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BOCUMENT
Sensitive
Investigative Operatinme Guidelines
PAG
gursuant to (1) of pen registar or trap and trare device without application for the authorizing order inataliation shall constitute vislation of
General trap and trace provision mirrors the ber trap and trace devices in Federal investigations is broadened to Include "any Assistant Attorney General, my acting Assistant Attorney stion 251817), the sme Assistant Altarney General. Second, the argency situations involving "conspir piraterial activities the the national security intarunt. In those rare situations shere "emergency" tray and trace sould be required for use in situatione the Trace devices as well The rational Encastening national security investigations, which include criminal espionage or (1) to enphasizing that the situation, although threateni security, either involves an immediate danger of death en serious plyeital ts any perace or that the situation concer'sa annepiraterial activities characteristic of organisedime terrorist group's plan to benh building) of Sovastigative or law enforcement officers are dealing with the
EFFECTIVE 01/23/92
11. 10-14.1.5.)|
DNOTE MANDAL MATTERS, SEX PCI ENDERCOVER ACTIVITIES
The undercover technique is one of the most effective scenestul investigat Isola the Federal Bursau of Investigation has Envestigata crime
PAINTED: 03/14/94
Sensitive
Investigative Operations Guidelines
PAGE 10-
wisely. The conduct of unders which vers initially approved in 1980 and revie GUIDE FOR UNDILACOVER AND SENSITIVE OPERATIONE policies and procedures concerning the conduct of DCOs has been disseminated to the Field. The field effics undercover coordinator (UCC) and Undercover and Sanci Criminal lavestigative Division lasdquarters, should be comaulted questions relating to 100.
EFFECTIVE: 12/07/93
10-11.1 Deleted
EFFECTIVE: 10/18/93
10-11.2 Dainted
EFFECTIVE: 10/18/93
10-11.3 Deleted
FFECTIVE: 10/18/93
Sensitive
PAINTED: 03/14/96
Sensitive
Matus of Investigative Operatione
10-11.4 Deleted
EFFECTIVE: 10/18/13
10-11.5 Dalstat
EFFECTIVE: 10/18/83
10-11-6
Deistee
EFFECTIVE: 16/28/91
10-11.7
Deleted
EFFECTIVE 8/28/1
10-11.8 Moved and tatumbered as 30-10
EFFECTIVE 08/28/91
10-11.8
Deleted
EFFECTIVE: 08/28/91
10-12 USE OF HYPNOSIS AR INVESTIGATIVE AID
Sensitive
10-300
Manusi of Investigative
Guideline
PAGE 10-100
10-14.1.5 Undercover Funding Authority
Request Shar FCI and Group II Undercover Operations may be funded from Group I Undercover Operations are funded ded from PRI funds if the draft syetenis insufficient to fund the operation. the craft paten Larger FCI and II saans way use advanced 10-11, of this manual, "PRI UNDERCOVER ACTIVIT NATTERS Part undercover operations in FCI matters is dinsaned wign Counterintelligence Manual
EFFECTIVE: 12/07/13
10-14.1.4
Buy-Buat Manay Funding Authority
(1) and BuyBuy case basis to provide financial credibility available in a carby t/informant ant funds. Soch funde Leave the care, custody or amtral of the FBI. They are in be riginally authorized an returned to FR180 when no longer needed by the case for which their they bacherquently
federsily insured inde deposite institution without an essuption from the Attorney General. operation. Chervise authorized,
(3) The funda may be used in a display of reinterse to consummate illegal transaction Duy Buat) scanario.
62
of up wina Buy-Dust situation. approved advance by FETRно.
