2021 Investigative Summary 8

INVESTIGATION OF FAILURE TO COMPLY WITH DISCOVERY OBLIGATIONS AND IMPROPER AUTHORIZATION OF WITNESS ATTENDANCE FEES

A U.S. Attorney’s Office reported that a court made mid-trial findings that the two Assistant U.S. Attorneys (AUSAs) prosecuting the case had not timely complied with the government’s discovery obligations and the court dismissed with prejudice one of several counts.  Following a subsequent evidentiary hearing, the court further criticized the government for additional discovery failures, and the government eventually dismissed all remaining charges against the defendants. 

OPR’s investigation established that the AUSAs committed professional misconduct in reckless violation of Department of Justice discovery policies when they did not timely disclose to the defense that certain financial and non-financial benefits had been provided to a witness, instead only producing the benefits information after the witness’s testimony on re-direct examination revealed information that led defense counsel to pursue further questioning, which ultimately led to disclosure of the benefits. 

OPR additionally established that the AUSAs had signed certifications authorizing a witness to be paid pretrial attendance fees for several days during which the witness did not in fact attend pretrial proceedings or meetings.  OPR concluded that the AUSAs committed professional misconduct in reckless violation of their obligation under 5 C.F.R. § 2635.101(b)(9) to “protect and conserve Federal property and . . . not use it for other than authorized activities.”  OPR did not find evidence warranting a conclusion that the AUSAs intended to falsely certify the benefits, but found instead that the AUSAs acted recklessly when they failed to ensure that they understood the meaning of the terms on the form and that the information to which they were certifying was accurate.

With respect to numerous other alleged discovery violations, OPR’s investigation determined that the evidence was insufficient to establish that either AUSA committed professional misconduct.  OPR instead concluded as to some discovery issues that the AUSAs exercised poor judgment in not adequately managing certain aspects of pretrial discovery involving extensive digital evidence.  With respect to an allegation that the AUSAs failed to comply with a court order requiring disclosure of records associated with a victim, OPR found that the AUSAs acted appropriately. 

Both AUSAs have resigned from the Department for reasons unrelated to OPR’s investigation.  OPR referred the matter to the Professional Misconduct Review Unit.