# Presentation: 055525

## United States Department of Justice

- Tools of U.S. Criminal Justice System
- Aimed at
- Combating Organized Crime

## Goals of the U.S. Anti-Organized Crime Program.

- To pursue organized crime groups through lawful prosecution of its leaders, members and associates.
- At best, prosecutions will result in the eradication of OC groups; or at a minimum will result in the disruption of their influence in the economic and social life of the community.

**Notes:**
NOTE:  Destruction of OC groups prevents further victimization.   After all, the purpose of the criminal justice system is to protect the society as a whole and to vindicate its rights.  While protection and fair treatment of victims is of vital importance, it is not the principal reason that the criminal justice system exists.  Thus, victims rights and services to victims, an important social objective, should be handled separately.

## FEATURES OF U.S. ORGANIZED CRIME PROGRAM

- A.  The ability to gather intelligence about the criminal organization through confidential informants.
- B.  The ability to record conversations among members of the criminal organization under investigation.
- C.  The ability to penetrate criminal organizations through the use of undercover operatives.
- D.  The ability to persuade persons having inside information about the criminal organization to provide testimony and other evidence for use in court.
- E.   The ability to prosecute members of the organization as a whole for activities on behalf of the organization.
- F.    The ability to deprive criminal groups of wealth
- G.   Dedicated groups of prosecutors & investigators

**Notes:**
These steps are all provided for in one form or another in the Transnational Organized crime convention.  Criminalization of group type crime is made mandatory for states parties to the convention.  Taking measures to allow for electronic and other surveillance and the use of undercover operations where the states deem it appropriate and to the extent that the use of such techniques is consistent with the basic principles of the State’s legal system.   The steps described in relation to the development of witnesses are, with respect to the legal and physical protection of witnesses made mandatory and states are to consider adopting witness immunity and plea bargaining.

## CONFIDENTIAL INFORMANTS(HUMAN SOURCES)

**Notes:**
A confidential informant is a person who provides information on a continuous basis who is not expected to provide evidence in court and whose identity is not normally revealed.  Indeed, usually, the prosecutor is completely unaware of the identity of the confidential informant.  That information is usually only in the possession of the agents.  Why?  Obviously because the informant is in danger because he or she is providing information to aid law enforcement in targeting their efforts. 

## PURPOSE OF CONFIDENTIAL INFORMANTS

- To identify criminal organizations posing a threat to the economic and social structures of the community.
- To identify the members of the criminal organization who should be targeted for investigation.
- To identify activities of the criminal organization which are viable targets for successful investigation.

## PROBLEMS WITHCONFIDENTIAL INFORMANTS

- All confidential informants are criminals themselves.
- Confidential informants lie to curry favor.
- Confidential informants always have self interest, i.e. revenge, desire to avoid answering for their crimes, or greed as a motivation.
- Confidential informants commit crimes while providing information to law enforcement.

**Notes:**
Confidential informants always have some degree of involvement in the criminal world.  If they did not, they would have no information to provide.  Criminals only have trust in other criminals.  They don’t provide information to decent citizens who they consider “squares.”  Because informants are criminals, they are dangerous and will often take steps to compromise law enforcement officers dealing with them.  NOTE the John Connolly case.

## MANAGING CONFIDENTIAL INFORMANTS

- Information received by confidential informants must be checked and evaluated for reliability and usefulness.
- Investigator’s handling of confidential informants must be supervised and overseen by investigative managers and prosecutors.
- Informants must be told that they will be prosecuted if they commit a crime and that warning must be implemented where appropriate.

## STRUCTURES FOR MANAGING CONFIDENTIAL INFORMANTS

- Validation process
- High Level Confidential Informant Review Committee (CIRC) for Certain Sensitive Human Sources.
- Media, Attorneys, Physicians
- High level leaders of criminal groups

## TECHNICAL SURVEILLANCE

**Notes:**
Have already had a session on the technical and detailed legal aspects of ELSUR.

## TYPES OF TECHNICAL SURVEILLANCE

- Surreptitious Electronic Surveillance
- Wire Tapping (Wire Interception)
- Bugging or hidden microphones (Oral Interception)
- Consensual Interception
- Data Interception (E-Mail, FAX Transmissions, etc.)
- Video Surveillance

## LEGAL REQUIREMENTS TO CONDUCT TECHNICAL SURVEILLANCE

- Surreptitious surveillance
- The levels of required approval depend on the degree of intrusion into privacy all require approval by a judge.
- Wire and Oral intercepts require strictest scrutiny
- Video and data intercepts require less strict scrutiny
- Consensual surveillance
- Requires only the consent of one of the parties to the communication being intercepted.

