“For the plea system to work in practice, defense counsel and defendants must be able to rely on the written promises made by the government and trust that courts will honor and enforce those promises down the road, even when it means that the Department must forego a meritorious prosecution,” the association wrote.
https://www.courthousenews.com/doj-turmoil-adds-fuel-to-ghislaine-maxwell-bid-to-duck-conviction/
“Conclusion
In light of the circuit split, DOJ policy will be
of particular importance to defense counsel
in dealing with the government. Under DOJ
policy, which aligns closely with the Second
Circuit’s rule, “no district or division shall make
any agreement, including any agreement not
to prosecute, which purports to bind any other
district(s) or division without the approval of the
United States Attorney(s) in each affected district and/or the appropriate Assistant Attorney
General.” Justice Manual § 9-27.641 (updated
Feb. 2018). The justice manual recognizes
multi-district or “global” agreements to resolve
criminal conduct affecting multiple districts, so
long as the district or division making the agreement receives preapproval. See Justice manual
§ 9-27.641.
In the absence of a preapproved multi-district
resolution, DOJ’s “petite policy” is fully applicable. Under that well-established DOJ policy, subsequent federal prosecution by another district
or division is disfavored if that prosecution is
“based on substantially the same act(s) or transactions” as a prior state or federal prosecution.
Justice Manual § 9-2.031 (updated Jan. 2020).
Consequently, for defense counsel who have clients with broad geographical exposure, familiarity with the law in different circuits, and with DOJ
policy, is important to understanding the scope
of protection afforded by a plea agreement—at
least until the Supreme Court addresses the current circuit split.
Elkan Abramowitz and Jonathan Sack are members of Morvillo Abramowitz Grand Iason & Anello.
https://static.maglaw.com/docs/Abramowitz%20Sack%20NYLJ%2011.1.24.pdf