U.S. Department of Justice

Office of Professional Responsibility

Fiscal Year 1999 Annual Report







U.S. Department of Justice

Office of Professional Responsibility

Annual Report for Fiscal Year 1999







Introduction

Jurisdiction and Functions of OPR

Significant Initiatives in FY 1999

Statistical Summary of OPR Activities in FY 1999

Examples of Matters Investigated by OPR in FY 1999

FBI Office of Professional Responsibility

Significant Initiatives in FY 1999

Statistical Summary of FBI/OPR Activities in FY 1999

Examples of Matters Investigated by FBI/OPR in FY 1999

DEA Office of Professional Responsibility

Significant Initiatives in FY 1999

Statistical Summary of DEA/OPR Activities in FY 1999

Examples of Matters Investigated by DEA/OPR in FY 1999

Conclusion


Tables

Table 1. Sources of Misconduct Complaints Received in FY 1999 4

Table 2. Subject Matter of Misconduct Complaints Received in FY 1999 5







Annual Report for Fiscal Year 1999

Introduction

The Office of Professional Responsibility (OPR) 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-fourth annual report to the Attorney General and it covers fiscal year 1999 (October 1, 1998 - September 30, 1999).

Jurisdiction and Functions of OPR

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 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, and 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 summary 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 summary, along with the comments and OPR's recommendation on whether or not the summary should be released, to the Office of the Deputy Attorney General for its consideration. The final determination on whether to disclose publicly the summary of the results of an OPR investigation is made by the Attorney General.

During fiscal year 1999, OPR was 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 monitored 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.

Significant Initiatives in Fiscal Year 1999

During fiscal year 1999, OPR attorneys increased their participation in educational and training activities both within and outside the Department. For example, OPR attorneys participated in training of Department attorneys on compliance with a new legislative provision, 28 U.S.C. 530B, regarding application of state bar ethics rules to Department attorneys. OPR attorneys also made presentations on the work of the Office to the annual conference of Professional Responsibility Officers of the U.S. Department of Justice and to annual conferences of the Criminal Chiefs, Civil Chiefs, and First Assistants of the United States Attorneys' Offices.

During the fiscal year, OPR also increased its level of participation in non-investigative, policy and project-oriented activities of the Department. OPR contributed to the Department's drafting of regulations and internal guidance designed to implement 28 U.S.C. 530B, referenced above, and the establishment of the new Professional Responsibility Advisory Office (PRAO). The PRAO, which began functioning in April 1999, complements OPR's mission by providing definitive advice to Department attorneys on issues relating to professional responsibility.

OPR attorneys also worked to develop a proposed code of conduct for Immigration Judges, members of the Board of Immigration Appeals, and Administrative Law Judges employed by the Executive Office for Immigration Review; participated in a Department-wide review of and response to a series of news articles in the Pittsburgh Post Gazette identifying cases of alleged misconduct by Department attorneys; and participated on a task force to write and implement regulations for the handling of whistleblower complaints made by employees of the FBI.

In July 1999, OPR implemented an enhanced data collection and tracking system which enabled the Office to capture additional useful information regarding investigations as well as the more numerous and sometimes complex matters termed "inquiries" which require legal review and analysis but which do not result in the opening of an investigation. While not functional until the fourth quarter of fiscal year 1999, this enhanced capability allowed OPR to produce reports revealing the sources and types of allegations in such inquiries, and to measure the time required to conclude them.

With the implementation of the enhanced data collection system described above, OPR standardized the types of matters handled by attorney and paraprofessional staff. In increasing order of complexity, OPR records and tracks "correspondence matters," which may involve allegations of misconduct against Department attorneys, but which do not warrant substantive review by OPR attorneys. Such matters, which are handled by experienced program analysts, include complaints raised by criminal defendants or convicted defendants which were previously litigated and decided by the courts or which should be addressed in court pleadings, and complaints that do not fall within OPR's jurisdiction. A supervisory OPR attorney reviews all dispositions of allegations against DOJ attorneys, even if classified as correspondence matters.

Matters involving allegations against DOJ attorneys which require attorney review and analysis but which may not require a full investigation are termed "inquiries." "Investigations" are matters that OPR has determined or anticipates cannot be resolved without a full investigation, including interviews of all relevant witnesses and a review of all the relevant documents, by OPR attorneys.

During fiscal year 1999, OPR also established a procedure for systematically reviewing claims filed under the Hyde Amendment, which permits a prevailing party in a criminal prosecution to seek reimbursement for attorneys' fees on grounds that the position of the United States in the prosecution was "frivolous, vexatious, or in bad faith."

Statistical Summary of OPR Activities in Fiscal Year 1999

Investigations Opened in Fiscal Year 1999. OPR opened a total of 88 investigations in fiscal year 1999. Of these, 85 involved allegations of misconduct on the part of Department attorneys. The 88 investigations opened represented about a 14% increase over the 77 investigations opened in fiscal year 1998. The 88 investigations opened involved 144 separate allegations of misconduct. (1)

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 1999
Source Number of Complaints Percent of Total
Judicial opinions & referrals 53 60%
Private attorneys 14 16%
Department components & employees
(including self-reporting)
11 13%
Private parties 7 8%
Other agencies 2 2%
Other sources 1 1%
Total 88 100%

The subject matter of the 144 allegations contained in the 88 investigations opened by OPR in fiscal year 1999 is set out in table 2, below. (2)

Table 2.

