Office of Professional Responsibility
Fiscal Year 1996 Annual Report
Office of Professional Responsibility Fiscal Year 1996 Annual Report
Jurisdiction and Functions
Changes in OPR's Jurisdiction, Case Reporting, and Statistical System
Statistical Summary of OPR Activities in FY 1996
Examples of Matters Handled by OPR in FY 1996
Operations of Federal Bureau of Investigation OPR and Drug Enforcement Agency OPR
Federal Bureau of Investigation OPR
Significant Initiatives in FY 1996
Statistical Summary of FBI/OPR Activities in FY 1996
Examples of Matters Investigated by FBI/OPR in FY 1996
Drug Enforcement Administration OPR
Significant Initiatives in FY 1996
Statistical Summary of DEA/OPR Activities in FY 1996
Examples of Matters Investigated by DEA/OPR During FY 1996
Office of Professional ResponsibilityFiscal Year 1996 Annual Report
Jurisdiction and Functions
Changes in OPR's Jurisdiction, Case Reporting, and Statistical System
Statistical Summary of OPR Activities in Fiscal Year 1996
Table 1. Sources of Miscondust Complaints
Sources of Misconduct Complaints Received in FY 1996
|Source||Number of Complaints||Percent of Total|
|Department components & employees |
|Judicial opinions & referrals||25||21%|
Table 2. Subject Matter of Misconduct Complaints Received in FY 1996
|Alleged Misconduct||No. of |
|Abuse of prosecutorial or investigative authority||34||28%|
|Unauthorized release of information (including grand jury information)||16||13%|
|Conflicts of interest||15||12%|
|Misrepresentation to the court||14||12%|
|Failure to perform duties properly, negligence||10||8%|
|Failure to disclose exculpatory, impeachment or discovery material||9||7%|
|Improper oral or written remarks to grand jury or court||6||5%|
|Improper contacts with represented parties||2||2%|
|Other (incl. unauthorized practice of law, violation of civil rights, etc.)||3||3%|
Examples (3) of Matters Handled by OPR in Fiscal Year 1996
- Intentional Misrepresentation to the Court. OPR investigated allegations that a DOJ attorney made false statements of fact in a motion for an enlargement of time. The DOJ attorney represented in the motion that the response had been prepared prior to the filing deadline but that it was inadvertently filed a few days late. OPR discovered that the attorney did not file the response on time because the attorney did not prepare it until after the filing deadline. The DOJ attorney conceded that a misrepresentation had been made but argued that it did not concern a material fact. OPR concluded that the attorney engaged in intentional professional misconduct. Discipline was recommended but none was imposed because the attorney's temporary appointment was terminated prior to the conclusion of the OPR investigation. OPR referred the matter to the attorney's state bar.
- Conflict of Interest. OPR investigated an allegation by a state official that a DOJ attorney, acting on information provided by the attorney's spouse, initiated a criminal investigation of the state official and another employee who worked in the same office as the DOJ attorney's spouse. The state official, to whom both the spouse and the employee were subordinate, noted that the DOJ attorney's spouse had recently been denied a promotion and was a friend of a person who resigned from the state office after being subject to discipline.
OPR found that the DOJ attorney participated in the criminal investigation to a limited extent by personally telephoning state employees to request documents relating to the alleged criminal conduct. OPR concluded that the DOJ attorney engaged in professional misconduct by failing to realize that investigating a spouse's allegation against the spouse's boss created an appearance of a conflict of interest. The DOJ attorney was given a written reprimand.
- Failure to Disclose Brady Material. The defendant in a drug-trafficking case claimed to have been forced to carry drugs by a foreign national who threatened to harm the defendant and her family if she refused to participate. Prior to trial, the prosecutor learned that an investigative agency was aware of a suspected drug trafficker of the same nationality who lived in the area described by the defendant, whose surname was strikingly similar to the name given by the defendant, and who had allegedly been involved in two deaths. The DOJ attorney did not disclose this information to the defendant and at trial urged the jury to question "whether this [foreign national] . . . really exists, whether there is really a drug source besides the defendant." The jury rejected the defense of duress and convicted the defendant. The DOJ attorney revealed the government's knowledge about the foreign national just prior to sentencing. On appeal, the court reversed the conviction due to the government's failure to disclose the information that would have bolstered the defendant's defense of duress and due to the DOJ attorney's suggestion to the jury that it should conclude that the person who allegedly threatened the defendant did not exist.
