In order to facilitate the processing of a request by a
government
attorney for a witness's acceptance into the Witness Security
Program, OEO's
Witness Security Unit has designed an application form that
requests the specific
information needed to support the request. This form requires a
summarization
of the testimony to be provided by the witness and other
information evidencing
the witness's cooperation, the threat to the witness, and any risk
the witness
may pose if relocated to a new community. Government attorneys may
obtain
application forms and instructions concerning a witness's entry
into the Witness
Security Program (the Program) from the:
Witness Security Unit
Office of Enforcement Operations, Criminal Division
U.S. Department of Justice
P.O. Box 7600
Washington, D.C. 20044-7600
or call OEO at (202) 514-3684.
Much of the above information is mandated by the Act,
which requires
the Attorney General to obtain and evaluate all available
information regarding
the suitability of a witness for inclusion in the Program. This
information must
include threats against the witness, the witness's criminal
history, and a
psychological evaluation for the witness and each adult member of
the household
(18 years and older) that will be entering the Program.
Additionally, the
Attorney General is required to make a written assessment of the
risk the witness
and his/her adult family members may present to their new
community. Factors
which must be evaluated in the risk assessment include, but are not
limited to,
criminal record, alternatives other than Program protection which
have been
considered, and the possibility of securing the testimony from
other sources.
If it is determined that the need for prosecution of the case is
outweighed by
the danger that the witness or adult family members would pose to
the relocation
community, the Attorney General is required to exclude the witness
from the
Program.
Prior to Program authorization, witnesses will be required
to make
payment of any known debt for which there is a valid judgment, or
make
satisfactory arrangements to pay the debt; to satisfy all
outstanding criminal
and civil obligations (e.g., fines, community service,
restitution); to
provide appropriate child custody documents; and to provide
appropriate
immigration documents, as necessary. In addition, as a condition
of
authorization into the Program, the Department may, at its
discretion, notify
local law enforcement of the presence of the witness in the
community and his or
her criminal history; mandate random drug or alcohol testing and/or
substance
abuse counseling; and set other conditions believed to be in the
best interests
of the Program.
To avoid any unnecessary delay in processing a Program
application,
government attorneys should note the following:
- In order to make certain that each application for
entry of a
witness into the Program is both appropriate and timely, the
witness should,
prior to his/her acceptance into the Program, either appear and
testify before
the grand jury or in some other manner have committed
himself/herself to
providing testimony at trial. This requirement relates to the
commitment of the
witness to testify, and is intended to ensure that the witness's
testimony is
available at the time of trial. It is equally as important a
requirement that
the prosecutor intend to have the witness testify, and that the
witness's
testimony be significant and essential to the success of the
prosecution.
- The protection and relocation of witnesses and family members
are expensive
and complicated. In addition, DOJ is obligated to provide for the
safety and
welfare of a protected witness and family members long after the
witness has
testified. It is imperative, therefore, that the request for entry
of a witness
into the Program be made only after the sponsoring attorney has
determined that
the witness's testimony is significant and essential to the success
of the
prosecution, as well as credible and certain in coming.
The safety/security of an informant assisting in an
investigation is
the responsibility of the investigative agency utilizing the
informant. An
informant is only eligible for participation in the Witness
Security Program if
he/she is also a bona fide witness as defined in 18 U.S.C. 3521,
et seq.
Please note that merely requiring an informant to testify
with the
intent that he or she might become eligible for the Program is not
sufficient
qualification. He or she must still meet the requirements of being
a significant
and essential witness.
Prisoners in a State or Federal institution are eligible
for
participation in the Witness Security Program provided all other
criteria are
met. If the prisoner is in State custody, the State must agree to
the prisoner
serving his/her sentence in the custody of BOP. The application
should be made
as prescribed for other witnesses; however, because there is no
assessment of the
risk to the public unless a witness is to be relocated in the
community, there
is also no need for a psychological evaluation nor an assessment of
the risk to
the public (normally submitted by the sponsoring attorney or
investigative
agency). No preliminary interview is conducted by the USMS until
the prisoner
is between six to nine months from release and is being considered
for the full
services of the Program - including relocation. If application is
being made for
the prisoner's family to be relocated while the prisoner is
incarcerated,
psychological evaluations and risk assessments are needed for all
adult family
members, and it must be demonstrated that there is no alternative
to placement
of the family in the Program at that time.