Number of Misconduct Allegations in Investigations Opened by OPR

in Fiscal Year 1999, by Type of Allegation

Type of allegation Number Received in FY-99
Abuse of authority, including abuse of prosecutorial discretion 35
Improper remarks to a grand jury, during trial or in pleadings 23
Misrepresentation to the court and/or opposing counsel 13
Unauthorized disclosure of confidential, including Rule 6(e), information 12
Failure to perform/dereliction of duty 12
Failure to comply with Brady, Giglio or Rule 16 discovery 8
Failure to comply with court orders or federal rules 8
Conflict of interest 7
Failure to comply with DOJ rules and regulations 6
Subornation of perjury/failure to correct false testimony 6
Interference with defendant's rights 3
Lateness (i.e., missed filing dates) 3
Lack of fitness to practice law 3
Other (3) 2
Improper contact with represented party 2
Failure to comply with civil discovery 1
Failure to comply with Congressional discovery requests, including subpoenas 0
Unauthorized practice of law 0
Total 144

Investigations Closed in Fiscal Year 1999. OPR closed a total of 63 investigations in fiscal year 1999, two 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 11, or nearly 18%, of the 61 attorney investigations closed during the fiscal year. (4) The number of investigations resulting in findings of professional misconduct on the part of Department attorneys, and the proportion of OPR's closed investigations in which such findings were made, was nearly unchanged from fiscal year 1998. (5)

Disciplinary action was proposed or taken against 9 of the 11 attorneys found by OPR to have engaged in professional misconduct. The remaining two attorneys resigned from the Department prior to the conclusion of OPR's investigations. Of the nine attorneys against whom disciplinary action was proposed, one received a proposed removal, which was rescinded upon the attorney's retirement; four were suspended without pay for periods between 3 and 14 days (6); two received written reprimands; and two received oral admonishments.

Examples of Matters Investigated by OPR in Fiscal Year 1999 (7)

1.       Misrepresentation to the Court. At a suppression hearing, an agent testified that a named DOJ attorney had approved the application for the search warrant in question. The agent's testimony at the hearing was based on information provided by a second agent, who had actually spoken by telephone with the DOJ attorney prior to the search. The attorney, however, denied having approved the application. Thereafter, the second agent wrote a memorandum to his supervisors suggesting that the attorney did not remember approving the application because the attorney, who was at home at the time, was under the influence of alcohol. The attorney forcefully denied this claim. At a subsequent court hearing, the first agent testified that he had not intended to imply in his previous testimony that the attorney had actually seen the affidavit, only that the attorney had reviewed the facts of the case and authorized the agents to apply for a search warrant. The second agent also testified at the hearing, and stated that he did not in fact believe the attorney was under the influence of alcohol when they discussed the warrant on the telephone.

Based on the results of its investigation, OPR found that the DOJ attorney did not approve the warrant application. The agent who accused the attorney of being intoxicated was referred to the agency's internal affairs office.

2.       Improper Closing Argument. A court found that a DOJ attorney made an improper closing argument by arguing that the defendant had killed a person even though the defendant had not been charged with the murder and the DOJ attorney knew that another person had been convicted of the murder. During OPR's investigation, the DOJ attorney acknowledged that her closing argument was grossly improper, and OPR concluded that the attorney engaged in intentional professional misconduct. The attorney received a three-day suspension.

3.       Unauthorized Disclosure to the Media. OPR received allegations that a DOJ attorney leaked to the press incorrect and damaging information relating to a pending criminal case. In addition, the media reported that members of the trial team were pressuring agents to fabricate or exaggerate witness statements to incriminate the defendants. OPR initiated an investigation and interviewed the attorneys and agents assigned to the case, as well as other knowledgeable sources. OPR concluded that no one on the trial team pressured agents to fabricate or exaggerate witness statements but it was unable to determine the source of the leaks.

4.       Unauthorized Disclosure to the Media. OPR investigated an allegation that a DOJ attorney leaked a sealed document to the press. The attorney admitted releasing the document to the press but stated that she did not know it was under seal. The case was the subject of intense media scrutiny, and at the time the release occurred, the DOJ attorney was working extremely long hours and balancing many competing demands. Based on the results of its investigation, OPR concluded that the DOJ attorney made a mistake in releasing the document to the press but concluded that she did not commit professional misconduct or exercise poor judgment.

5.       Violation of Grand Jury Secrecy; Abuse of Process. A DOJ attorney pursuing a criminal investigation alleged that another DOJ attorney who was working on a civil forfeiture action had engaged in professional misconduct. The complaining attorney contended that the other attorney had disclosed grand jury information in violation of Rule 6(e), Federal Rules of Criminal Procedure, and acted improperly by using grand jury subpoenas to gather evidence for a civil forfeiture case. The complaining attorney also alleged that the civil forfeiture complaint lacked evidentiary support and conflicted with the theory underlying the related criminal investigation. In response, the attorney handling the civil forfeiture matter alleged that the complainant made the allegations of misconduct in retaliation for his prior complaint of sexual harassment.

OPR found that no grand jury information was used or disclosed in the civil forfeiture case. OPR also found that there was a sufficient evidentiary basis for the civil forfeiture action and that the failure to plead an additional count that was consistent with the theory of the criminal case was simply a mistake. OPR concluded that neither DOJ attorney committed professional misconduct but referred the civil attorney's performance issues and allegation of retaliation to the employing component.

