United States District Court

United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-24 SUBPOENA FOR: PERSON I X I DOCUMENTS OR OBJECTISI X YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. PLACE: United States District Courthouse 701 Clematis Street Wcst Palm Beach, Florida 33401 ROOM: Grand Jury Room DATE AND TIME: December 1, 2006 9:30 am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Any and all records related to your employment with Jeffrey Epstein, including but not limited to paystubs, W-2 forms, correspondence, employment applications, and employment reviews. Any and all information regarding methods to contact Jeffrey Epstein directly or via any secretaries/assistants from 1/1/2004 to the present, including but not limited to, telephone numbers, cellular telephone numbers, Blackberry addresses, e-mail addresses, and mailing addresses. Any and all information regarding appointments for massages performed on Jeffrey Epstein in Palm Beach, Florida or elsewhere. Please coordinate your compliance ' i s d confirm the date and time , and location of your appearance with Special Agent , Federal Bureau of Investigation, Telephone: (561) 822-5946. This subpoena shall remain in effect until you are granted leave to depart by the court or by an officer acting on behalf of the court. CLERK (BY) DEPUTY CLERK DATE: November 13, 2006 This subpoena is issued upon application •If not applicable. ma ^none.' Name, Address and Phone Number of Assistant U.S. Attorney To be use' a int ofA0110 5 FORM ORD-227 JAN.86 Case No. 08-80736-CV-MARRA P-000213 EFTA00226396 RETURN OF SERVICE' RECEIVED BY SERVER DATE PLACE SERVED DATE PLACE SERVED ON (NAME) SERVED BY TITLE STATEMENT OF SERVICE FEES TRAVEL SERVICES TOTAL DECLARATION OF SERVICE' I declare under penalty of perjury under the laws of the United States of America that the foregoing Information contained in the Return of Service and Statement of Service Fees is true and correct. Executed on DATE Signature of Server Address of Server ADDITIONAL INFORMATION 1 As to who may serve a subpoena and the manner of Its service see Rule 17(d). Federal Rules of Criminal Procedure, or Rule 45(c), Federal Rules of Civil Procedure. 2."Fees and mileage need not be tendered to the witness upon service of a subpoena Issued on behalf of the United States or an officer or agency thereof (Rule 45(c), Federal Rules of CND Procedure; Rule 17(d), Federal Rules of Criminal Procedure) or on behalf of certain Indigent parties and criminal defendants who are unable to pay such costs (28 USC 1825, Rule 17(b) Federal Rules of Criminal Procedure)" Case No. 08-80736-CV-MARRA P-000214 EFTA00226397 United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-24 SUBPOENA FOR: PERSON X X DOCUMENTS OR OBJECT($( YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. PLACE: United States District Courthouse 701 Clematis Street West Palm Beach, Florida 33401 ROOM: Grand Jury Room DATE AND TIME: December I, 2006 9:30 am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Any and all records related to your employment with Jeffrey Epstein, including but not limited to paystubs, W-2 forms, correspondence, employment applications, and employment reviews. Any and all information regarding methods to contact Jeffrey Epstein directly or via any secretaries/assistants from 1/1/2004 to the present, including but not limited to, telephone numbers, cellular telephone numbers, Blackberry addresses, e-mail addresses, and mailing addresses. Any and all information regarding appointments for massages performed on Jeffrey Epstein in Palm Beach, Florida or elsewhere. Please coordinate your compliance • • d confirm the date and time , and location of your appearance with Special Agent , Federal Bureau of Investigation, Telephone: (561) 822-5946. This subpoena shall remain in effect until you are granted leave to depart by the court or by an officer acting on behalf of the court. CLERK (BY) DEPUTY CLERK Kos% Our DATE: November 13. 2006 This subpoena is issued upon application non •If not mastic:able, ma Woe- Name, Address and Phone Number of Assistant U.S. Attorney To mod in le etA0110 FORM ORD-227 JAN.86 Case No. 08-80736-CV-MARRA P-000216 EFTA00226398 United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-24-2 SUBPOENA FOR: rd PERSON r xi DOCUMENTS OR OBJECTISI YOU ARE HEREBY COMMANDED to appear and testifybefore the Grand Jury of the United States District Court at the place, date and time specified below. PLACE: United States District Courthouse 701 Clematis Street West Palm Beach, Florida 33401 ROOM: Grand Jury Room DATE AND TRAE: January 12, 2007 9:30 arn• YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Any and all records related to your employment with Jeffrey Epstein, including but not limited to paystubs, W-2 forms, correspondence, employment applications, and employment reviews. Any and all information regarding methods to contact Jeffrey Epstein directly or via any secretaries/assistants from 1/1/2004 to the present, including but not limited to, telephone numbers, cellular telephone numbers, Blackberry addresses, e-mail addresses, and mailing addresses. Any and all information regarding appointments for massages performed on Jeffrey Epstein in Palm Beach, Florida or elsewhere. *Please coordinate your compliance w't s nd confirm the date and time , and location of your appearance with Special Agent Federal Bureau of Investigation, Telephone: (561) 822-5946. This subpoena shall remain in effect until you arc granted leave to depart by the court or by an officer acting on behalf of the court. CLERK (BY) DEPUTY CLERK DATE: December 18, 2006 This subpoena is issued upon application of the United Slates of •Ifnot appl tc able. enter 'none' TobtfdaliblavolA0116 FORM ORD-227 JANA6 Case No. 08-80736-CV-MARRA 1a-000219 EFTA00226399 LAW OrriCES LYONS AND SANDERS CHARTERED DALE R. SANDERS • BRUCE M. LYONS •• HOWARD L. OREITZER EDWARD 0. BERGER 11959-1907) 'ALSO ^mimeo IN It/TORINO •• ALSO ADMITTED IN COLORADO February 14, 2007 VIA US Re: 600 NORTHEAST 0 AVENUE 1 FORT LADMIRDALE. LORIDA 33301 TELEPHONE (954) 487-8700 TELEFAX 0154/ 783-4.58 MAILING ADDRESS P. O. BOX 1778 FORT LAUDERDALE. FL 33302-1778 Grand Jury Subpoena Dear Ms. Villafana: on January 25, 2007, Agents" *Slater and with a grand jury'subpoena for my to appear on February 13,'2007. I indicate oss would assert her rights under the Fifth Amendment and on consent, the appearance has been extended. You have asked me to set out the basis for my request and that you apply thirugh appropriate channels for a ormal grant of use immunity or Ms. Ross. I do so here. As I indicated to you when we conversed last week, Ms. Ross is no longer employed by Mr. Epstein, but has read much of what can be found on the Internet about the investigation of Mr. Epstein. From that review, she is aware that the police considered charging several persons close to Mr. Epstein, including at least one employee. Given that, and the seemingly broad scope of the investigation, Ms. Ross asserts her rights under the Fifth Amendment. Indeed, considering that both the state authorities in Palm Beach County and your office are conducting investigations, there is every reason for her to be concerned and therefore to assert her constitutional rights. If you continue to want her to appear before a grand jury, be advised that she will assert Case No. 08-80736-CV-MARRA P-000220 EFTA00226400 her rights under the Fifth Amendment unless there is a formal grant of immunity. If you should have any questions regarding the above, please feel free to contact me. Very truly your UCE M. LYONS BML/md Case No. 08-80736-CV-MARRA P-00022 I EFTA00226401 USAM 9-27.000. Principles of Federal Prosecution 9-27.600 Entering into Non-prosecution Agreements in Return for Cooperation — Generally A. Except as hereafter provided, the attomcy for the government may, with supervisory approval, enter into a non- prosecution agreement in exchange for a person's cooperation when, in his/her judgment, the person's timely cooperation appears to be necessary to the public interest and other means of obtaining the desired cooperation arc unavailable or would not be effective. B. Comment. Page I of 5 I. In many cases, it may be important to the success of an investigation or prosecution to obtain the testimonial or other cooperation of a person who is himself/herself implicated in the criminal conduct being investigated or prosecuted. However, because of his/her involvement, the person may refuse to cooperate on the basis of his/her Fifth Amendment privilege against compulsory self-incrimination. In this situation, there are several possible approaches the prosecutor can take to render the privilege inapplicable or to induce its waiver. a. First, if time permits, the person may be charged, tried, and convicted before his/her cooperation is sought in the investigation or prosecution of others. Having already been convicted himself/herself, the person ordinarily will no longer have a valid privilege to refuse to testify and will have a strong incentive to reveal the truth in order to induce the sentencing judge to impose a lesser sentence than that which otherwise might be found appropriate. 4 b. Second, the person may be willing to cooperate if the charges or potential charg against him/her are reduced in number or degree in return for his/her cooperation and his/her entry a guilty plea to the remaining charges. An agreement to file a motion pursuant to Sentencing Guideline 5K1.1 or Rule 35 of the Federal Rules of Criminal Procedure after the defendant gives full and complete cooperation is the preferred method for securing such cooperation. Usually such a concession by the government will be all that is necessary, or warranted, to secure the cooperation sought. Since it is certainly desirable as a matter of policy that an offender be required to incur at least some liability for his/her criminal conduct, government attorneys should attempt to secure this result in all appropriate cases, following the principles set forth in USAM 9-27.430 to the extent practicable. c. The third method for securing the cooperation of a potential defendant is by means of a court order under 18 U.S.C. §§ 600126003. Those statutory provisions govern the conditions under which uncooperative witnesses may be compelled to testify or provide information notwithstanding their invocation of the privilege against compulsory self incrimination. In brief, under the so-called "use immunity" provisions of those statutes, the court may order the person to testify or provide other information, but neither his/her testimony nor the information he/she provides may be used against him/her, directly or indirectly, in any criminal case except a prosecution for perjury or other failure to comply with the order. Ordinarily, these "use immunity" provisions should be relied on in cases in which attorneys for the government need to obtain sworn testimony or the production of information before a grand jury or at trial, and in which there is reason to believe that the person will refuse to testify or provide the information on the basis of his/her privilege against compulsory self- incrimination. See aSAM 9-23.000. Offers of immunity and immunity agreements should be in writing. Consideration should be given to documenting the evidence available prior to the immunity offer. d. Finally, there may be cases in which it is impossible or impractical to employ the methods described above to secure the necessary information or other assistance, and in which the person is willing to cooperate only in return for an agreement that he/she will not be prosecuted at all for what he/she has done. The provisions set forth hereafter describe the conditions that should be met before such an agreement is made, as well as the procedures