The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases (April,1997) Office of the Inspector General, Department of Justice

SECTION H12: TOBIN ALLEGATIONS

This section discusses certain issues that William Tobin, a metallurgist now working in the Materials Analysis Unit (MAU), has brought to the attention of the OIG. Tobin has identified cases in which he believes other examiners, primarily in the Explosives Unit (EU), have incorrectly conducted or reported metals-related examinations. He also contends that SA Michael Malone, a former examiner in the Hairs and Fibers Unit (HFU), testified inaccurately and outside his expertise in a 1985 hearing related to the impeachment of United States District Judge Alcee Hastings.

To investigate these matters, we interviewed Tobin and several others, including: Dennis Aiken, Roger Avery, Alan Baron, John Doar, Michael Ennis, Christopher Fiedler, Bruce Hall, Michael Hahn, Congressman Alcee Hastings, John Hicks, Michael Malone, AUSA Frederick Martin, Thomas Mohnal, Kenneth Nimmich, Robert Sibert, Alan Robillard, J. Thomas Thurman, and Chief Judge Gerald Tjoflat of the United States Court of Appeals for the Eleventh Circuit. We also reviewed pertinent documents from the Alcee Hastings case and other cases.

Based on our investigation, we conclude that the Laboratory would benefit from a clear delineation of responsibilities between units with respect to metals-related examinations, better communication among examiners in this area, and recognition that differences among examiners should be resolved on a scientific basis. We also conclude that the EU should take steps to assure that its examiners properly conduct and report their examinations of wires or other metals-related evidence.

In the Alcee Hastings case, we find that Michael Malone falsely testified that he had himself performed a tensile test on a purse strap and also testified inaccurately and outside his expertise concerning the test results. The misstatements concerning the test results, Tobin acknowledged, did not affect the conclusion that the strap had been partially cut. After Tobin raised concerns about Malone's testimony in 1989, then-SAS Chief Kenneth Nimmich failed to assure that the serious allegations of examiner misconduct were appropriately investigated and addressed.

Tobin identified one general area and two specific cases in which he thought metals-related examinations had been incorrectly performed or reported: (1) in reports prepared by EU examiners regarding the gauge of wire; (2) in a report in the La Familia case indicating that holes had been drilled into metal pipes; and (3) a suggestion in the Mauchlin case that a handgun barrel was made from Swedish steel. We address each of these matters in turn.

Tobin contends that EU examiners have themselves conducted certain examinations that would be better performed by qualified metallurgists and in some instances the EU examiners have reported their examinations incorrectly. He specifically identified the measurement of wire gauge as an example. To illustrate his point, Tobin noted that in an August 1995 report issued by EU examiner Thomas Mohnal in the UNABOM case, the following dictation appears:

In Tobin's view, this report incorrectly states the gauge of the wire because it describes the gauge of individual strands of a multi-strand wire. Tobin observed that, consistent with industry standards, a multi-strand wire should be gauged based on the total cross-sectional area of its separate strands. Because the report did not describe the wire in this way, Tobin voiced concern that field agents or other readers might misinterpret the report as indicating that 30-gauge wire was found in the examined specimens.

After the August 1995 report was issued, Tobin met with EU Chief J. Thomas Thurman and acting MAU Chief Christopher Fiedler to discuss Tobin's concerns about how the EU was measuring and reporting the gauge of wire. During the meeting, Thurman agreed that Tobin would instruct EU examiners how properly to gauge wire and to conduct certain other metals-related examinations. In September 1996, however, the EU still had not obtained this training. Tobin advised the OIG that Thurman had not yet asked Tobin to provide it. Thurman told the OIG that he had told Tobin he would set up the training whenever Tobin wanted to do it; Thurman further said he was not concerned that the EU was perhaps misgauging wire.

With respect to the wire gauging issue, we draw several conclusions. The measurement of wire gauge is, in our view, something that appropriately-trained EU examiners can perform themselves without involving a metallurgist. Thurman as the EU chief should have taken more seriously Tobin's concern that EU examiners were not measuring or reporting the wire gauge in accord with industry standards. Where a multi-strand wire is involved, its gauge should be measured and reported based on the total cross-sectional area of its strands. Of course, following the industry standard for describing the wire would not preclude an examiner, as in the quoted report from the UNABOM case, from also supplying additional information describing the size and other characteristics of individual strands.

In the La Familia case, Tobin, who worked on the case, thought that the EU and the Firearms and Toolmarks Unit (FTU) in 1996 reported the results of metals-related examinations in a misleading or incorrect manner. After he reviewed a report containing certain statements with which he disagreed, Tobin prepared dictation describing his own opinions without first talking to explosives examiner Thomas Mohnal, who was the principal examiner (PE). Tobin's action led to further controversy because Mohnal and EU Chief Thurman accused Tobin of improperly attempting to discredit the EU and FTU. We conclude that the Laboratory personnel, including Tobin, should have communicated better among themselves and focused on the pertinent scientific knowledge in attempting to resolve any differences.

The Laboratory was asked in this case to determine if certain evidence met the definition of an explosive device or was used in the construction of pipe bombs. The submitted evidence included a pipe nipple with two end caps, collectively identified as Q1; another pipe nipple with an end cap and an end plug, collectively identified as K1; and a drill and drill bit. Each of the pipe nipples had a hole in the center of the pipe shaft.

As the PE, Thomas Mohnal sent the evidence to Tobin to determine if there were metal filings on the drill bit that matched the pipe. Mohnal also sent the evidence to the FTU to determine if the holes had been drilled with the bit. On February 9, 1996, Mohnal issued a partial report. Because Tobin had not completed his dictation, this report stated that [t]he Metallurgy examinations are continuing and you will be advised of the results of these examinations upon their completion.

