Not long ago, I was listening to BaD Radio, a local sports talk radio program, interview someone who was just released from the federal prison in Seagoville, Texas. He had served time for arson and insurance fraud (he helped his boss burn down the bar he worked in). At one point, he said that he didn’t expect to have a problem finding a job because most employers don’t check federal criminal records. What’s sad is that he’s right.
I believe that if I had to choose a jurisdiction in which I would receive a criminal conviction, it would likely be a federal district court. These court’s records are virtually invisible to most employers who think they are doing a good background check.
At a recent conference, I was visiting with the owner of a well-respected background investigations firm when the subject of federal criminal records came up. “We don’t offer them,” he said, “because if there is a federal criminal case, there are sure to be local county cases or they’ll show up in the national criminal records database. Besides, PACER [the federal court index system that contains all but one court’s indices] is a name-match-only system and you can’t get a date of birth, so you’d end up reporting dozens of cases on common names.”
About 2% of the criminal cases my firm reports are found on the federal criminal index, which may suggest that federal records searches are not very valuable. However, we have reported white collar fraud cases, drug convictions, firearm offenses, and bank robberies. In each of these instances, our clients immediately recognized the value of the federal criminal records search. (We have also reported minor offenses like operating a motor vehicle on a revoked driver’s license.)
In some cases, it is true that federal prosecutions are accompanied by county criminal charges. However, this is most often not the case and, even when local cases are filed, we’ve found that they are often dismissed in deference to the federal prosecution of the defendant. Even when there is a county-level conviction, the federal offense is usually much more serious.
As for the so-called national criminal records databases, to my knowledge the only federal criminal records that they contain are those that were previously reported as the result of a hands-on courthouse search. Like everything else in the criminal database world, these records are very incomplete. Even if a database were to devise a method to “screen scrape” the PACER system’s records, the cases would be name-match-only and it would be just as difficult to tie the case back to the applicant as if the research were being done directly with PACER.
I believe the real reason many screening firms discourage clients from ordering federal criminal cases is the lack of identifiers on the federal courts’ records.
Reporting cases as name-match-only invites consumer disputes because every John Smith will have a couple dozen cases to be reported. This practice also places the screening firm on the wrong side of the FCRA’s requirement that the firm “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”
In order to limit the number of possible name-match-only cases to be considered, we limit our research to specific federal districts. We explain to clients that we are searching the federal districts that correspond to the counties in which we are conducting research (typically, the counties where the applicant has lived, worked, or attended school). So, the John Smith who lived in Fort Worth, Texas will be searched in the Northern District of Texas, while the dozens of cases related to John Smith in the Southern District of Texas will not be searched. However, for additional research fees, we will gladly search all of the federal districts in a state.
However, when conducting a search on an applicant with a fairly unique name, we always search all of the available PACER indices. If a record is identified for the unique name in another federal district, even one in another state, our policy is to follow up on it…just in case. Not long ago, we found a lifelong Texas resident with federal drug and organized crime convictions in New York. Apparently, the drug ring with which she was working was based in New York and the prosecutions took place there. This conviction was the only negative item on her report and would have never been found had we not done this extra bit of due diligence.
However, even by limiting the jurisdictions searched, common names can produce numerous possible cases. So, if you want to offer federal criminal research to your clients but don’t want to report a gazillion name-match-only cases, there are a several options.
1. Review the online court documents.
Because we try never to report name-match-only cases, we put a lot of effort into developing identifiers for the defendants in the cases we find. The more recent federal cases in most federal districts contain scanned images of the case filings. Often, we find information in those documents that point to the identity of the defendant.
While it is increasingly rare to find dates of birth or social security numbers in court filings, we still find them on occasion. The criminal case cover sheet will often have additional identifiers. Sometimes, driver’s license numbers are sometimes not redacted from filings. Other times, the scanned documents will contain the defendant’s age, home address, or references to his employer. Any bit of information is useful in building a reliable set of identifiers.
2. Check the Federal Bureau of Prisons Inmate Locator (http://www.bop.gov)
This web-based search lists all inmates in custody since 1982. (“All” may be stretching it – we’re talking about the federal government’s recordkeeping here.) The identifiers information provided is limited to the inmate’s name, age, race, and sex. The website also shows the facility where the inmate is current incarcerated and his anticipated or actual release date. While finding an inmate with your applicant’s name and age doesn’t definitively identify your applicant as the defendant, it can be encouraging. More importantly, the BOP information can be useful in eliminating cases for applicants with unique names.
