fbi undercover operations part01

8/6/2019 FBI Undercover Operations Part01

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FEDERAL BUREAUOF INVESTIGATION

FREEDOM OF INFORMATION/PRIVACY ACTSSECTION

COVER SHEET

SUBJECT: UNDERCOVER OPERATIONS &

GUIDELINES



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Manual of Investigative Operations and GuidelinesPart II PAGE 10

or law enforceaent officer of a pen register ortrap and tracedevioipursuant to ! above without application for the authorizing orderwithin 48 hours of the installation shall constitute a violation ofthis chapter. '

In essence,the "emergency"trap and trace provision mirrors the"eaergency TitleIII" provision found in Title 18, USC, Section2518!. However,there are several differences. First, the nuber ofstatutorily designated DOJ officials who layapprove emergencyuse oftrap and trace devices in Federal investigations is broadened toinclude "anyAssistant AttorneyGeneral, anyacting AssistantAttorney

General, orany DeputyAssistantAttorney General." Second,unlikeSection 2518!, the emergencytrap and tracestatute does not includeemergency situationsinvolving "conspiratorial activities threateningthe national security interest." In thoserare situations where an"eaergency" trapand trace would berequired for use in situationsthreatening thenational security, consideration shouldbe given: a!to utilizing the emergencyprovisions of the Foreign IntelligenceSurveillance Actof 1978 FISA!,whichregulates pen register/trapandtrace devicesaswell as electronic surveillance interceptions innational securityinvestigations, whichinclude criminalespionagecases; or b! to emphasizing thatthe situation, although threateningthe national security, either involves an iluediate danger of death orserious physical injury to any personor thatthe situation concernsconspiratorial activities characteristic of organized crime- e.g.,a terrorist group'splan to boaba building!. Of course, ifinvestigative orlaw enforcementofficers are dealing withthetelephone subscriberor customer user!, the customer's consent,as isindicated in Section 3l21 b!!, is sufficient, anda court orderneednot be obtained. Use Fora FD472to docuaent consent.

EFFECTIVE: O3/23/92

10-11FBI unnzacovsa ACTIVITIES-CRIMINALMATTERS [ $25nxoc,mar 11, 10-14.1.5.1]

NOTE: FBIUNDERCOVER ACTIVITIESFCI MATTERS, SEEFC1HANUAL.!

The undercovertechnique is one of themosteffective andsuccessful investigative tools the Federal Bureauof Investigation hasto investigate crime. As such,it should be protected and used

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Hanualof Investigative Operationsand GuidelinesPart II ~PAGE 10

wisely. Theconduct ofundercover operationsUCOs! isgoverned bytheAttorney Genera1's GuidelinesAG6!on FBI UndercoverOperationswhichwere initially approvedin 1980and revisedll/13/92. TheFIELDGUIDE FORUNDERCOVER ANDSENSITIVE OPERATIONSwhichsets forthFBIpolicies andprocedures concerningthe conductof UCOshasbeendisseminatedtothe field. The field officeundercover coordinatorUCC! andtheUndercoverand SensitiveOperationsUnitUSOU!,

Criminal InvestigativeDivision, FBIHeadquarters,shouldbe consultedregarding specific questions relating to UCOs.

EFFECTIVE: 12/O7/93

10:11.1 |DeletedI

EFFECTIVE: 10/18/93

10-11.2 |n¢1=z¢a|

EFFECTIVE: 10/18/93

10-11.3 [Deleted]

EFFECTIVE: 10/18/93

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Manualof Investigative Operations andGuidelines

Part II PAGE10l0-14.1.5 UndercoverFunding Authority

Request foradvance fundingfor FCI,GroupIand GroupIIUndercover Operationsshould bemade tothe substantivedesk atFBIHQ.Short-tern FCIand GroupII UndercoverOperations laybe fundedfromthe|draft system.|Larger FCIand GroupII cases nay useadvancedfundsif theldraft syatealisinsufficientto fund theoperation. AllGroupI UndercoverOperations arefunded fromFIIHQ advances.Authority to conduct undercoveroperations isdiscussed inPart II,l0-ll, of this manual, "FBIUNDERCOVER ACTIVITIES-CRIMINALMATTERS."Authority to conduct undercoveroperations inPCI nattersis discussed

in Part I, Section 0-6 of the ForeignCounterintelligence Manual.~~

EFFECTIVE: 12/07/93

10'l4.l.6 Showand BuyrbustHoney FundingAuthority

! Show and Buyrbustnoney isavailable ona case-by-case basisto providefinancial credibility for an asset/informant,cooperating witnessor UndercoverAgent orto consummatea proposed

illegal transaction in supportof a specific investigativecase. Use-of thesefunds does NOTconstitute anEXPENDITURE ofappropriatedfunds. Such funds are NEVERto be allowed to becoae evidenceor toleave thecare, custodyor controlof the FBI. Theyare to bereturned toFBIHQ whenno longerneeded bythe casefor whichtheiruse wasoriginally authorizedso that they naybe subsequentlyreissued.

! Show funds cannotbe depositedinto a bank or otherfinancial institutionwithout anexemption fromthe AttorneyGeneral.Upon receiptof an exemption, thefunds areto be placed ina federally insuredfinancial institution,unless otherwiseauthorized,to provide credibility to an operation.

' ! Thefundsmay be usedina display of cash toreinforce theroleof an UndercoverAgentor to consummatea proposedillegal transaction as part of an arrest Buy-Bust! scenario.

! The SAC mayapprove theuse ofup to|forShowur oses or for use in aBuy-Bust situation. The use of morethanbnust beapproved inadvance byFB'IHQ.

! Requestsfor Showor Buy-Bustfundsmust specify:

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FREEDOM OF INFORMATION/PRIVACY ACTS SECTION

COVER SHEET

SUBJECT: GUIDELINES ON UNDERCOVER

OPERATIONS



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Federal Bureauof Investigation ~

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Undercover and SensitiveOperations Unit

Attorney General'sGuidelines onFBI

Undercover OperationsRevised 11/13/92

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ATTORNEY GENERAL'S GUIDELINES ON

FEDERAL BUREAU OF INVESTIGATIONUNDERCOVER OPERATIONS

The following Guidelines on the use of undercover activitiesand operations by the Federal Bureau of Investigation FBI! areissued under the authority of the Attorney General provided inTitle 28, United States Code, Sections 509, S10, and 533. Theyapply to all investigations conducted by the FBI, except thoseconducted pursuant to its foreign counterintelligence and foreignintelligence responsibilities.



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I.

II.

III

IV.

V.

VI.

VII.

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INTRODUCTION

DEFINITIONS

GENERAL.AUTHORITYAUTHORIZATION OPUNDERCOVER OPERATIONS

§enera1 ApprovalStandards

Undercover QperationsWhich Haybe Authorizedhymthe§pecia1 Agentin Charge_1$AC1

A.

B.

Qperations whichlust beAggrovedatFBIHQCrininal UndercoverQperations ReviewCommittee

C.

D.

E. Agprovalby theDirector, DeputyDirector, orDesignated AssistantDirectorP.

G.

Agplication/Notification toPBIHQDuration ofAuthorization

H. Participationin OtherwiseIllegal ActivitybyUndercover Enployees

I. Bhergency Authorization

PROTECTING INNOCENTPARTIES AGAINSTENTRAPHENTA. Entraggggt

B. AuthorizationRequirementsC. Excegtion

NONITORINGAND CONTROLOF UNDERCOVEROPERATIONSA. Pregarationof UndercoverKnlqyeesy Infornantand

Coqperating_Witnesses

B. Review of Conduct

C.§ontinuing_Consu1tationwith theAppropriate FederProsecutor I

Serious LegalEthical, Prosecutive,or DepartlentalPolicy Questionsyand PreviouslyUnforeseen SensitCircunstances I

E._ AnnualReport ofthe UndercoverReview CommitteeF.

D.

Deposit ofProceeds; Liquidationof ProprietariesB§§ERYBTI

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I. INTRODUCTION

The use of the undercover technique, including proprietarybusiness entities, is essential to the detection, prevention, andprosecution of white collar crimes, public corruption, terrorism,

organized crime, offenses involving controlled substances, andother priority areas of investigation. However, these techniquesinherently involve an element of deception and may requirecooperation with persons whose motivation and conduct are open toquestion, and so should be carefully considered and monitored.

II. DEFINITIONS

A. "Undercover Activities means any investigativeactivity involving the use of an assumed nameor cover identityby an employee of the FBI or another Federal, state, or local lawenforcement organization working with the FBI.

