1. Investigating suspected or alleged offenses against the United States, seeUSAM 9-2.010;

2. Causing investigations to be conducted by the appropriate federal law enforcement agencies, see USAM 9-2.010;

3. Declining prosecution, see USAM 9-2.020;

4. Authorizing prosecution, see USAM 9-2.030;

5. Determining the manner of prosecuting and deciding trial related questions;

6. Recommending whether to appeal or not to appeal from an adverse ruling or decision, see USAM 9-2.170;

7. Dismissing prosecutions, see USAM 9-2.050; and

8. Handling civil matters related thereto which are under the supervision of the Criminal Division.

9-2.010 Investigations

9-2.020 Declining Prosecution

9-2.021 Armed Forces Enlistment as an Alternative to Federal Prosecution

9-2.022 Pretrial Diversion as an Alternative to Federal Prosecution

9-2.030 Authorizing Prosecution

9-2.031 Dual and Successive Prosecution Policy ("Petite Policy")

1. Statement of Policy: This policy establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding. See Rinaldi v. United States, 434 U.S. 22, 27, (1977); Petite v. United States, 361 U.S. 529 (1960). Although there is no general statutory bar to a federal prosecution where the defendant's conduct already has formed the basis for a state prosecution, Congress expressly has provided that, as to certain offenses, a state judgment of conviction or acquittal on the merits shall be a bar to any subsequent federal prosecution for the same act or acts. See 18 U.S.C. §§ 659, 660, 1992, 2101, 2117; see also 15 U.S.C. §§ 80a-36, 1282.
   The purpose of this policy is to vindicate substantial federal interests through appropriate federal prosecutions, to protect persons charged with criminal conduct from the burdens associated with multiple prosecutions and punishments for substantially the same act(s) or transaction(s), to promote efficient utilization of Department resources, and to promote coordination and cooperation between federal and state prosecutors.

   This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General.

   Satisfaction of the three substantive prerequisites does not mean that a proposed prosecution must be approved or brought. The traditional elements of federal prosecutorial discretion continue to apply. See Principles of Federal Prosecution, USAM 9-27.110.

   In order to insure the most efficient use of law enforcement resources, whenever a matter involves overlapping federal and state jurisdiction, federal prosecutors should, as soon as possible, consult with their state counterparts to determine the most appropriate single forum in which to proceed to satisfy the substantial federal and state interests involved, and, if possible, to resolve all criminal liability for the acts in question.

   Types of Prosecution to which This Policy Applies: This policy applies only to charging decisions; it does not apply to pre-charge investigations. Yet, where a prior prosecution has been brought based on substantially the same act(s) or transaction(s), a subsequent federal investigation should, generally speaking, initially focus on evidence relevant to determining whether a subsequent federal prosecution would be warranted in light of the three substantive prerequisites previously listed.

   Keeping in mind the distinction between charging decisions and precharge investigations, this policy applies whenever the contemplated federal prosecution is based on substantially the same act(s) or transaction(s) involved in a prior state or federal prosecution.

   This policy constitutes an exercise of the Department's prosecutorial discretion, and applies even where a prior state prosecution would not legally bar a subsequent federal prosecution under the Double Jeopardy Clause because of the doctrine of dual sovereignty (see Abbate v. United States, 359 U.S. 187 (1959)), or a prior prosecution would not legally bar a subsequent state or federal prosecution under the Double Jeopardy Clause because each offense requires proof of an element not contained in the other. See United States v. Dixon, 509 U.S. 688 (1993); Blockburger v. United States, 284 U.S. 299 (1932).

   This policy does not apply, and thus prior approval is not required, where the prior prosecution involved only a minor part of the contemplated federal charges. For example, a federal conspiracy or RICO prosecution may allege overt acts or predicate offenses previously prosecuted as long as those acts or offenses do not represent substantially the whole of the contemplated federal charge, and, in a RICO prosecution, as long as there are a sufficient number of predicate offenses to sustain the RICO charge if the previously prosecuted offenses were excluded.

   This policy does not apply, and thus prior approval is not required, where the contemplated federal prosecution could not have been brought in the initial federal prosecution because of, for example, venue restrictions, or joinder or proof problems.

   Please note that when there is no need for prior approval because this policy does not apply, all other approval requirements remain in force. One example of another approval requirement is the one requiring Criminal Division approval of all RICO indictments.

   Stages of Prosecution at which Policy Applies: This policy applies whenever there has been a prior state or federal prosecution resulting in an acquittal, a conviction, including one resulting from a plea agreement, or a dismissal or other termination of the case on the merits after jeopardy has attached.

   Once a prior prosecution reaches one of the above-listed stages this policy applies, and approval is required before a federal prosecution can be initiated or continued, even if an indictment or information already has been filed in the federal prosecution.

   An exception occurs, and this policy does not apply, if the federal trial has commenced and the prior prosecution subsequently reaches one of the above-listed stages. When, however, a federal trial results in a mistrial, dismissal, or reversal on appeal, and, in the interim, a prior prosecution has reached one of the above listed stages. When, however, a federal trial results in a mistrial, dismissal, or reversal on appeal, and, in the interim, a prior prosecution has reached one of the above listed stages, this policy applies.

   Substantive Prerequisites for Approval of a Prosecution Governed by this Policy. As previously stated there are three substantive prerequisites that must be met before approval will be granted for the initiation or a continuation of a prosecution governed by this policy.

   The first substantive prerequisite is that the matter must involve a substantial federal interest. This determination will be made on a case-by-case basis, applying the considerations applicable to all federal prosecutions. See Principles of Federal Prosecution, USAM 9-27.230. Matters that come within the national investigative or prosecutorial priorities established by the Department are more likely than others to satisfy this requirement.

   The second substantive prerequisite is that the prior prosecution must have left that substantial federal interest demonstrably unvindicated. In general, the Department will presume that a prior prosecution, regardless of result, has vindicated the relevant federal interest. That presumption, however, may be overcome when there are factors suggesting an unvindicated federal interest.

   The presumption may be overcome when a conviction was not achieved because of the following sorts of factors: first, incompetence, corruption, intimidation, or undue influence; second, court or jury nullification in clear disregard of the evidence or the law; third, the unavailability of significant evidence, either because it was not timely discovered or known by the prosecution, or because it was kept from the trier of fact's consideration because of an erroneous interpretation of the law; fourth, the failure in a prior state prosecution to prove an element of a state offense that is not an element of the contemplated federal offense; and fifth, the exclusion of charges in a prior federal prosecution out of concern for fairness to other defendants, or for significant resource considerations that favored separate federal prosecutions.

