In this chapter we discuss the role of confidential informants in FBI investigations and the rewards and risks associated with their operation. We also describe the requirements of the Confidential Informant Guidelines and the May 2002 revisions to the Guidelines. We then describe the results of our compliance review of informant files in 12 FBI field offices. Finally, we provide our analysis and recommendations based on those findings, our surveys and interviews, and the results of more than 40 FBI Inspection Division audits of field office Criminal Informant Programs.
- Role of Confidential Informants
- The Benefits and Risks of Using Confidential Informants in FBI Investigations
- no more than [SENSITIVE INFORMATION REDACTED] "high level" confidential informants, defined as those "who are part of the senior leadership of an enterprise that has a national or international sphere of activities" or "high significance to the [FBI's] objectives, even if the enterprise's sphere of activities is local or regional;"162
- approximately [SENSITIVE INFORMATION REDACTED] "long-term" confidential informants, defined as those who have been registered for more than 6 consecutive years;163 and
- [SENSITIVE INFORMATION REDACTED] "privileged" informants (e.g., attorneys, clergy, or physicians) or media-affiliated informants.
- A 3-year grand jury investigation into organized crime, drug trafficking, and illegal gambling resulted in the dismantlement of a criminal enterprise and the conviction of a career criminal and five of his criminal associates on racketeering, drug trafficking, money laundering, and illegal gambling charges. Seventeen RICO predicate crimes were charged in the indictment, including extortion, witness tampering, obstruction of justice, and mail fraud. The prosecution also led to the forfeiture of $500,000. The success of the grand jury investigation and the resulting prosecution was attributed in significant part to leads and information provided by FBI confidential informants.
- FBI confidential informants provided information to investigators which permitted them to identify appropriate targets for the investigation of three violent gangs in a northeastern city. The investigation resulted in 35 cases involving charges against a total of 54 gang members over a 5-year period. According to the FBI, the succession of prosecutions was instrumental in bringing about a dramatic reduction in acts of violence in that city.
- An FBI confidential informant played a crucial role in a 2-year undercover investigation by participating in over 1,000 consensually monitored conversations. The consensual monitorings lead to the indictment of four Houston City Council members, a Houston Port Authority Commissioner, and a lobbyist. The confidential informant, later a cooperating witness, testified in three lengthy trials that resulted in the conviction of a city council member and the Port Authority Commissioner.
- 2 Yemeni citizens, Mohammed Al Hasan Al-Moayad and Mohammed Mohsen Yahya Zayed, were arrested in January 2003 in Frankfurt, Germany based on criminal complaints issued in Brooklyn, New York. They were charged with conspiring to provide material support to the Al Qaeda and Hamas terrorist groups. According to the complaint, an FBI confidential informant met with Al-Moayad in January 2002 and was told by Al-Moayad in subsequent conversations that he regularly provided money to support Mujahideen fighters in Afghanistan, Chechnya, and Kashmir. According to the confidential informant, Al-Moayad also stated during this and other conversations that he had supplied Al Qaeda with arms and communication equipment in the past, delivering more than $20 million to Al Qaeda prior to September 11, 2001. Al-Moayad also boasted of several meetings with Usama bin Laden and said he personally delivered the $20 million to bin Laden with much of the money coming from contributors in the United States, including Brooklyn.165
- the informants' handler and supervisors failed to fully inform the FBI Director as to why Bulger and Flemmi had been closed as FBI informants;
- Flemmi's FBI handler failed to tell Flemmi that he was no longer an active FBI informant; during the 3-year period when he was administratively closed, the handler had over 40 contacts with him;
- contrary to FBI policy requiring the SAC to consult personally with the U.S. Attorney as to whether to authorize extraordinary criminal activity involving a "serious risk of violence" and to review all such criminal activity at least every 90 days, the SAC delegated this responsibility to the informant's handler and his immediate supervisor;
- the FBI "ignored the essential point of the Attorney General's Guidelines, which required consultation with the Assistant Attorney General for the Criminal Division when the FBI learns that an informant has engaged in criminal activity but wishes to continue to utilize the informant rather than share the pertinent information concerning the illegal activity with another law enforcement agency;" and
- an Assistant Special Agent in Charge in the Boston field office only considered the informant's productivity and failed to weigh critical factors in considering the informant's suitability, including the nature of the matter under investigation and the importance of the information being furnished as compared to the seriousness of past and contemporaneous criminal activity of which the informant may be suspected, or how closely the FBI would be able to monitor his activities acting on behalf of the FBI.
- Manning v. Miller, 355 F.3d 1028 (7th Cir. 2004), in which the court affirmed the denial of summary judgment requested by two FBI agents in a Bivens action where an informant convicted of murder and kidnapping claimed that FBI agents had framed him. In January 2005, a jury awarded a $6.6 million judgment in favor of the informant.
- Perri v. United States, 53 Fed. Cl. 381 (2002), in which a former FBI informant claimed unsuccessfully that the United States breached a promise to pay him 25 percent of any sums forfeited in an investigation in which he assisted.
- McIntyre v. United States, 254 F. Supp. 2d 183 (D. Mass. 2003), and Castucci Estate, 311 F. Supp. 2d 184 (D. Mass. 2004), examples of a group of approximately 20 cases in the District of Massachusetts seeking damages for the actions of FBI informants Whitey Bulger and Stephen Flemmi alleging that murder, extortion, and other crimes of violence were committed at FBI direction or acquiescence.
- Significant Requirements of the Guidelines
- whether the person is a public official, law enforcement officer, union official, employee of a financial institution or school, member of the military services, a representative or affiliate of the media, or a party to, or in a position to be a party to, privileged communications (e.g., a member of the clergy, a physician, or a lawyer);
- the extent to which the person would make use of his or her affiliations with legitimate organizations in order to provide information or assistance to the [FBI], and the ability of the [FBI] to ensure that the person's information or assistance is limited to criminal matters;
- the extent to which the person's information or assistance would be relevant to a present or potential investigation or prosecution and the importance of such investigation or prosecution;
- the nature of any relationship between the CI and the subject or target of an existing or potential investigation or prosecution, including but not limited to a current or former spousal relationship or other family tie, and any current or former employment or financial relationship;
- the person's motivation in providing information or assistance, including any consideration sought from the government for this assistance;
- the risk that the person might adversely affect a present or potential investigation or prosecution;
- the extent to which the person's information or assistance can be corroborated;
- the person's reliability and truthfulness;
- the person's prior record as a witness in any proceeding;
- whether the person has a criminal history, is reasonably believed to be the subject or target of a pending criminal investigation, is under arrest, or has been charged in a pending prosecution;
- whether the person is reasonably believed to pose a danger to the public or other criminal threat, or is reasonably believed to pose a risk of flight;
- whether the person is a substance abuser or has a history of substance abuse;
- whether the person is a relative of an employee of any law enforcement agency;
- the risk of physical harm that may occur to the person or his or her immediate family or close associates as a result of providing information or assistance to the [FBI]; and
- the record of the [FBI] and the record of any other law enforcement agency (if available to the FBI) regarding the person's prior or current service as a CI, Cooperating Defendant/Witness, or Source of Information, including, but not limited to, any information regarding whether the person was at any time terminated for cause.
- a photograph of the CI;
- the [FBI's] efforts to establish the CI's true identity;
- the results of a criminal history check for the CI;
- the Initial Suitability Report and Recommendation;
- any promises or benefits, and the terms of such promises or benefits, that are given a CI by the [FBI] or any other law enforcement agency, if available to the [FBI];
- any promises or benefits, and the terms of such promises or benefits, that are given a CI by a federal prosecuting office or any state or local prosecuting office, if available to the [FBI]; and
- all information that is required to be documented in the CI's files pursuant to the CI Guidelines.
- information provided by the CI to the FBI must be truthful;
- the CI's assistance and the information provided are entirely voluntary;
- the United States Government will strive to protect the CI's identity but cannot guarantee that it will not be divulged;
- the CI must abide by the instructions of the [FBI] and must not take or seek to take any independent action on behalf of the United States Government;
- the CI is not an employee of the United States Government and may not represent himself or herself as such;
- the CI may not enter into any contract or incur any obligation on behalf of the United States Government, except as specifically instructed and approved by the [FBI];
- the [FBI] cannot guarantee any rewards, payments, or other compensation to the CI; and
- in the event that the CI receives any rewards, payments, or other compensation from the [FBI], the CI is liable for any taxes that may be owed.
- the FBI on its own cannot promise or agree to any immunity from prosecution or other consideration by a Federal Prosecutor's Office or a Court in exchange for the CI's cooperation, since the decision to confer any such benefit lies within the exclusive discretion of the Federal Prosecutor's Office and the Court. However, the FBI will consider, but not necessarily act upon, a request by the CI to advise the appropriate Federal Prosecutor's Office or Court of the nature and extent of his or her assistance to the FBI;
- the CI has not been authorized to engage in any criminal activity and has no immunity from prosecution for any unauthorized criminal activity; and
- no promises or commitments can be made, except by the Department of Homeland Security, regarding the alien status of any person or the right of any person to enter or remain in the United States.
- Authority to Engage in Otherwise Illegal Activity (OIA)
- is necessary either to
- obtain information or evidence essential for the success of an investigation that is not reasonably available without such authorization, or
- prevent death, serious bodily injury, or significant damage to property, and
- that in either case the benefits to be obtained from the CI's participation in the Tier 1 or Tier 2 OIA outweigh the risks.181
- Unauthorized Illegal Activity (UIA)
- On March 3, 1992, Scarpa was closed as an informant after the ASAC of the Criminal Division of the New York FBI Division, Donald North, "found credible allegations that Scarpa was involved in planning violent criminal activity." In informal conversations with North, DeVecchio was allegedly "adamant" that Scarpa was not involved in violent activity. In early April 1992, DeVecchio initiated the process of having Scarpa re-opened, and the FBI granted authority to re-open Scarpa on April 8, 1992, pending completion of a suitability inquiry. On April 22, 1992, DeVecchio notified FBI Headquarters that such an inquiry had been conducted and that Scarpa was deemed suitable.
- During the summer of 1992, Special Agent Christopher Favo, who was working with DeVecchio during the investigation, became strongly suspicious of DeVecchio. Believing that DeVecchio was engaged in misconduct and fearing that he might disrupt current investigations, Favo began to withhold information from DeVecchio pertaining to Scarpa. Other subordinates of DeVecchio's suspected that Scarpa was a murderer, but none of them reported their suspicions about Scarpa or DeVecchio to superiors or to the United States Attorney despite the fact that the Informant Guidelines required agents to report any knowledge of an informant committing violent crimes.
- Scarpa was arrested by the New York City Police in August 1992 on a firearms charge. Shortly thereafter, a federal indictment charging Scarpa with the commission of the three murders, among other crimes, was handed down. Scarpa was released on bail under strict house confinement as one of the conditions of release because of failing health. In late December 1992, his bail was revoked because of his involvement in a shooting. Scarpa was sentenced to ten years in prison in December 1993 after pleading guilty to two counts of murder.
