5-11.103
Notice of Case Initiation
|
The Case Initiation Report formerly described in the United States
Attorneys' Manual for environmental crimes is abolished. When a United
States Attorney's Office opens a case file for an environmental case or
matter, the Office will inform the Environmental Crimes Section, which it
may do by entering the case or matter in the Department's computerized case
tracking system and identifying the case type as "environmental." If the
case or matter is not identified as "environmental" in the case tracking
system (for example, due to data entry limitations), the office will inform
the Environmental Crimes Section by telephone or in writing. When ECS
opens a case file to initiate a case or matter, the Section Chief will
provide notice to the United States Attorney for the district in which the
crime is alleged to have occurred and will confer with the United States
Attorney's Office pursuant to USAM
5-11.104 or USAM 5-11.105.
5-11.104
Responsibility for Case Development and
Prosecution
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Responsibility for the approval, investigation, and prosecution of
environmental crimes, except in cases of national interest, normally rests
with the United States Attorney's Office. With the agreement of the United
States Attorney's Office, ECS may participate as a partner, as the lead, or
otherwise in such cases. Cooperation and consultation between United States
Attorney's Offices and ECS is encouraged, in order to make the most
effective use of the Department's resources. When ECS participates in a
case, there should be a clear understanding between the offices concerning
the allocation of case responsibility.
[cited in USAM 5-11.103;
USAM 5-11.109]
5-11.105
Cases of National Interest
|
A case is of national interest if it is a case that presents a novel
issue of law (including the first case under a statute, provision, or
regulation), a case with simultaneous investigations in multiple districts
(unless the United States Attorney's Offices in each such district and the
ECS conclude that national interests are not involved), a case with
international or foreign policy implications, or an urgent or sensitive case
as defined in USAM 1-10.230.
In a case of national interest, the United States Attorney's Office and ECS
will participate jointly as co-counsel from the initiation of the
investigation through prosecution, unless otherwise agreed. A case may be
identified as one of national interest by the United States Attorney's
Office or the Assistant Attorney General for the ENRD.
[cited in
USAM 5-11.103]
5-11.106
Exchanging Case Information
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Among ECS' other responsibilities, it is a clearinghouse for information
about environmental prosecutions and a source of expertise about the
handling of such cases. United States Attorney's Offices are encouraged to
communicate with ECS early in environmental investigations and prosecutions
to benefit from ECS' information and expertise, and to provide ECS with
information about successes, obstacles, and strategies that ECS may share
with other prosecutors. As part of this consultation, United States
Attorney's Offices are encouraged to provide ECS with advance notice of
indictments. United States Attorney's Offices are encouraged to consult
with ECS on indictments and other matters with sufficient lead time to
allow ECS to have time to provide meaningful input. In any event, United
States Attorney's Offices will provide copies of indictments or
informations within two days after filing. The Attorney General expects
that ECS will participa te in implementing the Assistant Attorney
General's responsibilities pursuant to 28 C.F.R. § 0.65 and that each
United States Attorney's Office will provide information to ECS to assist it
in this purpose, including responding fully and expeditiously to reasonable
requests for information.
5-11.107
Notification of Case Resolutions
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When ECS is not participating in a case, the United States Attorney's
Offices shall provide ECS with notice of case resolutions by providing ECS
with copies of disposition documents (including any plea agreements) when
judgment is entered, except as provided in USAM 5-11.108 and 5-11.115.
5-11.108
Dismissals
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In the case of dismissal of indictments, informations, or complaints in
criminal cases involving violations of the statutes identified in USAM 5-11.101 except when a superseding
indictment has been returned or an information or a complaint has been filed
against the same defendant or when the individual defendant has died,
notification of the dismissal (or, in the case of a written dismissal, a
copy) shall be provided to ECS so that it is received seven days before
filing.
[cited in USAM 5-11.107]
5-11.109
Declinations
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When a United States Attorney's Office or ECS declines a case and writes
a substantive memo to the file or to the investigative agency, either
office will promptly provide a copy of the declination memo to,
respectively, ECS or the United States Attorney's Office for the district in
which the crime is alleged to have occurred. Nothing in USAM 5-11.104 is intended to limit ECS'
authority to prosecute a case declined by a United States Attorney's Office
after consultation with that office, nor shall these provisions limit the
authority of a United States Attorney's Office to prosecute a case that ECS
has declined for reasons that ECS advises do not involve policy
considerations.
5-11.110
Staffing
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The appointment of Special Assistant United States Attorneys shall be
approved by the United States Attorney of the relevant district and the
Assistant Attorney General for the ENRD. In their approval process, the
United States Attorney and the Assistant Attorney General should seek to
ensure sensible and efficient use of government resources.
5-11.111
Policy-Making, Support, and Other Functions
of
the ENRD
In addition to its litigation activities, ECS helps the ENRD fulfill
its other responsibilities:
- Setting policy nationally for the
prosecution of environmental crimes;
- Providing training to
United States Attorney's Offices, federal investigative agencies, and
others;
- Providing expertise, information, and support
concerning environmental prosecutions nationally, including providing a
clearinghouse of prosecution-related documents; and
- To use
environmental criminal enforcement to address environmental and compliance
problems, consistent with the standards of federal prosecution.
United States Attorney's Offices are encouraged to provide ECS with
copies of important pleadings, briefs, search warrant applications, grand
jury subpoenas, and similar case documents so that such documents can be
made available to other prosecutors.
