U.S. Department of Justice
Office of Professional Responsibility
Fiscal Year 1999 Annual Report
U.S. Department of Justice
Office of Professional Responsibility
Annual Report for Fiscal Year 1999
Jurisdiction and Functions of OPR
Significant Initiatives in FY 1999
Statistical Summary of OPR Activities in FY 1999
Examples of Matters Investigated by OPR in FY 1999
FBI Office of Professional Responsibility
Significant Initiatives in FY 1999
Statistical Summary of FBI/OPR Activities in FY 1999
Examples of Matters Investigated by FBI/OPR in FY 1999
DEA Office of Professional Responsibility
Significant Initiatives in FY 1999
Statistical Summary of DEA/OPR Activities in FY 1999
Examples of Matters Investigated by DEA/OPR in FY 1999
Table 1. Sources of Misconduct Complaints Received in FY 1999 4
Table 2. Subject Matter of Misconduct Complaints Received in FY 1999 5
Annual Report for Fiscal Year 1999
Jurisdiction and Functions of OPR
Significant Initiatives in Fiscal Year 1999
Statistical Summary of OPR Activities in Fiscal Year 1999
|Sources of Misconduct Complaints Received in FY 1999|
|Source||Number of Complaints||Percent of Total|
|Judicial opinions & referrals||53||60%|
|Department components & employees |
The subject matter of the 144 allegations contained in the 88 investigations opened by OPR in fiscal year 1999 is set out in table 2, below. (2)
Number of Misconduct Allegations in Investigations Opened by OPR
in Fiscal Year 1999, by Type of Allegation
|Type of allegation||Number Received in FY-99|
|Abuse of authority, including abuse of prosecutorial discretion||35|
|Improper remarks to a grand jury, during trial or in pleadings||23|
|Misrepresentation to the court and/or opposing counsel||13|
|Unauthorized disclosure of confidential, including Rule 6(e), information||12|
|Failure to perform/dereliction of duty||12|
|Failure to comply with Brady, Giglio or Rule 16 discovery||8|
|Failure to comply with court orders or federal rules||8|
|Conflict of interest||7|
|Failure to comply with DOJ rules and regulations||6|
|Subornation of perjury/failure to correct false testimony||6|
|Interference with defendant's rights||3|
|Lateness (i.e., missed filing dates)||3|
|Lack of fitness to practice law||3|
|Improper contact with represented party||2|
|Failure to comply with civil discovery||1|
|Failure to comply with Congressional discovery requests, including subpoenas||0|
|Unauthorized practice of law||0|
Examples of Matters Investigated by OPR in Fiscal Year 1999 (7)
1. Misrepresentation to the Court. At a suppression hearing, an agent testified that a named DOJ attorney had approved the application for the search warrant in question. The agent's testimony at the hearing was based on information provided by a second agent, who had actually spoken by telephone with the DOJ attorney prior to the search. The attorney, however, denied having approved the application. Thereafter, the second agent wrote a memorandum to his supervisors suggesting that the attorney did not remember approving the application because the attorney, who was at home at the time, was under the influence of alcohol. The attorney forcefully denied this claim. At a subsequent court hearing, the first agent testified that he had not intended to imply in his previous testimony that the attorney had actually seen the affidavit, only that the attorney had reviewed the facts of the case and authorized the agents to apply for a search warrant. The second agent also testified at the hearing, and stated that he did not in fact believe the attorney was under the influence of alcohol when they discussed the warrant on the telephone.
2. Improper Closing Argument. A court found that a DOJ attorney made an improper closing argument by arguing that the defendant had killed a person even though the defendant had not been charged with the murder and the DOJ attorney knew that another person had been convicted of the murder. During OPR's investigation, the DOJ attorney acknowledged that her closing argument was grossly improper, and OPR concluded that the attorney engaged in intentional professional misconduct. The attorney received a three-day suspension.
3. Unauthorized Disclosure to the Media. OPR received allegations that a DOJ attorney leaked to the press incorrect and damaging information relating to a pending criminal case. In addition, the media reported that members of the trial team were pressuring agents to fabricate or exaggerate witness statements to incriminate the defendants. OPR initiated an investigation and interviewed the attorneys and agents assigned to the case, as well as other knowledgeable sources. OPR concluded that no one on the trial team pressured agents to fabricate or exaggerate witness statements but it was unable to determine the source of the leaks.
