DEA So Forfeiture-Focused It Hired A TSA Screener To Check Travelers And Baggage For 'Guilty' Cash

from the if-drug-trafficking-dips,-so-do-the-opportunities-to-grab-cash,-so... dept

Here you are: written evidence that asset forfeiture leads to law enforcement activity, rather than the other way around. (h/t Brad Heath)

The DEA has already been blasted by the DOJ's Inspector General for its confidential informant program. The DEA's informants were paid when they weren't producing intel. They were paid and sheltered from prosecution when they committed criminal acts falling outside their purview as informants. And the entire program was adrift in a sea of corruption and chaos, subject to no real oversight. To top it all off, Inspector General Michael Horowitz had to battle the DEA for every document and piece of relevant information just to arrive at these conclusions.

It's not just common criminals being added to the DEA's payroll as confidential informants. It's also other government employees. The DEA isn't running a government employee-focused sting, however. It's just looking for money. More eyes mean more money. And the eyes that will see the most money in transit will be those located at commuter hubs.

First off, the one-page report (which follows up its comprehensive report on the DEA's informant program) notes that the DEA is throwing away tax dollars by paying a TSA agent to do something they should be doing anyway: reporting evidence of criminal activity to law enforcement.

The OIG determined that registering a TSA Security Screener as a CS violated DEA policy, which precludes registering as a CS “employees of U.S. law enforcement agencies who are working solely in their official capacity with DEA.” The OIG also found that TSA Security Screeners are obligated to report to law enforcement suspected criminal activity that they observe in the course of their duties. Therefore, by registering a TSA Security Screener as a CS, the DEA agreed to pay for information that the screener was already obligated to provide to law enforcement.

So, that's misuse of funds. Now we get to the reason the DEA felt compelled to throw tax dollars at a fellow government employee.

The OIG further determined that asking the TSA Security Screener to notify the DEA of passengers carrying large sums of money in exchange for a reward based on money seized by the DEA violated the DEA’s interdiction manual, and could have violated individuals’ protection against unreasonable searches and seizures if it led to a subsequent DEA enforcement action.

Judging from the DEA's enthusiasm for confiscating cash from travelers, it's highly unlikely this is a unique arrangement. This one just happened to get exposed.

For those of you playing along at home by counting your remaining tax dollars, there is an upside: the DEA is apparently so inept at choosing confidential informants that no money ever exchanged hands (from the DEA to the TSA screener or, it would seem, from travelers to the DEA).

While the OIG concluded that the DEA violated its policies by registering the TSA Security Screener as a CS and by offering the screener a reward for money seized based on information he provided, the OIG found that the TSA Security Screener did not provide DEA any actionable information while a CS, and was not paid any money by the DEA. The CS was deactivated for inability to provide any useful information.

This short summary shows the DEA's real interest is in cash seizures, not eliminating drug trafficking. It's so obsessed with the immediacy of cash forfeitures that it's willing to cut other government employees in on the deal. The incentives are already severely perverted. Drafting a security screener as a Junior G-Man on a contingency basis shifts that person's focus from airline security to eyeballing carry-on baggage for non-threatening cash. This partnership makes each participant weaker and we, the taxpayers, are paying for both.

Filed Under: asset forfeiture, cash, dea, tsa

DEA Loses Big Drug Case, Thanks To Illegal Wiretap Warrants Prosecutor Calls 'Procedural Errors'

from the self-inflicted-wounds-all-someone-else's-fault dept

The DOJ's counsel warned the DEA that its illegal wiretaps would get them into trouble.

"It was made very clear to the agents that if you're going to go the state route, then best wishes, good luck and all that, but that case isn't coming to federal court..."

"They'd want to bring these cases into the U.S. Attorney's Office, and the feds would tell them no (expletive) way," a former Justice Department official said.

But the DEA persisted, because it had a man [read: magistrate judge] on the inside. Judge Helios Hernandez, a state-level judge, approved five times as many wiretap warrants as any other judge in the country, acting as a rubber stamp for the DEA and the California law enforcement agencies it collaborated with. The DEA should have been running these warrant applications through a federal judge, but it seemed much happier with this arrangement.

The highly-questionable wiretap warrants have finally started to cause it problems. Brad Heath and Brett Kelman of USA Today -- the journalists who uncovered the massive, illegal wiretap program -- are now reporting that one of the faulty warrants has just cost the DEA a year's worth of surveillance efforts and, quite possibly, a significant amount of seized assets.

Federal drug agents spent months watching a tiny California jewelry store sandwiched between an auto parts shop and an apartment house with bars on its windows. They secretly recorded its owner’s phone calls and intercepted couriers carrying away boxes full of cash, sometimes stuffed with $100,000 or more. For more than a year, they gathered evidence that the store was laundering millions of dollars for drug traffickers.

[...]

Prosecutors determined that wiretaps the U.S. Drug Enforcement Administration used as the core of its investigation were illegal and couldn’t be used in court. Four suspects went free, and they want the government to give back nearly $800,000 drug agents seized.

The problem with the warrants used in this case were numerous. First, many of the suspects were prosecuted in San Bernardino while the wiretap warrants themselves were issued by the friendly courts in Riverside. On top of that, the warrants -- which were supposed to be signed only by a top prosecutor -- were signed by lower-level lawyers. This practice ran afoul of a restriction enacted in response to the FBI's abuse of wiretaps to surveil civil rights leaders in the 1960s.