6.       Discovery Violation; Shifting Prosecution Theory Mid-Trial. OPR investigated allegations that a DOJ attorney violated her discovery obligations in two unrelated cases. The DOJ attorney acknowledged that in both cases she failed to disclose materials to defense counsel in violation of the Federal Rules of Criminal Procedure but asserted that her failure was not intentional. OPR concluded that in one of the cases the DOJ attorney committed professional misconduct by acting in reckless disregard of her discovery obligations, and the attorney received a letter of reprimand. In the second case, OPR concluded that the DOJ attorney did not commit professional misconduct because the discovery violation resulted from a misunderstanding between the attorney and a law enforcement agent.

OPR also investigated an appellate court finding that the DOJ attorney acted improperly by repeatedly shifting the prosecution theory during the trial and subsequent appeals. OPR concluded that the DOJ attorney did not present different theories to the jury but that she exercised poor judgment by arguing on appeal a theory that was inconsistent with the theory she relied on at trial. OPR referred this finding of poor judgment to the DOJ attorney's employing component for consideration in a management context.

7.       Misrepresentation to the Court. OPR received an allegation that a DOJ attorney made a misrepresentation to the court by stating at a sentencing hearing that he anticipated filing a motion for reduction of sentence because the defendant was cooperating with the government. Later, when the defendant sought to have the government file the motion, the DOJ attorney opposed it and asserted that the defendant had not been truthful.

OPR concluded that the DOJ attorney did not make a misrepresentation to the court because he did not learn until after the sentencing that the defendant had concealed information from the government.

8.       Misuse of Official Position. OPR received allegations from two sources that local law enforcement officials terminated a criminal investigation prematurely when evidence suggested that a relative of a DOJ attorney was involved in criminal conduct. During OPR's investigation, local law enforcement officials involved in the criminal investigation stated that the DOJ attorney did not contact them or attempt to influence their actions in any way. The DOJ attorney informed OPR that she was aware of rumors that her relative was involved in criminal conduct and that she had been careful not to provide assistance to the relative. The DOJ attorney denied contacting other law enforcement officials about her relative's activities.

OPR found that the DOJ attorney did not attempt to influence the criminal investigation. OPR also found that the DOJ attorney informed her supervisors about the situation and that the supervisors took appropriate measures to avoid any potential conflict of interest. OPR concluded that there was no evidence that the DOJ attorney engaged in professional misconduct or exercised poor judgment.

9.       Failure to Comply with Court Order. An appellate court issued an order to show cause why a DOJ attorney should not be subject to disciplinary action for failing to comply with the court's order to amend the government's brief to comport with appellate rules. The DOJ attorney filed a statement with the court explaining that he had misunderstood the court's order, that he had tried to seek clarification of the order, and that he erroneously concluded that he needed to do nothing further because he had earlier filed an amended brief which he mistakenly thought the court had not seen when it issued its order directing him to amend the government's brief. The DOJ attorney acknowledged in his response to the show cause order that, in retrospect, he should have realized that the court had directed him to file a second amended brief.

OPR conducted an investigation and reviewed the court's communications and the DOJ attorney's responses. OPR concluded that the court had clearly ordered the DOJ attorney to submit a second amended brief and that the DOJ attorney engaged in professional misconduct by recklessly disregarding his obligation to comply with the court's order. The DOJ attorney received a letter of reprimand.

10.       Abuse of the Grand Jury; Improper Statements to the Media. A defense attorney alleged that a DOJ attorney violated state bar rules by making a statement to the media that contained her opinion about the defendant's guilt. Defense counsel also claimed that DOJ attorneys committed misconduct by compelling the defendant to testify before a grand jury when he was a target of the investigation.

OPR concluded that no DOJ attorney engaged in professional misconduct. OPR found that the statement made by the DOJ attorney at a press conference announcing the indictment did not include an opinion as to the defendant's guilt, and that a press release, made available at the same press conference, stated that an indictment is merely a charge and that a defendant is presumed innocent until proven guilty. OPR also found that the defendant had been granted immunity for his grand jury testimony, that his appearance before the grand jury had been negotiated with defense counsel rather than compelled, and that the defendant was not a target of the grand jury before which he appeared.

11.       Improper Opening Statement and Closing Argument. An appellate court ruled that a DOJ attorney made statements in her opening statement and closing argument that were not supported by the evidence. The defendant had been arrested at an airport with four bags, one of which contained heroin. The defendant initially admitted that the bags were his but later claimed that the bag containing the heroin had been given to him to deliver to a friend. The DOJ attorney argued at trial that the defendant knew about the heroin because a suit found in the bag containing the heroin fit the defendant. Unbeknownst to the DOJ attorney, the law enforcement agents who inventoried the bags had commingled the clothing found in the bags and had redistributed it randomly among the bags.

OPR conducted an investigation and found that the DOJ attorney was not told of the commingling and did not know at the time of trial that the clothing had been commingled and redistributed. The DOJ attorney had communications prior to trial with the law enforcement agents but was not told of the commingling even though prior to trial the DOJ attorney had the defendant try on the clothing that was in the bag containing the heroin. In view of these facts, OPR concluded that there was no evidence that the DOJ attorney should have known about the commingling. OPR therefore concluded that the DOJ attorney did not commit professional misconduct.

