U.S. Attys. Manual-Prosecution of Organizations

• Author: Judson W. Starr/Amy J. McMaster/John F. Cooney/Joseph G. (Jerry) Block/David G. Dickman
• Pages: 239-261

Page 239

US Attorneys >USAM >Title 9 > USAM Chapter 9-28.000

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9-28.000

PRINCIPLES OF FEDERAL PROSECUTION OF

BUSINESS ORGANIZATIONS [FN1]

9-28.100 Duties of Federal Prosecutors and Duties of Corporate Le aders

9-28.200 General Considerations of Corporate Liability

9-28.300 Factors to Be Considered

9-28.400 Special Policy Concerns

9-28.500 Pervasiveness of Wrongdoing Within th e Corporation

9-28.600 The Corporation's Past History

9-28.700 The Value of Cooperation

9-28.710 Attorney-Client and Work Product Protections

9-28.720 Cooperation: Disclosing the Relevant Facts

9-28.730 Obstructing the Investigation

9-28.740 Offering Cooperation: No Entitlement to Immunity

9-28.750 Qualifying for Immunity, Amnesty, or Reduced Sanctio ns Through

Voluntary Disclosures

9-28.760 Oversight Concerning Demands for Waivers of Attorney -Client

Privilege or Work Product By Corporations Contrary to This Policy

9-28.800 Corporate Compliance Programs

9-28.900 Restitution and Remediation

9-28.1000 Collateral Consequences

9-28.1100 Other Civil or Regulatory Alternatives

9-28.1200 Selecting Charges

9-28.1300 Plea Agreements with Corporations

9-28.100 Duties of Federal Prosecutors and Duties of Corporate

Leaders

The prosecution of corporate crime is a high priority for the Department of

Justice. By investigating allegations of wrongdoing and by bringing charges where

appropriate for criminal misconduct, the Department p romotes critical public

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Page 240 Environmental Crimes Deskbook 2nd Edition

interests. These interests include, to take just a few examples: (1) protecting the

integrity of our free economic and capital markets; (2) protecting consumers,

investors, and business entities that compete only through lawful means; and (3)

protecting the American people from misconduct that would violate criminal laws

safeguarding the environment.

In this regard, federal prosecutors and corporate leaders typically sha re

common goals. For example, directors and officers owe a fiduciary duty to a

corporation's shareholders, the corporation's true owners, and the y owe duties of

honest dealing to the investing public in connection with the corporation's

regulatory filings and public statements. The faithful execution of these duties by

corporate leadership serves the same values in promoting public trust and

confidence that our criminal cases are designed to serve.

A prosecutor's duty to enforce the law requires the investi gation and

prosecution of criminal wrongdoing if it is discovered. In carrying out this mission

with the diligence and resolve necessary to vindicate the impo rtant public interests

discussed above, prosecutors should be mindful of the common cause we share

with responsible corporate leaders. Prosecutors should also be mindful that

confidence in the Department is affected both by the results we achieve an d by the

real and perceived ways in which we achieve them. Thus, the manner in which we

do our job as prosecutors—including the professionalism we dem onstrate, our

willingness to secure the facts in a manner that encourages corporate compl iance

and self- regulation, and also our appreciation that corporate prosecutions can

potentially harm blameless investors, employees, and others—affects p ublic

perception of our mission. Federal prosecutor s recognize that they must maintain

public confidence in the way in which they exercise their charging discretion. This

endeavor requires the thoughtful analysis of all facts and circumstances presented

in a given case. As always, professionalism and civility play an important part in the

Department's discharge of its responsibilities in all areas, including the area of

corporate investigations and prosecutions.

[new August 2008]

9-28.200 General Considerations of Corporate L iability

A. General Principle : Corporations should not be treated leniently because of

their artificial nature nor should they be subject to harsher treatment. Vigo rous

enforcement of the criminal laws again st corporate wrongdoers, where

appropriate, results in great benefits for law enforcement and the public,

particularly in the area of white collar cri me. Indicting corporations for

wrongdoing enables the government to be a force for positiv e change of

corporate culture, and a force to prevent, discover, and punish serious crimes.

B. Comment: In all case s involving corporate wrongdoing, prosecutors should

consider the factors discussed further below. In doing so, prosecutors should

be aware of the public benefits that can flow from indicting a corporation in

appropriate cases. For instance, corporations are l ikely to take immediate

remedial steps when one is indicted for criminal m isconduct that is pervasive

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