These principles of federal prosecution provide federal prosecutors a statement of prosecutorial policies and practices. As such, they should promote the reasoned exercise of prosecutorial authority and contribute to the fair, evenhanded administration of the federal criminal laws.
A determination to prosecute represents a policy judgment that the fundamental interests of society require the application of federal criminal law to a particular set of circumstances—recognizing both that serious violations of federal law must be prosecuted, and that prosecution entails profound consequences for the accused, crime victims, and their families whether or not a conviction ultimately results. Other prosecutorial decisions can be equally significant. Decisions, for example, regarding the specific charges to be brought, or concerning plea dispositions, effectively determine the range of sanctions or other measures that may be imposed for criminal conduct. The rare decision to consent to pleas of nolo contendere may affect the success of related civil suits for recovery of damages. And the government's position during the sentencing process will help ensure that the court imposes a sentence consistent with 18 U.S.C. § 3553(a).
These principles of federal prosecution have been designed to assist in structuring the decision-making process of attorneys for the government. For the most part, they have been cast in general terms with a view to providing guidance rather than to mandating results. The intent is to assure regularity without regimentation, and to prevent unwarranted disparity without sacrificing necessary flexibility.
The availability of this statement of principles to federal law enforcement officials and to the public serves two important purposes: ensuring the fair and effective exercise of prosecutorial discretion and responsibility by attorneys for the government, and promoting confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively based on an individualized assessment of the facts and circumstances of each case. The principles provide convenient reference points for the process of making prosecutorial decisions; they facilitate the task of training new attorneys in the proper discharge of their duties; they contribute to more effective management of the government's limited prosecutorial resources by promoting greater consistency among the prosecutorial activities of all United States Attorney's offices and between their activities and the Department's law enforcement priorities; they make possible better coordination of investigative and prosecutorial activity by enhancing the understanding of investigating departments and agencies of the considerations underlying prosecutorial decisions by the Department; and they inform the public of the careful process by which prosecutorial decisions are made.
Important though these principles are to the proper operation of our federal prosecutorial system, the success of that system must rely ultimately on the character, integrity, sensitivity, and competence of those men and women who are selected to represent the public interest in the federal criminal justice process. It is with their help that these principles have been prepared, and it is with their efforts that the purposes of these principles will be achieved.
[updated June 2023]
The principles of federal prosecution set forth herein are intended to promote the reasoned exercise of prosecutorial discretion by attorneys for the government with respect to:
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. The prosecutor's broad discretion in such areas as initiating or foregoing prosecutions, selecting or recommending specific charges, and terminating prosecutions by accepting guilty pleas has been recognized on numerous occasions by the courts. See, e.g., United States v. LaBonte, 520 U.S. 751, 762 (1997); Oyler v. Boles, 368 U.S. 448 (1962); United States v. Fokker Services B.V., 818 F.3d 733, 741 (D.C. Cir. 2016); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965). This discretion exists by virtue of the prosecutor's status as a member of the Executive Branch, and the President's responsibility under the Constitution to ensure that the laws of the United States be "faithfully executed." U.S. Const. Art. II § 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 concerning enforcement of a nationwide system of criminal justice, it is desirable, in the interest of the fair and effective administration of justice, that all federal prosecutors be guided by a general statement of principles that summarizes appropriate considerations to be weighed, and desirable practices to be followed, in discharging their prosecutorial responsibilities.
Although these principles deal with the specific 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 offenders, and rehabilitation of offenders—are adequately met, while making certain also that the rights of individuals are scrupulously protected.
[updated January 2023]
In carrying out criminal law enforcement responsibilities, each Department of Justice attorney should be guided by these principles, and each United States Attorney and each Assistant Attorney General should ensure that such principles are communicated to the attorneys who exercise prosecutorial responsibility within his/her office or under his/her direction or supervision. Prosecutors should further refer to the Attorney General’s memoranda—General Department Policies Regarding Charging, Pleas, and Sentencing and Additional Department Policies Regarding Charging, Pleas, and Sentencing in Drug Cases—for additional background and guidance.
Comment. It is expected that each federal prosecutor will be guided by these principles in carrying out his/her criminal law enforcement responsibilities unless a modification of, or departure from, these principles has been authorized pursuant to JM 9-27.140. However, it is not intended that reference to these principles will require a particular prosecutorial decision in any given case. Rather, these principles are set forth solely for the purpose of assisting attorneys for the government in determining how best to exercise their authority in the performance of their duties.
[updated June 2023]
Each United States Attorney and responsible Assistant Attorney General should establish internal office procedures to ensure:
Comment. One purpose of such procedures should be to ensure consistency in the decisions within each office by regularizing the decision-making process so that decisions are made at the appropriate level of responsibility. A second purpose, equally important, is to provide appropriate remedies for serious, unjustified departures from sound prosecutorial principles. The United States Attorney or Assistant Attorney General may also wish to establish internal procedures for appropriate review and documentation of decisions.
[updated June 2023]
United States Attorneys may modify or depart from the principles set forth herein as necessary in the interests of fair and effective law enforcement within the district. Any modification or departure contemplated as a matter of policy or regular practice must be approved by the appropriate Assistant Attorney General where required, see JM 9-2.400 (prior approvals chart), and the Deputy Attorney General. Similarly, Assistant Attorneys General overseeing prosecuting components may modify or depart from the principles set forth herein in the interests of fair and effective law enforcement, and any modification or departure contemplated by an Assistant Attorney General as a matter of policy or regular practice must be approved by the Deputy Attorney General.
Comment. Although these materials are designed to promote consistency in the application of federal criminal laws, they are not intended to produce rigid uniformity among federal prosecutors in all areas of the country at the expense of the fair administration of justice. Different offices face different conditions and have different requirements. In recognition of these realities, and in order to maintain the flexibility necessary to respond fairly and effectively to local conditions, each United States Attorney and Assistant Attorney General overseeing prosecuting components is authorized to modify or depart from these principles, as necessary in the interests of fair and effective law enforcement within the district. In situations in which any modification or departure is contemplated as a matter of policy or regular practice, the appropriate U.S. Attorney and/or Assistant Attorney General and the Deputy Attorney General must approve the action before it is adopted.
[updated June 2023]
These principles, and internal office procedures adopted pursuant to them, are intended solely for the guidance of attorneys for the government. They are not intended to create a substantive or procedural right or benefit, enforceable at law , and may not be relied upon by a party to litigation with the United States.
Comment. The Principles of Federal Prosecution have been developed purely as matter of internal Departmental policy and are being provided to federal prosecutors solely for their own guidance in performing their duties. Neither this statement of principles nor any internal procedures adopted by individual offices create any rights or benefits. By setting forth this fact explicitly, JM 9-27.150 is intended to foreclose efforts to litigate the validity of prosecutorial actions alleged to be at variance with these principles or not in compliance with internal office procedures. In the event that an attempt is made to litigate any aspect of these principles, to litigate any internal office procedures, or to litigate the applicability of such principles or procedures to a particular case, the attorney for the government should oppose the attempt. The attorney for the government should also notify the Department of the litigation if there is a reasonable possibility the government may face an adverse decision on the litigation or if a court renders an adverse decision.
[updated February 2018]
If the attorney for the government concludes that there is probable cause to believe that a person has committed a federal offense within his/her jurisdiction, he/she should consider whether to:
Comment. JM 9-27.200 sets forth the courses of action available to the attorney for the government once he/she concludes that there is probable cause to believe that a person has committed a federal offense within his/her jurisdiction. The probable cause standard is the same standard required for the issuance of an arrest warrant or a summons upon a complaint (see Fed. R. Crim. P. 4(a)), and 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). This 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 instead be warranted, and the prosecutor should still take into account all relevant considerations, including those described in the following provisions, in deciding upon his/her course of action. On the other hand, failure to meet the minimal requirement of probable cause is an absolute bar to initiating a federal prosecution, and in some circumstances may preclude reference to other prosecuting authorities or recourse to non-criminal sanctions or other measures as well.