12.       Misrepresentation to the Court. A bankruptcy court found that a DOJ attorney acted unethically by failing to disclose to the court and the debtor's counsel that she had sent a letter to a government agency asking it to place a hold on any funds being paid to the debtor corporation. In the case before the bankruptcy court, the debtor corporation owed the government over $3 million. During the bankruptcy, the DOJ attorney learned that the debtor corporation might be performing services for the government and receiving payments from an agency other than the one to which it owed the $3 million. The DOJ attorney wrote a letter to the second agency asking that it investigate the matter and hold any funds being paid to the debtor. The debtor complained to the bankruptcy court about the hold placed on the funds, and the court decided that the DOJ attorney should have told the court and the other parties about her request.

OPR found that the bankruptcy court's finding was based on incorrect assumptions about the DOJ attorney's knowledge at the time she sent the letter to the second agency. The DOJ attorney did not know whether any funds were being paid to the debtor, and the DOJ attorney had only limited involvement in the bankruptcy proceedings because she represented only the agency that was owed the $3 million. OPR found that the DOJ attorney's letter to the second agency was appropriate and in accordance with the government's interpretation of its right of setoff under existing law. However, OPR concluded that the letter had a potentially negative effect on the debtor and another major creditor, and that notice should therefore have been given. OPR concluded that, because of her role in the proceeding, the DOJ attorney did not appreciate the potential effect her letter would have on other parties, and thus did not engage in professional misconduct. The bankruptcy court, after receiving additional information about the matter, vacated its finding of misconduct.

13.       Misuse of Official Position. OPR investigated an allegation that a DOJ attorney misused his position in an attempt to expedite his spouse's naturalization. The DOJ attorney contacted DOJ employees involved in processing the naturalization application, corresponded with the processing center using official DOJ letterhead, and obtained the DOJ administrative immigration file on his spouse to get information needed to complete the application form.

OPR concluded that the DOJ attorney did not commit professional misconduct by intentionally seeking to use his official position to influence or expedite the naturalization process. OPR concluded, however, that the DOJ attorney exercised poor judgment by using DOJ letterhead to correspond with the processing center and by obtaining the immigration file on his spouse. OPR referred this finding of poor judgment to the DOJ attorney's employing component for consideration in a management context.

14.       Violation of Petite Policy; Subornation of Perjury. Defense counsel alleged that DOJ attorneys violated DOJ's Petite policy by failing to obtain DOJ approval before prosecuting the defendant for the same acts that had given rise to a prosecution and acquittal in state court. Defense counsel also alleged that the DOJ attorneys presented testimony from a local police officer that the DOJ attorneys knew or should have known was false.

OPR conducted an investigation and concluded that the DOJ attorneys did not commit professional misconduct. The DOJ attorneys failed to obtain a Petite waiver prior to the indictment, but the oversight was cured when the DOJ attorneys obtained a waiver nunc pro tunc. OPR also found that the DOJ attorneys had taken reasonable steps to establish that the local police officer's testimony was truthful.

15.       Improper Closing Argument. An appellate court ruled that a DOJ attorney made an improper closing argument by mischaracterizing a witness's testimony in a way that assumed a fact not in evidence. The court noted that the witness's testimony was unclear because the DOJ attorney had asked the witness a compound question, leaving it uncertain which part of the question the witness answered in the affirmative.

OPR conducted an investigation and found that the trial court had ruled that the disputed fact was in evidence and that defense counsel did not object to the questioning of the witness or the closing argument. OPR concluded that the DOJ attorney made a mistake by posing a compound question but did not engage in professional misconduct or exercise poor judgment.

16.       Misrepresentation to Defense Counsel. A trial court criticized a DOJ attorney for "ambushing" the defense by not advising them earlier of the government's intention to call a witness who created a conflict of interest for defense counsel. OPR conducted an investigation and found that the DOJ attorney informed defense counsel about the witness as soon as that witness agreed to cooperate with the government. OPR also found that the DOJ attorney never indicated to the defense that the witness would not be called to testify. OPR concluded that the DOJ attorney acted appropriately under the circumstances.

17.       Improper Examination of a Witness. An appellate court criticized a DOJ attorney for cross-examining a defendant on the facts of his prior conviction for a violent felony. The DOJ attorney asserted that the defendant "opened the door" to the cross-examination by attempting to minimize his guilt. OPR found that the defendant did not "open the door" to cross-examination on the facts of his prior conviction. Based on the results of its investigation, OPR concluded that the DOJ attorney exercised poor judgment in his questioning of the defendant. OPR referred this finding of poor judgment to the DOJ attorney's employing component for consideration in a management context. The DOJ attorney received an admonishment.

18.       Misconduct Before the Grand Jury. OPR investigated allegations that a DOJ attorney subpoenaed the subject of a grand jury investigation but failed to provide him with an advice of rights form in violation of DOJ policy. OPR also investigated allegations that the DOJ attorney offered her personal opinions to the grand jury. OPR found that the standard practice at the attorney's office was to provide advice of rights forms only to targets, not subjects. Nonetheless, OPR concluded that the attorney exercised poor judgment because she knew DOJ policy and did not follow it. OPR also concluded that the DOJ attorney committed professional misconduct by acting in reckless disregard of her obligation to refrain from giving her personal opinion to the grand jury. The DOJ attorney received an admonishment. The attorney's office provided assurances that in the future it would comply with DOJ policies requiring attorneys to send an advice of rights form along with a subpoena to subjects of grand jury investigations.

