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 HAS NOT CORRECTED ITS CUSTODIAL ACCOUNTABILITY PROBLEMS AT THE FIELD DIVISIONS

We found that DEA management failed to implement most of the recommendations from its 2001 internal review of custodial accountability. DEA's internal inspections of field divisions continue to identify custodial accountability problems for seized drugs and monies. Our interviews with Evidence Custodians and examination of custodial guidance and training demonstrate that the DEA's recommendations remain valid, and their implementation would improve custodial accountability at the field divisions.

Four of Six Recommendations Have Not Been Implemented. We found that the DEA did not implement four of the six recommendations for solving the field divisions' custodial accountability problems identified by the Office of Inspections in 2001. The DEA has not produced an Evidence Custodian Handbook, required the field to obtain and use pre-printed logbooks, identified an evidence program expert at the DEA Headquarters, or developed a comprehensive training program for Evidence Custodians. When we asked why the DEA did not implement these recommendations, an Office of Inspections official who worked on the 2001 review stated that the DEA distributed the report to its Executive staff but it was never distributed to the appropriate offices for action. According to the official, the DEA Administrator who requested the review left the agency shortly after approving the final report and recommendations, and DEA management did not ensure that the recommendations were implemented. When we contacted OM and TR officials, they told us that they were unaware of the Office of Inspections report, its recommendations, and their responsibility for implementing specific recommendations tasked to their respective offices.

Below are the Office of Inspections' recommendations from the 2001 report, and our analysis of the implementation status.

DEA Recommendation 1: The Office of Resource Management should conduct a workload analysis related to the custodial duties. It should specifically address the workload issues of the division office custodians and the collateral duties of the Special Agents.

DEA Recommendation 2: The Office of Resource Management should conduct a workload analysis, assessing the duties for handling evidence in the Southwest Border resident offices.

The DEA Completed Two Workload Studies. In response to Recommendations 1 and 2, the Office of Resource Management (FR) conducted two workload studies. The first study, completed in November 2001, showed that the DEA could add 16 additional full-time Evidence Custodians at 25 Southwest Border offices. The DEA Chief Financial Officer, in consultation with the FR, analyzed the workload data and requested congressional authorization for nine new Evidence Custodian positions at selected Southwest Border offices. On February 13, 2003, the DEA Administrator authorized changes to the DEA Table of Organization to included nine additional Evidence Custodian positions along the Southwest Border. DEA filled six of the nine new Evidence Custodian positions by transferring personnel from other DEA offices or reclassifying existing positions. As of August 2003, the DEA had not filled the remaining three Evidence Custodian positions.

In FY 2002, the DEA conducted a second workload study consisting of a field division survey and an analysis of investigative work hours to determine the amount of time Special Agents spent on administrative duties. The study found that:

Special Agents' work hours devoted to non-investigative work, such as technical operations, inventory management, evidence management, security, program coordination, etc. equaled 190 Full-time Equivalents (FTE)…. In summary, the DEA is currently incurring excessive personnel costs because senior Special Agents are sometimes performing collateral duties that could be effectively handled by a Professional/Administrative or Technical/Clerical position costing 60 percent less than a senior Special Agent.

Of the 190 FTE devoted to non-investigative work, approximately 39 FTE were for processing evidence. The DEA used the second workload study to support its FY 2004 congressional budget request for 85 new "administrative support [positions] to improve the utilization of its current [Special Agent] resources." If the budget request is approved, the DEA estimates that approximately 80 Special Agent FTE currently spent on administrative duties will be reallocated to investigative duties.

DEA Recommendation 3: The Office of Operations Management should produce an Evidence Custodian Handbook for the use of personnel assigned custodial duties in the program areas of drug evidence, bulk drug evidence, non-drug evidence, seized monies, and recovered monies.