B. "Undercover Operation means an investigation involvinga series of related undercover activities over a period of timeby an undercover employee. For purposes of these Guidelines, a"series of related undercover activities" generally consists ofmore than threeseparate contacts by an undercover employee withthe individual s! underinvestigation. However, undercoveractivity involving sensitive or fiscal circumstances constitutesan undercover operation regardless of the number of contactsinvolved. ' '

C. "Undercover Employee means any employee of the FBI, oremployee of aFederal, state, or local law enforcement agencyworking under the direction and control of the FBI in a.particular investigation, whose relationship with the FBI isconcealed from third parties in the course of an investigativeoperation by the maintenance of a cover or alias identity.

D. "Proprietary" meansa sole proprietorship, partnership,corporation, or other business entity operated on_a commercialbasis, which is owned, controlled, or operated wholly or in partonbehalf of the FBI, and whose relationship with the FBI isconcealed from third parties.

B. Appropriate Federal Prosecutor means aUnited StatesAttorney or Section Chief in the Criminal Division of the

Department of Justice DOJ!.

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III. GENERAL AUTHORITY '

The FBImay useundercover activitiesand conductundercoveroperations, pursuantto theseGuidelines, thatare appropriateto

carry out its law enforcement responsibilities.These guidelinesdo notapply toinvestigations utilizingconfidential informantcooperating witnessesor cooperatingsubjects, unless theinvestigation alsoutilizes anundercover employee.The FBI,through thedevelopment ofinternal policy,may chooseto applythese Guidelinesto certainconfidential informant,cooperatingwitness, andcooperating subjectoperations byreferring suchmatters tothe UndercoverReview Committeepursuant toSectionIV, Paragraph D!!.

Underthisauthority, the FBImay participatein jointundercover activitieswithotherlaw enforcement agenciesand mayoperateaproprietary to the extent necessaryto maintain an

operation's coveror effectiveness. All joint undercoveroperations areto be conducted pursuantto theseGuidelines.IV. AUTHORIZATIONOF UNDERCOVEROPERATIONSI

A.General Approval Standards:Any official consideringapproval orauthorization of a proposedundercover applicationshall weighthe risksand benefitsof theoperation, givingcareful consideration to the following factors:

! The risk of personal injury to individuals,property damage, financial loss to persons or

businesses, damageto reputation, or other harmtopersons;

! The risk of civil liability or other loss-to theGovernment; _

! Therisk of invasion of privacy or interferencewithprivileged or confidential relationships;

! The risk that individuals engaged in undercoveroperations maybecome involvedin illegal conductrestricted in paragraph IV.H.below: and

! The suitability of Government participationin thetype of activity thatis expected tooccur duringtheoperation. B

B. UndercoverOperations WhichHay beAuthorized bytheSpecial Agent in Charge SAC!

! Theestablishment, extension, or renewal of allundercover operationsto be supervised bya given fieldoffice must be approvedby the SAC. Tf the undercoveroperation does not involve any of the factors listed inparagraphIV.C.below, this approval shallconstitute

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authorization for the operation. Approval requires awritten determination, stating supporting facts andcircumstances, that: .

a! Initiation of investigative activity

regarding the alleged criminal conduct or criminalenterprise is warranted under any applicabledepartmental guidelines; "

b! The proposed undercover operation appears tobe an effective means of obtainingevidence ornecessary information. This finding shouldinclude astatement ofwhat prior investigationhas been conducted and what chance the operationhas of obtaining evidence or necessary informationconcerning the alleged criminal conductorcriminal enterprise:

c! The undercover operation willbe conductedwith minimal intrusion consistent with the need tocollect the evidence or information in atimelyand effective manner;

d! Approval for the use of any informant orconfidential source has been obtained as requiredbythe Attorney Genera1's Guidelines on Use ofInformants and Confidential Sources;

e! Any foreseeable participation by an undercover employee in illegal activity that can

beapproved by the SAConhis or her own authorityis justified bythe factors noted inparagraph H;

f! If there is no present expectation oftheoccurrence of any of the sensitive or fiscal circumstances listed in paragraph C, a statementto that effect.

! Undercover operations may be authorized pursuantto this subsection for up to six months and continuedupon renewal for an additional six-month period, for atotal ofno more than one year. Undercover operationsinitiated pursuant tothis subsection may notinvolve

the expenditure ofmore than $40,000 $100,000 in drugcases of which amaximum of$40,000 is for operationalexpenses!, or such other amountthat is set from timetotime by the Director, without approval from FBIHeadquarters FBIHQ!.

! The SAC maydelegate the responsibility toauthorize the establishment, extension, or renewal ofundercover operations to designated Assistant SpecialAgents in Charge. The delegation of this ~responsibility bythe SAC shouldbe inwriting and

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maintained in the appropriate field office. However,all undercover operations which must be authorized at FBIHQ must be approved by the SAC. '

! A copy of all written approvals described in !

above shall be forwarded promptly to FBIHQ.

Operations Which lust be Approved at FBIHQ

l! Fiscal Circumstances

In all undercover operations involving the fiscalcircumstances set out below, the SAC shall submit an application to FBIHQ in accordance with paragraph IV.F.below. A recommendation for authorization may beforwarded directly to the Director or designatedAssistant Director or, in operations involving onlyfiscal circumstances letters a! c!, to the designated

Deputy Assistant Director for final review andwauthorization, provided that the approval levelsconform to all applicable laws.

Applications for approval of undercover operationsreferred to FBIHQ only because of fiscal circumstancesneed not be considered or approved by the UndercoverReview Committee. ~

For purpose of these Guidelines, an undercoveroperation involves fiscal circumstances if there is areasonable expectation that the undercover operationwill -- '

a! Require the purchase or lease of property,equipment, buildings, or facilities; thealteration of buildings or facilities; a contract for construction or alteration of

buildings or facilities; or prepayment ofmore than one month's rent;

NOTE: The purchase, rental, or lease of property usingan assumed name or cover identity to facilitate a physical or technical surveillance is not an undercoveroperation for purposes of these Guidelines. However,since the expenditure of appropriated fundsisinvolved, approval must be obtained from FBIHQ inconformance with applicable laws.

b! Require the deposit of appropriated funds orproceeds generated by the undercover operationinto banks or other financial institutions;

c! Use the proceeds generated by the undercoveroperation to offset necessary and reasonable>expenses of the operation;

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d! Require a reimbursement or compensationagreement with cooperating individuals or entitiesfor services or losses incurred by them in aid ofthe operation any reimbursement agreement enteredinto with third parties must be reviewed bytheFBI's LegalCounsel Division!: or

e! Exceed the limitations onduration or- commitment of resources established by the

Director for operations initiated at the fieldofficelevel.

! Sensitive Circumstances

In all undercover operations involving any sensitivecircumstances listed below, the SAC shall submit anapplication toFBIHQ in accordance with paragraph Fbelow. The application shall bereviewed by '

appropriate supervisory personnel at FBIHQ and, iffavorably recommended, sent to the Undercover ReviewCommittee for consideration. The application shallthen be forwarded to the Director or a designatedAssistant Director, who may approve or disapprove theapplication. .

For purposes ofthese Guidelines, sensitivecircumstances are involved if there is a reasonableexpectation that the undercover operation will in-volve-, -

a! an investigation of possible criminal conduct92 by any elected or appointed official, or political

candidate, for a judicialr, legislative,management-, or executive-level position of trust in a Federal, state, or localgovernmental entityor political subdivision thereof;

b! an investigation ofany public official atthe Federal, state, or local level inany matterinvolving systemic corruption of any governmentalfunction; _

c! an investigation ofpossible criminal conduct

byany foreign official or government, religiousorganization, political organization, or the newsmedia;

NOTE: Thereare somecircumstances involving officialsin judicial, legislative, management, or executive-level positions whichmay logically beconsiderednonsensitive. In suchinstances, the Section Chief, ' White-Collar Crimes Section, FBIHQ, whois amember ofthe Criminal Undercover Operations Review Committee andhas a national perspective on matters involving public

