Failure To Investigate "DaProcess" of Public Corruption

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PRESENTED TO
~n appreciation of tireless efforts and unselfish endeaoorsw behalf of the members of the Honor
Legion of the Police Department of the City of New York. We acknowledge with gratitude and appreciation
this support of our aims and ideals and the enthusiastic cooperation in our programs, which have contributed
immeasurably to the welfare of New York's Finest.
In testimony Whereof we have caused this Certificate to be signed by the Presiding Officer of this
Legion and the Seal of the Honor Legion to be affixed hereon.
t]Jrcsented flUs 7
Failure To Investigate: DaProcess Of Public Corruption Under Color Of Law
TITLE 18 > PART I > CHAPTER 1 > § 4 TITLE 28 > PART IV > CHAPTER 85 > § 1361
§ 4 Misprision of felony § 1361. Action to compel an officer of the United States to
perform his duty
Whoever, having knowledge of the actual commission of a
felony cognizable by a court of the United States, conceals The district courts shall have original jurisdiction of any
and does not as soon as possible make known the same to action in the nature of mandamus to compel an officer or
some judge or other person in civil or military authority employee of the United States or any agency thereof to
under the United States, shall be fined under this title or perform a duty owed to the plaintiff.
imprisoned not more than three years, or both.
Table of Contents…………………………………………………………………………………………………………………. Page 2
U.S. Marshals Service False Statements & Obstruction Documents…………………………………………….. Pages 3 - 50
Subpart E–4—Office of the Inspector General………………………………………………………………………….. Pages 51 - 52
 § 0.29c Reporting allegations of employee misconduct
FOIA Violations……………………………………………………………………………………………………………………. Pages 53 - 64
Subpart A - Procedures for Disclosure of Records Under the Freedom of Information Act ……………… Page 65
 Sec. 16.10 Preservation of records
Chief Deputy U.S. Marshal (INA) Matthew F. Fogg……………………………………………………………………. Pages 66 - 71
 Title VII Verdict
U.S. Marshal Service Investigations Where The Outcome Has No Statement Of “Privacy Issues”
Former U.S. Deputy Marshal Sentenced to 24 Months On Civil Rights Related Charges…………………. Pages 72 - 73
United States of America vs. former Deputy U.S. Marshal David Floyd Brodhagen ………………………… Pages 74 - 87
Former Deputy U.S. Marshal Sentenced to 24 Months in Federal Prison ……………………………………… Pages 88 - 89
Documents Supporting My Legal Claims Of USDOJ Violations Of Federal Statute & OIG Policy
CRS Report for Congress Order Code 98-808 A…………………………………………………………………………. Pages 90 - 108
 Perjury Under Federal Law: A Brief Overview
CRS Report for Congress Order Code RS22783………………………………………………………………………….. Pages 109 - 114
 Obstruction of Justice: An Abridged Overview of Related Federal Criminal Laws
U.S. Dept. of Justice Office of the Inspector General Evaluation and Inspections Division ………………. Pages 115 - 173
 Review of the United States Marshals Service Disciplinary Process: Report Number I-2001-11
Hon. Michael B. Mukasey U.S. Attorney General: Oversight Of The U.S. Department Of Justice………. Pages 174 - 211
 http://daprocess.com  http://daprocess.com/verified.html
Mr. Robert Reynolds
New York NY
mrreynolds1@gmail.com
To Whom It May Concern, Hon. Senator Charles E. Schumer & Mr. Reynolds
I submitted legitimate allegations of illegal electronic surveillance of myself possibly being

conducted by members of the U.S. Marshals Service to the U.S. Marshals Service Office of Inspection. You
can review the existence of the technology here: Synthetic Telepathy. As per federal statute:
TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1809

§ 1809. Criminal sanctions
(a) Prohibited activities

A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or
having reason to know that the information was obtained through electronic surveillance not
authorized by statute.
(b) Defense
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law
enforcement or investigative officer engaged in the course of his official duties and the electronic
surveillance was authorized by and conducted pursuant to a search warrant or court order of a court
of competent jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or
imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense
was an officer or employee of the United States at the time the offense was committed.
I received a document dated September 19, 2005 from former Chief Inspector Yvonne Bonner of
the U.S. Marshals Service Office of Inspection (Internal Affairs) stating that they would conduct an official
investigation but “I would not be entitled to know the outcome due to privacy issues” not reflected by
statute of law in violation of federal statute:

§ 1810. Civil liability
An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in
section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic
surveillance or about whom information obtained by electronic surveillance of such person has been
disclosed or used in violation of section 1809 of this title shall have a cause of action against any
person who committed such violation and shall be entitled to recover—
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation,
whichever is greater;
(b) punitive damages; and
(c) reasonable attorney’s fees and other investigation and litigation costs reasonably
incurred.
1
After waiting over a period of thirty days I received no further communication from the U.S.
Marshals Service at which time I contacted the office of the Hon. Senator Charles E. Schumer for
assistance. His New York office submitted a request to William E. Moschella, former Assistant Attorney
General for the Office of Legislative Affairs U.S. Department of Justice requesting their direct response.
Senator Schumer’s office received a response dated December 27, 2005 from John J. McNulty, III
former Chief of the U.S. Marshals Service Office of Congressional Affairs which contained false statements
at which time John J. McNulty, III stated that the U.S. Marshals Service had not & would not investigate my
allegations contradicting the previous letter from the U.S. Marshals Service internal affairs division. This
was & is in violation of USDOJ policies & procedures & violates federal statutes:
Thus making his statements absent of a rational connection between the facts found and the choice
made. A clear error of judgment; an action not based upon consideration of relevant factors and so is
arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law or if it was taken without
observance of procedure required by law 5 USC 706(2)(A). This was and is in violation of federal law as well as
U.S. Department of Justice policies & procedures.
TITLE 18 > PART I > CHAPTER 19 > § 371

§ 371. Conspiracy to commit offense or to defraud United States
If two or more persons conspire either to commit any offense against the United States, or to
defraud the United States, or any agency thereof in any manner or for any purpose, and one or more
of such persons do any act to effect the object of the conspiracy, each shall be fined under this title
or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor
only, the punishment for such conspiracy shall not exceed the maximum punishment provided for
such misdemeanor.

§ 706. Scope of review
TITLE 18 > Part I > CHAPTER 47 > § 1001

§ 1001. Statements or entries generally
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the
executive, legislative, or judicial branch of the Government of the United States, knowingly and
willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false,
fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves
international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years,
or both.
(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for
statements, representations, writings or documents submitted by such party or counsel to a judge or
magistrate in that proceeding.
(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall
apply only to—
(1) administrative matters, including a claim for payment, a matter related to the procurement of
property or services, personnel or employment practices, or support services, or a document
required by law, rule, or regulation to be submitted to the Congress or any office or officer within
the legislative branch; or
(2) any investigation or review, conducted pursuant to the authority of any committee,
subcommittee, commission or office of the Congress, consistent with applicable rules of the House
or Senate.
2
§ 1505. Obstruction of proceedings before departments, agencies, and committees

§ 1510. Obstruction of criminal investigations

§ 1515. Definitions for certain provisions; general provision

§ 1519. Destruction, alteration, or falsification of records in Federal investigations and bankruptcy
How is it legally possible that John J. McNulty, III former Chief of the U.S. Marshals Service Office
of Congressional Affairs contradicted the former Chief Inspector Yvonne Bonner of the U.S. Marshals
Service Office of Inspection in writing three times. Twice to the Hon. Senator Charles E. Schumer a U.S.
Senator who sits on the U.S. Senate Committee on the Judiciary Subcommittee on Crime & Drugs which
has oversight of the U.S. Marshals Service & once to U.S. Congressman the Hon. Charles B. Rangel & no
corrective action has been taken by the U.S. Department of Justice whatsoever?
Senator Schumer sent a letter to the U.S. Department of Justice dated June 14, 2005. The U.S.
Marshals Service responded to him in writing by stating that they spoke with me directly after receipt of
my complaint suggesting that the issue had been resolved prior to Senator Schumer’s involvement. My
complaint was dated April 29, 2005. If you review the documents you will see that the U.S. Marshals
Service actually called me on June 27, 2005 that’s two weeks after the date of Senator Schumer’s letter
to the U.S. Department of Justice! The U.S. Marshals Service did call me but it was two weeks after the
date of the Senator’s letter in an effort to make it seem as if they did something. A blatant documented lie
this is all in my U.S. Marshals Service FOIA.
Since the U.S. Marshals Service has not been asked any direct questions by any federal authority
they were empowered to respond in the least responsive form of their choice. I have the supporting
documentation which proves that the U.S. Marshals Service has willfully lied to Senator Schumer &
Congressman Rangel in an effort to prevent further inquiry into this matter by their offices.
I have also contacted Chief William D. Snelson of the U.S. Marshals Service Office of Inspection by
way of USPS certified mail with return receipt requesting his immediate assistance. He refuses to respond.
He was also contacted by Deputy Inspector Paul K. Martin of the Office of the Inspector General by letter
dated January 30, 2008 the U.S. Marshal Service still refuses to reply. These are professional federal law
enforcement agencies. There are too many acts of malfeasance for this to be regarded as anything less than
premeditated obstruction of justice I will pursue this matter until it has been given the full attention of the
judiciary.
I would like to thank Senator Schumer & Congressman Rangel for the constituent letters that
they previously sent on my behalf but I have endeavored to get them to take a more proactive stance
based upon the fact that the U.S. Marshals Service has no intention of correcting this matter & the belief
that the U.S. Department of Justice will not assist me in any action that would initiate an investigation of
itself resulting in statutory federal fines & penalties.
The First Amendment does not afford me the opportunity to lie willfully about nonexistent crimes.
How is it legally possible that from 2005 certified letters were sent to my U.S. Senators, Congressman, U.S.
Attorney General & the Director of the FBI proving that two senior members of the USMS contradicted
themselves & the USDOJ attorneys seem oblivious to the fact that one of them has to be lying? I have a
website with detailed information & I’m not interviewed or questioned by anyone pertinent. My letters are
received some are responded to with a mere thank you letter or ignored & not forwarded to the Office of
the Inspector General which is standard procedure & nothing is investigated?
3
Office of the Inspector General
Semi-Annual Report to Congress (October 1, 2007-March 31, 2008)
Investigations
During this reporting period, the OIG received 163 complaints involving the USMS. The most common
allegations made against USMS employees included job performance failure, official misconduct and force,
abuse, and rights violations. The OIG opened 10 investigations and referred other allegations to the USMS's
Office of Internal Affairs for review.
At the close of the reporting period, the OIG had 22 open cases of alleged misconduct against USMS
employees. The following is an example of a case involving the USMS that the OIG's Investigations Division
handled during this reporting period:
 An investigation by the OIG's San Francisco Area Office led to the arrest and guilty plea of a USMS supervisory
deputy marshal on a charge of making a false statement. The investigation determined that the supervisory
deputy marshal submitted an application for promotion to the USMS in which he falsely claimed he had a 4-
year degree from a university and included false transcripts with the application. When interviewed, the
supervisory deputy marshal admitted he purchased the degree and transcripts online from a "diploma mill"
for $703. He subsequently retired from the USMS. Sentencing is pending.
The OIG recently investigated a complaint of a false statement made by a supervisor of the U.S.
Marshals Service. Yet my complaint to the Office of the Inspector General in regards to the U.S. Marshals
Service lying to Congress was regarded in a prejudicial manner. Obviously the training & qualifications of
the USMS employees is subject to review. So by the reluctance of the Office of the Inspector General to
investigate I am forced into a conflict of interest requesting assistance from the USMS which is the agency
allegedly responsible for committing these crimes against me by their employees who are “arrested as
untrustworthy & unqualified” to work for federal law enforcement as indicated by the articles below.
1: Director Resigns 2: White House Dismisses Marshal 3: Pulls Gun On Two 4: Discharges Firearm 5: Lies In Drug Cover-Up
6: Gave Gun To Felon 7: Marshal Shoots First
TITLE 28 > PART IV > CHAPTER 85 > § 1361

§ 1361. Action to compel an officer of the United States to perform his duty
The district courts shall have original jurisdiction of any action in the nature of mandamus to compel
an officer or employee of the United States or any agency thereof to perform a duty owed to the
plaintiff.
My current complaint is in reference to the obstruction of justice & malfeasance conducted by the
U.S. Department of Justice & its agencies in covering up my investigation. The U.S. Marshals Service first
closes my case on 07/07/05 without informing me & without forwarding my complaint to the Office of
the Inspector General in violation of USDOJ AG Order No. 2835-2006. Then the U.S. Marshals Service
Office of Inspection responds to my follow-up inquiry by sending me a letter dated 09/19/05 stating they
will “now” investigate my allegations but “Due to privacy issues you are not entitled to know the outcome
of the investigation” which is obstruction. Included are documented cases where USMS employees were
investigated & the outcome was not private so why is my case private?
Then the former Chief of Congressional Affairs of the U.S. Marshals Service lies three times, twice
to a U.S. Senator & once to a U.S. Congressman denying the very existence of the secret investigation
which is obstruction of justice at the highest level. Yet it’s all disregarded by the USDOJ.
I called the New York division of the Federal Bureau of Investigation on May 06, 2008. After
explaining my situation in explicit detail they instructed me to contact Senator Schumer & Congressman
Rangel’s office again as the Federal Bureau of Investigation seems to be powerless to enforce any federal
statutes of law. So what division of the U.S. Department of Justice is responsible for investigating
complaints of illegal electronic surveillance surely it’s not the U.S. Marshals Service?
4
Federal Bureau of Investigation
Public corruption is one of the Federal Bureau of Investigation’s top investigative priorities—behind only
terrorism, espionage, and cyber crimes. Why? Because of its impact on our democracy and national security. Public
corruption can affect everything from how well our borders are secured and our neighborhoods protected…to verdicts
handed down in courts…to the quality of our roads and schools. And it takes a significant toll on our pocketbooks, too,
siphoning off tax dollars. Learn more here about our national program and local investigations.
Yet they refuse to take action even after I have submitted proof that the U.S. Marshals Service
violated federal statutes of law. In response to my FOIA request to the Federal Bureau of Investigation I
received a letter stating that they have no documents responsive to my request. This is improbable as I
have USPS signature confirmation & certified mail receipts sent to:
 Director Robert S. Mueller, III (Washington DC)  Assistant Dir Michael A. Mason (Washington, DC)
 Deputy Director John S. Pistole (Washington DC)  Assistant Director Mark J. Mershon (New York NY)
 Assistant Director Candice M. Will (Washington DC)
As part of my FOIA appeal I forwarded copies of these USPS confirmation receipts to the U.S.
Department of Justice Office of Information & Privacy. I received a response from Associate Director
Janice Galli McLeod of the Office of Information & Privacy where she confirmed that the Federal Bureau
of Investigation could not find any documents responsive to my request. Although she had USPS
certifications proving that there was a legal discrepancy her office took no further action.
In a letter dated July 05, 2005 from John J. McNulty, III former Chief of the U.S. Marshals Service
Office of Congressional Affairs sent to the Hon. Senator Charles E. Schumer. John J. McNulty, III states that
I sent my complaint directly to the previous Director & Deputy Director of the U.S. Marshals Service which
is correct but those letters were not included within the U.S. Marshals Service FOIA request documents I
received. So what did the Federal Bureau of Investigation & the USMS do with my complaints? This is a
violation of the USDOJ FOIA and Privacy Act Regulations:
Subpart A Procedures for Disclosure of Records Under the Freedom of Information Act
Sec. 16.10 Preservation of records.
Each component shall preserve all correspondence pertaining to the requests that it receives under
this subpart, as well as copies of all requested records, until disposition or destruction is authorized
by title 44 of the United States Code or the National Archives and Records Administration's General
Records Schedule 14. Records will not be disposed of while they are the subject of a pending
request, appeal, or lawsuit under the FOIA.
Michael J. Garcia the U.S. Attorney for the state of New York reviews all of these felony violations
& tells me that my concerns are "duly noted" & he continues to receive taxpayer compensation. The U.S.
Department of Justice Criminal Division Public Integrity Section tells me that the U.S. Marshals Service &
the Federal Bureau of Investigation were the correct agencies to contact when these two agencies have
already participated in the malfeasance indicated above. Then they further instruct me to contact the
Office of the Inspector General if I have issues with the U.S. Marshals Service & the Federal Bureau of
Investigation. Clearly proving that they did not review any of the information I sent them as it indicates I
already did those things. More lack of due diligence, pure incompetence & total lack of respect for federal
statute of law.
After reviewing all of these documented violations of federal statute of law. Carlton L. Peeples the
Chief of the Federal Bureau of Investigation Civil Rights Unit states that allegations of false statements to
Congress, public corruption, FOIA & Title 50 electronic surveillance violations warrant no action by the
FBI”. Then he instructs me to contact an attorney. Why would a Federal Bureau of Investigation Chief
suggest I contact an attorney if my allegations warrant no action? He is aware of federal law therefore that
makes his statements arbitrary & capricious under federal statute of law.
5
Title 18, U.S.C., Section 242
Deprivation of Rights Under Color of Law
This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation,
or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or
immunities secured or protected by the Constitution and laws of the U.S.
This law further prohibits a person acting under color of law, statute, ordinance, regulation or
custom to willfully subject or cause to be subjected any person to different punishments, pains, or
penalties, than those prescribed for punishment of citizens on account of such person being an alien
or by reason of his/her color or race.
Acts under "color of any law" include acts not only done by federal, state, or local officials within the
bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their
lawful authority; provided that, in order for unlawful acts of any official to be done under "color of
any law," the unlawful acts must be done while such official is purporting or pretending to act in the
performance of his/her official duties. This definition includes, in addition to law enforcement
officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security
Guards, etc., persons who are bound by laws, statutes ordinances, or customs.
Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results
or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives,
or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts
include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit
aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any
term of years or for life, or both, or may be sentenced to death.
I individually contacted former Director Benigno G. Reyna & Deputy Director Donald A.
Gambatesa, Director John F. Clark & former Deputy Director Robert E. Trono, Deputy Director Brian R.
Beckwith, General Counsel Gerald M. Auerbach, former Chief Inspector Yvonne Bonner & Chief Inspector
William D. Snelson. Only Yvonne Bonner replied & my FOIA states the OIG wasn’t contacted.
In a letter dated 07/05/05 to the Hon. Senator Charles E. Schumer from John J. McNulty, III former
Chief of the U.S. Marshals Service Congressional Affairs Division he stated that “Mr. Reynolds wrote to the
DOJ, & the Director & Deputy Director of the U.S. Marshals Service”. Yet he makes no mention of them
forwarding my complaint to the U.S. Marshals Service Office of Inspection or the Office of the Inspector
General as required by USDOJ policy. So who made the determination that there would not be an
investigation the USDOJ, Director or Deputy Director of the U.S. Marshals Service?
I sent my first complaint “directly” to the USMS Office of Inspection on 04/29/05 & to date I have
only received two replies both from the USMS Office of Inspection. One letter states my complaint was
received & the other states that there “is an internal investigation”. Someone lied violating § 1001.

§ 4 Misprision of felony
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United
States, conceals and does not as soon as possible make known the same to some judge or other
person in civil or military authority under the United States, shall be fined under this title or
imprisoned not more than three years, or both.
Some employees of U.S. Department of Justice act like that of a rabid dog. Their incompetence is
astounding. I would expect more from those who are elected by the people to enforce our federal laws. I
am officially requesting Congressional intervention. I will continue to pursue this matter until my
testimony is heard within a state or federal court of law & all guilty parties are accounted for &
prosecuted to the full extent of the law.
6
Excerpt: USDOJ Complaints & Misconduct Investigations
5. Resolution of Misconduct Investigations
In evaluating the evidence and making credibility determinations, the decision maker should consider all
relevant factors. There should not be any automatic judgment that a credibility determination cannot
be made where the only or principal information about an incident is the conflicting statements of an
officer and a civilian. Similarly, there should be no automatic preference for an officer's statement over
a civilian's statement, or vice versa.
Consistent with the applicable statutes, rules and labor agreements, law enforcement agencies should
appropriately discipline any officer who is the subject of a substantiated misconduct allegation regarding
excessive force, false arrest, improper search or seizure, discriminatory law enforcement, or
discriminatory behavior in the workplace, or who fails to report misconduct by another officer. The
agency also should appropriately discipline any officer: found guilty or who enters a guilty plea in a
criminal case regarding on-duty conduct; or who is found in a criminal proceeding to have intentionally
committed misconduct.
In deciding the appropriate discipline for each officer who is the subject of a substantiated misconduct
allegation, the agency should consider the nature and scope of the misconduct, and the involved officer's
history of misconduct investigations and discipline.
Regardless of whether a misconduct allegation is substantiated and regardless of whether discipline is

ordered, the agency should additionally consider whether to require training, counseling, or other
remedial non-disciplinary measure for officers who are the subject of a misconduct investigations. Where
the substantiated misconduct involves excessive force, false arrest, improper search or seizure,
discriminatory policing, or discriminatory behavior in the workplace, discipline typically should be
accompanied by appropriate remedial non-disciplinary measures.
After a misconduct complaint is resolved, the law enforcement agency should, consistent with
applicable rules and statutes, inform the complainant, in writing, of the disposition and results of the
investigation, the reasons for the disposition, and what discipline was imposed, if any.
John J. McNulty, III former Chief of the USMS Office of Congressional Affairs has acknowledged
violating standard departmental policy in his letter dated July 05, 2005 to the Hon. Senator Charles E.
Schumer where he states I was called with the intent to adjudicate the results of my complaint but the
excerpt above states that the complainant should receive a written response of any determination made.
Not a phone call. How many complainants do they call to resolve allegations?
Former Chief Inspector Yvonne Bonner of the USMS Office of Inspection has acknowledged
conspiring to violate the same departmental protocols within her letter to me dated September 19, 2005
where she states in writing “Due to privacy issues you are not entitled to know the outcome of the
investigation” clearly violating the U.S. Department of Justice policy indicated above. Why would there be
a concern for “privacy” if their agency has not violated any federal statutes of law? Are all investigations
conducted by the USMS Office of Inspection adjudicated in secrecy or just mine?
If my allegations are determined to be true how would a grand jury be able to indict those
responsible & how would the judiciary be able to judge any & all accused parties if the investigation is
adjudicated in secrecy? How then would the U.S. Department of Justice be able to comply with the
following federal statute?

§ 1810. Civil liability
Yvonne Bonner is now the Acting Marshal for Boston & under federal investigation by the Office
of the Inspector General for possible ethics violations involving a separate incident.
 1. Yvonne Bonner Investigation  2. Yvonne Bonner Investigation
7
Yet the U.S. Department of Justice has still refused in writing to take any action to assist me. This
matter has to be investigated by an unbiased third party. Any further direct investigation by the U.S.
Marshals Service should be considered prejudicial & tainted as their credibility is suspect. I have requested
official federal oversight by the Senate / House of all parties concerned including myself.
On June 09, 2008 I called the Washington, DC office of the Inspector General & was transferred to
the New York division at which time I was placed on speaker phone so that I could converse with the duty
officer & his supervisor. They retrieved copies of my documentation & I gave them a step by step run down
of everything which transpired. After concluding that the U.S. Marshals Service had made some unethical
& highly illegal discrepancies I was told that the OIG had previously made a decision to forward my
complaint back to the U.S. Marshals Service & that the Office of the Inspector General would take no
further action on my behalf.
I then informed OIG that I had previously sent all of the contradictory documentation to Yvonne
Bonner, Director John F. Clark, Deputy Director Brian R. Beckwith, General Counsel Gerald M. Auerbach &
the current Chief Inspector William D. Snelson USMS Office of Inspection via certified mail yet they all
refuse to respond.
Knowing that the former Chief of the Office of Inspection stated in writing that “I would not be
entitled to know the outcome due to privacy issues” & the former Chief of Congressional Affairs has
stated in writing that “We believe that we have previously responded to Mr. Reynolds claims sufficiently.
The USMS does not intend to respond to him in the future unless Mr. Reynolds provides specific evidence
supporting his claims” Those claims now being that they have just contradicted themselves & lied to a U.S.
Senator & Congressman. Are they now expected to acknowledge it to me?
Why does the OIG continue to insist that I contact the U.S. Marshals Service to resolve this issue as
if I have some federal authority? Despite my documented evidence that I have contacted them & the fact
that the U.S. Marshals Service already stated in writing that although my issues have never been officially
resolved they would continue to ignore my complaint which is obstruction of justice. Who does the Office
of the Inspector General suggest I continue to contact within the U.S. Marshals Service?
I am willing to testify in any U.S. state or federal court of law that my allegations are true to the
best of my knowledge.
USDOJ AG Order No. 2835-2006
The Attorney General shall ensure by regulation that any component of the Department of Justice
receiving a nonfrivolous allegation of criminal wrongdoing or administrative misconduct by an
employee of the Department of Justice, except with respect to allegations described in subsection
(b)(3) [matters within the investigative jurisdiction of the Department of Justice Office of
Professional Responsibility], shall report that information to the Inspector General.
All of my supporting documents can be downloaded immediately from http://daprocess.com from

the menu button labeled USDOJ Documents. Also review http://daprocess.com/verified.html.
A Proud Member Of
Thank you,
Mr. Robert A. Reynolds
8
Office of General Counsel
Gerald M. Auerbach
General Counsel
(202) 307-9054
U.S. Marshals Service Ethics and Integrity

The ethics program in the U. S. Marshals Service is administered by the Office of General
Counsel. Within the Office of General Counsel are members of the Ethics Team who advise
employees, provide ethics training, collect and review public and confidential financial disclosure
reports filed by employees required to complete such reports on an annual basis, and complete
ethics reports, as required, that are sent to the Department of Justice and the Office of
Government Ethics.
The U. S. Marshals Service is committed to the highest standards of ethical behavior as a

law enforcement agency entrusted with important authorities on behalf of the American public.
To uphold these high ethical standards, all U. S. Marshals Service employees are made aware of
important ethics rules and policies on a continuous basis, and many receive annual ethics training.
A larger number of employees from all 94 districts and divisions request, receive, and rely on
ethics advice and assistance provided by the Ethics Team attorneys.
Basic Tenets
One of the most important concepts of public service is that federal officials act only in
the public interest without consideration of their private interests. In situations where there is
or may be a conflict of interest between these two competing interests, U. S. Marshals Service
employees must either disqualify themselves from acting in a matter or eliminate the private
interest. Another imperative is that no federal official may misuse his/her position.
U. S. Marshals Service employees are regularly reminded of the rules in this regard and
enforcement of these rules is rigorous. We are committed to upholding the highest levels of
integrity of our law enforcement officers in particular and our administrative employees. To
that end, the U. S. Marshals Service expends whatever resources are necessary to provide ethics
training, ethics advice, and if needed, forceful enforcement.
Within these ethics web pages there are ethics resources for both members of the public
and employees alike. In the links found at the left margin we have included Office of Government
Ethics regulations, Department of Justice supplemental regulations, U. S. Marshals Service training
materials. These resources provide the basic framework of the ethics rules, regulations and
policies essential for compliance with the extensive federal ethics program implemented to ensure
public confidence in the conduct of federal officials.
Gerald M. Auerbach, General Counsel
Ethics Officer: Robert Marcovici, Associate General Counsel

Other Ethics Team Members: Edward Bordley, Associate General Counsel, Jessica Born, Associate
General Counsel and Kevin Forder, Associate General Counsel
9
U. S. Department ofJu stice
United States Marshals Service
Operations Support Division
Office OfIn spection
File #3600
May 11,2005
Mr. Robert Reynolds
New York , NY
Dear Mr. Reynolds:
We received your complaint letter dated April 29, 2005. Please be assured we take all
complaints submitted very seriously and your complaint will be processed in compliance
with the Department of Justice and United States Marshals Service policies and
procedures. Thank you very much for bringing this matter to our attention.
-Sj ncerely,
~~~
Chief Inspector
Office of Inspection
cc: File
US Marshals Service
FOIA Document
u.s. Department of Justice
Office ofCongressional Affairs
Washington, DC 20530-1000
July 5,2005
The Honorable Charles E. Schumer

United States Senator
757 Third Avenue, Suite 1702
New York , New York 10017
Dear Senator Schumer:
This is in response to your recent letter to William E. Moschella, Assistant Attorney

General for the Office of Legislative Affairs in the Department of Justice (DOJ), on behalf ofMr.
Robert Reynolds. Mr. Reynolds wrote to the DOl, and the Director and Deputy Director of the
United States Marshals Service (USMS) alleging he was being electronically surveilled by the
USMS .
The USMS spoke with Mr. Reynolds directly after receipt of his letter. He was
informed that the USMS has no hardware or software systems capable of performing the level
of surveillance described by him. Further, he was informed that he is not the subject of any
surveillance by the USMS. During the conversation, Mr. Reynolds was asked to provide
additional information regarding his allegations. He was unable to do so. To date, he has not
submitted any additional information.
If Mr. Reynolds can provide any substantive information regarding his allegations, please
be assured we will address his complaints appropriately.
Sincerely,
John J. McNulty ill

Chief, Office of Congressional Affairs
US Marshals Service
FOIA Document
U. S. Department of Justice
United States Marshnls Service
Operations Support Division
Office OfInspection
File #36 00
September 19, 2005
Mr. Robert Reynolds
New York, NY
Dear Mr. Reynolds:
We have received your second letter dated August 29, 2005. Our office has received
all the necessary information from you to proceed with this matter. Due to privacy ,
issu es you are not entitled to know the outcome of the investigation. As I stated in my
previous letter to you , dated May 11, 2005, we take all complaints submitted very
seriously and your complaint will be processed in compliance with the Department of
Justice and Un ited States Marshals Service policies and procedures. Thank you again
for bringing this matter to our attention .
Yvonne Bonner
Chief Inspector
cc : File
u.s. Department of J ustice
Office of Congressional Af f airs
December 27, 2005
The Honorable Charles E. Schumer

United Stat es Senator
757 Third Avenue, Suite 1702
New York, New York 10017
Dear Senator Schumer:
Thi s is in response to your most recent letter, on behalf of Mr. Robert Reynolds, to
William E. Moschella, Assistant Attorney General for Legislati ve Affairs in the Department of
Justice (DOJ). Mr. Reynolds has written numerous letter s to various departments of the federal
gov ernment, and to you, alleging he is being electronically surveilled by the U.S. Marshals
Service (USMS). Mr Reynold 's claims are wholly unsubstantiated.
The USMS previously has assured Mr. Reynolds that the Service has no hardware or
software systems capable of performing the level of surveillance described by him. Further, he
was told that he is not the subject of any surveillance by the USMS. He refuses to believe us.
The USMS has asked Mr. Reynolds to provide evidence to substantiate his allegations. Since he
has not submitted any plausibl e information, the USMS is not investigating his allegations.
We believe that we have previously responded to Mr Reynold 's claims sufficiently. The
USMS does not intend to respond to him in the future unles s Mr. Reynolds provides specific
evidence supporting his claim s.
If we may be of further assistance to you, please do not hesitate to contact the USMS
Office of Congressional Affairs.
Sincerely,
John 1. McNulty III

Chief, Offic e of Congressional Affairs
BARACK OBAMA COM M ITT EES:
ILLIN OIS ENVIRONMENT AND

PUBLI C WORKS
FOREIGN RELATIONS
tinitro ~tatf5 ~fnatf VETERAN S' AFFAIRS
WASHINGTON, DC 20510
December 29,2006
Robert Reynolds
New York , New York
Dear Robert:
Thank you for your recent correspondence to Senator Obama's Chicago office. Although we are
committed to assisting all constituents, we regret that we are unable to satisfy out-of-state
requests at this time . Therefore I have taken the liberty of forwarding your letter to Senator
Hill ary Rodham Clinton of New York for further investigation and assistance. I trust the office
will respond directly to you in a timel y fashion about your concerns.
cerely ,
~
.
( '\ "\
1/ \
~/ l?/~
\ / .
''----.-J ehmfer Mason
Director of Constituent Services
Office of U.S. Senator Barack Obama
230 S. Dearborn S1., Suite 3900
Chicago, IL 60604
W A SH IN GT O N OFFICE C H ICA GO OFFic e SP RING R ELD OFFICE MARION OFFICE Q U AD ClTJES OFFICE
71 3 H ART S ENATE O FFICE BUI LD IN G 230 S. DEARBORN 60 7 EAST ADAMS 70 1 NORTH C OURT STREET 1911 52ND AV ENUE
WA SHINGTON , DC 20510 S UITE 3900 S UITE 1520 MARION, IL 629 59 M OCINE, IL 61 265
OFFICE (20 2) 224-2854 CHICAGO, IL 60604 SPRINGFIELD, IL 62701 OFFICE (6 18) 997-2402 OFFICE (309) 736-1217
FAX (202) 228-42 60 OFFICE (3 12) 886 -3506 OFFICE (217) 49 2- 589 0 FAX (6 18) 997 - 285 0 FAX (309) 736-123 3
FAX (3 12) 886-3514 FAX (217) 492 -5099
us. Department of Justice
Office a/Congressional Affairs
October 3,2007
The Honorable Charles B. Rangel

Member, U.S. House of Representatives
163 West l2S th Street
New York, New York 10027
Dear Congressman Rangel:
This is in response to your letter on behalf of Mr. Robert Re ynolds to former

Assistant Attorney General for Legislative Affairs William E. Moschella. Mr. Reynolds
claims to be a victim of invasion of privacy and possible identity theft.
As you may know, Mr. Reynolds has previously contacted the Department of
Justice and the U.S. Marshals Service (USMS) regarding his allegations of being under
electronic surveillance. He is not the subj ect of any surveillance by the USMS and ,
further, we have assured him that the USMS does not have hardware or so ftware systems
capable of performing the level of surveillance he describes. The USMS has requested
evidence to substantiate his allegations, but Mr. Reynolds has not provided any. Because
he has not submitted any plausible information, the USMS is not investigating his
allegations.
I hope this information is helpful in responding to Mr. Reynolds.
Sincerely,
~~~
John J. McNulty III
Chief, Office of Congressional Affairs
CHARLES 8.RANGEL 2 3 5 4 RAYBURN HOUSEOFFICE BUILDING
15TH CONGRESSIONAL DISTRICT WASHIN ON, DC 2 0 5 1 5-3215
NEW VORK T E d N E : (202) 225-4365
COMMIlTEE: DISTRICT OFFICE:

M S . V I V I A N E. J O N E S
WAYS AND MEANS DISTRICT ADMINISTRATOR
RANKING MEMBER
1 6 3 WEST1 2 5 STREET
~ ~
JOINT COMMITTEE ON TAXATION
NEW VORK, N V 10027
PLEASE RESPOND TO
OFFICE CHECKED
December 6,2007
Inspector General Glenn A. Fine

Office of the Inspector General for
U.S. Department of Justice
950 Pennsylvania Avenue, N.W., Room 4706
Washington, D.C. 20530
Re: Concern of Robert Reynolds
New York, New York

Dear Mr. Fine:
Mr. Reynolds has again been contacted our office regarding ongoing
concerns with the US Marshals Service. For your information and
guidance I again enclose copies previous correspondence.
I regret the lateness of this inquiry, but our office has suffered a
backlog in response because of the heavy volume of constituent
requests. .'
In view of these concerns, I would appreciate your advising me of the
current status of this matter.
Thank you very much.

