Office of Professional Responsibility
Fiscal Year 1997 Annual Report
Office of Professional Responsibility Annual Report for Fiscal Year 1997
Jurisdiction and Functions of OPR
Statistical Summary of OPR Activities in FY 1997
Examples of Matters Handled by OPR in Fiscal Year 1997
FBI Office of Professional Responsibility
Significant Initiatives in FY 1997
Statistical Summary of FBI/OPR Activities in FY 1997
Examples of Matters Handled by FBI/OPR in FY 1997
DEA Office of Professional Responsibility
Significant Initiatives in FY 1997
Statistical Summary of DEA/OPR Activities in FY 1997
Examples of Matters Investigated by DEA/OPR in FY 1997
Table 2. Subject Matter of Misconduct Complaints Received in FY 1997 3
Annual Report for Fiscal Year 1997
In an order dated December 9, 1975, the Attorney General created the Office of Professional Responsibility for the purpose of ensuring that "Departmental employees continue to perform their duties in accord with the professional standards expected of the Nation's principal law enforcement agency." This report is submitted pursuant to 28 C.F.R. §0.39a(i)(3), which requires the head of the Office, the Counsel on Professional Responsibility, to submit an annual report reviewing and evaluating the internal inspections units in the components of the Department. This is the Office's twenty-second annual report and it covers the 1997 fiscal year (October 1, 1996 - September 30, 1997).
Jurisdiction and Functions
The jurisdiction of the Office of Professional Responsibility (OPR) extends to the investigation of allegations of professional misconduct by Department of Justice attorneys that relate to the exercise of their authority to investigate, litigate or provide legal advice. The Office's jurisdiction also encompasses the investigation of 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 who are responsible for taking any disciplinary action that may be appropriate. In matters where disciplinary action for professional misconduct against a Department attorney appears warranted, OPR includes a recommended range of discipline in its report. Although OPR's recommendation is not binding on the management official responsible for imposing discipline on the subject attorney, 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 of discipline.
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 are responsible for investigating 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 inspection 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.
In accordance with a policy adopted in 1993, OPR is also responsible for preparing summarized reports of certain OPR investigations for public release. 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. Three final public summary reports were issued pursuant to the disclosure policy during fiscal year 1997.
During the fiscal year, OPR continued to implement various policies of the Attorney General and the Deputy Attorney General designed to improve the OPR process, as well as the overall integrity program in the Department. These activities included (1) conducting expedited investigations of judicial findings of attorney misconduct or judicial criticism, (2) completing misconduct investigations despite the resignation or retirement of the Department attorney who was the subject of allegations, and (3) cooperating with state bar licensing authorities in matters of mutual interest. OPR attorneys also continued to participate in educational and training activities and to assist Civil Division attorneys representing the Department in appeals filed by subject attorneys who are contesting disciplinary actions before the Merit System Protection Board.
The statistical data for fiscal year 1997 show the effects of jurisdictional, policy, and case-reporting changes that were described in detail in the Annual Report for Fiscal Year 1996. One of the significant changes was the current practice of counting for statistical purposes only matters that become full investigations handled by OPR attorneys. This change has had the consequence of reducing the number of matters opened. Thus, the statistical data for 1997 show a decrease in the number of matters opened from the 1996 fiscal year. The data also reflect an increase in the number of findings of professional misconduct from the previous fiscal year.
Statistical Summary of OPR Activities in Fiscal Year 1997
Matters Opened in Fiscal Year 1997. OPR opened a total of 98 matters in fiscal year 1997, all involving allegations of misconduct on the part of Department attorneys. The 98 matters opened represented a 19% decrease from the 121 matters opened in fiscal year 1996. As noted, the decrease was attributable to modifications in OPR's case-reporting methodology.
