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"Poly Wants a Cracker... will she get one... time will tell...":
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    Date: 7/28/2014

    From: "Poly"

    DETAILS: follow-up information and clarification for your reporting and dissemination

    For publication in DEA watch ASAP: Poly wants a cracker

    None of us that submitted the whistleblowers information regarding the DEA polygraph scandal expected the overwhelming response and "chatter" that this has generated within the Drug Enforcement Administration offices and the public information personnel that monitor DEA Watch at large. The letter published prudently and expeditiously by DEA Watch 7/23/2014 and addressed to members of Capitol Hill regarding this ongoing scandal within the Drug Enforcement Administration has proven prescient in its dissemination. What nobody contemplated was the response by an anonymous DEA female agent dated 7/26/2014 in an open letter to Director Comey of the Federal Bureau of Investigation requesting a formal investigation of the illegal activities of a federal agent and/or basic agent trainee. In deference to this anonymous female DEA agent we wholeheartedly concur with her request for a formal investigation of this matter and the broad scope it will encompass. The statute of limitations issues regarding current employees or employee candidates within the Drug Enforcement Administration will be determined as the investigation moves forward. However, as noted by one of the comments recently on DEA Watch the "Trojan Horse factor" must be investigated regarding this misconduct.

    In the letter to Capitol Hill members that was originally published by DEA Watch there was also attached to this letter a heavily redacted list of persons who also received copies of this letter in the CC list which was not published by DEA Watch in an abundance of caution at the time of the original letter submission for proper vetting and annotation. Given the extremely serious nature of this illegal and ethically reprehensible conduct we are re-submitting an un-redacted copy of the letter to Capitol Hill members dated 7/21/2014 in its entirety, un-redacted, to include the CC list for consideration and further commentary. The persons listed on the CC list were individually mailed copies of the letter dated 7/21/2014. These persons on the CC list have public information about them listed on the Internet and were contacted as part of a Nationwide notification. If you have not received your copy of the letter you need to contact your mailer service personnel. If you have received your copy of the letter then consider it your official notification that you have been put on notice for reporting purposes regarding the DEA Standards of Conduct requirements. Those of you listed on the CC list mayor may not have had direct knowledge about some of the issues regarding employment candidates within the Drug Enforcement Administration. We would strongly suggest that DEA employees on the CC list check their Firebrand history files to see if they in fact have any evidentiary files that may show some complicit or ancillary conduct in this rapidly unfolding scandal.

    The un-redacted letter now follows in its totality with the complete CC list:

    July 21, 2014

    The Honorable Claire McCaskill
    United States Senate
    506 Hart Senate Office Building
    Washington, D.C. 20510

    The Honorable Darrell Issa
    United States Congress
    WASHINGTON, DC 20515

    The Honorable Mitch McConnell
    United States Senate
    361A Russell Senate Office Building
    Washington, D.C. 20510

    From: Numerous Concerned WHISTLEBLOWERS at the Drug Enforcement Administration

    Subject: DEA Special Agent Candidate Polygraph ILLEGAL Hiring Misconduct Scandal

    The Drug Enforcement Administration is the worldwide premier drug law enforcement organization. The critical nexus in this mantra are the employees hired, trained, and utilized worldwide throughout their careers. The mission-critical linchpin is the screening process of potential Special Agent and administrative personnel candidates who may be handling extremely sensitive investigative information and related intelligence gathering results. Many potential selectees for these positions of trust requiring security clearances and other training have been required for many years to be subjected to a polygraph examination as a final step in the applicant hiring process for potential employee candidates. During the routine polygraph examination, there are a certain set of standardized questions and answers obtained. While the veracity and truthfulness of the information obtained during the question and answer session regarding the standardized protocols of the polygraph can be debated endlessly; that is not the problem that is being addressed in this letter.

