2019 Investigative Summary 5

Investigation of Alleged DESTRUCTION OF DOCUMENTS;
FALSE TESTIMONY;
FAILURE TO PROVIDE DISCOVERY

After a hearing on a motion to dismiss an indictment for prosecutorial misconduct, the court dismissed the indictment with prejudice, concluding that the government violated its discovery obligations when it failed to disclose exculpatory documents.  The court also found that the case agent had testified falsely regarding certain subpoenaed records and that the government improperly destroyed evidence during the pendency of a new trial motion.

Following its investigation, OPR concluded that the Assistant U.S. Attorney committed reckless professional misconduct by causing the destruction of documents prior to the conclusion of the case, without the consent of the defendant, and after the case agent requested that the documents not be destroyed.  With respect to other issues raised during the post-trial litigation, OPR found that the government’s errors were generally the result of mistakes, misunderstandings, and poor communication by and among the members of the prosecution team.  OPR found no evidence indicating that the case agent intentionally testified falsely or that the prosecutors were aware at the time that her testimony was inaccurate.  The evidence showed that the government failed to disclose several documents that contained information favorable to the defendant.  However, OPR concluded that the discovery failures did not constitute professional misconduct by the prosecutor, as she disclosed other information that the defendant could have used to discover the same or similar favorable information through the exercise of reasonable diligence.  The Professional Misconduct Review Unit subsequently adopted OPR’s findings and conclusions with respect to the destruction of the documents and issued a written admonishment.