The Witness Security Reform Act of 1984 authorizes the
Attorney General
to provide protection to State and local witnesses. If such a
request is
received, the State is asked to reimburse the United States for
expenses incurred
in providing protection, and to enter into an agreement in which
the State agrees
to cooperate with the Attorney General in carrying out the
provisions of the
Witness Security Reform Act. The terms of the reimbursement
agreements will be
determined by the USMS. If the State or local witness is under
State or local
supervision, the supervising agency must agree to transfer
jurisdiction and
supervision to Federal supervising authorities, prior to the
witness's acceptance
into the Witness Security Program.
Requests from State or local authorities should be
directed to the
appropriate United States Attorney and should contain all of the
information
normally required in a Federal witness's Witness Security Program
application.
The United States Attorney should review the application and
furnish his/her
recommendation to OEO for consideration.
The Witness Security Reform Act provides that the Attorney
General may
delegate the authority to place individuals into the Witness
Security Program to
the Deputy Attorney General, the Associate Attorney General, the
Assistant
Attorneys General of the Criminal and Civil Rights Divisions, and
one other
person. By Attorney General Order No. 1072-84, the Attorney
General has
specially designated those individuals named above and the OEO
Senior Associate
Director to authorize applications for witnesses or prospective
witnesses to be
admitted into the Program. In the absence of the OEO Senior
Associate Director,
the OEO Director is authorized to exercise this authority.
Protection of a witness for whom relocation is being
requested remains
the responsibility of the sponsoring investigative agency until
such time as (1)
OEO has reviewed the application and all other relevant information
(including
the results of the psychological examination), (2) OEO has approved
admission of
the witness into the Witness Security Program, and (3) the USMS has
had the
opportunity to arrange the safe removal of the witness and his/her
family.
If it is determined that a witness is in imminent danger
of harm and
the investigative agency is not able to provide the necessary
protection,
emergency Program protection may be authorized by OEO and provided
by the USMS
before completion of the written risk assessment and all parties
have entered
into a Memorandum of Understanding. However, before this emergency
protection
can occur, the USMS must first conduct a preliminary interview
(see USAM 9-21.300) to ensure that there
are no
obstacles to temporary relocation. The assessment and Memorandum
of
Understanding must be completed as soon as practicable following
the
authorization for emergency protection.
Upon receiving a Witness Security Program application, OEO
will arrange
for the USMS to interview the prospective witness as part of the
application
review process. Because of the need for this preliminary
interview, it will be
necessary for OEO to receive the application for the witness's
participation in
the Program as soon as it is clear that the individual (1) is an
essential
witness, (2) is endangered, and (3) will need to enter the Program.
This USMS's
"Preliminary Interview" is designed to provide the witness with an
overview of
Program guidelines and the services that the witness can - and
cannot - expect
to receive. It will also ensure that all parties involved are
aware of the
issues which need to be resolved prior to Program authorization and
relocation.
The USMS will coordinate the preliminary interview
directly with the
prosecutor or agent. The USMS requires that a copy of the
application and threat
assessment be provided to it prior to, or at the time of, the
scheduled
interview. Before providing a copy of the threat assessment, the
agent should
contact his or her headquarters Witness Security Program contact
concerning any
special instructions.
Investigative agents and government trial attorneys are
not
authorized to make representations to witnesses regarding funding,
protection,
or other Witness Security Program services, including admission
into the Program.
Representations or agreements, including those contained in plea
agreements,
concerning the Program are not authorized and will not be honored
without
specific authorization from OEO.
Any expenses incurred by investigative agencies or
divisions for
witnesses and/or their dependents prior to authorization into the
Witness
Security Program and pickup by the USMS are the responsibility of
the concerned
agency or division.