We found that as of November 2003, the OM had not produced an Evidence Custodian Handbook and officials said they had no plans to do so. Evidence Custodians told us that they discussed with DEA Headquarters staff the need to develop an Evidence Custodian Handbook specific to their duties and responsibilities at an Evidence Custodian Conference held in April 2003. However, they did not know if a handbook was ever developed.

When we asked OM officials why they do not plan to develop an Evidence Custodian Handbook, they told us that a handbook was not necessary for four reasons:

1. The Special Agents Manual guidance is adequate and OM plans to update the evidence handling sections in FY 2004,

2. OM already developed an operating manual for Evidence Custodians that use the Enhanced Non-Drug Evidence Data System (ENEDS),

3. Shortcomings in evidence handling are caused by poor compliance with the policies and procedures outlined in the Special Agents Manual,

4. Creating an Evidence Custodian Handbook could increase noncompliance by having two sets of policy and procedures in the field. It could also create difficulties for Special Agents in court when they testify about how they processed evidence.

We considered OM's four reasons and determined that Evidence Custodians need a handbook. Evidence Custodians told us that they need standard operating procedures and information that is specific to their duties because neither the Special Agents Manual guidance nor the ENEDS operating manual answers all their questions about evidence handling, storage, and disposal. By answering Evidence Custodian's questions about evidence handling, storage, and disposal in an Evidence Custodian Handbook, the DEA can improve their compliance with evidence handling policies and procedures.

The reasoning regarding conflicting sets of policy and procedures is similarly flawed. A handbook for Evidence Custodians will eliminate the need for individual field divisions to issue their own Division Orders providing supplemental guidance to their Evidence Custodians on how to receive, safeguard, track, and dispose of evidence. Finally, an Evidence Custodian Handbook will not create difficulties for Special Agents because they need not receive a copy, or, if it is available on the Intranet, have access to it, unless they are assigned Evidence Custodian duties.

DEA Recommendation 4: Field division offices should obtain pre-printed logbooks for all field division offices to ensure standardization, proper evidence accountability, and compliance with audit requirements.

We found that not all field division offices have obtained and use pre-printed logbooks to ensure standardization, proper evidence accountability, and compliance with audit requirements. For instance, at the DEA San Diego Field Division, only one of the four Evidence Custodians we met had and used a pre-printed logbook. In another field division, an Evidence Custodian told us that she has pre-printed logbooks, but that the Office of Inspections changed the column titles, and, in order to comply with the new requirements, she now uses both pre-printed and handwritten logbooks.

Until the Special Agents Manual is revised to require the use of pre-printed logbooks, and Evidence Custodians use them consistently, the DEA will continue to have problems with logbook standardization and noncompliance with audit requirements for evidence. Since logbook standardization helps ensure that all Evidence Custodians complete the same required information when receiving, checking out, and disposing of evidence, it is one way to improve custodial accountability, which, in turn, decreases the risk that evidence can be stolen, misused, or lost.¹²

DEA Recommendation 5: The DEA should identify a single point-of-contact (expert on drug/bulk drug, and non-drug evidence, including seized monies and Official Advance Funds) at DEA Headquarters to respond to inquiries regarding evidence.

We found that OM has not met the intent of this recommendation. OM officials originally told us that they identified a staff coordinator as the point-of-contact for Evidence Custodians. Later, OM officials modified their response and stated that Evidence Custodians call the main OM telephone number and are redirected to any one of several staff members. By not identifying a single Headquarters point-of-contact for evidence, the DEA cannot effectively manage and coordinate inquiries from the field, or ensure it provides uniform guidance to Evidence Custodians, tracks questions, and identifies common trends for future policy updates. One Evidence Custodian told us that she does not call OM because its staff answers questions based on how Special Agents should process evidence, but not necessarily on how Evidence Custodians should handle the evidence in their custody. Another Evidence Custodian told us that "no one stays in policy [OM] long enough to become experts" and therefore the DEA does not have an "evidence guru." Almost all of the Evidence Custodians we interviewed identified Evidence Custodians in other field divisions as the experts they consult to answer their questions regarding evidence. As a consequence, Evidence Custodians receive guidance from other Evidence Custodians that may or may not be correct.

