I. Introduction


Whitehurst claims that he has been the victim of retaliation because he expressed concerns about the FBI Laboratory to the FBI and others. He offers several examples of alleged retaliation and the retaliatory atmosphere within the FBI.


Whitehurst claims that the FBI retaliated against him in 1990 by suspending him for one week and placing him on six months' probation because he accused Terry Rudolph of misconduct in the Psinakis case. Whitehurst further alleges that the FBI retaliated against him and his wife, Cheryl Whitehurst, in 1992 by ignoring their allegations of computer software theft within the Criminal Investigative Division and by failing to punish an FBI employee who assaulted Cheryl Whitehurst. According to Whitehurst, the retaliation continued into 1993, when the FBI management ordered him to undergo psychiatric examination and later to participate in psychotherapy. Whitehurst also charges that in 1993, the FBI retaliated against him by opening an investigation into his alleged disclosure of confidential information to members of the Senate Judiciary Committee.


As further examples of retaliatory conduct, Whitehurst alleges that the FBI compiled and released derogatory information about him as Henthorn material in the 1993 World Trade Center trial and the 1995 Simpson trial. Whitehurst further alleges that in mid-1994, the FBI retaliated against him by transferring him from the explosives analysis unit to the paints and polymers program.


Whitehurst supports his claims of retaliation with a number of anecdotal examples of the FBI's intent to retaliate. Those examples include instances in which Kearney, Hahn, and Thurman allegedly made threatening remarks to Whitehurst. Whitehurst also maintains that other FBI employees have expressed reluctance to criticize the FBI for fear of retaliation.


In the following sections, we analyze Whitehurst's claims to determine whether there is a factual basis for Whitehurst's belief that he suffered retaliation because he raised concerns about the Laboratory. With respect to all but one of Whitehurst's claims, we conclude that the evidence does not substantiate Whitehurst's allegations of retaliation. Generally, the circumstances of those events supported the decisions made by the FBI management, and we discerned no retaliatory or wrongful purpose behind those decisions.


We are not able to reach a conclusion concerning Whitehurst's claim that the FBI sought to punish him by forcing him to undergo psychiatric evaluation. Despite our requests, Whitehurst failed to provide a medical release form that would have allowed key personnel in the Health Care Program Unit and Employee Assistance Program to discuss medically sensitive information about Whitehurst. Without statements from these personnel, we are not in a position to reach a conclusion concerning this claim by Whitehurst.


II. Analysis of Whitehurst's Allegations


A. The Claim that the FBI Improperly Punished Whitehurst for His Conduct in the Psinakis Case


Whitehurst charges that in November 1990, the FBI improperly suspended him without pay for seven days and placed him on six months probation because he accused Terry Rudolph of misconduct in the Psinakis case.


In reviewing this matter, we obtained and reviewed relevant files and records from FBI OPR, Administrative Summary Unit (ASU) of the Administrative Services Division, and the Laboratory, along with pertinent provisions of the FBI Manual of Administrative Operations and Procedures. We also interviewed former Laboratory Director John Hicks, former SAS Chief Kenneth Nimmich, FBI OPR Unit Chief Ralph Regalbuto, FBI OPR case agent Gary Bald, FBI ASU Unit Chief Jerry Donahoe, FBI ASU case agent Peter Gullota, AUSA Charles (Ben) Burch, and FBI Special Agents Tony Maxwell and Frank Doyle.

We conclude that Whitehurst's claim is not substantiated.


1. Factual Background


In 1989, the United States Attorney's Office in San Francisco prosecuted Psinakis for smuggling explosives to the Philippines. A jury ultimately acquitted Psinakis of all charges in June 1989. During the FBI's investigation, agents found tools purportedly used to strip detonation cord containing PETN. In January 1982, explosives residue examiner Terry Rudolph rendered an opinion that the tools contained traces of PETN. Rudolph's opinion is the subject of discussion earlier in this Report. See Part Three, Section A.


Shortly before trial, Assistant United States Attorney (AUSA) Ben Burch became concerned that Rudolph's examinations were incomplete and requested more conclusive examinations. Whitehurst conducted these additional examinations, which confirmed the presence of PETN in the samples. However, while preparing to testify, Whitehurst reportedly became concerned that his identification of PETN resulted from contamination of the sample by Rudolph. Whitehurst based his concerns on observations of Rudolph's work habits during his training period with Rudolph. Whitehurst acknowledged that he was not in the Laboratory in 1982 when Rudolph actually examined these items.


When Whitehurst arrived in San Francisco for trial, he failed to share his concerns about contamination with AUSA Burch or FBI Special Agent Frank Doyle, the case agent. Whitehurst explained that during a pre-trial meeting, he heard Burch joke about Doyle's personal acquisition of government frequent flyer miles. According to Whitehurst, the conversation reflected a flippant attitude toward a violation of FBI regulations and convinced him that he could not share his concerns about possible contamination. Whitehurst therefore decided to first express his concerns about Rudolph while testifying at trial.


When Whitehurst subsequently learned that he would not be called as a witness at trial, he told us he worried that his concerns might never surface. Whitehurst therefore approached the defense expert, Dr. Lloyd Snyder, and as Whitehurst later explained in a sworn statement to FBI OPR:


I . . . advised Dr. Lloyd Snyder of my misgivings concerning the testimony of SSA Terry Rudolph in this matter. I specifically advised Dr. Snyder that Rudolph's laboratory and work area were, and to my knowledge had always been, extremely sloppy and contaminated and that PETN, high explosive material, found on the evidence that Rudolph was testifying to could have originated from Rudolph's laboratory or work area. I suggested that cross examination of SSA Rudolph specifically address this issue. . . . Later, as I was leaving the area of the court room, I noted that Dr. Snyder and Mr. Brosnahan, the Defense Attorney, were in conference in the hall. I went up to Dr. Snyder, shook his hand, and advised him that I would not be able to testify and that I was sorry as I had something to say. I specifically did that in order to raise Mr. Brosnahan's attention to what I felt was a miscarriage of justice.


Sometime before departing, Whitehurst told AUSA Burch that Rudolph was a slob and that the evidence could have been contaminated, but did not mention his conversation with the defense expert.


Whitehurst then returned to the Laboratory and reported to Laboratory Director Castonguay that he may have violated FBI regulations and federal law by making his disclosures. After interviewing Whitehurst about the matter, SAS Chief Nimmich prepared a June 30, 1989, memorandum recommending that Whitehurst be orally reprimanded for discussing the matter with the defense without notifying the prosecutor or case agent. Also during June 1989, the Laboratory received a letter from AUSA Burch that was highly critical of Rudolph's work in the case, but praised Whitehurst for his concerns about integrity. In response, the Laboratory initiated a review of Rudolph's work.


As a result of Nimmich's June 30, 1989, memorandum, FBI OPR opened an investigation into Whitehurst's conduct. Gary Bald, FBI OPR case agent, conducted a fact-finding investigation, which included interviews of Burch, Doyle, and Whitehurst. Laboratory management also sent a memorandum to FBI OPR again recommending an oral reprimand. Bald subsequently completed his investigation and sent these materials to the ASU for a determination of possible administrative action. Pursuant to FBI OPR policy, Bald did not make any recommendation.


ASU case agent Pete Gullota received these materials and prepared the case review memorandum, dated July 23, 1990. In that memorandum, Gullota stated that although there is little doubt that SSA Whitehurst's concerns were legitimate, Whitehurst exercised an egregious display of poor judgment by first contacting the defense and disclosing confidential information in violation of the FBI's Manual of Administrative Operations and Procedures (MAOP). Gullota also observed that Whitehurst's concerns about contamination were speculative, in that he had not observed Rudolph conducting the examination in this case. Gullota recommended that Whiteh urst be suspended for seven days without pay and placed on six months probation.


In response, Laboratory Director Hicks met with Weldon Kennedy, the FBI Chief of the Administrative Services Division (with responsibility for the ASU), and James Greenleaf, the FBI Associate Deputy Director of Administration. Hicks argued that the recommended punishment was too severe and that Whitehurst should receive only an oral reprimand. Hicks also sent two memoranda to Greenleaf recommending that the suspension be dropped. Kennedy and Greenleaf ultimately agreed only to delay the suspension to allow Whitehurst an opportunity to immediately appeal the decision.


Whitehurst appealed his suspension in a memorandum to Kennedy, stating, My appeal is based on my recognition that my actions were completely warranted under the circumstances. As a result of Whitehurst's perceived failure to acknowledge his erroneous judgment, Gullota recommended to Kennedy and Greenleaf that the appeal be denied. In a November 1, 1990, letter, Greenleaf denied Whitehurst's appeal and ordered the seven-day suspension to commence on November 2, 1990.


2. Analysis


The evidence does not support Whitehurst's assertion that this incident reflected a retaliatory action by the FBI. Specifically, the FBI management had reason to criticize Whitehurst's conduct in the Psinakis case. Whitehurst erred in failing to disclose his concerns about contamination to SA Doyle, AUSA Burch, or Whitehurst's supervisors at the Laboratory, while making those concerns known only to the defense. As the explosives residue examiner who succeeded Rudolph, Whitehurst was obliged to fully report his findings and concerns to those in charge of the prosecution. We cannot accept Whitehurst's rationale that because he thought the AUSA and case agent had disregarded FBI regulations regarding frequent flyer miles, Whitehurst was j ustified in not reporting his concerns about contamination. Even if Whitehurst thought the AUSA and case agent would disregard his concerns, Whitehurst should have reported those concerns to his supervisors in the Laboratory.


