We examined USAO casework data to determine the rates at which criminal matters referred to USAOs were prosecuted, declined, or still pending. We found that a large percentage of the total criminal matters referred to USAOs throughout our 5‑year review period remained in a pending status as of the end of FY 2007, including 27 percent of all criminal matters referred during FYs 2003 and 2004. We further evaluated this information by specific prosecutorial areas and found that the rates at which USAOs prosecuted referred narcotics, violent crime, and immigration matters were higher than the rates for public corruption, civil rights, and terrorism matters.

Factors Affecting USAO Casework

According to EOUSA officials, several factors influence the type of cases worked by USAOs, including national and district priorities, availability of personnel resources, complexity of cases, and changes in priorities within investigative agencies. While some of these factors are within the control of USAOs, most are not.

National and District Priorities

USAOs are supposed to consider DOJ national priorities when managing their workload. Since the terrorist attacks of September 11, the top priority of the Department has been the prevention of terrorist attacks. According to the U.S. Attorneys’ Annual Statistical Report, in addition to counterterrorism the national criminal prosecution priorities for USAOs between FYs 2003 and 2006 were firearms, narcotics, corporate fraud, and civil rights.³⁸ In FY 2007, cyber crime, crimes against children, and official corruption were added as national USAO priorities. According to EOUSA and USAO officials, the Department does not establish specific priorities for civil litigation because USAOs are required to accept all defensive litigation cases, which are the majority of civil cases handled by USAOs.

In addition to the national priorities, each USAO must meet the prosecutorial needs of its district. As a result, a district has the ability to target crime areas that, while not national priorities, pose problems or threats in its jurisdiction.

Availability of Resources and Case Complexity

Authorized positions that remain unfilled may limit the types and number of cases handled by individual USAOs. As noted previously, budget limitations have resulted in an inability to staff USAOs at allocated levels, which in turn has led to a high rate of unused attorney FTEs and a decrease in the amount of attorney FTEs utilized.

In addition, the types of cases that USAOs handle vary in complexity with USAOs expending more time and resources developing and prosecuting complex cases. EOUSA attempted to develop a formula to measure case complexity, but determined it was not feasible to develop such a metric.

Focus of Investigative Agencies

The workload of USAOs is also dependent upon referrals from investigative agencies. When investigative agencies reprioritize their workloads, the USAOs may experience a similar shift in their casework. Moreover, declines or increases in certain types of criminal matters prosecuted by USAOs are often a direct reflection of the work done by investigative agencies. USAOs do not control the types of cases referred to them and thus cannot always control the changes in the types of cases prosecuted.

USAO Criminal Casework

Law enforcement agencies present information about their matters to the appropriate USAO, which decides if criminal charges will be filed. A district office records this information in LIONS as a matter referred. The matter becomes a case in LIONS once a USAO files an indictment or information in court.

According to the U.S. Attorneys’ Manual, USAOs must consider whether there is sufficient admissible evidence to obtain and sustain a conviction when making their determination about accepting matters for prosecution. The Manual advises USAOs to weigh additional relevant considerations, including: (1) federal law enforcement priorities, (2) the nature and seriousness of the offense, (3) the deterrent effect of prosecution, (4) the person's culpability in connection with the offense, (5) the person's history with respect to criminal activity, (6) the person's willingness to cooperate in the investigation or prosecution of others, and (7) the probable sentence or other consequences if the person is convicted. When USAOs determine not to accept a matter for federal prosecution, it is referred to as a declination.

Several factors affect the timing of decisions to accept or decline a matter for prosecution. In certain instances, the matters referred require additional investigation before USAOs are able to decide whether to prosecute. In addition, USAOs may not have available resources to thoroughly review all matters referred at any given time. Moreover, for certain types of matters, USAOs must request approval from other entities prior to making a decision whether to prosecute. For example, the DOJ National Security Division must review and approve terrorism-related matters before USAOs file for prosecution. In each of these instances, referred matters remain in a pending status until a decision is made to either prosecute or decline the matter.³⁹

Total Criminal Casework Analysis

In our review of USAO criminal casework, we first examined the total number of criminal matters referred to USAOs that were filed, declined, or pending. This data is provided in Exhibit 4-1.⁴⁰ Matters filed and declined may not have occurred in the same fiscal year in which the matters were referred. Therefore, we focused on the criminal matters referred to USAOs during each fiscal year and the status of those matters over the span of our review period.⁴¹

As noted in Exhibit 4-1, the total number of criminal matters referred to USAOs increased by 10,463, or 10 percent, from FYs 2003 through 2007 – growing from 102,561 in FY 2003 to 113,024 in FY 2007. We also found a growing number of pending matters throughout our review period. In total, 196,906 matters referred between FYs 2003 and 2007 still remained pending as of September 30, 2007. Over 25 percent of the total pending matters were referred during FYs 2003 and 2004.