DEA Recommendation 6: The Office of Training, in conjunction with the Office of Operations Management, should develop a comprehensive training program for personnel assigned custodial duties. Specifically, training for all Evidence Custodians should be scheduled within three months of assignment, and conducted in a formal training setting at the field division or DEA Headquarters.

We found that TR has not developed a comprehensive training program for Evidence Custodians. Officials from TR asserted that the DEA does not need a training program because Special Agents receive six hours of evidence training at the DEA Academy, reinforced by practical exercises, which is sufficient for performing custodial duties. According to officials from OM, non-agent Evidence Custodians do not require comprehensive training because they receive formal training on how to operate ENEDS.

We examined these two views and found that a comprehensive training program for Evidence Custodians is still needed for four reasons. First, DEA's evidence training at the Academy focuses only on the collection, assembly, packaging, and transportation of evidence collected in the field to the evidence room. Academy training does not cover processing and maintaining custody of evidence once it is submitted to the Evidence Custodian. Second, Evidence Custodians told us that although ENEDS training was very good, they would benefit from formal Evidence Custodian training covering custodial duties and responsibilities. Third, DEA officials in the field told us that Special Agent and non-agent Evidence Custodians are often inexperienced, and fourth, they also told us that Evidence Custodian turnover in some offices is frequent, especially for Special Agents, which increases the likelihood of mistakes in evidence handling.

Custodial Accountability Problems Persist in the DEA's Evidence Program. To determine the current state of the evidence program, we examined reports from DEA internal inspections conducted at 13 field divisions from June 2001 through January 2003 and found that the field divisions continued to have problems with evidence accountability. Our analysis showed that more than half of the DEA's field divisions were cited for evidence program deficiencies related to drugs and monies. We found that the deficiencies existed in field divisions of every size. These problems persist despite annual field division reviews of its evidence program using Office of Inspections' checklists, despite each Division's certification that deficiencies were corrected, and despite the use of ENEDS by all field divisions.

The Office of Inspections cited 8 of the 13 field divisions (62 percent) for drug evidence infractions including improperly processed exhibits; problems with the forms that track the acquisition, transfer, and destruction of drugs; discrepancies in the seizure, submission, and reporting of drug and non-drug evidence; no logbooks or improperly maintained logs; improper temporary drug storage; and no annual inventory or failure to reconcile inventory discrepancies. Below are two recent examples of custodial accountability deficiencies for seized drugs identified by the Office of Inspections since June 2001.

• In Denver, Colorado, members of a task force group routinely maintained unprocessed drug and non-drug evidence for one to two days in their respective hotel rooms while working on a temporary duty assignment. DEA policy strictly prohibits maintaining drug evidence in unsecured locations even on temporary duty (January 2002).

• In Des Moines, Iowa, the Resident Office lacked a facility or safe dedicated to the temporary storage of drug evidence and did not maintain a current logbook. In addition, the Drug Evidence Custodian inappropriately recorded bulk marijuana, drug evidence, and seized monies in the same bound ledger, contrary to DEA policy (September 2002).

Three of the 13 field divisions (23 percent) received SOFs related to seized monies. The most serious infraction was the use of non-DEA employees as custodians. Other infractions were Seized and Recovered Monies Custodians improperly processing seized monies, no logbooks or improperly maintained logbooks, commingling of seized monies with recovered monies; improper storage or maintenance of monies; and no required audits of monies. Although the rate of cash-related deficiencies was lower than the 48 percent rate reported by the DEA in 2001, the reported deficiencies remain serious. Below are two recent examples of custodial accountability deficiencies for seized monies identified by the Office of Inspections since June 2001.

• At the Savannah, Georgia, Resident Office, the Seized and Recovered Monies Custodian was not receiving the seized monies checks. Instead, the Special Agents transported seized monies to the bank for conversion to a cashier's check and transferred the check to a contract employee. The contract employee mailed the check to the U.S. Marshals Service (October 2002).

