Another Trustworthy Confidential Informant Allegedly Tied To Multiple Bogus Drug Arrests

from the all's-fair-in-drugs-and-war dept

The only thing as trustworthy as a cop's testimony are statements made by confidential informants. These are used to secure warrants and, occasionally, as supporting evidence in prosecutions. Never mind the fact that confidential informants are often career criminals who carry with them the innate desire to stay out of jail.

If sworn affidavits and warrant applications are to be believed, there are no finer citizens than habitual offenders who offer their services to police officers in exchange for money and a "get out of jail free" card. The only time you can't trust an informant is when he's making statements about police misconduct or confessing that he'd lied multiple times to assist in the neverending Drug War.

A lawsuit filed in Colorado alleges that a confidential informant instrumental in the arrest of the four plaintiffs was exactly the sort of person a cop would normally expect a criminal to be, if that criminal hadn't decided to "cooperate" with Team Blue.

Four women sued the city and three of its police officers Monday, claiming innocent citizens were swept up in the late December 2013 drug busts that were based "almost exclusively on uncorroborated and untrustworthy information provided by confidential informants."

In particular, the suit names one of the (apparently, no longer very) confidential informants as being particularly toxic. On top of the fact that the bogus statements made by this CI have led to the dismissal of 40 drug-related prosecutions, this particular informant also had some serious interpersonal relationship problems.

The 53-page lawsuit draws a bead on one of the two confidential informants (CIs) police used, Crystal Bachicha, who is not a party to this case.

"In fact, three of the people who CI Bachicha had accused of selling her drugs were individuals who CI Bachicha had been charged with attempting to murder," the complaint states.

The lawsuit -- filed in conjunction with the ACLU -- notes that Bachicha was actually arrested and charged with attempted murder. Bachicha walked away from the charges, but her brother -- who was apparently involved in the attempted murdering -- is now doing time.

CI Bachicha's "pedigree" is amazing, but not in the way someone pushing warrant applications past a magistrate judge would hope.

a. CI Bachicha’s criminal record included at least three separate felony convictions and a sentence to the Department of Corrections.

b. At the time CI Bachicha agreed to become an informant and before the 2013 drug sting, she faced two additional felony counts of attempting to obtain a controlled substance by fraud or deceit, a charge in which lying is an element of the crime.

c. CI Bachicha agreed to work as a CI in return for, among other rewards, dismissal of the pending felony charges.

d. While CI Bachicha was making buys for the TPD, she was arrested in Raton, New Mexico, on yet another felony charge of attempting illegally to obtain prescription drugs by fraud, providing additional indications of her lack of reliability and credibility.

e. CI Bachicha was paid for each drug buy she claimed to have made, and the total payout to her amounted to $3,085. CI Bachicha was paid a premium for her alleged purchases from Ms. Gonzales.

The list of allegations continues with this accusation, which is simultaneously unsurprising and anticlimactic.

f. CI Bachicha has a history of illegal drug use.

The lawsuit also alleges Bachicha's handlers made only minimal efforts to ensure controlled drug buys were actually controlled. Bachicha's recollection of these purchases are short on detail and contain conflicting information about drug quantities and pricing, suggesting the CI may have been skimming cash and/or using drugs in her possession as "evidence" of purchases.

Even worse, Bachicha -- on more than one occasion -- performed physically impossible tasks for the PD.

Bachicha's claims began to unravel when she implicated two people who were in jail when she claimed they sold her drugs, according to the lawsuit - a fact the defendant police officers surely could have checked.

Bachicha also claimed to be in two places at once: "Defendants claimed that they were working with CI Bachicha and monitoring her as she sold drugs to plaintiff Vickie Vargas at the exact same time they claimed that they were working with CI Bachicha at an entirely different location to buy drugs from another individual," the complaint states.

