On April 15, 2024, the Department of Justice released its “Criminal Division’s Pilot Program on Voluntary Self-Disclosures for Individuals.” Similar in many ways to programs introduced earlier this year by the U.S. Attorney’s Offices in the Southern District of New York and the Northern District of California, the Pilot Program is intended to provide a level of “transparency” and, presumably, predictability as to when the Criminal Division will offer a non-prosecution agreement (”NPA”) to an individual who “voluntarily self-discloses” information about “criminal misconduct.”

The Pilot Program has as a central goal the investigation and prosecution of “crimes by, through, or related to corporations.” The Criminal Division’s Pilot Program on Voluntary Self-Disclosures for Individuals, April 15, 2024, U.S. Department of Justice.

As every federal criminal practitioner knows, an NPA — an agreement under which the Government agrees not to prosecute an individual with potential criminal exposure in exchange for the individual’s agreement to cooperate with the Government’s investigation — is an extraordinary (and often the absolute best) result in cases where a client has any level of criminal exposure. It is the result many of us spend our days and nights pursuing on behalf of our clients, at least where there is any remote possibility it might be obtained.

One would expect, then, that a program providing predictability and transparency into the Criminal Division’s process for offering NPAs would result in significantly more self-disclosure and resultant NPAs. The Pilot Program does provide some level of additional guidance and transparency and is laudable in its objective to further the Department’s goal of “vigorously investigating and prosecuting federal criminal offenses.”

However, because the Pilot Program contains still too much uncertainty and risk, it is likely that many defense counsel will remain hesitant to advise clients to self-disclose in the hopes of obtaining an NPA under the Program.

Here are some of the principal requirements that many in the criminal defense bar will see as not sufficiently alleviating the risk of self-disclosure:

• The “original information” requirement: Under the Pilot Program, the reporting individual must disclose “original information,” meaning “non-public information not previously known to the Criminal Division or to any component of the Department of Justice.” In practice, it may be difficult for counsel to know whether their client’s information is already “known” to some component of the Department. This risk is particularly significant in the context of corporate crime, which is a stated focus of the Pilot Program. It will frequently be difficult or impossible for a corporate employee or counsel to know whether someone else within an often-large corporation has already provided the information, or indeed whether the Government has learned it independently, e.g., from a victim or regulatory filing, rendering the information not “original.”
• The “voluntariness” requirement: Under the Pilot Program, the disclosure must be “voluntary,” which is defined to encompass three sub-elements. Two of these are fairly certain, namely that the disclosure be made “before any request, inquiry, or demand that relates to the subject matter of the submission” is made to the individual or their representative by the Department or federal law enforcement, regulatory, or civil enforcement agency and, second, that the individual has “no preexisting obligation pursuant to an agreement” with the authorities “to report the information.” A third element of the voluntariness inquiry, however, injects significant uncertainty and risk. That is, the requirement that the disclosure be made “in the absence of any government investigation or threat of imminent disclosure to the government or the public.” As with the “original disclosure” requirement, it may be difficult to know, in advance, whether there is any ongoing “government investigation.”
• The “truthful and complete” requirement: Under the Pilot Program, the disclosure must include “all information known to the individual related to any misconduct,” including “the complete extent of the individual’s own role in the misconduct.”

This requirement is sensible but, as every federal criminal practitioner knows, even with the best intentions, it is difficult to ensure that “all” information related to “any” misconduct — i.e., with absolute completeness and accuracy — is obtained at an early stage and then fully conveyed to the Government in a self-disclosure.

• The “cooperation and substantial assistance” requirement: Although the Pilot Program’s requirement of “full cooperation” is clear and achievable for clients who are properly advised on the (significant) commitment this entails (including, potentially, “working in a proactive manner” with law enforcement — e.g., wearing a wire to record subjects of the investigation), the Pilot Program also requires the individual to be “willing and able to provide substantial assistance” in the Department’s investigation. “Substantial assistance” is not a statutorily defined term and is necessarily subject to a fact sensitive analysis. It is also likely variable both among the Criminal Division’s various units and even as to trial attorneys and supervisors within those units. Defense counsel may be hard pressed to reliably predict whether their clients’ information and circumstances will result in “substantial assistance” in an investigation that has not yet even begun.

These are just a few of the uncertainties and risks raised by the Pilot Program. None of this is to say that the Program is without value.

The Pilot Program admirably provides a concrete framework and additional transparency to what has long been an opaque and somewhat unpredictable process. But given the “play in the joints” remaining, many defense counsel will be reluctant to advise clients to expose themselves to criminal prosecution in the hopes of obtaining an NPA with the uncertainty and unpredictability that remains.

Republished with permission. This article, "Criminal Division’s new voluntary self-disclosure program still uncertain and risky," was originally published on Reuters Legal News and Westlaw Today on April 29, 2024.