The common law "informer's privilege" generally shields an informant's identity, but countervailing constitutional or policy considerations may result in court-ordered disclosure. In Roviaro v. The determination whether to disclose the identity of a confidential informant requires the court to balance "the public interest in protecting the flow of information against the individual's right to prepare his defense.
Accordingly, the administrative and operational rules and procedures employed by the FBI ensure careful evaluation and oversight of informants and that appropriate expertise from both the FBI and DOJ is employed to evaluate informants who present the greatest risks and benefits to the interests of the government. The Confidential Informant Guidelines prescribe the process by which FBI Special Agents and their supervisors propose, approve, and operate confidential informants.
We summarize below the major steps in that process. Suitability Reviews The Confidential Informant Guidelines prescribe how FBI agents are to obtain approval to evaluate and operate confidential informants. The period during which an individual is evaluated as a prospective informant is called the "Suitability Inquiry Period. A proposed informant may remain in "suitability inquiry status" for up to days with an extension of an additional days.
At this juncture, the case agent must document in the CI's files: a photograph of the CI; the [FBI's] efforts to establish the CI's true identity; the results of a criminal history check for the CI; the Initial Suitability Report and Recommendation; any promises or benefits, and the terms of such promises or benefits, that are given a CI by the [FBI] or any other law enforcement agency, if available to the [FBI]; any promises or benefits, and the terms of such promises or benefits, that are given a CI by a federal prosecuting office or any state or local prosecuting office, if available to the [FBI]; and all information that is required to be documented in the CI's files pursuant to the CI Guidelines.
The FBI's determination of a source's suitability to serve as a confidential informant is a pivotal judgment. Since the revisions to the CI Guidelines in January , judgments about registering and retaining high-risk or particularly sensitive informants have been jointly made by the FBI and senior DOJ prosecutors. In addition, the Confidential Informant Guidelines require additional scrutiny and higher approval levels for confidential informants who fall into any of the following three categories: Long-tern confidential informants, defined as those who have been registered for more than six consecutive years; High level confidential informants, defined as individuals who are part of the senior leadership of an enterprise that a has i a national or international sphere of activities, or ii high significance to the FBI's national objectives, even if the enterprise's sphere of activities is local or regional, and b engages in or uses others to commit activity that qualifies as Tier 1 Otherwise Illegal Activity under the Guidelines; and Privileged confidential informants, defined as individuals who are under the obligation of a legal privilege of confidentiality such as doctors, lawyers, and clergy or individuals who are affiliated with the news media.
The instructions convey to the CI the scope of the informant's authority, the limits on the FBI's assurances of confidentiality, prohibitions against certain types of activity, and the possible consequences of violating these conditions. In addition, if applicable, the case agent must add the following instructions: the FBI on its own cannot promise or agree to any immunity from prosecution or other consideration by a Federal Prosecutor's Office or a Court in exchange for the CI's cooperation, since the decision to confer any such benefit lies within the exclusive discretion of the Federal Prosecutor's Office and the Court.
However, the FBI will consider, but not necessarily act upon, a request by the CI to advise the appropriate Federal Prosecutor's Office or Court of the nature and extent of his or her assistance to the FBI; the CI has not been authorized to engage in any criminal activity and has no immunity from prosecution for any unauthorized criminal activity; and no promises or commitments can be made, except by the Department of Homeland Security, regarding the alien status of any person or the right of any person to enter or remain in the United States.
As described in the next section of this chapter, if the informant is authorized to engage in "otherwise illegal activity," the FBI must provide additional detailed instructions addressing the scope and limits of the authority. For all categories of informants, the instructions formalize the relationship between the individual and the FBI.
If the constraints within which the informant is to operate are not clear and well documented, unnecessary risk results. Failure to adhere to the Guidelines' provisions requiring periodic instructions can result in claims by informants that they had authority from the FBI to commit crimes and can thereby jeopardize investigations and prosecutions of informants and others or result in civil liability for the government.
Authority to Engage in Otherwise Illegal Activity OIA The Confidential Informant Guidelines permit the FBI to authorize confidential informants to engage in activities that would otherwise constitute crimes under state or federal law if engaged in by someone without such authorization. Such conduct is termed "otherwise illegal activity" or "OIA.
