U.S. Marshals Service depiction of witness protection

Courtesy United States Marshals Service

Introduction to How Witness Protection Works

Philip Tolomeo was a loan collector for a dangerous organized crime gang known as the Calabrese crew in Chicago from 1978 to 1988. When Tolomeo fell o­ut of favor with Frank Calabrese, he fled Chicago, but not before embezzling money from the crew. He also took comprehensive records detailing the gang's illegal loan-collection activities. Tolomeo would later enter the Witness Security Program and provide the records to the FBI. His testimony led to the conviction of two members of the Calabrese crew.

The Federal Witness Security Program is intended for crucial witnesses, like Tolomeo, whose prospective testimony puts them in immediate danger. Since its inception in 1970, more than 7,500 witnesses and more than 9,500 witness family members have entered the program and have been protected, relocated and given new identities by the U.S. Marshals Service.

In this article, we'll look at how the U.S. Department of Justice erases the old identities of important witnesses and places them in a city where they are not likely to be recognized, with new names and new lives. ­

U.S. Marshals Service seal

Courtesy U.S. Department of Justice

Who's Eligible?

­Witness protection is provided only for witnesses whose testimony is determined to be essential to the successful prosecution of a criminal case and in which the witness's life or the life of his family is at risk. The witness's testimony also must be considered credible an­d certain in coming, meaning that the witness isn't going to back out of giving that testimony in c­ourt.

Three organizations manage the Witness Security Program:

  • United States Marshals Service provides security, health, safety of non-incarcerated program participants
  • U.S. Department of Justice: Office of Enforcement Operations (OEO) - authorizes the admission into the program of witnesses whose lives are in danger as a result of their testimony against drug traffickers, terrorists, organized crime members or other major criminals
  • Federal Bureau of Prisons (BOP) - maintains custody of incarcerated witnesses

­The U.S. Attorney General's office, which has final word on all witness protection cases, has defined specific cases in which witnesses may be gr­anted entry into the Witness Security program, including:

  • Any offense defined in Title 18, United States Code, Section 1961(1), which covers organized crime and racketeering
  • Any drug trafficking offense described in Title 21, United States Code
  • Any other serious, Federal felony for which a witness may provide testimony that may subject the witness to retaliation by violence or threats of violence
  • Any State offense that is similar in nature to those set forth above
  • Certain civil and administrative proceedings in which testimony given by a witness may place the safety of that witness in jeopardy

­In the next section, we'll look at the steps involved in placing a witness into the Witness Security Program.

Prisoner Witnesses

Some witnesses who are already in state or federal prison may also eligible for the Witness Security Program if they meet the criteria of the program. In addition to the other conditions of the program, prisoner witnesses are required to take a polygraph test. Entry into the program can be denied depending on the results of the polygraph test. Incarcerated witnesses are managed by the U.S. Federal Bureau of Prisons and often will be transferred to a new prison once in the program to serve the remainder of their sentence. Once out, their case will be re-evaluated to determine if they need to be relocated to a safe city.

Weighing the Risks

The process for enrolling a witness into the program b­egins when a state or federal law enforcement agency submits a request for protection. A Witness Security Program application is then submitted to the OEO; this application summaries the testimony to be provided, the threat to the witness and any risk the witness may pose to a new community if relocated.

The OEO then arranges for a preliminary interview with the Marshals Service so the witness ca­n find out what to expect from his or her new life in the program. The Marshals Service coordinates the interview directly with the prosecutor or requesting law enforcement agency, which must provide a copy of the application and threat assessment to the Marshals Service. Following the preliminary interview, the Marshals Service makes its recommendation as to whether the prospective witness should be placed in the Witness Security Program. Its recommendation goes to the OEO.

The final authority to enroll a witness into the program belongs to the U.S. Attorney General. The authority of the Attorney General was established as part of the Organized Crime Control Act of 1970 and extended by The Witness Security Reform Act of 1984. Considering recommendations of the Marshals Service and the prosecuting attorneys, the Attorney General (or a person delegated by the Attorney General) creates a written assessment of the risk the witness and his family members might pose to their new community, as many of these witnesses are often criminals themselves. The Attorney General evaluates the following factors regarding each adult considered for protection:

  • Criminal records
  • Alternatives to witness protection
  • Testimony from other potential witnesses

­If the value of the witness's testimony outweighs the danger to the new community, the Attorney General can place the witness in the Witness Security Program. The OEO then advises the requesting agency's headquarters of the Attorney General's decision, and the witness and family members must sign a Memorandum of Understanding, verifying they understand the rules of the program.

