9-27.001
Preface
These principles of Federal prosecution provide to Federal
prosecutors a statement of sound prosecutorial policies and
practices for particularly important areas of their work. As such,
it should promote the reasoned exercise of prosecutorial authority
and contribute to the fair, evenhanded administration of the
Federal criminal laws.
The manner in which Federal prosecutors exercise their
decision-making authority has far-reaching implications, both in
terms of justice and effectiveness in law enforcement and in terms
of the consequences for individual citizens. A determination to
prosecute represents a policy judgment that the fundamental
interests of society require the application of the criminal laws
to a particular set of circumstancesrecognizing both that serious
violations of Federal law must be prosecuted, and that prosecution
entails profound consequences for the accused and the family of the
accused whether or not a conviction ultimately results. Other
prosecutorial decisions can be equally significant. Decisions, for
example, regarding the specific charges to be brought, or
concerning plea dispositions, effectively determine the range of
sanctions that may be imposed for criminal conduct. The rare
decision to consent to pleas of nolo contendere may affect the
success of related civil suits for recovery of damages. Also, the
government's position during the sentencing process will help
assure that the court imposes a sentence consistent with the
Sentencing Reform Act.
These principles of Federal prosecution have been designed to
assist in structuring the decision-making process of attorneys for
the government. For the most part, they have been cast in general
terms with a view to providing guidance rather than to mandating
results. The intent is to assure regularity without regimentation,
to prevent unwarranted disparity without sacrificing necessary
flexibility.
The availability of this statement of principles to Federal law
enforcement officials and to the public serves two important
purposes: ensuring the fair and effective exercise of prosecutorial
responsibility by attorneys for the government, and promoting
confidence on the part of the public and individual defendants that
important prosecutorial decisions will be made rationally and
objectively on the merits of each case. The Principles provide
convenient reference points for the process of making prosecutorial
decisions; they facilitate the task of training new attorneys in
the proper discharge of their duties; they contribute to more
effective management of the government's limited prosecutorial
resources by promoting greater consistency among the prosecutorial
activities of all United States Attorney's offices and between
their activities and the Department's law enforcement priorities;
they make possible better coordination of investigative and
prosecutorial activity by enhan cing the understanding of
investigating departments and agencies of the considerations
underlying prosecutorial decisions by the Department; and they
inform the public of the careful process by which prosecutorial
decisions are made.
Important though these principles are to the proper operation
of our Federal prosecutorial system, the success of that system
must rely ultimately on the character, integrity, sensitivity, and
competence of those men and women who are selected to represent the
public interest in the Federal criminal justice process. It is with
their help that these principles have been prepared, and it is with
their efforts that the purposes of these principles will be
achieved.
These principles were originally promulgated by Attorney
General Benjamin R. Civiletti on July 28, 1980. While they have
since been updated to reflect changes in the law and current policy
of the Department of Justice, the underlying message to Federal
prosecutors remains unchanged.
9-27.110
Purpose
|
- The principles of Federal prosecution set forth
herein are intended to promote the reasoned exercise of
prosecutorial discretion by attorneys for the government with
respect to:
- Initiating and declining prosecution;
- Selecting charges;
- Entering into plea agreements;
- Opposing offers to plead nolo contendere;
- Entering into non-prosecution agreements in return for
cooperation; and
- Participating in sentencing.
- Comment. Under the Federal criminal justice system, the
prosecutor has wide latitude in determining when, whom, how, and
even whether to prosecute for apparent violations of Federal
criminal law. The prosecutor's broad discretion in such areas as
initiating or foregoing prosecutions, selecting or recommending
specific charges, and terminating prosecutions by accepting guilty
pleas has been recognized on numerous occasions by the courts.
See, e.g., Oyler v. Boles, 368 U.S. 448 (1962);
Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967);
Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965),
cert. denied, 384 U.S. 906 (1966). This discretion exists by
virtue of his/her status as a member of the Executive Branch, which
is charged under the Constitution with ensuring that the laws of
the United States be "faithfully executed." U.S. Const. Art.
§ 3. See Nader v. Saxbe, 497 F.2d 676, 679
n. 18 (D.C. Cir. 1974).
- Since Federal prosecutors have great latitude in making crucial
decisions concerning enforcement of a nationwide system of criminal
justice, it is desirable, in the interest of the fair and effective
administration of justice in the Federal system, that all Federal
prosecutors be guided by a general statement of principles that
summarizes appropriate considerations to be weighed, and desirable
practices to be followed, in discharging their prosecutorial
responsibilities.
- Although these principles deal with the specific situations
indicated, they should be read in the broader context of the basic
responsibilities of Federal attorneys: making certain that the
general purposes of the criminal lawassurance of warranted
punishment, deterrence of further criminal conduct, protection of
the public from dangerous offenders, and rehabilitation of
offendersare adequately met, while making certain also that the
rights of individuals are scrupulously protected.
[cited in
USAM 9-2.031]
9-27.120
Application
- In carrying out criminal law enforcement
responsibilities, each Department of Justice attorney should be
guided by the principles set forth herein, and each United States
Attorney and each Assistant Attorney General should ensure that
such principles are communicated to the attorneys who exercise
prosecutorial responsibility within his/her office or under his/her
direction or supervision.
- Comment. It is expected that each Federal prosecutor will be
guided by these principles in carrying out his/her criminal law
enforcement responsibilities unless a modification of, or departure
from, these principles has been authorized pursuant to
USAM 9-27.140. See also
Criminal Resource Manual 792
("Incentives for Subjects and Targets of Criminal Investigations
and Defendants in Criminal Cases to Provide Foreign Intelligence
Information"). However, it is not intended that reference to these
principles will require a particular prosecutorial decision in any
given case. Rather, these principles are set forth solely for the
purpose of assisting attorneys for the government in determining
how best to exercise their authority in the performance of their
duties.
[updated January 2007]
9-27.130
Implementation
- Each United States Attorney (USA) and responsible
Assistant Attorney General should establish internal office
procedures to ensure:
- That prosecutorial decisions are made at an appropriate
level of responsibility, and are made consistent with these
principles; and
- That serious, unjustified departures from the principles set
forth herein are followed by such remedial action, including the
imposition of disciplinary sanctions, when warranted, as are deemed
appropriate.
- Comment. Each USA and each Assistant Attorney General
responsible for the enforcement of Federal criminal law should
supplement the guidance provided by the principles set forth herein
by establishing appropriate internal procedures for his/her office.
One purpose of such procedures should be to ensure consistency in
the decisions within each office by regularizing the decision
making process so that decisions are made at the appropriate level
of responsibility. A second purpose, equally important, is to
provide appropriate remedies for serious, unjustified departures
from sound prosecutorial principles. The USA or Assistant Attorney
General may also wish to establish internal procedures for
appropriate review and documentation of decisions.
| 9-27.140
Modifications or Departures
- United States Attorneys (USA) may modify or depart
from the principles set forth herein as necessary in the interests
of fair and effective law enforcement within the district. Any
significant modification or departure contemplated as a matter of
policy or regular practice must be approved by the appropriate
Assistant Attorney General and the Deputy Attorney General.
- Comment. Although these materials are designed to promote
consistency in the application of Federal criminal laws, they are
not intended to produce rigid uniformity among Federal prosecutors
in all areas of the country at the expense of the fair
administration of justice. Different offices face different
conditions and have different requirements. In recognition of these
realities, and in order to maintain the flexibility necessary to
respond fairly and effectively to local conditions, each USA is
specifically authorized to modify or depart from the principles set
forth herein, as necessary in the interests of fair and effective
law enforcement within the district. In situations in which a
modification or departure is contemplated as a matter of policy or
regular practice, the appropriate Assistant Attorney General and
the Deputy Attorney General must approve the action before it is
adopted.
[cited in
USAM 9-27.120]
9-27.150
Non-Litigability
- The principles set forth herein, and internal
office procedures adopted pursuant hereto, are intended solely for
the guidance of attorneys for the government. They are not intended
to, do not, and may not be relied upon to create a right or
benefit, substantive or procedural, enforceable at law by a party
to litigation with the United States.
- Comment. This statement of principles has been developed
purely as matter of internal Departmental policy and is being
provided to Federal prosecutors solely for their own guidance in
performing their duties. Neither this statement of principles nor
any internal procedures adopted by individual offices pursuant
hereto creates any rights or benefits. By setting forth this fact
explicitly, USAM 9-27.150 is
intended to foreclose efforts to litigate the validity of
prosecutorial actions alleged to be at variance with these
principles or not in compliance with internal office procedures
that may be adopted pursuant hereto. In the event that an attempt
is made to litigate any aspect of these principles, or to litigate
any internal office procedures adopted pursuant to these materials,
or to litigate the applicability of such principles or procedures
to a particular case, the United States Attorney concerned should
oppose the attempt and should notify the Department
immediately.
| 9-27.200
Initiating and Declining ProsecutionProbable Cause Requirement
- If the attorney for the government has probable
cause to believe that a person has committed a Federal offense
within his/her jurisdiction, he/she should consider whether to:
- Request or conduct further investigation;
- Commence or recommend prosecution;
- Decline prosecution and refer the matter for prosecutorial
consideration in another jurisdiction;
- Decline prosecution and initiate or recommend pretrial
diversion or other non-criminal disposition; or
- Decline prosecution without taking other action.
- Comment. USAM 9-27.220 sets
forth the courses of action available to the attorney for the
government once he/she has probable cause to believe that a person
has committed a Federal offense within his/her jurisdiction. The
probable cause standard is the same standard as that required for
the issuance of an arrest warrant or a summons upon a complaint
(See Fed. R. Crim. P. 4(a)), for a magistrate' s decision to
hold a defendant to answer in the district court (See Fed.
R. Crim. P. 5.1(a)), and is the minimal requirement for indictment
by a grand jury. See Branzburg v. Hayes, 408 U.S.
665, 686 (1972). This is, of course, a threshold consideration
only. Merely because this requirement can be met in a given case
does not automatically warrant prosecution; further investigation
may be warranted, and the prosecutor should still take into account
all relevant considerations, including those described in the
following provis ions, in deciding upon his/her course of action.
On the other hand, failure to meet the minimal requirement of
probable cause is an absolute bar to initiating a Federal
prosecution, and in some circumstances may preclude reference to
other prosecuting authorities or recourse to non-criminal sanctions
as well.
[cited in
USAM 9-10.060;
USAM 9-2.031]
9-27.220
Grounds for Commencing or Declining Prosecution
- The attorney for the government should commence or
recommend Federal prosecution if he/she believes that the person's
conduct constitutes a Federal offense and that the admissible
evidence will probably be sufficient to obtain and sustain a
conviction, unless, in his/her judgment, prosecution should be
declined because:
- No substantial Federal interest would be served by
prosecution;
- The person is subject to effective prosecution in another
jurisdiction; or
- There exists an adequate non-criminal alternative to
prosecution.
- Comment. USAM 9-27.220
expresses the principle that, ordinarily, the attorney for the
government should initiate or recommend Federal prosecution if
he/she believes that the person's conduct constitutes a Federal
offense and that the admissible evidence probably will be
sufficient to obtain and sustain a conviction. Evidence sufficient
to sustain a conviction is required under Rule 29(a), Fed. R. Crim.
P., to avoid a judgment of acquittal. Moreover, both as a matter of
fundamental fairness and in the interest of the efficient
administration of justice, no prosecution should be initiated
against any person unless the government believes that the person
probably will be found guilty by an unbiased trier of fact. In this
connection, it should be noted that, when deciding whether to
prosecute, the government attorney need not have in hand all the
evidence upon which he/she intends to rely at trial: it is
sufficient that he/she have a reasonable be lief that such evidence
will be available and admissible at the time of trial. Thus, for
example, it would be proper to commence a prosecution though a key
witness is out of the country, so long as the witness's presence at
trial could be expected with reasonable certainty.
