9-2.001
Introduction
The United States Attorney, within his/her district, has plenary
authority with regard to federal criminal matters. This authority is
exercised under the supervision and direction of the Attorney General
and his/her delegates.
The statutory duty to prosecute for all offenses against the
United States (28 U.S.C. § 547) carries with it the authority
necessary to perform this duty. The USA is invested by statute and
delegation from the Attorney General with the broadest discretion in the
exercise of such authority.
The authority, discretionary power, and responsibilities of the
United States Attorney with relation to criminal matters encompass
without limitation by enumeration the following:
- Investigating suspected or alleged offenses against the
United States, see USAM 9-2.010;
- Causing investigations to be conducted by the appropriate
federal law enforcement agencies, see USAM 9-2.010;
- Declining prosecution, see USAM 9-2.020;
- Authorizing prosecution, see USAM 9-2.030;
- Determining the manner of prosecuting and deciding trial related
questions;
- Recommending whether to appeal or not to appeal from an adverse
ruling or decision, see USAM
9-2.170;
- Dismissing prosecutions, see USAM 9-2.050; and
- Handling civil matters related thereto which are under the
supervision of the Criminal Division.
9-2.010
Investigations
The United States Attorney, as the chief federal law enforcement
officer in his district, is authorized to request the appropriate
federal investigative agency to investigate alleged or suspected
violations of federal law. The federal investigators operate under the
hierarchical supervision of their bureau or agency and consequently are
not ordinarily subject to direct supervision by the United States
Attorney. If the United States Attorney requests an investigation and
does not receive a timely preliminary report, he may wish to consider
requesting the assistance of the Criminal Division. In certain matters
the United States Attorney may wish to request the formation of a team
of agents representing the agencies having investigative jurisdiction of
the suspected violations.
The grand jury may be used by the United States Attorney to
investigate alleged or suspected violations of federal law. Unless
circumstances dictate otherwise, a grand jury investigation should not
be opened without consultation with the investigative agency or agencies
having investigative jurisdiction of the alleged or suspected offense.
[cited in
USAM 9-2.001]
9-2.020
Declining Prosecution
The United States Attorney is authorized to decline prosecution
in any case referred directly to him/her by an agency unless a statute
provides otherwise. See USAM
9-2.111. Whenever a case is closed without prosecution, the United
States Attorney's files should reflect the action taken and the reason
for it.
[cited in
USAM 9-2.001]
9-2.021
Armed Forces Enlistment as an Alternative to Federal Prosecution
Present regulations of the Armed Services prohibit the
enlistment of an individual against whom criminal or juvenile charges
are pending or against whom the charges have been dismissed to
facilitate the individual's enlistment. This policy is based, in part,
on the premise that the individual who enlists under such conditions is
not properly motivated to become an effective member of the Armed
Forces.
Determination as to whether prosecution should be instituted or
pending criminal charges dismissed in any case should be made on the
basis of whether the public interest would thereby best be served and
without reference to possible military service on the part of the
subject. The Armed Forces are not to be regarded as correctional
institutions and United States Attorneys are urged to give full
cooperation to the Department of Defense in the latter's efforts to
ensure a highly motivated all-volunteer Armed Forces and to bolster
public confidence in military service as a respectable and honorable
profession.
There may be exceptional cases in which imminent military
service, together with other factors, may be considered in deciding to
decline prosecution if the offense is trivial or insubstantial, the
offender is generally of good character, has no record or habits of
anti-social behavior, and does not require rehabilitation through
existing criminal institutional methods, and failure to prosecute will
not seriously impair observance of the law in question or respect for
law generally. In no case, however, should the United States Attorney be
a party to, or encourage, an agreement respecting foregoing criminal
prosecution in exchange for enlistment in the Armed Services.
9-2.022
Pretrial Diversion as an Alternative to Federal Prosecution
A United States Attorney may consider Pretrial Diversion as an
alternative to federal criminal prosecution. Pretrial Diversion is
addressed in USAM 9-22.000.
9-2.030
Authorizing Prosecution
The United States Attorney is authorized to initiate prosecution
by filing a complaint, requesting an indictment from the grand jury, and
when permitted by law, by filing an information in any case which, in
his or her judgment, warrants such action, other than those instances
enumerated in USAM 9-2.120.
In arriving at a decision, the United States Attorney should
consider the recommendations for prosecution of the specific offense set
forth in the chapters discussing substantive offenses. The
recommendations are instructive only and not mandatory.
[cited in
USAM 9-2.001;
Criminal Resource Manual 1841]
9-2.031
Dual and Successive Prosecution Policy ("Petite Policy")
- Statement of Policy:
This policy 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. See Rinaldi
v. United States, 434 U.S. 22, 27, (1977); Petite v. United
States, 361 U.S. 529 (1960). Although there is no general statutory
bar to a federal prosecution where the defendant's conduct already has
formed the basis for a state prosecution, Congress expressly has
provided that, as to certain offenses, a state judgment of conviction or
acquittal on the merits shall be a bar to any subsequent federal
prosecution for the same act or acts. See 18 U.S.C. §§
659, 660, 1992, 2101, 2117; see also 15 U.S.C. §§ 80a-36,
1282.
- The purpose of this policy is to vindicate substantial federal
interests through appropriate federal prosecutions, to protect persons
charged with criminal conduct from the burdens associated with multiple
prosecutions and punishments for substantially the same act(s) or
transaction(s), to promote efficient utilization of Department
resources, and to promote coordination and cooperation between federal
and state prosecutors.
- This policy precludes the initiation or continuation of a
federal prosecution, following a prior state or federal prosecution
based on substantially the same act(s) or transaction(s) unless three
substantive prerequisites are satisfied: first, the matter must involve
a substantial federal interest; second, the prior prosecution must have
left that interest demonstrably unvindicated; and third, applying the
same test that is applicable to all federal prosecutions, the government
must believe that the defendant's conduct constitutes a federal offense,
and that the admissible evidence probably will be sufficient to obtain
and sustain a conviction by an unbiased trier of fact. In addition,
there is a procedural prerequisite to be satisfied, that is, the
prosecution must be approved by the appropriate Assistant Attorney
General.
- Satisfaction of the three substantive prerequisites does not
mean that a proposed prosecution must be approved or brought. The
traditional elements of federal prosecutorial discretion continue to
apply. See Principles of Federal Prosecution, USAM 9-27.110.
- In order to insure the most efficient use of law enforcement
resources, whenever a matter involves overlapping federal and state
jurisdiction, federal prosecutors should, as soon as possible, consult
with their state counterparts to determine the most appropriate single
forum in which to proceed to satisfy the substantial federal and state
interests involved, and, if possible, to resolve all criminal liability
for the acts in question.
- Types of Prosecution to which This Policy Applies:
This
policy applies only to charging decisions; it does not apply to
pre-charge investigations. Yet, where a prior prosecution has been
brought based on substantially the same act(s) or transaction(s), a
subsequent federal investigation should, generally speaking, initially
focus on evidence relevant to determining whether a subsequent federal
prosecution would be warranted in light of the three substantive
prerequisites previously listed.
- Keeping in mind the distinction between charging decisions and
precharge investigations, this policy applies whenever the contemplated
federal prosecution is based on substantially the same act(s) or
transaction(s) involved in a prior state or federal prosecution.
- This policy constitutes an exercise of the Department's
prosecutorial discretion, and applies even where a prior state
prosecution would not legally bar a subsequent federal prosecution under
the Double Jeopardy Clause because of the doctrine of dual sovereignty
(see Abbate v. United States, 359 U.S. 187 (1959)), or a
prior prosecution would not legally bar a subsequent state or federal
prosecution under the Double Jeopardy Clause because each offense
requires proof of an element not contained in the other. See
United States v. Dixon, 509 U.S. 688 (1993); Blockburger v.
United States, 284 U.S. 299 (1932).
- This policy does not apply, and thus prior approval is not
required, where the prior prosecution involved only a minor part of the
contemplated federal charges. For example, a federal conspiracy or RICO
prosecution may allege overt acts or predicate offenses previously
prosecuted as long as those acts or offenses do not represent
substantially the whole of the contemplated federal charge, and, in a
RICO prosecution, as long as there are a sufficient number of predicate
offenses to sustain the RICO charge if the previously prosecuted
offenses were excluded.
