Preliminary proceedings

• Pages: 269-599

II. PRELIMINARY PROCEEDINGS

PROSECUTORIAL DISCRETION

The government has broad discretion to initiate and conduct criminal prosecutions

because of the separation of powers doctrine

696

and because prosecutorial decisions

are “particularly ill-suited to judicial review.”

697

As long as there is probable cause to

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PROCEEDINGS

696. See U.S. v. Armstrong, 517 U.S. 456, 464 (1996) (separation of powers requires broad prosecutorial

discretion); see, e.g., U.S. v. Lopez-Matias, 522 F.3d 150, 156 (1st Cir. 2008) (decision to depart from DOJ

guidelines in capital prosecution within “core executive constitutional function”(quoting Armstrong, 517 U.S.

at 465)); In re U.S., 945 F.3d 616, 627 (2d Cir. 2019) (decision to use “constitutional exercise of charging

discretion”not legitimate basis for jury nullification argument); U.S. v. Wright, 913 F.3d 364, 374 (3d Cir.

2019) (decision to retry a case is at discretion of prosecutor and court’s power to preclude prosecution is limited

by separation of powers); U.S. v. Torrez, 869 F.3d 291, 312 (4th Cir. 2017) (decision to use recidivism as

aggravator in capital case within prosecutor’s discretion); U.S. v. Jeong, 624 F.3d 706, 713 (5th Cir. 2010)

(decision to prosecute foreign national after government’s alleged waiver still within government’s discretion);

Loza v. Mitchell, 766 F.3d 466, 495 (6th Cir. 2014) (decision to charge defendant with murder after

codefendant distinguished on nonracial grounds within government’s discretion); U.S. v. Ribota, 792 F.3d 837,

840 (7th Cir. 2015) (decision to indict defendant for contempt after court granted defendant’s motion to

suppress within prosecutor’s “wide discretion”); U.S. v. White, 928 F.3d 734, 742 (8th Cir. 2019) (decision to

prioritize marijuana charges where drug still illegal under state law within government’s “broad discretion”);

U.S. v. Ayala-Bello, 995 F.3d 710, 716 (9th Cir. 2021) (decision to prosecute illegal entry on normal criminal

docket within government’s discretion); U.S. v. Dalton, 918 F.3d 1117, 1131 (10th Cir. 2019) (decision to deny

witness immunity in exchange for testimony proper discharge of prosecutor’s official duties); U.S. v. Cannon,

987 F.3d 924, 936-37, 939 (11th Cir. 2021) (decision to prosecute carries a presumption of regularity, as

prosecutors fall within a “special province”of executive branch); U.S. v. Meadows, 867 F.3d 1305, 1313 (D.C.

Cir. 2017) (decision to charge unemployment benefits fraud despite “general lack of similar prosecutions”

within government’s discretion).

697. Wayte v. U.S., 470 U.S. 598, 607 (1985) (finding court ill-equipped to evaluate strength of case,

prosecution’s general deterrence value, government’s enforcement priorities, and case’s relationship to

government’s overall enforcement plan); see also Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S.

471, 489-90 (1999) (broad prosecutorial discretion appropriate in deportation proceeding because court ill-

equipped to judge authenticity or adequacy of executive branch’s reasons for deportation); Newton v. Rumery,

480 U.S. 386, 396 (1987) (broad prosecutorial discretion appropriate because prosecutor, not courts, equipped

to evaluate strength of case, allocation of resources, and enforcement priorities); see, e.g., U.S. v. Lewis, 517

F.3d 20, 25 (1st Cir. 2008) (broad prosecutorial discretion appropriate because prosecutorial decisions, an area

outside judicial competence, should be limited); U.S. v. HSBC Bank USA N.A., 863 F.3d 125, 136-37 (2d Cir.

