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EXHIBIT A

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THE ATTORNEY GENERAL’S GUIDELINES ON

FEDERAL BUREAU OF INVESTIGATION

UNDERCOVER OPERATIONS

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PREAMBLE

The following Guidelines on the use of undercover activities and operations by the

Federal Bureau of Investigation (FBI) are issued under the authority of the Attorney General as
provided in sections 509, 510, and 533 of title 28, United States Code. They apply to
investigations conducted by the FBI pursuant to the Attorney General’s Guidelines on General
Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations.

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TABLE OF CONTENTS

I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. GENERAL AUTHORITY AND PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV. AUTHORIZATION OF UNDERCOVER OPERATIONS . . . . . . . . . . . . . . . . . . . . . 3

A. GENERAL APPROVAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B.

C.

D.

E.

F.

G.

H.

UNDERCOVER OPERATIONS WHICH MAY BE AUTHORIZED BY
THE SPECIAL AGENT IN CHARGE (SAC) . . . . . . . . . . . . . . . . . . . . . . . . . 3

OPERATIONS WHICH MUST BE APPROVED AT FBIHQ . . . . . . . . . . . . 5

CRIMINAL UNDERCOVER OPERATIONS REVIEW COMMITTEE
(UNDERCOVER REVIEW COMMITTEE) . . . . . . . . . . . . . . . . . . . . . . . . . . 8

APPROVAL BY THE DIRECTOR, DEPUTY DIRECTOR,
DESIGNATED EXECUTIVE ASSISTANT DIRECTOR, OR
DESIGNATED ASSISTANT DIRECTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

APPLICATION/NOTIFICATION TO FBIHQ . . . . . . . . . . . . . . . . . . . . . . . 10

DURATION OF AUTHORIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

PARTICIPATION IN OTHERWISE ILLEGAL ACTIVITY BY
UNDERCOVER EMPLOYEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

I.

INTERIM/EMERGENCY AUTHORIZATION . . . . . . . . . . . . . . . . . . . . . . 14

V.

PROTECTING INNOCENT PARTIES AGAINST ENTRAPMENT . . . . . . . . . . . 16

A.

ENTRAPMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B.

C.

AUTHORIZATION REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

EXCEPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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VI. MONITORING AND CONTROL OF UNDERCOVER OPERATIONS . . . . . . . . 17

A.

B.

C.

D.

E.

PREPARATION OF UNDERCOVER EMPLOYEES, INFORMANTS,
AND COOPERATING WITNESSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

REVIEW OF CONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CONTINUING CONSULTATION WITH THE APPROPRIATE
FEDERAL PROSECUTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

SERIOUS LEGAL, ETHICAL, PROSECUTIVE OR DEPARTMENTAL
POLICY QUESTIONS, AND PREVIOUSLY UNFORESEEN
SENSITIVE CIRCUMSTANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ANNUAL REPORT OF THE UNDERCOVER REVIEW
COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

F.

DEPOSIT OF PROCEEDS; LIQUIDATION OF PROPRIETARIES . . . . 19

VII. RESERVATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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I. INTRODUCTION

The use of undercover techniques, including proprietary business entities, is essential to
the detection, prevention, and prosecution of white collar crimes, public corruption, terrorism,
organized crime, offenses involving controlled substances, and other priority areas of
investigation. However, these techniques inherently involve an element of deception and may
require cooperation with persons whose motivation and conduct are open to question, and so
should be carefully considered and monitored.

II. DEFINITIONS

A.

B.

“Undercover Activities” means any investigative activity involving the use of an
assumed name or cover identity by an employee of the FBI or another Federal, state, or
local law enforcement organization working with the FBI.

“Undercover Operation” means an investigation involving a series of related
undercover activities over a period of time by an undercover employee. For purposes of
these Guidelines, a “series of related undercover activities” generally consists of more
than three separate substantive contacts by an undercover employee with the
individual(s) under investigation. However, undercover activity involving sensitive or
fiscal circumstances constitutes an undercover operation regardless of the number of
contacts involved. A contact is “substantive” if it is a communication with another
person, whether by oral, written, wire, or electronic means, which includes information of
investigative interest. Mere incidental contact, e.g., a conversation that establishes an
agreed time and location for another meeting, is not a substantive contact within the
meaning of these Guidelines.

NOTE: In the context of online communications, such as e-mail and Internet Relay Chat (IRC),
multiple transmissions or e-mail messages can constitute one contact, much like a series of
verbal exchanges can comprise a single conversation. Factors to be considered in determining
whether multiple online transmissions constitute a single contact or multiple contacts include the
time between transmissions, the number of transmissions, the number of interruptions, topical
transitions, and the media by which the communications are exchanged (i.e., e-mail versus IRC).
For more detailed discussion, see the Online Investigative Principles for Federal Law
Enforcement Agents, Principle 6, Section C.

C.

D.