Entry into the program is only the first step to anonymity. In the next section, you will learn how the Marshals Service creates new identities and finds a new city for protected witnesses. ­

Financial Obligations

Entering the Witness Security Program is not like winning the lottery. There is no forgiveness of loans or other obligations. Before entering the program, witnesses must first pay any existing debts and satisfy any outstanding criminal or civil obligations. They also must provide appropriate child custody documents proving that their kids are indeed theirs.

Post 9-11 Changes

Witness security is open to more than just witnesses testifying against Mafia members. Today, there is a greater effort to find witnesses who will testify against terrorist organizations that are less organized and more dangerous. This increases the complexity of hiding witnesses, as many of those who can testify against foreign terrorists are in the United States illegally. Foreign-born witnesses require a number of additional documents from the Immigration and Customs Enforcement division of the Department of Homeland Security. Witnesses who are illegal aliens cannot be relocated until the immigration requirements are satisfied and the necessary documents are provided to the OEO or Marshals Service.

Prosecutors must also convince immigration officials not to deport witnesses and to remove those witnesses from terrorist watch lists. Additionally, everyone involved in managing the program must adjust to cultural and language differences.

Falling Off the Face of the Earth

The Witness Security Program is designed to create total anonymity for witnesses and help them blend into a new city where they most likely won't be recognized. The United States has more than 300 million people and thousands of citie­s in which to hide a protected witness. Following the acceptance of a witness into the program, the Marshals Service is tasked with creating a new identity and finding a new city for the witness, his family and any endangered associates. This requires the coordination of multiple government agencies, good timing and total secrecy.

After the witness receives a pre-admittance briefing by Marshals Service personnel and agrees to enter the program, he and his family are immediately removed from their current location and taken to a temporary, secure holding area.

While witnesses are given a fresh start in a new community, their past transgressions are not completely ignored. The Marshals Service often notifies local law enforcement in the new community of the presence of the witness and his criminal history. The Marshals Service also can mandate random drug or alcohol testing and set other conditions to ensure the success of the program. In return, the Marshals Service will:

  • Obtain one reasonable job opportunity for the witness
  • Provide assistance in finding housing
  • Provide subsistence payments on average of $60,000 per year
  • Provide identity documents for witnesses and family members whose names are changed for security purposes
  • Arrange for counseling and advice by psychologists, psychiatrists or social workers when the need has been substantiated

As far as choosing a new name, witnesses can have their pick. However, according to the book WITSEC: Inside the Federal Witness Protection Program, co-written by the program's creator, Gerald Shur, witnesses are advised to keep their current initials or same first name. Name changes are done by the court system just like any name change, but the records are sealed.

Once in the program, the Marshals Service provides 24-hour protection while they are in a high-threat area, including pre-trial proceedings and court appearances. In the next section, we'll look at how the Marshals Service gets witness to and from court without incident.

A protected witness guarded by U.S. Marshals

Photo courtesy www.whitehouse.gov

Testifying

The entire ­purpose of the witness protection program is to keep the witnesses safe so that they can testify at trials that could convict members of organized crime, gangs or terrorist networks. Perhaps the riskiest part of the process is when the witness returns to testify.

A great number of precautions are taken, and security is maximized at this time. In his book, Shur describes bringing witnesses in mail trucks, helicopters and fishing boats. In one instance, an armored car was sent with a full police escort as a decoy while former Mafia member Joseph Barboza was snuck in through a side door of the courthouse. At trial, even witnesses no longer in the program are given protection if they are testifying in cases for which the witness originally entered the program.

Taking such drastic measures to protect witnesses has paid off for prosecutors. Since the program's inception in 1970, it has achieved an overall conviction rate of 89 percent as a result of protected witness testimony, and more than 10,000 criminals have been convicted, according to the Marshals Service.

All requests for a witness's appearance must come through the Marshals Service or OEO with at least 10 days' notice. Prosecutors and law enforcement agents are required to conduct conferences or interviews of relocated witnesses at neutral sites designated by the Marshals Service. For prisoner-witnesses, conferences are conducted at the prisoner's assigned federal prison.

Once the trial is over, it is time for the witness and his family to enter their new life. In the next section, we'll look at how things can change for witnesses once they are relocated. ­

Living the New Life

One of the key objectives of the Witness Security Program is to help witnesses assimilate into their new communities and become self-sufficient. Among o­ther things, this requires assistance with securing employment. However, from the beginning of the program, there has been some concern that the government could be helping witnesses too much. Keep in mind that many witnesses are former criminals themselves.