5-11.112
Parallel Proceedings
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Because many of the environmental statutes specifically provide for
criminal, civil, and administrative sanctions (see, e.g., 33
U.S.C. § 1319(a), (b), (c), and (d)), this is an area of the law
especially susceptible to parallel proceedings. Such proceedings may be
appropriate, for example, when in the course of the civil case the
government receives evidence of deliberate violations of the law meriting
criminal prosecution or when a criminal investigation uncovers evidence of
an on-going violation causing environmental contamination which should be
stopped quickly through an injunctive action.
Although they may be appropriate in particular circumstances, parallel
proceedings must be handled carefully in order to avoid allegations of
improper release of grand jury material or abuse of civil process.
Therefore, in any case under any of the statutes identified in USAM 5-11.101 in whi ch parallel proceedings
arise, the United States Attorney's office shall contact the Environmental
Crimes Section for the purpose of coordinating the parallel proceedings.
See also USAM 1-12.000.
5-11.113
Coordination with State Programs
Most states have environmental enforcement programs which overlap, in
whole or in part, with federal programs. United States Attorneys should
familiarize themselves with state environmental enforcement laws and state
enforcement officials. Particular attention should be directed toward the
following aspects of state-federal relations in the environmental
enforcement field:
- State environmental enforcement
agencies may be a valuable source of information on suspected violations of
federal environmental statutes. United States Attorneys may be in a
position to assist in apprising state officials of the nature of the local
federal enforcement program and in developing methods for exchanging
information on suspected violations;
- State authorities often possess
evidentiary materials which are relevant to pending federal court
proceedings. United States Attorneys should be aware of the nature and
extent of the states' investigatory resources and should make provision in
appropriate circumstances for the exchange of information on pending cases
with state authorities;
- Frequently a particular activity constitutes
a violation of both federal and state law. When state officials are
proceeding with an environmental enforcement case which may include
violations of federal law, the United States Attorney in the affected
district should monitor that state activity. If it appears that all
federal interests in the case will be vindicated in the state court action,
action in federal court may be an unnecessary duplication of effort. On
the other hand, if federal interests will not be protected completely in
state court, federal proceedings may be warranted. See also USAM 9-2.031 and 9-27.240.
[updated March 2001]
5-11.114
Individual and Corporate Defendants
- Congress has demonstrated its intent that individuals, as well as
corporations, should be criminally prosecuted for violations of federal
environmental laws, see, e.g., 33 U.S.C. §§ 1319(c)(5) and 1362(5),
thereby recognizing the fact that the unlawful acts or omissions of
corporations actually can be traced to individual officers or employees.
That Congressional intent should be given serious consideration in the
development of prosecutions for violations of the statutes identified
under USAM 5-11.101.
- In any case against both a corporation and any of its individual
employees the willingness of the offending corporation to enter a guilty
plea is not a basis for dismissal as against the individual.
| 5-11.115
Plea Negotiations and Agreements—"Global
Settlements"—Alternative Sentencing
- Without the express approval of the Assistant Attorney General,
Environment and Natural Resources Division, in any criminal case arising
under the statutes identified in USAM5-11.101 no plea agreement will be
negotiated which compromises the right of the United States to any civil
or administrative remedies under those statutes. Efforts by defendants to
effect such results may arise in the context of so-called "global
settlement" offers.
- The Assistant Attorney General for the Environment and Natural
Resources Division will consider a policy for plea agreements that
include "alternative sentencing," meaning a sentence other than fine,
imprisonment, or restitution to specific entities for out-of-pocket
expenses.
-
[cited in USAM 5-8.600;
USAM 5-11.107]
5-11.116
Handling of Appeals
- All appeals in criminal cases arising under the statutes identified in
USAM 5-11.101 shall be handled as provided
for in USAM 5-8.300 and Title 2. When a United States Attorney's
Office makes a request to handle an appeal, such a request will be resolved
by agreement between the United States Attorney's Office and the Chief of
the Appellate Section of the Environment and Natural Resources Division. In
jointly resolving such a request, the following factors among any others
should be considered on a case-by-case basis and, if necessary,
discussed:
- The relative advantages in this case of staffing the appeal with an
Assistant United States Attorney who tried the case or with an appellate
lawyer who was not involved in the trial;
- The relative advantages
in this appeal of the United States Attorney's local perspective or the
Environmen t and Natural Resources Division's national perspective;
- Whether there are issues in this appeal on which components of the
government may have differing viewpoints; and
- The available
resources of each office, especially relative to the briefing and argument
schedule of the appeal.
- Copies of any draft briefs prepared by a
United States Attorney's Office on behalf of the government shall be
forwarded to the Appellate Section in sufficient time to allow review,
comment, and approval by the Section and the Assistant Attorney General.
Copies of any draft brief prepared by the Appellate Section shall be
forwarded to the United States Attorney's Office in sufficient time to
allow review, comment, and approval by that office. In any appeal, copies
of all other briefs by other parties shall be promptly forwarded by the
United States Attorney's Office to the Appellate Section.
-
[cited in USAM 5-5.161;
USAM 5-5.162]
5-11.117
Notice of Appeals
- USAM 2.200 describes the manner in which United States Attorney's
Offices forward notices of appeal or requests to take an appeal to the
Environment and Natural Resources Division. For environmental crimes, the
Division designates ECS as the unit to which such notices and requests
should be sent. ECS will forward the notices and requests to the Division's
Appellate Section.
5-11.118
Record on Appeal
- Whenever an appeal is taken in a case arising under any statute
identified in USAM 5-11.101 for which the
United States Attorney has taken primary trial level responsibility, and
that appeal is to be handled by the Environment and Natural Resources
Division, the United States Attorney is responsible for assembling and
transmitting to the Environment and Natural Resources Division those items
which constitute the record of the case of the trial court level.
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