Office of Professional Responsibility

Fiscal Year 1994 Annual Report









Office of Professional Responsibility

Fiscal Year 1994 Annual Report






Introduction

Jurisdiction and Functions

Significant Initiatives in FY 1994

Statistical Summary of OPR Activities in FY 1994

Examples of Matters Investigated by OPR in FY 1994

Federal Bureau of Investigation OPR

Significant Initiatives in FY 1994

Statistical Summary of FBI/OPR Activities in FY 1994

Examples of Matters Investigated by FBI/OPR in FY 1994

Drug Enforcement Administration OPR

Statistical Summary of DEA/OPR Activities in FY 1994

Examples of Matters Investigated by DEA/OPR During FY 1994

Conclusion

__________________________________________

Tables

Table 1. Sources of Misconduct Complaints
Table 2. Subject Matter of Misconduct Complaints Received in FY 1994 by Attorney/Non-Attorney
Table 3. Results of Attorney Misconduct Investigations
Table 4. Disposition of FBI/OPR Matters Closed in FY 1994
Table 5. Agent/Non-Agent Disciplinary Actions, FY 1994
Table 6. Disciplinary Actions Involving DEA Employees



Office of Professional Responsibility


Fiscal Year 1994 Annual Report


Introduction



This is the nineteenth annual report of the Office of Professional Responsibility of the U.S. Department of Justice. The Office was created by order of the Attorney General dated December 9, 1975, in order to ensure that "Departmental employees continue to perform their duties in accord with the professional standards expected of the Nation's principal law enforcement agency." This report is submitted pursuant to 28 C.F.R. § 0.39a(i)(3), which directs the head of the Office, the Counsel on Professional Responsibility, to report annually on the activities of the Office and the internal inspection units in certain components of the Department. The report covers fiscal year 1994 (October 1, 1993 - September 30, 1994).

Jurisdiction and Functions



The Office of Professional Responsibility (OPR) is responsible for investigating allegations of misconduct by Department of Justice employees in cases in which the allegations implicate the prosecutive, investigative or litigative functions of the Department.(1) In addition, the Office undertakes the investigation of other matters when requested or authorized to do so by the Attorney General or the Deputy Attorney General.

The results of OPR investigations are reported to appropriate management officials in the Department of Justice, who are responsible for proposing and implementing any disciplinary action which may be appropriate. In matters in which the findings may warrant the imposition of discipline against a Department attorney, OPR recommends a range of appropriate disciplinary actions pursuant to a policy implemented during the 1994 fiscal year. OPR's recommendation is not binding on the supervisory official with disciplinary authority over the attorney involved.

The Office regularly reviews case files and statistical data to identify any misconduct trends or systemic problems in the programs and operations of the Department and its components. The Office also oversees on behalf of the Attorney General the operations of the Offices of Professional Responsibility in the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA). Those offices are responsible for the investigation of allegations of misconduct by employees of the FBI and DEA, respectively. OPR oversees the operations of the Offices of Professional Responsibility in the FBI and DEA through the receipt of periodic reports and frequent contacts with personnel in those offices.(2)

The Office increased its attorney staffing level during fiscal year 1994 with the addition of four attorneys. This brought the Office's attorney complement to thirteen. Additional staffing was authorized for fiscal year 1995.

Significant Initiatives in Fiscal Year 1994



During fiscal year 1994, OPR continued to implement changes in its operations in response to policy directives from the Attorney General and the Deputy Attorney General designed to focus the Office's mission on the investigation of allegations of attorney misconduct and related allegations involving law enforcement personnel.

Changes in case tracking and reporting criteria: Significant revisions were made during fiscal year 1994 to OPR's case tracking and reporting methodology. Under the revised methodology, OPR no longer carries matters in an open status when they are referred to the Office of Inspector General or other components of the Department for investigation and when OPR is simply monitoring the matter or awaiting notification of the results of investigation. These changes, which are discussed further below, significantly impacted the statistical data for the 1994 fiscal year.

Completion of Investigation Following Resignation or Retirement of Attorney: During the year, the Office also implemented a new policy with respect to attorney matters in which the subject of the allegations resigns or retires prior to the completion of the investigation. Previously, OPR investigations were with very few exceptions closed if the attorney involved resigned or retired prior to completion of the inquiry. Under the policy implemented in fiscal year 1994, OPR will complete its investigation in such cases unless the Deputy Attorney General determines that no substantial Department interest is furthered by continuing the investigation.

Public Disclosure of OPR Findings: During the fiscal year, the Department implemented a policy providing for the public disclosure of the results of OPR investigations in certain cases involving allegations of attorney misconduct.(3) Under the policy, the Department will disclose the results of certain OPR investigations, including those involving a finding of intentional misconduct or involving an allegation of serious professional misconduct in which there has been a demonstration of public interest, where the public interest in disclosure outweighs the privacy interest of the attorney and any law enforcement interests. Disclosure can also be made at the request of the Department attorney who was the subject of the allegations when disclosure would not compromise law enforcement interests. Pursuant to the policy, the Deputy Attorney General issued two public disclosure reports in fiscal year 1994.

Statistical Summary of OPR Activities in Fiscal Year 1994



As noted above, in fiscal year 1994 there were significant revisions to OPR's case tracking and reporting methodology. The revisions were the result of a change in management directives. Pursuant to a directive from former Deputy Attorney General Arnold Burns, OPR previously included for case tracking purposes all matters setting out allegations of misconduct against Department employees in which OPR had a role in the investigation. This included matters which OPR attorneys investigated themselves, as well as other matters investigated by other Department components in which OPR provided various degrees of assistance. These activities included matters in which OPR directly supervised or monitored an inspection unit investigation, matters in which OPR conducted joint investigations with an inspection unit, matters in which OPR provided prosecutive opinions and legal advice on the use of investigative techniques such as consensual monitoring of telephone conversations, matters in which OPR reviewed the results of inquiries by state bar licensing authorities into the conduct of Department attorneys, and matters in which OPR reviewed attorney applicant background investigation reports that contained misconduct issues and provided advice on the applicant's suitability. The purpose was to attempt to capture in the case tracking system OPR's workload and the variety of activities in which it was engaged.

