II-A-7 . PRE-TRIAL POLICIES AND PROCEDURES DISCLOSURE ISSUES Effective Date: August 22, 2005 Last Revised: October 14, 2010 Rule 16, Federal Rules of Criminal Procedure, and Jenks Act Material ?Open Discovery? Policy Compliance with discovery obligations is important for a number of reasons. First and foremost, such compliance will facilitate a fair and just result in every case, which is the Department's singular goal in pursuing a criminal prosecution. That is why this Of?ce generally follows an ?open discovery?? policy with respect to most straight? forward or non?complex cases. Pursuant to this policy, the defense is given access to the materials in the government?s entire case- ?le, excluding grand jury, tax, and work product information, or information which may result in harm to a victim or Witness, as more fully discussed below. A form discovery com hence letter to be used in such cases can be found in the Publichriminal/Criminal Forms directory. As a general rule, ?open discovery? should include, but not be limited to the disclosure of all materials likely to be disclosed to the Probation Department for the preparation of a presentence investigation report. See Section of this Manual. There are cases, however, where a more restrictive discovery process is appropriate. Each Criminal Division AUSA is expected to examine the facts and circumstances of each case carefully to determine whether an ?open discovery? process is appropriate for that case. Situations Which may call for a more restrictive disclosure policy include, but are not limited to: (1) Circumstances where a complete ?open discovery? would endanger a witness or victim or otherwise compromise the integrity of the case; Circumstances where an ongoing investigation could be jeopardized. AUSAS wanting to adopt a more restrictive discovery process in a particular case should notify the defense of that fact and use the discovery checklist letter which can be found in the Public/Criminal/Criminal Forms directory. Cases involving notional securitv. including terrorism, esoionoge, counterihtellieencerahd export enforcement. c?ehoreseht tot he end difficult criminal discoverr issues. The Department of Justice has developed Special g. uidance for those cases, which contained in Acting Deputy Alton: Gen ere! Gary G. Grindler ?5 September 29. 2010. memorandum. ?Policv chit Procedures Regarding the Government?s Duty to Search for Discoverable Information in the Possession of the Intelligence Communitv or Militarv in Criminal Investigations. Prosecutors shohltl consult th at memories:ng and their supervisors regarding discoverv obligetioh's relating to classified or other sensitiVe national security informetion. As a general rule. in those cases where the (1) prosecutor. alter conferring with other members of the-prosecution team. has a specific reason to believe that one or more elements of the Intelligence Communitv C) possess discoverable must be coordinated through NSD. Although discovern issues related to classified information are most likely to arise in national securitv cases. thev mav also arise in a_varietv of other criminal cases. including narcotics cases. trafficking cases. monev laundering cases. and organized crime cases. In particular. it is important to determine whether the prosecutor. or another member of the mosecution team. has specific reason to believe that one or more elements of the 1C possess discoverable material in the mllowine kinds of criminal cases; Q1 Those targeting corrupt or fraudulent practices bv middle or upper of?cials of a foreign government: (hi I hose involving alleged violations of the Arms Export Control Act or the International Emergencv Economic Powers Act: Q1 those involving trading with the enemv. international terrorism. or significant international narcotics trafficking. especiallv if th ev involve foreign government or militarv personnel: [511 Other signi?cant cases involving international suspects and targets: and (51 Cases in which one or more targets are. or have previouslv been. associated with an intelligence agencv. - For these cases. or for any other case in which the prosecutors. case aents. or supervisors maltin actual decisions on an investigation or case have a specific remon to believe that an element of the 1C possesses discoverable material. the prosecutor should consult with N51) regarding whether to make through NSD a request that the pertinent element conduct a prudentialmarch. If neither thevprosecutor. nor anv other member of the prosecution team. has a reason to believe that an element of the 1C possesses discoverable material. then a prudential search eenerallv not necessarv. - The decision regarding whether an ?open discovery? or more restrictive disclosure process is left to the sound discretion of experienced Criminal Division AUSAs. AUSAs who have less than two years experience should consult with their supervisor or mentor AUSA. . In January of 2010', the Department issued guidance for prosecutors regarding criminal discovery, which is set forth in signi?cant part below. That guidance should be referred to and utilized as the of?ce policy for criminal discovery. If an AUSA has a unique situation that he or she believes requires a deviation from that guidance, the AUSA should consult with and obtain the approval of a supervisor to deviate from the Department?s guidance. ILA-7 (2) SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery The discovery obligations of federal prosecutors are generally established by Federal Rules of Criminal Procedure 16 and 26.2, 18 ?3500 (the encks Act), Brady v. Maryland, 373 US. 83 (1963), and Giglio v. United States, 405 US. 150 (1972). In addition, the United States Attorney's Manual describes the Department's policy for disclosure of exculpatory and impeachment information. See USAM ?9?5.001. In order to meet discovery-obligations in a given case, Federal prosecutors must be familiar with these authorities and with the judicial interpretations and local rules that discuss or address the application of these authorities to particular facts. In addition, it is important for prosecutors to consider thoroughly how to meet their discovery obligations in each case. Toward that end, the Department has adopted the guidance for prosecutors regarding criminal discovery set forth below. The guidance is intended to establish a methodical approach to consideration of discovery obligations that prosecutors should follow in every case to avoid lapses that can result in consequences adverse to the Department's pursuit of ustice. The guidance is subject to legal precedent, court orders, and local rules. It provides prospective guidance only and is not intended to have the force of law or to create or confer any rights, privileges, or bene?ts. See United States v. Caceres, 440 US. 741 (1979). By following the steps described below and being familiar with laws and policies regarding discovery obligations, prosecutors are more likely tomeet all legal requirements, to make considered decisions about disclosures in a particular case, and to achieve a just result in every case. Prosecutors are reminded to consult with the designated criminal discovery coordinator in their office when they have questions about the scope of their discovery Obligations. Rules of Professional Conduct in most jurisdictions also impose ethical obligations on prosecutors regarding discovery in criminal cases. Prosecutors are also reminded to contact the Professional Responsibility Advisory Of?ce when they have questions about those or any other ethical responsibilities. Step I: Gathering and Reviewing Discoverable Information3 A. Where to look-The Prosecution Team Department pelicy states: It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement of?cers and other government officials participating in the investigation and prosecution of the criminal case against the defendant. 3For the purposes of this memorandum, ?discovery? or ?discoverable information? includes information required to be disclosed by Fed.R.Crim.P. 16 and 26.2, the jencks Act, Brady, and Giglio, and additional information disclosable pursuant to USAM ?9-5001. ILA-7 (3) USAM ?9-5.001. This search duty also extends to information prosecut0rs are required to disclose under Federal Rules of Criminal Procedure 16 and 26.2 and the Jencks Act. In most cases, "the prosecution team? will include the agents and law enforcement of?cers within the relevant district working on the case. In multi-district investigations, investigations that include both Assistant United States Attorneys and prosecutors from a Department litigating component or other United States Attorney's Of?ce (U SAO), and parallel criminal and civil proceedings, this de?nition will necessarily be adjusted to ?t the circumstances. In addition, in complex cases that involve parallel proceedings with regulatory agencies (SEC, FDIC, EPA, etc.), or other non?criminal investigative or intelligence agencies, the prosecutor should consider Whether the relationship with the other agency is close enough to make it part of th prosecution team for discovery purposes. I I Some factors to be considered in determining whether to review potentially discoverable information from another federal agency include: - Whether the prosecutor and the agency conducted a joint investigation or shared resources related to investigating the case; - Whether the agency played an active role in the prosecution, including conducting arrests or searches, interviewing witnesses, develoPing prosecutorial strategy, participating in targeting discussions, or otherwise acting as part of the prosecution team; I - Whether the prosecutor knows of and has access to discoverable information held by the agency; Whether the prosecutor has obtained other information and/ or evidence from the agency; - The degree to which information gathered by the prosecutor has been shared with the agency; - Whether a member of an agency has been made a Special Assistant United States Attorney; - The degree to which decisions have been made jointly regarding civil, criminal, or administrative charges; and - . - The degree to which the interest's of the parties in parallel proceedings diverge such that information gathered by one party is not relevant to the other party, Many cases arise out of investigations conducted by multi-agency task forces or otherwise involving state law enforcement agencies. In such cases, prosecutors should consider (1) whether state or local agents are working on behalf of the prosecutor or are under the prosecutor's control; (2) the extent to which state and federal governments are part of a team, are participating in a joint investigation, or are sharing resources; and (3) whether the prosecutor has ready access to the evidence. Courts will generally evaluate