IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA IN THE MATTER OF ) THE POLICY REGARDING USE OF ) PRE-TRIAL SUPERVISEES AS ) CONFIDENTIAL INFORMANTS, THE )GENERAL ORDER 96- 01 PROCEDURES FOR THEIR ) SUPERVISION, AND THE POLICY ) REGARDING THE USE OF OFFENDERS ) AS CONFIDENTIAL INFORMANTS ) IT IS ORDERED that the Policy Regarding Use of Pre-trial Supervisees as Confidential Informants, attached hereto, the Procedure for the Supervision by Pre-trial Services Officers of Defendants Who Are Confidential Informants, and the Policy Regarding Use of Offenders as Confidential Informants, copies of which are attached hereto, are hereby adopted by this Court. Dated this 6th day of February, 1996. BY THE COURT: (signed) WILLIAM G. CAMBRIDGE, Chief Judge United States District Court (signed) RICHARD G. KOPF United States District Judge (signed) THOMAS M. SHANAHAN United States District Judge POLICY REGARDING USE OF PRETRIAL SUPERVISEES AS CONFIDENTIAL INFORMANTS DISTRICT OF NEBRASKA A. General.No counsel, officer, agent, or employee of the United States shall request, cause, or attempt to cause any person or persons on release pending trial, sentencing, surrender of sentence, or appeal under an order of a judge or magistrate judge of this Court or the Court of Appeals and under the supervision of the pretrial services office, to violate any condition of such release, including but not limited to, use of such person(s) under circumstances that violate one or more of the conditions of release, provided that an informal or formal ex parte request may be made to the judge or magistrate judge having jurisdiction, for modification of such conditions for lawful purposes. B. Submission of Request for Modification of Conditions of Release. Any request for modification of one or more conditions of release may be submitted informally or formally, confidentially ex parte, to the magistrate judge or judge having jurisdiction stating the exceptional facts which justify such a request. In an emergency, any judge or magistrate judge of this Court may grant such a request. C. Granting of Request for Modification of Conditions of Release. If possible, prior to granting any request under paragraph "B" hereof, the judge or magistrate judge shall, if time permits, consult with the chief pretrial services officer, or designee, on a person under supervision, before granting such a request, and shall by sealed order modify the conditions of release as the circumstances shall require. D. Procedures Not Prohibited by Rule. Provided however, that, in respect to persons under arrest, in custody, on release pending trial, sentencing, surrender of sentence, or appeal, this rule shall not be construed to prohibit: 1.An officer, agent, or employee of the United States interviewing the person, "debriefing" the person, questioning the person, or taking a voluntary statement from the person concerning intelligence or information on any subject relating to, or unrelated to the alleged offense or offenses on which the person is awaiting trial, sentencing, surrender of sentence, or appeal; 2.Making searches and seizures, determined by counsel, an officer, agent, or employee of the United States to be lawful, including, but not limited to, searches or seizures from the person or persons, subject to later determination by the Court of lawfulness thereof; 3.Appearances and testimony by the person in any lawful discovery or investigative proceedings as a witness, formally or informally, including, but not limited to, appearance or appearances as a witness before a grand jury. E. To Whom Applicable. This policy shall apply to persons who are released, provided that the supervision of release is being conducted by the pretrial services office of this Court and the order setting the conditions of release has been entered by (a) a magistrate or district judge of this district or (b) the Court of Appeals or a judge thereof in an appeal from a judgment in one or more criminal actions in this district. This policy does not establish a right to be released from detention in order to cooperate. Procedure for the Supervision by Pretrial Services Officers of Defendants Who Are Confidential Informants District of Nebraska Introduction Sometimes persons charged with criminal offenses and awaiting adjudication of those charges or imposition of sentence wish to become confidential informants for law enforcement agencies. These persons, hereinafter referred to as "defendants", often are under the supervision of pretrial services officers. The following principles are recognized: The use of defendants as confidential informants is a legitimate and longstanding practice; Pretrial services officers are charged with assessing the risk of nonappearance and the danger defendants may pose, and with supervising defendants released by the court under conditions of release; Defendants under supervision who are confidential informants may present a risk to the safety of the pretrial services officers who supervise them and to other members of the community. Defendants who are incarcerated pretrial, having been found to be either a danger to society or a flight risk or both, are not to be released so that they can become confidential informants, except after the strictest scrutiny by the court and under the closest supervision of law enforcement authority. Utilization as an Informant 1. The Court may authorize a defendant who is under the supervision of the pretrial services office to work as a confidential informant at the request of a federal law enforcement agency (herein referred to as "sponsoring agency"). Any such request to the Court should be made through an Assistant United States Attorney. 