DIRECTIVE 99-21

I. SUMMARY OF INTEGRATED ENFORCEMENT POLICY

This Directive sets forth the policy of the Environment and Natural Resources Division concerning coordination of civil and criminal enforcement by Division attorneys⁽²⁾. Most statutes enforced by the Environmental Crimes ("ECS"), Environmental Enforcement ("EES"), and Environmental Defense ("EDS") Sections authorize both civil and criminal enforcement. Civil litigation by the Division's other sections may bring to light possible criminal violations of environmental or other laws. Effective enforcement of environmental law requires that the Division obtain appropriate relief for violations of the law.

To that end this memo is primarily directed at those Sections involved in the enforcement of laws designed to address pollution problems and wildlife protection. Specifically, ECS, EDS, EES and Wildlife and Marine Resources (WMR). Other Sections may be covered by this memo in individual circumstances. In general, ECS, EDS, EES and WMR shall evaluate their cases to determine whether civil or criminal enforcement, or both, is appropriate. The type of enforcement assigned the case by the referring agency will be given careful consideration, and section managers will consult with the agency in making this determination. When it appears that a parallel proceeding may be appropriate, civil and criminal attorneys should exchange information and evidence received from agencies as early as possible in the referral process, conduct joint investigations where appropriate, and consult together on an ongoing basis, subject to the legal and ethical constraints detailed in this memo. Section management should coordinate closely with trial attorneys in this process.

Restrictions governing coordination among criminal and civil attorneys are set forth in this Policy. These restrictions shall be complied with except as provided by the Assistant Attorney General in a particular case. The Division will continue to provide training to educate civil and criminal attorneys about the issues and concerns affecting their counterparts.

Sections IV, V, VI, and VII below do not apply when the Division is defending a civil lawsuit and pursuing a criminal investigation or prosecution involving the same or related matters. In such cases, the Assistant Attorney General (AAG) may issue instructions appropriate for the circumstances. When appropriate a case-specific memo may also be prepared providing direction to the trial attorneys.

In cases where the criminal case is being handled by a United States Attorneys Office, and the civil case by EDS, EES or WMR it may be appropriate to prepare an internal memo to provide direction for the EDS, EES or WMR trial attorneys.

The Policy supersedes Land and Natural Resources Division Directive No. 5-87, October 13, 1987, regarding parallel proceedings.

II. GOALS OF INTEGRATED ENFORCEMENT

The goal underlying this Policy is to assure that the Division's exercise of civil and criminal enforcement authority will address the effects of violations, deter future violations by the violator and by others, and impose appropriate penalties for violations of the law.

III. LIMITATIONS IN INTEGRATED ENFORCEMENT CASES

The Division will exercise its enforcement discretion as set forth below. Some of the following limitations may not be required by law, and are established as a matter of policy or to avoid unnecessary litigation issues.

Attorneys may only conduct civil and administrative discovery when justified by genuine civil or administrative case purposes. The administrative and civil discovery process may not be used as a pretext to obtain information for a criminal investigation.

Notwithstanding the above limitations, any information obtained as the result of legitimate civil and administrative discovery may be freely shared with criminal enforcement attorneys.

Federal Rule of Criminal Procedure 6(e) ("Rule 6(e)"), governing the disclosure of information relating to grand jury proceedings, must be strictly complied with at all times.

Information obtained in a criminal investigation may be shared with civil attorneys, subject to the requirements that: (a) the information was obtained for a criminal enforcement purpose, and (b) the disclosure of such information does not violate Rule 6(e).

After a grand jury has been convened in an investigation, ECS attorneys will not share with civil attorneys information obtained from the criminal investigation unless the information is part of the pre-grand jury record and the fact that it is part of the pre-grand jury record is documented, or there has been court authorization to do so.⁽³⁾

Although the availability of civil relief may be considered in making criminal charging decisions, see § United States Attorneys Manual 9-27.250, criminal prosecution will not be used as a threat to obtain civil settlement. Conversely, the Division will not use civil enforcement as a threat to resolve a criminal matter.

The Division will not permit a defendant to trade civil relief in exchange for a reduction in criminal penalty.

