Enterprise Theory of Investigation.

Although the media frequently focuses on the conviction of the leaders of major criminal enterprises, such as the Gambino crime family, the Colombian Cali Cartel, or the Sicilian Mafia, dozens of lesser-known individuals belonging to the same criminal organization also often receive long prison sentences. Those who escaped prosecution or served their sentence may return to find the criminal enterprise to which they once belonged extinct due to a powerful tool in the law enforcement arsenal-the Enterprise Theory of Investigation (ETI).

The ETI has become the standard investigative model that the FBI employs in conducting investigations against major criminal organizations. The successful prosecutions of major crime bosses serve as direct testaments to the benefits of this model. Unlike traditional investigative theory, which relies on law enforcement's ability to react to a previously committed crime, the ETI encourages a proactive attack on the structure of the criminal enterprise. Rather than viewing criminal acts as isolated crimes, the ETI attempts to show that individuals commit crimes in furtherance of the criminal enterprise itself In other words, individuals commit criminal acts solely to benefit their criminal enterprise. By applying the ETI with favorable state and federal legislation, law enforcement can target and dismantle entire criminal enterprises in one criminal indictment.

Applying the ETI

By restructuring both their investigative resources and theory, many law enforcement agencies can use this model. Initially, some police agencies may hold a skeptical view of the use of the ETI because its application requires an increased time commitment, which may affect case-closure rates and also because they may perceive the ETI as more complex than traditional investigative models. However, the advantages of the ETI easily outweigh these presumed disadvantages, primarily because the ETI provides a highly effective method of targeting and dismantling criminal enterprises.

To recognize the value of the ETI, investigators must accept several main premises. First, while some major organized criminal groups commit crimes to support idealistic views, financial profit remains the underlying motive for most criminal enterprises.

Next, major organized criminal groups typically engage in a broad range of criminal activities to achieve this profit goal. While the nexus of these violations may be closely interrelated (e.g., drug trafficking and money laundering), major criminal enterprises historically rely on numerous criminal acts to support their existence and often divide the responsibility for committing these acts among their members and crews. The ETI capitalizes on this diversity by analyzing the enterprise's full range of criminal activities, determining which components allow the criminal enterprise to operate and exploiting identified vulnerable areas within each component. For instance, to accomplish their profit objectives, major drug trafficking organizations must establish four separate subsystems within their organization--narcotics transportation and distribution, financial, and communication. The ETI identifies and then targets each of these areas simultaneously, especially those components viewed as the most vulnerabl e. The more diverse the criminal enterprise, the more potential for exploitation due to the existence of these types of subsystems.

A final premise of the ETI maintains that major organized criminal groups have a pyramidal hierarchy structure where the lower levels, consisting of more people, conduct the majority of the enterprise's criminal activities. Therefore, working a case "up the chain" proves beneficial because it starts the investigation at the level where most investigative opportunities exist.

Defining an Enterprise

What defines a criminal enterprise? Do two bank robbers committing serial robberies fall within the definition? How about employees of a government contractor engaged in systematic bid-rigging? Although these criminal groups might have a loose-knit organizational structure, application of the ETI probably would not prove beneficial in these instances.

The FBI defines a criminal organization as a group of individuals with an identified hierarchy engaged in significant criminal activity. These organizations often engage in a broad range of criminal activities and have extensive supporting networks. Generally, the ETI only proves effective when the organization engages in a myriad of criminal activities. In the case of the bank robbers, federal and state robbery laws sufficiently address this group's single-purpose criminal activity. However, if the bank robbers begin to diversify by stealing cars and guns to support their robberies, the ETI now offers advantages that traditional methods of investigation do not. The ETI supports the notion that the gang's new found diversity allows law enforcement more investigative opportunities by exploiting the most vulnerable area of their criminal activities. For example, introducing an undercover officer into a close-knit gang to obtain their robbery preparations may be practical. However, if the gang advances to crimi nal violations that require assistance from someone outside the gang, a department could expand its investigative opportunities and use an undercover officer to provide stolen vehicles.