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.(1)
Sources of Misconduct Complaints Received in FY 1997
The subject matter of misconduct complaints received by OPR in fiscal year 1997 is set out in table 2, below.
||Number of Complaints
||Percent of Total
|Department components & employees
|Judicial opinions & referrals
Subject Matter of Misconduct Complaints Received in FY 1997
Matters Closed in Fiscal Year 1997. OPR closed a total of 124 matters in fiscal year 1997, three of which involved allegations of misconduct against non-attorney personnel. OPR found that Department attorneys had engaged in professional misconduct in 20, or about 16.5%, of the 121 attorney matters closed during the fiscal year.(2) The 20 matters involving findings of professional misconduct represented a 33% increase over the 15 such matters in fiscal year 1996.(3)
| Alleged Misconduct
|Abuse of prosecutorial or investigative authority
|Misrepresentation to the court or opposing counsel
|Unauthorized release of information (including grand jury information)
|Improper oral or written remarks to the court or grand jury
|Conflicts of interest
|Failure to perform duties properly, negligence
|Failure to disclose exculpatory, impeachment or discovery material
|Improper contacts with represented parties
Disciplinary action was taken against a total of 12 Department attorneys as a result of OPR findings of professional misconduct. In addition, two attorneys resigned from the Department after their termination was proposed and five other attorneys resigned or retired prior to completion of the investigation or the imposition of discipline. One attorney received no discipline and disciplinary action was pending with respect to two attorneys.
Examples of Matters Handled by OPR in Fiscal Year 1997(4) 1. Multiple Discovery Violations. A U.S. Magistrate Judge found over twenty separate Brady, Giglio, and Jencks Act violations relating to the government's failure to disclose information about its witnesses in a drug prosecution. The discovery violations included the failure to disclose plea agreements, benefits that a witness received from the government, a witness' murder conviction, another witness' past criminal conduct, and the fact that one of the witnesses failed a polygraph examination. The Magistrate Judge's findings led the government to dismiss the indictment.
OPR conducted an investigation and concluded that the DOJ attorney engaged in professional misconduct. OPR found that the discovery violations were not intentional or designed to deprive the defendant of a fair trial, but rather stemmed from mistakes and carelessness. OPR determined that the discovery violations, when considered in their totality, constituted a pattern of conduct that was in reckless disregard of the prosecutor's discovery obligations. The DOJ attorney received a written reprimand.
2. Improper Contact with Represented Defendant. OPR investigated allegations that a DOJ attorney, in cooperation with DOJ law enforcement agents, improperly arranged to meet with and debrief two witnesses who were cooperating with government prosecutors in another district. It was alleged that the DOJ attorney and agents arranged the meetings without notifying the prosecutors in the other district (thereby running the risk of interfering with a prosecution in that other district) and that the DOJ attorney contacted one of the witnesses, who was under indictment, without notifying the attorney who represented that witness.
OPR conducted an investigation and concluded that the DOJ attorney believed in good faith that he had been granted authorization for the interviews by a DOJ official and that he did not know or have reason to know that one of the witnesses was under indictment and represented by counsel. Thus, OPR concluded that the DOJ attorney did not engage in professional misconduct.
3. Failure to Timely File an Appellate Brief. A U.S. Court of Appeals sanctioned the government for failing to timely file an appellate brief by prohibiting the government from filing a brief in the case. OPR conducted an investigation and found that the DOJ attorney handling the appeal did not receive a copy of the briefing schedule because he neglected to file a notice of appearance as required by the rules of the appellate court. The DOJ attorney had not begun working on the case when he learned that the due date had already passed.
OPR concluded that the DOJ attorney acted in reckless disregard of his obligation to comply with the appellate court's rules and various orders issued by the court, and by failing to take swift remedial action after learning that the brief was overdue. No discipline was imposed but the DOJ attorney was transferred to another section.
4. Improper Subpoena. A private citizen alleged that a DOJ attorney issued a subpoena to his employer that invaded his privacy and hurt his prospects of becoming a partner.
OPR conducted an investigation and concluded that the DOJ attorney did not engage in professional misconduct because the material subpoenaed was related to a legitimate issue in litigation being handled by the DOJ attorney.
5. Improper Introduction of Evidence. A U.S. District Judge criticized a DOJ attorney for attempting to introduce evidence in violation of a prior ruling of the court. The evidence in question was the statement of a witness to whom the defendant had made incriminating statements while in jail. The court criticized the DOJ attorney for trying to introduce the cellmate's statement during the cross-examination of an expert witness.