   The presumption may be overcome even when a conviction was achieved in the prior prosecution in the following circumstances: first, if the prior sentence was manifestly inadequate in light of the federal interest involved and a substantially enhanced sentence -- including forfeiture and restitution as well as imprisonment and fines -- is available through the contemplated federal prosecution, or second, if the choice of charges, or the determination of guilt, or the severity of sentence in the prior prosecution was affected by the sorts of factors listed in the previous paragraph. An example might be a case in which the charges in the initial prosecution trivialized the seriousness of the contemplated federal offense, for example, a state prosecution for assault and battery in a case involving the murder of a federal official.

   The presumption also may be overcome, irrespective of the result in a prior state prosecution, in those rare cases where the following three conditions are met: first, the alleged violation involves a compelling federal interest, particularly one implicating an enduring national priority; second, the alleged violation involves egregious conduct, including that which threatens or causes loss of life, severe economic or physical harm, or the impairment of the functioning of an agency of the federal government or the due administration of justice; and third, the result in the prior prosecution was manifestly inadequate in light of the federal interest involved.

   The third substantive prerequisite is that the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. This is the same test applied to all federal prosecutions. See Principles of Federal Prosecution, USAM 9-27.200 et seq. This requirement turns on the evaluation of the admissible evidence that will be available at the time of trial. The possibility that, despite the law and the facts, the fact-finder may acquit the defendant because of the unpopularity of some factor involved in the prosecution, or because of the overwhelming popularity of the defendant, or his or her cause, is not a factor that should preclude a proposed prosecution. Also, when in the case of a prior conviction the unvindicated federal interest in the matter arises because of the availability of a substantially enhanced sentence, the government must believe that the admissible evidence meets the legal requirements for such sentence.

   Procedural prerequisite for Bringing a Prosecution Governed by This Policy. Whenever a substantial question arises as to whether this policy applies to a prosecution, the matter should be submitted to the appropriate Assistant Attorney General for resolution. Prior approval from the appropriate Assistant Attorney General must be obtained before bringing a prosecution governed by this policy. The United States will move to dismiss any prosecution governed by this policy in which prior approval was not obtained, unless the Assistant Attorney General retroactively approves it on the following grounds: first, that there unusual or overriding circumstances justifying retroactive approval, and second, that the prosecution would have been approved had approval been sought in a timely fashion. Appropriate administrative action may be initiated against prosecutors who violate this policy.

   Reservation and Superseding Effect: for Internal Guidance Only, No Substantive or Procedural Rights Created. This policy has been promulgated solely for the purpose of internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, that are enforceable at law by any party in any matter, civil or criminal, nor does it place any limitations on otherwise lawful litigative prerogatives of the Department of Justice.

   All of the federal circuit courts that have considered the question have held that a criminal defendant can not invoke the Department's policy as a bar to federal prosecution. See, e.g., United States v. Snell, 592 F.2d 1083 (9th Cir. 1979); United States v. Howard, 590 F.2d 564 (4th Cir. 1979); United States v. Frederick, 583 F.2d 273 (6th Cir. 1978); United States v. Thompson, 579 F.2d 1184 (10th Cir. 1978) (en banc); United States v. Wallace, 578 F.2d 735 (5th Cir. 1978); United States v. Nelligan, 573 F.2d 251 (5th Cir. 1978); United States v. Hutul, 416 F.2d 607 (7th Cir. 1969). The Supreme Court, in analogous contexts, has concluded that Department policies governing its internal operations do not create rights which may be enforced by defendants against the Department. See United States v. Caceres, 440 U.S. 471 (1979); Sullivan v. United States, 348 U.S. 170 (1954).

   This policy statement supersedes all prior Department guidelines and policy statements on the subject.

9-2.032 Notification to the Criminal Division of Certain Prosecutions of Attorneys

1. In either of the following two circumstances, the United States Attorney or Departmental Component Head shall notify the Assistant Attorney General, Criminal Division, whenever his/her office intends to file a complaint, information, or indictment against an attorney:
   1. When the charges are based, in whole or in part, on evidence that the attorney served as counsel for an ongoing criminal enterprise or organization; or

   2. When—

      (i) the charges are based, in whole or in part, on actions or omissions by the attorney during the representation of a current or former client; and

      (ii) the attorney's current or former client is, or is likely to be, a witness against the attorney; and

      (iii) the client will, or is likely to, testify against the attorney pursuant to a nonprose-cution, cooperation, or similar agreement with the government.

2. Except in emergency situations, the United States Attorney or Departmental Component Head shall provide such notice sufficiently in advance of the filing of a complaint, information, or indictment to provide the Assistant Attorney General, Criminal Division, a reasonable time to consult with the prosecuting office/component. In addition, the United States Attorney or Departmental component head should consider providing notice during an investigation involving the circumstances described above in A.1 or A.2, if the existence of such investigation is about to be, or has been, made public.

3. The requirements set forth in this section shall not apply to indictments that are subject to pre-indictment review by a Department component under other provisions of the United States Attorneys' Manual, e.g., RICO, tax, etc., cases.

9-2.040 Dismissal of Complaints

9-2.041 Cancellation of Unexecuted Arrest Warrants

9-2.050 Dismissal of Indictments and Informations

9-2.060 Appeals, Mandamus, Stays, Rehearing, Certiorari

9-2.100 Limitations on United States Attorneys

9-2.101 American Bar Association Standards for Criminal Justice

9-2.110 Statutory Limitations -- Generally

9-2.111 Statutory Limitations -- Declinations

9-2.112 Statutory Limitations -- Prosecutions

9-2.120 Policy Limitations -- Generally

9-2.131 Matters Assumed by Criminal Division or Higher Authority

9-2.136 Notification, Consultation, and Approval Requirements for lnternational Terrorism Matters

1. The Need for a Consistent and Coordinated National Enforcement Strategy for International Terrorism Matters.
   Faced with the growing threat of international terrorism and in order to implement this nation's obligations under various international conventions designed to prevent and punish acts of terrorism, Congress has enacted significant legislation to expand the jurisdiction of the United States to investigate and prosecute terrorist activities occurring within and outside the territorial jurisdiction of the United States. Following the terrorist attacks of September 11, 2001, the Attorney General implemented various initiatives to ensure an aggressive, consistent, and coordinated national enforcement program to prevent, disrupt, and punish international terrorism. The Department and the Congress also emphasized the need for robust sharing of information related to terrorism between and among Department components and other Executive Branch agencies, including the need for relevant information collected at headquarters components to flow to the field as well as information flowing from the field to headquarters. In view of the expanded Federal criminal jurisdiction over and importance of international terrorism matters and the obvious need to ensure a well-coordinated Federal response to such matters, the following policy is established in regard to international terrorism, including terrorist acts planned or committed outside the territorial jurisdiction of the United States over which Federal criminal jurisdiction exists and those within the United States involving international terrorists and terrorist groups. The coordination is conducted by the National Security Division (NSD) and, in particular, by its Counterterrorism Section (CTS).