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officials, mustbe consultedfor a determinationas towhether theundercover operationshouldbepresented tothe UndercoverReview Cbmmittee. _

d! Engaging in activity havinga significanteffect on or constituting a significant intrusion

into the legitimate operationof a Federal, state,or local governmental entity; '

e! Establishing, acquiring, or using aproprietary:

f! Providing goods or services which areessential to the commissionof a crime, whichgoods andservices are reasonably unavailableto a subject of the investigation except from theGovernment:

g! Activity that is proscribedbyFederal,state, or local law as a felony or that is"~otherwise aserious crime--but not includingthepurchase of stolen or contraband goods; thedelivery or sale by the Governmentof stolenproperty whoseownership cannotbe determined; thecontrolled delivery of drugs which will not enter commerce; the payments of bribes which are notincluded inthe other sensitive circumstances; orthe making of false representations to thirdparties in concealment ofpersonal identity or thetrue ownershipof a proprietary this exemptiondoes not include any statement underoath or the

penalties of perjury!. See Paragraph Hbelow!;NOTE: Someof the above activities,including thecontrolled delivery of drugs and bribepayments, aresubject to specific review and approvalprocedures.These mattersmust becoordinated withFBIHQ.

h! A significant risk that a personparticipating in an undercoveroperation will bearrested orwill supply falsely sworntestimony orfalse documentationin any legal or administrativeproceeding See paragraph H below!;

i! Attendance at a meeting or participation incommunications betweenany individual and his orher lawyer;

j! A significant risk that a third party willenter into a professional or confidentialrelationship with a personparticipating in anundercover operationwho isacting asan attorney,physician, clergyman,or memberof the newsmedia;

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* k! A request to an attorney, physician, memberof the clergy, or other person for information,that would ordinarily be privileged or to,a memberof the news media concerning an individual withwhom the news person is known to have a professional or confidential relationship;

! Participation in the activities of agroupunder investigation as part of a Domestic SecurityInvestigation or recruiting aperson from withinsuch agroup as an informant;

m! A significant risk of violence or physicalinjury to individuals or asignificant risk offinancial loss: »

n! Activities which could result in significantclaims against the United States arisingin tort,contract, or for compensation for the "taking" ofproperty; _ .

o! Untrue representations by a personparticipating in the undercover operationconcerning the activities or involvement of anythird person without that individual's knowledgeor consent.

D. Criminal Undercover Operations Review Committeei jndercover Review Committee!

! The Undercover Review Committee shallconsist of

appropriate employees of the FBI designated by theDirector and Criminal Division attorneys designated bythe Assistant Attorney General in chargeof theCriminal Division, DOJ, to be chaired by a designee ofthe Director. ,

! When an application from anSAC for approval of anundercover operation involving sensitive circumstancesspecified in paragraph C! is received by FBIHQ, uponrecommendation by the FBIHQ substantive section, theCommittee members will meet to reviev the application.Criminal Division members of the Committee may consultwith appropriate FBI personnel, senior DOJ officials,and the United States Attorney as deemed appropriate.The Committee shall submit the application to theDirector or designated Assistant Director with a ~recommendation for approval or disapproval of therequest and any recommended changes or amendments tothe proposal.

! In addition to the considerations contained inIV.A. above, the Committee shall also examine theapplication to determine whether adequate measures have

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been taken to minimize the incidence of sensitive

circumstances and reduce the risks of harm and

intrusion thatare created by such circumstances. Ifthe Committee recommends approval of an undercover"operation, the recommendation shall include a briefwritten statement explaining why the operation meritsapproval in light of the anticipated occurrence ofsensitive circumstances.

!The Committee shall recommend approval of anundercover operation only upon reaching a consensus,provided that:

a! If one or more of the designees of theAssistant Attorney General in charge of theCriminal Division does not join in a recommendation for approval of aproposedoperation because of legal, ethical, prosecutive,or departmental policy considerations, the

designee shall promptly advise the AssistantAttorney General and no further action shall betaken on the proposal until the designatedAssistant Director has had an opportunity toconsult with the Assistant Attorney General; and

b! If, upon consultation, the Assistant AttorneyGeneral disagrees with a decision by the _ designated Assistant Director to approve theproposed operation, no further action shall betaken on the proposal without the approval of theDeputy Attorney General or the Attorney General.

! The Committee should consult the Legal CounselDivision of the FBI and the Office of Legal Counsel orother appropriate division or office at DOJ about anysignificant unsettled legal questions concerningauthority for, or the conduct of, a proposed undercoveroperation.

! The Director, Assistant Attorney General, or otherofficial designated by them may refer any sensitiveinvestigative matter, including informant, cooperatingwitness, and cooperating subject operations, to theUndercover Review Committee for advice, recommendation

or comment, regardless of whether an undercoveroperation is involved.

! The United States Attorney, Special Agent inCharge or any member of their staffs, mayattend theCriminal Undercover Operations Review Committee inorder to advocate for the approval of an undercoveroperation. ~

8! If the Special Agentin Charge and the United,States Attorney jointly disagree with any stipulation

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set by the Criminal Undercover operations ReviewCommittee regardingthe approval of an undercoveroperation, they may consult with the chairman of theCriminal UndercoverOperations ReviewCommittee whomayschedule a meeting of the committee to reconsider theissue in question.

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9! At any time during the undercover operation theSpecial Agent in Charge can appealany Headquartersdecision directly to the Assistant Director. Likewise,the United States Attorneycan appealdirectly to theAssistant Attorney General, CriminalDivision, or theDeputy Attorney General as appropriate.

B. Approval by the Director, Deputy Director, AssociateDeputy Director-Investigations,or DesignatedAssistantDirector

A designated Assistant Director may approvean undercoveroperation consideredby the Undercover ReviewCommittee, unlesstheinvestigation involves sensitivecircumstances l!»orm!.Except pursuantto the limited circumstancesdescribed inSectionI below,only theDirector, DeputyDirector, orAssociate DeputyDirectorInvestigations mayapprove aproposed operationif areasonable expectation exists that:

! The undercover operation will be used toparticipate in theactivities of a groupunder .investigation as part of a DomesticSecurityInvestigation or to recruit a person from within suchagroup as an informant or confidential source SensitiveCircumstance !!;

! There maybea significant risk of violence orpersonal injury to individuals or a significant risk of

_ financial loss Sensitive Circumstance m!!.

F. Application/Notification to FBIHQ

! Application to FBIHQmust bemade foranyundercover operation requiring FBIHQapproval. Eachapplication shall include:

a! The written SACapproval describedin B!above:

b! Adescription of the proposed operationandthe particular cover to beemployed; any ' informants or other cooperating persons who willassist in the operation, including backgroundinformation, arrest record, andplea agreements;the particular offense or criminal enterpriseunderinvestigation; and any individuals known tobeinvolved;

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c! A statement'of theperiod of time for whichthe operation would be maintained: y

d! A description of how the requirements

concerning any inducements to be offered asdiscussed in Section V.B. below have been met; and

e! A statement of proposed expenses.

! Applications for approval of undercover operationsinvolving sensitive circumstances listed in paragraphC! shall also include the following information:

a! A statement of which circumstances arereasonably expected to occur, what the facts arelikely to be, and why theundercover operationmerits approval in lightof the circumstances,including: _.

i! For undercover operations involvingsensitive circumstance g!, astatement whythe participation in otherwise illegalactivity is justified under the requirementsof paragraph Hbelow, and aletter from theappropriate Federal prosecutor pursuant toparagraph F! b!;

ii! For undercover operations involvingsensitive circumstance l!, astatement why

the infiltration or recruitment isnecessaryand a description of procedures to minimizeany acquisition, retention, and disseminationof information that does not relate to thematter under investigation or to other authorized investigative activity.

b! A letter from the appropriate Federalprosecutor indicating that he or she has reviewedthe proposed operation, including the sensitivecircumstances reasonably expected to occur, agreeswith theproposal and its legality, and willprosecute any meritorious case that has developed.The letter should include a finding that theproposed investigation would be an appropriate useof the undercover technique and that thepotentialprosecutive benefits outweigh any direct costs orrisks of other harm.

! An application for the extension or renewal of anundercover operation should describe the resultsobtained from the operation or explain any failure toobtain significant results and, where sensitive ' circumstances are involved, shouldinclude a letterfrom the appropriate Federal prosecutor favoring the '

extension or renewal of authority.12



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Duration of Authorization

! An undercover'operation approvedby FBIHQmay notcontinue longerthan is necessary toachieve theobjectives specifiedin theauthorization, norin anyevent longerthan six months, withoutnew authorizationto proceed, except pursuantto subparagraph! below.! If there is significant changein either thedirection orobjectives ofan undercoveroperationapproved byFBIHQ, theoperation mustbe reviewedbythe UndercoverReview Committeeto determinewhetheranew authorization is necessary.

