Office of Professional Responsibility
Fiscal Year 1994 Annual Report
Office of Professional Responsibility
Fiscal Year 1994 Annual Report
Jurisdiction and Functions
Significant Initiatives in FY 1994
Statistical Summary of OPR Activities in FY 1994
Examples of Matters Investigated by OPR in FY 1994
Federal Bureau of Investigation OPR
Significant Initiatives in FY 1994
Statistical Summary of FBI/OPR Activities in FY 1994
Examples of Matters Investigated by FBI/OPR in FY 1994
Drug Enforcement Administration OPR
Statistical Summary of DEA/OPR Activities in FY 1994
Examples of Matters Investigated by DEA/OPR During FY 1994
Table 1. Sources of Misconduct Complaints
Table 2. Subject Matter of Misconduct Complaints Received in FY 1994 by Attorney/Non-Attorney
Table 3. Results of Attorney Misconduct Investigations
Table 4. Disposition of FBI/OPR Matters Closed in FY 1994
Table 5. Agent/Non-Agent Disciplinary Actions, FY 1994
Table 6. Disciplinary Actions Involving DEA Employees
Office of Professional Responsibility
Fiscal Year 1994 Annual Report
This is the nineteenth annual report of the Office of Professional Responsibility of the U.S.
Department of Justice. The Office was created by order of the Attorney General dated December
9, 1975, in order to ensure that "Departmental employees continue to perform their duties in
accord with the professional standards expected of the Nation's principal law enforcement
agency." This report is submitted pursuant to 28 C.F.R. § 0.39a(i)(3), which directs the head of
the Office, the Counsel on Professional Responsibility, to report annually on the activities of the
Office and the internal inspection units in certain components of the Department. The report
covers fiscal year 1994 (October 1, 1993 - September 30, 1994).
Jurisdiction and Functions
The Office of Professional Responsibility (OPR) is responsible for investigating allegations of
misconduct by Department of Justice employees in cases in which the allegations implicate the
prosecutive, investigative or litigative functions of the Department.(1) In addition, the Office
undertakes the investigation of other matters when requested or authorized to do so by the
Attorney General or the Deputy Attorney General.
The results of OPR investigations are reported to appropriate management officials in the
Department of Justice, who are responsible for proposing and implementing any disciplinary
action which may be appropriate. In matters in which the findings may warrant the imposition of
discipline against a Department attorney, OPR recommends a range of appropriate disciplinary
actions pursuant to a policy implemented during the 1994 fiscal year. OPR's recommendation is
not binding on the supervisory official with disciplinary authority over the attorney involved.
The Office regularly reviews case files and statistical data to identify any misconduct trends or
systemic problems in the programs and operations of the Department and its components. The
Office also oversees on behalf of the Attorney General the operations of the Offices of Professional
Responsibility in the Federal Bureau of Investigation (FBI) and the Drug Enforcement
Administration (DEA). Those offices are responsible for the investigation of allegations of
misconduct by employees of the FBI and DEA, respectively. OPR oversees the operations of the
Offices of Professional Responsibility in the FBI and DEA through the receipt of periodic reports
and frequent contacts with personnel in those offices.(2)
The Office increased its attorney staffing level during fiscal year 1994 with the addition of four
attorneys. This brought the Office's attorney complement to thirteen. Additional staffing was
authorized for fiscal year 1995.
Significant Initiatives in Fiscal Year 1994
During fiscal year 1994, OPR continued to implement changes in its operations in response to
policy directives from the Attorney General and the Deputy Attorney General designed to focus
the Office's mission on the investigation of allegations of attorney misconduct and related
allegations involving law enforcement personnel.
Changes in case tracking and reporting criteria: Significant revisions were made during fiscal
year 1994 to OPR's case tracking and reporting methodology. Under the revised methodology,
OPR no longer carries matters in an open status when they are referred to the Office of Inspector
General or other components of the Department for investigation and when OPR is simply
monitoring the matter or awaiting notification of the results of investigation. These changes,
which are discussed further below, significantly impacted the statistical data for the 1994 fiscal
Completion of Investigation Following Resignation or Retirement of Attorney: During the year,
the Office also implemented a new policy with respect to attorney matters in which the subject of
the allegations resigns or retires prior to the completion of the investigation. Previously, OPR
investigations were with very few exceptions closed if the attorney involved resigned or retired
prior to completion of the inquiry. Under the policy implemented in fiscal year 1994, OPR will
complete its investigation in such cases unless the Deputy Attorney General determines that no
substantial Department interest is furthered by continuing the investigation.
Public Disclosure of OPR Findings: During the fiscal year, the Department implemented a policy
providing for the public disclosure of the results of OPR investigations in certain cases involving allegations of attorney misconduct.(3) Under the policy, the Department will disclose the
results of certain OPR investigations, including those involving a finding of intentional misconduct
or involving an allegation of serious professional misconduct in which there has been a
demonstration of public interest, where the public interest in disclosure outweighs the privacy
interest of the attorney and any law enforcement interests. Disclosure can also be made at the
request of the Department attorney who was the subject of the allegations when disclosure would
not compromise law enforcement interests. Pursuant to the policy, the Deputy Attorney General
issued two public disclosure reports in fiscal year 1994.
Statistical Summary of OPR Activities in Fiscal Year 1994
As noted above, in fiscal year 1994 there were significant revisions to OPR's case tracking and
reporting methodology. The revisions were the result of a change in management directives.
Pursuant to a directive from former Deputy Attorney General Arnold Burns, OPR previously
included for case tracking purposes all matters setting out allegations of misconduct against
Department employees in which OPR had a role in the investigation. This included matters which
OPR attorneys investigated themselves, as well as other matters investigated by other Department
components in which OPR provided various degrees of assistance. These activities included
matters in which OPR directly supervised or monitored an inspection unit investigation, matters
in which OPR conducted joint investigations with an inspection unit, matters in which OPR
provided prosecutive opinions and legal advice on the use of investigative techniques such as
consensual monitoring of telephone conversations, matters in which OPR reviewed the results of
inquiries by state bar licensing authorities into the conduct of Department attorneys, and matters
in which OPR reviewed attorney applicant background investigation reports that contained
misconduct issues and provided advice on the applicant's suitability. The purpose was to attempt
to capture in the case tracking system OPR's workload and the variety of activities in which it was
As a result of a directive from former Deputy Attorney General Heymann, OPR now generally
counts for case tracking purposes only matters which are directly investigated by OPR attorneys.
