U.S. LAW ENFORCEMENT TECHNIQUES AGAINST ORGANIZEDCRIME GROUPS
Joseph K. Wheatley＊

I. INTRODUCTION
Over decades of experience, the United States and other countries have acquired and developed
techniques to disrupt and dismantle domestic and transnational organized crime groups. U.S. efforts againstorganized crime groups rely on the investigative and prosecutorial tools that were first developed in the longstruggles against the Italian-American Mafia, and augmented and adapted for use against various kinds oforganized crime groups. In surveying the most important law enforcement tools available to U. S. law
enforcement authorities, this article will begin with three tools used by investigative agencies with theassistance and under the oversight of prosecutors: electronic surveillance, undercover operations and the useof confidential informants. Following that, this article will discuss certain tools used by U. S. federal
prosecutors against organized crime groups: the Racketeer Influenced and Corrupt Organizations statute,compelled and voluntary testimony, witness protection, and financial tools such as forfeiture.
The United States Department of Justice coordinates its prosecution efforts against organized crime andgangs through the Criminal Divisionʼs Organized Crime and Gang Section (“OCGS”). OCGS is a specializedgroup of prosecutors charged with developing and implementing strategies to disrupt and dismantle the mostsignificant regional, national and international gangs and organized crime groups. OCGS prosecutors workwith other federal prosecutors, who are known as Assistant United States Attorneys and are located in U.S.
Attorneyʼs Offices around the country. In these cases, the investigators working with the prosecutors are
drawn from local, state, and federal agencies, including the Federal Bureau of Investigation, the Bureau of
Alcohol, Tobacco, Firearms, and Explosives, and Homeland Security Investigations.
Federal prosecutors and agents also cooperate with their foreign counterparts to disrupt and dismantle
organized crime groups. Cooperation with foreign law enforcement authorities continues to be essential to
U.S. efforts against organized crime groups. This cooperation comes in various forms, such as information
sharing, extraditions/expulsions, and stationing U.S. law enforcement officials in other countries. Information
sharing depends on the type of information and the technique through which it was obtained. Information
may be shared informally in ways that are fully consistent with the laws of the countries involved or throughformal channels, such as multilateral conventions and Mutual Legal Assistance Treaty requests. U.S. law
enforcement officials stationed abroad work side-by-side with their foreign counterparts to investigate crimes
against United States nationals committed overseas. Where offenders are identified, these officials also work
to locate, apprehend, and return the perpetrators of such crimes through extradition, expulsion or otherlawful means. They also facilitate the arrest and extradition of international fugitives located in the UnitedStates and wanted abroad.

