FEDERAL BUREAU OF INVESTIGATION

FREEDOM OF INFORMATION/PRIVACY ACTS SECTION

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 or trap and trace devioipursuant 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 Title III" provision found in Title 18, USC, Section2518�!. However, there are several differences. First, the nuber ofstatutorily designated DOJ officials who lay approve emergency use oftrap and trace devices in Federal investigations is broadened toinclude "any Assistant Attorney General, any acting Assistant AttorneyGeneral, or any Deputy Assistant Attorney General." Second, unlikeSection 2518�!, the emergency trap and trace statute does not includeemergency situations involving "conspiratorial activities threateningthe national security interest." In those rare situations where an"eaergency" trap and trace would be required for use in situationsthreatening the national security, consideration should be given: a!to utilizing the emergency provisions of the Foreign IntelligenceSurveillance Act of 1978 FISA!, which regulates pen register/trap andtrace devices as well as electronic surveillance interceptions innational security investigations, which include criminal espionagecases; or b! to emphasizing that the situation, although threateningthe national security, either involves an iluediate danger of death orserious physical injury to any person or that the situation concernsconspiratorial activities characteristic of organized crime- e.g., aterrorist group's plan to boab a building!. Of course, ifinvestigative or law enforcement officers are dealing with thetelephone subscriber or customer user!, the customer's consent, as isindicated in Section 3l21 b!�!, is sufficient, and a court order neednot be obtained. Use Fora FD�472 to docuaent consent.

EFFECTIVE: O3/23/92

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

NOTE: FBI UNDERCOVER ACTIVITIES � FCI MATTERS, SEE FC1HANUAL.!

The undercover technique is one of the most effective andsuccessful investigative tools the Federal Bureau of Investigation hasto investigate crime. As such, it should be protected and used

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Hanual of Investigative Operations and GuidelinesPart II ~ PAGE 10

wisely. The conduct of undercover operations UCOs! is governed bythe Attorney Genera1's Guidelines AG6! on FBI Undercover Operationswhich were initially approved in 1980 and revised ll/13/92. The FIELDGUIDE FOR UNDERCOVER AND SENSITIVE OPERATIONS which sets forth FBIpolicies and procedures concerning the conduct of UCOs has beendisseminated to the field. The field office undercover coordinator UCC! and the Undercover and Sensitive Operations Unit USOU!,Criminal Investigative Division, FBI Headquarters, should be consultedregarding specific questions relating to UCOs.

EFFECTIVE: 12/O7/93

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EFFECTIVE: 10/18/93

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EFFECTIVE: 10/18/93

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EFFECTIVE: 10/18/93

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Manual of Investigative Operations and GuidelinesPart II PAGE 10

l0-14.1.5 Undercover Funding Authority

Request for advance funding for FCI, Group I and Group IIUndercover Operations should be made to the substantive desk at FBIHQ.Short-tern FCI and Group II Undercover Operations lay be funded fromthe|draft system.| Larger FCI and Group II cases nay use advancedfunds if theldraft syatealis insufficient to fund the operation. AllGroup I Undercover Operations are funded from FIIHQ advances.Authority to conduct undercover operations is discussed in Part II,l0-ll, of this manual, "FBI UNDERCOVER ACTIVITIES - CRIMINAL MATTERS."Authority to conduct undercover operations in PCI natters is discussedin Part I, Section 0-6 of the Foreign Counterintelligence Manual. ~ ~

EFFECTIVE: 12/07/93

10'l4.l.6 Show and Buyrbust Honey Funding Authority

�! Show and Buyrbust noney is available on a case-by-case basis to provide financial credibility for an asset/informant,cooperating witness or Undercover Agent or to consummate a proposedillegal transaction in support of a specific investigative case. Use-of these funds does NOT constitute an EXPENDITURE of appropriatedfunds. Such funds are NEVER to be allowed to becoae evidence or toleave the care, custody or control of the FBI. They are to bereturned to FBIHQ when no longer needed by the case for which theiruse was originally authorized so that they nay be subsequentlyreissued.

�! Show funds cannot be deposited into a bank or otherfinancial institution without an exemption from the Attorney General.Upon receipt of an exemption, the funds are to be placed in afederally insured financial institution, unless otherwise authorized,to provide credibility to an operation.

' �! The funds may be used in a display of cash toreinforce the role of an Undercover Agent or to consummate a proposedillegal transaction as part of an arrest Buy-Bust! scenario.

�! The SAC may approve the use of up to�|forShow ur oses or for use in a Buy-Bust situation. The use of morethanbnust be approved in advance by FB'IHQ.