- This policy does not apply, and thus prior approval is not
required, where the contemplated federal prosecution could not have been
brought in the initial federal prosecution because of, for example,
venue restrictions, or joinder or proof problems.
- Please note that when there is no need for prior approval
because this policy does not apply, all other approval requirements
remain in force. One example of another approval requirement is the one
requiring Criminal Division approval of all RICO indictments.
- Stages of Prosecution at which Policy Applies:
This policy
applies whenever there has been a prior state or federal prosecution
resulting in an acquittal, a conviction, including one resulting from a
plea agreement, or a dismissal or other termination of the case on the
merits after jeopardy has attached.
- Once a prior prosecution reaches one of the above-listed stages
this policy applies, and approval is required before a federal
prosecution can be initiated or continued, even if an indictment or
information already has been filed in the federal prosecution.
- An exception occurs, and this policy does not apply, if the
federal trial has commenced and the prior prosecution subsequently
reaches one of the above-listed stages. When, however, a federal trial
results in a mistrial, dismissal, or reversal on appeal, and, in the
interim, a prior prosecution has reached one of the above listed stages.
When, however, a federal trial results in a mistrial, dismissal, or
reversal on appeal, and, in the interim, a prior prosecution has reached
one of the above listed stages, this policy applies.
- Substantive Prerequisites for Approval of a Prosecution Governed
by this Policy.
As previously stated there are three substantive
prerequisites that must be met before approval will be granted for the
initiation or a continuation of a prosecution governed by this policy.
- The first substantive prerequisite is that the matter must involve a
substantial federal interest. This determination will be made on a
case-by-case basis, applying the considerations applicable to all
federal prosecutions. See Principles of Federal
Prosecution, USAM 9-27.230.
Matters that come within the national investigative or prosecutorial
priorities established by the Department are more likely than others to
satisfy this requirement.
- The second substantive prerequisite is that the prior prosecution
must have left that substantial federal interest demonstrably
unvindicated. In general, the Department will presume that a prior
prosecution, regardless of result, has vindicated the relevant federal
interest. That presumption, however, may be overcome when there are
factors suggesting an unvindicated federal interest.
- The presumption may be overcome when a conviction was not achieved
because of the following sorts of factors: first, incompetence,
corruption, intimidation, or undue influence; second, court or jury
nullification in clear disregard of the evidence or the law; third, the
unavailability of significant evidence, either because it was not timely
discovered or known by the prosecution, or because it was kept from the
trier of fact's consideration because of an erroneous interpretation of
the law; fourth, the failure in a prior state prosecution to prove an
element of a state offense that is not an element of the contemplated
federal offense; and fifth, the exclusion of charges in a prior federal
prosecution out of concern for fairness to other defendants, or for
significant resource considerations that favored separate federal
prosecutions.
- The presumption may be overcome even when a conviction was achieved
in the prior prosecution in the following circumstances: first, if the
prior sentence was manifestly inadequate in light of the federal
interest involved and a substantially enhanced sentenceincluding
forfeiture and restitution as well as imprisonment and finesis
available through the contemplated federal prosecution, or second, if
the choice of charges, or the determination of guilt, or the severity of
sentence in the prior prosecution was affected by the sorts of factors
listed in the previous paragraph. An example might be a case in which
the charges in the initial prosecution trivialized the seriousness of
the contemplated federal offense, for example, a state prosecution for
assault and battery in a case involving the murder of a federal
official.
- The presumption also may be overcome, irrespective of the result in
a prior state prosecution, in those rare cases where the following three
conditions are met: first, the alleged violation involves a compelling
federal interest, particularly one implicating an enduring national
priority; second, the alleged violation involves egregious conduct,
including that which threatens or causes loss of life, severe economic
or physical harm, or the impairment of the functioning of an agency of
the federal government or the due administration of justice; and third,
the result in the prior prosecution was manifestly inadequate in light
of the federal interest involved.
- The third substantive prerequisite is that the government must
believe that the defendant's conduct constitutes a federal offense, and
that the admissible evidence probably will be sufficient to obtain and
sustain a conviction by an unbiased trier of fact. This is the same test
applied to all federal prosecutions. See Principles of Federal
Prosecution, USAM 9-27.200 et
seq. This requirement turns on the evaluation of the admissible
evidence that will be available at the time of trial. The possibility
that, despite the law and the facts, the fact-finder may acquit the
defendant because of the unpopularity of some factor involved in the
prosecution, or because of the overwhelming popularity of the defendant,
or his or her cause, is not a factor that should preclude a proposed
prosecution. Also, when in the case of a prior conviction the
unvindicated federal interest in the matter arises because of the
availability of a substantially enhanced sentence, the government must
believe that the admissible evidence meets the legal requirements for
such sentence.
- Procedural prerequisite for Bringing a Prosecution Governed by
This Policy.
Whenever a substantial question arises as to whether
this policy applies to a prosecution, the matter should be submitted to
the appropriate Assistant Attorney General for resolution. Prior
approval from the appropriate Assistant Attorney General must be
obtained before bringing a prosecution governed by this policy.
See the form at
Criminal Resource Manual 162. The
United States will move to dismiss any prosecution governed by this
policy in which prior approval was not obtained, unless the Assistant
Attorney General retroactively approves it on the following grounds:
first, that there unusual or overriding circumstances justifying
retroactive approval, and second, that the prosecution would have been
approved had approval been sought in a timely fashion. Appropriate
administrative action may be initiated against prosecutors who violate
this policy.
- Reservation and Superseding Effect: for Internal Guidance Only,
No Substantive or Procedural Rights Created.
This policy has been
promulgated solely for the purpose of internal Department of Justice
guidance. It is not intended to, does not, and may not be relied upon to
create any rights, substantive or procedural, that are enforceable at
law by any party in any matter, civil or criminal, nor does it place any
limitations on otherwise lawful litigative prerogatives of the
Department of Justice.
- All of the federal circuit courts that have considered the question
have held that a criminal defendant can not invoke the Department's
policy as a bar to federal prosecution. See, e.g., United
States v. Snell, 592 F.2d 1083 (9th Cir. 1979); United States v.
Howard, 590 F.2d 564 (4th Cir. 1979); United States v.
Frederick, 583 F.2d 273 (6th Cir. 1978); United States v.
Thompson, 579 F.2d 1184 (10th Cir. 1978) (en banc); United States
v. Wallace, 578 F.2d 735 (5th Cir. 1978); United States v.
Nelligan, 573 F.2d 251 (5th Cir. 1978); United States v.
Hutul, 416 F.2d 607 (7th Cir. 1969). The Supreme Court, in analogous
contexts, has concluded that Department policies governing its internal
operations do not create rights which may be enforced by defendants
against the Department. See United States v. Caceres, 440
U.S. 471 (1979); Sullivan v. United States, 348 U.S. 170 (1954).
- This policy statement supersedes all prior Department guidelines and
policy statements on the subject.
[cited in
USAM 5-11.113;
USAM 9-2.112;
USAM 9-27.230;
Criminal Resource Manual 670;
682;
2079]
| 9-2.032
Notification to the Criminal Division of Certain Prosecutions of Attorneys
- In either of the following two circumstances, the United States Attorney
or Departmental Component Head shall notify the Assistant Attorney General,
Criminal Division, whenever his/her office intends to file a complaint,
information, or indictment against an attorney:
- When the charges are based, in whole or in part, on evidence that the
attorney served as counsel for an ongoing criminal enterprise or
organization; or
- When
(i) the charges are based, in whole or in part, on actions or omissions by
the attorney during the representation of a current or former client; and
(ii) the attorney's current or former client is, or is likely to be, a
witness against the attorney; and
(iii) the client will, or is likely to, testify against the attorney
pursuant to a nonprose-cution, cooperation, or similar agreement with the
government.
- Except in emergency situations, the United States Attorney or
Departmental Component Head shall provide such notice sufficiently in
advance of the filing of a complaint, information, or indictment to provide
the Assistant Attorney General, Criminal Division, a reasonable time to
consult with the prosecuting office/component. In addition, the United
States Attorney or Departmental component head should consider providing
notice during an investigation involving the circumstances described above
in A.1 or A.2, if the existence of such investigation is about to be, or has
been, made public.
