2013 Investigative Summary 1

Investigation of Alleged Failure to Comply with DOJ Rules and Regulations;
Abuse of Grand Jury or Indictment Process;
Failure to Disclose Exculpatory Evidence;
Failure to Disclose Impeachment Evidence;
Failure to Disclose Witness Statement Evidence;
Failure to Keep the Client Reasonably Informed;
Candor to the Court;
Failure to Competently and Diligently Represent the Interests of the Client

A DOJ attorney referred to OPR allegations that she failed to disclose exculpatory information in a criminal case. OPR conducted an investigation and later expanded its investigation in two material respects. First, OPR also considered the DOJ attorney’s prosecution of two companion cases arising from the same law enforcement investigation. Second, OPR considered not only the manner in which the DOJ attorney discharged her duty to provide exculpatory evidence to the defense, but several additional aspects of her conduct in the prosecution of the three cases.

Based on the results of its investigation, OPR concluded that the DOJ attorney violated multiple obligations under the United States Constitution, federal statute and case law, DOJ policy, and state bar rules.

First, with respect to the DOJ attorney’s duty to ensure that charges were supported by probable cause and that admissible evidence would be sufficient to obtain and sustain a conviction, OPR found that the DOJ attorney knowingly sought an indictment with a felony drug conspiracy count for which there was insufficient admissible evidence to obtain and sustain a conviction against all charged co-conspirators.

Second, OPR found that the DOJ attorney’s grand jury presentations in the three cases were deficient and that, in many respects, she violated the standards for proper grand jury presentation, in reckless disregard of DOJ policies. Most seriously, OPR found that the DOJ attorney, in her grand jury presentation for the superseding indictment, failed to present substantial evidence that negated the guilt of one or more defendants, including evidence from a reliable cooperating co-defendant that undermined the main conspiracy count. The DOJ attorney also failed to present to the grand jury substantial credible evidence undermining the main confidential informant’s credibility, including multiple instances in which the informant had misidentified various defendants.

Third, in the two cases that proceeded to trial, OPR found that the DOJ attorney failed to disclose a significant amount of exculpatory information, in intentional violation of her constitutional obligations as well as her obligations under state bar rules. Such evidence included (among other things): law enforcement surveillance evidence indicating that persons other than the charged defendants were responsible for specific drug deals; evidence from cooperating co-defendants indicating that the purported head of the drug-trafficking conspiracy was not their supply source; and evidence from multiple cooperators indicating that co-defendants were misidentified in various drug deals.

Fourth, in the two cases that proceeded to trial, OPR found that the DOJ attorney failed to disclose to the defense substantial evidence impeaching the confidential informant’s credibility, in intentional violation of her constitutional and ethical obligations. Such evidence included (among other things) numerous corroborated and credible allegations of the informant’s ongoing criminal conduct while working with law enforcement, as well as multiple corroborated instances in which the informant had misidentified various charged defendants.

Fifth, in one of the cases that proceeded to trial, OPR found that the DOJ attorney systematically failed to disclose witness statements to the defense, in reckless disregard of her obligations under the Jencks Act, 18 U.S.C. § 3500, Fed. R. Crim. P. 26.2, and state bar rules. Such witness statements included the grand jury testimony of an important trial witness and numerous law enforcement reports, authored by trial witnesses and bearing their signatures, regarding charged drug transactions of which the witnesses had personal knowledge.

Sixth, OPR found that the DOJ attorney intentionally provided sometimes false and, more often, misleadingly incomplete information to her office’s management on multiple occasions, in violation of DOJ policy and state bar rules. In multiple memoranda to her supervisors, the DOJ attorney omitted any mention that purportedly truthful cooperators were providing exculpatory evidence regarding co-defendants, as well as evidence that the main confidential informant was engaged in ongoing felony activity. Some of the DOJ attorney’s memoranda to her supervisors contained affirmative misrepresentations.

Seventh, OPR found that the DOJ attorney engaged in professional misconduct by intentionally disregarding her duty of candor to the court, in violation of state bar rules. In one instance, the DOJ attorney misled the court during a sentencing hearing by arguing, contrary to the weight of credible evidence, that a defendant was the sole supplier of the drug trafficking conspiracy.

Eighth, OPR found that the DOJ attorney’s conduct, taken as a whole, amounted to a wholesale failure of her duty to represent her client, the United States, diligently and competently, in violation of state bar rules. The DOJ attorney brought serious felony charges against a large number of citizens based on a cursory investigation and review of supporting evidence. Her grand jury practice was careless and sloppy. She failed to scrupulously document and disclose a large quantity of exculpatory and impeachment evidence. She systematically failed in her duty to disclose witness statement evidence. Her memoranda to her supervisors were frequently incomplete and materially misleading. Finally, her various representations to the court, both orally and in writing, reflected a lack of diligence in ascertaining and truthfully communicating facts.

The DOJ attorney retired after reviewing and commenting upon OPR’s draft report. Thereafter, OPR referred its final report to the PRMU, which determined that OPR’s findings and conclusions were accurate, complete, and supported by the evidence. At the direction of the PMRU, OPR referred its findings to appropriate state bar disciplinary authorities.