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The ATF’s Record-Keeping Issues Extend to Its Confidential Informant Program

DOJ Inspector General says the agency's oversight of the sources it pays to build cases needs "significant improvement."

The Bureau of Alcohol, Tobacco, Firearms and Explosives is not tracking its confidential informants as closely as it should be, a practice that could compromise criminal cases and leave open questions about how much informants are being paid, a new government audit has found.  

The agency, which enforces federal gun laws, is supposed to keep detailed records of payments made to the informants it uses to uncover criminal activity and build legal cases. But the records the ATF keeps and shares about its informant program are scattered, and often provide incomplete information, a 51-page audit released this week by the Justice Department’s Office of the Inspector General released concludes. The ATF, the audit says, did not “have reasonable assurance that some of the most fundamental information it maintained about the program was complete and accurate.”

The Inspector General’s office blames the disorganization on poor record-keeping practices, noting that many of the ATF’s records are kept in hardcopy, or in an “unsophisticated” internal database.

“We found that while ATF’s policies were generally aligned with the attorney general’s guidelines for confidential informants, its oversight of the confidential informant program required significant improvement,” said Michael Horowitz, the Justice Department’s inspector general in a video announcing the audit.

 

A review of a database of informants that the ATF helps maintain revealed that only 43 percent of the digital records submitted by the agency included any payment information.

When investigators looked at multiple sources of records in an attempt to reconcile the payment history of an informant, they found more messy records. In a sample of five agency informant cases, four had conflicting documentation about the amount each person was paid.

The agency’s failure to track payments damaged its ability to ensure that “accurate and complete information is consistently available to prosecutors when [informants] are used in federal criminal proceedings,” the audit says.

A spokeswoman for the ATF said the agency had “already taken steps to modernize tracking of confidential informants and confidential informant payments, and strengthen controls and oversight.”

Each year, the ATF spends about $4.3 million on informants. As of January 2016, the agency was working with 1,855 informants.

This is not the first time the ATF’s management of informants has come under scrutiny. In 2012, a government inquiry into Operation Fast and Furious found that agents had instructed licensed firearms dealers acting as informants to sell weapons to illegal straw buyers. Some of the firearms were later recovered at crime scenes. A similar audit into the agency’s practice of operating undercover storefronts published late last year, found that in at least one case an informant had been buying drugs and soliciting prostitutes, while telling non-government personnel he was working with the ATF. And last month, an investigation by The New York Times revealed that ATF agents in Virginia had been paying informants off the books. Two informants received at least $1 million each.

The Inspector General’s office did not investigate whether improper records reporting had affected a criminal proceeding, and it is not aware of any instances in which it did.

By law, defense lawyers must be told if witnesses were paid — and how much they were paid — to testify against a client. Legal experts said inaccurate payment calculations could hinder the ability of defense attorneys to mount the most effective case. Lawyers sometimes argue that a payment is an incentive for the witness to lie.

“It’s disturbing that in 2017, ATF’s record keeping protocols are so primitive that there are piles of records in dusty closets that have to be reviewed.” said John Carman, who has defended clients in cases that hinged on informant testimony. “If someone is testifying against my client, it’s important that I know what they’re getting in exchange.”

The audit also found that the ATF has not been accurately tracking foreign nationals who are working as confidential informants. Of 32 foreign informants listed in a spreadsheet provided to the auditors by the agency, only four had been reported to a national database that the government uses to track informants. Three additional ATF informants who did not appear on the spreadsheet were logged in the database.

“The inability to efficiently identify these [informants] is especially problematic because [they] often have criminal histories, or are involved with criminal organizations, and therefore the risks associated with [them] remaining in the United States without legal authorization are higher than normal,” the audit said.

The agency needs to improve its protocols for tracking all informants, including those who  hold high-level positions in criminal organizations, the audit recommends. Otherwise, those informants might be paid by multiple law enforcement agencies for the same information, or feel empowered to break the law.

According to both the ATF and the report, the agency had identified many of its own problems tracking confidential informants several years ago. The agency began developing a new automated system for tracking both informants and payments in 2015, and implemented it last October.

Investigators who prepared the audit of the ATF’s informant practices were given a demonstration of the new system after completing their fieldwork. The audit notes that investigators believe the the new system improves ATF’s ability to track informants — but it has not been fully evaluated.

“Informants are asset, a way that law enforcement makes our jobs successful,” said Rick Serrato, a former investigator who teaches courses to law enforcement officers on how to handle informants. “But there’s another side to it. You have to go back to the office and fill out the paperwork. Otherwise the system doesn’t work.”

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