Non-prosecution and deferred prosecution agreements have become pretty standard for corporate defendants. Here's a list of them in recent years, with links to the actual agreements.
Deferred Prosecution Agreements (“DPAs”) and Non-prosecution Agreements (“NPAs”) are considered a form of pre-trial diversion. D.O.J. also has pre-trial diversion agreements, which seem a lot simpler to me.
The offender must acknowledge responsibility for his or her behavior, but is not asked to admit guilt. The period of supervision is not to exceed 18 months.
Who is eligible? Anyone who is not:
- Accused of an offense which, under existing Department guidelines, should be diverted to the State for prosecution;
- A person with two or more prior felony convictions;
- A public official or former public official accused of an offense arising out of an alleged violation of a public trust; or
- Accused of an offense related to national security or foreign affairs.
The deferred and non-prosecution agreements can be pretty onerous. I can't see Kim Dotcom agreeing to one with terms like this, entered three weeks ago by MoneyGram, Int'l.
In April, AOL entered this non-prosecution agreement for aiding and abetting securities fraud in the Eastern District of Virginia (where Kim Dotcom is charged.)
While such an agreement might allow DOJ to save some face and salvage something of the case, I don't see that it offers much to Megaupload and Kim DotCom. Most of the agreements seem to require monitoring of the business and cooperation with the Government. Also, I can't see the Government agreeing to return the Megaupload website or the seized money -- or the Carpathia servers the data is stored on.
Kim DotCom keeps getting stronger in New Zealand. Last night, he appeared with the Mayor of Auckland and turned on the Christmas lights. He's now eligible under NZ law to buy his $30 million mansion, which he has said he wants to do.
Kim Dotcom may want to keep pushing for vindication -- especially since his extradition hearing is unlikely to occur before July. His army of lawyers here and in NZ have been doing great work. Disclosures in recently unsealed search warrant affidavits pose new problems for the Government.
Evidence has emerged showing the Department of Homeland Security served a search warrant on Mr Dotcom's file-sharing company Megaupload in 2010 which he claims forced it to preserve pirated movies found in an unrelated piracy investigation. Mr Dotcom said Megaupload co-operated with the US Government investigation into copyright pirates NinjaVideo and was legally unable to delete the 39 movies identified in the search warrant.
Mr Dotcom said: "We were informed by (the US Government) we were not to interfere with the investigation. We completely co-operated. "Then the FBI used the fact the files were still in the account of the ... user to get the warrant to seize our own domains. This is outrageous."
Dotcom lawyer Ira Rothken says:
He said the discovery of the FBI's evidence of wrongdoing was part of a "trail of misconduct" stretching from the US to New Zealand which would ultimately lead to asking for the FBI charges to be dismissed.
"What we have uncovered, in our view, is misleading conduct. It looks like the Government wants the confidentiality because they would be concerned their conduct would be scrutinised."
Of course it's possible Kim Dotcom and the other defendants could lose the extradition battle and get convicted in Virginia. But he's got a lot in his favor, and I think we don't know the half of it. I hope he keeps fighting.
