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9-2.000
AUTHORITY OF THE UNITED STATES ATTORNEY IN CRIMINAL DIVISION MATTERS/PRIOR APPROVALS

9-2.001 Introduction
9-2.010 Investigations
9-2.020 Declining Prosecution
9-2.021 Armed Forces Enlistment as an Alternative to Federal Prosecution
9-2.022 Pretrial Diversion as an Alternative to Federal Prosecution
9-2.030 Authorizing Prosecution
9-2.031 Dual and Successive Prosecution Policy ("Petite Policy")
9-2.032 Notification to the Criminal Division of Certain Prosecutions of Attorneys
9-2.040 Dismissal of Complaints
9-2.041 Cancellation of Unexecuted Arrest Warrants
9-2.050 Dismissal of Indictments and Informations
9-2.060 Appeals, Mandamus, Stays, Rehearing, Certiorari
9-2.100 Limitations on United States Attorneys
9-2.101 American Bar Association Standards for Criminal Justice
9-2.110 Statutory Limitations—Generally
9-2.111 Statutory Limitations—Declinations
9-2.112 Statutory Limitations—Prosecutions
9-2.120 Policy Limitations—Generally
9-2.131 Matters Assumed by Criminal Division or Higher Authority
9-2.136 Notification, Consultation, and Approval Requirements for International Terrorism Matters
9-2.137 Notification Requirements in Domestic Terrorism Matters
9-2.138 Notification, Consultation, and Approval Requirements for Weapons of Mass Destruction (WMD) Matters
9-2.139 Notification, Consultation, and Approval Requirements for Torture, War Crimes, Genocide, and Child Soldiers Matters
9-2.145 Dismissals
9-2.154 Legislative Proposals by United States Attorneys
9-2.155 Sensitive Matters
9-2.159 Refusal of Government Departments and Agencies to Produce Evidence
9-2.170 Decision to Appeal and to File Petitions in Appellate Courts
9-2.173 Arrest of Foreign Nationals
9-2.180 Strike Forces
9-2.181 Organized Crime Strike Force Unit Duties
9-2.182 Organized Crime Strike Force Unit Strategic Plans
9-2.183 Organized Crime Strike Force Unit Personnel
9-2.200 Release of Information—Press Information and Privacy
9-2.400 Prior Approvals Chart

9-2.001

Introduction

The United States Attorney, within his/her district, has plenary authority with regard to federal criminal matters. This authority is exercised under the supervision and direction of the Attorney General and his/her delegates.

The statutory duty to prosecute for all offenses against the United States (28 U.S.C. § 547) carries with it the authority necessary to perform this duty. The USA is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority.

The authority, discretionary power, and responsibilities of the United States Attorney with relation to criminal matters encompass without limitation by enumeration the following:

  1. Investigating suspected or alleged offenses against the United States, see USAM 9-2.010;

  2. Causing investigations to be conducted by the appropriate federal law enforcement agencies, see USAM 9-2.010;

  3. Declining prosecution, see USAM 9-2.020;

  4. Authorizing prosecution, see USAM 9-2.030;

  5. Determining the manner of prosecuting and deciding trial related questions;

  6. Recommending whether to appeal or not to appeal from an adverse ruling or decision, see USAM 9-2.170;

  7. Dismissing prosecutions, see USAM 9-2.050; and

  8. Handling civil matters related thereto which are under the supervision of the Criminal Division.

9-2.010

Investigations

The United States Attorney, as the chief federal law enforcement officer in his district, is authorized to request the appropriate federal investigative agency to investigate alleged or suspected violations of federal law. The federal investigators operate under the hierarchical supervision of their bureau or agency and consequently are not ordinarily subject to direct supervision by the United States Attorney. If the United States Attorney requests an investigation and does not receive a timely preliminary report, he may wish to consider requesting the assistance of the Criminal Division. In certain matters the United States Attorney may wish to request the formation of a team of agents representing the agencies having investigative jurisdiction of the suspected violations.

The grand jury may be used by the United States Attorney to investigate alleged or suspected violations of federal law. Unless circumstances dictate otherwise, a grand jury investigation should not be opened without consultation with the investigative agency or agencies having investigative jurisdiction of the alleged or suspected offense.

[cited in USAM 9-2.001]

9-2.020

Declining Prosecution

The United States Attorney is authorized to decline prosecution in any case referred directly to him/her by an agency unless a statute provides otherwise. See USAM 9-2.111. Whenever a case is closed without prosecution, the United States Attorney's files should reflect the action taken and the reason for it.

[cited in USAM 9-2.001]

9-2.021

Armed Forces Enlistment as an Alternative to Federal Prosecution

Present regulations of the Armed Services prohibit the enlistment of an individual against whom criminal or juvenile charges are pending or against whom the charges have been dismissed to facilitate the individual's enlistment. This policy is based, in part, on the premise that the individual who enlists under such conditions is not properly motivated to become an effective member of the Armed Forces.

Determination as to whether prosecution should be instituted or pending criminal charges dismissed in any case should be made on the basis of whether the public interest would thereby best be served and without reference to possible military service on the part of the subject. The Armed Forces are not to be regarded as correctional institutions and United States Attorneys are urged to give full cooperation to the Department of Defense in the latter's efforts to ensure a highly motivated all-volunteer Armed Forces and to bolster public confidence in military service as a respectable and honorable profession.

There may be exceptional cases in which imminent military service, together with other factors, may be considered in deciding to decline prosecution if the offense is trivial or insubstantial, the offender is generally of good character, has no record or habits of anti-social behavior, and does not require rehabilitation through existing criminal institutional methods, and failure to prosecute will not seriously impair observance of the law in question or respect for law generally. In no case, however, should the United States Attorney be a party to, or encourage, an agreement respecting foregoing criminal prosecution in exchange for enlistment in the Armed Services.

9-2.022

Pretrial Diversion as an Alternative to Federal Prosecution

A United States Attorney may consider Pretrial Diversion as an alternative to federal criminal prosecution. Pretrial Diversion is addressed in USAM 9-22.000.

9-2.030

Authorizing Prosecution

The United States Attorney is authorized to initiate prosecution by filing a complaint, requesting an indictment from the grand jury, and when permitted by law, by filing an information in any case which, in his or her judgment, warrants such action, other than those instances enumerated in USAM 9-2.120.

In arriving at a decision, the United States Attorney should consider the recommendations for prosecution of the specific offense set forth in the chapters discussing substantive offenses. The recommendations are instructive only and not mandatory.

[cited in USAM 9-2.001; Criminal Resource Manual 1841]

9-2.031

Dual and Successive Prosecution Policy ("Petite Policy")

  1. Statement of Policy: This policy establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding. See Rinaldi v. United States, 434 U.S. 22, 27, (1977); Petite v. United States, 361 U.S. 529 (1960). Although there is no general statutory bar to a federal prosecution where the defendant's conduct already has formed the basis for a state prosecution, Congress expressly has provided that, as to certain offenses, a state judgment of conviction or acquittal on the merits shall be a bar to any subsequent federal prosecution for the same act or acts. See 18 U.S.C. §§ 659, 660, 1992, 2101, 2117; see also 15 U.S.C. §§ 80a-36, 1282.

    The purpose of this policy is to vindicate substantial federal interests through appropriate federal prosecutions, to protect persons charged with criminal conduct from the burdens associated with multiple prosecutions and punishments for substantially the same act(s) or transaction(s), to promote efficient utilization of Department resources, and to promote coordination and cooperation between federal and state prosecutors.

    This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General.

    Satisfaction of the three substantive prerequisites does not mean that a proposed prosecution must be approved or brought. The traditional elements of federal prosecutorial discretion continue to apply. See Principles of Federal Prosecution, USAM 9-27.110.

    In order to insure the most efficient use of law enforcement resources, whenever a matter involves overlapping federal and state jurisdiction, federal prosecutors should, as soon as possible, consult with their state counterparts to determine the most appropriate single forum in which to proceed to satisfy the substantial federal and state interests involved, and, if possible, to resolve all criminal liability for the acts in question.

  2. Types of Prosecution to which This Policy Applies: This policy applies only to charging decisions; it does not apply to pre-charge investigations. Yet, where a prior prosecution has been brought based on substantially the same act(s) or transaction(s), a subsequent federal investigation should, generally speaking, initially focus on evidence relevant to determining whether a subsequent federal prosecution would be warranted in light of the three substantive prerequisites previously listed.

    Keeping in mind the distinction between charging decisions and precharge investigations, this policy applies whenever the contemplated federal prosecution is based on substantially the same act(s) or transaction(s) involved in a prior state or federal prosecution.

    This policy constitutes an exercise of the Department's prosecutorial discretion, and applies even where a prior state prosecution would not legally bar a subsequent federal prosecution under the Double Jeopardy Clause because of the doctrine of dual sovereignty (see Abbate v. United States, 359 U.S. 187 (1959)), or a prior prosecution would not legally bar a subsequent state or federal prosecution under the Double Jeopardy Clause because each offense requires proof of an element not contained in the other. See United States v. Dixon, 509 U.S. 688 (1993); Blockburger v. United States, 284 U.S. 299 (1932).

    This policy does not apply, and thus prior approval is not required, where the prior prosecution involved only a minor part of the contemplated federal charges. For example, a federal conspiracy or RICO prosecution may allege overt acts or predicate offenses previously prosecuted as long as those acts or offenses do not represent substantially the whole of the contemplated federal charge, and, in a RICO prosecution, as long as there are a sufficient number of predicate offenses to sustain the RICO charge if the previously prosecuted offenses were excluded.

    This policy does not apply, and thus prior approval is not required, where the contemplated federal prosecution could not have been brought in the initial federal prosecution because of, for example, venue restrictions, or joinder or proof problems.

    Please note that when there is no need for prior approval because this policy does not apply, all other approval requirements remain in force. One example of another approval requirement is the one requiring Criminal Division approval of all RICO indictments.

  3. Stages of Prosecution at which Policy Applies: This policy applies whenever there has been a prior state or federal prosecution resulting in an acquittal, a conviction, including one resulting from a plea agreement, or a dismissal or other termination of the case on the merits after jeopardy has attached.

    Once a prior prosecution reaches one of the above-listed stages this policy applies, and approval is required before a federal prosecution can be initiated or continued, even if an indictment or information already has been filed in the federal prosecution.

    An exception occurs, and this policy does not apply, if the federal trial has commenced and the prior prosecution subsequently reaches one of the above-listed stages. When, however, a federal trial results in a mistrial, dismissal, or reversal on appeal, and, in the interim, a prior prosecution has reached one of the above listed stages, this policy applies.

  4. Substantive Prerequisites for Approval of a Prosecution Governed by this Policy. As previously stated there are three substantive prerequisites that must be met before approval will be granted for the initiation or a continuation of a prosecution governed by this policy.

    The first substantive prerequisite is that the matter must involve a substantial federal interest. This determination will be made on a case-by-case basis, applying the considerations applicable to all federal prosecutions. See Principles of Federal Prosecution, USAM 9-27.230. Matters that come within the national investigative or prosecutorial priorities established by the Department are more likely than others to satisfy this requirement.

    The second substantive prerequisite is that the prior prosecution must have left that substantial federal interest demonstrably unvindicated. In general, the Department will presume that a prior prosecution, regardless of result, has vindicated the relevant federal interest. That presumption, however, may be overcome when there are factors suggesting an unvindicated federal interest.

    The presumption may be overcome when a conviction was not achieved because of the following sorts of factors: first, incompetence, corruption, intimidation, or undue influence; second, court or jury nullification in clear disregard of the evidence or the law; third, the unavailability of significant evidence, either because it was not timely discovered or known by the prosecution, or because it was kept from the trier of fact's consideration because of an erroneous interpretation of the law; fourth, the failure in a prior state prosecution to prove an element of a state offense that is not an element of the contemplated federal offense; and fifth, the exclusion of charges in a prior federal prosecution out of concern for fairness to other defendants, or for significant resource considerations that favored separate federal prosecutions.

    The presumption may be overcome even when a conviction was achieved in the prior prosecution in the following circumstances: first, if the prior sentence was manifestly inadequate in light of the federal interest involved and a substantially enhanced sentence—including forfeiture and restitution as well as imprisonment and fines—is available through the contemplated federal prosecution, or second, if the choice of charges, or the determination of guilt, or the severity of sentence in the prior prosecution was affected by the sorts of factors listed in the previous paragraph. An example might be a case in which the charges in the initial prosecution trivialized the seriousness of the contemplated federal offense, for example, a state prosecution for assault and battery in a case involving the murder of a federal official.

    The presumption also may be overcome, irrespective of the result in a prior state prosecution, in those rare cases where the following three conditions are met: first, the alleged violation involves a compelling federal interest, particularly one implicating an enduring national priority; second, the alleged violation involves egregious conduct, including that which threatens or causes loss of life, severe economic or physical harm, or the impairment of the functioning of an agency of the federal government or the due administration of justice; and third, the result in the prior prosecution was manifestly inadequate in light of the federal interest involved.

    The third substantive prerequisite is that the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. This is the same test applied to all federal prosecutions. See Principles of Federal Prosecution, USAM 9-27.200 et seq. This requirement turns on the evaluation of the admissible evidence that will be available at the time of trial. The possibility that, despite the law and the facts, the fact-finder may acquit the defendant because of the unpopularity of some factor involved in the prosecution, or because of the overwhelming popularity of the defendant, or his or her cause, is not a factor that should preclude a proposed prosecution. Also, when in the case of a prior conviction the unvindicated federal interest in the matter arises because of the availability of a substantially enhanced sentence, the government must believe that the admissible evidence meets the legal requirements for such sentence.

  5. Procedural prerequisite for Bringing a Prosecution Governed by This Policy. Whenever a substantial question arises as to whether this policy applies to a prosecution, the matter should be submitted to the appropriate Assistant Attorney General for resolution. Prior approval from the appropriate Assistant Attorney General must be obtained before bringing a prosecution governed by this policy. See the form at Criminal Resource Manual 162. The United States will move to dismiss any prosecution governed by this policy in which prior approval was not obtained, unless the Assistant Attorney General retroactively approves it on the following grounds: first, that there unusual or overriding circumstances justifying retroactive approval, and second, that the prosecution would have been approved had approval been sought in a timely fashion. Appropriate administrative action may be initiated against prosecutors who violate this policy.

  6. Reservation and Superseding Effect: for Internal Guidance Only, No Substantive or Procedural Rights Created. This policy has been promulgated solely for the purpose of internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, that are enforceable at law by any party in any matter, civil or criminal, nor does it place any limitations on otherwise lawful litigative prerogatives of the Department of Justice.

    All of the federal circuit courts that have considered the question have held that a criminal defendant can not invoke the Department's policy as a bar to federal prosecution. See, e.g., United States v. Snell, 592 F.2d 1083 (9th Cir. 1979); United States v. Howard, 590 F.2d 564 (4th Cir. 1979); United States v. Frederick, 583 F.2d 273 (6th Cir. 1978); United States v. Thompson, 579 F.2d 1184 (10th Cir. 1978) (en banc); United States v. Wallace, 578 F.2d 735 (5th Cir. 1978); United States v. Nelligan, 573 F.2d 251 (5th Cir. 1978); United States v. Hutul, 416 F.2d 607 (7th Cir. 1969). The Supreme Court, in analogous contexts, has concluded that Department policies governing its internal operations do not create rights which may be enforced by defendants against the Department. See United States v. Caceres, 440 U.S. 471 (1979); Sullivan v. United States, 348 U.S. 170 (1954).

    This policy statement supersedes all prior Department guidelines and policy statements on the subject.
[updated July 2009] [cited in USAM 5-11.113; USAM 9-2.112; USAM 9-27.230; Criminal Resource Manual 670; 682; 2079]

9-2.032

Notification to the Criminal Division of Certain Prosecutions of Attorneys

  1. In either of the following two circumstances, the United States Attorney or Departmental Component Head shall notify the Assistant Attorney General, Criminal Division, whenever his/her office intends to file a complaint, information, or indictment against an attorney:

    1. When the charges are based, in whole or in part, on evidence that the attorney served as counsel for an ongoing criminal enterprise or organization; or

    2. When—

      (a) the charges are based, in whole or in part, on actions or omissions by the attorney during the representation of a current or former client; and

      (b) the attorney's current or former client is, or is likely to be, a witness against the attorney; and

      (c) the client will, or is likely to, testify against the attorney pursuant to a non-prosecution, cooperation, or similar agreement with the government

  2. Except in emergency situations, the United States Attorney or Departmental Component Head shall provide such notice sufficiently in advance of the filing of a complaint, information, or indictment to provide the Assistant Attorney General, Criminal Division, a reasonable time to consult with the prosecuting office/component. In addition, the United States Attorney or Departmental component head should consider providing notice during an investigation involving the circumstances described above in A.1 or A.2, if the existence of such investigation is about to be, or has been, made public. See the Criminal Resource Manual at 86 for the form by which to provide notification.