When the police department offers its response and begins the work of defending itself against this lawsuit, it will no doubt try to rebuild the reputation of its not-so-informative informant. Most likely, it will point to the large number of arrests resulting from the CI's tips, and hope the court fails to notice the dismissal of several of them.

But this is what passes for probable cause: the statements of a drug user who would otherwise not be trusted to state their own name by the police, much less offer corroborating evidence. And yet, when these untrustworthy people begin offering their services to law enforcement, they're immediately granted a veneer of honesty they certainly haven't earned.

Filed Under: arrests, confidential informant, crystal bachicha, entrapment, evidence

DEA's Confidential Informant Program Basically Being Run With No Oversight Whatsoever

from the 'do-what-thou-wilt;-that-it-the-whole-of-the-policy' dept

DOJ Inspector General Michael Horowitz's report on the DEA's use of confidential informants has been published. (We're still an unknown amount of time away for his report on the agency's use of administrative subpoenas.) And it's still incomplete. Horowitz has been fighting the FBI and DEA every step of the way, as both agencies have proven not only unwilling to turn over needed documents, but thoroughly resistant to DOJ intervention or threats against their collective wallets.

The opening of the OIG report gives some insight into the months of DEA interference and recalcitrance.

Our audit work thus far has been seriously delayed by numerous instances of uncooperativeness from the DEA, including attempts to prohibit the OIG’s observation of confidential source file reviews and delays, for months at a time, in providing the OIG with requested confidential source information and documentation. In each instance, the matters were resolved only after the Inspector General elevated them to the DEA Administrator. As a result, over 1 year after we initiated this review, the OIG only has been able to conduct a limited review of the DEA’s Confidential Source Program.

This makes the concluding sentences of this same paragraph seem particularly hopeless.

Nevertheless, we have uncovered several significant issues related to the DEA’s management of its Confidential Source Program that we believe require the prompt attention of DOJ and DEA leadership, as identified in this report. We will continue to audit the DEA’s Confidential Source Program to more fully assess the DEA’s management and oversight of its confidential sources.

If you can't get the DEA to turn over existing documents, it's highly unlikely Horowitz's recommendations will be implemented with any expedience. The DEA has already shown complete disdain for its oversight. Putting this in print won't change that.

The problems begin with the DEA apparently cherry-picking which Attorney General guidelines it will follow when dealing with confidential sources. Rather than add the guidelines as its own section of the DEA's policies, the DEA instead chose to fold in certain recommendations. This has created two sets of policies -- the DEA's and the (supposedly overriding) AG's. It hasn't gone well… at least in terms of cohesiveness. But it has worked out perfectly if you consider "thwarting oversight" to be an essential part of drug enforcement.

The DEA’s differing policies have resulted in DEA personnel being able to use high-risk individuals as confidential sources without the level of review as would otherwise be required by the AG Guidelines for high-level and privileged or media-affiliated sources. These categories include individuals who are part of drug trafficking organization leadership, as well as individuals who are lawyers, doctors, or journalists. The AG Guidelines provide a special approval distinction for these individuals because the use of them as confidential sources poses an increased risk to the public and DEA and creates potential legal implications for DOJ. The exemption of the DEA from these requirements results in a relative lack of DEA and DOJ oversight…

And what has this lack of oversight led to? All sorts of fun stuff. The DEA has shown little interest in thoroughly reviewing its informants' "conduct authorization." By failing to stay current on what informants can commit what criminal acts, illegal activities are occurring with the implicit approval of the agency -- whether or not they contribute to ongoing investigations.

These sources may be committing not-directly-approved Otherwise Illegal Activity (OIA - yes, it's an official DEA term) for years after they've contributed to any DEA investigations. The DEA is also apparently unwilling to keep its sources' files up-to-date, meaning it could be years before the agency cuts a useless source loose. This lack of attention has resulted in DEA sources becoming the subject of other law enforcement agencies' investigations.

In some cases, the DEA continued to use, for up to 6 years without any DOJ intervention, individuals who were involved in unauthorized illegal activities and who were under investigation by federal entities.