In the February 9 report under the heading Pipe Nipple/End Caps, Mohnal described specimens Q1 and K1. The report stated that Q1 was a 6-inch length of black-coated steel pipe having a nominal pipe size diameter of 3/4 inch. Mohnal noted that a hole measuring approximately 0.118 inches in diameter had been drilled in approximately the center of the pipe nipple. He also noted that the pipe nipple had the word MEXICO stamped in manufacturer's lettering, that two nominal size 3/4 inch steel end caps were present, and that one of the caps was stamped on the top with the words 3.4 Q CHINA in manufacturer's lettering. Describing specimen K1, the report noted that the diameter of the pipe was the same as Q1, that the stamped lettering on the pipe also bore the word MEXICO, and that the end cap from K1 was found to be the same nominal size as the end caps from Q1 and had the lettering 3.4 Q CHINA.

In a separate section, the February 9 report also described the results of toolmark examinations performed in the FTU:

Shortly after the February 9 report was issued, Tobin sent Mohnal dictation reporting that no material consistent with specimens Q1 and K1 was found on the K4 drill and drill bit. Tobin says he only subsequently saw the February 9 report, and he then read Mohnal's description of the pipes but not the section describing the results of the toolmark examinations. Tobin concluded that the report incorrectly suggested that the pipes in specimens Q1 and K1 were identical and also incorrectly used the term nominal pipe size in describing the evidence, because nominal pipe size indicates that the pipe wall meets certain American Iron and Steel Institute (AISI) standards. Tobin also was concerned by the statement that holes had been drilled in the pipe nipples, because he had not found characteristics indicating the holes were drilled.

Without first discussing his concerns with Mohnal, Tobin recalled his earlier dictation and prepared new dictation dated February 13, 1996. That dictation stated:

When he received Tobin's February 13, 1996, dictation, Mohnal said he was immediately angered by the fact that Tobin had issued the findings without consulting him. Mohnal said that he thought that Tobin was deliberately attempting to embarrass the EU and FTU and to hurt the case. In Mohnal's view, Tobin had been asked to answer a very limited question and he had done so by his dictation stating that no material consistent with specimens Q1 and K1 was detected adhering to the K4 drill and drill bit. Mohnal also stated that his February 9, 1996, report was not intended to compare the K1 and Q1 specimens to determine if they were identical, as that was not a pertinent issue, and the language in the Pipe nipple/end cap section was meant to be merely descriptive.

After Mohnal's unit chief, J. Thomas Thurman, learned that Tobin had prepared the revised dictation, Thurman also concluded that Tobin had improperly commented on matters he had not been asked to address. Thurman told the OIG that he did not take issue with Tobin raising issues, but Thurman thought it was improper for Tobin to issue the revised dictation without even talking to the other examiners involved.

Sometime after February 13, 1996, Tobin met with his acting unit chief, Christopher Fiedler, and Thurman to further discuss the dictation. As a result of this meeting, Tobin issued yet another revised dictation with additional language stating that the metallurgical differences would not likely be detected by other than a metallurgist or other individual knowledgeable of pipe fabrication techniques, and they do not alter the efficacy of the apparent intended product. Tobin told the OIG he agreed to this language to appease the EU. Thurman said that while he still thought Tobin should not have issued his February 13 dictation and it should have been withdrawn, Thurman agreed to the compromise dictation because Mohnal said he could live with it.

After preparing his February 13 dictation, Tobin realized that it also conflicted with the toolmark conclusions described in the February 9, 1996, report. Those conclusions, which were based on the work of examiner Michael Ennis, stated that the pipes in Q1 and K1 bear toolmarks (holes) typical of those produced by a drilling-type action. Tobin approached Ennis to attempt to reach agreement on further revised language.

Tobin met with Ennis and then prepared a dictation dated February 27, 1996, which stated:

Although Tobin and Ennis agreed on Tobin's revised dictation, they evidently misunderstood each other as to its implications for the conclusions Ennis earlier had reached. Ennis told the OIG that he understood that Tobin had examined only the top of the holes in the pipes, while Ennis had examined the inside of the holes and observed characteristics such as spiraling that he thought were indicative of drilling. Ennis said this allowed him to reconcile his earlier dictation with Tobin's February 27 dictation. Tobin told us his February 27 dictation on its face contradicted the dictation Ennis had prepared and that he did not think that spiraling was significant with regard to whether the holes had been drilled. Tobin told the OIG that he had probably not told Ennis these things because Tobin did not want to embarrass him.

After Tobin and Ennis met, there was a separate meeting among EU Chief Thurman, FTU Chief Sibert, and Bruce Hall, who by then was serving as the MAU chief. Hall concluded from this meeting that Tobin should have discussed his concerns with the FTU and the EU examiners before issuing his February 13, 1996, dictation. Hall also thought that Tobin had acted out of frustration after concluding that Mohnal and Ennis had incorrectly performed examinations that should have been done by a metallurgist. Hall observed that the problem reflected a lack of communication that could have been avoided if the units had collaborated. In addition, Hall recalled suggesting that a metallurgist provide training to EU examiners to try to improve communication, but this idea apparently was not implemented.

The La Familia investigation resulted in the trial of defendant Charles Nunez in federal court in Springfield, Massachusetts in July 1996. Nunez was convicted on charges related to the unlawful possession of pipe bombs. Thomas Mohnal testified at the trial that a particular device was a pipe bomb, and Steven Burmeister testified about the Laboratory's identification of certain powder. Neither Ennis nor Tobin testified at the trial.

We have several conclusions concerning the La Familia case. When Tobin saw what he thought were incorrect or misleading statements in the February 9, 1996, report, he was correct to raise the issue. He should, however, have talked with Mohnal before issuing his own February 13 dictation. As a general matter, we think that examiners should first discuss issues informally among themselves if there appears to be a difference of opinion in interpreting data or reporting conclusions. Had Tobin attempted such informal communication here, it might have avoided both much of the controversy and the need for Tobin to further revise his dictation. We find unpersuasive Tobin's explanation that he prepared his dictation as he did because he knew from past experience that Mohnal would ignore his concerns.

We also find that Tobin and Ennis did not take appropriate steps to resolve their differences concerning whether the evidence indicated that holes had been drilled in the pipe nipples. Although Tobin and Ennis agreed to a further revision of Tobin's dictation, Tobin did not think the evidence showed characteristics of drilling. Ennis in contrast thought he and Tobin had agreed their conclusions could be reconciled. That Ennis and Tobin talked about their differences was laudable. They should, however, have addressed more directly the bases for and the possible inconsistencies in their respective conclusions. If they were unable themselves to reach agreement based on the data and analyses performed, they should have involved their unit chiefs further.

