Howard Cox understood exactly how to work the system. A Department of Defense (DoD) investigator he worked with did a great job developing a procurement fraud case involving defective parachute cord but the Assistant United States Attorney (AUSA) declined. He thought a civil suit or even an administrative contract remedy was more appropriate. Howard, then counsel to DoD criminal investigators, knew how to get a better result.
Despite the fact that lives were at risk, poor sales techniques meant the prosecutor repeatedly declined the case. We finally chose a different “sales staff” and found an AUSA who was a former paratrooper. We made the sale.
This article provides ideas and examples showing how investigators can successfully pitch difficult cases—ones that look unattractive on the surface. It emphasizes more advanced techniques than the similarly-themed introductory article The Art of the Referral (Bruce Sackman, Kelly Sisario and Jerry Lawson). I approach the topic from my perspective as a former federal prosecutor and counsel to federal criminal investigators, but most of the ideas apply just as well to state and local law enforcement agencies.
When All You Need Is A Declination
Every experienced investigator has been in a position where they felt obligated to present a case they know the prosecutor should decline. Agencies can inadvertently encourage this if they use the number of presentations as a measure of investigator productivity.
In some cases agencies that don’t want to proceed with a case see benefits to presenting the case anyway, to reduce the chance a decision not to present the case could be second guessed. For example, after the 9/11 terrorist attacks law enforcement agencies were under pressure to pursue all suspected terrorism cases aggressively. Many of the cases were not appropriate for prosecution but agencies presented them anyway.
This article assumes that you want the prosecutor to accept a case. If you only need or want a declination you shouldn’t need help in obtaining one.
Understanding the Market
No two of the 94 federal judicial districts have the same policies on accepting cases for prosecution, but all have one thing in common: The number of cases that could be prosecuted exceed available resources. For example, the Transactional Records Access Clearinghouse (TRAC) reports that in January 2020 the FBI referred 2,194 cases for prosecution. Only 899 were accepted.
Prosecutors can be, in fact must be, highly selective about which cases to accept. The result is a buyer’s market. The burden of showing why a case should be prosecuted usually falls on the investigator.
The Department of Justice website lists the Department’s Principles for Federal Prosecution and United States Attorney Offices (USAOs) guidelines establish additional priorities, often linked to dollar thresholds. Priorities can shift over time to reflect public concerns, whether street crimes/drugs or terrorism. Immigration cases have been a high priority recently. Health care is frequently a white-collar crime priority, while procurement fraud and public corruption referrals sometimes compete with crimes like telemarketing fraud and financial institution fraud.
Many criminal investigators see their job as merely laying out the facts, with the prosecutor reaching a decision like a judge deciding a case. This conceptual model is fine in routine cases. However in some cases it may be better to think of a presentation as a sales pitch, or a more complicated negotiation. Investigators often have more power to influence the result than they realize, especially those who are thoughtful, well prepared and persistent.
Longtime prosecutor Howard Cox, who also served as Assistant Inspector General with the CIA and an adjunct professor at George Washington Law School, understands the system:
Good cases do not sell themselves. Federal agents in each jurisdiction compete for limited prosecutor time. Know your product, know your client, and make the sale.
Developing A Product You Can Sell
Talk to the prosecutor early. Statutes or U.S. Department of Justice policy sometimes make this mandatory. For example, Section 4(d) of the Inspector General Act requires that:
In carrying out the duties and responsibilities established under this Act, each Inspector General shall report expeditiously to the Attorney General whenever the Inspector General has reasonable grounds to believe there has been a violation of Federal criminal law.”
This requirement is fleshed out by the Attorney General Guidelines for IGs with Law Enforcement Authority: “In criminal investigations, a federal prosecutor must be consulted at an early stage to ensure that the allegations, if proven, would be prosecuted. Such consultation will also ensure coordination of investigative methods.”
