Case 7:14-cr-00440-VB Document 67 Filed 10/01/15 Page 1 of 7

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
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v.
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THOMAS W. LIBOUS,
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Defendant.
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MEMORANDUM DECISION
14 CR 440 (VB)

Pending before the Court is defendant Thomas W. Libouss motion for a judgment of
acquittal under Rule 29, or, in the alternative, for a new trial in the interest of justice under Rule
33. (Doc. #62).
For the reasons set forth below, the motion is DENIED.
Viewing the evidence in the light most favorable to the government, and drawing all
reasonable inferences in its favor, see United States v. Cot, 544 F.3d 88, 98 (2d Cir. 2008), the
evidence at trial established that Senator Libous was actively involved in getting his son,
Matthew Libous (Matthew), a job at the Santangelo, Randazzo & Mangone (SRM) law firm
in the fall of 2005, and that he arranged for Ostroff Hiffa & Associates, a lobbying firm that
regularly lobbied the senator, to contribute $50,000 towards Matthews $150,000 salary. The
evidence also established that on June 24, 2010, Senator Libous told agents of the Federal
Bureau of Investigation, who were investigating allegations that he had corruptly obtained the
SRM job for Matthew, that he could not recall how Matthew came to work at SRM and was not
involved in Matthews decision to work there; no deals were made to get Matthew the SRM job;
he had no business or personal relationship with SRM and never promised to refer work to the
firm; and he did not know of any relationship between Ostroff Hiffa and SRM and was not aware
Ostroff Hiffa had paid any part of Matthews salary. The evidence further established that each
of these statements was materially false. Finally, the evidence established that Senator Libous
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knowingly and intentionally lied to the FBI to cover up the highly suspicious manner in which
the job was obtained and how Matthew was to be paid, and specifically defendants involvement
therein.
In short, the evidence is sufficient to support the jurys verdict because any rational trier
of fact could have found the essential elements of the charged false statement offense, 18 U.S.C.
1001, proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Defendants various attacks on the verdict are without merit.
First, the government did not fail to prove venue. The evidence showed that the false
statements, although made in defendants Albany office in the Northern District of New York,
were received and acted upon in the White Plains, in the Southern District of New York. See
United States v. Wilson, 512 Fed. Appx. 75, 78 (2d Cir. 2013). The jury was entitled to credit
Agent Silveris testimony that after he and another agent interviewed Senator Libous, the agents
returned to White Plains where they briefed a third agent about what had transpired. Thereafter,
the investigation continued, as other agents conducted additional interviews to gather additional
information. Defendant cites no authority for the proposition that the government was required
to prove some other specific impact that the interview had on the investigation (D. Br. 6), and
the Court has found none.
Second, although the jury could certainly consider the fact that no recording or transcript
of the interview was made, Agent Silveris testimony alone was sufficient to establish what the
defendant said to the agents on June 24, 2010. See United States v. Poindexter, 951 F.2d 369,
388 (D.C. Cir. 1991); United States v. Cervone, 907 F.2d 332, 343 (2d Cir. 1990). Silveris
testimony did not constitute speculation merely because he could not recite word-for-word
the questions asked and the answers given. (D. Br. 7). Also, Silveris testimony was detailed

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and specific insofar as he testified that Senator Libous said he could not recall how Matthew
came to work at SRM; he was not involved in Matthews decision to work there; no deals were
made to get Matthew the SRM job; he had no business or personal relationship with SRM; he
never promised to refer work to the firm; he did not know of any relationship between Ostroff
Hiffa and SRM; and he was not aware Ostroff Hiffa had paid any part of Matthews salary.
Whether this constituted proof beyond a reasonable doubt was a jury question; the jury resolved
that question against defendant. 1
Third, there was no material difference between Agent Silveris testimony and what was
explicitly charged in the indictment. The government presented evidence sufficient to prove that
Senator Libous made false statements to the FBI about his knowledge of and participation in
Matthews hiring at the SRM law firm and how Matthew would be paid, and the indictment
clearly set forth the substance of these statements. Thus, there was no variance between the
indictment and the evidence that rose to the level of a constructive amendment of the indictment
or that otherwise would warrant reversal or a new trial. See United States v. Bastian, 770 F.3d
212, 220 (2d Cir. 2014). Moreover, the indictments reference to the Westchester law firm, as
compared to the agents references to Anthony Mangone, is immaterial. Mangone was the
named partner at SRM, a small law firm, who was principally responsible for Matthews hiring
by the firm. The jury could reasonably infer from Silveris references to Mangone that Senator
Libous was talking about the law firm when he told Silveri he had no relationship with Mangone;
had no recollection how Matthew gained employment with Mangone; was not aware of any
relationship between Ostroff Hiffa and Mangone; and was not aware of any payments made from
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Defendant contends it was surprising the government did not call as a witness the other
agent present for the interview. (D. Br. 2). Whether or not it was surprising, that decision is not
reviewable by the Court. The only question is whether the evidence presented was sufficient to
support the verdict.
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Ostroff Hiffa to Mangone. Finally, to the extent Silveris testimony on cross differed from his
testimony on direct, it was ultimately a jury question whether the government proved the alleged
false statements beyond a reasonable doubt or not. Again, the jury resolved that question against
defendant, as it was entitled to do.
Fourth, the Courts reference in its jury charge to the indictments use of the phrase in
substance did not alter the elements of the charged offense or suggest the jury was free to go
far beyond the seven distinct statements included in the Indictment and find Defendant guilty on
any similar statement regardless of how remote that similarity may be. (D. Br. 14). There
was nothing improper about the indictments use of in substance in describing the alleged false
statements, and the phrase did not need to be defined because it was reasonably within the
common understanding of the jurors. See United States v. Sirois, 87 F.3d 34, 41 (2d Cir. 1996);
United States v. Johnpoll, 739 F.2d 702, 712 (2d Cir. 1984). Moreover, oral statements, when
there is no recording or verbatim transcript, are necessarily charged and proven in substance.
Most important, the Court made clear to the jury that to return a guilty verdict it had to agree
unanimously that at least one of the statements specified in the indictment was a material false
statement and that defendant made that false statement knowingly and willfully. Nothing in the
charge suggested to the jury that it was permitted to find defendant guilty based on some
similar statement not specified in the indictment. In summation, defense counsel argued the
evidence of what defendant said to Agent Silveri was too vague and ambiguous to support a
conviction, or was otherwise inconsistent with what was charged in the indictment. These were
legitimate jury arguments because if the jury agreed the government had not proven beyond a
reasonable doubt that defendant made the statements specified in the indictment, or that the