  3. The requirements set forth in this section shall not apply to indictments that are subject to pre-indictment review by a Department component under other provisions of the United States Attorneys' Manual, e.g., RICO, tax, etc., cases.

  4. Guidance With Regard to Prosecutors' Participation in Attorney Prosecution

    The following guidance is provided for Assistant United States Attorneys (AUSAs) and Department Attorneys regarding certain prosecutions of attorneys:

    1. Pursuant to 5 C.F.R. § 2635.501, a government employee, including an AUSA or Department Attorney, should "take[] appropriate steps to avoid an appearance of loss of impartiality in the performance of his[/her] official duties." Unless he/she receives prior authorization from an appropriate agency official, an attorney "should not participate in a particular matter ... if he[/she] determines that a reasonable person with knowledge of the relevant facts would question his impartiality in the matter." Id.; see also 5 C.F.R. § 2635.502; 28 C.F.R.§ 45.2.

    2. In light of the foregoing requirements—

      (a) An AUSA or Department Attorney must consider whether it is appropriate for him/her to participate in a criminal investigation or prosecution of a private attorney in circumstances in which, prior to the initiation of the criminal investigation or prosecution, the AUSA or Department Attorney was involved in a matter in which the private attorney represented a current or former target or subject of the investigation or litigation, regardless of whether that investigation or litigation was civil or criminal in nature and regardless of whether that investigation or litigation is ongoing.

      (b) In making this determination, the AUSA or Department Attorney shall weigh, where applicable, the following factors, among others:

      (i) the level of his/her involvement in the investigation or litigation involving the attorney's current or former client;

      (ii) the level of his/her involvement in the ongoing criminal investigation or prosecution of the attorney;

      (iii) the amount of time, if any, that has passed between the investigation or litigation involving the attorney's current or former client and ongoing criminal investigation or prosecution of the attorney;

      (iv) the level of the attorney's involvement in the representation of the current or former client; and

      (v) the potential that there will be a public perception of favoritism or animus toward the attorney.

      (c) An AUSA's or Department Attorney's decision regarding his/her participation in such a criminal investigation or prosecution must be reviewed personally by the United States Attorney or Department Component Head, respectively. Regardless of the outcome of that review, the United States Attorney or Department Component Head also shall consider whether it is appropriate to recuse the entire office. See USAM 3-2.170.

    3. In all circumstances, AUSAs and United States Attorneys are encouraged to consult with Legal Counsel for the Executive Office for United States Attorneys, and Department Attorneys and their component heads should consult with appropriate Departmental counsel.

[updated March 2008]

9-2.040

Dismissal of Complaints

The United States Attorney may dismiss a criminal complaint without prior authorization from the Criminal Division except in the instances enumerated in USAM 9-2.145. However, Rule 48(a), Fed. R. Crim. P., requires leave of court for dismissal of a complaint, as discussed infra. See also USAM 9-27.000 (Principles of Federal Prosecution).

If the person charged in a complaint has been bound over for grand jury action, the complaint may be dismissed by the United States Attorney only by leave of court. A court may confer on the United States attorney a blanket authorization to dismiss complaints. If such authorization has not been given, leave of court to dismiss the complaint must be obtained in each particular case.

Whether leave of court is required to dismiss a complaint prior to the defendant being bound over for grand jury action has not been judicially settled. The United States Attorney must be governed by the interpretation of Fed. R. Crim. P. 48(a) given by the court in his district. The view that leave of court is not required to dismiss a complaint prior to the person charged being bound over is supported by the control over complaints given to judicial officers in Rules 4 and 5, Fed. R. Crim. P. Under those rules, a judicial officer may issue a warrant, may discharge a defendant, and may cancel an unexecuted warrant of arrest. It would seem, therefore, that the judicial officer can exercise a like control over a complaint prior to his decision to bind over the defendant and that leave of the court is not required.

9-2.041

Cancellation of Unexecuted Arrest Warrants

Care should be taken that the Marshal of the district is promptly informed by the United States Attorney of the dismissal of a complaint, whether by the court or a judicial officer, in order to facilitate cancellations of unexecuted arrest warrants as provided in Fed. R. Crim. P. 4(d)(4). Such notification is also important when a warrant of arrest is outstanding in connection with a detainer lodged against a defendant who is confined in another district. Since the warrant will have been forwarded by the Marshal of the district where it was issued to the Marshal in the district of detention, the warrant will have to be returned to the Marshal of the issuing district for cancellation by the judicial officer after the complaint has been dismissed.

9-2.050

Dismissal of Indictments and Informations

The United States Attorney may move for leave of court to dismiss an indictment or information, in whole or part, without prior authorization from the Criminal Division except in the instances enumerated in USAM 9-2.145. The United States Attorney may in any case request the views of the Criminal Division as to the dismissal of any indictment or information. Prior to dismissing an indictment the United States Attorney should consult with the referring department or agency, and also seek to obtain the views of the investigative agency involved in the matter.

Whenever the United States Attorney concludes that a dismissal is warranted, he should take prompt action to dismiss. However, an indictment should not be dismissed merely because the defendant is a fugitive.

Rule 48(a), Fed. R. Crim. P., requires leave of court for dismissal of an indictment or information by the United States Attorney. A dismissal by the United States Attorney may not be filed during the trial without the consent of the defendant. See Fed. R. Crim. P. 48(a). The court may decline leave to dismiss if the manifest public interest requires it. See Rinaldi v. United States, 434 U.S. 22 (1977); United States v. Gonzalez, 58 F.3d 459 (9th Cir.1995); United States v. Welborn, 849 F.2d 980 (5th Cir.1988); United States v. Hamm, 659 F.2d 624 (5th Cir.1981)(and cases therein).

In moving for leave to dismiss, the local practice should be followed. However, in cases of considerable public interest or importance where dismissal of the entire indictment or information is sought because of an inability to establish a prima facie case, a written motion for leave to dismiss should be filed explaining fully the reason for the request. The importance of the case is not to be measured simply by the punishment prescribed for the offense. If the case involves fraud against the government, bribery, or a similarly important matter, or if any other department or branch of the government is specially interested, it is recommended that the written form of motion be used.

Often it is desirable to dismiss actions against defendants committed to federal custody for psychiatric examination to determine competency to stand trial pursuant to 18 U.S.C. § 4241(d) and 18 U.S.C. § 4247(b), and against defendants found incompetent to stand trial until their competency is restored. The Bureau of Prisons and the appropriate Medical Center for Federal Prisoners should be given notice well in advance of such dismissals and the provisions of Chapter 313 of Title 18 complied with. In cases involving dismissals of prosecution under 18 U.S.C. § 871, the Secret Service should be notified. In every case of a dismissal, the file should reflect the reasons for the dismissal. See also Principles of Federal Prosecution, USAM 9-27.000.

[cited in USAM 9-2.001]

9-2.060

Appeals, Mandamus, Stays, Rehearing, Certiorari

The authority of the United States Attorney with relation to appeals is set forth in USAM 9-2.170. See also USAM Title 2.

9-2.100

Limitations on United States Attorneys

Limitations on actions of the United States Attorney in criminal matters assigned to the Criminal Division are imposed by statutes and by policies of the Department. The statutory limitations are listed in USAM 9-2.111 and 9-2.112. The policy limitations are listed in USAM 9-2.120.

9-2.101

American Bar Association Standards for Criminal Justice

The American Bar Association Standards for Criminal Justice have not been adopted as official policy by the Department; however, since the courts utilize the Standards in determining issues covered by them, it is recommended that all United States Attorneys familiarize themselves with them. The ABA Standards for Criminal Justice, Table of Standards, Second Edition can be found in the Advance Sheets of the Federal Reporter, Third Series.

9-2.110

Statutory Limitations—Generally

Certain statutes impose limitations on the authority of the United States Attorney to decline prosecution, to prosecute, and to take certain actions relating to the prosecution of criminal cases.

[cited in USAM 9-4.010]

9-2.111

Statutory Limitations—Declinations

If a judge, receiver, or trustee in a case under Title 11, United States Code, has reported to the United States Attorney that he/she believes a violation of Chapter 9, Title 11, United States Code, or other laws of the United States relating to insolvent debtors, receiverships, or reorganization plans has been committed, or that an investigation should be had in connection therewith, 18 U.S.C. § 3057(a), the United States Attorney, if he/she decides upon inquiry and examination that the ends of public justice do not require investigation or prosecution, must report the facts to the Attorney General for his/her direction, 18 U.S.C. § 3057(b). The report of the United States Attorney should be sent to the Criminal Division, Fraud Section. See USAM 9-41.010 (Bankruptcy Fraud).

Only the Assistant Attorney General, Criminal Division, the Deputy Attorney General, or the Attorney General can authorize a declination of a prosecution for national security reasons. Classified Information Procedures Act, 18 U.S.C. App. (Supp. V 1981). Accordingly, the Internal Security Section, Criminal Division, is to be consulted in any case in which there is a possibility that prosecution may be declined for national security reasons. See USAM 9-90.020 (National Security Matters: Prior Approval, Consultation, and Notification Requirements).

United States Attorneys may not decline to prosecute violations of 50 U.S.C. App. 462(a) involving the failure to register with the Selective Service System without prior notification to the Criminal Division (Office of Enforcement Operations). Such notification is necessitated by the requirement of 50 U.S.C. App. § 462(c) that the Department "advise the [Congress] in writing the reasons for its failure" to bring such prosecutions. See USAM 9-79.400 (Failure to Register with the Selective Service System).

[cited in USAM 9-2.020; USAM 9-2.100]

9-2.112

Statutory Limitations—Prosecutions

No prosecution of an offense described in 18 U.S.C. § 245 (Federally Protected Activities) may be undertaken by the United States except upon the certification of the Attorney General or Deputy Attorney General that in his or her judgment a prosecution by the United States is in the public interest and necessary to secure substantial justice. See USAM 9-85.200. The function of certification may not be delegated. See 18 U.S.C. § 245(a)(1). The anti-riot provision, 18 U.S.C. § 245(b)(3), and violations of 18 U.S.C. § 245(b)(1), insofar as it relates to matters not involving discrimination or intimidation on grounds of race, color, religion, or national origin, are assigned to the Criminal Division and requests for certification relating to them should be sent to the Criminal Division. Formerly, prosecutions under 42 U.S.C. §§ 2272-2276 (Atomic Energy Act) might be brought only after receiving the express direction of the Attorney General. See 42 U.S.C. § 2271(c).

Violations of 18 U.S.C. § 1073 (Flight to Avoid Prosecution or Giving Testimony) may be prosecuted only upon formal approval in writing by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or an Assistant Attorney General. Accordingly, under no circumstances should an indictment under the Act be sought, nor an information be filed, nor should criminal proceedings under Rule 40, Federal Rules of Criminal Procedure be instituted without the written approval of the Assistant Attorney General, Criminal Division. Requests for written approval to prosecute should be forwarded to the Policy and Statutory Enforcement Unit of the Office of Enforcement Operations. See USAM 9-69.460. This approval requirement also applies to cases involving custody disputes. See USAM 9-69.421.

Prosecution for violations of 18 U.S.C. § 659 (Theft from Interstate Shipments) and of 18 U.S.C. § 2102 (Riots) are barred if there has been a judgment of conviction or acquittal on the merits under the law of any State for the same act or acts. See 18 U.S.C. §§ 659, 2101(c). That a Federal prosecution for violation of 18 U.S.C. § 659 was initiated prior to the commencement of the State prosecution did not prevent dismissal of the Federal indictment when a State trial on a larceny charge resulted in acquittal before a defendant was retried on the Federal indictment following a remand from the Court of Appeals. See United States v. Evans, (D.N.J. November 19, 1968) (DJ 15-48-368). The Solicitor General decided no appeal should be taken not because of 18 U.S.C. § 659 but because of the policy against dual prosecution. See USAM 9-2.031 (Petite Policy).

[updated May 2012] [cited in USAM 9-2.100]

9-2.120

Policy Limitations—Generally

Department of Justice and Criminal Division policies impose limitations on the authority of the United States Attorney to decline prosecution, to prosecute, and to take certain actions relating to the prosecution of criminal cases. These policy limitations are discussed throughout the United States Attorneys' Manual, with a centralized listing contained in 9-2.400.

With regard to policy limitations, if in the opinion of the United States Attorney the exigencies of the situation prevent compliance with a policy, he/she shall take the action deemed appropriate. He/she shall promptly report to the Criminal Division the deviation from policy, or if the policy is established by a higher authority, report to that authority and be guided by the instructions furnished him/her. A written report of the deviation should be promptly made. Approval of the action of the United States Attorney or his/her taking action as instructed shall be deemed, for all purposes, to be compliance with the policy. Among the purposes of this language is to ensure that criminals do not escape prosecution by inaction on the part of a United States Attorney immobilized by policy; to require a report of deviation from policy in order that the policy may be evaluated; and to express confidence in the judgment, and to reaffirm the authority, of the United States Attorney in such a situation.

If the United States Attorney discovers that a policy of the Division or of a higher authority has not been followed because of inadvertence, he/she shall promptly notify the Division or higher authority of the deviation from policy by the most expeditious means and subsequently in writing. He/she shall be guided by the instructions furnished him/her. Approval of the action of the United States Attorney, or his/her taking action as instructed shall be deemed, for all purposes, to be compliance with the policy.

In the instances when the United States Attorney is directed to consult with the Division prior to taking an action, such consultation will typically be by an Assistant United States Attorney with an attorney of the section assigned responsibility for the statute or matter involved. See USAM 9-4.000. If there is a disagreement at this level, the matter should be resolved by appropriate higher authority before the disputed action is taken.

[updated January 1999] [cited in USAM 9-2.030; USAM 9-2.100; USAM 9-4.010]

9-2.131

Matters Assumed by Criminal Division or Higher Authority

If primary prosecutorial responsibility for a matter has been assumed by the Criminal Division or higher authority, the United States Attorney shall consult with the persons having primary responsibility before conducting grand jury proceedings, seeking indictment, or filing an information.

9-2.136

Notification, Consultation, and Approval Requirements for International Terrorism Matters

  1. The Need for a Consistent and Coordinated National Enforcement Strategy for International Terrorism Matters.

    Faced with the growing threat of international terrorism and in order to implement this nation's obligations under various international conventions designed to prevent and punish acts of terrorism, Congress has enacted significant legislation to expand the jurisdiction of the United States to investigate and prosecute terrorist activities occurring within and outside the territorial jurisdiction of the United States. Following the terrorist attacks of September 11, 2001, the Attorney General implemented various initiatives to ensure an aggressive, consistent, and coordinated national enforcement program to prevent, disrupt, and punish international terrorism. The Department and the Congress also emphasized the need for robust sharing of information related to terrorism between and among Department components and other Executive Branch agencies, including the need for relevant information collected at headquarters components to flow to the field as well as information flowing from the field to headquarters. In view of the expanded Federal criminal jurisdiction over and importance of international terrorism matters and the obvious need to ensure a well-coordinated Federal response to such matters, the following policy is established in regard to international terrorism, including terrorist acts planned or committed outside the territorial jurisdiction of the United States over which Federal criminal jurisdiction exists and those within the United States involving international terrorists and terrorist groups. The coordination is conducted by the National Security Division (NSD) and, in particular, by its Counterterrorism Section (CTS).

  2. What Constitutes an "International Terrorism" Investigation.

    The requirements in this section apply to all investigations involving an identified link to international terrorism. If the United States Attorney's Office (USAO) or the referring agency has opened the investigation as an international terrorism matter (such as an FBI 315 file), or if the matter is being investigated as an international terrorism matter by a Joint Terrorism Task Force, the matter will presumptively qualify as an international terrorism investigation. In addition, other investigations in which links to international terrorism are identified after the investigation is initiated will qualify at that point as international terrorism matters for purposes of this section, regardless of the statutory violation initially presented or ultimately charged and regardless of the referring agency. If there is any question about whether a matter involves international terrorism, all doubt should be resolved in favor of consultation with CTS.

    The notification, consultation, and information-sharing provisions of this section apply in all international terrorism matters. The approval requirements depend on whether the Federal statute to be utilized in certain court actions is listed in Category 1 below, in which case approval is presumptively required, or Category 2, in which case approval is presumptively not required.

    1. International Terrorism Statutes (Category 1)

      The Federal statutes listed in this subsection represent the intent of Congress to expand the jurisdiction of the United States to investigate and prosecute international terrorism or are utilized regularly in international terrorism matters. If a Category 1 statute is being used in a terrorism investigation that is not entirely domestic i.e., a terrorism investigation that involves foreign nationals, foreign locations, or connections to foreign countries or groups— the matter shall be deemed an international terrorism matter. This includes use of a listed statute as the object of a conspiracy or as a predicate for a RICO or other offense.

