Rollin Perkins, my criminal law professor at Hastings, often began classes with a “black letter” statement of the crime he would discuss that day. Perhaps this doesn’t qualify as black letter, but one of the first sentences in his lecture on fraud was a simple statement. “Where there’s a lot of money, there’s likely to be fraud.”
In a prior blog (July 17, IRS Affirms…), I mentioned a case on which I was consulted where a family with an autistic child paid around $20,000 for an autism service dog that had, as near as could be told, received little if any training. Families with autistic children are an obvious target for fraudsters. They are desperate for help but reputable service dog agencies have long waiting lists for autism service dogs. Some people jump when a breeder contacts them with a story about a service animal that just became available.
Another desperate situation where there was suddenly a lot of money for a time was the federal government in the wake of 9/11. Fears about terrorists bringing bombs into buildings, subways, or airplanes created enormous demand for explosives detection dogs. Among agencies seeking to fill this need were the State Department, the Federal Reserve, and the IRS. (The IRS expected to pay around $4 million annually for guard dog services for the National Office according to an undated "new contract opportunities" memo that listed contracts for 2007 and 2008.) These agencies obtained dogs through intermediary suppliers, including Intercon Security Services, Inc. and Worldwide Security Services, Inc.
One person who sought to supply bomb dogs to the government was Russell Lee Ebersole, who had a business, Detector Dogs Against Drugs and Explosives, Inc., located in Virginia and Maryland. He sold canine teams to Intercon and Worldwide Security for about $700,000.
Eventually doubting the competence of the dogs and handlers supposedly trained by Ebersole (who were showing too much interest or making false alerts where there turned out to be no explosives, resulting in some costly bomb squad deployments), the State Department arranged odor recognition proficiency tests for the six dogs assigned to the Harry S. Truman Building, the State Department’s headquarters in Washington, D.C. The dogs were tested at the Canine Enforcement Training Academy of the Bureau of Alcohol, Firearms, and Tobacco in Front Royal, Virginia, and all failed. Three of Ebersole’s dogs that were working for the Federal Reserve were unable to alert to 50 pounds of trenchrite-5 dynamite, 50 pounds of TNT, or 15 pounds of C-4 placed in three separate unmarked vehicles. The large amounts of explosives may have been different from the levels the dogs were trained on, which sometimes does confuse animals, but the number of tests suggests the dogs were poorly trained.
The tests for all of Ebersole’s dogs are not described in detail, but the federal district court for the Eastern District of Virginia quotes from material concerning how the Treasury Department tests dogs. Dogs are to be tested on ten different explosives in ten different containers, with additional containers containing other substances or empty. Containers are spaced four feet apart. Sample containers must be in place for at least 15 minutes before testing. Dogs must alert correctly to all ten explosive odors, and a dog fails if it alerts more than twice to containers not holding explosives. Some of Ebersole’s teams missed every single explosive, but alerted to other substances.
On March 13, 2003, Ebersole was indicted for wire fraud and presenting false claims to the government under the federal criminal code,18 U.S.C. 1343 and 287. A former employee of Ebersole’s business testified about fabricating test results and certifications for dogs designated for the IRS assignment. Handlers hired by Ebersole testified that they had only trained for a fraction of the time that federal agencies believed they had been trained. On June 20, 2003, a jury convicted Ebersole. He was sentenced to 78 months in prison, which was eventually reduced to 63 months.
In one of Ebersole’s arguments for a retrial, he cites Justice Souter’s dissent in Illinois v. Caballes, 543 U.S. 405 (2005): “The infallible dog, however, is a creature of legal fiction.” This amounts to saying that the entire concept of explosives detection training is a fraud. The argument is doubly curious as one source advised me that Ebersole sometimes tried to teach dogs to have different alerts to different explosives, and also to have a separate alert for narcotics. This suggests that rather than doubting the skills of dogs, Ebersole may have overestimated what he could teach dogs and handlers to do. The court did not buy Ebersole’s excuse.
U.S. v. Ebersole, 411 F.3d 517, cert. denied, 126 S.Ct. 1142 (2006), on remand, 2007 WL 219969 (E.D. Va. 2007), aff’d, 189 Fed.Appx. 287 (4th Cir. 2006), motion to vacate denied, 2007 WL 750198 (E.D. Va. 2007).
The moral is that when the federal government can’t meet its own needs for police dogs, testing should be conducted before the bulk of a sizeable payment is made to a supplier.
Addendum. Failure to provide adequately trained explosives detection dogs was alleged as to a military contractor providing dogs for the entrance gates of the presidential compound in Kabul, Afghanistan. The contractor, DynCorp International, was hired by the State Department, whose Diplomatic Security Services Bureau had assumed responsibility for providing security for President Hamid Karzai. The suit, which was brought by a handler at the location who had determined the dogs being supplied were inadequate, was dismissed on procedural grounds. DynCorp's source for the dogs was not stated. U.S. ex rel. Cody v. Computer Sciences Corp., 246 F.R.D. 22 (D.C. D.C. 2007)
Second Addendum. In September 2010, the State Department's Inspector General released a report on deficiencies in testing bomb dogs deployed to Iraq and Afghanistan. The analysis was begun by the Middle East Regional Office (MERO) of the OIG, which had noticed a pattern of canine program deficiencies. About 200 dogs are used in these locations with a hefty price tag. The cost for the Baghdad Embassy Security Force alone amounts to $24 million a year.
State Department bomb dogs are expected to comply with the Department of Treasury's Odor Recognition Proficiency Standard for Explosives Detection Canines. (ATF announced the availability of the standard to law enforcement and government agencies in 1999. 64 Fed. Reg. 41487 (July 30, 1999))
The Inspector General found "systemic weaknesses in canine test procedures," including failure to test dogs on the six mandated explosive scents, use of old materials, failure to store test items separately, failure to keep documentation concerning testing materials and procedures, and other failures. State Department personnel did not understand bomb dog procedures and had to rely on the contractors, who were apparently not following Treasury's guidelines.
The State Department indicated it would try to improve compliance. A spokesman for RONCO Consulting Corp., one of the groups supplying the canine teams to the State Department, called the Inspector General's report inaccurate. U.S. Dept. of State, Office of Inspector General. Limited-Scope Review of the Bureau of Diplomatic Security's Oversight of Explosives Detection Canine Programs, MERO-I-10-14 (September 2010). See Richard Lardner, Associated Press Report: US Bomb-Sniffing Dogs Not Up to Snuff (October 13, 2010).