- In January 1994, Favo and other agents approached ASAC North to report their concerns about DeVecchio's relationship with Scarpa. Consistent with FBI policy, North immediately submitted a report to the FBI's Office of Professional Responsibility (OPR). OPR determined that DeVecchio was appropriately a subject of investigation. In September 1996, the Public Integrity Section determined that prosecution of DeVecchio was not warranted, and the OPR investigation was closed. DeVecchio retired from the FBI in October 1996. Scarpa died in a federal prison in June 1994.
- Deactivation of Confidential Informants
- Major Revisions to the Guidelines
- The OIG Review of the FBI's Compliance with the Confidential Informant Guidelines
- Were the Initial and Continuing Suitability reviews of confidential informants conducted within the required time period and was the required information provided?
- Were the required instructions or cautions given to CIs at registration and periodically thereafter?
- Were applications to permit confidential informants to engage in OIA complete and timely, was the proposed OIA described in sufficient detail, and was the requisite approval obtained from the U.S. Attorney's Office?
- Was unauthorized illegal activity by confidential informants reported when required by the SAC to the U.S. Attorney?
- If confidential informants were deactivated "for cause" or other reasons, was the deactivation appropriately documented; was the informant notified of the deactivation; and, if the informant was authorized to engage in OIA, was the OIA authorization revoked and the revocation documented?
- Initial and Continuing Suitability Reviews
- 15 of the 44 files, or 34 percent, did not contain documentation of at least 1 required suitability factor;
- the most frequently omitted suitability factors were the extent to which the CI's information or assistance could be corroborated (missing in 12 files); the extent to which the CI's information or assistance would be relevant to a present or potential investigation or prosecution and the importance of such an investigation or prosecution (missing in 11 files); and the nature of any relationship between the CI and the subject or target of an existing or potential investigation or prosecution (missing in 11 files);
- at 6 of the 12 field offices we visited, ISR&R field office-generated forms called "ponies" did not require documentation of at least 1 of the required suitability factors.209
- 34 of the 96 files, or 35 percent, did not contain 1 required CSR&R;
- 16 of the 96 files, or 17 percent, did not contain 2 required CSR&Rs; and
- 7 of the 96 files, or 7 percent, did not contain 3 required CSR&Rs.
- 93 of the 120 files, or 78 percent, contained documentation that all required instructions were given and acknowledged;
- all but 1 file contained documentation that the required instructions were given at registration;
- 22 of the 120 files, or 18 percent, did not contain documentation of 1 required annual instruction;
- 3 of the 120 files, or 3 percent, did not contain documentation of 2 required annual instructions;
- 1 file did not contain documentation of 3 annual instructions; and
- 33 of the 120 files, or 28 percent, contained documentation indicating that the instructions were given, but were not timely; on average, the instructions were given 72 days late, and ranged from 4 to 270 days late.212
- Authority to Engage in Otherwise Illegal Activity (OIA)
- "Negotiate for, purchase/receive, and possess narcotics, to include cocaine, heroin, marijuana, and/or ecstasy;"
- "Transport, store, and sell drugs; transport drug money, conduct counter-surveillance, purchase drug paraphernalia, act as a drug broker, facilitate drug purchases, purchase cellular telephones to be utilized by drug traffickers, and general money laundering activities."221
- Unauthorized Illegal Activity (UIA)
- Deactivation of Confidential Informants
- 17 of the 46 files, or 37 percent, contained 1 or more deficiencies;
- there was no documentation in 15 of the 46 files (33 percent) indicating that the CI was notified of the deactivation;
- in one CI file, there was no documentation that the field office coordinated with the Assistant U.S. Attorney assigned to the matter regarding the deactivation; and
- one CI file had no documentation of the deactivation itself.223
- Seeking Approval or Concurrence from, and Providing Notification to, the United States Attorney's Office
- with respect to the FBI's obligation to obtain the U.S. Attorney's advance written approval of Tier 1 OIA, the Criminal Division Chiefs said they were not aware of any circumstance when the FBI failed to comply since May 30, 2002;
- of the 27 percent of surveyed Criminal Division Chiefs who stated that confidential informants had been named in electronic surveillance affidavits in their field offices since May 30, 2002, 88 percent told us that U.S. Attorneys' Offices have been notified in all appropriate cases;
- only 1 Criminal Division Chief cited as a serious concern the FBI's failure to notify the appropriate federal prosecutor of unauthorized illegal activity by confidential informants and failure to share information with the U.S. Attorney's Office about confidential informants' activities in investigations in which the U.S. Attorney's Office is participating; and
- as a group, the Criminal Division Chiefs did not express concerns about receiving timely notice of unauthorized illegal activity by CIs operated in their Districts since May 30, 2002. However, 35 percent stated that the impact of unauthorized illegal activity by CIs has been either a minor or occasional concern since May 30, 2002, while 25 percent reported that notice deficiencies have been either a minor or occasional concern. In addition, 10 percent of the surveyed Criminal Division Chiefs said they believed that FBI agents in their District do not have the same understanding as the U.S. Attorney's Office of the Guidelines' requirement to notify the U.S. Attorney of any unauthorized illegal activity by CIs.224
- inadequate administrative support for the Criminal Informant Program, including the failure to provide standardized forms, a field guide, and Intranet tools;
- failure by executive managers to hold first-line supervisors accountable for compliance deficiencies and to exercise effective oversight of agents operating confidential informants;
- inadequate training at every level (new agents, probationary agents, experienced agents, Confidential Informant Coordinators, Supervisory Special Agents, senior field managers, and key Headquarters personnel), including periodic training on the Guidelines themselves and joint training with the U.S. Attorneys' Offices on appropriate methods to operate confidential informants;
- inadequate support of Confidential Informant Coordinators and assignment of this responsibility as a collateral duty;
- failure to take compliance performance into account in personnel and promotion decisions and policies; and
- lingering differences between the FBI and DOJ over informant issues.
- Inadequate Administrative Support. As has been well documented, the FBI has struggled to upgrade its antiquated computer systems for many years.228 However, we found that a principal reason for the serious compliance deficiencies in the Criminal Informant Program is the FBI's failure to use its currently available automated support tools to enable agents and their supervisors to complete the necessary paperwork for operating their confidential informants on a consistent and timely basis.
- Failure by Executive Managers to Hold First-Line Supervisors Accountable for Compliance Deficiencies and Exercise Effective Oversight of Agents Operating Informants. Headquarters officials, field managers, Informant Coordinators, and Division Counsel we interviewed identified the first-level supervisor as the linchpin to ensuring FBI agents are held accountable for compliance with the Confidential Informant Guidelines. Our review indicated, however, that some field supervisors have failed to identify risks associated with operating informants.
According to the Confidential Informant Guidelines, a confidential informant or "CI" is "any individual who provides useful and credible information to a Justice Law Enforcement Agency (JLEA) regarding felonious criminal activities and from whom the JLEA expects or intends to obtain additional useful and credible information regarding such activities in the future."154 The Guidelines do not apply to the use of confidential informants in foreign intelligence or foreign counterintelligence investigations or to informants operating outside the United States in connection with extraterritorial criminal investigations (unless the informant is likely to be called to testify in a domestic case).155
A confidential informant differs from two other categories of sources. "Cooperating witnesses," or "CWs," differ from CIs in that CWs agree to testify in legal proceedings and typically have written agreements with the Department of Justice (DOJ) (usually with an Assistant U.S. Attorney) that spell out their obligations and their expectations of future judicial or prosecutive consideration. The FBI must obtain the concurrence of the U.S. Attorney's Office with regard to all material aspects of their use by the JLEA.156 "Assets" are sources who assist the FBI in international terrorism, foreign intelligence, or foreign counterintelligence investigations.
Persons who provide information to the FBI but do not fall into one of these specific classifications are referred to generally as "sources of information." A source provides information to a law enforcement agency only as a result of legitimate routine access to information or records. Unlike what is often the case with regard to CIs and CWs, a source does not collect information by means of criminal association with the subjects of an investigation. Under the Guidelines, a source must provide information in a manner consistent with applicable law.157
Confidential informants are often uniquely situated to assist the FBI in its most sensitive investigations. They may be involved in criminal activities or enterprises themselves, may be recruited by the FBI because of their access and status, and, since they will not testify in court, usually can preserve their anonymity.
According to the FBI's Manual of Investigative Operations and Guidelines (MIOG), CIs are classified in each of the following categories: Organized Crime, General Criminal, Domestic Terrorism, White Collar Crime, Confidential Source, Drugs, International Terrorism, Civil Rights, National Infrastructure Protection/Computer Intrusion Program, Cyber Crime, and Major Theft and Violent Gangs.158
Since the inception of the FBI in 1908, informants have played major roles in the investigation and prosecution of a wide variety of federal crimes.159 The FBI's Top Echelon Criminal Informant Program was established in 1961 when FBI Director J. Edgar Hoover instructed all Special Agents in Charge (SACs) to "develop particularly qualified, live sources within the upper echelon of the organized hoodlum element who will be capable of furnishing the quality information" needed to attack organized crime.160 In 1978, the FBI replaced that program with the Criminal Informant Program. Its mission is to develop a cadre of informants who can assist the FBI's investigation of federal crimes and criminal enterprises. Informants have become integral to the success of many FBI investigations of organized crime, public corruption, the drug trade, counterterrorism, and other initiatives.
Directors of the FBI frequently make reference to the value of informants while acknowledging that they present difficult challenges. In a June 1978 article, Director William Webster stated:
Not many people know very much about informants: and to many people, it's a queasy area. People are not comfortable with informants. There is a tradition against snitching in this country.However, the informant is THE with a capital "T" THE most effective tool in law enforcement today - state, local, or federal. We must accept that and deal with it.
* * *
We provide close supervision in the field at the special agent level. We have field and headquarters evaluation of what is going on in respect to our informants. We have inspectors . . . who check each field office to be sure there is compliance with our regulations with respect to the use of informants. And we have the attorney general's guidelines on when, and under what circumstances, we may use informants, and they are scrupulously observed.161 [emphasis added]
When we asked Director Mueller about the value of confidential informants today, he stated:
Human sources are vitally important to our success against terrorists and criminals. They often give us critical intelligence and information we could not obtain in other ways, opening a window into our adversaries' plans and capabilities. Human sources can mean the difference between the FBI preventing an act of terrorism or crime, or reacting to an incident after the fact.
Since the May 2002 revisions to the Investigative Guidelines were issued, the FBI has operated up to [SENSITIVE INFORMATION REDACTED] confidential informants at any one time. Larger field offices may simultaneously operate as many as [SENSITIVE INFORMATION REDACTED] informants, while smaller offices [SENSITIVE INFORMATION REDACTED]. According to the FBI's Human Intelligence Unit (HIU), as of April 30, 2005, the FBI was operating among its informants:
The FBI tracks the productivity of its CIs by aggregating their "statistical accomplishments," i.e., the number of indictments, convictions, search warrants, Title III applications, and other contributions to investigative objectives for which the CI is credited.164
Many, if not most, of the successes of the Criminal Informant Program are not widely known, because unlike the case with a cooperating witness who typically testifies at trial, an informant's identity rarely becomes public. In the course of this review, the FBI provided the following illustrations of cases in which FBI informants played a pivotal role in recent prosecutions.