As a result of a directive from former Deputy Attorney General Heymann, OPR now generally counts for case tracking purposes only matters which are directly investigated by OPR attorneys. Consequently, use of the revised case tracking system has resulted in a substantial decrease in the number of matters opened by OPR in fiscal year 1994 as compared to prior years. Conversion to the revised methodology also resulted in an unusually large number of case closings for the fiscal year. An additional aspect of Deputy Attorney General Heymann's directive was the assignment in January of 1994 of 36 senior Department attorneys to OPR on a part-time basis. Each attorney was assigned an average of four matters to investigate under the supervision and guidance of OPR. The program continued through the 1994 fiscal year and contributed to the number of matters closed during the period.

Matters Opened in Fiscal Year 1994: In fiscal year 1994, the Office opened 263 matters involving allegations of misconduct against Department of Justice employees. The number of matters opened represented a 62% decrease from the 685 matters opened in fiscal year 1993. An overwhelming portion of the decrease was attributable to revisions in case reporting methodology referred to above. In addition, the changes to OPR's jurisdiction resulting from AG Order No. 1638-92 also had an impact on the number of new matters opened.

Changes in case reporting and jurisdiction also impacted on the number of attorney matters opened. During fiscal year 1994, OPR opened 211 matters involving allegations of misconduct against Department attorneys. The number of attorney matters initiated represented a 33% decrease from the 315 such matters opened in fiscal year 1993. However, only a portion of the decrease could be attributed to case reporting and jurisdictional changes and preliminary figures on attorney matters for fiscal year 1995 appear to be generally consistent with the fiscal year 1994 figures. Consequently, we believe that the unusually high number of attorney matters received in fiscal year 1993 was an anomaly.

Overall, the number of complaints (involving both attorneys and non-attorneys) received from various sources is set out in table 1, below. The percentage of complaints falling into each source category is also provided.



Table 1. Sources of Misconduct Complaints
Sources of Misconduct Complaints
Source
 Number of Complaints Percent of Total
Private parties 87 33%
DOJ components & employees 64 24%
Private attorneys 37(4) 14%
Judicial sources 26 10%
Congressional referrals 14 5%
Other agencies (incl. state) 14 5%
Inmates/detainees 12 5%
Other (including anonymous) 9 4%


The types of allegations in complaints of misconduct received by OPR in fiscal year 1994 are reflected in table 2, below. The table includes the number of complaints involving Department attorneys and non-attorney employees in each category.

Table 2. Subject Matter of Misconduct Complaints Received in FY 1994 by Attorney/Non-Attorney

Subject Matter of Misconduct Complaints Received in FY 1994

by Attorney/Non-Attorney
 
Number of Complaints
Alleged Misconduct
Complaints Against

Attorneys

Complaints Against Non-Attorneys Total
Abuse of prosecutorial/investigative authority 116 7 123
Criminality 24 26 50
Unprofessional or unethical behavior 28 3 31
Conflict of interest 14 1 15
Unauthorized release of information (other than grand jury or classified information) 10 1 11
Violation of civil or constitutional rights, including discrimination 5 3 8
Other (incl. negligence, alcohol-related matters, failure to file tax returns, Hatch Act violations) 14 11 25




Matters Closed in Fiscal Year 1994: In fiscal year 1994, OPR closed a total of 1,411 matters. This figure included 628 matters closed administratively which were being handled by the Office of the Inspector General and monitored by OPR. Of the 783 remaining matters, 376 were non-attorney matters and 407 involved misconduct allegations against Department attorneys.

Allegations of misconduct were substantiated in 22, or about 5% of the 407 attorney matters closed during the year. Disciplinary actions were taken against a total of 13 attorney employees. In addition, in six matters involving substantiated allegations, the attorney employee resigned or retired prior to the imposition of any discipline. In the remaining three attorney matters, no disciplinary action was deemed appropriate.

The 22 substantiated attorney misconduct matters represented a significant increase over the seven such matters reported in fiscal year 1993. The increase was partially attributable to the greater number of attorney matters closed during fiscal year 1994 (407 versus 243). A comparison of the results of attorney misconduct matters in fiscal years 1993 and 1994 is set out in table 3, below.

Table 3. Results of Attorney Misconduct Investigations
Results of Attorney Misconduct Investigations
No. of Matters

Closed
No. of Matters

Where Allegations

Substantiated
Percentage of

Matters Substantiated
1993
 243 7 2.9%
1994
 407 22 5.4%




Examples of Matters Investigated by OPR in FY 1994

(5)

A. Matters in which allegations were substantiated:



Public Criticism of the Court: OPR investigated allegations that a DOJ attorney made a comment to the press about his dissatisfaction with the sentence which the court had imposed on a convicted defendant. The DOJ attorney admitted to OPR that he had made the statement to the press, but contended that the statement did not impugn the integrity of the court. The DOJ attorney further argued that he had a First Amendment right to make the statement, so long as it was made after the conclusion of the case and outside the courtroom. OPR was not persuaded by the DOJ attorney's contentions and concluded that the allegations were substantiated. The DOJ attorney was given a formal letter of reprimand.

Alerting a Friend to an On-Going Investigation: OPR investigated allegations that a DOJ attorney had alerted a friend and former colleague that he was the subject of a criminal investigation. OPR found that the DOJ attorney had come to the conclusion that the case against the individual was weak, and had contacted him in an effort to resolve the matter by advising him to discontinue certain actions. However, the DOJ attorney had failed to advise the investigative agency of his analysis and decision and, therefore, it appeared that he was acting in bad faith. OPR concluded that the DOJ attorney had exercised extremely bad judgment in creating an appearance of wrongdoing. The DOJ attorney resigned prior to any disciplinary action being taken.

Improper Use of Frequent Flyer Miles: OPR investigated allegations that a DOJ attorney had been involved in a scheme to fraudulently obtain frequent flier miles and that he also had improperly used frequent flier miles earned while on government travel. OPR found that the DOJ attorney had not fraudulently obtained frequent flyer miles but used government-earned mileage awards improperly. OPR referred the matter to the DOJ attorney's division which suspended him without pay for two days.

