Office of Professional Responsibility
Fiscal Year 1998 Annual Report
Office of Professional Responsibility
Annual Report for Fiscal Year 1998
Jurisdiction and Functions of OPR
Statistical Summary of OPR Activities in FY 1998
Examples of Matters Investigated by OPR in FY 1998
FBI Office of Professional Responsibility
Significant Initiatives in FY 1998
Statistical Summary of FBI/OPR Activities in FY 1998
Examples of Matters Investigated by FBI/OPR in FY 1998
DEA Office of Professional Responsibility
Significant Initiatives in FY 1998
Statistical Summary of DEA/OPR Activities in FY 1998
Examples of Matters Investigated by DEA/OPR in FY 1998
Table 1. Sources of Misconduct Complaints Received in FY 1998 3
Table 2. Subject Matter of Misconduct Complaints Received in FY 1998 4
Annual Report for Fiscal Year 1998
The Office of Professional Responsibility was established in the Department of
Justice by order of the Attorney General dated December 9, 1975, in order to ensure that
Department employees perform their duties in accordance with the professional standards
expected of the nation's principal law enforcement agency. Pursuant to 28 C.F.R.
§0.39a(i)(3), the head of the Office, the Counsel on Professional Responsibility, is required
to submit an annual report reviewing and evaluating the internal inspections units in the
components of the Department. This is the Office's twenty-third annual report to the
Attorney General and it covers fiscal year 1998 (October 1, 1997 - September 30, 1998).
Jurisdiction and Functions of OPR
The Office of Professional Responsibility (OPR) is responsible for investigating
allegations of professional misconduct by Department of Justice attorneys that pertain to the
exercise of their authority to investigate, litigate or provide legal advice. The Office also has
jurisdiction to investigate allegations of misconduct by law enforcement personnel when
they are related to allegations of misconduct by attorneys within the Office's jurisdiction.
OPR also investigates other matters when requested or authorized to do so by the Attorney
General or the Deputy Attorney General.
OPR reports the results of its investigations to appropriate management officials in
the Department. It is those officials, and not OPR, who are responsible for imposing any
disciplinary action that may be appropriate. In matters where disciplinary action for
professional misconduct against a Department attorney appears warranted, OPR includes in
its report a recommended range of discipline. Although OPR's recommendation is not
binding on the management official responsible for proposing discipline, the management
official is required to consult with the Office of the Deputy Attorney General in the event the
official wishes to deviate from the recommended range.
OPR is also responsible for overseeing 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 have
jurisdiction over the investigation of allegations of misconduct against employees of the FBI
and DEA, respectively. OPR monitors the investigative and other activities of these offices
through the receipt of contemporaneous reports, monthly reports, and frequent
communication with FBI and DEA internal investigative unit personnel.
OPR also reviews case files and statistical data to identify any misconduct trends or
systemic problems in the programs, policies, and operations of the Department. Trends and
systemic problems are brought to the attention of appropriate management officials.
OPR is also responsible for preparing summarized reports of certain OPR
investigations for public release pursuant to a policy adopted in 1993. Subject to privacy and
law enforcement considerations, the policy provides for the disclosure of the results of OPR
investigations in matters involving a finding of intentional professional misconduct, in
matters involving allegations of serious professional misconduct in which there has been a
demonstration of public interest, or in matters in which the Department attorney who was the
subject of the allegations requests such disclosure. Under the public disclosure procedures,
OPR prepares a proposed public report which is initially reviewed by the Office of
Information and Privacy and then provided to the subject of the allegations and his
supervisors for comment. OPR then transmits the proposed public report, along with the
comments and OPR's recommendation on whether or not the report should be released, to
the Office of the Deputy Attorney General for its consideration. The final determination on
whether to disclose publicly the results of an OPR investigation is made by the Attorney
During fiscal year 1998, OPR continued to: (1) conduct expedited investigations of
judicial findings of attorney misconduct or judicial criticism, (2) complete misconduct
investigations where appropriate despite the resignation or retirement of the Department
attorney who was the subject of allegations, and (3) cooperate increasingly with state bar
licensing and disciplinary authorities in matters of mutual interest. These policies and
practices, which were implemented at the direction of the Attorney General and the Deputy
Attorney General, are designed to improve the OPR process and the overall integrity program
in the Department. OPR attorneys also increased their participation in educational and
training activities both within and outside the Department.
During the fiscal year, OPR also increased its level of participation in non-investigative, policy and project-oriented activities of the Department. For example, OPR
attorneys participated in the Department's consideration of, and proposed alternatives to, the
proposed Citizens Protection Act of 1998.(1) Similarly, OPR attorneys participated in a
working group responsible for the development of interim regulations relating to the
protection of FBI whistleblowers and in a working group responsible for the development
of regulations governing the use of contempt authority by immigration judges in
Statistical data pertaining to OPR's investigative activities for fiscal year 1998 are
set out in the tables below. The changes in jurisdiction and case-reporting methodology,
which were described in detail in the Annual Report for Fiscal Year 1996, have been
integrated into OPR's case reporting system.(2)
As a result, OPR statistical data for fiscal year 1998 are generally comparable to the data
from the previous fiscal year.