- The potential thatdespite the law and the facts that create
a sound, prosecutable casethe factfinder is likely to 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/her cause, is not a factor prohibiting
prosecution. For example, in a civil rights case or a case
involving an extremely popular political figure, it might be clear
that the evidence of guiltviewed objectively by an unbiased
factfinderwould be sufficient to obtain and sustain a conviction,
yet the prosecutor might reasonably doubt whether the jury would
convict. In such a case, despite his/her negative assessment of the
likelihood of a guilty verdict (based on factors extraneous to an
objective view of the law and the facts), the prosecutor may
properly conclude that it is necessary and desirable to commence or
recommend prosecution and allow the criminal process to operate in
accordance with its princip les.
- Merely because the attorney for the government believes that a
person's conduct constitutes a Federal offense and that the
admissible evidence will be sufficient to obtain and sustain a
conviction, does not mean that he/she necessarily should initiate
or recommend prosecution: USAM
9-27.220 notes three situations in which the prosecutor may
property decline to take action nonetheless: when no substantial
Federal interest would be served by prosecution; when the person is
subject to effective prosecution in another jurisdiction; and when
there exists an adequate non-criminal alternative to prosecution.
It is left to the judgment of the attorney for the government
whether such a situation exists. In exercising that judgment, the
attorney for the government should consult
USAM 9-27.230,
9-27.240, or
9-27.250, as appropriate.
[cited in
USAM 6-4.210;
USAM 9-10.060;
USAM 9-27.200;
USAM 9-28.300]
| 9-27.230
Initiating and Declining ChargesSubstantial Federal Interest
- In determining whether prosecution should be
declined because no substantial Federal interest would be served by
prosecution, the attorney for the government should weigh all
relevant considerations, including:
- Federal law enforcement priorities;
- The nature and seriousness of the offense;
- The deterrent effect of prosecution;
- The person's culpability in connection with the offense;
- The person's history with respect to criminal activity;
- The person's willingness to cooperate in the investigation or
prosecution of others; and
- The probable sentence or other consequences if the person is
convicted.
- Comment. USAM 9-27.230 lists
factors that may be relevant in determining whether prosecution
should be declined because no substantial Federal interest would be
served by prosecution in a case in which the person is believed to
have committed a Federal offense and the admissible evidence is
expected to be sufficient to obtain and sustain a conviction. The
list of relevant considerations is not intended to be
all-inclusive. Obviously, not all of the factors will be applicable
to every case, and in any particular case one factor may deserve
more weight than it might in another case.
- Federal Law Enforcement Priorities.
Federal law
enforcement resources and Federal judicial resources are not
sufficient to permit prosecution of every alleged offense over
which Federal jurisdiction exists. Accordingly, in the interest of
allocating its limited resources so as to achieve an effective
nationwide law enforcement program, from time to time the
Department establishes national investigative and prosecutorial
priorities. These priorities are designed to focus Federal law
enforcement efforts on those matters within the Federal
jurisdiction that are most deserving of Federal attention and are
most likely to be handled effectively at the Federal level. In
addition, individual United States Attorneys may establish their
own priorities, within the national priorities, in order to
concentrate their resources on problems of particular local or
regional significance. In weighing the Federal interest in a
particular prosecution, the attorney for the government s hould
give careful consideration to the extent to which prosecution would
accord with established priorities.
- Nature and Seriousness of Offense.
It is important that
limited Federal resources not be wasted in prosecuting
inconsequential cases or cases in which the violation is only
technical. Thus, in determining whether a substantial Federal
interest exists that requires prosecution, the attorney for the
government should consider the nature and seriousness of the
offense involved. A number of factors may be relevant. One factor
that is obviously of primary importance is the actual or potential
impact of the offense on the community and on the victim.
The impact of an offense on the community in which it is committed
can be measured in several ways: in terms of economic harm done to
community interests; in terms of physical danger to the citizens or
damage to public property; and in terms of erosion of the
inhabitants' peace of mind and sense of security. In assessing the
seriousness of the offense in these terms, the prosecutor may
properly weigh such questions as whether the violation is technical
or relatively inconsequential in nature and what the public
attitude is toward prosecution under the circumstances of the case.
The public may be indifferent, or even opposed, to enforcement of
the controlling statute whether on substantive grounds, or because
of a history of nonenforcement, or because the offense involves
essentially a minor matter of private concern and the victim is not
interested in having it pursued. On the other hand, the nature and
circumstances of the offense, the identity of the offender or the
victim, or t he attendant publicity, may be such as to create
strong public sentiment in favor of prosecution. While public
interest, or lack thereof, deserves the prosecutor's careful
attention, it should not be used to justify a decision to
prosecute, or to take other action, that cannot be supported on
other grounds. Public and professional responsibility sometimes
will require the choosing of a particularly unpopular course.
Economic, physical, and psychological considerations are also
important in assessing the impact of the offense on the victim. In
this connection, it is appropriate for the prosecutor to take into
account such matters as the victim's age or health, and whether
full or partial restitution has been made. Care should be taken in
weighing the matter of restitution, however, to ensure against
contributing to an impression that an offender can escape
prosecution merely by returning the spoils of his/her crime.
- Deterrent Effect of Prosecution.
Deterrence of criminal
conduct, whether it be criminal activity generally or a specific
type of criminal conduct, is one of the primary goals of the
criminal law. This purpose should be kept in mind, particularly
when deciding whether a prosecution is warranted for an offense
that appears to be relatively minor; some offenses, although
seemingly not of great importance by themselves, if commonly
committed would have a substantial cumulative impact on the
community.
- The Person's Culpability.
Although the prosecutor has
sufficient evidence of guilt, it is nevertheless appropriate for
him/her to give consideration to the degree of the person's
culpability in connection with the offenses, both in the abstract
and in comparison with any others involved in the offense. If for
example, the person was a relatively minor participant in a
criminal enterprise conducted by others, or his/her motive was
worthy, and no other circumstances require prosecution, the
prosecutor might reasonably conclude that some course other than
prosecution would be appropriate.
- The Person's Criminal History.
If a person is known to
have a prior conviction or is reasonably believed to have engaged
in criminal activity at an earlier time, this should, be considered
in determining whether to initiate or recommend Federal
prosecution. In this connection particular attention should be
given to the nature of the person's prior criminal involvement,
when it occurred, its relationship if any to the present offense,
and whether he/she previously avoided prosecution as a result of an
agreement not to prosecute in return for cooperation or as a result
of an order compelling his/her testimony. By the same token, a
person's lack of prior criminal involvement or his/her previous
cooperation with the law enforcement officials should be given due
consideration in appropriate cases.
- The Person's Willingness to Cooperate.
A person's
willingness to cooperate in the investigation or prosecution of
others is another appropriate consideration in the determination
whether a Federal prosecution should be undertaken. Generally
speaking, a willingness to cooperate should not by itself relieve
a person of criminal liability. There may be some cases, however,
in which the value of a person's cooperation clearly outweighs the
Federal interest in prosecuting him/her. These matters are
discussed more fully below, in connection with plea agreements and
non-prosecution agreements in return for cooperation.
- The Person's Personal Circumstances.
In some cases, the
personal circumstances of an accused may be relevant in determining
whether to prosecute or to take other action. Some circumstances
peculiar to the accused, such as extreme youth, advanced age, or
mental or physical impairment, may suggest that prosecution is not
the most appropriate response to his/her offense; other
circumstances, such as the fact that the accused occupied a
position of trust or responsibility which he/she violated in
committing the offense, might weigh in favor of prosecution.
- The Probable Sentence.
In assessing the strength of the
Federal interest in prosecution, the attorney for the government
should consider the sentence, or other consequence, that is likely
to be imposed if prosecution is successful, and whether such a
sentence or other consequence would justify the time and effort of
prosecution. If the offender is already subject to a substantial
sentence, or is already incarcerated, as a result of a conviction
for another offense, the prosecutor should weigh the likelihood
that another conviction will result in a meaningful addition to
his/her sentence, might otherwise have a deterrent effect, or is
necessary to ensure that the offender's record accurately reflects
the extent of his/her criminal conduct. For example, it might be
desirable to commence a bail-jumping prosecution against a person
who already has been convicted of another offense so that law
enforcement personnel and judicial officers who encounter him/her
in the future wil l be aware of the risk of releasing him/her on
bail. On the other hand, if the person is on probation or parole as
a result of an earlier conviction, the prosecutor should consider
whether the public interest might better be served by instituting
a proceeding for violation of probation or revocation of parole,
than by commencing a new prosecution. The prosecutor should also be
alert to the desirability of instituting prosecution to prevent the
running of the statute of limitations and to preserve the
availability of a basis for an adequate sentence if there appears
to be a chance that an offender's prior conviction may be reversed
on appeal or collateral attack. Finally, if a person previously has
been prosecuted in another jurisdiction for the same offense or a
closely related offense, the attorney for the government should
consult existing departmental policy statements on the subject of
"successive prosecution" or "dual prosecution," depending on
whether the earlier prosecution w as Federal or nonfederal. See
USAM 9-2.031 (Petite Policy).
- Just as there are factors that are appropriate to consider in
determining whether a substantial Federal interest would be served
by prosecution in a particular case, there are considerations that
deserve no weight and should not influence the decision. These
include the time and resources expended in Federal investigation of
the case. No amount of investigative effort warrants commencing a
Federal prosecution that is not fully justified on other
grounds.
[cited in
USAM 9-2.031;
USAM 9-27.220]
9-27.240
Initiating and Declining ChargesProsecution in Another
Jurisdiction
- In determining whether prosecution should be
declined because the person is subject to effective prosecution in
another jurisdiction, the attorney for the government should weigh
all relevant considerations, including:
- The strength of the other jurisdiction's interest in
prosecution;
- The other jurisdictions ability and willingness to prosecute
effectively; and
- The probable sentence or other consequences if the person is
convicted in the other jurisdiction.
- Comment. In many instances, it may be possible to prosecute
criminal conduct in more than one jurisdiction. Although there may
be instances in which a Federal prosecutor may wish to consider
deferring to prosecution in another Federal district, in most
instances the choice will probably be between Federal prosecution
and prosecution by state or local authorities.
USAM 9-27.240 sets forth three
general considerations to be taken into account in determining
whether a person is likely to be prosecuted effectively in another
jurisdiction: the strength of the jurisdiction's interest in
prosecution; its ability and willingness to prosecute effectively;
and the probable sentence or other consequences if the person is
convicted. As indicated with respect to the considerations listed
in paragraph 3, these factors are illustrative only, and the
attorney for the government should also consider any others that
appear relevant to his/her in a particular cas e.
- The Strength of the Jurisdiction's Interest.
The
attorney for the government should consider the relative Federal
and state characteristics of the criminal conduct involved. Some
offenses, even though in violation of Federal law, are of
particularly strong interest to the authorities of the state or
local jurisdiction in which they occur, either because of the
nature of the offense, the identity of the offender or victim, the
fact that the investigation was conducted primarily by state or
local investigators, or some other circumstance. Whatever the
reason, when it appears that the Federal interest in prosecution is
less substantial than the interest of state or local authorities,
consideration should be given to referring the case to those
authorities rather than commencing or recommending a Federal
prosecution.
- Ability and Willingness to Prosecute Effectively.
In
assessing the likelihood of effective prosecution in another
jurisdiction, the attorney for the government should also consider
the intent of the authorities in that jurisdiction and whether that
jurisdiction has the prosecutorial and judicial resources necessary
to undertake prosecution promptly and effectively. Other relevant
factors might be legal or evidentiary problems that might attend
prosecution in the other jurisdiction. In addition, the Federal
prosecutor should be alert to any local conditions, attitudes,
relationships, or other circumstances that might cast doubt on the
likelihood of the state or local authorities conducting a thorough
and successful prosecution.
