Title 9 Criminal Division Chapters 101 To
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UNITED STATES ATTORNEYS' MANUAL DETAILED TABLE OF CONTENTS FOR CHAPTER 101 9-101. 000 THE COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970-II .................................................................... 1 9-101.100 PROCEDURES RELATING TO EXPUNGEMENT OF CRIMINAL REC- ORDS PURSUANT TO 21 U.S.C. § 844(b) ................................ 1 9-101.200 REFERRAL OF CONTROLLED SUBSTANCE CASES TO STATE OR LOCAL PROSECUTORS ........................................................ 1 9-101. 300 CONTROLLED SUBSTANCE DESTRUCTION PROCEDURES ..................... 2 9-101.400 DOMESTIC OPERATION GUIDELINES FOR THE DRUG ENFORCE- MENT ADMINISTRATION: COMMENTS ON SELECTED PROVISIONS ....................................1988 4 MANUAL ATTORNEYS S. U. July 1, 1992 (1) 1988 CHAP. 101 UNITED STATES ATTORNEYS' MANUAL 9-101.200 9-101.000 THE COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970-II 9-101.100 PROCEDURES RELATING TO EXPUNGEMENT OF CRIMINAL RECORDS PURSUANT TO 21 U.S.C. § 844(b) Section 844 (b) of Title 21 permits the court to sentence certain first- time drug offenders to a probationary term without a formal adjudication of guil t. Upon the successful completion of the probationary term, the court must discharge all proceedings against the offender and dismiss the ac- tion. If the discharged offender was under 21 years of age at the time of the offense, the offender may ask the court for an order expunging all official records of the case, with the exception of a nonpublic record designed to prevent an offender's disposition under 21 U.S.C. § 844(b)1988 more than once. Please refer to DOJ Order 2710, and Forms OBD-160 and DOJ-329. 9-101. 200 REFERRAL OF CONTROLLED SUBSTANCE CASES TO STATE OR LOCAL PROSE- CUTORS The following factors should be considered in deciding whether con- trolled substance cases should be charged in federal court or referred to state or local prosecutors for action: (1) sufficiency of the evidence: (2) degree of federal involvement: (3) effectivenessMANUAL of state and local prosecutors: (4) willingness of state or local authorities to prosecute cases investigated primarily by federal agents: (5) amount of controlled substances involved: (6) violator's background: (7) possibility that prosecution will lead to disclosure of violations committed by other per- sons: and (8) the district court's backlog of cases. A. Declination of federal prosecution on evidentiary grounds is under- standable and justified. However, absent unusual circumstances, declina- tion should not be based solely on any of the other factors. The amount involved is only one of several factors which should be considered before deciding whether to prosecute in federal court. In considering the amount involved attention should be paid to the purity of the controlled substance and the method of packaging. B. When a U.S. Attorney declines to prosecute a controlled substance case and thereafterATTORNEYS a state or local prosecutor also declines prosecution, the Drug Enforcement Administration should be afforded an opportunity to request federalS. prosecutive consideration and such cases should be accept- ed unless it is not in the public interest to do so. Federal prosecution might not be warranted, for example, where the violator qualifies for processingU. under a deferred prosecution plan. C. In appraising the effectiveness of nonfederal authorities, consid- eration should be given to the professional competence of local and state prosecutors and the length of time it takes to try a case in local and state July 1, 1992 1 . S. ATTORNEYS L 9-101.200 TITLE 9-CRIMINAL DIVISION CHAP. 101 courts. Consideration should also be given to the penalties provided by local or state law, the sentencing practices of local and state judges and the applicable parole eligibility standards of nonfederal jurisdictions. D. In assessing the background of a violator, consideration should be given to the offender's age, degree of culpability, and prior criminal record. The prosecutor should also consider whether significant mitigat- ing circumstances exist, whether the offender has cooperated with the government, and whether the offender is dependent on drugs. For example, if an offender is young, has no previous record, is a narcotic addict, and was arrested for possession for the offender's personal use, it may be appropriate to defer prosecution conditioned upon the offender's enroll- ment in a drug treatment program. 