Statistical Summary of OPR Activities in Fiscal Year 1998
Matters Opened in Fiscal Year 1998. OPR opened a total of 77 matters in fiscal
year 1998, all but one of which involved allegations of misconduct on the part of Department
attorneys. The 77 matters opened involved 106 separate allegations of misconduct. The 77
matters opened represented about a 20% decrease from the 98 matters opened in fiscal year
The number of complaints received from certain categories of sources and the
percentage of complaints falling into each category, are set out in table 1, below.
Sources of Misconduct Complaints Received in FY
The subject matter of the 106 allegations contained in the 77 matters opened by OPR
in fiscal year 1998 is set out in table 2, below.
||Number of Complaints
||Percent of Total
|Department components & employees
|Judicial opinions & referrals
(2) In our report for fiscal year 1997, we noted that one of the significant changes was the implementation of the current
practice of counting for statistical purposes only matters that become full investigations handled by OPR attorneys. We
noted that this change had the effect of reducing statistically the number of matters opened. In addition to full investigations,
OPR also receives, reviews and conducts inquiries into numerous other matters involving allegations of misconduct on the
part of Department employees.
Subject Matter of Misconduct Allegations Received
in FY 1998
Matters Closed in Fiscal Year 1998. OPR closed a total of 83 matters in fiscal year
1998, three of which involved allegations of misconduct against non-attorney personnel.
OPR concluded that Department attorneys or attorneys assigned to the Department had
engaged in professional misconduct in 12, or 15%, of the 80 attorney matters closed during
the fiscal year.(3) The number of matters involving findings of professional misconduct on the
part of Department attorneys decreased from the previous period, while the percentage of
matters resulting in findings of professional misconduct decreased marginally.(4)
Disciplinary or other action was proposed or taken against a total of 11 attorneys as
a result of OPR findings of professional misconduct. Disciplinary actions included the
proposed termination of one attorney, the transfer of one attorney from his supervisory
position, two suspensions, three written reprimands, and three admonishments. In addition,
in four matters OPR's investigative results involving current or former Department attorneys
were or will be referred to state bar disciplinary authorities.
|Abuse of prosecutorial or investigative authority
|Misrepresentation to the court or opposing counsel
|Failure to perform duties properly, negligence
|Unauthorized release of information (including grand jury information)
|Failure to disclose exculpatory, impeachment or discovery material
|Improper oral or written remarks to the court or grand jury
|Failure to comply with DOJ rules and regulations
|Conflicts of interest
Examples of Matters Investigated by OPR in Fiscal Year 1998(5)
1. Failure to Disclose Brady/Giglio Material. A U.S. Court of Appeals found that the
government violated Brady by failing to disclose to the defense three items of information
for impeachment purposes, and reversed one conviction in a wire fraud and RICO case and
remanded the remaining convictions for a determination of whether a new trial was
warranted. As OPR later learned, in a previous opinion vacating convictions and remanding
the same case following an earlier trial, the Court of Appeals had identified another item of
information that should have been disclosed for impeachment purposes.
OPR conducted an investigation and concluded that, with respect to three of the four
items the Court of Appeals found should have been disclosed, the DOJ attorney's failure to
learn of and/or disclose the evidence was the result of carelessness and an inadvertent
oversight that did not constitute professional misconduct. However, with respect to the
fourth item, a set of rough notes of an interview, OPR learned that prior to an earlier re-trial
of the case, the defense had made a specific Brady request which included this information.
OPR found that, despite the request, the attorney made no attempt to obtain or review the
notes before declining to produce them even though the attorney knew the notes existed and
could readily have been obtained. OPR concluded that the DOJ attorney acted in reckless
disregard of his obligation to inquire into the existence of Brady material in response to a
specific defense request. The DOJ attorney received an oral admonishment.
2. Violation of Petite Policy. A criminal defendant alleged that a DOJ attorney violated
DOJ's Petite policy concerning dual prosecutions by failing to obtain DOJ approval before
prosecuting the defendant for the same acts that had given rise to an earlier conviction in
state court for a violation of state law.
OPR conducted an investigation and found that the policy had been violated. In their
OPR interviews, the attorney and his supervisor, who approved the federal prosecution,
stated that they did not seek DOJ approval because they did not believe that the policy was
applicable to the case. OPR concluded that the supervisor acted in reckless disregard of his
duty to comply with DOJ policy by failing to have a working understanding of the dual
prosecution policy, based on the supervisor's experience level and the fact that the supervisor
was responsible for requesting approval. OPR concluded that the subordinate's decision that
the policy did not apply to the case was a mistake resulting from his inexperience and from
the supervisor's concurrence that the policy did not apply. No discipline was imposed on the
supervisor because he was no longer employed by DOJ.
3. Failure To Timely Correct Magistrate Judge's Finding. A U.S. District Court
adopted a U.S. Magistrate Judge's finding that the government had threatened a defense
attorney with criminal prosecution under 18 U.S.C. §207, which places employment
restrictions on former government officers and employees, unless the attorney withdrew from
representing the defendant in a criminal matter. The District Court found that §207 did not
prohibit the defense attorney from representing the defendant. Because the government's
alleged threat of prosecution caused the Magistrate Judge to allow the defendant to request
new counsel rather than risk prosecution of the attorney, the District Court called the
government's actions "reprehensible" and found they came very close to violating the
defendant's Sixth Amendment right to counsel.
