Analysis: This information constitutes traditional assistance; no particular consultation is required before a Departmental employee may accept this information.
Continuing Scenario: The Department has initiated its own investigation based on the initial information provided by the association's private investigator. After the Department's investigation has begun, and without any further communications or direction from an FBI agent or the Criminal Division attorney assigned to the matter, the private investigator uncovers another source that appears to be involved with the counterfeit materials. The investigator reports this new information to the FBI agent.
Analysis: This information also constitutes traditional assistance that the FBI agent and attorney may accept. The attorney and agent may need to consult with each other to determine whether the investigator's efforts may interfere with the Department's activities, and whether the investigator should be advised to alter his activities in some manner in order to avoid any interference. Neither the agent nor attorney should advise the investigator what types of evidence are desired for the Department's investigation.
Analysis: Initially, the FBI must obtain prior approval from the Deputy Attorney General or the Attorney General before any representative may contact the retail company to seek its services. The free forensic services constitute a gift. Since the value of these services is less than $50,000, the agent and attorney must seek the component head's approval in order to accept these services for free. In considering this offer, the component head must consider why the Department is seeking outside forensics aid. The Department may need a third party's gift because the Department does not own or have at its disposal the same equipment. In addition, the time-sensitive nature of the case might require immediate action, and the Department might not gain access to such equipment with the same speed as that offered as a gift. In this situation, with advance approval of the solicitation the Department may accept the gift.
Analysis: A retail giant's standing offer to allow the Department to use its forensic facilities, whether for case-specific matters or general investigative purposes, should be considered carefully. (Initially, this company's offer does not trigger the same considerations set forth in No. 2, where the Department solicited the gift.). As noted above, there may be instances when private industry has forensic resources that are not available to the Department, and the immediacy of the situation may warrant the Department's use of outside resources. However, the decision to use a third party's services is distinct from the decision to accept such services free of cost. In deciding whether to accept the services for free, counsel should consider whether there are any pending matters in the Department in which the retail giant is a party or could be affected directly by a particular matter.
One-time gifts of free assistance may be permissible. However, it is particularly important that the Department carefully scrutinize a third party's offer to use its services for free on multiple occasions or on a periodic basis for separate cases or matters (e.g., several times a year). The Department should be circumspect in accepting more than one gift from the same source within one fiscal year.
Again, while the donor may have resources unavailable to the Department, the Department should consider paying for the services provided. Even if the full cost is difficult to assess, the Department and a third party can identify a reasonable value for the unique services provided.
One reason for the Department's disinclination to accept multiple offers from one source is that the costs of pursuing the Department's mission must be fully identified and presented as part of its budget for Congress to accept or reject. Accepting free services that are critical to the Department's performance of its mission on a frequent or regular basis masks the actual costs of its annual operations. Second, periodic or regular acceptance of free services from an entity can raise an appearance of a conflict of interest, particularly if any matter later arises involving that donor.
The component head may accept the first offer from a source up to $50,000. A second or subsequent offer in the same fiscal year from the same source must be submitted to the Assistant Attorney General for Administration (AAG/A) for approval when the value combined with the first gift exceeds $50,000.
Analysis: The corporation is a victim. The computer firm is a 'related party' because it is retained by the corporation. Access to both companies' personnel during the investigation is traditional assistance that does not warrant any formal approval process. The corporate and security firm employees are in a unique position to provide useful information on behalf of their employer/contractor. The agent and attorney should consult with each other, and potentially with the Professional Responsibility Officer (PRO) and the Deputy Designated Agency Ethics Official (DDAEO), to determine the extent to which they will accept the corporation's offers. Using corporate space for interviews does not raise any particular concerns. The computer security expert who assessed the damage to the corporation has distinct advantages over another computer expert who was not involved in the assessment. Despite this favorable position, the trial attorney should determine whether the potential appearance of the corporation's self-interest in paying for the expert witness' testimony does not outweigh the benefit of this expert's testimony before accepting the services.
Analysis: The owner is an indirect victim since the suspect's illegal activities have an adverse affect on the owner's property. Offers of aid from an indirect victim generally constitute assistance, although the value of the offer may be such that it should be considered a gift. Given the short time frame (three months) and the value involved ($4,500), this offer constitutes assistance, and an agent in consultation with an attorney may decide to accept the offer. However, if the owner offered the DEA agent free use of the apartment for nine months and that amount of time (or longer) was necessary for a more complex investigation, the agent and attorney should seek approval to accept the offer as a gift. Given that the owner is taking the apartment off the market for an extended period of time, the offer is more substantial than before, and higher-level approval (by the component head for a gift) is warranted. There is no clear line defining when assistance becomes a gift because of the financial value or imposition involved. For offers that exceed three months, an attorney should consult with the DDAEO to determine whether the offer may be accepted as assistance, or considered a gift.
Analysis: The professor is a third party and he has offered the attorney a gift. Assuming that the number of hours to prepare and present testimony is limited, the value of the professor's services will be below $50,000. Although the Department (and component's budget) will always benefit from no-cost expert services, it is not always appropriate to accept this type of offer. While the professor will benefit professionally from his 'expert' qualification, this intangible benefit does not necessarily mean the Department should avoid the costs of payment. The attorney should consult with the PRO and DDAEO to determine the appropriate course of action.
Analysis: Because the Department is serving as the conduit for cash to recover counterfeit materials, the Department may accept the victim's offer of funds for this particular purpose. The agent should seek approval from the AUSA prior to accepting the victim's funds. Because the cost of storage to the company at its own facilities is minimal, the Department may accept the company's offer to store the goods at the victim's expense.
Analysis: Given the high value, this offer must be submitted to the AAG/A for acceptance. Moreover, more concerns arise because this program would enhance the Department's general capabilities, and not just be used for a specific case investigation. Again, there are appearance issues in accepting resources of such significant value from an entity that may be the subject of Department action in another arena. This type of offer also directly impacts the Department's operations and mission. However, the company is also offering a capability that is unparalleled. Given the magnitude of this offer, high-level attention to determine whether this offer may be accepted is warranted.