OPR conducted an investigation and found that the court's prior ruling stated that the cellmate's evidence could not be introduced in the case-in-chief, but that it did not address whether it could be introduced during cross-examination of a defense witness. Further, OPR found that the DOJ attorney reasonably believed that the "door had been opened" to allow introduction of the cellmate's statement in rebuttal, that the DOJ attorney framed the question in such a manner that defense counsel had the opportunity to object, and that the statement was, in fact, objected to and not introduced at trial. OPR concluded that the DOJ attorney did not engage in professional misconduct.
6. Intentional Misrepresentation to the Court. OPR investigated a DOJ attorney's mishandling of three criminal cases. In one case, OPR concluded that the DOJ attorney intentionally misrepresented the evidence at a plea and sentencing hearing. To ensure that the defendant's plea would be accepted by the court, the DOJ attorney stated that the defendant, an inmate, had only struck another inmate with his fists (a misdemeanor), when in fact the defendant had stabbed the inmate with a homemade knife (a felony). The DOJ attorney also omitted key evidence supporting the government's charges against the defendant. As a result of the attorney's misrepresentations, the court sentenced the defendant to one misdemeanor and dismissed sua sponte another misdemeanor.
In the same case -- and in two additional cases -- OPR found that the DOJ attorney failed to zealously represent the United States by unjustifiably (and without authorization) reducing felony charges to misdemeanors. In the inmate case discussed above, the defendant originally was indicted by a grand jury for two felonies. The DOJ attorney, without justification or supervisory approval, later filed a criminal information reducing the felony charges to misdemeanors. In the second case, the defendant was indicted for a felony but the DOJ attorney, without justification or supervisory approval, filed a criminal information reducing the charge to a misdemeanor. In the third case, the DOJ attorney tried to reduce a felony charge to a misdemeanor, but a supervisor happened to see the proposed criminal information and prevented the DOJ attorney from filing it.
OPR concluded that the DOJ attorney engaged in a pattern of intentional professional misconduct by making material misrepresentations to the court and by unjustifiably reducing the charges in the two cases and by attempting to reduce the charge in the third case. OPR also concluded that the DOJ attorney was not candid and forthright during the investigation. The DOJ attorney resigned shortly after OPR issued its report in this matter.
7. Conflict of Interest -- Attorney's Marriage to Investigator. A complainant sued the government for allegedly having been subjected to illegal surveillance. His allegations were investigated by government agents and their findings were presented to the Department for a prosecutive decision. Prosecution was declined. The complainant's attorney claimed that the matter had not received fair consideration because of a conflict of interest: the DOJ attorney who reviewed the matter was married to a person who worked in the office that conducted the investigation.
OPR conducted an investigation and found that the DOJ attorney and his spouse were permanently recused from all matters to which the other is assigned. Further, OPR found that the spouse, who worked at the investigative agency, had no involvement in the matter raised by the complainant and that the investigator assigned to the matter did not report to the spouse. OPR concluded that there was no evidence that the DOJ attorney engaged in professional misconduct.
8. Perjury by a Government Witness. A U.S. District Judge ordered a new trial on the ground that a government witness committed perjury. The witness had at first denied -- and then unexpectedly admitted under cross-examination -- that he had lied to the government regarding a defendant's role in an event. The court found evasive the DOJ attorneys' explanation that they had been unaware of prior inconsistent statements that the witness made in another judicial district.
OPR conducted an investigation and concluded that the DOJ attorneys did not engage in professional misconduct. The witness, who was advanced in age and suffering from a serious medical condition, initially insisted that he had never accused the defendant of a particular act, and then admitted that he had agreed during another proceeding to a factual account that asserted that the defendant had a role in the same act. The court characterized these inconsistent statements as perjury. OPR found that the statements were more likely the result of the witness's confusion under cross-examination, and that the DOJ attorneys had no knowledge of the witness's prior inconsistent statement.
9. Disclosures to the Media. OPR investigated a DOJ attorney for allegedly leaking a confidential internal DOJ memorandum to a law enforcement agent who, in turn, provided it to the news media. The memorandum was addressed to the DOJ attorney's supervisors and set forth criticisms of the manner in which a particular case had been handled by the supervisors and by the local law enforcement agency. The DOJ attorney also spoke to a reporter about the underlying case so the case would get the attention and resources it needed.
OPR found that the DOJ attorney exercised poor judgment in providing the memorandum to the law enforcement agent who was assigned to the case, but that he did not know the agent would give the memorandum to the media. OPR also found that the DOJ attorney's comments to the reporter controverted DOJ press policy, but that it did not rise to the level of professional misconduct.
