Office of Professional Responsibility

Fiscal Year 1995 Annual Report









Office of Professional Responsibility

Fiscal Year 1995 Annual Report




Introduction

Jurisdiction and Functions

Policy Initiatives and Effect on OPR Activities

Statistical Summary of OPR Activities in FY 1995

Examples of Matters Investigated by OPR in FY 1995

Federal Bureau of Investigation OPR

Statistical Summary of FBI/OPR Activities in FY 1995

Examples of Matters Investigated by FBI/OPR in FY 1995

Drug Enforcement Administration OPR

Significant Initiatives in FY 1995

Statistical Summary of DEA/OPR Activities in FY 1995

Examples of Matters Investigated by DEA/OPR in FY 1995

Conclusion

__________________________________________





Tables

Table 1. Sources of Misconduct Complaints
Table 2. Subject Matter of Misconduct Complaints Received in FY 1995 by Attorney/Non-Attorney
Table 3. Results of Attorney Misconduct Investigations
Table 4. Disposition of FBI/OPR Matters Closed in FY 1995



Office of Professional Responsibility

Fiscal Year 1995 Annual Report


Introduction



By order dated December 9, 1975, the Attorney General created the Office of Professional Responsibility for the purpose of ensuring 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 in accordance with 28 C.F.R. §0.39a(i)(3), which requires the head of the Office, the Counsel on Professional Responsibility, to submit an annual report reviewing and evaluating the activities of internal inspection units in the components of the Department. This is OPR's twentieth annual report and it covers the 1995 fiscal year (October 1, 1994 - September 30, 1995).

Jurisdiction and Functions



The Office of Professional Responsibility (OPR) is responsible for investigating allegations of misconduct by Department of Justice attorneys that relate to the exercise of their authority to investigate, litigate or provide legal advice.(1) In addition, OPR has jurisdiction to investigate allegations of misconduct by law enforcement personnel when they are related to allegations of misconduct by attorneys within the jurisdiction of the Office. The Office also 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. OPR's recommendation is not binding on the supervisory official with disciplinary authority over the attorney involved. However, if the supervisory official takes action not included in the recommended range, the official is required to advise the Deputy Attorney General in writing.

OPR regularly reviews case files and statistical data to identify any misconduct trends or systemic problems in the programs and operations of the Department. The Office also oversees the operations of the Offices of Professional Responsibility in the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA) on behalf of the Attorney General. 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 internal investigative units in the FBI and DEA through the receipt of periodic reports and frequent contacts with personnel in those offices.

During fiscal year 1995, OPR increased its attorney staffing level to 16. Additional staffing was authorized for fiscal year 1996.

Policy Initiatives and Effect on OPR Activities



In fiscal year 1995, OPR was able to assess the impact of a number of policy initiatives previously ordered by the Attorney General and the Deputy Attorney General designed to improve the OPR process and the integrity program in the Department. The initiatives included (1) a policy under which OPR conducts an expedited investigation of judicial findings of misconduct or judicial criticism involving Department attorneys without awaiting completion of the litigation, (2) a policy under which OPR completes the investigation of allegations of attorney misconduct despite the resignation or retirement of the Department attorney, (3) a policy providing for the public disclosure of the results of OPR investigations in certain cases involving allegations of attorney misconduct, (4) a policy of reporting private attorneys who make bad faith complaints to appropriate judicial or state bar licensing authorities, and (5) a more active policy of cooperating with state bar licensing authorities in matters of mutual interest.

In furtherance of these initiatives, the Deputy Attorney General and the Counsel met with the Chief Judges of each of the United States Courts of Appeals to encourage them to advise their fellow circuit and district judges that, consistent with ex parte concerns, they may bring to OPR's attention for expedited review actions of Department attorneys which they believe are unacceptable whenever they occur without regard to the procedural posture of the case. In addition, OPR continued aggressively to seek to cooperate with state bars in reporting, investigating, and resolving allegations of misconduct against Department attorneys. In particular, OPR has been seeking to establish working relationships with state bars so that allegations against Department attorneys may be investigated by OPR in the first instance with a report and underlying factual support provided to the bar upon its request.

The overall intent of these initiatives is to provide a more responsive, open internal integrity program in the Department of Justice. A concomitant effect of the initiatives has been a significant increase in OPR's responsibilities and workload that continues to be addressed by increases in OPR staffing.

Prompt Investigation in Cases Involving Judicial Misconduct Findings or Criticism: The policy of conducting an expedited investigation into judicial misconduct findings or criticism frequently results in an OPR investigation prior to completion of the appeals process. This policy permits the resolution of misconduct issues in a more prompt and timely fashion. In the past, in cases in which a misconduct finding or criticism was contested on appeal, OPR would usually await the results of the appellate process before actively investigating the matter. Thus, under the prior practice misconduct allegations were often resolved during the appellate process or OPR would have the benefit of the appellate court's views which frequently served to narrow the issues. This is generally not the case under the new policy. Similarly, under the new policy, OPR is often unable to obtain comments on the judicial findings or criticism from the trial judge because the underlying case is still pending in the courts.

Completion of Investigation Following Resignation or Retirement of Attorney: The policy of completing an OPR investigation despite the resignation or retirement of the subject has served to increase accountability for the actions of the Department's prosecutors and other attorneys, regardless of whether they continue to be employed by the Department, and to provide the Department with a full factual record of the resolution of all OPR matters. This policy has impacted on OPR's operations since in the past the OPR investigation was normally closed upon the resignation or retirement of the Department attorney unless there was a substantial institutional interest in completing the investigation. In addition, the policy has had the effect of increasing the number of matters in which allegations of attorney misconduct are substantiated. In the past, a Department attorney's resignation before completion of the investigation or the imposition of discipline frequently meant that a determination that the attorney had engaged in misconduct or exercised poor judgment was avoided. This is not the case under the revised policy calling for completion of the investigation unless the Deputy Attorney General determines that no substantial Department interest is furthered by continuing the investigation. Consequently, the policy has resulted in an increase in the number of substantiated allegations of attorney misconduct which is reflected in the statistical data for fiscal year 1995.