recommended for such cases. Exhibit 15 lutp://www.usdoj.gov/usao/cousa/foia_reading_room/usam/title9/27mcrm.htm I /22/2007 EFTA00226402 USAM 9-27.000. Principles of Federal Prosecution Page 2 of 5 2. It is important to note that these provisions apply only if the case involves an agreement with a person who might otherwise be prosecuted. If the person reasonably is viewed only as a potential witness rather than a potential defendant, and the person is willing to cooperate, there is no need to consult these provisions. USAM 9-27.600 describes three circumstances that should exist before government attorneys enter into non-prosecution agreements in return for cooperation: the unavailability or ineffectiveness of other means of obtaining the desired cooperation; the apparent necessity of the cooperation to the public interest; and the approval of such a course of action by an appropriate supervisory official Unavailability or Ineffectiveness of Other Means. As indicated above, non-prosecution agreements are only one of several methods by which the prosecutor can obtain the cooperation of a person whose criminal involvement makes him/her a potential subject of prosecution. Each of the other methods--seeking cooperation after trial and conviction, bargaining for cooperation as part of a plea agreement, and compelling cooperation under a "use immunity" order--involves prosecuting the person or at least leaving open the possibility of prosecuting him/her on the basis of independently obtained evidence. Since these outcomes are clearly preferable to permitting an offender to avoid any liability for his/her conduct, the possible use of an alternative to a non-prosecution agreement should be given serious consideration in the first instance. Another reason for using an alternative to a non-prosecution agreement to obtain cooperation concerns the practical advantage in terms of the person's credibility if he/she testifies at trial. If the person already has been convicted, either after trial or upon a guilty plea, for participating in the events about which he/she testifies, his/her testimony is apt to be far more credible than if it appears to the trier of fact that he/she is getting off "scot free." Similarly, if his/her testimony is compelled by a court order, he/she cannot properly be portrayed by the defense as a person who has made a "deal" with the government and whose testimony is, therefore, suspect; his/her testimony will have been forced from him/her, not bargained for. In some cases, however, there may be no effective means of obtaining the person's timely cooperation short of entering into a non-prosecution agreement. The person may be unwilling to cooperate fully in return for a reduction of charges, the delay involved in bringing him/her to trial might prejudice the investigation or prosecution in connection with which his/her cooperation is sought and it may be impossible or impractical to rely on the statutory provisions for compulsion of testimony or production of evidence. One example of the latter situation is a case in which the cooperation needed does not consist of testimony under oath or the production of information before a grand jury or at trial. Other examples are cases in which time is critical, or where use of the procedures of 18 U.S.C. §?-6003 would unreasonably disrupt the presentation of evidence to the grand jury or the expeditious development of an investigation, or where compliance with the statute of limitat ions or the Speedy Trial Act precludes timely application for a court order. Only when it appears that the person's timely cooperation cannot be obtained by other means, or cannot be obtained effectively, should the attorney for the government consider entering into a non-prosecution agreement. 3. Public Interest. If he/she concludes that a non-prosecution agreement would be the only effective method for obtaining cooperation, the attorney for the government should consider whether, balancing the cost of foregoing prosecution against the potential benefit of the person's cooperation, the cooperation sought appears necessary to the public interest. This "public interest" determination is one of the conditions precedent to an application under 18 U.S.C. § 6003 for a court order compelling testimony. Like a compulsion order, a non-prosecution agreement limits the government's ability to undertake a subsequent prosecution of the witness. Accordingly, the same "public interest" test should be applied in this situation as well. Some of the considerations that may be relevant to the application of this test are set forth in USAM 9-27.620. http://www.usdoj.gov/usao/eousaffoitreading_room/usarn/title9/27mcrm.htrn 1/22/2007 EFTA00226403 USAM 9-27.000. Principles of Federal Prosecution Page 3 of 5 4. Supervisory Approval. Finally, the prosecutor should secure supervisory approval before entering into a non-prosecution agreement. Prosecutors working under the direction of a United States Attorney must seek the approval of the United States Attorney or a supervisory Assistant United States Attorney. Departmental attorneys not supervised by a United States Attorney should obtain the approval of the appropriate Assistant Attorney General or his/her designee, and should notify the United States Attorney or Attorneys concerned. The requirement of approval by a superior is designed to provide review by an attorney experienced in such matters, and to ensure uniformity of policy and practice with respect to such agreements. This section should be read in conjunction with USAM 9-27,640, concerning particular types of casts in which an Assistant Attorney General or his/her designee must concur in or approve an agreement not to prosecute in ret urn for cooperation. 9-27.620 Entering into Non-prosecution Agreements in Return for Cooperation - Considerations to be Weighed A. In determining whether, a person's cooperation may be necessary to the public interest, the attorney for the government, and those whose approval is necessary, should weigh all relevant considerations, including: I. The importance of the investigation or prosecution to an effective program of law enforcement; 2. The value of the person's cooperation to the investigation or prosecution; and 3. The person's relative culpability in connection with the offense or offenses being investigated or prosecuted and his/her history with respect to criminal activity. B. Comment. This paragraph is intended to assist Federal prosecutors, and those whose approval they must secure, in deciding whether a person's cooperation appears to be necessary to the public interest. The considerations listed here arc not intended to be all-inclusive or to require a particular decision in a particular case. Rather they are meant to focus the decision-maker's attention on factors that probably will be controlling in the majority of cases. 1. Importance of Case. Since the primary function of a Federal prosecutor is to enforce the criminal law, he/she should not routinely or indiscriminately enter into non-prosecution agreements, which are, in essence, agreements not to enforce the law under particular conditions. Rather, he/she should reserve the use of such agreements for cases in which the cooperation sought concerns the commission of a serious offense or in which successful prosecution is otherwise important in achieving effective enforcement of the criminal laws. The relative importance or unimportance of the contemplated case is therefore a significant threshold consideration. 2. Value of Cooperation. An agreement not to prosecute in return for a person's cooperation binds the government to the extent that the person carries out his/her part of the bargain. See Santobello v. New York 404 U.S. 257 (1971); Wade v. United States, 112 S. Ct. 1840 (1992). Since such an agreement forecloses enforcement of the criminal law against a person who otherwise may be liable to prosecution, it should not be entered into without a clear understanding of the nature of the quid pro quo and a careful assessment of its probable value to the government. In order to be in a position adequately to assess the potential value of a person's cooperation, the prosecutor should insist on an "offer of proof' or its equivalent from the person or his/her attorney. The prosecutor can then weigh the offer in terms of the investi on or prosecution in connection with which cooperation is sought. In doing so, he/she should consider questions as whether the cooperation will in fact be forthcoming, whether the testimony or other information provided will be credible, whether it can be corroborated by other evidence, whether it will materially assist the investigation or prosecution, and whether substantially the same benefit can be obtained from someone else without an agreement not to prosecute. After assessing all of these factors, together with any others that may be relevant, the prosecutor can judge the strength of his/her case with and without the person's cooperation, and determine whether it may be in the public interest to agree to forego prosecution under the circumstances. http://www.usdoj.gov/usaokousa/foia_reading_room/usam/title9/27mcrm.htm 1/22/2007 EFTA00226404 USAM 9-27.000. Principles of Federal Prosecution Page 4 of 5 3. Relative Culpability and Criminal History. In determining whether it may be necessary to the public interest to agree to forego prosecution of a person who may have violated the law in return for that person's cooperation, it is also important to consider the degree of his/her apparent culpability relative to others who are subjects of the investigation or prosecution as well as his/her history of criminal involvement. Of course, ordinarily it would not be in the public interest to forego prosecution of a high-ranking member of a criminal enterprise in exchange for his/her cooperation against one of his/her subordinates, nor would the public interest be served by bargaining away the opportunity to prosecute a person with a long history of serious criminal involvement in order to obtain the conviction of someone else on less serious charges. These are matters with regard to which the attorney for the government may find it helpful to consult with the investigating agenc y or with other prosecuting authorities who may have an interest in the person or his/her associates. It is also important to consider whether the person has a background of cooperation with law enforcement officials, either as a witness or an informant, and whether he/she has previously been the subject of a compulsion order under 18 U.S.C. §?-6003 or has escaped prosecution by virtue of an agreement not to prosecute. The information regarding compulsion orders may be available by telephone from the Immunity Unit in the Office of Enforcement Operations of the Criminal Division. 