    The critical issue being reported and requiring an in-depth investigation deals with the area of polygraph examinees self admissions obtained during a SIGNIFICANT RESPONSE(SR) to the polygraph process. It is widely known throughout all federal agencies that utilize polygraph procedures that the self admissions made by examinees can be the most revealing and IMPORTANT, when considering the fitness of a potential candidate for employment in the United States Government. These self admission revelations span the entire spectrum of criminal, civil, and moral turpitude. Subjects such as petty theft, grand larceny, animal cruelty, domestic violence, sexual misconduct, rape, illegal drug usage/sales, terroristic activities, and murder have been revealed in many government wide polygraph examination programs. Keep in mind that these DEA polygraph sessions are video and audio recorded, and corresponding DEA-6's (written reports - DEA only) are prepared to document these responses. The response to serious misconduct revelations is the CRITICAL FLAW in the DEA polygraph process!

    The following consists of a series of excerpts of several email exchanges by DEA Management Officials involved in the hiring and screening process for DEA Special Agent Applicants in February 2014, which is set forth below. These emails expose the Drug Enforcement Administration's Polygraph Unit problems located within the Office of Investigative Techno10gy(ST), which are set forth as follows and relate to potential selectee Special Agents for BAT Class 199, which started in early May 2014. SA-13-0011 (Name Redacted) is currently enrolled in BAT-199.

      In a February 5, 2014 email at 9:21 a.m. from Mary C. Toomey, GS-14, DEA Polygraph Unit, to Walter C. Morrison (Chief, Office of Special Agent HR Services (HRL) and David Battiste, Toomey wrote an email and stated that she discovered Special Agent Applicant examinees made significant admissions during their polygraphs. SA-13-0080 (Name Redacted/on file) failed "crimes" and admitted that he raped a woman in college. SA-13-0011 (Name Redacted/on file) failed "Involvement with illegal drugs" and admitted while working for (another Federal Agency) he destroyed drug evidence instance [sic] of processing it. SA-10-0422 (Name Redacted/on file) failed "involvement with terrorist activities" and admitted to making terrorist comments about putting a [sic] lED into a church. These three individuals should under no circumstances being going to Quantico. Ms. Toomey asked for clarification whether these three applicants were still be going to proceed into Basic Agent Trainee (BAT) Class 199, which was set to start in mid-May 2014.

      In a February 5, 2014 email at 10:19 a.m. from Walter C. Morrison to Raymond A. Pagliarini, David Battiste, Kevin M. Donnelly, and Patricia A. Murphy, with a copy to Diane E. Filler, entitled, "Issues with Polygraph"..., and marked "Importance: High:", Morrison wrote that the three (3) Special Agent Applicants SA-13-0080, SA-13-0011, and SA-1 0-0422, who had been approved for hire by the 1811 Hiring Panel (consisting of 3 GS-15s) and are being considered for an upcoming BAT class. Mr. Morrison wrote that he was upset that Ms. Tooney took it upon herself to review the decisions of the 1811 Hiring Panel and recomnend that previously approved SA Applicants should be removed fran consideration, because there were Significant Responses (SR) on their polygraph examinations. Mr. Morrison referred to Ms. Tooney's email as being, "far out of her lane" and that Toaney was threatening to go to her boss if these Special Agent applicants were slotted for a BAT class. Mr. Morrison also referenced fonner and now retired Deputy Assistant Administrator Fred Ganem, who used to write memorandums not recommending applicants who received an SR on the polygraph.

      Mr. Morrison then stated that he understood Ms. Tooney's concerns about the Significant Responses (SR's) on the polygraph by these applicants, but, until DEA changed their policy, "the 1811 Hiring Panel will proceed as directed by DFA Senior Management and not reject SA Applicants solely on an SR".

      In a February 5, 2014 email at 10:39 a.m. from Raymond A. Pagliarini (Assistant Administrator, Human Resources Division) to Preston Grubbs (Assistant Administrator), entitled, "Issues with Polygraph"..., and marked "Importance: High:" Pagliarini wrote, "Preston, sent this before I wrote this note. I wanted you to see this before I take It to Tommy [Harrigan] and Michele [Leonhart] This is almost the same issue that Fred G., except he didn't go this far. I know you know this will not sit well with Michele. Let me know how you want me to proceed. Thanks. Raymond A. Pagliarini, Jr."

      In a February 5, 2014 email at 10:44 a.m. from Preston L. Grubbs to Raymond A. Pagliarini and a copy to William L. Grant, entitled, "Issues with Polygraph"... Grubbs wrote, "Ray: I will handle this. I will remind my people of their specific role in the hiring process..."

