Handbook 9.6
Trial and Court-Related Activities
Chapter 3
Pre-Trial Procedures
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Contents
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The following topics are discussed in this chapter;
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Indictment and information.
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Complaint.
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Initial appearance.
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Preliminary hearing.
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Arraignment.
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Pleadings and motions.
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Pre-trial administrative duties of the special agent.
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The government's formal accusation charging a person or entity with the
commission of a crime is done in the form of an indictment or an information.
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An indictment is a written accusation from a grand jury charging a person
or entity with a Federal criminal charge. The indictment is presented to
the court which impaneled the grand jury by the grand jury foreman.
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A federal indictment is returned by a grand jury consisting of 16 to 23 members
summoned by order of the court. They serve until discharged by the court,
but not longer than 18 months. An indictment may be found only upon concurrence
of 12 or more jurors. Otherwise, a no true bill is returned. The court may
direct that an indictment be kept secret until the defendant is in custody
or has given bail. In that event, the clerk seals the indictment and no person
may disclose the finding of the indictment except when necessary for the
issuance and execution of a warrant or summons. [Rule 6(e), Federal Rules
of Criminal Procedure (FRCP)]
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Grand jury proceedings are kept secret to:
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Prevent the possible flight from justice of those who are the subjects of
a grand jury investigation.
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Provide anonymity to grand jury members and to protect them from undue influence
and harassment.
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Provide anonymity to grand jury witnesses prior to an indictment.
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Prevent subornation of perjury or tampering with witnesses.
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Protect the reputations of persons investigated by the grand jury but not
indicted.
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While the grand jury is in session, the only persons who may be present are
attorneys for the Government, the witness under examination, a stenographer
or operator of a recording device, and interpreters when needed. An indictment
may be dismissed upon a showing that an unauthorized person was present during
the proceedings. No person other than the jurors may be present while the
grand jury is deliberating or voting. [Rule 6(d), Federal Rules of Criminal
Procedure (FRCrP)]
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Disclosure of matters occurring before the grand jury may be made to those
Government personnel deemed necessary by Government attorneys to assist in
the performance of their duty to enforce Federal criminal law. With the consent
of the Government attorney, Special Agents may examine documents and records
which are before the grand jury, and inspect its transcripts. In addition,
Special Agents may assist in the investigation of criminal tax violations
with the approval of the Department of Justice, Tax Division.
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Federal rules do not impose any obligation of secrecy upon witnesses of the
Grand Jury [Rule 6(e), FRCrP, Note of Advisory Committee], although some
Federal jurisdictions require an oath of secrecy.
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A grand jury is not obliged to grant a request from a prospective defendant
to appear before it as a witness. However, Justice Department procedures
provide that where no burden upon the grand jury or delay of its proceedings
is involved, reasonable requests of a prospective defendant to personally
testify before the grand jury are to be given favorable consideration. This
may be done provided that any such witnesses explicitly waive their right
against self-incrimination, are represented by counsel or voluntarily and
knowingly appear without counsel, and consent to full examination under oath.
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After the grand jury's function has ended, a trial court may order disclosure
of the grand jury transcript to the defendants if there is a particularized
need for disclosure to support an attack upon the indictment, to impeach
a witness or refresh recollection, or in a perjury prosecution to inspect
their own grand jury testimony.
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An information is an accusation in writing against a person named therein
for some criminal offense (only misdemeanors, unless the defendant expressly
waives indictment in open court) and is filed with the court by competent
officers, such as the United States Attorney, on their oath of office.
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A complaint is a sworn written statement made before a United States Magistrate
or, if not reasonably available, another person empowered to commit persons
charged with offenses against the United States. [U.S. Judge, chancellor,
judge of Supreme or Superior Court, chief or first judge of common pleas,
mayor of a city, justice of the peace, or other magistrate of any State where
the offender may be found. (18 USC 3041)] It should set forth the substantial
and material features of the offense charged and should be worded substantially
in the statutory language of the offense. It must be sworn to positively
and not merely aver information and belief, and should be based upon the
complainant's personal knowledge or supported by other proof. In most instances,
a Special Agent will author the complaint.
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The filing of a complaint before a United States Magistrate prior to the
expiration of the statute of limitations will extend the period nine months
from the date filed in Internal Revenue cases. [26 USC 6531] A complaint
should include sufficient probable cause and directly indicate that the defendant
committed the crime charged, and should disclose the source of the directly
incriminating information.