Offsetting the many benefits that result from the use of confidential informants are the significant risks their use introduces for the United States Government. As Phillip B. Heymann, the former Deputy Attorney General and Assistant Attorney General in charge of the Criminal Division, observed:
[S]ome informants are responsible citizens who report suspected criminal activities without any hope of return. In the middle, other informants live in the midst of the criminal underworld and inform largely for cash. Still others, at the other pole, are charged with serious crimes and cooperate with law enforcement officials in return for the hope or promise of leniency.166
In some past cases, the FBI's use of informants violated the Informant Guidelines, the MIOG, or federal or state law, with serious adverse consequences to prosecutions, third parties, agents' careers, and the FBI's reputation. We describe below cases in which agents engaged in criminal or administrative misconduct in handling informants, informants committed unauthorized crimes and asserted claims and defenses against the government based on their informant status, and third parties initiated litigation against the government claiming injuries arising from the conduct of informants.
FBI Misconduct Relating to Informants. Serious FBI misconduct relating to the handling of informants can result in criminal prosecution. For example, in June 2002 John J. Connolly, Jr., who served as a Special Agent in the FBI's Boston office and handled complex organized crime investigations, was convicted following a jury trial of racketeering, obstruction of justice, and making false statements arising from his mishandling of FBI informants Whitey Bulger and Stephen Flemmi.167 We describe the Bulger-Flemmi matter in CI Case Study 1, below.
Misconduct related to an informant can also result in administrative sanctions for the agent. In one recent case, an FBI Special Agent resigned while under investigation by the FBI's Office of Professional Responsibility (OPR) for having an inappropriate relationship with an informant and failing to be truthful during the ensuing OPR inquiry. OPR determined that among the factors aggravating the misconduct were the agent's failure to document his contacts with the informant, misuse of the agent's official position by assisting the informant's relative with legal and business matters, and the agent's effort to make the relative an "informal informant." In a 1999 case, an FBI agent was suspended for having an inappropriate relationship with a prospective informant, failing to properly document the individual as a CI, and failing to arrange for the arrest of the CI source after discovering there was an outstanding warrant for the source's arrest.168
Criminal Prosecution of Informants. Federal criminal prosecution of FBI informants can result from the informant's unauthorized criminal conduct or from situations in which the informant exceeds the scope of his authority to engage in "otherwise illegal activity" under the Informant Guidelines. In such cases, the informants often claim in defense that the government authorized or immunized their crimes. For example, in United States v. Hilton, 257 F.3d 50 (1st Cir. 2001), an informant who was prosecuted for possession of child pornography claimed "entrapment by estoppel," asserting that he reasonably believed he was lawfully permitted to download the pornography as long as he sent it on to law enforcement. The court rejected the defense, ruling that while the FBI contact agent had initially approved the defendant's possession of child pornography, the agent later clarified that "the FBI no longer required his assistance and that possession of child pornography was illegal." Id. at 56.
One of the more notorious of such cases is the Bulger-Flemmi matter described below in Confidential Informant Case Study 1. Stephen "the Rifleman" Flemmi and James "Whitey" Bulger, were "Top Echelon" confidential informants for the FBI's Boston office. Along with four co-defendants, they were indicted for racketeering, conspiracy, extortion, and bookmaking charges in 1995. Bulger was tipped off by FBI Special Agent John Connolly to his pending arrest. Bulger evaded law enforcement and remains a fugitive. As the following case study describes, when the government prosecuted Flemmi, he claimed that the FBI had authorized the crimes for which he was indicted.
Similarly, an "authorization" defense arose in the prosecution of Jackie Presser, a Teamsters official who was charged with embezzling over $700,000 in union funds. Presser asserted as an affirmative defense that he had been an FBI informant for 10 years and was authorized by the FBI to hire "phantom" or "no-show" employees. When Presser's FBI handlers testified under oath, they confirmed the assertions supporting Presser's defense. The government thereafter declined to prosecute Presser and consented to vacating earlier convictions of two phantom employees. A report by the staff of the Senate's Permanent Subcommittee on Investigations, one of three committees that investigated the matter, concluded that DOJ had failed to adequately monitor the FBI's informant system and should have required the FBI to disclose information about its informants.169
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Confidential Informant Case Study 1 FBI agent John Connolly, Jr. was sentenced in September 2002 to 10 years in prison for racketeering, obstruction of justice, and making false statements to investigators - all stemming from his handling of two FBI informants, James J. "Whitey" Bulger and Stephen J. "The Rifleman" Flemmi, leaders of South Boston's Winter Hill Gang. Bulger, Flemmi, and other defendants were indicted in January 1995 and charged with multiple counts of racketeering, extortion, and other crimes. Four days after Flemmi's arrest and the day before his indictment, the Special Agent in Charge (SAC) of the FBI's Boston field office notified the U.S. Attorney in the District of Massachusetts for the first time that Bulger and Flemmi had been informants for the FBI for much of the period covered by the indictment. In August 1995, the government disclosed to the presiding magistrate that Flemmi had been a confidential informant for the FBI and that Flemmi's informant file was being reviewed by senior DOJ officials to determine whether it contained any exculpatory material discoverable under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. In a 10-month evidentiary hearing that concluded in October 1998, after which the court denied Flemmi's motion to dismiss the indictment, a federal judge heard evidence produced in response to Flemmi's claim that the indictment against him should be dismissed based on "outrageous government misconduct," including a claim that the government promised that he and Bulger would be protected from prosecution as long as they continued to cooperate with the FBI about La Cosa Nostra. The judge heard evidence that Connolly and FBI Supervisory Special Agent John Morris became increasingly close to their informants and had filed false reports of information purportedly provided to them by the informants, ignored evidence that the informants were extorting others, caused the submission of false and misleading applications for electronic surveillance, and disclosed other confidential law enforcement information to them. Among the district court's findings of fact in its 661-page opinion was a condemnation of the FBI's failure to follow the Informant Guidelines. The court found that: 91 F. Supp. 2d at 201, 211, 216, 233, 249. The government took an interlocutory appeal of the district court's ruling that the FBI had made an enforceable promise of immunity with respect to the electronic surveillance evidence. The First Circuit reversed, holding that: (1) FBI agents lack authority to promise immunity to informants, and absent such authority, any promise made to Flemmi was unenforceable; (2) no prosecutor ratified the agents' promise of immunity to Flemmi; (3) Flemmi's reliance on a promise of immunity did not warrant suppression of evidence; and (4) any promise of immunity did not render Flemmi's statements in connection with the surveillance involuntary. United States v. Flemmi, 225 F.3d 78 (1st Cir. 2000). In December 1999, a grand jury convened by a special DOJ Task Force returned a RICO indictment against Connolly charging him with protecting Bulger and Flemmi through a pattern of obstruction of justice, including leaking to Bulger and Flemmi the names of several cooperating individuals who were later killed. Flemmi was also charged with racketeering, obstruction of justice, and conspiracy in the same indictment along with Bulger, against whom charges were dropped due to RICO Double Jeopardy concerns. In September 2001, Bulger and Flemmi were charged in a new indictment with committing 19 and 10 murders, respectively, and with conspiratorial liability for a total of 21 murders, all committed while they were providing information to the FBI. Flemmi pled guilty to the charges in the Connolly indictment at the same time he pled guilty in the new case. Connolly was tried and convicted in April 2002, the jury finding him guilty of multiple acts of obstruction of justice, including tipping Bulger to the 1995 indictment so he could flee. However, the jury acquitted Connolly on several of the racketeering acts, including those relating to the leaks of the identities of cooperating individuals leading to their deaths. Connolly received a 10-year sentence, which he is currently serving and which was upheld on appeal. On May 4, 2005, Connolly was indicted in Florida for first-degree murder and conspiring with Bulger and Flemmi to kill John Callahan, a Florida businessman who was a financial adviser to the Winter Hill Gang. In addition, the Tulsa District Attorney's Office charged another retired FBI agent, H. Paul Rico, who had been Flemmi's original handler, with aiding and abetting murder. Rico died of natural causes at age 78 while awaiting trial. Bulger remains a fugitive and is on the FBI's Ten Most Wanted List. |
Civil Litigation Based on Claims by Informants and Third Parties. By their terms, none of the Investigative Guidelines creates enforceable rights by CIs or anyone else. Specifically, the Informant Guidelines state:
Nothing in these Guidelines is intended to create or does create an enforceable legal right or private right of action by a CI or any other person.
CI Guidelines, § I.H. Despite this statement, private litigants - including confidential informants - have advanced alternative theories of liability against the United States, its law enforcement agencies, and individual agents and prosecutors based on informant or FBI misconduct, or some combination of the two. For example, the following types of claims have been litigated:
Other Informant Issues Arising During Federal Prosecutions. Since the January 2001 revisions to the Confidential Informant Guidelines, critical decisions about the registration and oversight of certain types of confidential informants are made jointly by the FBI and the Department of Justice. Other developments concerning confidential informants and certain decisions made exclusively by the FBI regarding informants require notice to DOJ or the U.S. Attorneys' Offices.170 In addition, § I.E of the Confidential Informant Guidelines provides that employees of the FBI and other Department of Justice Law Enforcement Agencies to which the Guidelines apply "have a duty of candor in the discharge of their responsibilities" under the Guidelines.
When the FBI fails to afford the required notice, fails to document activities or events involving informants in accordance with the Confidential Informant Guidelines, or is not candid with prosecutors concerning informant-related issues, the informants or other subjects of criminal prosecutions may claim that the government's failure to provide exculpatory or impeachment information arising from the informant's activities amounts to a violation of their constitutional rights. This was illustrated in United States v. Blanco, 392 F.3d 382 (9th Cir. 2004), in which the court held that the Government "wrongly suppressed" impeachment information about a confidential informant in violation of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972), during a narcotics prosecution. In particular, the court ruled that the Government had suppressed information pertaining to the special immigration treatment provided to the confidential informant by the Immigration and Naturalization Service (INS) for his work with the Drug Enforcement Administration (DEA). The court found that the DEA was well aware of the informant's immigration status, and the Government affirmatively represented that the informant's sole reward for work was monetary compensation, but it was not clear whether the prosecutor knew of the informant's immigration status because the DEA had been reluctant to provide information to the prosecutor. As a result, the appellate court issued an order requiring the district court to order the government to reveal all informant-related information.
