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PRIVACY ACTS
SUBJECT: MANUAL OF INVESTIGATIVE
OPERATIONS AND GUIDELINE_SW MIOQ!
VOLUME 3 I
SECTIONS 1-13
FEDERAL BUREAU OF INVESTIGATION
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_ _ :-Hanual of Investigative Operations and Guidelines , A - Part 11 - " 1'-- ' 1 ' ' ,,,- PAGE E1 1 1 .
SECTION 1. FEDERAL CRIMINAL LAN
1-1 GENERAL DEFINITIONS
EFFECTIVE: 10/24/as
IIT14 * Unitedrstates
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L1 ._ 92,-92--i - -1, _Idij J - SensitivePRINTED 02/18/93The term, "United States," as used in Title 18 in aterritorial sense, includes all places and waters, continental orinsular, subject to the jurisdiction of the United States, except the
Canal Zone. 8 U.S.C. 5!
EFFECTIVE: 10/2a/as "
1-1.2 Department"Department" means one of the executive departmentsenumerated in Section 1 of Title 5, unless the context shows that suchterm was intended to describe the executive, legislative, or judicialbranches of the Government. 8 U.S.C. 6!
EFFECTIVE: 10/24/as
11.3 Agency .
"Agency" includes any department, independent establishment,commission, administration, authority, board or bureau of the UnitedStates or any corporation in which the United States has a proprietary .interest, unless the context shows that such term was intended to be used
in a more limited sense. 8 U.S.C. 6! p
EFFECTIVE: 10/2h/85
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Manual of Investigative Operations and GuidelinesPart 11 _ H , . PAGE 1 . -_ 2 I
Special Maritime and Territorial Jurisdiction of the
United States ] See H106, Part 1, 7-3, as-1.1 and 455;
Part 11, 1-1.10.!! il"l.4
As used in Title 18, this phrase includes the following:
"! The high seas, any other waters within the admiralty i
and maritime jurisdiction of the United States and out of the .jurisdiction of any particular State, and any vessel belonging inwhole or in part to the United States or any citizen thereof, or toany corporation created by or under the laws of the United States, or_f___4___of_any_State,_Ierritory,_District,;or_possessionWthereof,mwhentsuch_. '
/-'~ -1|:-5;
I :1., .-.:-
.»-./ -.92./.. ..vessel is within the admiralty and maritime jurisdiction of the United
States and out of the jurisdiction of any particular State.
,"! Any_vesse1 registered, licensed, or enrolled underthe laws of the United States, and being on a voyage upon the watersof any of the Great Lakes, or any of the waters connecting them, orupon the Saint Lawrence River where the same constitutes the
International Boundary Line. W
"! Any lands reserved or acquired for the use of the
United States, and under the exclusive or concurrent jurisdictionthereof, or any place purchased or otherwise acquired by the UnitedStates by consent of the legislature of the State in which the same -shall be, for the erection of a fort, magazine, arsenal, dockyard, or
other needful building.--
"! Any island, rock, or key containing deposits ofguano, which may, at the discretion of the President, be considered asappertaining to the United States.
! Any aircraft belonging in whole or in part to the " _;
United States, or any citizen thereof, or to any corporation createdby or under the laws of the United States, or any State, Territory,District, or possession thereof, while such aircraft is in flight overthe high seas, or over any other waters within the admiralty andmaritime jurisdiction of the United States and out of the jurisdiction
of any particular State.
"! Any vehicle used or designed for flight or"navigation in space and on the registry of the United States pursuantto the.Treaty on Principles Governing the Activities of States in theExploration and Use of Outer Space, Including the Moon and OtherCelestial Bodies and the Convention on Registration of ObjectsLaunched into Outer Space, while that vehicle is in flight, which is
v.
"Sensitive '- f.~ ' - PRINTED: 02/18/98 -*2 -i"°2 - ' .' . '1.
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Manual of Investigative Operations and Guidelines
Part II . PAGE 1 - 3
from the moment when all external doors are closed on Earth following
' cmbarkation until the moment when one such door is opened on Earth for
disembarkation or in the case of a forced landing, until the competent
authorities take over the responsibility for the vehicle and for
persons and property aboard.
' "! Any place outside the jurisdiction of any nationI with respect to an offense by or against a national of the United
States. - '
- |" 8! To the extent permitted by international law, any
i1_r_m__ nvreisntvesssliquréns-atvny=se1haxisshaiaehsdvled dsParEy£2_¬r°m;25_ __ -__ ,arrival in the United States with respect to an offense committed byor against a national of the United States." 8 U.S.C. 7!]1
EFFECTIVE: 02/11/97
/"1'}~5 J. _.9292;;? 1-1.5 Obligation or Other Security of the United States
The term, "obligation or other security of the United
States," includes all bonds, certificates of indebtedness, national bank
currency, Federal Reserve notes, Federal Reserve bank notes, coupons,
United States notes, Treasury notes, gold certificates, silver
certificates, fractional notes, certificates of deposit, bills, checks,or drafts for money, drawn by or upon authorized officers of the United _
States, stamps and other representatives of value, of whatever
denomination, issued under any Act of Congress, and cancelled United
-States stamps. 8 U.S.C, 8! l
92
EFFECTIVE: 10/24/85
0
'
ll.6 Vessel of the United States _
The term, "vessel of the United States," as used in Title 18
means a vessel belonging in whole or in part to the United States, or any
citizen thereof, or.any corporation created by or under the laws of the
United States, or of any State, Territory, District, or possession
thereof. 8 U.S.C. 9!
. _ Sensitive
_ 1 PRINTED: 02/18/98 r -
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Hanual of Investigative Operations and Guidelines
Part II i 92 ~ ' PAGE 1 4
EFFECTIVE: 10/24/85
1"1.7 Interstate Commerce
The term, "interstate commerce," as used in Title 18 includes
commerce between one State, Territory, Possession, or the District of
Columbia and another State, Territory, Possession, or the District of
Columbia. 8 U.S,C. 10!' Sensitive i
EFFECTIVE: 10/24/85 ' QC I * _ C I 1* _ " I I __ " I
1-1.8 Foreign Commerce 1
The term, Vforeign commerce," as used in Title 18 includes
commerce with a foreign country. 8 U.S.C. 10! C
EFFECTIVE: 10/24/85
1-1.9 Foreign Government ., -
The term, "foreign government," as used in Title 18, includes
any government, faction, or body of insurgents within a country withwhich the United States is at peace, irrespective of recognition by the
United States. 8 U.S.C. 11!
EFFECTIVE: 10/24/as
l1.10 Assimilative Crimes Statute »
Whoever within or upon any of the places now existing or
hereafter reserved or acquired as provided in 18 U.S.C. 7 see paragraph
1-1.4 above!: is guilty of any act of omission which, although not made
punishable by any enactment of Congress, would be punishable if committedor omitted within the jurisdiction of the State, Territory, Possession,
or District in which such place is situated, by the laws thereof in force
at the time of such act or omission, shall be guilty of a like offense
and subject to a like punishment. 8 U.S.C. 13! '
Sensitive' I ', .- PRINTED: 02/1a/9s E _?
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Manual of Investigative Operations and Guidelines
Part II " PAGE 1 - 5 . . _ ' '|
EFFECTIVE: 10/24/as
1-1.11 Citation of Code Section
92
Complaints filed before U.S. Magistrates for violations of
Title 18, U.S.C., should refer to the revised section of the code as
follows: "Title 18, U.S.C., Section no.! .'
_zlzmz____EEfECIlYE;_lQZ2&l§§ " o_, _ l __ _
!|l-1.12 Definition of Stolen or Counterfeit Nature of Property for
Certain Crimes See MIOG, Part I, l5l.1.l, 15-3.1, 15~3.2,
26-1.9, 26-4.5, 52-1.5, 87-2.1.1, 87-2.1.3, 87-2.2.1,i 37-2.2.2, 87-2.3.1, 87-2.3.2, 87-4.4, 91*3.10, IU3-1.5,
=' I98-2.8, and 1-1.12.1 through 1-1.12.5 below.!1 1»
' ».%K~Q§ Whenever it is an element of an offense in Title 18 that:
"! any property was embezzled, robbed, stolen, converted,
taken, altered, counterfeited, falsely made, forged, or obliterated; and
"! the defendant knew that the property was of such R
character; C
such element may be established by proof that the defendant, after or as ,
a result of an official representation as to the nature of the property, W
believed the property to be embezzled, robbed, stolen, converted, taken,
altered, counterfeited, falsely made, forged, or obliterated. . . . For
purposes of this section, the term official representation means any
representation made by a Federal law enforcement officer as defined in
I section 115! or by another person at the direction or with the approval
of such an officer." Title 18, U.S.C., Section 21!.
EFFECTIVE: 10/23/95
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gasp?
Sensitive A "
- PRINTED: 02/18/98
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FEDERAL BUREAU OF INVESTIGATION
F ![pA
DELETED PAGE INFORMATION SHEETXXXXXX .
j Page s! withheld entirely at this location in the le. One or more of the following statements, where indicated,explain this deletion. _ '
l[DeIetions were made pursuant to the exemptions indicated below with no segregable material available for
release to you.
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Information pertained only to a third party with no reference to the subject of your request or the subject of your
request is listed in the title only.
D Documents originated with another Government agency ies!. These documents were referred to that agency ies!
for review and direct response to you.
Pages contain information furnished by another Government agency ies!. You will be advised by the FBI asto the releasability of this information following our consultation with the other agency ies!.
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disposition at a later date.
Page s! withheld for the following reason s!: _Page s! withheld inasmuch as a nal release determination has not been made. You will be advised as to the
Pages were not considered for release as they are duplicative of g _
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Manual of Investigative Operations and Guidelines
Part II , - PAGE l - 9
I ll}l2.4 Establishing other Elements of Federal Offenses with Title
' 18, USC, Section 21 See MIOG, Part II, 1-1.12.!
! The scope of section 21 casts a broad net, encompassing
a number of Title 18 offenses, many of which require proof of interstate
or foreign travel. Others require, for example, a showing that property
belongs to the government Title 18, USC, Section 641! or was part of
an interstate shipment Title 18, USC, Section 659!. Prior to the
enactment of section 21, if the government had charged a defendant with
the substantive offense of receiving stolen goods, it had to prove that
.ii_ _£hs_9s§2s9ssE_52¢" ths_s229§m2s5s_§F°1e" ané_£§s the ssoés cspsssd are ,_ "state or United States boundary. Title 18, USC; Section 2315:! nder n ___ 7
the new statute, it is clear that proof of the first element knowledge
that the property is stolen! can be accomplished by undercover
representation that the property was "stolen." But there is no provisionin the text of the statute for satisfying the interstate or foreign i
travel requirement merely through representation.
W/ T? ! Since Congress expressly provided for representation of
92'._? only one element, it seems clear that it intended to retain the status .
' quo with respect to the other elements of proof. This interpretation
* requires proof that the goods actually cross a state or United States
boundary after being stolen or represented as such.
EFFECTIVE: 10/23/95
I-1.12.5 Conspiracy and Title 18, USC, Section 21 See HIOG, Part II,
1-1.12.! I '
* . ! With respect to inchoate crimes and conspiracy, section
92 21 appears to have no impact, because a conspiracy charge can be .
_ maintained regardless of whether the property was stolen or merely
represented as stolen. It is possible then that a conspiracy charge
could be maintained where property which is represented as stolen is also
represented as having traveled in interstate commerce under circumstances
where two or more of the targets agree to commit the illegal act, i.e.,
if the jurisdictional nexus can be supplied by evidence that the
' - defendants had agreed to receive goods that they believed were both
92 stolen and transported interstate. SEE UNITED STATES V. ROSE, 590 F.2d/ijsg» 232, 23s36 th Cir. 1973! jurisdictional nexus established where92Qii£§ = defendants plotted to steal property in_Arizona and have it transported
Sensitive
- PRINTED: 02/18/98 .
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to Illinois, but unwittingly recruited undercover Agents to commit the
robbery and transport the property, so neither theft nor interstate
transport occurred!, CERT. DENIED, 442 U.S.929 I979!; cf. UNITED STATESV. ROSA, 17 F.3d 1531, 1544-46.d Cir.! jurisdictional nexus supplied
because goods defendants purchased, believing they were stolen, had infact traveled across state lines, and alternatively because at least one
member of the conspiracy believed that the goods had traveled "
interstate!, CERT. DENIED, 115 s. ct. 221 994!.
,- ! Given the various circumstances which may suffice tosupply the federal jurisdictional predicate for a conspiracy, charging
ii_.E2'}_§Pi}EEYjf_l"Eil~_f.£§_£'$ ==.1-1>a§s=1E i"s.11i9l§.£i<?n can enhance thepotential for obtaining a ¢6hvi¢t{B5T"os"chars;;"EéWé¬E?In¬UI§¬bnf 47
Counsel and the appropriate United States Attorney's office should be
consulted in each case when developing undercover scenarios and
evaluating prosecutorial strategies. In addition, FBIHQ approval shouldbe obtained pursuant to the Attorney General's Guidelines on FBI h;
Undercover Operations when circumstances so require.| a ii
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EFFECTIVE: 10/23/95
1-Z FEDERAL CRIMES
All federal crimes are statutory; there are no federal
common law crimes. _
! Felony .
A felony is any offense punishable by death or _imprisonment for a term exceeding one.year. Additionally, felonies
have been divided into five classifications:
a! Class A - maximum penalty of death or life
imprisonment;
b! Class B maximum penalty of|25|years or more in
prison;
c! Class C " maximum term of imprisonment of 10 or
more years, but less than|25|years; 9
- d! Class D r maximum term of imprisonment of five
years or more, but less than 10 years; *
Sensitive
: PRINTED: 02/18/98 . _ _
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Manual of Investigative Operations and Guidelines
Part IIPAGE 1
e! Class E - maximum term of imprisonment of more
' than one year, but less than five years.
1IA person or an organization convicted of a felony offense may also be
fined the greatest of ! the amount specified in the law setting
forth the offense; ! twice the pecuniary gain or loss caused by the
offense or $250,000 $500,000 in case of a corporation!.|
! Misdemeanor
_ _ &gy_9the:_offensquiswagigggmeanotj__H9wey§§,,_g__ _____ W
" a! Class A " maximum term of
than six months, but not exceeding one year,
b! Class B - maximum term of
months, but more than 30 days;
!.-- :';, HE . c! Class C - maximum term of
3 days, but more than five days;
- d! Infraction - five days or
imprisonment is authorized. Tn.
fmisdemeanor offenses have also been classified as follows:
imprisonment of more
imprisonment of six
imprisonment of 30
less, or if no
A person convicted of a misdemeanor that resulted in the loss of
human life may be fined up to $250,000, or in the case of|an
organization,|$500,000. The maximum fine for persons convicted ofother misdemeanors is|$100,000 $200,000|for|organizations!.I The|pena1ty[for an infraction may include a fine of up to|$5,000 for
individuals and $10,000 forlan organization.]
! _Under Title 18, USC, Section 3401, a U.S. Magistrate,
under certain circumstances, may try_persons accused_of, and sentence
persons convicted of, misdemeanors committed within the district in
which the U.S. Magistrate presides.
EFFECTIVE: 02/11/97 '
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PRINTED: 02/18/98
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Manual of Investigative Operations and GuidelinesPart II. ' ' - . PAGE l -
1-3 PARTIES TO CRIME
I! Principal . i
A person who commits an offense against the UnitedStates or aids, abets, counsels, commands, induces, or procures its
commission, is punishable as a principal. Likewise, a person whowillfully causes an act to be done.which if directly performed by him/heror another would be an offense against the United States, is punishable
as a principal. Title 18, USC, Section 2! This section makes clear the
intent of Congress_to punish as a principal one who puts in motion or
asaisIsiin_Ih. tll§sel_§n£er i§e_9;_9aussstthe_§9msi§sion of an. _12
. § 1 . MUQPF _ . . 7., . W,
indispensable e1ement.of the offense by an innocent agent or
instrumentality, even though he/she intentionally refrained from the
direct act constituting the completed offense.
! Accessory After the Fact
_ Any person, knowing'that an offense against the UnitedStates has been committed, receives, relieves, comforts or assists the
offender in order to hinder or prevent his/her apprehension, trial or
punishment is an accessory after the fact. Punishment for an accessoryis less severe than that of a principal. Title 18, USC, Section 3!
a! Classification of an offense involving an accessoryis the same as the substantive offense.
f b! Character of offense should be shown as:
" Substantive Offense! - Accessory After the Fact." ~
c! Copies of reports to FBIHQ should be the same asin the case of the substantive offense.
EFFECTIVE: 02/22/88 A
_1 0Sensitive
PRINTED:-02/18/98 ' _
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Manual of Investigative Operations and Guidelines
Part II . PAGE 1
1-0 STATUTE OF LIMITATIUNS
The statute of limitations operates from the time a crime
is actually committed until the time an indictment is returned or an
information is instituted. An indictment or information stops the
running of the statute of limitations although the accused may not be
in custody or tried for some time thereafter. -
! Capital Offense
1 An indictment for any offense punishable by death may
' ' i_t,a_t_i,0;1_.-_".i,tle 13., _L.l.S..C ,.I$_e_=.t_i_qn _,z
92
- 13
.m
3281! _.
! Noncapital Offense
Unless_otherwise expressly provided by law, no person
shall be prosecuted, tried or punished for any offense, not capital,
unless the indictment is found or the information is instituted within
five years next after such offense shall have been committed. Title
18, USC, Section 3282!
! Fugitive ' 92
~ No statute of limitations shall extend to any person
fleeing from justice. Title 18, USC, Section 3290!
! In all investigations, particularly if the defendant
is a fugitive, employees should give due regard to the statute of
limitations and request U.S. Attorneys to secure indictments or file
informations within the five-year period in order to avoid this plea
as a bar to prosecution of the defendant.
! Extension of Statute of Limitations for Certain
Terrorism Offenses Title 18, USC, Section 3236!:
l 4
"Notwithstanding section 3282, no person shall be
prosecuted, tried or punished for any offense.involving a violation of
section 32 aircraft destruction!, section 36 airport violence!,
section 112 assaults upon diplomats!, section 351 crimes against
Congressmen or Cabinet officers!, section 1116 crimes against
diplomats!, section 1203 hostage taking!, section 1361 willful
injury to government property!, section 1751 crimes against the
President!, section 2280 maritime violence!, section 2281 maritime
platform violence!, section 2331 terrorist acts abroad against United
States nationals!, section 2339 use of weapons of mass destruction!,
Sensitive '
PRINTED: 02/ 18/93 . .
