Interview with Mr. Rob Livermore, Federal Prosecutor in Washington DC

20.06.2012

Teza Magazine, Issue 3/2012

Mr. Livermore was the first lecturer in the training program for the Bulgarian Specialized Prosecution Office. The training program is implemented by RiskMonitor Foundation under the project “Rule of Law and Organized Crime,” funded by the America for Bulgaria Foundation. The experts of RiskMonitor asked questions, concerning the investigation of organized crime and the civil forfeiture. The interview was conducted by Snezhina Atanassova.
It is published with the cooperation of "Teza" Magazine.

Full text of the interview in English:

Q: Mr. Livermore, you are a federal prosecutor working on organized crime cases. Tell us more about your department, how many people work in it, how many cases are tried, what is the jurisdiction of your department?

Federal prosecutors work for one of the US attorney’s office in separate districts; there are 93 separate districts, for example in New York, Philadelphia, Boston, LA. There is a small group of attorneys like myself working in the office of Main Justice (MJ), out of Washington DC. Main Justice is divided into separate sections based on the area of expertise, I am in the Organized Crime section, but there is also a Narcotics Section, a Money Laundering section, fraud section, computer crime section, we have around 19 different sections.

These attorneys support the prosecutors in the field in cities around the US. Let me give an example – one of the cases I am prosecuting now is in North Carolina, which is a small district, with about 25 prosecutors and they have never done a RICO  case before, an anti-organized crime (OC) case. The case is against an OC group called the “Latin Kings,” a street gang. I am working now with the local prosecutors, helping them build the case.

In terms of the number of cases that I am working on, it’s hard to say. I have now about 20 separate cases and that’s a high number; most people at Main Justice have less than five and that allows us to focus on these cases in detail. This is similar to the situation here in Bulgaria, where prosecutors may be assigned 40-50 or more cases and they have less ability to focus on a big case. The heavy workload is a problem in Bulgaria and that’s also a problem in the US.

In my section of MJ we have probably about 20 litigators like myself who go out into the field and we cover the whole country; in addition, we have 5 prosecutors whose job is to review RICO prosecutions. In the US, every RICO indictment has to get reviewed and approved by the MJ office. These prosecutors are experts in RICO law, they don’t travel that much and review all the prosecutions that come in. In addition, we have several prosecutors who focus on labor issues. In the US we have had a long history of organized crime infiltrating our labor unions and that’s one of the things we specialize on. Overall, 30 attorneys including the supervisors are stationed in MJ in Washington.

Q: You mentioned the case in North Carolina, how many people are engaged in the investigation?

I am supported by the local officials; there are 2 prosecutors assigned to this case and there are several FBI agents who do the investigative work, overall 10-12 FBI agents are on the team. When we did the arrests (we had to arrest 8 to 10 people, conduct search warrants), we had about 100 agents that were involved in the operation. The case has now been indicted; we are waiting for a trial date from the court. Most defendants in the US plead guilty so there is not a trial. We have 14 persons who have been charged, at least half will probably plead guilty but it remains to be seen how many people will be tried.

Q: How many of the cases you try conclude with guilty verdicts, what is the percentage of plea bargains, under what conditions do you offer a plea bargain?

I am not aware of any specific statistics for OC cases, but the overall conviction rate is above 95 %. I believe more than 90 % of defendants in federal cases plead guilty. In terms of OC cases I would imagine that the statistics are very similar. In the US, the prosecutor is in charge of the investigation and has complete discretion whether to charge a case or not; we are not going to indict a case unless we know we are going to win. It is simply a matter of trying to make the system as efficient as we can – if we indicted every case that we had, then we would get bogged down. What we want to do is have the most efficient system so the people that are charged will get convicted. That is a management decision that is especially true for the federal system. For the state system, and I was a formerly a state prosecutor, in many instances the state prosecutors are not as intimately involved in the investigation as on the federal level. On the federal level we have more resources to investigate the cases than you do on the state level.

Q: What criteria do you use to qualify a case as an organized crime case?

We don’t have any formal criteria in the US in terms of organized crime cases; in fact my section prosecutes a lot of cases in which we don’t use the official RICO laws. We can prosecute an OC group under any laws - if an OC is involved in drug trafficking, strategically it makes more sense not to charge them with RICO because the punishments for distributing controlled substances are in many respects as powerful, if not even more powerful, than the RICO laws. There are also certain tactical advantages to charging a drug trafficking case as opposed to charging a RICO offence; the RICO cases are hard to try – we have to try the case in front of a jury. Yet, convincing 12 people beyond reasonable doubt is a very difficult thing to do. My theory of prosecution has always been to make it as simple as possible for the jury to understand and accept the case.

So, there is not one standard approach across the US, we have some informal guidelines that we use. In my section, we focus on international crime, dealing with foreign mutual legal assistance treaties, with foreign governments and foreign investigators. In terms of OC cases in general, each district has its own OC program; there is a US attorney at the head of each district with their own guidelines. The approach in Miami is going to be very different from that in Kansas, since they have different problems. New York City for example has done a lot of Russian crime cases; in places like Kansas you are not going to find a lot of international crime groups, but their problem is local gangs. As you get closer to the Mexican border, you are going to see more Mexican gangs, so we try to tailor our approach and be the most efficient, targeting the OC crime groups in that particular context.