- The requirements set forth in this section shall not apply to
indictments that are subject to pre-indictment review by a Department
component under other provisions of the United States Attorneys' Manual,
e.g., RICO, tax, etc., cases.
See also the Criminal Resource Manual at 86.
[updated March 2008]
9-2.040
Dismissal of Complaints
The United States Attorney may dismiss a criminal complaint without
prior authorization from the Criminal Division except in the instances
enumerated in USAM 9-2.145. However,
Rule 48(a), Fed. R. Crim. P., requires leave of court for dismissal of a
complaint, as discussed infra. See also USAM 9-27.000 (Principles of Federal
Prosecution).
If the person charged in a complaint has been bound over for grand
jury action, the complaint may be dismissed by the United States
Attorney only by leave of court. A court may confer on the United States
attorney a blanket authorization to dismiss complaints. If such
authorization has not been given, leave of court to dismiss the
complaint must be obtained in each particular case.
Whether leave of court is required to dismiss a complaint prior to
the defendant being bound over for grand jury action has not been
judicially settled. The United States Attorney must be governed by the
interpretation of Fed. R. Crim. P. 48(a) given by the court in his
district. The view that leave of court is not required to dismiss a
complaint prior to the person charged being bound over is supported by
the control over complaints given to judicial officers in Rules 4 and 5,
Fed. R. Crim. P. Under those rules, a judicial officer may issue a
warrant, may discharge a defendant, and may cancel an unexecuted warrant
of arrest. It would seem, therefore, that the judicial officer can
exercise a like control over a complaint prior to his decision to bind
over the defendant and that leave of the court is not required.
9-2.041
Cancellation of Unexecuted Arrest Warrants
Care should be taken that the Marshal of the district is promptly
informed by the United States Attorney of the dismissal of a complaint,
whether by the court or a judicial officer, in order to facilitate
cancellations of unexecuted arrest warrants as provided in Fed. R. Crim.
P. 4(d)(4). Such notification is also important when a warrant of arrest
is outstanding in connection with a detainer lodged against a defendant
who is confined in another district. Since the warrant will have been
forwarded by the Marshal of the district where it was issued to the
Marshal in the district of detention, the warrant will have to be
returned to the Marshal of the issuing district for cancellation by the
judicial officer after the complaint has been dismissed.
9-2.050
Dismissal of Indictments and Informations
The United States Attorney may move for leave of court to dismiss an
indictment or information, in whole or part, without prior authorization
from the Criminal Division except in the instances enumerated in USAM 9-2.145. The United States Attorney
may in any case request the views of the Criminal Division as to the
dismissal of any indictment or information. Prior to dismissing an
indictment the United States Attorney should consult with the referring
department or agency, and also seek to obtain the views of the
investigative agency involved in the matter.
Whenever the United States Attorney concludes that a dismissal is
warranted, he should take prompt action to dismiss. However, an
indictment should not be dismissed merely because the defendant is a
fugitive.
Rule 48(a), Fed. R. Crim. P., requires leave of court for dismissal
of an indictment or information by the United States Attorney. A
dismissal by the United States Attorney may not be filed during the
trial without the consent of the defendant. See Fed. R. Crim. P.
48(a). The court may decline leave to dismiss if the manifest public
interest requires it. See Rinaldi v. United States, 434
U.S. 22 (1977); United States v. Gonzalez, 58 F.3d 459 (9th
Cir.1995); United States v. Welborn, 849 F.2d 980 (5th Cir.1988);
United States v. Hamm, 659 F.2d 624 (5th Cir.1981)(and cases
therein).
In moving for leave to dismiss, the local practice should be
followed. However, in cases of considerable public interest or
importance where dismissal of the entire indictment or information is
sought because of an inability to establish a prima facie
case, a written motion for leave to dismiss should be filed explaining
fully the reason for the request. The importance of the case is not to
be measured simply by the punishment prescribed for the offense. If the
case involves fraud against the government, bribery, or a similarly
important matter, or if any other department or branch of the government
is specially interested, it is recommended that the written form of
motion be used.
Often it is desirable to dismiss actions against defendants
committed to federal custody for psychiatric examination to determine
competency to stand trial pursuant to 18 U.S.C. § 4241(d) and 18
U.S.C. § 4247(b), and against defendants found incompetent to stand
trial until their competency is restored. The Bureau of Prisons and the
appropriate Medical Center for Federal Prisoners should be given notice
well in advance of such dismissals and the provisions of Chapter 313 of
Title 18 complied with. In cases involving dismissals of prosecution
under 18 U.S.C. § 871, the Secret Service should be notified. In
every case of a dismissal, the file should reflect the reasons for the
dismissal. See also Principles of Federal Prosecution, USAM 9-27.000.
[cited in
USAM 9-2.001]
9-2.060
Appeals, Mandamus, Stays, Rehearing, Certiorari
The authority of the United States Attorney with relation to appeals
is set forth in USAM 9-2.170. See
also USAM Title 2.
9-2.100
Limitations on United States Attorneys
Limitations on actions of the United States Attorney in criminal
matters assigned to the Criminal Division are imposed by statutes and by
policies of the Department. The statutory limitations are listed in USAM 9-2.111 and 9-2.112. The policy limitations are listed
in USAM 9-2.120.
9-2.101
American Bar Association Standards for Criminal Justice
The American Bar Association Standards for Criminal Justice have not
been adopted as official policy by the Department; however, since the
courts utilize the Standards in determining issues covered by them, it
is recommended that all United States Attorneys familiarize themselves
with them. The ABA Standards for Criminal Justice, Table of Standards,
Second Edition can be found in the Advance Sheets of the Federal
Reporter, Third Series.
9-2.110
Statutory LimitationsGenerally
Certain statutes impose limitations on the authority of the United
States Attorney to decline prosecution, to prosecute, and to take
certain actions relating to the prosecution of criminal cases.
[cited in
USAM 9-4.010]
9-2.111
Statutory LimitationsDeclinations
If a judge, receiver, or trustee in a case under Title 11, United
States Code, has reported to the United States Attorney that he/she
believes a violation of Chapter 9, Title 11, United States Code, or
other laws of the United States relating to insolvent debtors,
receiverships, or reorganization plans has been committed, or that an
investigation should be had in connection therewith, 18 U.S.C. §
3057(a), the United States Attorney, if he/she decides upon inquiry and
examination that the ends of public justice do not require investigation
or prosecution, must report the facts to the Attorney General for
his/her direction, 18 U.S.C. § 3057(b). The report of the United
States Attorney should be sent to the Criminal Division, Fraud Section.
See USAM 9-41.010 (Bankruptcy
Fraud).
Only the Assistant Attorney General, Criminal Division, the Deputy
Attorney General, or the Attorney General can authorize a declination of
a prosecution for national security reasons. Classified Information
Procedures Act, 18 U.S.C. App. (Supp. V 1981). Accordingly, the Internal
Security Section, Criminal Division, is to be consulted in any case in
which there is a possibility that prosecution may be declined for
national security reasons. See USAM
9-90.020 (National Security Matters: Prior Approval, Consultation,
and Notification Requirements).
United States Attorneys may not decline to prosecute violations of
50 U.S.C. App. 462(a) involving the failure to register with the
Selective Service System without prior notification to the Criminal
Division (Office of Enforcement Operations). Such notification is
necessitated by the requirement of 50 U.S.C. App. § 462(c) that the
Department "advise the [Congress] in writing the reasons for its
failure" to bring such prosecutions. See USAM 9-79.400 (Failure to Register with
the Selective Service System).
[cited in
USAM 9-2.020;
USAM 9-2.100]
9-2.112
Statutory LimitationsProsecutions
No prosecution of an offense described in 18 U.S.C. § 245
(Federally Protected Activities) may be undertaken by the United States
except upon the certification of the Attorney General or Deputy Attorney
General that in his or her judgment a prosecution by the United States
is in the public interest and necessary to secure substantial justice.
See USAM 9-85.200. The function
of certification may not be delegated. See 18 U.S.C. §
245(a)(1). The anti-riot provision, 18 U.S.C. § 245(b)(3), and
violations of 18 U.S.C. § 245(b)(1), insofar as it relates to
matters not involving discrimination or intimidation on grounds of race,
color, religion, or national origin, are assigned to the Criminal
Division and requests for certification relating to them should be sent
to the Criminal Division. Formerly, prosecutions under 42 U.S.C.