Because Riverside District Attorney Paul Zellerbach rarely felt the need to comply with this restriction, hundreds of granted warrants are equally suspect. More cases are likely to be tossed in the future. Defense lawyers as far away as Kentucky and Oregon (where Riverside-granted warrants were deployed) are taking a closer look at the government's paperwork.

The most ridiculous reaction has come from the head of the office that just saw all of its evidence tossed. According to San Bernardino's top prosecutor, illegal wiretap warrants are no big deal -- certainly not worthy of having a yearlong investigation nullified.

“These people were dealing in drugs, and they are guilty, and because of a procedural issue and a suppression motion, they got away with it,” said Mike Ramos, the district attorney in San Bernardino, Calif., whose office prosecuted the case.

Man, those "getting away with it" grapes look incredibly sour. For many years, it has been the DEA and local law enforcement "getting away with it." These "procedural errors" never seemed to concern the agencies that used illegally obtained evidence to put people in prison. It's not until one gets away that anyone expresses an opinion on hundreds of illegal wiretap warrants. And the statement that's delivered isn't one of regret or contrition, but one of resentment that "guilty" people can also benefit from "procedural errors."

Filed Under: 4th amendment, dea, helios hernandez, riverside, san bernardino, warrants, wiretaps

Inspector General's Report: Still Lots Of Problems At DOJ Agencies, Who I Now Have To Ask For Permission To See Documents

from the the-overseen-now-run-the-oversight dept

The DOJ's Inspector General Michael Horowitz has a thankless job. His office must look into improper actions by a variety of government agencies that have no interest in being independently overseen, much less inspected generally. The DEA and FBI have both played an instrumental part in undermining his investigations -- so much so that Horowitz has taken his complaints to Congress and suggested legislators punch the unhelpful agencies right in the pocketbook.

The OIG has just released its semi-annual report for 2015, which sums up the highlights and lowlights of six months of investigations. There's more bad news than good, but that's to be expected considering a) the Inspector General is supposed to look into the DOJ's problems, not its heroics and b) the DEA, FBI et al haven't improved their attitude toward being inspected/implementing OIG recommendations.

Case in point on the last one:

The FBI has always received data "tipped" by the NSA from the Section 215 collection. During the same period (2007-2009) the NSA was getting chewed out by FISC Judge Reggie Walton for its abuse of the program, the FBI was having its own issues. IG Horowitz wasn't able to look into this as quickly as he wanted to because the FBI stonewalled him, refusing to grant access to pertinent documents. Horowitz hoped to get to the bottom of this before the Patriot Act reauthorization came up in May, but was unable to.

However, he was able to put the following together. The FBI had put inadequate minimization procedures in place back in 2006, shortly after another Patriot Act reauthorization. The OIG told the FBI to update its procedures in 2008, in order to comply with the reauthorization. The FBI got right on it.

Nevertheless, the OIG found that by mid- 2009, DOJ had not replaced the interim procedures, and FISA Court judges began to issue Supplemental Orders in Section 215 matters requiring DOJ to report to the FISA Court on the implementation of the interim procedures. The Attorney General ultimately adopted final minimization procedures in March 2013.

Which lead the IG to this obvious conclusion:

Given the significance of minimization procedures in the Reauthorization Act, the OIG does not believe that DOJ should have taken until 2013 to meet this statutory obligation.

That's basically seven years of the FBI using minimization procedures that did not meet statutory requirements. (The Patriot Reauthorization Act of 2005 went into effect in March of 2006.)

The OIG is still looking into other aspects of the FBI's participation in the Section 215 program, but any conclusions it draws will be of historical interest only now that the program is officially dead. These are listed in the "Ongoing Work" section.

The FBI’s use of Section 215 authority under the FISA from 2012 through 2014, including the effectiveness of Section 215 as an investigative tool and the FBI’s compliance with the minimization procedures DOJ approved and implemented in 2013.

The FBI’s use of information derived from the National Security Agency’s (NSA) collection of telephony metadata obtained from certain telecommunications service providers under Section 215 of the Patriot Act.

The FBI isn't the only DOJ agency partaking in broad surveillance efforts. The DEA is also collecting tons of data and information without a warrant.

The DEA’s use of administrative subpoenas to obtain broad collections of data or information, including the existence and effectiveness of any policies and procedural safeguards established with respect to the collection, use, and retention of the data.

Other works-in-progress include an examination of the ATF's confidential informant program, the DEA's handling of drug seizures, nepotism and favoritism at the US Marshals Service, issues with the Bureau of Prisons' private contractors and an investigation of the ATF's controversial "Storefront" program, which has taken heat recently because of agents' decisions to turn intellectually-disabled people into shills for fake drug/weapon sales operations before arresting them for their "complicity."

But all of this won't lead to much unless Congress acts to roll back a DOJ policy backed by an Office of Legal Counsel decision.

In particular, in July, DOJ’s Office of Legal Counsel (OLC) issued its opinion, 14 months after it was requested by the then Deputy Attorney General (DAG), which found that Section 6(a) of the IG Act does not entitle the OIG to obtain independent access to grand jury, wiretap, and credit information in DOJ’s possession that is necessary for the OIG to perform oversight of DOJ. Indeed, the OLC opinion concludes that such records can only be obtained by the OIG in certain—but not all—circumstances through disclosure exceptions in specific laws related to those records.

