9-13.100
Out of Court Identification Procedures
|
See the Criminal Resource
Manual at 238 et seq. for a discussion of the law on lineups
and showups, photographic lineups, fingerprinting, handwriting,
voice exemplars and voice prints and other physical evidence
issues.
[updated July 1998]
9-13.200
Communications with Represented Persons
|
Department attorneys are governed
in criminal and civil law
enforcement investigations and proceedings by the relevant rule of
professional conduct that deals with communications with represented
persons. 28 U.S.C. Section 530B. In determining which rule of professional
conduct is relevant, Department attorneys should be guided by 28 C.F.R. Part
77 (1999). Department attorneys are strongly encouraged to consult with
their Professional Responsibility Officers or supervisors—and, if
appropriate, the Professional Responsibility Advisory Office—when there
is a question regarding which is the relevant rule or the interpretation or
application of the relevant rule. See also the Criminal Resource Manual at 296 through 298.
[updated May 2005]
[cited in
Criminal Resource Manual 703]
9-13.300
Polygraphs—Department Policy
|
The Department opposes all attempts by defense counsel to admit
polygraph evidence or to have an examiner appointed by the court to
conduct a polygraph test. Government attorneys should refrain from
seeking the admission of favorable examinations that may have been
conducted during the investigatory stage for the following
reasons.
Though certain physiological reactions such as a fast heart
beat, muscle contraction, and sweaty palms are believed to be
associated with deception attempts, they do not, by themselves,
indicate deceit. Anger, fear, anxiety, surprise, shame,
embarrassment, and resentment can also produce these same
physiological reactions. S. Rep. No. 284, 100th Cong., 2d Sess. 3-5
(1988). Moreover, an individual is less likely to produce these
physiological reactions if he is assured that the results of the
examination will not be disclosed without his approval. Given the
present theoretical and practical deficiencies of polygraphs, the
government takes the position that polygraph results should not be
introduced into evidence at trial. On the other hand, in respect to
its use as an investigatory tool, the Department recognizes that in
certain situations, as in testing the reliability of an informer,
a polygraph can be of some value. Department policy therefore
supports the limited use of t he polygraph during investigations.
This limited use should be effectuated by using the trained
examiners of the federal investigative agencies, primarily the FBI,
in accordance with internal procedures formulated by the agencies.
E.g., R. Ferguson, Polygraph Policy Model for Law
Enforcement, FBI Law Enforcement Bulletin, pages 6-20 (June
1987). The case agent or prosecutor should make clear to the
possible defendant or witness the limited purpose for which results
are used and that the test results will be only one factor in
making a prosecutive decision. If the subject is in custody, the
test should be preceded by Miranda warnings. Subsequent admissions
or confessions will then be admissible if the trial court
determines that the statements were voluntary. Wyrick v.
Fields, 459 U.S. 42 (1982); Keiper v. Cupp, 509 F.2d 238
(9th Cir. 1975).
See the Criminal Resource Manual at
259 et seq. for a discussion of case law on polygraph
examinations.
9-13.400
News Media Subpoenas; Subpoenas for Telephone Toll Records of News
Media; Interrogation, Arrest, or Criminal Charging of Members of the News
Media
|
In recognition of the importance of freedom of the press to a
free and democratic society, it is the Department's policy that the
prosecutorial power of the Government should not be used in such a
way that it impairs a reporter's responsibility to cover as broadly
as possible controversial public issues. Accordingly, Government
attorneys should ordinarily refrain from imposing upon members of
the news media forms of compulsory process which might impair the
news gathering function. In all cases, members of the Department
must balance the public's interest in the free dissemination of
ideas and information with the public's interest in effective law
enforcement and the fair administration of justice. The policies,
procedures and standards governing the issuance of subpoenas to
members of the news media, subpoenas for the telephone toll records
of members of the news media, and the interrogation, indictment, or
arrest of members of the news media are set forth in 28
C.F.R. § 50.10.
The Attorney General's authorization is normally required
before the issuance of any subpoena to a member of the news media
or for the telephone toll records of a member of the news media.