      Additionally, for your review, we have included Exhibit #1 consists of the revised DEA Giglio Policy dated: May 12, 2014. Exhibit # 2 is the current DEA Policy regarding the Electronic Recording of Statements, dated: May 12, 2014.

    The above email string concerns issues with a recent DEA Basic Agent Trainee (BAT - 199) class. We encourage all interested parties to carefully review these emails, in their entirety regarding these polygraph issues and the ensuing "debate" of them. I think you will find some alarming civil and criminal misconduct in this important legal matter which goes all the way up to the Drug Enforcement Administration (DEA) Office of the Administrator, Michele Leonhart. It should be noted for the record that Michelle Leonhart became the Acting DEA Administrator in November 2007. Ms. Leonhart was subsequently sworn in as the DEA Administrator in December 2010. Throughout her tenure as DEA Administrator, Ms. Leonhart has taken it upon herself to be the final OVERRIDING authority when granting hiring or disqualified status to numerous employee candidates over the past years of her tenure as DEA Administrator.

    Many persons of various rank and authority (e.g.-Special Agents-in-Charge, Unit Chiefs, Senior Staff, Senior Special Agents etc.) inside the Drug Enforcement Administration have tirelessly tried to address their serious concerns, individually and collectively, with this egregious conduct involving these revelations revealed during assorted polygraph interviews over the past four or more years. For example, some Special Agents-in-Charge, including SAC Mark Trouville, Miami Field Division, refuse to sign Special Agent applicant packages reflecting his approval/concurrence on memorandums relative to the suitability of these applicants, because previously, on some applicant packages, his refusal to recommend a particular candidate was chastised by Preston Grubbs and Raymond Pagliarini. Basically, the Administrator has let it be known that she has the final right to decide on employment suitability and anyone disagreeing should simply keep quiet and mind their own business if they want to keep their current assignment and employment with the DEA. Many of Ms. Leonhart's decisions to hire new Special Agent candidates who would have otherwise been disqualified due to their admissions to serious criminal and felonious misconduct and Giglio relates issues, have been friends or relatives of politically influential persons throughout the United States, and therefore, politically advantageous for the Administrator.

    One person who chose not to "keep quiet" was Fred Ganem, SAC (retired), DEA Office of Investigative Technology. Mr. Ganem chose to write memorandums regarding unsuitable candidates for employment and was chastised for doing so prior to his retirement. (Note: He is referred to in the above email strings as {Frank G.} in the portion: From-Pagliarini, Raymond A. Sent- February 05, 2014 10:39 a. m. To- Grubbs, Preston L. Subject- Issues with Polygraph...

    Additionally, a review of this email string and the language and tenor used in questioning the motives of Mary Toomey, GS-14, Polygraph Unit Chief reporting this misconduct, is quite troubling. In essence, her legitimate concern for the DEA and public is trumped by higher grade DEA Officials, specifically Harrigan, Grubbs, and Pagliarini, angry that she would not follow the Administrator's mandates. Some of the language in this email string may reveal that person(s) named and/or unnamed may be presently subjected to retaliation for bringing these serious matters to the forefront of management officials within the Drug Enforcement Administration Polygraph Unit on a repeated basis.

    There are many other current and retired personnel that are well aware of this situation but do not have the ability, finances, desire, or willingness to subject themselves to the "DEA/OPR/OIG/OSC meat grinder" that taking a stand on this serious issue would entail.

    The areas of concern continue to be:

    • Violation of the DOJ Standards of Conduct Violation of the DEA Standards of Conduct Violation of the DOJ Giglio Policies
    • Violation of the rules regarding Giglio AUSA reporting procedures Violation of the Bivens Doctrine
    • Violation of the Brady Doctrine
    • Violation of the Jencks Doctrine
    • Violation of the Exculpatory Evidence Doctrine
    • Violations related to misconduct under "color of authority"
    • Violation of the civil/criminal liability doctrine of Negligent Retention


    As you are well aware, polygraph utilization by numerous Federal Government entities is widespread and necessary, given the current complexity of human interactions, honesty/integrity issues, sources of information, and employment considerations. While polygraph results are never 100% in their certainty, they can be a useful tool in ascertaining matters of truthfulness in civil, criminal, employment, and other assorted investigations.