2017) (broad prosecutorial discretion appropriate because courts are “obliged to ascribe to prosecutorial

conduct”); U.S. v. Wright, 913 F.3d 364, 373 (3d Cir. 2019) (broad prosecutorial discretion to dismiss

indictment ill-suited to judicial review absent misconduct and prejudice); Speed Mining, Inc. v. Fed. Mine

Safety & Health Rev. Comm’n, 528 F.3d 310, 318-19 (4th Cir. 2008) (broad executive discretion appropriate

because Secretary of Labor better equipped than courts to determine agency’s enforcement priorities); U.S. v.

Jeong, 624 F.3d 706, 713 (5th Cir.2010) (broad prosecutorial discretion appropriate because courts ill-equipped

to determine enforcement priorities and maintain diplomatic relations); U.S. v. Doe, 226 F.3d672, 678 (6th Cir.

2000) (broad prosecutorial discretion appropriate because courts ill-equipped to review “substantial federal

interest”in federal juvenile prosecution without standards for judicial review); U.S. v. Ribota, 792 F.3d 837,

840 (7th Cir. 2015) (broad prosecutorial discretion appropriate because courts ill-suited to distinguish between

enforcement prioritization and prosecutorial vindictiveness absent affirmative proof); U.S. v. White, 928 F.3d

734, 744 (8th Cir. 2019) (broad prosecutorial discretion over enforcement priorities appropriate because such

decisions are “not readily susceptible”to court’s analysis); U.S. v. Lynch, 903 F.3d 1061, 1074 (9th Cir.2018)

(broad prosecutorial discretion appropriate because courts recognize prosecutorial decisions involve choices

about resource allocation); U.S. v. DeBerry, 430 F.3d 1294, 1299 (10th Cir. 2005) (broad prosecutorial

discretion appropriate because courts ill-suited to evaluate relationship between prosecutorial decisions in

assault case and executive enforcement priorities); Alvarez v. U.S. Immigr. and Customs Enf’t, 818 F.3d 1194,

1211 (11th Cir. 2016) (broad prosecutorial discretion appropriate because agency decision to abandon removal

proceedings for ICE detainees not “susceptible to the kind of analysis courts are competent to undertake”); U.S.

v. Fokker Servs. B.V., 818 F.3d 733, 741-42 (D.C. Cir. 2016) (broad prosecutorial discretion appropriate

because “Executive’s constitutionally rooted primacy over criminal charging decisions”counsels against

review of deferred prosecution agreement).

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believe that the accused has committed an offense, the decision to prosecute is within

the prosecutor’s discretion.

698

A prosecutor may also decide what charges to bring,

699

698. See Wayte, 470 U.S. at 607; see also Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (decision to

prosecute, provided there is probable cause, generally rests entirely in prosecutor’s discretion); see, e.g., U.S. v.

Bucci, 582 F.3d 108, 113 (1st Cir. 2009) (discretion to prosecute because informant’s tip about drug dealing

provided probable cause); In re U.S., 945 F.3d 616, 627 (2d Cir. 2019) (discretion to prosecute because cell

phone containing child pornography provided probable cause); Zimmerman v. Corbett, 873 F.3d 414, 418-19

(3d Cir. 2017) (discretion to prosecute because call from defendant’s phone line that described moving grand

jury evidence provided probable cause defendant hindered investigation); Rowsey v. Lee, 327 F.3d 335, 343

(4th Cir. 2003) (discretion to prosecute defendant capitally but not codefendant because probable cause

defendant was shooter); In re U.S., 397 F.3d 274, 284 (5th Cir. 2005) (per curiam) (discretion to prosecute

defendant capitally when probable cause defendant could prevent victims’ deaths), vacated and remanded on

other grounds sub nom. Sanchez v. U.S., 552 U.S. 1089 (2008); Loza v. Mitchell, 766 F.3d 466, 495 (6th Cir.

2014) (discretion to prosecute defendant capitally because lawful Terry stop provided probable cause); U.S. v.