- Probable Sentence Upon Conviction.
The ultimate measure
of the potential for effective prosecution in another jurisdiction
is the sentence, or other consequence, that is likely to be imposed
if the person is convicted. In considering this factor, the
attorney for the government should bear in mind not only the
statutory penalties in the jurisdiction and sentencing patterns in
similar cases, but also, the particular characteristics of the
offense or, of the offender that might be relevant to sentencing.
He/she should also be alert to the possibility that a conviction
under state law may, in some cases result in collateral
consequences for the defendant, such as disbarment, that might not
follow upon a conviction under Federal law.
[cited in
USAM 5-11.113;
USAM 9-27.220;
USAM 9-28.1100]
9-27.250
Non-Criminal Alternatives to Prosecution
- In determining whether prosecution should be
declined because there exists an adequate, non-criminal alternative
to prosecution, the attorney for the government should consider all
relevant factors, including:
- The sanctions available under the alternative means of
disposition;
- The likelihood that an effective sanction will be imposed; and
- The effect of non-criminal disposition on Federal law
enforcement interests.
- Comment. When a person has committed a Federal offense, it is
important that the law respond promptly, fairly, and effectively.
This does not mean, however, that a criminal prosecution must be
initiated. In recognition of the fact that resort to the criminal
process is not necessarily the only appropriate response to serious
forms of antisocial activity, Congress and state legislatures have
provided civil and administrative remedies for many types of
conduct that may also be subject to criminal sanction. Examples of
such non-criminal approaches include civil tax proceedings; civil
actions under the securities, customs, antitrust, or other
regulatory laws; and reference of complaints to licensing
authorities or to professional organizations such as bar
associations. Another potentially useful alternative to prosecution
in some cases is pretrial diversion. See
USAM 9-22.000.
- Attorneys for the government should familiarize themselves with
these alternatives and should consider pursuing them if they are
available in a particular case. Although on some occasions they
should be pursued in addition to the criminal law procedures, on
other occasions they can be expected to provide an effective
substitute for criminal prosecution. In weighing the adequacy of
such an alternative in a particular case, the prosecutor should
consider the nature and severity of the sanctions that could be
imposed, the likelihood that an adequate sanction would in fact be
imposed, and the effect of such a non-criminal disposition on
Federal law enforcement interests. It should be noted that
referrals for non-criminal disposition may not include the transfer
of grand jury material unless an order under Rule 6(e), Federal
Rules of Criminal Procedure, has been obtained. See
United States v. Sells Engineering, Inc., 463 U.S. 418
(1983).
[cited in
USAM 9-27.220;
USAM 9-28.1100]
9-27.260
Initiating and Declining ChargesImpermissible Considerations
- In determining whether to commence or recommend
prosecution or take other action against a person, the attorney for
the government should not be influenced by:
- The person's race, religion, sex, national origin, or
political association, activities or beliefs;
- The attorney's own personal feelings concerning the person,
the person's associates, or the victim; or
- The possible affect of the decision on the attorney's own
professional or personal circumstances.
- Comment. USAM 9-27.260 sets
forth various matters that plainly should not influence the
determination whether to initiate or recommend prosecution or take
other action. They are listed here not because it is anticipated
that any attorney for the government might allow them to affect
his/her judgment, but in order to make clear that Federal
prosecutors will not be influenced by such improper considerations.
Of course, in a case in which a particular characteristic listed in
subparagraph (1) is pertinent to the offense (for example, in an
immigration case the fact that the offender is not a United States
national, or in a civil rights case the fact that the victim and
the offender are of different races), the provision would not
prohibit the prosecutor from considering it for the purpose
intended by the Congress.
| 9-27.270
Records of Prosecutions Declined
- Whenever the attorney for the government declines
to commence or recommend Federal prosecution, he/she should ensure
that his/her decision and the reasons therefore are communicated to
the investigating agency involved and to any other interested
agency, and are reflected in the office files.
- Comment. USAM 9-27.270 is
intended primarily to ensure an adequate record of disposition of
matters that are brought to the attention of the government
attorney for possible criminal prosecution, but that do not result
in Federal prosecution. When prosecution is declined in serious
cases on the understanding that action will be taken by other
authorities, appropriate steps should be taken to ensure that the
matter receives their attention and to ensure coordination or
follow-up.
| 9-27.300
Selecting ChargesCharging Most Serious Offenses
- Except as provided in
USAM 9-27.330, (precharge plea
agreements), once the decision to prosecute has been made, the
attorney for the government should charge, or should recommend that
the grand jury charge, the most serious offense that is consistent
with the nature of the defendant's conduct, and that is likely to
result in a sustainable conviction. If mandatory minimum sentences
are also involved, their effect must be considered, keeping in mind
the fact that a mandatory minimum is statutory and generally
overrules a guideline. The "most serious" offense is generally that
which yields the highest range under the sentencing guidelines.
- However, a faithful and honest application of the Sentencing
Guidelines is not incompatible with selecting charges or entering
into plea agreements on the basis of an individualized assessment
of the extent to which particular charges fit the specific
circumstances of the case, are consistent with the purposes of the
Federal criminal code, and maximize the impact of Federal resources
on crime. Thus, for example, in determining "the most serious
offense that is consistent with the nature of the defendant's
conduct that is likely to result in a sustainable conviction," it
is appropriate that the attorney for the government consider, inter
alia, such factors as the Sentencing Guideline range yielded by the
charge, whether the penalty yielded by such sentencing range (or
potential mandatory minimum charge, if applicable) is proportional
to the seriousness of the defendant's conduct, and whether the
charge achieves such purposes of the criminal law as punishment,
protection of the pub lic, specific and general deterrence, and
rehabilitation. Note that these factors may also be considered by
the attorney for the government when entering into plea agreements.
USAM 9-27.400.
- To ensure consistency and accountability, charging and plea
agreement decisions must be made at an appropriate level of
responsibility and documented with an appropriate record of the
factors applied.
- Comment. Once it has been determined to initiate prosecution,
either by filing a complaint or an information, or by seeking an
indictment from the grand jury, the attorney for the government
must determine what charges to file or recommend. When the conduct
in question consists of a single criminal act, or when there is
only one applicable statute, this is not a difficult task.
Typically, however, a defendant will have committed more than one
criminal act and his/her conduct may be prosecuted under more than
one statute. Moreover, selection of charges may be complicated
further by the fact that different statutes have different proof
requirements and provide substantially different penalties. In such
cases, considerable care is required to ensure selection of the
proper charge or charges. In addition to reviewing the concerns
that prompted the decision to prosecute in the first instance,
particular attention should be given to the need to ensure that the
prosecution will be b oth fair and effective.
- At the outset, the attorney for the government should bear in
mind that at trial he/she will have to produce admissible evidence
sufficient to obtain and sustain a conviction or else the
government will suffer a dismissal. For this reason, he/she should
not include in an information or recommend in an indictment charges
that he/she cannot reasonably expect to prove beyond a reasonable
doubt by legally sufficient evidence at trial.
- In connection with the evidentiary basis for the charges
selected, the prosecutor should also be particularly mindful of the
different requirements of proof under different statutes covering
similar conduct. For example, the bribe provisions of 18 U.S.C.
§ 201 require proof of "corrupt intent," while the
'"gratuity" provisions do not. Similarly, the "two witness" rule
applies to perjury prosecutions under 18 U.S.C. § 1621
but not under 18 U.S.C. § 1623.
- As stated, a Federal prosecutor should initially charge the
most serious, readily provable offense or offenses consistent with
the defendant's conduct. Charges should not be filed simply to
exert leverage to induce a plea, nor should charges be abandoned in
an effort to arrive at a bargain that fails to reflect the
seriousness of the defendant's conduct.
- USAM 9-27.300 expresses the
principle that the defendant should be charged with the most
serious offense that is encompassed by his/her conduct and that is
readily provable. Ordinarily, as noted above this will be the
offense for which the most severe penalty is provided by law and
the guidelines. Where two crimes have the same statutory maximum
and the same guideline range, but only one contains a mandatory
minimum penalty, the one with the mandatory minimum is the more
serious. This principle provides the framework for ensuring equal
justice in the prosecution of Federal criminal offenders. It
guarantees that every defendant will start from the same position,
charged with the most serious criminal act he/she commits. Of
course, he/she may also be charged with other criminal acts (as
provided in USAM 9-27.320), if
the proof and the government's legitimate law enforcement
objectives warrant additional charges .
- Current drug laws provide for increased maximum, and in some
cases minimum, penalties for many offenses on the basis of a
defendant's prior criminal convictions. See, e.g., 21 U.S.C.
§§ 841 (b)(1)(A),(B), and (C), 848(a), 960 (b)(1),
(2), and (3), and 962. However, a court may not impose such an
increased penalty unless the United States Attorney has filed an
information with the court, before trial or before entry of a plea
of guilty, setting forth the previous convictions to be relied upon
21 U.S.C. § 851.
- Every prosecutor should regard the filing of an information
under 21 U.S.C. § 851 concerning prior convictions as
equivalent to the filing of charges. Just as a prosecutor must file
a readily provable charge, he or she must file an information under
21 U.S.C. § 851 regarding prior convictions that are
readily provable and that are known to the prosecutor prior to the
beginning of trial or entry of plea. The only exceptions to this
requirement are where: (1) the failure to file or the dismissal of
such pleadings would not affect the applicable guideline range from
which the sentence may be imposed; or (2) in the context of a
negotiated plea, the United States Attorney, the Chief Assistant
United States Attorney, the senior supervisory Criminal Assistant
United States Attorney or within the Department of Justice, a
Section Chief or Office Director has approved the negotiated
agreement. The reasons for such an agreement must be set forth in
writing. Such a reason might i nclude, for example, that the United
States Attorney's office is particularly overburdened, the case
would be time-consuming to try, and proceeding to trial would
significantly reduce the total number of cases disposed of by the
office. The permissible agreements within this context include: (1)
not filing an enhancement; (2) filing an enhancement which does not
allege all relevant prior convictions, thereby only partially
enhancing a defendant's potential sentence; and (3) dismissing a
previously filed enhancement.
- A negotiated plea which uses any of the options described in
this section must be made known to the sentencing court. In
addition, the sentence which can be imposed through the negotiated
plea must adequately reflect the seriousness of the offense.
- Prosecutors are reminded that when a defendant commits an armed
bank robbery or other crime of violence or drug trafficking crime,
appropriate charges include 18 U.S.C. § 924 (c).
[cited in
USAM 9-27.400;
USAM 9-28.1200;
USAM 9-100.020]
9-27.320
Additional Charges
- Except as hereafter provided, the attorney for the
government should also charge, or recommend that the grand jury
charge, other offenses only when, in his/her judgement, additional
charges:
- Are necessary to ensure that the information or
indictment:
- Adequately reflects the nature and extent of the
criminal conduct involved; and
- Provides the basis for an appropriate sentence under all the
circumstances of the case; or
- Will significantly enhance the strength of the government's
case against the defendant or a codefendant.
- Comment. It is important to the fair and efficient
administration of justice in the Federal system that the government
bring as few charges as are necessary to ensure that justice is
done. The bringing of unnecessary charges not only complicates and
prolongs trials, it constitutes an excessiveand potentially
unfairexercise of power. To ensure appropriately limited
exercises of the charging power, USAM
9-27.320 outlines three general situations in which additional
charges may be brought: (1) when necessary adequately to reflect
the nature and extent of the criminal conduct involved; (2) when
necessary to provide the basis for an appropriate sentence under
all the circumstances of the case; and (3) when an additional
charge or charges would significantly strengthen the case against
the defendant or a codefendant.
- Nature and Extent of Criminal Conduct.