19.       Failure to Comply with Court Order. A judge sanctioned a DOJ attorney for (1) failing to timely file requested jury instructions as required by court order; (2) failing to timely respond to plaintiffs' motion in limine; and (3) violating the court's order to avoid referring to certain contested evidence. The court's sanction consisted of a public reprimand of the DOJ attorney. OPR found that the attorney showed poor judgment for failing to meet the deadlines with respect to submission of the proposed jury instructions and filing of the government's response to the motion in limine, and further, for failing to ask the judge for clarification of the court's expectations following discussion of those issues during pretrial conferences. However, based on OPR's review of the transcript and information provided by the DOJ attorney, OPR found that the attorney did not violate the judge's order barring any reference to certain contested evidence. OPR referred the finding of poor judgment to the DOJ attorney's employing component for consideration in a management context.

20.       Improper Contact Between Prosecutor and Court Clerk. An appellate court ruled that a DOJ attorney created an appearance that the trial court had participated in plea discussions in violation of Rule 11 of the Federal Rules of Criminal Procedure when the DOJ attorney informed a courtroom clerk of the terms of a plea offer she planned to extend to the defendant.

OPR found that the attorney disclosed the terms of the plea offer in response to a specific request from the clerk for that information. OPR found that the DOJ attorney did not intend to involve the district court in the parties' plea negotiations and thus did not commit intentional misconduct. OPR also found that the DOJ attorney did not recklessly disregard her professional obligations to comply with Rule 11 and did not coerce the defendant into accepting a plea agreement. OPR therefore concluded that the DOJ attorney's conduct did not constitute professional misconduct. However, OPR concluded that the attorney exercised poor judgment by acceding to the clerk's request. OPR referred this finding of poor judgment to the DOJ attorney's employing component for consideration in a management context.

21.       Prejudicial Statement by Prosecutor. OPR investigated an allegation that a DOJ attorney prejudiced the defendant by filing prior to trial an unsealed submission containing unfavorable information about the defendant. OPR found that the submission was filed in response to a defense request under Federal Rule of Evidence 404(b) for any evidence that the defendant had committed uncharged crimes or other bad acts. OPR concluded that the DOJ attorney had a duty to respond to the Rule 404(b) request and that he did not commit professional misconduct by doing so on the public record.

22.       Misrepresentation to the Court. A DOJ component informed OPR about a situation in which a DOJ attorney may have misrepresented facts in an ex parte motion for emergency relief. OPR conducted an investigation and found that sufficient facts supported the representation and that the DOJ attorney did not commit professional misconduct by acting in reckless disregard of the truth or with an intent to deceive the court.

23.       Breach of Plea Agreement. A law enforcement agent alleged that a DOJ attorney breached a plea agreement in which the government had agreed not to seek an enhancement under the Sentencing Guidelines for obstruction of justice. The DOJ attorney allegedly provided information to the probation officer concerning the defendant's obstructive conduct, and the presentence report prepared by the probation officer included a recommendation for an obstruction of justice enhancement.

OPR conducted an investigation and concluded that the DOJ attorney did not commit professional misconduct or exercise poor judgment. OPR found that the DOJ attorney had a duty to respond truthfully to questions asked by the probation officer and that providing pertinent information to the sentencing court did not violate the plea agreement.

24.       Misuse of Subpoenas. An appellate court ruled that DOJ attorneys in two cases violated Rule 17 of the Federal Rules of Criminal Procedure by using subpoenas to compel witnesses to attend ex parte pre-trial interviews. The appellate court requested OPR to investigate the subpoena practice of the DOJ component where the attorneys worked.

OPR found that the use of subpoenas to compel pre-trial interviews was improper but that the practice had originated with a senior support employee and was routinely carried out by support employees in the office involved. The attorneys assigned to prosecute the cases in which improper subpoenas were issued either failed to question the practice or were unaware that it was improper. In addition, the component involved took immediate steps to halt the practice and gave prompt notification to the courts and defense counsel in cases where subpoenas had been issued for ex parte pre-trial interviews. OPR concluded that the DOJ attorneys involved had not committed professional misconduct and that no further action was necessary.

25.       Failure to Disclose Brady Material. A trial court ruled that two DOJ attorneys violated their Brady obligations by failing to discover and produce certain scientific documents that could have supported the defense theory. OPR found that the DOJ attorneys acted appropriately. OPR noted that the defense's failure to abide by discovery rules requiring disclosure of its scientific theories made it impossible for the government to predict what information might be relevant to a defense theory. Thus, OPR concluded that the attorneys did not have a duty to spend hundreds of hours searching for data that even the defense did not consider relevant and that it was doubtful that the data was material to the prosecution. An appellate court subsequently reversed the trial court's finding of a Brady violation.

26.       Violation of Grand Jury Secrecy. A DOJ component referred to OPR an allegation that a DOJ attorney violated Rule 6(e) of the Federal Rules of Criminal Procedure by disclosing to private sector experts documents generated by the grand jury investigation and the names of grand jury targets. The DOJ attorney sought input from the experts to assure herself that the charges contemplated were warranted. She had intended to present testimony from one of the experts at a pre-trial detention hearing, and she included the experts on the "6(e) list" he filed with the court.

OPR concluded that the DOJ attorney exercised poor judgment in disclosing grand jury documents and the names of grand jury targets to the private experts. OPR noted that some case law supported the proposition that retained, private experts are "government personnel" to whom grand jury information can be provided under Rule 6(e)(3)(ii). OPR concluded, however, that the DOJ attorney should have consulted her supervisors before embarking on such a problematic course.