II. ELECTRONIC SURVEILLANCEElectronic surveillance is a highly effective law enforcement tool against organized crime groups. Suchsurveillance may occur live and real-time or occur after-the-fact. In proving a crime, nothing is more effective
than the use of the defendantʼs own words, as those words generally provide reliable, objective evidence ofcrime. Electronic surveillance also enables law enforcement agencies to learn about crimes before they occur
by surveilling criminal activities, such as conspirators making plans to meet or deliver contraband, or
disrupting activities, where appropriate. Such surveillance is also helpful against transnational groups
Trial Attorney, Organized Crime and Gang Section, Criminal Division, United States Department of Justice, United States ofAmerica. The author gratefully acknowledges the extensive contributions to this paper provided by Bruce H. Ohr, Frank J.
Marine, and Amy Chang Lee.
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because it enables law enforcement agencies to intercept conspirators in the United States discussing future
crimes with associates outside the country, which is evidence that would otherwise be difficult to obtain.
Electronic surveillance has moved beyond the more traditional telephone surveillance, oral eavesdropping
devices, and video surveillance. Now, electronic surveillance also includes a variety of content and other data,
including live and stored electronic communications, social media activity, computer keystrokes, and cell-site
locations.
A. Stored Electronic Communications and Records
Stored electronic communications, retained by a service provider, such as e-mail or social media
messages, may be obtained pursuant to search warrants under a probable cause standard, but more general
information, such as subscriber records and billing records, may be obtained with only a subpoena. While notas helpful as live, real-time electronic surveillance, stored electronic communications nonetheless show theinside of organized crime groups, including their membership and leadership, structure, common purpose,continuity, and the offences that the groups commit. For instance, gangs in the United States have used social
media sites, such as Facebook and Twitter, to arrange meetings, threaten rivals, issue orders to members,
and plan attacks against rivals.
B. Live, Real-time Electronic Surveillance
The remainder of this section discusses live, real-time electronic surveillance. While very helpful,electronic surveillance is a sensitive tool due to privacy interests, and there are burdens of proof that the
government has to satisfy to obtain permission to use the technique. The standard applied by the judge varies
depending on the type of electronic surveillance sought. For pen registers, and trap and trace devices, which
identify outgoing telephone calls and incoming telephone calls, respectively, the surveillance must merely be
relevant and material to the investigation. However, intercepting live communications requires an evenhigher showing than the normal probable cause standard: there must be very little doubt in the judgeʼs mind
that the device is being used for criminal activities.
For live electronic surveillance, there are substantial restrictions on its use that are designed to protect anindividualʼs privacy interests. For example, electronic surveillance can only be used to obtain evidence ofspecific serious offences that are listed in the governing statute.1 The government must first request andreceive the permission of a neutral, independent judge for the surveillance. To request and receive theauthorization, a law enforcement agent must submit an affidavit to a U.S. district judge that contains specificfacts establishing probable cause to believe: 1) that the subject of the surveillance is committing certain
specified offences, and 2) that it is likely that evidence of such crimes will be obtained through the electronic
surveillance.2 In a requirement known as “necessity”, the government must also establish that otherinvestigative methods have been attempted and failed to obtain the desired evidence, or establish why othertechniques would be unlikely to succeed or are too dangerous to attempt. U.S. Department of Justice policy
also requires that the suspect has recently used the method of communication, such as the telephone or text
messages that will be intercepted.
1. Wiretaps
While conducting a wiretap of a telephone, emails, text messaging or other real-time communication, thegovernment must attempt to minimize the interception of innocent conversations by taking reasonable steps
to assure that only conversations relevant to a crime are captured.3 Thus, monitors must turn off theinterception equipment when conversations stray from matters relevant to the crimes under investigation.
The U.S. Department of Justice also has policies for situations when the surveillance records privileged orconfidential information, such as attorney-client communications. In the event that such communications areintercepted, the recordings are immediately sealed, the judge and supervising attorney are informed and noother investigative officers may learn the content of the conversations.
Electronic surveillance also has statutory time limits. Court-authorized electronic surveillance orders arelimited to thirty days, but may be extended for additional thirty-day periods as long as the requirements are
See 18 U.S.C.A. § 2516 (West).
See 18 U.S.C.A. § 2518 (West).
3
See 18 U.S.C.A. §§ 2511, 2518 (West).
1
2

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met every thirty days and approved by the judge.4 Courts have ruled that, if the surveillance is being used toaid in a good faith prosecutorial effort, the surveillance may be extended indefinitely. At the end of theelectronic surveillance, the intercepted individuals must be informed of the surveillance within ninety days,
unless the court authorizes delayed notification due to the governmentʼs showing that it would impair an
ongoing investigation. Immediately at the end of the surveillance, the recordings must be sealed in order topreserve the integrity of the evidence.
In recent years, criminals have grown more aware of the likelihood that law enforcement is surveilling
their communications, and have begun to take proactive steps to elude surveillance. This includes frequently
changing telephones or using encrypted communication. In response, law enforcement officials may obtain
authorization to “spin-off”, which adds more telephones to the court authorizations as they become necessary
to monitor the subjects. A “roving” interception is also allowed in cases where individuals frequently change
their methods of communication in order to avoid detection by authorities.
One of the greatest challenges in using electronic surveillance to investigate transnational organizedcrime is the variety of languages that are intercepted. Real-time minimization of personal conversations is notalways possible, especially when the monitoring agents are unfamiliar with the language being spoken or theparticipants are speaking in code. When that occurs, “after the fact” minimization is permitted by the law. In
such situations, an interpreter or expert listens to the conversation as soon as is reasonably possible after therecording is made, and turns over only the relevant portions of the recording to the investigators. Privacy
concerns under the U.S. Constitution are also not invoked when the parties are not American citizens andhave no attachment to the United States, although interceptions may be excluded if they were not reasonable
under the laws of the country in which they occurred.5
2. Consensual Recording
Judicial authorization is required only when neither party to the conversation has consented to make arecording. If one party makes his or her own recording, or agrees to be recorded by the government, which is
known as a “consensual recording”, privacy concerns are no longer implicated. Also, because prison inmates
are aware that they have a diminished expectation of privacy in custody, their conversations may berecorded without obtaining an electronic surveillance order.