Whitehurst also displayed poor judgment in deciding to raise his concerns about contamination for the first time while testifying. Whitehurst reported that he only contacted the defense expert when he learned that he would not be able to present these views himself while testifying at trial. Whitehurst's decision to surprise the parties with this information at trial was itself improper. His actions threatened to unnecessarily complicate the presentation of this evidence and possibly delay the trial while the parties investigated his concerns. In this respect, Whitehurst acted without regard for the adverse impact that his conduct might have on the overall case.


With that background, we conclude that the Laboratory management did not act with the intent to retaliate against Whitehurst. To the contrary, the evidence showed that Nimmich, Castonguay, and Hicks repeatedly sought the least severe form of discipline possible for Whitehurst -- oral reprimand. The evidence further showed that Hicks personally intervened with Kennedy and Greenleaf to obtain rescission of the ASU's recommended suspension. According to Jerry Donahoe, Chief of the ASU at the time, Hicks' action was very unusual. We also note that during his first interview of Whitehurst, Nimmich determined that the matter would be treated as an administrative (as opposed to criminal) matter. According to FBI OPR's Gary Bald, the FBI Laboratory was not authorized to make that decision. Nimmich's determination, however, also suggests that the Laboratory was not acting with an intent to unfairly punish Whitehurst.


Additional evidence also supports our finding. In the June 30, 1989, memorandum, Nimmich praised Whitehurst as a highly principled examiner who approaches his work with an exceptional degree of professionalism. Similarly, Hicks, in his memoranda to Greenleaf, lauded Whitehurst's contributions to the Laboratory. In our interview, Hicks stressed that the FBI disciplined Whitehurst, not for raising his concerns, but for the manner in which he raised his concerns. Both Nimmich and Hicks stated that they did not believe that Whitehurst's suspension was a retaliatory act.


The evidence also does not support Whitehurst's suggestion that FBI OPR acted with a retaliatory intent. Gary Bald, FBI OPR case agent assigned to the case, denied that he had any personal motivations against Whitehurst and told us that he would have investigated anyone who appeared to be acting in retaliation against Whitehurst. Bald stated that Whitehurst was correct to express his concerns about Rudolph's work but should have done so within the FBI. We also found that the manner in which Bald conducted the investigation did not suggest a retaliatory motive. For example, we saw no evidence that Bald withheld information favorable to Whitehurst or recommended that the ASU take any disciplinary action. In fact, the documents show that when Bald learned about the allegations against Rudolph, he directed the Laboratory to furnish him with the results from the review o f Rudolph's work. Bald explained that he wanted to ensure that the Laboratory was addressing Whitehurst's allegations against Rudolph.

Our investigation also did not support the conclusion that the ASU acted with a retaliatory purpose. SSA Pete Gullota, who recommended that Whitehurst receive a letter of censure, suspension, and probation, denied any intention to retaliate against Whitehurst and stated that he had no prior knowledge of Whitehurst or Rudolph. ASU Chief Jerry Donahoe, who approved Gullota's recommendation, likewise disclaimed any prior knowledge of Whitehurst or intent to retaliate. In deciding to recommend suspension, Gullota reportedly considered the results of FBI OPR investigation, the recommendations of other ASU agents, the MAOP schedule of penalties, and Whitehurst's personnel file. Gullota was not able to find a similar case for comparison. Gullota concluded in his July 23, 1990, report:


While ASD recognizes SSA Whitehurst's intentions were honorable in that he was concerned about the integrity of the judicial process and the FBI's role in it, it is apparent that he exercised extremely poor judgement and unprofessional conduct in the manner in which he expressed his concerns regarding SSA Rudolph's analysis.


The factors reviewed by Gullota appear to be appropriate. See MAOP, Part I, ' 13-12(1).


We also conclude that the conduct of FBI management in this matter did not reflect an intention to retaliate against Whitehurst. In fact, it appears that the decision by Kennedy and Greenleaf to delay Whitehurst's suspension pending appeal was unusually lenient. According to Gullota, the FBI ordinarily imposes such disciplinary action immediately, without an opportunity for appeal. Because of Hicks' intervention, however, the FBI held Whitehurst's suspension in abeyance pending resolution of the appeal. Gullota could not recall FBI management acting similarly in any other matter. Furthermore, both Gullota and Hicks told us that Whitehurst's suspension likely would have been lifted had Whitehurst acknowledged that he exercised poor judgment. Gullota stated that only after Whitehurst claimed that his actions were completely warranted under the circumstances did Gullota decide to recommend that Whitehurst's appeal be denied.


We nevertheless are troubled by the apparent disparity in treatment given to Whitehurst and Rudolph in this matter. As we concluded earlier, the FBI Laboratory management clearly failed to properly investigate the allegations against Rudolph. The FBI Laboratory's treatment of Rudolph -- and particularly its conclusion that Rudolph's procedures were weak analytically but accepted practice in 1982 -- seemed to give Rudolph every benefit of the doubt. The discipline imposed by the FBI on Whitehurst seems severe in contrast, although there is little to suggest that its severity grew out of a retaliatory motive. The apparent disparity illustrates yet another problematic consequence of the FBI's failure to address deficiencies in Rudolph's work.


B. The Claim that the FBI Ignored and Covered Up Whitehurst's Allegations Concerning Software Theft and Assault


In 1991, Whitehurst reported to FBI OPR that personnel in the Criminal Investigative Division (CID) were stealing computer software and that Supervisory Special Agent Kenneth Neu had assaulted his wife, Cheryl Whitehurst, for reporting these software thefts. Whitehurst claims that FBI OPR ignored and covered up these allegations.


In connection with this allegation, we reviewed the files and records of FBI OPR and DOJ OPR, along with selected, relevant documents from the CID and Cheryl Whitehurst's personnel file. We also interviewed the following personnel: former Criminal Investigative Division (CID) Assistant Director William Baker, former CID Investigations Support Section Chief Joseph Koletar, former CID Assistant Section Chief James Summerford, CID Safe Streets Unit Chief Kenneth Neu, former CID Automation Support Group specialist Christopher Belan, former FBI OPR case agent Stephen M. Largent, former Deputy Laboratory Director Bernardo M. Perez, former DOJ OPR Assistant Counsel David Bobzien, FBI OPR Unit Chief Ralph Regalbuto, and former Principal Deputy General Counsel Steven Robinson.


The evidence did not substantiate Whitehurst's allegations of wrongdoing and retaliation by FBI OPR.


1. Factual Background


In late-1990, Cheryl Whitehurst worked as a management analyst within the Automation Support Group (ASG) of the CID. She was the point of contact for CID personnel with respect to computers. Her duties included maintaining the computers, troubleshooting any problems, and handling computer repair orders.


On November 26, 1990, Cheryl Whitehurst sent a memorandum to her Unit Chief, Robin Brown, alleging that personnel within the CID were routinely using unlicensed copies of software programs, including the Harvard Graphics program. After Brown allegedly failed to address the issue, Cheryl Whitehurst brought the matter to the attention of CID Section Chief Joseph Koletar. As a result, in a March 18, 1991, memorandum, Koletar notified all CID Section Chiefs that the ASG shortly would purge all unauthorized software.


On March 20, 1991, SSA Kenneth Neu confronted Cheryl Whitehurst in her office about the decision to purge the Harvard Graphics program. According to both Cheryl Whitehurst and Neu, Neu was angry. Two days later, Frederic Whitehurst sent a memorandum to the FBI OPR requesting an investigation into the use of unlicensed software in the CID and Neu's behavior toward Cheryl Whitehurst.


In response, the FBI OPR opened an investigation and assigned the matter to OPR case agent Steve Largent. Largent obtained a signed statement from Cheryl Whitehurst on April 9, 1991. In that statement, Cheryl Whitehurst described her efforts to report the alleged software thefts and added, I consider this to be an administrative or management problem. I believe that Section Chief Joe Koletar is addressing the problem. She further denied that she had received any retribution for reporting the use of unlicensed software. She also stated that she was afraid that Neu might hit her, but that Neu did not physically touch or threaten her. On May 6, 1991, DOJ OPR Assistant Counsel David Bobzien reviewed these facts and recommended termination of the investigation in view of the absence of serious misconduct. The FBI OPR closed the investigation on May 15, 1991.


In April 1995, Frederic Whitehurst wrote to the Deputy Attorney General about the alleged assault, triggering a new DOJ OPR inquiry. The DOJ OPR reviewed the FBI OPR file and re-interviewed Cheryl Whitehurst on October 11, 1995. At that time, Cheryl Whitehurst reiterated that Neu never threatened to hurt her, and that she suffered no medical, emotional, or physical problems as a result of the incident. She further stated that a desk separated her from Neu during the ten-minute confrontation. Cheryl Whitehurst added that she did feel threatened and afraid, but did not ask Neu to leave, tell Neu that he was scaring her, call for help, ask a co-worker who entered her office to get help, complain to authorities within the FBI, or seek legal action against Neu. Likewise, Cheryl Whitehurst stated that after the confrontation, she was not afraid of Neu, did not refuse to work with him, and was not uncomfortable alone with him. The DOJ OPR concluded that Neu had been rude and abrasive, but that hi s conduct did not rise to the level of misconduct warranting further inquiry.


