What You should to with informants case
Posted in the Williamsburg Forum
#1 May 16, 2011
This will be long but interesting,
By Dennis G. Fitzgerald
The defense lawyer's perspective that law enforcement views its snitches as free agents, conveying to them near 007 status, is seriously flawed. That misconception may place you at a serious tactical disadvantage in the defense of your client.
Many police managers view informants as a necessary evil,1 time bombs waiting for the wrong moment to explode. The catastrophe that follows their detonation may include the death or serious injury of citizens,2 civil law suits and destroyed police careers.3 The Drug Enforcement Administration (DEA) reports that the "failure in the management of cooperating individuals constitutes, perhaps, the most obvious single cause of serious integrity problems in DEA and other law enforcement agencies."4
Law enforcement efforts to rein in both their informants and their agents have created a paper trail few defense attorneys have discovered. Known as the "Informant File," its contents may contain the detonator you can use to blow the government's case against your client out of the water.
The Informant File contains closely guarded information concerning the informant and his relationship with the government. At a minimum it should contain:
#2 May 16, 2011
A copy of his agreement to cooperate with the government
A debriefing report or an outline of what type of cases he might produce
His personal and criminal history
The amount of money paid to him for information and expenses
And if a defendant informant, what he might expect at sentencing in return for his substantial assistance.
The file can also hold internal memoranda prepared by the control agent documenting informant misconduct and deactivation known as "blacklisting." Either may have a devastating effect on the informant's credibility and may prove invaluable in the preparation of your case. When the reliability of an informant witness may be determinative of guilt or innocence, non-disclosure of evidence affecting the informant's credibility falls within the general rules of Brady.5 While the file may contain evidence adversely affecting the credibility of the informant,6 jurisdictions differ in how they respond to demands for the disclosure of its contents.7
#3 May 16, 2011
Law enforcement agents do not voluntarily surrender their informant's file. Some prosecutors are surprised when they learn of the file's existence. Those prosecutors who do know of the file are frequently ignorant about what it actually contains. Those prosecutors who are familiar with the file may vigorously resist disclosing its contents.
The defense attorney who recognizes the potential value that an informant's file holds still remains at a disadvantage without knowing exactly what the file contains. What follows is an examination of information that a "generic" informant file should hold. Armed with this knowledge, the defense attorney can request the confidential contents with some degree of specificity.8 Coupled with an aggressive investigation of the informant, counsel can then attempt to convince the court that the file information is subject to disclosure.9
The DEA, the FBI and Customs are the largest federal consumers of informant services. Federal agents and local law enforcement are equally dependent on informants. It is an unusual organized crime and/or drug case that does not involve informants.
#4 May 16, 2011
The defense bar usually describes informants as "snitches." Agents and officers may refer to their informants as "snitches" in conversations. However, in written reports and forms, informants may be described as "sources of information," or "cooperating individuals," etc.
Agencies not only use different terms for informants but many have sub-categories for their sources, each bearing different terms. This can be critical when drafting discovery demands10 for the informant file. For the purpose of this discussion the terms "confidential informant," or "C.I." will be used to describe persons who confidentially volunteer material information of law violations. These terms do not include persons who supply information only after being interviewed by police officers, or who give information as witnesses during an investigation.11 The informant is under the direction of a specific agent and furnishes information with or without expectation of compensation.12 The term "informant file" will be used to describe the file that contains all information produced by a law enforcement agency that pertains to a specific informant.
#5 May 16, 2011
Because of its extensive participation in multiple jurisdiction task forces since 1974, the DEA has greatly influenced state and local law enforcement's use of informants. Many of the DEA forms, procedures and filing systems have been adapted by local agencies and are frequently seen in state prosecutions.
Much of what follows is drawn from a recent FOIA release of the DEA Agent Manual section13 governing the informant file and its contents. Like a legal desk book, the volume is loose-leaf and subject to change and update. With few exceptions, the sub-chapter governing the format of the informant file has remained the same throughout DEA's 25 years of existence.