Both Thurman and Mohnal seemed to be concerned more about Tobin's motives or manner in issuing the February 13 dictation than about the merits of the points he raised. As a unit chief, Thurman should have assured that any differences of opinion among the examiners were resolved on a scientific basis. Rather than do so, Thurman appeared to be chiefly concerned with defending the report issued by EU examiner Mohnal and attempting to persuade others that Tobin's February 13 dictation should be withdrawn.

More generally, we think the La Familia case and the issue concerning the measurement of wire gauge show that the Laboratory would benefit from a clear delineation of the respective responsibilities of its metallurgists and other examiners in conducting metals-related examinations. Based on our interview of SAS Chief Randall Murch, we understand that the Laboratory will attempt to develop guidelines in this area. We also understand that the Laboratory intends to establish a Science Resolution Board which will serve as a forum for the airing of disagreements over scientific issues. Such a board could serve a useful purpose, but we would hope that issues like those presented in the La Familia case could generally be resolved by direct, informal discussions among the examiners involved.

Tobin has expressed concerns that in this case, in which he conducted metallurgical examinations, the prosecutor and the case agent were incorrectly told that a gun barrel was made from Swedish steel. Although the case agent recalls hearing something about high quality Swedish or stainless steel, we did not identify anyone in the Laboratory who reported incorrect information in this regard.

According to Tobin, he met with AUSA Frederick Martin before the trial to discuss Tobin's anticipated testimony. Tobin recalls that Martin asked him several questions about the nature and origin of metal in a particular gun barrel. Tobin responded that he did not know. When Martin asked why he did not know the answers, Tobin recalls explaining that he had not been asked to examine the gun barrel. Tobin says that Martin then asked what indicated that the gun barrel was made from Swedish steel and said that they had been looking all over for Swedish steel.

Subsequently, Tobin concluded that a remark he had made to EU examiner Thomas Mohnal may have been incorrectly communicated to the case agent. Tobin recalled that before the trial, Mohnal had approached him waving some evidence and said what is this stuff? I don't want a complete exam. Look, I just want your opinion what it is. Tobin said he told Mohnal that he would first need to hold the evidence. According to Tobin, Mohnal replied, Well, look, I just want to know what to put in my notes just for an inventory kind of thing. Tobin stated that Mohnal continued to push him for an answer and Tobin responded, Tom, for all I know, it's high quality Swedish steel. I don't know. Tobin speculated that as result of this comment, the case agent was mistakenly told the barrel was Swedish steel.

AUSA Martin did not recall a conversation about Swedish steel in his pretrial interview with Tobin. Martin said that the case agent, Michael Hahn, was present at the interview and mentioned that the metal used was high-quality, but Martin did not recall Hahn saying it was Swedish. Hahn told the OIG that he recalled something about high quality Swedish or stainless steel, although Hahn could not remember how he received this information.

J. Thomas Thurman was the PE on this case. Thurman told the OIG that the submitting agency had not asked for an analysis of the gun barrel and he did not otherwise see any need for Tobin to analyze it. Both Thurman and Mohnal denied ever telling anyone that the gun barrel was Swedish steel. We could not identify the source of the information regarding Swedish steel that case agent Michael Hahn seems to recall.

Tobin alleges that, in 1985, former Hairs and Fibers Unit (HFU) examiner Michael Malone testified falsely and outside his expertise before a judicial committee that was investigating misconduct by Alcee Hastings, who then was a United States District Judge for the Southern District of Florida. As set forth below, we conclude that Malone falsely testified that he had himself performed a tensile test on a purse strap and he also testified outside his expertise and inaccurately concerning the test results. These misstatements, Tobin acknowledged, did not affect the conclusion that the strap had been partially cut. We also find that after Tobin raised concerns about Malone's testimony in 1989, then-SAS Chief Kenneth Nimmich failed to assure that the serious allegations of examiner misconduct were appropriately investigated and addressed.

In 1989, Hastings was impeached and removed from his judicial office based on his involvement in a bribery scheme and related misconduct. Our investigation focused on Tobin's allegations concerning Malone's testimony; we did not otherwise review or evaluate actions by the FBI or others related to the impeachment of Hastings.

To place Malone's 1985 testimony into context, it is necessary to briefly summarize the events leading to the charges that Hastings had been involved in a bribery scheme. As a federal judge, Hastings had presided over the trial of Frank Romano and Thomas Romano, who were convicted in Miami in December 1980 on twenty-one counts of racketeering. In May 1981, Hastings ordered the forfeiture of $1.2 million of the Romanos' property; in July 1981, he sentenced each of the Romanos to a three-year prison term. In late July 1981, a person named William Dredge told federal prosecutors in Miami that he had been directed by William Borders, a Washington, D.C. attorney and long-time friend of Hastings, to solicit a $150,000 bribe from the Romanos in exchange for their sentences being reduced to probation. Dredge was a former client of Borders, had a criminal record, and was then facing federal criminal charges himself.

After corroborating certain statements made by Dredge, the Government decided to enlist his cooperation. On September 12, 1981, Dredge introduced Borders to a retired FBI agent named Paul Rico who was posing as Frank Romano. Borders told Rico that in exchange for $150,000 an order would be signed returning a substantial amount of the property and the Romanos would receive mitigated jail sentences. To demonstrate his influence with Hastings, Borders also told Rico that the judge would appear at a time and place selected by Borders and Rico. They agreed that Hastings would appear at the dining room of the Fontainebleau Hotel in Miami at 8:00 p.m. on September 16, 1981. Borders and Rico also agreed to meet again on September 19, 1981, for an up front payment on the bribery deal. On the evening of September 12 and the morning of September 13, 1981, Borders and Hastings were together in Washington, D.C.

