United States v. McComber
| Decision Date | 07 November 2022 |
| Docket Number | CRIMINAL ACTION ELH-21-36 |
| Parties | UNITED STATES OF AMERICA v. JACKY LYNN McCOMBER, Formerly known as Jacky Lynn Kimmel, Defendant. |
| Court | U.S. District Court — District of Maryland |
Defendant Jacky Lynn McComber, formerly known as Jacky Kimmel, was indicted on February 25, 2021, and charged with multiple offenses in connection with a government contract between the National Security Agency (“NSA” or “Agency”) and InfoTeK Corporation (“InfoTeK” or “ITK”), ECF 1 (the “Indictment”). McComber is the Chief Executive Officer, President, and the sole shareholder of InfoTeK. A Superseding Indictment was returned on May 26, 2022. ECF 97.
The case is rooted in defendant's billing practices as Senior Program Manager (“PM”) with respect to a contract known as the “Ironbridge Contract” (the “Contract”).[1] In particular, InfoTeK billed NSA for 2,603.5 hours of work allegedly performed by the defendant between March 14, 2016 and September 8, 2017. The government contends that defendant submitted inflated timesheets and fraudulent invoices to NSA for that period. NSA paid the invoices in full, in the amount of $388,878.78.
The Superseding Indictment contains twenty counts.[2] Counts One through Nineteen charge “Submission of False Claim,” in violation of 18 U.S.C. §§ 287 and 2(b). Count Twenty charges defendant with “False Statements” made on October 3, 2017, in violation of 18 U.S.C. § 1001(a)(2). Id. at 8, 10
The case is extremely contentious, and the parties paint entirely different pictures about what transpired. The government maintains that the case is a simple and conventional fraud case, in which the defendant unlawfully billed the government for more hours than she worked. See, e.g. ECF 144 at 34. The defense characterizes the case as “a complex statutory and regulatory matter” involving the Federal Acquisition Regulations (“FAR”); the duties of a Contracting Officer (“CO”)[3]; the duties of a Contracting Officer Representative (“COR”); Department of Defense handbooks; a complicated contract; and “technical legal issues” pertaining to principles of federal contracting. ECF 112-1 at 26.
The parties have filed multiple motions and numerous exhibits. The Court held motions hearings on December 1, 2021 (ECF 30); July 14, 2022 (ECF 129); July 20, 2022 (ECF 131); July 25 2022 (ECF 139); August 29, 2022 (153); August 30, 2022 (ECF 154); and September 7, 2022 (E.CF 160), at which evidence and/or argument were presented. Another motion hearing is scheduled for November 14, 2022.
This Memorandum Opinion concerns the government's motion to exclude most of the opinion testimony of defense expert Charles Stein, a former NSA employee. ECF 54 at 13-25. Defendant's opposition is at ECF 69. The government's reply is at ECF 78. At the request of the Court (ECF 86), the defendant submitted a clarification as to the actual proposed opinions of Mr. Stein. See ECF 87. At that time, the defense submitted 62 proposed opinions of Mr. Stein. Id.; see also ECF 112-1. The government's response is at ECF 105. And, the defense replied at ECF 112. Both sides also submitted multiple exhibits.
Mr Stein testified on July 14, 2022 (ECF 129); July 20, 2022 (ECF 131); and July 25, 2022 (ECF 139). His Affidavit is at ECF 38-1. Several other witnesses also testified.
After the presentation of evidence, the defendant reassessed Stein's proposed expert opinions and pared them to “26 discrete opinions.” ECF 143; ECF 149.[4] The government's post hearing brief is docketed at ECF 144. McComber's response is docketed at ECF 156. The government replied. ECF 158. And, the government submitted correspondence docketed at ECF 161.[5]
NSA's functions include intelligence operations. ECF 97 at 1, ¶ 1. InfoTeK is “in the business of providing information technology, engineering, and security management services to government agencies and commercial” entities. Id. ¶ 2. At the relevant time, McComber served as “the Chief Executive Officer, President, and first the controlling and then later . . . the sole shareholder of InfoTeK” Id. at 2, | 3.
Between July 2011 and February 2018, NSA “had an ongoing contract” with InfoTeK, i.e., Prime Contract #98230-11-C-1496, “known as the IRONBRIDGE contract.” ECF 97 at 2, | 2[7]The Statement of Work (“SOW”) for the Contract required ITK “to provide maintenance and enhancement support for the information technology and software for requirements of the NSA's National Security Operations Center (NSOC) and the Counter Terrorism Mission Management Center ....” Id. The Contract was primarily to be performed at NSA's “main facility,” located on the grounds of Fort George G. Meade in Maryland. Id. ¶¶ 1, 4.
