Letter from the Editor in Chief he next two issues of the Bulletin focus on the working relationships among the United States Attorneys' offices, Tthe Criminal Division's Office of Enforcement Operations (OEO) and Computer Crime & Intellectual Property Section, and the Assistant Attorney General or Deputy Assistant Attorney General in the area of Title III, and other electronic surveillance techniques. We have included articles, checklists, and interviews covering the approval process for, and use of, Title III intercepts and related electronic surveillance methods in the investigation and prosecution of a variety of criminal cases. The interview of OEO Director Frederick D. Hess is terrific. He provides us with insight into the history of OEO, its inner workings, and the need to have OEO lawyers review applications to allow us to use these effective and powerful investigative tools. Through the collective efforts of several OEO lawyers, we have a great article on the "nuts and bolts" of OEO's Title III approval process and highlights of several major Title III cases. You'll also find that the articles submitted by Michael R. Sklaire of the Narcotic and Dangerous Drug Section are invaluable references when faced with "what do we need to do to get . . . " questions. AUSA Jeffrey W. Johnson has written a very common sense article regarding his approach to wiretaps. We also included an interview with DEA Special Agent Mark Styron regarding his perspective on working relationships between AUSAs and Agents in wiretap cases. AUSAs Melissa J. Annis, Monica Bachner, and Patricia Diaz share their experiences with wiretap investigations, including some of the obstacles AUSAs face when supervising wiretaps. Each author offers terrific suggestions and "things to think about." Please take time to review the inside back cover of the magazine for our publication schedule over the next several months. If you are interested in writing an article on any of these topics, please contact me. Finally, if you have any comments or constructive criticisms regarding past issues, call me at (809) 773 3920 or Email me at AVISC01(DNISSMAN). Our intent is to make the Bulletin a practical and useful resource; our method of doing so is through your continued contributions, comments, and suggestions. DAVID MARSHALL NISSMAN Published by Executive Office for United States Attorneys Washington, D.C. Carol DiBattiste, Director United States Attorneys' Bulletin Staff, (202) 616 1681 David Marshall Nissman, Editor in Chief Wanda J. Morat, Editor Barbara J. Jackson, Editor Patrice A. Floria, Editor Susan Dye Bartley, Graphic Designer Nina M. Ingram, Student Assistant Send distribution address and quantity corrections to: Barbara Jackson, Executive Office for United States Attorneys, Bicentennial Building, Room 6011, 600 E Street, N.W., Washington, D.C. 20530 0001 (202) 616 8407 or fax (202) 616 6653
SEPTEMBER 1997UNITED STATES ATTORNEYS' BULLETIN1Contents 2INTERVIEW WITH DIRECTOR50UNITED STATES ATTORNEYS22 FREDERICK D. HESS, OFFICES/EXECUTIVE OFFICE FOR OFFICE OF ENFORCEMENTUNITED STATES ATTORNEYS OPERATIONS 8The Office of Enforcement Operations Its Role in the Area of Electronic Surveillance 19Electronic Surveillance Guide 24Don't Forget To . . . 26Defending Wiretaps: "Think in the Beginning What the End Will Bring" 28Wiretaps: A DEA Agent's PerspectiveAppointments Interview with Special Agent Mark StyronOffice of the Solicitor General 32Electronic Surveillance: Does it Bug You?Office of Justice Programs 39So You've Always Wanted to do a Wiretap:Immigration and Naturalization Service Practical Tips If You Never Have 41Wiretap Checklist 45Common (and Uncommon) Problems Encountered During the Course of Title III Investigations 47ATTORNEY GENERAL HIGHLIGHTS AppointmentsGS 14 Experienced Attorneys New Guidance on Parallel ProceedingsEnvironment and Natural Resources Division, National Church Arson Task Force ReleasesGeneral Litigation Section GS 13 to ReportGS 15 Experienced Attorney National Methamphetamine Strategy UpdateImmigration and Naturalization Service, President Supports Change in CocaineOffice of Naturalization Operations Penalties(detail) Attorney Immigration and Reform Transition Act ofExecutive Office for Immigration 1997Review Immigration Judges Release of FY 95 96 Health Care FraudJustice Management Division, Personnel ReportStaff GS 13 to GS 14 Experienced Seventh Anniversary of ADAAttorney Additional Cops to Fight CrimeUnited States Trustree's Office, San Child Safety LocksAntonio, Texas GS 11 to GS 14Appointments Resignations/Retirement Significant Issues/Events EOUSA Staff Update Office of Legal Education Computer Tips 69DOJ HIGHLIGHTS 77CAREER OPPORTUNITIES Civil Rights Division, Educational Opportunities Section GS 12 to GS 15 Trial Attorneys Environment and Natural Resources Division, Environmental Defense Section GS 12 to Experienced Attorney Appendix A OLE Course Nomination Form Appendix B OLE Videotapes