Shortly before 8:00 p.m. on September 16, 1981, Hastings and a female companion entered the dining room of the Fontainebleau Hotel, where they ate dinner. On September 19, 1981, Rico paid Borders $25,000 as up front money. On October 2, 1981, Rico contacted Borders asking about the status of the forfeiture order. In a telephone conversation on October 5, 1981, Borders told Rico the matter had been taken care of and that the order would be mailed out that day or the next. Less than one hour later, Hastings telephoned Borders. During their brief conversation, Hastings said, I've drafted those, ah, ah, letters for Hemp. . . . Borders later said, I talked to him and he wrote some things down for me. Hastings said he understood, and Borders stated, And then I was supposed to go back and get some more things. Hastings told Borders, I'll send the stuff off to Columbia in the morning. The next day, Hastings issued an order reversing in part his original $1.2 million forfeiture order and returning over $845,000 in property to the Romanos.

On October 7, Borders told Rico that the order had been issued the previous day. Rico agreed to meet Borders in Washington on October 9 for the final payoff. That same evening, a testimonial dinner was to be held in Washington to honor Borders, a past president of the National Bar Association. On Thursday, October 8, Hastings called Borders and told him he would arrive in Washington the next morning. On the morning of October 9, Borders picked Hastings up at the airport and took him to a hotel, where they had adjacent rooms; shortly thereafter Hastings went with Borders to the latter's law office. While at his office, Borders returned a call from Rico; Rico told Borders he had brought all the necessary papers and they agreed to meet at once at Rico's hotel. Borders went by himself to Rico's hotel. Hastings left Borders' office, made a few stops, and then returned to his own hotel.

Borders met Rico at his hotel and told him to get it because he wanted to take a ride. Rico got into Borders' car and placed a bag containing $125,000 between them. FBI agents stopped and arrested Borders when he started to drive out of the hotel parking lot. That afternoon, Hastings learned that the FBI wanted to interview him and that Borders had been arrested. Rather than contacting the FBI in Washington, Hastings made an unplanned and hurried departure for Miami, where he was interviewed by FBI agents later that evening. Hastings denied any involvement with Borders in a bribery scheme.

On December 19, 1981, Hastings and Borders were indicted on federal charges of conspiracy and obstruction of justice. Borders was also charged with two counts of interstate travel with the intent to commit bribery. The proceedings against Borders were transferred to the Northern District of Georgia, where a jury convicted him on all counts in March 1982. The Court of Appeals for the Eleventh Circuit affirmed the conviction in December 1982. Hastings was tried in Miami in January 1983. He testified that he did not participate in the bribery scheme and had been taken advantage of by Borders. On February 4, 1983, the jury acquitted Hastings.

In March 1983, two district court judges filed a complaint with the Judicial Council of the Eleventh Circuit against Hastings based on his involvement in the bribery related to the Romano case and certain other conduct. To investigate the complaint, on March 29, 1983, Chief Judge John Godbold of the Eleventh Circuit appointed a committee consisting of himself, Circuit Judges Frank Johnson and Gerald Tjoflat, and District Judges Sam Pointer, Jr. and William O'Kelley (the Investigating Committee ). The chief counsel for the Investigating Committee was John Doar, an attorney then in private practice who had formerly served both as Special Counsel for the Committee of the Judiciary of the House of Representatives in its investigation regarding the impeachment of former president Richard Nixon and as an Assistant Attorney General for the Civil Rights Division of the Department of Justice.

Hastings objected to the Investigating Committee's jurisdiction and did not thereafter participate in the proceedings either directly or through his counsel. Over the course of three years, the Investigating Committee conducted an extensive investigation that included not only a review of the records of the proceedings in the Romano, Borders, and Hastings cases, but also consideration of numerous documents and witness testimony, including evidence that had not been introduced at Hastings' trial of various contacts between Borders and Hastings between February 1981 and September 1981. Between May 1985 and July 1986, the Investigating Committee took sworn testimony on seven different occasions. The Committee heard testimony from more than 110 witnesses and received approximately 2800 exhibits.

In a report completed in August 1986, the Investigating Committee stated that there was clear and convincing evidence that Hastings had sought to conceal his participation in the bribery scheme with Borders and to explain away evidence connecting him to the scheme and that he had pursued these objectives by presenting fabricated documents and false testimony in his criminal trial. The Investigating Committee unanimously recommended that the Judicial Council determine that Hastings had engaged in conduct that might constitute one or more grounds for impeachment by: (1) conspiring with Borders to receive a bribe for an official judicial act and, (2) giving false testimony and obstructing justice in connection with his criminal trial in an effort to conceal the conspiracy.

B. Malone's Testimony before the Investigating Committee

In his criminal trial, Hastings had offered a leather purse with a broken strap as an exhibit. Hastings testified that the reason he had accompanied Borders to his law office on October 9, 1981, was to locate a luggage shop to have the purse repaired. As part of the investigation by the Investigating Committee, the purse was submitted to the FBI Laboratory in 1985 for examination, including an analysis of the nature of the break in the strap.

Within the Laboratory, the case was assigned to SA Michael Malone, an examiner who had worked in the HFU since 1974. Malone remained in the HFU until 1994, when he transferred out of the Laboratory as part of a general reassignment of FBI agents from FBI Headquarters to the field offices.

Malone examined the purse visually and found two things that he thought suggested the strap had been deliberately broken. An eyelet on one end of the purse was recognizably distorted, while an eyelet on the other end was not. Malone posited that if the purse had been accidentally snagged on something, then both eyelets would have been equally distorted. Malone also found that the break in the strap did not appear to be accidental. If the break had been accidental, Malone thought the strap would have been torn completely across its width with a jagged-edge tear. Malone found, however, that the strap had been cut across three quarters of its width, leaving a straight edge, and the remainder of the strap had been torn, leaving a jagged edge. Malone also attempted manually to break the strap in an undamaged area but could not do so.

