ELECTRONIC SURVEILLANCE IN THE UNITED STATES:A CASE STUDY
Julie P. Wuslich*
I. INTRODUCTION
The f ollo wing is a case study o f atypical electronic surveillance
investigation. This case study begins with
the initial investigation, and proceeds
through preparing the evidence for trial.
II. THE INVESTIGATIONOn February 22, 2001, FBI Special
Agent Clark Kent interviewe d a
confidential government informant (“CI1”). CI-1 has provided reliable
information in other investigations, andin those investigations, CI-1 bought drugs
and introduced undercover agents to thetargets of those investigations. CI-1’s
information has been used previously inarrest warrants and search warrants.
The information that CI-1 has provided int hi s ca se h a s b e e n co r r o b o ra te d b yphysical surveillance of the subjects, andinform a tion f rom othe r confide ntial
informants and an undercover agent. CI1 has a prior conviction for possession of
cocaine, and is cooperating with the FBI
in this investigation in hopes of gaining
leniency for a family member who has
pending drug charges.

* Chief, Electronic Surveillance Unit, Office ofEnforcement Operations, Criminal Division,
United States Department of Justice** As a consequence of the terrorist attacks in the
U.S.A. on 11 September 2001, Ms. Wuslich was
u n ab l e to a t te n d th e 1 1 9 th I n te r n a ti o n a lTraining Course. Copies of the two lectures Ms.
Wuslich had prepared were distributed to all of
the participants.

526

During the interview on February 22,
CI-1 told Agent Kent that Robert Gerard(“Gerard”) and members of his drug crew
distribute cocaine and heroin in the
Keeney Heights area of Washington,
D.C., and that CI-1 bought cocaine from
“J-Boy,” a member of Gerard’s crew, inD e cem b e r 2 0 0 0. C I - 1 i d en t if i e d t hefollowing persons as members of Gerard’s
drug crew: “Little G,” “Kay Kay,” and“Swee t N a ncy. ” A ge nt Ke nt show e ddriver’s license photographs to CI-1 andCI-1 was able to identify Little G as Gene
Blum, Kay Kay as Katrina Karr, andSweet Nancy as Nancy Prim.
On M arch 3 0, 2001, Agen t K en t
learned that Fred Hend ricks was
murde red that day in the sameneighborhood in Keeney Heights where
Gerard lives. Agent Kent reviewed theofficial police reports written by the local
police officers investigating the murder.
Based upon those reports, Agent Kent
learned that Gene Blum, Bridget Lynn,
and Natasha Spencer were present at thescene of the murder on March 30. Thosere ports a lso conta ined the follow ing
information: The police questioned eachof these individuals about the murder.
Lynn and Spencer denied any knowledgeof the circumstances surrounding themurder. As to Blum, when police arrived
at the scene, he was seen trying to leave
the a rea o n a m otorcycle. B lum w a s
detained and he volunteered to answer
some questions. During the questioning,
Blum advised the police that there was a
q u a nt it y o f c oc a i n e i ns id e a l o ck e dcompartment in the motorcycle. Blumgave the keys to the compartment to the119TH INTERNATIONAL TRAINING COURSE
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officer. Later that day, the police obtained
a sea rch w arrant for the m otorcycle
compartment. The next day, the search
warrant was executed and approximately
one quarter of a kilogram of cocaine wasfound inside. Because Blum is suspectedin the mu rde r o f Fr ed H end rick s, adecision was made not to charge Blumwith any crime at this time, but rather tocontinue the investigation.
On April 5, 2001, Gerard’s house wasburned to the groun d. Agent Kent
reviewed police reports of the incident,
which reflected that witnesses saw threeu nid en tifie d m a le s en te r t he ho us ecarrying gasoline, and set the house on
fire. Two persons, one of whom was an
infant male, were inside the house when
the fire was set, and died as a result.
Gerard was not at home at the time of thefire.
On A pril 25, 2001, A gent Kentinterviewed Stephen Simon, who has
been indicted on charges of distributing
cocaine. Simon provided the following
information as part of a plea bargain in
his pending case. In the presence of his
attorney, Simon told Agent Kent that he
was a member of a rival drug gang, andthat he knows Gerard and Blum. Simon
stated that Gerard had given Hendricks
two kilograms of cocaine on consignment,
and when Hendricks failed to pay Gerard
for the cocaine, Gerard had Hendricks
killed. Simon stated that he learned thisinformation from his girlfriend, Natasha
Spencer, who was at the scene of them u r d e r . S im o n st a t e d f ur th e r th a t
G e r a rd r ec eiv es la rg e ship m e nts o f
cocaine every few months, and that hesells cocaine for $17,500 per kilogram.
O n M a y 5 , 2 0 0 1 , t h e l o c a l p o li c ein te rvie we d an ind ivi du al who was
w illing to provide information about
Gerard’s drug trafficking activities. Thisp e rs o n ( “C I - 2 ”) h a s n e ve r p ro v id e dinformation to law enforcement before
and, therefore, his reliability is unknown.
CI-2 stated that Gerard and Blum areheavily involved in drug trafficking andare very violent. On May 11, 2001, CI-2
told the local police that Gerard andmembers of his crew were at the Starlight
Motel in Raljon, Maryland. Based on thisinform ation, local police officers
established surveillance at the motel.
During the surveillance, officers saw
Gerard, Blum, and several unidentified
males enter and exit two motel rooms.
On May 13, 2001, an undercover FBI
agent (“UC”) was sent to the Starlight
Motel to apply for employment. On May
18 , 20 0 1, t he UC b egan w ork a t theStarlight Motel as a maintenance worker.
On May 20, 2001, CI-2 told the local
police that Gerard and Blum were at theStarlight Mo tel, and that they wereselling drugs from a room there. That day
and the following day (May 21, 2001),
surveillance agents observed Gerard andBlum entering and exiting room 123. In
addition, throughout the day, several
unidentified males were seen entering
room 123, staying a few minutes, andthen leaving the room.
On May 25, 2001, CI-2 stated that
Blum had gone to the Starlight Motelagain to sell drugs. T he lo ca l police
conducted surveillance of the motel andsaw Blum exit room 178. Blum entered a
Chevy Suburban truck that was being
driven by a female. Surveillance agentslater identified this female fromphotographs as Nancy Prim. One hourlater, agents saw the Chevy Suburban
return to the motel. Blum exited the carand entered room 178. Prim, the driver,
departed the area.

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RESOURCE MATERIAL SERIES No. 59
On May 25, 2001, the UC was working
at the motel, when someone from room
178 called the front desk to complain
about a maintenance problem. The UC
went to room 178 to fix the problem andobserved Blum a nd two unidentified
males inside the room. When the UC
arrived, he heard Blum refer to one of theunidentified males as “J-Boy.” While in
the room, the UC used the telephone to
make a call to another police officer.
During the call, the UC mentioned goingto a party and getting some cocaine totake to the party. Blum overheard theUC’s call and offered to sell the UC somecocaine. The UC, who was w earing arecording device, recorded his
conversation w ith Blum. During theconversation, Blum stated, “I can get you
all the coke you want. How much do you
want?” The UC replied, “I’ll take an oz(one ounce of cocaine).” Blum told the UC
to call him later at the motel. The UC
then left the room.
T h a t e v e n i n g , t h e U C c a ll e d t h etelephone in room 178 and spoke to Blum.
The UC recorded his conversation with
Blum. During the call, the UC and Blum
agreed to a price of $1,100 for one ounceof cocaine. Blum gave the UC his pager
number and told the UC to page him atthat number when the UC was ready to
conduct the drug deal.
On May 26, 2001, at 9:15 a.m., the UC
paged Blum at the number he was given,and input the telephone number of his
cellular telephone. At 9:20 a.m., the UC
received a call from Blum. The caller
identification device on the UC’s cellular
phone revealed that Blum was callingfrom a telephone bearing the number(202) 514-1234. During this conversation,
which the UC recorded, the UC told Blumthat he was ready to buy some cocaine
from him. Blum instructed the UC tomeet him at room 178 at the Starlight528

Motel at 10:30 a.m. Blum then ended thecall. Later, the FB I subp oenaed1
telephone records for Blum’s phone, (202)514-1234 (hereinafter, referred to as the“target phone”). Those records show that
immediately after Blum ended the callwith the UC, the target phone was used
to call a pager. The FBI subpoenaed
records for the pager from the service
provider, and learned that the pager issubscribed to in the name of Dorothy
Gerard, Gerard’s mother. At 10:30 a.m.,the UC arrived at the motel and met
Blum in room 178. The UC bought one
ounce of cocaine from Blum in exchange
for $ 1,1 00 . Mea nwhile, surve illance
agents were outside the motel. After thetransaction, the UC left the motel room,
followed by Blum. Blum entered a white
Ford Navigator sport utility vehicle anddrove away from the motel. Surveillance
age nts f o llo we d B lu m t o I nte r state
Highway 95. While Blum was driving on
Interstate 95, he slowed down and drove
along side of the car being driven by thesurveillance agents. Blum waived to theagents and then sped off. Realizing thatthe y had be en d e te cte d , th e age n ts
discontinued surveillance of Blum.
On June 2, 2001, the UC attempted tocontact Blum at the pager number Blum
had given the UC. The UC never received
a call back from Blum.
On June 22, 2001, a local police officer
contacted Agent Kent and advised that
she had been contacted by a confidential
informant (“CI-3”). The police officer
advised Agent Kent that CI-3 wasreliab le, and that CI-3 had provided
credible information to her in the past.
The police officer advised that CI-3, who
is associated with many gang members,
knows that Blum uses the target phone infurtherance of his drug business.
1

18 U.S.C. §2703(c)(1)(C).

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On June 28, 2001, Agent Kent learnedof another c onfidential in for mant
working for the local police (“CI-4”). CI-4
has never provided information before,
but knows Blum and has bought cocaine
from Blum on several occasions within
the last six months, most recently in the
beginning of June 2001. CI-4 stated that
he has never bought cocaine from Gerard,
but knows that Blum works for Gerard asa drug distributor. CI-4 indicated that hewould be willing to contact Blum to buy
cocaine, but that he was not willing torecord any of his conversations w ith
Blum. CI-4 stated that, given the drugcrew’s reputation for violence, he feared
retribution from Blum or others, if therecording equipment was detected on his
person.
On August 1, 2001, at 1:20 p.m., CI-4
paged Blum and input the telephone
number where CI-4 could be reached. At
1:45 p.m., Blum called CI-4. Subpoenaed
phone records for the target phone showthat a t approximately 1:45 p.m., thetarget phone w as used to call CI-4’s
phone. According to CI-4, he told Blumthat he wanted to buy an ounce o f
cocaine. Blum told CI-4 to meet him at agas station in one hour. One hour later,
CI-4 went to the gas station. Before CI-4
arrived at the gas station, Agent Kent
se a rc he d C I - 4 f o r co ntra b a nd , w ith
negative results, and gave CI-4 $1,100 in
pre-recorded governm ent funds.
Surveillance agents then observed CI-4
approach the gas station. A short whilelater, Blum arrived at the gas station in a
red Lexus automobile. Blum got out of his
car and walked over to CI-4. Agents saw
CI-4 hand something to B lum. Blum
returned to his car, reached inside, andreturned to CI-4. Blum handed an object
to CI-4. CI-4 left the gas station andBlum drove away. CI-4 then met with
Agent Kent and gave him one ounce of a

substance that later tested positive forthe presence of cocaine.
On August 5, 2001, Agent Kent
subpoenaed telephone records for thetarget phone from the service provider. A
re v ie w o f th o se r ec o r d s sh o w s t ha t
between July 2, and August 2, 2001, theta rget p hone w a s used to m ak e a ndreceive a total of 1,144 calls. Of that total
number of calls, Agent Kent determinedthat the target phone was used to makecalls to the following telephone numbers:
1) 34 calls to the pager believed to be usedby Gerard, most recently on August 1,
2001; 2) 22 calls to a residential phone
subscribed to by Dorothy Gerard, mostrecently on July 23, 2001. Agents
conducting physical surveillance haveseen Gerard frequent this residence; and
3) 19 calls to a telephone at the Starlight
Motel, most recently on July 28, 2001.
Agents observed Gerard, “J-Boy,” andNancy Prim at the Starlight Motel on
July 22, 2001, and saw “J-Boy” at the
motel on July 28, 2001.
III. POST-APPROVAL PROCESS
Based upon the above facts, on August
10, 2001, the FBI agent and theprosecutor submitted an application anda n a f f id a v it 2 t o t h e D e p a r t m e n t o f
Justice, seeking approval to conduct
ele ctro nic sur ve illa n ce o ve r B lum ’ sphone—the target phone—in connection
with their investigation of federal drug
crimes being committed by Blum andothers. On August 12, 2001, theDepa rtment of Justice approved theapplication,3 authorizing the prosecutor
to seek a court order for the electronic
surveillance. On August 13, 2001, theprosecutor submitted the application andaffida vit to a judge for approva l. On
2

See Attachments A and B.