�! Requests for Show or Buy-Bust funds must specify:

l Sensitivern1urzn= 03/14/94

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FEDERAL BUREAU OF INVESTIGATION

FREEDOM OF INFORMATION/PRIVACY ACTS SECTION

COVER SHEET

SUBJECT: GUIDELINES ON UNDERCOVER

OPERATIONS

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s Q 1 ti?u.s. Department ofJustice � V

Federal Bureau of Investigation ~

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Undercover and Sensitive

Operations Unit

Attorney General 'sGuidelines on FBI

Undercover OperationsRevised 11/13/92

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� ATTORNEY GENERAL&#39;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.AUTHORITY

AUTHORIZATION OP UNDERCOVER OPERATIONS§enera1 Approval Standards

Undercover Qperations Which Hay be Authorized hymthe§pecia1 Agent in Charge_1$AC1

A.

B.

Qperations which lust be Aggroved at FBIHQCrininal Undercover Qperations Review Committee

C.

D.

E. Agproval by the Director, Deputy Director, or �Designated Assistant Director

P.

G.

Agplication/Notification to PBIHQDuration of Authorization

H. Participation in Otherwise Illegal Activity byUndercover Enployees

I. Bhergency Authorization

PROTECTING INNOCENT PARTIES AGAINST ENTRAPHENTA. Entraggggt

B. Authorization RequirementsC. Excegtion

NONITORING AND CONTROL OF UNDERCOVER OPERATIONSA. Pregaration of Undercover Knlqyeesy Infornants, and

Coqperating_WitnessesB. Review of Conduct

C. §ontinuing_Consu1tation with the Appropriate FederalProsecutor I

Serious Legal� Ethical, Prosecutive, or DepartlentalPolicy Questionsy and Previously Unforeseen SensitiveCircunstances I

E._ Annual Report of the Undercover Review CommitteeF.

D.

Deposit of Proceeds; Liquidation of 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 name or 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 three separate contacts by an undercover employee withthe individual s! under investigation. However, undercoveractivity involving sensitive or fiscal circumstances constitutesan undercover operation regardless of the number of contactsinvolved. &#39; &#39;

C. "Undercover Employee� means any employee of the FBI, oremployee of a Federal, 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" means a sole proprietorship, partnership,corporation, or other business entity operated on_a commercialbasis, which is owned, controlled, or operated wholly or in parton behalf of the FBI, and whose relationship with the FBI isconcealed from third parties.

B. �Appropriate Federal Prosecutor� means a United StatesAttorney or Section Chief in the Criminal Division of theDepartment of Justice DOJ!.

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III. GENERAL AUTHORITY &#39;

The FBI may use undercover activities and conduct undercoveroperations, pursuant to these Guidelines, that are appropriate tocarry out its law enforcement responsibilities. These guidelinesdo not apply to investigations utilizing confidential informants,cooperating witnesses or cooperating subjects, unless theinvestigation also utilizes an undercover employee. The FBI,through the development of internal policy, may choose to applythese Guidelines to certain confidential informant, cooperatingwitness, and cooperating subject operations by referring suchmatters to the Undercover Review Committee pursuant to SectionIV, Paragraph D!�!.

Under this authority, the FBI may participate in jointundercover activities with other law enforcement agencies and mayoperate a proprietary to the extent necessary to maintain anoperation&#39;s cover or effectiveness. All joint undercoveroperations are to be conducted pursuant to these Guidelines.IV. AUTHORIZATION OF UNDERCOVER OPERATIONS I

A. General Approval Standards: Any official consideringapproval or authorization of a proposed undercover applicationshall weigh the risks and benefits of the operation, givingcareful consideration to the following factors:

�! The risk of personal injury to individuals,property damage, financial loss to persons orbusinesses, damage to reputation, or other harm topersons;

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

�! The risk of invasion of privacy or interferencewith privileged or confidential relationships;

�! The risk that individuals engaged in undercoveroperations may become involved in illegal conductrestricted in paragraph IV.H. below: and

�! The suitability of Government participation in thetype of activity that is expected to occur during theoperation. B

B. Undercover Operations Which Hay be Authorized by theSpecial Agent in Charge SAC!

�! The establishment, extension, or renewal of allundercover operations to be supervised by a given fieldoffice must be approved by the SAC. Tf the undercoveroperation does not involve any of the factors listed inparagraph IV.C. below, this approval shall constitute

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

a! Initiation of investigative activityregarding the alleged criminal conduct or criminalenterprise is warranted under any applicabledepartmental guidelines; "

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

c! The undercover operation will be conductedwith minimal intrusion consistent with the need tocollect the evidence or information in a timelyand effective manner;

d! Approval for the use of any informant orconfidential source has been obtained as requiredby the Attorney Genera1&#39;s Guidelines on Use ofInformants and Confidential Sources;

e! Any foreseeable participation by anundercover employee in illegal activity that canbe approved by the SAC on his or her own authorityis justified by the factors noted in paragraph H;

f! If there is no present expectation of theoccurrence of any of the sensitive or fiscalcircumstances 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 of no more than one year. Undercover operationsinitiated pursuant to this subsection may not involvethe expenditure of more than $40,000 $100,000 in drugcases of which a maximum of $40,000 is for operationalexpenses!, or such other amount that is set from timeto time by the Director, without approval from FBIHeadquarters FBIHQ!.