Failure to Advise Court of Critical Information Related to Plea: OPR investigated allegations that a DOJ attorney had failed to advise the court that a particular plea agreement was conditional and that the defendant's right to appeal the denial of a motion to suppress was to be preserved. As a result, the court of appeals refused to hear the defendant's appeal. OPR determined that both the DOJ attorney and the defense attorney had failed to properly advise the court of the conditional nature of the plea. OPR also determined that the DOJ attorney's failure was not a result of intentional misconduct, but was negligent. OPR referred the matter to the DOJ attorney's supervisor to address the negligence issue. The DOJ attorney resigned prior to the imposition of any disciplinary action.

Submitting False Travel Voucher: OPR investigated allegations that a DOJ attorney had submitted a false travel voucher and had been untruthful when questioned about the voucher by his supervisor. The voucher at issue contained an inconsistency: the rental car receipt indicated that the DOJ attorney had returned on one day, while he claimed in the voucher that he had not returned until the following day. When questioned by his supervisor, the DOJ attorney admitted that not all the information was accurate because the voucher was a "constructive voucher" which he claimed demonstrated the authorized, rather than actual, period of travel. The DOJ attorney took the position that it made no difference whether he returned from his trip when the voucher indicated or at an earlier time. The supervisor informed the DOJ attorney that his position was incorrect because, if he returned a day earlier, he was required to attend work the next day. Since he had not done so, he would be considered AWOL and would not be paid. Shortly thereafter, the DOJ attorney submitted an amended travel voucher changing the start date of the trip at issue but leaving unchanged the date of return.

In the course of OPR's investigation, the DOJ attorney claimed that he had not lied to his supervisor but explained that the travel voucher was "constructive on both ends." He also claimed that he told his supervisor that he would not amend the voucher return date because, even though he had returned earlier, he believed he was entitled to be paid for a travel day and, if that required him to submit a "constructive" travel voucher, he would do so. The DOJ attorney claimed that the supervisor had discriminated against him in the past and was "hassling" him about the travel voucher. OPR found that the DOJ attorney returned a day earlier than his travel voucher reflected and that he submitted a false travel voucher after being confronted by his supervisor. The fraudulent travel voucher resulted in an overpayment to the DOJ attorney in the amount of $45.54. OPR concluded that the DOJ attorney had lied to OPR, as well as to his supervisor. As a result of his misconduct, the DOJ attorney was suspended without pay for one week.

Presenting Improper Argument to the Jury: OPR investigated whether a DOJ attorney engaged in misconduct by arguing to the jury that it should not be misled by thinking that the government could have called a certain witness to testify. OPR concluded that the DOJ attorney had credible reasons for thinking that he might not have been able to call the witness. However, OPR also found that his argument to the jury implied something more, namely, that the government was definitively unable to call the witness. Accordingly, OPR concluded that the remark to the jury constituted misconduct, but that there was insufficient evidence to conclude that the misconduct was intentional because of the DOJ attorney's misunderstanding, due to inexperience, of what kinds of arguments to a jury are permissible. Based on OPR's report, the DOJ attorney was given a letter of reprimand. Subsequently, the DOJ attorney voluntarily resigned.

Improper Use of DOJ Position: OPR investigated allegations that a DOJ attorney prepared another person's application for a visa with a cover memorandum on DOJ stationery. The DOJ attorney also included one of his DOJ business cards in the submission. The foreign individual was seeking a visa in order to enter the country to perform certain functions for a non-profit organization. The DOJ attorney told OPR that he did not intend to gain preferential treatment for the visa applicant by identifying himself as a DOJ attorney, but believed his actions were consistent with what DOJ employees are permitted to do on behalf of non-profit organizations. OPR concluded that the actions of the DOJ attorney were improper, but not intentionally so. OPR reported its findings to the employee's supervisors, and the employee was counselled.

Improper Use of DOJ Resources for Personal Business: OPR investigated allegations that a DOJ attorney had improperly used DOJ office equipment and personnel for personal matters and had been absent from work, without taking leave, to tend to personal matters. OPR concluded that the DOJ attorney had used certain office equipment for some personal business, but had not directed any other employees to do any of his personal work. OPR also found that the DOJ attorney had taken short periods of annual leave during the time in question for his absences. OPR concluded that the DOJ attorney's conduct constituted a minor infraction and he was counselled by a supervisor.

Improper Use of FTS Line for Personal Calls: OPR investigated allegations that a DOJ attorney had used the government's FTS telephone line to make numerous personal long distance calls to his children over a ten-year period. OPR determined that records existed to confirm only those calls that had been made during the last two of the ten years. OPR also determined that the calls were improper under applicable regulations, but not intentionally so because of a 1988 Justice Management Division memorandum which appeared to permit brief daily calls, even if long distance, to children at home. OPR referred its findings to the DOJ attorney's supervisor with the recommendation that the DOJ attorney be counselled against any such further improper use of the FTS line and that he be required to reimburse the government for the approximately 160 calls which were verified to have been made, plus a $10.00 administrative charge per call. OPR has confirmed with the DOJ attorney's supervisor that he had paid the required restitution, as recommended by OPR.

Unprofessional Behavior: A private attorney alleged that a DOJ attorney engaged in unprofessional behavior in connection with discussions on a stipulation agreement involving the use of collateral in a bankruptcy proceeding. The complainant alleged that the Department attorney made comments of a personal, unprofessional, and derogatory nature to associates of the complainant's law firm and others on two separate occasions. It was claimed that the DOJ attorney's remarks included statements that the complainant did not know what he was doing, that he was an "idiot," that he was untrustworthy, and that he was an "asshole."

The investigation substantiated that the DOJ attorney had, indeed, made the disparaging remarks. It was also determined that there was an earlier incident involving unprofessional conduct on the part of the DOJ attorney. The DOJ attorney received a written reprimand.

Insubordination and Issues of Credibility: OPR investigated allegations that a DOJ attorney had engaged in conduct on several occasions that called into question his truthfulness and integrity, such as: (i) providing an untruthful affidavit and pleading in a federal criminal case; (ii) failing to be candid about the affidavit and pleading in a conversation with a supervising DOJ attorney; (iii) making misrepresentations to the supervising DOJ attorney and another DOJ attorney regarding another matter; (iv) being insubordinate; and (v) disclosing official information to the media without being authorized to do so. OPR did not find sufficient evidence to support the conclusion that the DOJ attorney had engaged in the alleged credibility-related misconduct or to substantiate the leak allegation. Furthermore, OPR found reason to question the bona fides of the allegations and the motivation of the supervising attorney in referring the allegations to OPR. Although the DOJ attorney admitted to being insubordinate to the supervising DOJ attorney, OPR concluded that under the circumstances the conduct did not warrant any disciplinary action.