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or section 2340A torture! of this title or section 46502, 46504,
46505 or 46506 of title 49, unless the indictment is found or the
information is instituted within eight years after the offense was
committed."~.1
1 - a! _The above shall not apply to any offense
committed MORE than five years prior to the date of the enactment of
this act September 13, 1994!. _
b! For clarification regarding the statute of
limitations pertaining to FBI counterterrorism extraterritorial
investigations"PRIOR_to_the,passage_of_thislegis1ation,_the DOJ_has__w_%W4,_ ______advised the following: - _
1. MURDER r The statute of limitations will
expire EIGHT years from the occurrence of the offense in cases in
which U.S. nationals were HURDERED abroad IF the murder occurred five
years PRIOR to September 13, 1994, AND DOJ has determined that the
specific case is a violation of Title 18, USC, Section 2331. There is
NO statute of limitations in cases where a U.S. national was murdered
ON THE DATE or THE PASSAGE or THIS ACT September 13, 1994!.
Z. ATTEMPTED HURDER OR CONSPIRACY TO MURDER -
DOJ advised that the statute of limitations will expire FIVE years
from the anniversary of the offense in cases of ATTEMPTED murder of a
U.S. national outside the United States if the attempted murder
occurred FIVE years prior to September 13, 1994. ,
EFFECTIVE: 02/14/97
1-5 HISPRISION OF A FELONY '
It is a federal offense punishable by a fine or
imprisonment of not more than three years, or both, for a person,
having knowledge of the actual commission of a felony cognizable by a
court of the United States, to conceal and not make known as soon as
possible this fact to a judge or other person in civil or military
apthority under the United States., Title 18, USC, Section 4!
! Classification of a misprision violation
as the substantive offense.is the same
! Character of offense should be shown as:
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Part II " '5 . _ i A v PAGE 1 - 15
" Suostantive Offense! * Misprision of Felony." I
i ! Copies of reports to FBIHQ should be the same as in
the case of the substantive offense.
EFFECTIVE: O2/11/97
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Manual of Investigative Operations and GuidelinesPart 11- - PAGE
SECTION 2. FEDERAL RULES OF CRIMINAL PROCEDURE
2-1 IN GENERAL 92
The Federal Rules of Criminal Procedure FED.R.CRIM.P.!
govern the procedure in all criminal proceedings in the Federal
courts; and, whenever specifically provided in one of the rules, to
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EFFECTIVE: 08/21/87/
2-2 VENUE RULE 18!
Except as otherwise permitted by statute or by the
FED.R.CRIH.P., prosecution shall be had in a district in which the
offense was committed. The court shall fix the place of trial within
the district with due regard to the convenience of the defendant and
the witnesses. ' '
1
EFFECTIVE: 08/21/87 _
2-3 UNITED STATES MAGISTRATE USMAGIS!
USHAGIS's are appointed by the judges of each Federal
district court in such numbers and at such locations as the Judicial
Conference of the United States may determine.
EFFECTIVE: 08/21/87
Sensitive-' PRINTED: 02/18/98 8
Manual of Investigative Operations and Guidelines
Part II ' PAGE 2
2-3.1 Duties
The chief duties of the USHAGIS's are to:
! Receive complaints concerning crimes against the
United States.
" ! Issue warrants of arrest, search warrants, summonses,
and subpoenas. -
! Conduct proceedings at the initial appearance and
prelimi ry esamination_of an arrested orgsummoned person_to_determine na W, __p_ _ , _ _________ __ _ _ __ _ "_n_ _,,whether there is probable cause to hold him/her for further criminal
process, and conduct removal hearings under Rule 40.
! Appoint counsel under the Criminal Justice Act of
1964 for arrested persons who are unable to retain counsel of their
own; admit arrested persons to bail under the Bail Reform Act of|1984
Title 18, USC, Sections 3141*3156!; and commit to jail those who fail
to make bail. .
! Try|misdemeanor|cases pursuant to Title 18, USC,Section 3401 when specially designated by the district court andlif
the accused files a written consent to be tried by the magistrate that
specifically waives trial, judgment and sentencing by a judge of thedistrict court. In all cases resulting in conviction, an appeal may
be taken to a judge of the district court of the district in which the
offense was committed.
EFFECTIVE: 08/21/87
2-4 STATE MAGISTRATES
Title 18, USC, Section 3041 provides that Ffor any offense
against the United States, the offender may, by any justice or judge
of the United States, or by any United States magistrate, or by anychancellor, judge of a supreme or superior court, chief or first judge
of common pleas, mayor of a city, justice of the peace, or other
magistrate, of any state where the offender may be found, and at the
expense of the United States, be arrested and imprisoned or released .
. . as the case may be, for trial before such court of the United
States as by law has cognizance of the offense." Thus, for purposes
of Rules 3, 4, and 5,|FED.R.CRIH.P.,|state officials included in the
foregoing statute have the same authority as a[USHAGIS.| State
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officials, however, may not conduct preliminary proceedings under Rule,"[ 40,|FEo.R.caIn.P.[ _ r
' 1
EFFECTIVE: 08/16/82
2-5 COMPLAINTS RULE 3!
g The complaint is a written statement of the essential
facts constituting the offense charged. It shall be made upon oath
before agmagistrate, The latter term, "magistrate," as notedL_ g.,'.;»~; JP-'-.> vi._92 ,
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I includes a|USHAGIS,|a judge of the United States, and a state or localjudicial officer, authorized by Title 18, USC, Section 3041 to perform
the functions prescribed in Rules 3, 4, and 5. Probable cause must be
shown in the complaint or in an affidavit to be filed with the -
complaint. References to "complaint" used in this and related
paragraphs should be understood to embrace the affidavit filed with
the complaint. _
' EFFECTIVE: 08/16/s2
2-5.1 Authorization of U.S. Attorney USA!
Special Agents shall obtain prior authority from the USA
or an Assistant USA AUSA! before filing a criminal complaint. If
Agents are uncertain as to the Bureau's investigative jurisdiction,
they should confer with the SAC before filing a complaint. Agents
shall not urge prosecution or suggest that no prosecution be
undertaken; nor shall they express an opinion as to the advisability
of entering a nolle prosequi in any case investigated by the Bureau.
The determination as to whether the case will be prosecuted is a
function of the USA or an official of the Department of Justice when
such decisions are reserved by the Department. The function of SAs of
the FBI is to conduct thorough investigations of cases in a legal and
ethical manner and carry through to a logical conclusion. Generally,
any information desired by the USA in connection with a case
investigated by SAs of this Bureau should be furnished upon his/her
request. If in doubt, request FBIHQ advice.
"EFFECTIVE: 08/16/82
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2-5.2 Re-presentation of Cases
Special Agents shall not re-present cases to the USAs when
they once have declined prosecution unless new evidence has been
developed. In the event the Department instructs or if other reasons
exist justifying a re-presentation of a case to the USA, only the SAC
or the designated Assistant SAC ASAC! will be authorized to make such
a re-presentation of the case to the USA. This rule shall not be -
interpreted so as to interfere with full and complete discussions
between SAs and the USAs concerning cases over which the latter has
jurisdiction. -¢_
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2-5.3 State Prosecutions
Criminal investigations conducted by the FBI are designed
to obtain evidence for prosecution in Federal court and not in state
or local courts. When Agents discuss cases with the USA or his/her
assistant, it is expected that such will be done with sufficient
aggressiveness to ensure the Bureau's interests are fully protected.
The FBI does not have the manpower_to investigate violations which are
later prosecuted in other than Federal courts. During presentations
of cases to USAs, it is expected that the amount of time and effort
expended by FBI personnel will be made known in its proper
perspective. Consideration can then be given to this factor by the USA
prior to deciding whether he/she will decline prosecution in favor of
handling by local authorities. Be aware that if a case is
investigated by the FBI and prosecuted in local court, additional
Agent time and expense may well be lost if Bureau personnel are called
on to testify in state court. _
EFFECTIVE: 08/16/82 .
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2-5.4, Authority for Issuance of Warrant
I TheIUSHAGISsIhave authority to issue warrants or
summonses for any person charged with a felony or misdemeanor if: a!
a complaint under oath is filed containing sufficient facts, b! toI constitute a Federal offense, and c! to satisfy theIUSMAGISIthat
probable cause exists for the issuance of a warrant. Any citizen mayI act as complainant, but in such cases,IUSMAGIS's|wi1l rarely issue a
warrant without first securing the approval of the USA.
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2-5.5 Notification to Special Agent in Charge SAC!
The SAC shall be notified immediately when complaints are
filed. This notification should be set forth by memorandum in the
usual case. A copy_of every complaint and of any affidavit filed with
' ~ the complaint by an Agent is to be obtained and filed as serialsin1~ 5;-.
F w-A. _I,_the field office case file. Where efforts to have process issued are92* unsuccessful, for any reason, this fact should be reported.
EFFECTIVE: 08/16/82
Z*6 WARRANT OF ARREST OR SUMHONS RULE 4!
EFFECTIVE: 08/16/82
'2-6.1 Forms of Warrant
' |
There are two forms of warrants
I law violators. The Magistrate's Warrant
based upon a complaint. A Bench Warrant
U.S. District Court following the return
filing of an information on order of the
EFFECTIVE: 08/16/82is
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2-6.2 Issuance of Warrant or Summons
U If it appears from the complaint, or an affidavit or
affidavits filed with the complaint, that there is probable cause to
believe that an offense has been committed and that the defendant has
committed it, a warrant for the arrest of the defendant shall issue to
any officer authorized by law to execute it. The finding of probable
cause may be based upon hearsay evidence in whole or in part.
Warrants should be addressed to "Any United States Marshal or any '
other authorized officer." Upon the request of the attorney for the
Government, a summons instead of a warrant shall issue. "More than one
warrantpormsummo m§y_issp§ on_the_same'complaint4_ If_a defendant_ns .
fails to appear in response to a summons, a warrant shall issue. If
an indictment is returned by the grand jury or an information,
supported by oath and establishing probable cause, is filed, the court
shall issue a warrant for each defendant named upon the request of the
USA. The court or the USA may request the issuance of a summons
instead of a warrant.
EFFECTIVE: 08/28/91
2-6.3 Execution
! Arrest warrants shall be executed byia marshal or by
some other officer authorized by law. The warrant may be executed at
any place within the jurisdiction of the United States. Therefore,
when a warrant has been issued and is still outstanding, it is not
necessary to file-another complaint and obtain another warrant in
another jurisdiction for the same offense. The warrant shall be
executed by the arrest of the defendant. The officer need not have
the warrant in his/her possession at the_time of the arrest but, upon
request, he/she shall show the warrant to the defendant as soon as
possible. If the officer does not have the-warrant in his/her A
possession at the time of arrest, he/she shall then inform the
defendant of the offense charged and of the fact that a warrant has
been issued. When time will permit and the successful arrest of
subject will in no way be jeopardized, the arresting Agent should have
the warrant of arrest in his/her possession in order that the same may
be exhibited to the subject upon request." _I
! A summons may be served at any place within the
jurisdiction of the United States. The summons shall be served upon a
defendant by delivering a copy to him/her personally, or by leaving it
at his/her dwelling house or usual place of abode with some person of
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suitable age and discretion then residing therein, and by mailing it
to the defendant's last known address. Summonses should not be served
by Bureau Agents except upon FBIHQ authority.
EFFECTIVE: 08/28/91
2-7 PROCEEDINGS BEFORE THE MAGISTRATE RULE 5!
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A 2ll.4.1, 11l.4; and Legal Handbook for Special Agents,
3-s.!| "
1Except as provided below, the|arrested person shall be
taken without unnecessary delay before the nearest available federal
magistrate or, in the event that a federal magistrate is not
reasonably available, before a state or~local_judicial officer
authorized by Title 18, USC, Section 3041. |That procedure need not be
followed if the person is arrested undera warrant issued upon a
complaint that charges only a violation of Title 18, USC, Section 1073
UFAP!, the arrested person is transferred without unnecessary delay
to the custody of appropriate state or local authorities in the
district of arrest, and the government attorney in the originating
district moves promptly for the dismissal of the UFAP complaint. The
Department of Justice Criminal Division has advised FBIHQ that it is
not necessary to wait until the UFAP warrant has actually been
dismissed before releasing the subject to state or local authorities,
but it is important that efficient procedures be implemented and
followed to make sure that UFAP warrants are promptly dismissed after
notification of an arrest is given.!| If a person arrested without a
warrant is brought before a magistrate, a complaint shall be filed
forthwith which shall comply with the requirements of Rule 4 a! with
respect to the showing of probable cause. A personal, telephone, or
electronic presentation of the complaint setting forth probable cause
for the magistrate must occur within 48 hours following a warrantless
arrest if the arrestee is detained and an initial appearance cannot be
held within that 48-hour period. - _ '
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EFFECTIVE: 05/10/96
2-7.2 Misdemeanors
If the charge against the defendant is a misdemeanor
triable by a USMAGIS under Title 18, USC, Section 3401, the USHAGIS
rshall proceed in accordance with the Rules of Procedure for the Trial
of Misdemeanors Before U.S. Magistrates. If the charge against the
defendant is not triable by the USMAGIS, the defendant shall not be
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EFFECTIVE: O8/28/91
2-7.3 Statement by Magistrate
. I __,,_A.51"QQCRL The magistrate shall inform the defendant:
! Of the complaint against him/her and of any affidavit
filed therewith.
! Of his/her right to retain counsel and of his/her
right to request the assignment of counsel if he/she is unable to
obtain counsel followed by appointment of counsel where the arrested
person requests counsel and has been unable to obtain counsel -
Criminal Justice Act of 1964!. The magistrate shall allow the
defendant reasonable time and opportunity to consult counsel.
! Of the general circumstances under which he/she may
secure pretrial release - Bail Reform Act of|l984] Title 18, USC,
92 Sections|3141-3156!. The magistrate may set such conditions as are
appropriate to assure the defendant's presence at subsequent judicial
proceedings and to assure the safety of any other person or the
community. If no condition or combination of conditions would
reasonably assure the appearance of the defendant as required and the
safety of any other person_and the community, after a hearing the
magistrate may order the detention of the person prior to trial. To
assist in determining eligibility for pretrial release, the magistrate
may receive information provided by or through the chief pretrial
; services officer of the district. Agents contacted by pretrial
- services officers for information relative to the defendant's pretrial
:g3§ release should record in the investigative file all such information
Q}-'92
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! That defendant is not required to make a statement
and that any statement made by defendant'may be used against him/her.
! Of defendant's right to'a preliminary examination.
EFFECTIVE: 03/Z1/87
2-7.4 Waiver of Preliminary Examination
A defendant is entitled to a preliminary examination,
unless waived, when charged with any offense other than a petty _ ~
offense, which is to be tried by'a judge of the district court. If
the defendant waives preliminary examination, the magistrate shall
forthwith hold defendant to answer-in the district court. If the
defendant does not waive the preliminaryLexamination, the magistrate
shall schedule a preliminary examination. Such examination shall be iii held within a reasonable time but, in any event, not later than 102
.92 ._ Ldays following the initial appearance if the defendant is in custodyl ' and no later than 20 days if defendant is not in custody, provided,
however, that the preliminary examination shall not be held if the
defendant is indicted or if an information against the defendant is
filed in district court before the date set for the preliminary
examination. With the consent of the defendant and upon a showing of
good cause, taking into consideration the public interest in the
prompt disposition of criminal cases, time limits specified in this
rule may be extended one or more times by a Federal magistrate. In
the absence of such consent by the defendant, time limits may be- f
extended by a judge of the United States only upon a showing that
extraordinary circumstances exist and that delay is indispensable to
the interests of justice.a
EFFECTIVE: 08/21/87 ,
2-7.5 Custody Pending Hearing
If the arrested person is to be held for a preliminary
examination or for the district court and he/she cannot furnish bond,
I he/she is incarcerated until presented before the|USHAGIS|or the U.S.
District Court. '
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EFFECTIVE: D8/16/82 ~
2-8 PRELIMINARY EXAMINATION RULE 5.1!
The preliminary examination is an adversary hearing, the
purpose of which is to determine if there is probable cause for
holding the accused to await the action of the U.S. District Court.
Witnesses testify under oath and are subject to cross-examination.
I The hearing is usually before a|USMAGIS.
EFFECTIVE: 08/16/82
2-3.1 Role of Special Agent
Special Agents of the Bureau in practice are frequentlyqiité I present at such preliminary examinations before|USHAGIS's[in cases
' I-ig which they have investigated. It sometimes occurs they are requested
by the|USMAGIS|to put on the Government's witnesses and to
cross-examine the defendants. However, the USA or his/her assistant
is the proper person to represent the Government at such preliminary
examinations. Under no circumstances shall such Agents examine
witnesses at these hearings. When it is impossible for the USA or
| his/her assistant to be present, the|USHAGIS|wil1 usually conduct the
hearing or arrange_to question the witnesses himself/herself in order
to ascertain the facts in the case.
EFFECTIVE: O8/16/32
Z-3.2 Discharge
J
' If from the evidence it appears that there is no probable
cause to believe that an offense has been committed or that the
I defendant committed it, the|USHAGIS|shall dismiss the complaint and
discharge the defendant. The discharge of the defendant shall not
preclude the Government from instituting a subsequent prosecution for
the same offense. If a|USMAGIS|discharges a defendant, this is not,
is noted, a bar to further prosecution. A hearing before a|USMAGIS|
does not constitute jeopardy.
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EFFECTIVE: 08/16/B2 I
2-8.3 Finding of Probable Cause
' - If from the evidence it appears that there is probable
cause to believe that an offense has been cpmmitted and that the p
defendant committed it, the USHAGIS shall forthwith hold him/her to
answer in district court. The finding of probable cause may be based
upon hearsay evidence in whole or in part. |The|defendant may cross-
examine witnesses against him/her and may introduce evidence in
his/her own behalf.1 "
EFFECTIVE: 02/11/97
2"8.4 Objections to Evidence
Objections to evidence on the ground that it was acquired
by unlawful means are not properly made at the preliminary
examination. Motions to suppress must be made to the trial court as
provided in Rule 12.
