Office of Professional ResponsibilityFiscal Year 1998 Annual Report
Jurisdiction and Functions of OPR
Statistical Summary of OPR Activities in FY 1998
Examples of Matters Investigated by OPR in FY 1998
FBI Office of Professional Responsibility
Significant Initiatives in FY 1998
Statistical Summary of FBI/OPR Activities in FY 1998
Examples of Matters Investigated by FBI/OPR in FY 1998
DEA Office of Professional Responsibility
Significant Initiatives in FY 1998
Statistical Summary of DEA/OPR Activities in FY 1998
Examples of Matters Investigated by DEA/OPR in FY 1998
Tables Sources of Misconduct Complaints Received in FY 1998 3
Table 2. Subject Matter of Misconduct Complaints Received in FY 1998 4
Annual Report for Fiscal Year 1998
Jurisdiction and Functions of OPR
Statistical Summary of OPR Activities in Fiscal Year 1998
|Source||Number of Complaints||Percent of Total|
|Department components & employees |
|Judicial opinions & referrals||28||36%|
|Alleged Misconduct||No. of |
|Abuse of prosecutorial or investigative authority||30||28%|
|Misrepresentation to the court or opposing counsel||17||16%|
|Failure to perform duties properly, negligence||16||15%|
|Unauthorized release of information (including grand jury information)||12||11%|
|Failure to disclose exculpatory, impeachment or discovery material||10||9%|
|Improper oral or written remarks to the court or grand jury||5||5%|
|Failure to comply with DOJ rules and regulations||4||4%|
|Conflicts of interest||3||3%|
Examples of Matters Investigated by OPR in Fiscal Year 1998(5)
1. Failure to Disclose Brady/Giglio Material. A U.S. Court of Appeals found that the government violated Brady by failing to disclose to the defense three items of information for impeachment purposes, and reversed one conviction in a wire fraud and RICO case and remanded the remaining convictions for a determination of whether a new trial was warranted. As OPR later learned, in a previous opinion vacating convictions and remanding the same case following an earlier trial, the Court of Appeals had identified another item of information that should have been disclosed for impeachment purposes.
2. Violation of Petite Policy. A criminal defendant alleged that a DOJ attorney violated DOJ's Petite policy concerning dual prosecutions by failing to obtain DOJ approval before prosecuting the defendant for the same acts that had given rise to an earlier conviction in state court for a violation of state law.
3. Failure To Timely Correct Magistrate Judge's Finding. A U.S. District Court adopted a U.S. Magistrate Judge's finding that the government had threatened a defense attorney with criminal prosecution under 18 U.S.C. Â§207, which places employment restrictions on former government officers and employees, unless the attorney withdrew from representing the defendant in a criminal matter. The District Court found that Â§207 did not prohibit the defense attorney from representing the defendant. Because the government's alleged threat of prosecution caused the Magistrate Judge to allow the defendant to request new counsel rather than risk prosecution of the attorney, the District Court called the government's actions "reprehensible" and found they came very close to violating the defendant's Sixth Amendment right to counsel.
4. Unauthorized Disclosure of Information. A U.S. District Judge requested that OPR investigate the disclosure of confidential government information that was subject to a sealing order in a civil case and that OPR review a DOJ attorney's failure to notify the Judge when the attorney discovered that the information had been disclosed.
5. Unauthorized Practice of Law. OPR investigated a referral from a DOJ component that one of its attorneys admitted he was not actively licensed to practice law because he had failed to complete the requisite continuing legal education courses and had failed to pay Bar dues. According to the referral, when the attorney first realized he was not properly licensed, he failed to take affirmative action to advise his supervisors and to obtain an active license. As the component informed OPR, it was only when the attorney was asked by DOJ to complete a certification of licensure that he admitted he was not properly licensed.
6. Failure to Disclose Brady/Giglio Material. A U.S. Court of Appeals reversed convictions in a money laundering and drug conspiracy case because the government failed to disclose impeachment material contained in a series of tape-recorded telephone conversations between an incarcerated cooperating witness and a law enforcement agent with whom the cooperator was conducting a clandestine sexual affair. The Court of Appeals held that comments the agent made to the cooperator during these conversations constituted governmental promises of leniency in sentencing that should have been disclosed as Giglio information.