10. Alleged Authorization of Unlawful Search. A U.S. District Judge dismissed an indictment on the ground that a search of the defendant's jail cell compromised his right to a fair trial and to be free of self-incrimination. OPR conducted an investigation to determine whether the dismissal stemmed from prosecutorial misconduct.
After the arrest and pre-trial detention of the defendant, the government obtained information that he had hired an individual to murder a government witness. The government also learned that the defendant had in his cell photographs of the witness's home, business and car. After consulting with a supervisory DOJ attorney, agents removed the defendant from his cell and sought a search warrant. The defendant's attorney telephoned the supervisory DOJ attorney to protest the action and filed a motion objecting to the planned search, expressing concern that privileged materials might be seized. A copy of the motion was delivered to the government but was directed to the attorney assigned to prosecute the defendant rather than to the supervisory attorney who had approved the search. A magistrate judge who was not aware of the defendant's motion issued a search warrant. Agents seized from the cell a number of photographs of the government witness's property.
OPR conducted an investigation to determine whether the supervisory DOJ attorney engaged in professional misconduct by failing to advise the magistrate judge of the defendant's motion, or by using the proposed search to obtain privileged information from the defendant's cell. OPR concluded that the supervisory DOJ attorney had taken appropriate and effective steps to guard against the seizure of privileged information, including directing that agents with no prior involvement in the defendant's case be assigned to conduct the search, and giving specific instructions regarding what items were not to be examined, and what was to be seized. OPR also concluded that while it might have been better practice to advise the magistrate judge of the motion, the failure to do so did not constitute professional misconduct because the motion did not seek to stay the search.
11. Failure to Honor Plea Agreement. A U.S. District Court found that a DOJ attorney acted in bad faith by refusing to file a substantial assistance motion on behalf of a defendant who had entered into a plea agreement with the government. Pursuant to the agreement, the defendant pleaded guilty to a narcotics offense and agreed to cooperate fully with the government. The agreement provided that the government reserved the right to evaluate the defendant's cooperation and to file a motion recommending a downward departure from the sentencing guidelines if the government determined that the defendant had provided substantial assistance. The government did not file a motion based on its determination that the defendant had not provided substantial assistance in the investigation or prosecution of another person.
OPR conducted an investigation and found that the attorney had valid reasons for not filing a substantial assistance motion. The DOJ attorney concluded that the defendant's cooperation had not provided a tangible benefit to the government in that the evidence the defendant was able to provide was insufficient to support the arrest or indictment of any other person. Accordingly, the DOJ attorney determined, with the express approval of his supervisors, that the defendant had not provided substantial assistance, and OPR concluded that the attorney did not commit professional misconduct by declining to file the motion.
12. Unprofessional Conduct. OPR investigated allegations that a DOJ attorney shoplifted an item from a store. The investigation revealed that the attorney surreptitiously removed the item from its protective packaging, disposed of the packaging in the men's room, and put the item in his pants pocket. The attorney then left the store without paying for the item. After leaving the store, he drove to the federal courthouse and attended two hearings in which he represented the government. At the conclusion of the hearings, the DOJ attorney was arrested by the local authorities for shoplifting.
OPR concluded that the DOJ attorney intentionally committed the crime of shoplifting by taking the item from the store. OPR also found that the attorney's explanation of the events was less than forthright. OPR concluded that the DOJ attorney (who handled mostly criminal matters) had lost his ability to effectively prosecute criminal cases and recommended that he be terminated. The DOJ attorney resigned shortly thereafter.
13. Misleading the Court. A U.S. District Court criticized a DOJ attorney for misleading the court by describing as a "red herring" an allegation that a witness had destroyed documents and by saying that the government had "no evidence" of document destruction. A witness stated initially that he had destroyed documents on the orders of a DOJ attorney. The witness later recanted, saying that he had lost or misplaced the documents (the documents were later found and produced to opposing counsel).
OPR conducted an investigation and found that the DOJ attorney did not tell the witness to destroy documents. OPR found further that the attorney's comment that there was "no evidence" to support the allegation was not improper. OPR concluded that the DOJ attorney did not mislead the court or commit professional misconduct.