the role of a state. or local law enforcement agency on a case-by-case basis. Therefore, prosecutors should make sure they understand the law in their circuit and their of?ce's practice regarding discovery in cases in which a state or local agency participated in the investigation or on a task force that conducted the investigation. Prosecutors are encouraged to err on the side ofincl-usiveness when identifying the members of the prosecution team for discovery purposes. Carefully considered efforts to locate discoverable - II-A-7 (4) information are more likely to avoid future litigation over Brady and Giglz'o issues and avoid surprises at trial. Although the considerations set forth above generally apply in'the context of national security investigations and prosecutions, Special complexities arise in that centext. Accordingly, the Department expects to issue additional guidance for such cases. Prosecutors should begin considering potential discovery obligations early in an investigation that has national security implications and should also carefully evaluate their discovery obligations prior to ?ling charges. This evaluation should consider circuit and district precedent and include: consultation with national security experts in their own of?ces and in the National Security Division. B. What to Review To ensure that all. discovery is disclosed on a timely basis, generally all potentially discoverable material within the custody or control of the prosecution team should be reviewed.4 The review process should cover the following areas: 1 . The Investigative Agency? Files: With reSpect to Department of Justice law enforcement agencies, with limited exceptions,5 the prosecutor should be granted access to the substantive case ?le and any other ?le or document the prosecutor has reason to believe may contain discoverable information related to the matter being prosecuted.6 Therefore, the prosecutor can personally review the ?le or documents or may choose to request production of potentially discoverable materials from the case agents. With respect to outside agencies, the prosecutor should request access to ?les and/or production of all potentially discoverable material. The investigative agency's entire investigative ?le, including documents such as FBI Electronic Communications (ECs), inserts, emails, etc. should be reviewed-for discoverable information. If such information is contained in a document that the agency deems to be an "internal" document such as an email, an insert, an administrative documentnecessary to produce the internal document, but it will be necessary to produce all of the discoverable information contained in it. Prosecutors should also discuss with the . investigative agency whether ?les from other investigations or non?investigative ?les such as con?dential. source ?les might contain discoverable information. Those additional ?les or relevant portions thereof shoul-dalso be reviewed as necessary. 2. Con?dential lnfonnant (CD/Witness (CWVHurnan Source (cum/Source (CS) Files: 4How to conduct the review is discussed below. 5Exceptions to a prosecutor?s access to Department law enforcement agencies? ?les are documented in agenCy policy, and may include, for example, access to a non-testifying source?s ?les. 6Nothing in this guidance alters the Department?s Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses contained in USAM ?9-5.100. (5) The credibility of cooperating witnesses or informants will always be at issue if they testify during a trial. Therefore, prosecutors are entitled to access to the agency ?le for each testifying CI, CW, CHS, or CS. Those ?les should be reviewed for discoverable information and copies made of relevant portions for discovery purposes. The entire informant/source ?le, not just the portion relating to the current case, including all proffer, immunity and other agreements, validation assessments, payment information, and other potential witness information should be included within this review. If a prosecutor believes that the circumstances of the case warrant review of a non?testifying source's ?le, the prosecutor should follow the agency's procedures for requesting the review of such a ?le. Prosecutors should take steps to protect the non-discoverable, sensitive information found- within a CI, CW, CHS, or CS ?le. Further, prosecutors should consider whether discovery obligations arising from the review of CI, CW, CHS, and CS ?les may be fully discharged while better protecting government or witness interests such as security or privacy via a summary letter to defense counsel rather than producing the record in its entirety. Prosecutors must always be mindful of security issues that may arise with respect to disclosures from con?dential source ?les. Prior to disclosure, prosecutors should consult with the investigative agency to evaluate any such risks and to develop a strategy for addressing those risks or minimizing them as much as possible, consistent with discovery obligations. 3. Evidence and Information Gathered During the Investigation: Generally, all evidence and information gathered during the investigation should be reviewed, including anything Obtained during searches or via subpoenas, etc. As discussed more fully below in Step 2, in cases involving a large volume of potentially discoverable information, prosecutors may discharge their disclosure obligations by choosing to make the voluminous information available to the defense. 