9-2.000 - Authority Of The U.S. Attorney In Criminal Division Matters/Prior Approvals

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 JM 9-2.010;
2. Causing investigations to be conducted by the appropriate federal law enforcement agencies, see JM 9-2.010;
3. Declining prosecution, see JM 9-2.020;
4. Authorizing prosecution, see JM 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 JM 9-2.170;
7. Dismissing prosecutions, see JM 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 JM 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 JM 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.

[updated June 2018] [cited in JM 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 JM 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 JM 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.

[updated January 2020] [cited in JM 9-2.001]

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, JM 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, JM 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, JM 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 using a form available to Department attorneys. 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 cannot 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. 741 (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 January 2020] [cited in JM 5-11.113; JM 9-2.112; JM 9-27.230]

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 Director of the Office of Enforcement Operations, 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 Director of the Office of Enforcement Operations, 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. A form by which to provide notification is available to Department attorneys.
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 Justice 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 JM 3-1.140.
   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 July 2020]

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 JM 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 JM 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 JM 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, JM 9-27.000.

[cited in JM 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 JM 9-2.170. See also JM 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 JM 9-2.111 and 9-2.112. The policy limitations are listed in JM 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.

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 18, 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/sh 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 besent to the United States Trustee Program.

[updated August 2017]

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 JM 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 JM 9-69.460. This approval requirement also applies to cases involving custody disputes. See JM 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 JM 9-2.031 (Petite Policy).

Violations of 18 U.S.C. § 1119 (Foreign Murder of U.S. Nationals) may be prosecuted only upon formal approval in writing by the Attorney General, the Deputy Attorney General, or an Assistant Attorney General, after consultations with the Secretary of State.  The Attorney General has delegated responsibility for approval to the Assistant Attorney General for the Criminal Division.  Accordingly, under no circumstances should an indictment under this section be sought, nor an information be filed without the written approval of the Assistant Attorney General, Criminal Division. Requests for written approval to prosecute should be forwarded to the Human Rights and Special Prosecutions Section. See JM 9-141.000.

[updated June 2018] [cited in JM 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 Justice 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. 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 JM 9-2.030; JM 9-2.100]

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

A. 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).

B. 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 Railroads and Mass Transportation Systems (18 U.S.C. § 1992)
   • 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. § 960A)
   • 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)
   • 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)

C. 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-Counterintelligence and Export Control 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.

D. 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 JM Chapter 1-13.000.

E. 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.

F. 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.

G. 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.

H. 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.

I. 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.

J. 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.

K. Guidance Relating to Charging Certain Transnational Criminal Organizations with Terrorism and Other National Security Offenses

The Attorney General issued a guidance memorandum on July 21, 2020.  The existing JM provisions relating to any consultation or approval requirements for terrorism and other national security offenses remain unchanged, so please refer to the relevant JM section(s) for the applicable requirements.

[updated January 2021] [cited in JM 9-60.700; JM 9-63.181; JM 9-63.221; JM 9-65.811]

9-2.137 - Notification, Consultation, and Approval Requirements in Matters Involving Domestic Violent Extremism, Including Domestic Terrorism

A. The Need for a Consistent and Coordinated National Enforcement Strategy for Domestic Violent Extremism-Related Matters.

Domestic violent extremism (DVE), including domestic terrorism, poses one of the most significant threats to our nation.  It is imperative that the Department take a robust and coordinated approach in responding to this threat, including by ensuring that timely and relevant information is shared among law enforcement; allocating appropriate resources; and pursuing charges and sentences in a manner that is consistent across jurisdictions.  Effective coordination of DVE-related matters is particularly critical where threats arise in connection with movements and groups whose existence spans multiple jurisdictions or even the entire nation.  This policy is aimed at ensuring the National Security Division is involved in decisions that implicate national interests, while otherwise deferring to USAOs under the authority of United States Attorneys.

B. Definition of DVE-Related Matters.

To ensure appropriate coordination and consistency for such investigations and cases, the phrase “DVE-related matters” is defined to include all matters related to violent criminal acts in furtherance of ideological goals stemming from domestic influences, such as racial bias, anti-authority, and anti-government sentiment.  If an investigation or criminal case (a) involves suspected DVE, including domestic terrorism, or (b) bears a material nexus to DVE, USAOs shall designate it as DVE-related.  Such investigations and cases include the following:

1. Any investigation or case involving conduct that meets the definition of domestic terrorism, as set forth in 18 U.S.C. § 2331(5);
2. Any investigation designated as a domestic terrorism or domestic violent extremism investigation by the FBI (including, but not limited to, any investigation assigned a “100,” “266,” or “336” case classification by the FBI); and
3. Any investigation or case where a subject or target is believed to have engaged in or attempted to have engaged in DVE-related conduct in the past, if that conduct is reasonably expected to be referenced in connection with the current investigation or case (e.g., in pleadings, hearings, reports prepared by U.S. probation or pretrial services officers, sentencings, or press releases).