'l
District Administrator
Encl.
cc: Mr. Reynolds /
Civil Rights Division
MJK:amp:kdh Criminal Section - PHB

DJ 144-51-0 950 Penn ey Lvania Avenue, N. W.
Washington, DC 20530
FEB 07 2008
Mr. Robert Reynolds
New York, New York
Dear Mr. Reynolds:
-The Criminal Seeti~-in receipt of _y o u r lett_er _cta t _e d

October 28, 2007, in which you allege that you have been the
subject of illegal, electronic surveillance by the u.S. Marshals
Service. We apologize for our delay in responding.
The Criminal Section of the Civil Rights Division is

responsible for enforcing federal criminal civil rights statutes.
This enforcement activity involves the investigation of alleged
deprivations of civil rights under color of law, generally police
brutality (18 U.S.C. §§ 241 and 242). Remaining enforcement
efforts involve the investigation of allegations of forcible
interference with specifically enumerated federally protected
activities based upon race, color, religion and national origin
(18 U.S.C. §§ 245, 247 and 42 U.S.C. § 3631), as well as
allegations of human trafficking, involuntary servitude or
peonage (18 U.S.C. §§ 1581, 1584, 1589-1594), and allegations of
forcible interference with reproductive clinics under the Freedom
of Access to Clinic Entrances Act (18 U.S .C. § 248).
We have carefully reviewed the information which you

furnished and determined that your complaint does not involve a
prosecutable violation of federal criminal civil rights statutes.
Accordingly, we are unable to assist you.
-2
Inasmuch as you feel that your civil rights were violated,

you may wish to contact private counsel, the nearest legal aid
program or the local bar association to determine what remedies
are available to y o u .
We regret that we cannot be of further assistance to you.
Sincerely,
Mark J. Kappelhoff
Section Chief
Criminal Section
BY'9a.
i~ L--
ng la M. Parks
_P9_r 1__9 9 LSpecialist
Crlminal Section
Washington, D.C. 20535-0001
March 3 , 2 0 0 8
New York, New York
Dear Mr. Reynolds:
We acknowledge receipt of your letter dated January 18,

2008, which you directed to Candice M. Will, Assistant Director,
Office of Professional Responsibility, Federal Bureau of .
Investigation (FBI). Your correspondence was referred to the
Initial Processing Unit (IPU), Internal Investigations Section
(IIS), Inspection Division (INSD), Federal Bureau of Investigation
(FBI), for our review. The IPU\IIS is the FBI entity that
provides thorough and timely review and investigation into
complaints of criminality or serious misconduct against FBI
employees.
You alleged that you submitted valid claims that you
were the target of illegal surveillance by the United States
Marshals Service (USMS). You contend that the USMS provided you
assurance that your concerns regarding this matter would be
officially addressed by their agency. However, you claimed that
you were later notified by USMS that you were not entitled to know
the results of their investigation. You requested the FBI's
assistance %n this matter.
We have reviewed the information you provided and
determined that, inasmuch as you provided no allegations of
misconduct against any FBI employee, we will take no further
action in this matter. We consider this matter closed.
Initial Processing Unit
Virginia State Bar

Eighth and Main Buildin g
707 East Main Street, Suite 1500
Richm ond, Virginia 232 19-2800
Telephone: (804) 775-0500
Faesimile:(804) 775-0597 TDD (804) 775-0502
March 13, 2008
PERSONAL AND CONFIDENTIAL
Robert A. Re ynolds
New York, NY
Re : Your information about Gerald Matthew Auerbach
Dear Mr. Reynolds:
The Virginia State Bar recei ved your correspondence. Vir ginia lawyers must follow certain rules
of conduct called the Virginia Rules of Professional Conduct. The bar disciplines lawyers who
violate these rules. This office reviewed your correspondence to ascertain whether it described
conduct that might violate a pro vision of the Rules.
We have determined that we will not take further action on your matter for the following
reason(s): The Rules of Professional Conduct do not regulate Mr. Auerbach in his performance
of his duties as General Counsel of the U.S. Marshals Service. The fact that Mr. Auerbach has
not taken action on your complaint regarding actions by members of the Marshals Service does
not indicate that Mr. Auerbach has acted unethically. You may wish to consult with an attorney
to determine what legal remedies might be available to you. We will take no action in this
matter.
Please note that the bar has limited authority and cannot address all situations through its
disciplinary process. Please review the enclosed Pamphlet for general information about the
bar's process. For more information about the bar 's disciplinary process please visit our website
at : www.vsb .org.
Very truly yours,
~ W·'WCt/Vt~.
Mary W. Martelino
Assistant Intake Counsel
Enclosure: Pamphlet
United States Attorney
Southern District ofNew York
United States District Courthouse

300 Quarropas Stree t
White Plains , Ne w York 10601
March 2 0, 2008
Robe r t Reynol d s
Ne w Yo r k , NY
De a r Mr . Rey no l ds :
Th is Off ic e is i n r e c eipt of you r ema i l c or r e sp o n d e n c e

reg arding your comp l a i n t a g ai n st the Unit ed Sta t e s Mar sh als
Se rv i c e . You r c on c erns hav e b ee n duly not ed, but after c a r e f u l l y
r evi ewing th e i nf ormation prov i de d , it h as b ee n determi ned that a
Federa l c r imina l i n v esti g a ti o n by this Off ic e is not wa rra nt ed at
thi s time.
Th a n k you f or t a ki n g th e time t o co n tac t thi s Of f i c e .
Ve r y tru l y yo u rs ,
MIC HAEL J . GARCIA

Uni t e d Sta tes At to r ney
By :
'M~~
aeyl3 I7.
Fe J~
i n z ig --=...,
Ch ie f , Whit e Pl ain s Di vi si on
Mr. Robert Reynolds March 24, 2008
New York NY
Michael J. Garcia
Southern District of New York
Criminal Division USDOJ
1 St. Andrews Plaza
New York City, NY 10007
Dear U.S. Attorney Garcia,
This is in response to your letter dated March 20, 2008. At which time you stated in writing that
you have “duly noted” my allegations of crimes, criminal and civil committed against myself by
employees of the U.S. Marshals Service. I would like to thank you for that acknowledgement as it adds a
level of credibility of my due diligence within my testimony to a federal grand jury.
You also stated that after a careful review of the information provided that you have
determined that although I have pursued this matter since April 29, 2005 and proven beyond a shadow
of a doubt that the U.S. Marshals Service has lied to Congress. That a federal criminal investigation is still
not warranted at this time? Yet you make no mention of the civil implications. So for my clarification you
have made this decision based upon which criteria:
You are stating that without investigation that I have submitted false statements to your office
in violation of Title 18 > Part I > Chapter 47 > § 1001 Statements or entries generally and you
have chosen not to prosecute me?
You are stating that my allegations are true and utilized your broad and sweeping discretionary
authority thus allowing the U.S. Marshals Service to have blanket immunity therefore allowing
them to continue to facilitate the appearance of an ongoing conspiracy?
You have determined that the U.S. Marshals Service has the authority to conduct a secret
investigation based upon violations of my civil rights under color of law by employees of their
agency. Utilizing executive privilege and you are acknowledging that such an investigation does
not violate any statue of federal law or my civil rights in any manner under color of law?
You have determined that you are fully aware that the former section Chief of the U.S. Marshals
Service Office of Inspection, Yvonne Bonner has been contradicted in writing by U.S. Marshals
Service Chief of Congressional Affairs, John J. McNulty, III. Whereas he states to a U.S. Senator
and Congressman in writing that the secret investigation being conducted in writing by the U.S.
Marshals Service Office of Inspection does not and has never existed. Although the former
section Chief of the U.S. Marshals Service Office of Inspections, Yvonne Bonner say’s it does
which constitutes obstruction of justice. Duly noting that the U.S. Marshals Service Chief of
Congressional Affairs, John J. McNulty, III has stated in writing that I received a call from the U.S.
Marshals Service and there is a cooberating transcript of the phone call which shows that the
transcript was forwarded to the former section Chief of the U.S. Marshals Service Office of
Inspection, Yvonne Bonner. Proving that they are both fully aware that they have contradicted
themselves to Congress.
You are stating that the U.S. Marshals Service has made contradictory statements but the
policies and procedures of the U.S. Department of Justice allows employees to make false
statements to Congress if those statements in fact allow them to avoid the statutory penalties
involved under federal statue of law with particular reference to Title 50 > Chapter 36 >
Subchapter I > § 1810 Civil liability?
1
You are stating that you are aware of
Title 50 > Chapter 36 > Subchapter I > § 1809(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the
offense was an officer or employee of the United States at the time the offense was committed.
You are aware that they have also violated
TITLE 18 > PART I > CHAPTER 1 > § 2 - § 2. Principals

TITLE 18 > PART I > CHAPTER 1 > § 3 - § 3. Accessory after the fact
Title 18 > Part I > Chapter 1 > § 4 Misprision of felony
Title 18 > Part I > Chapter 13 > § 242 Deprivation of rights under color of law
Title 18 > Part I > Chapter 73 > §§§ 1510, 1515, 1519 Obstruction of Justice
Title 28 > Part IV > Chapter 85 > § 1361 Action to compel an officer of the United States to
perform his duty
I would appreciate a specific response in writing within thirty days of receipt of this letter.
The Attorney General shall ensure by regulation that any component of the Department of Justice receiving a
nonfrivolous allegation of criminal wrongdoing or administrative misconduct by an employee of the Department of
Justice, except with respect to allegations described in subsection (b)(3) [matters within the investigative
jurisdiction of the Department of Justice Office of Professional Responsibility], shall report that information to the
Inspector General.
Thank you, Cc:

Civil Rights and Civil Liberties Complaints
Mr. Robert A. Reynolds 950 Pennsylvania Avenue, N.W.
Room 4706
2
Washington, D. C. 20535-0001
March 31, 2008

New York, New York

Dear Mr. Reynolds:
We acknowledge receipt of your additional letter dated
March 6 , 2008, which you directed to the Initial Processing Unit
(IPU), Internal Investigations Section (IIS), Inspection Division
(INSD), Federal Bureau of Investigation (FBI), for our review. As
you are aware, the IPU\IIS is the FBI entity that provides
thorough and timely review and investigation into complaints of
criminality or serious misconduct against FBI employees.
You again claimed that you were the victim of civil
rights violations perpetrated by the United States Marshals
Service. You requested assistance from the FBI, specifically to
forward your complaint to the appropriate entity within the FBI.
As you were previously advised, inasmuch as you
provided no allegations of misconduct against any FBI employee,
IPU will take no further action. However, we have forwarded your
correspondence to the FBI's New York Office ( N Y O ) for their review
and appropriate attention. Please be advised that any further
correspondence regarding this matter should be directed to the
NYO, 26 Federal Plaza, New York, New York, 10278. We consider
this matter closed.
unit Chief -
Initial Processing Unit
Washington, D.C.20535-0001
April 29, 2008
Mr. Robert Reynolds
New York, NY
Dear Mr. Reynolds:
This letter is in response to the correspondence

that you addressed to the FBI.
The allegations that you have brought to our attention

do not warrant any action by the FBI. You may wish to pursue
these issues with the assistance,ofan attorney.
Sincerely yours,
Carlton L. Peeples
Chief, Civil Rights Unit
Criminal Investigative Division
Criminal Division
Washington, DC 20530-000]
May 13, 2008
Mr. Robert Reynolds
New York, NY
Dear Mr. Reynolds:
This responds to your letter dated February 11, 2008 to the Department of Justice,
Criminal Division, Public Integrity Section. Your letter indicates that you have provided your
information to the U.S . Marshal's Service and the FBI. These are the appropriate offices for
handling your concerns with the U .S. Marshal's Service. .
If you have concerns with the way your complaint has been handled, you may wish to
forward a complaint to the Department of Justice, Office of the Inspector General (OIG), which
is responsible for conducting investigations regarding misconduct by employees of the
Department of Justice. The mailing address is 950PennsylvaniaAvenue,N.W., Suite 4322 ,
Washington, D.C. 20530 . In the event that the OIG finds evidence of any criminal wrongdoing,
it will bring that information to the attention of the Department of Justice.
Thank you for writing to Department of Justice.
Sincerely,
Correspondence Management Staff

Office of Administration
2204 RAY8URN HOUSE OFFICE BUILDING CHA IRM A N
W ASHINGTON. DC 20515 - 0530 COM M ITT EE ON OVERSI GHT
(202) 225-3 976 AND GOVE RN M ENT REFORM
www.ho use .govlwaxman
MEMBER
DIS TRICT O FFICE:

8436 WEST THIRD STREET
(tCongre55 of the mtntteb ~tate5 COMM ITT EE ON
EN ERGY A N D CO MM ERCE
f!.Jou~e of l\epre~ entatibe~

SUITE 600
Lo s A NGELES. CA 90048-4183
(323) 651- 1040
(8 18) 878-7400
(310) 652 -3095
~a5bington, i)QC 20 515-0530
HENRY A. WAXMAN
3 0 T H DI ST RICT, CALIFORNIA
May 29, 2008
Mr. Robert Re ynold s
New York, New York
Dear Mr. Re ynolds :
Thank you for contacting me about your complaint again st the Department of Ju stice and
U.S. Marshals Servi ce. Although this is not a matter for Oversight and Government Re form
Committee review, I appreciate your takin g the time to get in touch to share your concern.
With kind regards , I am
Sincerely,
HAW:pd
CHARLES B. RAN GEL D 2354 RAYBURN HOUSE OFFICE BUILDING
15 T H C O NG RESS ION A L DI ST RICT W ASHINGTON, DC 2051 5-321 5
N EW YORK T ELEPHONE: (202) 22 5-4365
DISTRICT OFFICE:
COMMITIEE
WAYS A N D MEAN S ~ongre55 of the Wniteb ~t ate5 MS. VIVI A N E. JONES
~
DISTRICT ADMINISTRATOR
RANKINGMEMBER
JOINT COM M ITIEE ON TA XATI ON j!}ousc of l\cptcscntatibcs 163 W EST 125TH S TREET
NEW YO RK, NY 10027
mta5bington ~ iDQI: 20515-3215 TELEPHONE: (2 12) 663 - 3900
PLEASE RESPON D TO
O Ff iCE CHECKED
June 12, 2008
Deputy Inspector General Paul K. Martin
Office of the Inspector General for
950 Pennsylvania Avenue, N.W. , Room 4706
Re: Continued Concern of Robert Reynolds
New York, New York

D ear Mr. Martin:
Thank you for your Janu ary 30th response to Congressman R angel regarding Mr.
Reynolds' ongoing concerns with the US Marshals Service. Despite the response,
Mr. Reynolds continues to be diss atisfied with the response and the referral of his
concerns back to the U.S. Marshals Service . He has contended that he was not
responded to truthfully and the full investigation promised was not launched. I
believe I m ay have forwarded your office copies ofMr. Reynold's original letter to
our office, dated February 14, 2007. I am tak ing the liberty of sending another
cop y of this correspondence in which Mr. Reynolds cites, chapter and verse, his
grievance.
In view of these concern s, I would appreciate your office following through on

Mr. R eynolds' complaint, rather than return it to the Marshals Service.
Thank you very mu ch for your kind consideration.
()jreI Y,
Vivi . Jones
Dis . t Administrator
Enc!. /
cc: Mr. Reynolds
U. S. Department of Justice
July 15, 2008
Robert Reynolds
New York, NY
Dear Mr. Reynolds:
The purpose of this letter is to acknowledge receiptof your email correspondence to the
Department of Justice regarding your complaint involving the U.S. Marshals Service: .
The Office of the Inspector General (OIG) receives a high volume of complaints every
day for review and handling. Because the OIG has limited staff and resources we are not
able to investigate every complaint. All of your previous correspondence, as well as your
most recent email, relating to these issues have been referred to the appropriate
management officials at the U.S. Marshals Service for review. The OIG has not opened
an investigation into this matter and considers the matter closed. Therefore, any further
correspondence regarding this matter should be directed to:
U.S. Marshals Service
VA
I hope this answers any questions you have relative to this matter.
'- Roger M. Williams

Special Agent in Charge
for Operations
Investigations Division
STATE OF NEW YORK
UNIFIED COURT SYSTEM
FIRST JUDICIAL DISTRICT
SUPREME COURT, CIVIL BRANCH
60 CENTRE STREET
NEW YORK, NEW YORK 10007-1474
1-646-386-3170
FAX 1-212-374-1803
ANN T. PFAU JACQUELINE W . SILBERMANN

Chief Administrative Judge Administr ativ e Judge
First Judicia l Distric t
Supreme Court, Civil Branch
JOAN B. CAREY
Deputy Chief Admini strativ e Judge
New York City Court s
July 22, 2008
New York, New York
Dear Mr. Reynolds:
This will acknowledge receipt of your letter dated July 21, 2008.
The U.S. lVlarshals Service Office is not within the scope of my

authority.
r--,Very truly yours,
/ ) ,!1/ } ' / / ', /J~ / ;.

CL--'~J Vc-£&C/--;'e.-t' (... ....,/
'r
Jacqueli ne W. Silbermann
Administrative Judge
Supreme Court, Civil Branch
JWS:mfd

Southern District ofNew York
86 Chambers Street
Nell' York, New York 10007
July 28, 2008
Mr. Robert Reynolds
New York, NY
Dear Mr. Reynolds :
The Civil Rights Unit ofthe United States Attorney's Office for the Southern District
of New York has received your letter dated January 8, 2008 concerning the United States Marshal's
Service.
We have reviewed the information that you submitted. Based upon the information
you have provided , we have concluded that the facts you described do not appear to implicate a
violation ofthe federal civil rights laws over which this Office has jurisdiction. This conclusion does
not represent an opinion as to the merits of any individual claims that you may have .
Please be advised that your letter or complaint to this Office has no effect on any
statute of limitations that might apply to your claim. By sending a letter or filing a letter or
complaint with this Office, you have not commenced a lawsuit or a legal or administrative
proceeding, and this Office has not initiated a lawsuit or a proceeding on your behalf.
Sincerely,
MICHAEL J. GARCIA
By:
DAVID J. KENNEDY
Chief, Civil Rights Unit
SOCIAL SECURITY
Robert A. Reynolds
New York , New York
Dear Mr. Reynolds:
This is in response to your June 17, 2008 letter, in which you allege wrongdoing by the United
States Marshals Service (USMS) and request a review by the Investigations Committee of the
President's Council on Integrity and Efficiency (PCIE). I am writing to you on behalf of
Inspector General Patrick O'Carroll, Jr., who serves as chair of the PCIE Investigations
Committee.
I regret the difficulties you have encountered; however, the USMS is not under the PCIE' s
jursidiction, and as such, neither the PCIE nor its members have the authority to review or take
action on allegations against the USMS. I am forwarding your letter to the Department of Justice
Office of the Inspector General, which has jurisdiction over allegations of wrongdoing by the
USMS . I trust that they will review your allegations and take any appropriate action.
Sincerely,
d ~ R7-r-r- -toY
L
J~a~aSher
Deputy Counsel to the Inspector General
SOCIAL SECUR ITY A DMlt'\lIST RATION BALT IMORE MD 2123 5-000 1

Michael J. Sullivan
United Slat es Attorney
District ofMassachusetts
Ma in Reception : (617) 748-3 100 J ohn Joseph Mo ak ley Uni ted Sta les Co urtho use
1 Courthouse Way
Suue 9200
BaSIOn. Mass ac h use tts 02210
August 15, 20 08
Robert A. Reynolds
New Yor k , New Yo r k
Dear Mr. Reynolds:
Please be advis ed that this Office is in receipt of y o u r

letter dat ed July 26, 200 8, 2 008 . Since y o u r matter whi ch you
write about is not within the jurisdiction of Massachusetts, your
letter will be kept on file and no further action will be taken
by this Office at this time.
Sincerely, r-: .:
\ . 0/ ~&-: /~
Pat~icia M. Carlozzi
Pa ral egal Specialist
Michael J. Garcia Mr. Robert Reynolds August 19, 2008
U.S. Attorney
1 St. Andrews Plaza New York NY
New York, NY 10007
Dear U.S. Attorney Garcia,
I submitted signed documents to your office which proved under federal statute of law that
when confronted with the same information in regards to my allegations against the U.S. Marshals
Service. I was given one answer by Yvonne Bonner the former Chief of the U.S. Marshals Service Office
of Inspection & a U.S. Senator & Congressman received a completely opposite answer from John J.
McNulty, III former Chief of the U.S. Marshals Service Congressional Affairs Division.
So I ask you what exactly was the information which you claim to have reviewed mine or theirs?
Because my information only pointed out the fact that the U.S. Marshals Service contradicted
themselves to Congress & the U.S. Marshals Service documents verified it. So am I to believe that you
are condoning the obstruction of justice & false statements made to Congress by the U.S. Marshals
Service or denying them?
Perhaps if you utilized due diligence, investigated & reviewed the information that the U.S.
Marshals Service has failed to disclose under federal statute of law. A federal criminal investigation
would be warranted & would have resolved this matter in a timely manner. Based upon the fact that I
am not a federal investigator I have no access to the physical evidence which remains well hidden within
the confines of the U.S. Marshals Service. It is my understanding that you sir are tasked with
investigating violations of federal statute of law & not I John Q. Public. As any further involvement by me
would constitute interfering with the (secret) federal investigation being conducted by the U.S. Marshals
Service Office of Inspection of which Yvonne Bonner the former Chief of the U.S. Marshals Service Office
of Inspection told me in writing that I am not entitled to know the outcome.
The same investigation that John J. McNulty, III former Chief of the U.S. Marshals Service
Congressional Affairs Division stated in writing to the Hon. Senator Charles E. Schumer & the Hon.
Congressman Charles B. Rangel does not & has never existed although the internal affairs division say's
within a signed letter to me that the investigation does exist?
A detailed review of their records including but not limited to their personnel records would
possibly lead to the indictment & federal prosecution of those responsible. At what time in your humble
yet professional opinion would you suggest conducting an official federal investigation, before or after
the statute of limitations runs out?
Perhaps if you asked nicely the U.S. Department of Justice would reallocate some of the
resources used to investigate the alleged seven false statements made by U.S. Senator Ted Stevens. This
would enable them to investigate the numerous documented false statements made by John J. McNulty,
III the former Chief of the U.S. Marshals Service Office of Congressional Affairs.
I'm sure the Senator would greatly appreciate the distribution of justice. I truly believe that the
Senator would have preferred if the allegations against him did not warrant any federal investigation at
this time as well. Unless the U.S. Marshals Service is entitled to receive preferential treatment under
federal statute of law & the U.S. Marshals Service, Federal Bureau of Investigation & U.S Department of
Justice's Criminal Division are no longer under oversight by the U.S Senate Committee on the Judiciary,
Subcommittee on Crime & Drugs.
P.S. You may wish to "duly note" your own concerns as I already have a letter from the Hon.
Congressman Charles B. Rangel requesting that the Office of the Inspector General fulfill their legal
obligation to investigate my complaints. It would seem that all of a sudden you as a U.S. Department of
Justice attorney have no clue as to which of your many divisions is responsible for investigating
allegations of federal law enforcement officers conspiring to obstruct justice & making false statements
to Congress. It would seem to be a case of selective prosecution also known as prosecutorial discretion.
If you require further assistance you could choose to wait to receive a similar letter or the Federal
Bureau of Investigation has a task force dedicated to investigating public corruption. The New York field
office can be reached at:
Mark J. Mershon
Assistant Director in Charge
26 Federal Plaza
New York, NY 10278
(212) 384-1000
FBI PUBLIC CORRUPTION
All of my supporting documentation can be downloaded & reviewed from my website located at
http://www.daprocess.com.
Sincerely, A Proud Member Of:

Public Corruption Crime Victim
Cc:
United States Senate Hon. Charles B. Rangel
Committee on the Judiciary U.S. Congressman
224 Dirksen Senate Office Building 2354 Rayburn House Office Building
Washington, DC 20510 Washington, DC 20515
Hon. Charles E. Schumer Civil Rights & Civil Liberties Complaints

U.S. Senator Office of the Inspector General
313 Hart Senate Building U.S. Department of Justice
Washington, DC 20510 950 Pennsylvania Avenue, N.W.
Room 4706
Robert S. Mueller, III Paul Steiger

Director Editor-in-Chief
Federal Bureau of Investigation ProPublica
J. Edgar Hoover Building One Exchange Plaza
935 Pennsylvania Avenue, NW 55 Broadway, 23RD FLR
Washington, D.C. 20535-0001 New York, NY 10006
In Reply, Please Refer to One Center Plaz:a

File No. Boston, MA 021UCl
(617) 74 2-5533
September 09, 2 0 0 8
Robe rt A. Reynolds
New York, NY
Dear Mr. Reynolds
This letter is in response to the information you
furnished to the Federal Bureau of Investigation (FBI) in
Boston, on August 0 2, 2 0 0 8 regarding potential vi olations of
federal Civil Rights and Public Corruption Laws concerning
Yvonne Bonner the Acting U.S. Marshal of Boston.
At your request, this office has recently reviewed

your complaint. It is the opinion of the FBI that your matter
is not within the venue of the Boston Division. Your
allegations regard Ms. Bonner's prior position before
transferring to Boston. Your complaint indicates you have
made a c omplaint to the Office of the Inspector General for
the U.S. Department of Justice, which is the appropriate
venue, accordingly, this office will take no further action.
Sincerely yours,
Warren T. Bamford
Special Agent in c ~
By:
Jo " T. Foley
Supervisory Special Agent
MJK:amp :kdh Criminal Sec/ion - PHS

DJ 144-51-0 950 Pennsyl vania Avenu e. N.W
Washing/on , DC 20530
P2 m
Mr. Robert Reynolds
New York, NY
Dear Mr. Reynolds:
This is in response to your email dated September 2, 2008 , in which you allege to have
been the subject of illegal, electronic surveillance by the U.S. Marshals Service.
By letter dated February 7, 2008, we informed you that your complaint does not involve a
prosecutable violation of federal criminal civil rights statutes. We have carefully reviewed the
additional information in your email and determined that your complaint still does not involve a
prosecutable violation of federal criminal civil rights statutes.
For your information, once we have notified a citizen that a complaint is not prosecutable,
it is the policy of this office to file, without response, subsequent correspondence that does not
provide any new information that would lead to prosecution.
We regret that we cannot be of further assistance to you.
Sincerely,
Mark J. Kappelhoff
Section Chief
Criminal Section
By: 0uCiL~
. Angela M. Parks
aralegal Specialist
Criminal Section
Mark Kappelhoff Mr. Robert Reynolds A Proud Member Of:
Chief
U.S. Department of Justice New York NY
950 Pennsylvania Avenue, N.W.
Criminal Section, PHB
October 04, 2008
Dear Chief Kappelhoff,
I am contacting you in reference to a letter I received from your office dated September 29,
2008. At which time you stated that my complaint does not involve a prosecutable violation of federal
criminal civil rights statutes. According to the Civil Rights Division it does constitute a violation:

Criminal Section
OFFICIAL MISCONDUCT (18 U.S.C. § 242) -- Intentional acts by law enforcement officials who misuse
their positions to unlawfully deprive individuals of constitutional rights, such as the right to be free from
unwarranted assaults, illegal arrests and searches, and theft of property.
DEPRIVATION OF RIGHTS UNDER COLOR OF LAW
Summary:
Section 242 of Title 18 makes it a crime for a person acting under color of any law to “willfully deprive a
person of a right or privilege protected by the Constitution or laws of the United States”.
For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or
local officials within the their lawful authority, but also acts done beyond the bounds of that official's
lawful authority, if the acts are done while the official is purporting to or pretending to act in the
performance of his/her official duties. Persons acting under color of law within the meaning of this
statute include police officers, prisons guards and other law enforcement officials, as well as judges, care
providers in public health facilities, and others who are acting as public officials. It is not necessary that
the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or
national origin of the victim.
The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending
upon the circumstances of the crime, and the resulting injury, if any.
TITLE 18, U.S.C., SECTION 242
Whoever, under color of any law, statute, ordinance, regulation, or custom, “willfully subjects any
person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights,
privileges, or immunities secured or protected by the Constitution or laws of the United States”, ...
shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results
from the acts committed in violation of this section or if such acts include the use, attempted use, or
threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned
not more than ten years, or both; and if death results from the acts committed in violation of this
section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an
attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or
imprisoned for any term of years or for life, or both, or may be sentenced to death.
In addition to (18 U.S.C. § 242) there have been numerous additional prosecutable violations of
federal statutes committed which can be investigated by the U.S. Department of Justice. So why have
you not forwarded my complaint to the section that investigates the violations that you do not? Why
have you not forwarded my complaint to the Office of the Inspector General as required by policy in
addition to the Public Corruption Section of the USDOJ or the Federal Bureau of Investigation?
For your information once I have notified the U.S. Department of Justice in writing numerous
times of documented violations of federal statute of law & receive documented responses of
“malfeasance”. It is my policy to file a “Writ of Mandamus”. As well as initiate an investigation by the
Senate Committee on the Judiciary of all parties who “willfully failed to investigate” or “conspired to
obstruct justice” by not utilizing due diligence & forwarding my complaint to the appropriate party for
investigation. Does that not also fall under the federal statute indicated below?

§ 4 Misprision of felony
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the
United States, conceals and does not as soon as possible make known the same to some judge or other
person in civil or military authority under the United States, shall be fined under this title or imprisoned
not more than three years, or both.
It is illegal for the U.S. Marshals Service to deprive me of the outcome of a federal investigation
which I initiated. Federal statute dictates that I am entitled to restitution as per TITLE 50 > CHAPTER 36
> SUBCHAPTER I > § 1810 Civil liability. I have proved that the U.S. Marshals Service has made false
statements to Senator Schumer who sits on the Judiciary Subcommittee on Crime & Drugs which has
oversight of the Department of Justice's Criminal Division; Executive Office of the U.S. Attorneys; and
the U.S. Marshal’s Office. At what point is your office going to have the FBI / OIG initiate an official
investigation? I will continue to update ProPublica.org of your willful negligence in this matter.
TITLE 18 > PART I >CHAPTER 19 > § 371

§ 371 Conspiracy to commit offense or to defraud United States
652 Statute of Limitations for Conspiracy
Conspiracy is a "continuing offense". For statutes such as 18 U.S.C. § 371, which require an overt act in
furtherance of the conspiracy, the statute of limitations begins to run on the date of the last overt act.
See Fiswick v. United States, 329 U.S. 211 (1946); United States v. Butler, 792 F.2d 1528 (11th Cir. 1986).
For conspiracy statutes which do not require proof of an overt act, such as RICO (18 U.S.C. § 1961) or 21
U.S.C. § 846, the government must allege and prove that the conspiracy continued into the limitations
period. The crucial question in this regard is the scope of the conspiratorial agreement, and the
conspiracy is deemed to continue until its purpose has been achieved or abandoned. See United States
v. Northern Imp. Co., 814 F.2d 540 (8th Cir. 1987); United States v. Coia, 719 F.2d 1120 (11th Cir. 1983),
cert. denied, 466 U.S. 973 (1984).
An individual's "withdrawal" from a conspiracy starts the statute of limitations running as to that
individual. "Withdrawal" from a conspiracy for this purpose means that the conspirator must take
affirmative action by making a clean breast to the authorities or communicating his or her disassociation
to the other conspirators. See United States v. Gonzalez, 797 F.2d 915 (10th Cir. 1986).
My documents can be downloaded from my website located at http://www.daprocess.com.
Sincerely, Cc: U.S. Senate Committee on the Judiciary

Subcommittee on Crime and Drugs
224 Dirksen Senate Office Building
Washington, DC 20510
Virginia State Bar
Eighth and Main Building
707 East Main Street, Suite 1500
Richmond, Virginia 23219-2800
Telephone: (804) 775-0500
Facsimile:(804) 775-0597 TDD (804) 775-0502
October 16, 2008
PERSONAL AND CONFIDENTIAL
Robert A. Reynolds
New York, NY
Re: Inquiry about Gerald Matthew Auerbach

VSB Docket # 08-NAT-074312
Dear Mr. Reynolds:
Pursuant to your latest communication, we have reviewed the entire file to make sure we made
the right decision regarding your inquiry. We see no reason to change the prior decision.
Therefore, the Virginia State Bar will not take any further action on your inquiry regarding the
attorney for the reasons previously explained to you.
The Virginia State Bar has now re-reviewed your inquiry and determined that there is no basis on
which we can proceed. It is the policy of the Virginia State Bar not to respond to multiple
requests for reviews of an inquiry.
We appreciate your interest and concerns regarding this situation. Your inquiry in this matter
remains closed.
Very trul y yours;
James C. Bodie
Intake Counsel
JCB/nlf
Executive Office for United States Attorneys
General Counsel's Office Washington, D.C. 20530
OCT 1 b 2008
Robert Reynolds
New York, NY
Dear Mr. Reynolds:
This responds to your October 3, 2008 faxed letter to Kenneth E. Melson, Director,
Executive Office for United States Attorneys (EOUSA). Because of the nature of your request,
your letter was forwarded to the General Counsel's Office, EOUSA, for a response.
You write that you have been pursuing several complaints against the United States
Marshals Service (USMS). During this pursuit, you claim you have encountered top USMS
officials contradicting one another and obstructing justice as the USMS "has made false
statements" to New York Senator Charles E. Schumer. You "would appreciate [the] assistance"
of Director Melson in having the FBI or OIG investigate the USMS.
Mr. Reynolds, EOUSA provides the 93 United States Attorneys (94 United States
Attorneys' Offices) with general executive assistance and, among other things, direction,
policy development, administrative management direction and oversight, and operational
support. We provide advice and guidance only to United States Attorneys and their offices.
EOUSA is not an investigative agency, and does not provide legal representation nor assistance
to private citizens. The Federal Bureau ofInvestigation (FBI) is the primary investigative agency
for the Department of Justice. If you feel you have knowledge of illegal activities that violate
federal law, you may forward those concerns to your local FBI office.
We appreciate the confidence which prompted your letter, and wish you the best.
Sincerely, ....- "

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Jay Macklin
General Counsel
Department of Justice § 0.29c
(d) Serve as a central agency for in- of the Department and the necessity
formation relating to the work and ac- for and progress of corrective action.
tivities of all agencies of the Depart- (b) In order to carry out its respon-
ment. sibilities the OIG:
(e) Prepare public statements and (1) Audits and inspects Department
news releases. programs and operations as well as
(f) Coordinate Department publica- non-Department entities contracting
tions. with or receiving benefits from the De-
(g) Assist the Attorney General and partment;
other officials of the Department in (2) Investigates allegations of crimi-
preparing for news conferences, internal wrongdoing and administrative
views and other contacts with the news misconduct on the part of Department
media. employees, as provided in § 0.29c of this
subpart;
[Order No. 960–81, 46 FR 52343, Oct. 27, 1981. (3) Investigates allegations that indi-
Redesignated by Order No. 1497–91, 56 FR viduals and entities outside of the De-
25629, June 5, 1991] partment have engaged in activity that
adversely affects the Department’s pro-
Subpart E–4—Office of the grams and operations;
Inspector General (4) Undertakes sensitive investiga-
tions of Department operations and/or
SOURCE: Order No. 2167–98, 63 FR 36847, July
personnel, often at the request of sen-
8, 1998, unless otherwise noted. ior Department officials or Congress.
§ 0.29 Organization. § 0.29b Reporting allegations of waste,

fraud, or abuse.
(a) The Office of the Inspector Gen- Employees shall report evidence and
eral (OIG) is composed of the Inspector non-frivolous allegations of waste,
General; the Deputy Inspector General; fraud, or abuse relating to the pro-
the Audit, Inspections, Investigations, grams and operations of the Depart-
and Management and Planning Divi- ment to the OIG or to a supervisor for
sions; the Special Investigations and referral to the OIG.
Review Unit; and the Office of General
Counsel. § 0.29c Reporting allegations of em-
(b) The OIG is headquartered in ployee misconduct.
Washington, DC. Investigations Field (a) Reporting to the OIG. Evidence and
Offices and Audit Regional Offices are non-frivolous allegations of criminal
located in Washington, DC and wrongdoing or serious administrative
throughout the United States. For a misconduct by Department employees
listing of specific office locations, see shall be reported to the OIG, or to a su-
the OIG Internet Website at http:// pervisor or a Department component’s
www.usdoj.gov/oig. internal affairs office for referral to
the OIG, except as provided in para-
§ 0.29a General functions. graph (b) of this section.
(a) The OIG is a statutorily created (b) Reporting to the Department’s Office
independent entity within the Depart- of Professional Responsibility (DOJ–
ment of Justice subject to the general OPR). Employees shall report to DOJ–
supervision of the Attorney General OPR evidence and non-frivolous allega-
that conducts and supervises audits, tions of serious misconduct by Depart-
inspections, and investigations relating ment attorneys that relate to the exer-
to the programs and operations of the cise of their authority to investigate,
Department; recommends policies to litigate, or provide legal advice. Em-
promote economy, efficiency, and ef- ployees shall also report to DOJ–OPR
fectiveness and to prevent and detect evidence and non-frivolous allegations
fraud and abuse in Departmental proof serious misconduct by Department
grams and operations; and keeps the law enforcement personnel that are re-
Attorney General and Congress in- lated to allegations of misconduct by a
formed about the problems and defi- Department attorney that relate to the
ciencies relating to the administration exercise of the attorney’s authority to
21
VerDate Jan<31>2003 11:26 Jul 11, 2003 Jkt 200103 PO 00000 Frm 00021 Fmt 8010 Sfmt 8010 Y:\SGML\200103T.XXX 200103T
§ 0.29d 28 CFR Ch. I (7–1–03 Edition)
investigate, litigate, or provide legal § 0.29e Relationship to other depart-

advice. mental units.
(c) Reporting to the Drug Enforcement (a) The OIG works cooperatively with
Administration Office of Professional Re- other Department components to as-
sponsibility (DEA–OPR). Evidence and sure that allegations of employee mis-
non-frivolous allegations of serious conduct are investigated by the appro-
misconduct by employees of the Drug priate entity:
Enforcement Administration (DEA) (1) The OIG refers to DOJ–OPR alle-
shall be reported by the OIG to the gations of misconduct within DOJ–
Drug Enforcement Administration Of- OPR’s jurisdiction and may refer to an-
fice of Professional Responsibility other component the investigation of
(DEA–OPR) or to the Deputy Attorney an allegation of misconduct on the part
General. of an employee of that component;
(d) Reporting to the Federal Bureau of (2) The OIG may refer to a Depart-
Investigation Office of Professional Re- ment component’s internal affairs of-
sponsibility (FBI–OPR). Evidence and fice allegations of misconduct within
non-frivolous allegations of serious that office’s jurisdiction or may inves-
misconduct by employees of the Fed- tigate such allegations on its own;
eral Bureau of Investigation (FBI) shall (3) DOJ–OPR refers to the OIG allega-
be reported by the OIG to the FBI–OPR tions involving misconduct by Depart-
except as provided in § 0.29d of this sub- ment attorneys or investigators that
part, or to the Deputy Attorney Gen- do not relate to the exercise of an at-
eral. torney’s authority to investigate, liti-
gate, or provide legal advice.
[Order No. 2167–98, 63 FR 36847, July 8, 1998,
as amended by Order No. 2492–2001, 66 FR
(4) The OIG and the FBI notify each
37903, July 20, 2001] other of the existence of criminal in-
vestigations that fall within their joint
§ 0.29d Whistleblower protection for jurisdiction to investigate crimes in-
FBI employees. volving the operations of the Depart-
ment, except where such notification
(a) Protected disclosures by FBI employ-
could compromise the integrity of an
ees. Disclosures of information by an
investigation;
FBI employee that the employee rea-
(5) All Department components re-
sonably believes evidences a violation
port to the OIG all non-frivolous alle-
of any law, rule, or regulation, or mis-
gations of criminal wrongdoing and se-
management, gross waste of funds, an
rious administrative misconduct in-
abuse of authority, or a substantial volving any of their employees except
and specific danger to public health or allegations involving Department at-
safety are protected disclosures when torneys and investigators that relate
they are reported as provided in § 27.1 to an attorney’s authority to litigate,
of this chapter. Any office or official investigate, or provide legal advice.
(other than the OIG or DOJ–OPR) re- (6) At the request of the Inspector
ceiving a protected disclosure shall General, the Deputy Attorney General
promptly report such disclosure to the may assign to the OIG a matter within
OIG or DOJ–OPR. The OIG or DOJ– the investigative jurisdiction of DOJ–
OPR may refer such allegations to OPR. In such instances, the OIG shall
FBI–OPR for investigation unless the either:
Deputy Attorney General determines (i) Notify DOJ–OPR of its request to
that such referral shall not be made. the Deputy Attorney General or
(b) Allegations of retaliation against (ii) Request that the Deputy Attor-
FBI employees. Allegations of retalia- ney General determine that such noti-
tion against an employee of the FBI fication would undermine the integrity
who makes a protected disclosure shall of the investigation nor jeopardize the
be reported to the OIG, DOJ–OPR, or interests of the complainant.
the Deputy Attorney General. (7) While an issue of investigative ju-
[Order No. 2167–98, 63 FR 36847, July 8, 1998, risdiction or assignment is pending be-
as amended by Order No. 2492–2001, 66 FR fore the Deputy Attorney General, nei-
37903, July 20, 2001] ther the OIG DOJ–OPR shall undertake
22
VerDate Jan<31>2003 11:26 Jul 11, 2003 Jkt 200103 PO 00000 Frm 00022 Fmt 8010 Sfmt 8010 Y:\SGML\200103T.XXX 200103T
Miscellaneous
FOIA VIOLATIONS
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§ 16.10 28 CFR Ch. I (7–1–07 Edition)
A decision affirming an adverse deter- cause of the nature of the request itself
mination in whole or in part shall con- or because a component has reasonable
tain a statement of the reason(s) for cause to doubt a requester’s stated use,
the affirmance, including any FOIA ex- the component shall provide the re-
emption(s) applied, and will inform you quester a reasonable opportunity to
of the FOIA provisions for court review submit further clarification.
of the decision. If the adverse deter- (2) Direct costs means those expenses
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request will be reprocessed in accord- reviewing) records to respond to a
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(c) When appeal is required. If you example, the salary of the employee
wish to seek review by a court of any performing the work (the basic rate of
adverse determination, you must first pay for the employee, plus 16 percent of
appeal it under this section. that rate to cover benefits) and the
cost of operating duplication machin-
§ 16.10 Preservation of records. ery. Not included in direct costs are
Each component shall preserve all overhead expenses such as the costs of
correspondence pertaining to the re- space and heating or lighting of the fa-
quests that it receives under this sub- cility in which the records are kept.
part, as well as copies of all requested (3) Duplication means the making of a
records, until disposition or destruc- copy of a record, or of the information
tion is authorized by title 44 of the contained in it, necessary to respond to
United States Code or the National Ar- a FOIA request. Copies can take the
chives and Records Administration’s form of paper, microform, audiovisual
General Records Schedule 14. Records materials, or electronic records (for ex-
will not be disposed of while they are ample, magnetic tape or disk), among
the subject of a pending request, ap- others. Components shall honor a re-
peal, or lawsuit under the FOIA. quester’s specified preference of form
or format of disclosure if the record is
§ 16.11 Fees. readily reproducible with reasonable
(a) In general. Components shall efforts in the requested form or format
charge for processing requests under by the office responding to the request.
the FOIA in accordance with paragraph (4) Educational institution means a
(c) of this section, except where fees preschool, a public or private elemen-
are limited under paragraph (d) of this tary or secondary school, an institu-
section or where a waiver or reduction tion of undergraduate higher edu-
of fees is granted under paragraph (k) cation, an institution of graduate high-
of this section. A component ordinarily er education, an institution of profes-
shall collect all applicable fees before sional education, or an institution of
sending copies of requested records to a vocational education, that operates a
requester. Requesters must pay fees by program of scholarly research. To be in
check or money order made payable to this category, a requester must show
the Treasury of the United States. that the request is authorized by and is
(b) Definitions. For purposes of this made under the auspices of a qualifying
section: institution and that the records are not
(1) Commercial use request means a re- sought for a commercial use but are
quest from or on behalf of a person who sought to further scholarly research.
seeks information for a use or purpose (5) Noncommercial scientific institution
that furthers his or her commercial, means an institution that is not oper-
trade, or profit interests, which can in- ated on a ‘‘commercial’’ basis, as that
clude furthering those interests term is defined in paragraph (b)(1) of
through litigation. Components shall this section, and that is operated solely
determine, whenever reasonably pos- for the purpose of conducting scientific
sible, the use to which a requester will research the results of which are not
put the requested records. When it ap- intended to promote any particular
pears that the requester will put the product or industry. To be in this cat-
records to a commercial use, either be- egory, a requester must show that the
276
VerDate Aug<31>2005 10:26 Aug 07, 2007 Jkt 211106 PO 00000 Frm 00286 Fmt 8010 Sfmt 8010 Y:\SGML\211106.XXX 211106
WHO ELSE DO YOU NEED
Presented By Matthew Fogg Upon Accepting

