GANGS In This Issue

Letter from the Deputy Attorney General Understanding Gangs and Gang Mentality: Acquiring Evidence of the Gang Conspiracy ...... 1 May By Donald Lyddane 2006 Volume 54 The National Gang Intelligence Center—Up and Running for 2006 .... 15 Number 3 Investigating and Prosecuting Gangs Using the Enterprise Theory ..... 15 By Marc Agnifilo, Kathleen Bliss, and Bruce Riordan Department of Justice Executive Office for United States Attorneys Specialized Tools for Use in Gang Cases ...... 23 Washington, DC 20535 ATF's Unique Technology, Investigative Experience, and Statutory Michael A. Battle Director Authority in Gang Prosecutions ...... 23 By Mark Kraft, Debby Scott, and David Chipman Contributors’ opinions and statements should not be considered an endorsement by The Special Operations Division's National and International Expertise . 27 EOUSA for any policy, program, or service. By Joseph S. Gerbasi and Meredith A. Mills The United States Attorneys’ Bulletin is published pursuant to Cyber-Technology in Gang Cases ...... 29 28 CFR § 0.22(b). By Stephen K. Brannon The United States Attorneys’ Bulletin is published bimonthly by Victim and Witness Challenges in Gang Prosecutions ...... 35 the Executive Office for United States Attorneys, Office of Legal By Heather Cartwright and Ronald L. Walutes, Jr. Education, 1620 Pendleton Street, Columbia, South Carolina 29201. Periodical postage paid at Immigration Authorities and Gang Enforcement ...... 42 Washington, D.C. Postmaster: Send address changes to Editor, By Claude Arnold United States Attorneys’ Bulletin, Office of Legal Education, 1620 The Criminal Division Offers Expert Advice and Assistance for Gang- Pendleton Street, Columbia, South Carolina 29201. Related Cases ...... 47 Managing Editor By Robert J. Raymond Jim Donovan Program Manager Gang Prevention: How to Make the "Front End" of Your Anti-Gang Effort Nancy Bowman Work ...... 52 Law Clerk Carolyn Perozzi By Phelan Wyrick, Ph.D. Internet Address www.usdoj.gov/usao/ reading_room/foiamanuals. html Send article submissions to Managing Editor, United States Attorneys’ Bulletin, National Advocacy Center, Office of Legal Education, 1620 Pendleton Street, Columbia, SC 29201. Understanding Gangs and Gang Mentality: Acquiring Evidence of the Gang Conspiracy

Donald Lyddane Intelligence Analyst Safe Streets and Gang Unit FBI Headquarters

I. Introduction now popular to be a "gangsta," the contemporary idiom for gangster. he following lyrical excerpts, taken A song like "Claiming My City" gives the from a CD entitled "Claiming My City," reader a glimpse into the "gangsta" mentality. Trepresent true-life proclamations of two This article will explore gang mentality and the prominent Washington, D.C. gang subsequent, anticipated behaviors of gang members. The lyrics, as recorded by them, members that investigators and may verbalize their attitudes, motivations, and exploit to collect information and evidence in lifestyles. gang investigations. I got dope and coke and all and I'm selling it... I'm killin' motherf***ers for the hell of II. Background it.... I'm the little one, but my gun's a lot bigger... I can't wait to read about another A vast number of urban, suburban, and rural dead n**ga in the g**damn obituary. communities are plagued by street gangs who control drug markets in many of their CLAIMING MY CITY (Montana Records) (1992). neighborhoods, engage in violent crime, and One of those gang members, an executive create an atmosphere of fear within those producer for the record company, was reputed to communities. Crimes committed by gang be a significant drug dealer at a local public members are not restricted to gang-sanctioned housing development. The other gang member offenses. The lifestyle of drug trafficking, was a primary enforcer for the gang that violence, and greed has created individuals whose controlled the public housing development. His value system is counter to that of society at large. reputation as a killer was well-known to local law Gang members will engage in criminal activities enforcement officers and other gang members. with little regard for the lives or safety of others. That gang member was later convicted of This lifestyle has contributed to increased drug and is serving a life sentence. trafficking, violent crime, and other criminal activity, which negatively impacts the quality of In today's society, many gang members life in many communities. Neighborhood-based compose and put their true-life experiences into gangs often control all, or at least a portion of, the lyrical form. Many are able to record their lyrics retail drug distribution in those areas. Their "retail at local recording studios, produce CDs, DVDs, labor force," those who sell drugs hand-to-hand at and videos, and distribute these items to local the street level, often are the neighborhood music stores by using the proceeds of illegal teenagers who join gangs for several reasons. criminal activities. Law enforcement officials must remain mindful of such money laundering For many teens, the primary motive to schemes and the opportunities to obtain become a gang member is money. However, gang inculpatory evidence in gang-related membership and lifestyle go beyond economic investigations and cases. It is equally important to motivation. Identity and recognition are powerful recognize that the lyrics demonstrate that the motivational factors to many teenagers. Many gangster lifestyle has become mainstream. It is gang trends such as "colors," hand signs, graffiti,

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 1 "gang writings," and tattoos, among other things areas. Local gangs can be just as violent and are directly related to the desire of the gang dangerous, if not more so, than nationally- member to be identified with, and recognized as, a recognized gangs. Some gangs, however, rapidly member of a particular gang. To many, a gang grow in size and sophistication, becoming constitutes a type of extended family. Gang multijurisdictional, even international in nature, identification symbols are merely visible signs of and can adversely impact countless communities a powerful group identity and unity, which are across this and other nations. Some prominent built on the simplest of bases–loyalty to fellow outlaw motorcycle gangs have evolved into members and to gang territory. international enterprises. Many prison gangs, such as the Mexican The news media and entertainment industry Mafia, continue to evolve into sophisticated have sensationalized gang crimes and the gang criminal enterprises, which control the criminal lifestyle to the point that it has become part of activities of street gangs. Nationally recognized mainstream America. This has contributed to the gangs, such as the , , Mara emergence, migration, and growth of a popular Salvatrucha 13, 18th Street, , "gangsta" subculture. Music, magazines, movies, Almighty and Queens Nation, and and the Internet serve as training vehicles on how Vice Lords Nation continue to demonstrate a to be a "gangsta." Increasingly, young teens are at propensity for violence and the ability to migrate great risk of being seduced by, and recruited into, and establish criminal networks in multiple this way of life. The promises of respect, money, communities. expensive clothes, cars, and other inducements, put youths from all backgrounds, neighborhoods, and income levels at risk. III. Gang definition This subculture has spread beyond the borders What is a gang? What is the difference of the United States. For example, several years between a crew and a mob? What is the difference ago authorities in Cape Town, South Africa, who between a mob and a gang? Are gangs criminal were struggling with a gang problem, invited gang enterprises? Can a "loose-knit" local crew be a expert, Sergeant Wes McBride of the criminal enterprise? If a group of individuals is County Sheriff's Department (now retired) to visit involved in criminal activity, but has no initiation their city and examine the problem. After rituals or outward signs of self-identification, such carefully evaluating the situation, which included as tattoos, hand signs, or graffiti, is it a gang? If a interviews with Cape Town gang members, group is not engaged in criminal activity, but has Sergeant McBride concluded, "they are just like initiation rituals and powerful self-identification our gangs." See Sergeant Wesley D. McBride, symbols, is it a gang? Because of the diversity in Remarks at the Columbus Ohio, Effective gangs, gang definitions have been debated for Strategies for a Limited English Proficient (LEP) decades, yet no clear national consensus has ever Community Conference (Aug. 31, 2005). He been reached. There is no standard national reported that the gangs were influenced by definition of a gang. Therefore, definitions can American music and films and emulated the change from one law enforcement jurisdiction to American gang subculture. One gang even called another. One common criterion used in virtually itself the "Americans." Id. every gang definition, however, is that gang It is no accident that gang styles of music, members are involved in continuing criminal language, and clothing have made a considerable activity. impact on popular youth culture. As previously Many police departments have no formal mentioned, gangs represent a powerful group mechanism in place to identify and document the identity, and the members are surrounded with the gangs operating within their jurisdiction. appealing aura of outlaw danger. The wearisome Therefore, statistics on the numbers of gangs, and cruel reality of gang life rarely matches the gang members, and gang crime are often fantasy, yet the power of the myth remains underreported and, thus, not accurate. The undiminished. absence of a universal definition for gangs and the The vast majority of gangs in the lack of accurate statistics impact intelligence United States are community or neighborhood- collection and sharing, target selection, based and adversely impact small geographical prosecution, and overall program management.

2 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 Gangs vary greatly in size, geography, 18 U.S.C. § 521(a). criminal sophistication, modus operandi, and their The National Alliance of Gang Investigators impact on the community or communities. There Associations (NAGIA) recommended the is great diversity in gang membership–all races following gang definition in its 2005 Gang Threat and ethnic backgrounds are included. Assessment: • There are white, black, Asian, Hispanic, and A group or association of three or more Native American gangs. persons who may have a common identifying • There are outlaw motorcycle gangs. sign, symbol, or name and who individually or collectively engage in, or have engaged in, • Immigrant gangs, youth gangs, drug gangs, criminal activity which creates an atmosphere intercity drug trafficking organizations, prison of fear and intimidation. Criminal activity gangs, and suburban and rural gangs also includes juvenile acts that if committed by an exist. adult would be a crime. Please note that the word "gang" may be used See 2005 Gang Threat Assessment (NAGIA interchangeably with a variety of similar names, 2005), 54, available at http://www.nagia.org/ including chapter, clique, club, crew, faction, PDFs/2005_national_gang_threat_assessment. mob, posse, and set. pdf. The term "street gang" is the term preferred In a publication by the Federal Bureau of by many local law enforcement agencies. This Investigation (FBI), the FBI defines violent gang term includes both juveniles and adults, and criminal enterprise as "a criminal enterprise designates the location of gangs, as well as their having an organizational structure, acting as a criminal behavior. A street gang may be defined continuing criminal conspiracy, which employs as a group that forms an allegiance based on violence and any other criminal activity to sustain various social needs and engages in acts injurious the enterprise." Violent Crimes and Major to public health and safety. Members of street Offenders Section, An Introduction to Violent gangs engage in, and have a history of engaging Street Gangs in the United States, (2d ed. 1999). in, gang-focused criminal activity, either (This publication is available only for distribution individually or collectively. They create an within the law enforcement community; See http: atmosphere of fear and intimidation within the //www.iir.com/nygc/youthGangDoc/7_justice3. community. Violence, random or directed, that htm.). benefits the members, the enterprise, the criminal activity, and the security of a gang's territory, are key aspects to violent street gangs. Interestingly, another definition of a gang is provided in a federal sentencing enhancement statute. "Criminal street gang" means an ongoing group, club, organization, or association of 5 or more persons-­ (A) that has as 1 of its primary purposes the commission of 1 or more of the criminal offenses described in subsection (c) (particular narcotic and violence-related crimes); Figure 1 Cash (B) the members of which engage, or have engaged within the past 5 years, in a continuing series of offenses described in A criminal enterprise can be described as any subsection (c); and union or group of individuals associated in fact, although not a legal entity. The fact that the (C) the activities of which affect interstate or individuals are engaged in a pattern of criminal foreign commerce. activity together constitutes a criminal enterprise.

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 3 Being "loose knit" does not preclude the group criminal associations outside its small from being a criminal enterprise. The use of gang organization and its members often lack vision. identifiers, such as initiations, hand signs, Such gangs may be effectively addressed through "colors," tattoos, gang rituals, signs, and symbols local intervention techniques or by local street- are not prerequisites for being considered a gang level law enforcement action. However, if left by the FBI. unchecked, this group will likely grow in criminal sophistication as its members become more savvy and engage in more serious crimes. V. Gang mentality

Gangs are tremendously diverse in make-up and criminal sophistication. What commonalities can possibly exist among an inner-city African- American neighborhood-based gang, a Caucasian outlaw motorcycle gang, and a Hispanic prison gang? The answer is gang mentality. This mentality is simply a philosophy toward life. This philosophy is sometimes described as the "thug life," "mi vida loca" (my crazy life), "smile now, cry later," "outlaw," or "1% er" (as in, only 1% of all motorcycle riders are outlaw motorcycle gang members). Clarence Lusane wrote in a 1999 internet commentary entitled, "Jailhouse Knocks: A Review of HBO's 'Thug Life in D.C.'": [T]hug life refer[s] to a lifestyle of professed Figure 2 Gangster with Cash and celebrated criminality. Echoing real and cinematic gangster's styles, a small, but significant segment of inner-city young black males have embraced a fatalism that envisions a heroic, shoot-em-out death with either their IV. Criminal sophistication "enemies" on the street, or with cops. Gangs vary by levels of criminal Clarence Lusane, Jailhouse Knocks: A review of sophistication, and, without intervention, every HBO's "Thug Life in D.C." (May 22, 1999), gang and every gang member will likely evolve in http://www.zmag.org/sustainers/content/1999­ criminal sophistication. The rate of evolution is 05/may_22lusane.htm. based on several factors, including: 1) the "Thug Life in D.C." featured an interview of strategic vision of one or more of the prominent an inmate while he was incarcerated. This inmate, gang members, 2) criminal opportunities, 3) a crew member in Washington, D.C. who was development of criminal associations, and 4) the arrested and convicted for shooting a police frequency in which the gang networks with other officer and later charged and convicted for an criminal contacts and gang associates. unrelated murder, proclaimed, "I'm the definition Many gangs (no matter the name of the gang) of thug." He stated that it was "in my blood" and are criminally unsophisticated. These gangs may if released from jail he would kill again and "do be involved in petty offenses and nuisance crimes. what I have to do to survive." See id. The members of such gangs may seek self- This inmate's outlook toward life, however, is identification through style of dress or other omnipresent, with no racial or ethnic boundaries. incorporated gang symbols. They may even It is "outlaw glamour" where the gangsters make assume the name of a nationally recognized gang their own rules; where they take and do what they such as "Crips." (They take such a name because want and worry about the consequences later; and they think, literally, "Crips are bad, we're bad, where respect is demanded and power rules. This [therefore,] we're Crips.") Yet such a gang has no lifestyle is the antithesis of prevailing societal

4 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 values. It is a subculture where bad is good and prior to committing an assault?" Detecting and good is bad. The ability to commit unthinkable identifying gang behaviors relative to criminal acts of violence against one's enemies, or to acts will aid the , the judge, and demonstrate proficiency in criminal ventures, is ultimately the jury to "see the conspiracy." envied and rewarded with respect and financial gain. It is a measure of one's success in life, as VI. Manifestation of the gangster epitomized in the aforementioned lyrics: "I got mentality: anticipated gang behaviors dope and coke and all and I'm selling it ... I'm killin ... for the hell of it." A. Continuing criminal activity This author has reviewed numerous transcripts of interviews, as well as audio and One of the obvious anticipated behaviors of video recordings, involving gang members who gang members is criminal activity. Numerous have adopted the thug mentality. For instance, a gang members are repeat offenders who have gang member in the Chicago area when asked to specific modus operandi and geographical areas of describe gang life, stated that "it was like heaven operation. As an illustration, during a gang and to me." He added that "it comes natural to us ... drug conspiracy investigation several years ago, a we go to war with other gangs every day ... we cooperating witness who had been involved with a just know how to do it." This young man was gang at a high level was debriefed by this author. convicted of attempting to kill a police officer. He The witness stated that he could not understand also stated that if he had not been arrested for the why there were drug treatment programs, but no shooting of a police officer, he would have treatment programs for weaning "high rollers off received a "high rank" or obtained other rewards of the money," adding that "once you taste it, from the gang. Another gang member from the you've got to have it." Just as a narcotics Los Angeles area described how his crack cocaine investigator might be able to accurately predict distribution business made him feel "like God." the recurring behaviors of drug addicts, an He recounted how people did whatever he wanted investigator can anticipate that high-level gang in exchange for a "piece of crack." Just as a career members will repeat certain criminal activities. In police officer or prosecutor may embody a sense addition, there may be times in investigations of self-identification and self-worth from his or when it appears that certain principal suspects are her professional calling and successes, self-esteem no longer criminally active. Knowledgeable for many who choose a gangster way of life investigators, however, can anticipate that such becomes dependant on their "thug" exploits. The suspects may change geographical locations or "gangsta" mentality affects everything they do and proceed in a more clandestine manner, but they who they are. will likely remain criminally active. It is not unheard of for a prosecutor to remark, "I don't see the conspiracy," to investigators B. Conspicuous gang violence during the course of a gang investigation. Violent behavior by gang members is easily Demonstrating that an array of criminal incidents anticipated. The gangs frequently will arm committed by a group of suspects are actually themselves for protection against thugs and other connected and are predicate acts of an ongoing gangs that attempt to infringe on their territory or gang conspiracy can often be difficult. Thus, it is steal their drugs. This creates a market for important for investigators and prosecutors to firearms and other weapons, and, not surprisingly, understand the gang mentality in order to the number of illegal gun runners has grown recognize the legal significance of actions by gang proportionately to that market. Many homicides members, as well as to predict future actions. and nonfatal shootings are directly related to Moreover, by understanding past and disputes between gangs, internal gang disputes, anticipating future behavioral manifestations, and/or gang members acting individually, or with investigators and prosecutors may question others because of personal "nongang" motives. witnesses and informants in a way that can reveal Tragically, many "innocent" people become gang motivations for individual actions and lead victims of gang violence. to acquiring evidence of the gang conspiracy. For example, a prosecutor or investigator might ask a witness, "Did gang members flash hand signs

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 5 C. Frequent disputes between gangs A. Graffiti

Events that spark disputes between gangs It has become common for gangs to use could be based on business (protection of drug graffiti as a form of communication. Graffiti turf, rip-offs, and outstanding debts owed to a marks gang territory, and often lists the names or member of another gang) or personal events nicknames of gang members, projects gangster (perceived disrespect in any form). Some gang attitudes, and addresses current events. Graffiti disputes rapidly escalate and lead to a series of can be found on walls, in jail cells, and in vacant violent acts occurring in a relatively short period buildings where gang members hang out. of time. These types of disputes may be high- Intelligence and investigative leads can be profile in nature and quickly noticeable to law obtained by monitoring and correctly interpreting enforcement and the public. Many gang disputes, graffiti. For example, following the death of a however, take place over a longer period of time, fellow gang member, surviving members may last for years, and are marked by multiple violent memorialize the fallen gang member by painting acts spread over the life of the dispute. These and writing his name in the form of graffiti. At disputes are not as readily noticeable to law times, the name of the gang that is suspected of enforcement and to the community-at-large. causing the death is also written in the form of graffiti. D. Internal gang disputes

These disputes can also lead to multiple violent acts among the members of a single gang. Business and personal events become the motives that spark deadly warfare between individuals who were "family" yesterday and "enemies" today. E. Rivalries

Gangs go to war with other gangs every day. Investigators and prosecutors should anticipate and attempt to determine all past and present gang rivalries. Extensive historical research can lead to identification of numerous past crimes that may be reinvestigated and used to support a conspiracy charge. Investigators can also anticipate that some gang members will commit violent acts during the course of the investigation simply due to recognized rivalries between gangs. VII. Gang communications

Do all gang members write graffiti, get gang tattoos, or compose true life proclamations in the Figure 3 Wall Graffiti form of hip-hop lyrics? No. A significant number of gang members do, however, to the point where B. Tattoos investigators and prosecutors must take advantage of such behaviors. Documentation of anticipated Gang tattoos are obvious symbols of an gang behaviors, such as the following, can serve individual's membership in a gang. Many tattoos as the cement needed to prove beyond a such as "outlaw," "thug life," "1%er," among reasonable doubt the conspiratorial links between others, are expressions of gang mentality and do defendants and predicate acts in gang not specify any particular gang. The meaning of a prosecutions. tattoo is in the eye of the beholder. It is important to question cooperating witnesses and informants

6 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 regarding which tattoos, if any, are identification to identify the gang signs and gestures—their symbols of the gang. nonverbal communication—and learn what they symbolize. They should also attempt to identify any criminal incidents where hand signs or other nonverbal gestures were used in furtherance of, or were a motive in, the offense.

