DIRECTIVE 99-20
GLOBAL SETTLEMENT POLICY(1)
U.S. Attorneys' Manual § 5-11.115 (August
23, 1995) provides that the approval of the Assistant Attorney General
(AAG) of the Environment and Natural Resources Division (ENRD) is required
for any "global settlement" that addresses or compromises both civil claims
and criminal charges.(2) This memorandum
identifies issues to be considered when deciding whether a global settlement
is appropriate in a given case and sets forth criteria by which the Assistant
Attorney General will assess requests for approval of such settlements
as proposed by a U.S. Attorney's Office or from within ENRD.
The Department and many United States Attorneys'
Offices have parallel proceedings policies that provide civil and criminal
attorneys with flexibility, within legal, ethical and prudential constraints,
to share information, to consult on legal issues, to conduct investigations
jointly, and to pursue parallel proceedings. Such coordinated efforts may
obtain both civil and criminal remedies, through adjudication or settlement,
and such global settlements may be desirable, subject to the appropriate
policies.
Defense counsel may ask in settlement negotiations
in either a civil or criminal case for a global settlement in which the
defendant receives releases from both civil and criminal liability. These
requests, when made late in the negotiation process and when the government
has pursued the case civilly or criminally, but not both, pose particular
concern. Experience has demonstrated that these eleventh-hour global resolutions
can be problematic because there is insufficient time to marshal all the
information needed to address the terms of the resolution fully and to
obtain needed agency authorization for civil resolutions, thus putting
the government at risk in the negotiations. For these reasons, last-minute
global settlements where there has not been an ongoing parallel proceeding
are disfavored.
Defense attorneys sometimes seek to negotiate
civil resolutions with criminal prosecutors, including waivers of any further
civil liability; similarly, defense attorneys sometimes seek to resolve
criminal matters, including waivers of criminal liability, with civil government
attorneys. The government is put at risk when its criminal prosecutors
agree to civil terms with which they may not be familiar or may not fully
understand, and vice versa. This policy seeks, in part, to ensure that
the interests of the people of the United States are represented in each
case in which there may be a global settlement by a government attorney
with the appropriate training and expertise.
Each global settlement proposal must be evaluated
on its own merits, and the AAG's approval will depend on an assessment
of all the circumstances. Generally, approval of such settlements requires
that the following important conditions have been met:
1. Criminal plea agreements must be handled
by criminal attorneys and civil settlements by civil attorneys. The
criminal plea agreements and civil settlements should generally be negotiated
separately. Each resolution -- criminal and civil -- should be negotiated
by attorneys who have the appropriate (civil or criminal) training and
who are working within the appropriate unit of ENRD or a U.S. Attorney's
Office.
2. Each part of the settlement must separately
satisfy the appropriate criminal and civil criteria. The criminal plea
agreement must satisfy the criteria set out in the Principles of Federal
Prosecution and in other Department of Justice policies for consideration
of a plea agreement. The civil settlement must satisfy the policies of
the Justice Department, and in addition should to the same extent as other
civil settlements conform to the policies of affected client agencies.
3. With respect to a civil settlement, all
affected client agencies must approve the settlement. Other agencies
may have their own requirements for approval of civil settlements. For
example, an agency may require headquarters approval of global settlement.
If the affected client agencies require concurrence, such concurrence must
be obtained from them prior to entering into a global settlement.
4. There should be separate documents memorializing
the criminal plea agreement and the civil settlement. The criminal
plea agreement and the civil settlement should be set out in separate documents.
Criminal releases should be made only in the criminal plea agreement documents,
and civil releases in the civil documents.
5. A defendant may not trade civil relief in
exchange for a reduction in criminal penalty. As noted in #2., above,
the criminal plea agreement must satisfy the appropriate Department criteria.
We urge early consultation on any proposal for
a possible global settlement. Requests for approval of a global settlement
must be accompanied by a memorandum describing the settlement and the reasons
why it should be approved. Requests should be submitted, at the latest,
three weeks in advance of the date by which the settlement must be finalized.
The memorandum should, at a minimum, address the
above criteria. With respect to criterion (5.) above, the memorandum should
include a description of the context in which the negotiations were carried
out sufficient to demonstrate that there is no trading between civil and
criminal penalties.
This policy provides only internal guidelines for
the Department of Justice. The guidelines do not create any rights, substantive
or procedural that are enforceable at law by any party. No limitations
are hereby placed on otherwise lawful prerogatives of the Department of
Justice.
Questions on the procedures to be followed for
a global settlement, including any of the criteria set forth above, should
be directed to either the Chief of the Environmental Crimes Section or
the Chief of the Environmental Enforcement Section of the Environment and
Natural Resources Division.
DATE: April 20, 1999
______________/S/_____________________
Lois J. Schiffer
1. This action is taken pursuant
to the authority set forth at 28 CFR § 0.130
2. The U.S. Attorney's Manual
states:
Without the express approval of the Assistant Attorney
General, Environment and Natural Resources Division, in any criminal case
arising under the statutes identified in USAM 5-11.101 no plea agreement
will be negotiated which compromises the right of the United Sates to any
civil or administrative remedies under those statutes. Efforts by defendants
to effect such remedies may arise in the context of so-called "global settlement"
offers.
USAM § 5-11.115 (August 23, 1994). "Global
settlements" under this provision differ from the term as used elsewhere
in the Manual to identify multi-district criminal plea agreements. See
USAM § 9-27.641. |