Attorney in the district that is participating in the investigation utilizing the CI. Authorizing confidential informants to engage in otherwise illegal activity can facilitate their usefulness as a source of information to the government but may also have adverse consequences. As illustrated in the Bulger-Flemmi and Presser cases described earlier, the confidential informant's criminal activity can hinder prosecution of the informant's co-conspirators by prompting, for example, defenses of public authority or entrapment.
Moreover, OIA authorizations may have unforeseen consequences. For example, a decision to authorize a confidential informant to engage in bookmaking may create difficulties in prosecuting the informant or co-conspirators on charges related to the informant's activity. Before either level of OIA may be authorized, the authorizing official must make certain findings as to why it is necessary for the CI to engage in the OIA and assess whether the benefits to be obtained from the FBI's authorization outweigh the risks.
Specifically, the FBI must make a finding, documented in the CI's file, that the authorization for the CI to engage in the Tier 1 or Tier 2 OIA is necessary either to obtain information or evidence essential for the success of an investigation that is not reasonably available without such authorization, or prevent death, serious bodily injury, or significant damage to property, and that in either case the benefits to be obtained from the CI's participation in the Tier 1 or Tier 2 OIA outweigh the risks.
The instructions must address the limits of the authority, the specific conduct authorized, the time period specified, prohibitions on certain behavior, including acts of violence and obstruction of justice, and the consequences to the CI of operating outside the authority granted.
In addition, if the OIA is extended past the initial authorized time period, the informants must receive and sign the instructions pertaining to the OIA every 90 days. The SAC must also address other important issues triggered by the UIA, including whether the case agent or handler has attempted to intercede on behalf of the informant or to make any recommendations to state or local authorities regarding the informant's case.
FBI officials and prosecutors we interviewed during this review told us that when FBI agents get too close to their sources, they sometimes improperly intervene to assist their informants if they are arrested or run into other difficulties. The Guidelines require that the unauthorized illegal activity must immediately be brought to the attention of senior FBI field office and Headquarters personnel, as well as the U.
Attorney, so that a careful reevaluation is made of the informant's suitability in the following circumstances. First, if the FBI has reasonable grounds to believe that a confidential informant who has current authorization for Tier 1 or Tier 2 otherwise illegal activity has engaged in any criminal activity that is not authorized, the SAC must immediately notify the U.
Second, if the FBI knows that a confidential informant who has no current authority to engage in otherwise illegal activity has engaged in any criminal activity, the SAC must also immediately notify the U. Such notice is not required, however, when a state or local prosecuting office has filed charges against the informant for the illegal conduct, there is no clear basis for federal prosecution, and federal prosecutors have not previously authorized the CI to engage in Tier I OIA or been involved in an investigation that is utilizing the CI.
If these steps are not taken and the informant continues to operate, serious complications may develop, including situations where prosecution of the informant is jeopardized because the informant claims the government acquiesced in the continuing illegal activity. As described in the following case study, the FBI's informant relationship with Scarpa, a "capo" of a New York organized crime family, became controversial in several significant federal prosecutions in the s.
According to testimony presented in these cases, Scarpa's FBI handler ignored unauthorized criminal activity by Scarpa; revealed confidential law enforcement information to him, including the FBI's planned surveillance of a mob hangout; and helped Scarpa's son avoid arrest.
His relationship with the FBI and, in particular, with his sole handler, R. In some cases, Scarpa's status as an FBI informant was known during trial; in another, it was not revealed until post-conviction motions were filed and Scarpa had died.
Victor Orena and Pasquale Amato. In two separate federal trials in and , juries found Victor J. Orena, the "acting boss" of the Colombo Family, and Pasquale Amato guilty of racketeering, conspiracy, and firearms charges. The events leading to the convictions of Orena and Amato stemmed from the "Colombo Wars," a power struggle between two Colombo factions, the Persicos and the Orenas that lasted from the fall of through the spring of Both defendants were sentenced to life in prison, and the Second Circuit affirmed both convictions and sentences.
Years after their convictions and following exhaustion of all appeals, Orena and Amato filed motions for dismissal of their indictments or for new trials alleging a violation of the government's disclosure obligations under Brady v. Their motions were based upon DeVecchio's "questionable ethics and judgments" as revealed in proceedings in another case. After learning that Scarpa was a long-time FBI informant, Orena and Amato contended that it was not they, but DeVecchio, who conspired with Scarpa to instigate the Mafia war and caused the killing of their partner and loan shark, Thomas Ocera, one of the murders for which Orena and Amato were convicted.