2UNITED STATES ATTORNEYS' BULLETINSEPTEMBER 1997Interview with Director Frederick D. Hess Office of Enforcement Operations Director Frederick D. Hess Office of Enforcement Operations rederick D. Hess has served as Director of the Office Fof Enforcement Operations (OEO) for more than 15 years. He received his Bachelor of Arts degree from Columbia College and Juris Doctor degree from Brooklyn Law School. In August 1967, he was appointed an attorney in the Criminal Division as part of the Attorney General's Honors Program. Mr. Hess began his career in the Department of Justice in the Legislation and Special Projects Section, where he served as Deputy Chief from January 1974 until becoming Associate Director of the Office of Legal Support Services (OLSS) in February 1979. He was Acting Director of OLSS from January 1980 to June 1982, when OLSS was merged with OEO and he was named Director. As Director of OEO, Mr. Hess oversees the use of the most sophisticated investigative tools in the Federal Government. Beyond reviewing United States Attorneys' offices' requests for authorization to apply for court orders approving the interception of wire, oral, and most electronic communications, OEO with a staff of approximately 100 attorneys, analysts, paralegals, and secretaries provides the United States Attorneys' offices and the Federal law enforcement agencies with a wide range of prosecutorial and investigative support services. OEO authorizes or denies the entry of all applicants into the Federal Witness Security Program (WSP), and oversees matters relating to all aspects of the WSP; administers the International Prisoner Transfer andS Visa programs; supervises the mechanism by which Federal law enforcement officers or agents employed by the Offices of the Inspectors General may become Special Deputy United States Marshals; and coordinates requests to immunize witnesses, subpoena attorneys, issue subpoenas to the press, close court proceedings, or search the offices of attorneys who are suspects or targets of an investigation. In addition, OEO provides legal advice to Federal, state, and local law enforcement agencies on the use of the Federal electronic surveillance statutes; assists in developing Department policy on emerging technologies and telecommunications issues; and responds to requests made to the Criminal Division for disclosure of information pursuant to the Freedom of Information Act and the Privacy Act. Upon request, OEO also assists in the drafting of reply briefs involving electronic surveillance issues. OEO Director Fred Hess (FH) was interviewed by Assistant United States Attorneys (AUSAs) David Nissman (DN), Editor in Chief of the United States Attorneys' Bulletin, and Jennifer Bolen (JB), Northern District of Texas. OEO Senior Associate Director Maureen Killion (MK) also participated in the interview. DN: How do you view the working relationship between OEO and the United States Attorneys' offices? FH: When we get a call from the field, the attorney's attitude is not, "What do you want?" but, rather, to ask what they can do to help. We have hardworking people, particularly in the Electronic Surveillance Unit. When D. Lowell Jensen, now a Federal district judge in San Francisco, was Assistant Attorney General of the Criminal Division, he coined a phrase for our office: "The office that never sleeps." DN: Do you personally review each affidavit? FH: We are now in a situation where there are just too many. Fifteen years ago, during the first year that I was here, there were 227 affidavits for review. The next year there were 360. Last year there were 1367. For seven or eight years, I read every affidavit, but it's