      • Terrorist Acts Abroad Against United States Nationals (18 U.S.C. § 2332)

      • Terrorism Transcending National Boundaries (18 U.S.C. § 2332b)

      • Hostage Taking (18 U.S.C. § 1203)

      • Aircraft Piracy (49 U.S.C. § 46502)

      • Aircraft Sabotage (18 U.S.C. § 32)

      • Conspiracy Within the United States to Murder, Kidnap, or Maim Persons or to Damage Certain Property Overseas (18 U.S.C. § 956)

      • Providing Material Support to Terrorists (18 U.S.C. § 2339A)

      • Providing Material Support to Designated Terrorist Organizations (18 U.S.C. § 2339B)

      • Prohibition Against Financing of Terrorism (18 U.S.C. § 2339C)

      • Violations of IEEPA (50 U.S.C. § 1705(b)) involving E.O. 12947 (Terrorists Who Threaten to Disrupt the Middle East Peace Process); E.O. 13224 (Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism or Global Terrorism List); and E.O. 13129 (Blocking Property and Prohibiting Transactions With the Taliban)

      • Harboring Terrorists (18 U.S.C. § 2339)

      • Terrorist Attacks Against Mass Transportation Systems (18 U.S.C. § 1993)

      • Use of Biological, Nuclear, Chemical or Other Weapons of Mass Destruction (18 U.S.C. §§ 175, 175b, 229, 831, 2332a)

      • Sabotage of Nuclear Facilities or Fuel (42 U.S.C. § 2284)

      • Crimes Against Internationally Protected Persons (18 U.S.C. § § 112, 878, 1116, l201(a)(4))

      • Bombings of places of public use, Government facilities, public transportation systems and infrastructure facilities (18 U.S.C. § 2332f)

      • Production, Transfer, or Possession of Variola Virus (Smallpox) (18 U.S.C. § 175c)

      • Participation in Nuclear and WMD Threats to the United States (18 U.S.C. § 832)

      • Missile Systems designed to Destroy Aircraft (18 U.S.C. § 2332g)

      • Production, Transfer, or Possession of Radiological Dispersal Devices (18 U.S.C. § 2332h)

      • Receiving Military-Type Training from an FTO (18 U.S.C. § 2339D)

      • Narco-Terrorism (21 U.S.C. § 1010A)

      • Animal Enterprise Terrorism (18 U.S.C. § 43)

    2. Other International Terrorism Matters (Category 2)

      A variety of other Federal statutes may also be used to prevent, disrupt, and punish international terrorists. These include the statutes listed below as well as many other Federal offenses including, but not limited to, fraud offenses, immigration offenses, firearms charges, drug crimes, and false statement, perjury, and obstruction of justice offenses. While these statutes may be used in a variety of contexts, some not involving terrorism at all and others involving only domestic terrorism, if the investigation in which the statute is used involves an identified link to international terrorism, including but not limited to any link or reference to a designated Foreign Terrorist Organization (FTO), it is encompassed by the policy set forth in this section.

      • Arsons and Bombings (18 U.S.C. §§ 842(m), 842(n), 844(f), 844(i))

      • Unlicensed Money Remitter Charges (18 U.S.C. § 1960)

      • Protection of Computers (18 U.S.C. § 1030)

      • False Statements (18 U.S.C. § 1001)

      • Violence at International Airports (18 U.S.C. § 37)

      • Killings in the Course of Attack on a Federal Facility (18 U.S.C. § 930(c))

      • Crimes in the Special Aircraft Jurisdiction other than Aircraft Piracy (49 U.S.C. §§ 46503-46507)

      • Crimes Committed Within the Special Maritime and Territorial Jurisdiction of the United States (l8 U.S.C. §§ 7, 113, 114, 115, 1111, 1112, 1201, 2111)

      • Wrecking Trains (18 U.S.C. § 1992)

      • Destruction of Interstate Gas or Hazardous Liquid Pipeline Facilities (49 U.S.C. § 60123(b))

      • Destruction of Communication Lines (18 U.S.C. § 1362)

      • Destruction of National Defense Materials, Premises, or Utilities (18 U.S.C. §  2155)

      • Sea Piracy (18 U.S.C. § 1651)

      • Violence against Maritime Navigation and Maritime Fixed Platforms (18 U.S.C. §§ 2280, 2281)

      • International Traffic in Arms Regulations (22 U.S.C. § 2778, and the rules and regulations promulgated thereunder, 22 C.F.R. § 121-130)

      • Genocide (18 U.S.C. § 1091)

      • Torture (18 U.S.C. § 2340A)

      • War Crimes (18 U.S.C. § 2441)

      • Recruitment or Use of Child Soldiers (18 U.S.C. § 2442)

      • False Information and Hoaxes (18 U.S.C. § 1038)

  3. Channels for Communications Between the USAO and the National Security Division.

    Communications regarding the notification, consultation, information-sharing, and approval requirements of this section should normally be made between the Anti-Terrorism Advisory Council (ATAC) Coordinator or other designated Assistant United States Attorneys (AUSAs) in the USAO and the Regional ATAC Coordinator or designated Trial Attorney in the Counterterrorism Section (CTS). If necessary, including if the usual contact is unavailable, communications may also be directed from the National Security Division to supervisory AUSAs or to the United States Attorney, and from the USAO to the CTS National ATAC Coordinator, a CTS supervisor, or the CTS Chief or the AAG or his/her staff. Communications need only be made through a single channel; multiple communications on the same matter are not required. If a substantive offense being discussed is within the area of responsibility of another section of the National Security Division (e.g., Arms Export Control Act-Counterespionage Section) or the Criminal Division (e.g., Torture—Human Rights and Special Prosecutions Section (HRSP)), CTS will be responsible for coordinating the matter with that section.

    The main CTS telephone number is (202) 514-0849. After business hours, all CTS attorneys and the CTS duty officer may be reached by calling the Justice Command Center at (202) 514- 5000.

  4. USAO Notification of CTS is Required Regarding Initiation of and Significant Developments in All International Terrorism Matters.

    Initiation. The USAO shall notify CTS when any international terrorism matter is opened. The notification should include the names and identifiers, if known, of subjects of the investigation and a general overview of the investigation, so that CTS may attempt to identify linkages to, and deconflict the investigation with, investigations that may be ongoing in other districts or within CTS and may raise any concerns about the proposed investigation. To allow this process, notification should be made in advance where practicable and otherwise as soon as possible, but the USAO should not delay in taking necessary investigative action, particularly where such action is covert. Notification may be made by email or telephone; or, as necessary to protect classified and sensitive information, by secure fax or telephone; and may utilize the standard Case Notification Form available from CTS if preferred. If after notification, CTS determines that there are related matters pending in other districts that could be affected by investigative action in the new matter, CTS will so inform the USAO and will advise the other districts of the new matter.

    Significant Developments. In all international terrorism matters, the USAO shall notify CTS of significant developments in the investigation and prosecution, including the filing of search warrants; the filing of material witness warrants; the application for electronic surveillance; the declination of the matter without filing of charges; the filing and dismissal of criminal or immigration charges; the entering of plea agreements; the initiation and results of trials; and the results of sentencings and appeals. (As discussed in subsection H below, in certain international terrorism matters, some of these court actions also require prior approval of the National Security Division.) CTS will be responsible for reporting to the Department's leadership on such developments, although the USAO should also send Urgent Reports on such matters as required by USAM Chapter 1-13.000.

  5. USAO Consultation with CTS is Encouraged in All International Terrorism Investigations and is Required Before Issuing Grand Jury Subpoenas in Overlapping Investigations.

    Consultation between USAOs and CTS is encouraged in all international terrorism matters. Consultation at the inception of an investigation facilitates consideration of the full range of investigative tools now available and discussion of investigative strategy. Consultation on significant investigative and prosecution developments also facilitates coordination, as necessary and appropriate, with other Department components and with other law enforcement, intelligence, defense and other agencies; such coordination is often done in practice, and sometimes must be done pursuant to Attorney General guidelines or by request of the other components and agencies, at the headquarters level. Consultation promotes careful evaluation of intelligence, defense, foreign policy and other governmental interests that often affect investigative tactics and strategies, charging decisions, discovery (including such issues as defendants' access to detained enemy combatants), use of classified information, use of expert witnesses and cooperating witnesses and defendants from other jurisdictions, jury instructions, sentencing issues, and similar concerns.

    Grand Jury Subpoenas and Pen/Trap Orders. Where a USAO is aware that another USAO or CTS has a related international terrorism matter opened, the USAO shall not issue grand jury subpoenas or apply for a pen register or trap and trace order that may impact such related matters without first consulting with CTS and the other district.

  6. CTS is Required to Share Relevant Information With Affected USAOs.

    When CTS becomes aware, through contacts with USAOs, other National Security Division and Criminal Division Sections and Department components, including the FBI, other agencies, or otherwise, of information that may be relevant to an international terrorism matter pending in a USAO, including relevant investigative action that may be planned in another district and issues regarding FISA searches or electronic surveillance, CTS shall share that information directly with the USAO as soon as practicable and to the extent authorized by the originator of the information. Where relevant information is known to CTS but cannot be shared with a USAO due to originator requirements, CTS shall request that the originator authorize such sharing.

  7. CTS Intranet Website Will Be Accessible to USAOs.

    To the extent practical and permitted by classification, need-to-know, operational security, court sealing, and similar restrictions, CTS should also share available information about activities in terrorism matters generally with all USAOs. A large amount of such information, including the CTS Daily Reports, is available to USAOs through the CTS intranet website. United States Attorneys, ATACs, and other AUSAs with a need to know may obtain licenses allowing access to the CTS website by contacting EOUSA.

  8. Prior Express Approval of the Assistant Attorney General of the National Security Division or His Designee is Presumptively Required Regarding Certain Court Actions in Category 1 Matters, and is Required in Category 2 Matters Where Requested By the Assistant Attorney General.

    Prior express approval of the Assistant Attorney General of the National Security Division (AAG) or his designee is presumptively required for certain court actions involving the international terrorism-focused (Category 1) statutes. Prior approval is required in other (Category 2) international terrorism matters only upon AAG request. Prior approval is required for the following court actions:

    1. Filing an application for a search warrant.

    2. Filing an application for a material witness warrant.

    3. Filing a criminal complaint or information or seeking the return of an indictment.

    4. Filing a superseding complaint or information, or seeking the return of a superseding indictment.

    5. Dismissing a charge for which AAG approval was initially required, including as part of a plea agreement. (See also the discussion of other plea agreements later in this Section.)

    6. Other specific court filings as requested by the AAG.

    In other words, if the court document in an international terrorism matter utilizes a Category 1 statute listed in subsection B.1. above, the AAG or his designee must approve the action in advance unless the AAG advises the USAO that he does not seek to exercise approval authority in the particular matter or with regard to the particular court filing. For example, the AAG may determine after reviewing a routine search warrant in a Category 1 case that he does not need to review any similar search warrants in that particular case. This approval requirement applies whether the Category 1 statute is used as a substantive offense or as the object of a conspiracy or a predicate offense for a RICO or other violation. The approval requirement also applies to "hoax" and "threat" cases that utilize Weapons of Mass Destruction or other Category 1 statutes.

    In the many other international terrorism matters in which court documents do not utilize one of the Category 1 statutes—such as cases using one of the more general Category 2 statutes described in subsection B.2. above—then prior approval is required only if the AAG advises the USAO that he wishes to exercise approval authority for some or all of the court actions in the particular matter. Note that in cases not requiring AAG approval, the USAO should still notify CTS of these sorts of court actions as significant developments in the matter, as discussed in subsection D above.

    If the United States Attorney believes that AAG approval is not warranted in a case in which the AAG has requested to exercise approval authority for some or all of the court actions in the particular matter, the United States Attorney may appeal to the Deputy Attorney General for a determination of whether such approval is necessary.

    Indictments, Informations, and Complaints. Where prior approval is required, the USAO should make the application for approval through CTS. In such cases, submission to CTS of a prosecution memorandum and a copy of the proposed indictment, information, or complaint is normally required prior to seeking authorization for charges, although CTS may waive this requirement in a particular case. The final draft of the proposed charge must be provided to CTS before final AAG approval will be sought. Attorneys are encouraged to seek informal guidance from CTS throughout the investigation and well before a final indictment and prosecution memorandum are submitted for review. The submitting AUSA must allocate sufficient lead time to permit review, revision, discussion, and the scheduling of the grand jury. The information provided should indicate both the proposed date for the investigatory action and the proposed date by which the USAO needs a response. If CTS is unable to respond within the time frame suggested by the USAO, CTS must immediately notify the USAO to determine an acceptable time frame agreed to by both parties. A well-written, carefully organized prosecution memorandum is the greatest guarantee that a prosecution will be authorized quickly and efficiently.

    Significant Filings. In approval cases, once charges have been filed in court, a copy of the file-stamped charging document shall be provided to CTS. CTS shall also be notified and provided copies of any significant court rulings in the case. In addition, copies of motions, jury instructions and briefs filed by the USAO, as well as the defendant(s), should be forwarded to CTS for retention in a central reference file. The government's briefs and motions will provide assistance to other USAOs handling similar matters. Once a verdict has been obtained, the USAO shall forward to CTS the verdict on each count of the indictment and the sentence(s) received by each defendant.

    Plea Agreements. Before entering into a plea agreement in a case in which court documents utilize one of the Category 1 statutes (or cases using Category 2 statutes in which the AAG makes a request), the USAO shall notify and seek the concurrence of the AAG, with any disagreement to be resolved by the Deputy Attorney General.

  9. Exigent Circumstances.

    If exigent circumstances require a USAO to take immediate action in an international terrorism matter without complying with the consultation or prior approval requirements set forth above, the USAO must notify CTS of any action taken as soon as practicable thereafter and the exigent circumstances that precluded obtaining prior approval. The USAO shall provide copies of any court filings made. If the AAG determines that further review or action appears appropriate, the AAG and the USAO will confer on how best to proceed. Any disagreements will be resolved by the Deputy Attorney General.

  10. Attorney General Certification Under 18 U.S.C. § 2332.

    Pursuant to statute, the written certification of the Attorney General is required to allege a violation of 18 U.S.C. § 2332. This certification represents a finding that the offense was intended to coerce, intimidate or retaliate against a government or civilian population. Application for this certification should be made through CTS, allowing sufficient lead time for review and transmittal to the Attorney General.

See also the flowchart in the Criminal Resource Manual at 88.

[updated November 2013] [cited in USAM 9-60.700; USAM 9-63.181; USAM 9-63.221; USAM 9-65.811]

9-2.137

Notification Requirements in Domestic Terrorism Matters

Domestic terrorists pose a significant threat to the safety and well-being of the United States. To a significant degree, this threat arises in connection with movements and groups whose existence spans multiple jurisdictions or even the entire nation, making effective coordination of these matters critical. This may include matters in which there is a reason to believe that a subject, target, or defendant may lead, belong to, or otherwise participate in the activities of an organization that is the subject of a preliminary or full field FBI Terrorism Enterprise Investigation (TEI), and other matters within the definition of "domestic terrorism" (See Title 18, United States Code § 2331(5)).

The USAO shall notify CTS, through its CTS Regional Coordinator, the CTS Domestic Terrorism Coordinator, or the National Anti-Terrorism Advisory Council (ATAC) Coordinator, of the initiation and significant developments in domestic terrorism investigations (i.e., a terrorism investigation that does not involve foreign nationals, foreign locations, or connections to foreign countries or groups). Department approval is not required for the initiation, investigation, or prosecution of domestic terrorism matters; however, notification to CTS regarding these cases will allow for general coordination and deconfliction of such matters, enhance opportunities to recognize overlap with international terrorism matters, and allow CTS to track developments in the FBI TEIs that CTS reviews. CTS attorneys are also available for consultation on such investigations and prosecutions. This notification requirement replaces the monthly domestic terrorism reports previously required to be filed with EOUSA by the USAOs.

When CTS becomes aware, through contacts with USAOs, other National Security Division and Criminal Division Sections and Department components including the FBI, other agencies, or otherwise, of information that may be relevant to a domestic terrorism matter pending in a USAO, including relevant investigative action that may be planned in another district, CTS shall share that information directly with the USAO as soon as practicable and to the extent authorized by the originator of the information. Where relevant information is known to CTS but cannot be shared with a USAO due to originator requirements, CTS shall request that the originator authorize such sharing.