Another issue that may arise is that the informant's identity will be disclosed in the course of the prosecution. The common law "informer's privilege" generally shields an informant's identity, but countervailing constitutional or policy considerations may result in court-ordered disclosure. In Roviaro v. United States, 353 U.S. 53, 59 (1957), the Supreme Court recognized "the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of the law." The informer's privilege is qualified, however, and the court may override the privilege and order disclosure of the informant's identity if disclosure is "relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." Roviaro, 353 U.S. at 60-61. The determination whether to disclose the identity of a confidential informant requires the court to balance "the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. at 62.172
As the foregoing cases illustrate, when the FBI formalizes a relationship with a confidential informant, both the investigative benefits and the risks are substantial. Accordingly, the administrative and operational rules and procedures employed by the FBI ensure careful evaluation and oversight of informants and that appropriate expertise from both the FBI and DOJ is employed to evaluate informants who present the greatest risks and benefits to the interests of the government. The Confidential Informant Guidelines prescribe the process by which FBI Special Agents and their supervisors propose, approve, and operate confidential informants. We summarize below the major steps in that process.
The Confidential Informant Guidelines prescribe how FBI agents are to obtain approval to evaluate and operate confidential informants. The period during which an individual is evaluated as a prospective informant is called the "Suitability Inquiry Period." During this period, the Guidelines require that a case agent proposing to operate a confidential informant complete an Initial Suitability Report & Recommendation (ISR&R). The ISR&R addresses 17 different factors, including the person's age, alien status, and the following particulars:
CI Guidelines § II.A.1.
A proposed informant may remain in "suitability inquiry status" for up to 120 days with an extension of an additional 120 days.172 Thereafter, if the case agent is satisfied that the person is suitable, the case agent may register the person as a confidential informant, subject to the field manager's approval. At this juncture, the case agent must document in the CI's files:
CI Guidelines § II.B.
The Guidelines also require that case agents complete and sign a Continuing Suitability Report & Recommendation (CSR&R) at least annually and forward the document to a field manager for approval. The CSR&R must address all the factors covered in the initial suitability review and, in addition, state the length of time the person has been a CI and the length of time the CI has been handled by the same agent or agents.
CI Guidelines § II.A.2.
The FBI's determination of a source's suitability to serve as a confidential informant is a pivotal judgment. Since the revisions to the CI Guidelines in January 2001, judgments about registering and retaining high-risk or particularly sensitive informants have been jointly made by the FBI and senior DOJ prosecutors. In addition, the Confidential Informant Guidelines require additional scrutiny and higher approval levels for confidential informants who fall into any of the following three categories:
Long-tern confidential informants, defined as those who have been registered for more than six consecutive years;173
High level confidential informants, defined as individuals who are part of the senior leadership of an enterprise that (a) has (i) a national or international sphere of activities, or (ii) high significance to the FBI's national objectives, even if the enterprise's sphere of activities is local or regional, and (b) engages in or uses others to commit activity that qualifies as Tier 1 Otherwise Illegal Activity under the Guidelines;174 and
Privileged confidential informants, defined as individuals who are under the obligation of a legal privilege of confidentiality (such as doctors, lawyers, and clergy) or individuals who are affiliated with the news media.175
For these categories of informants, approval must be secured from the Confidential Informant Review Committee (CIRC), which also provides ongoing oversight over these types of informants.176 As we discuss in Chapter Seven, the CIRC focuses on critical aspects of the informant relationship through an exchange of information between the field offices that operate the informants and senior FBI and DOJ officials who test various assertions about the CI's reliability and productivity, the scope of any FBI-authorized "otherwise illegal activity," the implications for the FBI's relationship with the informant of any unauthorized illegal activity by the CI, and the various risks attendant to maintaining a relationship with particular informants.
Special Agents who handle CIs are required by the Guidelines (and the MIOG) to instruct or caution them at certain intervals. The instructions convey to the CI the scope of the informant's authority, the limits on the FBI's assurances of confidentiality, prohibitions against certain types of activity, and the possible consequences of violating these conditions. Upon registering a CI, the case agent, along with one other agent who must be present as a witness, is required to review with the CI the following written instructions:
CI Guidelines § II.C.1.
In addition, if applicable, the case agent must add the following instructions:
Id.
As described in the next section of this chapter, if the informant is authorized to engage in "otherwise illegal activity," the FBI must provide additional detailed instructions addressing the scope and limits of the authority. CI Guidelines § III.C.4.
For all categories of informants, the instructions formalize the relationship between the individual and the FBI. If the constraints within which the informant is to operate are not clear and well documented, unnecessary risk results. Failure to adhere to the Guidelines' provisions requiring periodic instructions can result in claims by informants that they had authority from the FBI to commit crimes and can thereby jeopardize investigations and prosecutions of informants and others or result in civil liability for the government.
The Confidential Informant Guidelines permit the FBI to authorize confidential informants to engage in activities that would otherwise constitute crimes under state or federal law if engaged in by someone without such authorization. Such conduct is termed "otherwise illegal activity" or "OIA."
There are two types, or levels, of OIA: "Tier 1 OIA" and "Tier 2 OIA." Tier I OIA, the most serious, is defined as any activity that would constitute a misdemeanor or felony under federal, state, or local law if engaged in by a person acting without authorization and that involves the commission or the significant risk of the commission of certain offenses, including acts of violence; corrupt conduct by senior federal, state, or local public officials; or the manufacture, importing, exporting, possession, or trafficking in controlled substances of certain quantities.177 "Tier 2 OIA" is defined as any other activity that would constitute a misdemeanor or felony under federal, state, or local law if engaged in by a person acting without authorization.178
Both Tier 1 and Tier 2 OIA must be authorized in advance, in writing, for a specified period not to exceed 90 days. Tier 1 OIA must be approved by an FBI SAC and the "appropriate Chief Federal Prosecutor," typically the U.S. Attorney in the district that is participating in the investigation utilizing the CI.179 Tier 2 OIA may be approved by a senior FBI field manager (usually an Assistant Special Agent in Charge (ASAC) or a Supervisory Special Agent (SSA)), but does not require the approval of the U.S. Attorney.180 The Guidelines state that the FBI is never permitted to authorize a CI to participate in an act of violence, obstruction of justice, or other enumerated unlawful activities. CI Guidelines § III.C.1.b.
Authorizing confidential informants to engage in otherwise illegal activity can facilitate their usefulness as a source of information to the government but may also have adverse consequences. As illustrated in the Bulger-Flemmi and Presser cases described earlier, the confidential informant's criminal activity can hinder prosecution of the informant's co-conspirators by prompting, for example, defenses of public authority or entrapment. Moreover, OIA authorizations may have unforeseen consequences. For example, a decision to authorize a confidential informant to engage in bookmaking may create difficulties in prosecuting the informant or co-conspirators on charges related to the informant's activity.
Before either level of OIA may be authorized, the authorizing official must make certain findings as to why it is necessary for the CI to engage in the OIA and assess whether the benefits to be obtained from the FBI's authorization outweigh the risks. Specifically, the FBI must make a finding, documented in the CI's file, that the authorization for the CI to engage in the Tier 1 or Tier 2 OIA
If the OIA is approved, at least one FBI agent and an alternate agent must review special written instructions with the CI that the CI must sign or initial and date the form. The instructions must address the limits of the authority, the specific conduct authorized, the time period specified, prohibitions on certain behavior, including acts of violence and obstruction of justice, and the consequences to the CI of operating outside the authority granted. In addition, if the OIA is extended past the initial authorized time period, the informants must receive and sign the instructions pertaining to the OIA every 90 days. CI Guidelines, § III.C.4; MIOG § 137-10(9).
[SENSITIVE INFORMATION REDACTED],182 [SENSITIVE INFORMATION REDACTED],183 [SENSITIVE INFORMATION REDACTED].184 If an informant has engaged in unauthorized illegal activity, the FBI's originating field office must respond to seven questions from the FBI's Human Intelligence Unit (HIU) (formerly the Asset/Informant Unit in the Criminal Investigative Division) that focus on whether, in the judgment of the SAC, the informant nevertheless remains suitable. The SAC must also address other important issues triggered by the UIA, including whether the case agent or handler has attempted to intercede on behalf of the informant or to make any recommendations to state or local authorities regarding the informant's case. See MIOG § 137-11(4). FBI officials and prosecutors we interviewed during this review told us that when FBI agents get too close to their sources, they sometimes improperly intervene to assist their informants if they are arrested or run into other difficulties.185
The Guidelines recognize that if a confidential informant commits unauthorized illegal activity, the FBI and DOJ should immediately reevaluate the informant's continuing suitability. The Guidelines require that the unauthorized illegal activity must immediately be brought to the attention of senior FBI field office and Headquarters personnel, as well as the U.S. Attorney, so that a careful reevaluation is made of the informant's suitability in the following circumstances. First, if the FBI has reasonable grounds to believe that a confidential informant who has current authorization for Tier 1 or Tier 2 otherwise illegal activity has engaged in any criminal activity that is not authorized, the SAC must immediately notify the U.S. Attorney's Office of the CI's criminal activity and his or her status as a CI. CI Guidelines, § IV.B.1. Second, if the FBI knows that a confidential informant who has no current authority to engage in otherwise illegal activity has engaged in any criminal activity, the SAC must also immediately notify the U.S. Attorney. Id. Such notice is not required, however, when a state or local prosecuting office has filed charges against the informant for the illegal conduct, there is no clear basis for federal prosecution, and federal prosecutors have not previously authorized the CI to engage in Tier I OIA or been involved in an investigation that is utilizing the CI. CI Guidelines § IV.B.1.
If these steps are not taken and the informant continues to operate, serious complications may develop, including situations where prosecution of the informant is jeopardized because the informant claims the government acquiesced in the continuing illegal activity.186 On the other hand, if the FBI makes the limits of the informant relationship clear and documents its instructions to the informant, such claims are less likely to be sustained.187
The case of informant Gregory Scarpa, Sr. is an example of how an informant's unauthorized illegal activity can compromise criminal prosecutions. As described in the following case study, the FBI's informant relationship with Scarpa, a "capo" of a New York organized crime family, became controversial in several significant federal prosecutions in the 1990s. According to testimony presented in these cases, Scarpa's FBI handler ignored unauthorized criminal activity by Scarpa; revealed confidential law enforcement information to him, including the FBI's planned surveillance of a mob hangout; and helped Scarpa's son avoid arrest.
