Snitching

Criminal Informant Law, Policy, and Research

Blog

Life imitating art imitating life…

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A vice president of a multimillion dollar company turns informant to avoid liability, surreptitiously taping his high-level colleagues who are eventually charged with corporate fraud. If this sounds like the plot of the movie “The Informant” (reviewed here), it is. But it is also the plot of this news story about the theft of $2 million worth of fuel from the Mexican oil company Petroleos Mexicanos: “Ex-Bush aide tied to stolen oil case.” Here’s an excerpt:

Josh Crescenzi of Houston, former vice president for Continental Fuels of San Antonio, has been cooperating with agents of U.S. Immigration and Customs Enforcement for several months, helping them secretly record conversations that have resulted in the conviction of a Houston oil industry executive, another one from San Antonio and the president of a small oil and gas company in Edinburg.

Stories like this (and this) suggest that the use of active informants in white collar investigations, i.e. using cooperating suspects to actively snare high-level corporate offenders in ongoing wrongdoing, is on the rise, although since the whole arena is shrouded in secrecy it’s hard to say if the practice is now more prevalent or we are just hearing more about it. In any event, because white collar informants and defendants are better resourced and represented than your typical street or drug snitch, we should expect such cases to improve the overall visibility and accountability of informant practices. As sociology professor Gary Marx wrote 20 years ago in his landmark book “Undercover: Police Surveillance in America”:

When lower-status drug dealers and users or prostitutes were the main targets of covert operations, the tactic tended to be ignored, but when congressmen and business executives who can afford the best legal counsel became targets, congressional inquiries and editorials urging caution appeared.

“ICE agents mishandle informants”

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The Associated Press reports that the federal Immigration and Customs Enforcement (ICE) agency is having the same sorts of informant problems that its FBI and DEA counterparts have long struggled against. Here’s an excerpt from the story:

One immigration agent was accused of running an Internet pornography business and enjoying an improper relationship with an informant. Another let an informant smuggle in a group of illegal immigrants. And in a third case, an agent was investigated for soliciting sex from a witness in a marriage fraud case.

These troubling misdeeds are a sampling of misconduct by federal Immigration and Customs Enforcement personnel as the agency seeks to carve out a bigger role in the deadly border war against Mexican drug gangs.

According to documents obtained by The Associated Press under the Freedom of Information Act, ICE agents have blundered badly in their dealings with informants and other sources, covering up crimes and even interfering in a police investigation into whether one informant killed another.

I blogged about this last incident a couple of months ago–see Informants Killing Informants. Now it appears that ICE deliberately steered El Paso police in the wrong direction to protect their murderous source. This behavior is reminiscent of the FBI’s cover-ups of mafia informant murders and other crimes in the 1980s and 90s. Indeed, the official toleration and facilitation of crime is the core compromise at the heart of snitching, and suggests that insofar as ICE is making informants the centerpiece of its border strategy, its problems in this arena are only just beginning.

Of Insider-Trading, Informants,and Wiretaps

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“Wall Street Meets the ‘Wire,’” is a post from earlier this week on White Collar Crime Prof Blog, discussing the criminal case against billionaire hedge-fund manager Raj Rajaratnam for insider-trading. Here’s a link to the news story on Bloomberg. The post focuses on the unusually aggressive use of wiretaps in the investigation, and asks whether the government was authorized under the federal wiretap statute to do so given the availability of cooperating informants. As the post explains:

Title 18 U.S.C. § 2518(3)(c) provides that a court issuing a wiretap authorization order must determine whether normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. This “necessity requirement” obligates the government to set forth a full and complete statement of specific circumstances explaining why traditional investigative techniques were insufficient or the application must be denied. In determining the sufficiency of an affidavit, a reviewing court must ensure that the issuing court properly performed [its] function and did not ‘serve merely as a rubber stamp for the police’. The government is not under an obligation to exhaust all alternative means of investigation in satisfying the necessity requirement but, neither should it be able to ignore avenues of investigation that appear both fruitful and cost-effective.

Given that the government had three co-conspirators, including one as early as January 2006, acting as informants and cooperating witnesses, and that these individuals had unfettered access to Rajaratnam and others involved in the alleged conspiracies, the question arises whether the government deliberately stalled this investigation and actively resisted utilizing normal investigative techniques, hoping to induce the court into believing that only a wiretap could succeed.

