electronic investigative techniques

USABulletin

SEPTEMBER 1997 VOL. 45, NO. 5

ELECTRONIC INVESTIGATIVE TECHNIQUES

In This Issue

Interview with Director Frederick D. Hess, Office of Enforcement Operations, Criminal Division. . . . . . . . . . . . . . . . . . . . . . . . . .2

OEOs Role in Electronic Surveillance. . . . . . . . . . 8

Electronic Surveillance Guide. . . . . . . . . . . . . . . . .19

Defending Wiretaps. . . . . . . . . . . . . . . . . . . . . . . . .26

InterviewA DEA Agents Perspective. . . . . . . . . 28

Electronic Surveillance: Does it Bug You?. . . . . . . 32

New Guidance on Parallel Proceedings. . . . . . . . . . 48

Release of Health Care Fraud Report. . . . . . . . . . . 49

Letter from the Editor-in-Chief

he next two issues of the Bulletin focus on the working relationships among the United States Attorneys offices,Tthe Criminal Divisions Office of Enforcement Operations (OEO) and Computer Crime & Intellectual PropertySection, and the Assistant Attorney General or Deputy Assistant Attorney General in the area of Title III, and

other electronic surveillance techniques. We have included articles, checklists, and interviews covering the approvalprocess for, and use of, Title III intercepts and related electronic surveillance methods in the investigation andprosecution of a variety of criminal cases.

The interview of OEO Director Frederick D. Hess is terrific. He provides us with insight into the history ofOEO, its inner workings, and the need to have OEO lawyers review applications to allow us to use these effective andpowerful investigative tools. Through the collective efforts of several OEO lawyers, we have a great article on the nutsand bolts of OEOs Title III approval process and highlights of several major Title III cases. Youll also find that thearticles submitted by Michael R. Sklaire of the Narcotic and Dangerous Drug Section are invaluable references whenfaced with what do we need to do to get . . . [electronic surveillance order] questions. AUSA Jeffrey W. Johnson haswritten a very common sense article regarding his approach to wiretaps. We also included an interview with DEASpecial Agent Mark Styron regarding his perspective on working relationships between AUSAs and Agents in wiretapcases. AUSAs Melissa J. Annis, Monica Bachner, and Patricia Diaz share their experiences with wiretapinvestigations, including some of the obstacles AUSAs face when supervising wiretaps. Each author offers terrificsuggestions and things to think about.

Please take time to review the inside back cover of the magazine for our publication schedule over the nextseveral months. If you are interested in writing an article on any of these topics, please contact me. Finally, if you haveany comments or constructive criticisms regarding past issues, call me at (809) 773-3920 or Email me atAVISC01(DNISSMAN). Our intent is to make the Bulletin a practical and useful resource; our method of doing so isthrough your continued contributions, comments, and suggestions.

DAVID MARSHALL NISSMAN

Published byExecutive Office for United States Attorneys

Washington, D.C.Carol DiBattiste, Director

United States Attorneys Bulletin Staff, (202) 616-1681David Marshall Nissman, Editor-in-Chief

Wanda J. Morat, EditorBarbara J. Jackson, EditorPatrice A. Floria, Editor

Susan Dye Bartley, Graphic DesignerNina M. Ingram, Student Assistant

Send distribution address and quantity corrections to: Barbara Jackson, Executive Office for United States Attorneys, Bicentennial Building, Room 6011, 600 E Street, N.W.,

Washington, D.C. 20530-0001(202) 616-8407 or fax (202) 616-6653

SEPTEMBER 1997 UNITED STATES ATTORNEYS BULLETIN 1

Contents

2 INTERVIEW WITH DIRECTOR 50 UNITED STATES ATTORNEYSFREDERICK D. HESS, OFFICES/EXECUTIVE OFFICE FOR

OFFICE OF ENFORCEMENT UNITED STATES ATTORNEYSOPERATIONS

8 The Office of Enforcement OperationsIts Role in the Area of ElectronicSurveillance

19 Electronic Surveillance Guide24 Dont Forget To . . .26 Defending Wiretaps: Think in the

Beginning What the End Will Bring28 Wiretaps: A DEA Agents Perspective Appointments

Interview with Special Agent Mark Styron Office of the Solicitor General32 Electronic Surveillance: Does it Bug You? Office of Justice Programs39 So Youve Always Wanted to do a Wiretap: Immigration and Naturalization Service

Practical Tips If You Never Have41 Wiretap Checklist45 Common (and Uncommon) Problems

Encountered During the Course of Title IIIInvestigations

47 ATTORNEY GENERAL HIGHLIGHTSAppointments GS-14 Experienced AttorneysNew Guidance on Parallel Proceedings Environment and Natural Resources Division,National Church Arson Task Force Releases General Litigation SectionGS-13 to

Report GS-15 Experienced AttorneyNational Methamphetamine Strategy Update Immigration and Naturalization Service, President Supports Change in Cocaine Office of Naturalization Operations

Penalties (detail)AttorneyImmigration and Reform Transition Act of Executive Office for Immigration

1997 ReviewImmigration JudgesRelease of FY 95-96 Health Care Fraud Justice Management Division, Personnel

Report StaffGS-13 to GS-14 ExperiencedSeventh Anniversary of ADA AttorneyAdditional Cops to Fight Crime United States Trustrees Office, San Child Safety Locks Antonio, TexasGS-11 to GS-14

AppointmentsResignations/RetirementSignificant Issues/EventsEOUSA Staff UpdateOffice of Legal EducationComputer Tips

69 DOJ H IGHLIGHTS

77 CAREER OPPORTUNITIESCivil Rights Division, Educational

Opportunities SectionGS-12 toGS-15 Trial Attorneys

Environment and Natural Resources Division,Environmental Defense SectionGS-12 to

Experienced Attorney

Appendix AOLE Course Nomination FormAppendix BOLE Videotapes

2 UNITED STATES ATTORNEYS BULLETIN SEPTEMBER 1997

Interview with Director Frederick D. HessOffice of Enforcement Operations

Director Frederick D. HessOffice of Enforcement Operations

rederick D. Hess has served as Director of the OfficeFof Enforcement Operations (OEO) for more than 15years. He received his Bachelor of Arts degree fromColumbia College and Juris Doctor degree fromBrooklyn Law School. In August 1967, he was appointedan attorney in the Criminal Division as part of theAttorney Generals Honors Program. Mr. Hess began hiscareer in the Department of Justice in the Legislation andSpecial Projects Section, where he served as DeputyChief from January 1974 until becoming AssociateDirector of the Office of Legal Support Services (OLSS)in February 1979. He was Acting Director of OLSS fromJanuary 1980 to June 1982, when OLSS was mergedwith OEO and he was named Director.

As Director of OEO, Mr. Hess oversees the use ofthe most sophisticated investigative tools in the FederalGovernment. Beyond reviewing United States Attorneysoffices requests for authorization to apply for courtorders approving the interception of wire, oral, and mostelectronic communications, OEOwith a staff ofapproximately 100 attorneys, analysts, paralegals, andsecretariesprovides the United States Attorneysoffices and the Federal law enforcement agencies with awide range of prosecutorial and investigative supportservices. OEO authorizes or denies the entry of allapplicants into the Federal Witness Security Program(WSP), and oversees matters relating to all aspects of theWSP; administers the International Prisoner Transfer and

S Visa programs; supervises the mechanism by whichFederal law enforcement officers or agents employed bythe Offices of the Inspectors General may becomeSpecial Deputy United States Marshals; and coordinatesrequests to immunize witnesses, subpoena attorneys,issue subpoenas to the press, close court proceedings, orsearch the offices of attorneys who are suspects or targetsof an investigation. In addition, OEO provides legaladvice to Federal, state, and local law enforcementagencies on the use of the Federal electronic surveillancestatutes; assists in developing Department policy onemerging technologies and telecommunications issues;and responds to requests made to the Criminal Divisionfor disclosure of information pursuant to the Freedom ofInformation Act and the Privacy Act. Upon request, OEOalso assists in the drafting of reply briefs involvingelectronic surveillance issues.

OEO Director Fred Hess (FH) was interviewed byAssistant United States Attorneys (AUSAs) DavidNissman (DN), Editor-in-Chief of the United StatesAttorneys Bulletin, and Jennifer Bolen (JB), NorthernDistrict of Texas. OEO Senior Associate DirectorMaureen Killion (MK) also participated in the interview.

DN: How do you view the working relationship betweenOEO and the United States Attorneys offices?

FH: When we get a call from the field, the attorneysattitude is not, What do you want? but, rather, to askwhat they can do to help. We have hardworking people,particularly in the Electronic Surveillance Unit. When D.Lowell Jensen, now a Federal district judge in SanFrancisco, was Assistant Attorney General of theCriminal Division, he coined a phrase for our office:The office that never sleeps.

DN: Do you personally review each affidavit?

FH: We are now in a situation where there are just toomany. Fifteen years ago, during the first year that I washere, there were 227 affidavits for review. The next yearthere were 360. Last year there were 1367. For seven oreight years, I read every affidavit, but its


Hess Receives Attorney General Award

On June 13, 1997, Director Frederick D. Hess,Office of Enforcement Operations (OEO), receivedthe Attorney Generals Mary C. Lawton LifetimeService Award in recognition of high standards ofexcellence and dedication exhibited during his 30-year career with the Department of Justice, andespecially during his 15-year tenure as head ofOEO. He supervised the implementation of avariety of sensitive and sophisticated investigativeor prosecutive programs, and handled inquiriespursuant to the Freedom of Information andPrivacy Act.