14. Failure to Timely Indict. OPR investigated allegations that a DOJ attorney did not obtain defense counsel's consent to a continuance order waiving the defendant's right to a speedy trial and failed to indict the defendant within the time required under the Speedy Trial Act.
OPR conducted an investigation and found that the defense counsel consented to the continuance (without consulting his client) but through inexperience may not have understood the significance of his actions. OPR found further, however, that the DOJ attorney miscalculated the speedy trial date and indicted the defendant too late. The court dismissed the charges without prejudice for violating the Speedy Trial Act.
OPR concluded that the DOJ attorney's violation of the Speedy Trial Act constituted professional misconduct. The DOJ attorney received an admonishment for failing to secure the indictment in a timely fashion.
15. Improper Conduct in the Grand Jury. A U.S. District Judge dismissed an indictment on the ground that a Department of Justice (DOJ) attorney engaged in a pattern of improper conduct in the grand jury. The conduct involved remarks tending to prejudice the defendant; opining on the evidence presented; and pressing the grand jury to return an indictment quickly by stating that time was short. The court also opined that the DOJ attorney acted improperly by providing doughnuts to the grand jurors.
OPR conducted an investigation that included reviewing the record of the grand jury proceedings, and concluded that the DOJ attorney had not engaged in professional misconduct. OPR found that the attorney had generally been careful to explain to the grand jurors that they must base their decision to indict solely on the evidence presented to them. Therefore, OPR concluded that the statements and actions criticized by the court, when viewed in context, amounted to no more than minor lapses in judgment.
16. Abuse of Prosecutorial Authority. One defendant in a multi-defendant prosecution moved to dismiss the charge against her, claiming she had been indicted only because she had testified against the government at a different trial. The judge scheduled an evidentiary hearing on the defendant's motion, and the defendant served subpoenas on both prosecutors. The government then moved to dismiss the charge against the defendant.
OPR conducted an investigation and concluded that the timing of the indictment of the defendant and other factors negated any inference that she was charged as a result of her testimony in the earlier trial. OPR also concluded that the DOJ attorneys moved to dismiss the charge against the defendant out of a concern that their testimony at the scheduled hearing would violate the advocate-witness rule and disqualify them from handling the prosecution of the other defendants, not out of a concern that evidence would substantiate the claim of vindictive charging.
17. Improper Coercion/Intimidation of a Grand Jury Witness. A grand jury witness alleged that a DOJ attorney mistreated him at a meeting prior to his testimony by expressing disbelief about his planned testimony. The witness was ultimately not asked to testify.
OPR conducted an investigation and found that the DOJ attorney did not engage in professional misconduct but instead acted appropriately under the circumstances. OPR found that a prosecutor's obligation not to present false testimony requires that the prosecutor challenge and probe a witness's statements and recollections prior to presenting a witness's testimony in an official proceeding such as a grand jury.
18. Improper Approval of a Defective Warrant Application. A private citizen alleged that his premises were searched pursuant to a warrant that was not supported by probable cause. OPR conducted an investigation and found that the affidavit supporting the warrant was devoid of probable cause.
OPR concluded that the DOJ attorney who approved the application committed professional misconduct by acting in reckless disregard of his professional obligations. The DOJ attorney received a letter of reprimand.
19. Improper Contact with a Represented Party. A defense attorney for a target of a grand jury investigation alleged that a DOJ attorney who knew that the target was represented by counsel directed officials at the prison where the target was being held on unrelated charges to ask him whether he intended to accept the government's then-pending plea offer.
OPR conducted an investigation and found that a contact with the target occurred but that the person responsible for it was a local police detective assisting the grand jury investigation. OPR found that the DOJ attorney had no prior knowledge of the contact. OPR concluded that the DOJ attorney did not engage in professional misconduct.
20. Failure to Honor Plea Agreement. A defendant's attorney alleged that a DOJ attorney failed to honor a plea agreement and, at the sentencing hearing, improperly "refuted" a motion for a downward departure for substantial assistance.
OPR conducted an investigation and found that the DOJ attorney informed the court at sentencing that the defendant pleaded guilty in a timely manner, cooperated in debriefings, and was found to be credible. The DOJ attorney added, however, that the victim had a different view of the defendant's truthfulness and was available to testify. OPR concluded that the DOJ attorney did not circumvent the letter or the spirit of the plea agreement, and thus did not engage in professional misconduct.