[updated February 2018]
The attorney for the government should commence or recommend federal prosecution if he/she believes that the person's conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.
Comment. JM 9-27.220 sets forth the longstanding threshold requirement from the Principles of Federal Prosecution that a prosecutor may commence or recommend federal prosecution only if he/she believes that the person will more likely than not be found guilty beyond a reasonable doubt by an unbiased trier of fact and that the conviction will be upheld on appeal. Evidence sufficient to sustain a conviction is required under Rule 29(a) of the Federal Rules of Criminal Procedure, to avoid a judgment of acquittal. Moreover, both as a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact. In this connection, it should be noted that, when deciding whether to prosecute, the government attorney need not have in hand, at that time, all of the evidence upon which he/she intends to rely at trial, if he/she has a reasonable and good faith belief that such evidence will be available and admissible at the time of trial. Thus, for example, it would be proper to commence or recommend a prosecution even though a key witness may be out of the country, so long as there is a good faith basis to believe that the witness's presence at trial could reasonably be expected.
Where the law and the facts create a sound, prosecutable case, the likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the defendant or his/her cause is not a factor prohibiting prosecution. For example, in a civil rights case or a case involving an extremely popular political figure, it might be clear that the evidence of guilt—viewed objectively by an unbiased factfinder—would be sufficient to obtain and sustain a conviction, yet the prosecutor might reasonably doubt, based on the circumstances, that the jury would convict. In such a case, despite his/her negative assessment of the likelihood of a guilty verdict (based on factors extraneous to an objective view of the law and the facts), the prosecutor may properly conclude that it is necessary and appropriate to commence or recommend prosecution and allow the criminal process to operate in accordance with the principles set forth here.
However, the attorney for the government’s belief that a person's conduct constitutes a federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction is not sufficient standing by itself to commence or recommend prosecution. The prosecution must also serve a substantial federal interest, and the prosecutor must assess whether, in his/her judgment, the person is subject to effective prosecution in another jurisdiction; and whether there exists an adequate non-criminal alternative to prosecution. It is left to the judgment of the attorney for the government to determine whether these circumstances exist. In exercising that judgment, the attorney for the government should consult JM 9-27.230, 9-27.240, 9-27.250, and 9-27.260.
[updated June 2023]
In determining whether a prosecution would serve a substantial federal interest, the attorney for the government should weigh all relevant considerations, including:
Comment. The list of relevant considerations is not intended to be all-inclusive. Moreover, not all of the factors will be applicable to every case, and in any particular case one factor may deserve more weight than it might in another case.
The impact of an offense on the community in which it is committed can be measured in several ways: in terms of economic harm done to community interests; in terms of physical danger to the citizens or damage to public property; and in terms of erosion of the inhabitants' peace of mind and sense of security. In assessing the seriousness of the offense in these terms, the prosecutor may properly weigh such questions as whether the violation is technical or relatively inconsequential in nature and what the public attitude may be toward prosecution under the circumstances of the case. The public may be indifferent, or even opposed, to enforcement of the controlling statute whether on substantive grounds, or because of a history of non-enforcement, or because the offense involves essentially a minor matter of private concern and the victim is not interested in having it pursued. On the other hand, the nature and circumstances of the offense, the identity of the offender or the victim, or the attendant publicity, may be such as to create strong public sentiment in favor of prosecution. While public interest, or lack thereof, deserves the prosecutor's careful attention, it should not be used to justify a decision to prosecute, or to take other action, that is not supported on other grounds. Public and professional responsibility sometimes will require the choosing of a particularly unpopular course.
There are also considerations that deserve no weight and should not influence the decision, such as the time and resources already expended in federal investigation of the case. No amount of investigative effort warrants commencing a federal prosecution that is not fully justified on other grounds.
[updated June 2023]
In determining whether prosecution should be declined because the person is subject to effective prosecution in another jurisdiction, the attorney for the government should weigh all relevant considerations, including:
When declining prosecution, or reviewing whether federal prosecution should be initiated, the attorney for the government should: (1) consider whether to discuss the matter under review with state, local, territorial, or tribal law enforcement authorities for further investigation or prosecution; and (2) coordinate with those authorities as appropriate. The attorney for the government should be especially aware of the need to coordinate with state, local, territorial, and tribal law enforcement authorities, and shall do so as permitted by law, when declining a matter that involves an ongoing threat or relates to acts of violence or abuse against vulnerable victims, including minors. The attorney for the government should document these coordination efforts, where undertaken, when federal prosecution is declined.
Comment. In many instances, it may be possible to prosecute criminal conduct in more than one jurisdiction. Although there may be instances in which a federal prosecutor may wish to consider deferring to prosecution in another federal district, or to another government, in most instances the choice will probably be between federal prosecution and prosecution by state or local authorities. The factors listed in JM 9-27.240 are illustrative only, and the attorney for the government should also consider any others that appear relevant to his/her particular case.
[updated June 2023]
In determining whether there exists an adequate, non-criminal alternative to prosecution, the attorney for the government should consider all relevant factors, including:
Comment. When a person has committed a federal offense, it is important that the law respond promptly, fairly, and effectively. This does not mean, however, that a criminal prosecution must be commenced. In recognition of the fact that resort to the criminal process is not necessarily the only appropriate response to serious forms of antisocial activity, Congress and state legislatures have provided civil and administrative remedies for many types of conduct that may also be subject to criminal sanction. Examples of such non-criminal approaches include civil tax proceedings; civil actions under the False Claims Act or other statutory causes of action for false or fraudulent claims; civil actions under the securities, customs, antitrust, or other regulatory laws; administrative suspension and debarment or exclusion proceedings; civil judicial and administrative forfeiture; and reference of complaints to licensing authorities or to professional organizations such as bar associations. Another potentially useful alternative to prosecution in some cases is pretrial diversion. See JM 9-22.000 (1) requiring every United States Attorney's Office to develop and implement a pretrial diversion policy (2).
Attorneys for the government should familiarize themselves with these alternatives and should consider pursuing them if they are available in a particular case. Although on some occasions they should be pursued in addition to criminal prosecution, on other occasions these alternatives can be expected to provide an effective substitute for criminal prosecution. In weighing the adequacy of such an alternative in a particular case, the prosecutor should consider the nature and impact of the sanctions or other measures that could be imposed, the likelihood that an effective sanction or other measure would in fact be imposed, and the effect of such a non-criminal disposition on federal law enforcement and community interests.
When considering whether to pursue a non-criminal disposition, prosecutors should also consider the interests of any victims. In evaluating victim interests and determining whether to pursue a non-criminal disposition, the prosecutor should be available to confer with the victim in furtherance of the Crime Victims’ Rights Act (CVRA) and in accordance with the Attorney General Guidelines for Victim and Witness Assistance. For more information regarding the Department’s obligations to victims, see the Crime Victims’ Rights Act, 18 U.S.C. § 3771, the Victims’ Rights and Restitution Act, 34 U.S.C. § 20141, and the Attorney General Guidelines for Victim and Witness Assistance.
It should be noted that referrals for non-criminal disposition may not include the transfer of grand jury material unless an order under Rule 6(e) of the Federal Rules of Criminal Procedure, is obtained. See United States v. Sells Engineering, Inc., 463 U.S. 418 (1983).
[updated June 2023]
In determining whether to commence or recommend prosecution or take other action against a person, the attorney for the government may not be influenced by:
Charges or statutory sentencing enhancements may not be filed, nor the option of filing charges or enhancements raised, simply to exert leverage to induce a plea or because the defendant elected to exercise the right to trial.
In addition, federal prosecutors and agents may never make a decision regarding an investigation or prosecution, or select the timing of investigative steps or criminal charges, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. See § 9-85.500.