OPR conducted an investigation and concluded that the DOJ attorneys involved in
the matter did not commit professional misconduct because they did not, in fact, threaten the
defense attorney with prosecution in the event the attorney did not withdraw from the
representation. However, OPR found that the attorneys exercised poor judgment when they
failed to correct in a timely manner the Magistrate Judge's erroneous impression that the
government had made such a threat. OPR found that their failure to make the correction
promptly when the Magistrate Judge made the finding or while the District Court was
reviewing the Magistrate Judge's report and recommendation caused the District Court to
conclude that the attorneys had acted improperly.
4. Unauthorized Disclosure of Information. A U.S. District Judge requested that OPR
investigate the disclosure of confidential government information that was subject to a
sealing order in a civil case and that OPR review a DOJ attorney's failure to notify the Judge
when the attorney discovered that the information had been disclosed.
OPR conducted an investigation and found that the documents that had been
disclosed had not been subject to the sealing order and did not originate from DOJ. OPR
also found it unlikely under the circumstances that, of all the government personnel who had
access to the documents, DOJ employees were responsible for their disclosure. Finally, OPR
concluded that the DOJ attorney who discovered there had been a disclosure did not commit
professional misconduct by failing to notify the Judge but acted appropriately when he
referred the matter to the investigative office of an involved agency.
5. Unauthorized Practice of Law. OPR investigated a referral from a DOJ component
that one of its attorneys admitted he was not actively licensed to practice law because he had
failed to complete the requisite continuing legal education courses and had failed to pay Bar
dues. According to the referral, when the attorney first realized he was not properly licensed,
he failed to take affirmative action to advise his supervisors and to obtain an active license.
As the component informed OPR, it was only when the attorney was asked by DOJ to
complete a certification of licensure that he admitted he was not properly licensed.
OPR found that the attorney exercised poor judgment in failing to inform DOJ
promptly that he lacked an active license to practice law. The attorney was prohibited from
continuing his representation of the government until he obtained a proper license, which
included completion of the required hours of continuing legal education and payment of past
dues and fines. In addition, the attorney received an oral reprimand and was referred to the
6. Failure to Disclose Brady/Giglio Material. A U.S. Court of Appeals reversed
convictions in a money laundering and drug conspiracy case because the government failed
to disclose impeachment material contained in a series of tape-recorded telephone
conversations between an incarcerated cooperating witness and a law enforcement agent with
whom the cooperator was conducting a clandestine sexual affair. The Court of Appeals held
that comments the agent made to the cooperator during these conversations constituted
governmental promises of leniency in sentencing that should have been disclosed as Giglio
OPR conducted an investigation and found that, months prior to trial, after the affair
between the cooperator and the agent had been discovered, the lead DOJ attorney prosecuting
the case obtained copies of all of the taped conversations and personally reviewed them to
determine whether they contained Brady/Giglio information. After this review and
discussions with co-counsel about the content of the tapes, the attorney made an assessment
that the conversations between the cooperator and the agent were personal in nature and were
unrelated to the case, and therefore were not discoverable. Three months before trial, the
DOJ attorneys disclosed to the trial court and the defense the existence of the affair and the
existence of the tape-recorded conversations, but declined to produce the tapes based on the
assessment that they contained no discoverable information.
The lead DOJ attorney provided OPR with a reasonable and credible explanation for
his assessment of the tapes' discoverability. Without deciding whether the Court of Appeals'
assessment or the DOJ attorney's assessment of the tapes' impeachment value was correct,
OPR concluded that the attorney's actions in reviewing the tapes and making a considered,
good faith assessment of their discoverability fulfilled his professional obligations even
though the Court of Appeals subsequently disagreed with his conclusions. OPR therefore
found that the attorney did not commit professional misconduct.
7. Failure to Disclose Rule 16 Material. The attorney for a defendant charged in U.S.
District Court with transporting a large quantity of drugs alleged that the government failed
to disclose in a timely manner material the defendant had requested pursuant to Rule 16 of
the Federal Rules of Criminal Procedure. Specifically, he alleged that the government
disclosed too late items including statements the defendant made at the time of arrest,
photographs taken by law enforcement officers, and the government's analysis of fingerprint
evidence. The District Court Judge criticized the performance of the law enforcement
officers in the case for failing to disclose the existence of these items to the prosecutor and
stated in an order that he would consider assessing costs against the government, though he
also stated that the prosecutor's office did not appear to be at fault. Based upon evaluation
of the effects of the late disclosures, the government decided to dismiss the indictment.
OPR investigated the District Court Judge's criticism to determine whether the two
DOJ attorneys assigned to the case had properly prepared it for prosecution and concluded
that both performed appropriately under the circumstances. OPR found that the attorney
initially assigned to the matter took appropriate and reasonable steps to ensure that law
enforcement officers provided him with all the evidence in the case and that the second
attorney who was assigned to the matter after the disclosure problems first came to light took
appropriate though ultimately unsuccessful steps to gather the needed information. OPR
found that both attorneys promptly informed the defendant and the District Court Judge upon
their discovery of the additional evidence.
8. Abuse or Misuse of Official Position. OPR investigated an allegation made by a
confidential informant that he had a sexual relationship with the DOJ attorney handling the
case for which he was providing information. The attorney denied that he had a sexual,
romantic, or other kind of relationship with the informant.