4. Unauthorized Disclosure to the Media. OPR investigated an allegation that a DOJ attorney leaked a sealed document to the press. The attorney admitted releasing the document to the press but stated that she did not know it was under seal. The case was the subject of intense media scrutiny, and at the time the release occurred, the DOJ attorney was working extremely long hours and balancing many competing demands. Based on the results of its investigation, OPR concluded that the DOJ attorney made a mistake in releasing the document to the press but concluded that she did not commit professional misconduct or exercise poor judgment.
5. Violation of Grand Jury Secrecy; Abuse of Process. A DOJ attorney pursuing a criminal investigation alleged that another DOJ attorney who was working on a civil forfeiture action had engaged in professional misconduct. The complaining attorney contended that the other attorney had disclosed grand jury information in violation of Rule 6(e), Federal Rules of Criminal Procedure, and acted improperly by using grand jury subpoenas to gather evidence for a civil forfeiture case. The complaining attorney also alleged that the civil forfeiture complaint lacked evidentiary support and conflicted with the theory underlying the related criminal investigation. In response, the attorney handling the civil forfeiture matter alleged that the complainant made the allegations of misconduct in retaliation for his prior complaint of sexual harassment.
6. Discovery Violation; Shifting Prosecution Theory Mid-Trial. OPR investigated allegations that a DOJ attorney violated her discovery obligations in two unrelated cases. The DOJ attorney acknowledged that in both cases she failed to disclose materials to defense counsel in violation of the Federal Rules of Criminal Procedure but asserted that her failure was not intentional. OPR concluded that in one of the cases the DOJ attorney committed professional misconduct by acting in reckless disregard of her discovery obligations, and the attorney received a letter of reprimand. In the second case, OPR concluded that the DOJ attorney did not commit professional misconduct because the discovery violation resulted from a misunderstanding between the attorney and a law enforcement agent.
7. Misrepresentation to the Court. OPR received an allegation that a DOJ attorney made a misrepresentation to the court by stating at a sentencing hearing that he anticipated filing a motion for reduction of sentence because the defendant was cooperating with the government. Later, when the defendant sought to have the government file the motion, the DOJ attorney opposed it and asserted that the defendant had not been truthful.
8. Misuse of Official Position. OPR received allegations from two sources that local law enforcement officials terminated a criminal investigation prematurely when evidence suggested that a relative of a DOJ attorney was involved in criminal conduct. During OPR's investigation, local law enforcement officials involved in the criminal investigation stated that the DOJ attorney did not contact them or attempt to influence their actions in any way. The DOJ attorney informed OPR that she was aware of rumors that her relative was involved in criminal conduct and that she had been careful not to provide assistance to the relative. The DOJ attorney denied contacting other law enforcement officials about her relative's activities.
9. Failure to Comply with Court Order. An appellate court issued an order to show cause why a DOJ attorney should not be subject to disciplinary action for failing to comply with the court's order to amend the government's brief to comport with appellate rules. The DOJ attorney filed a statement with the court explaining that he had misunderstood the court's order, that he had tried to seek clarification of the order, and that he erroneously concluded that he needed to do nothing further because he had earlier filed an amended brief which he mistakenly thought the court had not seen when it issued its order directing him to amend the government's brief. The DOJ attorney acknowledged in his response to the show cause order that, in retrospect, he should have realized that the court had directed him to file a second amended brief.
10. Abuse of the Grand Jury; Improper Statements to the Media. A defense attorney alleged that a DOJ attorney violated state bar rules by making a statement to the media that contained her opinion about the defendant's guilt. Defense counsel also claimed that DOJ attorneys committed misconduct by compelling the defendant to testify before a grand jury when he was a target of the investigation.
11. Improper Opening Statement and Closing Argument. An appellate court ruled that a DOJ attorney made statements in her opening statement and closing argument that were not supported by the evidence. The defendant had been arrested at an airport with four bags, one of which contained heroin. The defendant initially admitted that the bags were his but later claimed that the bag containing the heroin had been given to him to deliver to a friend. The DOJ attorney argued at trial that the defendant knew about the heroin because a suit found in the bag containing the heroin fit the defendant. Unbeknownst to the DOJ attorney, the law enforcement agents who inventoried the bags had commingled the clothing found in the bags and had redistributed it randomly among the bags.