During the DOJ OPR inquiry in 1995, Whitehurst also complained that Cheryl Whitehurst's supervisor, James Summerford, had retaliated against her for raising issues about unlicensed software. The DOJ OPR referred this allegation to the DOJ OIG. The DOJ OPR then closed the inquiry.


2. Analysis


The evidence does not show that the FBI OPR ignored Whitehurst's allegations concerning the computer software thefts. The FBI OPR's investigation revealed that Cheryl Whitehurst first made her allegations about unauthorized software in late-November 1990. In March 1991, as a result of Cheryl Whitehurst's complaint, Section Chief Joseph Koletar instructed the ASG to purge all unauthorized software and notified CID personnel that future generations of unauthorized software [would] meet a similar fate. When the FBI OPR subsequently interviewed Cheryl Whitehurst in April 1991, she reported that Section Chief Koletar was addressing the problem. The FBI OPR then referred the matter to DOJ OPR attorney David Bobzien for a deter mination concerning the appropriateness of criminal charges. Bobzien advised the FBI OPR that although a technical violation of the copyright statute might have occurred, the matter was being handled appropriately by the CID and did not rise to the level of serious misconduct. Thus, Bobzien recommended that investigation be closed. In sum, the investigation conducted by FBI OPR indicated that CID management had addressed the software problem in a timely fashion and, as a result, DOJ OPR approved closing the investigation. We find no reason to criticize the FBI OPR investigation in this regard.


Whitehurst further claims that the FBI OPR ignored and covered up the retaliatory assault on his wife. Contrary to this claim, the FBI OPR obtained a sworn statement from Cheryl Whitehurst in which she stated that she had not suffered any retribution as a result of her allegations. With respect to the alleged assault, Cheryl Whitehurst reported in her sworn statement in pertinent part:


I was visited in my office by SSA Kenneth Neu, who I would describe as being extremely mad. Neu recently had back surgery and I know that he wears a backbrace, so I am not sure whether his physical actions were due to back pain or due to his extreme anger. He walked into my office with his fist clenched at his side and his face extremely red. I have known him since 1982 and know him to be a very mild mannered person. He was so upset that I stepped behind my desk because I was afraid that he might hit me and he began ranting and raving about the fact that he could not erase the Harvard Graphics software in his computer because it would wipe out years of work. I told him that the software was illegal software and he indicated to me that he did not feel it was illegal. He stated that he got the software from someone in Division 3 and indicated to me, he did not feel that he needed a license for the software. During the conversation, Monica Finley Williams, Secretary to Deputy Assistant Director Nick O'Hara, walked into the room and upon observing Neu's actions, immediately turned and walked out. I later talked to her and she indicated that Neu was extremely mad.


Neu did not physically touch me nor did he threaten me in anyway. I would characterize his demeanor as being extremely mad and I believe that he was venting his anger on me. I did feel intimidated by him since he was yelling at me but again no threats or physical contact occurred.


* * * * *


I have since spoken with and worked with Kenneth Neu, who was very pleasant to me. There does not appear to be any animosity towards me. I have not received any other retribution that I am aware of due to my efforts to address the software problems with the Criminal Investigation Division.


Cheryl Whitehurst added that her supervisors also later spoke with Neu and Neu's unit chief about the incident.


Steve Largent, the case agent in the FBI OPR assigned to the investigation, told us that he investigated the charges by obtaining this statement from Cheryl Whitehurst and gathering other pertinent documents. Largent stated that he then referred the matter to the DOJ OPR pursuant to the FBI's normal practice in cases involving possible criminal conduct. DOJ OPR attorney David Bobzien told us that he then reviewed this material and determined that Neu had not engaged in serious misconduct and that there was no need for further investigation. According to Bobzien, he reached those conclusions because Neu did not physically threaten Cheryl Whitehurst or have physical contact with her. Bobzien indicated that no one encouraged him to close down the investigation and that he would have considered any attempt to influence him to be improper. Both Bobzien and Largent denied any intention to retaliate against Frederic or Cheryl Whitehur st.


This evidence does not substantiate the claim that the FBI OPR, or the DOJ OPR for that matter, sought to retaliate against Frederic or Cheryl Whitehurst by ignoring the assault allegations. DOJ OPR attorney David Bobzien simply reached the conclusion that the facts did not establish criminal conduct warranting further action. While this conclusion is supportable, we think that the FBI OPR can be faulted for failing to interview Neu about his conduct toward Cheryl Whitehurst. Largent told us that he did not interview Neu because Cheryl Whitehurst indicated in her statement that she had not been assaulted by Neu. In her statement, however, Cheryl Whitehurst stated, . . . I stepped behind my desk because I was afraid that he might hit me. . . . This statement suggested that she believed she had been assaulted by Neu, contrary to Largent's asserti on. In view of that statement, we think that a thorough investigation would have included an interview of Neu about his conduct and presentation of that interview to the DOJ OPR for consideration.


Whitehurst also makes other claims of misconduct. He charges that Koletar committed a clear obstruction of justice by ordering the removal of unauthorized software, thereby destroying evidence which would have been relevant in [sic] criminal investigation. Whitehurst assumes without basis that the use of unlicensed software in these circumstances was a criminal violation. Contrary to Whitehurst's suggestion, not every unauthorized use of software rises to the level of criminal conduct. In any event, Koletar told us that before issuing his March 18, 1991, memorandum, he brought the matter to the attention of FBI OPR and learned that the allegations did not rise to the level of an OPR matter. Likewise, David Bobzien of DOJ OPR concluded that the use of unlicensed software within the CID was at most a technical violation. Even Cheryl Whitehurst viewed the matter as an administrative or management problem. We find Whitehurst's allegation that Koletar obstructed a possible criminal investigation to be baseless.


Whitehurst also claims that beginning in the fall of 1992, Assistant Section Chief James Summerford harassed Cheryl Whitehurst because she had reported the alleged software abuse. Our investigation showed that in September 1992, Summerford sent two memoranda to Section Chief Koletar regarding interpersonal problems between Cheryl Whitehurst and other CID personnel. In September 1992, Cheryl Whitehurst sent Koletar her own memorandum in response. Additionally, although Summerford rated Cheryl Whitehurst exceptional overall in her December 31, 1991, performance evaluation, he rated her only fully successful overall in her December 31, 1992, performance evaluation.


Contrary to Whitehurst's suggestion, this evidence does not show that Cheryl Whitehurst's complaints about unlicensed software caused Summerford to retaliate against her. Summerford's memoranda and performance evaluations criticize Cheryl Whitehurst based on her skills in getting along with other CID personnel, not for raising allegations concerning illegal software use. In fact, Summerford told us that he believed that Cheryl Whitehurst had properly reported the software abuse. As some evidence of that assertion, Summerford gave Cheryl Whitehurst the highest rating possible -- exceptional -- in her December 31, 1991, performance evaluation, well after she raised the software issues. Koletar also told us that in his view , it was appropriate for Summerford to write such memoranda based on repeated complaints from CID personnel about Cheryl Whitehurst. Koletar stated that he had no reason to believe that Summerford's actions were retaliatory. Even Chris Belan, Cheryl Whitehurst's co-worker who was highly critical of Summerford's management style, stated that he could not say that Summerford's treatment of Cheryl Whitehurst was motivated by her allegations of illegal software use. In sum, the evidence did not support Whitehurst's allegations that Summerford acted to retaliate against Cheryl Whitehurst.


Whitehurst further alleges that during a review of these allegations in 1994 by the Office of General Counsel (OGC), Principal Deputy General Counsel Steven Robinson ignored his allegations and refused even to take notes about the alleged assault. Robinson told us that he stopped taking notes because Whitehurst appeared to be having a flashback during the discussion. Specifically, according to Robinson, Whitehurst began speaking emotionally about Vietnam, started rocking back and forth, and stated that he would shove a knife up any person who would assault his wife. Associate General Counsel John Sylvester, who was present, also recalled that Whitehurst became upset during this discussion and started talking about Vietnam. Robinson and Sylvester later reported that no further action was warranted by the OGC in view of the conclusions that had been reached by FBI OPR and DOJ OPR. We do not think that Robins on or Sylvester ignored Whitehurst's allegations, but simply reached a conclusion that FBI OPR had properly conducted and closed the investigation.


In sum, we conclude that the evidence did not support Whitehurst's allegations.


C. Referral for Psychiatric Examination and Counseling


Whitehurst alleges that in 1993 the FBI ordered him to undergo psychiatric evaluation and therapy in retaliation for raising various allegations.


In order to investigate Whitehurst's claim, we reviewed pertinent reports and correspondence regarding Whitehurst's referral to psychiatric evaluation and counseling and pertinent provisions of the FBI Manual of Administrative Operations and Procedures. We also reviewed pertinent portions of the transcript of Whitehurst's testimony at the Darryl Green case. We further interviewed Assistant United States Attorney Rachel Adelman Pierson and Detective Robert Rice from the Darryl Green case; Laboratory personnel including John Hicks, Kenneth Nimmich, Alan Robillard, and James Corby; and former Section Chiefs of the FBI Personnel Recruiting and Benefits Section, Thomas Pickard and Richard Hildreth.


