2023 Investigative Summary 14

INVESTIGATION OF ALLEGED FAILURE TO COMPLY WITH DISCOVERY OBLIGATIONS AND LACK OF CANDOR

OPR received misconduct allegations stemming from a prosecution of defendants for securities fraud-related offenses.  During a mid-trial colloquy with the court about the government’s plea allocution communications with counsel for cooperating witnesses, an Assistant U.S. Attorney (AUSA) asserted that she did not instruct counsel for one of the cooperating witnesses about what the witness should say in the plea allocution.  Many months later, the AUSA discovered a draft plea allocution for that cooperating witness, which the prosecutor herself had edited, indicating that the AUSA’s earlier statement to the court was inaccurate.  The district court was informed of the document and issued a ruling indicating that it would grant the defendants’ motion for a new trial on the grounds that the government had withheld exculpatory evidence about its communications with counsel for the cooperating witness regarding the plea allocution and had made misleading and erroneous statements to the court.

Based on the results of the investigation, OPR concluded that neither the AUSA nor her co-counsel intentionally or recklessly violated their discovery obligations.  OPR also concluded that although the AUSA’s representations to the court about her interactions with the attorney for a cooperating witness about that witness’s plea allocution were inaccurate, the inaccuracy resulted from an inadvertent failure of recollection, was not intentional or knowing, and did not rise to the level of recklessness.  OPR also concluded that the AUSA did not violate the rules of professional conduct by failing to disclose more promptly to the court a document that contradicted the statements she had made during the mid-trial colloquy because the AUSA did not immediately recognize that the document contradicted her earlier statements, and she made a prompt disclosure as soon as she realized that her prior statements may have been inaccurate.