[updated June 2023]
Whenever an attorney for the government declines to commence or recommend federal prosecution, he/she should ensure that his/her decision and the reasons therefore are communicated to the investigating agency involved and to any other interested agency, and are also reflected in the office files to ensure an adequate record of disposition of matters that are brought to the attention of the government attorney for possible criminal prosecution, but that do not result in federal prosecution. When prosecution is declined in serious cases on the understanding that action will be taken by other authorities, appropriate steps should be taken to ensure that the matter receives their attention.
[updated February 2018]
Once a determination has been made that prosecution would satisfy the requirements set forth in JM 9-27.220 – 9-27.250, the prosecutor must select the most appropriate charges. Ordinarily, those charges will include the most serious offense that is encompassed by the defendant’s conduct and that is likely to result in a sustainable conviction. In selecting the appropriate charges, however, prosecutors should consider whether the consequences of those charges for sentencing would yield a result that is proportional to the seriousness of the defendant’s conduct, and whether the charge achieves such purposes of the criminal law as punishment, protection of the public, specific and general deterrence, and rehabilitation. Such decisions should be informed by an individualized assessment of all the facts and circumstances of each particular case. The goal in any prosecution is a sanction that is “sufficient, but not greater than necessary,” 18 U.S.C. § 3553(a), to satisfy these considerations.
To ensure consistency and accountability, charging and plea agreement decisions must be reviewed by a supervisory attorney. All but the most routine indictments should be accompanied by a prosecution memorandum that identifies the charging options supported by the evidence and the law and explains the charging decision therein. Each United States Attorney’s Office and litigating division of the Department is required to promulgate written guidance describing its internal indictment review process.
Prosecutors have an ongoing obligation to evaluate a case and the provable evidence, even after offenses have been charged. If a prosecutor determines that, as a result of a change in the evidence or for another reason, a charge is no longer readily provable or appropriate, the prosecutor should dismiss those charges, consistent with the written policies of the district or litigating division and the Principles of Federal Prosecution.
Comment. Once it has been determined to commence prosecution, either by filing a complaint or an information, or by seeking an indictment from the grand jury, the attorney for the government must determine what charges to file or recommend. When the conduct in question consists of a single criminal act, or when there is only one applicable statute, this is not a difficult task. Typically, however, a defendant will have committed more than one criminal act and his/her conduct may be prosecuted under more than one statute. Moreover, the selection of charges may be complicated further by the fact that different statutes have different proof requirements and provide substantially different penalties. In such cases, considerable care is required to ensure selection of the proper charge or charges. In addition to reviewing the concerns that prompted the decision to prosecute in the first instance, particular attention should be given to the need to ensure that the prosecution will be both fair and effective.
At the outset, the attorney for the government should bear in mind that he/she will have to introduce at trial admissible evidence sufficient to obtain and sustain a conviction, or else the government will suffer a dismissal, or a reversal on appeal. For this reason, he/she should not include in an information, or recommend in an indictment, charges that he/she cannot reasonably expect to prove beyond a reasonable doubt by legally sufficient and admissible evidence at trial.
In connection with the evidentiary basis for the charges selected, the prosecutor should also be particularly mindful of the different requirements of proof under different statutes covering similar conduct. For example, the bribe provisions of 18 U.S.C. § 201 require proof of "corrupt intent," while the '"gratuity" provisions do not. Similarly, the "two witness" rule applies to perjury prosecutions under 18 U.S.C. § 1621 but not under 18 U.S.C. § 1623.
[updated June 2023]
Charges that subject a defendant to a mandatory minimum sentence should ordinarily be reserved for instances in which the remaining charges (i.e., those for which the elements are also satisfied by the defendant’s conduct, and do not carry mandatory minimum terms of imprisonment) would not sufficiently reflect the seriousness of the defendant’s criminal conduct, danger to the community, harm to victims, or such purposes of the criminal law as punishment, protection of the public, specific and general deterrence, and rehabilitation. Prosecutors, in the exercise of their discretion and through discussions with their supervisors, should determine whether the remaining charges would, in fact, capture the gravamen of the defendant’s conduct and danger to the community and yield a sanction “sufficient” to satisfy the considerations outlined above. 18 U.S.C. § 3553(a) (mandating sentences that are “sufficient but not greater than necessary”).
In some cases, the Department’s duty to ensure that the laws are faithfully executed will require that prosecutors charge offenses that impose a mandatory minimum sentence, particularly where other charges do not sufficiently reflect the seriousness of the defendant's conduct, the danger the defendant poses to the community, or other important federal interests. This may well be the case, for example, for defendants who have committed or threatened violent crimes, or who have directed others to do so. For example, a defendant who commits a federal crime of violence, such as a Hobbs Act robbery or hate crime, or a federal drug-trafficking crime, and who also uses or carries a firearm in furtherance of that crime, may appropriately be charged under 18 U.S.C. § 924(c) even if the prosecutor could potentially proceed by charging the substantive offense alone and seek a firearm enhancement at sentencing, if the latter would not sufficiently account for the defendant’s conduct or danger to the community.
As a general matter, the decision whether to seek a statutory sentencing enhancement should be guided by these same principles.
Department policy requires that prosecutors always be candid with the court, the probation office, and the public as to the full extent of the defendant’s conduct and culpability, regardless of whether the charging document includes such specificity.
Any decision to include a mandatory minimum charge in a charging document or plea agreement must also obtain supervisory approval. Each United States Attorney and Assistant Attorney General for a litigating division must determine, and designate, the appropriate level of supervisory review of charging documents and plea agreements containing mandatory minimum charges, which must be no lower than section chief or equivalent.
Until such time that the Department has developed and implemented a software program that enables real-time, trackable reporting by districts and litigating divisions of all charges brought by the Department, each United States Attorney’s Office and litigating division must report semi-annually to the Executive Office for United States Attorneys the number and percentage of charging documents and plea agreements in which it has included mandatory minimum charges.
[updated June 2023]
The principles set forth in JM 9-27.310 regarding careful use of mandatory minimum charges apply with particular force in drug cases brought under Title 21 of the United States Code, where mandatory minimum sentences based on drug type and quantity have resulted in disproportionately severe sentences for certain defendants and perceived and actual racial disparities in the criminal justice system.
Accordingly, in cases where Title 21 mandatory minimum sentences are applicable based on drug type and quantity, prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant satisfies all of the following criteria:
In making the above assessment, prosecutors should consider whether the above criteria are satisfied without regard to whether the defendant would be eligible for a sentence below a mandatory minimum term based on application of the safety valve, 18 U.S.C. § 3553(f), or on substantial assistance under 18 U.S.C. § 3553(e).
In cases in which prosecutors determine that some but not all of the criteria are satisfied, prosecutors should not automatically charge the quantity necessary to trigger the mandatory minimum, but rather weigh the considerations set forth in this subsection and JM 9-27.310 to carefully determine, through the exercise of their discretion and in consultation with their supervisors, whether a Title 21 charge with a mandatory minimum sentence is appropriate. For example, in a case involving a defendant who serves only as a “drug mule,” but who arguably does not satisfy all of the criteria discussed above, the balance of considerations may still weigh against the filing of a Title 21 charge carrying a mandatory minimum sentence.
As set forth in JM 9-27.310, any decision to include a mandatory minimum charge in a charging document or plea agreement must be approved by a supervisory attorney as designated by the United States Attorney or Assistant Attorney General for the relevant litigating division.
In deciding whether to file an information under 21 U.S.C. § 851 requiring imposition of enhanced statutory penalties, prosecutors in drug cases should be guided by the same criteria discussed above for charging mandatory minimum offenses, as well as whether the filing would create a significant and unwarranted sentencing disparity with equally or more culpable codefendants. Prosecutors are encouraged to make the Section 851 determination, and to file any such notice, at the time the case is charged or as soon as possible thereafter. As with any filing, a Section 851 enhancement should not be filed simply to exert leverage to induce a plea or because the defendant elected to exercise the right to trial. JM 9-27.400.