We also interviewed Joan Earnshaw from the FBI Employee Assistance Program (EAP) and Margaret Grey from the FBI Health Care Program Unit (HCPU) generally about FBI practices with respect to psychological counseling and limited duty status. However, we were not able to interview these witnesses or other relevant personnel from the EAP (Sheron Finister) and HCPU (Adele Miller) specifically about Whitehurst. These witnesses advised us that they would only discuss matters relating to Whitehurst if we obtained an express medical release from Whitehurst. Whitehurst and his attorney refused to provide such a release despite our repeated requests. At Whitehurst's request, we also attempted to interview psychologist Dr. Edwin N. Carter, but Dr. Carter did not return our many telephone calls.


Because we view these witnesses as important to the retaliation issue, we could not reach definite conclusions regarding these allegations. However, our investigation has failed to disclose any retaliatory purpose, as alleged by Whitehurst.


1. Factual Background


In 1992, the United States Attorney's Office in the District of Columbia tried a felony child abuse case in the Superior Court. The defendant, Darryl Green, was charged with burning a seven-year-old girl by placing a heated Bic lighter against her inner thigh. The defendant maintained that he had only briefly touched the child with the lighter. To test the lighter's capacity to burn skin, the detective in the case, Robert Rice, contacted the FBI Laboratory.


Rice spoke with Whitehurst and asked to use a thermocouple, a device used for testing the temperature of objects. Whitehurst told Rice that the Laboratory did not have a thermocouple, and stated, Let's see what we can do. Whitehurst then activated the lighter, turned it upside down to heat the metal collar for approximately one minute and one-half, and pressed the metal collar against his inner forearm for approximately 30 seconds, leaving a horseshoe shaped burn approximately the size of a quarter. While accounts vary, it appears that Whitehurst burned himself in the presence of Rice, Unit Chief Jim Corby, and another technician in the MAU. Later that day, Whitehurst exhibited that burn to the jury.


SAS Assistant Section Chief Alan Robillard stated that when he heard that Whitehurst had burned himself, he was appalled. Robillard met with Whitehurst and expressed his disapproval. During the conversation Whitehurst reportedly became distraught and started talking about Vietnam and veterans issues, incompetent personnel in the Explosives Unit, Terry Rudolph, and Whitehurst's wife. According to Robillard, Whitehurst appeared to be on the verge of a nervous breakdown. Robillard told us that, as a result, he reported these events to SAS Chief Nimmich and possibly Laboratory Director Hicks.


After hearing about the burning incident, Nimmich spoke with an EAP counselor about Whitehurst. Nimmich stated that he took this step because the burning incident constituted a total anomaly from standard laboratory practice, health and safety . . . . Nimmich told us that he was concerned because Whitehurst appeared to be under considerable stress and had become very emotional during recent conversations with Nimmich. As a result of Nimmich's conversation with the EAP counselor, the EAP reported the matter to Margaret Grey, the Unit Chief of the FBI Health Care Program Unit (HCPU). Nimmich and Grey later discussed the matter and, according to Nimmich, agreed that Whitehurst should be referred for a psychiatric examination. According to Whitehurst, EAP counselor Joan Earnshaw told him that he needed to go for the examination. Whitehurst told us that he did not take issue with this referral for psychiatric examination.


On December 3, 1992, Whitehurst was examined by Dr. Alen Salerian, the psychiatric consultant to the EAP. Salerian found no evidence of overt psychiatric disorder. However, due to the nature of Whitehurst's recent actions and Salerian's conversations with Whitehurst and Nimmich, Salerian strongly recommended that Whitehurst either receive a voluntary psychiatric evaluation or be referred for a fitness-for-duty evaluation.


As a result of Dr. Salerian's recommendation, on January 19, 1993, Thomas Pickard, Section Chief of the Personnel Recruiting and Benefits Section, referred Whitehurst to the Isaac Ray Center in Chicago for a psychiatric examination and psychological assessment. Although the letter referring Whitehurst to Chicago stated that the examination was mandatory, Pickard told us that he understood that Whitehurst voluntarily agreed to go to this examination. Whitehurst also told us that he voluntarily went to Chicago for evaluation, although he was not crazy about it.


Whitehurst was evaluated in Chicago by Drs. Jonathan Kelly and Orest Wasyliw on February 9, 1993. Kelly and Wasyliw prepared reports in which they found that Whitehurst was fit for duty and did not manifest any psychological illness that substantially impaired his functioning as a special agent. However, due to certain personality features, Kelly observed that Whitehurst would benefit from a course of voluntary psychotherapy, and Wasyliw likewise recommended such counseling for Whitehurst to deal with current tensions and increase his range of coping resources. Wasyliw also commented that the Bureau would do well to find ways to give Whitehurst an occasional rest.


After receiving these evaluations, Grey prepared an April 23, 1993, memorandum to the Laboratory Division that included two recommendations: (1) that the Laboratory place Whitehurst on limited duty status, evaluate his work assignments to reduce external stress, and monitor his behavior, and (2) that Whitehurst seek psychotherapy with monthly feedback to the HCPU. Pickard told us that he personally made the recommendations in Grey's memorandum.


On May 12, 1993, Whitehurst met with Pickard to appeal these recommendations. Although Whitehurst and Pickard report somewhat differing versions of the meeting, it appears that at the conclusion, Whitehurst indicated that he would attend counseling and Pickard agreed to later re-evaluate his recommendations based on the input from Whitehurst's therapist.


Whitehurst subsequently met for several sessions with psychologists Donald R. Soeken and Edwin N. Carter. The evidence indicates that Whitehurst selected these psychologists himself. During the course of this psychotherapy, Soeken and Carter sent letters reporting on Whitehurst to Adele Miller, supervisor of the Fitness-for-Duty Subunit of the HCPU. In a November 17, 1993, letter, Carter advised Miller that Whitehurst was fit to perform his job. Furthermore, Carter stated that nothing in the earlier reports or current data suggested that Whitehurst should be compelled to participate in therapy. In a January 21, 1994, letter, the FBI advised Whitehurst that in view of Carter's comments and a concurrence by Salerian, Whitehurst would no longer be required to attend regular psychotherapy sessions.


2. Analysis


Whitehurst's conduct in burning himself was highly questionable for several reasons. Whitehurst's experiment was clearly outside of his expertise and did not follow any scientific protocol. It is especially troubling that Whitehurst chose to experiment on himself, since we understand that Whitehurst could have contacted a pathologist at the Armed Forces Institute of Pathology for expertise concerning burned skin. Moreover, despite Whitehurst's suggestion that the situation required his immediate action, it appears that no one compelled or even encouraged Whitehurst to conduct such an experiment. In fact, Rachel Adelman Pierson, the AUSA who prosecuted the Darryl Green case, expressed surprise that Whitehurst would burn himself without first speaking with her. While Pierson clearly appreciated Whit ehurst's actions to assist in the case, she also stated that she was not surprised that the FBI referred Whitehurst for counseling based on this incident.


In view of the unusual nature of Whitehurst's conduct and Dr. Salerian's recommendation, we do not think that Personnel Section Chief Thomas Pickard acted unreasonably in referring Whitehurst for a fitness-for-duty evaluation. Applicable regulations permitted the FBI to refer an employee for a fitness-for-duty examination when there was a question about the employee's capacity to meet medical requirements of the position. The regulations further specified:


An agency may order a psychiatric examination (including a psychological assessment) only when: (i) The result of a current general medical examination which the agency has the authority to order under this section indicates no physical explanation for behavior or actions which may affect the safe and efficient performance of the individual or others . . . .


In his letter referring Whitehurst to Drs. Kelly and Wasyliw, Pickard cited this provision and stated that the FBI had reviewed Whitehurst's medical history and Dr. Salerian's letter. Pickard stated in that letter that due to Whitehurst's behavior and questionable judgment, Pickard was requesting that Whitehurst report for a psychiatric examination. Pickard likewise told us that he relied on Dr. Salerian's recommendation in referring Whitehurst to this psychiatric fitness-for-duty examination. Whitehurst's actions implicated the safe performance of his duties; therefore, we conclude that the evidence supported Pickard' s actions.


We also cannot conclude that individuals within the Laboratory Division, specifically Hicks, Robillard, and Nimmich, acted with the intent to retaliate against Whitehurst by referring him for psychiatric counseling. Hicks essentially played no role in this matter. Hicks recalled learning about the matter from someone with the EAP. He determined that the matter should be handled by the Administrative Services Division/Personnel Section and the Health Care Program Unit. Our interviews of Pickard and others confirmed that Hicks did not play a role in any subsequent decisions.


Robillard played only a minor role in Whitehurst's referral for psychiatric evaluation. Specifically, Robillard said he told Nimmich and Hicks about the burning incident and about his emotional conversation with Whitehurst. Robillard told us that he took this action because he was concerned that Whitehurst was distraught and in turmoil during their conversation. We think that Robillard was justified in notifying an EAP counselor about Whitehurst.


Likewise, we find no evidence that Nimmich sought to retaliate against Whitehurst. Nimmich reported the matter to an EAP counselor and discussed the matter with Margaret Grey of the HCPU. Nimmich said he became concerned because he considered the burning incident to be a sign of significant stress. According to Nimmich, he worried about Whitehurst's judgment in deciding to burn himself, rather than conduct a true scientific test. Furthermore, Nimmich stated that he was aware that Whitehurst was under considerable stress because of his efforts to adopt a child, address his wife's work-related problems, attend law school, and work through a tremendous backlog of cases. Nimmich reported that during this time, Whitehurst would become tearful and emotional due to this stress. We do not find any apparent retaliatory motive in Nimmich's conduct.