OPR concluded that the allegation was unsubstantiated. OPR found that the
confidential informant had made inconsistent and contradictory statements about the alleged
sexual relationship, was willing to discuss it only if the government dismissed pending
fugitive charges against him, and was unable to provide any evidence (and OPR found none)
to corroborate that he had any kind of relationship with the attorney.
9. Alteration of a Court Document. OPR investigated an allegation that a DOJ attorney
substituted corrected pages in a search warrant affidavit that already had been reviewed and
signed by a U.S. Magistrate Judge and, without informing the Magistrate Judge, filed the
corrected version with the clerk of the court as if it were the original that the Magistrate
Judge relied upon in issuing the warrant. Soon after the corrected version of the affidavit
was filed, another DOJ attorney learned what had happened and immediately directed that
the Magistrate Judge be informed and the corrected version be withdrawn. The DOJ attorney
who filed the corrected version admitted filing it but denied any improper intent.
OPR found that the attorney had no intent to deceive the court and noted that the
corrections were substantively truthful and that they neither appreciably increased nor
diminished probable cause. However, OPR considered neither factor to excuse passing the
corrected version off as the original. OPR found that the alterations had the effect of
concealing potential grist for cross-examination of the affiant in any trial that might be held
in the underlying matter. OPR concluded that, by permitting the filing in court of a corrected
affidavit as if it were the original one reviewed and signed by the Magistrate Judge, the
prosecutor acted in reckless disregard of the obligation not to advance as genuine an altered
court document. OPR found the obligation to be clear and unambiguous and noted that the
attorney was an experienced prosecutor. OPR also noted that the prohibition applies whether
or not the alterations have a legal effect. The attorney received a written reprimand.
10. Improper Coercion or Witness Intimidation. A U.S. Court of Appeals found that a
DOJ attorney acted improperly by warning the attorney for a potential defense witness, just
days prior to trial, that if the witness testified for the defense, the government would
"revoke" the witness' immunity and prosecute him. The witness previously had appeared
before the grand jury, pursuant to court-ordered immunity, and had been warned by the DOJ
attorney of the consequences of giving false testimony.
OPR conducted an investigation and concluded that the DOJ attorney's statement to
the witness' attorney was not improper. OPR found that the DOJ attorney did not threaten
to "revoke" the witness' immunity, but stated merely that it would not be applicable were the
witness voluntarily to testify for the defense. OPR also found that when the DOJ attorney
learned that the witness might testify, he advised the witness' attorney of the potential for
self-incrimination, advice he had not given earlier.
11. Misrepresentation to an Administrative Agency. OPR investigated an allegation that
a DOJ attorney, while noting an appeal from an adverse decision in his personal Equal
Employment Opportunity Commission (EEOC) action against DOJ, incorrectly claimed to
have learned of the decision several days after he actually did, thereby making his otherwise
untimely appeal notice appear to be timely.
OPR conducted an investigation and concluded that the incorrect statement was the
result of a mistake and did not constitute professional misconduct. OPR credited the
attorney's assertion that he did not know the date was incorrect at the time he provided it.
The post office did not give the attorney a document recording the true date on which he
received the adverse decision. The markings on the envelope in which the decision was
mailed could reasonably have been interpreted as supporting receipt on the date the attorney
claimed. OPR found that the attorney had a basis, albeit an imperfect one, to believe that the
date he was providing was correct. In addition, OPR was persuaded by the attorney's claim
that, had he thought timeliness was an issue, he would have raised it openly with the EEOC
as he had earlier in the litigation when faced with the same situation.
12. Attempt to Breach Attorney-Client Privilege. A private attorney alleged that a DOJ
attorney attempted to breach the attorney-client privilege in an EEOC proceeding. The
plaintiff in the proceeding, a former DOJ employee, filed a motion pro se to extend time to
oppose DOJ's motion for dismissal on the basis that he had hired a new attorney who needed
more time to prepare the opposition. The extension motion quoted the plaintiff's former
attorney as stating that "upcoming trials" in other cases prevented him from properly
representing the plaintiff in the EEOC proceeding. The former attorney alleged that, after
the extension motion was filed, the DOJ attorney called him, stated that the plaintiff had
disparaged the former attorney's ability to represent him, and tried to persuade him to reveal
the supposedly "real" reason he was replaced.
OPR conducted an investigation and concluded that the DOJ attorney did not engage
in professional misconduct. OPR found that, by purporting to quote the former attorney on
the reasons he was replaced, the extension motion made the reason for the replacement a
material issue which the DOJ attorney had the right to pursue with the former attorney.
13. Failure to Provide Discovery in a Civil Matter. A U.S. District Court criticized a
DOJ attorney for failing to provide discovery to a plaintiff in a civil matter. After the
attorney admitted that a discovery deadline set by the Court had not been met as a result of
logistical difficulties on the part of the defendant agency in obtaining material, the Court
issued an order reprimanding the attorney for failing to participate in good faith in discovery.
When the attorney acknowledged in a motion for reconsideration that he had erred by not
seeking an extension of the deadline and by not keeping the Court apprised of the
defendant's efforts to comply with discovery, the Court issued an order ascribing the
problems to poor judgment rather than a lack of good faith on the attorney's part.