4. Docnrnents or Evidence Gathered bv Civil Attornevs and/or Regulatorv Agency in Parallel Civil Investigations: If a prosecutor has determined that a regulatory agency such as the SEC is a member of the prosecution team for purposes of de?ning discovery obligations, that agency's ?les should be reviewed. Of course, if a regulatory agency is not part of the prosecution team but is conducting an administrative investigation or proceeding involving the same subject matter as a criminal investigation, prosecutors may very well want to ensure that those ?les are reviewed not Only to locate discoverable information but to locate inculpatory information that may advance the criminal case. Where there is an ongoing parallel civil proceeding in which Department civil attorneys are participating, such as a qui ram case, the civil case ?les should also be reviewed. 5 . Substantive Case-Related Communications: "Substantive" case?related communications may contain discoverable information. Those communications that contain discoverable information should be maintained in the case ?le or otherwise preserved in a manner that associates them with the case or investigation. "Substantive" case-related communications are most likely to occur (1) among prosecutors and/or agents, (2) between prosecutors and/0r agents and witnesses and/or II-A-7 (6) victims, and (3) between victim-witness coordinators and witnesses and/or victims. Such communications may be memorialized in emails, memoranda, or notes. "Substantive" communications include factual reports about investigative activity, factual discussions of the relative merits of evidence, factual information obtained during interviews or interactions with witnesses/victims, and factual issues relating to credibility. Communications . involving case impressions or investigative or prosecutive strategies Without more would not ordinarily be considered discoverable, but substantive case-related communications should be reviewed carefully to determine whether all or part of a communication (or the information contained therein?) should be disclosed. I Prosecutors should also remember that with few exceptions (see, e. g, Fed.R.Crim.P. the format of the information does 'not determine whether itis discoverable. For example, material exculpatory information that the prosecutor receives during a conversation with an agent or a witness is no less discoverable than if that same information were contained in an email. When the discoverable information contained in an email or other communication is fully memorialized elsewhere, such as in a report of interview or other document(s), then the disclosure of the report of interview or other document(s) will ordinarily satisfy the disclosure obligation. 6. Potential Giglio Information Relating to Law Enforcement Witnesses: Prosecutors should have candid conversations with the federal agents with whom they work regarding any potential Giglio issues, and they should follow the procedure established in USAM ?9?5.100 whenever necessary before calling the law enforcement employee as a witness. Prosecutors should be familiar with circuit and district court precedent and local practice regarding obtaining Giglio information from state and local law enforcement of?cers. 7. Potential Giglio Information Relating to Non?Law Enforcement Witnesses and Fed.R.Evid. 806 Declarants: All potential Giglio information known. by or in the possession of the prosecution team relating to non?law enforcement witnesses should be gathered and reviewed. That 1 information includes, but is not limited to: - Prior inconsistent statements (possibly including inconsistent attorney proffers, see United States Triumph Capital Group, 544 F.3d 149 (2d Cir. 2008)) - Statements or reports re?ecting witness statement variations (see below) Bene?ts provided to witnesses including: - Dropped or reduced charges - Immunity I - Expectations of downward departures or motions for reduction of sentence Assistance in a state or local criminal proceeding Considerations regarding forfeiture of assets Stays of deportation or other immigration status considerations S?Visas - Monetary benefits Non-prosecution agreements ILA-7 (7) Letters to other law enforcement of?cials g. stale prosecutors, parole boards) setting forth the extent of a witness's assistance or making substantive recommendations on the witness's behalf - I Relocation assistance Consideration or bene?ts to culpable or at risk third-parties - Other known conditions that could affect the Witness's bias such as: Animosity toward defendant Animosity toward a group of which the defendant is a member or with which the defendant is af?liated Relationship with victim Known but unc'harged'criminal conduct (that may provide an incentive'to curry favor- with a prosecutor) - Prior acts under Fed.R.Evid. 608 Prior convictions under Fed.R.Evid. 609 - Known substance abuse or mental health issues or other issues that could affect the witness's ability to perceive and recall events I 8. Information Obtained in Witness Interviews: Although not required by law, generally speaking, witness interviews7 should be memorialized by the agents. Agent and prosecutor notes and original recordings should be preserved, and prosecutors should confirm with agents that substantive interviews should be memorialized. When a prosecutor