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Confidential Informant Case Study 2 Gregory Scarpa, Sr., who was involved in organized crime for most of his life, served as an FBI confidential informant at various times from 1980 until the early 1990s. His relationship with the FBI and, in particular, with his sole handler, R. Lindley DeVecchio, factored in a number of major prosecutions against New York members of La Cosa Nostra (LCN) in the 1990s. In some cases, Scarpa's status as an FBI informant was known during trial; in another, it was not revealed until post-conviction motions were filed and Scarpa had died. Victor Orena and Pasquale Amato. In two separate federal trials in 1992 and 1993, juries found Victor J. Orena, the "acting boss" of the Colombo Family, and Pasquale Amato guilty of racketeering, conspiracy, and firearms charges. The events leading to the convictions of Orena and Amato stemmed from the "Colombo Wars," a power struggle between two Colombo factions, the Persicos and the Orenas that lasted from the fall of 1991 through the spring of 1992. At Orena's trial, DeVecchio, who headed the Colombo LCN squad in the FBI's New York Field Office, testified as an expert witness about the nature and structure of organized crime. Both defendants were sentenced to life in prison, and the Second Circuit affirmed both convictions and sentences. Years after their convictions and following exhaustion of all appeals, Orena and Amato filed motions for dismissal of their indictments or for new trials alleging a violation of the government's disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963). Their motions were based upon DeVecchio's "questionable ethics and judgments" as revealed in proceedings in another case. After learning that Scarpa was a long-time FBI informant, Orena and Amato contended that it was not they, but DeVecchio, who conspired with Scarpa to instigate the Mafia war and caused the killing of their partner and loan shark, Thomas Ocera, one of the murders for which Orena and Amato were convicted. The trial court denied the post-trial motions. Orena v. United States, 956 F. Supp. 1071 (E.D.N.Y. 1997). However, the court closely examined the relationship between DeVecchio and Scarpa, who rose to the position of a "capo" or captain in the Colombo family. According to the trial court, in the 1970s and perhaps as early as the 1960s, Scarpa had been regularly in touch with an FBI agent. The relationship was broken off until DeVecchio succeeded in renewing Scarpa's informant status in December 1980. DeVecchio acted as Scarpa's sole FBI handler from that time until Scarpa was finally terminated as an FBI informant after the Colombo Wars were over in 1992, despite an FBI protocol which required informants to be handled by two agents at a time. As a "top echelon" informant, Scarpa initially provided the FBI with information pertaining to organizational activity and personnel movements within the Colombo Family. After the Colombo Wars commenced in late 1991, he provided detailed reports of perpetrators and strategic planning of the opposing factions. The court found that DeVecchio reciprocated by passing along unauthorized information to Scarpa. For example, evidence was presented indicating that DeVecchio warned Scarpa of his pending arrest on federal credit card fraud charges and may have intervened with the sentencing judge to request lenient treatment. There also was suspicion that in 1987 DeVecchio leaked to Scarpa information that the Wimpy Boys Social Club, a favorite Colombo gathering place, was subject to court-ordered electronic surveillance; that he tipped off Scarpa to the planned DEA arrest of his son, Gregory Scarpa Jr., and others in connection with the criminal activity at the social club; and that, as a result of the warning, Gregory Scarpa, Jr. became a fugitive. With respect to the Confidential Informant Guidelines, the court also found that: In its ruling on Orena's and Amato's motions for dismissal of their indictments or new trials, the district court held that (1) the defendants either knew or should have known that a member of the organized crime family to which they belonged had acted as an informant, so the government's failure to disclose that fact did not warrant a new trial; (2) evidence that a government agent had leaked information to an informant and that a second government agent had concerns regarding the relationship between the first agent and the informant was not material to the Government's charges, so the Government's failure to disclose did not warrant relief under Brady; and (3) newly discovered evidence did not warrant a new trial. On the issue of leaking information to an informant and the relationship between DeVecchio and Scarpa, the district court observed that while the CI Guidelines provide guidance on "sanctioning criminal conduct on the part of informants where necessary 'to establish and maintain credibility or cover with persons associated with criminal activity under investigation,'" the "line between the value of an informer and the unreasonable risks of encouraging serious criminal activity requires judgment of senior supervisors with sound ethical compasses; people in the field are often not in a position to provide the necessary direction." Orena v. United States, 956 F. Supp. 1071, 1102 (E.D.N.Y. 1997). The court noted that, according to the Attorney General Guidelines, the FBI does exercise control at the supervisory level in Washington and locally. In the case of Scarpa, however, "these administrative controls failed to work because DeVecchio was not properly supervised locally and because . . . he failed to inform his supervisors in Washington of the probability that Scarpa was engaged in violence." Id. at 1103. Victor Orena, Jr., John Orena, Thomas Petrizzo, et al. In June 1995, a jury acquitted seven reputed associates of the Orena wing of the Colombo family of conspiring to murder members of the rival Persico faction of the family. Scarpa's status as an FBI informant became a pivotal issue during the trial. Fellow FBI agents testified that they had become suspicious of DeVecchio and were particularly concerned that he had fed confidential information to Scarpa which helped him to evade arrest. Anthony Russo, Joseph Russo and Joseph Monteleone. Scarpa's relationship with the FBI generated post-trial motions in another case following the conviction of LCN defendants on murder and conspiracy to murder charges. In that case, in March 1997, the trial judge granted a motion for a new trial to Anthony Russo, Joseph Russo, and Joseph Monteleone, finding that the Government had improperly failed to disclose evidence bearing on Scarpa's credibility. The Court of Appeals reversed that portion of the district court's order that granted a new trial, rejecting the trial court's conclusion that evidence that Scarpa lied to the FBI about his involvement in certain other murders gave rise to an inference that he lied to his co-conspirators about the murders in question. |
Due to the risks involved in operating informants and the corresponding need to closely supervise their status and operation, the Guidelines prescribe that certain steps be taken in the event a confidential informant is deactivated or "closed."188 If a determination is made to close a confidential informant, whether for "cause" or for any other reason, the case agent must document the reasons for deactivation in the CI's file. The MIOG defines "cause" as:
any grievous action by or set of previously unknown facts/circumstances that deem the individual not suitable for use as a CI. Such actions that might give "cause" include but are not limited to: disbarment; unauthorized criminal activity; incarceration; failure to follow instructions; violation of any parole, release guidelines or agreements; providing unreliable information, etc.189
When an informant is closed, the agent must also notify the CI that he or she has been deactivated and document this notification.190 Moreover, if the CI is authorized to engage in otherwise illegal activity (Tier 1 or Tier 2), the case agent must revoke this authorization, and document its revocation. CI Guidelines § V.A.4. If a U.S. Attorney's Office is either "participating in the conduct of an investigation" that is utilizing a CI or "working with a CI in connection with a prosecution," the FBI must coordinate with the prosecuting attorney assigned to the matter, "in advance whenever possible," regarding specified decisions relating to the CI, including a decision to deactivate a CI. CI Guidelines § V.D.
There have been many cases in which the confidential informant's status was unknown to the prosecution, among them the Bulger-Flemmi matter described above in CI Case Study No. 1. Flemmi and Bulger were opened, then deactivated or closed for various periods of time when they became suspects or targets of other investigations. According to prosecutors who are familiar with their FBI informant files, one could not tell looking at their files when they were opened, active, or closed as informants.191 Unless the informant's status is clear, the government may not be able to fully meet its discovery obligations. Moreover, if informants are closed but the FBI cannot document this fact along with any required revocation of OIA authority, the government becomes vulnerable to the defense that the FBI authorized the informant's illegal activities.
As described in Chapter Two, major revisions of the Confidential Informant Guidelines were approved by Attorney General Reno on January 8, 2001. The 2001 revisions were the product of a 2-year effort by a joint FBI-DOJ committee known as the "Resolution 18 Committee." The 2001 revisions included significant modifications to the provisions regarding suitability, authorization to engage in otherwise illegal activity, the prohibition against making commitments to the CI regarding immunity from prosecution, and notifying the prosecutor of the confidential informant's true identity. As we discussed in Chapter Two, many of the modifications to the previous version of the Guidelines attempted to address administrative and management weaknesses that came to light during the Bulger-Flemmi matter.
Further revisions in May 2002 made only minor modifications to the Confidential Informant Guidelines.192 Under the January 2001 Guidelines, case agents who worked with confidential informants were required to read to CIs verbatim certain instructions about the constraints imposed on their activities. This provision was replaced in May 2002 by a requirement that the contact agent or "handler," along with an additional agent present as a witness, review the written instructions with the CI. CI Guidelines § II.C.1. The removal of the verbatim requirement was needed, according to FBI Director Mueller, because "the verbatim instructions, written in often intimidating legalese, were proving to have a chilling effect, causing confidential informants to leave the program."193
Under the May 2002 revisions, an agent may now adapt the instructions - including the instructions on protecting the confidentiality of the CI's identity - to the CI's particular circumstances. Nonetheless, agents must clearly convey the content and meaning of each applicable instruction and document that the instructions were reviewed and that the CI acknowledged the CI's understanding of them.194
Under the Confidential Informant Guidelines issued in January 2001, case agents who worked with CIs were required to give an instruction to the CIs (even if they had no relevance to the CI's situation), relating to the inability of investigative agencies to promise immunity from prosecution. The revised Guidelines emphasize that regardless of whether these instructions are given, the FBI has no authority to confer immunity, and agents must avoid giving CIs the erroneous impression that they have such authority. CI Guidelines §§ II.C.1 (d), (e), and (k).
To test compliance with key provisions of the Informant Guidelines in the investigative files we reviewed, we selected a judgmental sample of 120 individual confidential informant files from 12 FBI field offices we visited between June and August 2004. The CI files we reviewed fit into at least one of four categories: long-term CIs, CIs authorized to perform otherwise illegal activity, privileged or media-affiliated CIs, and CIs who are not reviewed at FBI Headquarters.195 The files included some CIs who were reviewed by the CIRC and some who were authorized only at the field level.196 Among the "non-CIRC" CIs we reviewed, we chose CIs who were opened for over one year, CIs from different squads and programs, CIs who had been paid substantial sums, and CIs who were closed more than six months after the May 2002 revisions became effective.197
In examining individual informant files, we collected data on: suitability determinations, instructions, documentation and notifications to U.S. Attorneys' Offices of unauthorized illegal activity, approval of otherwise illegal activity, and deactivations.198 We sought to answer the following key questions.
Taken together, we believe these five factors address critical judgments the FBI must make under the existing Confidential Informant Guidelines to ensure that those registered as confidential informants are suitable and understand the limits of the relationship, and that responsible DOJ officials approve, concur in, or are notified of significant developments in the informant relationship. The requirements we tested became effective 120 days after issuance of the revised Confidential Informant Guidelines in January 2001. These requirements were unaffected by the May 2002 Guidelines revisions.
In addition to our review of informant files, we also examined field guidance distributed by the FBI's Criminal Investigative Division (CID) and the results of various reviews of the Criminal Informant Program. The reviews included inspection reports generated by the FBI's Inspection Division and reinspections coordinated by the Asset/Informant Unit (A/IU) in the Criminal Intelligence Section of the CID. We also examined the role played by Confidential Informant Coordinators, who are GS-10 through GS-13 non-supervisory Special Agents who have the responsibility, as their principal assignment or as collateral duty, to assist FBI agents with issues associated with the administration and operation of human sources. Confidential Informant Coordinators also work with confidential file room analysts in managing the special recordkeeping and document management requirements of the Criminal Informant Program, troubleshoot problems, and assist in the training and administrative aspects of informant operations.200 We surveyed these Coordinators about the work they do in supporting the Criminal Informant Program and solicited their views on FBI compliance with the Guidelines.201 To supplement these findings, we also surveyed FBI Division Counsel and the Chiefs of the Criminal Division of the U.S. Attorneys' Offices for their perspectives on compliance-related aspects of the Confidential Informant Guidelines.202
Overall, we found one or more Guidelines deficiencies in 104 of the 120 confidential informant files, or 87 percent of those we examined. The deficiencies included failure to document the agent's evaluation of one or more suitability factors in the initial or continuing suitability evaluations, failure to give the required instructions to CIs or to do so at the required intervals, failure to obtain proper authority to permit CIs to engage in otherwise illegal activities, issuance of retroactive approvals of otherwise illegal activities, failure to report unauthorized illegal activity in accordance with the Guidelines, and failure to document deactivation of CIs.