! An undercover operationwhichrequires review bythe UndercoverReview Committeemaybe initiated or extended onan interim basisbythedesignatedAssistant Directorin the event ofexigent

circumstances, foraperiod not toexceed 30days. Inthe caseof an initial authorization, budgetenhancement,or change in focus,the interimauthoritymustberatified by the Undercover ReviewCommitteeatits next scheduled meeting.

! An undercover operationinitially authorizedbythe SACmust bereauthorized bya designatedAssistantDirector, pursuantto paragraphsIV.CF, if it lastslongerthan 12 months orinvolves theexpenditure ofmore than $40,000 $100,000in drug cases ofwhichamaximumof $40,000 isfor operationalexpenses!, orsuchother amount that is set fromtime to time bytheDirector. No undercover operationapproved atthefield officelevel maycontinue formorethanone yearwithout obtaining approvalatFBIHQ.

! An undercover operationapproved byan SACisdeemed tocommence onthedateapproved, Q9; onthedate covert activity is begun.

! Among the factors to be considered ina determination byany approvingofficial of whether anundercover operationshould berenewed orextended are:

a! The extent to whichthe operation hasproduced the results anticipated when it wasestablished; ,

b! The potential for futuresuccess beyondthatinitially targeted:

c! The extent to which the investigationcancontinue without exposing the undervsueroperation: and V

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d! The extent to which continuation of the.investigation may cause injury, financial or

otherwise, to innocent parties.

H. Participation in Otherwise Illegal Activity byUndercover Elployees

Except when authorized pursuant to theseGuidelines, noundercover employee shall engage in any activity that wouldconstitute aviolation of Federal, state, or local law if engagedin by a private person acting without authorization. Forpurposes of these Guidelines, such activity is referred to asotherwise illegal activity.

! Justification: No official shall recommend orapprove participation by an undercover employee inotherwise illegal activity unless the participation is justified:

a! to obtain information or evidence necessary

for the success of the investigation and not if;reasonably available without participation in theotherwise illegal activity; ',

b! toestablish or maintain credibility of acover identity: or

c! toprevent death or serious bodily injury,

! Minimization: The FBI shall take reasonable stepsto minimize the participation of anundercover employeein any otherwise illegal activity. .>

! Prohibitions: An undercover employee shall not m.

a! participate in any act of violence except in ' self-defense; ,

b! initiate or instigate any plan to commitcriminal acts except in accordance with Part VAvoidance of Entrapment! below, or

c! participate in conduct which would constituteunlawful investigative techniques e.g., illegalwiretapping, illegal mail openings, breaking andentering, or trespass amounting to an illegalsearch!.

! Self-Defense: Nothing in these Guidelinesprohibits an undercover employee from taking reasonablemeasures of selfdefense in an emergency to protect hisor her own life or the lives pf others against wrongfulforce. Such measures shall be reported to theappropriate Federal prosecutor and FBIHQ, who shall

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inform the Assistant Attorney General for the CriminalDivision as soon as possible.

! Authorization:

a! The SAC must approve all undercover operations

and activities, including those which contemplateparticipation in otherwise illegal activity. Thisapproval shall constitute authorization of:

i! otherwise illegal activity which is a misdemeanor or similar minor crime underFederal, state, or local law:

ii! consensual monitoring, even if a crimeunder local law;

iii! the purchase of stolen or contrabandgoods;

iv! the delivery orsale of stolen propertywhich cannot be traced to the rightful owner;

v! the controlled delivery of drugs whichwill not enter commerce:

vi! the payment of bribes which is notincluded in the sensitive circumstances;

vii! the making of false representations tothirdparties in concealment of personal

identity or the true ownership of aproprietary but not any statement under oathor the penalties of perjury, which must beauthorized pursuant to subparagraph b!below!. .

b! Participation in otherwise illegal activitywhich is a felony or its equivalent under Federal,state, or local law requires additionalauthorization by the Assistant Director afterreview by the Undercover Review Committee. SeeSection IV E!.

c! Participation in otherwise illegal activitywhich involves a significant risk of violence orphysical injury requires authorization by the DDirector or Deputy Director after review by theUndercover ReviewCommittee. See Section IV E!.

d! If an undercover employee believes it to benecessary and appropriate underthe standards setout in subparagraph H! above,toparticipate inotherwise illegal activity that was not foreseen

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or anticipated, every effort should be made toconsult with the'SAC, whoshall seek emergencyinterim authority from the designated AssistantDirector, and review by the Undercover ReviewCommittee if possible, or, if necessary, may

provide emergency authorization under paragraph Ibelow. If consultation is impossible, and theundercover employee concludes that there is an immediate and grave threat to life, physicalsafety, or property, the undercover employee mayparticipate inthe otherwise illegal activity, solong as he does not take part inand makes everyeffort to prevent any act of violence. A reportto the SAC shall bemade assoon as possible, whoshall submit a written report to FBIHQ, whichshall promptly inform the Undercover ReviewCommittee. Adecision byan undercover employeeto participate inotherwise illegal activity underthis subsection may beretroactively authorized ifappropriate. '

e! If an undercover operation results in violencein the course of criminal activity, and anundercover employee, informant, or cooperatingwitness has participated inany manner in thecriminal activity, the SAC shall immediately.inform the appropriate Federal prosecutor andFBIHQ, which shallinform the Assistant AttorneyGeneral in charge of the Criminal Division as soonaspossible. '

Emergency Authorization

I! In situations whichrequire the prior writtenauthorization of the SAC, the SAC may orally approve anundercover operation when he or she determines that a

significant and unanticipated investigative opportunitywould be lost were the time taken to prepare a writtenauthorization. The required written authorization,with the justification for the oral approval included,shallbe prepared promptly and forwarded to FBIHQ.

! Emergency interim authorization procedures are in place within FBIHQ that provide for expeditious reviewand authorization of a proposed undercover operation.see G.!. If the SAC concludes that an emergency *situation exists which makeseven this expeditedprocedure too lengthy, in the following situations, theSAC may authorize the undercover operation:

a! In situations which would otherwise requireapproval bythe designated Assistant Director, theSAC may approve an undercover operation whenhe orshe determines that without immediate initiation,

16



92.

QO;1£5 i

! The illegal nature of the activity isreasonably clear-to potential subjects; and

! The nature of any inducement offered is justifiable in view of the character of theillegal transaction in which the individual isinvited to engage; and

! There is a reasonable expectation thatoffering the inducement will reveal illegalactivities; and

! One of the two following limitations is met:

i! There is reasonable indication that thesubject is engaging, has engaged, or islikely to engagein the illegal activityproposed or in similar illegal conduct; or,

ii! The opportunity for illegal activity hasbeen structured so that there is reason tobelieve that any persons drawn to theopportunity, or brought to it, arepredisposed to engage in the contemplatedillegal conduct.

Exception

The alternative requirements of subparagraph 8!,while not required bylaw, are imposed to ensure thatthe Governmentdoes not offer inducements to engage incrime to persons who are not predisposed to do so.These standardscan be waived onlybythe Director upona written finding that the activities are necessarytoprotect life or prevent other seriousharm.

»

VI HONITORING AND CONTROLOF UNDERCOVEROPERATIONS

Preparation of Undercover Elloyees, Inforlants, andCooperating,Witnesses

! Prior to the investigation, the SAC or adesignated Supervisory Special Agent shall review witheach undercover employee the conduct that theundercover employee is expected to undertake and otherconduct thatmay benecessary during the investigation.The SAC or Agent shall discuss with each undercoveremployee any of the sensitive or fiscal circumstancesspecified in paragraphs IV.C! or ! that arereasonably likely to occur.

! Each undercover employee shallbe instructed thatheor she shall not participate in any act of violence;initiate or instigate any plan to commit criminal acts;

18 O O



so *. |- ' _-755$ _ i: LIV

92

use unlawfulinvestigative techniquesto obtaininformation orevidence; orengage inany conductthatwould violaterestrictions oninvestigative technor FBIconduct containedin theAttorney Genera1&

Guidelines ordepartmental policy;and that,except ian emergencysituationas set out inparagraphIV.H.! d!, heor sheshall notparticipatein anyillegal activityfor whichauthorization hasnot beenobtained underthese Guidelines.The undercoveremployeeshallbe instructed inthe lawof entrapmeWhen anundercover employeelearnsthatpersons underinvestigation intendto commita violentcrime, he orshe shalltry to discourage theviolence.Review of_gggduct

From timeto time,during thecourse ofthe undercooperation, theSAC shallreview theconduct oftheundercover employee s!and othersparticipating intheundercover operation,including anyproposed orreasonable foreseeableconduct forthe remainderof theinvestigation. Anyfindings ofimpermissible conshall bediscussed withthe individual,promptlyreported tothe designatedAssistant Directorandthemembers ofthe UndercoverReview Committee,and_adetermination shallbemade as to whethertheindividual shouldcontinue hisor herparticipation inthe investigation.

