Office of Professional Responsibility

Fiscal Year 1998 Annual Report








Office of Professional Responsibility

Annual Report for Fiscal Year 1998







Introduction

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

Conclusion


Tables
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

Introduction

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 General.

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 immigration-related proceedings.

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 1997.

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.

Table 1.
Sources of Misconduct Complaints Received in FY 1998
Source Number of Complaints Percent of Total
Department components & employees

(including self-reporting)

29 38%
Judicial opinions & referrals 28 36%
Private attorneys 10 13%
Private parties 5 6.5%
Other agencies 5 6.5%
Total 77 100%

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.


(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.

Table 2.
Subject Matter of Misconduct Allegations Received in FY 1998
Alleged Misconduct
No. of

Allegations

Percent

of Total

Abuse of prosecutorial or investigative authority 30 28%
Misrepresentation to the court or opposing counsel 17 16%
Failure to perform duties properly, negligence 16 15%
Unauthorized release of information (including grand jury information) 12 11%
Failure to disclose exculpatory, impeachment or discovery material 10 9%
Improper oral or written remarks to the court or grand jury 5 5%
Criminality 5 5%
Unprofessional behavior 4 4%
Failure to comply with DOJ rules and regulations 4 4%
Conflicts of interest 3 3%
Total 106 100%

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.

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 Bar.

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 information.

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 performance issue.

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 sentencing "reprehensible."

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 1998.

Federal Bureau of Investigation
Office of Professional Responsibility

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.

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 $3,000 fine.

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
Office of Professional Responsibility

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 of information.

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)

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.

Conclusion

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 misconduct, issues.

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 their gender.

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.