Indictment and PreTrial Motions

• Pages: 131-161

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INDICTMENT AND PRETRIAL MOTIONS

This chapter addresses key procedural and substantive issues that arise

in the context of charging decisions made by the U.S. Department of

Justice (DOJ) Antitrust Division, and subsequent pretrial proceedings.

A. Indictments and Criminal Complaints

The Fifth Amendment states: “No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury.”1 Rule 7 of the Federal Rules of Criminal

Procedure requires that offenses punishable by imprisonment for more

than one year must be prosecuted by indictment unless waived by a

defendant. 2 As a matter of practice, defendants who plead guilty to

antitrust offenses agree to be charged by information rather than

indictment. All other defendants in criminal antitrust cases must be

charged by indictment because violations of the Sherman Act are felonies

punishable by prison terms of up to ten years.3

When the Antitr ust Division is se riously consider ing charging

corporations or individuals, it will usually advise them that they are

“targets” of the investigation. A “target” is defined as a person against

whom the prosecutor or the grand jury has substantial evidence linking

that person to the commission of a crime and who, in the prosecutor’s

judgment, is a putative defendant.4 As the staff of the Antitrust Division is

finalizing its memorandum recommending an indictment, it will usually

advise targets and give them an opportunity to make a presentation to the

staff’s section or office chief.5 Putative defendants have no absolute right

1. U.S. CONST. amend. V.

2. FED. R. CRIM. P. 7(a)(1)(B), 7(b).

3. 15 U.S.C. §1.

4. U.S. DEP’T OF JUSTICE, JUSTICE MANUAL § 9-11.151 (2018) [hereinafter

JUSTICE MANUAL], available at http://www.usdoj.gov/jm/jm-9-11000-

grand-jury# 9-11.151.

5. ANTITRUST DIV., U.S. DEP’T OF JUSTIC E, ANTITRUST DIVISIO N MANUAL at

III-119 (5th ed. 2012) (last updated Apr. 2018) [hereinafter ANTITRUST DIV.

132 International Antitrust Cartel Handbook

to be heard by Antitrust Division supervisory officials in Washington, but

they ordinarily receive a chance to meet with the Director of Criminal

Enforcement and the Deputy Assistant Attorney General for Criminal

Enforcement.6

Indictments are normally public documents. But in cases involving

foreign national individuals, sometimes the Antitrust Division will have

indictments placed under seal on the basis that disclosure could hinder the

apprehension of the defendant.7 Also, on occasion, the Antitrust Division

will charge an individual on an expedited basis by having an agent swear

out a criminal complaint—a written statement of the essential facts

constituting the offense charged, made under oath before a judicial officer,

normally a magistrate judge.8 If the complaint and accompanying affidavit

establish probable cause that the defendant committed an offense, the

judge must issue an arrest warrant.9

This procedure has been used in cases when the Antitrust Division

learns that a foreign national who is a target of an investigation and on a

border watch is entering the United States. The criminal complaint allows

the Antitrust Division to move quickly—far more quickly than would be

possible using a grand jury—to charge the individual and secure an arrest

warrant so that the individual can be arrested before leaving U.S.

jurisdiction.

For example, in a cartel investigation involving aftermarket auto

lights, the Antitrust Division learned that an executive from Taiwan who

was a target was scheduled to transit through Los Angeles International

Airport (LAX) on his way to Mexico and Central America. The executive

had rejected a plea offer and through his counsel had said he was

considering staying in Taiwan beyond the reach of U.S. prosecutors.10 The

executive was arrested at LAX on the basis of a criminal complaint

MANUAL], available at available at https://www.justice.gov/atr/

file/761166/download.

6. Id.

7. See, e.g., Indictment, United States v. Isawa, No. 15-00163 (N.D. Cal. Mar.

12, 2015), available at https://www.justice.gov/atr/case/us-v-takuro-

isawa.

8. FED. R. CRIM. P. 4.

9. Id.

10. See Sentencing Memo. at 2, United States v. Hsu, No. 11-00488 (N.D. Cal.

Jan. 15, 2013).