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Case 22-1426, Document 77, A148 3536038, Page150 of 258 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 148 of 348 Some offenses, even though in violation of Federal law, are of particularly strong interest to the authorities of the state or local jurisdiction in which they occur, either because of the nature of the offense, the identity of the offender or victim, the fact that the investigation was conducted primarily by state or local investigators, or some other circumstance. Whatever the reason, when it appears that the Federal interest in prosecution is less substantial than the interest of state or local authorities, consideration should be given to referring the case to those authorities rather than commencing or recommending a Federal prosecution. Another comment cautions that in assessing whether to defer to state or local authorities, “the Federal prosecutor should be alert to any local conditions, attitudes, relationships or other circumstances that might cast doubt on the likelihood of the state or local authorities conducting a thorough and successful prosecution.” USAM § 9-27.260 identifies impermissible considerations relating to the decision whether to initiate or decline a federal prosecution. Specifically, the decision may not be based on consideration of the person’s race, religion, sex, national origin, or political association, activities, or beliefs; the prosecutor’s “own personal feelings” about the person or the victim; or the possible effect of the decision on the prosecutor’s own professional or personal circumstances. When opting to decline federal prosecution, the prosecutor should ensure that the reasons for that decision are communicated to the investigating agency and reflected in the office files. USAM § 9-27.270. 2. USAM § 9-2.031: The Petite Policy Although the Constitution does not prohibit prosecutions of a defendant by both state and federal authorities, even when the conduct charged is identical in both charging jurisdictions, the Department has a long-standing policy, known as the Petite policy, governing federal prosecutions charged after the initiation of a prosecution in another jurisdiction based on the same or similar conduct.!°? The general principles applicable to the prosecution or declination decision are set forth in USAM § 9-2.031, “Dual and Successive Prosecution Policy (‘Petite Policy’),” which contains guidelines for a federal prosecutor’s exercise of discretion in determining whether to bring a federal prosecution based on the substantially same act or transaction involved in a prior state or federal proceeding. The policy applies “whenever there has been a prior state or federal prosecution resulting in an acquittal, a conviction, including one resulting from a plea agreement, or a dismissal or other termination on the merits after jeopardy has attached.” In circumstances in which the policy applies, a prosecutor nonetheless can initiate a new federal prosecution when three substantive prerequisites exist. The prerequisites are as follows: (1) The matter must involve a substantial federal interest. The determination whether a substantial federal interest is involved is made on a case-by-case basis. Matters 192 See Rinaldi v. United States, 434 U.S. 22, 27-29 (1977); Petite v. United States, 361 U.S. 529 (1960). 122 DOJ-OGR-00021322