III. UNDERCOVER OPERATIONS
An undercover operation is another significant technique against organized crime groups, and often
complements electronic surveillance efforts. Undercover operations allow law enforcement agents toinfiltrate the highest levels of organized crime groups by posing as criminals while real criminals meet to
discuss their plans and seek assistance in committing crimes. The scope of undercover operations varies
greatly. Such operations can be short, lasting only a few hours, or quite lengthy, lasting years. They may
investigate a single criminal incident, or a complex criminal enterprise that commits various crimes. The
types of crimes investigated by undercover operations also vary. For instance, undercover operations may
involve the purchase of contraband such as drugs, stolen property or illegal firearms, or they may involve theoperation of an undercover business where criminals meet and discuss their activities with undercover
officers or informers.
In such operations, agents often succeed in gaining the confidence of suspects and induce them to reveal
past criminal activities or to unwittingly plot with the agents in ongoing criminal endeavours. Especiallywhen done in conjunction with electronic surveillance, undercover operations provide comprehensive
coverage of suspectsʼ daily activities. Inherently, going undercover is a dangerous and sensitive process. It
also poses the risk of luring otherwise innocent individuals into criminal activity. Accordingly, suchoperations require exceptional preparation and oversight.
Crucially, law enforcement officials must always protect the physical safety of the undercover agent. To
prevent a premature disclosure of his or her identity, the agent is given a substantiated past history (referred4
5

See 18 U.S.C.A. §§ 2518, 2519 (West).
See U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990); U.S. v. Barona, 56 F.3d 1087 (9th Cir. 1995).

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to as “backstopping”). Also critical are careful briefings of the targetʼs patterns, habits and modes of operation.
Before a lengthy or particularly dangerous undercover investigation may occur, the Special Agent in Charge(“SAC”), as well as the prosecutors involved, must consent. As sensitive circumstances develop in theinvestigation, the level of review escalates. The general concerns of approving any investigation look to: 1) therisk of injury to individuals or property, both civilian and governmental; 2) privacy concerns, particularly
where an undercover operation might intrude upon privileged or confidential discussions; 3) and the risk thatthe undercover operative may have to participate in illegal activities. An undercover operation may not last
longer than is necessary to achieve the objective nor last longer than six months, unless there is renewed
authorization to proceed.
If the duration of the undercover operation is relatively brief, such as the single purchase of narcotics, afirst line investigative agency supervisor and first line prosecutor must approve the activity after having
been informed of all the facts of the investigation. An operation of longer duration, with an undercover agent
and informant engaging in what would otherwise be ongoing violations of law, requires the approval of ahigher level supervisor, such as a local lead investigative agent, and a supervisory prosecutor must be
informed of all the facts before giving approval. Long-term operations are crucial to infiltrating entrenchedorganized crime groups that commit their illegal activity over an extended period of time.
If the situation is one of extreme sensitivity, such as a risk to innocent third parties, or if there is extensive
criminal activity of a serious nature, then investigative headquarters and Justice Department prosecutors
must review and approve the undercover investigation. To balance prosecutorial concerns with the safety of
the undercover operative and the public, the Department of Justice created the Undercover Review
Committee, composed of senior prosecutors and investigators. The Committee is responsible for reviewing,
approving and controlling all sensitive undercover operations. The request for approval must be in writing,contain a full factual description of the suspected criminal activity and the participants, and adequately detailthe undercover scenario, the expertise of the undercover team, the duration of the project, the foreseeable
legal issues, and risks to the agents and public.
Finally, law enforcement officials must avoid, at all costs, entrapment. Entrapment is inducing a person tocommit an offence that he or she otherwise would not commit. Accordingly, there are restrictions to limit
undercover operations and avoid this potential entrapment mishap. Law enforcement personnel are also
required to take steps to prevent violence from occurring if they learn of potential violent crimes. This may
include warning a potential victim, arresting suspects who pose a threat, or ceasing an undercoverinvestigation altogether.

