D. Neb. NECrimR 46.3

Defendants under the supervision of the probation and pretrial services office

under an order of this court may not be used as confidential informants, or in a

manner that would violate any release condition, including any "association"

restrictions, without first obtaining an order modifying the release conditions to

allow for the proposed governmental assistance.

(a) Request for Use as Confidential Informant.

The procedure for obtaining an order to permit a defendant's participation

as a confidential informant and any necessary modifications of conditions

of pretrial release follows.

(1) Requesting Agency's Initial Duty.

Before asking the court to approve defendant's use as a confidential

informant and any necessary modifications of the defendant's pretrial

release conditions, a representative of the law enforcement agency

requesting the defendant's assistance must:

(A) conduct an in-depth discussion with the defendant and the

defense attorney concerning:

(i) the anticipated relationship between the defendant and

the federal law enforcement agency;

(ii) the intended targets of the federal agency's

investigation;

(iii) the anticipated manner and operation of the

defendant's assistance in the investigation; and

(B) if time permits, meet with a probation and pretrial services

officer to determine which conditions of pretrial release must

be modified if the defendant is to perform duties as a

confidential informant for the agency.

(2) Presentation and Content.

The agency's request must be presented through the government

and submitted ex parte to the magistrate or district judge assigned to

the case. In case of emergency, any magistrate or district judge in

this district may consider the request for modification. The request

must contain:

(A) an explanation of how the law enforcement agency intends to

use the defendant under pretrial supervision;

(B) the instructions the agency will provide to that defendant for

carrying out the proposed assistance;

(C) the agency's proposed administrative controls over the

defendant and the circumstances the defendant may

encounter in assisting with the government's investigation;

(D) an evaluation of the risk posed to the defendant and the

community by using the defendant as a confidential informant,

the government's plan to ameliorate that risk, and an

explanation of why the potential benefit to the government

outweighs the risk created by the defendant's re-involvement

with criminal associates;

(E) the identity of any targets of the investigation already under

this court's supervision;

(F) the specific time period of the proposed investigation; and

(G) the names of the law enforcement personnel who will oversee

the defendant's work and conduct.

(b) Judicial Review.

(1) Consult with Probation and Pretrial Services.

The judge considering the request must consult with probation and

pretrial services before granting the request unless:

(A) due to time constraints, the judge cannot reasonably obtain

an assessment from probation and pretrial services; or

(B) the court, in its discretion and at the request of the federal law

enforcement agency seeking the defendant's assistance,

decides that (i) the case is extremely sensitive and (ii)

overriding circumstances justify placing the defendant under

the law enforcement agency's supervision and ceasing

probation and pretrial services supervision.

(2) In Camera Review; Sealed Order.

The review of the agency's request must be conducted in camera,

and the order granting or denying the request must be filed under

seal.

(c) Term of Assistance.

(1) Timing.

If the court grants the agency's request, the defendant's services as

a confidential informant may begin when a court order grants the

request and may continue as specified in the court's order for a term

of up to 90 days. Probation and pretrial services must advise the

court 14 days before the end of that term that the defendant's term

as a confidential informant is ending. Absent emergency

circumstances, an extension of the term must (1) be requested in

writing 7 days before the term ends and (2) include an explanation

of why more time is needed.

(2) Emergency.

If an emergency exists requiring use of the confidential informant in

order to protect life or prevent substantial property loss, to apprehend

or identify a fleeing defendant, or to prevent the imminent loss of

evidence before court approval can reasonably be obtained, the

law enforcement agency (A) may, upon notice to the supervising

officer or the officer's supervisor, use the defendant as a confidential

informant for no more than 4 hours and (B) must notify the court as

soon as possible.

(3) Termination of Service; Notice.

When the defendant's services as a confidential informant are

complete, the agency must provide written notice to the court,

probation and pretrial services, and the defendant that the

defendant's services as a confidential informant are terminated. The

defendant must provide a written receipt for the notice.

(d) Supervision of Defendant.

When the court approves a defendant's use as a confidential informant, the

law enforcement agency obtaining the defendant's services must:

(1) with the assistance of probation and pretrial services, advise the

defendant (A) to abide by all pretrial release conditions set by the

court, including modified conditions, and (B) that the defendant may

not participate in any criminal activity without prior court approval;

(2) take all necessary and reasonable precautions to ensure the safety

of the defendant and the community;

(3) during the term of the defendant's service as a confidential informant,

advise the court directly or through probation and pretrial services of

any violations of the defendant's pretrial release conditions, including

any criminal activity; and

(4) inform the probation and pretrial services office when the law

enforcement agency believes any person is or may be in danger due

to the defendant's activities.

(e) Report at Sentencing.

The law enforcement agency that requested the defendant's services as a

confidential informant must, directly or through the government's attorney,

provide a report to the sentencing judge that (1) outlines the extent of the

defendant's cooperation and effectiveness in the investigation and (2)

states whether the defendant received financial remuneration or other

consideration or reward. All reports must remain sealed until it is appropriate

to make the defendant's cooperation known.

(f) Records.

All records identifying the defendant as a confidential informant are

confidential and may only be viewed by the court and probation and pretrial

services officers.