C. Notice and Designations in DVE-Related Matters.

Notice Upon Initiation.  USAOs shall notify the Counterterrorism Section (CTS) in the National Security Division of all DVE-related matters as soon as practicable, except in criminal civil rights matters described further in Section F.  Where CTS becomes aware of a DVE-related matter that has not been identified as such by a USAO, CTS shall notify the relevant office(s), and the matter will be designated as DVE-related going forward.

Any DOJ component that becomes aware of information that may be relevant to a DVE-related matter pending in a USAO, including relevant investigative action that may be planned in another district, shall coordinate with the originator of that information to share the information directly with CTS and/or the USAO as soon as practicable and to the fullest extent possible.

Designation by the Assistant Attorney General for National Security.  As soon as practicable after receiving notification or becoming aware of a DVE-related matter, the Assistant Attorney General for National Security or his or her designee shall designate the matter as a Category 1 DVE-related matter or a Category 2 DVE-related matter.  CTS shall notify the USAO of the designation as soon as practicable.

Category 1.  A Category 1 DVE-related matter is one that (1) involves a violation or potential violation of a statute listed in JM Section 9-2.136(B)(1) and is not an international terrorism matter; (2) involves conduct that resulted in death to any individual or serious bodily injury to multiple individuals; or (3) otherwise implicates, as determined by the Assistant Attorney General in consultation with the relevant United States Attorney(s) and/or other Assistant Attorneys General, significant national interests, such as the coordination of investigations across multiple jurisdictions, the uniform application of the law, or other substantial policy considerations.

Category 2.  A Category 2 DVE-related matter is any other DVE-related matter not designated under Category 1.  USAOs are in the best position to handle matters that do not involve the national interests in Category 1, except in the two narrow instances described in Section E. 

D. Prior Express Approvals Required in Category 1 DVE-Related Matters.

Significant Filings.  Subject to Section F, prior express approval by the Assistant Attorney General for National Security or his or her designee is required for the following actions in Category 1 DVE-related matters, unless the Assistant Attorney General advises the USAO that he or she does not wish to exercise approval authority with regard to a particular action or category of actions in the matter:

1. Filing an application for a search warrant or a Title III wiretap.
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. Offering or accepting a plea agreement.
6. Dismissing a charge for which the Assistant Attorney General’s approval was initially required.
7. Filing a sentencing memorandum.
8. Any court filing that contains descriptions of a nexus of the subject/defendant, or of the conduct under investigation, to DVE and/or groups engaged in DVE, unless the court filing includes a description that has already been approved by the Assistant Attorney General (or his or her designee) in a document previously filed in that matter.
9. Other specific court filings as requested by the Assistant Attorney General.

Where prior approval by the Assistant Attorney General is required, the USAO should make the application for approval through CTS. 

Additional Guidance for Approval of Indictments, Informations, and Complaints.  For approval of any indictment, information, or complaint, submission to CTS of a prosecution memorandum and a copy of the proposed filing 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 approval from the Assistant Attorney General for National Security 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.

Application of U.S.S.G. § 3A1.4.  In addition to obtaining approval for arguing that the sentencing enhancement pursuant to U.S.S.G. § 3A1.4 applies, or for seeking an upward departure pursuant to Application Note 4 of that provision, the USAO in any Category 1 DVE-related matter shall notify CTS at least 14 days in advance of filing a sentencing memorandum if it has decided the enhancement does not apply or not to seek an upward departure.  The Assistant Attorney General for National Security or his or her designee, after consultation with the United States Attorney, may direct the USAO to argue the enhancement applies or to seek an upward departure if the Assistant Attorney General determines that doing so is necessary to vindicate the federal interests involved.  Other determinations and strategic decisions regarding sentencing should generally remain in the discretion of the USAO.

Staffing.  Given the compelling national interests implicated in Category 1 DVE-related matters, the Assistant Attorney General for National Security and the United States Attorney are encouraged to consider participation by attorneys from the USAO and CTS as co-counsel during the course of such investigations and prosecutions. 

E. Notifications and Prior Express Approvals Required in Category 2 DVE-Related Matters. 

For Category 2 DVE-related matters, USAOs shall keep CTS apprised of significant events in those cases, including the filing of criminal charges via complaint or indictment, plea resolutions, the initiation and results of any trials, sentencing disposition, and final appeals.  This reporting enables the Department to track important events in Category 2 matters without interfering with USAOs on issues that do not implicate nationwide coordination interests. 

Approvals Required to Ensure Proper National Coordination.  For Category 2 DVE-related matters, the following two areas require consultation with, and prior approval by, the Assistant Attorney General for National Security or his or her designee.  Both areas implicate national interests where the Department and USAOs must speak with one voice to ensure consistency and fairness in handling DVE matters:

1. Descriptions of DVE and Groups Engaged in DVE.  USAOs must submit for review and approval by CTS, prior to filing, any charging document or other court filing that contains descriptions of a nexus of the subject/defendant, or of the conduct under investigation, to DVE and/or groups engaged in DVE unless the descriptions used are identical to descriptions that CTS previously approved in a document previously filed in the matter.  CTS shall seek to ensure accuracy and consistency in such descriptions in filings nationwide. 
2. Application of U.S.S.G. § 3A1.4.  USAOs shall obtain express approval from the Assistant Attorney General for National Security or his or her designee prior to arguing that the sentencing enhancement pursuant to U.S.S.G. § 3A1.4 applies, or prior to seeking an upward departure pursuant to Application Note 4 of that provision.  However, in Category 2 DVE-related matters, USAOs need not notify or obtain approval from CTS when declining to argue an enhancement applies or to seek an upward departure.