   What Constitutes an "International Terrorism" Investigation.

   The requirements in this section apply to all investigations involving an identified link to international terrorism. If the United States Attorney's Office (USAO) or the referring agency has opened the investigation as an international terrorism matter (such as an FBI 315 file), or if the matter is being investigated as an international terrorism matter by a Joint Terrorism Task Force, the matter will presumptively qualify as an international terrorism investigation. In addition, other investigations in which links to international terrorism are identified after the investigation is initiated will qualify at that point as international terrorism matters for purposes of this section, regardless of the statutory violation initially presented or ultimately charged and regardless of the referring agency. If there is any question about whether a matter involves international terrorism, all doubt should be resolved in favor of consultation with CTS.

   The notification, consultation, and information-sharing provisions of this section apply in all international terrorism matters. The approval requirements depend on whether the Federal statute to be utilized in certain court actions is listed in Category 1 below, in which case approval is presumptively required, or Category 2, in which case approval is presumptively not required.

   1. International Terrorism Statutes (Category 1)
      The Federal statutes listed in this subsection represent the intent of Congress to expand the jurisdiction of the United States to investigate and prosecute international terrorism or are utilized regularly in international terrorism matters. If a Category 1 statute is being used in a terrorism investigation that is not entirely domestic— i.e., a terrorism investigation that involves foreign nationals, foreign locations, or connections to foreign countries or groups— the matter shall be deemed an international terrorism matter. This includes use of a listed statute as the object of a conspiracy or as a predicate for a RICO or other offense.

      • Terrorist Acts Abroad Against United States Nationals (18 U.S.C. § 2332)

      • Terrorism Transcending National Boundaries (18 U.S.C. § 2332b)

      • Hostage Taking (18 U.S.C. § 1203)

      • Aircraft Piracy (49 U.S.C. § 46502)

      • Aircraft Sabotage (18 U.S.C. § 32)

      • Conspiracy Within the United States to Murder, Kidnap, or Maim Persons or to Damage Certain Property Overseas (18 U.S.C. § 956)

      • Providing Material Support to Terrorists (18 U.S.C. § 2339A)

      • Providing Material Support to Designated Terrorist Organizations (18 U.S.C. § 2339B)

      • Prohibition Against Financing of Terrorism (18 U.S.C. § 2339C)

      • Violations of IEEPA (50 U.S.C. § 1705(b)) involving E.O. 12947 (Terrorists Who Threaten to Disrupt the Middle East Peace Process); E.O. 13224 (Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism or Global Terrorism List); and E.O. 13129 (Blocking Property and Prohibiting Transactions With the Taliban)

      • Harboring Terrorists (18 U.S.C. § 2339)

      • Terrorist Attacks Against Mass Transportation Systems (18 U.S.C. § 1993)

      • Use of Biological, Nuclear, Chemical or Other Weapons of Mass Destruction (18 U.S.C. §§ 175, 175b, 229, 831, 2332a)

      • Sabotage of Nuclear Facilities or Fuel (42 U.S.C. § 2284)

      • Crimes Against Internationally Protected Persons (18 U.S.C. § § 112, 878, 1116, l201(a)(4))

      • Bombings of places of public use, Government facilities, public transportation systems and infrastructure facilities (18 U.S.C. § 2332f)

      • Production, Transfer, or Possession of Variola Virus (Smallpox) (18 U.S.C. § 175c)

      • Participation in Nuclear and WMD Threats to the United States (18 U.S.C. § 832)

      • Missile Systems designed to Destroy Aircraft (18 U.S.C. § 2332g)

      • Production, Transfer, or Possession of Radiological Dispersal Devices (18 U.S.C. § 2332h)

      • Receiving Military-Type Training from an FTO (18 U.S.C. § 2339D)

      • Narco-Terrorism (21 U.S.C. § 1010A)

      • Animal Enterprise Terrorism (18 U.S.C. § 43)

      Other International Terrorism Matters (Category 2)

      A variety of other Federal statutes may also be used to prevent, disrupt, and punish international terrorists. These include the statutes listed below as well as many other Federal offenses including, but not limited to, fraud offenses, immigration offenses, firearms charges, drug crimes, and false statement, perjury, and obstruction of justice offenses. While these statutes may be used in a variety of contexts, some not involving terrorism at all and others involving only domestic terrorism, if the investigation in which the statute is used involves an identified link to international terrorism, including but not limited to any link or reference to a designated Foreign Terrorist Organization (FTO), it is encompassed by the policy set forth in this section.

      • Arsons and Bombings (18 U.S.C. §§ 842(m), 842(n), 844(f), 844(i))

      • Unlicensed Money Remitter Charges (18 U.S.C. § 1960)

      • Protection of Computers (18 U.S.C. § 1030)

      • False Statements (18 U.S.C. § 1001)

      • Violence at International Airports (18 U.S.C. § 37)

      • Killings in the Course of Attack on a Federal Facility (18 U.S.C. § 930(c))

      • Crimes in the Special Aircraft Jurisdiction other than Aircraft Piracy (49 U.S.C. §§ 46503-46507)

      • Crimes Committed Within the Special Maritime and Territorial Jurisdiction of the United States (l8 U.S.C. §§ 7, 113, 114, 115, 1111, 1112, 1201, 2111)

      • Wrecking Trains (18 U.S.C. § 1992)

      • Destruction of Interstate Gas or Hazardous Liquid Pipeline Facilities (49 U.S.C. § 60123(b))

      • Destruction of Communication Lines (18 U.S.C. § 1362)

      • Destruction of National Defense Materials, Premises, or Utilities (18 U.S.C. §  2155)

      • Sea Piracy (18 U.S.C. § 1651)

      • Violence against Maritime Navigation and Maritime Fixed Platforms (18 U.S.C. §§ 2280, 2281)

      • International Traffic in Arms Regulations (22 U.S.C. § 2778, and the rules and regulations promulgated thereunder, 22 C.F.R. § 121-130)

      • Genocide (18 U.S.C. § 1091)

      • Torture (18 U.S.C. § 2340A)

      • War Crimes (18 U.S.C. § 2441)

      • False Information and Hoaxes (18 U.S.C. § 1038)

   Channels for Communications Between the USAO and the National Security Division.

