Introduction
Jurisdiction and Functions
Changes in OPR's Jurisdiction, Case Reporting, and Statistical System
Statistical Summary of OPR Activities in FY 1996
Examples of Matters Handled by OPR in FY 1996
Operations of Federal Bureau of Investigation OPR and Drug Enforcement Agency OPR
Federal Bureau of Investigation OPR
Significant Initiatives in FY 1996
Statistical Summary of FBI/OPR Activities in FY 1996
Examples of Matters Investigated by FBI/OPR in FY 1996
Drug Enforcement Administration OPR
Significant Initiatives in FY 1996
Statistical Summary of DEA/OPR Activities in FY 1996
Examples of Matters Investigated by DEA/OPR During FY 1996
Conclusion
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Tables
Jurisdiction and Functions
Changes in OPR's Jurisdiction, Case Reporting, and Statistical System
Statistical Summary of OPR Activities in Fiscal Year 1996
Table 1. Sources of Miscondust Complaints
Sources of Misconduct Complaints Received in FY 1996
|
Number of Complaints | Percent of Total |
Department components & employees (including self-reporting) |
44 | 36% |
Judicial opinions & referrals | 25 | 21% |
Private attorneys | 22 | 18% |
Private parties | 17 | 14% |
Other agencies | 7 | 6% |
Congressional referrals | 4 | 3% |
Other sources | 2 | 2% |
Table 2. Subject Matter of Misconduct Complaints Received in FY 1996
Alleged Misconduct | No. of Complaints |
Percent of Total |
Abuse of prosecutorial or investigative authority | 34 | 28% |
Unauthorized release of information (including grand jury information) | 16 | 13% |
Conflicts of interest | 15 | 12% |
Misrepresentation to the court | 14 | 12% |
Failure to perform duties properly, negligence | 10 | 8% |
Failure to disclose exculpatory, impeachment or discovery material | 9 | 7% |
Improper oral or written remarks to grand jury or court | 6 | 5% |
Criminality | 6 | 5% |
Unprofessional behavior | 6 | 5% |
Improper contacts with represented parties | 2 | 2% |
Other (incl. unauthorized practice of law, violation of civil rights, etc.) | 3 | 3% |
Examples (3) of Matters Handled by OPR in Fiscal Year 1996
OPR found that the DOJ attorney participated in the criminal investigation to a limited extent by personally telephoning state employees to request documents relating to the alleged criminal conduct. OPR concluded that the DOJ attorney engaged in professional misconduct by failing to realize that investigating a spouse's allegation against the spouse's boss created an appearance of a conflict of interest. The DOJ attorney was given a written reprimand.
OPR found that the DOJ attorney engaged in professional misconduct by consciously disregarding his discovery obligations, made an improper argument to the jury, recklessly disregarded his obligation to be candid with the court, and intentionally misrepresented facts to OPR. OPR recommended a range of discipline from a substantial suspension without pay to termination. The supervising attorney, however, issued a written reprimand to the DOJ attorney, based on a review of his personnel records, interviews of the attorney's other supervisors, and the fact that the incident occurred before the supervising attorney assumed office.
OPR directed the attorney to respond in writing to the allegations, but he resigned his position without responding. OPR informed the chief disciplinary counsel for the state bar in which the former DOJ attorney was licensed, noting that the allegations had been made and that OPR was unable to resolve them in view of the attorney's resignation and non-cooperation.
OPR found that the DOJ attorney, who left the Department after the conduct at issue but cooperated with the OPR investigation, did not engage in professional misconduct. OPR determined that the statements made by the DOJ attorney to the District Court about the witness' assertion of Fifth Amendment rights were in response to direct questions about the grand jury proceedings and thus were permissible disclosures under Rule 6(e)(3). OPR found further that the in-court disclosure rendered the statements a matter of public record.
