ICAC Operational and Investigative Standards

In 1998 the Office of Juvenile Justice and Delinquency Prevention created a national network of state and local law enforcement task forces to investigate cases of child sexual exploitation called the Internet Crimes Against Children  Task Force Program under the authority of the fiscal year (FY) 1998 Justice Appropriations Act, Public Law 105–119. Funding for the program was/is issued in the form of Missing Children's Assistance grants. The statutory authority to issue these grants is Title IV of the Juvenile Justice and Delinquency Prevention Act, 42 U.S.C. § 5775-5777. The ICAC program ran largely unchanged until 2008 and during this time the program was managed under the authority granted to the Office of Juvenile Justice and Delinquency Prevention as an administrative agency via the Administrative Procedures Act.

Early on a need was recognized for uniform investigative standards primarily to ensure a case could be referred across jurisdictions without fear of improper investigative techniques having been used by the referring agency. The OJJDP, the original 10 ICAC task forces and several other federal agencies collaborated to create the ICAC Operational and Investigative Standards. To ensure that the ICAC Standards were complied with, the OJJDP made compliance a condition of grant funding because they had no other authority with which to make compliance mandatory. Program announcements about the ICAC Standards and the process by which they were created was dutifully published in the Federal Register as required by the Administrative Procedures Act. What's most important to recognize about this time period is that the ICAC program itself did not have any statutory authority so there are no statutes directly concerning it nor are there statutes concerning ICAC Standards so any violations of ICAC Standards are essentially useless in a criminal context. This is the exact type of situation covered in United States v. Caceres, 440 US 741 - Supreme Court 1979. The ICAC Standards were not compelled by the Constitution or federal statute but were a voluntary creation of the OJJDP and agencies participating in the ICAC program precisely like the IRS regulations reviewed by the Caceres court and led to decisions like that expressed by the South Carolina Supreme Court in State v. Odom, 676 SE 2d 124 - SC: Supreme Court 2009. Violations of the ICAC Standards along with the signed memorandum of understanding and corresponding grant contract did not warrant the suppression of evidence or the dismissal of any charges. Any possible relief would only be available through an administrative hearing under the Administrative Procedures Act

Luckily for us things changed in 2008 when the U.S. Congress passed the Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children Act of 2008 (the "PROTECT Our Children Act"). The PROTECT Act statutorily authorizes the ICAC Program and is codified  at 42 USC § 17601, et seq with the serious part beginning at 42 USC § 17611 and the most important part from a defense standpoint being 42 USC § 17614 Duties and functions of task forces. 42 USC § 17614(11) compels the Attorney General of the United States to "set forth" national standards regarding the investigation and prosecution of Internet crimes against children and 42 USC § 17614(7) compels participating agencies "to establish or adopt investigative and prosecution standards, consistent with established norms, to which such task force shall comply". In practice virtually all ICAC member agencies adopted the ICAC Standards set forth by the Attorney General. These statutes potentially change everything because now we have the exact opposite situation represented in the Caceres and Odom opinions (Odom's alleged offense occurred in 2006 even though the opinion is from 2009). For this circumstance the Caceres court had this to say:

"A court's duty to enforce an agency regulation is most evident when compliance with the regulation is mandated by the Constitution or federal law"

The Caceres decision modified the use of the Accardi doctrine in criminal cases giving certain conditions that must be met before violation of an agency regulation would be considered in terms of a due process concern or use of the exclusionary rule.

  1. The regulation or guideline in question must be compelled by the Constitution or Federal statute.
  2. The regulation or guideline in question must not concern the day to day or orderly transaction of business. (investigative rather than operational)
  3. A defendant must show he was prejudiced by the failure to comply with the regulation or guideline.

The go to case for the State to try and defeat this defense appears to be US v. Christie, 624 F. 3d 558 - Court of Appeals, 3rd Circuit 2010. ASA Dennis Nicewander, 17th Judicial Circuit Broward County, advises State Attorneys to use this case on pages 22-23 of this document published on his helpful site, http://LocateTheLaw.org

Mr. Christie argued that the investigators failed to comply with the DOJ's guidelines for the use of Confidential Informants during his investigation. The Court noted that the CI Guidelines do not themselves create rights for criminal defendants citing United States v. Henry, 482 F.3d 27, 33 (1st Cir.2007) ("Justice Department guidelines were not compelled by statute, nor intended to create private rights.") and United States v. Caceres, 440 U.S. 741, 751-52, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979) (reversing suppression of evidence obtained in violation of IRS regulations) and concluded Mr. Christie was not entitled to relief.