The following table summarizes our compliance findings by category.
TABLE 3.1
OIG Findings on Confidential Informant Guidelines
Compliance Deficiencies in Select FBI Field Offices
| OIG Selection Criteria203 | Files Meeting Selection Criteria |
Number of Non- compliant Files |
Percent Non- compliant |
|
|---|---|---|---|---|
| 1 | Initial Suitability Reports & Recommendations (ISR&Rs) - Required Elements Not Addressed204 | 44 | 15 | 34% |
| 2 | Instructions | 120 | 59 | 49% |
| a | Missing One or More Instructions | 27 | 23% | |
| b | Untimely Instructions | 33 | 28% | |
| 3 | Continuing Suitability Reports & Recommendations (CSR&Rs) | 96 | 74 | 77% |
| a | Missing One or More Reports | 57 | 59% | |
| b | Untimely Reports | 12 | 13% | |
| c | Required Element(s) Not Addressed | 20 | 21% | |
| 4 | Otherwise Illegal Activity (OIA) | 25 | 15 | 60% |
| a | OIA Authorized Prior to Source's Conversion to CI Status | 4 | 16% | |
| b | Tier 1 Not Authorized by USAO | 2 | 2 | 100% |
| c | CI Did Not Sign Acknowledgement | 7 | 28% | |
| d | Instructions Not Timely Provided to CI After Authorization | 1 | 4% | |
| e | Instructions Not Provided to CI Upon Renewal | 2 | 8% | |
| f | Description of OIA Not Specific | 7 | 28% | |
| g | Not Authorized in Advance (Retroactive Authorization) | 5 | 20% | |
| 5 | UNAUTHORIZED ILLEGAL ACTIVITY | 12 | 5 | 42% |
| a | Notification from FBI - SAC to U.S. Attorney | 5 | 5 | 100% |
| a(1) | Not at SAC-USA Level205 | 3 | 60% | |
| a(2) | Not Provided to USAO | 2 | 40% | |
| 6 | DEACTIVATION | 46 | 17 | 37% |
| a | Notification to CI | 16 | 35% | |
| a(1) | No Documentation of Notification to CI | 15 | 33% | |
| a(2) | Did Not Notify CI | 1 | 2% | |
| b | Reasons Not Documented | 1 | 2% | |
| c | No Coordination With USAO | 1 | 2% | |
| TOTAL206 | 120 | 104 | 87% |
We set forth below our findings for each of the five compliance categories we tested in our review of 120 individual confidential informant files. Due to the critical interaction mandated by the Guidelines between the FBI and the U.S. Attorneys' Offices, we separately address compliance findings relating to those exchanges.
As we discussed above, suitability reviews are the initial and periodic reviews undertaken by FBI Special Agents and their supervisors to evaluate the suitability of those whom they propose to operate or to continue operating as confidential informants. In one form or another, suitability reviews have been required for all confidential informants since the first set of Attorney General Guidelines issued in 1976.
Since January 2001, Special Agents proposing to designate a source of information as a confidential informant have been required to research at least 17 different factors which, collectively, will inform the initial suitability determination. Prospective confidential informants are initially placed in Suitability Inquiry Status (SIS) for up to 120 days, during which these factors are researched and evaluated by the Special Agent who is proposing to "run" or operate the confidential informant. If the case agent proposes, and the field manager approves, the suitability of an individual to serve as a confidential informant, the informant is "registered" as a confidential informant, at which point certain identifying and other information is placed in the informant's file. CI Guidelines § II.B.
The suitability elements listed in § II.A of the CI Guidelines address several concerns, including whether the CI's information can be corroborated and is relevant to an investigation's objectives. If the informant's information cannot be corroborated, it is likely to be insufficient for critical purposes (e.g., the informant will not establish probable cause for a search warrant or Title III wiretap under either Aguilar v. Texas, 378 U.S. 108 (1964), Spinelli v. United States, 393 U.S. 410 (1969), or Illinois v. Gates, 459 U.S. 1028 (1982)), and, at worst, part of an effort by the informant to serve the informant's own purposes at law enforcement expense.
Agents must also address the nature of the CI's relationship to the subject or target of the investigation. This is another means by which to assess the potential relevance of the confidential informant's information and also flag potential negative suitability issues. For instance, if the prospective confidential informant is a bookmaker who has been taken into the confidence of a mafia boss, he would be a potentially ideal informant from the standpoint of a cost/benefit analysis. The confidential informant presumably will have valuable information about an important target but is not committing crimes nearly as serious as the target's. If the situation is the reverse, however, it may not be a productive arrangement for the government. For example, confidential informants Bulger and Flemmi were mob bosses who were providing information about lower-level criminals and crimes while using law enforcement to serve their criminal purposes and preserving the possibility of an informant defense if prosecuted themselves for murder and other serious crimes.207
Of the 120 CI files we reviewed, 44 required an Initial Suitability Report & Recommendation (ISR&R) during the period of our review.208 Of those 44 CI files, we found that:
Case agents who operate confidential informants are also required to make continuing suitability reviews at least annually and to forward their reports and recommendations to their field managers for approval. CI Guidelines § II.A.2. Case agents must address all of the applicable factors required for the initial suitability determination and, in addition, indicate the length of time the individual has been registered as a confidential informant and the length of time the individual has been handled by the same agent or agents.
We found that 2 of the 12 field offices we visited did not require case agents to perform the continuing suitability reviews required by § II.A.2 of the Confidential Informant Guidelines.210 Of the 120 CI files we reviewed, 96 required a Continuing Suitability Report & Recommendation (CSR&R) during the period of our review. Of the 96 CI files (including files from the 2 offices that did not complete CSR&Rs), we found that 57 of the 96 files, or 59 percent, did not contain 1 or more required CSR&Rs. The breakdown of the 57 files that did not contain a required CSR&R is as follows:
Our surveys of Informant Coordinators also revealed concerns about agents' compliance with the suitability assessment requirements. With regard to the critical initial evaluation of CIs' suitability, 27 percent of the Coordinators said they believe that insufficiently rigorous suitability determinations are an occasional concern in their respective field offices, and 43 percent said they believe that agents' failure to devote adequate time to complete the paperwork associated with confidential informants is an occasional concern.211
As described earlier, when a confidential informant is registered, the case agent must review with the CI, in the presence of another agent, written instructions or admonishments detailing the constraints under which the CI is to operate. The Guidelines require that the content and meaning of the instructions must be clearly conveyed, but as of May 2002, they no longer require that the instructions be read verbatim. After the instructions are given, the case agent must obtain the CI's acknowledgement of the CI's receipt and understanding of the instructions and must document that the instructions were reviewed with the CI and that the CI acknowledged his or her understanding of them.
CI Guidelines § II.C.
The 120 CI files we reviewed all involved informants who were supposed to be instructed by the assigned case agents at registration, annually, or both. Of those 120 CI files, we found that:
The following table illustrates our field office compliance findings with respect to documentation of the requirement to provide instructions to confidential informants.
TABLE 3.2
Compliance with Confidential Informant Guidelines Instruction
Requirements in Select FBI Field Offices
| Field Office | Number of CI Files That Required Instructions |
Compliant CI Files | Deficient CI Files | |
| Number Compliant With Instruction Requirements |
Number in Which at Least One Instruction Was Missing |
Number in Which Instructions Were Untimely |
||
| Field Office 1 | 10 | 5 | 1 | 4 |
| Field Office 2 | 10 | 6 | 2 | 2 |
| Field Office 3 | 10 | 9 | 1 | |
| Field Office 4 | 10 | 5 | 4 | 1 |
| Field Office 5 | 10 | 3 | 4 | 3 |
| Field Office 6 | 9 | 4 | 3 | 2 |
| Field Office 7 | 10 | 7 | 3 | |
| Field Office 8 | 10 | 4 | 3 | 3 |
| Field Office 9 | 10 | 7 | 3 | |
| Field Office 10 | 9 | 2 | 4 | 3 |
| Field Office 11 | 11 | 4 | 4 | 3 |
| Field Office 12 | 11 | 5 | 2 | 5 |
The following table illustrates the significant disparity in the number of days the FBI was late in providing the required instructions, either upon registration of the CI or in giving the annual instructions.
TABLE 3.3
Timeliness of Instructions Given to Confidential Informants
in Select FBI Field Offices
| FIELD OFFICE | TOTAL NUMBER LATE | DAYS LATE | |
|---|---|---|---|
| REGISTRATION | ANNUAL | ||
| FIELD OFFICE 1 | 4 | 33 | 11 |
| 108 | |||
| 178 | |||
| FIELD OFFICE 2 | 2 | 38 | |
| 69 | |||
| FIELD OFFICE 3 | 1 | 4 | |
| FIELD OFFICE 4 | 1 | 29 | |
| FIELD OFFICE 5 | 4 | 10 | |
| 21 | |||
| 86 | |||
| 144 | |||
| FIELD OFFICE 6 | 2 | 45 | |
| 64 | |||
| FIELD OFFICE 7 | 3 | 90 | 36 |
| 46 | |||
| FIELD OFFICE 8 | 3 | 11 | |
| 46 | |||
| 215 | |||
| FIELD OFFICE 9 | 3 | 6 | |
| 19 | |||
| 97 | |||
| FIELD OFFICE 10 | 3 | 4 | |
| 43 | |||
| 174 | |||
| FIELD OFFICE 11 | 3 | 21 | |
| 159 | |||
| 270 | |||
| FIELD OFFICE 12 | 5 | 25 | |
| 43 | |||
| 65 | |||
| 91 | |||
| 146 | |||
Our findings that all required instructions were not given in a substantial percentage of the sampled CI files were corroborated by the survey responses from Confidential Informant Coordinators. As reflected in the following diagram, Informant Coordinators told us that they believed case agents in their field offices are communicating the required instructions and are delivering them in the presence of another law enforcement officer in all cases less than two-thirds of the time. Informant Coordinators further reported that adherence to the requirement that instructions be repeated every 12 months is even lower. As the following diagram illustrates, only 32 percent of Informant Coordinators said the annual instructions are given in all cases, and 66 percent stated they are given in a majority of cases.'