The legal framework in the US is very different from the legal framework in Bulgaria; we don’t have the specialized courts like you do here. Our law is very different structurally than your law; the Bulgarian law is much broader than ours. The US organized crime law, which we call RICO, was designed to help prosecutors pull together a number of smaller offenses into one larger offense. For example, the case that I am working on now, this criminal organization in North Carolina, was involved in a series of armed robberies, they were involved in some shootings, in conspiracy to commit arson, a wide mix of different crimes, including drug trafficking. What we were able to do, rather than charge those offenses separately and treat them piecemeal, we were able to pull those into one indictment and hold the gang responsible for the entirety of the criminal conduct.

Q: Is there a Specialized Prosecution or a Specialized Court in the US? If yes, what is the structure of these institutions? If not, has it ever been discussed as an option?

We took a different approach to organized crime than the approach taken by Bulgaria, and there are several reasons for that. In the 1960s the so-called OC strike forces were set up; these were teams of prosecutors and agents that were working together on crime cases. The cases went to the regular court, in front of the same judges, following the same rules of procedure as other cases. The problem was not that the law was inadequate to deal with organized crime but that the prosecutors did not have the time and training to focus on these matters. The Strike Forces allowed prosecutors to focus on these crimes in detail.

It’s very interesting that now the US is going in the opposite direction of Bulgaria. In the late 1990s, these strike forces became wholly integrated into the local US Attorney’s offices, and over the years the distinction between them has continued to be watered down. One of the problems now before the district offices is that their case load is going up and they have less ability to focus on each case. We have forgotten the reasons we’ve created the strike forces in the first place. The US is going into empirical forms of analyzing the prosecutors’ performance, everybody wants to see indictments, prosecutions, convictions and when you are focusing only on a few cases, the statistics don’t look that good. We have struggled with quantifying the importance of different cases, because the indictment for a minor offense is not the same as an indictment for a major offense, yet we get the same credit for doing different cases. Many of the management problems that prosecutors are struggling with here in Bulgaria we are struggling in the US, too.

Q: What special investigation techniques (SITs) do you use in your investigation? How often do you use them?

We always use SITs in organized crime cases, I can not think of an OC case in which SITs were not used. The difference between Bulgaria and the US is that we use certain SITs more and other SITs less; in Bulgaria in virtually every case they do a wiretap, for instance. It is almost pro forma here that you ask for a wiretap. In the US, the rules are very different and we are only allowed to get a wiretap in very narrow instances. On the one hand, we have to have sufficient probable cause that the phone is used to further specific criminal activity, but on the other hand we also must consider the so-called necessity angle, or the necessity component. If we have too much evidence, we don’t need a wiretap to charge and convict the person. When we write a request for a wiretap, it is between 15 and 100 pages long, they are very time consuming, very factually detailed. The requests have to be submitted to a special unit in Washington, DC, the office of Enforcement Operations, where they go through the application with a fine tooth comb and if there is anything wrong, it is returned to the prosecutors. The request must be approved by a US Attorney General Assistant; then we have to give regular reports every 10 or 15 days to the court on the status of the wiretap, why we need to continue to use it, etc.

We use other techniques more often, for example, I don’t need a court order to do surveillance. Also, many of the things you call SITs are not SITs in US; we can do surveillance or use undercover agents without a court order. But there is also danger in doing so: it is difficult for a law enforcement agent to infiltrate a criminal organizations and when they get in, they are expected to commit crimes which is very problematic. However, we use more often what we call “cooperating defendants.” If we catch a low-level criminal who agrees to cooperate with the investigation, we can have him make a phone call to his boss, for example, and order drugs. We will record the call and then will do a controlled purchase. We can do all of that without court order. In addition, we can have cooperating criminals testify before a jury, and we have specific laws to facilitate that. The reason why this is not used in Bulgaria is that there are no such laws and specific structure to regulate that activity.

Q: At what stage of the investigation do you freeze the criminal assets? Do you rely on civil or criminal forfeiture procedures in organized crime cases?

Prosecutors in the US have a lot of tools at their disposal for a successful investigation, we have enormous discretion; unlike here, we can initiate a forfeiture before there is an indictment. In this process we have to balance certain interests, we have to prevent the defendant from learning about this procedure – one disadvantage of civil forfeiture is tipping off the defendant. In a fraud case, if there is a lot of money in a bank stolen from a victim we can seize that money to prevent it from being used. If a case is indicted, we will use forfeiture because we can make the criminal forfeiture part of the criminal proceedings; if a case is not indicted then we decide for a civil forfeiture procedure and it becomes a separate case. The US Attorney’s offices have attorneys who specialize in forfeiture measures and they assist the prosecutor who’s doing the criminal case; in some instances, these attorneys will initiate civil forfeiture procedure apart from the criminal case.

Q: What is the overall amount of the confiscated criminal assets? What happens with that money, how is it managed?