When we provided this data to EOUSA officials, they expressed surprise at the high rate of pending matters, particularly in certain prosecutorial areas (discussed later in this chapter). Although several factors affect the timing of USAOs’ decisions to prosecute or decline matters, the large number of matters that LIONS reflected as still pending at least 3 years after being initially referred to the USAOs seemed unusual. In addition, EOUSA was unable to explain this high percentage of pending cases without reviewing individual USAO files.

Given EOUSA’s surprise at the large percentage of pending matters and its inability to fully explain the results of our LIONS data analysis, we attempted to assess whether the matters were actually still pending or whether the LIONS data was inaccurate. We therefore judgmentally selected a limited sample of 50 pending matters – 10 matters from 5 of the prosecutorial areas reviewed. Through coordination with EOUSA, we asked the applicable USAOs to review the matters and notify us, in writing, whether the matters were, in fact, pending and if so why they remained pending.

According to the USAOs’ responses, 22 of the 50 pending matters were accurately reflected as awaiting a decision to prosecute as of September 30, 2007. Of these 22 pending matters, several were either still under investigation or the decision to file or decline the matter for prosecution had been made during FY 2008. Moreover, 11 of the 22 pending matters were referred to the USAOs between FYs 2003 and 2005, while the remaining 11 were referred during FYs 2006 and 2007.

The USAOs responded that the remaining 28 matters were not actually pending and were instead shown as being terminated within the local LIONS databases, but not in National LIONS, which is the system that EOUSA uses for statistical reporting and resource decision‑making. The USAOs stated that several of the matters had been prosecuted and the defendants sentenced prior to September 30, 2007.

When we discussed these discrepancies with EOUSA officials, they stated that EOUSA does not check the accuracy of the data in the National LIONS by comparing it to what was transmitted from the USAOs or what is reflected in the LIONS databases maintained in the district offices. EOUSA officials stated that EOUSA instead relies upon data certifications performed semiannually by district offices.⁴² However, these certifications are done in the districts and address only the data that the districts submit to EOUSA, not what is ultimately stored in the National LIONS. Our analysis shows that these data sets are inconsistent.

EOUSA officials provided a variety of reasons as to why some of the matters in our sample would have had subsequent case filings and terminations in the districts’ LIONS that were not reflected in the National LIONS. For instance, EOUSA officials explained that the National LIONS was not capturing all cases filed by districts due to an error in the transmission process. Specifically, the National LIONS does not contain information on any cases filed by USAOs during a 24-hour timeframe between noon on September 30 and noon on October 1 of each fiscal year. EOUSA officials also stated that some matters may have been terminated without a case having been filed because the matter was handled in a certain court setting, such as magistrate court, and that these actions are not reflected in LIONS as case filings. During the audit close-out meeting, EOUSA officials were interested in these results and advised that EOUSA would look into this matter.

We believe that our analysis has revealed significant additional concerns over the accuracy and reliability of LIONS data. Therefore, EOUSA needs to implement a mechanism for testing the reliability of the National LIONS data and communicating with the districts on a regular basis to ensure that all the information in this system accurately depicts the districts’ casework.

Criminal Casework Analysis by Prosecutorial Area

We also reviewed the matters referred to USAOs by program categories to determine if there were any trends in the types of matters USAOs accepted or declined, as well as those that remained in a pending status. Specifically, we analyzed matters referred during FYs 2003 through 2007 and assessed the percentage of those matters that were filed, declined, or pending.

Terrorism – As reflected in the following exhibit, we determined that the number of terrorism-related matters referred to USAOs gradually declined from FYs 2003 through 2007. In addition, the percentage of terrorism-related matters accepted for prosecution gradually declined between FYs 2004 and 2007 – from 32 percent in FY 2004 to 18 percent in FY 2007. According to EOUSA officials, these types of matters usually remain in a pending status for a longer period of time because the investigative agencies oftentimes ask the USAOs to refrain from filing any charges while the agencies gather intelligence and complete their investigations.

From a district perspective, our analysis showed that from FYs 2003 to 2007, the extra-large USAOs generally received the majority of terrorism-related referrals.

We also identified substantial variations in the number of matters filed, declined, or pending among similar-sized district offices, including the following:

• Of the 296 terrorism-related matters referred to the Northern District of California, only 7 percent were accepted for prosecution.
  
  
• In contrast, of the 440 terrorism-related matters referred to the Middle District of Florida, 52 percent were accepted.