�! The SAC may delegate the responsibility toauthorize the establishment, extension, or renewal ofundercover operations to designated Assistant SpecialAgents in Charge. The delegation of this ~responsibility by the SAC should be in writing and

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maintained in the appropriate field office. However,all undercover operations which must be authorized atFBIHQ must be approved by the SAC. &#39;

�! 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 anapplication 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 designatedDeputy 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 -- &#39;

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

buildings or facilities; or prepayment ofmore than one month&#39;s rent;

NOTE: The purchase, rental, or lease of property usingan assumed name or cover identity to facilitate aphysical or technical surveillance is not an undercoveroperation for purposes of these Guidelines. However,since the expenditure of appropriated funds isinvolved, 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 by theFBI&#39;s Legal Counsel Division!: or

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

Director for operations initiated at the fieldoffice level.

�! Sensitive Circumstances

In all undercover operations involving any sensitivecircumstances listed below, the SAC shall submit anapplication to FBIHQ in accordance with paragraph Fbelow. The application shall be reviewed by &#39;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 of these 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 trustin a Federal, state, or local governmental entityor political subdivision thereof;

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

c! an investigation of possible criminal conductby any foreign official or government, religiousorganization, political organization, or the newsmedia;

NOTE: There are some circumstances involving officialsin judicial, legislative, management, or executive-level positions which may logically be considerednonsensitive. In such instances, the Section Chief, &#39;White-Collar Crimes Section, FBIHQ, who is a member ofthe Criminal Undercover Operations Review Committee andhas a national perspective on matters involving public

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officials, must be consulted for a determination as towhether the undercover operation should be presented tothe Undercover Review Cbmmittee. _

d! Engaging in activity having a significanteffect on or constituting a significant intrusioninto the legitimate operation of a Federal, state,or local governmental entity; &#39;

e! Establishing, acquiring, or using aproprietary:

f! Providing goods or services which areessential to the commission of a crime, whichgoods and services are reasonably unavailable to asubject of the investigation except from theGovernment:

g! Activity that is proscribed by Federal,state, or local law as a felony or that is"~otherwise a serious crime -- but not including thepurchase of stolen or contraband goods; thedelivery or sale by the Government of stolenproperty whose ownership cannot be determined; thecontrolled delivery of drugs which will not entercommerce; the payments of bribes which are notincluded in the other sensitive circumstances; orthe making of false representations to thirdparties in concealment of personal identity or thetrue ownership of a proprietary this exemptiondoes not include any statement under oath or thepenalties of perjury!. See Paragraph H below!;

NOTE: Some of the above activities, including thecontrolled delivery of drugs and bribe payments, aresubject to specific review and approval procedures.These matters must be coordinated with FBIHQ.

h! A significant risk that a personparticipating in an undercover operation will bearrested or will supply falsely sworn testimony orfalse documentation in any legal or administrativeproceeding See paragraph H below!;

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

j! A significant risk that a third party willenter into a professional or confidentialrelationship with a person participating in anundercover operation who is acting as an attorney,physician, clergyman, or member of the news media;

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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 aprofessional or confidential relationship;

�! Participation in the activities of a groupunder investigation as part of a Domestic SecurityInvestigation or recruiting a person from withinsuch a group as an informant;

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

n! Activities which could result in significantclaims against the United States arising in 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&#39;s knowledgeor consent.

D. Criminal Undercover Operations Review Committeei j�ndercover Review Committee!

�! The Undercover Review Committee shall consist of

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

�! When an application from an SAC 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 that are 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 arecommendation for approval of a proposedoperation because of legal, ethical, prosecutive,or departmental policy considerations, thedesignee 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, recommendationor comment, regardless of whether an undercoveroperation is involved.

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

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

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set by the Criminal Undercover operations ReviewCommittee regarding the approval of an undercoveroperation, they may consult with the chairman of theCriminal Undercover Operations Review Committee who mayschedule 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 appeal any Headquartersdecision directly to the Assistant Director. Likewise,the United States Attorney can appeal directly to theAssistant Attorney General, Criminal Division, or theDeputy Attorney General as appropriate.

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

A designated Assistant Director may approve an undercoveroperation considered by the Undercover Review Committee, unlessthe investigation involves sensitive circumstances l!»or m!.Except pursuant to the limited circumstances described in SectionI below, only the Director, Deputy Director, or Associate DeputyDirector�Investigations may approve a proposed operation if areasonable expectation exists that:

�! The undercover operation will be used toparticipate in the activities of a group under .investigation as part of a Domestic SecurityInvestigation or to recruit a person from within such agroup as an informant or confidential source SensitiveCircumstance �!!;

�! There may be a 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 FBIHQ must be made for anyundercover operation requiring FBIHQ approval. Eachapplication shall include:

a! The written SAC approval described in B�!above:

b! A description of the proposed operation andthe particular cover to be employed; any &#39;informants or other cooperating persons who willassist in the operation, including backgroundinformation, arrest record, and plea agreements;the particular offense or criminal enterpriseunder investigation; and any individuals known tobe involved;