OPR conducted an investigation and concluded that the DOJ attorney did not engage
in professional misconduct or act in bad faith. OPR found that the attorney notified the
plaintiff's attorney when he learned that the deadline would not be met, but exercised poor
judgment in failing to notify the Court as well and in failing to seek an extension.
14. Unauthorized Disclosure of Information. During the course of an unrelated
investigation, OPR learned that a DOJ attorney brought the draft of a superseding indictment
home for the attorney's spouse to review before the superseding indictment was returned but
after the original indictment in the case had already been returned and filed.
OPR conducted an investigation to determine whether the DOJ attorney violated Rule
6(e) of the Federal Rules of Criminal Procedure governing grand jury proceedings or
otherwise improperly disclosed confidential information. OPR found that the attorney
brought the draft superseding indictment home so that the attorney's spouse, a non-practicing
attorney, could read the draft to judge whether its recitation of complex facts was clear to
someone unfamiliar with the case. OPR also found that the attorney was unaware that his
co-counsel in the case had revised the original indictment based on new information in
documents that had been obtained pursuant to grand jury subpoenas, and that he believed that
the superseding indictment contained only revised language describing facts already made
public in the original indictment. OPR concluded that the attorney did not commit
professional misconduct but exercised poor judgment in deciding to bring a non-public, draft
prosecution document home for the spouse to review. The attorney received an oral
admonishment and the court was notified of the inadvertent Rule 6(e) disclosure.
15. Improper Closing Argument. In decisions it issued in two criminal cases, a U.S.
Court of Appeals criticized a DOJ attorney for making improper statements during the
government's rebuttal closing arguments. The Court affirmed the convictions in both cases.
OPR conducted an investigation and concluded that the attorney, who explained in
his OPR interview why he believed his statements in the two arguments were appropriate
under the circumstances of the two cases, did not commit professional misconduct. OPR
found that the closing argument case law in the circuit did not provide clear and precise
guidelines regarding the type of argument the Court considered inappropriate. OPR
recommended that the attorney's component consider conducting training specifically
addressing the nuances of the circuit's closing argument case law.
16. Mischaracterization of Evidence. A U.S. Court of Appeals found that a DOJ attorney
during his closing argument mischaracterized evidence that had been admitted at trial.
OPR conducted an investigation and concluded that the attorney did mischaracterize
the evidence but did not intentionally do so in order to mislead the jury. OPR found,
however, that in mischaracterizing the evidence, the attorney acted in reckless disregard of
his obligation not to do so. Although the attorney contended that the comments he made
were not entirely inaccurate and that the potential consequences were not as severe as the
Court of Appeals had described, OPR found that the evidence he mischaracterized was
unambiguous. The DOJ attorney received an oral admonishment.
17. Subornation of Perjury; Misrepresentation to the Court. OPR investigated an
allegation that a DOJ attorney offered into evidence at a hearing a witness' testimony he
knew or should have known was false and two documents he knew or should have known
contained false information.
OPR conducted an investigation and found that the attorney believed, reasonably, that
the witness' testimony was not false and that there was no indication it was, in fact, false.
OPR also found that one of the two documents cited did not contain false information.
Although OPR found that the other document did contain some information that was false,
OPR concluded that the attorney acted appropriately in offering the document because it
contained accurate factual information that was material to the proceeding. OPR found that
the attorney reasonably did not know some other, immaterial information the document
contained was false.
18. Breach of Plea Agreement. A U.S. Court of Appeals found that the government
breached its plea agreement with a defendant when, at the sentencing hearing, a DOJ attorney
made statements supporting the view that the defendant was responsible for a greater amount
of drug trafficking than the government had stipulated to in the plea agreement. The attorney
maintained that his remarks were made only in response to a request by the District Court
Judge for information. The Court of Appeals remanded the case for resentencing.
OPR conducted an investigation and concluded that, although the remarks were
inappropriate, the attorney did not commit professional misconduct. OPR found that the
attorney did not intend to breach the plea agreement or to make any improper remarks.
However, OPR concluded that, under all of the circumstances, the attorney should have
realized that the remarks went beyond what was permissible under the terms of the plea
agreement. OPR also concluded that the attorney could have avoided making the remarks,
some of which went beyond the information requested by the District Court Judge. OPR
recommended that the attorney's component consider the attorney's conduct as a
19. Conflict of Interest. A federal inmate alleged that the DOJ attorney who prosecuted
his case had a conflict of interest because, during the time that the DOJ attorney and the
inmate's defense attorney were negotiating his guilty plea, the two attorneys were also
negotiating the possible formation of a law partnership.
OPR conducted an investigation and found that the DOJ attorney withdrew from the
inmate's case as soon as the DOJ attorney and the defense attorney began discussing the
possibility of a law partnership. OPR concluded that the DOJ attorney recognized the
potential conflict of interest and took appropriate action.
20. Misrepresentation/Misleading the Court. A U.S. Court of Appeals criticized a DOJ
attorney for failing to advise the District Court Judge at sentencing that he could not depart
upwardly in a second degree murder case on account of the victim's death. The Court of
Appeals found it self-evident that the U.S. Sentencing Guidelines already had taken into
account the fact of the victim's death in setting the guideline range for second degree murder.