The “Barrier Breakers” Award
At The Freedom Fund Dinner Of The
Washington, D. C. NAACP,
Chaired By The Honorable House Speaker,

Nancy Pelosi
There was a federal government law enforcement employee who decided to fight against
pervasive racism and corruption inside the United States Marshals' Service under supervision of
the U.S. Department of Justice. He believed in GOD and he proclaimed the Blood of the Lamb.
But in spite of all his holy professions, others actually told him,
"Man just go along, to get along"
"Don't fight the system, it will change in time"
"Blacks employees must learn to work hard and prove themselves as managers"
"Just turn your head when you see injustice against citizens, you can't police everything"
"It's a good-Ole-boy network and they don't want Black and Brown minorities in supervision"
"You have a great career, please don't destroy it on a crusade against Bigots With Badges"
"If you testify against the Marshals' Service on Capitol Hill, management will destroy your
career for sure"
"The U.S. Justice Department is too big with endless resources, you can't win"
"400 years of oppression are not going to change overnight with your discrimination complaints"
"Being called a 'Coon or Nigger' by white employees is not all that bad"
"Just continue to arrest those who we direct you to arrest even if they are all Black"
1
"I love you brother, but if you go forward with your discrimination complaints, then I can't be
associated with you"
"I have a family I must feed and these people in the Justice Department will destroy you with its
mighty power"
"Take their settlement offer and take care of yourself because the Black Marshals that you are
standing up for are afraid and care only about themselves"
"The Marshals Service will set you up and get you arrested or killed in the line of duty"
"Please Fogg, don't let this happen.
They don't need to admit to discrimination, just take the settlement money and run away from
this and pray and let your GOD fight this battle"
But that same US Marshal reiterated, "the same GOD who called me into battle, will deliver me
in my hour of need".
And then late one night years later as this ominous battle for justice continued, that same U.S.
Marshal sat in the rain watching over his property in Washington, D.C. A court ordered eviction
was carried out against him by his own U.S. Marshal colleagues because he could not pay his
rent. As he tried to hide the tears that eased slowly down his face, blending in with the rain, he
wondered, how long will this battle go on. He then looked up into a dark sky and said, "Lord my
money is low, all my friends and co-workers have abandoned me. My fiancee left too and she
said, I should accept what this enemy offers and let this battle go. Now I here the roaring thunder
of a mighty enemy charging towards me like Pharaoh's army in the night and my back is against
a sea of despair. It's just you and me now GOD, just you and me! Nobody else, I'm all alone with
just you.
But that same U.S. Marshal continued to believe he was standing on Holy Ground, never giving
up. And then years later and thirteen years from the date of his first discrimination compliant,
that same US Marshal sat in a courtroom in U.S. District Court in Washington, DC, waiting for a
jury to announce his fate. The jury said, we find in the civil action of Matthew Fogg versus the
United States Department of Justice, that plaintiff Matthew Fogg's civil rights were grossly
violated in 14 out of 15 claims.
We also find the entire U.S. Marshals Service to be a "Racially Hostile Environment" for all of
its African American deputy U. S. Marshals and, we find that the U.S. Justice Department must
pay Matthew Fogg four million dollars ($4,000,000.00) in compensation for damages. We
further find that Matthew Fogg must be reinstated from a GS-13 to a GS-15 Chief Deputy U.S.
Marshal with all back pay and attorney fees.
As the jury read the landmark verdict against the U.S. Marshals Service and the U.S. Department
of Justice that is now paramount for all federal workers across America, the tears once again
crept slowly down the face of that same U.S. Marshal. He looked up in silence in a lonely
2
federal courtroom and heard an omnipotent voice inside his mind. That voice said, "Matthew my
son, remember that night years ago when you cried unto me and said, Lord everyone has
abandoned me and now it's just you and me, no one-else but you and me my GOD!"
GOD then said to me, "WELL I ASK YOU NOW MY SON – WHO ELSE DO NEED?
Chief Deputy U.S. Marshal (INA),
Matthew F. Fogg
Copyright 5/98
3
Matthew F. Fogg
Chief Deputy U. S. Marshal,
International EEO and Diversity Consultant
Human Rights Activist
Redstone Area Minority Employees Association (RAMEA)

Blacks In Government (BIG) Heritage Chapter
D. C. Charter Chapter for Federally Employed Women (FEW)
Congress Against Racism and Corruption in Law Enforcement (CARCLE)
Contact:
Zena D. Crenshaw – (202) 370-6635
admin@carcle.us
For Immediate Release

January 23, 2008
U.S. Marshal States Congressional Disclosures Protection Act (H.R. 4650) Will
Make Federal Employers More Accountable To Whistleblowers
Marshal Matthew Fogg Is Set To Receive Millions In Relief

After 23 Years Of Taxpayer Litigation
From Five U.S. Attorney Generals
_________
Washington, D. C. – January 23, 2008. The U.S. Attorneys office recently notified
attorneys for Chief Deputy U.S. Marshal Matthew Fogg that they will not appeal his Title
VII verdict of 1998 any further and will arrange for him to be paid millions in backpay
and compensatory damages. A U. S. Circuit Court of Appeals ruled in June 2007 that
the U.S. Justice Department has to follow lower court rulings favoring relief for Fogg.
It is estimated that Marshal Fogg’s individual racial discrimination complaint filed in 1985
has cost American taxpayers over 50 million dollars. These figures include salaries of
12 federal judges, 19 assistant U.S. Attorneys, staff assistants, court costs including a
jury trial and two D.C. Circuit Appeal hearings, Fogg’s attorney fees and cost, back pay
and compensatory damages.
The Marshals Service is supervised by the U.S. Department of Justice. “Amazingly, my

case has been litigated by the department through seven U.S. Attorney Generals” said
Fogg, naming them as follows: Edwin Meese III, Dick Thornburgh, William P. Barr,
Janet Reno, John Ashcroft, Alberto R. Gonzales and Michael B. Muskasey.
Fogg blew the whistle on racial discrimination against his Caucasian supervisor in 1985
when he was reportedly forced to drive an unsafe vehicle from Washington, D.C. to the
1
Federal Law Enforcement Training Center (FLETC) in Glenco Georgia. “The vehicle
was scheduled to be destroyed in live fire and explosive ordinance training exercises”
noted Fogg. He explains that his “life was placed in grave danger during the drive to
Glenco”.
Ultimately, Fogg’s one discrimination complaint led to many reprisal claims including the
allegation that Fogg’s white colleagues later left him to die in the hands of heavily armed
fugitives on a stakeout in Baltimore, Maryland. The fugitives were featured on the famed
T.V. show “America’s Most Wanted”.
In 1998 a Federal Jury awarded Fogg four million dollars, provided that he be promoted
to Chief Deputy U.S. Marshal, and found the entire U.S. Marshals Service to be a
racially hostile environment for all African American deputy U.S. Marshals nationwide.
Fogg recounts that “the U.S. Marshals Service hierarchy dug in its heels, confirming the
pervasive racism that still permeates the department today as evidenced by the
longevity of and money spent fighting my case”. Fogg specifically called the tactics of
the Marshal Service General Counsels office as “Gestapo” or “Jim Crow”. According to
Fogg, one its attorneys named Joseph Larzar actually mailed him a personal letter,
knowing he was represented by an attorney, “threatening (him) with charges of
impersonating a Federal Marshal”.
Fogg claims Lazar, who is now the Marshal Service’s assistant General Counsel, made
their litigation a personal vendetta and caused taxpayers countless dollars through
waste, fraud and abuse. “The Service continued to defend even after a Federal Jury
and Judge validated my report of its ‘occult racism’ ten years ago” adds Fogg.
Fogg is Co-Chair of the NoFEAR (Federal Employees Against Retaliation) Coalition and
in that capacity expresses support for the Congressional Disclosures Protections Act of
2007 (H.R. 4650). He also conveys the support for that proposed legislation of the
Redstone Area Minority Employees Association (RAMEA) for which he is Executive
Director and as president of Blacks In Government (BIG) Heritage Chapter as well as
the D. C. Charter Chapter for Federally Employed Women (FEW); and as national
president of Congress Against Racism and Corruption in Law Enforcement (CARCLE).
RAMEA, BIG (Heritage Chapter), FEW (D. C. Charter Chapter), and CARCLE affirm
that federal agency officials charged with enforcing the law should face the same harsh
and swift penalties as most subordinate employees face when they are law breakers.
Critical to bringing about that justice is the right of individuals to report to Congress what
reasonably seems to be the unlawful activity of federal agents. At last because of H.R.
4650, such unlawfulness may clearly include alleged civil rights violations under Title VII
of the Civil Rights Acts of 1964. Both champions of First Amendment activities and
discrimination victims making claims under Title VII are among the brave government
whistleblowers that America should honor and protect.
2
When enacted, the Congressional Disclosures Protections Act of 2007 will protect
government whistleblowers by allowing them access to federal trial courts and three
hundred thousand dollars ($300,000.00) recovery on each of their cognizable claims.
Further H.R. 4650 would guarantee them the sacred right to jury trial. Should they
prevail, these embattled whistleblowers can be made whole under the legislation
through tripled damages awards.
“The constituents of RAMEA, BIG, FEW, and CARCLE are often honorable patriots who
have or will risk personal comfort to expose government fraud, waste, and abuse for the
greater good” explains Fogg. “They are undoubtedly encouraged by Congressman
Albert Wynn’s introduction of the Congressional Disclosures Protections Act of 2007”.
Fogg remarked that “among its many noteworthy features is the specific inclusion of
emotional distress and lost reputation as compensable items. Though intangible, these
losses are quite real among government whistleblowers which I proudly serve and
consider comrades.”
Fogg has successfully represented many federal employees around the United States
at the Equal Employment Opportunity Commission and is known as an expert in
Employee labor relations matters.
###
3
FOR IMMEDIATE RELEASE CRT
FRIDAY, JANUARY 18, 2008 (202) 514-2007
WWW.USDOJ.GOV TDD (202) 514-1888
FORMER U.S. DEPUTY MARSHAL SENTENCED TO 24 MONTHS
ON CIVIL RIGHTS-RELATED CHARGES
WASHINGTON – Former Deputy U.S. Marshal Stephen Cook was sentenced today in the
U.S. District Court for the District of Columbia on civil rights charges arising out of his August
2005 assault on a detainee at the District of Columbia Superior Court, announced Acting
Assistant Attorney General Grace Chung Becker of the Justice Department’s Civil Rights
Division and U.S. Attorney Jeffrey A. Taylor. Cook was sentenced to 24 months imprisonment
and ordered to pay restitution. Upon his release from prison, he will be monitored on federal
supervised release for two years.
On Oct. 30, 2007, a federal jury in Washington, D.C., found Cook guilty of violating
Omar Hunter’s civil rights, making false statements to federal investigators, and two counts of
tampering with a witness. The evidence at trial showed that early on Aug. 30, 2005, Hunter was
transported to the U.S. Marshals Service cellblock in the D.C. Superior Court following an arrest
for a routine traffic offense. Shortly after arriving, Hunter made a comment that angered Cook,
who was on duty as a Deputy U.S. Marshal. Cook responded by pulling Hunter, who was in
restraints and offered no resistance, from a police van and assaulting him by punching and
kicking Hunter in the head and upper body. Cook also submitted a false report about this
incident to the U.S. Marshals Service and twice advised another Deputy U.S. Marshal to lie about
the incident to a federal grand jury.
In addition to Cook, two former Deputy U.S. Marshals, Bryan Behringer and Michael
Sharpstene, have been prosecuted for their involvement in the 2005 assault on Hunter. They
have pleaded guilty to federal felony charges of making false statements to federal investigators
regarding their knowledge of the assault on Hunter. They have not yet been sentenced.
“The Justice Department is committed to vigorously prosecuting any law enforcement

officer who steps outside the law and abuses the rights of others,” said Acting Assistant Attorney
General Grace Chung Becker. “This sort of unlawful behavior undermines the tireless efforts of
the vast majority of law enforcement officers throughout our nation who perform their duties
with honor and professionalism.”
This case was investigated by the Federal Bureau of Investigation. Assistant U.S.
Attorney John Cummings and Trial Attorney Douglas Kern of the Civil Rights Division
prosecuted this case.
The Civil Rights Division is committed to the vigorous enforcement of the federal
criminal civil rights statutes, such as laws that prohibit the willful use of excessive force or other
-2-
acts of misconduct by law enforcement officials. The Department of Justice has compiled a
significant record on criminal civil rights law enforcement misconduct prosecutions in the last
seven years. During the last seven years, the Criminal Section obtained convictions of 53 percent
more defendants (391 v. 256) in color of law cases than the previous seven years.
###
08-041
1 CARL E. ROSTAD
Special Attorney to the United States Attorney General
2 P.O. Box 3447
Great Falls, MT 59403
3 119 First Ave. North, #300
Great Falls, MT 59401
4 Phone: (406) 761-7715
FAX: (406) 453-9973
5 Email: Carl.Rostad@usdoj.gov
6
ATTORNEY FOR PLAINTIFF
7 UNITED STATES OF AMERICA
8
9 IN THE UNITED STATES DISTRICT COURT
10 EASTERN DISTRICT OF WASHINGTON
11 UNITED STATES OF AMERICA, CR 07-182-JCC
12 Plaintiff,
13 vs.
14 DAVID FLOYD BRODHAGEN, OFFER OF PROOF
15 Defendant.
16
17
18 David Floyd Brodhagen appears before the Court to enter a plea of Guilty to
19 the charge contained in the Information. The United States, by and through its
20 counsel, Carl E. Rostad, Special Attorney to the United States Attorney General,
21 submits this Offer of Proof to provide the factual basis for the defendant’s plea, to
22 provide the Court with a context for the plea, and to advise the Court of the
23 prosecution’s position on restitution and forfeiture issues.
24 I. ELEMENTS
25 The elements of the crime to which the defendant is entering a guilty plea
26 are:
27 First, David Floyd Brodhagen was a public official [18 U.S.C. § 201(a)(1)];
28 Second, David Floyd Brodhagen provided a writing to the United States,
OFFER OF PROOF 1
1 which contained false information; and,
2 Third, David Floyd Brodhagen knew the information provided was false.
3 By his guilty plea, the defendant admits all of the elements of the
4 misdemeanor crime. United States v. Broce, 488 U.S. 563, 570 (1989).
5 II. FACTUAL BASIS FOR THE PLEA
6 If called upon to prove this case at trial, the United States would present
7 evidence of the following events:
8 On November 11, 2002, Deputy U.S. Marshal David Brodhagen submitted
9 an internet application to Saint Regis University. In this application, Brodhagen
10 stated he wanted a Bachelor of Science degree in Criminal Science/Liberal Arts.
11 Brodhagen paid $731 by MasterCard to obtain this degree. As part of his
12 submission package, Brodhagen stated, “At this time in my career, I feel it is
13 important to obtain a BA Degree. Without it, I will not be able to go further up in
14 my career ladder. With only seven more years remaining before retirement, it is
15 too late to go to the conventional route of a four year college. This is my primary
16 reason for applying for a degree based upon my experience, training, and college
17 education.” St. Regis asked him which classes he wanted on his transcript and
18 what grades he wanted reflected as having received. St. Regis then provided him
19 with a “degree” and a transcript of college courses purported to have been taken
20 and completed.
21 The internet application for Saint Regis University contained a warning
22 stating that the applicant understands they are not enrolling in a school of any type
23 and that Saint Regis University will not provide any representation of
24 accreditation.
25 About 2 ½ months later, on or about January 28, 2003, Brodhagen applied
26 for a position as the Supervisory Deputy United States Marshal in the Spokane,
27 Washington, office of the United States Marshals Service. Within the job
28 application, Brodhagen claimed he had a Bachelor’s degree and was entitled to a
OFFER OF PROOF 2
1 12 point rating indicative of such a degree. He also included a copy of a degree
2 from Saint Regis University indicating he had obtained a Bachelor of Science
3 degree in Criminal Justice on June 5, 2002.
4 While the application process was being reviewed, the U.S. Marshal’s
5 Service noted that one of the classes Brodhagen was alleged to have taken was a
6 self-defense class for women. As Brodhagen was not female, this course cast
7 doubt on the legitimacy of the St. Regis degree. When later interviewed, Deputy
8 Brodhagen claimed that he had brought this error to the attention of the Marshal’s
9 Service. Whether self-reported or otherwise discovered, the Marshal’s Service
10 determined that the Saint Regis degree could not be used as a legitimate academic
11 credential and reduced Brodhagen’s points by that amount that would have been
12 awarded to an applicant with a legitimate college education and degree. Even with
13 the lesser points, Brodhagen was selected by the U.S. Marshal for the position.
14 Brodhagen was interviewed by agents of the Office of Inspector General
15 (OIG) for the Department of Justice, of which the Marshal’s Service is a
16 component. He advised the agents that he had located Saint Regis University from
17 an advertisement he read in a magazine. He went to their internet site, completed
18 their enrollment forms, and paid them $731 to obtain a college degree for “life
19 experiences.” He admitted that he never completed any classes from them.
20 Brodhagen stated he did not possess a Bachelor’s degree from any other
21 institution.
22 Brodhagen said he also included a transcript of courses allegedly taken at
23 Saint Regis University even though he admitted he took no such classes. The
24 transcript showed he completed 29 different classes and received between a “B”
25 and an “A” for every class. The grade point average for his degree was shown on
26 the transcript as 3.65. Brodhagen said Saint Regis had previously asked him what
27 grade point average he desired on his transcript, and he told them 3.65.
28 Brodhagen signed a certificate at the end of his job application for
OFFER OF PROOF 3
1 promotion within the United States Marshals Service stating “all information
2 provided in the application are true, complete and correct to the best of his
3 knowledge and belief.”
4 Brodhagen told the OIG that a short time after submitting his promotion
5 package, he noted in his Saint Regis University transcript a course entitled
6 “Defense Class For Women,” in which he received a grade of an “A-.” Brodhagen
7 realized he should never have received credit for this class as he was not a woman.
8 He told the investigating agents that he called the Marshals Service Human
9 Resources Department and questioned an unknown female whether he could
10 receive credit for this course and if the degree was in fact valid. She told him to
11 call some other colleges to determine if they would accept his courses from Saint
12 Regis University. Brodhagen subsequently called Concordia College, which he
13 attended in 1994, and found they would not accept the Saint Regis courses.
14 Brodhagen said that over the course of several telephone calls with the
15 unknown female in Human Resources, it was agreed upon that Brodhagen would
16 not receive any credit in his promotion package for obtaining a four year degree
17 from Saint Regis. Brodhagen claimed he subsequently submitted a revised
18 education page to his promotion package showing he did not possess a four year
19 college degree and his education points were downgraded from 12 points to 4
20 points.
21 Contact with Sandra Lyles, the Chief of the Merit Promotion Department
22 within the Marshals Service, and two other employees was unsuccessful in
23 determining who Brodhagen may have talked to about the Saint Regis degree.
24 Lyles said Brodhagen would have had to talk to her or the other women
25 interviewed as they were the only people involved in the application and hiring
26 process.
27 The United States Marshal advised the OIG that Brodhagen was selected by
28 him for the position of Supervisory Deputy United States Marshal. Marshal Kline
OFFER OF PROOF 4
1 said whether Brodhagen had a Bachelor’s degree never came up, nor was it an
2 issue in him being selected for the position. He relied on the list of suitable
3 candidates from the promotion packet provided to him by the career board to make
4 his selection. He was not allowed to interview any candidates. Marshal Kline said
5 it was to Brodhagen’s advantage in that he was the only candidate Kline knew.
6 III. RESTITUTION AND FORFEITURE ISSUES
7 There are no forfeiture issues in this case.
8 As the Marshals Service was aware of the false information prior to Deputy
9 Brohagen’s selection for the position, the United States does not believe that there
10 is any loss to the government directly attributable to the submission of false
11 information and therefore will not be seeking any restitution.
12 DATED this 12th day of February, 2008.
13 MICHAEL B. MUKASEY
Attorney General of the U.S.
14
15 /s/ Carl E. Rostad
CARL E. ROSTAD
16 Special Attorney to the U.S. Attorney General
Attorneys for Plaintiff
17
18
19
20
21
22
23
24
25
26
27
28
OFFER OF PROOF 5

Northern District of Texas
1100 Commerce St., 3rd Fl. Telephone (214)659-8600

Dallas, Texas 75242-1699 Fax (214)767-2898
FOR IMMEDIATE RELEASE DALLAS, TEXAS

CONTACT: 214/659-8707 JUNE 7, 2004
www.usdoj.gov/usao/txn
Former Deputy U.S. Marshal

Sentenced to 24 Months in Federal Prison
United States Attorney Jane J. Boyle announced that Richard L. “Trigger” Jones, of
Abilene, Texas, was sentenced this afternoon by the Honorable David C. Godbey, United
States District Judge, to 24 months imprisonment, ordered to pay a $100,000 fine, and
ordered to pay $22,406 in restitution to the Internal Revenue Service. Jones, age 49, pled
guilty in January to a two-count information that charged one count of tax evasion and one
count of conspiracy to violate the immigration laws. As part of the plea agreement with the
government, Jones, who was the Deputy United States Marshal assigned to the Abilene
office, was required to resign his position with the U.S. Marshals Service. Judge Godbey
ordered that Jones surrender to the Bureau of Prisons on July 12, 2004.
U.S. Attorney Boyle stated, “There is no place among the dedicated professionals of
the United States Marshals Service for anyone who so brazenly defies federal law. Thanks to
the Department of Justice - Office of Inspector General, the Department of Homeland
Security - Office of Inspector General, and the Internal Revenue Service - Criminal
Investigation, his days in law enforcement are over and Jones has been brought to justice. I
also applaud the full cooperation by United States Marshal Randy Ely in this investigation.”
Jones admitted that he filed false federal income tax returns for 1997 through 2002
and evaded a substantial portion of his income tax for those years. He understated his
taxable income by claiming deductions to which he was not entitled and failing to report
income. He claimed nondeductible personal expenses, fictitious expenses, and duplicate
expenses as deductions and fabricated a goat ranching business by concocting income and
expenses that the bogus business generated. In addition he failed to report income from two
businesses and from miscellaneous sources, including an oil field pump business. In total,
for 1997 through 2002, Jones owes $50,342.00 in additional taxes.
Page 1 of 2
Additionally, Jones wrote numerous checks to fictitious persons and deducted them as
business expenses and wrote checks to real persons who had no knowledge of the checks.
He falsely endorsed the checks and used his official position to cash the checks, then
claiming them as business expenses. Jones hired the aliens to construct portions of his home
and guesthouse.
Some of the intentional false deductions Jones admitted he claimed are:
• deducting a hot tub as a medical expense, yet receiving the hot tub for
free and writing a $7,400 check to a friend who cashed it and returned
the money;
• deducting a $1,119.09 home entertainment set as truck radios;
• deducting $8,600 for the purchase of a trailer when a friend cashed the
check and gave Jones back the money;
• deducting 22 expenses twice in the last three tax years;
• deducting the construction costs of a guesthouse as office construction

expense; and
• deducting deer hunting expenses as goat farming expenses, yet he had

no goat business and only fabricated goat sales to give the appearance of
a goat business.
Jones also admitted that since October 1996, he and others conspired to transport and
move aliens within the United States, knowing, or in reckless disregard of the fact that the
alien was in the country illegally. He and others also conspired to conceal, harbor, and shield
from detection illegal aliens, even using his home to prevent them from being arrested and
returning to Mexico.
Using his position as a Deputy U.S. Marshal, Jones obtained Immigration and
Naturalization “parole” documents for several aliens whom he had encouraged or induced to
remain in the U.S. on the false premises that they would be “law enforcement confidential
informants.” After obtaining the parole documents, he and others made the aliens provide
manual labor at various places in and near Abilene. He admitted that he transported and
moved the illegal aliens in and around Taylor County, Texas, and elsewhere, to provide labor
and services in his property and property owned by others.
U.S. Attorney Boyle praised the investigative efforts of the Department of Justice,
Office of Inspector General; the Department of Homeland Security, Office of the Inspector
General; and the Internal Revenue Service - Criminal Investigation. The case was prosecuted
by Assistant United States Attorney Michael J. Uhl in the Dallas, Texas, U.S. Attorney’s
Office.
Page 2 of 2
Order Code 98-808 A
Perjury Under Federal Law:

A Brief Overview
Updated December 27, 2007
Charles Doyle
Senior Specialist
American Law Division
A Brief Overview
Summary
Although it now covers more than court proceedings, the definition of perjury
has not changed a great deal otherwise since the framing of the Constitution.
Blackstone described it as "a crime committed when a lawful oath is administered,
in some judicial proceeding, to a person who swears wilfully, absolutely and falsely,
in a matter material to the issue or point in question."
There are three general federal perjury laws. One, 18 U.S.C. 1621, outlaws
presenting material false statements under oath in federal official proceedings. A
second, 18 U.S.C. 1623, bars presenting material false statements under oath before
or ancillary to federal court or grand jury proceedings. A third, 18 U.S.C. 1622
(subornation of perjury), prohibits inducing or procuring another to commit perjury
in violation of either Section 1621 or Section 1623.
In most cases, the courts abbreviate their description of the elements and state
that to prove perjury under Section 1623 the government must establish that the
defendant "(1) knowingly made a (2) false (3) material declaration (4) under oath (5)
in a proceeding before or ancillary to any court or grand jury of the United States."
The courts generally favor the encapsulation from United States v. Dunnigan to
describe the elements of Section 1621: "A witness testifying under oath or
affirmation violates this section if she gives false testimony concerning a material
matter with the willful intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory."
Section 1622 outlaws procuring or inducing another to commit perjury:

"Whoever procures another to commit any perjury is guilty of subornation of perjury,
and shall be fined under this title or imprisoned for not more than five years, or both",
18 U.S.C. 1622.
The false statement statute, 18 U.S.C. 1001, is closely akin to the perjury
statutes. It outlaws false statements in any matter within the jurisdiction of a federal
agency or department, a kind of perjury with oath prohibition.
This report is available in abbreviated form – without footnotes, quotations, or

citations – as CRS Report 98-807, Perjury Under Federal Law: A Sketch of the
Elements. Both versions have been excerpted from CRS Report RL34303,
Obstruction of Justice: An Overview of Some of the Federal Laws that Prohibit
Interference with Judicial, Executive and Legislative Activities. Excerpted portions
of RL34303 are also available as follows. CRS Report RS22783, Obstruction of
Justice: An Abridged Overview of Related Federal Criminal Laws; CRS Report
RL34304, Obstruction of Congress: a Brief Overview of Federal Law Relating to
Interference with Congressional Activities; and CRS Report RS22784, Obstruction
of Congress: an Abridged Overview of Federal Laws Relating to Interference with
Congressional Activities. All are by Charles Doyle.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Perjury in a Judicial Context (18 U.S.C. 1623) . . . . . . . . . . . . . . . . . . . . . . . 2
Perjury Generally (18 U.S.C. 1621) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subornation of Perjury (18 U.S.C. 1622) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
False Statements (18 U.S.C. 1001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Selected Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
A Brief Overview
Introduction
Although it now covers more than court proceedings, the definition of perjury
has not changed a great deal otherwise since the framing of the Constitution.
Blackstone described it as “a crime committed when a lawful oath is administered,
in some judicial proceeding, to a person who swears wilfully, absolutely and falsely,
in a matter material to the issue or point in question.”1
1
IV Blackstone, Commentaries on the Laws of England, 136-37 (1769) (italics in the
original; transliteration added). Blackstone actually borrowed from Coke and noted the
various penalties to which it was subject: “The next offense against public justice is when
the suit is past its commencement, and come to trial. And that is the crime of wilful and
corrupt perjury; which is defined by sire Edward Coke [3 Inst. 164], to be a crime
committed when a lawful oath is administered, in some judicial proceeding, to a person who
swears wilfully, absolutely and falsely, in a matter material to the issue or point in question.
The law takes no notice of any perjury but such as is committed in some court of justice,
having power to administer an oath; or before some magistrate or proper officer, invested
with a similar authority, in some proceedings relative to a civil suit or a criminal
prosecution: for it esteems all other oaths unnecessary at least, and therefore will not punish
the breach of them. For which reason it is much to be questioned how far any magistrate
is justifiable in taking a voluntary affidavit in any extrajudicial matter, as it now too frequent
upon every petty occasion: since it is more than possible, that by such idle oaths a man may
frequently in soro conscientiae incur the guilt, and at the same time evade the temporal
penalties, of perjury. The perjury must also be wilful, positive, and absolute; not upon
surprize, or the like: it also must be in some point material to the question in dispute; for if
it only be in some trifling collateral circumstance, to which no regard is paid, it is not more
penal than in the voluntary extrajudicial oaths before-mentioned. Subornation of perjury
is the offence of procuring another to take such a false oath, as constitutes perjury in the
principal. The punishment of perjury and subornation, as common law, has been various.
It was antiently death; afterwards banishment, or cutting out the tongue; then forfeiture of
goods; and now it is fine and imprisonment, and never more to be capable of bearing
testimony. But the statute 5 Eliz. c.9. (if the offender be prosecuted thereon) inflicts the
penalty of perpetual infamy, and fine of 40l. on the suborner; and, in default of payment,
imprisonment for six months, and to stand with both ears mailed to the pillory. Perjury itself
is thereby punished with six months imprisonment, perpetual infamy, and fine of 20l. or to
have both ears nailed to the pillory. But the prosecution is usually carried on for the offence
at common law; especially as, to the penalties before inflicted, the statute 2 Geo.II. c.25
superadds a power, for the court to order the offender to be sent to the house of correction
for seven years, or to be transported for the same period; and makes it a felony without
benefit of clergy to return or escape within the time,” Id.
CRS-2
Federal perjury laws are found principally in chapter 79 of title 18 of the United
States Code.2 The chapter consists of three sections: Section 1623 under which
perjury involving judicial proceedings is most often prosecuted today; the historic
perjury provision, Section 1621, now used primarily for cases where Section 1623
is unavailable and in sentencing enhancement cases; and Section 1622 that outlaws
subornation of perjury. Section 1001 of title 18 – a statute much like the perjury laws
but without the requirement that the offender have taken an oath – outlaws material
false statements in any matter within the jurisdiction of any federal agency or
department, and to a limited extent within the jurisdiction of any federal court or
Congressional entity.
None of the four are RICO predicate offenses or money laundering predicate
offenses.3 The laws relating to aiding and abetting, accessories after the fact,
misprision, and conspiracy,4 however, apply to all four.5 Sections 1621 and 1623
state that their prohibitions apply regardless of whether the perjurious conduct occurs
overseas or within this country.6 Section 1001 has no such explicit declaration, but
has been held to have extraterritorial application nonetheless.7
Perjury in a Judicial Context (18 U.S.C. 1623)

Congress enacted Section 1623 to avoid some of the common technicalities
embodied in the more comprehensive perjury provisions found in subsection 16218
and thus “to facilitate perjury prosecutions and thereby enhance the reliability of
2
Prohibitions against misconduct very much like perjury are scattered throughout the
United States Code. The most widely prosecuted is probably 18 U.S.C. 1001, discussed
infra, that outlaws material false statements made with respect to a matter within the
jurisdiction of a department or agency of the United States. For a discussion of 18 U.S.C.
1503 and 1505 which outlaw corrupt endeavors to impede the due administration of justice
before the courts and executive tribunal and the due exercise of the power of Congressional
inquiry see CRS Report RL34303, Obstruction of Justice: An Overview of Some of the
Federal Laws that Prohibit Interference with Judicial, Executive or Legislative Activities.
3
18 U.S.C. 1961(1), 1956(c)(7).
4
18 U.S.C. 2, 3, 4, 371.
5
E.g., United States v. Atalig, 502 F.3d 1063, 1065 (9th Cir. 2007)(conspiracy to violate 18
U.S.C. 1001); cf., United States v. Dunne, 324 F.3d 1158, 1162-163 (10th Cir. 2003).
6
18 U.S.C. 1621 (“This section is applicable whether the statement or subscription is made
within or without the United States”); 18 U.S.C. 1623 (“This section is applicable whether
the conduct occurred within or without the United States”).
7
United States v. Walczak, 783 F.2d 852, 854-55 (9th Cir. 1986).
8
Unlike subsection 1621, subsection 1623 permits a conviction in the case of two mutually
inconsistent declarations without requiring proof that one of them is false, 18 U.S.C.
1623(c); it recognizes a limited recantation defense, 18 U.S.C. 1623(d); it dispenses with
the so-called two-witness rule, 18 U.S.C. 1623(e); and it employs a “knowing” mens rea
standard rather than the more demanding “willfully” standard used in subsection 1621.
CRS-3
testimony before federal courts and grand juries.”9 Parsed into elements, Section
1623 declares that:
I. Whoever
II. a. under oath or
b. in any
i. declaration,
ii. certificate,
iii. verification, or
iv. statement
under penalty of perjury as permitted under Section 1746 of title 28, United
States Code10
III. in any proceeding before or ancillary to
a. any court or
b. grand jury of the United States
IV. knowingly
V. a. makes any false material declaration or
b. makes or uses any other information, including any
i. book,
ii. paper,
iii. document,
iv. record,
v. recording, or
vi. other material,
knowing the same to contain any false material declaration,
shall be fined under this title or imprisoned not more than five years, or both.11
In most cases, the courts abbreviate their description of the elements and state
in one form or another that to prove perjury the government must establish that the
9
Dunn v. United States, 442 U.S. 100, 107 (1979), citing, S.REP.NO. 91-617, at 58-9
(1969)(internal citations omitted).
10
“Wherever, under any law of the United States or under any rule, regulation, order, or
requirement made pursuant to law, any matter is required or permitted to be supported,
evidenced, established, or proved by the sworn declaration, verification, certificate,
statement, oath, or affidavit, in writing of the person making the same (other than a
deposition, or an oath of office, or an oath required to be taken before a specified official
other than a notary public), such matter may, with like force and effect, be supported,
evidenced, established, or proved by the unsworn declaration, certificate, verification, or
statement, in writing of such person which is subscribed by him, as true under penalty of
perjury, and dated, in substantially the following form:
“(1) If executed without the United States: ‘I declare (or certify, verify, or state) under
penalty of perjury under the laws of the United States of America that the foregoing is true and
correct. Executed on (date).
(Signature)’.
“(2) If executed within the United States, its territories, possessions, or commonwealths:
‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and
correct. Executed on (date).
(Signature)’.”
11
18 U.S.C. 1623(a).
CRS-4
defendant (1) knowingly made a (2) false (3) material declaration (4) under oath (5)
in a proceeding before or ancillary to any court or grand jury of the United States.12
The allegedly perjurious declaration must be presented in a “proceeding before

or ancillary to any court or grand jury of the United States.” An interview in an
attorney’s office in preparation for a judicial hearing cannot be considered such an
ancillary proceeding,13 but the phrase “proceedings ancillary to” court or grand jury
proceedings does cover proceedings to take depositions in connection with civil
litigation,14 as well as a variety of pretrial proceedings in criminal cases,15 including
habeas proceedings,16 bail hearings,17 venue hearings,18 or suppression hearings.19
The Supreme Court’s observation that a statement that is misleading but literally
true cannot support a conviction under Section 1621 because it is not false,20 applies
with equal force to perjury under Section 1623.21 Similarly, perjury cannot be the
product of confusion, mistake, or faulty memory, but must be a statement that the
defendant knows is false,22 although this requirement may be satisfied with evidence
12
United States v. Safa, 484 F.3d 818, 821 (6th Cir. 2007)(“To convict an individual of a
violation of 18 U.S.C. 1623, the government must prove beyond a reasonable doubt that the
defendant: (1) knowingly made, (2) a materially false declaration (3) under oath (4) in a
proceeding before or ancillary to any court of the United States”); United States v. Pagan-
Santini, 451 F.3d 258, 266 (1st Cir. 2006)(“A statement under oath constitutes perjury if it
is false, known to be so and material to the proceeding”); United States v. Clifton, 406 F.3d
1173, 1177 (10th Cir. 2005)(“The government must prove the following elements beyond a
reasonable doubt under §1623: (1) the defendant made a declaration under oath before a
grand jury; (2) such declaration was false; (3) the defendant knew the declaration was false
and (4) the false declaration was material to the grand jury’s inquiry”); United States v.
Hirsch, 360 F.3d 860, 864-65 (8th Cir. 2004)(the government had to prove the following four
elements beyond a reasonable doubt: (1) Hirsch gave the testimony under oath in his
criminal trial; (2) such testimony was false in whole or in part; (3) at the time he so testified,
he knew his testimony was false; and (4) the false testimony was material”).
13
Dunn v. United States, 442 U.S. 100, 111-12 (1979).
14
Id.; United States v. Wilkinson, 137 F.3d 214, 225 (4th Cir. 1998); United States v.
Holland, 22 F.3d 1040, 1047-48 (11th Cir. 1994); United States v. McAfee, 8 F.3d 1010,
1013-14 (5th Cir. 1993).
15
United States v. Farmer, 137 F.3d 1265 (11th Cir. 1998).
16
United States v. Johnson, 325 F.3d 205, 209 (4th Cir. 2003).
17
United States v. Greene, 591 F.2d 471 (8th Cir. 1979).
18
United States v. Durham, 139 F.3d 1325 (10th Cir. 1998).
19
United States v. Renteria, 138 F.3d 1328 (10th Cir. 1998).
20
Bronston v. United States, 409 U.S. 352, 358-59 (1973).
21
United States v. Richardson, 421 F.3d 17, 32-3 (1st Cir. 2005); United States v. McKenna,
327 F.3d 830, 840-41 (9th Cir. 2003); United States v. Shotts, 145 F.3d 1289, 1297 (11th Cir.
1998); United States v. Hairston, 46 F.3d 361, 375 (4th Cir. 1996).
22
United States v. Fawley, 137 F.3d 458, 466 (7th Cir. 1998); United States v. Reveron
Martinez, 836 F.2d 684, 689 (1st Cir. 1988); cf., United States v. Dunnigan, 507 U.S. 87,
94 (1993).
CRS-5
that the defendant was deliberately ignorant or willfully blind to the fact that the
statement was false.23 On the other hand, “[a] question that is truly ambiguous or
which affirmatively misleads the testifier can never provide a basis for a finding of
perjury, as it could never be said that one intended to answer such a question
untruthfully.”24 Yet ambiguity will be of no avail if the defendant understands the
question and answers falsely nevertheless.25
Materiality is perhaps the most nettlesome of perjury’s elements. It is usually