[New November 2006]

9-2.138

Notification, Consultation, and Approval Requirements for Weapons of Mass Destruction (WMD) Matters

  1. Nationwide Enforcement Policy is Required

    Matters involving the Weapons of Mass Destruction (WMD) statutes (18 U.S.C. §§ 175, l75b, 175c, 229, 831, 832, 2332a, and 2332h), may involve international terrorism, in which case they are already covered by the policy set forth in USAM 9-2.136. Even if the matters do not involve international terrorism, however, the importance and sensitivity of these matters requires a consistent national approach as established in the following policy. The policy is coordinated by the National Security Division. The Counterterrorism Section (CTS) is the point of contact for these matters.

    During business hours, the main CTS number is (202) 514-0849. After business hours, CTS attorneys and supervisors may be reached by calling the Justice Command Center at (202) 514-5000.

  2. What Constitutes a WMD Matter

    The Department is seeing an increasing number of investigations involving the use of chemical, biological, radiological, and nuclear (CBRN) material and agents, as well as large scale explosive devices intended to cause catastrophic damage and weapons that seek to combine CBRN and ordinary explosives. The requirements in this section apply in all investigations in which the USAO contemplates charging an offense under the WMD statutes (18 U.S.C. §§ 175, l75b, 175c, 229, 831, 832, 2332a, and 2332h), regardless of the statutory violation initially presented or ultimately charged and regardless of the referring agency.

  3. Exception for "Routine" WMD-related Hoax and Threat Matters

    The USAO is not required to follow the approval requirements of this section if the case is a "routine" threat or hoax case. A case is not routine if (1) the USAO intends to charge an offense under the WMD statutes; (2) the matter affects other districts; or (3) the matter is expected to attract national public or media attention. Notification to CTS of routine hoax and threat matters is still encouraged.

  4. Notification and Consultation Requirements

    Initiation. When the USAO opens any WMD matter, the USAO shall promptly notify CTS. The notification should include the names and identifiers, if known, of the subjects of the investigation and a general overview of the investigation. Whenever feasible, notification should be made in advance of any action by the USAO, and otherwise as soon as possible, but the USAO should not delay in taking any necessary investigative action, particularly where such action is covert. Notification may be made by email or telephone (or by secured means where necessary), and may utilize the standard Case Notification Form available from CTS if preferred. If after notification, CTS determines that there are related matters pending in another district that could be affected by the new matter, CTS will so inform the USAO and will advise the other district of the new matter.

    Grand Jury Subpoenas and Pen/Trap Orders. Where a USAO is aware that another USAO or CTS has opened a related matter, the USAO shall not issue a grand jury subpoena or apply for a pen register or trap and trace order that may affect the related matter without first consulting with CTS and the other district.

    Significant Developments and Case Preparation. The USAO shall notify CTS of any significant development in the investigation and prosecution of the matter, including the filing of a search warrant; the filing of a material witness warrant; the application for electronic surveillance; the declination of the matter without filing of charges; the filing and dismissal of criminal or immigration charges; the entering of a plea agreement; the initiation and results of trials; and the results of sentencings and appeals. (As discussed in subsection E below, some of these same court actions also require prior approval of the Assistant Attorney General of the National Security Division.) The USAO is also encouraged to consult with CTS on issues such as investigative tactics and strategies, discovery, jury instructions, sentencing issues, the use of expert witnesses, and the use of cooperating witnesses and cooperating defendants from other jurisdictions.

    Information Sharing with the USAO. When CTS becomes aware of information from any source that may be relevant to a WMD matter pending in a USAO, including relevant investigative action that may be planned in another district, CTS shall share that information with the USAO as soon as practicable, to the extent authorized by the originator of the information. Where relevant information known to CTS cannot be shared with a USAO due to originator requirements, CTS shall request that the originator authorize such sharing.

  5. Approval Requirements

    Prior, express approval of the Assistant Attorney General (AAG) of the National Security Division (or his or her designee) is required for the following court actions involving a WMD matter:

    1. filing an application for a search warrant;

    2. filing an application for a material witness warrant;

    3. filing a criminal complaint or information or seeking the return of an indictment;

    4. filing a superseding complaint or information, or seeking the return of a superseding indictment;

    5. dismissing a charge for which AAG approval was initially required, including as part of a plea agreement; and

    6. other specific court filings as requested by the AAG.

    Where prior approval is required, the USAO should make the application for approval through CTS. Submission to CTS of a prosecution memorandum and a copy of the proposed application, indictment, information, or complaint is normally required prior to seeking AAG approval, although CTS may waive this requirement in a particular case. The final draft of any proposed charge must be provided to CTS before final AAG approval will be given. Attorneys are encouraged to seek informal guidance from CTS throughout the investigation and well before a final indictment and prosecution memorandum are submitted for review. The submitting AUSA must allocate sufficient lead time to permit review, revision, discussion, and the scheduling of the grand jury. The information provided should indicate both the proposed date for the contemplated action and the proposed date by which the USAO needs a response. If CTS is unable to respond within the time frame suggested by the USAO, CTS must immediately notify the USAO to determine an acceptable time frame agreed to by both parties. A well- written, carefully organized prosecution memorandum is the greatest guarantee that a prosecution will be authorized quickly and efficiently.

    In cases requiring approval, once a charge has been filed in court, a copy of a file-stamped charging document shall be provided to CTS. CTS shall also be notified and provided copies of any significant court rulings in the case. In addition, copies of motions, jury instructions and briefs filed by the USAO, as well as the defendant(s), should be forwarded to CTS for retention in a central reference file. Such a file of the government's briefs and motions will provide assistance to other USAOs handling similar matters. Once a verdict has been obtained, the USAO shall forward to CTS the verdict on each count of the indictment and the sentence(s) received by each defendant.

  6. AAG Concurrence Requirement for Plea Agreements

    The USAO must seek the prior concurrence of the AAG before entering into a plea agreement in a WMD matter. If the AAG does not concur to the entry of the plea agreement, the disagreement shall be resolved by the Deputy Attorney General.

  7. Exigent Circumstances

    If exigent circumstances require a USAO to take immediate action in a WMD matter without complying with the notification, consultation, concurrence, or prior approval requirements set forth above, the USAO must promptly notify CTS of any action taken and of the exigent circumstances that precluded obtaining prior approval. The USAO shall also provide CTS copies of any court filings made. If the AAG determines that further review or action appears appropriate, the AAG and the USAO will confer on how best to proceed. Any disagreements will be resolved by the Deputy Attorney General.

[updated July 2007]

9-2.139

Notification, Consultation, and Approval Requirements for Torture, War Crimes, Genocide Matters, and Child Soldiers Matters

  1. National Coordination

    Matters involving torture (18 U.S.C. §§ 2340-2340B), war crimes (18 U.S.C. § 2441), and genocide (18 U.S.C. §§ 1091-1093), and recruitment or use of child soldiers (18 U.S.C. § 2442) raise issues of national and international concern. Successful prosecution of these matters requires both careful coordination within the Department of Justice and careful coordination between the Department and senior officials in the foreign affairs and military communities. The responsibility for this coordination is assigned to the Criminal Division and, in particular, its Human Rights and Special Prosecutions Section (HRSP). If a matter involving torture, war crimes, genocide, or reruitment or use of child soldiers also involves international terrorism, responsibility for coordination will be assigned to the Counterterrorism Section of the National Security Division as provided in this section and USAM 9-2.136.

    During business hours, the main HRSP number is (202) 616-2492. After business hours, HRSP attorneys and supervisors may be reached by calling the Justice Command Center at (202) 514-5000.

  2. Matters Involving Torture, War Crimes, Genocide, or Recruitment or Use of Child Soldiers

    The requirements in this section apply in all investigations in which the USAO contemplates—

    1. charging torture (18 U.S.C. §§ 2340-2340B), a war crime (18 U.S.C. § 2441), genocide (18 U.S.C. §§ 1091-1093), or recruitment or use of child soldiers (18 U.S.C. § 2442); or

    2. charging any other offense (such as a violation of 18 U.S.C. §§ 1001, 1425, or 1546) where proof of the other offense (i.e., of the false statement or fraud) will require the government to either define torture, war crimes, genocide, or recruitment or use of child soldiers; or to prove that torture, a war crime, genocide, or recruitment or use of child soldiers was committed.

  3. Notification Requirements

    Initiation. When the USAO opens any torture, war crimes, genocide, or child soldiers matter, the USAO shall promptly notify the Human Rights and Special Prosecutions Section (HRSP) of the Criminal Division. The notification should include the names and identifiers, if known, of the subjects of the investigation and a general overview of the investigation. Whenever feasible, notification should be made in advance of any action by the USAO, and otherwise as soon as possible, but the USAO should not delay in taking any necessary investigative action, particularly where such action is undercover. Notification may be made by email or telephone (or by secured means where necessary), and may utilize the standard Case Notification Form available from HRSP if preferred. If after notification, HRSP determines that there are related matters pending in another district that could be affected by the new matter, HRSP will so inform the USAO and will advise the other district of the new matter.

    HRSP shall immediately notify CTS of all notifications made by a USAO under this paragraph. If CTS determines that a matter involves international terrorism, CTS will assume coordination of the matter pursuant to USAM 9-2.136. When CTS assumes coordination of a torture, war crimes, genocide, or child soldiers matter involving international terrorism, the approval, notification, and consultation requirements of USAM 9-2.136 apply. For all other cases, the following requirements apply.

  4. Consultation Requirements

    Grand Jury Subpoenas and Pen/Trap Orders. Where a USAO is aware that another USAO or HRSP has opened a related matter, the USAO shall not issue a grand jury subpoena or apply for a pen register or trap and trace order that may affect the related matter without first consulting with HRSP and the other district.

    Significant Developments and Case Preparation. The USAO shall notify HRSP of any significant development in the investigation and prosecution of the matter, including the filing of a search warrant; the filing of a material witness warrant; the application for electronic surveillance; the declination of the matter without filing of charges; the filing and dismissal of criminal or immigration charges; the entering of a plea agreement; the initiation and results of trials; and the results of sentencings and appeals. (As discussed in subsection E below, some of these same court actions also require prior approval of the Assistant Attorney General of the Criminal Division.) The USAO is also encouraged to consult with HRSP on issues such as investigative tactics and strategies, discovery, jury instructions, sentencing issues, the use of expert witnesses, and the use of cooperating witnesses and cooperating defendants from other jurisdictions.

    Information Sharing with the USAO. When HRSP becomes aware of information from any source that may be relevant to a torture, war crimes, genocide, or child soldiers matter pending in a USAO, including relevant investigative action that may be planned in another district, HRSP shall share that information with the USAO as soon as practicable, to the extent authorized by the originator of the information. Where relevant information known to HRSP cannot be shared with a USAO due to originator requirements, HRSP shall request that the originator authorize such sharing.

  5. Approval Requirements

    Prior, express approval of the Assistant Attorney General (AAG) of the Criminal Division (or his or her designee) is required for the following court actions involving a torture, war crimes, or genocide matter:

    1. filing an application for a search warrant;

    2. filing an application for a material witness warrant;

    3. filing a criminal complaint or information or seeking the return of an indictment;

    4. filing a superseding complaint or information, or seeking the return of a superseding indictment;

    5. dismissing a charge for which AAG approval was initially required, including as part of a plea agreement; and

    6. other specific court filings as requested by the AAG.

    Where prior approval is required, the USAO should make the application for approval through HRSP. Submission to HRSP of a prosecution memorandum and a copy of the proposed application, indictment, information, or complaint is normally required prior to seeking AAG approval, although HRSP may waive this requirement in a particular case. The final draft of any proposed charge must be provided to HRSP before final AAG approval will be given. Attorneys are encouraged to seek informal guidance from HRSP throughout the investigation and well before a final indictment and prosecution memorandum are submitted for review. The submitting AUSA must allocate sufficient lead time to permit review, revision, discussion, and the scheduling of the grand jury. The information provided should indicate both the proposed date for the contemplated action and the proposed date by which the USAO needs a response. If HRSP is unable to respond within the time frame suggested by the USAO, HRSP must immediately notify the USAO to determine an acceptable time frame agreed to by both parties. A well-written, carefully organized prosecution memorandum is the greatest guarantee that a prosecution will be authorized quickly and efficiently.

    In cases requiring approval, once a charge has been filed in court, a copy of a file-stamped charging document shall be provided to HRSP. HRSP shall also be notified and provided copies of any significant court rulings in the case. In addition, copies of motions, jury instructions and briefs filed by the USAO, as well as the defendant(s), should be forwarded to HRSP for retention in a central reference file. Such a file of the government's briefs and motions will provide assistance to other USAOs handling similar matters. Once a verdict has been obtained, the USAO shall forward to HRSP the verdict on each count of the indictment and the sentence(s) received by each defendant.

  6. AAG Concurrence Requirement for Plea Agreements

    The USAO must seek the prior concurrence of the AAG before entering into a plea agreement in a torture, war crimes, genocide, or child soldiers matter. If the AAG does not concur to the entry of the plea agreement, the disagreement shall be resolved by the Deputy Attorney General.

  7. Exigent Circumstances

    If exigent circumstances require a USAO to take immediate action in a torture, war crimes, genocide, or child soldiers matter without complying with the notification, consultation, concurrence, or prior approval requirements set forth above, the USAO must promptly notify HRSP of any action taken and of the exigent circumstances that precluded obtaining prior approval. The USAO shall also provide HRSP copies of any court filings made. If the AAG determines that further review or action appears appropriate, the AAG and the USAO will confer on how best to proceed. Any disagreements will be resolved by the Deputy Attorney General.

[updated November 2013]

9-2.145

Dismissals

Criminal Division approval is required before dismissing, in whole or in part, an indictment, information, or complaint if prior approval was required before seeking an indictment or filing an information or complaint.

The above mentioned approval is not a direction but rather an authorization to dismiss if, in the opinion of the United States Attorney, this course is advisable. United States Attorneys must satisfy themselves that the conditions upon which dismissals are authorized have been complied with.

9-2.154

Legislative Proposals by United States Attorneys

The Criminal Division is interested in obtaining the benefit of any suggestions by United States Attorney or their Assistants for changes in federal statutory law, or rules, affecting criminal prosecutions. Accordingly, United States Attorneys and Assistant United States Attorneys are encouraged to develop such proposals and to forward them for initial consideration to the Office of Policy and Legislation. The suggestions for changes in rules and legislation may also be submitted concurrently to the Legislation and Public Policy Subcommittee of the Attorney General's Advisory Committee of United States Attorneys. Suggested legislative changes should be submitted concurrently to the Office of Legislative Affairs.

United States Attorneys and their staffs are reminded that all suggestions for changes in federal criminal statutes must be communicated to the Department of Justice and not to Congress directly. Unsolicited communication to Congress of individual proposals for legislation, outside proper official channels, has the potential to cause grave embarrassment to the Department and, however well motivated, is contrary to Department policy. See also, 18 U.S.C. § 1913. See also USAM 1-8.000 (Relations with the Congress).

9-2.155

Sensitive Matters

The United States Attorney should keep the Criminal Division apprised of all developments in sensitive criminal matters, particularly those which may generate questions to the Criminal Division or higher authority. See USAM Chapters 1-13.000, Urgent Reports, and 1-14.000, Notice to the Deputy Attorney General Required for Certain Criminal and Affirmative Civil Resolutions.

[updated August 2012]

9-2.159

Refusal of Government Departments and Agencies to Produce Evidence

It is the responsibility of the Department of Justice to enforce the law vigorously and it cannot abdicate this duty because of possible embarrassment to other agencies of the government. Situations may arise where substantial reasons of national security, foreign policy or the like may require the Department to abandon an investigation, forego litigation, or seek dismissal of a case. However, such action should be taken only after the most careful consideration of all of the relevant facts and then only with the personal approval of the Assistant Attorney General (AAG) in charge of the Division having responsibility for the case.

Accordingly, all United States Attorneys handling cases in which another government agency refuses to produce records or witnesses necessary for successful litigation of the case are directed to proceed in the following manner:

  1. In no event should the United States Attorney accept the opinion or representation of the agency that such records or witnesses cannot be made available without determining all of the specific facts upon which the agency relies to support its refusal.

  2. If the United States Attorney is not satisfied that the facts justify the refusal, he/she should so advise the agency and seek to procure the evidence requested of the agency.

  3. If the United States Attorney concurs that there are sufficient and valid reasons to support the agency's refusal to produce the necessary evidence, he/she should advise the AAG in charge of the division having jurisdiction over the subject matter of the case of his/her conclusion. That AAG, after consultation with the Deputy Attorney General, will authorize the United States Attorney, if necessary and appropriate, to terminate the investigation, forego the litigation, or dismiss the case. A full statement of the facts supporting the conclusion of the United States Attorney should be set forth in the correspondence to the appropriate AAG.