Serving as Counsel for Relative in a Criminal Matter: OPR investigated allegations that a DOJ attorney had engaged in misconduct by representing a defendant in a state criminal case. It was alleged that the DOJ attorney had entered an appearance on behalf of the defendant and had used his position as a DOJ attorney to advance the defendant's case. It was also alleged that, upon hearing that the local prosecutor would not accept the defendant's proposed plea agreement, the DOJ attorney stated that he would try the case. The DOJ attorney told OPR that the defendant was a member of the DOJ attorney's family. The DOJ attorney admitted that he had contacted the local prosecutor to discuss a possible plea and the merits of a certain defense. The DOJ attorney also told OPR that he had called the court and spoken with the judge to inquire about how the defendant could enter a plea. The DOJ attorney also told OPR that he had made clear to the judge, the local prosecutor and the defendant that he was not representing the defendant. However, the DOJ attorney said that he viewed his actions in the nature of pro bono work.

OPR found that it was not unreasonable for the local prosecutor to conclude that the DOJ attorney was acting as the defendant's legal representative since many of his actions were consistent with those typically performed by a defendant's attorney. Although OPR did not consider the DOJ attorney's actions to constitute intentional misconduct, OPR recommended that he be counselled regarding the regulations governing pro bono work by DOJ attorneys.

B. Matters in which allegations were found to be unsubstantiated:



Inappropriate Comments to the Grand Jury: OPR investigated allegations that a DOJ attorney had mistreated two witnesses while questioning them and had made inappropriate comments about the witnesses to the grand jury when the witnesses were not present. It was also alleged that the DOJ attorney acted unprofessionally by criticizing his support personnel several times in front of the grand jury and by being consistently late, without excuse or apology. OPR concluded that the DOJ attorney's questioning of the two witnesses, who were clearly hostile to the government, was competent and professional. OPR also found that the DOJ attorney had made some gratuitous, plainly inadvisable comments to the grand jury during breaks about witnesses and support personnel. However, OPR concluded that those remarks were not intended to inflame or prejudice the grand jury in matters before them and did not constitute misconduct. Through its investigation and interviews with a number of the grand jurors, OPR was struck by the level of hostility expressed by the grand jurors toward the DOJ attorney. OPR identified a number of factors that contributed to the grand jurors' general dissatisfaction, including (i) frustration by the inefficient use of their time; (ii) the lack of any mechanism in the district for the grand jurors to express their frustrations with DOJ attorneys who appeared before them and/or to ask questions; (iii) the grand jurors' dislike of the DOJ attorney's personality, which may have been rooted in certain prejudices. OPR recommended that the district's grand jury coordinator be assigned the role of assisting the grand jury on a regular basis in resolving scheduling problems and responding to other questions and concerns as they arose.

Inappropriate Behavior During Trial: In the course of a discrimination case, the defendant's attorney alleged that a DOJ attorney made a specific, inappropriate, offensive and discriminatory comment to him in a telephone conversation. The complainant further alleged that the DOJ attorney behaved in a dictatorial and bullying manner during the litigation, trying to force the defendant into a settlement. The complainant also alleged that the DOJ attorney may have violated the Hatch Act by writing speeches for a politician while employed by the Department. The DOJ attorney admitted making the specific comment, but in an entirely different context than that alleged by the complainant. As a result of his admission, the DOJ attorney's supervisors removed him from the case, and officially reprimanded him. The complainant was informed that the Department had taken appropriate remedial action and had reassigned the litigation.

The complainant was not satisfied by the Department's response and claimed that the Department was "covering up" the matter. The complainant demanded that the Department hold a public hearing. Those allegations were referred to OPR and OPR conducted an inquiry into both the underlying allegations regarding the actions of the DOJ attorney in the litigation, and the allegation of a "cover-up" by the Department. In addition, in the course of OPR's investigation, the DOJ attorney's supervisor alleged that the DOJ attorney lied in his written response to OPR by inaccurately reporting to OPR that he had advised his several reviewers and supervisors of his telephone conversation with the complainant, including the alleged discriminatory comment, immediately after it took place. OPR investigated that allegation as well.

While there was no dispute that the DOJ attorney had made the alleged discriminatory comment during his telephone conversation with the complainant, OPR found no evidence to corroborate either the complainant's or the DOJ attorney's account of the context in which the statement was made. However, OPR found the DOJ attorney's version of the conversation to be the more plausible, and found the DOJ attorney to be entirely credible during OPR's interview of him. OPR found the complainant's allegation that the DOJ attorney had acted in a bullying and dictatorial manner to be unsubstantiated in light of the failure of the complainant, in his interview with OPR, to provide sufficient evidence to support his allegation. Moreover, the complainant provided no independent corroboration to support his allegation that the DOJ attorney had participated in political activities and the DOJ attorney denied having had any involvement in political activities while employed by the Department. Therefore, OPR concluded that the complainant's allegations that the DOJ attorney engaged in misconduct were unsubstantiated. OPR also concluded that the Department had not engaged in a "cover-up," but found that the Department had responded promptly and appropriately to the complainant's allegations. Finally, OPR found the allegation that the DOJ attorney had lied in his written submission to OPR to be unsubstantiated, finding as credible the DOJ attorney's statement to OPR that he notified his supervisors and reviewers of his conversation with the complainant shortly after it occurred.

Instructing an Agent to Alter Reports: OPR investigated allegations made by a law enforcement agent that a DOJ attorney had instructed the agent to alter a report of an interview to include statements that the witness had not made and directed the agent to selectively document pretrial interviews of witnesses, in order to avoid the creation of potentially exculpatory statements. During the trial, the DOJ attorney requested that the agent be replaced because of a personality conflict. OPR concluded that the allegations were wholly without merit. Moreover, OPR concluded that the fact that the agent would make such baseless allegations raised serious management concerns about his judgment, bias and ability to perform his duties. OPR referred the matter to the agent's supervisors for appropriate action.