While committing criminal acts in the service of the Drug War, these sources were also availing themselves of additional taxpayer funds -- again without proper oversight -- in the form of federal benefits.

We estimated that, in just the 1-year period from July 1, 2013, through June 30, 2014, the DEA paid 17 confidential sources or their dependents FECA benefits totaling approximately $1.034 million.

The DEA's oversight-dodging is more than just its ad hoc meshing of pertinent rules. It also involves using a completely different categorization process for its informants. Certain informants working with other federal agencies are designated "high level" and must be directly approved by the DOJ and US Attorney's Office. The DEA avoids this outside approval process by using its own rubric, which doesn't contain the "high level" designation and appears to have very flexible sitpulations. This includes policies pertaining to informants whose communications may fall under the heading of "privileged."

Other DEA headquarters’ officials acknowledged that Special Agents are permitted to establish as a confidential source a privileged or media-affiliated status individual, such as a doctor or lawyer, to obtain information not related to the source’s employment. In these cases, the DEA’s legal staff would review the proposed utilization of the privileged or media-affiliated individual to ensure there is not a breach of privilege. However, this requirement and process is not included in the DEA Special Agents Manual section on confidential sources. Thus, the DEA solely relies on the discretion and judgment of its special agents to identify occupations that necessitate additional review and seek that from DEA legal staff.

The agency's approval of Otherwise Illegal Activities is similarly flawed, again allowing the agency to avoid oversight. (As well as any perception of the DEA as a competent, well-run crime-fighting machine.) For a drug-targeting agency, it certainly takes a very hands-off approach to drug-related activity.

[T]he DEA Special Agents Manual section on sensitive activities explicitly excludes drug buys and other routine confidential source activities, and the DEA Special Agents Manual section on confidential sources does not provide detail on the process for using confidential sources to perform illegal acts such as drug buys, does not require SAC approval for larger drug deals, and does not reach smaller ones…

These inadequate DEA policies and procedures related to OIA greatly increase the risk to the DEA, the U.S. government, and the public from the involvement of DEA confidential sources in OIA. DEA confidential sources could engage in illegal activity that has not been adequately considered, or become involved in additional illegal activities beyond those that have been considered with the mistaken belief that they are doing so with the authorization of the DEA.

This lackadaisical approach is likely costing the DEA drug busts. Because it shows almost no interest in policing approved criminal activity, it could find itself struggling when attempting to prosecute former informants or their conspirators.

And its own internal oversight policies are a complete joke. No matter what the policies state, actual review of informants' files has long been nothing more than a swift rubber-stamping. Up until the OIG started looking into its confidential source program in 2012, the DEA, for the most part, spent only 15-30 seconds examining each confidential source file.


On top of all this, there's a strain of unearned credibility given to the DEA and the sources it employs by other government agencies. Despite a complete lack of documentation, claims submitted to the Department of Labor seeking compensation for injuries or death were routinely approved.

The DEA submitted and DOL accepted a claim for a confidential source who was presumably killed overseas in 1991. However, according to the file, there were no witnesses to the confidential source’s death and the source’s body had not been recovered.

The DEA submitted and DOL accepted a claim for a confidential source who was shot and injured at home in 2002. However, the file indicates that there were no witnesses to the shooting and the file contained no evidence of a link between the shooting and the individual’s status as a DEA source.

In addition, the DOL considered anything the DEA forwarded to it to be perfectly accurate, resulting in "disabled" confidential sources drawing paychecks from both the DEA and the DOL for years at a time.

Considering what's in the report, it's of little surprise the agency fought Inspector General Horowitz for as long as it did. And it's still fighting. This report is based on an incomplete survey of pertinent files. The DEA is still holding some stuff back, claiming it needs to protect the sources it can't be bothered to keep an eye on.

Filed Under: confidential informant, dea, oversight