs entered 

into as only office 

Number of DPAs 

and NPAs entered 

into jointly with 

other office Total

33 North Dakota 0 1 1

34 Western District of North 

Carolina 

1 0 1

35 Northern District of Illinois 1 0 1

36 Kansas 1 0 1

37 Alaska 0 1 1

38 Western District of Oklahoma 1 0 1

Source: GAO analysis of DOJ data

Note: The USAOs not listed in this table had not entered into any DPAs or NPAs as of September 

2009. 

Table 3: Number of DPAs and NPAs Entered into by Each DOJ Litigating Division 

Division and Section 

Number of 

DPAs and 

NPAs entered 

into as only 

office 

Number of DPAs 

and NPAs 

entered into 

jointly with 

another office Total

1 Criminal Division 

Fraud Section 29 7 36

Asset Forfeiture and Money 

Laundering Section 

6 0 6

Enron Task Force 2 0 2

Obscenity Prosecution Task Force 0 1 1

Public Integrity Section 0 1 1

Criminal Division, no section listed 1 2 3

Total Criminal Division 49

2 Antitrust Division 2 1 3

3 Environment and Natural Resources 

Division 

Environmental Crimes Section 0 2 2

Total Environment and Natural 

Resources Division 

2

4 Tax Division 0 2 2

5 National Security Division 0 1 1

Source: GAO analysis of DOJ data 

Note: The DOJ litigating divisions not listed in this table—the Civil Division and Civil Rights Division—

had not entered into any DPAs or NPAs as of September 2009. 

Page 35 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
Appendix III: Comments from the Department Appendix III: Comments from the of Justice 

Department of Justice 

Page 36 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements 
Appendix III: Comments from the Department 

of Justice 

Page 37 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
Appendix III: Comments from the Department 

of Justice 

Page 38 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
Appendix III: Comments from the Department 

of Justice 

Page 39 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
Appendix III: Comments from the Department 

of Justice 

Page 40 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements
Appendix IV: Comments from the Appendix IV: Comments from the Administrative Office of the U.S. Courts 

Administrative Office of the U.S. Courts 

Page 41 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements 
Appendix V: GAO Contact and Staff Appendix V: GAO Contact and Staff Acknowledgments 

Acknowledgments 

Eileen R. Larence, (202) 512-8777 or larencee@gao.gov. 

In addition to the contact named above, Kristy N. Brown, Assistant 

Director; Jill Evancho; Tom Jessor; Danielle Pakdaman; Sarah Kaczmarek; 

Janet Temko; Amanda Miller; Katherine Davis; and Mandana Yousefi made 

significant contributions to this report. 

Page 42 GAO-10-110 DOJ's Use of Deferred and Non-Prosecution Agreements

GAO Contact 

Staff 

Acknowledgments 

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