Most state and federal general conspiracy laws define a criminal conspiracy as two or more individuals. The federal Continuing Criminal Enterprise statute, [1] applicable to major drug conspiracies, requires that the individual charged led five or more individuals while the federal Racketeering Influenced Corrupt Organizations (RICO) statute requires only two or more individuals to comprise a criminal enterprise. [2] Law enforcement managers must decide which statutes to use when they form the investigative strategy to direct the evidence collection toward meeting the legal requirements of each statute. This type of advance decision making supports the proactive nature of the ETI.

Using the criminal statutes as guidance, the investigation should focus continually on an essential part of the indictment--proving who belongs to the criminal enterprise. Obviously, law enforcement can use traditional investigative techniques, such as physical surveillance, to show criminal associations. However, the act of showing criminal associations does not necessarily involve proactive evidence collection against the subjects and often uses historical information to prove this element.

Determining the Scope of the Enterprise's Criminal Activities

Once investigators confidently believe that an enterprise does exist, the next step involves determining the scope of its illicit activities. This step proves important because it will help define the investigative strategy.

Investigators always treasure any new intelligence regarding an enterprise's current activities; however, investigations can still progress with older information. For example, a review of past investigations, prosecutions, and criminal histories of suspected members, and even open-source information (e.g., newspaper accounts) can assist in this process. The task force concept allows instant multiagency searches of historical records and indices. In fact, during this stage, agencies can piece together information that they might have, but just could not link to the actions of a criminal enterprise.

While larger police agencies often use highly trained and specialized analytical support teams to assist with case analysis, those police agencies without this resource should not skip this important step. Investigators can create simple time lines that chart significant historical events based on previous intelligence. In doing so, they can help reveal patterns of criminal activity and possibly predict future trends. [3] The investigative strategy that managers develop should anticipate the steps needed to counter these future trends, which remains the essence of the proactive nature of the ETI.

While traditional investigative theory targets individual criminals, the ETI can show they commit seemingly isolated crimes to benefit an entire criminal enterprise. The selection of favorable legislation, from simple state conspiracy laws to the more complex federal racketeering laws, will round out the investigative strategy by focusing the prosecution not only on the individual committing a crime but the leaders who order or benefit from it.

Developing an Investigative Strategy

Both historical and real-time evaluation helps form the investigative strategy. Because investigators should base this strategy on perceived weaknesses within the enterprise, they must conduct a thorough evaluation of the enterprise's activities. The investigators should obtain enough information to analyze to gain a basic understanding of the extent of the enterprise's criminal activities. Investigators should examine the full range of these illicit activities, separate them into components, and draw an investigative strategy that attacks each component separately, yet simultaneously.

For example, a large and sophisticated burglary ring must have some form of each of the following components in place: methods of theft, resale of the stolen goods, and concealment of their illicit proceeds. Police can use a surveillance team to try to catch the actual burglars and, at the same time, use undercover officers to pose as a "fence" against the ring's efforts to resell the stolen property. A financial investigator could track purchases and asset acquisition of each individual. As the case progresses, investigators can shift additional resources to the enterprise's most vulnerable areas. Because the ETI ultimately attempts to indict and convict all the members of an enterprise, especially within the leadership ranks, the investigative strategy needs to address how each investigative method will advance the investigation "up the chain." At this point, the use of innovative and more sophisticated investigative techniques becomes invaluable because proving a case against the leader of a major crimina l organization typically is more difficult than convicting a "player" of the organization. For example, deferring prosecution of low-level burglars in favor of cooperation or a court-authorized wiretap of the ring leader's telephone might support a hierarchical attack on the enterprise.