7E
Requeste
aperity:
PRINTED: 03/14/94
FEDERAL BUREAU OF INVESTIGATION
FREEDOM OF INFORMATION/PRIVACY ACTS SECTION COVER SHEET
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1. ΙΝΤΡΩΙΚUCTION
11. DEFINITIONS
111. GENERAL AUTHORITY
IV. AUTHORIZATION OF UNDERCOVER OPERATIONS
A. General Approval Standards
B. Undercover Operations Which May be Authorized by the Special Agent in Charge (SAC)
c. Operations Which Must be Approved at PRIBO
D. Criminal Undercover Operations Review Committee
8. Approval by the Director. Deputy Director, or Designated Assistant Director
F. Application/Notification to FBIBO
G. Duration of Authorization
п. Participation in otherwise Illegal Activity by Undercover Exployees
I. Emergency Authorization
V. PROTECTING INNOCENT PARTIES AGAINST ENTRAPONT
A. Entrapment
B. Authorization Requirements
c. Exception
VI. MONITORING AND CONTROL OF UNDERCOVER OPERATIONS
A. Preparation of Undercover Employees, Informants, and Cooperating Witnesses
B. Review of Conduct
c. Continuing Consultation with the Appropriate Federal Prosecutor
D. Serious Legal, Ethical, Prosecutive, or Departmental Policy Questions, and Previously. Unforeseen Sensitive Circumstances
E. Annual Report of the Undercover Review Committee
7. Deposit of Proceeds; Liquidation of Proprietaries
VII. RESERVATION
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INTRODUCTION
The use of the undercover technique, including proprietary business entities, is essential to the detection, prevention, and prosecution of white collar crimes, public corruption, terrorian, organized crise, offenses involving ing controlled c substances, and other priority areas of investigation. However, these techniquen inherently involve an element of deception and may require cooperation with persons whose motivation and conduct are open to question, and so should be carefully considered and monitored.
11. DEFINITIONS
A. "Undercover Activities" means any investigative activity involving the use of an assumed name or cover identity by an employee of the FBI or another Federal, state, or local law enforcement organization working with the FBI.
B. "Undercover Operation means an investigation, involving series of related undercover activities over a period of time by an undercover employee. For purposes of these Cuidelines, "series of related undercover activities" generally consists of nore than three separate contacts by an undercover employee with the individual (s) under under investigation. tion. However, undercover activity involving sensitive or fiscal circumstances constitutes an undercover operation regardless of the number of contacts involved.
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III. GENERAL AUTHORITY
The FBI may use undercover activities and conduct undercover operations, pursuant to these Guidelines, that are approp are appropriate to carry out its law enforcement responsibilities. T These guidelines do not apply to investigations utilizing confidential informants, cooperating witnesses or cooperating subjects, unless the investigation also utilizes an undercover enployee. The FBI, through the development of internal policy, may choose to apply these Guidelines to certain confidential informant, cooperating witness, and cooperating subject operations by referring such matters to the Undercover Review Committee pursuant to Section IV. Paragraph (D) (6). agatio
Under this authority, the FBI may participate in joint undercover activities with other law enforcement agencies and may operate a proprietary to the extent necessary to maintain an operation's cover or effectiveness. All joint undercover operationn are to be conducted pursuant to these Guidelines,
IV. AUTHORIZATION OF UNDERCOVER OPERATIONS
A. General Approval Standards: Any official considering approval or authorization of a propose zation of a proposed undercover application shall weigh the risks and benefits of the operation, giving careful consideration to the following factors:
(1) The risk of personal injury to individuals, property damage, financial loss to persons or businesses, damage to reputation, or other harn to persons:
(2) The risk of civil liability or other loss to the Government:
(3) The risk of invasion of privacy or interference with privileged or confidential relationships:
(4) The risk that individuals engaged in undercover operations may become involved in illegal conduct restricted in paragraph IV.H. below; and
(5) The suitability of Government participation in the type of activity that is expected to occur during the operation.
Undercover Operations ons Which May be Authorized by the Special Agent in Charge (SAC)
(1) The establishment, extension, or renewal of all undercover operations to be supervised by a given field office must be approved by the SAC. If the undercover operation does not involve any of the factors listed in paragraph IV.C. below, this approval shall constitute
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authorization for the operation. Approval requires written determination, stating supporting facts and circumstances, that:
(a) Initiation of investigative activity regarding the alleged criminal conduct or criminal enterprise is warranted under any applicable departmental guidelines:
(b) The proposed undercover operation appears to be an effective means of obtaining evidence or necessary information. This finding should include a statement of what prior investigation has been conducted and what chance the operation. has of obtaining evidence or necessary information concerning the alleged criminal conduct or criminal enterprise:
(c) The undercover operation will be conducted with mininal intrusion consistent with the need to collect the evidence or information in a timely and effective manner;
(d) Approval confidential sourcthe use of any informant or been obtained as required by the Attorney General's Guidelines on Use of Informants and Confidential Sources:
(e) Any foreseeable participation by an undercover employee in illegal activity that can be approved ed by by the SAC on his or her own authority is justified by the factors noted in paragraph H
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maintained in the appropriate field office. However, all undercover operations which must be authorized at FBIHQ must be approved by the SAC.