21. Improper Closing Argument. A U.S. Court of Appeals reversed the defendants' convictions on firearm and narcotics charges on the ground that a DOJ attorney in rebuttal closing argument had made an appeal to the jurors' parochial allegiances -- an appeal the court hinted was racist -- when he called the defendants "bad people" and commented on the low level of crime in the community.
OPR conducted an investigation and found no evidence to suggest that the DOJ attorney made his argument as an appeal to either racism or parochialism. OPR concluded that the DOJ attorney made his argument in good faith to rebut the defendants' claims they had been entrapped by government agents. Thus, OPR concluded that the DOJ attorney did not commit professional misconduct.
22. Improper Comments to the Grand Jury. A U.S. District Court criticized a DOJ attorney for making improper comments to the grand jury. The DOJ attorney informed the grand jury that the defendant had previously pleaded guilty to a charge arising from the same facts under investigation but had withdrawn the plea. The DOJ attorney also described the defendant to the grand jury as an arrogant liar.
OPR conducted an investigation and concluded that the DOJ attorney's comments on the initial plea and on the defendant's character were made in reckless disregard of the attorney's obligation not to improperly inflame or influence the grand jury. The DOJ attorney received an admonishment. Operations of Federal Bureau of Investigation OPR
and Drug Enforcement Administration OPR
In addition to the functions described in the preceding sections, OPR assists and oversees the operations of the Offices of Professional Responsibility in the 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 1997.
Federal Bureau of Investigation
The FBI's Office of Professional Responsibility (FBI/OPR) is responsible for the investigation of allegations of misconduct against employees of the FBI. During fiscal year 1997, FBI/OPR had a funded staffing level of 61, including 23 full-time special agents and 38 full-time support employees.
Office of Professional Responsibility
Significant Initiatives in Fiscal Year 1997: The reorganization of the FBI's internal investigative and disciplinary processes planned in fiscal year 1996 was accomplished in fiscal year 1997. The reorganization was approved by Congress in January 1997 and implemented in an order of the Director dated March 5, 1997. The new FBI/OPR is responsible for the functions of investigation and adjudication of misconduct allegations, which formerly were separated between the FBI's Inspection Division and Personnel Division. The new FBI/OPR is headed by an Assistant Director who reports jointly to the Director and Deputy Director. The resources dedicated to investigation and adjudication of misconduct and criminal allegations were doubled, to 23 special agents and 38 support employees.
The FBI also adopted a number of new policies affecting employee integrity and discipline:
Employees who are the subject of an administrative inquiry involving serious misconduct may now be accompanied by counsel during an interview. Previously, employees could seek legal advice, but had no right to be accompanied by counsel during the investigative process.
To address past concerns that employees might be interviewed without adequate information regarding the allegations, a policy was adopted calling for the employee to be notified at the earliest feasible time of the existence of the inquiry and the nature of the allegation. The employee will also be notified when there is a significant change in or expansion of the inquiry.
Employees were given the right to respond to proposed discipline both orally and in writing.
Appeals from disciplinary actions are no longer heard by the division that decided the discipline, but instead by an independent authority. Appeals of suspensions over 14 days, demotions, and dismissals are now heard by a Disciplinary Review Board composed of three FBI executives: one chosen by the employee, one chosen at random, and one chosen from the Inspection Division, which reports only to the Director.
Statistical Summary of FBI/OPR Activities in Fiscal Year 1997: FBI/OPR reported that in fiscal year 1997 it opened 437 matters involving allegations of misconduct against 499 FBI employees. This number represented an increase of 6% over the 413 matters opened in the previous year (see table 3, below). The number of matters closed by the office decreased 15% from 475 in fiscal year 1996 to 402 in fiscal year 1997. These 402 cases involved 454 subject employees. The number of matters pending at the close of fiscal year 1997 increased from 345 to 378 (a 10% increase).