Although the Court of Appeals affirmed the sentence based on the defendant's knowing
waiver of any objection to the upward departure, it called the DOJ attorney's conduct at
OPR conducted an investigation and concluded that the attorney did not commit
professional misconduct. OPR found that, prior to the sentencing hearing, the District Court
Judge had not given notice of his intent to depart upwardly, a departure the government was
not seeking, so that the attorney had no opportunity to familiarize himself with the relevant
provisions of the Sentencing Guidelines. Also, this was the first murder case the attorney
had handled with an issue involving a sentencing departure.
Operations of Federal Bureau of Investigation OPR
and Drug Enforcement Administration OPR
As noted in the preceding section, OPR assists and oversees the operations of the
Offices of Professional Responsibility in the FBI and the DEA. Consistent with 28 C.F.R.
§ 0.39a(i)(3), which provides 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
Federal Bureau of Investigation
The FBI's Office of Professional Responsibility (FBI/OPR) is responsible for the
investigation of allegations of misconduct against employees of the FBI. During fiscal year
1998, FBI/OPR had a funded staffing level of 61, including 23 full-time special agents and
38 full-time support employees.
Significant Initiatives in Fiscal Year 1998: OPR published its first semiannual
report to all employees to inform them about disciplinary standards and actions under the
FBI's disciplinary program. The semiannual report used narrative and statistics to describe
the FBI's disciplinary program during fiscal year 1997. One goal of the report was to
educate employees about the FBI's handling of allegations of criminal and other serious
misconduct and the consequences of such behavior. Additionally, FBI management would
know the range of penalties resulting from various types of misconduct. The report also
provided data on the timeliness of OPR inquiries and highlighted important policies and
guidance on employee conduct.
The March 1997 merger of the investigative and adjudicative functions within
FBI/OPR, and assignment of additional resources, allowed FBI/OPR to reduce the time
associated with closing unsubstantiated cases in fiscal year 1998. As soon as the Assistant
Director of OPR determines that an inquiry has clearly demonstrated that an allegation is
without merit, the case is closed administratively, thereby saving the time which would be
required for a separate adjudication review prior to closing. FBI/OPR also established a
second adjudication unit and initiated the hiring of at least four support attorneys to
accelerate the decision process in those cases that must be adjudicated.
During fiscal year 1998, the FBI Director established a policy under which
disciplinary actions are to be based primarily on precedents established in cases decided since
March 1997, when the FBI implemented additional employee protections. These protections
include expanded notification rights, the right to assistance of counsel during interviews and
to access to redacted copies of investigative documents, an opportunity to make an oral
presentation to a senior FBI/OPR official, and establishment of a more independent appeal
process. Although disciplinary actions decided after March 1997 are now considered the
principal controlling precedents, earlier decisions may be consulted when precedents decided
under the new procedural protections are not available, so long as they are consistent with
contemporary disciplinary standards. The procedural protections available to FBI employees
were further expanded in fiscal year 1998 with the Director's adoption of a policy granting
any employee whose dismissal is proposed the opportunity to make an in-person presentation
to the deciding FBI/OPR official. Employees who desire to make an in-person presentation
in lieu of a telephonic presentation may do so at their own expense, and administrative leave
will be granted for the presentation and necessary travel.
FBI/OPR also initiated a project to computerize the OPR precedent database and to
plan for future access to it by executives in FBI field and headquarters divisions. Computer
access by the divisions to FBI/OPR precedents is intended to promote geographical
consistency in cases delegated to Special Agents in Charge for adjudication.
Office of Professional Responsibility
Statistical Summary of FBI/OPR Activities in Fiscal Year 1998: FBI/OPR reported
that in fiscal year 1998 it opened 457 matters involving allegations of serious misconduct
against 517 FBI employees. This number represented a slight increase of 4.5% over the 437
matters opened in the previous year. The office reported a 31% increase in the number of
matters closed, from 402 in fiscal year 1997 to 528 in fiscal year 1998. These 528 cases
involved 615 subject employees. There were 301 matters pending at the close of fiscal year
1998, a 20% reduction from the number pending at the end of fiscal year 1997.
Types of Allegations: The 528 FBI/OPR matters closed during fiscal year 1998
involved a wide variety of allegations. As in previous years, the most common types of
allegations investigated were unauthorized disclosure of information, making false
statements, misuse of position, misuse of government vehicles or other property, and
unprofessional conduct. The last category, which accounted for allegations involving 98 FBI
employees, encompasses many types of alleged misconduct, from complaints of
discrimination to the use of improper management methods.
Disposition of FBI/OPR Matters: Misconduct allegations were substantiated in 311
(59%) of the 528 matters reported closed by FBI/OPR in fiscal year 1998. In seventy-four
(74) matters employees resigned or retired before completion of the investigation or
imposition of discipline. Disciplinary action was imposed on 140 special agents and 161
support employees as a result of FBI/OPR findings.
Examples of Matters Investigated by FBI/OPR in Fiscal Year 1998
1. A support employee was investigated by the U.S. Postal Service after a suspicious
package addressed to him was intercepted by a drug-sniffing dog. The package was found
to contain approximately 23 grams of marijuana. Based on this discovery, the employee
was directed to undergo drug testing, which revealed the presence of marijuana metabolite
in his urine. He also failed a subsequent polygraph examination during which he was
questioned about his personal use of marijuana and his involvement in the sale, purchase and
distribution of illegal drugs during his FBI employment. The employee was dismissed.