Figure 4 MS-13 NLS (Northside Locos)

Figure 6 Hand Sign and Logo Drawing

Figure 5 Fresno Bulldogs C. Hand signs–Nonverbal communication

Several years ago, a young lady attended a dance-concert in Milwaukee, Wisconsin. She enjoyed the band so much that she leaped onto the stage to dance with the band. While dancing she gestured in sign language, "I love you," over and over. She did not realize that her gestures were almost identical to the Latin King hand sign. Several Latin King members who were on the dance floor observed her "I love you" gesture and perceived it as a blatant disrespect to the Latin King and Queen Nation. She surely did not realize that they planned to kill her. Her innocent gestures cost this woman her life. Her murder was Figure 7 Group Photo subsequently solved as part of a gang conspiracy investigation of the Latin Kings by the FBI Safe Streets Task Force in Milwaukee, Wisconsin. D. Written gang communications Gang members often devise and use nonverbal communications to disrespect rival Gang members view themselves as, and gangs and to alert fellow gang members of think like gangsters. This is reflected in their imminent combat. Investigators should always try writings. Simple doodling on school

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 7 notebooks, envelopes, address books, and performances for later sale. Composing lyrics communicating in internet chat rooms and and committing them to print is not limited to postings on message boards will often reflect any particular gang. The example is entitled gang mentality. Like graffiti, writings will "Mr. Man in Blue." The lyrics were recovered often identify other gang members. Some during the execution of a search warrant. See gang members chronicle their gang exploits in figure 10 on page 11. the form of diaries and drawings. The use of numbers and initials is prevalent to represent F. Productions the gang's name and other gang slogans. These numbers and initials will often be Some gang members will produce and written as graffiti, as well. Certain gangs have distribute audio and video recordings for sale in devised alphabets, ciphers, codes, bylaws, local music stores. This media and the associated constitutions, and bibles. Prison gangs packaging may also contain information of communicate extensively through the use of investigative value in a gang case. In addition, the gang investigator should be aware that gangs may codes and ciphers. It is not possible to explore launder money through the sale of these items. written gang communications in greater depth in this article. However, investigators can G. Home videos anticipate that gang members under investigation will use written communication Individuals and families capture special that may be exploited and used as evidence of moments and document their lives through the conspiracy. The FBI can provide expert photographs and home videos. Gang members do testimony and other forensic assistance in the same. Investigators should take the time to investigations involving written gang locate and review every photograph, video, and communications. home DVD and CD when executing search warrants. Gang members sometimes record their The first example of written gang own criminal offenses and various gang events. communication is a letter using Blood This author participated in a case in which a home symbols. Notice the use of initials and video, recovered as part of a gang investigation, numbers, as well as the drawing of a revealed a gang member displaying guns, drugs, pitchfork. The pitchfork represents a rival and cash in front of his young children, while gang of the Bloods and appears to be out of "gangsta" rap recordings played in the place within this document. The second background. That song's lyrics, "I got money and example is an example of doodling. Notice the power, money and the power," could be heard in the background as the gang member flashed how the author identifies himself with his cash toward the video camera and, with the help gang, "Wayne Wayne of SE Capers 501 of his four-year-old son, bagged what appeared to Lynch Mob." See figures 8 and 9 on pages 9 be a large amount of crack cocaine. and 10. H. Entertainment E. Lyrics Know where the local gang members seek Many gang members compose hip-hop entertainment. Ask where, and in which clubs, do lyrics that reflect true-life experiences. Search they hangout? Are there cable televison shows warrants of homes and jail cells often net such that feature local gangs and/or local gang writings. The contents of these writings members who are also budding entertainers? Are there radio stations that host "shout-out" hours frequently reflect the author's gang mentality where gang members can call in and "shout-out" and, in some cases, result in solid their names and the names of their gangs? If so, investigative leads. Occasionally, the writings do gang members use that air-time to pass can be used as evidence. Many gang members messages? An FBI case in El Paso, revealed frequent clubs where they can perform their that incarcerated gang members called into such songs, and a number of clubs record the radio shows to deliver coded messages in their

8 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 Figure 8 Gang Writing "Blood Symbols"

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 9 Figure 9 Writing on "Writing Tablet"

10 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 Figure 10 Lyrics "Mr. Man in Blue"

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 11 "shout-outs." In Washington, D.C., a cable K. Funerals television station aired a show that featured local hip-hop artists and gang members, which was Funerals, and events leading up to funerals, filmed in their gang neighborhoods. Gang are excellent opportunities to gather intelligence violence is prevalent in night clubs, bars, and on gangs and generate new investigative leads. similar gang hangouts and such violence can When a gang member is killed, investigators can precipitate more intense confrontations in the anticipate a series of events and activities that will community. It is recommended that investigators precede the funeral. Rituals are often held in the monitor police reporting of complaints, recovered fallen gang member's home territory. Gang firearms, and arrests at and around the specific members, associates, and friends will build establishments frequented by gang members. makeshift memorials consisting of photographs, bottles of the decedent's favorite liquor, and other I. Social events and festivals personal items. Surviving gang members may write "R.I.P."-type graffiti that may also reveal the Gang members enjoy large social events, such gang they believe is responsible. Some gang as festivals and outdoor concerts. With that in members will hold a "smoke-out," blowing mind, an investigator should, for example, marijuana toward the heavens, so the fallen gang anticipate that Hispanic gangs may attend festivals member may get one last hit of marijuana, and/or in celebration of Hispanic heritage. Such festivals a "pour out," actually pouring some of the fallen can provide excellent opportunities to gather gang member's favorite liquor on the ground, so gang-related intelligence through photographic he may have one last drink. surveillance and field interrogations. These events It is common for incarcerated gang members can also be the origin of subsequent episodes of and gang members in the community to discuss gang violence and gang wars. Likewise, the murder during phone conversations and in motorcycle "runs" and similar events often draw letters. Also, gang members will occasionally outlaw motorcycle gang members. For example, send flowers (in gang colors) to the funeral home at motorcycle swap meets, outlaw motorcycle and they may have hats and T-shirts made as a clubs will set up booths in an effort to recruit new memorial to the decedent. They often will wear members and sell items (sometimes stolen) in gang colors or the newly made hats and T-shirts to support of their club. The larger "biker" events the funeral services. and "runs" offer gang members an opportunity to network with members of other chapters and clubs. L. Explosives

J. Gang meetings Gang members have been responsible for several firebombing incidents where rival gangs Many gangs hold weekly or monthly meetings and cooperating witnesses have been targeted. A and meeting places can be varied depending on number of high-profile incidents of outlaw the ingenuity of the gang. Many gangs meet in motorcycle gangs bombing rival clubhouses have motel rooms or public parks and often attempt to been documented. This author, while a police disguise their meetings as benign social officer in Washington, D.C., recovered a gatherings. Gang investigators, however, should homemade fragmentary explosive device from a make every attempt to determine if, when, and "Born to Kill" gang member after he attempted to where meetings are to be held, and conduct detonate it at the residence of rival gang members. surveillance and intelligence operations when Investigators must ask cooperating witnesses and appropriate. Infiltrating gang meetings can informants if the gang has access to explosives. provide significant information for investigators. During the execution of search warrants, Several years ago, the FBI was able to monitor investigators should look for any bomb-making and record a large multistate gang meeting. In this material and instructions. See figure 11 on page meeting, representatives from various chapters 13. discussed methods and techniques for countering law enforcement.

12 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 Figure 11 "Quarterly News"

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 13 VIII. Killing of the conscience ABOUT THE AUTHOR

A firearm, a bulletproof vest, an illegal drug �Donald Lyddane is an Intelligence Analyst, supply, or a fancy communication device may be assigned to the Safe Streets and Gang Unit, at FBI an important "tool of the trade" for a veteran gang Headquarters. As the program manager for the member. The most important element of a FBI's National Gang Strategy, he develops gangster's success, however, is the ability to "kill strategies, guidelines, and recommends policies his conscience." Gang members must do things for gang investigative initiatives. Prior to joining that the average person would think morally the FBI, Mr. Lyddane served twenty-two years reprehensible. A person must "kill his conscience" with the Metropolitan Police Department in in order to murder someone at close range, or Washington, D.C. (MPDC); nineteen years in injure and cause despair without remorse or guilt. investigations with thirteen of those years as an A person with no conscience is capable of almost investigative supervisor. He investigated and anything, including betraying or "turning on" supervised joint MPDC/FBI task force those closest to them. During a recent gang in- investigations, including the first Racketeer service training, an Assistant United States Influenced and Corrupt Organizations Act, 18 Attorney in Los Angeles stated that he can always U.S.C. §§ 1961-1968, and Continuing Criminal count on gang members succumbing to greed, Enterprise, 21 U.S.C. § 848(c)(2) (RICO/CCE), treachery, and jealously. As a gang investigator or gang prosecution in the District of Columbia. Mr. prosecutor, always anticipate that certain gang Lyddane organized and began the first gang members and associates will have shifting intelligence unit in the MPDC and initiated a joint loyalties within the gang, scores to settle, lasting gang intelligence initiative with the FBI. Mr. grudges, and scorned friends or lovers. These Lyddane is a cofounder and past-president of the gang members may become your best witnesses. Mid-Atlantic Regional Gang Investigator's Association and cofounder and past-vice president IX. Conclusion of the National Alliance of Gang Investigators' Associations.a It is critical to know your adversary. Understanding the gang mentality and anticipating gang behaviors will aid investigators and prosecutors in acquiring physical evidence and securing testimony that will "connect the dots" in gang conspiracy investigations. Presenting evidence of the defendant's gang affiliation through exhibits of graffiti, written gang communications, videos and photographs, and video surveillance footage of the defendants at gang events is the adhesive that joins seemingly unrelated criminal offenses into the predicate acts of a gang conspiracy.�

14 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 The National Gang Intelligence Center–Up and Running for 2006

n 2005, the FBI spearheaded the creation of the (LEO) or by fax/phone to inquire about a National Gang Intelligence Center (NGIC) to particular person, gang, tattoo, or to request case Iintegrate gang intelligence from federal, state, support. The LEO site can be found at local, and tribal law enforcement. The mission of http://www.leo.gov/lesig/ngic.htm. It hosts gang- the NGIC is to support law enforcement agencies related products from federal, state, and local LE through timely and accurate information-sharing entities, and provides information regarding and strategic/tactical analysis focusing on the upcoming events and conferences, alerts or growth, migration, criminal activities, and bulletins, and links to news articles from across associations of gangs that pose a significant threat the country. to communities throughout the United States. By The NGIC will be an essential part of the leveraging the assets of multiple agencies, the overall LE effort to combat and dismantle gangs NGIC will be a centralized intelligence resource and will enhance the existing liaison and for gang information and support. coordination efforts of federal, state, and local As of June 2005, the NGIC is up and running. agencies. For more information, please contact The NGIC is designed to be a "one-stop-shop" for NGIC Chief Michael Brunton, (202) 324-6959. law enforcement (LE) entities to request information regarding gangs. LE entities can contact the NGIC via Law Enforcement Online

Investigating and Prosecuting Gangs Using the Enterprise Theory

Marc Agnifilo appropriately punish its core members. Unless the Assistant United States Attorney gang, or the targeted set of the gang, is District of dismantled, the investigation cannot be a complete success. However, this goal can be reached in Kathleen Bliss different ways. Smaller, less-established gangs may be dismantled by eliminating the leadership Assistant United States Attorney structure. Gangs reliant on the sale of narcotics District of Nevada can be destroyed by targeting those members most involved in the distribution chain, or by Bruce Riordan eliminating the supplier. The best way to Assistant United States Attorney dismantle well-established gangs with a Central District of California hierarchical structure and multiple gun and drug connections is to incarcerate as many of its key I. Introduction members as the evidence allows. This last approach, by which the gang's entire he primary goal of a gang investigation structure is brought within an investigation's Tis to dismantle the gang and cross-hairs, is known as the "enterprise theory" of

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 15 gang investigation. This approach is not without In order to prosecute gang members under precedent. For example, the federal government either RICO, 18, U.S.C. §§ 1961-68, or its sister used this model to cripple La Cosa Nostra in the statute, VICAR, 18 U.S.C. § 1959, the target gang United States over the last three decades. As the must first be defined as an "enterprise" under the nation's new organized crime and the perpetrators statutes. The theory of enterprise in of an ever-increasing percentage of the country's virtually every gang case is that the gang is a violent offenses, gangs have evolved to the point "group of individuals associated in fact." In order that federal law enforcement must pursue them to be so defined, the criminal group must have with the most powerful criminal statutes. some structure for the making of decisions and a core of persons who function as a continuing unit. II. Charging options The seminal case in this area is United States v. Turkette, 452 U.S. 576 (1981). So long as the Different federal statutes allow prosecutors to group being prosecuted exhibits the characteristics focus on gang members individually and in of an enterprise, it does not matter whether the combination. There are two broad charging charged entity is the gang as a whole (the United schemes that are particularly relevant to the Bloods Nation (UBN)) or a set of the gang (the enterprise theory of gang prosecutions. The first, Gangster Killer Bloods (GKB) set of the UBN) or the Racketeer Influenced and Corrupt some other discrete, structured unit of the gang Organizations Act, 18 U.S.C. §§ 1961-68 and the (the Newark, New Jersey faction of GKB). Violent Crimes in Aid of Racketeering Act, 18 The first question to be answered when U.S.C. § 1959 (collectively, RICO/VICAR) commencing a gang investigation is whether the charging scheme, is particularly well-suited to target group has the necessary structure and broad based, violent, and entrenched enterprises. continuity to be legally defined as a criminal The second, the drug conspiracy/continuing enterprise. If it does, the AUSA can proceed with criminal enterprise (CCE) charging scheme, is confidence that the criminal activities committed appropriate where the gravamen of the gang's by the gang, as part of its affairs, can be activity involves a coherent drug distribution prosecuted in federal court under the RICO or conspiracy. VICAR statutes. On the other hand, if the target The two schemes are tailored to different group lacks these attributes, the RICO/VICAR types of criminal entities. If a target group is option is not available. Remember, smaller, essentially a narcotics distribution organization, neighborhood gangs can possess a rudimentary the members of which may carry guns and engage leadership structure and some continuity of in a few provable violent acts, then the drug membership, which is all Turkette requires. Id. at conspiracy/CCE scheme is probably the 587. Even a fluctuating membership is not fatal to appropriate charging option. On the other hand, if a finding of enterprise. the target group is structured and highly violent, Some federal prosecutors have run into then the RICO/VICAR scheme is the appropriate difficulty with violent gangs that do not engage in vehicle. These charging schemes will be analyzed activities that affect interstate commerce, which is below. also a requirement under Turkette. Id. at 579. However, if it can be proven that the gang is A. RICO and VICAR involved in selling cocaine or heroin, or deals in guns manufactured out of state, the interstate In 1970, Congress passed RICO under 18 commerce element is generally satisfied. Other U.S.C. §§ 1961-68. Properly used, RICO allows a "economic" crimes, such as or interstate prosecutor to tell the entire story of a gang's transportation of stolen cars, can also satisfy the existence in an indictment and later to a jury. requirement. Every aspect of the gang and its history—including how it acquired its territory; The most obvious difference between RICO how it makes and disposes of its money; how it and VICAR is the number of predicate acts uses coded language, hand signals, and graffiti; required. RICO requires two predicate acts that and who it has killed and why—can be offered in are related to each other and show a continuity of one coherent story. criminal activity. 18 U.S.C. § 1962. VICAR requires the defendant to commit only one crime of violence as specified in 18 U.S.C. § 1959, and

16 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 to have done so in order to get or maintain a supervised, or managed by the defendant, and position in the charged enterprise. VICAR murder from which the defendant derives substantial is also a death-eligible offense. Id. at § 1959(a)(1). income or resources. It is Department of Justice (Department) What CCE offers that conspiracy law does not policy that any AUSA who is considering is a twenty-year mandatory sentence for what is charging a defendant with a violation of either known as the "basic offense," or a violation of 21 RICO or VICAR should contact the Criminal U.S.C. § 848(c). For a violation of Division's Organized Crime and Racketeering § 848(b)—which has additional requirements of Section (OCRS) at Main Justice for experienced leadership, drug quantity, and derived income legal advice at an early stage in the investigation. because it is aimed at the principal administrators, OCRS has mandatory approval over the charging organizers, or leaders of a narcotics trafficking of any RICO or VICAR counts in an indictment. enterprise—the mandatory sentence is life in See USAM §§ 9-110.101, 9-110.802. prison. In addition, the CCE statute has a death- eligible murder provision, found at § 848(e). This B. Narcotics conspiracy and Continuing provides that if the defendant is engaged in or Criminal Enterprise (21 U.S.C. §§ 846, working in furtherance of a CCE, or is engaged in 848) some other drug offense carrying a potential life sentence, and in the furtherance of the offense he The vast majority of gangs derive some commits an intentional killing, the defendant may income from the sale of narcotics or, for some be sentenced to death or life in prison. This is a (typically larger) gangs, from the "taxing" of drug viable charging option in cases where the AUSA dealers operating in its territory. If the members of has a provable murder committed during a large- the target gang are selling drugs in a coordinated scale drug conspiracy, but cannot, or does not fashion, then a drug conspiracy is a viable wish to, establish an enterprise under the RICO charging option. Conspiracy law is flexible statutes. enough to encompass a broad range of criminal conduct. For instance, a prosecutor can charge one III. Developing investigatory strategies master conspiracy with subsidiary schemes, or a single conspiracy involving different subgroups The prosecutor should be involved in gang committing acts in furtherance of the conspiracy. investigations at the earliest possible stage. This Also, with a drug conspiracy, the conspirators may mean spending time on a case which may be sentenced based on the reasonably ultimately is not prosecuted, or not prosecuted on foreseeable drug quantity sold by the whole the federal level. However, by getting involved group, and not merely on what each member sold early, the AUSA has the best opportunity to individually. Therefore, if the AUSA targets a assemble a substantial gang prosecution. In group that solely, or primarily, distributes developing the charging strategies and narcotics, he or she does not need to use the RICO investigatory goals, the AUSA should consider statutes. In such a case, RICO will not lead to a the following options. higher sentence and will serve to unnecessarily complicate the prosecution. A. Identify targets In appropriate cases, traditional conspiracy Unless the targets are identified at the outset, law can be used in conjunction with the CCE the AUSA's investigation will drift without focus. statute, 21 U.S.C. § 848(c). The CCE statute is Review arrest reports, interview confidential somewhat misunderstood. Many experienced sources and witnesses who are available, and agents and some prosecutors believe it is a statute consult with local law enforcement. Local law designed to prosecute groups of people, much like enforcement can help assess which gang is RICO or conspiracy law. However, CCE committing the most crime in the area. Local gang addresses individuals, specifically those who units can also be a great source of intelligence. organize, manage, or supervise a large drug Local gang officers often use field interviews to enterprise. The CCE statute requires a Title 21 identify gangs and their members. These felony violation that is part of a series of such interviews can elicit important admissions about violations undertaken by the defendant, in concert membership and photographs of the subject's with five or more other persons who are led, tattoos and clothing (which may indicate gang

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 17 alliance). Often, a gang officer generates a field enforcement agencies, possess an array of interview as a result of an incident, such as a computer software to assist in this endeavor. stabbing or drive-by shooting. Even though the Incident reports, addresses, license plates, cars, incident may not result in local prosecution, the telephone numbers, funeral attendants, report nonetheless identifies the suspect as a gang girlfriends—the list is only limited by imagination member, puts the suspect in a certain territory, and and the data entered—can be linked to targets of may contain other valuable information. the enterprise by using computer software such as Analysts Notebook, Casemap, and Redundant When the background work is complete, an Array of Independent Disks (RAID). Here are a AUSA should identify primary and secondary few other ideas for organizing the data. targets and run criminal histories. This will help determine what sentence a target may face in the • Time Line—A comprehensive time line for event of conviction. the investigation will allow the AUSA to make connections between events, which B. Create a "set book" and a "gang book" otherwise may have been missed. • Card Files—Reduce each target, subject, or A "set book" contains photographs of all potential witness to an index card or file, individuals arrested for drug offenses in a certain including drug buys, arrests, or other area. This is particularly useful if the gang information relevant to the investigation. concentrates its narcotics dealings in a discrete Consider using "Case Management" software. location. A well-maintained set book allows the AUSA to identify targets and subjects, as well as • Block, Building, or Apartment Files—As incarcerated defendants who may be willing to information comes in about different provide background information on the group. locations, start files on those locations. If the The set book is also an orderly way to display case goes well, search warrants can be drafted photographs to witnesses. Number the for these locations in short order. Also, photographs and, as additional photographs are organizing the information in this manner will included, note the date of inclusion. The set book allow the AUSA to see patterns of activity should be treated as though it will one day be a related to certain locations and may assist in a trial exhibit. forfeiture action. A "gang book" is often a subset of the set • Connection or Flow Charts—One of the most book. It identifies gang members in terms of difficult legal issues in gang and drug history, biographical information of active organization cases is whether the AUSA is members, geographical range of the gang's contending with one or more than one activities, and criminal records of members. organization or conspiracy. For instance, different drug gangs occasionally occupy the C. Analyze the scope of the organization same location. What might seem like one, unified gang may be a combination of two or After reviewing arrest reports, prior search three discrete groups selling narcotics near warrants, and interviews with confidential each other simultaneously. Well-placed sources, witnesses, and local experts the AUSA "inside" witnesses can help sort out which can make a preliminary determination of the scope target is associated with which gang, but of the organization. This analysis will help focus creating a flow chart to show multiple targets the investigation and outline the potential acting in concert will allow the AUSA to charging options. demonstrate the specifics of the narcotics conspiracy. D. Organize the data in a usable format • After the goals and targets are defined, information and data gathering will continue If all is going well in the investigation, through search warrants, electronic information will be coming in quickly. In order to surveillance, grand jury testimony, and bank give appropriate advice, the AUSA must know, records. At the outset of the investigation, the and have access to, as much data as possible. prosecutor should consult with his or her Fortunately, technology has developed such that office's Litigation Support Specialist and all United States Attorneys' offices, and most law Intelligence Analyst to develop a process for