Apart from
evidentiary considerations, the prosecutor's initial concern should
be to select charges that adequately reflect the nature and extent
of the criminal conduct involved. This means that the charges
selected should fairly describe both the kind and scope of unlawful
activity; should be legally sufficient; should provide notice to
the public of the seriousness of the conduct involved; and should
negate any impression that, after committing one offense, an
offender can commit others with impunity.
- Basis for Sentencing.
Proper charge selection also
requires consideration of the end result of successful
prosecutionthe imposition of an appropriate sentence under all
the circumstances of the case. In order to achieve this result, it
ordinarily should not be necessary to charge a person with every
offense for which he/she, may technically be liable (indeed,
charging every such offense may in some cases be perceived as an
unfair attempt to induce a guilty plea). What is important is that
the person be charged in such a manner that, if he/she is
convicted, the court may impose an appropriate sentence. Under the
sentencing guidelines, if the offense actually charged bears a true
relationship with the defendant's conduct, an appropriate guideline
sentence will follow. However, the prosecutor must take care to be
sure that the charges brought allow the guidelines to operate
properly. For instance, charging a significant participant in a
major drug conspiracy only with u sing a communication facility
would result in a sentence which, even if it were the maximum
possible under the charged offense, would be artificially low given
the defendant's actual conduct.
- Effect on the Government's Case.
When considering
whether to include a particular charge in the indictment or
information, the attorney for the government should bear in mind
the possible effects of inclusion or exclusion of the charge on the
government's case against the defendant or a codefendant. If the
evidence is available, it is proper to consider the tactical
advantages of bringing certain charges. For example, in a case in
which a substantive offense was committed pursuant to an unlawful
agreement, inclusion of a conspiracy count is permissible and may
be desirable to ensure the introduction of all relevant evidence at
trial. Similarly, it might be important to include a perjury or
false statement count in an indictment charging other offenses, in
order to give the jury a complete picture of the defendant's
criminal conduct. Failure to include appropriate charges for which
the proof is sufficient may not only result in the exclusion, of
relevant evidence, but ma y impair the prosector's ability to prove
a coherent case, and lead to jury confusion as well. In this
connection, it is important to remember that, in multi-defendant
cases, the presence or absence of a particular charge against one
defendant may affect the strength of the case against another
defendant. In short, when the evidence exists, the charges should
be structured so as to permit proof of the strongest case possible
without undue burden on the administration of justice.
[cited in
USAM 6-4.210;
USAM 9-27.300]
9-27.330
Pre-Charge Plea Agreements
Before filing or recommending charges pursuant to a precharge
plea agreement, the attorney for the government should consult the
plea agreement provisions of USAM
9-27.430, thereof, relating to the selection of charges to
which a defendant should be required to plead guilty.
[cited in
USAM 9-27.300]
9-27.400
Plea Agreements Generally
- The attorney for the government may, in an
appropriate case, enter into an agreement with a defendant that,
upon the defendant's plea of guilty or nolo contendere to a charged
offense or to a lesser or related offense, he/she will move for
dismissal of other charges, take a certain position with respect to
the sentence to be imposed, or take other action. Plea agreements,
and the role of the courts in such agreements, are addressed in
Chapter Six of the Sentencing Guidelines. See also
USAM 9-27.300 which discusses the
individualized assessment by prosecutors of the extent to which
particular charges fit the specific circumstances of the case, are
consistent with the purposes of the Federal criminal code, and
maximize the impact of Federal resources on crime.
- Comment. USAM 9-27.400
permits, in appropriate cases, the disposition of Federal criminal
charges pursuant to plea agreements between defendants and
government attorneys. Such negotiated dispositions should be
distinguished from situations in which a defendant pleads guilty or
nolo contendere to fewer than all counts of an information or
indictment in the absence of any agreement with the government.
Only the former type of disposition is covered by the provisions of
USAM 9-27.400 et seq.
- Negotiated plea dispositions are explicitly sanctioned by Rule
11(e)(1), Fed. R. Crim. P., which provides that:
The attorney for the government and the attorney for the
defendant or the defendant when acting pro se may engage in
discussions with a view toward reaching an agreement that upon the
entering of a plea of guilty or nolo contendere to a charged
offense or to a lesser or related offense, the attorney for the
government will do any of the following:
- Move for dismissal of other charges; or
- Make a recommendation, or agree not to oppose, the defendant's
request for a particular sentence, with the understanding that such
recommendation or request shall not be binding upon the court; or
- Agree that a specific sentence is the appropriate disposition
of the case.
Three types of plea agreements are encompassed by the language
of USAM 9-27.400, agreements
whereby in return for the defendant's plea to a charged offense or
to a lesser or related offense, other charges are dismissed
("charge agreements"); agreements pursuant to which the government
takes a certain position regarding the sentence to be imposed
("sentence agreements"); and agreements that combine a plea with a
dismissal of charges and an undertaking by the prosecutor
concerning the government's position at sentencing ("mixed
agreements").
Once prosecutors have indicted, they should find themselves
bargaining about charges which they have determined are readily
provable and reflect the seriousness of the defendant's conduct.
Charge agreements envision dismissal of counts in exchange for a
plea. As with the indictment decision, the prosecutor should seek
a plea to the most serious readily provable offense charged. Should
a prosecutor determine in good faith after indictment that, as a
result of a change in the evidence or for another reason (e.g., a
need has arisen to protect the identity of a particular witness
until he or she testifies against a more significant defendant), a
charge is not readily provable or that an indictment exaggerates
the seriousness of an offense or offenses, a plea bargain may
reflect the prosecutor's reassessment. There should be
documentation, however, in a case in which charges originally
brought are dropped.
The language of USAM 9-27.400
with respect to sentence agreements is intended to cover the entire
range of positions that the government might wish to take at the
time of sentencing. Among the options are: taking no position
regarding the sentence; not opposing the defendant's request;
requesting a specific type of sentence (e.g., a fine or probation),
a specific fine or term of imprisonment, or not more than a
specific fine or term of imprisonment; and requesting concurrent
rather than consecutive sentences. Agreement to any such option
must be consistent with the guidelines.
There are only two types of sentence bargains. Both are
permissible, but one is more complicated than the other. First,
prosecutors may bargain for a sentence that is within the specified
United States Sentencing Commission's guideline range. This means
that when a guideline range is 18 to 24 months, the prosecutor has
discretion to agree to recommend a sentence of 18 to 20 months
rather than to argue for a sentence at the top of the range. Such
a plea does not require that the actual sentence range be
determined in advance. The plea agreement may have wording to the
effect that once the range is determined by the court, the United
States will recommend a low point in that range. Similarly, the
prosecutor may agree to recommend a downward adjustment for
acceptance of responsibility if he or she concludes in good faith
that the defendant is entitled to the adjustment. Second, the
prosecutor may seek to depart from the guidelines. This is more
complicated than a bargain invo lving a sentence within a guideline
range. Departures are discussed more generally below.
Department policy requires honesty in sentencing; Federal
prosecutors are expected to identify for the court departures when
they agree to support them. For example, it would be improper for
a prosecutor to agree that a departure is in order, but to conceal
the agreement in a charge bargain that is presented to a court as
a fait accompli so that there is neither a record of nor judicial
review of the departure.
Plea bargaining, both charge bargaining and sentence
bargaining, must honestly reflect the totality and seriousness of
the defendant's conduct and any departure to which the prosecutor
is agreeing, and must be accomplished through appropriate guideline
provisions.
The basic policy is that charges are not to be bargained away
or dropped, unless the prosecutor has a good faith doubt as to the
government's ability readily to prove a charge for legal or
evidentiary reasons. There are, however, two exceptions.
First, if the applicable guideline range from which a sentence
may be imposed would be unaffected, readily provable charges may be
dismissed or dropped as part of a plea bargain. It is important to
know whether dropping a charge may affect a sentence. For example,
the multiple offense rules in Part D of Chapter 3 of the guidelines
and the relevant conduct standard set forth in Sentencing Guideline
1B1.3(a)(2) will mean that certain dropped charges will be counted
for purposes of determining the sentence, subject to the statutory
maximum for the offense or offenses of conviction. It is vital that
Federal prosecutors understand when conduct that is not charged in
an indictment or conduct that is alleged in counts that are to be
dismissed pursuant to a bargain may be counted for sentencing
purposes and when it may not be. For example, in the case of a
defendant who could be charged with five bank robberies, a decision
to charge only one or to dismiss four counts pursuant to a bar gain
precludes any consideration of the four uncharged or dismissed
robberies in determining a guideline range, unless the plea
agreement included a stipulation as to the other robberies. In
contrast, in the case of a defendant who could be charged with five
counts of fraud, the total amount of money involved in a fraudulent
scheme will be considered in determining a guideline range even if
the defendant pleads guilty to a single count and there is no
stipulation as to the other counts.
Second, Federal prosecutors may drop readily provable charges
with the specific approval of the United States Attorney or
designated supervisory level official for reasons set forth in the
file of the case. This exception recognizes that the aims of the
Sentencing Reform Act must be sought without ignoring other,
critical aspects of the Federal criminal justice system. For
example, approvals to drop charges in a particular case might be
given because the United States Attorney's office is particularly
over-burdened, the case would be time-consuming to try, and
proceeding to trial would significantly reduce the total number of
cases disposed of by the office.
In Chapter 5, Part K of the Sentencing Guidelines, the
Commission has listed departures that may be considered by a court
in imposing a sentence. Moreover, Guideline 5K2.0 recognizes that
a sentencing court may consider a ground for departure that has not
been adequately considered by the Commission. A departure requires
approval by the court. It violates the spirit of the guidelines and
Department policy for prosecutor to enter into a plea bargain which
is based upon the prosecutor's and the defendant's agreement that
a departure is warranted, but that does not reveal to the court the
existence of the departure and thereby afford the court an
opportunity to reject it.
The Commission has recognized those bases for departure that
are commonly justified. Accordingly, before the government may seek
a departure based on a factor other than one set forth in Chapter
5, Part X, approval of the United States Attorney or designated
supervisory officials is required. This approval is required
whether or not a case is resolved through a negotiated plea.
Section 5K1.1 of the Sentencing Guidelines allows the United
States to file a pleading with the sentencing court which permits
the court to depart below the indicated guideline, on the basis
that the defendant provided substantial assistance in the
investigation or prosecution of another. Authority to approve such
pleadings is limited to the United States Attorney, the Chief
Assistant United States Attorney, and supervisory criminal
Assistant United States Attorneys, or a committee including at
least one of these individuals. Similarly, for Department of
Justice attorneys, approval authority should be vested in a Section
Chief or Office Director, or such official's deputy, or in a
committee which includes at least one of these individuals.
Every United States Attorney or Department of Justice Section
Chief or Office Director shall maintain documentation of the facts
behind and justification for each substantial assistance pleading.
The repository or repositories of this documentation need not be
the case file itself. Freedom of Information Act considerations may
suggest that a separate form showing the final decision be
maintained.
The procedures described above shall also apply to Motions
filed pursuant to Rule 35(b), Federal Rules of Criminal Procedure,
where the sentence of a cooperating defendant is reduced after
sentencing on motion of the United States. Such a filing is deemed
for sentencing purposes to be the equivalent of a substantial
assistance pleading.
The concession required by the government as part of a plea
agreement, whether it be a "charge agreement," a "sentence
agreement," or a "mixed agreement," should be weighed by the
responsible government attorney in the light of the probable
advantages and disadvantages of the plea disposition proposed in
the particular case. Particular care should be exercised in
considering whether to enter into a plea agreement pursuant to
which the defendant will enter a nolo contendere plea. As discussed
in USAM 9-27.500 and
USAM 9-16.000, there are serious
objections to such pleas and they should be opposed unless the
responsible Assistant Attorney General concluded that the
circumstances are so unusual that acceptance of such a plea would
be in the public interest.