3

See Attachment C.

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RESOURCE MATERIAL SERIES No. 59
August 13, 2001, the judge signed theorder4 granting authorization to intercept
wire communications over the targetp h o n e u se d b y B lu m to in v e sti ga t efederal drug violations being committed
by him and his co-conspirators.
IV. CONDUCTING THE
ELECTRONIC SURVEILLANCE
A. The Logistics
1. The Personnel
Conducting an electronic surveillance
investigation is a manpower intensive
operation, requiring the requisite numberof monitors (those persons who will beintercepting and recording thecommunications) and an adequate
number of law enforcement officers toprovide investigative assistance during
the course of the investigation.
Depending on the type of criminal
activity being investigated, thegovernment may want to monitor the
telephone or the location, 24 hours a day,seven days a week. In a typical drug
investigation, like the one describedabove, the government will monitor the
telephone on a constant basis and anissue will be whether the government canlocate and train enough monitors in order
to comply with Title III’s minimization
requirements as outlined in 18 U.S.C.
§2518(5). In addition to the hours during
which the interception will be conducted,
the government must determine if it willn e e d m o n ito rs w ho sp e a k a f o r e ign
language or who are conversant in thecoded language that the subjects may beusing to discuss their criminal activity.
Drug dealers often discuss their illegal
activities in coded terms. In one
investigation, the drug traffickers had
their own language, where they used4

See Attachment D.

530

numbers to represent the letters of thealphabet. By the end of the investigation,
the government had a complete
dictionary of coded words that the drug
dealers used.
M any tim es, the m onitors are notfederal law enforcement agents. Title III
permits the use of local and state police
officers and contract personnel (such as
foreign language translators) to monitor
the communications as long as they are
under the supervision of a federal agent.5
As to the req uisite num ber of la w
enforcement personnel, it is critical thatthe government has enough officers toengage in complimentary investigative
action to corroborate and support theelectronic surveillance evidence. Fore x a m p le , a s e x p l a i ne d a b o v e , d r u g
dealers often use coded language whenconversing with one another over the
telephone, and sometimes will use codewords that reflect legitimate businessactivities in which they may be involved.
In one recent case, the drug dealer owned
an auto repair shop. When the dealer
discussed his drug trafficking activities
over the telephone, he often usedterminology related to the auto repair
business. Physical surveillance of his
business was used to show that, despite
his claims that his calls were related to
his legitimate business, he had very few
customers, performed very little, if any,
auto repair work, and that his business
was often closed during normal businesshours. In addition, through physicalsurveillance, the agents were able to seize
a load of cocaine based upon a series ofcalls that were intercepted over the drug
dealer’s telephone, 6 in which the dealer
used word s r elated to h is business.
5

18 U.S.C. §2518(5); United States v. Lyons, 695
F. 2d 80 2 (4th Cir . 19 82 ); Uni ted State s v.
Manfredi, 488 F.2d 588 (2d Cir. 1973).

119TH INTERNATIONAL TRAINING COURSE
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W i th o u t p h y sic a l su r v e ill an c e , t h egovernment would not have been able tocontradict the drug dealer’s assertions
that his calls were innocent in nature, norwould it have been able to seize
corroborative evidence, in this case a loadof cocaine, of his drug dealing.
Intercepted communications, in and ofthemselves, are rarely enough to convictt he su b j e ct s o f th e c r im e s. R a t he r ,intercepted communications are a meansby which to e stablish re la tio nsh ip s
between individuals and to locate
evidence that will be used at trial to provet h e c r im e s . W i t h o u t c o r r o b o r a t i v ee vid enc e o b ta ined thro ugh p hysic alsurveillance and other investiga tive
techniques, the wiretap evidence has
little or no meaning to a trier of fact.
2. Where to Monitor theCommunications
Under Title III, a court can only issue
an order for communications that will beintercepted within its territorial
jurisdiction. 7 J udicial opinions havedefined the term “interception” broadly sothat it can occur in at least two places: 1)
where the interception (or initial captureof the commun ication s) will occur
technically for the first time (this is
usually the place where the premises are
physically located or where the telephone
is being used), or 2) where thecommunications will be redirected and6

18 U.S.C. §2517(1), (2) permit the disclosure ofel ectronic su rveillan ce evidence by law
enforcement officers to other officers while acting
in the proper performance of their duties. See also
United States v. Vento, 533 F.2d 838 (3rd Cir.
1976); United States v. Rabstein, 554 F.2d 190

heard or accessed by the government for
the first time (the monitoring location). 8
It is the policy of the Department ofJustice that if the government is going tolisten to, or access, the communications
in a jurisdiction where the premises are
not located or where the telephone is not
being used, there must be someinvestigative connection to thatjurisdiction, i.e., some element of thecriminal conspiracy is occurring there.
Usually, the telephone or the premises islocated in the same jurisdiction where thegovernment will be monitoring (i.e.,
listening to or accessing) thecommunications, but that is not always
the case. In the scenario outlined above,
subject Blum uses a cellular telephone in
two jurisdictions, Washington, D.C., andMaryland, to commit his drug trafficking
activities. It would be permissible under
Title III to obtain the court order in either
place. In this instance, it is likely thegovernment would obtain the court orderfrom a judge in the jurisdiction where it
can monitor the communications.
Given the mobility of cellular
telephones and the ability to access theInternet from anyw here, traditiona lnotions of jurisdiction and where aninterception of a communication actuallytakes place no longer apply. In the case ofcomputers, consider this example: thesubject lives in jurisdiction A, where he or
she orchestrates a nationwide criminal
conspiracy using his or her homecomputer; the Internet service provider
that processes the communications is injurisdiction B, where the communications
are captured or intercepted, in technicalterms, for the first time; and the law
enforcement agency investigating the(5th Cir. 1977). Section 2517 does not authorize
disclosure of wiretap information to foreign law
enforcement officers. United Kingdom v. United
7

8

United States v. Rodriguez, 968 F.2d 130 (2d Cir.
1992); United States v. Denman, 100 F.3d 399

States of America, 238 F.3d 1312 (11th Cir. 2001).

(5th Cir. 1996); United States v. Jackson, 207

18 U.S.C. §2518(3).

F.3d 910 (7th Cir. 2000).

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RESOURCE MATERIAL SERIES No. 59
case is in jurisdiction C, where someelements of the criminal conspiracy are
occurring and where it has the technicalcap abi lit y t o acces s t he s ubject ’scommunications from the service
provider. Arguably, jurisdiction could lie
in all three of these places. Most likely,
the government would obtain the court
order authorizing the interception of thesubject’s communications in jurisdiction
A, where the subject is actually using theco m pute r to com m it the cr im es a nd
w h e r e h e o r sh e w ill u lti m a te l y b eprosecuted for them.
Consequently, when considering thecourt’s jurisdiction to authorize theinterception of communications in today’s
technically advanced world, it isi m p o r t a n t t o co n si d e r t h e t y p e s o fcommunication devices that criminals use
to facilitate their crim es, law
enforcement’s ability to intercept thosecomm unications,andthetelecommunication industry’s ability toa ssist la w enforcem ent in this a rea.
Jurisdiction is no longer a concept defined
strictly by geographical b oundaries.
Technology has erased those boundaries
and now permits criminals a global reach,allowing them to facilitate thecommission of crimes in places far from
where they may be.

investigation. The initial training of themonitors involves two components. First,
the monitors must read the affidavit thatwas submitted for approval so that they
understand the investigation, know who
the subjects are, and what crimes arebeing committed. Second, the prosecutor
must instruct the monitors about theproper minimization procedures. 9 The
m o n it o rs m u st no t o n ly a tt e m p t tominimize the interception of innocent
comm unications, but also they musta vo id inte rc ep ti ng co m m un ica ti on s
between persons and their attorneys,
between husbands and wives, between
d o c t o r s a n d p a t ie n t s, a n d b e tw e e nparishioners and clergy. 10 Additionally,
the prosecutor must instruct the monitors
ab out how long they can intercept a
com m unica tion to d eterm ine if it iscriminal in na ture, 1 1 what to do if a
privileged com municationwasintercepted inadvertently, and how tomaintain the recordings in a way that

9

See Attachment E.

10 18 U.S.C. §2517(4). It should be noted, however,that if an attorney, spouse, doctor, or clergyman isi nvol ved in the cri mi na l co nspi racy, thegovernment may intercept the communications.
For example, in alien smuggling cases, attorneys
are often used to obtain fraudulent documents forthe illegal aliens. In insurance fraud c ases,

B. The Role Of The Prosecutor
1. Training the Monitors
The p rosecutor and the lead
investigating agent are responsible fortraining the monitors, those persons whowill be intercepting, listening to, andr ec ord ing the co m m unica tio ns. Th emonitors may not be law enforcement
agents, but could be support personnel
who wor k for the law enfo rcem ent
agency, foreign language translators, or
local police officers with no experience in
conducting an electronic surveillance532

doctors are often co-conspirators by performing
unnecessary medical procedures or providing
false documentation to support an insurance
claim. See United States v. Zolin, 491 U.S. 554(1962) (crime fraud exception to attorney-client
privilege); United States v. Dube, 820 F.2d 886(7th Cir. 1987)(clergy-penitent privilege did not
apply where person was seeking relief from his
obligation to pay taxes); United States v. Gotti,
771 F. Supp. 535 (E.D.N.Y. 1991) (o utline s
elem ents of a privileged attorn ey- cli ent
relationship); United States v. Cooper, 2000 WL
135248 (D.D.C.) (crime fraud exception applies tomarital communications).

119TH INTERNATIONAL TRAINING COURSE
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will preserve their integrity for use laterat trial.
Onc e the inte rcep tion be gins, theprosecutor and the lead agent will need tocontinue to ad vise the monitors,
particularly any new monitors, aboutdevelopments in the case of which they
are not aware. For example, they willn e e d t o i n f o r m t h e m o n it o r s o f : 1 )patterns of innocent conduct that aredeveloping and the need to minimize theinterception of communications relating
to it; 2) whether the subjects are involvedin crimes that were not listed in the
court’s order; 3) whether new subjects
h a v e b e e n id e n t if i e d ; 4 ) w h e t he r a
p r iv i l e g e d r e la t io n s h ip n o w e x i st s
involving any of the subjects; and 5) the
identification of locations that may be
used by the subjects to facilitate theircrimes.
2. Submission of Progress Reports
When the government applies for an
order to conduct electronic surveillance,
the judge routinely orders the prosecutor
to submit progress reports to him or her
every ten days during the 30-day
a u t ho ri z a t i on p e ri od . 1 2 Th er e is n ostandard format for progress reports but,
typically, they include information about:1) the total number of communications
intercepted; 2) the number ofco m mun ic atio ns that re late d to th e
11 The monitors often use a procedure called “spotmonitoring,” whereby the monitor will listen to atelephone call or face-to-face conversation for ash ort peri od of ti m e to d eterm i ne if th ecommunication is criminal in nature. If the call orconversation does not appear to be criminal, thec r im e s u n d e r i nv e st i g a t i o n ; 3 ) t h enumber of innocent communications
intercepted; 4) whether any new subjects
have been identified; 5) whether there
ha ve been seizures of contraba nd orarrests of any of the subjects; 6) whether
communications about crimes not listed
in the order were intercepted; 7) whether
there have been technical problems with
the interception; and 8) why theg o v e r n m e n t n e e d s t o c o n t in u e t h einterception to meet its investigative
goals.
Progress reports are meant to keep thejudge a pprised of d eve lopm ents andproblems in an electronic surveillance
investigation, thereby giving the judge
the opportunity to exercise his or her
discretion and terminate theinterceptions if the judge determines thatthe investigative goals have been met, orthat the government is not conducting theinterceptions in a lawful manner.
3. Providing Legal Advice and Support
The prosecutor should be an active
participant in the conduct of theelectronic surveillance, by supervisingand advising the law enforcement agents
conducting the investigation. Often,
problems will arise that require a legal
opinion that the law enforcement officers
are incapable of making because theylack the experience or training.
Generally, the prosecutor’s role is toensure the admissibility of the evidence
at trial, to ensure the development of thebest evidence, and to make sure that theele ctronic surveillance is conducted
prop erly. Consider the following
examples.

monitor will cease interceptions for a brief periodof time, and then resume listening to the call orconversation once again. This process may berepeated several times during the interception ofa call or conversation.
12 18 U.S.C. §2518(6).