The trial court denied the post-trial motions. Orena v. However, the court closely examined the relationship between DeVecchio and Scarpa, who rose to the position of a "capo" or captain in the Colombo family. According to the trial court, in the s and perhaps as early as the s, Scarpa had been regularly in touch with an FBI agent.
The relationship was broken off until DeVecchio succeeded in renewing Scarpa's informant status in December As a "top echelon" informant, Scarpa initially provided the FBI with information pertaining to organizational activity and personnel movements within the Colombo Family. After the Colombo Wars commenced in late , he provided detailed reports of perpetrators and strategic planning of the opposing factions.
The court found that DeVecchio reciprocated by passing along unauthorized information to Scarpa. For example, evidence was presented indicating that DeVecchio warned Scarpa of his pending arrest on federal credit card fraud charges and may have intervened with the sentencing judge to request lenient treatment.
There also was suspicion that in DeVecchio leaked to Scarpa information that the Wimpy Boys Social Club, a favorite Colombo gathering place, was subject to court-ordered electronic surveillance; that he tipped off Scarpa to the planned DEA arrest of his son, Gregory Scarpa Jr. In early April , DeVecchio initiated the process of having Scarpa re-opened, and the FBI granted authority to re-open Scarpa on April 8, , pending completion of a suitability inquiry.
During the summer of , Special Agent Christopher Favo, who was working with DeVecchio during the investigation, became strongly suspicious of DeVecchio. Believing that DeVecchio was engaged in misconduct and fearing that he might disrupt current investigations, Favo began to withhold information from DeVecchio pertaining to Scarpa. Other subordinates of DeVecchio's suspected that Scarpa was a murderer, but none of them reported their suspicions about Scarpa or DeVecchio to superiors or to the United States Attorney despite the fact that the Informant Guidelines required agents to report any knowledge of an informant committing violent crimes.
Shortly thereafter, a federal indictment charging Scarpa with the commission of the three murders, among other crimes, was handed down. Scarpa was released on bail under strict house confinement as one of the conditions of release because of failing health. In late December , his bail was revoked because of his involvement in a shooting.
Scarpa was sentenced to ten years in prison in December after pleading guilty to two counts of murder. OPR determined that DeVecchio was appropriately a subject of investigation. Scarpa died in a federal prison in June In its ruling on Orena's and Amato's motions for dismissal of their indictments or new trials, the district court held that 1 the defendants either knew or should have known that a member of the organized crime family to which they belonged had acted as an informant, so the government's failure to disclose that fact did not warrant a new trial; 2 evidence that a government agent had leaked information to an informant and that a second government agent had concerns regarding the relationship between the first agent and the informant was not material to the Government's charges, so the Government's failure to disclose did not warrant relief under Brady; and 3 newly discovered evidence did not warrant a new trial.
On the issue of leaking information to an informant and the relationship between DeVecchio and Scarpa, the district court observed that while the CI Guidelines provide guidance on "sanctioning criminal conduct on the part of informants where necessary 'to establish and maintain credibility or cover with persons associated with criminal activity under investigation,'" the "line between the value of an informer and the unreasonable risks of encouraging serious criminal activity requires judgment of senior supervisors with sound ethical compasses; people in the field are often not in a position to provide the necessary direction.
The court noted that, according to the Attorney General Guidelines, the FBI does exercise control at the supervisory level in Washington and locally. In the case of Scarpa, however, "these administrative controls failed to work because DeVecchio was not properly supervised locally and because.
Victor Orena, Jr. In June , a jury acquitted seven reputed associates of the Orena wing of the Colombo family of conspiring to murder members of the rival Persico faction of the family. Scarpa's status as an FBI informant became a pivotal issue during the trial.
Fellow FBI agents testified that they had become suspicious of DeVecchio and were particularly concerned that he had fed confidential information to Scarpa which helped him to evade arrest. Scarpa's relationship with the FBI generated post-trial motions in another case following the conviction of LCN defendants on murder and conspiracy to murder charges. In that case, in March , the trial judge granted a motion for a new trial to Anthony Russo, Joseph Russo, and Joseph Monteleone, finding that the Government had improperly failed to disclose evidence bearing on Scarpa's credibility.
