Office of Enforcement Operations - United States Department of Justice

Office of EnforcementOperations

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1By Maureen H. Killion

Survey of Title III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2By Julie Wuslich

Witness Security and Special Operations Unit . . . . . . . . . . . . . . . . . . . . . . . 7By Eileen P. Ruleman

The Witness Immunity Unit of the Office of Enforcement Operations . . 10By Kathleen N. Coleman

Office of Enforcement Operations' Policy and Statutory Enforcement Unit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

By Mary HealySpecial Administrative Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

By Jennifer UnderrinerThe International Prisoner Transfer Program . . . . . . . . . . . . . . . . . . . . . . 23

By Paula A. WolffGambling Devices and Legislative History Unit . . . . . . . . . . . . . . . . . . . . . 30

By Gladys WilsonChart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Office of Enforcement Operations Consultation, Notification, andApproval Requirements

January 2007

Volume 55Number 1

United StatesDepartment of JusticeExecutive Office for

United States AttorneysWashington, DC

20530

Michael A. BattleDirector

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In This Issue

JANUARY 2007 UNITED STATES ATTORNEYS' BULLETIN 1

Introduction Maureen H. KillionDirector Office of Enforcement OperationsCriminal Division

It is my great pleasure to write theintroduction to this issue of the UnitedStates Attorneys' Bulletin devoted to the

mission of the Criminal Division's Office ofEnforcement Operation (OEO). As the Director ofOEO, I supervise the operations of almost 100employees—attorneys, paralegals, securityspecialists, and secretaries. Our responsibility is toensure oversight of critical Department of Justice(Department) functions entrusted to OEO byCongress and the Attorney General, and do soaccurately and promptly. OEO has been taskedwith overseeing the use, by the federal lawenforcement community, including theUnited States Attorneys' offices, federalinvestigative agencies, and the sections andoffices of the Criminal Division, of the mostsensitive investigative techniques in the federalarsenal.

The techniques guarded by OEO constitutemany of the most important law enforcement toolsavailable to federal prosecutors and agents toensure success against terrorism, drug trafficking,gang violence, and other crimes menacing ourNation. OEO reviews applications to use thefollowing techniques.• Most types of electronic surveillance (e.g., the

interception of wire, oral, and/or electroniccommunications pursuant to Title III of theOmnibus Crime Control and Safe Streets Actof 1968, as amended; court-authorized videosurveillance; certain sensitive uses ofconsensual monitoring).

• Entry into the Federal Witness SecurityProgram and oversight to ensure the ongoingsecurity of Program witnesses and theirfamilies.

• Grand jury and trial immunity.• Imposition of Special Administrative

Measures (SAMs), requiring restrictiveconfinement conditions on persons in theAttorney General's custody, in addition to

those conditions already imposed by theFederal Bureau of Prisons.

• Authority to seek subpoenas directed at thenews media. For some of these techniques, an official in

OEO can grant authorization. Many of thesematters, however, require the approval of aDeputy Assistant Attorney General, the AssistantAttorney General, or even the Attorney General.

OEO's responsibilities also include thefollowing.• Adjudicating requests from foreign-national

prisoners to transfer from a United Statesprison to serve their U.S.-imposed prisonsentences in their home countries, and,conversely, requests from foreign-heldUnited States citizens to serve their sentencesin a U.S. prison.

• Reviewing legislation and proposed ExecutiveBranch policies that would impact federalprogram areas within OEO's purview.

• Registering the use of certain gamblingdevices.

• Compiling and maintaining the legislativehistories for all federal criminal laws enactedby Congress.

• Providing specialized legislative-historyassistance to Assistant United StatesAttorneys, when requested.

• Overseeing Freedom of Information Act andPrivacy Act requests presented to the CriminalDivision.

• Giving legal advice to Assistant United StatesAttorneys and others in the many subjectareas that have been entrusted to OEO. Thoseareas go well beyond the subjects addressedabove, and include such diverse matters asouter space law and the laws governing thepreservation of archaeological sites. Theabove list is by no means complete.Many of OEO's most commonly used

functions are described in some detail in thefollowing pages. However, many otherresponsibilities are not included, such as assistingthe Criminal Division to comply with the CrimeVictims' Rights Act. The majority of OEO's

2 UNITED STATES ATTORNEYS' BULLETIN JANUARY 2007

responsibilities are explained in the United StatesAttorneys' Manual and the related CriminalResource Manual. The Office also maintains anupdated listing of the approval, consultation, andnotification requirements involving OEO that areapplicable to the United States Attorneys' officesand law enforcement agencies. This information,in chart form, is included in this issue, starting onpage 31.

OEO provides the Department's decision-makers with the information needed to overseeand shepherd the use of some of the mosteffective investigative and prosecutorial toolsentrusted to the Department to combat crime,violence, and terror. OEO is tasked to safeguardthe balance between the evidentiary needs of lawenforcement and the need to protect the rights ofAmerican citizens to be free from unnecessaryincursions into personal privacy. I am particularlyproud of the recognition and many awards forobjective and effective oversight, given to themembers of OEO, individually and as a group, bythe Attorney General's Office, the Office of theAssistant Attorney General for the CriminalDivision, the U.S. Attorneys' offices, and theinvestigative agencies. OEO stands ready to helpthe U.S. Attorneys' offices and federal lawenforcement agencies acquire and use theseindispensable tools to successfully investigatecrimes, prosecute criminals, and sustain

convictions. The following articles will providevaluable information and serve as a handyreference. You can remain confident that OEO isalways available to assist in investigations andprosecutions, address questions, and advance yourprosecutorial efforts. All of OEO's units andprogram supervisors can be reached at (202) 514-6809.˜

ABOUT THE AUTHOR

‘Maureen H. Killion joined the CriminalDivision through the Department's HonorsProgram. She initially served in the AppellateSection and the former Office of Legal SupportServices before joining the OEO as a TrialAttorney. Since then, she has served as Chief ofthe Electronic Surveillance Unit, AssociateDirector of OEO, and Senior Associate Directorof OEO. Mrs. Killion has also served the Divisionas Acting Chief of International TrainingPrograms. She continues to work on a variety ofhigh-profile electronic surveillance cases andlegislative matters since being appointed Directorof OEO in 2001.a

Survey of Title IIIJulie WuslichChief, Electronic Surveillance UnitOffice of Enforcement OperationsCriminal Division

I. Introduction

In 1968, Congress passed Title III of theOmnibus Crime Control and Safe StreetsAct (Title III) to legalize and regulate the

use of electronic surveillance (wiretapping) byfederal law enforcement agencies in criminalinvestigations, in accordance with FourthAmendment jurisprudence. As originally enacted,Title III authorized only the interception of wire(voice) and oral (face-to-face) communications toinvestigate certain crimes. Title III remained intactuntil Congress amended the statute in 1986 to

permit the interception of electroniccommunications (data transmitted via facsimilemachine, computer, and pager) to investigatefederal felonies and allowed, for the first time, theinterception of criminals using changing facilitiesor locations, without first having to specify theparticular facility or location to be tapped. 18U.S.C. § 2518(11)(a), (b) (the roving provision).Title III was amended again in the late 1990s toease the roving provision's burden of proof, andagain in 2001 to strengthen law enforcement'sability to combat terrorism (the USA PATRIOTAct, Pub. L. No. 107-56, 115 Stat. 272 (2001)).

While Congress granted law enforcement theuse of this powerful investigative tool, it alsorecognized the potential for its abuse. Therefore,when it enacted Title III in 1968, it mandated thata high-ranking official in the Department of


Justice (Department) approve all federal wiretapapplications before their submission to a federalcourt for action. 18 U.S.C. § 2516(1). As a result,the Department assigned the Office ofEnforcement Operations (OEO) the responsibilityof vetting these applications to ensure compliancewith Title III and the Department's policiesregarding the use of electronic surveillance.OEO's oversight is accomplished through thework of the Electronic Surveillance Unit, which iscurrently comprised of ten attorneys.

II. Title III requirementsTitle III imposes many requirements on

federal law enforcement agencies when they seeka wiretap. See 18 U.S.C. §§ 2510-2522. Failure tocomply with the following three requirements, inparticular, will likely result in suppression of thewiretap evidence. • Acquiring Department approval before

submission of the wiretap application to acourt.

• Establishing probable cause to believe thatevidence of a stated crime will be obtainedduring the wiretap.

• Establishing necessity for the wiretap.A. Department approval

Title III requires that a statutorily designatedDepartment official authorize a Title IIIapplication seeking to intercept wire or oralcommunications before the application issubmitted to a federal district court judge or acourt of appeals judge for consideration. 18U.S.C. §§ 2516(1), 2510(9). (As a practicalmatter, most, if not all, Title III applications arereviewed and approved by a federal district courtjudge. Appellate judges have issued orders when adistrict court's jurisdiction over thefacility/location to be tapped has beenquestionable.)

As to the interception of electroniccommunications, Title III permits a United StatesAttorney to approve those applications before theyare submitted to court. 18 U.S.C. § 2516(3).Notwithstanding the statute, Congress and theDepartment have long agreed that the Departmentwould also approve applications seeking tointercept electronic communications over certaintypes of facilities, such as computers, facsimilemachines, text-messaging pagers, and telephones,before those applications are submitted to a court

for action. The Department is not required,however, to review and approve applicationsseeking to intercept electronic communicationsover digital display pagers. Those applicationsmay be approved by the United States Attorney.18 U.S.C. § 2516(3).

When the government fails to obtainDepartment approval for applications to interceptwire or oral communications before the courtissues the order, the wiretap evidence will besuppressed. See United States v. Reyna, 218 F.3d1108, 1112 (9th Cir. 2000) ("The statutorysequence of wiretap authorization makes it clearthat prior authorization by senior executive branchofficials is an express precondition to judicialapproval under [section] 2516; its violation meritssuppression. A district court may not delegate tolaw enforcement officials at any level its singularpower to set the surveillance mechanism inmotion." (citing United States v. Chavez, 416 U.S.562 (1974))). It should be noted, however, thatbecause Title III does not require priorDepartment approval before the government seeksan order to intercept electronic communications,there is no suppression remedy for failure to doso. Nonetheless, a government attorney can facedisciplinary action if the attorney does not obtainapproval for those applications because priorapproval is mandated by Department policy.

The issue of whether the Department has toreauthorize a wiretap application if the supportingaffidavit has been revised subsequent toDepartment approval, but before the court issuesits order, was decided recently in United States v.Chan, No. C 05-00375 SI, 2006 WL 1581946(N.D. Cal. June 6, 2006). The defense contendedthat the wiretap was unlawful because the finalversion of the affidavit contained materialrevisions that had not been reviewed or approvedby the Department. When denying the defenseclaim, the court found that, in fact, the changes tothe affidavit merely clarified and supportedcertain facts already discussed in the originalversion, and that the judge was permitted under 18U.S.C. § 2518(2) to "require the applicant tofurnish additional testimony or documentaryevidence in support of the application," withoutfurther Department approval. The court did note,however, that the Department may need toreauthorize a wiretap application when asignificant period of time has elapsed between theDepartment's initial approval and a court's reviewof the application, and/or when material factschange or develop subsequent to the Department's


approval that could have affected the official'sdecision to authorize the application.

In sum, failure to obtain Department approvalof a wiretap application to intercept oral or wirecommunications before it is submitted to a judgewill result in suppression and, in the case ofapplications to intercept electroniccommunications, disciplinary action for theprosecutor. In addition, the Department may needto reauthorize a wiretap application if a substantialperiod of time has elapsed between obtainingDepartment approval and submission of theapplication to the court (more than thirty days), orif the government subsequently obtains facts thatcould affect a Department official's decision toapprove the application.B. Probable cause

As with any search warrant, the governmentmust show that there is probable cause to believethat evidence of the crime will be obtained duringthe search. With regard to the seizure of intangibleevidence, such as communications, the standard isno different, and Title III merely codified thatbasic Fourth Amendment principle at 18 U.S.C.§ 2518. See United States v. Fury, 554 F.2d 522,530 (2d Cir. 1977). Under Title III, thegovernment must show that there is probablecause to believe that "an individual (if known) iscommitting, has committed, or is about to commita particular offense" and that "particularcommunications concerning [the alleged] offensewill be obtained through such interception" of aparticular, specified facility or location. 18 U.S.C§ 2518(3)(a),(b). But see 18 U.S.C. § 2518(11)(a),(b) (the roving provision provides for exceptionsto the specificity requirement for thefacility/location). A Title III warrant, however,differs in one important aspect—a Title III ordermay be issued only if certain crimes are beinginvestigated. If the government is seeking tointercept oral or wire communications, it mustestablish probable cause that one of the crimeslisted under 18 U.S.C. § 2516(1) is beingcommitted, and if the government is seeking tointercept electronic communications, there mustbe probable cause that a federal felony is beingcommitted. 18 U.S.C. § 2516(3).

When the existence of probable cause hasbeen challenged, the courts consider a number offactors, such as the type of crime, the length of thecriminal activity, the nature of the object of thesearch, and whether stale information has beenupdated and corroborated, to decide the key

issue—whether the object of the search will stillbe found at the time of the issuance of thewarrant. See United States v. Rhynes, 196 F.3d207, 234 (4th Cir. 1999); United States v. Ozar,50 F.3d 1440, 1446 (8th Cir. 1995) ("probablecause to issue the warrant must exist at the time itis issued"). Under this analysis, an isolatedcriminal act, though recent, by an individual whocannot be tied to ongoing criminal activity will beinsufficient to establish probable cause for asearch. See United States v. Lester, No. 05-5586,2006 WL 1549938, *2 (6th Cir. June 7, 2006)(Evidence that a single transfer of drug moneylikely occurred at appellant's home two weeksbefore the warrant was issued did not establishprobable cause that he was involved in theongoing drug conspiracy and, therefore, did notsupport the search of the appellant's property.).See also United States v. Wagner, 989 F.2d 69, 75(2d Cir. 1993) ("because the [a]ffidavit does notestablish the likelihood that there was an ongoingdrug-selling operation in [the] home, the districtcourt [did not err] in finding no probable cause.").

When the government can link the object ofthe search to the ongoing criminal conduct, andupdates and corroborates any stale information,the courts will find probable cause. SeeUnited States v. Urban, 404 F.3d 754, 775 (3dCir. 2005) (probable cause for video surveillanceupdated to within months of warrant applicationin an investigation spanning several years);United States v. Diaz, 176 F.3d 52, 109-10 (2dCir. 1999) (pen register data updated andbolstered probable cause by showing extensiveuse of phone to call criminal associates); Ozar, 50F.3d at 1447 (physical surveillance updated andcorroborated otherwise stale information);Wagner, 989 F.2d at 74 (pen register data used tocorroborate informant to support taps on phones);United States v. Rowell, 903 F.2d 899, 900, 902-03 (2d Cir. 1990) (pen register data updated andcorroborated stale information); United States v.LaMorte, 744 F. Supp. 573, 576 (S.D.N.Y. 1990)(probable cause updated to within six months ofwarrant application; court found that the tangibleevidence sought was "not temporary in nature"and not "likely to dissipate over the interveningtime" between the act giving rise to probablecause and the execution of the search); UnitedStates v. Gricco, No. CR.A. 01-90, 2002 WL393115 (E.D. Pa. Mar. 12, 2002) (probable causeupdated to within weeks of warrant application).