said that a statement is material “if it has a natural tendency to influence, or is
capable of influencing, the decision of the decisionmaking body to whom it is
addressed.”26 This definition is not easily applied when the precise nature of the
underlying inquiry remains somewhat undefined such as in grand jury proceedings
or in depositions at the discovery stage of a civil suit. On the civil side, the lower
federal courts appear divided between the view (1) that a statement in a deposition
is material if a “truthful answer might reasonably be calculated to lead to the
discovery of evidence admissible at the trial of the underlying suit” and (2) that a
statement is material “if the topic of the statement is discoverable and the false
statement itself had a tendency to affect the outcome of the underlying civil suit for
which the deposition was taken.”27
In the case of perjury before the grand jury, rather than articulate a single
standard the courts have described several circumstances under which false testimony
may be considered material.28 In any event, a statement is no less material because
23
United States v. Fawley, 137 F.3d 458, 466-67 (7th Cir. 1998).
24
United States v. Richardson, 421 F.3d 17, 33 (1st Cir. 2005); United States v. DeZarn, 157
F.3d 1042, 1049 (6th Cir. 1998); see also, United States v. Turner, 500 F.3d 685, 689 (8th Cir.
2007)(“If, however, a question is fundamentally vague or ambiguous, then an answer to that
question cannot sustain a perjury conviction”).
25
United States v. McKenna, 327 F.3d 830, 841 (9th Cir. 2003)(“A question leading to a
statement supporting a perjury conviction is not fundamentally ambiguous where the jury
could conclude beyond a reasonable doubt that the defendant understood the question as did
the government and that so understood, the defendant’s answer was false”); United States
v. Brown, 459 F.3d 509, 529 (5th Cir. 2006); United States v. Turner, 500 F.3d 685, 690 (8th
Cir. 2007).
26
United States v. Brown, 459 F.3d 509, 529 (5th Cir. 2006), citing, United States v. Gaudin,
515 U.S. 506, 509 (1995), and Kungys v. United States, 485 U.S. 759, 770 (1988); United
States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003); United States v. Lee, 359 F.3d 412,
417 (6th Cir. 2003); United States v. Durham, 139 F.3d 1325, 1329 (10th Cir. 1998).
27
United States v. Wilkinson, 137 F.3d 214, 225 (4th Cir. 1998), comparing, United States
v. Kross, 14 F.3d 751, 754 (2d Cir. 1994), and United States v. Holley, 942 F.2d 916, 924
(5th Cir. 1991), with, United States v. Adams, 870 F.2d 1140, 1146-148 (6th Cir. 1989) and
United States v. Clark, 918 F.2d 843, 846 (9th Cir.1990), overruled on other grounds, United
States v. Keys, 133 F.3d 1282, 1286 (9th Cir,. 1998); see also, United States v. McKenna, 327
F.3d 830, 839-40 (9th Cir. 2003)(acknowledging the division and continuing to adhere to the
view expressed in Clark).
28
E.g., United States v. Brown, 459 F.3d 509, 530 n.18 (5th Cir. 2006)(“The materiality
requirement of §1623 has been satisfied in cases where the false testimony was relevant to
any subsidiary issue or was capable of supplying a link to the main issue under
CRS-6
it did not or could not divert the decisionmaker.29
The courts seem to have had less difficulty dealing with a materiality issue
characterized as the perjury trap doctrine. The doctrine arises where a witness is
called for the sole purpose of eliciting perjurious testimony from him.30 Under such
circumstances it is said the tribunal has no valid purpose to which a perjurious
statement could be considered material. The doctrine poses no bar to prosecution in
most cases, however, since the government is usually able to identify some valid
reason for the grand jury's inquiries.31
Subsection 1623(c) permits a perjury conviction simply on the basis of two

necessarily inconsistent material declarations rather than a showing that one of the
two statements is false.32 Conviction does require a showing, however, that the two
consideration”); United States v. Silveira, 426 F.3d 514, 518 (1st Cir. 2005)(“A statement
of witness to a grand jury is material if the statement is capable of influencing the grand jury
as to any proper matter pertaining to its inquiry or which might have influenced the grand
jury or impeded its inquiry. To be material, the statement need not directly concern an
element of the crime being investigated, nor need it actually influence the jury”); United
States v. Burke, 425 F.3d 400, 414 (7th Cir. 2005)(“Even potential interference with a line
of inquiry can establish materiality”); United States v. Blanton, 281 F.3d 771, 775(8th Cir.
2002)(“The statements need not be material to any particular issue, but may be material to
any proper matter of inquiry”); United States v. Plumley, 207 F.3d 1086, 1095-96 (8th Cir.
2000)(“Although it is true that this particular question did not address the ultimate issue. .
. it is not thereby rendered immaterial” citing cases where a statement before the grand jury
was found to be material when a “truthful answer would have raised questions about the role
of others. . . when [the] witness obscures [his] whereabouts or involvement in offense. . .
[and] about peripheral matters [that] can become material when considered in context”).
29
United States v. Silveira, 426 F.3d 514, 518 (1st Cir. 2005); United States v. Lee, 359 F.3d
412, 416 (6th Cir. 2004); United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003).
30
Brown v. United States, 245 F.2d 549, 555 (8th Cir. 1957), quoting, United States v.
Icardi, 140 F.Supp. 383, 384-88 (D.D.C. 1956); but see, United States v. Burke, 425 F.3d
400, 408 (7th Cir. 2005)(“We have not embraced this doctrine, however, and do not see any
reason to adopt it now”)(internal citations omitted).
31
United States v. McKenna, 327 F.3d 830, 837 (9th Cir. 2003)(“Here, the government did
not use its investigatory powers to question McKenna before a grand jury. Rather, it merely
questioned McKenna in its role as a defendant during the pendency of a civil action in which
she was the plaintiff. The perjury trap doctrine is inapplicable to McKenna’s case for this
reason”); United States v. Regan, 103 F.3d 1073, 1079 (2d Cir. 1997)(“[w]e have noted that
the existence of a legitimate basis for an investigation and for particular questions answered
falsely precludes any application of the perjury trap doctrine”); United States v. Chen, 933
F.2d 793, 797 (9th Cir. 1991)(“[w]hen testimony is elicited before a grand jury that is
attempting to obtain useful information in furtherance of its investigation or conducting a
legitimate investigation into crimes which had in fact taken place within its jurisdiction, the
perjury trap doctrine is, by definition, inapplicable”), quoting, United States v. Devitt, 499
F.2d 135, 140 (7th Cir. 1974) and United States v. Chevoor, 526 F.2d 178, 185 (1st Cir.
1975).
32
18 U.S.C. 1623(c)(“An indictment or information for violation of this section alleging
that, in any proceedings before or ancillary to any court or grand jury of the United States,
the defendant under oath has knowingly made two or more declarations, which are
CRS-7
statements were made under oath; it is not enough to show that one was made under
oath and the other was made in the form of an affidavit signed under penalty of
perjury.33 Moreover, the statements must be so inherently contradictory that one of
them of necessity must be false.34
Some years ago, the Supreme Court declined to reverse an earlier ruling that
“[t]he general rule in prosecutions for perjury is that the uncorroborated oath of one
witness is not enough to establish the falsity of the testimony of the accused set forth
in the indictment.”35 Subsection 1623(e) permits a perjury conviction without
compliance with this traditional two witness rule.36 Since the two witness rule rests
on the common law rather than on a constitutional foundation, it may can be
abrogated by statute without offending constitutional principles.37
Most of the other subsections of Section 1623 are designed to overcome

obstacles which the common law placed in the path of a successful perjury
prosecution. Subsection 1623(d), in contrast, offers a defense unrecognized at
common law. The defense is stated in fairly straightforward terms, “[w]here in the
same continuous court or grand jury proceeding in which a declaration is made, the
inconsistent to the degree that one of them is necessarily false, need not specify which
declaration is false if – (1) each declaration was material to the point in question, and (2)
each declaration was made within the period of the statute of limitations for the offense
charged under this section. In any prosecution under this section, the falsity of a declaration
set forth in the indictment or information shall be established sufficient for conviction by
proof that the defendant while under oath made irreconcilably contradictory declarations
material to the point in question in any proceeding before or ancillary to any court or grand
jury. It shall be a defense to an indictment or information made pursuant to the first
sentence of this subsection that the defendant at the time he made each declaration believed
the declaration was true”); United States v. Dunn, 442 U.S.100, 108 (1979)(“By relieving
the government of the burden of proving which of two or more inconsistent declarations was
false, see §1623(c), Congress sought to afford greater assurance that testimony obtained in
grand jury and court proceedings will aid the cause of truth”).
33
United States v. Jaramillo, 69 F.3d 388 (9th Cir. 1995).
34
United States v. McAfee, 8 F.3d 1010, 1014-15 (5th Cir. 1993)(“The Government must
show that the statements are so irreconcilable that one of the statements is ‘necessarily
false.’ We find the Fourth Circuit's explanation of §1623(c) instructive and adopt the
standard set forth in United States v. Flowers, 813 F.2d 1320 (4th Cir. 1987). In Flowers,
the court concluded that subsection 1623(c) ‘requires a variance in testimony that extends
beyond mere vagueness, uncertainty, or equivocality. Even though two declarations may
differ from one another, the §1623(c) standard is not met unless taking them into context,
they are so different that if one is true there is no way the other can also be true.’” Id. at
1324; see also United States v. Porter, 994 F.2d 470 (8th Cir. 1993)).
35
Weiler v. United States, 323 U.S. 606, 607 (1945).
36
18 U.S.C. 1623(e)(“Proof beyond a reasonable doubt under this section is sufficient for
conviction. It shall not be necessary that such proof be made by any particular number of
witnesses or by documentary or other type of evidence”). See also United States v. Kemp,
500 F.3d 257, 294 (3d Cir. 2007).
37
United States v. Ruggiero, 472 F.2d 599, 606 (2d Cir. 1973); United States v. Diggs, 560
F.2d 266, 269 (7th Cir. 1977)(citing cases in accord).
CRS-8
person making the declaration admits such declaration to be false, such admission
shall bar prosecution under this section if, at the time the admission is made, the
declaration has not substantially affected the proceeding, or it has not become
manifest that such falsity has been or will be exposed,” 18 U.S.C. 1623(d). Although
phrased in different terms, the courts seem to agree that repudiation of the false
testimony must be specific and thorough.38 There is some disagreement whether a
recanting defendant must be denied the defense if both the substantial impact and
manifest exposure conditions have been met or if the defense must be denied if either
condition exists. Most courts have concluded that the presence of either condition
dooms the defense.39
Early construction required that a defendant establish both that his false
statement had not substantially affected the proceeding before his recantation and
that it had not become manifest that his false statement would be exposed.40 One
more recent appellate case, however, decided that the defense should be available to
a witness who could show a want of either an intervening adverse impact or of likely
exposure of his false statement.41 Even without the operation of subsection 1623(d),
relatively contemporaneous corrections of earlier statements may negate any
inference that the witness is knowingly presenting false testimony and thus preclude
conviction for perjury.42
Perjury Generally (18 U.S.C. 1621)

When Congress passed Section 1623, it did not repeal Section 1621 either
explicitly or by implication; where its proscriptions overlap with those of Section
1623, the government is free to choose under which it will prosecute.43 Since Section
1623 frees prosecutors from many of the common law requirements of Section 1621,
it is perhaps not surprising that they ordinarily elect to prosecute under subsection
1623. Section 1623 does outlaw perjury under a wider range of circumstances than
Section 1621; it prohibits perjury before official proceedings generally – both judicial
and nonjudicial. Separated into its elements, the section provides that:
38
United States v. Tobias, 863 F.2d 685, 689 (9th Cir. 1988)(unequivocal repudiation);
United States v. Scivola, 766 F.2d 37, 45 (1st Cir. 1985)(implicit recantation is insufficient);
United States v. Goguen, 723 F.2d 1012, 1017 (1st Cir. 1983) (outright retraction and
repudiation).
39
United States v. Sherman, 150 F.3d 306, 313-18 (3d Cir. 1998); United States v. Fornaro,
894 F.2d 508, 510-11 (2d Cir. 1990); United States v. Scivola, 766 F.2d 37, 45 (1st Cir.
1985); United States v. Denison, 663 F.2d 611, 615 (5th Cir. 1981); United States v. Moore,
613 F.2d 1029, 1043 (D.C.Cir. 1979); contra, United States v. Smith, 35 F.3d 344, 345-47
(8th Cir. 1994).
40
United States v. Moore, 613 F.2d 1029, 1043-44 (D.C. Cir. 1979); United States v.
Srimgeour, 636 F.2d 1019, 1021 (5th Cir. 1980); United States v. Scivola, 766 F.2d 37, 45
(1st Cir. 1985); United States v. Formaro, 894 F.2d 508, 510-11 (2d Cir. 1990).
41
United States v. Smith, 35 F.3d 344, 345 (8th Cir. 1994).
42
United States v. McAfee, 8 F.3d 1010, 1014 (5th Cir. 1993).
43
United States v. Sherman, 150 F.3d 306, 312-13 (3d Cir. 1998); United States v.
Ruggiero, 472 F.2d 599, 606 (2d Cir. 1973).
CRS-9
(1)
I. Whoever having taken an oath

II. before a competent tribunal, officer, or person,
III. in any case in which a law of the United States authorizes an oath to be
administered,
IV. a. that he will
i. testify,
ii. declare,
iii. depose, or
iv, certify truly, or
b. that any written
i. testimony,
ii. declaration,
iii. deposition, or
iv. certificate
by him subscribed, is true,
V. willfully and contrary to such oath
VI. a. states or
b. subscribes
any material matter which he does not believe to be true; or
(2)
I. Whoever in any
a. declaration,
b. certificate,
c. verification, or
d. statement
under penalty of perjury as permitted under Section 1746 of title 28, United States
Code,
II. willfully subscribes as true
III. any material matter
IV. which he does not believe to be true
is guilty of perjury and shall, except as otherwise expressly provided by law, be fined
under this title or imprisoned not more than five years, or both. This section is
applicable whether the statement or subscription is made within or without the United
States.44
The courts generally favor an abbreviated encapsulation such as the one found
in United States v. Dunnigan: “A witness testifying under oath or affirmation violates
this section if she gives false testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result of confusion, mistake, or
faulty memory.”45
44
18 U.S.C. 1621.
45
United States v. Dunnigan, 507 U.S. 87, 94 (1993); United States v. McKenna, 327 F.3d
830, 838 (9th Cir. 2003); United States v. Singh, 291 F.3d 756, 763 n.4 (11th Cir. 2002);
United States v. Nash, 175 F.3d 429, 438 (6th Cir. 1999); see also, United States v. Dumeisi,
424 F.3d 566, 582 (7th Cir. 2005)(“the elements of perjury are (1) testimony under oath
before a competent tribunal, (2) in a case in which United States law authorizes the
administration of an oath, (3) false testimony, (4) concerning a material matter, (5) with the
CRS-10
Perjury is only that testimony which is false. Thus, testimony that is literally
true, even if deceptively so, cannot be considered perjury for purposes of a
prosecution under Section 1621.46 Moreover, Section 1621 requires compliance with
“the two witness rule” to establish that a statement is false. Under the rule, “the
uncorroborated oath of one witness is not sufficient to establish the falsity of the
testimony of the accused as set forth in the indictment as perjury.”47 Thus,
conviction under Section 1621 requires that the government “establish the falsity of
the statement alleged to have been made by the defendant under oath, by the
testimony of two independent witnesses or one witness and corroborating
circumstances.”48 If the rule is to be satisfied with corroborative evidence, the
evidence must be trustworthy and support the account of the single witness upon
which the perjury prosecution is based.49
The test for materiality under Section 1621 is whether the false statement “has
a natural tendency to influence or [is] capable of influencing the decision-making
body to which it [is] addressed.”50
Conviction under Section 1621 requires not only that the defendant knew his
statement was false (“which he does not believe to be true”), but that his false
statement is “willfully” presented. There is but scant authority on precisely what
“willful” means in this context. The Supreme Court in dicta has indicated that
willful perjury consists of “deliberate material falsification under oath.”51 Other
willful intent to provide false testimony”).

46
Bronston v. United States, 409 U.S. 352, 362 (1972) (“It may well be that petitioner’s
answers were not guileless but were shrewdly calculated to evade. Nevertheless . . . any
special problems arising from the literally true but unresponsive answer are to be remedied
through the questioner's acuity and not by a federal perjury prosecution”); see also, United
States v. McKenna, 327 F.3d 830, 841 (9th Cir. 2003); United States v. Roberts, 308 F.3d
1147, 1152 (11th Cir. 2002); United States v. DeZarn, 157 F.3d 1042, 1047-48 (6th Cir.
1998).
47
Hammer v. United States, 271 U.S. 620, 626 (1926).
48
Weiler v. United States, 323 U.S. 606, 607 (1945); United States v. Stewart, 433 F.3d
273, 315 (2d Cir. 2006); United States v. Chaplin, 25 F.3d 1373, 1377 (7th Cir. 1994).
49
Weiler v. United States, 323 U.S. 606, 610 (1945); United States v. Stewart, 433 F.3d
273, 315 (2d Cir. 2206)(“The rule is satisfied by the direct testimony of a second witness
or by other evidence of independent probative value, circumstantial or direct, which is of
a quality to assure that a guilty verdict is solidly founded. The independent evidence must,
by itself, be inconsistent with the innocence of the defendant. However, the corroborative
evidence need not, it itself, be sufficient, if believed to support a conviction”).
50
United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003); United States v. Roberts,
308 F.3d 1147, 1155 (11th Cir. 2002); United States v. Allen, 892 F.2d 66, 67 (10th Cir.
1989); United States v. Mareno Morales, 815 F.2d 725, 747 (1st Cir. 1987).
51
United States v. Norris, 300 U.S. 564, 574 (1937)(emphasis added).
CRS-11
courts have referred to it as acting with an “intent to deceive”52 or as acting

“intentionally.”53
Although a contemporaneous correction of a false statement may demonstrate

the absence of the necessary willful intent to commit perjury, the crime is completed
when the false statement is presented to the tribunal; without a statute such as that
found in Section 1623, recantation is no defense nor does it bar prosecution.54
Subornation of Perjury (18 U.S.C. 1622)

Section 1622 outlaws procuring or inducing another to commit perjury:
“Whoever procures another to commit any perjury is guilty of subornation of perjury,
and shall be fined under this title or imprisoned for not more than five years, or
both,” 18 U.S.C. 1622. The crime consists of two elements – (1) an act of perjury
committed by another (2) induced or procured by the defendant. Perjury under either
Section 1621 or 1623 will support a conviction for subornation under Section 1622,55
but proof of the commission of an act of perjury is a necessary element of
subornation.56 Although the authorities are exceptionally sparse, it appears that to
suborn one must know that the induced statement is false and that at least to suborn
under Section 1621 one must also knowingly and willfully induce.57 Subornation is
only infrequently prosecuted as such perhaps because of the ease with which it can
now be prosecuted as an obstruction of justice under either 18 U.S.C. 1503 or 151258
which unlike Section 1622 do not insist upon suborner success as a prerequisite to
prosecution.59
52
United States v. Rose, 215 F.2d 617, 622-23 (3d Cir. 1954).
53
United States v. Friedman, 854 F.2d 535, 560 (2d Cir. 1988); United States v. Mounts,
35 F.3d 1208, 1219 (7th Cir. 1994).
54
United States v. Norris, 300 U.S. 564, 574 (1934); United States v. McAfee, 8 F.3d 1010,
1017 (5th Cir. 1993).
55
United States v. Endo, 635 F.2d 321, 322 (4th Cir. 1980).
56
United States v. Hairston, 46 F.3d 361, 376 (4th Cir. 1995)(if the underlying perjury
conviction is reversed for insufficient evidence, the subornation conviction must likewise
be reversed); see also, United States v. Silverman, 745 F.2d 1386, 1394 (11th Cir. 1984).
57
Rosen v. N.L.R.B., 735 F.2d 564, 575 n.19 (4th Cir. 1980)(“it is true that a necessary
predicate of the charge of subornation of perjury is the suborner’s belief that the testimony
sought is in fact false”); Petite v. United States, 262 F.2d 788, 794 (4th Cir. 1959)(“[i]t is
essential to subornation of perjury that the suborner should have known or believed or have
had good reason to believe that the testimony given would be false, that he should have
known or believed that the witness would testify willfully and corruptly, and with
knowledge of the falsity; and that he should have knowingly and willfully induced or
procured the witness to give such false testimony”)(Petite only refers to Section 1621 since
it was decided prior to the enactment of Section 1623).
58
United States v. Miller, 161F.3d 977, 982-84 (6th Cir. 1998).
59
18U.S.C. 1503 (emphasis added) (“Whoever . . . endeavors to influence, obstruct, or
impede the due administration of justice . . .”); 1512 (b) (emphasis added) (“Whoever . . .
corruptly persuades another person, or attempts to do so . . . with intent to influence . . . the
CRS-12
False Statements (18 U.S.C. 1001)

The general false statement statute, 18 U.S.C. 1001, outlaws false statements,
concealment, or false documentation in any matter within the jurisdiction of any of
the three branches of the federal government, although it limits application in the
case of Congress and the courts.60 More specifically it states:
I. Except as otherwise provided in this section,

II. whoever, in any matter within the jurisdiction of the executive,
legislative, or judicial branch of the Government of the
United States,
III. knowingly and willfully –
IV. a. falsifies, conceals, or covers up by any trick, scheme,
or device a material fact;
b. makes any materially false, fictitious, or fraudulent
statement or representation; or
c. makes or uses any false writing or document knowing
the same to contain any materially false, fictitious, or fraudulent statement or
entry;
shall be fined under this title, imprisoned not more than 5 years or, imprisoned not
more than 8 years if the offense involves international or domestic terrorism (as
defined in section 2331) or if the matter relates to an offense under chapter 109A
(sexual abuse), 109B (sex offender registration), 110 (sexual exploitation), or 117
(transportation for illicit sexual purposes), or Section 1591 (sex trafficking).61
testimony of any person in an official proceeding . . .”).

60
There are scores of more limited false statement statutes that relate to particular agencies
or activities and include 8 U.S.C. 1160(b)(7)(A) (applications for immigration status); 15
U.S.C. 158 (China Trade Act corporate personnel); 15 U.S.C. 645 (Small Business
Administration); 15 U.S.C. 714m (Commodity Credit Corporation); 16 U.S.C. 831t ( TVA);
18 U.S.C. 152 ( bankruptcy); 18 U.S.C. 287 (false or fraudulent claims against the United
States); 18 U.S.C. 288 (postal losses); 18 U.S.C. 289 (pensions); 18 U.S.C. 541 (entry of
goods falsely classified); 18 U.S.C. 542 (entry of goods by means of false statements); 18
U.S.C. 550 (refund of duties); 18 U.S.C. 1003 (fraudulent claims against the United States);
18 U.S.C. 1007 (FDIC transactions); 18 U.S.C. 1011 (federal land bank mortgage
transactions); 18 U.S.C. 1014 (loan or credit applications in which the United States has an
interest); 18 U.S.C. 1015 (naturalization, citizenship or alien registry); 18 U.S.C. 1019 (false
certification by consular officer); 18 U.S.C. 1020 (highway projects); 18 U.S.C. 1022 (false
certification concerning material for the military); 18 U.S.C. 1027 (ERISA); 18 U.S.C. 1542
(passport applications); 18 U.S.C. 1546 (fraud in connection with visas, permits and other
documents); 22 U.S.C. 1980 (compensation for loss of commercial fishing vessel or gear);
22 U.S.C. 4221 (American diplomatic personnel); 22 U.S.C. 4222 (presentation of forged
documents to United States foreign service personnel); 42 U.S.C. 408 (old age claims); 42
U.S.C. 1320a-7b (Medicare).
61
18 U.S.C. 1001(a). For addition discussion of Section 1512 see, Twenty-Second Survey
of White Collar Crime: False Statements and False Claims, 44 AMERICAN CRIMINAL LAW
REVIEW 491 (2007).
CRS-13
The courts’ description of the elements will ordinarily be limited to whichever

of the forms of misconduct – false statement,62 concealment,63 or false
documentation64 – is implicated in the particular case. In addition, Section 1001
imposes a limitation upon an offense that involves matters within the jurisdiction of
either the judicial or legislative branch:
(b) Subsection (a) does not apply to a party to a judicial proceeding, or that
party's counsel, for statements, representations, writings or documents submitted by
such party or counsel to a judge or magistrate in that proceeding.
(c) With respect to any matter within the jurisdiction of the legislative branch,
subsection (a) shall apply only to – (1) administrative matters, including a claim for
payment, a matter related to the procurement of property or services, personnel or
employment practices, or support services, or a document required by law, rule, or
regulation to be submitted to the Congress or any office or officer within the
legislative branch; or (2) any investigation or review, conducted pursuant to the
authority of any committee, subcommittee, commission or office of the Congress,
consistent with applicable rules of the House or Senate. 18 U.S.C. 1001(b),(c).
Those limitations constitute elements of the offense in such cases.65
A matter is within the jurisdiction of a federal entity when it involves a matter

“confided to the authority of a federal agency or department . . . A department or
agency has jurisdiction, in this sense, when it has power to exercise authority in a
particular situation. Understood in this way, the phrase ‘within the jurisdiction’
merely differentiates the official, authorized functions of a agency or department
from matters peripheral to the business of that body.”66 Several courts have held that
the phrase contemplates coverage of false statements made to state, local, or private
62
United States v. Blackwell, 459 F.3d 739, 761 (6th Cir. 2006)(“Section 1001 of Title 18
prohibits any person from (1) ‘knowingly and wilfully’; (2) ‘making any material false,
fictitious, or fraudulent statement or representation’; (3) ‘in any matter within the
jurisdiction of the executive, legislative , or judicial branch of the Government of the United
States”); United States v. Rice, 449 F.3d 887, 892 (8th Cir. 2006); United States v. Hatch,
434 F.3d 1, 5 (1st Cir. 2006); United States v. Camper, 384 F.3d 1073, 1075 (9th Cir. 2004).
63
United States v. Moore, 446 F.3d 671, 677 (7th Cir. 2006)(“We have identified the five
elements of a ‘false statement’ charge under §1001(a)(2) . . . (1) the defendant must . . have
a duty to disclose the information; (2) . . . there must be acts amounting to concealment; (3)
the . . . concealed facts must be material; (4) the person must . . . conceal the facts
knowingly and willfully; and (5) the . . . concealed information must concern a matter within
the jurisdiction of a federal department or agency”).
64
United States v. McGauley, 279 F.3d 62, 69 (1st Cir. 2002)(“To establish a violation of
18 U.S.C. 1001, the government must prove that the defendant knowingly and willfully
made or used a false writing or document, in relation to a matter with the jurisdiction of the
United States government with knowledge of its falsity”); United States v. Blankenship, 382
F.3d 1110, 1131-132 (11th Cir. 2004).
65
United States v. Horvath, 492 F.3d 1075, 1077 (9th Cir. 2007); United States v. Pickett,
353 F.3d 62, 66-69 (D.C. Cir. 2004).
66
United States v. Rodgers, 466 U.S. 475, 479 (1984); United States v. Atalig, 502 F.3d
1063, 1068 (9th Cir. 2007); United States v. Blankenship, 382 F.3d 1110, 1136 (11th Cir.
2004); United States v. White, 270 F.3d 356, 363 (6th Cir. 2001).
CRS-14
entities but relating to matters that involve federal funds or regulations.67 Subsection
1001(b) precludes application of prohibitions in Section 1001(a) to the statements,
omissions, or documentation presented to the court by a party in judicial proceedings.
This includes statements of indigency filed by a defendant seeking the appoint of
counsel,68 or by a defendant for a probation officer’s presentence report;69 but not
statements made by one on supervised release to a parole officer.70
Although the offense can only be committed “knowingly and willfully,” the
prosecution need not prove that the defendant knew that his conduct involved a
“matter within the jurisdiction” of a federal entity71 nor that he intended to defraud
a federal entity.72 Instead, the phrase “knowingly and willfully” refers to the
circumstances under which the defendant made his statement, omitted a fact he was
obliged to disclose, or included with his false documentation, i.e., “that the defendant
knew that his statement was false when he made it or – which amounts in law to the
same thing – consciously disregarded or averted his eyes from the likely falsity.”73
Prosecution for a violation of Section 1001 requires proof of materiality, as does

conviction for perjury, and the standard is the same: the statement must have a
“natural tendency to influence, or be capable of influencing the decisionmaking body
67
United States v. White, 270 F.3d 356, 363 (6th Cir. 2001)(“We have in the past looked to
whether the entity to which the statements were made received federal support and/or was
subject to federal regulation”); United States v. Davis, 8 F.3d 923, 929 (2d Cir. 1993)(“In
situations in which a federal agency is overseeing a state agency, it is the mere existence of
the federal agency’s supervisory authority that is important to determining jurisdiction”),
contra, United States v. Blankenship, 382 F.3d 1110, 1139, 1141 (11th Cir. 2004)(emphasis
in the original) (“The clear, indisputable holding of Lowe is that a misrepresentation made
to a private company concerning a project that is the subject of a contract between that
company and the federal government does not constitute a misrepresentation about a matter
within the jurisdiction of the federal government. . . . Because neither Lowe not its central
holding has ever been overruled . . . it remains good law”).
68
United States v. McNeil, 362 F.3d 570, 573 (9th Cir. 2004)(but observing that
“[s]ubmitting a false CJA-23 form may subject a defendant to criminal liability under other
statutes, for example, under 18 U.S.C. 1621, the general statute on perjury, or 18 U.S.C.
1623, which punishes the making of a false material declaration in any proceeding, before,
or ancillary to, any court”).
69
United States v. Horvath, 492 F.3d 1075, 1078-1081 (9th Cir. 2007).
70
United States v. Curtis, 237 F.3d 598, 605 (6th Cir. 2001).
71
United States v. Yermian, 468 U.S. 63, 75 (1984); United States v. Gonzales, 435 F.3d
64, 72 (1st Cir. 2006).
72
United States v. Gonzales, 435 F.3d 64, 72 (1st Cir. 2006).
73
Id.; United States v. Duclos, 214 F.3d 27, 33 (1st Cir. 2000); United States v. Hsia, 176
F.3d 716, 721-22 (D.C. Cir. 1999); United States v. Hoover, 175 F.3d 564, 571 (7th Cir.
1999).
CRS-15
to which it is addressed.”74 There is no need to show that the decision maker was
in fact diverted or influenced.75
Conviction for false statements or false documentation under Section 1001 also
requires that the statements or documentation be false, that they not be true.76 And
the same can be said of the response to a question that is so fundamentally ambiguous
that the defendant’s answer cannot be said to be knowingly false.77 On the other
hand, unlike the perjury provision of Section 1623, “there is no safe harbor for
recantation or correction of a prior false statement that violates Section 1001.”78
Prosecutions under subsection 1001(a)(1) for concealment, rather than false

statement or false documentation, must also prove the existence of duty or legal
obligation not to conceal.79
Selected Bibliography
Green, Uncovering the Cover-Up Crimes, 42 AMERICAN CRIMINAL LAW REVIEW 9
(2005)
74
United States v. Johnson, 485 F.3d 1264, 1270 (11th Cir. 2007); United States v. McBane,
433 F.3d 344, 350 (3d Cir. 2005); United States v. Stewart, 433 F.3d 273, 318 (2d Cir.
2006); United States v. Mitchell, 388 F.3d 1139, 1143 (8th Cir. 2004); United States v. Finn,
375 F.3d 1033, 1038 (10th Cir. 2004).
75
United States v. McBane, 433 F.3d 344, 350 (3d Cir. 2005), quoting, United States v.
Gaudin, 515 U.S. 506, 512 (1995); United States v. Stewart, 420 F.3d 1007, 1019 (9th Cir.
2005); United States v. Mitchell, 388 F.3d 1139, 1143 (8th Cir. 2004); United States v.
Hasner, 340 F.3d 1261, 1273-274 (11th Cir. 2003).
76
United States v. Good, 326 F.3d 589, 592 (4th Cir. 2003)(“The principle articulated in
Bronston holds true for convictions under Section 1001. . . We cannot uphold a conviction
. . . where the alleged statement forming the basis of a violation of Section 1001 is true on
its face”); United States v. Edwards, 303 F.3d 606, 637 (5th Cir. 2002); United States v.
Kosth, 257 F.3d 712, 719 (7th Cir. 2001).
77
United States v. Culliton, 328 F.3d 1074, 1078 (9th Cir. 2003); United States v. Good, 326
F.3d 589, 592 (4th Cir. 2003); cf., United States v. Martin, 369 F.3d 1046, 1060 (8th Cir.
2004); United States v. Hatch, 434 U.S. 1, 4-5 (1st Cir. 2006).
78
United States v. Stewart, 433 F.3d 273, 318 (2d Cir. 2006), citing, United States v.
Sebaggala, 256 F.3d 59, 64 (1st Cir. 2001); United States v. Meuli, 8 F.3d 1481, 1486-487
(10th Cir. 1993); and United States v. Fern, 696 F.2d 1269, 1275 (11th Cir. 1983).
79
United States v. Stewart, 433 F.3d 273, 318-19 (2d Cir. 2006)(“Defendant’s legal duty
[as a broker] to be truthful under Section 1001 included a duty fo disclose the information
regarding the circumstances of Stewart’s December 27th trade . . . .Trial testimony indicated
that the SEC had specifically inquired about [his] knowledge of Stewart’s trades. As a
result, it was plausible for the jury to conclude that the SEC’s questioning and triggered
[his] duty to disclose and that ample evidence existed that his concealment was material to
the investigation ”); United States v. Moore, 446 F.3d 671, 678-79 (7th Cir. 2006)(regulatory
obligation); United States v. Gibson, 409 F.3d 325, 333 (6th Cir. 2005)(“Conviction on a 18
U.S.C. 1001 concealment charge requires a showing that the ‘defendant had a legal duty to
disclose the facts at the time he was alleged to have concealed them’”), quoting, United
States v. Curran, 20 F.3d 560, 566 (3d Cir. 1994).
CRS-16
Harrison, Recantation: Illusion or Reality? 2006 MICHIGAN STATE LAW REVIEW 637
Twenty-Second Survey of White Collar Crime: Perjury, 44 AMERICAN CRIMINAL

LAW REVIEW 829 (2007)
Construction and Application of §2J1.3 of the United States Sentencing Guidelines

(U.S.S.G. §2J1.3), Pertaining to Sentencing for Perjury, Subornation of Perjury, and
Witness Bribery, and Departures Therefrom, 130 ALR FED. 269
Determination of “Materiality” Under 18 USCS §1623, Penalizing False Material

Declarations Before Grand Jury or Court, 60 ALR FED. 76
Determination of Materiality Under 18 USCS §§1621, 1622, 22 ALR FED. 379
Effect of Federal Prosecutor’s Failure to Warn of Status as a Target or Subject of

Grand Jury Investigation Upon Subsequent Prosecution for Perjury Based on
Testimony of Grand Jury, 89 ALR FED. 498
Recantation as Bar to Perjury Prosecution Under 18 USCS §1623(d), 65 ALR FED.

177
Two-Witness Rule in Perjury Prosecutions Under 18 USCS §1621, 49 ALR FED. 185
Recantation as Bar to Perjury Prosecution Under 18 USCS §1623(d), 65 ALR FED.

177
Two-Witness Rule in Perjury Prosecutions Under 18 USCS §1621, 49 ALR FED. 185
Order Code RS22783
December 27, 2007
Obstruction of Justice: An Abridged Overview

of Related Federal Criminal Laws
Charles Doyle
Senior Specialist
American Law Division
Summary
Obstruction of justice is the frustration of governmental purposes by violence,

corruption, destruction of evidence, or deceit. It is a federal crime. In fact, it is several
crimes. Obstruction prosecutions regularly involve charges under several statutory
provisions. Federal obstruction of justice laws are legion; too many for even passing
reference to all of them in a single report.
The general obstruction of justice provisions are six: 18 U.S.C. 1512 (tampering
with federal witnesses), 1513 (retaliating against federal witnesses), 1503 (obstruction
of pending federal court proceedings), 1505 (obstruction of pending Congressional or
federal administrative proceedings), 371 (conspiracy), and contempt. In addition to
these, there are a host of other statutes that penalize obstruction by violence, corruption,
destruction of evidence, or deceit.
This is an abridged version of CRS Report RL34303, Obstruction of Justice: An
Overview of Some of the Federal Laws that Prohibit Interference with Judicial,
Executive or Legislative Activities, without the footnotes, quotations, or citations to
authority found in the longer report.
Witness Tampering (18 U.S.C. 1512). Section 1512 applies to the obstruction
of federal proceedings – judicial, congressional, or executive. It consists of four
somewhat overlapping crimes: use of force or the threat of the use of force to prevent the
production of evidence (18 U.S.C. 1512(a)); use of deception or corruption or
intimidation to prevent the production of evidence (18 U.S.C. 1512(b)); destruction or
concealment of evidence or attempts to do so (18 U.S.C. 1512(c)); and witness
harassment to prevent the production of evidence (18 U.S.C. 1512(d)).
Obstruction by Violence (18 U.S.C. 1512(a)). Subsection 1512(a) has slightly

different elements depending upon whether the offense involves a killing or attempted
killing – 18 U.S.C. 1512(a)(1) or some other use of physical force or a threat – 18 U.S.C.
1512(a)(2). In essence, it condemns the use of violence to prevent a witness from
CRS-2
testifying or producing evidence for an investigation and sets its penalties according to
whether the obstructive violence was a homicide, an assault or a threat.
Auxiliary Offenses and Liability. Subsection 1512(k) makes conspiracy to

violate Section 1512 a separate offense subject to the same penalties as the underlying
offense. The section serves as an alternative to a prosecution under 18 U.S.C. 371 that
outlaws conspiracy to violate any federal criminal statute. Section 371 is punishable by
imprisonment for not more than 5 years and conviction requires the government to prove
the commission of an overt act in furtherance of the scheme by one of the conspirators.
Subsection 1512(k) has no specific overt act element, and the courts have generally
declined to imply one under such circumstances. Regardless of which section is invoked,
conspirators are criminally liable under the Pinkerton doctrine for any crime committed
in the foreseeable furtherance of the conspiracy.
Accomplices to a violation of subsection 1512(a) may incur criminal liability by

operation of 18 U.S.C. 2, 3, 4, or 373 as well. Section 2 treats accomplices before the fact
as principals, that is, it declares that those who command, procure or aid and abet in the
commission of a federal crime by another, are to be sentenced as if they committed the
offense themselves.1 As a general rule, in order to aid and abet another to commit a crime
it is necessary that a defendant in some way associate himself with the venture, that he
participate in it as in something he wishes to bring about, that he seek by his action to
make it succeed. It is also necessary to prove that someone else committed the underlying
offense. Section 3 outlaws acting as an accessory after the fact, which occurs when one
knowing that an offense has been committed, receives, relieves, comforts or assists the
offender in order to hinder his or her apprehension, trial, or punishment. Prosecution
requires the commission of an underlying federal crime by someone else. Offenders face
sentences set at one half of the sentence attached to the underlying offense, or if the
underlying offense is punishable by life imprisonment or death, by imprisonment for not
more than 15 years (and a fine of not more than $250,000). The elements of misprision
of felony under 18 U.S.C. 4 are (1) the principal committed and completed the felony
alleged; (2) the defendant had full knowledge of that fact; (3) the defendant failed to
notify the authorities; and (4) defendant took steps to conceal the crime. The offense is
punishable by imprisonment for not more than 3 years and/or a fine of not more than
$250,000. Solicitation to commit an offense under subsection 1512(a), or any other crime
of violence, is proscribed in 18 U.S.C. 373. To establish solicitation under §373, the
Government must demonstrate that the defendant (1) had the intent for another to commit
a crime of violence and (2) solicited, commanded, induced or otherwise endeavored to
persuade such other person to commit the crime of violence under circumstances that
strongly corroborate evidence of that intent. Section 373 provides an affirmative statutory
defense for one who prevents the commission of the solicited offense.2 Offenders face
1
18 U.S.C. 2 (“(a) Whoever commits an offense against the United States or aids, abets,
counsels, commands, induces or procures its commission, is punishable as a principal. (b)
Whoever willfully causes an act to be done which if directly performed by him or another would
be an offense against the United States, is punishable as a principal”).
2
18 U.S.C. 373(b), (c)(“(b) It is an affirmative defense to a prosecution under this section that,
under circumstances manifesting a voluntary and complete renunciation of his criminal intent,
the defendant prevented the commission of the crime solicited. A renunciation is not "voluntary
and complete" if it is motivated in whole or in part by a decision to postpone the commission of
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penalties set at one half of the sanctions for the underlying offense, but imprisonment for
not more than 20 years, if the solicited crime of violence is punishable by death or
imprisonment for life. A subsection 1512(a) violation opens up the prospect of
prosecution for other crimes for which a violation of subsection 1512(a) may serve as an
element. The federal money laundering and racketeering statutes are perhaps the most
prominent examples of these. The racketeering statutes (RICO) outlaw acquiring or
conducting the affairs of an interstate enterprise through a pattern of predicate offenses.
Section 1512 offenses are RICO predicate offenses. RICO violations are punishable by
imprisonment for not more that 20 years (or imprisonment for life if the predicate offense
carries such a penalty), a fine of not more than $250,000 and the confiscation of related
property. The money laundering provisions, among other things, prohibit financial
transactions involving the proceeds of a predicate offense. RICO predicate offenses are
by definition money laundering predicate offenses. Money laundering is punishable by
imprisonment for not more than 20 years, a fine, and the confiscation of related property.
Obstruction by Intimidation, Threats, Persuasion, or Deception (18

U.S.C. 1512(b). The second group of offenses within Section 1512 outlaws obstruction
of federal Congressional, judicial, or administrative activities by intimidation, threat,
corrupt persuasion or deception. In more general terms, subsection 1512(b) bans (1)
knowingly, (2) using one of the prohibited forms of persuasion (intimidation, threat,
misleading or corrupt persuasion), (3) with the intent to prevent a witness’s testimony or
physical evidence from being truthfully presented at official federal proceedings or with
the intent to prevent a witness from cooperating with authorities in a matter relating to a
federal offense. It also bans any attempt to so intimidate, threaten, or corruptly persuade.
The conspiracy, accomplice, RICO and money laundering attributes are equally applicable
to subsection 1512(b) offenses.
Obstruction by Destruction of Evidence or Harassment (18 U.S.C.