If information sufficient to determine that all of the criteria listed above in this subsection are satisfied is available at the time initial charges are filed, prosecutors should decline to pursue Title 21 charges triggering a mandatory minimum sentence. If this information is not yet available, prosecutors may file charges involving these mandatory minimum statutes pending further information. If information that the criteria are satisfied is subsequently obtained, prosecutors should pursue a disposition that does not require a Title 21 mandatory minimum sentence. For example, a prosecutor could ask the grand jury to supersede the indictment with charges that do not carry mandatory minimum sentences; a defendant could plead guilty to a lesser included offense that does not carry the mandatory minimum; or a defendant could waive indictment and plead guilty to an information that does not charge the quantity necessary to trigger the mandatory minimum.
If charging a mandatory minimum term of imprisonment under Title 21 for a drug offense involving crack cocaine is deemed warranted under JM 9-27.310 and this provision, prosecutors should charge the pertinent statutory quantities that apply to powder cocaine offenses. Prosecutors should consult guidance from the Criminal Division and the Executive Office for U.S. Attorneys as to how to structure such charges.
[added June 2023]
Except as hereafter provided, the attorney for the government should also charge, or recommend that the grand jury charge, other offenses only when, in his/her judgment, such additional charges:
Comment. It is important to the fair and efficient administration of justice in the federal system that the government bring as few charges as are necessary to ensure that justice is done. JM 9-27.320 outlines three general situations in which additional charges may be brought: (1) when necessary adequately to reflect the nature and full extent of the criminal conduct involved; (2) when necessary to provide the basis for an appropriate sentence under all the circumstances of the case; or (3) when an additional charge or charges would significantly strengthen the case against the defendant or a codefendant.
[updated June 2023]
Before filing or recommending charges pursuant to a precharge plea agreement, the attorney for the government should consult the plea agreement provisions of JM 9-27.430, relating to the selection of charges to which a defendant should be required to plead guilty.
[updated February 2017]
The attorney for the government may, in an appropriate case, enter into an agreement with a defendant that, upon the defendant's plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, he/she will not bring or will move for dismissal of other charges, take a certain position with respect to the sentence to be imposed, or take other action. See JM 9-27.300 (discussing the individualized assessment by prosecutors of the extent to which particular charges fit the specific circumstances of the case, are consistent with the purposes of the federal criminal code, and maximize the impact of federal resources on crime); see also JM 9-27.310 (Charges Triggering Mandatory Minimum Sentences and Statutory Enhancements); JM 9-27.311 (Charges Triggering Mandatory Minimum Sentences and Statutory Enhancements in Certain Drug Cases).
Each United States Attorney’s Office and litigating division must promulgate written guidance regarding the standard elements required in its plea agreements, including any waiver of defendants’ rights.
Comment. JM 9-27.400 permits the disposition of federal criminal charges pursuant to plea agreements between defendants and government attorneys. Such negotiated dispositions should be distinguished from situations in which a defendant pleads guilty or nolo contendere to fewer than all counts of an information or indictment in the absence of any agreement with the government. Only the former type of disposition is covered by the provisions of JM 9-27.400 et seq.
Negotiated plea dispositions are explicitly sanctioned by Rule 11(c)(1) of the Federal Rules of Criminal Procedure, which provides that:
An attorney for the government and the defendant’s attorney, or the defendant when acting pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will:
Three types of plea agreements are encompassed by the language of JM 9-27.400: 1) agreements whereby in return for the defendant's plea to a charged offense or to a lesser or related offense, other charges are not sought or are dismissed ("charge agreements"); 2) agreements pursuant to which the government takes a certain position regarding the sentence to be imposed ("sentence agreements"); and 3) agreements that combine a plea with a dismissal of charges and an undertaking by the prosecutor concerning the government's position at sentencing ("mixed agreements").
Plea agreements should reflect the totality of a defendant’s conduct. These agreements are governed by the same fundamental principles as are charging decisions: prosecutors will generally seek a plea to the most serious offense that is consistent with the nature and full extent of the defendant’s conduct and likely to result in a sustainable conviction and proportional sentence, informed by an individualized assessment of all of the facts and circumstances of each particular case. Charges should not be filed simply to exert leverage to induce a plea; nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendant’s conduct.
1. Charge Agreements. Charge agreements envision dismissal of counts in exchange for a plea. Should a prosecutor determine in good faith after indictment that, as a result of a change in the evidence or for another reason (e.g., a need has arisen to protect sources and methods, including the identity of a particular witness until he or she testifies against a more significant defendant), a charge is not readily provable or that an indictment exaggerates the seriousness of an offense or offenses, a plea bargain may reflect the prosecutor's reassessment. There should be documentation, however, in any case in which the charges originally brought are dismissed. Moreover, a decision not to prosecute a violation of federal law pursuant to Section 12(a) of the Classified Information Procedures Act would trigger a reporting requirement to the Congress, and may not take place without the approval of the Assistant Attorney General for National Security.
2. Sentencing Agreements. There are only two types of sentence bargains. Both are permissible, but one is more complicated than the other. First, prosecutors may bargain for a sentence that is within the specified United States Sentencing Commission's guideline range. This means that when a guideline range is 18 to 24 months, the prosecutor has discretion to agree to recommend a sentence of, for example, 18 to 20 months rather than to argue for a sentence at the top of the range. Such a plea does not require that the actual sentence range be determined in advance. The plea agreement may have wording to the effect that once the range is determined by the court, the United States will recommend a certain point in that range. Similarly, the prosecutor may agree to recommend a downward adjustment for acceptance of responsibility if he or she concludes in good faith that the defendant is entitled to the adjustment. Second, the prosecutor may seek to depart or vary from the guidelines. This is more complicated than a bargain involving a sentence within a guideline range. Departures and variances are discussed more generally below.
Department policy requires transparency and honesty in sentencing; federal prosecutors are expected to identify for the court departures or variances when they agree to support them. For example, it would be improper for a prosecutor to agree that a departure or variance is in order, but to conceal the agreement in a charge bargain that is presented to a court as a fait accompli so that there is neither a record of nor judicial review of the departure or variance.
The language of JM 9-27.400 with respect to sentence agreements is intended to cover the entire range of positions that the government might wish to take at the time of sentencing. Among the options are: taking no position regarding the sentence; not opposing the defendant's request; requesting a specific type of sentence (e.g., a fine or probation), a specific fine or term of imprisonment, or not more than a specific fine or term of imprisonment; and requesting concurrent rather than consecutive sentences. Agreement to any such option must be consistent with the sentencing guidelines.
3. Mixed Agreements. Plea bargaining, both charge bargaining and sentence bargaining, must reflect the totality and seriousness of the defendant's conduct and any departure or variance to which the prosecutor is agreeing, and must be accomplished through appropriate application of sentencing guidelines provisions.
The basic policy is that charges are not to be bargained away or dropped in ways that represent a significant departure from the principles set forth herein unless the prosecutor has a good faith doubt as to the government's ability readily to prove a charge for legal or evidentiary reasons. There are, however, two common circumstances in which charges may be dropped consistent with these principles.
First, if the applicable guideline range from which a sentence may be imposed would be unaffected, readily provable charges may be dismissed or dropped as part of a plea bargain. It is important to know whether dropping a charge may affect a sentence, including monetary penalties such as restitution or forfeiture. For example, the multiple offense rules in Part D of Chapter 3 of the guidelines and the relevant conduct standard set forth in Sentencing Guideline § 1B1.3(a)(2) will mean that certain dropped charges will be counted for purposes of determining the sentence, subject to the statutory maximum for the offense or offenses of conviction. It is vital that federal prosecutors understand when conduct that is not charged in an indictment or conduct that is alleged in counts that are to be dismissed pursuant to a bargain may be counted for sentencing purposes and when it may not be. For example, in the case of a defendant who could be charged with five bank robberies, a decision to charge only one or to dismiss four counts pursuant to a bargain precludes any consideration of the four uncharged or dismissed robberies in determining a guideline range, unless the plea agreement included a stipulation as to the other robberies. By contrast, in the case of a defendant who could be charged with five counts of fraud, the total amount of money involved in a fraudulent scheme will be considered in determining a guideline range even if the defendant pleads guilty to a single count and there is no stipulation as to the other counts.