Appendix XI provides a detailed listing of the total number of terrorism-related matters referred to each USAO during FYs 2003 through 2007, including the number and percent of those matters filed, declined, or pending as of September 30, 2007.

Narcotics – USAOs filed for prosecution a significant percentage of the referred narcotics matters during each fiscal year of our review period, as reflected in Exhibit 4‑3. In particular, the USAOs filed approximately 75 percent of the narcotics matters referred during each given fiscal year between FYs 2003 and 2006, and 66 percent of the FY 2007 matters. According to EOUSA and USAO officials, a large number of narcotics matters are filed for prosecution because the requisite evidence is generally presented upon referral or the evidence needed to establish the case is easily obtainable.

Appendix XII contains a district-by-district overview of the total number of narcotics matters referred between FYs 2003 and 2007, as well as the status of those referred matters as of September 30, 2007.

Violent Crime – Similar to narcotics matters, the USAOs prosecuted approximately 70 percent of the violent crime matters referred during each fiscal year between FYs 2003 and 2006 and 55 percent of the FY 2007 matters. The percentage of matters declined for prosecution decreased significantly from 25 percent of the matters referred during FY 2003 to 9 percent of the matters referred during FY 2007, as reflected in Exhibit 4-4.

Appendix XIII provides a detailed listing of the total number of violent crime matters referred to each USAO during FYs 2003 through 2007, including the number and percent of those matters filed, declined, or pending as of September 30, 2007.

White Collar Crime – The results of our analyses of white collar crime matters were similar to those associated with terrorism-related matters. As reflected in the following exhibit, we determined that the percentage of white collar crime matters accepted for prosecution steadily declined from FYs 2003 through 2007 – decreasing from 50 percent in FY 2003 to 28 percent in FY 2007. Similarly, we found that the percentage of matters declined for prosecution decreased from 37 percent of the matters referred during FY 2003 to 7 percent referred during FY 2007.

Appendix XIV contains a district-by-district overview of the total number of white collar crime matters referred between FYs 2003 and 2007, as well as the status of those referred matters as of September 30, 2007.

Immigration – During our review period, the USAOs received more immigration-related referrals than any other single type of criminal matter. Unlike the other prosecutorial areas we reviewed, USAOs declined for prosecution very few immigration matters during FYs 2003 through 2007 – only 1.5 percent of the total immigration matters referred during this 5-year period.

USAOs located along the Southwest border accounted for nearly 80 percent of all immigration matters referred to USAOs between FYs 2003 and 2007.⁴³ Appendix XV provides a detailed listing of the total number of immigration matters referred to each USAO during FYs 2003 through 2007, including the number and percent of those matters filed, declined, or pending as of September 30, 2007.

Public Corruption – We found that between 23 and 46 percent of public corruption matters referred to USAOs were declined for prosecution between FYs 2003 and 2006. The percentage of matters filed for prosecution gradually declined from FYs 2003 through 2007. Exhibit 4‑7 shows the number of public corruption matters filed, declined, or pending by USAOs throughout our review period.

Appendix XVI contains more detailed information on public corruption matters within each USAO.

Organized Crime – USAOs were referred fewer organized crime matters between FYs 2003 and 2007 than any other prosecutorial area we reviewed. We found that between 41 and 53 percent of organized crime matters referred to USAOs were filed for prosecution between FYs 2003 and 2007. The percentage of matters declined for prosecution gradually decreased throughout our review period.

Among USAOs, we identified 24 offices that were not referred any organized crime matters between FYs 2003 and 2007. Moreover, we found that the following 4 USAOs were referred 756 of the 1,864 total matters during this time period: (1) District of Massachusetts, (2) District of New Jersey, (3) Eastern District of New York, and (4) Southern District of New York.

Appendix XVII provides a detailed listing of the total number of organized crime matters referred to each USAO during FYs 2003 through 2007, including the number and percent of those matters filed, declined, or pending as of September 30, 2007.

Civil Rights – Compared to the other prosecutorial areas that we reviewed, we found that civil rights matters were more likely to be declined than filed for prosecution. Our analysis showed that only 8 percent of all civil rights matters referred during FYs 2003 to 2007 were filed for prosecution, and nearly 70 percent were declined.

According to a USAO official, the majority of civil rights matters declined are “color of law” violations, which we found to be the case during our analysis of the civil rights casework data.⁴⁴ This official further explained that the USAOs generally decline these matters because they are usually based upon circumstantial evidence and are very dependent upon the perceived credibility of the plaintiff and witnesses. Exhibit 4‑9 shows the number of civil rights matters filed, declined, or pending by USAOs throughout our review period.

