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cooperation as part of a plea agreement, or compelling cooperation under a “use immunity” order.
The comment observes that these alternative means “are clearly preferable to permitting an
offender to avoid any liability for his/her conduct” and “should be given serious consideration in
the first instance.” USAM §§ 9-27.620 and 9-27.630 set forth considerations a prosecutor should
take into account when entering into a non-prosecution agreement. Generally, the U.S. Attorney
has authority to approve a non-prosecution agreement. USAM § 9-27.600 comment. However,
USAM § 9-27.640 directs that a government attorney should not enter into a non-prosecution
agreement in exchange for a person’s cooperation without first obtaining the approval of the
appropriate Assistant Attorney General, or his or her designee, when the person is someone who
“is likely to become of major public interest.”

These USAM provisions do not address the uses of non-prosecution agreements in
circumstances other than when needed to obtain cooperation.

5. USAM Provisions Relating to Grants of Immunity

Nothing in the USAM directly prohibits the government from using the criminal exposure
of third parties in negotiating with a criminal defendant. Instead, the provision that addresses
immunity relates only to the exchange of limited immunity for the testimony of a witness who has
asserted a Fifth Amendment privilege against self-incrimination. See USAM §§ 9-23.100 et seq.

6. USAM/C.F.R. Provisions Relating to Financial Conflicts of Interest

Department employees are expected to be aware of, and to comply with, all ethics-related
laws, rules, regulations, and policies. See, generally, USAM § 1-4.000 et seq. Specifically, a
government attorney is prohibited by criminal statute from participating personally and
substantially in any particular matter in which he has a financial interest or in which such an
interest can be imputed to him. See 18 U.S.C. § 208 and 5 C.F.R. §§ 2635.401-402. In addition,
a Department employee should seek advice from an ethics official before participating in any
matter in which his impartiality could be questioned. If a conflict of interest exists, in order for
the employee to participate in the matter, the head of the employee’s component, with the
concurrence of an ethics official, must make a determination that the interest of the government in
the employee’s participation outweighs the concern that a reasonable person may question the
integrity of the Department’s programs and operations. The determination must be made in
writing. See 5 C.F.R. §§ 2635.501-502.

B. Other Department Policies

1. Department Policies Relating to the Disposition of Charges

The Attorney General has the responsibility for establishing prosecutorial priorities for the
Department. Over the span of several decades, each successive Attorney General has articulated
those priorities in policy memoranda issued to all federal prosecutors. As applicable here, on
September 22, 2003, Attorney General John Ashcroft issued a memorandum regarding
“Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and
Sentencing” (Ashcroft Memo). The Ashcroft Memo, which explicitly superseded all previous
Departmental guidance on the subject, set forth policies “designed to ensure that all federal

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