Second, federal prosecutors may drop readily provable charges with the specific approval of the United States Attorney, appropriate Assistant Attorney General, or designated supervisory level official for reasons set forth in the file of the case. This exception recognizes that the aims of the Sentencing Reform Act must be sought without ignoring other, critical aspects of the federal criminal justice system. For example, approvals to drop charges in a particular case might be given because the United States Attorney's office is particularly over-burdened, the case would be time-consuming to try, and proceeding to trial would significantly reduce the total number of cases disposed of by the office.
The Sentencing Guidelines, including Chapter 5, Part K, list departures that may be considered by a court in imposing a sentence. Moreover, Guideline § 5K2.0 recognizes that a sentencing court may consider a ground for departure that has not been adequately considered by the Commission. Likewise, district courts always retain discretion to vary from the Sentencing Guidelines. Prosecutors should consult JM 9-27.730 in determining whether agreement to a departure or variance may be appropriate.
A departure or variance requires approval by the court. To the extent a prosecutor enters into a plea bargain which is based upon an agreement that a departure or variance is warranted, prosecutors should inform the court of that agreement and thereby afford the court an opportunity to reject it.
The concession required by the government as part of a plea agreement, whether it be a "charge agreement," a "sentence agreement," or a "mixed agreement," should be weighed by the responsible government attorney in the light of the probable advantages and disadvantages of the plea disposition proposed in the particular case. Particular care should be exercised in considering whether to enter into a plea agreement pursuant to which the defendant will enter a nolo contendere plea. As discussed in JM 9-27.500 and JM 9-16.000, there are serious objections to such pleas, and they should be opposed unless the appropriate United States Attorney and/or Assistant Attorney General concludes that the circumstances are so unusual that acceptance of such a plea would be in the public interest.
Section 5K1.1 of the Sentencing Guidelines allows the United States to file a pleading with the sentencing court, which permits the court to depart below the indicated guideline, on the basis that the defendant provided substantial assistance in the investigation or prosecution of another. Authority to approve such pleadings is limited to the United States Attorney, the Chief Assistant United States Attorney, and supervisory criminal Assistant United States Attorneys, or a committee including at least one of these individuals. Similarly, for Department of Justice attorneys, approval authority should be vested in a Section Chief or Office Director, or such official's deputy, or in a committee that includes at least one of these individuals.
Every United States Attorney or Department of Justice Section Chief (or Assistant Chief) or Office Director shall maintain documentation of the facts behind and justification for each substantial assistance pleading in the official file. Freedom of Information Act or other considerations may suggest that the final decision be memorialized on a separate form rather than on the recommendation itself.
The procedures described above shall also apply to Motions filed pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure, where the sentence of a cooperating defendant is reduced after sentencing on motion of the United States. Such a filing is deemed for sentencing purposes to be the equivalent of a substantial assistance pleading.
[updated June 2023]
In determining whether it would be appropriate to enter into a plea agreement, the attorney for the government should weigh all relevant considerations, including:
Comment. JM 9-27.420 sets forth some of the appropriate considerations to be weighed by the attorney for the government in deciding whether to enter into a plea agreement with a defendant pursuant to the provisions of Rule 11 of the Federal Rules of Criminal Procedure. The provision is not intended to suggest the desirability or lack of desirability of a plea agreement in any particular case or to be construed as a reflection on the merits of any plea agreement that actually may be reached; its purpose is solely to assist attorneys for the government in exercising their prosecutorial discretion as to whether a plea agreement would be appropriate in a particular case. Government attorneys should consult with the investigating agency involved and the victim, if appropriate or required by law.
It is particularly important that the defendant not be permitted to enter a guilty plea under circumstances that will allow him/her later to proclaim lack of culpability or even complete innocence. Such consequences can be avoided only if the court and the public are adequately informed of the nature and scope of the illegal activity and of the defendant's complicity and culpability. To this end, the attorney for the government is strongly encouraged to enter into a plea agreement only with the defendant's assurance that he/she will admit, the facts of the offense and of his/her culpable participation therein. A plea agreement may be entered into in the absence of such an assurance, but only if the defendant is willing to accept without contest a statement by the government in open court of the facts it could prove to demonstrate his/her guilt beyond a reasonable doubt. Except as provided in JM 9-27.440, the attorney for the government should not enter into a plea agreement with a defendant who admits his/her guilt but disputes an essential element of the government's case.
When negotiating a plea agreement, the attorney for the government should also not seek to have a defendant waive claims of ineffective assistance of counsel whether those claims are made on collateral attack or, when permitted by circuit law, made on direct appeal. As long as prosecutors exempt ineffective-assistance claims from their waiver provisions, they may request waivers of appeal and of post -conviction remedies to the full extent permitted by law as a component of plea discussions and agreements.
[updated February 2018]
If a prosecution is to be concluded pursuant to a plea agreement, the defendant should be required to plead to a charge or charges:
Comment. JM 9-27.430 sets forth the considerations that should be taken into account in selecting the charge or charges to which a defendant should be required to plead guilty once it has been decided to dispose of the case pursuant to a plea agreement. The considerations are essentially the same as those governing the selection of charges to be included in the original indictment or information. See JM 9-27.300; JM 9-27.310 (Charges Triggering Mandatory Minimum Sentences and Statutory Enhancements); JM 9-27.311 (Charges Triggering Mandatory Minimum Sentences and Statutory Enhancements in Certain Drug Cases).
[updated June 2023]
The attorney for the government should not, except with the approval of the United States Attorney and the appropriate Assistant Attorney General, enter into a plea agreement if the defendant maintains his/her innocence with respect to the charge or charges to which he/she offers to plead guilty. In a case in which the defendant tenders a plea of guilty but denies committing the offense to which he/she offers to plead guilty, the attorney for the government should make an offer of proof of all facts known to the government to support the conclusion that the defendant is in fact guilty. See also JM 9-16.015, which discusses the approval requirement.
Comment. JM 9-27.440 concerns plea agreements involving "Alford" pleas—guilty pleas entered by defendants who nevertheless claim to be innocent. In North Carolina v. Alford, 400 U.S. 25 (1970), the Supreme Court held that the Constitution does not prohibit a court from accepting a guilty plea from a defendant who simultaneously maintains his/her innocence, so long as the plea is entered voluntarily and intelligently and there is a strong factual basis for it. The Court reasoned that there is no material difference between a plea of nolo contendere, where the defendant does not expressly admit his/her guilt, and a plea of guilty by a defendant who affirmatively denies his/her guilt.
Despite the constitutional validity of Alford pleas, such pleas should be avoided except in the most unusual circumstances, even if no plea agreement is involved and the plea would cover all pending charges. As one court put it, "the public might well not understand or accept the fact that a defendant who denied his guilt was nonetheless placed in a position of pleading guilty and going to jail." See United States v. Bednarski, 445 F.2d 364, 366 (1st Cir. 1971). Consequently, it is often preferable to have a jury resolve the factual and legal dispute between the government and the defendant, rather than have government attorneys encourage defendants to plead guilty under circumstances that the public might regard as questionable or unfair. For this reason, government attorneys should not enter into Alford plea agreements, without the approval of the United States Attorney and the appropriate Assistant Attorney General. Apart from refusing to enter into a plea agreement, however, the degree to which the Department can express its opposition to Alford pleas may be limited. Although a court may accept a proffered plea of nolo contendere after considering "the parties' views and the public interest in the effective administration of justice," Fed. R. Crim. P. Rule 11 (a)(3), at least one court has concluded that it is an abuse of discretion to refuse to accept a guilty plea "solely because the defendant does not admit the alleged facts of the crime." United States v. Gaskins, 485 F.2d 1046, 1048 (D.C. Cir. 1973); see also United States v. Bednarski, supra; United States v. Boscoe, 518 F.2d 95 (1st Cir. 1975). Nevertheless, government attorneys can and should discourage Alford pleas by refusing to agree to terminate prosecutions where an Alford plea is proffered to fewer than all of the charges pending. As is the case with guilty pleas generally, if such a plea to fewer than all the charges is tendered and accepted over the government's objection, the attorney for the government should proceed to trial on any remaining charges not barred on double jeopardy grounds unless the United States Attorney, or in cases handled by Departmental attorneys, the appropriate Assistant Attorney General, approves dismissal of those charges.