In light of the case law, the Departmentrequires that every wiretap application seeking to


tap a new facility or a new location meet abaseline standard of probable cause by showingboth of the following.• Criminal use of the facility or location within

six months of the Department's approval.• Circumstantial evidence, such as phone

records or physical surveillance showing,respectively, that the facility or the locationhas been used for criminal purposes withinthree weeks (twenty-one days) of theDepartment's approval. While appellate courts routinely defer to a

lower court's probable cause determination, anaffiant's purposeful misstatement of the facts inthe affidavit will likely result in a Franks hearingand, if found to be material to the probable causedetermination, will result in suppression. SeeFranks v. Delaware, 438 U.S. 154 (1978)(evidence must be suppressed if the affidavitcontained material information that the affiantknew was false or should have known was false).A Franks hearing and/or resulting suppression ofthe wiretap evidence can occur when an affianttakes one or more of the following actions.• Disguises the source of the information being

relied on for probable cause.• Conceals an informant's identity by naming

him as a target of the investigation.• Omits facts that bear on an informant's

credibility. • Withholds information about an informant's

basis of knowledge. See, respectively, United States v. McCain, 271 F.Supp. 2d 1187, 1191-93 (N.D. Cal. 2003)(portrayal of wiretap evidence as an informantshowed a reckless disregard for the truth andprecluded a proper determination of probablecause; evidence suppressed); United States v.Falls, 34 F.3d 674, 681-82 (8th Cir. 1994)(informant identified as a subject who wascommitting the crimes in order to protect hisidentity; no suppression, but the court requiredprior notice of this practice in the future);United States v. Meling, 47 F.3d 1546, 1555-56(9th Cir. 1995) (deliberate misrepresentation ofinformant's motive to cooperate and omission ofinformant's prior record of deception and mentalillness; no suppression because probable causewas found "once the FBI's dissembling [was]corrected"); United States v. Gruber, 994 F. Supp.1026, 1035 (N.D. Iowa 1998) (affiant omitted fact

that the informant was a member of theorganization being investigated; no suppressionbecause subterfuge was designed to protect theinformant's safety and not to enhance theaffidavit).

Accordingly, the wiretap affidavit mustestablish that it is more likely than not thatcommunications about the alleged crimes will beintercepted from a specified facility or locationduring the thirty-day authorization period, and ifthe affidavit contains any materialmisrepresentations designed to supply probablecause when it would otherwise be lacking, theevidence will be suppressed. C. Necessity

Not only does Title III require a probablecause showing for each facility or location to betapped, but the government must also show thateach tap is necessary to achieve the goals of theinvestigation. Specifically, 18 U.S.C. § 2518(3)(c)requires the government to provide "a full andcomplete statement as to whether or not otherinvestigative procedures have been tried andfailed, or why they reasonably appear to beunlikely to succeed if tried or to be toodangerous." See United States v. Bennett, 219F.3d 1117, 1121 (9th Cir. 2000) ("necessityrequirement exists in order to limit the use ofwiretaps"); United States v. London, 66 F.3d1227, 1237 (1st Cir. 1995) (affidavit needs tooutline the government's reasonable, good faitheffort to use other investigative techniques);United States v. Oriakhi, 57 F.3d 1290, 1298 (4thCir. 1995) (necessity showing must be based onfacts of instant investigation); United States v.Santora, 600 F.2d 1317, 1321-22 (9th Cir. 1979)(spinoff affidavits seeking to tap additionalfacilities must contain a new particularizedshowing of need); United States v. Williams, No.CRIM.A. 99-140, 2000 WL 1273407, *2 (E.D.La. Sept. 5, 2000) ("each wiretap [affidavit],including extensions of existing wiretaps, must beseparately justified as necessary in light of thefacts of a particular case") .

Typically, investigative techniques employedor considered in criminal investigations includethe use of confidential sources/cooperatingwitnesses, the use of undercoveragents/operations, physical surveillance of thesubjects or known locations, the analysis oftelephone records and call data, grand juryinvestigations, and the analysis of documentaryevidence. Some investigative techniques might be


more useful or typical in some investigations thanothers (the analysis of bank records would bemore fruitful in a money laundering case asopposed to a street-level drug conspiracy), and thecourts recognize that some types of investigationsshare "common investigatory problems." SeeUnited States v. Milton, 153 F.3d 891, 895 (8thCir. 1998) ("Although some assertions mightappear boilerplate, the fact that druginvestigations suffer from common investigatoryproblems does not make these problems lessvexing."); United States v. Scala, 388 F. Supp. 2d396, 405 (S.D.N.Y. 2005) (because organizedcrime investigations present similar necessitystatements from one investigation to another, suchsimilarity does not render the affidavit's necessityshowing ineffective).

The courts also recognize that a certain degreeof success with one or more investigativetechniques does not negate the need for thewiretap. See United States v. Canales, 358 F.3d1221, 1225-26 (9th Cir. 2004) (government doesnot have to use all possible informants beforeobtaining a wiretap); Bennett, 219 F.3d at 1122;United States v. Labate, No. S100CR.632(WHP),2001 WL 533714 (S.D.N.Y. May 18, 2001)(informant's cooperation did not negate necessityfinding under circumstances of case). Likewise,the courts do not require that the government takeextraordinary steps to exhaust other investigativeavenues before a wiretap becomes necessary. SeeUnited States v. Yeje-Cabrera, 430 F.3d 1, 10 (1stCir. 2005); United States v. Staves, 383 F.3d 977,982 (9th Cir. 2004) (the government does nothave to release an imprisoned informant in lieu ofusing a wiretap investigation); Indelicato v.United States, 106 F. Supp. 2d 151, 158-59 (D.Mass. 2000) (the government does not have to goto extreme measures, such as offering protectivecustody, to obtain an informant's testimony).

Notwithstanding a body of favorable case law,failure to establish legal necessity is by far themost common reason courts suppress wiretapevidence, and the issue of suppression typicallyarises when an affiant does not pursue factsmaterial to the necessity determination, fails toconsider or employ common investigativetechniques, or misrepresents what investigativeavenues have been pursued. See, respectively,United States v. Aviles, 170 F.3d 863, 867 (9thCir. 1999) (DEA agent's intentional failure todisclose facts is attributable to the FBI affiant);United States v. Salemme, 91 F. Supp. 2d 141,167-69 (D. Mass. 1999) (the prosecutor and the

DEA recklessly disregarded their legal obligationto extract information from the FBI, that if sharedwith them, would have resulted in the wiretapapplications not being approved by the court);United States v. Gonzalez, Inc., 412 F.3d 1102,1111-15 (9th Cir. 2005) (government madelimited use of potentially productive methods,particularly physical surveillance); United Statesv. Blackmon, 273 F.3d 1204, 1211 (9th Cir. 2001)(when affidavit was "[p]urged of misstatements,. . . the remainder of the application, whichcontains generalized statements that would be trueof any narcotics investigation, fails to containsufficiently specific facts to satisfy therequirement of [section] 2518(1)(c))";United States v. Aileman, 986 F. Supp. 1228(N.D. Cal. 1997) (affiant's omissions andmisstatements resulted in suppression of wiretapevidence).

Accordingly, the government's wiretapaffidavit must contain an accurate, particularizedshowing of investigative necessity, based on thefacts of the individual case, and each affidavitneeds to justify the use of electronic surveillancefor every tap sought.

III. ConclusionSince 1968, the use of electronic surveillance

has increased exponentially. In 1991, OEOreviewed 600 requests to seek court-orderedelectronic surveillance. In 2005, OEO reviewedover 2,700 such requests. In recent years, OEOhas seen a growing number of requests to seekelectronic surveillance over facilities using newtechnology, such as voice over internet(VOIP)—telephone service over the internet, andhas witnessed the ever-increasing use of prepaidcellular phones, text-messaging phones, andpagers, by criminals. While Title III, for the mostpart, has withstood the test of time, it is clear thatthe statute needs to brought into the 21st centuryto provide law enforcement with the tools to targetthe ever-changing ways in which criminalscommunicate.˜

ABOUT THE AUTHOR

‘Julie Wuslich is the Chief of the ElectronicSurveillance Unit, and has held that position since1995. She has spoken on electronic surveillanceissues before numerous law enforcement agencyaudiences, advises on electronic surveillance


issues, and has written training materials for aninternational symposium on electronicsurveillance.a

Witness Security and SpecialOperations UnitEileen P. RulemanDeputy Chief, Witness Security and SpecialOperations UnitOffice of Enforcement OperationsCriminal Division

I. Federal Witness Security Program The Federal Witness Security Program

(Program) is one of the most effectiveand successful weapons ever used in

prosecuting persons and groups involved inorganized criminal activity. The testimony ofmore than 8,000 protected witnesses during thepast thirty-six years has resulted in the convictionof members of many major organized criminalgroups.

The Program was created in the 1960s, as aresult of Attorney General Robert Kennedy's waragainst organized crime. In those days, it wasdifficult to prosecute members of majorracketeering organizations because of thegovernment's inability to protect witnesses willingto testify against such dangerous criminals.Criminal organizations were operating withrelative impunity as a result of their ability,willingness, and access to financial resourcesnecessary to intimidate and murder the fewindividuals who could testify against them.However, since the Program's inception, noparticipant who has followed the Program's ruleshas been killed or seriously injured as a result ofhis or her cooperation with the government.

Originally created to overcome the reluctanceof witnesses to cooperate against members of theLa Cosa Nostra (LCN), the Program has provenitself flexible enough to meet the needs of theever-changing nature and wide variety ofwitnesses whom it must serve. Today, such

persons may be witnesses against the LCN, but itis more likely that they are cooperating againstinternational or domestic terrorists, drugtraffickers, violent street or prison gangs, orperpetrators of economic crimes.

The Program is administered by Director,Stephen J. T'Kach, who serves as the designee ofthe Attorney General. Mr. T'Kach, who is anAssociate Director in the Office of EnforcementOperations (OEO), determines which individualsare accepted into the Program, oversees the wide-ranging operations of the Program, and serves asan ombudsman for Program participants. Mr.T'Kach is the second Director in the Program'shistory. Mr. Gerald Shur was the first and hespearheaded the creation of the Program. Thiscontinuity has enabled the Program to remainconsistent in the areas that are essential to its goalsand mission, while providing the flexibilitynecessary for innovation.

The Witness Security and Special OperationsUnit (WSSOU) within OEO is responsible formanaging a variety of operational aspects of theProgram. The WSSOU receives an average of 230applications for witnesses to be admitted into theProgram each year, and accepts approximately160. Over 95% of the witnesses authorized arecriminal associates of the major targets.II. Eligibility

Strict criteria must be met before a person isauthorized for Program services. The Program isused only as a last resort, when no other meanswill suffice to keep alive a key witness in asignificant prosecution affecting the United States.All applications for Program services must besigned personally by the United States Attorney(USA) in the involved federal jurisdiction. Thiscertifies that the USA considers the case to be of


significant importance to justify the extensive useof government resources required to protect thewitness and his or her family members. Thesigned application, which is submitted to OEO forevaluation, analysis, and review, must containsufficient details, and must be accompanied byappropriate documentation, to ensure that fourbasic statutorily mandated criteria are met.• The significance of the case must be clearly

demonstrated.• The importance of the testimony that the

witness will provide, and the lack ofalternative sources for it, must be shown.

• The existence of a bona fide threat against thelife of the witness must be demonstrated.

• Assurance must be given—if the witness is tobe relocated rather than incarcerated—thatany danger the witness might pose to a newcommunity is outweighed by the benefits tobe gained by his or her testimony.Assistant United States Attorneys (AUSAs)

are strongly encouraged to contact theirinvestigative agents prior to submitting anapplication, in order to coordinate the proposedprotection of the witness.

As part of the overall evaluation process, inaddition to a comprehensive criminal backgroundcheck that is conducted on the witness and anyadult family member who is being relocated, theOEO seeks the input of the experts listed below,in each case, before determining whether Programservices are warranted.• Attorneys from the appropriate litigating

component of the Department of Justiceweigh in on the significance of the case,including whether it merits the uniqueservices of the Program.

• Management personnel from the headquartersof the investigative agency sponsoring thewitness must submit a threat assessmentdetailing the threat believed posed to thewitness as a result of cooperation with thegovernment. If the witness, or any of his orher family members, is being relocated in anew community, the agency headquarters alsoprovides an assessment of the risk posed to arelocation community, as well as whether thebenefits to be gained from using the witnessin the prosecution outweigh any such risk.

• Inspectors from the United States MarshalsService (USMS) conduct an interview ofnonprisoner witnesses, as well as any adultfamily member who is being sponsored forrelocation, and provide an assessment ofwhether they are suitable candidates for theProgram. This interview, which allows theUSMS to identify potential problems thatmight prevent successful relocation, isdesigned to ensure that the witnessunderstands what services can and cannot beprovided during Program participation, andthat the witness understands his or herresponsibilities as a Program participant. Theinterviewer also asks the witness what he orshe may have understood to be promised, andclarifies that neither the prosecutor nor theinvestigative agency can make any bindingpromises concerning services provided in theProgram. In addition, any exculpatory orimpeaching admissions memorialized duringthe interview may fall under Brady andGiglio, and AUSAs should make themselvesaware of such statutes to ensure compliancewith any notice or disclosure requirements.

• Psychologists conduct an evaluation of eachwitness who is being sponsored for relocation,as well as any adult family member sponsoredto accompany him or her into the Program. Although the Witness Security Program is

known primarily for its relocation component withthe USMS, which has entered the publicconsciousness through such movies as Eraser andMy Blue Heaven, the fact is that the vast majorityof witnesses who enter the Program are notimmediately given a new identity and placed intoa new community. Rather, 80% of theapproximately 160 new witnesses approved forProgram services each year are prisoner-witnesseswho have been convicted of a crime and mustserve time in the custody of the Federal Bureau ofPrisons (BOP). These prisoner-witnesses areseparated from other prisoners against whom theyare testifying, or prisoners who might pose athreat to them while they are in custody. BOPmaintains separate Protective Custody Units(PCUs), or "prisons within prisons" as they arecommonly known, to house convicted witnesseswho cannot safely be placed in the general inmatepopulation. Each PCU is self-contained to helpensure and maintain security of the witnesses, andthe location of the specific facility in which aprisoner-witness is housed is not publicized.There are stringent rules by which prisoner-


witnesses must abide and, like relocatedwitnesses, those who fail to abide by Programguidelines are subject to removal from theProgram.

Because participation in the Program isvoluntary, both relocated participants andprisoner-witnesses can remove themselves at anytime.

Family members of a prisoner-witness, whoare endangered as a result of the prisoner'scooperation, are eligible for consideration toreceive protection from the USMS through therelocation component while the prisoner isincarcerated.

A witness's participation in the incarcerationcomponent of the Program does not guarantee thatfull Program services of the relocation componentwill be provided upon his or her release fromcustody. Many believe that they can return home,or have alternatives which will be sufficient toprotect them in lieu of the rigorousness of the fullrelocation services of the Program. Approximatelyone-half of prisoner-witnesses receive furtherservices of the Program upon release, according tothe 2006 data.

During the early days of the Program, mostwitnesses who were authorized for services wereU.S. citizens. Today, a significant number ofwitnesses and their family members are foreignnationals. This requires OEO to coordinate theirentry and participation with the Bureau ofImmigration and Customs Enforcement (ICE) inthe Department of Homeland Security, in additionto other agencies.

Special Limited Services is a unique variationof the Program that allows foreign nationalwitnesses who are subject to deportation, and whowould be in danger if they returned to their homecountries, to remain in the United States. Sincethese witnesses are not in danger in this country,full Program services are not required and are notprovided. Special Limited Services may beextended to individuals who have been denied orare ineligible for an S Visa, or individuals who arefacing imminent deportation or detention by ICEwhich poses a serious threat to them while an SVisa application is pending.

As traditional jurisdictional boundaries haveeroded, and crime has become increasinglyinternational in scope, even many small nationshave recognized the need for a mechanism toprotect their witnesses. The Program's Director,

Special Counsel, and WSSOU personnel,frequently provide guidance, expertise, andassistance to foreign governments who areinterested in developing their own methods ofproviding security to witnesses.