The post doesn’t mention it, but the government need not even get court permission for electronic surveillance if it has so-called “third party consent,” i.e. if the informant agrees to record the conversation. 18 U.S.C. § 2511(2)(c).

This story illustrates the intimate legal relationship between informants and other forms of surveillance. The law privileges informant use, forcing the government to justify its use of wiretaps if informants are available–note that the post refers to snitching as a “normal investigative technique.” Moreover, the law permits the government to circumvent the courts entirely and avoid asking for permission to record conversations if it can find an informant who will agree to the surveillance. The usual explanation for this hierarchy is that electronic surveillance is one of the most intrusive forms of investigation and therefore should be a means of last resort. Wiretapping is of course supremely invasive, but this fact obscures the fact that informant use can be similarly intrusive, i.e. when the government threatens friends and colleagues with criminal charges to get them to report on and record people they know. For those who are interested, Chapter Two of the book discusses informant law in detail.

The insider-trading story also hints at important differences between white collar and street/drug crime investigative tactics involving snitching. The culture of informant use is very different in these two realms: white collar informants tend to be (although not always) well controlled, represented by counsel, and provide information about past crimes, whereas drug informants tend to be poorly controlled, unrepresented, and permitted to engage in new criminal activity in order to generate evidence. At the same time, the two arenas share important features. Here’s an excerpt from Chapter Seven:

White collar informing shares important characteristics with its street counterpart. Both confer a vast amount of discretionary, unreviewable authority on law enforcement. Both exacerbate power inequalities among potential offenders, as well as between vulnerable offenders and the government. In both arenas, the decision to permit cooperation means that the government is tolerating and forgiving crime, and sometimes even creating an atmosphere in which crime may flourish. And both deprive courts, and thus the public, of significant amounts of power over and information about the operations of the executive.

As informant use becomes increasingly prevalent in white collar investigations, we should expect to see more of the problems of unreliability and continued criminality that have become familiar in the street crime arena. See previous post: Committing Crime While Working for the Government.

Big Picture: adjusting the war on drugs?

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While this blog is primarily devoted to the policy of using criminal informants, the significance of snitching is deeply connected to drug enforcement. It is largely because drug offenses constitute so much of our criminal system–around 30 percent of state felony convictions among other things–that snitching is such a pervasive phenomenon. Accordingly, big shifts in drug enforcement are big snitching news. The U.S. Department of Justice announced yesterday that it will no longer prosecute medical marijuana users and distributors in the 14 states that have legalized medical marijuana, as long as those users/producers obey state law. New York Times story here. This step represents an important repudiation of the punitive, enforcement-by-any-means-and-at-all costs rhetoric of the past twenty years of federal drug enforcement. Over the summer, writer/journalist Sasha Abramsky predicted in an article in the Nation that “the nation may soon see a gradual backpedaling from the criminal justice policies that have led to wholesale incarceration in recent decades.” Monday’s announcement might be evidence of just such backpedaling.

More fallout from the Jack Abramoff investigation

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The Washington Post reports today on the sentencing of Bush White House official David Safavian, former chief of staff at the General Services Administration. Safavian was convicted of lying to federal investigators about thousands of dollars worth of perks and benefits he received from corrupt lobbyist Jack Abramoff. I think it is useful to follow the ripples left by the Abramoff affair because he is the paradigmatic example of what is both great and problematic about snitching. The great version: a bad guy cuts a deal with the government that exposes even worse guys, or “bigger fish,” and heightens public awareness of flaws in the system. This is the best argument for offering lenience to serious offenders–on balance it can create a greater public good, and indeed Abramoff’s conviction and cooperation has led to numerous other convictions and stronger ethics rules. The problematic version: Abramoff received a four-year sentence for his massive and ongoing corruption, not to mention a lesser sentence on a totally unrelated fraud charge in Florida. Had Abramoff sold a tablespoon of crack cocaine he would have gotten more prison time. Moreover, his cooperation has resulted in convictions of just a few “big fish”: Congressman Bob Ney, Deputy Interior Secretary Steven Griles, as well as today’s Safavian. While there have been other related convictions, they have mostly been of aides, other lobbyists, or players less powerful and culpable than Abramoff himself. Were these convictions worth letting the poster-child for corrupt lobbying off so lightly? This is the perennial dilemma with snitches: it is very hard to know whether we are actually getting more security and justice by letting them off the hook, or whether we too easily forgive serious wrongdoing in the name of cooperation.