1512(c), 1512(d)). Subsection 1512(c) proscribes obstruction of official proceedings by
destruction of evidence and is punishable by imprisonment for not more than 20 years.
Subsection 1512(d) outlaws harassing federal witnesses and is a misdemeanor punishable
by imprisonment for not more than one year. Both enjoy the conspiracy, accomplice,
RICO and money laundering attributes that to apply to all Section 1512 offenses.
Obstructing Federal Courts (18 U.S.C. 1503): The Omnibus Provision.

Unlike Section 1512, Section 1503 does not to apply to the obstruction of Congressional
or administrative proceedings. It condemns obstructing pending judicial proceedings. For
conviction, the government must prove beyond a reasonable doubt: (1) that there was a
pending judicial proceeding, (2) that the defendant knew this proceeding was pending,
and (3) that the defendant then corruptly endeavored to influence, obstruct, or impede the
due administration of justice. Offenders are punished according to the nature of
obstruction: murder and manslaughter are punished as those crimes are punished when
the crime until another time or to substitute another victim or another but similar objective. If
the defendant raises the affirmative defense at trial, the defendant has the burden of proving the
defense by a preponderance of the evidence. (c) It is not a defense to a prosecution under this
section that the person solicited could not be convicted of the crime because he lacked the state
of mind required for its commission, because he was incompetent or irresponsible, or because
he is immune from prosecution or is not subject to prosecution.”).
CRS-4
committed in violation of sections 1111 and 1112; attempted murder, attempted

manslaughter, or any violation involving a juror called to hear a case relating to a class
A or B felony is punishable by imprisonment for not more than 20 years; and all other
offenses by imprisonment for not more than 10 years. Conspiracy to violate Section 1503
can only be prosecuted under the general conspiracy statute. Section 1503 offenses are
RICO predicate offenses and consequently money laundering predicate offenses. Those
who aid and abet a Section 1503 offense are liable as principals and are punishable as if
they committed the offense themselves. An individual who knows that another has
committed a Section 1503 offense and nevertheless assists the offender in order to hinder
his capture, trial or punishment is in turn punishable as an accessory after the fact. And
an individual who affirmatively conceals the commission of a Section 1503 by another
is guilty of misprision.
Retaliating Against Federal Witnesses (18 U.S.C. 1513). Section 1513

prohibits witness or informant retaliation in the form of killing, attempting to kill,
inflicting or threatening to inflict bodily injury, damaging or threatening to damage
property, and conspiracies to do so. It also prohibits economic retaliation against federal
witnesses, but only witnesses in court proceedings and only on criminal cases. Its penalty
structure is comparable to that of Section 1503. Section 1513 offenses are RICO
predicate offenses and money laundering predicate offenses, and the provisions for
conspirators and accomplices apply as well.
Obstructing Congressional or Administrative Proceedings (18 U.S.C.

1505). Section 1505 outlaws obstructing Congressional or federal administrative
proceedings, a crime punishable by imprisonment not more than 5 years (not more than
8 years if the offense involves domestic or international terrorism). The crime has three
essential elements. First, there must be a proceeding pending before a department or
agency of the United States. Second, the defendant must be aware of the pending
proceeding. Third, the defendant must have intentionally endeavored corruptly to
influence, obstruct or impede the pending proceeding. Section 1505 offenses are not
RICO or money laundering predicate offenses. Conspiracy to obstruct administrative or
Congressional proceedings may be prosecuted under 18 U.S.C. 371, and the general
aiding and abetting, accessory after the fact, and misprision statutes are likely to apply
with equal force in the case of obstruction of an administrative or Congressional
proceeding.
Conspiracy to Obstruct to Defraud (18 U.S.C. 371). Section 371 contains

both a general conspiracy prohibition and a specific obstruction conspiracy prohibition
in the form of a conspiracy to defraud proscription. The elements of conspiracy to
defraud the United States are: (1) an agreement of two more individuals; (2) to defraud
the United States; and (3) an overt act by one of the conspirators in furtherance of the
scheme. The fraud covered by the statute reaches any conspiracy for the purpose of
impairing, obstructing or defeating the lawful functions of any department of Government
by deceit, craft or trickery, or at least by means that are dishonest. The scheme may be
designed to deprive the United States of money or property, but it need not be so; a plot
calculated to frustrate the functions of a governmental entity will suffice.
Criminal Contempt of Court. The final and oldest of the general obstruction
provisions is contempt. Contemporary federal contempt derives from statute, rule and
inherent or auxiliary authority. Criminal contempt comes in two forms, direct and
CRS-5
indirect. Direct contempt involves misconduct in the presence of the court and is
punished to ensure the decorum of the court and the dignity of the bench. Indirect
contempt consists of those obstructions committed outside the presence of the court.
Direct contempt may be summarily punished; indirect contempt may not. A court may
punish as criminal contempt disobedience or resistance to its lawful writ, process, order,
rule, decree, or command. Criminal contempt may be punished by imprisonment or by a
fine or both. The Sixth Amendment right to a jury trial limits the term of imprisonment
which a court may summarily impose to a maximum of six months.
Contempt of Congress. Contempt of Congress is punishable by statute and

under the inherent powers of Congress. Congress has not exercised its inherent contempt
power for some time. The statutory contempt of Congress provision, 2 U.S.C. 192,
outlaws the failure to obey a Congressional subpoena or the refusal to answer questioning
at a Congressional hearing. The offense is punishable by imprisonment for not more than
one year and a fine of up to $100,000.
Obstruction of Justice by Violence or Threat. Several other federal statutes

outlaw use of threats or violence to obstruct federal government activities. One, 18
U.S.C. 115, prohibits acts of violence against judges, jurors, officials, former officials,
and their families in order to impede or retaliate for the performance of their duties. It
makes assault, kidnaping, murder, and attempts and conspiracies to commit such offenses
in violation of the section subject to the penalties imposed for those crimes elsewhere in
the Code. It makes threats to commit an assault punishable by imprisonment for not more
than 6 years and threats to commit any of the other offenses under the section punishable
by imprisonment for not more than 10 years. Another, 18 U.S.C. 1114, protects federal
officers and employees as well as those assisting them, from murder, manslaughter, and
attempted murder and manslaughter committed during or account of the performance of
their duties. The section’s coverage extends to government witnesses. Other provisions
protect federal officers and employees from kidnaping and assault committed during or
on account of the performance of their duties, but their coverage of those assisting them
is less clear. Beyond these general prohibitions, federal law proscribes the murder,
kidnaping, or assault of Members of Congress, Supreme Court Justices, or Cabinet
Secretaries; and a number of statutes outlaw assaults on federal officers and employees
responsible for the enforcement of particular federal statutes and programs.
Obstruction of Justice by Bribery: 18 U.S.C. 201. Section 201 outlaws

offering or soliciting bribes or illegal gratuities in connection with judicial, congressional
and administrative proceedings. Bribery is a quid pro quo offense. It condemns
invitations and solicitations to corruption. The penalty structure for bribery is fairly
distinctive: imprisonment for not more than 15 years; a fine of the greater of three times
the amount of the bribe or $250,000; and disqualification from holding any federal
position of honor or trust thereafter.
Mail and Wire Fraud. The mail fraud and wire fraud statutes have been written
and constructed with such sweep that they cover among other things, obstruction of
government activities by corruption. They reach any scheme to obstruct the lawful
functioning in the judicial, legislative or executive branch of government that involves (1)
the deprivation of money, property or honest services, and (2) the use of the mail or wire
communications as an integral part of scheme. Congress expanded the scope of the mail
and wire fraud statutes with the passage of 18 U.S.C. 1346 which defines the “scheme to
CRS-6
defraud” element in the fraud statutes to include a scheme “to deprive another of the
intangible right of honest services.” Some courts have said that honest services fraud in
the public sector typically occurs in either of two situations: (1) bribery, where a public
official was paid for a particular decision or action; or (2) failure to disclose a conflict of
interest resulting in personal gain. Prosecutors may favor a mail or wire fraud charge over
or in addition to bribery charge if for no the reason than that under both fraud sections
offenders face imprisonment for not more than 20 years rather than the 15-year maximum
found in Section 201.
Obstruction by Extortion Under Color of Official Right (18 U.S.C. 1951).

Extortion under color of official right occurs when a public official receives a payment
to which he is not entitled, knowing it is being provided in exchange for the performance
of an official act. Liability may be incurred by public officers and employees, those in the
process of becoming public officers or employees, those who hold themselves out to be
public officers or employees, their coconspirators, or those who aid and abet public
officers or employees in extortion under color or official right. The payment need not
have been solicited, nor need the official act for which it is exchanged have been
committed. The prosecution must establish that the extortion obstructed, delayed, or
affected interstate or foreign commerce, but the impact need not have actually occurred
nor been even potentially severe. Violations are punishable by imprisonment for not more
than 20 years.
Obstruction of Justice by Destruction of Evidence. Other than subsection

1512(c), there are three federal statutes which expressly outlaw the destruction of
evidence in order to obstruct justice: 18 U.S.C. 1519 prohibits destruction of evidence in
connection with federal investigation or bankruptcy proceedings, 18 U.S.C. 1520
prohibits destruction of corporate audit records, and 18 U.S.C. 2232(a) prohibits the
destruction of property to prevent the government from searching or seizing it.
Obstruction of Justice by Deception

In addition to the obstruction of justice provisions of 18 U.S.C. 1503 and 1512, there
are four other general statutes that outlaw obstructing the government’s business by
deception. Three involve perjury: 18 U.S.C. 1623 that outlaws false swearing before
federal courts and grand juries; 18 U.S.C. 1621 the older and more general prohibition
that proscribes false swearing in federal official matters (judicial, legislative, or
administrative); and 18 U.S.C. 1622 that condemns subornation, that is, inducing another
to commit perjury. The fourth, 18 U.S.C. 1001, proscribes material false statements
concerning any matter within the jurisdiction of a federal executive branch agency, and
to a somewhat more limited extent with the jurisdiction of the federal courts or a
Congressional entity.
Evaluation and Inspections Division
REVIEW PAGES 23-28 & Appendix I
Review of the United

States Marshals Service
Disciplinary Process
Report Number I-2001-11
September 2001
EXECUTIVE DIGEST
The Department of Justice (DOJ) Office of the Inspector General (OIG),

Evaluation and Inspections Division, evaluated the discipline process in the United
States Marshals Service (USMS) to determine whether discipline actions taken in
response to substantiated misconduct allegations were consistent, timely, and in
accordance with USMS policy.
The USMS discipline process consists of two phases--the investigation of

misconduct allegations and the adjudication of substantiated allegations. Depending on
the severity of an allegation, the OIG, the USMS Office of Internal Affairs (OIA), or a
USMS district or division office conducts the investigation into the misconduct. If the
allegation is substantiated, the investigation report is forwarded through the OIA to the
USMS Human Resources Division (HRD) Employee Relations Team (ERT) for
adjudication. The adjudication phase involves a review of the case by designated
USMS management officials to determine the discipline action, which can range from an
oral admonishment to removal.
From a universe of 560 misconduct cases adjudicated between FY 1998 and FY

2000, we selected 50 cases to review for consistency and timeliness. We found 25
cases where the consistency of the discipline or the degree of discipline imposed raised
serious concerns, and the reasons for the final discipline decisions were not adequately
documented. In 8 of the 50 cases, we also found no documented evidence in the
employees’ official personnel folders that discipline actions had been enforced.
In 14 of the 50 cases, we found significant periods of unexplained elapsed time

that appeared to prolong case adjudication. The overall adjudication timeline for these
14 cases ranged from 89 days to 330 days, with unexplained elapsed time periods
ranging from 61 days to 217 days. Because of incomplete or inaccurate information in
case files and the automated database, ERT personnel could not reconstruct case
events to account for these time periods.
Timeliness of case processing was also a problem in the Alternative Dispute

Resolution (ADR) Program. We found that 66 percent of the misconduct cases in the
ADR Program had exceeded the Program’s established time limit of 60 days. The
backlog of cases may be attributed in part to the types of cases accepted by the ADR
Program and limited use of USMS employees trained as ADR facilitators. In addition,
the ADR Program did not effectively use its automated database to track the status of
cases.
U.S. Department of Justice i

We also found a need for improved coordination between the various USMS
entities involved in the discipline process. During our interviews, officials from these
entities expressed concern or uncertainty about specific discipline process
responsibilities, procedures, timelines, and work quality. Some of the general concerns
mentioned by these officials involved the need for (1) cross-training to better understand
the information requirements of the various entities to process misconduct cases, (2)
improving or centralizing oversight of the entire discipline process, (3) clearly defining
responsibilities concerning discipline process duties, (4) improving the timeliness in the
discipline process, (5) improving the exchange of information among the entities, and
(6) improving the OIA’s response for follow-up investigative requests.
We found that the HRD and the ERT had not fully developed and implemented
performance standards for the adjudication of misconduct cases. The USMS
Performance Management Program identifies performance measures related to the
OIA’s investigative phase of the discipline process. However, goals and measures for
the ERT’s adjudication phase of the discipline process are not included. As a result,
identifying and evaluating strengths and weaknesses in the adjudication phase of the
discipline process cannot be accomplished.
Finally, the USMS is not reporting all allegations of misconduct to the OIG as
required by OIG policy. Prior to forwarding an allegation to the OIG, the OIA performs a
“preliminary investigation” of the allegation. If the OIA determines that the alleged
misconduct did not violate USMS policy or that enough information is not provided to
warrant opening a formal investigation, the OIA considers the allegation “closed.” In this
instance, the allegation is not forwarded to the OIG for review. The OIA’s FY 1998, FY
1999, and FY 2000 annual statistics show that 70, 93, and 76 misconduct allegations
were classified as preliminary investigations and closed. These 239 misconduct
allegations were not reported to the OIG. The allegations included firearms violations,
discrimination complaints, fraud, and hostile work environment misconduct that require
immediate or 48-hour reporting by the USMS to the OIG according to OIG policy. In
addition, allegations for 16 of the 50 cases we reviewed were opened by the USMS as
full investigations but were not reported to the OIG.
We made 12 recommendations to help the USMS improve its discipline process:
• improve adherence to federal documentation standards for misconduct cases

(Recommendation 1);
• ensure that formal discipline actions are enforced and properly documented in
the official personnel folders (Recommendation 2);
• require the ADR Program to meet program time limits, improve the use of
available USMS facilitators; accept only cases appropriate for ADR, and
improve case tracking (Recommendations 4, 5, 6, and 7);
U.S. Department of Justice ii

• require development and implementation of data collection, entry, and review
standards for ERT’s automated database (Recommendation 8);
• reactivate meetings with representatives from the appropriate entities to

improve coordination within the discipline process (Recommendation 9);
• establish performance standards, including timelines, to improve the

adjudication and oversight of misconduct cases (Recommendations 3 and
10);
• report all misconduct allegations to the OIA and then to the OIG
(Recommendations 11 and 12).
U.S. Department of Justice iii

TABLE OF CONTENTS
INTRODUCTION .....................................................................................1
Scope and Methodology..........................................................................2
RESULTS OF THE REVIEW ..................................................................5
Discipline Decisions not Adequately Documented ..................................6

Recommendations.................................................................................15
Timely Adjudication not Always Accomplished......................................15

Recommendation ..................................................................................18
ADR Program Does not Effectively Manage Caseload .........................18

Inconsistent Data Entry Affects Reliability .............................................22

Recommendation ..................................................................................22
Effective Coordination Efforts are Needed ............................................22

Recommendation ..................................................................................23
Performance Standards are Needed.....................................................23

Recommendation ..................................................................................24
Allegations are not Reported to the OIG as Required ...........................24

APPENDIX 1 Policies and Procedures .............................................29

APPENDIX 2 Roles and Responsibilities ..........................................33
APPENDIX 3 Case File Characteristics and Offenses......................38
APPENDIX 4 USMS Response.........................................................40
APPENDIX 5 OIG Response.............................................................41

INTRODUCTION
After an allegation of misconduct is brought to the attention of management,

USMS policy dictates that it be reported to the Office of Internal Affairs (OIA).1 After
receipt, the OIA is required to forward these allegations to the OIG for review.
Depending on the severity of the allegation, the OIG makes a determination whether to
investigate the allegation or refer it back to the OIA for appropriate action. Appendix 1
summarizes the policies and procedures governing the USMS discipline process.
The USMS discipline process is separated into two distinct phases: investigation
and adjudication. The OIA, under the Executive Services Division (ESD), controls the
investigation phase of the process. The Employee Relations Team (ERT), under the
Human Resources Division (HRD), controls the adjudication phase of the process.
In the investigation phase, if the OIG does not perform the investigation, the OIG
refers the allegation back to the OIA for appropriate handling. The OIA reviews the
alleged misconduct and closes the case if it determines that no investigation is required.
If the OIA determines that an investigation is required, the OIA either conducts the
investigation or refers the case back to the district or division where the employee (the
subject of the allegation) works for investigation. The OIA has established a
performance standard of 100 days to complete an investigation.2 If the allegation is
substantiated by the investigation, the OIA forwards the completed investigative case
file to the ERT to begin the adjudication phase of the discipline process.
After the ERT receives the investigative case file from the OIA, the ERT reviews
the file and distributes the misconduct case for adjudication according to the USMS
Discipline Delegation Policy (see Appendix 1). The ERT sends the cases it determines
may warrant more than 14 days suspension as a potential discipline action to the USMS
Discipline Panel to review and propose discipline actions. The ERT coordinates
discipline proposals and decisions exceeding 14 days suspension with the USMS Office
of General Counsel (OGC). The ERT sends the cases it determines may warrant less
1
Examples of misconduct allegations are the unauthorized use of a government-owned vehicle,
improper discharge of a weapon, failure to follow USMS policy, or associating with an individual involved
in criminal activities.
2
In FY 2000, the OIA reported to the USMS Director that its total of 150 misconduct
investigations conducted were completed in an average of 42 days.
U.S. Department of Justice 1

than 14 days suspension as a potential discipline action to the appropriate officials in
the district or division where the employee works to propose and decide discipline
actions.3
The ERT is required to review and approve all discipline proposals and decisions
for consistency and compliance with applicable USMS policies prior to issuance. The
ERT is responsible for maintaining the official misconduct case files and related
documentation in accordance with federal guidelines, which require copies of all
proposal and final decisions, employees responses, and other supporting materials to
be maintained. In addition, the ERT enters specific misconduct case file information in
its automated database.4 Throughout the adjudication phase, the ERT is available to
provide advice and assistance to proposing and deciding officials or subjects of the
allegation. (See Appendix 2 for details on the roles and responsibilities of the entities in
the discipline process.)
Scope and Methodology
We reviewed the discipline process in the USMS to evaluate whether discipline

actions taken in response to substantiated misconduct allegations were consistent,
timely, and in accordance with USMS policy. Our review focused on the adjudication
phase of the discipline process. We performed our fieldwork for the review from
January 2001 through May 2001. We examined DOJ and USMS policies, procedures,
and any other internal documents that pertained to the discipline process (see Appendix
1). We reviewed the official misconduct case files and the information in the automated
database maintained by the ERT.
We interviewed the following officials and obtained data about the discipline
process:
• the Acting Assistant Director of the ESD, who is responsible for oversight of
the OIA,
• the Chief, Human Resources Service, within the HRD, who is responsible for
oversight of the ERT,
3
Not every misconduct case goes through each stage of the formal adjudication phase. For
example, a letter of closure can be issued at different stages of case adjudication if a reviewing official
determines the allegation to be unsubstantiated. Eleven of the 50 case files in our sample resulted in the
issuance of such letters.
4
The PeopleSoft Human Resources Management System is a commercial-off-the-shelf
client/server software system designed to automate and streamline the existing USMS human resources
processes. The ERT uses this system to track discipline cases within the USMS. According to ERT staff,
PeopleSoft became fully operational around May 1999.

• officials in the OGC,
• the Chief, OIA, and select staff responsible for conducting and processing
misconduct investigations,
• the Team Leader and staff in the ERT responsible for controlling the
adjudication of misconduct cases,
• three members of the Discipline Panel who served as proposing officials from
1998 to 2000,
• five Chief Deputy United States Marshals who currently serve as proposing
officials in their respective districts,
• the Ombuds and staff for the USMS’s Alternative Dispute Resolution (ADR)
Program, and
• officials in the OIG Investigations Division responsible for the review of USMS
misconduct allegations.
We selected a sample of 50 case files using information in the ERT’s automated

database.5 These 50 cases were substantiated misconduct allegations that had been
forwarded to the ERT for adjudication processing. This case file review focused solely
on the adjudication phase of the discipline process. We selected the sample cases
based on the following criteria:
• any disparity between the proposal and decision action codes as displayed in
the automated database,
• misconduct offense categories with higher frequencies of occurrence (see

Table 1 on page 7),
• misconduct offense categories (though fewer in number) that represented

more serious types of misconduct (see Table 1 on page 7),
• case adjudication occurred during FY 1998 through FY 2000.
5
Two of the case files selected involved the same employee who was disciplined on separate
occasions for the same offense.

Our sample of 50 case files comprised 17 cases out of 214 cases adjudicated in
FY 1998, 20 cases out of 214 cases adjudicated in FY 1999, and 13 cases out of 132
cases adjudicated in FY 2000. Our sample represents a broad range of misconduct
offense categories. (See Appendix 3.)
We reviewed the misconduct case files to determine whether documentation

complied with the minimum standards established in the Code of Federal Regulations
(CFR) and whether the documented reasons explained the discipline actions
recommended by proposing and deciding officials. We recorded case characteristics,
milestones, and time periods. We also reviewed the official personnel folders to
determine whether documentation was posted that showed the USMS had enforced the
discipline decisions.

RESULTS OF THE REVIEW
Our review of 50 USMS misconduct case files revealed 25 cases where the
consistency of the discipline or the degree of discipline imposed raised serious
concerns. Because the USMS did not always follow federal documentation standards
for the misconduct case files, the reasoning used in making penalty decisions was not
fully documented or explained. We also found misconduct cases with unexplainable
time periods that prolonged the adjudication of cases, and the USMS does not have
policy guidance that addresses timeframes for each stage of the adjudication phase of
the discipline process.
In addition to our findings on the consistency and timeliness of case adjudication,

we also identified the following issues that negatively affect the discipline process:
• Discipline actions are not always documented in the employees’ official

personnel folders.
• The ADR Program is not effectively managing its caseload.
• Data collection, entry, and review standards have not been established for the
ERT’s automated database for cases.
• USMS entities in the discipline process are not effectively coordinating their
efforts.
• Performance standards have not been fully established and implemented for
adjudicating misconduct cases.
• Misconduct allegations are not always reported to the OIA or the OIG as
required.
Over the past several years, the USMS has periodically reviewed its discipline
process to identify areas that needed improvement. As a result of these reviews, the
USMS implemented the following changes:
• a revised Discipline Delegation Policy (USMS Policy Notice 94-002A) that

established the Discipline Panel and increased the discipline authority of
districts and divisions for certain misconduct offenses was implemented in
January 1995;

• the DOJ Table of Offenses and Penalties was incorporated into the 1996
International Council of United States Marshals Service Locals Collective
Bargaining Master Agreement;
• the ADR program, an informal alternative to the formal adjudication phase of

the discipline process, became operational in October 1998; and
• an automated database capable of creating a uniform recordkeeping system

to serve as an audit trail of discipline actions and decisions became
operational in May 1999.
Although these changes represented efforts to enhance the integrity and

efficiency of the USMS discipline process, our review shows additional oversight of the
implementation of these program changes is needed.
Discipline Decisions are not Adequately Documented

Table 1, on the following page, demonstrates the varied range of penalty
decisions for our sample of 50 misconduct cases. The table shows that in 36 of the 50
discipline cases (72 percent) either a formal or an informal penalty was imposed:6
• In 27 of the 36 discipline cases (75 percent), formal penalty decisions were

issued to the employee ranging from a minimum of a Letter of Reprimand to a
maximum of a demotion in grade, and
• In 9 of the 36 discipline cases (25 percent), informal penalty decisions

involving a verbal or oral reprimand were issued.
For the remaining 14 of the 50 cases:
• Eleven (11) cases were adjudicated with the issuance of a Letter of Closure
after the ERT or the deciding official determined that the misconduct
allegation(s) was not substantiated, and
• Three (3) cases did not complete the adjudication phase because the
employees retired in lieu of a penalty decision (including two proposed
removals).
6
Discipline actions may be informal or formal. Informal discipline actions, such as oral
admonishments and verbal warnings, are not made a matter of record in the employees’ official personnel
folders. Formal discipline actions, such as suspensions, reductions in grade or pay, and removals, are
required to be documented in the official personnel folders.

Table 1: Penalty Range of USMS Discipline Actions
Substantiated
More Than 14
Closure - Not
Reprimand
Reprimand
Instruction
14 Days or
Demotion
Removal
Caution/
Letter of
Letter of
Letter of
Verbal
Other
Total
Days
Less
Offense Category
1. Unauthorized or a
1 4 2 1 1 9
Improper Use of a GOV
2. Unauthorized Use of
1 3 2 6
Govt. Travel Charge Card
3. Violations of Standards
1 1 1 2 5
of Conduct
4. Disorderly Conduct 1 1 2 1 5
5. Discharge of a Weapon b
1 1 1 1 1 5
With No Apparent Threat
6. Failure to Report 1 2 3
7. Failure to Honor Just
Debts (Government Credit 1 1 2
Card)
8. Improper Restraint of a
1 1 2
Prisoner
9. Improper Seating of a
2 2
Prisoner
10. Disrespectful Conduct 2 2
11. Failure to Follow USMS
1 1
Policy
12. Misuse of Office 1 1
13. Conversion of
Government Funds to 1 1
Personal Use
14. Assault on a Prisoner 1 1
15. Falsification,
Misstatement of 1 1
Employment
a
16. Discrimination 1 1
17. Disgraceful Conduct 1 1
18. Association with
Individual Known to be 1 1
Involved in Criminal Activity
19. Failure to Disclose all
Assets on Annual
1 1
Executive Financial
Disclosure Form
Total 2 1 8 9 9 7 2 11 1 50
Source: USMS
a
These employees elected to retire in lieu of proceeding with the proposed removal action. The USMS closed the disciplinary
cases following the retirement actions.
b
Although the charge was substantiated, the employee elected to retire before the USMS proposed a discipline penalty action.
The USMS Table of Offenses suggests a penalty range of Letter of Reprimand to Removal for this offense.
Note: Fifteen of the fifty misconduct cases comprised more than one offense category. In five instances, separate misconduct
cases were combined and resulted in one adjudication action for the employee.

While most cases resulted in a formal or an informal penalty, we found that the
USMS case file documentation did not always support final penalty decisions.
According to 5 CFR, section 752.406, “the agency shall maintain copies of the items
specified in Title 5 United States Code (U.S.C.), section 7513(e) and shall furnish them
upon request as required by that subsection.” Title 5 describes these items as “Copies
of the notice of proposed action, the answer of the employee when written, and a
summary thereof when made orally, the notice of decision and reasons therefore, and
any order effecting an action covered by this subchapter, together with any supporting
material, shall be maintained by the agency….”
In our sample of 50 misconduct case files, we found cases that did not meet the
minimum CFR documentation standards. The documentation in 25 cases was
incomplete and did not explain the reasons used for penalty decisions in the following
instances:7
• the penalty decisions were mitigated below the proposed penalty

(19 cases);
• in cases where multiple offenses and supporting evidence were documented

in proposal letters, the deciding official determined that some offenses were
not sustained, but did not document the reasons used in supporting the
decision (6 cases);
• in cases where multiple offenses were sustained, the final penalty imposed
was lower than what would be required if each offense had been adjudicated
separately (6 cases); and
• the final penalty decision fell below the range of penalties suggested in the
USMS Table of Offenses (13 cases).
During our review of the 50 case files, we found the proposal letters were present
and adequately documented the reasoning used in proposing any discipline action.
However, we rarely found any documents detailing the employee’s response in the case
files. In the absence of complete documentation, the reasoning applied in making final
case decisions was not always apparent. Therefore, the differing levels of discipline
imposed for similar offenses appeared as inconsistent or too lenient.
The following synopses detail case actions and penalty decisions imposed by the
USMS that involve the two most prevalent offense categories found in our sample--the
Unauthorized Use of a Government Owned Vehicle (GOV) and the Misuse of a
Government-Issued Travel Card. These case synopses demonstrate the complexity of
misconduct cases and the challenges associated with case adjudication. Most notably,
7
Twelve of the 25 cases had more than one instance of inadequate documentation.

these cases raise serious consistency concerns as a result of inadequate
documentation of the decision reasoning.
Misconduct Cases Involving Unauthorized Use or Misuse of a GOV
Government officials are allowed limited flexibility in proposing and deciding

discipline action relating to the misuse of government-owned vehicles. Title 31 U.S.C.,
section 1349(b), provides in part that:
An officer or employee who willfully uses or authorizes the

use of a passenger motor vehicle . . . owned or leased by the
United States Government . . . shall be suspended without
pay by the head of the agency. The officer or employee shall
be suspended for at least one month, and when
circumstances warrant, for a longer period or summarily
removed from office.
The USMS Policy Directive 99-11, “Use of Official Government Vehicles,”

February 12, 1999, allows for a broader interpretation of the statutory penalty range by
allowing penalties ranging from a Letter of Reprimand to a removal for offenses
determined not to rise to the level of the statutory “willful” misuse standard.
As shown in Table 1 on page 7, our sample included a total of nine cases that
involved the Unauthorized or Improper Use of Government-Owned Vehicles (GOV). In
five of these cases (described below), the case files did not document the reasoning
used to support the penalty decisions imposed.8
1. A charge of Unauthorized Use of a GOV was combined with a charge of

Conduct Unbecoming (involving public intoxication). The Discipline Panel
proposed a 45-day suspension. The deciding official, after review, mitigated
the proposal to a 14-day suspension. The reasoning provided in the decision
letter appeared to contradict facts of the misconduct as detailed in the
proposal letter. For instance, the deciding official concluded that the
employee had violated the USMS policy. However, this conclusion did not
state the reason the violation did not meet the “willful” [Title 31 U.S.C., section
1349(b)] misuse of the GOV criteria as clearly described in the proposal letter.
The deciding official also concluded that the employee was not intoxicated
when operating the GOV, but the official did not provide reasoning for
differing with the facts previously detailed in the proposal letter. For instance,
the proposal letter identified statements of the local police department
indicating that the employee was intoxicated, did operate the vehicle, had
behaved in a disrespectful and unprofessional manner, and that an arrest was
8
The OIA conducted the investigation for all five cases.

imminent for public intoxication. The local police department ultimately
exercised its discretion by not arresting the employee following an apology
and statements of remorse.
2. A charge of Unauthorized Use of a GOV was combined with a charge of Use

of Offensive Language. The Discipline Panel proposed a penalty of 31 days.
The proposed penalty was mitigated to a 1-day suspension following a
settlement agreement reached between the employee and the USMS. The
settlement agreement only addressed the Use of Offensive Language charge.
The case file lacked documentation as to why the Unauthorized Use of a
GOV offense identified in the proposal letter was disregarded.
3. Two misconduct cases were combined into a single adjudication action. A

charge of Unauthorized Use of a GOV was combined with the additional
charges of (1) Unauthorized Use of a Government-Rented Vehicle, (2) Failure
to Provide Accurate Information to a Management Official,
(3) Unauthorized Use of the National Crime Information Center (NCIC), and
(4) Attempting to Interfere with an Official Investigation. The Discipline Panel
sustained all the charges and proposed the employee be removed from the
USMS. The deciding official only sustained the charges of Unauthorized Use
of a GOV and Unauthorized Use of the NCIC. The decision letter stated that
the other three charges were not sustained by a preponderance of the
evidence. As a result, the proposed removal was mitigated to a 30-day
suspension -- the mandated penalty for “willful” Unauthorized Use of a GOV.
However, the decision letter did not address any discipline for the second
sustained offense of Unauthorized Use of the NCIC.
4. A charge of Unauthorized Use of a GOV was mitigated from a 30-day

suspension proposed by the Discipline Panel to a Letter of Reprimand. The
decision letter stated that in the opinion of the deciding official, it was unclear
whether the employee received permission from a supervisor to use the GOV
for personal use. This opinion contradicted the evidence and documented
statements of the employee and the employee’s supervisors presented in the
proposal letter that supported “willful” Unauthorized Use of a GOV. The
deciding official did not document the reasoning used and the reason for
mitigating the penalty from the statutory 30-day suspension to a Letter of
Reprimand. The decision letter did not explain why the evidence was
unclear. The employee response was not in the case file. Therefore, we
could not accurately determine how the process ended with a drastic
mitigation of the proposed penalty.
5. A charge of Unauthorized Use of a GOV was combined with a charge of

Failure to Report a Motor Vehicle Accident in a GOV. The Discipline Panel
proposed a suspension of 30 days. The deciding official sustained both

charges and imposed a penalty of 30 days, a suspension equal to the
mandated penalty for “willful” Unauthorized Use of a GOV. However, the
decision letter did not address any discipline for the second sustained offense
of Failure to Report a Motor Vehicle Accident in a GOV.
In cases 1 and 4, the decision letter or the official case files did not document the
reasoning used concerning a significant mitigation of a proposed penalty. In cases 2, 3,
and 5, the decision letter or the official case file did not document the reasoning behind
the apparent disregard of a substantiated offense.
Misconduct Cases Involving the Improper Use of a Government-Issued Travel

Credit Card
USMS policy states that the government-issued travel charge card is for official
travel only and that cash advances can only be obtained when an employee is
authorized for official travel.
As shown in Table 1 on page 7, our sample included a total of eight cases

related to the Unauthorized Use of an Official Government-Issued Travel Card or the
related Failure to Honor Just Debts (Travel Card). In the seven case synopses, we
describe how the case files lacked adequate documentation of the reasoning used to
support the final penalty decisions imposed.9
1. An employee was charged with Misuse of Government Property in relation to

over $45,500 in unauthorized purchases and cash advances accumulated
over a 15-month period using a government-issued travel card. The
Discipline Panel proposed a 30-day suspension. This 30-day suspension
was mitigated to a 14-day suspension through a settlement agreement.
Although the penalty imposed was within the parameters of the Table of
Offenses, neither the case file nor the settlement agreement contained
documentation outlining the reasoning applied in the penalty mitigation.
2. An employee was charged with Unauthorized Use of a Government-Issued

Travel Card after obtaining over $5,100 in unauthorized ATM cash advances
during an 8-month period. An additional charge of Failure to Pay Just Debts
in a Timely Manner was added to the first charge. This second charge was
related to a previous outstanding balance of approximately $4,500 that
existed on the account at the time of the investigation (unpaid balances
covering 10 months). The deciding official mitigated the proposed 2-day
suspension to a Letter of Reprimand. The decision letter documented the
deciding official’s reasoning for mitigating the penalty as the employee’s
sincere remorse and assurance that the debt would be paid by a specified
9
The OIA conducted the investigations for all seven cases.

date. However, the case file did not contain documents detailing the
employee’s response.
3. An employee was charged with Misuse of a Government-Issued Travel Card

as a result of two unauthorized cash withdrawals totaling approximately $404.
According to ERT’s automated database the proposed penalty of a 2-day
suspension was mitigated by the deciding official to a Letter of Reprimand.
Although the Letter of Reprimand decision is the minimum allowable penalty
suggested in the Table of Offenses, the case file did not contain the decision
letter that may have documented the reasons for mitigating the proposed
discipline.
4. An employee was charged with Failure to Honor Just Debts in a Timely

Manner for failure to make payments for a $1,468 travel debt accrued on a
government-issued travel card, though the employee had been reimbursed
for the travel expenses. A Letter of Reprimand was proposed and imposed
by the deciding official. We found a notation in the ERT’s automated
database that stated, “District reluctant to take more severe discipline action
against employee, regardless of his admission that he lied to his superiors.”
In addition, charges identified in the OIA investigative report confirming that
the employee lied during the investigation were not acted upon. Also, the
proposal letter characterized this misconduct case as a first offense.
However, previous offenses involving the Failure to Honor Just Debts in a
Timely Manner and Improper Use of a Government-Issued Credit Card had
been sustained a few months prior, and the employee had received a Letter
of Caution for those offenses.
5. An employee was charged with Misuse of a Government-Issued Travel Card

and Failure to Report an Accident in a Timely Manner. The employee had
failed to pay the credit card company over $2,200 in travel expenses already
reimbursed to the employee. The employee also misused the credit card to
accumulate over $3,100 in unauthorized personal purchases. In addition, the
employee failed to file a timely government motor vehicle accident report
related to a vehicle accident that resulted in a claim for over $17,000. The
deciding official mitigated the penalty for all these offenses from a proposed
1-day suspension to a Letter of Caution. As part of the reason for mitigating
the penalty the deciding official cited the employee’s response to the proposal
letter. However, the case file did not contain any documents detailing the
employee’s response.
6. An employee was charged with Absence Without Leave (AWOL), Misuse of a

Government-Issued Travel Card for 13 unauthorized cash advances totaling
approximately $1,000 during the AWOL period, and Loss of a Government-
Issued Weapon. The Discipline Panel initially proposed removal. The Panel

reduced the proposed penalty to a 14-day suspension following the OGC’s
review of the case. The OGC recommended against the removal based on
the employee’s past discipline history within the reckoning period,10 a strict
interpretation of the reckoning period for repeat offenses, the likelihood the
case would not withstand an MSPB appeal, and the incomplete investigation
of several case issues. The OGC recommended that the Panel consider
either a mitigation of the proposed penalty to remove the employee or return
the case to the OIA for an investigation of the unaddressed issues. The
Discipline Panel elected to propose a 14-day suspension. The 14-day
suspension was imposed through a settlement agreement.
7. Five months later, the same employee (case 6) was charged with
Unauthorized Use of a Government-Issued Travel Card involving three
unauthorized cash withdrawals for a total of $820. The Discipline Panel again
proposed removal. This second proposed removal was mitigated to a 60-day
suspension (with 30 days held in abeyance) as a result of another settlement
agreement. An additional unauthorized cash withdrawal of $600, which
occurred after the employee was interviewed by OIA for the $820 in
withdrawals, was not included in this case. In addition to these two separate
cases, the automated database maintained by the ERT lists a number of
disciplinary actions for this employee dating back to 1990. The case file does
not provide the reasons for the penalty mitigation decision, in particular, the
reason against the proposed removal given the considerable discipline record
of the employee.
In sum, for the misconduct cases involving Unauthorized Use of a Government-

Issued Travel Card, the USMS imposed a wide range of penalties, such as a Letter of
Caution (informal discipline), a Letter of Reprimand, and a 14-day suspension (formal
discipline). After reviewing the case files we conclude that:
• Cases 1 and 2 were adjudicated during the same time frame and involved
similar offenses, but each case received different levels of proposal and
decision penalties. Case 1 involved a proposed 30-day suspension, which
was mitigated to 14 days following a settlement agreement. Case 2 involved
only a proposed 2-day suspension, which was mitigated to a Letter of
Reprimand by the deciding official. Both case files lacked documentation of
the reasoning for the penalty mitigations.
• Cases 3 and 5 also demonstrate similar concerns of inadequate reasoning to

support the mitigation of penalties at the decision stage.
10
The reckoning period is used to determine whether an offense is a first, second, or third
offense. The reckoning period begins on the date management becomes aware of a first offense and
continues for the number of days contained in the reckoning period (e.g., 365 days or one year).
Recurrences of similar offenses within the reckoning period will result in increasingly severe penalties.

