2015 Investigative Summary 8

Investigation of Alleged Misrepresentation/Misleading the Court and Defense Counsel

A DOJ attorney self-reported to OPR that, following a hearing on the defendants' motion to dismiss a complicated international narcotics case due to outrageous government conduct, the court ruled that the government knew or should have known that foreign law enforcement witnesses had received payments from the United States government for their work on the underlying investigation and that the DOJ attorney failed to make a timely disclosure of that information to the defense.

Prior to the trial, defense counsel requested that the government provide information as to whether its foreign law enforcement witnesses had received payments from the United States government. The government did not respond to the request or to a related motion to compel filed by the defense.

During a witness preparation meeting prior to the hearing on the motion to compel, the government learned that the foreign law enforcement witnesses had received money from the United States government for operational expenses. At the hearing on the motion to compel, the DOJ attorney denied defense claims that the foreign law enforcement officer witnesses had received payments from the United States and asserted that while the witnesses worked in cooperation with United States law enforcement, they were paid only by their own government.

On three separate occasions following the hearing and prior to the start of trial, three different law enforcement agents informed the DOJ attorney that the foreign law enforcement officers received payments from the United States. The DOJ attorney did not provide the information to the court or defense counsel or correct her previous statement to the contrary. During cross-examination at trial, a foreign law enforcement witness testified that she had received payments from the United States for her work on the case and that she could spend the money at her discretion.

Based on the results of its investigation, OPR concluded that the DOJ attorney committed intentional professional misconduct by knowingly failing to correct false statements of material fact she made to the court and by making statements to the court that were not based on a reasonably diligent inquiry. Although OPR did not conclude that the DOJ attorney committed professional misconduct in violation of her obligations to disclose witness impeachment material, OPR concluded that the DOJ attorney acted in reckless disregard of the broader disclosure obligations imposed by DOJ policy by failing to locate and disclose the impeachment material.

OPR referred its misconduct findings to the PMRU, which upheld OPR's findings of professional misconduct but reduced the finding of intentional misconduct to reckless misconduct. The PMRU imposed a 10-day suspension without pay and authorized OPR to notify the DOJ attorney's state bar of its findings. OPR subsequently reported the matter to state bar disciplinary authorities.