(4) A copy of all written approvals described in (1) above shall be forwarded promptly to FBINQ.
c. Operations Which Must be Approved at FBIHQ
(1) Fiscal Circumstances
In all undercover operations involving the fiscal circumstances set out below, the SAC shall submit an application to PBING in accordance with paragraph IV.F. below. A recommendation for authorization may be forwarded directly to the Director or designated Assistant Director or, in operations involving only fiscal circunstances letters (a)-(c), to the designated Deputy Assistant Director for final review and authorization, provided that the approval levels conform to all applicable laws.
Applications for approval of undercover operations. referred to FBING only because of fiscal circumstances need not be considered or approved by the Undercover Review Committee.
For purpose of these Guidelines, an undercover operation involves fiscal circumstances if there is a reasonable expectation that the undercover operation vill
(a) Require the purchase or lease of property, equipment, buildings, or facilities: the alteration of buildings or facilities; a contract for construction or alteration of buildings or facilities: or prepayment of more than one month's rent:
NOTE: The purchase, rental, or lease of property using an assumed nane or cover identity to facilitate physical or technical surveillance is not an undercover operation for purposes of these Guidelines. However, since the expenditure of appropriated funds is involved, approval must be obtained from FBINQ in conformance with applicable laws. aeradoadde
(b) Require the deposit of appropriated funds or proceeds generated by the undercover operation into banks or other financial institutions:
(c) Use the proceeds generated by the undercover operation to offset necessary and reasonable expenses of the operation:
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(4) Require a reimbursement or compensation agreement with cooperating individuals or entities for services or losses incurred by them in aid of the operation (any reimbursement agreement entered into with third parties must be reviewed by the FBI's Legal Counsel Division): or
(e) Exceed the limitations on duration or commitment of resources established by the Director for operations initiated at the field office level.
(2) Sensitive Circumstances
In all undercover operations involving any sensitive circunstances listed below, the SAC shall submit an application to FBIHQ in accordance with paragraph F below. The application shall be reviewed by appropriate supervisory personnel at FBIHQ and, if favorably recommended, sent to the Undercover Review Committee for consideration. The application shall then be forwarded to the Director or a designated Assistant Director, who may approve or disapprove the application.
For purposes of these Guidelines, sensitive circunstances are involved if there is a reasonable expectation that the undercover operation will in-volve--
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For purposes of these Guidelines, sensitive circumstances are are involved if there is a reasonable expectation that the undercover operation will in-volve--
(a) an investigation of possible criminal conduct by any elected or appointed official, or political candidate, for a judicial, legislative, management, or executive-level position of trust in a Federal, state, or local governmental entity or political subdivision thereof:
(b) an investigation of nvestigation of any public official at the Federal, state, or local level in any natter involving systemic corruption of any governmental function:
(c) an investigation of possible of possible criminal conduct by any foreign official or government, religious organization, political organization, or the news media:
NOTE: There are sone circumstances involving officials in judicial, legislative, management, or executive-level positions which may logically be considered nonsensitive. ve. In such instances, the Section Chief, White-Collar Crimes Section, FBIHO, who is a menber of the Criminal Undercover Operations Review Committee and han national perspective on natters involving public
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p. 15
officials, must be consulted for a determination as to whether the undercover operation should be presented to the Undercover Review Committee.
(d) Engaging in activity having a significant effect on or constituting a significan into the legitonate operationione, or local governmental of entity:
(e) Establishing, acquiring, or using a proprietary:
(f) Providing goods or services which are essential to the commission of a crime, which goods and services are reasonably unavailable to a subject of the investigation except fron the Government:
(g) Activity that is proscribed by Federal, state, or local lav as a felony or that is otherwise a serious crime but not including the purchase of stolen or contraband goods: the delivery or sale by the Government of stolen tolen property whose ownership cannot be determined; the controlled delivery of y of drugs which will not enter commerce: the payments of bribes which are not included in the other sensitive circumstances; or the making of false representations to third parties in concealment of personal identity or the true ownership of a proprietary (this exemption does not include any statenent under oath or the penalties of perjury). (See Paragraph H below):
NOTE: Some of the above activities, including the controlled delivery of drugs and bribe payments, are subject to specific review and approval procedures. These matters must be coordinated with FBING.