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c! A statement&#39;of the period of time for whichthe operation would be maintained: y

d! A description of how the requirementsconcerning 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 the undercover operationmerits approval in light of the circumstances,including: _.

i! For undercover operations involvingsensitive circumstance g!, a statement whythe participation in otherwise illegalactivity is justified under the requirementsof paragraph H below, and a letter from theappropriate Federal prosecutor pursuant toparagraph F�! b!;

ii! For undercover operations involvingsensitive circumstance l!, a statement whythe infiltration or recruitment is necessaryand a description of procedures to minimizeany acquisition, retention, and disseminationof information that does not relate to thematter under investigation or to otherauthorized 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 the proposal 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 the potentialprosecutive 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 &#39;circumstances are involved, should include a letterfrom the appropriate Federal prosecutor favoring the &#39;extension or renewal of authority.

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Duration of Authorization

�! An undercover&#39;operation approved by FBIHQ may notcontinue longer than is necessary to achieve theobjectives specified in the authorization, nor in anyevent longer than six months, without new authorizationto proceed, except pursuant to subparagraph �! below.

�! If there is significant change in either thedirection or objectives of an undercover operationapproved by FBIHQ, the operation must be reviewed bythe Undercover Review Committee to determine whether anew authorization is necessary.

�! An undercover operation which requires review bythe Undercover Review Committee may be initiated orextended on an interim basis by the designatedAssistant Director in the event of exigentcircumstances, for a period not to exceed 30 days. Inthe case of an initial authorization, budgetenhancement, or change in focus, the interim authoritymust be ratified by the Undercover Review Committee atits next scheduled meeting.

�! An undercover operation initially authorized bythe SAC must be reauthorized by a designated AssistantDirector, pursuant to paragraphs IV.C�F, if it lastslonger than 12 months or involves the expenditure ofmore than $40,000 $100,000 in drug cases of which amaximum of $40,000 is for operational expenses!, orsuch other amount that is set from time to time by theDirector. No undercover operation approved at thefield office level may continue for more than one yearwithout obtaining approval at FBIHQ.

�! An undercover operation approved by an SAC isdeemed to commence on the date approved, Q9; on thedate covert activity is begun.

�! Among the factors to be considered in adetermination by any approving official of whether anundercover operation should be renewed or extended are:

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

b! The potential for future success beyond thatinitially targeted:

c! The extent to which the investigation cancontinue 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 these Guidelines, noundercover employee shall engage in any activity that wouldconstitute a violation 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 isjustified:

a! to obtain information or evidence necessaryfor the success of the investigation and not if;reasonably available without participation in the�otherwise illegal activity; &#39;,

b! to establish or maintain credibility of acover identity: or

c! to prevent death or serious bodily injury,

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

�! Prohibitions: An undercover employee shall not m.

a! participate in any act of violence except in &#39;self-defense; ,

b! initiate or instigate any plan to commitcriminal acts except in accordance with Part V Avoidance 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 self�defense 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

14

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

�! Authorization:

a! The SAC must approve all undercover operationsand activities, including those which contemplateparticipation in otherwise illegal activity. Thisapproval shall constitute authorization of:

i! otherwise illegal activity which is amisdemeanor 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 or sale 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 tothird parties in concealment of personalidentity or the true ownership of a�proprietary 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 Review Committee. See Section IV E!.

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

15

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or anticipated, every effort should be made toconsult with the&#39;SAC, who shall seek emergencyinterim authority from the designated AssistantDirector, and review by the Undercover ReviewCommittee if possible, or, if necessary, mayprovide emergency authorization under paragraph Ibelow. If consultation is impossible, and theundercover employee concludes that there is animmediate and grave threat to life, physicalsafety, or property, the undercover employee mayparticipate in the otherwise illegal activity, solong as he does not take part in and makes everyeffort to prevent any act of violence. A reportto the SAC shall be made as soon as possible, whoshall submit a written report to FBIHQ, whichshall promptly inform the Undercover ReviewCommittee. A decision by an undercover employeeto participate in otherwise illegal activity underthis subsection may be retroactively authorized ifappropriate. &#39;

e! If an undercover operation results in violencein the course of criminal activity, and anundercover employee, informant, or cooperatingwitness has participated in any manner in thecriminal activity, the SAC shall immediately.inform the appropriate Federal prosecutor andFBIHQ, which shall inform the Assistant AttorneyGeneral in charge of the Criminal Division as soonas possible. &#39;

Emergency Authorization

I! In situations which require 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,shall be prepared promptly and forwarded to FBIHQ.

�! Emergency interim authorization procedures are inplace 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 makes even this expeditedprocedure too lengthy, in the following situations, theSAC may authorize the undercover operation:

a! In situations which would otherwise requireapproval by the designated Assistant Director, theSAC may approve an undercover operation when�he orshe determines that without immediate initiation,

16

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extension, or renewal of an operation, life,property, or personal safety of individuals wouldbe placed in serious danger. .

b! In situations which would otherwise requireapproval by the Director or Deputy Director, theSAC may approve an undercover operation when he orshe determines that the initiation, extension, orrenewal of an operation is imperative to protectlife or prevent serious injury.

