USA Law and Practice Contributed by: Daniel J. Fetterman and Brian S. Choi, Kasowitz LLP
will protect the confidentiality of the whistle-blower except as required by law or some other compelling need or interest.
prosecution or deferred prosecution agreement are case specific, the government typically enters into these agreements where the defendant has voluntarily and promptly disclosed its misconduct, co-operated with the government’s investigation, and engaged in remedial steps. 6.2 Sanctions and Sentencing Individuals convicted of a crime are subject to a sen - tence of imprisonment, fines, forfeitures of assets, and supervised release or probation. Companies that are convicted of a crime are subject to a fine, forfeiture of assets, and other consequences, such as debarment. In federal court, judges are required to apply the sentencing factors set forth in 18 U.S.C. 3553 (a). Among other things, under Section 3553 (a), courts are guided by the principle that they should impose a sentence that is “sufficient, but not greater than nec - essary” to achieve the goals of sentencing. The goals of sentencing under Section 3553 (a) are to reflect the seriousness of the offence, promote respect for the law, and provide a just punishment for the offence. Other goals include adequate deterrence to criminal conduct; protection of the public from further crimes of the defendant; and provision to the defendant of the necessary education or vocational training, medi - cal care, or other correctional treatment. In addition, federal courts are required to consider – but are not required to impose – a sentence that falls within the guidelines range recommended by the Federal Sen - tencing Guidelines. Thus, courts will consider mitigating circumstances and factors in evaluating whether a specific sentence is sufficient to satisfy the goals of sentencing. Miti - gating factors include the personal background and characteristics of the defendant, his or her role in the offence, his or her mental and physical health, his or her remorse and rehabilitation, and the lack of a criminal history. Mitigating factors for corporations include whether they have an effective compliance programme, whether they self-reported the conduct and co-operated with the government, the nature and extent of their role in the offence, acceptance of responsibility, and any other remedial efforts they have taken. Such factors may, in the court’s discretion, sup - port a more lenient sentence.
6. Resolutions, Sanctions and Remedies
6.1 Prosecution and Resolution Mechanisms Financial crime cases are principally resolved in three ways. First, the government may prosecute a defend - ant charged with a financial crime and obtain a con - viction if it successfully proves beyond a reasonable doubt that the defendant committed the crime. If the defendant is convicted after a trial, he or she will be sentenced by the court to a term of imprisonment, a fine, or both. Second, a defendant may choose to plead guilty, and in most cases will negotiate an agreement with the government under terms and conditions that are more favourable than if the defendant were convicted at trial. Under a plea agreement, the defendant must allocute to (admit to) having engaged in conduct that constitutes the offences to which he or she is plead - ing guilty and admit that he or she knew what he or she was doing was wrong. Very often a defendant and the government also will agree to the calcula - tions under the advisory Federal Sentencing Guide - lines, which every federal judge must consider when determining a defendant’s sentence. Some defend - ants – in the hopes of obtaining a reduced or no sen - tence of imprisonment – may seek to enter into a plea agreement known as a co-operation agreement which requires that he or she agree to co-operate with the government’s prosecution and provide any requested information and truthful testimony in support of the government’s prosecution. If the government agrees, the co-operation is provided in exchange for the gov - ernment’s agreeing – if it determines it is appropriate – to write a letter to the court informing it of the nature and extent of the defendant’s co-operation that the court can take into consideration when determining what sentence to impose. Third, the government may decline or defer prosecu - tion after considering the evidence relevant to the financial crime. While the circumstances of a non-
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