Investigative planning: creating a strong foundation for white-collar crime cases.

Few individuals would feel comfortable constructing a building without blueprints or plans. This holds particularly true when the structure is complex, will take years to construct, and will be expected to stand the test of time. Construction experts know that without thorough planning, they may miss or unnecessarily repeat important steps.

Ironically, many law enforcement officers have no qualms about hastily building cases with little or no planning, expecting their investigations to weather attacks by defense counsels and survive years of appellate review. And, given their complexity, white-collar crime cases especially require thorough, documented investigative plans.

THE NEED FOR AN INVESTIGATIVE PLAN

Consider the following scenarios:

A detective receives an embezzlement allegation from a company's officers. He promptly submits suspected checks for analysis. Over the next 2 years, he directs his efforts only at getting the suspect to take a polygraph and interviewing the suspect's boyfriend, who is rumored to have received money from the suspect. The statute of limitations finally tolls on the crime.

Another detective has spent 6 months investigating an insurance fraud case. She has interviewed hundreds of victims of an unscrupulous insurance agent. She has written up many of the interviews, while others remain in dictation, and still others only exist as her rough notes. Unexpectedly, she dies, and the case gets assigned to another detective. Before proceeding, the new detective first must determine what records still need to be examined and who needs to be interviewed. The investigation is delayed several months during this transition period.

A third detective investigates a kickback case. For 3 months, he interviews witnesses and examines financial records. He writes a final report and refers the matter for prosecution. He subsequently receives a call from the prosecuting attorney, who notes that witness interviews and financial records examined do not fully substantiate the major offense cited in the report. The detective must reinterview all witnesses regarding the unsubstantiated issues.

Had these fictional detectives devised written investigative plans, many of these problems could have been minimized, if not eliminated entirely. Documented plans provide a frame of reference for the investigation to ensure that all aspects of the crime are covered in a timely manner. Specifically, a properly formulated plan

* focuses the investigative process to ensure that all offense elements are addressed;

* limits unnecessary procedures and step duplication;

* coordinates the investigative activities of numerous personnel on large cases;

* provides stability to the investigation if staff changes occur;

* enhances communication with prosecuting officials by providing an outline of the investigation and identifying strengths and weaknesses in the case;

* provides a framework for the final report; and

* becomes a training aid for inexperienced staff members.

It takes no special skill to create and follow an investigative plan; rather, investigators must have a working knowledge of the statutory elements of the crimes under their agency's purview; any special penalty enhancements for certain offenders, offenses, or victimizations; and basic investigative techniques. Investigators must keep the plan objective and not reflect that they already have established the suspect's guilt.

COMPONENTS OF AN INVESTIGATIVE PLAN

A written investigative plan contains four basic components. These are the predication, elements to prove, preliminary steps, and investigative steps.

Predication

An investigative plan must include a predication, or brief statement justifying why the case initially was opened. Predications have three features: the basic allegation, the source of the allegation, and the date the allegation was received. For example, after receiving an embezzlement allegation, the investigator might write this predication: "On June 1, 1998, received information from ABC Union Auditor Jane Smith that she discovered that former bookkeeper Tom Roberts had written $20,000 in unauthorized checks to himself during 1997."

In short, predications clearly identify what particular offense(s) may have been committed. This initial step gives investigators a foothold for the elements they must prove in order to establish that a criminal act has occurred.

Elements to Prove

The plan must reflect all of the elements that the investigator needs to prove for the case to be prosecuted successfully. This component must clearly reflect what is needed to establish a criminal violation, thus focusing the investigation and providing a framework for the steps that follow. At a minimum, this component should contain all of the statutory elements and any special jurisdictional issues, such as venue and statutes of limitations. Special penalty enhancements represent another area that this component might include, particularly for federal offenses.

The following example illustrates the possible elements to prove for a federal investigation of union embezzlement.(2)

1) The victim was a labor organization as defined by the Labor Management Reporting and Disclosure Act of 1959 (as amended).

2) The suspects were officers or employees of the labor organization.

3) The suspects unlawfully took funds or assets belonging to the victim.

4) The suspects converted the assets or funds taken to their own, or someone else's, personal use.

5) The violation was willful.

6) The violation occurred within the last 5 years.