“Undercover Employee" means any employee of the FBI, or employee of a Federal,
state, or local law enforcement agency working under the direction and control of the FBI
in a particular investigation, whose relationship with the FBI is concealed from third
parties in the course of an investigative operation by the maintenance of a cover or alias
identity.

“Proprietary" means a sole proprietorship, partnership, corporation, or other business
entity operated on a commercial basis, which is owned, controlled, or operated wholly or
in part on behalf of the FBI, and whose relationship with the FBI is concealed from third
parties.

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E.

F.

“Appropriate Federal Prosecutor” means a United States Attorney or Section Chief in
the Criminal Division of the Department of Justice (DOJ).

“Joint Undercover Operation” means an undercover operation conducted jointly by the
FBI and another law enforcement agency, except that an operation in which FBI
participation is confined to contribution of limited financial or equipment resources or
technical advice does not constitute a joint undercover operation.

III. GENERAL AUTHORITY AND PURPOSE

The FBI may engage in undercover activities and undercover operations pursuant to these

Guidelines that are appropriate to carry out its law enforcement responsibilities, including the
conduct of preliminary inquiries, general crimes investigations, and criminal intelligence
investigations. In preliminary inquiries, these methods may be used to further the objective of
inquiry into possible criminal activities by individuals or groups to determine whether a full
investigation is warranted. In general crimes investigations, these methods may be used to
further the investigative objectives of preventing, solving, and prosecuting crimes. In criminal
intelligence investigations – i.e., racketeering enterprise investigations and terrorism enterprise
investigations – these methods may be used to further the investigative objective of ascertaining
such matters as the membership, finances, geographical dimensions, past and future activities,
and goals of the enterprise under investigation, with a view to the longer range objectives of
detection, prevention, and prosecution of the criminal activities of the enterprise.

These guidelines do not apply to investigations utilizing confidential informants,

cooperating witnesses or cooperating subjects, unless the investigation also utilizes an
undercover employee. However, the FBI, through the development of internal policy, may
choose to apply these Guidelines to certain confidential informant, cooperating witness, and
cooperating subject operations by referring such matters to the Undercover Review Committee
pursuant to Section IV.D(6).

The FBI may participate in joint undercover activities with other law enforcement

agencies and may operate a proprietary to the extent necessary to maintain an operation’s cover
or effectiveness. Joint undercover operations are to be conducted pursuant to these Guidelines.
However, if a joint undercover operation is under the direction and control of another federal law
enforcement agency and is approved through a sensitive operations review process substantially
comparable to the process under these Guidelines, the other agency’s process may be relied on in
lieu of the process under these Guidelines. In any undercover activity or operation in which an
FBI undercover employee participates, Sections IV.H and VI.A-B of these Guidelines shall
apply, regardless of which agency directs and controls the operation.

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IV. AUTHORIZATION OF UNDERCOVER OPERATIONS

A. GENERAL APPROVAL STANDARDS

Any official considering approval or authorization of a proposed undercover application
shall weigh the risks and benefits of the operation, giving careful consideration to the following
factors:











(1) The risk of personal injury to individuals, property damage, financial loss to persons
or businesses, damage to reputation, or other harm to persons;

(2) The risk of civil liability or other loss to the Government;

(3) The risk of invasion of privacy or interference with privileged or confidential
relationships and any potential constitutional concerns or other legal concerns;

(4) The risk that individuals engaged in undercover operations may become involved in
illegal conduct restricted in Section IV.H below; and

(5) The suitability of Government participation in the type of activity that is expected to
occur during the operation.

B.

UNDERCOVER OPERATIONS WHICH MAY BE AUTHORIZED BY THE
SPECIAL AGENT IN CHARGE (SAC)

(1) The establishment, extension, or renewal of all undercover operations to be
supervised by a given field office must be approved by the SAC. If the undercover
operation does not involve any of the factors listed in Section IV.C below, this approval
shall constitute authorization for the operation. Approval requires a written
determination, stating supporting facts and circumstances, that:

(a) Initiation of investigative activity regarding the alleged criminal conduct or
criminal enterprise is warranted under any applicable departmental guidelines;

(b) The proposed undercover operation appears to be an effective means of
obtaining evidence or necessary information. This finding should include a
statement of what prior investigation has been conducted and what chance the
operation has of obtaining evidence or necessary information concerning the
alleged criminal conduct or criminal enterprise;

NOTE: The gathering of evidence and information through undercover operations
furthers the investigative objectives of detecting, preventing, and prosecuting
crimes. See Sections I and III above. In furthering these objectives, the Attorney
General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism

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Enterprise Investigations (Part I) state that “[t]he FBI shall not hesitate to use any
lawful techniques consistent with these Guidelines, even if intrusive, where the
intrusiveness is warranted in light of the seriousness of a crime or the strength of
the information indicating its commission or potential future commission. This
point is to be particularly observed in the investigation of terrorist crimes and in
the investigation of enterprises that engage in terrorism.” As with other
investigative techniques, Special Agents in Charge should be guided by this
principle in considering and approving undercover operations. The principle, as
noted, applies with particular force where the undercover operation is directed to
gathering information that will help to solve and prosecute terrorist offenses or
prevent the future commission of acts of terrorism.

