2020 INVESTIGATIVE SUMMARY 3

INVESTIGATION OF ALLEGED FAILURE TO DISCLOSE TERMS OF A PLEA AGREEMENT TO THE COURT AND FAILURE TO CORRECT FALSE TESTIMONY

Following an Assistant U.S. Attorney’s (AUSA) self-report, OPR investigated an allegation that he failed to disclose, in both a defendant’s written plea agreement and in the change-of-plea hearing, an additional agreement with the defendant pertaining to the dismissal of related pending state charges and the applicability of a federal sentencing enhancement.  The allegation arose when the AUSA filed a pleading years after the defendant’s guilty plea in which the AUSA characterized the dismissal of the state charges as an actual negotiated, mutually accepted agreement.

Based on the results of its investigation, OPR concluded that the parties had reached, at a minimum, an understanding that the defendant’s pending state charges would be dismissed by the local prosecutor’s office in exchange for the defendant stipulating to a sentencing enhancement, and that the understanding should have been disclosed to the court.  OPR concluded, however, that the AUSA did not engage in professional misconduct because he did not believe the negotiations concerning the state charges were binding on the local prosecutor’s office or that they differed from the U.S. Attorney Office’s customary plea practices concerning defendants with pending state charges.  OPR also considered that the AUSA had no reason to conceal from the court that the defendant expected the pending state charges to be dismissed, as such an understanding would not have undermined the voluntariness of the guilty plea.  Finally, OPR also took into account the fact that the AUSA only offered to contact the local prosecutor’s office at the defense attorney’s request, after the defense attorney reported having difficulty getting calls returned, and the AUSA thus viewed his role as just a conduit of information to the defense.

However, OPR concluded that the AUSA exercised poor judgment by not informing the court of the defendant’s understanding and expectations with respect to the federal sentencing enhancement and dismissal of the pending state charges.  In the period leading up to the guilty plea, those issues were continuing points of negotiation between the parties, and the AUSA should have recognized that they were important considerations for the defendant.  Furthermore, it would have been easy to disclose the understanding in just a few sentences in the written plea agreement and in the oral statement of the plea provisions during the change-of-plea hearing, and there was no reason not to do so.