The informant file is generally kept by the law enforcement agency in a safe or a Mosler-style "combination entry only" file cabinet. Those individuals with the combination are generally command level personnel. The safe or cabinet when unattended is usually locked.
#6 May 16, 2011
Generally, informant files are segregated from all other investigative files. Access to the file is generally restricted to the informant's handling agent, supervisor or others who can show a legitimate need to inspect the file. Many agencies, including DEA14 have sign-out logs that record the date and time the file was removed and returned.
The sign-out/sign-in procedure, if followed by the agency, can be valuable to the defense attorney. This is particularly true when an informant is suspected or alleged to have committed a violation of agency procedure or law. Some agency manuals only require periodic supervisory review on either a monthly or quarterly basis. A flurry of supervisory sign-outs or access to the file by agency internal affairs investigators could signal extraordinary attention being paid to a particular informant's misconduct. When you discover extra scrutiny being paid to the C.I. it can certainly expand your witness list. Your subpoenas will also create a stir within the agency. Supervisors and internal affairs investigators do not like to testify and are usually poor witnesses for the government.
#7 May 16, 2011
Code Numbers and Names
The primary method used to keep an informant's identity confidential is to assign him a code number or a code name. The code number system is more common but some agencies issue both.
The number or name is used in both investigative reports and internal memoranda that document the informant's activity. Receipts for payment made to the informant for information and expenses will also bear the code number and may be signed by the informant with his code name. Agencies that use both code names and numbers do so for security and as a matter of convenience in dealing with their sources. The code name allows the informant to telephone his agent handler's office and leave messages without giving his real name. Keeping the informant's identity a secret from others in the police department or agency is a routine practice.
The code number can provide the defense with some valuable information about the informant. The numbering system historically used by DEA will immediately tell what year the informant was recruited. As an example, informant number SGB-89-X001 was recruited early in 1989. He was the first informant (001) documented by the respective DEA office. The letters that precede the year yield less obvious and more difficult to decipher clues. The code number always starts with S, the second and third characters are the designators of the establishing office. If an X appears in character six it indicates a DEA state or local task force established the informant.15 DEA recently realized the value of the informant number to the defense and has begun redacting informant code numbers from investigative reports.
#8 May 16, 2011
In a recent major smuggling investigation, I demonstrated the number's value to the defense attorney. A case was developed in Phoenix, Arizona in 1995 through the efforts of informant SGB-89-X001. He maintained a Miami Field Division (G), Ft. Lauderdale, Florida Resident Office (B) informant number and the two digits, 89. In essence the code number told the attorney who the informant was. His client had conducted legitimate business with a Ft. Lauderdale export company executive prior to his arrest. It also told us to expect an informant with a long track record of use, dating back to at least 1989. The X indicating a DEA Task Force told me that the informant was probably recruited by a police officer participating in the DEA Task Force. Police officers routinely violate DEA procedure for handling informants and that was the case here. In a trial by ambush jurisdiction, that small amount of intelligence information contained in the informant's code number seemed like a windfall
#9 May 16, 2011
Most law enforcement agencies use a form to fully identify their informants and document their criminal histories. Some of the forms resemble arrest reports, others are as complete as an application for employment. Comprehensive documentation also serves to verify the existence of the source to prosecutors and police managers. Instances of police officers creating rather than recruiting informants have been occurring for decades.16 The non-existent informants provide extremely accurate information to support the issuance of search warrants.
Again, DEA has had a dramatic impact on the practices employed by state and local police departments. Many police agencies have adopted the same documenting format used by DEA, either in part or in whole.
#10 May 16, 2011
DEA's Confidential Source Establishment Report17 contained in the Informant File is DEA Form 512. The form has over 60 boxes that require the agent to obtain information from and about a prospective informant. Beyond name, date, place of birth, Social Security number and address, it also requires that the informant's criminal history be fully investigated. Form 512 contains useful information for trial strategy, particularly if the informant has committed crimes the government knows about that would affect his credibility at trial.
