2021 Investigative Summary 4

Investigation of Alleged Prosecutorial Vindictiveness and Failure to Obey Court Order

A district court entered an order in a criminal case finding that the government engaged in vindictive prosecution by adding a new charge against a defendant after the court ordered a mistrial sua sponte; made misrepresentations during the grand jury proceedings to obtain the new charge and in its response to the defendant’s motion to dismiss the new charge; and failed to fully comply with a court order requiring the disclosure of certain information to the defense.   Two Assistant U.S. Attorneys (AUSA) prosecuted the case, one of whom retired during OPR’s investigation.    

Based on the results of its investigation, OPR concluded that the AUSAs did not commit professional misconduct by prosecuting the new charge against the defendant after the mistrial.  OPR’s investigation did not establish by a preponderance of the evidence that the AUSAs engaged in vindictive prosecution.  Instead, the evidence developed by OPR showed that, following the mistrial, the AUSAs and their supervisors evaluated the relevant legal and factual issues concerning the propriety of the new charge and concluded that the evidence was sufficient to obtain and sustain a conviction on the new charge and that the post-mistrial pursuit of the charge would not constitute vindictive prosecution.  OPR found that the decision to bring the new charge was an appropriate exercise of prosecutorial discretion.

In its order, the court criticized the government’s response to the defendant’s motion to dismiss the new charge and its failure to fully comply with an order requiring production of certain information to the defense.  The evidence developed by OPR showed that the lead AUSA was responsible for handling those aspects of the case.  Although the response and the presentation to the grand jury did not fully develop the government’s factual and legal arguments, OPR concluded that the preponderant evidence did not establish that the lead AUSA knowingly made a misrepresentation in the response to the motion to dismiss or in the presentation to the grand jury.  However, OPR found that the lead AUSA committed intentional professional misconduct in violation of Rules of Professional Conduct 3.4(c) and 8.4(d) because the prosecutor knowingly failed to fully comply with the court’s order requiring production of certain information.  OPR referred the matter to the Professional Misconduct Review Unit.