Before providing authorization in these situations, theSAC shall attempt to consult with the appropriateFederal prosecutor and with a designated AssistantDirector.

�! The power to provide emergency authorizationsunder subparagraph �! may not be delegated pursuant toIV.B�!. 4

�! In situations arising under subparagraph&#39;�!, awritten application for approval must be submitted toFBIHQ within 48 hours after the operation has beeninitiated, extended, or renewed, together with theinitial finding and a written description of theemergency situation. As soon as it is notified of anemergency authorization, FBIHQ shall notify the DOJmembers of the Undercover Review Committee. If thesubsequent written application for approval is denied,a full report of all activity undertaken during thecourse of the operation must be submitted to theDirector, who shall inform the Deputy Attorney General.

V. PROTECTING INNOCENT PARTIES AGAINST ENTRAPIENT

A.

B.

Entrapment &#39;

Entrapment must be scrupulously avoided. Entrapmentoccurs when the Government implants in the mind of aperson who is not otherwise disposed to commit theoffense the disposition to commit the offense and theninduces the commission of that offense in order to

prosecute.

Authorization Requirements

In addition to the legal prohibition on entrapment,additional restrictions limit FBI undercover activityto ensure, insofar as it is possible, that entrapmentissues do not adversely affect criminal prosecutions.As a result, no undercover activity involving aninducement to an individual to engage in crime shall beauthorized unless the approving official is satisfiedthat --

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

�! The nature of any inducement offered isjustifiable 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 engage in 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 by law, are imposed to ensure thatthe Government does not offer inducements to engage incrime to persons who are not predisposed to do so.These standards can be waived only by the Director upona written finding that the activities are necessary toprotect life or prevent other serious harm.

»

VI HONITORING AND CONTROL OF UNDERCOVER OPERATIONS

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 that may be necessary 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 shall be instructed thathe or she shall not participate in any act of violence;initiate or instigate any plan to commit criminal acts;

18 O O

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use unlawful investigative techniques to obtaininformation or evidence; or engage in any conduct thatwould violate restrictions on investigative techniquesor FBI conduct contained in the Attorney Genera1&#39;sGuidelines or departmental policy; and that, except inan emergency situation as set out in paragraphIV.H.�! d!, he or she shall not participate in anyillegal activity for which authorization has not beenobtained under these Guidelines. The undercoveremployee shall be instructed in the law of entrapment.When an undercover employee learns that persons underinvestigation intend to commit a violent crime, he orshe shall try to discourage the violence.Review of_gggduct

From time to time, during the course of the undercoveroperation, the SAC shall review the conduct of theundercover employee s! and others participating in theundercover operation, including any proposed orreasonable foreseeable conduct for the remainder of theinvestigation. Any findings of impermissible conductshall be discussed with the individual, promptlyreported to the designated Assistant Director and themembers of the Undercover Review Committee, and_adetermination shall be made as to whether theindividual should continue his or her participation inthe investigation.

Continuing Consultation with the Appropriate FederalProsecutor

Upon initiating and throughout the course of_anyundercover operation, the SAC or a designatedSupervisory Special Agent shall&#39;consult on a continuingbasis with the appropriate Federal prosecutor,particularly with respect to the propriety of theoperation and the legal sufficiency and quality ofevidence that is being produced by the activity.Serious Legal, Ethical,_Prosecutive, or DepartmentalPolicy Questions, and Previously Unforeseen SensitiveCircumstances

�! The SAC shall consult with the chairman of the-Criminal Undercover Operations Review Committee, FBIHQwhenever a serious legal, ethical, prosecutive, ordepartmental policy question arises in any undercoveroperation or if sensitive circumstances occur that werenot anticipated. The FBI shall consult with the UnitedStates Attorney, or Assistant Attorney General, ortheir representative, and with DOJ members of theUndercover Review Committee on whether to modify,

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suspend, or terminate the investigation related to suchissues.

�! When unforeseen sensitive circumstances arise,SAC shall submit a written application to FBIHQ forauthorization of an undercover operation previouslyapproved 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 afile of all applications for approval of undercoveroperations submitted to it, together with a writtenrecord of the Committee&#39;s action on the applicationany ultimate disposition by the approving official.The FBI shall also prepare a short summary of eachundercover operation recommended for approval by the

and

Committee. These records 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 a writtenreport summarizing:

a! the types of undercover operations approvedand disapproved together with the reasons fordisapproval;

b! the major issues addressed by 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

As soon as the proceeds from any undercover operationare no longer necessary for the conduct of theactivity, the remaining proceeds shall be deposited in»the Treasury of the United States as miscellaneousreceipts. A

Whenever a proprietary with a_net value 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

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shall report the circumstances to the Attorney Generaland the Comptroller General. The proceeds of theliquidation, sale, or the disposition, after _obligations are met, shall be deposited in the Treasuryof the United States as miscellaneous receipts.