12. Misrepresentation to the Court. A bankruptcy court found that a DOJ attorney acted unethically by failing to disclose to the court and the debtor's counsel that she had sent a letter to a government agency asking it to place a hold on any funds being paid to the debtor corporation. In the case before the bankruptcy court, the debtor corporation owed the government over $3 million. During the bankruptcy, the DOJ attorney learned that the debtor corporation might be performing services for the government and receiving payments from an agency other than the one to which it owed the $3 million. The DOJ attorney wrote a letter to the second agency asking that it investigate the matter and hold any funds being paid to the debtor. The debtor complained to the bankruptcy court about the hold placed on the funds, and the court decided that the DOJ attorney should have told the court and the other parties about her request.
13. Misuse of Official Position. OPR investigated an allegation that a DOJ attorney misused his position in an attempt to expedite his spouse's naturalization. The DOJ attorney contacted DOJ employees involved in processing the naturalization application, corresponded with the processing center using official DOJ letterhead, and obtained the DOJ administrative immigration file on his spouse to get information needed to complete the application form.
14. Violation of Petite Policy; Subornation of Perjury. Defense counsel alleged that DOJ attorneys violated DOJ's Petite policy by failing to obtain DOJ approval before prosecuting the defendant for the same acts that had given rise to a prosecution and acquittal in state court. Defense counsel also alleged that the DOJ attorneys presented testimony from a local police officer that the DOJ attorneys knew or should have known was false.
15. Improper Closing Argument. An appellate court ruled that a DOJ attorney made an improper closing argument by mischaracterizing a witness's testimony in a way that assumed a fact not in evidence. The court noted that the witness's testimony was unclear because the DOJ attorney had asked the witness a compound question, leaving it uncertain which part of the question the witness answered in the affirmative.
16. Misrepresentation to Defense Counsel. A trial court criticized a DOJ attorney for "ambushing" the defense by not advising them earlier of the government's intention to call a witness who created a conflict of interest for defense counsel. OPR conducted an investigation and found that the DOJ attorney informed defense counsel about the witness as soon as that witness agreed to cooperate with the government. OPR also found that the DOJ attorney never indicated to the defense that the witness would not be called to testify. OPR concluded that the DOJ attorney acted appropriately under the circumstances.
17. Improper Examination of a Witness. An appellate court criticized a DOJ attorney for cross-examining a defendant on the facts of his prior conviction for a violent felony. The DOJ attorney asserted that the defendant "opened the door" to the cross-examination by attempting to minimize his guilt. OPR found that the defendant did not "open the door" to cross-examination on the facts of his prior conviction. Based on the results of its investigation, OPR concluded that the DOJ attorney exercised poor judgment in his questioning of the defendant. OPR referred this finding of poor judgment to the DOJ attorney's employing component for consideration in a management context. The DOJ attorney received an admonishment.
18. Misconduct Before the Grand Jury. OPR investigated allegations that a DOJ attorney subpoenaed the subject of a grand jury investigation but failed to provide him with an advice of rights form in violation of DOJ policy. OPR also investigated allegations that the DOJ attorney offered her personal opinions to the grand jury. OPR found that the standard practice at the attorney's office was to provide advice of rights forms only to targets, not subjects. Nonetheless, OPR concluded that the attorney exercised poor judgment because she knew DOJ policy and did not follow it. OPR also concluded that the DOJ attorney committed professional misconduct by acting in reckless disregard of her obligation to refrain from giving her personal opinion to the grand jury. The DOJ attorney received an admonishment. The attorney's office provided assurances that in the future it would comply with DOJ policies requiring attorneys to send an advice of rights form along with a subpoena to subjects of grand jury investigations.
