Statutory Limitations—Prosecutions

No prosecution of an offense described in 18 U.S.C. § 245 (Federally Protected Activities) may be undertaken by the United States except upon the certification of the Attorney General or Deputy Attorney General that in his or her judgment a prosecution by the United States is in the public interest and necessary to secure substantial justice. See

JM 9-85.200

. The function of certification may not be delegated.

See

18 U.S.C. § 245(a)(1). The anti-riot provision, 18 U.S.C. § 245(b)(3), and violations of 18 U.S.C. § 245(b)(1), insofar as it relates to matters not involving discrimination or intimidation on grounds of race, color, religion, or national origin, are assigned to the Criminal Division and requests for certification relating to them should be sent to the Criminal Division. Formerly, prosecutions under 42 U.S.C. §§ 2272-2276 (Atomic Energy Act) might be brought only after receiving the express direction of the Attorney General.

See

42 U.S.C. § 2271(c).

Violations of 18 U.S.C. § 1073 (Flight to Avoid Prosecution or Giving Testimony) may be prosecuted only upon formal approval in writing by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or an Assistant Attorney General. Accordingly, under no circumstances should an indictment under the Act be sought, nor an information be filed, nor should criminal proceedings under Rule 40, Federal Rules of Criminal Procedure be instituted without the written approval of the Assistant Attorney General, Criminal Division. Requests for written approval to prosecute should be forwarded to the Policy and Statutory Enforcement Unit of the Office of Enforcement Operations.

See

JM 9-69.460

. This approval requirement also applies to cases involving custody disputes.

See

JM 9-69.421

.

le 40, Federal Rules of Criminal Procedure be instituted without the written approval of the Assistant Attorney General, Criminal Division. Requests for written approval to prosecute should be forwarded to the Policy and Statutory Enforcement Unit of the Office of Enforcement Operations.

See

JM 9-69.460

. This approval requirement also applies to cases involving custody disputes.

See

JM 9-69.421

.

Prosecution for violations of 18 U.S.C. § 659 (Theft from Interstate Shipments) and of 18 U.S.C. § 2102 (Riots) are barred if there has been a judgment of conviction or acquittal on the merits under the law of any State for the same act or acts.

See

18 U.S.C. §§ 659, 2101(c). That a Federal prosecution for violation of 18 U.S.C. § 659 was initiated prior to the commencement of the State prosecution did not prevent dismissal of the Federal indictment when a State trial on a larceny charge resulted in acquittal before a defendant was retried on the Federal indictment following a remand from the Court of Appeals.

See

United States v. Evans

, (D.N.J. November 19, 1968) (DJ 15-48-368). The Solicitor General decided no appeal should be taken not because of 18 U.S.C. § 659 but because of the policy against dual prosecution. See

JM 9-2.031

(Petite Policy).

Violations of 18 U.S.C. § 1119 (Foreign Murder of U.S. Nationals) may be prosecuted only upon formal approval in writing by the Attorney General, the Deputy Attorney General, or an Assistant Attorney General, after consultations with the Secretary of State.  The Attorney General has delegated responsibility for approval to the Assistant Attorney General for the Criminal Division.  Accordingly, under no circumstances should an indictment under this section be sought, nor an information be filed without the written approval of the Assistant Attorney General, Criminal Division. Requests for written approval to prosecute should be forwarded to the Human Rights and Special Prosecutions Section.

See

JM 9-141.000

.

[updated June 2018] [cited in

JM 9-2.100

]