9-27.630 Entering into Non-prosecution Agreements in Return for Cooperation — Limiting the Scope of Commitment A. In entering into a non-prosecution agreement, the attorney for the government should, if practicable, explicitly limit the scope of the government's commitment to: 1. Non-prosecution based directly or indirectly on the testimony or other information provided; or 2. Non-prosecution within his/her district with respect to a pending charge, or to a specific offense then known to have been committed by the person. B. Comment. The attorney for the government should exercise extreme caution to ensure that his/her non- prosecution agreement does not confer "blanket" immunity on the witness. To this end, he/she should, in the first instance, attempt to limit his/her agreement to non-prosecution based on the testimony or information provided. Such an "informal use immunity" agreement has two advantages over an agreement not to prosecute the person in connection with a particular transaction: first, it preserves the prosecutor's option to prosecute on the basis of independently obtained evidence if it later appears that the person's criminal involvement was more serious than it originally appeared to be; and second, it encourages the witness to be as forthright as possible since the more he/she reveals the more protection he/she will have against a future prosecution. To further encourage full disclosure by the witness, it should be made clear in the agreement that the government's forbearance from prosecution is conditioned upon the witness's testimony or production of information being complete and truthful, and that failure to testify truthfully may result in a perjury prosecution. Even if it is not practicable to obtain the desired cooperation pursuant to an "informal use immunity" agreement, the attorney for the government should attempt to limit the scope of the agreement in terms of the testimony and transactions covered, bearing in mind the possible effect of his/her agreement on prosecutions in other districts. It is important that non-prosecution agreements be drawn in terms that will not bind other Federal prosecutors or agencies without their consent. Thus, if practicable, the attorney for the government should explicitly limit the scope of his/her agreement to non-prosecution within his/her district. If such a limitation is not practicable and it can reasonably be anticipated that the agreement may affect prosecution of the person in other districts, the attorney for the government contemplating such an agreement shall communicate the relevant facts to the Assistant Attorney General with supervisory responsibility for the subject matter. United States Attorneys may not make agreements which prejudice civil or tax liability without the express agreement of all affected Divisions and/or agencies. See also 9- 16.000 et seq. for more information regarding plea agreements. http://www.usdoj.gov/usao/eousa/foia_reading_room/usarn/title9/27mcrtn.htm I /22/2007 EFTA00226405 USAM 9-27.000. Principles of Federal Prosecution Page 5 of 5 Finally, the attorney for the government should make it clear that his/her agreement relates only to non- prosecution and that he/she has no independent authority to promise that the witness will be admitted into the Department's Witness Security program or that the Marshal's Service will provide any benefits to the witness in exchange for his/her cooperation. This does not mean, of course, that the prosecutor should not cooperate in making arrangements with the Marshal's Service necessary for the protection of the witness in appropriate cases. The procedures to be followed in such cases are set forth in USAM 9-21.000. 9-27.640 Agreements Requiring Assistant Attorney General Approval A. The attorney for the government should not enter into a non-prosecution agreement in exchange for a person's cooperation without first obtaining the approval of the Assistant Attorney General with supervisory responsibility over the subject matter, or his/her designee, when: 1. Prior consultation or approval would be required by a statute or by Departmental policy for a declination of prosecution or dismissal of a charge with regard to which the agreement is to be made; or 2. The person is: a. A high-level Federal, state, or local official; b. An official or agent of a Federal investigative or law enforcement agency; or c. A person who otherwise is, or is likely to become of major public interest. B. Comment. USAM 9-27.640 sets forth special cases that require approval of non-prosecution agreements by the responsible Assistant Attorney General or his/her designee. Subparagraph (1) covers cases in which existing statutory provisions and departmental policies require that, with respect to certain types of offenses, the Attorney General or an Assistant Attorney General be consulted or give his/her approval before prosecution is declined or charges arc dismissed. For example, see USAM 6-4.245 (tax offenses); USAM 9-41.010 (bankruptcy frauds); USAM 9-90..020 (internal security offenses); (see USAM 9-2.400 for a complete listing of all prior approval and consultation requirements). An agreement not to prosecute resembles a declination of prosecution or the dismissal of a charge in that the end resu It in each case is similar: a person who has engaged in criminal activity is not prosecuted or is not prosecuted fully for his/her offense. Accordingly, attorneys for the government should obtain the approval of the appropriate Assistant Attorney General, or his/her designee, before agreeing not to prosecute in any case in which consultation or approval would be required for a declination of prosecution or dismissal of a charge. Subparagraph (2) sets forth other situations in which the attorney for the government should obtain the approval of an Assistant Attorney General, or his/her designee, of a proposed agreement not to prosecute in exchange for cooperation. Generally speaking, the situations described will be cases of an exceptional or extremely sensitive nature, or cases involving individuals or matters of major public interest. In a case covered by this provision that appears to be of an especially sensitive nature, the Assistant Attorney General should, in turn, consider whether it would be appropriate to notify the Attorney General or the Deputy Attorney General. http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/27mcrm.hun I /22/2007 EFTA00226406 PART V-IMMUNITY OF WITNESSES Chapter Section 601. Immunity of witnesses 6001 HISTORICAL AND STATUTORY NOTES 1970 Amendment Pub. L. 9r 2. Title § 201(a), Oct. 15, 1970. 84 Stat. 926, added V and items 6001 to 6005. CHAPTER 601-IMMUNITY OF WITNESSES Sec. 6001. Definitions. 6002. Immunity generally. 6003. Court and grand jury proceedings. 6004. Certain administrative proceedings. 6005. Congressional proceedings. HISTORICAL AND STATUTORY NOTES 1994 Amendments Pub.L. 103-322, Title )0()(III, § 330013(1), Sept. 13, 1994, 109 Stat. 2146, added chapter heading. § 6001. Definitions As used in this chapter— (1) "agency of the United States" means any executive department as defined in section 101 of title 5, United States Code, a military department as defined in section 102 of title 5, United States Code, the Nuclear Regulatory Commission, the Board of Governors of the Federal Reserve System, the China Trade Act registrar appointed under 53 •1. 432 (15 U.S.C. sec. 143), the Commodity Trading Commission, the Federal Commu- nications Commission, the Federal Deposit Insur- ance Corporation, the Federal Maritime Commis- sion, the Federal Power Commission, the Federal Trade Commission, the Surface Transportation Board, tt raNn:tional Labor Relations Board, the National portation Safety Board, the Railroad Retirement Board, an arbitration board established under 48 Stat. 1193 (45 U.S.C. sec. 157), the Securi- epi and Exchange Commission, or a board estab- sed under 49 Stat. 31 (15 U.S.C. sec. 715d); (2) "other information" includes any book, paper, document, record, recording, or other material; . (3) "proceeding before an agency of the United States" means any proceeding before such an agen- cy with respect to which it is authorized to issue subpenas and to take testimony or receive other ' information from witnesses under oath; and (4) "court of the United States" means any of the following courts: the Supreme Court of the United States, a United States court of appeals, a United States district court established under chapter 5, title 28, United States Code, a United States bank- ruptcy court established under chapter 6, title 28, United States Code, the District of Columbia Court of Appeals, the Superior Court of the District of Columbia, the District Court of Guam, the District Court of the Virgin Islands, the United States Court of Federal Claims, the Tax Court of the United States, the Court of International Trade, and the Court of Appeals for the Armed Forces. (Added Pub.L. 91-452, Title II, § 201(a), Oct. 15. 1970, 84 Stat 926, and amended Pub.L. 95-406, § 25. Sept 30, 1978, 92 Stat. 877; Pub.L. 95-598, Title III, § 314(I ), Nov. 6, 1978, 92 Stat. 2678; Pub.L. 96-417, Title VI, `§ 601(1), Oct. 10, 1980, 94 Stat. 1744; Pub.L. 97-164, Title 1, § 164(1), Apr. 2, 1982, 96 Stat. 50; Pub.L. 102-550. Title , § 1543, Oct. 28, 1992, 106 Stat. 4069; Pub.L. 102-572, Title DC, § 902(bX1), Oct. 29, 1992, 106 Stat 4519; Pub.L. 103-272, § 4(d), July 5, 1994, 108 Stat. 1361; Pub.L. 103-322, Title XXXIII, § 330013(2), (3). Sept- 13, 1994, 108 Stat 2146; Pub.L. 103-337, Div. A, Title IX, § 924(d)(1)1B), Oct. 5, 1994, 108 Stat. 2832; Pub.L. 104-88, Title III, § 303(2), Dec. 29, 1995, 109 Stat. 943.) HISTORICAL AND STATUTORY NOTES Effective and Applicability Provisions 1995 Acts. Amendment by Pub.L. 104-88 effective Jan. 1, 1996, see section 2 of Pub.L. 104-88, set out as a note under section 701 of Title 49, Transportation. 1992 Acts. Except as otherwise provided, amendment by Pub.L. 102-560 effective Oct 28, 1992, see section 2 of Pub.L. 102-650, set out 1S a note under section 5301 of Title 42, The Public Health and Welfare. 1982 Acts. Amendment by Pub.L. 97-164 effective Oct 1, 1982, see section 402 of Pub.L. 97-164, set out as an Effec- tive Date of 1982 Amendment note under section 171 of Title 28, Judiciary and Judicial A ()sedum. 1980 Acts. Amendment by Pub.L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub.L. 96-417, set out as an Effective Date of 1980 Amend- ment note under section 251 of Title 28, Judiciary and Judicial Procedure. 1978 Acts. Amendment by Pub.L. 95-698 effective Oct, 1, 1979, see section 402(a) of Pub.L. 95-598, set out as an Effective Dates note preceding section 101 of Title 11, Bank- ruptcy. Amendment by Pub.L. 95-405 effective Oct 1, 1978, see section 28 of Pub.L. 95-405, set out as an Effective Date of 1978 Amendment note under section 2 of Title 7. Agriculture. Complete Annotation Materials, an Title IS, U.S.CA. 1209 • EFTA00226407 18 * 6001 IMMUNITY OF WITNESSES Part 5 1970 Acts. Section 260 of Pub.L. 91-452 provided that: "The provisions of part V of title 18, United States Code, added by title II of this Act [this part], and the amendments and repeals made by title 11 of this Act [sections 835. 89i, 1406, 1954, 2424, 2514 and 3486 of this title, sections 16, 87( 13.5e, 499rn(f). and 2115 of Title 7, Agriculture. section 25 f former Title 11. Bankruptcy, section 1820 of Title 12, Banks and Banking. sections 32, 33, 49, 77v, 78u(d). 79r(e), 80a-41, 80b-9, 155, 717m, 1271. and 1714 of Title 15. Commerce and Trade, section srof of Title 16. Conservation, section 1333 of Title 19, Customs Duties, section 373 of Title 21, Food and Drugs. sections 4874 and 7493 of Title 26, Internal Revenue Code, section 161(3) of Title 29, Labor, section 506 of Title 33, Navigation and Navigable Waters, sections 405(0 and 2201 of Title 42, The Public Health and Welfare, sections 157 and 362 of Title 45, Railroads, sections 827 and 1124 of TStle 46, Shipping, section 409(1) of Tide 47, Telegraphs, Tele- phones, and Radiotelegraphs, sections 9, 43, 46, 47. 48, 916, and 1017 of former Title 49, Transportation, and section 1484 of Title 49, Appendix, section 792 of Title 50. War and National Defense, and sections 643a, 1152, 2026. and 2155(b) of Title 50, Appendix], shall take effect on the sixtieth day following the date of the enactment of this Act [Oct. IS, 1970). No amendment to or repeal of any provision of law under tide II of this Act shall affect any immunity to which any individual is entitled under such provision by reason of any testimony or other information given before such day." Change of Name References to United States Claims Court deemed to refer to United States Court of Federal Claims and references to Claims Court deemed to refer to Court of Federal Claims, see section 902(b) of Pub.L. 102-572, set out as a note under section 171 of Tide 28, Judiciary and Judicial Procedure. Savings Provisions Amendment by section 314 of Pub.L. 95-598 not to affect the application of chapter 9 [§ 151 et seq.], chapter 96 [§ 1961 et seq.], or section 2516, 3057, or 3284 of this title to any act of any person ( committed before Oct. 1, 1979, or (2) committed after Oct. 1. 