Absent the necessary medical release forms from Whitehurst, we were not able to assess the roles and motives of EAP counselor Joan Earnshaw, EAP Administrator Sheron Finister, or HCPU Unit Chief Margaret Grey in referring Whitehurst to psychiatric evaluation by Dr. Salerian or in recommending psychological counseling and limited.duty.


We also sought to assess the motivations of Pickard in recommending that Whitehurst be placed on limited duty status and undergo continuing therapy. Pickard told us that he made these recommendations based on the reports of Drs. Kelly and Wasyliw, after speaking with his Assistant Section Chief, Margaret Grey of the HCPU, and Sheron Finister of the EAP. According to Pickard, at the time he made these decisions he was not aware of Whitehurst's complaints to FBI OPR. Pickard also told us that he had no reason to retaliate against Whitehurst. Pickard further specifically denied that he was influenced by anyone from the Laboratory Division or from FBI OPR in making these decisions. We note that Pickard's recommendations -- that Whitehurst seek therapy and that his work assignments be evaluated to reduce external stress -- generally were consistent with the recommendatio ns of Drs. Kelly and Wasyliw. Thus, based on this evidence we do not conclude that Pickard sought to retaliate against Whitehurst in making these decisions.


We note that James Corby expressed a different view of this matter. Corby told us that he thought that referral for psychiatric care was one of the ways that the Bureau had of punishing people. Regarding whether the FBI had punitively referred Whitehurst to psychiatric care, Corby stated, I don't have proof of that, but I think it was, yes. It is difficult to credit this assertion by Corby, however, because he did not possess any personal knowledge of such retaliatory action. Corby acknowledged that he did not participate in the decisions regarding Whitehurst's referral to psychiatric evaluation or counseling. Nor did Corby know the official reason for Whitehurst's referral to counseling. Moreover, despite Corby's assertion, he could not identify any other instance in which the FBI reportedly punished anyone in this fashion. Finally, Corby's reasons for concluding that the FBI acted punitively were obtuse: He pointed to the fact that the FBI had used a bureau psychologist or psychiatrist and had required Whitehurst to pay for ongoing therapy. We find Corby's assertions to be unconvincing.


In addition to the general allegation of retaliatory purpose, Whitehurst makes a number of specific allegations. Whitehurst alleges that the FBI acted without authorization in requiring him to participate in psychotherapy. Grey told us that the FBI considers mandatory psychotherapy to be a medical mandate that could be imposed only by a physician. The applicable provision of the FBI Manual for Administrative Operations and Procedures (MAOP) provided in part:


Medical mandates (restrictions) are assigned by the Bureau's Chief Medical Officer (CMO), the Bureau physician, or a private physician utilized by the employee when he/she has an illness, injury, physical/medical or mental condition that precludes or limits their ability to perform the expected duties of their position.


MAOP Part I, Section 20-5.2.1 (eff. 3/26/92). The evidence shows that none of the medical personnel listed above authorized mandatory psychotherapy for Whitehurst. Drs. Kelly and Wasyliw merely recommended voluntary counseling. Accordingly, if the FBI compelled Whitehurst to attend psychotherapy without the authorized medical mandate, the FBI would have violated its own policy.


Our investigation disclosed differing views as to whether the FBI compelled Whitehurst to attend psychotherapy or Whitehurst agreed to attend these sessions voluntarily. Pickard acknowledged that he did not have the authority to order Whitehurst to attend psychotherapy and specifically denied doing so. Pickard stated that while he could order Whitehurst to complete a fitness-for-duty examination, he could only encourage Whitehurst to seek counseling following that examination. As evidence of the non-mandatory nature of the counseling, Pickard pointed to the April 12, 1993, memorandum from the HCPU to the Laboratory Division, which only recommended that Whitehurst seek psychotherapy. Pickard told us that after he discussed this recommendation with Whitehurst on May 12, 1993, Whitehurst voluntarily agreed to seek counseling. SAS Chief Kearney likewise told us that he spoke with Whitehurst about the recommendation, and Whitehurst agreed to attend counseling.


On the other hand, it appears that Dr. Carter and Adele Miller of the HCPU understood that the FBI had required Whitehurst to attend these counseling sessions. Carter stated in a November 17, 1993, letter to Miller: It seems to me that the requirement that Mr. Whitehurst continue in an ongoing psychotherapy program as a condition of his continued employment is unnecessary. Moreover, Miller sent a January 21, 1994, letter to Whitehurst stating:


In his report dated November 17, 1993, [Dr. Carter] states that you are capable of resuming your full time duties and responsibilities without limitations or restrictions, as a Special Agent, and you will no longer be required to attend regular psychotherapy sessions.


(Emphasis added).


According to this evidence, the FBI may have advised Whitehurst that he was required to attend psychotherapy sessions. Because we were not able to speak with HCPU personnel -- and especially Adele Miller -- about this subject, however, we could not reach a definite conclusion as to whether the HCPU failed to follow FBI regulations or whether that failure resulted from a retaliatory purpose.


Whitehurst also claims that the FBI improperly required him to pay for his psychotherapy sessions. When questioned concerning this claim, both Pickard and Grey told us that as a general rule, the FBI only covers the cost of fitness-for-duty examinations. According to Pickard and Grey, an FBI employee who is fit-for-duty is responsible, either directly or through health insurance, for the cost of treating any medical or psychological condition. We found support for this policy in the MAOP, which provided in part:


Once a medical examiner has made a fitness-for-duty determination and has completed the medical report, any recommendation for additional examinations, repeat or follow-up tests or other medical action will be paid by the Bureau when such recommended action is for the purpose of determining whether such malady exists and is solely to determine the employee's fitness for duty. Once a determination of fitness for duty is made, any additional examinations(s) is considered treatment and will not be recompensed.


MAOP, Part I, Section 20-5.1.5 (eff. 3/26/92)(emphasis added). It appears that under this policy, Whitehurst was responsible for the cost of treatment after Drs. Kelly and Wasyliw found Whitehurst to be fit-for-duty.


Finally, Whitehurst claims that Adele Miller, the occupational nurse from the HCPU who monitored his ongoing therapy, abused her authority in several respects. We were not able to reach any conclusion about this allegation because Whitehurst did not provide a medical release form as requested.


In sum, we conclude that Laboratory personnel did not act with a retaliatory purpose in referring this matter to the HCPU and EAP. However, because Whitehurst did not provide the necessary medical release forms to allow us to interview key personnel with the HCPU, EAP, and Personnel Section, we cannot reach a definite conclusion concerning their motives in referring Whitehurst to psychotherapy.


D. The Claim that the FBI Improperly Investigated Whitehurst for Disclosure of Confidential Information


Whitehurst alleges that FBI OPR improperly initiated an investigation into his disclosure of information to the Senate Judiciary Committee.

In connection with this matter, we obtained and reviewed the complete FBI OPR file in its investigation. We also interviewed FBI OPR case agent Sarah Pickard, FBI OPR Unit Chief Ralph Regalbuto, and DOJ OPR Assistant Counsel Judith Wish.


Our investigation did not substantiate Whitehurst's allegations.


1. Factual Background


On January 26, 1993, a representative from the FBI Inspection Division, Office of Planning, Evaluation and Audits (OPEA), interviewed Whitehurst as part of an evaluation project conducted by that Office. During that interview, Whitehurst raised concerns about widespread voucher fraud, incompetence, inadequate protocols, backlogged cases, and safety problems in the Laboratory Division. He also complained of bootlegged copies of computer software in the Laboratory and Criminal Investigative Divisions. Whitehurst further reported that he had made copies of the content of computers in these Divisions and forwarded this information to Senator Joseph Biden for further examination.


As a result of this interview, on February 9, 1993, FBI OPR case agent Sarah Pickard opened an investigation into Whitehurst's allegations of voucher fraud. Pickard later spoke with FBI OPR Unit Chief Ralph Regalbuto, who agreed that Whitehurst also should be questioned about his possible unauthorized disclosures of confidential FBI records to Senator Biden, Chairman of the Senate Judiciary Committee.


On April 6, 1993, Pickard interviewed Whitehurst about the alleged voucher fraud and possible unauthorized disclosures of case information to the Senate Judiciary Committee. According to the statement later prepared by Pickard based on this interview, Whitehurst stated that he lacked any specific knowledge about voucher fraud in the Laboratory Division. Whitehurst also reportedly acknowledged sending two letters to the Senate Judiciary Committee in the fall of 1992, the first concerning the alleged computer software theft within the Criminal Investigative Division and the second concerning Terry Rudolph. According to the statement, Whitehurst denied that he provided any information from Bureau files to the Senate Judiciary Committee. Pickard subsequently requested that Whitehurst read and sign the written statement, but Whitehurst refused to do so because the FBI OPR would not permit prior review of the statement by Whitehurst' s attorney.


Pickard thereafter sought information about Whitehurst's disclosures to the Senate Judiciary Committee directly from Judiciary Committee staff. Pickard told us that she sought to verify that Whitehurst had not made unauthorized disclosure of FBI information to the Committee. A representative from the Judiciary Committee refused to disclose Whitehurst's letters to the Committee, citing concerns about constituent confidentiality. After several months, the FBI OPR decided not to further pursue the matter with the Judiciary Committee.


