[EL] Unindicted co-conspirator?

[Jerald Lentini]

The United States Attorney's Manual addresses the question
<https://www.justice.gov/usam/usam-9-11000-grand-jury#9-11.130> and seems
to say that there's no need to specifically identify them by name (and good
reasons not to).

In the absence of some significant justification, federal prosecutors
generally should not identify unindicted co-conspirators in conspiracy
indictments. The practice of naming individuals as unindicted
co-conspirators in an indictment charging a criminal conspiracy has been
severely criticized in *United States v. Briggs*, 514 F.2d 794 (5th Cir.
1975).

Ordinarily, there is no need to name a person as an unindicted
co-conspirator in an indictment in order to fulfill any legitimate
prosecutorial interest or duty. For purposes of indictment itself, it is
sufficient, for example, to allege that the defendant conspired with
"another person or persons known." In any indictment where an allegation
that the defendant conspired with "another person or persons known" is
insufficient, some other generic reference should be used, such as
"Employee 1" or "Company 2". The use of non-generic descriptors, like a
person's actual initials, is usually an unnecessarily-specific description
and should not be used.

If identification of the person is required, it can be supplied, upon
request, in a bill of particulars. *See* USAM 9-27.760
<https://www.justice.gov/usam/usam-9-27000-principles-federal-prosecution#9-27.760>.
With respect to the trial, the person's identity and status as a
co-conspirator can be established, for evidentiary purposes, through the
introduction of proof sufficient to invoke the co-conspirator hearsay
exception without subjecting the person to the burden of a formal
accusation by a grand jury.

The prohibition against naming unindicted co-conspirators should not extend
to persons who have otherwise been charged with the same conspiracy, by way
of unsealed criminal complaint or information. In the absence of some
significant justification, federal prosecutors generally should not
identify unindicted co-conspirators in conspiracy indictments. See USAM
9-16.500
<https://www.justice.gov/usam/usam-9-16000-pleas-federal-rule-criminal-procedure-11#9-16.500>
; 9-27.760
<https://www.justice.gov/usam/usam-9-27000-principles-federal-prosecution#9-27.760>
.

[updated April 2018] [cited in USAM 9-16.500
<https://www.justice.gov/usam/usam-9-16000-pleas-federal-rule-criminal-procedure-11#9-16.500>
]


On Sun, Aug 26, 2018 at 8:34 PM, Mark Scarberry <
mark.scarberry at pepperdine.edu> wrote:

> A professor who teaches at a southern California law school referred to
> Pres. Trump at least twice on a local news program as "an unindicted
> co-conspirator." Isn't that a term of art that refers to a person
> specifically identified in a grand jury indictment (or maybe an
> information) as having engaged in a criminal conspiracy with the indicted
> defendant? Am I right? Has Trump been so identified? I recall the term
> being used of Nixon.
>
> I don't mean to express an opinion on whether Trump actually has been
> involved in a criminal conspiracy.
>
> [cross posted to the conlawprof list]
>
> Mark
>
> Prof. Mark S. Scarberry
> Pepperdine University School of Law
>
>
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> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
>
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