Many times during a Title III
in ve s tig at io n, th e g o ve r nm e nt wil lintercept communications about crimes
that were not listed in the court’s order. If
the government wants to be able to use

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RESOURCE MATERIAL SERIES No. 59
this evidence later, the prosecutor must
apply to the court for an order allowing
the government to use thesecommunications in furtherance of its
investigation, particularly in any court
p ro cee ding that m a y arise fro m theinvestigation.13 For instance, if the court
order authorized the interception ofcomm unications related to drugtrafficking, and telephone calls aboutp r o s t i tu t i o n w e r e i n te r c e p t e d , t h eprosecutor must submit an application to
the judge asking permission to be able touse the prostitution calls in its
investigation of the sub jects, a nd to
disclose the contents of those calls at a
subsequent trial of the subjects. In theinvestigation outlined above, it is likelythat conversations about crimes related
to the subjects’ drug-trafficking activity
will be intercepted. Given the subjects’
propensity for violence, the government
may intercept calls about attempts tocommit acts of violence in connection withthe subjects’ drug business. Likewise, thegovernment would have to obtain a court
order allowing it to use these calls in its
prosecution of the subjects. Alternatively,
if the government wants to extend theelectronic surveillance investigation
beyond the first 30 days of interceptions,the government may seek to expand its
investigation by including information
about these new crimes in the application
and affidavit in support of the extension
order. The judge may then issue an orderauthorizing the government to continue
to intercept communications about thesecrimes for a 30-day period.
It is also common during the course ofa n e le ctro nic surve illance nar cotics
investigation that the law enforcement
agents will develop evidence about where
drugs are being stored or how they arebeing transported, and the prosecutor

must advise the agents how to seize that
evidence legally, without compromising
the on go ing e lec tro nic s urv eillan ce
investigation. For example, thegovernm ent may intercept calls
indicating that a load of drugs will betransported in a vehicle from one location
to a n o th er . Giv e n d r ug tr a f f ic k er s’na tural wa riness that they could beunder investigation, the prosecutor andthe agents must decide when and how to
seize the drugs without alerting the
sub jects of the on going electronics ur v e il la n c e i n v e s ti g a t i o n . I n th i sscenario, the prosecutor could advise theagents to give a description of the vehicle
to the local police, telling them that thevehicle may contain drugs, 14 and ask
them to stop the vehicle on a pretext,
such as a traffic infraction.15 The police
officer could then ask the driver of thevehicle to consent to a search of the car. If
the driver does consent to the search,w h ic h i s c o m m o n , t he o f f ic e r co u ld
discover and seize the drugs.
When contemplating this action, theprosecutor must consider whether toadvise the local police to arrest the driver
if drugs are found. An arrest andsubsequent prosecution of the driver may
require divulging the existence of theongoing electronic surveillance
investigation before the government’s
in ve s tig at ive g o als ha ve be e n m e t,
because the primary reason the vehicle
was stopped was based on informationfrom the wiretap that the vehicle
contained drugs. In the investigation
outlined herein, there is another, moresinister risk. Given Gerard’s propensity
for violence, he may take retaliatory
action against the driver, if the drivercannot show that the drugs were seized
14 18 U.S.C. §2517(1).
15 Arkansas

13 18 U.S.C. §2517(5).

534v. Sullivan, 121 S.Ct. 1876 (2001)(pretext stops are permissible).

119TH INTERNATIONAL TRAINING COURSE
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by law enforcement. Gerard, suspectingthat the driver kept the drugs for himself,
may harm him.
C. The Role Of The Judge
When Congress enacted Title III, it
contemplated, by permitting or requiringt h e j u d g e t o a ss u m e c e r t a i n
responsibilities, that the judge who issued
the order authorizing the electronic
surveillance would be an active participant
in the investigation. Specifically, a s
discussed above, Title III permits the judge
to require that the prosecutor submit
p r og re ss re p o rt s d u rin g the 3 0 - d a yinterception period. In addition, if thegovernment intercepts communications
about crimes not authorized forinterception in the order, the government
must obtain permission from the judge tou s e t h o se c o m m u n ic a t i o n s in i t sinvestigationandp r o s e c u ti o n .
Additionally, the judge must order therecordings of the communications sealedf o r sa f e k e e p in g , a n d d i r e c t t h egovernm ent’s e ffo rts to notif y those
persons who were intercepted during thecourse of the electronic surveillance
investigation that they were the subject ofa wiretap.
Not only does Title III encourage ajudge’s active pa rt ici pati on in anelectronic surveillance investigation, butappellate courts are more forgiving ofgovernment mistakes or missteps in anelectronic surveillance investigation if thesupervising judge was awa re of, andcondoned, the government’s actions.16

16 United

States v. Bascaro, 742 F.2d 1335 (11thCir. 1984) (court authorized interceptions toco ntin ue o ver a te le pho ne w i th a di ffe r ent
telephone number); United States v. Ozar, 50
F.3d 1440 (8th Cir. 1995) (court approved thegovernment’s minimization procedures).

V. TERMINATION OF THE
INVESTIGATION
A. Policy Considerations
I n e v er y in ve s tig atio n , a t en sio nalways exists between tolerating ongoing
criminal activity known to have adevastating effect on individuals and thecommunity at large, and the need toaccumulate enough evidence to dismantle
the criminal organization and toprosecute the subjects successfully. For
instance, in a drug investigation, theintercepted communications and theaccompanying physical surveillance showthat cocaine is being sold on a daily basis
fr om a n a b a nd one d b ui l d in g ne a r aschool, and that this activity is putting
children at risk. In alien sm uggling
investigations, there is evidence that theillegal a liens a re be ing sub je cted todangerous conditions that might result intheir death. Child pornography
investigations may reveal that ap e d op h ile is c o nt ac tin g p o te nt iallyhundreds of children a month. In the
scenario set forth above, drug trafficker
Gerard has exhibited a willingness to use
violence in connection with his drugtrafficking activities, and retaliatory
action by unknown persons resulted inadditional deaths.
Occa siona lly, during an electronic
surveillance
investigation,
co mmunica tions ma y be intercepted
where the subjects are planning to killsomeone. Most of the time, the intended
vic tim i s a n o the r cr im i na l . I n tha t
instance, the law enforcement agency has
an obligation to warn the intended victim,
offer protection, and continue to monitor
the situation through the interception ofcommunications and other investigativetechniques. Other times, the intended
victim may be a law enforcement officer
or an innocent bystander, and there may
or may not be prior notice of the crime.

535

RESOURCE MATERIAL SERIES No. 59
In one investigation of a group of drugtraffickers, the government learned thatthe subjects were planning the murder ofa law enforcement officer who had been
instrumental in the conviction of one
their co-conspirators. The government
w anted to continue to the electronic
surveillance investigation of the subjects’d r u g- tr a f f i ck i ng ac ti vi tie s w hi le it
attempted to thwart the threat against
the officer’s life. Through the use of aconfidential informant, the government
was able to fake the officer’s death to thes a t is f a c ti o n o f t he su b j e c t s, a n d it
co ntinue d its inve stigatio n into thesubjects’ drug activity until it
accumulated enough evidence to convict
every member of the conspiracy.
In a public corruption investigationthat was conducted several years ago, theFBI intercepted calls over a cellular
telephone used by a corrupt local police
off icer. During one call, the FB I
intercepted a conversation between thep o l ice o f f i c e r a n d a c o - co n s p i r a t o r ,w he r e in th e of f i ce r o r d e re d th e c o conspirator to kill a woman who had filed
a c o m p l a i nt a g a i ns t hi m . T h e c a l l,
however, did not reveal enough details
about the intended murder victim or
where the murder was to occur. The FBI
learned later that the co-conspirator
killed the woman shortly after the calle nd e d . T h e e le ct r o n i c su r v e il la n c e
i nv e s ti ga ti o n w a s t e r m in a te d s o o nthereafter, and the police officer and his
co-conspirators were arrested. At somepoint, the risk of further investigation
outweighs the benefit of accumulating
additional evidence against the subjects.
B. Legal Requirements And
Practical Considerations
Title III requires that an electronics ur v e ill an ce in v e sti ga tio n m u st b e
t er m in a te d w h e n th e g o ve r nm e nt ’s
defined investigative goals have been536

met, i.e., the identification of a drug
supplier, sufficient evidence of a fraud
co nsp ir a cy, or the in terc ep tion o f aparticular criminal event. 17 When thegovernment is ready to end the electronicsu rv e ill an ce in ve s tig at io n, it m us t
perform certain administrative tasks
required by Title III, and formulate apla n tha t w ill result in the grea test
num be r of ar re sts and se izure s o fevidence.
1. Administrative Tasks
At the end of every electronic
surveillance investigation, thegovernment must seal the recordings ofthe intercepted communications, andnotify the subjects that they were thetargets of the wiretap.
As to sealing the recordings, Title III
requires that the government seal theoriginal
record ings
ofthecommunications immediately upon thetermination of the electronic surveillance
investigation in order to protect theirauthenticity and integrity for use attrial.18 In order to seal the recordings, thegovernment makes the recording savailable to the judge for inspection.19 If
the judges waive inspection of the tapes,
or after he or she inspects them, the tapes
are placed in containers and sealed. Afterthe containers are sealed, the judge, theprosecutor, and the lead investigative
agent initial and date each container. The
judge then issues an order, directing thelaw enforcement agency to maintain thesealed tapes in a secure location. Sealingof the recordings can be a n arduous
undertaking if the electronic surveillance
investigation has involved numerous
17 18 U.S.C. §2518(5).
18 18 U.S.C. §2518(8)(a).
19 United States v. Abraham, 541 F.2d 624 (6th Cir.

1976); United States v. Kincaide, 145 F.3d 771(6th Cir. 1998).

119TH INTERNATIONAL TRAINING COURSE
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telephones and locations, and spanned
several months. If the government fails toseal the tapes or fails to seal them in at im e l y m a n ne r , a n d c a n n o t o f f e r asatisfactory explanation for the delay or
failure to seal, the court may find thateither the defendant was prejudiced by
the government’s actions or that the
tapes were tampered with, and exclude
the evidence from the trial.20
Wit h reg ard t o t he notification
requirement, Title III and related judicial
opinions mandate that the government
no tify the subje cts of the electronic
surveillance that they were either named
as subjects in the court order or that theircommunications were intercepted during
the electronic surveillance investigation.21
Specifically, the government informs the
subjects whether the court granted its
application to conduct the surveillance
and, if so, the date of the court order,when the interceptions occurred, andwhether their com munica tions wereintercepted. Occasionally, the government
may not be able to identify all of thepersons who were intercepted during thecourse of the electronic surveillance and,
therefore, cannot provide them w ith
notice. In the investigation outlined
above, “J-Boy” may never be identified byhis true name, and if he was intercepted
during the investigation, he may neverreceive notice of it. O f course, if thegovernment cannot identify him, he will
not be prosecuted for his role in theconspiracy.
20 United

States v. Gangi, 33 F. Supp.2d 303(S.D.N.Y. 1999) (two-day delay in sealing thetapes was legally acceptable); United States v.
Wilkinson, 53 F.3d 757 (6th Cir. 1995) (court
found no prejudice to the defendant, tamperingwith the recordings, or any effort to gain a tacticaladvantage by failure to seal the recordings in atimely manner).
21 18 U.S.C. §2518(8)(d).

2. How and When to Terminate theInvestigation
The type of criminal organization underinvestigation will dictate how and when
the sub jec ts a re a rre sted a nd w he nlocations are searched for contraband or
documentary evidence. In cases involving
drug organizations, gangs, and aliensmuggling, for example, it is imperative tocoordinate the arrests and the searches onth e s a m e d a y, e v e n if th e c r im in a lorganization is a nationwide one withpersons and locations in different parts ofthe country. Once the existence of theinvestigation has become known, subjects
a r e m or e lik e ly to f le e a n d d e str o yevidence. Therefore, the largest number ofarrests and seizures of evidence will occur
if they a re d one sim ulta neo usly. T ofacilitate the “takedown” of a case, it isoften helpful to continue the electronic
surveilla nce inve stiga tio n a fter theindividuals have been arrested. It is notuncommon to intercept communicationsa b ou t th e id en tities o f sub j ec ts n ot
previously known to law enforcement or
locations where contraband is being stored
during the period after the takedown.
Under American jurisprudence, continuing
to intercept the communications of those
persons who have been arrested does not
violate the individual’s constitutionalrights against self-incrimination or right tocounsel.22
VI. TRIAL PREPARATION
A. Evaluating The Evidence
O n c e t h e e le c t r o n i c s u r ve il l a n c einvestigation has been terminated, theprosecutor must evaluate the evidence
and review how the investigation was
conducted. The prosecutor must
22 United

States v. Poeta, 455 F.2d 117 (2d Cir.

1972); United States v. Wong, 40 F.3d 1347 (2dCir. 1994); Patterson v. Illinois, 487 U.S. 285(1988).