Before authorizing any witness to enter the Witness
Security Program,
OEO will arrange for psychological testing and evaluation for each
prospective
witness and all adult (18 years of age and older) members of the
witness's
household that are also to be protected. This testing will, to the
extent
possible, determine if the individuals may present a danger to
their relocation
communities. Because the reports of the psychologists may contain
information
that is discoverable as potentially exculpatory Brady
material in the
criminal prosecution in which the witness is to testify, all
materials submitted
by the psychologists will be forwarded by OEO to the appropriate
United States
Attorney's Office (USAO) for review.
Before undergoing psychological evaluation, the witness
must sign a
release form authorizing
the Department to use the results of the psychological evaluation
to the extent
necessary in connection
with the witness's application for acceptance into the Program or
for other
lawful uses. The release
form is contained in the Criminal Resource
Manual at
710. It is the responsibility of the sponsoring prosecutor or
agent to have
the witness sign the form prior to the evaluation.
A polygraph examination is required of all Witness
Security Program
candidates who are incarcerated in order to maintain the security
of those
individuals who are now, or will be, housed in a BOP Protective
Custody Unit.
Authorization for the Program may be rescinded or denied if the
results of the
polygraph examination reflect that the candidate intends to harm or
disclose
other protected witnesses or disclose information obtained from
such witnesses.
The prisoner-witness Program candidate will be expected to
sign the
polygraph examination
form acknowledging voluntary submission to the examination. The
witness's
release form authorizes
the Department to use the results of the polygraph examination to
the extent
necessary in connection
with the witness's application for acceptance into the Program or
for other
lawful uses. It will be the
responsibility of the prosecutor/agent to advise the Witness
Security candidate
of this requirement prior
to submitting the Program application to OEO. Depending on the
location of the
witness and other
pertinent factors, the prosecutor/agent or BOP will be asked to
disseminate the
form to the prisoner.
The Polygraph Examination Release Form is contained in the Criminal Resource Manual at 711. After an
individual has
been polygraphed, the examining authority will prepare and submit
a report to
OEO.
Requests for protection of witnesses must be made as soon
as it is
known that the Witness Security Program candidate will be a
significant and
essential witness and will need relocation. Because of security
concerns
regarding the witness and his/her family, a witness's pending or
actual
participation in the Program is not to be publicly disclosed
without the
prior authorization of OEO. It is incumbent upon each USA,
Assistant United
States Attorney, and the investigative agencies to present to OEO
at the earliest
possible time the request for authorization to place an individual
in the
Program. This will allow time for the USMS preliminary interview,
psychological
testing, appropriate review, and the actual preparation of
assistance by the USMS
and/or BOP, thereby minimizing the disruption both to the witness
and the
concerned government agencies.
United States Attorneys and Criminal Division Attorneys
should transmit
requests (applications) to OEO. Communications should be addressed
to the Chief,
"WSU," OEO, P.O. Box 7600, Washington, D.C. 20044-7600, or sent by
fax to OEO at
(202) 514-5143. (For security reasons, documents containing
sensitive
information are not to be e-mailed to OEO.) Program requests must
be signed by
the USA or, in the USA's absence and pursuant to 28 C.F.R. Sec.
0.131, the Acting
USA. In cases being handled by the Criminal Division, the
appropriate Division
Section Chief/Office Director must sign the request. All other
divisions,
agencies, and entities applying for Program use must contact OEO
for application
information and directions.
For a list of the required information in these requests,
see
the Criminal Resource Manual at 701.
Upon the submission of a Witness Security Program
application for an
illegal alien, the sponsoring attorney and/or investigative agency
must obtain
from the Immigration and Naturalization Service (INS) appropriate
documents which
authorize the prospective witness and family members to remain in
the United
States and facilitate relocation by the USMS out of the State in
which they
registered. Program candidates who are illegal aliens cannot be
relocated by the
USMS until all INS requirements are satisfied and necessary
documents have been
provided to OEO or the USMS. In cases where the INS procedure to
legalize the
alien's status may require a lengthy time period, the sponsor or
agent should
secure from INS a letter of intent to change the witness's status
as part of the
requirements for relocation under the Program. Excludable alien
witnesses who
do not need the protective services of the USMS, but who need to
remain in the
United States, should have their sponsoring government attorneys
apply for S Visa
classification (see USAM
9-72.000 S
VISA Program) instead of seeking assistance from the Witness
Security Program.