§§ 2272-2276 (Atomic Energy Act) might be brought only after
receiving the express direction of the Attorney General. See 42
U.S.C. § 2271(c).
Violations of 18 U.S.C. § 1073 (Flight to Avoid Prosecution or
Giving Testimony) may be prosecuted only upon formal approval in writing
by the Attorney General, the Deputy Attorney General, the Associate
Attorney General, or an Assistant Attorney General. Accordingly, under
no circumstances should an indictment under the Act be sought, nor an
information be filed, nor should criminal proceedings under Rule 40,
Federal Rules of Criminal Procedure be instituted without the written
approval of the Assistant Attorney General, Criminal Division. Requests
for written approval to prosecute should be forwarded to the Terrorism
and Violent Crime Section. See USAM
9-69.460. This approval requirement also applies to cases involving
custody disputes. See USAM
9-69.421.
Prosecution for violations of 18 U.S.C. § 659 (Theft from
Interstate Shipments) and of 18 U.S.C. § 2102 (Riots) are barred if
there has been a judgment of conviction or acquittal on the merits under
the law of any State for the same act or acts. See 18 U.S.C.
§§ 659, 2101(c). That a Federal prosecution for violation of 18
U.S.C. § 659 was initiated prior to the commencement of the State
prosecution did not prevent dismissal of the Federal indictment when a
State trial on a larceny charge resulted in acquittal before a defendant
was retried on the Federal indictment following a remand from the Court
of Appeals. See United States v. Evans, (D.N.J. November
19, 1968) (DJ 15-48-368). The Solicitor General decided no appeal should
be taken not because of 18 U.S.C. § 659 but because of the policy
against dual prosecution. See USAM
9-2.031 (Petite Policy).
[cited in
USAM 9-2.100]
9-2.120
Policy LimitationsGenerally
Department of Justice and Criminal Division policies impose
limitations on the authority of the United States Attorney to decline
prosecution, to prosecute, and to take certain actions relating to the
prosecution of criminal cases. These policy limitations are discussed
throughout the United States Attorneys' Manual, with a centralized
listing contained in 9-2.400.
With regard to policy limitations, if in the opinion of the United
States Attorney the exigencies of the situation prevent compliance with
a policy, he/she shall take the action deemed appropriate. He/she shall
promptly report to the Criminal Division the deviation from policy, or
if the policy is established by a higher authority, report to that
authority and be guided by the instructions furnished him/her. A written
report of the deviation should be promptly made. Approval of the action
of the United States Attorney or his/her taking action as instructed
shall be deemed, for all purposes, to be compliance with the policy.
Among the purposes of this language is to ensure that criminals do not
escape prosecution by inaction on the part of a United States Attorney
immobilized by policy; to require a report of deviation from policy in
order that the policy may be evaluated; and to express confidence in the
judgment, and to reaffirm the authority, of the United States Attorney
in such a situation.
If the United States Attorney discovers that a policy of the
Division or of a higher authority has not been followed because of
inadvertence, he/she shall promptly notify the Division or higher
authority of the deviation from policy by the most expeditious means and
subsequently in writing. He/she shall be guided by the instructions
furnished him/her. Approval of the action of the United States Attorney,
or his/her taking action as instructed shall be deemed, for all
purposes, to be compliance with the policy.
In the instances when the United States Attorney is directed to
consult with the Division prior to taking an action, such consultation
will typically be by an Assistant United States Attorney with an
attorney of the section assigned responsibility for the statute or
matter involved. See USAM
9-4.000. If there is a disagreement at this level, the matter should
be resolved by appropriate higher authority before the disputed action
is taken.
[updated January 1999]
[cited in
USAM 9-2.030;
USAM 9-2.100;
USAM 9-4.010]
9-2.131
Matters Assumed by Criminal Division or Higher Authority
If primary prosecutorial responsibility for a matter has been
assumed by the Criminal Division or higher authority, the United States
Attorney shall consult with the persons having primary responsibility
before conducting grand jury proceedings, seeking indictment, or filing
an information.
9-2.136
Notification, Consultation, and Approval Requirements for
International Terrorism Matters
- The Need for a Consistent and Coordinated National Enforcement
Strategy for International Terrorism Matters.
- Faced with the growing threat of international terrorism and in
order to implement this nation's obligations under various
international conventions designed to prevent and punish acts of
terrorism, Congress has enacted significant legislation to expand
the jurisdiction of the United States to investigate and
prosecute terrorist activities occurring within and outside the
territorial jurisdiction of the United States. Following the
terrorist attacks of September 11, 2001, the Attorney General
implemented various initiatives to ensure an aggressive,
consistent, and coordinated national enforcement program to
prevent, disrupt, and punish international terrorism. The
Department and the Congress also emphasized the need for robust
sharing of information related to terrorism between and among
Department components and other Executive Branch agencies,
including the need for relevant information collected at
headquarters components to flow to the field as well as
information flowing from the field to headquarters. In view of
the expanded Federal criminal jurisdiction over and importance of
international terrorism matters and the obvious need to ensure a
well-coordinated Federal response to such matters, the following
policy is established in regard to international terrorism,
including terrorist acts planned or committed outside the
territorial jurisdiction of the United States over which Federal
criminal jurisdiction exists and those within the United States
involving international terrorists and terrorist groups. The
coordination is conducted by the National Security Division (NSD)
and, in particular, by its Counterterrorism Section (CTS).
- What Constitutes an "International Terrorism" Investigation.
- The requirements in this section apply to all
investigations involving an identified link to international
terrorism. If the United States Attorney's Office (USAO) or
the referring agency has opened the investigation as an
international terrorism matter (such as an FBI 315 file), or if
the matter is being investigated as an international terrorism
matter by a Joint Terrorism Task Force, the matter will
presumptively qualify as an international terrorism
investigation. In addition, other investigations in which links
to international terrorism are identified after the investigation
is initiated will qualify at that point as international
terrorism matters for purposes of this section, regardless of the
statutory violation initially presented or ultimately charged and
regardless of the referring agency. If there is any question
about whether a matter involves international terrorism, all
doubt should be resolved in favor of consultation with CTS.
- The notification, consultation, and information-sharing
provisions of this section apply in all international terrorism
matters. The approval requirements depend on whether the Federal
statute to be utilized in certain court actions is listed in Category 1
below, in which case approval is presumptively required, or Category 2, in
which case approval is presumptively not required.
- International Terrorism Statutes (Category 1)
- The Federal statutes listed in this subsection represent the intent of
Congress to expand the jurisdiction of the United States to investigate and
prosecute international terrorism or are utilized regularly in international
terrorism matters. If a Category 1 statute is being used in a terrorism
investigation that is not entirely domestic i.e., a
terrorism investigation that involves foreign nationals, foreign locations,
or connections to foreign countries or groups the matter shall be
deemed an international terrorism matter. This includes use of a listed
statute as the object of a conspiracy or as a predicate for a RICO or other
offense.
- Terrorist Acts Abroad Against United States Nationals (18
U.S.C. § 2332)
- Terrorism Transcending National Boundaries (18 U.S.C. §
2332b)
- Hostage Taking (18 U.S.C. § 1203)
- Aircraft Piracy (49 U.S.C. § 46502)
- Aircraft Sabotage (18 U.S.C. § 32)
- Conspiracy Within the United States to Murder, Kidnap, or
Maim Persons or to Damage Certain Property Overseas (18
U.S.C. § 956)
- Providing Material Support to Terrorists (18 U.S.C. §
2339A)
- Providing Material Support to Designated Terrorist
Organizations (18 U.S.C. § 2339B)
- Prohibition Against Financing of Terrorism (18 U.S.C. §
2339C)
- Violations of IEEPA (50 U.S.C. § 1705(b))
involving E.O. 12947 (Terrorists Who
Threaten to Disrupt the Middle East Peace Process); E.O.
13224 (Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten
to Commit, or Support
Terrorism or Global Terrorism List); and E.O. 13129
(Blocking Property and Prohibiting
Transactions With the Taliban)
- Harboring Terrorists (18 U.S.C. § 2339)
- Terrorist Attacks Against Mass Transportation Systems (18
U.S.C. § 1993)
- Use of Biological, Nuclear, Chemical or Other Weapons of
Mass Destruction
(18 U.S.C. §§ 175, 175b, 229, 831, 2332a)
- Sabotage of Nuclear Facilities or Fuel (42 U.S.C. §
2284)
- Crimes Against Internationally Protected Persons (18 U.S.C.