A witness who enters the Program maintains aunique and continuing relationship with thegovernment. Once an individual is authorized forProgram services, the sponsoring AUSA mustarrange any telephone calls, pretrial interviews, orother type of contact with the witness through theWSSOU. Even after subsistence allowances andother types of material support are terminated,investigative agencies and prosecuting attorneyswho desire to use their own witnesses mustobserve certain protocols. Once a witness entersthe Program, neither the witness nor any familymember can be used as an informant or witness ina new case without the express prior approval ofOEO. A request to utilize a current or formerProgram witness as an informant must be made inaccordance with the United States Attorneys'Manual (USAM). Former Program participantswho are utilized as informants are the soleresponsibility of the investigative agencyrequesting their assistance, and are not eligible forparticipation in the Program unless they againbecome a witness as defined in 18 U.S.C. §§ 3521-3528. It is a violation of federal law for anyone todisclose or disseminate any information about awitness placed in the Program without the expressapproval of the Program's Director. See Id.

The Program is administered pursuant to theprovisions of the "Witness Security Reform Act of1984," which is codified at 18 U.S.C. §§ 3521-3528. The guidelines established by the AttorneyGeneral concerning the Program are detailed inUSAM 9-21.000.

III. Special OperationsThe Special Operations component of the

WSSOU authorizes the use and targeting offederal prisoners in certain investigations, as setforth in USAM 9-21.050.

IV. ContactsStephen J. T'Kach, Associate Director, Office ofEnforcement OperationsCatherine K. Breeden, Chief, Witness Securityand Special Operations Unit


Eileen P. Ruleman, Deputy Chief for WitnessSecurityJoy Lilly, Deputy Chief for Witness SecurityJoyce E. Proctor, Deputy Chief for SpecialOperationsAll contacts can be reached at 202-514-3684.˜

ABOUT THE AUTHOR

‘Eileen P. Ruleman has been a Deputy Chief ofthe Witness Security and Special Operations Unitof the Office of Enforcement Operations sinceJune 1997. Ms. Ruleman began her tour of dutywith the Witness Security and Special OperationsUnit in 1986. Ms. Ruleman started herDepartment of Justice career in the FederalPrograms Branch, Civil Division, in August1979.a

The Witness Immunity Unit of theOffice of Enforcement OperationsKathleen N. ColemanTrial AttorneyWitness Immunity UnitOffice of Enforcement OperationsCriminal Division

I. Introduction

Despite its name, the Witness ImmunityUnit (WIU) of the Criminal Division'sOffice of Enforcement Operations has a

variety of functions. It is responsible for requestsfor authorization to immunize witnesses, toprosecute previously immunized witnesses, and toresubpoena previously contumacious witnesses.Further, it handles requests within the CriminalDivision seeking waiver of the Department ofJustice's (Department) dual prosecution policy(also known as the Petite Policy), andDepartment-wide requests for authorization toissue subpoenas to attorneys. The WIU is also thepoint of contact when prosecutors contemplateexecuting search warrants at law offices, or intendto indict an attorney. Finally, the WIU coordinatesglobal plea agreements. All of these functions aredetailed in the United States Attorneys' Manual.The forms that are submitted to the WIU can alsobe found online, or can be requested from theWIU.

Other divisions within the Department handleimmunities for cases brought under the statuteswhich those divisions oversee. For example, whenimmunity is sought in a tax case, the request for

authorization is sent to the Tax Division, with aninformational copy faxed to the WIU. In such acase, the WIU will notify the responsible divisionwhether the Criminal Division concurs or objectsto the immunity. In a similar vein, dualprosecution policy requests are handled by thedivisions overseeing the crimes which are thesubjects of the proposed federal prosecution, suchas violations of civil rights or environmental laws.

II. Immunity mattersA. The immunity statute

To the layman, a witness who testifies under agrant of immunity can never be prosecuted for thecrimes which he discusses while testifying, i.e.,the witness has been given "transactionalimmunity." Prior to 1970, there were a number ofimmunity statutes, many of which conferredtransactional immunity. In 1970, Congressreplaced all those statutes with 18 U.S.C.§§ 6001-6006, which provides for "useimmunity." With use immunity, prosecutorscannot make direct or indirect use of immunizedtestimony, except to prosecute the witness forperjury, giving a false statement, or otherwisefailing to comply with the compulsion order. 18U.S.C. § 6003. It is possible to prosecute apreviously immunized witness for crimes relatedto the immunized testimony if it can beestablished that no use has been, or will be, madeof the immunized testimony, but such


prosecutions are extremely rare and can only beauthorized by the Attorney General.B. Seeking authorization to immunize awitness (USAM 9-23.130)

In seeking authorization to apply for acompulsion order, Assistant United StatesAttorneys (AUSAs) should follow the stepsoutlined below.• Complete the compulsion order request form.• Have the United States Attorney sign the

form. • Fax the form to the WIU.

The WIU evaluates the request and sends itsrecommendation to the deciding official. If therequest is approved, an authorization letter isfaxed to the United States Attorney's office(USAO). Once authorization is received, theAUSA files a motion with the court seeking acompulsion order. The statute requires a showingthat a Departmental official approved theapplication for a compulsion order, and for thisreason, most United States Attorneys' officesattach the authorization letter to the motion. C. The Department's evaluation of theimmunity request

Under the immunity statute, the authorizingofficial must conclude that the testimony or otherinformation being sought are necessary to thepublic interest. 18 U.S.C. § 6003 (b)(1). TheDepartment closely focuses on several factors, themost obvious of which is relative culpability.Immunity will not be authorized for a witness whois far more culpable than the person against whomhe will testify. (The classic situation would beimmunizing the armed robber to testify against hisgetaway driver.) In this situation, the Departmentwill insist that the highly culpable witness first beprosecuted before immunity will be considered.

The Department also looks to determinewhether the witness is being investigated byanother district. If so, the AUSA seeking theimmunity will consult with an AUSA in the otherdistrict to determine if there is an objection. Inmany instances, there is no objection because thecrimes under investigation are unrelated to thematters about which the witness will be testifying.If the witness is being investigated for crimesrelated to his proposed immunized testimony, theDepartment ordinarily will refuse to authorize theimmunity unless the witness's testimony is

absolutely essential in an important case, and thetwo districts can work out a procedure in whichthe investigating district is not exposed to theimmunized testimony.

Many AUSAs are unaware of theDepartment's "close family relative exception,"which is set out in the United States Attorneys'Manual at 9-23.211. The purpose of this internalpolicy is to preserve family unity. Accordingly,the Department will reject an application thatseeks to compel testimony from a close relative(such as a parent or sibling) of thetarget/defendant. The policy does not apply if theprosecutor plans to question the relative about abusiness that he operated with thetarget/defendant, or if the testifying relativehimself has culpability. Further, the policy is notapplicable if the matter under investigation hasoverriding prosecutorial concerns. D. Act of production immunity

Occasions arise when a prosecutor seeksbusiness records, which are plainly not protectedby the Fifth Amendment because they are made inthe ordinary course of business, not undercompulsion, and are not "testimonial" in nature,but the witness insists on immunity before he willproduce the records. The witness is asking for an"act of production immunity" because his act ofproducing the records concedes their existenceand his possession of them, and that the recordsare those described in the subpoena. United Statesv. Doe, 465 U.S. 605 (1984). Whether theDepartment will authorize immunity dependsupon the nature of the business entity whoserecords are being sought. When it is a soleproprietorship, as in Doe, immunity will beauthorized. If it is a corporation, even a closelyheld corporation, immunity will not be authorizedbecause corporations are not protected by theFifth Amendment, and the witness who producesthe records is acting in a representative, not in apersonal, capacity. Braswell v. United States, 487U.S. 99 (1988). Likewise, partners in apartnership are considered to be acting in arepresentative capacity. Bellis v. United States,417 U.S. 85 (1974).

If the immunized sole proprietor is thereafterprosecuted, the records that he produced must beauthenticated by an independent witness.Accordingly, act of production immunity shouldnot be considered unless the prosecutor has awitness available who can authenticate therecords.


The Department does not have a specialauthorization letter for act of productionimmunity, and, consequently, sends the standardauthorization letter to the USAO. As a result, it isimportant that the motion for a compulsion ordermake clear that the immunity being sought islimited to the act of production of records. Forexample, if the AUSA who obtained thecompulsion order left the USAO, his successormay be left with the task of responding to amotion by the indicted sole proprietor whoclaimed that he was granted full-blown immunity. E. States are bound by federal statutoryimmunity

AUSAs sometimes contact the WIU becausecounsel for a witness is concerned that a stateprosecutor could make use of the immunizedfederal testimony. This concern is unfoundedbecause, when a witness is immunized under thefederal immunity statute, the state prosecutor islikewise prohibited from making direct or indirectuse of the testimony. See Murphy v. WaterfrontCommission, 378 U.S. 52 (1964); Malloy v.Hogan, 378 U.S. 1 (1964).F. Informal immunity

Unlike the statutory immunity that is handledby the WIU, informal immunity (also known asletter immunity or pocket immunity) is handled inthe USAOs. Informal immunity is nothing morethan a contract between the prosecutor and thewitness, and testimony given under the contract isnot compelled because it is given voluntarilypursuant to the terms of the contract. The terms ofthe contract are negotiated by the parties, and caneven allow for derivative use of the informationprovided. Informal immunity is not binding onany other federal district, or state, because theywere not parties to the contract.G. Immunity for a defense witness

Immunity will not be authorized for a defensewitness unless there are extraordinarycircumstances. For example, authorization will begranted if it is determined that the defendantwould be deprived of a fair trial if the defensewitness is not immunized. Should immunity for adefense witness be contemplated, the AUSAshould contact the WIU to alert the Department.

H. Requests to prosecute a previouslyimmunized witness (USAM 9-23.400)

It is not necessary to obtain Departmentalauthorization to prosecute a witness whoseimmunity was limited to the act of production, orto prosecute a witness for perjury or falsestatements committed during immunizedtestimony. Before a previously immunizedwitness can be prosecuted for any crimes relatingto his immunized testimony, however, theAttorney General must personally authorize theprosecution. Prosecutors who contemplateprosecuting a previously immunized witnessshould contact the WIU for guidance on thematerials which must be assembled forsubmission to the Attorney General in order toestablish that the evidence which will be usedcomes from "legitimate source(s) whollyindependent of the compelled testimony."Kastigar v. United States, 406 U.S. 441, 460(1972).I. Requests to resubpoena a previouslycontumacious witness (USAM 9-11.160)

When an immunized grand jury witnesschooses to continue in contempt, he remains incustody during the lifetime of the grand jury. See28 U.S.C. § 1826. The witness has the "keys tothe jail in his hands," and can purge himself of thecontempt by choosing to testify. Should thewitness persist in his refusal to testify and thegrand jury expires, the United States Attorneywho wishes to resubpoena him before a successivegrand jury must obtain authorization from theDepartment. The request, in narrative form,should be telefaxed to the WIU. These requestsare generally not approved unless it appears thatthe witness will testify if called before the newgrand jury, or that the investigation is highlyimportant and the witness has essentialinformation.

III. The dual prosecution policy (USAM9-2.031)

The dual prosecution policy (also known asthe Petite Policy) applies whenever a federalprosecutor seeks to prosecute an individual forcrimes based on substantially the same acts ortransactions involved in a prior state or federalprosecution. Some prosecutors are under theimpression that the policy does not come into playif a case is "split" with the local prosecutor. Anexample of a split case occurs when the state


seizes drugs from the defendant and charges himwith possession, and the United States chargeshim with possession of the gun that was seized atthe same time. This assumption is not correct, andthe federal prosecutor must obtain theDepartment's authorization to proceed with thegun case if the state case involved attachment ofjeopardy.

Requests for waiver of the dual prosecutionpolicy should be in memo or letter form andtelefaxed to the WIU. It is strongly recommendedthat the United States Attorneys' Manual bereviewed beforehand, so that the request addressesthe factors set forth therein.

In reviewing the request, the WIU willdetermine whether the proposed federal case issubstantially based on the prior prosecution and, ifso, whether waiver of the policy is appropriate.Waiver is granted if it is determined that there is acompelling federal interest in prosecuting thedefendant and that the prior proceeding did notvindicate the federal interest. In order to evaluatea request, the WIU must be advised of the factsbehind the criminal incident, the charges that werefiled in the prior prosecution, the prior sentence,the proposed federal charges, and the likelyfederal sentence. The request should includebackground information on the defendant,including his criminal history, and any othersignificant information that would support aconclusion that there is a compelling federalinterest in prosecuting him. Upon completion ofits review, the WIU sends a recommendation tothe Assistant Attorney General, who is thedeciding authority.

IV. Issuing subpoenas to attorneys(USAM 9-13.410)

A single official in the Criminal Divisionhandles all requests seeking authorization to issuesubpoenas to attorneys for information relating tothe representation of clients. These requests,whether criminal or civil, must be submitted onthe appropriate form and telefaxed to the WIU.The request should make clear whether testimonyor documents, or both, will be sought under thesubpoena. If documents will be sought, thewording of the documents demand must be set outin an attachment to the request.

Because subpoenas to attorneys are extremelysensitive, efforts should first be made to obtain theinformation from another source. If that is not

feasible, and a subpoena is necessary, thesubpoena should be narrowly drawn and call forinformation that is not within the protection of theattorney-client privilege. When it is believed thatan exception to the privilege applies (such as thecrime/fraud exception), the request should set outthe reasons in support of that belief.

Not all subpoenas to attorneys come under theauthorization requirement. If the subpoena seeksinformation that is unrelated to the representationof a client (such as information about the businessoperations of a firm that, by happenstance, isengaged in the practice of law, or informationregarding the attorney's personal activitiesunrelated to his practice of law), there is no needto contact the Department. Further, if the attorneyis willing to supply the information without beingserved with a subpoena, authorization is notneeded. A so-called "friendly subpoena," in whichan attorney witness indicates that he is willing toprovide the information but asks for a subpoena,does not eliminate the authorization requirement.If a subpoena is involved, and the informationsought relates to the representation of a client,authorization must be obtained. V. Searches of premises of subjectattorneys (USAM 9-13.420)

Executing a search warrant at a law office of asubject attorney is an extremely sensitive matter.(For a definition of subject attorney, see USAM 9-13.420.) Such a search cannot be carried outwithout the express approval of the United StatesAttorney or pertinent Assistant Attorney General.Further, the Criminal Division (through the WIU)must be consulted. If exigent circumstances do notallow for prior consultation, the WIU can benotified after the search.

When a law office search is firstcontemplated, it is strongly suggested that theprosecutor telephone the WIU to discuss suchthings as whether the subject attorney is a solepractitioner, is in practice with nonsubjectattorneys, or practices at a corporation'sheadquarters. If computers will be searched,prosecutors should be prepared to discuss whetherthey are on a network that is shared withnonsubject attorneys. The prosecutor should alsoadvise the WIU of the taint procedures which willbe put in place. Following this initial telephonecontact, the WIU can provide prosecutors withsample language that can be used in searchwarrant affidavits, and sample taint procedures.


Draft copies of the affidavit, search warrant,and taint procedures, should be faxed to the WIU,along with a form that has been signed by theUnited States Attorney.

VI. Searches for documentary materialsheld by a disinterested third partyattorney (USAM 9-19.221; 9-19.210)

Searches for documentary materials that areheld by an attorney who is a disinterested thirdparty are governed by 28 C.F.R. § 59.4. Suchsearches are extremely rare since the materialssought can usually be obtained by a subpoena.These searches cannot be carried out unlessspecifically authorized by the Department.Request for authorization should be submitted tothe WIU.

VII. Notice of intent to indict anattorney (USAM 9-2.032)

Many AUSAs are unaware of thisrequirement, which calls for notification to theDepartment when an attorney will be criminallycharged. Notification is not required in all cases,and the United States Attorneys' Manual shouldbe consulted to see whether circumstances of acase call for notification. For example, notice isnot required if the indictment has already beenreviewed by the Department, such as in RacketeerInfluenced and Corrupt Organizations or taxcases. Notification is required if the attorney isalleged to have served as counsel for an ongoingcriminal enterprise or organization. It is alsorequired if the charges are based on the attorney'sacts on behalf of a client, and the client will becalled to testify against him pursuant to acooperation, nonprosecution, or similaragreement.