Consequently, use of the revised case tracking system has resulted in a substantial decrease in the
number of matters opened by OPR in fiscal year 1994 as compared to prior years. Conversion
to the revised methodology also resulted in an unusually large number of case closings for the
fiscal year. An additional aspect of Deputy Attorney General Heymann's directive was the
assignment in January of 1994 of 36 senior Department attorneys to OPR on a part-time basis.
Each attorney was assigned an average of four matters to investigate under the supervision and
guidance of OPR. The program continued through the 1994 fiscal year and contributed to the
number of matters closed during the period.
Matters Opened in Fiscal Year 1994: In fiscal year 1994, the Office opened 263 matters
involving allegations of misconduct against Department of Justice employees. The number of
matters opened represented a 62% decrease from the 685 matters opened in fiscal year 1993. An
overwhelming portion of the decrease was attributable to revisions in case reporting methodology
referred to above. In addition, the changes to OPR's jurisdiction resulting from AG Order No.
1638-92 also had an impact on the number of new matters opened.
Changes in case reporting and jurisdiction also impacted on the number of attorney matters
opened. During fiscal year 1994, OPR opened 211 matters involving allegations of misconduct
against Department attorneys. The number of attorney matters initiated represented a 33%
decrease from the 315 such matters opened in fiscal year 1993. However, only a portion of the
decrease could be attributed to case reporting and jurisdictional changes and preliminary figures
on attorney matters for fiscal year 1995 appear to be generally consistent with the fiscal year 1994
figures. Consequently, we believe that the unusually high number of attorney matters received
in fiscal year 1993 was an anomaly.
Overall, the number of complaints (involving both attorneys and non-attorneys) received from
various sources is set out in table 1, below. The percentage of complaints falling into each source
category is also provided.
Table 1. Sources of Misconduct Complaints
|Sources of Misconduct Complaints|
||Number of Complaints
||Percent of Total|
|DOJ components & employees
|Other agencies (incl. state)
|Other (including anonymous)
The types of allegations in complaints of misconduct received by OPR in fiscal
year 1994 are reflected in table 2, below. The table includes the number of
complaints involving Department attorneys and non-attorney employees in each
Table 2. Subject Matter of Misconduct Complaints Received in FY 1994 by Attorney/Non-Attorney
Subject Matter of Misconduct Complaints Received in FY 1994
|Complaints Against Non-Attorneys
|Abuse of prosecutorial/investigative authority
|Unprofessional or unethical behavior
|Conflict of interest
|Unauthorized release of information (other than grand jury
or classified information)
|Violation of civil or constitutional rights, including
|Other (incl. negligence, alcohol-related matters, failure
to file tax returns, Hatch Act violations)
Matters Closed in Fiscal Year 1994: In fiscal year 1994, OPR closed a total of 1,411 matters.
This figure included 628 matters closed administratively which were being handled by the Office
of the Inspector General and monitored by OPR. Of the 783 remaining matters, 376 were non-attorney matters and 407 involved misconduct allegations against Department attorneys.
Allegations of misconduct were substantiated in 22, or about 5% of the 407 attorney matters
closed during the year. Disciplinary actions were taken against a total of 13 attorney employees.
In addition, in six matters involving substantiated allegations, the attorney employee resigned or
retired prior to the imposition of any discipline. In the remaining three attorney matters, no
disciplinary action was deemed appropriate.
The 22 substantiated attorney misconduct matters represented a significant increase over the
seven such matters reported in fiscal year 1993. The increase was partially attributable to the
greater number of attorney matters closed during fiscal year 1994 (407 versus 243). A comparison
of the results of attorney misconduct matters in fiscal years 1993 and 1994 is set out in table 3,
Table 3. Results of Attorney Misconduct Investigations
|Results of Attorney Misconduct Investigations
||No. of Matters
||No. of Matters
Examples of Matters Investigated by OPR in FY 1994(5)
A. Matters in which allegations were substantiated:
Public Criticism of the Court: OPR investigated allegations that a DOJ attorney made a
comment to the press about his dissatisfaction with the sentence which the court had imposed on
a convicted defendant. The DOJ attorney admitted to OPR that he had made the statement to the
press, but contended that the statement did not impugn the integrity of the court. The DOJ
attorney further argued that he had a First Amendment right to make the statement, so long as it
was made after the conclusion of the case and outside the courtroom. OPR was not persuaded by
the DOJ attorney's contentions and concluded that the allegations were substantiated. The DOJ
attorney was given a formal letter of reprimand.
Alerting a Friend to an On-Going Investigation: OPR investigated allegations that a DOJ
attorney had alerted a friend and former colleague that he was the subject of a criminal
investigation. OPR found that the DOJ attorney had come to the conclusion that the case against
the individual was weak, and had contacted him in an effort to resolve the matter by advising him
to discontinue certain actions. However, the DOJ attorney had failed to advise the investigative
agency of his analysis and decision and, therefore, it appeared that he was acting in bad faith.
OPR concluded that the DOJ attorney had exercised extremely bad judgment in creating an
appearance of wrongdoing. The DOJ attorney resigned prior to any disciplinary action being
Improper Use of Frequent Flyer Miles: OPR investigated allegations that a DOJ attorney
had been involved in a scheme to fraudulently obtain frequent flier miles and that he also had
improperly used frequent flier miles earned while on government travel. OPR found that the DOJ
attorney had not fraudulently obtained frequent flyer miles but used government-earned mileage
awards improperly. OPR referred the matter to the DOJ attorney's division which suspended him
without pay for two days.
Failure to Advise Court of Critical Information Related to Plea: OPR investigated
allegations that a DOJ attorney had failed to advise the court that a particular plea agreement was
conditional and that the defendant's right to appeal the denial of a motion to suppress was to be
preserved. As a result, the court of appeals refused to hear the defendant's appeal. OPR
determined that both the DOJ attorney and the defense attorney had failed to properly advise the
court of the conditional nature of the plea. OPR also determined that the DOJ attorney's failure
was not a result of intentional misconduct, but was negligent. OPR referred the matter to the DOJ
attorney's supervisor to address the negligence issue. The DOJ attorney resigned prior to the
imposition of any disciplinary action.