(c) The undercover operation will be conducted with minimal intrusion consistent
with the need to collect the evidence or information in a timely and effective
manner;

(d) Approval for the use of any confidential informant has been obtained as
required by the Attorney General’s Guidelines Regarding the Use of Confidential
Informants;

(e) Any foreseeable participation by an undercover employee in illegal activity
that can be approved by the SAC on his or her own authority is justified by the
factors noted in paragraph H; and

(f) If there is no present expectation of the occurrence of any of the sensitive or
fiscal circumstances listed in paragraph C, a statement to that effect.

(2) Undercover operations may be authorized pursuant to this subsection for up to six
months and continued upon renewal for an additional six-month period, for a total of no
more than one year. Undercover operations initiated pursuant to this subsection may not
involve the expenditure of more than $50,000 ($100,000 in drug cases of which a
maximum of $50,000 is for operational expenses), or such other amount that is set from
time to time by the Director, without approval from FBI Headquarters (FBIHQ).

(3) The SAC may delegate the responsibility to authorize the establishment, extension,

or renewal of undercover operations to designated Assistant Special Agents in Charge.
The delegation of this responsibility by the SAC should be in writing and maintained in
the appropriate field office. However, all undercover operations which must be
authorized at FBIHQ must be approved by the SAC.

(4) A copy of all written approvals described in (1) above shall be forwarded promptly to
FBIHQ.

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C.

OPERATIONS WHICH MUST BE APPROVED AT FBIHQ

(1) Fiscal Circumstances

In all undercover operations involving the fiscal circumstances set out below, the SAC
shall submit an application to FBIHQ in accordance with Section IV.F below. A
recommendation for authorization may be forwarded directly to the Director or
designated Assistant Director or, in operations involving only fiscal circumstances (a)-
(c), to the designated Deputy Assistant Director for final review and authorization,
provided that the approval levels conform to all applicable laws.

Applications for approval of undercover operations referred to FBIHQ only because of
fiscal circumstances need not be considered or approved by the Undercover Review
Committee.

For purpose of these Guidelines, an undercover operation involves fiscal circumstances if
there is a reasonable expectation that the undercover operation will –

(a) Require the purchase or lease of property, equipment, buildings, or facilities;
the alteration of buildings or facilities; a contract for construction or alteration of
buildings or facilities; or prepayment of more than one month’s rent;

NOTE: The purchase, rental, or lease of property using an assumed name or cover
identity to facilitate a physical or technical surveillance is not an undercover operation
for purposes of these Guidelines. However, since the expenditure of appropriated funds
is involved, approval must be obtained from FBIHQ in conformance with applicable
laws.

(b) Require the deposit of appropriated funds or proceeds generated by the
undercover operation into banks or other financial institutions;

(c) Use the proceeds generated by the undercover operation to offset necessary
and reasonable expenses of the operation;

(d) Require a reimbursement, compensation, or indemnification agreement with
cooperating individuals or entities for services or losses incurred by them in aid of
the operation (any such agreement entered into with third parties must be
reviewed by the FBI’s Office of the General Counsel and Office of the Chief
Contracting Officer); or

(e) Exceed the limitations on duration or commitment of resources established by
the Director for operations initiated at the field office level.

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(2) Sensitive Circumstances

In all undercover operations involving any sensitive circumstances listed below, the SAC
shall submit an application to FBIHQ in accordance with paragraph F below. The
application shall be reviewed by appropriate supervisory personnel at FBIHQ and, if
favorably recommended, sent to the Undercover Review Committee for consideration.
The application shall then be forwarded to the Director or a designated Assistant
Director, who may approve or disapprove the application.

For purposes of these Guidelines, sensitive circumstances are involved if there is a
reasonable expectation that the undercover operation will involve –

(a) an investigation of possible criminal conduct by any elected or appointed
official, or political candidate, for a judicial, legislative, management, or
executive-level position of trust in a Federal, state, or local governmental entity or
political subdivision thereof;

(b) an investigation of any public official at the Federal, state, or local level in any
matter involving systemic corruption of any governmental function;

(c) an investigation of possible criminal conduct by any foreign official or
government, religious organization, political organization, or the news media;

NOTE: There are some circumstances involving officials in judicial, legislative,
management, or executive-level positions which may logically be considered
nonsensitive. In such instances, the Section Chief, Integrity in Government/Civil Rights
Section, Criminal Investigative Division, FBIHQ, who is a member of the Criminal
Undercover Operations Review Committee and has a national perspective on matters
involving public officials, must be consulted for a determination as to whether the
undercover operation should be presented to the Undercover Review Committee.