Public Disclosure of OPR Findings: The Department's public disclosure policy calls for the disclosure of the results of OPR investigations in matters in which there is a finding of intentional misconduct or in matters involving an allegation of serious professional misconduct in which there has been a demonstration of public interest, and the public interest in disclosure outweighs the privacy interest of the attorney and any law enforcement interests. Public disclosure can also be made at the request of the Department attorney who was the subject of the allegation when the disclosure would not compromise law enforcement interests. Under the policy, OPR prepares a proposed public summary in matters which fall into one of the categories in which disclosure may be appropriate. OPR then coordinates a multi-step process involving several components of the Department in which the written comments or objections of the subject attorney and his office are solicited and the privacy and law enforcement interests are assessed. At the conclusion of this process, OPR sends the proposed summary to the Deputy Attorney General with a recommendation as to whether the summary should be publicly disclosed. In matters in which the Deputy Attorney General determines that disclosure is appropriate, the summary is sent to the Office of Public Affairs for release. This process involves OPR in the matter long after the misconduct investigation has been completed. Pursuant to the disclosure policy, the Department of Justice released two public reports in fiscal year 1995.

Reporting of Bad Faith Misconduct Complaints: Pursuant to policy directives from the Attorney General and the Deputy Attorney General, OPR implemented a policy of reporting to appropriate judicial or state bar licensing authorities attorneys who make allegations against Department attorneys in bad faith. OPR has interpreted the policy strictly in order not to discourage the filing of misconduct complaints against Department attorneys. One such referral was made in fiscal year 1995.

Increased Cooperation with State Bars: Pursuant to policy directives from the Deputy Attorney General, during fiscal year 1995, OPR increased its liaison and cooperative efforts with state bar licensing authorities. This included sending OPR attorneys to meetings of the National Organization of Bar Counsel and discussing a procedure under which state bars would defer to an OPR investigation in cases involving allegations against Department attorneys. The ongoing discussions have also covered proposals under which OPR would share the results of its investigations with state bars in certain circumstances.

Statistical Summary of OPR Activities in Fiscal Year 1995



Matters Opened in Fiscal Year 1995: The statistical data for fiscal year 1995 reflect the effects of the November 8, 1994 Attorney General Order which focused OPR's mission on allegations of attorney misconduct. During the fiscal year, OPR opened a total of 196 matters involving allegations of misconduct against Department of Justice employees. Consistent with the jurisdictional mandate, 192, or 98% of the matters opened involved allegations against Department attorneys.

The 192 attorney matters opened in fiscal year 1995 represented a 9% decrease from the 211 attorney matters the Office opened in fiscal year 1994. The decrease was partially attributable to changes in OPR's jurisdiction, as well as changes in case-reporting methodology.(2)



The number of complaints received from certain categories of sources, and the percentage of complaints falling into each category, are set out in table 1 below.

Table 1.

Sources of Misconduct Complaints
Source Number of Complaints Percent

of Total

Department components & employees

(including self-reporting)

 62 32%
Private attorneys 45 23%
Judicial opinions & referrals 36 18%
Private parties 30 15%
Other agencies 14 7%
Congressional referrals 5 3%
Other sources 4 2%

Notably, the 36 matters resulting from judicial opinions and referrals reflected in the table represent a continuing increase in the number of matters opened on the basis of this source category. Our data show that there were 21 judicial source matters opened in fiscal year 1993 and 26 such matters opened in fiscal year 1994. Thus, the 36 judicial source matters opened in fiscal year 1995 represented a 71% increase in this source category over the three-year period (FY 1993 - FY 1995).(3) This increase may be partially attributable to improved reporting of instances of judicial findings of misconduct and judicial criticism following the issuance on November 8, 1994, of revised guidelines on reporting allegations of misconduct. However, the increase appears to confirm the statement set out in our Annual Report for Fiscal Year 1993 in which we observed that the courts have become less restrained in their criticism of government attorneys, particularly in cases in which a prosecutor's conduct is perceived to have affected the defendant's right to a fair trial.



The subject matter of misconduct complaints received by OPR in fiscal year 1995 is reflected in table 2 below. The table includes the number of complaints involving both attorneys and non-attorneys in each category.

Table 2.

Subject Matter of Misconduct Complaints Received in FY 1995

by Attorney/Non-Attorney

 

 
Number of Complaints
Alleged Misconduct
Atty Non-Atty Total
Abuse of prosecutorial or investigative authority 77 0 77
Criminality 32 1 33
Unprofessional or unethical behavior 32 1 33
Conflicts of interest 18 0 18
Unauthorized release of information (other than grand jury or

classified information)

10 0 10
Negligence, failure to perform duties properly 5 1 6
Violations of civil or constitutional rights 3 0 3
Other (incl. tax violations, retaliation, sexual misconduct) 15 1 16




Matters Closed in Fiscal Year 1995: In fiscal year 1995, OPR closed a total of 251 matters. Of the matters closed, 234 involved allegations of misconduct by Department attorneys. The remaining 17 matters involved allegations against non-attorney personnel.

Allegations of misconduct were substantiated in 27, or 11.5% of the 234 attorney matters closed in fiscal year 1995 (one of the matters involved substantiated allegations against two attorneys). Disciplinary actions were taken against a total of 16 employees. No action was taken against two employees. As of May 31, 1996, action was pending with respect to five other employees. In addition, five employees against whom allegations were substantiated resigned or retired before completion of the investigation or the imposition of discipline.

The 27 matters involving substantiated allegations against Department attorneys represented an increase in this figure over previous reporting periods. The increase was partly attributable to the new policy of completing the investigation of misconduct allegations despite the resignation or retirement of the subject Department attorney. A comparison of the results of attorney misconduct matters for the fiscal years 1993 - 1995 is set out in table 3 below.