According to Malone, when he found he could not manually break the strap, he took it to Tobin so it could be examined with a tensile tester, a device that measures the tensile force necessary to break an object. Sometime between September 26 and 30, 1981, Tobin ran the tensile test and the strap broke at 29.5 pounds of force. Malone told the OIG that he did not know what this number meant and that he did not ask Tobin to explain it because he assumed they both would be called to testify at any hearing. Malone issued a report dated September 30, 1985. Tobin issued handwritten AE dictation dated October 2, 1985, which stated:

Malone's September 30, 1985, report includes language nearly identical to the first two sentences in Tobin's October 2, 1985, dictation. The September 30, 1985, report does not, however, refer to the strap sections failing at 29.5 pounds and 29.0 pounds or otherwise refer to the tensile test. From our investigation, we could not determine why Malone did not refer to these matters in his September 30, 1985, report.

On October 2, 1985, Malone testified before the Investigating Committee. Malone told the OIG that he met with Doar to discuss his testimony that same day. Malone maintains that he then told Doar that he did not conduct the tensile test, but that Tobin had done so. Malone told the OIG that Doar said, Damn, I forgot to subpoena Tobin. Malone says Doar asked him if he could read Tobin's results into the record and Malone agreed to do so. Malone thinks he may have then had Tobin's handwritten October 2, 1985, dictation, and says that Doar must have had something in writing regarding the tensile test because Doar knew about the 29.5 pound figure. Malone says Doar also told him that the judges would probably have questions about the test and asked if Malone could handle the questions. Malone says he told Doar he was not an expert in the force test but that he would try to answer the questions.

Doar disputes Malone's recollection about the discussions before the testimony. Handwritten notes that Doar prepared on October 1, 1985, show that he met with Malone the day before Malone testified. Among other things, these notes also indicate that Malone then told Doar that the strap broke at 29.9 pounds of tensile strength. The notes do not refer to Tobin. Doar insists that Malone did not tell him that Tobin performed the tensile test or even worked on the case, and Doar says he did not receive anything in writing from the FBI related to the tensile test before Malone testified on October 2, 1985. Doar denies ever telling Malone that he forgot to subpoena Tobin. On this point, Doar notes that he did not subpoena FBI witnesses for the proceedings, but instead requested their appearance by letter. Moreover, the Investigating Committee did not strictly observe the rules of evidence, and Doar told the OIG that if he had known that Tobin had conducted the tests, Doar would have had Malone read the relevant report into the record. Doar also says he would not have presented certain testimony by Malone if the latter had told him Tobin had done the test.

At the hearing before the Investigating Committee, Malone testified about the examination of the purse and the tensile test results. Malone testified that he microscopically examined the original separation in the purse strap. He told the Committee:

With regard to the tensile test, Malone stated:

Malone then described the results of the test:

Doar then asked Malone, And did you actually, yourself, conduct this test? Malone answered, Yes, I did. Malone's testimony that the strap broke at 29.9 pounds used the same figure that appears in Doar's notes from his meeting with Malone the previous day. The dictation prepared by Tobin, however, referred to 29.5 and 29.0 pounds. Before the Committee, Malone generally talked about the strap breaking at 29.9 pounds.

The judges on the Investigating Committee questioned Malone further about the meaning of the 29.9 pound figure. Malone responded, Well, it means, number one, it's a lot more than an average person could exert. . . .

Judge Tjoflat asked, If you are going to take the strap and hang it from something, that means you would put 29.9 pounds on the bottom and the gravity would cause it to break? Is that what you mean?

Malone responded:

Judge Godbold then stated, I understand your testimony that you couldn't break it, yourself. What I am trying to figure out is what 29.9 tells us apart from your inability to break it manually.

Malone answered, Other than saying how many pounds it took to break the strap, it's a meaningless figure.

Judge Godbold later returned to the issue by asking, Now, as to whether the machine at 29.5 is pulling harder than you were able to pull manually, I take it you can't answer that. Malone responded, That's correct. The judge then asked, [D]o you have an opinion as to whether the machine was pulling with greater force than you were able to pull manually, bearing in mind that the machine broke two pieces of the strap and that you could not break the strap. Malone answered, Yes. In my opinion, it was pulling much harder than myself.

After Malone testified before the Investigating Committee, Doar on October 5, 1985, wrote to the FBI liaison officer on the case, Dennis Aiken, asking the FBI to conduct further investigation to determine the static force required to break the strap on the purse. Doar's letter stated, We understand that the strap was inserted in a device which exerts pressure on two sides of the strap and that the machine measured 29.5 pounds when the strap parted. Please relate this number so that its significance can be appreciated. Doar also requested photographs of the two ends of the strap where the initial separation occurred.

As a result of Doar's request, Tobin prepared a report dated November 7, 1985, which further explained the 29.5 pound figure. The report stated that [i]t was concluded that a force of approximately 7 pounds had been exerted to break the strap after it had been partially cut. The report also stated that 29 2 pounds is not difficult for an individual of average' build to achieve by pulling'; a force of 7 pounds is very easily exerted. In fact, a force up to the actual weight of an individual can readily be exerted. When Tobin prepared this report, he did not know what Malone's testimony had been concerning the pulling force needed to break the strap.

On November 20, 1985, Doar received a copy of the November 7, 1985, report. This report does not state that Tobin conducted the tensile test or prepared the report, although the initials RU appear on the report and these initials were the Laboratory's code for Tobin. Doar says that he did not know Tobin had done the tensile test until he was interviewed by the OIG during our investigation. Neither Malone's September 30, 1985, report nor Tobin's November 7, 1985, report was offered as an exhibit in the proceedings before the Investigating Committee. The Committee did receive the purse, the strap, and certain photographs related to the examination of the purse as exhibits.

Malone testified again before the Investigating Committee on April 8, 1986. He then told the Committee that the purse strap had been subjected to a slow, steady pulling force on the tensile tester and had broken when it reached approximately 29.5 pounds of pulling force. Malone also testified that when the purse was first received in the Laboratory, he had microscopically examined the two broken ends of the strap and concluded that they had previously been joined together in one piece. Consistent with his earlier testimony, Malone again testified that the strap had been both partially cut in two and torn.

The Investigating Committee described its investigation and conclusions in a 1986 report to the Judicial Council for the Eleventh Circuit. The report is in three volumes: the first two describe the investigation and summarize the evidence received by the Committee, while the third presents the Committee's analysis of the evidence and findings.