Ribota, 792 F.3d 837, 840 (7th Cir. 2015) (discretion to prosecute because issuance of bench warrant for

noncompliance with bond terms provided probable cause); U.S. v. Kelley, 152 F.3d 881, 886 (8th Cir. 1998)

(discretion to prosecute only 1 employee for mail fraud within prosecutor’s discretion because probable cause

existed); U.S. v. JDT, 762 F.3d 984, 999 (9th Cir. 2014) (discretion to bring sexual abuse charges against minor

because supported by probable cause); U.S. v. Ray, 899 F.3d 852, 861 (10th Cir. 2018) (discretion to prosecute

defendant with additional counts after plea deal rejected because charges supported by probable cause); U.S. v.

Davis, 854 F.3d 1276, 1291 (11th Cir. 2017) (discretion to prosecute proper because separate charges for

witness tampering and obstruction of justice not multiplicitous and supported by probable cause); U.S. v.

Meadows, 867 F.3d 1305, 1313 (D.C. Cir. 2017) (discretion to prosecute defendant for unemployment benefits

fraud within prosecutor’s discretion because probable cause existed, despite offenses typically being addressed

administratively). But see, e.g., Miller v. Mitchell, 598 F.3d 139, 155 (3d Cir. 2010) (threatened prosecution

enjoined because no evidence of probable cause).

699. See U.S. v. LaBonte, 520 U.S. 751, 762 (1997) (decision to prosecute and what charge to bring within

broad prosecutorial discretion); see also U.S. v. Batchelder, 442 U.S. 114, 123-25 (1979) (decision to choose

between 2 statutes within prosecutor’s discretion if there is evidence to convict under either statute); see, e.g.,

U.S. v. Lewis, 517 F.3d 20, 25 (1st Cir. 2008) (decision to charge false statements on federal firearms

applications within prosecutor’s discretion); In re U.S., 945 F.3d 616, 627 (2d Cir. 2019) (decision to charge

child pornography offenses that carry most severe penalties within prosecutor’s discretion); U.S. v. Bruce, 950

F.3d 173, 176 (3d Cir. 2020) (decision to charge defendant with offenses triggering drug felony 10-year

minimum sentence within prosecutor’s discretion); U.S. v. Allmendinger, 706 F.3d 330, 344 (4th Cir. 2013)

(decision to charge coconspirators differently within prosecutor’s discretion); U.S. v. Ross, 948 F.3d 243, 248-

49 (5th Cir. 2020) (decision to charge defendant with receipt instead of possession of child pornography where

the evidence supported either offense within prosecutor’s discretion); Loza v. Mitchell, 766 F.3d 466, 495 (6th

Cir. 2014) (decision to charge only 1 codefendant for murder within prosecutor’s discretion); U.S. v. Ribota,

792 F.3d 837, 840 (7th Cir. 2015) (decision to charge defendant with contempt of court in place of original drug

charges within prosecutor’s discretion); Parkhurst v. Tabor, 569 F.3d 861, 867 (8th Cir. 2009) (decision to

charge sexual assault of child within prosecutor’s discretion); U.S. v. JDT, 762 F.3d 984, 999 (9th Cir. 2014)

(decision to charge minor with sexual abuse within prosecutor’s discretion); U.S. v. Ray, 899 F.3d 852, 861

(10th Cir. 2018) (decision to charge defendant with additional counts after plea deal rejected within

prosecutor’s discretion); U.S. v. Brantley, 803 F.3d 1265, 1271 (11th Cir. 2015) (decision to charge 1 murder

witness with misprision of felony but not another in comparator case within prosecutor’s discretion); U.S. v.

Meadows, 867 F.3d 1305, 1313 (D.C. Cir. 2017) (decision to charge unemployment benefits fraud within

prosecutor’s discretion though conduct typically addressed administratively). But see, e.g., U.S. v. LaPorta, 46

F.3d 152, 156 (2d Cir. 1994) (decision to charge defendant under general provision of statute improper because

another section of same statute provides penalty for specific crime committed); Garcia-Aguilar v. U.S. Dist.