OPR found that the DOJ attorney committed professional misconduct by not correcting the false testimony of the government witness and instead endorsing that false testimony in closing argument. Specifically, OPR found that the DOJ attorney acted in reckless disregard of the obligation not to sponsor perjurious testimony or misrepresent the record to the court. Discipline was recommended and imposed.
OPR interviewed the DOJ attorneys and their supervisors regarding the developments leading to the decision not to file a substantial assistance motion following the defendant's trial and conviction. OPR found that the DOJ attorneys faced a unique set of facts and that the caselaw did not appear to preclude a refusal to renew the substantial assistance motion. The DOJ attorneys discussed the issue with their supervisor and all reasonably believed that once the defendant withdrew his plea, the government was free to negotiate a new plea without regard to the earlier promise to file a substantial assistance motion. Moreover, the DOJ attorneys articulated convincing reasons for not renewing the motion, including new information about the defendant's prior criminal conduct and obstructive behavior during trial, which substantially diminished his usefulness as a witness. OPR therefore disagreed with the court's finding that the DOJ attorneys' real motive in refusing to renew the substantial assistance motion was to retaliate against the defendant for exercising his right to a jury trial and concluded that the DOJ attorneys engaged in no misconduct.
Federal Bureau of Investigation
Office of Professional Responsibility
Table 3. FBI/OPR Caseload in Fiscal Years 1995 and 1996
FY 95 | FY 96 |
Percent Changes | |
Matters opened | 526 | 413 | -21.5% |
Matters closed | 456 | 475 | +15.4% |
Matters pending | 408 | 345 | -15.4% |
Examples of Matters Investigated by FBI/OPR in Fiscal Year 1996
Drug Enforcement Administration
Office of Professional Responsibility
Table4. DEA/OPR Caseload in Fuscal Years 1995 and 1996
FY 95 | FY 96 |
Percent Changes | |
Matters opened | 371 | 283 | -29% |
Matters closed | 292 | 382 | +31% |
Matters pending | 238 | 169 | -29% |
Examples of Matters Investigated by DEA/OPR in Fiscal Year 1996
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1. OPR is not required to recommend a range of discipline when it finds performance-related deficiencies.
2. In 13 other matters closed during the period, the subject attorney was found to have exercised poor judgment. These matters were reported to Department supervisors as performance, rather than misconduct, issues. Under OPR's previous statistical reporting system, such matters were reported as matters in which the allegations were substantiated.
3. All of the subjects in the cases discussed below and in the sections of this report on the FBI's OPR and the DEA's OPR are referred to by the masculine pronoun regardless of the gender of individual subjects in order to protect their privacy.
4. As described in this Office's fiscal year 1994 report, authority to adjudicate certain misconduct cases previously adjudicated by the Administrative Summary Unit was delegated to field office and headquarters division managers pursuant to a policy implemented on February 23, 1994. The delegation policy applies to cases which according to FBI precedent call for a penalty of suspension of 14 days or less. Certain offenses were exempted from the delegation order and must be adjudicated by ASU (or the Adjudications Unit, under the new plan), regardless of the anticipated severity of the disciplinary action. These offenses include discriminatory conduct such as sexual harassment, drug-related misconduct, failure to cooperate or lack of candor during an administrative inquiry, voucher fraud or other falsification of reports, shooting-related matters, theft, and felony arrests.
5. Of the 55 cases involving allegations of drug abuse or drug-related misconduct, 4 involved special agents and 51 involved support employees.
6. These figures represent matters designated Professional Responsibility (PR) Investigations by DEA/OPR. In addition to the 283 PR investigations opened in fiscal year 1996, DEA/OPR opened 113 general files. General files are opened when a preliminary review is necessary to determine whether sufficient information exists to warrant a PR investigation. Of the 113 general files opened in fiscal year 1996, 26 were converted to PR investigations and are reflected in the number of PR investigations opened during the year.
7. This number is larger than the number of matters in which misconduct was substantiated due to the fact that some matters involved more than one employee.
Updated page January 30, 1998
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