Failure to Advise Court of Lack of Any Legal Basis for Indictment: OPR investigated findings of a court of appeals that the government had been derelict in failing to inform the district court that there was no case law supporting charges in an indictment. The court of appeals vacated and remanded the district court's decision denying the defendant's presentence motion to, among other things, dismiss certain counts of an indictment on the grounds that the counts failed to charge an offense. The defendant, who had pled guilty, also moved to withdraw his guilty plea. In a case of first impression, the appellate court agreed that the statute in question did not cover the facts at issue and reversed. The court of appeals then found that, although defense counsel was late in discovering that his client had been wrongfully convicted, the government should have informed the district court of the lack of legal authority for the indictment.

OPR concluded that the DOJ attorney handling the case had engaged in no misconduct. OPR found that the district court had denied the defendant's motion without awaiting the government's response. In addition, the defendant's motion had informed the district court that there was no case law supporting the application of the statute to the facts at issue. Furthermore, on appeal, the government informed the court of appeals that there was no reported decision directly on point. Based on those facts and circumstances, OPR found that the DOJ attorney was not remiss or derelict in any way in failing to inform the district court that there was no case law supporting the charges in question.

Representing Family Member at Deposition in Private Litigation: OPR investigated allegations that a DOJ attorney improperly, and on DOJ time, was acting as counsel to a former employee of a corporation who was deposed in connection with a lawsuit brought against the company by a competitor. The complainant asked whether the DOJ attorney was allowed to represent non-government clients, and whether he was permitted to use the authority and facilities of DOJ to do so. The complainant also asserted that the former employee and the DOJ attorney had disclosed confidential company information and that the former employee had attempted, "presumably on the advice of" the DOJ attorney, to persuade other employees to breach their employment agreements. During the inquiry, OPR learned that the former employee was the spouse of the DOJ attorney. OPR also learned that the DOJ attorney had taken annual leave in order to attend the deposition in question. OPR concluded that, since the United States was not a party to the lawsuit, the actions of the DOJ attorney were permitted by DOJ's standards of conduct. OPR also determined that the allegations that the DOJ attorney had breached the company's confidentiality and advised his spouse to encourage others to breach their employment agreements were unsupported.

Unauthorized Disclosure to Defense Counsel: OPR investigated allegations that a DOJ attorney had made unauthorized disclosures of investigative information to a defense attorney who allegedly was a friend of the DOJ attorney. The disclosures allegedly included the names of individuals under investigation and the identities of the investigators. The complainants stated that the DOJ attorney acknowledged that the defense attorney was a close friend of his, and pointed out that the defense attorney often represented individuals who were subjects of investigations which he supervised. Through its investigation, OPR established that there was no evidence that the DOJ attorney had made improper disclosures of information. OPR found that the limited discussions between the defense attorney and the DOJ attorney were appropriate in the investigative context. OPR also noted, and reported to the DOJ attorney's supervisor, that an extremely distrustful and contentious relationship existed between the DOJ attorney and the investigators, and that that antagonism was adversely affecting law enforcement efforts.

Failure to Disclose Newly-Discovered Brady Material: OPR investigated an allegation that a DOJ attorney had failed to disclose Brady material in the trial of a defendant on drug distribution charges. A sibling of the defendant had also been arrested and had pled guilty. As part of the government's case, an agent was called to testify that a search had been made for tax returns filed by the defendant or his sibling and that there was no record that either of them had ever filed tax returns. During a break just prior to closing arguments, the DOJ attorney mentioned the testimony of the agent to another investigative officer. That officer disagreed with the agent's testimony and told the DOJ attorney that he had seen two tax returns filed by the defendant's sibling during the investigation of another case. The DOJ attorney telephoned the IRS and asked for verification of the information provided by the officer. According to the DOJ attorney, he was skeptical of the officer's statements because the original search was believed to be accurate and, based on his prior experience with the agent, he knew the agent to be highly reliable. On the other hand, the DOJ attorney knew nothing about the officer who was the source of the contrary report. The DOJ attorney decided not to advise the court or defense counsel of the officer's claims and proceeded to make his closing argument wherein he referred to the agent's testimony that neither the defendant nor his sibling had filed tax returns. The defendant was convicted. The following day, the DOJ attorney learned that the defendant's sibling had indeed filed tax returns. He immediately telephoned the defendant's attorney and the court and advised them of the facts. The defendant's attorney filed a motion for a new trial based on new evidence. The court denied the motion, finding that the tax returns were not material to the defendant's guilt or innocence.

OPR concluded that the DOJ attorney did not act unethically in deciding not to disclose the officer's unconfirmed report to the defense or the court prior to the closing argument. OPR

found that the DOJ attorney did not know whether the officer's report was reliable or whether the tax returns he claimed to have seen had actually been filed with the IRS. On the other hand, the DOJ attorney had compelling evidence of non-filing based on the original search and the sworn testimony of a trusted IRS agent. In addition, OPR found that the DOJ attorney took prompt corrective action when he learned that the defendant's sibling had in fact filed tax returns. Under the circumstances, OPR concluded that the DOJ attorney committed no misconduct.



Operations of Federal Bureau of Investigation OPR
and Drug Enforcement Administration OPR



In addition to the functions described in the preceding sections, OPR assists and oversees the operations of the Offices of Professional Responsibility in the Federal Bureau of Investigation and the Drug Enforcement Administration. Consistent with 28 C.F.R. § 0.39a(i)(3), which calls for the Counsel to prepare an annual report "reviewing and evaluating the activities of internal inspection units" in the Department of Justice, this section summarizes the operations of and significant developments in those offices in fiscal year 1994.



Federal Bureau of Investigation,

Office of Professional Responsibility



During fiscal year 1994, the Federal Bureau of Investigation's Office of Professional Responsibility (FBI/OPR) was responsible for the investigation of allegations of misconduct against the FBI's 23,319 employees, including 9,779 Special Agents. The office is part of the Bureau's Inspection Division and reports to FBI leadership through the Assistant Director of the Inspection Division. In fiscal year 1994 the office's professional staff consisted of a Deputy Assistant Director, a Unit Chief, and six Supervisory Special Agents. Two additional Supervisory Special Agent positions were added to the FBI/OPR staff at the beginning of the fiscal year, bringing the complement to eight, but by the end of the fiscal year efforts to reassign agents from headquarters to the field had again reduced the staff to six Supervisory Special Agents. A portion of the matters handled by FBI/OPR are referred to the field for investigation under FBI/OPR supervision.