   Communications regarding the notification, consultation, information-sharing, and approval requirements of this section should normally be made between the Anti-Terrorism Advisory Council (ATAC) Coordinator or other designated Assistant United States Attorneys (AUSAs) in the USAO and the Regional ATAC Coordinator or designated Trial Attorney in the Counterterrorism Section (CTS). If necessary, including if the usual contact is unavailable, communications may also be directed from the National Security Division to supervisory AUSAs or to the United States Attorney, and from the USAO to the CTS National ATAC Coordinator, a CTS supervisor, or the CTS Chief or the AAG or his/her staff. Communications need only be made through a single channel; multiple communications on the same matter are not required. If a substantive offense being discussed is within the area of responsibility of another section of the National Security Division (e.g., Arms Export Control Act-Counterespionage Section) or the Criminal Division (e.g., Torture—Domestic Security Section), CTS will be responsible for coordinating the matter with that section.

   The main CTS telephone number is (202) 514-0849. After business hours, all CTS attorneys and the CTS duty officer may be reached by calling the Justice Command Center at (202) 514- 5000.

   USAO Notification of CTS is Required Regarding Initiation of and Significant Developments in All International Terrorism Matters.

   Initiation. The USAO shall notify CTS when any international terrorism matter is opened. The notification should include the names and identifiers, if known, of subjects of the investigation and a general overview of the investigation, so that CTS may attempt to identify linkages to, and deconflict the investigation with, investigations that may be ongoing in other districts or within CTS and may raise any concerns about the proposed investigation. To allow this process, notification should be made in advance where practicable and otherwise as soon as possible, but the USAO should not delay in taking necessary investigative action, particularly where such action is covert. Notification may be made by email or telephone; or, as necessary to protect classified and sensitive information, by secure fax or telephone; and may utilize the standard Case Notification Form available from CTS if preferred. If after notification, CTS determines that there are related matters pending in other districts that could be affected by investigative action in the new matter, CTS will so inform the USAO and will advise the other districts of the new matter.

   Significant Developments. In all international terrorism matters, the USAO shall notify CTS of significant developments in the investigation and prosecution, including the filing of search warrants; the filing of material witness warrants; the application for electronic surveillance; the declination of the matter without filing of charges; the filing and dismissal of criminal or immigration charges; the entering of plea agreements; the initiation and results of trials; and the results of sentencings and appeals. (As discussed in subsection H below, in certain international terrorism matters, some of these court actions also require prior approval of the National Security Division.) CTS will be responsible for reporting to the Department's leadership on such developments, although the USAO should also send Urgent Reports on such matters as required by USAM § 3-18.200.

   USAO Consultation with CTS is Encouraged in All International Terrorism Investigations and is Required Before Issuing Grand Jury Subpoenas in Overlapping Investigations.

   Consultation between USAOs and CTS is encouraged in all international terrorism matters. Consultation at the inception of an investigation facilitates consideration of the full range of investigative tools now available and discussion of investigative strategy. Consultation on significant investigative and prosecution developments also facilitates coordination, as necessary and appropriate, with other Department components and with other law enforcement, intelligence, defense and other agencies; such coordination is often done in practice, and sometimes must be done pursuant to Attorney General guidelines or by request of the other components and agencies, at the headquarters level. Consultation promotes careful evaluation of intelligence, defense, foreign policy and other governmental interests that often affect investigative tactics and strategies, charging decisions, discovery (including such issues as defendants' access to detained enemy combatants), use of classified information, use of expert witnesses and cooperating witnesses and defendants from other jurisdictions, jury instructions, sentencing issues, and similar concerns.

   Grand Jury Subpoenas and Pen/Trap Orders. Where a USAO is aware that another USAO or CTS has a related international terrorism matter opened, the USAO shall not issue grand jury subpoenas or apply for a pen register or trap and trace order that may impact such related matters without first consulting with CTS and the other district.

   CTS is Required to Share Relevant Information With Affected USAOs.

   When CTS becomes aware, through contacts with USAOs, other National Security Division and Criminal Division Sections and Department components, including the FBI, other agencies, or otherwise, of information that may be relevant to an international terrorism matter pending in a USAO, including relevant investigative action that may be planned in another district and issues regarding FISA searches or electronic surveillance, CTS shall share that information directly with the USAO as soon as practicable and to the extent authorized by the originator of the information. Where relevant information is known to CTS but cannot be shared with a USAO due to originator requirements, CTS shall request that the originator authorize such sharing.

   CTS Intranet Website Will Be Accessible to USAOs.

   To the extent practical and permitted by classification, need-to-know, operational security, court sealing, and similar restrictions, CTS should also share available information about activities in terrorism matters generally with all USAOs. A large amount of such information, including the CTS Daily Reports, is available to USAOs through the CTS intranet website. United States Attorneys, ATACs, and other AUSAs with a need to know may obtain licenses allowing access to the CTS website by contacting EOUSA.

   Prior Express Approval of the Assistant Attorney General of the National Security Division or His Designee is Presumptively Required Regarding Certain Court Actions in Category 1 Matters, and is Required in Category 2 Matters Where Requested By the Assistant Attorney General.

   Prior express approval of the Assistant Attorney General of the National Security Division (AAG) or his designee is presumptively required for certain court actions involving the international terrorism-focused (Category 1) statutes. Prior approval is required in other (Category 2) international terrorism matters only upon AAG request. Prior approval is required for the following court actions:

   1. Filing an application for a search warrant.

   2. Filing an application for a material witness warrant.

   3. Filing a criminal complaint or information or seeking the return of an indictment.

   4. Filing a superseding complaint or information, or seeking the return of a superseding indictment.

   5. Dismissing a charge for which AAG approval was initially required, including as part of a plea agreement. (See also the discussion of other plea agreements later in this Section.)

   6. Other specific court filings as requested by the AAG.

   In other words, if the court document in an international terrorism matter utilizes a Category 1 statute listed in subsection B.1. above, the AAG or his designee must approve the action in advance unless the AAG advises the USAO that he does not seek to exercise approval authority in the particular matter or with regard to the particular court filing. For example, the AAG may determine after reviewing a routine search warrant in a Category 1 case that he does not need to review any similar search warrants in that particular case. This approval requirement applies whether the Category 1 statute is used as a substantive offense or as the object of a conspiracy or a predicate offense for a RICO or other violation. The approval requirement also applies to "hoax" and "threat" cases that utilize Weapons of Mass Destruction or other Category 1 statutes.

   In the many other international terrorism matters in which court documents do not utilize one of the Category 1 statutes—such as cases using one of the more general Category 2 statutes described in subsection B.2. above—then prior approval is required only if the AAG advises the USAO that he wishes to exercise approval authority for some or all of the court actions in the particular matter. Note that in cases not requiring AAG approval, the USAO should still notify CTS of these sorts of court actions as significant developments in the matter, as discussed in subsection D above.

   If the United States Attorney believes that AAG approval is not warranted in a case in which the AAG has requested to exercise approval authority for some or all of the court actions in the particular matter, the United States Attorney may appeal to the Deputy Attorney General for a determination of whether such approval is necessary.

