DOJ says San Diego federal prosecutor in ‘Fat Leonard’ case won’t be investigated for misconduct
The San Diego Union-Tribune March 16, 2023
(Tribune News Service) —The U.S. Department of Justice will not investigate a complaint that the lead prosecutor on the “Fat Leonard” Navy bribery investigation committed professional misconduct by withholding information from defense lawyers in a high-profile trial last year.
The Office of Professional Responsibility said it concluded that opening an investigation into a complaint filed against Assistant U.S. Attorney Mark Pletcher by a defense lawyer last August would likely not end with a finding that Pletcher violated professional conduct rules.
That conclusion goes against one made last year by U.S. District Judge Janis Sammartino, who presided over the case of five former Navy officers charged with conspiracy, bribery and fraud related to their dealings with the military contractor Leonard Glenn Francis, better known as “ Fat Leonard.” In a written ruling in June, Sammartino said Pletcher had committed “flagrant misconduct” when he withheld information about a witness in the case from lawyers for the men.
Despite that finding, Sammartino declined demands from defense attorneys to throw out the case against their clients. The jury ultimately convicted four of the five.
But the controversy did not end there. After the trial in August, Joseph Mancano, the lawyer for former Capt. David Lausman, filed a formal complaint with the DOJ contending Pletcher had “willfully concealed” evidence that could have helped the defense.
On Wednesday the lawyer for the department’s Office of Professional Responsibility wrote that after opening an inquiry and reviewing transcripts, court filings and other information “obtained from the U.S. Attorney’s Office and its personnel” there would be no formal investigation of Pletcher.
“Based on the results of its inquiry, OPR concluded that further investigation was unlikely to result in a finding that AUSA Pletcher either intentionally or with reckless disregard violated a clear and unambiguous standard and therefore engaged in professional misconduct,” he wrote.
Pletcher did not respond to a message seeking comment. The U.S. Attorneys Office declined to comment.
For nearly a decade Pletcher has been the lead prosecutor in the Navy scandal cases, which have netted nearly three dozen convictions and guilty pleas from former officers and contractors in what is the worst corruption scandal ever to hit the service. At the heart of the investigation was Francis, a Malysian businessman and Navy contractor nicknamed because of his ample size.
For years Francis plied Navy officers with bribes including gifts, luxury travel, hotel stays and the services of prostitutes, the government argued in case after case. In return the recipients of the bribes did a variety of services for Francis and his company, including trying to steer Navy ships to ports in Asia that Francis’ company controlled. That allowed Francis to defraud the Navy millions of dollars in overcharges and bogus billings.
Francis pleaded guilty years ago and cooperated with the government, living for several years in an unusual medical furlough arrangement where he lived in a luxury Torrey Highlands mansion under a kind of home arrest. In September — just weeks before he was to be sentenced — Francis brazenly cut off the GPS monitor he was wearing as part of the detention and fled. He was arrested later by Interpol agents in Venezuela, where he remains today as the U.S. seeks his extradition.
Mancano said the decision by the Justice Department not to open an investigation was “disturbing.” He said the letter was unclear if DOJ simply disagreed with Sammartino’s June ruling against Pletcher, or if the agency had made some other determination.
“To me it was very clear what she found, that he had committed misconduct in this case,” Mancano said of the judge’s ruling. “The court already concluded that he had engaged in professional misconduct, and done so in a written opinion after a full-blown hearing.”
The issue centered on a potential witness named Ynah, a sex worker who prosecutors contended had sex with one of the defendants in the trial, Lausman, at a wild party in 2008 in Manila, Philippines. Then, days after the trial began last year, federal agents contacted the woman — who told them she and Lausman never had sex.
Defense lawyers did not find out about the agents’ contact with the woman, or her statements, until later in the trial. They were incensed when they did. Under long-standing legal precedent, prosecutors are supposed to give the defense any information it has that could help a defendant.
Sammartno stopped the trial and held a three-day hearing outside the presence of the jury.
The hearing included the extraordinary scene of Pletcher taking the stand and testifying in his defense. The agents had testified they asked Pletcher four separate times about writing up a report on Ynah’s latest statements for the defense, but were put off each time.
Pletcher said he had always intended for the special agents to write a report but he wanted to get more information about the agents’ contact with the woman in order to figure out how best to disclose it. In her ruling on the issue Sammartino, said it was clear the information was “willfully withheld” from the defense and “misrepresented” to her. But, she also concluded that damage to the defense case was minimal, and a special instruction given to the jury on the issue neutralized that damage.
A finding by the OPR that further investigation of a complaint would not yield a finding of misconduct is not unusual, according to the agency’s annual reports. In fiscal 2022, which ended in October, the agency closed 62.5 percent of all misconduct complaints with that finding.
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