I don’t have any stats on how much money has been seized but surely, the amount is substantial. That money goes into a special forfeiture fund, not in the general treasury fund and is used for specific law enforcement purposes, i.e., putting that money back into future investigations on the state and federal level. The state offices have lower budgets than the federal office and in this way the states can get additional funds to increase their capacity to fight crime.

Asset forfeiture is a very important tool to fight organized crime; as I understand it, in Bulgaria the money goes to the general treasury fund. In the US we have a separate victim witness fund; in every OC case, defendants are required to pay a special fee that goes into that fund - we try to take criminal assets and make them work against crime.

Q: The Bulgarian Parliament is yet to adopt a new law on civil asset forfeiture which will allow non-conviction based forfeiture. What are the procedures for civil asset forfeiture in the US? Do you have to prove the predicate crime?

The laws in the US are very different from the laws in Bulgaria. In the US we have civil forfeiture proceedings which are separate from a criminal case, they stand alone like any other civil law suit, and it’s not required that there be a criminal prosecution. In addition, the burden of proof in civil cases is less than the burden of proof in criminal cases; in the latter, we have to prove the crime beyond reasonable doubt, and in civil cases we only have to show a preponderance of the evidence, that it is more likely than not that these funds are criminal proceeds. This gives us flexibility in civil cases in instances where the proof may not rise to the level beyond reasonable doubt. In criminal cases defendants have a right to trial by jury, in civil cases it is decided by a judge and that allows us to proceed more expeditiously.

I have no problem with civil forfeiture being independent from the criminal case and it is important to have the flexibility to freeze assets before the criminal case starts, also because a criminal case takes a long time and the money may not be there at a later stage. I cannot comment on the Bulgarian law but I do support civil forfeiture and separating civil and criminal forfeiture.

In the US, there is no threshold required to begin a forfeiture procedure, but there is a practical threshold – it would not be wise to go ahead and start a procedure for a 1000 dollars. Again, prosecutors in the US have the discretion to proceed or not depending on the circumstances. In Bulgaria, prosecutors are obligated to act. I understand the idea to have a certain threshold because it makes practical sense and reflects the context of the Bulgarian judicial system.

Q: Yesterday was the first lecture of the training program for the Bulgarian prosecutors, on the topic “Follow the money: how to investigate organized crime groups.” What recommendations did you give to your Bulgarian colleagues for successful investigations?

What we talked about was specific cases in the US and how we dealt with the problem. I am not an expert on Bulgarian law so it is hard to give advice, but what we’d like to do is to expose them to different strategies and techniques so they can decide how to apply them in the local context. I tried to make the training as practical as I possibly can, discussing specific techniques that I have used, sharing experience, etc. There are many types of crimes in Bulgaria that are more prevalent than in the US, for instance, we are seeing an increase in credit card skimmers and debit card skimmers. Bulgarian prosecutors have dealt with these for a long time, whereas in the US it is relatively recent, and this type of exchanges can be beneficial for both sides. I am learning as much as I am sharing.

Q: This is not your first visit to Bulgaria. Do you see any progress in combating organized crime in Bulgaria? What are the weak sides of the judiciary? What are the three most important things that Bulgaria has to do to improve the effectiveness in the combat of organized crime?

I do see significant changes in the last few years; I think the Specialized Court will be a very important development because of the ability of prosecutors to focus on organized crime cases, and you are definitely going to see much better results. In terms of improvement, there are a number of things I can say, for instance, the specialized court needs additional staff to join, to relieve the heavy workload. Secondly, comparing the investigative techniques used in Bulgaria and in the US, as I mentioned, we use cooperating defendants much more often than they do here. The Bulgarian criminal justice system does a very good job prosecuting the lower end of the criminals but the system struggles when it tries to prosecute the higher levels - those who order the crimes. Minor adjustments in the legislation may be necessary to facilitate the use of testimonies of criminals in court cases and that will allow the prosecutors to move up the ladder of the criminal organizations. Thirdly, asset forfeiture – I don’t think you can have an effective anti-organized crime strategy without an effective asset forfeiture program; the legislation is pending and hopefully we will see some results.

Q: Final question: last year, RiskMonitor Foundation organized an international conference dedicated to theoretical and policy issues related to the notion of “organized crime.” Many of the speakers argued that this is a policy metaphor that is destined to die away and be replaced by another concept. Do you agree with this statement?

The main issue is how you define organized crime; yes, there are organized crime groups and under the old ways, we used to try and attack the group – thinking of the group as a tree – we used to try and cut the tree by trying to pull the leaves. But this is not an efficient way to tackle the problem. Our law allows us to attack the whole tree, to go for the trunk and capture the group as a whole – that’s the so-called Enterprise Theory of prosecution. This theory is the most important and the best strategy if you need to attack the organized crime group as a whole. The legal framework and how it is implemented will reflect the overall legal culture of the particular country. For instance, we make extensive use of cooperating defendants but in many countries in the EU this practice is outlawed because those techniques are not culturally accepted. Your purpose should be to find a strategy that works for you here, given the culture, given the legal system.

I wish your country success in your efforts to fight organized crime!

Interviewer: Snezhina Atanassova, RiskMonitor Foundation

The publication in Bulgarian.

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