Additionally, financial profit remains one of the main goals of most criminal enterprises. Virtually every major criminal organization uses a system to reward its members through monetary means. Oftentimes, successfully dismantling an organization relies solely on the ability of law enforcement to disrupt this financial component. Removal of a criminal enterprise's financial base usually disables the organization to a point where they cannot recover. This occurs because even the lowest members of the organization require prompt payment for their actions. Removing the ability of an enterprise to make payments generally takes away the incentive for those doing the work to continue. Although the enterprise can fill some positions of those incarcerated members through upward attrition, only a few trusted members of a criminal organization generally handle methods of dividing, shielding, and accounting for the profits. Successfully incarcerating those in such a position of trust can result in large voids within t he criminal organization. By creating chaos and uncertainty within the financial component of the enterprise, members quickly look elsewhere for "employment" and financial rewards.

Attacking the flow of money has become the norm in major federal organized crime and drug trafficking investigations. Strategic use of asset forfeiture and money laundering statutes removes not only the illegal proceeds (e.g., cars, houses, and jewelry), but, more important, it disables the systems that the enterprise has put into place to accomplish its profit goal. Some examples include fraudulent bank accounts used to shield illicit income and property used to facilitate the criminal activity, such as "legitimate" businesses.

The plan should remain aggressive, yet workable. For instance, case managers may not include targeting the head of the criminal enterprise in the initial plan, but the investigative strategy should define the steps on how to achieve this objective.

Investigators should interface with prosecutors as early as possible in the case. Because the investigative strategy essentially remains a start-to-finish blueprint for the case, investigators must know from the outset which elements of the criminal statutes they must prove and then tailor the investigative plan accordingly.

Finally, case managers should postpone any actions that might expose the scope of the investigation until completion of the covert phase. This remains important because opportunities to arrest subjects increase as the case proceeds, which may conflict with those departments that gauge their effectiveness on raw arrest data and, therefore, might not delay arresting individuals once sufficient evidence exists.

Using a Task Force

The use of a joint task force remains a necessity in the successful application of the ETI. Any law enforcement officer who ever served on a multiagency task force recognizes the strength that combined resources provide in achieving objectives. Immediate benefits include additional staff, access to more technical and investigative equipment (e.g., different sets of surveillance vehicles), and the pooling of financial resources for items, such as payment of informants and purchase of evidence. Another major advantage that directly supports the ETI model is that different police agencies bring the potential to expand jurisdiction and expertise into all of the areas that a criminal enterprise engages. For example, while virtually every state and local police agency has counterdrug enforcement as part of its mission, very few of these agencies employ a criminal tax investigator who specializes in tracking international money transfers. Thus, getting an Internal Revenue Service special agent involved in the inves tigation not only adds another individual to assist with general investigations, but adds an individual who can provide an area of expertise that the task force might otherwise lack.

Many federal task forces employ a wide range of individuals, including nonsworn personnel, with specialized skills not usually found in the law enforcement realm. Departments can retain bank examiners, accountants, and securities experts as either consultants or as an actual member of the task force. Many federal agencies invest considerable effort in developing a class of nonsworn professionals, ranging from investigative assistants to more specialized positions that employ an expertise in areas not typically found in the realm of sworn personnel (e.g., link analysis, chart preparations, and legal research).

Because police agencies have differing missions and methods of measuring success, the most important part of the task force formation involves complete agreement by the participating agencies regarding the objectives and goals of the investigation and what rules the task force will follow. Additionally, the participating agencies should complete a memorandum of understanding that addresses questions, such as the following:

* Which agency will maintain responsibility for the overall investigation?

* Are the lead agency's rules acceptable to the other participating agencies?

* Will the case be prosecuted in the state or federal courts?

* Will each participating agency use their own forms or will the task force adopt one standard format for investigative reports?

* Who will maintain seized evidence?

* Will each agency agree to delay arrests and seizures if it may jeopardize the investigation?

* How much funding (including overtime) will each agency contribute to the investigation?

* Whose procurement rules will the task force follow to acquire equipment and supplies?

* Will each agency accept liability for the actions of their assigned personnel?