Table 3.
Results of Attorney Misconduct Investigations
Fiscal Year No. of Matters Closed No. of Matters Where Allegations Substantiated Percentage of Matters Substantiated
1993 243 7 2.9%
1994 407 22 5.4%
1995 234 27 11.5%


Examples(4) of Matters Investigated by OPR in Fiscal Year 1995



A. Allegations of Misconduct Substantiated:

Procuring Approval for Improper Plea Agreement. OPR investigated allegations that a DOJ attorney accepted an improper plea agreement and engaged in a subterfuge to obtain approval of that plea agreement. Through its investigation, OPR learned that the attorney did not want to try the case because he believed the case had some weaknesses and because trying the case would have required him to travel. OPR also found that the attorney had circumvented the conditions for approval that his supervisor had placed upon any plea agreement by presenting a plea approval form to a different supervisor and representing to the second supervisor that the plea agreement was consistent with the conditions the first supervisor had imposed. OPR concluded that the attorney had engaged in professional misconduct. No discipline was imposed because the attorney voluntarily resigned prior to the imposition of disciplinary action.

Improper Extrajudicial Statement. A defendant was convicted of various theft-related charges. After sentencing, the DOJ attorney who prosecuted the case publicly commented on the court's refusal to impose additional time on the defendant's sentence for the psychological damage suffered by the victim. The attorney stated that if it were up to him, he would have punished the defendant much more severely. The attorney admitted to OPR that he made the public comment. He said that he regretted having made the statement, and added that the case was very emotional for him.

OPR concluded that the attorney engaged in professional misconduct. However, given the attorney's admission and the fact that his comment did not have an impact on any proceeding, the attorney was given an admonishment and the incident was noted in his performance evaluation.

Inflammatory Comments to the Grand Jury. OPR investigated criticism by a court of a DOJ attorney for telling the grand jury that he expected a witness to commit perjury. The witness was later convicted for, among other things, lying to the grand jury. The court found that the attorney's statement did not have a substantial impact upon the grand jury, but that he made the statement without justification. The attorney admitted that the remark was improper but told OPR that he did not intend to inflame the grand jury. OPR concluded that the attorney engaged in professional misconduct. Specifically, OPR found that he acted in reckless disregard of his duty to be fair to all grand jury witnesses and to refrain from inflaming or otherwise improperly influencing the grand jury. The attorney was given an admonishment.

Improper Comments on Defendant's Post-Arrest Silence and Retention of Counsel. OPR investigated criticism by a court that a DOJ attorney improperly sought to draw adverse inferences from a defendant's post-arrest silence. The attorney repeatedly questioned the defendant about his post-arrest silence, and also drew attention to the fact that he retained a criminal defense attorney. Despite the court's instructing the jury to disregard that line of questioning, the attorney again commented on the defendant's post-arrest silence in his closing argument. The defendant was convicted but the conviction was reversed on appeal, based on the attorney's comments. The attorney told OPR that he was not aware that his comments had been improper, and that he did not research the matter after it had been raised by defense counsel. OPR concluded that the attorney engaged in professional misconduct. Specifically, OPR found that he recklessly disregarded his obligation to observe the defendant's constitutional rights. The attorney was given a reprimand.

Threatening Criminal Prosecution to Coerce Settlement of a Civil Case. OPR investigated allegations that a DOJ attorney threatened criminal action against a party to civil litigation to induce that party to settle the civil case. Initial settlement discussions yielded no fruit. The DOJ attorney asked the party in a deposition whether he was aware that the government had discussed a criminal investigation of his conduct. After a jury deadlocked on certain claims in the civil case, the attorney informed the party, by letter, that the government intended to retry those claims. The letter proposed settling the civil matter and contained an offer to the party to work with the government to resolve all issues. However, the attorney did not discuss any proposed settlement with the prosecutors and adverted to possible criminal proceedings only to gain leverage in the civil suit. OPR concluded that the attorney's linking of the civil settlement to possible criminal proceedings was improper and displayed poor judgment, but did not rise to the level of intentional misconduct or recklessness. In reaching this conclusion, OPR noted that the attorney's supervisor reviewed, edited, and approved the letter in which the attorney linked the possible criminal proceeding with the civil settlement, and did not believe that the letter was improper. No discipline was recommended for the subject attorney because OPR did not find that he had engaged in professional misconduct. However, OPR recommended that additional training be provided on permissible conduct in cases in which there are parallel civil and criminal proceedings.

Causing Government's Complaint to be Dismissed With Prejudice. OPR investigated a court's criticism of a DOJ attorney's handling of a civil case. OPR found that the attorney had failed to file an entry of appearance in the case; failed to respond to two orders of the magistrate judge to address deficiencies in the original complaint; failed to respond to an order of the court to amend the complaint; and failed to respond to the defendants' motion for reconsideration, to file a motion to reconsider the order of dismissal with prejudice, or to file a notice of appeal. The conduct occurred over a seven-month period, and discovery of the neglect was too late to allow the government to rectify the matter. OPR concluded that the attorney engaged in professional misconduct. Specifically, OPR found that he recklessly disregarded his professional obligation to represent the interests of his client, the federal government, by engaging in a pattern of prolonged and serious neglect in the handling of the case that caused significant prejudice and monetary loss to the government. After OPR recommended the attorney's dismissal, he voluntarily resigned. OPR subsequently referred the matter to the appropriate state bar licensing authority.

Misstatement of Fact to Court. OPR investigated an allegation that a DOJ attorney had made a misstatement of fact to the court in a case involving the robbery of a store. The attorney was called to testify in the retrial of the robbery case, the first trial having ended in a mistrial. At the second trial, the attorney testified that he had shown a witness a photograph of the defendant for identification purposes. At the time he testified, the attorney had no recollection of showing a photograph to the witness. After the mistrial, but before the retrial, the witness had told the attorney that he had seen a photograph of the defendant during the grand jury investigation. In fact, the attorney had not shown the photograph to the witness, but the witness had been shown the store's videotape of the crime made at the time of the robbery. OPR credited the attorney's explanation that he and the witness had a misunderstanding as to what the witness had been shown due to a language problem. OPR found that the attorney had considered the issue prior to his testimony and that he was not fully candid and forthcoming in his testimony. However, OPR also found that the attorney was not attempting to create or suppress evidence, but that his misstatement to the court involved a mistake in judgment. The attorney received a written admonishment.