EFFECTIVE: 08/16/82
2-9 GRAND JURY RULE 6!
08/21/87 EFFECTIVE!
J
2-9.1 Purpose
The function of the grand jury is to decide if there is
and probable cause for trying the defendant in court. It
determination based on evidence presented by the USA or
AUSA in an ex parte proceeding. The grand jury operates under the
direction and guidance of the_U.S. District Court. Generally, only
witnesses for the prosecution testify before the grand jury.sufficient
makes this
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EFFECTIVE: 08/21/87
Z-9.2 Persons Present
Only the USA or an assistant, the witness under
examination, interpreters when needed, and, for the purpose of taking
the evidence, a stenographer or operator of a recording device may be
present while the grand jury is in session. No person other than the
jurors may be present while the grand jury is deliberating or voting.
EFFECTIVE: O8/21/87
2*9.3 Disclosure
A grand juror, interpreter, stenographer, operator of a iii recording device, typist, attorney for the Government, or other
I -~ Government personnel designated by the attorney for the Government
p '- shall not disclose matters occurring before the grand jury.
EFFECTIVE: O8/21/87
2-9.4 Exceptions| See nzoc, Part 11, 2-9.5, 29.s.1, 2-9.7;
MAOP, Part II, 99.!| - "
Exceptions to the foregoing rule are where disclosure:
! is ordered by the court preliminarily to or in
connection with a judicial proceeding;
. . _ I
- ! is permitted by the court at the request of defendant
upon showing that grounds may exist to dismiss the indictment because
of matters occurring before the grand jury; ' .
! is made to an attorney for the government for use in
the performance of his/her duty; '
! is made to such government personnel including
- personnel of'a state or subdivision of a state! as are deemed
necessary by an attorneyfor the government to assist an attorney for
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the government in the performance of his/her duty to enforce federal
criminal law; _
! is made by an attorney for the government to another
federal grand jury; and '
! is permitted by a court at the request of an attorney
for the government, upon a showing that such matters may disclose a-_
violation of state criminal law, to an appropriate official of a state
or subdivision of a state for the purpose of enforcing such law.~£%§
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2-9.5 Limitation of Use| See HIOG, Part 11, 29.5.1, 2-9.7,
23-6.6.5; MAOP, Part II,|24.4.16,199.!
Pursuant to Federal Rule of Criminal Procedure 6 e! !
A! ii! the Rule!, FBI and other government personnel to whom
disclosure is made under MIOG, Part II,-2-9. above may not use grand
jury material thus disclosed for any purpose other than assisting the
attorney for the government in the performance of his/her duty to
enforce federal criminal law. Grand jury secrecy continues
indefinitely, regardless of whether there is an indictment, unless the
material becomes a matter of public record, such as by being
introduced at trial. Because of the severe limitations on the use of
information that is obtained by the use of a grand jury subpoena,
whenever possible, alternatives to the grand jury subpoena, such as
administrative subpoenas, search warrants, witness interviews, and
electronic surveillance should be considered as a method of obtaining
evidence, especially if future civil sanctions are likely. The
following requirements are necessary because of the Rule's mandate of
secrecy. r ' p g
' ! Disclosure of grand jury material cannot be made i
within the FBI for unrelated investigations unless a government ,
attorney has determined that such disclosure to a particular
investigator is needed to assist that attorney in a specific criminal
investigation. The ability of government attorneys to freely share
grand jury material with other government attorneys for related or .
unrelated criminal investigations does not extend to investigators
without case specific authorization from the government attorney.
Therefore, grand jury material cannot be entrusted to a general system
of records, freely accessible to individual Agents acting on
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their own. See MAOP, Part II, 24.4.4|and 2-4.4.16.![
. ! In the.event that a government attorney authorizes
the disclosure of grand jury material in the possession of the FBI for
use in an unrelated federal criminal matter, such approval should be
documented in the appropriate grand jury1subfile s!. That
documentation will, of course, be in addition to any necessary
supplementation to the government attorney's Rule 6 e! disclosure
letter and/or to the internal disclosure list. '
_ ! Grand jury information cannot be used for civil cases
or npncrimina inyestigations withgut_a_pgu§t order Th U S 1: . .
Attorney's Office USAO! should be consulted immediately for
precautionary instructions if the possibility arises that grand jury
material will have application in civil law gnforcement functions
e.g., civil RICO or civil forfeiture!. There are very limited
exceptions that allow government attorneys to use grand jury materials
or information in civil matters e.g., civil penalty proceedings
concerning banking'1aw violations!. However, these exceptions do not
automatically apply to investigative personnel. Therefore, any
similar use of grand jury information by the FBI must be approved by
the government attorney.
! Disclosure cannot be made without a court order for
use in noncriminal investigations such as background, applicant, or
foreign counterintelligence unless in the prosecutive stage and the
use is authorized as outlined above!. - '
! The Rule allows a government attorney to disclose
grand jury material to state and local authorities so that they can
provide assistance to that attorney in enforcing federal criminal law.
The same rules apply as with disclosure to federal officers. A court
order is required in order for a government attorney to make a
disclosure of grand jury material relative to a state law violation.
The Rule contains no specific provision concerning disclosure to
foreign officials. The USAO should be consulted withlregard to the
possibility of such a disclosure pursuant to a treaty, or with a court
order upon a showing of particularized need preliminary to a judicial
proceeding. See MAOP, Part II, 9-3.1.3.! '
! Personnel of the government who are preparing a
response to a Freedom of Information Act or Privacy Act requestmay
properly access grand jury material under the Rule because they are
considered to be assisting the grand jury attorney by ensuring against
any improper disclosure.
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2-9.5.1 Hatters Occurring Before the Grand Jury
|!|There can be no routine dissemination of|matters
occurring before the grand jury, unless such dissemination comes
within the exceptions enumerated in HIOG, Part II, 2-9.4 and detailed '
further in MIOG, Part II, 2-9.5 above see HAOP, Part II, 9-9!. There
before the grand jury except for what is generally referred to as
"core" grand jury material. The two other categories of matters
occurring before the grand jury are documents created independent of
the grand jury but obtained by grand jury subpoena, and data extracted
from records obtained by grand jury subpoena.
! Core
' a!
b!
c!grand
Names
Grand
Grandjury material includes the following:
of targets and witnesses
jury testimony
jury subpoenas
d Documents with references to grand jury
testimony including summaries and analyses!
r
e! Documents that clearly reveal their
connection to the grand jury process
I E! Other material that reveals
direction, testimony, or other proceedings of athe strategy,
grand jury
! The-need for secrecy with regard to documents created
independently, and later obtained by grand jury subpoena, has been
viewed in several ways by federal courts. Because of the lack of
uniformity of interpretation by the courts concerning subpoenaed
business records and Rule 6 e!, all such grand jury subpoenaed
documents should be treated as 6 e! material. '
! Information extracted from business records that were
obtained by grand jury subpoena is often used to facilitate .
investigations. Some of that type of data is, by a statute or case
law, subject to the Rule. In other cases, the determination of
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whether data must be considered subject to the Rule depends on the
case law and local practice in the federal districts.
a! Information extracted from grand jury subpoenaed
financial records subject to the Right to Financial Privacy Act of
1978 Title 12, USC, Section 342D! must be treated as grand jury
material Punless such record has been used in the prosecution of a
crime for which the grand jury issued an indictment or presentment
...." See moo, Part II, 236.6.5.! '
b! With the approval of the U.S. Attorney's Office
U§A0!,_information from subpoenaedételephone recordswmayébe disclosed161
-
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for use in unrelated federal criminal investigations in those
districts where such material is not considered a "matter occurring
before a grand jury." If the USAO approves generally of this
procedure, such information may be used in unrelated CRIMINAL
investigations without authorization from a government attorney in
each instance. However, to prevent disclosures such as in the civil
context! which might constitute an abuse of the grand jury's coercive
powers, subpoenaed telephone records should be memorialized only in a
database or other system of records dedicated exclusively for use in
federal criminal investigations. Therefore, any system of records,
such as general indices or the Criminal Law Enforcement Application
CLEA!, which is accessible by the general FBI population for civil or
other noncriminal purposes, is not a,suitable repository for business
records or information, including telephone data, subpoenaed by a
federal grand jury. See 2-9.7.!
' c! Except for the information described in b!
above, both grand jury subpoenaed documents and the information
extracted from them may be memorialized only in databases or other
systems of records_that are accessible only by those assisting the
attorney for the government in the specific criminal investigation to
which the documents or information re1ate.|
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2-9.5.2 [Physical Evidence and Statements _ _
Physical evidence and statements of witnesses may be
matters occurring before the grand jury:|
' ! |Physical evidence provided pursuant to or as a result
of grand jury process is a matter occurring before the grand jury
whether or not such evidence is presented to the grand jury. Physical
evidence provided voluntarily not pursuant to or in lieu of a grand
jury subpoena! is not a grand jury matter irrespective of whether such
e2iQsn;srwas_P;s2i,tslyuQrlisuthsrsatsrmprsssntedntanthersranéujurylou
! |Statements of witnesses obtained pursuant to, or as a
result of, grand jury process are matters occurring before the grand
jury irrespective of whether such witnesses testified before the grand
jury or are not required to testify. Voluntary statements of
witnesses made outside of the grand jury context not pursuant to or
in lieu of a grand jury subpoena! are not grand jury matters
irrespective of whether the witness previously testified or will
thereafter testify before the grand jury.|
EFFECTIVE: 07/12/95
2-9.6 |Documentation of Disclosures of Grand Jury Material
Rule 6 e! ! B! requires that when a federal prosecutor
makes a disclosure of grand jury material to government investigators
and other persons supporting the grand jury investigation, he/she must
promptly provide the district court, before whom was impaneled the
grand jury whose material has been so disclosed, with the names of the
persons to whom such disclosure has been made, and centify that he/she
has advised such persons of their obligation of secrecy under the
Rule. In order to document the certification required by the Rule,
government attorneys often execute and deliver to the court a form,
normally referred to as a "Certification" or "Rule 6 e! letter." A
copy of this document should accompany grand jury material in the
FBI's custody. . i
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Part II- .. , PAGE Z - 18
EFFECTIVE: O7/12/95
2-9.6.1 Documentation of Internal Disclosures of Grand Jury
Material
Practical considerations often require Agents assisting
government attorneys to seek additional assistance in the SAME
investigation from others within the FBI. In many districts, support
_ __ , .' _ W _.,_ _ ________ M _°"t1 _ H
included in the list provided to the court. In lieu of a Rule 6 e!
_/-11..-i letter from the U.S. Attorney's Office USAO! containing an
exhaustive list of names of FBI personnel, an FBI record of additional
internal disclosures is to be maintained by the case Agent in order to
establish accountability. Use of this "internal certification"
procedure should be authorized by the appropriate USAO. The internal
form should record the date of disclosure as well as the identity and
position of the recipient. Such internal disclosures, of course, may
be made only in support of the same investigation in which a federal
prosecutor has previously issued a Rule 6 e! letter. In addition, the
internal record should reflect that all recipients of grand jury
materials were advised of the secrecy requirements of Rule 6 e!.
Whenever practicable, recipients should be listed prior to -disclosure.| i I
EFFECTIVE:'07/12/95
2-9.7 Storage of Grand Jury Material See MIOG, Part II,
236.6.5; MAOP, Part II, 9-9.!
As detailed above in HIOG, Part II, 2-9.3.through 2-9.5,
the grand jury rule of secrecy requires that the FBI cannot make or
allow unauthorized disclosure of grand jury material. Material and
records obtained pursuant to the grand jury process frequently are
stored in FBI space. Unauthorized disclosures of grand jury material
entrusted to FBI personnel should be reported to the appropriate
government attorney, who must, in turn,-notify the court. In order to
protect against unauthorized disclosure, grand jury material must be
secured in the following manner:
! It must be marked with the following warning: "GRAND
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Part 11 - - -' _ PAGE 2 -
JURY MATERIAL - DISSEMINATE 0111.? PURSUANT T0 RULE 6 e!." R
Z! Access to grand jury material must be limited to
authorized persons, i.e., those assisting an attorney for the '
government in a specific criminal investigation see MIOG, Part II,
2-9.5!, and when not in use must be placed in a subfile which is
locked in a container with a combination lock, the combination of
which is known only by such authorized persons. The combinations are
to be changed annually. Absent chain-of-custody considerations,
subfiles need not be kept in an evidence or bulky exhibit room, and
may be entrusted to an Information Management Assistant or Evidence
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~ certification list. See HAOP, Part II, 2-4.4.4, 24.4.16, and 2- -
5.1.! "
! FD-302s and other internal documents that contain
. grand jury information must be prepared on removable diskettes that
are placed in secure storage when not in use. The hard copies must be
kept in the grand jury subfile. See MAOP, Part II, 10*13.8;
Correspondence Guide-Field, 2-11.4.10.! _ ' ii; V ! Documents containing grand jury information cannot be
R placed in manual or automated record systems that can be accessed by
I persons who are not on the disclosure list. A nondisclosure warning_
on the documents, or an electronic tagging warning, is not sufficient
protection for grand jury information. Such information must be kept
only in files to which access is properly restricted. See MIOG, Part
II, 2-9.5.1.!
! Transmittal to other field offices of documents
containing grand jury material must be by registered mail or other
traceable courier such asFederal Express[approved by the Security ,
Programs Manager!. Couriers and other personnel employed in these
services will be unaware of the contents of the material transmitted
due to the wrapping procedures specified below; and therefore, do not
require a background investigation for this purpose.|¢The names of
persons who transport the
.list, but the lead office
| originating office with a
R office to whom disclosurematerial need not be placed on a disclosure
must provide the case Agent in the
list of the names of|personnel|in the lead
is made. Those names are to be added to the
internal certification list at the originating office.
_ ! |Grand jury
1*_",I=:;é I1. 2-.T!I'5" --'-.*;:;v contains the addresses of
R IT-»>|~"f-, _=material which is to be transmitted
outside a facility shall be enclosed in opaque inner and outer
covers. The inner cover shall be a sealed wrapper or envelope which
the sender andthe addressee authorized
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Manual of Investigative Operations and Guidelines
fart II p _ PAGE 2 * 20 ' :i..'
conspicuously marked "Grand Jury Information To Be
Addressee Only." The outer cover shall be sealed,
addressed and bear no indication that the envelope
jury material. When the size, weight or nature of
strength and durability to protect the information
disclosure or accidental_exposure. .
his or her designated representative. i
. -3.:
92 originating the information.l access to the grand jury material. The inner cover shall be
Opened By
addressed, return
contains grand
the grand jury
material precludes.the use of envelopes or_standard packaging, the
material used for packaging or covering shall be of sufficient
from unauthorized
l ! When the government attorney, in consultation with
the Security Programs Manager_£§Rm! determines the greater _ __ _ __ __ _ ____ _I .-
8! Grand jury material containing classified national
security information must be handled, processed and stored in
accordance with Title 28, Code of Federal Regulations, Part 17.
Grand jury material containing other types of sensitive information
such as federal tax return information, witness security information
~ and other types of highly sensitive information that have more
stringent security requirements shall be stored and protected
pursuant to the security regulations governing such information and
' special security instructions provided by the organization
1 | 9!| Original documents that were obtained through the
grand jury process should be returned to the attorney for the
government or, with the government attorney's permission, to the owner
if there is no indictment or the prosecution has concluded see MAOP,
Part 11, 2-4.4.4 and 2-4.4.16!. _
EFFECTIVE: 04/29/91
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1 secure transmission method, the material may be transmitted by: U.S
Postal Service registered mail, return receipt requested; an express
mail service, approved for the transmission of national security
information; or hand carried by the cognizant government attorney or1
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Manual of Investigative Operations and GuidelinesPart II - . - p, _ _ .- PAGE 2
2-9.8
of the grand jury to utilize the grand jury as an investigative aid inRequests for Subpoenas in Fugitive Investigations
The Department of Justice has advised that it is a misuse
the search for a fugitive in whose testimony the grand jury has no
interest. Therefore, grand jury subpoenas for witnesses or records
should not be requested in FBI fugitive investigations. There are,
however, limited situations in which courts have recognized that grand
jury efforts to locate a fugitive are proper. These situations are
described below.
! ThQ_use_of_gtand_juty_pr9cess_to_locate_a_fugitive_is
proper when the grand jury is interested in hearing the fugitive's
testimony. "Thus if the grand jury seeks the testimony of the fugitive
in the investigation of Federal criminal violations before it, it may
subpoena
fugitive
not be a
location
subpoenaother witnesses and records in an effort to locate the
witness. However, interest in the fugitive's testimony must
pretext. The sole motive for inquiring into the fugitive's
must be the potential value of fugitives testimony. A
for the fugitive witness must be approved by the grand jury
before seeking to subpoena witnesses or records to locate the
fugitive. Further, it is not proper to seek to obtain grand jury
testimony from any witness, including a fugitive, concerning an
already returned indictment. Thus it would not be proper to seek to
locate a fugitive for the purpose of having fugitive testify about
matters for which an indictment has already been returned, unless
there are additional unindicted defendants to be discovered or
additional criminal acts to be investigated through the testimony of
the fugitive. Current policy on "target" witnesses must be observed.
Grand jury subpoenas for witnesses and records aimed at locating a
fugitive witness who is a target of the grand jury investigation will
be approved only where a target subpoena already has been approved by
the responsible Assistant Attorney General.