Significant Initiatives in Fiscal Year 1994: Two policy changes adopted by FBI Director Louis J. Freeh during fiscal year 1994 had notable impact on the FBI's Office of Professional Responsibility. First, in a policy directive dated January 3, 1994, the Director announced a "bright line" policy with respect to the standards of conduct applicable to all FBI employees. The policy reaffirmed that the FBI's continued effectiveness depended upon maintaining high standards of integrity and provided that misconduct will be promptly investigated and punished. The directive specified that dismissal from the FBI would be sought for such offenses as lying under oath, failure to cooperate during an administrative inquiry, voucher fraud, theft of government funds or property, material falsification, and unauthorized disclosure of information, and that the penalties for other types of misconduct would also be increased.

On February 23, 1994, the Director announced a major policy change delegating to senior managers in the field and at FBI headquarters the responsibility for adjudicating many cases of misconduct which according to FBI precedent call for a penalty of suspension of 14 days or less. This initiative was designed to minimize the time required to process disciplinary matters. Previously all such matters were adjudicated centrally by the Administrative Summary Unit in the Personnel Division (ASU/PD). FBI/OPR retained the responsibility of conducting or overseeing the investigation of allegations of serious misconduct.

The delegation order identified 19 categories of offenses that will continue to be adjudicated solely by ASU/PD, such as discriminatory conduct (including 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. FBI/OPR reviews completed investigative files for sufficiency and completeness in all matters. The office also reviews investigative files to determine whether the matter involves an offense which requires referral to ASU/PD for adjudication.

The delegation initiative has affected FBI/OPR in two principal ways. First, it has increased FBI/OPR's advisory function since managers adjudicating misconduct cases seek guidance on procedures and precedent from FBI/OPR. In addition, the delegation has required FBI/OPR to take on a new, evaluative role by assessing the penalty likely to be applied to an offense. In some cases, specific penalties are prescribed by statute or internal policy. In other cases, the determination is made by referring to FBI disciplinary case precedent. A list of 274 cases categorized by type of allegation and nature of penalty was distributed with the delegation order as a guide. If FBI/OPR concludes that a matter can be appropriately addressed by a letter of censure or a suspension of 14 days or less, the adjudication is made by a manager under the delegation. If the misconduct calls for dismissal, demotion or suspension for more than 14 days, the case must be adjudicated by the Administrative Summary Unit/Personnel Division.

Statistical Summary of FBI/OPR Activities in Fiscal Year 1994: In fiscal year 1994, FBI/OPR reported that it opened 535 matters involving allegations of misconduct against FBI employees. This number represented an increase of only 4.5% over the number of allegations received in fiscal year 1993. The office closed 580 matters (an increase of 23.7% over fiscal year 1993), and 408 matters were pending at the end of the reporting period.

While the total number of allegations increased only slightly, FBI/OPR reported a marked increase over fiscal year 1993 in the number of allegations in certain categories. For example, FBI/OPR received 81 allegations of unauthorized disclosure of information in fiscal year 1994 versus only 12 such allegations in fiscal year 1993. Drug-related allegations increased from 11 in fiscal year 1993 to 28 in fiscal year 1994. These increases may be the result of the increased emphasis placed on reporting of misconduct allegations under the "bright line" policy, as well as more stringent scrutiny of employees' reports of pre-employment drug use.

Types of Allegations: FBI/OPR matters opened during fiscal year 1994 involved a wide variety of allegations. The largest number of matters was categorized as allegations of unprofessional conduct. This category, which accounted for 131 allegations against Special Agents and 31 allegations against other employees, encompasses a wide variety of alleged misconduct from complaints of discrimination to use of improper management methods. A significant number of matters also involved allegations of unauthorized disclosure of information, misuse of position, drug abuse or drug-related violations, and misuse of government vehicles.

During fiscal year 1994, 108 employees of the FBI became the subjects of federal or local law enforcement investigations. Fifty-eight employees were arrested for violations of criminal or traffic law. Seventeen of these employees were arrested for driving while intoxicated (DWI)/driving under the influence (DUI), and one was arrested after a high speed chase. The remaining 40 employees were arrested on a variety of criminal charges including assault/ battery, shoplifting, and disorderly conduct.

Disposition of FBI/OPR Matters: Of the 580 matters reported closed by FBI/OPR in fiscal year 1994, 145 matters were closed administratively. This number included 43 cases in which the subject employee resigned and 22 cases in which the subject employee retired prior to conclusion of investigative activity or imposition of discipline. In addition, 80 cases were administratively closed because the complaints were withdrawn, investigation revealed that they were baseless, or for similar reasons.

The remaining 435 cases closed by FBI/OPR in fiscal year 1994 were adjudicated either by ASU/PD (399 cases) or by Field and Division managers under the delegation order (36 cases). Allegations of misconduct were substantiated in 352 of the cases closed by FBI/OPR in fiscal year 1994. Table 4 shows the disposition of matters closed by FBI/OPR in fiscal year 1994.





Table 4. Disposition of FBI/OPR Matters Closed in FY 1994.
Disposition of FBI/OPR Matters Closed in FY 1994
Closed Administratively by FBI/OPR
Subject resigned 43
Subject retired 22
Allegations found to be baseless,
withdrawn, or closed for other reasons		 80
Subtotal: 145
Adjudicated by Field/Division Managers 36
Adjudicated by ASU/PD 399
Subtotal: 435
Total: 580






FBI/OPR reported that a total of 461 disciplinary actions resulted from cases investigated by the office in fiscal year 1994. This number exceeds the number of cases adjudicated in fiscal year 1994 because some matters involved more than one employee. In addition, some employees received more than one form of discipline, e.g., a suspension and a period of probation. As a result of misconduct substantiated by FBI/OPR investigations, 232 employees received letters of censure; 91 were placed on probation; 104 were suspended without pay; 2 were demoted; and 32 were dismissed from their positions. In addition, 149 other corrective actions such as oral reprimands, counselling or additional training were taken as a result of FBI/OPR investigations. Table 5 shows the number of disciplinary actions of each type that involved Special Agents and other FBI employees.