Again, unlike Christie, Caceres, Henry and Odom ICAC Standards are compelled by federal statute. The Caceres court cited Bridges v. Wixon, 326 US 135 - Supreme Court 1945 as an example of this situation likewise the Henry court cited McNabb v. United States, 318 US 332 - Supreme Court 1943 in a similar fashion. These cases should be used to demonstrate to a judge that ICAC investigations represent an entirely different situation that represented in the Christie opinion.

Putting this information to use:

First you need to identify any violations of ICAC Standards in your case and enter a copy of the ICAC Standards as evidence. There is no need to file a motion to compel production of the ICAC Standards as no court can deny public records as evidence and Clermont, FL has graciously made the current version of the ICAC Standards available via its public records archive. Under Florida law once a record has been made public, it cannot be retracted. For supporting case law see NCAA v. Associated Press, 18 So. 3d 1201 - Fla: Dist. Court of Appeals, 1st Dist. 2009

Second get all of this information to your attorney and make sure he or she knows about the exact line of cases talked about here! This is vitally important for two reasons. 

  1. If you don't enter the ICAC Standards and any violations at the trial level you will not be able to try this argument later on appeal. They must be on record at the trial level first.

  2. Any violation of the ICAC Standards is cause to have any and all grant funding revoked so even if it doesn't help you at the trial level at all it still helps you and everybody else in the long run. The quickest way to stop any government program is to get its funding yanked and the quickest way to do that is to have verifiable violations of the ICAC Standards on the record.

You also need to make sure your attorney realizes that Caceres is in fact a criminal case. There has been hesitation in the past by some attorneys because the Accardi doctrine is a civil doctrine and they assumed Caceres was a civil case. 

Establishing prejudice:

There has also been some hesitation because of the need to demonstrate a defendant was prejudiced by the failure to comply with ICAC Standards. For this we need to look at recent "stash house" sting cases. The stash house stings have been primarily federal cases but the stings have many things in common with Florida sex stings and federal courts are questioning the tactics used and how suspects are discovered. Recently a federal judge in the Central District of California wrote a scathing decision that dismissed the charges against a stash house sting defendant using a "totality of the circumstances" analysis in determining outrageous government conduct developed by the Ninth Circuit in US v. Black, 733 F. 3d 294 - Court of Appeals, 9th Circuit 2013. Prior to US v Black the Ninth Circuit used the analysis in US v. Bonanno, 852 F. 2d 434 - Court of Appeals, 9th Circuit 1988 when evaluating outrageous government conduct and the dissenting judge in US v Black pointed out the change and wondered why because Bonanno is "good law" so we will be looking at both when evaluating a sex sting case. While both analyses are from a federal perspective there is precedent for using them to find outrageous government conduct under state law. State v. Lively, 921 P. 2d 1035 - Wash: Supreme Court 1996 is just such a case and keep in mind the Florida Supreme court has specifically rejected the federal courts’ narrow construction of Due Process violations based upon outrageous government conduct under the due process provision of article I, section 9 of the Florida Constitution. State v. Glosson, 462 So. 2d 1082 - Fla: Supreme Court 1985

The Bonanno Analysis:

The government's conduct is permissible when:

  1. The defendant was already involved in a continuing series of similar crimes, or the charged criminal enterprise was already in progress at the time the government agent became involved.
  2. The agent's participation was not necessary to enable the defendants to continue the criminal activity.
  3. The agent used artifice and stratagem to ferret out criminal activity.
  4. The agent infiltrated a criminal organization.
  5. The agent approached persons already contemplating or engaged in criminal activity 

Obviously number 1 is a complete and total non-issue. No Florida sex sting defendant was already involved in a continuing series of similar crimes or was already in the process of committing a crime when a government agent became involved.

For number 2 the agent's participation was absolutely necessary for the alleged crime to even begin and the agent's participation was necessary to continue the criminal activity that began with contact with the government agent.