F. Exceptions for DVE-Related Matters Involving Criminal Civil Rights Statutes.

Nothing in this Section shall be construed to alter or diminish the authorities of the Civil Rights Division pertaining to the enforcement of criminal civil rights statutes, as set forth in JM Section 8-3.000.  The fact that a criminal civil rights case is or may be DVE-related shall not alter or diminish the Civil Rights Division’s role in any such case. 

As such, the approval requirements pertaining to Category 1 DVE-related matters, as set forth in Section D, shall not apply where such matters involve violations or suspected violations of civil rights criminal statutes; provided, however, that the Civil Rights Division or a USAO must obtain approval from the Assistant Attorney General for National Security for any decision regarding the application of U.S.S.G. § 3A1.4 in any case.  Additionally, the Civil Rights Division shall consult with CTS regarding filings and other public descriptions of a nexus of a subject/defendant, or of the conduct under investigation, to DVE and/or groups engaged in DVE.

If CTS becomes aware of a DVE-related investigation or case that involves a violation or suspected violation of a civil rights criminal statute, CTS shall notify the Civil Rights Division as soon as practicable.  Likewise, if the Civil Rights Division becomes aware of a criminal civil rights case that is DVE-related, it shall notify CTS as soon as practicable.  In all cases implicating both civil rights and national security interests, the Civil Rights and National Security Divisions should endeavor to work collaboratively and leverage each Division’s areas of expertise.  

G. Organized Crime and Racketeering Provisions Unaffected.

Nothing in this Section shall be construed to alter or diminish the authorities of the Criminal Division pertaining to enforcement of the Racketeer Influenced and Corrupt Organizations (RICO) and the Violent Crimes in Aid of Racketeering (VICAR) statutes, as set forth in JM Section 9-110.00.  The fact that a RICO or VICAR case is or may be DVE-related shall not alter or diminish the Criminal Division’s role in any such case.  In all cases implicating RICO and/or VICAR and national security interests, the Criminal and National Security Divisions should endeavor to work collaboratively and leverage each Division’s areas of expertise.  To that end, the Assistant Attorney General for National Security shall consult with the Assistant Attorney General for the Criminal Division prior to designating any such case or investigation as a Category 1 DVE-related matter.

H. Exigent Circumstances.

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

[Updated November 2022]

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 JM 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, Child Soldiers Matters, and Female Genital Mutilation

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), female genital mutilation (18 U.S.C. § 116), 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 recruitment 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 JM 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, Female Genital Mutilation or Recruitment or Use of Child Soldiers

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

   1. charging or proving at sentencing torture (18 U.S.C. §§ 2340-2340B), a war crime (18 U.S.C. § 2441), genocide (18 U.S.C. §§ 1091-1093), female genital mutilation (18 U.S.C. § 116), 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, female genital mutilation or recruitment or use of child soldiers; or to prove that torture, a war crime, genocide, female genital mutilation, or recruitment or use of child soldiers was committed;
   3. proving a “serious human rights offense” under Sentencing Guideline § 2L2.2(b)(4) (defined as genocide, torture, war crimes, and the use or recruitment of child soldiers).


3. Notification Requirements

   Initiation. When the USAO opens any torture, war crimes, genocide, female genital mutilation, 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). 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 JM 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 JM 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; the filing of a sentencing memorandum relying on USSG § 2L2.2(b)(4); 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, female genital mutilation, 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, female genital mutilation, or recruitment or use of child soldiers, 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;
   7. proving a serious human rights offense under USSG § 2L2.2(b)(4) (defined as genocide, torture, war crimes, and the use or recruitment of child soldiers).

   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, complaint, or sentencing memorandum based on USSG § 2L2.2(b)(4) 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 or draft sentencing memorandum based on USSG § 2L2.2(b)(4)    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, female genital mutilation, 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, female genital mutilation, 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 April 2018]

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 JM 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 JM 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 JM 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. A Notice of Appeal form is available to Department attorneys.

   
   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. A Petition for Rehearing Extension form is available to Department attorneys.

   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 emailed to the Criminal Division’s Appellate Section, specifically, to the Appellate Section’s liaison to your district.  If you have materials that require shipment, please send them to that individual at the following address:

   Attorney’s Name
   Appellate Section, Criminal Division
   950 Pennsylvania Avenue, N.W.
   Suite 1264
   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 JM Title 2.

[updated January 2020]

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 Violent Crime and Racketeering 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 Violent Crime and Racketeering 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 JM 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 9-2.400 Prior Approvals Chartto criminal or civil proceedings.

9-2.400 - Prior Approvals Chart

[updated January 2021]