18 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 organizing the evidence into a litigation that address many of these issues. The specialist friendly format (Sanction II) for use at trial. can also assist with the determination of whether the witness qualifies for Emergency Witness E. Witness issues Assistance Program funds used for relocating witnesses and can help locate other local and Witnesses drive an enterprise prosecution federal programs and grants devoted to victim- because they best understand the enterprise and witnesses. can testify about its structure and activities. These Jail separation and safety issues also witnesses may include the gangster's current and frequently arise for custodial witnesses in gang former girlfriends, wives, neighbors, and victims, prosecutions. Contact the United States Marshals as well as current and former gang members and Service or the Bureau of Prisons, depending on rival gang members. the custodial status of the witness, and alert the • Developing the witness base. agency to any dangers for the witnesses. Should the witness develop medical problems while in Enterprise witnesses can lay out the history of custody, inform the agency. There is nothing the criminal group and provide the structure wrong with assuring that the witness receives needed to substantiate the RICO charges. If the proper treatment or needed medication so long as AUSA intends to charge a target under RICO, precise logs of every perceived benefit are kept. CCE, or a long-term conspiracy he or she will This information can subsequently be provided to need several good "inside" witnesses to testify the defense in accordance with the Brady/Giglio about the history and structure of the enterprise. obligations. The investigatory strategy must be aimed at developing these types of witnesses. The If the witness faces charges or is under enterprise case will fail without them. investigation, resolve the charges with a plea agreement that takes into account all of the Event witnesses are knowledgeable about witness' criminal conduct, especially if the witness specific crimes or events relevant to the committed the crime or crimes as a member of the investigation. AUSAs need local police officers enterprise. Make sure that the witness and his or and detectives to maintain contact with the her lawyer understand the consequences of witnesses and to arrange witness interviews. In a withholding information about the witness' comprehensive gang case with many violent involvement in the gang. Put everything in writing racketeering acts, there could easily be 100 to 200 and make no promises outside of the four corners witnesses. Therefore, delegating witness of the plea or cooperation agreement. If the responsibilities is particularly important. witness engaged in a capital crime, the AUSA is There is often overlap between the two types required to consult with the Criminal Division's of witnesses, particularly with cooperating gang Capital Crimes Unit at Main Justice before members. There must be independent finalizing any plea. corroboration of the information provided by all gang witnesses, especially those connected to the F. Broaden horizons: Think like an enterprise. Corroboration can be as seemingly investigator insignificant as a telephone record proving that a defendant did indeed contact the witness on a Gang investigators remark that to be particular day. successful they need to "think like a gang • Special concerns. member." Prosecutors should heed this advice. Facts that may not seem relevant in a more routine Some potential witnesses will have "issues" conspiracy case may be highly probative to an or "baggage" and often they have special enterprise theory investigation. The prosecutor concerns. They may need relocation for their must broaden his or her scope of vision and think safety or counseling for substance abuse, and like a gang investigator to successfully use the many will have criminal histories. A victim- enterprise theory. Here are three suggestions of witness may need grief counseling or access to places to look for enterprise evidence. crime victims' funds to repair the harm caused by the gang. Each USAO has Victim-Witness • Use the prison system. Specialists who can assist in identifying programs

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 19 When bank robber Willie Sutton was asked prison gang investigators who can provide a why he robbed banks, he replied: "Because that's wealth of information. The team will have to sift where the money is." See Federal Bureau of through the intelligence, but there will be gold Investigation, Famous Cases, Willie Sutton, among the dross. For example, gang investigators available at http://www.fbi.gov/libref/historic/ may have prison videos of the target gang famcases/sutton/sutton.htm. Where should the congregating in prison or initiating a prison AUSA look for evidence when he or she is assault. pursuing an enterprise theory case against an Do not rely only on gang experts. Seek organized gang? Look "where the gangsters are." enterprise evidence in the communications Look into the prisons, because that is often where between incarcerated gangsters and their contacts the leadership element of the enterprise is found. on the outside. Cover all channels of It is in prison where gangsters are most organized, communication between prison and the street, and, in many ways, where they are most including telephone calls, mailings, and visitor vulnerable to investigation. Prison may be the end logs. The gangsters have to communicate with the of the line for gangsters, but it can be a starting outside world to exert influence on the street, and point for a gang investigation. each channel of communication can yield Certain gangs were "born" in the prison evidence. Intercept the letters, birthday cards, and system, but use their influence in prison to wield other notes sent to and from prison by the targets power on the street. For example, the Mexican of the investigation. Collect the prison phone calls Mafia, also known as "the Eme," originally (where recorded) made between targets. Gangsters formed in prison to provide protection for are aware that their phone calls are being Hispanic inmates from other organized prison recorded, but they may have to let slip valuable gangs. Over time, the grew in size nuggets of information in order to get their and power to become one of the most powerful message to the street. Additionally, visitor logs and violent prison gangs in the Southwest. The can identify trusted couriers of information too gang exerted control not only over the prison sensitive to be relayed on the phone. population, but also over its members and Finally, conduct interviews of gang associates outside the prison. The Mexican "dropouts" in prison. Every broad-based gang has Mafia's membership consists of Hispanic gang dropouts in prison—gang members who have members from various Southern California street either voluntarily or involuntarily resigned from gangs who, once incarcerated, abandon local participation in the gang. Not every dropout will rivalries and band together under the umbrella of contribute to the investigation. The AUSA will the Eme. have to sift the relevant from the immaterial, and "Members," or "brothers," of the Eme exert the accurate from the fanciful, but this is how to control over local street gangs outside of prison build an enterprise case. Similarly, key gang through trusted "right-hand" men known as "shot members are often incarcerated on local charges. callers." The shot callers are members of local Consider approaching the right target at the right street gangs, but they assert authority and control time. For example, pull court bail records and find over their particular gangs at the behest of a out who the gang's "boss" failed to bail out. That Mexican Mafia member. Below the shot callers person is a potential cooperator. If the AUSA has are "soldiers," who are essentially local gangsters confidential sources, inquire about disputes aspiring to become Mexican Mafia members. among different gang members. This could be Soldiers are required to "put in work," which helpful in deciding who to approach and when. means that they must commit a variety of illegal For all prison interviews, be conscious of the activities for the benefit of the Mexican Mafia to holding in Massiah v. United States, 377 U.S. 201 earn the trust of a brother. As an organization, this (1964). The Sixth Amendment right to counsel is enterprise can be very formidable. violated when the government deliberately elicits The organization of a gang like the Eme, incriminating statements from a defendant after he however, can also work to the advantage of the has been indicted and in the absence of his prosecutor. The strict discipline of the gang leaves counsel. Id. at 206. Be sure to review Massiah and significant trace evidence in its path. The its progeny in the respective circuit before investigative team can gather intelligence from conducting prison interviews, and maintain a clear many sources in prison. AUSAs should interview

20 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 line between gathering historical evidence and • Follow the money. actively pursuing intelligence in prison. Where there is smoke, there is fire, and where • Look for association evidence. there is money, there are records of it. Thus, if the gang makes any profits from its criminal activity, Gangs members associate. The more there will be some record of that activity. organized the gang, the more disciplined the Gangsters do this to protect their own interests. If association. Organized criminal gangs operate like they are collecting money on behalf of the businesses or organizations, where rank and enterprise, they have to keep some form of record respect within the pecking order are essential. to prove that they are not "shorting" the Experienced investigators know that "respect, enterprise. The records are a form of insurance for power, and money" are the driving forces behind the rest of the gang. There is no honor among organized crime. Thus, when investigating thieves and there is even less honor among organized gangs, the prosecutor should look for gangsters who are making money from their evidence of the organization's rules and illegal activities. Wherever there is money, there regulations, which often include a ban on will be a dispute over shares. cooperation with law enforcement. AUSAs should also search for evidence of the gang's methods and California's Hispanic gangs control local drug means of enforcing those rules. For example, distribution by levying a "tax" or "rent" on breaches of any of the rules can result in a "green neighborhood drug dealers, who agree to make light," which is authorization to assault or even such payments in exchange for the right to deal kill another gang member, depending on the safely in a particular gang's territory. The local nature of the violation. For Hispanic gangs, such gangs, in turn, will remit a portion of those "green light" assaults or are usually collected "taxes" to the Mexican Mafia to carried out by local gang members who execute guarantee the safety of any of its incarcerated the order to curry favor with the leaders or shot gang members. callers of the gang or Mexican Mafia. To make this racketeering enterprise function, AUSAs need to collect "association" evidence the gangsters have to keep track of the payments. such as photographs and mementos of gang One method used is to mark the individual bills or membership. Hard-core gang members routinely stacks of bills with some form of source notation. take photos of themselves and their colleagues "in Look for money orders, wire transfers, and large association," flashing signs, wearing colors, and cash receipts. displaying tattoos. This is as true of motorcycle Such records provide valuable documentary gangs like and the Mongols as it is evidence of the existence of the enterprise for the of Hispanic street gangs like 18th Street or MS­ prosecutor and, when he or she collects it, there is 13. The gang members routinely keep this type no need for a dirty witness to introduce or discuss evidence as mementos for themselves or, more it. Any documentary evidence that the AUSA can importantly, as proof of their bona fides both to introduce through witnesses who are neither members of the gang and to rivals. Organized gangsters nor criminals is worth its weight in gangs have a pecking order or chain of command, gold. however informal, and the chain of command is always subject to change. Thus, each individual gang member who worked hard to make his way G. Do not forget asset forfeiture up the ladder needs to keep proof of his progress and association within the gang. A personal letter Finally, do not just follow the money. Seize it from the gang's shot caller, or a cherished photo and forfeit it. When indicting a case, be sure to depicting all of the "veteranos" of a gang is just as utilize all available forfeiture statutes in the important to the hard-core gang member as a law pleadings, notably 21 U.S.C. § 853 (drug school diploma or a "handshake" photo with the forfeitures) and 18 U.S.C. § 982 (money United States Attorney is to the federal laundering), as appropriate. RICO's forfeiture prosecutor. It is very important to find the statute, 18 U.S.C. § 1963, is particularly well- association evidence. suited for dismantling highly-structured or more sophisticated criminal enterprises that may have accumulated varied valuable assets or that have used businesses and bank accounts to facilitate

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 21 operations. Keep potential forfeitures in mind ABOUT THE AUTHORS during the course of the investigation. For example, a motorcycle gang might own a bar or �Marc Agnifilo is an Assistant United States "clubhouse" which warrants forfeiture, while Attorney for the District of New Jersey. He is the other gang "assets" do not (real properties former Chief of the Violent Crime Unit and the contaminated by methamphetamine labs). Street- current Anti-Gang Coordinator. For the past six level drug gangs tend to spend their proceeds years, he has led the office's efforts in the quickly and generally do not acquire substantial prosecution of the Bloods, Crips, MS-13, and assets. However, for gang leaders who do profit, other violent organizations. Previously, Mr. forfeiture is another legal means to "hit them Agnifilo was an Assistant District Attorney in where it hurts." Manhattan. If forfeiture does not yield a specific valuable �Kathleen Bliss is an Assistant United States asset, the forfeiture of a sum equal to the amount of the gang's criminal proceeds not only has Attorney for the District of Nevada, assigned to the Organized Crime Strike Force since 2000. symbolic value, but can also sometimes be collected through the forfeiture of untainted Previously, Ms. Bliss served as an AUSA for the District of New Mexico in the Violent Crime "substitute assets." Consult with the local forfeiture AUSA, and/or the Criminal Division's Section and as an AUSA for the Northern District of Oklahoma in the Civil Division. She also Asset Forfeiture and Money Laundering Section (AFMLS) or OCRS regarding forfeiture early in served as a Trial Attorney in the Criminal Division at Main Justice. the investigation, and as often as necessary, to insure that forfeiture is fully integrated into the �Bruce Riordan is the Deputy Chief of the efforts to dismantle the gang. Organized Crime and Terrorism Section for the Central District of California, as well as the Anti- IV. Conclusion Gang Coordinator. For the past several years, he has led a federal task force in Los Angeles Enterprise theory prosecutions target investigating the criminal activities of the 18th criminals in their collective groups, rather than Street Gang, the Mara Salvatrucha, and the focusing on isolated episodes of their criminal Mexican Mafia.a conduct. As a result, although the enterprise theory of prosecution is not appropriate for every The authors sincerely thank Kevin Carwile, gang case, it should be a part of any Deputy Chief of the Criminal Division's comprehensive anti-gang strategy. An enterprise Organized Crime and Racketeering Section, for theory case provides a full picture of a street his guidance in developing and preparing this gang's criminal activities and the resulting article. punishment and deterrence can prove more extensive and effective than stand-alone cases. Enterprise theory prosecutions can also impact entire communities, rather than individuals. For example, according to local officials, the RICO prosecution of twenty-two Rolling 60s Crips gang members in North Las Vegas, Nevada, reduced the crime rate in the area by as much as 31 percent over a two-year period. In short, enterprise theory cases are certainly resource-intensive, but if the goal is to dismantle an organized street gang, it is wise to consider the option.�

22 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 Specialized Tools for Use in Gang Cases

ince the number of criminal the quality of these oftentimes difficult and investigations initiated by federal law complex prosecutions. Some of these "tools," Senforcement targeting violent, organized including ATF's unique technology and gangs, as well as the number of gang-related experience, the Special Operations Division's indictments obtained by United States Attorneys' national and international expertise, and the offices and the Criminal Division, continues to Cybercrime Lab's one-of-a-kind technological increase, prosecutors may find that the use of expertise, are discussed in the following three specialized law enforcement tools will enhance articles.

ATF's Unique Technology, Investigative Experience, and Statutory Authority, in Gang Prosecutions

Mark Kraft criminal gangs contribute to this dilemma. To Senior Special Agent citizens who live in fear, the worst gang in Bureau of Alcohol, Tobacco, Firearms and America is the one that is in their Explosives neighborhood—the one trying to recruit their child at school, the one selling drugs on their block, the one whose stray bullet ended the life of Debby Scott their neighbor's child. Program and Management Analyst Bureau of Alcohol, Tobacco, Firearms and Gangs are using increasingly sophisticated Explosives firearms and weapons and are frequently involved in drug trafficking crimes. PSN task forces report that gangs are a key element of their gun violence David Chipman problem and, in many areas, the primary problem. Chief, Firearms Program Division The strategy used by a number of districts to Bureau of Alcohol, Tobacco, Firearms and reduce gang violence is to use the PSN team Explosives infrastructure to focus on the entire street gang and bring charges under the Racketeer Influenced I. Introduction Corrupt Organization Act, 18 U.S.C. §§ 1961-68, and drug conspiracy violations. roject Safe Neighborhoods (PSN) The hallmarks of the strategy are as follows. challenges federal prosecutors with the Pdifficult task of defining their • The partnerships between federal, state, and community's unique crime problem. Even more local enforcement agencies led by the U.S. complex is the challenge of determining how Attorney's office in each judicial district.

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 23 • The implementation of a focused strategic to expeditiously compare shell casings or bullet plan that allows each participating agency to fragments recovered from separate shootings, lend its expertise to solve the problem. through the use of computerized imaging systems, as well as support from forensic examiners. It also • The training that provides officers, special allows examiners to compare the unique agents, and prosecutors with the knowledge "signatures" or markings of projectiles fired from and skills they need to successfully take recovered firearms to recovered evidence. Every violent offenders and organizations off the major population center in the United States has streets. access to NIBIN technology. • The accountability that is demonstrated in In Stockton, California, gang-related crimes terms of safer neighborhoods. are rampant, and the local police are diligent The Bureau of Alcohol, Tobacco, Firearms about recovering all ballistic evidence found at and Explosives (ATF) has extensive investigative crime scenes. In one shooting incident, police experience and statutory authority over the "tools recovered a 9mm Beretta semiautomatic pistol. of the trade" (firearms) that make gang members a Police discovered that the firearm was linked to threat to public safety. ATF has instituted a twenty-six separate crimes, including three multifaceted approach to combat the problem of homicides, by using NIBIN. Police departments gangs in America. This strategy recognizes that nationwide that make use of NIBIN are seeing the gang problem is vastly different from one real results and, consequently, crimes are being community to another. Yet, no single initiative, solved. investigative technique, statute, or preventive measure will always be the most effective. B. Firearms tracing and crime gun analysis Gangs in one community may be organized into a large criminal conspiracy. In another Firearms tracing is the next step in the community, the gang problem can take the shape investigative process. Tracing is particularly of a loose-knit neighborhood group. Both important because it helps law enforcement communities have serious problems, and ATF—in agencies identify the purchasers of firearms and partnership with local police and U.S. Attorneys' how firearms are being diverted to the criminal offices nationwide—has developed strategies to element. From the moment a firearm is solve each community's specific problems. manufactured, business records follow its movement through commerce. When firearms are Accurate and timely intelligence is the recovered by police, equally detailed records are foundation for removing the worst offenders from also created, reflecting when, where, and from the larger, more organized criminal groups. ATF whom guns are recovered. Firearms tracing is the uses unique programs and assets under PSN to conduit through which these two sets of records disrupt the conspiracies of gangs that rely on become interconnected. complex organizational structures to further their criminal ambitions. Firearms tracing can become a powerful source of intelligence and even evidence, II. Putting the pieces of the puzzle particularly in gang investigations. The tracing process provides important links by examining the together: Intelligence and analytical purchasing patterns of traffickers to gang resources members. Prosecutors use this information to prove the structure and hierarchy of a gang. A. National Integrated Ballistic Information Network ATF has a one-of-a-kind firearms tracing infrastructure that is integral in the fight against violent crime. As the only agency authorized Through the use of ATF's National Integrated under federal law to conduct firearms tracing, Ballistic Information Network (NIBIN), law ATF's National Tracing Center performs hundreds enforcement agencies have a tool to establish of thousands of firearms traces each year for connections in gang-related shootings to other international, federal, state, and local law gang-related criminal activity through the enforcement agencies. recovery of firearms from gang members and associates. The network gives agencies the ability

24 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 ATF developed E-Trace to expedite the III. Sharing knowledge and best tracing process. E-Trace provides law practices: Training and information enforcement agencies with the ability to send trace sharing requests electronically to the National Tracing Center, receive the results, and perform limited ATF provides a three-day training course for analyses on those results securely via the Internet. federal, state, and local law enforcement officers This is a free service, and there are no software or and prosecutors in conjunction with PSN. The hardware requirements other than access to the course, developed and delivered in partnership Internet. Currently, more than 2,600 state and with the Department of Justice (Department), the local law enforcement partners use this tool. International Association of Chiefs of Police, the ATF can detect trafficking patterns related to National District Attorneys' Association, and the the sources and types of crime guns, both within National Crime Prevention Council, consists of state boundaries and across jurisdictions. Crime strategy planning sessions, training in gun tracing is the first step in combating illegal investigating and prosecuting firearms violators, firearms trafficking. Information developed as a and instruction in firearms identification and result of the trace process essentially defines the tracing. ATF has trained more than 15,000 law nature of illegal trafficking within any given enforcement officers using these programs. region. The training is directly relevant to the Comprehensive firearms tracing not only suppression of violent gangs. It focuses on provides intelligence regarding the sources of providing the knowledge, skills, and abilities crime guns recovered from gang members, it also officers need to more effectively detect firearms assists local officers and federal prosecutors to violators and to stop the diversion of firearms to identify, target, and investigate straw purchasers criminals. and the traffickers who employ them. This In addition to the national training program, provides PSN task forces with the ability to local ATF field offices provide informal training perfect gang cases and stop the future supply of across the country, partnering with U.S. illicit firearms to gang members. Attorneys' offices and local police. ATF provides Continuing analysis of the trace data allows blocks of instruction on firearms identification law enforcement to constantly reevaluate changes and training, gang trends, and related street-level in purchase patterns. Data mining by ATF's enforcement topics. Violent Crime Analysis Branch can determine specific trends and identify potential targets. The IV. Rooting out the traffickers: analysis can also include crime-gun mapping, Enforcement and industry oversight which ties the locations of crime guns recovered in one jurisdiction to the guns' specific source Gang members are often involved in firearms areas. These analyses are powerful graphic trafficking, both in furtherance of drug trafficking evidence of the interstate nature of federal activities and by providing weapons to commit firearms violations and conspiracy charges at the violent crimes. ATF has responded to the problem time of trial. with a comprehensive national firearms trafficking In addition to the analytical services provided effort. ATF defines firearms trafficking as the by the Violent Crime Analysis Branch, ATF has illegal diversion of firearms out of lawful regional crime gun centers in New York, commerce and into the hands of criminals, Washington, Chicago, and Los Angeles that prohibited persons, and unsupervised juveniles. provide support to federal, state, and local law Through its illegal firearms trafficking enforcement agencies by disseminating interdiction efforts, ATF reduces gang violence intelligence information on local gang levels by decreasing the availability of illicit concentrations and criminal trends. secondary market firearms and by recommending prosecution for those who illegally supply firearms to these organizations. U.S. Attorneys' offices aggressively pursue prosecution of these offenders, including unscrupulous licensed dealers. In order to fight violent crime, it is crucial