The plan must clearly reflect the issues that must be proven but remain fluid enough to change if the investigation leads in another direction. Thus, any modification to the initial plan should not be a major overhaul but merely should represent a refinement as the investigation develops.

For cases involving multiple violations, investigators should outline only the most serious offenses and refer to the others as violations that also may be considered during the investigation. In any case, delineating the elements to prove and other important issues, such as sentencing enhancements, helps investigators identify the steps they need to take to complete the investigation. These steps encompass two types: preliminary and investigative.

Preliminary Steps

Preliminary steps represent the methods the investigator will employ to obtain basic background information on the victim, the complainant, and the suspects. These include such procedures as reviewing files on prior allegations or investigations; conducting an in-depth interview of the complainant; obtaining and reviewing public records, such as incorporation papers or financial reports filed with government agencies; and conducting a criminal background check of pertinent parties. Typically, step completion under this component does not require a great expenditure of time or personnel.

Investigative Steps

The investigative plan also must include the steps necessary to resolve the issues and complete the investigation. These investigative steps lay out the general parameters needed to establish that a crime has occurred and include who will be interviewed and what records will be obtained and examined. Investigative steps should parallel the elements that need to be proven. For example, in an embezzlement case, the investigator would need to examine bank records and interview bank tellers to prove that the suspect converted agency funds to personal use. For other investigations, a partial list of applicable steps includes interviewing victims; serving subpoenas; obtaining and serving search warrants; gaining access to financial records; examining records; identifying and interviewing key witnesses; obtaining exemplars; forwarding questionable documents for analysis; identifying and interviewing suspects; briefing prosecuting officials; and preparing a final report.

In large cases involving multiple investigators, individual steps could be assigned to specific individuals, who become responsible for their completion. In addition, when investigators need to interview numerous witnesses, they can compile an itemized list, keep it separate from the investigative plan, and merely refer to the list in the plan. Specifically, the investigative step would read "identify and interview key witnesses (see list)." As a general rule, the plan lists the steps to be completed in generic terms without including such specifics as names. However, the investigator could modify the plan later to incorporate such information.

HELPFUL HINTS

Investigators should seriously consider keeping copies of investigative plans on computer. Once they develop a plan for a particular case, they can continue to use it as a model, or boilerplate, for similar cases. Good boilerplate plans greatly reduce the initial time needed to develop new plans for offenses investigated frequently. Storing the plan on computer also allows investigators to easily note when they complete or modify steps or procedures.

Still, a hard copy of the plan should remain in the case file. By consulting the plan on a periodic basis, the case officer keeps the investigation on the right track. As important, anyone reviewing the file can determine the status of the investigation.

CONCLUSION

The word "routine" is fast disappearing from the law enforcement lexicon. Even investigations that once seemed simple are growing increasingly complex, especially in the area of white-collar crime.

Without a frame of reference, investigators may find themselves becoming overwhelmed by these often-complicated investigations. Documented plans focus an investigation from the start while providing a blueprint for investigators to follow. Using written plans, law enforcement officers provide a firm foundation for the investigation and prosecution of white-collar offenders.

An Investigative Plan -

* focuses the investigative process to ensure that all offense elements are addressed;

* limits unnecessary procedures and step duplication;

* coordinates the investigative activities of numerous personnel on large cases;

* provides stability to the investigation if staff changes occur;

* enhances communication with prosecuting officials by providing an outline of the investigation and identifying strengths and weaknesses in the case;

* provides a framework for the final report; and

* becomes a training aid for inexperienced staff members.

Endnotes

1 Felony sentencing in the federal system is governed to a large extent by the U.S. Sentencing Guidelines. Each offense has a base offense level assigned to it, with points being added or subtracted for aggravating or mitigating circumstances present in the offense conduct. For example, pursuant to section 3B1.3, two points are added to the base offense level for offenders who violate a position of trust during the commission of their crimes. The higher the offense level, the more severe the penalty the individual faces. The second part of the equation factors in criminal history. Also, the more points assigned for criminal history, the harsher the penalty.

2 Union embezzlement violates 29 U.S.C. [section] 501(c).

Mr. Arthur L. Bowker is a U.S. probation officer for the Northern District of Ohio in Cleveland.