When it has been determined that a witness is a suitable
candidate for
the Witness Security Program, the witness and his/her adult family
members that
are to be protected will be asked to sign a Memorandum of
Understanding. The
USMS is obligated to satisfy each commitment documented, as long as
the witness
remains in good standing in the Program, and the USMS will not be
required to
provide amenities or services not included in the document. The
witness will
likewise be obligated to satisfy his or her documented
commitmaccompany the
completed form.
The Criminal Resource Manual contains further
information on this
topic
- Non-Program Cooperating Prisoners (not
in, or to
be placed in, the Witness Security
Program). The prosecutor handling a case, whether an
Assistant United
States Attorney or a Division
attorney, will be responsible for notifying the BOP regional office
that has
jurisdiction over the area in
which a Federal prisoner is incarcerated and the warden of the
institution in
which the prisoner is
incarcerated of the prisoner's cooperation with the government, and
the
names/descriptions of other
prisoners from whom that person should be separated. If the
prisoner is in state
or local custody,
notification should be made to the highest level official possible
of the
facility in which the prisoner is
incarcerated, and, if it is a Federal prisoner in local custody,
the United
States Marshals Service and the
Bureau of Prisons Community Corrections Manager in the prisoner's
sentencing
district.
- The prosecutor must provide BOP the following information:
- Name of offender;
- Date of birth;
- Race and Sex;
- Whether State or Federal prisoner (if State, indicate whether
reimbursable
or non-reimbursable);
- Current offense;
- Current sentence (and judge's name);
- FBI rap sheet;
- Outstanding warrants or detainers;
- Names of all those from whom witness should be separated,
biographical data,
FBI numbers, and current locations;
- Pre-sentence investigation and/or prison classification
material;
- Judgment and Commitment papers; and
- Bail bond status.
- Witness Security Program
Prisoner-Witnesses. As soon
as the prisoner begins cooperating, if the prisoner is in BOP
custody, the
prosecutor or investigative agency will be responsible for
notifying officials
at the institution in which the witness is incarcerated of his/her
security
needs, to ensure that appropriate
security precautions are taken prior to possible acceptance in the
Program. This
information should include
the names of individuals and groups from which the prisoner should
be separated
and the level of danger
to the witness. Any special requirements, such as being
transported alone,
should be communicated also.
If the prisioner is in state or local custody, the prosecutor or
investigative
agency is responsible for making
appropriate arrangements for the prisoner's security by contacting
the highest
level official at the institution
in which the prisoner is incarcerated, and providing the
information described
above. If the prisoner is
a Federal prisoner in local custody, the United States Marshals
Service and the
Bureau of Prisons
Community Corrections Manager in the prisioner's sentencing
district should be
advised as well. Once
the Program application is submitted, OEO will notify BOP of the
application, so
that, if the prisoner is
in BOP's custody, whatever additional security measures are
necessary can be
taken. OEO will consult
with the prosecutor concerning whether the prisoner should be
placed in
administrative detention for
security reasons, whether there is any objection to arranging the
Program
polygraph examination
immediately, and whether there is any objection to arranging BOP's
precommitment
interview (similar to
the USMS's preliminary interview).
- BOP has advised that because of the extraordinary
difficulty in
determining the appropriate
institution for the safe housing of a prisoner-witness, it is
imperative that
they be furnished the name,
alias, DOB, FBI#, race, sex, ethnic origin, offense/charge and any
other
pertinent factors, such as state
of appeal, fugitive escape, non-incarcerated, etc., on all persons
who have been
identified as posing a
threat to the witness.
Compliance in providing this information is essential,
regardless of
whether the prisoner will be housed
in a Protective Custody Unit (PCU) or in the general population of
a Federal
institution, as it will enable
BOP to adequately monitor the separation needs of protected
prisoner-witnesses.