We dont go forward on new Title IIIapplications without a written request fromthe agencys headquarters telling us theywant to do it.

Frederick D. Hess

just not possible anymore. Also, the office is larger andhas many more functions that require my attention. WhileI no longer have time to read the incoming affidavits, I doreview the Electronic Surveillance Units actionmemoranda that summarize each electronic surveillancerequest for the Assistant Attorney General or DeputyAssistant Attorney General that must approve the requestbefore a court order may be sought.

On the incoming end, we like a senior person in theUnited States Attorneys office to sign off on the affidavitand let us know that this is a case that the United StatesAttorney wants to do. A Title III is a three-legged stool:the legs are the investigative agency, the United StatesAttorneys office, and our office. Like any three-leggedstool, if one leg falls off, the stool falls overso all threeparticipants have to approve. So when an affidavit is sentto this office, the agentsprimarily from DEA, FBI, andthe Customs Serviceshould also send a copy to theirheadquarters. The agency headquarters then does anattorneys action memo, are then given to the Unit Chief,independent review. We dont go forward on new Julie Wuslich, or her deputy, Janet Webb. One of themTitle III applications without a written request from thereviews the case file and may request additionalagencys headquarters telling us they want to do it. information or changes. Then this file comes to me or oneWiretaps are expensive. Weve always used the ballparkof the OEO Associate Directors. I read as many of themfigure of $50,000 for the cost of running a 30-day as I can. We then review it, and put a buckslip on it to thewiretap, because wiretaps are so agent time-intensive.Assistant Attorney General or one of the Deputy

When we get an affidavit, we log it in and assign itto a reviewing attorney and a senior attorney. The seniorattorney reads it quickly to make sure that there are nomajor problems with it, and then turns it over to thereviewing attorney. If there are problems with theaffidavitand we find them a good percentage of thetimethe reviewing attorney contacts the AssistantUnited States Attorney who will be applying for the TitleIII order. We raise the problems weve seen in theaffidavit, and discuss how the Assistant can get theaffidavit in shape so we can move it forward.

Once changes we request are made, the reviewingattorney writes a synopsis of the affidavita five or sixpage action memorandum. A case file is started thatcontains the application, affidavit, and any prior actionmemoranda (from previously handled, related Title IIIrequests). These documents, along with the OEO

Assistant Attorneys General. One of these high-levelDepartment officials reviews the Title III request and,almost invariably, will sign it. They have problems withthe requests once in a while, but major problems are rareafter the extensive review process in OEO.

DN: Who reviews the request when it goes to MainJustice?

FH: When I started here, Title III allowed for theAttorney Generals authority to be delegated only to theAssistant Attorney Generals level, which created a greatburden on the Assistant Attorney General especially asour numbers began to go up. We finally got that amendedin 1986 so that the authority can now be delegated to theAssistant Attorney General or the Deputy AssistantAttorneys General for the Criminal Division. A requestcan now be handled by any one of the five DeputyAssistant Attorneys General unless, for some reason, Ineed to direct it to a specific Deputy such as when itsrelated to a previous request handled by one of theDeputies. Otherwise, whoever is available can get it. Theonly exception to this is a roving oral or wire interceptionrequest which, by statute, must be reviewed (andapproved) by the Assistant Attorney General or higher.

DN: What happens when the application comes backfrom the Deputy Assistant Attorney General?


Whether for an original or extensionrequest, each affidavit has to establishprobable cause for three things: that apredicate crime as set forth in the statute[18 U.S.C. 2516(1)], has been or will becommitted; that the people youre namingas violators are indeed committing theseoffenses; and that the people you arenaming are using not just any phone butTHAT phone or, if its a request for a bug,THOSE premises to commit these specificoffenses.

Frederick D. Hess

FH: When the authorization is signed by the DeputyAssistant Attorney General, it is faxed back to us. Theauthorization memo, along with a letter from me to theUnited States Attorney, is faxed to the Assistant, and theAssistant then makes the actual application to the court.

JB: Does that process change depending on the type ofwiretap case; for example, narcotics, public corruption,or computer? Do different people get involved or is itbasically the same process?

FH: We send a copy of an original affidavit to the sectionof the Criminal Division that has the substantiveresponsibility for that subject area and ask them toreview it, not for the existence of probable cause, but,rather, to determine if it is a significant case. Electronicsurveillance is a very sensitive and important investiga-tive tool, and we want it used where it is most advanta-geous. The section submits their comments at the sametime were cleaning up other matters with the Assistant.When the request is ready to go to the Assistant AttorneyGeneral or Deputy Assistant Attorney General forreview, we also need to get a memorandum from theheadquarters of the investigative agency requesting thatthe application be reviewed and approved. Thissometimes delays the approval process for several hoursor a day.

The Electronic Surveillance Unit is a collegialgroup. We assign the same attorney to any extensions andspinoffs, but if that person is on vacation or travel,another attorney can usually pick up the case without aproblem, and theres not too much of a lag. Extensionsare reviewed basically the same way as originals, exceptthat we dont go to the substantive Criminal Divisionsection for comments or to the investigative agency for arequesting memo. As such, we can usually get these donemore quickly than the original request.

I see two problems with extensions. The firstproblem is that sometimes the Assistant doesnt overseethe agent when the affidavit is being prepared. Everyoneis in a hurry, thats a given. For example, in a drug caseU.S.C. 2516(1)], has been or will be committed; that thethe agent will often throw together a train ofconversations that is in code. These drug codes are notexactly sophisticated. I read them and know exactly whattheyre talking about, when theyre talking about half atruck, half a shirt, or a car with three tires, but we need adocument that a judge can read. So we request that theseconversations be characterized or briefly interpreted. Wecant expect every judge to know drug codes, or bewilling to interpret the codes if the agent, who is trainedas an expert in these matters, is not willing to do so. Theagent knows that when these people are talking aboutcassettes theyre really talking about kilograms ofcocaine. Thats what this conversation means in the

agents opinion, which is based on his experience in thecurrent investigation as well as previous investigations. Itshould be described that way. Thats all we need. Werenot talking about guilt beyond a reasonable doubt here.Were dealing with probabilities.

The second problem with an extension is timing. Iknow everybody is busy, and were busy here too. Ifextensions are submitted on the 29th day of the 30-dayinterception period, its a burden on everybody to get itapproved in time. Giving priority to a last-day extensionmeans some other AUSAs wiretap has to wait. We try tomeet the demand, but we usually need two or three dayslead time. While we dont need it on the 15th or 20thday, if the affidavit comes in on the 25th, 26th, or 27thday with the conversations characterized, recentinvestigative leads summarized, and the continuing needfor interception set out, then we can almost certainly getit signed before the interception period expires.

Whether for an original or extension request, eachaffidavit has to establish probable cause for three things:that a predicate crime, as set forth in the statute [18

people youre naming as violators are indeed committingthese offenses; and that the people you are naming areusing not just any phone but THAT phone or, if its arequest for a bug, THOSE premises to commit thespecific offenses.

We apply a standard to determine if there isprobable cause. Sometimes its difficult to meet, but ifthe two main things we look for are there, everything elseusually falls into place and our review can be donequickly.

First, you have to have independent evidence (thatis, evidence other than pen register information) withinthe past six months that illegal activity was discussed on


I know that OEOs pen register policy hasoccasionally been a big bone of contentionin the field. The policy is in place becausewe have a responsibility to the Americanpeople and to Congress to be very carefulin how we apply the statute.

Frederick D. Hess

the target phone, or inside the target premises. For We have developed ways of making pen registersexample, an informant in a drug case says, I called himwork without what some have called the dirty call. Toat this number [the target phone number] two months agodo that you have to establish a pattern of phone use thatand tried to buy drugs, or within the last few months ansupports other information in the affidavit. For example,undercover agent called the target phone to buy drugs, oryour informant tells you that a truck is driven fromthe agent or informant was standing in the room whereChicago to Texas every three weeks to pick up drugs.the phone is located when they overheard someone usingThe informant says that the subjects always stop in St.it for a drug-related conversation. There are a number ofLouis on the way back from Texas and call the targetother ways of doing it. For example, somebodys courierphone to report that theyre almost home. Physicalis arrested and he says, Yes, Ive done this before andsurveillance confirms that the subjects have stopped theirevery time I get there this is the number I call. At thetruck in St. Louis, and a pen register/trap and tracesame time, you have to have a pen register running on thereveals that a call was received over the target phonetarget phone that shows when the phone was used andfrom St. Louis at this same time. The subjects are laterwhat numbers were called, which may be able to confirmsurveilled as they park the truck at the location where thethe calls identified by the informant. In a pen registertarget phone is located. Around this time, the pen registeranalysis, you cant just list a lot of phone numbers. Yougoes wild indicating calls over the target phone tohave to identify the number called and who uses it, andpersons who have drug records and/or are suspected ofwhether theres evidence that this person is involved indistributing narcotics. Surveillance may then show thatthe criminal activity. This type of analysis also helps youthere is an increase in visits to the premises that aredetermine which persons are likely to be intercepted inconsistent with drug trafficking.criminal conversations during the interception period. Now youve established a pattern that tracks what