OPR found that the DOJ attorney engaged in professional misconduct by consciously disregarding his discovery obligations, made an improper argument to the jury, recklessly disregarded his obligation to be candid with the court, and intentionally misrepresented facts to OPR. OPR recommended a range of discipline from a substantial suspension without pay to termination. The supervising attorney, however, issued a written reprimand to the DOJ attorney, based on a review of his personnel records, interviews of the attorney's other supervisors, and the fact that the incident occurred before the supervising attorney assumed office.
- Abuse of Prosecutorial Authority. OPR investigated allegations from a private attorney that his client, a criminal investigator, had been improperly "blacklisted" by, among others, a DOJ attorney. OPR's investigation found that after a judge and several DOJ attorneys expressed doubts about the investigator's credibility as a witness, an independent inquiry was conducted. Based on the results of that inquiry, the DOJ attorney decided that the investigator could no longer be used as a government witness in a particular federal district. OPR concluded that the decision not to use the investigator as a witness constituted a legitimate exercise of the DOJ attorney's management prerogatives and found no misconduct.
- Improper Disclosure of Nonpublic Information. OPR investigated an allegation that a DOJ attorney conducting a criminal investigation may have improperly given a second DOJ attorney non-public information that an investment made by the second DOJ attorney might be in jeopardy. OPR determined that the DOJ attorney had legitimate investigative reasons for contacting the second DOJ attorney -- that is, to obtain information about the target of the investigation from a reliable and discreet source. Thus, OPR found that the DOJ attorney's conduct did not constitute professional misconduct, but that the DOJ attorney exercised poor judgment for failing to consider the potential appearance of a conflict of interest created by his contact.
- Conflict of Interest - Relationship with a Witness. OPR investigated allegations that a DOJ attorney had sexual contact with a cooperating witness for whom the attorney later wrote a letter in support of a motion for reduction in sentence. OPR determined that the allegations were true. The attorney resigned from his position with the Department while disciplinary proceedings were pending. OPR referred the matter to the attorney's state bar.
- Failure to Correct False Testimony of a Government Witness. OPR investigated criticism by a court that a DOJ attorney failed to correct the false testimony of an important government witness relating to the terms of his cooperation agreement and, instead, endorsed the false testimony in closing argument. Through its investigation, OPR found that the court's criticism was accurate. OPR concluded that the DOJ attorney acted in reckless disregard of the obligation not to sponsor perjurious testimony or misrepresentations to the court. Disciplinary action was recommended and imposed.
- Neglect of Duty/Failure to Comply with Court Orders. A supervisory attorney sent to OPR evidence that a DOJ attorney had repeatedly neglected the legal matters assigned to him, including failing to file pleadings, disregarding court orders, and declining to respond to inquiries from other Department of Justice components. In some cases, the attorney's dereliction had resulted in the imposition of sanctions against the government. The supervisor recommended that the attorney be removed from his position.
OPR directed the attorney to respond in writing to the allegations, but he resigned his position without responding. OPR informed the chief disciplinary counsel for the state bar in which the former DOJ attorney was licensed, noting that the allegations had been made and that OPR was unable to resolve them in view of the attorney's resignation and non-cooperation.
- Improper Closing Argument. OPR investigated a judge's finding that a DOJ attorney made an improper closing argument that resulted in a mistrial. The judge found that the DOJ attorney made a comment in closing argument that the court had specifically directed the attorney not to make. OPR found that the DOJ attorney, an experienced lawyer, exhibited poor judgment and acted in reckless disregard of the court's admonition. Disciplinary action was recommended and imposed.
- Violation of Federal Rule of Criminal Procedure 6(e). OPR investigated an allegation by defense counsel that a DOJ attorney violated Rule 6(e) by stating in a colloquy with the District Court that a witness had appeared before a federal grand jury and had asserted his Fifth Amendment rights. The defense counsel asserted that the DOJ attorney compounded the alleged violation by restating the in-court colloquy to the media.
OPR found that the DOJ attorney, who left the Department after the conduct at issue but cooperated with the OPR investigation, did not engage in professional misconduct. OPR determined that the statements made by the DOJ attorney to the District Court about the witness' assertion of Fifth Amendment rights were in response to direct questions about the grand jury proceedings and thus were permissible disclosures under Rule 6(e)(3). OPR found further that the in-court disclosure rendered the statements a matter of public record.