7. Failure to Disclose Rule 16 Material. The attorney for a defendant charged in U.S. District Court with transporting a large quantity of drugs alleged that the government failed to disclose in a timely manner material the defendant had requested pursuant to Rule 16 of the Federal Rules of Criminal Procedure. Specifically, he alleged that the government disclosed too late items including statements the defendant made at the time of arrest, photographs taken by law enforcement officers, and the government's analysis of fingerprint evidence. The District Court Judge criticized the performance of the law enforcement officers in the case for failing to disclose the existence of these items to the prosecutor and stated in an order that he would consider assessing costs against the government, though he also stated that the prosecutor's office did not appear to be at fault. Based upon evaluation of the effects of the late disclosures, the government decided to dismiss the indictment.
8. Abuse or Misuse of Official Position. OPR investigated an allegation made by a confidential informant that he had a sexual relationship with the DOJ attorney handling the case for which he was providing information. The attorney denied that he had a sexual, romantic, or other kind of relationship with the informant.
9. Alteration of a Court Document. OPR investigated an allegation that a DOJ attorney substituted corrected pages in a search warrant affidavit that already had been reviewed and signed by a U.S. Magistrate Judge and, without informing the Magistrate Judge, filed the corrected version with the clerk of the court as if it were the original that the Magistrate Judge relied upon in issuing the warrant. Soon after the corrected version of the affidavit was filed, another DOJ attorney learned what had happened and immediately directed that the Magistrate Judge be informed and the corrected version be withdrawn. The DOJ attorney who filed the corrected version admitted filing it but denied any improper intent.
10. Improper Coercion or Witness Intimidation. A U.S. Court of Appeals found that a DOJ attorney acted improperly by warning the attorney for a potential defense witness, just days prior to trial, that if the witness testified for the defense, the government would "revoke" the witness' immunity and prosecute him. The witness previously had appeared before the grand jury, pursuant to court-ordered immunity, and had been warned by the DOJ attorney of the consequences of giving false testimony.
11. Misrepresentation to an Administrative Agency. OPR investigated an allegation that a DOJ attorney, while noting an appeal from an adverse decision in his personal Equal Employment Opportunity Commission (EEOC) action against DOJ, incorrectly claimed to have learned of the decision several days after he actually did, thereby making his otherwise untimely appeal notice appear to be timely.
12. Attempt to Breach Attorney-Client Privilege. A private attorney alleged that a DOJ attorney attempted to breach the attorney-client privilege in an EEOC proceeding. The plaintiff in the proceeding, a former DOJ employee, filed a motion pro se to extend time to oppose DOJ's motion for dismissal on the basis that he had hired a new attorney who needed more time to prepare the opposition. The extension motion quoted the plaintiff's former attorney as stating that "upcoming trials" in other cases prevented him from properly representing the plaintiff in the EEOC proceeding. The former attorney alleged that, after the extension motion was filed, the DOJ attorney called him, stated that the plaintiff had disparaged the former attorney's ability to represent him, and tried to persuade him to reveal the supposedly "real" reason he was replaced.
13. Failure to Provide Discovery in a Civil Matter. A U.S. District Court criticized a DOJ attorney for failing to provide discovery to a plaintiff in a civil matter. After the attorney admitted that a discovery deadline set by the Court had not been met as a result of logistical difficulties on the part of the defendant agency in obtaining material, the Court issued an order reprimanding the attorney for failing to participate in good faith in discovery. When the attorney acknowledged in a motion for reconsideration that he had erred by not seeking an extension of the deadline and by not keeping the Court apprised of the defendant's efforts to comply with discovery, the Court issued an order ascribing the problems to poor judgment rather than a lack of good faith on the attorney's part.
14. Unauthorized Disclosure of Information. During the course of an unrelated investigation, OPR learned that a DOJ attorney brought the draft of a superseding indictment home for the attorney's spouse to review before the superseding indictment was returned but after the original indictment in the case had already been returned and filed.
15. Improper Closing Argument. In decisions it issued in two criminal cases, a U.S. Court of Appeals criticized a DOJ attorney for making improper statements during the government's rebuttal closing arguments. The Court affirmed the convictions in both cases.