Second, you have to establish that at least one your informant told you. You dont have any traditional,pertinent phone call was made over the target phonedirect evidence of phone use, but showing this kind ofwithin the last 21 daysand that can be by the use of penpattern between identifiable phone calls and the resultingregister information. For example, the pen register showsdrug activity makes it go. There may be other ways ofthat the target phone has been used recently to contact adoing this as well, and our attorneys work with theknown coconspirator. Theres a problem when you cantAssistants in setting out the facts in order to establishget the independent evidence that the target phone haspatterns where possible. been used in furtherance of the crime, and all you have On the other hand, if all you have is that theare pen registers that show that alleged drug traffickersinformant says that a subject is a drug dealer, and theare calling other alleged drug traffickers, with nothing tosubject makes 100 or 200-plus calls a month to peopleshow what these conversations may be about. who have drug records, and thats it, that is not enough. I

I know that OEOs pen register policy has dont know whether that might be enough to stand up inoccasionally been a big bone of contention in the field.court, but thats not the standard we apply. We apply aThe policy is in place because we have a responsibility tohigher standard because we understand that Congressthe American people and to Congress to be very carefulenacted this statute, and Congress can take it away if itin how we apply the statute. We are engaged in perceives that we are not exercising our supervisory roleextraordinary invasions of personal privacy and we properly. It should not be easy to tap a phone, and wehave to be as certain as possible that these people areshould not accept the very lowestindeed doing what the affidavit alleges theyre doing.


It should not be easy to tap a phone, andwe should not accept the very lowestcommon denominator that a court mightaccept for probable cause. . . . We dontever want to jeopardize the existence of thewiretap laws, and the way we do this is tohave a track record of judicious andcareful application of the statute and arecord of not getting suppressed in courtbased on a lack of probable cause.

Frederick D. Hess

common denominator that a court might accept for what, are in the middle of the case. The problem isprobable cause. We need a little more than that. We dontever want to jeopardize the existence of the wiretap laws,and the way we do this is to have a track record ofjudicious and careful application of the statute and arecord of not getting suppressed in court based on a lackof probable cause.

DN: Have you succeeded in this?

FH: In every case except for one time. I remember thefirst time that I met Steve Trott, who, at the time, was theAssistant Attorney General for the Criminal Division(and who is now a court of appeals judge on the NinthCircuit). He came to the Department in the early 80sfrom the United States Attorneys office in Los Angelesand, before that, he was in the district attorneys office inLos Angeles. The first question he asked me was, Whatis your rate of reversal on probable cause grounds? Atthe time, I was able to say that it had never happened.Since then, we have been reversed once on probablecause grounds, but this record is still quite extraordinary.By the way, thats just once in many thousands of cases.

DN: What happens in emergency situations?

FH: We have two concepts for an emergency situation.One is the statutory concept, which is a 48-houremergency, in which you get the Attorney Generals oralpermission to intercept wire or oral communications for48 hours without a court order. We dont like these,because 48 hours go by so fast that theres a panic at theend to get it to court. The agents, who should be writingtheir affidavit because theyre going to have to fileeverything within 48 hours, no matter

getting around to writing it. Usually, its well past the40th hour before we receive something, and we have todo the whole review process with the clock tickingbecause the statute mandates suppression of the evidenceif the application is not made within the 48 hours.Because of this, we prefer to avoid them, so we limitthem to life-threatening emergencies, usually akidnapping or where a murder is believed to beimminent. There still has to be probable cause for thephone in all of this, and you have to show need. If all youcan show are phone calls to the house of the kidnappedvictims family, then you dont have a need for the tapbecause youre listening to these calls with the familyspermission, and you can identify the calling phone(through a trap and trace). Instead, you have to be able toshow, usually through a pen register, that after the firstcall was made to the family over the target phone, thissame phone was used to call somewhere elsemaybe toan accomplice. These later calls are the ones that have toexist in order to justify the wiretap.

We cant worry too much about establishingpatterns or a strict application of the pen register policywhen a life is in dangerthats a whole differentatmosphere. Well do it, but those situations createenormous problems because agents and Assistants arenot disciplined to start writing right away. Instead of thisavenue to handle emergencies, we prefer a secondcoursethat someone writes a bare-bones affidavit asrapidly as possible, and then we move very quickly andexpedite the process as much as possible. When we getan affidavit that is in a shape that the Deputy AssistantAttorney General can read it (because we dont have timeto write an action memo), we send it forward with theauthorizing memothis is assuming that the facts arethere. Obviously, this is done only rarely, and not wheretheres just going to be a couple-pound load of cocainecoming in tomorrow, because a load probably came inlast week and one is likely to come in again next week.Using just the affidavit and authorizing memo wont flyfor that kind of thing. If something huge happens, like aperson is in danger of being killed and we believe phonecalls are going to be made to hit men, were going to beup on that phone as soon as possible. Still, as you cansee, it makes sense to do most emergencies as anexpedited review with an affidavit wherever possible,rather than as a statutory, 48-hour emergency.

DN: What do you do with this bare-bones affidavit whenyou receive it? Where does it go when it reaches you?How is this procedure different?

FH: Its got to meet all of the statutory requirements. Thedifference is that we call the Terrorism and ViolentCrime Section (or whatever section supervises the


underlying offenses) and get a 1-2-3 okay. We tell peoplenot fall into that category. What Ive discovered is thatin the field to notify FBI headquarters to get them to signthe agencies often think its easier to get an emergencyoff on this because, until they do, its not going to wiretap than it is to do the paperwork up front. Theyhappen. We take the affidavit, call one of the five Deputythink an emergency wiretap requires no paperwork fromAssistant Attorneys General, and explain that we cannotthe agents. But a 48-hour emergency means morewrite an action memorandum and that we will fax thempaperwork and in a much shorter time frame.the affidavit as soon as we get it. We review it herequickly, advise the Assistant what changes or additionsare needed, and then we fax or hand carry it to MainJustice.

DN: Does this affidavit ever see its way into court?

FH: Yes; from the courts point of view it is just like anyAssistant has read this and has tailored the affidavit toother affidavit. The point is that there is anaffidavitthats the difference between the 48-houremergency and this expedited one. With the 48-houremergency, you have nothing, no paper at all. You have aDN: Do you have any final message for Assistants?conversation between the Director of the FBI and theAttorney General, after everyone underneath says okay,lets do this, and then within 48 hours you need anapplication, order, and affidavit for us to review, and allthree have to be presented to the court within 48 hoursfrom the time the Attorney General orally authorizes it.Forty-eight hours go by fast, and its invariably aweekend. Whereas, if you write an affidavit that you cangive to a judge prior to the tap, youre authorized for upto 30 days. The affidavit in a 48-hour emergency has tobe based solely on what the Attorney General knew whenshe approved the emergency tap. When you go to courtafter the emergency authorization, you can only tell thejudge as much as the Attorney General knew at the timeshe approved it, because the court has to validate theemergency interception. Now, if youve had somepertinent calls over the tapped phone in between, and youwant to keep up on the tap after 48 hours, you need aseparate extension request. The information in theextension request will be different than in the 48-houremergency affidavit. You have to be careful to keep thedocuments separate because the first area of attack lateron is going to be that the 48-hour affidavit containedsomething that the Attorney General didnt know at thetime of her okay. If you have the bare-bones affidavitpresented to court to start with, you can intercept for upto 30 days and wont have to worry about the 48-hourpaperwork and an immediate extension request.

MK : We lost one where a judge decided it wasnt a trueemergency. We went up on a wiretap pursuant to theemergency provision and, when we applied for thefollow-up order, the judge ruled that it wasnt an emer-gency because we had time to file an affidavit in the firstplace. Some cases are true emergencies. A child iskidnapped and youve got to move fast. Most cases do

FH: I want to make a point also about the ElectronicSurveillance Manual. We published the manualoriginally in 1991 and sent it to every office. It containsdraft forms for every conceivable pleading in a wiretap,pen register, you name it. It has been updated, and willsoon be available on disk and on USABook. If an

meet the requirements in the manual, then it can gothrough our office very quickly.

FH: Ive been through this for 15 years and every sooften a great case comes along that youll look back onfor years. Im thinking of the Pizza Connection case inwhich we worked with Rudy Giuliani when he wasUnited States Attorney in the Southern District of NewYork. Louis Freeh was the AUSA in charge of the case.Several of these cases have been summarized elsewherein this publication. (See pages 10 and 11.) These casesare memorable and you know that the wiretap was thething that made the case. The wiretap is a greatinvestigative tool and it can make your case for you.Cherish it, preserve it, and protect it. Dont ask us topush it beyond where it is supposed to go. Live with ourpen register policy, because it has made the judges,Congress, and others happy. We will work with you to tryto make it work in your case. This investigative tool istoo important to play games with.

DN: How do you think the AUSAs are doing onwiretaps?

FH: Theyre doing great!


The information concerning provisions or applications of Title III in the articles by Assistant United States Attorneys in thisissue of the United States Attorneys Bulletin are the opinion of the authors and not necessarily those of the Office ofEnforcement Operations, Criminal Division, or the Department.