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 25 that both the illegal users and suppliers of firearms the aforementioned innovative technology and are prosecuted. analytical investigative resources. ATF has implemented a streamlined The initiative brings together the resources of inspection program to identify and examine the federal, state, and local law enforcement records of federal firearms licensees who pose the agencies—as well as federal, state, and local most significant threat. prosecutors—to identify, target, disrupt, arrest, • Dealers most often used by traffickers. and prosecute the "worst of the worst" criminals in specific areas. • Dealers in violation of the law. Partnerships with federal agencies, as well as • Dealers responsible for the criminal diversion state and local enforcement agencies, are essential of firearms. to the VCIT effort. The VCITs target hot spots for The program helps identify purchasers of firearms firearms-related homicides, partnering federal who illegally divert firearms to gang members or agents with local officers during the peak hours individuals who have ties to gangs, as well as when homicides with guns are committed. The licensees who disregard the firearms laws and strategy has helped lower the number of regulations and traffic weapons to criminals. The homicides in many of the targeted areas at a rate program uses investigative techniques tailored to that exceeds the national average. the identification of traffickers. The inspections Gangs are linked to the homicide problem in allow ATF to focus on specific high-risk areas of many areas, and VCIT has proven itself to be a business operations, which may lead to the unique and collaborative strategy in preventing discovery of illegal firearms diversion. gang-related violence. VCIT, through its ability to ATF's industry oversight also includes an develop effective and reliable confidential outreach and education element. In partnership informants, has also disrupted home invasion with the National Shooting Sports Foundation, crews that adversely impact communities. It is no ATF has developed the "Don't Lie for The Other surprise that through these initiatives, ATF Guy" campaign to educate the firearms industry Special Agents have recommended more than regarding schemes employed by traffickers and to 5,000 gang members and their associates for enlist the industry's aid in preventing the diversion prosecution during the past five years. of firearms to criminals. For more information on the campaign, see http://www.dontlie.org. VI. Conclusion V. Taking it to the streets: The Violent All these methods enable ATF and other law enforcement agencies to "connect the dots" Crime Impact Teams between violent crimes, and allow them to concentrate their efforts on the most serious crime The final, but by no means least important, problems in communities. Through collaborative piece of ATF's investigative strategy is the partnerships, ATF and participating agencies implementation of Violent Crime Impact Teams target the most violent gang members for (VCITs). VCITs, which are part of the PSN violations of federal firearms laws. Offenders are initiative, target specific violence-infested areas in recommended for stiff mandatory sentences, cities with high crime rates because gang especially when these weapons are linked to drug members tend to prey upon certain trafficking activities or other federal crimes of neighborhoods. The greatest immediate impact on violence. Key violent offenders are immediately making these communities safer is accomplished taken off the street, gangs are impeded, and future by focusing law enforcement efforts on limited violence is prevented.� geographical areas. In June 2004, in collaboration with the Office of the Deputy Attorney General, ATF and the Department announced the deployment of the first VCITs in fifteen cities. The VCIT initiative, which has since been expanded to other high- crime cities, is an ATF-led initiative that leverages

26 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 ABOUT THE AUTHORS �Debby Scott is currently a program and management analyst with ATF's Field �Mark Kraft is a Senior Special Agent (SSA) Management Staff. Her twenty-year career with assigned to ATF's Field Management Staff, where the Bureau has involved reviewing the he focuses on operational issues related to gangs performance of firearms enforcement programs, and ATF's firearms jurisdiction. SSA Kraft is a guiding the field strategic planning process, and twenty-one year federal law enforcement veteran formulating policies and funding initiatives and has spent much of his career investigating gun affecting ATF operational activities, both trafficking and firearms violence in Washington, domestically and internationally. D.C. He has also been a member of the � Field Division's Special Response Team, a tactical David Chipman has been a federal agent for unit that executes high-risk search warrants. more than eighteen years. He has led investigations that dismantled several significant firearms trafficking organizations that were supplying firearms to gangs. Currently, Agent Chipman is Chief of the ATF's Firearms Programs Division. In his current position, he oversees programs relating to ATF's enforcement efforts in support of the President's PSN initiative and the Department's Violent Crime Impact Team programs.a

The Special Operations Division's National and International Expertise

Joseph S. Gerbasi enforcement and investigative agencies. Hosted Trial Attorney by DEA and located in the Washington, D.C. area, Narcotic and Dangerous Drug Section SOD serves as a coordination and analytical Criminal Division center for electronic surveillance information related to national and global narcotics trafficking and money laundering. SOD is staffed by Meredith A. Mills experienced agents, analysts, Criminal Division Trial Attorney prosecutors, and support personnel. Although Narcotic and Dangerous Drug Section SOD is not oriented specifically toward Criminal Division information concerning organized street gangs, narcotics trafficking and related offenses comprise he multiagency Special Operations a significant portion of the criminal activity Division (SOD) can enhance the quality conducted by those criminal groups. In this Tof difficult and complex gang context, the coordination and analysis functions of prosecutions. The division was established in SOD can be highly useful to agents and 1992 as a partnership between the Criminal prosecutors using sophisticated law enforcement Division of the Department of Justice tactics to attack organized criminal street gangs. (Department) and the Drug Enforcement Administration (DEA). The SOD has grown to The agents and prosecutors at SOD primarily include the Federal Bureau of Investigation (FBI), focus on coordinating multidistrict narcotics Immigration and Customs Enforcement (ICE), the investigations and prosecutions that frequently Internal Revenue Service (IRS), the U.S. Marshals have international reach. Components of these Service (USMS), and several other law cases are often worked in the field by several

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 27 different federal agencies, with frequent Receiving additional information and involvement of state and local law enforcement as instruction from SOD about the true scope of the well. In these large and many-faceted domestic activity helps the federal prosecutor in investigations, SOD serves as the center point of debriefing and deploying confidential sources, the operation. The division is tasked to balance, questioning cooperating defendants and other coordinate, and manage investigative actions that government witnesses, and cross-examining are planned and executed by multiple special defense witnesses in pretrial hearings and at trial. agents and prosecutors in the field. Coordinating This additional information can also help agents the steps of special agents and prosecutors who and prosecutors plan more effective and timely are targeting the cell of the network operating in enforcement actions, including the use of search their respective districts enables SOD to ensure warrants and electronic surveillance. that one district does not take actions that will Moreover, SOD coordination can assist the undermine operations in the other districts. This prosecutor in identifying any international reach approach often results in coordinated multidistrict of the gang's criminal activities. Much of the gang operations that maximize the disruptive impact activity that occurs in the United States is limited law enforcement has on the entire targeted to domestic criminal activity, which has no nexus criminal organization, from command-and-control to gang members or organizations in other elements to mid-level managers to street-level countries. Limited anecdotal reporting suggests, criminals. however, that gang members or gang This approach can be equally effective in the organizations that operate within the United States prosecution of multidistrict gang cases where may be engaging in transnational criminal portions of the gang's criminal activities are activity, meaning their illegal activity or carried out by different cells in separate federal communication extends beyond national judicial districts. In a typical narcotics-distribution boundaries. Gang members may be involved in a conspiracy, it is frequently the case that law variety of crimes with an international nexus, such enforcement authorities in District A will plan to as those listed below. take investigative steps against their gang targets • Smuggling drugs, arms, or aliens over the without consultation or coordination with Districts U.S. border from abroad. B, C, D, and E. The efforts of other law enforcement authorities against their related gang • Smuggling illicitly-gained U.S. currency to targets in these secondary districts (Districts B gang members in foreign countries. through E) might be compromised or undermined • Communicating with gang members in other by the actions planned in District A. Agents and countries for illegal purposes, such as to prosecutors should coordinate cases through SOD receive directives from foreign organizational in order to avoid conflicts and coordinate with leaders to conduct criminal activity within the related active cases in other districts. This will United States. ensure that the collective efforts of agents and prosecutors in all districts have the maximum Learning more about the transnational aspects impact of disrupting and dismantling the targeted of a targeted gang's criminal activities also helps criminal gang. the prosecutor establish critical partnerships with foreign law enforcement and prosecution In addition, coordinating with SOD can assist counterparts. This contact can facilitate the the prosecutor in understanding the true gathering of useful gang-related information or multidistrict nature of the gang and its intricate intelligence. Not only do these partnerships criminal activities. The gang may be involved in benefit the U.S. prosecutors' efforts to many aspects of crime, included, but not limited successfully disrupt criminal gang activity to the following. domestically, they aid foreign law enforcement • Narcotics and firearms trafficking. partners in dismantling these violent criminal enterprises on an international level. Given that • Money laundering. many deported gang members return to the • Financial structuring. United States only to commit additional crimes, disruption and dismantlement of gangs abroad can • Tax evasion. have a positive impact on the Department's anti- • Other offense conduct. gang efforts. The Criminal Division's Office of

28 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 International Affairs (OIA) can advise and assist ABOUT THE AUTHORS prosecutors in securing the return of fugitives from abroad for prosecution in the United States. �Joseph S. Gerbasi joined the Criminal Division OIA can also help the AUSA obtain evidence, in 1997 as a Trial Attorney and is currently witnesses, and other assistance needed for the assigned to the Narcotic and Dangerous Drug successful prevention, investigation, and Section, Special Operations Division. Prior to his prosecution of crimes in the United States. OIA federal government service, he served as a Attorneys can be reached at (202) 514-0000. prosecutor with the Office of the Attorney SOD can give agents and prosecutors a deeper General for the District of Columbia and in understanding of a targeted gang's criminal deeds private practice. and schemes by illuminating the big picture that �Meredith A. Mills is a Trial Attorney in the shows the multidistrict and international aspects Narcotic and Dangerous Drug Section in the of the gang's activities. Moreover, coordinating through SOD will most assuredly highlight the Department's Criminal Division. She specializes in procedural, substantive, and policy matters, need for interdistrict and international cooperation in the battle against organized criminal gangs.� relating to international counternarcotics investigations, extraditions, prosecutions, and sentencing.a

Cyber-Technology in Gang Cases

Stephen K. Brannon The Computer Crime and Intellectual Cybercrime Analyst, Cybercrime Lab Property Section (CCIPS) provides guidance on Computer Crime and Intellectual Property the legal issues concerning computers and on-line Section investigations. The section's new Cybercrime Lab Criminal Division can provide further technical and practical guidance. Contact the section at (202) 514-1026, or at www.cybercrime.gov. I. Introduction II. Technology used by gangs angs use technology to coordinate activities, recruit new members, and Portable electronic devices (PEDs) are one Gcommit crimes. New technology common technology gangs use. Distinctions enables them to work faster and more efficiently, among cell phones, personal digital assistants, and which poses novel challenges for law laptops have blurred. Many of these devices now enforcement. But as gangs use technology more connect to the Internet, in addition to their simpler and in new ways, it also provides law enforcement functions. An investigative team can no longer with new sources of leads and evidence. Every treat a cell phone as a portable version of a regular cell phone text message, Web site post, or e-mail phone and expect to obtain all the important creates an electronic trail that can be invaluable to evidence from call records or a wiretap. This fact prosecutors. makes the investigation more complex, but it also This article examines some of the ways gangs increases the types of evidence available to law use technology and the evidence they create in the enforcement. For example, many PEDs store process. It also covers what to look for and where information on the device, so a forensic analysis to find it. Finally, the article touches on some can recover additional valuable information. The promising ways law enforcement can use forensic analysis must be conducted as soon as technology in their gang reduction efforts. possible because some devices lose all information if the batteries die.

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 29 In the same way that PEDs are varied in their provide a helpful context for detailed discussions features and designs, so too are the carriers who with cell service providers or other agencies of the provide communications to and from these government. devices. Service providers differ from one another Although capabilities to provide location in the architectures they use and the records they information vary among providers, most providers keep. Consequently, the information they are able will have certain minimum information. Recently, to retrieve and supply to law enforcement varies cell phone companies have begun enhancing their widely. In an investigation, the safest course of ability to locate a user's cell phone in order to action is to question the company about its meet Enhanced 911 (E911) requirements. E911 capabilities, considering the opportunities the rules require providers to give dispatchers on available information may create. wireless 911 calls additional location information. Despite these difficulties, there are still Companies are also increasing their ability to common elements in PED services, and an locate a user's phone to sell location-based understanding of these technologies and processes services, such as driving directions. is useful. There are two basic approaches to cell phone A. Push-to-talk or walkie-talkie services location. • GPS-based. A GPS-equipped phone calculates In addition to ordinary telephone calls, many its latitude and longitude and then cell phones can be used to make push-to-talk communicates that location to the network. (PTT) or walkie-talkie calls. This service allows This enables a phone to tell the network its immediate communication—two gang members location when the user initiates a location- can talk at the push of a button without dialing a based activity. But, since the activity is telephone number. Some services also allow PTT initiated on the phone, a company may or may communication to a group of other phones in a not be able to poll a particular phone for its type of instant conference call. These can be location. attractive attributes for gang members. • Network-based. The network examines Gangs may favor PTT services for another information, such as which towers "see" a reason. According to the National Gang Threat particular phone and the strength of the signal Assessment, gang members believe that PTT each tower sees. The network can calculate a communications are difficult or impossible to phone's general location from this trace. See 2005 Gang Threat Assessment (NAGIA information. Typically, the only requirement 2005), 3 available at http://www.nagia.org/ is for the phone to be on. Thus, a company is PDFs/2005_national_gang_threat_assessment. more likely to be able to initiate this search pdf. for a phone without user action. In any event, if a phone is turned off or otherwise disabled, Generally, records for PTT services relate to it provides no location information. billing, both in terms of what information is available and how long it is retained. They are Location information also generally includes a often less extensive than ordinary telephone call "confidence measure," or an indication of how records. Some services allow a person to manage precise the company believes the location to be. PTT contacts both on a phone and on a Web site. To put phone location precision in perspective, it If contacts are managed on a Web site, they may is useful for seeing the direction of a target's travel be more readily available to the service provider. along an interstate highway, but it will not follow a target between rooms in a building. B. Wireless location information C. SMS text messaging, instant messaging, and e-mail Since many gang members carry cell phones, obvious questions are: "To what extent does a cell PEDs send and receive text communications phone report physical location?" and, "To what with several technologies. For years, many cell extent can a cell phone report physical location?" phones have allowed a form of text messaging The legal and technological issues involved are between phones called Short Message System substantial. Nevertheless, a few guideposts will (SMS). SMS messages usually do not traverse the

30 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 Internet. Since the billing structure for text "somegang.com." The registration process usually messages involves little or no information beyond involves providing a valid payment which can the number of messages transmitted, carriers yield important evidence. The process also typically keep few records involving the details of involves providing organizational and contact their customers' text messaging. information to the registrar. Registrars report the information of their customers to the "who is" It is important to remember that database. This information is self-reported and communications are sometimes routed via the often unverified, so it can be, and often is, false. Internet, or they begin or end on an Internet- Nevertheless, it sometimes provides valuable connected computer. In those cases, evidence is leads. often available from traditional service providers. As cell phones become more like fully functional There are free tools for obtaining this computers, they are expanding to offer access to registration information that require little applications such as instant messaging and e-mail. technical knowledge. The tools perform a "who If the cellular network merely provides is" lookup and show the information entered for transmission to the Internet and the many the domain registration. The Web site applications available on it, these types of www.whois.sc also offers a history of changes for communication will pass through the hands of "who is" information (registration and a fee are more than one company. For instance, if a cell required for extensive lookups). Historical records phone user sends an e-mail, the cell phone can be useful because even if someone is careful company may pass the communication to a third to give no useful information now, he or she party e-mail service. The third-party e-mail might have been less careful in the past. AUSAs provider will have more control over the who are interested in learning more can contact a communications and records than the cell phone CCIPS duty attorney. company. Also, there may be a traditional Internet The data can still be useful even if it is service provider at the other end of the fictional. For example, people listing mostly communication (such as AOL Instant Messenger bogus information often use an accurate e-mail or Hotmail). These companies generally have their address in case someone has legitimate technical own record retention policies and evidence questions. An accurate e-mail address is collection capabilities. significant in the context of an on-line investigation. If the e-mail provider is in the III. Traditional technology United States, a subpoena can often yield records with significant evidentiary value. Even false A. Web sites information can have value. • An alias or nickname can show a connection Gang investigations can also involve the use to an individual. of traditional computers and the Internet. Gang Web sites are used for recruitment and • The same set of (false) contact information communication about gangs' activities. See 2005 can be used for several Web sites, indicating a Gang Threat Assessment (NAGIA 2005), 4, connection between them. available at http://www.nagia.org/ Often the servers hosting a Web site possess PDFs/2005_national_gang_threat_assessment. valuable records of a gang's activity. A gang pdf. Many gang Web sites also have forums for probably gets this service from a Web hosting group communication, such as bulletin boards or company and these companies can provide chat rooms. Id. valuable information. Many people believe that the Internet • The credit card number used to pay for provides a layer of anonymity for activity, and hosting services. some criminal enterprises rely on that perceived obscurity. However, that anonymity can often be • Statistics and records indicating who pierced with on-line detective work, legal process, administered the site, visited it, or made or a search. particular posts. In order to set up a Web site, the owner of the Any of this information can be a link to the site must reserve a domain name, for example, identity of targets.

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 31 CCIPS has extensive experience in on-line checks or fake identification, or to communicate a investigations and is happy to provide guidance or threat. help with all aspects of these processes. If a gang member's personal computer is seized, qualified personnel should recover and B. Personal web sites analyze data to avoid the risk of obtaining evidence in contravention of the 4th amendment. There are many social networking and It is also essential that prosecutors and agents give blogging sites, such as MySpace.com, computer forensic analysts sufficient information Xanga.com, FaceBook.com, Friendster.com, and about the computer's owner, the owner's activities, LiveJournal.com. These sites have tens of millions and what evidence is sought. Prosecutors and of users and a disproportionate share of them are agents also need to understand how the evidence young adults—a demographic overlapping that of is found and its context on the computer. gang members. As use of these sites continues to increase, use by gang members can be expected to D. E-mail/Web browser increase as well. A linked community can sometimes span across several such sites. E-mail is one common form of electronic These social networking sites are built on the communication. E-mail can be accessed through concept of allowing people to share information an e-mail program or a Web-based interface. An about themselves with the world. If any subject in investigation usually starts by finding e-mail an investigation uses social networking sites, all addresses that a target and his or her associates their personal information has immense use, which is useful information itself. The next investigative potential. Further, the step is usually to compel e-mail service providers communication and networking aspects of these to produce further transaction or content sites can be even more valuable. Often, a user's information related to the subject's page can be linked to friends. In addition to a communications. "friends" section, there is often a list of friends' Evidence is often easy to find if a target uses comments—a chronological record of publicly an e-mail program like Outlook, because an viewable messages that friends have left this user. analyst can find e-mail account information from Such public information is obtainable with the the program's settings. At this point, the service click of the mouse. Legal process can be used to provider can be compelled to produce the relevant obtain additional private communications. evidence that is justified and required. Users also Gang members often frequent other types of often store their communications locally on a Web sites to show allegiances, confrontations, and computer; for example, Outlook files are named even solicit prostitution. See 2005 Gang Threat with the extension ".pst." Other common mail Assessment (NAGIA 2005), 4available at http: files to search for are: .dbx (Outlook Express), //www.nagia.org/PDFs/2005_national_gang_ .snm (Netscape Messenger), and .mbx (Eudora threat_assessment.pdf. Music production Mail). It is sometimes easiest to open and read a company Web sites are particularly popular suspect's e-mail using the same program he or she among gang members, as are on-line video games. used to create it. Forensic tools also often allow To some extent, gang communication on these for easier review of mail files. It is important that sites may be incidental, but members are also the review be conducted in a forensic increasingly using them as a medium for gang- environment, regardless of the tool used, so related communications. communications such as a "read-receipt" are not inadvertently sent to a target revealing that e-mail C. Gang member's computer was viewed. A person usually leaves significant tracks on a A gang member's personal computer can computer when using a Web-based e-mail provide a wealth of information. Evidence of account. Some of this information can be easily communications is the most valuable and most viewed on a running computer or a running copy likely to be found. Evidence of a crime, such as of a seized computer. An average Web browser, business records, may be found on a personal such as Internet Explorer running with default computer. A personal computer can also be used settings, keeps excellent records to make the user to commit a crime, for example, to produce bad experience faster and customizable. These records

