2016 Investigative Summary 6

Investigation of Alleged Failure to Comply with DOJ Rules and Regulations; Misrepresentation/Misleading the Court

Two defendants moved for a new trial after learning that a cooperating co-defendant who testified against them at their trial had, with the government's help, also cooperated with state authorities in an unrelated state prosecution. In opposing the defendants' new trial motions, the
two DOJ attorneys who tried the case represented that they did not offer the cooperator any benefit, and that he did not receive any benefit from them for assisting the state's prosecution.

A video recording, however, showed that one of the DOJ attorneys promised the cooperator before the defendants' trial that the government would make a favorable sentencing recommendation if the cooperator assisted the state's prosecution. Moreover, after the trial but before the government filed its opposition to the defendants' new trial motions, the DOJ attorneys filed a motion for downward departure on the cooperator's behalf, reciting the cooperator's assistance in the state prosecution. The defendants moved for dismissal of the case, accusing the government of bad faith in failing to disclose the promise made to the cooperator, and of making misrepresentations to the court in its post-trial submissions.

OPR conducted an investigation and concluded that the DOJ attorney who promised the cooperator a favorable sentencing recommendation engaged in intentional professional misconduct, in violation of Section 9-5.001 of the U.S. Attorneys' Manual and his component office's written discovery policy, by failing to disclose to the defendants the promise and the fact that the cooperator had assisted the state. OPR further concluded that this DOJ attorney engaged in intentional professional misconduct in violation of the rule of professional conduct prohibiting misrepresentations to a court by falsely stating in the government's post-trial submissions that the cooperator had not been offered anything, and had not obtained a benefit, for assisting the state. 

OPR also concluded that the second DOJ attorney, who knew that the cooperator had assisted the state, but not that the first DOJ Attorney had promised him a benefit for doing so, engaged in professional misconduct by recklessly disregarding his obligation, pursuant to U.S. Attorneys' Manual § 9-5.001 and his component office's written discovery policy, to disclose to the defendants that the cooperator had assisted the state. In addition, OPR concluded that the second DOJ Attorney, who knew that the government had recited the assistance to the state in the downward departure motion filed on the cooperator's behalf, recklessly disregarded his obligation not to make misrepresentations to a court when he falsely stated to the court in one of the post-trial submissions that the cooperator had obtained no benefit for assisting the state. 

OPR referred its findings to the PMRU, which imposed a suspension without pay regarding the first DOJ Attorney. The PMRU determined that although the first DOJ Attorney's failures to disclose and his inaccurate representations rose to the level of professional misconduct, they were reckless rather than intentional. In addition, the PMRU sustained OPR's finding that the second DOJ Attorney engaged in reckless professional misconduct in violation of Department policy. The PMRU issued a reprimand to the second DOJ Attorney.

At the direction of the PMRU, OPR notified the state bar of OPR's findings for both DOJ Attorneys.