- Violation of Federal Rule of Criminal Procedure 6(e). OPR investigated allegations by a DOJ attorney that another attorney violated Rule 6(e) by disclosing matters occurring before the grand jury without authorization of the court. The disclosure was made to a state agency. OPR found that the attorney acted in good faith in disclosing information to a cooperating state agency just prior to the disclosure of an indictment and that no harm resulted from the limited disclosure. OPR found no professional misconduct.
- Unauthorized Outside Practice of Law. OPR investigated allegations that a DOJ attorney engaged in the outside practice of law during the attorney's tenure with the Department without obtaining DOJ authorization. The DOJ attorney provided legal services to family members and friends in numerous separate matters on a pro bono basis. The DOJ attorney claimed he did not know about the general rule against private outside practice or the need to obtain a waiver of that rule. OPR found no evidence that the DOJ attorney's private practice affected his official responsibilities or violated the conflict of interest provisions. Nevertheless, OPR concluded that the DOJ attorney engaged in the unauthorized outside practice of law on a number of occasions and negligently failed to comply with the applicable regulations. Disciplinary action was recommended and imposed.
- Abuse of Prosecutorial Authority. OPR investigated an allegation that a DOJ attorney negotiated a cooperation agreement with a sentenced defendant containing a promise to file a motion for a sentence reduction knowing that the motion had no reasonable chance of success because the jurisdictional time limit for such a motion had passed. OPR found that the DOJ attorney and the defendant's attorney negotiated the agreement in the belief that a motion for reduction of sentence would be timely because the rule provides an exception to the time limit when the defendant had not been asked for certain information earlier and had been unaware of its value to the government. OPR concluded that the DOJ attorney acted in good faith and did not commit professional misconduct.
- Failure to Correct False Testimony of a Government Witness. OPR investigated criticism by a court that a DOJ attorney failed to correct the false testimony of an important government witness relating to the terms of his cooperation agreement and, instead, endorsed it in his closing argument. During cross-examination, the witness testified that he had been promised nothing and had received nothing from the government in return for his cooperation and his trial testimony. While the government had fully disclosed the terms of the witness' cooperation agreement, the defense attorney did not challenge the witness' statement. In closing argument, the DOJ attorney commented that the witness, who was about to be released from prison, could not get any more time and nothing else had been done for him. That statement was also incorrect; the plea agreement provided that the government would not prosecute the witness for perjury he committed at his own trial.
OPR found that the DOJ attorney committed professional misconduct by not correcting the false testimony of the government witness and instead endorsing that false testimony in closing argument. Specifically, OPR found that the DOJ attorney acted in reckless disregard of the obligation not to sponsor perjurious testimony or misrepresent the record to the court. Discipline was recommended and imposed.
- Failure to File Substantial Assistance Motion. OPR investigated criticism by a court concerning the refusal by two DOJ attorneys to renew a substantial assistance motion after the defendant withdrew his guilty plea and proceeded to trial. The court found that the government's conduct was designed to punish the defendant for exercising his constitutional right to trial and was improper. The court also found that the attorneys' explanation for not filing the motion -- that the defendant had not actually provided substantial assistance -- was not credible since they had earlier filed a substantial assistance motion.
OPR interviewed the DOJ attorneys and their supervisors regarding the developments leading to the decision not to file a substantial assistance motion following the defendant's trial and conviction. OPR found that the DOJ attorneys faced a unique set of facts and that the caselaw did not appear to preclude a refusal to renew the substantial assistance motion. The DOJ attorneys discussed the issue with their supervisor and all reasonably believed that once the defendant withdrew his plea, the government was free to negotiate a new plea without regard to the earlier promise to file a substantial assistance motion. Moreover, the DOJ attorneys articulated convincing reasons for not renewing the motion, including new information about the defendant's prior criminal conduct and obstructive behavior during trial, which substantially diminished his usefulness as a witness. OPR therefore disagreed with the court's finding that the DOJ attorneys' real motive in refusing to renew the substantial assistance motion was to retaliate against the defendant for exercising his right to a jury trial and concluded that the DOJ attorneys engaged in no misconduct.