As described earlier in this chapter, under some circumstances the Confidential Informant Guidelines permit confidential informants to engage in otherwise illegal activity (OIA). The most serious OIA is called "Tier 1 OIA," which must be authorized by the FBI Assistant Director in Charge or Special Agent in Charge of the Field Office or Division and the appropriate U.S. Attorney in advance and in writing. The authorization is effective for a period not to exceed 90 days.213 "Tier 2 OIA" may be authorized for a period not to exceed 90 days by a senior field manager214 and must also be in writing.215
In order to be authorized to engage in either Tier 1 or Tier 2 OIA, the informant must be a fully operational CI, a status obtained only when the CI is "registered" at the conclusion of a successful suitability inquiry period.216 In addition, the authorizing official must make a finding that the authorization to engage in OIA is necessary either to obtain information or evidence that is essential for the success of the investigation and that is not reasonably available without the authorization, or to prevent death, serious bodily injury, or significant property damage, and that, in either case, the benefits to be obtained from the informant's participation in OIA outweigh the risks.
According to a senior HIU official, in a typical drug investigation Tier 1 OIA is usually limited to negotiating the purchase of drugs in quantities that exceed the Federal Sentencing Guidelines' provision referenced in the definition of Tier 1 OIA in § I.B.10.b.iii of the Confidential Informant Guidelines, or engaging in activities that involve a significant risk of violence. The official said that Tier 2 OIA typically involves similar activities to Tier 1 OIA but drug amounts below the sentencing guidelines thresholds and with no significant risk of violence.217 In a public corruption investigation, Tier 1 OIA might involve conspiratorial conversations involving bribery of a high level public official, while Tier 2 OIA would involve similar conversations about a lower level official.
We surveyed Confidential Informant Coordinators to see if they believed case agents in their field offices were complying with the Guidelines' requirement to obtain the informant's written acknowledgement of instructions relating to authority to engage in otherwise illegal activity.218 Only 52 percent of the Coordinators reported that they believed agents in their field offices obtain the required written acknowledgements in all cases, and only 36 percent said they believed that agents in their field offices are conveying in all cases the instructions indicating that the CIs have not been authorized to engage in any criminal activity and have no immunity from prosecution.
We reviewed 25 informant files in which OIA was authorized, of which 2 included Tier 1 OIA and 23 were exclusively Tier 2 OIA.219 With respect to the Guidelines' requirements governing the authorization of OIA, our findings confirmed the views of the Confidential Informant Coordinators. We found that 15 of the 25 files, or 60 percent, reflected compliance deficiencies. The deficiencies included OIA authorizations for sources who had not yet been registered as CIs, retroactive authorizations of OIA, authorizations of Tier 2 OIA that should have been denominated as Tier 1 and therefore required DOJ approval, insufficiently specific descriptions of OIA, failures to obtain the CI's written acknowledgment of instructions regarding the limits of OIA activities, and failures to provide required instructions.
Four of the 25 files, or 16 percent, indicate that sources were authorized by field supervisors to engage in Tier 2 OIA from 45 to 154 days before the source was approved for conversion to a fully operational confidential informant. Although these four files do not indicate when the OIA was actually performed, we consider this to be a Guidelines violation since the period during which the CI was authorized to engage in OIA preceded the period for which the CI was eligible to engage in OIA under the Guidelines. The Tier 2 OIA that was authorized for these sources included making controlled buys of cocaine, paying over $10,000 to establish the CI's credibility in a racketeering investigation, and engaging in conspiratorial conversations relating to a drug trafficking investigation.
Five of the 25 files that contained OIA authorization, or 20 percent, indicate that the field supervisors retroactively authorized confidential informants to engage in Tier 2 OIA anywhere from 17 to 63 days after the start of the authorization period. In these cases, field supervisors authorized the OIA retroactively to the first day of the 90-day authorization period. The OIA in these cases included engaging in conspiratorial conversations in connection with a domestic terrorism investigation, engaging in telephone conversations and face-to-face meetings with targeted subjects of a drug trafficking investigation, and purchasing drug paraphernalia as a drug broker. We could not determine from our limited file reviews the reason why the case agents sought OIA authority for the earlier period, whether the CIs in fact engaged in OIA prior to the retroactive authorization, or whether the field supervisors were aware of either the specific criminal activities that were retroactively authorized or the reason for the agents' delay in seeking approval.
We also identified two instances in which the FBI failed to obtain proper authorization from the U.S. Attorney with respect to Tier 1 OIA. Both matters originated in the same field office, and the OIA in question was treated as Tier 2.220 In the first case, the FBI's authorization included conspiracy to commit robbery, a crime of violence. In the second case, the risk of violence justified the Tier 1 status.
The files for 7 of the 25 CI files (28 percent) that contained OIA authorizations did not include sufficiently specific descriptions of the authorized OIA in that they failed to specify the time period or "specific conduct" authorized. For example, authorizations of Tier 2 OIA were based upon the following broad descriptions of the otherwise illegal activity:
In addition, 7 of the 25 files, or 28 percent, did not include the CI's signature or initials acknowledging that the CI had reviewed the written instructions on the limits of OIA activities. The files for 2 CIs indicated that the OIA admonishments were not given every 90 days as required by the Guidelines.
The following table illustrates our findings regarding premature, retroactive, and insufficiently specific authorizations, and authorizations of persons for whom the FBI had no basis to authorize OIA.
TABLE 3.4
Compliance Deficiencies Involving FBI Authorization
of Otherwise Illegal Activity in Select FBI Field Offices
| Field Office CI File Numbers |
OIA Authorized Prior to Conversion of Source (Number of Days) |
OIA Authorized, but Source Never Converted |
OIA Description Not Sufficiently Specific |
OIA Retroactively Approved (Number of Days Retroactively Authorized) |
Total Number of Deficiencies |
|
|---|---|---|---|---|---|---|
| Field Office 1 | 8 | 1 | 1 | |||
| Field Office 1 | 9 | 1 | 1 | |||
| Field Office 1 | 10 | 1 | 1 | |||
| Field Office 1 | 11 | 1 | 1 (22) | 2 | ||
| Field Office 3 | 13 | 1 | 1 | |||
| Field Office 1 | 14 | 1 (154) | 1 | 2 | ||
| Field Office 6 | 7 | 1 | 1 (63) | 2 | ||
| Field Office 6 | 9 | 1 (63) | 1 | |||
| Field Office 6 | 11 | 1 | 1 | |||
| Field Office 6 | 15 | 1 (41) | 1 | |||
| Field Office 10 | 6 | 1 (45) | 1 | |||
| Field Office 12 | 8 | 1 | 1 | |||
| Field Office 12 | 10 | 1 (66) | 1 | |||
| Field Office 12 | 11 | 1 (129) | 1 (17) | 2 | ||
| Total | 4 | 2 | 7 | 5 | 18 | |
| Total Non-compliant Files | 14 | |||||
| Total Number of Files With OIA | 25 | |||||
| Percent Non-compliant Files | 56% | |||||
The FBI is required to notify either a U.S. Attorney or the head of a DOJ litigating component when a CI engages in illegal activity which was not previously authorized, known as unauthorized illegal activity or "UIA." CI Guidelines, § IV.B.1. The Confidential Informant Guidelines require that notice of the unauthorized illegal activity be provided by the Special Agent in Charge of the field office operating the CI to the U.S. Attorney or DOJ component head, not by subordinate FBI field office personnel to other U.S. Attorneys' Offices or DOJ personnel.
The FBI is not required to provide such notice when a state or local prosecuting office has filed charges against the informant for the illegal conduct, there is no clear basis for federal prosecution, and federal prosecutors have not previously authorized the CI to engage in Tier 1 OIA or been involved in an investigation that is utilizing the CI. Id.
Of the 120 informant files we examined during our review, we identified 12 instances, or 10 percent, where the CI engaged in unauthorized illegal activity. Under the Guidelines, the FBI was not required to notify the U.S. Attorney in 3 of the 12 cases.
In 4 of the 12 cases, the CI case files did not include sufficient information for us to determine whether charges had been filed by state or local prosecutors following arrest of the CI, and thus it was not possible to determine whether the Guidelines' notification requirement was triggered. Our review also found that neither the field nor FBI Headquarters typically monitors whether charges are filed by state or local prosecutors following a CI's arrest. We identified one field office that did not have any forms to record the occurrence of unauthorized illegal activity.222
The remaining five cases required notification to the U.S. Attorney's Office. In two of the five cases, the FBI failed to provide any notification to the U.S. Attorney's Office, in violation of the CI Guidelines. The UIA in these cases were a state arrest relating to purchasing heroin and a misdemeanor charge of manufacturing unauthorized records. The other three files contained documentation indicating that notice was provided to the U.S. Attorney's Office by FBI field personnel, but was not provided by the Special Agent in Charge to the U.S. Attorney as required by the Guidelines.
When a confidential informant is deactivated or closed, the Confidential Informant Guidelines require the FBI to maintain appropriate documentation in the CI's file of certain notifications to the informants and to FBI Headquarters and DOJ personnel. In our review of 46 informant files indicating that the informant had been deactivated, we found:
None of the 46 CIs who were deactivated was authorized at the time of deactivation to engage in OIA, so we had no findings on this issue.
As we discussed in Chapter Two, the significant revisions made to the Confidential Informant Guidelines in January 2001 changed the role of the U.S. Attorneys' Offices with respect to the approval and management of confidential informants.
To assist in determining whether the FBI is compliant with the Confidential Informant Guidelines' provisions that call for DOJ oversight, we surveyed the Chiefs of the Criminal Division in all 93 U.S. Attorneys' Offices throughout the country. Ninety-one Criminal Division Chiefs or their designees responded to our survey in February 2004. The results show that the Criminal Division Chiefs are overwhelmingly satisfied with the FBI's communication with them regarding confidential informants. The survey results included the following:
Detailed findings from our survey are presented in Appendix D. These results were one of the several areas in which the Criminal Division Chiefs indicated that the required interaction between FBI and DOJ personnel on informant matters is working well.
However, some of our findings and the results of our file reviews are in conflict with the Criminal Division Chiefs' positive assessment. As discussed above, in the course of our file reviews we identified Guidelines violations with respect to the required notifications regarding otherwise illegal activity, unauthorized illegal activity, and events surrounding the deactivation of confidential informants. We also identified two cases in which the FBI failed to obtain proper authorization from the U.S. Attorney with respect to Tier 1 OIA.
Moreover, the Criminal Division Chiefs indicated that they believe additional training for FBI Special Agents and supervisors and other measures are needed to promote adherence to the Confidential Informant Guidelines. Half of the Criminal Division Chiefs told us that the FBI and DOJ should sponsor periodic joint or cross-training with FBI agents and prosecutors. The following table describes the type of additional training they think is needed.