[updated September 2000]
[cited in
USAM 9-16.300;
USAM 9-16.320;
USAM 9-27.300;
USAM 9-28.1300]
9-27.420
Plea AgreementsConsiderations to be Weighed
- In determining whether it would be appropriate to
enter into a plea agreement, the attorney for the government should
weigh all relevant considerations, including:
- The defendant's willingness to cooperate in the
investigation or prosecution of others;
- The defendant's history with respect to criminal activity;
- The nature and seriousness of the offense or offenses charged;
- The defendant's remorse or contrition and his/her willingness
to assume responsibility for his/her conduct;
- The desirability of prompt and certain disposition of the
case;
- The likelihood of obtaining a conviction at trial;
- The probable effect on witnesses;
- The probable sentence or other consequences if the defendant
is convicted;
- The public interest in having the case tried rather than
disposed of by a guilty plea;
- The expense of trial and appeal;
- The need to avoid delay in the disposition of other pending
cases; and
- The effect upon the victim's right to restitution.
- Comment. USAM 9-27.420 sets
forth some of the appropriate considerations to be weighed by the
attorney for the government in deciding whether to enter into a
plea agreement with a defendant pursuant to the provisions of Rule
11(e), Fed. R. Crim. P. The provision is not intended to suggest
the desirability or lack of desirability of a plea agreement in any
particular case or to be construed as a reflection on the merits of
any plea agreement that actually may be reached; its purpose is
solely to assist attorneys for the government in exercising their
judgement as to whether some sort of plea agreement would be
appropriate in a particular case. Government attorneys should
consult the investigating agency involved and the victim, if
appropriate or required by law, in any case in which it would be
helpful to have their views concerning the relevance of particular
factors or the weight they deserve.
- Defendant's Cooperation.
The defendant's
willingness to provide timely and useful cooperation as part of
his/her plea agreement should be given serious consideration. The
weight it deserves will vary, of course, depending on the nature
and value of the cooperation offered and whether the same benefit
can be obtained without having to make the charge or sentence
concession that would be involved in a plea agreement. In many
situations, for example, all necessary cooperation in the form of
testimony can be obtained through a compulsion order under 18
U.S.C.§§ 6001-6003. In such cases, that approach
should be attempted unless, under the circumstances, it would
seriously interfere with securing the person's conviction. If the
defendant's cooperation is sufficiently substantial to justify the
filing of a 5K1.1 Motion for a downward departure, the procedures
set out in USAM 9-27.400(B)
shall be followed.
- Defendant's Criminal History.
One of the principal
arguments against the practice of plea bargaining is that it
results in leniency that reduces the deterrent impact of the law
and leads to recidivism on the part of some offenders. Although
this concern is probably most relevant in non-federal jurisdictions
that must dispose of large volumes of routine cases with inadequate
resources, nevertheless it should be kept in mind by Federal
prosecutors, especially when dealing with repeat offenders or
"career criminals." Particular care should be taken in the case of
a defendant with a prior criminal record to ensure that society's
need for protection is not sacrificed in the process of arriving at
a plea disposition. In this connection, it is proper for the
government attorney to consider not only the defendant's past, but
also facts of other criminal involvement not resulting in
conviction. By the same token, of course, it is also proper to
consider a defendant's absence of past criminal involvement and
his/her past cooperation with law enforcement officials. Note that
18 U.S.C.§ 924(e), as well as Sentencing Guidelines 4B1.1
and 4B1.4 address "career criminals" and "armed career criminals."
18 U.S.C. § 3559(c)the so-called "three strikes"
statuteaddresses serious violent recidivist offenders. The
application of these provisions to a particular case may affect the
plea negotiation posture of the parties.
- Nature and Seriousness of Offense Charged.
Important
considerations in determining whether to enter into a plea
agreement may be the nature and seriousness of the offense or
offenses charged. In weighing those factors, the attorney for the
government should bear in mind the interests sought to be protected
by the statute defining the offense (e.g., the national defense,
constitutional rights, the governmental process, personal safety,
public welfare, or property), as well as nature and degree of harm
caused or threatened to those interests and any attendant
circumstances that aggravate or mitigate the seriousness of the
offense in the particular case.
- Defendant's Attitude.
A defendant may demonstrate
apparently genuine remorse or contrition, and a willingness to take
responsibility for his/her criminal conduct by, for example,
efforts to compensate the victim for injury or loss, or otherwise
to ameliorate the consequences of his/her acts. These are factors
that bear upon the likelihood of his/her repetition of the conduct
involved and that may properly be considered in deciding whether a
plea agreement would be appropriate. Sentencing Guideline 3E1.1
allows for a downward adjustment upon acceptance of responsibility
by the defendant. It is permissible for a prosecutor to enter a
plea agreement which approves such an adjustment if the defendant
otherwise meets the requirements of the section.
- It is particularly important that the defendant not be permitted
to enter a guilty plea under circumstances that will allow him/her
later to proclaim lack of culpability or even complete innocence.
Such consequences can be avoided only if the court and the public
are adequately informed of the nature and scope of the illegal
activity and of the defendant's complicity and culpability. To this
end, the attorney for the government is strongly encouraged to
enter into a plea agreement only with the defendant's assurance
that he/she will admit, the facts of the offense and of his/her
culpable participation therein. A plea agreement may be entered
into in the absence of such an assurance, but only if the defendant
is willing to accept without contest a statement by the government
in open court of the facts it could prove to demonstrate his/her
guilt beyond a reasonable doubt. Except as provided in
USAM 9-27.440, the attorney for the
government should not enter into a plea agreement with a defendant
who admits his/her guilt but disputes an essential element of the
government's case.
- Prompt Disposition.
In assessing the value of prompt
disposition of a criminal case, the attorney for the government
should consider the timing of a proffered plea. A plea offer by a
defendant on the eve of trial after the case has been fully
prepared is hardly as advantageous from the standpoint of reducing
public expense as one offered months or weeks earlier. In addition,
a last minute plea adds to the difficulty of scheduling cases
efficiently and may even result in wasting the prosecutorial and
Judicial time reserved for the aborted trial. For these reasons,
governmental attorneys should make clear to defense counsel at an
early stage in the proceedings that, if there are to be any plea
discussions, they must be concluded prior to a certain date well in
advance of the trial date. See USSG § 3E1.1(b)(1).
However, avoidance of unnecessary trial preparation and scheduling
disruptions are not the only benefits to be gained from prompt
disposition of a case by means of a guilty plea. Such a disposition
also saves the government and the court the time and expense of
trial and appeal. In addition, a plea agreement facilitates prompt
imposition of sentence, thereby promoting the overall goals of the
criminal justice system. Thus, occasionally it may be appropriate
to enter into a plea agreement even after the usual time for making
such agreements has passed.
- Likelihood of Conviction.
The trial of a criminal case
inevitably involves risks and uncertainties, both for the
prosecution and for the defense. Many factors, not all of which can
be anticipated, can affect the outcome. To the extent that these
factors can be identified, they should be considered in deciding
whether to accept a plea or go to trial. In this connection, the
prosecutor should weigh the strength of the government's case
relative to the anticipated defense case, bearing in mind legal and
evidentiary problems that might be expected, as well as the
importance of the credibility of witnesses. However, although it is
proper to consider factors bearing upon the likelihood of
conviction in deciding whether to enter into a plea agreement, it
obviously is improper for the prosecutor to attempt to dispose of
a case by means of a plea agreement if he/she is not satisfied that
the legal standards for guilt are met.
- Effect on Witnesses.
Attorneys for the government
should bear in mind that it is often burdensome for witnesses to
appear at trial and that sometimes to do so may cause them serious
embarrassment or even place them in jeopardy of physical or
economic retaliation. The possibility of such adverse consequences
to witnesses should not be overlooked in determining whether to go
to trial or attempt to reach a plea agreement. Another possibility
that may have to be considered is revealing the identity of
informants. When an informant testifies at trial, his/her identity
and relationship to the government become matters of public record.
As a result, in addition to possible adverse consequences to the
informant, there is a strong likelihood that the informant's
usefulness in other investigations will be seriously diminished or
destroyed. These are considerations that should be discussed with
the investigating agency involved, as well as with any other
agencies known to have an interest in using the informant in their
investigations.
- Probable Sentence.
In determining whether to enter into
a plea agreement, the attorney for the government may properly
consider the probable outcome of the prosecution in terms of the
sentence or other consequences for the defendant in the event that
a plea agreement is reached. If the proposed agreement is a
"sentence agreement" or a "mixed agreement," the prosecutor should
realize that the position he/she agrees to take with respect to
sentencing may have a significant effect on the sentence that is
actually imposed. If the proposed agreement is a "charge
agreement," the prosecutor should bear in mind the extent to which
a plea to fewer or lesser offenses may reduce the sentence that
otherwise could be imposed. In either event, it is important that
the attorney for the government be aware of the need to preserve
the basis for an appropriate sentence under all the circumstances
of the case. Thorough knowledge of the Sentencing Guidelines, any
applicable statutory minim um sentences, and any applicable
sentence enhancements is clearly necessary to allow the prosecutor
to accurately and adequately evaluate the effect of any plea
agreement.
- Trial Rather Than Plea.
There may be situations in
which the public interest might better be served by having a case
tried rather than by having it disposed of by means of a guilty
plea. These include situations in which it is particularly
important to permit a clear public understanding that "justice is
done" through exposing the exact nature of the defendant's
wrongdoing at trial, or in which a plea agreement might be
misconstrued to the detriment of public confidence in the criminal
justice system. For this reason, the prosecutor should be careful
not to place undue emphasis on factors which favor disposition of
a case pursuant to a plea agreement.
- Expense of Trial and Appeal.
In assessing the expense
of trial and appeal that would be saved by a plea disposition, the
attorney for the government should consider not only such monetary
costs as juror and witness fees, but also the time spent by judges,
prosecutors, and law enforcement personnel who may be needed to
testify or provide other assistance at trial. In this connection,
the prosecutor should bear in mind the complexity of the case, the
number of trial days and witnesses required, and any extraordinary
expenses that might be incurred such as the cost of sequestering
the jury.
- Prompt Disposition of Other Cases.
A plea disposition
in one case may facilitate the prompt disposition of other cases,
including cases in which prosecution might otherwise be declined.
This may occur simply because prosecutorial, judicial, or defense
resources will become available for use in other cases, or because
a plea by one of several defendants may have a "domino effect,"
leading to pleas by other defendants. In weighing the importance of
these possible consequences, the attorney for the government should
consider the state of the criminal docket and the speedy trial
requirements in the district, the desirability of handling a larger
volume of criminal cases, and the work loads of prosecutors,
judges, and defense attorneys in the district.
[cited in
USAM 9-28.1300]
9-27.430
Selecting Plea Agreement Charges
- If a prosecution is to be concluded pursuant to a
plea agreement, the defendant should be required to plead to a
charge or charges:
- That is the most serious readily provable charge
consistent with the nature and extent of his/her criminal conduct;
- That has an adequate factual basis;
- That makes likely the imposition of an appropriate sentence
and order of restitution, if appropriate, under all the
circumstances of the case; and
- That does not adversely affect the investigation or
prosecution of others.
- Comment. USAM 9-27.430 sets
forth the considerations that should be taken into account in
selecting the charge or charges to which a defendant should be
required to plead guilty once it has been decided to dispose of the
case pursuant to a plea agreement. The considerations are
essentially the same as those governing the selection of charges to
be included in the original indictment or information. See
USAM 9-27.300.
- Relationship to Criminal Conduct.
The charge or
charges to which a defendant pleads guilty should be consistent
with the defendant's criminal conduct, both in nature and in scope.