Number 3. While an agent can use artifice and stratagem to ferret out criminal activity this presupposes the defendant was engaged in criminal activity in need of detection by law enforcement and we've already established that is not the case in number 1 and number 2.

Like number 1, number 4 is a complete and total non-issue there is no criminal organization to infiltrate. 

Number 5 is dependent on the defendant already contemplating or engaged in criminal activity. Here the state will try to say a defendant must have been contemplating criminal activity when the opportunity for illegal conduct was offered but there is a major problem for the state if they try to do so. An outrageous government conduct analysis focuses solely on the actions of the government and a defendant's predisposition or ready acceptance of the offer is immaterial. Any evidence of predisposition used in an outrageous government conduct analysis must exist prior to and independent of contact with law enforcement.  

Totality of the Circumstances Analysis:

Factors relevant to whether the government's conduct was outrageous:

  1. Known criminal characteristics of the defendants
  2. Individualized suspicion of the defendants
  3. The government's role in creating the crime of conviction
  4. The government's encouragement of the defendants to commit the offense conduct
  5. The nature of the government's participation in the offense conduct
  6. The nature of the crime being pursued and necessity for the actions taken in light of the nature of the criminal enterprise at issue

Similar to the Bonanno analysis number 1 is largely a non-issue. The only caveat here is the handful of defendants that have convictions for previous sex offenses. As of this writing there are only 16 out of 1000 defendants that have convictions for prior sex offenses. There are several more defendants with prior offenses of other types but only similar crimes should be really be relevant here. In any case less than 10% of the defendants have a criminal record of any type.

Number 2. There never has been any individualized suspicion of any of the defendants prior to a sex sting operation taking place. While individualized suspicion is not an absolute constitutional requirement it is an important consideration. In cases where the government did not suspect a particular individual it has been known to target a category of persons believed to be engaged in illegal activity. This means the government will claim people using a given website are a category of people known to engage in illegal activity. Even so law enforcement must develop a reasonable suspicion of individuals prior to making them investigative targets.

For number 3 the government creates the crime. Every facet of it is a complete fiction that exists only in the mind of the ICAC investigators. It is never the defendant that broaches the subject of illegal activity.

Number 4 the government routinely encourages the defendants to commit the crime. The government is the initiator and willing participant and the investigators cajole, insult, coerce, badger and continually set the tone, pace and subject matter of any conversation until they get the responses they want.

For number 5 the government is a fully active participant in the crime. They created the crime, provide a location for illegal activity to occur, encourage the illegal activity and maintain contact until an arrest is made. Nobody participates more in the crime than the government.

Number 6 is where we begin to tie everything together. While the nature of the crime is extremely serious and children are to be protected the necessity for the actions taken is highly questionable when those actions violate federal statutes that pertain only to law enforcement actions during ICAC investigations. While the ICAC Standards do allow for proactive investigations that may not involve a specific target such investigations are to develop a reasonable suspicion that an individual or organization is already engaged in or about to engage in illegal activity creating an investigative interest in the individual or organization. Violations of the ICAC Standards are absolutely not necessary for this process. 

This is where the initial prejudice begins, when law enforcement fails to comply with its own investigative standards as required by federal law during ICAC investigations absent any identifiable necessity to do so. 

Final Steps:

Finally you need to make sure your attorney actually uses all of the information. Trying to use any of the case law here without the ICAC Standards and the corresponding federal statutes is obviously pointless. Trying to use ICAC Standards without the corresponding case law and federal statutes is equally pointless. It's all or nothing with the information here you cannot pick and choose. 

While Florida courts have been slow to recognize the true importance of the ICAC Standards and federal law that is not the case in other jurisdictions. We don't hear about it often simply because these things are properly handled at the trial level and there is no need for an appeal which would lead to an authored opinion but even so we have an example that made the local news in Wisconsin recently. In this case the undercover investigator apparently utilized a photograph of a minor, something that is prohibited the ICAC Standards. As a result the prosecution filed the motion to dismiss the case citing the problem with the photo used and the judge promptly granted the motion. A single violation of the ICAC Standards and the prosecution steps up to get the case dismissed. That's the kind of thing that needs to be happening in Florida.