    In the representative "tip of the iceberg" email string contained above, there are extremely serious misconduct allegations involving serious criminal/civil allegations of DEA pre-employment candidates. These allegations concern VOLUNTARY ADMISSIONS by the Basic Agent Trainee (BAT) candidates (Names Redacted) during their respective video and audio recorded polygraph sessions. Significant admissions of misconduct were subsequently documented in written form by the DEA-6 reporting format contained in the DOJ/DEA/Firebird electronic media system. These allegations have been reported for years and many have subsequently been ignored by the Administrator, Harrigan, Grubbs, and Pagliarini. There are extensive electronic and paper records of these findings within the DEA electronic records system and the Federally mandated data preservation systems that encompass it. The extent of the reporting and discussion of these issues is easily discovered and revealed in the electronic investigative documentary trail that is present in all email systems in the Federal Government.

    The prescient questions are these:

    1. Will this information be subjected to the same sort of "accidental/deliberate" destruction that other high profile Government cases have endured recently when an active Agency and/or Capitol Hill Investigative Inquiry is undertaken?

    2. Will a Congressional/Senatorial Investigative Inquiry and subpoena of current and former knowledgeable officials from the DEA provide information on reported and un-reported individuals vetted improperly in the employment process?

    3. Will the U.S. Constitutional Judicial Process permit Federal Agents to arrest and charge U.S. Citizens and Foreign Nationals with drug crimes and other assorted criminal conduct while those very same Agents may have previously engaged in criminal misconduct of their own that is un-adjudicated and/or still within the applicable statute of limitations period to be criminally charged?

    4. How many millions of dollars in collateral damage(s), lost investigative resources, and unforeseen re-investigative expenses will this willful misconduct cost the U.S. taxpayers?

    5. How much United States government embarrassment and Drug Enforcement Administration reputation degradation will this preventable misconduct place at the feet of the government agencies accountable for it?

    6. Could there be other Federal Agencies with similar problematic polygraph investigative issues of a serious nature?

    The Administrator has routinely disregarded the findings in many (not all) cases of disqualifying conduct for many years and allowed unqualified candidates to become sworn DEA Special Agents. The legal ramifications for DEA and the Federal Judicial System are staggerin&

    Possible implications include, but are not limited, to the following:

    • How many current or former Agents have undisclosed criminal/civil polygraph issues, some of which are still within the applicable statute of limitations period to be criminally charged?
    • Who reported these issues?
    • Who refused to act upon these disclosures?
    • What measures were taken to confirm or disallow these disclosures?
    • What person(s) exerted improper/illegal influence to quash reporting of these issues?
    • Are these Agents, past, present, or future, liable to affect the outcome of past, current, or pending DEA cases?

    Many DEA personnel have reasonably and properly attempted to report this misconduct and request further guidance in addressing it. However, the current conditions in the U.S. Government, the Department of Justice, and the Drug Enforcement Administration have resulted in concerned parties forced to remain Silent, Retire, or Suffer the Consequences for speaking out! Some retired and current DEA Management officials are more than willing to truthfully testify as to this egregious pattern of misconduct by the DEA Administrator and her "yes men" only when, and if, they are served with a duly authorized subpoena to testify, under oath, at a Congressional inquiry or other legal proceeding.

    The citizens of the United States deserve better, the thousands of dedicated DEA employees past, present, and future, deserve better, and current legal statutes and policies demand that this situation be investigated and corrected IMMEDIATELY before it implodes and destroys the credibility and veracity of the Drug Enforcement Administration.

    Thank you for your time and attention to this important matter.

    Respectfully submitted on behalf of numerous concerned former and current DEA employees, who believe in honesty, integrity, truthfulness, and full disclosures, who have become embarrassed by the acts of some top level DEA Management officials, including the Administrator, Harrigan, Grubbs, and Pagliarini.