The Office of Enforcement OperationsIts Role in the Area of Electronic SurveillancePrepared by the Staff of the Electronic Surveillance UnitOffice of Enforcement OperationsCriminal Division

he Office of Enforcement Operations (OEO) is theanswering Title III-related questions from the field. OnceTCriminal Division office responsible for overseeingrecommended by ESU, requests for Title III approval gothe use of the most sophisticated investigative toolsto either Associate Director Carla H. Raney, Senior

at the Federal Governments disposal in furtherance ofAssociate Director Maureen H. Killion, or Directordomestic criminal investigations, including the Frederick D. Hess for final review and recommendationinterception of wire, oral, and electronic communicationsby OEO. (See accompanying interview and sidebar.)under Title III of the Omnibus Crime Control and SafeThen the requests are sent to the Assistant AttorneyStreets Act of 1968, as amended. As provided for in 18Generals (AAG) office for review and possible approvalU.S.C. 2516 and Department of Justice (DOJ) by a Criminal Division Deputy Assistant Attorneyregulations, the Departments approval must be obtainedGeneral, or by the AAG or Acting AAG. The applicationbefore applying to a Federal court for an orderauthorizing such surveillance. OEO also has a*

supervisory role in the use of court-authorized videosurveillance, as well as the consensual monitoring ofnon-telephonic communications in certain sensitivecircumstances.

In FY 1996, OEOs Electronic Surveillance Unit(ESU) reviewed over 1,300 electronic surveillancerequestsa figure almost 30 percent greater than that forFY 1995. The ESUs efforts in supervising the use ofelectronic surveillance also include providing legaladvice to investigators and Assistant United StatesAttorneys (AUSAs), assisting with trial/appellate briefsand motions when requested, providing training, andassisting and commenting on all electronic surveillancematters that come through the Division. Julie P. Wuslichis the head of ESU and Janet D. Webb is the deputychief. Nancy Brinkac, Gina DiGiuseppe, Robert Gerardi,Joan Holmes, Paul Joseph, Andrew Simonson, NatalieThornton, and Steven Wasserman support the Unit andare directly involved in the review of wiretap requests.OEO Senior Counsel Stephen Harwood assists ESU in

must be reviewed and approved by the AAG or ActingAAG if a roving interception is involved. (An in-depthdescription of this approval process appears elsewhere inthis issue.)

OEOs ability to keep pace with the demands of theUnited States Attorneys offices (USAOs) and theFederal investigative agencies in their use of electronicsurveillance is constantly being challenged by shiftinginvestigative priorities. An increase in funding for theDrug Enforcement Administration (DEA) or theOrganized Crime Drug Enforcement Task Forces, or apolicy decision to increase the FBIs involvement in druginvestigations, clearly results in more work for OEOsESU. This is because Federal drug investiga-tionswhich target major drug importation anddistribution organizationsdraw upon wiretaps, becauseof investigative necessity, as one of their primaryinvestigatory tools. The use of electronic surveillance islikely to increase substantially with the expected creationof dedicated wiretap units in a number of DEA fieldoffices. From ESUs experience, it is clear that evenrelatively minor changes in electronic surveillance lawscan increase substantially the workload of that unit.

AUSAs should be aware that the growing numberof Title III requests received in OEO has forced theESUs reviewers to prioritize their caseload to ensureexpeditious review of the most time-sensitive Title IIIpleadings. As such, it is imperative that pleadings besubmitted to OEO as soon as practicable. This isespecially true in the case of requests for extensions of

While 18 U.S.C. 2516(3) allows United States Attorneys to*

apply for a court order authorizing the interception of electroniccommunications without the need for prior Criminal Divisionapproval, the United States Attorneys Manual, at 9-7.000, etseq., requires prior Division approval for all applications tointercept electronic communications except those involving theinterception of alpha-numeric pager communications.


interceptions of wire, oral, and/or electronic communi-interception be authorized or rejected. The official maycations. then accept or reject this recommendation.

Criminal Divisions Review ofTitle III Electronic SurveillanceRequests

Pursuant to 18 U.S.C. 2510, et seq., the AttorneyGeneral has delegated her authority to authorizeapplications for Title III electronic surveillance to theAssistant Attorney General, Acting Assistant AttorneyGeneral, Deputy Assistant Attorneys General, and ActingDeputy Assistant Attorneys General of the CriminalDivision. The Division has established the followingauthorization process for applications for Title III courtorders authorizing the interception of wire and/or oralcommunications:

1. A USAO and/or Federal criminal investigativeagency submits an affidavit and relatedpleadings to the ESU.

2. The ESU refers the pleadings to the substantiveoffice or section of the Criminal Division for adetermination of the significance of theinvestigation. Concurrently, the investigativeagencys headquarters personnel review theaffidavit to determine whether the pleadings arelegally sufficient and to make certain that theobjectives of the investigation are within thegeneral mandates and budgetary constraints ofthe agency.

3. Also, concurrent to 2, an ESU attorney reviewsthe pleadings to ensure legal sufficiency,significance, and compliance with theprocedural requirements of Title III and with The following are just a sample of the major lawDepartment policies. enforcement investigations where electronic surveillance

4. Then the ESU prepares an authorization memowhether obtaining the conviction of drug traffickers andfor the signature of a Criminal Division official the forfeiture of millions of dollars in drug assets orwho is designated by the Attorney General to preventing the destruction of Government property andauthorize requests. In a separate memo, OEOsthe loss of innocent lives. Generally, what distinguishesDirector recommends to the reviewing officialthese investigations is the extremely secretive andthat the request for sophisticated nature of the targeted individuals, whose

5. If approval is granted, a copy of the authoriza-tion memo, the Attorney Generals Order ofSpecial Designation, and a letter from theDirector of OEO are sent to the USAO advisingthe United States Attorney of the approval. Thefirst two documents are to be filed with thecourt as part of the court authorization process.

6. The USAO then files the respective pleadingsand authorization memorandum with the districtcourt and, if the judge agrees with the request tointercept, he/she will sign the court orderauthorizing the interception.

Although not statutorily mandated by Title III or theElectronic Communications Privacy Act of 1986(ECPA), a similar review procedure is in place in OEOto handle USAO requests for court orders authorizing theinterception of electronic communications (e.g.,computers and facsimile machines), except those beingplaced to digital display paging devices. (For digitaldisplay paging devices, authorization by a supervisoryattorney in the USAO is required.) ECPA requirementsthat must be complied with prior to the interception ofpager communications, including the need for a courtorder, are believed sufficient to address applicableprivacy concerns without the need for prior CriminalDivision authorization.

Government Use of ElectronicSurveillanceExtremely Important Cases

was critical to a successful resolution of the matter,

knowledge of law enforcement techniques and intensefear of being detected and arrested leads them to behighly cautious in dealing with persons they dont know.These characteristics make

traditional investigative methods less likely to be and/or a large number of defendants. In each of thesesuccessful. These cases also involve complex offensesTitle III cases, wiretaps and bugs were essential to the


arrests and prosecutions of the defendants, and theseizure of millions of dollars in narcotics proceeds orother forfeitable assets.

The Commission CaseOrganized CrimeConvictions in Southern District of New York

In September 1983, the FBI began the first in a based operatives for the Cali, Colombia, cocaine cartel,series of wiretaps and bugs targeting the Commis- was largely dependent upon approximately 18 months ofsionthe bosses of organized crimes five leading continuous court-authorized wiretaps of cellularfamilies. The Title III electronic surveillance in this telephones used by members of various New York cellsinvestigation, employed continuously for 18 months, wasreporting to major drug lords in Cali. During theextremely productive, providing the FBI with details ofinvestigation, the DEA was able to identify and tap overorganized-crime-related activities that were well beyond100 cellular phones. The conversations led directly tothe knowledge of any FBI informant. The information millions of dollars in cocaine and cash, which wereobtained from the Title III surveillance was used to putseized by the DEA at various points in the investigation.together an airtight case against the defendants. At the conclusion of the taps in December 1991, the

Based in large part on the electronic surveillanceDEA arrested more than 100 individuals and seizedinformation, the defendants were charged in the Southern$14.6 million in cash. Records seized during the arrestsDistrict of New York with racketeering activities, indicated that this group had been shipping $50 million aincluding murders, loansharking, labor pay-offs, and month in cocaine profits from New York to Cali.extortion in the concrete industry. The prosecution The wiretaps were of critical importance in thispresented more than 100 taped conversations at trial toinvestigation because the sophisticated and compart-bolster the informant information, other witnesses mentalized method of operation of the organization madetestimony, and surveillance photographs. Eight the limited informant information of little importance. Nodefendants were convicted, including the heads of theone informant was in a position to provide more than theGenovese, Lucchese, and Colombo organized-crime barest details on any area of the operation. Without thefamilies. wiretaps, the DEA would not have successfully tied the

Paul Castellano/John GottiOrganized CrimeConvictions in Eastern District of New York

In the early 1980s, the FBI commenced a Title IIIinvestigation of Paul Castellano, the reputed boss of theGambino organized crime family. Agents installed bugs Between January 1987 and July 1988, the Unitedin Castellanos residence, and the intercepted States Attorney for the Eastern District of Virginia andconversations revealed that Castellanos organizationthe FBI conducted a series of court-authorized inter-was involved in numerous racketeering activities, ceptions of wire and oral communications of severalincluding international car theft and conspiracy to defense procurement consultants in the District ofmurder. In February 1986, six of Castellanos associatesColumbia, the Eastern District of Virginia, the Middlewere convicted of running the car theft ring. District of Florida, and the Eastern District of New York.