1979, in connection with a Case commenced before such date, see section 403(d) of Pub.L. 95-598, set out preceding section 101 of Title 11, Bankruptcy. Amendment or Repeal of Inconsistent Provisions Section 2.59 of Pub.L. 91-452 provided that "In addition to the provisions of law specifically amended or specifically repealed by this title [see Effective Date note set out under this section], any other provision of law inconsistent with the provisions of part V of title 18, United States Code (added by tide II of this Act) [this part], is to that extent amended or repealed." Abolition of the Atomic Energy Commission The Atomic Energy Commission was abolished and all functions were transferred to the Administrator of the Ener- gy Research and Development Administration (unless other- wise specifically provided) by section 5814 of Title 42, The Public Health and Welfare. The Energy Research and Development Administration was tenninated and functions vested by law in the Administrator thereof were transferred to the Secretary of Energy (unless otherwise specifically provided) by sections 7151(a) and 7293 of Title 42. Termination of Civil Aeronautics Board and Transfer of Certain Functior All functions, wins, and duties of the Civil Aeronautics Board were terminated or transferred by former section 1551 of Title 49, Transportation, effective in part on ec. 31, 1981, in part on Jan. I. 1983, and in part on Jan. , 198.5. Termination of Federal Power Commission The Federal Power Commission, referred to in par. (1) was terminated and the functions, personnel, property, funds, etc.. thereof were transferred to the Secretary of Energy (except for certain functions which were transferred to the Federal Energy Regulatory Commission) by sections 7151(6), 7171(a). 7172(a). 7291, and 7293 of Title 42, The Public Health and Welfare. Subversive Activities Control Board The Subversive Activities Control Board was established by Act Sept. 23. 1950. c. 1024, § 12, 64 Stat. 997, and ceased to operate June 30. 1973. § 6002. Immunity generally Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or pro- vide other information in a proceeding before or ancil- lary to— (1) a court or grand jury of the United States, (2) an agency of the United States, or (3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommit- tee of either House, and the person presiding over the proceeding commu- nicates to the witness an order issued under this title, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled un- der the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false state- ment, or otherwise failing to comply with the order. (Added Pub.L. 91-452, Title if, § 201(a), Oct. 16, 1970, 84 Stat. 927, and amended Pub.L. 103-322, Title XXXIii, § 330013(4), Sept. 13, 1994, 108 Stat 2146.) § 6003. Court and grand jury proceedings (a) in the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States or a grand jury of the United States, the United States district court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he re- fuses to give or provide on the basis of his privilege against self-incrimination, such order to become effec- tive as provided in section 6002 of this title. Complete Annotation Matedals, see Thls 1% u.s.c.a. 1210 EFTA00226408 Ch. 601 IMMUNITY OF WITNESSES 18 § 6005 (h) A I hilted States attorney may, with the approv- al of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any des- ignated Assistant Attorney General or Deputy Assis- tant Attorney General, request an order under subsec- tion (a) of this section when in his judgment— (1) the testimony or other information from such individual may be necessary to the public interest; and (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination. (Added Pub.L. 91-452, Title ll, ¢ 201(a), Oct. 15, 1970, 84 Stat 927, and amended Pub.L. 100-690. Title VII. 5 7020(e), Nov. 18, 1988, 102 Stat. 4396; Pub.L. 103-322, Title XXXIII, § 330013(4), Sept. 13, 1994. 108 Stat. 2146.) § 6004. Certain administrative proceedings (a) In the case of any individual who has been or who may be called to testify or provide other informa- tion at any proceeding before an agency of the United States, the agency may, with the approval of the Attorney General, issue, in accordance with subsection (b) of this section, an order requiring the individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effec- tive as provided in section 6002 of this title. (b) An agency of the United States may issue an order under subsection (a) of this section only if in its judgment— (1) the testimony or other information from such individual may be necessary to the public interest; and (2) such individual has refused or Ls likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination. (Added Pub.L. 91-452, Title IL § 201(a), Oct. 15, 1970, 84 Stat 927, and amended Pub.L. 103-3tZ, Title 330013(4), Sept. 13, 1994, 108 Stat. 2146.) § 6005. Congressional proceedings (a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to either House of Congress, or any committee, or any subcommittee of either House, or any joint committee of the two Houses, a United States district court shall issue, in accordance with subsection (b) of this section, upon the request of a duly authorized representative of the House of Congress or the committee concerned, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self- incrimination, such order to become effective as pro- vided in section 6002 of this title. (b) Before issuing an order under subsection (a) of this section, a United States district court shall find that— (1) in the case of a proceeding before or ancillary to either House of Congress, the request for such an order has been approved by an affirmative vote of a majority of the Members present of that House; (2) in the case of a proceeding before or ancillary to a committee or a subcommittee of either House of Congress or a joint committee of both Houses, the request for such an order has been approved by an affirmative vote of two-thirds of the members of the full committee; and (3) ten days or more prior to the day on which the request for such an order was made, the Attor- ney General was served with notice of an intention to request the order. (c) Upon application of the Attorney General, the United States district court shall defer the issuance of any order under subsection (a) of this section for such period, not longer than twenty days from the date of the request for such order, as the Attorney General may specify. (Added Pub.L. 61-452, Title II, 1201(a), Oct. 15, 1970, 84 Stat. 928, and amended Pub.L. 103-322, Title XXXIII, § 330013(4), Sept 13, 1994, 108 Stat 2146; Pub.L. 104-292, § 5, Oct. 11, 1996, 110 Stat 3460; Pub.L. 104-294, Title VI, 605(0), Oct. 11, 1996, 110 Stat. 3510.) Complete Annotation Materials, see Title 18, U.S.C.A. 1211 EFTA00226409 United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-24 SUBPOENA FOR: PERSON X DOCUMENTS OR OBJECT'S] YOU ARE HEREBY COMMANDED to appear and testify before the G rand J ury of th e Un ited States Di strict Court at the place, date and time specified below. PLACE: United States District Courthouse 701 Clematis Street Wcst Palm Beach, Florida 33401 ROOM: Grand Jury Room DATE AND TIME: December 1, 2006 9:30 am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Any and all records related to your employment with Jeffrey Epstein, including but not limited to paystubs, W-2 forms, correspondence, employment applications, and employment reviews. Any and all information regarding methods to contact Jeffrey Epstein directly or via any secretaries/assistants from 1/112004 to the present, including but not limited to, telephone numbers, cellular telephone numbers, Blackberry addresses, e-mail addresses, and mailing addresses. Any and all information regarding appointments for massages performed on Jeffrey Epstein in Palm Beach, Florida or elsewhere. ilt Please coordinate your compliance ' • d confirm the date and time , and location of your appearance with Special Agent Federal Bureau of Investigation, Telephone: (561) 822-5946. This subpoena shall remain in effect until you are granted leave to depart by the court or by an officer acting on behalf of the court. This subpoena is issued upon application Namc Address and P Attorney 5 •[ not applicable, enter 'none' To be mai stag a A OR -227 JAN.86 Case No. 08-80736-CV-MARRA P-000213 EFTA00226410 RETURN OF SERVICE' RECEIVED BY SERVER DATE PLACE SERVED DATE PLACE SERVED ON (NAME) SERVED BY TITLE STATEMENT OF SERVICE FEES TRAVEL SERVICES TOTAL DECLARATION OF SERVICE' I declare under penalty of perjury under the laws of the United States of America Mal the foregoing information contained in the Return of Service and Statement of Service Fees is true and correct. Executed on DATE Signature of Server Address of Server ADDITIONAL INFORMATION lAs to who may serve a subpoena and the manner of Its service see Rule 17(d). Federal Rules of Criminal Procedure, or Rule 45(c), Federal Rules of CNII Procedure. 2."Fees and mileage need not be tendered to the witness upon service of a subpoena Issued on behalf of the United States or an officer or agency thereof (Rule 45(c), Federal Rules of Civil Procedure; Rule 17(d), Federal Rules of Criminal Procedure) or on behalf of certain Indigent parties and criminal defendants who are unable to pay such costs (28 USC 1825, Rule 17(b) Federal Rules of Criminal Procedure)" Case No. 08-80736-CV-MARRA P-000214 EFTA00226411 United States SOUTHERN DISTRICT TO: YOU ARE HEREBY COMMANDED to appear Court at the place, date and time specified below. SUBPOENA District OF PERSON testify Court FLORIDA SUBPOENA BEFORE GRAND Fall 05-02(WPB)-Fri./No. FOR: r xi DOCUMENTS TO TESTIFY JURY OLY-24 OR OBJECT [S Jury of the United States District I X i and before the Grand PLACE: United States District Courthouse 701 Clematis Street West Palm Beach, Florida 33401 ROOM: Grand Jury Room DATE AND TIME: December 1, 2006 9:30 am YOU ARE ALSO COMMANDED to bring with you the following Any and all records related to your employment with Jeffrey paystubs, W-2 forms, correspondence, employment applications, information regarding methods to contact Jeffrey Epstein directly 1/1/2004 to the present, including but not limited to, telephone Blackberry addresses, e-mail addresses, and mailing addresses. appointments for massages performed on Jeffrey Epstein Please coordinate your compliance liiiii d your appearance with Special Agent IIIIII, (561) 822-5946. This subpoena shall remain in effect until you are granted leave on behalf of the court. document(s) Epstein, and employment or via any numbers, Any and in Palm Beach, confirm the date Federal Bureau to depart by the or object(s): including but not limited to reviews. Any and all secretaries/assistants from cellular telephone numbers, all information regarding Florida or elsewhere. and time , and location of of Investigation, Telephone: court or by an officer acting • etspitij. CLERK •-• Ool t 0 i i 4 S.: DATE: November 13, 2006 (BY) DEPUTY CLERJC This subpoena is issued upon application of the U ' dStat f Ame ' Name, Address and Phone Number of Assistant U.S. Attorney 'If 'nom' boa of A0110 FORM ORD-227 JAN.86 P-000216 not applicable. alto To bnemele Casc No. 08-80736-CV-MARRA EFTA00226412 United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-24-2 SUBPOENA FOR: PERSON X X DOCUMENTS OR OBJECT'S] YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. • PLACE: United States District Courthouse 701 Clematis Street West Palm Beach, Florida 33401 ROOM: Grand Jury Room DATE AND TIME: January 12, 2007 9:30 am• YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Any and all records related to your employment with Jeffrey Epstein, including but not limited to paystubs, W-2 forms, correspondence, employment applications, and employment reviews. Any and all information regarding methods to contact Jeffrey Epstein directly or via any secretaries/assistants from 1/1/2004 to the present, including but not limited to, telephone numbers, cellular telephone numbers, Blackberry addresses, e-mail addresses, and mailing addresses. Any and all information regarding appointments for massages performed on Jeffrey Epstein in Palm Beach, Florida or elsewhere. *Please coordinate your compliance .