    Enclosures: (2)

    Mr. Jared Polis
    Mr. James B. Comey
    Office of the Inspector General, DOJ Ms. Michele Leonhart
    Mr. Thomas M. Harrigan
    Mr. James L. Capra
    Mr. Walter C. Morrison
    Mr. Preston Grubbs
    SAC, DEA Office of Training Mr. Harry S. Sommers
    Mr. John Riley
    Mr. Daniel R. Salter
    Ms. Barbara M. Roach
    Mr. James V. Allen
    Mr. Will R. Glaspy
    Mr. Joseph M. Arabit
    Mr. Anthony Williams
    Mr. Mark R. Trouville
    Mr. Michael J. Ferguson
    Mr. Carl J. Kotowski
    Mr. Raymond Brown
    Mr. James J. Hunt
    Mr. David G. Dongilli
    Mr. Douglas W. Colman
    Mr. William R. Sherman
    Mr. Jay Fitzpatrick
    Mr. Mathew G. Barnes
    Mr. James P. Shroba
    Mr. Karl C. Colder FLEOA Headquarters
    Mr. Phill Coleman
    Federal Public Defenders Office American Bar Association
    Mr. Jay Sekulow
    Ms. Marisa Taylor
    Mr. Bill O'Reilly
    Mr. Lou Dobbs
    Ms. Megan Kelly
    Mr. James Rosen
    Washington Times
    The Washington Post

    CC Mailing Addresses List: (for clarity outside of DEA)

    The Honorable Darrell Issa United States Congress
    WASHINGTON, DC 20515

    The Honorable Mitch McConnell United States Senate
    361A Russell Senate Office Building
    Washington, D.C. 20510

    The Honorable Claire McCaskill United States Senate
    Hart Senate Office Building, Ste. 506 Washington, D.C. 20510

    Mr. James B. Comey, Director Federal Bureau of Investigation FBI Headquarters
    935 Pennsylvania Avenue, NW Washington, D.C. 20535-0001

    U.S. Department of Justice Office of the Inspector General Investigations Division
    950 Pennsylvania Avenue, N. W. Room 4706
    Washington, DC 20530

    Mr. Thomas M. Harrigan
    DEA Headquarters
    700 Army Navy Drive Arlington, Virginia 22202

    Mr. James L. Capra
    DEA Headquarters
    700 Army Navy Drive Arlington, Virginia 22202

    Mr. Walter C. Morrison, Chief Ofc. of Special Agent HR Svc.
    700 Army Navy Drive Arlington, Virginia 22202

    Mr. Preston Grubbs
    DEA Headquarters
    700 Army Navy Drive Arlington, Virginia 22202

    Special Agent in Charge
    DEA Office of Training
    P.O. Box 1475
    Quantico, Virginia 22124-1475 **DEA Domestic Offices**

    Mr. Harry S. Sommers, SAC Atlanta Division DEA
    75 Spring St. S. W., Room 800 Atlanta, GA 30303

    Mr. John Riley, SAC Chicago Division DEA

    John C. Kluczynski Fed. Bldg. Suite 1200 230 S. Dearborn St.
    Chicago, IL 60604

    Mr. Daniel R. Salter, SAC Dallas Division DEA
    10160 Technology Boulevard East, Dallas, TX 75220

    Ms. Barbara M. Roach, SAC Denver Division DEA
    12154 East Easter Avenue Centennial, CO 80112

    Mr. James V. Allen, A/SAC Detroit Division DEA
    431 Howard Street Detroit, MI 48226

    Mr. Will R. Glaspy, SAC EI Paso Division DEA
    660 Mesa Hills Drive, Suite 2000 El Paso, TX 79912

    Mr. Joseph M. Arabit, SAC Houston Division DEA
    1433 West Loop South, Suite 600 Houston, TX 77027-9506

    Mr. Anthony Williams, SAC
    Los Angeles Division DEA
    255 East Temple Street, 17th Floor Los Angeles, CA 90012

    Mr. Mark R. Trouville, SAC Miami Division DEA
    2100 North Commerce Parkway Weston, FL 33326-323403

    Mr. Michael J. Ferguson, A/SAC New England Division DEA
    JFK Federal Bldg., Room E-400 15 Sudbury Street
    Boston, MA 02203

