Review of the Drug Enforcement Administration’s Custodial Accountability for Evidence Held at the Field Divisions

Report Number I-2004-003
January 2004

THE DEA's MISSION

The DEA enforces federal laws for controlled substances by investigating those individuals involved in the growing, manufacture, or distribution of controlled substances appearing in or destined for the United States.⁶ In the course of its duties, the DEA often seizes, stores, processes, and disposes of evidence that is used for federal prosecutions. The DEA relies on Evidence Custodians in its field divisions to receive, safeguard, track, and dispose of several categories of evidence and account for evidence completely, accurately, and promptly.⁷ By doing so, Evidence Custodians preserve the chain-of-custody and help protect evidence against the risk of theft, misuse, or loss. According to the International Association of Chiefs of Police, the evidence control function performed by Evidence Custodians has become a relatively complex management task that requires a good working knowledge of contemporary practices in the field, the ability to deal effectively with law enforcement personnel and the courts, and knowledge of federal law governing the handling and disposition of evidence.

Every three years, the Office of Inspections inspects each DEA field division and evaluates 11 program areas, one of which is evidence, to determine field compliance with statutes, regulations, policies, and procedures.⁸ If the Office of Inspections finds a deficiency in a program area, it issues to the field division a Recommendation, a Schedule of Finding (SOF), or a Significant Deficiency (SD), which the field division is required to correct. A Recommendation is issued when a minor deficiency has been identified that requires attention or corrective action. A SOF is more serious, and is issued when the Office of Inspections finds one or more of the following factors affecting a program area:

1. The program area or individuals are not functioning in accordance with established guidelines, policies, and procedures,

2. The quality or condition of a program has been identified as deficient, or

3. The deficiencies are adversely affecting the efficiency or effectiveness of an inspected entity.

A SD is issued when a serious and pervasive problem is identified as interfering with the stated function or mission of the inspected entity, or when there is a flagrant violation of governing statues, policies, rules, or regulations negatively affecting a program area or office.⁹

When a field division receives either a SOF or SD, the Special Agent in Charge (SAC) must correct the deficiency within 60 days after the inspection is completed. The SAC also must provide the Office of Inspections with a written status of actions taken or initiated to correct the deficiencies. If the SAC does not take corrective action, the Office of Inspections will inform the DEA's Board of Professional Conduct and the Deputy Administrator, who take appropriate action.

PREVIOUS REPORTS ON DEA CUSTODIAL ACCOUNTABILITY

The GAO identified custodial accountability problems with drug evidence in 1999. In November 1999, the GAO identified weaknesses in the DEA's accountability over drug evidence that increase the potential for theft, misuse, or loss of such evidence. The GAO noted that the division offices and laboratories had policies and procedures to ensure accountability over drug evidence, but did not always follow them. During site visits, the GAO found:

• Incomplete and missing documentation over drug evidence, including chain-of-custody documentation;

• Weaknesses in recordkeeping of drug and weapon evidence; and

• Weaknesses in accounting for drug weights, including unverified and unexplained weight differences in drug exhibits.

The GAO also found that DEA's internal inspection teams reported errors and inaccuracies in recordkeeping during inspections from March 1996 through August 1998. Although DEA officials were always able to locate selected drug evidence for review, GAO reported that the evidence weaknesses were systemic and that DEA's redundant controls were unable to ensure the integrity of evidence at all times. The GAO recommended that the DEA Administrator reinforce DEA's adherence to existing DEA policies regarding evidence, and modify existing DEA policy for the forms used to account for bulk marijuana and the process for weighing drugs prior to submission to the DEA forensic laboratories. According to the GAO, the DEA agreed to the recommendations and implemented them.

The Office of Inspections identified recurring custodial accountability problems in 2001. In June 2001, the DEA Administrator directed the Office of Inspections to review DEA's custodial accountability for five categories of evidence. The Office of Inspections reviewed its own inspection reports from 1999 through 2000 for all 21 domestic field divisions, and found that 13 of the 21 field divisions (62 percent) received a SOF for infractions involving drug evidence, including improper processing of exhibits, improper maintenance of logbooks, non-compliance with proper destruction procedures, commingling of drug and non-drug evidence, and improper temporary and long-term drug storage.¹⁰ The Office of Inspections also found that 10 of the 21 field divisions (48 percent) received a SOF related to seized and recovered monies, including non-compliance in conducting quarterly inventories, improper maintenance of logbooks, lack of a Seized and Recovered Monies Custodian, improper storage or maintenance of monies, lack of proper or timely transfer of seized monies to the U.S. Marshals Service, and seized monies not processed by appropriate personnel.

After surveying DEA Evidence Custodians, the Office of Inspections identified five underlying causes for the custodial accountability problems.

1. Overall Staffing. The Office of Inspections determined that the DEA did not have enough full-time Evidence Custodians, and that Evidence Custodians were often overwhelmed with other collateral duties such as fleet management. As a result, the DEA used Special Agents to perform on a part-time basis almost all of DEA's evidence custodial duties, which is an administrative rather than an enforcement duty. Respondents to the Office of Inspections' survey, comprising both Special Agents and non-agent Evidence Custodians, reported the following amounts of time spent on evidence duties per week:

   • From a few hours per week to as many as 60 hours per week spent processing drug and bulk drug evidence.

   • From a few hours per week to as many as 40 hours per week spent processing seized cash evidence.

   Based on these estimates, the Office of Inspections concluded that the DEA used a significant amount of Special Agent time on custodial duties rather than on case investigations.