Continuing Consultationwith theAppropriate FedeProsecutor

Upon initiatingand throughoutthe courseof_anyundercover operation,the SACora designatedSupervisory SpecialAgent shall'consulton acontinuinbasis withthe appropriateFederal prosecutor,particularly withrespect tothe proprietyof theoperation andthe legalsufficiency andquality ofevidencethat is being producedby theactivity.Serious Legal,Ethical,_Prosecutive, orDepartmentaPolicy Questions,and PreviouslyUnforeseen SensitCircumstances

! The SACshallconsult withthechairmanof the-Criminal UndercoverOperations ReviewCommittee, FBwhenever aserious legal,ethical, prosecutive,ordepartmental policyquestion arisesin anyundercoveroperation orif sensitivecircumstances occurthatwere not anticipated.The FBIshall consultwith the UnitedStates Attorney, or AssistantAttorney General,ortheir representative,and withDOJ membersof theUndercover ReviewCommittee onwhether tomodify,

19

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92

.

.92, ;,.

suspend, or terminate the investigation related to suchissues.

! Whenunforeseen sensitive circumstances arise,SAC shall submit a written application to FBIHQ forauthorization of an undercover operation previously

approved at the field office level, or amend theexisting application to FBIHQ pursuant to paragraphIV.F.

the

Annual Report of the Undercover Review Colmittee

! The Undercover Review Committee shall retain a file of all applications for approval of undercoveroperations submitted to it, together with awrittenrecord of the Committee's action on the applicationany ultimate disposition by the approving official.The FBI shall also prepare ashort summaryof eachundercover operation recommended for approval by the

and

Committee. Theserecords and be

available for inspection by aor Deputy Attorney General as

summaries shall

designee of theappropriate and Associate

of theAssistant Attorney General in charge of the CriminalDivision.

! On an annual basis, the Committee shall submit tothe Director, the Attorney General, the Associate orDeputy Attorney General, and the Assistant AttorneyGeneral in charge of the Criminal Division awritten

report summarizing:a! the types of undercover operations approved

and disapproved together with the reasons fordisapproval;

b! the major issues addressedby the Committee inreviewing applications and how they were resolved;and

c! any significant modifications to theoperations recommended by the Committee.

Deposit of Proceeds; Liquidation of Proprietaries

Assoon as the proceeds from any undercover operationare no longer necessaryfor the conduct of theactivity, the remaining proceeds shall be depositedin»the Treasury of the United States asmiscellaneousreceipts. A

Whenever aproprietary with a_netvalue over the amountspecified by the Department of Justice AppropriationAuthorization Act or other applicable laws is to beliquidated, sold, or otherwise disposed of, the FBI

20




FREEDOM OF INFORIVIATION/PRIVACY ACTS SECTION

COVER SHEET

SUBJECT: GUIDELINES ON UNDERCOVER

OPERATIONS



' I 92. . 7

s-.'.-

Iv. Dffirrnf IhrAltnrnrgvnvralI, Eashingtnnll.C.211530

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ATTQB§£YctntnaigsGUIDELINESon£51unbsncovtkOPERATIONSC

Thefollowingguidelinesonuseof undercoveroperationsbytheFederalBureauofInvestigationareissuedunderauthorityof theAttorneyGeneral asprovidedin28U.S.C.509,510,and533.They areconsistentwiththerequirementoftheproposedFBICharterAct, butdonotdependuponpassageof theActfor their effectiveness.

INTRODUCTIONu

DEFINITIONS

GENERALAUTHORITY

AUTHORIZATIONOFUNDERCOVEROPERATIONS

A. UndercoverOperationsthatMayNotbeApprovedbytheSpecialAgentinChargebecauseofFiscalCircumstances

B. UndercoverOperationsthatMayNotbeApprovedbytheSpecialAgentin ChargeBecauseof SensitiveCircumstances --

C. UndercoverOperationsthatMaybe ApprovedbytheSpecialAgentin Charge

D. ApprovalbyHeadquartersUndercoverOperationsReviewCommittee,andDirectororDesignatedAssistantDirector!,withConcurrenceof UnitedStatesAttorneyorStrike ForceChief,WhereSensitiveor FiscalCircumstancesArePresent

E. Applicationsto Headquarters

F. UndercoverOperationsReviewCommittee

G. ApprovalbyDirectororDeisgnatedAssistantDirector

H. Durationof Authorizations



I. Authorization of Participation In "OtherwiseIllegal" Activity '

J. Authorizationof the Creation ofOpportunitiesfor Illegal Activity '

K.Authorization of Investigative InterviewsI That are Not Part of an Undercover Operation

MONITORING ANDCONTROL OFUNDERCOVER OPERATIONS

L. Continuing Consultation with United StatesAttorney orStrike ForceChief

H.Serious Legal, Ethical, Prosecutive, orDepartmentalPolicy Questions, and Previously Unforeseen SensitiveCircumstances

N.Emergency Authorization

O. AnnualReport of Undercover Operations Review.Committee

P.Preparation of Undercover Employees

Q. Review of Undercover Employee Conduct

R. Deposit of Proceeds; Liquidation of Proprietaries

RESERVATION

a.-,

E~-w ~-v



QQ

INTRODUCTION

»

The FBI'suse of undercover employees and operation ofproprietary business entities is a lawful.and essential technique

in the detection and investigation of white collar crime,political corruption, organized crime, and other priority areas.However, use of this technique inherently involves an element ofdeception, and occasionally may require a degree of cooperationwith persons whose motivation and conductare open to question,and so should be carefully considered and monitored.

DEFII2 *"-IlIOJS

An "undercoveremployee," underthese guidelines, is anyemployee of the FBI -- or employee of a federal, state or local

law enforcement agency working under the direction andmcontrolof the FBI in aparticular investigation -- whose relationshipwith the FBI isconcealed from thirdparties inthe course of aninvestigative operation bythe maintenance of a cover or alias identity. '

An "undercover operation" is any investigative operation inwhich an undercover employee isused.

A "proprietary" is a sole proprietorship, partnership,corporation, or other business entity owned or controlled bytheFBI, used by the FBI in connection with an undercover operation,and whoserelationship with the FBI is not generally acknowledged

GENERAL AUTHORITY

l! The FBI may conduct undercover operations, pursuant totheseguidelines, that are appropriate to carryout its investigativeresponsibilities indomestic law enforcement.

Underthis authority, the FBI may participate in jointundercover operations with other federal, state, and local lawenforcement agencies; may seek operational assistance for an

undercover operation from any suitable informant, confidentialsource, or other cooperating private individual; and may operateaproprietary on a commercialbasisto the extentnecessary tomaintain anoperation's cover or effectiveness.

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.! Undercover operations can be"full investigation" stage in Domestic

0

authorized only at theSecurity Investigations.

AUTHORIZATION OFUNDERCOVER OPERATIONS '

All undercoveroperations underthese guidelinesfall into fone oftwo categories:l! those undercover operationsthat canbe approvedby theSpecial Agentin ChargeSAC! underhis ownauthority, and! thoseundercover operationsthat canonly be.authorized bythe Directoror designatedAssistant Director,upon favorablerecommendations bythe SAC,Bureau headquarteFBIHQ!, andthe UndercoverOperations ReviewComitee, Under-

cover operationsin the latter category are thosethat involve asubstantial expenditureof governmentfunds, orotherwise implifiscal policiesand considerations.Paragraph A!.Also includedin this latter categoryare undercoveroperations thatinvolvewhat aretermed "sensitivecircumstances." Ingeneral,these are undercoveroperations involvinginvestigation ofpubliccorruption, or undercover operationsthat involve risks ofvarious formsof harmand intrusion.Paragraph B!.Of course,in planningan undercoveroperation,these risks of harmandintrusion willbe avoidedwhenever possible,consistent withtheneed toobtain necessaryevidence ina timely and effectivemanner.

