2025 Investigative Summary 6

Investigation of Alleged Breach of a Plea Agreement

An Assistant U.S. Attorney (AUSA) reported to OPR that an appellate court found that she violated the terms of a plea agreement by actively opposing a sentence reduction instead of recommending the reduction as promised in the plea agreement. OPR also investigated whether the AUSA followed the U.S. Attorney’s Office’s (USAO) policy requiring supervisory approval for plea agreements.  
In the plea agreement, the AUSA agreed to recommend a downward departure from the sentencing guidelines for acceptance of responsibility.  However, at sentencing, the AUSA did not make the recommendation, instead arguing in favor of the probation office’s conclusion that the defendant was ineligible for the departure and providing several reasons why the departure was unwarranted.  
OPR concluded that the AUSA committed professional misconduct in reckless disregard of her unambiguous obligation to adhere to the terms of the plea agreement when she did not make the required sentencing reduction recommendation and advocated against it.  Because the AUSA was an experienced attorney, had used the plea agreement many times prior to this sentencing, and was serving as a supervisor at the time, OPR concluded that she should have known that she had to make the required sentencing recommendation regardless of the probation office’s findings. 
OPR also concluded that the AUSA did not commit professional misconduct by failing to receive supervisory approval for the plea agreement.  Because of the ambiguous nature of the USAO’s plea review policy and the accepted practices in the AUSA’s office location, the evidence did not establish that the AUSA violated an unambiguous obligation to seek supervisory approval for the plea agreement.  OPR referred its findings to the Professional Misconduct Review Unit.