In December 1985, Castellano was murdered by The investigation, known as Operation Illwind,associates of John Gotti in a power struggle for control offocused on allegations of bribery and fraud beingthe Gambino organization. To obtain evidence of the committed by Department of Defense employees,murder, FBI agents installed bugs and wiretaps in a contractors, and consultants in the award of massivesocial club frequented by Gotti. Based on interceptedprocurement contracts for the military.conversations, Gotti was convicted in April 1992 of After 18 months of court-approved Title IIIracketeering and conspiring to murder Castellano. Gottisinterceptions, including approximately 30 spinoffefforts to challenge his Federal conviction were rebuffedwiretaps, the FBI executed approximately 45 searchby the United States Supreme Court, and his convictionwarrants and seized massive amounts of personal andwas upheld. He is currently serving a sentence of corporate records. The investigation resulted inmultiple terms of life imprisonment without the 64 convictions and $622 million in fines, including apossibility of parole. $190 million fine against the Unisys Corporation.

Herrera-Buitraga OrganizationCali CartelInvestigation in Eastern District of New York

One of the most successful uses of wiretaps in anarcotics investigation occurred in connection with theDEAs investigation of the Herrera-Buitraga organiza-tion. The investigation, which targeted New York City-

operation to the Cali Cartel, or identified the participantsand their method of operation.

Operation IllwindDefense Procurement FraudConvictions in Eastern District of Virginia


Walter MoodyMurder of a Federal Judge Zorro IICali Cartels Operations in theConviction in the Northern District of Georgia United States

In December 1989, Robert Vance, a judge on theUnited States Court of Appeals for the Eleventh Circuit,was killed by a bomb that was mailed to his residence. InAn extremely successful use of wiretaps in a nar-April 1990, Federal agents targeted Walter Moody as acotics investigation, code-named Zorro II, occurred insuspect in the bombing and, pursuant to a Title III courtDEAs investigation of the Cali Cartels operations in theorder, placed bugs in Moodys residence. Agents learnedUnited States. This investigation was concluded in thethat Moody talked to himself about the bombing. In Junespring of 1996 and used over 90 court-authorized1990, Moody was arrested on an unrelated charge, andwiretaps (including extensions) that were conducted overagents placed a bug in his prison cell. In June 1991, nine months in ten judicial districts. Based onWalter Moody was convicted of first degree murder forinformation produced by the taps, over 130 persons werekilling Judge Vance. Prosecutors used evidence obtainedarrested and 5,598 kilograms of cocaine andfrom the bug in the prison cell to prove that Moody hadapproximately $9 million in cash from drug proceedscreated and sent the bomb. were seized. (Commendations issued to AUSAs in

Chinese Organized CrimeGang Kidnapping the July 1997 issue of the USAB.)Southern District of New York

On March 18, 1994, four Chinese nationals werekidnapped from a location in New York City by six men.This case, like several others recently, concerned illegalalien smuggling. Over the following day and a half, thekidnappers made 15 to 20 telephone calls to an associateof the victims, demanding money in exchange for theirsafe release. The kidnappers provided the associate withthe number of a cellular phone and instructed him tocontact them on that telephone. During this period oftime, a pen register installed on the cellular phonerevealed numerous telephone calls from the cellularphone to other phones.

On March 19, 1994, the Attorney Generalauthorized the emergency interception of communi-cations over the cellular telephone used by thekidnappers. The wiretap was credited with leading to asuccessful resolution of the situation: the four victimswere recovered, relatively unharmed, and 12 people werearrested.

RUKBOMDomestic TerrorismNorthern District of Illinois

In RUKBOM, a domestic terrorism case, theEl Rukn street gang in Chicago, attempting to act as asurrogate for the Libyan Government, proposed to shootdown a commercial airliner with a stolen military rocket,in return for financial remuneration. Electronicsurveillance enabled law enforcement agents to preventthis attack, thereby saving over 100 lives (and possiblymore) by averting a domestic disaster similar to theterrorist bombing of Pan Am Flight 103 over Scotland.

Central District of California and nine otherUnited States Attorneys Offices

connection with this matter were previously detailed in

Use of Electronic SurveillanceQuestions and Answers

Q: Why does OEO have a 21-day current probablecause requirement in wire, oral, and electronicinterceptions?

A: Intertwined with the probable cause requirement ofthe Fourth Amendment and the provisions of Title III isthe requirement that the information of criminal conductand facility/premises usageeven if clearlyestablishednot be stale; i.e., is not just historical innature but is also such that a judge could reasonablyconclude that the information is still current and thecriminal activity is ongoing. Over the years, OEO hasestablished a 21-day rule to show that the probablecause is still fresh. This means that when the AssistantAttorney Generals office receives the request toauthorize a Title III application, the latest use of thetargeted facility or premises in connection with the crimemust be within 21 days of that review. This time frameallows a few days to transpire before the application ispresented to the district judge, thus ensuring that theinformation establishing probable cause will not becomestale in the intervening period. While the 21-day rule mayseem arbitrary, it has served the Government well. Thevarious agency headquarters understand the basis for therule and do their best to ensure that the affidavits meetthis requirement before they are sent to OEO for review.


Q: What is the Criminal Divisions pen register policyabove, will normally not be sufficient to establishfor wire interceptions? probable cause for a wiretap.

A: The Criminal Divisions pen register policy Q: Do the requirements differ regarding the use of(instigated and supported by Acting Assistant AttorneyTitle III to intercept electronic and wire communicationsGeneral John C. Keeney) is that pen register informationgenerated via computer or PC? Who in OEO handlesalone is not sufficient to establish probable cause for awiretap. Pen register records only show that one phone**

is being used to call another phone. They do not showthat the phones are being used to discuss criminalmatters. Therefore, there must be a showing (indepen-dent of pen register records) from which a judge mayconclude that the phone to be tapped has been used infurtherance of specified criminal activities within the six-month period preceding the application. Obviously, theeasiest way to do this is for an informant to have aconsensually recorded conversation about criminalactivities with a subject using the target phone. Thereare, however, other ways to show that the phone is beingused to further criminal activities of the subjects. Forexample, an informant may see or overhear a subjectusing the target phone in connection with the criminalactivities.

Finally, a detailed analysis of pen register activityshowing a pattern of calls from the target phone at oraround the time of known criminal activity may often besufficient to establish probable cause for a wiretap. Forexample, probable cause will be established if, after eachpayment of a bribe to a representative of a public official,the pen register analysis shows that there is a call to thephone of the targeted official. Alternatively, if penregister analysis shows consistently that, before thedelivery of a drug shipment, there were calls to thesource of drugs in Mexico or Colombia or to contacts ineach of the places where the drugs will be transiting,followed by a flurry of calls to known drug customerswhen the drug shipment is delivered, such a pattern isusually sufficient to establish probable case that thephone is being used in connection with the specifiedcriminal activity. Each of those instances, coupled withpen register analysis showing calls from the target phoneto known criminal associates within the preceding 21days, should be sufficient to obtain Criminal Divisionauthorization to apply for a wiretap. It is important tostress that raw pen register data, showing calls tosuspected criminal associates, without an extensiveanalysis to establish patterns of activity such as described

these types of Title IIIs?

A: If a communication is neither wire (whichrequires an aural, or voice transfer) or oral, then it iselectronic, and there is no distinction in Title III as to theinterception of different facilities that are used inconnection with sending and receiving electronic com-munications (e.g., computers, fax machines). If investi-gators wish to intercept a computer-to-computertransmission, then this is a purely electronic communi-cation, and is intercepted as provided for in 18 U.S.C. 2516(3) and 2518. If the communication has been sentand becomes a stored electronic communication, it maybe retrieved as provided for in 18 U.S.C. 2703(whether it is stored with a service provider or in aremote computing service). ESU attorneys who reviewTitle III requests can provide assistance with thesecomputer transmissions.

In situations where a computer has been seized andinvestigators wish to gain access to its contents, thisplanned seizure of information is not a Title IIIinterception. Questions in this area should be directed tothe Computer Crimes and Intellectual Property Section ofthe Criminal Division. Note, however, that if thecomputer user can be considered a publisher, then anyattempt to retrieve information stored in the computermay implicate provisions of the Privacy Protection Act of1980 (42 U.S.C. 2000aa), and an approval processrelating to conducting such a search would be handled byOEOs Policy and Statutory Enforcement Unit.

Q: Does OEO have a role in coordinating multi-district investigations that use Title IIIs?

