9-23.140
Authority to Initiate Immunity Requests
Assistant United States Attorneys, with the approval of the
United States Attorney or, in his or her absence, a supervisory
Assistant United States Attorney, and Department attorneys, with
the approval of an appropriate Assistant Attorney General or Deputy
Assistant Attorney General of DOJ, may initiate requests to compel
testimony under the use immunity statute.
9-23.210
Decision to Request ImmunityThe Public Interest
Section 6003(b) of Title 18, United States Code, authorizes a
United States Attorney to request immunity when, in his/her
judgment, the testimony or other information that is expected to be
obtained from the witness "may be necessary to the public
interest." Some of the factors that should be weighed in making
this judgment include:
- The importance of the investigation or prosecution
to effective enforcement of the criminal laws;
- The value of the person's testimony or information to the
investigation or prosecution;
- The likelihood of prompt and full compliance with a compulsion
order, and the effectiveness of available sanctions if there is no
such compliance;
- The person's relative culpability in connection with the
offense or offenses being investigated or prosecuted, and his or
her criminal history;
- The possibility of successfully prosecuting the person prior
to compelling his or her testimony;
- The likelihood of adverse collateral consequences to the
person if he or she testifies under a compulsion
order.
These factors are not intended to be all-inclusive or to
require a particular decision in a particular case. They are,
however, representative of the kinds of factors that should be
considered when deciding whether to seek immunity.
9-23.211
Decision to Request ImmunityClose-Family Exception
When determining whether to request immunity for a witness,
consideration should be given to whether the witness is a close
family relative of the person against whom the testimony is sought.
A close family relative is a spouse, parent, child, grandparent,
grandchild or sibling of the witness. Absent specific
justification, the Department will ordinarily avoid seeking to
compel the testimony of a witness who is a close family relative of
the defendant on trial or of the person upon whose conduct grand
jury scrutiny is focusing. Such specific justification exists,
among other circumstances, where (i) the witness and the relative
participated in a common business enterprise and the testimony to
be elicited relates to that enterprise or its activities; (ii) the
testimony to be elicited relates to illegal conduct in which there
is reason to believe that both the witness and the relative were
active participants; or (iii) testimony to be elicited relates to
a crime involving overriding prosecutorial concerns.
9-23.212
Decision to Request ImmunityConviction Prior to Compulsion
It is preferable as a matter of policy to punish offenders for
their criminal conduct prior to compelling them to testify. While
this is not feasible in all cases, a successful prosecution of the
witness, or obtaining a plea of guilty to at least some of the
charges against the witness, will avoid or mitigate arguments of
co-defendants made to the court or jury that the witness "cut a
deal" with the government to avoid the witness's own conviction and
punishment.
9-23.214
Granting Immunity to Compel Testimony on Behalf of a Defendant
As a matter of policy, 18 U.S.C. § 6002 will not be
used to compel the production of testimony or other information on
behalf of a defendant except in extraordinary circumstances where
the defendant plainly would be deprived of a fair trial without
such testimony or other information. This policy is not intended to
preclude compelling a defense witness to testify if the prosecutor
believes that to do so is necessary to a successful prosecution.
9-23.250
Immunity for the Act of Producing Records
The Supreme Court has interpreted the Fifth Amendment privilege
against self-incrimination to include the act of producing business
records of a sole proprietorship. United States v. Doe, 465
U.S. 605 (1984). The act of producing records concedes the
existence and possession of the records called for by the subpoena
as well as the respondent's belief that such records are those
described in the subpoena. Requests for immunity for the limited
purpose of obtaining records pursuant to Doe should clearly
state this fact in the application.
The same letter of authority is issued by DOJ for the
production of records as for testimony. See the
Criminal Resource Manual at 722 (Letter of
Authority). Therefore, prosecutors should draft the court order to
clearly limit the grant of immunity to the act of producing records
pursuant to Doe, supra.
9-23.400
Authorization to Prosecute after Compulsion
After a person has testified or provided information pursuant
to a compulsion orderexcept in the case of act-of-production
immunityan attorney for the government shall not initiate or
recommend prosecution of the person for an offense or offenses
first disclosed in, or closely related to, such testimony or
information without the express written authorization of the
Attorney General. Such requests for authorization should be sent to
the Assistant Attorney General for the division that issued the
letter of authority for requesting the original compulsion
order.
The request to prosecute should indicate the circumstances
justifying prosecution and the method by which the government will
be able to establish that the evidence it will use against the
witness will meet the government's burden under Kastigar v.
United States, 406 U.S. 441 (1972).
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