• In Charleston, South Carolina, office staff could not locate any previous logbooks for the Office of Inspections. In violation of DEA policy, the Seized and Recovered Monies Custodian was a contract employee and did not maintain a bound ledger. Instead, the custodian recorded entries in an Excel spreadsheet (October 2002).

We also found that the Office of Inspections continues to find improperly maintained logbooks. In 5 of the 13 field divisions (38 percent), logbooks for seized drugs or monies were either maintained improperly or not maintained at all. For example:

At the Cheyenne, Wyoming, Resident Office, Evidence Custodians were commingling drug and non-drug evidence in the same logbook. Also, the temporary logbook did not document the transfer of evidence into or out of the custody of the Evidence Custodian (October 2002).

The DEA imposed discipline in five cases for the loss of seized drugs or monies since June 2001. In 1999, the GAO reported that DEA evidence accountability weaknesses increase the potential for theft, misuse, or loss of such evidence and could compromise it for federal prosecutions. The DEA responded to the GAO and stated that it maintains the integrity of evidence at all times through a series of redundant controls which ensure that shortcomings in one control will not result in an accountability problem. As an example of its redundant controls, the DEA stated that Evidence Custodians record the transfer of evidence on several different forms, thus ensuring that recordkeeping errors can be resolved by comparing forms.

We examined all OPR investigative files involving allegations of lost drugs or monies in DEA custody since June 2001, and found that the DEA imposed discipline in five cases involving accountability deficiencies leading to the loss of seized drugs or monies.¹³ Below are two case examples.

• In 2001, a DEA laboratory's annual inventory found that two drug exhibits were missing (29.2 grams and 1.1 grams of methamphetamine). A laboratory employee mailed the two drug exhibits to a Special Agent's personal address for an upcoming trial without the proper authorization. The Special Agent retained the exhibits in his Official Government Vehicle at the airport during an out-of-town trip, and later placed the exhibits in his desk. Four months later, the DEA laboratory requested the return of the exhibits and the Special Agent could not find them.

• In 2002, the OPR investigated a cash seizure that had a $1,000 discrepancy. A DEA Task Force Officer accepted a large cash seizure from a local police officer who had made a traffic stop arrest. The DEA Task Force Officer placed the cash in a self-sealing evidence bag on the scene and followed DEA policy by not counting the cash. However, the Task Force Officer issued a receipt to the local police officer for a specific amount, rather than an "undetermined amount of U.S. currency" per DEA policy. Later, the Task Force Officer transported the sealed cash evidence to the bank alone, also in violation of DEA policy.

The DEA's accountability problems do not appear to have impacted ongoing prosecutions. To examine whether the DEA's continuing custodial accountability problems have compromised evidence for federal prosecutions, we surveyed 422 AUSAs responsible for prosecuting federal drug and asset forfeiture cases. We received responses from 120 AUSAs in 77 of the 94 judicial districts. All AUSAs reported they believed that the DEA safeguards the integrity of seized drugs and monies, and none of the AUSAs identified a case in which the integrity of the DEA's custodial accountability had resulted in the failure of the prosecution. However, some of the AUSAs reported that they had identified one or more cases in which they had problems with DEA recordkeeping. Specifically, 12 percent of the AUSAs cited problems with seized drugs, mainly for inaccurate and incomplete recordkeeping and 5 percent reported problems in cases involving seized monies, mainly for inaccurate recordkeeping. We followed up by interviewing five AUSAs that reported problems with DEA's custodial accountability and found that the incidents were minor and correctable.

