The fraud trial of a former Defense Department official and a government contractor ended abruptly last week after more than eight days of testimony because prosecutors found thousands of emails that had not been handed over to the defendants.
After giving both sides two weeks to review the material, Judge Liam O’Grady in Alexandria federal court sided Friday with defense attorneys who said a fair trial with the same jury was impossible. He ordered a mistrial and asked both sides to suggest dates to begin again.
Construction contractor William Wilson is accused of bribing Matthew Kekoa Lumho, who worked in the Defense Department’s inspector general’s office, to get approval for inflated and falsified contracts that had been steered through complicit executives at the major telecommunications firm Level 3.
As prosecutors prepared the weekend of Oct. 27 to cross-examine Lumho, according to court filings, they discovered a zip drive with 17,000 pages of undisclosed emails from his work computer.
They argued that the nearly completed trial could continue as long as Lumho and Wilson were allowed to call back witnesses and ask them about the new documents.
“None of the emails cited by the defendants undermine or otherwise call into question their guilt,” they wrote in a memo to the judge.
The defendants disagreed, saying that two weeks had not been enough time to read all the new information.
“It is farcical to suggest that — in a trial on the eve of closing arguments — these 17,000-plus documents and emails can be meaningfully incorporated into defense strategies that took over a year to contemplate, research, reflect upon and put together,” the defendants wrote in a court filing.
But they said that what they had read made clear the case against Lumho was “fatally flawed.”
At issue is whether the Defense Department official’s supervisors approved of the way he was ordering goods and services from Wilson. Both Lumho and Wilson maintain that as the Defense Department inspector general’s office was scrambling to move from Arlington to Alexandria, officials knowingly paid a markup to get projects done quickly.
Lumho’s attorneys said the new documents bolstered their defense by showing email chains detailing the expenditures that included his supervisors. They said the emails also showed that during an internal audit, he sent documentation of the invoices to his boss. That supervisor had testified he never saw the invoices.
Prosecutors countered that higher-ups at the Defense Department were not complicit, just trusting of Lumho to tell the truth, and that there is other evidence that implicates Lumho. His father-in-law got what prosecutors described as a fake job with Wilson’s company, and he got electronics and photography equipment, they said.
“Naturally we’re disappointed,” said Zachary Kitts, who represents the whistleblower who alerted federal law enforcement to the case. “[But] the case is solid.”
An executive at Level 3 has pleaded guilty to directing subcontracts to Wilson in exchange for about $700,000 in kickbacks, including Disney cruises and Caribbean vacations.
Another defendant, who was a vice president at Level 3, committed suicide just before the trial began, according to court documents.