§ § 112, 878, 1116, l201(a)(4))
- Bombings of places of public use, Government facilities,
public transportation systems and infrastructure facilities
(18 U.S.C. § 2332f)
- Production, Transfer, or Possession of Variola Virus
(Smallpox) (18 U.S.C. § 175c)
- Participation in Nuclear and WMD Threats to the United
States (18 U.S.C. § 832)
- Missile Systems designed to Destroy Aircraft (18 U.S.C.
§ 2332g)
- Production, Transfer, or Possession of Radiological
Dispersal Devices
(18 U.S.C. § 2332h)
- Receiving Military-Type Training from an FTO (18 U.S.C.
§ 2339D)
- Narco-Terrorism (21 U.S.C. § 1010A)
- Animal Enterprise Terrorism (18 U.S.C. § 43)
- Other International Terrorism Matters
(Category 2)
- A variety of other Federal statutes may also be used to
prevent, disrupt, and punish international terrorists. These
include the statutes listed below as well as many other Federal
offenses including, but not limited to, fraud offenses,
immigration offenses, firearms charges, drug crimes, and false
statement, perjury, and obstruction of justice offenses. While
these statutes may be used in a variety of contexts, some not
involving terrorism at all and others involving only domestic
terrorism, if the investigation in which the statute is used
involves an identified link to international terrorism,
including but not limited to any link or reference to a
designated Foreign Terrorist Organization (FTO), it is
encompassed by the policy set forth in this section.
- Arsons and Bombings (18 U.S.C. §§ 842(m), 842(n),
844(f), 844(i))
- Unlicensed Money Remitter Charges (18 U.S.C. § 1960)
- Protection of Computers (18 U.S.C. § 1030)
- False Statements (18 U.S.C. § 1001)
- Violence at International Airports (18 U.S.C. § 37)
- Killings in the Course of Attack on a Federal Facility (18
U.S.C. § 930(c))
- Crimes in the Special Aircraft Jurisdiction other than
Aircraft Piracy (49 U.S.C. §§ 46503-46507)
- Crimes Committed Within the Special Maritime and Territorial
Jurisdiction of the United States (l8 U.S.C. §§ 7, 113, 114, 115,
1111, 1112,
1201, 2111)
- Wrecking Trains (18 U.S.C. § 1992)
- Destruction of Interstate Gas or Hazardous Liquid Pipeline
Facilities (49 U.S.C. § 60123(b))
- Destruction of Communication Lines (18 U.S.C. §
1362)
- Destruction of National Defense Materials, Premises, or
Utilities (18 U.S.C. § 2155)
- Sea Piracy (18 U.S.C. § 1651)
- Violence against Maritime Navigation and Maritime Fixed
Platforms (18 U.S.C. §§ 2280, 2281)
- International Traffic in Arms Regulations (22 U.S.C. §
2778, and the rules and regulations promulgated thereunder,
22 C.F.R. § 121-130)
- Genocide (18 U.S.C. § 1091)
- Torture (18 U.S.C. § 2340A)
- War Crimes (18 U.S.C. § 2441)
- False Information and Hoaxes (18 U.S.C. § 1038)
- Channels for Communications Between the USAO and
the National Security Division.
- Communications regarding the notification, consultation,
information-sharing, and approval requirements of this section should
normally be made between the Anti-Terrorism Advisory Council (ATAC)
Coordinator or other designated Assistant United States Attorneys (AUSAs) in
the USAO and the Regional ATAC Coordinator or designated Trial Attorney in
the Counterterrorism Section (CTS). If necessary, including if the usual
contact is unavailable, communications may also be directed from the
National Security Division to supervisory AUSAs or to the United States
Attorney, and from the USAO to the CTS National ATAC Coordinator, a CTS
supervisor, or the CTS Chief or the AAG or his/her staff. Communications
need only be made through a single channel; multiple communications on the
same matter are not required. If a substantive offense being discussed is
within the area of responsibility of another section of the National
Security Division (e.g., Arms Export Control Act-Counterespionage
Section) or the Criminal Division (e.g., TortureDomestic
Security Section), CTS will be responsible for coordinating the matter with
that section.
- The main CTS telephone number is (202) 514-0849. After business hours,
all CTS attorneys and the CTS duty officer may be reached by calling the
Justice Command Center at (202) 514- 5000.
- USAO Notification of CTS is Required
Regarding Initiation of and Significant
Developments in All International Terrorism
Matters.
- Initiation. The USAO shall notify CTS when any
international terrorism matter is opened. The notification should
include the names and identifiers, if known, of subjects of the
investigation and a general overview of the investigation, so
that CTS may attempt to identify linkages to, and deconflict the
investigation with, investigations that may be ongoing in other
districts or within CTS and may raise any concerns about the
proposed investigation. To allow this process, notification
should be made in advance where practicable and otherwise as soon
as possible, but the USAO should not delay in taking necessary
investigative action, particularly where such action is covert.
Notification may be made by email or telephone; or, as necessary
to protect classified and sensitive information, by secure fax or
telephone; and may utilize the standard Case Notification Form
available from CTS if preferred. If after notification, CTS
determines that there are related matters pending in other
districts that could be affected by investigative action in the
new matter, CTS will so inform the USAO and will advise the other
districts of the new matter.
- Significant
Developments. In all international terrorism matters,
the USAO shall notify CTS of significant developments in the
investigation and prosecution, including the filing of search
warrants; the filing of material witness warrants; the
application for electronic surveillance; the declination of the
matter without filing of charges; the filing and dismissal of
criminal or immigration charges; the entering of plea agreements;
the initiation and results of trials; and the results of
sentencings and appeals. (As discussed in subsection H below, in
certain international terrorism matters, some of these court
actions also require prior approval of the National Security
Division.) CTS will be responsible for reporting to the
Department's leadership on such developments, although the USAO
should also send Urgent Reports on such matters as required by
USAM § 3-18.200.
- USAO Consultation with CTS is Encouraged in
All International Terrorism Investigations and is
Required Before Issuing Grand Jury Subpoenas in
Overlapping Investigations.
- Consultation between USAOs and CTS is encouraged in all
international terrorism matters. Consultation at the inception of
an investigation facilitates consideration of the full range of
investigative tools now available and discussion of investigative
strategy. Consultation on significant investigative and
prosecution developments also facilitates coordination, as
necessary and appropriate, with other Department components and
with other law enforcement, intelligence, defense and other
agencies; such coordination is often done in practice, and
sometimes must be done pursuant to Attorney General guidelines or
by request of the other components and agencies, at the
headquarters level. Consultation promotes careful evaluation of
intelligence, defense, foreign policy and other governmental
interests that often affect investigative tactics and strategies,
charging decisions, discovery (including such issues as
defendants' access to detained enemy combatants), use of
classified information, use of expert witnesses and cooperating
witnesses and defendants from other jurisdictions, jury
instructions, sentencing issues, and similar concerns.
- Grand Jury Subpoenas and Pen/Trap Orders. Where a
USAO is aware that another USAO or CTS has a related
international terrorism matter opened, the USAO shall not issue
grand jury subpoenas or apply for a pen register or trap and
trace order that may impact such related matters without first
consulting with CTS and the other district.
- CTS is Required to Share Relevant Information With
Affected USAOs.
- When CTS becomes aware, through contacts with USAOs, other National
Security Division and Criminal Division Sections and Department components,
including the FBI, other agencies, or otherwise, of information that may be
relevant to an international terrorism matter pending in a USAO, including
relevant investigative action that may be planned in another district and
issues regarding FISA searches or electronic surveillance, CTS shall share
that information directly with the USAO as soon as practicable and to the
extent authorized by the originator of the information. Where relevant
information is known to CTS but cannot be shared with a USAO due to
originator requirements, CTS shall request that the originator authorize
such sharing.
- CTS Intranet Website Will Be Accessible to
USAOs.
