2021 Investigative Summary 9

INVESTIGATION OF ALLEGED FAILURE TO COMPLY WITH DISCOVERY OBLIGATIONS; FAILURE TO KEEP THE CLIENT REASONABLY INFORMED; AND LACK OF CANDOR TO THE COURT

Following a report from a U.S. Attorney’s Office, OPR investigated allegations that an Assistant U.S. Attorney (AUSA) entered into an oral cooperation agreement without approval and failed to timely inform the court, defense counsel, and USAO supervisors about the oral cooperation agreement.  The AUSA also failed to timely disclose a supplemental written cooperation agreement with that same witness, when the witness testified in a later trial, even though the supplemental agreement contained impeachment material.  During OPR’s investigation, a district court issued an order criticizing the AUSA’s conduct during the trial.

OPR’s investigation revealed that the AUSA had entered into a supplemental written cooperation agreement with a codefendant who later testified as a prosecution witness at the defendant’s trial.  On or about the same time, the AUSA entered into a separate oral cooperation agreement with that same codefendant, which modified the written cooperation agreement by limiting the witness’s cooperation obligations.  Although the AUSA informed the defense about the supplemental written cooperation agreement, the AUSA did not provide a copy of the agreement or disclose all its terms to the defense.  During the codefendant’s change of plea hearing, the change of plea court was informed about the supplemental written cooperation agreement but not about the oral cooperation agreement.  Furthermore, the codefendant later testified as a prosecution witness at the defendant’s trial, but the court and the defense were not informed about the oral cooperation agreement until the codefendant was testifying.

Based on the results of its investigation, OPR concluded that the AUSA engaged in reckless professional misconduct by entering into the oral cooperation agreement and failing to inform USAO supervisors about the oral cooperation agreement in violation of Rule of Professional Conduct 1.4(a), and Department and USAO policy.  OPR also concluded that the AUSA engaged in reckless professional misconduct during the codefendant’s change of plea hearing when the AUSA failed to correct a misleading statement and failed to inform the change of plea court about the oral cooperation agreement in violation of Rules of Professional Conduct 8.4(c) and (d); an attorney’s obligations under Napue v. Illinois, 360 U.S. 264 (1959); and an attorney’s duty of candor to the court.  Likewise, OPR concluded that the AUSA engaged in reckless professional misconduct by failing to disclose the oral cooperation agreement to the defendant before trial in violation of Department and USAO policies.  Finally, OPR concluded that the AUSA demonstrated poor judgment but did not engage in professional misconduct when failing to timely disclose all the necessary terms of the supplemental written cooperation agreement to the defense.  In evaluating the AUSA’s conduct, OPR considered that although not disclosing all of the relevant terms of the agreement, the AUSA did inform the defense, before trial, that the witness had entered into a written cooperation agreement. 

OPR referred its findings to the Professional Misconduct Review Unit.