Except in unusual circumstances, this charge will be the most
serious one, as defined in USAM
9-27.300. This principle governs the number of counts to which
a plea should be required in cases involving different offenses, or
in cases involving a series of familiar offenses. Therefore the
prosecutor must be familiar with the Sentencing Guideline rules
applicable to grouping offenses (Guideline 3D) and to relevant
conduct (USSG § 1B1.3) among others. In regard to the
seriousness of the offense, the guilty plea should assure that the
public record of conviction provides an adequate indication of the
defendant's conduct. With respect to the number of counts, the
prosecutor should take care to assure that no impression is given
that multiple offenses are li kely to result in no greater a
potential penalty than is a single offense. The requirement that a
defendant plead to a charge, that is consistent with the nature and
extent of his/her criminal conduct is not inflexible. Although
cooperation is usually acknowledged through a Sentencing Guideline
5K1.1 filing, there may be situations involving cooperating
defendants in which considerations such as those discussed in
USAM 9-27.600, take precedence. Such
situations should be approached cautiously, however. Unless the
government has strong corroboration for the cooperating defendant's
testimony, his/her credibility may be subject to successful
impeachment if he/she is permitted to plead to an offense that
appears unrelated in seriousness or scope to the charges against
the defendants on trial. It is also doubly important in such
situations for the prosecutor to ensure that the public record of
the plea demonstrates, the full extent of the defendant's i
nvolvement in the criminal activity, giving rise to the
prosecution.
- Factual Basis.
The attorney for the government should
also bear in mind the legal requirement that there be a factual
basis for the charge or charges to which a guilty plea is entered.
This requirement is intended to assure against conviction after a
guilty plea of. a person who is not in fact guilty. Moreover, under
Rule 11(f) of the Fed. R. Crim. P., a court may not enter a
judgment upon a guilty plea "without making such inquiry as shall
satisfy it that, there is a factual basis for the plea." For this
reason, it is essential that the charge or charges selected as the
subject of a plea agreement be such as could be prosecuted
independently of the plea under these principles. However, as
noted, in cases in which Alford or nolo contendere pleas are
tendered, the attorney for the government may wish to make a
stronger factual showing. In such cases there may remain some doubt
as to the defendant's guilt even after the entry of his/her plea.
Consequently, in order to a void such a misleading impression, the
government should ask leave of the court to make a proffer of the
facts available to it that show the defendant's guilt beyond a
reasonable doubt.
In addition, the Department's policy is only to stipulate to facts
that accurately represent the defendant's conduct. If a prosecutor
wishes to support a departure from the guidelines, he or she should
candidly do so and not stipulate to facts that are untrue.
Stipulations to untrue facts are unethical. If a prosecutor has
insufficient facts to contest a defendant's effort to seek a
downward departure or to claim an adjustment, the prosecutor can
say so. If the presentence report states facts that are
inconsistent with a stipulation in which a prosecutor has joined,
the prosecutor should object to the report or add a statement
explaining the prosecutor's understanding of the facts or the
reason for the stipulation.
Recounting the true nature of the defendant's involvement in a
case will not always lead to a higher sentence. Where a defendant
agrees to cooperate with the government by providing information
concerning unlawful activities of others and the government agrees
that self-incriminating information so provided will not be used
against the defendant, Sentencing Guideline 1B1.8 provides that the
information shall not be used in determining the applicable
guideline range, except to the extent provided in the agreement.
The existence of an agreement not to use information should be
clearly reflected in the case file, the applicability of Guideline
1B1.8 should be documented, and the incriminating information must
be disclosed to the court or the probation officer, even though it
may not be used in determining a guideline sentence. Note that such
information may still be used by the court in determining whether
to depart from the guidelines and the extent of the departure.
See US SG § 1B1.8.
- Basis for Sentencing.
In order to guard against
inappropriate restriction of the court's sentencing options, the
plea agreement should provide adequate scope for sentencing under
all the circumstances of the case. To the extent that the plea
agreement requires the government to take a position with respect
to the sentence to be imposed, there should be little danger since
the court will not be bound by the government's position. When a
"charge agreement" is involved, however, the court will be limited
to imposing the maxim term authorized by statue as well as the
Sentencing Guideline range for the offense, to which the guilty
plea is entered. Thus, as noted in
USAM 9-27.320 above the prosecutor
should take care to avoid a "charge agreement" that would unduly
restrict the court's sentencing authority. In this connection, as
in the initial selection of charges, the prosecutor should take
into account the purposes of sentencing, the penalti es provided in
the applicable statutes (including mandatory minimum penalties),
the gravity of the offense, any aggravating or mitigating factors,
and any post conviction consequences to which the defendant may be
subject. In addition, if restitution is appropriate under the
circumstances of the case, the plea agreement should specify the
amount of restitution. See 18 U.S.C. § 3663 et
seq.; 18 U.S.C. §§ 2248, 2259, 2264 and 2327;
United States v. Arnold, 947 F.2d 1236, 1237-38 (5th Cir.
1991); and USAM 9-16.320.
- Effect on Other Cases.
In a multiple-defendant case,
care must be taken to ensure that the disposition of the charges
against one defendant does not adversely affect the investigation
or prosecution of co-defendants. Among the possible adverse
consequences to be avoided are the negative jury appeal that may
result when relatively less culpable defendants are tried in the
absence of a more culpable defendant or when a principal
prosecution witness appears to be equally culpable as the
defendants but has been permitted to plead to a significantly less
serious offense; the possibility that one defendant's absence from
the case will render useful evidence inadmissible at the trial of
co-defendants; and the giving of questionable exculpatory testimony
on behalf of the other defendants by the defendant who has pled
guilty.
| 9-27.440
Plea Agreements When Defendant Denies Guilt
- The attorney for the government should not, except with the
approval of the Assistant Attorney General with supervisory responsibility
over the subject matter, enter into a plea agreement if the defendant
maintains his/her innocence with respect to the charge or charges to which
he/she offers to plead guilty. In a case in which the defendant tenders a
plea of guilty but denies committing the offense to which he/she offers to
plead guilty, the attorney for the government should make an offer of proof
of all facts known to the government to support the conclusion that the
defendant is in fact guilty. See also USAM
9-16.015, which discusses the approval requirement.
- Comment. USAM 9-27.440
concerns plea agreements involving "Alford" pleasguilty pleas
entered by defendants who nevertheless claim to be innocent. In
North Carolina v. Alford, 400 U.S. 25 (1970), the Supreme
Court held that the Constitution does not prohibit a court from
accepting a guilty plea from a defendant who simultaneously
maintains his/her innocence, so long as the plea is entered
voluntarily and intelligently and there is a strong factual basis
for it. The Court reasoned that there is no material difference
between a plea of nolo contendere, where the defendant does not
expressly admit his/her guilt, and a plea of guilty by a defendant
who affirmatively denies his/her guilt.
- Despite the constitutional validity of Alford pleas, such pleas
should be avoided except in the most unusual circumstances, even if
no plea agreement is involved and the plea would cover all pending
charges. Such pleas are particularly undesirable when entered as
part of an agreement with the government. Involvement by attorneys
for the government in the inducement of guilty pleas by defendants
who protest their innocence may create an appearance of
prosecutorial overreaching. As one court put it, "the public might
well not understand or accept the fact that a defendant who denied
his guilt was nonetheless placed in a position of pleading guilty
and going to jail." See United States v. Bednarski,
445 F.2d 364, 366 (1st Cir. 1971). Consequently, it is preferable
to have a jury resolve the factual and legal dispute between the
government and the defendant, rather than have government attorneys
encourage defendants to plead guilty under circumstances that the
public might regard as questionable or unfair. For this reason,
government attorneys should not enter into Alford plea agreements,
without the approval of the responsible Assistant Attorney General.
Apart from refusing to enter into a plea agreement, however, the
degree to which the Department can express its opposition to Alford
pleas may be limited. Although a court may accept a proffered plea
of nolo contendere "only after due consideration of the views of
the parties and the interest of the public in the effective
administration of justice" (Rule 11 (b), Fed. R. Crim. P.), at
least one court has concluded that it is an abuse of discretion to
refuse to accept a guilty plea "solely because the defendant does
not admit the alleged facts of the crime." United States v.
Gaskins, 485 F.2d 1046, 1048 (D.C. Cir. 1973); see
United States v. Bednarski, supra; United States
v. Boscoe, 518 F.2d 95 (1st Cir. 1975). Nevertheless,
government attorneys can and should discourage Alford pleas by
refusing to agree to terminate prosecutions where an Alford plea is
proffered to fewer than all of the charges pending. As is the case
with guilty pleas generally, if such a plea to fewer than all the
charges is tendered and accepted over the government's objection,
the attorney for the government should proceed to trial on any
remaining charges not barred on double jeopardy grounds unless the
United States Attorney or in cases handled by Departmental
attorneys, the responsible Assistant Attorney General, approves
dismissal of those charges.
- Government attorneys should also take full advantage of the
opportunity afforded by Rule 11(f) of the Fed. R. Crim. P. in an
Alford case to thwart the defendant's efforts to project a public
image of innocence. Under Rule 11(f) of the Fed. R. Crim. P. the
court must be satisfied that there is "a factual basis" for a
guilty plea. However, the Rule does not require that the factual
basis for the plea be provided only by the defendant. See
United States v. Navedo, 516 F.2d 29 (2d Cir. 1975);
Irizarry v. United States, 508 F.2d 960 (2d Cir. 1974);
United States v. Davis, 516 F.2d 574 (7th Cir. 1975).
Accordingly, attorneys for the government in Alford cases should
endeavor to establish as strong a factual basis for the plea as
possible not only to satisfy the requirement of Rule 11(f) Fed. R.
Crim. P., but also to minimize the adverse effects of Alford pleas
on public perceptions of the administration of justice.
[updated September 2006]
[cited in
USAM 6-4.330;
USAM 9-28.1300]
9-27.450
Records of Plea Agreements
- All negotiated plea agreements to felonies or to
misdemeanors negotiated from felonies shall be in writing and filed
with the court.
- Comment. USAM 9-27.450 is
intended to facilitate compliance with Rule 11 of the Federal Rules
of Criminal Procedure and to provide a safeguard against
misunderstandings that might arise concerning the terms of a plea
agreement. Rule 11(e) (2), Fed. R. Crim. P., requires that a plea
agreement be disclosed in open court (except upon a showing of good
cause in which case disclosure may be made in camera), while Rule
11(e)(3) Fed. R. Crim. P. requires that the disposition provided
for in the agreement be embodied in the judgment and sentence.
Compliance with these requirements will be facilitated if the
agreement has been reduced to writing in advance, and the defendant
will be precluded from successfully contesting the terms of the
agreement at the time he/she pleads guilty, or at the time of
sentencing, or at a later date. Any time a defendant enters into a
negotiated plea, that fact and the conditions of the agreement
should also be maintained i n the office case file. Written
agreements will facilitate efforts by the Department or the
Sentencing Commission to monitor compliance by prosecutors with
Department policies and the guidelines. Documentation may include
a copy of the court transcript at the time the plea is taken in
open court.
- There shall be within each office a formal system for approval
of negotiated pleas. The approval authority shall be vested in at
least a supervisory criminal Assistant United States Attorney, or
a supervisory attorney of a litigating division in the Department
of Justice, who will have the responsibility of assessing the
appropriateness of the plea agreement under the policies of the
Department of Justice pertaining to pleas. Where certain
predictable fact situations arise with great frequency and are
given identical treatment, the approval requirement may be met by
a written instruction from the appropriate supervisor which
describes with particularity the standard plea procedure to be
followed, so long as that procedure is otherwise within
Departmental guidelines. An example would be a border district
which routinely deals with a high volume of illegal alien cases
daily.
- The plea approval process will be part of the office evaluation
procedure.
