Preindictment prosecutorial conduct in the federal system revisited.

Author:Holderman, James F.
Position:The Changing Face of White-Collar Crime


In 1980, the Journal of Criminal Law & Criminology published an article I authored entitled "Preindictment Prosecutorial Conduct in the Federal System." (4) That 1980 article was cited thereafter by various federal and state courts in published judicial opinions (5) and was chosen for republication in the National Law Review Reporter. (6)

At the time I wrote The 1980 Article, I had personally dealt with many of the preindictment issues which I discussed because I had previously supervised lengthy grand jury investigations into corruption by high-ranking public officials as the head of the Public Corruption Section of the United States Attorney's Office for the Northern District of Illinois in Chicago. (7) I also personally prosecuted a variety of public corruption cases while in the United States Attorney's Office. (8) After that, I became a partner with the law firm of Sonnenschein, Nath & Rosenthal where I specialized in federal court litigation and dealt with issues in both criminal (9) and civil cases. (10) Now having spent the last twenty years on the federal district bench in Chicago presiding over hundreds of cases, I have come to the conclusion that although a lot has happened in federal criminal law over the last quarter century, the introductory premise of The 1980 Article remains true today:

The potential and capacity for prosecutorial abuse is heightened at the preindictment stage of the federal criminal process, which historically has been carried on largely in secret. A defendant's rights may be irreparably prejudiced at this phase of the criminal process without the defendant, his lawyer, or the court ever finding out. It is, therefore, necessary for federal prosecutors at the preindictment stage to be particularly scrupulous in their conduct. (11) Consequently, at the urging of my co-author and senior law clerk, Charles Redfern, we have attempted in this article to revisit the topic of preindictment prosecutorial conduct in the federal system to discuss the law as it exists today with emphasis on the changes that have occurred since 1980. This Article, therefore, follows the general outline of The 1980 Article, and with pertinent historical deference, sets forth the law as it now exists. It is our hope that all counsel who work in the federal system will find our discussions useful as they proceed at the preindictment stage of the criminal process.


    Government attorneys acting in a preindictment setting can now look to a greater variety of sources for guidance as to what is proper prosecutorial conduct than they could in 1980. Federal statutes, Department of Justice policy statements, state laws, and local court rules are applicable to such conduct and provide ethical guidelines.

    At the time of The 1980 Article, no federal statute existed dealing with prosecutorial conduct. However, Congress in the late 1990s enacted laws to address legislative concern on the subject. (12) The first enactment occurred in 1997 when Congress authorized the awarding of reasonable attorney's fees and other litigation expenses to a prevailing criminal defendant when a federal district court found that the position of the United States in the criminal litigation was "vexatious, frivolous, or in bad faith," unless the court found that special circumstances made the award unjust. (13) The legislation has been interpreted as an effort by Congress to address prosecutorial misconduct, not to curb zealous, yet appropriate, prosecutions. (14) The circuits currently disagree over the question of the level of prosecutorial impropriety required under the statute for the awarding of attorney's fees and costs to the aggrieved defendant. (15) Future litigation of the issue, with perhaps an ultimate determination by the Supreme Court of the United States, may be necessary to resolve the conflict among the circuits.

    The other congressional action of the late 1990's addressing federal prosecutorial conduct occurred in 1998 when Congress mandated, in legislation entitled "Ethical Standards for Attorneys for the Government," 28 U.S.C. [section] 530B, that federal government attorneys, including federal prosecutors, be subject to local state laws and ethical requirements as well as to local federal court rules. (16) Before Congress enacted [section] 530B, the Department of Justice argued that federal prosecutors were exempt from the requirements of state bar and local court ethics rules under both the Supremacy Clause and separation of powers. (17)

    Federal courts, in construing 28 U.S.C. [section] 530B, have rejected attempts to have that law impose ethical obligations on federal prosecutors that are inconsistent with federal law. (18) This judicial interpretation is based on the view that Congress was not delegating to the states or local courts authority to make rules that would expand a prosecutor's ethical obligations in the federal courts. (19) Instead, [section] 530B has been recognized as a general declaration from Congress that federal government prosecutors must follow the ethical requirements applicable to all attorneys practicing law. (20) The Department of Justice has also issued official guidance in the Code of Federal Regulations on how Department attorneys should implement 28 U.S.C. [section] 530B. (21)

    The central source of internal guidance for federal prosecutors is the same now as it was in 1980, the United States Attorneys' Manual ("Manual"). (22) The Manual is a primary source of policies and procedures for the United States Attorneys' offices. (23) Throughout this Article, reference will be made to applicable sections of the Manual because federal prosecutors are to follow its guidance in carrying out all phases of their official responsibilities, including during the preindictment phase of a federal criminal investigation. The Manual, however, only provides internal Department of Justice guidance and does create any rights that a party can rely upon in either a civil or criminal proceeding. (24) Federal courts have uniformly applied the Manual's statement in holding that the Manual does not create enforceable rights for criminal defendants. (25)

    Federal prosecutors may also look beyond the federal statutes and Department of Justice policy statements to secondary ethical sources with regard to their pre-indictment conduct, most notably the American Bar Association's Criminal Justice Section Prosecution Function Standards. (26) Although federal prosecutors are not required to adhere to the ABA Prosecution Standards, the Manual recommends that federal prosecutors be familiar with these standards since courts have referred to them when evaluating prosecutorial conduct. (27)


    The decision to investigate and prosecute a suspected crime is inherently the province of the executive branch. (28) Although the Attorney General of the United States is the head of the Department of Justice of the United States, the United States Attorneys of the federal judicial districts throughout the country are the chief federal law enforcement officers of the United States within their particular jurisdiction, (29) and serve as the nation's principal federal litigators under the direction of the Attorney General. (30) Congress has statutorily directed the United States Attorneys to prosecute all offenses against the United States that occur in their districts. (31)

    United States Attorneys and the federal prosecutors who work with them enjoy broad discretion in exercising their authority to decide whether to investigate and prosecute with very limited judicial review in this area. (32) The Manual does not contain specific policy guidance on when to initiate a criminal investigation but standards have been articulated by the ABA. (33) Some legal scholars have suggested that because grand jury investigations are more time consuming, expensive, and logistically cumbersome than traditional police investigations, prosecutors traditionally use grand jury investigations only when the special setting of the grand jury provides a distinct advantage over traditional police investigations. (34)


    As was the law in 1980, the district court of the judicial district in which the grand jury sits will summon grand juries when required by the public's interest. (35) A grand jury must have at least sixteen jurors for a quorum and the number cannot exceed twenty-three. (36) A grand jury can be summoned to sit as members of either a "regular" or "special" grand jury. (37)

    The Fifth Amendment establishes the need and existence of the grand jury in the federal system. (38) Although the grand jury interacts with both the prosecutor and the courts, federal courts have recognized that the grand jury is not assigned to any of the three branches of government but is instead a constitutional fixture in its own right. (39) The grand jury in a particular federal district is responsible for investigating possible criminal violations of federal laws and returning indictments after finding probable cause to believe that a crime has been committed. (40) The grand jury's investigatory power is tremendously broad. (41) Grand juries have jurisdiction to investigate conduct merely because that conduct might have been a federal crime within the jurisdiction of the federal court convening the grand jury. (42)

    Both the prosecutor and the grand jury serve dual roles in the process. Grand juries, while responsible for determining if probable cause exists that a crime has been committed and returning indictments in accordance with those findings, must also act to protect against unfounded criminal prosecutions. (43) The prosecutor must seek indictments when warranted and must also be an advisor to the grand jury. (44) A prosecutor's use of the grand jury's power is limited only by...

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