The United States Attorney should also apprise the appropriate AAG of any incidents coming to his/her attention where he/she believes any agency of the federal government is not cooperating in his/her efforts to obtain the full disclosure of the facts to enable him/her to make an intelligent judgment as to whether the agency's refusal to produce requested evidence is justified.

9-2.170

Decision to Appeal and to File Petitions in Appellate Courts

  1. Approval Requirements. 28 C.F.R. § 0.20(b) provides that the Solicitor General has the authority to "[d]etermine whether, and to what extent, appeals will be taken by the Government to all appellate courts (including petitions for rehearing en banc and petitions to such courts for the issuance of extraordinary writs)." The following actions must be approved:

    1. Any appeal of a decision adverse to the government, including an appeal of an order releasing a charged or convicted defendant or a request to seek a stay of a decision adverse to the government.

    2. A petition for rehearing that suggests rehearing en banc—and any rare appeal in which the government wishes to suggest that it be heard initially en banc. See Fed. R. App. P. 35(c). Although a petition for panel rehearing does not require the approval of the Solicitor General, one should not be filed until the Solicitor General has been given the opportunity to decide whether the case merits en banc review.

    3. A petition for mandamus or other extraordinary relief.

    4. In a government appeal, a request that the case be assigned to a different district court judge on remand.

    5. A request for recusal of a court of appeals judge.

    6. A petition for certiorari. (NOTE: 28 C.F.R. § 0.20(a) provides that the Solicitor General shall supervise all Supreme Court cases, "including appeals, petitions for and in opposition to certiorari, briefs and arguments, and settlement thereof." Accordingly, in criminal cases, only the Solicitor General petitions for certiorari or responds to petitions for certiorari).

  2. Reporting Requirements.

    1. In general.
      (a) This requirement only applies to adverse decisions, i.e., decisions made over the objection of the Government.

      (b) Reports under this section should conform to the requirements of USAM 2-2.111.

    2. District court decisions.
      (a) Except as set forth in Paragraph B(3) below, United States Attorneys' Offices (USAOs) should report all adverse, appealable district court decisions to the Appellate Section (including adverse 28 U.S.C. § 2255 decisions, habeas rulings, coram nobis rulings, and forfeiture rulings).

      (b) USAOs should also report any adverse decision for which authority is sought to file a petition for extraordinary relief, such as mandamus.

    3. Sentencing reporting requirements.

      USAOs must report the following categories of adverse sentencing decisions to the Appellate Section of the Criminal Division or other appropriate division:
      (a) Any case for which authority to appeal is sought. The USAO must report any adverse sentencing decision that the United States Attorney wishes to appeal. Authorization to appeal should be sought only if: the sentencing decision is not supported by the law or the evidence, or the sentence is unreasonable in light of 18 U.S.C. § 3553(a), and the appeal holds a reasonable prospect of a favorable result under the applicable standards of review. Each USAO should establish a process to ensure that the decision regarding an appeal is made at an appropriate supervisory level within the Office. In close cases, and in any other case where the USAO seeks a Circuit-wide or national perspective on the relevant issues, the USAO is encouraged to consult with the Appellate Section in deciding whether to seek authority to appeal.

      (b) Sentences below statutory minimum or above statutory maximum. Any decision in which the court imposed a sentence that is illegally below the statutory minimum sentence or above the statutory maximum sentence must be reported. USAOs must also report any decision where the court fails to order that a statutorily mandated consecutive sentence be served consecutively to another sentence.

      (c) Sentences based on prohibited factors. An adverse decision must be reported if the sentencing decision was based on race, sex, national origin, creed, or any other ground prohibited from consideration by statute or applicable case law.

      (d) Sentences imposed without statutory authority. An adverse decision must be reported if the district court having no jurisdiction re-sentences a defendant.

    4. Court of appeals decisions.
      (a) USAOs should report every published court of appeals' decision that is adverse to the government in any respect. They should report any unpublished court of appeals' decision that affirms a district court decision that the government appealed. They should report any unpublished court of appeals' decision that they believe merits rehearing en banc or certiorari.

      (b) Before confessing error in a court of appeals, USAOs should consult with the Appellate Section. USAOs should also consult with the Appellate Section before taking a position that is known to be inconsistent with the government's position in another case.

    5. Timing.
      (a) USAOs should report every adverse decision as soon as possible.

      (b) Adverse court of appeals' decisions must be reported within 7 days of the decision, since the government generally has 14 days to approve, draft, and file a rehearing petition in a criminal case. If the government obtains an extension of greater than two weeks, the decision should be reported at least 21 days before the extended due date.

  3. Timing of Appeals and Rehearing Petitions. The government has 30 days from the date of judgment or 30 days from the filing of any defendant's notice of appeal to file a notice of appeal. See Federal Rule of Appellate Procedure 4. A timely filed motion for reconsideration (that is, one filed within 30 days after judgment) extends the time for filing a notice of appeal until 30 days after the denial of the motion. The time for filing a notice of appeal is otherwise not subject to extension and is jurisdictional. For a Notice of Appeal form, see the Criminal Resource Manual at 22.

    The government has 60 days to file a notice of appeal from an adverse § 2255 habeas or in rem forfeiture decision.

    A protective notice of appeal should not be filed without notifying the Appellate Section. If a protective notice of appeal is filed and a briefing schedule is issued before authorization to appeal is obtained, notify the Appellate Section of the briefing schedule as soon as possible. In cases involving Sentencing Guidelines appeals, notify the Appellate Section before filing any document other than a protective notice of appeal, so that approval of the Solicitor General may be obtained.

    Federal Rule of Appellate Procedure 40 requires a party to file a petition for rehearing within 14 days of the court of appeals' judgment. In those instances in which the Appellate Section has not been advised of an adverse court of appeals' decision in a timely fashion, USAOs should protect the time to petition for rehearing by filing a motion requesting an extension of 30 days to petition for rehearing. Even when the Appellate Section has been timely advised of an adverse court of appeals' decision, the Appellate Section may ask the USAO to seek a 30-day extension of time within which to petition for rehearing in order to allow the Solicitor General time to review the case. Most circuits will grant the government a 30-day extension of time to file a petition for rehearing. For a form Petition for Rehearing Extension, see the Criminal Resource Manual at 23.

    Motions for extensions of time to file a rehearing petition must be received by the court on or before the date the rehearing petition is due. Similarly, rehearing petitions must be received on or before the date they are due. Mailing by the due date is insufficient to constitute timely filing.

    The government has 90 days from the date of the court of appeals' decision or an order denying a timely petition for rehearing to file a petition for a writ of certiorari.

  4. Obtaining Authorization to Appeal and Petition for Rehearing. To obtain authorization to appeal, the United States Attorney should send the following materials to the Appellate Section:

    • A memorandum setting forth reasons for the appeal;
    • The order or opinion of the district court;
    • Related motions or memoranda and relevant transcripts if available; and
    • In sentencing appeals, the presentence report and the judgment and commitment order.

    To obtain authorization to file a petition for rehearing with suggestion for rehearing en banc, the United States Attorney should send the following materials to the Appellate Section:

    • The opinion of the court of appeals;
    • The briefs filed by both parties in the court of appeals; and
    • A memorandum setting forth reasons justifying the filing of a petition for rehearing with suggestion for rehearing en banc.

    Materials should be sent to the following addresses:

By mail: By overnight courier:
Appellate Section
Criminal Division
P.O. Box 899
Ben Franklin Station
Washington, D.C. 20044
Appellate Section
Criminal Division
Room 2266, Main Justice Bldg.
10th St. & Pennsylvania Ave., N.W.
Washington, D.C. 20530

  1. Standards for Authorization. United States Attorneys' Offices are encouraged to consult with the Appellate Section if they have any question as to whether a case is appropriate for appeal or rehearing.

  2. The Authorization Process. After receiving the United States Attorney's request for authorization to seek further review, an Appellate Section attorney writes a memorandum containing a recommendation to the Solicitor General. If the Appellate Section agrees with the United States Attorney, then the United States Attorney's and the Appellate Section's recommendations are forwarded to the Solicitor General.

    If the Appellate Section disagrees with the United States Attorney, a Deputy Assistant Attorney General in the Criminal Division reviews the Appellate Section's and United States Attorney's recommendations before they are sent to the Solicitor General.

    Whenever further review is sought, an Assistant to the Solicitor General reviews the United States Attorney's and Appellate Section's recommendations and writes a memorandum containing the Assistant's recommendation to the Solicitor General. The Deputy Solicitor General then reviews all of the recommendations and writes another memorandum to the Solicitor General (except for sentencing guidelines cases, which go directly to the Solicitor General after review by an assistant). The Solicitor General personally determines whether to authorize every appeal and petition for rehearing with suggestion for rehearing en banc.

Appeals are also discussed in USAM Title 2.

[updated December 2008]

9-2.173

Arrest of Foreign Nationals

Where nationals of foreign countries are arrested on charges of Federal criminal violations, the United States Attorney has the responsibility to ensure that the treaty obligations of the United States concerning notification of the consular officer of the country of which the arrested person is a national are observed. The procedure to be followed when the arrest is by an officer of the Department of Justice is specified in 28 C.F.R. § 50.5.

Certain treaties require that the consular official be notified of the arrest of one of his/her nationals only upon the demand or request of the foreign national. Other treaties require notifying the consul of the arrest of a national of his/her country whether or not the arrested person requests such notification. If the foreign national arrested on Federal criminal charges is a member of the consular staff or the consul himself/herself, special obligations are imposed by certain treaties.

Information concerning the treaty obligations of the United States in the event of the arrest of a foreign national, a consul, or member of the consular staff may be obtained from the Criminal Division by calling the Office of International Affairs.

9-2.180

Strike Forces

Organized Crime Strike Force Units (OCSFU's) within specified United States Attorneys' Offices, operate under the provisions of Attorney General Order No. 1386-89 (December 26, 1989). The OCSFU's have the responsibility of supervising and prosecuting cases against criminal enterprises operating in or affecting the United States as identified by the Attorney General through the Attorney General's Organized Crime Council (Council).

The term "organized crime," applies herein to criminal groups that usually are structured and engage in repeated illegal activities over an extended period of time for profit within the United States.

9-2.181

Organized Crime Strike Force Unit Duties

The Organized Crime and Gang Section of the Criminal Division has the responsibility for ensuring that Organized Crime Strike Force Unit (OCSFU) cases are properly indicted and prosecuted. OCFSUs shall submit case initiation reports and prosecution memoranda and proposed indictments for approval and report significant developments to the Organized Crime and Gang Section. The Section must review and process all matters in organized crime cases that require the approval of the Assistant Attorney General of the Criminal Division or higher official, including immunities and electronic surveillance authorizations, as well as witness protection requests, plea dispositions, and appeals. Each OCFSU shall promptly advise the Section of all significant developments in a case, including the filing of indictments, significant pleadings, convictions, dismissals, acquittals, and impositions of sentences. The OCFSUs shall submit to the Section final copies of indictments as filed, daily reports on significant case developments, updated statistical data, and such other information as Section procedures require.

[updated May 2011]

9-2.182

Organized Crime Strike Force Unit Strategic Plans

Every two years each Organized Crime Strike Force Unit shall submit to the Attorney General's Organized Crime Council a strategic plan identifying and assessing organized crime conditions within its district. This strategic plan shall be prepared in consultation with all appropriate Federal and local enforcement agencies.

9-2.183

Organized Crime Strike Force Unit Personnel

Personnel allocations in each Organized Crime Strike Force Unit (OCSFU) shall remain at least at levels established in December 1989. The personnel in each OCFSU shall work exclusively on organized crime matters. Personnel assigned to the OCFSU cannot work on other matters without the permission of the Assistant Attorney General of the Criminal Division. Selections by the United States Attorney for the Position of Chief of the OCSFU and for any other OCSFU attorney position and the transfer of an attorney from an OCSFU requires the concurrence of the Assistant Attorney General of the Criminal Division.

9-2.200

Release of Information—Press Information and Privacy

See USAM 9-7.100, 28 C.F.R. § 50.2 for the Department's policy regarding the release of information to the news media or public relating to criminal or civil proceedings.

9-2.400

Prior Approvals Chart

USAM
SECTION
TYPE & SCOPE OF REPORTING, CONSULTING OR APPROVAL CONTACT
9-2.031 Approval is required to continue and/or initiate a federal prosecution affected by Petite policy (dual and successive prosecution). Assistant Attorney General, Criminal Division, through the Policy and Statutory Enforcement Unit of the Office of Enforcement Operations.
9-2.032 Notification to Criminal Division of certain prosecutions of attorneys, see 9-2.032. AAG/Criminal Division through Policy and Statutory Enforcement Unit, Office of Enforcement Operations.
9-2.136(D) The USAO shall notify CTS of the opening of any international terrorism matter. The notification should include the names and identifiers, if known, of subjects of the investigation and a general overview of the investigation, so that CTS may attempt to identify linkages to, and deconflict the investigation with, investigations that may be ongoing in other districts or within CTS and may raise any concerns about the proposed investigation. To allow this process, notification should be made in advance where practicable and otherwise as soon as possible, but the USAO should not delay in taking necessary investigative action, particularly where such action is covert. Notification may be made by email or telephone; or, as necessary to protect classified and sensitive information, by secure fax or telephone; and may utilize the standard Case Notification Form available from CTS if preferred. If after notification, CTS determines that there are related matters pending in other districts that could be affected by investigative action in the new matter, CTS will so inform the USAO and will advise the other districts of the new matter. Regional ATAC Coordinator in the Counterterrorism Section.
9-2.136(D) In all international terrorism matters, the USAO shall notify CTS of significant developments in the investigation and prosecution, including the filing of search warrants; the filing of material witness warrants; the application for electronic surveillance; the declination of the matter without filing of charges; the filing and dismissal of criminal or immigration charges; the entering of plea agreements; the initiation and results of trials; and the results of sentencings and appeals. CTS will be responsible for reporting to the Department's leadership on such developments, although the USAO should also send Urgent Reports on such matters as required by USAM Chapter 1-13.000. Regional ATAC Coordinator in the Counterterrorism Section.
9-2.136(E) Where a USAO is aware that another USAO or CTS has a related international terrorism matter opened, the USAO shall not issue grand jury subpoenas or apply for a pen register or trap and trace order that may impact such related matters without first consulting with CTS and the other district. Regional ATAC Coordinator in the Counterterrorism Section, and the ATAC Coordinator or other designated AUSAs in the other district.
9-2.136(F) When CTS becomes aware of information that may be relevant to an international terrorism matter pending in a USAO, including relevant investigative action that may be planned in another district and issues regarding FISA searches or electronic surveillance, CTS shall share that information directly with the USAO as soon as practicable and to the extent authorized by the originator of the information. Where relevant information is known to CTS but cannot be shared with a USAO due to originator requirements, CTS shall request that the originator authorize such sharing. The ATAC Coordinator or other designated AUSAs in the other district.
9-2.136(H) Prior express approval of the Assistant Attorney General of the National Security Division (AAG) or his designee is presumptively required for certain court actions involving the international terrorism-focused (Category 1) statutes:

  1. Filing an application for a search warrant.
  2. Filing an application for a material witness warrant.
  3. Filing a criminal complaint or information or seeking the return of an indictment.
  4. Filing a superseding complaint or information, or seeking the return of a superseding indictment.
  5. Dismissing a charge for which AAG approval was initially required, including as part of a plea agreement.
  6. Other specific court filings as requested by the AAG.

Prior approval is required in other (Category 2) international terrorism matters only upon AAG request. As noted above, even court actions that do not require prior approval will qualify as significant developments with notification requirements.