RBSERVLTIQ§_

These Guidelines are set forth solely for the purpose ofinternal DOJ guidance. They are not intended to, do not,and may not be relied upon to create any rights, substantiveor procedural, enforceable by law by any party in anymatter, civil or criminal, nor do they place any limitationson otherwise lawful investigative or litigative prerogativesof the Department of Justice.

- 21

FEDERAL BUREAU OF INVESTIGATION

FREEDOM OF INFORIVIATION/PRIVACY ACTS SECTION

COVER SHEET

SUBJECT: GUIDELINES ON UNDERCOVER

OPERATIONS

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Iv. Dffirr nf Ihr Altnrnrg �vnvral�I, Eashingtnnll. C. 211530

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ATTQB§£Y ctntnaigs GUIDELINES on£51 unbsncovtk OPERATIONS C

The following guidelines on use of undercover operationsby the Federal Bureau of Investigation are issued underauthority of the Attorney General as provided in 28 U.S.C.509, 510, and 533. They are consistent with the requirementsof the proposed FBI Charter Act, but do not depend uponpassage of the Act for their effectiveness.INTRODUCTION u

DEFINITIONS

GENERAL AUTHORITY

AUTHORIZATION OF UNDERCOVER OPERATIONS

A. Undercover Operations that May Not be Approvedby the Special Agent in Charge because of FiscalCircumstances

B. Undercover Operations that May Not be Approved bythe Special Agent in Charge Because of SensitiveCircumstances --

C. Undercover Operations that May be Approved bythe Special Agent in Charge

D. Approval by Headquarters Undercover OperationsReview Committee, and Director or DesignatedAssistant Director!, with Concurrence of UnitedStates Attorney or Strike Force Chief, WhereSensitive or Fiscal Circumstances Are Present

E. Applications to Headquarters�

F. Undercover Operations Review Committee

G. Approval by Director or Deisgnated AssistantDirector

H. Duration of Authorizations

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I. Authorization of Participation In "OtherwiseIllegal" Activity &#39;

J.� Authorization of the Creation of Opportunitiesfor Illegal Activity &#39;

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

MONITORING AND CONTROL OF UNDERCOVER OPERATIONS

L. Continuing Consultation with United StatesAttorney or Strike Force Chief

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

N. Emergency Authorization

O. Annual Report of Undercover Operations Review.�Committee

P. Preparation of Undercover Employees

Q. Review of Undercover Employee Conduct

R. Deposit of Proceeds; Liquidation of Proprietaries

RESERVATION

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INTRODUCTION

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The FBI&#39;s use of undercover employees and operation ofproprietary business entities is a lawful.and essential techniquein 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 conduct are open to question,and so should be carefully considered and monitored.

DEFII2 * "-IlIOJS

An "undercover employee," under these guidelines, is anyemployee of the FBI -- or employee of a federal, state or locallaw enforcement agency working under the direction andmcontrolof the FBI in a particular investigation -- whose relationshipwith the FBI is concealed from third parties in the course of aninvestigative operation by the maintenance of a cover or aliasidentity. &#39;

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

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

GENERAL AUTHORITY

l! The FBI may conduct undercover operations, pursuant tothese guidelines, that are appropriate to carry out its investigativeresponsibilities in domestic law enforcement.

Under this authority, the FBI may participate in jointundercover operations with other federal, state, and local lawenforcement agencies; may seek operational assistance for anundercover operation from any suitable informant, confidentialsource, or other cooperating private individual; and may operatea proprietary on a commercial basis to the extent necessary tomaintain an operation&#39;s cover or effectiveness.

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

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authorized only at theSecurity Investigations.

AUTHORIZATION OF UNDERCOVER OPERATIONS &#39;

All undercover operations under these guidelines fall into fone of two categories: l! those undercover operations that canbe approved by the Special Agent in Charge SAC! under his ownauthority, and �! those undercover operations that can only be.authorized by the Director or designated Assistant Director,upon favorable recommendations by the SAC, Bureau headquarters FBIHQ!, and the Undercover Operations Review Comi�tee, Under-cover operations in the latter category are those that involve asubstantial expenditure of government funds, or otherwise implicatefiscal policies and considerations. Paragraph A!. Also includedin this latter category are undercover operations that involvewhat are termed "sensitive circumstances." In general, theseare undercover operations involving investigation of publiccorruption, or undercover operations that involve risks ofvarious forms of harm and intrusion. Paragraph B!. Of course,in planning an undercover operation, these risks of harm andintrusion will be avoided whenever possible, consistent with theneed to obtain necessary evidence in a timely and effectivemanner.

A. Undercover Operations that May Not be Approved by theSpecial Agent in Charge because of Fiscal Circumstances�! Subject to the emergency authorization procedures set

forth in paragraph N, the SAC may not authorize the establishment,extension or renewal of an undercover operation if there is areasonable expectation that: &#39;

a! The undercover operation could result in significantcivil claims against the United States, either arising

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

b! The undercover operation will require leasingor contracting for property, supplies, services,equipment, or facilities for any period extendingbeyond the September 30 termination date of thethen current fiscal year, or with prepayment ofmore than one month&#39;s rent; or will require leasingany facilities in the District of Columbia;

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

� d!