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If there is probable cause to believe that a defendant has committed an offense,
the magistrate will issue an arrest warrant or, upon the request of the attorney
for the Government, a court summons in lieu of a warrant requiring the defendant
to appear before the magistrate at a stated time and place to answer the
complaint. (If the defendant fails to appear in response to the summons,
a warrant could be issued.)
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More than one warrant or summons may be issued on the same complaint in order
to facilitate service and return where several defendants are named in the
same complaint. Physical delivery of the warrant to the arresting officer
is not necessary. The officer need not have physical possession of the warrant
in order to arrest lawfully, but upon request must show it to the defendant
as soon as possible. A warrant for arrest in a criminal case is effective
anywhere in the United States.
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At the initial appearance of the arrested person, the judge or magistrate
shall fix a date for the preliminary examination to determine whether there
is probable cause to believe that an offense has been committed and that
the arrested person has committed it. The examination shall be held within
a reasonable time after the initial appearance, but in any event not later
than:
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Ten days after the date of the initial appearance if the arrested person
is held in custody without any provision for release, or is held in custody
for failure to meet the conditions of release imposed, or is released from
custody only during specified hours of the day; or
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Twenty days after the initial appearance if the arrested person has otherwise
been released from custody.
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No preliminary examination is required nor shall an arrested person be released
in accordance if, at any time after the initial appearance before the judge
or magistrate and prior to the date fixed for the preliminary examination,
an indictment is returned, or, in appropriate cases, an information is filed
in a United States court against such person.
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At the preliminary hearing, the accused may cross-examine witnesses and may
introduce evidence. The accused is not required to plead at this time. If
the magistrate concludes from the evidence that there is probable cause to
believe the accused has committed an offense, or if the accused waives
preliminary examination, the magistrate shall forthwith hold the accused
to answer in the district court; otherwise the magistrate shall discharge
them. This would not prevent subsequent indictment of the accused on the
same charge.
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An arraignment consists of calling the defendants before a judge, reading
the indictment to them, or informing them of the charges, calling on them
to state whether they are guilty or not guilty, and entering their plea.
The defendants will be given a copy of the indictment or information before
they are called upon to plead.
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A defendant may plead not guilty, guilty or, with the consent of the court,
nolo contendere (no contest). The court may refuse to accept a plea of guilty,
and shall not accept such plea or a plea of nolo contendere without first
addressing the defendant personally and determining that the plea is made
voluntarily with understanding of the nature of the charge and the consequences
of the plea. If a defendant refuses to plead or if the court refuses to accept
a plea of guilty or if a defendant corporation fails to appear, the court
shall enter a plea of not guilty. The court shall not enter a judgment upon
a plea of guilty unless it is satisfied that there is factual basis for the
plea.
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If a not guilty plea is entered, the court proceeds by setting a date for
trial.
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If the defendant pleads guilty or nolo contendere at arraignment, the procedural
steps prior to and during trial as prescribed in the Federal Rules of Criminal
Procedure Rules 12 through Rule 31 do not apply and the court proceeds to
hear the facts preliminary to imposing sentence.
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Many courts are informed of the facts by the investigating special agent
or other representative of the Criminal Investigation Division. The role
of the special agent in this regard is especially important since his or
her oral presentation of facts in open court forms the only supporting basis
of the offenses charged in the information or indictment. See Chapter 2 of
this Handbook, 9.6, entitled Plea Agreements.
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A plea of nolo contendere subjects the defendant to the same punishment as
a plea of guilty, but does not admit the charges. It cannot be used as an
admission in any civil suit for the same act.
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There are a variety of motions which are sometimes filed prior to trial.
Many motions filed by the defense, such as motions for a change of venue
or to disqualify a judge are routinely responded to by the Assistant United
States Attorney (AUSA) with little involvement from the special agent. Responding
to other motions, such as those to return seized property or to suppress
evidence, may require statements or other involvement by the special agent.
The primary discussion in this section deals with discovery and Henthorn
requests.
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Pre-trial opportunities for the Government and the defense to examine evidence
within the opposing party's possession, custody or control are afforded by
Rule 16 of the Federal Rules of Criminal Procedure.
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The Government or a defendant can, by subpoena duces tecum, prior to trial,
compel production of evidentiary material under Rule 17(c) of the Federal
Rules of Criminal Procedure.