IV. INFORMANTS
Another critical law enforcement technique is the use of confidential informants. In the U. S. law
enforcement community, a confidential informant is someone who provides information or assistance to theauthorities in return for a promise that the authorities will try to keep his or her identity confidential. Someconfidential informants are willing to testify, while others are not. In the event that a confidential informant is
not willing to testify, law enforcement authorities cannot absolutely guarantee the informantʼs confidentiality,
because in relatively rare circumstances courts may decide that due process, or concerns of fundamental
fairness, require that a confidential informantʼs identity be disclosed to a defendant charged with a crimewhere the informant can provide evidence that could exculpate the defendant. However, those situations are
rare. In most cases, law enforcement authorities are able to keep an informantʼs identity confidential.
Confidential informants are typically motivated to provide information to the authorities in exchange formoney or lenient treatment regarding charges pending against them or likely to be brought against them. In
many cases, confidential informants are themselves engaged in criminal activities, which enables them toprovide valuable direct evidence of criminal activities by their criminal associates. Confidential informants
frequently provide the information that enables law enforcement officials to obtain judicial warrants
authorizing electronic surveillance. Many successful prosecutions of the leadership of organized crimegroups, including the Italian-American Mafia, have involved information supplied by confidential informants
who provided information for many years about the leadership of the organized crime groups; indeed some of
the informants have been “made members” of the Italian-American Mafia. Incriminating evidence by
informants who deal directly with the leadership of organized crime groups is simply invaluable to break17

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through the layers of insulation that the leadership uses to conceal their activities.
However, there are significant risks associated with the use of informants. Sometimes, informants do not
fully disclose their own criminal activities, or they falsely implicate their enemies in crimes, or they engage inunauthorized criminal activities. In that latter respect, under U. S. law, law enforcement authorities may
authorize informants to participate in some forms of non-violent criminal behavior that would otherwise beillegal if they were not acting as informants with authority to engage in the activities. For example,
depending on the circumstances, in order to protect an informantʼs cover and to enable him to be in a position
to obtain incriminating evidence against others, informants may be authorized to participate in illegal
gambling, trafficking in stolen property, and other non-violent crimes. Therefore, it is important for law
enforcement authorities to closely monitor the activities of informants to minimize the danger that the
informant would use his association with law enforcement to shield his own unauthorized criminal activities.
These three techniques, electronic surveillance, undercover operations, and use of informants are themost important tools that have assisted investigative agencies against domestic and transnational organizedcrime groups. Next, this article will discuss the tools used by U.S. federal prosecutors against organized crimegroups.

