Criminal Law

Special Approval Requirements

  1. High Level Confidential Informants

    1. Prior to utilizing an individual as a High Level Confidential Informant, a case agent of a JLEA shall first obtain the written approval of the CIRC. A Criminal Division representative on the CIRC who disagrees with a decision to approve the use of an individual as a High Level Confidential Informant may seek review of that decision pursuant to paragraph (I)(G).
    2. In deciding whether to approve the use of a High Level Confidential Informant, the CIRC shall have access to any Initial or Completed Suitability Reports and Recommendations for the individual in question.
    3. After a final decision has been made to approve the use of a High Level Confidential Informant, the CIRC shall consider whether to notify the Chief Federal Prosecutor of any FPO that is participating in the conduct of an investigation that is, or would be, utilizing the High Level Confidential Informant, or any FPO that has been, or would be, working with that individual in connection with a prosecution, of the decision to approve that individual as a High Level Confidential Informant. If the CIRC determines that no such notification shall be made, the reason or reasons for the determination shall be provided to the Criminal Division representatives on the CIRC. A Criminal Division representative on the CIRC who disagrees with a decision not to provide such notification may seek review of that decision pursuant to paragraph (I)(G).
  2. Individuals Under the Obligation of a Legal Privilege of Confidentiality or Affiliated with the Media

    1. Prior to utilizing as a Confidential Informant an individual who is under the obligation of a legal privilege of confidentiality or affiliated with the media, a case agent of a JLEA shall first obtain the written approval of the CIRC. A Criminal Division representative on the CIRC who disagrees with a decision to approve the use of such an individual as a Confidential Informant may seek review of that decision pursuant to paragraph (I)(G).
    2. In deciding whether to approve the use as a Confidential Informant of an individual who is under the obligation of a legal privilege of confidentiality or affiliated with the media, the CIRC shall have access to any Initial or Completed Suitability Reports and Recommendations for the individual in question.
    3. After a final decision has been made to approve the use of an individual who is under the obligation of a legal privilege of confidentiality or affiliated with the media as a Confidential Informant, the CIRC shall consider whether to notify the Chief Federal Prosecutor of any FPO that is participating in the conduct of an investigation that is, or would be, utilizing the individual, or any FPO that has been, or would be, working with that individual in connection with a prosecution, of the decision to approve that individual as a Confidential Informant. If the CIRC determines that no such notification shall be made, the reason or reasons for the determination shall be provided to the Criminal Division representatives on the CIRC. A Criminal Division representative on the CIRC who disagrees with a decision not to provide such notification may seek review of that decision pursuant to paragraph (I)(G).
  3. Federal Prisoners, Probationers, Parolees, Detainees, and Supervised Releasees

    1. Consistent with extant Department of Justice requirements, a JLEA must receive the approval of the Criminal Division's Office of Enforcement Operations ("OEO") prior to utilizing as a CI an individual who is in the custody of the United States Marshals Service or the Bureau of Prisons, or who is under Bureau of Prisons supervision. See U.S.A.M. § 9-21.050.
    2. Prior to utilizing a federal probationer, parolee, or supervised releasee as a CI, a Field Manager of a JLEA shall determine if the use of that person in such a capacity would violate the terms and conditions of the person's probation, parole, or supervised release. If the Field Manger has reason to believe that it would violate such terms and conditions, prior to using the person as a CI, the Field Manager or his or her designee must obtain the permission of a federal probation, parole, or supervised release official with authority to grant such permission, which permission shall be documented in the CI's files. If such permission is denied or it is inappropriate for operational reasons to contact the appropriate federal official, the JLEA may seek to obtain authorization for the use of such individual as a CI from the Court then responsible for the individual's probation, parole, or supervised release, provided that the JLEA first consults with the FPO for that District.
    3. In situations where a FPO is either participating in the conduct of an investigation by a JLEA in which a federal probationer, parolee, or supervised releasee would be utilized as a CI, or where a FPO would be working with a federal probationer, parolee, or supervised releasee in connection with a prosecution, the JLEA shall notify the attorney assigned to the matter prior to using the person as a CI.
  4. Current or Former Participants in the Witness Security Program

    1. Consistent with extant Department of Justice requirements, a JLEA must receive the approval of OEO and the sponsoring prosecutor (or his or her successor) prior to utilizing as a CI a current or former participant in the Federal Witness Security Program, provided further that the OEO will coordinate such matters with the United States Marshals Service. See U.S.A.M. § 9-21.800.
    2. In situations where a FPO is either participating in the conduct of an investigation by a JLEA in which a current or former participant in the Witness Security Program would be utilized as a CI, or where a FPO would be working with a current or former participant in the Witness Security Program in connection with a prosecution, the JLEA shall notify the attorney assigned to the matter prior to using the person as a CI.
  5. State or Local Prisoners, Probationers, Parolees, or Supervised Releasees

    1. Prior to utilizing a state or local prisoner, probationer, parolee, or supervised releasee as a CI, a Field Manager of a JLEA shall determine if the use of that person in such a capacity would violate the terms and conditions of the person's incarceration, probation, parole, or supervised release. If the Field Manger has reason to believe that it would violate such terms and conditions, prior to using the person as a CI, the Field Manager or his or her designee must obtain the permission of a state or local prison, probation, parole, or supervised release official with authority to grant such permission, which permission shall be documented in the CI's files. If such permission is denied or it is inappropriate for operational reasons to contact the appropriate state or local official, the JLEA may seek to obtain authorization for the use of such individual as a CI from the state or local Court then responsible for the individual's incarceration, probation, parole, or supervised release.
    2. In situations where a FPO is either participating in the conduct of an investigation by a JLEA in which a state or local prisoner, probationer, parolee, or supervised releasee would be utilized as a CI, or where a FPO would be working with a state or local prisoner, probationer, parolee, or supervised releasee in connection with a prosecution, the JLEA shall notify the attorney assigned to the matter prior to using the person as a CI.
  6. Fugitives

    1. Except as provided below, a JLEA shall have no communication with a current or former CI who is a fugitive.
    2. A JLEA is permitted to have communication with a current or former CI who is a fugitive:

      1. if the communication is part of a legitimate effort by that JLEA to arrest the fugitive; or
      2. if approved, in advance whenever possible, by a Senior Field Manager of any federal, state, or local law enforcement agency that has a wanted record for the individual in the NCIC and, in the case of a federal warrant, by the FPO for the issuing District.
    3. A JLEA that has communication with a fugitive must promptly report such communication to all federal, state, and local law enforcement agencies and other law enforcement agencies having a wanted record for the individual in the NCIC, and document those communications in the CI's files.

7 This instruction should be provided if there is any apparent issue of immigration status that relates to the CI and the JLEA is not the Immigration and Naturalization Service.