2023 Investigative Summary 1

INVESTIGATION OF ALLEGED IMPROPER CONTACT WITH A REPRESENTED PERSON AND LACK OF CANDOR TO THE COURT AND DEFENSE COUNSEL

Two Assistant U.S. Attorneys (AUSA) self-reported to OPR that a trial court criticized the prosecution team based on findings that the government violated the defendants’ Sixth Amendment rights by obtaining confidential and privileged defense information from a covert cooperator who had been authorized by the government to continue to communicate with represented co-defendants.  OPR initiated an inquiry, which it subsequently converted to an investigation.  During its investigation, OPR advised the U.S. Attorney’s Office (USAO) of information discovered by OPR indicating that evidence and representations previously provided to the court and the defense by the government were not accurate, which led the USAO to file a notice to correct the record.  Following extensive post-conviction proceedings, the court granted a new trial.    

OPR concluded that the lead AUSA recklessly violated the rules of professional conduct by allowing the government’s covert cooperator to continue communicating with his represented co-defendants about the subject matter for which they were represented by counsel; recklessly violated the duty to competently represent the client by allowing the cooperating defendant to continue interacting with his represented co-defendants and by failing to supervise the cooperating defendant’s actions; recklessly violated the obligation to keep the client informed by failing to advise her supervisors and seek their advice prior to instructing the cooperating defendant to continue interacting with his represented co-defendants; knowingly violated the obligation to keep the client informed by failing to accurately inform her supervisors about her role in advising the cooperating defendant to continue interacting with his represented co-defendants; and knowingly violated the duty of candor by misrepresenting to defense counsel that a case agent—rather than the AUSA—was responsible for instructing the cooperating defendant to continue interacting with his represented co‑defendants.

OPR concluded that the second AUSA on the prosecution team violated the rules of professional conduct and the general duty of candor toward the court by knowingly and intentionally eliciting false and misleading testimony from case agents and by knowingly and intentionally failing to correct the false and misleading testimony.  OPR also concluded that she violated the duty to keep her client informed by intentionally failing to inform her supervisors that she had received a document from the cooperating defendant, which was contrary to the testimony she had elicited from the case agents.  The second AUSA resigned during OPR’s investigation. 

OPR referred its findings to the Professional Misconduct Review Unit.