(h) A significant risk that a person participating in an undercover operation will be arrested or will supply falsely sworn testimony or false documentation in any legal or administrative proceeding (See paragraph H below):
(1) Attendance at a meeting or participation in communications between any individual and his or her lawyer,
(3) A significant risk that a third party will enter into a professional or confidential relationship with a person participating in an undercover operation who is acting as an an attorney, physician, clergyman, or member of the news media/
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(k) A request to an attorney, physician, member of the clergy, or other person for information that would ordinarily be privileged or to a member of the news media concerning an individual with when the news person is known to have a professional or confidential relationship:
(1) Participation in the activities of a group under investigation as part of a Domestic Security Investigation or recruiting a person from within such group as an informant:
(m) A significant risk of violence or physical injury to individuals or a significant risk of financial loss:
(n) Activities which could result in significant claims against the United States arising in tort, contract, or for compensation for the "taking of property:
(0) Untrue representations by a person participating in the undercover operation operation concerning the activities or involvement of any third person without that individual's knowledge or consent.
D. Criminal Undercover Operations Review Committee (Undercover Review Committee)
(1) The Undercover Review Committee shall consist of appropriate employees of the FBI designated by the Director and Criminal Division attorneys designated by the Assistant Attorney General in charge of the Criminal Division, DOJ, to be chaired by a designee of the Director.
(2) When an application from an SAC for approval of an undercover operation involving sensitive circumstances specified in paragraph C(2) is received by FBIHQ, upon recommendation by the FBINQ substantive section, the Committee members will meet to review the application. Criminal Division members of the Committee nay consult with appropriate FBI personnel, senior DOJ officials, and the United States Attorney as deemed appropriate. The Connittee shall submit the application to the Director or designated Assistant Director with a recommendation for approval or disapproval of the request and any recommended changes or asendments to the proposal.
(3) In addition to the considerations contained in IV.A. above, the Committee shall also examine the application to determine whether adequate measures have
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been taken to minimize the incidence of sensitive circumstances and reduce the risks of harm and intrusion that are created by such circumstances. the Committee recommends approval of an undercover operation, the recommendation shall include a brief written statement explaining why the operation nerits approval in light of the anticipated occurrence of sensitive circumstances.
(4) The Committee shall recommend approval of an undercover operation only upon reaching a consensus, provided that:
(a) If one or more of the designees of the Assistant Attorney General in charge of the Criminal Division does not join in a recommendation for approval of a proposed operation because of legal, ethical, prosecutive, or departmental policy considerations, the designee shall promptly advise the Assistant Attorney General and no further action shall be taken on the proposal until the designated Assistant Director has had an opportunity to consult with the Assistant Attorney General and
(b) If, upon consultation, the Assistant Attorney General disagrees with a decision by the designated Assistant Director to approve the t proposed operation, no further action shall be taken on the proposal without the approval of the Deputy Attorney General or the Attorney General.
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(5) The Connittee should consult the Legal Counsel Division of the FBI and the Office of Legal Counsel or other appropriate division or office at DOJ about any eignificant unsettled legal questions concerning authority for, or the conduct of, a proposed undercover operation.
) The Director, Assistant Attorney General, or other (6) official designated by them nay refer any sensitive investigative matter, including informant, cooperating witness, and cooperating subject operations, to the Undercover Review Committee for advice, recommendation or conment, regardless of whether an undercover operation is involved.
(7) The United States Attorney, Special Agent in Charge or any member of their staffs, may attend the Criminal Undercover Operations Review Committee in order to advocate for the approval of an undercover operation.
(8) If the Special Agent in Charge and the United States Attorney jointly disagree with any stipulation
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set by the Criminal Undercover Operations Review Connittee regarding the approval of an undercover operation, they may consult with the chairman of the Criminal Undercover Operations Review Committee who may schedule a meeting of the committee to reconsider the issue in question.
(9) At any time during the undercover operation the Special Agent in Charge can appeal appeal any Headquarters decision directly to the Assis Assistant Director. Likewise, the United States Attorney can appeal directly to the Assistant Attorney General, Criminal Division, or the Deputy Attorney General as appropriate.
E. Approval by the pirector, Deputy Director, Associate Deputy Director-Investigations, or Designated Assistant Pirector
A designated Assistant Director may approve an undercover operation considered by the Undercover Review Committee, unless the investigation involves sensitive circumstances (1) or (m). Except pursuant to the limited circumstances described in Section I below, only the Director, Deputy Director, or Associate Deputy Director-Investigations may approve a proposed operation if a reasonable expectation exists that:
(1) The undercover ver operation will be used to participate in the activities of a group under investigation as part of a Domestic Security Investigation or to recruit a person from within such group as an informant or confidential source (Sensitive Circunstance (1))
(2) There may be a significant risk of violence or personal injury to individuals or a significant risk of financial loss (Sensitive Circumstance (n)).
