In the past few months, the new administration has issued a steady stream of policies and guidance that appear to dramatically impact the direction of federal criminal and regulatory authorities over the next few years.
Different agencies are to assume new responsibilities while shedding others—in just the past few days, for example, the DOJ has issued guidance stating that it will only pursue prosecutions in certain cases involving digital assets, while leaving other cases to civil regulators.
But regardless of the musical chairs at various three-lettered agencies, the administration's new proclamations sound much like ones from past administrations in one notable way—an assembling of various task forces and inter-governmental agencies to combat the administration's law enforcement and national security priorities.
This Avengers-style approach to criminal and civil enforcement is hardly new to white collar practitioners. For years, criminal defendants and their counsel have confronted parallel investigations from criminal and civil authorities, such as the DOJ's interactions with the SEC or CFTC in securities and commodities fraud investigations, and with the FDA or Department of Health and Human Services in healthcare fraud investigations; or with intelligence agencies in national security cases.
Such coordinated inquiries pose significant threats to the targets of their investigations, forcing them into difficult strategic decisions or imposing increased financial burdens. The prosecution is able to benefit from the investigative resources of other agencies of the federal government, but when defendants seek discovery from prosecutors concerning relevant information in these other agencies' files, their requests are generally rebuffed.
In doing so, courts have read into prosecutors' discovery obligations a limitation—often called the "prosecution team" theory—that sharply restricts what constitutes materials within the prosecutors' or their investigating agents' possession, custody, or control.
At this point, courts' significant reluctance to permit criminal defendants to obtain discovery from other, non-DOJ agencies, has hardened into a nearly impenetrable wall.
To be sure, courts acknowledge the possibility that DOJ may coordinate so closely with another agency as to require prosecutors to collect and produce material from that agency's files. But the weight of the defendant's burden in proving such a so-called "joint investigation," the savviness of prosecutors now cautious of increasing their discovery obligations, and the defendant's lack of visibility into the prosecutors' communications with other agencies make that possibility largely theoretical.
While the lines between the DOJ and, for example, the SEC may be clear (at least on paper), those distinctions become blurrier when talking about components within the DOJ or a law enforcement agency, such as different U.S. Attorney's Offices or FBI field offices.
Even though these various offices may all fall under the same umbrella of the DOJ or a particular investigative agency, courts still apply concepts of "prosecution team" or "joint investigation" to the intra-agency analysis.
As a result, defendants face the same obstacles in seeking discovery from these sources as they would from agencies wholly outside the DOJ. And that means that defendants may be denied information that is critical to their defense simply because, for example, that information is in one FBI agent's files rather than another's, even though the prosecutors handling the case are well aware of it.
In light of that, it is critical that defendants facing such multi-district or multi-agency investigations employ counsel who are familiar with navigating these issues and are able to adopt creative strategies to secure the information they need for their defense.
Legal Framework: Rule 16 and the 'Prosecution Team' Limitation
Pursuant to Federal Rule of Criminal Procedure 16(a)(1), "[u]pon a defendant's request, the government must permit the defendant to inspect [documents or other items], if the item is within the government's possession, custody, or control and [] the item is material to preparing the defense."
Moreover, in addition to its Rule 16 obligations, the government has constitutional duties "to disclose favorable evidence to the accused where such evidence is 'material' either to guilt or to punishment." United States v. Coppa, 267 F.3d 132, 139 (2d Cir. 2001).
Evidence is material "if it could be used to counter the government's case or to bolster a defense," United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993), and the materiality standard should be met where "there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal," United States v. Stein, 488 F. Supp. 2d 350, 356-57 (S.D.N.Y. 2007).
The "prosecutor is presumed to have knowledge of all information gathered in connection with his office's investigation of the case and indeed has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police." United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998).
From this concept, courts have restricted the prosecution's disclosure obligations to those materials in the possession, custody, or control of the "prosecution team," and then have often narrowly construed the "prosecution team" to those prosecutors and agents who are specifically involved in particular investigation.
The lines of the "prosecution team" can get blurry quickly, however, particularly when another agency participates in the investigation. In those cases—where there has been a "joint investigation" between the prosecutors/investigating agency and the other government agency—the prosecutors may have an obligation to search the other agency's files for exculpatory material. See United States v. Martoma, 990 F. Supp. 2d 458, 460 (S.D.N.Y. 2014).
The joint investigation inquiry is necessarily a fact-intensive one that focuses on the degree of cooperation between the two agencies. See id. at 461. Courts, however, are loath to find that there has been a joint investigation, and have held that a number of factors that support joint activity—including sharing of information between the agencies and discussions of strategy—are insufficient to demonstrate the requisite coordination.
Moreover, even making such a showing in the first place can be prohibitively difficult because the evidence that might show coordination, such as emails between prosecutors and other agency lawyers, are not typically available to the defense.
Inter-Agency and Intra-DOJ Issues
Multi-agency and multi-district criminal investigations are commonplace. For example, early in an investigation, different FBI field offices may commence investigations into the same conduct, particularly where there are victims in multiple federal districts.