A. UndercoverOperations thatMay Notbe Approvedby theSpecialAgent in Charge becauseof FiscalCircumstances! Subject to the emergency authorizationprocedures set

forth in paragraph N,the SACmay notauthorize theestablishmenextension or renewal of an undercoveroperation if there is areasonable expectation that: '

a! The undercover operationcould result in significantcivil claims against theUnited States,either arisin

vin tort, contract or claims for just compensationfor the "taking" of property;

b! The undercover operationwill require leasingor contracting for property, supplies, services,equipment,orfacilities for any period extendingbeyond the September 30termination date of thethen current fiscal year, orwith prepayment of

more thanone month'srent; or will require leasingany facilities in the District of Columbia;

c! The undercover operationwill requirethe use of appropriated funds to establishor acquire a proprietary, or to operatesuch a proprietary on a comercial basis;



b!

!

d!

e!

F!

g!

h!

i!

O I a - 4 -

The undercover operation will involveuntrue representations by an undercoveremployee or cooperating private individualconcerning the activities or involvementofany innocent person;

An undercoveremployee orcooperating privateindividual will engage inany activity thatis proscribed by federal, state, or locallaw as afelony or that is otherwise aserious crime --except this shall notinclude criminal liability for the purchaseofstolen or contraband goods or for themaking of falserepresentations to thirdparties in concealmentofpersonal identityor the true ownership of a proprietary;

Anundercover employee or cooperating privateindividual will seek to supply an item orservice that would be reasonably unavailableto criminal actors but forthe participationofthe government;

An undercover employee or cooperatingprivate individual will run a significantrisk ofbeing arrested and seeking to continueundercover;

An undc-rcnvc-r c-nwployce or COOP Tfl§'_ private individual will be required Lu

give sworn testimony in any proceedingin an undercover capacity;

An undercoveremployee orcooperatingprivate individual will attend ameetingbetween asubject ofthe investigationand his lawyer;

An undercover employee or cooperatingprivate individual will pose asan attorney,physician, clergyman, or member ofthe newsmedia, and there is asignificant risk thatanother individual will be led into a

professional or confidential relationshipwith the undercover employeeor cooperatingprivate individual as a result ofthe pose;

A request for information will be madeby an undercover employeeor cooperatingindividual to an attorney, physician, clergyman,or other person who is unde the obligation



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of a legal privilege of confidentiality, andthe particular information would ordinarily beprivileged;

j! A request for information will be madeby an undercover employee or cooperatingprivate individual to a member of the newsmedia concerning any individual with whomthe newsman is known to have a professionalor confidential relationship;

k! The undercover operation will be used toinfiltrate a group under investigationaspart of a Domestic Security Investigation,or to recruit a person from within such agroup asan informant;

l! There may be a significant risk of violenceor physical injury to individuals or asignificant risk of financial loss to aninnocent individual.

C. Undercover Operations that May be Approved by the§pecial Agent in Chargg

! The SAC may authorize the establishment, extensionor renewal of all other undercover operations, to be supervisedby his field office, upon his written determination, statingsupporting factsand circumstances, that:

a! Initiation of investigative activity regardingthe alleged criminal conduct or criminalenterprise is warranted under the AttorneyGeneral's Guidelineson the Investigation of &#3General Crimes, the Attorney GeneralsGuidelines on Domestic Security Investigations,the Attorney General's Guidelineson Investigationof Criminal Enterprises Engaged in RacketeeringActivity, and any other applicable guidelines;

b! The proposed undercover operation appears

to be an effective means of obtainingevidence or necessary information; thisshould include a statement of whatpriorinvestigation has been conducted, and whatchance the operation has of obtainingevidence or necessary information concerning

the alleged criminal conduct or criminal" enterprise; -



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c! The undercover operation will be conductedwith minimal intrusion consistent with the ,needto collect the evidence or informationin a timely and effective manner;

d! Approval for the use of any informantor confidential source has been obtained

as required by the Attorney General'sGuidelines on Use of Informants and

Confidential Sources;

e! There is no present expectation of theoccurrence of any of the circumstanceslisted in paragraphs Aand B;

f! Any foreseeable participation by anundercover.employee or cooperating private individual

in illegal activity that can be approved bya SAC on his own authority that is, the_ purchase of stolen or contraband goods, orparticipation in a nonserious misdemeanor!,is justified by the factors noted inparagraph 1!.

D. Approval by Headguarters Undercover OperationsReview CommitteeL and Director or Designated AssistantDirector!, withConrurrence of United States Attorneyor Strike Force Chief, Where Sensitive or FiscalCircumstances Are Present

The Director of the FBI or a designated AssistantDirector must approve the establishment, extension, or renewal of an undercover operation if there is a reasonableexpectation that any of the circumstances listed in paragraphsAand B may occur. .

In such cases, the SAC shall first makeapplication toFBI Headquarters FBIHQ!. See paragraph E below. FBIHQ mayeither disapprove the application or recommendthat itbeapproved. A recommendation for approval may be forwardeddirectly to the Director or designated Assistant Director ifthe application was submitted to FBIHQ solel because of afiscal circumstance listed in paragraph AZb§- e!. In all

other cases in which FBIHQ recommends approval, the applicationshall be forwarded to the Undercover Operations ReviewComittee for consideration. See paragraph E. If approved gby the Undercover Operations Review Committee, the applicationshall be forwarded to the Director or designated AssistantDirector. See paragraph G. The Director or designatedAssistant Director may approve or disapprove the application.

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E. Applications to Headquarters

! Each application to Headquarters from a SAC recommending

approval of the establishment, extension, or renewal of anunder-cover operation involving circumstances listed in paragraphs Aand B shall be made in writing andshall include, with supportingfacts and circumstances:

a!

b!

C!

A description of the proposed undercoveroperation, including the particular cover tobe employed and any informants or othercooperating persons who will assist in theoperation; a description of the particularoffense or criminal enterprise underinvestigation, and any individuals knownto be involved; and astatement of the

period of time for which the undercoveroperation would be maintained;

A description of how the determinationsrequired by paragraph C l! a! - d! havebeen met;

A statement of which circumstances specifiedinparagraphs A and B are reasonablyexpected to occur, what the operative factsare likely to be, and why the undercoveroperation merits approval in lightof thecircumstances, including,

i

ii

for any foreseeable participation byanundcrcovcr employee or cooperatingprivate individual inactivity that isproscribed by federal, state, orlocallaw as afelony or that is otherwise aserious crime - but not including thepurchase of stolen or contraband goodsor making of false representations tothird parties inconcealment of personalidentity or the true ownership of aproprietary -- a statement why the

participation is justified by the factorsnoted in paragraph 1!, and a statementof the federal prosecutor's approvalpursuant to paragraph 1!;

for any planned infiltration by anundercover employee or cooperating privateindividual of a group under investigationas part ofva Domestic Security Investigatior re~ruitment of a person from within

OT1



O 8 II

such a group as an informant, a statementwhy the infiltration or recruitment isnecessary and meets the requirements ofthe Attorney General's Guidelines onDomestic Security Investigations; anda description of procedures to minimize

any acquisition, retention, anddissemination of information that does notrelate to the matter under investigationor to anyother authorized investigativeactivity.

A statement of proposed expenses;

e! Astatement that the United States Attorneyor Strike Force Chief is knowledgeable aboutthe proposed operation, including the sensitivecircumstances reasonably expected to occur;concurs with the proposal and its objectivesand legality; and agrees to prosecute any»meritorious case that is developed.

! In the highlyunusual event that there are compellingreasons that either the United States Attorney or StrikeForce Chief should not be advised of the proposed undercoveroperation, the Assistant Attorney General in charge of theCriminal Division, or otherDepartment of Justice attorneydesignated by him, may substitute for such person s! forpurposes of any authorization or other function required bythese guidelines. Where the SAC determines that such substitutionis necessary, the application to FBIHQ shallinclude a

statement of the compelling reasons, together with supportingfacts and circumstances, which are believed to justify thatdetermination. Such applications may only be authorizedpursuant to the procedures prescribed in paragraph F, below,whetherior not consideration by theUndercover OperationsReview Committeeis otherwise required, and upon the approvalof the Assistant Attorney General in charge of the CriminalDivision.

! An application for the extension or renewalofauthority to engagein an undercover operation should alsodescribe the results so far obtained from the operation or a reasonable explanation of any failure to obtain significantresults, and a statement thatthe United States Attorney orStrike Force Chief favors the extension or renewal of authority.

F; Undercover Operations Review Committee

!. There shall be an Undercover Operations ReviewCommittee; consisting of appropriate employees of the FBI



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designated by the Director, and'attorneys ofthe Department ofJustice designated by the Assistant Attorney General in chargeof the Criminal Division, to be chaired by a designee of theDirector.