Leaking Investigative Information to Subjects. A member of a criminal organization who was secretly cooperating with the government told prosecutors that a DOJ employee had a personal relationship with another member of the organization. The cooperating witness alleged that the employee had leaked information on pending criminal investigations to the organization, and that the organization had stored weapons at the home of one of the employee's relatives. OPR opened an investigation and obtained the FBI's assistance in setting up an operation in which information regarding a sham warrant was planted. That information was leaked by the subject employee. In addition, it was learned that the employee obtained some information from a second DOJ employee whose position afforded even greater access to sensitive investigative information. The second DOJ employee admitted discussing certain confidential information with the first DOJ employee, as well as sharing some information with certain relatives and friends. Both employees were immediately placed in an administrative leave status to remove them from the office.

The second employee was terminated. The other subject employee resigned after his removal was proposed, and was subsequently indicted and tried on charges of disclosing confidential information and conspiracy to obstruct justice. The jury acquitted him on the first charge but was unable to reach a verdict on the charge of conspiracy to obstruct justice. A retrial on that charge is under consideration.

Willful Compromise of Electronic Surveillance. An agent from one component law enforcement agency was accused of purposefully compromising another component law enforcement agency's authorized electronic surveillance. The agent was exonerated by his own agency's internal affairs unit after an investigation. The complainant who first brought the matter to OPR's attention then charged that the internal affairs unit had failed to complete certain, necessary investigative steps. OPR thereafter conducted additional investigation jointly with the internal affairs unit.

The agent allegedly caused the compromise of a telephone wiretap by helping local police enter the premises where the telephone was located to conduct a search, despite his knowing of the other component agency's surveillance. OPR found that the evidence was insufficient to prove that the agent had purposefully set out to interfere with the surveillance but concluded that the agent had exercised extremely poor judgment in assisting the entry by local police. The agent subsequently received a written letter of reprimand for exercising poor judgment.

Improper Contact with Represented Party. OPR investigated allegations that a DOJ attorney had visited a defendant after conviction and sentencing to express his sentiment that the prosecution had not been driven by personal animus. This visit occurred without the knowledge or presence of the defendant's attorney. During the visit, the attorney and the defendant discussed a number of mutual friends and acquaintances and other subjects. Although the defendant raised the matter of his case, the attorney addressed the defendant's concerns only generally. The attorney's supervisor became aware that this meeting had occurred and reported the incident to OPR, as well as his conclusion that the attorney had violated the Department's regulations on contact with represented persons. However, the supervisor also reported that he did not believe the contact was either deliberate or egregious. The supervisor verbally reprimanded and counselled the attorney. Upon review, OPR agreed with the analysis and determination of the supervisor and, in view of the circumstances and the fact that the DOJ attorney had been disciplined by his supervisor, closed the matter without further action.

Improper Taping of Telephone Conversation. OPR initiated an investigation after a DOJ attorney admitted that he recorded part of a conference call among several colleagues in his office and persons from another component of DOJ, without the knowledge of any of the participants. Subsequently, the subject attorney told one of the attorneys who had participated in the telephone conference that he had taped part of the conversation. This was brought to the attention of the subject attorney's supervisor, who referred the matter to OPR. The attorney admitted to OPR that he had taped portions of the conversation in order to have a record of it and acknowledged that this was a serious error in judgment. OPR concluded that, although the attorney did not violate any law, regulation or applicable ethical precept, the surreptitious recording was, at a minimum, bad form and an exercise of poor judgment. The attorney received a letter of reprimand.

Filing Duplicative Pleadings. OPR investigated allegations that a DOJ attorney engaged in professional misconduct by filing a superseding indictment while the government's motion to join two criminal cases for trial was pending. The superseding indictment effectively consolidated the two criminal cases which were the subject of the joinder motion, thereby rendering moot the question of joinder. In a second matter, OPR investigated allegations that the same attorney committed discovery violations by failing to turn over exculpatory material to which the defendant was entitled. OPR's investigation revealed that the attorney did not file the superseding indictment with the intent of affecting the court's disposition of the motion for joinder; however, OPR concluded that his failure to consider the consequences of that course of action, while not professional misconduct, was an exercise of extremely poor judgment. With respect to the allegation that the attorney had failed to turn over exculpatory material, OPR found no professional misconduct since the exculpatory material was in the possession and control of other authorities and had never been made known to the attorney. OPR also found that the material at issue contained much more information that would have been helpful to the prosecution and, therefore, it was unlikely that the information had ever been brought to the attention of the attorney. No disciplinary action was taken.

B. Allegations of Misconduct Unsubstantiated:

Improper Questioning and Violation of Pretrial Order. OPR reviewed judicial findings that a DOJ attorney engaged in misconduct during a criminal trial. The court found several instances of improper conduct by the DOJ attorney, including that he: (1) asked questions for which there was no good faith factual basis; (2) improperly pointed out during cross-examination the defendant's failure to produce exculpatory information; and (3) violated a pretrial order excluding certain evidence by eliciting certain testimony. The court also "imputed" misconduct of the case agent to the prosecutor. Based on OPR's review of the court's findings and the underlying facts, OPR concluded that the attorney did not engage in professional misconduct. Specifically, OPR found that he could not be held responsible for the misconduct of the agent, and that the court's other criticisms involved minor and inadvertent trial errors during what appeared to have been a hotly-contested trial.(5)

Collusive Activity and Undue Influence. OPR investigated allegations that a DOJ attorney involved in a bankruptcy matter improperly "colluded" with another individual to allow him to purchase a failed business at a favorable price. The attorney also allegedly exercised "undue influence" on the bankruptcy judge, for whom the attorney allegedly had once served as a law clerk. Through its investigation, OPR determined that the attorney had not engaged in professional misconduct. Specifically, OPR found that he had no personal or professional relationship with the purchaser of the business and found no evidence of any collusive or improper activity regarding the transaction. OPR also determined that the allegation that the attorney had clerked for the bankruptcy judge was false and there was no evidence that the attorney had exercised undue influence over the judge.

