DEFENSE TO BEGIN ITS CASE IN TRIAL OF EX-NAVAL OFFICERS
Substantial motions hang in the balance as prosecution rests
After roughly nine weeks of presenting evidence, the prosecution in the “Fat Leonard” Navy bribery trial has rested.
Now, it’s the defense’s turn. Beginning today, attorneys for five former naval officers on trial will have the floor as they work to reshape the narrative that has been laid out by prosecutors and their 20 or so witnesses.
The defendants — former Rear Adm. Bruce Loveless; former Capts. David Newland, James Dolan and David Lausman; and former Cmdr. Mario Herrera — are accused of taking bribes from Singapore-based military contractor Leonard Glenn Francis as part of his sweeping conspiracy to gain influence within the Navy and ultimately millions in contracting dollars. The perks included lavish meals, luxury hotel rooms, and in some cases the services of prostitutes, according to prosecutors.
The trial has garnered special attention not only for its highranking defendants, but because it is the first and likely only case to
go to trial in the nearly decadelong Justice Department prosecution. Twentynine others — Navy officials, defense contractors, Francis and his corporation — have pleaded guilty. In many ways, the trial serves as the last chapter of what has been called the Navy’s worst scandal in modern history.
The trial has been anything but routine since it began Feb. 28, forcing both sides to quickly adapt.
The government’s witnesses have been surprising — not for who has been called, but who hasn’t. The most anticipated witness — Francis, nicknamed for his immense physique — was officially struck from the lineup three weeks ago.
But the naval official who was indicted alongside Francis in 2013, former Cmdr. Jose Luis Sanchez, was still waiting in the queue to testify, prosecutors announced at the time. A major figure in the conspiracy, Sanchez was perhaps the next best thing to hearing from Francis.
However, behind the scenes, a controversy had been roiling over one or more images described as potential child pornography found on Sanchez’s computer, including one of a girl appearing no more than 11 years old, according to motions and government responses filed in the case.
Ultimately, a federal investigator concluded that he could not say for sure whether the images were child pornography, and the government agreed to not charge Sanchez for unspecified “unauthorized files” as part of his pleading guilty in the bribery case, according to court records. Defense attorneys argued that prosecutors weren’t forthcoming about the evidence or any potential benefit given to Sanchez, and the judge proposed a sanction that would involve an instruction to jurors that they could assume the images on the computer were in fact child porn.
Two days later, prosecutors pulled Sanchez from the witness lineup. The government rested its case Tuesday, earlier than expected.
While the prosecution called four naval officials who partook in the conspiracy, it passed on six others who were included in the government’s initial 63-person witness list. Nor did jurors hear from a woman identified on the roster as a madam for escorts hired by Francis. Two prostitutes in Southeast Asia whom agents were able to reach refused to come to the United States to testify, despite offers of potential cash payments and a fully funded trip.
Instead, prosecutors leaned heavily on investigators, Navy experts and email evidence.
The trial has also been clouded by accusations of prosecutorial misconduct, which were explored in a three-day special evidentiary hearing without the jury. Prosecutors — including some who had to testify — were accused of withholding exculpatory evidence regarding one defendant, Lausman, and a prostitute who claimed that while she slept in his hotel room, they never had sex. The allegation that he “accepted a prostitute” was specifically mentioned in the prosecution’s opening statements to the jury — a comment that may have to be walked back.
The government argued it did not violate the rule regarding disclosure of exculpatory evidence.
The episode is just one of the many legal battles that have been waged in the background and outside of the jury’s view. In recent weeks, defense attorneys have filed several motions for the judge to either dismiss the case or acquit the defendants, citing everything from prosecutorial misconduct to withholding of evidence to improper venue to failure to prove any of the prostitution offenses.
“The government is treating this criminal trial like a shell game,” Laura Schaefer, one of Lausman’s defense attorneys, wrote in a motion. “The prosecution’s false statements, either taken alone or in combination with the other significant due process violations in this case, warrant a mistrial and dismissal.”
Prosecutors have denied those claims, saying the government has not presented false narratives or perjured testimony.
“No inaccurate evidence has been put before the jury. ... The prosecution has made mistakes, but not to the extent alleged by the defendants, and nothing that has been discussed rises to flagrant misbehavior,” Assistant U.S. Attorney Peter Ko, who was called in to handle the evidentiary hearing, responded in a filing.
Most of those motions are still pending, and the government is still working to respond to some of them. Uncertainty over how U.S. District Judge Janis Sammartino may rule on them in the coming weeks hangs over defense attorneys as they now prepare to present their evidence.
A list of potential defense witnesses has not been made public. But the defense’s case isn’t expected to take nearly as long — likely two to four weeks, according to estimates made to the judge. That could mean the case is on track to go to the jury by mid-June.
Then again, a lot could happen between now and then.