2014 Investigative Summary 2

Investigation of Alleged Violations of the Jencks Act and Fed. R. Crim. P. 16

OPR investigated the alleged professional misconduct of a DOJ attorney who, as he prepared for trial, learned from an agent that:

(1) a recording of the agent's undercover conversation with a cooperating witness either had been destroyed or had been given to another investigative agency; and 

(2) the agent participated in a previously unreported conversation with the defendant.

Upon learning of these conversations and the recording, the DOJ attorney sent a letter to defense counsel disclosing the agent's previously unreported conversation with the defendant, but did not disclose until the agent testified at trial that a conversation was recorded or that the missing recording may have been destroyed. During the agent's cross-examination at trial, his testimony revealed that the recording was missing, and the government subsequently moved to voluntarily dismiss the charges against the defendant based in part on the DOJ attorney's failure to disclose that the recording was missing.

OPR concluded that the DOJ attorney committed professional misconduct by acting in reckless disregard of his obligations under the Jencks Act, 18 U.S.C. § 3500, Federal Rule of Criminal Procedure 16, and the district court's local rule, by failing to disclose to the defense that the agent had recorded a telephone conversation with the cooperating witness and that the recording was missing.

Rather than making an immediate disclosure, the Department attorney sought additional information about what had happened to the missing recordings, but failed to make any further disclosures to the defense.

OPR referred its findings to the PMRU for consideration of possible discipline. The DOJ attorney retired soon after OPR issued its report, and the PMRU did not have the opportunity to consider or impose discipline. The Department did not refer the matter to bar disciplinary authorities because OPR did not find a violation of a state bar rule.