2017 Investigative Summary 6

Investigation of Alleged Unauthorized Sentencing Reduction Offer; 
Failure to Inform Defense of Impeachment Information; Failure to Correct Misleading Testimony

During a trial preparation session, a DOJ attorney told a cooperating witness who was hesitant to testify that he could do better than the stipulated term of imprisonment set forth in his written plea agreement, and emphasized that he should understand what she was telling him. The DOJ attorney made these inducements without first obtaining her supervisors’ approval, and did not disclose the inducements to defense counsel.

At trial, the DOJ attorney elicited testimony from the cooperating witness about the terms of his written plea agreement, but he testified that the government had not made any additional promises to him, and that the stipulated term of imprisonment was the sentence he expected to receive. The DOJ attorney failed to disclose the oral inducements she had made to the cooperating witness at the trial preparation session, and she failed to correct his testimony at trial.

OPR initiated an inquiry, which it later converted to an investigation. In its report of investigation, OPR concluded that the DOJ attorney:

(1) committed professional misconduct in reckless disregard of her obligation to obtain authorization from her supervisors before suggesting to a cooperating defendant that a further downward departure was possible;

(2) committed professional misconduct in reckless disregard of her obligation under Giglio, to inform the defense prior to trial about her oral inducements to the cooperating witness;

(3) committed professional misconduct in reckless disregard of her obligation under Napue, to correct the cooperating witness’ misleading testimony at trial.

OPR referred the matter to the PMRU, which adopted OPR’s findings, and issued a letter of reprimand.