Justice Manual § 9-100.100

This section sets forth the responsibilities of United States Attorneys' Offices (USAO) with respect to drug evidence destruction. See 28 C.F.R. § 50.21.

Each USAO should designate a Drug Evidence Destruction Coordinator (DEDC). This coordinator should preferably be an attorney familiar with the prosecution of narcotics cases and related evidentiary issues. The coordinator will work closely with Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI) and United States Immigration and Customs Enforcement (ICE) counterparts to ensure that the evidentiary value of the drug evidence is preserved for later use in court. In addition, the coordinator will be responsible for monitoring legal problems, providing advice, and ensuring that the FBI, DEA and ICE 60-day notices are forwarded to the appropriate attorney.

When the USAOs receive the 60-day notice, it should be forwarded to the attorney assigned to the case (and to the DEDC) to determine the appropriate response. The prosecutor may want to contact the DEA, FBI or ICE agent in charge of the case to get the agent's assurance that sufficient photographic documentation of the evidence is or will be available prior to destruction. Furthermore, if the evidence is marijuana, the prosecutor is encouraged to consult with the case agent to make sure that the evidence was accurately weighed and the weighing method was adequately documented for use in court proceedings. Once the appropriate reviews and consultations are complete, the prosecutor may take one of the following actions:

Send a written response to the case agent before the 60-day time period elapses permitting sampling and destruction to proceed (NOTE: The Department encourages prosecutors to do this as soon as possible for cases where there is no basis for an exception request. This will permit DEA, FBI or ICE to begin the sampling and destruction process in less than 60 days, providing laboratory analyses are completed.); or

Permit the 60-day time period to elapse, at which point the DEA, FBI or ICE case agent will authorize sampling and destruction with no further notice to the USAOs once laboratory analyses are completed; or

Determine that an exception request is warranted, and forward such a written request, signed personally by the USA, to the DEA, FBI or ICE Special Agent-In-Charge (SAC). It must be received before the expiration date of the 60-day time period.

NOTE: The use of exception requests should be severely limited. In any case in which the USA requests an exception from the SAC, the burden will be on the prosecutor to show the particular circumstances or factors that would adversely affect the government's case. Because the sample retained under the standard procedure will be large—twice the amount required for maximum mandatory minimum penalties for all substances other than marijuana and liquid phencyclidine (PCP)—prosecutors are strongly discouraged from filing an exception request on the grounds that the full seizure is needed for jury appeal or other purely strategic purposes.

If the DEA, FBI or ICE SAC denies the exception request to preserve the bulk evidence, the USA will be so notified in writing. The exhibit will be retained for 30 days from the date of the denial notice before sampling and destruction are authorized.

The USA may choose to abide by the SAC's decision or may appeal the decision to the Assistant Attorney General (AAG), Criminal Division. Appeals should be sent directly to the Chief of the Money Laundering, Narcotics and Forfeiture Section (MNF), Criminal Division and must include a completed appeal form available to Department attorneys, and the required supporting documentation. All appeals should be transmitted to MNF electronically.

A copy of the appeal request should be sent to the DEA, FBI or ICE SAC and must be received before the 30-day appeal period has elapsed. Once an appeal is filed, the evidence will be maintained intact until the appeal is decided, provided that the DEA or the FBI is notified of the appeal within 30 days of the denial notice. ICE's policy, however, provides for the commencement of destruction unless the ICE SAC receives a copy of the decision letter from the AAG granting the appeal within 90 days of the ICE denial notice.