However, in those cases where the media member or his or her
representative agrees to provide the material sought and
that material has been published or broadcast, the United States
Attorney or the responsible Assistant Attorney General may
authorize issuance of the subpoena, thereafter submitting a report
to the Office of Public Affairs detailing the circumstances
surrounding the issuance of the subpoena. 28 C.F.R.
§ 50(e).
Before considering issuing a subpoena to a member of the news
media, or for telephone toll records of a member of the news media,
Department attorneys should take all reasonable steps to attempt to
obtain the information through alternative sources or means. 28
C.F.R. § 50.10(b). In addition, Department attorneys
contemplating issuing a subpoena to a member of the news media must
first attempt negotiations with the media aimed at accommodating
the interests of the trial or grand jury with the interests of the
media. 28 C.F.R. § 50.10(c). Negotiations with the
affected media member must also precede any request to subpoena the
telephone toll records of any member of the news media, so long as
the responsible Assistant Attorney General determines that such
negotiations would not pose a substantial threat to the
investigation at issue. 28 C.F.R. § 50.10(d).
Department attorneys seeking the Attorney General's
authorization to issue a subpoena to a member of the news media, or
for telephone toll records of a media member, must submit a written
request summarizing the facts of the prosecution or investigation,
explaining the essentiality of the information sought to the
investigation or prosecution, describing attempts to obtain the
voluntary cooperation of the news media through negotiation and
explaining how the proposed subpoena will be fashioned as narrowly
as possible to obtain the necessary information in a manner as
minimally intrusive and burdensome as possible. Specific principles
applicable to authorization requests for subpoenas to members of
the news media are set forth in 28 C.F.R.
§ 50.10(f)(1)-(6), and for subpoenas for telephone toll
records of members of the news media in 28 C.F.R. §
50.10(g)(1)-(4). The Department considers the requirements of 28
C.F.R. § 50.10 applicable to the issuance of subpoenas
for the journalistic materials and telephone toll records of
deceased journalists.
Except in cases involving exigent circumstances, Department
attorneys must also obtain the express approval of the Attorney
General prior to the interrogation or arrest of a member of the
news media for an offense which he or she is suspected of having
committed during the course of, or arising out of, his or her
coverage or investigation of a news story, or while he or she was
engaged in the performance of his or her official duties as a
member of the news media. The Attorney General's authorization must
also precede the presentment of an indictment to a grand jury or
the filing of an information against a member of the news media for
any such offense. 28 C.F.R. § 50.10(h)-(l).
In cases or matters under the supervision of the Criminal
Division, any request for the Attorney General's authorization
pursuant to 28 C.F.R. § 50.10, and any related questions
or concerns, should be directed to the Policy and Statutory
Enforcement Unit of the Office of Enforcement Operations.
See the form in the
Criminal Resource Manual at 299.
In cases
or matters under the supervision of other Divisions of the
Department of Justice, the appropriate Division should be
contacted.
In light of the intent of the regulation to protect freedom of
the press, news gathering functions, and news media sources, the
requirements of 28 C.F.R. § 50.10 do not apply to demands
for purely commercial or financial information unrelated to the
news gathering function. 28 C.F.R. § 50.10(m).
[updated October 2008]
[cited in
USAM 9-11.140;
USAM 9-11.255;
Criminal Resource Manual 299]
9-13.410
Guidelines for Issuing Grand Jury or Trial Subpoena to Attorneys for
Information Relating to the Representation of Clients
- Clearance with
the Criminal
Division
. Because of the potential effects upon an attorney-client
relationship that may result from the issuance of a subpoena to an attorney
for information relating to the attorney's representation of a client, the
Department exercises close control over such subpoenas. Such subpoenas (for
both criminal and civil matters) must first be authorized by the Assistant
Attorney General for the Criminal Division before they may issue, unless the
information sought falls into one of the exceptions set forth below. Unless
one of the specified exceptions applies, authorization must be obtained even
for a "friendly subpoena" for client-related information, that is, even in
situations where the attorney witness is willing to provide the information
but requests the formality of a subpoena.
