United States of America v. HSBC Bank USA, N.A.
OPINION, Concurring, by Judge RSP, FILED. [16-308, 16-353, 16-1068, 16-1094]
Case 16-308, Document 206, 07/12/2017, 2076470, Page1 of 5
POOLER, Circuit Judge:
I concur in the opinion and the judgment, but write separately to suggest
that it is time for Congress to revisit the issue of deferred and nonprosecution
agreements (collectively, “DPAs”).
DPAs exist because Section 3161(h)(2) of the Speedy Trial Act excludes
“[a]ny period of delay during which prosecution is deferred by the attorney for
the Government pursuant to written agreement with the defendant, with the
approval of the court, for the purpose of allowing the defendant to demonstrate
his good conduct.” 18 U.S.C. § 3161(h)(2). Without this exception, the filing of
the criminal information would trigger the running of the speedy trial clock.
The Senate Judiciary Committee explained that this section was included
in the Act:
to encourage the current trend among United States
attorneys to allow for deferral of prosecution on the
condition of good behavior. A number of Federal and
State courts have been experimenting with pretrial
diversion or intervention programs in which
prosecution of a certain category of defendants is held
in abeyance on the condition that the defendant
participate in a social rehabilitation program. If the
defendant succeeds in the program, charges are
dropped. Such diversion programs have been quite
successful with first offenders in Washington, D.C.
(Project Crossroads) and in New York City (Manhattan
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Court Employment Project). Some success has also been
noted in programs where the defendantʹs alleged
criminality is related to a specific social problem such as
prostitution or heroin addiction. Of course, in the
absence of a provision allowing the tolling of the speedy
trial time limits, prosecutors would never agree to such
diversion programs. Without such a provision the
defendant could automatically obtain a dismissal of
charges if prosecution were held in abeyance for a
period of time in excess of the time limits set out in
section 3161 (b) and (c). This section of S. 754 differs
from its counterpart in S. 895. It now requires that
exclusion for diversion only be allowed where deferral
of prosecution is conducted “with approval of the
This assures that the court will be involved in the
decision to divert and that the procedure will not be
used by prosecutors and defense counsel to avoid the
speedy trial time limits.
S. Rep. No. 93–1021, at 36–37 (1974)).
The two programs mentioned in the legislative history, Project Crossroads
and the Manhattan Court Employment Project, were pretrial diversion programs
aimed at helping individual defendants avoid the collateral consequences of a
criminal conviction through programs that included education, job training, and
substance abuse treatment. See, e.g., Note, Pretrial Diversion from the Criminal
Process, 83 Yale L.J. 827 (1974). The programs were viewed as “a functional
equivalent of a sentence to pretrial probation,” id. at 843, and were staffed with
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paraprofessionals overseeing individuals in what was, “in effect a probationary‐
type of supervision and control,” id. at 845.
In recent years, however, DPAs increasingly are used not to divert
individual defendants but rather to divert corporations from criminal charges.
Unlike individuals, corporations are not diverted into probation‐like programs
supervised by paraprofessionals. Rather, they enter into negotiated agreements
with prosecutors that set forth the facts to which the corporation admits and a
remedy that typically includes both a fine and an agreement for the corporation
to make structural changes. The prosecution retains sole discretion to decide if
the corporation adequately complied with the agreement, allowing the
prosecution to act as prosecutor, jury, and judge. Prosecutors can enforce legal
theories without such theories ever being tested in a court proceeding.
Using DPAs in this manner is neither improper nor undesirable. An
indictment alone can deal a death blow to a corporation, with severe collateral
consequences for blameless employees and shareholders. As the law governing
DPAs stands now, however, the prosecution exercises the core judicial functions
of adjudicating guilt and imposing sentence with no meaningful oversight from
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I respectfully suggest it is time for Congress to consider implementing
legislation providing for such review. See United States v. Saena Tech Corp., 140 F.
Supp. 3d 11, 30 n.9 (D.D.C. 2015) (“This ambiguity, combined with the fact that
Congressʹs original purpose had nothing to do with the broad‐ranging corporate
deferred‐prosecution agreements that have become commonplace, suggests that
congressional action to clarify the standards a court should apply when
confronted with a corporate deferred‐prosecution agreement may be
A bill introduced in the House in 2014 would, among other things, require
the development of public, written guidelines for DPAs; require the text of
DPAs to be placed on a Justice Department website; and require DPAs to be
submitted to district courts for review. Accountability in Deferred Prosecution
Act of 2014, H.R. 4540, 113th Cong. (2014). Courts would be charged with
“approv[ing] the [DPA] if the court determines the [DPA] is consistent with the
guidelines for such agreements and is in the interests of justice.” Id. at § 7(a). In
addition, the parties and any monitors would be required to file quarterly
reports regarding the progress toward completions of the DPA with the court. Id.
at § 7(b). Finally, the court would be charged with “review[ing] the
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implementation or termination of the [DPA], and take any appropriate action, to
assure that the implementation or termination is consistent with the interests of
justice.” Id. at § 7(c). Legislation along the lines of this proposed act would
restore some balance in the DPA process.
Accordingly, I respectfully concur.
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