! Upon receipt from FBIHQ of a SAC'sapplication forapproval of an undercover operation, the Committee will reviewthe application. The Justice Department members of the Committeemay consult with senior Department officials and the UnitedStates Attorney or Strike Force Chief, as they deem appropriate.If the Committee concurs in the determinations contained in the

application, and finds that in other respects the undercoveroperation should go forward, see paragraph F! and ! below,the Committee is authorized to recommend to the Director or

designated Assistant Director, see paragraph G, that approval begranted.

!» In reviewing the application, the Committee shall carefully assess the contemplated benefits of the undercoveroperation, together with the operating and other costs of theproposed operation. In assessing the costs of the undercoveroperation, the Committee shall consider, where relevant, the _ following factors, among others:

a!

b!

C!

d!

e!

f!

s!

the risk of harm to private individuals orundercover employees;

the risk of financial loss to private individualsand businesses, and the risk of damage liability

or other loss to the government;

the risk of harm to reputation;

the risk of harm to privileged or confidentialrelationships;

the risk of invasion of privacy;

the degree to which the actions of undercoveremployees or cooperating private individuals mayapproach the conduct proscribed in paragraph J

below; and

the suitability of undercover employees orcooperating private individuals participating-in activity of the sort contemplated duringthe undercover operation.

! If the proposed undercover operation involves any ofthe sensitive circumstances listed~in paragraph B, the Committeeshall also examine the application to determine whether the



O O-1Q-

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undercover operation is planned so as to minimize the incidenceof such sensitive circumstances, and to minimize the risks ofharm and intrusion that are created by such circumstances. Ifthe Committee recommends approval of an undercover operation

involving sensitive circumstances, the recomendation shallinclude a brief written statement explaining why the undercoveroperation meritsapproval in light of the anticipated occurrenceof suchsensitive circumstances.

! The Committee shall recommend approval of anunder-coveroperation only upon reaching aconsensus, provided that:

a! If one or more of thedesignees of theAssistant Attorney General in chargeofthe Criminal Division does not join ina recommendation for approval of aproposedundercover operation because of legal, ethical,

prosecutive or Departmental policy considerations,the designee shall promptly advise the AssistantAttorney General and there shall be no approvalof the establishment, extension, or renewalof the undercover operation until the AssistantAttorney General has had theopportunity toconsult with the Director;

b! If, upon consultation, the Assistant AttorneyGeneral disagrees with a decision by theDirector to approve the proposed undercoveroperation, there shall be no establishment,extension or renewal of the undercover

operation until the Assistant AttorneyGeneral has had an opportunity to refer the matterto the Deputy Attorney Generalor Attorney General.

! The Comittee should consult the Legal Counsel Divisionof the FBI, and the Office of Legal Counsel or other appropriatedivision or office in the Department of Justice, about anysignificant unsettled legal questions concerning authority foror the conduct of aproposed undercover operation.

G. Approval by Director or Designated Assistant Director

The Director or a designated Assistant Director shall have-authority to approve operations recommended for approval by theUndercover Operations Review Committee, provided that only theDirector may authorize a proposed operation if a reasonableexpectation exists that:



' C I- 11 -

a! There may be a significant risk of violence orphysical injury to individuals;

b! The undercover operation will be used to infiltratea group under investigation as part of a DomesticSecurity Investigation, or to recruit apersonfrom within such a group as an informant orconfidential source, in which case the Director'sauthorization shall include a statement ofprocedures to minimize any acquisition, retention,and dissemination of information that does notrelate to the matter under investigation or toany other authorized investigative activity; or

c! A circumstance specified in paragraph A b!- e!is reasonably expected to occur, in which casethe undercover operation may be implemented

»only after the Deputy Attorney General or

Attorney General has specifically approved thataspect of the operation in accordance with applicable law.

H. Duration of Authorizations

! An undercover operation may not continue longerthan is necessary to achieve the objective of the authorization,nor in any event longer than 6 months without new authorizationto proceed.

! Any undercover operation initially approved by a SAC must be reauthorized by an Assistant Director or the

Director, pursuant to paragraphs D-G, if it lasts longerthan 6 months or involves expenditures in excess of theamount prescribed in paragraph A g!.

I. Authorization of Participation In "Otherwise Illegal" Activity

Nothwithstanding any other provision of thcsc guidelines,an undercover employee or cooperating private individualshall not engage, except in accordance with this paragraph,in any activity that wouldconstitute a crime under state orfederal law if engaged in bya private person acting withoutthe approval or authorization of an appropriate governmentofficial. For purposes of this paragraph, such activity isreferred to as "otherwise illegal" activity.

' ! No official shall recommend or approve an undercoveremployee's orcooperating private individual's plannedorreasonably foreseeable participation in otherwise illegalactivity unless the participation is justified in order:



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Ux

a! to obtain information or evidence necessaryfor paramount prosecutive purposes;

b! to establish and maintain credibility orcover with persons associated with the

criminal activity under investigation; or

c! toprevent or avoid the danger of death orserious bodily injury.

! Participation in any activity that is proscribedby federal, state, or local law as a felony or that isotherwise a serious crime -- but not including the purchaseof stolen or contraband goods or the making of false representationsto third parties in concealment of personal identity or thetrue ownership of a proprietary - must beapproved inadvance by an Assistant Director on the recommendation of

the Undercover Operations Review Committee pursuant toparagraphs DG, except that the Director's approval is~required for participation in any otherwise illegal activityinvolving a significant risk of violence or physical injuryto individuals. Approvals shall berecorded in writing.

A recomendation to FBIHQ for approval of participationin such otherwise illegal activity must include the views ofthe United States Attorney, Strike Force Chief, or AssistantAttorney General on why the participation is warranted.

! Participation in thepurchase of stolen or contrabandgoods, or in a nonserious misdemeanor, must beapproved in

advance bythe Special Agent in Charge. Approvalsby theSAC shall be recorded in writing.

! The FBI shall take reasonable steps to minimizethe participation of an undercover employee or cooperatingprivate individual in any otherwise illegal activity.

! An undercover employee or cooperating privateindividual shall not participate in any act of violence,initiate or instigate any plan to commit criminal acts, oruse unlawful investigative techniques to obtain informationor evidence for the FBI e.g., illegal wiretapping, illegalmail openings, breaking and entering, or trespass amountingto an illegal search!.

! If it becomes necessary to participate in otherwise~illegal activity that was not foreseenor anticipated, anundercover employee should make every effortto consult withthe SAC. For otherwise illegal activity that is a felony ora serious misdemeanor, the SAC can provide emergency authorization



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underrparagraph N. If consultation with the SAC is impossibleand there is an imediate and grave threat to lifeor physicalsafety including destructionof property through arson orbombing!. an undercover employee may participate in the otherwiseillegal activity so long as he does not take part inand makesevery effort to prevent any act of violence. A report to the SAC

shall be made as soon as possible after the participation, andthe SAC shall submit a full report to FBIHQ. FBIHQ shall promptlyinform the members of the Undercover Operations Review Committee.

! Nothing in theseguidelines prohibits establishing,funding, and maintaining secure cover for an undercover operationby making false representations to third parties in concealmentof personal identity or the true ownership of a proprietarye.g., false statements in obtaining driver's licenses, vehicle

registrations, occupancy permits, and business licenses! whensuch action is approved in advance by the appropriate SAC.

8! Nothing in paragraph I! or ! prohibits an undercoveremployee from taking reasonable measures of self defense in an emergency to protect his own life or the life of others againstwrongful force. Such measures shall be reported to the SAC andthe United States Attorney, Strike Force Chief, or AssistantAttorney General as soon as possible.

9! If a serious incident of violence should occur in thecourse of acriminal activity and an undercover employee orcooperating private individual has participated in any fashion inthe criminal activity, the SAC shall imediately inform FBIHQ.Headquarters shall promptly inform the Assistant Attorney Generalin charge of the Criminal Division.

J. Authorigation of the Creation of Opportunities forlllegal Activity

! Entrapment should be scrupulously avoided. Entrapmentis the inducement or encouragement of an individual to engage inillegal activity in which he would otherwise not be disposed toengage.

! In addition to complying with any legalrequirements,before approving an undercover operation involving an invitationto engage in illegal activity, the approving authority should besatisfied that

a! The corrupt nature of the activity isreasonably clear to potential subjects;

_ b! There is a reasonable indication thattheundercover operation will reveal illegalactivities; and _ -



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c! The nature of any inducement is notunjustifiable in view of the characterof the illegal transaction in which the .individual is invited to engage.