(d) Engaging in activity having a significant effect on or constituting a significant
intrusion into the legitimate operation of a Federal, state, or local governmental
entity;

(e) Establishing, acquiring, or operating a proprietary;

(f) Providing goods or services which are essential to the commission of a crime,
which goods and services are reasonably unavailable to a subject of the
investigation except from the Government;

(g) Activity by an undercover employee that is proscribed by Federal, state, or
local law as a felony or that is otherwise a serious crime – but not including the
purchase of stolen or contraband goods; the delivery or sale by the Government of

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stolen property whose ownership cannot be determined; the controlled delivery of
drugs which will not enter commerce; the conduct of no more than five money
laundering transactions, not to exceed a maximum aggregate amount of $1
million; the payment of bribes which are not included in the other sensitive
circumstances; or the making of false representations to third parties in
concealment of personal identity or the true ownership of a proprietary (this
exemption does not include any statement under oath or the penalties of perjury –
see paragraph H below);

NOTE: Some of the above activities – for example, the controlled delivery of drugs,
bribe payments, and certain transactions that involve depositing funds into banks or other
financial institutions – are subject to specific review and approval procedures. These
matters must be coordinated with FBIHQ.

(h) A significant risk that a person participating in an undercover operation will
be arrested or will supply falsely sworn testimony or false documentation in any
legal or administrative proceeding (see paragraph H below);

(i) Attendance at a meeting or participation in communications between any
individual and his or her lawyer;

(j) A significant risk that a third party will enter into a professional or confidential
relationship with a person participating in an undercover operation who is acting
as an attorney, physician, clergyman, or member of the news media;

(k) A request to an attorney, physician, member of the clergy, or other person for
information that would ordinarily be privileged or to a member of the news media
concerning an individual with whom the news person is known to have a
professional or confidential relationship;

(l) Participation in the activities of a group under investigation as part of a
terrorism enterprise investigation or recruiting a person from within such a group
as an informant;

(m) A significant risk of violence or physical injury to individuals or a significant
risk of financial loss;

(n) Activities which create a realistic potential for significant claims against the
United States arising in tort, contract, or for compensation for the “taking” of
property, or a realistic potential for significant claims against individual
government employees alleging constitutional torts; or

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(o) Untrue representations by a person participating in the undercover operation
concerning the activities or involvement of any third person without that
individual’s knowledge or consent.

D.

CRIMINAL UNDERCOVER OPERATIONS REVIEW COMMITTEE
(UNDERCOVER REVIEW COMMITTEE)

(1) The Undercover Review Committee shall consist of appropriate employees of the FBI
designated by the Director and Criminal Division attorneys designated by the Assistant
Attorney General in charge of the Criminal Division, DOJ, to be chaired by a designee of
the Director.

(2) When an application from a SAC for approval of an undercover operation involving
sensitive circumstances specified in paragraph C(2) is received by FBIHQ, upon
recommendation by the FBIHQ substantive section, the Committee members will meet to
review the application. Criminal Division members of the Committee may consult with
appropriate FBI personnel, senior DOJ officials, and the United States Attorney as
deemed appropriate. The Committee shall submit the application to the Director or
designated Assistant Director with a recommendation for approval or disapproval of the
request and any recommended changes or amendments to the proposal.

(3) In addition to the considerations contained in Section IV.A above, the Committee
shall also examine the application to determine whether adequate measures have been
taken to minimize the incidence of sensitive circumstances and reduce the risks of harm
and intrusion that are created by such circumstances. If the Committee recommends
approval of an undercover operation, the recommendation shall include a brief written
statement explaining why the operation merits approval in light of the anticipated
occurrence of sensitive circumstances.

(4) The Committee shall recommend approval of an undercover operation only upon
reaching a consensus, provided that:

(a) If one or more of the designees of the Assistant Attorney General in charge of
the Criminal Division does not join in a recommendation for approval of a
proposed operation because of legal, ethical, prosecutive, or departmental policy
considerations, the designee shall promptly advise the Assistant Attorney General
and no further action shall be taken on the proposal until the designated Assistant
Director has had an opportunity to consult with the Assistant Attorney General;
and

(b) If, upon consultation, the Assistant Attorney General disagrees with a decision
by the designated Assistant Director to approve the proposed operation, no further
action shall be taken on the proposal without the approval of the Deputy Attorney
General or the Attorney General.

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(5) The Committee should consult the Office of the General Counsel of the FBI and the
Office of Legal Counsel or other appropriate division or office at DOJ about significant
unsettled legal questions concerning authority for, or the conduct of, a proposed
undercover operation.

(6) The Director, Assistant Attorney General, or other official designated by them may
refer any sensitive investigative matter, including informant, cooperating witness, and
cooperating subject operations, to the Undercover Review Committee for advice,
recommendation or comment, regardless of whether an undercover operation is involved.
A SAC may, consistent with FBI policy, submit an undercover operation for review by
FBIHQ and the Undercover Review Committee, regardless of whether the sensitive
circumstances listed in these Guidelines are present.