A: Yes. Generally, in a multi-jurisdictional investi-gation, OEO assigns one attorney to review all theTitle III applications. This attorney ensures that theapplications submitted by the various districts areconsistent with each other as to probable cause, theidentification of subjects, and investigative objectives,and that each application correctly refers to the otherapplications filed, and establishes the investigative needfor each wiretap, addressing specifically how eachwiretap interrelates with the others. Moreover, the OEOattorney may help identify potential conflicts in theinvestigation that might be caused by the plannedtakedown of a case in one jurisdiction while the

OEO Director Frederick Hess provides additional**

commentary regarding OEOs pen register policy in hisinterview.


investigation continues elsewhere. Finally, the OEO expectation of privacy exists for those persons who sentattorney attends investigation strategy sessions wheresuch strategies are discussed and plans are formulated toinitiate additional wiretap cases.

Q: Under what circumstances does the Governmentneed to obtain a Title III order to intercept electroniccommunications to a pager? When will a search warrantsuffice? Are there any exceptions?

A: Three types of pagers are addressed specifically inTitle III: (1) tone-only pagers, (2) digital display pagers,and (3) tone-and-voice pagers. Tone-only pagers simplybeep when a call is received, digital display pagersexhibit messages in letters and numbers on a smallscreen, and tone-and-voice pagers receive the spokenmessage sent by the caller. Only digital display and tone-and-voice pagers require Title III authorization beforeinterception. Because digital display pagers receiveelectronic communications for which an expectation ofprivacy exists, the Government must obtain an order tointercept electronic communications pursuant to 18U.S.C. 2516(3) and 2518, when it seeks to use aclone of the targeted pager to intercept the electroniccommunications being transmitted to the targeted pager.Interception orders for digital display pagers may besought for any Federal felony. On the other hand, tone-and-voice pagers require an authorization to interceptwire communications and, thus, the application mustspecify one of the Federal offenses listed in 18 U.S.C. 2516(1), and must be authorized by a specifiedDepartment of Justice official.

While pager applications are not reviewed byOEO, and authorization by Criminal Division officials isnot required, they must be authorized by a supervisoryattorney in the USAO. It is important to remember thatthe affidavit, application, and order must meet allrequirements of 18 U.S.C. 2518, including probablecause, statements of prior application, and duration.Progress reports must be filed if requested by the court,and extensions also must be approved by a supervisoryattorney in the USAO. Additionally, pager Title IIIs maybe signed only by district court judges, not bymagistrates [18 U.S.C. 2516(1) and 2516(3)].

It is important to distinguish between using a clonepager to intercept electronic communications as they aretransmitted, for which a Title III order is required, andobtaining stored paged messages directly from a pagerafter it has been lawfully seized incident to an arrest.When agents arrest an individual and lawfully seize theindividuals pager, the agents are in lawful possession ofthe pager, but may they retrieve the stored messageswithout obtaining a search warrant? While no

messages to the seized pager, [see United States v.Meriwether, 917 F.2d 955 (6th Cir. 1990) (wheredefendant could not claim an expectation of privacy inthe phone number he input into a pager that was seizedby agents)], an expectation of privacy does exist for theperson in possession of the pager at the time of theseizure. This expectation may be overcome, however, byone of the exceptions to the warrant requirement,especially where agents are aware that pager messagescould be lost if not retrieved, and thus exigentcircumstances may exist. [See also United States v.Chan, 830 F.Supp. 531 (N.D. Cal. 1993) (pager seizedincident to arrest); United States v. Lynch, 908 F.Supp.284 (D. V.I. 1995) (same); United States v. Ortiz, 84F.3d 977 (7th Cir. 1996) (same); United States v. Reyes,922 F.Supp. 818 (S.D.N.Y. 1996).] These courts upheldthe warrantless retrieval of numbers from the memoriesof pagers seized incident to a lawful arrest and duringconsensual searches of cars.

Q: Why do we need a Title III application to intercepta pager? Isnt the privacy right in wire communicationsentirely different in nature than electroniccommunications?

A: While telephone calls and communications over adigital display pager are different in nature, they are stillcommunications protected both by Title III and theFourth Amendment. While some argue that pagerintercepts provide similar information to that obtainedfrom pen registers, this is not totally true. What a penregister records and which the Supreme Court has heldis not protected by the Fourth Amendmentare thenumbers dialed from a telephone in order to reachanother party and carry on a conversation. The numbersdialed were not the intended communication. In contrast,the numbers a pager intercept records are the numbersthe caller punches into his or her phone after makingcontact with the pager company. These numbersoftenthe phone number to be called to return the incomingcall, or codes like 911 for emergencies or types ofaccess numbersare, in fact, the intendedcommunication. This is a distinction that makes all thedifference, both statutorily and constitutionally.

Q: What are digital analyzers and cell site simulators,and is a court order required to use them?

A: It is now possible for agents to capture electron-ically the unknown electronic serial number (ESN) ortelephone number of a cellular telephone through the useof a device known as a digital analyzer. It can be


programmed to identify the telephone number assigned toU.S.C. 3121-3127 (pen register/ trap and tracethe subject cellular telephone and telephone numbersstatutes), the Departments policy is that, to the extentdialed from this phone, as well as its ESN; i.e., a numberCSSs and digital analyzers are used as pen registers orassigned by the cellular telephone manufacturer andtrap and trace devices, they should only be used pursuantprogrammed into the telephone. Although this device isto a court order issued pursuant to these statutes.also capable of intercepting both the numbers dialed Specifically, Title IIIs provisions (18 U.S.C.from the cellular phones and the voice (wire) 2510-2522) would not apply to the use of a digitalcommunications to and from cellular telephones, the analyzer or a CSS when they are used to capture calldigital analyzer is programmed so it will not interceptprocessing information (MIN, ESN, cell site location,cellular conversations or dialed numbers when it is usedstatus of call, etc.) because they do not intercept thefor the limited purpose of seizing ESNs and/or the contents of any wire, oral, or electronic communicationcellular telephones number. as the term contents is defined by Title III. Currently,

Similarly, a cell site simulator (CSS) can provideagents with a cellular telephones ESN and mobileidentification number (MIN, which contains thecellular telephone number and other information relatedto the operation of the phone). The CSS simulates someof the activities of a cellular service providers cell sitetransmitter, albeit in a much smaller area, and allowsagents to query cellular phones for their ESNs and MINsthrough autonomous registration, an activity a cell sitetransmitter normally conducts to identify cellular phonesoperating within its cell or area. Like a real cell sitetransmitter, the CSS can determine ESNs and MINs ofcellular phones that are powered up or turned on. (Thephone need not be in a use mode; the information canbe obtained unbeknownst to the cellular phone user.)

In addition to capturing ESNs and MINs of cellulartelephones, digital analyzers/CSSs can capture the cellsite codes identifying the cell location and geographicalsub-sector from which the cellular telephone istransmitting; the calls incoming or outgoing status; thetelephone numbers dialed (pen register order required);and the date, time, and duration of the call. This cell sitedata is transmitted continuously from a cellular telephone(not by the user) as a necessary part of call direction andprocessing. The service provider uses this information toconnect with the account in order to direct calls, andconstantly reports to the customers telephone a readoutregarding the signal power, status, and mode of thetelephone.

If a Government agent, without involving thecellular telephone service provider, uses a digitalanalyzer or CSS either to obtain from a cellular phone itsMIN and ESN, it does not appear that there areconstitutional or statutory constraints on the warrantlessuse of such a device by the Government. See In TheMatter of the Application of the United States ofAmerica for an Order Authorizing the Use of a CellularTelephone Digital Analyzer, 885 F. Supp. 197 (C.D.Cal. 1995), and Smith v. Maryland, 442 U.S. 735 (1979)(the Fourth Amendment provides no privacy protectionfor numbers dialed on a telephone). With regard to 18

Section 2510(8) states, contents, when used withrespect to any wire, oral, or electronic communication,includes any information concerning the substance,purport, or meaning of that information. ESNs/MINsand other automatic call processing information that aretechnologically necessary for the service provider toprocess cellular calls are not the types of transmissionsCongress included within Section 2510(8)s definition ofcontents when it was amended in 1986. [See S. Rep.No. 541, 99th Cong., 2d Sess. 13 (1986).]

In addition, there is no electronic communication[as defined by 18 U.S.C. 2510(12)] unless the MIN orESN is transmitted in whole or in part by a wire, radio,electromagnetic, photo electronic, or photo opticalsystem that affects interstate or foreign commerce. Atransmission normally contemplates a sender and areceiver. The ECPA legislative history regarding thedefinition of wire communication warns against animproper mechanical reading of the phrase in whole orin part. . . by the aid of wire. . . , and states that thephrase is intended to refer to wire that carries thecommunication to a significant extent from the point oforigin to the point of reception, even in the samebuilding. It does not refer to wire that is found inside theterminal equipment at either end of the communication.[S. Rep. 99-541, 12.] Thus, it does not appear that MINsand ESNs forced from the cellular telephone by theCSS or obtained by a digital analyzer are electroniccommunications within the contemplation of 18 U.S.C. 2510(12).

If cell site information is treated as a subscriberrecord or other information rather than a contempo-raneous electronic communication covered by Title III,then 18 U.S.C. 2703 (regarding stored electroniccommunications) might apply. It should be noted,however, that Section 2703 controls disclosures byservice providers to Government entities and does notprohibit the Government from obtaining such informationon its own without involving the service provider.Additionally, because CSSs and digital analyzers do notaccess communications in electronic storage in a facility


with electronic communication service, Section 2703does not apply.