participates in an interview with an investigative agent, the prosecutor and agent should discuss note-taking responsibilities and memorialization before the interview begins (unless the prosecutor and the agent have established an understanding through prior course of dealing). Whenever possible, prosecutors should not conduct an interview without an agent present to avoid the risk of making themselves a witness to a statement'and being disquali?ed from handling the case if the statement becomes an iSsue. If exigent circumstances make it impossible to schre the presence of an agent during an interview, prosecutors should try to have another office employee present. Interview memoranda of witnesses expected to testify, and of individuals who provided relevant information but are not-expected to testify, should be reviewed. will vary during the course of an interview or investigation; For example, they may initially deny involvement in criminal activity, and the information they provide may broaden or change considerably over the course of time, especially if there are a series of debrie?ngs that a. Witness Statement Variations the Dutv to Disclose: Some witnesses? statements 7"Interview" as used herein refers to a formal question and answer session with a potential Witness conducted for the purpose of obtaining information pertinent to a matter or case. It does not include conversations with a potential witness for the purpose of scheduling or attending to other ministerial matters. Potential witnesses may provide substantive information outside of a formal interview, however. Substantive, case-related communications are addressed aboVe. 8In those instances in which an interview was audio or video recorded, further memorialization will generally not be necessary. II-A-7 (8) occur over several days or weeks. .Material variances in a witness's statements should be memorialized, even if they are within the same interview, and they should'be provided to the defense as Giglio information. b. Trial Preparation Meetings Witnesses: Trial preparation meetings with witnesses generally need not be memorialized. However, prOsecutors should be particularly attuned to new or? inconsistent information disclosed by the witness during a pre-trial witness preparation session. New information that is exculpatory or impeachment information should be disclosed consistent with the provisions of USAM ?9~5.001 even if the information is- ?rst disclosed in a witness preparation session. Similarly, if the new information represents a variance from the witness's prior statements, prosecutors should consider whether memorialization and disclosure is necessary consistent with the provisions of subparagraph above. c. Agent Notes: Agent notes should be reviewed if there is aireason to believe that the notes are materially" different from the memorandum, if a written memorandum was not prepared, if the precise words used by the Witness are signi?cant, or if the witness disputes the agent's account of the interview. Prosecutors should pay particular attention-to agent notes generated during an interview of the defendant or an individual whose statement may be attributed to a corporate defendant. Such notes may contain information that must be disclosed pursuant to Fed.R.Crim.P. or may themselves be discoverable under Fed.R.Crim.P. See, United Slates v. Clark, 385 F.3d 609, 619?20 (6th Cir. 2004) and United Slates v. Vallee, 380 F.Supp.2d 11, 12?14 (D. Mass. 2005). Step 2: Conducting the Review Having gathered the information described above, proschtors must ensure that the material is reviewed to identify discoverable information. It would be preferable if prosecutors could review the information themselves in every case, but such review is not always feasible or necessary. The prosecutor is ultimately responsible for compliance with discovery obligations. Accordingly, the prosecutor should develop a process for review of pertinent information to ensure that discoverable information is identi?ed. Because the responsibility for compliance with discovery obligations rests with the prosecutor, the prosecutor's decision about how to conduct this review is controlling. This process may involve agents, paralegals, agency counsel, and computerized searches. Although prosecutors may delegate the process and set forth criteria for identifying potentially discoverable information, prosecutors should not delegate the disclosure determination itself. In cases involving voluminous evidence obtain-ed from third parties, prosecutors should consider providing defense access to the voluminous documents to avoid the possibility that a well-intentioned review process nOnetheless fails to identify material discoverable evidence. Such broad disclosure may not be feasible in national security cases involving classi?ed information. Step 3: Making the Disclosures The Department's disclosure obligations are generally set forth in Fed.R.Crim.P. 16 and 26.2, 18 U.S.C. 500 (the Jencks Act), Brady, and Giglz'o (collectively referred to herein as "discovery II-A-7 (9) obligations?). Prosecutors must familiarize themselves with each of the provisions and controlling casc law that interprets these provisions. In addition, prosecutors should be aware that Section 9- 5.001 details the Department's policy regarding the disclOsure of exculpatory and impeachment information and provides for broader disclosures