* • nd confirm the date and time, and location of your appearance with Special Agent , Federal Bureau of Investigation, Telephone: (561) 822-5946. This subpoena shall remain in effect until you are granted leave to depart by the court or by an officer acting on behalf of the court. CLERK (BY) DEPUTY CLERK DATE: December 18, 2006 This subpoena is issued upon application of the United States of America •Knot applicable. enter "none.` Name, Address and Phone Number of Assistant U.S. Attorney To beryl .r.. o(A0110 FORM ORD-227 JAN.86 Case No. 08-80736-CV-MARRA P-000219 EFTA00226413 LAW OFFICES LYONS AND SANDERS CHARTERED DALE R. SANDERS • BRUCE M. LYONS •• HOWARD L. ORCITZER COWARD 0. MERGER 4195P-I9417) 'ea° women° IN WYOMING • ALSO ADMITTED IN COLORADO February 14, 2007 600 NORTHEAST .3"17 AVENUE FORT LAUDIIILDAI.S. FLORIDA 3300.1 TELEPHONE 1954) 467-0700 TELEFAX (984) 763-4056 MAILING ADDRESS P. O. SOX 1778 FORT LAUDERDALE, FL 33302-1776 Re: Adrian Ross Grand Jury Subpoena Dear Ms. Villafana: indicate Fifth Amendment extended. You request and that formal grant of January 25, 2007, IIIIIIIIIIIIIIIlland with a grand jury subpoena for my to appear on February 13, 2007. I ss would assert her rights under the and on consent, the appearance has been have asked me to set out the basis for my you apply through appropriate channels for a use immunity for . I do so here. As I indicated to you when we conversed last week, is no longer employed by Mr. Epstein, but has read much o w at can be found on the Internet about the investigation of Mr. Epstein. From that review, she is aware that the police considered charging several persons close to Mr. Epstein, including at least one employee. Given that, and the seemingly broad scope of the investigation, Ms. Ross asserts her rights under the Fifth Amendment. Indeed, considering that both the state authorities in Palm Beach County and your office are conducting investigations, there is every reason for her to be concerned and therefore to assert her constitutional rights. If you continue to want her to appear before a grand jury, be advised that she will assert Case No. 08-80736-CV-MARRA P-000220 EFTA00226414 her rights under the Fifth Amendment unless there is a formal grant of immunity. If you should have any questions regarding the above, please feel free to contact me. Very truly your UCE M. LYONS BML/md d 2 Case No. 08-80736-CV-MARRA P-000221 EFTA00226415 USAM 9-27.000. Principles of Federal Prosecution 9-27.600 Entering into Non-prosecution Agreements in Return for Cooperation — Generally A. Except as hereafter provided, the attorney for the government may, with supervisory approval, enter into a non- prosecution agreement in exchange for a person's cooperation when, in his/her judgment, the person's timely cooperation appears to be necessary to the public interest and other means of obtaining the desired cooperation arc unavailable or would not be effective. B. Comment. Pagc 1 of 5 1. In many cases, it may be important to the success of an investigation or prosecution to obtain the testimonial or other cooperation of a person who is himself/herself implicated in the criminal conduct being investigated or prosecuted. However, because of his/her involvement, the person may refuse to cooperate on the basis of his/her Fifth Amendment privilege against compulsory self-incrimination. In this situation, there are several possible approaches the prosecutor can take to render the privilege inapplicable or to induce its waiver. a. First, if time permits, the person may be charged, tried, and convicted before his/her cooperation is sought in the investigation or prosecution of others. Having already been convicted himself/herself, the person ordinarily will no longer have a valid privilege to refuse to testify and will have a strong incentive to reveal the truth in order to induce the sentencing judge to impose a lesser sentence than that which otherwise might be found appropriate. b. Second, the person may be willing to cooperate if the charges or potential charge against him/her are reduced in number or degree in return for his/her cooperation and his/her entry of a guilty plea to the remaining charges. An agreement to file a motion pursuant to Sentencing Guideline 5K1.1 or Rule 35 of the Federal Rules of Criminal Procedure after the defendant gives full and complete cooperation is the preferred method for securing such cooperation. Usually such a concession by the government will be all that is necessary, or warranted, to secure the cooperation sought. Since it is certainly desirable as a matter of policy that an offender be required to incur at least some liability for his/her criminal conduct, government attorneys should attempt to secure this result in all appropriate cases, following the principles set forth in USAM 9-27.430 to the extent practicable. c. The third method for securing the cooperation of a potential defendant is by means of a court order under 18 U.S.C. §§ 6001:6003. Those statutory provisions govern the conditions under which uncooperative witnesses may be compelled to testify or provide information notwithstanding their invocation of the privilege against compulsory self incrimination. In brief, under the so-called "use immunity" provisions of those statutes, the court may order the person to testi& or provide other information, but neither his/her testimony nor the information he/she provides may be used against him/her, directly or indirectly, in any criminal case except a prosecution for perjury or other failure to comply with the order. Ordinarily, these "use immunity" provisions should be relied on in cases in which attorneys for the government need to obtain sworn testimony or the production of information before a grand jury or at trial, and in which there is reason to believe that the person will refuse to testify or provide the information on the basis of his/her privilege against compulsory self- incrimination. See usimo 9-23,a Offers of immunity and immunity agreements should be in writing. Consideration should be given to documenting the evidence available prior to the immunity offer. d. Finally, there may be cases in which it is impossible or impractical to employ the methods described above to secure the necessary information or other assistance, and in which the person is willing to cooperate only in return for an agreement that he/she will not be prosecuted at all for what he/she has done. The provisions set forth hereafter describe the conditions that should be met before such an agreement is made, as well as the procedures recommended for such cases. Exhibit 15 littp://www.usdoj.gov/usao/eousaffoia_reading_room/usam/title9/27mcmhtm 1/22/2007 EFTA00226416 USAM 9-27.000. Principles of Federal Prosecution Page 2 of 5 It is important to note that these provisions apply only if the case involves an agreement with a person who might otherwise be prosecuted. If the person reasonably is viewed only as a potential witness rather than a potential defendant, and the person is willing to cooperate, there is no need to consult these provisions. IJSAM 9-27.6A describes three circumstances that should exist before government attorneys enter into non-prosecution agreements in return for cooperation: the unavailability or ineffectiveness of other means of obtaining the desired cooperation; the apparent necessity of the cooperation to the public interest; and the approval of such a course of action by an appropriate supervisory official 2. Unavailability or Ineffectiveness of Other Means. As indicated above, non-prosecution agreements are only one of several methods by which the prosecutor can obtain the cooperation of a person whose criminal involvement makes him/her a potential subject of prosecution. Each of the other methods--seeking cooperation after trial and conviction, bargaining for cooperation as part of a plea agreement, and compelling cooperation under a "use immunity" order--involves prosecuting the person or at least leaving open the possibility of prosecuting him/her on the basis of independently obtained evidence. Since these outcomes are clearly preferable to permitting an offender to avoid any liability for his/her conduct, the possible use of an alternative to a non-prosecution agreement should be given serious consideration in the first instance. Another reason for using an alternative to a non-prosecution agreement to obtain cooperation concerns the practical advantage in terms of the person's credibility if he/she testifies at trial. If the person already has been convicted, tither after trial or upon a guilty plea, for participating in the events about which he/she testifies, his/her testimony is apt to be far more credible than if it appears to the trier of fact that he/she is getting off "scot free." Similarly, if his/her testimony is compelled by a court order, he/she cannot properly be portrayed by the defense as a person who has made a "deal" with the government and whose testimony is, therefore, suspect; his/her testimony will have been forced from hint/her, not bargained for. In some cases, however, there may be no effective means of obtaining the person's timely cooperation short of entering into a non-prosecution agreement. The person may be unwilling to cooperate fully in return for a reduction of charges, the delay involved in bringing him/her to trial might prejudice the investigation or prosecution in connection with which his/her cooperation is sought and it may be impossible or impractical to rely on the statutory provisions for compulsion of testimony or production of evidence. One example of the latter situation is a case in which the cooperation needed does not consist of testimony under oath or the production of information before a grand jury or at trial. Other examples are cases in which time is critical, or where use of the procedures of 18 U.S.C. §?-6003 would unreasonably disrupt the presentation of evidence to the grand jury or the expeditious development of an investigation, or where compliance with the statute of limitat ions or the Speedy Trial Act precludes timely application for a court order. Only when it appears that the person's timely cooperation cannot be obtained by other means, or cannot be obtained effectively, should the attorney for the government consider entering into a non-prosecution agreement. 