The Court of Appeals reversed that portion of the district court's order that granted a new trial, rejecting the trial court's conclusion that evidence that Scarpa lied to the FBI about his involvement in certain other murders gave rise to an inference that he lied to his co-conspirators about the murders in question. Deactivation of Confidential Informants Due to the risks involved in operating informants and the corresponding need to closely supervise their status and operation, the Guidelines prescribe that certain steps be taken in the event a confidential informant is deactivated or "closed.
Such actions that might give "cause" include but are not limited to: disbarment; unauthorized criminal activity; incarceration; failure to follow instructions; violation of any parole, release guidelines or agreements; providing unreliable information, etc. Attorney's Office is either "participating in the conduct of an investigation" that is utilizing a CI or "working with a CI in connection with a prosecution," the FBI must coordinate with the prosecuting attorney assigned to the matter, "in advance whenever possible," regarding specified decisions relating to the CI, including a decision to deactivate a CI.
There have been many cases in which the confidential informant's status was unknown to the prosecution, among them the Bulger-Flemmi matter described above in CI Case Study No. Flemmi and Bulger were opened, then deactivated or closed for various periods of time when they became suspects or targets of other investigations. According to prosecutors who are familiar with their FBI informant files, one could not tell looking at their files when they were opened, active, or closed as informants.
Moreover, if informants are closed but the FBI cannot document this fact along with any required revocation of OIA authority, the government becomes vulnerable to the defense that the FBI authorized the informant's illegal activities. As we discussed in Chapter Two, many of the modifications to the previous version of the Guidelines attempted to address administrative and management weaknesses that came to light during the Bulger-Flemmi matter.
Further revisions in May made only minor modifications to the Confidential Informant Guidelines. This provision was replaced in May by a requirement that the contact agent or "handler," along with an additional agent present as a witness, review the written instructions with the CI.
The removal of the verbatim requirement was needed, according to FBI Director Mueller, because "the verbatim instructions, written in often intimidating legalese, were proving to have a chilling effect, causing confidential informants to leave the program. Nonetheless, agents must clearly convey the content and meaning of each applicable instruction and document that the instructions were reviewed and that the CI acknowledged the CI's understanding of them.
The revised Guidelines emphasize that regardless of whether these instructions are given, the FBI has no authority to confer immunity, and agents must avoid giving CIs the erroneous impression that they have such authority. Attorneys' Offices of unauthorized illegal activity, approval of otherwise illegal activity, and deactivations. Were the Initial and Continuing Suitability reviews of confidential informants conducted within the required time period and was the required information provided?
Were the required instructions or cautions given to CIs at registration and periodically thereafter? Were applications to permit confidential informants to engage in OIA complete and timely, was the proposed OIA described in sufficient detail, and was the requisite approval obtained from the U.
Attorney's Office? Was unauthorized illegal activity by confidential informants reported when required by the SAC to the U. If confidential informants were deactivated "for cause" or other reasons, was the deactivation appropriately documented; was the informant notified of the deactivation; and, if the informant was authorized to engage in OIA, was the OIA authorization revoked and the revocation documented?
Taken together, we believe these five factors address critical judgments the FBI must make under the existing Confidential Informant Guidelines to ensure that those registered as confidential informants are suitable and understand the limits of the relationship, and that responsible DOJ officials approve, concur in, or are notified of significant developments in the informant relationship. The requirements we tested became effective days after issuance of the revised Confidential Informant Guidelines in January These requirements were unaffected by the May Guidelines revisions.
We also examined the role played by Confidential Informant Coordinators, who are GS through GS non-supervisory Special Agents who have the responsibility, as their principal assignment or as collateral duty, to assist FBI agents with issues associated with the administration and operation of human sources.
They wrote code and built betting robots that could automate the bets for them. They taught their friends about how their system worked, and got the friends to a point where they could work virtually independently. Much of their business was being done with online offshore sportsbooks, most of which were located in Costa Rica. Many of the proprietors of the websites headquartered there were people who had learned the business as illegal bookmakers in the United States.
