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Yeremey Zhdanov
Yeremey Zhdanov

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  • Special Report September 2005Office of the Inspector GeneralChapter Three: The Attorney General's Guidelines Regarding the Use of Confidential InformantsIn 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

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  • 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).155A 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.157Confidential 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.158The Benefits and Risks of Using Confidential Informants in FBI Investigations

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: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;"162approximately [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.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.164Many, 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.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.165Offsetting 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.166In 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.168Criminal 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.169Confidential Informant Case Study 1FBI Informants James J. "Whitey" Bulger andStephen J. "The Rifleman" Flemmi 041b061a72


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