3. Public Interest. If he/she concludes that a non-prosecution agreement would be the only effective method for obtaining cooperation, the attorney for the government should consider whether, balancing the cost of foregoing prosecution against the potential benefit of the person's cooperation, the cooperation sought appears necessary to the public interest. This "public interest" determination is one of the conditions precedent to an application under I8 U.S.C. § 6003 for a court order compelling testimony. Like a compulsion order, a non-prosecution agreement limits the government's ability to undertake a subsequent prosecution of the witness. Accordingly, the same "public interest" test should be applied in this situation as well. Some of the considerations that may be relevant to the application of this test are set forth in USAM 9-27.620. http://www.usdoj.gov/usao/eousa/foia_reading_roorn/usam/title9/27mcrm.htm I /22/2007 EFTA00226417 USAM 9-27.000. Principles of Federal Prosecution Page 3 of 5 4. Supervisory Approval. Finally, the prosecutor should secure supervisory approval before entering into a non-prosecution agreement. Prosecutors working under the direction of a United States Attorney must seek the approval of the United States Attorney or a supervisory Assistant United States Attorney. Departmental attorneys not supervised by a United States Attorney should obtain the approval of the appropriate Assistant Attorney General or his/her designee, and should notify the United States Attorney or Attorneys concerned. The requirement of approval by a superior is designed to provide review by an attorney experienced in such matters, and to ensure uniformity of policy and practice with respect to such agreements. This section should be read in conjunction with USAM 9-27.640, concerning particular types of cases in which an Assistant Attorney General or his/her designee must concur in or approve an agreement not to prosecute in ret urn for cooperation. 9-27.620 Entering into Non-prosecution Agreements in Return for Cooperation — Considerations to be Weighed A. In determining whether, a person's cooperation may be necessary to the public interest, the attorney for the government, and those whose approval is necessary, should weigh all relevant considerations, including: 1. The importance of the investigation or prosecution to an effective program of law enforcement; 2. The value of the person's cooperation to the investigation or prosecution; and 3. The person's relative culpability in connection with the offense or offenses being investigated or prosecuted and his/her history with respect to criminal activity. B. Comment. This paragraph is intended to assist Federal prosecutors, and those whose approval they must secure, in deciding whether a person's cooperation appears to be necessary to the public interest. The considerations listed here are not intended to be all-inclusive or to require a particular decision in a particular case. Rather they are meant to focus the decision-makers attention on factors that probably will be controlling in the majority of cases. 1. Importance of Case. Since the primary function of a Federal prosecutor is to enforce the criminal law, he/she should not routinely or indiscriminately enter into non-prosecution agreements, which are, in essence, agreements not to enforce the law under particular conditions. Rather, he/she should reserve the use of such agreements for cases in which the cooperation sought concerns the commission of a serious offense or in which successful prosecution is otherwise important in achieving effective enforcement of the criminal laws. The relative importance or unimportance of the contemplated case is therefore a significant threshold consideration. 2. Value of Cooperation. An agreement not to prosecute in return for a person's cooperation binds the government to the extent that the person carries out his/her part of the bargain. See Santobello v. New York 404 U.S. 257 (1971); Wade v. United States, 112 S. Ct. 1840 (1992). Since such an agreement forecloses enforcement of the criminal law against a person who otherwise may be liable to prosecution, it should not be entered into without a clear understanding of the nature of the quid pm quo and a careful assessment of its probable value to the government. In order to be in a position adequately to assess the potential value of a person's cooperation, the prosecutor should insist on an "offer of proof' or its equivalent from the person or his/her attorney. The prosecutor can then weigh the offer in terms of the investigation or prosecution in connection with which cooperation is sought. In doing so, he/she should consider such questions as whether the cooperation will in fact be forthcoming, whether the testimony or other information provided will be credible, whether it can be corroborated by other evidence, whether it will materially assist the investigation or prosecution, and whether substantially the same benefit can be obtained from someone else without an agreement not to prosecute. After assessing all of these factors, together with any others that may be relevant, the prosecutor can judge the strength of his/her case with and without the person's cooperation, and determine whether it may be in the public interest to agree to forego prosecution under the circumstances. http://www.usdoj.govhisao/cousaabia_reading_roonilusain/title9/27mcrm.htm 1/22/2007 EFTA00226418 USAM 9-27.000. Principles of Federal Prosecution Page 4 of 5 3. Relative Culpability and Criminal History. In determining whether it may be necessary to the public interest to agree to forego prosecution of a person who may have violated the law in return for that person's cooperation, it is also important to consider the degree of his/her apparent culpability relative to others who are subjects of the investigation or prosecution as well as his/her history of criminal involvement. Of course, ordinarily it would not be in the public interest to forego prosecution of a high-ranking member of a criminal enterprise in exchange for his/her cooperation against one of his/her subordinates, nor would the public interest be served by bargaining away the opportunity to prosecute a person with a long history of serious criminal involvement in order to obtain the conviction of someone else on less serious charges. These are matters with regard to which the attorney for the government may find it helpful to consult with the investigating agenc y or with other prosecuting authorities who may have an interest in the person or his/her associates. It is also important to consider whether the person has a background of cooperation with law enforcement officials, either as a witness or an informant, and whether he/she has previously been the subject of a compulsion order under 18 U.S.C. §?-6003 or has escaped prosecution by virtue of an agreement not to prosecute. The information regarding compulsion orders may be available by telephone from the Immunity Unit in the Office of Enforcement Operations of the Criminal Division. 9-27.630 Entering into Non-prosecution Agreements in Return for Cooperation — Limiting the Scope of Commitment A. In entering into a non-prosecution agreement, the attorney for the government should, if practicable, explicitly limit the scope of the government's commitment to: 1. Non-prosecution based directly or indirectly on the testimony or other information provided; or 2. Non-prosecution within his/her district with respect to a pending charge, or to a specific offense then known to have been committed by the person. B. Comment. The attorney for the government should exercise extreme caution to ensure that his/her non- prosecution agreement does not confer "blanket" immunity on the witness. To this end, he/she should, in the first instance, attempt to limit his/her agreement to non-prosecution based on the testimony or information provided. Such an "informal use immunity" agreement has two advantages over an agreement not to prosecute the person in connection with a particular transaction: first, it preserves the prosecutor's option to prosecute on the basis of independently obtained evidence if it later appears that the person's criminal involvement was more serious than it originally appeared to be; and second, it encourages the witness to be as forthright as possible since the more he/she reveals the more protection he/she will have against a future prosecution. To further encourage full disclosure by the witness, it should be made clear in the agreement that the government's forbearance from prosecution is conditioned upon the witness's testimony or production of information being complete and truthful, and that failure to testify truthfully may result in a perjury prosecution. Even if it is not practicable to obtain the desired cooperation pursuant to an "informal use immunity" agreement, the attorney for the government should attempt to limit the scope of the agreement in terms of the testimony and transactions covered, bearing in mind the possible effect of his/her agreement on prosecutions in other districts. It is important that non-prosecution agreements be drawn in terms that will not bind other Federal prosecutors or agencies without their consent. Thus, if practicable, the attorney for the government should explicitly limit the scope of his/her agreement to non-prosecution within his/her district. If such a limitation is not practicable and it can reasonably be anticipated that the agreement may affect prosecution of the person in other districts, the attorney for the government contemplating such an agreement shall communicate the relevant facts to the Assistant Attorney General with supervisory responsibility for the subject matter. United States Attorneys may not make agreements which prejudice civil or tax liability without the express agreement of all affected Divisions and/or agencies. See also 9- 16.000 et seq. for more information regarding plea agreements. lutp://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/27mcrm.htm 1/22/2007 EFTA00226419 USAM 9-27.000. Principles of Federal Prosecution Page 5 of 5 Finally, the attorney for the government should make it clear that his/her agreement relates only to non- prosecution and that he/she has no independent authority to promise that the witness will he admitted into the Department's Witness Security program or that the Marshal's Service will provide any benefits to the witness in exchange for his/her cooperation. This does not mean, of course, that the prosecutor should not cooperate in making arrangements with the Marshal's Service necessary for the protection of the witness in appropriate cases. The procedures to be followed in such cases are set forth in USAM9-21.000. 9-27.640 Agreements Requiring Assistant Attorney General Approval A. The attorney for the government should not enter into a non-prosecution agreement in exchange for a person's cooperation without first obtaining the approval of the Assistant Attorney General with supervisory responsibility over the subject matter, or his/her designee, when: 1. Prior consultation or approval would be required by a statute or by Departmental policy for a declination of prosecution or dismissal of a charge with regard to which the agreement is to be made; or 2. The person is: a. A high-level Federal, state, or local official; b. An official or agent of a Federal investigative or law enforcement agency; or c. A person who otherwise is, or is likely to become of major public interest. B. Comment. USAM 9-27.640 sets forth special cases that require approval of non-prosecution agreements by the responsible Assistant Attorney General or his/her designee. Subparagrc ph (1) covers cases in which existing statutory provisions and departmental policies require that, with respe to certain types of offenses, the Attorney General or an Assistant Attorney General be consulted or give his/her approval before prosecution is declined or charges arc dismissed. For example, see USAM 64245 (tax offenses); USAM 941.010 (bankruptcy frauds); USAM 9-90,020 (internal security offenses); (see USAM_9-2.400 for a complete listing of all prior approval and consultation requirements). An agreement not to prosecute resembles a declination of prosecution or the dismissal of a charge in that the end resu It in each case is similar: a person who has engaged in criminal activity is not prosecuted or is not prosecuted fully for his/her offense. Accordingly, attorneys for the government should obtain the approval of the appropriate Assistant Attorney General, or his/her designee, before agreeing not to prosecute in any case in which consultation or approval would be required for a declination of prosecution or dismissal of a charge. Subparagraph (2) sets forth other situations in which the attorney for the government should obtain the approval of an Assistant Attorney General, or his/her designee, of a proposed agreement not to prosecute in exchange for cooperation. Generally speaking, the situations described will be cases of an exceptional or extremely sensitive nature, or cases involving individuals or matters of major public interest. In a case covered by this provision that appears to be of an especially sensitive nature, the Assistant Attorney General should, in turn, consider whether it would be appropriate to notify the Attorney General or the Deputy Attorney General. http://vvww.