537

RESOURCE MATERIAL SERIES No. 59
de termine if all of the technicalrequirements of Title III were met and, if
not, whether the technical violations arefatal to the case. It is the general rulethat if the government acted in good faithand without a reckless disregard for the
statute, wiretap evidence w ill not be
suppressed as long as the defendant was
not prejudiced by the errors. 23 On rareoccasions, the courts have suppressed
evidence when the affidavit supporting
the government’s request for the wiretap
contained misleading statements, 24 orwhen law enforcement agents made a
conscious decision not to comply withcertain provisions of Title III.25
B. Discovery Obligations Under
Title III
Und er 18 U.S .C . §2 518 (9), thegovernment must provide the defendantwith a copy of the application and orderunder which the electronic surveillance
was approved ten days before the trial,
hearing, or proceeding, at which evidenceof the communications will be
introduced.26 The purpose of thisprovision is to give the defendant “anopportunity to make a pretrial motion to
suppress” the evidence.27 It is within the
court’s discretion to order the government
to provide any other documentation,
includ ing the recordings of theco m m unic a tio ns the m se lve s, to thedefendant at this time.28
While section 2518(9) provides thedefendant with a right to the application,order, and related documents, section
2 5 1 8 ( 8 ) ( b ) m a k e s it c le a r t h a t t h edefen da nt is entit led to on ly th atevidence which is relevant to his or her
defense and is not prot ected fromdisclosure by some other right or
privilege. In some instances, courts haveordered information redacted from thea p p li ca ti o n a n d o r d e r b e f o r e t ho se
docum ents were provided to thedefendant.29
With regard to the recordings of theco mmunications, general rules of
discovery require that the government
provide the defendant with copies of thoserecordings which are relevant to his or
her defense. Typically, the government
will provide copies of all of the recordings

23 United States v. Donovan, 429 U.S. 413 (1977);

United States v. Ozar, 50 F.3d 1440 (8th Cir.

26 In

re Grand Jury Proceedings, 841 F.2d 1048

1995) (inadvertent interception of attorney-client(11th Cir. 1988) (the terms “application” andcommunications); United States v. Estrada, 1995

“order” include other related documents, such as

WL 577757 (S.D.N.Y) (inaccurate summaries of
conversations was careless but there was nointentional disregard for the truth); United States
v. Velazquez, 1997 WL 564674 (N.D. Ill.) (mistake
in initial identification of a subject did no t
constitute a k now ing false stateme nt and a
reckless disregard for the truth).
24 United

States v. Aileman, 986 F. Supp. 1228

(N.D. Cal. 1997).
25 United

States v. Luong, No.CR-94-0094 MHP

the affidavit and progress reports).
27 United

States Senate Report No. 1097, 90th

Congress, 2d Session, 1968.
28 18 U.S.C. §2518(10)(a); United States v. Orena,

883 F. Supp. 849 (E.D.N.Y. 1995).
29 United States v. Yoshimura, 831 F. Supp. 799 (D.

Hawaii 1993) (when revelation of the informationi s n ot n eces sa ry to the de fe nse an d m ay
jeopardize the safety of confidential informants, itdoes not have to be revealed to the defendant);(N. D. Cal. 7/14/98) (un pu blish ed) (lawUnited States v. Brown, 539 F.2d 467 (5th Cir.

enforcement officer admitted that he did not1976) (privacy rights of third parties who may bepe rform the chec k fo r prior applications asaffected by the disclosure of the information must

required by 18 U.S.C. §2518(1)(e) because it

be considered); United States v. Buckley, 586 F.2d

would have taken too much time.).

498 (5th Cir. 1978) (same).

538

119TH INTERNATIONAL TRAINING COURSE
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to the defendant to forestall any latera rgum ent by the defenda nt that the
government withheld evidence that might
have been exculpatory or helpful to thedefendant’s case.
VII. CONCLUSIONAs demonstrated herein, electronic
surveillance is a valuable technique to
use to combat crime. Congress, whileallowing law enforcement to use this very
invasive technique, has proscribed themanner in which it can be used,attempting to design a legal regime that
protects the individual from unnecessary
invasions into privacy and according theindividual certain due process rights tochallenge the evidence against him or
her.

539

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ATTACHMENT A
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
IN THE MATTER OF AN
APPLICATION FOR AN ORDERAUTHORIZING THE INTERCEPTION
OF WIRE COMMUNICATIONSAPPLICATION FOR
INTERCEPTION OF WIRECOMMUNICATIONS
Lois Lane, an Assistant United States
Attorney, District of Columbia, being
duly sworn, states:
1. I am an investigative or law
enforcement officer of the UnitedStates within the meaning of Section
2510(7) of Title 18, United States
Code, that is, an attorney authorized
by law to prosecute or participate in
the p rosecution of offenses
enumerated in Section 2516 of Title
18, United States Code.
2. This application is for an orderpursuant to Section 2518 of Title 18,
United States Code, authorizing theinterception of wire communications
until the attainment of the authorized
objectives or, in any event, at the endof thirty (30) days from the earlier ofthe day on which the investigative orlaw enforcement officers first begin to
conduct an interception under the
Court’s order or ten (10) days after
the order is entered, of Gene Blum,
Robert Gerard, Katrina Karr, Nancy
P rim , “J -B oy, ” and o the rs a s yet
unknown to and from the telephone
bearing the number (202) 514-1234
and ESN 12CE568L, and subscribed
to by Julio Iglesias, 123 Main Street,

540

N.W., Washington, D.C., (hereinafter,
the “Target Telephone”) concerning
offenses enumerated in Section 2516
of Title 18, United States Code, thatis, offenses involving violations ofTitle 21, United States Code, Sections
841, 843, and 846, that are beingcommitted by Gene Blum, Rob ert
Gerard, Katrina Karr, Nancy Prim,“J- B oy” ( her einafte r the “Targe t
Subjects”), and others as yet
unknown.
3. Pursuant to Section 2516 of Title 18,
United States Code, the Attorney
General of the United States ha s
specially designated the AssistantAttorney General, any A cting
Assistant A tto rney Genera l, any
Deputy Assistant Attorney General or
any acting Deputy Assistant Attorney
General of the Criminal Division to
exercise the power conferred on the
Attorney General by Section 2516 of
Title 1 8 , U nite d S ta te s C o de , toauthorize this Application. Under the
power designated to him by special
designation of the Attorney Generalpursuant to Order Number 2 4072001, dated March 8, 2001, an
appropriate official of the Criminal
Division has authorized thisApplication.
4. I have discussed all of thecircumstances of the above offenses
with Special Agent Clark Kent of theFederal Bureau of Investigation, who
ha s d ire ct ed a nd co nd uc te d th isinvestigation and have examined theAffidavit of Special Agent Kent, which
is attached to this Application and isincorporated herein by reference.
B a se d u p o n tha t A f f id a vit , yo ur

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
applicant states upon information
and belief that:a. there is probable cause to believet ha t t he T a rg et S ub je ct s a n dothers as yet unknown havecommitted, are committing, andwill continue to commit violationsof Title 21, United States Code,
Sections 841, 843, and 846.
b. there is probable cause to believe
thatparticularwire
com munications of the Target
Subjects concerning the abovedescribed offenses will be obtained
through the interception of wirecommunications. In particular,
these wire communications willconcern the distribution of cocaine
and heroin, the identities of coconspirators, the sources of supply
for the drugs, and the methods bywhich the Target Subjects carryout their ille ga l activities. In
addition, the communications are
expected to constitute admissible
evidence of the commission of theabove-stated offenses;
c. normal investigative procedures
have been tried and failed,reasonably appear to be unlikely
to succe ed if tried , o r are to odangerous to em ploy, as is
described in further detail in theattached Affidavit;
d. there is probable cause to believethat the Target Telephone is being
used and will continue to be usedin connection with the commissionof the above-described offenses.
5. The applicant is aware of no previous
applications made to any judge forauthorization to intercept the oral,
wire or electronic communications
involving any of the same persons,facilities, or premises specified in thisapplication.

WHEREFORE, your applicant believes
that there is probable cause to believethat the Target Subjects and others as yet
unknown are engaged in the commissionof offenses involving Title 21, UnitedStates Code, Sections 841, 843, and 846,
and that the Target Subjects and others
yet unkno wn are using the T arge t
Teleph on e in con n ect ion w it h th e
co m m i ss io n o f t he a b o ve - d e sc r ib e doffenses; and that wire communicationsof the Target Subjects and others yet
unknown will be intercepted over theTarget Telephone.
Based on the allegations set forth in
this application and on the affidavit ofS p e c i a l A g e n t K e n t, a t t a c h e d , t h eapplicant requests this court to issue anorder pursuant to the power conferred
upo n i t b y S ecti on 25 1 8 o f T it l e 18 ,United States Code, authorizing agents of
the Federal Bureau of Investigation, ando f f ic e r s o f th e M e tr o p o l it a n P o l ic e
Department and the Prince George’s
County Police Department, and contract
personnel under the supervision of afederal agent, to intercep t wirecommunications to and from the Target
Telephone until such communications areintercepted that reveal the manner inwhich the Target Subjects and others
unknown participate in the specified
offenses and reveal the identities of theircoconspirators, places of operation, andnature of the conspiracy, or for a period of
30 days measured from the day on which
the investigative or law enforcement
officers firs t begin to conduct theinterception or ten days from the date ofthis order, whichever occurs first.
IT IS REQUESTED FURTHER thatthe authorization given be intended toapply not only to the target telephone
number listed above, but to any changed
telephone number subsequently assigned
to the instrum ent bea ring the sa me

541

RESOURCE MATERIAL SERIES No. 59
electronic serial number (ESN) as theTarget Telephone within the thirty (30)day period. It is also requested that theauthorization be intended to apply tobackground conversations intercepted in
the vicinity of the target telephone while
the telephone is off the hook or otherwise
in use.)IT I S REQUESTED FUR THE R,
pursuant to Title 18, United States Code,
Section 2518(3), that in the event that theTarget Telephone is transferred outside
the territorial jurisdiction of this Court,
interceptions may take place in any otherjurisdiction within the United States.
IT IS REQUESTED FURTHER that
this Court issue an order pursuant to
Section 2518(4) of Title 18, United States
Code, directing Killion Communications,an electronic communications service
provider as defined in Section 2510(15) ofTitle 18, United States Code, to furnish
a nd continue to furnish the Federal
Bureau of Investigation with all
informa tion, facilities and technicalassistance necessary to accomplish theinterceptions unobtrusively and with aminimum of inter ference with theservices that such provider is according
the persons whose communications are to
be intercepted, and to ensure an effective
a nd secure installation of electronicd evices capa ble of intercepting w ire
communications over the above-described
telephone. The service provider shall bec ompen sated b y the Appl ican t forreasonable expenses incurred inproviding such facilities or assistance.
IT IS REQ UESTED FURTHE R, toavoid prejudice to this criminal
investigation, that the Court order theprovider of electronic communication
service and its agents and employees not
to disclose or cause a disclosure of thisCourt’s Order or the request for

542

information, facilities, and assistance by
the Federal Bureau of Investigation or
the existence of the investigation to any
person other than those of their agentsand employees who require thisinformation to accomplish the services
requested. In particular, said provider
and its agents and employees should beordered not to make such disclosure to alessee, tele phone sub scriber, or a ny
participant in the interce pted
communications.
IT IS REQUESTED FURTHER thatt h i s C o u rt d ir e ct t h a t i t s O r d e r b e
executed as soon as practicable after it issigned and that all monitoring of wirecommunications shall be conducted insuch a way as to minimize theinterception and disclosure of thecommunications intercepted to thosecommunications relevant to the pending
investigation, in accordance with theminimization requirements of Chapter
119 of Title 18, United States Code. Theinterception of w ire communications
authorized by this Court’s Order mustterminate upon at tainment of theauthorized objectives or, in any event, atthe end of thirty (30) days measured fromthe day on which investigative or law
enforcement officers first begin to conduct
an interception or ten (10) days after theOrder is entered.
M onitoring of conversa tions must
immediately termi nate wh en it isdeterm ined that the conversa tio n isunrelated to communications subject tointerception under Chapter 119 of Title
18, United States Code. Interception
must be suspended immediately when itisdeterminedthroughvoice
identification, physical surveillance, oro t he rw i se , t h a t n o n e o f th e n a m e dsubjects or any of their confederates,when identified, are participants in theconversation unless it is determined