   Indictments, Informations, and Complaints. Where prior approval is required, the USAO should make the application for approval through CTS. In such cases, submission to CTS of a prosecution memorandum and a copy of the proposed indictment, information, or complaint is normally required prior to seeking authorization for charges, although CTS may waive this requirement in a particular case. The final draft of the proposed charge must be provided to CTS before final AAG approval will be sought. Attorneys are encouraged to seek informal guidance from CTS throughout the investigation and well before a final indictment and prosecution memorandum are submitted for review. The submitting AUSA must allocate sufficient lead time to permit review, revision, discussion, and the scheduling of the grand jury. The information provided should indicate both the proposed date for the investigatory action and the proposed date by which the USAO needs a response. If CTS is unable to respond within the time frame suggested by the USAO, CTS must immediately notify the USAO to determine an acceptable time frame agreed to by both parties. A well-written, carefully organized prosecution memorandum is the greatest guarantee that a prosecution will be authorized quickly and efficiently.

   Significant Filings. In approval cases, once charges have been filed in court, a copy of the file-stamped charging document shall be provided to CTS. CTS shall also be notified and provided copies of any significant court rulings in the case. In addition, copies of motions, jury instructions and briefs filed by the USAO, as well as the defendant(s), should be forwarded to CTS for retention in a central reference file. The government's briefs and motions will provide assistance to other USAOs handling similar matters. Once a verdict has been obtained, the USAO shall forward to CTS the verdict on each count of the indictment and the sentence(s) received by each defendant.

   Plea Agreements. Before entering into a plea agreement in a case in which court documents utilize one of the Category 1 statutes (or cases using Category 2 statutes in which the AAG makes a request), the USAO shall notify and seek the concurrence of the AAG, with any disagreement to be resolved by the Deputy Attorney General.

   Exigent Circumstances.

   If exigent circumstances require a USAO to take immediate action in an international terrorism matter without complying with the consultation or prior approval requirements set forth above, the USAO must notify CTS of any action taken as soon as practicable thereafter and the exigent circumstances that precluded obtaining prior approval. The USAO shall provide copies of any court filings made. If the AAG determines that further review or action appears appropriate, the AAG and the USAO will confer on how best to proceed. Any disagreements will be resolved by the Deputy Attorney General.

   Attorney General Certification Under 18 U.S.C. § 2332.

   Pursuant to statute, the written certification of the Attorney General is required to allege a violation of 18 U.S.C. § 2332. This certification represents a finding that the offense was intended to coerce, intimidate or retaliate against a government or civilian population. Application for this certification should be made through CTS, allowing sufficient lead time for review and transmittal to the Attorney General.

9-2.137 Notification Requirements in Domestic Terrorism Matters

9-2.138 Notification, Consultation, and Approval Requirements for Weapons of Mass Destruction (WMD) Matters

1. Nationwide Enforcement Policy is Required
   Matters involving the Weapons of Mass Destruction (WMD) statutes (18 U.S.C. §§ 175, l75b, 175c, 229, 831, 832, 2332a, and 2332h), may involve international terrorism, in which case they are already covered by the policy set forth in USAM 9-2.136. Even if the matters do not involve international terrorism, however, the importance and sensitivity of these matters requires a consistent national approach as established in the following policy. The policy is coordinated by the National Security Division. The Counterterrorism Section (CTS) is the point of contact for these matters.

   During business hours, the main CTS number is (202) 514-0849. After business hours, CTS attorneys and supervisors may be reached by calling the Justice Command Center at (202) 514-5000.

   What Constitutes a WMD Matter

   The Department is seeing an increasing number of investigations involving the use of chemical, biological, radiological, and nuclear (CBRN) material and agents, as well as large scale explosive devices intended to cause catastrophic damage and weapons that seek to combine CBRN and ordinary explosives. The requirements in this section apply in all investigations in which the USAO contemplates charging an offense under the WMD statutes (18 U.S.C. §§ 175, l75b, 175c, 229, 831, 832, 2332a, and 2332h), regardless of the statutory violation initially presented or ultimately charged and regardless of the referring agency.

   Exception for "Routine" WMD-related Hoax and Threat Matters

   The USAO is not required to follow the approval requirements of this section if the case is a "routine" threat or hoax case. A case is not routine if (1) the USAO intends to charge an offense under the WMD statutes; (2) the matter affects other districts; or (3) the matter is expected to attract national public or media attention. Notification to CTS of routine hoax and threat matters is still encouraged.

   Notification and Consultation Requirements

   Initiation. When the USAO opens any WMD matter, the USAO shall promptly notify CTS. The notification should include the names and identifiers, if known, of the subjects of the investigation and a general overview of the investigation. Whenever feasible, notification should be made in advance of any action by the USAO, and otherwise as soon as possible, but the USAO should not delay in taking any necessary investigative action, particularly where such action is covert. Notification may be made by email or telephone (or by secured means where necessary), and may utilize the standard Case Notification Form available from CTS if preferred. If after notification, CTS determines that there are related matters pending in another district that could be affected by the new matter, CTS will so inform the USAO and will advise the other district of the new matter.

   Grand Jury Subpoenas and Pen/Trap Orders. Where a USAO is aware that another USAO or CTS has opened a related matter, the USAO shall not issue a grand jury subpoena or apply for a pen register or trap and trace order that may affect the related matter without first consulting with CTS and the other district.

   Significant Developments and Case Preparation. The USAO shall notify CTS of any significant development in the investigation and prosecution of the matter, including the filing of a search warrant; the filing of a material witness warrant; the application for electronic surveillance; the declination of the matter without filing of charges; the filing and dismissal of criminal or immigration charges; the entering of a plea agreement; the initiation and results of trials; and the results of sentencings and appeals. (As discussed in subsection E below, some of these same court actions also require prior approval of the Assistant Attorney General of the National Security Division.) The USAO is also encouraged to consult with CTS on issues such as investigative tactics and strategies, discovery, jury instructions, sentencing issues, the use of expert witnesses, and the use of cooperating witnesses and cooperating defendants from other jurisdictions.

   Information Sharing with the USAO. When CTS becomes aware of information from any source that may be relevant to a WMD matter pending in a USAO, including relevant investigative action that may be planned in another district, CTS shall share that information with the USAO as soon as practicable, to the extent authorized by the originator of the information. Where relevant information known to CTS cannot be shared with a USAO due to originator requirements, CTS shall request that the originator authorize such sharing.