(7) The United States Attorney, SAC or any member of their staffs, may attend the
Undercover Review Committee in order to advocate for the approval of an undercover
operation.

(8) If the SAC and the United States Attorney jointly disagree with any stipulation set by
the Undercover Review Committee regarding the approval of an undercover operation,
they may consult with the chairman of the Committee who may schedule a meeting of the
committee to reconsider the issue in question.

(9) At any time during the undercover operation the SAC can appeal any FBIHQ decision
directly to the Assistant Director. Likewise, the United States Attorney can appeal
directly to the Assistant Attorney General, Criminal Division, or the Deputy Attorney
General as appropriate.

E.

APPROVAL BY THE DIRECTOR, DEPUTY DIRECTOR, DESIGNATED
EXECUTIVE ASSISTANT DIRECTOR, OR DESIGNATED ASSISTANT
DIRECTOR

A designated Assistant Director may approve an undercover operation considered by the
Undercover Review Committee, unless the investigation involves sensitive circumstance (1) or
(m). Except in the limited circumstances described in paragraph I below, only the Director, the
Deputy Director, or a designated Executive Assistant Director may approve a proposed operation
if a reasonable expectation exists that:

(1) The undercover operation will be used to participate in the activities of a group under
investigation as part of a terrorism enterprise investigation or to recruit a person from
within such a group as an informant (sensitive circumstance (l)); or

(2) There may be a significant risk of violence or personal injury to individuals or a
significant risk of financial loss (sensitive circumstance (m)).

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F.

APPLICATION/NOTIFICATION TO FBIHQ

(1) Application to FBIHQ must be made for any undercover operation requiring FBIHQ
approval. Each application shall include:

(a) The written SAC approval described in paragraph B(1) above;



(b) A description of the proposed operation and the particular cover to be
employed; any informants or other cooperating persons who will assist in the
operation, including background information, arrest record, and plea agreements;
the particular offense or criminal enterprise under investigation; and any
individuals known to be involved;

(c) A statement of the period of time for which the operation would be
maintained;

(d) A description of how the requirements concerning any inducements to be
offered as discussed in Section V.B. below have been met; and

(e) A statement of proposed expenses.

(2) Applications for approval of undercover operations involving sensitive circumstances
listed in paragraph C(2) shall also include the following information:

(a) A statement of which circumstances are reasonably expected to occur, what
the facts are likely to be, and why the undercover operation merits approval in
light of the circumstances, including:

(i) For undercover operations involving sensitive circumstance (g), a
statement why the participation in otherwise illegal activity is justified
under the requirements of paragraph H below; and

(ii) For undercover operations involving sensitive circumstance (l), a
statement why the infiltration or recruitment is necessary, a description of
procedures to minimize any acquisition, retention, and dissemination of
information that does not relate to the matter under investigation or to
other authorized investigative activity, and an explanation of how any
potential constitutional concerns and any other legal concerns have been
addressed.

(b) A letter from the appropriate Federal prosecutor indicating that he or she has
reviewed the proposed operation, including the sensitive circumstances
reasonably expected to occur, agrees with the proposal and its legality, and will
prosecute any meritorious case that has developed. The letter should include a

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finding that the proposed investigation would be an appropriate use of the
undercover technique and that the potential benefits in detecting, preventing, or
prosecuting criminal activity outweigh any direct costs or risks of other harm.

(3) An application for the extension or renewal of an undercover operation should
describe the results obtained from the operation or explain any failure to obtain
significant results and, where sensitive circumstances are involved, should include a
letter from the appropriate Federal prosecutor favoring the extension or renewal of
authority.

(4) The FBI shall immediately notify the Deputy Attorney General whenever FBIHQ
disapproves an application for approval of an undercover operation and whenever the
Undercover Review Committee is unable to reach consensus concerning an application.

G.

DURATION OF AUTHORIZATION

(1) An undercover operation approved by FBIHQ may not continue longer than is
necessary to achieve the objectives specified in the authorization, nor in any event longer
than six months, without new authorization to proceed, except pursuant to subparagraph
(3) below.

(2) If there is significant change in either the direction or objectives of an undercover
operation approved by FBIHQ, the operation must be reviewed by the Undercover
Review Committee to determine whether a new authorization is necessary.

(3) An undercover operation which requires review by the Undercover Review
Committee may be initiated or extended on an interim basis by the designated Assistant
Director in the event of exigent circumstances, for a period not to exceed 30 days. In the
case of an initial authorization, budget enhancement, or change in focus, the interim
authority must be ratified by the Undercover Review Committee at its next scheduled
meeting.