Lack of Truth and Veracity. OPR investigated general allegations that a DOJ attorney had a bad reputation for truth and veracity. OPR's investigation revealed that the DOJ attorney had referred to a state bar licensing authority allegations that the complainant, a private attorney, had used racial epithets in referring to his client in a case in which the DOJ attorney represented the United States. The DOJ attorney made the bar referral after consulting with his supervisor. In addition, the presiding judge expressed his agreement that the private attorney should be referred to the state bar. Upon completion of the investigation, OPR concluded that the DOJ attorney had not engaged in professional misconduct. Specifically, OPR found that the allegations against him were without merit and were made by the complainant in retaliation for his having been appropriately referred to the state bar.

Failing to Correct Misunderstanding of Law. OPR investigated an allegation that a DOJ attorney made misstatements of law at a settlement conference before the court. Although OPR found that the attorney's statements resulted from carelessness rather than from an attempt to deceive, OPR was troubled by the attorney's failure to clarify the statements immediately to opposing counsel and the court after opposing counsel notified DOJ that the representations were imprecise and confusing. OPR did not find professional misconduct, but did find that the attorney did not appreciate his responsibility to correct the reasonable and justified misunderstanding caused by his statements. OPR recommended that the attorney be counselled on the importance of being fair and candid. The attorney thereafter was counselled by his supervisor.

Questions to Spouse about Invocation of Marital Privilege. OPR investigated an appellate court's decision holding that it was reversible error for the government to question defendant's wife on whether she had invoked the marital privilege before the grand jury. Whether it was proper to question the witness about the invocation of the privilege was a question of first impression. There was case law that arguably supported posing the question, and the DOJ attorney had a justifiable reason for asking the question (to show bias). In addition, before the question was presented, the attorney requested, and was granted, leave from the court to proceed. OPR determined that the questioning did not constitute professional misconduct.

Improper Court Filing and Contact with Represented Party. OPR investigated allegations relating to a motion filed by a DOJ attorney requesting continuance of trial in a civil case until completion of a related criminal case in another district. The defendant's attorney complained that the DOJ attorney was attempting to manipulate the timing of the civil case to prevent the defense from raising a double jeopardy defense in the criminal case. The complainant suggested that the attorney's conduct constituted a conflict of interest. When these allegations were raised in court, the magistrate judge found no information or legal rationale that would substantiate the broad assertions of unethical behavior.

The complainant also asserted that the DOJ attorney had direct and improper contact, by mail, with his client. According to the attorney, his only contact with the complainant's client, direct or indirect, was the service of legal papers on the client by the United States Marshals Service. He explained that, at that time, he was unaware that the client had an attorney. OPR concluded that the attorney acted properly in this matter.

Failure to Follow Office Procedures. OPR investigated allegations that a DOJ attorney entered into an oral plea agreement with defense counsel without obtaining supervisory approval or making the government's offer subject to supervisory approval. In addition, the attorney subsequently repudiated the plea agreement. The court found that the attorney did not follow proper DOJ procedures in reaching the plea agreement. OPR concluded that this conduct did not rise to the level of professional misconduct but raised questions of the attorney's job performance which should be handled as the attorney's supervisors deemed appropriate.

Conflict of Interest. OPR investigated an allegation that a DOJ attorney caused a government investigative agent to be transferred from his district to prevent a pending criminal investigation from focusing on a public official who was a friend of the DOJ attorney. In its investigation, OPR found no evidence that the agent was transferred for the improper reason and concluded that the allegation was without merit. OPR discovered a number of other factors that led to the agent's transfer from the attorney's district, including complaints by other DOJ attorneys, as well as concerns raised by the agent's supervisors. OPR also found that the attorney's actions were inconsistent with an attempt to interfere with the criminal investigation. OPR concluded that the attorney did not engage in professional misconduct.

Investigation of Defense Counsel. OPR reviewed a judicial finding that a DOJ attorney's conduct in investigating the defendant's attorney for obstruction of justice interfered with the defendant's right to counsel. As a result, the court partially dismissed the indictment against the defendant. The appellate court reversed, finding that the defendant's Sixth Amendment rights had not been affected and that the attorney's conduct was not sufficiently outrageous to justify the remedy. Based on its investigation, OPR found that the attorney did not engage in professional misconduct in this matter since he had a sufficient factual and legal basis for undertaking and continuing the investigation of the defendant's attorney. OPR further concluded that the attorney acted appropriately under all the circumstances.

Intentional Concealment of Exculpatory Documents/Subornation of Perjury. OPR investigated allegations that DOJ attorneys intentionally concealed exculpatory documents from the defense and, once the documents came to light, allowed an FBI agent to give perjurious testimony on the matter. OPR conducted a joint investigation with the FBI's Office of Professional Responsibility, and concluded that the allegation against the attorneys was not substantiated. The result of the investigation into the agent's alleged misconduct, which FBI/OPR determined was substantiated, is described under the section which follows on the FBI's Office of Professional Responsibility.



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 1995.



Federal Bureau of Investigation
Office of Professional Responsibility



During fiscal year 1995, 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 23,777 employees, including 10,089 Special Agents and 13,688 other employees. 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 1995 the office's professional staff consisted of an Inspector-In-Charge, a Unit Chief, and six Supervisory Special Agents. Some of the misconduct matters handled by FBI/OPR are referred to FBI field offices for investigation under FBI/OPR supervision.

Statistical Summary of FBI/OPR Activities in Fiscal Year 1995: FBI/OPR reported that in fiscal year 1995 it opened 526 matters involving allegations of misconduct against FBI employees. This number represented a decrease of 1.7% from the 535 matters opened the previous year. The number of matters closed by the office decreased 21.4% from 580 in fiscal year 1994 to 456 in fiscal year 1995.(6)

Types of Allegations: The 526 FBI/OPR matters opened during fiscal year 1995 involved a wide variety of allegations. The most common types of allegations were unauthorized disclosure of information, misuse of position, drug abuse or drug-related violations, misuse of government vehicles or other property, and unprofessional conduct. The last category, which accounted for 157 matters opened during fiscal year 1995, encompasses many types of alleged misconduct, from complaints of discrimination to use of improper management methods.