For instance, assume that your applicant is named Hamilton Melville and his date of birth is January 1, 1980, making his current age 28. You find only one federal case matching your applicant’s name – a 1999 criminal conviction for a Hamilton Melville who was sentenced to ten years in prison. If the Bureau of Prisons website shows a Hamilton Melville, age 32, with an anticipated release date of 2009 (meaning he is still incarcerated), you know that the inmate, and consequently the federal case, is probably not your applicant. To confirm this, we’ve had some success in contacting the prisons directly and simply asking them to verify the federal court jurisdiction that sentenced the inmate, further tying the inmate to the federal case.
Hint: We always search the BOP website as a part of any federal district criminal search. On a few occasions we have found inmates with unique names whose ages match those of our applicant. By tracing the information from the prison back to the appropriate federal court, we have located cases in jurisdictions in which we were not conducting research or that were filed before the court’s records were electronically indexed and available on PACER.
3. Contact the federal court clerk
Different courts have different rules about providing defendants’ identifiers. Some clerks will indicate whether or not our applicant’s identifiers match those of the defendant. Some have this information in the court’s computer system while in other courts they can retrieve the information if the file has not already been sent to the federal archives.
If the clerk who answers the phone cannot or will not provide the information, it is possible that the clerk in the court’s file room can. These are most often the clerks with the most immediate access to the file and, if case copies are ordered, these are the people who will have to make the copies. Often, rather than go through all the trouble of pulling the file, counting the number of pages to be copied, providing a quote for the copy costs, processing our company check for the copies, making the copies, and mailing them to us, the clerk will simply verify the identifiers in the file for us.
In some courts, the file clerk will verify that there are identifiers in the file but will not provide any additional information. Rather than suffering the delay of waiting on copies, we sometimes send a local researcher into the courthouse to review the file on our behalf.
4. Contact the lawyers and probation officers
The PACER information lists contact information for prosecutors, defense attorneys, probation officers, and even US Marshalls related to a case. Often one of these offices will have the defendant’s identifiers and they are willing to verify whether or not our applicant’s information matches that of the defendant.
5. Talk to the applicant.
If all previous efforts to develop identifiers fail, our next step is to contact the applicant directly and ask them about the federal criminal case. Depending on the nature of the case and how common the name is, we sometimes make this contact earlier in the process. If the applicant confirms that they are the defendant in the identified case, we make the report to the client. If the applicant denies that the case is related to them, we make that note in our files and proceed to our last step.
6. Pull the court file.
When the court file is not available online, this can be an expensive option.
If the file is located at the court, you can often use the PACER docket sheet information to identify key documents in the file that might include identifiers. Often the docket entry containing the “information” or the “indictment” will have an address and/or date of birth for the defendant. Once you have identified the documents that may have information you are seeking, simply contact the court to determine the best way to obtain copies of those documents.
Many courts accept credit cards and have standard packages of documents that they will provide for a flat fee. For an additional fee, they will even fax the documents to you.
If the file has been archived, it will be located at the regional National Archives and Records Administration warehouse. The court’s clerk will have to give you the necessary archive information for the file so that NARA staff can locate the file. (NARA can’t look up files by case number – go figure.)
If time is of essence, you may want to send a staff member or a research provider to NARA to review the file. However, it is often more convenient to simply arrange for NARA to make the necessary copies and send them to you. This can often be done online through NARA’s website at http://www.archives.gov.
7. Report the case and suggest that the applicant sign a FOIA request.
If all previous efforts have failed, we will report the case as a name-match-only. This is accompanied by a strongly worded statement indicating the case may not be related to the subject.
We provide a Freedom of Information Act-compliant request, along with a Department of Justice form authorizing the records to be released to our firm (Form DOJ-361). The FOIA request asks for any cases related to the applicant, specifically including a reference to the case in question. Though we have never done so, you could submit the applicant’s fingerprints along with the FOIA request. Once the applicant signs the request, we forward it to the appropriate Department of Justice office. We recommend that the employer not take any adverse action against the applicant until the results of the FOIA request are received.
It is rare that the process of developing identifiers in a federal criminal case requires more than the first three steps. In only a handful of situations have we ever exhausted all seven steps.
Providing this kind of service to our clients is not inexpensive and we charge our clients accordingly, typically about twice the cost of a normal county-level criminal search. Additionally, we charge all the court fees and copy costs associated with the additional research.
All this extra effort, however, is preferable to explaining to a client how a federal felon gained access to their workplace undetected.