Spanky flew down and worked out deals with the bookmakers to give him credit, rather than requiring him to post large sums of money and cash out through e-wallets like Neteller every time he won. If he could bet on credit, they could settle up stateside in cash. And bookmaking in Costa Rica was legal.
So nobody was doing anything wrong, they figured. One day, while Spanky awaited the birth of his daughter in the hospital, his partner went to a Dunkin Donuts to pick up some money an offshore book owed them. Then, as they got in their cars to leave, they were surrounded by police officers with their guns drawn.
Trap door? For what? The other employees, shaken, followed him out the door. He even expanded his operation beyond middling games, and together with his new brain trust developed new models that allowed him to take positions on games. Fundamental analysis is handicapping. You make numbers. Technical analysis, you look at the market. His team started spending their days watching screens with lines from sportsbooks all over the world, and using finely tuned models to analyze the various line movements and interpret what they meant.
In some ways it was similar to what day traders might do in the stock market. By , middling and steam betting had made Spanky what he deemed a fortune, and he had made a name for himself. After Congress passed the Unlawful Internet Gambling Enforcement Act in , it became next to impossible for American gamblers to deposit and withdraw money from offshore gambling sites.
Not all bookmakers decamped from the Caribbean, however. Those who stayed behind had to largely forgo doing business with the American market. Johnny Aitken, who went from working as a runner for a major gambling syndicate in Australia all the way up to becoming CEO of the Australia-based sportsbook PointsBet, watched it happen. But recreational gamblers either get lucky and win or they go broke, and if they get too lucky, too often they get banned. Either way there is a law of diminishing returns for the bookmaker who will tolerate no risk, unless that bookmaker can continually locate new, untapped pools of players, like an energy company constantly looking for new pockets of oil or gas buried beneath the shale.
These became the two prevailing models of bookmaking. On one side were the European-style books. On the other side were companies like Pinnacle, who offered lower odds and took on larger bets. Pinnacle and BetCRIS were known to let certain sharp players bet their lines before they went public.
The European way of cutting people off is really dumb. If someone is good enough to beat you why not use that information internally? Take the bet at a smaller amount and use it to move your line. One side gets a bet at house limits, the other side gets valuable information. This is the way it worked for many years, more or less. But according to Peabody, the days of posted limits and sharp players being able to bet started to end when William Hill arrived in Nevada.
Of the physical sportsbooks in Nevada, William Hill operates more than There are literally tens of thousands of customers in Nevada that are winners at William Hill. In the rare situation where we do prohibit someone from wagering with us, there are a variety of reasons why.
If someone tells you that the reason that they are prohibited from wagering with William Hill is because they are winning, they are not telling you the whole story. Total, total, utter bullshit and you can quote me on that. He had three kids, with a fourth on the way. His business had been profitable and predictable. His employees were happy. He was becoming a wealthy man. But the European-style changes in the market could potentially kill his livelihood.
That meant that he needed to keep millions of dollars in action to earn enough to support his family and his employees. And with so many sportsbooks refusing his action, he needed to get creative. They would provide Spanky with their own accounts to bet into with other bookmakers, and they could split the proceeds. These bookmakers already knew he was a winning player, and most leaped at the opportunity to make a profit off his plays, while at the same time taking a bite out of their competition.
Bookmakers were more skittish about taking on risk than Spanky had ever seen before. With so little independent data and analysis of their own lines, bookmakers were flinching at every shadow. I give him the money and take the betslip, then return to my chair in the front row. The game then appears on the screen, only the line is now Xavier They should have given Toledo MORE points, not fewer, to get someone to take the other side of the game and balance out my bet.
Instead, by moving the line in my direction, they were trying to entice me to bet more! I clutch my backpack and go back up to the counter to speak to the manager. Can I bet it again? When I return to my seat, the game flashes again, and this time the line goes back to Back to the counter, and another bet approved. This time, the line moves to You can keep sending people with new names and fresh money.
He was betting much smaller amounts. Instead of reacting to my bet, William Hill reacted to the lines moving at all the places Spanky was betting, from -5 to When I left the casino the line was already at Investigators overheard Spanky talking to the bookmaker about money he was owed.