119TH INTERNATIONAL TRAINING COURSE
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during the portion of the conversation
already overheard that the conversationis criminal in nature.
IT IS REQUESTED FURTHER that
the Court order that either the applicant
or any other Assistant United States
Attorney familiar with the facts of thecase provide the Court with a report on or
about the tenth, twentieth, and thirtiethdays following the date of this Ordershowing what progress has been madetoward achievement of the authorized
objectives and the need for continued
interception. If any of the aforementioned
reports should become due on a weekend
or holiday, it is requested further thatsuch rep ort be come due on the next
business day thereafter.
IT IS REQUESTED FURTHER that
the C ourt ord er that its Orde r, thisa p p l ic a t i o n a n d t h e a c c o m p a n y i n gaffidavit and any other orders, and allinterim reports filed with the Court withregard to this matter be sealed until
further order of this Court, except that
copies of the Order(s), in full or redacted
f orm, ma y b e se rve d o n the F ede ral
Bureau of Investigation and the service
provider as necessary to effectuate the
Court’s Order as set forth in the proposedorder accompanying this application.
DATED this 13th day of August, 2001.
Lois Lane
Assistant United States Attorney
SUBSCRIBED and SWORN to before
me this13th day of August, 2001.
UNITED STATES DISTRICT COURTJUDGEDISTRICT OF COLUMBIA

543

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ATTACHMENT B
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
IN THE MATTER OF THE
APPLICATION OF THE UNITEDSTATES OF AMERICA FOR AN ORDERAUTHORIZING THE INTERCEPTION
OF WIRE COMMUNICATIONSAFFIDAVIT IN SUPPORT OF
APPLICATION
Introduction
Clark Kent, being duly sworn, deposesand states as follows:
1. I am a Special Agent with the Federal
B ure a u o f Inve s t i ga ti o n ( “ FB I ”) ,United States Department of Justice.
I have been so employed by the FBI
since August 1994. Since becoming aSpecial Agent, I have participated innumerous criminal investigations,
including investigations into
suspected narcotics trafficking. For
th e p a st f iv e ye a r s, I h a ve b e e n
assigned to the Washington, D.C.,
resident agency of the FBI, where I
am responsible for investigations
focusing on the distribution of
narcotics by violent drug trafficking
organizations. In that time, I havep a rti ci p a te d in the e x e cu tio n o f
numerou s search warrants andarrests, and have been the affiant on
three previous affidavits submitted ins u p p o r t o f t h e a u t h o r iz a ti o n t ointercept wire communications. As
such, I am familiar with the operationof illegal drug trafficking
organizations, and the methods used
to distribute narcotics.

544

2. I am an investigative or law
enforcement officer of the UnitedStates within the meaning of Section
2510(7) of Title 18, United States
Code, and am empowered by law to
conduct investigations and to makearrests for offenses enumerated in
S ec ti on 2 5 1 6 o f T it l e 1 8 , Un ite dStates Code.
3. This affidavit is submitted in supportof an application for an orderauthorizing the interception of wirecommunica tions occurring to a ndfrom a cellular telephone bearing thenumber (202) 514-1234, electronic
serial number (“ESN”) 12CE568L,
and subscribed to by Julio Iglesias,
123 Main Street, N.W., Washington,
D.C., 20005 (hereinafter referred to as“the target telephone”). As will be set
forth below, the investigation has
revealed that this phone is being usedby Gene Blum, aka “Little G.”
4. I
have
participatedintheinvestigation of the offenses set forth
below. As a result of my personalparticipation in this investigation,
through interviews with and analysisof reports submitted by other Special
Agents of the FBI, as well as others t a t e a nd l oc a l l a w en fo r ce m en t
personnel, I a m familiar with a ll
aspects of this investigation. On thebasis of this familiarity, and on thebasis of other information which I
have reviewed and determined to bereliable, I allege the facts to show
that:a. there is probable cause to believethat GENE BLUM, aka “Little G,”
ROBERT GERARD, KATRINA
KARR, aka “Kay Kay,” NANCY119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
PRIM, aka “Sweet Nancy,” First
Name Unknow n (FNU) Last
Name Unknown (LNU), aka “JBoy,” (hereinafter referred to as“the target subjects”) and others
as yet unknown have committed,
are committing, and will continue
to commit offenses involving the
distribution of, and possession
with intent to distribute narcotics,
including cocaine and heroin, theuse of communications facilities tofacilitate narcotics offenses, andconspiracy to commit the above
offenses, in violation of Title 21,
United States Code, Sections 841,
843(b), and 846.
b. there is probable cause to believe
thatparticularwire
communications of Gene Blum,
Rob ert G erard, K atrina K arr,
Nancy Prim, “J-Boy,” (hereinafterreferred to as the “interceptees”),
and others as yet unknown,concerning the above offenses will
be obtained through theinterceptionofsuchcommunications to and from thetarget telephone.
5. In particular, these communications
are expected to concern the specificsof the above offenses, including (i) thenature, extent and methods of thenarcotics distribution business of thetarget subjects and others; (ii) thenature, extent and method s ofop eratio n o f the drug tra fficking
business of the target subjects andothers; (iii) the identities and roles ofaccomplices, aiders and abettors, coconspirators and participants in theirillegal activities, including sources ofsupply fo r the narco tics; (iv) thed is tr ib u t i o n a nd t ra ns f er o f t h econtraband and money involved inthose activities; (v) the existence andlocation of records; (vi) the locationa n d s o u rc e o f r e so u r c e s us e d t ofinance their illegal activities; (vii) the
locat ion an d dis positi on of t heproceeds from those activities; and(viii) the locations and items used infurtherance of those activities. In
addition, these wire communications
are expected to constitute admissible
evidence of the commission of theabove-described offenses.
6. The statements contained in thisaffidavit are based in part onin fo rm atio n pr ov ide d by Sp ec ial
Agents of the FBI, on conversations
held with detectives and officers from
the Metropolitan Police Departmentof Washington, D.C., and the Prince
George’s County Police Department,
on information p rovided byconfidential sources and a named
source, and on my experience andbackground as a Special Agent of theFB I. S ince this affida vit is b eing
submitted for the limited purpose of
securing authorization for theinterception of wire communications,
I have not included each and every
fact know n to me concerning thisinvestigation. I have set forth only thefacts that I believe are necessary toestablish the necessary foundation for
an order authorizing the interceptionof wire communications.
PERSONS EXPECTED TO BE
INTERCEPTED
7. Gene Blum: As set forth in moredetail below, Blum, the user of thetarget telephone, has been identified
through source information as being a
me mb er of R ob ert G era rd’ s drug
distribution “cre w.” The FBI has
con ducted c ontr oll ed n ar cot ics
purchases with Blum.

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RESOURCE MATERIAL SERIES No. 59
8. Robert Gerard: Gerard has been
identified through source information,
set forth below, as the leader of a
Washington, D.C.-based narcotics
distribution network that sells multikilogram quantities of cocaine andheroin. Gerard resides in the Keeney
Heights area of Washington, D.C.,
and is believed to be responsible forthe murder of one of his narcotics
customers, who had failed to pay adrug deb t. A t this tim e, Gerard’s
narcotics suppliers are unknown.
9. Katrina Karr: In December 1994,
Karr was convicted of possession of
cocaine with intent to distribute in
Raljon, Maryland, and was sentenced
to two years incarceration and five
years probation. Karr is currently on
probation. Karr has been identified byconfidential sources as a member ofGerard’s narcotics distribution “crew.”
10. Nancy Prim: Prim has been identified
through source information, as set
forth below, as a member of Gerard’s“crew.” Prim has also been observed
accompanying Gerard and Blum to
the Starlight Motel, which Gerard
and Blum use as a location to conductnarcotics transactions.
11. FNU LNU, aka “J-Boy”: Several
confidential sources have stated that
J-Boy, who has not yet been
identified, is a narcotics distributor
for Gerard.
FACTS AND CIRCUMSTANCES
12. On February 22, 2001, your affiant
interviewed a confidential informant(“CI-1”). CI-1 has provided reliable
information in other investigations,and in those investigations, bought
drugs and introduced undercoveragents to the targets of those546

investigations. CI-1’s information has
been used previously in arrest andsearch warrants. The informationthat CI-1 has provided in this casehas been corroborated by physicalsurveillance of the subjects,
info rm a tio n f ro m o the r, re lia b leconfidentia l inf orma nts, and theanalysis of telephone records. CI-1
has a prior conviction for possessionof cocaine, and is cooperating with the
FBI in this investigation in hopes ofgaining leniency for a family member
who has pending drug charges.
13. During the interview on February 22,
20 01 , C I-1 told your af fia nt tha t
Robert Gerard and members of his
drug crew distrib ute cocaine andheroin in the Keeney Heights area of
Wa shington, D .C ., and tha t CI -1
bou ght cocaine from “J-Boy,” amember of Gerard’s crew, in
December 2000. CI-1 identified thefollowing other persons as members ofGerard’s crew: “Little G,” “Kay Kay,”and “S weet Na ncy.” Your af fia nt
showed CI-1 some driver’s licensep ho to g ra p h s a n d he w a s a b le toidentify Little G as Gene Blum, Kay
Kay as Katrina Karr, and Swee tNancy as Nancy Prim.
14. On March 30, 2001, your affiant
learned that Fred Hendricks w as
murdered that day in G erard’s
neighborhood in Keeney Heights.
Your affiant reviewed reports madeby the local police officers
investigating the murder. Based upon
those reports, your affiant learned
that Gene Blum, Bridget Lynn, andNatasha Spencer were present at thescene. The local police questioned
each individual about the murder,
and it was learned that Blum wasseen trying to leave the scene on a
motorcycle. Blum was detained and119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
he volunteered to answer somequestions. During the questioning,
Blum advised the police that there
was a quantity of cocaine inside alocked com partment in the
motorcycle. Blum gave the keys to thecompartment to the officer. Later thatday, the police obta ined a search
warrant for the motorcycle
co m par tm ent. T he ne xt da y, th e
search warrant was executed anda p p r o x i m a t e l y o n e q u a r te r o f akilogram of cocaine was found inside.
Blum was never charged with any
drug of fenses. S pencer a nd Lynn
claimed to know nothing about themurder.
15. On April 5, 2001, Gerard’s house wasburned to the ground. Your affiant
reviewed police reports of the incident
and learned that three unidentified
males entered the house carrying
gasoline, and set the house on fire.
Two persons, one of whom was an
infant male, were inside the housewhen the fire was set, and they diedas a result. Gerard was not at home at
the time of the fire.
16. On April 25, 2001, your affiant
interviewed Stephen Simon, who has
bee n indicted on charges of
distributing cocaine. Simon agreed toprovide the following information aspart of a plea bargain in his pendingcase. Simon told your affiant that he
was a member of a rival drug gang,
and he stated that he knows Gerard
and Blum. Simon stated that Gerard
had given Hendricks two kilograms of
cocaine on consignment, and whenHendricks failed to pay Gerard for thecocaine, Gerard had Hendricks killed.
Simon stated that he learned of thisinformation from Natasha Spencer,
his girlfriend, who was at the scene of
the murder. Simon stated further that

Gerard receives large shipments ofcocaine every few months, and that hesells cocaine for $17,500 per kilogram.
17. On May 5, 2001, the local police
interviewed an individual who was
willing to provide information about
Gerard’s drug trafficking activities.
Th is per son (“C I-2 ”) has neverprovided information to law
enforcement before and, therefore, his
reliability is unknown. CI-2 statedthat Gerard and Blum are heavily
involved in trafficking and are very
violent. On May 11, 2001, CI-2 told
th e loca l po lice that Ger ar d andmem bers of his crew w ere a t theStarlight Motel in Raljon, Maryland.
Based on this information, local police
officers established surveillance at
the motel. During the surveillance,
officers saw Ge rard, Blum, andseveral unidentified males come andgo from two motel rooms.
18. On May 20, 2001, CI-2 told the local
police that Gerard and Blum were at
the Starlight Motel, and that they
were selling drugs from a room there.
That day and the following day (May21, 2001) , surveillance agentsobserved Gerard and Blum coming inand out of room 1 23. In addition,
throughout the day, several
unidentified males were seen entering
room 123, staying a few minutes andthen leaving the room.
19. On May 25, 2001, CI-2 stated that
Blum had gone to the Starlight Motelagain to sell drugs. The local police
conducted surveillance of the motel
and saw Blum exit room 178. Blum
entered a Chevy Suburban truck thatwas being drive n by a fem ale.
Surveillance agents later identified
this fe ma le f rom pho to grap hs as
Nancy Prim. One hour later, agents