! Use of the grand jury to learn the present location
of a fugitive is proper when present location is an ehement of the
offense under investigation. On adequate facts, the present location
of a fugitive might tend to establish that another person is harboring
fugitive, or has committed_misprision, or is an accessory after the
fact in the present concealment of the fugitive. However, this
justification could be viewed as a subterfuge if the suspected
harborer or the person potentially guilty of misprision or as_an
accessory were given immunity in the grand jury in order to compel
his/her testimony about the location of the fugitive. In order to
ensure the proper use of investigations for harboring, misprision, and
accessory after the fact based on acts of concealment, the U.S
_ S§nsitive* _
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Manual of Investigative Operations and Guidelines
Part II ' CPAGE 2 - 22
Attorneys must consult with the Department of Justice prior to 92
initiating grand jury investigations for these offenses. with regard
to escaped Federal prisoner and bond default matters, the present
location of a fugitive is not relevant evidence in a grand jury
investigation as these offenses address the circumstances of a prior
rdeparture from a known location. The fugitive's present location is
not a relevant factor as it is in harboring or misprision
investigations. Inasmuch as unlawful flight to avoid prosecution
cases are, as a rule,
written authorization
Attorney General, any
_ ____ -MDepartment of Justiceinvestigationéofgsuchvnot prosecuted and cannot be prosecuted without
from the Attorney General or an Assistant
effort to use the grand jury in the -
Cc a.s.e_s_.s.b.a .l._1___b.e._ 1=;:e.<:.e_cl§d._bY..&.v!1s14l tat i<>a-!.=_iJI_13_!I_11s>__ __
and by written authorization to prosecute from
the Assistant Attorney General in charge of the Criminal Division.
EFFECTIVE: O8/21/87
-v-F175;
EFFECTIVE: oa/21/s12 10 INDICTMENT AND INFORMATION RULE 7!
2-10.1 Definitions
An indictment is a written accusation against one or more
I persons of a crime presented to and|proferred|upon oath or examination
by a grand jury legally convoked. An information is an accusation, in
the nature of an indictment, filed by a USA supported by oath or
affirmation showing probable cause
EFFECTIVE: O2/11/97 J
2-10.2 Nature of Crime
' Any capital offense must be prosecuted by indictment. A
felony is also prosecuted by indictment unless indictment is waived in
which case it may be prosecuted by information. Any other offense may
. 'be prosecuted by indictment or by information. p
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Manual of Investi§ative_Operations and Guidelines
Part II ' . " _ PAGE 2
" EFFECTIVE: 08/21/87
2-10.3 Waiver of Indictment
A felony may be prosecuted bv information if the
defendant, after he/she has been advised of the nature of the charge
and of his/her rights, waives in open court prosecution by indictment.-23v1 ;-
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2lO.4 .Advice by Agents
A11 Agents should advise persons whom they arrest of the
provisions of the_preceding paragraph Rule 7b, FED.R.CRIM.P.!, after
the defendant has indicated his/her guilt and has signed a confession.
8?; |If a defendant indicates a desire to waive an indictment, that desire ::g§ should be promptly.brought to the attention of the responsible
A Assistant United States Attorney AUSA!. The Agent should record both
the defendant's intent to waive indictment and the fact the AUSA was
advised_in a memorandum to the investigative file and in the '
prosecutive status portion of the prosecutive report.
EFFECTIVE: 10/22/84
I 2-10.5 |De1eted| A
EFFECTIVE: 10/22/84
- I
2-11 ARREST IN DISTRICT ornsn THAN DISTRICT or PROSECUTION
- RULE 20; RULE 40! .
/
EFFECTIVE: 10/22/84
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2-11.1 A Place of Arrest _
~ I I - An offender who has committed a Federal violation in one
judicial district district of prosecution! may be located and
arrested in a different judicial district district of asylum!.
EFFECTIVE: 10/22/34
i 2-11.2 Disposition in District Asylum
, ' Under certain conditions, the prosecution may proceed in
' the district of asylum. Rule 20!;
EFFECTIVE: 10/22/84
Z-11.2.1 Where Indictment or Information Pending'1].-I?. '1
A defendant arrested, held, or present in a district other
than that in which an indictment or information is pending against
him/her may state in writing that he/she wishes to plead guilty or
nolo contendere, to waive trial in the district in which the
indictment or information is pending, and to consent to disposition of
the case in the district in which he/she was arrested, held, or
present, subject to the approval of the USA for each district. Upon
receipt of the defendant's statement and of written approval of the
USAs the clerk of the court in which the indictment or information is
pending shall transmit the papers in the proceeding or certified
copies thereof to the clerk of the court for the district in which the
defendant was arrested, held, or present, and the prosecution shall
continue in that district. .
EFFECTIVE: 10/22/84
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2~l1.2.2 Where Indictment or Information Not Pending
A defendant arrested, held, or present in a district other
than the district in which a complaint is pending against him/her may
state in writing that he/she wishes to plead guilty or nolo
contendere, to waive trial in the district in which the warrant was
issued, and to consent to disposition of the case in the district in
which he/she was arrested, held, or present, subject to the approval
of the USA for each district. Upon receipt of the defendant's
statement and of written approval of the USAs and upon the filing of
an information or the return of an indictment, the clerk of the court
for_district_in_which_the_warrant waspissuedéshall_transmit_thempapers
in the proceeding or certified copies thereof to the clerk of the
court for the district in which the defendant was arrested, held, or
present, and the prosecution shall continue in that district. When
the defendant is brought before the court to plead to an information
filed in the district where the warrant was issued, he/she may at that
time waive indictment as provided in Rule 7, and the prosecution may
continue based upon the information originally filed.
EFFECTIVE: 10/22/84
2-11.3 Commitment to Another District Rule 40!
The following procedures apply|as to a person arrested in
a district other than that in which the prosecution is pending, when
the prosecution is to proceed in the district where the prosecution
is pending.| _
! Prompt Appearance - A person arrested in a district
other than the district of prosecution shall be taken without
unnecessary delay before the nearest available federal magistrate.
! Preliminary Proceedings - Preliminary proceedings
shall be conducted in accordance with Rules 5 and 5.1, FED.R.CRIH.P.
The magistrate shall advise the accused of those rights specified in
Rule 5 see paragraph 2-7.3, supra! and of the provisions of Rule 20
see paragraph 2ll.2, supra!.
! Accused Held to Answer - The accused shall be held to
answer if, from the evidence produced during the preliminary
examination, the magistrate determines there is probable cause; or, if
no preliminary examination is held, because an indictment has been
returned or an information filed see paragraph_2-7.4, supra! or
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because the accused elects to have the preliminary examination
conducted in the district of prosecution, the accused shall be held to
answer upon a finding that he/she is the person named in the
information, indictment, or warrant.
1 ! Production of Warrant If the accused is held to
answer, he/she shall be held to answer in the district court in which
prosecution is pending, upon production of a warrant or a certified
copy thereof. . - '
! Transmittal of Papers In connection with the above
P£9¢se4insa._ss9£§ré2lthsrdisixistrqirprssscutiourshould imse§i§£2}1__-
request the United States Marshal to forward certified copies of the
necessary papers to the USA in the district where the arrest occurred
and should so notify the USA in the district of prosecution. These
documents, however, should not be transmitted through Bureau field
offices.
! Notification - When the papers described in the
preceding paragraph have been forwarded, the SAC in the district of
prosecution will immediately notify the office covering the district
of asylum.
EFFECTIVE: OZ/14/97
||2-11.3.1 Arrest of Probationer
If a person is arrested for a probation violation in a
district other than the district of supervision, he/she shall be taken
without unnecessary delay before the nearest available Federal
magistrate. The magistrate shall order the probationer held to answer
in the district court of the district having probation supervision
upon production of certified copies of the probation order, the
warrant, and the application for the warrant, and upon a finding that
the person arrested is the person named in the warrant.|
EFFECTIVE: 02/08/so
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2-1l.3.2 Failure to Appear
Whenever a warrant is issued because of the failure of the
person named therein to appear as required pursuant to a subpoena or
the terms of release, and the person is arrested in a district other
than that in which the warrant was issued, the person arrested shall
be taken before the nearest available Federal magistrate without
unnecessary delay. Upon production of the warrant or a certified copy
thereof, and upon a finding that the person arrested is the person
named in the warrant, the magistrate shall hold the person to answer
in the district in which the warrant issued.|
EFFECTIVE: O2/U8/80
Z-11.4 Custody of Prisoners in a District of Asylum
EFFECTIVE: 10/25/89
2~1l.4.1 Custody by U.S. Marshal
Upon written request of an SA, the U.S. Marshal in the
district of asylum is authorized to take custody of a prisoner even
though U.S. Marshal has not received the warrant or other court papers
from the district of prosecution. U.S. Marshal is likewise authorized
to take the accused before the nearest available Federal magistrate
for commitment to jail, pending receipt of the necessary papers. The
written request to the Marshal is to be signed by the SA, and will
include the name of the person arrested, the Federal charge upon which
subject is being held, the district in which prosecution is pending,
and a statement as to whether or not directions have been given for
the forwarding of the warrant to the Marshal having custody of the
prisoner. _ I
EFFECTIVE: 10/25/89
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2-11.4.2 Use of Form FD35l
Form FD-351 may he used to request the Marshal to assume
custody of a prisoner. Since the form also provides space for details
of the process issued, a copy of the FD-351 may be sent to the USA and
the USH for information and necessary action.
EFFECTIVE: 10/25/89
-_--~-_ -2-11.4.3--M-Marsha1~Unab1eWto Assume Custody __W~_@~vWsv ~~-as1 ,~w-Wises, as e asses
If, due to emergency circumstances, the Marshal is unable
to comply with a request to assume custody, the SA should maintain
custody and if circumstances dictate, provide the necessary
transportation and ensure initial appearance of the prisoner before
the magistrate.
i§* EFFECTIVE: 10/25/89
2-12 FUGITIVES LOCATED IN FOREIGN COUNTRIES; EXTRADITION'
EFFECTIVE: 10/25/89 .
2-12.1 Notification to USA
|As soon as it appears likely that a fugitive may be
located in a foreign country, you should-notify the prosecutor, either
the U.S. Attorney or the local prosecutor in unlawful flight cases,
that he or she should contact the Office ofInternational Affairs
OIA!, Criminal Division, U.S. Department of Justice, promptly. In
addition, as soon as such an arrest appears likely, you are to notify
the substantive division at FBIHQ,'with copy to the Office of Liaison
and International Affairs, so that FBIHQ may notify OIA.|
EFFECTIVE: 10/25/89
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212.2 Request for Arrest and Extradition
FBI employees have no authority to request foreign s
officials to arrest and extradite fugitives who are wanted for
violations of the laws of the United States. Requests for the arrest
and extradition of such fugitives must be forwarded to the Attorney
General by the USA in whose district the prosecution is pending.
- Departmental regulations require the USAs to furnish the Attorney
General with certain information and certified papers for use in
effecting the arrest and extradition of foreign fugitives.
EFFECTIVE?_lO725789__ m "i" " " " "WY ' iiiimzmwiiiiimun? _ _m ____m____;_
i2-12.3 Information Furnished the USA
FBI employees should be prepared to furnish certain
information to the USA in order for USA to institute the formal stepsE-Te necessary to extradite a fugitive from a foreign country. Information§ which the USA may require includes:_ '
! Evidence that an arrest warrant, if one is
outstanding, cannot be executed in the United States because of the
flight of the accused to a known locality in a foreign country;
! Evidence for presentation to the surrendering
government sufficient to make out a strong case against the accused,
such a case as would justify the committal of the accused under the
laws of the United States; -
! 'Fu1l name of the accused, together with any assumed
names; -
! Physical description of the accused;
»1
! Place and address in the foreign country where the -
accused can be found; _ - A
! Date of indictment, if an indictment has been filed;
! Description of the offense or offenses charged;
8! Date of the commission of the offense and the placeEgg? where committed.
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EFFECTIVE: 10/25/89,? _
2-12.4 Investigations to Locate Fugitives
FBI employees who are conducting investigations as to the
whereabouts of fugitives in foreign countries have no authority toemploy attorneys or other persons to represent the United States and
interested officials and attorneys of a foreign country should be
informed to this effect. .92..
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2*l2.5 Deportation Proceedings -
In deportation proceedings FBI employees should consult
the USA in whose district the prosecution is pending and the USA into
whose jurisdiction the subject would be deported before making
official allegations in the foreign country alleging that the fugitive
is an alien_to that country, a citizen of the United States, and a
person who should be deported._ Employees also should consult the
-nearest American consul stationed in the foreign country and keep him
advised of developments-in any deportation proceedings.
EFFECTIVE: 01/31/78
212.6 Evidence of Fugitive's Citizenship
In all cases in which the apprehension of a fugitive is
desired in a foreign country, FBI employees should collect and forward
to the appropriate USA evidence of the citizenship of*the person whose
arrest is desired. Naturalization papers and birth or baptismal -
certificates duly notarized or certified by the proper authorities
constitute_evidence of citizenship._
EFFECTIVE: 01/31/78
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Part II PAGE 3 -
SECTION 3. ADMISSIBILITY OF EVIDENCE IN CRIMINAL CASES
3-1 INTRODUCTION
! The Federal Rules of Evidence FED.R{EVID.!,|a uniform
code of evidence approved by the Supreme Court and enacted into law by
Congress, with amendments, govern proceedings in the Federal courts and
before U.S. Magistrates in criminal and civil cases. There are 62 Rules_
set_forth_underm1l_main Articles,__Statemrules4of+eyidence_hage no o_¢-7332;
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application at Federal criminal trials.
' ! Except for a general rule on privileges which applies
to all stages of a case, the Rules do not apply to such proceedings as
the issuance of arrest warrants, search warrants, or criminal summonses;
preliminary examinations; grand jury proceedings; or bail, sentencing,
probation, and extradition proceedings.
! The Rules do not incorporate principles of the Fourth,
Fifth, and Sixth Amendments to the Constitution, and the judicial
interpretation thereof, affecting the admissibility of evidence obtained
by Special Agents through means such as search and seizure, interrogation
of persons in custody, and eyewitness identification procedures.
Errscrlvs: 08/16/82
3'2 NECESSITY FOR RULES OF EVIDENCE
In our adversary trial system, the issues in a case are
decided on facts presented to the jury. When a defendant is charged witha crime, the facts injissue are ! the elements of the statute as i
alleged in the indictment and denied by|his/her|p1ea of not guilty, and
! the facts which Ihe/she|may allege in defense denied by the
prosecution. All matters of law are decided by the judge, e.g., whether
an item of evidence is.admissible, and all matters of fact are_decided
by the jury, e.g., what weight and credibility is to be given to the
evidence.* The judge also decides facts upon which the admissibility of
evidence may depend e§g., whether a witness whose former testimony is
offered in evidence is "unavailable" under the formertestimony exception
to the hearsay rule. §The judge is not limited by the rules of evidence
in passing upon such preliminary questions, Every element necessary to
constitute the crime charged against the defendant must be proved beyond
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a reasonable doubt.
EFFECTIVE: 08/16/32
3'3 RELEVANCY
! The fundamental principle of the law of evidence is that
of relevancy. "Relevant evidence" means evidence having any tendency to
make the existence of any fact that is of consequence to the '
be without the evidence.
! All relevant evidence is admissible except as otherwise
provided by: a! the Constitution, e.g., the search and seizure
exclusionary rule based on the Fourth Amendment; b! Act of Congress,
I e.g.,|Title 67, USC, Section 605|dealing with interception of wire or
radio communications; c! other rules prescribed by the Supreme Court,
e.g., the "Mallory Rule" excluding statements elicited during detention
in violation of Rule 5 a! of the Federal Rules of Criminal
Procedurel FED.R.CRIM.P.!;land d! the]FED.R.EVID.|/"bi.-.'_'.
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! The test to be applied in determining the relevancy of
an item of evidence is its connection.by reason of logic, experience, or
science with the Eacts92to be proved in the case. Evidence showing the
defendant's motive, preparation, opportunity to commit a particular
| crime, or|his/her|threats to the victim of the crime, or attempts to
destroy incriminating evidence is relevant. A fact not immediately
felevant to the facts in issue may become so, e.g., a prior inconsistent
statement affecting the credibility of a witness.
h! The principle of relevancy emphasizes the need during
investigation of a clear understanding of the elements of the crime
involved. Agents should.deve1op all evidence which can reasonably be
obtained to prove such elements. This is necessary since the FBI has the
responsibility of furnishing the USA or the Department of Justice all
evidence bearing on any contemplated prosecution. The defense that may
be interposed by the defendant is generally not known in advance.
! Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
C considerations of undue delay, waste of time, or needless presentation4:52? of cumulative evidence. ~
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! Evidence of a person's character or a trait of|his/her|
character is not admissible for the purpose of proving that|he/she|acted
in conformity therewith on a particular occasion, except:
a! Evidence of a pertinent trait of|his/herlcharacter
offered by an accused, or by the prosecution to rebut the same.
b! Evidence of a pertinent
victim of the crime offered by an accused, or
the same, or evidence of a character trait of
offered by the prosecution in a homicide casetrait_of character of the
by the prosecution to rebut-
peacefulness of the victim
to rebut evidence that theH
9
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__mmnm_victim_wasithe_first_aggressorn____
c! Evidence of the character of a witness for
truthfulness or untruthfulness to attack or support[his/her|credibility.
l! Evidence of other crimes is not admissible to prove the
character of a person in order to show that|he/shelacted in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, know1edge,'
identity, or absence of mistake or accident.
! In all cases in which evidence of character or a trait
of character of a person is admissible, proof may be made by testimony
as to reputation or by testimony in the form_of an opinion. On
cross-examination, inquiry is allowable into relevant specific instances
of conduct. In cases in which character or a
person is an essential element of a charge or
made of specific instances of|his/her|conducttrait of character of a
defense, proof may also be
9! Evidence of the habit of_a person or the routine
practice of an organization, whether corroborated or not and regardless
of the presence of eyewitnesses, is relevant to prove that the conduct
of the person or organization on a particular
with the habit or routine practice.
EFFECTIVE: 08/16/82
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l V -
3'4 GENERAL T¥PES OF EVIDENCE I
Evidence may be classified in several ways} e.g., according
to its form, or according to the way it tends to prove a fact.
!
documentary, orAccording to its form, evidence is testimonial,
consists of thereal. Testimonial evidence, the most common type,
oral assertions of witnesses. Documentary evidence -
consists of the words, figures, or other symbols conveying information
set down on a writing, recording, or photograph. Real evidence consists
of tangible things involved in a case, such as physical objects or
substances-__ sE ~'~J
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! According to the way it tends to prove a fact,92evidence
is either direct or circumstantial. It is direct when it immediately
establishes the very fact to be proved. It is circumstantial when it
establishes other facts so relevant to the fact to be proved that they
support an inference of its existence. Thus, if a defendant is charged
with murder on a Government reservation and a witness testifies that
he/she saw the defendant stab the victim, the evidence is direct. If a
witness testifies that he/she saw the defendant running from the scene
of the stabbing, or that he/she had seen the defendant purchase a knife
of the kind used in the killing the day before the crime, the evidence
is circumstantial. In an ITSMV case, the testimony of the owner-of an
automobile that he/she saw the defendant_steal his/her car is direct
evidence as it establishes the theft of the car which is an element of
the statute. If a used car dealer testifies that the defendant tried to
sell this car to him/her at a low price, the evidence is circumstantial.