F. Application/Notification to PBING
(1) Application to FBINQ must be nede for any undercover operation requiring FBIHQ approval. Each application shall include:
(a) The written SAC approval described in B(1) above!
(b) A description of the proposed operation and the particular cover to be employed: any informants or other cooperating persons who will assist in the operation, in, including background information, a n, arrest record, and plea agreements: the particular offense or criminal enterprise under investigation and any individuals known to be involved:
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(c) A statement of the period of time for which the operation would be maintained:
(d) A description of how the requirenents concerning any inducements to be offered as discussed in Section V.B. belcw have been met, and
(e) A statement of proposed expenses.
(2) Applications for approval of undercover operations involving sensitive circumstances listed in paragraph C(2) shall also include the following information:
(a) A statement of which which circumstances are reasonably expected to occur, what the facts are likely to be, to be, and why the undercover operation merits approval in light of the circumstances, including:
(1) For undercover operations involving sensitive circumstance (g), a statement why the participation in otherwise illegal activity is justified under the requirenents of paragraph i below, and a letter from the appropriate Federal prosecutor pursuant to paragraph F(2) (b):
(11) For undercover operations involving sensitive circumstance (1), a statement why the infiltration or recruitment is necessary and a description of procedures to ninimize any acquisition, retention, and dissemination of information that does not relate to the matter under investigation or to other authorized investigative activity.
(b) A letter from the appropriate Federal deral prosecutor indicating that he or she ha has reviewed the proposed operation, including the sensitive circumstances reasonably expected to occur, agrees with the proposal and its legality, and will prosecute any meritorious case that has developed. The letter should include a finding that the proposed investigation would be an appropriate use of the undercover technique and that the potential prosecutive benefits outweigh any direct costs or risks of other harm.
(3) An application for the extension or renewal of an undercover operation should describe the results obtained from the operation or explain any failure to obtain significant results and, where sensitive circumstances are involved, should include a letter from the appropriate Federal prosecutor favoring the extension or renewal of authority.
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Duration of Authorization
(1) An undercover operation approved by FBIHQ may not continue longer than is necessary to achieve the objectives specified in the authorization, nor in any evant longer than six months, without new authorization to proceed, except pursuant to sub subparagraph (3) below.
(2) If there is significant change in either the directs direction or objectives of an undercover operation approved by FBIHQ, the operation must be reviewed by the Undercover Review Connittee to determine whether new authorization is necessary.
(3) An undercover operation which requires review by the Undercover Review Committee may be initiated or extended on an interim basis by the designated Assistant Director in the event of exigent circumstances, for a period not to exceed 30 days. In the case of an initial authorization, budget enhancement, or change in focus, the interim authority must be ratified by the Undercover Review Committee at its next scheduled meeting.
(4) An undercover operation initially authorized by the SAC must be reauthorized by a designated Assistant Director, pursuant to paragraphs IV.C-P, if it lasts longer than 12 months or involves the expenditure of more than $40,000 ($100,000 in drug cases of which a maximum of $40,000 is for operational expenses), or such other amount that is set from time to time by the Director. No undercover operation approved at the field office level may continue for more than one year without obtaining approval at FBIHO.
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(4) An undercover operation initially authorized by the SAC must be reauthorized by a designated Assistant Director, pursuant to paragraphs IV.C-F, if it lasts longer than 12 months or involves the expenditure of more than $40,000 ($100,000 in drug cases of which a maxinun of $40,000 is for operational expenses), or such other amount that is set from time to tine by the Director. No undercover operation approved at the field office level may continue for more than one year without obtaining approval at FBIHO.
(5) An undercover operation approved by an SAC is deemed to commence on the date approved, not on the date covert activity is begun.
(6) Among the factors tors to be considered in a determination by any approving official of whether an undercover operation should be renewed or extended are:
(a) The extent to which the operation has produced the results anticipated when it was established:
(b) The potential for future success beyond that initially targeted:
(c) The extent to which the investigation can continue without exposing the underer operation: and
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(d) The extent to which continuation of the investigation may cause injury, financial or otherwise, to innocent parties.
