2013 Investigative Summary 6

Investigation of Alleged Failure to Comply with Plea Agreement Policies;
Failure to Comply with Policies Regarding Immunity or Non-Prosecution Agreement

A court of appeals found that during a sentencing hearing, a DOJ attorney breached the plea agreement with the defendant in two respects. First, the government used information from an interview of the defendant that the government had agreed it would not use; and second, the government argued for a sentence higher than the plea agreement permitted. The court vacated the defendant’s sentence and remanded the case for resentencing.

Based on the results of its investigation, OPR determined that as to the first basis, the DOJ attorney engaged in professional misconduct by acting in reckless disregard of her obligation not to disclose information obtained from the defendant during an interview when the government had agreed it would not use such information.

As to the second basis, OPR concluded that the DOJ attorney did not engage in misconduct or exercise poor judgment in her sentencing request. Rather than intending to ask for a higher sentence in violation of the plea agreement, the DOJ attorney was attempting to rebut what she perceived to be improper arguments by defense counsel. Accordingly, OPR concluded that her argument criticized by the court was the product of a mistake, and that instead of immediately making the argument, she first should have raised the issue of defense counsel’s improper arguments with the court.

OPR referred its findings to the PRMU; the DOJ attorney received an informal letter of admonishment.