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 (seeIn 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 alsoIn 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. SeeUnited 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.