2021 Investigative Summary 2

INVESTIGATION OF ALLEGED FAILURE TO TIMELY PROVIDE DISCOVERY AND MISREPRESENTATIONS TO THE COURT AND DEFENSE COUNSEL

An Assistant U.S. Attorney (AUSA) self-reported to OPR a judicial finding that the AUSA violated the government’s disclosure obligations; misrepresented her compliance with those obligations; and misled the court regarding the admissibility of a cooperating defendant’s hearsay information during the sentencing phase of the case.  The court determined that the government failed to disclose documents showing that the government and a testifying agent doubted the reliability of the cooperating defendant whose information the agent relied on during testimony to support a sentencing enhancement against another defendant.

Based on its investigation, OPR concluded that the AUSA was obligated to disclose to the defense a sealed document filed with the court and another document expressing the agent’s negative view of the witness’s credibility and the reasons for that opinion.  OPR concluded, however, that the AUSA’s failure to timely produce the materials to the defense did not rise to the level of professional misconduct because the court, which was the finder of fact for the sentencing issue, was aware of one of the documents, as well as the government’s general negative view of the witness, and because the AUSA disclosed to the defense the negative factual information that formed the basis for the government’s views about the witness’s credibility.  Furthermore, OPR did not find evidence that the AUSA intentionally suppressed the materials relating to the witness or that the AUSA made any knowing misrepresentations or misleading statements to the court or defense counsel. 

Nevertheless, OPR’s investigation revealed that had the AUSA conducted the standard discovery practices she normally employed, she would have located and produced the documents to the defense.  However, the AUSA never conducted a search for additional discoverable material before the sentencing hearings, despite receiving repeated reminders from the defense and the court.  The AUSA’s failure to utilize appropriate discovery practices and search for discoverable material before the sentencing hearings was an exercise of poor judgment, and it resulted in the court sanctioning the government and excluding witness testimony at the sentencing hearings.