19. Failure to Comply with Court Order. A judge sanctioned a DOJ attorney for (1) failing to timely file requested jury instructions as required by court order; (2) failing to timely respond to plaintiffs' motion in limine; and (3) violating the court's order to avoid referring to certain contested evidence. The court's sanction consisted of a public reprimand of the DOJ attorney. OPR found that the attorney showed poor judgment for failing to meet the deadlines with respect to submission of the proposed jury instructions and filing of the government's response to the motion in limine, and further, for failing to ask the judge for clarification of the court's expectations following discussion of those issues during pretrial conferences. However, based on OPR's review of the transcript and information provided by the DOJ attorney, OPR found that the attorney did not violate the judge's order barring any reference to certain contested evidence. OPR referred the finding of poor judgment to the DOJ attorney's employing component for consideration in a management context.
20. Improper Contact Between Prosecutor and Court Clerk. An appellate court ruled that a DOJ attorney created an appearance that the trial court had participated in plea discussions in violation of Rule 11 of the Federal Rules of Criminal Procedure when the DOJ attorney informed a courtroom clerk of the terms of a plea offer she planned to extend to the defendant.
21. Prejudicial Statement by Prosecutor. OPR investigated an allegation that a DOJ attorney prejudiced the defendant by filing prior to trial an unsealed submission containing unfavorable information about the defendant. OPR found that the submission was filed in response to a defense request under Federal Rule of Evidence 404(b) for any evidence that the defendant had committed uncharged crimes or other bad acts. OPR concluded that the DOJ attorney had a duty to respond to the Rule 404(b) request and that he did not commit professional misconduct by doing so on the public record.
22. Misrepresentation to the Court. A DOJ component informed OPR about a situation in which a DOJ attorney may have misrepresented facts in an ex parte motion for emergency relief. OPR conducted an investigation and found that sufficient facts supported the representation and that the DOJ attorney did not commit professional misconduct by acting in reckless disregard of the truth or with an intent to deceive the court.
23. Breach of Plea Agreement. A law enforcement agent alleged that a DOJ attorney breached a plea agreement in which the government had agreed not to seek an enhancement under the Sentencing Guidelines for obstruction of justice. The DOJ attorney allegedly provided information to the probation officer concerning the defendant's obstructive conduct, and the presentence report prepared by the probation officer included a recommendation for an obstruction of justice enhancement.
24. Misuse of Subpoenas. An appellate court ruled that DOJ attorneys in two cases violated Rule 17 of the Federal Rules of Criminal Procedure by using subpoenas to compel witnesses to attend ex parte pre-trial interviews. The appellate court requested OPR to investigate the subpoena practice of the DOJ component where the attorneys worked.
25. Failure to Disclose Brady Material. A trial court ruled that two DOJ attorneys violated their Brady obligations by failing to discover and produce certain scientific documents that could have supported the defense theory. OPR found that the DOJ attorneys acted appropriately. OPR noted that the defense's failure to abide by discovery rules requiring disclosure of its scientific theories made it impossible for the government to predict what information might be relevant to a defense theory. Thus, OPR concluded that the attorneys did not have a duty to spend hundreds of hours searching for data that even the defense did not consider relevant and that it was doubtful that the data was material to the prosecution. An appellate court subsequently reversed the trial court's finding of a Brady violation.
26. Violation of Grand Jury Secrecy. A DOJ component referred to OPR an allegation that a DOJ attorney violated Rule 6(e) of the Federal Rules of Criminal Procedure by disclosing to private sector experts documents generated by the grand jury investigation and the names of grand jury targets. The DOJ attorney sought input from the experts to assure herself that the charges contemplated were warranted. She had intended to present testimony from one of the experts at a pre-trial detention hearing, and she included the experts on the "6(e) list" he filed with the court.
Operations of Federal Bureau of Investigation OPR
and Drug Enforcement Administration OPR
Federal Bureau of Investigation
Office of Professional Responsibility
Examples of Matters Investigated by FBI/OPR in Fiscal Year 1999 (8)
1. A support employee stole a co-worker's credit card and charged large purchases to the co-worker's account. The employee was indicted for committing credit card fraud, in violation of 18 U.S.C. Â§ 1029(a)(1), and was convicted. The employee was dismissed.
2. A support employee, acting without authorization, confirmed the vehicle license plate number of an individual who was under FBI surveillance. Upon discovering that the license plate number belonged to a relative of a family friend, the employee disclosed to the relative's son that the FBI was investigating the relative. The employee was dismissed for disclosing sensitive investigative information.