32 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 are also extremely useful for an investigation. they often contain personal information, such as Easily viewable records include the list of URLs plans for the evening or links to other sources of typed into the address bar, a more comprehensive information about the user, such as a user's page history of pages visited, browser cache, cookies, on a social networking site. All this data can help and stored passwords. The browser cache is a investigators piece together a user's real-world memory of visited pages that is saved for quick identity, associates, and activities. reloading. There are several tools available for Most of the major IM programs allow users to examining browser cache, like the free "Offline log their chats, which saves them directly on the Cache Explorer." A cookie is a small file sent user's computer. In fact, some programs log chats from a visited Web site to the user's computer for by default. If an IM user's computer is seized, an identification. A cookie indicates that a computer examiner should determine if logging was enabled visited a particular Web site and may contain and if any chat logs were saved to the computer's additional information. hard drive. A little more effort can uncover other places a The management and examination of chat user's Internet activity is recorded. Windows logs logs or e-mails recovered from a user's computer, every Web page visited (using Internet Explorer) or through some other investigative process, in files called index.dat. The information in these present some special problems. First, chat logs files can indicate e-mail activity and Web activity and e-mail often contain overwhelming amounts in general. Several forensic tools allow an of information. The program used to generate the investigator to review the history in an index.dat communications is often the best tool for file, as well as other browser files, such as cached managing and searching them. If this isn't sites visited. effective, the Cybercrime Lab has experience designing and programming solutions to manage E. Instant messaging and search logs. The analysts in the lab are always available for consultation. Another major Instant messaging (IM) was created for faster challenge in recovering evidence from logs is that and less formal communication than e-mail. proper spelling and grammar are rarely used. Nearly half of people age eighteen to twenty- Keyword searches are rarely effective because of seven use IM even more than e-mail. Eulynn Shiu individual or random spelling variations and even & Amanda Lenhart, Pew Internet & American the substitution of numbers for letters. See, e.g., Life Project: How Americans Use Instant English-to-12-Year-Old-AOLer Translator, Messaging iii (2004), available at http://www. http://ssshotaru.homestead.com/files/aolertranslat pewinternet.org/pdfs/PIP_Instantmessage_Report. or.html (last visited Mar. 10, 2005). pdf. Gang members will likely increase their use of IM, just as they have increased their use of F. Business/crime records personal Web pages. The nature and amount of evidence created by instant messaging can vary In addition to being a means of widely, as do the technical and legal processes communication, personal computers also store involved. In any event, there are still common records of enterprises or businesses and produce elements across services that are useful to know. tools of crime. This type of use is less common Please consult with CCIPS if questions arise. among gangs, but it does occur. According to the IM use can yield information about a target's National Gang Threat Assessment, "[r]ecent associates, since most IM services offer the ability information indicates that gangs are using to store a list of frequent contacts. This is a computers to produce fraudulent checks and window into an otherwise closed network of counterfeit currency and to develop and maintain individuals. Each IM user, including the users on databases of gang and drug activity [and] use a person's contacts list, is represented by a screen laptops, personal digital assistants, and personal name. This identifier is often the same as user computers to produce materials and maintain names and e-mail addresses elsewhere. A person's records of their own criminal enterprises." See profile is often available to others. A person's on­ 2005 Gang Threat Assessment (NAGIA 2005),4 , line status (presence information) is also available available at http://www.nagia.org/ to others who add a particular user to a contacts PDFs/2005_national_gang_threat_assessment. list. While these sources may sound unhelpful, pdf. Gangs are more involved in drug dealing than

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 33 computer-aided check forgery. But if computers These information-sharing programs have are used to commit or facilitate crimes, it usually great potential, but face significant obstacles. creates excellent opportunities to recover Many offices involved in gang investigations have evidence. stand-alone databases or programs that cannot talk to the national networks, and it is not always IV. Law enforcement resources feasible to upgrade or replace them. The problem is magnified when new information becomes National networks and databases enable a available. If an office uses both a stand-alone coordinated law enforcement response to gangs. system and a national network, the office must Coordination is valuable to any broad law determine which system gets the new data first, enforcement initiative, but it is particularly and often the decision is the stand-alone system. valuable with gang activity since gangs tend to Many offices can and do contribute to the national consist of repeat offenders and gangs can be systems, and though the systems are not complete, widely dispersed networks. The Regional they are a valuable resource. Information Sharing Systems network (RISSNET) As computers and the Internet take a more is a national network of six regional systems central role in everyone's life, it becomes even providing information-sharing in areas like gang more essential for prosecutors to be familiar with activity, terrorism, and drug trafficking. RISSNET them. A case will progress more quickly if also provides analysis and other assistance with knowledgeable investigators and prosecutors are gang investigations. It was originally a state and involved in the initial investigation. The local effort, but now includes national law investigative team must also give the technical enforcement. See the RISSNET Web site at analysts meaningful guidance so they can work www.rissinfo.com. more efficiently. The FBI's Violent Gang and Terrorist The attorneys and technologists at CCIPS are Organization File (VGTOF) is another national ready and willing to help AUSAs with technical system. VGTOF is a database that includes issues in the cases. Additionally, CCIPS information on people associated with gang and encourages AUSAs to attend the annual "Basic terrorist activity. It is a component of the National Cybercrime and Computer-Based Evidence" Crime Information Center in the FBI's Criminal course at the National Advocacy Center.� Justice Information Services Division. VGTOF is used by national, state, and local law enforcement. ABOUT THE AUTHOR

�Stephen K. Brannon is a Cybercrime Analyst in the Computer Crime and Intellectual Property Section's Cybercrime Lab. He has worked on computer crime at the Criminal Division in the Department of Justice and information security at the FBI.a

34 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 Victim and Witness Challenges in Gang Prosecutions

Heather Cartwright program and return to the gang. Three weeks later Chief, Victim Witness Assistance Unit her corpse was discovered adjacent to the District of Columbia Shenandoah River in Virginia. Her throat was severed and she had been stabbed in the chest Ronald L. Walutes, Jr. thirteen times. Assistant United States Attorney Eastern District of Virginia II. Who are the witnesses in gang I. Introduction prosecutions?

ome of the biggest challenges in A. Cooperators dismantling organized criminal activity Sinvolve finding, working with, and A frequent strategy in gang cases is the use of securing the victims of, and witnesses to, crimes. cooperators from inside the gang to build the case. This was the reality in the past when we were The term "cooperators" refers to members of the battling the Mafia, and it continues to be true same gang who have pleaded guilty and have today as we take on organized gangs. The Federal agreed to cooperate with the government. These Witness Security Program (WSP) came into members are often among the most existence specifically to secure witnesses knowledgeable witnesses available to the testifying against the Mafia, and it has been an government. Cooperators can explain the rules enormously successful tool. Now, with the and structure of the gang and the terminology prominence of violent street gangs, that tool and used by the members. Working with cooperators others, such as the Emergency Witness Assistance and others involved in the criminal subculture Program (EWAP), are useful in meeting the presents a host of issues and challenges. One of challenges that confront prosecutors. This article the most significant challenges is to keep will identify some of the witness security and cooperators out of harm's way, and sometimes the other victim/witness challenges that prosecutors, challenge is to keep him or her alive. In addition, law enforcement investigators, and United States prosecutors must deal with the cooperator's Attorneys' staff have faced in recent successful criminal history and motivation, given his or her prosecutions against violent gangs. It will also sentencing exposure. Another challenge is that provide some general guidance and advice on these witnesses are often illegal immigrants. using the tools available to address those issues. The Brenda Paz murder would not have been Some of the most useful techniques and tools solved without the use of this class of witness. remain quite sensitive, so feel free to contact the Witnesses are reluctant to cooperate, even under authors and ask for more detailed information and the best of circumstances, against the more violent guidance. street gangs. Few individuals come forward A recent criminal prosecution of four voluntarily with information when an members of the Mara Salvatrucha (MS-13) gang investigation begins with the violent murder of a in the Eastern District of Virginia illustrates many federal witness. Frequently, law enforcement's of these challenges and suggests some possible first step is to make an aggressive effort to enforce solutions. Brenda Paz was a member of MS-13 the narcotics, firearms, and immigration laws and was sixteen years old when she first began against gang members and attempt to obtain cooperating with law enforcement. Brenda Paz intelligence from those arrested. If faced with was emancipated by the state and was placed into deportation, many otherwise reluctant cooperators a safe house by law enforcement. She was later come forward. The prosecutor must then address transferred to the WSP. She became pregnant and the approaching deportation of what may be the unhappy with the isolation and restrictions of the only witnesses. It is essential that good WSP. Eventually, she elected to leave the communication be maintained between those

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 35 working with the witnesses and the U.S. Under these circumstances, convincing them to Immigration and Customs Enforcement (ICE) step to the sideline is half the battle. officials. D. Community members B. Girlfriends Community members who unwittingly Almost all of these violent street gangs are become involved, receive information, or are composed of young men. Very few young women victimized may also be witnesses. "Clean" are permitted to join these gangs. Girlfriends of witnesses often have very limited information. If male gang members, however, are sources of they can detail tattoos, weapons, or number of information about gang activities. Apparently involved participants this information anchors the recognizing this possibility, MS-13 does not case as it goes forward. In the Brenda Paz case, permit girlfriends to be present during meetings there were no such witnesses, other than hotel and does not discuss gang business in their clerks who could corroborate dates various guests presence. This class of witness generally has some registered. The "guests" were often gang limited information, which is of varying utility. members' girlfriends who provided hotel clerks Given their lack of culpability, they most often with driver's licenses as identification when can be used to corroborate the more criminally- registering for a room on behalf of the gang involved cooperating witness. The girlfriends are member. (The girlfriends were used to register for increasingly middle school dropouts, frequently the room because they had a clean driving record on juvenile probation for petty offenses (although and no outstanding warrants for their arrest.) this is a plus because it greatly assists in tracking the witness and ensures she is watched), and III. Types of challenges sometimes have multiple children. They are extremely difficult to place into any witness A. Fear security program, particularly if they lack sole custody of their children or the children's fathers The number one concern of most government have, or want visitation rights (and the fathers are witnesses is fear. Victims and witnesses, in many often gang members who cannot be told of the types of cases, are naturally concerned about their mother's cooperation). safety while they participate in the criminal justice Often these witness groups are interconnected. process. In prosecutions against violent gangs, For example, one MS-13 member was told that however, the intimidation factor is multiplied his girlfriend would be the next murder victim if many times, and is a serious impediment to she cooperated with authorities. He sent her home investigating gang-related crime and bringing to her mother, who did not live in the area, for those criminal cases to trial. Gangs can hold entire safety, and he later joined them. When he was neighborhoods and/or communities in a grip of detained later at the local immigration office terror, which intimidates anyone from coming where he went to obtain a replacement green card forward to provide information. (because of an intervening criminal conviction), Safety of victims and witnesses is a primary he began cooperating with law enforcement to concern to law enforcement and prosecutors alike. ensure his girlfriend's safety. His girlfriend also The first right guaranteed victims under the came forward and told law enforcement what she recently-enacted Crime Victims' Rights Act knew. Both witnesses were very helpful and (CVRA), Pub. L. No. 108-405, 118 Stat. 2260 directed the investigation in the early stages. (2004), codified at 18 U.S.C. § 3771, is the right "to be reasonably protected from the accused." 18 C. Rival gang members U.S.C. § 3771(a)(1). As recounted by the CVRA's Senate sponsor in a subsequent law review article: Victims who belong to other gangs are The placement of this right as the first right is sometimes good sources of information. This quite deliberate. Senator Feinstein thought the witness class is often a challenge because these right so important that she directed during the witnesses do not want to use law enforcement to drafting that it be moved from paragraph 2 of address their ongoing disputes with a rival gang, the list of rights in the [previous victims' bill preferring to deal with these problems themselves. of rights] to paragraph 1 of the new law. This

36 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 placement reinforces the principle that enforcement agencies are working together government's first and foremost obligation to because they have never been exposed to the its citizens is to protect them -- especially concerted effort these investigations demand. In those who already have been victims of a appropriate cases, prosecutors should consider crime. seeking permission from the court to delay identifying witnesses whose safety is threatened. Jon Kyl, Steven J. Twist, & Stephen Higgins, On In 1994, Congress amended 18 U.S.C. § 3432 to the Wings of their Angels: The Scott Campbell, allow a court to make findings that a witness need Stephanie Roper, Wendy Preston, Louarna Gillis, not be identified where the life or safety of any and Nila Lynn Crime Victims' Rights Act, 9 LEWIS person may be jeopardized (capital prosecutions & CLARK L. REV. 581, 595 (Fall 2005). Of course, otherwise require the disclosure of a witness list safety cannot always be guaranteed. The Attorney and place of abode in advance of trial). General Guidelines for Victim and Witness Assistance advise that "[w]here necessary, Prosecutors must address witness security prosecutors should inform the court of the threat concerns at the earliest possible point in the level, risk, and resources available to create a investigation. Relocation measures are much more reasonable plan to promote the safety of victims effective if they are already in place by the time and witnesses." AG Guidelines Art. IV.B.2.a. The the witness' cooperation is made public. Guidelines further encourage the use of pretrial Applications for the WSP can take several months detention, protective orders, the EWAP, the WSP, to process, and in the meantime, measures must be and state and local resources to promote the safety taken to secure the witness. In addition, some of victims and witnesses. programs limit their applicability to before and shortly after the trial. EWAP, for example, may Intimidation can take many forms. Overt not be available if the application is submitted threats include assaults and shootings, verbal more than sixty days after the sentencing of the threats to kill, and murder-for-hire (placing a "hit" defendant(s). If the prosecutor waits to address on a witness). The investigation cannot move security issues until a cooperator is released from forward until this type of threat is forcefully prison, permission to use EWAP is difficult to addressed. The targets must be detained, either obtain. through a criminal or immigration charge. The staff of the detention facilities must be informed One of the more difficult decisions in an of the threat presented by those they house. The investigation involves who to approach, without communications with the detainees must be inadvertently disclosing the identity of a witness. monitored to ensure threats are not coming from Many of the threat problems can be most inside the jails. An aggressive response by the effectively addressed by carefully plotting the government serves notice that witness investigation to eliminate the gang's ability to intimidation will be prosecuted immediately and deduce who is cooperating. The only problems vigorously. This response also lets witnesses generated will be incorrect assumptions made by know that they are not alone. the gang. It is essential that all members of the prosecution team are aware of all assignments, to Threats can also be more subtle. Thus, avoid errors and mistakes when multiple law gestures and vague statements can be understood enforcement organizations are involved. This is as explicit threats by the witness. EWAP allows difficult and challenging to the team effort when services to be provided where there is a perceived investigators are not accustomed to working with threat by the witness—an explicit threat is not other law enforcement organizations. On the other required. hand, in the field of gang enforcement, language During the secretive grand jury investigation, skills serve to narrow the group of investigators the government has an opportunity to identify and who speak with witnesses, which also provides address potential concerns before the criminal opportunities to develop the essential teamwork prosecution becomes public knowledge. needed. Defendants detained on unrelated narcotics, weapons, and immigration charges likely do not realize the scope of the government's investigation and the depth of the government's case. Similarly, they probably do not realize how many law

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 37 B. Security for incarcerated cooperators witnesses are tempted to withdraw from the cooperation and return to the gang. A network of Steps to secure cooperators should be taken committed resources is invaluable when this while he or she is incarcerated. It is easier to occurs. Many investigators do not have the time to secure cooperators who are detained or serving be available to the witnesses twenty-four hours a time on their own charges. The Federal Bureau of day, seven days a week. Despite every effort, Prisons (BOP) has done an outstanding job in this witnesses often return to the culture with which he area and, because of the success, most prisoners or she is familiar and comfortable. request and accept the protection afforded by the The reality is that, with this type of case, the WSP within BOP. This is an excellent program government is usually better served when its because the witness stays secure and is available witnesses, where appropriate, are incarcerated. In for trial. As an added benefit, the jury hears that the District of Columbia, a gang member witness the witness is serving his sentence, albeit within a left the WSP without informing anyone. Once he secure program inside the prison system. In was located and arrested on a material witness addition, if family members are threatened as a warrant, the prosecutor asked the court to keep result of the witness' cooperation, they can be him in jail pending the trial because it was the relocated through the WSP while the witness is safest course, and offered the best chance of incarcerated, or given funds (investigative agency ensuring his availability at trial. Although the funds or EWAP funds) to relocate on their own. witness was very angry with the prosecutor for The incarcerated witnesses can be provided with recommending his detention, several months later WSP services upon release, if necessary, or with when he testified, he had overcome his anger and funds to assist with parole/probation issues and was a strong witness for the government. housing. In addition to the safety risks, there are also The more challenging problem is securing witness availability issues. Witnesses who are on cooperators who reject, or do not qualify for, the the street are likely to flee once the trial begins BOP program, or who are being held on material and some will not be found. One lesson the witness warrants. The established means of AUSAs in the Eastern District of Virginia have securing their safety involve the use of separation learned is that multiple sources of testimony are orders, special, cooperator-only floors in local absolutely essential in building a gang case. jails, or separating prisoners by moving them to different regional facilities. The availability of D. Lack of judgment about the witness' these options varies depending upon how many regional jails exist in a district. The U.S. Marshals own safety Service maintains contracts with local jails for this purpose. It is never too early to alert the Marshals For the most part, a witness' safety is in his or to the potential challenges faced in a gang-related her own hands. Arrangements for relocation, case. changes of identity, and other methods of concealing the witness' whereabouts can be made, C. Immersion in the criminal subculture but if the witness does not follow reasonable precautions, none of those methods will provide security. A recurring issue with victims and Gang members and their girlfriends often witnesses in gang cases is their failure to follow view the gang as a family and demonstrate greater reasonable safety precautions, such as avoiding loyalty to the gang than to their own family. The known danger areas or not revealing their gang lifestyle is addictive. Those caught up in it location. USAO staff must remind witnesses of crave the sense of belonging and the risk of these basic precautions. The WSP will terminate a violence. They often speak gang jargon better than witness from the WSP if the witness fails to either English or their native language (assuming follow the safety rules. In those instances, the it is other than English). USAO must come up with another alternative for A solid, trusting relationship between the the witness. Sometimes a material witness warrant witnesses and law enforcement is essential to keep is the only alternative available. The witness will the witnesses safe and cooperative prior to trial. not like it, but it addresses the safety concerns. Do Law enforcement and prosecutors must recognize, not be reluctant to use the material witness however, that there are going to be times when the warrant in these cases. The appointed lawyer can

38 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 become a buffer with this most difficult group of experiencing difficulties, so efforts can be made to witnesses. avert a major crisis. It may be apparent from the outset that a The challenges are often multiplied when a witness will not be capable of following rules, witness has children. As previously mentioned, particularly the rules regarding contact with the presence of children can complicate the persons who may be known to the perpetrators. In application process for the WSP. Child custody such situations, a social services program with and visitation must be worked out so that the intensive counseling may be a more practical witness can confidentially take the children into alternative and more likely to be successful. the WSP. If the witness receives EWAP services, Social services programs also have rules, USAO staff should be aware of additional needs, however, and the witness may not be able to take such as helping the children change schools and advantage of the benefits of such programs, even keep up with schoolwork, and support the witness with intensive counseling and support. If the in maintaining an acceptable level of parenting witness seems incapable or unwilling to take basic skills. USAO victim witness staff may be able to protection steps, the government can ask for a assist with these tasks, or provide referrals to pretrial deposition (see Fed. R. Crim. P 15.) There social services agencies that can support the are numerous disadvantages in doing this, but it witness and children. A witness may realize and may keep the witness safe. The motive to harm or agree that the custody of his or her children kill the witness in order to prevent his or her should be left with the current custodian for the testimony may be reduced by the taking of the short term. This will give the witness a chance to deposition. get settled and present a better picture to the children's custodian and to the court of E. Life skills challenges jurisdiction over the children. The presence of children often provides the witness with the Many of the witnesses have a host of life motivation to follow through with the plans to skills issues. They may be facing issues such as better his or her life and provide a home in a safer poverty, unemployment, and credit problems, environment. which can make it difficult to be self-supporting. Although many government programs, including F. Immigration status EWAP, provide emergency funding for short-term needs, witnesses need to have long-term plans Do not ignore the immigration status of a concerning their safety and livelihood through the witness. If appropriate, refer the witness to an trial and beyond. Many witnesses will need help immigration attorney, who can give advice about in developing and implementing these plans. a visa. There are several types of visas available to School and/or job training are often acceptable a victim or witness. goals, but extremely challenging to complete. Witnesses may lack experience in budgeting • S Visas are available for certain witnesses. money and recklessly spend the funds that are • T Visas are for victims of severe forms of given to them. USAO staff need to be firm with trafficking in persons. witnesses and set appropriate boundaries so that their poor judgment is not merely enabled. • U Visas are available for victims of crime. Witnesses may be overwhelmed at the Significant Public Benefit Paroles (which thought of relocating and living without the allow an alien, per request of a law enforcement financial and emotional support of the gang. The agency, to enter the United States to take part in USAO staff can help witnesses by fully legal proceedings when there is a benefit to the explaining what is being done and why. Always government) can also be arranged in appropriate be candid with the witnesses about the challenges circumstances. It is wise to obtain the they may face and try to prepare them for what participation of ICE agents in the investigation to they can expect. Referrals to social services identify significant issues and to ensure the agencies may be appropriate to provide witnesses witness is not deported before trial. An with support for changes in lifestyle. Encourage incarcerated witness may not consider the witnesses to contact the USAO if they are immigration problems until the release date nears. At this point, he or she may find that a detainer has been placed by ICE.