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Special agents should make certain that any request for information under
these rules which they are asked to fulfill is authorized under 26 USC 6103.
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Henthorn requests are requests for criminal discovery of IRS employees' personnel
files.
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Henthorn requests are forwarded from the United States Attorney's Office
to the Chief, Criminal Investigation (CI).
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Whenever a Henthorn request is received by the Chief, CI, for information
concerning an IRS employee who is scheduled to be a witness for the prosecution,
the Chief shall:
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Notify the District Director of the district in which the employee-witness
works.
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Notify the functional chief of the division in which the employee-witness
works.
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Instruct this functional chief or designee (at least two levels above the
employee witness) to obtain and examine personnel files for evidence affecting
witness credibility, or other exculpatory or impeachment material subject
to discovery.
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This functional chief or designee will then write a letter to the Assistant
United States Attorney (AUSA) (see Exhibit 3-1, Form L-2960) including a
declaration that the personnel files have been reviewed and contain one of
the following statements:
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No evidence of perjurious conduct or like dishonesty, nor anything which
might be considered as exculpatory or impeachment material subject to discovery
was detected.
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The attached information, obtained from the files listed, may constitute
material subject to discovery. Please examine this information to make a
determination.
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The functional chief or his or her designee will provide the chief, Criminal
Investigation with a copy of the letter (Exhibit 3-2, Form L-2060) and
declaration (Exhibit 3-2, Forms L-2961 or Exhibit 3-3, Form L-2962) sent
to the United States Attorney. The Chief, Criminal Investigation will ensure
that the Henthorn request has been complied with by the functional chief
or his or her designee.
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If the Henthorn request received by the Chief concerns a Counsel employee
whose post of duty is in the field, notification should be sent to the Regional
Counsel. For a Counsel employee whose post of duty in the National Office,
notification should be sent to the Assistant Chief Counsel (Criminal Tax).
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Eight categories of files are relevant to a Henthorn request, and must be
obtained and examined:
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Official personnel files (OPFs).
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Employee performance files.
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Drop files.
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***Employee investigative files.
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Disciplinary and adverse action case files.
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Grievance files.
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Merit System Protection Board files.
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Equal Employment Opportunity files.
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NOTE:
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*Treasury Inspector General for Tax Administration (TIGTA) should be contacted
concerning investigative files of grade 15 employees and executives. **Due
to privacy interests of the employee-witness, TIGTA has expressed reservations
regarding the release of certain Internal Security investigative files or
reports of investigation to anyone in the supervisory chain of the
employee-witness. Therefore, TIGTA has the option of releasing such files
directly to the AUSA, or to Regional Counsel, who will examine such files
separately and advise the AUSA as to their contents.
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The functional chief is responsible for determining the materiality of
information contained in the personnel files. If any uncertainty exists,
the local District Counsel or Regional Counsel, as appropriate, should be
contacted for guidance.
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The functional chief must comply with the Privacy Act Accounting of Disclosure
requirements set forth at 5 USC 552a(c). See the Disclosure of Official
Information Handbook for additional information.
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If return information is to be disclosed, the material should be submitted
in camera for the court to make a Brady relevance determination giving due
consideration to the statutory proscriptions in 26 USC 6103. To the extent
possible, taxpayer identity information should be redacted.
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All information disclosed will be accompanied by the following statement:
The information concerning (name of employee-witness) was obtained from IRS
personnel and/or investigative files. The information is being provided to
you for official use only and remains the property of the Internal Revenue
Service. Any further dissemination of this information should be coordinated
with (name of District Counsel) prior to disclosure. Once the need for this
information has expired, the information should be returned or destroyed.
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The information should be hand-delivered to the Assistant United States Attorney.
If this is not possible, the information should be transmitted in a double
envelope with the marking TO BE OPENED BY ADDRESSEE ONLY.
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[9.6] 3.8 (08-26-1999)
PRE-TRIAL ADMINISTRATIVE DUTIES OF THE SPECIAL AGENT
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The special agent should complete all administrative duties, as detailed
below, as far in advance of the trial as possible.
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The special agent should notify Government employees who will be witnesses,
giving them as much advance notice as possible. These may include;
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Service Center witness.
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Summary or expert witness.
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Office of Forensic Science and Support (OFSS).