Submitting False Travel Voucher: OPR investigated allegations that a DOJ attorney had
submitted a false travel voucher and had been untruthful when questioned about the voucher by
his supervisor. The voucher at issue contained an inconsistency: the rental car receipt indicated
that the DOJ attorney had returned on one day, while he claimed in the voucher that he had not
returned until the following day. When questioned by his supervisor, the DOJ attorney admitted
that not all the information was accurate because the voucher was a "constructive voucher" which
he claimed demonstrated the authorized, rather than actual, period of travel. The DOJ attorney
took the position that it made no difference whether he returned from his trip when the voucher
indicated or at an earlier time. The supervisor informed the DOJ attorney that his position was
incorrect because, if he returned a day earlier, he was required to attend work the next day. Since
he had not done so, he would be considered AWOL and would not be paid. Shortly thereafter,
the DOJ attorney submitted an amended travel voucher changing the start date of the trip at issue
but leaving unchanged the date of return.
In the course of OPR's investigation, the DOJ attorney claimed that he had not lied to his
supervisor but explained that the travel voucher was "constructive on both ends." He also claimed
that he told his supervisor that he would not amend the voucher return date because, even though
he had returned earlier, he believed he was entitled to be paid for a travel day and, if that required
him to submit a "constructive" travel voucher, he would do so. The DOJ attorney claimed that
the supervisor had discriminated against him in the past and was "hassling" him about the travel
voucher. OPR found that the DOJ attorney returned a day earlier than his travel voucher reflected
and that he submitted a false travel voucher after being confronted by his supervisor. The
fraudulent travel voucher resulted in an overpayment to the DOJ attorney in the amount of $45.54.
OPR concluded that the DOJ attorney had lied to OPR, as well as to his supervisor. As a result
of his misconduct, the DOJ attorney was suspended without pay for one week.
Presenting Improper Argument to the Jury: OPR investigated whether a DOJ attorney
engaged in misconduct by arguing to the jury that it should not be misled by thinking that the
government could have called a certain witness to testify. OPR concluded that the DOJ attorney
had credible reasons for thinking that he might not have been able to call the witness. However,
OPR also found that his argument to the jury implied something more, namely, that the
government was definitively unable to call the witness. Accordingly, OPR concluded that the
remark to the jury constituted misconduct, but that there was insufficient evidence to conclude that
the misconduct was intentional because of the DOJ attorney's misunderstanding, due to
inexperience, of what kinds of arguments to a jury are permissible. Based on OPR's report, the
DOJ attorney was given a letter of reprimand. Subsequently, the DOJ attorney voluntarily
Improper Use of DOJ Position: OPR investigated allegations that a DOJ attorney prepared
another person's application for a visa with a cover memorandum on DOJ stationery. The DOJ
attorney also included one of his DOJ business cards in the submission. The foreign individual
was seeking a visa in order to enter the country to perform certain functions for a non-profit
organization. The DOJ attorney told OPR that he did not intend to gain preferential treatment for
the visa applicant by identifying himself as a DOJ attorney, but believed his actions were
consistent with what DOJ employees are permitted to do on behalf of non-profit organizations.
OPR concluded that the actions of the DOJ attorney were improper, but not intentionally so. OPR
reported its findings to the employee's supervisors, and the employee was counselled.
Improper Use of DOJ Resources for Personal Business: OPR investigated allegations that
a DOJ attorney had improperly used DOJ office equipment and personnel for personal matters and
had been absent from work, without taking leave, to tend to personal matters. OPR concluded that
the DOJ attorney had used certain office equipment for some personal business, but had not
directed any other employees to do any of his personal work. OPR also found that the DOJ
attorney had taken short periods of annual leave during the time in question for his absences. OPR
concluded that the DOJ attorney's conduct constituted a minor infraction and he was counselled
by a supervisor.
Improper Use of FTS Line for Personal Calls: OPR investigated allegations that a DOJ
attorney had used the government's FTS telephone line to make numerous personal long distance
calls to his children over a ten-year period. OPR determined that records existed to confirm only
those calls that had been made during the last two of the ten years. OPR also determined that the
calls were improper under applicable regulations, but not intentionally so because of a 1988 Justice
Management Division memorandum which appeared to permit brief daily calls, even if long
distance, to children at home. OPR referred its findings to the DOJ attorney's supervisor with the
recommendation that the DOJ attorney be counselled against any such further improper use of the
FTS line and that he be required to reimburse the government for the approximately 160 calls
which were verified to have been made, plus a $10.00 administrative charge per call. OPR has
confirmed with the DOJ attorney's supervisor that he had paid the required restitution, as
recommended by OPR.
Unprofessional Behavior: A private attorney alleged that a DOJ attorney engaged in
unprofessional behavior in connection with discussions on a stipulation agreement involving the
use of collateral in a bankruptcy proceeding. The complainant alleged that the Department
attorney made comments of a personal, unprofessional, and derogatory nature to associates of the
complainant's law firm and others on two separate occasions. It was claimed that the DOJ
attorney's remarks included statements that the complainant did not know what he was doing, that
he was an "idiot," that he was untrustworthy, and that he was an "asshole."
The investigation substantiated that the DOJ attorney had, indeed, made the disparaging
remarks. It was also determined that there was an earlier incident involving unprofessional
conduct on the part of the DOJ attorney. The DOJ attorney received a written reprimand.
Insubordination and Issues of Credibility: OPR investigated allegations that a DOJ attorney
had engaged in conduct on several occasions that called into question his truthfulness and integrity,
such as: (i) providing an untruthful affidavit and pleading in a federal criminal case; (ii) failing
to be candid about the affidavit and pleading in a conversation with a supervising DOJ attorney;
(iii) making misrepresentations to the supervising DOJ attorney and another DOJ attorney
regarding another matter; (iv) being insubordinate; and (v) disclosing official information to the
media without being authorized to do so. OPR did not find sufficient evidence to support the
conclusion that the DOJ attorney had engaged in the alleged credibility-related misconduct or to
substantiate the leak allegation. Furthermore, OPR found reason to question the bona fides of the
allegations and the motivation of the supervising attorney in referring the allegations to OPR.
Although the DOJ attorney admitted to being insubordinate to the supervising DOJ attorney, OPR
concluded that under the circumstances the conduct did not warrant any disciplinary action.