H. Participation in Otherwise Illegal Activity by Undercover Employees
Except when authorized pursuant to these Guidelines, no undercover employee shall engage in any activity that would constitute a violation of Federal, state, or local law if engaged in by a private person acting without authorization. For purposes of these Guidelines, such activity is referred to as otherwise illegal activity.
(1) Justification: No official shall recommend or approve participation by an undercover employee in otherwise illegal activity unless the participation is justified:
(a) to obtain information or evidence necessary for the success of the investigation and not reasonably available without participation in the otherwise illegal activity:
(b) to establish or naintain credibility of a cover identity: or
(c) to prevent death or serious bodily injury.
(2) MiniMiRation: The FBI shall take reasonable steps to minimize the participation of an undercover employee in any otherwise illegal activity.
(3) Prohibitions: An undercover employee shall not
)participate in any act of violence except in (a) Participa
(b) initiate or instigate any plan to comnit criminal acts except in accordance with Part V (Avoidance of Entrapment) below, or
(c) participate in conduct which would constitute unlawful investigative techniques (e.g., illegal wiretapping, illegal illegal ma mail openings, breaking and entering, or trespass amounting to an illegal search).
(4) Belf-Defense: Nothing in these Guidelines prohibits an undercover employee from taking reasonable neasures of self-defense in an emergency to protect his or her own life or the lives of others against wrongful force. Such measures shall be reported to the appropriate Federal prosecutor and FBIHQ, who shall
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inform the Assistant Attorney General for the Criminal Division soon as possible.
(5) Authorization:
(a) The SAC must approve all undercover operations and activities, including those which contemplate participation in otherwise illegal activity. This approval shall constitute authorization of:
(1) otherwise illegal activity which is misdemeanor or similar minor crine under Federal, state, or local law:
(ii) consensual monitoring, even if a crine under local law:
(iii) the purchase of stolen or contraband goods:
(iv) the delivery or sale of stolen property which cannot be traced to the rightful owner:
(v) the controlled delivery of drugs which will not enter commerce:
(vi) the payment of bribes which in not included in the sensitive circumstances:
(vii) the making of false Ise representations to third parties in concealment of personal identity or the true ownership of a proprietary (but not any statement under oath or the penalties of perjury, which must be authorized pursuant to subparagraph (b) below).
(b) Participation in otherwise illegal activity which is a felony or its equivalent under Federal. state, or local law requires additional authorization by the Assistant Director after review by the Undercover Review Committee. See Section IV(E),
(c) Participation in otherwise illegal activity which involves a significant risk of violence or physical injury requires authorization by the Director or Deputy Director after review by the Undercover Review Committee. See Section IV(E).
(d) If an undercover employee believes it to be necessary and appropriate under the standards set out in subparagraph (1) above, above, to participate in otherwise illegal activity that was not foreseen
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or anticipated, 1, every effort should be made to consult with the 'SAC, who shall seek emergency interin authority from the designated Assistant Director, and review by the Undercover Review Committee if possible, or, if necessary, nay provide emergency authorization under paragraph 1 below. If consultation is impossible, and the undercover employee concludes that there is an immediate and grave threat to life, physical safety, or property, the undercover employee may participate in the otherwise illegal activity, so long as he does not take part in and makes every effort to prevent any act of violence. A report to the SAC shall be made as soon as possible, who shall submit a written report to FBIHQ, which shall promptly inform the Undercover Review Committee. A decision by an undercover employee to participate in otherwise illegal activity under this subsection may be retroactively authorized if appropriate.
(e) If an undercover operation results in violence in the course of criminal activity, and an undercover employee, informant, or cooperati witness has participated in any manner in the criminal activity, the SAC shall immediately. inform the appropriate Federal prosecutor and FBIHQ, which shall inform the Assistant Attorney General in charge of the Criminal Division as soon as possible.
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1. Emergency Authorization
(1) In situations which require the prior written authorization of the SAC, the SAC, may orelly approve an undercover operation when he or she determines that a significant and unanticipated i investigative opportunity would be lost were the time taken to prepare a written authorization. The required written authorization, with the justification for the oral approval included, shall be prepared promptly and forvarded to FSIHQ.
(2) Energency interin authorization procedures are in place place within within PDING FBINQ that that provide for expeditious reviev and authorization of a proposed undercover operation. See G. (3). If the SAC concludes that an emergency situation exists which makes even this expedited procedure too lengthy, in the following situations, the SAC may authorize the undercover operation:
(a) In situations which would otherwise require approval by the designated Assistant Director, the SAC may approve an undercover operation when he or she determines that without inmediate initiation,
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extension, or renewal of an operation, life, property, or personal safety of individuals would be placed in serious danger.
