Appendix B: Excerpts From USAM Chapter 9-27.000 Principles of Federal Prosecution

• Author: Miriam Weismann
• Pages: 163-200

163

A B

EXCERPTS FROM USAM

CHAPTER 9-27.000

PRINCIPLES OF FEDERAL

PROSECUTION

9-27.000 (Excerpts)

PRINCIPL ES OF FEDE RAL PROSEC UTION -. Preface -. Purpose

-. Application -. Implementation -. Modifications or Departu res

-. Non-Litigability -. Initiating and Declining Prosecution—Prob-

able Cause Requirement -. Grounds for Commencing or Declining Pros-

ecution -. Initiating and De clining Charges—Substa ntial Federal Interest

-. Initiating and Decl ining Charges—Prosecution in A nother Jurisdiction

-. Non-Criminal Alternatives to Prosecution -. Initiating and Declining

Charges—Impermissible Considerations -. Records of Prosecutions Declined

-. Selecting Charges—Charging Most Serious Offenses -. Additional

Charges -. Pre-Charge Plea Agreements -. Plea Agreements G enerally

-. Plea Agreements—Considerations to be Weighed -. Selecting Plea

Agreement Charges -. Plea Agreements When Defendant Denies Gu ilt -.

Records of Plea Agreements -. Offers to Plead Nolo Contendere—Opposition

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164 Excerpts From USAM Chapter 9-27.000

Except in Unusual Circum stances 9-. Offers to Plead Nolo Contendere—Offer

of Pro of -. Arg ument i n Opposi tion of No lo Conten dere Plea  -. E ntering

into Non-prosecution Agreements in Return for Co operation—Generally -.

Entering into Non-prosecution Agreements in Return for Cooperation—Consider-

ations to be Weighed -. Entering into Non-prosecution Agreements in Return

for Cooperation—Limiti ng the Scope of Commitment -. Agreements Requir-

ing Assistant Attor ney General Approval -. Multi-District (Global) Agreement

Requests -. Records of Non-Prosecution Agreements -. Participation

in Sentencing—General ly -. Est ablishing Factual B asis for Sentence -.

Conditions for Making Sentencing Re commendations -. Consideration to be

Weighed in Determining Sentencing Recom mendations -. Unwarranted Sen-

tencing Departures by t he Court -. Disclosing Factual Materia l to Defense

-. Limitation on Identifying Uncharged T hird-Parties Publicly

-. Purpose

The principles of Federal prosecution set fort h herein are intended to promote the

reasoned exercise of prosecutorial discretion by attorneys for the government with

respect to:

. Initiating and decl ining prosecution;

. Selecting charges;

. Entering into plea ag reements;

. Opposing offers to plead nolo contendere;

. Entering into non-prosecution ag reements in return for cooperation; and

. Participat ing in sentencing.

B. Comment. Under the Federal criminal justice system, the prosecutor has wide

latitude in determining when, whom, how, and even whether to prosecute for

apparent violations of Federal criminal law.  e prosecutor’s broad discretion

in such areas as initiating or foregoing prosecutions, selecting or recommend-

ing speci c charges, and terminating prosecutions by accepting guilty pleas

has been recognized on numerous occasions by the courts. See, e.g., Oyler v.

Boles, 368 U.S. 448 (1962); Newman v. United States, 382 F.2d 479 (D.C. Cir.

1967); Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965), cert. denied, 384

U.S. 906 (1966).  is dis cretion exists by virtue of his/her status as a member

of the Executive Branch, which is charged under the Constitution with ensur-

ing that the laws of the United States be “faithfully executed.” U.S. Const. Art.

§ 3. See Nader v. Saxbe, 497 F.2d 676, 679 n. 18 (D.C. Cir. 1974).

Since Federal prosecutors have great latitude in making crucial decisions con-

cerning enforcement of a nationwide system of criminal justice, it is desirable,

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Excerpts From USAM Chapter 9-27.000 165

in the interest of the fair and e ective administration of justice in the Federal

system, that all Federal prosecutors be guided by a general statement of princi-

ples that summarizes appropriate considerations to be weighed, and desirable

practices to be followed, in discharging their prosecutorial responsibilities.

Although these principles deal with the speci c situations indicated, they

should be read in the broader context of the basic responsibilities of Federal

attorneys: making certain that the general purposes of the criminal law—

assurance of warranted punishment, deterrence of further criminal conduct,

protection of the public from dangerous o enders, and rehabilitation of

o enders—are adequately met, while making certain also that the rights of

individuals are scrupulously protected.

[cited in USAM 9-2.031]

-. Initiating and Declining Prosecution—Probable Cause

Requirement

A. If the attorney for the government has probable cause to believe that a person

has committed a Federal o ense within his/her jurisdiction, he/she should

consider whether to:

. Request or conduct furt her investigation;

. Commence or recommend prosecution;

. Decline prosecution and refer the matter for prosecutorial consideration

in another juris diction;

. Decline prosecution and i nitiate or recommend pretrial diversion or other

non-crimi nal disposition; or

. Decline prosecut ion without taking other action.

B. Comment. USAM 9-27.220 sets forth the courses of action available to the

attorney for the government once he/she has probable cause to believe that a

person has committed a Federal o ense within his/her jurisdiction.  e prob-

able cause standard is the same standard as that required for the issuance of an

arrest warrant or a summons upon a complaint (See Fed. R. Crim. P. 4(a)), for

a magistrate’ s decision to hold a defendant to answer in the district court (See

Fed. R. Crim. P. 5.1(a)), and is the minimal requirement for indictment by a

grand jury. See Branzburg v. Hayes, 408 U.S. 665, 686 (1972).  is is, of course,

a threshold consideration only. Merely because this requirement can be met in

a given case does not automatically warrant prosecution; further investigation

may be warranted, and the prosecutor should still take into account all rel-

evant considerations, including those described in the following provisions, in

deciding upon his/her course of action. On the other hand, failure to meet the

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