- Preliminary Steps
. When determining whether to issue a
subpoena to an attorney for information relating to the attorney's
representation of a client, the Assistant United States Attorney
must strike a balance between an individual's right to the
effective assistance of counsel and the public's interest in the
fair administration of justice and effective law enforcement. To
that end, all reasonable attempts shall be made to obtain the
information from alternative sources before issuing the subpoena to
the attorney, unless such efforts would compromise the
investigation or case. These attempts shall include reasonable
efforts to first obtain the information voluntarily from the
attorney, unless such efforts would compromise the investigation or
case, or would impair the ability to subpoena the information from
the attorney in the event that the attempt to obtain the
information voluntarily proves unsuccessful.
- Evaluation of the Request
. In considering a request to
approve the issuance of a subpoena to an attorney for information
relating to the representation of a client, the Assistant Attorney
General of the Criminal Division applies the following
principles:
- The information sought shall not be protected by a valid
claim of privilege.
- All reasonable attempts to obtain the information from
alternative sources shall have proved to be unsuccessful.
- In a criminal investigation or prosecution, there must be
reasonable grounds to believe that a crime has been or is being
committed, and that the information sought is reasonably needed for
the successful completion of the investigation or prosecution. The
subpoena must not be used to obtain peripheral or speculative
information.
- In a civil case, there must be reasonable grounds to believe
that the information sought is reasonably necessary to the
successful completion of the litigation.
- The need for the information must outweigh the potential
adverse effects upon the attorney-client relationship. In
particular, the need for the information must outweigh the risk
that the attorney may be disqualified from representation of the
client as a result of having to testify against the client.
- The subpoena shall be narrowly drawn and directed at material
information regarding a limited subject matter and shall cover a
reasonable, limited period of time.
- Common Factual Settings Outside of the Authorization
Requirement
. The authorization requirement applies only to
proposed subpoenas to attorneys for testimony or documents relating
to the attorney's representation of a client, and not to all
subpoenas involving attorneys. For example:
- A subpoena directed to a bank for the records of an
attorney's trust account does not require authorization because the
subpoena is not directed to the attorney, and the information
maintained at the bank is not a privileged attorney- client
communication.
- While a subpoena which seeks client billing records requires
authorization, a subpoena which seeks internal law office business
documents (pay records of law office employees, law firm tax
returns, etc.) does not, because it relates to the day-to-day
business operations of the law firm, and not to the representation
of a client.
- A subpoena seeking information regarding the attorney's
personal activities, and not regarding his/her representation of a
client, does not require authorization.
- A subpoena which seeks corporate business information, and
which is directed to an attorney who serves as a corporate officer,
does not require authorization. To make clear that the attorney is
being subpoenaed in his/her capacity as a corporate officer, and
that no attorney-client information is being sought, the subpoena
should be addressed to "John Doe, in his capacity as secretary of
the XYZ Corporation."
- Exceptions to the Authorization Requirement
.
Authorization is not required where the contemplated subpoena is
limited to seeking one or more of the following categories of
information, since such subpoenas do not raise concerns regarding
the potential application of the attorney-client privilege or the
potential for negative impact upon the attorney-client
relationship:
- records of property transactions, including real estate
closing statements, sales contracts, and payment records;
- publicly filed documents, including bankruptcy records,
unavailable from other sources;
- testimony and documents necessary to respond to a petition
filed pursuant to 28 U.S.C. § 2255 or D.C. Code § 23-110, where the petitioner
alleges ineffective assistance of counsel; and
- materials within the scope of an explicit and unchallenged
waiver by the attorney's client.
- Submitting the Request
. Requests for authorization
should be submitted to the Policy and Statutory Enforcement Unit
(PSEU), Office of Enforcement Operations, Criminal Division,
through the form set out in the
Criminal Resource Manual at 264.
When documents are sought in addition to the testimony of the
attorney witness, a draft of the subpoena duces tecum, listing the
documents sought, must accompany the completed form.