547

RESOURCE MATERIAL SERIES No. 59
saw the Chevy Suburban return tothe motel. Blum exited the car andentered room 178.
20. Shortly after May 5, 2001, an
undercover police officer (“UC”) was
sent to the Starlight Motel to seek
employment there as a maintenanceworker. On May 25, 2001, the UC wasworking at the motel, when someone
from room 178 called the front desk tocomplai n ab ou t a ma int ena nce
problem. The UC went to room 178 to
fix the problem and observed Blumand two unidentified males inside ther o o m . W h e n t h e U C a r r i ve d , h eoverheard Blum refer to one of themales as “J-Boy.” While in the room,
the UC used the telephone to make acall to another police officer. During
the call, the UC mentioned going to a
party and getting some cocaine totake to the party. Blum overheard theUC’s call and offered to sell the UCs o m e co c a in e . T h e U C , w h o w a s
wearing a recording device, recorded
his conversation with Blum. During
the conversation, Blum stated, “I can
get you all the coke you want. How
much do you want?” The UC statedthat he wanted an ounce. Blum told
the UC to call him later at the motel.
The UC then left the room.
21. That evening, the UC called thetelephone in room 178 and spoke to
B lum . The UC recorded his
conversation with Blum. The UC andBlum agreed to a purchase price of$1,100 for one ounce of cocaine. Blumgave the UC his pager number andto ld th e U C to p a g e h im at that
number when the UC was ready to
conduct the drug deal.
22. On May 26, 2001, at 9:15 a.m., the UC
paged Blum at the number he wasgiven, and input th e telephon e548

number of his cellular telephone. At
9:20 a.m., the UC received a call from
Blum. The caller identification device
on the UC’s cellular phone revealed
that Blum was calling from a cellular
telephone with the number (202) 5141234. During this conversation, theUC told Blum that he was ready to
buy some cocaine from Blum. Blum
instructed the UC to meet him atroom 178 at the Starlight Motel at
10:30 a.m. Blum then ended the call.
The FBI later obtained telephonerecords for Blum’s phone, (202) 5141234 (hereinafter, referred to as the“target phone”). Those records showthat immediately after Blum ended
the call with the UC, the target phone
was used to call a pager. The FBI
obtained records for the pager andlearned that it is subscribed to in thename of Dorothy Gerard, Gerard’s
mother. At 10:30 a.m., the UC arrived
at the motel and met Blum in room178. The UC bought one ounce of
cocaine from Blum in exchange for$1 ,1 0 0 . M e a nw hi le , s urve illa nce
agents were outside the motel. Afterthe transaction, the UC left the motel
room , followed by B lum. Blume nte r e d a w h ite F o r d N a vi ga t or
sports utility vehicle and drove awayfrom the motel. Surveillance agents
followed Blum as he drove away. The
agents followed Blum to Interstate
Highwa y 9 5 . A t on e po in t, B lum
slowed down and was driving alongside of the surveillance agents. Blum
waived to the agents and then sped
off. Realizing that they ha d b een
detected, the agents discontinued
surveillance of Blum.
23. On June 2, 2001, the UC attempted tocontact Blum at the pager number
Blum ha d given the UC. The U Cnever received a call back from Blum.

119TH INTERNATIONAL TRAINING COURSE
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24. On June 22, 2001, a local police officer
contacted your affiant and advisedthat she had been contacted by aconfidential informant (“CI-3”). The
police officer advised your affiant that
CI-3 was reliable, and that CI-3 hadprovided credible information to him
in the past. The police officer advisedthat CI-3, who is a ssociated w ith
ma ny gang m embers, know s that
Blum uses the target phone to
conduct his drug business.
25. On June 28, 2001, your affiantl e a r n e d o f a n o t he r c o n f id e n t i a linformant working for the local police(“CI-4 ”). CI -4 has never provided
information before, but knows Blumand has bought cocaine from Blum on
several occasions within the last six
months, most recently in the
beginning of June 2001. CI-4 statedthat he has never bought cocaine from
Gerard, but knows that Blum works
for Gerard as a drug distributor. CI-4
indicated that he would be willing tocontact Blum to buy cocaine, but that
he was not willing to record any of his
conversations with Blum.
26. On August 1, 2001, at 1:20 p.m., CI-4
paged Blum and input the telephone
number where CI-4 could be reached.
At 1:45 p.m., Blum called CI-4. Phone
records for the target phone show thatat approximately 1:45 p.m., the target
phone was used to call CI-4’s
telephone. According to CI-4, he told
Blum that he wanted to buy an ounceof cocaine. Blum told CI-4 to meet him
at a gas station in one hour. One hourlater, CI-4 went to the gas station.
Before CI-4 arrived at the gas station,
Agent Kent searched CI-4 forcontraband, with negative results,
and gave CI-4 $1,100 in pre-recorded
go v e rn m en t f un d s. S ur ve illa nc e
agents then observed CI-4 approach

the gas station. A short while later,
Blum arrived at the gas station in a
red Lexus vehicle. Blum got out of his
car and walked over to CI-4. Agents
saw CI-4 hand something to Blum.
Blum returned to his car, reachedinside, and returned to CI-4. Blumhanded an object to CI-4. CI-4 left thegas station and Blum drove off. CI-4
rendezvoused with Agent Kent andgave him one ounce of a substancetha t la ter tested positive for thepresence of cocaine.
ANALYSIS OF TELEPHONE
RECORDS
27. On August 5, 2001, your affiant
obtained telephone records for theta r g e t p ho n e . A r e v ie w o f t ho s erecords show that between July 2,
and August 2, 2001, the target phone
was used to make and receive a totalof 1,14 4 calls. Sp ecifically, thoserecords reflect the following pertinentcontacts:
a. 34 calls to Gerard’s pager, withthe most recent call on August 1.
b. 22 calls to and from a telephone
subscribed to by Dorothy Gerard
at a residence located a t 12 53
Corey Lane, N.W. The most recent
call to this telephone was on July
2 3 , 2 0 0 1 . A ge n ts c o n d u c t i ng
physical surveillance have seen
R o b e r t G e r a r d e n te r i n g t h i s
residence on several occasions
since the fire at his home. Youraffiant believes that Blum callst hi s te l e p h o ne to s p e a k w ith
Robert Gerard.
c. 19 calls to a phone located at theStarlight Motel, with the mostrecent call on July 28, 2001. Basedo n p hy si ca l su rv e ill a n ce a n dsource information, your affiant
believes that Gerard, J-Boy, Prim,

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RESOURCE MATERIAL SERIES No. 59
and Blum use that motel as alo c a tio n to c on d uc t na r c ot ics
transactions. Surveillance agents
saw J-Boy at the Starlight Motelon July 28, 2001.
NEED FOR INTERCEPTION
Based upon your affiant’s training andexperience, and based upon all of thefacts set forth herein, it is your affiant’s
be lie f that th e in te rc ep t ion o f wir ecommunications is the only available
technique that has a reasonableli ke lih o o d o f se c ur ing th e ev id e nc enecessary to prove beyond a reasonable
doubt that the target subjects and others
as yet unknown are engaged in the abovede scribed offenses. In addition,
information recently obtained from C1-2
indicates that Gerard is expecting toreceive a large shipment of heroin during
early September 2001. It is hoped thatthe interception of wire communications
over the target phone will help to reveal
further information about this shipment.
Your affiant states that the following
investigative proced ures, w hich a reusually employed in the investigation ofthis type of criminal case, have been triedand have failed, reasonably appear to beunlikely to succeed if they are tried, orare too dangerous to employ.
ALTERNATIVE INVESTIGATIVETECHNIQUES
Physical Surveillance
Physical surveillance has been
attempted on numerous occasions during
this investigation. Although it has provenvaluable in identifying some activities
and associates of the target subjects,
p hysical surveilla nce, if not use d inc o nj un ct io n wi th o th e r te c hn iq u e s,

550

including electronic surveillance, is oflimited value. Physical surveillance, evenif highly successful, has not succeeded ingathering sufficie nt evid ence of thecriminal activity under investigation.
Physica l surveilla nce of the alleged
co nspirators has not establishedco nclusively the elements of theviolations and has not and most likely
w il l n o t e s ta b l is h c o n c lu s iv e l y th e
identities of various conspirators. In
addition, continued surveillance is notexpected to enlarge upon information now
availab le; rather, such prolonged or
regular surveillance of the movements ofthe suspects would most likely be noticed,
causing them to become more cautious in
their illegal activities, to flee to avoid
further investigation and prosecution, tocause a real threat to the safety of theinformants, or to otherwise compromise
the investigation.
Physical surveillance is also unlikely toestablish conclusively the roles of thenamed conspirators, to identify additional
conspirators, or otherwise to provide
admissible evidence in regard to thisinvestigation because the subjects appear
to be extremely surveillance conscience.
For example, as set forth above, Blum
detected law enforcement surveillance on
May 26, 2001. While surveillance agents
have attem p ted to fo llow B lu m andGerard while they were driving, both
Blum and G era rd tend to drive very
erratically by slowing down or speeding
up with little warning, turning without
signaling, and stopping on the side of theroad unexpectedly to watch cars as they
go by. Such counter-surveillancetechniques have made it difficult, if not
impossible , to maintain effective
surveillance of Blum or Ge rard.
Furthermore, Blum lives on a cul-de-sac
in a v e r y c lo se - k n i t n e i g hb o r h o o d .
Neighbors are often on the porches, andappear to be watching the activity in the

119TH INTERNATIONAL TRAINING COURSE
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neighborhood. On February 10, 2001,
surveillance agents attempted to conduct
surveillance near Blum’s residence byparking just outside the entrance to the
cul-de-sac. However, agents observed ane ighb or a pp ea r to be watching thevehicle from her porch. The neighbor
eventually began walking towards thevehicle, as if to confront the agents. At
that time, the agents drove away.
In my opinion, further surveillance
would only serve to alert the suspects of
the law enforcement interest in theiractivities and comp rom ise theinvestigation.
Use of Grand Jury Subpoenas
Based upon your affiant’s experienceand conversations with Assistant United
S ta te s A ttorney Lois La ne, w ho has
experience prosecuting violations o fcriminal law, your affiant believes thats ub p oe na i ng p er sons b el i eve d t o b e
involved in this conspiracy and theirassociates before a Federal Grand Jurywould not be completely successful inachi ev ing t he stat ed g oa ls of t his
investigation. If any principals of thisconspiracy, their co-conspirators andother participants were called to testify
before the Grand Jury, they would most
likely be uncooperative and invoke their
Fifth Amendment privilege not to testify.
It would be unwise to seek any kind of
immunity for these persons, because thegranting of such immunity m ight
foreclose prosecution of the most culpable
members of this conspiracy and could notensure that such immunized witnesses
w o u l d p r o v id e t r u t h f u l t e s t i m o n y .
Additionally, the service of Grand Jury
subpoenas upon the principals of theconspiracy or their co-conspirators would
only (further) alert them to the existenceof this investigation, causing them tobecome more cautious in their activities,

to flee to avoid further investigation orprosecution, to threaten the lives of theinformants, or to otherwise compromise
the investigation.
Confidential Sources
Reliable confidential sources have beendeveloped and used, and will continue tobe developed and used, in regard to thisinvestigation. However, CI-1 is merely apurchaser of narcotics from J-Boy, andhas not had any direct contact with Blumor Gerard. Although CI-1 is aware that JBoy obtains narcotics from Gerard, J-Boy
has never mad e any attempts tointroduce CI-1 to Gerard, or to any otherpossible sources of supply. While CI-1 cancontinue to make controlled purchases ofnarcotics from J-Boy, it is not believedthat further purchases would help toreveal the identities of Gerard’s sources ofsupply, or help to reveal the full extent of
the organization’s narcotics trafficking
activities. Although CI-1 is willing totestify if necessary, CI-1 has expressed afear for his safety and for that of his
family should his cooperation with law
enforcement become known. CI-1 hasstated that he knows the organization to
be very violent, and that he has seen JBoy carrying a gun.
CI-2 has provided useful information
regarding Gerard’s and Blum’s narcotics
trafficking roles, and has also been able
to advise law enforcement of thea p p r o x im a te d a t e s w h e n n a r c o t i c stransactions have occurred. However, CI2 has not been able to provide any specificinformation about Gerard’s narcotics
suppliers or couriers. In addition, CI-2’s
reliability is unknown, because he has
never p rovid ed inform atio n to law
enforcement in the past.
CI-3, who has provided usefulbackground information about violent

551

RESOURCE MATERIAL SERIES No. 59
gangs in the Keeney Heights area of
Washington, D.C., and has confirmedthat Blum uses the target phone, has only
limited contact with Gerard. CI-3 hasseen Gerard with Blum, but CI-3 cannot
provide any direct information about
Gerard’s drug trafficking activities, anddoes not know who Blum’s or Gerard’s
narcotics suppliers are.
CI-4 has been used to make acontrolled purchase of narcotics from
Blum. CI-4 has also been able to provide
useful information about Blum’s role as
one of Gerard’s narcotics distributors.
While CI-4 can be used to makeadditional controlled narcotics purchasesfrom Blum, CI-4 is not in a position topurchase narcotics directly from Gerard.
In addition, it is unlikely that Blum or
G er a rd will intr od uc e C I - 4 to the ir
narcotics suppliers or to other narcotics
distributors of Gerard. Furthermore, CI-4
has refused to permit the FBI to record
any of his conversations with Blum andhas refused to testify against Blum forfear for his safety.
Undercover Agents
Undercover agents have been unable toinfiltrate the inner workings of thisconspiracy due to the close and secretive
nature of this organization. As detailed
above, during May 2001, an undercovera g e n t o b ta i ne d e m p l o y m e n t a t t h eStarlight Motel, and was able to conduct
a narcotics p urchase from B lum.
However, during that meeting, Blum said
that he rarely conducts transactions with“anyone new,” and that he agreed to meetwith the undercover agent because heknew him from the Starlight Motel. The
undercover agent was unable to obtain
any information about Blum’s narcotics
supplier. In addition, after Blumobserved surveillance agents after his
drug deal with the agent, he has not