The information must be provided to BOP at the time witness
security is
being requested for a
prisoner-witness in accordance with the other provisions of this
Chapter.
- Requests to house prisoner-witnesses in a PCU must be
directed to,
and approved by, OEO.
- Interviews of a prisoner-witness by prosecutors or agents
must take
place at the prisoner's
designated institution, and must be arranged through OEO. Requests
must be made
at least five (5)
working days in advance, and must include the purpose, date, and
estimated
duration of the interview,
and name of contact person (if other than the requestor), as well
as the name of
each person (noting
USAO/agency) to attend the interview.
Requests for the appearance of a relocated witness for
trial or
pre-trial conferences and interviews in
the case for which the witness entered the Witness Security Program
should be
made by the prosecutor to
the Witness Security Inspector of the USMS in the prosecutor's area
at least
ten (10) working days in advance of the appearance
date.
Requests should include the following: purpose of appearance,
date/time,
place, estimated duration of appearance, and, if applicable, name
of contact
person (if other than the requestor). Investigative agents should
make requests
for interviews of a relocated witness for cases other than the
Program case
through authorized agency channels for approval by OEO. Requests
should include
purpose, date, and estimated duration of the appearance, and, if
applicable, any
other persons to be present in addition to the requestor. OEO will
forward
approved requests to the USMS or to BOP (whichever is appropriate).
Communications should be addressed to the Chief, "WSU,"
Office of
Enforcement Operations, P.O.
Box 7600, Washington, D.C. 20044-7600. In case of emergency, you
may contact OEO
by phone at (202)
514-3684. In order to conserve the USMS's personnel resources,
emergency
requests should be avoided.
Prosecutors and investigative agents will be requested to
conduct
conferences or interviews of relocated witnesses at neutral sites,
or, for
prisoner-witnesses, at the prisoner's assigned BOP facility, which
will
substantially reduce the personnel requirements of the USMS. The
USMS will
determine the location of
all "neutral sites" for relocated witness interviews, and will
advise the
requestor directly.
It will be the responsibility of the prosecutor and the
investigative
agents to ensure that maximum use
is made of the witness's appearance in the danger area. In the
interests of
security and limiting the
expenses involved, the witness must be returned to the relocation
area or
designated facility as soon as
practicable.
A witness, having entered the Witness Security Program,
maintains an
ongoing relationship with DOJ.
Even after subsistence allowances and other support are terminated,
the residual
relationship requires that
investigative agencies and attorneys observe certain restraints in
dealing with
these persons in connection
with investigations and/or new cases.
The consent of OEO is required before any of the following
persons may
be used as an informant: a
currently protected witness, anyone relocated because of a
witness's cooperation,
or a former protected
witness.
The information that must be supplied to OEO for its use
in evaluating
requests to use anyone as an
informant who has received protective services through the Program
can be found
in the Criminal Resource Manual at 702.
After a request for use of a witness currently in the
Program has been
granted, OEO requires that status
reports be filed with it after the first 45 days of use, and,
thereafter,
quarterly during the length of such
use. Status reports will not ordinarily be required for witnesses
no longer in
the Program. In addition to
the above, any case involving the use of video surveillance and/or
consensual
monitoring must comply with
the requirements of USAM 9-7.000
et seq.
The USMS is authorized to provide for the maintenance and
housing of
protected witnesses whenever
they appear for trial, pre-trial conferences, or return to a danger
area for
other appearances approved by
OEO. The USMS is authorized to pay for the costs of travel and
other associated
maintenance expenses.
Attorneys should not prepare "Fact Witness Certificates," and Fact
Witness fees
and allowances should not
be disbursed to protected witnesses who are under the protection
and maintenance
of the USMS.
(Witnesses who voluntarily withdraw from participation in the
Witness Security
Program are exempt from
this restriction.)
OEO must be advised of the payment of any reward monies to
Witness
Security Program participants.