(4) An undercover operation initially authorized by the SAC must be reauthorized by a
designated Assistant Director, pursuant to Section IV.C-F, if it lasts longer than 12
months or involves the expenditure of more than $50,000 ($100,000 in drug cases of
which a maximum of $50,000 is for operational expenses), or such other amount that is
set from time to time by the Director. No undercover operation approved at the field
office level may continue for more than one year without obtaining approval at FBIHQ.

(5) An undercover operation approved by an SAC is deemed to commence on the date
approved, not on the date covert activity is begun.

(6) Among the factors to be considered in a determination by any approving official of
whether an undercover operation should be renewed or extended are:

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(a) The extent to which the operation has produced the results anticipated when it
was established;

(b) The potential for future success beyond that initially targeted;

(c) The extent to which the investigation can continue without exposing the
undercover operation; and

(d) The extent to which continuation of the investigation may cause injury,
financial or otherwise, to innocent parties.

H.

PARTICIPATION IN OTHERWISE ILLEGAL ACTIVITY BY UNDERCOVER
EMPLOYEES

Except when authorized pursuant to these Guidelines, no undercover employee shall

engage in any activity that would constitute a violation of Federal, state, or local law if engaged
in by a private person acting without authorization. For purposes of these Guidelines, such
activity is referred to as otherwise illegal activity.



(1) Justification: No official shall recommend or approve participation by an undercover
employee in otherwise illegal activity unless the participation is justified:



(a) to obtain information or evidence necessary for the success of the
investigation and not reasonably available without participation in the otherwise
illegal activity;

(b) to establish or maintain credibility of a cover identity; or

(c) to prevent death or serious bodily injury.

(2) Minimization: The FBI shall take reasonable steps to minimize the participation of an
undercover employee in any otherwise illegal activity.

(3) Prohibitions: An undercover employee shall not:

(a) participate in any act of violence except in self-defense;

(b) initiate or instigate any plan to commit criminal acts except in accordance
with Section V (concerning avoidance of entrapment) below; or

(c) participate in conduct which would constitute unlawful investigative
techniques (e.g., illegal wiretapping, illegal mail openings, breaking and entering,
or trespass amounting to an illegal search).

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(4) Self-Defense: Nothing in these Guidelines prohibits an undercover employee from
taking reasonable measures of self-defense in an emergency to protect his or her own life
or the lives of others against wrongful force. Such measures shall be reported to the
appropriate Federal prosecutor and FBIHQ, who shall inform the Assistant Attorney
General for the Criminal Division as soon as possible.

(5) Authorization:

(a) The SAC must approve all undercover operations and activities, including
those which contemplate participation in otherwise illegal activity. This approval
shall constitute authorization of:

(i) otherwise illegal activity which is a misdemeanor or similar minor
crime under Federal, state, or local law;

(ii) consensual monitoring, even if a crime under local law;

(iii) the purchase of stolen or contraband goods;

(iv) the delivery or sale of stolen property which cannot be traced to the
rightful owner;

(v) the controlled delivery of drugs which will not enter commerce;

(vi) the payment of bribes which is not included in the sensitive
circumstances;

(vii) the making of false representations to third parties in concealment of
personal identity or the true ownership of a proprietary (but not any
statement under oath or the penalties of perjury, which must be authorized
pursuant to subparagraph (b) below); and

(viii) conducting no more than five money laundering transactions, not to
exceed a maximum aggregate amount of $1 million.

(b) Participation in otherwise illegal activity which is a felony or its equivalent
under Federal, state, or local law and which is not otherwise excepted under
Section IV.C(2)(g) above, requires additional authorization by the Assistant
Director after review by the Undercover Review Committee. See Section IV.E.

(c) Participation in otherwise illegal activity which involves a significant risk of
violence or physical injury requires authorization by the Director, Deputy
Director, or designated Executive Assistant Director after review by the
Undercover Review Committee. See Section IV.E.

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(d) If an undercover employee believes it to be necessary and appropriate under
the standards set out in paragraph H(1) above, to participate in otherwise illegal
activity that was not foreseen or anticipated, every effort should be made to
consult with the SAC, who shall seek emergency interim authority from the
designated Assistant Director, and review by the Undercover Review Committee
if possible, or, if necessary, may provide emergency authorization under
paragraph I below. If consultation is impossible, and the undercover employee
concludes that there is an immediate and grave threat to life, physical safety, or
property, the undercover employee may participate in the otherwise illegal
activity, so long as he does not take part in and makes every effort to prevent any
act of violence. A report to the SAC shall be made as soon as possible, who shall
submit a written report to FBIHQ, which shall promptly inform the Undercover
Review Committee. A decision by an undercover employee to participate in
otherwise illegal activity under this subsection may be retroactively authorized if
appropriate.

(e) If an undercover operation results in violence in the course of criminal
activity, and an undercover employee, informant, or cooperating witness has
participated in any manner in the criminal activity, the SAC shall immediately
inform the appropriate Federal prosecutor and FBIHQ, which shall inform the
Assistant Attorney General in charge of the Criminal Division as soon as
possible.