The notice is submitted on a form that istelefaxed to the WIU. Because the form isabbreviated, it is suggested that it be accompaniedby a memo setting out relevant information, suchas whether the prosecutor, or others in the USAO,have had prior dealings with the attorney.

VIII. Global plea agreements (USAM 9-27.641)

These agreements arise when a criminaldefendant (usually a corporation) has committedcriminal acts in a number of judicial districts.When the defendant seeks to resolve the criminal

charges by entering into a guilty plea, thecorporation's legal advisers will ask for a promisefrom the government that charges will not bebrought by other districts in the future. Because asingle USAO does not have the authority to bindall other USAOs, the Assistant Attorney Generalin the Criminal Division must authorize thepromise of no further prosecutions. The WIUcoordinates global plea agreements and forwardsthe requests to the Assistant Attorney General.

In the usual situation, civil charges will alsobe filed against the defendant, and the defensewill seek to resolve the civil and criminal mattersat the same time. Resolution of the civil aspectsare handled within the Civil Division, but thecriminal prosecutor coordinates with thegovernment's civil attorney so that both mattersare resolved simultaneously.

An important first step in a global pleaagreement is to determine whether any otherfederal districts are investigating the defendantand, if so, whether there are objections to thepromise not to further prosecute. All USAOs mustbe notified of the proposed plea agreement and begiven an opportunity to object. This notification isusually done by e-mail, which can be sent by theoffice seeking to enter into the global agreement,or by the Executive Office for United StatesAttorneys. The request that is sent to the WIUmust include the text of the notification e-mail,and the objections, if any, that were registered.

In addition to the plea agreement itself, thesubmission to the WIU must include a memosetting forth the facts, the charges against thedefendant, the proposed disposition, and reasonssupporting the conclusion that the resolution is inthe best interests of the United States. TheCriminal Division must also be advised whetherthe Civil Division has authorized the civilsettlement.

As a practical point, make certain that thenumber of the paragraph in the plea agreementthat promises no further prosecution is notchanged after the request is sent to the Departmentbecause the authorization letter will make specificreference to the numbered paragraph (forexample, "I hereby approve the terms of the PleaAgreement, including paragraph 5 . . . .").

IX. ConclusionThe staff of the WIU consists of veteran

attorneys with expertise in the area of privilege.


They are always available to provide guidance,and welcome telephone inquiries at 202-514-5541. Further, the WIU is aware that litigationoften involves issues that arise unexpectedly,necessitating Departmental authorizations on shortnotice. Prosecutors who face short deadlinesshould feel free to contact the WIU to ask forexpedited handling of their requests.˜

ABOUT THE AUTHOR

‘Kathleen N. Coleman has been with OEO'sWitness Immunity Unit for fifteen years, and hasdeveloped an expertise in attorney-clientprivilege. Prior to OEO, she was in the

Commercial Litigation Branch of the CivilDivision, where she handled cases under the FalseClaims Act. From 1979 to 1985, she was in theOffice of Special Investigations in the CriminalDivision, where she did denaturalization anddeportation cases of persons who engaged in actsof persecution during WWII. During thatassignment, her duties included gatheringevidence in foreign countries, such as the SovietUnion. From 1978 to 1979, she was in theNarcotics and Dangerous Drugs Section. From1976 to 1978, she was an Assistant AttorneyGeneral in the U.S. Virgin Islands, where shehandled both criminal and civil cases. From 1972to 1976, she was an Assistant District Attorney inPhiladelphia, where she tried cases ranging frommisdemeanors to homicides.a

Office of Enforcement Operations'Policy and Statutory Enforcement UnitMary HealyAttorneyOffice of Enforcement OperationsCriminal Division

I. Introduction

The Policy and Statutory EnforcementUnit (PSEU) is responsible for numerouslegal support functions on behalf of the

U.S. Attorneys' offices and the Criminal Division.Chief among its functions are the processing,evaluating, and making recommendations on thefollowing requests.• To subpoena members of the news media. • To close judicial proceedings in criminal

cases. • To disclose grand jury material to state or

local law enforcement officers for the purposeof enforcing state law.

• To grant S nonimmigrant status to eligiblealien cooperators. Besides these primary duties, the Unit also

reviews and comments on proposed legislation by

Executive Branch agencies, proposed expansionsof law enforcement authority by federal agencies,and proposed regulations promulgated by theBureau of Prisons. It also provides advice to U.S.Attorneys' offices and Criminal Divisioncomponents when a Department of Justice(Department) employee is subpoenaed orproduction of Department records is sought in afederal or state proceeding. Further, the PSEU isresponsible for processing requests by CriminalDivision components to disclose tax returninformation in nontax criminal cases andprocessing requests to accept nolo or Alford pleasin criminal cases within the supervision of theCriminal Division. Finally, the Unit also providesadvice in various substantive areas of the law,including issues relating to criminal jurisdiction,interstate property crimes, crimes affectinggovernment operations, the Interstate Agreementon Detainers, mental competency and the insanitydefenses, and certain civil matters relating toCriminal Division operations.


II. Subpoenas for testimony or recordsof members of the news media;interrogations, arrests, and criminalcharges against members of the newsmedia; and search warrants directed atmembers of the news media or othersholding documentary materials inrelation to some form of publiccommunication

In all matters within the supervisoryjurisdiction of the Criminal Division, the PSEUreviews all requests for authorization to issuesubpoenas directed to members of the news mediaor for telephone toll records of members of thenews media. The Unit also examines all requestsfor authorization to interrogate, arrest, orcriminally charge a member of the news media foran offense related to the performance of officialmedia duties. These requests are governed by 28C.F.R. § 50.10. Additionally, the PSEU has jointresponsibility, together with the Computer Crimeand Intellectual Property Section (CCIPS) of theCriminal Division, for reviewing requests to applyfor a search warrant directed at the seizure of workproduct or other documentary materials possessedby anyone holding them in relation to some formof public communication, including journalists.These requests are statutorily limited by thePrivacy Protection Act, 42 U.S.C. §§ 2000aa-2000aa-12. A. Subpoenas for testimony or records ofmembers of the news media

One of the most sensitive and complex areasof the PSEU's work involves the review ofproposals from United States Attorneys' offices toissue subpoenas directed to members of the newsmedia for testimony or evidence or for theirtelephone toll records. In recognition of thehistorical and enduring importance of freedom ofthe press in American society, Department policydirects that government attorneys shouldordinarily refrain from imposing upon members ofthe news media any form of compulsory processwhich might impair the news gathering function.Members of the Department must balance thepublic's interest in the free dissemination of ideasand information with the public's interest ineffective law enforcement and the fairadministration of justice in all cases. SeeUnited States Attorneys' Manual (USAM) 9-13.400; 28 C.F.R. § 50.10.

The Attorney General's authorization isnormally required before the issuance of anysubpoena to a member of the news media or forthe telephone toll records of a member of thenews media. 28 C.F.R. § 50.10(e). However, incases where the media member, or his or herrepresentative, agrees to provide the materialsought and that material has been published orbroadcast, the United States Attorney or theresponsible Assistant Attorney General mayauthorize issuance of the subpoena. Thereafter,the authorizing office must submit a report to theOffice of Public Affairs, detailing thecircumstances surrounding the issuance of thesubpoena. Id.

Before issuing a subpoena to a member of thenews media, or for telephone toll records of amember of the news media, Department attorneysmust take all reasonable steps to attempt to obtainthe information through alternative sources ormeans. Id. § 50.10(b). In addition, Departmentattorneys must first attempt negotiations with themedia aimed at balancing the interests of the trialor grand jury with the interests of the mediabefore issuing a subpoena to a member of thenews media. Id. § 50.10(c). Negotiations with theaffected media member must also precede anyrequest to subpoena the telephone toll records ofany member of the news media, so long as theresponsible Assistant Attorney Generaldetermines that such negotiations would not posea substantial threat to the investigation at issue. Id.§ 50.10(d). As noted above, besides beingrequired by the regulation, where the materialsought to be obtained or authenticated has alreadybeen published or broadcast in some form,obtaining the media's prior agreement to providethe material or authenticating testimony, eithervoluntarily or in response to a subpoena, maybenefit the United States Attorney's office byobviating the need for obtaining the AttorneyGeneral's prior approval to issue the subpoena.

If negotiations with the media fail or thedesired material has not been previously publishedor broadcast, the Attorney General's authorizationis required. Department attorneys seeking to issuea subpoena to a member of the news media, or fortelephone toll records of a media member, mustsubmit a written request for such authorization tothe PSEU. The request must contain thefollowing.• A summary of the facts of the prosecution or

investigation.


• An explanation as to how the informationsought to be subpoenaed is essential to theinvestigation or prosecution.

• A description of the attempts to obtain thevoluntary cooperation of the news mediathrough negotiation.

• An explanation as to how the proposedsubpoena will be narrowly fashioned to obtainthe necessary information in a minimallyintrusive and burdensome manner.

Such requests should be submitted as far inadvance of the relevant proceeding as possible.

Specific principles applicable to authorizationrequests for subpoenas to members of the newsmedia are set forth in 28 C.F.R. § 50.10(f)(1)-(6),and for subpoenas for telephone toll records ofmembers of the news media in 28 C.F.R.§ 50.10(g)(1)-(4). The Department considers therequirements of 28 C.F.R. § 50.10 applicable tothe issuance of subpoenas for the journalisticmaterials and telephone toll records of deceasedjournalists. In light of the intent of the regulationto protect freedom of the press, news gatheringfunctions, and news media sources, therequirements of 28 C.F.R. § 50.10 do not apply todemands for purely commercial or financialinformation unrelated to the news gatheringfunction. Id. § 50.10(m). Any questions regardingthe regulation, or otherwise concerning subpoenasto the media, should be directed to the PSEU at(202) 305-4023. B. Interrogations, arrests, and criminalcharges against members of the news media

Except in cases involving exigentcircumstances, Department attorneys must obtainthe express approval of the Attorney General priorto the interrogation or arrest of a member of thenews media in connection with either of thefollowing two instances.• An offense which the media member is

suspected of committing during the course of,or arising out of, his or her coverage orinvestigation of a news story.

• An offense which the media member issuspected of committing while he or she wasengaged in the performance of his or herofficial duties as a member of the news media. The Attorney General's authorization must

also precede the presentment of an indictment to agrand jury or the filing of an Information against a

member of the news media for any such offense.See 28 C.F.R. § 50.10(h)-(l). Further guidancemay be obtained from the PSEU.C. Search warrants directed at members ofthe news media or others holdingdocumentary materials in relation to someform of public communication

Search warrants directed at the seizure of anywork product materials or other documentarymaterials possessed by a person reasonablybelieved to have a purpose of disseminating to thepublic a newspaper, book, broadcast, or othersimilar form of public communication, aregoverned by the Privacy Protection Act of 1980(PPA), 42 U.S.C. §§ 2000aa-2000aa12. The PPAprohibits the use of such search warrants exceptunder limited circumstances specified within theAct and provides that violations of the Act mayresult in the imposition of civil penalties againstthe government. Relevant provisions of the PPA,the text of which is set forth at Criminal ResourceManual 661, are summarized at USAM 9-19.240.Government attorneys should be particularlyaware of the potential for triggering theprotections of the PPA in executing computersearches. Some computers that may contain nonprotected evidence of a crime, such as childpornography, often also contain legitimate PPA-protected materials, such as draft newsletters ontopics of public interest.

All applications for warrants issued under thePPA must be authorized by a Deputy AssistantAttorney General of the Criminal Division.Questions and requests for approval regardingcomputer-related search warrants should bedirected to the CCIPS of the Criminal Division.Whenever proposed computer-related searchesinvolve the traditional media, CCIPS willcoordinate its review with the PSEU. Questionsand requests for approval regarding all noncomputer media-related searches should bedirected to the PSEU.

III. Closure of judicial proceedingsPursuant to 28 C.F.R. § 50.9, government

attorneys may not move for, or consent to, theclosure of any judicial proceeding without theexpress prior authorization of the Deputy AttorneyGeneral. The PSEU assists U.S. Attorneys' officesby providing advice in the area of court closures,reviewing requests to close proceedings and,when appropriate, recommending that the Deputy


Attorney General grant the authorization necessaryto move or consent to closure.

Both federal law and Department policyrecognize a strong presumption against closingproceedings, rooted in both the Sixth Amendmentright of the accused to a public trial and otheradversary proceedings, see, e.g., Waller v.Georgia, 467 U.S. 39 (1984), and in the qualifiedFirst Amendment right of the press and public toaccess a criminal trial and related hearings, see,e.g., Globe Newspaper Co. v. Superior Court, 457U.S. 596 (1982). Closure of a courtroom inconnection with a criminal proceeding mayconstitutionally occur under limited circumstanceswhere closure is narrowly tailored towardpreserving an important interest. See, e.g., Waller,467 U.S. at 47; Globe Newspaper, 457 U.S. at606-07; Ayala v. Speckard, 131 F.3d 62, 70 (2dCir. 1997). Such overriding government interestsmay include protecting the safety of an informantor the integrity of an ongoing investigation, see,e.g., United States v. De Los Santos, 810 F.2d1326, 1334 (5th Cir. 1987), or protecting theidentity of an undercover police witness, see, e.g.,Ayala, 131 F.3d at 72. These general principles areencapsulated at 28 C.F.R. § 50.9, which sets forththe Department's policy and the applicableprocedures and policies governing courtroomclosures.

Any government attorney wishing to close aportion of a judicial proceeding, or to consent to alitigant's request for closure, must first submit awritten request seeking the Deputy AttorneyGeneral's authorization to do so. Whenever closureis sought in a case or matter under the supervisionof the Criminal Division, the request, and anyrelated questions, should be directed to the PSEU.In addition to setting forth the relevant factual andprocedural background, the request should includea detailed explanation of the need for closure,addressing each of the factors set forth in 28C.F.R. § 50.9(c)(1)-(6). In particular, the requestshould address how an open proceeding will createa substantial likelihood of danger to specifiedindividuals, how ongoing investigations will bejeopardized, or how a person's right to a fair trialwill be impaired. The request should also considerwhether there are any reasonable alternatives toclosure, such as delaying the proceeding, ifpossible, until the reasons for closure cease toexist. The request should be submitted sufficientlyin advance of the proceeding in question to allowtime for its adjudication within the Department.

Assuming that authorization to close theproceedings is granted, government attorneyshave an obligation to review the records of theclosed proceedings every sixty days to determinewhether the reasons for closure still apply. 28C.F.R. § 50.9(f). As soon as the justification forclosure ceases to exist, the government must file amotion to have the records unsealed. Id. U.S.Attorneys' offices should acknowledge thisobligation in their closure requests and advise thePSEU when the records are unsealed. The PSEUwill periodically seek updates from U.S.Attorneys' offices regarding the status of closedproceedings.

IV. Disclosure of grand jury material tostate and local law enforcement officials

Prior to submitting any request to a court todisclose grand jury material to a state or local lawenforcement official pursuant to Federal Rule ofCriminal Procedure 6(e)(3)(E)(iv), a United StatesAttorney must request permission, in writing,from the Assistant Attorney General of theDivision with supervisory jurisdiction over thematter that was presented to the grand jury. SeeUSAM 9.11-260. See also Advisory CommitteeNotes on the 1985 Amendments ("The Committeeis advised that it will be the policy of theDepartment of Justice under this amendment [nowcodified at F.R.Cr.P. 6(e)(3)(E)(iv)] to seek suchdisclosure only upon approval of the AssistantAttorney General in charge of the CriminalDivision."), available at http://www.law.cornell.edu/rules/frcrmp/NRule6.htm. For any matterfalling under the supervisory jurisdiction of theCriminal Division, the PSEU has responsibilityfor reviewing such requests and recommendingtheir approval or denial to the Deputy AssistantAttorney General who has been empowered toauthorize disclosure.