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 39 In a recent case in the District of Columbia, a address a wide range of problems serves to cooperator who was being processed for witness demonstrate the government's commitment to security measures was mistakenly deported back resolving the gang violence problem. The to his home country before the witness security attention given to juvenile witnesses may give measures could be put into place. In order for the investigators leads on other potential witnesses case to proceed, much time, effort, and money who might be able to assist the prosecution with were expended to bring the cooperator back to the gang-related cases. United States under a Significant Public Benefit Juvenile witnesses may not be able to enter Parole. Prosecutors and investigators must be any of the witness security programs that the mindful of the transnational reach of many gangs. government has available. Those under eighteen If a gang has ties to the country to which a witness years of age cannot receive EWAP services unless is deported, he or she may remain in danger when accompanied by a guardian. The WSP also has returned to that country. limitations on the age of applicants. One solution—if your juvenile witness is close to the G. Juvenile witnesses age of majority—is to seek a declaration of emancipation from a local court. Once An increasing challenge in prosecuting gangs emancipated, the juvenile may be able to access is the fact that many of their members are the WSP and the EWAP. If the guardian is not juveniles. Federal prosecutors must first transfer cooperative in providing relocation or other juvenile targets to adult status, something many services to the juvenile, it may be appropriate to prosecutors have never done. Similarly, juvenile involve a child protective services agency. witnesses have often severed ties to their families and present a plethora of challenges to H. Physical and mental health issues investigators. MS-13 has members as young as thirteen and fourteen years old, and the girls that Physical and mental health problems can be are involved with the male gang members are addressed at a cooperator's sentencing or with the frequently minors. cooperator's probation officer. A witness with A juvenile gang member, turned witness, significant substance abuse problems should be presents enormous challenges to law enforcement under supervision before entering into a witness personnel. The upside, however, is that the security program, to ensure the problem is being juvenile may have never been exposed to the addressed. Substance abuse issues can be criminal justice system. If this is the case, the addressed by making the individual's admission in juvenile frequently starts talking when confronted the WSP dependent upon substance abuse or with the harsh violence of the gang. In the Brenda mental health counseling. Other social service Paz investigation, one juvenile witness was issues can also be addressed in the WSP to ensure subjected to repeated threats upon his life by gang successful program participation. Before members who were concerned that he might start sentencing, and for witnesses who are not under cooperating. Ultimately, those threats served to court supervision, USAO staff can make referrals convince the witness that he had no choice but to to community resources, such as substance abuse come forward. Other juvenile witnesses who were counselors, mental health programs, or immigrant originally drawn to the gang by the social aspects aid agencies. of the lifestyle came to be deeply shaken by the violence, and were receptive to leaving the gang I. Witnesses without criminal involvement when offered the opportunity. These witnesses—young people who have never seen A witness who has no criminal involvement the resources the government can bring to sometimes has significant fears and a very confront a problem—often become some of the difficult time dealing with the challenges of being most useful witnesses. Solid coordination with the a participant in a criminal case. Relocation may be state is necessary to address the juvenile witness' very traumatic if he or she has to leave a job, situation because of the witness' age and family, friends, and familiar surroundings. This circumstances. One witness in the Brenda Paz class of witness tends to be very limited in gang murder investigation was not called as a witness cases. It is true, however, that family members by either side at trial, but still was able to take who are not members of a gang can observe advantage of available resources. The ability to criminal activity. This witness often reports the

40 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 criminal activity quickly, and it is only later when ABOUT THE AUTHORS the ramifications of that testimony become apparent, that he or she becomes recalcitrant. �Heather Cartwright has been an Assistant U.S. Fortunately, security and cooperation issues can Attorney for more than ten years and is now Chief be addressed before an indictment is returned and of the Victim Witness Assistance Unit at the U.S. the witness' identity becomes known to the Attorney's Office for the District of Columbia. defendants. She supervises a staff of four witness security specialists who daily assist crime victims and IV. Conclusion witnesses with a range of security measures from the WSP through EWAP to social services Efforts to intimidate witnesses challenge the programs. This witness security function is unique core of our judicial system. The failure to hold in this country. Ms. Cartwright also supervises those who intimidate or harm witnesses twenty-two additional staff who assist victims and responsible perpetuates a dangerous aura of witnesses with a variety of services including invincibility within gangs. Success in this area victim advocacy and logistical support. The demonstrates to the gangs that they can be USAO in Washington, D.C. aggressively splintered and dismantled. Success demonstrates prosecutes violent gang crime in both the Superior to witnesses that they will be protected. Court of the District of Columbia and the Victim/witness resources can greatly facilitate United States District Court for the District of the prosecution of these challenging targets by Columbia. providing needed support and services to those �Ronald L. Walutes, Jr. is an Assistant U.S. victimized by the gang and those who choose to Attorney for the Eastern District of Virginia, testify against the gang. Those tasked with assigned to the Terrorism/National Security dismantling criminal organizations must work Section. He has handled, among others, several closely with the USAO victim witness staff to major violent gang-related cases. Previously, Mr. access the variety of resources that exist to Walutes served as an AUSA for the District of support victims and witnesses. There are few Columbia in the Transnational/Major Crimes instances where a single law enforcement Section and in the EOUSA Office of Legal organization can pursue these types of Counsel. He was a speaker at the 2005-06 Witness investigations alone. Increasing the number of law Security Advanced Training Program.a enforcement agencies involved generally produces a much stronger case for the courtroom. Similarly, teamwork between government-based victim witness staff and those assigned to work an The authors also wish to thank Katherine investigation or case can significantly strengthen Manning, Attorney-Advisor for the Victim-Witness the individual witness' capacity to testify. The Program at the Executive Office for United States stronger the case, the more comfortable the Attorneys, for her assistance in the development witnesses, especially when they realize they and preparation of this article. helped break the code of the gang. Similarly, the cascading testimony from multiple witnesses serves notice to the gang that they are not above the law and will be held accountable for their actions.�

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 41 Immigration Authorities and Gang Enforcement

Claude Arnold members, develop informants, and gather useful Unit Chief intelligence about a gang's history, structure, Human Rights Violators and Public Safety leadership, and criminal activity. Office Federal law enforcement relies heavily on U.S. Immigration and Customs Enforcement street-level enforcement by state, local, and tribal agencies as an essential building block to charge I. Introduction violations of Racketeer Influenced and Corrupt Organizations (RICO), 18 U.S.C. §§ 1961-1968, istorically, street gangs in the Violent Crime in Aid of Racketeering (VICAR), United States formed within new 18 U.S.C. § 1959, conspiracy, and federal firearm Himmigrant communities, initially as violations. The application of immigration laws defensive organizations and as a replacement for will supplement, and can work hand-in-hand with their families from which they had been separated. street-level enforcement by state, local, and tribal These associations quickly transitioned into agencies, when building such an investigation criminal organizations and began victimizing their against a transnational street gang. own communities. Similarly, today's transnational street gangs, such as Mara Salvatrucha (MS-13), II. How it works were formed from groups of newly-arrived immigrants whose motivation was protection from Working in partnership with state, local, existing gangs. Ultimately, these gangs emulated tribal, and other federal law enforcement, domestic street gangs in their structure, United States Immigration and Customs subculture, and criminal activity. Enforcement (ICE) officials target transnational street gangs that are identified as the most Transnational street gang members are unique significant threats to communities. ICE obtains from domestic gangs in that, like the immigrant intelligence on all documented members and populations from which they draw their associates of a targeted transnational gang. membership, they are very mobile, highly Biographical information relating to those gang adaptable to new geographic areas, and they members is queried by the ICE Law Enforcement maintain connections in their native countries. As Support Center (LESC) through various such, they tend to be involved in cross-border Department of Homeland Security (DHS) law crime or violations with a nexus to the border. enforcement and commercial databases. This While this poses challenges to law enforcement, research identifies gang members who are the fact that the majority of transnational street immediately subject to arrest for various criminal gangs are made up of foreign-born members and administrative (removal proceedings) presents a unique opportunity to utilize violations. Working with its law enforcement immigration authorities when targeting the partners, ICE prioritizes gang members for organizations. apprehension based on their criminal history, As with any criminal organization, the position in a gang, and potential investigative ultimate goal of law enforcement is to disrupt and value. Coordinated enforcement actions are dismantle criminal street gangs. An essential carried out to arrest members of specific gangs for element of this strategy is the use of a "zero violation of state or federal laws. Such operations tolerance" policy in gang suppression, which often result in the apprehension of a significant translates to apprehending all gang members for number of gang members and provide an any violation of law. An aggressive enforcement opportunity to develop informants. Further, any strategy has an immediate disruptive impact on a gang members who were previously deported are gang's criminal activity. It also provides an subject to prosecution for Reentry After opportunity for law enforcement to debrief gang Deportation/Removal, 8 U.S.C. § 1326. Because of prior criminal convictions, many previously

42 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 deported gang members are further subject to who fear deportation to their native countries, can sentencing enhancements that can result in be persuaded to cooperate with investigators. significant prison terms. Gang members may be subject to prosecution C. Probable cause for future enforcement for other violations of law based upon their prior actions conduct, including submissions and requests for immigration benefits. For example, MS-13 gang Many members of transnational street gangs members may have filed for, and received, can be prosecuted in Immigration Court removal Temporary Protected Status (TPS). In obtaining proceedings pursuant to the Immigration and this status, they may have misrepresented facts Nationality Act (INA), 8 U.S.C. §§ 1101-1537. relating to criminal misconduct. The TPS Once deported, gang members are subject to application questionnaire includes questions felony prosecution if they illegally return to the relating to whether the applicant has engaged in United States. Therefore, any law enforcement drug trafficking or other criminal activity. ICE has officer participating in the investigation has assisted in successful prosecutions of alien probable cause to arrest a gang member who was terrorists for similar offenses, and these same previously deported. An arrest under these prosecution options are also applicable to many circumstances might yield additional evidence, gang members. Further, prosecutions for these either from items found when conducting searches types of criminal violations can be an incentive incident to arrests or admissions made by the for gang members to cooperate with investigators. defendant. It also provides an opportunity to In addition, transnational gang members who are obtain search warrants for evidence of alienage not subject to arrest for a criminal violation are (foreign birth certificates, passports, national often subject to removal proceedings. They are identity cards, among other things) in support of either in the United States illegally or have criminal charges against gang members who have violated their lawful immigration status due to illegally reentered the United States. criminal conduct. Arrest for removal proceedings may not provide the necessary incentive for all III. Immigration-Related investigative gang members to cooperate with investigators. It tools has been, however, a very effective tool in securing cooperation from certain gang members, The following immigration-related criminal particularly those from Central America, who fear statutes can be used to further transnational gang the rigid gang enforcement policies in their native investigations. countries. These initial enforcement actions serve to support a gang investigation in several ways. A. Reentry After Deportation/Removal (8 U.S.C. § 1326) A. Immediate disruption Prosecution for illegal reentry is a staple in Coordinated enforcement actions can result in transnational gang investigations. The majority of the immediate disruption of a street gang. A the "hard core" members of a transnational gang unified operation conducted by federal, state, and have been convicted of various criminal offenses, local law enforcement sends a message to the were subsequently deported from the gang and the community that the gang problem is United States, and returned here illegally. taken seriously. When gang members are removed Prosecutions for illegal reentry provide a vehicle from the streets, it has a positive impact on the to incapacitate the most active and violent quality of life in that community. members of a transnational street gang. These gang members are eligible for significant prison B. Development of intelligence and sources sentences, upon conviction. The apprehension of of information those charged with illegal reentry also provides an opportunity to obtain and execute search warrants Every opportunity to arrest a gang member for the homes and other locations where these gives law enforcement a chance to develop gang members have a proprietary interest. In intelligence on the gang's structure and criminal addition to the seizure of evidence that would activity. Additionally, gang members facing support an illegal reentry charge (birth significant sentences for criminal violations, or certificates, passports, and others), weapons,

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 43 contraband, and additional evidence to support Form to secure employment. These acts are conspiracies or enterprise prosecutions (RICO and violations of the multiple statutes referenced. VICAR) are often recovered during the execution • 18 U.S.C. § 1028(a)— and Related of such search warrants. Activity in Relation to Identity Documents. B. Illegal Alien in Possession of a Firearm • 18 U.S.C. § 1546—Visa Fraud. (18 U.S.C. § 922(g)(5)(A)) • 18 U.S.C. § 1001—False Statements. Street gang members frequently possess and • 18 U.S.C. § 1621—Perjury (including, use firearms to ply their trade and transnational falsification of certain immigration street gangs are no exception. Members of documents). transnational gangs who are in the United States • 18 U.S.C. § 911—False Claim to illegally are prohibited from possessing firearms United States Citizenship (For aliens who under federal law. In jurisdictions that have state falsely claim United States citizenship on statutes that are comparable to 18 U.S.C. form I-9). § 922(g)(5)(A), a defendant can be prosecuted by the state authorities or such prosecution can be • 42 U.S.C. § 408—Social Security Fraud. referred to the federal authorities. In federal Like the other immigration related offenses, firearm prosecutions, the firearm at issue can be these violations may provide an opportunity to forfeited upon conviction. A conviction for an 18 execute search warrants to obtain evidence in U.S.C. § 922(g)(5)(A) violation is considered an support of the fraud charges, which will often lead aggravated felony under the Immigration and to the recovery of contraband and evidence of Nationality Act and may make an alien subject to additional crimes. administrative removal, without a hearing before an Immigration Judge (IJ). Should the alien return IV. Removal proceedings to the United States illegally, he could be prosecuted for illegal reentry after deportation and Aliens can be removed from the United States be subject to a sentence of up to twenty years. As when an order of removal has been issued against with illegal reentry prosecutions, illegal alien in them. Most of the time, this occurs after an alien possession of a firearm cases provide further has been afforded an administrative hearing (a opportunities to recover incriminating evidence, removal hearing) before an IJ. Removal hearings through searches incident to arrests, admissions and proceedings are initiated when ICE takes an made by the defendant, and, if probable cause can alien into custody, serves the alien with a Notice be established, items recovered during the to Appear (NTA), and files the NTA with the execution of search warrants. Immigration Court. An alien is entitled to a detention hearing before an IJ to determine C. Federal violations related to the whether he will remain in custody during the possession and use of counterfeit pendency of the removal proceedings. An alien documents can be detained by the IJ during the immigration proceedings if he is either a flight risk or a danger Transnational gang members frequently lead to the community. It is usually not difficult to double lives. At night and on weekends, they may establish these factors for aliens who have be involved in criminal activity as part of their engaged in gang-related criminal activity. In some gang life, but during the day, many are employed. cases, such as when an alien is paroled into the Like some of the "undocumented" work force, United States (that is, when an alien is allowed to illegal alien gang members may have committed enter the United States on a temporary basis for various federal felonies involving the falsification urgent humanitarian reasons or a significant of records to obtain employment. For example, public benefit), the IJ does not have authority to they may buy a counterfeit Social Security Card, a release the alien. United States birth certificate, or a resident alien ("green") card, proceed to a prospective employer, Attorneys from the local ICE Chief Counsel present the counterfeit documents, and falsify Office represent the government in these hearings. form I-9, Employment Eligibility Verification The removal proceeding consists of two stages: (1) the government proves the charge(s) alleged in

44 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 the NTA and (2) the IJ considers whether an alien to contact the local ICE Chief Counsel Office for is entitled to relief (for example, asylum or case-specific advice on the immigration adjustment of status) that would permit him to consequences of a criminal conviction, prior to remain in the United States. If the government entering into a plea agreement. prevails before the IJ, the alien can appeal the decision to the Board of Immigration Appeals V. Judicial and stipulated removals as (BIA). ICE can physically remove an alien from part of plea negotiations the United States after the removal order becomes administratively final, unless a federal court issues AUSAs can play a crucial role in removing a stay of removal. An order becomes alien gang members from the United States. administratively final on the date the IJ order is Pursuant to 8 U.S.C. § 1228(c), an alien can also entered, if an alien does not appeal, or the date the be removed from the United States based on a BIA issues its decision, if an alien has appealed judicial order of removal in conjunction with the IJ's decision. criminal prosecution. This order is issued by the Criminal prosecutors must keep in mind that United States District Court at the time of the arrest of an alien for a criminal offense almost sentencing, upon the request of the AUSA. The never impacts his immigration status, absent a AUSA must follow strict procedural requirements criminal conviction. ICE cannot detain an alien to obtain a judicial order of removal. First, prior to arrested on criminal charges if he is otherwise in the commencement of trial or entry of a guilty legal immigration status. If an alien is not in legal plea, the AUSA must file with the district court, status (for example, the alien overstayed his visa), and serve upon the defendant and the local ICE he is subject to arrest by ICE on that basis alone Special Agent in Charge (SAC), a notice of intent and administrative removal proceedings may be to request judicial removal. Second, the AUSA, initiated. with concurrence of the local ICE SAC, must file, at least thirty days prior to the date of sentencing, If an alien is in legal status, a conviction may a charge containing factual allegations regarding trigger various immigration consequences, alienage of the accused and identifying the crime including arrest by ICE and removal from the or crimes which make the defendant removable. If United States. All convictions, however, do not the AUSA demonstrates that the offender is impact an alien's immigration status. In most removable, the district court can issue an order cases, the conviction must be a felony. Two removing the alien from the United States. misdemeanor convictions, however, will bar an alien from obtaining TPS in the United States, a In many instances, acceptance of a judicial form of relief that permits certain aliens from removal can be made a condition in a plea designated countries (typically, countries with agreement. This authority is specifically set forth ongoing armed conflict or a major natural in 8 U.S.C. § 1228(c)(5). As it is accomplished by disaster) to temporarily remain in the plea, the formal requirements set forth in subpart United States. Also, an alien may be subject to (c)(2) are not required. The AUSA must still removal even if a court sentences him to obtain concurrence of the local ICE SAC. It is probation. If a court sentences an alien to a year or also wise to consult with local ICE counsel to more imprisonment, however, the alien will likely assure that the alien is pleading to a proper be barred from most forms of relief from removal charge. removal—even if the court suspends the sentence. AUSAs can also participate in removing alien The type of offense and the length of sentence gang members from the United States by can also impact an IJ's authority to release an alien including stipulated removal provisions in the plea from ICE custody during the removal agreement. A stipulated removal is a written proceedings. Issues related to administrative agreement by the alien not to contest deportation detention can arise after a defendant is no longer before the IJ. The local ICE attorney files a joint detained in federal or state criminal custody. For motion for a stipulated removal order with the instance, drug and firearm convictions usually Immigration Court. The removal order becomes subject an alien to mandatory detention. Further, a administratively final after the IJ grants the sentence of imprisonment of one year or more will motion and signs the removal order. AUSAs are usually trigger mandatory detention. Assistant encouraged to contact the local ICE Chief United States Attorneys (AUSAs) are encouraged

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 45 Counsel Office for use of the stipulated removal VII. Conclusion order. Because transnational street gangs have a VI. Criminal and civil denaturalization significant foreign-born membership, immigration enforcement actions can have an immediate The possibility of using immigration impact by disrupting gang activity. Immigration provisions against street gang members who are enforcement also provides an opportunity to naturalized citizens must not be discounted. As a develop intelligence, sources of information, and member of a criminal organization, there is evidence to facilitate enterprise investigations always a possibility that a gang member was against gangs. The consistent application of involved in undetected criminal activity predating immigration enforcement efforts can often help to naturalization. Prior arrests and convictions are disrupt and dismantle a gang. usually identified through fingerprint checks ICE has the authority and expertise to apply during the naturalization application process. A immigration enforcement to disrupt transnational gang investigation, however, might reveal street gangs and to help develop enterprise undetected criminal acts that were committed by investigations to dismantle their organizations. the naturalized gang member that were either not AUSAs are strongly encouraged to contact their documented on the application for naturalization local ICE Office of Investigations or the ICE or were overlooked during the fingerprint check. Headquarters, Human Rights Violators and Public In such cases, criminal or civil denaturalization Safety Unit Chief at (202) 305-1598, when should be explored in conjunction with criminal embarking on a transnational gang investigation charges. In most cases, the criminal conduct that or prosecution.� was used as grounds for denaturalization can also be used to initiate removal proceedings after ABOUT THE AUTHOR denaturalization. The relevant statutes for both follow. �Claude Arnold oversees ICE's national gang • Naturalization Fraud (18 U.S.C. enforcement initiative—Operation Community § 1425(A)): Upon conviction for Shield. He has more than sixteen years of naturalization fraud, a subject is automatically experience in immigration enforcement and has denaturalized. Naturalization fraud has a ten- spent the majority of his career investigating and year statute of limitations. supervising the investigation of transnational • Civil Denaturalization (8 U.S.C. § 1451): street gangs.a Civil denaturalization is also pursued in U.S. District Court. There is no statute of limitations on civil denaturalization. The author wishes to thank Mark Jebson, Deputy Chief Counsel for ICE in Detroit, Michigan, for his contribution to this article. Mr. Jebson previously served as an Assistant United States Attorney in , Texas, where he prosecuted terrorism-related cases.