Government attorneys should also take full advantage of the opportunity afforded by Rule 11(b)(3) in an Alford case to thwart the defendant's efforts to project a public image of innocence. Under Rule 11(b)(3), the court must be satisfied that there is "a factual basis" for a guilty plea. However, the Rule does not require that the factual basis for the plea be provided only by the defendant. See United States v. Navedo, 516 F.2d 29 (2d Cir. 1975); Irizarry v. United States, 508 F.2d 960 (2d Cir. 1974); United States v. Davis, 516 F.2d 574 (7th Cir. 1975). Accordingly, attorneys for the government in Alford cases should endeavor to establish as strong a factual basis for the plea as possible not only to satisfy the requirement of Rule 11(b)(3), but also to minimize the adverse effects of Alford pleas on public perceptions of the administration of justice.
[updated February 2018] [cited in JM 6-4.330; JM 9-28.1300]
All negotiated plea agreements to felonies or to misdemeanors negotiated from felonies shall be in writing and filed with the court.
Comment. JM 9-27.450 is intended to facilitate compliance with Rule 11 of the Federal Rules of Criminal Procedure and to provide a safeguard against misunderstandings that might arise concerning the terms of a plea agreement. Rule 11(c)(2) requires that a plea agreement be disclosed in open court (except upon a showing of good cause in which case disclosure may be made in camera), while Rule 11(c)(4) requires that the disposition provided for in the agreement be embodied in the judgment. Compliance with these requirements will be facilitated if the agreement has been reduced to writing in advance. Any time a defendant enters into a negotiated plea, that fact and the conditions of the agreement should also be maintained in the office case file. Written agreements will facilitate efforts by the Department to monitor compliance by prosecutors with Department policies and the guidelines. Documentation may include a copy of the court transcript at the time the plea is taken in open court.
There shall be within each office a formal system for approval of negotiated pleas. The approval authority shall be vested in at least a supervisory criminal Assistant United States Attorney, or a supervisory attorney of a litigating division in the Department of Justice, who will have the responsibility of assessing the appropriateness of the plea agreement under the policies of the Department of Justice pertaining to pleas. Where certain predictable fact situations arise with great frequency and are given identical treatment, the approval requirement may be met by a written instruction from the appropriate supervisor which describes with particularity the standard plea procedure to be followed, so long as that procedure is otherwise within Departmental guidelines. An example would be a border district that routinely deals with a high volume of illegal alien cases daily.
[updated February 2018]
The attorney for the government should oppose the acceptance of a plea of nolo contendere unless the United States Attorney and the appropriate Assistant Attorney General conclude that the circumstances of the case are so unusual that acceptance of such a plea would be in the public interest. See JM 9-16.010 (discussing the approval requirement).
Comment. Rule 11(a)(3) of the Federal Rules of Criminal Procedure, requires the court to consider "the parties' views and the public interest in the effective administration of justice" before it accepts a plea of nolo contendere. Thus, it is clear that a criminal defendant has no absolute right to enter a nolo contendere ("nolo") plea. The Department has long attempted to discourage the disposition of criminal cases by means of nolo pleas.
Government attorneys have been instructed for many years not to consent to nolo pleas except in the most unusual circumstances, and to do so then only with Departmental approval. Federal prosecutors should oppose the acceptance of a nolo plea, unless the United States Attorney and the appropriate Assistant Attorney General concludes that the circumstances are so unusual that acceptance of the plea would be in the public interest.
In any case in which a defendant seeks to enter a plea of nolo contendere, the attorney for the government should make an offer of proof in open court of facts known to the government that support the conclusion that the defendant has in fact committed the offense charged. See also JM 9-16.010.
Comment. If a defendant seeks to avoid admitting guilt by offering to plead nolo contendere, the attorney for the government should, in open court, make an offer of proof of facts known to the government that support the conclusion that the defendant has, in fact, committed the offense charged. This should be done in open court even in the rare case in which the government does not oppose the entry of a nolo plea. In addition, as is the case with respect to guilty pleas, the attorney for the government should urge the court to require the defendant to admit publicly the facts underlying the criminal charges. These precautions should minimize the effectiveness of any subsequent efforts by the defendant to portray himself/herself as technically liable, but not seriously culpable.
[updated February 2018]
If a plea of nolo contendere is offered over the government's objection, the attorney for the government should state for the record why acceptance of the plea would not be in the public interest; and he/she should also oppose the dismissal of any charges to which the defendant does not plead nolo contendere.
Comment. When a plea of nolo contendere is offered over the government's objection, the prosecutor should take full advantage of Rule 11(a)(3) of the Federal Rules of Criminal Procedure, to state for the record why acceptance of the plea would not be in the public interest. In addition to reciting facts that could be proved to show the defendant's guilt, the prosecutor should bring to the court's attention whatever arguments exist for rejecting the plea. At the very least, a forceful presentation should make it clear to the public that the government is unwilling to condone the entry of a special plea that may help the defendant avoid legitimate consequences of his/her guilt. If the nolo plea is offered to fewer than all charges, the prosecutor should also oppose the dismissal of the remaining charges.
[updated February 2018]
Except as hereafter provided, the attorney for the government may, with supervisory approval, enter into a non-prosecution agreement in exchange for a person's cooperation when, in his/her judgment, the person's timely cooperation appears to be necessary to the public interest and other means of obtaining the desired cooperation are unavailable or would not be effective.
Comment.
It is important to note that these provisions apply only if the case involves an agreement with a person who might otherwise be prosecuted. If the person reasonably is viewed only as a potential witness rather than a potential defendant, and the person is willing to cooperate, there is no need to consult these provisions.
Another reason for using an alternative to a non-prosecution agreement to obtain cooperation concerns the practical advantage in terms of the person's credibility if he/she testifies at trial. If the person already has been convicted, either after trial or upon a guilty plea, for participating in the events about which he/she testifies, his/her testimony is apt to be far more credible than if it appears to the trier of fact that he/she is getting off "scot free." Similarly, if his/her testimony is compelled by a court order, he/she cannot properly be portrayed by the defense as a person who has made a "deal" with the government and whose testimony is, therefore, suspect; his/her testimony will have been forced from him/her, not bargained for.
In some cases, however, there may be no effective means of obtaining the person's timely cooperation short of entering into a non-prosecution agreement. The person may be unwilling to cooperate fully in return for a reduction of charges, the delay involved in bringing him/her to trial might prejudice the investigation or prosecution in connection with which his/her cooperation is sought and it may be impossible or impractical to rely on the statutory provisions for compulsion of testimony or production of evidence. One example of the latter situation is a case in which the cooperation needed does not consist of testimony under oath or the production of information before a grand jury or at trial. Other examples are cases in which time is critical, or where use of the procedures of 18 U.S.C. § 6001-6003 would unreasonably disrupt the presentation of evidence to the grand jury or the expeditious development of an investigation, or where compliance with the statute of limitations or the Speedy Trial Act precludes timely application for a court order.
[updated June 2023]
In determining whether a person's cooperation may be necessary to the public interest, the attorney for the government, and those whose approval is necessary, should weigh all relevant considerations, including:
Comment. This section is intended to assist federal prosecutors, and those whose approval they must secure, in deciding whether a person's cooperation appears to be necessary to the public interest. The considerations listed here are not intended to be an exhaustive list or to require a particular decision in a particular case. Rather they are meant to focus the decision-maker's attention on factors that probably will be controlling in the majority of cases.