* Will the state investigators need to be deputized or vice versa?

* Will the agencies divide the forfeiture share equally, regardless of the level of participation (e.g., one part-time officer versus three full-time officers)?

Implementing an Attack

In this stage, task force members follow the previously developed investigative strategy and merge traditional methods of evidence collection with investigative methods developed specifically to attack the identified component of the criminal enterprise. This often involves the largest commitment of personnel, time, and resources. Task force supervisors should consider assignments depending on the outline of the investigative strategy and the areas within the enterprise that remain vulnerable for exploitation, along with the area of each officer's expertise and experience. Investigators should use both traditional and sophisticated investigative techniques to receive optimal results. However, regardless of the original plan, the task force must adapt and shift investigatory resources as the case develops. For example, if the task force obtains a wire tap order to penetrate a criminal enterprise's methods of communications, case managers must consider temporarily reassigning peronnel to meet the high resource requirements of operating wire taps.

Careful coordination with prosecutors as the case develops ensures that all members of the criminal enterprise receive indictments and that the enterprise's established criminal subsystems become permanently dismantled.

Conclusion

Oftentimes, larger criminal enterprises prove problematic for agencies to dissolve using traditional investigative methods. However, with the enterprise theory of investigation, the larger the enterprise and the more diverse its illegal activities, the more investigative opportunities it provides for law enforcement.

Because the use of conspiracy or criminal enterprise statutes form the baseline from which agencies develop their investigative strategies, the ETI requires that departments expand the traditional models of evidence collection. While these traditional models generally only attempt to identify individuals and the crimes they commit, the ETI requires that investigators broaden evidence collection to show that an individual conducted the criminal activity to benefit the enterprise as a whole. By using favorable statutes along with a carefully laid out, multipronged attack on each established component that a criminal enterprise uses to conduct its illegal business, investigators can expand criminal culpability for a single criminal act to all members of the enterprise, regardless of whether they actually committed the crime.

Endnotes

(1.) 18 U.S.C. [sections] 1961 et. seq.

(2.) 21 U.S.C. [sections] 848.

(3.) For additional information on the use of time lines in investigations, see Craig Meyer and Gary Morgan, "Investigative Uses of Computers: Analytical Time Lines," FBI Law Enforcement Bulletin, August 2000, 1-5.

Showing criminal associations does not necessarily involve proactive evidence collection against the subjects and often uses historical information to prove this element. Consider the following successful examples that focus on the members of criminal enterprises:

* A recent FBI investigation initially used gang graffiti to not only determine membership in the gang (enterprise), but to show its area of influence. Investigators also can use gang colors, clothing, and hand signals in this manner.

* Agencies can use intercepted telephone conversations, call-detail records, and pen registers to show associations.

* Officers executing warrants or processing prisoners should not overlook the more mundane collection of documentary evidence that can prove useful in showing associations. Some examples could include pagers and cellular telephones with stored numbers, or address books or scraps of paper with names and telephone numbers. Standard post-seizure practice should involve electronically capturing this type of information for later link analysis.

* Officers should include accomplice information when compiling a subject's biographical file, such as other individuals arrested and the location of the subjects (i.e., whose house or car) when the arrest took place. This information proves valuable in showing past criminal relationships.

An Example of the Enterprise Theory of Investigation

In a city plagued with chronic drive-by shootings, traditional investigative methods may focus on each shooting as an isolated incident. However, a task force suspecting gang involvement can develop a time line that shows that each time a member of a street gang was incarcerated, an increase in shootings against rival gang members occurred. Using this analysis and adopting an enterprise investigative theory, the task force can gather "traditional" evidence against the individual shooters and focus on developing evidence that shows the shootings as more than just random acts. At trial, the prosecutors can use the investigative efforts to show that gang leaders ordered the shootings to defend a perceived gap in their turf as a result of the incarceration factor and, therefore, prosecute not only the shooters but the gang leaders as well.