16. Mischaracterization of Evidence. A U.S. Court of Appeals found that a DOJ attorney during his closing argument mischaracterized evidence that had been admitted at trial.
17. Subornation of Perjury; Misrepresentation to the Court. OPR investigated an allegation that a DOJ attorney offered into evidence at a hearing a witness' testimony he knew or should have known was false and two documents he knew or should have known contained false information.
18. Breach of Plea Agreement. A U.S. Court of Appeals found that the government breached its plea agreement with a defendant when, at the sentencing hearing, a DOJ attorney made statements supporting the view that the defendant was responsible for a greater amount of drug trafficking than the government had stipulated to in the plea agreement. The attorney maintained that his remarks were made only in response to a request by the District Court Judge for information. The Court of Appeals remanded the case for resentencing.
19. Conflict of Interest. A federal inmate alleged that the DOJ attorney who prosecuted his case had a conflict of interest because, during the time that the DOJ attorney and the inmate's defense attorney were negotiating his guilty plea, the two attorneys were also negotiating the possible formation of a law partnership.
20. Misrepresentation/Misleading the Court. A U.S. Court of Appeals criticized a DOJ attorney for failing to advise the District Court Judge at sentencing that he could not depart upwardly in a second degree murder case on account of the victim's death. The Court of Appeals found it self-evident that the U.S. Sentencing Guidelines already had taken into account the fact of the victim's death in setting the guideline range for second degree murder. Although the Court of Appeals affirmed the sentence based on the defendant's knowing waiver of any objection to the upward departure, it called the DOJ attorney's conduct at sentencing "reprehensible."
Federal Bureau of Investigation
Office of Professional Responsibility
Examples of Matters Investigated by FBI/OPR in Fiscal Year 1998
1. A support employee was investigated by the U.S. Postal Service after a suspicious package addressed to him was intercepted by a drug-sniffing dog. The package was found to contain approximately 23 grams of marijuana. Based on this discovery, the employee was directed to undergo drug testing, which revealed the presence of marijuana metabolite in his urine. He also failed a subsequent polygraph examination during which he was questioned about his personal use of marijuana and his involvement in the sale, purchase and distribution of illegal drugs during his FBI employment. The employee was dismissed.
2. A special agent made extensive unauthorized purchases on credit cards issued by the government for undercover investigations and official travel expenses. In addition, the special agent failed to meet his financial obligations in a timely manner, leading to the addition of finance and late charges and jeopardizing the covert nature of the undercover accounts. The special agent also misused his government-assigned vehicle, engaged in sexual conduct with a former criminal informant while on duty, and violated time and attendance regulations. The special agent was suspended from duty without pay for 40 calendar days and placed on probation for one year.
3. An FBI/OPR investigation found that a special agent had given false answers to certain medical questions in his application for employment, and failed to give candid answers during the subsequent administrative inquiry. The agent was found to have made material misrepresentations on official documents relating to his qualifications to become a special agent. The agent was dismissed.
4. A special agent converted to personal use funds which were to be used for investigative purposes. FBI/OPR also found that the agent lacked candor during the administrative inquiry in his signed, sworn statement about the handling of the money. The special agent was dismissed.
5. A criminal investigation was initiated by FBI/OPR into an allegation that a drug dealer was paying protection money to a special agent. The investigation resulted in the arrest of the special agent. He was charged with violation of 18 U.S.C. Â§ 201 which prohibits the solicitation and acceptance of a bribe by a public official. The special agent was dismissed. He was subsequently indicted and pled guilty to two counts of bribery. He was sentenced to serve 16 months in prison, to three years supervised probation, and to pay a $3,000 fine.
6. An FBI/OPR investigation concluded that a special agent had committed time and attendance fraud; falsified official documents; misused a government vehicle; consumed alcohol while on duty; committed voucher fraud; was insubordinate toward a supervisor; and attempted to use government resources improperly. The special agent resigned prior to receipt of the dismissal letter.