Serving as Counsel for Relative in a Criminal Matter: OPR investigated allegations that
a DOJ attorney had engaged in misconduct by representing a defendant in a state criminal case.
It was alleged that the DOJ attorney had entered an appearance on behalf of the defendant and had
used his position as a DOJ attorney to advance the defendant's case. It was also alleged that, upon
hearing that the local prosecutor would not accept the defendant's proposed plea agreement, the
DOJ attorney stated that he would try the case. The DOJ attorney told OPR that the defendant was
a member of the DOJ attorney's family. The DOJ attorney admitted that he had contacted the
local prosecutor to discuss a possible plea and the merits of a certain defense. The DOJ attorney
also told OPR that he had called the court and spoken with the judge to inquire about how the
defendant could enter a plea. The DOJ attorney also told OPR that he had made clear to the judge,
the local prosecutor and the defendant that he was not representing the defendant. However, the
DOJ attorney said that he viewed his actions in the nature of pro bono work.
OPR found that it was not unreasonable for the local prosecutor to conclude that the DOJ
attorney was acting as the defendant's legal representative since many of his actions were
consistent with those typically performed by a defendant's attorney. Although OPR did not
consider the DOJ attorney's actions to constitute intentional misconduct, OPR recommended that
he be counselled regarding the regulations governing pro bono work by DOJ attorneys.
B. Matters in which allegations were found to be unsubstantiated:
Inappropriate Comments to the Grand Jury: OPR investigated allegations that a DOJ
attorney had mistreated two witnesses while questioning them and had made inappropriate
comments about the witnesses to the grand jury when the witnesses were not present. It was also
alleged that the DOJ attorney acted unprofessionally by criticizing his support personnel several
times in front of the grand jury and by being consistently late, without excuse or apology. OPR
concluded that the DOJ attorney's questioning of the two witnesses, who were clearly hostile to
the government, was competent and professional. OPR also found that the DOJ attorney had made
some gratuitous, plainly inadvisable comments to the grand jury during breaks about witnesses and
support personnel. However, OPR concluded that those remarks were not intended to inflame or
prejudice the grand jury in matters before them and did not constitute misconduct. Through its
investigation and interviews with a number of the grand jurors, OPR was struck by the level of
hostility expressed by the grand jurors toward the DOJ attorney. OPR identified a number of
factors that contributed to the grand jurors' general dissatisfaction, including (i) frustration by the
inefficient use of their time; (ii) the lack of any mechanism in the district for the grand jurors to
express their frustrations with DOJ attorneys who appeared before them and/or to ask questions;
(iii) the grand jurors' dislike of the DOJ attorney's personality, which may have been rooted in
certain prejudices. OPR recommended that the district's grand jury coordinator be assigned the
role of assisting the grand jury on a regular basis in resolving scheduling problems and responding
to other questions and concerns as they arose.
Inappropriate Behavior During Trial: In the course of a discrimination case, the
defendant's attorney alleged that a DOJ attorney made a specific, inappropriate, offensive and
discriminatory comment to him in a telephone conversation. The complainant further alleged that
the DOJ attorney behaved in a dictatorial and bullying manner during the litigation, trying to force
the defendant into a settlement. The complainant also alleged that the DOJ attorney may have
violated the Hatch Act by writing speeches for a politician while employed by the Department.
The DOJ attorney admitted making the specific comment, but in an entirely different context than
that alleged by the complainant. As a result of his admission, the DOJ attorney's supervisors
removed him from the case, and officially reprimanded him. The complainant was informed that
the Department had taken appropriate remedial action and had reassigned the litigation.
The complainant was not satisfied by the Department's response and claimed that the
Department was "covering up" the matter. The complainant demanded that the Department hold
a public hearing. Those allegations were referred to OPR and OPR conducted an inquiry into both
the underlying allegations regarding the actions of the DOJ attorney in the litigation, and the
allegation of a "cover-up" by the Department. In addition, in the course of OPR's investigation,
the DOJ attorney's supervisor alleged that the DOJ attorney lied in his written response to OPR
by inaccurately reporting to OPR that he had advised his several reviewers and supervisors of his
telephone conversation with the complainant, including the alleged discriminatory comment,
immediately after it took place. OPR investigated that allegation as well.
While there was no dispute that the DOJ attorney had made the alleged discriminatory comment
during his telephone conversation with the complainant, OPR found no evidence to corroborate
either the complainant's or the DOJ attorney's account of the context in which the statement was
made. However, OPR found the DOJ attorney's version of the conversation to be the more
plausible, and found the DOJ attorney to be entirely credible during OPR's interview of him.
OPR found the complainant's allegation that the DOJ attorney had acted in a bullying and
dictatorial manner to be unsubstantiated in light of the failure of the complainant, in his interview
with OPR, to provide sufficient evidence to support his allegation. Moreover, the complainant
provided no independent corroboration to support his allegation that the DOJ attorney had
participated in political activities and the DOJ attorney denied having had any involvement in
political activities while employed by the Department. Therefore, OPR concluded that the
complainant's allegations that the DOJ attorney engaged in misconduct were unsubstantiated. OPR
also concluded that the Department had not engaged in a "cover-up," but found that the
Department had responded promptly and appropriately to the complainant's allegations. Finally,
OPR found the allegation that the DOJ attorney had lied in his written submission to OPR to be
unsubstantiated, finding as credible the DOJ attorney's statement to OPR that he notified his
supervisors and reviewers of his conversation with the complainant shortly after it occurred.
Instructing an Agent to Alter Reports: OPR investigated allegations made by a law
enforcement agent that a DOJ attorney had instructed the agent to alter a report of an interview
to include statements that the witness had not made and directed the agent to selectively document
pretrial interviews of witnesses, in order to avoid the creation of potentially exculpatory
statements. During the trial, the DOJ attorney requested that the agent be replaced because of a
personality conflict. OPR concluded that the allegations were wholly without merit. Moreover,
OPR concluded that the fact that the agent would make such baseless allegations raised serious
management concerns about his judgment, bias and ability to perform his duties. OPR referred
the matter to the agent's supervisors for appropriate action.