The Contract “established fixed labor rates . . . for the various positions held by each InfoTeK employee or contractor who worked on IRONBRIDGE.” Id. And, “InfoTeK billed the NSA on a monthly basis based upon the level of effort expended (hours worked) by its employees and contractors in each position.” Id. The defense refers to the Contract as a firm-fixed-price, level-of-effort contract. See, e.g., ECF 36 at 2; see also 48 C.F.R. § 16.207-2.
Further, the SOW “required InfoTeK to identify a program manager (PM) who would be responsible for managing all aspects of the contract and the Technical Task Orders (TTOs) issued under it.” Id. at 2, | 3. The program manager was responsible for “overseeing InfoTeK's performance of its contractual obligations and serving as InfoTeK's point of contact in dealing with government personnel on matters relating to its contract performance.” Id.
The Contract itself is not classified. But, “[b]ecause the subject matter of the IRONBRIDGE contract involved classified information,” Clause F.6 of the Contract provided that all work was required to be performed at “the Government site,” unless advance written permission to do otherwise was provided by “the Contracting Officer” Id. |4 (citation and internal quotation marks omitted). The Superseding Indictment alleges that the work site was NSA's Fort George G. Meade facility. Id. at 1, ¶ 1; id. at 3, ¶ 4. However, “there were some limited administrative functions . . . that some NSA personnel believed a [PM] could appropriately handle from outside the NSA's secured facility.” Id. ¶ 5. Nevertheless, the Superseding Indictment states that neither InfoTeK nor McComber ever obtained “formal authorization” from NSA “authorizing [defendant] to carry out [her] functions . . . at any location other than the Government Site.” Id.
When ITK personnel worked on the Contract, they “used a web-based timesheet software program provided by Unanet, Inc., to record their billable time . . . .” Id. | 6. At the beginning of each month, an InfoTeK official generated an invoice that reflected the billing information under the Contract for hours worked for the prior month by InfoTeK employees and contractors. Id. Each invoice “included a table” reflecting the “hourly billing rate” for InfoTeK's personnel, as well as “the hours they had worked” on the Contract “in the previous month; the amount InfoTeK was billing for their services for the previous month, and . . . their cumulative hours and the cumulative amount billed for their services for the year to date.” Id. Each invoice also listed “the total hours worked and the total dollar amount” submitted for payment. Id. Moreover, all invoices submitted by InfoTeK between the fall of 2013 and the fall of 2017 included a certification of the accuracy of the hours and charges presented. Id. | 7.
Defendant intermittently served as InfoTeK's program manager during the first two years of the Contract. Id. at 2-3, | 3. In the summer of 2013, another InfoTeK official, referred to as Individual A in the Superseding Indictment, assumed the role of Senior Program Manager, which she held until mid March of 2016. Id. at 3, ¶ 3. At some point during Individual A's tenure as Senior Program Manager, Individual A allegedly indicated to other InfoTeK officials that “there was actually not enough work for the Program Manager to do” to support a full-time position. Id. I 8. Nevertheless, InfoTeK billed an average of 130 hours a month to the NSA for Individual A while she held her position. Id.
Individual A was replaced by defendant in March 2016. Id. at 3, ¶ 3. At that time, McComber “assumed” the position of Senior Program Manager. Id. I 9. She held the position through September 2017, id. at 3, ¶ 3, when “NSA asked that she be removed ....” Id. ¶ 9. The Superseding Indictment provides that throughout this roughly eighteen-month period, defendant generally “billed time to the IRONBRIDGE contract” for “a full 8 hours” per day. Id. Thus, ITK “billed an average of 144 hours a month to the NSA for [defendant's] supposed work ....” Id.
From March 14, 2016 through October 31, 2016, defendant charged an hourly rate of $148.13. Id. ¶ 10. Her hourly rate increased to $150.35 for the period November 1, 2016 through September 30, 2017. Id. In total, from March 14, 2016 through September 8, 2017, InfoTeK billed NSA for 2,603.5 hours of work by McComber, in the total sum of $388,878.78, and NSA “paid these charges in full ....” Id. I 11.
An anonymous whistleblower sent a letter to NSA dated August 23 2017, claiming billing fraud by defendant. ECF 54-1. Thereafter, NSA conducted a review of McComber's “access control (key card) information with the time InfoTeK billed for her work” and, according to the Superseding Indictment, NSA determined that defendant “was not actually present at her contractually assigned duty station at the NSOC” for approximately ninety percent of the total hours that “she had recorded on her timesheets and that InfoTeK...
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