5-6.1 NEED FOR CONFIDENTIALITY OF REFERRALS
Department of Justice policy provides that criminal investigations may not be disclosed, absent unusual circumstances. Thus, the standard response to a question by the public, including the news media, of whether a matter has been referred for investigation or is under investigation should be: "We cannot either confirm or deny that such a matter has been referred or is under investigation." Any questions about indictments, pleas, and sentencing should be referred to the appropriate United States Attorney's office.
It is helpful to the system to have all criminal referrals processed through the United States Trustee's office. Where a panel trustee or a judge refers a criminal matter to the United States Trustee, he/she should be advised whether a referral was made. If the United States Trustee makes the referral, the panel trustee or judge does not have to make a duplicate referral. If the United States Trustee does not make a referral, the panel trustee or judge may have a duty under 18 U.S.C. § 3057 to make a referral if he/she has a reasonable suspicion that a crime has been committed. Pursuant to 18 U.S.C. § 3057, the panel trustee or judge has a right to make his/her complaint directly to the United States Attorney.
The United States Trustee should have an understanding with the United States Attorney for his/her district(s) on how complaints should be handled. Generally, United States Attorneys prefer that the United States Trustee offices screen complaints and be the central source for all referrals.
Once a referral is made, any information about the progress of an investigation should be on a strict, need-to-know basis and should be cleared with the United States Attorney.
Creditors and other individuals may provide information to the United States Trustee about criminal matters. If a referral has been made, the complainant should be advised that the matter has been referred and that they should contact the United States Attorney's office for further information. If a United States Trustee decides not to make a referral based on the complaint of a private party, the individual should be advised of that fact. That individual is then able to take any other action he/she deems necessary, including making his/her own direct complaint to the United States Attorney. As a practical matter, where a referral is made, the complaining party will learn some details of the investigation, since investigative agents will usually have to contact him/her for additional information about the complaint.
5-6.2 DISCOVERY OF A UNITED STATES TRUSTEE'S CRIMINAL REFERRAL
A United States Trustee's referral of a bankruptcy fraud should not be discoverable. "There is a qualified privilege against disclosing material in the file of a government law enforcement investigation, civil or criminal, if: . . . the investigation is pending or, although presently closed, has a substantial possibility of being reactivated, and revelation of the material may prejudice the success of the investigation or a proceeding to which the investigation is directed." United States v. Am. Tel. & Tel. Co., 86 F.R.D. 603, 639 (D.C. Cir. 1979); In re Stockbridge Funding, 153 B.R. 654 (Bankr. S.D.N.Y. 1993)(recognizing a "bankruptcy crime--investigation privilege" for trustee's communications with United States Attorney).
Any efforts by any party to discover the contents of a criminal referral should be reported to the United States Attorney and should be resisted unless the United States Attorney desires to release the referral. The United States Attorney, as part of the discovery or plea negotiations, may want or need to release a part or all of a referral. After a conviction, the criminal referral should be released to the United States Probation Office for use in the preparation of the pre-sentence report.