[...]

The OLC opinion also provides that, in all instances, DOJ employees will decide whether access by the OIG is warranted— placing agency staff in the position of deciding whether to grant, or deny, the Inspector General access to information necessary to conduct its oversight. Requiring an Inspector General to obtain permission from agency staff in order to access agency information turns the principle of independent oversight that is contained within the IG Act on its head.

This won't just make it more difficult for the OIG to do its job. It will also discourage DOJ employees from coming forward with information about abuse and misconduct.

Such a shift in mindset could deter whistleblowers from directly providing information to Inspectors General about waste, fraud, abuse, or mismanagement because of concern that the agency may later claim that the disclosure was improper and use that decision to retaliate against the whistleblower.

I'm sure the DOJ feels there's no problem on its end as it pertains to this new policy. But independent oversight is one of the few things standing between DOJ components and incredible amounts of misconduct and abuse. There's far too much power vested in these agencies and the OLC has made it even easier for them to abuse this power and get away with it.

Filed Under: dea, doj, fbi, inspector general, oversight

DEA Seized $262k From Sexting Extortioners And Now The Oldest Private College In West Virginia Wants Its Money Back

from the what-a-tangled-web-we-weave-when-first-we-engage-with-multiple-federal-agencies dept

The oldest private college in the state of West Virginia has a shot at getting back hundreds of thousands of dollars seized by the DEA, thanks to a recent decision by a federal judge. In very few cases do plaintiffs in asset forfeiture cases even get to make an attempt to retrieve seized money. In no other case but this one does the story begin like this [h/t Eric Goldman]:

This case arose from the collision of “sexting,” extortion, embezzlement, drugs, and most importantly, the administrative forfeiture of illicit funds under 21 U.S.C. § 881 and 19 U.S.C. §§ 1602-1619.

Shelly Lough was an employee of Bethany College, working as a cashier in the school's business office. She began an affair with Jason Weese, which apparently involved some sexting. Six months after this relationship began, Weese partnered up with his wife Rachaelle (going beyond the normal expectations set down by marriage vows) to use Lough's photos against her.

They told Lough that they would send the messages and photos to her husband, family, employer, and other authorities. Then the threats became violent. The Weeses told Lough that they knew where she lived and what vehicles her children drove. The Weeses threatened to burn Lough’s house down and to harm her husband. As the threats escalated, so too did the amount of money the Weeses demanded. In total, Lough embezzled $837,398.52 from Bethany to pay the Weeses.

Bethany College opened an investigation in August of 2013 after noticing $500,000 in "accounting discrepancies." The police were brought in. Detectives spoke to Lough, who admitted taking that (and much more) to pay the Weeses to keep them from distributing the intimate photos. The police turned this over to the FBI, who arrested the marital partners in crime in March of 2014.

MEANWHILE, AT ANOTHER FEDERAL AGENCY:

Before the Weeses’ extortion scheme was uncovered, the DEA began investigating Jason and Rachaelle Weese in October 2012. The DEA suspected that the Weeses were operating a marijuana “grow house” in their residence in East Liverpool, Ohio. Officers obtained a search warrant for the house and executed the search on March 19, 2013. The officers did not find a grow operation, but did find marijuana distribution paraphernalia. The officers also searched the Weeses’ safe, finding 169 grams of marijuana and $262,020.00 in United States currency (“the Currency”). The officers seized the Currency and determined that it was the proceeds of the Weeses’ drug activities.

Lough testified that the money she turned over to the Weeses was obtained from a local bank and could be identified by the branded bands (initialed by bank employees). Indeed, a post made to Rachaelle Weese's Facebook page by Jason Weese showed just such a band, along with a several $50 bills. The investigator in the extortion case confirmed Lough's assertions and the content of the Facebook post.

The DEA, however, noted the money it seized were stacks of smaller bills held together with rubber bands. It also pointed out that the money appeared to have come from the Weese's "drug operation" and that neither one of the Weeses could come up with a legitimate source for the $260,000.

As is the normal procedure for forfeitures, the DEA posted a notice on forfeiture.gov for the alotted 30 days, and sent out notices to the Weeses. After the notices expired, the DEA took the money and distributed it to itself and participating local law enforcement agencies.

Bethany College, obviously, had no idea this money had been seized by the government, much less for reasons entirely unrelated to its embezzlement investigation or the FBI's extortion investigation. By the time it contacted the DEA about the funds, the money was gone.

The government argued (at least on behalf of one of its agencies) that the DEA had no reason to believe the money came from anything but the nonexistent marijuana grow operation it didn't find. According to its officials, the $262,000 came from the Weeses' low-level "trafficking" operation, as supposedly evidenced by the one-third pound of marijuana and paraphernalia recovered.

Bethany contested this assertion, entering enough evidence to make the DEA's assertions questionable.