than required by Brady and Giglio. Prosecutors are also encouraged to provide discovery broader and more comprehensive than th discovery obligations. If a prosecutor chooses this course, the defense should be advised that the prosecutor is electing to produce discovery beyond what is required under the circumstances of the case but is not committing to any discovery obligation beyond the discovery obligations set forth above. A. Considerations Reardin the Sco and Timin of the Disclosuresf Providing broad and early discovery often promotes the truth-seeking mission of the Department and fosters a speedy resolution of many cases. It also provides a margin of error in case the prosecutor's good faith determination of the scope of appropriate discovery is in error. Prosecutors are encouraged to provide broad and early discovery consistent with any countervailing considerations. But when considering providing discovery beyond that required by the discovery obligations or providing discovery sooner than required, prosecutors should always consider any appropriate countervailing concerns in the particular case, including, but not limited to: protecting victims and witnesses from harassment or intimidation; protecting the privacy interests of witnesses; protecting privileged information; protecting the integrity of ongoing investigations; protecting the trial from efforts at obstruction: protecting national security interests; investigative agency concerns; enhancing the likelihood of receiving reciprocal discovery by defendants; any applicable legal or evidentiary privileges; and other strategic considerations that enhance the likelihood of achieving a just result in a particular case. In most jurisdictions, reports of interview (ROIs) of testifying witnesses are not considered Jencks material unless the report re?ects the statement of th witness substantially verbatim or the witness has adOpted it. The Working Group determined that practices differ among the USAOS and the components regarding disclosure of R015 of testifying witnesses. Prosecutors should be familiar with and comply with the practice of their of?ces. Prosecutors should never describe the discovery being provided as "open Even if the prosecutor intends to provide expansive discovery, it is always possible that something will be inadvertently Omitted from production and the prosecutor will then have unintentionally misrepresented the scepe of materials provided. Furthermore, because the concept of the is imprecise, such a representation exposes the prosecutor to broader disclosure requirements than intended or to sanction for failure to disclose documents, e. g. agent notes or internal memOs, that the court may deem to have been part of the "file." When the disclosure obligations are not clear or when the considerations above con?ict with the discovery obligations, prosecutors may seek a protective order from the court addressing the scope, timing, and form of disclosures. B. Timing: Exculpatory information, regardless of whether the information is memorialized, must be disclosed to the defendant reasonably after discovery. Impeachment information, which depends on the prosecutor's decision on who .is or may be called as a (10) government witness, will typically be disclosed at a reasonable time before trial to allow the trial to proceed ef?ciently. See USAM ?9?5.001. Section 9?500] also notes, however, that witness security, national security, or other issues may require that disclosures of impeachment information be made at a time and in a manner consistentwith the policy embodied in the Jencks Act. Prosecutors should be attentive to controlling law in their circuit and district governing disclosure obligations at various stages of litigation, such as pre-trial hearings, guilty pleas, and sentencing. Prosecutors should consult the local discovery rules for the diStrict in which a case has been indicted. Many districts have broad, automatic discovery rules that require Rule 1 6 materials to be produced without a request by the defendant and within a speci?ed time frame, unless a court order has been entered delaying discovery, as is common in complex cases. Prosecutors must comply with these local rules, applicable case law, and any ?nal court order regarding discovery. In the absence of guidance from such local rules or court orders, prosecutors should consider making Rule 16 materials available as soon as is reasonably practical but must make disclosure no later than a reasonable time before trial. In deciding when and in what format to provide discovery, prosecutors should always consider security concerns and the other factors set forth in subparagraph (A) above. Prosecutors should also ensure that they disclose Fed.R.Crim.P. materials in a manner that triggers the reciprocal discovery obligations in Fed.R.Crim.P. Discovery obligations are continuing, and prosecutors should always be alert to developments occurring up to and through trial of the case that may impact their discovery obligations and require disclosure of information that was previously not disclosed. C. Form of Disclosure: There may be instances when it is not advisable to turn over discoverable information in its original form, such as when the disclosure would create security concerns or when such information is contained in attorney notes, internal agency documents, con?dential source documents, Suspicious