- The United States Attorney in each district, or a supervisory
representative, should, if feasible, meet regularly with a
representative of the district's Probation Office for the purpose
of discussing guideline cases.
| 9-27.500
Offers to Plead Nolo ContendereOpposition Except in Unusual
Circumstances
- The attorney for the government should oppose the
acceptance of a plea of nolo contendere unless the Assistant Attorney
General with supervisory responsibility over the subject matter concludes
that the circumstances of the case are so unusual that acceptance of such a
plea would be in the public interest. See USAM
9-16.010, which discusses the approval requirement.
- Comment. Rule 11(b) of the Federal Rules of Criminal
Procedure, requires the court to consider "the views of the parties
and the interest of the public in the effective administration of
justice" before it accepts a plea of nolo contendere. Thus it is
clear that a criminal defendant has no absolute right to enter a
nolo contendere plea. The Department has long attempted to
discourage the disposition of criminal cases by means of nolo
pleas. The basic objections to nolo pleas were expressed by
Attorney General Herbert Brownell, Jr. in a Departmental directive
in 1953.
One of the factors which has tended to breed
contempt for Federal law enforcement in recent times has been the
practice of permitting as a matter of course in many criminal
indictments the plea of nolo contendere. While it may serve a
legitimate purpose in a few extraordinary situations and where
civil litigation is also pending, I can see no justification for it
as an everyday practice, particularly where it is used to avoid
certain indirect consequences of pleading guilty, such as loss of
license or sentencing as a multiple offender. Uncontrolled use of
the plea has led to shockingly low sentences and insignificant
fines which are not deterrent to crime. As a practical matter it
accomplished little that is useful even where the Government has
civil litigation pending. Moreover, a person permitted to plead
nolo contendere admits his guilt for the purpose of imposing
punishment for his acts and yet, for all other purposes, and as far
as the public is concerned, persists in th is denial of wrongdoing.
It is no wonder that the public regards consent to such a plea by
the Government as an admission that it has only a technical case at
most and that the whole proceeding was just a
fiasco. - For these reasons, government attorneys
have been instructed for many years not to consent to nolo pleas
except in the most unusual circumstances, and to do so then only
with Departmental approval. Federal prosecutors should oppose the
acceptance of a nolo plea, unless the responsible Assistant
Attorney General concludes that the circumstances are so unusual
that acceptance of the plea would be in the public
interest.
[updated September 2006]
[cited in
USAM 6-2.000;
USAM 6-4.320;
USAM 9-28.1300]
9-27.520
Offers to Plead Nolo ContendereOffer of Proof
- In any case in which a defendant seeks to enter a
plea of nolo contendere, the attorney for the government should
make an offer of proof of the facts known to the government to
support the conclusion that the defendant has in fact committed the
offense charged. See also USAM
9-16.010.
- Comment. If a defendant seeks to avoid admitting guilt by
offering to plead nolo contendere, the attorney for the government
should make an offer of proof of the facts known to the government
to support the conclusion that the defendant has in fact committed
the offense charged. This should be done even in the rare case in
which the government does not oppose the entry of a nolo plea. In
addition, as is the case with respect to guilty pleas, the attorney
for the government should urge the court to require the defendant
to admit publicly the facts underlying the criminal charges. These
precautions should minimize the effectiveness of any subsequent
efforts by the defendant to portray himself/herself as technically
liable perhaps, but not seriously culpable.
| 9-27.530
Argument in Opposition of Nolo Contendere Plea
- If a plea of nolo contendere is offered over the
government's objection, the attorney for the government should
state for the record why acceptance of the plea would not be in the
public interest; and should oppose the dismissal of any charges to
which the defendant does not plead nolo contendere.
- Comment. When a plea of nolo contendere is offered over the
government's objection, the prosecutor should take full advantage
of Rule 11(b), Federal Rules of Criminal Procedure, to state for
the record why acceptance of the plea would not be in the public
interest. In addition to reciting the facts that could be proved to
show the defendant's guilt, the prosecutor should bring to the
court's attention whatever arguments exist for rejecting the plea.
At the very least, such a forceful presentation should make it
clear to the public that the government is unwilling to condone the
entry of a special plea that may help the defendant avoid
legitimate consequences of his/her guilt. If the nolo plea is
offered to fewer than all charges, the prosecutor should also
oppose the dismissal of the remaining charges.
[cited in
USAM 6-4.320]
9-27.600
Entering into Non-prosecution Agreements in Return for
CooperationGenerally
- Except as hereafter provided, the attorney for the
government may, with supervisory approval, enter into a
non-prosecution agreement in exchange for a person's cooperation
when, in his/her judgment, the person's timely cooperation appears
to be necessary to the public interest and other means of obtaining
the desired cooperation are unavailable or would not be effective.
- Comment.
- In many cases, it may be important to the success of an
investigation or prosecution to obtain the testimonial or other
cooperation of a person who is himself/herself implicated in the
criminal conduct being investigated or prosecuted. However, because
of his/her involvement, the person may refuse to cooperate on the
basis of his/her Fifth Amendment privilege against compulsory
self-incrimination. In this situation, there are several possible
approaches the prosecutor can take to render the privilege
inapplicable or to induce its waiver.
- First, if time permits, the person may be charged,
tried, and convicted before his/her cooperation is sought in the
investigation or prosecution of others. Having already been
convicted himself/herself, the person ordinarily will no longer
have a valid privilege to refuse to testify and will have a strong
incentive to reveal the truth in order to induce the sentencing
judge to impose a lesser sentence than that which otherwise might
be found appropriate.
- Second, the person may be willing to cooperate if the charges
or potential charge against him/her are reduced in number or degree
in return for his/her cooperation and his/her entry of a guilty
plea to the remaining charges. An agreement to file a motion
pursuant to Sentencing Guideline 5K1.1 or Rule 35 of the Federal
Rules of Criminal Procedure after the defendant gives full and
complete cooperation is the preferred method for securing such
cooperation. Usually such a concession by the government will be
all that is necessary, or warranted, to secure the cooperation
sought. Since it is certainly desirable as a matter of policy that
an offender be required to incur at least some liability for
his/her criminal conduct, government attorneys should attempt to
secure this result in all appropriate cases, following the
principles set forth in USAM
9-27.430 to the extent practicable.
- The third method for securing the cooperation of a potential
defendant is by means of a court order under 18 U.S.C.
§§ 6001-6003. Those statutory provisions govern the
conditions under which uncooperative witnesses may be compelled to
testify or provide information notwithstanding their invocation of
the privilege against compulsory self incrimination. In brief,
under the so-called "use immunity" provisions of those statutes,
the court may order the person to testify or provide other
information, but neither his/her testimony nor the information
he/she provides may be used against him/her, directly or
indirectly, in any criminal case except a prosecution for perjury
or other failure to comply with the order. Ordinarily, these "use
immunity" provisions should be relied on in cases in which
attorneys for the government need to obtain sworn testimony or the
production of information before a grand jury or at trial, and in
which there is reason to believe that the person will refuse to
testify or provide the information on the basis of his/her
privilege against compulsory self-incrimination. See
USAM 9-23.000. Offers of immunity
and immunity agreements should be in writing. Consideration should
be given to documenting the evidence available prior to the
immunity offer.
- Finally, there may be cases in which it is impossible or
impractical to employ the methods described above to secure the
necessary information or other assistance, and in which the person
is willing to cooperate only in return for an agreement that he/she
will not be prosecuted at all for what he/she has done. The
provisions set forth hereafter describe the conditions that should
be met before such an agreement is made, as well as the procedures
recommended for such cases.
It is important to note that these provisions apply only if the
case involves an agreement with a person who might otherwise be
prosecuted. If the person reasonably is viewed only as a potential
witness rather than a potential defendant, and the person is
willing to cooperate, there is no need to consult these provisions.
USAM 9-27.600 describes three
circumstances that should exist before government attorneys enter
into non-prosecution agreements in return for cooperation: the
unavailability or ineffectiveness of other means of obtaining the
desired cooperation; the apparent necessity of the cooperation to
the public interest; and the approval of such a course of action by
an appropriate supervisory official
- Unavailability or Ineffectiveness of Other Means.
As
indicated above, non-prosecution agreements are only one of several
methods by which the prosecutor can obtain the cooperation of a
person whose criminal involvement makes him/her a potential subject
of prosecution. Each of the other methodsseeking cooperation
after trial and conviction, bargaining for cooperation as part of
a plea agreement, and compelling cooperation under a "use immunity"
orderinvolves prosecuting the person or at least leaving open the
possibility of prosecuting him/her on the basis of independently
obtained evidence. Since these outcomes are clearly preferable to
permitting an offender to avoid any liability for his/her conduct,
the possible use of an alternative to a non-prosecution agreement
should be given serious consideration in the first instance.
Another reason for using an alternative to a non-prosecution
agreement to obtain cooperation concerns the practical advantage in
terms of the person's credibility if he/she testifies at trial. If
the person already has been convicted, either after trial or upon
a guilty plea, for participating in the events about which he/she
testifies, his/her testimony is apt to be far more credible than if
it appears to the trier of fact that he/she is getting off "scot
free." Similarly, if his/her testimony is compelled by a court
order, he/she cannot properly be portrayed by the defense as a
person who has made a "deal" with the government and whose
testimony is, therefore, suspect; his/her testimony will have been
forced from him/her, not bargained for.
In some cases, however, there may be no effective means of
obtaining the person's timely cooperation short of entering into a
non-prosecution agreement. The person may be unwilling to cooperate
fully in return for a reduction of charges, the delay involved in
bringing him/her to trial might prejudice the investigation or
prosecution in connection with which his/her cooperation is sought
and it may be impossible or impractical to rely on the statutory
provisions for compulsion of testimony or production of evidence.
One example of the latter situation is a case in which the
cooperation needed does not consist of testimony under oath or the
production of information before a grand jury or at trial. Other
examples are cases in which time is critical, or where use of the
procedures of 18 U.S.C. §-6003 would unreasonably
disrupt the presentation of evidence to the grand jury or the
expeditious development of an investigation, or where compliance
with the statute of limitat ions or the Speedy Trial Act precludes
timely application for a court order.
Only when it appears that the person's timely cooperation cannot
be obtained by other means, or cannot be obtained effectively,
should the attorney for the government consider entering into a
non-prosecution agreement.
- Public Interest.
If he/she concludes that a
non-prosecution agreement would be the only effective method for
obtaining cooperation, the attorney for the government should
consider whether, balancing the cost of foregoing prosecution
against the potential benefit of the person's cooperation, the
cooperation sought appears necessary to the public interest. This
"public interest" determination is one of the conditions precedent
to an application under 18 U.S.C. § 6003 for a court
order compelling testimony. Like a compulsion order, a
non-prosecution agreement limits the government's ability to
undertake a subsequent prosecution of the witness. Accordingly, the
same "public interest" test should be applied in this situation as
well. Some of the considerations that may be relevant to the
application of this test are set forth in
USAM 9-27.620.
- Supervisory Approval.
Finally, the prosecutor should
secure supervisory approval before entering into a non-prosecution
agreement. Prosecutors working under the direction of a United
States Attorney must seek the approval of the United States
Attorney or a supervisory Assistant United States Attorney.
Departmental attorneys not supervised by a United States Attorney
should obtain the approval of the appropriate Assistant Attorney
General or his/her designee, and should notify the United States
Attorney or Attorneys concerned. The requirement of approval by a
superior is designed to provide review by an attorney experienced
in such matters, and to ensure uniformity of policy and practice
with respect to such agreements. This section should be read in
conjunction with USAM 9-27.640,
concerning particular types of cases in which an Assistant Attorney
General or his/her designee must concur in or approve an agreement
not to prosecute in ret urn for cooperation.
| 9-27.620
Entering into Non-prosecution Agreements in Return for
CooperationConsiderations to be Weighed
- In determining whether, a person's cooperation may
be necessary to the public interest, the attorney for the
government, and those whose approval is necessary, should weigh all
relevant considerations, including:
- The importance of the investigation or prosecution to an
effective program of law enforcement;
- The value of the person's cooperation to the investigation or
prosecution; and
- The person's relative culpability in connection with the
offense or offenses being investigated or prosecuted and his/her
history with respect to criminal activity.