To that end, Bethany submitted enough evidence for a reasonable jury to find that the Currency belonged to Bethany. Lough confessed to giving the embezzled funds to the Weeses. Some of Lough’s payments were in smaller bills while other payments were in larger bills wrapped in WesBanco bands. Jason Weese posted a picture of crisp $50.00 bills on Rachaelle Weese’s Facebook page with a WesBanco band later identified by the issuing bank teller as being issued to Bethany. Jason and Rachaelle Weese admitted that the Currency came from the proceeds of their extortion. Further, the Weeses concealed the true source of the Currency from the DEA in the course of its investigation. Based on this evidence, a reasonable jury could certainly conclude that the Currency came from the proceeds of the Weeses’ extortion and Lough’s embezzlement from Bethany. Thus, a reasonable jury could find that Bethany had an interest in the Currency.

The government also argued there was no way the DEA would have uncovered the true source of the money it had seized. According to the government, the drugs and paraphernalia found at the Weeses' home was enough to support its contention that all of the funds it took were the proceeds of drug sales. This apparently makes any evidence produced after the fact completely irrelevant, even if the DEA's justification for the seizure was shaky to begin with.

Bethany argues that, based on the relatively small amount of marijuana found, it is unlikely that the Weeses had accumulated over $260,000.00 from street-level drug dealing. Further, the DEA looked at Jason’s Facebook page, but did not look at Rachaelle’s, which would have revealed a picture of $50.00 bills with a WesBanco band, later identified as having been issued to Bethany. Instead, Bethany argues, the DEA focused its investigation almost entirely on Jason and unjustifiably assumed that the Currency was the proceeds of the Weeses’ drug dealing.

Again, the judge finds Bethany's arguments to be persuasive enough to grant it permission to move forward in its challenge of the DEA's seizure.

Viewing the record in Bethany’s best light, this Court concludes that a reasonable jury could find that the DEA should have known, based on its investigation, that the Currency was not the proceeds from the Weeses’ drug sales. Further, a reasonable jury could find that a continued investigation into the Currency’s source could have revealed that it belonged to Bethany. Therefore, this Court finds that there is a genuine issue of material fact as to whether the DEA reasonably should have known of Bethany’s interest in the Currency, and this Court denies the government’s motion for summary judgment as to this issue.

The court does grant the DEA summary judgment on the "actual knowledge" aspect, but is not convinced the agency has an open-and-shut case when it comes to the other issues. Bethany College can, for now, fight the uphill battle to retrieve a portion of the funds taken from it -- first by Shelly Lough, then by the Weeses and finally, by the DEA.

Filed Under: asset forfeiture, dea, extortion, fraud, jason weese, money, rachaelle weese, scams, sexting, shelly lough
Companies: bethany college

California Police Used Illegal Wiretap Warrants In Hundreds Of Drug Prosecutions

from the all-aboard-the-suppression-train dept

Earlier this month, Brad Heath and Brett Kelman of USA Today reported that the DEA was running a massive amount of wiretap applications through a single judge in Riverside County, California. Judge Helios Hernandez has signed off on five times as many wiretap warrants as any other judge in the United States.

The DEA, being a federal agency, is supposed to be running its wiretap warrant applications past federal judges, rather than county judges, but has seemingly found itself a very willing participant in its southern California surveillance dragnet.

The DOJ isn't particularly thrilled with the DEA's warrant funneling. A handful of unnamed federal proecutors stated the agency had been previously warned that its use of a local court meant there was little chance the DOJ would offer its blessing for prosecution at the federal level. Notably, the DOJ legal staff wasn't concerned enough about the potential illegality of the DEA's actions to stop it from routing everything through Hernandez's courtroom. They were only irritated enough to tell the DEA to keep its tainted evidence out of federal courts.

So, a federal agency has already been exposed as participating in likely illegal activity related to one of the most intrusive surveillance options it has at its disposal. Now, Heath and Kelman are back with more bad news from Riverside. It's not just the feds. It's also the locals.

Prosecutors in the Los Angeles suburb responsible for a huge share of the nation’s wiretaps almost certainly violated federal law when they authorized widespread eavesdropping that police used to make more than 300 arrests and seize millions of dollars in cash and drugs throughout the USA.

The violations could undermine the legality of as many as 738 wiretaps approved in Riverside County, Calif., since the middle of 2013, an investigation by USA TODAY and The Desert Sun, based on interviews and court records, has found. Prosecutors reported that those taps, often conducted by federal drug investigators, intercepted phone calls and text messages by more than 52,000 people.

This 4th Amendment-violating joint task force involved local cops, federal agents and a very complicit District Attorney's office. As Heath and Kelman explain, changes made to federal law in the 1960s (and upheld by the Supreme Court in 1974) as a response to the exposure of the FBI's secret surveillance of civil rights leaders require the government to obtain authorization from the presiding DA before heading to court with a wiretap warrant request.

However, in Riverside County, home to 20% of the nation's approved wiretap warrants, this approval process was frequently delegated to the DA's underlings. Former DA Paul Zellerbach -- who presided over the massive increase in Riverside County wiretap applications -- rarely performed this task himself.

Despite a federal court ruling that only the district attorney himself should usually approve wiretaps, Zellerbach said in two interviews over the past month that he could not recall having reviewed or personally authorized any of the county’s wiretap applications and said he was unaware of the details of the requests. Instead, he said, he delegated that job to one of his assistants.

“I didn’t have time to review all of those,” Zellerbach said. “No way.”