3. A Special Agent was arrested for possession of narcotics and drug paraphernalia. At the time of arrest, FBI/OPR had a pending inquiry involving allegations that the Agent had driven under the influence of alcohol. These allegations were based on information that the Agent had failed field sobriety tests, registered a blood alcohol level that was twice the legal limit, and had been verbally abusive to police officers. In addition, the Special Agent failed to report to the FBI that he was living with an individual with a history of illegal drug use who the Agent suspected was continuing to use illegal drugs. The Agent also did not report that police officers had responded to a call concerning a domestic disturbance in which the Agent was involved. The Agent falsified official time and attendance records. Finally, during a judicial hearing on a civil matter, the Agent created an appearance of impropriety by referring to the fact that he was employed by the FBI in such a way as to suggest that he was soliciting a favorable finding from the court based on his employment. The Special Agent was dismissed.
4. A probationary Special Agent harassed a former friend and engaged in insubordination by continuing to harass the individual after FBI supervisors ordered the agent to stop doing so. In addition, the Agent failed to report contact with law enforcement officers, misused an FBI vehicle, transported an unauthorized passenger in an FBI vehicle, made an unauthorized disclosure of FBI information, misused FBI telephones, falsified an FBI employment application, and lied under oath during the FBI/OPR inquiry. The probationary Special Agent was dismissed.
5. A Special Agent violated FBI regulations by investigating a complaint and accessing FBI databases without the approval of an FBI Supervisor. The Agent's actions were aggravated by the fact that the complaint involved a personal acquaintance. In addition, the Agent was untruthful when questioned about the conduct by the field office's Associate Division Counsel and then lied under oath and concealed information during the FBI/OPR inquiry. The Special Agent was dismissed.
6. A Special Agent engaged in unauthorized outside employment by establishing a commercial business with a friend. The Agent visited the business while on duty and falsified time and attendance records to reflect that she was performing official FBI duties while she actually was engaged in activities related to the business. The Agent misused an FBI vehicle by making unauthorized trips to the business in the vehicle and by transporting unauthorized individuals. The Agent was suspended without pay for 60 calendar days and placed on probation for one year.
Drug Enforcement Administration
Office of Professional Responsibility
Examples of Matters Investigated by DEA/OPR in Fiscal Year 1999 (12)
1. The FBI and DEA/OPR initiated an investigation into alleged kickbacks from private vendors who were providing equipment and services to a DEA office. The investigation revealed a lengthy criminal conspiracy to commit theft, fraud, embezzlement, and laundering of over $3 million of government funds. As part of their investigation, the FBI and DEA/OPR seized approximately 30 computers, examined over one million records, and identified over 30 DEA employees, including senior managers, supervisors, and technicians, who were involved in the conspiracy. The investigation, which is the most significant computer forensic case in DEA's history, resulted in the seizure of over $750,000 of property and assets, court-ordered restitution totaling approximately $3 million, and ten convictions. In addition, administrative action was taken against 25 DEA employees. Six of these employees were terminated or resigned, six were suspended without pay, and the remaining 13 received lesser discipline.
2. DEA/OPR received a complaint from an Assistant Special Agent in Charge (ASAC) that a Cooperating Defendant involved in a pending investigation had alleged that a Special Agent purchased a television from the Cooperating Defendant and still owed him a portion of the purchase price. DEA/OPR discovered evidence that the Special Agent violated DEA policy by driving the Cooperating Defendant in an official government vehicle to the Cooperating Defendant's home without being escorted by another agent and told the Cooperating Defendant that he should remove his property from the home so that it would not be subject to seizure and possible forfeiture. The Special Agent admitted to DEA/OPR that she purchased the television and also accepted two wall hangings from the Cooperating Defendant. The Special Agent was discharged.
3. DEA/OPR received allegations that a Supervisory Special Agent (SSA) had falsely represented in affidavits that the SSA was a state trooper before becoming a DEA agent. Upon initiating an investigation, DEA/OPR Inspectors found discrepancies in information provided by the SSA on his application for federal employment and subsequently determined that the SSA was a police officer, but not a state trooper, before joining DEA. They also found that the SSA had falsely represented on 12 occasions in federal affidavits, testimony, and depositions that he had been employed as a state trooper. The SSA was discharged and the Merit System Protection Board upheld the agency's decision to remove the SSA from federal service.
