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Case 22-1426, Document 77, A149 3536038, Page151 of 258 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 149 of 348 that come within the national investigation and prosecution priorities established by the Department are more likely to satisfy this requirement than other matters. (2) The prior prosecution must have left the substantial federal interest “demonstrably unvindicated.” In general, the Department presumes that a prior prosecution has vindicated federal interests, but that presumption may be overcome in certain circumstances. As relevant here, the presumption may be overcome when the choice of charges in the prior prosecution was based on factors such as incompetence, corruption, intimidation, or undue influence. The presumption may be overcome even when the prior prosecution resulted in a conviction, if the prior sentence was “manifestly inadequate in light of the federal interest involved and a substantially enhanced sentence—including forfeiture and restitution as well as imprisonment and fines—is available through the contemplated federal prosecution.” (3) The government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction. However, the satisfaction of the prerequisites does not require a prosecutor to proceed with a federal investigation or charges nor is the Department required to approve the proposed prosecution. The Petite policy cautions that whenever a matter involves overlapping federal and state jurisdiction, federal prosecutors should consult with their state counterparts “to determine the most appropriate single forum in which to proceed to satisfy the substantial federal and state interests involved.” Ifa substantial question arises as to whether the Petite policy applies to a particular prosecution, the prosecutor should submit the matter to the appropriate Assistant Attorney General for resolution. Prior approval from the appropriate Assistant Attorney General must be obtained before bringing a prosecution governed by this policy. 3. USAM Provisions Relating to Plea Agreements Federal prosecutors have discretion to resolve an investigation or pending case through a plea agreement. USAM 8§ 9-27.330; 9-27.400. Negotiated pleas are also explicitly sanctioned by Federal Rule of Criminal Procedure 11(c)(1).!°? Regardless of whether the plea agreement is offered pre-charge or post-charge, the prosecutor’s plea bargaining “must honestly reflect the totality and seriousness of the defendant’s conduct.” USAM § 9-27.400, comment.'** The importance of selecting a charge that reflects the seriousness of the conduct is echoed in USAM § 9-27.430, which directs the prosecutor to require a defendant to plead to an offense that represents the most serious readily provable charge consistent with the nature and extent of the oS As previously noted, Rule 11(c)(1)(C) permits the parties to agree to resolve the case in exchange for a specific sentence, subject to the court’s acceptance of the agreement. 1m See also USAM § 9-27.300 (“Once the decision to prosecute has been made, the attorney for the government should charge . . . the most serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction.”). 123 DOJ-OGR-00021323