V. RACKETEER INFLUENCED AND CORRUPT ORGANIZATION STATUTE
In every organized crime case, the objective is always to find and convict the highest levels of a criminalorganization, in an effort to disrupt and dismantle the group. Accomplishing this goal requires special
prosecutorial tools, including a statute that explicitly prohibits participation in a crime group throughspecified unlawful activity. The most common antiracketeering law is the Racketeer Influenced and Corrupt
Organizations Statute (“RICO”), passed in 1970. RICO provides heavy penalties when a defendant conducts, orconspires to conduct, the affairs of an enterprise through a pattern of specified acts, also known as “predicate
crimes.” An enterprise can be anything from an ostensibly legitimate entity, such as a corporation or labour
union, to a group of individuals working together to commit a crime, such as the MS-13 gang or the ItalianAmerican Mafia.
Despite RICOʼs broad power, there were only a handful prosecutions against organized crime in thestatuteʼs first 15 years. The shortage of prosecutions was mainly because it took time for federal prosecutors
to feel comfortable with such a complex statute to make it the focus of organized crime prosecutions.
Additionally, the investigative techniques, such as electronic surveillance and undercover operations,necessary to build a convincing RICO cases, were not routinely used against organized crime bosses in the1970ʼs.
RICO has proven to be an effective tool in helping to prosecute organized crime in the United States.
RICOʼs power, however, also means that there is oversight and approval for its use. To protect against
potential misuse, the U. S. Department of Justiceʼs Organized Crime and Gang Section (“OCGS”) has a
specialized unit of attorneys who carefully review all proposed RICO indictments for legal and factual
sufficiency, which ensures that RICO is only used when necessary. Further, OCGS staffs its own prosecutors
on RICO cases around the country and provides advice to other prosecutors on their RICO cases after
indictment.
Disrupting and dismantling organized crime groups without RICO would be inconceivable. RICO is not
used solely for organized crime cases; it has been used in official misconduct cases, against hundreds of police
officers, judges, and public officials, as well as against terrorist groups, hate groups, stock manipulators, anddrug cartels.
A. Basic RICO Features
It is important to note that all of RICOʼs original 46 predicate offences, such as murder, arson, andextortion, were criminalized well before 1970. RICO represented a significant legislative initiative because it
permitted many different crimes to be charged within a single indictment. Under RICO, these different
crimes could be charged in a single count against a defendant, provided that the crimes were part of the
defendantʼs pattern of acts that related to the enterprise. Essentially, RICO criminalized participating in or
conducting a business of crime.
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166TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTSʼ LECTURESRICO is particularly useful for organized crime cases because it allows prosecutors to detail the complete
criminal activity of one person or a group of criminals. Significantly, RICO contains a reach-back provision,
which allows prosecutors to demonstrate a pattern of racketeering activity. Since indictments cannot usually
allege crimes that occurred more than five years prior to the date of the indictment, evidence of past criminal
activity is often outside the period for which a person could be prosecuted. However, under RICO, as long as
one of the predicate crimes alleged occurred within five years of when the indictment was first brought, thenext previous crime in the pattern of racketeering is only required to be within ten years of the most recent
crime. Similarly, the third most recent crime must have only occurred within ten years of the second act. In
this fashion, the reach-back feature allows this process to extend back as long as twenty years in the past, insome cases, making RICO particularly useful in organized crime cases involving systematic criminal activity
stretching across decades. RICO also allows prosecutors to present evidence of criminal activity from earlier
prosecutions, which would ordinarily be prohibited due to constitutional rules against successive prosecutionof the same conduct.
The reach of RICO is quite broad, as its predicate crimes cover various forms of criminal activities. Most
judges would ordinarily prohibit the prosecution of such diverse crimes in a single case and seek to break it
up into a series of smaller trials, especially if it involves many defendants. Splintered adjudication in thisfashion, where no single jury can see the entire picture of criminal activities, generally benefits organizedcrime groups, as their crimes are often composed of many crimes linked by a single chain of command. Thus,
effective prosecution of crime groups requires proof of many crimes in a single trial. RICO permits this,allowing the jury to see an entire pattern of crimes.
B. Extraterritorial Application of RICORICO is useful against transnational organized crime groups because it can reach some extraterritorialactivity. Generally, statutes have been found applicable to conduct outside of the United States where
inherent powers of the United States as a sovereign are threatened, or where its impact is on a substantial
number of U.S. citizens. It is settled U.S. law that Congress has the authority to enforce its laws beyond theterritorial boundaries of the United States when Congress expresses its intent that a particular statute hassuch extraterritorial application.6
RICOʼs legislative history reflects Congressional intent that the RICO statute be liberally construed toeffectuate its remedial purpose. Its broad goals of eliminating organized crime and effects of organized crime
warrant extraterritorial application. The language of the statute itself addresses racketeering enterprises“engaged in or the activities of which affect interstate or foreign commerce.”7 Moreover, Congress has added
new offences to the list of crimes which can be predicates for RICO that clearly apply to conduct outside of
the United States. These include alien smuggling violations which were added in 1994, and terrorism offences
which were added in 2001. The extraterritorial application of RICO in a given case must satisfy the Principles
of International Law as set for the in the Restatement of Foreign Relations, Section 402. These include theobjective territorial principle, nationality of the defendant, the passive personality principle, the protective
principle, and the universality principle.