46 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 The Criminal Division Offers Expert Advice and Assistance For Gang- Related Cases

Robert J. Raymond investigations and prosecutions around the Senior Trial Attorney country. Narcotic and Dangerous Drug Section • GRIP at headquarters, utilizes Criminal Criminal Division Division expertise as a resource to help leverage the efforts of investigative agencies I. Introduction and Assistant United States Attorneys (AUSAs). ombating gangs and gang violence is • GRIP overseas, aims to enhance international one of the Department of Justice's operational efforts designed to combat C(Department's) top national priorities. transnational gangs. No other organized criminal threat involves such a wide range of serious offenses and affects so Operation GRIP allows the specialized and varied much of our country, from the smallest towns to skills and resources of the Criminal Division to the largest cities. In addition, gang activity often be coordinated and organized to more effectively spills across our nation's borders, creating and attack the problem of domestic gang violence and reinforcing an increasingly vicious cycle of to support gang-related enforcement efforts in the violence. field. In May 2005, the Attorney General directed The Criminal Division has a wealth of that a series of important additional steps be taken resources that are brought to bear in the fight to further combat gangs and gang violence. against gang violence. Criminal Division section Shortly thereafter, the Criminal Division launched experts in forfeiture and money laundering; a three-part initiative designed to complement and witness protection and immunity; federal juvenile support the Attorney General's efforts. Since that prosecutions; federal violent crime and firearms time, the Criminal Division has worked under the offenses; capital crimes; securing foreign-based leadership of the Anti-Gang Coordination evidence; and in the use of sophisticated tools, Committee run by the Office of the Deputy such as the Racketeer Influenced and Corrupt Attorney General (ODAG) and with other Organizations Act (RICO), 18 U.S.C. 1961-68, colleagues in the Department, including the the Violent Crime in Aid of Racketeering Executive Office for United States Attorneys (VICAR) statute, 18 U.S.C. §1959; and wiretaps (EOUSA), FBI, Bureau of Alcohol, Tobacco, and electronic evidence are available to work Firearms, and Explosives (ATF), Drug with United States Attorneys' offices. The Enforcement Administration (DEA), Office of experience of the computer crime and computer Justice Programs (OJP), Bureau of Prisons (BOP), forensic experts in the Division and the resources, United States Marshals Service (USMS) and know-how, and relationships of the Division's others, to implement the Department's strategy for interagency and international experts and trainers, the Criminal Division and to focus its expertise are also accessible for the USAOs' anti-gang and resources to combat the gang problem. The efforts. In addition, specific Division programs, Criminal Division's approach to help better especially through Operation GRIP, can be combat gangs is described as Gang Reduction utilized to complement other established law through Investigation and Prosecution, or "GRIP." enforcement initiatives and to deliver Division Operation GRIP has three primary components. resources and expert case assistance, which can enhance the efforts of gang prosecutors around • GRIP in the field, directly assigns Criminal the country. Division prosecutors to lead and support

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 47 II. Criminal Division Sections B. Organized Crime and Racketeering Section (OCRS) A. Domestic Security Section (DSS) Gang cases are often complex and frequently Law enforcement authorities report that gangs involve multiple targets with criminal activity in are responsible for most of the violent crime in the more than one district. OCRS attorneys are major cities of the United States. DSS attorneys, prepared to provide USAOs with legal advice on whose mission is to enhance the security of our RICO, VICAR, and other complex, nation's citizens and borders by enforcing federal multidefendant and multijurisdictional cases. criminal laws relating to violence, weapons, and Experienced OCRS Litigation Unit Trial immigration are poised to help attack the menace Attorneys, either individually or in tandem with of gang-related crime. DSS attorneys can provide AUSAs in the field, often staff investigations and USAOs with legal expertise on firearms offenses, prosecutions involving significant organized violent crime offenses, and immigration offenses, crime enterprises and gangs. including guidance regarding multidistrict cases, Remember, all requests to bring RICO and charging options, and assistance interpreting these VICAR charges must be approved by the OCRS statutes. Particularly relevant to juvenile gangs, RICO unit. (See USAM §§ 9-110.101, 9­ DSS can also provide expertise on bringing 110.802.) Expert attorneys in this unit provide federal charges against juvenile offenders under helpful advice to AUSAs and agents regarding the Federal Juvenile Delinquency Act, 18 U.S.C. the appropriateness of RICO as a tool for a §§ 5031-37. This expertise helps USAOs to district's gang problem, the type of evidence and determine whether the state or federal forum is the investigative work required to support RICO most appropriate, whether to transfer the juvenile charges, and how to structure an effective RICO for adult criminal proceedings, and to understand indictment and prosecution memorandum. OCRS associated procedural issues unique to juvenile can also provide training for AUSAs and agents proceedings. to familiarize them with these statutes and how DSS also plays a leading role in developing, they can be utilized to dismantle gangs and other supporting, and implementing the Department's criminal organizations. For further information, anti-gang efforts and Project Safe Neighborhoods please contact OCRS Deputy Chief P. Kevin (PSN), the Administration's gun violence Carwile, at (202) 514-3705, or Assistant Chief reduction initiative. DSS is a lead contributor to Amy Chang Lee, at (202) 514-6882. the PSN initiative and can provide information regarding how PSN has been, and can be, used as C. Narcotic and Dangerous Drug Section part of a district's anti-gang efforts, including best (NDDS) practices and innovative strategies involving prosecution, prevention, training, and enhancing A large part of gang activity today involves public awareness. In addition, DSS attorneys the manufacture, distribution, and trafficking of frequently collaborate with EOUSA on training drugs and narcotics, often across state and and conferences on subjects relating to gangs, national borders. NDDS expertise, developed firearms, and violent crime. DSS can assist Law from years of investigating and prosecuting high- Enforcement Coordinating Committees and level members of foreign-based international USAOs that are organizing such training by drug trafficking organizations, is very useful in identifying speakers and topics. For further coordinating enforcement efforts against major information, please contact DSS Trial Attorneys gangs. Nancy Oliver or Sam Marsh, at (202) 616-5731. For additional PSN-related information, please Several NDDS Trial Attorneys are situated at contact John Irving, Counsel to the Deputy the Special Operations Division (SOD), a DEA- Attorney General and National PSN Coordinator, led multiagency center which coordinates and at (202) 353-8878. supports regional and national-level investigations and prosecutions against major drug trafficking and money laundering organizations by targeting their command, control, and communications structures operating across jurisdictional boundaries. Initial case

48 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 coordination with the NDDS attorneys at SOD D. Asset Forfeiture and Money can enhance the quality of a multidistrict gang and Laundering Section (AFMLS) narcotics prosecution, through the use of electronic surveillance-based information. SOD Gangs are often sufficiently organized or can also share actionable investigative sophisticated to profit from control of criminal information with joint interagency task forces and activity in their territories. Therefore, curtailing AUSAs in support of these multijurisdictional or eliminating the proceeds of criminal activity gang investigations. can have a substantial impact on reducing the Coordinating a case with NDDS attorneys gang problem in a district. Attorneys in the assigned to SOD assists in developing an effective AFMLS Litigation Unit can advise AUSAs plan of attack, deconflicting with other districts whether asset forfeiture or money laundering and agencies investigating the same or related charges would be appropriate for their particular targets, understanding the transnational reach of gang prosecution, what kind of evidence and the case, and identifying the importance of investigative work might be necessary or helpful, disrupting and dismantling criminal narcotics and how to structure indictments and prosecution enterprises, both domestically and abroad. SOD memoranda in the event they pursue forfeiture or played an active role in coordinating legal and money laundering charges. Such advice might be investigative issues that arose during the course of tailored to the nature of the specific gang a recent investigation that involved gang cells investigation, such as the forfeiture of firearms, operating in various cities throughout the gang clubhouses, or prison bank accounts. In United States. Additionally, NDDS attorneys appropriate cases, AFMLS will assign litigators maintain relationships with many overseas-based to participate in gang-related investigations and U.S. law enforcement agents, as well as foreign trials. law enforcement and criminal justice Additionally, AFMLS attorneys can provide representatives involved in the investigation and advice on forfeiture and money laundering prosecution of drug organizations and/or criminal motions and pleadings for gang-related organizations, including those involving gangs. prosecutions. They also regularly provide training Trial Attorneys in the NDDS Litigation Unit to federal, state, and local prosecutors and are available to provide field support for the investigators on all aspects of asset forfeiture and investigation and prosecution of gangs involved in money laundering. AFMLS can also provide large-scale drug trafficking. These attorneys, information and sample documents relating to along with NDDS Policy Unit attorneys, are also asset forfeiture and money laundering matters, available to review and edit pleadings associated including restraining orders, seizure warrants, with drug-related cases and provide expert advice indictments, complaints, jury instructions, orders on a broad range of drug investigation- and of forfeiture, plea agreements, interlocutory sales, prosecution-related issues, including charging and expedited settlement forms. The AFMLS decisions, coconspiracy liability, cooperating point-of-contact for gang-related issues is Mia witnesses, and sentencing. Levine, Senior Trial Attorney, at (202) 305-4223. NDDS Policy Unit attorneys can also provide E. Office of Enforcement Operations assistance and training to AUSAs and agents in (OEO) methamphetamine manufacture and distribution, and its precursors, and other synthetic drugs, OEO attorneys oversee the use of the most diverted chemicals, and pharmaceutical controlled sophisticated investigative tools at the substances. Also, attorneys in the NDDS Wiretap Department's disposal. Since typical gang-related Unit are available to provide direct support to offenses, such as narcotics distribution, RICO, USAOs, upon invitation, on the use of Title III and firearms charges, are already Title III wiretaps in Organized Crime Drug Enforcement predicate offenses, OEO can assist gang-related Task Force investigations of gangs involved in law enforcement efforts by facilitating Criminal large-scale drug trafficking. For further Division approval of proposed interceptions of information, please contact NDDS Chief Kenneth wire, oral, and/or electronic communications Blanco or Joseph Donovan, Deputy Chief for pursuant to Title III of the Omnibus Crime Policy, at (202) 514-0917, or Adam Cohen, Control and Safe Streets Act of 1968, Pub. L. 90­ Deputy Chief for SOD, at (703) 488-4348.

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 49 351, 82 Stat. 197 (1968) (codified as amended in immunity, requires Assistant Attorney General scattered sections of 18 U.S.C. and 42 U.S.C.). approval. All requests for immunity in matters The advantages of using interceptions pursuant to must be forwarded to OEO's Witness Immunity Title III in gang-related cases are many. Unit, using the Department's standard immunity request for approval. See Criminal Resource • Identities of informants can be protected. Manual § 721. While the usual factors should be • The full scope of criminal conduct perpetrated considered in an immunity request, including the by members of the gang and their hierarchy value of the person's testimony and the likelihood can be revealed. of adverse collateral consequences to the person from compelling his testimony, possible • The identities of leaders who emerge after problems and issues in the gang context should arrests of former leaders are also frequently also be considered, including the close family revealed. relative exception, the person's conviction prior • The defendants often convict themselves by to compulsion, and authorization to prosecute their own words. after compulsion and related Kastigar issues. Of course, a Title III application must be precisely OEO's Policy and Statutory Enforcement written to meet probable cause and other Unit (PSEU) assists gang-related law requirements. It is time- and resource-intensive, enforcement efforts through its initial review of and is always under the supervisory authority of requests and recommendations regarding closure the court. of federal court proceedings to the general public. Closing the courtroom for a cooperating OEO's Victim-Witness Specialist can assist defendant may be particularly important when the victims of, and witnesses to, gang violence, by matter involves a gang operating in a relatively providing travel funds that will allow them to limited geographic area. The PSEU also assists travel to testify in Criminal Division gang gang-related law enforcement efforts through its prosecutions, as well as provide referrals to initial review of requests, and preparations of outside resources for counseling and other related recommendations, for S visas. These visas assistance. [Please note that the Department's grant immigration status for up to three years to Office for Victims of Crime (within the Office of alien witnesses or informants who possess critical Justice Programs) is able to provide approved reliable information about a criminal organization victims of gang violence with certain or enterprise, and are willing to supply, or have compensation for injuries suffered as a result of supplied, such information to federal or state law that violence. Their Web site is enforcement authorities or a federal or state court. www.ojp.usdoj.gov/ovc.] OEO attorneys also The parents, spouse, and children of a coordinate and administer matters relating to all cooperating alien are eligible for derivative S visa aspects of the federal Witness Security Program status. While the WSP protects witnesses from (WSP), and approve or deny requests by federal potential danger in the United States, S visas help agencies to use federal prisoners for investigative to protect witnesses likely to be in danger as a purposes. OEO's Witness Security and Special result of their cooperation, if they are deported. If Operations Unit assists AUSAs and agents and approval is granted, S visas can be a powerful approves gang-related law enforcement efforts, incentive in obtaining the cooperation of alien including covert operations in correctional gang members who fear retaliation, if deported, facilities, through its oversight of the use of based on their cooperation with law enforcement federal prisoners by investigative agencies. See and/or their gang membership. USAM 9-21.050. Many of the cooperators and targets of these investigations are members or OEO assists gang-related law enforcement associates of violent gangs. efforts through its oversight of the Special Administrative Measures (SAMs) Program. OEO OEO also assists gang-related law is responsible for the initial review of requests to enforcement efforts through its initial review of impose SAMs on BOP inmates, and non-BOP requests to immunize witnesses pursuant to 18 federal pretrial detainees, pursuant to 28 C.F.R. U.S.C. §§ 6001-6005. Title 18 U.S.C. § 6003 § 501.2 (to prevent the unauthorized disclosure of covers court and grand jury proceedings, and is National Security Information (NSI) classified applicable in the gang context. Only statutory information), 28 C.F.R. § 501.3 (to prevent acts immunity, as distinguished from informal

50 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 of violence and terrorism), and the inherent advice and assistance on international criminal authority of the Attorney General (for non-BOP matters, including those involving gang-related federal pretrial detainees). Section 501.3 is issues to USAOs, as well as to state and local appropriate in the case of a violent gang member. prosecutors. OIA attorneys coordinate the The Attorney General must personally approve extradition or other legal return of international the original imposition of SAMs, while the fugitives, including fugitive gang members, and Assistant Attorney General for the Criminal all international mutual legal assistance, such as Division may approve the imposition of all SAM the formal exchange of evidence. extensions, as well as modifications that lessen the In concert with the State Department and confinement condition(s). other responsible officials, OIA attorneys SAMs are imposed in order to prevent participate in the negotiation of new treaties, communications that may facilitate criminal acts conventions, and other bilateral and multilateral that could result in the infliction of death or agreements on international criminal matters. serious bodily injury. In the gang context, such OIA attorneys are permanently assigned as communications may include exhortations to or Department Attachés to the Embassies in Mexico from coconspirators to undertake acts of violence, City, San Salvador, and other overseas locations. identification of government employees or their OIA attorneys also serve on a number of families for later retaliatory acts by gang committees of international organizations that are members, instructions to or from the restrictee directed at resolving a variety of international law regarding the taking of some action designed to enforcement problems, such as narcotics further violent objectives, intelligence gathering trafficking, organized crime, cybercrime, about the facility or personnel where the inmate is corruption, terrorism, and money laundering. The housed or was questioned, and information about Criminal Division established the International questioning techniques and the information Anti-Gang Task Force to better coordinate intra- disclosed during questioning. Requests for and interagency transnational operational efforts implementation of SAMs should be submitted via and address critical gang-related issues, such as fax, or otherwise in writing, to the Director of the the repatriation of deportees from the Office of Enforcement Operations. United States back to their country of origin and the improvement of existing extradition treaties Finally, OEO approves or reviews other and mutual legal assistance practices. The OIA matters that may be involved in gang-related point of contact for gang-related issues is Senior prosecutions, such as disclosure of grand jury Counsel John K. Wallace III, at (202) 305-9254. information, attorney and press subpoenas, and the transfer of prisoners to and from foreign countries to serve the remainder of their prison G. Computer Crime and Intellectual sentences. Attorneys from OEO are available to Property Section (CCIPS) provide training on electronic surveillance policies and procedures, as well as matters The 2005 National Gang Threat Assessment relating to witness security. In addition, they will revealed that gang members are becoming more provide advice and sample pleadings and forms in sophisticated in their use of computers and any OEO subject area. The point of contact for all technology and that these tools are being used to OEO matters involving gang cases is Thomas recruit, coordinate, and commit crimes faster and Taylor, Associate Director for Policy, Office of more efficiently. See 2005 Gang Threat Enforcement Operations, at (202) 353-8035. The Assessment (NAGIA 2005), available at http: OEO Victim-Witness Specialist is Jennifer Parks, //www.nagia.org/PDFs/2005_national_gang_ at (202) 305-9286. threat_assessment.pdf. The use of technology by gangs is also providing law enforcement with F. Office of International Affairs (OIA) new leads and evidence. CCIPS attorneys and technical experts remain on the cutting edge of Since many gang members, although born in new technology and can help find ways to use or living in the United States, maintain ties with technology to advance investigations. In counterparts in foreign countries, important particular, CCIPS' newly formed Cybercrime Lab transnational and international issues associated can provide training and expert advice on with gang prosecutions often arise. OIA provides technical components of investigations and prosecutions. The CCIPS points of contact are

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 51 Stephen K. Brannon, Cybercrime Analyst, III. Conclusion Cybercrime Lab, at (202) 353-9404, and Mick Stawasz, Senior Counsel, at (202) 353-3626. In the past year, the Criminal Division has joined with USAOs to enhance federal H. Capital Case Unit (CCU) investigation and prosecution of gang violence, as part of the Department's overall strategy to The increase in gang violence means a coordinate anti-gang activity and the Criminal corresponding increase in gang cases that involve Division's Operation GRIP. Although numerous crimes for which the death penalty can be sought. gangs have a nationwide presence, the successful CCU is charged with overseeing the Department's prosecution of gangs depends upon district-by­ capital prosecutions. In addition to providing the district coordination at the federal, state, and local expertise and analysis necessary to complete the level. The role of the USAOs is obviously preliminary capital review process, CCU attorneys indispensable. Whether the district is one with a provide legal, procedural, and technical assistance well-established record of gang prosecutions or is to USAOs in capital investigations and confronting a more recent gang phenomenon, prosecutions; provide training for federal capital Operation GRIP offers a variety of vital tools and litigators; draft legal memoranda and pleadings; resources that can greatly enhance the USAO's maintain a resource library on capital issues; and efforts to combat gang activity.� provide assistance in capital trials, appeals, and postconviction litigation. For further information, ABOUT THE AUTHOR please contact CCU Chief Margaret P. Griffey at (202) 353-9723. �Robert J. Raymond is a Senior Trial Attorney in the Narcotic and Dangerous Drug Section in the Department's Criminal Division. He is currently assigned to the Policy Unit, specializing in substantive, procedural, and policy matters relating to domestic and international counternarcotics investigations.a

Gang Prevention: How to Make the "Front End" of Your Anti-Gang Effort Work

Phelan Wyrick, Ph.D. great strides toward accomplishing shared public Gang Program Coordinator safety goals will be made. Agreement on this Office of Juvenile Justice and Delinquency concept, however, is still a long way from having Prevention the will, resources, or ability to implement prevention programs that show results. Some people may be skeptical about the feasibility of I. Introduction effective gang prevention, thus, they do not have the will. A few may think too narrowly about ost people agree with the basic gang prevention and the assets that relate to it, concept that if young people are thus, they feel there are no resources. Others may Mprevented from joining gangs or if the have the will and the resources, but they overlook violence associated with gangs can be stopped,

52 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 the best practices in implementing gang described by psychologist Erik Erickson as prevention and related activities. "identity vs. role confusion." ERIK ERICKSON, CHILDHOOD AND SOCIETY 150 (Penguin Books Gang prevention is challenging work. There 1993). In short, all adolescents are trying to figure have been many advances, however, in knowledge out who they are as they move toward adulthood. and practice, that greatly increase the ability to be It is not uncommon for them to "try on" different successful. U.S. Attorneys' offices can be highly identities during this time. This is a normal effective leaders in local anti-gang initiatives that process that is harmless for most youth, but can incorporate prevention. Federal prosecutors have a also lead to risky and illegal behaviors. clear vested interest in gang prevention and provide a vital link between knowledge and The heightened importance of peer groups, resources at the federal level, and action at the and what psychologists call "egocentrism," are local level. The purpose of this article is to two other key developmental characteristics of provide federal prosecutors with a firm knowledge adolescence. As children turn into adolescents, of the foundations for gang prevention that are their focus of social attention and approval shifts required to get results from the front end of local from adults to their peers. During this time, anti-gang initiatives. Successful gang prevention adolescents become increasingly is based on the proper balance of (1) attractive egocentric—meaning that they perceive the world alternatives to gangs, (2) effective support as revolving around them—and they are deficient systems for young people, and (3) accountability in the ability to accept other perspectives. of young people to their parents, schools, and Egocentrism has a number of consequences. For communities. Discussed below are the principles example, otherwise neutral events are more likely of effective gang prevention, a framework for seen as personal slights, perceived injustices are implementing them within a community-based often blown out of proportion, and the ability to anti-gang initiative, and information about empathize with others is underdeveloped. Taken resources to assist in these efforts. together and applied in the context of a community with high levels of gang activity, II. Foundations of effective gang normal adolescent development can result in very prevention dangerous outcomes. Consider the common adolescent experience of being embarrassed or Gang prevention is an effort to change the life humiliated in front of a group of peers. This trajectory of a young person who is otherwise situation is difficult for any adolescent, but it can likely to join a gang. Young people who join become deadly in the context of gang gangs are exercising a choice. The decision to join involvement. Gangs have access to illegal guns a gang is usually not made under extreme duress, and norms that support violence as an appropriate though there are pressures placed on adolescents method for resolving conflict. Many in local law in this area. In fact, young people frequently see enforcement are well aware of how frequently gangs as an attractive choice or a solution to their gang violence stems from seemingly minor problems. From a practical perspective, gang "beefs" between adolescents. prevention must address the needs and desires that underlie these choices in order to be effective. B. Why young people join gangs There are several sources of information on what young people want and what they need that have Gang researchers Scott Decker and Barrik direct relevance to gang prevention. The first Van Winkle describe forces that "pull" and "push" source of information on this topic comes from young people into gangs. See, SCOTT H. DECKER what we know about normal adolescent & BARRIK VAN WINKLE, LIFE IN THE GANG: development. FAMILY, FRIENDS, AND VIOLENCE (Cambridge University Press 1996). If you ask current or A. Normal adolescent development former gang members, they are likely to describe the "pulls." That is, they will describe those It is not a coincidence that the onset of attractive features of gang membership and the adolescence overlaps with the average age for gang lifestyle that typically include respect, joining a gang (twelve to fourteen years old). The excitement, social opportunities, protection, and central developmental challenge of adolescence is money. Respect in the context of gang membership translates more directly into