It is also important to consider whether the person has a background of cooperation with law enforcement officials, either as a witness or an informant, and whether he/she has previously been the subject of a compulsion order under 18 U.S.C. §§ 6001-6003 or has escaped prosecution by virtue of an agreement not to prosecute. Such information regarding compulsion orders may be available by telephone from the Policy and Statutory Enforcement Unit in the Office of Enforcement Operations of the Criminal Division.
[updated November 2022]
In entering into a non-prosecution agreement, the attorney for the government should, if practicable, explicitly limit the scope of the government's commitment to:
Comment. The attorney for the government should exercise extreme caution to ensure that his/her non-prosecution agreement does not confer "blanket" immunity on the witness. Thus, for example, he/she should attempt to limit his/her agreement to non-prosecution based on the testimony or information provided. Such an "informal use immunity" agreement has two advantages over an agreement not to prosecute the person in connection with a particular transaction: first, it preserves the prosecutor's option to prosecute on the basis of independently obtained evidence if it later appears that the person's criminal involvement was more serious than it originally appeared to be; and second, it encourages the witness to be as forthright as possible since the more he/she reveals the more protection he/she will have against a future prosecution. To further encourage full disclosure by the witness, it should be made clear in the agreement that the government's forbearance from prosecution is conditioned upon the witness's testimony or production of information being complete and truthful, and that failure to testify truthfully may result in a perjury prosecution.
Even if it is not practicable to obtain the desired cooperation pursuant to an "informal use immunity" agreement, the attorney for the government should attempt to limit the scope of the agreement in terms of the testimony and transactions covered, bearing in mind the possible effect of his/her agreement on prosecutions in other districts.
It is important that non-prosecution agreements be drawn in terms that will not bind other federal prosecutors or agencies without their consent. Thus, if practicable, the attorney for the government should explicitly limit the scope of his/her agreement to non-prosecution within his/her district. If such a limitation is not practicable and it can reasonably be anticipated that the agreement may affect prosecution of the person in other districts, the attorney for the government contemplating such an agreement shall communicate the relevant facts to the appropriate United States Attorney and/or Assistant Attorney General. United States Attorneys may not make agreements that prejudice other litigating divisions, without the agreement of all affected divisions. See also JM 9-16.000 et seq. for more information regarding plea agreements.
Finally, the attorney for the government should make it clear that his/her agreement relates only to non-prosecution and that he/she has no independent authority to promise that the witness will be admitted into the Department's Witness Security program or that the Marshal's Service will provide any benefits to the witness in exchange for his/her cooperation. This does not mean, of course, that the prosecutor should not cooperate in making arrangements with the Marshal's Service necessary for the protection of the witness in appropriate cases. The procedures to be followed in such cases are set forth in JM 9-21.000.
[updated February 2018]
The attorney for the government should not enter into a non-prosecution agreement in exchange for a person's cooperation without first obtaining the approval of the appropriate Assistant Attorney General when:
Comment. JM 9-27.640 sets forth special cases that require approval of non-prosecution agreements by the appropriate Assistant Attorney General. Subparagraph (1) covers cases in which existing statutory provisions and departmental policies require that, with respect to certain types of offenses, the Attorney General, the Deputy Attorney General, or an Assistant Attorney General be consulted or give his/her approval before prosecution is declined or charges are dismissed. See e.g., JM 6-4.245 (tax offenses); JM 9-41.010 (bankruptcy frauds); JM 9-90.020 (national security-related offenses); JM 9-2.400 (for a complete listing of all prior approval and consultation requirements). An agreement not to prosecute resembles a declination of prosecution or the dismissal of a charge in that the end result in each case is similar: a person who has engaged in criminal activity is not prosecuted or is not prosecuted fully for his/her offense. Accordingly, attorneys for the government should obtain the approval of the appropriate Assistant Attorney General before agreeing not to prosecute in any case in which consultation or approval would be required for a declination of prosecution or dismissal of a charge.
Subparagraph (2) sets forth other situations in which the attorney for the government should obtain the approval of an Assistant Attorney General, of a proposed agreement not to prosecute in exchange for cooperation. Generally speaking, the situations described will be cases of an exceptional or extremely sensitive nature, or cases involving individuals or matters of major public interest. In a case covered by this provision that appears to be of an especially sensitive nature, the Assistant Attorney General should, in turn, consider whether it would be appropriate to notify the Attorney General or the Deputy Attorney General.
[updated February 2018]
No district or division shall make any agreement, including any agreement not to prosecute, which purports to bind any other district(s) or division without the approval of the United States Attorney(s) in each affected district and/or the appropriate Assistant Attorney General .
The requesting district/division shall make known to each affected district/division the following information:
See JM 16.030 for a discussion of the requirement for consultation with investigative agencies and victims regarding pleas.
[updated February 2018]
In a case in which a non-prosecution agreement is reached in return for a person's cooperation, the attorney for the government should ensure that the case file contains a memorandum or other written record setting forth the terms of the agreement. The memorandum or record should be signed or initialed by the person with whom the agreement is made or his/her attorney.
Comment. The provisions of this section are intended to serve two purposes. First, it is important to have a written record in the event that questions arise concerning the nature or scope of the agreement. Such questions are certain to arise during cross-examination of the witness, particularly since the existence of the agreement should be disclosed to defense counsel pursuant to the requirements of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). The exact terms of the agreement may also become relevant if the government attempts to prosecute the witness for some offense in the future. Second, such a record will facilitate identification by government attorneys (in the course of weighing future agreements not to prosecute, plea agreements, pre-trial diversion, and other discretionary actions) of persons whom the government has agreed not to prosecute.
The principal requirements of the written record are that it be sufficiently detailed that it leaves no doubt as to the obligations of the parties to the agreement, and that it be signed or initialed by the person with whom the agreement is made and his/her attorney, or at least by one of them.
[updated February 2018]
During the sentencing phase of a federal criminal case, the attorney for the government should assist the sentencing court by:
Comment. Sentencing is a critical stage in a case, and prosecutors play an indispensable role in advocating for just sentences. A prosecutor must be familiar with the guidelines generally and with the specific guideline provisions applicable to the case. A prosecutor should, as provided in JM 9-27.720 and 9-27.750, endeavor to ensure the accuracy and completeness of the information upon which the sentencing decisions will be based. Department policy requires that prosecutors always be candid with the court, the probation office, and the public as to the full extent of the defendant’s conduct and culpability, regardless of whether the charging document includes such specificity. In addition, as provided in JM 9-27.730, a prosecutor should offer recommendations with respect to the sentence to be imposed.
[updated June 2023]
In order to ensure that the relevant facts are brought to the attention of the sentencing court fully and accurately, the attorney for the government should:
Comment.
[updated February 2018]
The attorney for the government should make sentencing recommendations based on an individualized assessment of the nature and circumstances of the offense and the history and characteristics of the defendant, without improper consideration of the defendant’s race, religion, gender, ethnicity, national origin, sexual orientation, or political association, activities, or beliefs.
When making a sentencing recommendation, the attorney for the government should seek a sentence that is sufficient, but not greater than necessary, to:
In many cases, the appropriate balance among these factors will lead to a recommendation for a sentence within the advisory range resulting from application of the Sentencing Guidelines, and prosecutors should generally continue to advocate for a sentence within that range. Prosecutors should consider whether the departure provisions under the guidelines are appropriate, and, if so, should advocate for their application accordingly. When advocating at sentencing, prosecutors must fully and accurately alert the court to all known relevant facts and criminal history and explain why the interests of justice warrant their sentencing recommendations. Before recommending a sentence that reflects an upward departure or variance from the advisory guideline range, the attorney for the government must obtain supervisory approval.
Comment. Congress has identified the factors courts must consider when imposing sentence. These factors are set forth in 18 U.S.C. § 3553, and are listed above. Absent a specific provision in a plea agreement, the attorney for the government is not legally obligated to make a recommendation at sentencing. However, the interests of justice and the public interest often will be best served if the prosecutor handling the matter makes a recommendation as to an appropriate sentence.