Early coordination is a good idea even if not required. It will make the prosecutor feel invested in the matter and help them make decisions on key issues like covert activity and searches of office, home or computers. Prosecutors particularly like to be contacted before target interviews. Early coordination has the additional value of helping you avoid spending time on things the prosecutor does not care about.
The Federal Law Enforcement Training Center (FLETC) notes early presentation facilitates development of the investigative plan, including:
- Parallel proceedings (civil, administrative, asset forfeiture)
- Coordination of investigative resources
- Represented person contacts
- Use of covert operations, including informants
- Use of agency or OIG audit function
- Document control and case organization protocol
- Use of appropriate warnings
The way in which an investigation is conducted sometimes make the resulting file more attractive or less attractive to a prosecutor. For example, when possible, build your cases using administrative subpoenas, rather than grand jury subpoenas. Administrative subpoenas have some advantages over grand jury subpoenas:
Administrative Subpoenas Grand Jury Subpoenas
|Usable in criminal, civil and administrative proceedings.
|Normally usable only in criminal case.
|Need only signature from designated agency official.
|Must go before grand jury.
|Authority: Various statutes, including IG Act: 5 U.S.C. App. 3, Section 6 (a)(4)
|Authority: F.R.C.P Rule 6
Boost Your Chances With A Solid Report of Investigation
Some investigators believe it’s their job to gather the evidence and it’s the prosecutor’s job to analyze and organize it. The “Crime in a Box” approach of dumping a disorganized file on the prosecutor and letting him or her sort it out is usually a bad idea. It is a guarantee of disappointment if the case lacks surface appeal.
A thorough, well-written report makes a case more appealing, so:
- Include an overview at the beginning. Busy people have little enthusiasm for plowing through a voluminous report, so provide the prosecutor with a short, easy-to-digest summary of the case.
- Provide any background on the government program involved that the prosecutor will need to understand the case. How much does it cost taxpayers and why is it important to the beneficiaries and/or society as a whole? Be sure to define any acronyms.
- Be sure to include criminal history and civil background information like Dun & Bradstreet checks. You don’t want to learn that a target has a criminal history after getting a declination.
- Highlight any material lies the subject told. Many prosecutors consider a demonstrable exculpatory lie to be almost as good as a full confession by the subject.
- Consider including a chronology establishing a timeline of the criminal conduct. This is often more useful than the common diary-like listing of how you conducted the investigation.
- Consider the use of summary charts or proof charts, especially in complex cases.
Complex cases can be a tough sell. It’s difficult to keep the evidence and law straight. This is a real problem when dealing with unusual statutes outside the prosecutor’s everyday experience.
Summary charts can be useful in some cases. A good chart can demonstrate in a few seconds something it might take hours to explain. People are more likely to understand if audiovisual aids are used.
Proof Charts are a specialized type of summary. They can serve as a sort of road map for the prosecutor, particularly important when dealing with obscure statutes.
Here’s a simplified sample proof chart for a violation of the federal bribery statute, 18 U.S.C. 201(b): “Whoever … directly or indirectly, corruptly gives, offers or promises anything of value to any public official … to influence any official act [shall be guilty of bribery].”
|Bribery (18 U.S.C. 201(b))
|Directly or indirectly gives, offers to give or promises anything of value
|At Joe’s Eats on June 21, Suspect (John Smith) conditionally promised to pay Tom Jones $5000.
|Statement of Tom Jones
|To any public official
|Jones is a clerk at OPM.
|Statements of Jones & his supervisor, Bill Johnson.
|Tabs A & B
|To influence any official act
|Smith told Jones he would be paid on receipt of Thomas’s personnel file.
|Statement of Jones
A chart like this can help sell a case involving a complex statute—possibly one unique to your agency—that may not be familiar to the AUSA involved.
Not sure of all the elements of a crime? Your in-house counsel may be able to help.
One final note on preparation: Some of these suggestions will be overkill in many, maybe most cases. However, in cases that are important to you or your agency it will be worth investing the time. Thorough preparation provides multiple benefits, including demonstrating your competence and dedication. Showing the prosecutor you are a team player can have long range personal and professional benefits.