A 2013 Ninth Circuit Appeals Court decision says Zellerbach (and other DAs) can delegate this authority, but only when the District Attorney isn't physically available ("absent") and designates someone to act in their place. For Zellerbach, this exception was the rule. His delegation of the approval process often occurred while he was present in his office, as Heath and Kelman discovered.

[R]ecords show Riverside prosecutors routinely requested wiretaps on days when he was working. Federal court records show prosecutors applied for five wiretaps Feb. 18, 2014, for example, when Zellerbach appeared at a news conference to talk about metal thefts. The next week, prosecutors applied for nine more wiretaps on a day when Zellerbach’s office posted a photo on Twitter of him meeting with a delegation of Chinese officials in his office conference room. In each case, reports by the federal court administrative office list [Assistant DA Jeffrey] Van Wagenen, not Zellerbach, as the person who approved the surveillance.

Not only has the DEA been acquiring wiretap warrants in a way that makes the cases too toxic for the DOJ to pursue in federal court, but the apparently illegality of the District Attorney's actions should make the cases toxic anywhere. Any evidence obtained directly or indirectly from the wiretaps could easily be suppressed. The fact that so many warrants lead back to a single judge and a single DA's office means defendants shouldn't have too much trouble determining whether this apparently illegal surveillance helped build a case against them.

The DOJ may be unwilling to do anything more than publicly (but anonymously) express its disgruntlement, but at least the district attorney's office is in new hands. The new DA (Mike Hestrin) has aligned his officer's wiretap policy with the 9th Circuit Court's ruling. He has said, however, that he will defend his predecessor's wiretap orders if they are challenged in court.

Filed Under: california, dea, riverside, warrants, wiretaps

Judge Pushes Burden Of Proof Back On DEA Agents Who Seized $11,000 From Traveling College Student

from the recreational-drug-use-is-not-the-same-thing-as-drug-trafficking dept

This could be fun.

Last February, DEA agents took $11,000 from college student Charles Clarke. The funds were to be used to continue his education. The DEA, however, had other plans for the money.

Deciding that Clarke's one-way ticket, odor of marijuana smoke and the inability to instantly prove all of the $11,000 was obtained legitimately, the DEA seized it. Good thing it did, considering there were 13 law enforcement agencies expecting a percentage of the take.

Clarke was initially charged with assault because he struggled to prevent DEA agents from separating him from the cash he says he spent five years saving. That charge was dropped. No other charges were brought. No contraband or weapons were found on his person.

In asset forfeiture cases, those whose property has been seized by the government must challenge the seizure and provide proof of its legitimate origin. All the government has to do to keep the money is wait the challenge out. In a large percentage of cases, the seizure is never contested. The government has unlimited resources. Those challenging forfeitures do not. In fact, they have even less to work with, thanks to the government's prior actions, and fighting seizures can be incredibly expensive.

Fortunately for Clarke, a judge has flipped the script.

Clarke’s lawyers asked for documents from the government with the intent to prove there are constitutional problems with the practice and that it gives police a profit-driven motive to seize property and funds.

The U.S. attorneys were not able to give all the documents to Clarke’s team and so they took the issue up with Judge Bertelsman. He decide to split the case into two parts:

First; the U.S. attorneys have to prove they have grounds to keep Clarke’s money. I.e., they have to prove that Clarke made the money from drug dealing.

Second; if the government proves the money came from drugs, Clarke’s team will have to argue against the issue of civil asset forfeiture itself. I.e., arguing that the practice is profit-driven or worse.

The burden of proof has been shifted back to where it always should have been, especially when seizures continue without accompanying criminal charges. The government can no longer simply claim Clarke's ticket, odor and lack of receipts are indicative of illegal activity. It has been ordered to show its work. This will be difficult because, given the lack of charges against Clarke, it most likely has nothing to present to the judge in the way of evidence.

If it somehow manages to round up some evidence proving its "guilty money" theory, it's still not in the clear. It will then have to defend the idea of civil asset forfeiture if Clarke's lawyers sufficiently demonstrate to the court the program's nasty side effects.

But it's the first part that's the most important. Given the fact that government agencies can seize property without securing convictions, orders like this one force the government to come up with better evidence than "one-way ticket" or "marijuana odor." The DEA must now find some way to connect the money it took to criminal activity, something agencies that participate in forfeiture programs don't have much experience in doing.

Filed Under: asset forfeiture, asset seizure, burden of proof, charles clarke, civil asset forfeiture, dea

DEA Boss Joins FBI In Declaring 'Ferguson Effect' To Be A Real Thing; Offers Up 'Stuff I Heard' As Evidence

from the Exhibit-A:-Hearsay,-Conjecture,-Guys-At-The-Coffee-Shop dept

Late last month, FBI head James Comey contributed to the "Ferguson Effect" mythmaking, blaming unexplained spikes in violent crime on… citizens filming police officers. His argument? Officers fear for their power and no longer feel like exiting their vehicles to do their job.

A rebuttal from Comey's former boss, Eric Holder, arrived shortly thereafter.

"I don't agree with the comments that he's made about, or the connection he's drawn, between the so-called 'Ferguson effect' and this rise in crime," Holder said, adding that Comey seemed to be relying on anecdotes rather than data.