• Cases 4, 6, and 7 raise concerns with the thoroughness of the investigation
process or the complete and accurate identification of misconduct offenses.
• The discipline imposed in Cases 2, 4, 5, and 7 appears too lenient, given the
levels of offense and the lack of justification.
Official Personnel Folders Do Not Always Reflect Whether Discipline Has Been
Enforced
We reviewed the official personnel folders of employees for the cases where
formal discipline decisions had been imposed to determine whether the USMS enforced
the penalty decisions. Formal discipline actions, such as a suspension, a reduction-in-
grade, or a removal, affect an employee’s pay, position, or continued employment.
They must be documented on a Standard Form 50 (SF-50), Notification of Personnel
Action, and filed in the employee’s official personnel folder.11
As shown in Table 1 on page 7, 27 of the 50 misconduct cases in our sample

involved formal discipline decisions. However, we found that 8 of the 27 employees’
official personnel folders (30 percent) did not contain an SF-50 documenting that a
specific discipline action had been enforced.12 We contacted District management to
obtain either documentation or verbal verification that the discipline had been enforced
in these eight cases. We only were able to obtain verbal verification from District
management for four of the eight cases.
11
The SF-50 serves as the permanent record of personnel actions in an employee’s official
personnel folder. Informal discipline (e.g., oral admonishment, letter of caution) documentation is not
required to be in the official personnel folders.
12
All eight of these cases involved a 1-day suspension or more.

Recommendations
1. The USMS Director should instruct the HRD to improve adherence to the federal
standards for documenting misconduct case actions and consider implementing
additional case documentation standards as needed.
2. The USMS Director should instruct the HRD to ensure that all formal discipline
actions are enforced and properly documented in the official personnel folders.
The Timely Adjudication of Misconduct Cases is not Always

Accomplished
During the adjudication phase, a misconduct case is under the control of the
ERT, the proposing official(s), or the deciding official. The progression of a case can be
affected by factors such as employees’ requests for extensions or officials asking for
additional information. A case’s progression can also be affected by influences external
to the discipline process, such as when an employee requests ADR mediation, registers
an Equal Employment Opportunity (EEO) complaint, or files a grievance. Other factors
that can affect timely adjudication involve the severity of the allegation (proposed
discipline over 14 days) and the subsequent OGC review. If the proposed discipline
calls for a removal from the USMS, the Workforce Relations Group (WRG) in the DOJ’s
Justice Management Division (JMD) is also required to review the case (see Appendix
2).
Yet, based on the data in the case files and the ERT’s automated database, we
found 14 of the 50 misconduct cases (28 percent) in our sample had significant periods
of unexplained elapsed time that prolonged the adjudication. The ERT staff could not
account for the extended timelines in the 14 cases using the documentation in the case
files, the information recorded in the automated database, or personal memory.
Table 2 on the following page shows the time range for the adjudication of the 50
misconduct cases after ERT’s receipt of the investigation report from the OIA:

Table 2: Timeliness of Misconduct Case Adjudication
Elapsed Days From ERT’s Receipt of

Number of
Completed Investigation Report to
Cases (%)
Signed Decision Letter (50 Cases)
30 days or less 7 (14%)
31 days to 90 days 16 (32%)
91 days to 180 days 13 (26%)
181 days to 270 days 7 (14%)
271 days to 360 days 5 (10%)
361 days to 436 days 2 (4%)
Total 50 (100%)
Source: ERT official case files and automated database.
The overall adjudication timeline for the 50 cases varied from 1 to 436 days, while the
average adjudication time for the 50 cases was 140 days.
The following synopses describe 4 of the 14 cases with the longest periods of
unexplained elapsed time:
• Case 1 took 330 days from the time the ERT received the case to the time a
decision letter was signed. It took 177 days from the time ERT received the
case to the time a proposal letter (Letter of Reprimand) was completed and
issued to the employee. It took another 153 days before a decision letter was
issued.
case to the time a proposal letter (removal) was issued. It took another 153
days before a decision letter was issued. This was due, in part, to the
employee being granted a 49-day extension to respond to the proposal letter.
The OGC was involved in the proposal stage. We could not ascertain what, if
any, delay could be attributed to the OGC’s involvement. The ERT had
requested the OIA perform additional investigative work, but there was no
documentation in the case file supporting whether the work had been done.
case to the time a proposal letter (45-day suspension) was issued. It

took another 92 days before a decision letter was issued. This was due, in
part, to the employee being granted a 47-day extension to respond to the
proposal letter.
settlement agreement was signed. It took 109 days from the time ERT
received the case to the time a proposal letter (30-day suspension) was
issued. It took another 127 days for a settlement agreement to be signed.
Based on the data collected, it took 194 days from the time the OIA
completed its investigation to the time ERT records show the case being
received. When these unexplained 194 days are combined with the 236 days
for adjudication, 430 days elapsed before the case was settled.
Table 3 displays the other ten cases with lengthy, unexplained time periods:
Table 3: Unexplained Adjudication Time Periods
Number of
Days from Number of
ERT Receiving Number of Days to Total Days
Misconduct Offense
Case to the Days to Issue Issue in
Proposing Proposal Decision Adjudication
Official(s) Letter Letter Phase
1. Unauthorized Use of a
GOV a
39 57 154 250
2. Misuse of Office a 61 48 107 216

3. Unauthorized Use of a
GOV a b
4 180 79 263
4. Failure to Honor Just
Debts (Travel Card) a
7 122 104 233
5. Disorderly Conduct 70 31 76 177

6. Violations of Standards of
Conduct
27 145 113 285
7. Disgraceful Conduct a 19 84 156 259

8. Discharge of a Weapon
With No Apparent Threat a
61 47 57 165
9. Violations of Standards of
Conduct
1 74 14 89
10. Association w/ Individual
Known to be Involved in 3 37 169 209
Criminal Activity
Source: USMS misconduct case files
a
Case involved additional offenses.
b
Multiple cases combined into one adjudication.
Note: The emboldened numbers indicate the considerable unexplained time period for each case.

The DOJ has stressed the importance of processing discipline cases timely. A
DOJ report entitled, “Justice Performance Review, Adverse Actions in the Department
of Justice,” November 6, 1995, stated:
It is a long-held management principle that an adverse

action is most likely to have the desired effect when it is
carried out as close to the event as possible. Delaying
action in misconduct and performance cases not only
permits the inappropriate activity to continue for an extended
period of time, but can also result in other employees
forming an impression that the activities in question are not
viewed as serious or inappropriate by agency supervisors.
Also, DOJ Human Resources Order 1200.1 states, “…there is no limitation with
respect to when discipline must be effected after the commission of misconduct.
However, managers are encouraged to act in a timely manner.”
The ERT needs to ensure that misconduct cases are adjudicated in a timely
manner. The ERT should establish and implement timelines for the various stages
involved in the adjudication of a case and monitor a case’s progress against those
timelines.13 Currently, the ERT does not consistently exercise adequate management
oversight of all misconduct cases. This results in some misconduct cases exceeding
reasonable adjudication time periods.
Recommendation
3. The USMS Director should instruct the HRD to establish timelines for the
adjudication of misconduct cases and to use the timelines to monitor the status of each
case through the process.
The ADR Program Does not Manage its Caseload for the Timely
Processing of Misconduct Cases
The ADR Program is a non-traditional, non-adversarial, informal process that
uses a trained facilitator as a neutral third party to resolve workplace conflicts between
two or more parties. The USMS ADR Program is under the oversight of the HRD but is
separate from the ERT, which administers the adjudication phase of the formal
discipline process. Day-to-day management and cost accountability for the ADR
Program is the responsibility of the ADR Ombuds.
13
During our fieldwork the ERT was unaware of any timelines for adjudicating misconduct cases.
However, prior to issuance of this report, the HRD did provide the OIG with a document describing partial
timeline standards for adjudicating cases.

The USMS’s ADR Handbook (June 1999) states that 60 calendar days are
allowed for resolution of a dispute once an employee has initiated a request for ADR.
An additional 30 days is allowed if the employee and agency official(s) both agree to the
extension.
According to the ADR Ombuds, approximately 150 cases have been submitted to
ADR since the program’s inception; 41 of these were identified as misconduct cases.
The ADR Ombuds stated that 60 days is a reasonable goal for mediating ADR disputes.
Based on data provided by the ADR Ombuds, however, 27 (66 percent) of these 41
misconduct cases have exceeded the 60-day time period. 14
The ADR Ombuds provided data describing the status of the 41 misconduct
cases. Our analysis showed the following:
• Nineteen cases were open and awaiting action. For these 19 cases, the time
periods in the ADR Program ranged from 14 days to 487 days; the average
time was 234 days. Sixteen of these open cases had exceeded the 60 days
allowed.
15
• Fifteen cases had reached agreements and were closed. For these 15
cases, the time periods for closure ranged from 4 days to 342 days, and the
average time in the ADR Program was 96 days. Eight of these cases
exceeded the 60 days allowed.
• Five cases failed to reach an agreement and were returned to the ERT for
adjudication through the formal discipline process. Three of these five cases
had been in ADR for 39 days, 141 days, and 292 days, respectively. The
data was incomplete and did not provide the length of time the other two
cases had been in ADR.
14
Our review of the ADR data showed that 23 of these 27 cases had also exceeded the 90-day
limit. The data did not show any requests for, or granting of, 30-day extensions in these 23 cases. The
OIG team did not review individual ADR case files.
15
Discipline penalties, such as those established in the Table of Offenses, do not have to be
applied in the ADR Program. However, we compared the ADR outcomes versus the discipline penalties
proposed during formal case adjudication. For 6 of the 15 closed cases, the ADR agreement matched
the formally proposed discipline action. For 5 of the 15 closed cases, the ADR agreement was slightly
less than the proposed discipline action (such as proposed letters of reprimand mitigated to letters of
caution). For 2 of the 15 closed cases, the ADR agreement was considerably less than the proposed
discipline action. A 30-day suspension was reduced to 3 days and a 45-day suspension was reduced to
12 days. For the 2 remaining closed cases, the ADR Program did not provide data on the outcome of the
ADR agreements.

• Two cases were withdrawn. The data was incomplete and did not provide the
reason for the withdrawals or the length of time these two cases had been in
ADR.
As noted above, after 60 days (90 days if a 30-day extension had been granted)
in the ADR Program, misconduct cases should resume adjudication through the formal
discipline process. However, the ADR Ombuds does not monitor or return misconduct
cases that have exceeded these time periods to the ERT. The ERT does not monitor
the status of misconduct cases sent to the ADR Program or request the return when the
60-day deadline has expired. Consequently, cases have languished in ADR.
The ADR Ombuds cited inadequate staffing for the ADR Program that includes
both misconduct and performance cases. The ADR Ombuds estimated that 50 percent
of his time is directed to the ADR Program duties and the other 50 percent is directed to
Labor Relations Program duties. During our review, a full-time assistant was appointed
to the ADR Program. In addition to the assistant, the ADR Ombuds has approximately
20 trained USMS personnel located in various USMS districts to assist as facilitators in
mediating disputes.16 However, the Ombuds has not used the majority of these
facilitators to assist in the mediation of misconduct cases. The Ombuds stated that,
despite the training, he believes most of the USMS facilitators are not sufficiently
knowledgeable about personnel management laws and regulations to effectively resolve
personnel issues. Consequently, when seeking mediation assistance, the Ombuds
relies predominantly on contract personnel to serve as facilitators.17 Despite the
availability of these additional USMS and contract facilitators, the ADR Program’s 60-
day time limit is not being met.
During interviews with officials in the USMS OGC, they expressed concerns
about the timeliness of the ADR Program and the types of cases accepted into the ADR
Program. The OGC believed that misconduct cases that are appealable to the MSPB
should not be accepted into the ADR Program before the decision letter is issued. The
ADR Handbook states, “ADR is generally not an option in discipline actions appealable
to the MSPB.” Despite that policy, the ADR Ombuds told us that the MSPB was
incorporating ADR into its own process. Therefore, the Ombuds believed ADR at the
USMS-level for these appealable cases was also appropriate and had accepted cases
prior to a decision letter being issued.
16
USMS personnel were trained and certified as facilitators by undergoing a 3-day course
conducted by the Justice Center of Atlanta, a non-profit organization.
17
Contract personnel serving as facilitators are employees of the Federal Personnel
Management Institute and cost the USMS $85.00 an hour for labor and materials, which is paid by the
ADR Program. The ADR Program could not provide data on how many times contract facilitators were
used or the total cost to the USMS.

According to 5 CFR 1201.22(b)(1), the MSPB acknowledges ADR as a method
of resolving disputes prior to filing a formal appeal. The MSPB allows a time extension
for filing an appeal “Where an appellant and an agency mutually agree in writing to
attempt to resolve their dispute through an alternative dispute resolution process….”
While ADR may be an acceptable and less costly method of reaching agreeable
solutions in misconduct cases, we believe that the USMS, not the ADR Ombuds alone,
should decide what types of cases are eligible for ADR and at what stage the cases are
appropriate for ADR.
We did not assess the ADR Program’s database as part of our review. However,
we have concerns about the reliability of the data. These concerns are attributed to the
inconsistent quality of the data we received and the length of time taken by the ADR
Ombuds to compile the data. For example, the ADR Ombuds could provide us with
only a verbal estimate of the total ADR caseload, and we had to request several
versions of the ADR misconduct case data because of incompleteness or inaccuracies.
Entering consistent, accurate, and complete data in a timely manner is essential to
improving the case monitoring capabilities and the administration of the ADR Program.
Recommendations
4. The USMS Director should instruct the HRD to meet established ADR timelines and
return cases that do not meet these time lines to the appropriate office to continue with
formal processing.
5. The USMS Director should instruct the HRD to develop and implement a strategy for
increasing the use of trained USMS ADR facilitators.
6. The USMS Director should ensure the HRD is accepting only eligible cases for ADR
and at the appropriate stage.
7. The USMS Director should instruct the HRD to ensure that consistent, accurate, and
complete data is entered in a timely manner in the ADR database to allow for more
effective monitoring, oversight, and reporting.

Inconsistent Data Entry Procedures Results in Unreliable Case
Information
The ERT does not have written standards addressing the primary source, the
completeness, and the accuracy of the information about misconduct cases entered in
its automated database. At the time of our review, ERT staff could individually
determine and enter what they considered to be relevant data for each case. The
automated database does not contain edit checks identifying required fields or
incomplete or inaccurate information. The ERT does not periodically review the
database to identify and correct deficiencies to ensure the integrity of the information.
As a result, we found numerous instances of either incomplete (blank data fields) or
inaccurate (wrong dates) data entered in the ERT’s automated database. Complete
and accurate case management information is a critical element for monitoring the
progress of each case, for analyzing case trends, and for assessing needed changes in
the adjudication phase overall.
Recommendation
8. The USMS Director should instruct the HRD to develop and implement data
collection, entry, and review standards for ERT’s automated database.
Discipline Process Entities are not Effectively Coordinating Efforts

The USMS entities involved in the discipline process--the OIA, the ERT, the
OGC, the ADR Program, the EEO Office, and the Discipline Panel--must work closely to
ensure that misconduct allegations are investigated and adjudicated in a manner that is
consistent, timely, and responsive to the needs of USMS. During our interviews,
officials from these entities expressed concern or uncertainty about specific discipline
process responsibilities, procedures, timelines, and work quality. Some of the general
concerns mentioned by these officials involved the need for:
• cross-training to better understand the information requirements of the

various entities to process misconduct cases,
• improving or centralizing oversight of the entire discipline process,
• clearly defining responsibilities concerning discipline process duties,
• improving the timeliness in the discipline process,
• improving the exchange of information among the entities, and

• improving the OIA’s response for follow-up investigative requests.18
Officials told us that they had met periodically to discuss discipline process
issues. However, these meetings were discontinued about a year ago because of a
turnover in USMS leadership. We found no documentation describing the frequency or
what was discussed or accomplished at the meetings. Based on our interviews and
observations, we believe the USMS must improve coordination among the entities
involved in the discipline process. Our review shows the necessity for corrective actions
for some of the issues listed above. The USMS needs to renew its previous efforts to
identify and address issues that affect the discipline process.
Recommendation
9. The USMS Director should direct the HRD to reactivate these meetings with
representatives from the appropriate entities involved in the discipline process to identify
and solve discipline process issues. These meetings should occur periodically and a
written record of activities and decisions should be maintained.
Performance Standards Have not Been Established for Adjudicating

Misconduct Cases
The USMS has not established performance goals and measures for the
adjudication phase of the discipline process. The Government Performance and
Results Act of 1993 (GPRA) requires agencies to set multiyear strategic goals and
corresponding annual goals to measure the performance toward the achievement of
those goals and to report on their progress. Although the GPRA addresses the major
functions and operations of agencies, the concept of measuring outcomes to improve
effectiveness applies to all programs and processes. Setting goals and measuring
performance helps to establish priorities, control operations, communicate
accomplishments, and motivate staff.
The Department’s Strategic Plan for Fiscal Years 2000-2005 outlines specific
program goals, objectives, and strategies. One strategic goal is to “ensure excellence,
accountability, and integrity in the management and conduct of Department of Justice
programs.” A strategic objective supporting this goal addresses human resources.
18
Because requests to OIA for additional investigative work are usually accomplished
telephonically and rarely documented, the frequency of this issue could not be determined.

The USMS published three multi-year planning documents in response to the
GPRA and the Department’s Strategic Plan.19 Each plan addresses human resources.
The USMS Performance Management Program (PMP) identifies performance
measures related to the OIA’s investigative phase of the discipline process. However,
goals and measures for the ERT’s adjudication phase of the discipline process are not
included. In the absence of performance goals and measures in the broader USMS
planning documents, the HRD and ERT have not fully developed and implemented
internal performance goals, standards, and measures for guiding the work efforts of
ERT personnel and for identifying strengths and weaknesses in the adjudication of
misconduct cases overall.20 As a result, progress toward achieving basic desirable
goals and objectives of the discipline program goes unmeasured.
Recommendation
10. The USMS Director should instruct the HRD to develop performance standards for
the adjudication of misconduct cases and monitor cases against those standards.
The OIA Does not Report all Misconduct Allegations to the OIG
According to OIG policy memorandum, “Guidelines for Reporting Allegations of

Misconduct to the OIG,” July 1, 1998, and USMS Policy Directive 99-33, “Misconduct
Investigations,” August 2, 1999, misconduct allegations received by the OIA will be
forwarded to the OIG.21 We found that the OIA is not fully complying with these policies.
Prior to forwarding an allegation to the OIG, the OIA performs a “preliminary

investigation” of the allegation. If the OIA determines that the alleged misconduct did
not violate USMS policy or that enough information is not provided to warrant opening a
formal investigation, then the OIA considers the allegation “closed.” In this instance, the
allegation is not forwarded to the OIG for review.
The OIA’s FY 1998, FY 1999, and FY 2000 annual statistics show that 70, 93,
and 76 misconduct allegations were classified as preliminary investigations and closed.
These 239 misconduct allegations were not reported to the OIG as required.
• For FY 1998, the 70 misconduct allegations represented 28 percent of the

total 248 misconduct allegations received by OIA.
19
The planning documents are the USMS Fiscal Year 2000 Performance Management Program
(PMP), July 1999; the USMS Tactical Plan FY 2000-2002, July 1999; and the Marshal’s Service 2000:
The Strategic Plan of the USMS, 1997 and Beyond, February 1997.
20
Partial timelines for the adjudication of cases has been developed but not yet implemented.
21
This OIG policy memorandum was also directed to the Immigration and Naturalization Service
and the Bureau of Prisons.


Table 4 below and Table 5 on the following page show the types and numbers of
misconduct allegations that were preliminarily closed by the OIA and not reported to the
OIG in FY 1998 and FY 2000. These statistics were not available for FY 1999.
Table 4: Allegations Closed by OIA After Preliminary Investigations

and not Forwarded to the OIG—FY 1998
Allegation Number
Lost/Stolen Government Property 1
Firearms/Weapons Violations 1
Discrimination Complaints 2
Fiscal Improprieties 14
Prisoner Violations 7
Investigative Violations 2
Personnel Prohibitions 14
Off Duty Misconduct 4
On Duty Misconduct 14
Use/Misuse of Government-Owned Vehicles 4
Other Violations 7
Total 70
Source: USMS Office of Internal Affairs

Table 5: Allegations Closed by OIA After Preliminary Investigations
and not Forwarded to the OIG—FY 2000
Allegation Number
Conduct Unbecoming 39
Fraud or Theft 16
Hostile Work Environment 1
Misuse of a Government-Owned Vehicle 5
Misuse of Position 1
Missing or Mishandled Prisoner Property 7
Unfair Personnel Practices 7
Total 76
Source: USMS Office of Internal Affairs
The allegations include firearms violations, discrimination complaints, fraud, and hostile
work environment misconduct that require immediate or 48-hour reporting to the OIG by
the USMS according to OIG policy. See Appendix 1 for OIG classification levels for
reporting allegations.
One case in particular illustrates the importance of OIA reporting all misconduct
allegations to the OIG rather than discretionarily closing allegations through preliminary
investigations. This case was active and involved various allegations of unprofessional
misconduct concerning two USMS employees. These two employees were found to
have created a fictitious, sexually explicit letter that identified two other USMS
employees as the subjects of the letter. The letter was crafted to appear as an official
USMS document. Although the allegation was reported immediately to the OIA, the OIA
reviewed, closed, and referred the allegation back to the originating office for
“appropriate managerial action.” As a result, the immediate supervisor issued an oral
admonishment to one of the two employees involved. This allegation was not reported
by the OIA to the OIG, as required.
Approximately five months later, the OIA reopened the case and forwarded the
allegation to the OIG upon receiving requests to reopen the investigation from the HRD
and a division official charged with oversight of the office where the incident occurred.
The OIA conducted interviews with nine employees who had seen or heard of the letter.
This case remains open after approximately 22 months from the occurrence and initial
reporting of the incident. The Discipline Panel has reviewed the case and proposed
suspensions for 5 and 7 days, respectively, for the two employees. As of June 19,
2001, one case was in ADR and one case was in the decision stage of the adjudication
phase of the discipline process.

We also found that allegations for 16 of the 50 misconduct cases (32 percent) we
selected for our sample were not reported to the OIG. In 9 of these 16 cases, the OIA
never reported the allegations to the OIG. The OIA had formally investigated and
substantiated these 9 allegations and sent the reports of investigation to the ERT for
adjudication. The OIA was unable to provide any documentation or reasoning as to why
the 9 cases had not been reported to the OIG. Some of these cases involved
allegations of unauthorized use of a government-owned vehicle, unauthorized discharge
of a weapon, disrespectful conduct, and failure to properly transport prisoners.
The remaining allegations for 7 of the 16 cases had not been reported to the OIA
by the originating district office. Four of the seven allegations not reported occurred in
one district. As a result, the OIA was unaware of these allegations and therefore, could
not report them to the OIG.22 Some of these cases involved allegations of disorderly
conduct and failure to use proper restraints.
Separate from our case file review, we also interviewed five Chief Deputy United
States Marshals (CDUSM) who serve as the proposing officials for misconduct cases in
their respective districts. Three of the five CDUSMs we interviewed said they have
exercised discretion on whether or not to report certain types of misconduct to the OIA.
This discretion was based on the initial source of the complaint (internal or external to
the district) or the perceived severity of the misconduct. However, USMS Policy 99-33
does not allow for discretion by employees, supervisors, or managers in reporting
misconduct allegations. USMS Policy 99-33 states, “…employees are also responsible
for immediately reporting misconduct allegations or violations of policies and procedures
to their immediate supervisor, the OIA, or the OIG . . . USMS managers/supervisors
[are] responsible for…reporting all misconduct complaints immediately to OIA.”
The OIG has previously expressed its concern to the USMS regarding
compliance with the OIG reporting requirements. In an OIG memorandum sent to the
USMS, “Policy on Reporting Misconduct,” February 23, 1999, the OIG Investigations
Division stated,
We are concerned that current USMS reporting of

misconduct is not consistent with our July 1, 1998, reporting
guidelines policy memorandum. We are particularly
concerned with Classification I allegations which are the
most serious offenses, requiring immediate reporting to OIG
field offices, and often requiring contemporaneous response.
It is our perception that there may be confusion at the District
level regarding the requirements of reporting misconduct.
22
One of the seven cases was eventually reported to the OIG after a judge who presided over the
conviction of a USMS employee wrote a letter to the USMS Director expressing concern that misconduct
incidents may be occurring without management’s knowledge.

We understand that Districts are allowed to handle certain
“performance” issues at the local level. However, the line
between performance and misconduct is often not clear and
we are concerned that misconduct is being handled as
performance without reporting to OIA or the OIG.
Although OIG and USMS policies require that allegations of misconduct be

reported through the OIA to the OIG, adherence to these policies has been inconsistent
within the USMS. As a result, the OIA and the OIG are not fully aware of misconduct
allegations and cannot ensure that they are properly investigated and adjudicated. The
OIA and the OIG also do not have complete information on misconduct within the
USMS for analyzing trends, identifying systemic problems, and recommending solutions
to these problems.
Recommendations
11. The USMS Director should instruct all USMS districts, divisions, and headquarters
organizations to report all misconduct allegations to the OIA.
12. The USMS Director should instruct the OIA to report all misconduct allegations to
the OIG in accordance with OIG policy.

Appendix 1
Policies and Procedures
Legislation
A federal employee who has had a misconduct allegation substantiated by an

investigation is subject to disciplinary action. This action is imposed during the
adjudication phase as provided in the Civil Service Reform Act of 1978; and Title 5,
Code of Federal Regulations, Part 752, Adverse Actions; and 5 U.S.C. Chapter 75,
Section 7501-7504, 7511-7514.
Department of Justice
The Inspector General Act of 1978, as amended, and Attorney General Order
1931-94, dated November 8, 1994, require misconduct allegations concerning USMS
employees and contractors to be reported first to the OIG Investigations Division for
review and disposition. The OIG decides whether it will conduct an investigation or
refer the misconduct allegation to the Chief, USMS OIA, for subsequent investigation by
an OIA investigator, the originating district or division, or for discretionary closure if
appropriate.
The OIG Assistant Inspector General (AIG) for Investigations issued a

memorandum to the Immigration and Naturalization Service, the Bureau of Prisons, and
the USMS, dated July 1, 1998, which outlined guidelines for reporting misconduct
allegations to the OIG. This memorandum provided a general breakdown of
misconduct allegations into three separate classifications, with corresponding reporting
periods to the OIG depending on the severity of the allegation. Classification 1 requires
immediate reporting, and no investigation can be initiated prior to receipt and
classification of the allegation by the OIG. Classification 2 requires reporting within 48
hours. An internal investigation can be started but the OIG reserves the right to
terminate and initiate its own investigation. Classification 3 only requires that the
allegation be reported in a pre-determined monthly format. These three classifications
also carry certain reporting requirements if the investigation is referred back to the
component.
The AIG for Investigations issued an additional memorandum, dated

February 23, 1999, to the USMS which clarified policy requirements of reporting
misconduct given reporting and consistency concerns.

Justice Management Division
DOJ Human Resources Order DOJ 1200.1, “Discipline and Adverse Actions,”
August 25, 1998, which replaced DOJ Order 1752.1A, recognized that each Bureau has
different management requirements that must be addressed in determining the
appropriate offense penalty. This Order granted each Bureau the authority to establish
its own Schedule of Disciplinary Offenses and Penalties. However, the Bureaus are
required to notify the Department’s Workforce Relations Group (WRG) within the Justice
Management Division of any case that presents a significant legal (as opposed to
factual) issue that may be of interest to the Department. This requirement is due in part
to the potential of the WRG representing any Bureau (at the request of the Bureau or
the direction of the Assistant Attorney General for Administration) or the Department on
matters that fall within the jurisdiction of MSPB, its administrative judges, or the Office of
Special Counsel.
Discipline Delegation Policy
The USMS Policy Notice 94-002A, “Discipline Delegation Policy,” dated January
1995, describes who serves as the proposing and deciding officials for the following
misconduct categories:
Informal Discipline -- Minor corrective actions (i.e., oral admonishments, letters of

caution) are issued at the lowest appropriate level.
Disciplinary Actions of 14 Days or Less -- The Chief Deputy United States Marshal or
Branch/Unit Chief serves as the proposing official for all disciplinary actions warranting
a suspension of 14 days or less at the District or Division level. The U.S. Marshal or
Division Chief serves as the deciding official for all disciplinary actions warranting a
suspension of 14 days or less.
Disciplinary Actions Greater than 14 Days -- The Discipline Panel comprises five USMS
officials (two serve as alternates) who serve as panel members for two years. The
Discipline Panel reviews and issues proposed discipline action in all misconduct cases
that will result in suspensions greater than 14 days. The Discipline Panel can also
propose less severe discipline. A senior USMS official, selected by the Director, serves
as the deciding official for the Discipline Panel’s proposed discipline actions.

Other USMS Discipline Policies
Related policies and directives issued by the USMS that also identify misconduct
complaint reporting, investigation, and adjudication requirements are found in USMS
Policy Directive 99-33, “Misconduct Investigations,” and Policy Directive 99-18, “Code of
Professional Responsibility.” Related policy and procedures also are published in the
USMS Policy and Procedures Manual, Volume III, 3.13, Discipline and Adverse Actions.
However, the manual has not been updated since October 31, 1995, to fully reflect all
related and subsequent polices.
Pursuant to DOJ Order 1200.1, the USMS opted to retain the existing USMS
Table of Offenses as a guide in determining appropriate discipline penalties. The
USMS Policy and Procedures Manual states that the Table of Offenses “is intended to
provide guidance in the application of uniform discipline” and that management should
not apply a rigid or narrow interpretation when determining discipline action. The Table
“is intended to provide maximum flexibility in the assignment of penalties to employees
in a variety of grades and positions and for varying degrees of culpability.” The Manual
also states “…there is enough flexibility that offenses listed in the Table can be used in
proposing and deciding penalties for similar offenses not found in the Table.” There are
28 separate offense categories listed in the Table of Offenses. There are 99 separate
offense codes used to identify various misconduct allegations.
Merit Systems Protection Board — The Douglas Factors
In Douglas v. Veterans Administration (1981), the MSPB identified 12 relevant

factors agency management needs to consider and weigh in deciding an appropriate
disciplinary penalty. The factors are:
1. the nature and seriousness of the offense and its relation to the employee’s
duties, position, and responsibilities, including whether the offense was
intentional or technical or inadvertent, or was committed maliciously or for gain,
or was frequently repeated;
2. the employee’s job level and type of employment, including supervisory or

fiduciary role, contacts with the public, and prominence of the position;
3. the employee’s past disciplinary record;
4. the employee’s past work record, including length of service, performance on the
job, ability to get along with fellow workers, and dependability;
5. the effect of the offense upon the employee’s ability to perform at a satisfactory
level and its effect upon supervisors’ confidence in the employee’s ability to
perform assigned duties;

6. consistency of the penalty with those imposed upon other employees for the
same or similar offenses;
7. consistency of the penalty with the applicable agency table of penalties (which
are not to be applied mechanically so that other factors are ignored);
8. the notoriety of the offense or its impact upon the reputation of the agency;
9. the clarity with which the employee was on notice of any rules that were violated
in committing the offense, or had been warned about the conduct in question;
10. potential for employee’s rehabilitation;
11. mitigating circumstances surrounding the offense, such as unusual job tensions,
personality problems, mental impairment, harassment, or bad faith, malice or
provocation on the part of others involved in the matter; and
12. the adequacy and effectiveness of alternative sanctions to deter such conduct in
the future by the employee or others.

Appendix 2
Roles and Responsibilities
Department of Justice Office of the Inspector General
In 1989, the Office of the Inspector General (OIG) was created in the Department
of Justice pursuant to the Inspector General Act Amendments of 1988. According to the
Act and its legislative history, jurisdiction over the investigation of misconduct
allegations against Department employees was divided between the Department’s
Office of Professional Responsibility (OPR) and the OIG. OPR was responsible for the
investigation of misconduct allegations involving Department attorneys, criminal
investigators, and other law enforcement personnel. Responsibility for the investigation
of other matters was assigned to the OIG.
In Attorney General Order No. 1638-92, dated December 11, 1992, the Attorney
General clarified the jurisdictional division between OPR and the OIG. Under the 1992
Attorney General Order, the jurisdiction of the OPR was revised to extend to the
investigation of misconduct allegations against Department employees which implicated
the Department's core functions, defined as the "prosecutive, investigative, or litigative
functions of the Department." The responsibility of investigating matters not involving
the core functions was assigned to the OIG.
The OIG’s responsibility was changed by Attorney General Order 1931-94, dated
November 8, 1994.23 Under this Order, the OIG was given the responsibility of
reviewing and investigating any misconduct allegations committed by Department
employees, contractors, grantees, or other individuals conducting business with or
receiving benefits from the Department. This Order exempted from OIG review DOJ
employees who worked for the Federal Bureau of Investigation (FBI) and the Drug
Enforcement Administration (DEA)--each of these components has its own internal
OPR.
An Attorney General Order, dated July 11, 2001, assigned primary jurisdiction
over allegations of misconduct against employees of the DEA and the FBI to the OIG.
23
Attorney General Order 1931-34 gave the Department’s OPR jurisdiction to investigate
misconduct allegations by Department attorneys that relate to "the exercise of their authority to
investigate, litigate, or provide legal advice.” In addition, OPR also was given responsibility for
investigating misconduct allegations brought against law enforcement personnel when the allegations
relate to misconduct by attorneys within the jurisdiction of OPR.