Disposition of FBI/OPR Matters: Of the 456 matters reported closed by FBI/OPR in fiscal year 1995, 101 matters were closed administratively. This number included 49 cases in which the subject employee resigned and 14 cases in which the subject employee retired prior to conclusion of the investigation or the imposition of discipline. In addition, 38 cases were administratively closed because, for example, the complaints were withdrawn or investigation revealed that they were baseless.

The remaining 355 cases closed by FBI/OPR in fiscal year 1995 were adjudicated either by the Administrative Summary Unit of the Personnel Division (ASU/PD) (213 cases) or by field and division managers under the delegation order(7) implemented in fiscal year 1994 (142 cases). Table 4 shows the disposition of matters closed by FBI/OPR in fiscal year 1995.



Table 4.

Disposition of FBI/OPR Matters Closed in FY 1995

Closed Administratively by FBI/OPR
Subject resigned 49
Subject retired 14
Allegations found to be baseless, withdrawn,
or closed for other reasons		 38
Subtotal: 101
Adjudicated by Field/Division Managers 142
Adjudicated by ASU/PD 213
Subtotal: 355
Total: 456






FBI/OPR reported that of the 355 cases adjudicated, misconduct was substantiated in 305 cases. A total of 356 FBI employees were disciplined as a result (164 special agents and 192 other employees). Two hundred and three (203) employees received letters of censure; 76 were placed on probation; 113 were suspended without pay; 8 were demoted; and 31 were dismissed from their positions. In addition, 90 other corrective actions, such as oral reprimands, counselling or additional training, were taken as a result of FBI/OPR investigations.(8)

Examples of Matters Investigated by FBI/OPR in Fiscal Year 1995



Mishandling of Cocaine Evidence. FBI/OPR received a report that an agent had admitted to his supervisor that he gave a small quantity of cocaine to a cooperating witness immediately after conducting a controlled cocaine purchase as part of an investigation. The agent said he had never done anything similar on any other occasion, and attributed his action to inexperience, impulse, euphoria following the successful completion of the controlled purchase, and a wish to reward the cooperating witness. Prosecution was declined and FBI/OPR continued the investigation administratively. The agent agreed to take a voluntary polygraph examination to attest to the truthfulness of his signed, sworn statement on the matter, which included his denial of any other wrong-doing with the cooperating witness or any other source. The polygrapher determined that the agent's answers indicated deception with respect to both prior wrong-doing with sources and the agent's personal drug use. Following the polygraph examination, the agent admitted that he, too, had used some of the cocaine obtained in the controlled purchase. He submitted his immediate resignation.

False Testimony and Withholding of Material. FBI/OPR investigated allegations that an agent had engaged in serious misconduct in connection with a public corruption case. It was alleged that the agent's actions had resulted in the government's failing to disclose to the defendant certain documents containing potentially exculpatory material. Specifically, the complaint alleged that the agent had intentionally withheld two investigative reports from defense attorneys during discovery proceedings and had failed to place the original interview notes from which those reports were prepared in the file in a timely manner. In addition, it was alleged that the agent had perjured himself when he testified that no investigative reports or notes were available relating to his discussions with a major witness.

Investigation by FBI/OPR and the Department of Justice OPR resulted in findings that: 1) the agent was inexperienced, inadequately prepared and inappropriately assigned as the case agent in a major public corruption case; 2) the agent testified falsely on a material issue, but did not commit perjury in that he was mistaken in his belief that no investigative reports or notes existed concerning his discussion with a major witness; 3) the agent did not undertake the necessary pretrial review of the case to prepare himself adequately for trial; 4) the agent did not maintain his investigative notes in the proper section of the case file; and 5) the agent, after being transferred to a different office, found his original interview notes but did not disclose to anyone that he had found them until he was interviewed by OPR investigators. The agent was suspended without pay for five days and placed on probation for six months.

Theft and Use of Cocaine Evidence. A citizen reported to a local police department that an FBI support employee was acting in an irrational, delusional and paranoid manner. Police officials contacted FBI/OPR, which arranged for an Employee Assistance Program (EAP) coordinator to contact the employee at his residence the same day. When interviewed, the employee told the EAP coordinator that he was being surveilled both electronically and physically. He also reported calling the police department himself on two prior occasions as a result of this belief. At the urging of the FBI, the employee agreed to see a psychiatrist. The psychiatrist requested that the employee agree to a voluntary urinalysis, but the employee declined. Thereafter, the employee was directed by the FBI to submit to a drug test under FBI/OPR auspices based on reasonable suspicion.

The employee then admitted to the EAP coordinator that he had been using cocaine for the previous six months, including the day before his behavior was reported to FBI/OPR, and that he had obtained the cocaine from FBI drug evidence slated for destruction. The employee was immediately dismissed. Prosecution of the employee was declined because the theft of cocaine from FBI evidence scheduled to be destroyed could not be independently corroborated.

Misuse of Position for Personal Gain. FBI/OPR received an allegation that a special agent had fraudulently obtained a reduced price on a new motorcycle by representing that the vehicle was being purchased for official use. An investigation revealed that the agent had used contacts in a local law enforcement agency to obtain a purchase order on official letterhead which implied that the agent was an employee of that agency. He then presented that document to the motorcycle company, and obtained a reduced price under the company's police purchase program. The agent was censured and suspended without pay for three days.

Unprofessional Conduct by Supervisory Official. FBI/OPR received information that a supervisory official had been unprofessional, overbearing, demeaning, rude and arrogant in singling out a support employee for criticism in a group setting. During the investigation of this allegation, an additional allegation was developed that the same official had engaged in sexual harassment of a subordinate. The OPR investigation failed to substantiate the allegations of sexual harassment, but did substantiate allegations that he made inappropriate and unprofessional comments to his subordinates, and that he allowed an unprofessional atmosphere to exist in the unit under his authority. The supervisor received a letter of censure.