"You can't base policy on anecdotal evidence," Holder said. "It's hard for us to understand why crime dropped to historic lows over the last 40 years. I think it's probably equally difficult -- or even more difficult -- to explain why crime has gone up in some places, violent crime has gone up in some places, over the past 12 months. But I don't think it's connected to the so-called Ferguson effect."

But anecdotal evidence works best when actual evidence is lacking. The same can be said for the "War on Cops," which has been cobbled together using a regression to the mean following a historic low (2014) and a random smattering of social media posts about "putting wings on pigs," etc.

James Comey remains resolute that this "effect" is leading to spikes in crime (themselves possibly a regression to the mean after years of historic lows). Now he has another federal ally in the "War on Logic."

Chuck Rosenberg, head of the U.S. Drug Enforcement Agency, said Wednesday that he agrees with FBI Director James Comey that police officers are reluctant to aggressively enforce laws in the post-Ferguson era of capturing police activity on smartphones and YouTube.

“I think there’s something to it,” Rosenberg said during a press briefing on drug statistics at DEA headquarters in Arlington. “I think he’s spot on. I’ve heard the same thing.”

Rosenberg doesn't offer any evidence to back up his belief. Neither does Washington Post writer Todd C. Frankel, who inexplicably follows Rosenberg's baseless assertion with one of his own.

The comments offer more support for the theory that, faced with increased scrutiny, the nation’s police officers are pulling back.

No, they don't. Evidence that isn't strictly anecdotal or suffering from correlation/causation issues would "offer more support" for the "Ferguson Effect" theory. Another law enforcement official saying he's heard some stuff does not offer any additional support for this law enforcement theory.

In fact, Rosenberg spends more time hedging his assertion than defending it.

Rosenberg allowed that while he’s “not entirely sure what’s going on” with the sporadic increases in crime seen in some places, he believes “we should talk about it.”

If Rosenberg and Comey want to "talk about it," they have to stop excluding the general public from the discussion. They need to stop publicly pushing narratives backed by nothing more than the vague unhappiness of law enforcement agencies that are no longer viewed as faultless pillars of their respective communities.

And as long as these two are "talking" about it, they might want to check in with the rest of the government. The recently-departed DOJ head said the "Ferguson Effect" is bogus. So did the White House.

“Mr. Rosenberg is the second administration official to make that kind of claim without any evidence,” press secretary Josh Earnest told reporters.

"The fact is, the evidence does not support the claim that somehow our law enforcement officers all across the country are shirking their duties and failing to fulfill their responsibility to serve and protect the communities to which they are assigned.”

What should be an insult to cops everywhere is instead being used by law enforcement agencies as a FUD delivery vehicle. The nation is already suffering from a rift between its citizens and its law enforcers. Comey and Rosenberg are making the situation worse by driving a wedge between their agencies and the White House. The instinctual move to blame any increase on crime on a loss of faith in law enforcement feeds into the Us vs. Them mindset that created the problem in the first place.

Filed Under: chuck rosenberg, crime rates, dea, eric holder, ferguson effect, james comey, police

DEA Running Massive Wiretap Program Almost Entirely Through A Single California County Courthouse

from the behold,-the-Machine! dept

The DOJ has been instrumental in curbing abuse and misconduct by local law enforcement agencies around the nation. Its own backyard, however, remains a complete mess.

The FBI and DEA have been obstructing investigations by the DOJ's Inspector General for several years now. The DOJ only just recently got around to addressing the widespread warrantless use of Stingray devices by both of these agencies. DEA agents are hooking up with prostitutes at "sex parties" while on the clock and receiving bonuses rather than suspensions or pink slips. The US Marshals Service has been acting as a law unto itself, confiscating cell site simulator records to keep them out of the hands of FOIA requesters, flying its own airborne cell tower spoofers and blowing asset forfeiture funds on $10,000 conference room tables.

Now this, as uncovered by Brad Heath and Brett Kelman of USA Today:

Federal drug agents have built a massive wiretapping operation in the Los Angeles suburbs, secretly intercepting tens of thousands of Americans' phone calls and text messages to monitor drug traffickers across the United States despite objections from Justice Department lawyers who fear the practice may not be legal.

The chain of command for the DEA runs UP to the DOJ, not vice versa, as would be suggested from this paragraph. The DEA apparently isn't too concerned its parent agency's own lawyers find its actions potentially illegal. It's going to do what it's going to do because drug wars don't fight themselves.

The DEA is getting away with it because it has its own "connect" in Riverside County. There's no telling how much venue shopping resulted in this bit of serendipity. All that matters are the results.

Nearly all of that surveillance was authorized by a single state court judge in Riverside County, who last year signed off on almost five times as many wiretaps as any other judge in the United States. The judge's orders allowed investigators — usually from the U.S. Drug Enforcement Administration — to intercept more than 2 million conversations involving 44,000 people, federal court records show.

This massive amount of surveillance -- stemming almost entirely from a single judge and his presumably overactive wrist/writs -- is problematic. More so are the numerous explanations offered up by officials for this gaping surveillance portal d/b/a Judge Helios Hernandez's courtroom. Hernandez's enthusiasm for issuing wiretap warrants to the DEA may have something to do with his history as a narcotics prosecutor. But for the record, he's offering the following justification for his actions.

Hernandez declined to comment through a spokesman.