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The special agent should secure documents in the custody and control of the
IRS which will be used at trial. These include;
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All available original income tax returns.
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Other original documents and correspondence filed by the defendant with the
IRS.
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Current certified transcripts of accounts, certificates of assessments and
payments, or certificates of lack of record.
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This should be coordinated with the Service Center witness.
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The special agent should arrange to have any prisoners available for trial
if they are to be used as witnesses.
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The special agent should review all stipulations for accuracy.
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The request for a Service Center witness should be made by memorandum from
the Chief, Criminal Investigation Division, to the Chief, Criminal Investigation
Branch at the service center where the returns were filed or should have
been filed. It should include;
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Defendant's name.
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Social security or employer identification number.
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Personal and business addresses.
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The scheduled date and place of the trial.
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Spouse's name.
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Name and telephone number of the Assistant United States Attorney who is
handling the case.
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Service center documents and records to be entered into evidence.
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Anticipated testimony.
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Special agent's name and telephone number.
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In a tax trial, the revenue agent is often used by the Government as the
expert witness to establish the computations of deficiencies as set forth
in the indictment or information. An expert witness is one who has acquired
ability to deduce correct inferences from hypothetically stated facts, or
from facts involving scientific or technical knowledge. The trial judge
determines whether his or her qualifications are sufficient. In tax cases,
expert witnesses may be used to testify concerning various matters such as
handwriting comparison, accounting and bookkeeping matters, methods of operating
a lottery and computation of income tax liability.
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A request for a witness from the Office of Forensic Science and Support should
be made in writing and include the following;
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Defendant's name.
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The investigation number.
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The agent's name and telephone number.
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The Assistant U.S. Attorney's name and telephone number.
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The anticipated trial date.
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A brief synopsis of the case.
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A return mailing address.
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Requests for witnesses from the OFSS, other than trial illustrators should
be sent to:
Criminal Investigation Forensic Laboratory
3rd Floor 29 North Wacker Drive
Chicago, Illinois 60606
Tel: (312) 886-7009 Fax: (312) 353-1560.
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Requests for the services of the Trial Illustrator, (who reports to the Chief
of the Office of Forensic Science and Support) should be submitted in writing
at least 30 days prior to the anticipated trial date directly to:
Chief Trial Illustration Section
7940 Kentucky Dr.
Stop 851
Florence, Kentucky 41042
Tel: (606) 292-3510 Fax: (606) 292-3130
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The Trial Illustrator Section can provide information for use in cost of
prosecution computations, including travel costs, materials and supplies,
illustrator staff-hour costs, and shipping costs. See Handbook 9.4 Chapter
11 for additional information.
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The Government exhibit list is used during trial to keep track of exhibits
which have been entered into evidence. Copies are provided to the court,
defense counsel, and the summary or expert witness. The exhibits should be
listed and numbered in the order of anticipated introduction into evidence.
All evidence to be introduced at trial is listed, including documents which
will be admitted through stipulation.
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The following information should be listed for each exhibit:
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Exhibit number.
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Description of the document.
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Two spaces, one to indicate when the document was offered into evidence and
the other to show if it was admitted.
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The relevancy of the document, identification of the witness who will be
introducing the document, or other comments may be included on the government's
copy of the exhibit list.
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The special agent will frequently be asked to aid in the preparation of a
trial brief or trial book. A sheet should be prepared for each witness showing;
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Full name, address, and telephone number.
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Business or occupation, business telephone number, and employer.
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A summary of expected testimony.
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A list and description of documents, if any, which the witnesses will produce
or identify.
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The location of the evidence if not in the custody of the witness or the
Government.
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Comments and data which reflect the witness' reliability or credibility,
including criminal record and relationship to the defendant or other witnesses.
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A list of all documents such as question and answer statements, affidavits,
or memorandums of interview obtained from the witness or prepared by the
agent.
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The witness sheets may be placed in a loose leaf notebook in the order the
witnesses are expected to testify. If many are involved it is helpful for
reference purposes to assign each a number and prepare a list of witnesses
arranged and numbered in the same order as the witness sheets.
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Usually a folder should be prepared for each witness, bearing the witness'
name and number. The folder should contain:
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A copy of the witness sheet.
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A copy of the subpoena.
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Any documents, such as memorandums, affidavits, or question and answer statements
relating to the witness.
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Documents obtained from the witness prior to trial which are to be offered
as evidence and copies to be substituted when originals are withdrawn.