- To the extent practical and permitted by classification, need-to-know,
operational security, court sealing, and similar restrictions, CTS should
also share available information about activities in terrorism matters
generally with all USAOs. A large amount of such information, including the
CTS Daily Reports, is available to USAOs through the CTS intranet website.
United States Attorneys, ATACs, and other AUSAs with a need to know may
obtain licenses allowing access to the CTS website by contacting EOUSA.
- Prior Express Approval of the Assistant
Attorney General of the National Security Division
or His Designee is Presumptively Required
Regarding Certain Court Actions in Category 1
Matters, and is Required in Category 2 Matters
Where Requested By the Assistant Attorney
General.
- Prior express approval of the Assistant Attorney General of the
National Security Division (AAG) or his designee is presumptively required
for certain court actions involving the international terrorism-focused
(Category 1) statutes. Prior approval is required in other (Category 2)
international terrorism matters only upon AAG request. Prior approval is
required for the following court actions:
- Filing an application for a search warrant.
- Filing an application for a material witness warrant.
- Filing a criminal complaint or information or seeking the return of an
indictment.
- Filing a superseding complaint or information, or seeking the return of
a superseding indictment.
- Dismissing a charge for which AAG approval was initially required,
including as part of a plea agreement. (See also the discussion of other
plea agreements later in this Section.)
- Other specific court filings as requested by the AAG.
- In other words, if the court document in an international
terrorism matter utilizes a Category 1 statute listed in
subsection B.1. above, the AAG or his designee must approve the
action in advance unless the AAG advises the USAO that he
does not seek to exercise approval authority in the particular
matter or with regard to the particular court filing. For
example, the AAG may determine after reviewing a routine search
warrant in a Category 1 case that he does not need to review any
similar search warrants in that particular case. This approval
requirement applies whether the Category 1 statute is used as a
substantive offense or as the object of a conspiracy or a
predicate offense for a RICO or other violation. The approval
requirement also applies to "hoax" and "threat" cases that
utilize Weapons of Mass Destruction or other Category 1
statutes.
- In the many other international terrorism matters in which court
documents do not utilize one of the Category 1 statutessuch as
cases using one of the more general Category 2 statutes described in
subsection B.2. abovethen prior approval is required only if
the AAG advises the USAO that he wishes to exercise approval authority for
some or all of the court actions in the particular matter. Note that in
cases not requiring AAG approval, the USAO should still notify CTS of these
sorts of court actions as significant developments in the matter, as
discussed in subsection D above.
- If the United States Attorney believes that AAG approval is
not warranted in a case in which the AAG has requested to
exercise approval authority for some or all of the court actions
in the particular matter, the United States Attorney may appeal
to the Deputy Attorney General for a determination of whether
such approval is necessary.
- Indictments, Informations, and Complaints. Where
prior approval is required, the USAO should make the application
for approval through CTS. In such cases, submission to CTS of a
prosecution memorandum and a copy of the proposed indictment,
information, or complaint is normally required prior to seeking
authorization for charges, although CTS may waive this
requirement in a particular case. The final draft of the proposed
charge must be provided to CTS before final AAG approval will be
sought. Attorneys are encouraged to seek informal guidance from
CTS throughout the investigation and well before a final
indictment and prosecution memorandum are submitted for review.
The submitting AUSA must allocate sufficient lead time to permit
review, revision, discussion, and the scheduling of the grand
jury. The information provided should indicate both the proposed
date for the investigatory action and the proposed date by which
the USAO needs a response. If CTS is unable to respond within the
time frame suggested by the USAO, CTS must immediately notify the
USAO to determine an acceptable time frame agreed to by both
parties. A well-written, carefully organized prosecution
memorandum is the greatest guarantee that a prosecution will be
authorized quickly and efficiently.
- Significant Filings. In approval cases, once charges
have been filed in court, a copy of the file-stamped charging
document shall be provided to CTS. CTS shall also be notified
and provided copies of any significant court rulings in the case.
In addition, copies of motions, jury instructions and briefs
filed by the USAO, as well as the defendant(s), should be
forwarded to CTS for retention in a central reference file. The
government's briefs and motions will provide assistance to other
USAOs handling similar matters. Once a verdict has been
obtained, the USAO shall forward to CTS the verdict on each count
of the indictment and the sentence(s) received by each
defendant.
- Plea Agreements. Before entering into a plea
agreement in a case in which court documents utilize one of the
Category 1 statutes (or cases using Category 2 statutes in which
the AAG makes a request), the USAO shall notify and seek the
concurrence of the AAG, with any disagreement to be resolved
by the Deputy Attorney General.
- Exigent Circumstances.
- If exigent circumstances require a USAO to take immediate
action in an international terrorism matter without complying
with the consultation or prior approval requirements set forth
above, the USAO must notify CTS of any action taken as
soon as practicable thereafter and the exigent circumstances that
precluded obtaining prior approval. The USAO shall provide copies
of any court filings made. If the AAG determines that further
review or action appears appropriate, the AAG and the USAO will
confer on how best to proceed. Any disagreements will be resolved
by the Deputy Attorney General.
- Attorney General Certification Under 18 U.S.C. §
2332.
- Pursuant to statute, the written certification of the
Attorney General is required to allege a violation of 18 U.S.C.
§ 2332. This certification represents a finding that the
offense was intended to coerce, intimidate or retaliate against a
government or civilian population. Application for this
certification should be made through CTS, allowing sufficient
lead time for review and transmittal to the Attorney General.
See also the flowchart in the
Criminal Resource Manual at 88.
[updated November 2006]
[cited in
USAM 9-60.700;
USAM 9-63.181;
USAM 9-63.221;
USAM 9-65.811]
9-2.137
Notification Requirements in Domestic Terrorism Matters
Domestic terrorists pose a significant threat to the safety
and well-being of the United States. To a significant degree,
this threat arises in connection with movements and groups whose
existence spans multiple jurisdictions or even the entire nation,
making effective coordination of these matters critical. This
may include matters in which there is a reason to believe that a
subject, target, or defendant may lead, belong to, or otherwise
participate in the activities of an organization that is the
subject of a preliminary or full field FBI Terrorism Enterprise
Investigation (TEI), and other matters within the definition of
"domestic terrorism" (See Title 18, United States Code
§ 2331(5)).
The USAO shall notify CTS, through its CTS Regional
Coordinator, the CTS Domestic Terrorism Coordinator, or the
National Anti-Terrorism Advisory Council (ATAC) Coordinator, of
the initiation and significant developments in domestic terrorism
investigations (i.e., a terrorism investigation that does
not involve foreign nationals, foreign locations, or connections
to foreign countries or groups). Department approval is not
required for the initiation, investigation, or prosecution of
domestic terrorism matters; however, notification to CTS
regarding these cases will allow for general coordination and
deconfliction of such matters, enhance opportunities to recognize
overlap with international terrorism matters, and allow CTS to
track developments in the FBI TEIs that CTS reviews. CTS
attorneys are also available for consultation on such
investigations and prosecutions. This notification requirement
replaces the monthly domestic terrorism reports previously
required to be filed with EOUSA by the USAOs.
When CTS becomes aware, through contacts with USAOs, other
National Security Division and Criminal Division Sections and
Department components including the FBI, other agencies, or
otherwise, of information that may be relevant to a domestic
terrorism matter pending in a USAO, including relevant
investigative action that may be planned in another district, CTS
shall share that information directly with the USAO as soon as
practicable and to the extent authorized by the originator of the
information. Where relevant information is known to CTS but
cannot be shared with a USAO due to originator requirements, CTS
shall request that the originator authorize such sharing.
[new November 2006]
9-2.138
Notification, Consultation, and Approval Requirements for Weapons of
Mass Destruction (WMD) Matters
- Nationwide Enforcement Policy is Required
- Matters involving the Weapons of Mass Destruction (WMD)
statutes (18 U.S.C. §§ 175, l75b, 175c, 229, 831,
832, 2332a, and 2332h), may involve international
terrorism, in which case they are already covered by the
policy set forth in USAM 9-2.136.
Even if the matters do not involve international terrorism, however, the
importance and sensitivity of these matters requires a consistent national
approach as established in the following policy. The policy is coordinated
by the National Security Division. The Counterterrorism Section (CTS) is the
point of contact for these matters.
- During business hours, the main CTS number is (202) 514-0849. After
business hours, CTS attorneys and supervisors may be reached by calling the
Justice Command Center at (202) 514-5000.