Decisions about charging and negotiating plea agreements will be made solely by criminal attorneys and their supervisors, and decisions about filing and settling civil claims will be made solely by civil attorneys and their supervisors. Unless directed to the contrary by the AAG of the Division, criminal plea agreements and civil settlements should be negotiated separately by attorneys working within the appropriate unit of ENRD, and must separately satisfy the appropriate criminal and civil criteria. Division attorneys will discuss joint civil and criminal resolution with defense counsel only after an inquiry about such joint resolution has been made by defense counsel.

With strict adherence to these requirements, Division civil and criminal attorneys have substantial flexibility to coordinate investigations and cases in order to protect human health, the environment, and other interests of the United States, and to obtain just results.

IV. PROCEDURES GOVERNING COORDINATION AMONG ECS, EES, AND EDS

This section specifies procedures for parallel proceedings involving the Environment and Natural Resources Division.

a. Cross-Referrals

ECS, EDS and EES Section Chiefs should establish procedures for submitting the facts of a case to other appropriate sections for review, as well as for tracking and reporting the progress and outcome of other sections' review. The Section Chiefs should also establish procedures for notifying sections, as appropriate, that have expressed an interest in a case of the milestones that occur, such as conducting settlement negotiations. See pages 5 - 6.

Civil attorneys should consider the possibility that their civil case may include criminal conduct, and should remain alert for information indicating criminality. A civil case yielding evidence of falsification of data or concealment of evidence, or repeated violations by the same company or individual, should raise a red flag warning of potential criminal liability. If a referral package received from an agency yields potential evidence of criminal violations, or if such potential evidence appears at any time during the course of civil proceedings, the attorney handling the matter should consult with management and the matter should be brought to the attention of ECS.

Similarly, ECS attorneys should be alert to civil enforcement that may be appropriate, for example, when it appears that an injunction or remedial action is necessary, or when an investigation reveals a violation of law but there is insufficient evidence of criminal intent. ECS should adopt procedures to assure that, when appropriate, matters that ECS declines for criminal prosecution are referred to EES or EDS. ECS attorneys may not include in the materials sent to EES or EDS grand jury material subject to Rule 6(e), unless a court order is obtained.

b. Joint Investigations

When a case may be appropriate for both criminal and civil enforcement, the Division encourages joint investigations prior to initiating the grand jury process. When a joint investigation is to be undertaken, the AAG may write a memorandum to the attorneys involved in order to provide guidance on significant parallel proceedings issues likely to arise. Civil and criminal attorneys jointly investigating a matter may together undertake fact-finding activities such as interviewing witnesses and gathering documents. The circumstances of each case will dictate the extent to which the investigation should be undertaken jointly. Once the grand jury process has begun, joint investigation activity should not be initiated or continued without the approval of a DAAG.
 

In any joint investigation, civil and criminal attorneys must each have a good faith basis for every information-gathering action taken, independent of the investigatory needs of their counterpart. In cases where criminal prosecution is declined before the grand jury process has commenced, civil attorneys generally may have access to information obtained in the criminal investigation, subject to confidentiality requirements, such as those protecting informant identity and the criminal investigatory process.
 

Civil attorneys engaged in litigation against a defendant who is the subject of a criminal investigation should not inform the defendant about that investigation. Civil attorneys shall not make any statements to a witness regarding the status of a criminal investigation. Civil attorneys should refer all questions by witnesses regarding a criminal investigation to the appropriate criminal attorney.
 

When a joint investigation is under way, but before the grand jury process has begun, civil and criminal attorneys should create a record of information that has been gathered through means other than the grand jury process. The determination to convene a grand jury is to be made solely by ECS.
 

c. Consultation

Criminal and civil attorneys may consult about cases (including the sharing of information) when there has not been a referral from one section to another and when there has not been a joint investigation, subject to requirements set forth in Section III, including Rule 6(e). For example, if civil attorneys are not involved in the investigation but there are reasons to consider civil enforcement (i.e. the need for injunctive relief), ECS may provide information to the civil attorneys before obtaining the information through the grand jury process. Attorneys should be aware that, under Hudson v. United States, 118 S. Ct. 488 (1998), neither the imposition of a civil penalty nor a criminal disposition will bar subsequent proceedings under the other option against the same entity for the same violations. However, it is possible that a civil penalty or sanction could be so large or severe as to be deemed punitive and, in such circumstances, successive civil and criminal proceedings might be barred as a violation of the Double Jeopardy Clause. Thus, attorneys should be aware of anticipated fines or penalties in a parallel proceeding to avoid any unintended consequences leading to the barring of other relief.
 

