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Criminal Resource Manual

701. Procedures for Securing Witness Protection

See USAM 9-21.400.

All requests must include the following information:

  1. Identification of the Witness. Name, address, date and place of birth, sex, race, citizenship, and FBI or state identification numbers of witness. Attach copies of witness's record of arrests and convictions, if any.

  2. Significance of the Case(s). Importance of the case(s), and names, locations and importance of prospective defendants, as well as the expected effect on the community by convicting the defendants. Describe the illegal organization in which the defendants are participants and their respective roles. Defendants' arrest and conviction records must be attached.

    U.S. Attorney's Office (USAO) numbers for all cases in which the witness is expected to testify must be included, along with an indication as to whether the case is an Organized Crime Drug Enforcement Task Force case.

  3. Expected Testimony of the Witness. A summary of the testimony to be provided by the witness, as well as why it is significant and essential to a successful prosecution. Copies of indictments, complaints, prosecutive memoranda, etc., must be attached fully describing the nature of the case. List all cases in which the witness is expected to testify. List all agencies that may make use of the witness's information.

  4. Trial Dates. A realistic estimate of the trial date and trial completion date (with respect to each trial in which the witness is expected to testify).

  5. Other Witnesses. The names of individuals for whom witness protection has previously been approved in connection with the same prosecution; also, the names and locations of any other individuals connected with this case prosecution likely to be placed in the Program. If there are other witnesses involved in the prosecution whose participation in the Program will be requested, provide a separate narrative regarding each witness's specific testimony and why each witness is essential and unique.

  6. Threat. A comprehensive and specific recitation of the danger to the witness. List all individuals known or believed by the USA and investigative agent to pose a threat to the witness. Include complete names and addresses and request the investigative agency to forward photographs of each, if available, to OEO. If not available, so indicate. Include any individuals incarcerated who may pose a threat to the witness in prison and upon the witness's release. Additionally, the investigative agency must submit a report concerning the danger to the witness to its Washington, D.C., headquarters for review. The agency's headquarters will forward the report, along with its recommendation as to whether the witness should receive Program services, to OEO.

  7. Members of Witness's Household. List by name, date and place of birth, and relationship to the witness, those persons recommended for relocation.

  8. Medical Problems. A complete recitation of all medical problems experienced by the witness and members of his/her household, including any history of drug (legal or illegal) or alcohol abuse.

  9. Parole/Probation. Indicate any parole or probation restrictions for the witness and members of his/her household. If the witness and/or any household members are on State parole or probation, jurisdiction must be transferred to the United States Parole Commission (USPC). In order to effect the transfer, the appropriate State authorities must provide written consent to the jurisdiction change. A form will be provided to the prosecutor for the State to sign, which the State should send to the person at the USPC named on the form. It is the responsibility of the prosecutor or agent to provide the form to State authorities. Note: If a State is unable or unwilling to completely transfer supervision and jurisdiction of the witness to the USPC, the Program application will be denied.

    For an individual on State parole, the following documents must be obtained by the prosecutor or investigative agency and forwarded to the USPC before relocation can occur:

    1. Pre-sentence or background report detailing the circumstances of the instant offense and prior criminal conviction history;

    2. A sentence data record indicating the type and length of sentence imposed by the State court;

    3. A signed parole or release certificate; and

    4. All available institutional materials such as progress reports and classification materials.

    For a State probationer, the following documents must be obtained:

    1. Pre-sentence or background report providing a description of the instant offense and prior criminal conviction history;

    2. The Order of Probation from the State court indicating the sentence or probation imposed; and

    3. Signed conditions of release and any other pertinent materials.

    In addition, in order to comply with the provisions of the Witness Security Reform Act of 1984, the following information must be supplied for all witnesses:

  10. The possible danger the witness and/or adult family members pose to other persons or property in the relocation area if placed in the Program, with complete explanation.

  11. Whether or not the need for the witness's testimony outweighs the risk of danger the witness or adult family members may pose to the public and why.

  12. What alternatives to Program use were considered and why they will not work.

  13. Whether there are any child custody problems associated with the relocation of the witness or adult family members.

    It is the responsibility of the prosecutor or case agent to obtain the necessary court orders or affidavits concerning child custody. If the non-Program parent cannot be found, the case agent must submit an affidavit advising that a thorough search for the individual was conducted and he/she could not be located. All above-mentioned child custody required documents must be submitted to OEO or to the USMS prior to the child being relocated.

    An individual entering the Program must have court-ordered custody of a child in order for the child to enter the Program. If the child's non-Program natural parent has court-ordered visitation rights with that child, that parent would have to agree (via affidavit), to the child being relocated, the child's name being changed, and modification of the existing visitation arrangements in accordance with the USMS visitation requirements, which allow twelve visits per year (usually one per month). The USMS will arrange for these court-ordered visits and pay the travel costs associated with the visits. If the non-Program parent does not have court-ordered visitation rights, the parent needs to be notified, and must execute an affidavit confirming notification, that his/her child is being relocated and receiving a name change. If the non-Program parent is unapproachable (either a defendant in the investigation or dangerous), then notification can be waived by OEO until after relocation of the child. If the non-Program parent who has court-ordered visitation rights is unapproachable, as indicated above, a Federal court order must be obtained, which would allow the child to be relocated. However, if the non-Program parent chooses to fight the order through the State courts and wins custody, the child will not be allowed to remain in the Program.

[cited in USAM 9-21.400]