! Direct and circumstantial evidence are equally
admissible. Circumstantial evidence may present problems of relevancy
where direct evidencewdoes not, but circumstantial evidence is not
inferior to direct evidence and may be more persuasive than it.
l .
EFFECTIVE: 08/16/32 .
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3-5 JUDICIAL NOTICE
Commerce National Heather Service. In a criminal case, the court
is§£5v¢ts_£hs_j35v the .'m.. .. Y is " .mim ._ Pt a
conclusive any facts judicially noticed.rl . .
! Judicial notice is the process by which a court accepts
a relevant fact as true without evidence thereof. A judicially noticed
fact must be a fact which is not subject to reasonable dispute in that
it is either a! generally known within the territorial jurisdiction of
the trial court or b!'capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned. An
example of judicially noticed fact would be: the time of sunset on a
certain date as determined by the records of the U.S. Department of '
I £t_maY;.PH§m _2£_£squ1rs9_£2i_?sss
! In investigations in which it appears pertinent to
establish facts as part of the case which may fall within this rule,
Agents should not assume that such facts need not be proven. Where facts
may fall within this rule, consideration should be given to discussing
with the USA the necessity for investigation. As to the taking of
judicial notice of matters of foreign law, see Rule 26.1 of
the|FED.R.CRIM.P.l
EFFECTIVE: 08/16/82
3-6
presumption
presumption
evidentiaryPRESUHPTIONSy
! A presumption is a standardized inference which permits,
but does not require,lthe jury to accept the existence of a presumed
fact, e.g., once a conspiracy is shown to exist, it is presumed to
continue until an affirmative act of termination. A presumption is not
evidence but a way of dealing with evidence. It acts to shift the burden
of producing evidence to the contrary to the party against whom it
operates. Congress has created various presumptions by statute to lessen
the burden of proof upon the prosecution. For example, the Selective
Service Act provides that it is unlawful to possess a draft card not
lawfully issued to the holder with intent to use it for the purpose of
false identification.§-It further provides that the possession of such
a card is deemed sufficient evidence to establish such an intent unless
the defendant explains his possession to the satisfaction of the jury.
Because of its relationship to the burden of proof, the
is potentially great. Generally, a statute
is constitutional if there is a natural and
relation, in accordance with the experienceimpact of a
creating a
rational
of mankind,t
sue
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EFFECTIVE: 08/16/B2
3-7 WITNESSES
EFFECTIVE: 06/15/a1
___wme4m_____._____et P 3-7.1 Com etency W
! In General " A witness is said to be competent
when|he/she|is qualified to testify under the law. The Rules contain a
broad general provision that every person is competent to be a witness
except as otherwise provided in the code. The only persons so
specifically designated as not being competent are a! the judge
presiding at the trial*and b! a member of the trial jury. By reason of
this broad general provision, the specific grounds of immaturity, mental
incapacity, religious belief, and conviction of crime on which persons
were disqualified as witnesses at common law are abolished. The common
law incompetency of the parties in a case, their spouses, and other
persons having an interest in the outcome of the trial are likewise
abolished. i
_ ! Requirement of Personal Knowledge - A witness may not
testify unless evidence is introduced sufficient to support a finding
that|he/she|has personal, i.e., firsthand knowledge of the matter.
Although a lay witnessmust have had an opportunity to observe, and must
have actually observed a matter, a witness testifying as an expert is
allowed to express opinions on facts made known tolhim/her|at or before
a hearing of which|he/she|does not have personal knowledge. The
crossrexamination
of|his/her|direct
Leading questions
witness except toof a witness is limited to the subject matter
examination and matters affecting|his/her| credibility
are not to be used on the direct examination of a
deve1op|his/her|testimony but ordinarily are permitted
on cross-examination.
! |The common law rule that one spouse is disqualified
from testifying against the other has been abolished. Today, a husband
or wife may testify for or against his or her spouse, so long as the
testifying party chooses to so testify. The abolition of this "adverse
spousal testimony" privilege_leaves undisturbed the right of a husband
or wife to prevent the testimonial disclosure of confidential
communications made in the privacy of the marital relationship the
1y .
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erations and Guidelines
infra.] a
dwriting of any
28,i§@.
nvestigative Op
l ' Section 3-3.3,
' d or proved han
to determine
son by statuteManual of I
" Part II
I husband-wife privilege!. See
! Handwriting * The admitte
person is admissible, for purposes of comparison,
genuineness of other handwriting attributed to such per
U.S.C. '
EFFECTIVE: 06/15/81
__________3;I,Z444A __ImpeachmentWof_Hitnesses We Jm __ _ ,,W_ _ _ _
T ! The credibility of a witness may be attacked by any
party, including the party calling him/her. Thus, the traditional rule
against impeaching one's own witness is abandoned under the Rules.
! The credibility of a witness may be attacked or
supported by evidence92in the form of reputation or opinion, but subject
Q to limitations. .The evidence may refer only to character for
truthfulness or untruthfulness, and evidence of truthful character is
sible only afterithe character of the witness for truthfulness has
ked by opinion or reputation, evidence or otherwise. p
' ic instances of the conduct of a witness for the
rting his/her credibility, other than
ved by extrinsic evidence. They may,
'f probative of truthfulness or
ation of the witness
thfulness, or
f anotherJ." admis
been attac
! Specif
purpose of attacking or suppo
conviction of crime, may not be pro
however, in the discretion of the court, i
untruthfulness, be inquired into on cross-examin
concerning his/her character for truthfulness or untru
concerning the character for truthfulness or untruthfulness 0
witness as to which character the witness being cross-examined has
testified. T ' T
Q! The giving of testimony, whether by an accused or by any
other witness, does not operate as a waiver of his/hen privilege against
se1fincrimination.when examined with respect to matters which relate
only to credibi1ity., ' .
' ! "For the purpose pr attacking the credibility of a
witness, evidence that he/she has been convicted of'a crime is
admissible, within limitations, if elicited from him/her or established
by public record during cross-examination, but only if the crime was
punishable as a felony and the court determines that the probative value
of admitting the evidence outweighs its prejudicial effect to the
v defendant, or if the crime involved dishonesty or false statement
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regardless of the punishment.
EFFECTIVE: O6/15/81
3r7.2.l ' Duty to Disclose Potential Impeachment Material Regarding
Government Employee/Witnesses _ -
! FBI Agents and other investigative personnel are
obligated to inform prosecutors with whom they work of potential
testimony in any criminal case.
! The failure of the prosecution to disclose evidence
favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution. BRADY v. MARYLAND,
373 U.S. 83 963!. Impeachment evidence, which is any evidence that
may impact on the credibility or reliability of a witness, can also be
BRADY material. GIGLIO v. UNITED STATES, 405 U.S. 83 972!.
Moreover, the failure of the defendant to request favorable evidence
does not leave the government free of obligation. UNITED STATES v.
AGURS, 427 U.S. 97 976!. Regardless of.the request, favorable
evidence is material, and constitutional error results from its
suppression by the government, "if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different." UNITED STATES v. BAGLEY,
473 U.S. 667 985!. Additionally, if the failure to disclose the
evidence "undermines confidence" in the verdict, it must be disclosed.
KYLES v. WHITLEY, 115 S.Ct. 1555, 1556 995!. The prosecutor has a
duty to learn of any favorable evidence known to others acting on the
government's behalf, including the police. Id. at 1567.
! When a federal prosecutor identifies an agency
employee as a potential witness or affiant in a specific criminal case
or investigation the employee must disclose potential impeachment
material known to them. This duty includes those instances when there
is no specific requestifrom the prosecutor.
! Generally, the term "potential impeachment material"
includes, but is not limited to, the following:
a! specific instances of conduct, or misconduct,
that may be used to question a witness's credibility or character for
truthfulness; b! evidence in-the form of opinion as to reputation
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impeachment information prior to providing a sworn statement-or -~e~ - ~~e~e»
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. < -
about a witness's character for truthfulness; c! prior inconsistent
statements; and d! information that may be used to suggest that a
witness is biased. -
' ! [Because the duty to learn of potential impeachment
material lies with the prosecution, a prosecutor may also request that
the employeewitness agency review the employee's personnel files
for potential impeachment information. When an individual prosecutor
determines that it is necessary to request potential impeachment
information from the employee-witness agency, the prosecutor should
notify the designatedirequesting official, who in turn is authorized
t 1:§q@£_pgt_snL 1 i11P_s=1s11I2s11t.-_i f 'mstwn._f_r1=._£Ps_s2Pl2vss- __,.91.
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witness agency official, the CDC.
a! Each U.S. Attorney's Office is required to
designate a requesting official to serve as point of contact to
receive potential impeachment information from agencies. Also the
requesting official is required to inform the agency official CDC!
of relevant case law_and court practices and rulings that govern the
definition and disclosure of impeachment information in that
district. .
b! The agency official within the FBI is the CDC
for the division in which the investigation or case is pending. In
certain instances outlined below, the Investigative Law Unit ILU! of
the Office of the General Counsel OGC! will be responsible for
conducting the reviewiof some personnel files in lieu of the CDC.
However, the CDC willlstill be responsible for disclosing the
information located by OGC to the requesting official/prosecutor.
! IFBI Plan for Review and Disclosure
a! All requests from a requesting
official/prosecutor for potential impeachment information should be
in writing, and should be directed to the CDC. Upon receiving a
request from the requesting official/prosecutor, the CDC should
ensure that all relevant personnel 7 classification! and/or
administrative files 63 classification and 66 classification! for
the employeerwitness are identified and reviewed to determine whetherthe files contain any+potential impeachment information.
b! All FBI employee-witness personnel and related
administrative files maintained in the field division where the
employee-witness is located should be reviewed. If the CDC is aware
of additional related files at FBIHQ or elsewhere, not maintained by
the field division, but which could contain potential impeachment
-- 192 - -
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Manual of Investigative Operations and Guidelines
Part II . _ 92 PAGE
information, the CDC should ensure that those files are also
reviewed.
c! When the employee-witness is located in a -
division other than where the investigation or case is pending, the
CDC should request that the CDC in that division conduct a review of
the employee-witness personnel files.
d! FBIHQ review of some emp1oyeewitness personnel
files will be required where the employee was previously assigned to
FBIHQ. The field division personnel files in that instance may only
_bQ5EL?§_Ql.§..§.iE'%_§l1£_SP1Pl9Y§§_Jl3§._§55 .is11ed__.t.o_ that_di_vi s iron ; n___.._
therefore, the bulk of that employee's personnel file may be
maintained at FBIHQ. Thus, where the employee-witness is located at
FBIHQ or has previously been assigned to FBIHQ, the CDC should
request that the employee*witness' personnel files be reviewed by.
FBIHQ. The ILU, OGC, will be responsible for conducting FBIHQ
reviews.|
! |When the CDC makes a request for FBIHQ to conduct a
review of an employee-witness personnel file, or requests a review
by a CDC in another division, the following information should be
included in the written request:
a! The full case name and/or docket number;
b! The name, address, telephone and facsimile
number of the requesting official;
c! The official Bureau name and Social Security
Account Number for each employee whose file is to be reviewed;
d! The results summary or documents with
appropriate redactions! of the file review conducted by the CDC, if
3nY§ .
-J
e! Any additional or specific requests provided by
the requesting official concerning the review;
f! Copies of any relevant court rules or orders
governing the request; and
g! Any additional facts or circumstances that might
be relevant to the requested review.
' 8! |After the review has been conducted, the CDC should
r
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Hanual of Investigative Operations and GuidelinesPart II PAGE 3 ll
notify the requesting official, in writing, that the review has been
conducted and should advise the requesting official of the folloving:
~ i a! Substantiated allegations - any finding of
misconduct that reflects upon the truthfulness or possible bias of
the employee, including a finding of lack of candor during an
administrative inquiry}
b! Criminal charges - any past or pending criminal
charge brought against the employee; p
l _ of _I§! Bending.invsstisatigasigr_allesationsi: any_______m,fii___M_____;__
credible allegation of misconduct that reflects upon the truthfulness
or possible bias of the employee that is the subject of a pending
- investigation; and
d! Unsubstantiated allegations ~ allegations that
are not credible, and allegations that have resulted in exoneration.
.92.,-1 result in the exoneration of an employeefwitness are rarely
,5 j: Allegations of misconduct that are not credible, cannot be proved, or
considered to be impeaching material. -However, the duty to learn of
potential impeachment material lies with the prosecutor, and the
prosecutor's ultimate burden is to ensure that all BRADY/GIGLIO
i material has been provided to the defendant. Therefore, the policy
i requires that such allegations that reflect.upon the truthfulness or
bias of the employee, to the extent maintained by the FBI, be
provided to the prosecutor under the following circumstances:
m - 1. When it is required by a court decision in
the district where the investigation or case is being pursued; n 92
92 2. When, on or after the effective date of this
, policy: ' _,
a. the allegation was made by a federal
prosecutor, magistrate judge, or judge; or
-" b._ the allegation received publicity;
3. When the requesting official and the agency
official agree that such disclosure is appropriate, based upon
. E exceptional circumstances involving the nature of the case or the
role of the agency witness; or
éggig { 4. When disclosure is otherwise deemed
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Manual of Investigative Operations and Guidelines
Part II . -. PAGE
appropriate by the agency.
NOTE: The CDC is required to advise the prosecuting office, to the
extent determined, whether any of the aforementioned allegations were
found to be unsubstantiated, not credible, or resulted in the
employee's exonerationl When there is uncertainty as to whether
information is of potential impeachment value, the CDC should consult
with the OGC. However, in general, such uncertainty should be ,
resolved in favor of disclosure to the requesting official.|
' 9! |A copy of any written allegation relating to
_IiI_e_=9Pl9y<-as _bygg I r.h~w . _ _ -
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12
a n F
a federal prosecutor or judge, or that receives publicity, should be
retained in order to comply with this po1icy._ If there is no
written allegation or information, the CDC should make a notation of
the information that comes to his/her attention in the appropriate
personnel or administrative file. _
0! |In order to ensure that special care is taken to
protect the confidentiality of unsubstantiated allegations and the
privacy interests and reputations of agency employee-witnesses, the
CDC should request that all information and documentation that was
not disclosed to the defense be expeditiously returned to the CDC.
Prosecuting offices, However, are permitted to keep motions,
responses, legal memoranda, court orders, and internal office
memoranda or correspondence, in the relevant criminal case file.[
ll! |In order to ensure that all disciplinary and related
information is reviewed, each CDC should develop and implement a plan
whereby the CDC.is notified in a timely manner of new or pending
disciplinary matters concerning employee-witnesses. The CDC in the
division where the investigation or case is pending is also
responsible for ascertaining and notifying the requesting official of
any additional information that becomes available until aprosecution
is conc1uded.| ' 1 1
2! Supervisory personnel should familiarize themselves
with any potential impeachment material in an employee's personnel
file and consider that information when making investigative
assignments that may result in that employee becoming an affiant or
testifying in court. J _
3! Hhen information or documentation is provided to a -
prosecutor, the prosecutor should share that information only on a
needrto-know basis with co-counsel or other appropriate supervisorypersonnel within the prosecutor's office. Before the information or
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Manual of Investigative Operations and GuidelinesPart II ' i PAGE 3 - 13
documentation is shared or provided to either a court or defense
counsel, the prosecuting attorney should be requested to promptly
.advise the CDC who provided the information of the prosecutor's intent
to disclose the information. Additionally, the CDC or other agency
officials communicating with the Assistant United States Attorney
-should make the employee aware of the decision to disclose information
from his or her personnel file.
4! Before disclosing an allegation that has not resulted
in a! a FINDING of misconduct reflecting upon the truthfulness or
possible bias of the employee, or b! a criminal charge against the
espl2yse.IthsrP:2ss§qL9r_§h9yls_bs_£ssssst29_ _§ss5_2n E§;EARI§ IN-5'1
to ,
CAMERA review and decision by the court regarding whether such
information must be disclosed to_defense counsel. Whenever such
information is released to the defense, the prosecuting attorney
should, unless clearly inappropriate, seek a protective order from the
court limiting the use and further dissemination of the information
and requiring the return of government documents reflecting the
information. ,
5! 1Deletedl
6! |Deleted|
EFFECTIVE: 02/21/97
3-7.3 Refreshing Memory of Witnesses
! Generally, the memory ofia witness may be refreshed
before trial or while he/she is on the stand at trial. If a witness uses
a writing to refresh his/her memory for the purpose of testifying either
while testifying or before testifying, if the court in its discretion
determines it is necessary in the interests of justice, an adverse party
is entitled to have the writing produced-at the hearing, to inspect it,
to cross-examine the witness thereon, and to introduce in evidence those .
portions which relate to the testimony of the witness. If it is claimed
that the writing contains matters not related to the subject matter of
the testimony, the court examines the writing in camera, excises anyportions not so related, and orders delivery of the remainder to the s
party entitled thereto. If the prosecution elects not to comply, the- court strikes the testimony or declares a mistrial. Thus, the production
of writings used by a witness while testifying is required; but it is
discretionary with the court as to whether writings used by a witness to
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Part II. PAGE 3
refresh his/her memory before trial will be produced.
! This rule is expressly made subject to Rule 17 h!,
FED.R.CRIM.P.,|and Rule 26.2,|FE.D.R.CRIM.P.,|and items falling within its
purview are producible only as provided by its terms. Rule 26.2,FED.R.CRIH.P.,Iappliesfto statements relevant to the testimony of all
witnesses in criminal cases and does not require that the statement be
consulted for purposes of refreshment before or while testifying; whereasthis evidentiary rule is not limited to statements relevant to witness
testimony, applies to all cases, and requires that the writing be
consulted for purposesof refreshment while or before testifying.