## WHAT TECHNICAL SURVEILLANCE PROVIDES

- Insight into the intimate operations of a criminal organization.
- Insight into the role of each participant in the hierarchy of the criminal organization
- Evidence of the participation of the members of the criminal organization in criminal activity from their own statements.

## UNDERCOVER OPERATIONS

## WHY UNDERCOVER OPERATIONS?

- Insertion of trustworthy officer where participants have a lack of credibility.
- Enables law enforcement to gain a bird’s eye view of the operations of a criminal organization.
- Having a trained officer deal with members of a criminal organization ensures that law enforcement will obtain recorded and accurate evidence to present at trial.

## LEGAL OVERSIGHT OF UNDERCOVER OPERATIONS

- Must ensure that the activities of the undercover agent do not amount to an entrapment (agent provacateur).
- In the U.S., entrapment means government inspired activity in which the subject is not predisposed to commit.
- Must ensure that the rights of third parties are not  infringed.
- Officer engaging in criminal activity not considered to be committing a crime.

**Notes:**
Mention CUORC in FBI.  Ensures that questions about the operation are asked and that due consideration is given to the dangers of and potential for success of the operation. 

## OPERATIONAL OVERSIGHT OF UNDERCOVER INVESTIGATIONS

- Intensive training of undercover investigators.
- Detailed oversight of operation by investigative agency management and by prosecutors at the local level.
- For cases involving certain specified sensitive circumstances, review and oversight by headquarters level investigators and prosecutors.

## SENSITIVE CIRCUMSTANCES

- Investigation involves a high level federal or state official or a judge.
- Investigation would require the undercover officer to participate in otherwise criminal activity.
- Investigation might expose the government to a significant risk of civil liability.
- Investigation involves a significant risk of damage to third persons or property.
- Require the lease or purchase of private property under certain circumstances.

## SENSITIVE CIRCUMSTANCES(CONTINUED)

- The investigation contemplates the use of the proceeds of the investigation to offset expenses.
- Establishing an undercover business.
- Providing goods or services essential to the commission of a crime which would not be available to the subject except from the Government.
- Risk that the undercover employee would be required to make a false statement under oath.
- Significant risk that the undercover employee will participate in an otherwise privileged relationship, e.g. lawyer/client, physician/patient, clergyman/penitent

## COOPERATING WITNESSES

## WHY FLIP WITNESSESWHO ARE THEMSELVES CRIMINALS

- With intercepted and recorded telephone or personal conversations, the participants often talk in code or half expressions which are understood only by the participants
- Undercover officers are usually able to penetrate only to a certain level and even then only with great difficulty.
- No other technique will provide evidence of the internal operations of a criminal organization in an understandable form.

## The US System – Result Oriented

- Comprehensive Approach to witness development.
- Provides an incentive to cooperate.
- Inhibits a Deterrent to Cooperation by Inside Witnesses.
- Allows for Testimony of Codefendants and Coconspirators.
- Ensures that those who commit crimes are adequately punished.

## Witness Development

- Effective to “work up the ladder”
- Start with lower-level members and encourage cooperation
- Limited sentence reductions for those who cooperate *fully* and *truthfully*
- Can’t give benefit if they withhold information
- Can’t allow them to get away with lying

**Notes:**
TOC Article 26 requires states parties to the convention to take measures to encourage cooperation with law enforcement by persons who participate or have participated in OC groups.  Among the measures which states parties to the TOC are required to consider are “mitigating punishment” and “granting immunity from prosecution.”   TOC Article 26, Paragraphs 2. and 3.  The plea bargaining process, witness immunity and other provisions relating to reduction of sentences put the United States in compliance with this article.

## WHAT KIND OF WITNESSES ARE WE TALKING ABOUT?

- Unfortunately, the very best witnesses are themselves very bad people
- “Schemes hatched in Hell do not have angels as witnesses.”
- “Swans don’t swim in the sewer.”
- You must encourage testimony by upper-level OC figures to break the back of OC groups.

**Notes:**
The dangers of confidential informants are also present with criminal witnesses.  Care must be taken to corroborate the witnesses.  We must remember that these people, as charming as they might be, are criminals and must be handled with care.

