2016 Investigative Summary 11

Investigation of Alleged Failure to Comply with Plea Agreement Policies; Failure to Comply with Sentencing Recommendation Policy;
Dishonest and Deceitful Conduct

A  DOJ component notified OPR that a DOJ attorney failed to obtain supervisory approval for more than 25 plea agreements he negotiated in connection with several long-term drug investigations, each involving multiple co-defendants. A number of the defendants were charged with drug trafficking crimes that exposed them to mandatory-minimum sentences, pursuant to 21 U.S.C. §§ 841(b)(1)(A) and (B).

The unauthorized plea agreements involved, among other things:

(1) charging decisions that either lowered or eliminated certain defendants' mandatory-minimum sentencing exposure;

(2) commitments by the government to file motions pursuant to § 5K1.1 of the U.S. Sentencing Guidelines (the Guidelines), requesting downward departures from the advisory sentencing ranges specified by the Guidelines for certain defendants;

(3) sentencing concessions by the government - including recommendations for probation - resulting in variances outside the advisory Guidelines ranges specified for certain defendants;

(4) recommendations for specific sentences, pursuant to Fed. R. Crim. P. 11(c)(1)(C), resulting in variances outside the advisory Guidelines ranges specified for certain defendants.

In some of the cases, the sentencing concessions fell 25 percent or more below the applicable Guidelines range sentences. In a separate case involving drug and firearms charges that exposed the defendant to consecutive mandatory-minimum sentences, the DOJ attorney acted contrary to the approval he had obtained to resolve the case pursuant to Rule 11(c)(1)(C) with a specific, binding sentencing recommendation of 5 years' imprisonment. Instead, at the defendant's sentencing, the DOJ attorney recommended a probationary sentence.

OPR concluded that the attorney engaged in intentional professional misconduct by knowingly and purposefully violating his obligation, pursuant to Department policies, to obtain supervisory approval for each of the plea agreements he entered into, and by recommending probation in the case for which he  had obtained approval to recommend a sentence of 60 months' imprisonment. In addition, OPR concluded that the attorney engaged in intentional professional misconduct, in violation of applicable state bar rules, because the attorney knowingly and purposefully failed to abide by his client's directives to obtain supervisory approval for the plea agreements, and because the attorney knowingly and purposefully failed to consult with his client about decisions that were material to the government's prosecution objectives.

Finally, OPR found that the attorney intentionally misled his component into believing that he had handled his cases in the manner required by applicable Department policies to accomplish the government's prosecution objectives. OPR's investigation revealed that, because the attorney disagreed with those objectives, he knowingly acted in contravention of the policies to accomplish objectives he personally believed were preferable to those directed by his client's authorized representative.

OPR found that, in doing so, the attorney intentionally engaged in an ongoing pattern of dishonest and deceitful conduct. OPR's findings have been referred to the PMRU.