   Approval Requirements

   Prior, express approval of the Assistant Attorney General (AAG) of the National Security Division (or his or her designee) is required for the following court actions involving a WMD matter:

   1. filing an application for a search warrant;

   2. filing an application for a material witness warrant;

   3. filing a criminal complaint or information or seeking the return of an indictment;

   4. filing a superseding complaint or information, or seeking the return of a superseding indictment;

   5. dismissing a charge for which AAG approval was initially required, including as part of a plea agreement; and

   6. other specific court filings as requested by the AAG.

   Where prior approval is required, the USAO should make the application for approval through CTS. Submission to CTS of a prosecution memorandum and a copy of the proposed application, indictment, information, or complaint is normally required prior to seeking AAG approval, although CTS may waive this requirement in a particular case. The final draft of any proposed charge must be provided to CTS before final AAG approval will be given. Attorneys are encouraged to seek informal guidance from CTS throughout the investigation and well before a final indictment and prosecution memorandum are submitted for review. The submitting AUSA must allocate sufficient lead time to permit review, revision, discussion, and the scheduling of the grand jury. The information provided should indicate both the proposed date for the contemplated action and the proposed date by which the USAO needs a response. If CTS is unable to respond within the time frame suggested by the USAO, CTS must immediately notify the USAO to determine an acceptable time frame agreed to by both parties. A well- written, carefully organized prosecution memorandum is the greatest guarantee that a prosecution will be authorized quickly and efficiently.

   In cases requiring approval, once a charge has been filed in court, a copy of a file-stamped charging document shall be provided to CTS. CTS shall also be notified and provided copies of any significant court rulings in the case. In addition, copies of motions, jury instructions and briefs filed by the USAO, as well as the defendant(s), should be forwarded to CTS for retention in a central reference file. Such a file of the government's briefs and motions will provide assistance to other USAOs handling similar matters. Once a verdict has been obtained, the USAO shall forward to CTS the verdict on each count of the indictment and the sentence(s) received by each defendant.

   AAG Concurrence Requirement for Plea Agreements

   The USAO must seek the prior concurrence of the AAG before entering into a plea agreement in a WMD matter. If the AAG does not concur to the entry of the plea agreement, the disagreement shall be resolved by the Deputy Attorney General.

   Exigent Circumstances

   If exigent circumstances require a USAO to take immediate action in a WMD matter without complying with the notification, consultation, concurrence, or prior approval requirements set forth above, the USAO must promptly notify CTS of any action taken and of the exigent circumstances that precluded obtaining prior approval. The USAO shall also provide CTS copies of any court filings made. If the AAG determines that further review or action appears appropriate, the AAG and the USAO will confer on how best to proceed. Any disagreements will be resolved by the Deputy Attorney General.

9-2.139 Notification, Consultation, and Approval Requirements for Torture, War Crimes, and Genocide Matters

1. National Coordination
   Matters involving torture (18 U.S.C. §§ 2340- 2340B), war crimes (18 U.S.C. § 2441), and genocide (18 U.S.C. §§ 1091-1093) raise issues of national and international concern. Successful prosecution of these matters requires both careful coordination within the Department of Justice and careful coordination between the Department and senior officials in the foreign affairs and military communities. The responsibility for this coordination is assigned to the Criminal Division and, in particular, its Domestic Security Section (DSS). If a matter involving torture, war crimes, or genocide also involves international terrorism, responsibility for coordination will be assigned to the Counterterrorism Section of the National Security Division as provided in this section and USAM 9-2.136.

   During business hours, the main DSS number is (202) 616-5731. After business hours, DSS attorneys and supervisors may be reached by calling the Justice Command Center at (202) 514-5000.

   Matters Involving Torture, War Crimes, or Genocide

   The requirements in this section apply in all investigations in which the USAO contemplates—

   1. charging torture (18 U.S.C. §§ 2340-2340B), a war crime (18 U.S.C. § 2441), or genocide (18 U.S.C. §§ 1091-1093); or

   2. charging any other offense (such as a violation of 18 U.S.C. §§ 1001, 1425, or 1546) where proof of the other offense (i.e., of the false statement or fraud) will require the government to either define torture, war crimes, or genocide, or to prove that torture, a war crime, or genocide was committed.

   Notification Requirements

   Initiation. When the USAO opens any torture, war crimes, or genocide matter, the USAO shall promptly notify the Domestic Security Section (DSS) of the Criminal Division. The notification should include the names and identifiers, if known, of the subjects of the investigation and a general overview of the investigation. Whenever feasible, notification should be made in advance of any action by the USAO, and otherwise as soon as possible, but the USAO should not delay in taking any necessary investigative action, particularly where such action is undercover. Notification may be made by email or telephone (or by secured means where necessary), and may utilize the standard Case Notification Form available from DSS if preferred. If after notification, DSS determines that there are related matters pending in another district that could be affected by the new matter, DSS will so inform the USAO and will advise the other district of the new matter.

   DSS shall immediately notify CTS of all notifications made by a USAO under this paragraph. If CTS determines that a matter involves international terrorism, CTS will assume coordination of the matter pursuant to USAM 9-2.136. When CTS assumes coordination of a torture, war crimes, or genocide matter involving international terrorism, the approval, notification, and consultation requirements of USAM 9-2.136 apply. For all other cases, the following requirements apply.

   Consultation Requirements

   Grand Jury Subpoenas and Pen/Trap Orders. Where a USAO is aware that another USAO or DSS has opened a related matter, the USAO shall not issue a grand jury subpoena or apply for a pen register or trap and trace order that may affect the related matter without first consulting with DSS and the other district.

   Significant Developments and Case Preparation. The USAO shall notify DSS of any significant development in the investigation and prosecution of the matter, including the filing of a search warrant; the filing of a material witness warrant; the application for electronic surveillance; the declination of the matter without filing of charges; the filing and dismissal of criminal or immigration charges; the entering of a plea agreement; the initiation and results of trials; and the results of sentencings and appeals. (As discussed in subsection E below, some of these same court actions also require prior approval of the Assistant Attorney General of the Criminal Division.) The USAO is also encouraged to consult with DSS on issues such as investigative tactics and strategies, discovery, jury instructions, sentencing issues, the use of expert witnesses, and the use of cooperating witnesses and cooperating defendants from other jurisdictions.

   Information Sharing with the USAO. When DSS becomes aware of information from any source that may be relevant to a torture, war crimes, or genocide matter pending in a USAO, including relevant investigative action that may be planned in another district, DSS shall share that information with the USAO as soon as practicable, to the extent authorized by the originator of the information. Where relevant information known to DSS cannot be shared with a USAO due to originator requirements, DSS shall request that the originator authorize such sharing.

   Approval Requirements

   Prior, express approval of the Assistant Attorney General (AAG) of the Criminal Division (or his or her designee) is required for the following court actions involving a torture, war crimes, or genocide matter:

   1. filing an application for a search warrant;

   2. filing an application for a material witness warrant;

   3. filing a criminal complaint or information or seeking the return of an indictment;

   4. filing a superseding complaint or information, or seeking the return of a superseding indictment;

   5. dismissing a charge for which AAG approval was initially required, including as part of a plea agreement; and

   6. other specific court filings as requested by the AAG.