2. As part of the request to utilize the services of the defendant, the sponsoring agency will furnish to the Court, under seal, an overview of the proposed utilization. Such overview will contain the sponsoring agency's operating instructions to the defendant, the sponsoring agency's proposed administrative controls, and an evaluation of the risk to the defendant and to the Confidential Informants community, with plans to address such risk. Such overview will also state why the potential benefit to the government outweighs the risk of the defendant's reinvolvement with criminal associates. The identity of targets of the investigation or other persons which may be involved in the investigation need not be disclosed, unless these persons are already under supervision by this Court. The request for consideration for the use of a defendant's services will specify the period of time (up to 90 days) for which the services of the defendant are desired and the specific sponsoring agency's personnel who will oversee the work of the confidential informant. 3. The Court, in its discretion, may request the pretrial services office to review requests from sponsoring agencies to utilize defendants as confidential informants and to provide to the Court its observations, opinions, and recommendations. Given the sensitive nature of confidential informants, in particular cases with extremely sensitive and overriding circumstances, the sponsoring agency may request that only the Court review the request. In such cases, the sponsoring agency should provide the Court specific reasons why review by the pretrial services office is not appropriate. If the Court agrees and approves the utilization of the defendant as a confidential informant, the Court, in its discretion, may place the defendant under the supervision of the sponsoring agency and cease pretrial services supervision. 4. As part of the utilization process, a representative of the sponsoring agency is to conduct an in-depth briefing with the defendant and the defendant's counsel concerning his/her relationship with the sponsoring agency, the intended target(s), and the operating instructions. The representative is also to meet with the pretrial services office to determine the conditions of pretrial release that need modifying for the defendant to be utilized as a confidential informant. At the conclusion of these meetings, the representative of the sponsoring agency and the pretrial services office may recommend for the Court's approval modifications to the pretrial release conditions. Approval 1. Pursuant to these guidelines, the Court shall acknowledge, in writing or on the record in camera, its approval or disapproval of such requests, noting the date Confidential Informants of such approval or disapproval, and, where appropriate, modify the pretrial release conditions. All documents relating to the utilization of the defendant as a confidential informant shall remain under seal. 2. The defendant's services as a confidential informant are to be approved for a period not to exceed ninety (90) days, commencing on the date of the Court's approval. The pretrial services office will monitor the specified term for the Court and notify the Court and the representative of the sponsoring agency fifteen (15) days prior to of the end of the specified term. In the event circumstances develop that would indicate that an extension of the specific period of services would be in the best interest of all concerned, the sponsoring agency will provide to the Court a written request for such an extension which includes appropriate justification for the extension. Such request and justification shall be provided to the Court at least five (5) days prior to the end of the specified term, unless emergency circumstances dictate otherwise. 3. If an emergency exists requiring utilization of the confidential informant in order to protect life or prevent substantial property loss, to apprehend or identify a feeing defendant, or to prevent the imminent loss of evidence before the approval of the Court with due diligence can be obtained, the sponsoring agency shall notify the Court as soon as possible thereafter. Conditions and Operating Procedures 1. Pretrial Services and the sponsoring agency shall advise the defendant that he/she is to abide by all the conditions of pretrial release set by the Court, including those that were modified, and that the defendant is not to participate in any other criminal activity without the prior approval of the Court. "Other criminal activity" is defined as activity that would constitute a crime under local, state or federal laws if engaged in by a private person acting without the authority and approval of a law enforcement agency. 2. The sponsoring agency shall take all necessary, reasonable and possible precautions to ensure the safety of the defendant and the community. 3. During the period of the defendant's service as an informant, the sponsoring agency shall be responsible for bringing to the attention of the Court, either Confidential Informants directly or through the pretrial services office, any violations of the conditions of pretrial release, including any other criminal activity. The sponsoring agency will also be responsible for informing the pretrial services office whenever the sponsoring agency believes that the pretrial services staff is or may be in danger due to the activity of the defendant. 4. Prior to the imposition of sentence for a cooperating defendant, the sponsoring agency shall provide a report to the sentencing Court, outlining the extent of the defendant's cooperation and effectiveness in the investigation, and whether financial remuneration or other consideration/reward has been provided to the defendant. all such reports shall remain under seal until such time as it may be appropriate to make known the defendant's cooperation. Termination 1. At the conclusion of working the defendant as a confidential informant, the sponsoring agency shall advise the defendant in writing that his/her services as a confidential informant are terminated and that he/she is no longer authorized to act as an informant for the agency. The defendant shall acknowledge in writing receipt of this notification. 