Drug Enforcement Administration
Office of Professional Responsibility
Examples of Matters Investigated by DEA/OPR in Fiscal Year 1998
1. Improper Association with a Confidential Source and Participating in an Improper Financial Transaction. DEA/OPR investigated a complaint from an individual who formerly served as a confidential source for the DEA. The former source complained that he had lent $25,000 to the DEA agent with whom he had worked and that the agent had failed to repay him. The allegations were substantiated by DEA/OPR's investigation, and the Board of Professional Conduct charged the DEA agent with conflict of interest. The agent received a demotion and a 30-day suspension.
2. Misuse of Government American Express Card. DEA/OPR received information that an employee appeared to be misusing a charge card issued by the agency for expenses associated with official travel. The monthly activity statements on the account indicated that the employee had used the card on more than 20 occasions to receive cash advances from automatic teller machines. The employee initially denied responsibility for the cash advances, but ultimately acknowledged that he had both misused the charge card and consumed alcohol during duty hours. The employee was removed from his position.
3. Driving Under the Influence of Alcohol While Off Duty. DEA/OPR opened an investigation after a DEA agent was arrested by local police for driving under the influence of alcohol. The police reported that the agent, who appeared to be intoxicated, was belligerent, uncooperative, disrespectful and used profanity several times. The agent refused to take a breath test and was arrested. The agent entered a guilty plea to the charge of operating a vehicle while impaired by liquor and was ordered to serve 24 months probation and pay a $740 fine. DEA suspended the employee for five days.
4. Assault and Civil Rights Violation/Failure to Report an OPR Matter. The target of a DEA investigation, who had previously provided information to DEA on a confidential basis, complained that a DEA agent had kicked him and used a racial slur. The complainant also alleged that he had previously reported the incident to a DEA supervisor, who took no action. DEA/OPR initiated an investigation.
5. Falsification of Official Records. DEA/OPR initiated an investigation into questionable expenses claimed by a DEA agent on relocation vouchers. Eighty percent of the claimed expenses were for meals, but in many cases the receipts submitted did not correspond with items claimed. In other cases, receipts were submitted for several purchases at the same store on the same day, or receipts indicated that the purchaser had received a senior discount for which the agent and his family members were not eligible. The agent also claimed $166.00 per diem although only $80.00 was authorized, and continued to claim temporary quarters expenses for two weeks after the household goods had been delivered to the new residence.
6. Theft of Government Funds. This investigation was initiated when an employee admitted taking $6,000 from the imprest fund after learning that an unscheduled audit of the fund was being conducted. During the investigation, DEA/OPR learned that during previous audits, the amounts on the final audit forms had been altered to cover up any missing amounts. The employee was indicted and pled guilty to one count of theft of government property. Thereafter, the employee was removed from his position.Conclusion
1. A portion of the bill was ultimately enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. 105-277, and was codified at 28 U.S.C. Â§ 530B.
2. In our report for fiscal year 1997, we noted that one of the significant changes was the implementation of the current practice of counting for statistical purposes only matters that become full investigations handled by OPR attorneys. We noted that this change had the effect of reducing statistically the number of matters opened. In addition to full investigations, OPR also receives, reviews and conducts inquiries into numerous other matters involving allegations of misconduct on the part of Department employees.
3. Two of the matters involved two separate findings of professional misconduct on the part of the attorney involved. One of the matters involved findings of professional misconduct against two attorneys. In addition, in 15 other matters closed during the fiscal year, the subject attorney was found to have exercised poor judgment. These latter matters were reported to Department supervisors as performance, rather than misconduct, issues.
4. For fiscal year 1997, we reported 20 matters involving findings of professional misconduct which accounted for 16.5% of the matters closed.
5. In order to protect their privacy, all of the individuals 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 their gender.
6. These figures represent files designated as "PR" or professional responsibility matters. In addition, DEA/OPR reported that it opened 42 general files in fiscal year 1998. General files are opened when a preliminary review is necessary to determine if sufficient information exists to warrant a PR investigation. Of the 42 general files opened in FY 1998, 5 were converted to PR investigations and are reflected in the number of PR investigations opened for the fiscal year.
7. This figure is higher than the number of allegations substantiated because there were instances in which more than one employee was disciplined as a result of a PR investigation.
8. Cases in which the subject(s) resigned or retired before completion of the investigation or the imposition of discipline are not included in the number of allegations substantiated since no final determinations were made in these cases by DEA's deciding official.