The United States Marshals Service (USMS) is the nation's oldest federal law
enforcement agency. Since 1789, federal Marshals have served the United States
through a variety of law enforcement activities. The mission of the USMS is to protect
the federal courts and to ensure the effective operation of the judicial system. Other
areas of responsibility include fugitive investigations, witness security, prisoner
transportation, and asset seizure. The Director, Deputy Director, and 94 U.S. Marshals
appointed by the President direct the activities of 94 district offices. Approximately
4,210 personnel serve in the USMS--2,863 employees serve in operations positions and
another 1,347 serve in administrative positions.
USMS Office of Internal Affairs
In the USMS, all misconduct allegations are required to be forwarded to the

Office of Internal Affairs (OIA) and then forwarded to the OIG. After the OIG reviews the
USMS misconduct allegations, OIA conducts the majority of investigations. The
exceptions are allegations the OIG determines it should investigate, allegations the OIA
refers to other law enforcement entities, or allegations the OIA refers back to the
employee’s office of employment for investigation.
An investigation establishes supporting evidence for whether or not an allegation

is substantiated. If an allegation is not substantiated, the case is closed and a copy of
the case file is maintained by the OIA. If an allegation is substantiated, a copy of the
case file is forwarded to the ERT in the HRD for review to begin the adjudication phase
of the discipline process.
At the time of our review, the OIA had a staff of 10 personnel consisting of one
Chief, six investigators, and three support staff.
USMS Employee Relations Team
The Employee Relations Team (ERT), under the supervision of the Assistant
Director for the HRD, assists USMS employees in the following areas: discipline and
performance actions, performance management, leave administration, and awards. At
the time of our review, the ERT was authorized four staff positions but only had on-
board one team leader and two employee relation specialists. The individual in the role
of team leader was serving in an acting capacity. At the conclusion of our review, the
position was officially filled.
The ERT is responsible for the adjudication of misconduct cases. Upon receipt
of an investigative case file from the OIA, the ERT team leader reviews the case and
assigns it to an ERT staff member, who is responsible for monitoring the progress of the
case. The ERT team leader also determines whether a case should be referred back to

the district or division or forwarded to the Discipline Panel for review. The ERT also
ensures any proposed discipline action is in accordance with USMS Discipline
Delegation Policy.
The ERT is responsible for maintaining the official misconduct case files;
monitoring the adjudication progress of each case; providing assistance in the form of
advice, information, or expertise to employees, district, division, and Discipline Panel
personnel; and reviewing and approving all proposal and decision letters for consistency
and compliance. Also, according to USMS policy, the ERT can continue to adjudicate a
case by revising the original allegation if the facts support this action or issue a letter of
clearance or of closure in a case if the facts support this action.
Proposing and Deciding Officials
Once the ERT reviews and decides to adjudicate a case, it is forwarded to the
proposing official at the appropriate level (district, division, or Discipline Panel) for
review. Based on the information in the investigative case file, any prior misconduct
information on the employee provided by the ERT, and any first-hand knowledge of the
case or employee (usually at the district level), a proposed discipline action by the
official(s) is recommended. This action is presented in the form of a proposal letter,
prepared by ERT staff, to the employee for signature. The letter also informs the
employee of available options and specific time periods that must be met.
Officials determine the level of discipline actions by reference to guidelines

established in the USMS Table of Offenses. If the proposed discipline calls for a
suspension of over 14 days, a copy of the proposal letter and the investigative case file
are also provided to the Office of General Counsel (OGC) for review. If the proposed
discipline action calls for removal of the employee, then a copy of the proposal letter
and the case file are provided to the WRG in the Department’s JMD for review.
The deciding official reviews the case file and the proposal letter and considers
any written or verbal response submitted by the employee to the proposed action before
rendering a final decision. This decision is prepared and finalized in written format by
ERT before being presented to the employee.
USMS Office of General Counsel
The OGC’s involvement in the discipline process occurs when a proposed

discipline action against an employee calls for a suspension of more than 14 days. This
level of proposed discipline action can be appealed to the MSPB. Because the OGC
represents the USMS in these cases before the MSPB, the OGC is provided with a
copy of the proposal letter and investigative case file for review. The OGC reviews the
thoroughness of the investigation, the proposal notices, and the reasonableness of the
proposed penalties and provides an opinion that the identified offenses are sustainable

and that the proposed discipline action is reasonable and warranted based on the
evidence. In addition, the OGC ensures that the relevant Douglas factors are given
consideration in the penalty determination. If a case is appealed to the MSPB, control
of the case is relinquished to the OGC by the ERT. The OGC also becomes involved in
the discipline process when employees choose to resolve their cases using the ADR
Program. The OGC generally acts in a consultant role to USMS management
concerning this program.
USMS Alternative Dispute Resolution Program
The ADR Program began in the USMS as a pilot project in 1996 and was
implemented as a fully operational program in October 1998. Oversight of the program
is the responsibility of the ADR Ombuds. The ADR Ombuds can decline or discontinue
any request or case if it is deemed to be in the best interest of the USMS. The USMS
ADR Handbook, dated June 1999, describes the program as being non-traditional, non-
adversarial, and informal in nature. By using a trained facilitator as a neutral third party,
the program is designed to resolve workplace conflicts, including misconduct cases,
between two or more parties to achieve an agreement that benefits all parties.
According to USMS standards, 60 calendar days are allowed for the ADR Program to
reach a conclusion. An additional 30 days is allowable if both parties consent.
Management as well as employees can request ADR and can have counsel present.
USMS Equal Employment Opportunity Office
USMS employees may file EEO complaints. Some of the factors that would
qualify as the basis for an EEO complaint involve race, sex, age, or religious
discrimination. A complaint has to be registered with an EEO Counselor within 45 days
of the date of occurrence. If a complaint cannot be remedied during the informal phase
of the EEO process and the evidence warrants, the USMS EEO Office will conduct a
formal investigation (to be completed within180 days). If an EEO complaint is related to
or a result of a misconduct allegation, this can affect the overall processing of the
misconduct case. During the informal phase of the EEO process, the employee is also
informed of the ADR Program as an option.
Merit Systems Protection Board
Established by the Civil Service Reform Act of 1978, the MSPB is an

independent agency in the executive branch of the federal government.24 The MSPB is
charged with oversight of the federal government's merit-based system of employment.
In most cases, this is accomplished by hearing and deciding appeals from federal
employees being considered as recipients of major personnel actions, such as removal
24
The Act replaced the Civil Service Commission with three agencies: the MSPB, the Office of
Personnel Management, and the Federal Labor Relations Authority.

from service. Other, less serious, actions may be appealed as well. The MSPB also
hears and decides other types of civil service cases, reviews regulations of the Office of
Personnel Management, and conducts studies of the merit system.

Appendix 3
Case File Characteristics and Offenses
Table 5: Misconduct Case File Characteristics

50 Case Sample
Assignment Number
District Operations 44
District Administration 2
Headquarters Administration 4
Classification
District Operations -- Non-Supervisory 31
District Operations -- Supervisory 13
District Administration -- Supervisory 2
HQ Administration -- Supervisory 2
HQ Administration -- Non-Supervisory 2
Grade
GS-7 4 (8%)
GS-9 1 (2%)
GS-11 5 (10%)
GS-12 25(50%)
GS-13 9 (18%)
GS-14 1 (2%)
GS-15 5 (10%)
Sex
Male 42
Female 8
Race
White 31
Black 11
Hispanic 5
American Indian 2
Asian 1
Source: USMS

Table 6: Misconduct Case Sample by Offense Category
Number of
Offense Category Misconduct
Cases
Unauthorized Use of a Government-Owned Vehicle
8
(GOV)
Unauthorized Use of Government Property (Travel
6
Credit Card)
Violations of Standards of Conduct 5
Disorderly Conduct 5
Discharge of a Weapon with no Apparent Threat 5
Failure to Report 3
Failure to Honor Just Debt (Travel Credit Card) 2
Improper Restraint of a Prisoner 2
Improper Seating of a Prisoner 2
Disrespectful Conduct 2
Failure to Follow USMS Policy 1
Improper Use of a GOV 1
Misuse of Office 1
Conversion of Government Funds to Personal Use 1
Assault on a Prisoner 1
Falsification, Misstatement of Employment 1
Discrimination 1
Disgraceful Conduct 1
Association with an Individual Known to be Involved
1
in Criminal Activity
Failure to Disclose All Assets on an Annual Executive
1
Financial Disclosure Form
Total 50
Source: USMS

Appendix 4
USMS’s Response to the Draft Report

Introduction
The Department of Justice Office of Inspector General (DOJ-OIG)

Evaluation and Inspections Division conducted an evaluation of the discipline
process in the United States Marshals Service to determine whether discipline
actions taken in response to substantiated misconduct allegations were
consistent, timely and in accordance with USMS policy.
We appreciate the opportunity to comment on the major findings of the

report, and agree with all of the report findings except Recommendation One.
Under Recommendation One, while we agree in principal that such detailed
explanations and documentation could be helpful from the perspective of the
DOJ-OIG evaluation, we feel that when considering the overall process, from
investigation to completion of a third-party review, this recommendation is not
practical.
We trust that the DOJ-OIG will take the opportunity to reconsider their
position on this recommendation based on our response, which we feel is
consistent with Federal sector disciplinary requirements and accepted practices
among the Federal employee relations community.
The following responses address each of the DOJ-OIG recommendations:
Recommendation 1: The USMS Director should instruct the HRD to improve

adherence to the Federal standards for documenting misconduct case actions
and consider implementing additional case documentation standards as needed.
Response: Recommendation Not Accepted:
The Employee Relations Team (ERT) will continue to adhere to Federal

standards. We agree that Federal standards require documenting misconduct
cases. However, we do not agree that Code of Federal Regulations (CFR)
documentation standards require the detailed explanations outlined in the
evaluation report. We believe that when considering the overall process, from
investigation to completion of any potential third-party review, this
recommendation is not practical. The basis for this conclusion is outlined below.
• In several of these cases that were reviewed during the DOJ-OIG

evaluation that resulted in disciplinary actions of 14 days or less, we
acknowledge that some of the supporting documentation was not present
in the case files. These cases were adjudicated at the local level, and
while local managers were directed to provide copies of oral and written
replies, in some cases they apparently did not. ERT will remind local
managers of their obligation to provide this documentation and will further
instruct Employee Relations Specialists to ensure that this documentation
is maintained in the disciplinary case file.
• The Federal standards cited in the OIG report, 5 CFR Section 752.406,
specifically apply to formal disciplinary actions effecting a penalty range
greater than a 14-day suspension. In addition, these standards do not
apply to cases that are resolved by use of settlement agreements, where
employees waive their rights to the normal disciplinary process. In a
review of these cases effecting a penalty greater that a 14-day
suspension, all applicable cases complied with the requirements set forth
in 5 CFR Section 752.406, in as much as copies of written replies and
summaries of oral replies were present in these files. In other cases
where no oral and/or written reply was made, this fact was documented in
the decision letter.
• When considering the entire disciplinary process, including the fact that
discipline is subject to further review by appellate bodies, it is an accepted
Federal personnel management practice not to “litigate” a disciplinary
action in the decision letter.
• The DOJ-OIG based their findings on a review of 50 selected misconduct

cases. Since these cases were not selected at random but were chosen
based on specific criteria, the report should make it clear that the statistics
arrived at cannot be applied to the entire universe of cases.
• The DOJ-OIG review appears to conclude that a disparity between

proposal and decision warrants a concern, and that such a disparity
demonstrates a weakness in the system. However, we believe that we
are compelled to give appropriate weight and consideration to the due
process rights of employees and the Douglas factors. While the focus of
the DOJ-OIG review was the discipline process only, the application of this
process must take into consideration the overall picture, which could
include such issues as the quality of the evidence in the discipline file and
the strategies that may evolve during third party litigation. The strength of
this position is evidenced by our success in third-party proceedings.
• Regarding consistency of penalty, in the USMS there are in excess of 200

possible proposing and deciding officials who could be involved in the
disciplinary process at any given time. In making consistency
determinations, the third-party review standard requires that deciding
officials be consistent with their own decisions. Therefore, no conclusions
should be drawn from an across-the-board comparison of discipline
penalties.
Recommendation 2: The USMS Director should instruct the HRD to ensure that
all formal discipline actions are enforced and properly documented in the official
personnel folders.
Response: Recommendation Accepted. We concur with this

recommendation. On March 1, 2001, the Employee Relations Team
implemented new procedures to ensure that all disciplinary actions were properly
documented and enforced. At that time, the following procedures were
established for all discipline actions greater than a letter of reprimand:
• When the decision letter is signed, a Request for Personnel Action (SF-
52) identifying the suspension dates will be prepared by the ER Specialist
managing the case.
• A copy of the signed SF-52 (s) will go to Staffing.
• A copy of the signed SF-52 (s) will go to the Specialist for inclusion in the
discipline file.
• A copy of the signed SF-52 (s) will be maintained in a binder.
• Approximately one pay period after the effective date of the suspension,
ERT will check the payroll system to determine if the suspension was
recorded.
• If the suspension was not recorded in the payroll system, the Specialist
managing the case will be notified.
• The Specialist will determine if a Notification of Personnel Action (SF-50)

was prepared and follow up (with district/headquarters office) to determine
if the suspension was served.
• If the suspension was not served, the Specialist will obtain from
management new dates when the suspension will be served.
• A new SF-52 correcting the dates of the suspension will be prepared and
the above steps will again be followed.
• If there are unusual issues involving the suspension, the Specialist will
notify the Team Leader for appropriate action.
Recommendation 3: The USMS Director should instruct the HRD to establish

time lines for the adjudication of misconduct cases and to use the time lines to
monitor the status of the cases through the process.
Response: Recommendation Accepted:
ERT has time lines for issuance of the proposals: 90 days for Discipline Panel
disciplinary actions and 30 days for disciplinary actions delegated to
District/Division Managers. Employees have 10 days to submit their replies. In
cases where employees request additional time to make their replies, the
deciding official may extend this time line as he determines is necessary to afford
the employee sufficient time to reply.
Timeliness has always been and will continue to be a concern in the disciplinary
process.
Additional internal goals will be informally established and revised as needed to

ensure the timely adjudication of disciplinary cases, keeping in mind that the
cases that normally take the longest time to adjudicate are usually the most
complex and usually involve the most severe discipline, up to and including
removal. These internal standards and goals will be used as a management tool
to assist in the process, but in all fairness to the employee, we do not want these
standards to drive the process. We do not feel that it is necessary or appropriate
to establish formal time lines.
According to DOJ 1200.1, Part 3, Labor/Employee Relations, Timing of

Discipline: “There is no limitation with respect to when discipline must be affected
after the commission of misconduct. However, managers are encouraged to act
in a timely manner.” This guidance seems to support our position that timeliness
is important, but not necessarily the key element in taking a disciplinary action.
There is nothing in this order that makes time lines a requirement in the
disciplinary process.
We will constantly strive to improve in these areas, and make every effort to
document any significant delays in the process in the disciplinary case file.
In addition, on March 7, 2001, all ER Specialists were reminded to ensure that all
correspondence that relates to the case file should be maintained in the case file,
including, but not limited to, requests for extension, requests for information, etc.
Each Specialist was also reminded to include any and all
communications/documentation that would identify or explain any significant time
delays.
Recommendation 4: The USMS Director should instruct the HRD to meet

established ADR time lines and return cases that do not meet these time lines to
the appropriate office to continue with formal processing.
Response: Recommendation Accepted. The ADR policy is being revised to

automatically return the disciplinary action to the formal processing once the
established time lines have expired. ADR may continue at the option of the
parties, but, formal adjudications of discipline will occur.
Recommendation 5: The USMS Director should instruct the HRD to develop

and implement a strategy for increasing the use of trained USMS ADR
facilitators.
Response: Recommendation not accepted: Due to a revision in the ADR

policy (recommendation # 6) there will be no need for more trained USMS
mediators to handle these cases. Sufficient numbers of mediators are available
for lesser discipline matters that are not as complex.
Recommendation 6: The USMS Director should ensure the HRD is accepting

only eligible cases for ADR and at the appropriate stage.
Response: Recommendation accepted: The ADR policy is being revised

such as to not provide an ADR option for pre-decisional appeal of major
disciplinary actions, i.e., those greater than 14 days and appealable to the
MSPB.
Recommendation 7: The USMS Director should instruct the HRD to ensure that
consistent, accurate, and complete data is entered in a timely manner in the ADR
database to allow for more effective monitoring, oversight, and reporting.
Response: Recommendation Accepted: Currently the ADR process has in

place an excellent data and record keeping system. Due to personnel shortages,
the data entry requirements were not being met. With the addition of another
staff member to the ADR program, these requirements will be met on a
continuing basis.

and implement data collection, entry, and review standards for ERT’s automated
database.
Response: Recommendation Accepted: The Employee Relations Team will

establish standards for data collection, entry, and review for ERT’s automated
database. Standards will be established NLT November 30, 2001.
Recommendation 9: The USMS Director should direct the HRD to reactivate

these meetings with representatives for the appropriate entities involved in the
discipline process to identify and solve disciplinary process issues. These
meetings should occur periodically and a written record of activities and
decisions should be maintained.
Response: Recommendation Accepted: On a monthly basis, representatives

from IA, ADR, OGC and EEO will meet with the Employee Relations Team to
identify, discuss and resolve disciplinary process issues. A written record of
these activities and decisions will be maintained by the ER Team. The next
meeting is scheduled to take place on October 3, 2001.
performance standards for the adjudication of misconduct cases and monitor
cases against those standards.
Response: Recommendation Accepted: Performance standards have

traditionally been in place for the ER Team in that the ER Specialist was
expected to have the proposed disciplinary action memorandum mailed to the
district within 30 days of receipt of the investigative file. In addition, the
traditional standard for cases being sent to the Discipline Panel was to have the
proposed disciplinary action mailed to the Discipline Panel within 90 days of
receipt of the investigative file. Prior to the implementation of a standardized
Performance Plan for all USMS employees in January 1997, each ER Specialist
had a Performance Plan that included these specific standards.
In December 1999, this standard was again cited in the Mission and Activity
Statement for the Employee Relations Team as follows:
1. Prepare proposals for all disciplinary actions for issuance by the USMS
Discipline Panel within 90 days.
2. Prepare proposals for all disciplinary actions for issuance by

District/Division Managers within 30 days.
A copy of this statement has been provided to the OIG.
Recommendation 11: The USMS Director should instruct all USMS districts,
divisions, and headquarters organizations to report all misconduct allegations to
the OIA.
Response: Recommendation Accepted: All USMS districts, divisions, and

headquarters organizations will be reminded of their responsibility to report all
misconduct allegations to the OIA.
Recommendation 12: The USMS Director should instruct the OIA to report all
misconduct allegations to the OIG in accordance with OIG policy.
Response: Recommendation Accepted: OIA has always reported

classification one and two allegations to the OIG as required by OIG guidelines.
Some class three allegations were not reported to the OIG. These unreported
allegations were found either to be unsubstantiated after the preliminary
investigation or to involve misconduct by contractors. Pursuant to the OIG
findings, OIA will forward all allegations to the OIG as required by the reporting
guidelines. Currently, OIA is working with the OIG to electronically report class
three allegations on a monthly basis. The changes in reporting to the OIG have
been implemented and the OIA is in full compliance with the guidelines.
On September 28, 2001, the Office of the Inspector General (OIG) issued
the final report to the Acting Director, United States Marshals Service (USMS),
entitled “Review of United States Marshals Service Discipline Process." The
report contained 12 recommendations that required action by the USMS. The
USMS response, dated October 5, 2001, addressed each of the
recommendations and is included as Appendix 4 in the report. Our analysis of
the USMS response follows and is included as Appendix 5 in the report.
Recommendation Number I - Resolved - Open. Although the USMS

response did not agree with several aspects of our finding, including our
conclusion that most of the case files did not meet the Code of Federal
Regulations (CFR) case documentation standards, the USMS agreed to adhere
to the federal standards for documenting misconduct cases. The USMS
responded that many of the case files the Office of the Inspector General (OIG)
reviewed contained the required documentation. In addition, the USMS
response stated that the information contained in the decision letters in the
case files the OIG reviewed was adequate because the CFR does not require
decision letters to include a “detailed explanation" to meet CFR standards.
However, our report states that the CFR requires that the reasons for the
discipline actions, not a detailed explanation, be documented. We found that
the decision letters did not consistently provide adequate reasoning to
understand why the deciding official mitigated proposed discipline action. The
USMS response also concluded that our recommendation to improve adherence
to CFR standards was impractical, when the overall disciplinary process is
considered, but it failed to explain why improved adherence to CFR standards
was impractical.
The USMS response to Recommendation Number 1 also includes

comments on several specific aspects of the report. Our response to each of the
comments follows.
• In its response, the USMS acknowledged that several of the case files we
reviewed involving discipline action of less than 14 days may not have
contained all of the required supporting documents because the cases
were adjudicated at the local level (District and Division). For those cases
adjudicated at the District and Division level, the USMS stated that it will
instruct the Employee Relations Team (ERT) to remind local managers of
the obligation to provide this documentation and will further instruct the
ERT to ensure that this documentation is maintained in the discipline
case file.
We agree that this corrective action for cases adjudicated at the District
and Division level is important, but it will not fully address the
documentation deficiencies we found in the other case files adjudicated
by the Discipline Panel. Not all cases resulting in discipline action of 14
days or less are reviewed and adjudicated at the District and Division
level. Of the 50 cases in our review, 22 cases were initially determined to
be serious enough to warrant being sent to the Discipline Panel by the
ERT for review and adjudication. After review and adjudication by the
Discipline Panel, only 11 of these cases resulted in a discipline action of
more than 14 days. The other 11 cases resulted in a discipline action of
14 days or less. Yet, most of these 22 case files did not contain all the
required documentation as defined in the CFR. Therefore, we recommend
that the USMS should instruct the ERT to ensure that all cases
processed at all adjudication levels contain the required documentation.
• The USMS response notes that 5 CFR Section 752.406 provides the
federal standard for documenting misconduct cases involving more than
14 days discipline. As provided in our report, this section states "the
agency shall maintain copies of the items specified in Title 5 United
States Code (U.S.C.), section 7513(e) and shall furnish them upon
request as required by that subsection." Title 5 describes these items as
“Copies of the notice of proposed action, the answer of the employee
when written, and a summary thereof when made orally, the notice of
decision and reasons therefore, and any order effecting an action covered
by this subchapter, together with any supporting material..." Although
not specifically mentioned in the report, Title 5, section 7503(c) requires
the same case documentation standards for discipline actions involving
14 days or less.
The USMS also comments that not all cases in our review required all of
the documents described in the CFR standards. We agree that each case
file we reviewed did not always require a proposal letter, an employee
response, and a decision letter, because the case may not have gone
through the entire formal discipline process. This was the case in 20 of
the 50 case files we reviewed. Six cases were closed through the use of a
settlement agreement, 3 cases were closed due to the employee deciding
to retire before the process was completed, and 11 cases were closed with
a letter of closure issued by either the ERT or the Discipline Panel.
During our review, we considered the extent the formal discipline process
had been completed and the effect this had on the CFR documentation
requirements for each case.
In addition, the USMS stated that all the case files in our review that involved
an imposed discipline action of more than 14 days (total of 11) complied with
the CFR documentation requirements. While we found decision letters in case
files that indicated an employee had responded, a copy of the written response
or a summary of the oral response was not included in the case file as required
by the CFR, with the exception of 2 cases adjudicated at the District level.
Thus, in most of the 30 cases that went through the entire discipline process,
the USMS was not consistently meeting the entire CFR documentation
standard for its case files with respect to employee responses.
• The USMS asserts that it is an accepted federal practice not to “litigate" a discipline
action in the decision letter, but the USMS response does not explain what this
means. Our report does not propose that the USMS prepare decision letters that
itemize or discuss the merits of all evidence provided during the disciplinary
process. The report cites the need for the USMS to improve adherence to the CFR
standard that requires the reasons for the imposed discipline actions to be included
in the notice of decision. In the cases that went through the entire formal discipline
process where a deciding official mitigated the proposed discipline action, we found
varying levels of information describing the reasons for mitigation. Our report
provided specific examples of case files that did not contain sufficient information to
determine the reasons for the imposed discipline actions. For example, the report
describes certain cases that had multiple charges supported in the proposal letter,
We found that the deciding official in these cases did not indicate that consideration
was given to each of these charges when determining discipline action. In other
cases, the discipline action imposed fell below the range of penalties suggested in
the USMS Table of Offenses or the discipline action imposed appeared to be
inconsistent to other similar discipline actions or lenient and the deciding official did
not include the reasons for the imposed discipline.
The USMS also did not agree with our finding that the reasons for the
imposed discipline actions were not adequately documented in the
decision letters. As an argument for the adequacy of the documentation,
the USMS referred to its success with third party reviews -- an
explanation we believe is not directed to the issue discussed in our
report. Third party reviews, such as a review by the Merit System
Protection Board, involve more than the case file contents to determine
the merits of a case. As the case examples in the report show, we were
not always able to understand the reasons used in imposing certain
penalty decisions from the decision letter. A case file should allow for a
reviewer to follow the entire progression of the discipline process and, if
necessary, draw reasonable and accurate conclusions on the fairness or
the consistency of a discipline action imposed. A case file should contain
the necessary documentation so that the logical progression, direction,
and reasoning used in the case, from the investigative stage to the
decision letter, are clear and defensible.
• The USMS indicates in its response that it is important for the report to
clarify that the statistics in the report are not based on a random sample
and therefore cannot be applied to the entire universe of cases within the
USMS. Early in the report, we provided the specific criteria for selecting
the 50 case files for our review, and it is clear from the description in the
report that the sample was not a random sample. However, based on the
high incidence of cases with insufficient documentation in our selected
sample, it is reasonable to assume that similar deficiencies exist in other
cases.
• The USMS response comments that our report appears to conclude that
a disparity between the proposed penalty and the final decision warrants
concern and that such a disparity demonstrates a weakness in the
system. Our report fully acknowledges the complexity of misconduct
cases and the challenges associated with adjudicating them. However,
based on our case file review, our report does raise important concerns
over the inconsistent penalties and the disparity in the penalty decisions.
The report shows that 19 cases were mitigated below the proposed
penalty and in 13 cases the final penalty fell below the suggested range
of penalties. The report also includes specific cases where similar
offenses adjudicated during the same time frame received differing levels
of proposed and imposed discipline, cases where prior offenses were not
considered during the final penalty decision, or cases that failed to show
that all offenses had been considered and addressed by the deciding
official. Thus, the imposed discipline appeared inconsistent with similar
cases or too lenient. The report's conclusions, however, are derived from
our review of the case files, which did not always have the required or
adequate level of documentation to support or explain the reasons for the
imposed discipline actions.
The response also again comments on "the strength" of the USMS position as
evidenced by the USMS's success in third-party proceedings. That success rate
does not answer the question of whether USMS penalty decisions are
inconsistent. Moreover, success rates in third party proceedings may be based
on numerous factors, one of which could be undue leniency in the USMS's
proposed discipline actions.
• The USMS asserts that our report should not draw conclusions regarding
the consistency of penalties from a comparison of cases. The USMS
states that there could be over 200 possible proposing and deciding
officials, who could be involved in the disciplinary process at any given
time, and based on the third
party review standard it is only critical that the deciding officials are
consistent within their own decisions. Contrary to the USMS's view that
consistent penalty decisions are not critical or possible, the OIG believes
that the discipline process should result in supportable and consistent
disciplinary decisions, regardless of the number of possible proposing
and deciding officials, and the disciplinary decisions should be made
after the deciding officials consider all relevant factors in a case. Our
review of the case files did not indicate that all relevant factors were
considered because the documentation was not complete and the
decision letters did not adequately explain the reasoning used to
determine the imposed discipline actions.
Consistency in penalty decisions supported by sound and documented

reasoning is the hallmark of an effective, fair and objective disciplinary
process. As we state in the report, the USMS has taken steps in the past
to improve the disciplinary process and has established a Discipline
Panel to provide consistent review and adjudication of misconduct cases,
which may result in discipline action of over 14 days.
The ERT is the caretaker of the USMS disciplinary process, and has the
overall responsibility for ensuring the discipline process serves both the
employee and the agency. According to USMS procedures, the ERT is
responsible for maintaining the official misconduct case files; monitoring
the adjudication progress of each case; providing assistance in the form
of advice, information, or expertise to employees, district, division, and
Discipline Panel personnel; and reviewing and approving all proposal and
decision letters for consistency and compliance. The USMS response
indicated that over 200 individuals potentially play a role in the
disciplinary process at any given time. Because of the large number of
individuals involved in the process, it is crucial that the ERT provide
sufficient guidance to ensure the standards for documenting misconduct
are consistently met and followed.
To close this recommendation the USMS should issue a memorandum

that clarifies the importance and necessity of meeting CFR documentation
standards for misconduct case files to its staff and officials involved in the
disciplinary process. This memorandum should also identify the documents
the USMS requires in its misconduct case files and highlight the CFR
documentation requirements. Specifically, the memorandum should identify
the employee response (when provided) as a required part of the case file. The
memorandum should also address the need for a more detailed review by the
ERT staff of each decision letter, especially when it contains mitigating factors.
This memorandum should be distributed to all entities involved in the
discipline process for reference purposes. We will consider this
recommendation resolved but will keep it open until we receive a copy of this
memorandum.
Recommendation Number 2 - Resolved - Open. The USMS accepted

our recommendation to ensure that all formal discipline actions are enforced
and properly documented in official personnel folders. We consider the
recommendation resolved but will keep it open until a copy of the procedures
that had been implemented on March 1, 2001 is received.

our recommendation to establish time lines for the adjudication of misconduct
cases and to monitor the status of the cases through the process. While the
ERT has partial timelines in place, as stated in the response, these time lines
were not used to measure timeliness of adjudication. Formal time lines should
be established for each segment of the adjudication process, from the time the
ERT accepts a case file from the OIA to when the decision letter is signed. The
OIG realizes that each misconduct case is unique and involves certain
complexities. These timelines would not be designed to “drive the process," but
rather serve as a gauge to measure where each case should be at a given point
in the process and an indicator when the process is not performing as
efficiently as is should. These timelines would be flexible and subject to
modification as analysis was performed on the accuracy of the initial attempt to
establish these timelines. We consider the recommendation resolved but will
keep it open until a set of formal timelines is provided.

our recommendation to meet established Alternative Dispute Resolution (ADR)
timelines and return cases that do not meet these timelines to the appropriate
office to continue with formal processing. We consider the recommendation
resolved but will keep it open until a copy of the revised ADR policy is provided.
Recommendation Number 5 - Resolved - Closed. The USMS accepted

our recommendation to develop and implement a strategy for increasing the
use of trained USMS ADR facilitators. Due to a change in ADR policy, which
will reduce the number of ADR cases and will remove the need for increasing
the use of trained facilitators, we consider the recommendation resolved -
closed.

our recommendation to accept only eligible cases for ADR and at the
appropriate stage. We consider the recommendation resolved but will keep it
open until a copy of the revised ADR policy detailing the change is provided.

our recommendation to ensure that consistent, accurate, and complete data is
entered in a timely manner in the ADR database to allow for more effective
monitoring, oversight, and reporting. Based on the USMS response that
additional staffing will prevent data integrity from being a concern in the future
we consider the recommendation resolved - closed.

our recommendation to develop and implement data collection, entry, and
review standards for the ERT's automated database. We consider the
recommendation resolved but will keep it open until a copy of the data entry
standards, scheduled to be completed by November 30, 2001, are provided.

our recommendation to reactivate meetings with representatives for the
appropriate entities involved in the discipline process to identify and solve
disciplinary process issues. Based on the USMS response we consider this
recommendation resolved - closed.

our recommendation to develop performance standards for the adjudication of
misconduct cases and monitor cases against those standards. The USMS
response only refers to performance standards that address timelines for part
of the adjudication segment of the discipline process. These timelines are a first
step towards measuring an important aspect of the discipline process, but the
timelines should be expanded to include all activities involved in case
adjudication. The USMS should also consider the establishment and
implementation of performance standards for other important aspects of the
discipline process, such as consistency or customer satisfaction. The USMS
will not be able to measure the success or improve the discipline program
without having complete timelines and other performance standards in place.
Based on the response and discussions with USMS officials, we consider this
recommendation resolved - closed.

our recommendation to report all misconduct allegations to the Office of
Internal Affairs (OIA). We consider the recommendation resolved but will keep it
open until a copy of the memorandum distributed to internal USMS entities is
provided.

our recommendation for the OIA to report all misconduct allegations to the OIG
in accordance with OIG policy. Based on the response provided by the USMS
we consider this recommendation resolved - closed.
Please provide the information required to close the open

recommendations within 45 days of this memorandum. If you cannot provide
the information or cannot complete the corrective action, please advise us of
the expected completion date. If you have any questions regarding your
response, please contact Barbara Kee on 202-616-4615.
cc: Isabel Howell

Liaison
Vickie Sloan
Director
Departmental Audit Liaison Office
STATEMENT OF
THE HONORABLE MICHAEL B. MUKASEY

ATTORNEY GENERAL
UNITED STATES DEPARTMENT OF JUSTICE
BEFORE THE
UNITED STATES HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY
CONCERNING
“OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE”
PRESENTED
July 23, 2008