It is the policy of the Department to sharegrand jury information with state or local officials,for the purpose of enforcing state law, whenever itis appropriate to do so. See USAM 9-11.260.Nevertheless, government attorneys should keepin mind that this policy is subject to the AdvisoryCommittee notes to the amended Rule 6(e) that"Federal grand juries [should not] act as an arm ofthe State," and that a substantial need should existto support the disclosure. The need to investigateor to prosecute ongoing or completed state orlocal felony offenses will generally be deemedsubstantial. Id. Government attorneys considering


seeking a disclosure order under this rule mustalso take into account the potential impact ofdisclosure upon any pending or anticipated federalinvestigations or prosecutions. See, e.g., USAM 9-2.031 (Dual and Successive Prosecution Policy["Petite Policy"]).

United States Attorneys proposing to seek anorder allowing the disclosure of grand jurymaterials to a state or local law enforcementofficial should provide the following information,in writing, to the PSEU. • Title of the grand jury investigation and the

target(s) involved.• Origin, purpose, and general nature of the

grand jury investigation. • Status of the grand jury investigation and any

resulting prosecution(s). • State(s) for which authorization to disclose

grand jury information is sought and officialsto whom information would be disclosed.

• A listing of the specific information ormaterials sought to be disclosed.

• General nature of potential state offenses andexistence, if any, of ongoing stateinvestigations or other efforts regarding thegrand jury matters sought to be disclosed.

• Extent, if any, of state knowledge orawareness of the federal grand juryinvestigation, and extent of prior stateinvolvement, if any, in federal grand juryproceedings under Rule 6(e)(3)(A)(ii).

• Impact of disclosure to state on ongoingfederal grand jury investigative efforts orprosecutions, including an analysis of anyPetite Policy implications which may result,see USAM 9-2.031.

• Whether the state has a substantial need forthe grand jury information or materials soughtto be disclosed.

• Whether reasonable alternative means existthrough which the state might obtain theinformation contained in the grand jurymaterials sought to be disclosed.

• Whether disclosure would violate a federalstatute (e.g., 26 U.S.C. § 6103), regulation, ora specific Departmental policy.

• Whether disclosure would reveal classifiedinformation to persons without an appropriate

security clearance, compromise thegovernment's ability to protect an informant,or improperly reveal trade secrets.If the request is authorized, the government

attorney seeking judicial authorization to disclosethe grand jury material should include in theproposed order a provision that further disclosuresby the involved state officials shall be limited tothose persons who require disclosure of thematerial to assist in their enforcement of statecriminal laws.

As with all other matters within its purview,the PSEU invites AUSAs to contact the Unit at(202) 305-4023 with any general or case-specificquestions concerning grand jury disclosurepursuant to Rule 6(e)(3)(E)(iv).

V. The S Visa Program: arranging forcooperating aliens to remain in theUnited States

The PSEU is responsible for reviewing allapplications for S nonimmigrant visa status andall subsequent applications for adjustment ofstatus to legal permanent resident, andrecommending approval or disapproval of suchapplications to the Deputy Assistant AttorneyGeneral of the Criminal Division delegated withauthority to certify the applications to theDepartment of Homeland Security (DHS). ThePSEU also coordinates the development andimplementation of the S visa program inconjunction with sponsoring law enforcementagencies and the DHS.A. The S Visa Program

The Violent Crime Control Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796 (1994), amendedthe Immigration and Nationality Act, Pub. L. No.82-414, 66 Stat. 208 (1952) (codified in scatteredsections of 8 U.S.C.) to establish a new "S"nonimmigrant visa classification available to alimited number of aliens who supply critical,reliable information necessary to the successfulinvestigation and/or prosecution of a criminalorganization, or who supply critical, reliableinformation concerning a terrorist organization, ifthe alien is eligible to receive a State Departmentreward under the Rewards for Justice Program.See 8 U.S.C. § 1101(a)(15)(S); 22 U.S.C. § 2708.

Essentially, the S visa program provides ameans for ensuring that an alien witness orinformant who would otherwise be inadmissible


or subject to removal from the United States, forexample, due to his or her prior criminal history,may lawfully remain in the United States forpurposes of assisting law enforcement authorities.The program also helps to protect witnesses whowould likely be subject to danger, as a result oftheir cooperation, if they were deported. Once thePSEU notifies the DHS's Immigration andCustoms Enforcement (ICE) that an S visaapplication is pending with OEO, the alien will notbe deported prior to a final decision beingrendered on the application. While the applicationis pending, an alien may be given employmentauthorization and, subject to ICE discretion, maybe released from ICE detention if in custody.

The S visa program grants S nonimmigrationstatus for up to three years to alien witnesses orinformants who: 1) possess critical, reliableinformation about a criminal organization orenterprise; 2) are willing to supply, or havesupplied, such information to federal or state lawenforcement authorities or a federal or state court;and 3) whose presence in the United States isessential to the success of an authorized criminalinvestigation or prosecution of an individualinvolved in the criminal organization or enterprise.See 8 U.S.C. § 1101(a)(15)(S). No more than 200aliens meeting these criteria may be granted Snonimmigrant status per fiscal year. Id.§ 1184(k)(1). An additional fifty slots are availablefor aliens who provide critical, reliableinformation concerning a terrorist organizationand who qualify for a reward under theDepartment of State's rewards program. Id. Seealso 22 U.S.C. § 2708(a). These annual numericallimitations have never been reached. The parents,spouse, and children of an eligible alien witness orinformant are also eligible for S nonimmigrantstatus, and such derivative applicants do not counttoward the numerical limits.

Characteristics rendering an alien inadmissibleto the United States, such as drug trafficking, acriminal conviction, the commission of a crime ofmoral turpitude, or unlawful entry into theUnited States, are waived by the DHS when Snonimmigrant status is granted. Aliens whocomply with the conditions of the S visa programare eligible to apply for adjustment of status tolawful permanent resident. B. Applying for S Visas

S Visa applications must be sponsored by alaw enforcement agency (LEA) and endorsed byan agency headquarters official and by the

United States Attorney for the district in which therelevant investigation or prosecution occurred. See8 C.F.R. § 212.4. Federal and state lawenforcement agencies, courts, United StatesAttorneys, and local prosecutors, are considered tobe law enforcement agencies for purposes of Svisa sponsorship. However, prosecutors andcourts may not wish to serve as the officialsponsor of an S visa application because of theobligations assumed by the sponsoring agency,including monitoring the alien, reporting to theCriminal Division regarding the alien'scompliance with the terms of S visa status after Snonimmigrant status is granted, and requestingpermission to apply for adjustment of status tolawful permanent resident.

To apply for an S visa, a sponsoring LEAshould submit a completed application package tothe PSEU for processing. Applications may beobtained from the PSEU or from ICE, but are alsogenerally available through the sponsoring LEA.Based upon the information contained in theapplication, the PSEU assesses whether an alien iseligible for an S visa and which grounds ofinadmissibility set forth in 8 U.S.C. § 1182require waiver.

In determining whether an S visa isappropriate, the Criminal Division balances thevalue of an alien's cooperation against the factorsmaking an alien inadmissible. To enable thisassessment, the sponsoring LEA and the U.S.Attorney's office endorsing the application shouldensure that the application contains: 1) a thoroughand accurate description of the nature and importof the investigation or prosecution; 2) a detailedexplanation of the nature, extent, and import, ofthe alien's cooperation, including the results of thealien's cooperation; and 3) complete informationabout each applicable ground of inadmissibility,including any extenuating circumstances. ThePSEU also uses the information contained in theapplication to obtain the views of the CriminalDivision components with jurisdiction over theunderlying investigation or prosecution as to thesignificance of the matter or case in which thealien is providing assistance.

Once the PSEU completes its analysis, theOEO makes a recommendation to a DeputyAssistant Attorney General of the CriminalDivision who has been delegated authority by theAssistant Attorney General to decide whether ornot the application merits certification.Applications certified for approval by the


Criminal Division are forwarded to the DHS,which has the authority to waive the applicablegrounds of inadmissibility and grant the S visa.

Upon granting the application, the DHSnotifies the OEO and the sponsoring LEA. Whilethe alien is in S visa status, the sponsoring LEA isrequired to monitor the alien and file quarterly andannual reports with the PSEU, notifying theCriminal Division of the alien's whereabouts andwhether the alien has complied with the conditionsof S visa status. See 8 U.S.C. § 1184(k)(4)(conditions of status). C. Adjustment of status to lawfulpermanent resident

An alien may remain in S visa status for nomore than three years. Prior to the end of thatperiod, the sponsoring LEA may apply foradjustment on behalf of the alien (and any eligiblefamily members) to lawful permanent residentstatus. See 8 U.S.C. § 1255(j). The LEA shouldsubmit an adjustment application form andsupporting memoranda, together with currentNational Crime Information Center reports for thealien and any eligible family members, directly tothe PSEU. (The LEA submits a separate set ofdocuments to the DHS.) On the basis of theadjustment application materials, the CriminalDivision determines whether the alien hascomplied with the conditions of S visa status andwhether adjustment of status is appropriate, andforwards its recommendation to the DHS, whichrenders a final decision. Notably, if the necessary

documents to seek adjustment of status are notfiled before the end of the three year period, thealien may be deported and the sponsoring LEAmust reinitiate the S visa application process.D. Additional information

Additional information regarding the S visaprogram may be found in the United StatesAttorneys' Manual at 9-72.000, in the CriminalResource Manual at 1861-1867, or by contactingthe PSEU at (202) 305-4023. ˜

ABOUT THE AUTHOR

‘Mary Healy has been an attorney with PSEUsince January 2006. Before then, she spent time asan investigative attorney with the Department'sOffice of Inspector General and was a trialattorney with the Criminal Section of the CivilRights Division. She also clerked for U.S. DistrictCourt Judge A. David Mazzone for the District ofMassachusetts.a

Ms. Healy would like to thank Stanley Rothstein,Chief of PSEU, and Deborah Sorkin, DeputyChief of PSEU, for their contributions to thisarticle.

Special Administrative Measures Jennifer UnderrinerAttorneyOffice of Enforcement OperationsCriminal Division

I. Overview

Special Administrative Measures (SAMs)are restrictions which the AttorneyGeneral can request to limit inmate

communications that might disclose classifiedinformation or facilitate serious acts of violence orterrorism. Consideration of the appropriate use ofSAMs is the responsibility of every Assistant U.S.Attorney handling a national security case,

terrorism-related matter, or dangerous violentcriminal, and should be part of the overallplanning and case strategy at the prechargingstage. SAMs may become appropriate at laterstages, during trial or post conviction, even if theyare not sought or obtained at the detention hearingor other initial stage of the prosecution. Thus,prosecutors must remain vigilant for appropriatecircumstances which call for the imposition ofSAMs at any stage of the prosecution.

OEO's staff is responsible for reviewingrequests to impose SAMs on Federal Bureau ofPrisons (BOP) inmates, pursuant to 28 C.F.R.§ 501.2 (to prevent the unauthorized disclosure ofNational Security Information (NSI) classified


information), 28 CFR § 501.3 (to prevent acts ofviolence and terrorism), and pursuant to theinherent authority of the Attorney General (fornon-BOP federal pretrial detainees). These specialmeasures may include particular restrictions onvisitors, mail and telephone usage, andpreclearance of attorneys and paralegals. SAMsare designed to prevent inmates from contactingcoconspirators outside of the prison and directingthem to disclose classified information, harmwitnesses, or incite others to commit acts ofterrorism. SAMs are generally valid for a periodof one year, unless modified or vacated.

II. Authorization processIn order to obtain a SAM on an inmate, either

pretrial or postconviction, the United StatesAttorney must make a written request to theDirector of the Office of Enforcement Operations(OEO). OEO staff then prepares a draft documentoutlining the restrictions, based on the facts andrequirements presented. The draft is sent to theUnited States Attorney's office for review and anyrequests for modification of the provisions areaddressed by OEO staff. A final proposeddocument is prepared and sent through theappropriate channels in the Criminal Division andthe Deputy Attorney General's Office, and finallyto the office of the Attorney General for approval.SAMs are rather lengthy documents, often inexcess of fifteen pages. In the original SAMdocuments, subsequent renewal and modificationauthority is delegated to the Assistant AttorneyGeneral of the Criminal Division. Subsequentrenewals of SAMs are authorized at the writtenrequest of the United States Attorneys' offices.Any interim modifications which lessenrestrictions on the inmate may be authorized bythe Director of OEO.

III. Additional informationIn addition to processing the SAMs (originals,

extensions, and modifications, as well as vacatingthem when requested by the USAO), OEOprovides legal advice and input into SAM policydecisions. The basic provisions of the SAMProgram continue to be the subject of regulardebate, discussion, and revision between theCriminal Division and the Deputy AttorneyGeneral's Office, in conjunction with variousother Department of Justice (Department)components, including the BOP, U.S. MarshalsService, FBI, and U.S. Attorney's offices. This has

resulted in the proposed revision of modeldocuments and streamlined policies for themonitoring and control of SAM inmatesthroughout the federal system.

Because many inmates currently held underSAM conditions of confinement are relevant tothe war on terror, many individual SAM casespresent new and challenging issues that must beresolved through discussion and the developmentof new strategies, yet still must be handledexpeditiously. This process requires ongoingmeetings among the Criminal Division and theother components mentioned above. OEO hasbeen involved in many SAM-related policydecisions, including review, analysis, andagreement on revisions to the restrictions on theinmate communications' section of the modelSAM, and analyzing and commenting on aseparate BOP-proposed rule to grant the wardenability to limit terrorist inmates' communications.Additionally, OEO provides legal research andadvice regarding challenges to SAM provisionsand the interpretation of SAM provisions in case-specific matters. Finally, OEO fields responses toother initiatives, including a G8 proposalintroduced by the Department of HomelandSecurity to reduce radicalization in prison.

IV. ConclusionWhile rare, SAMs are an essential part of the

Department's efforts to combat violent crime andacts of terror. OEO can provide furtherinformation regarding the BOP regulations andpolicies used to limit prisoner communications,clarify the criteria for SAMs and the procedures tofollow in implementing and renewing SAMs, andhelp address the constitutional issues related to theimposition of SAMs.˜

ABOUT THE AUTHOR

‘Jennifer Scott Underriner is an attorney withthe Director's Office at the Office of EnforcementOperations. Ms. Underriner handles a variety ofmatters, including Special AdministrativeMeasures. She has been at the Office ofEnforcement Operations for the past five years.Prior to that, Ms. Underriner worked in privatepractice overseas for a number of years.a


The International Prisoner TransferProgramPaula A. WolffChief, International Prisoner Transfer UnitOffice of Enforcement OperationsCriminal Division

I. Introduction

Although the International PrisonerTransfer Program has been in existencesince 1976, it remains a program about

which most federal prosecutors have scantknowledge or understanding. This article willprovide an overview of the program, discuss howa transfer request is processed, identify the criteriathat are used when making a transferdetermination, describe how the transferredsentence is administered in the receiving country,and discuss the role of federal prosecutors in thetransfer program. See also http://www.usdoj.gov/criminal/oeo/index.htm.

II. BackgroundThe transfer program was formally

established in November 1976, after the bilateralTreaty on the Execution of Penal Sentencesbetween the United States and Mexico enteredinto force. Treaty on the Execution of PenalSentences, Nov. 25, 1967, U.S.-Mex., 28 U.S.T.7399. A major impetus for the United States todevelop an international prisoner transfer programwas the well-publicized reports of Americannationals being incarcerated abroad, especially inMexico, under abusive and inhumane conditions.In addition, "Midnight Express," first a popularbook and then later a film about an American incustody in horrible conditions in a Turkish prison,fueled the drive for Congress to pass legislationauthorizing the transfer program.

Since signing the Mexican Treaty, theUnited States has entered into other bilateraltransfer treaties and has acceded to twomultilateral transfer conventions, the Council ofEurope Convention on the Transfer of SentencedPersons (the COE Convention) in 1985, and theInter-American Convention on Serving CriminalSentences Abroad (the OAS Convention) in 2001.Together these international agreements give the

United States prisoner transfer relationships withalmost seventy countries. Although theUnited States prefers not to enter into any newbilateral transfer treaties because of the time andcost involved in their negotiation and passage, it isalmost certain that, in the future, additionalcountries will accede to the COE and OASConventions, thereby increasing the number ofcountries with which the United States has atransfer treaty relationship.