2. Southwest Border Staffing. The Office of Inspections found that Special Agents assigned to collateral Evidence Custodian duties along the Southwest Border spent more than half their time processing evidence, and at some field offices evidence handling had become a full-time responsibility. The Office of Inspections concluded that these offices should hire full-time non-agent Evidence Custodians to process the massive volume of evidence seized, usually bulk marijuana, and return Special Agents to enforcement duties.

3. Guidance. The Office of Inspections found that Evidence Custodians did not complete logbooks accurately because they were unclear about their responsibilities. The Office of Inspections also noted the lack of standardization in evidence handling procedures, and insufficient Evidence Custodian guidance provided in the Special Agents Manual. The Office of Inspections concluded that the DEA needed to obtain pre-printed logbooks for Evidence Custodians, and clarify certain policies and procedures, especially evidence handling requirements for Evidence Custodians.

4. DEA Headquarters Support. The Office of Inspections found that the DEA did not designate a primary evidence program expert at DEA Headquarters to provide uniform guidance to Evidence Custodians. As a result, Evidence Custodians called different offices at Headquarters to find answers to their questions.

5. Training. The Office of Inspections reported that 39 percent of survey respondents in charge of drug evidence and 45 percent of survey respondents in charge of seized money had received no formal training. Most incoming Evidence Custodians received informal training from outgoing Evidence Custodians.

The Office of Inspections concluded that problems with custodial accountability at field offices would continue until DEA Headquarters addressed the overall issues of staffing, training, and guidance. In February 2001, the Office of Inspections made six recommendations to improve DEA's custodial accountability for evidence (Appendix 1). On June 11, 2001, the DEA Administrator signed the report that directed the Office of Resource Management (FR), the Office of Operations Management (OM), and the Office of Training (TR) to implement the recommendations.

PURPOSE

We conducted this review to examine the DEA's progress in correcting its custodial accountability problems at its field divisions. We focused on DEA's progress in implementing the six recommendations related to custodial accountability for drug evidence and seized monies made in the DEA Office of Inspections' Review of Custodial Accountability for: Drug Evidence, Non-Drug Evidence, Seized Monies, Recovered Monies, and Technical Equipment, February 2001. We examined accountability for seized drugs and monies because their value increases the risk of theft, misuse, and loss.

METHODOLOGY

Interviews. We conducted in-person and telephone interviews with personnel from the DEA's Office of Domestic Operations (DO), Office of Inspections, Office of Operations Management (OM), Office of Professional Responsibility (OPR), Office of Resource Management (FR), Office of Training (TR), Executive Policy and Strategic Planning Staff, Board of Professional Conduct, Disciplinary and Deciding Officials, and the San Diego Field Division. We also interviewed the current DEA Administrator, Evidence Custodians, the Program Manager for Evidence at the FBI, and officials from the Executive Office for United States Attorneys.

San Diego Field Division. Based on documentation provided by DEA Headquarters, we selected one field division office with a large volume of drug seizure activity. Within that field division, we visited all four DEA resident offices and the DEA's Southwest Laboratory.

Office of Inspections' Reports. We reviewed 13 internal inspection reports from June 2001 through January 2003. We did not review inspection reports for DEA foreign offices. We selected June 2001 as the starting date because this is when the DEA Administrator approved the Office of Inspections' recommendations.

Office of Professional Responsibility Cases. We examined Office of Professional Responsibility (OPR) case investigations categorized as the "Loss or Theft of Drug Evidence" or "Theft of Defendant's Property/Funds" from June 2001 through September 2002 to identify whether the loss or theft was due to situations beyond the DEA's control (e.g. lost by another agency participating in the investigation), and, if not, whether the theft or loss of drugs or monies was substantiated.¹¹ We excluded all cases from FY 2003 because disciplinary action was still pending for some of those cases.

OIG Survey of AUSAs. We surveyed 422 AUSAs that handle prosecutions related to seized drugs and monies in the 94 U.S. judicial districts. We asked the AUSAs to provide their views on the integrity of the DEA's chain-of-custody for seized drugs and monies. Of the 422 surveys sent, we received 120 responses from AUSAs in 77 of the 94 judicial districts. A copy of the survey instrument is included in Appendix II.

Additional Research. We reviewed the DEA's Special Agents Manual (FY 2003), training guides and lesson plans from the DEA Academy, Division Orders, staffing data, budget data requests for FY 2000 through FY 2004, and enforcement operations data for FY 2000 through FY 2003. We also reviewed two OIG reports entitled Office of Inspections in the DEA (August 1992) and Review of the DEA Self-Inspection Program (March 1996), GAO reports, and congressional testimony.

6. Title 21 USC, Chapter 13, Sections 801-971.

7. Field division Evidence Custodians receive, safeguard, track, and dispose of drug evidence (prior to its transfer to a DEA forensic laboratory), bulk marijuana, non-drug evidence, and seized monies.

8. During the intervening years, each field division reviews five program areas (evidence, enforcement management, enforcement effectiveness, financial management, and the confidential source programs), reports to the Office of Inspections any deficiencies, and certifies that they have been corrected.

9. DEA Planning and Inspections Manual Section 8214.1 - 8214.4.

10. At the time, the Office of Inspections inspected all 21 field divisions on a two-year cycle.

11. Because the OIG is conducting an audit of the DEA's forensic laboratories that includes evidence handling, we did not consider cases that occurred at the laboratories.