Parallel Construction- Know the Source of Your Investigation
At Carmichael Ellis & Brock, PLLC, we want to ensure that we know where the investigation against you originated. We will seek information related to the origin of identifying IP addresses in this case, and any attempts to engage in parallel or alternative construction. Parallel construction occurs when the Government learns of criminal activity through one source, but then gives the information to a law enforcement agency to “reconstruct” the investigation so that the origin of that second investigation is different from the original source. Information on parallel construction is potentially exculpatory as it presents a suppression issue should the origin of the investigation stem from questionable intelligence-gathering procedures. Sometimes the government will assert that individual defendants were identified by their IP addresses or anonymous tips. However, even the prosecutors may not know the actual origin of the initial investigation on these individuals.
Reuters recently reported that they review documents showing a secretive U.S. Drug Enforcement Administration (“DEA”) unit has funneled information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans often for crimes unrelated to terrorism or national security. See John Shiffman and Kristina Cooke, U.S. Directs Agents to Cover Up Program Used to Investigate Americans, Reuters (Aug. 15, 2013) http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805. The DEA works with multiple partner agencies, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security to gather and funnel the information on individual Americans to the DEA agents. See id.
Then, federal agents are trained to "recreate" an investigative trail to effectively cover up where the information originated, shielding the true origin from defense counsel, prosecutors, and judges. See id. This “parallel construction” appears to be a common investigative technique. See id. For example, a federal prosecutor in Florida declined to continue prosecuting a case after discovering that his evidence did not originate from an anonymous tip as he had been led to believe, but from an NSA intercept. See id.
This practice of parallel construction, if employed in your case, obstructs the ability of defense counsel to discover potentially exculpatory information stemming from the true origin of the investigation. In fact, a federal court in Chicago recently ordered NSA surveillance procedures to be disclosed to defense counsel after discovering that the true origin of the defendant's investigation was through secret surveillance and a FISA warrant. See United States v. Daoud, No. 12 cr 723, 5 (N.D. Ill., Jan. 29, 2014). In making this finding, the Judge stated,
This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials. The Court finds however that an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding. The adversarial process is the bedrock of effective assistance of counsel protected by the Sixth Amendment. Anders v. California, 386 U.S. 738, 743 (1967). Indeed, though this Court is capable of making such a determination, the adversarial process is integral to safeguarding the rights of all citizens, including those charged with a crime. "The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing." United States v. Cronic, 466 U.S. 648, 656 (1984).
Even if the Government indicates that it is not aware of any alternative construction in your case, the inquiry should not end there. If the parallel construction technique was used, it may not be known to the prosecutor or the agent with whom counsel consulted. Thus, Carmichael Ellis & Brock, PLLC will do everything possible to ensure that a more involved inquiry by the Government is conducted in your case, and will go to the Court to compel such an inquiry, if necessary.
Parallel construction resources:
- Sarah St.Vincent, Dark Side: Secret Origins of Evidence in US Criminal Cases, Human Rights Watch (Jan. 9, 2018)
- Natasha Babazadeh, Concealing Evidence: “Parallel Construction,” Federal Investigations, and the Constitution, 22 Va. J.L. & Tech. 1 (2018)
- FOIA Response Documents
- John Shiffman & Kristina Cooke, Exclusive: U.S. directs agents to cover up program used to investigate Americans, REUTERS (Aug. 5, 2013)
- Adam Bates, Stingray: A New Frontier in Police Surveillance, CATO Institute (Jan. 25, 2017)
- Yomna N, Gotta Catch 'Em All: Understanding How IMSI-Catchers Exploit Cell Networks, Electronic Frontier Foundation (June 28, 2019)