Send the completed auto-email form and draft
subpoena by email to
PSEU@usdoj.gov or, if email is
unavailable, fax it to (803) 726-2181.
- No Rights Created by Guidelines:
These guidelines are
set forth solely for the purpose of internal Department of Justice
guidance. They are not intended to, do not, and may not be relied
upon to create any rights, substantive or procedural, enforceable
at law by any party in any matter, civil or criminal, nor do they
place any limitations on otherwise lawful investigative or
litigative prerogatives of the Department of Justice.
[updated October 2008]
[cited in
USAM 9-11.255;
USAM 9-13.420;
Criminal Resource Manual 264;
2317]
9-13.420
Searches of Premises of Subject Attorneys
NOTE: For purposes of this policy only, "subject"
includes an attorney who is a "suspect, subject or target," or an
attorney who is related by blood or marriage to a suspect, or who
is believed to be in possession of contraband or the fruits or
instrumentalities of a crime. This policy also applies to searches
of business organizations where such searches involve materials in
the possession of individuals serving in the capacity of legal
advisor to the organization. Search warrants for "documentary
materials" held by an attorney who is a "disinterested third party"
(that is, any attorney who is not a subject) are governed by 28
C.F.R. 59.4 and USAM 9-19.221
et seq. See also 42 U.S.C. Section
2000aa-11(a)(3).
There are occasions when effective law enforcement may require
the issuance of a search warrant for the premises of an attorney
who is a subject of an investigation, and who also is or may be
engaged in the practice of law on behalf of clients. Because of the
potential effects of this type of search on legitimate
attorney-client relationships and because of the possibility that,
during such a search, the government may encounter material
protected by a legitimate claim of privilege, it is important that
close control be exercised over this type of search. Therefore, the
following guidelines should be followed with respect to such
searches:
- Alternatives to Search Warrants.
In order to
avoid impinging on valid attorney-client relationships, prosecutors
are expected to take the least intrusive approach consistent with
vigorous and effective law enforcement when evidence is sought from
an attorney actively engaged in the practice of law. Consideration
should be given to obtaining information from other sources or
through the use of a subpoena, unless such efforts could compromise
the criminal investigation or prosecution, or could result in the
obstruction or destruction of evidence, or would otherwise be
ineffective. NOTE: Prior approval must be obtained from
the Assistant Attorney General for the Criminal Division to issue
a subpoena to an attorney relating to the representation of a
client. See USAM
9-13.410.
- Authorization by United States Attorney or Assistant
Attorney General.
No application for such a search warrant
may be made to a court without the express approval of the United
States Attorney or pertinent Assistant Attorney General.
Ordinarily, authorization of an application for such a search
warrant is appropriate when there is a strong need for the
information or material and less intrusive means have been
considered and rejected.
- Prior Consultation.
In addition to obtaining
approval from the United States Attorney or the pertinent Assistant
Attorney General, and before seeking judicial authorization for the
search warrant, the federal prosecutor must consult with the
Criminal Division. NOTE: Attorneys are encouraged to
consult with the Criminal Division as early as possible regarding
a possible search of an attorney's office. Telephone No. (202)
514-5541; Fax No. (202) 514-1468.
- To facilitate the consultation, the prosecutor should submit
the attached form (see Criminal
Resource Manual at 265) containing relevant information about
the proposed search along with a draft copy of the proposed search
warrant, affidavit in support thereof, and any special instructions
to the searching agents regarding search procedures and procedures
to be followed to ensure that the prosecution team is not "tainted"
by any privileged material inadvertently seized during the search.
This information should be submitted to the Criminal Division
through the Office of Enforcement Operations. This procedure does
not preclude any United States Attorney or Assistant Attorney
General from discussing the matter personally with the Assistant
Attorney General of the Criminal Division.
- If exigent circumstances prevent such prior consultation, the
Criminal Division should be notified of the search as promptly as
possible. In all cases, the Criminal Division should be provided as
promptly as possible with a copy of the judicially authorized
search warrant, search warrant affidavit, and any special
instructions to the searching agents.