AAG of the National Security Division or his/her designee.
9-2.136(H) Before entering into a plea agreement in a case in which court documents utilize one of the Category 1 statutes (or cases using Category 2 statutes in which the AAG makes a request), the USAO shall notify and seek the concurrence of the AAG, with any disagreement to be resolved by the Deputy Attorney General. AAG of the National Security Division.
9-2.136(I) If exigent circumstances require a USAO to take immediate action in an international terrorism matter without complying with the consultation or prior approval requirements set forth above, the USAO must notify CTS of any action taken as soon as practicable thereafter and the exigent circumstances that precluded obtaining prior approval. The USAO shall provide copies of any court filings made. Regional ATAC Coordinator in the Counterterrorism Section.
9-2.136(J) The written certification of the Attorney General is required to allege a violation of 18 U.S.C. § 2332. Regional ATAC Coordinator in the Counterterrorism Section.
9-2.137 The USAO shall notify CTS, through its CTS Regional Coordinator, the CTS Domestic Terrorism Coordinator, or the National ATAC Coordinator, of the initiation and significant developments in domestic terrorism investigations (i.e., a terrorism investigation that does not involve foreign nationals, foreign locations, or connections to foreign countries or groups). Regional ATAC Coordinator, the CTS Domestic Terrorism Coordinator, or the National ATAC Coordinator in the Counterterrorism Section.
9-2.137 When CTS becomes aware of information that may be relevant to a domestic terrorism matter pending in a USAO, including relevant investigative action that may be planned in another district, CTS shall share that information directly with the USAO as soon as practicable and to the extent authorized by the originator of the information. Where relevant information is known to CTS but cannot be shared with a USAO due to originator requirements, CTS shall request that the originator authorize such sharing. The ATAC Coordinator or other designated AUSAs in the other district.
9-2.138(C) Notifying CTS of routine hoax or threat matters is not required, but is encouraged. Counterterrorism Section
9-2.138(D) USAOs must promptly notify CTS when the USAO opens any WMD matter. Counterterrorism Section
9-2.138(D) Where a USAO is aware that another USAO or CTS has opened a related matter, the USAO shall not issue a grand jury subpoena or apply for a pen register or trap and trace order that may affect the related matter without first consulting with CTS and the other district. Counterterrorism Section and the other district
9-2.138(D) The USAO shall notify CTS of any significant development in the investigation and prosecution of the matter, including the filing of a search warrant; the filing of a material witness warrant; the application for electronic surveillance; the declination of the matter without filing of charges; the filing and dismissal of criminal or immigration charges; the entering of a plea agreement; the initiation and results of trials; and the results of sentencings and appeals. Counterterrorism Section
9-2.138(E) Prior, express approval of the Assistant Attorney General (AAG) of the National Security Division (or his or her designee) is required for the following court actions involving a WMD matter: filing an application for a search warrant; filing an application for a material witness warrant; filing a criminal complaint or information or seeking the return of an indictment; filing a superseding complaint or information, or seeking the return of a superseding indictment; dismissing a charge for which AAG approval was initially required, including as part of a plea agreement; and other specific court filings as requested by the AAG. Assistant Attorney General (AAG) of the National Security Division, through the Counterterrorism Section
9-2.138(F) The USAO must seek the prior concurrence of the AAG before entering into a plea agreement in a WMD matter. Assistant Attorney General (AAG) of the National Security Division
9-2.138(G) If exigent circumstances require a USAO to take immediate action in a WMD matter without complying with the notification, consultation, concurrence, or prior approval requirements set forth above, the USAO must promptly notify CTS of any action taken and of the exigent circumstances that precluded obtaining prior approval. Counterterrorism Section
9-2.139(C) When the USAO opens any torture, war crimes, genocide, or child soldiers matter, the USAO shall promptly notify the Human Rights and Special Prosecutions Section (HRSP) of the Criminal Division. Human Rights and Special Prosecutions Section (HRSP).
9-2.139(C) HRSP shall immediately notify CTS of all notifications made by a USAO under 9-2.139(C) Counterterrorism Section.
9-2.139(D) Where a USAO is aware that another USAO or HRSP has opened a related matter, the USAO shall not issue a grand jury subpoena or apply for a pen register or trap and trace order that may affect the related matter without first consulting with HRSP and the other district. Human Rights and Special Prosecutions Section (HRSP) and the other district.
9-2.139(D) The USAO shall notify HRSP of any significant development in the investigation and prosecution of the matter, including the filing of a search warrant; the filing of a material witness warrant; the application for electronic surveillance; the declination of the matter without filing of charges; the filing and dismissal of criminal or immigration charges; the entering of a plea agreement; the initiation and results of trials; and the results of sentencings and appeals. Human Rights and Special Prosecutions Section (HRSP).
9-2.139(E) Prior, express approval of the Assistant Attorney General (AAG) of the Criminal Division (or his or her designee) is required for the following court actions involving a torture, war crimes, genocide, or child soldiers matter: filing an application for a search warrant; filing an application for a material witness warrant; filing a criminal complaint or information or seeking the return of an indictment; filing a superseding complaint or information, or seeking the return of a superseding indictment; dismissing a charge for which AAG approval was initially required, including as part of a plea agreement; and other specific court filings as requested by the AAG. Assistant Attorney General (AAG) of the Criminal Division, through the Human Rights and Special Prosecutions Section (HRSP).
9-2.139(F) The USAO must seek the prior concurrence of the AAG before entering into a plea agreement in a torture, war crimes, or genocide matter. Assistant Attorney General (AAG) of the Criminal Division.
9-2.139(G) If exigent circumstances require a USAO to take immediate action in a torture, war crimes, genocide, child soldiers matter without complying with the notification, consultation, concurrence, or prior approval requirements set forth above, the USAO must promptly notify HRSP of any action taken and of the exigent circumstances that precluded obtaining prior approval. Human Rights and Special Prosecutions Section (HRSP).
9-2.145 Approval to dismiss any charge or reduce any charge for which approval was necessary to through the Section indict or file an information or complaint. Assistant Attorney General, Criminal Division having jurisdiction of the Offense.
9-2.154 Legislative proposals should be forwarded for consultation. Office of Policy and Legislation.
9-2.159 Approval to dismiss case based on agency refusal to produce documents. Assistant Attorney General, Criminal Division.
9-2.170 Prior approval is required of the following appeals, requests, or petitions: 1) Any appeal of a decision adverse to the government, including an appeal of an order releasing a charged or convicted defendant or a request to seek a stay of a decision adverse to the government. 2) A petition for rehearing that suggests rehearing en banc—and any rare appeal in which the government wishes to suggest that it be heard initially en banc. See Fed. R. App. P. 35(c). Although a petition for panel rehearing does not require the approval of the Solicitor General, one should not be filed until the Solicitor General has been given the opportunity to decide whether the case merits en banc review. 3) A petition for mandamus or other extraordinary relief. 4) In a government appeal, a request that the case be assigned to a different district court judge on remand. 5) A request for recusal of a court of appeals judge. 6) A petition for certiorari (only the Solicitor General may file petitions for certiorari). Solicitor General, through Appellate Section, Criminal Division.
9-2.170 Notification is required of all adverse, appealable district court decisions (including adverse 28 U.S.C. § 2255 habeas rulings, coram nobis rulings, and forfeiture rulings). USAOs need only report adverse district court Sentencing Guidelines decisions if they wish to obtain authorization to appeal that decision. Other adverse sentencing decisions should be reported. Appellate Section, Criminal Division.
9-2.170 Notification is required of every published court of appeals' decision that is adverse to the government in any respect. Appellate Section, Criminal Division.
9-2.170 Consultation is required before confessing error in a court of appeals, or before taking a position that may be inconsistent with the government's position in another case. Appellate Section, Criminal Division.
9-2.173 Under some treaties, prosecutors are required to notify the consular official when a foreign national is arrested in the United States on federal criminal charges. Consular Officials of foreign countries. Contact the Office of International Affairs, Criminal Division, to determine whether a treaty requires contact with a consular official.
9-2.181 Approval is required for Organized Crime Strike Force matters. Every significant action in the investigation and prosecution, from case initiation, court authorized electronic surveillance, witness immunities, witness protection requests, undercover proposals, case indictment, disposition by plea, and other important events must be approved in advance by Organized Crime and Gang Section. All significant dispositions, including indictments and verdicts, must be reported to Organized Crime and Gang Section in writing. Organized Crime and Gang Section, Criminal Division.
USAM
SECTION
TYPE & SCOPE OF REPORTING, CONSULTING OR APPROVAL CONTACT
9-5.150 Approval is required to move for or consent to closure of judicial proceedings. 28 C.F.R. § 50.9. Deputy Attorney General (through the Division having supervisory authority over the offense charged; the Office of Enforcement Operations, through the Policy and Statutory Enforcement Unit, handles these approvals for the Criminal Division).
9-7.110 Approval is required for applications for court orders authorizing the interception of oral, wire or electronic communications (except for applications involving electronic communications to digital-display paging device-which may be approved by a United States Attorney). Approval is also required for extension requests. Assistant Attorney General, Criminal Division or Deputy Assistant Attorney General, through the Office of Enforcement Operations.
9-7.111 Approval is required for roving interception of wire and oral communications. Attorney General, Deputy Attorney General, Associate Attorney General, Assistant Attorney General, or Acting Assistant Attorney General, through Office of Enforcement Operations, Criminal Division.
9-7.112 Approval is required for emergency interceptions under 18 U.S.C. § 2518(7) without a court order. Attorney General, Deputy Attorney General, Associate Attorney General (after obtaining oral approval of AAG or DAAG of Criminal Division, through Office of Enforcement Operations).
9-7.200 Approval is required to use video surveillance for law enforcement purposes when there is a constitutionally protected expectation of privacy requiring judicial authorization. Assistant Attorney General, Deputy Assistant Attorney General, Director and Associate Directors of the Office of Enforcement Operations, Criminal Division.
9-7.302 Approval is required to intercept a non-telephonic verbal communication without the consent of all parties to the communication (but with the consent of at least one party to the communication),when it is known that: 1) The monitoring relates to an investigation of a member of Congress, a federal judge, a member of the Executive Branch at Executive Level IV, or above, or a person who has served in such capacity within the previous two years; (2) The monitoring relates to an investigation of the Governor, Lieutenant Governor, or Attorney General of any State or Territory, or a judge or justice of the highest court of any State or Territory, and the offense investigated is one involving bribery, conflict of interest, or extortion relating to the performance of his or her official duties (3) Any party to the communication is a member of the diplomatic corps of a foreign country; (4) any party to the communication is or has been a member of the Witness Security Program and that fact is known to the agency involved or its officers; (5) the consenting or nonconsenting person is in the custody of the Bureau of Prisons or the United States Marshals Service; or (6) the Attorney General, Deputy Attorney General, Associate Attorney General, any Assistant Attorney General, or the United States Attorney in the district where an investigation is being conducted has requested the investigating agency to obtain prior written consent before conducting consensual monitoring in a specific investigation. Director or Associate Director of the Office of Enforcement Operations, Criminal Division.
9-7.500 The use of pen registers to collect all or part of a URL is prohibited without prior consultation with CCIPS. This policy does not apply to applications for pen register orders that would merely authorize collection of Internet Protocol (IP) addresses, even if such IP addresses can be readily translated into URLs or portions of URLs. Similarly, this policy does not apply to the collection, at a web server, of tracing information indicating the source of requests to view a particular URL using a trap and trace order. Computer Crime and Intellectual Property Section, Criminal Division.
9-8.130 Notification must be provided prior to filing any motion to transfer a juvenile proceeding to an adult prosecution. Organized Crime and Gang Section, Criminal Division.
USAM
SECTION
TYPE & SCOPE OF REPORTING, CONSULTING OR APPROVAL CONTACT
9-10.020 A district indicting a Title 21 capital offense that occurred before March 6, 2006, should consult with the Capital Case Unit of the Criminal Division regarding indictment and procedure. Capital Case Unit, Criminal Division.
9-10.040 In all cases subject to the provisions of USAM Chapter 9-10.000, the Attorney General will make the final decision about whether to seek the death penalty. The Attorney General will convey the final decision to the United States Attorney in a letter authorizing him or her to seek or not to seek the death penalty. Attorney General.
9-10.040 In no event may the information identified in the second paragraph of USAM 9-10.040 be disclosed outside the Department and its investigative agencies without prior approval of the Attorney General. The United States Attorneys may exercise their discretion, however, to place additional limits on the scope of confidentiality in capital cases prosecuted in their Districts. Attorney General.
9-10.050 Prior to seeking an indictment for an offense subject to the death penalty, the United States Attorney is strongly advised, but not required, to consult with the Capital Case Unit. Capital Case Unit, Criminal Division.
9-10.050 The United States Attorney must immediately notify the Capital Case Unit when a capital offense is charged and provide the Unit with a copy of the indictment and cause number, even if the materials described in USAM  9-10.080 are not yet ready for submission. Capital Case Unit, Criminal Division.
9-10.080 The United States Attorney must submit to the Assistant Attorney General for the Criminal Division every case in which an indictment has been or will be obtained that charges an offense punishable by death or alleges conduct that could be charged as an offense punishable by death. The submissions to the Assistant Attorney General must be done as expeditiously as possible following indictment, but no fewer than 90 days before the Government is required, by an order of the court, to file a notice that it intends to seek the death penalty. In the absence of a court established deadline for the Attorney General's death penalty decision, the United States Attorney must make the submission sufficiently in advance of trial to allow for both the 90 day time period encompassed by the review process plus any additional time necessary to ensure that a notice of intent to seek the death penalty is timely filed under 18 U.S.C. § 3593(a). If a case is not submitted 90 days in advance of a deadline for the Attorney General's decision or 150 days in advance of a scheduled trial date, the prosecution memorandum should include an explanation of why the submission is untimely. Assistant Attorney General, Criminal Division.
9-10.110 Absent the authorization of the Attorney General, the United States Attorney may not enter into a binding plea agreement that precludes the United States from seeking the death penalty with respect to any defendant falling within the scope of USAM Chapter 9-10.000. Attorney General.
9-10.110 For proposed plea agreements that precede a decision by the Attorney General to seek or not to seek the death penalty, the United States Attorney should send a request for approval to the Assistant Attorney General for the Criminal Division as early as possible, absent unavoidable circumstances, no later than 90 days prior to the date on which the Government would be required, by an order of the court or by the requirements of 18 U.S.C. § 3593(a), to file a notice that it intends to seek the death penalty. Assistant Attorney General, Criminal Division.
9-10.140 Once the Attorney General has authorized the United States Attorney to seek the death penalty, the United States Attorney may not withdraw a notice of intention to seek the death penalty filed with the district court unless authorized by the Attorney General. Attorney General.
9-11.101 Consultation is required before any grand jury report is initiated, whether by a regular or special grand jury. See also 9-11.330. Chief of the Organized Crime and Gang Section, Criminal Division.
9-11.120 Approval is required to resubmit matter to a grand jury after no bill. United States Attorney.
9-11.140 See 9-13.525 for DOJ policy regarding issuing subpoenas to obtain evidence or testimony from other countries. Office of International Affairs, Criminal Division.
9-11.140 "Forthwith" subpoenas should be used only when an immediate response is justified and then may be used only with prior approval. United States Attorney.
9-11.150 Prior approval is required to subpoena a target to the grand jury. United States Attorney or Assistant Attorney General.
9-11.160 Prior approval is required to resubpoena a contumacious witness before successive grand juries and to seek civil contempt sanctions if the witness refuses to testify. Assistant Attorney General, Criminal Division, through the Office of Enforcement Operations.
9-11.242 Requests for appointments of Non-Department of Justice Government Attorneys as Special Assistant United States Attorneys or Special Assistant to the Attorney General so that they may appear before the grand jury must be made in writing. Executive Office for United States Attorneys (or Office of Enforcement Operations, Criminal Division, if the less common Special Assistant or Special Assistant to the Attorney General appointment is to be used in cases or matters within the jurisdiction of the Criminal Division.).
9-11.260 Prior written approval is required to request a court for permission to disclose grand jury materials under Federal Rules of Criminal Procedure 6(e)(3)(E)(iv) (disclosure of 6(e) material to State and Local Law Enforcement Officials). Assistant Attorney General for the Division having supervisory responsibility for the principal offenses being investigated. (If the Criminal Division has supervisory responsibility, such requests for approval should be sent to the Policy and Statutory Enforcement Unit of the Office of Enforcement Operations.).
9-11.300 Prior certification is required to empanel a special grand jury under 18 U.S.C. § 3331(a). Policy and Statutory Enforcement Unit of the Office of Enforcement Operations, Criminal Division.
9-11.330 Notification is requested when a special grand jury (empaneled under 18 U.S.C. § 3331—grand juries for organized crime) will be considering the issuance of a report, or will be preparing a report which the United States Attorney has not requested. Chief of the Organized Crime and Gang Section, Criminal Division.
9-11.330 Approval of draft special grand jury (18 U.S.C. § 3331—organized crime) reports is required before the draft report may be furnished to the special grand jury. Chief of the Organized Crime and Gang Section, Criminal Division.
9-13.400 Approval is required to: subpoena, interrogate, arrest or indict members of the news media, or to subpoena the telephone toll records of the news media. Attorney General, through the Division having supervisory authority over the offense charged. If the Criminal Division has supervisory authority, requests should be sent to the Policy and Statutory Enforcement Unit of the Office of Operations.
9-13.410 Approval is required to issue grand jury or trial subpoena to attorneys for information relating to the representation of client. Assistant Attorney General, Criminal Division, through the Office of Enforcement Operations.
9-13.420 No application for a search warrant for a subject attorney's office may be made to a court without the express approval of the United States Attorney or pertinent Assistant Attorney General. In addition to obtaining approval from the United States Attorney or the pertinent Assistant Attorney judicial authorization for the search warrant, the federal prosecutor must consult with the Criminal Division. Assistant Attorney General, Criminal Division, through the Office of Enforcement Operations.
9-13.500 Consultation is required before contacting any foreign or U.S. State Department official in relation to extradition of a fugitive or the obtaining of evidence in a criminal investigation or prosecution. Prior approval is required before attempting to do any act outside the United States relating to a criminal investigation or prosecution, including contacting a witness by telephone or mail. Office of International Affairs, Criminal Division.
See Criminal Resource Manual 276 Consultation is required to determine whether the United States has a Mutual Legal Assistance Treaty with the country from which the evidence is sought. Office of International Affairs, Criminal Division.
9-13.525 Written approval is required before issuing any subpoena to persons or entities in the United States for records located abroad. Office of International Affairs, Criminal Division.
9-13.525 Prior approval is required to serve a subpoena ad testificandum on an officer or attorney of a foreign bank or corporation who is temporarily in United States when in connection with the operation of the foreign bank or corporation. Office of International Affairs, Criminal Division.
9-13.526 Notification is required before filing civil forfeiture action pursuant to extraterritorial jurisdictional provision contained in 28 U.S.C. § 1355(b)(2) against assets in foreign country. Consultation is required before taking steps to present a foreign government, for enforcement or recognition, any civil or criminal forfeiture order entered in the United States for property located within the foreign jurisdiction. Office of International Affairs, which will consult with Asset Forfeiture and Money Laundering Section.
9-13.534 Approval is required for travel to a foreign country in connection with criminal investigations, trials, or other criminal law enforcement related to official activity. EOUSA approves with consent of Office of International Affairs.
9-13.540 Consultation is required regarding execution of foreign legal assistance requests that have not been routed through Office of International Affairs. 9-13.900. Approval is required for an ex parte motion for tax returns and tax return information under 26 U.S.C. § 6103.,Attorney General, Deputy Attorney General, Associate Attorney General, any Assistant Attorney General, any United States Attorney, any special prosecutor appointed under U.S.C. § 593, or any attorney in charge of a Criminal Division organized crime strike force established pursuant to 28 U.S.C. § 510.
USAM
SECTION
TYPE & SCOPE OF REPORTING, CONSULTING OR APPROVAL CONTACT
9-15.210 Prosecutors may not act on any foreign extradition or provisional arrest request that comes from a source other than OIA. Office of International Affairs, Assistant Attorney General, Criminal Division.
9-15.800 Written approval is required before prosecutors may agree, formally or informally, to prevent or delay extradition or deportation of cooperating aliens. Assistant Attorney General, Criminal Division, Office of International Affairs
9-16.010 Prior Approval is required for consent to a plea of nolo contendere. See also USAM 9-27.520. Attorney General, Associate Attorney General, Deputy Attorney General, or Assistant Attorney General with supervisory responsibility for the subject matter. (If the Criminal Division has supervisory responsibility, such requests for approval should be sent to the Policy and Statutory Enforcement Unit of the Office of Enforcement Operations.)
9-16.015 Prior Approval is required for consent to an Alford plea. See also USAM 9-27.400. Attorney General, Associate Attorney General, Deputy Attorney General, or Assistant Attorney General with supervisory responsibility for the subject matter.
