by BLOOMBERG

TIM LEISSNER (picture) was supposed to be the U.S. government’s star witness in the bribery case against Roger Ng, the only Goldman Sachs Group Inc. banker to go to trial in the multibillion-dollar 1MDB scandal.

Instead, a misstep over crucial evidence about Leissner could end up tanking the case, after the U.S. disclosed that it failed to turn over to the defense more than 15,500 documents related to him.

On Wednesday the judge said she would pause the trial to give the defense time to review the newly disclosed evidence, which the government says it discovered Tuesday night.

In a hearing outside the jury’s presence, Ng’s lawyer Marc Agnifilo told the court he may ask for a mistrial.

‘Middle of the Night’

“In the middle of the night we got a letter from the government describing by its own admission an ‘inexcusable’ discovery disclosure,” an angry Agnifilo told U.S. District Judge Margo Brodie in federal court in Brooklyn, New York. He added that he had complained for at least two and a half years about the government’s “slow-walking” evidence he needs to defend his client.

“The government absolutely did not live up to its obligation,” Agnifilo said. “This is a categorically serious failure. This is unforgivable.”

In a letter filed with the court, prosecutors said the government failed to disclose the evidence related to Leissner, who was Ng’s boss at Goldman. Leissner is crucial to the government’s argument that Ng conspired with him, while Ng’s lawyers said Wednesday that the documents support their argument that Ng played no role in the scheme.

The error “is inexcusable,” prosecutor Alixandra Smith said in the letter.

$35 Million Payment

Agnifilo said some of the evidence he has reviewed rebuts the government’s claims that Leissner, who has pleaded guilty and is cooperating with prosecutors, paid Ng a $35 million kickback for his role in the 1MDB scandal. Agnifilo said the evidence supports the defense theory that the money was a transfer from Leissner’s wife to Ng’s wife for a separate business transaction.

He told the judge he is considering making a request for a mistrial and may also ask for the charges to be dismissed if he concludes Ng’s right to a fair trial has been hampered by the failure to disclose the material.

Prosecutor Drew Rolle told the judge his direct examination of Leissner should conclude by Thursday. Brodie will suspend the trial after that testimony concludes to allow Ng’s defense team time to review the new documents before they cross-examine Leissner.

Wednesday’s disclosure comes after prosecutors in Manhattan federal court were dressed down two years ago for their failure to turn over evidence in a case. U.S. District Judge Alison Nathan issued a blistering opinion in September 2020 stating there were “serious and pervasive issues” involving disclosure and misleading statements by the government attorneys. She called for an investigation and required that every prosecutor in that office read her decision.

The case is U.S. v. Low Taek Jho, 18-cr-538, U.S. District Court, Eastern District of New York (Brooklyn).