- The Criminal Division is committed to ensuring that
consultation regarding attorney search warrant requests will not
delay investigations. Timely processing will be assisted if the
Criminal Division is provided as much information about the search
as early as possible. The Criminal Division should also be informed
of any deadlines.
- Safeguarding Procedures and Contents of the
Affidavit.
Procedures should be designed to ensure that
privileged materials are not improperly viewed, seized or retained
during the course of the search. While the procedures to be
followed should be tailored to the facts of each case and the
requirements and judicial preferences and precedents of each
district, in all cases a prosecutor must employ adequate
precautions to ensure that the materials are reviewed for privilege
claims and that any privileged documents are returned to the
attorney from whom they were seized.
- Conducting the Search.
The search warrant
should be drawn as specifically as possible, consistent with the
requirements of the investigation, to minimize the need to search
and review privileged material to which no exception applies.
- While every effort should be made to avoid viewing privileged
material, the search may require limited review of arguably
privileged material to ascertain whether the material is covered by
the warrant. Therefore, to protect the attorney-client privilege
and to ensure that the investigation is not compromised by exposure
to privileged material relating to the investigation or to defense
strategy, a "privilege team" should be designated, consisting of
agents and lawyers not involved in the underlying investigation.
- Instructions should be given and thoroughly discussed with the
privilege team prior to the search. The instructions should set
forth procedures designed to minimize the intrusion into privileged
material, and should ensure that the privilege team does not
disclose any information to the investigation/prosecution team
unless and until so instructed by the attorney in charge of the
privilege team. Privilege team lawyers should be available either
on or off-site, to advise the agents during the course of the
search, but should not participate in the search itself.
- The affidavit in support of the search warrant may attach any
written instructions or, at a minimum, should generally state the
government's intention to employ procedures designed to ensure that
attorney-client privileges are not violated.
- If it is anticipated that computers will be searched or seized,
prosecutors are expected to follow the procedures set forth in
Federal Guidelines for Searching and Seizing Computers
(July 1994), published by the Criminal Division Office of
Professional Training and Development.
- Review Procedures.
The following review
procedures should be discussed prior to approval of any warrant,
consistent with the practice in your district, the circumstances of
the investigation and the volume of materials seized. - Who
will conduct the review, i.e., a privilege team, a judicial
officer, or a special master.
- Whether all
documents will be submitted to a judicial officer or special master
or only those which a privilege team has determined to be arguably
privileged or arguably subject to an exception to the
privilege.
- Whether copies of all seized materials
will be provided to the subject attorney (or a legal
representative) in order that: a) disruption of the law firm's
operation is minimized; and b) the subject is afforded an
opportunity to participate in the process of submitting disputed
documents to the court by raising specific claims of privilege. To
the extent possible, providing copies of seized records is
encouraged, where such disclosure will not impede or obstruct the
investigation.
- Whether appropriate arrangements
have been made for storage and handling of electronic evidence and
procedures developed for searching computer data (i.e., procedures
which recognize the universal nature of computer seizure and are
designed to avoid review of materials implicating the privilege of
innocent clients).
These guidelines are set forth solely for the purpose of
internal Department of Justice guidance. They are not intended to,
do not, and may not be relied upon to create any rights,
substantive or procedural, enforceable at law by any party in any
matter, civil or criminal, nor do they place any limitations on
otherwise lawful investigative or litigative prerogatives of the
Department of Justice.
See the Criminal Resource Manual at
265, for an attorney office search warrant form.
[cited in
Criminal Resource Manual 265]
9-13.500
International Legal Assistance
|
The Criminal Division's Office of International Affairs
(514-0000) must be consulted before contacting any foreign or State
Department official in matters relating to extradition of a
fugitive or the obtaining of evidence in a criminal investigation
or prosecution.
Any proposed contact with persons, other than United States
investigative agents, in a foreign country for the purpose of
obtaining the extradition of a fugitive or evidence should first be
discussed with the Office of International Affairs, Criminal
Division.