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Charts, schedules, graphs, photographs, and other visual aids or evidence
to be introduced by the witness.
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In anticipation of trial, the AUSA may direct the special agent to make certain
that all government witnesses to be called at trial can be located, are prepared
to testify, and if necessary, provided protection. Trial subpoenas are usually
served on all witnesses who are not Federal employees.
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The Government attorney will request the special agent's assistance in the
preparation and service of subpoenas for witnesses to appear. The special
agent should review each subpoena for accuracy and content.
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Witnesses should be requested to appear in advance of testifying in court
for purposes of reviewing their testimony and ascertaining whether the necessary
documentary evidence is available. Witnesses should be given the maximum
possible notice prior to their appearance so that the necessary travel
accommodations can be arranged.
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The special agent should inform the Government attorney as soon as possible
of any circumstances which may affect the timely appearance of a witness
or any difficulty in locating or serving a witness.
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In most instances, collateral requests should be used in serving subpoenas
on witnesses located outside the district.
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The special agent should maintain a listing of all subpoenas to be served,
the date each was received, the date each was served, and the date each was
returned to the court.
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The special agent should only re-interview witnesses with the approval of
the AUSA. The special agent should discuss with the attorney what topics
should be covered in the interviews. Often, the AUSA will participate in
the interview. Some of the areas which the attorney may suggest include whether
the witness has brought subpoenaed documents or physical evidence; can recall
his/her previous statements (it may be advisable for the witness to read
transcripts of prior statements); and can identify the defendant and time
and place of occurrence, if pertinent. The special agent should report any
anticipated difficulties with the witnesses to the United States Attorney.
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[9.6]
3.8.3.3 (09-08-1998)
Preparation of Evidence for Discovery and Inspection By the Defendant
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The Government attorney will normally require the assistance of the special
agent in complying with a court order for discovery. After the attorney and
the special agent have determined which documents and statements are to be
provided to the defense counsel, the special agent should make arrangements
to have the material duplicated. If the records are voluminous and the Government
attorney agrees, it may be advisable to invite defense counsel to the office
where the records are located to review them.
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The special agent should prepare an inventory for defense counsel which includes
a description of the documents and the date provided. A copy should be given
to the Government attorney.
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The special agent should inform the Government attorney of any evidence which
should be considered under the Brady Doctrine. Under the Brady Doctrine,
the defense is entitled to the production of any exculpatory evidence in
the possession of the Government.
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As soon as possible after the indictment has been returned or the information
has been filed, the special agent should make arrangements to meet with the
Government attorney handling the case for a pretrial conference.
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The discussion should include the following:
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Any discussions the attorney has had with the defendant or defense counsel
regarding motions filed, defenses presented, and plea offerings.
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Any recent changes affecting Government witnesses.
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The anticipated direction of the trial, including the order of witnesses
to be called and evidence to be introduced.
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The use of protected witnesses and informants as Government witnesses.
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The special agent's testimony to be given at trial.
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Evidence the parties will agree to have entered by stipulation.
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Illustrations, charts, graphs, or photographs to be used.
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The special agent's duties and responsibilities in assisting the attorney
to prepare for the trial.
Exhibit [9.6]
3-1 (09-08-1998)
Form Letter 2960
Exhibit [9.6]
3-2 (09-08-1998)
Form L-2961
Exhibit [9.6] 3-2
(Cont.) (09-08-1998)
Form L-2961
Exhibit [9.6]
3-3 (09-08-1998)
Form L-2962
Exhibit [9.6] 3-3
(Cont.) (09-08-1998)
Form L-2962
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Internal Revenue Manual
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Hndbk. 9.6 Chap. 3 Pre-Trial Procedures
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(09-08-1998)
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![Exhibit [9.6] 3-1 (09-08-1998) Form Letter 2960](36465F01.GIF){kind=link}
![Exhibit [9.6] 3-2 (09-08-1998) Form L-2961](36465F02.GIF){kind=link}
![Exhibit [9.6] 3-2 (Cont.) (09-08-1998) Form L-2961](36465F03.GIF){kind=link}
![Exhibit [9.6] 3-3 (09-08-1998) Form L-2962](36465F04.GIF){kind=link}
![Exhibit [9.6] 3-3 (Cont.) (09-08-1998) Form L-2962](36465F05.GIF){kind=link}