552

returned any of the agent’s calls.
Accordingly, the FBI is unable to conduct
any additional narcotics transaction with
tha t undercover agent. Your a ffia nt
believes that there are no undercoveragents who can infiltrate the conspiracy
at a high enough level to identify all
members of the conspiracy or otherwise
satisfy all the goals of this investigation.
Furthermore, given the violent nature ofGerard’s organization, there are concerns
for the safety of any undercover agent
who participates in drug deals with theorganization.
Interviews of Subjects or Associates
Based upon your affiant’s experience, I
believe that interviews of the subjects ortheir known associates would produce
insufficient information as to theidentities of all of the persons involved in
the conspiracy, the source of the drugs,
the location of drugs, and other pertinent
information regarding the named crimes.
Y o ur a ff i a n t a l s o b e l i ev e s t ha t a n y
responses to the interviews would containa significant number of untruths,
diverting the investigation with false
le a d s o r o t h e r w is e f r u s t r a ti n g t h einvestigation. Additionally, suchinterviews would also have the effect ofalerting the members of the conspiracy,
thereby compromising the investigation
and resulting in the possible destruction
or concealment of documents and otherevidence, and the possibility of harm tocooperating sources whose identities may
become known or whose existence mayotherwise be compromised. When thepolice interviewed Natasha Spencer andasked her ab out the murder of Fred
Hendricks, she denied knowing anything
about it. However, her boyfriend, Stephen
Simon indicated to your a ffia nt thatS p e n c e r k n e w th a t G e r a r d o rd e r e dHendricks’ m urd er. A s to S im on, he
knows of Gerard’s and Blum’s activities

119TH INTERNATIONAL TRAINING COURSE
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only through his own past drug dealingsin the same neighborhood where Gerard
and Blum operate. Given that Simon iscurrently incarcerated, he can provide nof urth er inf or ma tio n a b o ut the d rug
activities of Blum and Gerard.
Search Warrants
The execution of search warrants inthis matter has be en considered.
However, use of such warrants would, in
all likelihood, not yield a considerable
quantity of narcotics or relevant
documents, nor would the searches belikely to reveal the total scope of theillegal operation and the identities of theco-conspirators. While some members ofGerard’s crew use the Starlight Motel asa loca tion to sell narco tics, it is notbelieved that members of that crew usethat location to store a large portion of
their na rcotics. The sea rch wa rrant
executed on the motorcycle driven byBlum yielded a quantity of cocaine, butthat evid ence in and of itself is not
sufficient to prosecute and convict all of
the members of this conspiracy. At thistim e , it is u nkn ow n w he re Blu m o r
Gerard store their narcotics. Further, it isunlikely that all, or even many, of theprincipals of this organization would bea t a n y o n e lo c a ti o n w h e n a s e a r c h
w a r r a n t w a s e x e c ut e d . T h e a f f ia n t
believes that search warrants executed at
this time would be more likely tocompromise the investigation by alerting
the principals to the investigation andallowing other unidentified members of
the conspiracy to insulate themselves
further from successful detection.
Phone Records
Pen register an d trap an d trace
i n f o r m a t i o n h a s b e e n u s e d in t h i sinvestigation, including a pen registerand trap and trace on the target

telephone, as described above. The penregister and trap and trace information
has verified freque nt telephone
co m m u ni ca tio n b e tw e e n t he t a r g e t
telephone and telephones suspected ofb e in g u se d b y c o - c o ns p ira to r s. Pe nregisters and traps and traces, however,
do not record the identity of the parties tothe conversation, cannot identify thenature or substance of the conversation,or differentiate between legitimate calls
and calls for criminal purposes. A pen
re g is t e r a n d t r a p a n d t r a c e ca nn o tidentify the source or sources of thecontrolled substances, nor can it, in itself,
esta blis h proof of th e con spiracy.
T e le p h o n e t o l l i n f o r m a ti o n , w h i c hidentifies the existence and length of
telephone calls placed from the target
telephone to telephones located outside ofthe local service z one, has the sa me
limitations as pen registers and traps andtraces, does not show local calls, and isgenerally available only on a monthly
basis.
PRIOR APPLICATIONS
Based upon a check of the records ofthe Federal Bureau of Investigation andthe Drug Enforcement Administration
conducted on or about August 1, 2001, noprior federal applications for an orderauthorizing or approving the interception
of
wire,
oral,
or
ele ctronic
com munications have been m ade
involving the same persons, premises or
facilities named herein.
MINIMIZATION
All interceptions will be minimized ina c c o r d a n c e w i t h t h e m i n i m iz a t i o nrequirements of Chapter 119 of Title 18,
United States Code, and all interceptions
conducted pursuant to this Court’s Orderwill terminate upon attainment of theauthorized objectives or, in any event, at

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RESOURCE MATERIAL SERIES No. 59
the end of thirty (30) days measured fromthe earlier of the day on whichinvestigative or law enforcement officers
first begin to conduct an interception
under the Court’s Order or ten (10) days
after the Order is entered. Monitoring of
conversations will terminate immediately
when it is determined that theconversationisunrelatedtocommunications subject to interception
under Chapter 119 of Title 18, UnitedStates C ode. Interception will bes u s p e n d e d i m m e d i a t e ly w h e n it isdetermined through voice identification,
physical surveillance, or otherwise, thatnone of the named interceptees or any of
their confederates, when identified, areparticipants in the conversation, unless it
is determined during the portion of theconversation already overheard that theconversation is criminal in nature. If aconversation is minimized, monitoring
agents will periodically spot check theconversation to insure that theconversation has not turned to criminal
matters.
Clark Kent
Special Agent, Federal Bureau of
Investigation
Sworn to bef ore me this 13th da y ofAugust, 2001.
UNITED STATES DISTRICT COURTJUDGEDISTRICT OF COLUMBIA

554

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSATTACHMENT C
U.S. Department of JusticeCriminal Division
Washington, D.C. 20530
MEMORANDUMTO:
Jimmy Olson, Director
Office of Enforcement
Operations
Criminal Division
FROM:

Perry White
Assistant Attorney General
Criminal Division

SUBJECT: Authorization forInterception OrderApplication
This is with regard to yourrecommendation that I, an appropriatelyd e s ig na te d o f f i ci a l o f t he C ri m in a l
Division, authorize an application to afederal judge of competent jurisdiction for
an order under Title 18, United States
Code, Section 2518, authorizing for ath irt y ( 3 0 ) d a y p e r io d, the o rig ina linterception of wire communicationso c c u r r in g to a n d f r o m t h e c e l l u la r
telephone bearing the number (202) 5141234, subscribed to by Julio Iglesias, 123
Main Street, N.W., Washington, D.C., inconnection with an investigation into
possible violations of Title 21, UnitedStates Code, Sections 841, 843, and 846,
by Gene Blum, Robert Gerard, Katrina
Karr, Nancy Prim, “J-Boy,” and others as
yet unknown.

applications for court orders authorizing
the interception of wire or oral
communications. As a duly designatedofficial in the Criminal Division, thispower is exercisable by me.
W H E R E F O R E , a ct in g u nd e r t hi sdelegated power, I hereby authorize theabove-described application to be madeby any investigative or law enforcement
officer of the United States as defined in
Section 2510(7) of Title 18, United States
Code.
The authorization given is intended toapply not only to the target telephone
number listed above, but also to any othertelep hone numbers subsequently
assigned to the instrument bearing thesame electronic serial number used by
the target telephone within the thirty(30) day period. The authorization is also
intended to apply to backgroundconversations intercepted in the vicinityof the target telephone while thetelephone is off the hook or otherwise inuse.
Perry White
Assistant Attorney General
Criminal DivisionDate

By virtue of the authority vested in the
Attorney General by Section 2516 of Title
18, United States Code, the Attorney
G eneral of the United States has by
Order Number 2407-2001, dated March
8, 2001, designated specific officials in the
C riminal Division to authoriz e

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RESOURCE MATERIAL SERIES No. 59

ATTACHMENT D
a p p l ie d . I n p a r t i c u l a r , t h e r e i sprobable cause to believe that theinterception of wire communications
to and from the telephone bearing thenumber (202) 514-1234, and ESN
12CE568L, and subscribed to by Julio
Igl es i a s, 1 23 Ma i n S t ree t, N .W.,
Washington, D.C. (hereinafter, the“Target Telephone”) will concern thespecifics of the above offen ses,
including the manner and means of
the commission of the offenses;

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
IN THE MATTER OF THE
APPLICATION OF THE UNITEDSTATES OF AMERICA FOR AN ORDERAUTHORIZING THE INTERCEPTION
OF WIRE COMMUNICATIONSORDER AUTHORIZING THE
INTERCEPTION OF WIRECOMMUNICATIONSApplication under oath having been
made before me by Lois Lane, AssistantU n ited S ta te s A tto rn ey , D istr ict o f
C o lu m b i a , a n i n v e s t i g a t iv e o r la w
enforcement officer of the United States
within the meaning of Section 2510(7) ofTitle 18, United States Code, for an Ordera uthorizing the inte rception of w ire
communications pursua nt to Section
2518 of Title 18, United States Code, andfull consideration having been given to
the matter set forth therein, the Court
finds:
a. there is probable cause to believe that
Gene Blum, Robert Gerard, Katrina
K arr, Na ncy Prim, “J -Boy,”(hereinafter, the “Target Subjects”)
a nd othe rs a s ye t unknown ha ve
committed, are committing, and willcontinue to commit violations of Title
21, United States Code, Sections 841,
843, and 846.
b. there is probable cause to believe thatparticular wire communications of theTarget Subjects and others as yet
u n k no w n co n c e r ni ng th e a b o v e described offenses will be obtained
through the interception for whicha uthoriza tion has herewith b een

556

c.

it has been established that normal
investigative procedures have been
tried and have failed, reasonab ly
appear to be unlikely to succeed if
tried, or are too dangerous to employ;andd. there is probable cause to believe that
the Target Telephone has been andwill continue to be used in connection
with commission of the abovedescribed offenses.
WHEREFORE, IT IS HEREBYORDERED that Special Agents of theFederal Bureau of Investigation (“FBI”),
o f f ic e r s o f t he M e tr o p o l it a n P o l ic e
Department and the Prince G eorge’s
County Police Department, and contract
personnel who are under the supervisionof the FBI, are authorized, pursuant to an
application authorized by a dulyd e si gn a t e d o f f ic ia l o f th e C r im ina lDivision, United States Department ofJustice, pursuant to the power delegatedto that official by special designation of
the Attorney General and vested in the
Attorney General by Section 2516 of Title
18, United States Code, to intercept wirecommunications to and from the Target
Telephone.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSPROVIDED that such interception(s)shall not terminate automatically after
the first interception that reveals themanner in which the alleged coconspirators and others as yet unknown
conduct their illegal activities, but may
continue until all communications are
i n t e r c e p t e d w h ic h r e v e a l f u l l y t h e
m a n n e r in w h i ch t h e a b o v e - na m e dpersons and others as yet unknown arecommitting the offenses described herein,
and which reveal fully the identities oft h e ir c o n f e d e r a t e s , t h e i r p l a c e s o foperation, and the nature of theconspira cy involved therein, or for aperiod of thirty (30) days measured fromthe day on which investigative or law
enforcement officers first begin to conduct
an interception under this order or ten(10) days after this order is entered,
whichever is earlier.
IT IS ORDERED FURTHER, pursuant
to Title 18, United States Code, Section
2518(3), that in the event that the Target
Telephone is transferred outside theterritorial jurisdiction of this court,
interceptions may take place in any otherjurisdiction within the United States.
IT IS ORDERED FURTHER that theauthorization apply not only to the target
telephone number listed above, but to any
changed telephone number subsequently
assigned to the instrument bearing thesame electronic serial number as theTarget Telephone within the thirty (30)day period. It is also ordered that thea ut ho r i z a ti o n a p p ly t o b a c k g ro u n dconversations intercepted in the vicinityo f t h e T a r g e t T e le p h o n e w h il e t h etelephone is off the hook or otherwise inuse.
I T IS O R D ER E D FU RT HE R tha t ,based upon the request of the Applicant
pursuant to Section 2518(4) of Title 18,
UnitedStates
Code,
KillionCommunications, an ele ctronic
co m m un ic a ti o n se r v ice p r o vi d e r a s
defined in Section 2510(15) of Title 18,
United States Code, shall furnish the FBI
with all inf o rm a tio n, f a c iliti es an dtechnical assistance necessary toaccom plishtheinterceptions
unobtrusively and with a minimum ofinterference with the services that suchprovider is according the persons whose
communications are to be intercepted,
with the service provider to becompensated by the Applican t forreasonable expenses incurred inproviding such facilities or assistance.
IT IS ORDERED FURTHER that, toavoid prejudice to the government’s
criminal investigation, the provider of theelectronic communications service and its
agents and employees are ordered not todisclose or cause a disclosure of the Orderor the request for information, facilities
and assistance by the FBI, or the
existence of the investigation to any
person other than those of its agents andemployees who require this informationto accomplish th e services h ereby
ordered. In particular, said provider andits agents and employees shall not makesuch disclosure to a lessee, telephone
sub s crib er or a ny Ta rge t Sub ject orparticipant in the intercepted
communications.
IT IS ORDERED FURTHER that thiso r d e r s h a ll b e e x e c u t e d a s so o n a spracticable and that all monitoring ofwire communications shall be conductedin such a way as to minimize theinterception and disclosure of thecommunications intercepted to thosecommunications relevant to the pending
investigation. The interception of wirecommunications must terminate upon theattainment of the authorized objectives,
not to exceed thirty (30) days measured
from the earlier of the day on which