I appreciate the opportunity to come before you today to talk about the work of
the men and women of the Department of Justice.
I have now been Attorney General for more than eight months, and there is
slightly less than seven months remaining in this Administration. As I move into the
second half of my service, I would like to outline my priorities during the time I have left
and to review our progress in the five areas on which I have primarily focused so far.
As I indicated six months ago to this Committee, I am confident in relying on the
talented, committed, and dedicated professionals at the Justice Department and I take
great pride in them. During the last six months, I have been privileged to become better
acquainted with these fine men and women and with the great work that they do. I
deeply appreciate their resolute service to our Nation.
At the outset, I would like to outline two areas where I plan to focus my attention
during my remaining time at the Department of Justice. First, the election season is upon
us, and it is critical that the Department make every effort to assist state and local
governments in ensuring that the November elections run as smoothly as possible and
that the American people have the utmost confidence in our electoral process. The
Department is providing training to the lawyers and investigators who will be most
responsible for those efforts. Just a few weeks ago, for example, the Department held its
seventh annual Ballot Access and Voting Integrity conference at the National Advocacy
Center in Columbia, South Carolina. I spoke to the lawyers and agents in attendance
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about the importance of their work—of safeguarding the voting rights of all who are
entitled to vote and of ensuring that those votes are not undermined or diluted by fraud or
corruption. And I stressed the necessity of pursuing these cases according to what the
law and facts require, and not based on partisan or political considerations.
The Department has primary responsibility for safeguarding the voting rights of
all who are entitled to participate in elections. Through vigorous enforcement of the
Voting Rights Act—one of the most important and most successful pieces of civil rights
legislation in our history—the Department ensures that Americans of all races and colors
as well as language minorities are able to participate effectively in the political process.
Through other statutes—like the Uniformed and Overseas Citizens Absentee Voting Act,
the Help America Vote Act and the National Voter Registration Act—the Department
protects the vote of others in our society whose needs deserve particular attention.
The Department also helps guarantee the integrity of our elections through
criminal laws combating voter fraud. In recent years, some have tried to suggest a
conflict between protecting voting rights and combating voter fraud. But those are really
two sides of the same coin. If some of our citizens are denied their right to vote, that is a
form of voter fraud, in the sense that the outcome of the election will not accurately
reflect the popular will. If some voters engage in fraud, and either vote when they are not
entitled to, or vote more than once, that dilutes the voting rights of all legitimate voters.
Both protecting voting rights and combating voter fraud are essential to maintaining the
confidence of all Americans in our system of government.
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Through outreach and monitoring, the Department intends to maintain a
significant presence throughout the election season. We will work closely with civil
rights groups and state and local elections officials to identify and solve problems in a
timely and appropriate fashion. We will publicize telephone numbers, websites and other
means through which interested citizens can bring potential issues to our attention. The
Department, in conjunction with the Office of Personnel Management, has already
deployed hundreds of federal observers and monitors to locations around the country in
2008. We will continue our monitoring efforts on Election Day, focusing on areas where
there are potential civil rights violations and jurisdictions where we have ongoing consent
decrees. Our goal is to make sure that any complaints are dealt with promptly and
appropriately, and to make our presence felt so that the American people can continue to
have confidence in our system of government.
Second, once the November elections are over, there will be the vitally important
task of ensuring an orderly and safe transition to a new Administration. As part of that
transition, we will take every step to ensure a smooth transfer of custody and
responsibility for our Nation’s security to a new set of caretakers. One of my most
solemn duties is to turn over responsibility for running the Department of Justice to the
next Attorney General and to be able to say to him or to her that we have in place the
tools necessary to keep the country safe.
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This will be the first transition to a new Administration since September 11, 2001,
and we know that those who helped perpetrate the outrage committed against us that day,
and those who support and sympathize with their cause, will be watching for division
within our country and for opportunities to attack. In the same way that some of the
hijackers took practice flights prior to September 11th to assess airline security measures,
so too others will be evaluating the strength of our national security during the transition
to a new Administration. I am committed to making sure that, on January 20th, their
analysis will be that our system is too strong to give them reason for hope.
This commitment will take effort and focus by everyone at the Department of
Justice. Ensuring a smooth transition will require not only serious thought about the big
picture, but also a serious focus on the details that make up that big picture. We must
ensure that all of our country’s security measures are attuned to the increased risk we face
during this time of transition, and that we respond and adjust appropriately. We also
must emphasize to the Department’s employees that, although these months are a time of
great anticipation, all of their considerable talents must be focused on the task at hand.
And finally, we will have to make sure that the right personnel are in the right positions at
the right times. In short, we must focus on every task, no matter how large or how small,
if we are going to show that, although we have a two-party political system in the United
States, we are one nation. And that this Nation stands together when needed, especially
in times of transition or times of crisis.
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We are also working to complete the post-September 11th transformation of the
Department’s institutional structure. After the September 11th attacks, and on the
recommendation of two commissions that looked into the matter, the Department
undertook two major reorganizations. One was the creation of the National Security
Division, which placed within one division, and in a single chain of command, the
Department’s counterterrorism and counterespionage prosecutors and the intelligence
lawyers who represent the government before the Foreign Intelligence Surveillance
Court. The second was the establishment of the National Security Branch within the
Federal Bureau of Investigation, which was created to provide an organizational structure
to help manage the Bureau’s transformation from solely an elite law enforcement agency,
into an agency with a principal mission to detect and prevent terrorist attacks.
The National Security Division and the National Security Branch are each less
than three years old, and, as you would expect, the transformation of the Department’s
national security structure requires more than a change on an organizational chart; it
requires sustained commitment to developing the management, personnel, and processes
necessary to make these reorganizations successful. This effort is particularly important
at the Federal Bureau of Investigation, which has worked hard to become a world-class
intelligence agency. That goal involves developing new ways to recruit, train, and
provide career paths for those who wish to devote their careers in the Bureau to
intelligence collection and analysis, as opposed to the Bureau’s more traditional law
enforcement activities. The Director is committed to continuing this progress, and I have
been doing what I can to support him in this effort.
5
One project the Department has been working on is consolidating and
harmonizing the various sets of Attorney General guidelines governing the FBI’s
domestic investigative activities, so that the Bureau’s employees have clearer and more
consistent rules governing domestic investigative activity. We are not revising the
Attorney General's guidelines on the use of race, nor will we alter our traditional respect
for First Amendment activities, as reflected in our current guidelines and practices.
Moreover, these guidelines could not, and would not purport to, circumvent constitutional
limitations on the use of race, religion, or other protected classes in all manners of
investigations. At the end of the day, the FBI cannot and will not predicate an
investigation simply on the basis of race, ethnicity, or religion.
It is also important that we do everything we can to give our national security
professionals, who will be confronting the al-Qaeda threat in this Administration and the
next one, the tools they need to keep us safe. I am pleased Members of Congress came
together in a bipartisan manner to pass legislation that will ensure that our ability to
acquire foreign intelligence information using the Foreign Intelligence Surveillance Act
will keep pace with the technologies and the threats of the 21st century. The ability to
intercept and evaluate the electronic communications of our country’s enemies is the
most important defensive weapon we have, and I am pleased that the next Administration
will have the long-term tools that they will need to continue to secure the homeland. This
bill also provides that our critical relationships with private partners will continue into the
future, by providing limited retroactive immunity. For all of this, I thank the Members of
this Committee and your colleagues in the Senate.
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It would be of grave concern, however, if Congress were to provide the next
Administration with updated tools on the one hand, while with the other hand
jeopardizing that Administration’s ability to fulfill its constitutional responsibility to
safeguard classified information. I refer here to proposals to create a special statutory
privilege for journalists. Both the House and Senate versions of the Free Flow of
Information Act would endanger national security by making it nearly impossible for us
to investigate leaks of even the most sensitive national security information; by
essentially providing a roadmap for leaking classified information; by implicating core
national security tools such as the newly amended FISA; and by allowing individual
judges to decide, even in the face of a showing by the government that information from
a reporter would assist in preventing specific and articulable harm to the national
security, that an undefined benefit to public disclosure nonetheless outweighs that
showing. The Department takes very seriously the importance of the free flow of
information, as our record demonstrates. We cannot support, however, these proposed
reporters’ shields.
I would like to devote the remainder of my statement to providing updates on the
Department’s efforts and accomplishments in the last six months in the five critical areas
I identified in January 2008: national security, violent crime, civil rights, public
corruption, and immigration and border security.
7
National Security
Although I believe we have made progress in each of these areas, national
security stands apart as an area of particular focus for me. Continuing to work to
improve the effectiveness of our national security capabilities—particularly as we
approach our Nation’s first post-9/11 transition—will be one of the most important tasks
I have going forward.
Each morning, I receive a classified briefing on all of the terrorist threats our
Nation faces around the globe. These briefings are simultaneously sobering and
alarming, and the plots we hear about each day are both creative and deadly. We face an
enemy with a presence, literally, in every part of the globe; yet an enemy who, in many
places, is virtually undetectable. Because of that, it is critical that we get timely
intelligence of our adversaries’ capabilities and intentions.
The Department has had important national security successes in recent months.
For example, on June 13, 2008, a jury in the Northern District of Ohio convicted three
Ohio residents, Mohammad Amawi, Marwan El-Hindi, and Wassim Mazloum, of
conspiracy to provide material support to terrorists and conspiracy to commit terrorist
acts against Americans overseas, including U.S. soldiers in Iraq. On June 3, 2008,
another Ohio resident, Christopher Paul, pleaded guilty in the Southern District of Ohio
to conspiracy to use explosive devices against targets in the United States and Europe. At
his plea hearing, Paul admitted that he joined al-Qaeda in the early 1990s, later fought in
Afghanistan and Bosnia, and ultimately conspired with a German terror cell to bomb
8
targets in the United States and abroad. These prosecutions highlight the important role
that the material support statutes play in the Department’s effort to address terrorism and
preparation for terrorist attacks across the spectrum of threats.
In recent months, I have spent considerable time maintaining and building upon
our law enforcement and counterterrorism relationships with our overseas partners and
allies. Because these efforts are of great importance, I would like to elaborate on what
the Department has been doing in this area. In March 2008, I participated in the Justice
and Home Affairs Ministerial between officials from the European Union and the United
States. We discussed issues ranging from terrorist recruitment and radicalization, to
plans to share information to combat terrorists, to an increased focus on international
organized crime. We also discussed ways to share best practices and further benefit from
the work of our respective law enforcement and disaster response agencies, by, for
example, exchanging information on how we might respond to potential chemical or
biological attacks.
Also in March 2008, I met with German officials in Berlin for the initialing of a
bilateral agreement between Germany and the United States that permits access to
biometric data and spontaneous sharing of data about known and suspected terrorists.
This is a great achievement, both for its practical benefits and for what it symbolizes.
This agreement gives us an important new tool to combat terrorism and to fight
transnational crime. Each of our countries will have access to the criminal fingerprint
databases of the other—in the first instance simply to determine on a yes or no basis if
9
there is evidence in those databases that could be helpful in criminal investigations and
prosecutions. If such evidence is located, the agreement also sets forth procedures for
obtaining it through lawful processes that also ensure appropriate protection for personal
data. In addition, the agreement provides a mechanism for sharing information about
known and suspected terrorists, so we can prevent them from entering our countries and
attacking our people. But beyond the important practical value of this agreement, it
symbolizes the joint resolve of Germany and the United States to fight terrorism and
transnational crime.
In addition to building on established law enforcement relationships, the
Department has focused on our efforts to build the law enforcement capacity of emerging
overseas partners. Recently I was in Asia—Thailand, Indonesia, and finally in Japan,
which hosted the G8 Justice and Home Affairs Ministerial—meeting with representatives
of law enforcement and with the American officials working to maintain the cooperation
between our countries on legal matters. I had the opportunity to see first-hand the highly
successful capacity-building programs the Justice Department has underway in Indonesia.
With vital funding and programmatic and policy support from the State Department, and
with the active cooperation of State Department personnel, we have placed an
experienced U.S. federal prosecutor in Jakarta to work with the Indonesian Attorney
General’s Terrorism and Transnational Crime Task Force, and to develop a new Anti-
Corruption Task Force; and we have in place a Senior Law Enforcement Advisor, who—
with 44 staff members—leads more than a dozen law enforcement programs with the
Indonesian National Police, on topics ranging from national training reform, to forensic
10
analysis, to specialized investigative techniques for combating human trafficking,
intellectual property violations, and maritime crime.
The results of this law enforcement partnership with Indonesia have been
remarkable: among other accomplishments, the units we have worked with have secured
more than 40 convictions of terrorists, made one of the largest single seizures of
counterfeit pharmaceuticals ever, and helped secure the strategic waters surrounding
Indonesia, which were plagued by piracy and smuggling.
Indonesia is only one of more than 60 countries in which the Department of
Justice is engaged in overseas rule of law work. We are working with foreign
governments around the world to develop professional and accountable law enforcement
institutions that protect human rights, combat corruption, and reduce the threat of
transnational crime and terrorism. We do this both through the overseas work of our law
enforcement agencies – including the FBI, DEA, USMS, and ATF – and through our
specialized international prosecutorial and police development offices, the Office of
Overseas Prosecutorial Development, Assistance and Training, known by its acronym
OPDAT, and the International Criminal Investigative Training Assistance Program,
known as ICITAP.
With funding from and in coordination with the State Department, those two
programs place federal prosecutorial and police experts in host countries for long-term
assignments designed to focus on the comprehensive development of all pillars of the
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criminal justice system. Having had the chance myself to see these programs in action in
Indonesia, Iraq, Turkey, and Thailand, and having met with my counterparts from
Colombia and other countries where these programs are in place, I can tell you that this is
some of the most important work the Department does. By building the capacity of our
overseas law enforcement partners to fight terrorism and transnational crime within the
rule of law, we increase the safety not only of their citizens, but of our own as well.
When I appeared before the Senate Judiciary Committee two weeks ago, I noted
that the Executive Branch was considering how best to handle some of the significant
challenges posed by the Supreme Court's recent decision in Boumediene v. Bush, which
held that the detainees at Guantanamo Bay have a constitutional right to challenge their
detention through habeas corpus proceedings. Earlier this week, I gave a speech urging
Congress to pass legislation to address the questions left unresolved by the decision. In
my judgment, Congress and the Executive Branch are in a better position than the courts
to create practical procedures and rules to govern the habeas corpus hearings required by
the Supreme Court, procedures and rules that would both give the detainees what process
they are due and accommodate the grave national security concerns involved. In my
speech, which I have attached to my statement, I outlined six principles that I believe
should guide such legislation, and I look forward to working with you and your
colleagues on both sides of the aisle to address these important issues promptly.
12
Violent Crime
Violent crime remains near historic lows in the United States, in large part
because of the hard work of our state and local partners, but also as a result of federal,
state, and local law enforcement partnerships developed through initiatives such as
Project Safe Neighborhoods. Under Project Safe Neighborhoods, federal prosecutors and
law enforcement focus their resources on the most serious violent offenders, taking them
off the streets and placing them behind bars where they cannot re-offend.
At the end of January 2008, the Department launched the Project Safe
Neighborhoods Anti-Gang Training in Chapel Hill, North Carolina. The training
program was attended by more than 550 participants from North Carolina and South
Carolina, including law enforcement officers, prosecutors, and prevention and re-entry
representatives. The goal of the program is to increase the level of knowledge,
communication, and collaboration involved in addressing the criminal gangs preying
upon communities throughout the nation.
The training program’s courses are comprehensive and include gang-related
prevention, enforcement, prison re-entry programs, and an executive session designed for
law enforcement executives. The training assists state and local jurisdictions in the
collection, analysis, and exchange of information on gang-related demographics,
legislation, literature, research, and promising program strategies. The training helps
state and local law enforcement and criminal justice agencies learn how to recognize and
identify gang presence in a community.
13
This training will be offered regionally throughout the United States in 2008 and
2009. Besides Chapel Hill, the program has been held thus far in Nashville, Tennessee;
Oklahoma City, Oklahoma; Birmingham, Alabama; and Salt Lake City, Utah. Future
training sites include Chicago, Illinois; Spokane, Washington; Rochester, New York;
Sacramento, California; and Mesa, Arizona.
The Department is also making great strides in combating gangs with
international operations. In June 2008, a federal grand jury in Charlotte, North Carolina,
indicted 26 members of the violent gang known as MS-13 on charges of federal
racketeering and related crimes in the United States and El Salvador. The indictment
alleges, among other things, that the gang members formed a drug trafficking conspiracy,
distributed narcotics, committed robberies, illegally possessed firearms, committed acts
of violence and extortion, and intimidated witnesses and obstructed justice.
This indictment results, in part, from a series of comprehensive anti-gang
initiatives undertaken jointly by the Justice Department and national police of El
Salvador, known as the PNC. For example, last year we created a joint FBI and PNC
Transnational Anti-Gang center – the so-called “TAG” center – posting experienced anti-
gang FBI agents in El Salvador alongside PNC officers, analysts, and prosecutors to
combat transnational gang activity.
14
Supplementing the TAG center, the FBI’s Central American Fingerprint
Exchange initiative operates to assist El Salvador and other Central American countries
in identifying, tracking, and apprehending gang members. And through the International
Law Enforcement Academy in El Salvador, we have provided crucial anti-gang training
to law enforcement officers and prosecutors from El Salvador and from other countries
throughout the region.
This high-level international commitment to fighting back against transnational
gangs was also evident in the meeting I presided at two months ago in Washington, D.C.,
of the justice ministers of Central America and Mexico. Combating gangs was a
significant focus of that meeting. And following on that meeting, we are looking for
ways to expand further our partnerships and efforts throughout the region.
These international initiatives benefit from the efforts of our Criminal Division’s
Gang Squad, federal prosecutors in our U.S. Attorneys’ offices, and the FBI’s MS-13
National Gang Task Force. They also benefit from the pair of anti-gang centers that
recently opened their new joint headquarters in Virginia: the National Gang Intelligence
Center and the National Gang Targeting, Enforcement & Coordination Center, the task
force known as “GangTECC.”
The Department is also responding to the threat of international organized crime,
a hybrid criminal problem that implicates three of the Department’s national priorities:
national security, violent crime, and public corruption. It needs a coordinated response
15
and an openness to new ways of doing business. It also demands that we work closely
with our foreign colleagues in order to dismantle global criminal syndicates. In short,
this is about more than the Department of Justice. It involves our law enforcement and
non-law enforcement colleagues at the Departments of Homeland Security, State,
Treasury, and Labor, the U.S. Postal Service, as well as the intelligence community.
The Attorney General’s Organized Crime Council, which met in March 2008 for
the first time since 1993, will have a leading role in coordinating that effort. It is actively
engaged in identifying the most serious threats, and in developing strategies to combat
them. In April, I met with the Council and approved a Law Enforcement Strategy to
Combat International Organized Crime. The strategy is an important part of this
Administration’s ongoing coordinated commitment to safeguard our national security
from transnational threats. The strategy places its highest priority on those groups that
threaten our national security, the stability of our economy, and the integrity of
government institutions, infrastructure, and systems in the United States. Let me describe
the strategy, which we’ve already begun to implement; the threats we face; and some of
the recent successes we have had against international organized crime outfits.
First, we have to target the biggest organized crime threats, just as we’ve done
successfully in targeting the worst transnational drug cartels. We will develop a high-
priority list of people and organizations that pose the greatest threat, and then focus our
resources on them.
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Second, we have to marshal information from all available sources—law
enforcement, the intelligence community, foreign partners, and the private sector—so we
can identify and draw connections among the groups.
Third, we have to use every means and agency at our disposal—whether it is the
Secret Service to identify counterfeit currency, the IRS to locate financial assets, or the
Bureau of Alcohol, Tobacco, Firearms and Explosives to find contraband weapons. That
means we will be increasing the information we provide to the State Department to
support their programs to deny visas to criminals, and to the Treasury Department to
support their sanctions programs that target money laundering. It also means we will step
up what we are already doing with our international partners to get these criminals
wherever they hide. Criminals have no regard for international borders, so we’re making
sure those borders do not pose an obstacle to effective enforcement.
Fourth, we have to develop aggressive strategies for dismantling entire criminal
organizations and removing their leadership. We have more than 120 prosecutors, and
the FBI has more than 500 agents and analysts, dedicated to fighting organized crime.
These professionals are skilled in using techniques originally developed to fight La Cosa
Nostra and other domestic threats. We are going to capitalize on that expertise in our
global fight.
As I said earlier, the assessment contained in the Law Enforcement Strategy
describes the most important threats in the global battle against organized crime. The
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first threat we identified was that international organized criminals control significant
positions in the global energy and strategic materials markets. They are expanding their
holdings in these sectors, which corrupts the normal functioning of these markets and
may have a destabilizing effect on U.S. geopolitical interests. A prime example of an
international organized criminal in this area is Semion Mogilevich—also known as the
“Brainy Don”—and several members of his criminal organization whom the United
States charged in a 45-count racketeering indictment in 2003. According to published
reports, even after the indictment, Mogilevich continued to expand his criminal empire in
a new direction. He was said to exert influence over large portions of the natural gas
industry in parts of what used to be the Soviet Union. The arrest of Mogilevich by
Russian police in January 2008 is a positive sign. But we continue to monitor the growth
of organized crime and its penetration into some of these markets with great concern.
When I use the term “international organized criminal,” I do not mean to suggest
that these are only foreign citizens, or to place blame for the problem on other nations. I
am referring to the globalization of crime and to groups with members and associates
around the world, including here in the United States.
A second threat we identified was the logistical and other support that organized
crime provides to terrorists, foreign intelligence services, and foreign governments that
may be targeting the United States or otherwise acting against our interests. In March
2008, a complaint was unsealed against Viktor Bout, a notorious international arms
trafficker. Bout, who has since been indicted, is charged with conspiring to sell millions
18
of dollars worth of weapons to the Revolutionary Armed Forces of Colombia, known as
FARC – a designated foreign terrorist organization. The complaint alleges that Bout,
along with an accomplice, agreed to sell the FARC 100 surface-to-air missiles, as well as
launchers for armor-piercing rockets. Luckily, in this instance, the individuals holding
themselves out to be members of the FARC were actually confidential sources working
with the Justice Department. As this example makes clear, although these criminals are
not motivated by ideology, when the price is right, they are more than willing to help the
people who are motivated by ideology.
Another set of recent cases illustrates a third threat—from international organized
criminals who smuggle and traffic people and contraband into the country. Together,
Operation Royal Charm in New Jersey and Operation Smoking Dragon in Los Angeles
uncovered an extensive Asian criminal enterprise that was smuggling nearly every form
of contraband imaginable. These investigations resulted in the indictment of 87 people
who smuggled goods into the United States by using shipping containers with bills of
lading that falsely identified the contents as toys and furniture from China. Instead of
toys, the smugglers were bringing in millions of dollars worth of high quality counterfeit
$100 bills as well as counterfeit pharmaceuticals and cigarettes, and illicit drugs
including ecstasy and methamphetamine. Two of the defendants entered into a deal with
undercover agents to provide various weapons, including hundreds of shoulder-fired
rockets capable of shooting down airplanes.
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A fourth threat involves the ways organized crime exploits the U.S. and
international financial systems to move illicit funds. These groups are run like global
corporations; they use sophisticated financial operations. They may exploit legitimate
banking systems here and abroad to launder money, or engage in other financial crimes
like insurance fraud. And over the past several years we have seen cases where U.S.
shell companies were established and used for global money laundering schemes in
Russia, Latvia, the U.S., and other countries. The criminals operating these schemes are
willing to move money for anyone who needs to hide the source, ownership, or
destination of the funds—no questions asked. They utilize corrupt banking officials and
exploit lax anti-money-laundering protections around the world to inject illicit funds into
the global money stream. By all estimates, such schemes move billions of dollars every
year through U.S. financial institutions.
A good example is the case of Garri Grigorian, a Russian national living in the
United States who helped launder more than $130 million on behalf of the Moscow-
based Intellect Bank and its customers, through bank accounts in Sandy, Utah. Grigorian
and his co-conspirators set up three U.S. shell companies, and then set up bank accounts
for those companies in Utah and New York. The companies never did any business; they
existed only to create the illusion that transactions to and from their bank accounts were
legitimate trade. Once those accounts were set up, Intellect Bank could use them for U.S.
dollar wire transfers on behalf of their clients. In total there were more than 5,000 of
20
these wire transfers in a little more than two years. For his crimes, Grigorian was
sentenced to 51 months in prison and ordered to pay $17 million in restitution.
As we tighten up our banking regulations to fight this type of crime, criminals
have developed more complex schemes and turned increasingly to offshore jurisdictions
with less rigorous requirements, but with the same access to our banking systems.
Identifying the danger is crucial. Yet another threat is the way international organized
criminals use cyberspace to target U.S. victims and infrastructure. The internet is a boon
to organized crime—it's anonymous, largely untraceable, and can provide instant
communication for a far-flung network of crooks.
Criminals need only sit back and wait for entrepreneurs to come up with
legitimate new uses for the internet, which they can then corrupt. For instance,
technology in the past few years has created brand new avenues for money laundering
with the proliferation of so-called "virtual-world" games like Second Life, and with
mobile payment systems.
A number of recent cyber investigations in the United States—involving
everything from fraudulent eBay auctions to so-called phishing schemes responsible for
large-scale identity theft—have traced the perpetrators back to Romania, long considered
to be a main source of electronic crime. Close cooperation between the Department, the
FBI, the U.S. Secret Service, and Romanian authorities has revealed a troubling
phenomenon.
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Traditional Romanian organized crime figures—who previously were involved in
offenses like drug smuggling, human trafficking, and extortion—have joined forces with
other criminals to bring some young computer hackers under their control, and have
organized them into cells based on their cyber-crime specialty.
Fortunately, Romanian officials are taking these developments seriously, and last
November they arrested eleven of their citizens who were part of a ring that perpetrated
these phishing schemes. The criminals got personal data from computer users, imprinted
credit and debit card information onto counterfeit cards, and then used those cards to
obtain cash from ATMs and Western Union locations. Romanian police executed 21
search warrants and seized computers, card reading and writing devices, blank cards, and
other equipment.
Other threats identified in our assessment include manipulation of securities
markets; corruption of public officials, globally; and use of violence as a basis for power.
These are the hallmarks of international organized crime in the 21st century. That is what
we are up against. As you can see, organized crime has become a lot more complex and
diversified since the days of Robert Kennedy.
The Department has likewise made great strides to combat the online abuse and
exploitation of children, especially child pornography, through Project Safe Childhood
(PSC). Let there be no mistake, child pornography—an inapt term to describe images of
child sexual abuse—is a violent crime. This crime violates not just the bodies of
22
children, it takes a piece of their soul; even where the abuse has ended, the images
continue to be exchanged like trading cards among those who harbor sexual interest in
children. Through PSC, the Department has effectively marshaled federal law
enforcement and our state and local partners, with the assistance of non-governmental
organizations like the National Center for Missing and Exploited Children, to
dramatically increase the number of investigations and prosecutions.
In early May 2008, Deputy Attorney General Filip announced the distribution of
$5 million in new funds to support Project Safe Childhood. The money was used to fund
43 new Assistant U.S. Attorney positions across the nation to prosecute these offenses.
The positions were awarded on a competitive basis among the many districts with
demonstrated records of successfully prosecuting sexual crimes against children, with no
district awarded more than one new position. With these new prosecutors, we expect to
continue building on our successes in this area.
Preventing crimes against children and convicting those who commit them are not
sufficient without also managing and monitoring sex offenders in free society. Through
the Adam Walsh Act the Department has been given new authorities and responsibilities
to shore up this final piece of the effort to keep our children safe. The just-released Sex
Offender Registration and Notification Act (SORNA) guidelines, which establish a
baseline for states and tribes to maintain and share information about sex offenders, is a
giant step forward. The creation of the failure to register violation at 18 U.S.C. Section
2250, and the expanded jurisdiction of the U.S. Marshals to enforce it, likewise add to
23
public safety. We appreciate the additional resources Congress has provided to combat
this crime with more prosecutors and support for the U.S. Marshals to enforce the Adam
Walsh Act.
Civil Rights
In this very important election year, the Civil Rights Division has been vigorous
in its enforcement efforts. The Justice Department, through the Civil Rights Division,
has primary responsibility for safeguarding the voting rights of all who are entitled to
vote. Congress has given us various tools with which to do that work, and we are using
all of them. Chief among them, of course, is the Voting Rights Act of 1965, one of the
most important and most successful pieces of civil rights legislation in our country’s
history. Little more than a month ago, the Department won a major victory in court
defending the constitutionality of Congress’ 2006 reauthorization of that Act, which
remains the basis for much of our work today.
Since I last appeared before this Committee, the Civil Rights Division has settled
two important cases under Section 2 of the Voting Rights Act. In March 2008, the
Justice Department settled a lawsuit against the Georgetown County, South Carolina,
Board of Education. The complaint alleged that the at-large method of electing school
board members violated Section 2 of the Voting Rights Act of 1965 because it diluted the
voting strength of African-American voters in Georgetown County. While African-
American citizens comprise approximately 38 percent of the population of Georgetown
24
County, the current school board is all white, and no African-American candidates have
won a school board election during the last three election cycles.
Under the consent decree, in three single-member districts, African American
citizens will constitute a majority of the age-eligible population. The district lines under
the consent decree will mirror district lines for the Georgetown County Council. Under
the terms of the consent decree, all seven districts will elect a board member in
November 2008. The consent decree also requires that the chairperson of the board be
elected by the board itself, instead of the current county-wide method for electing the
board chairperson.
In April 2008, the Justice Department settled a Section 2 lawsuit against the
Osceola County, Florida, School Board. The complaint alleged that the existing districts
will result in Hispanic citizens having less opportunity than other citizens to participate in
the electoral process and to elect candidates of their choice to office. Although county
voters approved, in January 2008, a referendum changing from at-large elections to
single-member district elections, state law prevented implementation of this plan in an
even numbered year. Without this consent decree, the 2008 elections would have
proceeded under a district plan that denied Hispanic citizens the equal voting
opportunities guaranteed by the Voting Rights Act. This settlement follows a 2006
federal court ruling against Osceola County that at-large elections for electing its Board
of County Commissioners violated Section 2 of the Voting Rights Act. The federal
district court in Orlando held that the at-large election system diluted Hispanic voting
25
strength, and ordered elections to be held, beginning with a special election in 2007,
under a remedial plan of five single-member districts.
On July 2, 2008, I spoke to over 200 federal prosecutors, civil rights attorneys,
and FBI agents who took part in a two-day Ballot Access and Voter Integrity conference.
They received a copy of a memorandum that I issued in March 2008 to remind all
employees of policies regarding election-year sensitivities. I repeated the message that
politics must play no role in the decisions of investigators or prosecutors as to any
investigations or criminal charges; that law enforcement officers and prosecutors may
never select the timing of investigative steps or criminal charges for the purpose of
affecting any election; and that we must not do anything for the purpose of giving an
advantage or disadvantage to any candidate or political party. Those principles have even
more weight in decisions concerning ballot access and voter integrity, and I am confident
that all Department employees will follow them.
The Department’s successes under the Ballot Access and Voter Integrity Initiative
have been significant. For example, in late January 2008, the Civil Rights Division
reached an agreement with Tennessee officials to ensure that military service members
and other U.S. citizens living abroad would have the opportunity to participate in the
State’s federal primary election in February. The agreement established emergency
procedures for Tennessee’s presidential primary election to allow eligible military and
overseas citizens enough time to cast and return their ballots and to have their votes
counted. In February, the Department settled a lawsuit it had filed under the Help
26
America Vote Act against Bolivar County, Mississippi. The consent decree established
procedures for county officials to follow during federal elections regarding provisional
ballots. In May 2008, the Department reached an agreement with the State of Arizona to
bring the State’s Department of Economic Security into compliance with federal laws,
including the National Voter Registration Act, requiring public assistance agencies to
offer their clients the opportunity to register to vote.
For the 2008 elections, the Civil Rights Division will implement a
comprehensive Election Day program to further the goals of the Initiative. The program
is designed to help ensure ballot access, coordinating the deployment of hundreds of
federal government employees in counties, cities, and towns across the country to ensure
access to the polls as required by our nation’s civil rights laws.
The Civil Rights Division continues its enforcement in other areas as well. For
example, in April 2008, the Department obtained a guilty plea for a federal hate crime in
U.S. v. Munsen. Jeremiah Munsen drove past a group of African Americans who had
participated in a civil rights rally in Jena, Louisiana, while displaying two hangman’s
nooses from the back of his pickup truck. The Department also recently obtained a
conviction in U.S. v. Milbourn against a defendant for his role in burning an eight-foot-
tall cross in the yard of the victim’s home because the victim has three bi-racial children.
In June 2008, the defendant was sentenced to 121 months in prison. Since Fiscal Year
2001, the Department of Justice has charged 65 defendants in 44 cross-burning cases.
27
The Department’s enforcement efforts in human trafficking remain strong. In the
last seven years, the Department of Justice has increased, by nearly seven-fold, the
number of human trafficking cases filed in court as compared to the previous seven fiscal
years. In Fiscal Year 2007, the Department obtained a record number of convictions in
human trafficking prosecutions, whose victims were predominately women and
minorities.
The Civil Rights Division’s Housing and Civil Enforcement Section is charged
with ensuring nondiscriminatory access to housing, credit, and public accommodations.
The Section has continued to pursue Operation Home Sweet Home, an initiative that was
launched two years ago to combat hidden forms of discrimination in housing. As part of
the initiative, we committed additional resources to our fair testing program and
enhanced our targeting. In Fiscal Year 2007, we conducted more than 500 paired tests,
exceeding by more than 20 percent the highest number of tests conducted in any previous
year since the program’s inception. The testing program also is producing new cases.
We are currently litigating a case alleging a pattern or practice of discrimination against
African Americans in Roseville, Michigan. Another case on behalf of African Americans
based on testing evidence is in pre-suit negotiations. In addition, during Fiscal Year
2007, Operation Home Sweet Home resulted in the first pattern or practice discrimination
case ever brought by the Civil Rights Division on behalf of Asian Americans based on
evidence from our testing program. That case, United States v. Pine Properties (D.
Mass.), was settled in January 2008, with the defendants agreeing to pay up to $158,000
28
in monetary relief. Operation Home Sweet Home also has resulted in pattern or practice
discrimination cases on behalf of families with children and guide-dog users.
In addition, in May 2008, the court in United States v. Henry (E.D. Va.), entered a
consent order requiring the landlord of a subsidized housing complex to pay up to
$361,000 to settle the Division’s lawsuit alleging that the defendant imposed more
restrictive rules and regulations on African-American tenants than on other tenants;
verbally harassed African-American tenants with racial slurs and epithets; and evicted
tenants by enforcing a limit of two children per family. We currently are litigating
several other pattern or practice cases involving race and national origin discrimination.
The Americans with Disabilities Act (ADA) is a landmark law that protects the
civil rights of the more than 50 million persons with disabilities and was intended to
provide individuals’ “equality of opportunity, full participation, independent living, and
economic self-sufficiency.” The Civil Rights Division’s Disability Rights Section (DRS)
protects the rights of persons with disabilities under Titles I, II, and III of the ADA. Two
recent settlement agreements obtained by the Section illustrate some of its wide-ranging
ADA enforcement efforts.
On March 10, 2008, a federal court in Michigan entered a consent decree
resolving a lawsuit that the Justice Department and the Michigan Paralyzed Veterans of
America filed against the University of Michigan. The lawsuit was brought to challenge
the lack of accessible seating in the University’s football stadium. Under the settlement,
the University will add a minimum of 248 permanent wheelchair seats and 248
29
companion seats to the stadium during the next two years. The majority of these seats
will be along the sidelines. Currently, the stadium has 81 pairs of wheelchair and
companion seats, all located in the end zones. By the 2010 football season, the
University will have at least 329 pairs of wheelchair and companion seats dispersed
throughout the stadium.
Additionally, the Justice Department and the International Spy Museum recently
reached a settlement agreement under the ADA. As a result of this precedent-setting
agreement, which was announced on June 3, 2008, the museum agreed to work to bring
the content of its exhibitions, public programs, and other offerings into full compliance
with ADA requirements so that its exhibits are accessible and effectively communicated
to individuals with disabilities, including individuals with hearing and vision
impairments. By focusing on visitors who are blind or have low vision and who are deaf
or hard of hearing, the agreement establishes a new level of access for cultural and
informal educational settings. Of the 50 million Americans with disabilities, 16 million
have sensory disabilities. The agreement seeks to ensure these individuals will have
access to the museum’s exhibitions, audiovisual presentations, and programs, as required
by law.
The Department recently reached a settlement with New Century Travel, Inc.,
enforcing the ADA’s requirement that over-the-road discount bus service be accessible
for persons with disabilities. This is the first settlement agreement secured between the
Department and a low cost, fixed route carrier. Among other things, the agreement
30
provides that persons who use wheelchairs can schedule rides on buses equipped with a
wheelchair lift with 48 hours advance notice to New Century.
In addition to the Division’s robust ADA enforcement efforts, the Department
also recently announced that it is soliciting comment on proposed amendments to its
regulations implementing Titles II and III of the ADA. The proposed regulations will, for
the first time, establish specific requirements for the design of accessible public facilities
such as courtrooms and an array of recreation facilities including playgrounds, swimming
pools, amusement parks, and golf courses, making it easier for individuals with
disabilities to travel, enjoy sports and leisure activities, play, and otherwise participate in
society.
The proposed amendments are intended to implement standards consistent with
revised guidelines published by the Architectural and Transportation Barriers
Compliance Board (Access Board) and to adopt changes necessary to address issues that
have arisen since the publication of the original regulations in 1991. The amendments,
which represent more than 10 years of collaborative efforts among disability groups, the
design and construction industry, state and local government entities, and building code
organizations, also are intended to provide greater consistency between the ADA
Standards and other federal and state accessibility requirements.
The Civil Rights Division’s Special Litigation Section also protects the
constitutional rights of persons with disabilities. Under Civil Rights of Institutionalized
31
Persons Act (CRIPA), the Department investigates conditions in public residential
facilities and takes appropriate action if a pattern or practice of unlawful conditions
deprives persons confined in the facilities of their constitutional or federal statutory
rights. The Department’s commitment to the enforcement of CRIPA is evidenced by the
76 investigations, 61 findings letters, 26 cases filed, and 58 substantial agreements filed
from 2001 through 2007.
The Department and the State of Nebraska recently reached a settlement in a
CRIPA case that protects the civil rights of the residents of a state owned and operated
nursing home. Nebraska has agreed to ensure that the almost 300 individuals who reside
at the Beatrice State Development Center will be safe and receive the care and services
necessary to meet their individualized needs. Specifically, Nebraska has agreed to
undertake a variety of measures, such as: providing a safe and humane environment with
zero tolerance for resident abuse or neglect; providing adequate medical care, nursing
services, and psychiatric care; and ensuring that residents are free from undue bodily
restraint. Nebraska will also ensure that each resident is served in the most integrated
setting pursuant to the ADA.
The Civil Rights Division also remains diligent in combating employment
discrimination, one of the Division’s longest-standing obligations. Title VII of the Civil
Rights Act of 1964, as amended, prohibits employment discrimination on the basis of
race, color, religion, sex, or national origin. Most allegations of employment
discrimination are made against private employers. Those claims are investigated and
32
potentially litigated by the Equal Employment Opportunity Commission (EEOC).
However, the Civil Rights Division’s Employment Litigation Section is responsible for
one vital aspect of Title VII enforcement: discrimination by public employers. The
Department continues to litigate United States v. City of New York, which alleges that,
since 1999, the City of New York has engaged in a pattern or practice of discrimination
against black and Hispanic applicants for the position of entry-level firefighter in the Fire
Department of the City of New York in violation of Title VII.
In June 2008, the Justice Department also announced the filing of a lawsuit
against the city of Jackson, Alabama, alleging that the city violated Title VII when it
discharged Virginia Savage, an African American, from her employment as a circulation
clerk at the city’s municipal library in retaliation for her complaints of racial
discrimination and harassment by her supervisors.
Public Corruption
The investigation and prosecution of public corruption is among the highest
obligations of law enforcement, and I consider it to be one of the top priorities of the
Department of Justice. The Department’s career prosecutors and criminal investigators
are engaged in a renewed effort to pursue corruption at all levels and in all branches of
government. The Department’s achievements during the past year in this area show a
steady commitment to fighting public corruption wherever it is found and on a non-
partisan basis.
33
The Department’s recent public corruption investigations have resulted in
convictions of federal officials in all branches of government, as well as numerous state
and local officials. At the federal level, in February, defense contractor Brent Wilkes was
sentenced to 12 years in prison for his involvement in what the Washington Post called
“the most brazen bribery conspiracy in modern congressional history.” Wilkes funneled
cash, mortgage payments, cars, meals, luxury travel, and prostitutes to former
Congressman Randall “Duke” Cunningham in return for the Congressman’s assistance in
steering contracts to Wilkes’s company.
In March 2008, the Department obtained the seventh criminal conviction arising
out of an ongoing investigation into public corruption among state officials in Alaska.
The convictions have included three former elected members of the Alaska State House
of Representatives (including a former speaker of the house), a chief of staff to a former
governor, and three high-ranking executives with a major Alaska oil-services company.
The convicted individuals made or received thousands of dollars in corrupt payments as
well as offers of employment in return for official actions—including votes in the
legislature—that would benefit the company.
The Department, through its National Procurement Fraud Task Force, continues
to devote significant attention to procurement and other corruption within the Iraq and
Afghanistan war theaters and related support efforts. For example, in April 2008, an
indictment by a federal grand jury in San Francisco was unsealed against a Canadian
night vision goggles manufacturing firm and two of its executives for their participation
34
in a scheme to defraud the U.S. military in the supply of equipment for the Iraqi army. In
June 2008, a U.S. Army officer and his wife pleaded guilty for their participation in a
conspiracy, bribery, and money laundering scheme involving contracts awarded in
support of the Iraq war. Additionally, a retired U.S. Army colonel pleaded guilty in June
for her role in a scheme designed to secure a U.S. Department of Defense contract at
Camp Victory, Iraq, in 2004 and 2005. Also in June 2008, a defense contractor, Raman
International, pleaded guilty for its role in a bribery scheme designed to influence the
award of U.S. Department of Defense contracts at Camp Victory, Iraq.
Immigration and the Southwest Border
Enforcing the Nation’s immigration laws remains an important priority for the
Department. The ability to control who—and what—comes into and out of a country is a
basic attribute of a sovereign government, and being able to do that is vital to our
Nation’s security.
In April, Deputy Attorney General Filip visited the borders of Arizona and Texas
to meet with federal law enforcement officials who are on the front lines protecting our
border. At that time, he announced the distribution of $7 million appropriated by
Congress for the five border districts, to support security and immigration enforcement
efforts. This money will fund 64 new Assistant U.S. Attorneys and 35 new contract
support positions for the districts.
35
In an effort to make the most of those dollars, we have asked U.S. Attorneys who
serve in the border districts to work with their law enforcement partners in the
Departments of Justice and Homeland Security to strategically attack criminal activity
along the border.
These are targeted resources, requested by each district, and they are emblematic
of the Department’s comprehensive but flexible strategy. There is no one-size-fits-all
solution to the problems on the border—what works in one district or sector may not
work in another. Law enforcement professionals in the border districts are the experts
who know their areas and know what will work best there.
For the District of Arizona, that means an allocation of 21 new Assistant U.S.
Attorneys and about a dozen additional support positions. That is a significant increase
from the current 133 Assistant U.S. Attorneys in the district. For the Southern District of
Texas, that means an allocation of 13 new Assistant U.S. Attorneys and seven additional
support positions. That is a substantial increase from the current 150 Assistant U.S.
Attorneys in the district. The Western District of Texas will also receive 16 new
Assistant U.S. Attorney positions for work there. These new prosecutors will handle
cases like drug and gun smuggling, illegal entry and reentry, worksite enforcement, and
false documents.
36
In addition to these funds, which are available immediately and for the next two
years, the Department has requested in its Fiscal Year 2009 budget another $100 million
to help fight criminal activity along the border as part of our Southwest Border
Enforcement Initiative.
The Department of Justice and these U.S. Attorney’s Offices have always pursued
large-scale drug smugglers on the border, along with smaller cases involving repeat
offenders and other serious violators. We remain committed to that effort. This new
money, and the positions it will fund, means that we will be able to prosecute even more
cases than before, targeting smugglers both large and small.
* * *
Because of the abbreviated congressional calendar this year, today’s oversight
hearing is likely the last time I will appear before the House Judiciary Committee.
Throughout my tenure as Attorney General, I have appreciated the courtesies, both
professional and personal, that I have received from various members of this Committee
and from the House as a whole. Although we have not always agreed on the issues, and
in some instances we have disagreed vigorously, I want each of you to know that I have
the utmost respect for the role you play in our constitutional system of government.
Thank you for the opportunity to appear before you to talk about the important work of
the Department, and I appreciate the opportunity to answer any questions you may have.
37

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Table of Contents…………………………………………………………………………………………………………………. Page 2

U.S. Marshals Service False Statements & Obstruction Documents…………………………………………….. Pages 3 - 50

Subpart E–4—Office of the Inspector General………………………………………………………………………….. Pages 51 - 52

 § 0.29c Reporting allegations of employee misconduct

FOIA Violations……………………………………………………………………………………………………………………. Pages 53 - 64

 Sec. 16.10 Preservation of records

Chief Deputy U.S. Marshal (INA) Matthew F. Fogg……………………………………………………………………. Pages 66 - 71

 Title VII Verdict

 Perjury Under Federal Law: A Brief Overview

 Obstruction of Justice: An Abridged Overview of Related Federal Criminal Laws

I submitted legitimate allegations of illegal electronic surveillance of myself possibly being

TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1809

(a) Prohibited activities

(d) Federal jurisdiction

TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1810

TITLE 18 > PART I > CHAPTER 19 > § 371

TITLE 5 > PART I > CHAPTER 7 > § 706

TITLE 18 > Part I > CHAPTER 47 > § 1001

TITLE 18 > PART I > CHAPTER 73 > § 1510

TITLE 18 > PART I > CHAPTER 73 > § 1515

TITLE 18 > PART I > CHAPTER 73 > § 1519

TITLE 28 > PART IV > CHAPTER 85 > § 1361

TITLE 18 > PART I > CHAPTER 1 > § 4

Regardless of whether a misconduct allegation is substantiated and regardless of whether discipline is

TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1810

 1. Yvonne Bonner Investigation  2. Yvonne Bonner Investigation

USDOJ AG Order No. 2835-2006

All of my supporting documents can be downloaded immediately from http://daprocess.com from

Mr. Robert A. Reynolds

U.S. Marshals Service Ethics and Integrity

The U. S. Marshals Service is committed to the highest standards of ethical behavior as a

Gerald M. Auerbach, General Counsel

Ethics Officer: Robert Marcovici, Associate General Counsel

Mr. Robert Reynolds

Dear Mr. Reynolds:

Office ofCongressional Affairs

The Honorable Charles E. Schumer

Dear Senator Schumer:

This is in response to your recent letter to William E. Moschella, Assistant Attorney

John J. McNulty ill

September 19, 2005

Mr. Robert Reynolds

Dear Mr. Reynolds:

Office of Congressional Af f airs

December 27, 2005

The Honorable Charles E. Schumer

Dear Senator Schumer:

John 1. McNulty III

ILLIN OIS ENVIRONMENT AND

tinitro ~tatf5 ~fnatf VETERAN S' AFFAIRS

New York , New York

Director of Constituent Services

Office of U.S. Senator Barack Obama

230 S. Dearborn S1., Suite 3900

Office a/Congressional Affairs

The Honorable Charles B. Rangel

Dear Congressman Rangel:

This is in response to your letter on behalf of Mr. Robert Re ynolds to former

I hope this information is helpful in responding to Mr. Reynolds.

COMMIlTEE: DISTRICT OFFICE:

Inspector General Glenn A. Fine

Re: Concern of Robert Reynolds