With regard to Malone, the report states in volume 2:

The Investigative Committee's report does not otherwise refer to the tensile test. Volume 3 of the report discusses the Committee's analysis of the evidence on various issues. That discussion, which spans forty pages of the report, does not explicitly refer to Malone's testimony, but does observe that Hastings' testimony concerning a purse was troublesome because the strap which Judge Hastings claimed he tried to have repaired was not torn, worn, or broken; it was cut.

Based on its nearly three-year investigation, the Investigating Committee concluded that:

The report identifies thirty-two separate factual findings supporting this conclusion. In addition to finding that Hastings and Borders had agreed on the bribery scheme, the Investigating Committee identified fifteen points on which Hastings had presented false testimony at his criminal trial and found that he had introduced three fabricated documents as evidence. These findings do not refer to the purse, the purse strap, Malone, or the tensile test.

In September 1986, the Judicial Council of the Eleventh Circuit accepted and approved the Investigating Committee's report and concluded that Hastings had engaged in misconduct that might constitute grounds for impeachment. The Judicial Council made a certification to this effect to the Judicial Conference of the United States, which in March 1987 certified to the House of Representatives its concurrence in the Council's determination that impeachment might be warranted. After the House returned articles of impeachment, the Senate in October 1989 voted to remove Hastings from his judicial office.

Attorney Alan Baron served as impeachment counsel for the House of Representatives and as prosecuting counsel for the Senate in connection with the Hastings impeachment. Baron told the OIG that he did not offer testimony by Malone in the impeachment proceedings before the House or the Senate, that he thought Malone's testimony before the Investigating Committee was confusing, and that the evidence concerning the purse was peripheral. Malone's testimony before the Investigating Committee and the Laboratory reports dated September 30, 1985, and November 7, 1985, were not made exhibits in the proceedings before the House or the Senate. The articles of impeachment returned by the House of Representatives and the accompanying report of the House Committee on the Judiciary do not refer to the purse, the purse strap, Malone, or the tensile test.

During the impeachment proceedings, Tobin and Malone, along with certain other potential FBI witnesses, were told by the FBI Office of Congressional Affairs to stand by should their testimony be needed. Neither Tobin nor Malone ultimately testified before Congress. In preparing for possible testimony, however, Tobin in August 1989 reviewed Malone's 1985 testimony before the Investigating Committee. Tobin says this was the first time he had seen Malone's testimony.

Tobin recalls that upon reviewing Malone's testimony, he immediately contacted Kenneth Nimmich, then the chief of the SAS, to discuss problems Tobin saw in the testimony. Tobin says that, in a brief conversation, he indicated to Nimmich that there was a potential serious problem that could be very embarrassing to the FBI regarding evidence manipulation and some very inappropriate presentation of the data. He further recalls telling Nimmich that Malone had testified inappropriately and inaccurately, and says he also described Malone's testimony as misrepresented and false. Nimmich, Tobin states, asked Tobin to provide a document detailing Tobin's exceptions to Malone's testimony.

Tobin says that within several days of his meeting with Nimmich, he prepared a memorandum describing his concerns about Malone's testimony. The memorandum, which is addressed to Nimmich and not dated, states:

Tobin's memorandum details serious concerns about Malone's testimony. According to Tobin, he first gave the memorandum to his unit chief, Roger Aaron. Aaron recalls discussing the concerns with Tobin, and Aaron wrote on the memorandum, Sad to say, you are right on every point. This has to be done. Tobin says that after he talked with Aaron, he placed a copy of the memorandum in an envelope and either delivered it to Nimmich in person or placed it in Nimmich's in-box. Neither Tobin nor Aaron recalls hearing anything more about the matter after Tobin prepared his memorandum. Tobin also says he did not at the time discuss his concerns with anyone other than Nimmich and Aaron.

In his memorandum, Tobin criticized Malone for testifying that he had done the tensile test and other things, such as taking photographs, labeling evidence, and making test tears, that Tobin had in fact done. Tobin also took issue with Malone's testifying that it had been necessary to jury rig the test device. Tobin wrote, The equipment was designed for any solid material of suitable configuration. The testing was in conformance with the Frye and generally accepted guidelines' rules, contrary to the manner in which the testimony was presented. (emphasis in original). Tobin also found areas where Malone misused metallurgical terms or was inaccurate.

Tobin's more serious allegations centered on Malone's testimony that the force needed to break the strap was a lot more than the average person could exert. Tobin wrote that this testimony was in [d]irect contradiction to laboratory (AE) findings supported by data. Presents apparently and potentially exculpatory information as incriminating. He also stated that Malone's testimony that the 29.5 figure was meaningless is not true. With regard to how the tear was created during the test, Tobin wrote that Malone's testimony was a [c]ompletely fabricated failure propagation assessment. Tobin complained that Malone's testimony about the test breaks suppresses apparent exculpatory material behavior and presents test specimens as incriminating data. Tobin ended his memorandum, however, by stating that [o]verall, the exceptions to the testimony of SA Malone do not affect the technical assessment that the purse strap has been cut.

The Laboratory apparently did not further investigate the serious allegations made by Tobin about Malone's testimony. Malone told the OIG that sometime after Hastings was impeached, Nimmich stopped him briefly in a hallway and said that Tobin had made an allegation against him. Nimmich, according to Malone, said that he had looked into the allegation and had concluded that there was nothing to it. Malone said that before the OIG investigation, he was never questioned by anyone about his testimony before the Investigating Committee or Tobin's allegations, and he did not confront Tobin about the allegations.

When Nimmich reviewed Tobin's memorandum during the OIG investigation, he said he did not recall ever seeing it before, the allegations it described, or discussing the matter with Tobin. Although Nimmich did not deny that Tobin might have raised these matters with him, he said that if he had received Tobin's memorandum, he would have himself sent a memorandum to the Laboratory's Director and asked Malone to respond to the allegations. If it appeared Malone had acted inappropriately, Nimmich said he would have referred the matter to the FBI OPR.

Upon checking his calendar, Nimmich found references to two meetings on August 3, 1989, regarding the Hastings case. The first notes a meeting at 8:00 a.m. with Tobin, Malone, and another person who appears to have been Daniel Dzwilewski, who then worked in the FBI's Office of Congressional Affairs and who coordinated the appearance of witnesses before Congress for the impeachment proceedings. The second reference is for 4:00 p.m. and simply notes: Aaron - Tobin - re Hastings Case.

