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38.3.1.4
(08-11-2004)
Dual and Successive Prosecution
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DOJ’s Dual Prosecution Policy. The dual prosecution policy precludes the initiation or continuation of a federal prosecution following a state prosecution
based substantially on the same act or acts unless there is a compelling federal interest supporting the dual prosecution.
US Attorneys’ Manual (USAM), Sec. 9-2.031.
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DOJ’s Successive Prosecution Policy. The successive prosecution policy applies when there has been a prior federal prosecution based substantially on the same
act or acts unless there is a compelling federal interest supporting the successive prosecution. USAM, 9-2.031.
38.3.1.4.1
(08-11-2004)
Application of the Dual and Successive Prosecution Policies
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If either policy is applicable, prosecution will not be initiated without prior approval of the Assistant Attorney General,
Tax Division.
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The policies:
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Apply whenever the underlying acts or transactions have been the subject of a prior criminal proceeding to which jeopardy
attached;
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Are not terminated upon the filing of an indictment or criminal information; and
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Are not influenced by the fact that reversal of the earlier conviction is a possibility.
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Whenever the Solicitor General concludes that either the dual or successive prosecution policies has been violated, a motion
will be filed requesting that the judgment of conviction be vacated.
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The foregoing reflects:
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DOJ, under its dual or successive prosecution procedures, evaluates all IRS recommendations for prosecution in light of any
state and federal convictions of the taxpayer occurring before the criminal tax trial is commenced or guilty plea accepted
concerning conduct that may also constitute the criminal tax offense;
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DOJ will probably decline a criminal tax prosecution if the taxpayer is already serving a long jail sentence on any matter;
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Absent compelling reasons, DOJ will not institute prosecution where the taxpayer has previously been convicted for the same
transaction (i.e., where the unreported income in the proposed criminal tax case was derived from bribery, for which the taxpayer
has been convicted);
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In applying its dual or successive prosecution policy, the Tax Division has asserted that it considers such matters as the
similarity in the transaction(s) in the earlier conviction and the criminal tax case; the appropriateness of the punishment
in connection with the prior conviction; its deterrent effect; and, where appropriate, the appellate status of the prior conviction.
38.3.1.4.2
(08-11-2004)
Exceptions to the Dual and Successive Prosecution Policies
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Prosecution of a case having dual or successive prosecution implications is not necessarily prohibited if the Assistant Attorney
General, Tax Division, concludes that the prior proceeding left substantial federal interests demonstrably unvindicated.
38.3.1.4.3
(08-11-2004)
Review of Dual and Successive Prosecution during Investigative Stage
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The procedures outlined below are not meant to preclude the use of informal prereferral consultation between Criminal Investigation
and the Criminal Tax attorney.
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When Criminal Investigation identifies the existence or potential existence of dual and/or successive prosecution issues,
Criminal Investigation may ask the Criminal Tax attorney for prereferral legal assistance. Sufficient facts should be provided
to enable the Criminal Tax attorney to determine whether dual or successive prosecution policy considerations apply and if
they do apply, whether there are, nevertheless, compelling reasons to prosecute the criminal tax offense.
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Criminal Tax Attorney Procedures during the Investigatory Stage. Upon receipt, the Criminal Tax attorney will review the request and determine whether the dual or successive prosecution
policy considerations apply and so advise the SAC in writing. The Criminal Tax attorney is encouraged to work with Criminal
Investigation in the early detection and resolution of dual or successive prosecution issues.
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DOJ’s Dual and/or Successive Prosecution Prereferral Opinions. Where compelling reasons exist warranting prosecution, notwithstanding the existence of dual and/or successive prosecution
issues, opinions pertaining to the specific case may be obtained from the Tax Division. The Criminal Tax attorney prepares
a written request with relevant documentation attached, for the SAC’s signature, to the appropriate Chief, [Region] Criminal
Enforcement Section, Tax Division, for its opinion on the application of the policy. Extreme care will be exercised so that
only material meeting the tests set forth in IRC § 6103(h)(2) is forwarded to the Tax Division. The Tax Division has agreed
to this procedure and will give expeditious consideration to requests for opinions.
38.3.1.4.4
(08-11-2004)
Reviewing Cases with Dual or Successive Prosecution Considerations
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When present in a case, the Criminal Tax attorney will discuss the dual or successive prosecution considerations in the criminal
evaluation memorandum. The discussion will address whether or not compelling reasons exist warranting prosecution.
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