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503
Disclosure
"Disclosure" is defined in 26 U.S.C. §
6103(b)(8) as "the making known to any person
in any manner whatever a return or return
information." The breadth of this definition
invalidates a number of prior access procedures. For
example, upon inquiry by the appropriate Division,
Although the definition of disclosure does not
appear to admit many exceptions, the return to the
supplier of information supplied to
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October 1997 |
505
Access to Returns and Return Information
Section 6103(i) of Title 26 of the United States
Code sets forth the conditions which govern
Disclosure of tax returns and taxpayer return
information must be secured through the issuance of
an ex parte order by a federal district judge or
magistrate judge under 26 U.S.C. § 6103(i)(1). See
this Manual
at 506. Such orders automatically include
return information other than taxpayer return
information, i.e., information about a taxpayer from
a third party. Thus, when filing an application
under 26 U.S.C. § 6103(i)(1), it is not necessary
to make a separate request under 26 U.S.C. §
6103(i)(2) (as discussed at 507).
If, however, only return information other than
taxpayer return information is sought, it may be
obtained pursuant to a written request under 26
U.S.C. § 6103(i)(2). See this Manual
at 507.
Section 6103(i)(3) of Title 26 authorizes
Section 6103(i)(4) of Title 26 governs the use of
information obtained under 26 U.S.C. § 6103(i)(1),
(i)(2), or (i)(3) in judicial or administrative
proceedings. See this Manual
at 509. It should be noted, however,
that, although 26 U.S.C. § 6103(i)(4) authorizes
use in civil forfeitures related to the enforcement
of federal criminal statutes, this use alone does
not authorize disclosure under 26 U.S.C. §
6103(i)(1) or (i)(2). Thus, caution should be
exercised that any returns or return information
needed for a civil forfeiture are obtained under the
appropriate procedure before termination of the
criminal enforcement proceeding. Criminal
enforcement proceedings should not be initiated,
however, solely as a means of obtaining return
information which would otherwise not be available
for use in a civil forfeiture.
Section 6103(i)(5) of Title 26 governs the
disclosure of a return or return information for the
purpose of locating a fugitive from justice. See
this Manual
at 510.
Section 6103(i)(6) of Title 26 provides that the
Secretary shall not disclose any return or return
information under the specified paragraphs and
subparagraphs of 26 U.S.C. § 6103(i) if he/she
determines "that such disclosure would identify
a confidential informant or seriously impair a civil
or criminal tax investigation."
The Internal Revenue Service has offered the
services of the local District Disclosure Officer to
each United States Attorney for the purpose of
briefing the United States Attorney and his/her
assistants on the procedures to be followed in
obtaining returns and return information under the
revised statute. Each United States Attorney is
urged to respond to this offer.
In addition, the Criminal Division, through its
Office of Enforcement Operations, will be available
to lend assistance and answer questions. For such
assistance, call Special Counsel David Simonson at
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October 1997 |
506
Disclosure Under 26 U.S.C. § 6103(i)(1)
Section 6103(i)(1) of Title 26 authorizes
application for an ex parte order for the disclosure
of "any return or return information to
officers or employees of any federal agency who are
personally and directly engaged in" the
investigation, or preparation for prosecution, of
violations of specifically designated federal
criminal statutes other than ones involving tax
administration. The application must explain the
intended use.
Applications for the ex parte order authorized by
this paragraph may be authorized by: the Attorney
General, the Deputy Attorney General, the Associate
Attorney General, any Assistant Attorney General, a
United States Attorney, any special prosecutor
appointed under 28 U.S.C. § 593, or any attorney in
charge of a Criminal Division organized crime strike
force established pursuant to 28 U.S.C. § 510. It
is anticipated that most applications will be
authorized by United States Attorneys or Strike
Force Chiefs. See the list of forms in this Manual
at 514.
Prior to the submission of this application,
however, the responsible official should notify the
appropriate
1.
Assemble the requested information; and
2.
Make any appropriate determination
provided for in 26 U.S.C. § 6103(i)(6), (see
this Manual
at 511 regarding confidential informants
and impairment of investigations).
Applications may be submitted to either federal
magistrate judges or federal district court judges.
Applicants must demonstrate that:
1.
There is reasonable cause to believe
that a specific federal crime has occurred;
2.
There is reasonable cause to believe
that the tax information sought is relevant to the
offenses;
3.
The information will be used
exclusively in a federal criminal investigation or
proceeding concerning such act (except as provided
in 26 U.S.C. § 6103(i)(4), see this Manual
at 509; and
4.
The information cannot reasonably be
obtained from another source.
Language in the application and order should
track the statutory language as closely as possible.
Because 26 U.S.C. § 6103(i)(1) refers to disclosure
for the "enforcement of a specifically
designated federal criminal statute,"
applicants should list every statutory violation for
which "reasonable cause" exists.
Applicants should file simultaneously with the
application a motion requesting the court to seal
the application and its order granting or denying
the application. United States Attorneys should
notify the Internal Revenue Service whenever a
motion to seal is granted, and whenever the records
are subsequently unsealed. Such motions are normally
not necessary when an applicant determines (in
consultation with
As noted in this Manual
at 605, 26 U.S.C. § 6103(i)(1)
applications now cover return information other than
taxpayer return information (as well as all return
and taxpayer return information). Therefore, when
such an application has been made, it is not
necessary to make a separate 26 U.S.C. § 6103(i)(2)
request for return information other than taxpayer
return information.
Disclosures under this paragraph are limited by
the restrictions in 26 U.S.C. §
6103(i)(6)(confidential informants; impairment of
investigations). See this Manual
at 511.
See this Manual
at 514 for sample applications.
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October 1997 |
Criminal
Resource Manual 506 |
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506 Disclosure Under 26 U.S.C. § 6103(i)(1)
Section 6103(i)(1) of Title 26 authorizes
application for an ex parte order for the disclosure
of "any return or return information to
officers or employees of any federal agency who are
personally and directly engaged in" the
investigation, or preparation for prosecution, of
violations of specifically designated federal
criminal statutes other than ones involving tax
administration. The application must explain the
intended use.
Applications for the ex parte order authorized by
this paragraph may be authorized by: the Attorney
General, the Deputy Attorney General, the Associate
Attorney General, any Assistant Attorney General, a
United States Attorney, any special prosecutor
appointed under 28 U.S.C. § 593, or any attorney in
charge of a Criminal Division organized crime strike
force established pursuant to 28 U.S.C. § 510. It
is anticipated that most applications will be
authorized by United States Attorneys or Strike
Force Chiefs. See the list of forms in this Manual
at 514.
Prior to the submission of this application,
however, the responsible official should notify the
appropriate
1.
Assemble the requested information; and
2.
Make any appropriate determination
provided for in 26 U.S.C. § 6103(i)(6), (see
this Manual
at 511 regarding confidential informants
and impairment of investigations).
Applications may be submitted to either federal
magistrate judges or federal district court judges.
Applicants must demonstrate that:
1.
There is reasonable cause to believe
that a specific federal crime has occurred;
2.
There is reasonable cause to believe
that the tax information sought is relevant to the
offenses;
3.
The information will be used
exclusively in a federal criminal investigation or
proceeding concerning such act (except as provided
in 26 U.S.C. § 6103(i)(4), see this Manual
at 509; and
4.
The information cannot reasonably be
obtained from another source.
Language in the application and order should
track the statutory language as closely as possible.
Because 26 U.S.C. § 6103(i)(1) refers to disclosure
for the "enforcement of a specifically
designated federal criminal statute,"
applicants should list every statutory violation for
which "reasonable cause" exists.
Applicants should file simultaneously with the
application a motion requesting the court to seal
the application and its order granting or denying
the application. United States Attorneys should
notify the Internal Revenue Service whenever a
motion to seal is granted, and whenever the records
are subsequently unsealed. Such motions are normally
not necessary when an applicant determines (in
consultation with
As noted in this Manual
at 605, 26 U.S.C. § 6103(i)(1)
applications now cover return information other than
taxpayer return information (as well as all return
and taxpayer return information). Therefore, when
such an application has been made, it is not
necessary to make a separate 26 U.S.C. § 6103(i)(2)
request for return information other than taxpayer
return information.
Disclosures under this paragraph are limited by
the restrictions in 26 U.S.C. §
6103(i)(6)(confidential informants; impairment of
investigations). See this Manual
at 511.
See this Manual
at 514 for sample applications.
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October 1997 |
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507
Disclosure Under 26 U.S.C. § 6103(i)(2)
The procedure established by this paragraph is to
be utilized only when the requester's sole interest
is return information other than taxpayer return
information. See this Manual
at 506.
Written requests for this kind of information may
be addressed to the appropriate
The uses authorized for such information are identical to those for
information obtained under 26 U.S.C. § 6103(i)(1)
and the request must explain the intended use. See
this Manual
at 506.
The request must set forth:
1.
The taxpayer's name and address;
2.
The taxable period(s) for which
information is sought;
3.
The statutory authority under which the
enforcement proceeding is being conducted; and
4.
The specific reason or reasons why the
information sought is relevant to the enforcement
proceeding.
Disclosures under this paragraph are limited by
the restrictions in 26 U.S.C. §
6103(i)(6)(confidential informants; impairment of
investigations). See this Manual
at 511.
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October 1997 |
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508
Disclosure Under 26 U.S.C. § 6103(i)(3)
This paragraph authorizes
If there is return information eligible for
disclosure under the above criteria, the taxpayer's
identity may also be disclosed. Disclosures under
this subparagraph are limited by the restrictions in
26 U.S.C. § 6103(i)(6)(confidential informants;
impairment of investigations). See this Manual
at 511.
In practice all 26 U.S.C. § 6103(i)(3)
disclosures are made to the Office of Enforcement
Operations (OEO) as the designated representative of
the Attorney General. OEO then refers the material,
as appropriate, within the Department of Justice
(including Offices of the United States Attorneys).
If, however, the information should go to another
agency (e.g., the Social Security Administration),
OEO must return it to
1.
Any federal or state law enforcement
agency to the extent necessary to apprise it of
"circumstances involving an imminent danger of
death or physical injury to any individual"; see
26 U.S.C. § 6103(i)(3)(B)(i), and
2.
Any federal law enforcement agency to
apprise it of "circumstances involving the
imminent flight of any individual from Federal
prosecution." See 26 U.S.C. §
6103(i)(3)(B)(ii).
Disclosures for these two purposes are not
limited by the restrictions in 26 U.S.C. §
6103(i)(6)(confidential informants; impairment of
investigations). See this Manual
at 511.
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October 1997 |
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509
Use of Certain Disclosed Returns and Return
Information in Judicial or Administrative
Proceedings, 26 U.S.C. § 6103(i)(4)
This paragraph governs disclosures which agencies
may make of returns or return information obtained
from
No finding of relevance is required for
disclosure of return information other than taxpayer
return information in any proceeding described above
when the
No return or return information is to be admitted
into evidence if
Admission into evidence in violation of this
prohibition does not constitute reversible error.
The Criminal Division has interpreted this
language to include use in any post-conviction
proceeding resulting from the original conviction.
The justifying theory is that enforcement continues
until the defendant is no longer subject to the
custody of the Attorney General. Thus, the United
States Parole Commission may use tax material in a
hearing to determine whether to terminate parole
supervision pursuant to 18 U.S.C. § 4211(c).
Moreover, such use is appropriate even though it may
not, technically, amount to an introduction
"into evidence." For example, tax material
may be provided to the court for its use in
sentencing pursuant to Rule 32(c) of the Federal
Rules of Criminal Procedure.
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October 1997 |
510
Disclosure to Locate Fugitives from Justice Under 26
U.S.C. § 6103(i)(5)
Any official who may authorize an application to
a district judge or magistrate-judge under 26 U.S.C.
§ 6103(i)(1) (see this Manual
at 506) may also authorize one under
subsection (i)(5) for the disclosure of returns and
return information to the extent necessary to locate
a fugitive. The advantage of proceeding under
subsection (i)(5), when appropriate, rather than 26
U.S.C. § 6103(i)(1) is that less is required to
justify granting the application. Applicants must
establish only that:
1.
A federal arrest warrant for commission
of a federal felony has been issued for the taxpayer
who is now a fugitive;
2.
The return or return information is
being sought solely for purposes of locating the
taxpayer; and
3.
There is "reasonable cause"
to believe that the return or return information
will further efforts to locate the taxpayer.
It should be noted that this paragraph authorizes
disclosure only of returns and return information of
the individual who is a fugitive.
Disclosures under this paragraph are limited by
the restrictions in 26 U.S.C. §
6103(i)(6)(confidential informants; impairment of
investigations). See this Manual
at 511.
See this Manual
at 520 for sample application to be used
when requesting returns and return information to
locate a fugitive from justice pursuant to 26 U.S.C.
§ 6103(i)(5).
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October 1997 |
511
Restrictions on Disclosures, 26 U.S.C. § 6103(i)(6)
This paragraph prohibits
These restrictions are administered solely by
The exception to their application is an
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October 1997 |
512
Communication with
IRS
Personnel
Section 6103 of Title 26 of the United States
Code governs not only access to tangible tax
material (e.g., returns,
Under either 26 U.S.C. § 6103(i)(1) or (i)(2),
communication between a prosecutor and
Absent a 26 U.S.C. § 6103(i)(1) court order or a
26 U.S.C. § 6103(i)(2) request,
Under 26 U.S.C. § 6103(i)(3)(A), 26 U.S.C. §
6103 material may be disclosed by
By contrast, 26 U.S.C. § 6103(i)(3)(B) does not
require that disclosures be in writing, which is
sensible since it pertains to emergency
circumstances. The provision appears to be geared to
supplying investigative leads calling for an
immediate response by law enforcement authorities,
and thus communications between
Under 26 U.S.C. § 6103(k)(6), 26 U.S.C. § 6103
material may be disclosed to a prosecutor by an
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October 1997 |
513
Utilization of
IRS
Personnel
An
The prosecutor seeking such
1.
A request for the assistance of
2.
Reliance on
3.
Use of
Examples of situations in which the prosecutor
might seek
1.
An investigation involving political
corruption centers around a corporate bookkeeping
system suspected of containing camouflaged payoff
entries; and
2.
An informant wishes to provide evidence
of a non-tax crime but refuses to deal with anyone
other than a trusted
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October 1997 |
9-13.100
Out of Court Identification Procedures
9-13.200
Communications with Represented Persons
9-13.300
Polygraphs -- Department Policy
9-13.400
News Media Subpoenas -- Subpoenas for News Media
Telephone Toll Records -- Interrogation, Indictment,
or Arrest of Members of the News Media
9-13.410
Guidelines for Issuing Grand Jury or Trial Subpoena
to Attorneys for Information Relating to the
Representation of Clients
9-13.420 Searches of Subject Attorneys' Offices
9-13.500
International Legal Assistance
9-13.510
Obtaining Evidence Abroad -- General Considerations
9-13.512 Intended Use of the Evidence
9-13.514
Time Required
9-13.516
Cost of Obtaining Evidence
9-13.520
Methods of Obtaining Evidence from Abroad
9-13.525
Subpoenas
9-13.526
Forfeiture of Assets Located in Foreign Countries
9-13.530
Special Considerations -- Translations
9-13.534
Foreign Travel by Prosecutors
9-13.535
Depositions
9-13.540
Assisting Foreign Prosecutors
9-13.600
Use of Hypnosis
9-13.800
Access to and Disclosure of Financial Records
9-13.900
Access to and Disclosure of Tax Returns in a Non-tax
Criminal Case
9-13.100
Out of Court Identification Procedures
See the Criminal
Resource Manual at 238 et seq. for a
discussion of the law on lineups and showups,
photographic lineups, fingerprinting, handwriting,
voice exemplars and voice prints and other physical
evidence issues.
9-13.200 Communications with Represented Persons
Department attorneys are governed in criminal and
civil law enforcement investigations and proceedings
by the relevant rule of professional conduct that
deals with communications with represented persons.
28 U.S.C. Section 530B. In determining which rule of
professional conduct is relevant, Department
attorneys should be guided by 28 C.F.R. Part 77
(1999). Department attorneys are strongly encouraged
to consult with their Professional Responsibility
Officers or supervisors—and, if appropriate, the
Professional Responsibility Advisory Office—when
there is a question regarding which is the relevant
rule or the interpretation or application of the
relevant rule. See also the Criminal
Resource Manual at 296 through 298
9-13.300 Polygraphs -- Department Policy
The Department opposes all attempts by defense
counsel to admit polygraph evidence or to have an
examiner appointed by the court to conduct a
polygraph test. Government attorneys should refrain
from seeking the admission of favorable examinations
that may have been conducted during the
investigatory stage for the following reasons.
Though certain physiological reactions such as a
fast heart beat, muscle contraction, and sweaty
palms are believed to be associated with deception
attempts, they do not, by themselves, indicate
deceit. Anger, fear, anxiety, surprise, shame,
embarrassment, and resentment can also produce these
same physiological reactions. S. Rep. No. 284, 100th
Cong., 2d Sess. 3-5 (1988). Moreover, an individual
is less likely to produce these physiological
reactions if he is assured that the results of the
examination will not be disclosed without his
approval. Given the present theoretical and
practical deficiencies of polygraphs, the government
takes the position that polygraph results should not
be introduced into evidence at trial. On the other
hand, in respect to its use as an investigatory
tool, the Department recognizes that in certain
situations, as in testing the reliability of an
informer, a polygraph can be of some value.
Department policy therefore supports the limited use
of t he polygraph during investigations. This
limited use should be effectuated by using the
trained examiners of the federal investigative
agencies, primarily the FBI, in accordance with
internal procedures formulated by the agencies. E.g.,
R. Ferguson, Polygraph Policy Model for Law
Enforcement, FBI Law Enforcement Bulletin,
pages 6-20 (June 1987). The case agent or prosecutor
should make clear to the possible defendant or
witness the limited purpose for which results are
used and that the test results will be only one
factor in making a prosecutive decision. If the
subject is in custody, the test should be preceded
by Miranda warnings. Subsequent admissions or
confessions will then be admissible if the trial
court determines that the statements were voluntary.
Wyrick v. Fields, 459
See the Criminal
Resource Manual at 259 et seq. for a
discussion of case law on polygraph examinations.
9-13.400 News Media Subpoenas -- Subpoenas for News Media Telephone
Toll Records -- Interrogation, Indictment, or Arrest
of Members of the News Media
Procedures and standards regarding the issuance
of subpoenas to members of the news media, subpoenas
for the telephone toll records of members of the
news media, and the interrogation, indictment, or
arrest of members of the news media are set forth in
28 C.F.R. § 50.10.
It is the Department's policy to protect freedom of the press, the
news gathering function, and news media sources.
Therefore, all attorneys contemplating the issuance
of such subpoenas, the interrogation of a member of
the new media, or the initiation of criminal
proceedings against a member of the news media
should be aware of the requirements of 28 C.F.R. § 50.10.
Except in cases involving exigent circumstances,
such as where immediate action is required to avoid
the loss of life or the compromise of a security
interest, the express approval of the Attorney
General is necessary prior to the interrogation,
indictment, or arrest of a member of the news media
for an offense which he is suspected of having
committed during the course of, or arising out of,
the coverage or investigation of a news story, or
committed while engaged in the performance of his
official duties as a member of the news media. The
Attorney General's authorization is also required
before issuance of any subpoena to a member of the
news media, except in those cases where both a media
representative agrees to provide the material sought
and that material has been published or
broadcast. In addition, the Attorney General's
permission is required before the issuance of a
subpoena for the telephone toll records of a member
of the news media. Failure to obtain the pri or
approval of the Attorney General, when required, may
constitute grounds for disciplinary action.
Whenever the government seeks the Attorney
General's authorization pursuant to 28 C.F.R. § 50.10
in a case or matter under the supervision of the
Criminal Division, the Policy and Statutory
Enforcement Unit of the Office of Enforcement
Operations should be contacted at
In cases or matters under the supervision of
other Divisions of the Department of Justice, the
appropriate Division should be contacted.
9-13.410 Guidelines for Issuing Grand Jury or Trial Subpoena to
Attorneys for Information Relating to the
Representation of Clients
A.
Clearance with the Criminal Division
. Because of the potential effects upon an
attorney-client relationship that may result from
the issuance of a subpoena to an attorney for
information relating to the attorney's
representation of a client, the Department exercises
close control over such subpoenas. All such
subpoenas (for both criminal and civil matters) must
first be authorized by the Assistant Attorney
General for the Criminal Division before they may
issue.
B.
Preliminary Steps
. When determining whether to issue a subpoena to
an attorney for information relating to the
attorney's representation of a client, the Assistant
United States Attorney must strike a balance between
an individual's right to the effective assistance of
counsel and the public's interest in the fair
administration of justice and effective law
enforcement. To that end, all reasonable attempts
shall be made to obtain the information from
alternative sources before issuing the subpoena to
the attorney, unless such efforts would compromise
the investigation or case. These attempts shall
include reasonable efforts to first obtain the
information voluntarily from the attorney, unless
such efforts would compromise the investigation or
case, or would impair the ability to subpoena the
information from the attorney in the event that the
attempt to obtain the information voluntarily proves
unsuccessful.
C.
Evaluation of the Request
. In considering a request to approve the
issuance of a subpoena to an attorney for
information relating to the representation of a
client, the Assistant Attorney General of the
Criminal Division applies the following principles:
o
The information sought shall not be
protected by a valid claim of privilege.
o
All reasonable attempts to obtain the
information from alternative sources shall have
proved to be unsuccessful.
o
In a criminal investigation or
prosecution, there must be reasonable grounds to
believe that a crime has been or is being committed,
and that the information sought is reasonably needed
for the successful completion of the investigation
or prosecution. The subpoena must not be used to
obtain peripheral or speculative information.
o
In a civil case, there must be
reasonable grounds to believe that the information
sought is reasonably necessary to the successful
completion of the litigation.
o
The need for the information must
outweigh the potential adverse effects upon the
attorney-client relationship. In particular, the
need for the information must outweigh the risk that
the attorney may be disqualified from representation
of the client as a result of having to testify
against the client.
o
The subpoena shall be narrowly drawn
and directed at material information regarding a
limited subject matter and shall cover a reasonable,
limited period of time.
See also the Criminal
Resource Manual at 263.
D.
Submitting the Request.
Requests for authorization are submitted on a
standardized form to the Witness Immunity Unit,
Office of Enforcement Operations, Criminal Division.
(This form, "Request for Authorization To Issue
A Subpoena To An Attorney for Information Relating
To Representation of A Client," is set out in
the Criminal
Resource Manual at 264). When documents
are sought in addition to the testimony of the
attorney witness, a draft of the subpoena duces
tecum
must accompany the completed form.
The completed form and draft subpoena may be
mailed to the Witness Immunity Unit,
- No
Rights Created by Guidelines:
These guidelines are set forth solely for the
purpose of internal Department of Justice guidance.
They are not intended to, do not, and may not be
relied upon to create any rights, substantive or
procedural, enforceable at law by any party in any
matter, civil or criminal, nor do they place any
limitations on otherwise lawful investigative or
litigative prerogatives of the Department of
Justice.
9-13.420
Searches of Premises of Subject Attorneys
NOTE:
For purposes of this policy only,
"subject" includes an attorney who is a
"suspect, subject or target," or an
attorney who is related by blood or marriage to a
suspect, or who is believed to be in possession of
contraband or the fruits or instrumentalities of a
crime. This policy also applies to searches of
business organizations where such searches involve
materials in the possession of individuals serving
in the capacity of legal advisor to the
organization. Search warrants for "documentary
materials" held by an attorney who is a
"disinterested third party" (that is, any
attorney who is not a subject) are governed by 28
C.F.R. 59.4 and USAM
9-19.221 et seq. See
also 42 U.S.C. Section 2000aa-11(a)(3).
There are occasions when effective law
enforcement may require the issuance of a search
warrant for the premises of an attorney who is a
subject of an investigation, and who also is or may
be engaged in the practice of law on behalf of
clients. Because of the potential effects of this
type of search on legitimate attorney-client
relationships and because of the possibility that,
during such a search, the government may encounter
material protected by a legitimate claim of
privilege, it is important that close control be
exercised over this type of search. Therefore, the
following guidelines should be followed with respect
to such searches:
A.
Alternatives to Search Warrants. In order
to avoid impinging on valid attorney-client
relationships, prosecutors are expected to take the
least intrusive approach consistent with vigorous
and effective law enforcement when evidence is
sought from an attorney actively engaged in the
practice of law. Consideration should be given to
obtaining information from other sources or through
the use of a subpoena, unless such efforts could
compromise the criminal investigation or
prosecution, or could result in the obstruction or
destruction of evidence, or would otherwise be
ineffective.
NOTE: Prior approval must be obtained from the Assistant Attorney
General for the Criminal Division to issue a
subpoena to an attorney relating to the
representation of a client. See
USAM
9-13.410.
B.
Authorization
by
C.
Prior
Consultation.
In addition to obtaining approval from the
NOTE: Attorneys are encouraged to consult with the Criminal
Division as early as possible regarding a possible
search of an attorney's office. Telephone No.
To facilitate the consultation, the prosecutor
should submit the attached form (see
Criminal
Resource Manual at 265) containing
relevant information about the proposed search along
with a draft copy of the proposed search warrant,
affidavit in support thereof, and any special
instructions to the searching agents regarding
search procedures and procedures to be followed to
ensure that the prosecution team is not
"tainted" by any privileged material
inadvertently seized during the search. This
information should be submitted to the Criminal
Division through the Office of Enforcement
Operations. This procedure does not preclude any
If exigent circumstances prevent such prior
consultation, the Criminal Division should be
notified of the search as promptly as possible. In
all cases, the Criminal Division should be provided
as promptly as possible with a copy of the
judicially authorized search warrant, search warrant
affidavit, and any special instructions to the
searching agents.
The Criminal Division is committed to ensuring
that consultation regarding attorney search warrant
requests will not delay investigations. Timely
processing will be assisted if the Criminal Division
is provided as much information about the search as
early as possible. The Criminal Division should also
be informed of any deadlines.
D.
Safeguarding
Procedures and Contents of the Affidavit. Procedures should be designed to ensure
that privileged materials are not improperly viewed,
seized or retained during the course of the search.
While the procedures to be followed should be
tailored to the facts of each case and the
requirements and judicial preferences and precedents
of each district, in all cases a prosecutor must
employ adequate precautions to ensure that the
materials are reviewed for privilege claims and that
any privileged documents are returned to the
attorney from whom they were seized.
E.
Conducting
the Search.
The search warrant should be drawn as specifically
as possible, consistent with the requirements of the
investigation, to minimize the need to search and
review privileged material to which no exception
applies.
While every effort should be made to avoid
viewing privileged material, the search may require
limited review of arguably privileged material to
ascertain whether the material is covered by the
warrant. Therefore, to protect the attorney-client
privilege and to ensure that the investigation is
not compromised by exposure to privileged material
relating to the investigation or to defense
strategy, a "privilege team" should be
designated, consisting of agents and lawyers not
involved in the underlying investigation.
Instructions should be given and thoroughly
discussed with the privilege team prior to the
search. The instructions should set forth procedures
designed to minimize the intrusion into privileged
material, and should ensure that the privilege team
does not disclose any information to the
investigation/prosecution team unless and until so
instructed by the attorney in charge of the
privilege team. Privilege team lawyers should be
available either on or off-site, to advise the
agents during the course of the search, but should
not participate in the search itself.
The affidavit in support of the search warrant
may attach any written instructions or, at a
minimum, should generally state the government's
intention to employ procedures designed to ensure
that attorney-client privileges are not violated.
If it is anticipated that computers will be
searched or seized, prosecutors are expected to
follow the procedures set forth in Federal
Guidelines for Searching and Seizing Computers
(July 1994), published by the Criminal Division
Office of Professional Training and Development.
F.
Review
Procedures.
The following review procedures should be discussed
prior to approval of any warrant, consistent with
the practice in your district, the circumstances of
the investigation and the volume of materials
seized.
o
Who will conduct the review, i.e., a privilege
team, a judicial officer, or a special master.
o
Whether all documents will be submitted to a
judicial officer or special master or only those
which a privilege team has determined to be arguably
privileged or arguably subject to an exception to
the privilege.
o
Whether copies of all seized materials will be
provided to the subject attorney (or a legal
representative) in order that: a) disruption of the
law firm's operation is minimized; and b) the
subject is afforded an opportunity to participate in
the process of submitting disputed documents to the
court by raising specific claims of privilege. To
the extent possible, providing copies of seized
records is encouraged, where such disclosure will
not impede or obstruct the investigation.
o
Whether appropriate arrangements have been made
for storage and handling of electronic evidence and
procedures developed for searching computer data
(i.e., procedures which recognize the universal
nature of computer seizure and are designed to avoid
review of materials implicating the privilege of
innocent clients).
These guidelines are set forth solely for
the purpose of internal Department of Justice
guidance. They are not intended to, do not, and may
not be relied upon to create any rights, substantive
or procedural, enforceable at law by any party in
any matter, civil or criminal, nor do they place any
limitations on otherwise lawful investigative or
litigative prerogatives of the Department of
Justice.
See
the Criminal
Resource Manual at 265, for an attorney
office search warrant form.
9-13.500 International Legal Assistance
The Criminal Division's Office of
International Affairs
Any proposed contact with persons, other
than
Before attempting to do any act outside
the
See
the Criminal
Resource Manual at 266, for additional
background regarding the Office of International
Affairs.
9-13.510 Obtaining Evidence Abroad -- General Considerations
Because virtually every nation enacts laws
to protect its sovereignty and can react adversely
to American law enforcement efforts to gather
evidence within its borders as a violation of that
sovereignty, contact the Office of International
Affairs initially to evaluate methods for securing
assistance from abroad and to select an appropriate
one. See the Criminal
Resource Manual at 267 et seq.
9-13.512 Intended Use of the Evidence
When a country grants assistance for a
particular purpose, contact the Office of
International Affairs (OIA) before using it for a
different purpose. OIA will determine whether it can
be used for a different purpose without the express
permission of the country that provided it and, if
not, for guidance in securing such permission. See
the Criminal
Resource Manual at 269.
9-13.514 Time Required
Contact the Office of International
Affairs as soon as it appears that assistance from
overseas will be needed. See
the Criminal
Resource Manual at 271-272.
9-13.516 Cost of Obtaining Evidence
Be sure funds are available before making
a costly request. See
the Criminal
Resource Manual at 273.
9-13.520 Methods of Obtaining Evidence from Abroad
There are many different methods of
obtaining evidence from abroad, including the use of
letters rogatory, treaty requests, executive
agreements and memoranda of understanding, subpoenas
(seeUSAM
9-13.525), and other informal means.
Contact the Office of International Affairs before
choosing a method. See
the Criminal
Resource Manual at 274-279.
9-13.525 Subpoenas
Since the use of unilateral compulsory
measures can adversely affect United States law
enforcement relationship with a foreign country, all
Federal prosecutors must obtain written approval
through the Office of International Affairs (OIA)
before issuing any subpoenas to persons or entities
in the United States for records located abroad. See
the Criminal
Resource Manual at 279, for a description
of the requirements of requesting such approval. OIA
must also be consulted prior to initiating
enforcement proceedings relating to such subpoenas.
OIA's approval must be obtained prior to
serving a subpoena ad testificandum on an officer
of, or attorney for, a foreign bank or corporation
who is temporarily in or passing through the United
States when the testimony sought relates to the
officer's or attorney's duties in connection with
the operation of the bank or corporation.
9-13.526 Forfeiture of Assets Located in Foreign Countries
International and domestic coordination
are needed in matters relating to the forfeiture of
assets located in foreign countries. See the Criminal
Resource Manual at 280. Consequently, any
attorney for the Federal government who plans to
file a civil forfeiture action for assets located in
another country pursuant to 28 U.S.C. § 1355(b)(2)
is directed to notify the Office of International
Affairs (OIA) of the Criminal Division before taking
such action. Notification to OIA should be in
writing and include the information listed in the Criminal
Resource Manual at 280.
Within ten days of receipt of such
notification, OIA, in consultation with the Asset
Forfeiture and Money Laundering Section, will review
the notification information, consult with foreign
and U.S. authorities as appropriate to the facts and
circumstances of the specific proposal, and
communicate its findings to the attorney for the
Federal government who submitted the notification.
Attorneys for the Federal government are
also directed to consult with the OIA before taking
steps to present to a foreign government, for
enforcement or recognition, any civil or criminal
forfeiture order entered in the
In cases where it appears that the
property in question is likely to be removed,
destroyed, or dissipated so as to defeat the
possibility of the forfeiture under U.S. law, the
attorney for the Federal government may, of course,
request the OIA to seek the assistance of the
authorities of the foreign government where the
property is located in seizing or taking whatever
action is necessary and appropriate to preserve the
property for forfeiture.
9-13.530 Special Considerations -- Translations
In every case requiring a translation,
prosecutors must reach a clear understanding with
the Office of International Affairs (OIA) about who
will secure the translation and send it overseas.
Generally, arrangements for translation must be made
and paid for by the
9-13.534 Foreign Travel by Prosecutors
Foreign travel must be authorized in
advance either by the Executive Office for
9-13.535 Depositions
If an essential witness who is not subject
to a subpoena (see
USAM
9-13.525) is unwilling to come to the
9-13.540 Assisting Foreign Prosecutors
To avoid undercutting Departmental policy,
when prosecutors receive requests for assistance
from foreign prosecutors, prosecutors should discuss
all such requests with the Office of International
Affairs before executing. See
the Criminal
Resource Manual at 286.
Costs of executing foreign requests
(including court reporter's fees) are the
responsibility of the country making the request
unless an applicable treaty requires the
9-13.600 Use of Hypnosis
For a discussion of the law relating to
the use of hypnosis, see the Criminal
Resource Manual at 287-294.
9-13.800 Access to and Disclosure of Financial Records
The Right to Financial Privacy Act of
1978, 12 U.S.C. § 3401 et seq.,
governs federal agencies' access to and disclosure
of all "financial records" of any
"customer" from a "financial
institution." This statute sets forth a complex
set of procedures which
For additional information, see the Treatise
on the Right to Financial Privacy Act in the Criminal
Resource Manual at 400, or contact the
Policy and Statutory Enforcement Unit of the Office
of Enforcement Operations.
9-13.900 Access to and Disclosures of Tax Returns in a Non-tax
Criminal Case
Title 26 U.S.C. § 6103
prohibits disclosure of tax returns and tax return
information except as specifically provided in
§ 6103, or other sections of the Code.
Among the disclosures authorized are those in 26 U.S.C. § 6103(i)
concerning access to returns and return information
by certain Department of Justice personnel for use
in the investigation and prosecution of federal
criminal statutory violations and related civil
forfeitures not involving tax administration. The
access procedures and use restrictions in sucha case
are set forth in the Criminal
Resource Manual at 501 et seq.
Applications for the ex parte order
authorized by this paragraph may be authorized by:
the Attorney General, the Deputy Attorney General,
the Associate Attorney General, any Assistant
Attorney General, a United States Attorney, any
special prosecutor appointed under 28 U.S.C. § 593,
or any attorney in charge of a Criminal Division
organized crime strike force established pursuant to
28 U.S.C. § 510. It is anticipated
that most applications will be authorized by
It is the Department's policy that an Ex
Parte Application For Returns and Return Information
be filed under seal. Prosecutors should file the
motion to seal simultaneously with the Application.
The motion should request the court to seal the
application and its order granting or denying the
application.
May
2005