Because FBI OPR developed no facts warranting administrative action, the FBI Personnel Management Section (Former Personnel Benefits and Recruiting Section) notified Whitehurst in late-August 1994 that the administrative inquiry would be closed.


2. Analysis


The evidence did not support Whitehurst's allegation that FBI OPR acted in retaliation by investigating possible unauthorized disclosures to the Senate Judiciary Committee.


The evidence shows that a factual basis existed for believing that Whitehurst may have made an unauthorized disclosure of Bureau information. Specifically, the OPEA reported that Whitehurst had stated during his January 26, 1993, interview that he had copied the contents of computers in the Laboratory and Criminal Investigative Divisions as evidence of alleged software theft. Whitehurst also reportedly told the OPEA that because FBI OPR did not take his allegations seriously he forwarded this information to the Senate Judiciary Committee. Thus, Whitehurst's own statements to the OPEA at least raised the possibility that he violated FBI rules and regulations through the unauthorized release of Bureau records. See MAOP Part 1, Section 1-19(2); FBI Standard Employment Agreement, FD-291. Although Whitehurst denied that he made any unauthorized disclosures, FBI OPR was not required to accept Whitehurst's assertion especially after he refused to sign the statement taken from him by FBI OPR.


When questioned regarding their motives, both FBI OPR case agent Sarah Pickard and FBI OPR Unit Chief Ralph Regalbuto told us that the FBI OPR decided to inquire into possible unauthorized disclosures based on the foregoing facts. Pickard denied that she or Regalbuto had any motive to retaliate against Whitehurst. Regalbuto told us that he had no basis to believe that Pickard sought to retaliate against Whitehurst. Likewise, they denied that anyone from the Laboratory or Criminal Investigative Division encouraged them to inquire into possible unauthorized disclosures by Whitehurst. Pickard and Regalbuto also told us that under the circumstances, they thought it was appropriate to close the investigation without a finding that Whitehurst made unauthorized disclosures. We find no reason to believe that FBI OPR acted with retaliatory motives.


We also find no basis to conclude that FBI OPR acted improperly in refusing to permit Whitehurst's attorney to review his statement before Whitehurst signed it. Our investigation showed that Pickard conducted her interview as an administrative inquiry. As such, Whitehurst received immunity from criminal prosecution and had a duty to cooperate. Under these circumstances, FBI regulations provided that an employee does not have a right to legal representation in connection with the interview. See MAOP, Part I, Section 13-6.2(4); MIOG 263-5.2(4). Furthermore, the FBI has guidelines providing that an employee's attorney is not permitted to review materials in conjunction with a disciplinary investigation unless such materials were first reviewed and redacted by the Civil Discovery Review Unit (CDRU) of the Legal Counsel Division. The evidence showed that Pickard e xplained these provisions to Whitehurst, and the FBI provided copies of these regulations to Whitehurst's counsel. We see no retaliatory purpose in these actions.


E. The Claim that the FBI Improperly Disclosed Henthorn Material Concerning Whitehurst


Whitehurst alleges that FBI OPR improperly disclosed derogatory information about him in the World Trade Center and Simpson cases.


We obtained and reviewed copies of the materials that the FBI released in the World Trade Center and Simpson cases. We also obtained and reviewed the CDRU case management sheet and logs, which described the CDRU's document review process in detail. We further interviewed various FBI personnel, including General Counsel Howard Shapiro, Deputy General Counsel Thomas Kelley, former Principal Deputy General Counsel Steven Robinson, CDRU Supervisory Paralegal Specialist Patricia Giannico, AUSAs Paul Gardephe and Gil Childers of the Southern District of New York, OPR Unit Chief Ralph Regalbuto, and former MAU Unit Chief James Corby.


The evidence shows that the FBI did not improperly disclose derogatory information about Whitehurst in these cases.


1. Factual Background


a. World Trade Center Case


In January 1994, prosecutors in the World Trade Center case in New York identified Whitehurst as a possible witness in the case. AUSA Paul Gardephe of the Southern District of New York asked the FBI to review Whitehurst's personnel file for possible Brady and Giglio material. In response, Thomas Kelley, Deputy Assistant Director of the Legal Counsel Division, directed the Civil Discovery Review Unit (CDRU) to conduct a so-called Henthorn review of Whitehurst's files. Supervisory Paralegal Specialist Patricia Giannico and Paralegal Vickie Hayden of the CDRU reviewed various personnel and OPR files and identified 27 pages of responsive documents (Package 1). After the CDRU redacted confidential and sensitive information in Package 1, the FBI provided copies of the se documents to AUSA Gardephe.


On January 13, 1994, AUSA Gardephe traveled to the FBI Headquarters and personally reviewed Whitehurst's administrative and personnel files. Gardephe selected an additional 89 pages of documents from these files. The CDRU again redacted confidential and sensitive information from these documents, and the FBI provided copies of the documents to AUSA Gardephe (Package 2).


The prosecution ultimately decided not to call Whitehurst to testify in the case. According to World Trade Center case prosecutor Gil Childers, prosecutors released only part of these materials to the defense and did not disclose any records relating to Whitehurst's psychological evaluation.


b. Simpson Case


During the trial of People v. Orenthal James Simpson in Los Angeles in September 1995, Simpson's defense counsel provided notice that they intended to call Whitehurst to testify that Roger Martz routinely biased results in favor of the prosecution. In response, Los Angeles District Attorney Gil Garcetti requested impeachment material about Whitehurst from the FBI. Specifically, Garcetti asked for materials to be used to cross-examine Whitehurst from personnel files, or other files, memoranda, or reports involving the performance, competence, or discipline of Special Agent Whitehurst. Garcetti also requested the opportunity to review documents and conduct interviews of FBI personnel relating to any acts of perjurious conduct, acts of dishonesty or any acts which impact on the credibility of SSA Whitehurst.


The FBI treated Garcetti's letters as a request for Henthorn materials. A CDRU employee reviewed Whitehurst's personnel files from the date of the prior Henthorn Review, but reported finding no additional Brady or Giglio material. FBI Principal Deputy General Counsel Steven Robinson provided the Henthorn material from the World Trade Center case (both Packages 1 and 2) to prosecutors in the Simpson case. These records were released to the defense. Judge Lance Ito later ruled that Whitehurst would not be permitted to testify.


2. Analysis


The evidence does not show that the FBI selected the Henthorn materials with a retaliatory intent.


The OGC selected and released these documents only in response to specific requests from prosecutors. The evidence showed that employees with the CDRU conducted the review for Henthorn material as they would in any other case. Both CDRU Supervisory Paralegal Specialist Patricia Giannico and AUSA Paul Gardephe denied selecting documents to unfairly malign Whitehurst and denied being aware of any attempt by others to unfairly select these Henthorn materials. OGC attorney Steven Robinson told us that he did not review or even discuss the documents before providing them to the Simpson prosecutors. We see nothing in these circumstances to suggest that the FBI released these documents for a retaliatory purpose.


Most importantly, our review of the documents themselves did not suggest that the FBI acted with an improper purpose. In conducting this review, we kept in mind that the purpose of a Henthorn review is to identify documents that might be used to impeach a law enforcement witness at trial. By definition, Henthorn materials cast an unflattering light on such a witness.


Package 1, which was selected by employees with the CDRU, primarily included materials from FBI OPR investigation in the Psinakis matter. These materials included ASU case agent Gullota's report, which accurately restated Whitehurst's own version of the facts. The materials also included statements of AUSA Burch complimenting Whitehurst's performance and conduct in the case. The materials further included Hicks' memorandum recommending a reduced sanction, which also placed Whitehurst's actions in a more flattering light. Thus, the materials in Package 1 included a balanced version of the Psinakis matter. These materials were appropriately disclosed.


Package 1 also included the April 23, 1993, memorandum from Margaret Grey of the HCPU to the Laboratory Division, recommending psychotherapy and limited duty status. In view of this letter, Whitehurst contends that the FBI also should have released a November 17, 1993, letter from psychologist Edwin Carter to the FBI, stating that Whitehurst should not be required to participate in psychotherapy, and a January 21, 1993, letter from the FBI to Whitehurst, terminating his referral to psychotherapy. In response to a request for Henthorn materials, the FBI was required to produce documents containing possible impeachment material. Thus, it was not necessary to provide Carter's November 17, 1993, letter. That letter also contained a detailed psychological profile of Whitehurst that would have raised privacy concerns. However, for the sake of completeness, it would have been appropriate for the FBI to notify prosecutors that t he recommendations in the April 23, 1993, memorandum had been terminated. Deputy General Counsel Thomas Kelly, who reviewed these materials before their release, told us that he was not aware of the letter terminating Whitehurst's referral to psychotherapy. Kelly added that he would have released the letter had he seen it. Under the circumstances, we do not find any retaliatory purpose in the failure to release this letter.


Package 2 included materials from the FBI OPR investigations into allegations concerning the Psinakis case, Terry Rudolph, computer software theft and assault, and unauthorized disclosures by Whitehurst. Because AUSA Gardephe personally selected these documents, it is difficult to argue that these documents evidence an improper purpose on the part of the FBI. Furthermore, our review of Package 2 documents shows that these records did not present a biased picture of the OPR investigations. For example, these records also included Whitehurst's own version of the events underlying each of the OPR matters.