Attorneys should consult on legal issues to ensure that the Division takes consistent positions on interpretation of regulations and statutes.
 

d. Parallel proceedings after commencement of the grand jury process
Once the grand jury process has begun, ECS attorneys should not share with civil attorneys information obtained from the criminal investigation, unless the information is part of the pre-grand jury record and that fact has been documented. This requirement exceeds the legal requirements imposed by Rule 6(e) and is established by the Division as a matter of policy and to avoid litigation. A civil attorney who needs information related to a grand jury proceeding should consult with section management and ECS about seeking a court order under Rule 6(e) allowing the disclosure of grand jury information.

After commencement of a grand jury proceeding, civil attorneys may continue to obtain information through the civil discovery process, so long as they have a good faith basis for seeking the information for the civil case. Again, despite this admonition, once information is obtained by a civil attorney it may be freely provided to criminal enforcement attorneys. ECS shall not direct civil discovery strategy.
When civil attorneys have used expert witnesses in developing the civil case, these experts will be made available to the criminal attorneys, but will not be provided information subject to Rule 6(e). Criminal witnesses may sometimes be made available for use in civil cases, to be determined on a case-by-case basis and subject to the limitations of Rule 6(e).

V. PROCEDURES SPECIFIC TO THE WILDLIFE AND MARINE RESOURCES SECTION
 

This section describes procedures for parallel proceedings involving WMR.
WMR handles civil and criminal cases. The section's criminal docket involves prosecutions under various wildlife statutes. See U.S. Attorney's Manual Chapter 5-10. The section's civil responsibility includes (a) defending challenges to agency action, (b) bringing actions seeking civil injunctive relief for violations of wildlife statutes, and (c) seeking judicial civil forfeiture as a remedy for criminal conduct. Id. To date, the parallel proceedings that have arisen involving WMR have primarily involved forfeiture.⁽⁴⁾

For criminal cases involving forfeiture, WMR will follow the following guidelines:

1) WMR will comply with this memo except Section IV.⁽⁵⁾

2) For cases involving forfeiture, WMR will comply with Departmental Directive 94-7, Revised Policy Regarding Forfeiture by Settlement and Plea Bargaining in Civil and Criminal Actions, issued by the Executive office for Asset Forfeiture on November 9, 1994, as it may be amended. An attorney in WMR working on such a matter should consult with section management about compliance with this policy and Directive 94-7. In a case involving untypical forfeiture issues, the Section will consult with the appropriate DAAG or the AAG, and the AAG may provide direction through a case-specific memorandum. Examples of issues that require consultation with the DAAG or AAG are where:

        a) civil discovery relating to forfeiture is likely to be necessary;

        b) there is a significant element of investigation that is related only to civil forfeiture and not to prosecution of the underlying criminal offense; or

        c) there is a perceived need for disclosure of information relating to a grand jury proceeding to anyone other than (i) a government attorney who is working on the criminal prosecution or that attorneys' supervisors⁽⁶⁾ or (ii) a person identified as provided in F.R.Crim.P. 6(e)(3)(A)(ii) and (B).
 

3) WMR may also be involved in parallel proceedings other than cases involving forfeiture: for example, parallel criminal and civil enforcement under the Endangered Species Act. See 16 U.S.C. §§ 1540(b) and 1540(e)(6). In any parallel proceeding handled exclusively within WMR, other than a criminal case involving forfeiture, WMR will seek case-specific written guidance from the appropriate DAAG or the AAG, to include specific procedures WMR should follow during the course of the parallel proceedings. Whenever one prong of a parallel proceeding (whether criminal or civil) involves another component within the Department, either another Division or a United States Attorney's Office, WMR will also seek case-specific written guidance from the appropriate DAAG or the AAG and consult with the other Department component to determine what procedures WMR should follow.
 

VI. PROCEDURES FOR OTHER SECTIONS
 

If any section other than ECS, EES, EDS, or WMR is involved in a parallel proceeding, it will seek a memo from the Assistant Attorney General outlining case-specific procedures to be followed.
 

VII. CHARGING AND LITIGATION DECISIONS
 

Civil attorneys and their supervisors will make decisions about civil cases. Criminal attorneys and their supervisors will make decisions about criminal cases. The AAG has responsibility for related civil and criminal cases handled by the Division. The Deputy Assistant Attorneys General may, as directed by the AAG, supervise related civil and criminal cases or coordinate among themselves in the supervision of such cases.
 

