2014 Investigative Summary 3

Investigation of Alleged Failure to Honor Use Immunity Agreement; Misrepresentation to the Court

OPR investigated a DOJ attorney for eliciting testimony at trial about statements made by the defendant during a pretrial interview "proffer session," in violation of a letter agreement between the government and the defendant prohibiting the government from using the statements at trial during its case-in-chief.

After the trial, the defense filed motions for a new trial and for judgment of acquittal, asserting in both motions that the government's use of the defendant's immunized statements violated the terms of the letter agreement. The court granted the motion for a new trial, and the defendant later pleaded guilty.

OPR concluded that the DOJ attorney violated the terms of the letter agreement by eliciting  testimony about immunized statements made by the defendant during the proffer session, and that he acted in reckless disregard of his obligations under the Due Process Clause and state bar rules prohibiting an attorney from alluding at trial to matters not supported by admissible evidence. In addition, in responding to the defendant's post-trial motions, the DOJ attorney made baseless and unfounded factual and legal arguments in an attempt to persuade the court to sustain the conviction.

OPR determined that the attorney committed intentional professional misconduct by violating his duty of candor to the court, by making false statements to a tribunal, and by engaging in conduct involving misrepresentation.

OPR referred its findings to the PMRU for consideration of possible discipline. The PMRU upheld OPR's findings of professional misconduct, suspended the DOJ attorney without pay for seven days, and authorized OPR to refer its findings to the state bar. OPR referred its findings of professional misconduct to the appropriate state bar disciplinary authority.