Court, 535 F.3d 1021, 1025-26 (9th Cir. 2008) (decision to charge defendant with different charges foreclosed

once defendant pleads guilty to initial charges).

The Federal Juvenile Delinquency Act confers considerable discretion upon the prosecutor to decide whether

the defendant will be tried as an adult when the alleged criminal conduct qualifies as an act of juvenile

delinquency. The circuits are split, however, on whether the decision to certify a substantial federal interest in a

particular case for the purpose of trying a juvenile in federal court is subject to judicial review. Compare U.S. v.

Female Juvenile, A.F.S., 377 F.3d 27, 32 (1st Cir. 2004) (decision to certify substantial federal interest in

juvenile prosecution is unreviewable act of prosecutorial discretion), U.S. v. Vancier, 515 F.2d 1378, 1380-81

(2d Cir. 1975) (same), Impounded (Juvenile R.G.), 117 F.3d 730, 736 (3d Cir. 1997) (same), U.S. v. Juvenile

No. 1, 118 F.3d 298, 304 (5th Cir. 1997) (same), U.S. v. Doe, 226 F.3d 672, 678 (6th Cir. 2000) (same), U.S. v.

Jarrett, 133 F.3d 519, 539 (7th Cir. 1998) (same), U.S. v. Juvenile Male J.A.J., 134 F.3d 905, 909 (8th Cir.

270 51 Geo. L.J. Ann. Rev. Crim. Proc. (2022)

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when to bring them,

700

and where to bring them.

701

A prosecutor also has author-

ity to decide whether to investigate possible criminal conduct,

702

grant

1998) (same), U.S. v. F.S.J., 265 F.3d 764, 771 (9th Cir. 2001) (same), and U.S. v. I.D.P., 102 F.3d 507, 515

(11th Cir. 1996) (same), with U.S. v. Juvenile Male, 554 F.3d 456, 460 (4th Cir. 2009) (decision to certify

substantial federal interest reviewable), and In re Sealed Case, 131 F.3d 208, 215-16 (D.C. Cir. 1997) (decision

to certify reviewable to determine facial adequacy and good faith but unreviewable as to substantial federal

interest).

700. Delay between the date of the crime and the date of indictment is analyzed under a due process

framework; in deciding whether there is a due process violation, judges may not “abort criminal prosecutions

simply because they disagree with a prosecutor’s judgment as to when to seek an indictment.”U.S. v. Lovasco,

431 U.S. 783, 790 (1977).

Generally, prosecutors are under no duty to file charges the moment probable cause is found, or even as soon

as they are satisfied of their ability to prove their case beyond a reasonable doubt. Id. at 791-92. However, a

delay that is an “intentional device to gain tactical advantage over the accused”might constitute a due process

violation. See U.S. v. Marion, 404 U.S. 307, 324 (1971). Proof of actual prejudice resulting from the delay is

“generally a necessary but not sufficient element”of a successful due process claim. See Lovasco, 431 U.S. at

790 (due process not violated by 18-month delay between crime and indictment, even if defendant prejudiced,

because result of prosecutor’s good-faith investigation); see, e.g., U.S. v. Irizarry-Colón, 848 F.3d 61, 70-71

(1st Cir. 2017) (due process not violated by over 5-year preindictment delay because defendant could not show

substantial prejudice); Bierenbaum v. Graham, 607 F.3d 36, 52 (2d Cir. 2010) (due process not violated by 14-

year preindictment delay because defendant did not suffer prejudice); U.S. v. Gilmore, 553 F.3d 266, 271 n.2

(3d Cir. 2009) (due process not violated by preindictment delay because not “shocking, outrageous, and clearly

intolerable”); U.S. v. Lopez, 860 F.3d 201, 213 (4th Cir. 2017) (due process not violated by 6-year

preindictment delay because defendant failed to prove actual prejudice); U.S. v. Scully, 951 F.3d 656, 668 (5th