When proceeding with both criminal and civil enforcement, the Division generally will delay the civil case until criminal proceedings are resolved.⁽⁷⁾ However, the Division will assess the circumstances of each matter when considering whether to proceed simultaneously with civil and criminal proceedings. Factors that may weigh in favor of simultaneous proceedings include:
 

(1) the civil violations are ongoing and present a threat to public health or the environment such that an injunction is appropriate;

(2) defendant's assets are in danger of dissipation;

(3) there is an imminent statute of limitations or bankruptcy deadline for the civil claim;

(4) there is only a marginal relationship between the civil and criminal violations; or

(5) civil proceedings are in an advanced stage when the potential criminal liability is brought to light.

When a statute of limitations or a need for injunctive relief requires filing a civil complaint before resolution of a criminal matter, the civil attorneys should generally seek a stay of at least the penalty portion of the civil proceedings.

If such a stay is not sought, the civil discovery process could be used affirmatively by a defendant to seek information about the status and direction of the government's criminal investigation. This could potentially result in destruction of crucial evidence or undermine undercover or other investigative strategies.
 
 

VIII. GLOBAL SETTLEMENTS

The resolution of civil and criminal proceedings will be governed by the Division's policy on global settlements.
 
 

IX. TRAINING

The Division will continue to provide training to its attorneys about criminal and civil cases, the benefits of integrated enforcement, important issues that arise in the two types of cases, and implementation of this Policy. For example, ECS will help train civil attorneys to identify potential criminal liability in civil cases, to recognize Fourth and Fifth Amendment concerns that may not be implicated in cases involving only civil process, and to understand the criminal process. EES and EDS will help educate ECS attorneys about civil process, civil remedies and the elements of a civil case so they will be able to determine when a declined ECS case should be submitted to EES or EDS, and when a case slated to remain on ECS' docket should be reviewed by civil attorneys due to issues such as injunctive relief or limitations.
 

X. ENFORCEABILITY OF GUIDELINES
This policy provides only internal guidelines for the Environment and Natural Resources Division of the Justice Department. The guidelines do not create any rights, substantive or procedural that are enforceable at law by any party. No limitations are hereby placed on otherwise lawful prerogatives of the Justice Department.
 

DATE:  April 20, 1999
 
 

_________/S/_________________________
Lois J. Schiffer
Assistant Attorney General
Environment and Natural
Resources Division

1. This action is taken pursuant to the authority set forth at 28 CFR § 0.130

2. Pursuant to the Attorney General's memorandum of July 28, 1998, United States Attorneys Offices have been directed to establish a system for coordinating criminal, civil and administrative law enforcement. The memorandum establishes guidelines for Environment and Natural Resources Division Attorneys and is written to be consistent with the Attorney General's memorandum.

3. See Federal Grand Jury Practice Manual (U.S. Dept. of Justice, Criminal Division, 1993) Chapter 4.

4. By contrast, forfeiture is not generally available as a remedy for criminal violation of environmental pollution-control statutes.

5.  Because any civil enforcement action that arises in WMR cases, whether one seeking civil injunctive relief or collection or forfeiture, remains within WMR's civil responsibility, cross-referrals to any other sections within the Division are not required. Consequently, procedures to coordinate parallel proceedings among other sections are unnecessary. The statutes enforced by WMR, with rare exceptions, most notably the Endangered Species Act, 16 U.S.C. 1540 (e)(6), do not authorize the Attorney General to initiate civil enforcement. Instead they authorize the very agencies empowered to enforce the statutes to assess civil penalties in administrative proceedings for non-criminal violations. The Attorney General may then be requested by the agency to initiate a civil action to collect any unpaid penalty. See the Lacey Act Amendments of 1981, 16 U.S.C. 3371 et seq.; Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d; the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.; and the Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 et seq.

6. See note 1.

7. Criminal proceedings typically precede civil actions because of Speedy Trial Act considerations, the more substantial deterrent and punitive effect of criminal sanctions, because courts may reduce criminal sentences after civil penalties have already been imposed, and because results in criminal cases can be used as collateral estoppel in favor of the government in a subsequent civil case on the same issues.