The C.I. is also fingerprinted and an "Inquiry Only" request is sent to the FBI for fingerprint information. The purpose of the query is to determine whether there is anything in the informant's criminal background that would preclude his being used as an informant. DEA has been embarrassed before. In one case, agents unwittingly used an informant who was responsible for two murders.18
#11 May 16, 2011
The DEA Manual and the Informant Establishment Report require more than a routine background check and "running the informant's fingerprints." The NCIC,19 Computerized Criminal History (CCH) and Interstate Identification Index (III) files must also be queried. The check is based upon the informant's FBI number. If the informant was born before 1956, and the CCH and III files are negative, a Request for Criminal Records (DEA Form 105) must also be sent to the FBI Identification Division. There could be a manual arrest record that may not have been indexed.20 The results of the criminal check are entered on the Informant Establishment Report.
DEA requires that its own computer system, NADDIS21 be checked. Every name ever indexed on a DEA investigative report22 is entered into the computer. An INTERPOL23 check is also required. A box documenting the date when inquiries were completed is also provided on the form.
#12 May 16, 2011
With the guidance of a clearly stated informant documentation process, an investigator is hard pressed to explain in court why he did not check the C.I.'s criminal history. The investigator handling an informant with a long history of violent crime is clearly placing himself in unnecessary danger. Moreover, an informant convicted of crimes showing dishonesty or perjury could also taint any future testimony he might offer at trial28 wasting valuable time and money for both the court and the law enforcement agency. The defense attorney should be aware that the FBI and some other agencies do use informants with incredibly violent pasts.29
Defense attorneys must aggressively investigate the informant witnesses' background and conduct during the investigation of the client. Although costly and often time-consuming, it may be the only way to effectively undermine the credibility of the informant witness at trial.
The client may hold the key to his own defense. Your thorough debriefing conducted soon after your client's arrest may develop valuable leads for your investigator to follow.
#13 May 16, 2011
The Informant Agreement outlines what cooperation the prosecutor or police expect from the informant. It will also state what the informant can expect in return for that cooperation.
The informant file maintained by the police department or federal agency will usually only contain agreements between the control agent and the informant. It will be signed by the control agent, the informant and usually one witness. Although agreements between the prosecutor and the informant may exist, they do not necessarily find their way into the informant's file maintained by the law enforcement agency. Those agreements are generally retained in the prosecutor's file.
Informant Conduct Agreements contain the rules which an informant must follow while working for the police. The agreement may be referred to by another name but it is usually no more than a list of behavior strictly prohibited by the police. Some police agencies have gone to the extent of preparing a list of as many as 25 "thou shalt nots" for the informant including not to carry a firearm, not to violate the law and not to represent himself as a law enforcement officer. It should not be confused with the Informant Agreement or contract that outlines what cases are expected from the informant and what he may expect in return for his cooperation.
#14 May 16, 2011
DEA's agreement is contained in DEA Form 473. It contains:
C.I.s shall not violate criminal law in furtherance of gathering information or providing services to DEA, and that any evidence of such a violation will be reported to the appropriate law enforcement agency.
C.I.s have no official status, implied or otherwise, as agents or employees of DEA.
The information they provide may be used in a criminal proceeding, and although DEA will use all lawful means to protect their confidentiality, it cannot be guaranteed.
It is a federal offense to threaten, harass, or mislead anyone who provides information about a federal crime to a federal law enforcement agency. Should they experience anything of this nature as a result of their cooperation with DEA, they should contact their controlling agent immediately.