VI. COMPELLED AND VOLUNTARY TESTIMONY
A. Immunity System
The ability to grant immunity to an individual allows the U.S. government to compel testimony from areluctant witness who would otherwise invoke the Fifth Amendment privilege against compulsory selfincrimination.8 This authority is derived from the principle that compelling its citizens to testify is one of thegovernmentʼs most important powers to assure effective functioning.9 Because a witness may not refuse tocomply with such a court order, the testimony, and any other information compelled by the order, cannot be
used against the witness in any subsequent criminal case.
Until 1970, there were many federal immunity statutes which provided transactional immunity, which is
See Equal Employment Opportunity Commʼn v. Arabian Am. Oil Co., 499 US, 244, 248 (1991).
18 U.S.C.A. § 1962(c) (West).
8
See 18 U.S.C.A. § 6002 (West); Kastigar v. United States, 406 U.S. 441 (1972).
9
See Murphy v. Waterfront Commʼn378 U.S. 52, 93 (1964) (White, J., concurring).
6
7

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providing immunity to witnesses from future prosecutions as to any transactions or matters about which heor she testified. Currently, however, the federal system has replaced transactional immunity with use
immunity. In 1970, Congress enacted use immunity statutes which proscribed the use in any criminal case of
testimony compelled under court-ordered immunity grants. Thus, use immunity only provides protection for
the witness from his or her own testimony. It does not immunize a witness from matters about which he or
she testified before a grand jury. While not providing as broad coverage as transactional immunity, use
immunity is nevertheless consistent with Fifth Amendment principles because it “prohibits the prosecutorial
authorities from using the compelled testimony in any respect, and it therefore insures that the testimony
cannot lead to the infliction of criminal penalties on the witness.”10
Federal prosecutors, with the approval of the Attorney General, the Deputy Attorney General, or adesignated Assistant Attorney General, may seek a court order granting immunity when, in thegovernmentʼs judgment, the testimony or other information is necessary in the public interest and theindividual has asserted, or is likely to assert, his or her privilege against self-incrimination. Non-exhaustive
factors in invoking the public interest include 1) the importance of the prosecution to effective enforcement of
the law, 2) the value of the personʼs testimony, and 3) the personʼs relative culpability in relation to the offence
being prosecuted. Finally, there is a “close family exception,” in which the Department refrains fromcompelling the testimony of a close family relative of the defendant on trial.
B. Non-Prosecution Agreements and Cooperation Agreements
In addition to the immunity system, there is also an “agreement” system which, while not contained in the
U.S. Code, is a widespread, valid practice in obtaining witnesses. There are two kinds of agreements that the
government can enter into with witnesses: non-prosecution agreements and cooperation agreements.
Non-prosecution agreements are generally used when the witness plays a minor role in a crime.11
Essentially, non-prosecution agreements grant immunity from prosecution from the case at bar in return for
full, truthful cooperation. However, in practice, they are rarely used.
Cooperation agreements, meanwhile, are the most commonly-used tool to gain truthful testimony from aculpable witness. These agreements require some liability for the witnessʼs criminal conduct; the defendant
agrees to fully and truthfully cooperate, testify in any court proceeding concerning matters asked of him orher, and enter a guilty plea on other charges. In exchange for this cooperation, the government files a motion
giving the judge special discretion in determining the defendantʼs sentence.12 Often the sentencing judge will
reduce an otherwise fixed sentence. This creates an incentive to cooperate, and often assists in prosecutingorganized crime groups.
During a trial which includes a witness testifying under immunity or under a non-prosecution orcooperation agreement, the prosecutor anticipates that the lawyer who represents the accused may attack
the witnessʼs credibility. The defence attorney may try to convince the jury that the witness will saywhatever the government wants him or her to say in order to receive the benefit of the deal negotiated in thecooperation agreement. To ensure credibility of these witnesses, prosecutors usually present additional
evidence which corroborates the testimony of the cooperators. Documentary evidence, forensic evidence,
surveillance, and the testimony of other witnesses are all used to bolster the juryʼs confidence in the truth ofcooperator testimony.