To ensure witnesses don't get too much of a leg up in their new lives, local law enforcement is informed of a witness's location. Further, protected witnesses are expected to find employment and become self-sufficient as soon as possible. The Marshals Service will assist witnesses with finding employment -- however, if a witness fails to aggressively seek employment, subsistence payments will be terminated. At that point, the relocated witness can enroll in public assistance if he or she chooses.

The most important rule of the program is that witnesses must not make contact with former associates or unprotected family members. They also must not return to the town from which they were relocated. According to the Marshals Service, no witness who has followed these rules has ever been killed. (See Newsweek: The New Face of Witness Protection to read about a case of someone who did not follow the rules.)

Once assimilated into their community, contact with the government is only required once per year. Witnesses also need to make contact with the government if they move. Any other contact with witnesses must be requested through the OEO or Marshals Service.

"WITSEC," by Gerald Shur

Photo courtesy Amazon.com

Breaking the Law in The Program

Witnesses in the Witness Security Program sometimes break the law while in protection. In fact, there is a recidivism rate of about 17 percent among witnesses who have been placed in the pr­ogram, according to a recent Department of Justice study. However, that is a low rate compared to criminals paroled from prison: Only 60 percent of ex-convicts stay out of trouble, according to "WITSEC."

If a witness is arrested and convicted while in custody, the sponsoring federal investigative agency is asked to advise state authorities of the witness's cooperation to ensure the witness's security. If state authorities can't protect the witness, they can advise the OEO, which will review the witness's case and consider reinstatement in the Witness Security Program as a prisoner. Once in prison, the Federal Bureau of Prisons takes over custody.

Victims of crimes committed by protected witnesses can be compensated for certain crimes as part of the Victims Compensation Fund, as provided by U.S. Code Title 18, Section 3525. The fund is administered by the OEO and covers expenses for medical and/or funeral costs and lost wages. ­

Joseph Valachi (left) and Joseph Barboza

Photo courtesy Texas's La Tuna Prison

History of the Program

The Witness Security Program we know today is an evolution of individual cases that began in the early 1960s and were investigated by the Organized Crime and Racketeering Section (OCRS) of the U.S. Department of Justice. This group was l­ed by U.S. Attorney General Robert F. Kennedy and included Gerald Shur, the man who would go on to create the Witness Security Program.

Shur, who was a U.S. Attorney at the time, was involved in several cases in which the federal government protected witnesses who testified against organized crime. Among these witnesses were Joseph Valachi, Joseph Barboza and Larry Gallo.

In 1969, Sen. John L. McClellan of Arkansas introduced a large crime bill. G. Robert Blakely, a member of McClellan's staff, had drafted much of this bill. Blakely took Shur's ideas for a witness protection program and inserted it into the crime bill, according to Shur's book, "WITSEC."

The Witness Security Program was authorized as part of the Organized Crime Control Act of 1970. Within this law was the section Title V: Protected Facilities for Housing Government Witnesses, which outlines the basic tenets of what would become the Witness Security Program. It says that the Attorney General can provide for the protection of witness in "whatever manner deemed most useful under the special circumstances of each case." This law gave the Department of Justice wide latitude to accommodate what attorneys deemed necessary to protect witnesses.

Although the law now provided for a program to protect witnesses, many details of the program and the day-to-day administration still had to be formulated. Shur suggested that the Marshals Service protect, hide and relocate witnesses and fund the program. Soon this program became known as WITSEC, an abbreviation of "witness security."

Nearly 15 years later, the powers of the Attorney General with respect to the Witness Security Program were expanded by the Comprehensive Crime Control Act of 1984. This new Act provided for the protection of certain relatives and associates. The Comprehensive Crime Control Act of 1984 contains regulations and provides general information about the Witness Security Program, setting forth most of the current procedures by which a government attorney may apply for the services of the program in order to protect a witness from dangers that may be related to the witness's testimony.

Today, the Witness Security Program is essential to the prosecution of hundreds of cases. Without it, many witnesses would never come forward or would be killed if they did. With the protection provided by the program, witnesses can testify and then disappear when the trial is over, and the criminals they testify against are almost always convicted.

To learn more about the U.S. Federal Witness Security Program and related topics, check out the links on the next page. ­