As a federal jury in California was deliberating last year in the trial of four former U.S. Navy officials swept up in the massive "Fat Leonard" bribery scandal, attorneys for the defendants learned a startling fact: The lead special agent in the case had allegedly made false sworn statements in a similar matter in Washington, D.C., that spurred the government to dismiss serious criminal charges.
Prosecutors in the Fat Leonard case had never disclosed the inaccuracies to the four defendants. Now it was too late to question the agent, Cordell "Trey" DeLaPena, who had provided key testimony for the government.
The jury convicted all four defendants — former Navy Capts. David Newland, James Dolan and David Lausman and ex-Cmdr. Mario Herrera — handing a signature win to the U.S. Attorney's Office for the Southern District of California.
But a judge recently threw out the verdict, ripping federal prosecutors for "outrageous" misconduct in withholding the information. In a highly unusual move, the government agreed in early September to let the defendants plead guilty to a minor misdemeanor. Each defendant was fined $100 and sent on their way with no prison time or any other penalties.
The messy ordeal highlights the apparent rise in so-called Brady violations, experts say, as well as the challenge of knowing when the government has failed to turn over potentially exculpatory evidence or relied on sloppy investigative work.
"It's a problem," white collar defense lawyer Nina Marino of Los Angeles-based Kaplan Marino PC, who briefly served as local counsel in the Fat Leonard case in 2017, told Law360. "It's difficult to know, to discover and, frequently, by the time the discovery is made, it's too late to make an impact on the case."
Law360's attempts to speak with DeLaPena have been unsuccessful, and messages left with the Office of Inspector General, which oversees the Defense Criminal Investigative Service, or DCIS, where DeLaPena serves as an agent, have gone unanswered.
Andrew Haden, acting U.S. attorney for the Southern District of California, admitted in an earlier written statement that "errors were made" in the Fat Leonard case, but pushed back on criticism from the defendants' attorneys and U.S. District Judge Janis Sammartino's finding that prosecutorial misconduct had sullied the case.
"As stated in court, we do not agree with all the allegations or characterizations in the motions or in court," he said. "We recognize and regret, however, that errors were made, and we have an obligation to ensure fairness and justice. The resolutions of these defendants' cases reflect that."
Defense lawyers say they're now pursuing ethics complaints against prosecutors in the case, and calling for DeLaPena to face discipline.
"He shouldn't be an agent," Lausman's attorney Laura Schaefer of Boyce & Schaefer told Law360. "He lied under oath. That's a problem."
A Big First Assignment
Before he was a special agent with DCIS, DeLaPena spent about four years as a special agent with the U.S. Department of the Interior's Office of Inspector General, which investigates and audits department programs for waste, fraud and abuse.
He said in a court filing that he had participated in "numerous ... financial and white-collar criminal investigations" and had "personally conducted or assisted in complex financial fraud investigations" involving allegations of bribery, money laundering and antitrust violations.
When DeLaPena testified last year in the Fat Leonard case, he said he was stationed in Wiesbaden, Germany. It's unclear where he's currently based.
He also testified that he teaches other agents for DCIS as a "certified adjunct instructor for the Federal Law Enforcement Training Center, specifically for public corruption investigations."
The Fat Leonard case was DeLaPena's first assignment when he joined the DCIS in 2012 as a special agent, and it has grown into a sprawling bribery investigation centered around Malaysian defense contractor Leonard Francis, nicknamed "Fat Leonard."
Francis, the government's star witness, pled guilty in 2015 to bribing senior staff and officers in the Navy's Seventh Fleet with wild parties, prostitutes, luxury hotel accommodations and other expensive gifts. In turn, Francis' company, Glenn Defense Marine Asia, secured lucrative "husbanding services contracts" to maintain Navy ships in port. He also allegedly overcharged the Navy for GDMA's services by more than $35 million.
DeLaPena testified that he worked the Fat Leonard case for more than a decade and pored over millions of documents in the matter, which is ongoing. So far, the probe has resulted in criminal convictions for about two dozen defendants, including the four that were overturned, while at least four others have pled guilty to felony charges and are awaiting sentencing. Attorneys for the defendants awaiting sentencing did not respond to requests for comment.