Office of Inspections' Recommendations Remain Valid. Because two years have passed since the DEA Administrator approved the Office of Inspections' recommendations, we evaluated whether the DEA should implement the remaining four recommendations. We concluded that the original recommendations are still valid. First, the DEA should ensure that all Evidence Custodians have pre-printed logbooks because the Office of Inspections continues to find problems with logbooks during field inspections. Using pre-printed logbooks would help resolve some of the problems identified by the Office of Inspections by ensuring that all Evidence Custodians use the same data fields to track evidence in their custody. Second, the DEA should appoint an expert point-of-contact for evidence to respond to inquiries regarding evidence. Evidence Custodians seek assistance from other Evidence Custodians because they have experience and expertise that OM does not have for interpreting guidance in the Special Agents Manual. As a consequence, Evidence Custodians receive guidance from other Evidence Custodians that may or may not be correct, and DEA Headquarters does not have the opportunity to provide uniform guidance, track questions, and identify common trends to improve DEA evidence handling policies in the Special Agents Manual.

Third, the DEA should develop a handbook for Evidence Custodians because the Special Agents Manual does not outline standard operating procedures specifically for Evidence Custodians. In addition, some Evidence Custodian positions in smaller offices have frequent turnover, and an Evidence Custodian Handbook would provide greater uniformity in evidence handling. Fourth, the DEA should provide comprehensive training for Evidence Custodians because given the lack of available formal training, several DEA field divisions have developed their own written guidance and training for Evidence Custodians. This results in Evidence Custodian guidance and training that vary in quality and uniformity throughout the DEA. In contrast, the FBI provides all of its Evidence Custodians with a booklet regarding pertinent evidence handling sections from its Manual of Administrative Procedures, and mandatory in-service training for one week. The FBI also ensures that alternate Evidence Custodians receive training, as well as Evidence Custodian supervisors.

Evidence Custodian feedback on guidance and training. During our interviews, we asked Evidence Custodians (Special Agents and non-agents) to rank the evidence handling guidance found in the Special Agents Manual using a 1 to 5 scale, with 1 being poor and 5 being superior. The average rank was 3. Evidence Custodians told us that the Special Agents Manual was not specific or clear enough for them to perform their duties, and several items needed clarification. Several Evidence Custodians stated that an Evidence Custodian Handbook would be valuable for three reasons:

1. The Special Agents Manual is designed to instruct Special Agents how to process evidence into custody. It does not clearly instruct Evidence Custodians on how to receive, safeguard, track, and dispose of evidence and account for evidence completely, accurately, and promptly.

2. Some Evidence Custodian positions in smaller offices have frequent turnover, and sometimes inexperienced personnel without even informal training are assigned to fill the position.

3. An Evidence Custodian Handbook would provide greater uniformity in evidence handling.

Evidence Custodians suggested that the DEA create a handbook covering standard operating procedures for their position, describing important "do's and don'ts" when maintaining custody of evidence, listing common errors made by Evidence Custodians, and providing examples of DEA forms with errors made by Special Agents or Task Force Officers. In one field division, an Evidence Custodian told us that her office created its own handbook to address these issues.

With regard to training, several of the Evidence Custodians, both newly hired and long-term employees, said that they would have benefited from formal Evidence Custodian training covering their duties and responsibilities. One Evidence Custodian told us that her training consisted of on-the-job instruction from a student aide for one week. Another told us that the extent of her training was receiving a copy of the Special Agents Manual, while another reported that she was sent to another field division for instruction. An Evidence Custodian with more than a decade of experience stated that it did not make organizational sense for the DEA to offer formal classroom training to administrative assistants but not to Evidence Custodians who are responsible for maintaining custodial accountability over evidence.

Field division guidance and training efforts. We found that in the absence of a standard Evidence Custodian Handbook, field divisions have individually attempted to improve guidance and training for Evidence Custodians, which has led to inconsistent evidence handling practices and training. In the Atlanta and Seattle field divisions, for instance, SACs provide Evidence Handling Division Orders to their Evidence Custodians to help them perform their duties. These Division Orders offer much of the information that Evidence Custodians told us was missing from the Special Agents Manual. For example:

• The Atlanta, Georgia, field division issued three Division Orders that provide additional guidance for its Evidence Custodians. "Bulk Drug Evidence Procedures" provides guidance on inventorying, transferring, and destroying bulk drugs. "Monies Seized for Forfeiture-Non Evidentiary" instructs Evidence Custodians on the forms they must receive from the case agent or seizing agent for forfeiture and deadlines for processing custodial paperwork. This Order also provides a table listing the exact information required in the evidence logbook. "Handling of Seized and Recovered Monies and High Value Items" describes all of the necessary forms and steps that must be completed by the Evidence Custodian to process seized monies, especially if temporary storage is needed.

