DOJ Announces Whistleblower Non-Prosecution Pilot Program for the Southern District of Florida

The U.S. Department of Justice (DOJ) has announced a special Whistleblower Non-Prosecution Pilot Program for the Southern District of Florida. Created by the U.S. Attorney’s Office for the Southern District of Florida, the whistleblower pilot program is intended to encourage disclosure by individuals who participated in qualifying non-violent criminal activity.

This distinguishes the Whistleblower Non-Prosecution Pilot Program from other federal whistleblower programs—including the DOJ’s recently announced whistleblower award pilot program. Most federal whistleblower programs provide protection and financial compensation to individuals who come forward about criminal activity or report corporate misconduct in which they were not directly involved. The Southern District of Florida’s Whistleblower Non-Prosecution Pilot Program is different. While it does not pay financial awards to those who come forward, whistleblowers who come forward under the program can avoid facing charges by entering into a non-prosecution agreement with the U.S. Attorney’s Office.

Qualifying Whistleblowers Can Avoid Prosecution for Crimes in Which They Participated

While the DOJ’s announcement highlights some of the key features of the Whistleblower Non-Prosecution Pilot Program, a Policy Statement from the U.S. Attorney’s Office for the Southern District of Florida discusses the program in greater detail. For example, the Policy Statement provides that individuals can use the program in two specific scenarios. The Whistleblower Non-Prosecution Pilot Program applies when an individual discloses criminal conduct “undertaken by or through”:

• “[P]ublic or private companies, exchanges, indexes, financial institutions, investment advisers, investment firms, or investment funds involving fraud or corporate control failures or affecting market integrity;” or,
• “[C]riminal conduct involving state or local bribery or fraud relating to federal, state, or local funds.”

Within these two broad categories, the DOJ’s announcement also indicates that the Whistleblower Non-Prosecution Pilot Program is focused on aiding in prosecuting four main types of federal crimes. These are:

• Financial Crimes – Financial crimes range from investment fraud, intellectual property theft, and embezzlement to fraud under the Paycheck Protection Program (PPP) and other government programs.
• Corporate Crimes – Corporate crimes range from accounting fraud and making false statements in public filings to market manipulation and other criminal schemes.
• Healthcare Fraud – Healthcare fraud cases typically focus on fraud under Medicare, Medicaid, and other federal benefit programs, though they can also involve private insurance fraud and other crimes.
• Public Corruption – Through the Whistleblower Non-Prosecution Pilot Program, the U.S. Attorney’s Office for the Southern District of Florida targets government personnel, public or private entities and individuals involved in bribery and other crimes.

If a qualifying whistleblower comes forward with information about one of these types of crimes, the U.S. Attorney’s Office for the Southern District of Florida will consider entering into a non-prosecution agreement with the whistleblower. As discussed below, to receive a non-prosecution agreement, the whistleblower must either meet a set of specific conditions; or, if the whistleblower does not meet these conditions, the U.S. Attorney’s Office may still choose to enter into a non-prosecution agreement if doing so “would be in the public interest and necessary in a particular case.”

Conditions for Securing a Non-Prosecution Agreement as a Whistleblower

Individuals who come forward with relevant information do not automatically qualify for protection under the Whistleblower Non-Prosecution Pilot Program. Rather, to qualify for protection, whistleblowers must generally meet the following conditions:

• The criminal conduct reported must not be known to the public and must not already be known to the U.S. Attorney’s Office for the Southern District of Florida (USAO-SDFL) or any other component of the DOJ;
• The whistleblower is not obligated to report the criminal conduct to the USAO-SDFL or any other agency;
• The whistleblower’s decision to come forward must not be “in response to a government inquiry by any federal law enforcement or regulatory agency on the subject matter of the disclosure;”
• The whistleblower must come forward “prior to an imminent threat of disclosure or government investigation;”
• The whistleblower must “[be] able to provide substantial assistance in the investigation and prosecution of one or more equally or more culpable persons, and [be] prepared to cooperate fully with the USAO-SDFL;”
• The whistleblower must “have a truthful and complete voluntary self disclosure of all criminal conduct in which the [whistleblower] has participated and of which the [whistleblower] is aware;”
• The whistleblower is not an elected or appointed federal law enforcement official, an agent of a federal investigative or law enforcement agency, a chief executive officer or chief financial officer of the company involved, or another person “who exercises primary control over the operations of the organization where the misconduct occurred;”
• The whistleblower has not engaged in previously unknown criminal conduct, including violent criminal conduct, a sex offense involving force, or an offense involving terrorism or implicating national security or foreign affairs; and,
• The whistleblower does not have a prior felony conviction (subject to certain exceptions). 
• Additionally, the Policy Statement for the Whistleblower Non-Prosecution Pilot Program states that to qualify for a non-prosecution agreement, a whistleblower must “(i) forfeit or disgorge proceeds involved in the [whistleblower’s] criminal misconduct; and (ii) pay restitution to victims consistent with the [whistleblower’s] role in the offense.”
• As noted above, even if a whistleblower does not meet the conditions outlined in the Policy Statement, the U.S. Attorney’s Office for the Southern District of Florida may still enter into a non-prosecution agreement if doing so is in the interests of justice. In these cases, the U.S. Attorney’s Office will consider the following factors in determining whether a non-prosecution agreement is warranted:
• “Whether and to what extent the criminal conduct has previously been made public or was previously known to the USAO-SDFL or to any component of the DOJ;
• “Whether the individual disclosed the criminal conduct voluntarily to the USAO-SDFL and not in in response to a government inquiry or reporting obligation to USAO-SDFL or to any component of the DOJ, and prior to imminent threat of disclosure or government investigation;
• “The extent to which the individual is able to provide substantial assistance in the investigation and prosecution of one or more equally or more culpable persons and the individual’s culpability relative to others;
• “Whether the individual has truthfully and completely disclosed all criminal conduct in which the individual has participated and which the individual is aware;
• “The extent to which the individual occupies any official or leadership position or other position of public or private trust;
• “The adequacy of non-criminal sanctions, including but not limited to, remedies imposed by civil regulators; and
• “The individual’s criminal history.”

Whether you are seeking a non-prosecution agreement based on the qualifying conditions listed above or because you believe that non-prosecution in exchange for the information that you have in your possession is in the interests of justice, it will be important for you to proceed carefully. Protection under the Whistleblower Non-Prosecution Pilot Program is not guaranteed; and, if you come forward without ensuring that you qualify for protection, your attempt to do the right thing could lead to serious federal charges.

Should You Come Forward Under the Whistleblower Non-Prosecution Pilot Program?

With this in mind, should you come forward under the Whistleblower Non-Prosecution Pilot Program? If so, how should you proceed?

The Whistleblower Non-Prosecution Pilot Program is different from other federal whistleblower programs in three critical respects. Unlike other federal whistleblower programs, to qualify as a whistleblower under the Whistleblower Non-Prosecution Pilot Program in the Southern District of Florida, you must:

• Have participated in corrupt activity or financial, corporate, or healthcare-related criminal conduct that exposes you to federal prosecution in the Southern District of Florida;
• Be able to either (i) satisfy all of the conditions for serving as a whistleblower under the program, or (ii) demonstrate that non-prosecution is “in the public interest and necessary in [your] case;” and,
• Be willing to accept non-prosecution (with disgorgement and restitution) in exchange for coming forward—as whistleblower awards are not paid under the program.

Given these criteria and the risk of facing prosecution if you do not secure protection as a whistleblower, we strongly advise consulting with a lawyer before you contact the U.S. Attorney’s Office. If you appear to qualify for protection under the Whistleblower Non-Prosecution Pilot Program, your lawyer can contact the U.S. Attorney’s Office on your behalf and ensure that you qualify for protection before disclosing your identity. However, if you decide to blow the whistle, it will ultimately be up to you to share what you know and cooperate with the government’s investigation and prosecution.

At Oberheiden P.C., we have extensive experience representing federal whistleblowers and representing defendants in high-stakes federal cases. Several of our attorneys are former U.S. Attorneys, Assistant U.S. Attorneys, and DOJ prosecutors. If you have questions about coming forward, we can explain everything you need to know, and we can help you make informed and strategic decisions about your next steps.

Speak with a Federal Whistleblower and Defense Lawyer at Oberheiden P.C. in Confidence

If you would like to know more about the Whistleblower Non-Prosecution Pilot Program in the Southern District of Florida—or any of the federal government’s other federal whistleblower programs—we invite you to get in touch. To speak with a senior lawyer at Oberheiden P.C. in confidence, please call 888-680-1745 or contact us confidentially online today.