Operations of Federal Bureau of Investigation OPR

and Drug Enforcement Administration OPR

As noted in the preceding section, during fiscal year 1999 OPR assisted and oversaw 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 1999.

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 1999, FBI/OPR had a funded staffing level of 69, including 28 full-time special agents and 41 full-time support employees.

Significant Initiatives in Fiscal Year 1999: The curriculum at the FBI Academy includes 16 hours of ethics and anti-corruption instruction for individuals training to be Special Agents. FBI/OPR began reviewing the curriculum to ensure that it prepares trainees to identify and address ethical issues facing FBI Special Agents. One objective of the new review process is to integrate ethical considerations that have surfaced in matters handled by FBI/OPR into the practical investigative exercises which the FBI Academy uses to instruct Special Agent trainees.

FBI/OPR established and continues to maintain a liaison with other federal agencies to foster the exchange of information concerning ethics training, as well as disciplinary policy and procedures. FBI/OPR also provided training to other domestic and foreign law enforcement organizations, including annual ethics training for law enforcement officers at the International Law Enforcement Academy in Budapest, Hungary.

FBI/OPR is collaborating with behavioral scientists from the FBI Academy in a study to identify precursory behavioral, ethical, organizational, and personal characteristics that contributed to the criminal behavior and serious misconduct which resulted in the dismissal or voluntary resignation of FBI employees over an 11-year period.

Statistical Summary of FBI/OPR Activities in Fiscal Year 1999: FBI/OPR reported that in fiscal year 1999 it opened 578 matters involving allegations of serious misconduct against 576 identified FBI employees. This number represented a 26% increase over the 457 matters opened in fiscal year 1998. The office reported a 7% decrease in the number of matters closed, from 528 in fiscal year 1998 to 491 in fiscal year 1999. These 491 cases involved 530 identified subject employees and 44 unidentified subjects. There were 339 matters pending at the close of fiscal year 1999, a 12% increase from the number pending at the end of fiscal year 1998.

Types of Allegations: The 491 cases closed during fiscal year 1999 involved a variety of allegations. Consistent with prior years, the most common types of substantiated allegations were unauthorized disclosure of information, misuse of FBI vehicle or other government property, investigative dereliction, making false statements, and unprofessional conduct.

Disposition of FBI/OPR Matters: Misconduct allegations were substantiated in 347 (71%) of the 491 matters closed by FBI/OPR in fiscal year 1999. Disciplinary action was imposed on 181 Special Agents and 131 support employees as a result of FBI/OPR findings. Forty-nine employees resigned or retired before completion of the investigation or imposition of discipline.

Examples of Matters Investigated by FBI/OPR in Fiscal Year 1999 (8)

1.       A support employee stole a co-worker's credit card and charged large purchases to the co-worker's account. The employee was indicted for committing credit card fraud, in violation of 18 U.S.C. 1029(a)(1), and was convicted. The employee was dismissed.

2.       A support employee, acting without authorization, confirmed the vehicle license plate number of an individual who was under FBI surveillance. Upon discovering that the license plate number belonged to a relative of a family friend, the employee disclosed to the relative's son that the FBI was investigating the relative. The employee was dismissed for disclosing sensitive investigative information.

3.       A Special Agent was arrested for possession of narcotics and drug paraphernalia. At the time of arrest, FBI/OPR had a pending inquiry involving allegations that the Agent had driven under the influence of alcohol. These allegations were based on information that the Agent had failed field sobriety tests, registered a blood alcohol level that was twice the legal limit, and had been verbally abusive to police officers. In addition, the Special Agent failed to report to the FBI that he was living with an individual with a history of illegal drug use who the Agent suspected was continuing to use illegal drugs. The Agent also did not report that police officers had responded to a call concerning a domestic disturbance in which the Agent was involved. The Agent falsified official time and attendance records. Finally, during a judicial hearing on a civil matter, the Agent created an appearance of impropriety by referring to the fact that he was employed by the FBI in such a way as to suggest that he was soliciting a favorable finding from the court based on his employment. The Special Agent was dismissed.

4.       A probationary Special Agent harassed a former friend and engaged in insubordination by continuing to harass the individual after FBI supervisors ordered the agent to stop doing so. In addition, the Agent failed to report contact with law enforcement officers, misused an FBI vehicle, transported an unauthorized passenger in an FBI vehicle, made an unauthorized disclosure of FBI information, misused FBI telephones, falsified an FBI employment application, and lied under oath during the FBI/OPR inquiry. The probationary Special Agent was dismissed.

5.       A Special Agent violated FBI regulations by investigating a complaint and accessing FBI databases without the approval of an FBI Supervisor. The Agent's actions were aggravated by the fact that the complaint involved a personal acquaintance. In addition, the Agent was untruthful when questioned about the conduct by the field office's Associate Division Counsel and then lied under oath and concealed information during the FBI/OPR inquiry. The Special Agent was dismissed.

6.       A Special Agent engaged in unauthorized outside employment by establishing a commercial business with a friend. The Agent visited the business while on duty and falsified time and attendance records to reflect that she was performing official FBI duties while she actually was engaged in activities related to the business. The Agent misused an FBI vehicle by making unauthorized trips to the business in the vehicle and by transporting unauthorized individuals. The Agent was suspended without pay for 60 calendar days and placed on probation for one year.

