2023 Investigative Summary 2
INVESTIGATION OF ALLEGED FAILURE TO COMPLY WITH DISCOVERY OBLIGATIONS AND FAILURE TO CORRECT MISREPRESENTATION TO THE COURT
A U.S. Attorney’s Office notified OPR that a court had found that the Assistant U.S. Attorney (AUSA) assigned to a complex multi-defendant case had violated the government’s disclosure obligations under Brady v. Maryland and had made misrepresentations to the court about the government’s possession of evidence obtained from a third party. OPR further learned that in the course of litigating the same case, the AUSA had made an additional inaccurate statement of fact to defense counsel and the court about evidence presented to the grand jury. Upon learning that her statement was inaccurate, and after allegedly consulting with her supervisor, neither the AUSA nor her supervisor notified the court of the earlier misrepresentation or disclosed to the court the true facts. OPR also examined allegations arising from a defendant’s motion to have her case dismissed with prejudice due to alleged vindictive prosecution.
Based on the results of its investigation, OPR concluded that although the misstatement regarding the grand jury evidence resulted from an excusable mistake, the AUSA and her supervisor engaged in professional misconduct by failing to inform the court promptly about the earlier misstatement, which was material to pending litigation in the case. Accordingly, OPR found that the AUSA violated her general duty of candor and her obligation under the rules of professional responsibility to correct a misrepresentation, and her supervisor violated her duty to provide adequate supervision and to keep the client fully informed. OPR further concluded that the AUSA’s failure to disclose to the defense the evidence in question did not rise to the level of professional misconduct because the AUSA believed in good faith, based on earlier court rulings on discovery issues, that the evidence was not relevant or material and did not need to be disclosed. OPR further concluded that although the AUSA should have fully advised the court about the existence of the evidence, the AUSA did not violate her duty of candor in her representations to the court about the evidence because her statements on the subject were responsive to the specific colloquy with the court. In addition, although the AUSA inaccurately described to the court the government’s actions with respect to some of the evidence, that inaccuracy resulted from an understandable mistake. Finally, with regard to the alleged vindictive prosecution, OPR concluded that the AUSA did not prosecute the defendant in bad faith or in a vexatious or frivolous manner.