Presenting the Case
No one is a perfectly objective machine. The prosecutor’s personality and background matter. For example, some investigators believe that younger prosecutors, more interested in developing a reputation that will facilitate a move into a more lucrative job with a private law firm, are more likely to accept cases.
Match your approach to the prosecutor’s preferences. Some believe that if the case is worth prosecuting, someone should come to explain it and answer questions. Therefore, always consider an in-person meeting in an important case. In a phone call briefly summarize the case, including why you believe the case is important and offer to meet with the prosecutor.
Other prosecutors prefer reviewing paper files to meetings. You can help yourself with such prosecutors by including a concise cover letter that highlights the most important points you want to convey.
If you are dealing with a prosecutor who is a visual learner and likes plenty of photos in the file, keep your camera handy.
One investigator had the habit of bringing a box of doughnuts whenever he visited a prosecutor’s office. He felt this helped develop rapport. If it works it’s good, but it might not be the best approach if you are dealing with a bunch of Peloton-riding fitness fanatics.
A presentation meeting is like an audition. The prosecutor is evaluating not just the case, but you. Ask yourself:
- Do you have a professional appearance?
- Are you well organized? Do you know the case cold? No prosecutor will want to work with someone who is not on top of the facts.
- Are you familiar with your agency’s programs?
- Do you have a strong work ethic and a good reputation?
- Are there possible Giglio issues? If so, can they be managed?
- Can you explain the case concisely and convincingly? If you cannot convince the prosecutor, how can you expect to convince a judge or jury?
Plan your strategy. In a high profile case, consider whether someone else should accompany you to the prosecutor’s office:
- Other investigators?
- An auditor who worked the case?
- Your lawyer?
- Senior agency officials?
It is a mistake to just take people along for the ride, but in some cases the right mix of attendees may help send the message: “This case matters.”
Never overstate the evidence. If your summary says that the subject “confessed” or “admitted” something, your credibility will take a hit when the prosecutor reviews the subject’s statements and finds a less than solid confession. Many prosecutors consider telling them not to worry about a problem because the target will plead guilty anyway to be a red flag.
If the case has weaknesses, be up front about them. For example, in a contract fraud case, did the agency appear to tolerate the conduct now alleged to be fraudulent? In a time and attendance case, did the target’s supervisor sign the allegedly fraudulent overtime requests? Explaining why the problems are not deal-killers is better than ignoring them.
Capable prosecutors will not base their decisions on political considerations but they don’t want to be blindsided. Include any information you have concerning political interest or any connections the subject might have with those in positions of power.
Don’t Give Up Easily
Most U.S. Attorneys publish guidelines containing criteria for accepting cases, often including minimal dollar thresholds. Many agents don’t realize that such guidelines are sometimes flexible. If there are legitimate reasons why a particular case deserves prosecution, explain them and ask for an exception. You may be pleasantly surprised.
Bruce Sackman understood this. At the time an investigator with the Veterans Administration, he worked a case involving the theft of $8,000 in Government funds from a VA Medical Center. The U.S. Atttorney Office had a $10,000 threshold, so the Federal Bureau of Investigation (FBI) was not interested. Bruce presented the case to the AUSA anyway. He explained that the particular facility had a history of numerous frauds and thefts, that employees there felt they could commit crimes with impunity and that arresting the targets could help develop information on other unsolved crimes at the facility. The AUSA accepted the case.
Think Like A Prosecutor
Structure your presentation around the key questions the prosecutor will have in his mind:
- Is a conviction likely?
- Would prosecution require resources better devoted to other cases?
- Would a conviction significantly benefit the government, or society?
1. Is a conviction likely?
If you have done a good job of preparing the case, you have a large head start toward convincing the prosecutor that he can get a conviction. Carry through with this by keeping your presentation crisp and confident.
If you know that the case has a potential weakness (like a voluntariness or waiver of advice of rights issue) you may be able to address it preemptively. If your office has in-house counsel they may be able to help by providing legal memos discussing the admissibility of key evidence or other issues. The fewer things the prosecutor has to worry about, the better.