Before attempting to do any act outside the United States
relating to a criminal investigation or prosecution, including
contacting a witness by telephone or mail, prior approval must be
obtained from the Office of International Affairs.
See the Criminal Resource Manual at
266, for additional background regarding the Office of
International Affairs.
[cited in
USAM 9-11.140]
9-13.510
Obtaining Evidence Abroad—General Considerations
|
Because virtually every nation enacts laws to protect its
sovereignty and can react adversely to American law enforcement
efforts to gather evidence within its borders as a violation of
that sovereignty, contact the Office of International Affairs
initially to evaluate methods for securing assistance from abroad
and to select an appropriate one. See the
Criminal Resource Manual at 267 et seq.
9-13.512
Intended Use of the Evidence
|
When a country grants assistance for a particular purpose,
contact the Office of International Affairs (OIA) before using it
for a different purpose. OIA will determine whether it can be used
for a different purpose without the express permission of the
country that provided it and, if not, for guidance in securing such
permission. See the Criminal
Resource Manual at 269.
9-13.514
Time Required
|
Contact the Office of International Affairs as soon as it
appears that assistance from overseas will be needed. See
the Criminal Resource Manual at 271-
272.
9-13.516
Cost of Obtaining Evidence
|
Be sure funds are available before making a costly request.
See the Criminal Resource Manual at
273.
9-13.520
Methods of Obtaining Evidence from Abroad
|
There are many different methods of obtaining evidence from
abroad, including the use of letters rogatory, treaty requests,
executive agreements and memoranda of understanding, subpoenas
(seeUSAM 9-13.525), and
other informal means. Contact the Office of International Affairs
before choosing a method. See the
Criminal Resource Manual at 274-
279.
[cited in
Criminal Resource Manual 267]
9-13.525
Subpoenas
|
Since the use of unilateral compulsory measures can adversely
affect United States law enforcement relationship with a foreign
country, all Federal prosecutors must obtain written approval
through the Office of International Affairs (OIA) before issuing
any subpoenas to persons or entities in the United States for
records located abroad. See the Criminal
Resource Manual at 279, for a description of the requirements
of requesting such approval. OIA must also be consulted prior to
initiating enforcement proceedings relating to such subpoenas.
OIA's approval must be obtained prior to serving a subpoena ad
testificandum on an officer of, or attorney for, a foreign bank or
corporation who is temporarily in or passing through the United
States when the testimony sought relates to the officer's or
attorney's duties in connection with the operation of the bank or
corporation.
[cited in
USAM 9-13.520;
Criminal Resource Manual 285]
9-13.526
Forfeiture of Assets Located in Foreign Countries
|
International and domestic coordination are needed in matters
relating to the forfeiture of assets located in foreign countries.
See the Criminal Resource Manual at
280. Consequently, any attorney for the Federal government who
plans to file a civil forfeiture action for assets located in
another country pursuant to
28 U.S.C. § 1355(b)(2) is directed to notify
the Office of International Affairs (OIA) of the Criminal Division
before taking such action. Notification to OIA should be in writing
and include the information listed in the
Criminal Resource Manual at 280.
Within ten days of receipt of such notification, OIA, in
consultation with the Asset Forfeiture and Money Laundering
Section, will review the notification information, consult with
foreign and U.S. authorities as appropriate to the facts and
circumstances of the specific proposal, and communicate its
findings to the attorney for the Federal government who submitted
the notification.
Attorneys for the Federal government are also directed to
consult with the OIA before taking steps to present to a foreign
government, for enforcement or recognition, any civil or criminal
forfeiture order entered in the United States for property located
within the foreign jurisdiction.
In cases where it appears that the property in question is
likely to be removed, destroyed, or dissipated so as to defeat the
possibility of the forfeiture under U.S. law, the attorney for the
Federal government may, of course, request the OIA to seek the
assistance of the authorities of the foreign government where the
property is located in seizing or taking whatever action is
necessary and appropriate to preserve the property for forfeiture.
[cited in
USAM 9-119.103]
9-13.530
Special Considerations—Translations
|
In every case requiring a translation, prosecutors must reach
a clear understanding with the Office of International Affairs
(OIA) about who will secure the translation and send it overseas.