E!

f!

g!

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The undercover operation will requirethe deposit of.appropriated funds, or ofPT°¢eed$ Eeneraied by the undercover operation.in banks or other financial institutions;

The undercover operation will involveuse of proceeds generated by the undercoveroperation to offset necessary and reasonableexpenses of the operation;

The undercover operation will requireindemnification agreements for losses incurredin aid of the operation, or will require expentures in excess of $1500 for property, supplieservices, equipment or facilities for theconstruction or alteration of facilities;

di-

5.

The undercover operation will last longerthan 6 months or will involve an expenditurein excess of $20,000 or such other amount thatis set from time to time by the Director, withthe approval of the Attorney General. Howeverthis expenditure limitation shall not applywhere a significant and unanticipated investiga-tive opportunity would be lost by compliance withthe procedures set forth in paragraphs D, L, F,and G.

B. Undercover Operations that May not be Approved by theSpecial Agent in Charge Because of Sensitive Circumstances

Subjectin paragraphextension or

to the emergency authorization procedures set forthN, the SAC may not authorize the establishment,renewal of an undercover operation that involves

sensitive circumstances.� For purposes of these guidelines, anundercover opis a reasonab

a!

eration involves sensitive circumstances if therele expectation that;

The undercover operation will concernan investigation of possible corruptaction by a public official or politicalcandidate, the activities of a foreigngovernment, the activities of a religiousor political organization, or the activitiesof the news media;

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F!

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

An undercover employee or cooperating privateindividual will engage in any activity thatis proscribed by federal, state, or locallaw as a felony or that is otherwise aserious crime -- except this shall notinclude criminal liability for the purchaseof stolen or contraband goods or for themaking of false representations to thirdparties in concealment of personal identityor the true ownership of a proprietary;

An undercover employee or cooperating privateindividual will seek to supply an item orservice that would be reasonably unavailableto criminal actors but for the participationof the government;

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

An undc-rcnvc-r c-nwployce or COOP �T�fl�§&#39;_private individual will be required Lugive sworn testimony in any proceedingin an undercover capacity;

An undercover employee or cooperatingprivate individual will attend a meetingbetween a subject of the investigationand his lawyer;

An undercover employee or cooperatingprivate individual will pose as an attorney,physician, clergyman, or member of the newsmedia, and there is a significant risk thatanother individual will be led into aprofessional or confidential relationshipwith the undercover employee or cooperatingprivate individual as a result of the pose;

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

- 5 -

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 investigationas part of a Domestic Security Investigation,or to recruit a person from within such agroup as an 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 facts and circumstances, that:

a! Initiation of investigative activity regardingthe alleged criminal conduct or criminalenterprise is warranted under the AttorneyGeneral&#39;s Guidelines on the Investigation of &#39;General Crimes, the Attorney General�sGuidelines on Domestic Security Investigations,the Attorney General&#39;s Guidelines on Investigationof Criminal Enterprises Engaged in RacketeeringActivity, and any other applicable guidelines;

b! The proposed undercover operation appearsto be an effective means of obtainingevidence or necessary information; thisshould include a statement of what priorinvestigation 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 ,need to 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&#39;sGuidelines on Use of Informants and

Confidential Sources;

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

f! Any foreseeable participation by an undercover. 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!, with�Conrurrence 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, orrenewal of an undercover operation if there is a reasonableexpectation that any of the circumstances listed in paragraphsA and B may occur. .

In such cases, the SAC shall first make application toFBI Headquarters FBIHQ!. See paragraph E below. FBIHQ mayeither disapprove the application or recommend that it beapproved. 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 allother 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 recommendingapproval of the establishment, extension, or renewal of an under-cover operation involving circumstances listed in paragraphs Aand B shall be made in writing and shall include, with supportingfacts and circumstances:

a!

b!

C!

A description of the proposed undercoveroperation, including the particular coverto be 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 a statement of theperiod 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 specifiedin paragraphs A and B are reasonablyexpected to occur, what the operative factsare likely to be, and why the undercoveroperation merits approval in light of thecircumstances, including,

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for any foreseeable participation byan undcrcovcr employee or cooperatingprivate individual in activity that isproscribed by federal, state, or locallaw as a felony or that is otherwise aserious crime �- but not including thepurchase of stolen or contraband goodsor making of false representations tothird parties in concealment of personalidentity or the true ownership of aproprietary -- a statement why theparticipation is justified by the factorsnoted in paragraph 1�!, and a statementof the federal prosecutor&#39;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

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such a group as an informant, a statementwhy the infiltration or recruitment isnecessary and meets the requirements ofthe Attorney General&#39;s Guidelines onDomestic Security Investigations; anda description of procedures to minimizeany acquisition, retention, anddissemination of information that does notrelate to the matter under investigationor to any other authorized investigativeactivity.