- What Constitutes a WMD Matter
- The Department is seeing an increasing number of
investigations involving the use of chemical, biological,
radiological, and nuclear (CBRN) material and agents, as
well as large scale explosive devices intended to cause
catastrophic damage and weapons that seek to combine CBRN
and ordinary explosives. The requirements in this section
apply in all investigations in which the USAO
contemplates charging an offense under the WMD statutes (18
U.S.C. §§ 175, l75b, 175c, 229, 831, 832, 2332a,
and 2332h), regardless of the statutory violation
initially presented or ultimately charged and regardless of
the referring agency.
- Exception for "Routine" WMD-related Hoax and Threat
Matters
- The USAO is not required to follow the approval
requirements of this section if the case is a
"routine" threat or hoax case. A case is not
routine if (1) the USAO intends to charge an offense under
the WMD statutes; (2) the matter affects other districts; or
(3) the matter is expected to attract national public or
media attention. Notification to CTS of routine hoax and
threat matters is still encouraged.
- Notification and Consultation Requirements
Initiation. When the USAO opens any WMD matter,
the USAO shall promptly notify CTS. The notification
should include the names and identifiers, if known, of the
subjects of the investigation and a general overview of the
investigation. Whenever feasible, notification should be
made in advance of any action by the USAO, and otherwise as
soon as possible, but the USAO should not delay in taking
any necessary investigative action, particularly where such
action is covert. Notification may be made by email or
telephone (or by secured means where necessary), and may
utilize the standard Case Notification Form available from
CTS if preferred. If after notification, CTS determines that
there are related matters pending in another district that
could be affected by the new
matter, CTS will so inform the USAO and will advise the
other district of the new matter.
Grand Jury Subpoenas and Pen/Trap Orders. Where a
USAO is aware that another USAO or CTS has opened a related
matter, the USAO shall not issue a grand jury subpoena or
apply for a pen register or trap and trace order that may
affect the related matter without first consulting
with CTS and the other district.
Significant Developments and Case Preparation. The
USAO shall notify CTS of any significant development
in the investigation and prosecution of the matter,
including the filing of a search warrant; the filing of a
material witness warrant; the application for electronic
surveillance; the declination of the matter without filing
of charges; the filing and dismissal of criminal or
immigration charges; the entering of a plea agreement; the
initiation and results of trials; and the results of
sentencings and appeals. (As discussed in subsection E
below, some of these same court actions also require
prior approval of the Assistant Attorney General of
the National Security Division.) The USAO is also
encouraged to consult with CTS on issues such as
investigative tactics and strategies, discovery, jury
instructions, sentencing issues, the use of expert
witnesses, and the use of cooperating witnesses and
cooperating defendants from other jurisdictions.
Information Sharing with the USAO. When CTS becomes
aware of information from any source that may be relevant to
a WMD matter pending in a USAO, including relevant
investigative action that may be planned in another
district, CTS shall share that information with the
USAO as soon as practicable, to the extent authorized by the
originator of the information. Where relevant information
known to CTS cannot be shared with a USAO due to originator
requirements, CTS shall request that the originator
authorize such sharing.
- Approval Requirements
Prior, express approval of the Assistant
Attorney General (AAG) of the National Security Division (or
his or her designee) is required for the following court
actions involving a WMD matter:
- filing an application for a search warrant;
- filing an application for a material witness warrant;
- filing a criminal complaint or information or seeking the return of an
indictment;
- filing a superseding complaint or information, or seeking the return of
a superseding indictment;
- dismissing a charge for which AAG approval was initially required,
including as part of a plea agreement; and
- other specific court filings as requested by the AAG.
- Where prior approval is required, the USAO should make the
application for approval through CTS. Submission to CTS of
a prosecution memorandum and a copy of the proposed
application, indictment, information, or complaint is
normally required prior to seeking AAG approval, although
CTS may waive this requirement in a particular case. The
final draft of any proposed charge must be provided to CTS
before final AAG approval will be given. Attorneys are
encouraged to seek informal guidance from CTS throughout the
investigation and well before a final indictment and
prosecution memorandum are submitted for review. The
submitting AUSA must allocate sufficient lead time to permit
review, revision, discussion, and the scheduling of the
grand jury. The information provided should indicate both
the proposed date for the contemplated action and the
proposed date by which the USAO needs a response. If CTS is
unable to respond within the time frame suggested by the
USAO, CTS must immediately notify the USAO to determine an
acceptable time frame agreed to by both parties. A well-
written, carefully organized prosecution memorandum is the
greatest guarantee that a prosecution will be authorized
quickly and efficiently.
- In cases requiring approval, once a charge has been filed in
court, a copy of a file-stamped charging document shall be
provided to CTS. CTS shall also be notified and provided
copies of any significant court rulings in the case. In
addition, copies of motions, jury instructions and briefs
filed by the USAO, as well as the defendant(s), should be
forwarded to CTS for retention in a central reference file.
Such a file of the government's briefs and motions will
provide assistance to other USAOs handling similar matters.
Once a verdict has been obtained, the USAO shall forward to
CTS the verdict on each count of the indictment and the
sentence(s) received by each defendant.
- AAG Concurrence Requirement for Plea Agreements
- The USAO must seek the prior concurrence of the AAG
before entering into a plea agreement in a WMD matter. If
the AAG does not concur to the entry of the plea agreement,
the disagreement shall be resolved by the Deputy Attorney
General.
- Exigent Circumstances
- If exigent circumstances require a USAO to take immediate
action in a WMD matter without complying with the
notification, consultation, concurrence, or prior approval
requirements set forth above, the USAO must promptly
notify CTS of any action taken and of the exigent
circumstances that precluded obtaining prior approval. The
USAO shall also provide CTS copies of any court filings
made. If the AAG determines that further review or action
appears appropriate, the AAG and the USAO will confer on how
best to proceed. Any disagreements will be resolved by the
Deputy Attorney General.
[updated July 2007]
9-2.139
Notification, Consultation, and Approval Requirements for Torture,
War Crimes, and Genocide Matters
- National Coordination
- Matters involving torture (18 U.S.C. §§ 2340-
2340B), war crimes (18 U.S.C. § 2441), and genocide (18
U.S.C. §§ 1091-1093) raise issues of national and
international concern. Successful prosecution of these
matters requires both careful coordination within the
Department of Justice and careful coordination between the
Department and senior officials in the foreign affairs and
military communities. The responsibility for this
coordination is assigned to the Criminal Division and, in
particular, its Domestic Security Section (DSS). If a
matter involving torture, war crimes, or genocide also
involves international terrorism, responsibility for
coordination will be assigned to the Counterterrorism
Section of the National Security Division as provided in
this section and USAM 9-2.136.
- During business hours, the main DSS number is (202) 616-5731. After
business hours, DSS attorneys and supervisors may be reached by calling the
Justice Command Center at (202) 514-5000.
- Matters Involving Torture, War Crimes, or
Genocide
- The requirements in this section apply in all
investigations in which the USAO contemplates
- charging torture (18 U.S.C. §§ 2340-2340B), a war crime
(18 U.S.C. § 2441), or genocide (18 U.S.C.
§§ 1091-1093); or
- charging any other offense (such as a violation of 18 U.S.C.
§§ 1001, 1425, or 1546) where proof of the other offense
(i.e., of the false statement or fraud) will require the government to
either define torture, war crimes, or genocide, or to prove that torture, a
war crime, or genocide was committed.
- Notification Requirements
Initiation. When the USAO opens any torture, war
crimes, or genocide matter, the USAO shall promptly notify
the Domestic Security Section (DSS) of the Criminal Division.
The notification should include the names and identifiers, if
known, of the subjects of the investigation and a general
overview of the investigation. Whenever feasible, notification
should be made in advance of any action by the USAO, and
otherwise as soon as possible, but the USAO should not delay in
taking any necessary investigative action, particularly where
such action is undercover. Notification may be made by email or
telephone (or by secured means where necessary), and may utilize
the standard Case Notification Form available from DSS if
preferred. If after notification, DSS determines that there are
related matters pending in another district that could be
affected by the new matter, DSS will so inform the USAO and will
advise the other district of the new matter.