Reporting for Duty While Under the Influence of Alcohol. FBI/OPR received a report that an agent who was assigned to assist in monitoring a court-authorized telephone wiretap had reported late for duty, and was judged by other law enforcement officers to be inebriated. Additional personnel were then called to assume his responsibilities. The agent was relieved of the use of a government vehicle during the investigation. The agent admitted reporting late, but denied being intoxicated on the day in question. He retired prior to the conclusion of the investigation.



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 DEA employees. DEA/OPR was reorganized in fiscal year 1995, and additional resources were dedicated to the office. A DEA/OPR field office was opened in New York, joining those already established in Los Angeles and Miami, and 12 new staff positions were added. At the end of fiscal year 1995, DEA/OPR had 41 full-time employees, including 28 full-time inspectors, to serve a total of 6,734 DEA employees.

In addition, as a result of the reorganization, DEA established an Integrity Analysis and Support Unit within DEA/OPR. That unit is responsible for the review and analysis of investigative files in order to identify common factors found among incidents of alleged employee misconduct and to recommend corrective action to strengthen management controls throughout DEA.

Significant Initiatives in Fiscal Year 1995



Installation of Computer Network: In fiscal year 1995, DEA's Inspection Division, which comprises DEA/OPR and the Office of Inspections, installed a division-wide computer network linking staff at the headquarters location with those at the field offices in New York, Los Angeles and Miami. The network enabled DEA/OPR to better manage investigative case documents and to perform full text retrieval and searches on all documents stored online.

Development of Improved Case Tracking System: DEA/OPR also pursued its goal of redesigning its current case tracking system. During fiscal year 1995, the office worked with DEA's Office of Information Systems to develop the most effective and efficient method for accomplishing the task, and in August 1995, a statement of work was issued detailing the proposed system. The new system will enhance DEA/OPR's ability to store and retrieve data such as statistical measures of investigations conducted, employees named in multiple misconduct complaints, status of pending investigations, and other information not currently retrievable in an automated fashion.

Development of OPR Inspectors Handbook: During fiscal year 1995, DEA/OPR developed the first OPR Inspectors Handbook. The handbook is organized by topic and provides guidance for DEA/OPR inspectors and supervisory special agents acting as designated inspectors in employee misconduct investigations.

Henthorn Reviews: As a result of a ruling by the U.S. Court of Appeals for the Ninth Circuit in United States v. Henthorn, since April 18, 1991, when requested by a defendant, DEA is required to search its personnel files for impeachment material. The DEA Office of Chief Counsel is responsible for responding to requests for impeachment material from the U.S. Attorneys' Offices. In order to comply with these requests, DEA/OPR searches its database to identify DEA personnel who have been the subjects of DEA/OPR investigations or reviews. During fiscal year 1995, DEA/OPR responded to requests for 815 Henthorn reviews. As a result of those reviews, DEA/OPR was required to produce 144 files for review by the Office of Chief Counsel, and 12 DEA Special Agents were removed from witness lists by federal prosecutors.



Statistical Summary of DEA/OPR Activities in Fiscal Year 1995



During the fiscal year, DEA/OPR opened a total of 371 new matters(9) and closed 292 matters. A total of 238 matters remained pending at the end of fiscal year 1995. The most common types of misconduct allegations during the year were unprofessional conduct, loss or theft of property, failure to report matters to DEA/OPR, and failure to follow instructions.

The number of new matters opened in fiscal year 1995 represented a significant increase over the prior fiscal year.(10) DEA/OPR reported that the increase in new matters was due to an increased emphasis and awareness among DEA employees of their responsibility to report apparent violations of the DEA Standards of Conduct or violations of law to DEA/OPR. In fiscal year 1995, DEA implemented a strict centralized reporting requirement for all allegations of misconduct, violation of DEA Standards of Conduct, or violation of criminal law. All such allegations must be reported immediately to DEA/OPR by telephone, followed by a written report within 24 hours. Based on employee discipline statistics, DEA/OPR concluded that managers who would previously have taken disciplinary action in cases of non-criminal employee misconduct without reporting the matter to DEA/OPR are now reporting the matter.

Misconduct allegations were substantiated in 78 of the 292 matters closed during fiscal year 1995. Ninety-two employees (76 special agents and 16 other employees) were disciplined for misconduct in fiscal year 1995 as a result of DEA/OPR investigations. This represented an increase of 26% over the 73 employees disciplined in fiscal year 1994 as a result of DEA/OPR investigations.

Examples of Matters Investigated by DEA/OPR in Fiscal Year 1995



Misuse of Official Position. DEA/OPR received an allegation that a DEA agent was misusing his official position to obtain immigration information regarding his girlfriend's former husband. It was also alleged that the DEA agent had made threats against the former husband. An investigation revealed that the agent had attempted several times to convince the Immigration and Naturalization Service to investigate the ex-husband and had attempted to obtain information about him, while representing that these contacts were for official purposes. The investigation also revealed that while testifying at a court hearing on a domestic matter involving the girlfriend, the DEA agent made statements concerning his official duties and displayed his DEA credentials although his testimony was not in an official capacity. In addition, DEA/OPR found that the agent had falsified information on his periodic security reinvestigation questionnaire regarding his relationship and cohabitation with his girlfriend, who was not a citizen of the United States. The agent was demoted and suspended without pay for 30 days.

Sexual Harassment. A female DEA employee complained that a male DEA agent had assaulted and fondled her in an elevator. The day after the incident, the agent attempted to apologize but, during the apology, made a remark that was interpreted as threatening. DEA/OPR inspectors responded to the complaint immediately and were able to make consensual recordings in which the agent acknowledged the offense. In addition, several other female employees came forward during the investigation and related other incidents of sexual harassment by the same agent. The agent was removed from his position. On appeal before the Merit Systems Protection Board, the agent agreed to a settlement in which he substituted a letter of resignation for the removal action.