EFFECTIVE: O8/16/82
3"7.4 Prior Statements of Witnesses
! Generally, if a witness testifies to material facts at
a trial and has previously made a statement concerning such facts before
trial, he/she may be examined concerning them. The prior statement is
admissible to impeach his/her credibility when it is inconsistent with
his/her testimony, or to support his/her credibility, if attacked, when
the statement is consistent with his/her testimony. An attack upon the
credibility of a witness by proof that he/she has previously made
statements inconsistent with his/her present testimony is the most
frequently employed method of attack.
! In examining a witness concerning a prior statement made
by him/her, whether written or not, the statement need not be shown nor
its contentsdisc1osed to him/her at that time, but on request the same
is shown or disclosed to opposing counsel.
! Extrinsic evidence of
a witness is not admissible unless the
to explain or deny it and the opposite
to interrogate him/her thereon, or the
require; in other words, an impeaching
the witness before it can be proved by
EFFECTIVE: 03/16/82a prior inconsistent statement by
witness is afforded an opportunity
party is afforded an opportunity
interests of justice otherwise
statement must first be shown to
extrinsic evidence.
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investigation may be allowed to remain in court despite the fact. --. _ A 1- _
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Hanual of Investigative Operations and Guidelines 1Part II . . , ' l PAGE 3 ~ 15
3-7.5 I Court Witnesses and Exclusion of Witnesses _
' ! The court may call witnesses and interrogate them, and
all parties may cross-examine them. ' '
! At the request of a party the court orders witnesses
excluded so that they cannot hear the testimony of other witnesses. The
Rules, however, do not authorize exclusion of a party who is a natural
person, or a person whose presence is shown by a party to be essentialto the presentation ofhis/herlcase, or an officer or employee of a party
which is not a natural person designated as its representative by its
att2£n§yr"lt_hr bs§nrhe14_tha;rann9§_ er wh2_ha§rbes9_in_9ha;se siren
that he/she will be a witness
EFFECTIVE: 08/21/s7
<i;j; 3-8 PRIVILEGES
EFFECTIVE: 03/Z1/B7
3-3.1 In General,. . _2~--_. .__ 0_,_ _ _ _ _ _
_»'r I
4
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4:
! Under the general rule on privileges, the privilege of
a witness is governed by the principles of the common law as they may be
interpreted by Federal courts in the light of reason and experience,
except as otherwise required by the Constitution, Act of Congress, or
Supreme Court rules.
' ! At common law certain persons by virtue of their
relationship with a defendant cannot testify to confidential communications, either oral or written, obtained as a result of thisrelationship. The courts recognize the necessity for a free exchange of
information between such persons and protect the relationship throughadherence to the privilege_rule. Privilege under this rule means that
a witness cannot be forced to disclose any communication based on the
confidential relationship. A privilege ordinarily can be waived by the
person holding it. The following types of witnesses should be considered
A with respect to this rule. -
.¬¢¬Y?
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- 1
srrscrxvs: 08/21/87
3-8.2 Attorney and Client -
Communications either oral or written between an attorney and
client in the course of their professional relationship are considered
privileged, the privilege belonging to the client. The privilege
attaches only to communications needed to Obtain legal services. The
rule is designed to secure the client's freedom of mind in
committing92his/heriaffairs_to;the attorneyls_knowledge.__Thelclient_is_4Qm__
entitled to have the attorney honor the privilege even though the
relationship has ceased. Communications between an attorney and client
about a crime or fraud to be committed in the future are not privileged.
The privilege under this rule may be waived by the client alone althoughthe lawyer can claim the privilege on behalf of|his/herlclient. A
client's identity or occupation will not ordinarily qualify as
confidential information, but the privilege has been held to protect a
client's address from disclosure.
EFFECTIVE: 08/21/87
3-8.3 Husband and Wife
! Confidential communications, oral or written, between
husband and wife are considered privileged and cannot be disclosedthrough the testimony of either spouse in the absence of a waiver. For
example, a wife cannot be permitted to testify as to her husband'sperjury confessed to her by the husband in the confidence of their 8
marital relationship. All communications in private between spouses arepresumed to be confidential. Either spouse is precluded from disclosingsuch communications, the basis for the privilege being the protection of
marital confidence regarded as essential to this relationship. The onepossible exception to the rule is communications between husband and wife
relating to offenses against her, a wife being competent to testifyagainst her husband inisuch cases. The privilege generally extends onlyto confidential comunications, i.e., it_does not extend to acts which
would not have been performed but for the marital relationship.
! The legal relationship of husband and wife must exist
at the time of the communication and, thus, a communication made before
marriage, or after the marriage has terminated, is not privileged. Theprivilege of communications occurring during the marriage is not affected
1
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Hanual of Investigative Operations and GuidelinesPart II - . ' _ PAGE 3 -
by the death or divorce of either spouse. Comunications by eitherspouse in the presence of third persons not intended to be confidential
are not considered privileged.I
EFFECTIVE: U8/21/87
3-8.4 Informants - -
The identity of an informant is privileged. The Government
holds_thepriyilegegand,,generally,mis_notgrequired_to_discloselhis/herJ__
identity. The privilege is founded upon the public interest in effective
law enforcement. Citizens are to be encouraged to inform the Government
of crime. The privilege, however, is not absolute and the public
interest is balanced against the defendant's right to prepare|his/her|
defense and to a fair trial. For example, disclosure may be required
where the informant was a participant in the crime charged, or where the
defendant's participation was the result-of entrapment by the informant.
In situations where the court requires disclosure and Governmentwithholds, the court will dismiss the case. The privilege may arise notonly at trial but at a proceeding to determine probable cause, e.g., in
arrest and search situations. Where probable cause is established by
evidence apart from the informant's information, the court may or may not
require disclosure.
EFFECTIVE: 08/21/87
3-8.5 - FBI Files and Records
The files92and records of the,FBI and official information in
the possession of employees are considered privileged under Departmental0rder|9l9-80,|dated|l2/13/80,Iwhich prohibits the production ofisuchrecords, or the disclosure of information therefrom, or other official
information in possession of employees under subpoena duces tecum, order,
or otherwise without approval of an appropriate Department official or
the Attorney General.1 This regulation is based on statutory authoritycontained in|Tit1e925, USC, Section 301. D. 0.|919-8092set forth inHIOG, Part II,|Sectiop 6.!92 G _ '
r
EFFECTIVE: 08/21/81
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Hanual of Investigative Operations and GuidelinesPart II ¢'i* .. - PAGE 3 - 18
3-3.6 ' Other Privileges
- 'Host state courts byrstatute recognize a privilege as to .
communications between physician and patient, with exceptions, and also
as to communications between|a member of the clergyjand penitent. These
privileges did not exist at common law and have not been created by
Federal statute. However, Federal courts have recognized a privilege for
a confession-like statement to almember of the clergylwithout the
assistance of any statute. Several states, by statute, grant a privilegeto journalists to withhold their sources of information and also to
accountants, but these privileges have not been recognized by Federal
statuteli The First Amendment to the_Con§titution does not accord
HE
5- .@.¢aInewspersonja privilege against appearing before a grand jury and 7
answering questions aslto either the identity of|his/her|news source or
information|he/sheIreceived in confidence.
EFFECTIVE: 08/21/87
3-9 OPINIONS AND EXPERT TESTIMONY
! If a person is testifying as a lay witness and not as
an expert witness,Ihis/herltestimony in the form of opinions or
inferences is limited to those opinions or inferences which are a!
rationally based on his/her perception and b! helpful to a clear
understanding of-his/her testimony or the determination of a fact in
issue. Thus, an ordinary witness may express an opinion.provided it is
based upon his/her firsthand knowledge and is helpful in resolving
issues. The law prefers testimony to concrete rather than abstractfacts, and a detailed account to a broad assertion. Examples of opinions
which are generally allowed are: That a person appeared nervous,intoxicated, weak, orsick; as to what a person appeared to be doing; as
to a condition,"e.g., that a floor was slippery; handwriting; the speed
of a moving vehicle;and the value of,a person's own property.
92 ,
- ! If scientific, technical or other specialized knowledge
will assist the jury to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,experience, training, or education may testify thereto in the form of an
opinion or otherwise. . _ _ -
_ ! The facts or data upon which an expert bases his/heropinion or inference may be those perceived by or made known to him/her
at or before the hearing. If of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences upon the
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Hanual of Investigative Operations and Guidelines wPart II '- * 0 . - PAGE 3 - 19
subject, the facts or data need not be admissible in evidence.
! An expert witness may testify in terms of opinion or
inference and give his/her reasons therefor without prior disclosure of
the underlying facts or data, unless the court requires otherwise. The
expert may in any event be required to disclose the underlying facts ordata on cross-examination. I
! The court may on its own motion or on the motion of any
party enter an order to show cause why expert witnesses should not be
appointed by the court and may request the parties to submit nominations.
_An,ssp§r£mEiLness_is nQL_app9inte§_by_thsWs2urLtynls§§Whs[§hs_s9n§sn£§to act. He/She is subgect to cross-examination by each party, including
the party calling him/her as a witness. 8 1
EFFECTIVE: 08/21/87
3-10 HEARSAY
EFFECTIVE: 08/16/82
3rl0.1 In General
! Hearsay is simply defined as evidence based on something
a witness has heard someone else say rather than on whatlhe/she|has '
himself/herself|seen or experienced. Thus, if a witness testifies that
he/she|heard another person say "The defendant shot the victim," oriflhe/she| produces alletter so stating sent to|him/her|by that other
person, such evidence is hearsay. Technically, hearsay is defined as a
statement, other than one made by the declarant while testifying at a
trial or hearing, offered in evidence to prove the truth of the matter
asserted. A "statement" is defined as an oral or written assertion, or
nonverbal conduct of a person if it is intended by92him/her|as an
assertion. A "declarant" is defined as a person who makes a "statement.""
A declarant who makes an out-ofcourt statement is a witness and, thus,
must have had firsthand knowledge.
1
! The testimony of a witness is evaluated in termsof|his/her| perception, memory, narration, and sincerity.t Ideally, a j
witness is required to testify orally to the relevant facts of
which|he/she|has personal knowledge, under oath, confronting thedefendant, in the presence_of the jury with|his/her|demeanor under its
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scrutiny, and subject to cross-examination by the adversary party. The
general principle, therefore, is that hearsay evidence is not admissible.
In this regard the Rules provide that hearsay is not admissible except
as provided by the|FED.R.EVID. or by other rules prescribed by the
Supreme Court pursuant to statutory authority, e.g., Rule 4 a! of
the|FED.R.CRIH.P. on affidavits to show grounds for issuing warrants, or
by Act of Congress.
_ ! Despite the desirability of giving testimony under ideal
conditions, the law does not demand that they be attained in all
situations. Thus, while it excludes hearsay generally as it is
admitted1y_notAequal in quality towtestimonyof the declarant onmthe_A____ Mr__________W_
stand, rather than lose it completely it allows hearsay in under certain
circumstances believed,to give it some particular assurance of
credibility diminishing the risk of untrustworthiness and in the
interests of justice. T
! The Rules provide for two distinct classes of exceptions
to the hearsay rule. i _
a! The first class deals with situations where the
availability of the declarant is regarded as immaterial - the hearsay
statements in the 23 ihdividual exceptions within this class being deemed
to possess circumstantial guarantees of trustworthiness sufficient tojustify nonproduction of the declarant in person even though|he/she|may
be available.
b! The second class, which consists of 4 specific
exceptions deals with situations where the unavailability of the ,
declarant is made a condition to the admission of the hearsay statement.
Unavailability includes situations in which the declarant is unable to
be present or to testify because of death, physical or mental illness;
whenlhe/she|persists in refusing to testify despite a court order to do
so; whenlhe/she|is exempted on the ground of privilege; when|he/she|
testifies to a lack of memory; or when |he/she|is absent and the
proponent oflhis/her|statement is unable to procure|his/her|attendanceby process or other reasonable means, or in the case of statements under
belief of impending death, statements against interest, and statementsof personal or family,history|he/she|is unable to procureihis/her]
attendance or testimony, e.g., through deposition, by such means. A
declarant is not unavailable as a witness iflhis/her|exemption, refusal,
claim of lack of memory, inability or absence is due to the procurement
or wrongdoing of the proponent of|his/her92statement for the purpose of
preventing the witness from attending or testifying.
4
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EFFECTIVE: O8/16/82
3-10.2 Hearsay Exceptions Availability of Declarant Immaterial
EFFECTIVE: 08/16/82
3-10.2.1 Present Sense Impression I
CA statement describing or explaining an event or condition
made while the declarant was perceiving the event or condition, or
immediately thereafter.
EFFECTIVE: 08/16/32
3-10.2.2 Excited Utterance
_ A statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the
event or condition. >-
EFFECTIVE: 08/16/82
3-10.2.3 Then Existing Mental, Emotional, or Physical Condition
A statemedt of the dec1arants then existing state of mind,
emotion, sensation, or physical condition such as intent, plan, motive,
design, mental feeling, pain and bodily health!, but not including a
statement of memory or belief to prove the fact remembered or believed.
EFFECTIVE: 03/08/79
921
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3-10.2.4 Recorded Recollection '
A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to
enable|witness|to testify fully and accurately, shown to have been made
or adopted-by the witness when the-matter was fresh in|witness'|memory
and to reflect that knowledge correctly. If admitted, the memorandum or
record may be read into evidence but may not itself be received as an
exhibit unless offered by an adverse party. '
EFFECTIVE:_03/O8/19 A _ 4_ ___ _ ,_rq _____w4W__Jm_____ M ,4, _
3-10.2.5 Records of Regularly Conducted Activity
A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, or diagnosis, made at or near the time
by, or from information transmitted by, a person with knowledge, if kept
in the course of a regularly conducted business activity, and if it was
the regular practice of that business-activity to make the memorandum,
report, record, or data compilation, all as shown by the testimony of the
custodian or other qualified witness, unless the source of information
or the method or circumstances of preparation indicate lack of
trustworthiness. The term "business" as used in this paragraph includes
business, institution, association, profession, occupation, and callingof every kind, whether or not conducted for profit. 8 U.S.C. 1732!
Absence of entry in such records is admissible to prove the nonoccurrence
or nonexistence of such matters.
EFFECTIVE: 03/08/79
3-10.2.6 Financial Records of a Customer
i 0
Customers records in possession of a financial institution
broadly defined! may be obtained by the FBI only in accordance with the
provisions of the Right to Financial Privacy Act of 1978 or through the
issuance of a Federal Grand Jury subpoena. See MIOG, Part II, 23-6!|
EFFECTIVE: 03/08/79
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I13-10.2.7] Public Records and Reports
_ M Records, reports, statements, or data compilations, in any
form, of public offices or agencies, Federal or nonFederal, setting
- forth a! the activities of the office or agency, or b! matters observed
pursuant to duty imposed by law as to which matters there was a duty to
report, excluding, however, in criminal cases matters observed by police
officers and other lawnenforcement personnel, or c! in civil actions and -
proceedings and against the Government in criminal cases, factual .
findings, i.e., nonevaluative and nonopinion reports, resulting from an
investigation made pursuant to authority granted by law, unless the .
trustworthiness. Records of vital statistics in a public office are
admissible. The absence of a public record is also admissible.
EFFECTIVE: 03/08/79
iii; ||3-10.2.8| Judgment of Previous Conviction '1. _ ,.-_L-.
-.." Evidence of a final judgment, entered after a trial or upon
a plea of guilty but not upon a plea of nolo contenders!, adjudging a
person guilty of a crime punishable by death or imprisonment in excess
E of one year, to provelany fact essential-to sustain the judgment, but not ~
including, when offered by the Government in a criminal prosecution for
purposes other than impeachment, judgments against persons other than the
accused. .
EFFECTIVE: 03/08/79
" ||3-10.2.9] Reputation as to Character
I Reputation of a person's character among|his/her|associates
or in the community. I
EFFECTIVE: 03/08/79
'92
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Manual of Investigative Operations and GuidelinesPart 11 A 9 E E l PAGE 3 24
[[3-l0.2.10[ Miscellaneous
Records of religious organizations; marriage, baptismal, and
similar certificates; family records; records of documents affecting an
interest in property; ancient documents; market reports; learned 9
treatises; reputation concerning personal or family history; and others,
are likewise specifically made admissible under this class of exceptions.
EFFECTIVE: 03/0a/79
3-16.3 7 Hearsay fxceptions Declarant Unavailable r fj-
EFFECTIVE: 03/03/79
3-10.3.1 Former Testimony _<:l§. ' Testimony given as a witness at another hearing of the same
J or a different proceeding, or in a deposition taken in compliance withlaw in the course of the same or another proceeding, if the party against
. whom the testimony is now offered, or, in a civil action or proceeding,
a predecessor in interest, had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination.
EFFECTIVE: 03/08/79
3-10.3.2 Statement Under Belief of Impending Death .
i In a prosecution for homicide or in a civil action or
proceeding, a statement made by a declarant while believing
thatlhis/herldeath was imminent, concerning the cause=or circumstances
- of whatldeclarantlbeleved to be|his/her] impending death.
EFFECTIVE: 03/08/79
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3-10.3.3 Statement Against Interest _
A statement which was at the time of its making so far
contrary to the declarant's pecuniary or proprietary interest, or so far
tended to subject|dec1arant92to civil or criminal liability, or to render
invalid a claim by|declarant|against another, that a reasonable|person|in|that|position wouldjnot have made the statement un1ess|they|believedit to be true. A statement tending to expose the declarant to criminal '
liability and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the
statement. 'l924
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3-10.3.4 Statement of Personal or Family History
! A statement concerning the declarant's own birth,
adoption, marriage, divorce, legitimacy, relationship by blood, adoption,
or marriage, ancestry, or other similar fact of personal on family
history, even though declarant had no means of acquiring personal
knowledge of the matter stated; or ~
' ! A statement concerning the foregoing matters, and death
also, of another person, if the declarant was related to the other by
blood, adoption, or marriage or was so intimately associated with the
others family as-to be likely to have accurate information concerning
the matter declared.
EFFECTIVE:.03/08/79
3-10.4 Statements Which Are Not Hearsay
Prior statements by a witness and admissions by a
party-opponent are not considered to be hearsay under the Rules although"
they literally fall within_the definition of hearsay. -
EFFECTIVE: 08/21/87
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3-10.4.1 Prior Statement by Witness
! A statement is not hearsay if the declarant testifies V
at a trial or hearing and is subject to cross-examination concerning the
statement and the prior statement is inconsistent withjhis/her|testimony
and was given under oath subject to the penalty of perjury at a trial,
hearing, or other proceeding, or in a deposition. If the declarant
admits that|he/she|made the prior statement and that it was .
true,|he/she|adopts the statement. Iflhe/she|denies having made the
statement, or admits having made it but denies its truth, the prior
statement is admissible as substantive evidence.26 .