- DSS shall immediately notify CTS of all notifications made
by a USAO under this paragraph. If CTS determines that a matter
involves international terrorism, CTS will assume coordination of
the matter pursuant to USAM 9-2.136.
When CTS assumes
coordination of a torture, war crimes, or genocide matter
involving international terrorism, the approval, notification,
and consultation requirements of USAM 9-2.136
apply. For all other cases, the following requirements apply.
- Consultation Requirements
Grand Jury Subpoenas and Pen/Trap Orders. Where a USAO is aware
that another USAO or DSS has opened a related matter, the USAO
shall not issue a grand jury subpoena or apply for a pen register
or trap and trace order that may affect the related matter
without first consulting with DSS and the other
district.
Significant Developments and Case Preparation. The USAO
shall notify DSS of any significant development in the
investigation and prosecution of the matter, including the filing
of a search warrant; the filing of a material witness warrant;
the application for electronic surveillance; the declination of
the matter without filing of charges; the filing and dismissal of
criminal or immigration charges; the entering of a plea
agreement; the initiation and results of trials; and the results
of sentencings and appeals. (As discussed in subsection E below,
some of these same court actions also require prior
approval of the Assistant Attorney General of the Criminal
Division.) The USAO is also encouraged to consult with
DSS on issues such as investigative tactics and strategies,
discovery, jury instructions, sentencing issues, the use of
expert witnesses, and the use of cooperating witnesses and
cooperating defendants from other jurisdictions.
Information Sharing with the USAO. When DSS becomes aware
of information from any source that may be relevant to a torture,
war crimes, or genocide matter pending in a USAO, including
relevant investigative action that may be planned in another
district, DSS shall share that information with the USAO
as soon as practicable, to the extent authorized by the
originator of the information. Where relevant information known
to DSS cannot be shared with a USAO due to originator
requirements, DSS shall request that the originator authorize
such sharing.
- Approval Requirements
- Prior, express approval of the Assistant Attorney
General (AAG) of the Criminal Division (or his or her designee)
is required for the following court actions involving a torture,
war crimes, or genocide matter:
- filing an application for a search warrant;
- filing an application for a material witness warrant;
- filing a criminal complaint or information or seeking the return of an
indictment;
- filing a superseding complaint or information, or seeking the return of
a superseding indictment;
- dismissing a charge for which AAG approval was initially required,
including as part of a plea agreement; and
- other specific court filings as requested by the AAG.
- Where prior approval is required, the USAO should make the
application for approval through DSS. Submission to DSS of a
prosecution memorandum and a copy of the proposed application,
indictment, information, or complaint is normally required prior
to seeking AAG approval, although DSS may waive this requirement
in a particular case. The final draft of any proposed charge
must be provided to DSS before final AAG approval will be given.
Attorneys are encouraged to seek informal guidance from DSS
throughout the investigation and well before a final indictment
and prosecution memorandum are submitted for review. The
submitting AUSA must allocate sufficient lead time to permit
review, revision, discussion, and the scheduling of the grand
jury. The information provided should indicate both the proposed
date for the contemplated action and the proposed date by which
the USAO needs a response. If DSS is unable to respond within
the time frame suggested by the USAO, DSS must immediately notify
the USAO to determine an acceptable time frame agreed to by both
parties. A well-written, carefully organized prosecution
memorandum is the greatest guarantee that a prosecution will be
authorized quickly and efficiently.
- In cases requiring approval, once a charge has been filed in
court, a copy of a file-stamped charging document shall be
provided to DSS. DSS shall also be notified and provided copies
of any significant court rulings in the case. In addition,
copies of motions, jury instructions and briefs filed by the
USAO, as well as the defendant(s), should be forwarded to DSS for
retention in a central reference file. Such a file of the
government's briefs and motions will provide assistance to other
USAOs handling similar matters. Once a verdict has been obtained,
the USAO shall forward to DSS the verdict on each count of the
indictment and the sentence(s) received by each defendant.
- AAG Concurrence Requirement for Plea Agreements
- The USAO must seek the prior concurrence of the AAG before
entering into a plea agreement in a torture, war crimes, or
genocide matter. If the AAG does not concur to the entry of the
plea agreement, the disagreement shall be resolved by the Deputy
Attorney General.
- Exigent Circumstances
- If exigent circumstances require a USAO to take immediate action
in a torture, war crimes, or genocide matter without complying
with the notification, consultation, concurrence, or prior
approval requirements set forth above, the USAO must promptly
notify DSS of any action taken and of the exigent
circumstances that precluded obtaining
prior approval. The USAO shall also provide DSS copies of any
court filings made. If the AAG determines that further review or
action appears appropriate, the AAG and the
USAO will confer on how best to proceed. Any disagreements will
be resolved by the Deputy Attorney General.
[new July 2007]
9-2.145
Dismissals
Criminal Division approval is required before dismissing, in whole
or in part, an indictment, information, or complaint if prior approval
was required before seeking an indictment or filing an information or
complaint.
The above mentioned approval is not a direction but rather an
authorization to dismiss if, in the opinion of the United States
Attorney, this course is advisable. United States Attorneys must satisfy
themselves that the conditions upon which dismissals are authorized have
been complied with.
9-2.154
Legislative Proposals by United States Attorneys
The Criminal Division is interested in obtaining the benefit of any
suggestions by United States Attorney or their Assistants for changes in
federal statutory law, or rules, affecting criminal prosecutions.
Accordingly, United States Attorneys and Assistant United States
Attorneys are encouraged to develop such proposals and to forward them
for initial consideration to the Office of Policy and Legislation. The
suggestions for changes in rules and legislation may also be submitted
concurrently to the Legislation and Public Policy Subcommittee of the
Attorney General's Advisory Committee of United States Attorneys.
Suggested legislative changes should be submitted concurrently to the
Office of Legislative Affairs.
United States Attorneys and their staffs are reminded that all
suggestions for changes in federal criminal statutes must be
communicated to the Department of Justice and not to Congress directly.
Unsolicited communication to Congress of individual proposals for
legislation, outside proper official channels, has the potential to
cause grave embarrassment to the Department and, however well motivated,
is contrary to Department policy. See also,
18 U.S.C. § 1913. See also
USAM 1-8.000 (Relations with the
Congress).
9-2.155
Sensitive Matters
The United States Attorney should keep the Criminal Division
apprised of all developments in sensitive criminal matters, particularly
those which may generate questions to the Criminal Division or higher
authority. See also USAM 3-18.200, Urgent
Reports.
[updated July 1999]
9-2.159
Refusal of Government Departments and Agencies to Produce Evidence
It is the responsibility of the Department of Justice to enforce the
law vigorously and it cannot abdicate this duty because of possible
embarrassment to other agencies of the government. Situations may arise
where substantial reasons of national security, foreign policy or the
like may require the Department to abandon an investigation, forego
litigation, or seek dismissal of a case. However, such action should be
taken only after the most careful consideration of all of the relevant
facts and then only with the personal approval of the Assistant Attorney
General (AAG) in charge of the Division having responsibility for the
case.
Accordingly, all United States Attorneys handling cases in which
another government agency refuses to produce records or witnesses
necessary for successful litigation of the case are directed to proceed
in the following manner:
- In no event should the United States Attorney accept the opinion
or representation of the agency that such records or witnesses cannot be
made available without determining all of the specific facts upon which
the agency relies to support its refusal.
- If the United States Attorney is not satisfied that the facts
justify the refusal, he/she should so advise the agency and seek to
procure the evidence requested of the agency.
- If the United States Attorney concurs that there are sufficient
and valid reasons to support the agency's refusal to produce the
necessary evidence, he/she should advise the AAG in charge of the
division having jurisdiction over the subject matter of the case of
his/her conclusion. That AAG, after consultation with the Deputy
Attorney General, will authorize the United States Attorney, if
necessary and appropriate, to terminate the investigation, forego the
litigation, or dismiss the case. A full statement of the facts
supporting the conclusion of the United States Attorney should be set
forth in the correspondence to the appropriate AAG.
The United States Attorney should also apprise the appropriate
AAG of any incidents coming to his/her attention where he/she believes
any agency of the federal government is not cooperating in his/her
efforts to obtain the full disclosure of the facts to enable him/her to
make an intelligent judgment as to whether the agency's refusal to
produce requested evidence is justified.
9-2.170
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