- d! A statement of proposed expenses;

e! A statement 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 highly unusual 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 other Department 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 shall include astatement 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 the Undercover OperationsReview Committee is otherwise required, and upon the approvalof the Assistant Attorney General in charge of the CriminalDivision.

�! An application for the extension or renewal ofauthority to engage in an undercover operation should alsodescribe the results so far obtained from the operation or areasonable explanation of any failure to obtain significantresults, and a statement that the 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&#39;attorneys of the 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&#39;s application 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 shallcarefully 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 liabilityor 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 Jbelow; 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

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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 operationinvolving sensitive circumstances, the recomendation shallinclude a brief written statement explaining why the undercoveroperation merits approval in light of the anticipated occurrenceof such sensitive circumstances.

�! The Committee shall recommend approval of an under-cover operation only upon reaching a consensus, provided that:

a! If one or more of the designees of theAssistant Attorney General in charge ofthe Criminal Division does not join ina recommendation for approval of a proposedundercover 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 the opportunity 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 referthe matter to 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 a proposed 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:

&#39; 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 a personfrom within such a group as an informant orconfidential source, in which case the Director&#39;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 orAttorney 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 aSAC must be reauthorized by an Assistant Director or theDirector, 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 would constitute a crime under state orfederal law if engaged in by�a private person acting withoutthe approval or authorization of an appropriate governmentofficial. For purposes of this paragraph, such activity isreferred to as "otherwise illegal" activity.

&#39; �! No official shall recommend or approve an undercover�employee&#39;s or cooperating private individual&#39;s planned orreasonably foreseeable participation in otherwise illegalactivity unless the participation is justified in order:

I C- 12 -

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

b! to establish and maintain credibility orcover with persons associated with thecriminal activity under investigation; or

c! to prevent 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 be approved inadvance by an Assistant Director on the recommendation ofthe Undercover Operations Review Committee pursuant toparagraphs D�G, except that the Director&#39;s approval is~required for participation in any otherwise illegal activityinvolving a significant risk of violence or physical injuryto individuals. Approvals shall be recorded 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 the purchase of stolen or contrabandgoods, or in a nonserious misdemeanor, must be approved inadvance by the Special Agent in Charge. Approvals by 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 foreseen or anticipated, anundercover employee should make every effort to 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 life or physicalsafety including destruction�of property through arson orbombing!. an undercover employee may participate in the otherwiseillegal activity so long as he does not take part in and makesevery effort to prevent any act of violence. A report to the SACshall 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 these guidelines 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 proprietary e.g., false statements in obtaining driver&#39;s licenses, vehicleregistrations, 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 anemergency 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 a criminal 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 legal requirements,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 that theundercover 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 even though there is no reasonable 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 the Director, unless theUndercover Operations Review Committee determines See paragraphF!, insofar as practicable, that &#39; &#39;either

a! there is a reasonable indication, basedon information developed through informantsor 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 there is reason forbelieving that persons drawn to the opportu-nity, or brought to it, are predisposed to engagein the contemplated illegal activity.

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

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

Notwithstanding any other provision of these guidelines,routine investigative interviews that are not part of anundercover operation may-be conducted without the authorizationof FBIHQ, and without 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 investigative interview involving a sensitivecircumstance -- even an interview that is not conducted aspart 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 likely to involve one of the circumstances listed inparagraphs A and B and either a! The SAC&#39;s application to FBIHQdid not contemplate the occurrence of that circumstance, 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 anamendment of the existing application to Headquarters pursuant toparagraph B.

Whenever such a new 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 a fleeingoffender, 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 an undercover operation if a written 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, a full 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&#39;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. These records 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, a written 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&#39;sparticipation in an investigation, the conduct that theundercover employee is expected to undertake and otherconduct 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 be instructed generally,and in relation to the proposed undercovev operation thathe shall not participate in any act of violence; initiate

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or instigate any plan toinvestigative techniques

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commit criminal acts; use unlawful �

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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 an emergency situation, he shall not participatein any illegal activity for which authorization has not beenobtained under these guidelines. when the FBI learns thatpersons under investigation intend to commit a violentcrime, 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. &#39;

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 conduct of the undercover employee,as well as the employee&#39;s proposed or reasonably foreseeableconduct for the remainder of the investigation, and shallmake a determination whether the conduct of the employee hasbeen permissible. This determination shall be communicatedto 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,shall be submitted to the SAC or designated supervisoryagent at the conclusion of the undercover operation. Awritten report on participation in any other activityproscribed by federal, state or 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

&#39; 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 in the Treasuryof the United States as receipts.

RESERVATION

These guidelines on the use of undercover operationsare set forth solely for the purpose of internal Departmentof Justice guidance. They are not intended to, do not, andmay not he relied upon to, create any rights, 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___. {>_,,.4.£,,.Benjénin R. Civiletti

Attorney General

_/ /Date: I�

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