! Under the law of entrapment, inducementsmmaybe offered_ to an individual eventhough there is noreasonable indicationthat that particular individual has engaged, or is engaging,inthe illegal activity that is properly under investigation. None-theless, no such undercover operation shall be approved withoutthe specific written authorization of theDirector, unless theUndercover Operations Review Committeedetermines See paragraphF!, insofar as practicable, that ' ' either

a! thereis a reasonable indication, basedon information developedthrough informants

or other means,that the subject is engaging,has engaged, or is likely to engage in illegalactivity of a similar type; Q;

b! The opportunity for illegal activity has beenstructured so that thereis reason forbelievingthat persons drawnto the opportu-nity, or brought to it, are predisposed to engageinthe contemplated illegal activity.

A! In any undercover operation, the decision to offer aninducement to an individual, or to otherwise invitean individualto engagein illegal activity, shall be based solely on law enforment considerations.

K. Authorization of Investigative Interviews that areNot Part of an Undercover Operation

Notwithstanding any otherprovision of theseguidelines,routine investigative interviews that are not part of anundercover operation may-be conducted without the authorizationof FBIHQ, andwithout compliance with paragraphs C, D, andE. These include so-called "pretext" interviews, in which anFBI employee uses an alias or cover identity to conceal hisrelationship with the FBI.

However, this authority does not apply to an investigativeinterview that involves a sensitive circumstance listed inparagraph B.Any investigativeinterview involvinga sensitivecircumstance -- evenan interview that is not conducted as part of an undercover operation -- may only be approvedpursuant to the procedures set forth in paragraphs D, E, F,and G, or pursuant to the emergency_authority prescribed inparagraph N, if applicable.



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MONITORING AND CONTROL OF UNDERCOVER OPERATIONS

L. Continuing_Consultation with United States Attorney9r Strike Force Chief

Throughout the course of any undercover operation thathas been approved by Headquarters, the SAC shall consultperiodically with the United States Attorney, Strike ForceChief, or Assistant Attorney General concerning the plansand tactics and anticipated problems of the operation.

M. Serious Legal, Ethical, Prosecutive, or DepartmentalPolicy Questions, and Previously*Unforeseen ISensitive Circumstances

! In any undercover operation, the SAC shall consultwith Headquarters whenever a serious legal,ethical, prosecutive,or Departmental policy question is presented by the operation.

FBIHQ shall promptly inform the Department of Justice members ofthe Undercover Operations Review Committee of any such questionand its proposed resolution.

! This procedure shall always be followed if an undercoveroperation is likelyto involve one of thecircumstances listed inparagraphs A and B and either a! The SAC'sapplication to FBIHQdid not contemplate the occurrence of thatcircumstance, or b!the undercover operation was approved by the SAC under his ownauthority. In such cases the SAC shall also submit a writtenapplication for continued authorization of the operation or an amendment of the existing application to Headquarters pursuant toparagraph B.

Whenever such anew authorization or amended authorizationis required, the FBI shall consult with the United States Attorney,Strike Force Chief, or Assistant Attorney General, and with theDepartment of Justice members of the Undercover Operations ReviewCommittee on whether to modify, suspend, or terminate the undercoveroperation pending full processing of the application or amendment.

N. Emergency Authorization

Notwithstanding any other provision of these guidelines, anySAC who reasonably determines that:

a! an emergency situation exists requiringthe establishment, extension, renewal, ormodification of an undercover operationbefore an authorization mandated by theseguidelines can with due diligence be obtained,in order to protect life or substantialproperty, to apprehend or identify afleeingoffender, to prevent the hiding or destructionof essential evidence, or to avoid other graveharm; and ~ I

b! there are grounds upon which authorizationcould be obtained under these guidelines,



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may approve the establishment, extension, renewal, or modificationof anundercover operation if awritten application forapproval is submitted to Headquarters within_48 hours afterthe undercover operation has been established, extended,

renewed, or modified. In such an emergency situation theSAC shall attempt to consult by telephone with the UnitedStates Attorney, Strike Force Chief, or Assistant AttorneyGeneral, and with a designated Assistant Director. FBIHQshall promptly inform the Department of Justice members ofthe Undercover Operations Review Committee of the emergencyauthorization. In the event the subsequent written applicationfor approval is denied, afull report of all activity undertakenduring the course of the operation shall be submitted to theDirector, who shall inform the Deputy Attorney General.

O. Annual Report of Undercover Operations Review Committee

l! The Undercover Operations Review Committee shallretain a file of all applications for approval of undercoveroperations submitted to it, together with a written recordof the Committee's action on the applications and any ultimatedisposition by the Director or a designated Assistant Director.The FBI shall also prepare a short summary of each undercoveroperation approved by the Comittee. Theserecords andsummaries shall be available for inspection by a designee ofthe Deputy Attorney General or of the Assistant AttorneyGeneral in charge of the Criminal Division.

! On an annual basis, the Committee shall submit tothe Director, the Attorney General, the Deputy AttorneyGeneral, and the Assistant Attorney General in charge of theCriminal Division, awritten report summarizing: a! thetypes of undercover operations approved; and b! the majorissues addressed by the Committee in reviewing applicationsand how they were resolved.

P. Preparation of Undercover Employees A

l! The SAC or a designated supervisory agent shallreview with each undercover employee prior to the employee'sparticipation in an investigation, the conduct that theundercover employee is expected to undertake and other

conduct whose necessity during the investigation is foreseeable.The SAC or designated supervisory agent shall expresslydiscuss with each undercover employee any of the circumstancesspecified in paragraphs A and B which is reasonably expectedto occur. . -

Each undercover employee shall beinstructed generally,and in relation to the proposed undercovev operation thathe shall not participate in any act of violence; initiate



!.x

or instigate any plan toinvestigative techniques

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commit criminal acts; use unlawful

to obtain information or evidence;or engage in any conduct that would violate restrictions oninvestigative techniques or FBI conduct contained in AttorneyGeneral Guidelines or other Department policy; and that, ~except in anemergency situation, he shall not participatein any illegal activity for which authorization has not beenobtained underthese guidelines. when the FBI learnsthatpersons under investigation intend to commit aviolentcrime, any undercover employee used in connection with theinvestigation shall be instructed to try to discourage the -violence. _

! To the extent feasible, a similar review shall beconducted by a Special Agent with each cooperating privateindividual. '

Q. Review of Undercover Employee Conduct . W _

! From time to time during the course of the investigation,as is practicable, the SAC or designated supervisory agentshall review the actual conductof the undercover employee,as well as the employee's proposed or reasonably foreseeableconduct for the remainder of the investigation, and shallmake adetermination whether the conduct of the employee hasbeen permissible. This determination shall be communicated

to the undercover employee as soon as practicable. Anyfindings of impermissible conduct shall be promptly reportedto the Director, and consultation with the Director shall beundertaken before the employee continues his participationin the investigation. To the extent feasible, a similarreview shall be made of the conduct of each cooperatingprivate individual.

! A written report on the use of false representationsto third parties in concealment of personal identity or thetrue ownership of a proprietary, for establishing, funding,and maintaining secure cover for an undercover operation,shallbe submitted to the SAC or designated supervisory

agent at the conclusion of the undercover operation. Awritten report on participation in any other activityproscribed by federal, stateor local law shall be made byan undercover employee to the SAC or designated supervisoryagent every 60 days and at the conclusion of the participationin the illegal activity.

R.Deposit of Proceeds; Liquidation of Proprietaries 4

' As soon as the proceeds from an undercover operationare no longer necessary for the conduct of the operation,

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the remaining proceeds shall be deposited in the Treasury ofthe United States as miscellaneous receipts.

Whenever a proprietary with a net value over $50,000 isto be liquidated, sold, or otherwise disposed of, the FBI,as much in advance as the Director or his designee shalldetermine is practicable, shall report the circumstances tothe Attorney General and the Comptroller General. Theproceeds of the liquidation, sale, or other disposition,after obligations are met, shall be deposited inthe Treasuryof the United States as receipts.

RESERVATION

These guidelines on the use of undercover operationsare set forthsolely for the purpose of internal Departmentof Justice guidance. They are not intended to, do not, andmay not he reliedupon to, create anyrights, substantive orprocedural, enforceable at law by any party in any matter,civil or criminal, nor do they place any limitations onotherwise lawful investigative or litigative prerogatives ofthe Department of Justice.

]@__7___. {>_Benjénin R.CivilettiAttorney General

_/ / Date: I

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