! Thus,in keeping with the modern view of the hearsay
rule, when a witness testifies to material facts and the opponent can
prove that the witness*has previously made statements under oath
inconsistent with|his/herlpresent testimony, the previous statements are
admissible as substantive evidence.
! Also, a statement is not hearsay if the declarant
testifies at the trial or hearing and is subject to cross-examinationconcerning the statement, and the statement is consistent with|his/herl
testimony and is offered to rebut an express or implied chargeagainst|him/her|of recent fabrication or improper influence or motive.
Prior consistent statements traditionally have been admissible to rebut
such a charge, but under this rule are substantive evidence.
EFFECTIVE: 08/21/87
3-10.4.2 Admission by Party-Opponent _
! Generally, an admission is a statement by a party of the
existence of a fact relevant to the case but inconsistent with the
position the party takes at the time of trial. The Rules provide, in q
part, that a statement is not hearsay if the statement is offered against
a party and is a!|his/her|own statement, the classic example of an
admission, or b! a statement of whichlhe/she|manifested|his/her|adoption
or belief in its truth, or. c! a statement by a coconspirator of a partyduring the course and in furtherance of the conspiracy, or| d! a '
statement by a personlauthorized by the party to make a statement
concerning the subject, or e! a statement by the party's agent or
servant concerning a matter within the scope of his/her agency or
employment, made during the existence of the relationship.92
! No guarantee of trustworthiness is required in the C858
l
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Hanual of Investigative Operations and Guidelines
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of an admission by a party because|his/her|responsibi1ity is considered
sufficient to 'ustif its rece tion in evidence a ainst him/her.| J Y P .8Admissions by a partyppponent include confessions, i.e., a confession
is a species of admission. In a criminal case, a confession constitutes
a direct acknowledgment by the defendant oflhis/her92guilt of the crime
charged against|him/her,|whereas an admission is an acknowledgment by the
defendant of certain facts which tend, together with other facts, to
establish|his/heriguilt. As'a narrative-of the defendant's personal
conduct a confession stands somewhat apart from an admission, calls for
separate treatment, and special rules are applicable to it. Generally,
a confession is admissible in evidence if it is satisfactorily shown that
the_defendant,_inrkeepingmwithcthentraditionalndoctrine,_made_it___m,,__nM________"__voluntarily without inhucements; and, if in keeping with the
constitutional guarantees, the confession was not obtained in violation
of the defendant's rights to remain silent and to have the assistance of
counsel. i
! If a statement is made by another person in the presence
and hearing of a party containing assertions of fact which if untrue, theparty would under allithe circumstances naturally be expected to
deny,|his/her92 failure to speak has traditionally been receivableagainst|him/herras anTadmission. These "tacit admissions" are received
with caution, however; when they occur in the course of criminal
investigation. The courts have surrounded them with various restrictions
and safeguards,-and the constitutional Miranda Rule serves to
circumscribe them.
! As a matter of
declarations of one conspirator
progress and in its furtherance
as acts for which the latter issubstantive law, the acts and
occurring while the conspiracy is in
are provable against another conspirator
criminally responsible. The declarations
of one conspirator'may also be proved against another conspirator as
representative admissions to prove the truth of the matter asserted. The
existence of the conspiracy must be proved independently to justify the
admission of the declarations. Admissions made after the termination of
the conspiracy are excluded. I
EFFECTTVE: 08/21/87
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3-10.5 Hearsay Within Hearsay
e Hearsay included within hearsay is not excluded under the
hearsay rule if each part of the combined statements conforms with an
exception to the hearsay rule provided in these rules. Thus, in multiple
hearsay situations, where the objections attaching to simple hearsay are
even more involved, each of the out-ofrcourt statements must satisfy the
requirements of some exception to the hearsay rule._
EFFECTIVE: 08/21/87J1
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3-10.6 Attacking and Supporting Credibility of Declarant
When a hearsay statement, or a statement of a coconspirator
of a party, has been admitted in evidence, the credibility of the
declarant may be attacked, and if attacked may be supported, by any
evidence which would be admissible if the declarant had testified as a
witness. Evidence of a statement or conduct by the declarant at any
time, inconsistent with his/her| hearsay statement, is not subject to any
requirement that|he/she may have been afforded an opportunity to deny or
explain. If the party against whom a hearsay statement has been admitted
calls the declarant as a witness, the party is entitled to examine
Ilhim/herlon the statement as if under cross-examination. Thus, the
credibility of a hearsay declarant may be attacked and supported as .
though|he/she|had in fact testified. _The credibility of a co-
conspirator may also be attacked or supported as in the case of a hearsay
declarant even though the statement of a cdconspirator of a party is not
hearsay under the Rules. '
EFFECTIVE: 08/21/87
3-11 CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
1 ! The evidentiary doctrine governing the admissibility of
the contents or terms of a written document was formerly called the "best
evidence rule." Aimed at preventing inaccuracies and fraud by requiring
the production of theforiginal document itself, the best evidence_ru1e
was essentially related to writings. Modern techniques of recording,
however, have expanded methods of storing data, e.g., by computers,
photographic systems, and other developments. The instant rule applies
to these expanded methods of recording facts as well as to traditional
writings. _
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! Unde
is the writing or rec
same effect, a photog
printout. Thus, a car
negative of a photogr
of this rule. A "dupl
accurately reproduce
as the original or fr
is given the status 0
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ve Operations and Guidelines
PAGE 3 -
r the Rules an "original" of a writing or recording
brding itself, any counterpart intended to have the
raph or its negative or print, or a computer
bon copy of a sales ticket or any print from the
aph is deemed to be an "original" for the purposes
icate" is a counterpart produced by techniques which
the original, e.g., produced by the same impression
om the same matrix. In large measure, a duplicate
E an original, e.g., a bank microfilm record of
' "'1.
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of a writing, recordi
or photograph is requ
by Act of Congress..
motion picture as a c
however, this rule do
to prove the contents
illustrate the witnes
apply to an automatic
used to prove its con
! A du
original unless a que
original or it would
! The
contents of a writing
originals are lost or
destroyed them in bad
process; or at a time
against whom offered,
subject of proof and
recording, or photogr
Under the foregoing c
with no degrees, is a
! Cont
proved by the testimo
or by his written adm
the original. The co
may be proved by cert....~ _1 -
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1
general rule is that_in order to prove the contents
ng, or-photograph, the original writing, recording,
ired, except as otherwise provided by the Rules or
When a witness merely identifies a photograph or
orrect representation of events which he saw,
es not apply since it does not constitute an effort
10f the picture but is solely to use the picture to
s' testimony. On the other hand, this rule does
lphotograph of a bank robbery as the photograph is
tents and has independent probative value.
plicate is admissible to the same extent as an
stion is raised as to the authenticity of the -
be unfair in the circumstances to admit it.
original is not required, and other evidence of the
, recording, or photograph is admissible if all
have been destroyed, unless the proponent lost or
faith; or no original can be obtained by judicial
when an original was under the control of the party
the was put on notice that the contents would be a
he does not produce the original; or the writing, '
aph is not closely related to a controlling issue.
ircumstances, secondary evidence¢of the contents,
dmissible.
ents of writings, recordings, or photographs may be
ny or deposition of_the party against whom_offered
ission without accounting for the nonproduction of
ntents of public records, if otherwise admissible,
ified copies or testified to be correct by a witness
who has compared it with the original. The contents of voluminous
writings, recordings,
examined in court mayor photographs which cannot conveniently be
be presented in the form of a chart, summary, or
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calculation, but the originals or duplicates shall be available for
examination by other parties andjthe court may order that they be
produced in court. 7 y _ '
! The identity and address of the person in possession of
admissible writings, recordings, or photographs who can properly produce
and identify them shodld always be ascertained and included in an .
investigative report.! It should likewise be shown exactly what writings
are to be produced_voluntarily or under subpoena duces tecum.
EEEECI1!E1_OBZ2l[8J _M i rm_.»..=_
3-12 IDENTIFICATION on AUTHENTICATION or REAL AND DOCUMENTARY' EVIDENCE J i -
! Real evidence, often called physical or demonstrative
evidence, consists as noted of tangible things. Its variety is legion.
It may constitute direct evidence, e.g., the jewelry stolen in a robbery;
or circumstantial evidence, e.g., the latent fingerprint of the defendant
lifted from the doorknob of the burglarized room. It may have played an
active role in the crime, e.g., the fatal weapon in a murder case; or it
may be employed for illustrative purposes, e.g., the photograph, chart,
or model used to clarify trial testimony. Documentary evidence consists
of words and figures set down on a writing, recording, or photograph,
such as a letter, report, book of account, memorandum, or bank deposit
slip. A document may be private or public in character.
! Before items of real and,documentary evidence can be
admitted in evidence, they must be identified or authenticated in some
manner. They do not prove themselves. They must be shown to be what
they are purported to'be. For example, an article of clothing found at
the scene of a crime cannot constitute relevant evidence against the
defendant unless his ownership or previous possession of it is shown._
A document purporting to be from the defendant reliedlupon to establish
an admission by him, has no probative value unless it is shown that he
authored it. This condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is
what its proponent claims. Compliance with the requirements of
identification or authentication, however, does not assure the admission
of an item of real or documentary evidence into evidence since other
rules of evidence may bar its admissibility.
! The requisite identification or authentication of real
and documentary evidence may consist, for example, of the testimony of
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Manual of Investigative Operations and Guidelines
Part II _ PAGE 3 -
a witness that he wasipresent at the time and place when narcotics were
taken from the defendant and, accounting for their custody through the
period until trial including laboratory analysis, that the narcotics in
court are those_takenlfrom the defendant. It may be the_testimony of a
witness who was present at'the signing of a document in issue. It may
consist of nonexpert opinion as to the genuineness of handwriting based
on familiarity with the handwriting not acquired for purposes of the
trial, or comparison by expert witnesses. A voice may be identified by
opinion based upon hearing it at any time under circumstances connecting
it with the alleged speaker. ' .
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documents and, accordingly, extrinsic evidence of authenticity as a
condition precedent to admissibility is not required.
Self"authenticating documents include domestic Public documents, under
seal or not under seal, foreign public documents, certified copies of
public records, official publications, e.g., statutes and court reports,
newspapers and periodicals, and writings acknowledged before a notary
public. This presumptive authentication does not preclude evidentiary
challenge to the genuineness of such documents.. Although a newspaper may
be received in evidence as authentic, the question of authority and
responsibility for items therein contained remains open.
! To insure that items of real evidence will be
admissible, it is essential that they be properly identified by the Agent
when they are found, e.g., at a crime scene; that he make notes
describing the evidence at that time and the way it was marked; that it
is packaged carefully and the container properly identified; and that a
chain of custody and a record thereof is'maintained from the time of
discovery to the time of the trial. This complete and rigorously
adheredto system of identification and custody negates the possibility
of substitution, alteration, and tampering of real evidence and insures
its admission at trial.
EFFECTIVE: O1/31/78 ,
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Part II - 92 ' PAGE 3 - 32
3'13 CONSTITUTIONAL SAFEGUARDS I
! Constitutional safeguards, such as the protection
against unlawful searches and seizures secured by the Fourth Amendment,
the protection against selfincrimination secured by the Fifth Amendment,
and the protection against denial of the right to the assistance of
counsel at a critical stage in the prosecution secured by the Sixth
Amendment must be borne in mind at all times during the course of
investigation to ensure that evidence is obtained legally. Any evidence
obtained in violation of constitutional rights is inadmissible.
c __W"_§Zl_H§s§gtsHs;9,@xp§9§§§mtg,Rg_§§miLiar_with_mwll llrll__i_ll_il_ m_l____l__the]FED1R.EVID.,|the basic doctrines of which should be considered in all
investigations, whether criminal or civil. Likewise, these Rules must
be considered in preparation of both investigative and prosecutive
summary reports. _ ,
i ! All reasonable precautions must be taken to ensure that
. evidence obtained by Agents is admissible} I
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Part II 3 _ - 1 V A PAGE 4 - 1
SECTION 4. JUVENILES AND JUVENILE DELINQUENCY ACT
u
4~1 GENERAL STATEMENT
EFFECTIVE: 02/22/88
i P.
The Juvenile Justice and Delinquency Prevention Act of 1974,
Public Law 93-415, Title 18, USC, Sections 5031-5042 hereinafter Act!,
and its pertinent legislative history, recognize that juvenile
delinquency is primarily a concern of the states. The Act places
virtually all juvenile cases in state courts and establishes limited,
definable circumstances for the exercise of Federal jurisdiction. The
discussion below outlines the procedures which govern the handling of
juveniles in the Federal courts.
EFFECTIVE: 02/22/as
4"
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4-2 " SPECIFIC PROVISIONS or THE ACT i.
EFFECTIVE: O2/22/88 l
4-2.1 " Definitions p '
! Juvenile - A person who has not attained his/her 18th
birthday. For purpose of proceedings and disposition; a juvenile is a
person who has not attained his/her 21st birthday. [ See LHBSA, '
3-16.1.!! 1
! Juvenile Delinquency - The violation of a federal law
by a person prior to his/her 18th birthday which would have been a F
"crime" if committed by an|adu1t or a violation by such person of
Title 18, USC, Section922 x! juvenile's possession, sale, delivery,
or transfer of handgun and/or handgun ammunition!.I 792f
! Federal Juvenile Judge United States District Judge
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! Federal Juvenile Court ~ United States District Court
U.S.D.C.!. The Act allows the court to be convened at any time or
place within the judicial district and permits proceedings in the
judge's chambers. i
92
EFRECTTVE: 10/01/97
4-2.2 Arrest Procedure
The standard pre-arrest procedures applicable to adults
discussion with USA, filing of complaint, issuance of warrant! also
govern arrests of juveniles. After arrest, however, the Act imposes
several additional responsibilities on the arresting Agents.92..
.§§ EFFECTIVE: 02/22/as
4-2.2.1 Advice of Rights
The arresting Agents should immediately advise the arrested
juvenile of his/her "legal rights" in language comprehensible to the
juvenile. The rightslfound on the standard Miranda form, FD-395, appear
to meet this requirement. However, inasmuch as no interview will be
conducted see 4-2.2.5 below!, it will not be necessary to obtain a
waiver signature from the juvenile at this time.
EFFECTIVE: O2/22/S8
4-2.2.2 Notification of USA and Juveni1es Parents
! The Act requires the arresting Agent to immediately
. notify the USA and the;juvenile's parents, guardian, or custodian of such
custody. The parents, guardian, or custodian must also be notified of the P
juvenile's rights and the nature of the alleged offense. A
| |!| Because of the affirmative duties these provisions place on an arresting Agent, it can be anticipated that defendants will,._._ .._. _u.~;¢-A challenge the Bureaufspcompliance with the Act. Thus, it is necessary _
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that separate FD-302s_be prepared to clearly demonstrate that a! the
juvenile was advised of|his/her|rights, b! the USA was notified, c! the
parent s!, guardian, or custodian was notified, and d! the juvenile was
taken before a magistrate see discussion in|42.2;6|below!.
EFFECTIVE: O8/21/87
4-2.2.3 Fingerprinting and Photographing
. _The_Act_forbids_fingerprintingwandvphotpgraphing_a_jqygnile__
unless [he/shelis to be prosecuted as an adult, or the trial judge
consents. |Fingerprinting and photographing of a juvenile shall be done
whenever a juvenile has been found guilty of committing an act which if
committed by an adult would be a felony that is a crime of violence or
a violation of Title 21, USC, Section 841 manufacturing, distributing,
dispensing of controlled substances or possession with intent to do
same!, section 952 a! importation of controlled substances!, section 955
possession of controlled substanceson board vessels arriving in or
departing from United States! or section 959. manufacture or distribution
of controlled substances for purposes of unlawful importation!.| Because
usually it will not beiknown at the time of arrest whether the arrestee
will be prosecutedlas an adult or handled as a juvenile offender, Agents
are not to fingerprint or photograph a juvenile without consent of the _
judge. _
EFFECTIVE: 08/21/87
42.2.4 Press Releases
The Act also prohibits making public either the name or
picture of the juvenile. A press release is permissible concerning the
arrest of a juvenile if carefully worded to contain no identifying
information.
EFFECTIVE: 08/21/87
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4r2.2.5 Interviews of Juveniles _
» v
admission of his/her own guilt, or even an exculpatory statement between.
the time of his/her arrest for a Federal offense andlhis/her|initial
appearance before the magistrate who advises[him/her|of|his/her|rights.
Information volunteered by the arrested juvenile concerning|his/her|own
guilt will be recordedlin the Agent's notes for use in subsequent
proceedings, and clarifying questions may be asked as necessary to make
certain what the juvenile intends to say. The volunteered statement may
be reduced to writing if such-action does'not involve any delay in the
juveni1e's appearance before the magistrate. The juvenile may, however,A juvenile is not to be interrogated for a confession or H;
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ȴi@be questioned concerning the guilt of someone else if such questioning
does not cause any delay in bringing|him/herlbefore the magistrate. '
These notes apply on1y;from and after an arrest of a juvenile, as defined
by Federal law for a Federal offense. They do not apply when the
juvenile is still a suspect for a Federal offense under arrest by state
or local officers on a state or local charge. The latter type situations
do not come within the terms of the Act.
F .
EFFECTIVE: O8/21/87
42.2.6 Initial Appearance Before Magistrate | See MIOG, Part II,
4-2.2.2; LHBSA, 3-16.2 !.!| j
Bureau Agents must take the arrested juvenile before a
magistrate forthwith. The magistrate must release the juvenile to
his/her parents or guardian or_other responsible party! unless|the|
magistrate determines that detention is necessary to secure the
juvenile's timely appearance before the court, or to ensure the
juvenile's safety or that of others. This determination can be made
only after a hearing at which the juvenile is represented by counsel.
EFFECTIVE: 10/01/97 »
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4-2.3 Detention
! The Act requires detention in certain types of
facilities whenever possible.- It also contains an absolute bar to
detention in facilities where regular contact with adults results.