These transfer treaties permit theUnited States and its treaty partners to return aforeign national, who is sentenced and imprisonedin their country, to the prisoner's home country toserve the time remaining on his sentence. Thetransfer program works in two directions. First, acountry may receive one of its nationals from aforeign country which has convicted andsentenced the national for committing a criminaloffense. That country accepts responsibility forenforcing or administering the transferredsentence. Second, a country may return foreignnationals who have been convicted and sentencedfor a crime to their home country to serve theirsentences. The country sending or transferring theforeign national is referred to as the "sending" or"sentencing" country, whereas the countryreceiving the prisoner and administering thetransferred sentence is referred to as the"receiving" or "administering" country.

Most of the prisoners the United States hastransferred to foreign countries have beenconvicted in federal courts. A majority of thesetransferred federal offenders have committed adrug offense. In addition to transferring federaloffenders, state offenders are also eligible to applyfor transfer. Currently, all states have legislationpermitting them to participate in the transferprogram. However, when a foreign national is in astate prison, he must first obtain the approval ofthe state before his application can be reviewedand approved by the Federal Government.Although the Department of Justice frequentlyapproves state cases, if a compelling federalinterest exists or if treaty requirements have notbeen satisfied, it will deny the transfer request.Because many states do not actively participate inthe transfer program, the Department continues to


engage in ongoing efforts to increase stateparticipation.

In recent years, the United States hasprocessed approximately 1,500 transferapplications each year. Of this total, theUnited States denies about sixty percent of theseapplications, with the denial rate being highest forMexican applications, in part, because so many ofthese applicants are considered to be domiciliariesof the United States. In 2005, the United Statestransferred 281 foreign nationals back to theirhome countries and accepted the return of eighty-four Americans, most of whom were incarceratedin Mexican prisons. During the early years of thetransfer program, the United States transferredmany more American nationals back to theUnited States than foreign nationals to their homecountries. With the advent of the FederalSentencing Guidelines and the abolition of parole,the situation reversed itself in the early 1990s.Now the United States transfers about three timesmore foreign nationals out of the country thanAmericans back into the United States. Notsurprisingly, because of our shared borders, alarge percentage of these transfers are withMexico, followed by Canada. This net outflow ofprisoners results in a significant cost savings tothe United States.

III. Benefits of the InternationalPrisoner Transfer Program

When some individuals first learn of thetransfer program, they inquire about themotivation for the United States to participate inthe program. Skeptics wonder what benefit theUnited States realizes from transferring a criminal,who has violated United States laws, to his homecountry and, conversely, what interest is servedwhen the United States receives an Americanfrom a foreign government after that Americanhas been convicted of committing a serious crimeabroad.

The United States first considered enteringinto prisoner transfer treaties in the early 1970s inresponse to reports that some Americansimprisoned abroad had been convicted in unfairjudicial proceedings or had been subjected totorture and inhumane conditions while confined inforeign prisons. The United States, like most othercountries, is protective of its citizens and isconcerned about poor or unfair treatment accordedits nationals in other countries, even when thesenationals may have acted unlawfully. As the

United States began to explore the prisonertransfer option, it recognized that other benefits,besides protecting the health, well-being, andrights of its nationals, could be obtained byprisoner transfer. Foremost among these benefitswas that genuine rehabilitation, and eventualreintegration of a prisoner into his home society,were much more likely to occur when the prisonerserved his sentence in his own country, where hewould be near his family, friends, and a familiarculture. In addition, the United States realized thatthe imprisonment of foreign nationals created asignificant administrative burden on its prisonstaff by requiring the prisons to adapt theirpractices and procedures to prisoners havingdiffering languages, customs, culturalbackgrounds, and dietary requirements. TheUnited States believed that prisoner transfer couldreduce this burden. Moreover, the United Statesrecognized that confining the nationals of anothercountry created diplomatic tension with theforeign country and that returning the foreignnational to his home country would reduce thistension.

As the United States began to participate inthe prisoner transfer process, it also recognizedthat there were two other significant benefits tothe program. The first was a law enforcementbenefit while the second was an economic one.Normally, after a foreign national completes theservice of a sentence in the United States, he isreferred to the Bureau of Immigration andCustoms Enforcement (ICE) for deportation orremoval proceedings. Frequently, after theremoval order has been issued, such prisoners arereturned to their home country, withoutnotification to the home country of their arrival,and without providing the home country with anypertinent information about the individual, such asthe specifics of the criminal conduct in which theindividual engaged or any continuing risks thatthe individual might pose. As a result, the homecountry often knows nothing about the personreleased into its midst. Consequently, it is unableto take precautionary steps to ensure the safety ofits populace, help the former prisoner to receivenecessary medical or rehabilitative assistance, orreintegration into its society.

In many instances prisoner transfer ispreferable to traditional removal. When a prisoneris transferred, the United States provides thereceiving country with detailed information aboutthe prisoner, including official accounts of thecriminal conduct committed. Unlike the removal


of a former prisoner, a transferred prisoner isplaced directly in the custody of law enforcementofficials from the receiving country. This transferprocedure permits the receiving country tomonitor the prisoner's activities, address anytreatment or rehabilitative needs of the prisoner,assist in the eventual reintegration of the prisonerinto society, and take appropriate steps to protectsociety from the prisoner. This last benefit isparticularly significant for certain types of repeator predatory offenders, such as sexual offenders.Many countries, such as Canada, have systems tomonitor these offenders, and to provide notice tocommunities when such an offender is living intheir neighborhood.

Although not a factor motivating thenegotiation of the transfer treaties, theUnited States recognizes that these agreementsalso create an economic benefit to both theFederal Government and the state governmentsparticipating in the transfer program, by reducingthe number of prisoners confined within theirprisons. Approximately twenty-seven percent ofall federal prisoners are foreign nationals andstates also have significant foreign populations.For every prisoner transferred, the federal or stategovernment recognizes a savings equal to the costof imprisoning that person for the periodremaining on the sentence.

IV. Administering the TransferProgram and making the transferdecision

Fourteen separate international agreements, aswell as federal implementing legislation, 18U.S.C. §§ 4100-4115, provide the legal authorityfor the International Prisoner Transfer Program.Congress authorized the Attorney General to actas the central authority for the program, and theAttorney General delegated his authority to theOffice of Enforcement Operations (OEO) withinthe Criminal Division. See 18 U.S.C. § 4102; 28C.F.R. §§ 0.64-1, 0.64-2. The InternationalPrisoner Transfer Unit (IPTU), a unit within OEO,oversees the daily operation of the program. Itreceives considerable assistance from the FederalBureau of Prisons (BOP) in various stages of thetransfer process.

Prisoner transfer cannot occur unless thesentencing country, the receiving country, andperhaps most critical, the prisoner, consent to thetransfer. The decision whether or not to approvetransfer is a discretionary one that must be made

by both the sentencing country and the receivingcountry. Under the International Prisoner TransferProgram, a prisoner does not have a "right" totransfer to his home country, nor can thesentencing country force the prisoner to transfer.

Although the United States approves virtuallyall transfer applications submitted by Americansimprisoned abroad, it is more selective whenreviewing the transfer applications of foreignnationals, approving approximately forty percentof these transfer applications. The overallapproval rate is lowered significantly by the largenumber of Mexican nationals who apply for andare denied transfer. The lower approval rate forMexican nationals is attributed to two mainfactors. First, the transfer treaty with Mexicoprohibits the transfer of domiciliaries and manyMexicans satisfy the treaty domiciliary test byhaving lived in the United States for over fiveyears. Second, the United States knows thatMexico applies a number of restrictivecriteria—most notably that the remaining sentencecannot exceed five years—and will denyapplicants who do not satisfy these criteria. TheUnited States continues to express its concernover the restrictive criteria used by Mexico buthas been unsuccessful in having Mexico modifyits criteria.

Each transfer application submitted to theDepartment presents a unique set of facts thatmust be evaluated on its individual merits.However, for the Department to approve a transferapplication submitted by a foreign nationalincarcerated in a United States prison, it must firstcollect pertinent information from the responsibleUnited States Attorney's office (USAO) and lawenforcement agency, and then determine if thecase satisfies the requirements of the applicabletreaty and federal implementing legislation. See18 U.S.C. §§ 4100-4115. The basic requirementsthat must be satisfied by all successful applicantsare as follows.• The prisoner must be convicted and

sentenced.• The prisoner, sentencing country, and

receiving country, must consent to thetransfer.

• The prisoner must be a national of thereceiving country.

• A minimum period of time must remain onthe sentence, typically at least six months.


• The judgment and conviction must be final,with no pending appeals or collateral attacks.

• No charges or detainers may be pendingagainst the prisoner in the sentencing country.

• Dual criminality must exist (the crime ofconviction must also be a crime in thereceiving country).

Depending on the applicable treaty, there mayalso be additional requirements.

In addition to the treaty and statutoryrequirements, the IPTU has developed a set ofguidelines that assists it in evaluating eachtransfer request. These guidelines focus on fourbroad areas, with the first being the likelihood ofsocial rehabilitation. One of the major goals of thetransfer program is to return the prisoner to hishome environment where, hopefully, there isfamilial and peer support, for in this type ofenvironment, the prisoner has the best chance ofsuccessful rehabilitation and reintegration intosociety. In addition, since most foreign nationalprisoners are deported when they are releasedfrom custody, it may not make sense to allowthem to remain in a foreign prison where theymust adjust to a society different from the one towhich they will ultimately be deported. To assessthe likelihood of social rehabilitation of theprisoner, the IPTU examines various facts thatinclude the following. • The strength of the prisoner's family and other

social ties to the sentencing and receivingcountries.

• Whether the prisoner accepted responsibilityfor his criminal conduct.

• Cooperation with law enforcement.• The criminal history of the prisoner.• The seriousness of the offense.• The role of the prisoner in the offense.• The presence of aggravating and mitigating

circumstances.• The prisoner's remaining criminal ties to the

sentencing and receiving countries.Thus, a first time offender who had a minor rolein a criminal offense and has strong family andsocial ties in the receiving country is a much morelikely transfer candidate than a career offenderwho has family in the United States and has livedhere for many years.

The second focus of the guidelines, and one ofparticular interest to the USAOs, is on lawenforcement concerns. These include thefollowing.• The seriousness of the offense, including if

public sensibilities would be offended by thetransfer.

• Any public policy issues that would beimplicated by the transfer.

• The possibility that the transfer wouldfacilitate the prisoner's renewed associationwith his criminal associates in his homecountry.

• Possible sentencing disparity in the homecountry (of greatest concern for the mostserious offenses).

• Whether law enforcement or the prosecutorneed the prisoner for pending or future trials,investigations, or debriefings.

• The existence of unpaid fines, assessments,and restitution.The third major concern that is examined is

the likelihood that the prisoner will return to theUnited States. Allowing a foreign national toserve his remaining sentence in his home countrymakes sense only if the prisoner will remain in hisown country after release. A fundamental reasonfor the transfer is the belief that rehabilitation ismost likely to occur in the prisoner's homeenvironment, an objective that would not berealized if the prisoner returns to the sentencingcountry. A number of factors are considered inmaking this determination, including thefollowing.• The strength of the prisoner's ties to the

United States.• The strength of the prisoner's ties to his home

country.• The location of the prisoner's family.• Previous deportations and illegal entries.• Previous prisoner transfers.With respect to this last factor, it is the policy ofthe Department to deny all transfer requests if theprisoner participated in a previous prisonertransfer.

The final concern, which arises infrequently,is whether the transfer presents any serioushumanitarian concerns. Such concerns typically


involve the terminal illness of the prisoner or aclose family member. Although humanitarianconcerns are never viewed in isolation, it ispossible that when compelling humanitarianconcerns are present, a transfer will be approvedunless outweighed by other negative variables.

After considering all legal requirements andusing these guidelines to evaluate the unique factsin each case, the United States will decide whetherto approve the transfer request. In those caseswhere the United States denies the request, it willinform all pertinent parties and notify the prisonerthat, provided that there will be at least six monthsremaining on the sentence, he can reapply fortransfer in two years. Occasionally the denial maybe based on one factor, such as a pending appeal,which will probably cease to be an impediment totransfer in less than two years. In those situations,the IPTU will entertain an earlier reapplicationand frequently will reconsider the case without aspecific request.

When the United States, after confirming thatall statutory and treaty requirements have beensatisfied, decides to approve the case, the nextstep is to inform the prisoner's home country andto request their decision on the transfer request. Ifthe receiving country approves the transfer, thenext step is for the IPTU to make arrangementsfor a consent verification hearing to be held. Thishearing, mandated by 18 U.S.C.§ 4107 andconducted by a federal magistrate, is held toconfirm that the prisoner consents to the transferand understands the full consequences of thetransfer. If the prisoner gives his consent to thetransfer, the BOP makes arrangements with theforeign country to send escorts to theUnited States to accompany the prisoner on hisreturn and then moves the prisoner to a prisonfacility near the departure point.

With respect to Americans who aretransferring back to the United States, BOP willsend escorts to return the prisoner to theUnited States, where the prisoner will remain inBOP custody pending a review of the transferredsentence by the United States Parole Commission.The Parole Commission is responsible forreviewing the sentence and applying thesentencing guidelines to the transferred sentenceto determine a release date for the prisoner. 18U.S.C. § 4106A. If the projected release date hasalready passed, BOP will release the prisoner;otherwise BOP will retain custody of the prisoneruntil his sentence has been successfully served.

V. Administration of the sentence in theforeign country

When a prisoner is transferred, theresponsibility for administering the sentencebelongs exclusively to the receiving country. Thesentencing country, however, retains the power tomodify or vacate the sentence, including thepower to grant a pardon. Under most of thetreaties, the receiving country will continue theenforcement of the transferred sentence. Suchcontinued enforcement will be executed under thelaws and regulations of the receiving country,including any provisions for the reduction of theterm of confinement by parole, conditionalrelease, good-time release, or otherwise. Underthe French and Turkish bilateral treaties and theCOE Convention, the receiving country has theadditional option of converting the sentence,through either a judicial or administrativeprocedure, into its own sentence. When a sentenceis converted, the receiving country substitutes thepenalty under its own laws for a similar offense.The receiving country, however, is bound by thefindings of facts insofar as they appear in thejudgment, and it cannot convert a prison term intoa fine or lengthen a prison term. Only a fewcountries have elected to convert transferredsentences. The United States has adopted thecontinued enforcement method of administeringthe transferred sentence.

Some assume that when a sentence istransferred, the prisoner will always serve thesame period of time in prison in his home countrythat he would have served if he had remained inthe United States. As a practical matter, however,this is not usually the case. Sometimes the actualtime that the transferred prisoner spends in prisonin the receiving country may be less than the timehe would have served in the sentencing country.This disparity appears most often in transfers toCanada and many European countries, especiallyin drug cases where there is an opportunity forparole. Other times, because of differences in theavailability of prison credits, the prisoner mayspend more time in prison in his home country. Ofparticular interest to federal prosecutors is theinformation provided to the Department thatindicates that most transferred Mexican nationalsserve sentences which closely approximate thesentences they would have served had theyremained in the United States. Furthermore, dueto changes in Mexican law, Mexican prisonerswho have committed drug offenses frequently


discover that because of the difference in prisoncredits awarded, they will spend a longer periodof time in custody in a Mexican prison than if theyhad remained in the United States.

Although it is possible that some transferredprisoners may serve less time in prison, such aresult is neither unexpected nor inconsistent withthe goals of the transfer program. TheUnited States and its treaty partners recognized atthe time they entered into these internationalagreements that the administration of the sentenceby the receiving country, which involved applyingcriminal laws unique to that country, could resultin the prisoner serving less prison time than if hehad remained in the sentencing country. Thesesame countries, however, were willing to acceptthis result in return for the ability to have theirforeign nationals transferred. It is important torealize that it is not unusual for a returningAmerican to serve less time in an American prisonthan he would have served if he had remainedincarcerated in the sentencing country. Thus, itwould place the United States in an awkwarddiplomatic position to accept this benefit for itscitizens, yet object to a transfer of a foreignnational because he might experience a similarlybeneficial sentencing outcome.