SEPTEMBER 1997UNITED STATES ATTORNEYS' BULLETIN3Hess Receives Attorney General Award On June 13, 1997, Director Frederick D. Hess, Office of Enforcement Operations (OEO), received the Attorney General's Mary C. Lawton Lifetime Service Award in recognition of high standards of excellence and dedication exhibited during his 30 year career with the Department of Justice, and especially during his 15 year tenure as head of OEO. He supervised the implementation of a variety of sensitive and sophisticated investigative or prosecutive programs, and handled inquiries pursuant to the Freedom of Information and Privacy Act. "We don't go forward on new Title III applications without a written request from the agency's headquarters telling us they want to do it."Frederick D. Hessjust not possible anymore. Also, the office is larger and has many more functions that require my attention. While I no longer have time to read the incoming affidavits, I do review the Electronic Surveillance Unit's action memoranda that summarize each electronic surveillance request for the Assistant Attorney General or Deputy Assistant Attorney General that must approve the request before a court order may be sought. On the incoming end, we like a senior person in the United States Attorney's office to sign off on the affidavit and let us know that this is a case that the United States Attorney wants to do. A Title III is a three legged stool: the legs are the investigative agency, the United States Attorney's office, and our office. Like any three legged stool, if one leg falls off, the stool falls over so all three participants have to approve. So when an affidavit is sent to this office, the agents primarily from DEA, FBI, and the Customs Service should also send a copy to their headquarters. The agency headquarters then does anattorney's action memo, are then given to the Unit Chief, independent review. We don't go forward on newJulie Wuslich, or her deputy, Janet Webb. One of them Title III applications without a written request from thereviews the case file and may request additional agency's headquarters telling us they want to do it.information or changes. Then this file comes to me or one Wiretaps are expensive. We've always used the ballparkof the OEO Associate Directors. I read as many of them figure of $50,000 for the cost of running a 30 dayas I can. We then review it, and put a buckslip on it to the wiretap, because wiretaps are so agent time intensive.Assistant Attorney General or one of the Deputy When we get an affidavit, we log it in and assign it to a reviewing attorney and a senior attorney. The senior attorney reads it quickly to make sure that there are no major problems with it, and then turns it over to the reviewing attorney. If there are problems with the affidavit and we find them a good percentage of the time the reviewing attorney contacts the Assistant United States Attorney who will be applying for the Title III order. We raise the problems we've seen in the affidavit, and discuss how the Assistant can get the affidavit in shape so we can move it forward. Once changes we request are made, the reviewing attorney writes a synopsis of the affidavit a five or six page action memorandum. A case file is started that contains the application, affidavit, and any prior action memoranda (from previously handled, related Title II requests). These documents, along with the OEOAssistant Attorneys General. One of these high level Department officials reviews the Title III request and, almost invariably, will sign it. They have problems with the requests once in a while, but major problems are rare after the extensive review process in OEO. DN: Who reviews the request when it goes to Main Justice? FH: When I started here, Title III allowed for the Attorney General's authority to be delegated only to the Assistant Attorney General's level, which created a great burden on the Assistant Attorney General especially as our numbers began to go up. We finally got that amended in 1986 so that the authority can now be delegated to the Assistant Attorney General or the Deputy Assistant Attorneys General for the Criminal Division. A request can now be handled by any one of the five Deputy Assistant Attorneys General unless, for some reason, I need to direct it to a specific Deputy such as when it's related to a previous request handled by one of the Deputies. Otherwise, whoever is available can get it. The only exception to this is a roving oral or wire interception request which, by statute, must be reviewed (and approved) by the Assistant Attorney General or higher. DN: What happens when the application comes back from the Deputy Assistant Attorney General?