TABLE 3.5
Training and Other Measures Proposed by USAO Criminal Division
Criminal Chiefs to Promote Adherence to the
Confidential Informant Guidelines
| Response | Number | Percent | |
|---|---|---|---|
| a) Originating from FBIHQ | Provide standardized electronic forms related to the Confidential Informant Program (CIP) that can be completed online | 35 | 38% |
| Create a web site on the FBI Intranet displaying all current AG Guidelines with automatic e-mail notification of updates | 36 | 40% | |
| Consolidate all guidance related to the CIP (AG Guidelines, MIOG, ECs, and OGC training) and make available online at one Intranet web site | 49 | 54% | |
| Hold annual CIP Coordinator conferences on the AG Guidelines | 30 | 33% | |
| Other | 3 | 3% | |
| None of the above | 24 | 26% | |
| b) Originating from the Field Divisions | Provide additional trainng to Special Agents and Supervisors by the CDCs | 36 | 40% |
| Conduct informal field office reviews of confidential informants | 23 | 26% | |
| Have SAC/ASAC conduct file reviews with greater frequency | 8 | 9% | |
| Other | 1 | 1% | |
| None of the above | 44 | 49% | |
| c) Originating from the USAOs | Sponsor periodic cross-training within the District with experienced agents who regularly participate in the CIP program | 46 | 50% |
| Sponsor periodic regional cross-training with experienced agents who regularly participate in the CIP program | 22 | 24% | |
| Sponsor participation by experienced agents who regularly participate in the CIP program in all appropriate NAC courses that deal with confidential informants | 48 | 52% | |
| Other | 1 | 1% | |
| None of the above | 26 | 28% | |
| d) Originating from Main Justice | Periodically circulate to all FBI Field Office "lessons learned" from CIRC meetings and training sessions | 49 | 54% |
| Provided standardized letters of approval that can be completed online | 36 | 40% | |
| Other | 3 | 3% | |
| None of the above | 32 | 36% |
Human sources are critical to the success of the FBI's criminal investigative mission and of other law enforcement and intelligence efforts aligned with that mission, including the efforts to prevent terrorism and address other emerging national security threats. Our review focused on the FBI's implementation of Attorney General Guidelines for one category of human sources, confidential informants. The authorities and activities of other human sources, including assets and cooperating witnesses, are governed by different Attorney General Guidelines. Nor did our review examine how the FBI coordinates all of its human sources who, since November 5, 2004, have operated under the FBI's unified Directorate of Intelligence.225
The Confidential Informant Guidelines were revised in January 2001 largely in response to the adverse consequences arising from the FBI's operation of informants by its Boston Field Office and a few other informant problems in other offices. Some senior FBI officials and many field personnel we interviewed believe the revisions were an overreaction and that the resulting Guidelines have generated widespread resentment among field personnel. Nonetheless, there is widespread recognition by FBI personnel we interviewed that criminal informants are vital to the success of the FBI's criminal investigative mission, and that the challenge for the government is to appropriately weigh the informant's value against the risk that the informant will commit unauthorized crimes or otherwise prejudice the government, and to monitor and supervise the relationship closely.
FBI personnel ranging from new agents to the Director told us that agents find the paperwork associated with opening and operating informants to be excessively burdensome and time-consuming. In addition, personnel in HIU stated that the current version of the Confidential Informant Guidelines is phrased in dense "legalese" that is hard for case agents to absorb, remember, and follow. Although we were unable to quantify the precise impact of these issues, some of the field and Headquarters personnel we interviewed told us that some FBI agents are now reluctant to open informants because of these and other administrative and operational burdens.226 Others expressed concern that agents may shift toward operating "hip pocket" informants in contravention of FBI and Guidelines mandates so they will not have to complete the paperwork, obtain required approvals, or risk disclosing their informants' identities to prosecutors or others.
Our survey of Confidential Informant Coordinators revealed that the burden on case agents to complete the paperwork associated with the Criminal Informant Program is a major concern. Approximately 70 percent of the Coordinators reported that case agents fail to devote adequate time to completing their paperwork or resist doing so. In addition, as the following diagram illustrates, the paperwork burdens of operating informants is one of the most frequently raised issues in their field offices.
The view that the paperwork requirements associated with handling informants excessively burden field agents was also cited in our interviews of FBI Headquarters personnel from the Criminal Investigative Division, Counterterrorism Division, Office of Intelligence, and Inspections Division. FBI Director Mueller told us that he frequently hears agents complain about the "burdensome" procedures for opening and operating informants.
In contrast, 10 of the 12 SACs in the field offices we visited said they believe the CI Guidelines are workable as written.227 One senior field office manager said that "[t]he Guidelines are good, reasonable, and not a hindrance. They keep agents on track. Because of the Bureau's past fiascos, we need controls. Sometimes agents get sidetracked." Another senior manager told us that there was no excuse for agents in his office not to properly document compliance with the Informant Guidelines and that the Guidelines were not too complex. He stated that his informant program personnel complete the necessary documentation for the agents if asked and were prepared to answer any questions regarding the operation of informants. He characterized his agents as being "spoon-fed" on informant compliance issues. Notwithstanding the support available to agents in this field office, our review found that 100 percent of the informant files we reviewed in that office contained one or more Guidelines violations.
TABLE 3.6
Views of 12 FBI Senior Field Managers
on the Confidential Informant Guidelines
| Question | Yes | No | Don't Know |
No Response |
|---|---|---|---|---|
| - Are the CI Guidelines well understood in the field? | 10 | 2 | ||
| > Are the Guidelines workable? | 10 | 0 | 2 | |
| > Are the Guidelines too complex? | 6 | 5 | 1 | |
| - Is the paperwork needed to comply with the CI Guidelines and MIOG too cumbersome? | 8 | 4 | ||
| - Do agents complain about the CI Guidelines? | 9 | 0 | 3 | |
| - Do you think if Headquarters provided standardized forms like they do travel vouchers that could be completed on-line, it would make like easier and achieve better compliance? | 12 | 0 |
In the course of reviewing 120 informant files in 12 field offices, we were mindful of these concerns and sought to examine whether the reason for the complaints is the Guidelines themselves; other reasons that make compliance overly complex, time-consuming, and difficult; or a combination of these factors. After evaluating the requirements of the Confidential Informant Guidelines and how they work in the field, we share the view of the majority of SACs we interviewed that the Guidelines themselves are not overly burdensome. Instead, we believe that the significant reasons for non-compliance are:
Below we address each of these issues.
Our interviews, field office site visits, and analysis of documents produced by the FBI reveal that three years after the May 2002 revised Investigative Guidelines were issued, FBI agents do not have FBI-wide, standardized forms to support the administrative steps required to operate confidential informants. The FBI is capable of producing such forms; indeed, there is widespread use of automated forms throughout the FBI to support a host of administrative and operational programs.229 Nonetheless, in seeking approval for and operating informants, field agents in May 2005 still use hand-me-down forms (called "ponies") developed by either their field office or another field office. Some of these forms are out of date and some are under-inclusive or over-inclusive in what they require.230 In addition, field agents and supervisors routinely are transferred from one field office to another throughout their careers. Because of the different practices used by the FBI's field divisions to administer the Criminal Informant Program, transferred agents must make needless, time-consuming adjustments to the unique, sometimes outdated, requirements of their new offices.
The following table illustrates the wide discrepancies in data pertaining to Confidential Informant Guidelines' requirements that is collected in various forms maintained in 7 of the 12 field offices we visited.231
TABLE 3.7
Suitability Elements Missing from Initial Suitability Reports & Recommendations (ISR&Rs)
in Select FBI Field Offices
|
Complicating the agent's task even further is the fact that there is no one place on the FBI's Intranet where an agent who wants to initiate the registration of an informant can look for guidance regarding the approval and operation of CIs. During the period of our review, the current Confidential Informant Guidelines were available on the OGC's web site, an outdated version of the Informant Guidelines was on the Asset/Informant Unit's web site, the MIOG was on another FBI Intranet site, and agents had to search for forms on their field office's local computer system. Consequently, it is easy to understand the frustration expressed by field office personnel in explaining compliance deficiencies when it is so difficult for agents to find the various requirements, and standardized administrative tools are not available.
Another impediment to compliance with the Guidelines is the absence of a field manual comparable to the one provided for undercover operations by the Undercover and Sensitive Operations Unit (USOU), which we discuss in Chapter Four.232 Instead of having a useful document which captures the key Guidelines' and MIOG requirements for opening and operating informants, agents must depend on the initiative of their Informant Coordinators, Division Counsel, or other field personnel to obtain necessary paperwork and guidance in opening and operating informants. Several field offices, including Newark and Knoxville, have generated their own handbooks or manuals to fill this void. However, the best practices and time-saving devices that have evolved over the years in the field have not led to the development of a uniform field guide for all agents.233
Confidential file room analysts, whose role supporting the administration of all human sources is discussed above, play a critical role in assisting field agents in complying with the Guidelines. Some analysts have instituted tickler systems and other mechanisms to promote timely compliance. While this support is helpful, we believe the FBI needs an agency-wide, standardized system which can be accessed at Headquarters and in the field.
As noted in the FBI's response to the OIG's recommendations (provided in Appendix G), the FBI states that the Directorate of Intelligence (DI) has initiated a "re-engineering" of its Confidential Human Source Program. Because its internal human source policies, practices, and manuals must account for and comply with the Attorney General's Guidelines, the FBI enlisted DOJ to assist in the re-engineering effort. In December 2004, the FBI established a working group, including representatives from DOJ, to revise FBI policies regarding human sources (including confidential informants.) The working group's goals are to develop new guidelines, policies, and processes for the utilization of confidential human sources that are designed to reduce burdensome paperwork, standardize source administration procedures, clarify compliance requirements, and improve Guidelines compliance.
For example, Supervisory Special Agents (SSAs) are required every 90 days to conduct reviews of all confidential informant files, or, in the case of privileged informants, every 60 days. During this review, they are to note a variety of information, including Guidelines compliance deficiencies pertaining to payments, criminal history checks, authority to engage in otherwise illegal activity, and continuing suitability. MIOG § 137-4(3). We saw many instances where file reviews were not performed timely and deficiencies were not resolved promptly. In addition, we found some instances where the requests of the Informant Coordinator and/or SSA were not responded to by agents, as evidenced by repeated notations of non-compliance during file reviews. See also Chapter 7, Case Study 7.2 (describing conduct of SSAs in the San Francisco Field Office).
Beyond the general issue of timely compliance with the Guidelines, we believe, based on our field and Headquarters interviews and survey responses, that some field supervisors have historically failed to be as fully engaged as needed to identify risks associated with operating informants. Our findings with respect to supervisory approval and monitoring of "otherwise illegal activity" and notifications regarding the occurrence of unauthorized illegal activity are particularly notable in this regard.
With respect to otherwise illegal activity, as illustrated in Table 3.4 above, we found instances in which supervisors improperly authorized OIA prior to the source being converted to a registered informant (four files), authorized OIA for sources who were never registered as CIs (two files), retroactively authorized OIA in contravention of the Guidelines (five files), or authorized OIA which did not meet the Guidelines' specificity requirements (seven files). In each of these instances, field supervisors failed to exercise their responsibility to ensure that, as supervisors, they followed these Guidelines' provisions.
The FBI's Criminal Investigative Division (CID) has also expressed concern about non-compliance issues identified by the OIG in the course of this review. Personnel from FBI Headquarters' Asset/Informant Unit accompanied the OIG during our field office site visits from May to August 2004 and reviewed the same data we reviewed with respect to confidential informant files. On November 8, 2004, the Assistant Director of CID sent a candid self-assessment to all FBI field offices, the apparent purpose of which was to communicate the Division's conce