## Joseph Valachi

- Early LCN Turncoats
- Exposed the Existence of LCN before Congress
- Testified against Vito Genovese and others
- In Jail Throughout, and Died in Jail

**Notes:**
Provided protection as a prisoner.  Was isolated from other prisoners to protect him from retaliation for having disclosed the secrets of La Cosa Nostra in violation of the oath he took when he became an inducted member of that organization.   Was extremely fearful and went so far as to insist on the ability to prepare his own food while in custody because he was so fearful that LCN would try to poison that food.  Held in isolation in separate quarters in Milan, Michigan and LaTuna, Texas.  Contacts with other persons limited to FBI Agents and Bureau of Prisons personnel.  Late 1950’s died in protective custody in 1970”s.

## INCENTIVES TO TESTIFY	

- Reduction, but not abrogation, of sentence in exchange for providing information assisting in the investigation or prosecution of others.
- Reduction of charges.
- Immunity from testimony being used against the witness in any criminal case.
- Both a carrot and a stick.

## Plea Agreements in US

- General Misconception about “Plea Bargaining” in the US
- Defendants in Federal Court Must Plead Guilty to “the most serious, readily provable offense or offenses that are supported by the facts of the case”

**Notes:**
Plea agreements vital to U.S. system.

## US Plea Agreements

- Plea Agreement Sets Out Most Serious Offense
- Defendant Agrees that He/She is Guilty and Subject to Entire Sentence *Unless* the Government Asks for Lower Sentence
- Government Usually Does not Make that Decision Until Cooperation is Complete
- Government Maintains Leverage Over Defendant – If He/She Lies, Commits Crime, Withholds Information, Refuses to Testify, Refuses to Turn Over Assets, or Harms Another, He/She Gets No Reduction, and Probably Enhancement – The Carrot and the Stick

## Slide 28

## INHIBIT A DETERRENT WITNESS SECURITY (WITSEC)

- TWO KEY ELEMENTS:
- LEGAL PROTECTION
- PHYSICAL PROTECTION
- Temporary measures
- Witness Security Program

## LEGAL PROTECTION 

- To corruptly, or by threats or force to influence the due administration of justice. (18 USC §1503)
- To tamper with a victim, witness or informant by violent means or by harassment. (18 USC §1512)
- To use violence to retaliate against a witness victim or an informant for attendance as a witness at an official judicial proceeding or for providing evidence or other information to law enforcement authorities. (18 USC §1513)

**Notes:**
These are the obstruction of justice provisions in U.S. Criminal code.  There are others but these are the ones used to prosecutr those who corruptly attempt to interfere with witnesses and others who provide information.

## PHYSICAL PROTECTIONWITNESS SECURITY (WITSEC)

- Dept. of Justice may relocate and protect witness or potential witness to organized criminal activity or serious crime
- Must be testifying witness
- Must be genuine threat to witness
- Can be based on law enforcement assessment
- Can be based on history of organization being prosecuted

**Notes:**
18 U.S.C. Sections 3521 to 3528 in great detail authorize Department of Justice to provide for the relocation and protection of a person who is a witness or potential witness in an official proceeding (either a trial or grand jury) concerning an organized criminal activity or other serious offense if it is determined that a crime of violence or other obstructive crime directed at the witness with respect to the proceeding is likely to be committed.

must be a “witness” that is a person who has or is expected to provide testimony or other evidence in a trial or other judicial proceeding concerning the commission of a crime.  

There must be evidence that the person receiving the services is likely to be the victim of some sort of violent crime which is committed against the person on account of his being a witness.

Evidence can be an assessment of a law enforcement agency that the person is in danger of his giving evidence in a criminal proceeding there does not have to be direct evidence that there has been a direct threat against the witness.

Evidence can be something like the witness is giving evidence against an organization which, according to reliable intelligence information, always engages in retaliatory action against persons who assist law enforcement against the organization
E.G. in La Cosa Nostra, a member upon induction always affirms that he understands that if he should reveal any of the secrets of the organization, the penalty is death.  Thus, a member of La Cosa Nostra who provides evidence against his colleagues is presumed to be in physical danger as a result of his giving that evidence. 

## OBJECTIVES OF WITSEC

- To make it *possible* for witness* *to testify and provide information with a feeling of safety.
- Does not provide a *motivation* to testify but it does remove an obstacle to witness’s willingness to testify.
- That is, it counters the witness’s view that he or she is in danger if he or she cooperates.
- Unless you have willing and comfortable witnesses, Witness Security is a waste of time.