Consequently, local juvenile facilities must be utilized whenever
available. Local jail facilities approved by the Bureau of Prisons may
be utilized when the more appropriate local juvenile facilities are not
available, but only if the juvenile will have no regular contact with
adults and insofar as possible, with adjudicated delinquents. If such
a facility is not available locally, the juvenile must be released or
____ann,,Iransported_to_such,a_faei1ity.W __. g _ ,g "-~ _ __ >4-~ ~ L4 --- -1-=;;l5-~xQsa:-~ e--17;! ~- -' --_- -'ai;_L';-_-..__C-_._ 1 ---...-1;~/_._bg*.,
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! Each office will ascertain through the United States
Marshal the locations of those detention facilities within the field
office territory which meet the criteria of this section and make such
information available to all Agents assigned to the field office on-a
current basis. When suitable detention facilities are more conveniently
located within the territory of an adjoining field office, such
facilities should be used whenever possible.
EFFECTIVE: 02/22/as
4-2.4 Prosecution .
! Certification - Once a juvenile has been taken into
federal custody, or arrested by local authorities for an act which
also constitutes a federal crime, a decision must be reached on the
question of whether to prosecute the juvenile in state or federal
court. As previously noted in paragraph 4-l.l,_supra, the Act-has the
effect of placing most.juvenile cases in state court. Thus, in order
to pursue the case federally, the USA must file papers in U.S.
Qistrict Court certifying that his/her investigation and research have
determined that a! the case is one of exclusive federal jurisdiction,
or b! the state has concurrent jurisdiction but the local prosecutor
refuses to prosecute, or c! the state does not have programs and
services adequate forjthe needs of the juvenile, or d! the offense
charged is a crime of violence that is a felony or is a violation of
Title 18, USC, Section 922 x! or 924 b!, 8!, or h! firearms
offenses!; Title 21, USC, Section 841, 952 a!, 953, 955, 959,
96O b!!, b!!, or b!! controlled substance offenses!; and
that there is a substantial federal interest in the case or offense.
Federal jurisdiction always lies iflthe case involves an offense
committed within the special maritime and territorial jurisdiction of
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the United States and the maximum authorized term of imprisonment does
not exceed 6 months. |Without the existence of one of these grounds, a
court of the United States cannot proceed against a juvenile and the
juvenile must|be surrendered to the appropriate state authorities.
A a! With regard to ! c!, it is the responsibility
of the Chief Probation Officer to conduct a study of the state
juvenile facilities inhis/her district to determine whether there are
programs and services adequate for the needs of juveniles.
b! The certification procedure is to be begun after
theMar1:.e§-.t_,.,1>rn,@§§.L11e§ ,,b_esas E93l!P1.'*=L*i92?!_-_-__I_§__ti1.!P=,_.i1192"-mi .1.e__.i. S .. e.1Tr.e§.E.s_<Li,n
a distant district, he/she may be removed to the district of
prosecution pursuant to Rule 40, FED.R.CRIM.P., before certification
inasmuch as the USA in the district of prosecution is the only party
who can determine whether one of the factprs in ! above exists which
can invoke federal jurisdiction. _ I
! |Prosecution/Motionlto Transfer to Adult Court - After
proper certification has been made and the case has been accepted in
federal court, the decision must be made whether to handle the
defendant as a juvenile or transfer the matter to adult court. The
Act shows a strong preference for proceeding as a juvenile. A
juvenile action is commenced by the USA filing an information in the
appropriate district court, in chambers, or otherwise.
a! A transfer to adult court can be initiated by
either ! a written request of the juvenile, upon advice of counsel,
or ! the USA filing a motion to transfer Motion to Proceed Against
the Juvenile as an Adult!. A motion to transfer may belfiled: !
where the offender was 15 years or older when the alleged act was
committed if a! the act would be a felony that is a crime of
violence if it had been committed by an adult or if b! the act is an
offense under Title 18, USC, Section 922 x!, 924 b!, g!,-or h!, or
Title 21, USC, Section 841, 952 a!, 955, or 959; or ! where the
offender was 13 years or older when the alleged act was committed if
a! the crime of violence is an offense under Title 18, USC, Section
113 a! l! assault with intent to commit murder!, a!! assault with
intent to commit any felony!, or a!! assault with a dangerous
weapon with the intent to do bodily harm!, 1111 murder!, or 1113,
attempt to commit murder or manslaughter! or if b! the crime is an
offense under Title 18, USC, Section 2111 robbery!, 2113 bank
robbery!, 224l a! aggravated sexual abuse!, or 224l c! sexual act
with a minor under 12 years or an attempt to do so!, and is committed
while the juvenile offender is in possession of a firearm. In
addition, the court must find, after a hearing, that such a transfer
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Manual of Investigative Operations and Guidelines
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would be in the interest of justice. Transfer_to adult status is
mandatory when a juvenile of 16 years or older, who has a prior
conviction or adjudication of an act which if committed
by an adult would be one of the abovedescribed offenses, allegedly
commits a similar offense or an offense which would be a felony if
committed by an adult and that involves the use, attempted use, or
threatened use of physical force, or is an offense under Title 18,
USC, Section 32 destrpction'of aircraft or aircraft facilities!, 81 .
arson!, 844 d!, e!, f!, h!, or i! offenses involving
explosives!, or 2275 firing or tampering with vessels!.|
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adult prosecution is desired, the USA must obtain authority from the
Department of Justice before filing a motion to transfer to adult
court. The juvenile will be afforded a hearing on this motion at
which he/she has the right to be assisted by counsel. The judge must
make findings of fact on the juvenile's age, background, nature of the
offense, extent of juvenile's intellectual development, etc., before
ruling on the motion to transfer. [In addition, the judge must '
consider the extent to+which the juvenile played a leadership role in
an organization or influenced others to take part in criminal
activity involving theluse or distribution of controlled substances
or firearms.| Statements made by the juvenile in connection with a
transfer hearing shallinot be admissible at a subsequent criminal
prosecution in adult court.
! Trial1- If the juvenile is not proceeded against as
an adult, the USA shall proceed by information for the alleged act of
juvenile delinquency. yThe Act-provides that the delinquency trial
must take place within.30 days from the date the juvenile was placed
in custody or the information shall be dismissed with prejudice, e.g.,
unless the delay was caused or consented to by the juvenile or his/her
attorney, or would be in the interest of justice in the particular
case. This provision is inapplicable if the juvenile is not detained
in custody!. The juvenile trial can take place at any place within
the district and will be tried by the judge delinquency matters are
not tried by a jury! in chambers or otherwise. .
! |Prosecution/Disposition|- If the juvenile is
adjudicated delinquent;by the judge, a separate dispositional hearing
must be held within 20jdays after the adjudication. At this hearing
the judge may a! suspend the adjudication of delinquency; b! place
the juvenile on probation; c! commit him/her to the custody of the
Attorney General; or H! enter an order of restitution. The maximum
term of probation or cpmmitment shall not extend beyond the juvenile's
21st birthday or the maximum term which could have been imposed on an
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Part 11 .92 PAGE 4- s-.. _. ,
adult, whichever is sooner, unless the juvenile is between 18 and 21
years old at the timeyof disposition, in which case the maximum shall
not exceed the lesserlof three years or the maximum term which could
have been imposed on an adult convicted of the same offense. |The term
of commitment for a juvenile, who if convicted as an adult would be
convicted of a Class A, B, or C felony, shall not exceed five years.|
EFFECTIVE: 10/O1/97
4-2.5 Use of Juvenile Records ,
After the USA has filed an information initiating juvenile
delinquency proceedings against a Bureau subject, any information or
records in possession of the Bureau shal1.not be disclosed, directly
or indirectly, unless authorized by the Act. This limitation applies
_ to records obtained or prepared in the discharge of an official duty iii by an employee of the court or the FBI. Exceptions to this rule are
3-1
- An.
-iii set forth below:
! Inquiries from the judge, USA, or defense counsel;
! Inquiries from another court of law;
! Inquiries from an agency preparing a presentence
report for another court;
! Inquiries from law enforcement agencies where the
request for information is related to the investigation of a crime or
a position within that agency; '
! Inquiries, in writing, from the director of a
treatment agency or the director of a facility to which the juvenile
has been committed by the court; "
! Inquiries from an agency considering the person for a
position immediately and directly affecting the national security; and
! Inquiries from any victim of such juvenile y
delinquency, or if the victim is deceased from the immediate family of
such victim, related to the final disposition of such juvenile by the
court.
7%,9- ="'r. t . . . Egg; 8! Whenever a juvenile has on two separate occasions
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been found guilty of committing an act, which if committed by an adult
would be a felony crime of violence or an offense under Title 21, USC,
Section 841, 952 a!, 955 or 959,[or whenever a juvenile has been found '
guilty of committing ajsingle act after his/her 13th birthday, which .
if committed by an-adult would be an offense-under Title 18, USC,
Section 113 a!!, a!!, or a!!, 1111 or 1113, or, while the
juvenile is in possession of a firearm, an offense under Title 18,
USC, Section 2111, 2113, 224l a! or 2241 c!,|the court shall transmit
to the Criminal Justice Information Services Division the information
concerning the adjudications, including name, offenses, sentences,
court, dates of adjudication and notice that the proceedings were13+
lm_juvenileidelinquency_adjudications. 1 ,,,_, "_m___ __; __ _____
[The limitations on disclosure apply to any juvenile records in
possession of the Bureau, including arrest data, such as fingerprints i
and photographs. However, the records of a juvenile transferred for
adult prosecution, or submitted to the FBI under the_circumstances
described in subparagraph 8! above, may be disseminated in92the
manner applicable to adult offenders.
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Part II A ' ' _ PAGE 5 1
SECTION 5. THE SPEEDY TRIAL ACT
5'1 GENERAL PROVISIONS
! The Speedy Trial Act, Title 18, USC, Sections 3161-
3174, governs the time periods under which the government must file
formal charges and be prepared to try an accused. A -
_________________ l__Ihe_Actcrequires_that_an_informationormindictment_beaaaaaaaaaaa,a,,_a,_
filed within 30 days from the date on which a person is arrested or' -
served with a criminal summons. If the charge is a felony and no
grand jury has been in session during the 30-day period, the time may
be extended an additional 30 days.
! Uponfa not guilty plea, the Speedy Trial Act requires
the trial to commence no sooner than 30 days nor later than. ijii 70 days from the date of the public filing of the|information
-F orlindictment or the defendant's first court appearance in the .
district where the charges are pending, whichever is later. The 70-
day period may be extended by periods of excludable delay specified in
the statute. .
EFFECTIVE: 02/14/97
5-1.1 Sanctions in the Act
_ i The failure to file an information or indictment against an
arrested individual within the required period shall result in dismissal
of the charge, possibly with prejudice. Failure to bring a defendant to.
trial within the specified time period will permit a defendant to move
to have the indictment or information dismissed. Again, the judge may
' dismiss with prejudice. ' '
EFFECTIVE: 08/21/67 J
Z12? 5'2 EFFECT ON INVESTIGATIVE OPERATIONS
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EFFECTIVE: 08/21/87
5-2.1 - Arrest by State Authorities T
! The arrest of a potential Federal defendant by state or
local authorities on state charges does not activate the Act. .However,
if the state arrest is at the behest of Federal authorities it is likely
to be viewed as an attempt to subvert the Act and the time limits would
date from the time of the state arrest.&
.A.921 my.__ _ - - -.1
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! -If state authorities make a good faith arrest on state
I charges and later turn the defendant over to Federal authorities, the
statute will begin to run when the state authorities turn the defendant
over to Federal custody.
.- r". 17 ::r, EFFECTIVE: 08/21/87
|[5-2.2] Issuance of Search.Warrant for the Person
In investigating nonviolent offenses in which suspects can
be expected to have evidence on their person e.g., - gambling matters!.
consideration should be given to seizing the evidence under the authority
of a search warrant rather than_incident to the suspect's arrest. The
issuance and execution of a search warrant for the person of a suspect
does not activate the Act. I I
EFFECTIVE: 08/21/87
5-3 COMPLIANCE WITH THE ACT I
EFFECTIVE: 08/21/87-
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5-3.1 _ Inform U.S. Attorney When Arrest Made
_ Agents should ensure that the U.S. Attorney is informed
promptly of all Bureau arrests. This is'to avoid the situation in which
a Bureau fugitive or defendant is arrested on or near the last day in
which a grand jury is in session. Because the Act requires prompt
indictment after arrest, failure to advise the U.S. Attorney about the
arrest might result inlan inability to present the case to the grand jurywithin the specified time limits. . ' i
, t
|=1F.FECIIlE.=__Q/_Z_lL§Z__-_.-,s_Wm___,__ii_i.-_____._...._ -. - -- _ _ * __~___._ i.i-s._..-_____-__-A
5-3.2 Timely Preparation of Reports
| Agents should ensure that reports are complete and promptly
submitted to the U.S. Attorney. All significant developments in an
investigative matter, such as the unavailability of an essential witness,
.2
EFFECTIVE: O8/21/87 :i?5 should be brought to the U.S. Attorney'sattention without delay.
5-3.3 Filing of Complaints
| . Agents should seek the authority of the U.S. Attorney prior
to filing a complaint. Premature arrests of Bureau subjects might
unnecessarily invoke the Speedy Trial Act.
EFFECTIVE: 08/21/87
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Manual of Investigative Operations and Guidelines
Part II is 1 . - PAGE 6 - 1
SECTION 6. COURT APPEARANCE AND TESTIMONY OF AGENTS
6-1 ' DEPARTMENTAL ORDER, REGULATIONS, AND LEGISLATION
EFFECTIVE: O7/27/81
6:l-1_______1Production_or_Disc1osure_in_Eederal_and_State_Rtocedures__
Source: Attorney General Order No. 919-BO, 45 Fed. Reg.
83210, as codified in}Chapter I, Subpart-B, Section 16.21 et seq.,
Title 28, Code of Federal Regulations. This order prescribes
procedures with respect to the production or disclosure of material or
information in response to subpoenas or demands of courts or other
authorities, except Congress, in state and Federal proceedings.
1
EFFECTIVE: 07/27/81
6-1.2 Chapter I, Part 16, Title 28, Code of Federal Regulations
"Section 16.21 Purpose and Scope.
" a! This subpart sets forth procedures to be followed
with respect to the production or disclosure of any material contained
in the files of the Department, any information relating to material_
contained in the files of the Department, or any information acquired
by any person while such person was an employee of the Department as a
part of the performance of that person's official duties or because of
that person's official status:
I
! in all federal and state proceedings
the United States is a party; andin which
in which
in which"!92 in all federal and state proceedings
the United States is not a party, including any proceedings
the Department is representing a government employee solely in that
employee's individualncapacity, when a subpoena, order, or other
demand hereinafter collectively referred to as a 'demand'! of a court
or other authority is issued for such material or information.
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Manual of Investigative Operations and Guidelines
Part II . " *2 I ' ' _; PAGE, 6
" b! For purposes of this
the Department includes all officers,
States appointed by, or subject to the supervision, jurisdiction, or
control of the Attorney General of the United States, including U.S.
attorneys, U.S. marshals, U.S. trustees and members of the staffs of
those officials. n 'subpart, the term employee of
and employees of the United
" c! Nothing in this subpart is intended to impede the
appropriate disclosure, in the absence of a demand, of information by
Department law enforcement agencies to federal, state, local and
foreign law enforcement, prosecutive, or regulatory agencies. i92 . wit
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" d! This subpart is intended only to provide guidance
for the internal operations of the Department of Justice, and is not
intended to, and does not, and may not be relied upon to create any
right or benefit, substantive or procedural, enforceable at law by a
party against the United States.
"Section 16.22 General prohibition of production or
disclosure in federal and state proceedings in which the United States
is not a party. -
" a! In any federal or state case or matter in which the
United States is not alparty, no employee or former employee of the
Department of Justice shall, in response to a demand, produce any
material contained in the files of the Department, or disclose any
information relating to or based upon material contained in the files
of the Department, or disclose any information or produce any material
acquired as part of the performance of that person's official duties
or because of that person's official status without prior approval of
the proper Department official in accordance with Sections 16.24
and 16.25 of this chapter. p "
" b! Whenever a demand is made upon an employee or former
employee as described in subsection a! of this section, the employee
shall immediately notify the United States Attorney for the district
where the issuing authority is located. The responsible United States
attorney shall follow procedures set forth in Section 16.24 of this
chapter. " _
" c! If oral testimony is sought by a demand in any case
or matter in which the United States is not a party, an affidavit, or,
if that is not feasible, a statement by the party seeking the
testimony or by his attorney, setting forth a summary of the testimony
sought and its relevance to the proceeding, must be furnished to the
responsible United States attorney. Any authorization for testimony
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Manual of Investigative Operations and Guidelines
Part II . PAGE 6 - 3
by a present or former employee of the Department shall be limited to
the scope of the demand as summarized in such statement.
. <
" d! ,When*information other than oral testimony is sought
by a demand, the responsible United States attorney shall request a S
summary of the information sought and its relevance to the proceeding.
"Section lh.23 General disclosure authority in federal
and state proceedings in which the United States is a party.
" a! Every attorney in the Department of Justice in
charge_of_any_case_orimatter in whichitherUnited_States-isra.party_isim __n_
authorized, after consultation with the originating component as
defined in Section l6.24 a! of this chapter, to reveal and furnish to
any person, including an actual or prospective witness, a grand jury,
counsel, or a court, either during or preparatory to a proceeding,
such,testimony, and relevant unclassified material, documents, or
information secured by§any attorney, or investigator of the Department
of Justice, as such attorney shall deem necessary or desirable to the
discharge of the attorney's official duties, provided, such an
attorney shall consider, with respect to any disclosure, the factors
set forth in Section 16.26 a! of this chapter, and further provided,
an attorney shall not teveal or furnish any material, documents,
testimony or information when, in the attorney's judgment, any of the
factors specified in Shction 16.26 b! exists, without the express
prior approval by the Assistant Attorney General in charge of the
division responsible fhr the case or proceeding, the Director of the
Executive Office for United States Trustees hereinafter referred to
as the EOUST'!, or such persons designees. "
" b! An attorney may seek higher level review at any
stage of a proceeding, including prior to the issuan
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