D. Neb. NECrimR 41.2

Applications to intercept wire, oral, or electronic communications under 18 U.S.C.

§ 2518, and related requests are subject to this rule.

(a) Assignment of Judge; General Procedures.

An application for authorization to intercept wire, oral, or electronic

communications under 18 U.S.C. § 2518 and related requests must be

submitted to the chief judge. If the chief judge is unavailable, an application

and related requests may be submitted to the active district judge next

senior in service who is available. A judge is not considered "unavailable"

merely because the judge presides in Lincoln or Omaha and the

government's attorney or the affiant resides or works in another city. Unless

the judge waives the requirement, all applications, supporting affidavits,

proposed orders, and other documents must be provided in draft form for

review by the judge at least 24 hours before the time set for consideration

of the documents. Unless the judge waives the requirement, the

government's attorney and the law enforcement officer who serves as the

affiant must personally appear before the judge at all proceedings related

to the interception. Since consideration of interception applications and

related matters are often conducted in chambers without a deputy clerk, the

government's attorney is responsible for ensuring that all interception

applications, orders, and other related documents and recordings are

properly filed with, or submitted to, the clerk after being presented to or

issued by the judge. Unless otherwise ordered, all interception applications,

orders, and other related documents and recordings presented to or issued

by the judge must be sealed.

(b) Handling of Recordings Upon Expiration of Order.

Unless the issuing judge directs otherwise, recordings of the contents of

any wire, oral, or electronic communication that have been intercepted must

be made available to the issuing judge immediately after the interception

order expires, and the procedures stated below must be followed.

(1) Delivery.

The recordings must be delivered personally to the issuing judge and

the clerk. Thereafter, the clerk must maintain custody of the

recordings. In the presence of the issuing judge and the clerk, the

recordings must be placed in a box or other container, and the box

or other container must be sealed with tape or other sealant. The

clerk must initial the tape or sealant and include the date and

approximate time the box or other container was sealed. In addition,

the clerk must prepare a receipt reflecting the evidence received, and

the receipt must be signed by the clerk receiving the evidence and

the agent delivering the evidence.

(2) Sealing.

While in the clerk's custody, the recordings must be kept in a secure

facility in a manner that protects the recordings from editing or other

alterations.

(c) Disclosure.

(1) In General.

Without relieving the government of its initial responsibility as

described in Nebraska Criminal Rule 41.2(c)(2), the existence and

contents of intercepted communications may be referred to and

discussed in a party's motions and briefs, exhibits offered and

received in evidence, and in judicial opinions.

(2) Government's Initial Responsibility.

If the government intends to disclose the substance of intercepted

communications in briefs, exhibits, motions, or otherwise, it must

comply with Title III of the Omnibus Crime Control and Safe Street

Act of 1968, 18 U.S.C. §§ 2510-2522, particularly 18 U.S.C. § 2517

and 18 U.S.C. § 2518(8)(b), or, in the case of conversations

intercepted under a state court order, the Nebraska equivalent of the

provisions of Title III. Applications for disclosure in a federal

proceeding must be addressed to a federal judge even if the

interception was authorized under state law. If federal and state law

conflict, federal law governs federal court proceedings.

(d) Use at Trial.

Because the use of intercepted communications at trial presents special

problems, the government's attorney must try to stipulate with the opposing

attorney at least 60 days before trial regarding the use of interceptions at

trial. If a stipulation is reached, it must promptly be given to a judge for

review. The judge may approve or reject all or part of the stipulation and

enter appropriate orders. If a stipulation is not reached, then the

government's attorney must file, no later than 50 days before trial, a motion

requesting an order instructing the parties regarding the use of intercepted

communications at trial.