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2022 Investigative Summary 2

Investigation of Alleged Misrepresentations to Court

An Assistant U.S. Attorney (AUSA) submitted a written request to a United States magistrate judge for an extension of time to conduct a preliminary hearing in a criminal case, citing as a basis for that request the government’s inability to indict the case before the preliminary hearing date due to the lack of a grand jury quorum. The magistrate judge granted the government’s request for extension.  However, on appeal to the district judge assigned to the case, the court learned that the AUSA’s representation about the lack of a grand jury quorum had been inaccurate.  The district judge criticized the AUSA’s failure to verify information about grand jury availability and found that the AUSA’s misstatements had led the magistrate judge to errantly grant the extension.  Moreover, the district judge concluded that the government’s inability to indict within the statutory timeframe for conducting a preliminary hearing was not a valid legal basis for postponing the preliminary hearing, regardless of the grand jury’s availability.  The district judge therefore dismissed the indictment without prejudice and ordered the immediate release of the defendant

Based on its investigation, OPR found that the AUSA did not commit professional misconduct.  OPR concluded that the AUSA neither intentionally nor recklessly misrepresented the grand jury’s status to the magistrate judge, but the AUSA exhibited poor judgment by negligently disregarding information that grand jury quorums were available during the relevant time frame.  The AUSA also exhibited poor judgment by failing to take reasonable steps to ensure proper supervisory oversight of the request for a postponement of the preliminary hearing and by failing to conduct the necessary research relevant to the request to postpone the preliminary hearing.  OPR further concluded that although the AUSA’s request for a postponement was premised on an improper legal basis, the claim was not frivolous and was made in good faith.  However, the AUSA exhibited poor judgment by making factual assertions to the court about the need for an extension of the preliminary hearing that did not provide the court with a clear and accurate understanding of the basis for that request.  Finally, OPR found that the AUSA again exhibited poor judgment by failing to review readily available documentary evidence before making factual assertions to USAO supervisors and to OPR, and by carelessly articulating the facts in a way that resulted in a misleading understanding of the AUSA’s conduct. 

Updated June 14, 2022