I was just a bettor. Through those wiretaps, investigators traced an intricate web of bookies and bettors that stretched across the globe, and involved both illegal street bookies and a major Wall Street financial firm, Cantor Fitzgerald. They took him away in handcuffs. In all, they arrested 25 people in five states.
Spanky says he was a victim of a misunderstanding about how his business worked, that he was mistaken for a bookmaker when he was merely a bettor. He was placing bets through so many accounts and with so many partners, often with bookmakers who themselves were operating illegally in the United States, that it created a confusing web of cash moving back and forth among many parties on both sides of the law.
In all, Spanky was charged with enterprise corruption; fourth-, third-, second-, and first-degree money laundering; first-degree promoting gambling; and fourth- and fifth-degree conspiracy. As Spanky and Mike sat in jail, they contemplated their future.
Perhaps they should get out of the gambling business. Mike suggested they open up a hot dog stand. He took his first break from betting in 12 years. He joined a touch football league. He played in board game tournaments. Eventually he wondered what he was doing with his life. This is all I know how to do. His Princeton guys got scared and quit. His betting partners worried he was hot, maybe working with the feds. And his wife was terrified the police might come kicking in the door again. She asked him to promise it would never happen.
What he could promise her was that he would live his life out in the open. There would never again be any doubt which side of the counter he was on. They started betting again, building their bankroll back up. They had a few good football seasons. Things appeared to be getting back on track for them. It was like a dream come true. The work that Spanky had done his entire life—work that once required him to hide his identity, to meet people in back alleys to trade sacks of cash, work that led to his phones being tapped, his nest egg being confiscated, and his reputation dragged through the mud—he would finally be able to do with his head held high.
Showing astute foresight, William Hill signed a deal with Monmouth Park in , a full five years before the PASPA decision, at a time when few people were predicting the law would be overturned. But Mike thought it was worth a shot. Now these guys who run these casinos do not even gamble.
Could it be possible that bookmaking in New Jersey was going to be a return to the good old days? Spanky interrogated the manager for the video. From then on, Spanky was a man on a mission. As each new sportsbook opened in New Jersey, Spanky showed up. Each time he negotiated bet limits.
Each time he was welcomed by the sportsbooks with open arms. Casinos usually salivate over players willing to bet large amounts, wining and dining them and putting them up in free suites. The new sportsbooks in New Jersey were no different.
Four weeks I was there. Once I started winning, I had a big weekend and held 32 percent, they cut me off. Sometimes it was after a week of taking his bets. Sometimes within a couple of days. Each time he recorded it and posted the videos on Twitter. Each time his followers grew, cheering him on. After Pennsylvania legalized bookmaking and Parx Casino opened its sportsbook, Spanky tweeted that he was planning to go check it out. The Hard Rock, the most recent sportsbook to open in Atlantic City, welcomes his action.
He was the manager of the famed Stardust sportsbook in Las Vegas in the s and early s. While others are run by large international conglomerates pooling money from bets taken all over the world, the Hard Rock is backing the sports bets it takes with its own money. The three-day event was a trade show for the technology and data companies, many of whom are European, that hope to break into the fledgling American market.
Data and technology are the driving forces in sports gambling now, more closely resembling a bizzaro version of Wall Street. Bookies are now traders. Bets are positions. Instead of talking about fumbles or points or vig or juice, you hear talk of Python and stacks and hold and risk. Old-school bookmakers are being replaced by algorithms that do the work once done by armies of traders, whose jobs are now to oversee the systems that power the trading floor.
Well, I call them traitors. Gambling, it seems, is only what the customer is doing. Gambling is for suckers. It is simply finance. And it must never, ever lose money. Jon Kaplowitz, the head of interactive for Penn National Gaming, which is partnered with William Hill, was asked about their risk management strategy. I myself have personally been kicked out of all of your sportsbooks, as well as several of my colleagues, for the action being quote-unquote too sharp.
Later that evening, one conference attendee tells me he heard Spanky threatened to go after Asher with a baseball bat. When I tell him what Spanky actually said, the man seems a little disappointed. And other gamblers were patting him on the back and thanking him for taking a stand against the greedy corporations.
Long gone were the days of bettors grousing about his steam play, of calling him a bottom feeder. Spanky Kyrollos, however, knows a guy, and we get in no problem. All of the bets I made were either for games the following day or games currently being played. My work is already done.
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