   Where prior approval is required, the USAO should make the application for approval through DSS. Submission to DSS of a prosecution memorandum and a copy of the proposed application, indictment, information, or complaint is normally required prior to seeking AAG approval, although DSS may waive this requirement in a particular case. The final draft of any proposed charge must be provided to DSS before final AAG approval will be given. Attorneys are encouraged to seek informal guidance from DSS throughout the investigation and well before a final indictment and prosecution memorandum are submitted for review. The submitting AUSA must allocate sufficient lead time to permit review, revision, discussion, and the scheduling of the grand jury. The information provided should indicate both the proposed date for the contemplated action and the proposed date by which the USAO needs a response. If DSS is unable to respond within the time frame suggested by the USAO, DSS must immediately notify the USAO to determine an acceptable time frame agreed to by both parties. A well-written, carefully organized prosecution memorandum is the greatest guarantee that a prosecution will be authorized quickly and efficiently.

   In cases requiring approval, once a charge has been filed in court, a copy of a file-stamped charging document shall be provided to DSS. DSS shall also be notified and provided copies of any significant court rulings in the case. In addition, copies of motions, jury instructions and briefs filed by the USAO, as well as the defendant(s), should be forwarded to DSS for retention in a central reference file. Such a file of the government's briefs and motions will provide assistance to other USAOs handling similar matters. Once a verdict has been obtained, the USAO shall forward to DSS the verdict on each count of the indictment and the sentence(s) received by each defendant.

   AAG Concurrence Requirement for Plea Agreements

   The USAO must seek the prior concurrence of the AAG before entering into a plea agreement in a torture, war crimes, or genocide matter. If the AAG does not concur to the entry of the plea agreement, the disagreement shall be resolved by the Deputy Attorney General.

   Exigent Circumstances

   If exigent circumstances require a USAO to take immediate action in a torture, war crimes, or genocide matter without complying with the notification, consultation, concurrence, or prior approval requirements set forth above, the USAO must promptly notify DSS of any action taken and of the exigent circumstances that precluded obtaining prior approval. The USAO shall also provide DSS copies of any court filings made. If the AAG determines that further review or action appears appropriate, the AAG and the USAO will confer on how best to proceed. Any disagreements will be resolved by the Deputy Attorney General.

9-2.145 Dismissals

9-2.154 Legislative Proposals by United States Attorneys

9-2.155 Sensitive Matters

9-2.159 Refusal of Government Departments and Agencies to Produce Evidence

1. In no event should the United States Attorney accept the opinion or representation of the agency that such records or witnesses cannot be made available without determining all of the specific facts upon which the agency relies to support its refusal.

2. If the United States Attorney is not satisfied that the facts justify the refusal, he/she should so advise the agency and seek to procure the evidence requested of the agency.

3. If the United States Attorney concurs that there are sufficient and valid reasons to support the agency's refusal to produce the necessary evidence, he/she should advise the AAG in charge of the division having jurisdiction over the subject matter of the case of his/her conclusion. That AAG, after consultation with the Deputy Attorney General, will authorize the United States Attorney, if necessary and appropriate, to terminate the investigation, forego the litigation, or dismiss the case. A full statement of the facts supporting the conclusion of the United States Attorney should be set forth in the correspondence to the appropriate AAG.

9-2.170 Decision to Appeal and to File Petitions in Appellate Courts

1. Approval Requirements. 28 C.F.R. § 0.20(b) provides that the Solicitor General has the authority to "[d]etermine whether, and to what extent, appeals will be taken by the Government to all appellate courts (including petitions for rehearing en banc and petitions to such courts for the issuance of extraordinary writs)." The following actions must be approved:
   1. Any appeal of a decision adverse to the government, including an appeal of an order releasing a charged or convicted defendant or a request to seek a stay of a decision adverse to the government.

   2. A petition for rehearing that suggests rehearing en banc -- and any rare appeal in which the government wishes to suggest that it be heard initially en banc. See Fed. R. App. P. 35(c). Although a petition for panel rehearing does not require the approval of the Solicitor General, one should not be filed until the Solicitor General has been given the opportunity to decide whether the case merits en banc review.

   3. A petition for mandamus or other extraordinary relief.

   4. In a government appeal, a request that the case be assigned to a different district court judge on remand.

   5. A request for recusal of a court of appeals judge.

   6. A petition for certiorari. (NOTE: 28 C.F.R. § 0.20(a) provides that the Solicitor General shall supervise all Supreme Court cases, "including appeals, petitions for and in opposition to certiorari, briefs and arguments, and settlement thereof." Accordingly, in criminal cases, only the Solicitor General petitions for certiorari or responds to petitions for certiorari).

2. Reporting Requirements. United States Attorneys' Offices (USAOs) should report all adverse, appealable district court decisions to the Appellate Section (including adverse 28 U.S.C. § 2255 habeas rulings, coram nobis rulings, and forfeiture rulings).

   USAOs must report the following categories of adverse sentencing decisions to the Appellate Section of the Criminal Division or other appropriate division as soon as possible, but in no event later than 14 days of judgment. This requirement only applies to adverse decisions, i.e., decisions made over the objection of the Government. The categories of adverse decisions required to be reported are as follows:

   1. Departures that change the "Zone" in the Sentencing Table: An adverse decision must be reported if the following three criteria are met:
      1. the court departed downward on any ground;
      2. the departure reduces the sentencing range from Zone C or D to a lower zone; and
      3. no term of imprisonment was imposed.

   2. Departures based on criminal history: An adverse decision must be reported if the following three criteria are met:
      1. the court departed downward on the ground that the defendant's criminal history category over-represents the seriousness of the defendant's criminal history, see U.S.S.G. § 4A1.3;
      2. the Government asserted that no such departure was justified on the facts of the case at all, cf. 18 U.S.C. § 3742(e)(3)(B)(iii) (thus triggering the de novo appellate review provisions of the PROTECT Act); and
      3. the extent of the departure was two or more criminal history categories or the equivalent.

   3. Departures based on "discouraged" or "unmentioned" factors: An adverse decision must be reported if the following four criteria are met:
      1. the court departed downward based on a discouraged factor, see, e.g., U.S.S.G. Ch. 5, Pt. H, a factor not mentioned in the Guidelines, or a combination of factors where no single factor justifies departure;
      2. the basis for departure constitutes an "impermissible" ground as defined in 18 U.S.C. § 3742(j)(2) (and is therefore subject to de novo review under the PROTECT Act);
      3. the offense level prior to departure was 16 levels or more; and
      4. the extent of the departure was three or more offense levels.