Types of Allegations: The 402 FBI/OPR matters closed during fiscal year 1997 involved a wide variety of allegations. As in previous years, the most common types of allegations investigated were unauthorized disclosure of information, misuse of position, misuse of government vehicles or other property, and unprofessional conduct. The last category, which accounted for 90 allegations involving special agents and 57 allegations involving support 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 222 (55%) of the 402 matters reported closed by FBI/OPR in fiscal year 1997. In 47 cases, matters were closed before completion of the investigation or imposition of discipline because the subject employee retired or resigned while under inquiry. Disciplinary action was imposed on 101 special agents and 121 support employees as a result of FBI/OPR findings.
Examples of Matters Investigated by FBI/OPR in Fiscal Year 1997
1. Embezzlement. A criminal investigation undertaken by FBI/OPR resulted in the indictment of a supervisory special agent for embezzlement of more than $400,000 in funds in his custody, including money seized as evidence, project-generated income, and funds being used in an undercover investigation. After his arrest, the agent admitted to the theft of government funds and explained that he had used the funds to pay substantial gambling debts. The agent was dismissed from the FBI. He was subsequently indicted and pled guilty to embezzlement, making false statements, and obstruction of justice. He was sentenced to five years in prison followed by 3 years on supervised probation, fined $750, and ordered to pay restitution in the amount of $190,500.
2. Extortion. FBI/OPR received an allegation that a special agent had extorted funds from a drug dealer. Extensive investigation, which included consensual recordings of conversations between the dealer and the agent, confirmed the allegation. During his interview, the agent confessed to extorting $3,000 from the drug dealer. FBI/OPR arrested the agent for solicitation of a bribe by a public official. The agent was dismissed by the FBI. He was subsequently indicted and pled guilty to two counts of bribery. He was sentenced to serve 16 months in prison followed by 3 years on supervised probation, and ordered to pay a $3,000 fine.
3. Intervening in Traffic Incident. While on duty in a government car, a special agent allegedly observed another vehicle being operated in an erratic manner, nearly hitting the government vehicle. The agent pulled the second car over using the FBI vehicle's lights and siren. The driver of the second vehicle reportedly emerged and acted in an aggressive manner toward the agent. The agent pointed his service weapon at the driver and ordered him back to his vehicle. Local police officers investigated the incident after the second driver called them from a cellular telephone, but no one was cited at the scene.
FBI/OPR determined that the agent had acted improperly by becoming involved in a local law enforcement matter in a jurisdiction that does not recognize FBI agents as possessing peace officer status. In addition, FBI/OPR concluded that the agent used poor judgment in conducting a traffic stop, failing to notify and involve local authorities, and failing to request tag and driver's license information from the driver. The agent was suspended from duty without pay for 10 calendar days.
4. Providing False Information. A support employee's responses to questions concerning his use and sale of illegal drugs during the polygraph examination portion of his application to become a special agent were determined to be deceptive. The employee subsequently admitted to pre-employment marijuana, LSD and cocaine use and to falsification of several personnel-related documents concerning the drug use. The level of drug use admitted by the employee would have disqualified him from Bureau employment, and the falsification of official documents caused by its omission would have furnished grounds for dismissal. In addition, the employee admitted to frequenting a facility where known illegal drug use occurred, and to continued associations with chronic marijuana users who used that substance in his presence. The employee resigned after being presented with a proposed dismissal letter.
Drug Enforcement Administration
The Drug Enforcement Administration's Office of Professional Responsibility (DEA/OPR), a component of the Inspection Division, is responsible for investigating misconduct allegations against employees of the DEA. The office is headed by a Deputy Chief Inspector and has a staff of 45, including 32 agents, 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.
Office of Professional Responsibility
Significant Initiatives in Fiscal Year 1997: DEA/OPR entered the testing phase of its project to redesign its case data tracking system. The new system was put in place during the last half of the fiscal year, and necessary modifications to both software and hardware were identified. The new system has greatly enhanced DEA/OPR's ability to store and retrieve case-related data and to create customized reports.
Training continued to be an important area of emphasis for DEA/OPR in fiscal year 1997. The office presented a three and one-half day training course for current inspectors, addressing interaction with the Department of Justice OPR, FBI/OPR, and the Public Integrity Section of the Criminal Division, technical resources for investigators, and procedural issues. DEA also sponsored five-day seminars for DEA/OPR inspectors on interview and interrogation techniques and professional standards and ethics in internal affairs investigations.
DEA/OPR officials gave briefings on internal integrity issues and procedures to DEA agents and managers on more than 50 occasions in fiscal year 1997.