Attorneys for Newland and his co-defendants alleged in a July motion for dismissal or a new trial that DeLaPena lied on the stand when he testified about the source of the documents and materials that Francis and a private investigator who worked for him, Esteban Hernandez, provided to the government to build its case.
DeLaPena allegedly falsely testified that Hernandez obtained the evidence directly from hard drives from GDMA's headquarters in Singapore, when the materials actually came from the company's information technology manager in Malaysia. The distinction was important because Francis earlier said during a podcast interview that he'd "doctored evidence on GDMA's server, with the help of his 'IT people,'" according to the motion.
The defendants' attorneys also said DeLaPena lied when he claimed to have no knowledge of how the hard drive retrieval occurred and if anyone other than Hernandez was involved in the process, asserting that those details were protected under attorney-client privilege.
"None of that was true," the defense attorneys said in their motion. They told the court that DeLaPena knew the IT manager provided the evidence in question.
Moreover, they claimed that the case's lead prosecutor at the time, Mark Pletcher, "sat silent and allowed the testimony to go uncorrected, not only to prevent the jury from learning about the evidence that was obviously harmful to the prosecution's case, but also to avoid impeachment of Agent DeLaPena, the government's central witness."
The government never called Hernandez to testify, according to court filings.
The defense attorneys also accuse DeLaPena of instructing two other agents to offer a $5,000 "reward" to a witness in the case to entice her to leave her home in the Philippines and travel to the U.S. to testify that Francis used her services as a sex worker to bribe the defendants.
DeLaPena denied any wrongdoing under cross-examination and testified that the payment was never made, according to court transcripts. The woman in question ultimately refused to testify in the case because she was afraid of Francis, according to court filings.
Before he was sentenced, Francis, who allegedly had child pornography on his computer — a detail that prosecutors tried to hide from Newland and his co-defendants, according to their attorneys — cut off his ankle monitor, fled house arrest in the U.S. and was later caught in Venezuela. He is awaiting extradition.
Newland's attorney, Joseph Mancano of the Law Offices of Joseph D. Mancano in Philadelphia, filed an ethics complaint against Pletcher last year but said that to his knowledge the U.S. Department of Justice's Office of Professional Responsibility has not taken any action. He told Law360 that he and his co-counsel are gathering additional evidence to file an updated complaint against Pletcher and, potentially, other prosecutors in his office.
Misconduct Inquiry Deepens
In March 2022, around the same time the Fat Leonard trial was starting in California federal court, the government quietly dismissed fraud charges in a similar bribery and fraud case in Washington, D.C., against Navy contractor Frank Rafaraci due to "factually inaccurate" statements that DeLaPena made in an affidavit supporting the criminal complaint against Rafaraci.
Rafaraci, like Francis, was CEO of a company that contracts with the Navy to service ships in foreign ports. Rafaraci also was charged with bribing a Navy official and overcharging the government for his company's services.
Details of DeLaPena's alleged false statements against Rafaraci are under seal. But the government was concerned enough about the inaccuracies in the agent's criminal complaint affidavit that prosecutors dismissed the original complaint against Rafaraci, who had been charged with bribery, conspiracy to commit bribery, conspiracy to commit wire fraud and conspiracy to commit money laundering. He later pled guilty to a single count of bribery and is awaiting sentencing, according to court filings.
An attorney for Rafaraci, Michael Sherwin of Kobre & Kim LLP, declined to comment on the case.
In a joint motion to strike the original complaint against Rafaraci, the government stressed that the "defense has not alleged, and we have found no evidence suggesting, that any inaccuracies in the affidavit supporting the complaint were made purposefully, or with intent to deceive or mislead."
But prosecutors never alerted Newland or his co-defendants in the Fat Leonard case about DeLaPena's flawed affidavit in the Rafaraci case.
