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Criminal Resource Manual

155. Non-Department of Justice Government Attorneys

Requests for appointments of non-Department of Justice government attorneys as Special Assistant United States Attorneys must be made in writing through the Director of the Executive Office for United States Attorneys and must include the following information:

  1. The facts and circumstances of the case;
  2. The reasons supporting the appointment;
  3. The duration and any special conditions of the appointment;
  4. Whether the appointee may be called as a witness before the grand jury.If such a possibility exists, it ordinarily would be unwise to make the appointment;
  5. How the attorney has been informed of the grand jury secrecy requirements in Federal Rule of Criminal Procedure 6(e).
  6. If the appointee is an agency attorney, whether the agency from which the attorney comes is conducting or may conduct contemporaneous administrative or other civil proceedings.If so, a full description of the substance and status of such proceedings should be included; and
  7. If the appointee is an agency attorney, a full description of the arrangements that have been made to prevent the attorney's agency from obtaining access through the attorney to grand jury materials in the case.

Finally, the request must contain the following statement, signed by the agency attorney:

I understand the restrictions on the grand jury secrecy obligations of this appointment as a Special Assistant to the United States Attorney and do hereby certify that I will adhere to the requirements contained in this letter.

The use of agency attorneys as Special Assistants before the grand jury has been upheld by the courts. See United States v. Wencke, 604 F.2d 607 (9th Cir. 1979); United States v. Birdman, 602 F.2d 547 (3d Cir. 1979); In re Perlin, 589 F.2d 260 (7th Cir. 1978). The United States Attorney or Departmental attorney with responsibility for the case retains full responsibility, notwithstanding the participation of government attorneys from other agencies.

[updated October 2008] [cited in USAM 9-11.242]