2016 Investigative Summary 7

Investigation of Alleged Failure to Comply with DOJ Rules and Regulations

A DOJ attorney self-reported to OPR potential deficiencies in his grand jury presentation. In response to a defense motion to dismiss the indictment, the DOJ attorney reviewed the grand jury transcripts and noticed that his questions contained potentially prejudicial characterizations of the defendant. The DOJ Attorney brought these statements to the attention of his supervisor, who, upon reviewing the transcripts, identified additional deficiencies in the DOJ attorney's grand jury presentation. Based on these deficiencies, the government moved to dismiss the indictment. 

OPR conducted an investigation and concluded that the DOJ Attorney committed professional misconduct by acting in reckless disregard of his obligations pursuant to Department policy with regard to his grand jury presentation by:

(1) failing to present sufficient evidence to support a probable cause determination by the grand jury;

(2) presenting evidence to the grand jury of conduct not charged in the indictment that could inflame, unfairly prejudice, or improperly influence the grand jury, without proper foundation or explanation;

(3) making inappropriate and prejudicial comments before the grand jury;

(4) relying on hearsay evidence without explaining the hearsay nature of the testimony or clearly identifying the sources of that evidence for the grand jury;

(5) improperly providing factual information to the grand jury through his own unsworn statements rather than through a sworn witness. OPR further concluded that the DOJ Attorney exercised poor judgment during his grand jury presentation by presenting evidence of the
defendant's other uncharged fraudulent conduct without clarifying for the grand jury the limited relevance of that evidence.

The DOJ Attorney also self-reported to OPR judicial criticism of his conduct with regard to discovery in two additional cases. In both cases, the district court criticized the DOJ Attorney with respect to the timeliness and thoroughness of his discovery practice.

Based on the results of its investigation, OPR concluded that the DOJ Attorney did not commit professional misconduct in those cases. 

OPR reported its findings and conclusions to the PMRU. The PMRU was unable to impose discipline due to the DOJ Attorney's retirement. Because OPR had not found a violation of an applicable bar rule, no referral to the state bar was authorized.