2. A special agent made extensive unauthorized purchases on credit cards issued by the
government for undercover investigations and official travel expenses. In addition, the
special agent failed to meet his financial obligations in a timely manner, leading to the
addition of finance and late charges and jeopardizing the covert nature of the undercover
accounts. The special agent also misused his government-assigned vehicle, engaged in
sexual conduct with a former criminal informant while on duty, and violated time and
attendance regulations. The special agent was suspended from duty without pay for 40
calendar days and placed on probation for one year.
3. An FBI/OPR investigation found that a special agent had given false answers to
certain medical questions in his application for employment, and failed to give candid
answers during the subsequent administrative inquiry. The agent was found to have made
material misrepresentations on official documents relating to his qualifications to become
a special agent. The agent was dismissed.
4. A special agent converted to personal use funds which were to be used for
investigative purposes. FBI/OPR also found that the agent lacked candor during the
administrative inquiry in his signed, sworn statement about the handling of the money. The
special agent was dismissed.
5. A criminal investigation was initiated by FBI/OPR into an allegation that a drug
dealer was paying protection money to a special agent. The investigation resulted in the
arrest of the special agent. He was charged with violation of 18 U.S.C. § 201 which prohibits
the solicitation and acceptance of a bribe by a public official. The special agent was
dismissed. He was subsequently indicted and pled guilty to two counts of bribery. He was
sentenced to serve 16 months in prison, to three years supervised probation, and to pay a
6. An FBI/OPR investigation concluded that a special agent had committed time and
attendance fraud; falsified official documents; misused a government vehicle; consumed
alcohol while on duty; committed voucher fraud; was insubordinate toward a supervisor; and
attempted to use government resources improperly. The special agent resigned prior to
receipt of the dismissal letter.
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. The office is headed by a Deputy
Chief Inspector and has a staff of 45, including 32 agents and 13 non-agents. In addition,
DEA/OPR is assisted by two contract employees. The DEA/OPR staff is distributed among
its offices in Los Angeles, Miami, Newark, and DEA Headquarters in Washington.
Significant Initiatives in Fiscal Year 1998: In FY 1998, DEA established a
Suitability Review Protocol (SRP) through which managers and supervisors may obtain
medical evaluations of employees where necessary in order to determine the employee's
continuing suitability to perform as a special agent, diversion investigator, or chemist.
Referral to the SRP may be made when a manager or supervisor receives credible
information that an employee has engaged in violent, threatening or other inappropriate
behavior that may present a suitability issue.
Under the SRP process, a special agent-in-charge or other appropriate manager who
believes an employee needs to be evaluated forwards supporting information to the Chief
Inspector, DEA/OPR. If the Chief Inspector agrees that a suitability evaluation is warranted,
the employee is evaluated by a psychiatrist selected by DEA, and a written report is prepared.
The report of the examining psychiatrist is then reviewed by an agency physician. The
reports of both physicians are then reviewed by the responsible manager, who makes a
determination as to the employee's suitability. Twelve employees were evaluated under the
SRP between the protocol's establishment in February 1998 and the end of the fiscal year
(September 30, 1998).
DEA/OPR also implemented in fiscal year 1998 a practice of notifying each Special
Agent in Charge of DEA/OPR investigations opened in his or her division during the prior
quarter. The report includes the name of the employee against whom the allegation was
made, the code identifying the general nature of the allegation, whether the employee has
been the subject of any DEA/OPR investigation in the past, and any discipline resulting from
a prior investigation.
Statistical Summary of DEA/OPR Activities in Fiscal Year 1998: DEA/OPR
reported that in fiscal year 1998, it opened 229 new professional responsibility investigations
involving DEA employees.(6) This number represents a 16.8% increase over the number of
such investigations opened in fiscal year 1997. DEA/OPR closed 173 matters, and had 168
matters pending at the end of fiscal year 1998.
Types of Allegations: The most common types of allegations investigated by
DEA/OPR were failure to follow instructions, fraud against the government, loss or theft of
a defendant's property or funds, falsification of official reports, and unauthorized disclosure
Disposition of DEA/OPR Matters: Misconduct allegations were substantiated in 77
of the 205 matters closed in fiscal year 1998. As a result of these findings, 54 agents and 31
non-agents were disciplined for misconduct.(7) In addition, 16 subject employees resigned or
retired prior to completion of the investigation or imposition of discipline.(8)
Office of Professional Responsibility
Examples of Matters Investigated by DEA/OPR in Fiscal Year 1998
1. Improper Association with a Confidential Source and Participating in an Improper
Financial Transaction. DEA/OPR investigated a complaint from an individual who formerly
served as a confidential source for the DEA. The former source complained that he had lent
$25,000 to the DEA agent with whom he had worked and that the agent had failed to repay
him. The allegations were substantiated by DEA/OPR's investigation, and the Board of
Professional Conduct charged the DEA agent with conflict of interest. The agent received
a demotion and a 30-day suspension.
2. Misuse of Government American Express Card. DEA/OPR received information that
an employee appeared to be misusing a charge card issued by the agency for expenses
associated with official travel. The monthly activity statements on the account indicated that
the employee had used the card on more than 20 occasions to receive cash advances from
automatic teller machines. The employee initially denied responsibility for the cash
advances, but ultimately acknowledged that he had both misused the charge card and
consumed alcohol during duty hours. The employee was removed from his position.