**Notes:**
Note, TOC Article 26 mandates that states parties to the Convention “consider” mitigation of punishment and witness immunity in exchange for cooperation.  See Art. 26 Paragraphs 2 and 3.

## Interesting Facts about US System

- Created October 15, 1970
- Very Few Witnesses are Provided with Witness Security Services.
- As of October 15, 2003
- 7,674 witnesses were accepted into WITSEC since then, or approximately 232 witnesses per year or on the average.
- Less than 5/100ths of 1 % of the criminal cases filed in the United States use WITSEC.
- 138 witnesses were accepted into the program in fiscal 2003
- Mostly used in organized crime and drug trafficking prosecutions

**Notes:**
94 judicial districts in the United States in which United States Attorneys have filed, on the average, 54, 170 criminal cases each year since fiscal 2000, the witness security program is used only in those  circumstances in which the necessity is overriding and the witness is truly in danger as the result of his giving of testimony and the case is truly significant.

## Facts About US System

- WITSEC Used Only With Great Care
- Extremely expensive.
- Causes major disruption in the normal life of the witness
- adjustment to life in the program is extremely difficult.  (Many witnesses are terminated after only a few years in the program and they return to the areas from which they came which we call the danger area.)

**Notes:**
I have personally sponsored more than 10 witnesses in the witness security program and of those only 1, a single man, has succeeded in remaining in a relocated situation for more than 10 years.  I have not sponsored a witness since 1989. 

## Facts About US System

- Most Witnesses in WITSEC Serve *Jail Sentences* (Approximately 84%)
- Most are significant criminals who have agreed to testify against others
- Participants, when corroborated, make the best witnesses
- Witnesses not relieved from punishment
- Witness *may* **earn **a sentence reduction at the *end *of his or her cooperation

**Notes:**
In fiscal 2003, 138 witnesses were accepted into WITSEC 91 of whom, or approximately 2/3, were serving sentences after having been convicted of offenses.

## Jimmy “The Weasel” Frattiano

**Frank Sinatra**

**Jimmy Fratianno**

**Paul Castellano**

**Carlo Gambino**

**Notes:**
Jimmy Frattianno was the first major La Cosa Nostra boss, (San Francisco) to testify in a court proceeding.  Is the first LCN member to be relocated in WITSEC.

## NO LICENSE TO COMMIT CRIME(Salvatore “The Bull” Gravano)

- Relocated after testifying against John Gotti
- Engaged in drug trafficking after relocation
- Currently serving prison sentence

**Notes:**
Note:  Sammy “the Bull” is doing 20 for MDMA distribution and is under charges for a murder in which he participated about which he did not tell the people who developed him as a witness.  Witness must divulge everything.

## GROUP PROSECUTIONS

**Notes:**
Fat guy in the center is Al Capone.

## GROUP PROSECUTION THE U.S. MODEL

- In the U.S., we prosecute the organization as an “enterprise” consisting of a group of individuals. (RICO)
- Provides for flexibility and allows charges to be based on the facts which are expected to be proved.
- Able to reach to the highest levels of the criminal organization
- Is unique to U.S. system and is based on conditions as they exist in the United States.
- Constitution in U.S. protects freedom of association.

## PURPOSE OF GROUP PROSECUTION

- Allows for prosecution at all levels of a criminal organization and provides means to reach to the highest levels.
- Avoids the inefficiency and high cost of a series of prosecutions of organization members.
- Successful group prosecutions will go a long way toward significantly weakening the criminal organization to the point of extinction.
- Disrupts organization because heavy sentences encourage flipping of witnesses

## DEDICATED PROSECUTOR GROUPS

## ORGANIZED CRIMESTRIKE FORCE UNITS

- Established in 21 of 94 United States Attorneys’ Offices.
- Operate Under Oversight of Headquarters Based Organized Crime & Racketeering Section.
- Range in size from 1 to 20 attorneys.
- Located in cities with most severe organized crime problem

## BENEFITS

- Ensures that Local Chief Federal Prosecutor (United States Attorney) will dedicate sufficient resources to organized crime.
- Enhances communication among districts to combat national problem.
- Ensures uniformity of enforcement effort in national enforcement program.

## J. Kenneth LowrieDeputy Chief Organized Crime & Racketeering SectionU.S. Department of Justicekenneth.lowrie@usdoj.gov(202) 616-8391