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 53 intimidation or fear. Everyone wishes to be treated • Individual risk factors—such as aggression or with respect, but gang membership offers young fighting, conduct disorders, and antisocial people a shortcut to earning respect. Excitement in beliefs. the gang refers to risky behaviors, illegal activity, J.C. Howell & A. Egley, Moving Risk Factors and generally upending the societal norms that Into Developmental Theories of Gang define appropriate and inappropriate behavior, for Membership, 3 J. YOUTH VIOLENCE AND JUV. example, parties where alcohol, drugs, and JUST. 334-54 (2005). members of the opposite sex are readily available. The desire for protection among young people The more risk factors in the life of a young sometimes strikes a chord of compassion in person, the greater the probability for joining a adults. Some are tempted to ask, "Could it be that gang. A study of Seattle youth found that those young people are really safer in gangs?" The with seven or more risk factors at age ten to answer is no. Despite myths to the contrary, gangs twelve were thirteen times more likely to join a do not protect their members. Gang members are gang than those with no risk factors. KARL G. more likely to become victims because they HILL, CHRISTINA LUI, AND J. DAVID HAWKINS, embrace a lifestyle in which their own violence DEP'T OF JUSTICE, EARLY PRECURSORS OF GANG begets more violence. Finally, although some MEMBERSHIP: A STUDY OF SEATTLE YOUTH gangs and gang members make large sums of (2001). This cumulative effect of risk factors is money through drug distribution or other criminal very important to gang prevention and enterprises, many gangs lack the organizational intervention. No one risk factor rises clearly above sophistication to carry out these operations and, the rest, and different configurations of risk those that do, tend to concentrate most of the factors are likely to be present in different profits in the hands of a few people at the top. communities and for different individuals. Thus, Thus, gang members often suggest motivations gang prevention and intervention efforts must be for joining gangs that seem like rational needs and poised to identify those risk factors that are at desires. Gangs do not deliver on these promises, play, determine which are most amenable to however, and the fun and excitement that are change, and target those with effective services at delivered lead to hazardous and destructive the community, family, or individual level. behaviors that can be fatal or life altering. In summary, there are a variety of things that The forces that "push" young people into young people want and need that have direct gangs have been verified by numerous relevance to gang prevention. Adolescents need longitudinal research studies that examine the opportunities to explore their identity and the conditions early in life that are related to an healthy paths to adulthood. They need to do this increased probability of gang membership in later with their peers in a social setting that is safe. years. Researchers have identified dozens of these They want to have fun and excitement. They want conditions, called risk factors, that fall into five to be respected. They want access to money. general categories or life domains. Researchers Indeed, many who work with and have studied at- James "Buddy" Howell and Arlen Egley of the risk youth find that they would be content simply National Youth Gang Center (NYGC) recently to have improved access to meaningful summarized the five domains of risk factors for employment. They have a wide variety of needs gang membership. and personal challenges that fall into the five risk- factor domains related to their community, school, • Community or neighborhood risk family, peers, and personal issues. The needs and factors—such as access to drugs, availability desires of youth can point the way to alternatives of illegal firearms, and the local crime rate. that can compete with the features of gangs that • Family risk factors—such as sibling antisocial attract them. These needs and desires also help us behavior, low parental control, and family understand what is required for effective support poverty. systems. Superior gang prevention efforts blend effective support systems with attractive • School risk factors—such as low academic alternatives to gangs, and target these services to aspirations, low school attachment, and adolescents who are most at risk for gang learning disabilities. involvement. • Peer group risk factors—such as association with delinquent peers and/or aggressive peers.

54 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 III. Community-based anti-gang behavior. Effective enforcement and prosecution initiatives targeted at this small group of individuals will reduce community crime because each individual A. Gangs and crime in the community in this group is responsible for committing a large number of crimes. These individuals represent It is frequently said that no two gangs are perhaps as little as 7 or 8 percent of offenders, but may account for 40 or 50 percent of all crime. alike. Even gangs that share the same name may have very different structures, group dynamics, Members of Group 2 are candidates for gang intervention, members of Group 3 are candidates membership characteristics, and offending patterns. Likewise, no two communities are for secondary prevention, and members of Group 4 are recipients of primary prevention services. exactly alike, as local leaders and community members are quick to point out. The best anti- With the exclusion of targeted enforcement (which is well-covered in other portions of this gang initiatives are tailored to meet local needs and challenges, but benefit from broader-based Bulletin), each of these strategies is discussed in turn as they relate to groups identified in Figure 1. research and best practices. On the front end of these initiatives are concerted efforts to understand how local gang characteristics and B. Gang intervention dynamics interact with a range of social forces that are also local and community-based (for Gang intervention includes a balance of example, demographic trends, housing, services and opportunities with supervision and employment, historical events, law enforcement accountability (namely, "carrot and stick") that is practices, and others). Before tackling the local tailored to the circumstances of individual gang- issues, there is value in considering a general involved or high-risk youth. Gang members and framework for the ways that gangs affect associates typically engage in elevated levels of communities. violence, property crimes, weapons violations, and drug offenses relative to their nongang­ Figure 1, on page 53, provides a general involved peers. They are also more likely to be sense of how gangs relate to illegal activity and exposed to numerous risk factors in the five population in a community with gang problems. domains already discussed. Beyond that, there are Group 1, at the top of the triangle, represents few simple ways to characterize them. serious, chronic, and violent offenders that are a relatively small portion of the population, but are • They may or may not be in school. responsible for a disproportionately large share of • They may or may not be employed. illegal activity. Group 2 consists of gang-involved youth and associates who make up a relatively • They may or may not be on probation or larger share of the population, are responsible for otherwise in the juvenile or criminal justice significant levels of illegal activity, but are not system. necessarily in the highest offending category. Effective gang intervention requires Members of this group typically range in age from coordinated partnerships of agencies and service twelve to twenty-four years. Group 3 is made up providers that use information-sharing across of the seven to fourteen-year-old youth who have agency types (police, juvenile courts, schools, already displayed early signs of delinquency and prosecution, community agencies) to facilitate risk for gang membership, but are not yet gang- targeting and outreach to gang-involved youth and involved. They will not all go into gangs, but they their families, a system of graduated sanctions, are the likely pool of candidates for gang and effective case management. Partners in gang membership in the near future. Group 4 represents intervention often include law enforcement, everyone else living in a community where gangs courts, probation offices, social services, are present. employment services, schools, community groups, These four groups clearly relate to four basic faith-based groups, and others. The basic strategies for combating gangs. Members of intervention message to gang-involved youth can Group 1 are candidates for targeted enforcement be summed up as follows: "We are working and prosecution because of their high level of together to reduce violence and gang activity in involvement in crime and the low probability that our community. We are aware of your gang other strategies will reduce their criminal involvement and are concerned about illegal

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 55 Figure 1

activities and the safety threat you pose to • Effective support systems. Effective support yourself and others. We are offering alternatives systems are necessary to address specific to the gang lifestyle in the form of social services, social, emotional, and psychological needs job opportunities, and educational opportunities. and challenges faced by adolescents in Whether you pursue these alternatives or not, you general, and high-risk adolescents in will be held accountable if you continue to pose a particular. threat to community safety." • Accountability. Accountability is required to demonstrate and enforce clear expectations C. Secondary prevention for appropriate behavior. Inappropriate behaviors in the context of prevention Secondary prevention refers to programs and programs frequently do not rise to the level of services that are directed toward youth who have illegal activity. Consequently, enforcing clear already displayed early signs of problem behavior standards may take the form of withholding and are at high-risk for gang involvement. This is access to the most attractive features of the group that rises to the top of the prevention program participation. In cases where priority list for many people because they are behaviors are more serious, clear and most likely to face the choice of whether or not to appropriate sanctions beyond the program join the gang in the near future. This is the group should be readily available. that most needs the three basic elements of effective gang prevention. D. Primary prevention • Attractive alternatives. Attractive alternatives divert time and attention from the gang Primary prevention refers to services and lifestyle by providing healthy and accessible supports that reach the entire population in venues for fun, excitement, and social communities with high crime or gang activity. interaction. These are safe venues to learn and These efforts typically address needs or risk practice healthy forms of gaining and showing factors in a way that is available to all youth and respect. families, or supports the community as a whole. Delivery of these services may flow through units

56 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 of government, local schools, community partnerships, however, are critical to the success organizations, or faith-based organizations. of any such efforts. Such partnerships will include Examples include public awareness campaigns, members from different sectors, professions, and one-stop centers that improve access to public walks of life, particularly when gang prevention services, school-based life skills programs, and intervention are part of the mix. Participants community clean up and lighting projects, and come to the table with different perspectives and community organizing. Such a broad range of knowledge of the issues. Although any activities does not strike some people as having partnership is well-advised to work quickly much bearing on gang prevention but, in fact, toward meaningful accomplishments, it is also gangs thrive in areas that appear to be forgotten or important to give the group time to build a overlooked. When there is clear evidence that common framework for approaching the central residents care about their community, gangs begin challenge. Community members frequently have a to lose their foothold. very different perspective on gangs than law enforcement and educators and social service IV. A framework for implementing providers may have still different perspectives. An multiple anti-gang strategies open, but focused discussion on defining the terms gang, gang member, and gang-related incident The strongest community-based anti-gang will help participants share their perspectives, initiatives will combine four strategies— clarify their thinking, and reach a common enforcement, intervention, secondary prevention, starting point. Statutory definitions of these terms and primary prevention—to maximize the impact that relate to prosecution practices are fair game across the individuals in all four groups for this discussion, but the discussion can be more represented in Figure 1. Each strategy helps the far-reaching in the context of a multistrategy, others in important ways. For example, community-based initiative. enforcement and intervention efforts interface Structurally, the partnership should have at with many of the high-risk youth who are perfect least two tiers. The leadership team sets the candidates for secondary prevention services, such direction of the initiative, steers resources, and as the younger siblings of active gang members. sets and modifies policies and practices. This team Appropriate referral mechanisms take advantage must include key leaders from each of the of these contacts to channel high-risk youth into participating agencies, as these leaders can send a appropriate prevention services. Also, the work of powerful signal about the importance of the prevention practitioners may be hindered by local initiative, as well as commit resources. The gang dynamics and activity that directly affect operational teams directly implement activities their younger clients and their families. An and services for youth, families, and other enforcement response may be necessary before community members, in a variety of settings. prevention efforts can take hold. Implementing Effective operational teams are important for each and coordinating multiple anti-gang strategies in a strategy, but they are absolutely essential in order community is very challenging work, but the for gang intervention and secondary prevention hard-earned lessons of communities across the strategies to meet the wide-ranging needs of high- country that have done this can save others from risk youth. Thus, an anti-gang initiative may end making costly and time-consuming mistakes. up with several operational teams carrying out These lessons highlight the importance of components of the overall effort and reporting partnerships, leadership, assessment, and back to the leadership team. planning. Information sharing is a major issue at the A. Partnerships and leadership operational level. Professionals in this area are well acquainted with proper standards and practices for sharing information on juveniles. United States Attorneys' offices (USAOs) are Family Educational Rights and Privacy Act, 20 in an excellent position to exercise broader U.S.C. § 1232g. Likewise, law enforcement leadership in gang prevention and community- professionals are aware of confidentiality based anti-gang initiatives. Their leadership in requirements pertaining to intelligence records Project Safe Neighborhoods (PSN) provides an and crime incidents. Criminal Intelligence excellent foundation for the gang prevention Systems Operating Policies, 28 C.F.R. Part 23. activities described thus far. Effective

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 57 Information must also flow freely, however, gang-related crime, but however it is defined, between the operational and leadership levels of there is great value in being able to measure an anti-gang initiative. Through direct the who, what, when, where, how, and why, involvement with these youth and their families, of gang-related offenses. From a gang operational level personnel can identify the prevention standpoint, it is very important to challenges and obstacles encountered, and know to what extent gang offenses are communicate them to those who are most able to occurring in and around school grounds on affect necessary changes. weekdays during the school year. What proportion of aggravated assaults are gang- Creating a community partnership on youth related? What is the age range of gang violence or gangs is not always necessary because offenders and victims of gang offenses? This there may already be an existing group that can be is just the beginning of the kinds of questions set to the purpose. In some areas, leaders are that have local importance. The problem is spread very thin because they are involved in so that many jurisdictions do not maintain gang many partnerships. Building on an existing crime incident data, or they do a poor job of partnership shows a recognition of the prior work maintaining these data. Gang intelligence of potential partners and an appreciation for their information, while valuable to gang tight schedules. Even so, starting a partnership is prevention and intervention for other reasons, the easy part, maintaining it is much harder. does not substitute for gang incident data. For Partnerships that come together in response to example, gang intelligence data may indicate high-profile incidents too frequently lead to short- what gangs are active in the area, who their term responses and fall apart due to lack of focus members are, their symbols, their rivalries, and direction. their age range, and their size. Only gang incident data, however, will tell you that 40 B. Assessment and planning percent of gang-related aggravated assaults are occurring on weekdays, between the hours A good way to maintain a community of 2:00 p.m. and 6:00 p.m., within a half mile partnership is to collect data to help prioritize of three local schools. Having this kind of issues and specify goals and objectives that information increases the probability of clearly define the scope and focus of the initiative. implementing successful gang prevention, This has emerged as one of the most important intervention, and enforcement strategies, lessons in more than ten years of implementing because it allows leaders and operational and studying multi-strategy anti-gang initiatives personnel to target their resources and supported by the Department of Justice's services in a way that is tailored to the local (Department) Office of Juvenile Justice and gang problem. Delinquency Prevention (OJJDP). The same lesson has been drawn from PSN. Careful • Gang prevention and intervention activities assessment and planning lead to success and keep rely on a network of community resources. partnerships together because they maximize the One agency or organization can not utility of existing resources, improve targeting of effectively meet the many needs of high-risk anti-gang activities to geographic areas, improve and gang-involved youth. It is often necessary targeting of services to individuals, and provide a to inventory community resources because baseline from which program performance can be many communities lack any central directory measured. Further, a detailed plan based on of services and service providers that might be assessment data is critical to securing most forms most beneficial to gang prevention and of outside funding. The NYGC has developed a intervention. A community resource inventory manual on assessing community gang problems should include such information as the types that is available on its Web site of services delivered, eligibility criteria, http://www.iir.com/nygc/. Two of the most ability to accept new clients, and experience important features of a high quality gang problem working with high-risk populations. The assessment, as they relate to prevention and online Community Guide to Helping intervention, are described below. America's Youth allows users to register for a password-protected account for storing and • Gang-related crime incident data must be mapping community resource inventory data. available. There are different ways to define a

58 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 This Guide is available at Helping America's Youth initiative. All of the http://www.helpingamericasyouth.gov/. youth-serving agencies in the government worked together to establish a single set of criteria for V. Gang prevention resources rating the performance of youth-serving programs. The focus of this effort was on program designs The discussion of gang prevention resources that had demonstrated results through evaluation. must be divided into informational resources and More than 180 programs that address a wide range funding resources. In both cases, however, a of risk factors were identified and have been common guiding principle applies: do not get included in a searchable database on the hung up on the word gang. The risk factors that Community Guide to Helping America's Youth are root causes for joining gangs overlap Web site, http://www.helpingamericasyouth.gov/. considerably with the risk factors for delinquency For each program, the database includes and violence more generally. On the information information on the program design, the risk side, there are a host of programs that do not factors that are addressed, the target group, the claim to be gang prevention programs, but have evaluation design, outcomes, references for demonstrated their effectiveness in addressing one further information, and a point of contact. The or more of these common risk factors. These most obvious use of this database is to identify programs might be very valuable components programs for potential replication. However, it within the framework of a multi-strategy, anti- can also be used as a point of comparison for gang initiative. existing local programs that are working to accomplish the same ends. A. Information resources The NYGC is another valuable resource in support of gang prevention and intervention There are several reasons why this article does programs. NYGC has been supporting not name a single specific gang prevention or practitioners, researchers, and policy makers, intervention program. Widely popular programs since 1995 with statistics, publications, training with extensive funding support sometimes show and technical assistance on youth gangs. Its goal little or no results. Other programs die for lack of is to deliver assistance that can be translated easily funding only to see evaluation reports a year later into policy and practice. The NYGC Web site that show the program was working. Program (http://www.iir.com/nygc/default.htm) features replication hinges on the quality of program scores of gang-specific publications in full text design and the quality of implementation. There is and fully downloadable, a database of gang reason to believe that the quality of legislation that is easily searchable by state or by implementation is the more important of these topic, and an interactive listserv called two. Mark Lipsey is a researcher at Vanderbilt GANGINFO that provides practitioners with a University who has studied hundreds of juvenile forum for sharing ideas. justice and delinquency prevention program evaluations using sophisticated statistical B. Funding resources techniques called meta-analysis. He found that programs with the highest quality designs, that USAOs and their community partners should were well implemented, achieved the best overall have some knowledge of the funding sources success. The programs with the lowest quality available through the Department. Gang designs that were well implemented, however, prevention programs draw on those same performed just as well as those programs with the resources, but may also draw on funding streams highest quality designs that were poorly from other departments and agencies, such as implemented. Hence, the focus of this article has Health and Human Services (HHS), Education, centered on quality implementation. Nevertheless, Labor, and the Corporation for National and program design cannot be overlooked. Mark W. Community Service. Each of these federal Lipsey, What Can You Build with Thousands of departments has Web sites that should be visited Bricks? Musings on the Cumulation of Knowledge periodically to identify federal programs and in Program Evaluation, 76 NEW DIRECTIONS FOR funding opportunities. For example, within HHS, EVALUATION 7 (1997). the Administration for Children and Families has The federal government recently embarked on programs and funding to combat child abuse and an unprecedented task as part of President Bush's neglect. The Department of Education has the

MAY 2006 UNITED STATES ATTORNEYS' BULLETIN 59 office of Safe and Drug Free Schools that VI. Conclusion provides assistance for drug and violence prevention activities. The Corporation for The most convincing advocates for the National and Community Service supports importance of gang prevention are the law volunteer organizations around the country that enforcement officers and prosecutors who have serve underprivileged communities and can worked for years arresting gang members. They directly involve youth. are so convincing because they can give first-hand In addition, there are two sources that provide accounts of the young people that cycle into the funding information from across federal agencies. gang lifestyle, become offenders, and become victims. Some die young, some go to prison, and • The Catalog of Federal Domestic Assistance some continue on a ruinous path into adulthood. (CFDA), available at http://www.cfda.gov/. Soon, their children are old enough to be next in • Grants.gov, available at line and the pattern continues. The goal of gang http://www.grants.gov/. prevention is to interrupt this cycle. Some have viewed this as nothing more than a dream. Others CFDA is the best place to find federal government are working hard to make it a reality. Whether that funding streams and grant programs. Grants.gov is goal is achieved, or not, will depend on the a better resource for finding all the specific grant willingness to dedicate time and money to this funding opportunities currently open. The Federal purpose in a way that will continue to build Resource Guide for Weed and Seed Communities knowledge and increase the number and quality of is another valuable resource that should be gang prevention tools at a community's disposal. familiar to many USAOs. This printable guide provides brief descriptions of federal agencies and For further information about gang prevention programs that can be particularly helpful in and intervention, contact Phelan Wyrick at 202­ � community-based, multi-strategy initiatives. See 353-9254. Dep't. of Justice, Office of Justice Programs, Federal Resource Guide for Weed and Seed ABOUT THE AUTHOR Communities (2004), available at http://www.ojp. usdoj.gov/ccdo/pub/pdf/WSFedResGuide.pdf. At �Dr. Phelan Wyrick is the Gang Program the state level, much of the funding that could be Coordinator for the Office of Juvenile Justice and used for gang prevention flows down from the Delinquency Prevention of the Department. He federal government in the form of formula or oversees federal demonstration initiatives, block grant funding. The state administering research, and training on youth gangs. He serves agencies for all of the Office of Justice Programs on the Helping America's Youth interagency funding can be easily found by state at working group and provides policy http://www.ojp.usdoj.gov/state.htm. recommendations within the Department on gang Private and company-sponsored foundations prevention and intervention. Prior to joining should also be considered as potential funding OJJDP in 1998, Dr. Wyrick conducted operations sources. There are many foundations that set research and program evaluation for the Westminster Police Department in Orange general goals of supporting projects that reduce a violence, help youth, address conditions of County, California. poverty, or simply improve community life. There is no single reference or source of information on private and company-sponsored foundations, but there are a growing number of online directories—some of which are free and some that charge a fee to access. In addition to topical focus, foundations vary in geographic range with some focusing more regionally and some operating at a national level.

60 UNITED STATES ATTORNEYS' BULLETIN MAY 2006 Notes

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