   4. Departures in child victim and sexual abuse cases: An adverse decision must be reported if the following two criteria are met:
      1. the court departed downward on any ground; and
      2. the case is one in which the sentencing of the offense of conviction is governed by 18 U.S.C. § 3553(b)(2), as amended by the PROTECT Act (i.e., "an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117").

   5. Illegal adjustments for "acceptance of responsibility": An adverse decision must be reported if the following two criteria are met:
      1. the court granted a three-level downward adjustment for acceptance of responsibility; and
      2. the Government did not move for the third level of the adjustment. See U.S.S.G. § 3E1.1(b), as amended by the PROTECT Act.

   6. Departures on remand: An adverse decision must be reported if the following two criteria are met:
      1. the court imposed the sentence on remand from the court of appeals; and
      2. the sentence does not comply with the PROTECT Act's requirements for sentencing after remand. See 18 U.S.C. § 3742(g).

   7. Recurring illegal departures: An adverse decision must be reported if the following two criteria are met:
      1. the court improperly departed downward in a manner that is not otherwise required to be reported; and
      2. the basis for departure has become prevalent in the district or with a particular judge.

   8. Sentences below statutory minimum: Any decision in which the court imposed a sentence that is illegally below the statutory minimum must be reported.

   9. Any other case for which authority to appeal is sought: The USAO must report any other adverse sentencing decision that is not supported by the law and the facts and that the United States Attorney wishes to appeal.

   USAOs should report every published court of appeals' decision that is adverse to the government in any respect. They should report any unpublished court of appeals' decision that affirms a district court decision that the government appealed. They should report any unpublished court of appeals' decision that they believe merits rehearing en banc or certiorari.

   Before confessing error in a court of appeals, USAOs should consult with the Appellate Section. USAOs should also consult with the Appellate Section before taking a position that may be inconsistent with the government's position in another case.

   USAOs should report every adverse decision as soon as possible, especially adverse court of appeals' decisions, since the government generally has 14 days to approve, draft, and file a rehearing petition if no extension is obtained.

   Timing of Appeals and Rehearing Petitions. The government has 30 days from the date of judgment or 30 days from the filing of any defendant's notice of appeal to file a notice of appeal. See Federal Rule of Appellate Procedure 4. A timely filed motion for reconsideration (that is, one filed within 30 days after judgment) extends the time for filing a notice of appeal until 30 days after the denial of the motion. The time for filing a notice of appeal is otherwise not subject to extension and is jurisdictional. For a Notice of Appeal form, see the Criminal Resource Manual at 22.

   The government has 60 days to file a notice of appeal from an adverse § 2255 habeas or in rem forfeiture decision.

   A protective notice of appeal should not be filed without notifying the Appellate Section. If a protective notice of appeal is filed and a briefing schedule is issued before authorization to appeal is obtained, notify the Appellate Section of the briefing schedule as soon as possible. In cases involving Sentencing Guidelines appeals, notify the Appellate Section before filing any document other than a protective notice of appeal, so that approval of the Solicitor General may be obtained.

   Federal Rule of Appellate Procedure 40 requires a party to file a petition for rehearing within 14 days of the court of appeals' judgment. In those instances in which the Appellate Section has not been advised of an adverse court of appeals' decision in a timely fashion, USAOs should protect the time to petition for rehearing by filing a motion requesting an extension of 30 days to petition for rehearing. Even when the Appellate Section has been timely advised of an adverse court of appeals' decision, the Appellate Section may ask the USAO to seek a 30-day extension of time within which to petition for rehearing in order to allow the Solicitor General time to review the case. Most circuits will grant the government a 30-day extension of time to file a petition for rehearing. For a form Petition for Rehearing Extension, see the Criminal Resource Manual at 23.

   Motions for extensions of time to file a rehearing petition must be received by the court on or before the date the rehearing petition is due. Similarly, rehearing petitions must be received on or before the date they are due. Mailing by the due date is insufficient to constitute timely filing.

   The government has 90 days from the date of the court of appeals' decision or an order denying a timely petition for rehearing to file a petition for a writ of certiorari.

   Obtaining Authorization to Appeal and Petition for Rehearing. To obtain authorization to appeal, the United States Attorney should send the following materials to the Appellate Section:

   • A memorandum setting forth reasons for the appeal;
   • The order or opinion of the district court;
   • Related motions or memoranda and relevant transcripts if available; and
   • In sentencing appeals, the presentence report and the judgment and commitment order.

   To obtain authorization to file a petition for rehearing with suggestion for rehearing en banc, the United States Attorney should send the following materials to the Appellate Section:

   • The opinion of the court of appeals;
   • The briefs filed by both parties in the court of appeals; and
   • A memorandum setting forth reasons justifying the filing of a petition for rehearing with suggestion for rehearing en banc.

   Materials should be sent to the following addresses:

   By mail:	By overnight courier:
   Appellate Section Criminal Division P.O. Box 899 Ben Franklin Station Washington, D.C. 20044	Appellate Section Criminal Division Room 2266, Main Justice Bldg. 10th St. & Pennsylvania Ave., N.W. Washington, D.C. 20530

   Standards for Authorization. United States Attorneys' Offices are encouraged to consult with the Appellate Section if they have any question as to whether a case is appropriate for appeal or rehearing.

   The Authorization Process. After receiving the United States Attorney's request for authorization to seek further review, an Appellate Section attorney writes a memorandum containing a recommendation to the Solicitor General. If the Appellate Section agrees with the United States Attorney, then the United States Attorney's and the Appellate Section's recommendations are forwarded to the Solicitor General.

   If the Appellate Section disagrees with the United States Attorney, a Deputy Assistant Attorney General in the Criminal Division reviews the Appellate Section's and United States Attorney's recommendations before they are sent to the Solicitor General.

   Whenever further review is sought, an Assistant to the Solicitor General reviews the United States Attorney's and Appellate Section's recommendations and writes a memorandum containing the Assistant's recommendation to the Solicitor General. The Deputy Solicitor General then reviews all of the recommendations and writes another memorandum to the Solicitor General (except for sentencing guidelines cases, which go directly to the Solicitor General after review by an assistant). The Solicitor General personally determines whether to authorize every appeal and petition for rehearing with suggestion for rehearing en banc.

9-2.173 Arrest of Foreign Nationals

9-2.180 Strike Forces

9-2.181 Organized Crime Strike Force Unit Duties

9-2.182 Organized Crime Strike Force Unit Strategic Plans

9-2.183 Organized Crime Strike Force Unit Personnel

9-2.000 Release of Information -- Press Information and Privacy

9-2.400 Prior Approvals Chart