Statistical Summary of DEA/OPR Activities in Fiscal Year 1997: During fiscal year 1997, DEA/OPR opened 196 new matters and closed 228 matters. At the end of the fiscal year, 112 matters were pending.
Types of Allegations: The most common types of allegations investigated by DEA/OPR were loss or theft of a defendant's property or funds, unauthorized disclosure of information, failure to follow instructions, and falsification of official reports.
Disposition of DEA/OPR Matters: Misconduct allegations were substantiated in 78 of the 228 matters closed in fiscal year 1997. As a result of these findings, 61 agents and 29 non-agents were disciplined for misconduct. In addition, 21 cases were closed when the subject employees retired or resigned before completion of the investigation or imposition of discipline.
Examples of Matters Investigated by DEA/OPR in Fiscal Year 1997
1. Theft of Government Property. While bundling and bagging seized currency, an agent was observed to be acting suspiciously, apparently attempting to conceal something in his clothing. Based on a previous preliminary "bundle count," a portion of the seized funds was determined to be missing, and the employee was confronted about the missing funds. The agent volunteered to search the work area to locate the missing money. Shortly thereafter, the agent found the money and departed the area. A search of the work area uncovered additional funds located in a bag adjacent to the agent's desk. The investigation revealed that the currency in the bag was taken by the agent from a previous seizure. The agent resigned from the DEA, and pled guilty to three counts of theft of government property. He was sentenced to six months in prison, three years special probation, and $5,700 in fines and restitution. As a result of the investigation, DEA/OPR discovered instances of improper or careless handling of seized currency by DEA personnel, leading to the issuance of letters of caution to six other DEA employees.
2. Misuse of Position. DEA/OPR received an allegation that a DEA agent whose responsibilities included fleet management and authorization of repairs of government vehicles had attempted to obtain free repair services for personally owned vehicles from two vendors. The agent also insinuated to the vendors that the cost of repairing his personal vehicles could be recouped as part of the charges for repairs to government vehicles. These allegations were substantiated, and the agent was dismissed from DEA based on the results of the investigation.
3. Assault. DEA/OPR was notified that a DEA agent had allegedly assaulted individuals on two occasions. The investigation revealed that the agent had engaged in three separate physical altercations while attending social events and consuming alcohol. It was also learned that the agent had driven a government vehicle after consuming alcohol and on two occasions had transported unauthorized passengers. Based on the results of the investigation, the agent was suspended without pay for 45 days.
4. Shoplifting. A DEA agent was arrested and charged with theft after store security personnel observed him placing items valued at over $400 in a shopping cart and exiting the store without paying for the merchandise. Following a jury trial, the agent was convicted of grand theft. The DEA placed the agent on indefinite unpaid suspension pending sentencing. The agent resigned his position with the DEA after being sentenced to serve three years probation, perform 100 hours of community service, and undergo a psychological evaluation. Conclusion
In fiscal year 1997, Departmental attorneys overall continued to perform their duties in accordance with the high professional standards expected of the nation's principal law enforcement agency. As a result of jurisdictional changes implemented in 1995, the Office of Professional Responsibility has continued to focus its mission on the investigation of professional misconduct on the part of Department attorneys. During the year, there was a decrease in the number of matters opened primarily due to changes in case-reporting methodology. There was also an increase in the number of findings of professional misconduct on the part of Department attorneys.
During the fiscal year, the FBI's Office of Professional Responsibility implemented a major reorganization which resulted in the consolidation of the investigative and adjudicative functions under an Assistant Director. The DEA's Office of Professional Responsibility entered the testing phase of its new automated case tracking system designed to increase efficiency in that office.
1. Because individual figures are rounded to the nearest percent, percentage totals in this report may not equal 100%.
2. In two of the matters, OPR found professional misconduct on the part of two Department attorneys.
3. In 14 other matters closed during the fiscal year, the subject attorney was found to have exercised poor judgment. These matters were reported to Department supervisors as performance, rather than misconduct, issues.
4. In order to protect their privacy, all of the subjects in the cases discussed below and in the sections of this report on the FBI's OPR and the DEA's OPR are referred to by the masculine pronoun regardless of the gender of individual subjects.
Updated page April 14, 1999