Drug Enforcement Administration

Office of Professional Responsibility

The Drug Enforcement Administration's Office of Professional Responsibility (DEA/OPR), a component of DEA's Inspection Division, is responsible for investigating misconduct allegations against employees of the DEA. The Office is headed by a Deputy Chief Inspector and in fiscal year 1999 had a staff of 45 employees, including 32 agents, 15 non-agents, and two contract employees. The DEA/OPR staff is distributed among its offices in Los Angeles, Miami, Newark, and DEA Headquarters in Washington, D.C.

Significant Initiatives in Fiscal Year 1999: In fiscal year 1999, DEA/OPR conducted an evaluation of its investigative process steps and standard procedures. Based on the results of this evaluation, DEA/OPR implemented enhancements and modifications with the objective of significantly reducing the time it takes to complete cases without compromising the thoroughness or integrity of its investigations.

One of the enhancements implemented by DEA/OPR was to assign a Program Analyst to each investigation to provide specialized investigative support functions. These functions include providing information about policies and procedures utilized by other DEA offices and programs, and conducting database inquiries, personnel and security file reviews, record and data collection, research and data analysis. In the case of delegated investigations, the Program Analyst also reviews the investigative file to ensure that its format and content comply with DEA/OPR standards and then prepares a draft report of investigation summarizing the evidence obtained during the investigation. As a result of the assistance from the Program Analysts, the Inspectors receive extensive analytical support and greater access to data resources. In addition, their assistance helps ensure that investigations are conducted in accordance with DEA/OPR's established standards of investigation.

DEA/OPR also coordinated with DEA's Office of Information Systems to expand the availability of investigative information within DEA/OPR while maintaining the security features of the previous system. The two Offices are working to accomplish this goal by formalizing DEA/OPR's computer network (OPRN) so that OPRN will perform some of the functions of DEA's Firebird-based automated case management system, which is used throughout DEA, while maintaining the security features of OPRN, which may only be accessed by DEA/OPR employees. These functions include the integration of investigative documents and storage of documents in an electronic file room. In the meantime, OPRN has been enhanced in the following ways: 1) with software applications that are fully supported, maintained, and updated by DEA's Firebird enterprise staff in order to ensure reliable and consistent operations; 2) with a file structure that permits reports to be accessed by and shared between different investigative teams and cases; and 3) with the emerging capability to extend access to DEA/OPR's central server to the three field offices.

In conjunction with the OPRN developments discussed above, DEA/OPR enhanced two automated tools in order to manage more efficiently OPR investigative activity, provide accurate and timely reporting of program activity, and streamline the preparation of reports and recording of case status updates. First, DEA/OPR upgraded its Case Management System in order to enable managers to assign cases, track their progress, and monitor deadlines more efficiently. The software also contains additional tracking fields which enable DEA/OPR to provide thorough, comprehensive, statistical information to DEA and Department managers more quickly. Second, the Office revised its automated Investigative Report document in order to improve the organization and standardization of information that is included in each report of investigation. The revised document automatically shares data with other documents and thus eliminates the step of inputting duplicate information while preparing other reports for the case file.

Statistical Summary of DEA/OPR Activities in Fiscal Year 1999: DEA/OPR reported that in fiscal year 1999, it opened 252 new professional responsibility investigations involving DEA employees. (9) This number represents a 10% increase over the number of such investigations opened in fiscal year 1998. DEA/OPR closed 187 matters (8% more than in fiscal year 1998) and had 310 matters pending at the end of fiscal year 1999.

Types of Allegations: The most common type of allegations investigated by DEA/OPR were conduct unbecoming, demonstrating poor judgment, failing to follow instructions, an arrest, failing to report OPR matters, inattention to duty, alcohol-related incidents, and loss or theft of a defendant's property or funds.

Disposition of DEA/OPR Matters: Misconduct allegations were substantiated in 72 of the 187 matters closed in fiscal year 1999, for a substantiation rate of 38%. As a result of these findings, 67 agents and 23 non-agents were disciplined for misconduct. (10) In addition, 14 subject employees resigned or retired prior to completion of the investigation or imposition of discipline. (11)

Examples of Matters Investigated by DEA/OPR in Fiscal Year 1999 (12)

1.       The FBI and DEA/OPR initiated an investigation into alleged kickbacks from private vendors who were providing equipment and services to a DEA office. The investigation revealed a lengthy criminal conspiracy to commit theft, fraud, embezzlement, and laundering of over $3 million of government funds. As part of their investigation, the FBI and DEA/OPR seized approximately 30 computers, examined over one million records, and identified over 30 DEA employees, including senior managers, supervisors, and technicians, who were involved in the conspiracy. The investigation, which is the most significant computer forensic case in DEA's history, resulted in the seizure of over $750,000 of property and assets, court-ordered restitution totaling approximately $3 million, and ten convictions. In addition, administrative action was taken against 25 DEA employees. Six of these employees were terminated or resigned, six were suspended without pay, and the remaining 13 received lesser discipline.

2.       DEA/OPR received a complaint from an Assistant Special Agent in Charge (ASAC) that a Cooperating Defendant involved in a pending investigation had alleged that a Special Agent purchased a television from the Cooperating Defendant and still owed him a portion of the purchase price. DEA/OPR discovered evidence that the Special Agent violated DEA policy by driving the Cooperating Defendant in an official government vehicle to the Cooperating Defendant's home without being escorted by another agent and told the Cooperating Defendant that he should remove his property from the home so that it would not be subject to seizure and possible forfeiture. The Special Agent admitted to DEA/OPR that she purchased the television and also accepted two wall hangings from the Cooperating Defendant. The Special Agent was discharged.