Through our investigation, we could not confirm that Nimmich met with the persons indicated on his August 3, 1989, calendar. Nimmich does not recall any such meetings. Dzwilewski says that it is conceivable that he met with Nimmich, Tobin, and Malone, but he does not recall doing so. Both Tobin and Malone say that they did not ever meet together with Nimmich regarding the Hastings case. Aaron said he did not have a substantive conversation with Nimmich regarding Tobin's allegations, and Tobin says he did not inform Nimmich about Aaron's views on the matter.

Based on our investigation, we conclude that Malone, in his 1985 testimony before the Investigating Committee, falsely testified that he had himself performed the tensile test and that he testified outside his expertise and inaccurately concerning the test results. The OIG questioned Malone about Tobin's allegations and, to his credit, Malone agreed with many points that Tobin had raised. Malone maintained, however, that he was justified in giving certain testimony because he was offering his own personal opinions rather than expert opinions. This is not a persuasive rationale for the presentation of inaccurate testimony by a Laboratory examiner.

Before the Investigating Committee, Malone testified falsely when he responded yes to the question, did you actually, yourself, conduct this test? In his OIG interview, Malone admitted he was technically wrong in his response but noted he had been right there when the test was conducted. Malone's presence when the test was performed does not justify his inaccurate response to the question whether he actually conducted the test.

Malone's testimony that he conducted the test is particularly egregious, because he proceeded to inaccurately describe how the test was performed and the significance of its results. Malone, as noted above, testified that 29.9 pounds of force is a lot more than the average person could exert. In an interview with the OIG, Malone said this statement was his own layman's opinion based upon the fact that he was not able to break the strap manually. Malone was testifying outside his expertise and evidently did not understand the meaning of the 29.9 pound figure. He incorrectly told the Investigating Committee that [s]ince nobody in our unit or our lab had ever done a test like this, and I have never heard of any studies being published, it's almost a meaningless figure other than it's a lot more than an average person could exert. He later admitted that the questions were getting outside of [his] area of expertise, but he proceeded to again say that 29.9 pounds was a meaningless figure.

Malone's testimony on this issue was inaccurate and unacceptable. Tobin in his 1989 memorandum noted that Malone's testimony was contradicted by the findings in Tobin's November 7, 1985, report. This report was not completed until nearly one month after Malone testified before the Investigating Committee in October 1985, and we did not find evidence establishing that Malone knew the information in the report when he then testified. Thus, we do not find that Malone knowingly or deliberately testified in contradiction to Tobin's conclusions as described in the November 7, 1985, report.

Moreover, Malone's testifying that he actually conducted the test, combined with other facts, causes us to believe Malone is incorrect in now claiming that he told Doar in 1985 that Tobin had conducted the test. As noted above, Doar states that Malone did not tell him, and he did not otherwise know, that Tobin had done the work. Doar's notes of his meeting with Malone do not refer to Tobin, and the questions Doar asked during Malone's testimony suggest Doar thought Malone conducted the test. Malone's statement to the OIG that Doar said in 1985 he had forgot to subpoena Tobin is not credible. We conclude that Doar did not know during the Investigating Committee proceedings that Malone had not performed the tensile test. Recognizing that we are reviewing events that occurred more than ten years ago, and given the record now before us, we are not able to find that Malone engaged in intentional misconduct by failing in 1985 to tell Doar that Tobin had performed the test or by inaccurately describing to the OIG his conversations with Doar before Malone testified.

Malone also testified inaccurately about other matters outside his expertise. For instance, regarding the break in the purse strap, Malone testified before the Investigating Committee that he observed that it's not a sudden break like you would have with a metal. When a metal breaks, bam, it's gone, it's broken, it's instantaneous. Tobin noted that the statements about metals were [i]ncorrect. In fact, designers and users abhor sudden breaks because of the potential for catastrophic loss of life. Designers, therefore, attempt to insure gradual failures so that it is not instantaneous. Malone acknowledged to the OIG that he might have been wrong on this point, but said that he was conveying his own personal opinion that metal breaks suddenly.

The testimony that Malone gave before the Investigating Committee cannot be excused by his explanation that he was offering his personal opinion based on his own experience or subjective beliefs. Laboratory examiners generally are proffered as witnesses because they have expertise and can offer opinions based on their scientific examination of evidence. The questions that Doar asked Malone suggest that Doar thought that Malone had conducted the test and was competent to explain the results. By failing to tell Doar that Tobin had performed the tests, Malone not only misled the special counsel but may also have caused him to forgo the testimony of another expert who was appropriately qualified to answer certain questions raised by the Committee about the tensile test.

In testifying before the Investigating Committee, Malone should have candidly stated that he did not perform the tensile test and could not explain the significance of its results. The transcript instead suggests that when Malone was asked questions outside his expertise about the tensile test, he resorted to fabrication rather than admitting he did not know the answer. After reviewing Malone's testimony, Tobin observed, and we agree, that it appears that someone's under pressure to be specific and can't because he doesn't have any personal knowledge of the actual physical phenomena that are occurring, and therefore, seems to make up, based upon very limited amount of information, a sequence of events that just flat didn't occur.

We recognize that the inaccuracies in Malone's testimony do not appear to have had any effect on the Investigating Committee's ultimate findings and recommendation. Tobin himself acknowledged in his 1989 memorandum that his complaints about Malone's testimony did not affect the technical assessment that the strap had been cut. Moreover, the thirty-two factual findings supporting the Investigating Committee's conclusion do not refer to Malone, the tensile test, or the purse. Both John Doar, the counsel for the Investigating Committee, and Chief Judge Gerald Tjoflat, who served on the Committee, told the OIG that Malone's testimony did not influence the Committee's findings. Although these facts indicate that Malone's misstatements did not affect the outcome of the Investigating Committee proceedings, they do not in our view excuse Malone's conduct.