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RESOURCE MATERIAL SERIES No. 59
investigative or law enforcement officers
first begin to conduct an interception ofthis order or ten (10) days after the orderis entered.
Mo nitoring of conversatio ns m ust
t erminat e immediately w hen it isd etermined that the conversation isunrelated to communications subject tointerception under Chapter 119, Title 18,
United States Code. Interception must bes u s p e n d e d i m m e d i a t e ly w h e n it isdetermined through voice identification,
physical surveillance, or otherwise, thatnone of the Target Subjects or any of theirc o n f e d e r a te s , w h e n i d e n ti f i e d , a r eparticipants in the conversation unless it
is determined during the portion of theconversation already overheard that theconversation is criminal in nature. If theconversation is minimized, themonitoring agent shall spot check toinsure that the conversation has notturned to criminal matters.
I T I S O R D E R E D F U R T H E R th a t
Assistant United States Attorney Lois
L ane or a ny other A ssista nt Unite dStates Attorney familiar with the facts ofthis case shall provide this Court with areport on or about the tenth, twentieth,
and thirtieth days following the date ofthis Order showing what progress has
been made toward achievement of theauthorized objectives and the need forcontinued interception. If any of theabove-ordered reports should become dueon a weekend or holid ay, IT IS
ORDERED FURTHER that such reportshall become due on the next business
day thereafter.
IT IS ORDERED FURTHER that thisOrder, the application, affidavit and any
related orders, and all interim reports
filed with this Court with regard to thismatter, shall be sealed until further orderof this Court, except that copies of the558orders, in full or redacted form, may beserved on the FBI and the service
providers as necessary to effectuate thisorder.
UNITED STATES DISTRICT COURTJUDGEDISTRICT OF COLUMBIA
Dated this13th day of August, 2001.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSATTACHMENT E
MINIMIZATION INSTRUCTIONS FORWIRE COMMUNICATIONSMEMORANDUM
TO:

Monitoring Personnel

FROM: AUSA Lois LaneRE:

Minimization Instructions

DATE:

August 14, 2001

1. All agents and monitoring personnel
must read the affidavit, application,order and these instructions and signthese instructions before monitoring.
2. The Order of August 13, 2001, only
authorize s the interceptio n ofconversations between the Target
Subjects and others occurring to andfrom the telephone number (202) 5141234, subscribed to by Julio Iglesias,
123 Main Street, N.W., Washington,
D.C., regarding offenses involving
Title 21, United States Code, Section
841, 843, and 846.
3. Personnel may monitor for areasonable period not to exceed two
m inutes to de ter mine whe the r a
subject is p articip ating in aconversation.
4. If, during this monitoring, it isdeterm inedthat
additional
individuals are engaged in a criminal
conversation, intercepts may continue
despite the fact that a named subject
is not engaged in the conversation,
until the conversation ends or
becomes non-pertinent. If individuals
other than a subject are participatingin the criminal conversation, continue

to monitor and advise the case agent
or supervisor immediately. If these
individuals can be identified, provide
this information also.
5. Ifasubject
is
engagedinc o n v e r s a t io n , in te r c e p t i o n m a y
co n ti nu e f o r a r e a so na b le t i m e ,usually not in excess of two minutes,
todeterminewhetherthec o n v e r sa t i o n c o n c e r n s c r i m i n a lactivities.
a. If such a conversation is unclear
but may be related to the drugtrafficking offenses, interception
may continue until such time as itisdeterminedthattheconversation clearly no longer
relates to that topic.
b. If such a conversation is unclear
but may relate to other criminal
activities, interception shouldcease after about two minutes
u nless it can be determinedwithin that time that theconversation does in fact relate toother criminal activities, in whichcase interception may continue.
6. The above instructions regarding thenumber of minutes of permissible
interception will vary once experiencehas been gained. If experience showsthat conversations between certainp e o p l e a r e i n v a r ia b l y i n n o ce n t,interception of such conversations
should be ended sooner. If experience
shows that other individuals always
discuss criminal activities, a longer
interception may be justified. This isespecially true for individuals who
can be identified as participants withthe subjects in possessing anddistributing controlled substances.

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RESOURCE MATERIAL SERIES No. 59
Read all of the logs of theinterceptions on a continuing basis
and notify the case agent if patterns
develop.
7. No conversation may be interceptedt h a t w o u ld f a l l u n d e r a n y l e g a lp rivile ge. T he f our c ate go rie s o fprivileged communications aredescribed below:
a. Attorney-Client Privilege: Neverknowingly listen to or record aconversation between a subject
a nd his o r her attorne y whenother persons are not present or
are n ot participati ng in th e
conversation. Any time that an
attorney is a party to ac on ve rs a tio n, n o tif y the ca s e
agent immediately. If it isdetermined that a conversation
involving an attorney constitutes
legal consultation of any kind,
notify the case agent, shut off themonitor and stop recording,unless you are able to determinef r o m t h e i nt e r c e p ti o n o f a n yconversation involving an
attorney that third parties who
a r e n o t in vo lve d i n t he l e ga l
m a tt e r s b e in g d i s c u s s e d a r e
present. If such third parties are
p r es e nt, a nd o nly if t he y a r e
present, may you intercept such
conversations following the abovedescribed rules of minimization.
In any event, notify the case agent
immediately.
b. Parishioner-Clergyman Privilege:
All conversations and conduct
between a parishioner and his or
her clergyman are to beconsidered privileged. Anelectronic surveillance order could
no t be ob tained to listen to a
subject confess his or her sins to apriest in a confessional booth;

560

similarly, a subject discussing his
or her personal, financial or legal
problems with his or her priest,
minister, rabbi, etc. may likewise
not be intercepted. Thus, if it isdetermined that a clergyman is aparty to a communication being
intercepted and that thecommunication is penitential innature, turn off the monitor, stop
recording, a nd notify the caseagent.
c. Doctor-Patient Privilege: Anyconversation a patient has with ad o c to r r e la ti n g to d ia g no si s,
sym pto m s, tre a tm e nt, or an yother aspects of physical, mental
or emotional health, is privileged.
If it is determined that a person istalking to his or her doctor andthat the conversation concerns the
person’s health (or someone else’s
health), turn off the machine andnotify the case agent.
d. Husband-Wife Privilege: As agene ral rule, ther e is also aprivilege covering communications
between lawfully married spouses.
Monitoring should be discontinued
and the case agent notified if it isdetermined that a conversation
solely between a husband and wife
is being intercepted. If a third
person is present, however, thecommunication is not privileged
and that conversa tion ma y bemonitored in accordance with thepr e vio usly d e scr ibe d r ule s ofminimization. If the conversation
is between the named subjects andthe ir r e sp e cti ve s p o use s, theconversation may be monitored inaccordance with the previously
described rules of minimization
regarding monitoring theseind ivid u a ls’ c on ve rs a tio ns tod e t e r m in e w h e t h e r t h e y a r e
discussing crimes. If the nature of

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
th e co n ve rsa t ion i s c rim in a l,monit oring may contin ue;
otherwis e, it may not bemonitored.
8. Abstracts or summaries of eachconversation are to be made at thetime of interception and are to be
included in the logs and the statisticalanalysis sheet. If the conversation is
not recorded entirely, an appropriate
notation should be made indicating
the incom plete nature of theconversation
and
why
the
conversation was not recorde dcompletely (e.g., “non-pertinent” or“privileged”).
9. The logs should reflect all activity
occurring at the monitoring station
c on ce rn ing bo th the inte rc e p te dconversations as well as theequipment itself (e.g., “replaced tape,”“malfunction of tape recorder,” “noconversation overheard”). These logs
will be used ultimately to explain them onitoring agent’s actions whenintercepting communications. It is
important to describe the parties toeach conversation, the nature of eachconversation, and the action taken.
All monitoring agents will record thetimes their equipment is turned on
and off.
10. All conversations that are monitored
must be recorded.
11. The Log
The m onitoring agents sho uld
maintain a contemporaneous log, by
shifts, of all communications
intercepted, indicating location ofeach communication on the cassettetape or computer disc; the time andduration of the interception; whether
the telephone call was outgoing or
inco ming; the telep ho ne num be r

called if the call was outgoing; theparticip ants, if known; and asummary of the content of thepertinent conversations. Any
peculiarities, such as codes, foreign
language used, or background sounds,
sh o u ld al so be no t e d . W h e n th einterception of a communication is
terminated for purposes ofminimization, that fact should be
noted. This log should record thenames of the personnel in each shift
and the function performed by each,
malfunctions of the equipment orinterruptions in the surveillance forany other reason and the time spans
thereof, and interceptions of possibly
privilege d conversations orconversations relating to crimes not
specified in the original interception
order. Each entry in the log should beinitialed by the person making it.
12. Protection of the Recording
The following procedure should be
followed d uring the period of
authorized interceptions:a. Either during or at the end of eachrecording period, copies of therecorded conversations should bem ade for the use of thei n ve s t i ga t i v e a g en cy a n d t hesupervising attorney;b. The original recording should bep laced in a sealed evidence
envelope and kept in the custodyof the investigative agency until it
is made available to the court at
the expiration of the period of theorder; andc. A chain of custody form should
accompany the original recording.
On this form should be a brief
statement, signed by the agent
su pe rvising the inte rce p tio n,
which identifies:

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RESOURCE MATERIAL SERIES No. 59(i) the order that authorized thereco rded inte rceptions ( bynumber if possible);(i) the date and time period of therecorded conversations; and(i) the identity (when possible) of
the individuals whose
conversations were recorded.
d. The form should indicate to whom
the custody of the originalrecording was transferred and thedate and time that this occurred.
Each subsequent transfer,including that to the court, should
be noted on the form.
e. The case agent should mark alabel attached to the original tapereel/cassette/computer disc inorder to identify it ascorresponding with accompanying
chain of custody forms. The dateof the recording should also be
m a rke d o n the la b e l a nd thisshould be initialed by the agent.
f. Each agent or other person
signing the chain of custody formshould be prepared to testify incourt that the original tape, whilein his or her custody, was kept
secure from the access of third
parties (unless noted to thecontrary on the form) and was notaltered or edited in any manner.
I t is the re spo nsib ility o f theinvestigative agencies to ensurethat original recordings in theircustody will be maintained insuch a w ay as to e nsure theiradmissibility in evidence at trial
over objections to the integrity of
the recording.
13. Procedure When No Recording Can beMade
In those unusual instances when norecording of the intercepted562

c o n ve rs a ti o n s c a n b e m a d e , th efollowing procedure should be used:a. The monitoring agent shouldmake a contemporaneous log or
memorandum that is as near to averbatim transcript as is possible;
b. The log or memorandum shouldc lo se w i t h a b r ie f s t a te m e n tsigned by the agent indicating theda te, time, an d plac e of theintercepted conversation. The
order authorizing the interception
should be identified. The agent
should indicate that the log or
memorandum contains thecontents of the interce pted
communication which he or she
overheard. This should be
followed by the agent’s signature;andc. This log should be treated by theinvestigative agency as if it werean origin al recording of theintercepted communication.
14. If the conversation occurs in alanguage other than English that noone at the monitoring post
understands, the entire conversation
should be monitored and recorded andthen minimized by a person familiar
with the investigation, but who is not
actively involved in it, in accordancewith the minimization rules set forth
above.
15. If any problems arise, please call the
ca se agent or the A US A. Se ve ra l
telephone numbers will be posted at
the monitoring post.
Assistant United States Attorney
Lois Lane