Q: Are cordless telephones covered by Title III?

A: Sections 2510(1), 2510(12), and 2511(4)(b) ofTitle 18, U.S.C., were amended in 1994 to include theradio portion of cordless telephone communications asprotected wire or electronic communications. Conse-quently, there is no longer an exception to the Title IIIrequirements for the radio portion of a cordless phone.Now a Title III order is required to intercept all wirecommunications over a cordless, cellular, or landlinetelephone. Illegal interception of the radio portion ofcordless telephone communications is subject to the samecriminal penalty scheme that is applied to the illegalinterception of cellular telephone communications. Thepenalty for a first offense is a fine of not more than$5,000 if the interception was not for a tortious or illegalpurpose, or for purposes of direct or indirect commercialadvantage or private commercial gain, and the wire orelectronic communication is not scrambled or encrypted.

Two practical effects of this provision are thatagents may no longer use a scanner to monitor anytelephone conversations without obtaining courtauthorization [18 U.S.C. 2510(1)], and second, theprovision applies not only to law enforcement but toprivate citizens monitoring cordless phone conversationson their scanners. Citizens may not monitor scanners andthen give that information to law enforcement. Existingcase law states clearly that only inadvertentinterceptions can be used by law enforcement. If a citizenis intentionally monitoring cordless or cellular phoneconversations, that information is not admissible and theperson could be in violation of Title III [Thompson v.Dulaney, 970 F.2d 744 (10th Cir. 1992); Bess v. Bess929 F.2d 1332 (8th Cir. 1991); and Shaver v. Shaver799 F. Supp. 576 (E.D.N.C. 1992)].

Q: What process can the Government take to seizeinformation contained in an electronic notebook?

A: Electronic notebooks are small, electronic addressbooks used to store names, numbers, and otherinformation often found in drug ledgers. When an agentseizes one of these items, a Title III order is not needed tosearch the information contained in the notebook becausethe retrieval of the data is not an intercept as defined in18 U.S.C. 2510(4). However, a search warrant may beneeded depending on the circumstances described below.

There is a protected expectation of privacy in thememory of an electronic data notebook. [United States v.David, 756 F.Supp. 1385, 1390 (D. Nev. 1991); United

States v. Chan, 830 F.Supp. 531, 534 (N.D. Cal. 1993)]An electronic address book is indistinguishable fromany other closed container and is entitled to the sameFourth Amendment protection. [David, 756 F.Supp. at1390. See also United States v. Blas, 1990 WL 265179(E.D. Wis. 1990)]

The expectation of privacy exists regardless ofwhether the notebook has password protection or not. Apassword to an electronic address book is analogous to akey to a locked container. [David, 756 F.Supp. at 1391]

Because closed containers are accorded FourthAmendment protection, an exception must exist to justifya warrantless search of an electronic data notebook. Forexample, as with other closed containers, police mayexamine the contents of containers found on or near anarrestee during a search without a search warrant. [NewYork v. Belton, 453 U.S. 454, 461 (1981)]

In David, an agent seized the defendants addressbook based on the agents belief that the defendant wasdeleting information from it. [David, 756 F.Supp at1392] Once the address book was seized, however, theexigency that justified the seizure evaporated, and thewarrantless search of the contents of the book wasunjustified. [Id] Fear that the devices batteries would dieand, therefore, the information would be lost, was notsufficient to justify a search. [Id. at 1392 n.1.]

As noted in David, the data contained in electronicdata notebooks can be deleted easily and, therefore,exigencies may arise that justify seizure of the devices toprevent loss of evidence. [Id. at 1389] However, thedifference between possessory interests and privacyinterests may justify a warrantless seizure of a containerfor the time necessary to secure a warrant, where awarrantless search of the contents would not bepermissible. [Id. at 1392]

Q: What is required to seize stored wirecommunications in a voice mail system?

A: There has been much debate about whether a TitleIII order or a search warrant is needed to seize wirecommunications stored in a voice mail system. Theconfusion exists because the statutory definition of wirecommunicationsthe body of case law defining themeaning of an interceptionand the legislative historydo not give a succinct and cohesive answer. It isDepartment policy that if the Government is seeking toseize wire communications stored in a voice mail system,a search warrant is required. If the Government seeks tocapture wire communications contemporaneously as theyare left on a voice mail system, then a Title III order isrequired. Recently, in United States v. Moriarty, ___F.Supp. ___ (D. Mass. 1997) (1997 WL 249206, May 7,


1997), the court accepted the magistrates report andtapping counts and voice mail counts were duplicitous.recommendations concerning a motion to dismiss a countThe Government argued that Section 2511(a)(1) requiresof an indictment. Specifically, the Government indictedthe defendant to actually acquire the content of athe defendant on charges of illegal wiretapping, under 18communication, and Section 2701 only requires access toU.S.C. 2511(1)(a), and unlawful access to voice mail,it which, by implication, does not necessitate thein violation of 18 U.S.C. 2701. Pursuant to the Doubleacquisition of the communication. In other words, whenJeopardy Clause of the Fifth Amendment, the defendantthe defendant listened to the voice mail messages, he didsought dismissal of the wiretapping count, arguing thatmore than just access them, he intercepted them. Thethe wire courts analysis, too, focused on the differences between

the terms intercept in Section 2511(a)(1) and accessin Section 2701. The court, however, determined that theterm intercept requires the contemporaneousacquisition of the information, whereas access couldapply to both contemporaneous and stored trans-missions. Under the facts of this case, the court foundthat the defendants listening to the voice mail messagesdid not make it an intercept within the meaning of 18U.S.C. 2511(a)(1) because [o]nly the interception ofvoice mail while in transmission, like a wiretap on atelephone in use, can amount to a violation of Section2511 [of Title 18, United States Code]. Accordingly, thewiretap count was dismissed.

Based on this court decision, it appears that only asearch warrant would be needed to obtain stored wirecommunications on a voice mail system, becauseaccessing the communications after transmission wouldnot be a contemporaneous interception for which a TitleIII order would be needed.

Conclusion

On the opposite page is a chart that shows for eachtype of communication, the applicable section in theU.S.C., who approves the order, and other steps to takewhen court orders are necessary to obtain access to wire,oral, and electronic communications.

For further information, please contact ElectronicSurveillance Unit attorneys during work hours at(202) 514-6809 or, for after-hour emergencies, throughthe Justice Command Center at (202) 514-5000.

This table does not address prison monitoring, consensual monitoring, or the use of video surveillance. Questions regarding the use***

of these investigative techniques should be referred to the Office of Enforcement Operations Electronic Surveillance Unit.


Mechanisms by Which the Government Can Obtain Wire, Oral, and Electronic Communications and Related Information***

Type of Communication Court Order Search Warrant grand jury, trial)Subpoena (Admin.,

Wire, electronic, or oral Pursuant to 18 U.S.C. N/A N/Acommunications (e.g., 2510, et seq. (Title III);telephone calls, pager must be signed by a Federalmessages, faxes, Emails, district court judgecomputer transmissions, andface-to-face communications)

Stored electronic N/A As provided for in 18 N/Acommunications (e.g., Emails, U.S.C. 2703(a); nopager messages, and voice prior notice to customermails in storage 180 days or or subscriberless); see 18 U.S.C. 2703(a)

Stored electronic Drafted pursuant to 18 As provided for in 18 As provided for incommunications in electronicU.S.C. 2703(d); prior U.S.C. 2703(a), (b); no18 U.S.C. 2703(a),storage more than 180 days;notice to customer or prior notice (b); prior notice tosee 18 U.S.C. 2703(a) subscriber unless notice is customer or

delayed pursuant to 2705; subscriber unlessmagistrate may sign notice is delayed

under 2705

Material held or maintained onDrafted pursuant to 18 As provided for in 18 As provided for ina remote computing serviceU.S.C. 2703(d); prior U.S.C. 2703(b); no 18 U.S.C. 2703(b);(e.g., Email, business records,notice to customer or prior notice prior notice tocredit records, payroll subscriber unless notice is customer orrecords); see 18 U.S.C. delayed under 2705; subscriber unless2703(b) magistrate may sign notice is delayed

under 2705

Continued


Type of Communication Court Order Search Warrant grand jury, trial)Subpoena (Admin.,

To install or use a pen registerPursuant to 18 U.S.C. N/A N/Aor a trap and trace device 3121, et seq.; magistrate

may sign; order sealed untilotherwise ordered by court

Government use of a digitalN/A N/A N/Aanalyzer, Trigger-fish, cell sitesimulator, or other device tocapture cellular phone ESNs,MINs, and cell site locale,without the aid of the serviceprovider

A record or other informationDrafted pursuant to 18 As provided for in 18 N/Aabout a subscriber or customerU.S.C. 2703(d); U.S.C. 2703(c)(1)(B);of a communications servicemagistrate may sign; noticenotice to customer orprovider or remote computingto customer or subscriber issubscriber is not requiredservice (not including the not requiredcontents of communications);see 18 U.S.C. 2703(c)(1)(B)

Name, address, local and longDrafted pursuant to 18 As provided for in 18 As provided for distance toll records, U.S.C. 2703(d); U.S.C. 2703(c)(1)(C); in 18 U.S.C.telephone numbers, or othermagistrate may sign; noticenotice to customer or 2703(c)(1)(C);subscriber numbers or to customer or subscriber issubscriber is not requirednotice to customer oridentities, and types of service;not required subscriber is notsee 18 U.S.C. 2703(c)(1)(C) required


Electronic Surveillance GuideMichael R. Sklaire, Trial AttorneyNarcotic and Dangerous Drug SectionCriminal Division

We just arrested the main target of our investi-gation and he had a pager on him. Is a search warrantrequired to look at the stored messages?