Appendix XVIII contains more detailed information on civil rights matters within each USAO.

All Other Criminal Matters – Several criminal activities fall into the category of “All Other Criminal,” including fugitive violations, pornography/obscenity violations, and government regulatory offenses. Exhibit 4‑10 shows the number of other criminal matters filed, declined, or pending by USAOs throughout our review period. Appendix XIX provides a detailed listing of the total number of all other criminal matters referred to each USAO during FYs 2003 through 2007, including the number and percent of those matters filed, declined, or pending as of September 30, 2007.

Summary of Criminal Casework Analyses

As reflected in the results of our criminal casework analyses, USAOs are more likely to file certain types of criminal matters for prosecution than others. We found that USAOs filed the majority of immigration, narcotics, and violent crime matters referred to them during the 5 years of our review. According to EOUSA and USAO officials, certain types of these matters are usually supported by adequate evidence at the time of referral. In contrast, matters such as civil rights, public corruption, and terrorism were more likely to be declined. According to EOUSA and USAO officials, the primary determinant for declining such matters is insufficient evidence.

Our analyses also revealed that a significant number of matters referred between FYs 2003 and 2007 remained in a pending status as of September 30, 2007, although our sampling of a limited number of cases indicated that the LIONS data is unreliable and inaccurate as to the pending status of cases. However, according to EOUSA officials, various factors can cause delays in accepting or declining a matter, including their complexity, the availability of resources, and the attainability of evidentiary support. Nevertheless, EOUSA and USAO officials informed us that they believed that certain matters, such as immigration and narcotics, should not generally remain pending for an extended period of time, and they were surprised by our findings that a large percentage remained pending as of September 30, 2007. Upon further inquiry, we determined that many of the pending matters had been closed within their local LIONS systems and that these matters should not be considered pending. We believe that EOUSA must ensure that the information entered at the district level is accurately reflected within the National LIONS.

USAO Civil Casework

We also analyzed data on the civil casework of USAOs for FYs 2003 through 2007. Unlike criminal casework, USAOs do not record declinations of civil matters referred because in the majority of instances civil cases are defensive matters that USAOs must accept. However, EOUSA maintains data on the number of civil matters referred to USAOs as well as the status of the cases (filed or pending). Civil cases handled by USAOs include issues such as affirmative civil enforcement and asset forfeiture cases. Exhibit 4‑11 presents the number of total civil matters referred that were either filed or pending during our 5-year review period. As with our criminal casework analysis, the date a case was filed may not be the same fiscal year in which the matter was referred.

As shown in the preceding exhibit, the total number of civil matters referred to USAOs decreased by 9,118, or 10 percent, from FYs 2003 through 2007. Of the civil matters referred during those 5 fiscal years, the percentage of matters filed remained relatively steady – ranging from 87 percent to 90 percent of all matters referred during each fiscal year. According to EOUSA officials, because a large proportion of the civil workload involves defensive litigation (defending the federal government) that USAOs must accept, the number of civil matters filed (as a percentage of the number of matters referred) should be relatively high. Appendix XX presents civil casework information for each USAO.

Criminal and Civil Casework per Attorney FTE⁴⁵

In addition to our analyses of matters filed, declined, or pending, we reviewed case data in association with the utilization of attorneys within USAOs to determine the average caseload per attorney FTE for FYs 2003 through 2007.⁴⁶ As reflected in Exhibit 4-12, the average caseload per attorney FTE did not change drastically from one fiscal year to the next throughout our review period. There was only a 2.46 increase, or 7 percent, of cases per attorney FTE from FY 2003 to FY 2007.

We also performed separate analyses of the average criminal and civil caseload per attorney FTE for FYs 2003 and 2007. We grouped these results by EOUSA’s categorization of USAOs based upon office size, as shown in the following table.

EXHIBIT 4-13 CRIMINAL AND CIVIL CASELOADS PER ATTORNEY FTE FYs 2003 AND 2007
	FY 2003			FY 2007
	Active Cases	Utilized FTE	Cases per Attorney FTE	Active Cases	Utilized FTE	Cases per Attorney FTE
Criminal:
Small USAOs	4,591	305.65	15.02	5,389	312.78	17.23
Medium USAOs	10,944	644.11	16.99	12,491	649.15	19.24
Large USAOs	14,114	846.67	16.67	15,217	852.15	17.86
Extra-large USAOs	33,850	1,856.14	18.24	38,809	1,758.82	22.07
Total	63,499	3,652.57	17.38	71,906	3,572.90	20.13
Civil:
Small USAOs	8,201	103.27	79.41	8,269	102.86	80.39
Medium USAOs	26,447	207.73	127.32	22,700	213.54	106.30
Large USAOs	28,484	275.58	103.36	29,180	266.27	109.59
Extra-large USAOs	49,956	489.65	102.02	51,918	466.70	111.24
Total	113,088	1,076.23	105.08	112,067	1,049.37	106.79
Source: OIG analysis of USA-5 and LIONS data

As depicted in the preceding exhibit, the criminal cases per attorney FTE increased from FYs 2003 to 2007 among each grouping of USAOs. Similarly, with the exception of medium-sized USAOs, the civil cases per attorney FTE increased within each group from FYs 2003 to 2007.