Failure to Advise Court of Lack of Any Legal Basis for Indictment: OPR investigated
findings of a court of appeals that the government had been derelict in failing to inform the district
court that there was no case law supporting charges in an indictment. The court of appeals vacated
and remanded the district court's decision denying the defendant's presentence motion to, among
other things, dismiss certain counts of an indictment on the grounds that the counts failed to charge
an offense. The defendant, who had pled guilty, also moved to withdraw his guilty plea. In a case
of first impression, the appellate court agreed that the statute in question did not cover the facts
at issue and reversed. The court of appeals then found that, although defense counsel was late in
discovering that his client had been wrongfully convicted, the government should have informed
the district court of the lack of legal authority for the indictment.
OPR concluded that the DOJ attorney handling the case had engaged in no misconduct. OPR
found that the district court had denied the defendant's motion without awaiting the government's
response. In addition, the defendant's motion had informed the district court that there was no
case law supporting the application of the statute to the facts at issue. Furthermore, on appeal,
the government informed the court of appeals that there was no reported decision directly on point.
Based on those facts and circumstances, OPR found that the DOJ attorney was not remiss or
derelict in any way in failing to inform the district court that there was no case law supporting the
charges in question.
Representing Family Member at Deposition in Private Litigation: OPR investigated
allegations that a DOJ attorney improperly, and on DOJ time, was acting as counsel to a former
employee of a corporation who was deposed in connection with a lawsuit brought against the
company by a competitor. The complainant asked whether the DOJ attorney was allowed to
represent non-government clients, and whether he was permitted to use the authority and facilities
of DOJ to do so. The complainant also asserted that the former employee and the DOJ attorney
had disclosed confidential company information and that the former employee had attempted,
"presumably on the advice of" the DOJ attorney, to persuade other employees to breach their
employment agreements. During the inquiry, OPR learned that the former employee was the
spouse of the DOJ attorney. OPR also learned that the DOJ attorney had taken annual leave in
order to attend the deposition in question. OPR concluded that, since the United States was not
a party to the lawsuit, the actions of the DOJ attorney were permitted by DOJ's standards of
conduct. OPR also determined that the allegations that the DOJ attorney had breached the
company's confidentiality and advised his spouse to encourage others to breach their employment
agreements were unsupported.
Unauthorized Disclosure to Defense Counsel: OPR investigated allegations that a DOJ
attorney had made unauthorized disclosures of investigative information to a defense attorney who
allegedly was a friend of the DOJ attorney. The disclosures allegedly included the names of
individuals under investigation and the identities of the investigators. The complainants stated that
the DOJ attorney acknowledged that the defense attorney was a close friend of his, and pointed
out that the defense attorney often represented individuals who were subjects of investigations
which he supervised. Through its investigation, OPR established that there was no evidence that
the DOJ attorney had made improper disclosures of information. OPR found that the limited
discussions between the defense attorney and the DOJ attorney were appropriate in the
investigative context. OPR also noted, and reported to the DOJ attorney's supervisor, that an
extremely distrustful and contentious relationship existed between the DOJ attorney and the
investigators, and that that antagonism was adversely affecting law enforcement efforts.
Failure to Disclose Newly-Discovered Brady Material: OPR investigated an allegation that
a DOJ attorney had failed to disclose Brady material in the trial of a defendant on drug distribution
charges. A sibling of the defendant had also been arrested and had pled guilty. As part of the
government's case, an agent was called to testify that a search had been made for tax returns filed
by the defendant or his sibling and that there was no record that either of them had ever filed tax
returns. During a break just prior to closing arguments, the DOJ attorney mentioned the testimony
of the agent to another investigative officer. That officer disagreed with the agent's testimony and
told the DOJ attorney that he had seen two tax returns filed by the defendant's sibling during the
investigation of another case. The DOJ attorney telephoned the IRS and asked for verification of
the information provided by the officer. According to the DOJ attorney, he was skeptical of the
officer's statements because the original search was believed to be accurate and, based on his prior
experience with the agent, he knew the agent to be highly reliable. On the other hand, the DOJ
attorney knew nothing about the officer who was the source of the contrary report. The DOJ
attorney decided not to advise the court or defense counsel of the officer's claims and proceeded
to make his closing argument wherein he referred to the agent's testimony that neither the
defendant nor his sibling had filed tax returns. The defendant was convicted. The following day,
the DOJ attorney learned that the defendant's sibling had indeed filed tax returns. He immediately
telephoned the defendant's attorney and the court and advised them of the facts. The defendant's
attorney filed a motion for a new trial based on new evidence. The court denied the motion,
finding that the tax returns were not material to the defendant's guilt or innocence.
OPR concluded that the DOJ attorney did not act unethically in deciding not to disclose the
officer's unconfirmed report to the defense or the court prior to the closing argument. OPR
found that the DOJ attorney did not know whether the officer's report was reliable or whether
the tax returns he claimed to have seen had actually been filed with the IRS. On the other
hand, the DOJ attorney had compelling evidence of non-filing based on the original search and
the sworn testimony of a trusted IRS agent. In addition, OPR found that the DOJ attorney took
prompt corrective action when he learned that the defendant's sibling had in fact filed tax
returns. Under the circumstances, OPR concluded that the DOJ attorney committed no
Operations of Federal Bureau of Investigation OPR
and Drug Enforcement Administration OPR
In addition to the functions described in the preceding sections, OPR assists and oversees the
operations of the Offices of Professional Responsibility in the Federal Bureau of Investigation
and the Drug Enforcement Administration. Consistent with 28 C.F.R. § 0.39a(i)(3), which
calls for the Counsel to prepare an annual report "reviewing and evaluating the activities of
internal inspection units" in the Department of Justice, this section summarizes the operations
of and significant developments in those offices in fiscal year 1994.
Federal Bureau of Investigation,
Office of Professional Responsibility
During fiscal year 1994, the Federal Bureau of Investigation's Office of Professional
Responsibility (FBI/OPR) was responsible for the investigation of allegations of misconduct
against the FBI's 23,319 employees, including 9,779 Special Agents. The office is part of the
Bureau's Inspection Division and reports to FBI leadership through the Assistant Director of
the Inspection Division. In fiscal year 1994 the office's professional staff consisted of a Deputy
Assistant Director, a Unit Chief, and six Supervisory Special Agents. Two additional Supervisory Special Agent positions were added to the FBI/OPR staff at the beginning of the fiscal
year, bringing the complement to eight, but by the end of the fiscal year efforts to reassign
agents from headquarters to the field had again reduced the staff to six Supervisory Special
Agents. A portion of the matters handled by FBI/OPR are referred to the field for investigation
under FBI/OPR supervision.