4UNITED STATES ATTORNEYS' BULLETINSEPTEMBER 1997"Whether for an original or extension request, each affidavit has to establish probable cause for three things: that a predicate crime as set forth in the statute , has been or will be committed; that the people you're naming as violators are indeed committing these offenses; and that the people you are naming are using not just any phone but THAT phone or, if it's a request for a bug, THOSE premises to commit these specific offenses."Frederick D. HessFH: When the authorization is signed by the Deputy Assistant Attorney General, it is faxed back to us. The authorization memo, along with a letter from me to the United States Attorney, is faxed to the Assistant, and the Assistant then makes the actual application to the court. JB: Does that process change depending on the type of wiretap case; for example, narcotics, public corruption, or computer? Do different people get involved or is it basically the same process? FH: We send a copy of an original affidavit to the section of the Criminal Division that has the substantive responsibility for that subject area and ask them to review it, not for the existence of probable cause, but, rather, to determine if it is a significant case. Electronic surveillance is a very sensitive and important investiga tive tool, and we want it used where it is most advanta geous. The section submits their comments at the same time we're cleaning up other matters with the Assistant. When the request is ready to go to the Assistant Attorney General or Deputy Assistant Attorney General for review, we also need to get a memorandum from the headquarters of the investigative agency requesting that the application be reviewed and approved. This sometimes delays the approval process for several hours or a day. The Electronic Surveillance Unit is a collegial group. We assign the same attorney to any extensions and spinoffs, but if that person is on vacation or travel, another attorney can usually pick up the case without a problem, and there's not too much of a lag. Extensions are reviewed basically the same way as originals, except that we don't go to the substantive Criminal Division section for comments or to the investigative agency for a requesting memo. As such, we can usually get these done more quickly than the original request. I see two problems with extensions. The first problem is that sometimes the Assistant doesn't oversee the agent when the affidavit is being prepared. Everyone is in a hurry, that's a given. For example, in a drug caseU.S.C. 2516(1)], has been or will be committed; that the the agent will often throw together a train of conversations that is in code. These drug codes are not exactly sophisticated. I read them and know exactly what they're talking about, when they're talking about half a truck, half a shirt, or a car with three tires, but we need a document that a judge can read. So we request that these conversations be characterized or briefly interpreted. We can't expect every judge to know drug codes, or be willing to interpret the codes if the agent, who is trained as an expert in these matters, is not willing to do so. The agent knows that when these people are talking about "cassettes" they're really talking about kilograms of cocaine. That's what this conversation means in theagent's opinion, which is based on his experience in the current investigation as well as previous investigations. It should be described that way. That's all we need. We're not talking about guilt beyond a reasonable doubt here. We're dealing with probabilities. The second problem with an extension is timing. I know everybody is busy, and we're busy here too. If extensions are submitted on the 29th day of the 30 day interception period, it's a burden on everybody to get it approved in time. Giving priority to a last day extension means some other AUSA's wiretap has to wait. We try to meet the demand, but we usually need two or three days lead time. While we don't need it on the 15th or 20th day, if the affidavit comes in on the 25th, 26th, or 27th day with the conversations characterized, recent investigative leads summarized, and the continuing need for interception set out, then we can almost certainly get it signed before the interception period expires. Whether for an original or extension request, each affidavit has to establish probable cause for three things: that a predicate crime, as set forth in the statute [18 people you're naming as violators are indeed committing these offenses; and that the people you are naming are using not just any phone but THAT phone or, if it's a request for a bug, THOSE premises to commit the specific offenses. We apply a standard to determine if there is probable cause. Sometimes it's difficult to meet, but if the two main things we look for are there, everything else usually falls into place and our review can be done quickly. First, you have to have independent evidence (that is, evidence other than pen register information) within the past six months that illegal activity was discussed on
SEPTEMBER 1997UNITED STATES ATTORNEYS' BULLETIN5"I know that OEO's pen register policy has occasionally been a big bone of contention in the field. The policy is in place because we have a responsibility to the American people and to Congress to be very careful in how we apply the statute." Frederick D. Hessthe target phone, or inside the target premises. ForWe have developed ways of making pen registers example, an informant in a drug case says, "I called himwork without what some have called the "dirty" call. To at this number two months agodo that you have to establish a pattern of phone use that and tried to buy drugs," or within the last few months ansupports other information in the affidavit. For example, undercover agent called the target phone to buy drugs, oryour informant tells you that a truck is driven from the agent or informant was standing in the room whereChicago to Texas every three weeks to pick up drugs. the phone is located when they overheard someone usingThe informant says that the subjects always stop in St. it for a drug related conversation. There are a number ofLouis on the way back from Texas and call the target other ways of doing it. For example, somebody's courierphone to report that they're almost home. Physical is arrested and he says, "Yes, I've done this before andsurveillance confirms that the subjects have stopped their every time I get there this is the number I call." At thetruck in St. Louis, and a pen register/trap and trace same time, you have to have a pen register running on thereveals that a call was received over the target phone target phone that shows when the phone was used andfrom St. Louis at this same time. The subjects are later what numbers were called, which may be able to confirmsurveilled as they park the truck at the location where the the calls identified by the informant. In a pen registertarget phone is located. Around this time, the pen register analysis, you can't just list a lot of phone numbers. Yougoes wild indicating calls over the target phone to have to identify the number called and who uses it, andpersons who have drug records and/or are suspected of whether there's evidence that this person is involved indistributing narcotics. Surveillance may then show that the criminal activity. This type of analysis also helps youthere is an increase in visits to the premises that are determine which persons are likely to be intercepted inconsistent with drug trafficking. criminal conversations during the interception period.Now you've established a pattern that tracks what Second, you have to establish that at least oneyour informant told you. You don't have any traditional, pertinent phone call was made over the target phonedirect evidence of phone use, but showing this kind of within the last 21 days and that can be by the use of penpattern between identifiable phone calls and the resulting register information. For example, the pen register showsdrug activity makes it go. There may be other ways of that the target phone has been used recently to contact adoing this as well, and our attorneys work with the known coconspirator. There's a problem when you can'tAssistants in setting out the facts in order to establish get the independent evidence that the target phone haspatterns where possible. been used in furtherance of the crime, and all you haveOn the other hand, if all you have is that the are pen registers that show that alleged drug traffickersinformant says that a subject is a drug dealer, and the are calling other alleged drug traffickers, with nothing tosubject makes 100 or 200 plus calls a month to people show what these conversations may be about.who have drug records, and that's it, that is not enough. I I know that OEO's pen register policy hasdon't know whether that might be enough to stand up in occasionally been a big bone of contention in the field.court, but that's not the standard we apply. We apply a The policy is in place because we have a responsibility tohigher standard because we understand that Congress the American people and to Congress to be very carefulenacted this statute, and Congress can take it away if it in how we apply the statute. We are engaged inperceives that we are not exercising our supervisory role extraordinary invasions of personal privacy and weproperly. It should not be easy to tap a phone, and we have to be as certain as possible that these people areshould not accept the very lowest indeed doing what the affidavit alleges they're doing.
6UNITED STATES ATTORNEYS' BULLETINSEPTEMBER 1997"It should not be easy to tap a phone, and we should not accept the very lowest common denominator that a court might accept for probable cause. . . . We don't ever want to jeopardize the existence of the wiretap laws, and the way we do this is to have a track record of judicious and careful application of the statute and a record of not getting suppressed in court based on a lack of probable cause." Frederick D. Hesscommon denominator that a court might accept forwhat, are in the middle of the case. The problem is probable cause. We need a little more than that. We don't ever want to jeopardize the existence of the wiretap laws, and the way we do this is to have a track record of judicious and careful application of the statute and a record of not getting suppressed in court based on a lack of probable cause. DN: Have you succeeded in this? FH: In every case except for one time. I remember the first time that I met Steve Trott, who, at the time, was the Assistant Attorney General for the Criminal Division (and who is now a court of appeals judge on the Ninth Circuit). He came to the Department in the early '80s from the United States Attorney's office in Los Angeles and, before that, he was in the district attorney's office in Los Angeles. The first question he asked me was, "What is your rate of reversal on probable cause grounds?" At the time, I was able to say that it had never happened. Since then, we have been reversed once on probable cause grounds, but this record is still quite extraordinary. By the way, that's just once in many thousands of cases. DN: What happens in emergency situations? FH: We have two concepts for an emergency situation. One is the statutory concept, which is a 48 hour emergency, in which you get the Attorney General's oral permission to intercept wire or oral communications for 48 hours without a court order. We don't like these, because 48 hours go by so fast that there's a panic at the end to get it to court. The agents, who should be writing their affidavit because they're going to have to file everything within 48 hours, no mattergetting around to writing it. Usually, it's well past the 40th hour before we receive something, and we have to do the whole review process with the clock ticking because the statute mandates suppression of the evidence if the application is not made within the 48 hours. Because of this, we prefer to avoid them, so we limit them to life threatening emergencies, usually a kidnapping or where a murder is believed to be imminent. There still has to be probable cause for the phone in all of this, and you have to show need. If all you can show are phone calls to the house of the kidnapped victim's family, then you don't have a need for the tap because you're listening to these calls with the family's permission, and you can identify the calling phone (through a trap and trace). Instead, you have to be able to show, usually through a pen register, that after the first call was made to the family over the target phone, this same phone was used to call somewhere else maybe to an accomplice. These later calls are the ones that have to exist in order to justify the wiretap. We can't worry too much about establishing patterns or a strict application of the pen register policy when a life is in danger that's a whole different atmosphere. We'll do it, but those situations create enormous problems because agents and Assistants are not disciplined to start writing right away. Instead of this avenue to handle emergencies, we prefer a second course that someone writes a bare bones affidavit as rapidly as possible, and then we move very quickly and expedite the process as much as possible. When we get an affidavit that is in a shape that the Deputy Assistant Attorney General can read it (because we don't have time to write an action memo), we send it forward with the authorizing memo this is assuming that the facts are there. Obviously, this is done only rarely, and not where there's just going to be a couple pound load of cocaine coming in tomorrow, because a load probably came in last week and one is likely to come in again next week. Using just the affidavit and authorizing memo won't fly for that kind of thing. If something huge happens, like a person is in danger of being killed and we believe phone calls are going to be made to hit men, we're going to be up on that phone as soon as possible. Still, as you can see, it makes sense to do most emergencies as an "expedited review" with an affidavit wherever possible, rather than as a statutory, 48 hour emergency. DN: What do you do with this bare bones affidavit when you receive it? Where does it go when it reaches you? How is this procedure different? FH: It's got to meet all of the statutory requirements. The difference is that we call the Terrorism and Violent Crime Section (or whatever section supervises the
SEPTEMBER 1997UNITED STATES ATTORNEYS' BULLETIN7underlying offenses) and get a 1 2 3 okay. We tell peoplenot fall into that category. What I've discovered is that in the field to notify FBI headquarters to get them to signthe agencies often think it's easier to get an emergency off on this because, until they do, it's not going towiretap than it is to do the paperwork up front. They happen. We take the affidavit, call one of the five Deputythink an emergency wiretap requires no paperwork from Assistant Attorneys General, and explain that we cannotthe agents. But a 48 hour emergency means more write an action memorandum and that we will fax thempaperwork and in a much shorter time frame. the affidavit as soon as we get it. We review it here quickly, advise the Assistant what changes or additions are needed, and then we fax or hand carry it to Main Justice. DN: Does this affidavit ever see its way into court? FH: Yes; from the court's point of view it is just like anyAssistant has read this and has tailored the affidavit to other affidavit. The point is that there is an affidavit that's the difference between the 48 hour emergency and this expedited one. With the 48 hour emergency, you have nothing, no paper at all. You have aDN: Do you have any final message for Assistants? conversation between the Director of the FBI and the Attorney General, after everyone underneath says "okay, let's do this," and then within 48 hours you need an application, order, and affidavit for us to review, and all three have to be presented to the court within 48 hours from the time the Attorney General orally authorizes it. Forty eight hours go by fast, and it's invariably a weekend. Whereas, if you write an affidavit that you can give to a judge prior to the tap, you're authorized for up to 30 days. The affidavit in a 48 hour emergency has to be based solely on what the Attorney General knew when she approved the emergency tap. When you go to court after the emergency authorization, you can only tell the judge as much as the Attorney General knew at the time she approved it, because the court has to validate the emergency interception. Now, if you've had some pertinent calls over the tapped phone in between, and you want to keep up on the tap after 48 hours, you need a separate extension request. The information in the extension request will be different than in the 48 hour emergency affidavit. You have to be careful to keep the documents separate because the first area of attack later on is going to be that the 48 hour affidavit contained something that the Attorney General didn't know at the time of her okay. If you have the bare bones affidavit presented to court to start with, you can intercept for up to 30 days and won't have to worry about the 48 hour paperwork and an immediate extension request. MK: We lost one where a judge decided it wasn't a true emergency. We went up on a wiretap pursuant to the emergency provision and, when we applied for the follow up order, the judge ruled that it wasn't an emer gency because we had time to file an affidavit in the first place. Some cases are true emergencies. A child is kidnapped and you've got to move fast. Most cases doFH: I want to make a point also about the Electronic Surveillance Manual. We published the manual originally in 1991 and sent it to every office. It contains draft forms for every conceivable pleading in a wiretap, pen register, you name it. It has been updated, and will soon be available on disk and on USABook. If an meet the requirements in the manual, then it can go through our office very quickly. FH: I've been through this for 15 years and every so often a great case comes along that you'll look back on for years. I'm thinking of the Pizza Connection case in which we worked with Rudy Giuliani when he was United States Attorney in the Southern District of New York. Louis Freeh was the AUSA in charge of the case. Several of these cases have been summarized elsewhere in this publication. (See pages 10 and 11.) These cases are memorable and you know that the wiretap was the thing that made the case. The wiretap is a great investigative tool and it can make your case for you. Cherish it, preserve it, and protect it. Don't ask us to push it beyond where it is supposed to go. Live with our pen register policy, because it has made the judges, Congress, and others happy. We will work with you to try to make it work in your case. This investigative tool is too important to play games with. DN: How do you think the AUSAs are doing on wiretaps? FH: They're doing great!
8UNITED STATES ATTORNEYS' BULLETINSEPTEMBER 1997The information concerning provisions or applications of Title III in the articles by Assistant United States Attorneys in this issue of the United States Attorneys22 Bulletin are the opinion of the authors and not necessarily those of the Office of Enforcement Operations, Criminal Division, or the Department. The Office of Enforcement Operations Its Role in the Area of Electronic Surveillance Prepared by the Staff of the Electronic Surveillance Unit Office of Enforcement Operations Criminal Division he Office of Enforcement Operations (OEO) is theanswering Title III related questions from the field. Once TCriminal Division office responsible for overseeingrecommended by ESU, requests for Title III approval go the use of the most sophisticated investigative toolsto either Associate Director Carla H. Raney, Senior at the Federal Government's disposal in furtherance ofAssociate Director Maureen H. Killion, or Director domestic criminal investigations, including theFrederick D. Hess for final review and recommendation interception of wire, oral, and electronic communicationsby OEO. (See accompanying interview and sidebar.) under Title III of the Omnibus Crime Control and SafeThen the requests are sent to the Assistant Attorney Streets Act of 1968, as amended. As provided for in 18General's (AAG) office for review and possible approval U.S.C. 2516 and Department of Justice (DOJ)by a Criminal Division Deputy Assistant Attorney regulations, the Department's approval must be obtainedGeneral, or by the AAG or Acting AAG. The application before applying to a Federal court for an order authorizing such surveillance. OEO also has a* supervisory role in the use of court authorized video surveillance, as well as the consensual monitoring of non telephonic communications in certain sensitive circumstances. In FY 1996, OEO's Electronic Surveillance Unit (ESU) reviewed over 1,300 electronic surveillance requests a figure almost 30 percent greater than that for FY 1995. The ESU's efforts in supervising the use of electronic surveillance also include providing legal advice to investigators and Assistant United States Attorneys (AUSAs), assisting with trial/appellate briefs and motions when requested, providing training, and assisting and commenting on all electronic surveillance matters that come through the Division. Julie P. Wuslich is the head of ESU and Janet D. Webb is the deputy chief. Nancy Brinkac, Gina DiGiuseppe, Robert Gerardi, Joan Holmes, Paul Joseph, Andrew Simonson, Natalie Thornton, and Steven Wasserman support the Unit and are directly involved in the review of wiretap requests. OEO Senior Counsel Stephen Harwood assists ESU inmust be reviewed and approved by the AAG or Acting AAG if a roving interception is involved. (An in depth description of this approval process appears elsewhere in this issue.) OEO's ability to keep pace with the demands of the United States Attorneys' offices (USAOs) and the Federal investigative agencies in their use of electronic surveillance is constantly being challenged by shifting investigative priorities. An increase in funding for the Drug Enforcement Administration (DEA) or the Organized Crime Drug Enforcement Task Forces, or a policy decision to increase the FBI's involvement in drug investigations, clearly results in more work for OEO's ESU. This is because Federal drug investiga tions which target major drug importation and distribution organizations draw upon wiretaps, because of investigative necessity, as one of their primary investigatory tools. The use of electronic surveillance is likely to increase substantially with the expected creation of dedicated wiretap units in a number of DEA field offices. From ESU's experience, it is clear that even relatively minor changes in electronic surveillance laws can increase substantially the workload of that unit. AUSAs should be aware that the growing number of Title II requests received in OEO has forced the ESU's reviewers to prioritize their caseload to ensure expeditious review of the most time sensitive Title III pleadings. As such, it is imperative that pleadings be submitted to OEO as soon as practicable. This is especially true in the case of requests for extensions ofWhile 18 U.S.C. 2516(3) allows United States Attorneys to * apply for a court order authorizing the interception of electronic communications without the need for prior Criminal Division approval, the United States Attorneys22 Manual, at 9 7.000, etseq., requires prior Division approval for all applications to intercept electronic communications except those involving the interception of alpha numeric pager communications.