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  • The person’s culpability in connection with the offense;
  • The person’s history with respect to criminal activity;
  • The person’s willingness to cooperate in the investigation or prosecution of others;
  • The person’s personal circumstances;
  • The interests of any victims; and
  • The probable sentence or other consequences if the person is convicted.[1]

3. Most serious, readily provable offense

During our investigation, the Justice Manual provided that once the decision to prosecute has been made, the attorney for the government should charge and pursue the most serious, readily provable offenses. By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.[2]

4. Unpopularity

Where the law and the facts create a sound, prosecutable case, the likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the defendant or his/her cause is not a factor prohibiting prosecution.[3] This provision from the Justice Manual is quoted more fully in section I.

5. Interests of uncharged parties

In all public filings and proceedings, federal prosecutors should remain sensitive to the privacy and reputation interests of uncharged third parties. In the context of public plea and sentencing proceedings, this means that, in the absence of some significant justification, it is not appropriate to identify (either by name or unnecessarily specific description), or cause a defendant to identify, a third-party wrongdoer unless that party has been officially charged with the misconduct at issue.[4]

As a series of cases makes clear, there is ordinarily “no legitimate governmental interest served” by the government’s public allegation of wrongdoing by an uncharged party, and this is true “[r]egardless of what criminal charges may … b[e] contemplated by the Assistant United States Attorney against the [third-party] for the future.”[5] Courts have applied this reasoning to preclude the public identification of unindicted third-party wrongdoers in plea hearings, sentencing memoranda, and other government pleadings.[6]

  1. ↑ Id. § 9-27.230.
  2. ↑ Id. § 9-27.300. This charging policy has since been revised. See Att’y Gen., General Department Policies Regarding Charging, Pleas, and Sentencing Memorandum (Dec. 16, 2022).
  3. ↑ Justice Manual § 9-27.220.
  4. ↑ Id. § 9-27.760.
  5. ↑ In re Smith, 656 F.2d 1101, 1106–07 (5th Cir. 1981).
  6. ↑ Justice Manual § 9-27.760. See Finn v. Schiller, 72 F.3d 1182, 1189 (4th Cir. 1996) (“Overzealous prosecutors must not be allowed to file sweeping statements of fact alleging violations of various laws by unindicted individuals. A primary purpose of Rule 6 is to protect

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