Significant Initiatives in Fiscal Year 1994: Two policy changes adopted by FBI Director
Louis J. Freeh during fiscal year 1994 had notable impact on the FBI's Office of Professional
Responsibility. First, in a policy directive dated January 3, 1994, the Director announced a
"bright line" policy with respect to the standards of conduct applicable to all FBI employees.
The policy reaffirmed that the FBI's continued effectiveness depended upon maintaining high
standards of integrity and provided that misconduct will be promptly investigated and punished.
The directive specified that dismissal from the FBI would be sought for such offenses as lying
under oath, failure to cooperate during an administrative inquiry, voucher fraud, theft of government funds or property, material falsification, and unauthorized disclosure of information,
and that the penalties for other types of misconduct would also be increased.
On February 23, 1994, the Director announced a major policy change delegating to senior
managers in the field and at FBI headquarters the responsibility for adjudicating many cases of
misconduct which according to FBI precedent call for a penalty of suspension of 14 days or
less. This initiative was designed to minimize the time required to process disciplinary matters.
Previously all such matters were adjudicated centrally by the Administrative Summary Unit in
the Personnel Division (ASU/PD). FBI/OPR retained the responsibility of conducting or
overseeing the investigation of allegations of serious misconduct.
The delegation order identified 19 categories of offenses that will continue to be adjudicated
solely by ASU/PD, such as discriminatory conduct (including 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.
FBI/OPR reviews completed investigative files for sufficiency and completeness in all matters.
The office also reviews investigative files to determine whether the matter involves an offense
which requires referral to ASU/PD for adjudication.
The delegation initiative has affected FBI/OPR in two principal ways. First, it has increased
FBI/OPR's advisory function since managers adjudicating misconduct cases seek guidance on
procedures and precedent from FBI/OPR. In addition, the delegation has required FBI/OPR
to take on a new, evaluative role by assessing the penalty likely to be applied to an offense.
In some cases, specific penalties are prescribed by statute or internal policy. In other cases,
the determination is made by referring to FBI disciplinary case precedent. A list of 274 cases
categorized by type of allegation and nature of penalty was distributed with the delegation order
as a guide. If FBI/OPR concludes that a matter can be appropriately addressed by a letter of
censure or a suspension of 14 days or less, the adjudication is made by a manager under the
delegation. If the misconduct calls for dismissal, demotion or suspension for more than 14
days, the case must be adjudicated by the Administrative Summary Unit/Personnel Division.
Statistical Summary of FBI/OPR Activities in Fiscal Year 1994: In fiscal year 1994,
FBI/OPR reported that it opened 535 matters involving allegations of misconduct against FBI
employees. This number represented an increase of only 4.5% over the number of allegations
received in fiscal year 1993. The office closed 580 matters (an increase of 23.7% over fiscal
year 1993), and 408 matters were pending at the end of the reporting period.
While the total number of allegations increased only slightly, FBI/OPR reported a marked
increase over fiscal year 1993 in the number of allegations in certain categories. For example,
FBI/OPR received 81 allegations of unauthorized disclosure of information in fiscal year 1994
versus only 12 such allegations in fiscal year 1993. Drug-related allegations increased from
11 in fiscal year 1993 to 28 in fiscal year 1994. These increases may be the result of the
increased emphasis placed on reporting of misconduct allegations under the "bright line"
policy, as well as more stringent scrutiny of employees' reports of pre-employment drug use.
Types of Allegations: FBI/OPR matters opened during fiscal year 1994 involved a wide
variety of allegations. The largest number of matters was categorized as allegations of
unprofessional conduct. This category, which accounted for 131 allegations against Special
Agents and 31 allegations against other employees, encompasses a wide variety of alleged
misconduct from complaints of discrimination to use of improper management methods. A
significant number of matters also involved allegations of unauthorized disclosure of
information, misuse of position, drug abuse or drug-related violations, and misuse of
During fiscal year 1994, 108 employees of the FBI became the subjects of federal or local
law enforcement investigations. Fifty-eight employees were arrested for violations of criminal
or traffic law. Seventeen of these employees were arrested for driving while intoxicated
(DWI)/driving under the influence (DUI), and one was arrested after a high speed chase. The
remaining 40 employees were arrested on a variety of criminal charges including assault/
battery, shoplifting, and disorderly conduct.
Disposition of FBI/OPR Matters: Of the 580 matters reported closed by FBI/OPR in fiscal
year 1994, 145 matters were closed administratively. This number included 43 cases in which
the subject employee resigned and 22 cases in which the subject employee retired prior to
conclusion of investigative activity or imposition of discipline. In addition, 80 cases were
administratively closed because the complaints were withdrawn, investigation revealed that they
were baseless, or for similar reasons.
The remaining 435 cases closed by FBI/OPR in fiscal year 1994 were adjudicated either by
ASU/PD (399 cases) or by Field and Division managers under the delegation order (36
cases). Allegations of misconduct were substantiated in 352 of the cases closed by FBI/OPR
in fiscal year 1994. Table 4 shows the disposition of matters closed by FBI/OPR in fiscal year
Table 4. Disposition of FBI/OPR Matters Closed in FY 1994.
|Disposition of FBI/OPR Matters Closed in FY 1994
|Closed Administratively by FBI/OPR
| Subject resigned
| Subject retired
| Allegations found to be baseless,
withdrawn, or closed for other reasons
|Adjudicated by Field/Division Managers
|Adjudicated by ASU/PD
FBI/OPR reported that a total of 461 disciplinary actions resulted from cases investigated
by the office in fiscal year 1994. This number exceeds the number of cases adjudicated in
fiscal year 1994 because some matters involved more than one employee. In addition, some
employees received more than one form of discipline, e.g., a suspension and a period of
probation. As a result of misconduct substantiated by FBI/OPR investigations, 232 employees
received letters of censure; 91 were placed on probation; 104 were suspended without pay; 2
were demoted; and 32 were dismissed from their positions. In addition, 149 other corrective
actions such as oral reprimands, counselling or additional training were taken as a result of
FBI/OPR investigations. Table 5 shows the number of disciplinary actions of each type that
involved Special Agents and other FBI employees.