Operations of Federal Bureau of Investigation OPR
and Drug Enforcement Administration OPR
Federal Bureau of Investigation
Office of Professional Responsibility
Table 3. FBI/OPR Caseload in Fiscal Years 1995 and 1996
|FY 95||FY 96 ||Percent Changes|
Examples of Matters Investigated by FBI/OPR in Fiscal Year 1996
- Theft of Computer Equipment. A division at FBI Headquarters found that computer equipment was missing from a storage area. The matter was reported to FBI/OPR, and a closed circuit television camera was installed. Subsequently, a support employee was videotaped removing a computer system from the area. The employee admitted having taken equipment valued at approximately $30,000, some of which was subsequently recovered. The employee was dismissed for theft of government property. The matter was referred to the U.S. Attorney's Office for prosecutive consideration.
- Alleged Collusion with Theft Ring. FBI/OPR received an allegation that a special agent had assisted a construction equipment theft ring by removing reports of stolen equipment from the National Crime Information Center (NCIC) to facilitate the resale of the equipment. Investigation disclosed that the allegation was based on a comment overheard by a third person. The individual who had made the comment stated in court that he had no information to support the allegation and had merely been speculating. The matter was closed administratively.
- Misuse of Government Vehicle. A special agent, while driving a government vehicle in which several members of his family were riding as passengers, was involved in a collision. The agent asserted that he used the vehicle because he had no other vehicle available to him at the time. The agent was suspended without pay for 30 days for misuse of an FBI vehicle.
- Unauthorized Disclosure of Investigative Information. FBI/OPR received an allegation that a special agent had disclosed information about pending FBI search warrants to family members, who in turn provided that information to the subjects of a drug investigation, compromising the planned execution of the search warrants. The agent's relatives confirmed that the agent had given them the information. The agent, after initially denying the allegation, took a polygraph test and was determined to be deceptive. The matter was referred to the U.S. Attorney's Office for prosecutive consideration. The agent was dismissed from the FBI for unauthorized disclosure of information.
- Misappropriation of Government Funds. According to information received by FBI/OPR, a special agent posted overseas misappropriated government funds and falsified various documents, including vouchers he submitted for personal travel expenses. The agent admitted falsifying vouchers on numerous occasions and engaging in other misconduct. He was placed on administrative leave pending conclusion of the investigation, but elected to retire before the investigation was completed. Prosecution was declined by the Department of Justice. The FBI is seeking to recover the fraudulently obtained funds from the former agent.
- Abuse of Subordinate Employee. A special agent serving as a senior manager was alleged to have maintained an improper relationship with a subordinate employee, and to have engaged in physically abusive behavior toward that employee in the workplace. An investigation confirmed the existence of the superior-subordinate relationship, several instances of physical abuse of the subordinate employee in FBI office space, and other unprofessional conduct by the agent. The agent, who declined to be interviewed and asserted his Fifth Amendment right in view of potential assault charges, retired prior to the matter's being adjudicated. Prosecution was declined.
Drug Enforcement Administration
Office of Professional Responsibility
Table4. DEA/OPR Caseload in Fuscal Years 1995 and 1996
|FY 95||FY 96 ||Percent Changes|
Examples of Matters Investigated by DEA/OPR in Fiscal Year 1996
- Theft of Government Funds. Field managers notified DEA/OPR that an audit of files on government vehicles disclosed that a DEA employee had submitted an unusually large number of charges for repairs and maintenance for several vehicles. DEA/OPR's investigation revealed that the employee had submitted numerous false claims for such expenses between 1993 and 1996, receiving approximately $30,000 from DEA as a result. The employee was arrested by DEA/OPR, and resigned from DEA. The employee pled guilty to one count of theft of government property and was sentenced to two years of incarceration (suspended), six months of house arrest, and two years of supervised probation, and ordered to repay the government $30,000.
- Misuse of Official Position and Improper Association. DEA/OPR initiated an investigation based on separate complaints received from two women, both confidential sources, that the same DEA employee was sexually involved with them. One complainant also alleged that the DEA employee had used cocaine in her presence. The investigation revealed that the employee had engaged in an intimate relationship with one of the women and that he had led her to believe that criminal charges were pending against her. The investigation also revealed that the employee had improperly reported the dates and details of the seizure of currency; had improperly handled and not properly documented the acquisition of non-drug evidence; and had allowed a non-DEA employee access to his office voice mail messages which frequently contained messages related to investigative matters. The employee was removed from employment with DEA.