Informants sign DEA Form 473 acknowledging that he/she has read and agrees to the listed conditions. His/her signature and the date are witnessed by two agents. Should a cooperating individual refuse to sign the DEA Form 473, the following statement is entered on the form, and is signed and dated by two agents: "On (date),(C.I. Number) was advised of and agreed to the conditions set forth on this form.(C.I. Number) refused to sign." The DEA-473 is placed in the appropriate C.I. file.30
#15 May 16, 2011
Informants usually possess a variety of criminal intelligence. It is the duty of the control agent to extract as much information from the informant as possible. The process at DEA is known as "debriefing."31 Information learned from the informant is contained in a report prepared by the control agent, usually entitled "Debriefing of Informant #" and is memorialized in a DEA 6 investigative report.
Agencies differ in what they do with information learned during a debriefing about crime that is outside of their area of responsibility. The "written rule" in most law enforcement agencies is to pass the information on to the proper jurisdiction or agency charged with enforcing a particular law. It is not unusual, however, for an agent to keep the information to himself or within his agency if he believes that divulging the data could compromise the informant's identity. The FBI is generally regarded by local law enforcement officers as a "one-way street" when it comes to sharing information. They take information but seldom return the favor. The FBI has provisions in its own manuals that allow them to withhold information from local police about crimes that either have been committed or are planned for the future.32 The FBI does not necessarily report crimes committed by their informants that occur outside "the line of duty" if the disclosure will compromise their informant's identity.
#16 May 16, 2011
If you are able to obtain the debriefing report during discovery, you may well find that the police ignored "big fish" and went after your "little fish" client. If your client is not mentioned in the initial debriefing report, he may truly be a victim of a "fishing expedition" by the informant. This is particularly likely to happen with defendant informants. They must produce bodies in exchange for their freedom and are not enthused at the prospect of turning in friends if there is any alternative. They certainly like to avoid providing evidence about their true source of supply if he is their only source of drugs
#17 May 16, 2011
Although rare, some defendants have no one to give up and they must go out and make a case from scratch. Check the court file to see if the government has asked for seemingly needless continuances of the defendant informant's criminal case. Those continuances could be at the urging of the informant handler to buy time for his C.I. to produce a case. Check if your client's arrest was close in time to the defendant informant's sentencing date. Your client's case may have held the key that opened the jail house door for the snitch.
In one case I assisted in, the defendant informant worked on our client for months without getting him to deliver drugs. As the date of the snitches' sentencing came closer, his efforts to draw the client into a criminal case became increasingly desperate. The video of our client's arrest showed the informant literally throwing the "buy money" at the defendant when the client attempted to withdraw from the conspiracy. The informant's long distance telephone bill showed many calls to the client at all times of the day and night. Many of the calls were not taperecorded.
#18 May 16, 2011
My investigation showed that the state had requested two continuances in the case. We also obtained a copy of the Informant Agreement that gave the snitch 90 days to produce three prosecutable cases. In return, the state agreed to recommend probation at his sentencing. The client's arrest was on the eve of the agreement's due date.
The truly mercenary money motivated informant may also find himself running out of targets. No defendants equals no money, so he will become creative in his efforts to deliver bodies. Any of the above situations provide ripe opportunities for the defense attorney to explore an entrapment defense
#19 May 16, 2011
Some agencies require that a formal statement be taken from the informant if he has provided information or has participated in an activity in which he may be required to testify.33 The informant is usually told by his control agent that the statement will serve as his "report" of what occurred. It should be taken immediately or soon after the police activity and should be a fresh recollection of what the informant saw, heard, and said. In reality, the procedure is a precaution the agency takes in the event the informant decides to deny his role in the investigation. It is not always followed. Some informants refuse to sign a statement. DEA has a provision "where taking a statement may adversely impact an investigative outcome, the procedure may be waived if all relevant information is reported in a DEA 6"34 investigative report
#20 May 16, 2011
Very often the statement is prepared by the control agent for the informant's signature. There is seldom an ulterior motive for this method of obtaining the statement. Many informants have difficulty in verbalizing a complete sentence let alone writing their own statements. Some can't read and have no idea what they have signed. When it comes down to "sign or no money" they will generally sign anything. The signed and witnessed statement is then usually placed in the informant file with other internal memoranda pertaining to the informant.
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