2. Would prosecution require resources better devoted to other cases?
You can make your case more attractive than others by showing that you will try to reduce the prosecutor’s resource investment. Many are so busy with court appearances, witness preparation and the like that they have little time for legal research and writing. If the prosecutor would appreciate a little help, an offer from your in-house counsel to provide backup legal research or brief drafting support could help, especially if the in-house counsel is familiar with unusual laws affecting your agency.
A prosecutor who is not familiar with a particular type of crime might find copies of complaints, indictments or arrest warrants in similar cases valuable, especially if in electronic format. Contact information for other AUSAs who have handled similar cases could be helpful.
Let the prosecutor know if the victim is willing and able to provide assistance with tasks like compiling, sorting or inputting seized bank account information or other evidence.
3. Would a conviction significantly benefit the government, or society?
Help the prosecutor understand why the case warrants prosecution:
- Did the criminal take advantage of being in a position of trust, like a bank teller?
- Will prosecuting one or more particular cases have a disproportionate impact because you will publicize the convictions to maximize the deterrent effect?
- Has the crime received attention in the news media, thus increasing the deterrent effect of a conviction?
- Could a prosecution provide leverage to help with other unsolved crimes?
- Was the subject a high-ranking corporate or government official? The higher the subject’s position, the greater the deterrent effect.
- Did the crime adversely affect public health or safety?
- Was the target’s behavior bold and flagrant?
- Did the fraud affect more than one agency?
- Were there victims besides the government?
- Can you obtain “victim impact statements” from individuals, or, perhaps even better, organizations that represent citizens or businesses hurt by the crime? They may make the damage seem less abstract and more tangible.
- Can you package several similar small cases so that the bundle is more attractive than any individual case?
- Does the subject have the resources to reimburse the government or other victims?
Be creative in thinking up legitimate reasons why the case should be prosecuted. If you believe in the case, be persistent in pitching it.
Dealing With Declinations
Despite our best efforts, prosecutors sometimes reject good cases. Resist the temptation to respond angrily. Don’t burn your bridges with the prosecutor.
If you believe the case merits additional attention, you may not need to accept a “No” as the final answer. There are several options:
Pitching the Case Again to the Same Prosecutor
Do not be afraid to ask a prosecutor to reconsider a decision in the right circumstances. The prosecutor also wants to see justice done.
Since most people are reluctant to admit that their first evaluation was wrong, give the prosecutor you approached initially a reason to reverse the initial decision. For example, could locate some “new” evidence that arguably addresses a perceived weakness in the case. Note this new evidence need not be critical, since it can fulfill its function if it helps the prosecutor save face.
Having a different agent present the case the second time is another approach. It’s a subtle way of suggesting that your agency has reconsidered the matter that may also help provide the necessary distance that will help the prosecutor justify reversing himself.
Pitching the Case to Another Prosecutor Inside the Same Shop
Absent special circumstances, attempting to persuade another prosecutor in the same office to take a case his colleague has rejected may be a dubious proposition. It is also probably best to avoid appealing to the first prosecutor’s supervisor unless you are confident the case has merit.
Pitching the Case in Another Jurisdiction
Agents may be able to take advantage of the fact that different prosecuting offices have varying caseloads and priorities. A case rejected in one district may be attractive in another. For example, prosecutors for the District of Columbia Superior Court see so many drug cases that they may consider a violation of conflict of interest case a welcome relief, even though the dollar loss to the government is relatively low. Case precedent in another jurisdiction may be more favorable.
“Venue shopping” is not prohibited by law, as the U.S. Supreme Court explained in United States v. Rodriguez-Moreno, 526 U.S. 275, 281 (1999): “[W]here a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done.” Whether venue shopping is wise in a particular case depends on multiple factors, including the preferences of the jurisdictions involved and the investigator’s ability to maneuver without stepping on anyone’s toes. Many, maybe most prosecutors are so busy they probably won’t object if another district wants to handle a case, but try to avoid offending someone whose good will you may need in future cases. Venue shopping may be easier in adjacent districts where a sense of rivalry exists. For example, at one time some investigators believed that it could be worthwhile to consider whether prosecutors in Manhattan or Brooklyn would be more receptive to their cases. Similar rivalries may still be a factor in some jurisdictions.