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/27mcrm.htm I /22/2007 EFTA00226420 PART V-IMMUNITY OF WITNESSES Chapter Section 601. Immunity of witnesses 6001 Sec. 6001. 6002 6003. 6004. 0005. IIISTORICAL AND STATUTORY NOTES 1994 Amendments Pub.L. 103-322, Title XXXIII, I 330013(1), Sept. 13, 1994, 108 Stat. 2146, added chapter heading. § 6001. Definitions As used in this chapter— (1) "agency of the United States" means any executive department as defined in section 101 of title 5, United States Code, a military department as defined in section 102 of title 5, United States Code, the Nuclear Regulatory Commission, the Board of Governors of the Federal Reserve System, the China Trade Act registrar appointed under 53 • Stat. 1432 (15 U.S.C. sec. 143), the Commodity • Futures Trading Commission, the Federal Commu- nications Commission, the Federal Deposit Insur- ance Corporation, the Federal Maritime Commis- sion, the Federal Power Commission, the Federal • -- Trade Commission, the Surface Transportation .1 -Board, the National Labor Relations Board, the ' National Transportation Safety Board, the Railroad Retirement ard, an arbitration board established under 48 Sta 1193 (45 U.S.C. sec. 1571 the Securi- ties i and Exc ange Commission, or a board estab- lished under 49 Stet 31 (15 U.S.C. sec. 715d); . (2) "other information" includes any book, paper, document, record, recording, or other material; (3) "proceeding before an agency of the United States" means any proceeding before such an agen- cy with respect to which it is authorized to issue subpenas and to take testimony or receive other • information from witnesses under oath; and (4) "court of the United States" means any of the - following courts: the Supreme Court of the United States, a United States court of appeals, a United States district court established under chapter 5, title 28, United States Code, a United States bank- HISTORICAL AND STATUTORY NOTES 1910 Amendment Publ.. 91-152, Title II, 6 201(a), Oct. 15. 1970, 84 Stat. 926, added Part V and items 6001 to 6005. CHAPTER 601-IMMUNITY OF WITNESSES Definitions. Immunity generally. Court and grand jury proceedings. Certain administrative proceedings. Congressional proceedings. ruptcy court established under chapter 6, title 28, United States Code, the District of Columbia Court of Appeals, the Superior Court of the District of Columbia, the District Court of Guam, the District Court of the Virgin Islands, the United States Court of Federal Claims, the Tax Court of the United States, the Court of International Trade, and the Court of Appeals for the Armed Forces. (Added Publ. 91-452, Title II, § 201(a), Oct. 15, 1970, 84 Stat. 926, and amended Pub.L. 95-405, 6 25, Sept. 30, 1978, 92 Stat. 877; Pub.L. 95-598, Title III, § 314(l ), Nov. 6, 1978, 92 Stat. 2678; Pub.L. 96-417, Title VI, € 601(1), Oct. 10, 1980, 94 Stat. 1744; Pub.L. 97-164, 7Stle I, I 164(1), Apr. 2, 1982, 96 Stat. 50; Pub.L. 102-550, Title XV, § 1543, Oct. 28, 1992, 106 Stat. 4069; Pub.L. 102—572, Title IX, § 902(bRI), Oct. 29, 1992, 106 Stat. 4519; Pub.L. 103-272, § 4(d), July 5, 1994, 108 Stat. 1361; Pub.L. 103-322 Title XXXIII, § 330013(2). (3), Sept 13, 1994, 108 Stat. 2146; Pub.L. 103-337, Div. A, Title IX, I 924(d)(1)(B), Oct. 5, 1994, 108 Stat. 2832; Publ.. 10448, Title III, § 303(2), Dec. 29, 1995, 109 Stat 913.) HISTORICAL AND STATUTORY NOTES Effective and Applicability Provisions 1995 Acta Amend y Pub.L. 104-88 effective Jan. 1. i t 1996, see section 2 of . 104-88, set out as a note under section 701 of Title 49, portation. 1992 Acts. Except as otherwise provided, amendment by Pub.L. 107450 effective Oct. 28, 1992, see section 2 of Pub.L. 102450, set out as a note under section 6301 of Title 42, The Public Health and Welfare. 1982 Acts. Amendment by Pub.L. 97-164 effective Oct 1, 1982, see section 402 of Pub.L. 97-164, set out as an Effec- the Date of 1982 Amendment note under section 171 of Title 28, Judiciary and Judicial Procedure. 1980 Acts. Amendment by Pub.L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub.L. 96-417, set out as an Effective Date of 1980 Amend- ment note under section 251 of Title 28, Judiciary and Judicial Procedure. 1978 Acts. Amendment by Pub.L. 95-598 effective Oct. 1, 1979, see section 402(a) of Pub.L. 95-498, set out as an Effective Dates note preceding section 101 of Title 11, Bank- ruptcy. Amendment by Pub.L. 95-405 effective Oct. 1, 1978, see section 28 of Pub.L. 95-405, set out as an Effective Date of 1978 Amendment note under section 2 of Title 7, Agriculture. Compton, Annotation Materials, an 7111a is, U.S.C.A. 1209 EFTA00226421 18 § 6001 IMMUNITY OF WITNESSES Part 5 1970 Acts. Section 2 of Pub.L. 91-452 provided that: 6) "The provisions o part of title 18, United States Code, 1b added by title II o this t [this part], and the amendments and repeals made y title II of this Act [sections 835, 895, 1406, 1954, 2424, 2514 and 3486 of this title, sections 15, 87(0. 135e, 499m(1). and 2135 of Title 7, Agriculture, section 25 of former Title II, Bankruptcy, sectio 1820 of Title 12, Banks it and Banking, sections 32, 33, 49, 77 78u(d), 79r(e), 80a-4t, 80b-9, 155, 717m. 1271, and 1714 of Ile 15, Commerce and Trade, section 825f of Title 16. Conservation, section 1333 of Title 19, Customs Duties, section 373 of Title 21, Food and Drugs, sections 4874 and 7493 of Title 26, Internal Revenue Code, section 161(3) of Title 29, Labor, section 506 of Tide 33, Nsfigation and Navigable Waters, sections 405(0 and 2201 Title 42, The Public Health and Welfare, sections 157 and of Title 45, Railroads, sections 827 and 1124 of Title 46, Shipping, section 409(1 ) of Title 47, Telegraphs, Tele- phones, and Radiotelegraphs, sections 9, 43, 46, 47, 48, 916, and 1017 of former Title 49, Transportation, and section 1484 of Title 49, Appendix, section 792 of Title 50, War and National Defense, and sections 643a, 1152, 2026, and 2155(b) of Title 50, Appendix), shall take effect on the sixtieth day following the date of the enactment of this Act (Oct. 15, 1970). No amendment to or repeal of any provision of law under tide II of this Act shall affect any immunity to which any individual is entitled under such provision by reason of any testimony or other information given before such day." Change of Name References to United States Claims Court deemed to refer to United States Court of Federal Claims and references to Claims Court deemed to refer to Court of Federal Claims, see section 902(b) of Pub.L. 102-572, set out as a note under section 171 of Title 28. Judiciary. and Judicial Procedure. Savings Provisions Amendment by section 314 of Pub.L. 95-598 not to affect the application of chapter 9 [6 151 et seq.], chapter 96 [6 1961 et seq.] or section 2516, 3057, or 3284 of this title to any act of any person (1) committed before Oct. 1, 1979, or (2) committed after Oct. 1, 1979, in connection with a case commenced before such date, see section 403(d) of Pub.L. 95-598, set out preceding section 101 of Title II, Bankruptcy. Amendment or Repeal of Inconsistent Provisions Section 259 of Pub.L. 91.452 provided that "In addition to the provisions of law specifically amended or specifically repealed by this title [see Effective Date note set out under this section), any other provision of law inconsistent with the provisions of part V of title 18, United States Code (added by title H of this Act) [this part), is to that extent amended or repealed." Abolition of the Atomic Energy Commission The Atomic Energy Commission was abolished and all functions were transferred to the Administrator of the Ener- gy Research and Development Administration (unless other- wise specifically provided) by section 5814 of Title 42, The Public Health and Welfare. The Energy Research and Development Administration was terminated and functions vested by law in the Administrator thereof were transferred to the Secretary of Energy (unless otherwise specifically provided) by sections 7151(a) and 7293 of Title 42. Termination of Civil Aeronautics Board and Transfer of Certain Functions All functions, powers, and duties of the Civil Aeronautics Board were terminated or transferred by former section 1551 of Title 49, Transportation, effective in part on Dec. 31, 1981, In part on Jan. I. 1983, and in part on Jan. 1, 1985. Termination of Federal Power Commission The Federal Power Commission, referred to in par. (1) was terminated and the functions, personnel, property, funds, etc.. thereof were transferred to the Secretary of Energy r certain functions which were transferred to the Energy Regulatory Commission) by sections 171(a), 7172(a). 7291, and 7293 of Title 42, The Public Health and Welfare. Subversive Activities Control Board The Subversive Activities Control Board was established by Act Sept. 23, 1950, c. 1024, § 12, 64 Stat. 997, and ceased to operate June 30, 1973. § 6002. Immunity generally Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or pro- vide other information in a proceeding before or ancil- lary to— (1) a court or grand jury of the United States, (2) an agency of the United States, or (3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommit- tee of either House, and the person presiding over the proceeding commu- nicates to the witness an order issued under this title, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled un- der the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false state- ment, or otherwise failing to comply with the order. (Added Pub.L. 91-452, Title iI, § 20I(a), Oct. 16, 1970, 84 Stat. 927, and amended Pub.L. 103-322, Title DOCIII, 330013(4), Sept- 13. 