Table 5. Agent/Non-Agent Disciplinary Actions, FY 1994
|Agent/Non-Agent Disciplinary Actions, FY 1994(6)
|Type of Action
|Letters of censure
|Placed on probation
Examples of Matters Investigated by FBI/OPR in Fiscal Year 1994:
Theft of Evidence and Drug Trafficking: The FBI initiated a drug trafficking investigation
aimed at identifying the person or persons who were attempting to sell heroin to several
individuals already under investigation by the FBI because of their drug trafficking activities. As
a result of the investigation, an agent was identified, and subsequently determined to have removed
heroin and cocaine from an FBI evidence control center, which he then attempted to sell to drug
traffickers. The agent identified the drug traffickers through internal FBI records and mailed them
heroin samples and offers to sell the drug to them. The agent was confronted with the results of
the investigation and confessed to having stolen the heroin from the evidence control room. He
was subsequently dismissed from the rolls of the FBI, arrested, and charged with conspiracy to
distribute heroin. The agent was sentenced to 300 months incarceration, fined $2,500 plus a
special assessment of $250, and given 5 years supervised probation.
Driving Under the Influence of Alcohol: An FBI agent driving a government vehicle late at
night struck and killed a pedestrian walking along the side of the road. Upon arriving at his
residence, the agent called 911 and reported hitting "something or someone" with his vehicle.
Police officers responding to the SA's residence detected the odor of alcohol and requested the SA
take a "breathalizer" test, which he refused. Other responding officers located a man's body in
the vicinity of the incident reported by the agent. A "six-pack" of beer was located beside the
victim. The agent was arrested by the police officers and charged with driving under the influence
of alcohol, failure to drive in the designated lane, and vehicular homicide. He retired prior to
initiation of disciplinary action.
Theft of Property: FBI/OPR initiated an investigation into the unexplained disappearance of
over $2,000 in cash from an evidence vault. Early investigation focused on the persons with
access to the vault. After exhausting other logical investigative steps, the principal and back-up
evidence control technicians were administered voluntary polygraph examinations. The principal
evidence control technician showed deception in responding to questions concerning the missing
money. During a subsequent polygraph examination, the technician confessed to stealing the
missing money and resigned from the FBI. The case was referred to the U.S. Attorney's Office.
The former employee agreed to make full restitution, pled guilty to one misdemeanor count of
theft of government property, and was sentenced to probation.
Report of Improper Gratuities: The FBI received an anonymous letter alleging that an agent
was living in a home provided by an FBI vendor and that the agent and other FBI employees had
accepted an expensive dinner from a businessman in appreciation for their work on a case. The
investigation determined that the agent's living arrangement was not improper, in that the owner
of the residence was a personal friend who had no connection to the FBI. No administrative action
was taken against the agent on those grounds. However, the investigation also determined that
the agents and employees who attended the dinner exercised poor judgment in accepting the
invitation without first consulting with an FBI ethics officer. The agents involved received
disciplinary actions ranging from counseling on the ethical prohibition on accepting gratuities for
the nonsupervisory staff to a letter of censure for the highest ranking supervisor present at the
Suspected Alcohol Abuse: An agent was requested by an airline ground supervisor to surrender
his weapon to the captain of a commercial airliner and was removed from the flight because some
members of the crew allegedly detected the smell of alcohol on his breath. The matter was
reported to the FBI by the Federal Aviation Administration. The FBI interviewed the airline
personnel, some of whom stated that the smell of alcohol on the agent's breath was pervasive and
that his eyes gave the appearance of alcohol consumption. The airline personnel indicated that the
agent comported himself in a courteous manner, although he questioned the motivation for
removing him from the flight. The captain of the aircraft never spoke with the agent. In his
interview with FBI/OPR, the agent was adamant in his denial that he had consumed alcohol prior
to the mid-day flight. He advised that he had consumed several mixed drinks the night before the
flight and that he felt ill from his breakfast the morning of the flight. The agent also advised that
his eyes are naturally bloodshot and that that condition may have given the airline crew the
impression that he was under the influence of alcohol. He volunteered to take a polygraph
examination. After reviewing all the witness statements, the FBI concluded that the allegations
of misconduct were unsubstantiated.
Lack of Candor Alleged: FBI/OPR investigated an allegation that an agent had purposely
deceived a supervisory official about the operational status of a federal/local task force. The agent
leased an off-site location for the task force and assigned a number of FBI agents to work there.
However, the local police officers who were to make up a portion of the task force were not
promptly assigned due to delays in obtaining a memorandum of understanding. When the
supervisor visited the task force office, the agent allegedly had a coworker invite a number of
police officers to be present so as to give the impression that the task force was operational. The
agent denied the allegations, but statements from a number of coworkers substantiated the
allegations. The agent retired during the course of the inquiry and the matter was administratively
Drug Enforcement Administration
The Drug Enforcement Administration's Office of Professional Responsibility (DEA/OPR), a
component of the Inspection Division, is responsible for investigating misconduct allegations
against employees of the DEA. At the end of fiscal year 1994, DEA/OPR had 30 full-time
employees, including 24 full-time inspectors to serve a total of 6,871 DEA employees. In addition
to the headquarters office, DEA/OPR maintains branch offices in Los Angeles and Miami.
Office of Professional Responsibility
Statistical Summary of DEA/OPR Activities in Fiscal Year 1994. During the fiscal year,
DEA/OPR opened a total of 344 new matters and closed 271 matters. The number of matters
pending at the end of the fiscal year rose 19% to 443 matters. The number of employees
disciplined by DEA in matters related to DEA/OPR investigations is shown in table 6.
Table 6. Disciplinary Actions Involving DEA Employees
|Disciplinary Actions Involving DEA Employees
FY 93 - FY 94
|Type of Action
|Letters of Reprimand
The types of misconduct allegations most frequently investigated during the year included
unauthorized disclosure of information, theft, misuse of government vehicles or other property,
improper relationship with known criminals and informants, other unprofessional conduct
(including sexual harassment, insubordination, falsifying records, and abuse of authority), and
drug and alcohol related offenses.