4. A DEA employee submitted a resignation letter alleging that he was resigning because a Special Agent had threatened him. An audio tape from the employee's telephone answering machine contained ten messages from the Special Agent threatening the employee. DEA/OPR referred the Special Agent for a Fitness for Duty Examination under DEA Suitability Review Protocol. During its investigation, DEA/OPR discovered that the Special Agent had sold DEA equipment for personal gain, removed other equipment from a DEA warehouse without completing a Receipt for Property form, sexually harassed another DEA employee, and made false statements to DEA/OPR during the investigation. The Special Agent was discharged.
5. DEA/OPR received allegations that two defendants had engaged in sexual intercourse while in the custody of a DEA Special Agent. DEA/OPR's investigation revealed that the two defendants were taken to a DEA office for a debriefing session attended by a federal prosecutor, the defendants' attorneys, and two DEA Special Agents. After the debriefing was concluded, the two defendants were left unattended in the interview room for approximately 15 minutes, during which time they engaged in sexual intercourse. The Special Agent told DEA/OPR that he was unaware of the defendants' sexual activity and that he had not suggested to the defendants that the meeting was an opportunity to engage in sexual activity. After the defendants corroborated the Special Agent's representations, the Special Agent was issued a letter of clearance.
6. The Office of Inspector General of a federal agency requested DEA/OPR's assistance in investigating unauthorized disclosures of information from DEA's subject tracking database, the Narcotics and Dangerous Drugs Information System (NADDIS), that had compromised the identity of a confidential informant. Inspectors found evidence that a DEA Special Agent had disclosed NADDIS information to a private investigator, a retired FBI Special Agent, who was running a criminal check on behalf of a client. The DEA Special Agent admitted that she had disclosed the information and was issued a letter of reprimand.
1. The number of allegations made exceeded the number of investigations opened because a single investigation may involve multiple allegations of misconduct. Return...
2. In this report, allegations are presented in more specific categories than in past annual reports. Return...
3. The allegations categorized as "other" included an alleged misrepresentation to the Department regarding the status of a plea agreement entered into with a target of an investigation, and an alleged violation of a specific written undertaking regarding the confidentiality of certain documents produced in response to a Civil Investigative Demand. Return...
4. In addition to the 11 investigations in which OPR found professional misconduct, there were 10 cases (16% of closed investigations involving attorneys) in which subject attorneys were found to have exercised poor judgment. These poor judgment findings were reported to Department supervisors as performance, rather than misconduct, issues. Return...
5. In fiscal year 1998, OPR found professional misconduct in 12 investigations, representing 15% of the 80 investigations completed that year involving attorney subjects. Return...
6. The attorney whose conduct was found to warrant a 14-day suspension later resigned from the Department after disciplinary action brought by state bar authorities resulted in a one-year suspension of his license to practice law. Return...
7. In order to protect the privacy of the Department attorneys and other individuals involved in the OPR investigations summarized, OPR has omitted names and identifying details from these examples. In addition, OPR has alternated use of male and female pronouns in these examples regardless of the gender of the individual involved. Return...
8. In order to protect the privacy of the Department employees and other individuals involved in the investigations summarized, OPR has omitted names and identifying details from these examples. In addition, OPR has alternated use of male and female pronouns in these examples regardless of the gender of the individual involved. Return...
9. These figures represent files designated as "PR" or professional responsibility matters. In addition, DEA/OPR reported that it opened 71 general files in fiscal year 1999. General files are opened when a preliminary review is necessary to determine if sufficient information warrants a PR investigation. Of the 71 general files opened in fiscal year 1999, eight were converted to PR investigations and are reflected in the number of PR investigations opened for the fiscal year. Return...
10. 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. Return...
11. Cases in which 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. Return...
12. In order to protect the privacy of the Department employees and other individuals involved in the investigations summarized, OPR has omitted names and identifying details from these examples. In addition, OPR has alternated use of male and female pronouns in these examples regardless of the gender of the individuals involved. Return...