In sum, we conclude that the evidence does not substantiate Whitehurst's allegations of retaliation in connection with the release of Henthorn materials.

F. The Claim that the FBI Punished Whitehurst by Reassigning Him to the Paints and Polymers Program


Whitehurst alleges that in May 1994, the FBI reassigned him from the explosives residue program to the paints and polymers program to punish him for reporting misconduct in the Laboratory Division and especially in the Explosives Unit.


In connection with this allegation, we reviewed pertinent memoranda relating to transfer and reassignment of personnel in the SAS. We also reviewed Whitehurst's personnel file. Further, we interviewed the following FBI personnel: Acting Laboratory Director Donald Thompson, former Laboratory Directors John Hicks and Milton Ahlerich, former SAS Chiefs James Kearney and Kenneth Nimmich, current SAS Chief Randall Murch, former MAU Unit Chief James Corby, explosives residue examiner Steven Burmeister, CTU examiner Drew Richardson, former explosives residue chemists Kelly Mount, Mary Tungol, and Monica Knuckles, former Explosives Unit technician Amy Sirignano, FBI General Counsel Howard Shapiro, former Principal Deputy General Counsel Steven Robinson, former OGC attorney John Sylvester, and OGC attorney Laura Blumenfeld.


The evidence does not support Whitehurst's allegation.


1. Factual Background


In October 1993, FBI Deputy Director Floyd Clarke instructed the Laboratory Division to provide a plan for reorganization as part of the general reorganization of FBI Headquarters. Pursuant to this reorganization plan, target staffing levels required that the Laboratory reduce its personnel by 65 special agents and support staff within two fiscal years. To accomplish this, Laboratory management prepared a report entitled, Mandated Personnel Reductions and Organizational Restructuring, which proposed the elimination of numerous personnel, the consolidation of units, and a reduction in non-critical services. With respect to the Scientific Analysis Section (SAS), that report proposed that the Elemental and Metals Analysis Unit (EMAU) be merged into the Materials Analysis Unit (MAU) under Unit Chief James Corby. In order to ba lance the workload of the MAU, Laboratory management further proposed that the explosives residue program, then comprising two special agent examiners (Frederic Whitehurst and Steven Burmeister) and two support technicians (Monica Knuckles and Kelly Hargadon Mount), be moved from the MAU to the Chemistry-Toxicology Unit (CTU) under Unit Chief Roger Martz.


In a June 14, 1994, memorandum, SAS Chief James Kearney announced the transfer of the explosives residue program to the CTU. Kearney further announced, apparently for the first time, that Whitehurst would remain in the MAU and that the CTU would qualify a second explosives residue examiner. Kearney added that Whitehurst would continue to be involved in the area of explosive residue analysis, however, his duties will be focused primarily on research studies and the training/qualifying of new examiners. Kearney noted that Whitehurst also would continue to manage the Explosive Analysis Database Program, at least temporarily.


Subsequently, in late-1994, MAU examiner SSA Richard Buechele, the Laboratory's primary paint and polymer examiner, announced his departure for a field assignment. Corby assigned Whitehurst to conduct examinations of paints, polymers, plastics, cosmetics, adhesives and tapes in view of Buechele's departure.


2. Analysis


The evidence does not support Whitehurst's claim that the FBI sought to punish him by moving the explosives residue program from the MAU to the CTU, by keeping Whitehurst in the MAU, or by reassigning Whitehurst to the paints and polymers program within the MAU.


Substantial evidence shows that SAS Chief James Kearney was responsible for the decision to move the explosives residue program while keeping Whitehurst in the MAU. Kearney told us that he personally made these decisions after consulting with MAU Unit Chief James Corby. Laboratory Director John Hicks, confirmed that Kearney made the decision to reassign Whitehurst. Our investigation also showed that MAU Chief Corby made the decision to assign Whitehurst to paints and polymers.

Because these decisions were based on different considerations, we analyze these decisions separately in the following sections.


a. Movement of the Explosives Residue Program


The decision to move the explosives residue program to the CTU was unrelated to Whitehurst.


SAS management announced its plan to move the explosives residue program to the CTU in the November 1993 report, Mandated Personnel Reductions and Organizational Restructuring. According to that plan, one of the purposes of this move was to assist in balancing the workload of the MAU and CTU following the merger of the EMAU into the MAU in early-1994. Our investigation shows that absent the movement of the explosives residue program to the CTU, the proposed merger would have resulted in a sizable difference in staffing between the MAU and CTU. Specifically, in fiscal year 1994, the MAU would have had a total of 24 special agent and support personnel and the CTU would have had a total of 14 special agent and support personnel. With the movement of the explosives residue program, staffing levels in the MAU and CTU were established at 20 and 18 persons, respectively.


Additionally, with the merger of the MAU and EMAU, the Unit Chief of the MAU gained a sizable increase in the areas of case responsibility:














Explosives Residue


Gunshot Residue






Bullet Lead Analysis


Inks and Dyes




Shot Lead Analysis


General Chemical Analysis




Precious Metals






Nuclear Matters


Petroleum Products






Product Tampering








Building Materials




Safe Insulation


Scanning Electron Microscopy






National Automotive Paint File











Explosives Residue (limited)






Inks and Dyes




General Chemical Analysis








Petroleum Products




Product Tampering




Explosives Residue


Building Materials




Safe Insulation




National Automotive Paint File


Gunshot Residue


Bullet Lead Analysis


Shot Lead Analysis


Precious Metals


Nuclear Matters








Scanning Electron Microscopy



Given this disparity in the areas covered by the CTU and MAU, it was not unreasonable to attempt to balance the size and responsibilities of the units by moving explosives residue cases to the CTU.


Another stated purpose for moving the explosives residue program was to bring the entire explosive residue examination process under the supervision of a single Unit Chief . . . [to] provide for a more effective and efficient examination process and use of personnel. Before the move, the MAU and CTU shared responsibility for explosives residue analysis in an arrangement that had drawn criticism from Whitehurst and others. Since the 1980s, the CTU had analyzed unconsumed smokeless powders and performed GC/MS analysis of various substances for other units, including the MAU. Because the protocol followed by the CTU in analyzing smokeless powders was less comprehensive than the explosive residue protocol used in the MAU, Corby and Burmeister each observed that if the CTU alone analyzed smokeless powder cases, certain substances might not be identified. This concern supported the combination of these functions under a single Unit Chief.


Despite the efficiencies achieved by placing explosives residue analysis under one unit chief, both Corby and Burmeister told us that they opposed moving the program to the CTU because Unit Chief Roger Martz did not have the background to supervise the program. We have little doubt that MAU Unit Chief Corby was more qualified by experience to supervise the explosives residue program. However, Corby planned to retire in 1995, and as Burmeister acknowledged, the Laboratory needed to find another supervisor for the program. We also note that Burmeister told us in late-December 1995, that the movement of the explosives residue program to the CTU was working.


Given the foregoing, we cannot say that the decision to move the explosives residue program to the CTU suggested a retaliatory purpose. Additionally, Kearney maintained that he did not intend to retaliate against Whitehurst when he decided to move the explosives residue program to the CTU. Likewise, Corby told us that after discussing the matter with Kearney, he did not think that Kearney decided to move the program to punish Whitehurst. The fact that the initial proposal to transfer the explosives residue program contemplated that Whitehurst would be transferred further undercuts the suggestion that the proposal was designed to punish Whitehurst.


b. Removal of Whitehurst from the Explosives Residue Program


Our investigation also shows that Kearney did not seek to punish Whitehurst by transferring him out of the explosives residue program.


Kearney told us that he made the decision to move Whitehurst because of extremely poor working relationship between Whitehurst and other personnel and units, especially the Explosives Unit. According to Kearney, these deteriorated relationships had rendered Whitehurst somewhat ineffective. Kearney further stated that he sought to eliminate friction that had developed between Whitehurst and his support personnel working with him, especially chemists Kelly Hargadon Mount and Mary Tungol. Kearney noted that he explained his reasons to Whitehurst on more than one occasion. Kearney told us that during these discussions Whitehurst agreed with Kearney's assessment that he had become somewhat ineffective and expressed relief to be out from under the pressure of these c ircumstances. According to Kearney, Whitehurst further agreed to let things cool off until he could re-build his credibility with the other Laboratory personnel.


Whitehurst confirmed that significant discord existed between him and others within the Laboratory. Whitehurst stated that a virtual war existed between himself and Explosives Unit examiners because he had stood up to these examiners. Whitehurst also confirmed that he and Kearney discussed his inability to deal with examiners in the Explosives Unit and co-workers Tungol and Mount. Whitehurst also wrote a series of memoranda to Kearney documenting his difficulties with his co-workers in the MAU. Whitehurst acknowledged that at some point, Kearney determined that he had to settle this war down. Whitehurst acknowledged that he never told Kearney that he viewed his removal from the explosive residue program as retaliation. Rather, according to Whitehurst, he told Kearney that he hated to leave explosives, but was willing to go through that wall if ordered to do so. Furthermore, Whitehurst told us that he advised Kearney that he was relieved to be out from under the pressure of the situation.