9-16.030 Consultation with investigative agencies and victims is necessary before entering into a plea agreement. Relevant Investigative Agencies, and any known victim.
9-16.110 Prior approval is required for plea agreements with defendants who are candidates or members of Congress or federal judges. Public Integrity Section, Criminal Division.
9-19.220 Prior Approval is required for search warrant applications for documentary materials in possession of third parties, such as physicians, attorneys, or clergymen. United States Attorney or supervising DOJ attorney AND Deputy Assistant Attorney General for the division which supervises the underlying offense being investigated or prosecuted. With respect to offenses supervised by the Criminal Division, contact the Office of Enforcement Operations.
9-19.240 Approval is needed before a warrant is sought for seizure of any work product materials or other documentary materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar public communications that are governed by Title I of the Privacy Protection Act of 1980. Deputy Assistant Attorney General, Criminal Division, through the Office of Enforcement Operations's Policy and Statutory Enforcement Unit, and the Computer Crime and Intellectual Property Section.
USAM
SECTION
TYPE & SCOPE OF REPORTING, CONSULTING OR APPROVAL CONTACT
9-21.050 Prior Approval is required to use, for investigative purposes, persons who are in the custody of the USMS or BOP, or who are under BOP supervision. This approval requirement applies whether the individual is sentenced or unsentenced, but it does not apply if the person in Federal custody has not yet been arraigned, unless 72 hours have passed. Special Operations Unit, Office of Enforcement Operations, Criminal Division.
9-21.200 Approval is required of applications for Witness Security Program/Protection of Witnesses. Attorney General; Deputy Attorney General; Associate Attorney General; Assistant Attorney General, Civil Rights Division (if a criminal civil rights matter is involved); Assistant Attorney General, Criminal Division; or the Director or Senior the Office of Enforcement Operations, Criminal Division.
9-21.400 Prior Approval is required for public disclosure of a witness's pending or actual participation in the Witness Security Program. Witness Security Unit of the Office of Enforcement Operations, Criminal Division.
9-21.800 Prior approval is required to use any of the following persons as an informant: a currently protected witness, anyone relocated because of a witness's cooperation, or a former protected witness. Witness Security Unit of the Office of Enforcement Operations, Criminal Division.
9-23.130 Authorization is required before requesting immunity. Assistant Attorney General, Criminal Division, through Office of Enforcement Operations; (Antitrust AAG, Civil Rights AAG, Civil AAG, ENRD AAG, and Tax AAG may authorize compulsion orders also, but must obtain Criminal Division clearance.).
9-23.400 Prior written approval is required to initiate or recommend prosecution of an immunized person for an offense or offenses first disclosed in, or closely related to, immunized testimony or information. Attorney General, through the Assistant Attorney General for the division that issued the letter of authority for requesting the original compulsion order. Through the Office of Enforcement Operations, Criminal Division.
9-24.000 See 9-24.000 for procedures for requesting special confinement conditions for BOP inmates whose communications pose a substantial risk of death or serious bodily injury to persons. Attorney General through Office of Enforcement Operations, Criminal Division.
9-27.140 Approval is required for any significant modification of or departure from the principles of Federal Prosecution, if the modification or departure will be a matter of policy or regular practice. Assistant Attorney General, Deputy Attorney General.
9-27.300 Approval is required not to file a sentencing enhancement under 21 U.S.C. § 851 (unless the failure to file the sentencing enhancement would not affect the applicable guideline range). United States Attorney, Chief AUSA, or senior supervisory criminal AUSA.
9-27.400 Prior approval is required to dismiss readily provable charges. United States Attorney, or other designated supervisory level attorney.
9-27.400 Prior approval is required to seek a departure other than one listed in Chapter 5, Part X of the United States Sentencing Guidelines. United States Attorney, or other designated supervisory level attorney.
9-27.400 Prior approval to file a 5K1.1 motion for downward departure based upon substantial assistance. United States Attorney, Chief AUSA, or senior supervisory criminal AUSA.
9-27.640 Prior Approval is required to enter into a nonprosecution agreement in exchange for cooperation when: 1) consultation or approval is required (by a statute or DOJ policy) for a declination of prosecution or dismissal of a charge with regard to which the agreement is to be made; or, 2) the person is a) a level federal, state, or local official, b) an official or agent of a federal investigative or law enforcement agency, or c) a person who is, or likely to become, of major public interest. Assistant Attorney General, Criminal Division.
9-27.641 Prior written approval is required to enter into multi-district (global) plea agreements. The United States Attorney in each affected district and/or Assistant Attorney General, Criminal Division, through the Policy and Statutory Enforcement Unit (AAG approval is needed only when there is a dispute between the USA's involved or when DOJ Criminal Division is involved in the case.).
USAM
SECTION
TYPE & SCOPE OF REPORTING, CONSULTING OR APPROVAL CONTACT
9-41.010 When a matter referred to the United States Attorney pursuant to 18 U.S.C. 3057(a) (report of bankruptcy fraud) by a judge, receiver or trustee is declined, 18 U.S.C. Section 3057(b) requires that the United States Attorney report the facts of the case to the Attorney General for his direction. This statutory directive is satisfied by providing the Fraud Section, Criminal Division, with a concise summary of the facts of the case and the reasons for declining it. Concurrence with the decision to decline may be presumed if no disagreement is expressed by the Fraud Section. Attorney General through Fraud Section, Criminal Division.
9-42.430 Consultation is required regarding prosecution or declination of a volunteer corporation under the Dept. of Defense Voluntary Disclosure Program. Federal Procurement Fraud Unit of the Fraud Section, Criminal Division.
9-42.451 Express approval is required before prosecutors enter into any plea bargains involving Health and Human Services (HHS) programs that would attempt to include a commitment to forgo or restrict administrative remedies of HHS. Health and Human Services.
9-47.110 Prior approval is required to institute an investigation or prosecution of cases involving alleged violations of Sections 103, 104, and 104A, and related violations of Section 102, of the Foreign Corrupt Practices Act (FCPA) of 1977 (15 U.S.C. (15 U.S.C. §§ 78m(b), 78dd-1, 78dd-2, 78dd-3). Fraud Section, Criminal Division.
9-59.000 Prior approval is required to file charges under the Economic Espionage Act, 18 U.S.C. § 1831 Assistant Attorney through the Counterespionage Section of the National Security Division.
9-60.700 Consultation is required before initiating prosecution relating to a hostage taking occurring within United States. Approval is required if the hostage taking occurred outside the United States. Assistant Attorney General, National Security Division, Counterterrorism Section.
9-60.1200 Consultation is required before instituting grand jury proceedings, filing an information, or seeking an indictment of a violation of 18 U.S.C. §§ 231-233, 2101, 2102 (civil disturbances and riots). Counterterrorism Section, National Security Division.
9-63.135 Air Piracy within the special aircraft jurisdiction of the United States: Consultation is required before dismissing, in whole or in part, an indictment, information, or complaint containing air piracy charges or entering into any agreement to forego an air piracy prosecution that occurred within the special aircraft jurisdiction of the United States. 49 U.S.C. § 46502(a) in whole or in part, an indictment, information, or complaint containing air piracy charges or entering into any agreement to forego an air piracy prosecution that occurred within the special aircraft jurisdiction of the United States. 49 U.S.C. § 46502(a). Counterterrorism Section, National Security Division.
9-63.181 Air Piracy outside the special aircraft jurisdiction of the United States: Approval is required to initiate a criminal investigation, commence grand jury proceedings, file an information or complaint, or seek the return of an indictment in matters involving overseas terrorism, including air piracy that occurs outside the special aircraft jurisdiction of the United States. Consultation is required before dismissing, in whole or in part, an indictment, information, or complaint containing air piracy charges or entering into any agreement to forego an air piracy prosecution that occurred outside the special aircraft jurisdiction of the United States. Counterterrorism Section, National Security Division.
9-63.221 Prior approval is required for indictments alleging a violation of 18 U.S.C. § 32(b) (Aircraft Sabotage). Assistant Attorney General, Criminal Division.
9-65.110 Telephonic notification is required immediately upon the initiation of any investigation under 18 U.S.C. § 1751. Counterterrorism Section, National Security Division.
9-65.200 Prosecutors are encouraged to consult when in doubt of the prosecutive merit of a case when relating to the security of the persons protected by 18 U.S.C. § 871 (President, Vice-President, etc). Counterterrorism Section, National Security Division.
9-65.200 Prior approval is required to dismiss complaints under 18 U.S.C. § 871, when the defendant is in custody under the Mental Incompetency Statutes. In all other § 871 cases, consultation is required prior to dismissing a count involving, or entering into any sentence commitment or other case settlement. Counterterrorism Section, National Security Division.
9-65.700 Notification is required immediately upon the initiation of an investigation under 18 U.S.C. § 351. Conterterrorism Section, Criminal Division.
9-65.811 Notification is required prior to arrest or indictment of members of Taiwan's Coordination Council for North American Affairs (CCNAA). Counterterrorism Section, National Security Division.
9-69.200 Prior approval is required for investigations or prosecutions of perjury before Congress and contempt of Congress. See also USAM 9-90.550. (additional approval requirement regarding contempt of Congress relating to national security). Fraud Section, Criminal Division.
9-69.200 Consultation is required before prosecuting an individual for perjury committed during a trial that resulted in acquittal. Criminal Division through the Section having supervisory responsibility for the original offense charged.
9-69.460 Written approval is required before initiating a prosecution for a violation of 18 U.S.C. § 1073 (Flight to Avoid Prosecution, Custody, Confinement, or Giving Testimony). Attorney General, Deputy Attorney General, Associate Attorney General, or Assistant Attorney General, through Policy and Statutory Enforcement Unit, Office of Enforcement Operations.
USAM
SECTION
TYPE & SCOPE OF REPORTING, CONSULTING OR APPROVAL CONTACT
9-72.100 Approval is required of applications for S nonimmigrant visa classification. Assistant Attorney General, Criminal Division, through the Office of Enforcement Operations, and the Department of Homeland Security.
9-73.801 Prior consultation is required to institute proceedings to revoke naturalization under 8 U.S.C. § 1451. Office of Immigration Litigation, Civil Division.
9-75.010 CEOS and the Organized Crime and Gang Section jointly authorize RICO prosecutions that involve a predicate offense of obscenity, sexual exploitation of children or the transportation of children for illegal sexual activities. See also USAM chapter 9-110. Child Exploitation and Obscenity Section; Organized Crime and Gang Section.
9-75.030 Prior to initiating any activity in a district related to an investigation or prosecution, CEOS shall notify the United States Attorney for that District. If the United States Attorney objects to CEOS initiating the activity, the matter shall be resolved by the Deputy Attorney General. USAOs shall inform CEOS of all significant investigations and cases being prosecuted in the district as well as all significant judicial decisions issued in such cases. Child Exploitation and Obscenity Section; Organized Crime and Gang Section.
9-75.030 Notify CEOS re criminal investigations of sex trafficking of minors under 18 U.S.C. § 1591. See USAM 8-3.120. Child Exploitation and Obscenity Sections, Criminal Division.
9-75.100 In cases in which the target conducts business or commits the charged crimes in more than one district, USAOs shall notify CEOS prior to instituting charges against, or entering into a plea agreement with, the target. In cases where there are multiple targets who may be located in different districts, the USAO shall notify CEOS and the Child Exploitation and Obscenity Coordinator in the other districts prior to instituting charges against a target. This notification should occur as early in the investigative stage as possible to permit early resolution of venue issues, if any. Child Exploitation and Obscenity Section, Criminal Division.
9-75.110 CEOS shall be consulted during the development of a nationwide investigation (i.e., an investigation likely to have an impact in all or most of the districts) that will be supervised by a USAO attorney. The supervising attorney, whether from CEOS or USAO, shall notify all United States Attorneys of the nationwide investigation prior to its implementation. The supervising attorney conducting a nationwide investigation shall notify the Child Exploitation and Obscenity Coordinator in each district where a potential defendant is located as soon as that information is developed, and keep CEOS and the involved Coordinators apprised as to the progress of the investigation. Child Exploitation and Obscenity Section, Criminal Division.
9-76.110 Consultation is required regarding settlement proposals under the Federal Aviation Act of 1958. Federal Aviation Administration.
9-79.100 Consultation is required before prosecuting persons for violations of 18 U.S.C. § 2421 et seq., other than those engaged in commercial prostitution enterprises such as panderers, operators of houses of prostitution, or call-girl operations, and those acting for or in association with such persons. Child Exploitation and Obscenity Section, Criminal Division.
9-79.400 Notification is required before declining to prosecute failure to register with the Selective Service. 18 U.S.C. App. § 462 Consultation is required prior to dismissing a count involving, or entering into any sentence commitment or other case settlement in a case involving failure to register with the Selective Service. 50 U.S.C. App. § 462. Policy and Statutory Enforcement Unit, Office of Enforcement Operations, Criminal Division.
9-79.410 Consultation is required before instituting grand jury proceedings, filing an information, or seeking an indictment for the offense of desecration of the flag. Fraud Section, Criminal Division.
9-79.420 Consultation is required before instituting grand jury proceedings, filing an information, or seeking an indictment of disclosure violations under 18 U.S.C. § 7213. Public Integrity Section, Criminal Division.
9-85.200 Prior approval (certification) is required for a prosecution of an offense under 18 U.S.C. § 245. Consultation is required before an investigation beyond a preliminary inquiry is requested, and before instituting grand jury proceedings based upon a federally protected activity identified in 18 U.S.C. § 245. Attorney General or Deputy Attorney General, through the Public Integrity Section, Criminal Division or the Criminal Section of the Civil Rights Division.
9-85.210 Consultation is required in all federal criminal matters that focus on violations of federal or state campaign financing laws, federal patronage crimes, and corruption of the electoral process. These offenses include, but are not limited to, offenses described in: 18 U.S.C. §§ 241 to 242, 245, 592 to 611; 42 U.S.C. §§ 1973i(c), 1973i(e), and 1973gg-10; 2 U.S.C. §§ 431 to 455; and prosecutive theories that focus on corruption of electoral processes or campaign fundraising violations using 18 U.S.C. §§ 1341, 1343, and 1346; 18 U.S.C. § 1952; 18 U.S.C. §§ 1956 and 1957. With regard to federal campaign matters arising under 2 U.S.C. §§ 431-455, consultation is required before any inquiry is requested or conducted. With regard to all other election-related investigations (other than those described in 9-85.200 (Federally Protected Activities)), consultation is required before an investigation beyond a preliminary inquiry is requested, and before instituting grand jury proceedings, filing an information, or seeking an indictment. See also USAM 9-90.020, which requires consultation with the Internal Security Section before prosecuting 2 U.S.C. § 441e offenses. Public Integrity Section, Criminal Division.
9-85.220 Consultation is required before instituting grand jury proceedings, filing an information, or seeking an indictment for violations of 18 U.S.C. §§ 210 and 211 (Purchase and Sale of Public Office). Public Integrity Section, Criminal Division.
9-85.230 Consultation is required before instituting grand jury proceedings, filing an information, or seeking an indictment for violations of 18 U.S.C. § 1913 (Lobbying with Appropriated Funds). Public Integrity Section, Criminal Division.
9-85.240 All allegations received by United States Attorneys concerning any individuals covered by the Ethics in Government Act (28 U.S.C. § 591) must be referred to the Department. Public Integrity Section, Criminal Division.
USAM
SECTION
TYPE & SCOPE OF REPORTING, CONSULTING OR APPROVAL CONTACT
9-90.020 Express prior approval is required for prosecution of offenses involving national security. Consultation is required before an arrest is made, search warrant is obtained, grand jury investigation is commenced, immunity is offered, indictment is presented, a prosecution is declined or an adverse ruling or decision is appealed in cases affecting national security. The following statutes are encompassed by these prior approval and consultation requirements when they relate to national security. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 1) 2 U.S.C. § 192, Contempt of Congress Related to National Security. See also 9-69.200 regarding other contempts of Congress. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 2) 2 U.S.C. § 261 et seq. Federal Regulation of Lobbying Act. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 3) 8 U.S.C. § 1185(b) and 18 U.S.C. §§ 1542-1544, Travel Controls of Citizens. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 4) 18 U.S.C. § 219 et seq., Officers and employees of United States Acting as Foreign Agents; and Conflicts of Interest. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 5) 18 U.S.C. § 791 et seq., Espionage; Unauthorized Disclosure of Classified Information. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 6) 18 U.S.C. § 952 et seq., Neutrality Laws. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 7) 18 U.S.C. § 1001, False Statements concerning membership in organizations advocating violent overthrow of government. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 8) 18 U.S.C. § 1030(a)(1), Computer Espionage. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 9) 18 U.S.C. § 1071 et seq., Harboring. Assistant Attorney General, Criminal Division, through Organized Crime and Gang Section.
9-90.020 10) 18 U.S.C. § 1073, Flight to Avoid Prosecution or Giving Testimony. Assistant Attorney General, Criminal Division, through Organized Crime and Gang Section.
9-90.020 11) 18 U.S.C. § 1501 et seq., Obstruction of Justice. Assistant Attorney General, Criminal Division, through Organized Crime and Gang Section.
9-90.020 12) 18 U.S.C. § 1542 et seq., Passport Violations Related to National Security. Assistant Attorney General, Criminal Division, through Human Rights and Special Prosecutions Section (HRSP).
9-90.020 13) 18 U.S.C. § 2151 et seq., Sabotage. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 14) 18 U.S.C. § 2381 et seq., Treason, Sedition and Subversive Activities. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 15) 18 U.S.C. § 2383, Inciting, Assisting or Engaging in Rebellion or Insurrection. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 16) 18 U.S.C. § 2385, Smith Act. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 17) 18 U.S.C. § 2386, Voorhis Act. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 18) 18 U.S.C. § 3150, Jumping Bail. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 19) 22 U.S.C. § 611 et seq, Foreign Agents Registration Act. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 20) 42 U.S.C. § 2273 et seq, Atomic Energy Act. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 21) 50 U.S.C. § 783 et seq, Communication of Classified Information by Government Officer or Employee. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 22) 50 U.S.C. § 851-857, Registration of persons who have knowledge and received training in espionage. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 23) 50 U.S.C. § 421, Intelligence Identities Protection Act. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 24) 50 U.S.C. § 1701 et seq, International Emergency Economic Powers Act. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 25) 50 U.S.C. § 2401 et seq, Violations of the Export Administration Arms Export Control Act. 22 U.S.C. § 2778. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 26) 50 U.S.C. App. § 5(b), Trading with the enemy. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 Consultation is required in cases in which classified information plays a role in the prosecutive decision and for use of the Classified Information Procedures Act. Assistant Attorney General, National Security Division, through Counterespionage Section.
9-90.020 Consultation is required before initiating a prosecution under 2 U.S.C. § 441e, § 441e, Campaign Contributions by Foreign Nationals. See also USAM 9-85.210, which requires consultation with the Public Integrity Section before initiating any investigation under this section. Assistant Attorney General, National Security Division, through Counterespionage Section, Registration Unit.
9-90.100 The USAO National Security Coordinator must notify the Internal Security Section when national security issues arise in the course of prosecutions of offenses not related to the national security. Attorney General, Deputy Attorney General, Assistant Attorney General, National Security Division, through Chief, Counterespionage Section.
9-90.210 Approval is required to request to search an Intelligence Community (IC) file in connection with a National Securityinvestigation or prosecution. United States Attorney or a senior designee AND the Counterespionage Section, National Security Division.
9-90.230 Prior to any grand jury appearance by a target who is an intelligence officer, asset, or other employee of the intelligence community, consultation with the intelligence agency whose information may be disclosed by the target's testimony is required. Relevant Intelligence Agency through the Counterespionage Section, National Security Division.
9-90.240 Notification is required if a district court or appellate court will not accept a substitution proposed by the government under CIPA section 6(c). Counterespionage Section, National Security Division.
9-90.240 Approval is required to file an interlocutory appeal under section 7(a) of CIPA. Counterespionage Section, National Security Division.
9-90.240 Notification is required if it becomes likely that an intelligence agency employee will testify in any criminal case. Counterespionage Section, National Security Division.
USAM
SECTION
TYPE & SCOPE OF REPORTING, CONSULTING OR APPROVAL CONTACT
9-105.300 Prior approval is required before commencement of investigation where jurisdiction to prosecute is based solely on extraterritorial jurisdiction provisions of 18 U.S.C. §§ 1956 and 1957. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-105.300 Prior approval is required to prosecute under 18 U.S.C. § 1956(a)(1)(A)(ii) when the sole or principal purpose of the financial transaction was to evade the payment of taxes. See also 9-105.750. Assistant Attorney General, Tax Division.
9-105.300 Prior approval is required to prosecute attorneys under 18 U.S.C. § 1956 or § 1957 when the financial transaction is one involving attorneys' fees. See also 9-105.600 et seq. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-105.300 Prior approval is required before filing of criminal indictment or complaint in which a financial institution would be named as defendant or unindicted co-conspirator. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-105.310 Notification (by sending a copy of indictment or complaint) is required of all criminal cases that include charges under 18 U.S.C. § 1956 or § 1957, and all forfeiture cases involving 18 U.S.C. § 981 or § 982. Following sentencing, prosecutors should provide notification regarding the disposition of the case. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-105.320 Notification is required of all convictions of financial institutions, or any officer, director, or employee of a financial institution, for the following offenses: 18 U.S.C. §§ 1957 or 1960, or 31 U.S.C. § 5322. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-105.330 Consultation is required before filing a civil or criminal forfeiture action when forfeiture of a business is sought under the theory that business facilitated money laundering offenses. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-105.330 Consultation is required before filing civil action under § 1956(b) against business entity. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-105.330