The appropriate investigative agency headquarters must provide a
written report
of such payments reflecting the reason(s) for the payment and the
fact that the
prosecuting attorney has approved the payment. Payments to
relocated witnesses
must be sent to the Chief, Witness Security Program, Judicial
Security Division,
U.S. Marshals Service, 600 Army/Navy Drive, Arlington, Virginia
22202-4210.
Payments to prisoners must be sent to the Assistant Administrator,
Inmate
Monitoring Section, Bureau of Prisons, 320 First Street, N.W., Room
524,
Washington, D.C. 20534.
All documents relating to a protected witness or an
individual
nominated for protection will be accorded
special handling to ensure disclosure on a strict "need to know"
basis. All
documents should be marked
with the security designation "Sensitive Investigative Matter."
All court
matters discussing a Witness
Security Program participant, i.e., prisoner litigation, child
custody, etc.,
must be filed under seal.
The area of relocation should be known only to the USMS,
and must not
be made known to the case
attorney or agent, or their staffs. All contact with the witness
should be made
through OEO or the USMS
Witness Security Inspector as detailed in USAM
9-21.700. The witness should be instructed to keep secret the
area of
his/her relocation and all associated matters.
Calls concerning a protected witness placed during
non-business hours,
weekends, and holidays should first be directed to the OEO duty
officer through
the Justice Command Center.
All requests for information related to any aspect of the
Witness
Security Program should be handled
as follows:
- Requests by members of Congress or their staffs
shall be forwarded
to the DOJ Office of Legislative
Affairs which, in turn, will refer the requests to OEO for
processing;
- Requests by the news media or the public should be referred to
the DOJ Office
of Public Affairs;
- Other inquiries not covered herein should be referred directly
to OEO.
Once a witness has been accepted into the Witness Security
Program,
even if the witness is no longer
in the Program, he or she will receive protection in the courtroom
for testimony
in the case or cases for which the witness entered the Program. If
the witness
is no longer in the Program, but not living in an area considered
to be dangerous
to them, the USMS may also produce them for the testimony. If
there is clear
evidence that a witness who has had their participation in the
Program terminated
is in immediate jeopardy arising out of the former cooperation,
through no fault
of the witness, the need for further protective services will be
evaluated, and
provided, if appropriate.
See the Criminal Resource
Manual at
709, for a discussion of this issue.
OEO is responsible for the collection and maintenance of
the results
of the testimony provided by
protected witnesses. Therefore, it is essential that prosecutors
provide the
following information to OEO
as soon as it becomes available:
- Name of witness;
- Name of case;
- Jurisdiction;
- Did the witness testify before grand jury? Trial? If so,
provide the dates.
If the witness did not testify, explain why;
- Status of witness in case (defendant, unindicted
co-conspirator, prisoner,
victim, other);
- Names of all defendants;
- Statutory violations charged;
- Date of indictment;
- Date of conviction;
- Disposition of the case as to each defendant;
- If convictions, details of sentence imposed on each defendant,
including
fines levied, restitution, etc.;
- Any information as to significant forfeitures or seizures
accomplished
because of witness's assistance;
and
- Any information as to contributions made by this witness to the
overall law
enforcement effort -
Federal, State, and/or local, - in your district and elsewhere; for
example,
furnishing probable cause for
Title III's, search warrants, locations of fugitives.
Without the cooperation of prosecutors in assembling this
information,
it is impossible to demonstrate,
through statistics and anecdotal case information, that the Witness
Security
Program is vital to the
successful prosecution of significant cases. Congress's interest
is high in
obtaining statistics relating to the
effectiveness of the Program. This information is used by Congress
to set the
level of funding for and to
determine the continued viability and long range existence of the
Program.
Pursuant to the provisions of 18 U.S.C. 3525, the Victims
Compensation Fund has been established to compensate victims of
certain
crimes committed by participants in the Witness Security Program.
In
general, the fund will, up to a statutory limit, cover expenses for
medical and/or funeral costs and lost wages that are not
reimbursable
from any other source. OEO has been delegated the authority to
administer the operations of the fund and should be contacted if
information about the fund and the payment of claims is
needed.
| October 1997
| USAM Chapter 9-21
|