(b) in situations which would otherwise require approval by the Director or Deputy Director, the SAC may approve an undercover operation when he or she determines that the initiation, extension, or renewal of an operation is imperative to protect life or prevent serious injury.
Before providing authorization in these situations, the SAC shall attempt to consult with the appropriate Federal prosecutor and with a designated Assistant Director.
(3) The power to provide energency authorizations nder subparagraph (2) nay not be delegated pursuant to IV.B(3).
(4) In situations arising under subparagraph (2), a written application for approval must be subnitted to PRINO within 4 48 hours after the operation has been initiated, extended, or renewed, together with the initial finding and a written description of the emergency situation. As soon as it is notified of an emergency authorization, FBIHQ shall notify the DOJ members of the Undercover Review Connittee. If the subsequent written application for approval is denied, a full report of all activity undertaken during the course of the operation must be submitted to the Director, who shall inform the Deputy Attorney General.
V. PROTECTING INNOCENT PARTIES AGAINST ENTRAPКЕНТ
A. Entrapment
Entrapment must be scrupulously avoided. Entrapment occurs when the Government implants in the mind of person who is not othervise disposed to commit the offense the disposition to commit the offense and then induces the commission ssion of that offense in order to prosecute.
B. Authorization Requirements
In addition to to the legal prohibition on entrapment, additional restrictions limit FBI undercover activity to ensure, insofar as it is possible, that entrapment issues do not adversely affect criminal prosecutions. As a result, no undercover activity involving an inducement to an individual to engage in crine shall be authorized unless the approving official is satisfied that
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(1) The illegal nature of the activity is reasonably clear to potential subjects: and
(2) The nature of any inducement offered is justifiable in view of the character of the illegal transaction in which the individual is Invited to engage and
(3) There is a reasonable expectation that offering the inducement will reveal illegal activities, and
(4) One of the two following limitations is net:
(1) There is reasonable indication that the bject is engaging, has engaged, or is likely to engage in the illegal activity proposed or in similar illegal conduct, or,
(ii) The opportunity for illegal activity has been structured so that that there is reason to believe that any persons drawn to the opportunity, or brought to it, are predisposed to engage in the contemplated 11legal conduct.
C. Exception
The alternative requirements of subparagraph B(4), while not required by law, are imposed to ensure that the Government does not offer inducements to engage in crine to persons who are not predisposed to do so. These standards can be waived aived only by the Director upon a written finding that the activities are necessary to protect life or prevent other serious harn.
VI. MONITORING AND CONTROL OF UNDERCOVER OPERATIONS
Preparation of Undercover Employees. Informants, and Cooperating witnesses
(1) Prior to the investigation, the SAC or a designated Supervisory Special Agent shall review with each undercover employee the conduct that the undercover employee is e yee is expected to undertake and other conduct that may be necessary during the investigation. The SAC or Agent shall discuss with each undercover enployee any of the sensitive or fiscal circunstances. specified in paragraphs IV.C(1) or (2) that are reasonably likely to occur.
(2) Each undercover employee shall be instructed that he or she shall not participate in any act of violence: initiate or instigate any plan to connit criminal acts:
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use unlawful investigative techniques to obtain Information or evidence: or engage in any conduct that would violate restrictions on investigative techniques or FBI conduct contained in the Attorney Generel's Guidelines or departmental policy: and that, except in an emergency situation as set out in paragraph IV.H. (5) (d). ), he or she shall not participate in any illegal activity for which authorization has not been obtained these Guidelines. The undercover employee shall be instructed in the law of entrapment. When an undercover employee learns that persons under investigation intend to commit a violent crine, he or she shall try to discourage the violence.
B. Review of Conduct
Fron time to time, during the course of the undercover operation, the SAC shall review the conduct of the undercover employee(s) and others participating in the undercover operation, including any propo any proposed or reasonable foreseeable conduct for the remainder of the investigation. Any findings of impermissible conduct shall be discussed with the individual, promptly reported to the designated Assistant Director and the nenbers pers of the Undercover Review Committee, and a determination shall be nade as to whether the a individual should continue his or her participation in the investigation.
c. Continuing consultation with the Appropriate Federal Prosecutor