Embezzlement of Government Funds. DEA/OPR opened an investigation when it was discovered that approximately $24,000 was missing from an imprest fund account. The investigation revealed that an agent and another employee embezzled money from the imprest fund and used it to buy cocaine and pay personal expenses. In addition, one of these two employees instructed a third employee to provide money from another imprest fund. The agent involved in the conspiracy resigned from DEA, cooperated in the investigation, and later pled guilty to embezzlement of government funds. He was sentenced to 3 years probation and 240 hours of community service. Based on information developed in the investigation, the second employee was indicted, convicted of conspiracy to embezzle government funds, and was sentenced to 21 months imprisonment and two years supervised release. The convicted employee was removed from DEA.

Maintaining Improper Relationship with Criminal Element. An investigation was opened based on a report from another law enforcement agency that a DEA agent had been seen at a bar on several occasions in the company of the president and members of a motorcycle gang that was under investigation. The complainant also provided information that the agent had been socializing with the motorcycle gang on the evening a homicide was committed and was possibly a witness to the homicide. The investigation confirmed that the DEA agent had knowingly socialized or associated with known gang members on several occasions. The agent's record disclosed that a similar allegation had been investigated in 1992, resulting in issuance of a letter of caution to the agent. The Board of Professional Conduct proposed his removal. The final decision on this matter is pending.

False Statements and Theft of Government Funds. A management official reported to DEA/OPR that he had received an inquiry from a bank about loan application documents submitted by a DEA agent. The bank sought verification of the agent's social security number, which had been altered on the agent's earnings statement. DEA/OPR conducted an investigation and found that the agent had falsified his earnings statement and other loan application documents to obtain bank financing for a home loan, an automobile loan, and cellular telephone service. At the same time, the agent was the subject of a separate investigation into allegations of theft of seized monies and voucher fraud. Based on the results of DEA/OPR's investigation, the agent was named in a nine-count indictment charging him with bank fraud, wire fraud, and false use of a social security number. The agent was placed on indefinite suspension without pay. The agent pled guilty to four counts of wire fraud, bank fraud, and false use of a social security number. Thereafter, as a condition of his plea agreement, the agent was interviewed by DEA/OPR, submitted to a polygraph examination, and confessed to the theft of $12,704 in seized monies and to knowingly committing voucher fraud. The agent was sentenced to 20 months incarceration and ordered to pay a $4,000 fine and $47,000 in restitution.



Conclusion



At the conclusion of fiscal year 1995, the twentieth year of operation for the Department of Justice Office of Professional Responsibility, this Office was functioning under a more focused jurisdictional mandate, but performing more diverse tasks. The Office grew during fiscal year 1995 and has continued to add attorneys during the current fiscal year to enable it to accomplish its expanded mission, including conducting expedited investigations of judicial findings of misconduct by Department attorneys, pursuing investigations to completion despite the resignation or retirement of the individual subjects of allegations, cooperating with state bar counsel on matters of mutual concern, and preparing summaries of findings for public disclosure in appropriate cases. We are pleased to report that in fiscal year 1995, Department employees, and particularly Department attorneys, overall continued to perform their duties in accordance with the professional standards expected of the Nation's principal law enforcement agency.

The understaffing problem in the FBI's Office of Professional Responsibility on which we commented in the fiscal year 1994 annual report remained a problem in fiscal year 1995, but was addressed in early fiscal year 1996 with the assignment of additional special agents to the FBI's program. We still have concerns regarding the sufficiency of the resources being devoted to FBI/OPR and will monitor the situation in fiscal year 1996. The DEA's Office of Professional Responsibility experienced significant growth and structural revision during the fiscal year, the results of which we will continue to monitor.
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----- footnotes ------

1. Attorney General Order No. 1931-94 dated November 8, 1994. The order superseded Attorney General Order No. 1638-92 dated December 11, 1992, which previously delineated the jurisdiction of OPR. The previous order provided that OPR was responsible for investigating allegations of misconduct which implicated the "prosecutive, investigative or litigative functions" of the Department.

2. As noted in our report for fiscal year 1994, OPR now counts for case-tracking purposes only matters that become full investigations handled by attorneys in this Office. Matters that do not become the subject of a full investigation, such as those closed after a preliminary review, are not included in the case-tracking system.

3. Although comparison with statistical data from previous years is difficult because of changes in OPR's jurisdiction and case-reporting methodology, OPR has generally maintained jurisdiction over attorney matters resulting from judicial findings of misconduct and judicial criticism. Consequently, we believe this comparison is generally valid.

4. 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.

5. In conducting misconduct investigations, OPR does not necessarily apply the same standards employed by the courts in determining whether a DOJ attorney engaged in "misconduct." The courts typically use a harm-to-the-defendant standard which has a single focus -- the defendant -- and frequently do not distinguish between intentional misconduct, the simple exercise of poor judgment, or conduct by others over whom the attorney has no control which affects the defendant. An OPR investigation focuses not only on the effect on the defendant, but all the surrounding facts and circumstances, including the state of mind of the subject DOJ attorney.

6. It should be noted that FBI/OPR cases in which the allegations are substantiated are not closed until the case is adjudicated by the Administrative Summary Unit, Personnel Division, or by the designated field office or divisional manager (see discussion below). Thus, the time involved in adjudication of substantiated matters may reduce the number of cases recorded as closed by FBI/OPR in a fiscal year.

7. This order was discussed at p. 15 of the Office of Professional Responsibility Fiscal Year 1994 Annual Report.

8. The total number of disciplinary actions exceeds the number of employees disciplined because some employees received more than one form of discipline, e.g., a suspension and a period of probation.

9. These figures represent matters designated Professional Responsibility (PR) Investigations by DEA/OPR. In addition to the 371 PR investigations opened in fiscal year 1995, DEA/OPR opened 183 general files. General files are opened when a preliminary review is necessary to determine whether sufficient information exists to warrant a PR investigation. Of the 183 general files opened in fiscal year 1995, 97 were converted to PR investigations and are included in the 371 PR files opened during the year.

10. DEA/OPR reported that the number of PR investigation files opened increased 68%, from 221 in fiscal year 1994 to 371 in fiscal year 1995. The number of matters opened in fiscal year 1994 that was included in OPR's Fiscal Year 1994 Annual Report was derived from case assignment criteria that are no longer used by DEA.