Procurement fraud cases are considered an unusual specialty item in some jurisdictions, but offices with many such cases, like the Central District of California, the Eastern District of Pennsylvania or the Eastern District of Virginia may have the expertise that makes them more willing and able to accept procurement fraud cases.
A U.S. Attorney’s Office with a military judge advocate (JAG) or agency attorney detailed as a Special Assistant U.S. Attorney may be more willing to take procurement fraud or other special cases.
Many criminal actions violate state or local laws as well as federal statutes, so pitching a rejected case to a state or local prosecutor may be an option. The federal criminal justice system is generally believed to offer significant advantages for prosecutors (like freer use of accomplice testimony and harsher sentences) over most states. On the other hand, state or local prosecutors may be more flexible.
Criminal prosecutions are not the only game in town. Other approaches may be better in a particular case. For example:
Suspension and Debarment. Are you having trouble persuading a prosecutor to accept a case involving contractor misconduct? Administrative suspension or debarment can be an attractive alternative to criminal prosecution. For example, in the federal government a designated agency official can put an offending contractor in the System for Award Management, making it difficult or impossible for the contractor to get any other government contracts.
The only justification for suspension or debarment is a lack of “present responsibility,” i.e., protecting the agency from dishonest or poorly performing contractors. Some agencies suspend contractors when indicted and debar them if convicted.
Suspension and debarment are not technically considered “punishment.” However, the practical reality is that for some businesses being suspended or debarred is the equivalent of a death penalty.
The decision to suspend or debar a contractor is solely the agency’s decision. Some prosecutors don’t want to see a suspension or debarment proceeding because they fear it would complicate a subsequent criminal prosecution. These fears are usually overrated.
Agency Disciplinary Action. Employee misconduct cases can be a trap. Since it’s easier to fire an employee who has been convicted, offices are often tempted to delay disciplining employees in the hope that a prosecutor will obtain a conviction. Such delays rarely work out well. It is usually smarter to go ahead and fire bad employees after coordination with the cognizant prosecutor.
Some investigators are reluctant to consider administrative options because they fear their offices value criminal convictions over administrative sanctions. Well-run investigation shops recognize quality work that leads to a good result for the government, regardless of whether the outcome is criminal or administrative.
Make Them A Winner
Some investigators are so eager to move on to new cases that they fail to support their cases after the prosecutor accepts them. A willingness to analyze financial records or voluminous contract files or serve subpoenas as the prosecutor prepares for trial can make the difference. Howard Cox summarizes the right attitude:
Once the case is accepted for prosecution, the agent must be prepared to do whatever the prosecutor wants to get the case done. I have confronted many cases where agents have refused to do tasks for the prosecutor because it was “not my job.”
The better approach is if the prosecutor wants me to write the indictment for him, baby-sit his kids, walk his dog, balance his checkbook, take his clothes to the dry cleaners, so that he can work on my case—tell me where to report.
An investigator at the Small Business Administration explained this idea more concisely: “Make them a winner. That’s why you are there.”
The nice thing about making the prosecutor a winner is that you will also make yourself a winner.
The author gratefully acknowledges the assistance of Nicola Harrison, Frank Kiley, Howard Cox, Art Elkins, Juanita Lawson and Frank LaRocca in the preparation of this article. Bruce Sackman provided invaluable inspiration.
About the Author: Jerry Lawson served for 20 years as an IG lawyer in Offices of Inspector General at the National Archives, Small Business Administration and the United States Agency for International Development. He served as a Special Assistant U.S. Attorney prosecuting criminal cases in the Eastern District of Virginia and the Western District of Washington.