Activity Reports, etc. If discoverable information is not provided in its original form and is instead provided in a letter to defense counsel, including particular language, where pertinent, prosecutors should take great care to ensure that the full scope of pertinent information is provided to the defendant. Step 4: Making a Record One of the most important steps in the discovery'process is keeping good records regarding disclosures. Prosecutors should make a record of when and how information is disclosed or otherwise made available. While discovery matters are often the subject of litigation in criminal cases, keeping a record of the disclosures con?nes the litigation to substantive matters and avoids time-consuming disputes about what was disclosed. These records can also be critical when responding to petitions for post?conviction relief, which are often ?led long after the trial of the case. Keeping accurate records of the evidence disclosed is no less important than the other steps discussed above, and poor records can negate all of the work that went into taking the ?rst three (11) I BRADY DISCLOSURES Criminal Division AUSAS should strive to identify and disclose as early as possible any Brady matters'that arise in their cases. An AUSA who has a question regarding a Brady issue should consult with his/her direct supervisor and the Giglio coordinator prior to any determination that a disclosure will not be made or will be delayed after being discovered by the AUSA. GIGLIO PROCEDURES A. Preface On December 9, 1996, the Attorney General approved a Department of Justice Policy Regarding the DisClosure to Prosecutors of Potential Impeachment Information Concrning Law Enforcement Agency Witnesses. The policy applies to all Department of Justice Investigative Agencies including the Federal Bureau of Investigation, Drug Enforcement Administration; Immigration and Naturalization SerVice, and the United States Marshals Service. The Department of Treasury has also agreed that the policy will apply to its investigative agencies including the Bureau of Alcohol, Tobacco and Firearms (subsequently transferred to DOJ as part of the-creation 'of the Department of Homeland Security), Internal Revenue Service, and the United States Secret Service (subsequently transferred to the Department of Homeland Security). The purpose of the policy is to ensure that prosecutors meet their obligations under United States v. Giglio, 405 US. 150 . (1972), while protecting the legitimate privacy rights of Government employees. The Attorney General directed that each prosecuting of?ce develop a plan to implement this policy. B. Scope of Plan This plan pertains to requests for potential impeachment information concerning Department of Justice and Department of the Treasury law enforcement agency personnel who are either witnesses or af?ants (hereinafter referred to as ?covered law enforcement agency witnesses or af?ants?). It does not cover such information concerning witnesses or af?ants from other law enforcement agencies or departments. C. Point of Contact Tom Leggans, the current Supervisor of the Benton Branch Of?ce is designated as the Southern District of Illinois? Giglio Coordinator. The Giglio Coordinator shall coordinate all requests to the Covered, law enforcement agencies to search for potential impeachment information. concerning identi?ed covered law enforcement agents who are potential witnesses or af?ants in a Speci?c case. The Giglio Coordinator shall also ILA-7 (12) provide information and advice to AUSAS and agenCy of?cials regarding relevant case law and practice regarding disclosure of impeachment information. D. Initial Contact With Covered Law Enforcement Agent Witnesses or Af?ants Each AUSA should determine directly from each potential covered law enforcement agent witness or af?ant whether there is any potential impeachment information. The law enforcement agencies covered by the Department of Justice Policy have informed their agents that they are obligated to provide prosecutors. this information'as early as possible in the investigation. E. District Coordination of Requests to Covered Law EnfOrcement Agencies Should it become necessary to request potential impeachment information from the covered law enforcement agency, because 0f court directive or because, in the judgement of the AUSA such request should be made, all such requests should be made through the Giglio Coordinator. The AUSA making the request shall prepare a brief memorandum which shall: (1) describe the nature of the investigation or case, including the names of the defendants 0r targets involved; (2) identify the name of the covered law enforcement agent witness or af?ant; (3) indicate the role of the covered law enforcement agent witness or af?ant in the investigation; and, (4) indicate the bases for the request. Such requests should made as early as possible in order to allow the agency suf?cient time to process the request. I F. Submission of Request to Agency Point of Contact The Giglio Coordinator, after receiving the request and reviewingit shall, if appropriate, submit it to the covered law enforcement agency?s point of contact . The covered agency shall be given an opportunity to express its views on whether certain information should be disclosed to the court or defense counsel. G. Documents Documents disclosed pursuant to this plan shall be kept by the case