Cir. 2020) (due process not violated because 3-year delay before superseding indictment did not prejudice

defendant); U.S. v. Lively, 852 F.3d 549, 567 (6th Cir. 2017) (due process not violated by 4-year preindictment

delay because prejudice claim speculative and government’s delay not intended “to gain an upper hand”); U.S.

v. Richardson, 780 F.3d 812, 818 (7th Cir. 2015) (due process not violated by 16-month preindictment delay

because defendant not actually harmed by delay and government not “intend[ing] to impede his defense”); U.S.

v. Davis, 690 F.3d 912, 923 (8th Cir. 2012) (due process not violated by 8-year preindictment delay because

defendant could not show prejudice to defense), vacated on other grounds, 570 U.S. 913 (mem.), reinstated,

736 F.3d 783, 784 (8th Cir. 2013); U.S. v. Corona-Verbera, 509 F.3d 1105, 1113 (9th Cir. 2007) (due process

not violated by 8-year preindictment delay because defendant failed to prove prejudice from lost witnesses);

U.S. v. Madden, 682 F.3d 920, 929-30 (10th Cir. 2012) (due process not violated by 4-year preindictment delay

because defendant could only show speculative, not actual, prejudice); U.S. v. Farias, 836 F.3d 1315, 1321,

1325 (11th Cir. 2016) (due process not violated by 4-year preindictment delay because defendant could not

establish prejudice and government’s delay not tactical); U.S. v. Knight, 824 F.3d 1105, 1109-10 (D.C. Cir.

2016) (due process not violated by over 30-day preindictment delay because government did not deliberately

arrest defendants on D.C. charges).

The indictment process and preindictment delays are discussed further in INDICTMENTS and SPEEDY TRIAL in

this Part.

701. See, e.g., U.S. v. Snyder, 136 F.3d 65, 70 (1st Cir. 1998) (decision to prosecute defendant in federal

court rather than state court within prosecutor’s discretion); U.S. v. Cote

´, 544 F.3d 88, 104 (2d Cir. 2008)

(decision to initiate federal charges following state prosecution within prosecutor’s discretion); U.S. v.

Piekarsky, 687 F.3d 134, 149 (3d Cir. 2012) (same); U.S. v. Venable, 666 F.3d 893, 900-01 (4th Cir. 2012)

(decision to prosecute 1 defendant in federal court and others in state court within prosecutor’s discretion); U.S.

v. Nelligan, 573 F.2d 251, 255 (5th Cir. 1978) (decision to prosecute defendant federally when state fails to try

defendant for same conduct within prosecutor’s discretion); U.S. v. Taylor, 814 F.3d 340, 375 (6th Cir. 2016)

(decision to prosecute in federal court, where death sentence was more likely, within prosecutor’s discretion);

U.S. v. Fletcher, 634 F.3d 395, 405 (7th Cir. 2011) (decision to initiate federal charges following state

prosecution within prosecutor’s discretion); U.S. v. Stroud, 673 F.3d 854, 859-60 (8th Cir. 2012) (same); U.S.

v. Lucas, 841 F.3d 796, 806 (9th Cir. 2016) (same); U.S. v. Barrett 496 F.3d 1079, 1120 (10th Cir. 2007)

(same); U.S. v. Harden, 37 F.3d 595, 599 (11th Cir. 1994) (same); U.S. v. Washington, 670 F.3d 1321, 1326

(D.C. Cir. 2012) (same).

702. See Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807 (1987) (“[W]hich persons should be

targets of investigation, what methods of investigation should be used, [and] what information will be sought as

evidence”are decisions within prosecutorial discretion “made outside the supervision of the court”); see, e.g.,

In re U.S., 441 F.3d 44, 58 (1st Cir. 2006) (investigatory decisions that rest with government are “made outside

the supervision of the court”); In re City of New York, 607 F.3d 923, 947-48 (2d Cir. 2010) (discretion to

control criminal investigations is prerogative of executive and infringed by court order to disclose dangerous

51 Geo. L.J. Ann. Rev. Crim. Proc. (2022) 271