The DEA offered this clarification.

Hernandez approved 20 times as many wiretaps as his counterparts in San Bernardino County. DEA officials said they could not explain that difference.

More details were provided by Deena Bennett, who heads the DEA's wiretap unit.

Bennett, a one-time contestant on the reality show Survivor, rebuffed attempts to contact her, telling a reporter that "the fact that you have my cellphone number is really harassment, and I'm going to report it."

The DOJ's lawyers, however, have more to say on the issue. For one, the DOJ believes these warrant requests should be routed through federal courts, rather than state courts, considering they cover violations of federal law and, more importantly, the standards the DEA needs to meet to obtain warrants are higher.

The DEA has used warrants issued by a California county judge to chase down suspects as far away as Virginia and New York. It's also engaged in parallel construction to cover its tracks, something the DOJ is now investigating. What little the DEA had to say in its defense was that it preferred to seek warrants in areas where it feels more intercession is needed and, most tellingly, where it can perform "most effectively."

Because it has cut federal courts out of the warrant process, the DEA is likely not showing it has exhausted other investigatory options before asking for intrusive wiretaps. The DOJ's displeasure with the DEA's actions means the resulting prosecutions will almost never make their way into federal courts.

"It was made very clear to the agents that if you're going to go the state route, then best wishes, good luck and all that, but that case isn't coming to federal court," a former Justice Department lawyer said.

Or more succinctly:

"They'd want to bring these cases into the U.S. Attorney's Office, and the feds would tell them no (expletive) way," a former Justice Department official said.

The troubling implication of these statements is that while the DOJ's legal counsel may have expressed its displeasure at the DEA's surveillance overreach, it apparently never stepped in to fix the issue. It simply told the DEA to take its tainted cases elsewhere.

On top of that, the DEA seemed far more interested in simply taking stuff from suspects rather than locking them up.

[D]EA agents and local detectives in South Gate, Calif., near Los Angeles, used a state-court wiretap to target a man named Omar Salazar, who the DEA suspected was tied to a Mexican drug trafficking group. Between searches of Salazar's car and his house, officers seized $76,869.94, a gun and a cache of illegal drugs, including 36 pounds of methamphetamine and 5 pounds of heroin. Investigators found some of the drugs in a safe in Salazar's garage, along with a box of ammunition and probation paperwork from one of his previous arrests.

That should have been enough to build a significant federal case with a long mandatory prison sentence, but that was not what happened. Court records show the Justice Department prosecuted the $76,869.94 in a civil asset seizure case. But it did not prosecute Salazar.

The DOJ and local prosecutors probably had nearly 77,000 reasons for abandoning Salazar's prosecution. Here are none of them.

Neither the DEA nor prosecutors would explain why.

Sounds about right. They probably weren't expecting to ever answer questions about their actions… at least not questions posed by journalists. As for the DOJ, it make be making angry noises about its troublesome drug enforcement child but it has not shown any willingness to rein the agency in. The problem isn't going to fix itself and it appears the DEA's perfectly fine with running its prosecutions through state courts and using warrants from local courts to pursue suspects all over the nation. The DOJ needs to flex a bigger muscle than its tongue if anything's going to change.

Filed Under: 4th amendment, dea, doj, helio hernandez, riverside, wiretapping

DEA Agents Caught Soliciting Prostitutes Rewarded With Light Punishments, Bonus Checks

from the saving-throw-on-'integrity-check'-fails dept

At the end of September, Brad Heath and Meghan Hoyer of USA Today published a DEA disciplinary log they'd obtained through an FOIA request. The document was obviously misnamed, as it showed plenty of misconduct by DEA agents, but not much in the way of discipline.

Damning, yes, but apparently we still haven't scraped the bottom of the DEA's disciplinary barrel. The DOJ's Inspector General, Michael Horowitz, has released a new report on DEA misconduct -- specifically dealing with the DEA agents who were caught soliciting prostitutes, engaging in "sex parties" and harassing local employees while working overseas.

None of the 14 agents involved lost their job. Two still remain at their overseas posts and the rest (with the exception of one retiree) are still working as agents or supervisory agents. Apparently, DEA misconduct pays pretty well. (h/t PoliceMisconduct.net)

Although none of the 14 individuals received promotions, we found that in 10 instances, 8 employees received bonuses, awards, or other favorable personnel actions, contrary to DEA policy.

The agency's policy states that agents under investigation are not entitled to collect bonuses for three years after being disciplined for "serious misconduct." Any agent seeking advancement/bonuses must be subjected to an "integrity check" by the DEA's HR department to ensure they are not currently under investigation or subject to other disciplinary actions. If the agent fails to clear the "integrity check," the information is passed on to the Chief Inspector, who has the power to override the three-year waiting period.

Exceptions were made. But the Inspector General's office is damned if it can figure out why.

The eight employees who received awards were subjects in an ongoing OPR investigation in which the offenses involved integrity and/or sexual harassment issues, with some of the employees serving as supervisors and managers. In many instances, we could not determine the reason why exceptions were made and we were unable to determine when, or if, an integrity check was performed, the results of the integrity check, or the reason for the approval of the proposed personnel action, because the DEA was unable to provide the OIG with complete documentation.