We cannot understand the Laboratory's failure to further investigate the allegations that Tobin made regarding Malone's testimony. We could not confirm that Nimmich in fact reviewed Tobin's 1989 memorandum, but we are persuaded that Tobin expressed his concerns orally to Nimmich. Tobin says he did so, and, as noted above, Malone recalls that Nimmich told him that Tobin had made an allegation and that Nimmich had determined there was nothing to it. Aaron also recalls Tobin telling him in 1989 that he had met with Nimmich, expressed his concerns about Malone's testimony, and that Nimmich had asked Tobin to put his complaints in writing. Such a direction, Aaron noted, was an indication the matter was serious. Given the serious nature of Tobin's allegations, Nimmich should have taken steps to assure that they were adequately investigated, even if for some reason Nimmich did not ever receive Tobin's memorandum. If Nimmich did in fact conclude the allegations were unfounded, he did so without adequate justification.

Nimmich should have assured in 1989 that Malone and Tobin were interviewed, that the matter was otherwise appropriately investigated, and that the resolution was documented. Such an investigation could have resulted in appropriate administrative discipline and conceivably a referral for investigation for possible criminal misconduct. Nimmich acknowledged to the OIG that Malone's claiming to have performed tests he had not conducted should, at the least, have resulted in a reprimand. We did not find any evidence that Tobin's allegations were appropriately investigated or resolved by anyone in FBI management.

The concerns raised by Tobin in 1989 also evidently were not then communicated to Congress or otherwise outside the FBI. Alan Baron told the OIG that he did not know until recently that Tobin had made any allegations about Malone's 1985 testimony. Similarly, Hastings and Terence Anderson, an attorney who has represented Hastings since 1981 and who represented him in the impeachment proceedings, said that they first learned through media reports in February 1997 that Tobin had criticized Malone's testimony.

Tobin states that in 1989, he discussed his concerns only with Nimmich and Aaron. He also recalls that he told Aaron he would deal directly with Nimmich and he asked Aaron not to get involved in the matter himself. Tobin further says that Aaron returned to him the copy of the undated memorandum that Aaron reviewed, and Tobin says that he did not give the memorandum to anyone other than Nimmich until years later. Finally, Tobin says that when he prepared the memorandum, he intended to defer to Nimmich if the latter thought it did not warrant additional action.

Aaron did not approach Nimmich to discuss the matter, and says that while he may have mentioned the matter to Malone's unit chief, he does not specifically recall doing so. Alan Robillard, who was the chief of Malone's unit in August 1989, says he only recently learned from news accounts that Tobin had made allegations concerning Malone's testimony related to the Hastings proceedings. John Hicks, who became Laboratory Director in August 1989, says he did not know of Tobin's allegations regarding Malone. Bernardo Perez, who served as Deputy Assistant Director in the Laboratory from May 1989 through March 1991, does not recall being aware of these allegations and says that if this matter had been brought to his attention, he would have sent a memorandum to the FBI OPR and to FBI legal counsel. Daniel Dzwilewski, who coordinated the appearance of FBI witnesses in the congressional impeachment proceedings, told the OIG that he did not know of Tobin's criticisms of Malone's testimony until he was advised in March 1997 that he would be interviewed as part of the OIG investigation. Given these facts, and Nimmich's claim that he does not recall this matter at all, we are unable to conclude that there was a deliberate or concerted effort within the FBI to conceal Tobin's allegations about Malone's testimony.

We conclude that the Laboratory would benefit from a clear delineation of responsibilities between units with respect to metals-related examinations, better communication among examiners in this area, and recognition that differences among examiners should be resolved on a scientific basis. We also conclude that the EU should take steps to assure that its examiners properly conduct and report their examinations of wires or other metals-related evidence.

With regard to both the issue of the EU's measurement of wire gauge and the controversy over the examination of holes in pipes in the La Familia case, we think EU Chief J. Thomas Thurman should have focused more on assuring that EU examiners were reporting the results of examinations in an appropriate manner. William Tobin displayed poor judgment by failing to discuss his concerns in the La Familia case with the principal examiner before Tobin issued his revised dictation. We also think that Tobin and FTU examiner Michael Ennis should have taken further steps, with involvement by their unit chiefs if necessary, to attempt to resolve the apparent differences in their conclusions about the holes found in the pipes. Because they did not reconcile their opinions on a scientific basis, Tobin and Ennis might have contradicted each other if they had testified about the results of their examinations.

In the Alcee Hastings case, we find that Michael Malone testified falsely and outside his expertise in discussing tensile tests performed by the Laboratory. Moreover, after Tobin raised concerns about Malone's testimony in 1989, then-SAS Chief Kenneth Nimmich failed to assure that the serious allegations of examiner misconduct were appropriately investigated and addressed.

In reviewing Tobin's allegations, we also identified ways in which the policies or the practices of the Laboratory could be improved:

(1) Laboratory management must assure that disputes about methodology or the interpretation of data -- such as those illustrated by the wire gauge issue or the examinations in the La Familia case -- are resolved professionally based on the pertinent scientific knowledge and that the resolution is communicated to those involved.

(2) There also appears to be a need, which the Laboratory seems to recognize, for clearer delineation of the respective roles of different units in the area of metallurgy and for improved communication between units. Defining the roles more clearly and improving communication should help to assure that the Laboratory's conclusions are reasonably supportable and properly reported, and should also reduce unnecessary conflict between units.

(3) The Laboratory should adopt guidelines for examiner testimony that, among other things, direct examiners to be accurate and to remain within their expertise in testifying. The Laboratory might also benefit from procedures aimed at identifying which examiner or other representative of the Laboratory is best able to testify on particular issues. The Laboratory also should implement an effective program for monitoring the testimony of its examiners. Such guidelines and procedures would have helped to avoid problems like those evidenced by Malone's testimony in the Hastings matter.

(4) Laboratory management must assure that concerns about the quality of the Laboratory's work, such as those raised by Malone's testimony, are investigated promptly and appropriately and that the resolution is documented.

We comment further on these issues in Part Six of this Report, which discusses our general recommendations regarding the Laboratory and the role of management.

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The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases (April,1997) Office of the Inspector General, Department of Justice