3. Driving Under the Influence of Alcohol While Off Duty. DEA/OPR opened an
investigation after a DEA agent was arrested by local police for driving under the influence
of alcohol. The police reported that the agent, who appeared to be intoxicated, was
belligerent, uncooperative, disrespectful and used profanity several times. The agent refused
to take a breath test and was arrested. The agent entered a guilty plea to the charge of
operating a vehicle while impaired by liquor and was ordered to serve 24 months probation
and pay a $740 fine. DEA suspended the employee for five days.
4. Assault and Civil Rights Violation/Failure to Report an OPR Matter. The target of
a DEA investigation, who had previously provided information to DEA on a confidential
basis, complained that a DEA agent had kicked him and used a racial slur. The complainant
also alleged that he had previously reported the incident to a DEA supervisor, who took no
action. DEA/OPR initiated an investigation.
When interviewed, the DEA agent who was the subject of the allegations and others
who witnessed the incident in question denied that any assault took place or that any racial
slur was used. The DEA supervisor to whom the complainant claimed to have brought his
allegations told DEA/OPR that the complainant had raised the matter with him only after
making the complaint to DEA/OPR. A review of agency records disclosed that the
complainant's role as a confidential source of information had been judged unsatisfactory
and had been terminated "with prejudice," after he had used racial slurs toward DEA agents,
displayed a belligerent attitude, and refused to take a polygraph test after being accused of
making threats. The DEA agent and the supervisor were issued letters of clearance.
5. Falsification of Official Records. DEA/OPR initiated an investigation into
questionable expenses claimed by a DEA agent on relocation vouchers. Eighty percent of
the claimed expenses were for meals, but in many cases the receipts submitted did not
correspond with items claimed. In other cases, receipts were submitted for several purchases
at the same store on the same day, or receipts indicated that the purchaser had received a
senior discount for which the agent and his family members were not eligible. The agent
also claimed $166.00 per diem although only $80.00 was authorized, and continued to claim
temporary quarters expenses for two weeks after the household goods had been delivered to
the new residence.
Based on DEA/OPR's investigation, the agent was charged with exercising poor
judgment. He was suspended for 30 days and required to correct and resubmit the travel
vouchers with appropriate supporting documentation. Reimbursement was limited to
properly supported expenses.
6. Theft of Government Funds. This investigation was initiated when an employee
admitted taking $6,000 from the imprest fund after learning that an unscheduled audit of the
fund was being conducted. During the investigation, DEA/OPR learned that during previous
audits, the amounts on the final audit forms had been altered to cover up any missing
amounts. The employee was indicted and pled guilty to one count of theft of government
property. Thereafter, the employee was removed from his position.
Overall, during fiscal year 1998 Department attorneys continued to perform their
duties in accordance with the professional standards expected of the nation's principal law
enforcement agency. Statistically, the number of findings of misconduct on the part of
Department attorneys decreased from the previous fiscal year, while the percentage of
misconduct findings decreased marginally. In addition, during the fiscal year the Office
increased its participation in policy and project-oriented activities of the Department.
In previous annual reports we have reported on the increases in staffing at the Offices
of Professional Responsibility at the FBI and DEA, as well as the reorganization of the FBI's
office to combine the investigative and adjudicative functions. The staffing increases have
enabled these offices to address serious allegations of misconduct in a timely fashion.
During fiscal year 1998, both offices experienced increases over the previous year in the
number of complaints received.
1. A portion of the bill was ultimately enacted as part of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999, Pub. L. 105-277, and was codified at 28 U.S.C. § 530B.
2. In our report for fiscal year 1997, we noted that one of the significant changes was the implementation
of the current practice of counting for statistical purposes only matters that become full investigations
handled by OPR attorneys. We noted that this change had the effect of reducing statistically the number of
matters opened. In addition to full investigations, OPR also receives, reviews and conducts inquiries into
numerous other matters involving allegations of misconduct on the part of Department employees.
3. Two of the matters involved two separate findings of professional misconduct on the part of the
attorney involved. One of the matters involved findings of professional misconduct against two attorneys.
In addition, in 15 other matters closed during the fiscal year, the subject attorney was found to have exercised
poor judgment. These latter matters were reported to Department supervisors as performance, rather than
4. For fiscal year 1997, we reported 20 matters involving findings of professional misconduct which
accounted for 16.5% of the matters closed.
5. In order to protect their privacy, all of the individuals 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
6. These figures represent files designated as "PR" or professional responsibility matters. In addition,
DEA/OPR reported that it opened 42 general files in fiscal year 1998. General files are opened when a
preliminary review is necessary to determine if sufficient information exists to warrant a PR investigation.
Of the 42 general files opened in FY 1998, 5 were converted to PR investigations and are reflected in the
number of PR investigations opened for the fiscal year.
7. This figure is higher than the number of allegations substantiated because there were instances in
which more than one employee was disciplined as a result of a PR investigation.
8. Cases in which the subject(s) resigned or retired before completion of the investigation or the
imposition of discipline are not included in the number of allegations substantiated since no final
determinations were made in these cases by DEA's deciding official.