Others within the Laboratory agreed that Kearney made the decision to remove Whitehurst from the program based on problems between Whitehurst and co-workers, and not to punish him for raising allegations. Corby told us that the conflict between Whitehurst and Explosives Unit personnel had progressed to the point where each side was reluctant even to speak to one another. Corby stated that Kearney sought to diffuse this conflict by removing Whitehurst. Corby stated that he did not believe that Kearney acted to punish Whitehurst. According to Corby, Whitehurst's relationship with Explosives Unit personnel was a problem area that a manager has to deal with and the best way to do that would be to take Fred, at least temporarily, off explosive cases but I disagree with Fred's statement that it was done for -- you know, just to demote him or to punish him. Corby only took issue with the abrupt manner in which Kearney acted. Corby also observed that transferring Whitehurst to the CTU was problematic because of personal and professional differences between Whitehurst and CTU Unit Chief Roger Martz.


Likewise, former Laboratory Director Hicks noted that Whitehurst had difficulty getting along with almost everyone and that one of the considerations for moving Whitehurst may have been his conflicts with the Explosives Unit. Hicks reported that the reassignment was not an attempt to silence Whitehurst.


To be sure, not all of Whitehurst's co-workers agreed with the decision to move Whitehurst out of the explosives residue program. Burmeister said that he saw no logic in the decision to move Whitehurst because Whitehurst was the foremost expert in explosives residue. He believed that the decision to move Whitehurst was some sort of punishment for raising issues about the Laboratory. Still, Burmeister acknowledged that he had no proof that FBI acted to retaliate against Whitehurst. Indeed, Burmeister was not aware of who made the decision to move Whitehurst; nor was he aware of the official reason for the transfer of Whitehurst. Burmeister also acknowledged that the personality conflict between Whitehurst and Martz made it problematic for Whitehurst to transfer to Martz's unit.


In view of this record, we conclude that Kearney did not seek to punish Whitehurst by removing him from the explosives residue program. Kearney's decision to move Whitehurst was designed to address specific interpersonal difficulties between Whitehurst and individuals inside and outside of the explosives residue program. We also find that in reaching the decision to reassign Whitehurst, Kearney considered the fact that Whitehurst expressed a willingness to be reassigned and relief at the prospect of reassignment.


c. Assignment to Paints and Polymers Analysis


Finally, we conclude that Whitehurst's transfer to the paints and polymers program was not in reprisal for making allegations about the Laboratory.


Corby told us that he personally made the decision to reassign Whitehurst to the paints and polymers program. Kearney confirmed that Corby made this decision without any discussion with Kearney. According to Corby, the Laboratory's primary paint and polymer examiner, SSA Richard Buechele, had announced his departure for a field assignment. Corby stated that because Whitehurst had the appropriate chemistry background for that position, Corby decided to assign Whitehurst to begin training in that program. Corby added that even before the explosives residue program moved to the CTU, Whitehurst had expressed interest in the paints and polymers and environmental programs. Corby also stated that Whitehurst did not suffer any demotion in terms of title or pay grade as a result of his movement within the MAU.


Corby told us that he did not intend to punish Whitehurst by assigning him to the paints and polymer program. Notably, Whitehurst also told us that he did not think that Corby acted with retaliatory intent. Under the circumstances, we find no evidence of any retaliatory motive on Corby's part.

For all these reasons, we conclude that the evidence does not support Whitehurst's claim that the FBI transferred him to the paints and polymers program to punish him for making allegations about the Laboratory.

G. Other Evidence of Retaliatory Intent


In support of his claims of retaliation, Whitehurst reported the following anecdotal evidence of the FBI's retaliatory atmosphere:


Whitehurst claims that Section Chief James Kearney told him, Fred, you may be right about Rudolph, but if you pursue this matter you will destroy yourself, your career and your family. Is it worth it? Kearney told us that he did not make this statement exactly as Whitehurst presented it. Kearney stated that he did not recall his exact words, but did tell Whitehurst that it was not healthy to constantly dwell on the Rudolph matter. Kearney denied any intention to threaten Whitehurst, and stated that he was not attempting to deliver a message from FBI management. Kearney's statement, as recalled by either Whitehurst or Kearney, does not warrant the conclusion that Kearney harbored an intent to retaliate against Whitehurst.


Whitehurst also reports that Explosives Unit examiner Rick Hahn threatened him by stating, We'll replace you with a bright high school kid, in order to pressure Whitehurst to report certain results sought by Hahn. We have addressed this allegation in the section of this Report relating to the Norfolk case, where we concluded that we could not substantiate this allegation that Hahn threatened or tried to pressure Whitehurst. See Part Three, Section H2.


Whitehurst also charges that Explosives Unit Chief J. Thomas Thurman threatened him in early-1995. According to Whitehurst, Thurman told Burmeister that if Whitehurst continued to raise issues about Martz in the VANPAC matter, Director Freeh was going to fire Whitehurst. Burmeister generally recalled this conversation with Thurman. However, Burmeister did not think that Thurman intended to communicate a threat from Director Freeh to Whitehurst. Director Freeh also denied making such a statement. We think that Thurman was expressing his own personal opinion and was not communicating a threat by Thurman or FBI management.


Whitehurst charges that someone chastised James Mudd, Quality Assurance Chief at the Forensic Science Research Center, for telling attorneys with the FBI OGC that the FBI Laboratory was not ready for accreditation. Mudd told us that he expressed this opinion to FBI OGC attorneys, Stephen Robinson and John Sylvester. Mudd denied that anyone from the OGC or FBI management later retaliated against him for expressing this opinion. Mudd recalled that Barry Mones, chairman of the Laboratory accreditation committee, learned of his conversation with the OGC attorneys and telephoned Mudd to express disagreement. However, Mudd did not consider Mones' telephone call to be retaliatory.


Whitehurst also claims that MAU examiner Christopher Fiedler said he was reluctant to criticize the Laboratory management because he and his friends had families to feed. Fiedler told us that he does not recall saying this to Whitehurst. Fiedler added that he has not refrained from making allegations because he thought his career might be jeopardized. Fiedler recalled that during one conversation with Whitehurst, Whitehurst expressed concern that he was the only person coming forward with allegations about the FBI. According to Fiedler, he may have responded that perhaps others are afraid to raise issues because they have families to feed, or they are close to retirement, among other reasons. Fiedler stated that he was only trying to provide Whitehurst with general reasons why someone might not raise issues. Fiedler stated that he has no personal knowledge of anyone who has failed to raise issues because t hey feared retaliation.

Whitehurst further claims that Vickie Casso, a co-worker of Cheryl Whitehurst, stated that she was proud of the Whitehursts, but feared coming forward herself because she might lose her home and job. Casso told us that she generally recalled the conversation with Cheryl Whitehurst. Casso stated that she never told Cheryl Whitehurst that she had any allegations to raise but feared coming forward with them. Casso said that she may have told Cheryl Whitehurst that if she were in the Whitehurst's position, she would be reluctant to pursue their allegations because of the expense involved and thus the possibility of losing personal possessions such as her home. Casso observed that it requires lawyers and money to pursue such allegations. Casso added that she had raised issues to management in the past and does not feel that she experienced retaliation for any reason.


According to Whitehurst, Fran Henning of the Serology Unit knew that agents were padding their work hours, but refused to come forward because, according to Whitehurst, she would just lose. Henning, who has since retired, told us that she was the secretary to the SAS Chief between 1959 and 1970. She reported to us that during that time, she suspected that agents were padding their hours, but did not report this activity because it was only her impression. She denied that she had been afraid to report the allegations because of possible retaliation.


Finally, Whitehurst contends that the FBI Laboratory management transferred DNA examiner Greg Parsons to a research position because he refused to testify based on a flawed DNA protocol. Parsons told us that prior to December 1990, he disagreed with most of his colleagues in the DNA Unit regarding the interpretation of unevenly migrated DNA in autoradiographs, an effect known as band shifting. When he could not resolve his concerns, he asked to be transferred to the MAU, but Laboratory Director Hicks insisted that he continue to work in the DNA Unit. Parsons told us that although he never discussed this matter with Hicks, he thought Hicks was being vindictive and just wanted to get his way by keeping Parsons in the DNA Unit. Parsons stated that he did not think that the decision not to transfer him was related to his concerns about the DNA protocol. Parsons told us that he later transferred to the FSRU to work on the next generation of DNA analysis. Parsons said that he did not consider the transfer to be punishment and was relatively happy about the transfer.


In sum, the anecdotal evidence cited by Whitehurst did not support his assertion that there was an atmosphere of retaliation at the FBI Laboratory.


III. Conclusion


In sum, we find no factual basis to believe that Whitehurst suffered retaliation for raising concerns about the Laboratory. With respect to most of Whitehurst's claims, the circumstances supported the decisions by the FBI management, and we could discern no retaliatory purpose behind those decisions. Certainly, Whitehurst disagreed with many of these decisions, but the fact that Whitehurst endorsed a different approach than adopted by FBI management does not in and of itself support a conclusion that management acted with wrongful purpose.


We were not able to reach a final conclusion concerning Whitehurst's claim that the FBI sought to punish him by forcing him to undergo psychiatric evaluation. Despite our requests, Whitehurst failed to provide a medical release so that we could interview key personnel in the Health Care Program Unit and Employee Assistance Program. Without their statements, we were not in a position to reach a definite conclusion concerning this claim.



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