• The Seattle, Washington, field division issued two Division Orders that provide guidance to its Evidence Custodians. "Handling of Non-Drug Evidence" outlines how Evidence Custodians should handle forms, with a particular focus on required signatures, which forms to keep, and when and where to file them. "Handling of Non-Drug Evidence" also provides Evidence Custodians with the necessary information to perform their duties and ensure custodial accountability, and has a series of examples for Evidence Custodians to reference and follow.

In the absence of an agency-wide comprehensive training program, we found that field divisions ask their most experienced Evidence Custodians to train new employees, both Special Agent and non-agent. For example, an Evidence Custodian in San Diego told us that, although he had never received formal training, he had independently developed an Evidence Custodian training program. Another Evidence Custodian informed us that he was invited by two divisions to train their Evidence Custodians and help prepare them for a field inspection. Sometimes, field divisions will send their new Evidence Custodians to another division for training by an experienced Evidence Custodian. This practice results in Evidence Custodian training that varies in quality and uniformity throughout the DEA. For instance, an Office of Inspections team found that bulk marijuana evidence was not being processed in compliance with DEA policies and procedures, and had to train four Bulk Drug Evidence Custodians.

Impact. In the absence of adequate guidance and training, DEA Evidence Custodians sometimes violate important policies and procedures designed to ensure the chain-of-custody for evidence. In one disciplinary case we reviewed, the DEA identified the lack of a guidance and training for Evidence Custodians as one reason for the loss of drug evidence.

In 2001, a DEA Special Agent and a DEA Task Force Officer lost two grams of cocaine from the Houston Field Division. After receiving the cocaine from the U.S. Border Patrol, they put it into temporary storage at the Houston district office. Four days later, the Special Agent, who also was an alternate Evidence Custodian, retrieved the drug exhibit from the vault without logging it out, and gave the exhibit to the Task Force Officer without documenting the transfer. Both officers prepared the cocaine for shipment to the DEA laboratory by placing it in an open and unattended box at the resident office, along with other drug exhibits awaiting shipment to the DEA laboratory. The laboratory never received the cocaine. OPR concluded that the exhibit was lost because the Special Agent failed to log the evidence out of the vault, document the transfer of custody, and secure the box.

As described in the OPR investigation, the Special Agent and Task Force Officer lost the evidence because they were not familiar with Evidence Custodian responsibilities and had not been trained thoroughly. The Special Agent had served six months as an alternate Drug Evidence Custodian, but had received only one day of informal instruction provided by the primary Drug Evidence Custodian.¹⁴ This case demonstrates that by improving the guidance and training offered to personnel charged with the receipt, safeguarding, and tracking of evidence, DEA field divisions can improve their custodial accountability and compliance with DEA policies and procedures.

12. OM officials informed us that ENEDS will replace paper logbooks, possibly in FY 2005.

13. OPR categorizes the allegations as "Loss or Theft of Drug Evidence" and "Loss or Theft of Defendant's Property/Funds." We eliminated cases in which the loss or theft drugs or monies was beyond the DEA's control, and the allegation was not substantiated by the OPR's investigation and the DEA disciplinary process.

14. In November 1999, the Office of Inspections cited the Houston Field Division for its custodial accountability deficiencies. In 2001, custodial accountability deficiencies led to the loss of drug evidence in the case listed above. In July 2002, the Office of Inspections again cited the Houston field division for its custodial accountability deficiencies.