IG Horowitz is very familiar with the DEA's reluctance to provide documentation. He took his battle with the DEA and FBI over the release of pertinent information to Congress, sailing over the head of the DOJ. In a letter to a Congressional committee, Horowitz threatened these agencies' budgets by pointing out to legislators that the DOJ components are not allowed to use their funding to thwart their oversight.

But the DEA may have a not-very-legitimate excuse for not handing over documents. It apparently doesn't care much for recordkeeping, even when it involves a regional supervisor who "failed" to report his underlings' hiring of prostitutes and brothel patronage.

The DEA also told us that it was unable to provide us with any documents that reflect when the counseling session occurred with the Regional Director, the DEA Administrator, and the Deputy Administrator, or what matters they discussed. Given the gravity of the allegations, and the importance of keeping records related to misconduct reviews, we are concerned that the DEA was unable to provide any written documentation confirming that the counseling occurred and the substance of the counseling.

This official -- who was apparently given an undocumented tongue-lashing -- landed a $12,000 bonus. This was his reward for covering up the misconduct of his agents.

A Supervisory Special Agent who did nothing to prevent "sex parties" with prostitutes from occurring at DEA offices (arranged by local law enforcement officials) was given three bonuses totalling $8,500 -- all while still under investigation.


In the private sector, soliciting prostitutes while on the clock is a good way to get yourself fired. In the DEA, where integrity is a must -- considering the constant temptation of money and drugs -- it's barely worth a two-week suspension. Most agents saw single-digit suspensions, while others only received "letters of caution." And a regional director overseeing all of this received nothing but an alleged, completely undocumented verbal rebuke. At the DEA, the only thing better than the lack of serious discipline is the bonus checks agents receive while still under investigation.

Filed Under: bad behavior, dea, punishment

FOIAed DEA Disciplinary Action Log Shows Very Little Discipline, Lots Of Inaction

from the cleaning-the-agency-up,-one-cautionary-letter-at-a-time dept

The DEA, like countless other law enforcement agencies across the nation, doesn't take employee misconduct too seriously. Perhaps upper management feels that drug warring is a tough, dangerous job and that any violations of policies/state/federal laws or other impropriety should be met with little more than a short, stern conversation and promises from agents that it won't happen again.

Brad Heath and Meghan Hoyer of USA Today have secured a log of DEA disciplinary actions via a FOIA request. What it shows is a lot of wrongdoing but very little discipline and/or action.

Lawmakers expressed dismay this year that the drug agency had not fired agents who investigators found attended “sex parties” with prostitutes paid with drug cartel money while they were on assignment in Colombia. The Justice Department also opened an inquiry into whether the DEA is able to adequately detect and punish wrongdoing by its agents.

Records from the DEA’s disciplinary files show that was hardly the only instance in which the DEA opted not to fire employees despite apparently serious misconduct.

Of the 50 employees the DEA's Board of Professional Conduct recommended be fired following misconduct investigations opened since 2010, only 13 were actually terminated, the records show. And the drug agency was forced to take some of them back after a federal appeals board intervened.

The DEA's history is littered with dirty deeds: warrantless surveillance, impersonation of medical professionals to gain access to patient records, a confidential informant program that runs with almost no oversight, concerted efforts to block internal investigations, etc. The document obtained by Heath shows its agents are perfectly capable of doing the wrong thing individually as well. And in most cases, they'll receive little more than the agency's lowest level of discipline (letters of caution) as punishment.

Recommendations for punishment are handed down by the DEA's Board of Professional Conduct. Its suggestions for suitable discipline are often ignored.













One of the most horrifying recent incidents of severe misconduct by DEA employees was met with the lightest of punishments.

This spring, the Justice Department said it had “serious concerns” about the discipline meted out to six agents who left a handcuffed college student in a holding cell for five days with no food or water. Two of the agents received brief suspensions; four others were given letters of reprimand.

The DEA, of course, has excuses for its unwillingness to mete out appropriate punishments for wrongdoing.

DEA spokesman Joseph Moses said that often happens because it's not until after the Board of Professional Conduct makes its recommendations that employees get to fully present their side of the story. That can prompt human resources officials ultimately to opt for lighter punishment.

And this, from former DEA internal affairs investigator Scott Ando, who apparently believes agent misconduct should be graded on a very generous curve.

"DEA agents should be held to a high standard, but not an unrealistically high standard."

From what's in this document, it appears agents aren't being held to any standard at all. Distribution of drugs and a refusal to cooperate with the resulting internal investigation netted one agent a two-week suspension. Another's DWI arrest resulted in two days without pay. Falsification of records and theft of government funds? Five-day suspension. Failed random drug test? Also a five-day suspension.

That's not a high standard. That doesn't even meet the standards of the private sector. The last one listed is particularly odious because in most companies, a failed drug test results in immediate termination. At the DEA -- home of the "Drugs Are Bad" brigade -- a failed drug test is one workweek off without pay.

And for those who like their bad news bundled with worse news, Scott Ando -- he of the "high but not too high standard" now heads up Chicago's Independent Police Review Authority, which investigates police misconduct complaints. Presumably, Chicago cops will be held to Ando's high expectations: a standard where all the slack is pre-cut and "Of A Doubt" is listed prominently under "Employee Benefits."

Filed Under: dea, discipline, foia, misconduct