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statements he made were not false, it would have to acquit. But the jury rejected that argument,
as it had the right to do.
Fifth, the Court properly instructed the jury on the element of willfulness. It was a jury
question whether defendant acted with the intent to do something the law forbids, that is, with
the bad purpose to disobey or disregard the law. Here, the evidence was sufficient to show that
Senator Libous deliberately lied to federal law enforcement officers who were investigating
whether he had corruptly obtained a job for his son, and that he did so for the bad purpose of
covering up his highly suspicious involvement in the scheme. Contrary to defendants
arguments, in a Section 1001 prosecution such as this, the Court was not required to charge that
the government needed to prove defendant knew his conduct (i.e., making an unsworn false
statement in a voluntary interview (D. Br. 17)) was unlawful and also that he had the specific
intent to deceive. Rather, it was sufficient to charge, as the Court did in this case, that defendant
was aware of the generally unlawful nature of his conduct. See United States v Whab, 355 F.3d
155, 160-62 (2d Cir. 2004). 2
Finally, Mangones testimony, in combination with the other evidence presented, was
sufficient to support the verdict. To be sure, Mangone was the governments key witness, and
his credibility was effectively attacked on cross-examination, in summation, and otherwise
throughout the trial. But it was entirely a jury question whether to credit Mangones testimony.

Although the government did not need to prove defendant knew his conduct was
unlawful and had the specific intent to deceive, the evidence would have supported such a jury
determination. As of June 24, 2010, Senator Libous had served as a high level public official
and legislator for decades. He knew the FBI was investigating his alleged involvement in a
highly suspicious effort to obtain a high-paying job for his son by, among other things, arranging
for a lobbying firm that frequently lobbied him in his official capacity to contribute $50,000
towards his sons salary. The jury surely could have inferred he knew that lying to the FBI was a
criminal act, and that he did specifically intend to deceive the agents into thinking he was not
involved.
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See United States v. OConnor, 650 F.3d 839, 855 (2d Cir. 2011); United States v. Roman, 870
F.2d 65, 71 (2d Cir. 1989). Indeed, the Court instructed the jury it was the sole judge of the
witnesses credibility and the weight their testimony deserved, and, moreover, it was required to
scrutinize Mangones testimony with great care and special caution. The jurys apparent
conclusion that Mangone was credible will not be disturbed by the Court. Indeed, the
government corroborated Mangones testimony with telephone, bank, and E-Z Pass records, as
well as the testimony of other witnesses, in particular, Richard Ostroff and Lisa Santangelo. The
governments decision not to call certain other witnesses, such as Fred Hiffa and Michael
Santangelo, is not reviewable by the Court. The only question is whether the evidence taken as a
whole and construed in a light most favorable to the government supports the jurys verdict. It
does.
As to defendants motion, in the alternative, for a new trial in the interest of justice under
Rule 33, the Court is convinced Senator Libous received a fair trial from a properly instructed
jury. The jury did have to resolve critical credibility issues involving Mangone and Silveri. It
did so in the governments favor. The Court has no doubt about the soundness of the verdict.
Thus, the Court is not concerned that an innocent person was convicted, or that it would be a
manifest injustice to let the verdict stand. See United States v. Sanchez, 969 F.2d 1409, 1414 (2d
Cir. 1992). Accordingly, the interest of justice does not require a new trial.
Defendants motion for a judgment of acquittal under Rule 29, or, in the alternative, for a
new trial under Rule 33, is DENIED.

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The Clerk is instructed to terminate all of the open motions on the docket. (Docs. ##18,
54, 57, 60, 62).
Dated: October 1, 2015
White Plains, NY

SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge