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36. Defendant Overhearings

Generally, the government has an obligation pursuant to the provisions of 18 U.S.C. § 3504, to conduct a search of the appropriate agencies and to affirm or deny a claim that a defendant has been illegally overheard. This search is initiated at the request of the United States Attorney, to the Policy and Statutory Enforcement Unit of the Office of Enforcement Operations of the Criminal Division, and the results of the check are reported to that office. The agencies that should be canvassed in most instances are:

1. The United States Secret Service;

2. The Bureau of Alcohol, Tobacco and Firearms;

3. The United States Customs Service;

4. The United States Postal Service;

5. The Internal Revenue Service;

6. The Drug Enforcement Administration; and

7. The Federal Bureau of Investigation.

Other appropriate agencies may be canvassed depending on whether the court has ordered additional agencies searched or if the nature of the charges would make it appropriate to search additional agencies.

Pursuant to 26 U.S.C. 6103(c), the Internal Revenue Service requires the written consent of the taxpayer before any information concerning that taxpayer is released in a non-tax case. Therefore, if a search of the Internal Revenue Service is to be undertaken, the request must be accompanied by a motion signed by either the taxpayer or defense counsel. If a waiver indicating the taxpayer's consent is submitted, the taxpayer must sign that document. In multi-party cases, an indication of consent from each party is required.

Although "mere assertion" has generally been sufficient to raise a claim under 18 U.S.C. 3504 (see In re Evans, 452 F.2d 1239, 1247 (D.C. Cir. 1971), cert. denied, 408 U.S. 930), there is some indication that courts are beginning to raise the threshold. For example, the Fifth Circuit held in United States v. Tucker, 526 F.2d 279, 282 (5th Cir. 1976), cert. denied, 425 U.S. 935, that a defendant's claim that surveillance "may have taken place" was not sufficient; a positive statement that unlawful surveillance had taken place was required. See also In re Millow, 529 F.2d 770, 774-775 (2d Cir. 1976) (claim lacks any colorable basis; objection should be raised to the search on that ground). Further, many courts have adopted the view that the government's response must be measured against the specificity of the allegations of unlawful electronic surveillance and the strength of the support of these allegations. See United States v. Gardner, 611 F.2d 770 (9th Cir. 1980); In re Brummitt, 613 F.2d 62 (5th Cir. 1980), cert. denied, 447 U.S. 907; and United States v. Alvillar, 575 F.2d 1316 (10th Cir. 1978).

The identifying information that should be included with an Electronic Surveillance (Elsur) request consists of the full name of the subject to be checked; all known aliases used by that individual; date and place of birth; race; sex; social security number; and an FBI number, if one is available. The time period for which the check is to be performed, and all addresses and phone numbers, both residential and commercial, in which the subject had a proprietary interest during that period, should also be included.

Elsur requests should be made at the earliest opportunity in order to give the agencies involved sufficient time to conduct a thorough and accurate search. The average time needed to conduct the search is 6-8 weeks. Written requests to conduct an 18 U.S.C. § 3504 search should include all necessary identifying information, a list of agencies to be surveyed other than the usual seven listed above, the time period of the search, the citations of the statutes involved in the investigation or charged in the indictment, any court deadlines, and a copy of the subject's signed motion or waiver. A specific exception to the government's obligation to search has been recognized where there is an inherent impossibility that the evidence to be offered could be the fruits of an illegal surveillance. For example, in In re Dellinger, 357 F. Supp. 949, 958-61 (N.D.Ill. 1973), the charge was contempt of court and the evidence to be offered was a trial transcript. Since there was no possibility that the trial transcript could have resulted in any way from an illegal surveillance, the court held that 18 U.S.C. 3504 did not apply. Should a cases involve evidence that could not possibly be obtained as the result of electronic surveillance, the government should object, preliminarily, to conducting the search for defendant overhearings on that ground.

Even if the answers obtained from the appropriate agencies are all negative, the response to the 18 U.S.C. 3504 motion should not state absolutely that the defendant has never been overheard. The records or indices maintained by the agencies do not necessarily disclose all overhearings, only those that have been identified and catalogued. Accordingly, if the result of the search is negative, the response should state that the search of the appropriate records or indices fails to reveal any overhearing of the defendant.

Where the search reveals that the defendant has been overheard, the agency conducting the search should report all non-classified overhearings or oral acquisitions initiated and conducted in connection with an investigation of criminal activity, to the Office of Enforcement Operations. That office will, in turn, apprise the United States Attorney of the results of the electronic surveillance search as reported by each agency. If the agency conducting the search determines that the electronic surveillance is classified, it should report that overhearing to the Office of Intelligence and Policy Review which will prepare the necessary response, supporting memorandum and affidavits, so that the court may make an in camera determination of the legality of the overhearing.

Updated May 19, 2015