United States v. McComber

1

UNITED STATES OF AMERICA v. JACKY LYNN McCOMBER, Formerly known as Jacky Lynn Kimmel, Defendant.

CRIMINAL ACTION No. ELH-21-36

United States District Court, D. Maryland

December 3, 2021

MEMORANDUM OPINION

Ellen L. Hollander United States District Judge

Defendant Jacky McComber, formerly known as Jacky Lynn Kimmel, was indicted on February 25, 2021, and charged with multiple offenses in connection with a government contract. ECF 1 (the “Indictment”). In particular, the Indictment is rooted in McComber's billing practices as program manager with respect to a contract between the National Security Agency (“NSA” or “Agency”) and her company, InfoTeK Corporation (“InfoTeK”). From 2011 through February 2018, InfoTeK had a contract with NSA known as the Ironbridge Contract. McComber, the Chief Executive Officer, President, and later the sole shareholder of InfoTeK, is charged with submitting inflated timesheets and fraudulent invoices to NSA during the period of April 2016 to October 2017.

The Indictment contains twenty counts. Counts One through Nineteen each charge “Submission of False Claim ” in violation of 18 U.S.C. § 287 and 18 U.S.C § 2(b). Id. at 2, 7. Count Twenty charges defendant with “False Statements” on October 3 2017, in violation of 18 U.S.C. § 1001(a)(2). Id. at 8, 10.

As to Counts One through Nineteen, defendant has filed a “Motion for Bill of Particulars” (ECF 20), pursuant to Fed. R. Crim. P. 7(f). It is supported by a memorandum of law. ECF 20-1 (collectively with ECF 20, the “Motion”). The government opposes the Motion. ECF 21 (the “Opposition”). The Opposition is supported by four exhibits. These include two transmittal letters reflecting the government's discovery productions (ECF 21-2; ECF 21-3), and a document titled “Excerpt from Government Spreadsheet Reflecting Hours When Defendant was Present at NSA and other available information about her activities” (ECF 21-4). Defendant has replied. ECF 22 (the “Reply”).

A Motion hearing was held on December 1, 2021, at which argument was presented.^[1] For the reasons that follow, I shall deny the Motion.

I. Summary of Allegations

The NSA's functions include intelligence operations. ECF 1 at 1, ¶ 1.^[2] InfoTeK provided, inter alia, information technology, engineering, and security management services to government agencies, including NSA. 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, the NSA “had an ongoing contract” with InfoTeK, “known as the IRONBRIDGE contract” (the “Contract”). ECF 1 at 2, ⁋ 2. Under the Contract, InfoTeK was required “to provide maintenance and enhancement support for the information technology and software for requirements of the NSA's National Security Operations Center (the ‘NSOC') and the Counter Terrorism Mission Management Center . . . .” Id.

According to the Indictment, the Contract “established fixed labor rates . . . for the various positions held by each InfoTeK employee or contractor who worked on IRONBRIDGE.” Id. at 2, ⁋ 2. 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. Further, the Contract required InfoTeK to “identify a program manager . . . who would be responsible for managing all aspects of the contract and the Technical Task Orders . . . issued under it.” Id. at 2, ⁋ 3. The program manager was charged with “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 parties agreed at the hearing that the Contract itself is not classified. But, “[b]ecause the subject matter of the IRONBRIDGE contract involved classified information, ” 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.” ECF 1, ⁋ 4 (citation and internal quotation marks omitted). The Indictment alleges that neither InfoTeK nor McComber ever obtained permission “from the NSA authorizing [defendant] to carry out her functions . . . at any location other than the NSOC.” Id. ⁋ 5.

While working on the Contract, InfoTeK personnel used a timesheet software program to report their billable time. Id. ⁋ 6. At the beginning of each month, an InfoTeK official generated an invoice that reflected all the billing information submitted under the Contract for the prior month, which was then presented to the Agency. Id. Each invoice included a table showing 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. According to the Indictment, every monthly invoice 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 for 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 Indictment, assumed that role, 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. ⁋ 8.

Individual A left her position with InfoTeK in March 2016. Thereafter, McComber again assumed the position of Senior Program Manager. Id. ⁋ 9. The defendant retained this role “until NSA asked that she be removed . . . in the fall of 2017 . . . .” Id. The Indictment provides that throughout this roughly eighteen-month period, defendant frequently “billed time to the IRONBRIDGE contract” in the amount of 8 hours per day. ECF 1, ⁋ 9.

From March 14, 2016 through October 31, 2016, defendant had 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 McComber's time, in the sum of $388, 878.78, and NSA “paid these charges in full . . . .” Id. ⁋ 11.

In 2017, NSA conducted a review of McComber's “access control (key card) information with the time InfoTeK billed for her work” and found 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 subsequently billed to the NSA.” Id. ⁋ 12. As the Indictment summarizes, there were 326 days between March 15, 2016 and September 8, 2017, and on 322 of the days, defendant's “billings exceeded the amount of time she was actually in access control at the NSOC . . . .” Id. Moreover, the Agency's review purportedly found that on 218 of the 326 days that McComber claimed to have worked, she “did not access her assigned work station at the NSOC at all.” Id. And, InfoTeK billed 8 hours for the defendant on 204 of those days. Id.

Further, the Indictment alleges: “In addition to not being physically present at the NSOC worksite for the vast majority [of] hours she billed to the IRONBRIDGE contract, McComber did not in fact work the number of hours on the IRONBRIDGE contract that she recorded on her time records . . . .” Id. ⁋ 13. Specifically, the Indictment states that “on various occasions when [defendant] billed a full eight-hour day, ” McComber went on vacations, attended charity events, and completed work outside the scope of the Contract. Id. ⁋ 14. As a result, according to the Indictment, defendant caused InfoTeK to submit “materially false, fictitious, and fraudulent invoices” to the NSA. Id. ⁋ 15.

Paragraph 16 of the Indictment contains a list of nineteen counts. For each, it specifies the invoice date; defendant's hours billed on that date; defendant's hourly rate; and the total amount charged to NSA and paid by the Agency. Further, it states that defendant submitted false and fraudulent claims “for services that were not in fact performed by [defendant] in connection with the IRONBRIDGE contract, to wit, the full amount of the hours listed in the invoices set forth . . . .” (Emphasis added).

Of relevance to the Motion, the Indictment does not specify the number of hours billed to the NSA that the government believes McComber actually performed pursuant to the Contract. However, the government has produced voluminous discovery. See ECF 21-2; ECF 21-3.

Specifically, since April 2021, the government has provided the defense with more than 18, 000 pages of discovery material that includes “46 witness interview [sic] and other investigative reports and 26 complete transcripts of witness interviews.” ECF 21 at 10. It has also provided materials subject to the Jencks Act, 18 U.S.C. § 3500, “much earlier than” such materials “are normally turned over by the government.” Id. And, it has prepared a spread sheet that documents, by date, the defendant's location, alleged “discrepant hours” in billing, and other information. See ECF 21-4.

II. Discussion

A.

In the Motion, defendant specifies eight requests for particulars applicable to Counts One through Nineteen of the Indictment. ECF 20 at 1-2. Defendant's first request asks the government to...