Table 5. Agent/Non-Agent Disciplinary Actions, FY 1994
Agent/Non-Agent Disciplinary Actions, FY 1994(6)
Type of Action Special Agents Non-Agents Total
Letters of censure 138 94 232
Placed on probation 49 42 91
Suspensions 66 38 104
Demotions 2 0 2
Dismissals 6 26 32
Total: 261 200 461




Examples of Matters Investigated by FBI/OPR in Fiscal Year 1994:



Theft of Evidence and Drug Trafficking: The FBI initiated a drug trafficking investigation aimed at identifying the person or persons who were attempting to sell heroin to several individuals already under investigation by the FBI because of their drug trafficking activities. As a result of the investigation, an agent was identified, and subsequently determined to have removed heroin and cocaine from an FBI evidence control center, which he then attempted to sell to drug traffickers. The agent identified the drug traffickers through internal FBI records and mailed them heroin samples and offers to sell the drug to them. The agent was confronted with the results of the investigation and confessed to having stolen the heroin from the evidence control room. He was subsequently dismissed from the rolls of the FBI, arrested, and charged with conspiracy to distribute heroin. The agent was sentenced to 300 months incarceration, fined $2,500 plus a special assessment of $250, and given 5 years supervised probation.

Driving Under the Influence of Alcohol: An FBI agent driving a government vehicle late at night struck and killed a pedestrian walking along the side of the road. Upon arriving at his residence, the agent called 911 and reported hitting "something or someone" with his vehicle. Police officers responding to the SA's residence detected the odor of alcohol and requested the SA take a "breathalizer" test, which he refused. Other responding officers located a man's body in the vicinity of the incident reported by the agent. A "six-pack" of beer was located beside the victim. The agent was arrested by the police officers and charged with driving under the influence of alcohol, failure to drive in the designated lane, and vehicular homicide. He retired prior to initiation of disciplinary action.

Theft of Property: FBI/OPR initiated an investigation into the unexplained disappearance of over $2,000 in cash from an evidence vault. Early investigation focused on the persons with access to the vault. After exhausting other logical investigative steps, the principal and back-up evidence control technicians were administered voluntary polygraph examinations. The principal evidence control technician showed deception in responding to questions concerning the missing money. During a subsequent polygraph examination, the technician confessed to stealing the missing money and resigned from the FBI. The case was referred to the U.S. Attorney's Office. The former employee agreed to make full restitution, pled guilty to one misdemeanor count of theft of government property, and was sentenced to probation.

Report of Improper Gratuities: The FBI received an anonymous letter alleging that an agent was living in a home provided by an FBI vendor and that the agent and other FBI employees had accepted an expensive dinner from a businessman in appreciation for their work on a case. The investigation determined that the agent's living arrangement was not improper, in that the owner of the residence was a personal friend who had no connection to the FBI. No administrative action was taken against the agent on those grounds. However, the investigation also determined that the agents and employees who attended the dinner exercised poor judgment in accepting the invitation without first consulting with an FBI ethics officer. The agents involved received disciplinary actions ranging from counseling on the ethical prohibition on accepting gratuities for the nonsupervisory staff to a letter of censure for the highest ranking supervisor present at the dinner.

Suspected Alcohol Abuse: An agent was requested by an airline ground supervisor to surrender his weapon to the captain of a commercial airliner and was removed from the flight because some members of the crew allegedly detected the smell of alcohol on his breath. The matter was reported to the FBI by the Federal Aviation Administration. The FBI interviewed the airline personnel, some of whom stated that the smell of alcohol on the agent's breath was pervasive and that his eyes gave the appearance of alcohol consumption. The airline personnel indicated that the agent comported himself in a courteous manner, although he questioned the motivation for removing him from the flight. The captain of the aircraft never spoke with the agent. In his interview with FBI/OPR, the agent was adamant in his denial that he had consumed alcohol prior to the mid-day flight. He advised that he had consumed several mixed drinks the night before the flight and that he felt ill from his breakfast the morning of the flight. The agent also advised that his eyes are naturally bloodshot and that that condition may have given the airline crew the impression that he was under the influence of alcohol. He volunteered to take a polygraph examination. After reviewing all the witness statements, the FBI concluded that the allegations of misconduct were unsubstantiated.

Lack of Candor Alleged: FBI/OPR investigated an allegation that an agent had purposely deceived a supervisory official about the operational status of a federal/local task force. The agent leased an off-site location for the task force and assigned a number of FBI agents to work there. However, the local police officers who were to make up a portion of the task force were not promptly assigned due to delays in obtaining a memorandum of understanding. When the supervisor visited the task force office, the agent allegedly had a coworker invite a number of police officers to be present so as to give the impression that the task force was operational. The agent denied the allegations, but statements from a number of coworkers substantiated the allegations. The agent retired during the course of the inquiry and the matter was administratively closed.

Drug Enforcement Administration
Office of Professional Responsibility

The Drug Enforcement Administration's Office of Professional Responsibility (DEA/OPR), a component of the Inspection Division, is responsible for investigating misconduct allegations against employees of the DEA. At the end of fiscal year 1994, DEA/OPR had 30 full-time employees, including 24 full-time inspectors to serve a total of 6,871 DEA employees. In addition to the headquarters office, DEA/OPR maintains branch offices in Los Angeles and Miami.

Statistical Summary of DEA/OPR Activities in Fiscal Year 1994. During the fiscal year, DEA/OPR opened a total of 344 new matters and closed 271 matters. The number of matters pending at the end of the fiscal year rose 19% to 443 matters. The number of employees disciplined by DEA in matters related to DEA/OPR investigations is shown in table 6.

Table 6. Disciplinary Actions Involving DEA Employees

Disciplinary Actions Involving DEA Employees
FY 93 - FY 94
Type of Action FY '93 FY '94
Letters of Reprimand
20
10
Suspensions
38
58
Demotions
2
0
Terminations
5
5
Total:
65(7)
73(8)


The types of misconduct allegations most frequently investigated during the year included unauthorized disclosure of information, theft, misuse of government vehicles or other property, improper relationship with known criminals and informants, other unprofessional conduct (including sexual harassment, insubordination, falsifying records, and abuse of authority), and drug and alcohol related offenses.