Examples of Matters Investigated by DEA/OPR During Fiscal Year 1994:
Theft of Government Funds: The Internal Revenue Service, Criminal Investigative Division,
detected a pattern of suspicious bank deposits by a DEA agent. The IRS noted that the agent had
opened a new account and made a number of cash deposits of several thousand dollars each, all
made with $100 bills. The agent and his wife, who was also a DEA employee, were both placed
in a non-duty status. DEA/OPR participated in an extensive investigation involving freezing and
examining the couple's bank accounts, safe deposit boxes, mutual funds and investment accounts.
As a result of the investigation, it was discovered that the agent had stolen $700,000 in currency
during an undercover money laundering investigation. The agent was found to have deposited
$400,000 in various safe deposit boxes, and invested other sums in gold, jewelry, real estate, and
Both employees resigned from DEA and signed an agreement to make restitution. The agent
who stole the money pled guilty to theft of government funds and was sentenced to 24 months
incarceration, 36 months supervised release, and a fine of $25,000. His wife was not charged.
Alleged Misuse of Official Position: An attorney complained that a DEA agent had used his
position to obtain sensitive information for use against the attorney's client, who was involved in
litigation with the DEA agent. DEA/OPR investigated the matter and confirmed that the agent had
obtained information on the client through an intelligence data base, telephone company records
obtained through subpoena, and police records obtained through deceptive means. The agent was
removed from his position.
Positive Drug Test Result: A DEA employee selected for random drug testing under the DEA's
Drug Deterrence Program tested positive for the presence of cocaine metabolites. The employee
reported taking a number of prescription and non-prescription medications under medical
supervision, but denied any other drug use. A medical officer determined that the employee's use
of the identified drugs would not have caused the positive test result. The employee's removal
was proposed, but the employee resigned prior to issuance of a final decision.
Suspected False Statements and Misuse of Government Vehicle: A DEA employee was involved
in a minor automobile accident while driving an assigned government vehicle off duty. Although
the employee told a DEA supervisor that he was alone in the vehicle, an inquiry revealed that he
was accompanied by family members and on a personal errand at the time of the accident. In
addition, records indicated that the employee had purchased gasoline for the vehicle on non-duty
days on numerous occasions. The employee was suspended for 60 days without pay.
Unauthorized Disclosure of Sensitive Information: FBI sources forwarded to the DEA a
complaint alleging that a DEA agent had obtained sensitive information on numerous individuals
and released the information to an acquaintance. DEA/OPR investigated and learned that the agent
had obtained criminal history information on at least six individuals and disclosed the information
to the acquaintance. The inquiry also revealed that the agent had queried an intelligence database
on three individuals, but the agent denied releasing the results of those queries. The DEA
employee was suspended without pay for five days.
We are pleased to report that in fiscal year 1994, Department employees, and particularly
Department attorneys, continued to perform their duties in accordance with the professional
standards expected of the Nation's principal law enforcement agency. During the period, OPR's
mission focused on the investigation of allegations of attorney and law enforcement agent
misconduct arising from the prosecutive, investigative and litigative functions of the Department.
The number of matters opened involving allegations of misconduct by Department attorneys
decreased significantly from the 1993 fiscal year. The decrease appears to be attributable to
changes in jurisdiction and case reporting methodology, as well as an unusually high number of
attorney matters opened in the previous fiscal year. Although it is not reflected in the statistical
data, during this fiscal year OPR received an increased number of complex cases involving
allegations of attorney misconduct.
Also during this fiscal year, OPR implemented a number of policy initiatives. These included
a policy under which OPR completes investigations in matters where the subject attorney resigns
or retires prior to completion of the investigation and a policy under which the results of OPR
investigations are disclosed to the public in certain cases. The full impact of these changes and
their ultimate effect on OPR's workload will be not be known until later years.
The Offices of Professional Responsibility of the FBI and DEA performed their integrity-related
functions in an effective manner. Those offices fully complied with OPR's reporting requirements
and continued to consult with this Office on an ongoing basis on matters of significance.
In the case of the FBI, although there was a slight increase in the number of allegations received
during the fiscal year, there was a substantial increase in the number of employees disciplined for
serious misconduct. This increase appears partly attributable to the Director's "bright line" policy
regarding the enforcement of the standards of conduct. In addition, at the close of the fiscal year,
FBI/OPR's Supervisory Special Agent staff totaled six full-time employees. We believe that this
staffing level was not adequate to address FBI/OPR's substantial caseload and note that additional
staffing was subsequently authorized. We will review FBI/OPR's employee resources, as well as
the effects of the FBI's field delegation policy, in connection with our annual report for fiscal year
OPR Annual Reports || OPR Home || Justice Home Page
Updated page January 30, 1998
----- footnotes ------
1. Attorney General Order No. 1638-92 dated December 11, 1992. Shortly after the close of fiscal year 1994, the
order was superseded by Attorney General Order No. 1931-94 dated November 8, 1994. The new order provides
that OPR is responsible for the investigation of allegations of misconduct by Department attorneys which relate to their
authority to investigate, litigate and provide legal advice, as well as allegations of misconduct by law enforcement
personnel when they are related to allegations of misconduct by attorneys within the jurisdiction of OPR.
2. Because of changes in OPR's jurisdiction and its focus on the investigation of litigation-related professional
misconduct, in fiscal year 1994 the Office discontinued its general oversight of the internal inspection units in the
Bureau of Prisons, Immigration and Naturalization Service, and United States Marshals Service, whose activities are
now generally overseen by the Office of the Inspector General. Consequently, beginning with this report OPR has
discontinued reporting on the operations of the internal inspection units in those components of the Department.
3. The policy was announced in a December 13, 1993 memorandum from then Deputy Attorney General Philip
4. Of the 37 complaints received from private attorneys, 33 involved allegations of misconduct against Department
5. All of the subjects in the cases discussed below are referred to by the masculine pronoun regardless of the gender
of individual subjects in order to protect their privacy.
6. Statistics for disciplinary actions in prior fiscal years did not distinguish actions against Special Agents from
actions against other employees.
7. This total represents the number of actions taken in fiscal year 1993 in the four specified disciplinary categories.
The total number of employees subject to administrative actions of all types as a result of DEA/OPR investigations,
as reported in this Office's report for fiscal year 1993, was 101. This figure included 35 employees who received
letters of caution and one non-DEA employee who was removed from a task force as a result of a DEA/OPR
8. In addition, 27 DEA employees received letters of caution as a result of DEA/OPR investigations.