VII. WITNESS PROTECTION
Another valuable tool that assists the government in prosecuting organized crime groups is witness
protection. Because organized crime groups can often be violent, witness intimidation can pose a substantial
obstacle to successful prosecution. While the Witness Security Program, discussed below, is the most famous
witness protection system, police departments and federal agents also provide protection to witnesses asneeded. These ad hoc witness protection services remove obstacles to testimony by witnesses that mayotherwise be harmed before testifying or refuse to testify out of fear.
See Kastigar, 406 U.S. at 453.
U.S. Department of Justice, United States Attorneyʼs Manual, ch. 9, § 27.600 (B)(1)(c).
12
U.S. Sentencing Guidelines Manual, § 5K1.1 (2005).
10
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Separately, there are other witness programs that, while not providing protection, nonetheless remove
obstacles to witnesses testifying. The Emergency Witness Assistance Program (“EWAP”), for instance,
provides temporary funding for threatened witnesses, including transportation, housing and moving
expenses, subsistence, telephones, and child or elder care.
A. Witness Security Program
The Department of Justice created the Federal Witness Security Program in 1970. Subsequently, theWitness Security Reform Act, passed in 1984, expanded the authority of the Attorney General to provide
security through relocation for witnesses in cases involving organized crime or other serious offences wherea violent crime against the witness is likely to occur.
Requests for witness protection are made when it is clear that a candidate will be an essential witness,
and will require relocation from the danger area. Due to the safety concerns of a witness and his or her
family, a witnessʼs participation in the Program is not disclosed unless the Department of Justiceʼs Office ofEnforcement Operations authorizes it. For a witness to be admitted into the Program, he or she must supply
significant evidence in important cases, and must show that there is a perceived threat to his or her security.
Before approval for entry, the United States Marshals Service (“USMS”) must conduct procedures tominimize disruption to both government agencies and witnesses. First, the USMS will interview the applicant
so as to determine that the witness is essential to the prosecution, is endangered, and requires entry into theProgram. The witness is also provided with an overview of the Program and what he or she can, and cannot,
expect to receive through it. Next, the USMS will arrange for psychological testing and evaluation for eachprospective witness and adult member of the witnessʼs household who are also to be protected. This test willattempt to determine if the individuals will pose a safety risk to their relocation communities. Potential
participants who are incarcerated are required to undergo a polygraph examination to ensure that they do
not intend to harm or disclose other protected witnesses.
In order to ensure that the witnessʼs testimony will be available at trial, it is recommended that thewitness either testify before a grand jury or otherwise commit to providing the requested testimony at trial.
Once in the Program, the witness and his or her family are relocated to a less dangerous area, and are given
new identities and financial assistance until the witness can obtain secure employment.
Transnational organized crime groups presents a new challenge since the Witness Security Program
operates only in the United States. However, aliens can be eligible for the Program following appropriate
immigration authorization allowing the witness and family members to remain in the United States. Despite
its costs, the Witness Security Program has proven to be effective in the prosecution of organized crimegroups.

VIII. FINANCIAL TOOLS, INCLUDING FORFEITURE
A. Financial Tools
There are two primary reasons why a government may choose to follow the money and assets oforganized crime groups using financial tools. First, many people commit crime for the money and assets itgives them. Accordingly, the government can catch criminals through their money and assets, by following
the paper trails and digital trails left by the criminal networks. Once the government has found the money
and assets, it can forfeit the money and the assets, and provide restitution to any victims. Second, money also
helps pay for more crimes. By cutting off the flow of money and forfeiting it, the government can help
prevent future crimes from being committed.
Financial tools can help many different kinds of investigations. Financial tools are not only used forinvestigations of financial crimes, such as money laundering and fraud. For instance, financial tools can also be
used to investigate organized crime groups, violent crimes, human trafficking/smuggling, narcotics, child
exploitation, terrorism, cybercrime, and public corruption.
There are different kinds of kinds of financial information that government investigators can obtain,
including:

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1) Ordinary records from financial institutions, such as records about checks, credit cards, savings, loans,investments, and safe deposit boxes.
2) Due diligence records, also known as “Know Your Customer” records. These are account opening
records and account monitoring records that financial institutions maintain about their customers, suchas corporate history, signature cards, references, and taxes.
3) Records that financial institutions are required by law to create and maintain, such as Currency
Transaction Reports (“CTRs”) and Suspicious Activity Reports (“SARs”).
4) Electronic fund transfers, including international wire transfers through SWIFT.
5) Nonbank financial records, such as hawala and hundi.
In most countries, including the United States, domestic financial information is available through legal
process, such as subpoenas or court orders. In some countries, domestic financial records are available togovernment investigators automatically, without the need for legal process. There are different ways toobtain foreign financial information, including:
1) Treaty requests, which are official requests for information through bilateral Mutual Legal Assistance
Treaties or international legal conventions.
2) Law enforcement agency contacts, in which a governmentʼs law enforcement agency requests andobtains information from a law enforcement agency in another country.
3) Requests through the Egmont Group.
The Egmont Group is composed of government Financial Intelligence Units (“FIUs”) from more than 150
countries. The Egmont Group focuses on fighting money laundering, terrorist financing, and other financial
crimes. It is open to new member countries, at www.egmontgroup.org/membership. The Egmont Grouphelps member states share financial information with each other.
B. ForfeitureWith the exception of organized crime groups that commit violence for the sake of power and dominance,such as certain gangs, organized crime groups are primarily motivated by material gain. Therefore, it isessential to take the profit out of crime. Strong forfeiture laws aid in that mission. Forfeiture is a criminal
penalty for many offences in the United States.
Generally speaking, upon conviction for an offence that carries forfeiture as a penalty, a defendant may beordered to forfeit all profits or proceeds derived from the criminal activity, any property, real or personnel,
involved in the offence, or property traceable to the offence such as property acquired with proceeds ofcriminal activity. For example, if a defendant uses a residence or car to distribute drugs, that property is
subject to forfeiture. Thus, a convicted defendant may be ordered to forfeit all proceeds of his or her criminal
activity including money and other forms of property.
In addition to criminal forfeiture, civil forfeiture laws also allow the government to obtain property used incriminal activities. The principal difference between criminal and civil forfeiture is that criminal forfeiture islimited to a convicted defendantʼs personal interest in property subject to forfeiture, whereas civil forfeiture
focuses on the property itself.
For example, suppose a defendant repeatedly used a house to sell drugs, but he did not have an ownershipinterest in the house. If he is convicted of drug dealing, that house is not subject to criminal forfeiture because
the defendant did not own the house. However, a civil forfeiture law suit could be brought against the houseitself as a defendant, even if the owner of the house was not engaged in criminal activity. The house,nonetheless, is subject to civil forfeiture because it was repeatedly used to facilitate criminal activities, andthe owner did not take adequate steps to prevent his house from being used for criminal activities. There arevarious defenses to such civil forfeiture, such as the “innocent owner defense”, but those are beyond the scope
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166TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTSʼ LECTURESof this article.
Criminal and civil forfeiture laws are powerful weapons in the prosecutorʼs arsenal to take the profit out ofcrime.

IX. CONCLUSION
Organized crime groups operate all over the world, whether they take the shape of the Mafia, gangs,
cybercrime groups, or a variety of other forms. Likewise, they pose a variety of dangers, including murders,child exploitation, human trafficking, robbery, frauds, narcotics, identity theft, and extortion. In recent years,
these dangers have been amplified by advances in technology and globalization. Capitalizing on theseadvances, organized crime groups communicate faster, hide their money in more locations, travel morecheaply, and may conceal their activities through encryption. The tools discussed in this article are essential
to the U.S. governmentʼs efforts against such organized crime groups. Electronic surveillance, undercover
operations, informants, RICO, compelled and cooperating witness testimony, witness protection, and financial
tools such as forfeiture all help the U.S. government pierce the secretive and violent world of organized crimegroups and bring those groups to justice.

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