Examples of Matters Investigated by DEA/OPR During Fiscal Year 1994:

Theft of Government Funds: The Internal Revenue Service, Criminal Investigative Division, detected a pattern of suspicious bank deposits by a DEA agent. The IRS noted that the agent had opened a new account and made a number of cash deposits of several thousand dollars each, all made with $100 bills. The agent and his wife, who was also a DEA employee, were both placed in a non-duty status. DEA/OPR participated in an extensive investigation involving freezing and examining the couple's bank accounts, safe deposit boxes, mutual funds and investment accounts. As a result of the investigation, it was discovered that the agent had stolen $700,000 in currency during an undercover money laundering investigation. The agent was found to have deposited $400,000 in various safe deposit boxes, and invested other sums in gold, jewelry, real estate, and other assets.

Both employees resigned from DEA and signed an agreement to make restitution. The agent who stole the money pled guilty to theft of government funds and was sentenced to 24 months incarceration, 36 months supervised release, and a fine of $25,000. His wife was not charged.

Alleged Misuse of Official Position: An attorney complained that a DEA agent had used his position to obtain sensitive information for use against the attorney's client, who was involved in litigation with the DEA agent. DEA/OPR investigated the matter and confirmed that the agent had obtained information on the client through an intelligence data base, telephone company records obtained through subpoena, and police records obtained through deceptive means. The agent was removed from his position.

Positive Drug Test Result: A DEA employee selected for random drug testing under the DEA's Drug Deterrence Program tested positive for the presence of cocaine metabolites. The employee reported taking a number of prescription and non-prescription medications under medical supervision, but denied any other drug use. A medical officer determined that the employee's use of the identified drugs would not have caused the positive test result. The employee's removal was proposed, but the employee resigned prior to issuance of a final decision.

Suspected False Statements and Misuse of Government Vehicle: A DEA employee was involved in a minor automobile accident while driving an assigned government vehicle off duty. Although the employee told a DEA supervisor that he was alone in the vehicle, an inquiry revealed that he was accompanied by family members and on a personal errand at the time of the accident. In addition, records indicated that the employee had purchased gasoline for the vehicle on non-duty days on numerous occasions. The employee was suspended for 60 days without pay.

Unauthorized Disclosure of Sensitive Information: FBI sources forwarded to the DEA a complaint alleging that a DEA agent had obtained sensitive information on numerous individuals and released the information to an acquaintance. DEA/OPR investigated and learned that the agent had obtained criminal history information on at least six individuals and disclosed the information to the acquaintance. The inquiry also revealed that the agent had queried an intelligence database on three individuals, but the agent denied releasing the results of those queries. The DEA employee was suspended without pay for five days.



Conclusion

We are pleased to report that in fiscal year 1994, Department employees, and particularly Department attorneys, continued to perform their duties in accordance with the professional standards expected of the Nation's principal law enforcement agency. During the period, OPR's mission focused on the investigation of allegations of attorney and law enforcement agent misconduct arising from the prosecutive, investigative and litigative functions of the Department. The number of matters opened involving allegations of misconduct by Department attorneys decreased significantly from the 1993 fiscal year. The decrease appears to be attributable to changes in jurisdiction and case reporting methodology, as well as an unusually high number of attorney matters opened in the previous fiscal year. Although it is not reflected in the statistical data, during this fiscal year OPR received an increased number of complex cases involving allegations of attorney misconduct.

Also during this fiscal year, OPR implemented a number of policy initiatives. These included a policy under which OPR completes investigations in matters where the subject attorney resigns or retires prior to completion of the investigation and a policy under which the results of OPR investigations are disclosed to the public in certain cases. The full impact of these changes and their ultimate effect on OPR's workload will be not be known until later years.

The Offices of Professional Responsibility of the FBI and DEA performed their integrity-related functions in an effective manner. Those offices fully complied with OPR's reporting requirements and continued to consult with this Office on an ongoing basis on matters of significance.

In the case of the FBI, although there was a slight increase in the number of allegations received during the fiscal year, there was a substantial increase in the number of employees disciplined for serious misconduct. This increase appears partly attributable to the Director's "bright line" policy regarding the enforcement of the standards of conduct. In addition, at the close of the fiscal year, FBI/OPR's Supervisory Special Agent staff totaled six full-time employees. We believe that this staffing level was not adequate to address FBI/OPR's substantial caseload and note that additional staffing was subsequently authorized. We will review FBI/OPR's employee resources, as well as the effects of the FBI's field delegation policy, in connection with our annual report for fiscal year 1995.
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----- footnotes ------

1. Attorney General Order No. 1638-92 dated December 11, 1992. Shortly after the close of fiscal year 1994, the order was superseded by Attorney General Order No. 1931-94 dated November 8, 1994. The new order provides that OPR is responsible for the investigation of allegations of misconduct by Department attorneys which relate to their authority to investigate, litigate and provide legal advice, as well as allegations of misconduct by law enforcement personnel when they are related to allegations of misconduct by attorneys within the jurisdiction of OPR.

2. Because of changes in OPR's jurisdiction and its focus on the investigation of litigation-related professional misconduct, in fiscal year 1994 the Office discontinued its general oversight of the internal inspection units in the Bureau of Prisons, Immigration and Naturalization Service, and United States Marshals Service, whose activities are now generally overseen by the Office of the Inspector General. Consequently, beginning with this report OPR has discontinued reporting on the operations of the internal inspection units in those components of the Department.

3. The policy was announced in a December 13, 1993 memorandum from then Deputy Attorney General Philip Heymann.

4. Of the 37 complaints received from private attorneys, 33 involved allegations of misconduct against Department attorneys.

5. All of the subjects in the cases discussed below are referred to by the masculine pronoun regardless of the gender of individual subjects in order to protect their privacy.

6. Statistics for disciplinary actions in prior fiscal years did not distinguish actions against Special Agents from actions against other employees.

7. This total represents the number of actions taken in fiscal year 1993 in the four specified disciplinary categories. The total number of employees subject to administrative actions of all types as a result of DEA/OPR investigations, as reported in this Office's report for fiscal year 1993, was 101. This figure included 35 employees who received letters of caution and one non-DEA employee who was removed from a task force as a result of a DEA/OPR investigation.

8. In addition, 27 DEA employees received letters of caution as a result of DEA/OPR investigations.