DOJ Guiding Principles for Initiating and Resolving FCPA Investigations

Guiding Principles of Enforcement GUIDING PRINCIPLES OF ENFORCEMENT What Does DOJ Consider When Deciding Whether to Open an Investigation or Bring Charges? Whether and how DOJ will commence, decline, or otherwise resolve an FCPA matter is guided by the Principles of Federal Prosecution in the case of individu- als, and the Principles of Federal Prosecution of Business Organizations in the case of companies. DOJ Principles of Federal Prosecution The Principles of Federal Prosecution, set forth in Chapter 9-27.000 of the U.S. Attorney’s Manual,” pro- vide guidance for DOJ prosecutors regarding initiating or declining prosecution, selecting charges, and plea-bar- gaining. The Principles of Federal Prosecution provide that prosecutors should recommend or commence federal pros- ecution if the putative defendant's conduct constitutes a federal offense and the admissible evidence will probably be sufficient to obtain and sustain a conviction unless (1) no substantial federal interest would be served by prosecution; (2) the person is subject to effective prosecution in another jurisdiction; or (3) an adequate non-criminal alternative to prosecution exists. In assessing the existence of a substantial federal interest, the prosecutor is advised to “weigh all rel- evant considerations,’ including the nature and seriousness of the offense; the deterrent effect of prosecution; the per- son’s culpability in connection with the offense; the per- son’s history with respect to criminal activity; the person’s willingness to cooperate in the investigation or prosecu- tion of others; and the probable sentence or other conse- quences if the person is convicted. The Principles of Federal Prosecution also set out the considerations to be weighed when deciding whether to enter into a plea agreement with an individual defendant, including the nature and serious- ness of the offense and the person’s willingness to cooperate, as well as the desirability of prompt and certain disposition of the case and the expense of trial and appeal.” DOJ Principles of Federal Prosecution of Business Organizations The Principles of Federal Prosecution of Business Organizations, set forth in Chapter 9-28.000 of the US. Attorney’s Manual,”” provide guidance regarding the resolu- tion of cases involving corporate wrongdoing. The Principles of Federal Prosecution of Business Organizations recognize that resolution of corporate criminal cases by means other HOUSE_OVERSIGHT_022554