Justice Manual § 9-10.060

Absent extenuating circumstances, the United States Attorney or Assistant Attorney General shall submit cases for review under this Chapter before seeking an indictment that charges capital-eligible offenses. Extenuating circumstances may include, for example, a need to present capital-eligible charges to comply with the Speedy Trial Act, to address public safety concerns, or to collect or analyze information needed to inform the review process.

If extenuating circumstances preclude the completion of pre-indictment review, the United States Attorney or Assistant Attorney General shall submit, before seeking the indictment, a memo to the CCS explaining the reasons for instituting capital charges before obtaining authorization under this Chapter. The form for this notice is available on the CCS’s site on DOJNet. To prevent undue delay in bringing capital cases to trial, the United States Attorney or Assistant Attorney General shall update the memo every 60 days explaining why the case has not been submitted for the Attorney General’s decision. After 180 days, the United States Attorney or Assistant Attorney General’s update must include a request for additional time, which the CCS will convey to the Office of the Deputy Attorney General for approval.

To provide sufficient time for the Department’s review and 18 U.S.C. 3593(a)’s requirement to file a death penalty notice a “reasonable” time before trial, the United States Attorney or Assistant Attorney General should initiate review at least 150 days before a scheduled trial and 90 days before the Government is required, by court order, to file a notice of intent to seek the death penalty. If a case is not submitted 90 days in advance of a decision deadline or 150 days in advance of trial, the prosecution memorandum must explain the delay.