VI. Role of the United States Attorneys'offices in the Transfer Program

An USAO may be faced with issuessurrounding the prisoner transfer program at twodistinct phases of the criminal process. First, theissue of a possible prisoner transfer may ariseduring plea negotiations. It is not uncommon,during plea negotiations, for a foreign national toask the USAO to guarantee that he will betransferred in return for a guilty plea. Because thediscretion to grant or deny transfer requests isvested in the Attorney General, the USAO iswithout the power to make this promise. TheUSAO, however, can represent that it will supportthe application, or that it will not oppose thetransfer. It should be clear in the agreement thatany representation is being made by the particularUSAO, and not by the Department as a whole. SeeUSAM § 9-35.100.

The second occasion when the USAO may beinvolved in the transfer program is during thepostsentencing phase of the case when the transferapplication is being processed. To ensure athorough, fair, and principled review of eachapplication, the IPTU collects and evaluates

pertinent information from various sources,including input from law enforcement agencies.Among the most important information that theIPTU collects for each case are comments fromthe prosecuting USAO. Soon after receiving thecase, an IPTU analyst will fax an inquiry sheet tothe USAO seeking its views on the requestedtransfer, and asking if there are any pendingappeals or collateral attacks. The form alsoprovides space for comments and the USAO isalways free to submit additional documentation tosupport its views. As noted by former AssistantAttorney General Michael Chertoff, now head ofthe Department of Homeland Security, it is criticalthat the USAO provide timely responses to theseinquiries. See Memorandum to all USAOs, datedAugust 7, 2002, from Michael Chertoff, AssistantAttorney General. The IPTU, recognizing thestrong interest that the USAOs have in the casesthey have prosecuted, carefully reviews allcomments that the USAOs submit, and considersthese comments to be critical information inrendering its transfer decision.

Over the years, many USAOs have providedthoughtful and informative responses to IPTUinquiries. The IPTU considers legitimate lawenforcement concerns raised by USAOs veryseriously, and in most situations, these concernswill cause denial of the transfer request. Problemsarise, however, when the USAO fails to providecase-specific reasons for opposing the transfer,and instead registers only generic complaintsabout the transfer program. Such complaintstypically express a general dislike of the program,a belief that the prisoner should serve his sentencein the United States, an unsupported belief that theprisoner will return to the United States andcommit a new offense, a concern that the prisonerwill serve a shorter term in the foreign country, ora distrust of the integrity of the foreign prisonsystem.

As discussed above, standing alone, the factthat the prisoner may serve less time in a foreignprison does not usually justify denying a transferrequest. Nor are concerns about the integrity ofthe prison system of our treaty partners a basis todeny a transfer request. Since the majority of thetransfer requests come from Mexican inmates,some USAOs have voiced concerns about theintegrity of the Mexican prison system. Althoughproblems have existed in the Mexican criminaljustice system, the current government has takensubstantial steps to combat and reduce corruption.From the information available to the Department,


there appears to be little or no support tosubstantiate the view that transferred prisoners areable to buy or negotiate a lesser sentence inMexico. To reduce the potential for corruption,Mexico generally limits its transfer approvals tolow security, first-time offenders who are fromlow-to-middle socioeconomic class, and who haveno connection to a drug cartel or organized crime.Mexico has instituted this policy because itbelieves that such inmates, due to their lack ofresources and connections, are less likely to be inthe position to take advantage of any corruptionexisting in the system.

The Department has little information thatwould substantiate the belief that a transferredprisoner will return to the United States andcommit new crimes. It has been our experiencethat offenders who are transferred to distantlocales, especially to countries in Europe or Asia,are unlikely to reappear in the United Statesfollowing their release from confinement abroad.Although there is no guarantee against recidivismfor any category of offender, the possibility that aforeign national will return to the United Statesfollowing completed service of his sentence at aprison in his home country can be greatlyminimized by ensuring that inmates obtainremoval orders prior to transfer, and by limitingapprovals to those candidates who have strongfamily ties to their home countries and who haveminimal or no prior criminal records. The IPTU,in conjunction with the Department of HomelandSecurity, ensures that all Mexican nationals have aremoval order before they are transferred toMexico.

Finally, a blanket policy of objecting totransfer without a substantial basis to do so wouldbe inconsistent with the treaty obligations of theUnited States. The treaties and conventionsgoverning the transfer of prisoners express aforeign policy determination of the United Statesthat prisoner transfer should be available toforeign nationals incarcerated here, just as itshould be available to American nationalsincarcerated abroad. Furthermore, since theprisoner transfer treaties are part of United Stateslaw, the United States has an obligation to give agood faith consideration to each case.

VII. ConclusionFor thirty years, the United States has

participated in the International Prisoner TransferProgram. As a result, thousands of qualifiedforeign nationals have been returned to their homecountries to serve their criminal sentences. It isexpected that these numbers will increase as morecountries accede to the two existing prisonertransfer conventions and as the states becomemore active participants in the program. Althoughtransfer is not appropriate for all inmates, theprisoner transfer program does offer significantrehabilitative, law enforcement, and diplomaticbenefits in many cases.˜

ABOUT THE AUTHOR

‘Paula A. Wolff has been Chief of theInternational Prisoner Transfer Unit in the Officeof Enforcement Operations of the CriminalDivision of the United States Department ofJustice since September 2000. She was a TrialAttorney in the Terrorism and Violent CrimeSection from 1996 to 2000, and in the GeneralLitigation and Legal Advice Section from 1986 to1996, where she was Acting Deputy Chief from1994-1996.a


Gambling Devices and LegislativeHistory UnitGladys WilsonChief, Gambling Devices and LegislativeHistory UnitOffice of Enforcement OperationsCriminal Division

The Office of Enforcement Operations'(OEO) Gambling Devices andLegislative History Unit (GDLHU)

engages in two very different functions. Thelegislative history function of the Unit is of utmostimportance to criminal prosecutors, as it isdesigned to assist the United States Attorneys'offices (USAOs) and Criminal Division personnelin understanding Congress's intent behind thepassage of federal criminal legislation. The officeprepares legislative histories of all federalcriminal statutes enacted into law. The Unitmaintains histories on all criminal statutesassigned to the Criminal Division from 1940 tothe present and has histories on file of majorenactments prior to 1940, including three statutesfrom the first Congress.

A typical legislative history compilationincludes the Bill in all of its forms.• House and/or Senate Report.• Debate pages from the Daily Congressional

Record.• Similar Bills from the current session and

from the immediate past Congress withattendant Reports.

• Hearings. The Unit performs research within the

compiled legislative histories for the USAOs andother high ranking government officials, whenrequested. The staff also assists personnel withinthe Criminal Division, the Department of Justice,and other government agencies in the surroundingWashington, D.C., area perform their research.These legislative histories are not available to thepublic.

The GDLHU recently compiled in-depthlegislative histories for a number of public laws,including the Justice for All Act of 2004, Pub. L.No. 108-405, 118 Stat. 2260, and the Violence

Against Women and Department of JusticeReauthorization Act of 2005, Pub. L. No. 109-162,119 Stat. 2960. Legislative histories regarding theUSA PATRIOT Act, Pub. L. No. 107-56, 115Stat. 272 (2001), and Sarbanes-Oxley Act of 2002,Pub. L. No. 107-204, 116 Stat. 745, werecompiled as soon as documents were available.These documents have been instrumental inassisting several Assistant United States Attorneyswith case preparation.

As its second function, the Gambling DevicesSection has jurisdiction over 15 U.S.C. § 1173,which pertains to gambling registration ofmanufacturers and dealers. The Gambling DevicesAct of 1962, 15 U.S.C. §§ 1171-78, requires anyperson who possesses or receives gamblingdevices to register with the GDLHU before thedevice enters interstate commerce. When theapplicant's complete information is received, theregistration becomes effective. During CalendarYear 2005, the Section processed approximately2,500 requests for registration under the Act. Theoffice also answers fax or telephone inquires andoffers assistance to other federal agencies and stateand local law enforcement agencies regardinggambling registration. Information pertaining tothe statute and registration function of the Unit isavailable on-line at http://www.usdoj.gov/criminal/oeo/gambling.˜

ABOUT THE AUTHOR

‘Gladys Wilson is the Chief, Gambling DevicesRegistration Unit in the Office of EnforcementOperations and has been employed with theDepartment of Justice for thirty-six years.a


Office of Enforcement Operations (OEO)

Law Enforcement Tools Review Process and Statutory and/or Regulatory Citation

Approval Requirements

Electronic Surveillance Unit[(202) 514-6809]Interception of Wire, Oral, and/orElectronic Communications

18 U.S.C. 2516(1) allows, with Attorney General delegation, approval of requests to apply for court-orderedwire and/or oral communications by Department officials starting at Deputy Assistant Attorney General(including Acting), and can be approved as high up as Attorney General. (The Attorney General hasdelegated this authority to all Assistant Attorneys General, but only Deputy Assistant Attorneys General inthe Criminal Division.) While 18 U.S.C. 2516(3) does not require Department approval for an application foran order to intercept electronic communications, Department policy (set out in the U.S. Attorneys' Manual)requires such approval (similar to above) for all electronic communications except for numeric pagers.

Interception of Wire, Oral, and/orElectronic Communications - Roving

18 U.S.C. 2518(11) provides that these requests must be approved by an Assistant Attorney General(including Acting) or higher.

Video Surveillance Pursuant to Attorney General order, an OEO Associate Director (or higher) must approve the proposed useof certain video surveillance, including consensual video surveillance and non-consensual video surveillancewhere a court order will be required to be obtained because the conduct to be viewed and/or recorded evincesa reasonable expectation of privacy.

Consensual Monitoring ofNon-Telephonic Conversations in Sensitive Circumstances

Pursuant to Attorney General memorandum, in order for investigative agencies to utilize non-telephonicconsensual monitoring in certain listed sensitive circumstances, such as the investigation of a high-rankingfederal or state official, an OEO Associate Director (or higher) must approve the proposed monitoring.

Emergency Title III and/or PenRegister/Trap-and-Trace Device

18 U.S.C. 2518(7) and 18 U.S.C. 3125 allow for the emergency use of Title III electronic surveillance andemergency pen registers/trap-and-trace devices, respectively, where an emergency situation exists involvingcertain limited factors, including an imminent danger of death or serious bodily injury to any person,conspiratorial activities characteristic of organized crime, and/or an immediate threat to a national securityinterest. The emergency interception of wire, oral, and/or electronic communications is first reviewed inOEO, but then must be approved by the Attorney General, Deputy Attorney General, or Associate AttorneyGeneral. (OEO always contacts a Deputy Assistant Attorney General before any further action is taken.) Anemergency pen/trap can be approved by a Deputy Assistant Attorney General or higher. (The emergencypen/trap provision includes in its definition of emergency situation any ongoing attack on certain protectedcomputers.)

Witness Immunity Unit[(202) 514-5541]Use Immunity for Prospective Grand Jury and Trial Witnesses

Pursuant to 18 U.S.C. 6001-6005 and 28 CFR 0.175, requests from the United States Attorneys' offices,Department components, and congressional committees for immunity in matters assigned to the CriminalDivision are reviewed in OEO, then submitted to the Assistant Attorney General for signature. (Any DeputyAssistant Attorney General may sign.) For immunity requests assigned to other Divisions, a concurrencememorandum is prepared for the signature of the Assistant Attorney General/DAAG. See also USAM 9-23.000, et seq.

Attorney Search Warrant Pursuant to USAM 9-13.420, approval to seek a warrant to search the premises of an attorney who is thesuspect, subject, or target of an investigation must be obtained from the United States Attorney or pertinentAssistant Attorney General. The USAM requires consultation with OEO's Witness Immunity Unit, whichwill prepare all necessary memoranda for the signature of the Assistant Attorney General/DAAG.



Search Warrant Where DocumentaryMaterial is Held by a DisinterestedThird Party in a ConfidentialRelationship - Where the Party is anAttorney

Pursuant to 28 CFR 59.4 and USAM 9-19.220, et seq., and only in those cases where the supervisoryresponsibility for the matter is in the Criminal Division, requests must be submitted to OEO for review priorto applying to the court for a search warrant for documentary material in the hands of a disinterested third-party attorney who is in a confidential relationship with the person against whom the evidence is sought. ADeputy Assistant Attorney General must approve the request. Should the disinterested third party not be anattorney, this review is conducted in OEO's Policy and Statutory Enforcement Unit. (See infra.)

Dual Prosecution Pursuant to USAM 9-2.031, OEO makes recommendations regarding the requested waiver of theDepartment's Petite policy to allow prosecution of a defendant for the same act or transaction for which he orshe had already been prosecuted by the state or federal governments. Approval for a Petite waiver must beobtained from the Assistant Attorney General/DAAG.

Attorney Subpoena Pursuant to USAM 9-13.410, all requests for grand jury or trial subpoenas that seek information from anattorney relating to the representation of a client are reviewed in OEO, with final action on the request by theAssistant Attorney General/DAAG. (This requirement relates to both criminal and civil matters.)

Global Plea Agreement Pursuant to USAM 9-27.641-.644, OEO reviews and coordinates proposed multi-district plea agreements,and makes recommendations to the Assistant Attorney General/DAAG, who must make the final decision.

Prosecution of Previously ImmunizedWitness (Kastigar)

Pursuant to USAM 9-23.400, OEO reviews requests to prosecute previously immunized witnesses andprepares an in-depth analysis/recommendation and action memorandum for the signature of the AttorneyGeneral.

Subpoenaing Contumacious WitnessBefore Successive Grand Juries

Pursuant to USAM 9-11.160, OEO reviews the request to subpoena a contumacious grand jury witness andprepares a recommendation for the Assistant Attorney General/DAAG.

International Prisoner TransferUnit [(202) 514-3173]Prisoner Transfers, and Overseeingthe International Prisoner TransferProgram

Pursuant to 18 U.S.C. 4102 and 28 CFR 0.64-1 and 0.64-2, OEO oversees the International Prisoner TransferProgram. OEO Associate Directors (and higher) have the authority to approve or disapprove requests for thetransfer of American prisoners from foreign countries to the U.S. to complete their sentences. The AssociateDirectors also approve/disapprove requests regarding foreign prisoners who wish to transfer from Americanprisons to their own countries. The U.S. has treaty relationships with over 60 countries regarding thisprogram.

Witness Security and SpecialOperations Unit [(202) 514-3684]Witness Security Application(excluding DC Short-Term RelocationProgram)

Pursuant to 18 U.S.C. 3521, et seq., the Attorney General is responsible for all matters relating to therelocation and protection of witnesses in certain federal and state proceedings. This authority has beendelegated by the Attorney General, and is exercised by the Associate Director of OEO who has beendesignated the Director of the Witness Security Program, and, in his absence, the Director of OEO.Decisions regarding accepting witnesses into the Program and terminating participation in the Program, aswell as major policy decisions, are handled at this level. Pursuant to USAM 9-21.800, the Chief of OEO'sWitness Security and Special Operations Unit (or higher) must approve requests from federal investigativeagencies to utilize in certain investigative activities relocated witnesses or former protected witnesses (oranyone relocated because of a witness's cooperation) as informants. If the action is to include the consensualmonitoring of non-telephonic conversations of such a person, then an OEO Associate Director (or higher)must approve this aspect of the proposed action.

Witness Security Application (DC Short-Term Relocation Program)

Pursuant to 18 U.S.C. 3521, et seq., OEO oversees the DC Short-Term Relocation Program (formerly Short-Term Protection Program), a derivative of the Witness Security Program established in 1991 to combat theproblem of gang-related violence and intimidation against witnesses in Superior Court cases in the District ofColumbia. Decisions regarding this Program are handled as above.