2. The sponsoring agency shall immediately notify the pretrial services office and the Court that the use of the defendant has been terminated. Confidentiality of Records Access to any and all documents, records, or other information identifying a defendant as a confidential informant shall be limited to the Court and designated representative(s) of the pretrial services office. Such documents, records, or other identifying data shall be maintained under strict security. Access to the above shall be strictly limited to and controlled by the Court and designated representative(s) of the pretrial services office. In no instance shall any documents, records, or data pertaining to a defendant who is a confidential informant be flagged, marked, or otherwise identified in any way which would indicate to any person normally not having access to these documents or records that the defendant is serving as a confidential informant. POLICY REGARDING THE USE OF OFFENDERS AS CONFIDENTIAL INFORMANTS DISTRICT OF NEBRASKA Due to the high risk of recidivism involved with exposure to a criminal environment, the general policy of the Court and probation office, as expressed in the conditions of supervision, is that an offender shall not associate with persons with known criminal records or who are engaged in criminal activity nor work as an informant for a law enforcement agency. As noted in the probation manual, "As a general rule, it is inconsistent with the goals of supervision for probationers and supervised releasees to act as informants" (Guide to Judiciary Policies and Procedures, Volume 10, Chapter 4, Section G.4. An informant is defined as an individual who associates with persons with criminal records or who are engaged in criminal activity for the purpose of furnishing information to, or acting as an undercover agent for, a law enforcement agency on a confidential basis. Under its authority to modify conditions of supervision, the Court may grant an exception to this policy and permit an offender to serve as an informant in exceptional circumstances (e.g. where such service would likely result in the conviction of a major criminal or where national security is involved). A. Approval Procedures A request for an offender to act as an informant shall be made by the U. S. Attorney to the Court on behalf of the investigative agency. Such requests may occur during the sentencing process in conjunction with a recommendation for departure due to substantial assistance (Sentencing Guideline 5K1.1), in conjunction with a Rule 35 motion subsequent to sentencing, or as a modification of conditions once the offender has been placed under supervision. Irrespective of the particular circumstances, participation by an offender as an informant while under supervision requires approval of the Court. In order to make an appropriate assessment of the recommendation to the Court, the U.S. Attorney shall submit a letter to the Chief U. S. Probation Officer containing the proposed operating instructions to the offender, information regarding the significance of the intended target of the investigation, an evaluation of the risk to the offender, the time period for participation as an informant, projected monetary compensation, and a statement as to why the potential benefit to the government outweighs the risk of the offender's reinvolvement with criminal associates. Except where emergency circumstances exist, the letter requesting approval to use the offender as an informant should be made at least 10 days prior to the proposed use of the informant to allow sufficient time for review. Following review of the request to allow use of an offender as an informant, the Chief Probation Officer or a designee will submit a memorandum to the Court evaluating the request and making a recommendation for the Court's action. B. Operating Procedures These procedures must be included in the written agreement entered into by the offender, his/her attorney, the U. S. Attorney, and the sponsoring agency. Prior to the commencement of informant activities, the probation officer shall discuss the following requirements with the designated "case officer" from the law enforcement agency: 1. The offender shall not participate in any activity that would constitute a crime under state or federal laws without authority and approval of a law enforcement agency. 2. The offender shall not be used in any manner which might jeopardize his or her safety without prior approval of the Court. 3. Any development that would require any additional significant change in the operating instructions or conditions of supervision shall be brought to the attention of the probation officer and submitted to the Court for approval. 4. The time period for participation as an informant should not normally exceed 90 days without prior approval of the Court. In the event that circumstances develop that would indicate the need for an extension beyond the 90 days, a written request shall be made by the U. S. Attorney to the Court for approval. 5. At the conclusion of the authorized period for participation as an informant, the probation officer shall specifically advise in writing the offender that he or she is no longer authorized to act as an informant and shall refrain from all associations or activities previously authorized by the Court. 6. The probation officer shall submit periodic reports to the Court as necessary to make changes in the agreement and a closing progress report to the Court. 7. During the period of the offender's service as an informant, the sponsoring agency shall be responsible for promptly bringing to the attention of the Court, either directly or through the probation office, any violations of the cooperation agreement, including any other criminal activity. The sponsoring agency will also be responsible for informing the probation office whenever the sponsoring agency believes that the probation office staff is or may be in danger due to the activity of the offender. When possible, the notice should be made in writing.