I.

INTERIM/EMERGENCY AUTHORIZATION

(1) In situations which require the prior written authorization of the SAC, the SAC may
orally approve an undercover operation when he or she determines that a significant
investigative opportunity would be lost were the time taken to prepare a written
authorization. The required written authorization, with the justification for the oral
approval included, shall be prepared promptly and forwarded to FBIHQ.

(2) Emergency interim authorization procedures are in place within FBIHQ that provide
for expeditious review and authorization of a proposed undercover operation. See
paragraph G(3). If the SAC concludes that a situation exists which makes even this
expedited procedure too lengthy, in any of the following situations, the SAC may
authorize the undercover operation:

(a) In situations which would otherwise require approval by the designated
Assistant Director, the SAC may approve an undercover operation when he or she
determines that without immediate initiation, extension, or renewal of an
operation, life, property, or personal safety of individuals would be placed in
serious danger.

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(b) In situations which involve sensitive circumstance (l) or (m), the SAC may
approve an undercover operation when he or she determines that the initiation,
extension, or renewal of an operation is imperative to protect life or prevent
serious injury.

(c) In situations which involve sensitive circumstance (l), or other investigative
activity relating to terrorism, the SAC may approve an undercover operation
when he or she determines that the initiation, extension, or renewal of an
operation is necessary to avoid the loss of a significant investigative opportunity.


Before providing authorization in these situations, the SAC shall attempt to consult with
the appropriate Federal prosecutor and with a designated Assistant Director.

(3) The power to provide emergency authorizations under subparagraph (2) may not be
delegated pursuant to Section IV.B(3).

(4) In situations arising under subparagraph (2), a written application for approval must
be submitted to FBIHQ within 48 hours after the operation has been initiated, extended,
or renewed, together with the initial finding and a written description of the emergency
situation. As soon as it is notified of an emergency authorization, FBIHQ shall notify the
DOJ members of the Undercover Review Committee. If the subsequent written
application for approval is denied, a full report of all activity undertaken during the
course of the operation must be submitted to the Director, who shall inform the Deputy
Attorney General.

(5) In online undercover operations, a SAC or his or her designee may authorize, in
writing, continued online undercover contact for a period not to exceed 30 days if it is
essential to continue online contact with a subject in order to either maintain credibility
or avoid permanent loss of contact with a subject during the period of time in which an
application for an online undercover operation is being prepared and submitted for
approval. If the proposed undercover operation is one that must be approved by an
Assistant Director under Section IV.C(2), the appropriate offices at FBIHQ must be
notified promptly of the decision to grant this interim authority. Furthermore, a full
report of all online activity occurring during this period must be submitted to the
approving authority as soon as practicable. If approved, the undercover employee
maintaining online contact during this period must:

(a) Maintain an accurate recording of all online communication;

(b) Avoid otherwise illegal activity;

(c) Maintain as limited an online profile as possible consistent with the need to
accomplish the objectives stated above;

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(d) Avoid physical contact with subjects;

(e) Take all necessary and reasonable actions during the interim period to protect
potential victims and prevent serious criminal activity if online contact reveals a
significant and imminent threat to third party individuals, commercial
establishments, or government entities; and

(f) Cease undercover activities if, during the 30-day period, a determination is
made to disapprove the undercover operation.

V. PROTECTING INNOCENT PARTIES AGAINST ENTRAPMENT

A.

ENTRAPMENT

Entrapment must be scrupulously avoided. Entrapment occurs when the Government

implants in the mind of a person who is not otherwise disposed to commit the offense the
disposition to commit the offense and then induces the commission of that offense in order to
prosecute.

B.

AUTHORIZATION REQUIREMENTS

In addition to the legal prohibition on entrapment, additional restrictions limit FBI

undercover activity to ensure, insofar as it is possible, that entrapment issues do not adversely
affect criminal prosecutions. As a result, no undercover activity involving an inducement to an
individual to engage in crime shall be authorized unless the approving official is satisfied that –

(1) The illegal nature of the activity is reasonably clear to potential subjects; and

(2) The nature of any inducement offered is justifiable in view of the character of the
illegal transaction in which the individual is invited to engage; and

(3) There is a reasonable expectation that offering the inducement will reveal illegal
activity; and

(4) One of the two following limitations is met:

(i) There is reasonable indication that the subject is engaging, has engaged, or is
likely to engage in the illegal activity proposed or in similar illegal conduct; or

(ii) The opportunity for illegal activity has been structured so that there is reason
to believe that any persons drawn to the opportunity, or brought to it, are
predisposed to engage in the contemplated illegal conduct.



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C.

EXCEPTION

The alternative requirements of paragraph B(4), while not required by law, are imposed

to ensure the Government does not offer inducements to crime to persons who are not
predisposed to do so. These standards can be waived only by the Director upon a written finding
that the activities are necessary to protect life or prevent other serious harm.