Appendix XXI contains a listing of criminal and civil caseloads per attorney FTE for each USAO. We used this information to compare an individual USAO’s criminal and civil caseload per attorney FTE to those of other similar-sized offices. This analysis revealed several districts that experienced significant deviations from the average criminal and civil caseloads per attorney FTE. Regarding criminal caseloads, we determined that the extra-large offices generally had 22 cases per attorney FTE in FY 2007. However, the Districts of Arizona and Western Texas each had an average of more than 50 criminal cases per attorney FTE, while the District of Columbia and the District of Massachusetts had average criminal caseloads of 3 and 10 cases per attorney FTE, respectively.

However, the problems with the LIONS data and the failure of USAOs to close pending cases in LIONS could affect this analysis. This results in cases that are no longer part of a USAO’s active workload being shown as on-going instead of terminated, which leads to an inaccurate view of a district’s workload. Therefore, the caseloads per attorney FTE presented in Exhibits 4-12 and 4‑13 may be higher than what is actually occurring.

EOUSA Monitoring

As with the utilization of attorneys, EOUSA executive management does not receive routine casework-related reports that provide a comprehensive assessment of the number and types of cases handled by each USAO. Again, EOUSA monitors USAO casework and workloads during its EARS reviews of district offices, which occurred every 4 to 5 years.⁴⁷ In addition to the EARS reviews, the Data Analysis Staff at EOUSA analyzes USAO data on an ad hoc basis when it receives requests, including inquiries received from EOUSA executive management, the Attorney General, and Congress. The Data Analysis Staff also compiles an annual statistical report that provides details on the entire caseload of individual USAOs. However, the Data Analysis Staff does not include specific district caseload information, such as the number of narcotics trafficking cases filed by each USAO, in these annual statistical reports.

As discussed in Chapter 3, EOUSA hopes to address this issue by developing a method to evaluate the resource management of all 94 USAOs on a consistent basis – including examining the casework of USAOs.

Conclusion

In total, we determined that 554,675 criminal matters were referred to USAOs between FYs 2003 through 2007. According to LIONS data, of these criminal matters, over 50 percent were filed for prosecution, 13 percent were declined, and 35 percent remained in a pending status as of the end of FY 2007.

We evaluated the status of criminal matters referred in specific prosecutorial areas and identified certain matters that were more likely to be filed for prosecution, such as narcotics and violent crime, which officials said generally have more concrete evidence upon referral. USAOs declined more referrals involving civil rights and public corruption cases, where officials said evidence is more difficult to obtain.

We also analyzed the civil casework of USAOs and found that 88 percent of the 424,538 civil matters referred to USAOs during FYs 2003 through 2007 were filed, while the remaining 12 percent were in a pending status. We assessed the average total caseload per attorney FTE and found that it remained relatively constant throughout our review period – ranging from 37 cases per attorney FTE in FY 2003 to 40 cases per attorney FTE in FY 2007.

Our review of the criminal and civil caseloads per attorney FTE showed that the overall criminal and civil caseloads per attorney FTE increased from FYs 2003 to 2007. Specifically, the average criminal caseload increased from 17 cases per attorney FTE in FY 2003 to 20 cases per attorney FTE in FY 2007. Civil casework increased by 2 percent from FYs 2003 to 2007 from 105 cases per attorney FTE to 107 cases per attorney FTE.

During our review period, we found that EOUSA assesses the workload of USAOs during EARS evaluations, which took place every 4-5 years. EOUSA’s Data Analysis Staff generates annual statistical reports, but they do not include detailed district analyses. Although EOUSA examines the casework of USAOs on a general level, we believe it should perform regular comprehensive assessments. We were told that EOUSA has recently begun to develop such a program. We believe that regularly generating and reviewing analyses similar to those presented in this chapter could help EOUSA in overseeing the USAOs’ operations.

Recommendation

We recommend that EOUSA:

10. Ensure that a comprehensive review of each USAO’s casework is performed annually, including a comparison of the data maintained in individual district LIONS databases to the information reflected in the National LIONS.