1994, 108 Stat. 2146.) § 6003. Court and grand jury proceedings (a) in the case of any individual who has been or may be called to testify or provide other inforthation at any proceeding before or ancillary to a court of the United States or a grand jury of the United States, the United States district court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he re- fuses to give or provide on the basis of his privilege against self-incrimination, such order to become effec- tive as provided in section 6002 of this title. Compiete Annotation Materials, sae Title ta, US.CA. 1210 EFTA00226422 Ch. 601 IMMUNITY OF WITNESSES 18 § 6005 (h) A United States attorney may, with the approv- al of the. Attorney General, the Deputy Attorney General, the Associate Attorney General, or any des- ignated Assistant. Attorney General or Deputy Assis- tant Attorney General, request an order under subsec- tion (a) of this section when in his judgment— (I) the testimony or other information from such individual may be necessary to the public interest; and (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination. (Added Pub.L. 91-452, Title II, § 201(a), Oct. 15 1970, 84 Stat 927, and amended Pub.L. 100-690, Title VII, § 7020(e), Nov. 18, 1988, 102 Stat. 4396; Pub.L. 103-322, Title XXXIII, § 330013(4), Sept 13, 1994, 108 Stat. 2146.) § 6004. Certain administrative proceedings (a) in the case of any individual who has been or who may be called to testify or provide other informa- tion at any proceeding before an agency of the United States, the agency may, with the approval of the Attorney General, issue, in accordance with subsection (b) of this section, an order requiring the individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effec- tive as provided in section 6002 of this title. (b) An agency of the United States may issue an order under subsection (a) of this section only if in its judgment— (1) the testimony or other information from such individual may be necessary to the public interest; and (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination. (Added Pub.L. 91-452, Title 11, § 201(a), Oct. 15, 1970, 84 Stat. 927, and amended Pub.L. 103-322, Title Mill, 330013(4), Sept. 13, 1994, 108 Stat. 2146.) § 6005. Congressional proceedings (a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to either House of Congress, or any committee, or any subcommittee of either House, or any joint committee of the two Houses, a United States district court shall issue. in accordance with subsection (b) of this section, upon the request of a duly authorized representative of the House of Congress or the committee concerned, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self- incrimination, such order to become effective as pro- vided in section 6002 of this title. (b) Before issuing an order under subsection (a) of this section, a United States district court shall find that— (1) in the case of a proceeding before or ancillary to either House of Congress, the request for such an order has been approved by an affirmative vote of a majority of the Members present of that House; (2) in the case of a proceeding before or ancillary to a committee or a subcommittee of either House of Congress or a joint committee of both Houses, the request for such an order has been approved by an affirmative vote of two-thirds of the members of the full committee; and (3) ten days or more prior to the day on which the request for such an order was made, the Attor- ney General was served with notice of an intention to request the order. (c) Upon application of the Attorney General, the United States district court shall defer the issuance of any order under subsection (a) of this section for such period, not longer than twenty days from the date of the request for such order, as the Attorney General may specify. (Added Pub.L. 91-452, Title 1I, § 201(a), Oct 15, 1970, 84 Stat. 928, and amended Pub.L. 103-322, Title )(MULL 330013(4), Sept 13, 1994, 108 Stat 2146; Pub.L. 104-292, 5, Oct ii, 1996, 110 Stat 3460; Pub.L. 104-294, Title Vi, § 605(o), Oct. 11, 1996, 110 Stat. 3510.) Complete Annotation Materials, see Title 18, U.S.CA. 1211 EFTA00226423 Memorandum Subject Changes to Child Exploitation Statutes in Title 18 September 26, 2006 To R. Alexander Acosta Thomas Mulvihill Jeffrey Sloman Kenneth Now Robert Waters Andrew Lourie Roger Stefin Karen Atkinson Rolando Garcia Bruce Brown Richard Boscovich Barbara Martinez From cc: Anne Schultz AUSA On July 27, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006. President Bush signed the Act into law on the same day. The Act made some dramatic changes to a number of sections in Title 18 - both sections that traditionally fall within "child exploitation" laws and other seemingly unrelated sections. The Act also created a series of new crimes that are expected to have a large impact on the District. This memo is meant to update you on the most pressing issue which is the changes that impact child exploitation crimes committed after July 27, 2006'. A. Changes to Mandatory Minimum and Maximum Sentences. 1. 18 U.S.C. § 1001 - False Statements The statutory maximum of 5 years' imprisonment has been increased to 8 years if "the matter relates tom offense under chapter 109A [§§ 2241-2248],109B [new § 2250], 110 [§§2251- 2260], or 117 [§§ 2421-2427], or Section 1591 [sex trafficking of children]". The Act immediately became effective, but the changes do not appear in the pocket pan for West's Federal Criminal Code and Rules. Because that book is most frequently referred to by AUSAs, many prosecutors may be unaware of the changes. Exhibit 16 EFTA00226424 2. 18 U.S.C. § 1591 - Sex Trafficking of Children There arc new statutory minimums and maximums for all of the categories of violations of Section 1591: (a) if the offense was effected by force, fraud, or coercion, or if the minor was under the age of 14, the minimum sentence is 15 years, up to a maximum of life; (b) if force, fraud, and coercion were not used and the minor was between 14 and 17, the minimum sentence is 10 years. up to a maximum of lift. 3. 18 U.S.C. § 2241 - Aggravated Sexual Abuse Whoever crosses a state line with the intent to engage in a sexual act with a child under 12, or whoever, in the special maritime or territorial jurisdiction of the United States or in a federal prison, engages in a sexual act with a child between the ages of 12 and 15 by force, threat of force, rendering the victim unconscious, or by administering a drug or intoxicant to the victim, shall be imprisoned not less than 30 years, up to a maximum of life. 18 U.S.C. § 2241(c). 4. 18 U.S.C. § 2242 - Sexual Abuse Whoever, in the special maritime and territorial jurisdiction of the United States or in a federal prison, engages in a sexual act with an adult by force, threat of force, or with a person mentally incapable of appraising the nature of the situation or a person physically incapable of refusing to participate, faces a maximum term of life imprisonment. 5. 18 U.S.C. § 2243 - Sexual Abuse of a Minor or Ward Whoever, in the special jurisdiction of the United States, engages in a sexual act with a person between 12 and 15 or with a prisoner, faces up to IS years' imprisonment. 6. 18 U.S.C. § 2244 - Abusive Sexual Contact If a person engages in "sexual contact" in the special jurisdiction of the United States, he or she faces the following sentences: (a) with a child under 12 or with a child between 12 and 15 by force, threats, or by incapacitating the victim, up to life imprisonment; (b) with an adult by force, threats, or with a person incapable of consenting, up to 3 years' imprisonment; (c) with a child between 12 and 15 or with a prisoner, up to 2 years' imprisonment. 2 EFTA00226425 7. 18 U.S.C. § 2245 - Offenses Resulting in Death The death penalty now applies to a person who commits murder in the course of an offense under Chapter I 09A, or section 1591, 2251, 225IA, 2260, 2421, 2422, 2423, or 2425. 8. 18 U.S.C. § 2251 - Sexual Exploitation of Children Section 2251 addresses the sexual exploitation of children for the production of child pornography (subsection (a)); allowing one's child or ward to engage in sexual conduct for the production of child pornography (subsection (b)); sexually exploiting a child outside the United States to create child pornography for importation into the United States (subsection (c)); and posting or publishing an advertisement or notice offering to receive, exchange, buy, produce, create, or distribute child pornography (subsection (d)). The statutory sentencing limits have remained the same (15 to 30 years for a first offense, 25 to 50 years for a second offense, and 35 to life for a third offense), but Congress now imposes a range of 30 years to life or death if the offense results in the death of a person. 9. 18 U.S.C. § 2252 - Activities Relating to Material Involving the Sexual Exploitation of Minors Violations of 2252(aX1), 2252(aX2) and 2252(aX3), which cover transporting, distributing, receiving, selling, or possessing with intent to sell, still carry statutory imprisonment ranges of 5 to 20 years for the first offense, and 15 to 40 years for a second offense. Violations of 2252(aX4), which addresses possession of child pornography keeps the statutory range of0 to 10 years for a first offense and 10 to 20 years for a second offense. The penalty provisions of 2252(b)( I ) and 2252(bX2) have been amended to expand the definitions of "prior conviction" to include sex trafficking of children. 10. 18 U.S.C. § 2252A - Activities Relating to Child Pornography The statutory sentencing ranges have not changed, but this section also was amended to include sex trafficking of children as a "prior conviction." 11. 18 U.S.C. § 2252B - Misleading Domain Names on the Internet The statutory maximum sentence for a violation of §2252B(b) - the knowing use of a misleading domain name with the intent to deceive a minor into viewing harmful material - has been increased to 10 years. 12. 18 U.S.C. § 2258 - Failure to Report Child Abuse The failure of a professional who works on federal land or a federally-operated facility to report child abuse now faces a maximum of I year in prison. 3 EFTA00226426 13. 18 U.S.C. § 2260 - Production of Child Pornography for Importation into the United States Violations of Section 2260(a) - use of a minor outside the United States to create child pornography meant to be imported into the United States - will now be punished under the sentencing scheme in 18 U.S.C. § 2251(e) - 15 to 30 for the first offense. 25 to 50 for the second. and 35 to life for the third, and death or 30 to life if the offense results in the death of a person. Violations of2260(b)- receiving, distributing, transporting, selling or possessing with intent to distribute child pornography meant for importation into the United States - is punished under the sentencing scheme in 18 U.S.C. § 2252(b)(I) - 5 to 20 for the first offense and 15 to 40 for a second offense. 14. 18 U.S.C. § 2422 - Coercion and Enticement The statutory sentence limits for using the mail or any facility of interstate or foreign commerce to persuade a minor to engage in prostitution or other sexual activity, in violation of 18 U.S.C. § 2422(b). have increased to 10 years to life. 15. 18 U.S.C. § 2423 - Transportation of Minors The mandatory minimum and maximum sentences for violations of 2423(a) - transportation of a minor with the intent that the minor engage in prostitution or other criminal sexual activity-also has been raised to 10 years to life. B. Changes to Sentencing Enhancements and Classification. 1. 18 U.S.C. § 2260A - New Enhancement for Registered Sex Offenders The Act created a new section, 2260A, which creates a ten-year consecutive sentence for a violation "involving a minor" under 18 U.S.C. §§ 1201, 1466A, 1470, 1591, 2241, 2242, 2243, 2244, 2245, 2251, 2251 A, 2260, 2421, 2422, 2423, and 2425, if the crime was committed while the defendant was required to register as a sex offender. Although not explicitly stated in the Amendment, this enhancement probably applies only to crimes of conviction involving a real minor (as opposed to an undercover officer) and, as a best practice, the AUSA should file a Sentencing Notice similar to a 21 U.S.C. § 851 Notice. 2. 18 U.S.C. § 3559 - Sentencing Classification of Offenses Section 3559(d) was added in 2004 mandating death or life imprisonment for the commission of a violent felony or a violation of Section 2422, 2423, or 2251, if the victim was less than 14 years old, the victim died, and the defendant acted with the intent, to kill or seriously injure the victim or in reckless disregard for human life. 4 EFTA00226427 3559(e) also was added in 2004 to impose mandatory life imprisonment if the defendant has a prior sex conviction with a real minor victim and the crime of conviction is a sex offense with a real minor victim. The Adam Walsh Act added 18 U.S.C. § 1591 (sex trafficking of children) to the definition of "sex offense." The Adam Walsh Act also added 3559(