Use of Prisoner in InvestigativeActivities

Pursuant to USAM 9-21.050, the Chief of OEO's Witness Security and Special Operations Unit (or higher)must approve requests from federal investigative agencies to utilize in certain investigative activities, or totarget, prisoners who are in the custody of the Attorney General (Bureau of Prisons, Marshals Service). If theaction is to include the consensual monitoring of non-telephonic conversations of such a person, whether theprisoner is a consenting party or non-consenting target of the investigation, then an OEO Associate Director(or higher) must approve this aspect of the proposed action.

Use of Bureau of Prisons Employee in an Undercover Capacity

Pursuant to USAM 9-21.050, the Chief of OEO's Witness Security and Special Operations Unit (or higher)must approve requests from federal investigative agencies to use a Federal Bureau of Prisons employee in anundercover capacity.

Policy and Statutory EnforcementUnit [(202) 305-4023]Media Subpoena

Pursuant to 28 CFR 50.10 and USAM 9-13.400, the Attorney General must, with limited exceptions,personally approve the issuance of subpoenas to members of the news media, the issuance of subpoenas fortheir telephone toll records, and their interrogation, arrest, or indictment for conduct committed in connectionwith their official duties. Where the Criminal Division has supervisory responsibility for the statute underwhich the case is being investigated, OEO conducts the initial review of requests from the United StatesAttorneys' offices and Criminal Division Sections, and then prepares an appropriate memorandum and actiondocument for the Attorney General's signature.

Nolo or Alford Plea Pursuant to USAM 9-16.010 and 9-16.015, United States Attorneys may not consent to a nolo contendere orAlford [North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970) (defendant pleads guilty but maintainsinnocence with respect to the charge)] plea without the approval of the Assistant Attorney Generalresponsible for the subject matter, the Associate Attorney General, the Deputy Attorney General, or theAttorney General. In matters for which the Criminal Division has responsibility, requests for AssistantAttorney General approval to consent to a nolo contendere or Alford plea should be submitted to OEO. OEOwill coordinate the review of the request by the Criminal Division sections responsible for the underlyingsubstantive area and then submit the request to the Assistant Attorney General for decision.

Courtroom Closure Pursuant to 28 CFR 50.9 and USAM 9-5.150, a request from a United States Attorney's office or CriminalDivision attorney for authorization to move to close court proceedings in a case under a statute for which theCriminal Division has supervisory responsibility is reviewed in OEO, with a recommendation and proposedaction memorandum prepared for the signature of the Deputy Attorney General.

Grand Jury Disclosure Pursuant to Rule 6(e)(3)(E)(iv) of the Federal Rules of Criminal Procedure and USAM 9-11.260, OEOreviews requests from United States Attorneys' offices and Criminal Division attorneys for authorization tomove to disclose grand jury material to state and local governments for law enforcement purposes, in mattersin which the grand jury was investigating violations for which the Criminal Division has supervisoryresponsibility. The requirement for approval arises from an agreement referenced in the notes to the 1985amendments to Rule 6(e)(3)(C)(iv), the predecessor to Rule 6(e)(3)(E)(iv). Authority to approve theserequests has been delegated to the Deputy Assistant Attorney General supervising OEO.

Search Warrant Where DocumentaryMaterial is Held by Disinterested ThirdParty in a Confidential Relationship

Pursuant to 28 CFR 59.4 and USAM 9-19.220, et seq., and only in those cases where the supervisoryresponsibility for the matter is in the Criminal Division, requests must be submitted to OEO for review priorto applying to the court for a search warrant for documentary material in the hands of a disinterested thirdparty who is in a confidential relationship with the person against whom the evidence is sought (such as amember of the clergy or therapist). A Deputy Assistant Attorney General must approve the request. Shouldthe disinterested third party be an attorney, this review is conducted in OEO's Witness Immunity Unit. (Seesupra.)



Search Warrant Regarding MaterialSubject to the Privacy Protection Act

Pursuant to 42 U.S.C. 2000aa and USAM 9-19.240, requests for authorization to seek a search warrantallowing the seizure of non-computer "work product" or other documentary material held for disseminationto the public by disinterested persons with a purpose to publish is reviewed in OEO and requires the approvalof a Deputy Assistant Attorney General. (Computer-related matters, except those involving traditional mediaor other sensitive circumstances, are handled by CCIPS.)

S Visa Application OEO is responsible for reviewing requests by law enforcement agencies for S visa status pursuant to 8U.S.C. 1101(a)(15)(S) for foreign witnesses and informants, and makes recommendations to the AssistantAttorney General, who has responsibility pursuant to 8 CFR 214.2(t)(4)(ii) to decide whether approval willbe recommended to the Department of Homeland Security. For aliens who have been granted S visa status,the Assistant Attorney General determines whether the alien has complied with the conditions of the S visastatus and, based on this determination, makes the appropriate recommendation as to whether the alienshould be permitted to apply to adjust to lawful permanent resident status. OEO makes recommendations onthese adjustment-of-status applications as well. The Assistant Attorney General's authority in this area hasbeen delegated to the Deputy Assistant Attorney General supervising OEO.

Demand for Department Testimony or Documents

Pursuant to 5 U.S.C. 301, the Department promulgated 28 CFR 16.21, et seq., to govern the release ofdocuments or testimony of DOJ employees in federal and state cases to which the government is or is not aparty. OEO reviews, and makes recommendations upon, requests from government attorneys seekingpermission either to refuse disclosure or to make disclosure where the regulations vest such decision inhigher authority.

Ex-parte Motions for Tax Returns and Tax Return Information Under 26 U.S.C. 6103

Pursuant to 26 U.S.C. 6103(i)(1) and USAM 9-13.900, for cases handled by Criminal Division attorneys, theapproval of the Assistant Attorney General (or higher Department official) is required before the CriminalDivision attorney may file an ex parte motion for disclosure of tax returns or tax return information under 26U.S.C. 6103. (For cases handled by a United States Attorney's Office, the approval of the United StatesAttorney is sufficient.)

Gambling Devices andLegislative History Unit [(202) 514-1333]Registration of Gambling Devices

Pursuant to 15 U.S.C. 1171-1178, the Chief of OEO's Gambling Devices and Legislative History Unitregisters companies and entities that have complied with the requirements of the Gambling Devices Act of1962. The registration process in OEO is purely a ministerial act.



Under the OEO Director'sPurview [(202) 514-6809]Special Administrative Measures(SAMs)

Pursuant to 28 CFR 501.2 (national security) and 501.3 (prevention of acts of violence and terrorism), OEOis responsible for the coordination of the Federal Bureau of Prisons' Special Administrative MeasuresProgram. Under Section 501.2, the Attorney General may implement SAMs that are reasonably necessary toprevent a BOP inmate from disclosing classified information when the Attorney General determines that theunauthorized disclosure of such information would pose a threat to the national security and that there is adanger that the inmate will disclose such information. Under Section 501.3, the Attorney General mayimplement SAMs that are reasonably necessary to protect persons against the risk of death or serious bodilyinjury when the Attorney General finds that there is a substantial risk that a BOP prisoner's communicationsor contacts with persons could result in death or serious bodily injury to persons, or substantial damage toproperty that would entail the risk of death or serious bodily injury to persons. SAM restrictions ordinarilyinclude housing the inmate in administrative detention and/or limiting certain privileges, such ascorrespondence, visiting, interviews with representatives of the news media, and use of the telephone, as isreasonably necessary to prevent the disclosure of classified information (501.2) or to protect persons againstthe risk of acts of violence or terrorism (501.3). In an extreme situation, and where an adequate showing ofneed has been made, the SAM may include a requirement that attorney-client conversations be monitored.(Such a SAM restriction has been imposed only once in the history of the SAMs Program.) The originalimposition of a SAM for up to one year must be approved by the Attorney General, but extensions may beapproved by the Assistant Attorney General. While modifications to a SAM normally also require theapproval of the Assistant Attorney General, any lessening of one or more SAM restriction may be approvedby the Director of OEO.

Use of Classified InvestigativeTechnologies in Criminal Cases

Pursuant to Deputy Attorney General memorandum dated 1/31/02 ("Procedures for the Use of ClassifiedInvestigative Technologies in Criminal Cases"), OEO is responsible for recommending to the DAG theapproval/disapproval of requests to use classified technologies in criminal investigations and prosecutions."Classified investigative technology" is defined as "any hardware, software, or other investigativetechnology that... is designed to intercept or acquire information of evidentiary value as a result of a systemor process which is based, in whole or in part, upon information which, at the time of its use, has beenclassified pursuant to Executive Order 12958 of April 17, 1995, as amended, or any successor ExecutiveOrder," and where there is a reasonable possibility of one of the following: "(a) the evidentiary informationto be obtained by the technology will be sought to be introduced into evidence in order to prove any chargebrought by the United States; (b) disclosure of details concerning such technology will be necessary toauthenticate evidentiary information sought to be introduced into evidence in order to prove any chargebrought by the United States; or (c) the use of the particular technology will be the subject of a motion tosuppress or other such litigation." At the same time of the above request, to the extent an investigativeagency has not already done so, it shall notify the relevant USAO(s) of such proposed deployment.Immediate deployment may be authorized in an emergency involving either immediate danger of death orserious bodily injury to any person or imminent harm to the national security.

The USAO shall also promptly notify OEO of any legal challenges to the use of classified investigativetechnologies where there may be access to, and/or disclosure of, classified technologies that have been usedin a criminal investigation. Also, if a case is being prosecuted or being considered for prosecution where aclassified investigative technology was deployed without adherence to the above policy, the relevant USAOshall notify OEO as soon as it learns of such deployment. At that time, the Assistant Attorney General of theCriminal Division shall supervise all litigation regarding the potential disclosure of classified investigativetechnologies.


Consultation Requirements

International Prisoner TransferUnit [(202) 514-3173]Transfer of American Prisoners WhoAre on Probation

18 U.S.C. 4104(a) requires the Attorney General or his designee to determine, prior to consenting to thetransfer to the United States of an American national on probation, whether the U.S. district court that wouldbe responsible for supervising the transferring probationer is willing to undertake the supervision.

Transfer of Foreign National PrisonersWho Are on Probation

18 U.S.C. 4104(f) requires the Attorney General or his designee, prior to consenting to the transfer from theUnited States of a foreign national prisoner on probation, to obtain the assent of the court exercisingjurisdiction over the probationer.


Policy and StatutoryEnforcement Unit [(202) 305-4023]Public Benefit Paroles

Requests by the State Department for public benefit paroles are referred by the Director of Parole for theDepartment of Homeland Security to OEO. OEO then canvasses the litigating sections of the CriminalDivision to determine whether any section objects to the persons named in the request being paroled into theUnited States. The result of this canvassing are reported back to DHS's Director of Parole. The requirementfor this consultation is set forth in an Interagency Protocol for Approval of Requests for Significant PublicBenefit Paroles dated June 1998.

Proposed Bureau of PrisonsRegulations

The Criminal Division, at the request of the Office of Legal Policy, provides comments on proposed Bureau ofPrisons (BOP) regulations. The Criminal Division's views are provided by the Chief of the Policy andStatutory Enforcement Unit pursuant to a delegation of authority from the Assistant Attorney General of theCriminal Division. Pursuant to the delegation memorandum, signed by then-Assistant Attorney GeneralChertoff on November 2, 2001, the Assistant Attorney General is advised by OEO whenever a proposed BOPregulation raises sensitive or controversial issues.

Criminal Jurisdiction in Bureau ofPrisons Facilities

The Bureau of Prisons (BOP) consults with the Environment & Natural Resources Division and OEO beforeacquiring or retroceding criminal jurisdiction over prison facilities. OEO's Policy and Statutory EnforcementUnit prepares the reply for the Director of OEO after consultation with the affected United States Attorney.

Criminal Jurisdiction on Military Bases Military regulations require consultation with the affected United States Attorney before the Secretary ofDefense or a subordinate military department acquires from or retrocedes to a state criminal jurisdiction overmilitary facilities. In 1983, the Office of General Counsel of the Department of Defense requested the militarydepartments to include the now former General Litigation and Legal Advice Section of the Criminal Divisionin the consultation process. This responsibility now resides in OEO. The Policy and Statutory EnforcementUnit prepares the reply for the Director of OEO after consultation with the affected United States Attorney.

Criminal Jurisdiction in Indian Country Congress has authorized the Secretary of the Interior to accept retrocession by the states of civil and criminaljurisdiction previously conferred upon them over certain Indian reservations within their boundaries. 25U.S.C. 1323. Executive Order No. 11435, 33 F.R. 17339 (Nov. 21, 1968), requires the Secretary to consultwith the Attorney General before accepting the retrocession of criminal jurisdiction. Upon receipt of a requestfor concurrence, OEO prepares a response for the Assistant Attorney General, Criminal Division, afterconsultation with the affected United States Attorney(s). There is no express delegation from the AttorneyGeneral to the Assistant Attorney General of the Criminal Division.



Notification Requirements

Witness Immunity Unit[(202) 514-5541]Prosecution of Attorney

Pursuant to USAM 9-2.032, OEO reviews notifications to the Criminal Division of the proposed prosecutionof attorneys. A recommendation is then prepared for the Assistant Attorney General as to whether furtherreview of the matter is believed necessary.

International Prisoner TransferUnit [(202) 514-3173]Return from the United States of aTransferred Offender Whose TransferWas Not in Accordance with theTransfer Treaty or United States Laws

If a United States court finds that the transfer of an offender to the United States was not in accordance withthe transfer treaty or federal laws and orders the offender to be released from federal custody, 18 U.S.C.4114(a) requires the Attorney General, or his designee, within 10 days of the final court order, to notify theforeign country imposing the transferred sentence of this determination. This notice, which informs thesentencing country of the court's decision and requests if the sentencing country wants the offender returned,must also inform the sentencing country that it must respond to the notice by a specified date which can be nolonger than 30 days from the date of the notice.

Under the OEO Director'sPurview [(202) 514-6809]Notification of Certain USA PATRIOTAct Disclosures to the IntelligenceCommunity and Homeland SecurityOfficials

Pursuant to Attorney General guidelines of September 23, 2002 ("Guidelines Regarding Disclosure to theDirector of Central Intelligence and Homeland Security Officials of Foreign Intelligence Acquired in theCourse of a Criminal Investigation"), OEO must be notified after certain disclosures to the IntelligenceCommunity and/or Homeland Security Officials under Section 203 of the USA PATRIOT Act involvinggrand jury and Title III material (which have statutory or rule-based restrictions on dissemination). OEO keepsrecords of those disclosures and follows up to ensure that notice provisions, i.e., Fed.R.Crim.P. 6(e), arecomplied with to the extent possible. The initial discloser of the covered information is responsible foradvising the recipient(s) of any restrictions on the dissemination or use of the disclosed information, as well asthe need to provide OEO with notice of any further disclosure of this information that the recipient(s) maymake.

Coordination Role

Under the OEO Director'sPurview [(202) 514-6809]Victim-Witness Coordinator for theCriminal Division

By a June 17, 1993, memorandum, then-Acting Assistant Attorney General John C. Keeney designated theOffice of Enforcement Operations as the component responsible for housing the Criminal Division's victim-witness coordinating efforts. By a January 10, 2005, memorandum, then-Assistant Attorney GeneralChristopher Wray appointed the first full-time Criminal Division Victim-Witness Coordinator. Responsiblefor providing training, guidance, and assistance to each Section's Victim-Witness Liaison, the Coordinatoralso monitors and evaluates the Division's victims' assistance efforts and prepares an annual report for theAttorney General, which is submitted through the Office for Victims of Crime. Section Chiefs and trialattorneys in the Division's litigating components remain the responsible officials in the Criminal Division foridentifying the victims of crime, and for performing services mandated by the Attorney General's Guidelinesfor Victim and Witness Assistance. A designated Associate Director of OEO acts as the Point-of-Contact forcomplaints against the Division filed pursuant to the Crime Victims' Rights Act.




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