    Mr. Carl J. Kotowski, SAC New Jersey Division DEA
    80 Mulberry Street, 2nd Floor
    Newark, NJ 07102-4206

    Mr. Raymond Brown, SAC New Orleans Division DEA
    3838 N. Causeway Blvd., Suite 1800 Three Lakeway Center
    Metairie, LA 70002

    Mr. James J. Hunt, SAC New York Division DEA 99 10th Avenue
    New York NY 10011

    Mr. David G. Dongilli, SAC Philadelphia Division DEA Wm. J. Green Fed. Bldg.
    600 Arch Street, Room 10224 Philadelphia, PA 19106

    Mr. Douglas W. Colman, SAC Phoenix Division DEA Westmount Place, Suite 301 3010 North 2nd Street Phoenix, AZ 85012

    Mr. William R. Sherman, SAC San Diego Division DEA
    4560 Viewridge Avenue
    San Diego, CA 92123-1672

    Mr. Jay Fitzpatrick, SAC San Francisco Division DEA 450 Golden Gate Ave.
    P.O. Box 36035
    San Francisco, CA 94102

    Mr. Mathew G. Barnes, SAC Seattle Division DEA
    300 5th Avenue, Suite 1300 Seattle, Washington 98104

    Mr. James P. Shroba, SAC St. Louis Division DEA 317 South 16th Street
    St. Louis, MO 63103

    Mr. Karl C. Colder, SAC Washington, DC Division DEA 800 K Street, N. W., Suite 500 Washington, DC 20001

    FLEOA Headquarters
    1100 Connecticut Avenue, NW, STE 900 Washington, DC 20036

    Mr. Phill Coleman
    DEA Watch
    817 Via Carmelitos
    Virginia Building 319
    Long Beach CA 90805-7549

    Federal Public Defenders Office 625 Indiana Ave NW #550 Washington, DC 20004
    American Bar Association
    1050 Connecticut Ave. N.W. Suite 400
    Washington, D.C. 20036

    Mr. Jay Sekulow, Chief Counsel American Center for Law and Justice PO Box 90555
    Washington, DC 20090-0555 Ms. Marisa Taylor

    McClatchy Washington Bureau
    700 12th St. NW, Suite 1000, Washington, DC 20005 Mr. Bill O'Reilly

    Fox News
    1211 Avenue of the Americas New York, NY 10036

    Ms. Megan Kelly
    Fox News
    1211 Avenue of the Americas New York, NY 10036

    Mr. Lou Dobbs
    Fox News
    1211 Avenue of the Americas New York, NY 10036

    Mr. James Rosen
    Fox News
    1211 Avenue of the Americas New York, NY 10036

    Mr. John Solomon, Editor The Washington Times 3600 New York Ave NE Washington, DC 20002 Editor

    The Washington Post 1150 15th Street
    NW Washington
    DC 20071
    425 Third Street SW, Suite 800 Washington, DC 20024

    1) The Honorable Claire McCaskill United States Senate; 506 Hart Senate Office Building Washington. D.C. 20510

    2) The Honorable Darrell Issa United States Congress; 2157 Rayburn House Office Building Washington DC 20515

    3) The Honorable Mitch McConnell United States Senate; 361A Russell Senate Office Building Washington. D.C. 20510

    Enclosures: (2)

    Exhibit #1

    Summary of Revised Giglio Policy. dated May 12. 2014

  • The Giglio Policy was initially implemented in December, 1996. Modest modifications were made to the Policy in 2006 that did not alter DEA's disclosure requirements.

  • The revised Giglio Policy, which will become effective July 11, 2014, seeks to address prosecutor concerns that:
    • current case law has expanded the types of conduct that must be disclosed for impeachment purposes; and
    • original restrictions regarding the maintenance and disclosure of potential impeachment information handicaps a prosecutor's ability to quickly and effectively produce discovery.