Criminal Resource Manual 2187

Consultation is required before filing an indictment or complaint when conduct to be charged as "specified unlawful activity" under 18 U.S.C. § 1956 and § 1957 consists primarily of one or more financial offenses or fraud offenses, and when the financial and money laundering offenses are so closely connected that there is no clear delineation between the underlying financial crime and the money laundering offense. Such prosecutions must be authorized by the district's United States Attorney and must be reported to AFMLS. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-105.330

Criminal Resource Manual 2187

Consultation is required before filing an indictment or complaint when the conduct to be charged as money laundering under 18 U.S.C. § 1956(a)(1)(A)(i) consists of a financial transaction alleged to have promoted the "specified unlawful activity" that generated the proceeds, and where both money laundering and the "specified unlawful activity" itself are being charged as offenses. Such prosecutions must be authorized by the district's United States Attorney and must be reported to AFMLS. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-105.330 Consultation is required prior to filing an indictment or complaint when the conduct to be charged as money laundering under § 1956 or § 1957, or when the basis for a forfeiture action under § 981 consists of the deposit of proceeds of specified unlawful activity into a domestic financial institution account that is clearly identifiable as belonging to the person(s) who committed the specified unlawful activity. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-105.750 Approval for use of specific intent language set forth in 18 U.S.C. § 1956(a)(1)(A)(ii) in proposed indictment when 1) indictment contains charges for which Tax Division authorization is required and 2) the intent to engage in conduct constituting a violation of 26 U.S.C. § 7201 or 26 U.S.C. § 7206 is the sole or principal purpose of the financial transaction which is the subject of the money laundering count. See also 9-105.300. Assistant Attorney General, Criminal Section, Tax Division.
9-110.101 Prior approval is required to file a RICO criminal indictment or information or civil complaint, or to issue a civil investigative demand. Organized Crime and Gang Section, Criminal Division.
Criminal Resource Manual 2084 Prior approval is required to file a motion for a restraining order in a RICO prosecution. Organized Crime and Gang Section, Criminal Division.
9-110.801 Prior approval is required before any criminal prosecution under 18 U.S.C. § 1959 may be initiated by indictment or information. Organized Crime and Gang Section, Criminal Division.
9-111.124 The USAO must consult with the Asset Forfeiture and Money Laundering Section prior to filing an indictment, information, or complaint in any forfeiture action against, seeking the seizure of, or moving to restrain an ongoing business. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-111.600 Approval is required to retain cash in the amount of $5,000 or more for evidentiary purposes. Chief, Asset Forfeiture and Money Laundering Section, Criminal Division.
9-112.110 Approval is required for the judicial forfeiture of property that would otherwise be forfeited administratively in cases that are not covered by the exception for compelling prosecutorial considerations or the exception for aggregation of seized property. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-112.240 Prior approval is required for a pre-indictment ex parte application for a temporary restraining order in criminal forfeiture cases. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-113.103 Consultation is required before entering into settlements or plea agreements that return property that is the subject of administrative forfeiture proceedings. Seizing Agency and U.S. Marshals Service.
9-113.107 Approval is required for any settlement which provides for unsecured partial payments. Asset Forfeiture and Money Laundering Section, Criminal Division, in consultation with the U.S. Marshals Service.
9-113.200 The Chief of the Asset Forfeiture and Money Laundering Section has authority to approve any forfeiture settlement where:

(1) the amount involved exceeds $500,000 but does not exceed $5 million, and the amount to be released exceeds 15 percent of the amount involved, unless the amount to be released is more than $2 million; or

(2) the amount involved exceeds $5 million, unless the amount to be released exceeds 15 percent of the amount involved and is more than $2 million.

Approval: Asset Forfeiture and Money Laundering Section, Criminal Division.
9-113.200 The Deputy Attorney General must approve any forfeiture settlement where the amount to be released exceeds 15 percent of the amount involved and is more than $2 million. Approval: Deputy Attorney General.
9-113.800 Written approval is required of any agreement to pay liens and mortgages to a lienholder prior to forfeiture under the Expedited Forfeiture Settlement Policy for Mortgage Holders. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-116.170 Approval is required to adopt state or local seizures directly for judicial forfeiture. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-116.500 Approval is required to transfer real property to state or local agencies for further transfer to other government agencies or non-profit agencies for use in the Weed and Seed Program. Deputy Attorney General or designee, through Asset Forfeiture and Money Laundering Section.
9-116.400 Prior approval is required to share internationally. Attorney General and Secretary of State through the Asset Forfeiture and Money Laundering Section, Criminal Division.
9-117.210 Prior approval is required to use funds from the Assets Forfeiture Fund to pay Equal Access to Justice (EAJA) awards arising from actions related to the forfeiture of property. Asset Forfeiture and Money Laundering Section, Criminal Division.
Chapter 9-118.000
and 9-116.210
Approval is required of equitable sharing in the following circumstances: (1) in cases involving $1 million or more in forfeited assets; (2) in multi-district cases; and (3) in cases involving real property transfers to a state or local agency for law enforcement related use. Deputy Attorney General or designee.
Chapter 9-118.000 Approval is required for allocations from the Assets Forfeiture Fund to program participants for statutorily designated uses. Deputy Attorney General or designee.
9-118.400 Approval is required of a seizing agency's decision to place property into the agency's own official use, if the liens on the property equal $25,000 or one-third of the value, whichever is greater. Chief, Asset Forfeiture and Money Laundering Section, Criminal Division.
9-118.400 Approval is required of the U.S. Marshals Service's decision to place personal property into official use by non-participating federal agencies, if: (1) the property is $25,000 or more in value; or (2) liens on the property equal or exceed $25,000, or one-third of the value, whichever is greater. Chief, Asset Forfeiture and Money Laundering Section, Criminal Division.
9-118.400 Approval is required for the placement of real property into official use by any federal agency. Attorney General.
9-119.010 and
Chapter 9-120.000
Prior approval to institute a criminal or civil forfeiture proceeding to forfeit an asset transferred to an attorney as fees for legal services. Assistant Attorney General, Criminal Division, through the Asset Forfeiture and Money Laundering Section.
9-119.010 and
Chapter 9-120.000
Prior approval to enter into a formal or informal, written or oral agreement to exempt an asset transferred to an attorney as fees for legal services from forfeiture, including the exemption of certain assets to pay attorneys' fees which are restrained as substitute assets. Assistant Attorney General, Criminal Division, through the Asset Forfeiture and Money Laundering Section.
9-119.010 The USAO must notify the Asset Forfeiture and Money Laundering Section when it learns (or the U.S. Marshals Service learns) that a restrained or seized business is losing money, has insufficient equity, or will be sold at a loss. Asset Forfeiture and Money Laundering Section, Criminal Division.
9-119.010 The Asset Forfeiture and Money Laundering Section must give approval before serving a restraining order, seizure warrant, or warrant of arrest on a correspondent bank account under 18 U.S.C. § 981(k) (the chief of the Asset Forfeiture and Money Laundering Section will get concurrence from the director of the Office of International Affairs). Asset Forfeiture and Money Laundering Section, with concurrence from Office of International Affairs, Criminal Division.
9-119.010 The Office of International Affairs must give written approval before the USAO may issue summonses or subpoenas to foreign banks that maintain accounts with correspondent banks in the United States to obtain records. Office of International Affairs, Criminal Division.
USAM
SECTION
TYPE & SCOPE OF REPORTING, CONSULTING OR APPROVAL CONTACT
9-131.030 Consultation is required prior to criminal prosecution by filing an information or complaint, or seeking an indictment under 18 U.S.C. § 1951 (Hobbs Act) in cases involving labor-management disputes. Organized Crime and Gang Section, Labor Management Unit, Criminal Division.
9-138.030 Consultation is required prior to instituting grand jury proceedings, filing an information, or seeking an indictment under either 29 U.S.C. § 504 or 29 U.S.C. § 1111. Organized Crime and Gang Section, Labor Management Unit, Criminal Division.
9-138.040 Consultation is recommended with respect to convicted individuals who seek relief from the employment disabilities at 29 U.S.C. § 504 (labor union positions and labor relations consultants) and 29 U.S.C. § 1111 (employee pension and welfare benefit plan positions and consultants) which are imposed on individuals by operation of statute following sentencing. Organized Crime and Gang Section, Labor Management Unit, Criminal Division.
9-139.103 Consultation is required prior to initiating prosecution under the Railway Labor Act. Consultation is recommended at the investigative stage because of the policy limiting prosecution. Organized Crime and Gang Section, Labor Management Unit, Criminal Division.

[updated April 2014]