9-21.010
Introduction
The purpose of this chapter is to provide information and
guidance to Department of Justice (DOJ) attorneys with respect to
the Witness Security Reform Act of 1984, Part F of Chapter XII of
the Comprehensive Crime Control Act of 1984 (Pub.L. No. 98-473).
This chapter contains regulations and provides general information
about the Witness Security Program (the Program), and sets forth
the procedures by which a government attorney may apply for the
services of the Program in order to protect a witness against
dangers that may be related to the witness's testimony. This
chapter also provides information concerning the investigative use,
or targeting, of persons who are in the custody of the United
States Marshals Service (USMS) or the Bureau of Prisons (BOP), or
who are under BOP supervision.
For information concerning the Emergency Witness Assistance
Program see USAM 3-7.340, or
contact any USAO Victim-Witness Coordinator or the Executive Office
for United States Attorneys' LECC/Victim-Witness Office.
9-21.020
Scope
The procedures set forth infra apply to all
organizations within DOJ and all organizations that use the Witness
Security Program or use individuals in the custody of the USMS or
BOP. The Office of Enforcement Operations (OEO), Criminal Division,
is charged with overseeing both of these programs.
The Witness Security Reform Act of 1984 (the Act) extends the
authority of the Attorney General established as part of the
Organized Crime Control Act of 1970 to provide protection and
security by means of relocation for persons who are witnesses in
official proceedings brought against persons involved in organized
criminal activity or other serious offenses where it is determined
that an offense described in Title 18, United States Code, Chapter
73 (obstruction of justice) or relating to a similar State or local
offense involving a crime of violence directed at a witness is
likely to occur. The Act also sets forth the authority by which the
Attorney General may provide protective services to certain
relatives and associates of protected witnesses. In this regard, 28
U.S.C. 524 authorizes the use of DOJ appropriations for the payment
of "compensation and expenses of witnesses... at the rates
authorized or approved by the Assistant Attorney General for
Administration."
9-21.050
Utilization of Persons in Custody of BOP or USMS for Investigative
Purposes, or as Targets of Investigative Activity
Requests to use, for investigative purposes, persons who are in
the custody of the USMS or BOP, or who are under BOP supervision,
or to target such individuals in covert investigations, must be
submitted to OEO for review and prior approval. Such requests must
first be approved by the designated official(s) at the agency's
headquarters, and then submitted, in writing, by personnel at the
agency's headquarters to the Chief, Special Operations Unit, OEO,
Criminal Division, U.S. Department of Justice, P.O. Box 7600,
Washington, D.C. 20044-7600.
As part of the review process, OEO coordinates with personnel
at the headquarters of all appropriate agencies (BOP, USMS,
investigative agencies). Upon approval or denial of the request,
OEO advises the requesting agency's headquarters of the
decision.
If there are exigent circumstances requiring an immediate
response from OEO, oral requests for approval will be accepted from
personnel at the agency's headquarters. However, confirmation of
the request and appropriate supporting information must be
submitted to OEO in writing as soon as possible after approval.
This information will be held in the strictest confidence; no
dissemination of the information will be made without prior
approval from the appropriate personnel at the agency's
headquarters.
Although it is not encouraged, if extraordinary circumstances
warrant the investigative utilization of a person in the custody of
the BOP or the USMS by a state or local law enforcement agency, OEO
will consider that request. Such a request must be submitted in
writing and endorsed by the United States Attorney for the district
in which the investigative use is to occur, or where the charges
will be brought, whichever is more appropriate.
In those situations in which OEO has approved the request, but
the person whose release is being sought for investigative purposes
is being held in the USMS or BOP custody by order of a
court, the Assistant United States Attorney must obtain a court
order authorizing the release from custody by the USMS or BOP to
the approved investigative agency. Such order should be sealed by
the court for the security of both the prisoner and the
investigation. No court order shall be obtained transferring
the custody of an individual from the USMS or BOP to an
investigative agency without the prior approval of OEO.
In addition, any cases involving video surveillance and/or
consensual monitoring must comply with
USAM 9-7.000 (Electronic
Surveillance).
NOTE: Federal investigative agencies are also required
to seek the approval of OEO to use or target a BOP employee in an
undercover capacity. See the Criminal
Resource Manual at 704, for additional information about the
use of BOP employees.
See the Criminal Resource Manual at
703, for a more detailed description of the information which
must be submitted to OEO.
9-21.100
Eligibility For the Witness Security Program
A witness may be considered for acceptance into the Witness
Security Program if they are an essential witness in a specific
case of the following types:
- Any offense defined in Title 18, United States
Code, Section 1961(1) (organized crime and racketeering);
- Any drug trafficking offense described in Title 21, United
States Code;
- Any other serious Federal felony for which a witness may
provide testimony that may subject the witness to retaliation by
violence or threats of violence;
- Any State offense that is similar in nature to those set forth
above; and
- Certain civil and administrative proceedings in which
testimony given by a witness may place the safety of that witness
in jeopardy.
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.
9-21.110
Informants
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.
9-21.130
Prisoner-Witnesses
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.
9-21.140
State and Local Witnesses
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.
9-21.200
Approval Authority
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.
9-21.220
Emergency Authorization
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.
9-21.300
Requests for Preliminary Interviews
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.
[cited in
USAM 9-21.220]
9-21.310
Representations and Promises
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.
9-21.320
Expenses
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.
9-21.330
Psychological Testing and Evaluation
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.
[cited in
Criminal Resource Manual 710]
9-21.340
Polygraph Examinations for Prisoner-Witness Candidates
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.
[cited in
Criminal Resource Manual 711]
9-21.400
Procedures for Securing Protection
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.
[cited in
Criminal Resource Manual 701]
9-21.410
Illegal Aliens
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.
9-21.500
Responsibilities and Prerogatives of the United States Marshals
Service
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
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