3.       DEA/OPR received allegations that a Supervisory Special Agent (SSA) had falsely represented in affidavits that the SSA was a state trooper before becoming a DEA agent. Upon initiating an investigation, DEA/OPR Inspectors found discrepancies in information provided by the SSA on his application for federal employment and subsequently determined that the SSA was a police officer, but not a state trooper, before joining DEA. They also found that the SSA had falsely represented on 12 occasions in federal affidavits, testimony, and depositions that he had been employed as a state trooper. The SSA was discharged and the Merit System Protection Board upheld the agency's decision to remove the SSA from federal service.

4.       A DEA employee submitted a resignation letter alleging that he was resigning because a Special Agent had threatened him. An audio tape from the employee's telephone answering machine contained ten messages from the Special Agent threatening the employee. DEA/OPR referred the Special Agent for a Fitness for Duty Examination under DEA Suitability Review Protocol. During its investigation, DEA/OPR discovered that the Special Agent had sold DEA equipment for personal gain, removed other equipment from a DEA warehouse without completing a Receipt for Property form, sexually harassed another DEA employee, and made false statements to DEA/OPR during the investigation. The Special Agent was discharged.

5.       DEA/OPR received allegations that two defendants had engaged in sexual intercourse while in the custody of a DEA Special Agent. DEA/OPR's investigation revealed that the two defendants were taken to a DEA office for a debriefing session attended by a federal prosecutor, the defendants' attorneys, and two DEA Special Agents. After the debriefing was concluded, the two defendants were left unattended in the interview room for approximately 15 minutes, during which time they engaged in sexual intercourse. The Special Agent told DEA/OPR that he was unaware of the defendants' sexual activity and that he had not suggested to the defendants that the meeting was an opportunity to engage in sexual activity. After the defendants corroborated the Special Agent's representations, the Special Agent was issued a letter of clearance.

6.       The Office of Inspector General of a federal agency requested DEA/OPR's assistance in investigating unauthorized disclosures of information from DEA's subject tracking database, the Narcotics and Dangerous Drugs Information System (NADDIS), that had compromised the identity of a confidential informant. Inspectors found evidence that a DEA Special Agent had disclosed NADDIS information to a private investigator, a retired FBI Special Agent, who was running a criminal check on behalf of a client. The DEA Special Agent admitted that she had disclosed the information and was issued a letter of reprimand.

Conclusion

During fiscal year 1999, Department attorneys continued to perform their duties in accordance with the professional standards expected of the nation's principal law enforcement agency. In response to a significant increase in the number and complexity of ethical standards applicable to Department attorneys, OPR has increased its participation with other components in Department-wide initiatives, including the implementation of 28 U.S.C. 530B and the Hyde Amendment; writing and implementing regulations for the handling of whistleblower complaints made by employees of the FBI; and proposing an ethics manual for the guidance of Immigration Judges, members of the Board of Immigration Appeals, and Administrative Law Judges employed by the Executive Office for Immigration Review. OPR's participation in these efforts as well as in training and education activities have increased awareness of ethical standards and responsibilities throughout the Department of Justice, and have helped the Department to meet the challenge of enforcing the law and defending the interests of the United States in an increasingly complex environment.


 

1. The number of allegations made exceeded the number of investigations opened because a single investigation may involve multiple allegations of misconduct. Return...  

2. In this report, allegations are presented in more specific categories than in past annual reports. Return...  

3. The allegations categorized as "other" included an alleged misrepresentation to the Department regarding the status of a plea agreement entered into with a target of an investigation, and an alleged violation of a specific written undertaking regarding the confidentiality of certain documents produced in response to a Civil Investigative Demand. Return...  

4. In addition to the 11 investigations in which OPR found professional misconduct, there were 10 cases (16% of closed investigations involving attorneys) in which subject attorneys were found to have exercised poor judgment. These poor judgment findings were reported to Department supervisors as performance, rather than misconduct, issues. Return...  

5. In fiscal year 1998, OPR found professional misconduct in 12 investigations, representing 15% of the 80 investigations completed that year involving attorney subjects. Return...  

6. The attorney whose conduct was found to warrant a 14-day suspension later resigned from the Department after disciplinary action brought by state bar authorities resulted in a one-year suspension of his license to practice law. Return...  

7. In order to protect the privacy of the Department attorneys and other individuals involved in the OPR investigations summarized, OPR has omitted names and identifying details from these examples. In addition, OPR has alternated use of male and female pronouns in these examples regardless of the gender of the individual involved. Return...  

8. In order to protect the privacy of the Department employees and other individuals involved in the investigations summarized, OPR has omitted names and identifying details from these examples. In addition, OPR has alternated use of male and female pronouns in these examples regardless of the gender of the individual involved. Return...  

9. These figures represent files designated as "PR" or professional responsibility matters. In addition, DEA/OPR reported that it opened 71 general files in fiscal year 1999. General files are opened when a preliminary review is necessary to determine if sufficient information warrants a PR investigation. Of the 71 general files opened in fiscal year 1999, eight were converted to PR investigations and are reflected in the number of PR investigations opened for the fiscal year. Return...  

10. 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. Return...  

11. Cases in which 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. Return...  

12. In order to protect the privacy of the Department employees and other individuals involved in the investigations summarized, OPR has omitted names and identifying details from these examples. In addition, OPR has alternated use of male and female pronouns in these examples regardless of the gender of the individuals involved. Return...

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