Lausman attorney Schaefer and her law partner and co-counsel Robert Boyce said they first learned about the Rafaraci issue while the jury was deliberating in their case in June 2022. They declined to disclose how they came across the information, which they described in a motion to compel discovery from the government as a blatant Brady violation, alleging prosecutors had again failed to share crucial evidence that could have been used to impeach DeLaPena.
Schaefer and Boyce asserted in the July 2022 motion, which all four Fat Leonard defendants joined, that the government had refused to provide discovery related to DeLaPena's alleged false statements in the Rafaraci case.
They told the court that prosecutors expected the defendants to blindly accept the government's assertions that there were only two "factual inaccuracies" in DeLaPena's affidavit and both were "innocent" and did not qualify as impeachable evidence.
At the same time, though, prosecutors in the Rafaraci case were "undertaking a comprehensive re-review of the evidence supporting the fraud and money laundering allegations in the complaint and accompanying affidavit," Schaefer and Boyce said in the motion.
"If the prosecutors in the Rafaraci case were confident Agent DeLaPena's other allegations were factually supported, no such review would be required," they said in the motion.
"At a minimum, false statements made by an agent to further a criminal prosecution shows a reckless disregard for the truth," they added.
Judge Sammartino ultimately ordered prosecutors to give the four Fat Leonard defendants the government's materials on DeLaPena's alleged false statements in the Rafaraci case.
"Based on the evidence presently before the court, it is clear that, at a minimum, Agent DeLaPena made misrepresentations in his sworn affidavit, which resulted in significantly reduced charges against Rafaraci," Judge Sammartino wrote in her order.
"Given the similarity between offenses in both cases, Agent DeLaPena's critical role in the instant case, and the several instances of failure to disclose in this case, the court finds that defendants are entitled to discovery of the underlying facts related to agent DeLaPena's misrepresentations," she concluded.
The Fat Leonard defendants detailed DeLaPena's alleged false statements in the Rafaraci case in a pleading, but the document was sealed, over the defendants' objections, after the government argued that it's tied to an ongoing investigation, according to Newland attorney Mancano.
"The government's position in Rafaraci was that these weren't lies, they were just mistakes and they were inadvertent," Mancano said. "I believe that we established in our sealed filing that that wasn't the case and that he would have known that the representations he was making were not correct, yet he made them anyway."
Mancano worked closely with government agents earlier in his career as a federal prosecutor and, since switching over to criminal defense in the late 1980s, has cross-examined hundreds of them. He told Law360 he's never encountered an agent like DeLaPena during his more than four decades of legal practice.
"He was willing to say and do just about anything to make this case," Mancano said.
However, attorneys for Newland and his co-defendants have no evidence that DeLaPena made false statements in any of the other Fat Leonard cases, according to Schaefer.
The U.S. Department of Justice's Office of Professional Responsibility investigates reports of professional misconduct involving DOJ lawyers. The inspector general would typically look into allegations of misconduct involving one of its agents, though it's unclear if DeLaPena was being investigated.
Even if he doesn't face formal discipline, experts say DeLaPena could be haunted by his alleged misconduct if and when he testifies again, as an informed defendant would try to bring up the agent's history to attack his credibility on cross-examination.
Kevin O'Brien, a partner at Ford O'Brien Landy LLP in New York and former federal prosecutor who is not involved in the Fat Leonard case, said instances of government misconduct, particularly failures to produce relevant discovery, "seem to be on the rise today."
In many instances, Brady violations are inadvertent — simply the result of living in a digital world in which "virtually nothing is destroyed or erased," making the government's disclosure obligations "more burdensome" than they were in the past when electronic records were minimal, O'Brien added.
Identifying deceitful federal agents, especially those who work abroad, can be extremely difficult if they haven't been formally disciplined, according to Marino of Kaplan Marino. She said defense attorneys who suspect they're dealing with a problematic federal law enforcement officer can file a discovery motion seeking potential impeachment information on that agent.
"The problem is that if there was no disciplinary action, then you don't get anything," Marino noted. "It's very difficult when you have an untrustworthy agent or lawyer, whether that's a prosecutor or defense attorney. Disciplinary proceedings are not automatic. And there's a lot of forgiveness for bad conduct."