Generally, arrangements for translation must be made and paid for
by the United States Attorney's Office. See the
Criminal Resource Manual at 282.
9-13.534
Foreign Travel by Prosecutors
|
Foreign travel must be authorized in advance either by the
Executive Office for United States Attorneys (EOUSA) (travel
involving Assistant United States Attorneys) or by the Office of
International Affairs (OIA) (travel involving Departmental
prosecutors). EOUSA will not authorize the travel unless the
prosecutor has obtained the approvals required in
USAM 3-8.730. Prosecutors
should contact EOUSA and OIA well in advance of their intended
departure date because foreign clearances take time. See also the
Criminal Resource Manual at 284.
[updated October 1999]
[cited in
USAM 9-119.103;
Criminal Resource Manual 284]
9-13.535
Depositions
|
If
an essential witness who is not subject to a subpoena
(
unwilling to come to the United States to testify, the prosecutor
may attempt to proceed by means of a deposition. See Fed.
R. Crim. P. 15 and 18 U.S.C. § 3503. See the
Criminal Resource Manual at 285 for
additional discussion regarding depositions and for the procedures
which should be followed.
9-13.540
Assisting Foreign Prosecutors
|
To avoid undercutting Departmental policy, when prosecutors
receive requests for assistance from foreign prosecutors,
prosecutors should discuss all such requests with the Office of
International Affairs before executing. See the
Criminal Resource Manual at 286.
Costs of executing foreign requests (including court reporter's
fees) are the responsibility of the country making the request
unless an applicable treaty requires the United States to pay; in
that event, the United States Attorney's Office pays the costs.
9-13.600
Use of Hypnosis
|
For a discussion of the law relating to the use of hypnosis,
see the Criminal Resource Manual at 287-
294.
9-13.800
Access to and Disclosure of Financial Records
|
The Right to Financial Privacy Act of 1978,
12 U.S.C. § 3401 et seq., governs federal
agencies' access to and disclosure of all "financial records" of
any "customer" from a "financial institution." This statute sets
forth a complex set of procedures which United States Attorneys
(along with other federal officials) must follow in obtaining the
records covered by the Act. These procedures must be followed by
law enforcement officials if they are to obtain records needed in
an investigation without alerting the target(s) of that
investigation.
For additional information, see the Treatise on the Right
to Financial Privacy Act in the
Criminal Resource Manual at 400, or contact
the Policy and Statutory Enforcement Unit of the Office of
Enforcement Operations.
[cited in
USAM 9-11.141;
USAM 9-11.142]
9-13.900
Access to and Disclosures of Tax Returns in a Non-tax Criminal Case
|
Title 26 U.S.C. § 6103 prohibits disclosure
of tax returns and tax return information except as specifically
provided in § 6103, or other sections of the Code.
Among the disclosures authorized are those in
26 U.S.C. § 6103(i) concerning access to
returns and return information by certain Department of Justice
personnel for use in the investigation and prosecution of federal
criminal statutory violations and related civil forfeitures not
involving tax administration. The access procedures and use
restrictions in sucha case are set forth in the
Criminal Resource Manual at 501 et seq.
Applications for the ex parte order authorized by this
paragraph may be authorized by: the Attorney General, the Deputy
Attorney General, the Associate Attorney General, any Assistant
Attorney General, a United States Attorney, any special prosecutor
appointed under 28 U.S.C. § 593, or any
attorney in charge of a Criminal Division organized crime strike
force established pursuant to 28 U.S.C. § 510.
It is anticipated that most applications will be authorized by
United States Attorneys or Strike Force Chiefs.
It is the Department's policy that an Ex Parte Application For
Returns and Return Information be filed under seal. Prosecutors
should file the motion to seal simultaneously with the Application.
The motion should request the court to seal the application and its
order granting or denying the application. United States Attorneys
should notify Internal Revenue Service whenever a motion to seal is
granted, and whenever the records are subsequently unsealed.
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