prosecutor in a secure location in a sealed envelope in the criminal ?le. Documents and records disclosed pursuant to this policy shall only be retained as long as necessary. At the conclusion of the case, including any appeal or post-sentencing motions, the prosecutor shall expeditiously return documents concerning allegatiOns disclosed pursuant to this policy, to the Giglio Coordinator, who will send the documents to the Agency Of?cial. However, the prosecutor may keep in the relevant criminal case ?le, materials Such as motions, responses, legal memoranda, court orders, and internal of?ce memoranda and correspondence. When documents are disclosed to either the court or defense counsel pursuant to this policy, the Giglio Coordinator will provide to the Agency Of?cial the potential impeachment information disclosed, along with any judicial rulings and related pleadings, for retention in the agency?s system of records. - ILA-7 (l 3) H. In Camera Review When appropriate, the AUSA assigned to the case shall, after consultation with the Giglio Coordinator and the covered agency, seek ex parte, in camera review and decision by the court to determine whether the potential impeachment material must be disclosed to defense connsel. Protective Orders The AUSA assigned to the case or investigation shall, with the assistance of the Giglio Coordinator, when appropriate in a case where disclosure is made, seek a protective order from the court to limit the use and dissemination of potential impeachment information by defense counsel and others. - J. Unsubstantiated or Incredible Allegations In regard to unsubstantiated allegations, allegation that are not credible, or allegations that have resulted in exoneration, care shall be taken to protect the con?dentiality of such information and the privacy and-reputation of agency employees. The Requesting Of?cial shall insure that materials provided with such allegations are expeditiously returned to the agency at the conclusion - of the case or investigation. K. Use of Impeaching Information Before uses or relies upon any potential impeaching information, the AUSA will notify the Giglio Coordinator, so he can contact the relevant agency of?cial to determine the status of the potential impeaching information, and upon receiving such additional information, update the criminal case ?le and AUSA assigned the case. No system of records will be maintained that can be accessed by the identity of the employee having potential impeachment information, including information disclosed to the defense, that was provided by an agency. L. Notification to Agency In any case where potential impeaching information has been provided by an agency, the Giglio Coordinator will notify the relevant agency when that case or investigation ends in a judgment or declination. - - M. Change of Employee Status When noti?ed by an agency that an employee with potential impeachment information involved in a case where the Giglio issue was resolved has retired, has been transferred to another judicial district, or has been reassigned to a position in which the employee will be neither an af?ant nor a witness, the Giglio Coordinator shall cause to be removed any records or documents containing impeaching information in the case ?le. (14) Disclosure, Destruction, and Return of Tax Information Section 6103 of the Internal Revenue Code governs disclosure of tax infermation. Disclosure by the government may be made only as speci?cally provided in Section 6103. Attached to this memorandum is an overview of Section 6103 which sets out in detail the operative provisions of the disclosure rules and the speci?c limitations involving disclosure. The overview should be read carefully and direct reference should be made to the statute before any disclosure is made. Note that Section 6103 applies only to information initially gathered by the Internal Revenue Service. Section 6103 does not apply if the tax information was obtained by a federal prosecutor from a source other than the Internal Revenue Service, such as returns obtained from tax preparers pursuant to grand jury subpoena. Such disclosures are then governed by Rule 6(e) of the Federal Rules of Criminal Procedure. In that regard, our of?ce has designed grand jury log forms that have been distributed along with the document entitled ?Control and Security of Grand Jury Material.? The form has a box which is'to be ?lled in and marked when ex parte materials are received'from the IRS. There is also a box that should be ?lled out when tax materials are returned to the Service at the completion of the case. I Please remember that all ex parte applications must be signed by the United States Attorney before submission for a court order. Conclusion The policy does not and cannot. answer every discovery question because those obligations are often fact speci?c. When in doubt, consult with your supervisor or the Discovery Coordinator and take advantage of the other resources available to you, including the Professional ReSponsibility Advisory Of?ce (PRAO), and online resources available on the Department's intranet website. By evaluating discovery obligations pursuant to a methodical and thoughtful approach and taking advantage of available resources, prosecutors are more likely to meet their discOvery obligations in every case and in so doing achieve a just and ?nal result in every criminal prosecution. (15)