1. Sentences Above or Below the Guidelines. Although consistent application of the guidelines encourages uniformity throughout the federal system, it is appropriate for prosecutors to consider whether the penalty yielded by the advisory guideline range is proportional to the seriousness of the defendant’s conduct and would achieve the purposes of criminal sentencing articulated in § 3553(a). Based on an individualized assessment of the facts and circumstances of a particular case, a prosecutor may conclude that a sentence request for a departure or variance above or below the advisory guidelines is warranted. All prosecutorial recommendations for departures or variances—upward or downward—must be supported by specific and articulable factors and documented in the case file. Recommendations for upward departures and variances should also be approved by a supervisor.
2. Balancing Sentencing Factors. The attorney for the government should recognize that not all of the factors set forth in § 3553 may be relevant or of equal importance in every case and that, for a particular offense committed by a particular offender, one of the purposes, or a combination of purposes, may be of overriding importance.
3. Conveying Sentencing Recommendations to the Court. The attorney for the government should be guided by the practice of the court concerning the manner and form in which sentencing recommendations are made. If the government’s position with respect to the sentence to be imposed is related to a plea agreement, that position must be made known to the court at the time the plea is entered. In other situations, the government’s position might be conveyed to the probation officer during the presentence investigation; to the court in the form of a sentencing memorandum filed in advance of the sentencing hearing; or to the court orally at the time of the hearing. Courts often find it helpful when federal prosecutors, in addition to their oral advocacy at the sentencing hearing, file with the court in advance of sentencing a memorandum setting forth the recommended sentence with supporting reasons.
4. Recommendations Required by Plea Agreements. As set forth in JM 9-27.400, prosecutors may enter into plea agreements that require the government to make – or not make – particular recommendations at sentencing. If the prosecutor has entered into a plea agreement calling for the government to take a certain position with respect to the sentence to be imposed, and the defendant has entered a guilty plea in accordance with the terms of the agreement, the prosecutor must perform his/her part of the bargain or risk having the plea invalidated. Machibroda v. United States, 368 U.S. 487, 493 (1962); Santobello v. United States, 404 U.S. 257, 262 (1971).
5. Substantial Assistance. When making a sentencing recommendation, the attorney for the government may consider whether, and to what extent, the defendant has provided substantial assistance in the investigation or prosecution of others. The attorney for the government must obtain supervisory approval before filing any substantial assistance motion pursuant to section 5K.1.1 of the Sentencing Guidelines or Federal Rule of Criminal Procedure 35. This requirement is addressed in JM 9-27.400.
[updated June 2023]
As set forth in JM 9-27.730, although in many cases the appropriate balance among the 18 U.S.C. § 3553(a) factors will lead to a recommendation for a sentence within the advisory range resulting from the application of the Sentencing Guidelines, there are cases in which such a sentence may not be proportional to the seriousness of the defendant’s conduct or achieve the purposes of criminal sentencing as articulated in 18 U.S.C. § 3553(a). In such cases, prosecutors may conclude that a request for a departure or variance above or below the guidelines range is warranted.
In the context of drug cases, requests for departures or variances may be particularly justified in the following circumstances:
In crack cocaine cases, prosecutors should advocate for a sentence consistent with the guidelines for powder cocaine rather than crack cocaine. Where a court concludes that the crack cocaine guidelines apply, prosecutors should generally support a variance to the guidelines range that would apply to the comparable quantity of powder cocaine.
Whatever the ultimate sentencing recommendation, prosecutors must always be candid with the court, the probation office, and the public as to the full extent of the defendant’s conduct and culpability, including the type and quantity of drugs involved in the offense and the quantity attributable to the defendant’s role in the offense, even if the charging document lacks such specificity.
[added June 2023]
The attorney for the government should oppose attempts by the court to impose any sentence that is: (1) not supported by the law or the evidence; (2) unreasonable in light of 18 U.S.C. § 3553(a); (3) below the statutory minimum; (4) above the statutory maximum; or (5) based on a prohibited factor, such as race, religion, gender, ethnicity, national origin, sexual orientation, or political association, activities, or beliefs.
Comment. The prosecutor, with Departmental approval, may appeal a sentence which is unreasonable, unlawful or based on a prohibited factor. The requirements for reporting and seeking approval to appeal adverse sentencing decisions are set forth in JM 9-2.170.
[updated February 2018]
[updated February 2018]
In all public filings and proceedings, federal prosecutors should remain sensitive to the privacy and reputation interests of uncharged parties. In the context of public plea and sentencing proceedings, this means that, in the absence of some significant justification, it is not appropriate to identify (either by name or unnecessarily specific description), or cause a defendant to identify, a party unless that party has been publicly charged with the misconduct at issue. In the unusual instance where identification of an uncharged party during a plea or sentencing hearing is justified, and absent exigent circumstances, prosecutors should obtain the approval of the appropriate United States Attorney or Assistant Attorney General prior to the hearing. See JM 9-16.500. In other less predictable contexts, prosecutors should strive to avoid unnecessary public references to wrongdoing by uncharged parties. With respect to bills of particulars that identify unindicted co-conspirators, prosecutors generally should seek leave to file such documents under seal. Prosecutors shall comply, however, with any court order directing the public filing of a bill of particulars.
As a series of cases makes clear, there is ordinarily “no legitimate governmental interest served” by the government’s public allegation of wrongdoing by an uncharged party, and this is true “[r]egardless of what criminal charges may . . . b[e] contemplated by the Assistant United States Attorney against the [third party] for the future.” In re Smith, 656 F.2d 1101, 1106-07 (5th Cir. 1981). Courts have applied this reasoning to preclude the public identification of unindicted parties in plea hearings, sentencing memoranda, and other government pleadings. See Finn v. Schiller, 72 F.3d 1182 (4th Cir. 1996); United States v. Briggs, 514 F.2d 794 (5th Cir. 1975); United States. v Anderson, 55 F. Supp. 2d 1163 (D. Kan 1999); United States v. Smith, 992 F. Supp. 743 (D.N.J. 1998); see also JM 9-11.130.
In most cases, any legitimate governmental interest in referring to uncharged parties can be advanced through means other than those condemned in this line of cases. For example, in those cases where the offense to which a defendant is pleading guilty requires as an element that a third party have a particular status (e.g., 18 U.S.C. § 203(a)(2), Unlawful Compensation to Members of Congress), the third party can usually be referred to generically (“a Member of Congress”), rather than identified specifically (“Senator X”). Similarly, when the defendant engaged in joint criminal conduct with others, generic references (“another individual”) to the uncharged parties are typically sufficient for purposes of a guilty plea.
For the same reasons, following the conclusion of a case (whether by closing of an investigation or conclusion of a prosecution), DOJ personnel should not publicly disclose the identity (either by name or unnecessarily specific description) of uncharged parties absent approval of the United States Attorney or Assistant Attorney General, or their designee. When evaluating whether to grant approval, the United States Attorney or Assistant Attorney General, or their designee, may consider factors such as:
Public statements concerning the identity of uncharged parties following the conclusion of a case are permissible only if the legitimate and compelling government interests served, including law enforcement interests, substantially outweigh the privacy and reputational interests of the uncharged parties. To the extent a public statement regarding uncharged parties meets this standard and is otherwise permitted by law, such disclosure must be limited to the extent necessary to advance the government interests served by the disclosure.
Significant justification for identifying uncharged parties commonly exists where it is ordered by the Court, is necessary to protect the integrity of the case, or assists the government in meeting its burden of proof. In these instances, the use of generalized terms or descriptions may be unfeasible or insufficient or may create confusion or false impressions for the judge or jury. For example, in conspiracy trials, the identity and conduct of uncharged parties are often highly relevant to the government’s case, and it is not feasible to shield that individual’s identity in proving the case. In such instances where significant justification exists relating to court proceedings and pleadings, prior approval by the appropriate United States Attorney or Assistant Attorney General is not necessary.
[updated February 2024]