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The lead prosecutor in the “Fat Leonard” Navy bribery trial was immediately informed of conversations that investigators had with a prostitute linked to the case but expressed uncertainty if the information should be officially documented, according to testimony delivered during a special evidentiary hearing Tuesday.

Six weeks later, the information still hadn’t made its way into a report and was not part of the discovery given to lawyers defending five former naval officers on trial.

The federal judge overseeing the trial, now in its ninth week, must now decide if that apparent decision — or indecision — was a violation of the Brady Rule, which is named for a 1963 U.S. Supreme Court decision in Brady v. Maryland and requires prosecutors to hand over exculpatory evidence to the defense.

U.S. District Judge Janis Sammartino’s ruling on the issue could significantly alter the course of the high-profile prosecution.

The first day of the Brady hearing, which is occurring outside the presence of the jury, featured testimony from Jill Kelley, a special agent with the Naval Criminal Investigative Service, who was tasked with a last-minute search for five prostitutes allegedly used by military contractor Leonard Glenn Francis in his bribery scheme targeting U.S. Navy officials posted in Southeast Asia.

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One prostitute, Ynah, is alleged by prosecutors as having had sex with one of the defendants — former Capt. David Lausman — as a bribe following a party at a hotel in Manila, Philippines.

Kelley and another agent made remote contact with Ynah in Manila on March 4 and again on March 8. By then, the trial had already started.

Kelley said she and the agent did not ask any substantive questions during their brief exchanges with her — via text message and over the phone — because the point was not to interview her but to convince her to come to San Diego to testify.

“I didn’t want to ask any questions until I had a face-to-face interview,” Kelley said.

Ynah told the agents that she did not want to come to the U.S. and then — without being prompted — offered her brief side of the story. She said that a “particular individual” that she would not further identify didn’t seem to want to go with her, but that Francis had pushed it so she still went to this person’s room with him.

“But nothing happened, I even slept on the couch lol,” Ynah texted the agents. Ynah added that she falsely told Francis that they’d had sex so she would get paid.

Kelley said she didn’t ask any follow up or clarifying questions as to Ynah’s statements, and with no agreement to come testify, the inquiry ended there.

Kelley said she and her partner immediately briefed the lead prosecutor on the team, Assistant U.S. Attorney Mark Pletcher, on their contact with Ynah on March 4 and 8, and then asked how the encounter should be documented. The other agent works for the Defense Criminal Investigative Service, which apparently has different internal guidelines on when to generate reports on witnesses, Kelley said.

“He said, ‘Let me think about it,’” Kelley testified as to Pletcher’s response.

The investigative duo asked Pletcher twice more in the following weeks about how they should document the conversation with Ynah, and Pletcher responded with the same uncertainty saying he would think about it, she testified.

On April 20 — after Lausman’s defense attorney filed a Brady motion inquiring about the undisclosed contact with Ynah — Kelley said she and the agent were approached by another member of the prosecution team, who told them they needed to write the report now.

When the other agent told the prosecutor, Assistant U.S. Attorney Michelle Wasserman, that Pletcher had told them to hold off, Wasserman replied: “You should have come to me,” according to Kelley.

In a motion filed last week, prosecutors acknowledged the report should have been created in the first place but denied that it was a Brady violation. They argued that the information was too vague to be exculpatory, and that Ynah had told them upfront that she had already told the same thing — in even more detail — to a private investigator for the defense a couple weeks earlier.

It is possible that the prosecutors will be called to testify later this week. To prepare for that possibility, “taint” prosecutors with no involvement in the case are representing the government in the hearing.

The judge also saw email evidence Tuesday that showed discussions surrounding government support for paying prostitutes to come testify in the case — a disclosure that the defense was only made aware of in light of the court’s inquiry into the Brady issue.

“DOJ is paying for her travel to the states,” a DCIS agent wrote another regarding the only other prostitute they were able to track down, named Febby. “(DCIS Special Agent Cordell DeLaPena) would like to provide the witness with reward money for her testimony.”

The email continued: “DOJ approves of the reward, payable when she arrives in San Diego.”

DeLaPena then sent Kelley an email that simply said: “$$ enroute.”

Kelley testified that she understood the payment would be compensation for lost wages and childcare. She acknowledged that she found the characterization of it as a reward as “odd.”

The legality of paying witnesses was not explored during testimony Tuesday, except for an objection by a “taint” prosecutor who said he will be offering legal precedent on the practice from the 9th U.S. Circuit Court of Appeals.

“Did someone offer Febby $5k?” DeLaPena asked his fellow investigators in a follow-up email.

Kelley responded in an email that she had asked a special agent in the Philippines “if he told Febby that she would be offered cash and his response to my question was that Febby told them there is nothing that can be given to her that would make her come to the U.S.”

Kelley said a general offer of payment was presented to Ynah during one of their phone conversations as part of the effort to get her to San Diego.

The hearing is expected to continue Wednesday.

Source: This post first appeared on sandiegouniontribune.com

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