VI. MONITORING AND CONTROL OF UNDERCOVER OPERATIONS

A.

PREPARATION OF UNDERCOVER EMPLOYEES, INFORMANTS, AND
COOPERATING WITNESSES

(1) Prior to the investigation, the SAC or a designated Supervisory Special Agent shall
review with each undercover employee the conduct that the undercover employee is
expected to undertake and conduct that may be necessary during the investigation. The
SAC or Agent shall discuss with each undercover employee any of the sensitive or fiscal
circumstances specified in Section IV.C(1) or (2) that are reasonably likely to occur.

(2) Each undercover employee shall be instructed that he or she shall not participate in
any act of violence; initiate or instigate any plan to commit criminal acts; use unlawful
investigative techniques to obtain information or evidence; or engage in any conduct that
would violate restrictions on investigative techniques or FBI conduct contained in the
Attorney General’s Guidelines or departmental policy; and that, except in an emergency
situation as set out in Section IV.H(5)(d), he or she shall not participate in any illegal
activity for which authorization has not been obtained under these Guidelines. The
undercover employee shall be instructed in the law of entrapment. When an undercover
employee learns that persons under investigation intend to commit a violent crime, he or
she shall try to discourage the violence.

B.

REVIEW OF CONDUCT

From time to time, during the course of the undercover operation, the SAC shall review
the conduct of the undercover employee(s) and others participating in the undercover operation,
including any proposed or reasonably foreseeable conduct for the remainder of the investigation.
Any findings of impermissible conduct shall be discussed with the individual and promptly
reported to the designated Assistant Director and the members of the Undercover Review
Committee, and a determination shall be made as to whether the individual should continue his
or her participation in the investigation.

C.

CONTINUING CONSULTATION WITH THE APPROPRIATE FEDERAL
PROSECUTOR

Upon initiating and throughout the course of any undercover operation, the SAC or a
designated Supervisory Special Agent shall consult on a continuing basis with the appropriate

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Federal prosecutor, particularly with respect to the propriety of the operation and the legal
sufficiency and quality of evidence that is being produced by the activity.

D.

SERIOUS LEGAL, ETHICAL, PROSECUTIVE OR DEPARTMENTAL POLICY
QUESTIONS, AND PREVIOUSLY UNFORESEEN SENSITIVE
CIRCUMSTANCES

(1) The SAC shall consult with the chairman of the Criminal Undercover Operations
Review Committee, FBIHQ whenever a serious legal, ethical, prosecutive, or
departmental policy question arises in any undercover operation or if sensitive
circumstances occur that were not anticipated. The FBI shall consult with the United
States Attorney, or Assistant Attorney General, or their representative, and with DOJ
members of the Undercover Review Committee on whether to modify, suspend, or
terminate the investigation related to such issues.

(2) When unforeseen sensitive circumstances arise, the SAC shall submit a written
application to FBIHQ for authorization of an undercover operation previously approved
at the field office level, or amend the existing application to FBIHQ pursuant to Section
IV.F.

E.

ANNUAL REPORT OF THE UNDERCOVER REVIEW COMMITTEE

(1) The Undercover Review Committee shall retain a file of all applications for approval
of undercover operations submitted to it, together with a written record of the
Committee’s action on the application and any ultimate disposition by the approving
official. The FBI shall also prepare a short summary of each undercover operation
recommended for approval by the Committee. These records and summaries shall be
available for inspection by a designee of the Deputy Attorney General and of the
Assistant Attorney General in charge of the Criminal Division.

(2) On an annual basis, the Committee shall submit to the Director, the Attorney General,
the Deputy Attorney General, and the Assistant Attorney General in charge of the
Criminal Division a written report summarizing:

(a) the types of undercover operations approved and disapproved together with
the reasons for disapproval;

(b) the major issues addressed by the Committee in reviewing applications and
how they were resolved; and

(c) any significant modifications to the operations recommended by the
Committee.

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F.

DEPOSIT OF PROCEEDS; LIQUIDATION OF PROPRIETARIES

As soon as the proceeds from any undercover operation are no longer necessary for the
conduct of the activity, the remaining proceeds shall be deposited in the Treasury of the United
States as miscellaneous receipts.

Whenever a proprietary with a net value over the amount specified by the Department of

Justice Appropriation Authorization Act or other applicable laws is to be liquidated, sold, or
otherwise disposed of, the FBI shall report the circumstances to the Attorney General and the
Comptroller General. The proceeds of the liquidation, sale, or the disposition, after obligations
are met, shall be deposited in the Treasury of the United States as miscellaneous receipts.

VII. RESERVATION

These Guidelines are set forth solely for the purpose of internal DOJ guidance. They are

not intended to, do not, and may not be relied upon to create any rights, substantive or
procedural, enforceable by 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.

Date: May 30, 2002

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