  • The revised Policy reflects seven significant changes, each of which was the subject of vigorous debates with and detailed written submissions by the Law Enforcement Agencies (FBI, DEA, ATF, USMS).
  • First, the revised Policy places greater emphasis on the need for employees to have a "candid" conversation with their respective prosecutors concerning potential impeachment information.
  • Second, the Policy strongly encourages prosecutors to make Giglio requests and provides that they may do so upon initiation ofa case or matter within the prosecutor's office or anytime thereafter. Moreover, before using or relying upon information in the prosecuting office's Giglio system of records, the Requesting Official must contact DEA to update the information.
  • Third, the Policy clarifies that the definition of impeachment includes the employee's conduct on-duty and off-duty, and expands the types of conduct that fall within the Policy. The Policy will now include:
    • pending investigations that involve "integrity," as well as truth and bias;
    • judicial findings that an employee testified untruthfully, knowingly made a written false statement, engaged in an unlawful search or seizure, illegally obtained a confession or engaged in other misconduct; and
    • findings and allegations that relate to substantive violations concerning:
      • failure to follow legal or agency requirements for the collection and handling of evidence, obtaining statements, recording communications, and obtaining consents to search or to record communications;
      • failure to comply with agency procedllI'CS for supervising the activities of a cooperating person (C.I., C.S., CHS, etc.); and
      • failure to follow mandatory protocols with regard to the forensic analysis of evidence.
    • As a result of the broader impeachment definition, the Giglio disclosure status of some employees may change. DEA may now have to disclose information that we previously determined would not be a disclosure.
    • Fourth, the original policy prevented prosecutors from retaining in a Giglio system of records potential impeachment information that ultimately was not used in a criminal case. The revision permits the retention of any legal analysis and substantive communications concerning this type of information in the Giglio system of records.
    • Fifth, the Policy requires that potential impeachment information be securely stored and disclosed to requesting prosecutors within the office on a case-related, need-to-know basis.
    • Sixth, when an employee is transferred to or is testifying in a different judicial district, the Policy permits prosecuting offices to share infonnation from its Giglio system of records with the Giglio Official in the new district.
    • When the Giglio Requesting Official distributes materials from the Giglio system of records to a Giglio Requesting Official in another district, he/she must notify DEA what materials are being distributed. If the materials concern a pending investigation, the Giglio Requesting Official must provide notification before he/she distributes the materials so that DEA may update the materials. Moreover, the Giglio Requesting Official in the receiving District must seek DEA's update of the materials as a part of its Giglio analysis and permit DEA to fully express its views regarding disclosure of the materials.
    • Seventh, when an employee is transferred into a new district, the Policy requires that DEA notify the Giglio Official of any potential impeachment infonnation concerning the employee before he/she begins meaningful work on a case or matter in the new district.

    Exhibit #2

    DOJ Policy Concerning Electronic Recording of Statements

  • Issued May 12,2014, effective July 11,2014
  • Applies to DBA, FBI, A F, USMS
  • Policy:
    • "There is a presumption that the custodial statement of an individual in a place of detention with suitable recording equipment, following arrest but prior to initial appearance, will be electronically recorded [ ... ]."

  • Definitions:
    • Electronic recording: preference for video recording. When not available, then audio recording may be used.
    • Custodial interviews: applies only to interviews of persons in DEA, FBI, ATF, USMS custody.
    • Place of detention: a structure where persons are held in coMection with federal criminal charges where those persons can be interviewed.
      **Does not apply while a person is waiting for transportation or is en route to place of detention.
    • Suitable recording equipment: to be determined by each agency but needs to be designed to capture entirety of interview.
    • Ttming: policy applies persons in custody, in a place of detention, with suitable recording equipment, following SlTest but before initial appearance under F.R.Cr.P.S.
    • o Applies to all federal offenses.
    • Begins when subject enters interview area and continues until interview is complete.
    • May be overt or covert.

  • Exceptions:
    • Refusal by interviewee.
    • Public safety and national security: no presumption when questioning is to gather public safety information per New v. Quarles OR where questioning is to gather national security-related intel OR questioning concerning intelligence, sources or methods and public disclosure would cause damage to national security.
    • Recording is not practicable. Residual. SAC and USA (or designees) agree that there is a significant, articulable law enforcement purpose not to record.
    • Does not apply outside the US.

  • Administrative Issues
    • Training: Field offices to collaborate with local USAOs on district wide "best practices" training.
    • Agencies bear cost of duplicating recordings pre-indictment. USAOs pay for transcripts post-indictment.

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