- Comment. This paragraph is intended to assist Federal
prosecutors, and those whose approval they must secure, in deciding
whether a person's cooperation appears to be necessary to the
public interest. The considerations listed here are not intended to
be all-inclusive or to require a particular decision in a
particular case. Rather they are meant to focus the
decision-maker's attention on factors that probably will be
controlling in the majority of cases.
- Importance of Case.
Since the primary function of
a Federal prosecutor is to enforce the criminal law, he/she should
not routinely or indiscriminately enter into non-prosecution
agreements, which are, in essence, agreements not to enforce the
law under particular conditions. Rather, he/she should reserve the
use of such agreements for cases in which the cooperation sought
concerns the commission of a serious offense or in which successful
prosecution is otherwise important in achieving effective
enforcement of the criminal laws. The relative importance or
unimportance of the contemplated case is therefore a significant
threshold consideration.
- Value of Cooperation.
An agreement not to prosecute in
return for a person's cooperation binds the government to the
extent that the person carries out his/her part of the bargain.
See Santobello v. New York 404 U.S. 257 (1971);
Wade v. United States, 112 S. Ct. 1840 (1992). Since such an
agreement forecloses enforcement of the criminal law against a
person who otherwise may be liable to prosecution, it should not be
entered into without a clear understanding of the nature of the
quid pro quo and a careful assessment of its probable value to the
government. In order to be in a position adequately to assess the
potential value of a person's cooperation, the prosecutor should
insist on an "offer of proof" or its equivalent from the person or
his/her attorney. The prosecutor can then weigh the offer in terms
of the investigation or prosecution in connection with which
cooperation is sought. In doing so, he/she should consider such
questions as whether the cooperation will in fact be forthcoming,
whether the testimony or other information provided will be
credible, whether it can be corroborated by other evidence, whether
it will materially assist the investigation or prosecution, and
whether substantially the same benefit can be obtained from someone
else without an agreement not to prosecute. After assessing all of
these factors, together with any others that may be relevant, the
prosecutor can judge the strength of his/her case with and without
the person's cooperation, and determine whether it may be in the
public interest to agree to forego prosecution under the
circumstances.
- Relative Culpability and Criminal History.
In
determining whether it may be necessary to the public interest to
agree to forego prosecution of a person who may have violated the
law in return for that person's cooperation, it is also important
to consider the degree of his/her apparent culpability relative to
others who are subjects of the investigation or prosecution as well
as his/her history of criminal involvement. Of course, ordinarily
it would not be in the public interest to forego prosecution of a
high-ranking member of a criminal enterprise in exchange for
his/her cooperation against one of his/her subordinates, nor would
the public interest be served by bargaining away the opportunity to
prosecute a person with a long history of serious criminal
involvement in order to obtain the conviction of someone else on
less serious charges. These are matters with regard to which the
attorney for the government may find it helpful to consult with the
investigating agenc y or with other prosecuting authorities who may
have an interest in the person or his/her associates.
It is also important to consider whether the person has a
background of cooperation with law enforcement officials, either as
a witness or an informant, and whether he/she has previously been
the subject of a compulsion order under 18 U.S.C.
§-6003 or has escaped prosecution by virtue of an
agreement not to prosecute. The information regarding compulsion
orders may be available by telephone from the Immunity Unit in the
Office of Enforcement Operations of the Criminal Division.
9-27.630
Entering into Non-prosecution Agreements in Return for
CooperationLimiting the Scope of Commitment
- In entering into a non-prosecution agreement, the attorney
for the government should, if practicable, explicitly limit the scope of the
government's commitment to:
- Non-prosecution based directly or indirectly on the
testimony or other information provided; or
- Non-prosecution within his/her district with respect to a
pending charge, or to a specific offense then known to have been
committed by the person.
- Comment. The attorney for the government should exercise
extreme caution to ensure that his/her non-prosecution agreement
does not confer "blanket" immunity on the witness. To this end,
he/she should, in the first instance, attempt to limit his/her
agreement to non-prosecution based on the testimony or information
provided. Such an "informal use immunity" agreement has two
advantages over an agreement not to prosecute the person in
connection with a particular transaction: first, it preserves the
prosecutor's option to prosecute on the basis of independently
obtained evidence if it later appears that the person's criminal
involvement was more serious than it originally appeared to be; and
second, it encourages the witness to be as forthright as possible
since the more he/she reveals the more protection he/she will have
against a future prosecution. To further encourage full disclosure
by the witness, it should be made clear in the agreement that the
government's forbearance from prosecution is conditioned upon the
witness's testimony or production of information being complete and
truthful, and that failure to testify truthfully may result in a
perjury prosecution.
Even if it is not practicable to obtain the desired cooperation
pursuant to an "informal use immunity" agreement, the attorney for
the government should attempt to limit the scope of the agreement
in terms of the testimony and transactions covered, bearing in mind
the possible effect of his/her agreement on prosecutions in other
districts.
It is important that non-prosecution agreements be drawn in
terms that will not bind other Federal prosecutors or agencies
without their consent. Thus, if practicable, the attorney for the
government should explicitly limit the scope of his/her agreement
to non-prosecution within his/her district. If such a limitation is
not practicable and it can reasonably be anticipated that the
agreement may affect prosecution of the person in other districts,
the attorney for the government contemplating such an agreement
shall communicate the relevant facts to the Assistant Attorney
General with supervisory responsibility for the subject matter.
United States Attorneys may not make agreements which prejudice
civil or tax liability without the express agreement of all
affected Divisions and/or agencies. See also 9-16.000 et seq. for
more information regarding plea agreements.
Finally, the attorney for the government should make it clear
that his/her agreement relates only to non-prosecution and that
he/she has no independent authority to promise that the witness
will be admitted into the Department's Witness Security program or
that the Marshal's Service will provide any benefits to the witness
in exchange for his/her cooperation. This does not mean, of course,
that the prosecutor should not cooperate in making arrangements
with the Marshal's Service necessary for the protection of the
witness in appropriate cases. The procedures to be followed in such
cases are set forth in USAM
9-21.000.
9-27.640
Agreements Requiring Assistant Attorney General Approval
- The attorney for the government should not enter
into a non-prosecution agreement in exchange for a person's
cooperation without first obtaining the approval of the Assistant
Attorney General with supervisory responsibility over the subject
matter, or his/her designee, when:
- Prior consultation or approval would be required by a
statute or by Departmental policy for a declination of prosecution
or dismissal of a charge with regard to which the agreement is to
be made; or
- The person is:
- A high-level Federal, state, or local official;
- An official or agent of a Federal investigative or law
enforcement agency; or
- A person who otherwise is, or is likely to become of major
public interest.
- Comment. USAM 9-27.640 sets
forth special cases that require approval of non-prosecution
agreements by the responsible Assistant Attorney General or his/her
designee. Subparagraph (1) covers cases in which existing statutory
provisions and departmental policies require that, with respect to
certain types of offenses, the Attorney General or an Assistant
Attorney General be consulted or give his/her approval before
prosecution is declined or charges are dismissed. For example, see
USAM 6-4.245 (tax
offenses); USAM 9-41.010
(bankruptcy frauds); USAM
9-90.020 (internal security offenses); (see
USAM 9-2.400 for a complete listing of
all prior approval and consultation requirements). An agreement not
to prosecute resembles a declination of prosecution or the
dismissal of a charge in that the end resu lt in each case is
similar: a person who has engaged in criminal activity is not
prosecuted or is not prosecuted fully for his/her offense.
Accordingly, attorneys for the government should obtain the
approval of the appropriate Assistant Attorney General, or his/her
designee, before agreeing not to prosecute in any case in which
consultation or approval would be required for a declination of
prosecution or dismissal of a charge.
Subparagraph (2) sets forth other situations in which the
attorney for the government should obtain the approval of an
Assistant Attorney General, or his/her designee, of a proposed
agreement not to prosecute in exchange for cooperation. Generally
speaking, the situations described will be cases of an exceptional
or extremely sensitive nature, or cases involving individuals or
matters of major public interest. In a case covered by this
provision that appears to be of an especially sensitive nature, the
Assistant Attorney General should, in turn, consider whether it
would be appropriate to notify the Attorney General or the Deputy
Attorney General.
9-27.641
Multi-District (Global) Agreement Requests
- No district or division shall make any agreement,
including any agreement not to prosecute, which purports to bind
any other district(s) or division without the express written
approval of the United States Attorney(s) in each affected district
and/or the Assistant Attorney General of the Criminal Division.
- The requesting district/division shall make known to each
affected district/division the following information:
- The specific crimes allegedly committed in the affected
district(s) as disclosed by the defendant. (No agreement should be
made as to any crime(s) not disclosed by the defendant.)
- Identification of victims of crimes committed by the defendant
in any affected district, insofar as possible.
- The proposed agreement to be made with the defendant and the
applicable Sentencing Guideline range.
- See USAM 16.030 for a
discussion of the requirement for consultation with investigative
agencies and victims regarding pleas.
[cited in
USAM 9-28.1000]
9-27.650
Records of Non-Prosecution Agreements
- In a case in which a non-prosecution agreement is
reached in return for a person's cooperation, the attorney for the
government should ensure that the case file contains a memorandum
or other written record setting forth the terms of the agreement.
The memorandum or record should be signed or initialed by the
person with whom the agreement is made or his/her attorney.
- Comment. The provisions of this section are intended to serve
two purposes. First, it is important to have a written record in
the event that questions arise concerning the nature or scope of
the agreement. Such questions are certain to arise during
cross-examination of the witness, particularly if the existence of
the agreement has been disclosed to defense counsel pursuant to the
requirements of Brady v. Maryland, 373 U.S. 83 (1963) and
Giglio v. United States, 405 U.S. 150 (1972). The exact
terms of the agreement may also become relevant if the government
attempts to prosecute the witness for some offense in the future.
Second, such a record will facilitate identification by government
attorneys (in the course of weighing future agreements not to
prosecute, plea agreements, pre-trial diversion, and other
discretionary actions) of persons whom the government has agreed
not to prosecute.
The principal requirements of the written record are that it be
sufficiently detailed that it leaves no doubt as to the obligations
of the parties to the agreement, and that it be signed or initialed
by the person with whom the agreement is made and his/her attorney,
or at least by one of them.
9-27.710
Participation in SentencingGenerally
- During the sentencing phase of a Federal criminal
case, the attorney for the government should assist the sentencing
court by:
- Attempting to ensure that the relevant facts are brought
to the court's attention fully and accurately; and
- Making sentencing recommendations in appropriate
cases.
- Comment. Sentencing in Federal criminal cases is primarily the
function and responsibility of the court. This does not mean,
however, that the prosecutor's responsibility in connection with a
criminal case ceases upon the return of a guilty verdict or the
entry of a guilty plea; to the contrary, the attorney for the
government has a continuing obligation to assist the court in its
determination of the sentence to be imposed. The prosecutor must be
familiar with the guidelines generally and with the specific
guideline provisions applicable to his or her case. In discharging
these duties, the attorney for the government should, as provided
in USAM 9-27.720 and
9-27.750, endeavor to ensure the
accuracy and completeness of the information upon which the
sentencing decisions will be based. In addition, as provided in
USAM 9-27.730, in appropriate cases
the prosecutor should offer recommendations with respect to the
sentence to be imposed.
| 9-27.720
Establishing Factual Basis for Sentence
- In order to ensure that the relevant facts are
brought to the attention of the sentencing court fully and
accurately, the attorney for the government should:
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