- Alleged Corruption. DEA/OPR received an allegation from the FBI that a DEA employee may have compromised an FBI wire intercept, that an FBI investigation had obtained evidence of telephone traffic between the DEA employee's home telephone number and the residence of the FBI's subject, and that the DEA employee appeared to be living beyond his means. The investigation revealed that the DEA employee had a prior working relationship with the FBI subject and that the DEA employee's children and the subject's children were acquainted and attended school together. It was determined that the telephone contact noted during the FBI investigation was a result of the children discussing school matters. No evidence was found to substantiate the allegation that the DEA employee may have compromised the wire intercept, and FBI research indicated that technical problems could have caused the possible compromise. Finally, a review of the DEA employee's credit history and real estate holdings did not substantiate the allegation that he was living beyond the level supported by his salary and other legitimate income. A letter of clearance was issued to the employee.
- Conduct Unbecoming a DEA Employee. DEA/OPR initiated an investigation based on allegations that a DEA employee had sexually harassed DEA employees and contract workers on numerous occasions. The investigation revealed that despite counseling, the DEA employee engaged in a pattern of offensive behavior toward female employees in the workplace. The employee was removed from employment with DEA.
- Failure to Follow Instructions of a Supervisor and Failure to Follow Written Instructions. DEA supervisors complained that during the course of an undercover investigation, a DEA employee had improperly distributed drugs, failed to follow directions, and exercised poor judgment. The DEA/OPR investigation revealed that the employee had disregarded the supervisor's specific directions in several aspects of the case. It was established that the employee had failed to submit an operational plan for supervisory approval and to record or otherwise corroborate telephone contacts between a confidential source and the target of the investigation as instructed by the supervisor. In addition, without obtaining proper authorization, the employee had instructed the confidential source to return cocaine to the target of the investigation instead of seizing it. The employee received a 10-day suspension.
- Unauthorized Disclosure of Information. An allegation was received that a DEA employee had attempted to obtain DEA sensitive information for personal gain. The employee had requested copies of DEA investigative reports stating that the reports had been requested by a local sheriff's department which was conducting an investigation of the named individual. The investigation revealed that the employee had, through a series of misrepresentations, attempted to obtain copies of several DEA investigative reports involving a relative of the DEA employee. The employee intended to provide the information to an attorney representing another family member in civil proceedings regarding the estate of a deceased relative. The investigation also revealed that on two separate occasions, the employee had accessed DEA information systems and made inquiries concerning the relative, and had subsequently disclosed the information without authorization. The employee was dismissed from DEA.
1. OPR is not required to recommend a range of discipline when it finds performance-related deficiencies.
2. In 13 other matters closed during the period, the subject attorney was found to have exercised poor judgment. These matters were reported to Department supervisors as performance, rather than misconduct, issues. Under OPR's previous statistical reporting system, such matters were reported as matters in which the allegations were substantiated.
3. All of the subjects in the cases discussed below and in the sections of this report on the FBI's OPR and the DEA's OPR are referred to by the masculine pronoun regardless of the gender of individual subjects in order to protect their privacy.
4. As described in this Office's fiscal year 1994 report, authority to adjudicate certain misconduct cases previously adjudicated by the Administrative Summary Unit was delegated to field office and headquarters division managers pursuant to a policy implemented on February 23, 1994. The delegation policy applies to cases which according to FBI precedent call for a penalty of suspension of 14 days or less. Certain offenses were exempted from the delegation order and must be adjudicated by ASU (or the Adjudications Unit, under the new plan), regardless of the anticipated severity of the disciplinary action. These offenses include discriminatory conduct such as sexual harassment, drug-related misconduct, failure to cooperate or lack of candor during an administrative inquiry, voucher fraud or other falsification of reports, shooting-related matters, theft, and felony arrests.
5. Of the 55 cases involving allegations of drug abuse or drug-related misconduct, 4 involved special agents and 51 involved support employees.
6. These figures represent matters designated Professional Responsibility (PR) Investigations by DEA/OPR. In addition to the 283 PR investigations opened in fiscal year 1996, DEA/OPR opened 113 general files. General files are opened when a preliminary review is necessary to determine whether sufficient information exists to warrant a PR investigation. Of the 113 general files opened in fiscal year 1996, 26 were converted to PR investigations and are reflected in the number of PR investigations opened during the year.
7. This number is larger than the number of matters in which misconduct was substantiated due to the fact that some matters involved more than one employee.
Updated page January 30, 1998