1988 E. Serious consideration should always be given to the question of whether an offender would, if federally charged, cooperate and furnish evidence of narcotic violations committed by the offender's confederates or by others. F. U. S. Attorneys are urged to cooperate fully with stat.e and local prosecutors and investigators and to encourage them in actively combating drug trafficking. There will be instances where state or local prosecution of controlled substance offenders would be warranted even when there has been significant federal involvement in MANUALthe case. However, since the federal government has significant responsibilities in the area of drug law enforcement, care should be taken in deciding which is the most appro- priate judicial forum in which to prosecute a controlled sUbstance case. G. U.S. Attorneys should confer with special agents in charge of DEA field offices in their districts regarding standards and procedures to be utilized in determining whether controlled substance cases should be pros- ecuted federally or referred to state or local prosecutors. H. Periodically, U.S. Attorneys should meet or confer with state and local prosecutors in connection with referral of federal cases for prose- cution. 9-101.300 CONTROLLEDATTORNEYS SUBSTANCE DESTRUCTION PROCEDURES Each United States Attorney's Office should designate a drug evidence destruction coordinator. This coordinator should preferably be an attor- ney familiarS. with the prosecution of narcotics cases and related eviden- tiary issues. The coordinator will work closely with DEA and FBI counter- parts to ensure that the evidentiary value of the drug evidence is pre- U.served for later use in court. In addition, the coordinator will be responsible for monitoring legal problems, providing advice, and ensuring that the FBI and DEA 60-day notices are forwarded to the appropriate attorney. July 1, 1992 2 MANUA CHAP. 101 UNITED STATES ATTORNEYS' MANUAL 9-101. 300 When the United States Attorneys' Offices receive the 60-day Notice, it should be forwarded to the attorney assigned to the case (and to the Drug Evidence Destruction Coordinator) to determine the appropriate response. The prosecutor may want to contact the DEA/FBI agent in charge of the case to get the agent's assurance that sufficient photographic documentation of the evidence is or will be available prior to destruction. Furthermore, if the evidence is marijuana, the prosecutor is encouraged to consult with the case agent to make sure that the evidence was accurately weighed and the weighing method was adequately documented for use in court proceedings. Once the appropriate reviews and consultations are complete, the prosecu- tor may take one of the following actions: 1. Send a written response to the case agent before the 60-day time period elapses permitting sampling and destruction to proceed.1988 [NOTE: The Department encourages prosecutors to do this as soon as possible for cases where there is no basis for an exception request. This will permit DEA/FBI to begin the sampling and destruction process in less than 60 days, providing laboratory analyses are completed.]; or. 2. Permit the 60-day time period to elapse, at which point the DEA/FBI case agent will authorize sampling and destruction with no further notice to the United States Attorneys' Offices once laboratory anal- yses are completed; or. MANUAL 3. Determine that an exception request is warranted, and forward such a written request, signed personally by the U.S. Attorney, to the DEA/FBI SAC. It must be received before the expiration date of the 60-day time period. [NOTE: The use of exception requests should be severely limited. In any case in which the U.S. Attorney requests an exception from the SAC, the burden will be on the prosecutor to show the particular circumstances or factors that would adversely affect the government's case. Since the sample retained under the standard procedure will be large--twice the amount required for maximum man- datory minimum penal ties under the Anti-Drug Abuse Act for all substances other than marijuana--prosecutors are strongly discour- aged from filing an exception request on the grounds that the full seizure is needed for jury appeal or other purely strategical pur- poses. ATTORNEYS If the SAC denies the exception request, the U.S. Attorney will be so notified in writing. The U.S. Attorney may then choose to abide by the SAC's decisionS. or may appeal the decision to the Assistant Attorney Gener- al, Criminal Division, as discussed below. In the event that the DEA/FBI SAC denies the U.S. Attorney's request to preserve the evidence, the exhibitU. will be retained for 30 days from the day of the denial notice before sampling and destruction are authorized. If an appeal is made, the evidence will be maintained intact until the appeal is decided, provided July 1, 1992 3 U. S. ATTORNEYS MANUAL 1988 9-101. 300 TITLE 9-CRIMINAL DIVISION CHAP. 101 that the DEA/FBI SAC is notified of the appeal wi thin 30 days of the denial notice. It shall be the U.S. Attorney's responsibility to provide the DEA/FBI SAC with a copy of the appeal letter. United States Attorney's Office Action If the DEA/FBI SAC denies the exception request, the U.S. Attorney may either let the decision stand or may choose to appeal the decision to the Assistant Attorney General, Criminal Division. Should the U.S. Attorney choose to appeal, a letter documenting the reasons for the appeal should be sent to: Chief, Narcotic and Dangerous Drug Section Criminal Division U.S.