Or, a company may find itself as the victim in one federal investigation, while being the target in another—for example, if there was a cyber-intrusion into a company's servers that resulted in a leak of incriminating evidence of foreign corruption.
In these and many more cases, information relevant to a particular case may be found in the files of DOJ offices in many different parts of the country.
One of the most sweeping examples of this issue occurred during Special Counsel Jack Smith's prosecution of President Donald Trump related to the incidents of January 6, 2021.
There, defense counsel sought discovery from various sub-components of DOJ, as well as other federal agencies. With respect to the other federal agencies, such as the Department of Homeland Security, the Department of Defense, and the January 6 Select Committee, the court found that the traditional "prosecution team" rubric required denial of the defense request.
With respect to the various components of DOJ, however, the court adopted a more nuanced approach. For example, the court held that with respect to Special Counsel's Office (the "SCO"), the January 6 prosecution team had to review files from a separate investigation into President Trump's alleged retention of classified information in Florida because, among other reasons, the SCO "used the same grand jury in this District for matters relating to both" prosecutions, and "at least some of the individuals now working on each case participated in the investigation of the other." United States v. Trump, 753 F. Supp. 3d 17, 44-51 (D.D.C. 2024).
Similarly, the court also directed the SCO to search for relevant information in the files of prosecutors at the U.S. Attorney's Office for the District of Columbia and agents at the FBI's Washington Field Office who had participated in the investigation at any point. Id. at 44.
In United States v. Guo, the court also considered how finely the "prosecution team" concept should be applied to a defendant's discovery requests. Guo, which was prosecuted by the U.S. Attorney's Office for the Southern District of New York ("USAO-SDNY") and a squad from the FBI's New York field office ("FBI-NY"), involved allegations that the defendants had participated in a fraud related to business ventures connected to a pro-Chinese democracy movement in which they were prominent figures.
Granting a defense motion to compel, the court directed USAO-SDNY to produce certain categories of information related to efforts to derail or silence the political movement (the "Guo Order").
While the Guo prosecution was underway, another U.S. Attorney's Office unsealed a criminal complaint (the "complaint") that included the kind of information described in the Guo Order. Although the complaint was based on an investigation conducted by a separate FBI field office, the affiant for the complaint was an agent with FBI-NY.
Given the overlap between the complaint and the Guo Order, the defense pressed the USAO-SDNY for disclosures as to whether the prosecutors were also reviewing USAO-SDNY and FBI-NY's files for information concerning the complaint.
USAO-SDNY, however, refused to disclose that information, prompting the defense to move to compel the prosecution to confirm that it was searching for that information. In its motion, the defense noted the strangeness of the fact that the USAO-SDNY knew explicitly that there was information that the court had already deemed to be exculpatory sitting in the files of the same FBI field office that had conducted the Guo investigation, but nevertheless refused to collect that information.
The court rebuffed that argument, holding that because the agents who had investigated the conduct underlying the Complaint were with a different FBI field office, they were not part of the Guo "prosecution team" and thus USAO-SDNY was not obligated to search FBI-NY's files concerning the Complaint for information subject to the Guo Order.
The court's decision, however, left significant questions unaddressed.
First, the court did not address the defense's argument that, notwithstanding which field office conducted the underlying investigation, there was no dispute that the agents at FBI-NY who conducted the Guo investigation had access to the complaint materials.
Second, the court also had no factual record upon which to assess the coordination between the agents who investigated the Guo case or those who looked into the conduct alleged in the complaint, and did not require USAO-SDNY to provide any information to that effect.
And third, the court's rote application of the "prosecution team" standard in a situation where there is no dispute that the prosecutors explicitly knew of the existence of exculpatory information, knew where the information was, and could access it with a push of a button suggests that the concept is being applied in ways that strays from prosecutors' basic obligations to ensure the fairness of criminal prosecutions.
To be sure, courts have to be wary of imposing burdens on prosecutors to search the whole of government for exculpatory material for fear of paralyzing criminal prosecution—but that is a far cry from asking those prosecutors to walk down the hall from one FBI agent's office to another to collect exculpatory information that everyone knows exists.
So What To Do?
So what choices do defendants in these situations have? Unfortunately, without a re-envisioning by courts of the "prosecution team" concept in such situations or legislative action, the answer may be "not many."
To be sure, defendants have tools at their disposal—for example, subpoenas issued under Federal Rule of Criminal Procedure 17 or FOIA requests. But those tools have their own limitations; a Rule 17(c) subpoena imposes nearly impossible burdens on defendants to identify with specificity the documents they seek and to speculatively demonstrate their admissibility, and a FOIA request can take years to resolve.
As a result, at this point, the best option for a defendant faced with one of these situations is to retain counsel with experience and knowledge of how criminal investigations work and how different agencies and offices may work together or in parallel, who can press the government for the information needed to try to mount a challenge under the current "prosecution team" rubric.
This article originally appeared in the April 17, 2025 edition of the "New York Law Journal" © 2025 ALM Global Properties, LLC. All rights reserved.
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