I have a defendant that fled the US before he could be tried on State charges. He has been gone 25 years. He was also indicted in Federal court for related charges. Several years ago the Feds dismissed their charges without prejudice. The defendant has returned to the US and has turned himself in. We are on the verge of a plea arrangement but his attorney is concerned that the Feds could use his plea to revive the old case and come after him. I think that is very unlikely but need some tool to prevent that from happening.

Of course, in Texas we use Sec 12.45 for charges in the same county as well as charges in other counties by just having the prosecutor and court in the "barred" case sign off on the agreement. I suppose that would work with the Feds but we need something that the Federal Courts will recognize as a bar. I have heard of Non-Prosecution Agreements used in Federal Court pleas but they don't seem to apply. Anyone done this? Is there some equivalent motion and order in Federal system? Perhaps a letter from the AUSA in charge? Thoughts?

I would speak with the US Attorney's office in the jurisdiction that could prosecute him and proceed cautiously. Your appellate department will want the understanding of all parties to be clear and on the record. You'll want to be right about any representations you make. Otherwise you may face an attack on the plea agreement via a writ, if the Feds take an action other than what was represented and on which the defendant relied in accepting the plea agreement. In some cases, such a writ could mean having the plea agreement undone and having to re-negotiate with more time having passed.

Tuck,

How you are my friend? I recently left service as a federal prosecutor and can tell you that likely under the Petite policy, you can easily get a letter from the AUSA stating no federal charges will be sought. Let me know if you need some help contacting the AUSA. I still have some great contacts in the Southern District.

I am sure you are aware, but the Petite policy is the United States Department of Justice policy, named after Petite v. United States, 361 U.S. 529 (1960). The formal name of the policy is "Dual and Successive Prosecution Policy" and it "establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding."

Best,

Cory