I have a case involving fraud over the Internet, andI want the subscriber information for a target subjectsaccount. Do I need a court order or will a subpoena besufficient?

I know I need a Title III to record the bad guysconversations. What if I want to put a video camera in hisresidence. Do I need a Title III? Do I have to send theaffidavit to Washington for approval?

very Assistant United States Attorney (AUSA)Eworking with agents on ongoing criminal investi-gations will be asked these types of questions.

Specifically, the agents want to know what type of courtorder, if any, is needed to obtain electronic informationsuch as phone records, dialed numbers, and computerfiles. Attached is a chart of the most commonly requestedsearches conducted in a criminal investigation, from real-time interceptions to stored computer records. Pleasenote that there are many issues involved in doingelectronic searches that are not covered here.Specifically, the statutes and case law dictate differentnotice, disclosure, minimization, and reportingrequirements for each type of search. Please contact theElectronic Surveillance Branch of the Office ofEnforcement Operations (OEO), at (202) 514-6809, orthe Computer Crimes Section at (202) 514-1206, withany questions concerning these requirements. The chartis broken down into the following headings:

1. Information Sought: Set forth below are generalcategories of requested information, ranging from thenumbers dialed from a subjects phone to the sub-scribers name, to the actual intercepted conversations.As defined in 18 U.S.C. 2510, a wire communicationis any communication involving a phone (cordless,residential, business, even cloned). An oral communi-cation is any conversation intercepted through the use ofa bug or listening device placed in the room. Anelectronic communication is anything intercepted overa pager, computer, or facsimile machine. Under Federallaw, if one party to a wire, oral, or electronic

communication consents to the recording ormonitoring of that communication, then no order,warrant, or Title III is required. The categories setforth in this chart apply to situations when no partyconsents to the interception of the communication.

2. Device: This category provides common terms forinterception or access devices. Some agencies may referto a pen register as a DNR (Dialed Number Recorder).A Caller ID device is the same thing as a trap andtrace. A cell site simulator or digital analyzer is a*

device that captures the electronic serial number andphone number of a cellular phone. A cloned cellularphone is a device that is programmed to copy andcapture the billing information of another phone so thatany calls made by or to the cloned cellular phone arebilled to the legitimate subscriber.

3. Paper Needed: A general rule is that if your agentswant to intercept a conversation or message real-time,while the communication is occurring, then a Title IIIwarrant is needed. If they desire communications instorage, such as stored pager or computer messages, thena search warrant is needed. If the desired information istoll records or transactional data (subscriber names andaddresses), then a subpoena is required. A Title IIIaffidavit must contain much more information than just ashowing of probable cause. Also, the probable causesection of a Title III is much more extensive than in anaffidavit for a search warrant. Contact OEO for samples.For stored communications and data, be sure to check thecase law and contact the Departments Computer CrimesSection.

4. Statute: Sections 2510-2520 of Title 18 should bereferred to when doing real-time interceptions of wire,oral, and electronic communications. Sections 3121-3123 should be referred to when conducting penregisters and trap and trace devices (real-time inter-ception of dialed digits). Sections 2701-2710 should bereferred to when dealing with stored electronic com-munications, otherwise known as computer files off anetwork, toll records from the phone company, historical

United States v. Fregoso, 60 F.3d 1314 (8th Cir. 1995)*


pager communications, etc. Section 2703 sets forth search warrant, probable cause plus. The probablewhether you need a search warrant, court order, or cause standard for a Title III is higher than for a normalsubpoena for the stored information. Finally, Rule 41 ofsearch warrant. In essence, you must show the court thatthe Federal Rules of Criminal Procedure (FRCP) governsany search warrant.

5. Authorizing Official(s): Only district court judgesmay authorize Title III interceptions (real-time com- achieve probable cause plus are through the use ofmunications). Magistrates may authorize search warrants,consensual calls made to the target facility, combinedpen registers, and court orders for stored with pen register or toll record analysis reflecting that thecommunications. In addition, before you get district courtfacility has been and is still being used for illegalauthorization for a Title III, remember the statute purposes.requires that the Assistant Attorney General of the A Title III order differs from a normal searchCriminal Division, or one of the Deputy Assistant warrant also in the statutory requirements of necessityAttorneys General (DAAG) authorize the interception.and alternative investigative techniques contained in 18That is accomplished by contacting OEOs Electronic U.S.C. 2518. The Government must show the court whySurveillance Branch. All Title III paperwork must besent to OEO for approval, with the exception of clonepagers, which can be approved in the respective UnitedStates Attorneys offices. In addition, the use of a ClosedCircuit Television (CCTV) needs to be approved byOEO before getting a warrant signed.

6. Duration: The general rule is that you have 30 days toconduct a Title III and 60 days to conduct a pen register,before you must go back to court (and OEO in the case ofTitle III) for new authorization. However, if theobjectives of the investigation have been met prior to theend of the 30-day period, then interception must beterminated. For a Title III, the 30-day interception periodbegins either when the interception is first conductedpursuant to the court order, or 10 days after the judgesigns the order, whichever comes first.

7. Standard of Review: For pen registers, trap and tracedevices, and Caller ID devices, you must show themagistrate simply that the information is relevant andmaterial to an ongoing criminal investigation. For court-authorized disclosure of phone records, subscriberinformation, and other transactional data, as defined in18 U.S.C. 2703(c), you must show specific andarticulable facts that reflect why this information isrelevant and material. For a Title III search warrant, youraffidavit must reflect more than probable cause for a

the particular phone (fax, computer, pager . . .) is clearlybeing used for illegal purposes. Mere inferences that thephone is being used based on pen registers and tollrecords are not usually sufficient. Common ways to

normal investigative procedures have not succeeded inobtaining the required evidence concerning criminalactivity. Further, in a Title III affidavit, minimizationprovisions must be set forth.

In addition, for a roving wiretap where the targetschange phones every few days, the court must make aspecific finding that the phones are being dropped sooften to thwart interception by law enforcement [18U.S.C. 2518(11)(b)]. Note that there is also a provisionfor roving oral interception, whereby it is not possible(or practical) to identify the location of the interceptionprior to the communication occurring [18 U.S.C.2518(11)(a)].

For a CCTV that is installed surreptitiously by theagents, the standard of review is probable cause, thesame as a search warrant. However, many circuits havenow adopted the standard set forth in the Ninth Circuit inUnited States v. Koyomejian,** whereby the CCTVsearch warrant must resemble a Title III warrant in termsof including such Title III requirements as minimization,alternative investigative techniques, and duration. Often,a request for CCTV is filed at the same time as a requestfor Title III interception of oral communications (bug).Contact OEO for further details.

___________________________**970 F.2d 536 (5th Cir. 1992)

For information in storage more than 180 days, a subpoena or court order may be sufficient.***


Commonly Requested Searches

Info Sought Device Paper Needed Statute Official(s) Duration ReviewAuthorizing Standard of

Phone Number Pen Register Court Order 18 USC Magistrate 60 Days RelevanceDialed Real Time 3121(outgoing)

Phone Number Trap and Court Order 18 USC Magistrate 60 Days RelevanceDialed Real Time Trace/ Caller 3121(incoming) ID

Incoming and Toll Records Grand Jury 18 USC Grand Jury/ Specific andOutgoing Phone Subpoena 2703(c) Agency/ ArticulableNumbers Dialed and Magistrate Facts (RelevantSubscriber Infoin Admin Subpoena and material toStorage an ongoing

Court Order investigation)

Oral Bug Title III 18 USC District Court 30 Days ProbableCommunications 2518 Judge (from 1st Cause+

and DOJ - interception,DAAG/ OEO or 10 days

fromsigning)

Wire Cellular Phone Title III 18 U.S.C. District Court 30 Days ProbableCommunications 2518 Judge Cause+(Real Time) Hardline and DOJ -

Phone DAAG/ OEO(business orresidential)

Cordless Phone

Faxed Documents FAX Machine Title III 18 U.S.C. District Court 30 Days Probable(Real Time) (electronic 2518 Judge Cause+

communica- and DOJ-tions) DAAG/OEO

Computer Files/ Computer Search Warrant 18 USC Magistrate Probable CauseStored or Down- Stand-alone (if info in storage 2703(a)loaded 180 days or and

less) Rule 41***

FRCP

Continued

A Title III is needed even if the phone is fraudulent or stolen because the communication is protected under Title III, regardless of

the facility used.

Examples of protected areas include the installation of a fence, closed curtains, or closed garage door. When the subjects exhibit an

EXPECTATION OF PRIVACY, then a search warrant is required.


Info Sought Device Paper Needed Statute Official Duration ReviewAuthorizing Standard of

Computer MessagesComputer Title III (if real- 18 U.SC District Court 30 Da